author: WIEAND, Judge:

text:
    587 A.2d 354
    LABORERS COMBINED FUNDS OF WESTERN PENNSYLVANIA, as agent for Peter J. Livolsi; and Albert W. Betler, Trustees ad litem, Laborers District Counsel of Western Pennsylvania Welfare and Pension Funds, The Construction Industry Advancement Program of Western Pennsylvania Fund, and the Laborers District Counsel of Western Pennsylvania and its affiliated local unions v. Amidio MATTEI, Joseph Mattei and Domenic J. Mattei. Appeal of Amidio J. MATTEI and Domenic J. Mattei.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1990.
    Decided Feb. 26, 1991.

      Paris A. Diamond, Mars, for appellants.
    Gary P. Hunt, Pittsburgh, for appellees.
    Before ROWLEY, WIEAND and HUDOCK, JJ.
   WIEAND, Judge:

As a result of a non-jury trial held in October, 1985, Laborers Combined Funds of Western Pennsylvania, trustees of a health, welfare and pension fund for construction laborers (the Fund), recovered a judgment against Amidio Mattei and Domenic J. Mattei, officers and directors of Mattei Brothers, Inc., for failing to make contributions to the Fund in the amount of $44,241.65. The judgment was affirmed by the Superior Court in December, 1986. See: Laborers Combined Funds of Western Pennsylvania v. Mattei, 359 Pa.Super. 399, 518 A.2d 1296 (1986). In September, 1989, the trustees issued execution on the judgment. Thereafter, the Matteis filed a petition to open or strike the judgment. The trial court dismissed the petition, and the Matteis appealed.

The basis for the petition to strike the judgment was appellants’ contention that the provisions of the Wage Payment and Collection Law, 43 Pa.S. § 260.1 et seq., which imposed personal liability upon officers and directors for contribution, had been preempted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. Such preemption had been found in 1986 by the Third Circuit in McMahon v. McDowell, 794 F.2d 100 (3rd Cir. 1986), cert. denied, 479 U.S. 971, 107 S.Ct. 473, 93 L.Ed.2d 417 (1986). The preemption issue, however, had not been asserted as a defense in the prior action and was not preserved for review on appeal. Indeed, the Third Circuit had previously held that there had been no preemption. See: Carpenters Health & Welfare Fund v. Kenneth R. Ambrose, Inc., 727 F.2d 279 (3d Cir.1983). The issue before this Court, therefore, is to determine whether McMahon v. McDowell, supra, is to be applied retroactively to vitiate the judgment previously entered and now being enforced by appellees.

Counsel have not called to our attention and our own research has failed to disclose any decision dealing with the retroactivity, of McMahon v. McDowell, supra. However, there are decisions in other preemption cases which have refused to apply preemption holdings retroactively to cases adjudicated finally in state courts. These decisions have been carefully reviewed and analyzed in the opinion of the learned trial judge; and, therefore, we quote from his opinion as follows:

“In [McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981)], the Supreme Court held that California’s community property law permitting the distribution upon divorce of military pensions was preempted by federal military pay provisions. Following this decision, numerous attempts were made to overturn property distribution decisions rendered pre-McCarty, on the basis that the courts rendering those decisions had lacked subject matter jurisdiction over the military pension. The courts uniformly rejected such challenges, holding that McCarty should not be applied retroactively so as to overturn settled judgments, (footnote omitted).

“Probably the leading case involving the nonretroactivity of McCarty was Sheldon v. Sheldon, 124 Cal.App.3d 371, 177 Cal.Rptr. 380 (1981), appeal dismissed for want of a substantial federal question, 464 [456] U.S. 941[, 102 S.Ct. 2002, 72 L.Ed.2d 462] (1982). In White v. White, 731 F.2d 1440, 1443 (9th Cir.1984), the Court held that the Supreme Court’s dismissal for want of a substantial federal question was a decision on the merits of the issues presented in the statement of jurisdiction. One of the questions presented in Sheldon was:

Does federal preemption of state community property laws regarding division of military retirement pay render state judgments void for lack of subject matter jurisdiction where such judgments were entered after Congress had preempted area of law?

“Other cases holding McCarty non-retroactive include Armstrong v. Armstrong, 696 F.2d 1237 (9th Cir.), cert. denied[,] 464 U.S. 933[, 104 S.Ct. 337, 78 L.Ed.2d 306] (1983); Erspan v. Badgett, 659 F.2d 26 (5th Cir.1981); Segrest v. Segrest, 649 S.W.2d 610 (Tex.), cert. denied[,] 464 U.S. 894, 104 S.Ct. 242[, 78 L.Ed.2d 232] (1983); Camp v. Camp, 142 Cal.App.3d 217, 191 Cal.Rptr. 45 (1983); F[e]llers v. F[e]llers, 125 Cal.App.3d 254, 178 Cal.Rptr. 35 (1981); Marriage of Vinson, 57 Or.App. 355, 644 P.2d 635 (1982); Rodrigues v. Rodrigues, 133 Ariz. 88, 649 P.2d 291 (1982); Whenry v. Whenry, 98 N.M. 737, 652 P.2d 1188 (1982); and Duke v. Duke, 98 Nev. 148, 643 P.2d 1205 (1982).

“Most of the cases analyzed the retroactivity issue in terms of the criteria laid down by the Supreme Court in numerous cases including Northern Pipeline Construction Company v. Marathon Pipe Line Company, 458 U.S. 50, 102 S.Ct. 2858[, 73 L.Ed.2d 598] (1982). The Court there discussed a tripartite standard for determining whether a judicial decision should be accorded retroactive effect:

1) Was it clearly foreshadowed, or did it overrule precedent?
2) Would retroactive application further or retard the effect of the decision?
3) Would retroactivity bring about substantial inequitable results, including harm to the judicial system?

“The cases refusing to apply McCarty retroactively found that it had not been foreshadowed, despite the fact that in Hisquierdo v. Hisquierdo, 439 U.S. 572[, 99 S.Ct. 802, 59 L.Ed.2d 1] (1979), the Court had previously held that railroad retirement pensions were preempted from state court consideration. The instant case is even a much stronger case against retroactivity, for only three years prior to McMahon, the Third Circuit had specifically held that ERISA did not preempt the [Wage Payment and Collection Law]. Carpenters Health and Welfare Fund v. Kenneth R. Ambrose, Inc., [supra].

“The second factor of Northern Pipeline also points toward non-retroactivity of McMahon. As set forth in McMahon, the purpose of this preemption provision in ERISA is to provide a uniform procedure for assuring the funding of employee benefit plans. While the instant type of suit could conceivably frustrate that procedure in the future, the overturning of judgments years later when no other procedure could then be followed not only would not further the plan of ERISA, but would hinder it further.

“Finally, many of the above-cited cases point to the third factor of Northern Pipeline: ‘Would retroactivity bring about inequitable results?’ In Sheldon v. Sheldon, supra, after noting the emotional and financial turmoil caused by a divorce proceeding, the Court stated:

‘To permit and in fact encourage the relitigation of property interests long after the issues were supposedly settled would merely serve to reopen old wounds and create new ones.’ 177 Cal.Rptr. at 384, 124 Cal.App.3d at 380.

“Certainly a similar situation exists in the labor arena. Where an often fragile peace exists between labor and management, it would be foolhardy to vacate judgments long thought inviolate and thus risk strife where calm previously existed. Particularly is this so where Plaintiffs and others similarly situated relied upon the statutory scheme outlined in the [Wage Payment and Collection Law] in efforts to collect the fringe benefit contributions then due. At this late date, statutes of limitation or other procedural bars such as intervening bankruptcies or dissolutions could impair workers’ ability to collect sums rightfully due them.

“Moreover, according retroactive effect to McMahon could also cause an ‘immense burden on the administration of justice in our civil courts were such relitigation permitted’. Sheldon, ibid. Not only would each judgment debtor seek to reopen the judgment, but executions upon such judgments would be in jeopardy as well. And the employee creditors would of course be bringing other actions to try to enforce their rights through different remedies to replace the remedy newly abrogated.”

The issue of preemption was not raised in defense of appellees’ substantive claim. McMahon was decided by the Third Circuit between the time of trial and argument of the appeal before the Superior Court. The issue of preemption was not argued on appeal, and the judgment entered in the trial court was thereafter affirmed. Appellants did nothing more for almost three years and were nudged into action only when appellees executed upon their judgment. Under these circumstances, appellants’ rights to assert a preemption defense must be deemed to have been lost by their own inaction and the passage of time. The trial court properly refused to strike the judgment.

