author: JOHNSON, Judge:

text:
    577 A.2d 1349
    Marlene DRANZO and John Dranzo Her Husband, Appellants, v. Kenneth L. WINTERHALTER, Individually and Kevin Scott Wightman, Individually and as Agent for Gary Kossel, and Vicky Kossel, t/d/b/a Vic’s Pizza, and Gary Kossel, and Vicky Kossel, t/d/b/a Vic’s Pizza, a Business Entity and Individually. Marlene DRANZO and John Dranzo Her Husband v. Kenneth L. WINTERHALTER, Individually and Kevin Scott Wightman, Individually and as Agent for Gary Kossel, and Vicky Kossel, t/d/b/a Vic’s Pizza, and Gary Kossel, and Vicky Kossel, t/d/b/a Vic’s Pizza, a Business Entity and Individually. (Two Cases) Appeal of Kevin Scott WIGHTMAN. (Two Cases) Appeal of Gary KOSSEL and Vicky Kossel, t/d/b/a Vic’s Pizza, and Gary Kossel and Vicky Kossel t/d/b/a Vic’s Pizza, a Business Entity and Individually. Sheri DRANZO, a Minor by John DRANZO, Her Parent and Natural Guardian, and John Dranzo, Individually v. Kenneth L. WINTERHALTER, Individually and Kevin Scott Wightman, Individually and as Agent for Gary Kossel, and Vicky Kossel, t/d/b/a Vic’s Pizza, and Gary Kossel, and Vicky Kossel, t/d/b/a Vic’s Pizza, a Business Entity and Individually. (Two Cases) Appeal of Gary KOSSEL and Vicky Kossel, t/d/b/a Vic’s Pizza, a Business Entity and Individually.
    Superior Court of Pennsylvania.
    Argued April 3, 1990.
    Filed June 13, 1990.
    Reargument Denied Aug. 13, 1990.

      Anthony J. Seneca, Washington, for Dranzo.
    Timothy D. Appelbe, Pittsburgh, for Wightman.
    John M. Giunta, Pittsburgh, for Kossel.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   JOHNSON, Judge:

This is a consolidated appeal from the judgment entered in favor of plaintiffs Marlene Dranzo and John Dranzo, her husband (Dranzo). We affirm on all issues raised by the appellants and cross-appellants.

The incident giving rise to this litigation was an automobile accident occurring shortly after 7 p.m. on December 22, 1986 in Somerset Township at or near the intersection of Route 917 and Circle Road. Defendant Kenneth L. Winter-halter was driving a truck west on Circle Road and approaching its intersection with Route 917, a through highway. Defendant Kevin Scott Wightman, who was employed by defendants Gary Kossel and Vicky Kossel, trading as Vic’s Pizza, was driving north on Route 917 in a Chevrolet Nova. Marlene Dranzo was driving south on Route 917 with her daughter Sheri as passenger in her Chevrolet Celebrity. The truck driven by Winterhalter and the Chevrolet Nova driven by Wightman collided at the intersection. Immediately thereafter, the Wightman car veered into the southbound lane of Route 917 and collided with the Dranzo car. Both Marlene Dranzo and her daughter Sheri sustained injuries.

The complaint sought damages for Marlene and for Sheri Dranzo’s injuries and for John Dranzo’s loss of consortium as husband of Marlene Dranzo. The case was tried by jury in Washington County before the Honorable Samuel L. Rodgers. Prior to trial the court denied a motion brought by the Kossels for a change of venue because Dranzo was employed by the Court of Common Pleas of Washington County. The court granted the Dranzos’ pre-trial motion to exclude testimony of an expert witness that the injuries would not have occurred had the Dranzos been wearing seat belts. Defendant Winterhalter failed to respond to the complaints, and default judgments were entered against him. Following trial the jury returned verdicts on December 16, 1988 in favor of Sheri Dranzo and her father John Dranzo in the amount of $40,070.90 and in favor of Marlene Dranzo and John Dranzo in the amount of $136,173.40. The jury attributed eighty per cent of the causal negligence to Winterhalter and twenty per cent to Wightman and his employer the Kossels. Wightman and the Kossels filed post-trial motions seeking a new trial on the issue of liability, which was denied by the court en banc on July 21, 1989. By the same order the court en banc also awarded the Dranzos delay damages pursuant to Pa.R.C.P. 238.

On appeal the Dranzos seek greater damages either by additur or by a new trial on the damage issue only. Defendants Wightman and the Kossels challenge the denial of the change of venue, the preclusion of seat belt evidence and assign error to aspects of the jury charge concerning assured clear distance, sudden emergency and circumstantial evidence. They also question the constitutionality of the delay damage rule. Finding no merit to these issues, we affirm the order appealed from in all respects.

