author: HUDOCK, Judge:

text:
    595 A.2d 1205
    Vivian E. ARASI, Appellant, v. NEEMA MEDICAL SERVICES, INC., Appellee, Vivian E. ARASI, M.D., Appellee, v. NEEMA MEDICAL SERVICES, INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 5, 1991.
    Filed Aug. 1, 1991.
    Reargument Denied Sept. 23, 1991.

      Stephen D. Wicks, Altoona, for appellant in No. 1683 and appellee in No. 1684.
    John W. Heslop, Jr., Altoona, for appellant in No. 1684 and appellee in No. 1683.
    Before OLSZEWSKI, HUDOCK and HOFFMAN, JJ.
   HUDOCK, Judge:

This is an appeal by Vivian Arasi, M.D., (Dr. Arasi), and a cross-appeal by NEEMA Medical Services, Inc., (NEEMA), from a judgment awarding Dr. Arasi restitution damages in her claim against NEEMA on a theory of promissory estoppel in the amount of $27,000. Post-trial motions were timely filed and denied by the trial court and these appeals followed.

Dr. Arasi claims in her appeal that she should have been awarded damages representing benefit-of-the-bargain rather than restitution. NEEMA, in its appeal, claims several errors by the trial court: (1) promissory estoppel was an improper basis for this action; (2) it was improper to sequester the defense witnesses at trial; (3) the trial court should have granted a directed verdict; (4) the restitution damage figure was incorrect; and (5) Dr. Arasi should not have been permitted to testify to the negotiations between NEEMA and herself since a written agreement with integration clause arose from those negotiations.

The facts in this case as summarized by the trial court are:

[Dr. Arasi] is a physician hired by [NEEMA] to fill a staff position at the Altoona Center. [Dr. Arasi] received her medical education in Nigeria. At the time [Dr. Arasi] signed the employment contract with [NEEMA], she was not licensed to practice medicine in the Commonwealth of Pennsylvania. [NEEMA] was aware of the fact that [Dr. Arasi] did not have a Pennsylvania license, but nevertheless had [Dr. Arasi] execute an employment contract in October of 1985, and then allowed her to begin an orientation period on November 1, 1985.
During contract negotiations, [Dr. Arasi] informed [NEEMA] that she had experienced delays in obtaining licenses in other states because of difficulty in communicating with her medical school in Nigeria. Mr. Rick Robinson [NEEMA’s recruiter] told [Dr. Arasi] that [NEEMA] employed a person who could help her expedite the licensing process. [Dr. Arasi] received a letter dated December 20, 1985 from [NEEMA] in which she was informed that unless she received her license by December 24, she would be terminated. [Dr. Arasi] testified that had she known at the outset a licensure deadline of December 24 was going to be placed on her, she would not have accepted the position with [NEEMA]. [Dr. Arasi] did not receive her license by the deadline and was terminated as of December 24, 1985.

(Trial Court Opinion, 9/28/90, at 3) (citations omitted). Before we can address the merits of these cross-appeals, we must first characterize the agreements between Dr. Arasi and NEEMA.

First, it is clear from the record that Dr. Arasi signed a subcontractor agreement to work as a physician in the Altoona Center, a facility run by the Commonwealth of Pennsylvania and serviced with personnel under contract through NEEMA. This subcontractor agreement was to cover the term beginning November 1, 1985, through June 30, 1987. An amendment to the agreement, executed at the time of the original agreement, provided for compensation in the amount of $52,000 for the period November 1, 1985, through October 31, 1986, and $54,000 thereafter until the completion of the term. Section 1.02 of the subcontractor agreement states:

Subcontractor is a duly qualified and licensed physician, having had experience in the operation of facilities similar to Ebensburg and Altoona Centers and the rendition of medical care. Subcontractor must be acceptable to Ebensburg and Altoona Centers. If for any reason, subcontractor is not acceptable to Ebensburg and Altoona Centers, whether justified or not, this agreement may be terminated at the option of [Commonwealth of Pennsylvania].

(Complaint, Exhibit A) (emphasis added).

Second, the trial court found that there was an oral understanding between NEEMA and Dr. Arasi that Dr. Arasi should come to the Altoona Center, despite the lack of her medical license in Pennsylvania, provided she attempt to procure that license as soon as possible. The trial court also found that Dr. Arasi rented her home in Maryland to tenants in a long term lease, moved to Pennsylvania, bought a townhouse, and began work at the Altoona Center on November 1, 1985. Dr. Arasi understood that NEEMA was anxious to fill the vacant position and understood that it could take time to obtain the necessary records to compíete Dr. Arasi’s licensure. Dr. Arasi understood that she would be permitted to work at the facility, performing duties which did not require a license, for a reasonable time until she obtained her license. It is this second agreement which is the subject of this appeal. The parties’ arguments in these appeals attempt to combine the subcontractor agreement with the understanding of work while licensing was being obtained. They are two distinct agreements, as the trial court correctly held. We have been unable to locate a decision of this Court, or one of the Supreme Court, which deals with this issue directly. We are persuaded, however, by the reasoning in the Commonwealth Court’s recent decision in Travers v. Cameron County School District, 117 Pa.Commw. 606, 544 A.2d 547 (1988). In Travers, the court dealt with an Ohio teacher who was hired to fill a physical education position with a Pennsylvania school district. Travers was interviewed for the position, which also included extracurricular assistant football and track coaching duties. He was told that he was qualified for the position and offered the position. The school district also told Travers that it would file the necessary papers to obtain his Pennsylvania teaching certificate. Travers signed a two-year temporary professional employee contract, moved to Pennsylvania, and began his duties under the contract. Shortly after the school year began, the school district informed Travers that he was not qualified for the position and would have to enroll in courses to acquire the necessary credits before he could get his Pennsylvania teaching certificate. The school district informed Travers, at that time, that if Travers failed to obtain the necessary credits by the second semester, his contract would be cancelled. The school district gave Travers an unpaid leave of absence for the semester in question, but by the time Travers was informed of his lack of qualifications, the courses he needed had already begun.

Travers was able to establish that the school district had orally agreed that he was qualified for the position when he was hired and that the school district told Travers that it would take care of the necessary paperwork. In reliance on that understanding, Travers accepted the position and moved to Pennsylvania, foregoing other employment or the pursuit of his teaching certificate on his own. The Court in Travers noted:

It is clear that [Travers’] inability to qualify for the certification makes his contract with School District unenforceable. The contract [Travers] signed contains a provision stating: “This contract is subject to the provisions of the Public School Code of 1949 ... and amendments thereto, regarding all qualifications and certifications as required therein.” Section 1252 of the Public School Code of 1949 provides that “[n]o person shall teach in a public school in the Commonwealth unless he has met the certification requirements____”

Id., 117 Pa.Commw. at 612, n. 2, 544 A.2d at 550 n. 2. The Court properly considered the contract of employment separate from the oral understanding that the school district considered Travers qualified and would pursue certification on his behalf.

Applying this analysis to our present situation, Dr. Arasi’s subcontractor’s agreement was unenforceable until she obtained her Pennsylvania medical license. Similarly, her understanding of work for a reasonable time until licensing is a separate agreement which we must examine independently of the written subcontractor agreement.

The Court in Travers then discussed the understanding between Travers and the school district.

[Travers] alleges that School District assured him that he was qualified as a physical education teacher and promised to prepare and submit the requisite Pennsylvania certification applications if [Travers] accepted the position. [Travers] claims that as a result, he was induced to accept the physical education job, to move to Emporium, Pennsylvania from Cleveland, Ohio, and to actually begin work. It may be inferred from this that [Travers] discontinued further job search and forbore from obtaining the requisite certification himself. [Travers] alleges that by the time the School District informed him that it could not obtain any type of certification for him because he was not qualified, the classes he needed to obtain certification were already well underway.

Id., 117 Pa.Commw. at 613-14, 544 A.2d at 551.

We recently restated the elements of promissory estoppel in Rinehimer v. Luzerne County Community College, 372 Pa.Super. 480, 539 A.2d 1298 (1988) alloc. den., 521 Pa. 606, 555 A.2d 116 (1988):

(1) Misleading words, conduct or silence by the party against whom the estoppel is asserted,
(2) unambiguous proof of reasonable reliance on the misrepresentation by the party seeking to assert the estoppel, and
(3) no duty of inquiry on the party seeking to assert estoppel.

Id., 372 Pa.Superior Ct. at 496, 539 A.2d at 1306 (emphasis added). The Court in Travers found that Travers had stated a cause of action for promissory estoppel and quoted the Restatement (Second) of Contracts § 90 which provides in part:

Promise Reasonably Inducing Action or Forbearance
(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

Id., 117 Pa.Commw. at 613, 544 A.2d at 550-51.

Travers sought not to enforce the school district’s promise to obtain his certification because he could not do that until he had completed the requisite qualifications. Instead, Travers sought:

damages based on the actual amount of money he expended in negotiating for the job and the amount of money he would have received in actual salary and benefits for one year’s employment with School District. This is consistent with the intent of promissory estoppel to prevent injustice.

Travers, 117 Pa.Commw. at 614 n. 5, 544 A.2d at 551 n. 5. The Court then cited Comment d to Restatement (Second) of Contracts § 90:

A promise binding under this section is a contract, and full-scale enforcement by normal remedies is often appropriate. But the same factors which bear on whether any relief should be granted also bear on the character and extent of the remedy. In particular, relief may sometimes be limited to restitution or to damages or specific relief measured by the extent of the promisee’s reliance rather than by the terms of the promise____ Unless there is unjust enrichment of the promisor, damages should not put the promisee in a better position than performance of the promise would have put him.