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    587 A.2d 727
    Samuel B. SADTLER and Jack H. Martinez, Appellants, v. JACKSON-CROSS COMPANY and Lawrence E. Henry, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1990.
    Filed Jan. 31, 1991.
    Reargument Denied March 28, 1991.

      Richard D. Maimed, Philadelphia, for appellants.
    Christine M. Brenner, Philadelphia, for appellees.
    Before CAVANAUGH, WIEAND and HUDOCK, JJ.
   WIEAND, Judge:

If a real estate broker negligently performs an agreement to make an appraisal of real estate, what is the statute of limitations which dictates the time within which the injured party must sue for damages resulting therefrom? This is the principal issue requiring review in this appeal. A secondary issue pertains to the time when the statutory period of limitation begins to run. Does the period begin to run on the date of the erroneous appraisal or on a later date when the error has been or should have been discovered?

In 1981, Samuel Sadtler and Jack Martinez became interested in purchasing a tract of land for development and/or resale. Therefore, they employed Lawrence Henry, who was employed by the real estate brokerage firm of Jackson-Cross Company, for the purpose of making an appraisal of the tract. The appraisal was completed and delivered to Sadtler and Martinez on June 4, 1981. It contained the appraiser’s opinion that the tract had a fair market value of three hundred thousand ($300,000) dollars. In reliance on the appraisal, Sadtler and Martinez purchased the tract on April 7, 1982, for a consideration of ninety-two thousand, one hundred fifty ($92,150) dollars.

The appraiser’s opinion of value was based on the assumption that the land was zoned R-3, a zoning classification which permitted detached and semi-detached dwellings. In fact, however, the land was zoned R-2, which permitted only semi-detached dwellings. The appraisal also contained an opinion that the most economically feasible development of the tract would be to install a 947 foot long roadway which ended in a cul-de-sac. This, it was estimated, would permit laying out twenty-four (24) lots to front on the roadway. In fact, a local ordinance permitted only a five hundred foot road which ended in a cul-de-sac, thus reducing the number of lots into which the larger tract could be subdivided. The tract was ultimately sold by Sadtler and Martinez for one hundred sixty-two thousand ($162,000) dollars on December 31, 1986.

The present action was filed on February 21, 1986. The complaint contained averments that the appraisal had been prepared negligently and that the opinion of value had been premised on erroneous information which the appraiser had gathered. As a result, the plaintiffs contended, they sustained a “loss of bargain” because the land had not been as represented by the appraiser. During discovery, it was ascertained that plaintiffs had become aware of the zoning error by December 31, 1982. According to appellants, however, the remaining error had not become known until plaintiffs attempted to resell the land.

The defendants moved for summary judgment, contending that the action was barred by the applicable statute of limitations. The trial court agreed. It held that the action was an action for negligence, which was barred by the lapse of more than two years following the discovery of error on December 31, 1982. The plaintiffs appealed. They contend that the applicable period of limitation is four years and that it did not begin to run until the error had been discovered.

The law governing summary judgment is well settled. Summary judgment may properly be entered only if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). The moving party has the burden of persuading the court that no genuine issues exist as to the material facts. Summary judgment may be entered only where the case is free from doubt. Hower v. Whitmak Associates, 371 Pa.Super. 443, 445, 538 A.2d 524, 525 (1988), allocatur denied, 522 Pa. 584, 559 A.2d 527 (1989). In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the nonmoving party. Any doubt must be resolved against the moving party. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930 (1984); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).

Laventhol & Horwath v. Dependable Ins. Associates, Inc., 396 Pa.Super. 553, 558, 579 A.2d 388, 390 (1990).

The statute of limitations applicable to the instant action is found in the judicial Code at either 42 Pa.C.S. § 5524(7) or 42 Pa.C.S. § 5525(3). Section 5524(7) has application to tortious conduct and provides as follows:

“[a]ny other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation period specified in this subchapter.”

Section 5525(3), on the other hand, establishes a four year limitation for an “action upon an express contract not founded upon an instrument in writing.”

The averments of the complaint and the discovery depositions enable us to determine that the plaintiffs hired the defendants to make an appraisal of real estate and that the appraisal was made negligently, was based on erroneous information and was inaccurate.

“Generally, when the breach of a contractual relationship is expressed in terms of tortious conduct, the cause of action is properly brought in assumpsit and not in trespass.” Raab v. Keystone Ins. Co., 271 Pa.Super. 185, 187, 412 A.2d 638, 639 (1979). Although some jurisdictions recognize a cause of action in either tort or contract for a negligently made appraisal, most jurisdictions require privity of contract before recovery will be allowed. See: George v. Federal Land Bank of Jackson, 501 So.2d 432 (Ala.1986) (claim for negligent appraisal fails absent contract with either express or implied duty imposed on appraiser); Foggy v. Ralph F. Clark & Associates, Inc., 192 Cal.App.3d 1204, 238 Cal.Rptr. 130 (1987) (lender has no cause of action for negligent appraisal on contract between real estate appraiser and loan applicant); Christiansen v. Roddy, 186 Cal.App.3d 780, 231 Cal.Rptr. 72 (1986) (real estate appraiser not liable to lender for negligent appraisal absent privity of contract where appraiser hired by borrower); Gay v. Broder, 109 Cal.App.3d 66, 167 Cal.Rptr. 123 (1980) (action against appraiser alleging breach of contract and negligence dismissed because appraiser owed no duty to veteran where appraiser hired by Veterans Administration); Baker v. Surman, 361 N.W.2d 108 (Minn.App.1985) (appraiser hired by Federal Housing Administration owes duty of care to F.H.A., not to purchasing mortgagor and cannot be held liable to mortgagor for negligent appraisal); Stotlar v. Hester, 92 N.M. 26, 582 P.2d 403 (1978) (real estate purchaser’s action against appraiser for breach of contract and negligence failed because no privity where appraiser hired by vendor); Oncology Associates v. McGraw-Hill Corp., 109 A.D.2d 616, 486 N.Y.S.2d 181 (1985) (action for negligent appraisal based on breach of agreement to accurately determine value where such determination was negligently performed); Struna v. Wolf, 126 Misc.2d 1031, 484 N.Y.S.2d 392 (1985) (action alleging breach of contract for negligent appraisal of artwork dismissed where no evidence of contractual relationship). But see: Costa v. Neimon, 123 Wis.2d 410, 366 N.W.2d 896 (App.1985) (purchaser permitted to recover from appraiser for negligent appraisal even though appraiser hired by lender because purchaser was foreseeable plaintiff).

Analogous issues have arisen in actions for damages against title abstractérs. In such cases it has been held generally that the actions are founded on contract. See: J.H. Trisdale v. Shasta County Title Co., 146 Cal.App.2d 831, 304 P.2d 832 (1956) (abstracter’s obligation in preparing abstract of title is contractual and liability will result on theory of breach of contract for damages resulting from negligence in performance of title report); Bridgeport Airport, Inc. v. Title Guaranty & Trust Co., 111 Conn. 537, 150 A. 509 (1930) (action against title examiner for negligent breach of duty in examining title lies in contract); Sickler v. Indian River Abstract & Guaranty Co., 142 Fla. 528, 195 So. 195 (1940) (action against abstracter must be founded on contract); Russell & Co. v. Polk County Abstract Co., 87 Iowa 233, 54 N.W. 212 (1893) (allegations in complaint that errors were negligence of abstracter do not convert the action from one founded on contract to one in tort since duty was created solely by contract); Thomas v. Guarantee Title & Trust Co., 81 Ohio St. 432, 91 N.E. 183 (1910) (action against abstracter of title to recover damages for negligence does not sound in tort, but must be founded on contract); Peterson v. Gales, 191 Wis. 137, 210 N.W. 407 (1926) (abstracter’s liability based on contract and no liability attaches for negligent performance absent privity of contract); 1 Am.Jur.2d Abstracts of Title § 23 (action against abstracter for damages resulting from negligence in making abstract of title does not sound in tort but must be founded on contract).

Similarly, the courts have held that actions against accountants for professional negligence are generally based on contract. See: East Grand Forks v. Steele, 121 Minn. 296, 141 N.W. 181 (1913) (action for damages arising from negligence of accountant employed to audit certain accounts founded on breach of contract); Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931) (action for negligent misrepresentation by accountant, duty created by contract); 1 Am.Jur.2d Accountants § 15 (action to recover damages arising from negligence of certified public accountant founded on breach of contract, and not on tort).

