author:
POPOVICH, Judge:
      HESTER, Judge,

text:
    581 A.2d 177
    Thomas TROSKY and Children’s Home of Reading, For and on Behalf of Todd R. Mann, Appellee, v. James I. MANN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 12, 1990.
    Filed Sept. 26, 1990.

      Malcolm J. Gross, Allentown, for appellant.
    Michele A. Varricchio, Allentown, for appellee.
    Before BECK, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Lehigh County directing that support payments in the amount of $650.00 per month, retroactive to a date specified, be paid to the Children’s Home of Reading by the appellant/defendant, James I. Mann, for that period of time his adopted child was in its care and custody. We affirm.

The facts, as garnered from the October 5, 1989, support hearing, disclose that James and Faye Mann are the adoptive parents of Todd, a 16-year-old youth whose emancipation status is the object of inquiry for support purposes.

James I. Mann testified that since the 1st of December, 1978 (which was just prior to Todd’s fifth birthday) the youngster had caused nothing but problems for the Manns. For example, at the end of September, 1987, Todd removed the family vehicle from the garage, without authorization and while the Manns had taken one of their other sons to college, and caused $6,000.00 in damages. Todd also had been fraudulently securing refunds from various companies under the guise of complaining about their products. The companies, in turn, sent money to placate him.

Further, the Manns discovered that Todd was removing himself from the home during the middle of the night, was shoplifting, consuming alcohol and using drugs. In fact, a little over a year before the support hearing, Ms. Mann discovered drug paraphernalia in Todd’s school-bag. When Ms. Mann advised Todd that the matter would be attended to when Mr. Mann returned home from work, the youth left home and made his way to the Valley Youth House in New Jersey.

The day after Todd removed himself from the Mann residence, a social worker from Valley Youth House notified Mr. Mann of his son’s whereabouts, how he did not belong there, and that the family should work things out and take him home. Mr. Mann refused to do so until Todd had been given a drug and alcohol evaluation. Within a week, the test results proved positive for the presence of drugs. This caused Mr. Mann to send Todd to the Mountainview Home Rehabilitation Center. The youngster’s stay at Mountainview Home lasted from October to mid-November of 1988, and this treatment was paid for by Mr. Mann’s insurance company.

Once it was time to release Todd, the options available to the family consisted of having him stay with in-laws or a Korean man, all of whom had expressed interest in caring for the child. During this period, however, the cost of raising the child would be borne by Mr. Mann. At no time did Todd express any interest in returning to the Mann residence.

Although it appeared that the Korean man was going to raise the youth, the Manns informed him that they were going to see their other son in college, and, upon returning from their visit, they would inform this individual of their decision. However, upon their arrival home, the Manns were informed by the Korean man “very matter of factly ... that he was putting Todd ... in the Children’s Home of Reading.” The Manns had never agreed to this move, nor had they signed any documents toward that end.

At any rate, it was an extended period of time before Mr. Mann wrote to Todd at Children’s Home, i.e., December 30, 1988. The letter contained a list of his personal belongings and a request for Todd’s signature to language reading: “accept the terms and declare myself to be emancipated.” This was done at the direction of Mann’s attorney. Todd never acknowledged receiving the letter until the Manns drove to the Children’s Home to deliver his possessions in late January of 1989.

Because Todd would not sign the letter, the Manns returned home without giving the child any of his personal belongings. Instead, the Manns wrote another letter informing Todd that if he wanted his possessions he would have to come home to retrieve them. Todd did so about a month later, but he was “adamant and hostile about it ... [and i]t was not a pleasant scene.” No mention was made by Todd of his returning home; he merely took his belongings and left.

Since Todd has been away from home, he has written a single letter to the Manns advising them “he wanted absolutely nothing from [them]. That he was in no way interested in returning home.” He also has spoken to them on the phone approximately five or six times, the most recent being mid-August of 1989. Moreover, until counsel for the plaintiff (Children’s Home of Reading) had stated in court that Todd was “living in some sort of arrangement” in a private placement after leaving the Valley Youth House, the parents did not know where he was staying.

The first time that the defendants learned that the plaintiff was seeking money for Todd’s stay at “Our House”, which is a youth drug and alcohol program with the Children’s Home, was with the receipt of the complaint which initiated the suit. As a result of the filing of the complaint, the previously discussed October 5, 1989, hearing was held and resulted in the entry of a court order directing the defendant/father to pay $650.00 per month for the support of his minor-child, retroactive to March 28, 1989, for and during the period the child remained in the Children’s Home of Reading.

Posed for our consideration is the question of whether Todd, albeit under the age of eighteen, was “emancipated” during the time he was in the care and custody of the Children’s Home so as to dispose of the defendant’s “well-nigh” absolute obligation to support (and, in essence, pay for expenses incurred by a third-party caring for) the child.

Pursuant to 23 Pa.C.S. § 4323(a), a court shall not order either or both parents to pay for the support of a child who is “emancipated”. The term “emancipated” is not defined in the definitions section of the support statute, 23 Pa.C.S. § 4302, or in the definitions section of the general provisions of the Pennsylvania Consolidated Statutes, 1 Pa.C.S. § 1991. Moreover, although parents are liable for the support of their children who are unemancipated and eighteen years of age or younger, 23 Pa.C.S. § 4321(2), a child need not be supported by his parents, even though he is under eighteen years of age, if he is emancipated. Cf. Griffin v. Griffin, 384 Pa.Super. 188, 200, 558 A.2d 75, 81 (1989) (en banc) (“While parents may be liable for the support of children who are eighteen or older, parents are liable for the support of children who are unemancipated and eighteen or younger. 23 Pa.C.S. § 4321.” (Emphasis in original)).

There is a dearth of appellate decisions in this Commonwealth with regard to whether parents are obligated to pay for expenses incurred by a third-party in the performance of services for a minor-child. Nonetheless, we are persuaded that the approach to take is a case-by-case determination on the issue of parental liability for their children’s upbringing, i.e., support. In this area of the law, our scope of review in support cases is limited. “[Tjhe amount of a support order is largely within the discretion of the trial court, and its judgment should not be disturbed on appeal absent a clear abuse of that discretion.” Costello v. LeNoir, 462 Pa. 36, 40-41, 337 A.2d 866, 868 (1975). As observed by our Supreme Court in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), parents are obligated to provide only for the “reasonable” expenses of raising their children. What constitutes a “reasonable” expense in raising children is based upon the particular circumstances— the needs, the customs, and the financial status—of the parties. Id. The Melzer Court pointed out, quoting with approval from the Supreme Court of Oregon in Smith v. Smith, 290 Or. 675, 626 P.2d 342, 344 (1981), that “child support itself may take forms other than direct monetary contribution____ It may take the form of payments for medical care.” Id., 505 Pa. at 473, 480 A.2d at 996. This obligation remains inviolate, regardless of “the amount of time a parent spends with his or her children [since this] has no bearing on that parent’s obligation of support. Even a parent who never sees his or her children has a duty to support those children to the best of his or her obligation.” Id., 505 Pa. at 462 n. 6, 480 A.2d at 996 n. 6. Accord Milne v. Milne, 383 Pa.Super. 177, 205-06, 556 A.2d 854, 869 (1989) (en banc); DeWalt v. DeWalt, 365 Pa.Super. 280, 285-86, 529 A.2d 508, 511 (1987).

Moreover, in this Commonwealth, a parent has a stringent obligation to support a child aged eighteen or less. Sutliff v. Sutliff, 339 Pa.Super. 523, 547, 489 A.2d 764, 776 (1985). This is so even if he or she renounces the parent and refuses to see him or her. See DeWalt, supra, 365 Pa.Super. at 285-86, 529 A.2d at 511, citing Schmidt v. Schmidt, 313 Pa.Super. 83, 87, 459 A.2d 421, 423 (1983); 59 Am.Jur.2d, Parent and Child § 67 (1971). Especially is such an obligation to support extant where the child is mentally or physically deficient. See DeWalt, supra.

No one can deny the fact that Todd was physically dependent on drugs so as to warrant his admission into several drug rehabilitation programs. Moreover, no one can deny that the ingestion of drugs had a deleterious effect upon the child’s mental well-being as evidenced by the impairment of his ability to function normally or maintain a stable relationship with his parents and siblings.

Even the testimony of Mr. Mann recounted a scenario in which Todd’s social behavior was one bent on reprehensible conduct unacceptable as the norm in our society—stealing, consuming alcohol and drugs, and removing himself from the family residence late at night without advising his parents.

