author: CERCONE, Judge.

text:
    564 A.2d 246
    COMMONWEALTH of Pennsylvania v. James T. PARKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1989.
    Filed Sept. 29, 1989.

      Hugh A. Donaghue, Media, for appellant.
    Ann A. Osborne, Asst. Dist. Atty., Media, for Com.
    Before DEL SOLE, TAMILIA and CERCONE, JJ.
   CERCONE, Judge.

This appeal is from the judgment of sentence of the Court of Common Pleas of Delaware County. We affirm.

Appellant was charged, by private complaint, with theft by unlawful taking and theft by deception. The complaint alleged that complainant, Glenn Moyer, had loaned appellant fourteen thousand dollars ($14,000) with the understanding that the amount was to be repaid in four installments. Further, appellant had told complainant that he owned an automobile upon which a lien could be placed as security for the loan. The complainant alleged that after the money was transferred, he discovered that appellant did not own the vehicle, and that no lien could be placed on it. According to the complaint, appellant had also refused to repay the loan. The complaint was filed in Delaware County-

In July, 1988, appellant filed a motion to dismiss claiming lack of jurisdiction of the Court of Common Pleas of Delaware County because “any and all alleged events did not take place in the County of Delaware____” The motion was denied and the case proceeded to trial.

The jury returned a verdict of guilty of theft by deception. Appellant’s post-verdict motions were denied and he was sentenced to a term of three years probation. Appellant was also ordered to pay restitution in the amount of fourteen thousand dollars ($14,000) within a period of three months. After appellant moved to modify his sentence, the court ordered an extension of the time period in which appellant was to pay restitution, from three (3) to six (6) months. From the judgment of sentence, appellant filed the instant timely appeal.

Appellant makes the following contentions on appeal: (1) the verdict was not supported by the evidence and was against the weight of the evidence; (2) there was insufficient evidence that any transaction occurred in Delaware County; and (3) trial counsel was ineffective in failing to properly investigate and prepare a defense.

Appellant’s first contention is that the evidence was insufficient to support the verdict. In reviewing claims of sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine whether the jury could reasonably have found all of the elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa.Super. 134, 555 A.2d 818 (1989). Furthermore, 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 of 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). An appellate tribunal will not engage in a reevaluation of the testimony of witnesses found credible by the jury. Commonwealth v. Nelson, 337 Pa.Super. 292, 486 A.2d 1340 (1984).

The pertinent elements of the offense of theft by deception are defined, by statute, as follows:

A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;

18 Pa. C.S.A. § 3922(a)(1). Thus, in the instant case, there must be more in the evidence than appellant’s failure to repay fourteen thousand dollars ($14,000).

We have reviewed the record of testimony in the instant case, and accept the trial court’s analysis of the evidence:

In this case, the victim and the Defendant presented two conflicting accounts of their business dealings. The victim testified that he loaned Defendant $14,000 in cash in two installments of $7,000 each on two separate occasions a few days apart, the first occurring in Delaware County. The purpose of the loan was to finance Defendant’s new business and was to be secured by a brand new automobile already purchased. He further testified that after giving Defendant the money, he found that the business did not exist, and he could not locate Defendant to have the loan collateralized or to have Defendant repay the loan.
Defendant, on the other hand, testified that he only borrowed $6700 to finance a gambling expedition to Atlantic City. He denied borrowing $14,000 and said that there was only one transaction which occurred in Philadelphia.
Presented with these conflicting accounts, the jury clearly found more credible the victim’s testimony and accordingly found the Defendant guilty of theft by deception. Viewing the evidence in a light most favorable to the verdict winner, the Commonwealth established the elements of theft by deception beyond a reasonable doubt in that defendant created the false impression that he had already purchased an automobile in which Moyer could obtain a security interest as collateral for the loan. 18 Pa.C.S. § 3922. Further, he deceived the victim as to the reason for the loan, to purchase a particular business when the business did not exist. Id.

Appellant contends that, in order to constitute the offense of false pretenses, there must be a false representation of an existing fact, and that the Commonwealth has not offered proof of such in the instant case. He contends that a representation of an acquisition of a future business is not sufficient to establish a false pretense or impression even though a promisor did not intend to perform.

Appellant’s argument is meritless for two reasons. He forgets that the jury accepted the fact that he deceived the claimant when he stated he owned an automobile when in fact he did not. In addition, although existing law at the time of the enactment of section 3922 made it a crime to cheat by fraudulent pretenses, “[t]his section [3922] broadens existing law under which ‘false pretenses’ is limited to false representations of existing facts. Commonwealth v. Becker, 151 Pa.Superior Ct. 169 [30 A.2d 195] (1943).” Official Comment—1972, 18 Pa.C.S.A. § 3922. As the Court in Commonwealth v. Quartapella, 372 Pa.Super. 400, 539 A.2d 855 (1988) observed:

This statute [section 3922] rejects the traditional restriction that fraud must entail deception as to an existing fact. “This is accomplished ... by the unqualified definition of deception in subsection ... [ (a) ]: the deception may relate to the intention of any person, the opinion of the actor or a third person, the state of the law in any jurisdiction, or events of the past, present or future. Whatever means the actor selects as the effective ones to deceive will be included.” Toll, Pennsylvania Crimes Code Annotated § 3922____

Id., 372 Pa.Superior Ct. at 402-03, 539 A.2d at 856 (emphasis omitted).

Thus, it is clear that the current statute does not limit theft by deception to false representations of existing facts. The fact that appellant’s false representations related to a non-existent business entity does not take the case out of the parameters of section 3922.

Appellant contends, nevertheless, that the Commonwealth failed to prove that appellant had the requisite intent to defraud. Criminal intent may be established by either direct or circumstantial evidence. Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316 (1983). “[I]t may be inferred from acts or conduct or from the attendant circumstances.” Id., 313 Pa.Superior Ct. at 543, 460 A.2d at 321. There was evidence introduced in the instant case which was sufficient to prove an intent by appellant to defraud the complainant. That evidence included testimony that appellant prevailed upon the complainant to loan him money for a non-existent business or one with which appellant had no connection, that appellant had informed the complainant or led him to believe that he had purchased an automobile which could be used as collateral for the loan, that appellant subsequently refused to repay the victim, and that he failed to return the victim's phone calls or make himself available to transact the necessary procedures required to establish a security interest in the automobile. All of this testimony was evidence of an intent to defraud the victim. The jury accepted this testimony and it is not our function to re-evaluate the jury’s credibility determination. Commonwealth v. Jackson, supra; Commonwealth v. Nelson, supra. We are satisfied that the evidence in the instant case was sufficient to support the verdict of guilty of theft by deception.

Appellant also contends that the evidence was insufficient to support the jurisdiction of the Delaware County Court of Common Pleas in that no transaction took place in Delaware County. We disagree. Testimony was introduced at trial that two transactions occurred between appellant and the victim, one of which took place in Delaware County. Although contrary evidence was introduced by the defense, the jury apparently found that testimony less than credible. Again, as we stated previously, it is not our function to disturb the credibility determination of the finder of fact. Commonwealth v. Jackson, supra; Commonwealth v. Nelson, supra. Since evidence was adduced at trial which would support the jurisdiction of the Delaware County court, we hold that appellant’s claim regarding the sufficiency of the evidence to support the lower court’s exercise of jurisdiction is meritless.

Appellant alleges that the verdict was against the weight of the evidence. A new trial can be obtained on weight of the evidence grounds only when it appears from the record that the fact-finder’s verdict was so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70 (1987). “Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion.” Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984).

We have reviewed the record in the instant case and find no abuse of discretion by the lower court in denying appellant’s motion for a new trial. Evidence was introduced at trial from which the jury could properly have concluded that appellant had engaged in theft by deception, and that at least one of the transactions in the deceptive scheme occurred in Delaware County. Although some contrary evidence was presented by the defense, it was the jury’s prerogative to evaluate the evidence and make assessments of the witnesses’ credibility. We find nothing in the jury’s conclusions contrary to the evidence presented. Appellant is not entitled to a new trial on weight of the evidence grounds.

Appellant asserts on appeal that trial counsel was ineffective for failing to investigate the case and identify possible witnesses who could have provided testimony attacking the credibility of the complainant. There are three elements to a valid claim of ineffective assistance of counsel:

[w]e inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). Allegations of ineffectiveness of counsel must be pleaded with specificity. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Brown, 313 Pa.Super. 256, 459 A.2d 837 (1983). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984). The law presumes that counsel is effective and the burden of establishing ineffective assistance of counsel rests upon the appellant. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985).

A successful claim of ineffectiveness of counsel for failure to call or investigate possible witnesses must establish (1) the identity of the witnesses; (2) that counsel knew of their existence; (3) the material evidence that the witnesses would have provided; and (4) the manner in which the witnesses would have been helpful to his case. Commonwealth v. Polk, 347 Pa.Super. 265, 500 A.2d 825 (1985). Although an evidentiary hearing was held on appellant’s ineffectiveness claim, he failed to establish any of the requisite elements. As the lower court indicated:

5. Defendant failed to produce any evidence at his post-trial hearing to show the existence of witnesses who would have testified favorably on his behalf at trial.
8. Defendant failed to produce any facts at his post-trial hearing upon which the victim’s credibility could have been impeached at trial.