The real estate appraiser in the instant case owed to the plaintiff no duties except those imposed by the agreement to make an appraisal. The failure to make a competent and accurate appraisal, therefore, was a violation of a duty imposed by the contract between the parties and was not based upon separate principles of tort law. The appraiser’s negligent failure to perform according to the terms of the contract, if such was the case, constituted a breach of contract. We conclude, therefore, that appellants’ cause of action sounds in contract and must be governed by the statute of limitations applicable to contract actions.

Generally, an action founded on a contract accrues when the contract is breached. Cucchi v. Rollins Protective Services, Co., 377 Pa.Super 9, 546 A.2d 1131 (1988), rev’d on other grounds, 524 Pa. 514, 574 A.2d 565 (1990). Nevertheless,

[a]s applied in Pennsylvania, the equitable discovery rule provides that the statute of limitations does not begin to run until the injured party is aware or reasonably should be aware of his injury or its cause. Pocono Raceway v. Pocono Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983). However, it is well settled that mere mistake, misunderstanding or lack of knowledge do not toll the statute of limitations. Walters v. Ditzler, 424 Pa. 445, 449, 227 A.2d 833, 835 (1967).

Garcia v. Community Legal Services Corp., 362 Pa.Super. 484, 495, 524 A.2d 980, 985 (1987), appeal denied, 517 Pa. 623, 538 A.2d 876 (1988). This discovery rule has been applied in cases of medical malpractice, see: Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); in cases of legal malpractice, Garcia v. Community Legal Services Corp., supra; in cases of injuries or death resulting from exposure to asbestos, Mihalcik v. Celotex Corp., 354 Pa.Super. 163, 511 A.2d 239 (1986); in cases of latent architectural defects, Med-Mar, Inc. v. Dilworth, 214 Pa.Super. 402, 257 A.2d 910 (1969); and in cases of undiscovered title defects, Skyline Builders, Inc. v. Kellar, 50 Pa.D. & C.2d 19 (Leh.1970). Thus, “where knowledge is impossible because of the laws of nature, or because of ... concealment ... or where it is impractical to impose on one who has been wronged the duty to explore and ferret out the undetectable act of the wrongdoer, the statute should begin to run from the time discovery of the injury is made or should have been made.” Med-Mar, Inc. v. Dilworth, supra, 214 Pa.Super. at 407, 257 A.2d at 913.

The same principle is applicable where a party has been wronged by misleading information submitted by a real estate appraiser. To impose upon the injured party an affirmative duty to ferret out the appraiser's mistakes may, in some cases, require the injured person to employ a second appraiser to review the report of the first appraiser, for a lay person cannot be expected to possess the knowledge and expertise of the appraiser. See: Skyline Build ers, Inc. v. Kellar, supra (lay person reasonably cannot be expected to discover error in title report).

The point of time at which the injured party should reasonably be aware that he or she has suffered an injury is generally an issue of fact to be determined by the jury. See: Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985). Cf. Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959). Only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitation period be determined as a matter of law. See: Trice v. Mozenter, 356 Pa.Super. 510, 515 A.2d 10 (1986); Burnside v. Abbott Laboratories, supra; Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 425 A.2d 428 (1980), rev’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981).

In the instant action, the discovery depositions are to the effect that appellants did not discover the zoning error in the appraisal until December 31, 1982, and the erroneous basis for determining the manner of subdividing the land did not manifest itself until a later date. Whether this was reasonable is an issue of fact for the jury. We are constrained to conclude, therefore, that the trial court erred when it concluded that, as a matter of law, appellants’ cause of action was barred by the statute of limitations.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . A fee of five hundred ($500) dollars was paid for the appraisal.

      . The amount of damages, if any, which appellants may recover on the basis of the facts alleged is not now before this Court, and with respect thereto we express no opinion.

      . This section was the result of an amendment enacted December 20, 1982. It was made effective sixty (60) days after enactment. It is applicable, therefore, to causes of action not barred on February 18, 1983.


author: OLSZEWSKI, Judge: DEL SOLE, Judge,

text:
    587 A.2d 732
    COMMONWEALTH of Pennsylvania v. Larry McFARLIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1990.
    Filed March 7, 1991.

      Vincent J. Quinn, Chief Public Defender, Lancaster, for appellant.
    Brian E. Chudzik, Asst. Dist. Atty., Lancaster, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, BECK and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This appeal challenging the discretionary aspects of appellant’s sentence requires us to determine whether 42 Pa.C.S.A. § 9781(b) violates the right of appeal guaranteed by Article V, Section 9 of the Pennsylvania Constitution. We have reviewed appellant’s Rule 2119(f) statement and find that it does not raise a substantial question as to the appropriateness of the sentence imposed. Further, we hold that § 9781(b) is a reasonable regulation upon the right to appeal, and so does not violate the Pennsylvania Constitution. We affirm judgment of sentence.

Over a two-month period, Larry McFarlin wrote seventy-five checks to various merchants. Unfortunately, the account upon which the checks were drawn had been closed; McFarlin was aware of this when he wrote the checks. McFarlin pled guilty to seventy-five counts of theft by deception and two counts of conspiracy to commit theft by deception. Following a guilty plea to all counts and a pre-sentence investigation, McFarlin was sentenced to a period of incarceration of one and one-half to five years. McFarlin was also sentenced to consecutive and concurrent probation periods totaling seventeen years, subjecting him to supervision for up to twenty-two years. McFarlin was fined $500.00 and ordered to pay restitution in the amount of $8,058.70. A motion to modify sentence was filed and dismissed; this timely appeal followed.

McFarlin’s appeal contains a Rule 2119(f) statement as well as asserting that we should consider his challenge to the discretionary aspects of his sentence should we find that the statement does not present a substantial question as to the appropriateness of the sentence imposed. It is well settled that constitutional questions will not be addressed unless absolutely necessary. Krenzelak v. Krenzelak, 503 Pa. 373, 381, 469 A.2d 987, 991 (1983) (citation omitted). Accordingly, we will first examine the sufficiency of McFarlin’s Rule 2119(f) statement.

McFarlin’s statement enumerates the numbers of counts to which he pled guilty and categorizes those counts as twenty-two first-degree misdemeanors, forty-two second-degree misdemeanors and five third-degree misdemeanors. The statement also lists the incarceration and probation to which McFarlin was sentenced. McFarlin claims the sentence imposed is not appropriate under the Sentencing Code (42 Pa.C.S.A. § 9701 et seq.) as it is manifestly excessive. McFarlin notes that all of his crimes were misdemeanors; his prior criminal record is one incident involving aggravated assault and terroristic threats; and the total supervision imposed is more than four times greater than the maximum sentence which could have been imposed for any single one of the offenses to which he pled guilty. McFarlin also asserts that the offenses committed were the product of his drug and alcohol abuse. (Appellant’s brief, page 12.)

The determination of whether a Rule 2119(f) statement raises a substantial question must be made on a case-by-case basis. Commonwealth v. Losch, 369 Pa.Super. 192, 201, n. 7, 535 A.2d 115, 119, n. 1 (1987) (citations omitted). This Court will be inclined to examine the discretionary aspects of an appellant’s sentence where the statement “advances a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code, or 2) contrary to the fundamental norms which underlie the sentencing process.” Id. (citations omitted).

McFarlin has not advanced a colorable argument that the sentence imposed violates any specific provision of the Sentencing Code; in fact, McFarlin makes no mention of any specific provision of the Code. Nor has McFarlin specified any deviation from the fundamental norms underlying the sentencing process as outlined in 42 Pa.C.S.A. § 9721(b). McFarlin’s arguments that his crimes were relatively minor, that his prior criminal record is insignificant, and that his dependency induced his crimes, without more, do not raise a substantial question. Commonwealth v. Hall, 382 Pa.Super. 6, 16-17, 554 A.2d 919, 924 (1989) alloc. denied, 525 Pa. 577, 575 A.2d 109 (1990). Accordingly, having determined that McFarlin’s Rule 2119(f) statement is insufficient under § 9781(b), we examine the constitutionality of that section.

Certain principles apply to any challenge to the constitutionality of a statute. An act of the General Assembly carries a strong presumption of constitutionality; a party seeking to rebut that presumption bears a heavy burden of persuasion. Consumer Party v. Commonwealth, 510 Pa. 158, 175-76, 507 A.2d 323, 331-32 (1986) (citations omitted). See also, 1 Pa.C.S.A. § 1922(3). “Legislation will not be invalidated unless it clearly, palpably, and plainly violates the Constitution, and any doubts are to be resolved in favor of a finding of constitutionality.” Id., (quoting, Pennsylvania Liquor Control Board v. The Spa Athletic Club, 506 Pa. 364, 370, 485 A.2d 732, 735 (1984)). When reviewing a statute, a court must exercise every reasonable effort to uphold its provisions. Tracy v. Chester County Tax Claim Bureau, 507 Pa. 288, 296, n. 2, 489 A.2d 1334, 1339, n. 2 (1985). With these precepts in mind, we consider McFarlin’s claim.