Todd’s conduct toward his parents, i.e., advising them in writing that he wished to sever all filial ties and having no desire to return home, is symptomatic of behavior gone awry and nurtured, possibly, by the minor’s disenchantment with the restraints on his freedoms by his parents and seeking release in non-combative behavior—drugs and pilfering. Nonetheless, despite the exhibition of such abnormal conduct, we have held that:

A minor child is incapable of effective renunciation because of his age. A disabled child is incapable of effective renunciation because of the societal interest in preventing dependance [sic] upon the public weal.

DeWalt, supra, 365 Pa.Super. at 288, 529 A.2d at 512. Likewise, this Court in Milne, supra, in the course of adopting “estrangement” as an additional criterion in not awarding educational support to an adult child (over eighteen years of age) stated:

... we certainly will not consider pre-majority attitudes and behavior, as we all recognize that the maturity and restraint which can be expected of adults is not appropriately applied to evaluate children.

383 Pa.Super. at 190, 556 A.2d at 861. Factoring into the equation of support the element of “emancipation”, which is a question of fact to be determined by the circumstances presented in each case, see Maurer v. Maurer, 382 Pa.Super. 468, 473-77, 555 A.2d 1294, 1297-98 (1989), as a legal term is useful, but only as a means of describing a result already reached, not as an analytical tool. Id. Stated otherwise, since the issue of the right to support arises in many ways, there are situations in which a child who would be considered “emancipated” for other purposes would not be entitled to support and others in which he would be so entitled. See Maurer, supra.

With the preceding as a backdrop, it becomes clear that “emancipation” may not be thrust into the forefront without an examination of the circumstances which might have prompted such a finding, a conclusion which we assume for the sake of argument. Instantly, we had no testimony that Todd was in any position to support himself financially. In fact, the complaint filed in this case alleged, at paragraph 5, that the minor-child was “unable to earn income sufficient to provide for his ... support.” Further, when Todd informed his father that he was being released from “Our House”, which is an extension of the Children’s Home, he was told that the father would be vacationing at the time and would not be home to receive him. Even when a counselor asked Mr. Mann if Todd could return home, he was informed by the father that:

... It was a mute [sic] point for Todd to—for us to say that he could return home when in fact he has never wanted to return home, and still does not want to return home. And under, without any duress whatsoever, with a letter that he wrote quite freely, indicating in writing that he did not want to return. And I was not going to chase him all over the country side.

Also, Mr. Mann made it crystal clear in his phone conversations with Todd that the child had “burnt the bridges” with the defendant-father and the mother, as well as the other three children in the family. Notwithstanding this admission of disassociation, the defendant conceded that he took Todd as a deduction on his 1988 income tax return since he resided with Mr. Mann for nine months of that year.

We find the actions of the minor-child are not consistent with the presence of “emancipation”—he could not support himself, he sought refuge with a private placement service while recovering from his dysfunction (drug addiction), one of the factors which prompted him to leave his home unilaterally. See generally Maurer, supra.

It becomes clear that emancipation may not arise by the abandonment of the child by his father, which appears to have occurred at bar, or by the mere ability of the child to write a disconcerting letter of disassociation with his adopted parents and engaging in caustic conduct upon receipt of his personal belongings at the defendant’s residence. To this add the fact that his parents requested, as a condition precedent to the release of his belongings, a signature on a letter admitting to the child’s “emancipation.” In toto, the environment was not one conducive to reconciliation and amelioration of the chasm of distrust and animosity that had developed between the child and the parents.

As referred to earlier in this opinion, at common law the duty to support a child and provide for him or her with necessities of life carried with it the right of association and was reciprocal in that the parents had a right to the child’s services. See Milne, supra. Today, such a duty is absolute with regard to the minor-child and does not depend on access of the parent to the child. Id.

In our society, it is a sad commentary to admit that addiction to drugs has reached epidemic proportions requiring the government to launch an all out “war” to inhibit its spread, along with its eradication. In this context, knowing the damaging effect drugs has on the individual, his family, friends and the community at large, we cannot ignore its elimination and treatment of those afflicted as a “necessity” of life to be paid, in our situation, by the parent of the child treated. See Melzer, supra; DeWalt, supra. Because there is no denying the parent’s ability to pay for the services rendered to Todd, the need for which is not disputed by any of the litigants, the Children’s Home is entitled to receive reimbursement for services rendered to the minor-child. Cf. Madison General Hosp. v. Haack, 124 Wis.2d 398, 369 N.W.2d 663, 667 (1985).

Order affirmed.

HESTER, J., files a concurring and dissenting statement.

HESTER, Judge,

concurring and dissenting.

I concur with that portion of the majority’s exceptionally well-reasoned opinion which addresses the issue as to whether Todd Mann is emancipated. I agree that under the undisputed facts in this appeal, he cannot be considered as emancipated.

I am constrained to dissent from only that portion of the majority’s opinion which affirms the support order of $650 per month for Todd. There is nothing in the record that indicates that $650 per month constitutes a reasonable expense in raising Todd. Appellants have three other children. The Hearing Court should have considered, on the record, the needs, the customs and the financial status of all the parties involved, not only Todd.

This is an unusual situation. Todd removed himself from his parents’ residence. He was never committed to the Children’s Home of Reading. A public agency is not seeking support for Todd. The Children’s Home has requested and received an order for $78 per day.

I would remand to the trial court to conduct an evidentiary hearing to ascertain the needs, the customs and the financial status of all the involved parties and then determine the amount appellants should pay for Todd’s support.

      . Todd was himself of Korean descent.

      . According to plaintiffs counsel at the commencement of the support hearing, Todd was released by the Children’s Home on August 19, 1989. He matriculated from there to the Manns’ home, but because he was not admitted be was taken to the Valley Youth House and then to a private placement. •
      It appears that Todd spent time in treatment at Mountainview, and his counselor advised the defendants that he (Todd) should go to "Our House" at the Children's Home because the counselor "had very good follow-up services with the Children’s Home in Reading, and with the people th[at] he had sent there.” On Todd’s release from "Our House”, Mr. Mann was contacted by Abe from Valley Youth House.
      As an aside, we would point out that presently Todd is still covered under Mr. Mann’s medical insurance.

      . The support action ("complaint”) was filed initially in the Berks County Court of Common Pleas by Thomas Trosky, who was the Director of the private organization located in Berks County. He has since left the employ of the Children’s Home.
      In the complaint, Trosky sought to collect the monies claimed due ($9,142.00) from the defendant (James I. Mann) under provisions of the Pennsylvania Uniform Reciprocal Enforcement of Support Act (23 Pa.C.S. § 4501 et seq.) given that he resided in Lehigh County.
      Trosky alleged in the complaint that the child-Todd was unable to earn income sufficient to provide for his support, and, as a result, incurred expenses at the Children’s Home of $78.00 per day beginning on November 17, 1988.
      The Berks County Court signed an order directing that the complaint be transmitted to Lehigh County for proceedings against the defendant.

      . An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused. In re Women’s Homeopathic Hospital of Philadelphia, 393 Pa. 313, 316, 142 A.2d 292, 294 (1958) (Citation omitted).

      . In Pennsylvania, emancipation results not from any conduct of the child but from some juristic act, or other conduct of the parent from which the extinguishment of parental rights and filial duties may be inferred. See Detwiler v. Detwiler, 162 Pa.Super. 383, 385-87, 57 A.2d 426, 428 (1948). However, this is not to imply that the parent may take the initiative in establishing the child’s “emancipation" resulting in a termination of the parent's obligation to support. Rather, whether the child is under the “care and custody” of the parent was looked to under the common law to determine if a minor were “emancipated.” Id.; Com., Dept. of Public Welfare, 60 Pa.Cmwlth. 403, 406-07, 431 A.2d 1135, 1138 (1981). Today, we look to a host of factors in deciding the status of a child as "emancipated". See Maurer, supra.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    581 A.2d 183
    COMMONWEALTH of Pennsylvania v. Reginald BLASSINGALE, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 2, 1990.
    Filed Oct. 2, 1990.

      Joan D. Brown, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

In this case, appellant appeals the judgment of sentence rendered by the Court of Common Pleas of Philadelphia following his convictions of robbery and violation of the Uniform Firearms Act. We affirm.