We have reviewed the transcript of the post-trial hearing and agree with the lower court’s conclusions. Similarly, appellant has not set forth in his appellate brief any specific allegations concerning any of the factors set forth in Commonwealth v. Polk, supra. Having failed to set forth such specific allegations, appellant’s claim must fail.

Appellant presents a vague claim that trial counsel was ineffective for failing to prepare a defense. He states in this regard that trial counsel did not properly interview the defendant or investigate the alleged victim. The lower court indicated in its findings following the post-trial hearing on appellant’s ineffectiveness claim that “[defendant failed to produce any facts or theories at his post-trial hearing to show that investigation of his case would have produced any evidence admissible at trial.” We agree.

Appellant’s claim that trial counsel was ineffective in failing to investigate the victim has no merit. A witness’s credibility may not be impeached by prior acts of misconduct which have not led to a conviction. Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973); Commonwealth v. Fuller, 336 Pa.Super. 507, 485 A.2d 1197 (1984). No such evidence was proffered by appellant at his post-conviction hearing, as the lower court pointed out. As to appellant’s claim that counsel was ineffective in failing to properly interview appellant, that allegation was found by the lower court to be incredible, following appellant’s post-conviction hearing. We are not able to discern any reason for disturbing this finding. Therefore, we reject appellant’s latter claim of counsel’s ineffectiveness.

Having found no merit to any of appellant’s arguments on appeal, we will affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3921(b).

      . Id. § 3922(a).


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    564 A.2d 251
    Mary Ellen WARD, Appellant, v. Lewis I. SERFAS, Patricia E. Serfas, Appellees
    Superior Court of Pennsylvania.
    Submitted July 24, 1989.
    Filed Sept. 25, 1989.

      Michael J. Dowd, Athens, for appellant.
    Richard D. Sheetz, Troy, for appellees.
    Before ROWLEY, OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

Mary Ellen Ward, appellant, appeals from the order entered March 7, 1989, which granted the preliminary objections of appellees and dismissed her complaint. We reverse and remand.

On March 12, 1988, appellant instituted this action against appellees, Lewis and Patricia Serías. The allegations set fourth in the complaint are as follows. On June 1, 1987, appellant entered into an agreement to purchase a nursing home from appellees. Prior to entering into the agreement, appellant had inspected the home for a brief period during which she alleges appellees carefully controlled the amount of time she was accorded to examine the property. That inspection failed to reveal various defects of which appellees had knowledge, and during the inspection, appellees made various misrepresentations about the condition of the property.

In count one, appellant alleges that appellees showed her the fireplace, and specifically represented that it was operational and that it had often been used by them. In fact, the chimney was blocked and the flue liner was defective, and appellees were aware of these defects at the time of the inspection. Appellees also actively concealed a burn mark in the living room floor by placing furniture over it.

In count two, appellant alleges that water damage to one of the rooms on the top floor of the nursing home was not revealed during the inspection. With respect to the water damage, she alleges that appellees told her that the roof needed to be repaired and that they were going to get it repaired. However, they did not reveal the water damage caused by the leaking roof to her. Appellant also avers that she did not see the water damage during her inspection since appellees hurried her through the inspection of the upstairs in order that the tenants would not be disturbed.

Count three relates to the sewage system in the home. Mr. Serías showed appellant an area which allegedly contained the sewage system, and he also told appellant, in response to her question, that the sewage line had been inspected and that it was in good working order except in two respects: it needed to be cleaned and required a new top. In truth, the sewer line has not been operable and has been discharging raw sewage on the neighbor’s property for a number of years.

In conclusion, appellant alleges that the misrepresentations made by appellees as set forth in the complaint were made for the purpose of defrauding appellant in order to induce her to purchase the property for a price in excess of its fair value. Further, she alleges that the fraudulent misrepresentations were made knowingly and willfully. She requests the costs of repairing the fireplace, the burned floor, the water damage to the second floor room, and repair of the sewage system.

Initially, we examine our standard of review. When preliminary objections in the nature of a demurrer are filed, we must accept as true all the well-pleaded material facts set forth in the complaint and all reasonable inferences deducible from those facts. Dercoli v. Pennsylvania National Mutual Insurance Co., 520 Pa. 471, 554 A.2d 906 (1989). Accepting these facts and inferences, we then determine whether the pleader has failed to state a claim for which relief may be granted, and we will affirm the grant of a demurrer only if there is certainty that no recovery is possible. Creeger Brick & Building Supply Inc. v. Mid-State Bank and Trust Co., 385 Pa.Super. 30, 560 A.2d 151 (1989). All doubts are resolved in favor of the pleader. Furthermore, by filing preliminary objections in the nature of a demurrer, appellees have admitted the factual allegations of the complaint for purposes of the demurrer. Id.

On May 19, 1988, appellees filed preliminary objections in the nature of a demurrer alleging that the sales agreement precluded the requested relief. The trial court granted appellees’ demurrer on the basis of the following inspeetion/integration clause contained in the June 1, 1987 agreement of sale:

It is understood that Buyer has inspected the property, or hereby waives the right to do so and has agreed to purchase it as a result of such inspection and not because of or in reliance upon any representation made by the Seller____
The Buyer has agreed to purchase it in its present condition unless otherwise specified herein. It is further understood that this agreement contains the whole agreement between the Seller and the Buyer and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this agreement shall not be altered, amended, changed or modified except in writing executed by the parties.

The trial court ruled that the alleged defects were not latent, but were reasonably discoverable upon inspection and that appellant could not rely upon parol evidence to contradict the clear and unambiguous language of the inspection/integration clause. Since the sales agreement clearly and unambiguously states that appellant has inspected the property, that appellant’s purchase is based on that inspection, and that appellees made no representations about the property, the trial court ruled that appellant could not vary the terms of the integrated agreement by parol evidence of the alleged misrepresentations contained in the complaint. Inasmuch as this result is incorrect under controlling precedent, we reverse and remand.

In Mancini v. Morrow, 312 Pa.Super. 192, 458 A.2d 580 (1983), we examined the ability of a buyer to prove oral representations regarding the condition of real estate when the buyer had signed an agreement of sale containing an identical inspection/integration clause. We held, notwithstanding the clause, that a buyer could recover for latent defects where the defects were not reasonably discoverable through an inspection of- the property and where the seller had actual knowledge of the latent defects and had either made affirmative representations as to the absence of the defect or had made efforts to hide the defect physically by placement of objects to conceal it. We held that evidence of fraud in inducement of a contract to buy real estate was not barred by the parol evidence rule under those circumstances.

In that case, the sellers concealed water damage to the basement by placing objects in front of the affected area. In this case, appellant alleges that appellees intentionally hid a burn mark' by placing furniture in front of it. Since there is no distinction between these allegations, Mancini is controlling as to appellant’s ability to recover for the burnt floor if she can establish her allegations at trial.

Appellant also alleges that the condition of the fireplace was not reasonably discoverable from her inspection and that appellees intentionally made an affirmative misrepresentation that it was operable. This also states a claim under Mancini.

Appellant’s allegations regarding the sewage system and water damage are controlled by our decision in LeDonne v. Kessler, 256 Pa.Super. 280, 389 A.2d 1123 (1978). There, the buyers contended that the sellers had falsely responded to specific questions regarding the condition of the property, including that the septic system was operable, the sun deck did not leak, and the cellar did not leak. The buyers also contended that they could not have discovered these defects through their visual inspections of the property. Despite the fact that there was an integration/inspection clause similar to the one at issue, we ruled that the verbal representations of the sellers about the condition of the septic system were admissible at trial since the condition of the system was not ascertainable by visual inspection. On the other hand, we determined that the parol evidence rule did prevent proof of the statements regarding the leakage of the sun deck and the cellar since the buyers’ statements indicated that there was evidence of water leakage visible during their inspection and they nonetheless signed the agreement. We reasoned that since the septic system was underground, the buyers could not have reason to know of seller’s misrepresentations concerning the adequacy of the system. Accordingly, we determined that the parol evidence rule did not bar admission of evidence of the sellers’ misrepresentations concerning the septic system. See also Berger v. Pittsburgh Auto Equipment Co., 387 Pa. 61, 127 A.2d 334 (1956) (where lessor warranted premises would be strong enough to support lessee’s auto parts and where lack of strength was not apparent from visual inspection, lessee could avoid lease despite existence of integration/inspection clause); Smith v. Renaut, 387 Pa.Super. 299, 564 A.2d 188 (1989).

The trial court ruled that appellant was estopped from relying upon appellees’ representations since the defects were not latent defects, but were reasonably discoverable upon inspection. The trial court’s conclusions are erroneous. The sewage system defect, by its nature and in accordance with our decision in LeDonne, was latent. Furthermore, our standard of review in the case of a demurrer is to accept as true all of the allegations in the complaint. Appellant alleges that the defects were intentionally concealed and were not discoverable by visual inspection. In addition, appellant specifically alleges that appellees hid the water damage resulting from the leaking roof by refusing her entrance to the damaged room on the ground that the tenant could not be disturbed.