The Pennsylvania Constitution guarantees a right of appeal from a court of record:

There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court as to be provided by law; and there shall be such other rights of appeal as may be provided by law.

PA. CONST, art. V, § 9. The Judicial Code provides the procedure for exercising this right when the issue on appeal is the discretionary aspects of the sentence imposed following criminal proceedings:

The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or misdemeanor to the appellate court that has jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

42 Pa.C.S.A. § 9781(b). Focusing on the phrases “allowance of appeal” and “granted at the discretion of the appellate court,” McFarlin argues that this section, in effect, renders this type of appeal discretionary in violation of the constitutional right to appeal. We do not agree.

We recognize that this right has been construed as absolute. Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980). We are also aware that § 9781(b) has been construed as a limitation upon that right. Commonwealth v. Jones, 523 Pa. 138, 142-43, 565 A.2d 732, 734 (1989); Commonwealth v. Tuladziecki, 513 Pa. 508, 513, 522 A.2d 17, 19-20 (1987). Nonetheless, the existence of an absolute right to appeal does not, in and of itself, render all limitations governing the exercise of that right unconstitutional. It has long been the law that both the legislature and the courts have the authority to enact reasonable regulations controlling the exercise of the constitutional right of appeal. Sayres v. Commonwealth, 88 Pa. 291, 306-08 (1879). All regulations are, to some extent, limitations. If the limitation imposed by § 9781(b) is a reasonable control of the exercise of the right to appeal, it is constitutionally valid.

We hold today that § 9781(b) is a reasonable regulation of the right to appeal. The section only applies where an accused appeals the discretionary aspects of his sentence; it imposes no burden on an accused asserting other errors by the trial court. The discretionary aspects of a sentence are normally left undisturbed on appeal as the trial court is in a more advantageous position to weigh the factors appropriate to determining sentence. Commonwealth v. Martin, 466 Pa. 118, 131, 351 A.2d 650, 657 (1976). Only if the trial court manifestly abuses its discretion will the sentence be disturbed. Commonwealth v. Plank, 498 Pa. 144, 145, 445 A.2d 491, 492 (1982) (citation omitted). Abuse of discretion consists of overlooking pertinent facts, disregarding the force of the evidence, committing an error of law, or imposing a sentence which exceeds the statutory maximum. Commonwealth v. Townsend, 497 Pa. 604, 606-07, 443 A.2d 1139, 1140 (1982) (quoting, Common wealth v. Edrington, 490 Pa. 251, 255-56, 416 A.2d 455, 457 (1980)). In effect, § 9781(b) merely requires an accused to indicate how the trial court possibly abused its discretion before the appellate court will consider the merits of his contentions as to the discretionary aspects of his sentence.

Unless a trial court has abused its discretion, the discretionary aspects of a sentence will remain undisturbed on appeal. If an accused can point to a possible abuse by the trial court, a substantial question exists entitling him to review. Absent such an abuse by the trial court, the defendant’s appeal is meritless. Section 9781(b) acts as a threshold burden which a defendant must meet. Commonwealth v. Chilcote, 396 Pa.Super. 106, 120, 578 A.2d 429, 436 (1990). Adoption of McFarlin’s contention would inundate the appellate courts; criminal defendants would automatically appeal the discretionary aspects of every sentence imposed. This Court would be required to consider the merits of every such challenge no matter how obviously meritless.

Nor are we persuaded by the dissent’s claim that the practical application of the substantial question requirement has led to dubious standards and inconsistent results. It is a given that evaluation of what constitutes a substantial question is performed on a case-by-case basis. Losch, supra 369 Pa.Super. at 201 n. 7, 535 A.2d at 119 n. 7; Commonwealth v. Semuta, 386 Pa.Super. 254, 260, 562 A.2d 894, 897 (citation omitted) alloc. denied, 524 Pa. 596, 568 A.2d 1246 (1989). It is unavoidable that any rule calling for an evaluation on a case-by-case basis will result in close decisions where the opposite conclusion could be justified. That does not make the standard dubious, nor the results inconsistent.

We recognize that McFarlin’s position has some logical appeal. This Court, however, is obligated to pursue every possible avenue to validate a statutory provision due to the heavy presumption of constitutionality which attaches to such provisions. We cannot say that the operation of § 9781(b) clearly, plainly and palpably violates the constitution, despite the phrases “allowance of appeal” and “granted at the discretion of the court” which it contains. Therefore, we hold that 42 Pa.C.S.A. § 9781(b) is a reasonable regulation of the exercise of the right to appeal; as such, it does not violate Article V, Section 9, of the Pennsylvania Constitution.

Petition for allowance of appeal denied; judgment of sentence affirmed.

DEL SOLE, J., files a dissenting opinion in which WIEAND and BECK, JJ., join.

McEWEN, J., concurs in the result.

DEL SOLE, Judge,

dissenting:

Because my review of the constitutional question raised by Appellant demands the conclusion that Section 9781(b) of the Sentencing Code, 42 Pa.C.S.A., contravenes the right of appeal guaranteed by Article V, Section 9 of the Pennsylvania Constitution, I am compelled to write this dissent.

Article V, Section 9 of the Pennsylvania Constitution, provides.

§ 9 Right of appeal

There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.

In construing this provision the Supreme Court of Pennsylvania has stated that, “an accused has an absolute right to appeal.” Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477, 479 (1980).

Section 9781(b), which allows for the “grant” of an allowance of appeal at the appellate court’s discretion where a substantial question exists concerning the appropriateness of the sentence which was imposed, curtails a defendant’s absolute right to appeal. As our supreme court recognized in Commonwealth v. Jones, 523 Pa. 138, 142-143, 565 A.2d 732, 734 (1989), “Section 9781(b) provides the defendant or the Commonwealth with only a limited appeal in an attack upon the discretionary aspects of a legal sentence____” It has also been noted that in accordance with Section 9781(b) “[t]he appearance of a substantial question determines whether this court may grant allowance of appeal of the discretionary aspects of sentence, while the sound discretion of the court determines whether the court will grant review.” Commonwealth v. McLaughlin, 393 Pa.Super. 277, 292, 574 A.2d 610, 618 (1990). The limitation this section plays upon a defendant’s appellate rights was noted in Commonwealth v. Tuladziecki, supra. Commenting on this court’s prior practice of reviewing the argument on the merits of a sentencing issue without making a prior determination of whether a substantial question was raised so as to “allow the appeal,” the court stated: “If this determination is not made prior to examination of and ruling on the merits of the issue of the appropriateness of the sentence, the [Appellant] has in effect obtained an appeal as of right from the discretionary aspects of sentencing.” Tuladziecki, supra., 513 Pa. at 513, 522 A.2d at 19-20.

An appeal as of right is, however, what our constitution guarantees. The Pennsylvania Constitution provides an accused such as Appellant with a right to appeal even if the only matter sought to be reviewed is the discretionary aspects of the defendant’s sentence. The Constitution does not limit this right, therefore, it cannot be limited by any provision of the Sentencing Code.

The Majority concedes that the right to appeal has been construed as absolute, and it suggests that Section 9781(b) acts only as a constitutionally valid limitation on that right. (Majority opinion at 735.) Although it has been stated that “this constitutional right to appellate review is a personal right which may be relinquished only through a knowing, voluntary and intelligent waiver,” Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984), Section 9781(b) does not concern waiver by an appellant. The constitution provides a defendant in a criminal proceeding with a right to have all matters reviewed which have been properly preserved at the trial court level. Commonwealth v. Barnes, 388 Pa.Super. 327, 333, 565 A.2d 777, 780 (1989) (Del Sole, J., concurring). Unlike established rules concerning the methods and manner for perfecting an appeal which a defendant can chose to obey or ignore jeopardizing his or her appellate rights, Section 9781(b) grants the appellate court the authority to determine whether a particular sentencing matter is worthy of an appeal regardless of the action or inaction taken by the defendant. A defendant who deliberately chooses to bypass the orderly procedures for challenging the court’s judgment which are afforded to a person convicted of a crime, and thereby fails to properly preserve a matter for appeal, will have voluntarily relinquished or waived the right to appeal. Nevertheless, it remains the appellant’s choice whether to relinquish or waive that right. Section 9781(b) acts as a barrier preventing appellants from exercising that right. Instead it places upon the appellate court the ability to accept or reject an appeal which is timely filed raising issues concerning sen-tenting which have been properly preserved at both the trial and appellate levels.