The charges against appellant arose out of an incident which occurred on March 20, 1988 at approximately 6:15 a.m. On that date, the victim was standing on a street corner waiting to catch a bus when a man later identified as appellant approached, asked the victim how long he had been waiting for the bus, and then stood on the corner with the victim for ten to fifteen minutes. The man then came close to the victim, asked him where his money was, reached for his pocket and took the victim’s money, and a struggle ensued. During the struggle, the man identified as appellant hit the victim on the side of a head with a pistol. After that, the assailant ran from the scene of the crime. Appellant was charged with two counts of robbery. On the first count, appellant was charged with feloniously threatening another with, or intentionally putting him in fear of immediate serious bodily injury in the course of committing a theft. Under the second robbery charge, appellant was charged with feloniously threatening or intentionally putting the victim in fear of immediate bodily injury. Under a separate information, appellant was charged with unlawfully carrying a firearm on a public street or on public property.

After a jury trial, the jury returned verdicts of guilty on the firearms charge and on the robbery, serious bodily injury charge. On the charge of robbery, bodily injury, the jury returned a verdict of not guilty. Appellant filed post-verdict motions which were denied. He was sentenced to a term of imprisonment of not less than one (1) nor more than two (2) years on the firearms conviction and a consecutive term of five (5) to eighteen (18) years on the robbery conviction. Following the judgment of sentence, appellant filed a motion for reconsideration of sentence and the instant timely appeal. The lower court denied appellant’s motion for reconsideration of sentence.

On appeal, appellant generally argues that the evidence was insufficient to sustain the verdict(s) and that the verdicts) were against the weight of the evidence. He then proffers the following more specific arguments: (1) that there was sufficient evidence that he was not at the scene of the crime at the time it was committed, causing a reasonable doubt as to his guilt; (2) that there was no direct evidence linking the firearm found on the date of appellant’s arrest with the firearm used on the date of the robbery; and (3) that the testimony of the victim who identified appellant as the perpetrator of the crime was confused, contradictory, and inconsistent and insufficient to sustain a finding of guilt.

We must review a claim of insufficient evidence to sustain the verdict in the light most favorable to the Commonwealth, and drawing all proper inferences from the evidence in such light, determine whether the jury could reasonably have found that all the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989). It is the prerogative of the fact-finder to believe all, part, or none of the evidence presented. Commonwealth v. Lyons, 382 Pa.Super. 438, 555 A.2d 920 (1989). A determination as to the credibility of witnesses is within the sole province of the trier of fact. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984).

Appellant cites the testimony of his mother to support his argument that there was sufficient evidence presented to establish that he was not present at the scene of the crime at the time it was committed. Appellant’s mother testified that she saw appellant at approximately 11:00 p.m. the night before the robbery when he returned home to her house and proceeded to his upstairs bedroom. The mother further testified that she locked the door to the outside on her way to bed for the night, and that this lock required a key to open it even from the inside. The mother indicated that appellant did not' have a key to this lock, having lost his approximately a month before the robbery. She next saw appellant at about 2:00 p.m. the following day when he came into the kitchen of their home. Appellant’s mother testified that she would have heard appellant if he had left the home during the night because she is a light sleeper.

The other testimony offered at trial consisted of that of the victim, the police officer who arrested appellant, and the detective who took the police report from the victim. The victim testified as to the circumstances of the robbery, and to the fact that he had a lengthy period of time in which to observe appellant as well as a good frontal unobstructed view of him from fairly close range. The detective gave testimony concerning the description of the perpetrator given him by the victim, the posting of that description with the police units, the apprehension of appellant, the recovery of a weapon matching the description of the weapon given by the victim, and the identification of appellant by the victim upon examination of a photo array. The police officer testified as to the arrest of appellant.

We have reviewed all of this testimony and find, under our standards of review previously stated, that the evidence was more than sufficient to support the verdict. The fact that the mother gave testimony in the nature of an alibi simply went to the credibility of witnesses and the jury’s prerogative to accept certain testimony and reject other testimony because the evidence presented by the Commonwealth witnesses was more than adequate to establish appellant’s identity as the perpetrator of the crime.

Appellant’s next contention is that there was no direct evidence at trial which established that the firearm recovered from appellant at his arrest on March 23, 1988 was the firearm used in the robbery. Appellant cites no authority to support his argument, and we can discern no merit to it. The victim testified at trial that the weapon admitted into evidence, which was also identified at trial as the weapon recovered from appellant on the date of his arrest, looked like the gun that was used in the robbery perpetrated on March 20, 1988. Also offered at trial was the description of the weapon given by the victim to the police after the robbery. That description was consistent with the appearance of the weapon recovered from appellant and offered at trial. The fact that the evidence connecting the weapon at trial with the weapon used at the robbery was not more “direct” is irrelevant since it is firmly established that a conviction may be based on circumstantial evidence alone. Commonwealth v. Joyner, 489 Pa. 502, 414 A.2d 1003 (1980).

Appellant’s next argument on appeal is that the evidence of the crime was based solely on the uncorroborated testimony of the victim which was “inconsistent, confused, and contradictory.” Appellant cites several instances of alleged inconsistency in the victim’s testimony. We have reviewed appellant’s brief and the testimony of the victim and do not agree with his assessment. Many of the inconsistencies alleged by appellant consist of differences in testimony at the suppression hearing and at trial. Appellant was free at trial to set forth these alleged inconsistencies during cross-examination of the victim and appellant did so to an extent. The fact that the jury found the victim believable despite appellant’s cross-examination of him is within the province and duty of the fact-finder and will not support an allegation of insufficiency of evidence on appeal. Commonwealth v. Jackson, supra. Furthermore, our reading of the victim’s testimony at trial leads us to conclude that appellant’s characterization of his testimony is exaggerated and inaccurate. Additionally, the lower court explicitly stated that its credibility determination was that the victim’s testimony was not confused, contradictory, or inconsistent. The credibility of a witness is an issue for the finder of fact and will not be disturbed on appeal. Commonwealth v. Preston, 488 Pa. 311, 412 A.2d 524 (1980). Accordingly, we find no merit to this allegation of error.

Appellant’s next group of arguments on appeal relates to the lower court’s denial of his motion to suppress. In relation to this issue, appellant makes the following specific contentions: (1) the stop and search of appellant by police on March 23, 1988 was without probable cause; (2) the photo array presented to the victim was unduly suggestive and it was error to refuse appellant’s request for a lineup; and (3) the lower court erred in denying suppression of the firearm in the appellant’s possession at the time of his arrest.

Our role when considering the lower court’s denial of a motion to suppress is to determine whether the record supports the lower court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from them. Commonwealth v. Reddix, 355 Pa.Super. 514, 513 A.2d 1041 (1986). We may reverse the denial of the motion to suppress only if the lower court erred in the legal conclusions drawn from its factual findings. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111, cert. den. 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). Appellant contends that the lower court erred in its determination that there was probable cause for the stop and search which led to his arrest. He asserts that because the informant who told the police that “a man with a gun” had been seen around the corner from where the police were located was an anonymous, unknown informant, there was insufficient reliability for the informant’s tip and therefore the police had no basis for acting on that tip.

It is permissible for the police to make an investigatory stop if they have reasonable suspicion that criminal activity is afoot, even though they lack probable cause to make an arrest. Commonwealth v. Capers, 340 Pa.Super. 136, 489 A.2d 879 (1985), appeal denied (Sept. 6, 1985); Commonwealth v. O’Neal, 321 Pa.Super. 323, 468 A.2d 500 (1983).

A policeman who lacks the precise level of information necessary for probable cause is not required to simply shrug his shoulders and allow a crime to occur or a criminal to escape ... Even in the absence of probable cause, an individual may be stopped and briefly detained, providing the investigating officer can point to specific and articulable facts which, in conjunction with the natural inferences deriving therefrom, reasonably warrant the intrusion.

Commonwealth v. White, 358 Pa.Super. 120, 127-28, 516 A.2d 1211, 1215 (1986). “If incriminating evidence establishing probable cause for arrest is discovered after the temporary stop, a lawful arrest may then be made.” Commonwealth v. Capers, supra, citing Commonwealth v. Webster, 291 Pa.Super. 271, 276-77, 435 A.2d 1217, 1219-20 (1981).

In the instant case, testimony at the suppression hearing demonstrated that the police officers who eventually arrested appellant were engaged in questioning another individual on a street in Philadelphia on the date of appellant’s arrest when they were approached by a person unknown to them. This unknown person told one of the officers that there was a man with a gun on a nearby street. The officer walked around the corner and saw two males, one of them the appellant, standing on the corner, approximately thirty yards from the officer. The area was well lighted and the officer observed appellant holding a gun in his right hand. After seeing the officer, appellant and the other man got into a car and the police followed in their van. The van forced the car to stop and one of the officers ordered the individuals in the car (there were four) to place both of their hands on the ceiling of the car. The officer, observing that appellant had placed only one of his hands on the ceiling, opened the door of the car and saw that appellant had his right hand on his lap with a gun. The officer pulled appellant from the car, and tossed the gun aside. Another of the passengers possessed a gun in his belt which held a fully loaded and cocked automatic weapon.