We are permitted to grant a demurrer only if there is a certainty that no recovery is possible. It is the function of the trier of fact to determine whether these defects were reasonably discoverable through visual inspection; the trial court usurped this function by prematurely granting this demurrer based on its factual determination that the defects were not latent. The allegations in the complaint state a cause of action under Pennsylvania case law and grant of the demurrer was improper.

Order reversed and case remanded. Jurisdiction relinquished.


author: HESTER, Judge: KELLY, Judge,

text:
    564 A.2d 468
    In re J.S. Appeal of J.S., Philadelphia County Office of Mental Health and Retardation Services.
    Superior Court of Pennsylvania.
    Submitted Nov. 28, 1988.
    Filed July 10, 1989.
    Reargument Denied Sept. 15, 1989.
    Petition for Allowance of Appeal Granted Jan. 16, 1990.

      John Packel, Asst. Public Defender, Philadelphia, for appellant.
    Guy Vilim, City Sol., Philadelphia, Philadelphia County Office, participating party.
    Before KELLY, POPOVICH and HESTER, JJ.
   HESTER, Judge:

J.S. appeals from a July 15, 1988 commitment order wherein the trial court vacated a master’s decision to discharge her due to the fact that she had not received a court hearing required by the Mental Health Procedures Act of 1976, 50 P.S. §§ 7101 et seq. (the “Act”), following her commitment to Thomas Jefferson University Hospital. Appellant raises two contentions. First: The trial court’s July 15, 1988 order vacating the master’s order is void since it reversed an October 15, 1987 order in violation of 42 Pa.C.S. § 5505 (order may not be modified thirty days after entry). Second: The trial court erred in ruling that a patient who voluntarily commits himself for a period of seventy-two hours under section 206 of the Act can be held for 120 hours under a section 302 involuntary commitment after the patient has given the seventy-two hour notice of intent to leave the facility. We agree with appellant’s second contention and hold that, if involuntary proceedings are initiated after a patient has voluntarily committed himself, then either a hearing on the involuntary petition must be held within the time constraints of section 206 of the Act or the patient must be released under section 206 of the Act. Accordingly, we reverse.

The record establishes the following. On Tuesday, September 29, 1987, R.S. (daughter of J.S.) initiated proceedings for J.S.’s involuntary commitment under section 302 of the Act by applying for examination. No further action was taken on the involuntary application, i.e., no warrant was issued under section 302(a)(1) of the Act, and no examination under section 302(a)(2) of the Act occurred. On Wednesday, September 30, 1987, R.S. convinced J.S. to go to Thomas Jefferson University Hospital and voluntarily commit herself pursuant to section 201 of the Act. Under section 206 of the Act, persons who have been admitted voluntarily to treatment must be released upon indicating a desire to leave, unless they have agreed to be held for a set period of time after they indicate a desire to leave. However, seventy-two hours is the maximum amount of time which a voluntarily-committed person may be detained without being released.

Immediately after signing the voluntary commitment papers and agreeing to a detention of the maximum of seventy-two hours, J.S. said that she wanted to leave by Saturday, October 3, 1987, when the seventy-two hour period expired. N.T., 10/5/87, at 50. She was told that she would be released then. Instead, however, on Thursday, October 1, 1987, the hospital completed the previously instituted involuntary commitment proceedings under sections 302 and 303 of the Act by examining J.S. and certifying that she needed treatment. Pursuant to sections 302 and 303, J.S. had to be released within 120 hours of initiation of the involuntary proceedings unless a mental health review officer determined within that period that she was severely mentally disabled and that she required extended involuntary in-patient treatment.

On Monday, October 5, 1987, the section 303 hearing was held before mental health master Joseph M. Davidson. J.S.’s husband and daughter testified at the hearing. Their testimony established that in the month prior to her commitment, J.S. had imagined an affair between her husband and her girlfriend. She had become violent with her husband, at one point threatening to kill herself, him, and the girlfriend. See N.T., 10/5/87, at 7-10. The doctor who testified at the hearing recommended extended, twenty-day involuntary inpatient treatment because J.S. was potentially dangerous and had no insight into her condition. Id. at 45.

The master found that J.S. was severely mentally disabled within the meaning of the Act and ordered the extended involuntary treatment of twenty days. During the course of the hearing, J.S. told him about her voluntary commitment and that when she admitted herself on Wednesday, September 30, 1987, she had told the hospital that she wished to leave by Saturday, October 3, 1987. The master stated that he would check the hospital records and that he would discharge her the next day if she had, in fact, been committed voluntarily and had failed to receive a hearing before a master within the seventy-two hour time constraints of section 206 of the Act. On October 5, 1987, Davidson discharged J.S. and dismissed the section 303 petition on the grounds that J.S. had been held beyond the seventy-two hour period allowed by law.

The court of common pleas affirmed Davidson’s order by order dated October 5, 1987. The court of common pleas order dismissed the involuntary commitment petition and discharged J.S. This order was docketed on October 15, 1987. Also on that date, the Philadelphia County Office of Mental Health and Mental Retardation filed post-trial motions to the October 5, 1987 order of the court of common pleas, and on November 2, 1987, the office also filed a notice of appeal to us from the October 5, 1987 order. On October 31,1987, the trial court denied the office’s post-trial motions. This October 31, 1987 order was docketed November 4, 1987, and was vacated at a hearing held November 11, 1987. On December 14, 1987, pursuant to a petition for voluntary withdrawal of the appeal by the mental health office, the appeal before us from the October 31, 1987 order was discontinued.

Subsequently, on July 15, 1988, the court of common pleas granted appellee’s post-trial motions, vacated its October 5, 1987 order discharging appellant, vacated the master’s order discharging J.S., and remanded the matter to the master for further proceedings consistent with an opinion filed the same day. This appeal followed.

Initially, we address appellant’s argument that the trial court improperly vacated its October 5, 1987 order under section 42 Pa.C.S. § 5505, which states, “Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.” (emphasis added).

We first quote from Pa.R.C.P. 227.1:

(a) After trial and upon the written Motion for Post-Trial Relief filed by any party, the court may
(1) order a new trial as to all or any of the issues; or
(2) direct the entry of judgment in favor of any party; or
(3) remove a nonsuit; or
(4) affirm, modify or change the decision or decree nisi; or
(5) enter any other appropriate order.

(Emphasis added).

The October 5, 1987 order affirming the master’s discharge order was a decision in the case of a nonjury trial regarding which a motion for post-trial relief must be filed under Pa.R.C.P. 227.1(c)(2). See In re Wilson, 303 Pa.Super. 326, 449 A.2d 711 (1982); see also Commonwealth v. Wertz, 362 Pa.Super. 255, 523 A.2d 1179 (1987). The office filed timely post-trial motions to the October 5, 1987 order. The October 31, 1987 order denying these post-trial motions was vacated on November 1, 1987, within the thirty days prescribed by section 5505. The vacation of the order denying post-trial motions left the status of this case as follows: properly filed post-trial motions were pending with respect to the October 5, 1987 order which had affirmed the master’s discharge. Pa.R.Civ.P. 227.1 provides that a court may modify any order to which post-trial motions have been properly filed. Accordingly, the trial court had the authority to vacate its October 5, 1987 order at any time based upon the pending and properly filed post-trial motions. Consequently, the trial court had the power to enter its July 15, 1988 order granting post-trial motions and reversing its October 5, 1987 order.

Next, we will address the merits of this appeal. We must determine whether involuntary commitment proceedings completed after a patient has expressed his desire to leave a hospital following a voluntary commitment may extend the time period within which the patient must be released absent a hearing. Based on the statutory language of the Act and prior judicial interpretations of it, we hold that the procedure utilized in this case was improper on the grounds that appellant’s hearing on the involuntary petition had to be held within seventy-two hours of when she expressed her desire to leave the mental health facility under her voluntary commitment. While involuntary commitment proceedings may follow a voluntary commitment, either a hearing on the involuntary commitment or a patient’s release must occur within the time constraints of section 206 of the Act. Accordingly, we reverse the trial court’s July 15, 1988 order and affirm the October 5, 1987 master’s order discharging J.S.

We begin our analysis with the master’s February 1, 1988 opinion, which he filed in support of his decision and which states in pertinent part:

A major issue in this case has revolved around the question of whether a person who signs into the hospital and then gives a seventy-two hour notice can be held for one hundred and twenty hours under Section 302 of the Mental Health Procedures Act, even if there is no new behavior since they have been admitted.
I based my Opinion not only on my reading of the Act, but my involvement with the Amendments to the Act in 1978. I testified in Harrisburg concerning changes in the Mental Health Procedures Act, some of which were implemented, including the one hundred and twenty hour/five day period under Section 302. One of the suggestions that I myself made was to amend the Act so that all hearings would take place within five days after notice, including those under Section 206 of the Act. I felt that a uniform period would be preferable and would also give both the Petitioner and Respondent time to prepare anything that needed to be done. This was especially true over a weekend period. This suggestion was not accepted.
Therefore, it is my understanding that the legislature did not feel that what was suggested was an appropriate amendment and left the provision intact. What the City Solicitor suggests goes one step beyond what I had asked for, in that what they would do would be to append a 302 at the end of the seventy-two hour period and therefore have a person who voluntarily signs in the hospital staying in a hospital for eight days, instead of seventy-two hours as they had requested or one hundred and twenty hours as Section 302 of the Act currently requires.
This certainly seems contrary to the terms of the Act which always encourages voluntary treatment. This would penalize somebody for signing in voluntarily. Even without my testimony and my appearance at the hearings of the Welfare Committee, I would think that it would be clear that the Act does not intend to penalize a person for voluntarily seeking treatment.