The superior court’s decision to dismiss such an appeal leaves an appellant without recourse. An appeal to the supreme court from such a decision is not allowed, leaving the superior court’s decision unchecked. This limitation on review is set forth in 42 Pa.C.S.A. § 9781(f). It provides:

Limitation on additional appellate review.—No appeal of the discretionary aspects of the sentence shall be permitted beyond the appellate court that has initial jurisdiction for such appeals.

42 Pa.C.S.A. § 9781(f)

Accordingly, the superior court’s discretionary decision to disallow an appeal can not be reviewed, and an abuse of that discretion cannot be remedied.

' The removal of the “right” to ensure that a defendant’s sentence is reviewable is particularly disturbing when one examines the decisions of this court which have determined whether to allow an appeal. Widely divergent and inconsistent views of what constitutes a substantial question have arisen resulting in nonuniform treatment of a defendant’s ability to appeal a sentencing matter. See Commonwealth v. Ziegler, 379 Pa.Super. 515, 550 A.2d 567 (1988) (appellant must include in his Rule 2119(f) statement the crime for which he was convicted); Commonwealth v. Cummings, 368 Pa.Super. 341, 534 A.2d 114 (1987) (an appellant must include in his Rule 2119(f) statement the crime for which he was convicted and the length of the sentence imposed in order to warrant our review of the discretionary aspects of sentencing). Also compare Commonwealth v. Ousley, 392 Pa.Super. 549, 573 A.2d 599 (1990) (claim that sentence exceeded guideline recommended aggravated sentence did not raise a substantial question) with Commonwealth v. Burdge, 386 Pa.Super. 194, 562 A.2d 864 (1989) (claim that sentence considerably exceeded recommended aggravated sentence raised a substantial question). As an examination of the caselaw will indicate the practical application of the requirements of Section 9781(b) and Pa.R.App.P. 2119(f) has led to the creation of dubious standards, and allowed for inconsistent results. It also has unnecessarily burdened this court as noted by Judge Popovich in his Concurring Opinion in Commonwealth v. Chilcote, 396 Pa.Super. 106, 578 A.2d 429 (1990):

I am ... convinced that the compliance with the requirements of ... [Rule 2119(f) ] ... wastes valuable judicial resources by adding an additional tier to our analysis of a defendant’s attack on the discretionary aspects of his sentence, (footnote omitted)

396 Pa.Super. at 131, 578 A.2d at 441.

To uphold the validity of this provision of the Sentencing Code and disregard the mandates of our Constitution will complicate the appellate process and, more importantly, potentially provide unfair treatment to those seeking review of their sentences.

The constitution guarantee of review is particularly vital with regard to sentencing matters.

A defendant’s ability to have his or her sentence reviewed by an appellate court operates as a necessary check to ensure that an appropriate punishment has been issued.

Barnes, supra, 388 Pa.Superior Ct. 333, 565 A.2d at 780. (Del Sole, J. concurring).

Pennsylvania’s procedure of indeterminate sentencing, “necessitates the granting of broad discretion to the trial judge, who must determine, among the sentencing alternatives and the range of permissible penalties, the proper sentence to be imposed.” Commonwealth v. Martin, 466 Pa. 118, 130, 351 A.2d 650 (1976). The Supreme Court of Pennsylvania has stated that the importance of this discretionary power cannot be overemphasized, and has examined its role and its potential for abuse in Martin, supra. In this regard the supreme court has stated:

[M]any commentators argue that it is one of the most important, and most easily abused powers vested in the trial court today. In United States v. Waters, [citation omitted], Judge Wilkey, speaking for the court, stated:
What happens to an offender after conviction is the least understood, the most fraught with irrational discrepancies, and the most in need of improvement of any phase in our criminal justice system.
It is true that the sentence imposed is normally left undisturbed on appeal because the trial court is in a far better position to weigh the factors involved in such a determination. However, we have held that the court’s discretion must be exercised within certain procedural limits, including the consideration of sufficient and accurate information.

466 Pa. at 131-132, 351 A.2d at 657 (footnotes omitted.)

Thus, the important power held by those who impose a discretionary sentence is a pow"er which must be exercised within limits. As a check on those limits the citizens of this Commonwealth have been provided with the constitutional provision found in Article V, Section 9, which ensures that a defendant has a right to appeal. Section 9781(b) of the Sentencing Code eliminates that right, and instead gives the reviewing court the power to “grant” or “allow” appeal, in its discretion, when the discretionary aspects of a sentence are challenged.

Footnote four of the Majority Opinion clearly illustrates how the Majority misses the point of the argument in this case. The question is not whether trial courts will or will not abuse their discretion. We assume members of the bench of this Commonwealth will exercise their duty in accordance with the high standards for which they are known, however we must recognize that mistakes do occur and appellate courts exist to remedy such situations. The real issue is the legislative attempt to permit our court to exercise our discretion to limit review. This discretionary action, which is not subject to review, prohibits what our own constitution guarantees—the right to appeal.

The Commonwealth argues that the decision of the Supreme Court in Tuladziecki, supra, impliedly upheld the constitutionality of Section 9781(b). I do not agree; rather, that issue was never presented to the Court. The Petition for Allowance of Appeal before the supreme court raised two questions:

I. Did the Superior Court err in entertaining the Commonwealth’s appeal where the Commonwealth failed to demonstrate a substantial question concerning the propriety of the sentence imposed?
II. Did the Superior court err in reversing the Judgement of sentence of the Trial Court upon determining that the sentence imposed was unreasonable?

650 W.D. Allocatur Docket, 1985.

Allocatur was granted solely to determine these questions. At no time was the constitutionality of Section 9781(b) raised or considered: The supreme court has identified as a “well-settled principle” that it “should not decide a constitutional question unless absolutely required to do so.” Krenzelak v. Krenzelak, 503 Pa. 373, 381, 469 A.2d 987, 991 (1983). The constitutional question was not raised and not preserved for review in Tuladziecki and was not necessary to the court’s decision. Because constitutional questions are not to be anticipated, I have no hesitancy in rejecting the view that the issue has been decided by implication.

By my decision I would expressly overrule two prior decisions of this court, Commonwealth v. Smith, 394 Pa. Super. 164, 575 A.2d 150 (1990) and Commonwealth v. Chilcote, 396 Pa.Super. 106, 578 A.2d 429 (1990). In these cases the panels held that the limitation placed on appellate review of sentencing by Section 9781(b) is de minimis and that a threshold burden requiring this Court to exercise its discretion in deciding whether to review a discretionary sentencing question is constitutionally acceptable. As I have stated, I do not agree that this or any limitation placed on a person’s right to appeal can withstand analysis under Article V, Section 9. While I agree that a person may waive their right to appeal by their own action, I reject the concept that the right may be eliminated by statute. Instead I agree with our distinguished colleague, Judge Zoran Popovich, who stated in his concurring opinion in Chilcote, “§ 9781(b) violates the absolute right of a defendant to appeal his sentence.” Commonwealth v. Chilcote, supra 396 Pa.Super. at 130, 578 A.2d at 441.

Although I would hold that Section 9781(b) violates the Pennsylvania Constitution, and would therefore necessarily review Appellant’s claim, I would ultimately conclude, after a review of the record, that the trial court did not abuse its discretion in imposing sentence.

WIEAND and BECK, JJ., join.

McEWEN, J., concurs in the result.

      . The checking account had belonged to McFarlin and his wife. McFarlin’s wife was his co-conspirator.

      . The trial judge considered the sentencing guidelines promulgated pursuant to § 9721(b) before imposing sentence. (Trial court opinion at 4, N.T. 11/2/89 at 9.) McFarlin’s statement makes no mention of the sentencing guidelines.

      . We note in passing that, while not at issue here, the Pennsylvania Constitution itself provides for the promulgation of rules governing the practice, procedure, and conduct of courts so long as these rules do not abridge, enlarge, or modify the substantive rights of litigants. PA. CONST, art. V, § 10(c).

      . The dissent argues that the discretionary sentencing power is one of the most easily abused powers and, therefore, an appeal of every discretionary aspect of a sentence is required to insure that no such abuse occurs. (Dissent at 738-39.) While we do not agree that our trial court brethren are likely to engage in wholesale abuse of their powers, we must emphasize that the discretionary aspects of a sentence are just that: entrusted to the discretion of the trial judge. Reversal is indicated only where there has been a manifest abuse of discretion. Plank, supra. We fail to see how an examination of every discretionary sentence will curb the looming spectre of abuse the dissent fears. If a manifest abuse of discretion is present, substantial grounds exist. If not, an examination of the merits will not result in reversal. Examination of all discretionary sentence abuse claims will only result in more control of the trial courts if it is accompanied by a change in the standard of review.