Following this stop, appellant was arrested and transported to the police station, along with the gun which was seized from him. At the police station, one of the detectives noticed a similarity in appearance of appellant and the gun to the description which had been given him by the victim of the instant robbery. Subsequently, a photo array was compiled and shown to the victim, leading to appellant’s arraignment on the robbery charges.

Appellant's contention that the police stop leading to his arrest was illegal is totally devoid of merit. The fact that the tipster was anonymous does not concern us because the police authority to make a stop does not require compliance with the standards of probable cause. The fact that the police observed the appellant with a gun was sufficient to justify the police stop of the vehicle. The subsequent actions of appellant and his cohort were more than sufficient probable cause for a legal arrest. See Commonwealth v. Bartlett, 486 Pa. 396, 406 A.2d 340 (1979) (crucial test in determining the presence of probable cause is whether the facts and circumstances known to the police would warrant a person of reasonable caution in believing the suspect has committed or is committing a crime).

Appellant argues that the photo array presented to the victim from which an identification was made was unduly suggestive because appellant was the only person in the array possessing a glass eye. He also contends that he was denied due process because his counsel was not present at the array. With regard to the suggestiveness of an identification procedure, we have consistently held that only if the totality of circumstances shows that the identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” will the evidence be suppressed. Commonwealth v. Monroe, 373 Pa.Super. 618, 622-23, 542 A.2d 113, 114-15 (1988), appeal denied, 522 Pa. 574, 559 A.2d 36 (1989), quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

Testimony from the suppression hearing reveals that the photo array in the instant case was comprised of eight black males (appellant is black) in the age range of nineteen to thirty, at least two others of which had unusual eye characteristics. The detective in charge of the investigation of this case had told the detective who assembled the array to find males with glass eyes or eye abnormalities. Neither of the police detectives told the victim that there was a picture of his assailant in the array; neither did they suggest to him which photo was to be chosen.

We are satisfied from our review of the record that the lower court did not err in finding that the photographic array was not unduly suggestive. Although none of the other individuals in the array possessed a glass eye, there were others with unusual eye characteristics. This was sufficient to eliminate any suggestiveness in the array.

Appellant asserts that he was improperly denied the right to have counsel present when the photographic array was viewed by the victim. He contends that the Pennsylvania Constitution guarantees this right. We note initially that no such right is provided under the Sixth Amendment to the United States Constitution. See United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). In addition, the question of the right to counsel at a photographic array as provided by the Constitution of Pennsylvania was addressed in Commonwealth v. McKnight, 311 Pa.Super. 370, 457 A.2d 931 (1983). In that case, a panel of this court held that in Pennsylvania, the right to counsel at a photographic array does not attach when the suspect is in custody for a different offense than that for which the array has been compiled. Id., 311 Pa.Superior Ct. at 375, 457 A.2d at 934.

In this case, it is apparent from the record that at the time the photo array was displayed to the victim of the robbery in the instant case, appellant was in custody on separate charges, i.e., those related to appellant’s conduct on the date of his arrest, March 24, 1988. Appellant was not charged with the robbery in the instant case until April 6, 1988. The photo array was displayed to the victim of the instant crimes on March 25, 1988. Thus, there was no right to counsel at the time of the photo array.

Appellant contends that the lower court erred in denying his request for a lineup. Appellant has not provided this court with record citations which would allow us to review the alleged denial of his request. In addition, the lower court indicated that no motion for a lineup was ever made by appellant. Under these circumstances, we may find the issue waived. Commonwealth v. Rozanski, supra; Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A.; Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986) (issue not raised in trial court cannot be raised for first time on appeal).

Even if the issue were not waived, we would find it without merit. The grant or denial of a request for a lineup is within the sound discretion of the trial court, and such a decision will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Rush, 522 Pa. 379, 562 A.2d 285 (1989). A criminal defendant has no constitutional right to a lineup. Commonwealth v. Lark, 316 Pa.Super. 240, 462 A.2d 1329 (1983), aff'd, 505 Pa. 126, 477 A.2d 857 (1984). “[0]nly in those cases where an identification lacking a strong indicia of reliability is the sole evidence against the defendant should a defendant’s timely request for a lineup be granted.” Commonwealth v. Beverly, 377 Pa.Super. 438, 441, 547 A.2d 766, 767 (1988), appeal denied, 523 Pa. 630, 564 A.2d 1259 (1989) citing Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979).

The evidence in this case shows that the identification of appellant by the victim, both in the photo array and at trial, was reliable because of the ample period of time in which to observe, favorable lighting conditions, and close proximity of the perpetrator at the time of the robbery. All of these conditions combined to make the victim’s subsequent identification of the victim reliable; therefore, the lower court did not or would not have erred in denying appellant’s request for a lineup.

Appellant asserts that the lower court erred in denying suppression of evidence of the firearm found at the time of appellant’s arrest. He contends that the evidence was insufficient to establish that the gun was his or to demonstrate that the gun found on March 24, 1988 was the same gun used in the robbery on March 20, 1988. We have previously discussed this contention and found it without merit. Additionally, appellant argues that since appellant’s afrest was unlawful, seizure of the gun was also unlawful subject to the exclusionary rule. Since we have found that appellant’s arrest was not unlawful, the claim that the seizure of the gun was the fruit of an illegal arrest is of no validity. Appellant also contends that it was error for the lower court to have admitted the gun into evidence. However, since appellant did not object to the admission of the gun at trial, his claim in this regard is waived. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) (failure to object at trial renders claim waived for appellate review).

Appellant next contends that the lower court erred in permitting the prosecution to impeach his credibility on the basis of his prior record if he testified. Appellant has provided this court with no record citations relative to this occurrence at trial. Therefore, we are unable to review this allegation of error. See Commonwealth v. Rozanski, supra (failure to advise appellate court specifically where alleged error occurred in lengthy record results in waiver). In addition, appellant’s argument overlooks two crucial facts which effectively defeat his argument: (1) appellant did not testify at trial, and (2) his credibility was not impeached by evidence of prior crimes. His argument therefore is so abstract in both its logical components and the lack of record citations that it renders our review of it impossible.

The next argument which appellant presents is that the lower court erred in refusing to permit the jury to see the photographic array and initial police report of the robbery during their deliberations. We must again rely upon Commonwealth v. Rozanski, supra, because appellant has failed to provide record citations for this allegation of trial court error, and we note, appellee has alleged that no request was made by appellant at trial for these items to go out with the jury, nor did the jury ask the court to view them. As appellant has provided no record citations which would allow us to conclude otherwise, the claim is totally frivolous.

Appellant next alleges that the lower court erred in permitting inconsistent verdicts to stand. The “inconsistency” to which appellant points is that the jury found appellant guilty of robbery, serious bodily injury and not guilty of robbery, bodily injury. Appellant asserts that these verdicts were inconsistent and that “[i]t was error for the court to deny j.n.o.v. and new trial should be granted.” The fact that the jury found the appellant guilty of one of the robbery counts and not guilty of the other does not make the verdicts inconsistent; it simply indicates that the jury predicated their finding of guilt on the fact gleaned from the evidence that appellant put the victim in fear of serious bodily injury and not mere bodily injury at the time of the robbery. Even if the verdicts were inconsistent, we would not grant appellant relief because the inconsistency of verdicts in a criminal case does not provide a basis for relief. Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106 (1988) appeal denied, 522 Pa. 603, 562 A.2d 826 (1989). In addition, the court procedure of entering a judgment non obstante veredicto does not extend to criminal prosecutions. Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492 (1956). Thus, on this latter point, appellant’s claim is also devoid of merit.

Finally, appellant alleges several claims of ineffectiveness of trial counsel. Such claims must be evaluated under the following standard.

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim ... If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests ... Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him____

Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989) (citations omitted).

Appellant’s first allegation of ineffectiveness is that trial counsel was ineffective for failing to produce certain witnesses, including two witnesses who knew the victim for the purpose of impeaching his credibility, the police officer who found the gun on the date of appellant’s arrest, and appellant’s co-defendant to testify that he (co-defendant) owned the gun found at the time of appellant’s arrest and that appellant at no time had possession or use of the gun.