Supplemental Opinion of Deputy Mental Health Master, 02/01/88, at 1-2.

We concur with these observations. The Act contains a clear preference for least restrictive treatment:

It is the policy of the Commonwealth of Pennsylvania to seek to assure the availability of adequate treatment to persons who are mentally ill, and it is the purpose of this act to establish procedures whereby this policy can be effected. The provisions of this act shall be interpreted in conformity with the principles of due process to make voluntary and involuntary treatment available where the need is great and its absence could result in serious harm to the mentally ill person or to others. Treatment on a voluntary basis shall be preferred to involuntary treatment and in every case, the least restrictions consistent with adequate treatment shall be employed.

50 P.S. § 7102 (emphasis added).

Section 206 governs voluntary proceedings and unequivocally provides for release within a maximum of seventy-two hours of when a voluntarily-committed patient seeks discharge: “A person in voluntary inpatient treatment may withdraw at any time by giving written notice unless, as stated in section 203, he has agreed in writing at the time of his admission that his release can be delayed following such notice for a period to be specified in the agreement, provided that such period shall not exceed 72 hours.” 50 P.S. § 7206 (footnote omitted) (emphasis added). Significant in this case is the fact that appellee acquiesced in J.S.'s voluntary commitment. They were not required under the Act to accept J.S.’s voluntary commitment, but could have proceeded with the involuntary proceedings on September 30, 1987 if they determined that adequate treatment required involuntary commitment.

The master observed that the procedure utilized in this case may result in a patient being hospitalized up to eight days without a hearing. This observation is correct. If a patient states a desire to leave following voluntary commitment on a seventy-two hour basis, a mental health facility could initiate involuntary proceedings on the seventy-second hour of the patient’s request for discharge. Under the provisions applicable to involuntary commitments, a hearing is not required until up to five days after initiation of the petition.

The Act does not envision such a lengthy, unreviewed deprivation of liberty. As the master notes, five days is the longest a patient is to be kept involuntarily without a hearing under the Act. The procedure utilized by appellee could result in eight days of involuntary and unreviewed commitment, to the detriment of voluntarily committed patients. Thus, the procedure is inconsistent with the statutory purpose of preferring the least restrictive form of treatment as well as due process concerns.

The Mental Health Procedures Act is strictly construed due to a consideration directly implicated by our decision in this case: “commitment entails a massive deprivation of liberty.” Commonwealth v. Hubert, 494 Pa. 148, 153, 430 A.2d 1160, 1162 (1981); see also In re S.C., 280 Pa.Super. 539, 547, 421 A.2d 853 (1980), quoting Eubanks v. Clarke, 434 F.Supp. 1022, 1028 (E.D.Pa.1977) (“[T]he very nature of civil commitment entails an extraordinary deprivation of liberty. A statute sanctioning such a drastic curtailment of the rights of citizens must be narrowly, even grudgingly construed, in order to avoid deprivations of liberty without due process of law.”).

Moreover, we fail to see how the requirement that a hearing be held within seventy-two hours of when the patient asks to leave interferes with any countervailing interest protected by the Act. Liberty interests are protected by the hearing; society’s interests are protected by the fact that an individual can be hospitalized following expression of a desire to leave up to three days without a hearing. Society is not threatened by requiring a hearing within seventy-two hours instead of 120 hours. Appellee presents no compelling reason why a hearing cannot be held within the time constraints of section 206, when an individual’s liberty interests are at issue.

We emphasize that nothing in this opinion requires that a patient be discharged without treatment as suggested by appellant. Involuntary proceedings may be instituted following a voluntary commitment if involuntary proceedings are appropriate. Thus, we agree with appellee to the extent that it argues that nothing in the Act prohibits initiation of involuntary proceedings following a voluntary commitment. We merely agree with the master that if a patient has been voluntarily committed, has indicated a desire to leave, and needs further medical treatment, then the hearing on the involuntary proceedings be held within the time constraints of section 206 of the Act. Thus, the hearing on the involuntary commitment must be held within seventy-two hours if the voluntarily-committed patient has agreed to be hospitalized for that period following expression of his desire to leave. If the patient has agreed only to a lesser period and if the mental health facility has acquiesed in voluntary treatment under those terms, then release or a hearing must follow within the period which the patient agreed to remain in the hospital following expression of a desire to leave.

We must reject appellee’s contention that the examination safeguard built into involuntary commitment proceedings adequately protects an individual’s liberty interests. This is evident from the testimony in this case. Under section 302(b), a person who has been taken to a treatment facility involuntarily must be examined by a physician within two hours of arrival. This examination is to determine if the person is severely mentally disabled and in need of treatment. Appellee suggests that this physician’s examination sufficiently safeguards an individual’s liberty interests, so that a hearing is unnecessary. We disagree.

From the record in this case, it appears that J.S.’s two-hour “examination” consisted of a physician’s observation of her during group therapy, after which he concluded that she was mentally disabled because she interrupted the group discussion by talking about an “Arab plot” and about putting cable television in the northeast. N.T., 10/5/87, at 37-38. The cursory nature of this examination raises doubts as to whether her liberty interests were adequately protected by the examination. The legislature envisioned court review as the protection of the individual, not examination by medical personnel.

We do not question that J.S. required medical treatment. “However, it must be remembered that the mental condition of the person in no way diminishes his right to due process.” In re S.O., 342 Pa.Super. 215, 233, 492 A.2d 727, 737 (1985). Further, appellee fails to address a compelling question. What if J.S. had not been severely mentally disabled? It is apparent from the record that J.S. was outraged at her involuntary deprivation of liberty over a weekend. During the hearing, she expressed surprise that something was wrong with her brain. She should have received a hearing by Saturday, even if the only objective which would have been accomplished at the hearing was that she would have gained more insight into why she was in the facility. If she had not been mentally disabled, the benefit of having a Saturday hearing instead of a Monday hearing strikes at the heart of our freedom interests.

We have had the opportunity to construe the Act in the past. We have required strict adherence to the procedural due process safeguards built into the Act, which was intended to provide treatment with the “least restriction on liberty and freedom consistent with protection of the patient and society.” Id., 342 Pa.Superior Ct. at 230, 492 A.2d at 735. While we acknowledge J.S.’s need for treatment may have been real, “It is not enough to find that appellant was truly in need of the services offered by the mental health system____ Where procedural requirements are not fulfilled, the commitment is unlawful.” Id., 342 Pa.Superior Ct. at 233-34, 492 A.2d at 727. We cannot permit mandated, due process procedures to be ignored due to a need for treatment. Id.

Appellee also relies upon the regulations promulgated under the Act in support of its position, specifically 55 Pa.Code § 5100.76(b), which provides:

(b) The person receiving a signed Form MH 781-F from a patient shall immediately examine the patient’s record to determine whether the patient has previously agreed to remain in treatment for a specified period not to exceed 72 hours after having given written notice of intent to withdraw from involuntary treatment. If no such consent has been given, the patient may immediately withdraw from treatment unless an application for emergency involuntary treatment is executed under section 302 of the act (50 P.S. § 7302), and the patient is advised accordingly.

Appellee posits that this authorizes the initiation of involuntary proceedings after a patient has submitted to voluntary treatment. We agree. However, the regulation does not address the issue presented in this appeal. Our decision does not prevent the initiation of involuntary proceedings following voluntary commitment. We hold only that a hearing on the involuntary petition must be held within the time constraints of section 206, i.e., within the time period which the patient agreed to remain in treatment voluntarily following expression of a desire to leave. The regulation is entirely silent as to when a hearing must be held on the involuntary petition which has been initiated following the voluntary commitment. As the regulation does not address this issue, it provides no support for appellee’s position.

Finally, appellee relies upon Commonwealth v. C.B., 307 Pa.Super. 176, 452 A.2d 1372 (1982), in support of its position. In C.B., involuntary proceedings were initiated after a patient voluntarily committed himself; however, the commitment hearing was held within seventy-two hours of when the patient asked to leave. The C.B. court did not address the issue before us, and appellee’s reliance upon it is misplaced.

For the foregoing reasons, the order is reversed. Jurisdiction is relinquished.

KELLY, J., files a concurring and dissenting opinion.

KELLY, Judge,

concurring and dissenting.

While I share the majority’s concern that involuntary commitment proceedings might be abused to detain persons who give proper notice of their intent to withdraw from voluntary commitment, I find no statutory authority for the rule announced by the majority that a judicial hearing must be conducted within 72 hours of notice of intent to withdraw from involuntary commitment. I analyze the applicable statutes differently.