      . It is also argued that compliance with § 9781(b) and Rule 2119(f) complicates the appellate process by adding an additional analytical , tier to an attack upon the discretionary aspects of a sentence. Chilcote, supra 396 Pa.Super. at 130-31, 578 A.2d at 441 (Popovich, J., concurring). We believe the opposite to be true. Rather than complicating the process, the threshold burden streamlines that process.


author: PER CURIAM:

text:
    587 A.2d 740
    COMMONWEALTH of Pennsylvania v. Linda M. McFADDEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1990.
    Filed March 8, 1991.

      Charles J. Porter, Pittsburgh, for appellant.
    Alphonse P. Lepore, Jr., Dist. Atty., Uniontown, for Com., appellee.
    Before McEWEN, DEL SOLE and CERCONE, JJ.
   OPINION

PER CURIAM:

This appeal has been taken from an order which dismissed, without a hearing, the third Post Conviction Relief petition filed by appellant. We are constrained to remand for an evidentiary hearing.

Appellant was found guilty by a jury, on November 19, 1986, of aggravated assault and recklessly endangering another, and was acquitted of charges of attempted homicide. Following the denial of post-trial motions, the court sentenced appellant on January 23, 1987, to a term of imprisonment of from eleven and one-half months to twenty-three months. Although the Commonwealth had filed a timely notice of intention to pursue the application of the mandatory minimum sentence provisions of 42 Pa.C.S. § 9712, the Commonwealth failed to appear at the sentencing hearing. Following the imposition of sentence, however, the Commonwealth filed a motion for reconsideration of sentence based upon the failure of the court to impose the mandatory minimum sentence. The trial court, in response to the Commonwealth’s motion, on February 2, 1987, vacated the sentence and imposed a new term of imprisonment of from five years to ten years imprisonment. The court denied, on February 12, 1987, the motion for reconsideration of sentence filed by appellant.

Trial counsel was replaced by private appellate counsel who initiated a direct appeal to this Court, raising therein a claim of ineffectiveness based upon the failure of trial counsel to (1) call medical experts at the nol prosse hearing and (2) interview and present witnesses who had allegedly overheard the victim say that he had lied to the investigating police officer and feared prosecution for perjury if he recanted his testimony. This Court rejected the claims of appellant and affirmed the judgment of sentence. Commonwealth v. McFadden, 377 Pa.Super. 654, 541 A.2d 1152 (1988).

Appellate counsel, however, while the direct appeal was pending, filed, on August 31, 1987, a PCHA petition which was dismissed, the same day, by the PCHA court due to violation of Pa.R.Crim.P. 1501. This same attorney filed a second PCHA petition on December 8, 1987, and asserted the same claim of ineffectiveness which was a part of the direct appeal then pending before the Superior Court. The PCHA court, after a hearing, dismissed the second petition on December 29, 1987, and an appeal to this Court from that ruling was dismissed on April 25, 1988, due to the failure of counsel to file a brief. The direct appeal from the judgment of sentence was subsequently rejected by order dated March 18, 1988.

Appellant obtained new private counsel who filed, on February 13, 1989, a petition under the Post Conviction Relief Act which alleged that all prior counsel had been ineffective for failing to raise the issues enumerated in the PCRA petition. The trial court dismissed the petition, on March 26, 1990, without a hearing on the basis that appellant was not entitled to relief since the claims had either been previously litigated or waived. This timely appeal followed.

Appellant contends:

The PCRA Court erred by denying appellant’s petition without conducting an evidentiary hearing.
All prior counsel were ineffective for failing to request a jury instruction concerning justification, self-defense, and/or accident and in failing to raise this issue on direct appeal and/or in the context of a post-conviction petition filed while appellant’s direct appeal was pending..
All prior counsel were ineffective in failing to present evidence and/or expert testimony and request a jury instruction concerning the battered woman syndrome and in failing to raise this issue on direct appeal and/or in a post-conviction petition filed while appellant’s direct appeal was pending.
All prior counsel were ineffective in failing to move for a mistrial based on prosecutorial misconduct and in failing to raise this issue on direct appeal and in failing to file a brief to the Superior Court on the appeal from the denial of the post-conviction hearing while appellant’s direct appeal was pending.

Our initial step is to determine whether appellant is eligible for relief under the Post Conviction Relief Act. The claims presented in the instant petition are cognizable under the PCRA since the failure to request an appropriate jury instruction on accident or self-defense in the circumstances of this case implicates the ‘truth determining process’, raising a question of whether an ‘innocent individual’ has been convicted. See: 42 Pa.C.S. §§ 9543(a)(2)(ii); 9543(a)(3)(h). Since the disposition of the direct appeal and the prior PCHA petitions did not involve the merits of the present claims, it cannot be dismissed on the basis of having been previously litigated under 42 Pa.C.S. § 9544(a)(2). Commonwealth v. Perlman, 392 Pa.Super. 1, 5, 572 A.2d 2, 4 (1990). Nor can the petition be dismissed on the basis of waiver since appellant’s failure to earlier raise this claim “is excusable under the PCRA in light of counsel’s alleged ineffectiveness, see id. § 9543(a)(2)(H), and because the claim involves ... the ‘truth-determining process’ ... and raises a question whether an ‘innocent individual’ has been convicted. See id. § 9543(a)(3)(H).” Commonwealth v. Perlman, supra, 392 Pa.Superior Ct. at 5, 572, A.2d at 4. In addition, we conclude that the claims of appellant, if established, present the “miscarriage of justice” required by our Supreme Court in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), when reviewing appeals from the denial of a serial post-conviction petition. Cf. Commonwealth v. Brimage, 398 Pa.Super. 134, 141, 580 A.2d 877, 880 (1990).

At trial and before this Court, the Commonwealth argued that a self-defense charge was inappropriate as inconsistent with the victim’s testimony that the shooting was accidental. However, this Court has recently reiterated that a self-defense charge is appropriate in cases involving accidental injury when “the circumstances of the case allow that the accidental injury or death occurred within the course of the actor defending himself.” Commonwealth v. Mayfield, 401 Pa.Super. 560, —, 585 A.2d 1069, 1074 (1991) (en banc).

Before the issue of self-defense may be submitted to a jury for consideration, a valid claim of self-defense must be made out as a matter of law, and this determination must be made by the trial judge. Such claim may consist of evidence from whatever source. “Such evidence may be adduced by the defendant as part of his case, or conceivably, may be found in the Commonwealth’s own case in chief or be elicited through cross-examination.” Commonwealth v. Rose, 457 Pa. 380 [390], 321 A.2d 880, 884 (similarly discussing the type of evidence necessary to place in issue a defense of intoxication). However, such evidence from whatever source must speak to three specific elements for a claim of self-defense to be placed in issue for a jury’s consideration.
Thus, as provided by statute and as interpreted through our case law, to establish the defense of self-defense it must be shown that a) the slayer was free from fault in provoking or continuing the difficulty which resulted in the slaying; b) that the slayer must have reasonably believed that he was in imminent danger of death or great bodily harm, and that there was a necessity to use such force in order to save himself therefrom; and c) the slayer did not violate any duty to retreat or to avoid the danger. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Cropper, supra [463 Pa. 529, 345 A.2d 645 (1975)].
Commonwealth v. Black, 474 Pa. 47 [53], 376 A.2d 627, 630 (1977). If there is any evidence from whatever source that will support these three elements then the decision as to whether the claim is a valid one is left to the jury and the jury must be charged properly thereon by the trial court.
* * * * * *
This is so even though the evidence of self-defense may appear to the trial court as not credible, for “it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced ... The fact finder is free to believe all, part, or none of the evidence.” Commonwealth v. Rose, 463 Pa. 264 [268], 344 A.2d 824, 826 (1975).

Commonwealth v. Mayfield, supra, 401 Pa.Super. at 563-566, 585 A.2d at 1070-1071.