In order to prove that trial counsel was ineffective for failing to investigate or call witnesses, the appellant must set forth the names and whereabouts of the witnesses, the substance of their testimony and how they would have “appreciably strengthened the defense.” Commonwealth v. Clemmons, 505 Pa. 356, 365, 479 A.2d 955, 959 (1984). In addition, appellant must show that trial counsel knew of the existence of the witnesses who allegedly should have been called. Id. However, trial counsel’s decisions as to matters of trial strategy cannot be the subject of a finding of ineffectiveness. Commonwealth v. Collins, 519 Pa. 58, 545 A.2d 882 (1988); Commonwealth v. Blair, 491 Pa. 499, 421 A.2d 656 (1980).

In regard to the calling of the police officer, appellant’s allegation of ineffectiveness is totally unfounded because this officer was called as a witness by the Commonwealth and cross-examined by appellant’s trial counsel. As to his decision not to produce the other witnesses identified by appellant, trial counsel testified at the post-trial hearing that in both instances, his decision was a matter of trial strategy. Trial counsel’s decision not to call the two witnesses identified by appellant as having been acquainted with the victim was related to counsel’s strategy of presenting an alibi defense to the effect that appellant could not have been present at the scene of the crime because he was at home at the time of the robbery. The testimony of the two witnesses who knew the victim was not relevant to this strategy of defense. As to trial counsel’s decision not to call appellant’s co-defendant, trial counsel testified that the decision was made based upon the fact that charges had been brought against this individual relative to the carrying of firearms in public. Therefore, the witness would be able to assert his right against self-incrimination on the witness stand with regard to questioning about that incident, which is appellant’s asserted purpose for having the testimony of this witness. Since trial counsel’s decisions as to trial strategy cannot be the subject of a finding of ineffectiveness, and we find the strategy of counsel herein reasonable, we must reject appellant’s claim of ineffectiveness for failure to call witnesses.

The next contention of ineffectiveness which appellant asserts is that trial counsel “failed to show that the same officers who arrested Appellant were the ones who told Porter what to say at trial.” Appellant argues that the detective who arrested appellant for robbery told the victim at the photo array that appellant’s photo was “the one.” Appellant also contends that the same detective showed the victim the gun one week before the trial so that the victim would testify that the gun was the one used in the robbery. The lower court found no merit to these arguments and our review of the record reveals that there was no evidence of either of these occurrences. Since the underlying claim is wholly without merit, trial counsel cannot be deemed to have been ineffective in this regard.

Appellant claims that prior counsel was ineffective for failing to move to compel the name of the informant who told the police on the date of appellant’s arrest that there was “a man with a gun” around the corner. Appellant also asserts that prior counsel was ineffective in failing to request a lineup. We have previously found the underlying claims in these two alleged instances of ineffectiveness to be without merit. Accordingly, prior counsel will not be deemed ineffective for failing to assert them.

The next claim of ineffectiveness which appellant advances is that trial counsel failed to advise him of the advantages of a plea bargain offered by the Commonwealth. This claim is belied by the record of the post-verdict hearing in which prior counsel testified that appellant would not accept a plea bargain which would include the mandatory minimum sentence of five years as was required by the facts of this case. Therefore, this claim of ineffectiveness is without merit.

Finally, appellant claims that prior counsel was ineffective for failing to object to the verdict as inconsistent and to the sufficiency of the evidence to support the verdict of guilty on the robbery charge. We have previously found both of these underlying claims to be without merit. Accordingly, we will not find trial counsel ineffective for failing to assert them.

Judgment of sentence affirmed.

      . We are not able to address appellant’s contention concerning a pre-trial exhibition of the weapon to the complainant because there are no record citations and we are thus unable to review the handling of this issue at trial. See Commonwealth v. Rozanski, 289 Pa.Super. 531, 433 A.2d 1382 (1981) (waiver of issue where appellant fails to provide reviewing court with record citations in length record). Appellant’s contention that the evidence was insufficient to sustain his firearms conviction because it was error to deny his motion to suppress will be discussed infra in connection with his contentions of suppression court error.

      . On pages 21-26 of his appellate brief, appellant lists numerous other “[c]itations in support of error in denying Motion to Suppress.” Since these “citations of error” are listed in only cursory fashion and without argument, we will not address them further.


author:
MONTEMURO, Judge: JOHNSON, Judge,
      ROWLEY, Judge,

text:
    581 A.2d 193
    VALLEY PEAT & HUMUS, Appellant, v. SUNNYLANDS, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued May 8, 1990.
    Filed Oct. 5, 1990.

      Bradley K. Moss, Philadelphia, for appellant.
    Paul Logan, King of Prussia, for appellee.
    Before CAVANAUGH, ROWLEY, McEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   MONTEMURO, Judge:

Underlying the present appeal is a breach of contract action commenced by the appellant, Valley Peat & Humus, in November of 1984. Following the filing of the complaint, discovery ensued between the parties and the record before us contains interrogatories and deposition testimony. On November 3, 1988, appellant’s trial counsel, Attorney Rex F. Brien, filed a certificate of readiness requesting that the matter be placed on the trial list. Counsel for the appellee, Sunnylands, Inc., thereafter filed a motion for a continuance due to the unavailability of a material witness. By Order dated December 13, 1988, the trial court granted appellee’s motion for a continuance of trial, and scheduled trial for 9:30 a.m. on March 6, 1989. Due to the fact that Attorney Brien did not appear for trial, the trial court, pursuant to Pa.R.C.P. 218, dismissed appellant’s cause of action against appellee with prejudice by Order dated March 7, 1989.

On March 14, 1989, appellant filed a petition for reconsideration of the entry of the non pros judgment. Although not entered in the docket, our record contains an Order signed by the trial court on March 16, 1989, which denied appellant’s reconsideration petition. Later, on May 9, 1989, the trial court again denied appellant’s reconsideration petition and entered an Opinion concerning this matter. On April 4, 1989, the appellant filed a notice of appeal from the March 7, 1989, non pros judgment. Although appellant’s reconsideration petition was viewed and disposed of by the trial court as, essentially, a petition to open the non pros judgment, the present appeal is a direct appeal from the entry of the non pros judgment.

We first address the question of whether a direct appeal from a non pros judgment is proper, or whether a petition to open the non pros judgment must be filed and denied by the trial court prior to seeking appellate review. As an intermediate appellate court, our answer to this question must comport with the law as established by our Supreme Court. The Pennsylvania Supreme Court has accepted direct appeals from the entry of judgments of non pros, and the Court has disposed of these appeals on the merits. See James Bros. Lumber v. Union Banking & Trust Co., 432 Pa. 129, 247 A.2d 587 (1968); Manson v. First Nat’l Bank, 366 Pa. 211, 77 A.2d 399 (1951). This Court has also entertained appeals filed directly from the entry of a judgment of non pros in the trial court. See Roseman v. Hospital of the University of Pennsylvania, 377 Pa.Super. 409, 547 A.2d 751 (1988); Carroll v. Kimmel, 362 Pa.Super. 432, 524 A.2d 954 (1987), appeal denied, 517 Pa. 613, 538 A.2d 496 (1987). Indeed, in Erie Human Relations Commission v. Erie Insurance Exchange, 304 Pa.Super. 172, 450 A.2d 157 (1982), this Court quashed an appeal wherein appellants had failed to file the appeal within thirty day of the entry of the non pros judgment but, instead, had waited to file the appeal until the trial court had denied their exceptions.

In reviewing the entry of a non pros judgment, it is well settled law that the decision will not be reversed on appeal absent an abuse of discretion on the part of the trial court. The granting of a non pros judgment is founded upon the equitable doctrine of laches. James Bros. Lumber v. Union Banking & Trust Co., supra 432 Pa. at 133, 247 A.2d at 590. There are three general considerations which must be entertained by the trial court before a non pros judgment may properly be entered: “... a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses.” Id., 432 Pa. at 132, 247 A.2d at 589 (citations omitted).

According to Supreme Court precedent, however, upon the entry of a judgment of non pros, an appeal need not be immediately pursued. A party may file a petition to open the non pros judgment in the trial court and, upon the denial of this petition, file and perfect an appeal. Such appeals have been accepted and reviewed on the merits by the Supreme Court and by this Court, even though a petition to open, was not filed or disposed of by the trial court within thirty days of the entry of the non pros judgment. In Narducci v. Mason’s Discount Store, 518 Pa. 94, 541 A.2d 323 (1988), a judgment of non pros had been entered by the Court of Common Pleas of Erie County, on October 25, 1983. A petition to open the non pros judgment was filed March 11, 1985, and granted in July of 1985. The Supreme Court reviewed the merits of the trial court’s decision to grant the petition to open and reversed. The Court recognized that, like the entry of the non pros judgment, a request to open a non pros judgment is based upon the equitable powers of the trial court, and such an exercise of power will not be disturbed on appeal “unless an abuse of discretion is clearly evident.” Id., 518 Pa. at 98, 541 A.2d at 325 (citations omitted). In order to open a non pros judgment, three factors must be present: (1) the petition to open must be promptly filed; (2) the default or delay must be reasonably explained; and (3) facts must be shown to exist which support a cause of action. Id.