Though R.S. had originally made an application for examination under 50 P.S. § 7302(a)(1), in order to initiate involuntary civil commitment, no warrant for examination was issued, no examination was conducted, and no determination of the need for treatment was made at that time. See 50 P.S. §§ 7302(a) and 7302(b). Instead, on the following day, R.S. convinced J.S. to accede to voluntary civil commitment.

Under 50 P.S. § 7203, informed consent to voluntary commitment requires, among other things, clear notice that a written request and a delay of a specified period of not more than 72 hours will be required in order to obtain release from voluntary commitment. Presumably, a patient may reduce the authorized delay between written notice and release to any amount of time less than seventy-two hours. Here, J.S. consented in writing to the maximum delay of seventy-two hours. Upon admittance, however, she proceeded to give immediate notice of her intent to withdraw from voluntary commitment, thus triggering the seventy-two hour release provision.

The majority hold that if J.S.’s voluntary commitment was to be extended beyond the seventy-two hour delay authorized, a judicial hearing had to be held within seventy-two hours. The majority cite no statutory authority for that requirement. Rather, they engraft the requirement upon statutes which provide no means whatsoever for extending “voluntary” treatment, 50 P.S. §§ 7201-7206, and upon statutes which provide no such restriction on involuntary commitment, 50 P.S. §§ 7301-7306.

Appellee argues that continued detention of J.S. beyond the 72 hour delay authorized, was proper under 50 P.S. § 7302(d). To a limited extent, I agree with appellee’s reasoning. But, I reject appellee’s application of that reasoning to the facts of this case.

The provisions of 50 P.S. §§ 7301-7306 contain no special rules for patients previously committed voluntarily. Two possibilities then logically arise. Either the same rules apply for converting a voluntary commitment to an involuntary commitment as apply to initial involuntary commitments, or such conversions are simply not allowed. Like the majority, I reject, utterly, any suggestion that once a person enters voluntary commitment they cannot thereafter be involuntarily committed. When there is truly a clear and present danger that a patient may harm himself, herself, or others, as the result of a severe mental disability, both the patient and the community have a compelling interest in ensuring that appropriate treatment and restraint is provided. Liberty interests and medical efficacy create a strong preference for voluntary treatment; nonetheless, if the need for treatment and/or restraint outlasts the patient’s consent, both communal necessity and basic humanity command that compulsion authorized by law be substituted for consent. Because there are no specific provisions governing conversion from voluntary commitment to involuntary commitment, we must assume that the legislature intended no differences in involuntary commitment procedures under such circumstances.

When a prospective involuntary commitment patient is not otherwise in lawful custody, detention for examination may only be conducted under the authority of a lawful warrant for examination, or under emergency powers delegated to physicians, law enforcement officers, and other properly designated persons, to detain and transport patients for emergency examination, upon personal observation of conduct providing reasonable grounds to believe the patient is severely mentally disabled and in need of immediate treatment. 50 P.S. §§ 7302(a)(1), 7302(a)(2). When, as here, the prospective involuntary committee is already lawfully detained for voluntary commitment, an examination for involuntary commitment may be conducted upon written certification by a physician stating the need for such examination, 50 P.S. § 7302(a), so long as the examination is completed before the delay period prior to the expiration of the date for release from voluntary commitment. If that time period expired, further detention for examination would then have to be grounded upon authority properly derived under the warrant or emergency provisions.

As soon as the justification for detention shifts from the prior voluntary commitment to involuntary commitment, appellant must be provided “reasonable use of the telephone,” and the county administrator or director of the facility must request the names of parties to be told of, and kept informed regarding, the patient’s status. The administrator or director then has an obligation to inform those persons of the patient’s whereabouts, how and when the patient may be contacted, and how information may be obtained concerning the patient during involuntary commitment. Action must also be taken to ensure that the needs of the patient’s dependants are met and that the patient’s property is made secure. See P.S. § 7302(c). Because the provisions of § 7302(c) are to apply “upon arrival at the facility” and the required examination is to occur “within two hours of arrival,” I find that “reasonable use of the telephone must be permitted before the examination in a situation involving a conversion from voluntary to involuntary commitment status.” Compare 50 P.S. § 7302(b) and 50 P.S. § 7302(c).

Voluntary civil commitment may be approved for anyone “in need of treatment” providing informed consent as to the conditions of commitment is given by the patient. See 50 P.S. § 7201; 50 P.S. § 7203. Involuntary civil commitment, on the other hand, may only be based upon the examining physician’s findings that the patient’s severe mental disability poses a clear and present danger of harm to himself or others. 50 P.S. § 7301(a). The physician must make a written record of the examination and his or her findings, which is subject to criminal penalties for making false unsworn statements to authorities, and which must be transmitted to the county mental health administrator. 50 P.S. § 7302(b); 50 P.S. § 7110. If the physician determines that the patient needs involuntary treatment authorized by law, then the patient may be detained for treatment for a period not more than 120 hours, unless the patient consents to voluntary commitment or certification for extended treatment is received. 50 P.S. § 7302(d).

The majority has expressed concern that if a facility utilized their outside extreme authorization under the provisions of 50 P.S. § 7201 et seq. and 50 P.S. §§ 7301 et seq., a patient seeking to withdraw from voluntary commitment could be detained for as long as 8 days (72 hours plus 120 hours) without judicial review of the commitment. The majority concludes that this .could not have been intended by the legislature, and so they engraft upon the statutes a provision the legislature did not see fit to provide itself. This we may not do. See Commonwealth v. Revtai, 516 Pa. 53, 64, 532 A.2d 1, 11 (1987). Though the majority’s concern for the liberty interests of the individual detained are unquestionably legitimate and laudable, I believe they are misdirected.

A significant omission is made in the majority’s analysis regarding the limits imposed by statute upon the duration of involuntary commitment for “emergency examination and treatment.” Specifically, the majority fail to consider the effect of the requirement that applicatidn for extended treatment be made “whenever the facility determines that the need for emergency treatment is likely to extend beyond 120 hours.” 50 P.S. § 7303(a). Given the patient’s liberty interests at stake, I would construe “whenever” to mean “as soon as.” This construction is supported by the statement in the next sentence of that provision that the application is to be filed in the Court of Common Pleas “forthwith.” 50 P.S. § 7303(a).

So construed, the provision provides an effective limitation on potential delay in release or review in cases involving conversion from voluntary commitment to involuntary commitment. An application for extended treatment triggers appointment of counsel and a requirement that an informal hearing be conducted by a judge or mental health review officer “within 24 hours.” 50 P.S. § 7303(b).

When a facility finds it necessary to seek conversion of voluntary commitment to involuntary commitment, I believe it is safe to assume that they will ordinarily do so in situations where they will have determined that there is at least a “likelihood” that detention beyond 120 hours may be needed. In absence of clear and convincing evidence that the examining physician reasonably believed that it was unlikely that detention for involuntary treatment beyond 120 hours would be needed, I would construe the mandate of 50 P.S. § 7303(a) to require an application for extended treatment be filed “forthwith” (immediately) upon conversion of a patient’s status from voluntary commitment to involuntary commitment.

I believe the foregoing construction of the various provisions of the Mental Health Procedure Act is fully consistent with the legislature’s expressed intent, and the statutory rules of construction. 50 P.S. § 7102; 1 Pa.C.S.A. §§ 1901 et seq. So construed, I find that the majority’s concerns are adequately addressed; and, more to the point, the mandates of substantive and procedural due process are fully met with regard to the legitimate liberty interests of patients involuntarily committed. Indeed, in the vast majority of cases the above construction of the applicable provisions would require either: release within no more than 72 hours after notice of intent to withdraw from voluntary commitment; or, provision of counsel and an informal hearing within no more than 96 hours after notice of intent to withdraw from voluntary commitment. Furthermore, I note that while we must ensure that commitment procedures are not manipulated to improperly delay release or the review hearing, we must also give due deference to the legislature’s evaluation of the achievable time limits which may be imposed on mental health authorities given the staff and resources available, and the demands which the substantive and procedural mandates of the Mental Health Procedures Act impose upon these authorities.

While I do not construe the applicable procedural mandates the same way as the majority in this case, I join their conclusion that J.S. was improperly denied a timely informal hearing in accordance with 50 P.S. §§ 7303(a), 7303(b). The lawful delay period for J.S.’s release from voluntary commitment expired on Saturday morning, October 3, 1987, 72 hours after she had given written notice of her intent to withdraw from voluntary treatment. On October 1, 1987, after receiving notice from J.S., of her intent to withdraw from voluntary commitment, the facility revived R.S.’s dormant application for examination of J.S. and conducted the examination required by 50 P.S. § 7302 for involuntary commitment. A review hearing was not held, however, until 4 days later on October 5, 1987. I find the delay between completion of the physician’s examination and the convening of J.S.’s review hearing to have been improper. As soon as J.S.’s examination was completed and her status was converted to involuntary commitment, an application for extended treatment was required under 50 P.S. § 7303(a). Had this been done, an informal hearing would have been conducted on Friday, October 2, 1987 or Saturday, October 3, 1987, rather than Monday, October 5, 1987. Thus, I concur in the result of the majority’s conclusion that a timely hearing was not held.