Id. Travers was essentially claiming restitution damages, but he was also claiming salary for a year when he had only been performing his duties for a few days. This would seem to be benefit-of-the-bargain damages, but, upon closer examination, this may not have been the case. The court did not address the issue of damages because this proceeding was at a preliminary stage. But given the school calendar, and the normal hiring of teachers, it is reasonable to assume that teachers would only be hired once a year, and to put Travers back in the position he would have been in if he had not accepted the position with the school district, may have included salary for that one year period.

In the present situation, the trial court held:

[Dr. Arasi] was led to believe, from negotiation statements of [NEEMA’s] employees, that licensure would pose no problem to [Dr. Arasi’s] accepting a job with [NEEMA]. [Dr. Arasi] expressed her concern to [NEE-MA] that the licensing process could be lengthy because of the difficulty in communicating with the foreign medical school. [NEEMA] assured [Dr. Arasi] that they would assist her with licensing and that her lack of Pennsylvania licensure would pose no threat to her employment. In other words, [NEEMA] so wanted to hire [Dr. Arasi] that they were willing to wait for her to receive a Pennsylvania license. Thus, the first element of a promissory estoppel action is satisfied. [NEEMA] made the assurances with respect to licensure in order to convince [Dr. Arasi] to accept the job.
The second criterion is met when [Dr. Arasi], relying on [NEEMA’s] promise, accepted the position and moved to Pennsylvania to begin working. [Dr. Arasi] incurred expenses associated with the move from Maryland to Pennsylvania. These expenses would not have been incurred had [Dr. Arasi] known that licensing would pose a problem to her job with [NEEMA]. [Dr. Arasi] also gave up her job in Washington, D.C. in order to take the job in Altoona. [Dr. Arasi] relied on the promises of [NEEMA], and suffered losses when [NEEMA] failed to live up to their promises.
* SH S}! sjc $ #
The third criterion for promissory estoppel involves preventing injustice by enforcing the promise____ In this matter, the jury concluded that Dr. Arasi’s reliance was entitled to legal protection.

(Trial Court Opinion, 9/28/90, at 5-6). NEEMA asserts, however, that there is no promissory estoppel by silence, and that there was never any oral or written agreement to permit Dr. Arasi to work until she was licensed. NEEMA’s understanding of the law of promissory estoppel is misplaced because, as Rinekimer, supra, points out, even the silence of the promisor may be binding.

Having found that Dr. Arasi has established promissory estoppel, the issue of what damages are appropriate must next be resolved. Dr. Arasi claims she is entitled to benefit-of-the-bargain damages rather than the court-awarded restitution damages. As Travers indicates, the written agreement, in our case the subcontractor agreement, is unenforceable until Dr. Arasi obtains her license. Furthermore, Section 1.02 indicates that the Commonwealth, which runs the Altoona facility, could terminate Dr. Arasi for any reason at any time. We agree with the trial court’s analysis which reads:

We find the damages proposed under the benefit-of-the-bargain measure to be totally inconsistent with the theory of promissory estoppel. This measure essentially enforces the terms of the employment contract by awarding [Dr. Arasi] the wages that she would have earned had she worked out the term of the contract. The promise that is the basis of this lawsuit is not that [Dr. Arasi] would remain in [NEEMA’s] employ for the duration of the contract, but rather that [Dr. Arasi] would remain employed until she obtained her license. It is not reasonable for [Dr. Arasi] to expect that she would be entitled to the enforcement of an employment contract whose terms provided that she could be dismissed at any time and without cause. An award under the benefit-of-the-bargain measure would put [Dr. Arasi] in a better position than performance of the promise would have put her in.

(Trial Court Opinion 3/13/90, at 8). We are persuaded that the trial court awarded the correct measure of damages when it awarded restitution damages in the amount of $27,000 to Dr. Arasi.

The final two issues raised by NEEMA are (1) the sequestering of witnesses and (2) whether a directed verdict should have been granted. We find, after a thorough review of the record in this case, that the Honorable Jolene Grubb Kopriva has prepared a well-reasoned opinion which properly and adequately disposes of these two issues. We therefore affirm on the basis of that opinion as to those issues.

Judgment affirmed.

      . NEEMA alleges in its response to Dr. Arasi’s brief that her appeal should be quashed as untimely filed. We note that the order awarding restitution damages following the jury verdict in favor of Dr. Arasi was decided by the court on March 12, 1990, but the order was not entered until October 11, 1990, after denial of her post-trial motions. Dr. Arasi filed her notice of appeal on October 22, 1990. Pa.R.A.P., Rule 903, 42 Pa.C.S.A., provides, in pertinent part:
      (a) General Rule. Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.
      Dr. Arasi filed her notice of appeal within the 30 day requirement here.

      . NEEMA argues that the trial court erred in permitting Arasi to testify concerning the understanding that she would be permitted to remain at work until licensing was complete. In effect, NEEMA’s argument is that the trial court permitted parol evidence to be admitted despite the presence of a signed, integrated agreement. Because we find that there were two agreements present, the written subcontractor agreement and the oral agreement concerning licensure, we do not find that parol evidence is an issue in this case. The agreement under question in this appeal is the oral one concerning work while waiting for licensure. It was proper for the trial court to permit testimony on that agreement. We therefore decline to entertain an analysis of parol evidence on this issue.

      . NEEMA alleges that the amount of restitution damages was, in fact, a sum somewhat less than that awarded. We agree with the trial court that this issue is waived because NEEMA failed to object to the amount at trial. The trial court stated:
      In reviewing the trial transcript, we conclude that [NEEMA] has waived the issue of the proper amount of wage loss. Post-trial relief may not be granted where the allegation of error was not raised at the trial. Pa.R.C.P. No. 227.1(b)(1). [NEEMA] permitted [Dr. Arasi’s] Exhibit No. 11(a) to go to the jury without objection as to the amount of restitution wage loss set forth in the exhibit. [NEEMA] placed on the record an objection to the benefit-of-the-bargain measure in general, but said nothing with regard to the restitution measure. Therefore, we will not allow [NEEMA] to argue an error in the amount of damages awarded under the restitution measure where grounds for the objection were available at the time of trial, and [NEEMA] failed to raise the issue.
      (Trial Court Opinion, 9/28/90, at 15, citation omitted).


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    595 A.2d 1211
    GEMINI EQUIPMENT CO., Appellant, v. PENNSY SUPPLY, INC. GEMINI EQUIPMENT CO. v. PENNSY SUPPLY, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed Aug. 1, 1991.
    Reargument Denied Sept. 20, 1991.

      David J. Foster, Lemoyne, for appellant in No. 324 and appellee in No. 369.
    Ronald Katzman, Harrisburg, for appellant in No. 369 and appellee in No. 324.
    Before JOHNSON, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal and cross-appeal from the judgment entered granting appellant possession of the automobile in question but denying appellant the award of special damages. We affirm.

On appeal, appellant, Gemini Equipment Company (“Gemini”) raises the sole issue of whether the lower court erred in denying special damages in a replevin action after having found appellant entitled to possession of an automobile unlawfully detained by Pennsy Supply, Inc. (“Pennsy”). Cross-appellant Pennsy asks this court to consider this same issue as well as the following three questions: (1) whether Gemini has waived all issues by failing to file Post-Trial Motions; (2) whether the lower court erred in finding that Gemini was entitled to immediate possession of the car; and (3) whether the lower court erred in precluding Pennsy from presenting certain evidence. We will consider each issue below.

This case began as an action in replevin which Gemini brought to recover an automobile owned by Gemini but leased to Pennsy. Gemini and Pennsy had entered into a written agreement dated February 12, 1984 whereby Gemini agreed to lease a new automobile to Pennsy in return for a monthly sum of $1,576.65 plus $94.60 tax. The lease was originally intended to run from December 30, 1983 thru December 31, 1986. In fact, Pennsy made monthly payments to Gemini thru December, 1987. However, Pennsy claims that the 1987 payments were made pursuant to a separate oral agreement between Pennsy’s original president, Robert M. Mumma (now deceased) and Gemini’s president Robert M. Mumma, II. Gemini disputes the existence of such an agreement.

Gemini filed an action in replevin in August, 1988, claiming that Pennsy unlawfully possessed the car owned by Gemini. Additionally, Gemini sought special damages in the way of costs and interest from Pennsy’s unlawful possession of the automobile. Pennsy argued that Gemini’s failure to renew the automobile’s registration constituted a breach of the lease agreement thereby excusing Pennsy from making further payments. A non-jury trial was held before the Honorable Sebastian D. Natale of the Dauphin County Court of Common Pleas on November 20, 1989. By order dated April 26, 1990, the lower court ruled that Pennsy was improperly in possession of the vehicle and ordered the corporation to return it to Gemini. However, Judge Natale refused to award special damages to Gemini, concluding that Gemini’s refusal to renew the registration resulted in the car being undrivable. As a result, Pennsy owed no money to Gemini and Judge Natale ordered Gemini to assume all costs incurred from the car’s detention. Lower Court slip opinion filed 4/26/90 at 3.