First we address Dranzo’s contention that the trial court abused its discretion in failing to order an additur to the verdict amount, or, in the alternative, in failing to set aside the jury’s verdict and to order a new trial limited to the issue of damages. The duty to assess damages is squarely within the province of the jury, who as the finders of fact weigh the veracity and credibility of the witnesses and their testimony. Cree v. Horn, 372 Pa.Super 296, 539 A.2d 446 (1988), appeal denied 519 Pa. 660, 546 A.2d 621 (1988).

Our standard upon reviewing a trial court’s decision that damages were adequate and that it should thus refuse to grant a new trial is extremely narrow:

It is well established law in the Commonwealth that a decision to grant a new trial because of any impropriety in the verdict is well within the discretion of the trial court and in the absence of a clear abuse of its considerable discretion will not be disturbed on appellate review. Reitz v. Donise Enterprise, 319 Pa.Super. 76, 465 A.2d 1060 (1983). Our court has set forth the following criteria to determine when a verdict can be set aside as inadequate:
A verdict is set aside as inadequate when it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. If the verdict bears a reasonable resemblance to the damages proved, the appellate court will not disturb the verdict merely because the damages are less than the reviewing court might have awarded, (citations omitted).
Slaseman v. Myers, 309 Pa.Super. 537, 540-541, 455 A.2d 1213, 1215 (1983).

Smith v. Barker, 368 Pa.Super. 472, 475-476, 534 A.2d 538, 535 (1987), appeal denied 520 Pa. 577, 549 A.2d 137 (1988). To support the grant of a new trial for inadequacy of the damage award, the injustice of the verdict “should stand forth like a beacon.” Cooley v. Jefferson Bank, 355 Pa.Super. 1, 4, 512 A.2d 713, 714 (1986) (citing numerous cases).

As the Honorable Samuel J. Rodgers wrote in his opinion of 7-21-89, Marlene Dranzo suffered severe injuries in this accident, primarily a fracture to her left hip and her left heel. She claimed that she still has pain, that she has a permanent limp and that her earning capacity has been permanently diminished. The parties stipulated to the amount of medical expenses and wage, loss, amounting to a total of $23,416.01. The jury returned a total verdict of $118,736.01 for Marlene Dranzo, damages in the amount of $27,000.00 for daughter Sheri Dranzo, and damages in the amount of $5,000.00 for John Dranzo for loss sustained as Marlene’s husband and in the amount of $13,070.90 for loss sustained as Sheri’s father. N.T., February 9-15, 1989 at 636.

The trial court wrote:

No doubt the injuries suffered by Mrs. Dranzo may well have supported a considerably higher verdict, but the fact remains that all of this evidence was presented to the jury, and this court cannot say that the amount of the verdict shocks the conscience of the court. Generally, the consortium claim of her husband, John Dranzo, rests on the oral testimony of these plaintiffs, and essentially, the amount awarded must be determined by the good sense of the jury upon consideration of all the evidence.

Opinion, 7-21-89 at 17. We agree with the trial court. Our careful review of the record convinces us that no injustice has been done in this case. We conclude that the trial court did not abuse its discretion in refusing to grant a new trial on the issue of damages.

Dranzo’s allegation that the court should have added to the jury verdict (additur) must fail. As we stated above, it is the jury’s province to determine amount of damages. The court determined that the award of damages was acceptable. Therefore, it could not have been required to add to the verdict. Dranzo relies upon Svoboda et ux. v. City of Pittsburgh et al., 34 D. & C. 47 (1938) for the proposition that a court may add to a verdict in certain circumstances. That case held that, where a court decides that a new trial was warranted, and if the defendant then agrees to pay the additional damages, the court should not be prevented from allowing the defendant to pay in lieu of a new trial, for then a new trial would have no purpose. The present case does not fit this scenario. Here, the court decided that the damage award was proper, and Dranzo does not allege that the defendants had agreed to pay additional damages but were refused by the court. Hence, Dranzo’s entire line of reasoning regarding additur is inapplicable to the present case.

Next we will address the issues raised by Wightman and adopted by the Kossels as their issues. Wightman alleges that the court abused its discretion in denying his motion for a change of venue. Wightman argues that because Dranzo was employed as the Deputy Clerk of Courts for the Court of Common Pleas of Washington County, because Barbara Gibbs, the Clerk of Courts, was to be called as a witness, and because Dranzo was acquainted with the judge, a fair trial could not be held in Washington County. This claim fails. Pa.R.C.P. 1006 provides:

(2) Where, upon petition and hearing thereon, the Court finds that a fair and impartial trial cannot be held in the County for reasons stated of record, the Court may order that the action be transferred____

Pa.R.C.P. 1006.