I cannot agree, however, that discharge of a patient, without regard to the patient’s need for treatment or society’s need for protection, is the required or appropriate remedy in such cases. I do not construe the provisions of the Mental Health Procedures Act to require such a remedy-

When a timely hearing is not held, court action may certainly be instituted seeking habeas corpus or mandamus relief to compel an immediate hearing. See 50 P.S. § 7113. However, release of a patient without regard to the patient’s need for treatment and/or restraint would in no way serve the present and future interests of the patient or the community, nor would it return to the patient the hours the patient was improperly detained prior to the required hearing.

Even in a case where the failure to conduct a timely hearing under the Act was grossly negligent, or intentionally and improperly motivated, I would not find automatic release appropriate. Rather, I would direct that an immediate hearing be conducted, and leave determination of an appropriate sanction or penalty for the responsible parties and/or the amount of compensatory relief due to the patient for the abuse of commitment proceedings, to appropriate collateral criminal or civil proceedings, e.g. prosecution for unlawful restraint or a civil suit for false arrest and/or a violation for civil rights. See 50 P.S. §§ 7112, 7114.

The mental health review officer here specifically held that J.S. was severely mentally disabled within the meaning of the Act and in need of involuntary treatment, yet nonetheless ordered her release based upon the improper delay in providing J.S. the informal hearing to which she was entitled. Initially, the trial court affirmed the mental health review officer’s decision, and J.S. was.in fact released. On timely reconsideration, however, the trial court granted the hospital’s post-verdict motions challenging that disposition, and remanded for further proceedings. Essentially, the trial court held that the disposition on procedural grounds was improper, and that the case should be reconsidered by the mental health review officer on its merits. I would affirm the trial court’s order in that limited respect, and in that respect dissent from the majority opinion in this case.

■ However, J.S. has remained on release from commitment during the pendency of these proceedings, apparently without any serious incidents warranting her re-confinement. Fortunately, out-patient services proved adequate despite both the examining physician’s and the mental health review officer’s negative assessment of the adequacy of such an alternative to involuntary commitment. The Mental Health Procedures Act provides in numerous provisions throughout that involuntary detention must end as soon as less restrictive means become adequate. See 50 P.S. §§ 7102, 7107, 7108, 7302(d), 7303(a), 7303(h), 7304(g)(3). Given the extreme staleness of the grounds upon which the original involuntary commitment was based, and the Mental Health Review Officer’s initial findings indicating a need for involuntary commitment were predicated, I would find that detention under the prior examination and findings could no longer be deemed appropriate, and that a new examination under 50 P.S. § 7302(b) would be required before J.S. could be recommited.

Hence, I concur in part and dissent in part.

      . We recognize that the doctrine of mootness is implicated in this appeal since the patient is discharged and currently under out-patient psychiatric care. However, we normally review commitment procedures even if the patient is discharged since often the patient is discharged at the time we are reviewing the challenged proceedings. The procedures, which are of great public concern due to implication of liberty interests, otherwise would be capable of constantly evading appellate review. See In re S.O., 342 Pa.Super. 215, 492 A.2d 727 (1985); In re Wilson, 303 Pa.Super. 326, 449 A.2d 711 (1982); see also Commonwealth v. Bernhardt, 359 Pa.Super. 413, 519 A.2d 417 (1986).

      . We note that according to the trial court, J.S. has improved substantially under out-patient psychiatric care following her discharge by the master.

      . 55 Pa.Code § 5100.76(c) appears to provide support for appellee’s position:
      (c) If consent to remain in treatment had been given, the person examining the record shall notify the patient and a member of the treatment team or their designer, who shall be available at all times. The treating facility may delay release of such person for a period not exceeding that specified if the treatment team or its designer has reason to believe that:
      (1) The individual is severely mentally disabled and a petition for involuntary treatment under section 302 of the act (50 P.S. 7302), is to be filed before the end of the specified time period; or
      (2) Immediate release would be medically dangerous to the health of the individual.
      To the extent this regulation can be construed as permitting delay of the section 206 release, we reject it as contrary to the express provisions of the Act. See Northampton, Bucks County Municipal Authority v. Commonwealth, 521 Pa. 253, 555 A.2d 878 (1989) (while regulations carry a presumption of validity, court can reject them if they are inconsistent with the meaning of the statute they are intended to interpret).

      . Our legislature has expressed a clear preference for voluntary rather than involuntary civil commitment. 50 P.S. § 7102. Thus, it was plainly appropriate for hospital officials to process J.S.’s voluntary commitment, rather than R.S.’s original application seeking involuntary commitment of J.S.

      . In the case of In re Condry, 304 Pa.Super 131, 450 A.2d 136 (1982), this Court approved sub silentio the initiation of involuntary commitment proceedings following a patient’s election to give notice of intent to withdraw from voluntary commitment. There was no indication in that case that the involuntary commitment was treated differently on account of its genesis from a prior voluntary commitment.

      . The record is not clear as to when the examination was completed; moreover, even a requirement that an application for extended treatment be filed "forthwith” would involve some allowance for administrative processing. Consequently, I note that a delay in conducting the informal hearing until Saturday, October 3, 1987 might not have been unreasonable.

      . I note that I would not exclude weekends from the time requirements for conducting an informal hearing before a judge or mental health review officer. Given the liberty interests at stake I would not imply authorization of automatic 48 hour extensions of confinement on that basis. Weekend informal hearings must therefore be required in such cases. The fact that courts are closed for formal hearings during weekends in no way affects that requirement. Apparently, however, the fact that common pleas courts are closed may affect the "filing” of an application for extended treatment. See 50 P.S. § 7303(a); 1 Pa.C.S.A. § 1908; Pa.R.C.P. 106.

      . In In re Condry, supra, a panel of this Court held that the failure to include a description of treatment in an order for extended treatment required that the order be vacated. 450 A.2d at 139. The panel did not face a question as to whether the patient was to be discharged as a result of that defect, or whether a new order or a new proceedings would be sufficient because the involuntary commitment order had expired by its own terms before the appeal was decided.
      In In re S.O., 342 Pa.Super 215, 492 A.2d 727 (1985), a panel of this Court upheld two involuntary commitment orders despite several procedural errors, including improper delays of 50 and 36 days respectively in conducting the de novo review required under 50 P.S. § 7109(b). The panel reasoned:
      We cannot, in exercising our paternalistic impulses, forget that due process requirements must be met to assure compliance with legal standards related to the restriction of liberty. We do not mean to denigrate good intentions, but only to make clear that more is required than a sincere desire to help. Assistance must be rendered properly, or in a larger sense, this carefully balanced system will fail.
      On the other hand, this same restraint of liberty which prevents us from shouting "fire” in a crowded theater, prohibits as well the exercise of "liberty" by those to whom it is in fact anathema, spelling certain, although possibly slow, destruction. It is this consideration which must affect most strongly our determination of appropriate relief.
      492 A.2d at 737. I find this reasoning persuasive, as well as supportive of the general premise which I urge above regarding the choice of an appropriate remedy when a timely hearing is not conducted as required.

      . I agree with the majority, nonetheless, that this appeal has not become moot. Such an approach would quite likely insulate any error in such proceedings (negligent, reckless, or intentional) from appellate review. See In re Condry, supra, 450 A.2d at 136. Hence, review is appropriate even though the affirmance of the order would not directly affect J.S.’s liberty under the views espoused in this opinion.


author: POPOVICH, Judge: JOHNSON, Judge,

text:
    564 A.2d 479
    COMMONWEALTH of Pennsylvania, Appellee, v. Pedro TERREFORTE, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Submitted Feb. 27, 1989.
    Filed July 26, 1989.
    Reargument Denied Oct. 10, 1989.

      Irene H. Cotton, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
    Before POPOVICH, JOHNSON and WATKINS, JJ.
   POPOVICH, Judge:

This consolidated appeal stems from appellant’s Post Conviction Hearing Act petition to withdraw his guilty plea. On December 12, 1983, Pedro Terreforte entered a plea of guilty to rape, 18 Pa.C.S.A. § 3121, involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123, and possession of an instrument of crime, 18 Pa.C.S.A. § 907(a). However, appellant, at his guilty plea colloquy, expressly reserved the right to raise on appeal a speedy trial issue, Pa.R.Crim.P. Rule 1100. When ruling upon appellant’s PCHA petition, the lower court denied his petition to withdraw his plea. However, the court granted appellant the right to appeal the Rule 1100 issue nunc pro tunc. Consequently, we have before us a consolidated appeal: 1) from the denial of the PCHA petition to withdraw a guilty plea, at 2774 Phil. 1988; and 2) from the judgment of sentence alleging a Rule 1100 violation, at 2775 Phil.1988. For the following reasons, we grant appellant’s petition to withdraw his guilty plea and remand for a new trial. Consequently, we quash appellant’s appeal nunc pro tunc of the Rule 1100 issue.