On May 4, 1990, Gemini filed a “Petition for Reconsideration of April 26, 1990 Opinion and Order” requesting the lower court to reconsider both its refusal to award special damages and protesting the presence of superfluous comments found in the lower court opinion. In response to this petition, Pennsy, on May 14, 1990, filed a Motion to Quash said Petition and, in the alternative, an Answer to Gemini’s Petition. In conjunction therewith, Pennsy also filed a Motion for Post Trial Relief raising several errors of law committed by the lower court. Gemini subsequently filed an answer to Pennsy’s motion to quash the petition for reconsideration.

On May 24, 1990, while the above-mentioned motions were still pending, Gemini entered judgment against Pennsy pursuant to the April 26, 1990 Opinion and Order. Less than a week later, Gemini filed a timely appeal to this court to which Pennsy filed a cross-appeal. By an order dated July 16, 1990, the lower court advised the parties to submit briefs in support of their Post-Trial Motions. In a subsequent opinion filed July 25, 1990, Judge Natale declared the order of July 16 to be null and void and denied the parties’ Post-Trial Motions.

We first address Pennsy’s claim that Gemini has waived all issues by failing to file proper post-trial motions pursuant to Pa.R.C.P., Rule 227.1, 42 Pa.C.S.A. Under Rule 227.1(b), post-trial relief may not be granted unless the reasons therefore are properly raised in a valid motion. Pennsy argues that in lieu of filing post-trial motions, Gemini entered judgment on the lower court’s order. By so doing, Pennsy claims that Gemini has waived all issues raised in its brief to this court. We disagree.

Under Rule 227.1(a)(4), a post-trial motion may ask the court to affirm, modify or change its decision. In substance, Gemini’s “Petition for Reconsideration” was intended to perform this function. Had Gemini properly labeled its petition as a “Motion for Post-Trial Relief,” Pennsy could have no dispute with its validity. We will not construe the rules of procedure so narrowly as to allow a minor procedural error to affect the substantive rights of the litigants. Pa.R.C.P., Rule 126, 42 Pa.C.S.A. For these reasons, we find that the parties have filed proper post-trial motions and all issues are thereby preserved for this appeal.

Our next issue for consideration is whether the lower court erred by not awarding special damages to Gemini after having concluded that Gemini was entitled to immediate possession of the automobile. Gemini argues that Pa. R.C.P., Rule 1085(b), 42 Pa.C.S.A. (governing judgment after a replevin trial) mandates the award of damages after a finding that a party is in wrongful possession of property. The thrust of this argument is that by failing to comply with the language of the replevin statute, the trial court committed an error of law. We find appellant’s argument unpersuasive.

We note initially that our scope of review is quite limited in cases in which the final order of the trial judge is called into question. We are bound by the findings of the trial court which have adequate support in the record, so long as the findings do not evince capricious disregard for competent and credible evidence. In re J. W., 396 Pa.Super. 379, 387, 578 A.2d 952, 956-57 (1990). The trial court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence. Id. However, this court is not bound by the trial court’s conclusions of law. Minteer v. Wolfe, 300 Pa.Super. 234, 238, 446 A.2d 316, 318 (1982). We may draw our own conclusions from the facts as established. Id.

The lower court concluded that Gemini was not entitled to special damages because their actions precluded Pennsy from using the car for an extended period of time. The lease agreement entered into by the parties required Pennsy to make rental payments for use of the vehicle. By not renewing the car’s registration, Gemini prevented Pennsy from using the automobile, thereby excusing Pennsy from making rental payments on the car. Equitable principles are applicable to a legal action in replevin. See Brandywine Lanes, Inc. v. Pittsburgh National Bank, 220 Pa.Super. 363, 284 A.2d 802 (1971). The trial court was correct in ruling that it would be unfair to reward Gemini for abrogating the contract by awarding damages to the party who initiated the breach. See Sprague v. Casey, 520 Pa. 38, 46, 550 A.2d 184, 188 (1988) (“He who seeks equity must do equity.”) Since we find no error of law in the lower court’s ruling, we hereby affirm the denial of special damages.

Next, cross-appellant Pennsy argues that the lower court’s finding that Gemini was entitled to possession of the vehicle was against the weight of the evidence. Pennsy contends that testimony was offered in court which clearly suggests the existence of a buy-out agreement. Further, Pennsy submits that they have complied with the terms of this agreement and are therefore entitled to possession of the automobile. We disagree.

We note initially that our scope of review on a weight of the evidence claim is very limited. We will respect the trial court’s findings with regard to credibility and weight of the evidence unless it can be shown that the lower court’s determination was manifestly erroneous, arbitrary and capricious or flagrantly contrary to the evidence. Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987). The traditional standard for a weight of the evidence inquiry is whether the verdict is so contrary to the evidence as to shock one’s sense of justice. Smith v. Brooks, 394 Pa.Super. 327, 344, 575 A.2d 926, 935 (1990).

Pennsy contends that the trial testimony of Ms. Marita Espenshade, Gemini’s bookkeeper in 1986-87, clearly indicates the existence of a buy-out agreement between the two parties. Ms. Espenshade testified to the presence of a file containing the automobile lease agreement. She also testified about a piece of paper containing the signatures of both Mr. Mumma and his son, Robert Mumma, II. When asked about the contents of this paper, however, Ms. Espenshade stated that she had not read it nor did she know of its contents. Pennsy asks us to infer from this testimony that the piece of paper in question was the alleged buy-out agreement. Such a broad leap of faith is beyond our powers, however. We find instead that the trial court’s determination that Gemini was entitled to the car was consistent with the evidence presented in the certified record. Accordingly, we affirm.

Our final issue for consideration is whether the lower court erred in excluding relevant evidence which would have compelled the finding of an oral buy-out agreement. Pennsy contends that in precluding the testimony of Mrs. Barbara McK. Mumma and Mr. Harry Lake, the lower court incorrectly applied the statute of frauds and the parol evidence rule as well as rules against hearsay evidence. The crux of Pennsy’s argument is that the parol evidence rule does not apply in this situation as the buy-out agreement was never intended to be covered by the written lease. The general rule governing the admission of such evidence is that parol evidence of a contemporaneous oral agreement is not admissible to alter, vary, add to, modify, or contradict a written instrument complete within itself unless the oral agreement was omitted through fraud, accident, or mistake. Bokser v. Lewis, 383 Pa. 507, 119 A.2d 67 (1956), cert. denied, 351 U.S. 965, 76 S.Ct. 1031, 100 L.Ed. 1485 (1956). Moreover, parol evidence is inadmissible to show a contemporaneous oral agreement which, if made, would naturally and normally have been contained in the written agreement between the parties. Universal Film Exchanges, Inc. v. Viking Theatre Corp., 400 Pa. 27, 161 A.2d 610 (1960); P.L.E. Evidence § 312. Thus the written contract, if unambiguous, must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements are admissible to explain or vary the terms of such a contract. McGuire v. Schneider, Inc., 368 Pa.Super. 344, 534 A.2d 115 (1987), aff'd per curiam 519 Pa. 439, 548 A.2d 1223 (1988) (citations and footnotes omitted).

Our standard of review for rulings on the exclusion of evidence is very narrow. An appellate court will reverse the ruling of the trial court only for an abuse of discretion or error of law. Concorde Investments v. Galla gher, 345 Pa.Super. 49, 56, 497 A.2d 637, 641 (1985). Pennsy contends that the parol evidence rule does not apply in this situation merely by the fact that the written lease agreement does not discuss the terms of a buy-out. It is precisely this absence, however, which leads us to believe that such an agreement was never reached. We take judicial notice of the common practice in the automobile leasing industry of inserting a buy-out provision in the lease agreement. We draw the parties’ attention to the example provided in Black’s Law Dictionary for the term “Bailment Lease.” To quote: “This right or option is common in auto lease agreements.” Black’s Law Dictionary, p. 129 (West 5th Ed.1979). Parol evidence is not admissible to show an agreement which normally is found in the written instrument. Universal Film Exchanges, Inc., supra.

Upon a thorough examination of the contract in question, we find no ambiguities which warrant the admission of either Mrs. Mumma’s or Mr. Lake’s testimony. The contract runs for a definite period of time, contains a fixed rental price and outlines the respective parties’ rights and obligations. The only item missing from the written lease is an integration clause. As we find neither ambiguous language nor unclear terms, we conclude that this instrument is an unambiguous and fully integrated contract which embodies the full intent of the parties. See, e.g., McGuire v. Schneider, Inc., supra. Accordingly, we hold that the trial court properly excluded the parol evidence to which Mrs. Mumma and Mr. Lake would have testified and we affirm on this issue.

Pennsy also claims that the trial court improperly applied the Statute of Frauds and various rules against hearsay evidence in excluding the above-mentioned testimony. Because the proffered testimony is precluded by the parol evidence rule, we need not consider these latter contentions.

Judgment affirmed.

      . Judge Natale aptly pointed out in his Memorandum of July 25, 1990, that this action by Gemini blatantly violates Pa.R.C.P., Rule 227.4(1), 42 Pa.C.S.A., which prohibits the entering of a judgment if timely post-trial motions are filed.