A decision on a petition for a change of venue is within the trial court’s discretion. Winpenny v. Winpenny, 296 Pa.Super. 299, 442 A.2d 778 (1982). A change of venue is not granted lightly or without real necessity, and the applicant bears the burden of proving that the change of venue is necessary. Pennsylvania Power & Light Co. v. Gulf Oil Corporation, 270 Pa.Super. 514, 411 A.2d 1203, 10 A.L.R.4th 1025 (1979), cert. denied 446 U.S. 966, 100 S.Ct. 2943, 64 L.Ed.2d 825 (1980). The defendants’ written motion for a change of venue listed Dranzo’s employment with the Court of Common Pleas as the sole reason for the request. No testimony was offered, nor did the defendants attempt in any other way to prove that any of the other factors would bias or prejudice the trial. The defendants did not meet their burden of proving that prejudice would inure and that change of venue was necessary. The trial court did not abuse its discretion in denying the petition for change of venue.

Next Wightman claims that the trial court erroneously excluded evidence that Dranzo and her daughter were not wearing seat belts. Wightman argues that 75 Pa.C.S. § 4581(e), the statute precluding such evidence, is an unconstitutional exercise of the police power. Section 4581 requires front seat occupants of passenger cars, trucks or motor homes to wear seat belts. Section 4581(e), however, provides in pertinent part:

In no event shall a violation or alleged violation of this subchapter be used as evidence in a trial of any civil action; nor shall any jury in a civil action be instructed that any conduct did constitute or could be interpreted by them to constitute a violation of this subchapter; nor shall failure to use a ... sáfety seat belt system be admissible as evidence in the trial of any civil action____

75 Pa.C.S. § 4581(e).

Preliminarily, we reject Dranzo’s position that Wightman failed to preserve his constitutional argument by not notifying the Attorney General “promptly” pursuant to Pa.R.C.P. 235. The trial court granted Dranzo’s pre-trial motion'in limine to exclude evidence that Dranzo and her daughter were not wearing seat belts. In post-trial motions Wightman renewed an objection to the preclusion of the “seat belt defense” by challenging the constitutionality of 75 Pa.C.S. § 4581(e). At this point Wightman complied with Rule 235 by notifying the Attorney General. We find no interpretation of Rule 235 construing the promptness provision as requiring notification the first time the underlying issue is raised at trial, as Dranzo argues. To the contrary, it has been held that Rule 235 was satisfied where the trial court did not address the constitutional issue and where the Attorney General was duly notified when the issue was raised on appeal. Commonwealth v. Stein, 487 Pa. 1, 406 A.2d 1381 (1979); James v. Southeastern Pa. Transit Authority, 312 Pa.Super. 512, 459 A.2d 338 (1983) reversed on other grounds in 505 Pa. 137, 477 A.2d 1302 (1984). Therefore, we conclude that Wightman substantially complied with Rule 235, and we will address his constitutional argument.

Wightman’s challenge is to a legislatively established rule of evidence. It is well settled that the legislature of a state has the power to prescribe new rules of evidence, providing that they do not deprive any person of his constitutional rights. See 29 AmJur2d § 9 (1967). Enactments of the General Assembly enjoy a strong presumption of constitutionality with all doubts resolved in favor of sustaining the constitutionality of the legislation. Insurance Adjustment Bureau v. Insurance Commissioner, 108 Pa.Commw. 418, 530 A.2d 132, (1987), reversed on other grounds, 518 Pa. 210, 542 A.2d 1317 (1987). A party challenging the constitutionality of a statute has a heavy burden of rebutting the presumption of constitutionality and showing that the statute clearly, plainly and palpably violates either the Federal or Pennsylvania constitutions. Id.

We interpret Wightman’s argument to be that section 4581(e) is an unconstitutional exercise of the legislative police power because it deprives him of due process of law. The state’s police power, pursuant to which it regulates private rights in the public interest, is far-reaching; however, like every substantive power exercised by the states, it is circumscribed by the due process clause. Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983). Wightman does not specifically state whether his alleged due process denial is substantive or procedural in nature. Because he alleges no specific procedural deprivation, we will address this as a substantive due process challenge. See Whitling v. Commonwealth, Unemployment Compensation Board of Review, 95 Pa.Commw. 500, 504 n. 8, 505 A.2d 1101, 1103, n. 8 (1986) appeal denied 514 Pa. 640, 523 A.2d 346 (1986).