After engaging in a lengthy colloquy during which appellant was informed of the consequences of his guilty plea, the trial court informed him that his right to raise the Rule 1100 issue on appeal would be preserved. See Guilty Plea Colloquy, pp. 17, 34-35. The trial court then accepted his plea, deferred sentencing pending a psychiatric evaluation and informed appellant of his right to petition for withdrawal of his plea prior to sentencing. Guilty Plea Colloquy, p. 36.

Post-plea motions alleging trial court error in granting the Commonwealth’s Rule 1100 extensions were filed. On September 25, 1984, after denying the motion, the trial court sentenced appellant to a term of incarceration total-ling twelve and one-half to twenty-five years. On October 5, 1984, appellant filed a post-sentencing motion to withdraw his guilty plea, but said motion was denied. On October 11, 1984, appellant filed a petition for reconsideration and/or modification of sentence. However, this petition was also denied. Appellant did not appeal.

On April 29, 1986, appellant filed a pro se petition under the Post Conviction Hearing Act. Almost one year later, on April 28, 1987, new counsel was appointed, and appellant filed an amended PCHA petition requesting: 1) a complete discharge due to a Rule 1100 violation; 2) resentencing; 3) the right to appeal nunc pro tunc since counsel was ineffective by failing to file a direct appeal; and 4) permission to withdraw his plea since it was unlawfully induced by the ineffectiveness of counsel aided by court error. Following an evidentiary hearing, the PCHA court determined that appellant entered his plea knowingly and voluntarily. However, the PCHA court found that appellant’s plea was entered with the reservation that his right to direct appeal of the Rule 1100 issue would be preserved. Thus, the PCHA court denied appellant permission to withdraw his guilty plea and granted permission to appeal the Rule 1100 issue nunc pro tunc. This consolidated appeal followed.

On appeal, appellant contends that he should be permitted to withdraw his guilty plea since it was not entered knowingly and voluntarily. Specifically, appellant argues that when he entered his plea, he was misinformed by the court that the Rule 1100 issue would survive his plea and establish grounds for appeal. Therefore, he could not have entered a voluntary plea since he relied on the erroneous statements of the trial court. Additionally, appellant argues counsel was ineffective since counsel incorrectly advised him that conditional pleas are accepted in Pennsylvania, and appellant entered his plea in reliance on that advice. Upon review, we agree with appellant, grant his petition to withdraw his guilty plea and remand for a trial.

When reviewing a request to withdraw a guilty plea after sentence has been entered, we must determine whether there has been a showing of prejudice which results in a manifest injustice to the defendant. Commonwealth v. Vance, 376 Pa.Super. 493, 498, 546 A.2d 632, 635 (1988); Commonwealth v. Middleton, 504 Pa. 352, 473 A.2d 1358 (1984); Commonwealth v. West, 336 Pa.Super. 180, 485 A.2d 490 (1984). If a defendant seeks to withdraw his plea after sentencing, then he must carry the substantial burden of demonstrating manifest injustice in order to prevent the use of plea withdrawal merely as a sentence testing device. Vance, 546 A.2d at 635; Commonwealth v. Shaffer, 498 Pa. 342, 345, 446 A.2d 591, 593 (1982). Under the manifest injustice standard, the petitioner must show that his plea was involuntary or was entered without knowledge of the charge. Commonwealth v. Glaze, 366 Pa.Super. 517, 520, 531 A.2d 796, 798 (1987); Shaffer, supra.

Rule 319 of the Pennsylvania Rules of Criminal Procedure requires that a court conduct an on-the-record colloquy to determine whether the guilty pleas is entered in a knowing and voluntary manner. The test of an adequate colloquy comprises of six factors which are outlined in the comment to Rule 319, as follows:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has the right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until he is found guilty?
(5) Is the defendant aware of the permissible ranges and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such an agreement?

Inquiry into those factors is mandatory during the plea colloquy. Glaze, 531 A.2d at 798-799; Commonwealth v. Moore, 365 Pa.Super. 65, 72, 528 A.2d 1364, 1368 (1987); Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977).

Instantly, the PCHA court found that the lower court inquired into all six factors. However, such an inquiry is inapposite presently since appellant’s guilty plea, a conditional plea which attempted to preserve a nonjurisdictional issue, was facially invalid. In Pennsylvania, it is axiomatic that, after a defendant enters a guilty plea, only the voluntariness of the plea, the legality of the sentence, the jurisdiction of the court and the competency of counsel may be challenged on appeal. Commonwealth v. Montgomery, 485 Pa. 110, 118, 401 A.2d 318, 319 (1979); Moore, 528 A.2d at 1367; Commonwealth v. Thomas, 351 Pa.Super. 423, 425, 506 A.2d 420, 422 (1986); Commonwealth v. Khorey, 347 Pa.Super. 171, 173, 500 A.2d 462, 463 (1985) (en banc); Commonwealth v. Moore, 321 Pa.Super. 442, 468 A.2d 791 (1983). Non-waivable jurisdictional defects include only those which undermine a court’s subject matter jurisdiction. Thomas, 506 A.2d at 422; Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974). Undoubtedly, Rule 1100 issues are not non-waivable jurisdictional issues. See Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972); Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988) (Rule 1100 is a “procedural technicality”). The fact that a trial court accepts a defendant’s conditional guilty plea does not validate an otherwise illegal plea. Thomas, 506 A.2d at 424.

The lower court’s colloquy is replete with inconsistency. During the seemingly text-book colloquy, the court specifically stated, “So those are your three very limited grounds [for appeal], voluntariness of your plea, the jurisdiction of this Court, whether or not you receive a legal and proper sentence; do you understand that?”, to which appellant answered affirmatively. Guilty Plea Colloquy, p. 17. However, with his next breath, the judge stated, “Okay. And you will have an opportunity to litigate that matter [Rule 1100 rights] on appeal if you so desire.” Guilty Plea Colloquy, p. 18. In accepting the plea, the court stated, “All right, the Court will accept the plea of guilty. You may arraign the defendant. You are entering this guilty plea with the right to still litigate your eleven-hundred.” Guilty Plea Colloquy, p. 34.

When appellant was questioned, “If you had known at that time that your Rule 1100 issue would not be preserved, that it would be killed by the guilty plea, would you have pled guilty anyway?”, he answered, “No.” PCHA Hearing, January 12,1988, pp. 6-7. Upon review of the plea colloquy and the PCHA hearing testimony, we are convinced that appellant would not have entered a guilty plea but for the court’s assurance that his right to appeal his Rule 1100 issue would survive his guilty plea. Since the court had absolutely no authority to accept such a plea, we are constrained to find that appellant’s plea was unlawfully induced. Manifest injustice has been demonstrated instantly. The appellant relied on the court’s assurances that his Rule 1100 issue would be preserved and, consequently, was involuntarily induced to enter his plea. Clearly, the PCHA court erred in denying appellant’s petition to withdraw his plea.

Moreover, appellant correctly asserts that trial counsel was ineffective for advising him to enter a conditional guilty plea which defense counsel, the prosecution and the court undoubtedly knew was illegal. When ineffective stewardship is alleged in connection with withdrawal of a guilty plea, the ineffectiveness will provide a basis for withdrawal only if there is a nexus between counsel’s actions and an involuntary or unknowing plea. Vance, 546 A.2d at 635; West, supra; Commonwealth v. Owens, 321 Pa.Super. 122, 467 A.2d 1159 (1983). When reviewing an attack on the stewardship of counsel, we employ the established standards recently reiterated by our Supreme Court in Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989).

Approaching our task of determining whether counsel’s assistance was effective we initially presume that it was. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Then, in analyzing a defendant’s claim, we examine whether the claimant’s allegations are possessed of arguable merit. Pierce, supra; Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Maroney, supra. We next determine whether of the alternatives available to counsel in presenting the defense those chosen were possessed of a reasonable basis in effecting his client’s interests. Id.; Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983). Assuming positive resolution of both inquiries above, we require finally that the claimant demonstrate how the asserted ineffectiveness prejudiced his cause. Pierce, supra; Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983), cert. den’d, 465 U.S. 1104 [104 S.Ct. 1603, 80 L.Ed.2d 133] (1984).

Hentosh, 554 A.2d at 24.

Applying the three-pronged ineffectiveness test to the case at bar, we are convinced counsel was ineffective. The issue underlying appellant’s ineffectiveness claim is arguably meritorious since, as stated previously, conditional pleas are not accepted in Pennsylvania. Faced with a plethora of cases which hold that only the issues of legality of the sentence, validity of the plea and jurisdiction of the court may be appealed following the entry of a guilty plea, we can find no reasonable basis for counsel to have allowed his client to enter a conditional guilty plea. Finally, as appellant stated on-the-record, he would not have entered a guilty plea had he known the Rule 1100 issue would be lost for appellate review. Thus, appellant was prejudiced by relying to his detriment on the erroneous advice of counsel that the Rule 1100 issue could survive the plea. Clearly, trial counsel was ineffective.