      . Our supreme court has noted that, as a general matter: “it is the order of the trial court disposing of a motion for post-trial relief that has been reduced to judgment which comprises the final order in the case from which an appeal must be filed within thirty days.” McCormick by McCormick v. Northeastern Bank, 522 Pa. 251, 254 n. 1, 561 A.2d 328, 330 n. 1 (1989). In this case, Gemini filed its appeal to us from the judgment entered on the lower court’s order of April 26, 1990. The proper method of appeal was for appellant to wait until the trial court ruled on the parties’ post-trial motions, enter judgment on that ruling, then file an appeal to this court. However, the procedural irregularities present in the instant case have not significantly hampered our ability to review the issues raised. Thus "in the interests of judicial economy, we shall regard as done that which should have been done.” Id. Therefore we will consider the merits of the parties’ contentions despite the posture of the case.

      . We note that if we found Gemini’s Petition for Reconsideration not to be a valid post-trial motion, then it would also have been necessary to find Pennsy's post-trial motion invalid as untimely filed. Pa.R.C.P., Rule 227.1(c), 42 Pa.C.S.A.

      . We do wish to warn the parties that this action is fraught with procedural irregularities that have not gone unnoticed by this court. As such disregard for the rules of procedure calls into question the propriety of counsel’s professional credibility, "we remind the parties ... that the rules are mandatory, not directory, and that in an appropriate case we will not hesitate to impose sanctions, including the draconian remedy of dismissing the appeal. See, e.g., Pa.R.A.P. 2188." Pleet v. Valley Greene Associates, 371 Pa.Super. 530, 531 n. 1, 538 A.2d 567, 568 n. 1 (1988).

      . Pennsy also relies on the deposition testimony of Mr. William Boswell. Mr. Boswell’s deposition transcript, however, is contained only in the supplemental, not certified, record. Paper may not be made part of the record simply by reproducing it. Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 563 n. 1, 534 A.2d 798, 801 n. 1 (1987), allocatur denied, 518 Pa. 656, 544 A.2d 1342 (1988). An appellate court may consider only facts which have been duly certified in the record on appeal. Button v. Button, 378 Pa.Super. 142, 145, 548 A.2d 316, 318 (1988), citing Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974); Barner v. Barner, 364 Pa.Super. 1, 9, 527 A.2d 122, 126 (1987). See Pa.R.A.P., Rule 1921, 42 Pa.C.S.A. (Composition of record on appeal). As Mr. Boswell’s deposition has not been made a part of the certified record, we may not consider it.

      . We do not believe that the "or more” clause referred to by Pennsy renders the time provision of this contract ambiguous. We construe this clause to mean simply that the parties may continue to lease the automobile for a period of time after the three year designation has been completed. The actual length of this extended time period is to be determined by the parties and appears to be on a month-to-month basis.


author:
POPOVICH, Judge:
      HOFFMAN, Judge,

text:
    595 A.2d 1216
    COMMONWEALTH of Pennsylvania, Appellant, v. James Kevin DAVIS, Appellee.
    Superior Court of Pennsylvania.
    Argued April 24, 1991.
    Filed Aug. 2, 1991.

      Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com.
    Thomas P. Lomax, West Chester, for appellee.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

The Commonwealth appeals the order of the Court of Common Pleas of Delaware County granting the motion to suppress of the defendant/appellee, James Kevin Davis. We reverse.

In reviewing the grant of a motion to suppress, “we, as an appellate court, must consider only the evidence of the defendant’s witnesses, and only so much of the evidence presented by the prosecution as remains uncontradicted by the record as a whole. When the evidence supports the factual findings of the suppression court, we may reverse only if there is an error of law.” Commonwealth v. Jenkins, 401 Pa.Super. 580, 585 A.2d 1078, 1079 (1991) (Citations omitted).

With the defendant’s failure to present any witnesses on his behalf, the evidence submitted by the Commonwealth remains uncontradicted and reveals that on June 8, 1990, Sergeant John Finnegan, of the City of Chester Police Department, filed an application for a search warrant with an affidavit attached. The application provided that the place and person to be searched were 408 Pancoast Place, a dwelling in the William Penn Project, and John Davis, Kevin Davis, a/k/a “Kevie-Kaz”, respectively. The items sought to be seized consisted of drugs, drug paraphernalia, U.S. currency and proof of residency. In the remaining portion of the warrant, the affiant set forth the profile of the confidential informant as to reliability and veracity. Lastly, in the affidavit section appeared the following:

Within the past 48 hrs. of the preparation of this search warrant the affiant listed on the face sheet of this warrant did [sic] speak with the confidential reliable informant also listed on the face sheet of the warrant. This informant did advise the affiant of a subject by the name of Kevin Davis a black male approx. 19 yrs. of age, who also has the street name of “Kevie Kaz”. The informant stated that the subject is ligt [sic ] skinned and lives at 408 Pancoast Pl. in the William Penn Project. The informant also stated that the subject has been selling cocaine for quite a while and is still selling cociane [sic] in the area of the Wm. Penn Project. The informant stated that he/she has observed him (Kevin Davis) on several occasions in the past selling cociane [sic] and has observed him entering the residence of 408 Pancoast PI. after he had made some sales or was going in for the night.
Within the past 48 hrs. the informant stated that he/ she was present in the area of the Wm. Penn Project and did observe the subject Kevin Davis make approx. 3 sales to individuals, who either approached the subject (Davis) or he approached them. The informant advised the affiant that he/she observed the exchange between (Davis) and the customer. The informant also within the past 48 hrs. also observed the subject going to and coming from 408 Pancoast PI. The informant also stated that the subject was suppose to have gotten a couple of ounces of cociane [sic] in just recently.
Sgt. Finnegan did check with Off. Sendek to see if he had ever heard of Kevin Davis aka (Kevie Kaz) and he advised the affiant that he was aware of the subject and knew him by the name of (Kevie-Kaz)[.] [T]he officer stated that informants advised him of the subject and that he was suppose to be dealing in cocaine.
A check was made with the Chester Housing Auth. listings and the residence of 408 Pancoast PI. Chester Pa. is listed in the anme [sic] of John Davis.
Based on the information listed above, which the affiant believes to be true and correct, the affiant request [sic] the issuance of this search warrant.

The search warrant and affidavit were signed and sealed by the affiant and district justice on the date application for each was made. Once obtained, the search warrant was executed on June 9, 1990, at 7:54 a.m. by eight City of Chester police officers.

In particular, Officers Kaisner and Maclntire approached the front door of the residence. Officer Maclntire knocked several times on the door. When he received no response, and with the passage of a few seconds, Officer Kaisner peered through the window situated to the right of the door. It faced the living room and people were observed therein. However, no one answered the knock. Ten to fifteen seconds later, Officer Maclntire knocked again and “tried the doorknob ... and the [front] door came open____” “As the door came open, [Officer Maclntire] announced [him]self as a police officer, and then entered____” In other words, he “was stepping into the open door as [he] was doing that” He stated he had a search warrant for the residence and one Kevin Davis.

Officer Maclntire proceeded to the second floor and found the defendant sleeping. The defendant was awakened and informed of the police’s presence to conduct a warranted search of the premises. Once this was completed, the police had confiscated money ($2,709), drugs (marijuana), drug paraphernalia, and a photo-I.D. of James Davis and other various sundry items of which a receipt/inventory sheet was prepared, signed by Officer Finnegan and witnessed by Officers Sendek and Kaisner. A copy of the inventory was provided to the defendant. Thereafter, a complaint was issued charging the defendant with violations of the Controlled Substance, Drug, Device and Cosmetic Act. The defendant was arraigned, bail was posted and a preliminary hearing followed in which the defendant was held for court on three counts of violating the Drug Act. An information was filed by the attorney for the Commonwealth charging the defendant with possession of a controlled substance, possession with intent to deliver the same and possession of drug paraphernalia.

In the defendant’s pre-trial motion to suppress, he challenged the warrant as lacking sufficient probable cause to “conclude in whole or in part that criminal activity was taking place inside the premises 408 Pancoast Place____” and the “manner in which the Search Warrant was executed, and the resulting searches conducted were illegal and in violation of the defendant’s First, Fourth, Fifth and Sixteenth Amendment Rights.”

A suppression hearing took place, testimony was presented by the Commonwealth and argument was heard from both sides resulting in the grant of the defendant’s suppression motion. In an opinion that followed, the suppression court held that “the affidavit did not contain sufficient facts to believe that drugs would be found in defendant’s residence”, nor was the police’s execution of the warrant lawful: (a) delay of ten seconds was not a reasonable time for police officers to wait before effecting a forcible entry into private premises for conducting a search, Commonwealth v. Mazzella, 231 Pa.Super. 247, 331 A.2d 784 (1974); and (b) failure of police to give notice of their identity and purpose before attempting to enter private premises violated defendant’s Fourth Amendment right to privacy, Commonwealth v. Clemson, 234 Pa.Super. 191, 338 A.2d 649 (1975).

A timely appeal was perfected by the Commonwealth challenging the court’s suppression ruling on grounds that the search warrant obtained by the City of Chester police, as well as its execution, fully comported with the mandates of federal and state law. Specifically, at first, the Commonwealth argues that the affidavit portion of the search warrant established probable cause that the evidence sought would be found in the defendant’s residence.