The victim, appellant’s ex-husband, testified at trial that on the night of the shooting, while he was visiting appellant, she summoned him upstairs to her bedroom and shot him when he entered the room. Appellant testified that after she had separated from her husband and children, she began receiving threats and threatening telephone calls from unknown persons as well as from her ex-husband, the victim. Consequently, appellant borrowed a shotgun from a friend, loaded it and placed it in a corner of her bedroom. Appellant further testified as follows:

Q. What else happened?
A. He was hitting me and he grabbed ahold of the gun.
Q. What did you do?
A. I seen him grab ahold of the gun, and I grabbed ahold of it too to keep it from him because the gun was loaded.
Q. And then what happened?
A. We struggled over the gun.
Q. Who eventually got the gun?
A. He left go and I fell back with it.
Q. And what happened then?
A. The gun went off.
* * * * * *
Q. During the course of your marriage, Mrs. McFadden, did you have any trouble with John before?
A. Yes, I did.
Q. Did he ever beat you before this night?
[Prosecutor]: I’m going to object to this point. If he is going to tie it in, I am going to ask for an offer.
******
[An in chambers on the record offer of proof was made after which the court ruled as follows:]
THE COURT: Based upon her testimony relative to the shooting the Court is of the opinion that her mental state and her reasonableness in determining whether her life was in danger or not is totally irrelevant. This appears to be an accidental shooting and that the only defense thereto is your argument that she did not intend—
[Prosecutor]: She did not intend to shoot.
[Defense attorney]: Well, I respectfully disagree with that. I think that because of the circumstances that night there was a struggle; that she did in fact have a gun; that the gun went off; that there is a self-defense issue here because she believed that she was going to be raped and killed.
THE COURT: Exactly, but she has failed to state on the record that she shot this man to protect herself. She said that she shot him because she fell and the gun went off accidentally.

As the direct examination continued, appellant was asked to describe the manner in which she was holding the gun when she fell and whether she had her fingers on the trigger, when appellant stated, “I don’t know ... I don’t remember, ... my hands could have slipped.” On cross-examination, appellant testified:

I just was trying to get away, but when I seen John grab the gun, I grabbed at it too because I didn’t want John to get the gun. I knew the gun was loaded and I was afraid John was going to kill me, because he said that that night.

Appellant, who testified on redirect that the victim had beaten her in the past, consistently testified that she engaged in the struggle because she feared the victim would kill her. Appellant’s testimony further revealed that she had not provoked the encounter and had no opportunity or means to retreat. Thus, her testimony satisfied the three conditions precedent for submission of a self-defense claim to the jury except that she denied intentionally shooting the victim.

In Mayfield, this Court specifically addressed the propriety of a self-defense charge where a defendant asserts that he acted in the course of self-defense but denies actually causing the injury: “It is the specific denial of the use of deadly force for one’s own protection which precludes the claim of self-defense being put in issue”. Mayfield, supra, 401 Pa.Super. at 571, 585 A.2d at 1074. (emphasis added). The testimony of appellant did not “negate any element of self-defense” that would preclude the necessity to submit the issue to the jury on request of the defendant. See: Commonwealth v. Mayfield, supra, 401 Pa.Superior Ct. at 571, 585 A.2d at 1074. Moreover, the testimony of appellant that she feared for her life and did not remember where she pointed the gun, or whether her finger was on the trigger, if believed by the jury, would have justified a finding that appellant acted in self-defense. See e.g., Commonwealth v. Gonzales, 334 Pa.Super. 603, 607-608, 483 A.2d 902, 904 (1984). While the Commonwealth continues to argue that a self-defense charge was not required because appellant refused to admit that she had fired the weapon purposefully, the submission of a self-defense charge does not require such an admission. Commonwealth v. Gonzales, supra at 609, 483 A.2d at 905. See: Commonwealth v. Mayfield, supra, 401 Pa.Super. at 576-577, 585 A.2d at 1077. Thus we are obliged to conclude that appellant was entitled to a self-defense charge.

When a claim has arguable merit, and there has been no evidentiary hearing below to determine if there was a reasonable basis for counsel’s actions, then this Court will remand for an evidentiary hearing. Commonwealth v. Spotts, 341 Pa.Superior Ct. 31, 33, 491 A.2d 132, 134 (1985). If it is clear that the allegation of ineffectiveness of counsel lacks arguable merit, then an evidentiary hearing is unwarranted and the unfounded allegation will be rejected. Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

Commonwealth v. Shablin, 362 Pa.Super. 289, 292, 524 A.2d 511, 512 (1987).

Thus it clear that we conclude there is arguable merit to the claim that counsel was ineffective in failing to request such an instruction. We are, therefore, constrained to remand for an evidentiary hearing in order to provide a record for this Court to determine whether counsel had any reasonable basis for failing to request such an instruction. Commonwealth v. Shablin, supra, 362 Pa.Superior Ct. at 292-293, 524 A.2d at 513. See: e.g., Commonwealth v. Flanagan, 375 Pa.Super. 497, 503, 544 A.2d 1030, 1033 (1988).

Order vacated. Case remanded. Jurisdiction relinquished.

      . The Commonwealth initially sought to nol prosse the charges and presented, at a nol prosse hearing on August 6, 1986, the testimony of the victim as well as the written consent of the investigating police officer. The court, however, refused to enter a nol prosse and noted that the Commonwealth failed to produce at the hearing the prosecuting police officer and expert testimony to demonstrate the impact of the events upon the victim’s children.

      . Appellant, in the direct appeal, also asserted that the verdict was against the weight of the evidence and that the court had improperly vacated its original sentence.

      . Rule 1501. Initiation of Post-Conviction Collateral Proceedings
      A proceeding for post-conviction collateral relief shall be initiated by filing a motion and three (3) copies with the clerk of the court in which the defendant was convicted and sentenced. The motion shall be verified by the defendant.

      . The court had correctly determined that the claim that trial counsel failed to request a mistrial during the cross-examination of appellant had been previously litigated under the Act. 42 Pa.C.S. § 9544(a)(3).


author: HESTER, Judge:

text:
    587 A.2d 744
    Roslyn N. LONDO, Individually and as the Executrix of the Estate of Barnett D. Londo, Appellant, v. George McLAUGHLIN and Karr-Barth Associates (Two Cases).
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1991.
    Filed March 11, 1991.

      Mitchell A. Kramer, Philadelphia, for appellant.
    Frank A. Luchak, Philadelphia, for McLaughlin, appellee.
    Lawrence C. Norford, Philadelphia, for Karr-Barth, appellees.
    Before WIEAND, MONTEMURO and HESTER, JJ.
   HESTER, Judge:

Appellant, Roslyn N. Londo, individually and in her capacity as executrix of the estate of her deceased husband, Barnett D. Londo, instituted this action against George McLaughlin and Karr-Barth Associates, appellees. The issue presented is whether appellant pled sufficient facts in her complaint to establish that she suffered damages. The trial court held that appellant failed to establish that she suffered damages as a result of the tortious conduct set forth in the complaint. We reverse.

Appellant instituted this action on September 27, 1989, against McLaughlin, who was her deceased husband’s insurance agent, and Karr-Barth Associates, McLaughlin’s employer. Her complaint contains the following allegations. George McLaughlin was an agent of Karr-Barth Associates and sold life insurance policies on behalf of the Equitable Life Assurance Society of the United States (“Equitable”). On October 7, 1987, McLaughlin met with Barnett Londo, appellant’s husband, in order to sell him a life insurance policy.

Two paragraphs of the complaint must be reproduced to gain a clear understanding of the issue involved in this appeal. They state as follows:

11. At that time [October 7, 1987], plaintiff’s decedent already had a valid life insurance policy. Defendant McLaughlin informed plaintiff’s decedent that he could obtain the same coverage for a cheaper premium.
12. On or about October 7, 1987, an Application for Insurance ... for the purpose of purchasing a life insurance policy in the amount of $250,000.00 from the Equitable was prepared by McLaughlin and signed by Mr. Londo____

Complaint at 3 (emphasis added).

The complaint continues as follows. McLaughlin prepared the application for the Equitable policy, and Mr. Londo executed it. On question 14d, McLaughlin represented that Mr. Londo had not smoked within the past twelve months. McLaughlin had actual knowledge that Mr. Londo, in fact, smoked since the two were social friends and since Mr. Londo regularly smoked in front of McLaughlin.

The complaint further avers that Mr. Londo relied upon McLaughlin with respect to the transaction and that McLaughlin had a duty to inform Mr. Londo to respond truthfully to the application. The complaint also contains allegations that McLaughlin misstated the answer to the smoking question in order to defraud Mr. Londo by obtaining a commission from the sale of the Equitable insurance policy. Meanwhile, McLaughlin knew that the fraudulent answer regarding smoking would result in no coverage under the Equitable policy and also knew that reduction of premiums was Mr. Londo’s sole inducement to cancel the pre-existing, valid life insurance coverage.