We note that the second factor considered by a trial court when entertaining a petition to open a non pros judgment is akin to the following standard employed when entering the non pros judgment in the first instance: absence of a compelling reason for the delay. Further, when entering a non pros judgment or when granting a petition to open a non pros judgment, the trial court is bound to consider the prejudice to the adverse party. Prejudice to the adverse party is a requisite for the entry of a non pros judgment. In considering a petition to open, undue prejudice to the adverse party will prevent the granting of the petition to open:

Seeing that the request to open a judgment of non pros is directed to the conscience of the court, the court is required to balance the equities and to deny the petition even where the elements coalesce if the granting of relief would cause undue hardship or prejudice to the opponents.

Id., 518 Pa. at 98, 541 A.2d at 825 (citations omitted) (emphasis in original).

In summary, we find the present appeal properly perfected. We recognize that the equitable considerations employed when considering the entry of a judgment of non pros as compared to a petition to open a non pros judgment are substantially the same. Although we are of the opinion that the better course for counsel to follow would be to file a petition to open, because it gives the trial court the first opportunity to open its judgment and at the same time provides a more complete record for appeal purposes, we recognize that counsel has a choice. If there is to be a change in this area of the law, this change must come from our Supreme Court.

We note the dissent’s view that the general three prong test requiring: (1) a want of due diligence; (2) no compelling reason for the delay, and (3) some prejudice, has no application to non pros judgments entered under Rule 218. Although the position has superficial appeal, we do not agree. It is most important to remember that underlying the entry of a judgment of non pros, whether pursuant to Rule 218 or otherwise, is equity. The entry of a non pros judgment depends upon a proper balancing of equitable considerations in the discretion of the trial court. Although, like the dissent, we favor a procedure wherein a petition to open a non pros judgment would be filed and ruled upon by the trial court prior to the filing of an appeal, this does not assist us in reviewing the case sub judice. We must review the exercise of the trial court’s discretion on March 7, 1989. We must assure that the trial court did not abuse its discretion in balancing all of the surrounding facts and circumstances present at the time of the entry of the March 7, 1989, non pros judgment. The three part test is completely consistent with the language of Rule 218. The trial court must determine, as a factual matter, whether there is a want of due diligence or, in other words, whether the plaintiff is “not ready” for trial. Additionally, the court must determine whether there is a compelling reason or a “satisfactory excuse” for the delay. Finally, although Rule 218 makes no mention of prejudice to the party who has appeared for trial, prejudice has traditionally been a consideration in all non pros cases. In each type of case, and in each unique factual situation, the general considerations as espoused in the three part test for the entry of a non pros judgment will be given precise definition. While the element of prejudice may be less important in Rule 218 cases, where it has been determined that a plaintiff is not ready for trial without satisfactory excuse, we believe that prejudice must still be considered by the trial court prior to determining, as an equitable matter, that the entry of a non pros judgment is appropriate. To ignore this factor in balancing the equities in a non pros case, simply because the language of Rule 218 fails to mention prejudice explicitly, would amount to an abuse of the trial court’s discretion.

Turning to the facts of the present case, we find that the trial court abused its discretion in entering the judgment of non pros. A review of the record establishes that counsel had a compelling reason for his failure to arrive on March 6, 1989, and for his late arrival on March 7, 1989. Moreover, there is nothing in the record to show undue prejudice to the appellee, Sunnylands, Inc., except for the general reference that “witnesses may not be available at a continued trial.” Brief for Appellee at 7.

There is no dispute that on March 6,1989, the date set for trial of the instant matter, there was a snowstorm. Indeed, the trial court notes that jury selection on that day was delayed for two hours because of the snow. See Op. of Trial Court, May 9, 1989, at 1. Further, there is no dispute that appellant’s counsel, Attorney Brien, contacted the Pike County Court Administrator’s Office several times on March 6, 1989, to inform the court that despite an effort to travel on the roads, counsel was unable to make the trip from Philadelphia to Pike County. Attorney Brien requested a continuance, and this request was refused by the trial court. Id. at 2. On the following morning, Attorney Brien called the trial court and inquired as to whether he was to be in court on that day for jury selection. Learning that he was expected, Attorney Brien began the trip to Pike County. The trial court moved jury selection for appellant’s case to the end of the list of cases for trial. When Attorney Brien did not arrive by 10:43 a.m., the court on its own motion dismissed the case with prejudice for failure of counsel to appear. When Attorney Brien arrived at approximately noon on March 7, 1989, he was advised that the case had been dismissed.

Given the weather conditions on March 6, 1989, and Attorney Brien’s clear notice to the court that he would not be able to reach Pike County on that day, we are convinced that had the court entered a non pros judgment on March 6, Attorney Brien would have had a compelling reason for his failure to appear on that day. However, the trial court, according to its Opinion, dismissed appellant’s case for another reason. The trial court states in its Opinion that Attorney Brien “failed to comprehend, or chose to ignore” instructions that he was to report for jury selection at 9:30 a.m. on March 7, 1989. Instead, Attorney Brien called the court in the morning of March 7 at approximately 9:15 a.m., verified that he was expected to select a jury that day, and then began his journey to Pike County.

The authority of the trial court to enter a non pros judgment under Rule 218 is based upon a plaintiffs failure to “be ready” when a case is called for trial. Implicit in Rule 218 is a failure of plaintiff or his counsel to be diligent in determining when the case is to be called for trial. See Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986) (plaintiff would not be relieved from judgment of non pros where plaintiffs counsel had failed to monitor major jury list to learn when the case was scheduled to commence; it was counsel’s duty as a diligent practitioner to monitor major trial list and individual judge calendars). See also Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988) (vacation of non pros proper where both parties displayed a similar lack of due diligence in failing to monitor the trial list so as to appear when the case was called for trial). Although Attorney Brien was admittedly not present at 10:43 a.m., on March 7, 1989, when the trial court called appellant’s case, we find that under the particular circumstances of the present case, appellant was “not ready” under Rule 218 in only a technical sense. There is no question that the trial court was aware of Attorney Brien’s efforts to travel to the courthouse in Pike County on the previous day, and of Attorney Brien’s communication with the trial court that, although he was aware that appellant’s case was scheduled to commence on March 6, he was physically unable to reach the courthouse that day. Although Attorney Brien was not present when the court opened on the following day, the trial court was aware he was on his way as the court moved the case to the end of the list for jury selection. Whether Attorney Brien misunderstood or was mistaken concerning his directions to be present at the start of court on March 7, or whether he failed to follow them knowingly and, instead, phoned the court first on March 7 before travelling to Pike County, we do not know. In any event, given the general disruption of the court’s calendar due to the snowstorm on March 6, and the admitted conduct of Attorney Brien in notifying the court concerning his whereabouts on March 6 and again on March 7, 1989, we find that the trial court abused its discretion in determining that the failure of Attorney Brien to be present earlier than noon on March 7 was not “satisfactorily excused.” See Pa.R.C.P. 218. Given the general disruption in the court’s calendar, we are convinced that a compelling reason existed for the delay which occurred in this matter, thus precluding the entry of a non pros judgment.

In reaching our decision, we are mindful of the following statements of our Supreme Court:

Dilatory practices by lawyers cannot be countenanced. Nor can lawyers be permitted to disrupt the orderly process of disposition of litigation by the sheer weight of the number of cases which they are engaged to try. But it must always be borne in mind that law suits are more than numbers or punches in computer cards. Individual cases are, of course, of great importance to the litigants involved, and courts must not overreach in their zeal to move cases to such an extent as to allow for no deviations from strict or literal adherence to policies justifiably laid down to improve the condition of the courts.

Budget Laundry Company v. Munter, 450 Pa. 13, 21-22, 298 A.2d 55, 58 (1972)

The Order of March 7, 1989, dismissing appellant’s case pursuant to Pa.R.C.P. 218, is hereby reversed and vacated. This matter is remanded for further proceedings. Jurisdiction is relinquished.

Opinion by MONTEMURO, J., joined by CAVANAUGH, McEWEN, OLSZEWSKI, DEL SOLE and HUDOCK, JJ.