As stated most recently by a panel of this Court:

... this jurisdiction’s test of probable cause [i]s one [of] summoning the magistrate to approach the warrant application in a common sense, non-technical, ungrudging and positive manner. To this end, our Supreme Court has more recently adopted the “totality of circumstances” approach for assessing probable cause. See Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). As a result, the Pennsylvania constitutional standard essentially reflects the federal standard announced in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Important, however, is to recognize that Gates and Gray did no more than loosen the analytical straightjacket evolving through an overly mechanistic application of the two-prong Aguilar-Spinelli test. The dual “basis of knowledge” and “veracity” prongs of Aguilar-Spinelli are still very much a part of probable cause analysis. What has changed is the manner through which the magistrate evaluates the affidavit of probable cause in reference to the old two-prong test:

The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, that there is a fair probability that contraband of evidence of a crime will be found in a particular place.
Gray, 509 Pa. at 484, 503 A.2d at 925 (emphasis added) (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332).

Commonwealth v. Flaherty, 400 Pa.Super. 397, 583 A.2d 1175, 1177 (1990) (Citations omitted in part). Added to the preceding standard is the “duty of a reviewing court ... to ensure that the magistrate had a ‘substantial basis for ... concluding] that probable cause existed.’ ” Commonwealth v. Melilli, 521 Pa. 405, 418-19, 555 A.2d 1254, 1261 (1989). Accord Commonwealth v. Karns, 389 Pa.Super. 58, 566 A.2d 615, 616 (1989).

When we examine the information contained in the four corners of the affidavit, see Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), we see that we have a close case, very similar to several others we have had to decide.

For example, in Commonwealth v. Kline, 234 Pa.Super. 12, 335 A.2d 361 (1975), the affidavit contained information that: two females had asked the defendant, whom they knew to be selling drugs, for some LSD; they told the affiant that the defendant went to his apartment and returned a few minutes later with LSD; an informant also told the affiant that the defendant was selling drugs which he had purchased some one week before the date of the warrant; and the informant confirmed the defendant’s living quarters.

The lower court suppressed the evidence seized. Although there was sufficient information to establish that the defendant was dealing in drugs and living in the premises described, the affidavit was ruled by the lower court to have lacked sufficient evidence to establish the basis on which the several informants had concluded that the defendant had gone to his apartment to get drugs.

On appeal, this Court affirmed the suppression of the evidence on the grounds that there was:

... no indication of where the transaction took place, how long it took, how long [the defendant] was gone, or what led the girls to conclude that he had gone to his apartment.
* # # # # #
Probable cause to believe that a man has committed a crime on the street does not necessarily give rise to probable cause to search his home. [The suppression court judge] stated the matter well in his memorandum opinion: “In our opinion an allegation based on an assumption or supposition not supported by the facts is insufficient to support [an inference of] criminal activity in a premises, in spite of the fact that there are plenty of allegations to relate criminal activity of the individual who is alleged to have lived in the premises.”

234 Pa.Super. at 17-18, 335 A.2d at 364.

In Commonwealth v. Frye, 242 Pa.Super. 144, 149, 363 A.2d 1201, 1204 (1976), however, we found probable cause to exist because: “the nexus between the evidence seized and the place to be searched was provided by Frye’s admission that he was conducting at least a part of his unlawful operations from his home.” Similarly, in Commonwealth v. Forster, 253 Pa.Super. 433, 385 A.2d 416 (1978), the informant overheard the seller say to the buyer that he still had some drugs left; when the informant asked the buyer the identity of the seller, the buyer said the seller “was at room 720.” The seller was a college student, and room 720 was a dormitory. In these circumstances, a majority of this Court interpreted the informant’s statement to mean not only where the seller could be found but where a sale could be immediately consummated. On this interpretation, probable cause to search room 720 was shown.

The Court in Commonwealth v. Yucknevage, 257 Pa.Super. 19, 390 A.2d 225 (1978), sitting en banc, concluded that the defendant’s statement to an undercover agent that he was 5 pounds short of the 13 pounds of hashish desired to be purchased would be remedied in that the defendant “would be getting more hashish from the city that night[, and i]t was thereafter] agreed that they would meet again at 8:00 p.m. that night, when [the undercover agent] would buy the hashish.” Id., 257 Pa.Superior Ct. at 23-24, 390 A.2d at 227. The initial meeting occurred at 4:30 p.m. of the same day.

In concluding that the warrant was sufficient on its face to justify the search of the defendant’s home, the Yucknevage Court wrote:

... [the defendant’s] statement ... that he was 5 pounds short of the 13 pounds of hashish [the undercover agent] wanted, supported] the inference that the hashish on [the defendant’s] person had come from a supply in the house[, out of which the undercover agent had observed the defendant exit to arrive at the 4:30 p.m. meeting previously arranged for the purchase of a large quantity of hashish] ... [T]he fact that the place of the 8:00 p.m. meeting was not discussed is not dispositive. If two persons meet outside a certain house at 4:30 p.m., and agree to meet again at 8:00, the very fact that they do not say where they will meet again may suggest that it will be at the same place.
At the 4:30 meeting [the defendant] said he was getting more hashish from the city that night. Given the inference—-just discussed—that when he said this, he already had some hashish in the house, the likelihood was that when he got more hashish from the city he would add it to the supply in the house, and then take from this enlarged supply the 13 pounds to sell [the undercover agent] at the 8:00 p.m. meeting, outside, if not inside, the house.

Id., 257 Pa.Superior Ct. at 25-26, 390 A.2d at 228 (Footnote omitted). Lastly, we have this Court’s decision in Commonwealth v. Way, 342 Pa.Super. 341, 492 A.2d 1151 (1985), which vacated the judgment of sentence and reversed the order denying the defendant’s motion to withdraw his guilty pleas for trial counsel’s failure to suppress physical evidence obtained in an allegedly illegal search.

The facts fairly summarized are that the informant arranged a drug transaction by phone. The alleged transaction occurred in a blue van along a country road. After the alleged transaction, police followed the blue van to a driveway of a property at the corner of Douglas Dr. and Glendale Rd. The informant identified appellant as the driver of the blue van. A police source told the affiant that appellant lived at the intersection of Douglas Dr. and Glendale Rd. The affidavit did not contain sufficient facts to believe that drugs would be found on the premises to be searched. Probablé cause to believe that a man has committed a crime does not necessarily give rise to probable cause to search his home.

Id., 342 Pa.Superior Ct. at 347, 492 A.2d at 1154.

Instantly, the presence of probable cause is not so clear as in Frye, for considering the statement in the application, Davis did not say either that he was making drug sales from his house, or that his “recently” received cocaine was stored in his home. However, the showing of probable cause is clearer than in Way and Kline, and at least as clear as in Yucknevage and Forster.

First, Davis was seen leaving and returning to the house, a fact supporting the inference that he lived there. Second, within 48 hours of the issuance of the warrant, the confidential informant witnessed Davis transact the sale of cocaine on three occasions. This fact was direct evidence that Davis was trafficking in cocaine. Third, reading the affidavit in a common sense fashion, devoid of hypertechnicality and not in an isolated fashion as to the allegations contained therein, the confidential informant had “observed ... Davis ... on several occasions in the past selling coc[ai]ne and ... entering the residence of 408 Pancoast Pl. after he had made some sales____” In fact, within the 48-hour period preceding the issuance of the search warrant, the confidential informant witnessed Davis make three drug sales in the William Penn Project, and, within the same time span, Davis was “observed ... going to and coming from 408 Pancoast PI.”

Fourth, and lastly, the confidential informant was told by Davis that he had “just recently” obtained “a couple of ounces of cocaine”. This also occurred within 48 hours prior to obtaining the warrant to search the defendant’s home.

Under the “totality of circumstances” test, and because of the illegality, value and recent delivery of cocaine, there was a “fair probability” that the cocaine had to be “secreted in a ‘safe’ location; a man of reasonable caution would [have] be[en] warranted] in believing that [cocaine] was being kept at [Davis’] residence.” Frye, supra, 242 Pa.Super. at 149, 363 A.2d at 1204 (Citations omitted).

While it is obvious that there were other places where the cocaine might have been secreted, it is also true that:

... the law does not require that the information in a warrant affidavit establish with absolute certainty that the object of the search will be found at the stated location, nor does it demand that the affidavit information preclude all possibility that the sought after article is not secreted in another location.

Forster, supra, 253 Pa.Super. at 437-38, 385 A.2d at 418; Frye, supra, 242 Pa.Super. at 148, 363 A.2d at 1204; cf. Commonwealth v. Gannon, 308 Pa.Super. 330, 454 A.2d 561 (1982).

Accordingly, we hold that the- affidavit was sufficient on its face to establish probable cause to believe that the objects sought to be searched would be found in Davis’ home. However, our task is not at an end because we next must decide whether the suppression court’s determination that the police violated Pa.R.Crim.P. 2007’s “knock and announce” rule is substantiated by the facts and law.