After the application was completed, McLaughlin forwarded it to Equitable, which issued a policy with $250,000 in life insurance coverage to Mr. Londo. Mr. Londo died on January 8, 1988. When processing appellant’s claim for benefits under the policy, Equitable mailed appellant a questionnaire that included a question about whether Mr. Londo smoked. McLaughlin told appellant to answer the question dishonestly, but she refused and told the company that her husband had smoked. When it discovered that Mr. Londo smoked, Equitable offered to pay appellant $128,549, which is the amount of coverage that Equitable would have given Mr. Londo for the premium that he paid Equitable if it had been informed of the smoking history. Appellant accepted that reduced benefit.

The complaint sets forth four counts: 1) fraud and deceit; 2) breach of fiduciary duty; 3) a violation of the Pennsylvania Fair Trade and Business Practices Act; and 4) negligence. The pleadings with respect to damages are contained in paragraphs 34 and 41, and the first paragraph contains the following averment: that “As a direct and proximate result of defendant’s conduct, plaintiff sustained damages in the amount of $121,411.00, the difference between the benefit amount of the policy sold to Mr. Londo, and the benefit paid by the issuer, plus interest.” Complaint at 7. Similarly, in paragraph 41, appellant alleged damages “in an amount equal to $121,451.00 plus interest through the loss of the value of their insurance policy.” Id. at 8. All allegations regarding the facts and damages are incorporated at each count.

Appellees filed preliminary objections in the nature of a demurrer alleging, inter alia, that the facts do not show that plaintiff suffered a legally cognizable injury as a result of the tortious conduct. On March 16, 1990, the court dismissed all counts as to all defendants. The court noted that even though Equitable may have had the right to rescind Mr. Londo’s policy in its entirety, it offered appellant the option of accepting a reduced benefit equal to what Mr. Londo would have been entitled had the insurance company been notified of his smoking history. Trial court opinion, 7/23/90, at 2. The court therefore concluded that appellant did not suffer “any injury because she received precisely the same benefits she would have received had Mr. Londo truthfully revealed the fact that he smoked to the insurance company.” Id.

On appeal, appellant argues that she is not seeking the difference between the Equitable coverages. Instead, her claim is for the difference between the coverage provided in the pre-existing valid, but canceled policy and the amount received from Equitable. She notes that the complaint clearly sets forth that McLaughlin induced Mr. Londo to cancel the valid policy, from which she would have received $250,000. This inducement was made in order to collect commissions on the premiums from the Equitable policy, and McLaughlin obtained Mr. Londo’s consent to the cancelation of the first policy by promising reduced premiums from Equitable, which McLaughlin knew could be obtained only by falsifying the answer to the question about Mr. Londo’s smoking history.

Appellees’ counter argument is that the complaint never pleaded that Mr. Londo had a valid pre-existing policy on October 7, 1987, for $250,000. Appellees suggest that this “new” fact, raised only in the briefs, cannot be considered in assessing the legal sufficiency of the complaint. They also propose that the “complaint should be construed against [appellant] on this appeal.” Appellee’s (Karr-Barth Associates) brief at 9.

However, the complaint is not construed against appellant; to the contrary, the complaint is viewed in the light most favorable to appellant, and we reject appellees’ position that the complaint fails to set forth that Mr. Londo had valid, pre-existing life insurance coverage on October 7, 1987, for $250,000. Our scope of review of a challenge to an order sustaining a preliminary objection in the nature of a demurrer is well-settled:

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader’s right to relief. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading, a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Savitz v. Weinstein [395 Pa. 173, 149 A.2d 110 (1959); March v. Banus] 395 Pa. 629, 151 A.2d 612 (1959), and every inference fairly deducible from those facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Troop v. Franklin Savings Trust, 291 Pa. 18, 139 A. 492 (1927). The pleader's conclusions or averments of law are not considered to be admitted as true by a demurrer. Savitz v. Weinstein, supra.

Morehall Contracting Co. v. Brittany Estates Limited Partnership, 396 Pa.Super. 265, 267, 578 A.2d 508, 509 (1990), quoting Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 524-25, 543 A.2d 1092, 1093-94 (1988).

In the present case, we conclude that a reasonable inference to be drawn from the complaint is that the canceled policy had coverage in the amount of $250,000. In paragraph 11, appellant alleges quite clearly that McLaughlin promised to obtain the “same” coverage from Equitable that Mr. Londo had under his existing policy. In the very next paragraph, appellant states that the Equitable policy coverage was $250,000. Thus, it is a fair inference from reading this complaint that the canceled, pre-existing policy had coverage of $250,000.

Thus, the trial court’s error is in characterizing appellant’s claim solely as one relating to the Equitable insurance policy. Appellant’s claim is that she would have had $250,-000 in coverage under the policy that Mr. Londo canceled. Further, she claims this cancelation was made solely due to McLaughlin’s misrepresentations that he could get the same coverage from Equitable for less premiums. However, McLaughlin, according to the complaint, knew that he could obtain those reduced premiums from Equitable only by misrepresenting Mr. Londo’s smoking history.

We recently noted that the duty of good faith and fair dealing that applies to insurance companies also applies to insurance brokers. Banker v. Valley Forge Insurance Co., 401 Pa.Super. 367, 585 A.2d 504 (1991). In Banker, we described the duty of insurance companies and brokers as follows:

We have long recognized that: “the utmost fair dealing should characterize the transactions between an insurance company and the insured.” Fedas v. Insurance Company of the State of Pennsylvania, 300 Pa. 555, 151 A. 285 (1930).... The duty of an insurance company to deal with the insured fairly and in good faith includes the duty of full and complete disclosure as to all of the benefits and every coverage that is provided by the applicable policy or policies ...

Id., 401 Pa.Super. at 378-379, 585 A.2d at 510.

Thus, appellant is correct that there is a legal duty to inform an insured of the consequences of actions relating to insurance, which in this case would be the consequence of no coverage under the policy if the insurer discovered that Mr. Londo smoked. Further, the complaint does contain allegations that breach of the duty of full disclosure and fair dealing induced the cancelation of the valid policy for $250,000.

Appellees raise a number of other points in their briefs. First, Karr-Barth Associates request that we affirm the trial court based on the fact that appellant failed to set forth a legal cause of action based on fraud in that Mr. Londo’s reliance on McLaughlin’s misrepresentations could not have been “justifiable” when Mr. Londo signed the fraudulent form. However, we note that the trial court order dismissed all counts of the complaint and that appellees’ argument as to appellant’s failure to state a cause of action relates only to the count of fraud. Therefore, it would be impossible for us to affirm the order that dismissed four counts based on a failure of only one or two counts.

Further, appellant’s complaint was dismissed based on her alleged failure to plead damages. As she briefed only this issue on appeal, we do not have the benefit of her position as to others. Finally, the complaint does contain the elements of fraud in that it pleads that reliance was justifiable. Appellees' argument appears more in the nature of a summary judgment position than that of demurrer, where the moving party admits the factual allegations in the complaint.

For the same reasons, we do not find it appropriate to review whether appellant states a cause of -action under the Pennsylvania Fair Trade and Business Practices Act. The sole issue on appeal is whether appellant’s complaint contains sufficient allegations to plead damages. The trial court dismissed this action based on its perception that appellant failed to base her damages claim on the difference between the canceled policy and the amount from Equitable. It considered this action to be premised solely on the difference in the Equitable coverage and the fact that since appellant received what her husband purchased, she suffered no harm. However, irrespective of other defenses that may be available to appellees, it is clear that the complaint sufficiently sets forth damages. When read in the light most favorable to appellant and when all reasonable inferences from the complaint are drawn, it does state that the pre-existing coverage equalled $250,000 and that damages were incurred because McLaughlin’s actions resulted in appellant receiving less than she would have received under the canceled policy.

Appellees also have briefed extensively the issue of whether Equitable validly rescinded its $250,000 in coverage due to the fraud regarding Mr. Londo’s smoking history. We do not doubt that Equitable did have this right. However, appellant did not institute this action against Equitable, and McLaughlin does not stand in Equitable’s shoes.

We note that appellees have cited no case that supports the conclusion that as a matter of law, Mr. Londo’s actions in participating in the fraud against Equitable prevents recovery against appellees based on their fraud. Appellees’ cases discuss the liability of an insurance company which issued a fraudulently-obtained policy. However, McLaughlin is not Equitable, and Mr. Londo did not deceive him. The validity of Equitable’s cancelation is not the issue. Rather, the issue is whether McLaughlin is liable for fraudulently inducing cancelation of the $250,000 policy that Mr. Londo had on October 7, 1987, in order to obtain commissions from the Equitable premiums. According to the complaint, this inducement occurred even though McLaughlin knew that Mr. Londo would cancel only if he could obtain reduced premiums, knew that the lower premiums were available only to nonsmokers, and knew that Mr. Londo smoked.

Order reversed and case remanded. Jurisdiction relinquished.