Dissenting opinion by JOHNSON, J., joined by FORD ELLIOTT, J.

Dissenting statement by ROWLEY, J.

JOHNSON, Judge,

dissenting.

This case was reargued before the court en banc to consider whether an appeal is properly taken directly from the entry of a judgment of non pros on the court’s own motion or whether it is properly taken only after a petition to open the judgment of non pros has been filed and denied. A companion case, Elcomp, Inc. v. Drolet, 398 Pa.Super. 421, 581 A.2d 203 (1990) (en banc), reargued the same day, raises an identical issue, where the judgment of nonsuit is entered on motion of the defendant. Both cases involve the invocation of Pa.R.C.P. 218, Party Not Ready When Case Is Called For Trial. In neither case was a petition to open the judgment filed.

As the majority recognizes, the procedural events in this case did not follow their normal course. After the trial court had granted the non pros, counsel for Valley Peat & Humus (VP & H) mailed Plaintiff’s Motion for Reconsideration to the Pike County Prothonotary from counsel’s Philadelphia office. Attached to the Motion was an Affidavit executed by counsel. The Motion was denied by the court on March 16, 1989, although the order denying the motion has not been separately docketed. The certified record includes an Answer to the Motion for Reconsideration, filed March 23, 1989. The Answer controverts many of the averments contained in either the Motion or the attached Affidavit. The appeal to this court was taken from the order of March 7, 1989 entering the non pros. The notice of appeal was filed April 4, 1989.

Unlike the majority, I am unable to conclude upon my review of the certified record that “counsel had a compelling reason for his failure to arrive on March 6, 1989 and for his late arrival on March 7, 1989.” We can consider only the certified record on appeal when reviewing a case. Barner v. Barner, 364 Pa.Super. 1, 527 A.2d 122 (1987). Sunnylands, Inc., through its Answer to the Motion, has expressly denied some of the very “facts” which the majority has lifted from VP & H’s Motion and its Brief.

More importantly, the majority seemingly relies upon “facts ... which the trial court itself accepted in its Opinion of May 8, 1989.” Majority at page 409, fn. 5. The majority does not specify those places in the certified record where it found and confirmed the facts upon which it now relies. We should not accept a finding which has no competent evidence to support it, but are instead required to make an independent judgment based on the evidence and the testimony. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295, 368 A.2d 635, 637 (1977); citing Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 146-48, 331 A.2d 665, 667 (1974).

My review of the record has not confirmed the so-called “undisputed facts of record” found by the majority. I take my guidance from our Supreme Court which had no difficulty rejecting a trial judge’s certification as to what transpired when that certification differed from what appeared in the official record. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). In Young, Mr. Justice Roberts instructed us:

The fundamental tool for appellate review is the official record of what occurred at trial. Only the facts that appear in this record may be considered by a court____ “[I]t is black letter law that an appellate court cannot consider anything which is not a part of the record in the case”____ Consistent with our responsibility to view only the record facts, we cannot accept the assertions in the trial court’s written opinion that any [jury] instruction was given other than that which appears in the record.

456 Pa. at 114-16, 317 A.2d at 264-65. (citations and footnotes omitted).

The difficult issue, as in all Rule 218 cases, is not whether the trial court could properly enter judgment of non pros on March 7, 1989 upon the plaintiff’s failure to appear. On the certified record, the answer to that question must be a clear: Yes. The important issue is whether the trial court abused its discretion by refusing to vacate that judgment, after receipt of a motion and attached affidavit unaccompanied by a request for a hearing on the motion.

I would agree with the majority that this court need not consider the propriety of the trial court’s conducting its own investigation. I find it unnecessary to consider that facet of the case, since VP & H has not satisfied its burden, on the certified record, of reasonably explaining its two-day absence from the Pike County courthouse.

VP & H improperly filed a motion instead of a verified petition as contemplated by Pa.R.C.P. 206. Cox v. Felice Perri & Sons, 412 Pa. 415, 195 A.2d 79 (1963). The averments of fact in Sunnyland’s Answer would be deemed admitted, under Rule 209, were this matter to be decided on those pleadings as the majority seemingly would do. On the limited averments favorable to VP & H once the proper procedure is applied, I am unable to find an abuse of discretion. I therefore would affirm the trial court order granting the judgment of non pros against plaintiff for its failure to be ready when its case was called for trial.

A judgment of non pros may be entered under varying circumstances. However, in those cases arising under Rule 218 where the appeal is taken immediately from the entry of non pros, the only element controlling the discretion of the trial judge is whether a plaintiff has placed a satisfactory excuse for nonreadiness before the court at the time the case is called for trial. The record in this case contains no such excuse.

While appeal either from a judgment of nonsuit or from a grant or denial of a petition to open is now permitted, the better practice in Rule 218 dismissals is to require the barred plaintiff to petition to remove the non pros or nonsuit and have that petition decided before an appeal is taken. Where this is done, and where the petition practice contemplated by Pa.R.C.P. 205 through 209 is followed, it would necessarily involve the taking of testimony to establish the verity of the facts alleged for the removal of the judgment. Cox v. Felice Perri & Sons, 412 Pa. at 417, 195 A.2d at 80. Two positive outcomes will normally occur. First, the trial court which entered the judgment will have an opportunity to review its action based upon the record made. Second, the reviewing court will then have an evidentiary record as well as the trial court’s reasoning in support of its decision to either remove the nonsuit/non pros or deny such removal.

Our endorsement of such a practice in cases involving Rule 218 does not conflict with our limited role as an intermediate appellate court. I am in complete agreement with the majority that if the filing and disposition of a petition to open judgment of non pros prior to taking an appeal is to become mandatory, that change must come from our Supreme Court. This in no way is inconsistent with a desire that the proper standard of review be employed on direct appeals from entry of Rule 218 nonsuit/non pros judgments.

The majority declares that “prejudice has traditionally been a consideration in all non pros cases”. Majority page 197. This assertion would be more persuasive if accompanied by either (1) a citation to any case involving Rule 218 (or party not ready when case called for trial) where the element of prejudice is mentioned, or (2) an explanation as to why prejudice is not mentioned in those cases involving Rule 218, where the appeal is taken from the denial, or grant, of a petition to open. See Nivens v. Chestnut Hill Hospital, supra, and Toczylowski v. General Bindery Co., supra. We do the practicing bar a disservice when we fail to distinguish between the separate, and distinguishable, three-part tests applied in matters arising under Rule 218, on the one hand, or under other rules, such as Rule 1037, on the other hand.

Rule 218 has recently been amended, effective July 1, 1990, to afford the plaintiff an option on appeals from an award in compulsory arbitration. That amendment is not pertinent here. At the time of the entry of the order here under review, Rule 218, in its entirety, provided:

RULE 218. Party Not Ready When Case is Called for Trial
When a case is called for trial, if without satisfactory excuse a plaintiff is not ready the court may enter a non-suit on motion of the defendant or a non pros on the court’s own motion. If without satisfactory excuse a defendant is not ready, the plaintiff may proceed to trial.

I must take issue with my learned colleagues regarding the considerations which a trial court must entertain before it can enter a Rule 218 non pros judgment. The majority cites James Bros. Co. v. Union B. & T. Co. of DuBois, 432 Pa. 129, 247 A.2d 587 (1968) for the following principle:

A Court may properly enter a judgment of non pros, when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses.

Id., 432 Pa. at 132, 247 A.2d at 589 (citations omitted). That is the correct standard when considering a non pros entered following the filing of a petition for a rule to show cause, the granting of that rule, submission of briefs and argument, and the possible entry of a rule absolute. Such was the case in James Bros. Co., supra. That case did not involve the unreadiness or nonappearance of a party when a case is called for trial.

Considerations such as “a want of due diligence”, “reasonable promptitude” and “prejudice” are all matters which may be alleged and sought to be proven through the filing of a petition for a rule to show cause and the proceedings that necessarily ensue. I do not question the efficacy of the principle when applied in appropriate cases. Rule 218 dismissals do not, however, activate that three-part test.

To the contrary, the court is properly concerned with only two factors when confronted with a direct Rule 218 challenge: (1) is the plaintiff “not ready” (that is to say, does not appear or refuses to go forward) and (2) is the plaintiff “without satisfactory excuse.” Where these two elements coalesce, an abuse of discretion in granting the nonsuit or in entering the non pros will not arise.