Rule 2007 provides:

(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcibly entry.
(b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry.
(c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

It was the obligation of the Commonwealth, at the suppression hearing, to prove, by a preponderance of the evidence, that the search or seizure of the evidence satisfied the mandates of Rule 2007. See Commonwealth v. Parsons, 391 Pa.Super. 273, 570 A.2d 1328, 1331-32 (1990), wherein this Court articulated the underlying objectives of Rule 2007; to-wit:

“The purpose[s] of the 'knock and announce’ rule,” ..., “[are] to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectation against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry.” It has also been stated that even where the police announce both their identity and purpose ... forcible entry remains impermissible if the occupants of the premises sought to be entered have not been provided with the opportunity to relinquish the premises voluntarily. The critical inquiry then, is whether sufficient time elapsed for the police to form a reasonable belief that the occupants of the premises did not intend to surrender the premises peaceably or voluntarily. [Citations omitted]

In compliance with the preceding, our examination of the record indicates that Officer John Kaisner, who accompanied his partner in obtaining entry into the premises, testified on the subject at hand as follows:

Myself and Officer Maclntire went to the front door of this residence. Officer Maclntire knocked at the door. A few seconds went by and [Officer Kaisner] peered in the window to the right of the door which faced into the living room. Nobody responded for [sic] the knock, but we could see people inside of the living room area walking around.
$ sjc * * * sH
I saw a heavyset black lady in the living room area. Officer Maclntire then again knocked and then tried the doorknob. When he tried the doorknob the door came open. We entered the living room area, announced ourselves as police officers, and [that we] had with us a Search Warrant for that residence and. one Kevin Davis. As for the time that elapsed between the first knocking and the entry into the premises, Officer Kaisner, on cross-examination, agreed with defendant’s counsel that “ten, fifteen seconds” passed by, “[t]hen Officer Maclntire knocked again and then he tried the doorknob ... and the door came open____” In particular, Officer Kaisner stated: “As the door came open, I announced myself as a police officer, and then entered—then I guess I was stepping into the open door as I was doing that____”

In examining a claim that Rule 2007 has been violated, the first step is to consider whether the law enforcement officers provided notice to the occupants of the premises to be searched. Parsons, supra.

Even though there was no technical compliance with Rule 2007’s notice requirement, this does not ipso facto necessitate a finding that the evidence seized must be suppressed. As was noted in Commonwealth v. Mason, 507 Pa. 396, 406-07, 490 A.2d 421, 426 (1985):

... exclusion/suppression of evidence is not an appropriate remedy for every violation of the Pennsylvania Rules of Criminal Procedure concerning searches and seizures. It is only where the violation also implicates fundamental, constitutional concerns, is conducted in bad faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy. [Emphasis in original]

In the case at bar, because of our conclusion that the police had a valid search warrant, the police would have been entitled to enter the premises forcibly and conduct a search with or without the permission of the occupants. See Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054, 1056 (1987). Moreover, the manner and method of entry by the police was made without injury to the persons or property, hence the purpose of Rule 2007 in preventing violence to persons and damage to property was fulfilled. Id.

Therefore, given the repeated knocking on the front door to the defendant’s premises, the proximity to the occupants (in the living room adjacent) to the entry during the repeated notification efforts (“knocking”) and the passage of more than 15 seconds, we find the police’s identification of themselves and their purpose would have been a futile gesture. See Morgan, supra; Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982) and contrast with Commonwealth v. Chambers, 385 Pa.Super. 605, 561 A.2d 1257 (1989).

Weighing the benefits of deterring police misconduct against the costs of excluding otherwise reliable evidence, we hold that the lower court erred in suppressing the evidence in this case.

Order reversed; jurisdiction relinquished.

HOFFMAN, J. files a dissenting statement.

HOFFMAN, Judge,

dissenting:

I must respectfully dissent. First, I cannot agree that the information contained in the affidavit supports a finding of probable cause to search appellant’s home. Specifically, I fail to see how the fact that appellant was seen selling cocaine on the street forms a substantial basis to support the magistrate’s conclusion that probable cause existed to believe that contraband would be found in appellant’s home. See Commonwealth v. Melilli, 521 Pa. 405, 418-19, 555 A.2d 1254, 1261 (1989) (citation omitted). This is not a case where the informant said that he or she had seen contraband in appellant’s home, or appellant had told the informant that he had drugs stored there. Cf Commonwealth v. Frye, 242 Pa.Super. 144, 363 A.2d 1201 (1976) (construing Aguilar-Spinelli two prong analysis of affidavit and holding that facts supported sufficient showing of probable cause to issue search warrant of suspect’s residence). Instead, the informant stated that he or she had seen appellant selling cocaine and had seen him “going to and coming from 408 Pancoast Pl[ace].” Furthermore, the informant saw appellant entering his residence “after he had made some sales or was going in for the night.” Thus, appellant was not seen entering and exiting his home as part of the drug transaction. The majority acknowledges that the facts here present a close case, but maintains that because appellant was seen selling cocaine and “going to and coming from” his home, probable cause existed to search the premises. However, although the affidavit establishes that appellant probably resided at 408 Pancoast Place, I would find that the lack of a substantial nexus between the street crime and the appellant’s residence renders the warrant invalid. See Commonwealth v. Way, 342 Pa.Super. 341, 492 A.2d 1151 (1985). Thus, I would agree with the trial court that the affidavit “failed to give rise to probable cause to believe that drugs would be found at [appellant’s home].” Suppression Court Opinion at 4.

Second, I also agree with the trial court that the evidence should have been suppressed for the alternative reason that the police officers’ manner of entry into appellant’s home violated his Fourth Amendment rights. See U.S. Const. amend. IV. The critical inquiry is whether sufficient time elapsed in which the police could form a reasonable belief that the occupants of the premises did not intend to voluntarily or peaceably surrender the premises. Commonwealth v. Parsons, 391 Pa.Super. 273, 279, 570 A.2d 1328, 1332 (1990) (citation omitted). Here, unlike Parsons, the officers did not testify that they articulated their identity, authority, and purpose to the occupants before they entered the dwelling. Thus, I would find that the officers failed to give adequate notice before opening the door to the premises. See id.; Pa.R.Crim.P. 2007. For these reasons, I would affirm the order of the trial court.

      . The Commonwealth avers in its appellate brief that the entry of the order appealed will substantially handicap or effectively terminate its prosecution of the defendant. This claim is sufficient to allow review of the order in question. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . There was no evidence that exigent circumstances existed when the police first arrived at the home. See Pa.R.Crim.P. 2007.

      . In Commonwealth v. Burstin, 259 Pa.Super. 584, 393 A.2d 979 (1978), this Court concluded that because the police heard voices within close proximity to the door where they had knocked, this provided the occupants with enough time to have answered the door during the 20 seconds which had elapsed. Id., 259 Pa.Superior Ct. at 586-88, 393 A.2d at 981. Likewise, at bar, the location of the occupants of the residence during the repeated knocking by the police and the lapse of more than 15 seconds was “reasonably long enough” to provide the occupants with an opportunity to surrender the premises voluntarily. Id. To hold otherwise would require the police to stand idly by and await until the occupant(s) of a residence decides to respond to knocking, even though the police can observe individuals inside of a home within hearing distance of their knocking.
      Although there were no exigent circumstances present at bar, we find that the police’s conduct, in light of the particular circumstances confronting them, was proper and not violative of Pa.R.Crim.P. 2007’s "knock and announce” provisions.
      The passage of time being a matter of weighing the circumstances of the particular case, we conclude that the conduct of the police was proper with regard to an occupied structure after repeated efforts to give notice of their presence and the non-acknowledgment of the occupants to their willingness to respond to their presence, while all the time the police had a valid search warrant for the premises. This scenario justified the police’s entry, which occurred peaceably and without injury to person or damage to property. We find the procedure followed to have been proper and not violative of the spirit of Rule 2007’s “knock and announce" procedure.


text:
    595 A.2d 1224
    Joyce KALENEVITCH and Barry Kalenevitch, her Husband v. Judith FINGER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed Aug. 5, 1991.
    Reargument Denied Sept. 20, 1991.

      Theresa L. Shade Wix, Harrisburg, for appellant.
    Joseph M. Melillo, Harrisburg, for appellees.

      Before JOHNSON, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a grant of new trial by the Court of Common Pleas of Dauphin County in favor of plaintiffs/appellees, Joyce and Barry Kalenevitch. The issues raised in this case call into question the appropriate parameters of the psychotherapist-patient privilege codified at 42 Pa.C.S.A. § 5944. We affirm.

This action arises from an automobile accident between the appellee, Joyce Kalenevitch and defendant/appellant, Judith Finger. At trial, the issue of damages was ardently contested. Mrs. Kalenevitch attempted to prove that she suffered from chronic neck and back injuries which limited her daily activities, including employment. Mrs. Finger called various witnesses to contradict the plaintiffs’ evidence regarding damages. To that end, they called Doris Fahs, a registered nurse employed by licensed psychologist, Dr. Arnold Sheinvold. Both Dr. Sheinvold and Ms. Fahs treated Mrs. Kalenevitch for stress management. Ms. Fahs testified to conversations she had with Mrs. Kalenevitch which indicated that a great part of Mrs. Kalenevitch’s stress resulted from family pressures. Her testimony indicated that Mrs. Kalenevitch suffered from stress related to her sons who lived with her. N.T. 1/29/90 at 16. Moreover, Ms. Fahs testified from her notes that Mrs. Kalenevitch told her that her neck pain had improved greatly, and that she experienced decreased anxiety and increased energy. N.T. 1/29/90 at 17. Mrs. Kalenevitch also told Ms. Fahs that she was “back to her old self.” N.T. 1/29/90 at 18.

Appellee initially requested an offer of proof as to Ms. Fahs’ competency to testify, in light of the psychotherapist-patient privilege. Counsel for appellee argued that Ms. Fahs’ testimony was privileged by the psychotherapist-patient privilege. 42 Pa.C.S.A. § 5944. Appellant argued that since Ms. Fahs was not a licensed psychologist the privilege did not apply. The trial judge ruled that Ms. Fahs’ testimony was not, in fact, privileged and allowed her to testify. He also granted appellees a continuing exception to her testimony. N.T. 1/29/90 at 7. The jury then returned a verdict in favor of appellees in the amount of $10,831.00. Appellees filed a motion for new trial. The trial judge then reversed its decision of allowing the testimony of Ms. Fahs. He found that her testimony was prohibited by the psychotherapist-patient privilege since she was an agent of a licensed psychologist. A new trial was granted on the limited issue of damages and defendants appealed.