In Thomas, 506 A.2d 420, we were faced with a similar situation. Therein, we allowed appellant to withdraw his plea of nolo contendere which was specifically conditioned upon a reservation of his right to appeal the denial of his pre-trial motions. In so ruling, we held that trial counsel was ineffective in “recommending a plea premised upon the faulty presumption that appellant’s nonjurisdictional pre-trial challenges could survive the entry of that plea.” Thomas, 506 A.2d at 424. Further, we found that “trial counsel’s ineffectiveness induced an involuntary plea.” Thomas, 506 A.2d at 424. As in Thomas, supra, the nexus between present trial counsel’s actions and the involuntary plea is obvious — trial counsel’s faulty advice induced appellant to enter an involuntary plea, i.e., a guilty plea conditioned upon preservation for appeal of an issue which could not be preserved.

In sum, we take this opportunity to chastise defense counsel, the prosecution and, most importantly, the trial court for allowing appellant to enter a conditional guilty plea. It is beyond our comprehension how, after informing appellant on-the-record that only issues of legality of sentence, validity of plea and jurisdiction of court are preserved for appeal following a guilty plea, the lower court could then accept a guilty plea expressly conditioned upon preservation of an issue not included within those exceptions. The trial court simply should have refused to accept the conditional plea. However, by accepting the conditional plea, the court exacerbated the effect of the erroneous advice of trial counsel. Similarly, the prosecution should have objected to the plea, instead of standing in silent acceptance. Obviously, the appellant relied to his detriment on the actions of the court and counsel and thereby entered an involuntarily induced guilty plea.

We have before us an appellant who pleaded guilty to heinous crimes, including rape, and received a sentence commensurate with the severity of those crimes. However, years later, we must allow appellant to withdraw his guilty plea and award him a trial, not because of an assertion of innocence and offer of exculpatory proof but rather because of egregious error on the part of counsel and, more importantly, the court. Although we abhor the remedy which we are compelled to administer, had the trial court simply refused to accept a plea which it undoubtedly knew was illegal, we would not be forced to remand for a trial which, due to the passage of time, may be impossible to prosecute effectively.

However, our concern is not whether appellant can be convicted upon remand, rather our concern is remedying the errors of trial counsel and the court. Accordingly, finding that the appellant has met his burden of showing prejudice which resulted in manifest injustice, we reverse the order of the court below, allow appellant to withdraw his plea and grant him a new trial.

Order of PCHA court reversed. Permission to withdraw guilty plea is granted. Remanded for trial. Appeal nunc pro tunc (2775 Phil. 1988) is quashed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

Pedro Terreforte pled guilty to rape and involuntary deviate sexual intercourse. The Honorable Levan Gordon sentenced him to an aggregate sentence of twelve and one-half to twenty-five years’ imprisonment. Post-sentence motions seeking withdrawal of the guilty plea and reconsideration of the sentence were denied. No direct appeal was taken.

A year and one-half later, Terreforte filed a pro se petition under the Post-Conviction Hearing Act, (PCHA) 42 Pa.C.S. § 9541 et seq. A year after that, on April 28, 1987, represented by present counsel, he filed an amended PCHA petition, seeking (1) a direct appeal from judgment of sentence nunc pro tunc, and (2) plea withdrawal allowance.

Following a hearing, the Honorable Joseph D. O’Keefe, denied the request for plea withdrawal but granted Terreforte the right to appeal nunc pro tunc on the narrow issue of the extension of time to commence trial granted to the Commonwealth pursuant to Pa.R.Crim.P. 1100.

Terreforte filed two separate appeals on September 26, 1988. At No. 2774 Philadelphia 1988, he appeals from that portion of the PCHA order entered September 21, 1988 which denied his plea withdrawal. At No. 2775 Philadelphia 1988, he appeals from the judgment of sentence of September 25, 1984, alleging a Rule 1100 violation.

In his submitted brief in this court, Terreforte presents no argument challenging the order extending the time for commencement of trial. Since this argument has not been carried forward in the brief, we need not consider it on appeal. The Rule 1100 contention has been abandoned. Giant Markets, Inc. v. Sigma Marketing Systems, Inc., 313 Pa.Super. 115, 126, n. 2, 459 A.2d 765, 771, n. 2 (1983); Upper Gwynedd Twp. Auth. v. Roth, 113 Pa.Cmwlth. 239, 245, n. 9, 536 A.2d 875, 878, n. 9 (1988). Moreover, Terreforte openly admits that his Rule 1100 claim is “weak to the point of frivolity” and “not worth pursuing.” Brief for Appellant at pp. 11, 13.

I would affirm the judgment of sentence at No. 2775 Philadelphia 1988, since the only issue raised in that appeal is, by Terreforte’s own admission, totally devoid of merit.

Where I differ with my esteemed colleague, Judge Popovich, at appeal No. 2774 is on the focus of our review. I read the majority opinion as concentrating on the actions of the trial judge. I prefer to focus on whether ineffective assistance has, in fact, been shown.

Terreforte argues that his plea counsel was ineffective in permitting him to plead guilty under circumstances that placed the preservation of his Rule 1100 claim at risk. The ineffectiveness of counsel is shown where there is merit to the underlying claim, the course chosen by counsel does not have a reasonable basis, and the defendant shows prejudice. Commonwealth v. Graham, 522 Pa. 115, 560 A.2d 129 (1989). Where the prejudice question is resolvable, we need not inquire into whether the action of counsel had a reasonable basis, and the ineffectiveness claim can be dismissed. Commonwealth v. Pierce, 515 Pa. 153, 163, 527 A.2d 973, 977 (1987).

Once Terreforte concedes, as he must, that there is absolutely no merit to the Rule 1100 claim, common sense dictates that he could not have been prejudiced by his then-inability to pursue the claim following a guilty plea.

Since I find no prejudice to the defendant, since the plea was voluntary and entered with knowledge of the charges, and since there is not even a suggestion of manifest injustice, I would also affirm that portion of the order of September 21, 1988 which denied PCHA relief.

Hence, this dissent.

      . 42 Pa.C.S.A. §§ 9541-9551 (Purdon 1982), amended by 42 Pa.C.S. §§ 9541-9546.

      . For the rape charge, appellant was sentenced to seven and one-half to fifteen years imprisonment. For the involuntary deviate sexual intercourse charge, appellant was sentenced to five to ten years imprisonment to run consecutively with the rape sentence. The sentence for possession of an instrument of crime was suspended.

      . While we are astonished by the lower court’s acceptance of the conditional guilty plea, we are equally bemused by the prosecution’s silent endorsement of the illegal plea.

      . At the very least, the PCHA court should have granted the appellant permission to appeal nunc pro tunc the original denial of his petition to withdraw his plea, rather than simply deny the petition.

      . The learned Judge Johnson, in his dissent, states: "I read the majority opinion as concentrating on the actions of the trial judge. I prefer to focus on whether ineffective assistance has been shown.” Dissent at 485. However, we do address the question of ineffective assistance of counsel, but our focus is on counsel’s ineffectiveness as it relates to the appellant’s entry of a conditional plea — a plea which pursuant to Thomas, supra, is void (not voidable). We comment upon the actions of the trial judge not only because his acceptance of the plea perpetuated the error, but also because we are astounded that he would allow such a plea to be entered.
      The dissent, focusing upon the appellant’s admittedly meritless Rule 1100 issue, declares that "common sense dictates that he could not have been prejudiced by his then inability to pursue the claim following a guilty plea.” Dissent at 485. However, the prejudice element of the ineffectiveness claim is not his inability to pursue the Rule 1100 claim. Rather, the prejudice element is his decision, based on the erroneous advice of counsel to enter an invalid conditional guilty plea, to foregoing his right to a jury trial. The appellant stated that had he known he could not pursue the Rule 1100 claim after entry of a guilty plea, he would not have entered the plea.
      Moreover, we note that the dissent has not even addressed what the majority believes to be the central issue of this case: whether the appellant’s plea was voluntary — a fact illuminated by the dissent’s omission of a discussion of the withdrawal of appellant’s conditional guilty plea. Unlike the dissent, we have not addressed the Rule 1100 issue since only the voluntariness of the plea, the legality of the sentence, the jurisdiction of the court and the competency of counsel may be challenged on appeal following the entry of a guilty plea. Montgomery, 401 A.2d at 319. See also footnote 5, infra.

      . The Commonwealth argues that appellant should not be allowed to withdraw his plea since appellant was not prejudiced by entering a conditional plea. The Commonwealth asserts the prejudice is alleviated by the PCHA court’s granting of permission to appeal the Rule 1100 issue nunc pro tunc. However, we find that the Rule 1100 issue is not properly before us.
      Since we have granted appellant’s petition to withdraw his plea, the appeal nunc pro tunc of the Rule 1100 issue is interlocutory. If we had denied appellant’s petition to withdraw his plea, we would still be precluded from reviewing the Rule 1100 issue nunc pro tunc since the issue could not survive the entry of his guilty plea. Accordingly, the PCHA court’s granting of an appeal nunc pro tunc of the Rule 1100 issue was erroneous. Under either scenario, we must quash the appeal nunc pro tunc of the Rule 1100 issue.