The three-pronged test which the majority extracts from Narducci v. Mason’s Discount Store, 518 Pa. 94, 98, 541 A.2d 323, 325 (1988) is, in my view, inapplicable in Rule 218 cases where, as here, an immediate appeal has been taken. To begin, Narducci involved the review of an order vacating a judgment of non pros which had been entered upon plaintiffs failure to file adequate answers to interrogatories. The fact situation in Narducci did not involve unreadiness when the case was called for trial but rather an extended history of protracted delay over a number of years. Our Supreme Court stated that in order for a judgment of non pros to be opened, (1) the petition to open must be promptly filed; (2) the default or delay must be reasonably explained; and (3) facts to support a cause of action must be shown to exist.

None of the cases relied on by our Supreme Court in Narducci, in citing the above three-pronged test, have any relevance to the situation posed by Rule 218. Hutchison v. Hutchison, 492 Pa. 118, 422 A.2d 501 (1980) involved entry of a default judgment for arrearages in support, following a rule to show cause. Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973) involved a default judgment entered following defendant’s failure to respond to an endorsed complaint within twenty days. Both Goldstein v. Graduate Hospital of the University of Pennsylvania, 441 Pa. 179, 272 A.2d 472 (1971) and Thorn v. Clearfield Borough, 420 Pa. 584, 218 A.2d 298 (1966) involved a judgment of non pros entered for failure to file a complaint within twenty days after issuance of a rule.

Two recent cases in our court demonstrate the proper application of a three-pronged test in matters involving the invocation of Rule 218. Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988); and Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986). Both cases involved a failure by plaintiff to answer when the trial list was called. In both cases, a judgment of non pros was entered. In both cases, a petition to vacate the judgment of non pros was filed. In both cases, the petition was granted and the non pros vacated, prompting an appeal to this court in each case.

A three-pronged test was applied by this court in both Nivens and Toczylowski. the third prong in both of those cases was that a party seeking vacation of a judgment must demonstrate that “(8) the facts constituting grounds for a cause of action are alleged.” Nivens, 373 Pa.Super. at 379, 541 A.2d at 366; Toczylowski, 359 Pa.Super. at 577, 519 A.2d at 503. This is consistent with Narducci, supra, 518 Pa. at 98, 541 A.2d at 325, upon which the majority on this appeal sometimes relies. The criterion was utilized to determine whether the trial court abused its discretion in vacating or opening the judgment of non pros. The rule was not applied to test the original entry of the non pros. Equally significant, there is no suggestion in either Nivens or Toczylowski that prejudice plays any role in the analysis. And in Narducci, prejudice becomes a factor only after the three factors comprising the tripartite test have been established and the court, in doing equity, must avoid undue hardship or prejudice to the opponents. Narducci, supra, 518 Pa. at 98, 541 A.2d at 325.

The majority does not explain whether its standard of review on this appeal employs, as its third prong, the “existing facts to support a cause of action” criteria in Nivens, Toczylowski and Narducci, or the “delay causing some prejudice” standard in James Bros. Co., supra, or both.

Because the content of the order from which the appeal is taken materially affects the outcome of an appeal, this distinction is not superficial. Where the appeal is taken directly from the entry of nonsuit or non pros under Rule 218, the three-pronged test would not be applicable, and a showing of abuse would be extremely difficult. If, however, the appeal is delayed until after the trial court has acted upon a petition to remove the nonsuit, the certified record will normally contain the facts against which the elements of the correct tripartite standard should be applied.

To recap, as an intermediate appellate court, it is not our role to engage in rule making. A direct appeal from the entry of a judgment of non pros or nonsuit under Rule 218 would appear to be entirely proper. There is no express provision governing practice following the entry of a Rule 218 dismissal. I would disagree with my esteemed colleagues in the majority, however, concerning the extent to which our supreme court has countenanced direct appeals from Rule 218 dismissals. None of the cases cited by the majority involve Rule 218 judgments. In both of the recent cases decided by this court where Rule 218 was implicated—Nivens and Toczylowski—the parties followed the petition practice. This permitted our court to apply the correct three-pronged test to the facts as developed through petition and answer.

I would also commend to the trial bar that in all matters involving the entry of a judgment of nonsuit or non pros under Rule 218, the aggrieved party proceed by petition and answer to seek removal of the nonsuit prior to any appeal. The appeal thereafter would be from the order removing, or refusing to remove, the nonsuit.

I advocate a different procedure from my distinguished colleagues. On this appeal, I do not believe either three-part test plays any role. That is because, as the majority points out, we are reviewing only the order entering non pros on the court’s own motion. To review that order, we need only be aware of what was before the trial court at the moment that the order was about to be entered. When I review the certified record, and when I limit my review to only those matters which were filed of record either on or before March 7, 1989,1 come up with far fewer “undisputed facts” than does the majority. I find no abuse of discretion from the entry of the order of non pros. I would affirm that order. Therefore, I dissent.

Joined by FORD ELLIOTT, J.

ROWLEY, Judge,

dissenting:

This is a direct appeal from the order of March 7, 1989, which dismissed the complaint and, in effect, entered a judgment of non pros. I agree with Judge Johnson that upon reviewing such an appeal and addressing the question of whether the trial court abused its discretion, we are to consider only that evidence which was before the trial court at the time of the entry of judgment of non pros. As a reviewing court, it is inappropriate for us to substitute our judgment for that of the trial court, to find facts, or to exercise our discretion in applying the law to the facts as found. It is the trial court’s function to find facts and apply the law to them. In the present case, there is no evidence which was of record on March 7, 1989, which suggests that the dismissal of the complaint was an abuse of discretion.

However, I also agree with the majority that the Supreme Court has authorized appeals to be taken not only directly from a judgment of non pros, but also from an order denying a petition to open a judgment of non pros. Since it is appropriate to seek to have a judgment of non pros opened rather than file a direct appeal from the judgment of non pros, the procedure for seeking to open the judgment should be followed through to conclusion before our Court attempts to review the judgment of non pros where the parties have commenced such a procedure. In other words, once a party commences proceedings for review of a judgment of non pros in the trial court, the pleadings should be closed, an evidentiary hearing should be conducted if there are disputed questions of fact, and the trial court should make findings of fact before the Superior Court reviews the judgment of non pros. This did not happen in the present case.

In the case before us, the parties attempted to follow such a procedure: appellant filed a “Motion for Reconsideration” and appellee filed an Answer in response thereto which controverted many of the averments in the Motion. However, there has not been a hearing at which evidence in support of the controverted facts can be set forth, and the trial court has not made any findings of fact.

Because of the perceived uncertainty of the procedure to follow after entry of a judgment of non pros, as evidenced by this Court’s en banc consideration of the issue, I would not dispose of appellant’s direct appeal from the order dismissing the complaint on the merits, but instead would remand for completion of the fact-finding process initiated by appellant’s “Motion for Reconsideration.”

For these reasons I respectfully dissent.

      . We note that Pa.R.C.P. 218 specifically provides:
      When a case is called for trial, if without satisfactory excuse a plaintiff is not ready the court may enter a non-suit on motion of the defendant or a non pros on the court’s own motion. If without satisfactory excuse a defendant is not ready, the plaintiff may proceed to trial.

      . The dissent views the issue presented in this case as "not whether the trial court could properly enter judgment of non pros on March 7, 1989 upon the plaintiffs failure to appear.” The present appeal was perfected on April 4, 1989, and was taken directly from the entry of the non pros judgment on March 7, 1989. This, then, is the proceeding and the order which shall be reviewed on appeal.

      . The holding in Erie Human Relations Commission v. Erie Insurance Exchange, 304 Pa.Super. 172, 450 A.2d 157 (1982), was later viewed by a panel of this Court as limited to its facts. See Iole v. Western Auto Supply Company, 352 Pa.Super. 528, 532 n. 3, 508 A.2d 600, 602 n. 3 (1986).

      . The appellant has argued that it was improper for the trial court to conduct its own investigation of this matter by acquiring affidavits from various court employees. We will not specifically consider whether the trial court’s conduct in this regard was improper, because the averments in these affidavits have no effect on the disposition of this appeal.

      . The facts upon which we base our determination today are facts which the trial court itself accepted in its Opinion of May 8, 1989. Thus, contrary to the view of the dissent that we have "lifted” these facts from somewhere else, we are firmly convinced that it is the undisputed facts of record which support our holding in this matter. Specifically, we note the following circumstances which existed at the time the non pros judgment was entered: poor weather conditions, disruption of the court’s calendar, communications from Attorney Brien to the trial court, Attorney Brien’s arrival at noon on March 7, 1989. Significantly, while the signals may have crossed at some point, this is not a case where, having heard only silence from a party, and finding the party absent on the scheduled date and time of trial, the trial court entered a judgment of non pros pursuant to Rule 218.