Appellant raises the following issues for our consideration:

1. whether, by failing to make timely and specific objection during the examination of a witness, a party may preserve an evidentiary issue for appeal;
2. whether the legislative intent of the psychologist privilege statute, 42 Pa. C.S.A. § 5944, indicate [sic] that its scope be limited to licensed psychologists;
3. should the psychologist-patient privilege protect communications which occur when the psychologist is not acting as a psychologist;
4. should a plaintiff be permitted to invoke a privilege in order to recover more money damages than those to which she is entitled by law?

We will consider each of these issues seriatim.

Our standard of review from an order granting a new trial is generally whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Carter by Carter v. U.S. Steel Corp., 390 Pa.Super. 265, 272, 568 A.2d 646, 649 (1990) (en banc). Appellant first argues that appellees did not properly preserve the issue of whether section 5944 applies to the agent of a psychotherapist because they failed to specifically object to those portions of Ms. Fahs’ testimony they deemed inadmissible. Pa.R.Civ.P. Rule 227 provides:

(a) It shall not be necessary on the trial of any action or proceeding to take an exception to any ruling of the trial judge. An exception in favor of the party against whom the adverse ruling was made shall be deemed to have been taken with the same force and effect as if it had been requested, noted by the official stenographer, and thereafter written out, signed and sealed by the trial judge, (emphasis added)

When appellee’s counsel asked for an offer of proof regarding the application of the psychotherapist privilege, the trial judge granted appellees an exception to the entirety of Ms. Fahs’ testimony. N.T. 1/29/90 at 7. We therefore find that the exception the trial court granted preserved appellees’ objection to Ms. Fahs’ competency to testify.

Appellant next contends that the testimony of Ms. Fahs is beyond the scope of the psychotherapist-patient privilege since she was not a licensed psychologist when she treated Mrs. Kalenevitch, as required by the statute. We disagree. The question as to whether the psychotherapist privilege applies to an agent of the psychotherapist, who is not licensed herself, is a question of first impression in this Commonwealth. The Pennsylvania psychotherapist-patient privilege is codified as follows:

No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

42 Pa.C.S.A. § 5944 (footnote omitted).

Many of our sister states have enacted similar privileges between psychotherapist and patient. Ala.Code § 34-26-2 (1979); Ariz.Rev.Stat.Ann. § 32-2085 (1988); Ark.Stat.Ann § 17-96-105 (1955); Ga.Code Ann. § 43-39-16 (1986); Idaho Code § 54-2314 (1963); Ky.Rev.Stat.Ann. § 319.111 (Baldwin 1986); NJ.Rev.Stat. § 45:14B-28 (1981); N.Y.Civ. Prac.L. & R. 4507 (McKinney 1984); Tenn.Code Ann. § 63-11-213 (1953); Wash.Rev.Code Ann. § 18.83.110 (1989). These statutes apply to confidential communications between a client and psychologist, and, in some instances, between a patient and a psychiatrist, and are subject to the same conditions as the attorney and client privilege.

Various cases in this Commonwealth and other jurisdictions have expounded the rationale behind the psychotherapist-patient privilege. In Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987), a panel of this court held

Patient confidence is essential for effective treatment. Because the information revealed by the patient is extremely personal, the threat of disclosure to outsiders may cause the patient to hesitate or even refrain from seeking treatment. The privilege thus serves the public interest in promoting a society in which the general well-being of the citizenry is protected.
The privilege afforded by § 5944 was intended to inspire confidence in the client and encourage full disclosure to the psychologist. By preventing the latter from making public any information which would result in humiliation, embarrassment or disgrace to the client, the privilege is designed to promote effective treatment and to insulate the client’s private thoughts from public disclosure.

Id., 367 Pa.Superior Ct. at 496, 500, 533 A.2d at 128.

In Matter of Adoption of Embick, 351 Pa.Super. 491, 506 A.2d 455 (1986), another panel of this court also discussed the public policy supporting confidential communications to psychotherapists:

There can be no doubt that the purpose of the psychologist-client privilege is to encourage people to seek professional help for their mental or emotional problems, and that purpose is best accomplished when people in need of the psychotherapeutic treatment know that what they tell their therapist during treatment will not be disclosed to anyone.
It cannot be gainsaid that society desires to protect and provide succor for the relationship of psychologist and client, and that without the confidentiality which the privilege provides, many people would simply forego therapeutic treatment.

Id., 351 Pa.Superior Ct. at 499-500, 506 A.2d at 460.

In Ex Parte Rudder, 507 So.2d 411 (Ala.1987), a psychiatrist filed suit against a television station based on libel and invasion of privacy. The television station attempted to obtain records relating to drugs the psychiatrist prescribed for the patient. The patient asserted his psychiatrist-patient privilege to preclude such discovery. The Alabama Supreme Court vacated the order of the trial court requiring production, holding that the interest is promoting full and thorough discovery yielded to the psychiatrist-patient privilege because of an important societal interest in preserving the confidentiality of the psychiatrist-patient relationship. Id. at 416-17.

While it is clear, then, that there is a strong public policy in favor of maintaining the sanctity of the psychotherapist-patient relationship, and that the privilege applies to the psychotherapist himself, jurisdictions are split as to whether

the privilege also applies to the psychotherapist’s agents or employees. In Lipsey v. State, 170 Ga.App. 770, 318 S.E.2d 184 (1984), the Georgia Court of Appeals found that disclosures made to a person conducting an intake evaluation at a family clinic were not privileged in light of the fact that the the counselor was neither a psychiatrist or psychologist licensed in Georgia, and because the legislature had not extended the privilege to anyone but licensed psychologists and psychiatrists. Id. at 772, 318 S.E.2d at 187.

In contrast, however, the Kentucky Court of Appeals has extended the psychiatrist-patient privilege to include others who participate, under the supervision of the psychiatrist, in the diagnosis and treatment of a patient. Amburgey v. Central Kentucky Regional Mental Health Board, 663 S.W.2d 952, 953 (Ky.Ct.App.1983). The Kentucky court found that the psychotherapist privilege is absolute in the absence of legislated and recognized exceptions. Id. The court reasoned that confidentiality is essential if psychiatrists are to be in a position to successfully treat their patients. Id. A thorough understanding of the patient’s problems and feelings must be divulged if treatment is to be appropriate and effective. Id. We find the holding of the Kentucky Court of Appeals persuasive. However, in light of the statutory language involved, we take our discussion one further step to discuss the application of the attorney-client privilege to the psychotherapist privilege.

The Pennsylvania confidential communications to a psychotherapist statute provides, in part, that the confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between the attorney and client. 42 Pa.C.S.A. § 5944. Ergo, the same rules and interpretations regarding the attorney client privilege apply equally to the psychotherapist privilege. Accordingly, we hold that communications made to the agent of a licensed psychologist or psychiatrist are privileged by 42 Pa.C.S.A. § 5944.

In Commonwealth v. Hutchinson, 290 Pa.Super. 254, 434 A.2d 740 (1981), a panel of this court held that an inculpatory statement given by a criminal defendant’s brother to an investigator hired by the public defender was subject to the attorney-client privilege. Id., 290 Pa.Superior Ct. at 263, 434 A.2d at 744. While this court did not state a specific rule with which to apply the attorney-client privilege to the attorney’s agents, it is clear that the privilege extends to such agents.

The principle extending the attorney-client privilege to an attorney’s agents has been explained as follows:

Generally, communications made between a defendant and counsel in the known presence of a third party are not privileged. An exception exists for statements made by a client to the attorney’s employees or in their presence because clients have a reasonable expectation that such statements will be used solely for their benefit and remain confidential.

People v. Osorio, 75 N.Y.2d 80, 84, 549 N.E.2d 1183, 1185-86, 550 N.Y.S.2d 612, 614-15 (1989) (citations omitted). Moreover, other jurisdictions have held that the attorney-client privilege extends to agents of the attorney if that person assists the attorney in providing legal services. Miller v. Haulmark Transport Systems, 104 F.R.D. 442, 445 (E.D.Pa.1984); Smith County Education Association v. Anderson, 676 S.W.2d 328, 333 (Tenn.1984); compare with Parkman v. State, 294 Ark. 339, 342, 742 S.W.2d 927, 928-29 (1988) (taped conversation between defendant and private investigator who was not a representative of defendant’s lawyer was not privileged).

Instantly, Mrs. Kalenevitch sought treatment from Dr. Arnold Sheinvold, a licensed psychologist, for stress and pain management. Part of this treatment included therapy which was delegated to Nurse Doris Fahs, an employee of Dr. Sheinvold. Therefore, Ms. Fahs was an agent of Dr. Sheinvold assisting him in treating Mrs. Kalenevitch. In light of our determination that communications made to an agent of a licensed psychologist or psychiatrist are privileged under 42 Pa.C.S.A. § 5944, we conclude that Mrs. Kalenevitch’s statements to Ms. Fahs were privileged.

In her third and fourth arguments, appellant contends that the psychotherapist privilege does not protect communications which occur when the psychologist is not acting as a psychologist, and that plaintiff should not be entitled to invoke the privilege when she has placed her mental condition at issue in a civil action. We find, however, that appellant has not properly preserved these two arguments for our review, and they are therefore waived. The doctrine of waiver has become firmly entrenched in Pennsylvania law and it is clear that a new and different theory of relief may not be successfully advanced for the first time on appeal. Morgan v. Sbarbaro, 307 Pa.Super. 308, 311, 453 A.2d 598 (1982). Because appellant failed to raise these particular issues in her opposition to appellees’ motion for new trial, we cannot consider them for the first time on appellate review.

Order affirmed, jurisdiction relinquished.

      . Section 5944 was enacted on July 9, 1976 as P.L. 586, No. 142 § 2, effective June 27, 1978. The statute was amended just before trial, in this case, on December 22, 1989, and became effective on February 20, 1990, after trial ended. P.L. 722, No. 96, § 1. This amendment extended coverage to confidential communications to psychiatrists, in addition to psychologists. As this case involves a psychologist, the amendment has no bearing on this appeal.


author: JOHNSON, Judge:

text:
    595 A.2d 1229
    COMMONWEALTH of Pennsylvania v. John P. LASKARIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 28, 1991.
    Filed Aug. 5, 1991.

      Victor H. Pribanic, McKeesport, for appellant.
    Kenneth A. Zak, Asst. Dist. Atty., Erie, for Com., appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

John P. Laskaris appeals from the Order dismissing his Post Conviction Relief Act (PCRA) petition without a hearing. We affirm.

On March 9, 1981, a criminal complaint was filed against Laskaris charging him with Criminal Attempt, Robbery, Conspiracy and Theft by Receiving Stolen Property concerning events that occurred on October 1 or 2,1979. However, the police were unable to arrest Laskaris because Laskaris was incarcerated on unrelated charges in West Virginia at that time. On October 7, 1981, Laskaris was extradited to Erie County, Pennsylvania and charged with the additional offenses of Crimes Committed with Firearms and Theft by Unlawful Taking. The additional charges were filed against Laskaris at least two years and 5 days after the crimes had been committed. In the indictment charging Laskaris with Crimes Committed with Firearms and Theft by Unlawful Taking, the Commonwealth did not provide Laskaris with notice of its intent to toll the statute of limitations on the basis that Laskaris was continuously absent from the Commonwealth.

A jury trial was held on May 20, 1982. Following trial, the jurors were unable to reach a decision; thus, the trial resulted in a hung jury. A second jury trial was held on July 12, 1982 after which Laskaris was convicted of Attempted Robbery, Crimes Committed with Firearms, Theft by Receiving Stolen Property and Conspiracy. The charge of Theft by Unlawful Taking had been withdrawn. Post Trial Motions were filed and denied. Laskaris was sentenced to 5-10 years’ incarceration for Attempted Robbery. He was also sentenced to two consecutive terms of 2lh to 5 years’ incarceration for Crimes Committed with Firearms and Theft by Receiving Stolen Property. No additional sentence was imposed for Conspiracy.

A direct appeal followed in which we affirmed the judgment of sentence entered against Laskaris. Commonwealth v. Laskaris, 341 Pa.Super. 616, 491 A.2d 919 (1985) (Table). Petitions for reargument and allocatur were subsequently filed and denied. Laskaris filed a Post Conviction Hearing Act (PCHA) petition on December 9, 1987. An amended petition was filed on April 5, 1988 which was denied on May 17, 1988. We affirmed the order denying Laskaris’s PCHA petition in Commonwealth v. Laskaris, 388 Pa.Super. 663, 560 A.2d 239 (1989) (Table). Laskaris then filed a pro se PCRA petition styled “Petition for Correction of Sentence” on July 19, 1990 which was denied on January 25, 1991. This appeal follows.

When reviewing the grant or denial of a petition for post conviction relief we are limited to determining whether the lower court’s findings are supported by the record and its order is otherwise free of legal error. See Commonwealth v. Nelson, 393 Pa.Super. 611, 574 A.2d 1107 (1990). Preliminarily, our review of Laskaris’s claims is governed by the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9543, which provides the criteria for determining an individual’s eligibility for relief.

With the requirements of the PCRA in mind, we examine the issues that Laskaris has raised on appeal. Laskaris contends that the trial court erred in dismissing his second petition for post conviction relief on the basis that: 1) due process is violated where he was not notified that his petition would be dismissed without a hearing; 2) prosecution for the instant offense of Crimes Committed with Firearms was barred by the statute of limitations; 3) he had not waived his right to review the statute of limitations issue because counsel was ineffective for failing to raise it, and 4) remand is necessary because the trial court refused to address the statute of limitations issue where Laskaris had alleged counsel’s ineffectiveness.

All of Laskaris’s claims are based upon the premise that the Commonwealth did not notify him prior to trial that they intended to toll the statute of limitations with regard to the offense of Crimes Committed with Firearms. Thus, Laskaris argues that they cannot utilize the exception allowing prosecution after the statute has run where an individual has been absent from the Commonwealth. See 42 Pa.C.S. § 5554(1).

Laskaris has not alleged any claim that satisfies the criteria of the PCRA, 42 Pa.C.S. § 9543. He alleges a due process violation but he does not allege that that violation “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” See 42 Pa.C.S. § 9543(a)(2)(i). He alleges ineffectiveness of counsel, but again he does not allege facts to show that the ineffectiveness “so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.” See 42 Pa.C.S. § 9543(a)(2)(H). Further, even if he did meet the eligibility criteria outlined in § 9543(a)(2), and it was determined that the statute of limitations issue had not been previously litigated pursuant to § 9543(a)(3), we would conclude that the issue had been waived.

In proceedings under the PCRA, waiver is governed by § 9544(b), which provides as follows:

(b) Issues waived.—For the purposes of this subchapter, an issue is waived if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or other proceeding actually conducted or in a prior proceeding or other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.

In this case Laskaris filed a direct appeal of his sentence to this court. We affirmed the judgment of sentence. Laskaris’s petitions for reargument and allocatur were subsequently filed and denied. He then filed a petition for post conviction relief which was denied. We affirmed the denial of his first PCHA petition. Thus, Laskaris has had ample opportunity to have his case fully reviewed and addressed. All other claims are waived.

Additionally, our Supreme Court in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), held that a second or any subsequent petition for post-conviction relief will not be entertained “unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Id., 519 Pa. at 513, 549 A.2d at 112; see also Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989) (applying Lawson standard of review to second or subsequent petitions filed under the PCRA). This standard is met if the petitioner can demonstrate either: (a) that the proceedings resulting in his conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate or (b) that he is innocent of the criminal charges. See Lawson, supra.

We are satisfied that, under our rules, we have provided ample safeguards to assure that persons convicted of a crime are provided ample opportunity to assert a legitimate complaint. Id. Laskaris has taken full advantage of these safeguards; he has not convinced us that he is eligible for PCRA relief.

Moreover, Laskaris has not demonstrated that the proceedings resulting in his conviction were so unfair that a miscarriage of justice occurred. He alleges in his brief that he was innocent of the crimes charged. However, he has not set forth facts in his petition which, if proven upon proper hearing, would demonstrate his innocence. Hence, our review of the record reveals that the trial court correctly refused to entertain Laskaris’s second petition for post conviction relief.

Were we to review the claims Laskaris raises here we would conclude that the claims were meritless. Laskaris contends that he was prosecuted in violation of 42 Pa.C.S § 5552(a) concerning the limitation of prosecution for criminal offenses. We disagree.

In the present case, the record reveals that Laskaris was improperly charged with Crimes Committed with Firearms at least two years and five days after the crimes were committed. See 42 Pa.C.S. § 5552(a). Prior to trial the Commonwealth did not allege in the indictment that it intended to toll the statute on the basis that Laskaris was continuously absent from the Commonwealth. See 42 Pa. C.S. § 5554(1).

In general, a prosecution for an offense must be commenced within two years after it is committed. 42 Pa.C.S. § 5552(a). Tolling of the statute is governed by 42 Pa.C.S. § 5554 as follows:

[t]he period of limitation does not run during any time when:

(1) the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth.

The cases suggest that the Commonwealth may not prosecute an individual after the time prescribed by law, based upon the fact that the accused is absent from the Commonwealth, without first notifying the accused of its intention to prosecute him pursuant to § 5554. As we held in Commonwealth v. Bender, 251 Pa.Super. 454, 459, 380 A.2d 868, 870 (1977):

Where the Commonwealth seeks to toll the statute of limitations by establishing one of the enumerated exceptions, it must allege the exception in the indictment. The purpose of this rule is ‘to apprise the defendant that he must defend not only against the crime itself but also against the limitation of prosecution.’

Although the cases suggest that notice should be provided to the accused, notice may be waived where there is no prejudice to the defendant. See Commonwealth v. Stockard, 489 Pa. 209, 217-218, 413 A.2d 1088, 1092 (1980). We are unable to conclude that Laskaris has been prejudiced by the Commonwealth’s failure to provide him with notice.

After reviewing the record we conclude that the trial court’s decision to deny Laskaris’s petition for post conviction relief is supported by the record. Accordingly, we affirm the order dismissing Laskaris’s petition without a hearing.

Order affirmed.

HOFFMAN, J., concurs in the result.