Wightman agrees that no fundamental right is at issue here. Absent a fundamental right, the standard of review for a substantive due process challenge is whether the statute at issue has a reasonable basis, “whether it was irrational for the law to have been passed at all,____that there is no relationship between the statute and a legitimate state interest.” Morris v. Public School Employees’ Retirement System, 114 Pa. Commw. 369, 378, 538 A.2d 1385, 1389 (1988). A law that purports to be an exercise of police power must not be arbitrary, unreasonable or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the object sought to be attained. Commonwealth v. Zasloff, 338 Pa. 457, 13 A.2d 67 (1940). It is the prerogative of the legislature, and not of the courts, to resolve matters of public policy. Commonwealth v. Knowles, 373 Pa.Super. 203, 540 A.2d 938 (1988), appeal denied 520 Pa. 614, 554 A.2d 507 (1988). It is the prerogative of the courts to decide whether the legislature has overstepped its power by violating constitutional restraints. Zasloff, supra.

The central premise of Wightman’s argument is that the legislative purpose at issue is the purpose of promoting use of seat belts. It is this purpose that he analyzes in order to demonstrate that section 4581(e) is irrational in relation to it and thus is unconstitutional. While clearly the purpose of 4581 generally is to get people to use seat belts, 4581 generally is not at issue here. Rather, it is the purpose of the legislature’s creation of the evidentiary rule in (e) that is at issue. Wightman provides no analysis of the purpose of this provision, let alone for the rational relation it bears to the statute. We are left with the presumption of constitutionality, which Wightman has not overcome.

While Wightman spends considerable time discussing what courts in other jurisdictions have written about the “seat belt defense” as well as what Pennsylvania courts had written before the enactment of section 4581, none of this is relevant to the constitutional question raised by Wightman himself, whether Pennsylvania’s 75 Pa.C.S. § 4581(e) is rationally related to the purpose for which it was enacted. Exclusion of evidence that may preclude a defense could raise many interesting legal questions, none of which are at issue here and none of which, according to Wightman’s own brief, raise constitutional concerns. See Annotation, Automobile Occupant’s Failure to Use Seat Belt as Contributory Negligence, 92 A.L.R.3d 9 (1979). We conclude that Wightman’s challenge to the constitutionality of 4581(e) must fail.

Next Wightman challenges five aspects of the court’s instruction to the jury. First, Wightman alleges that the court erred in charging the jury on the comparative negligence statute without also charging that the plaintiffs would be entitled to recover the full amount of the verdict against any defendant found liable. The comparative negligence statute provides:

(b) Recovery against joint defendant; contribution.— Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

42 Pa.C.S. § 7102. The second and third sentences of the statute relate to the fact that joint tortfeasors are jointly and severally liable for the plaintiff’s damages. See Tindal v. SEPTA, 385 Pa.Super. 94, 560 A.2d 183 (en banc) (1989). The court recited to the jury verbatim the first sentence of the passage above. N.T., February 15, 1989 at 622. Wight-man argues that the court should have given the jury the following submitted point for charge:

You should consider that your finding of any percentage of causative fault against any defendant will result, under our law, in that defendant being responsible to the plaintiff or plaintiffs for the entire amount of any damages you might decide to award.

R.R. at 378a. Wightman’s Proposed Supplemental Points for Charge, No. 2.

We agree with the trial court that the collectability or uncollectability of a judgment, the operation of joint and several liability, is simply not relevant to the jury’s consideration of whether the defendants were causally liable and in what percent. As the court pointed out, neither the court nor the jury can say with assurance how much of the verdict rendered, if any, any one of the joint tortfeasors will in fact pay. The trial court noted that Wightman concedes that telling the jury that defendant Winterhalter was without liability insurance would have been reversible error. Collectability of a judgment has no bearing upon liability. Wightman’s suggestion that, had the jury been instructed on joint and several liability, they might have reached a different conclusion regarding cause of the accident is precisely the reason why the court was correct in refusing the instruction. The jury could have been confused, and the court properly prevented this. We find no error in the court’s charge on this point.

Wightman’s next allegation of error is that the following charge to the jury was improper because it invited the jury to draw inferences about the numerical speed that Wightman was driving based upon certain facts that had been testified to at trial:

In this case, you have heard what the law calls circumstantial evidence. Circumstantial evidence consists of proof of facts of circumstances from which it is reasonable to infer the existence of another fact. For example, a man may very well testify whether it was snowing at a particular time because he looked outside and saw the snow falling. This is direct evidence. It may be, however, that he did not actually see the snow coming down, but if he gets up one morning and looks and sees fresh snow where there was none the night before, he can testify to these facts and the jury may infer that it snowed during the night. The jury can consider circumstantial evidence and you should give it whatever weight you believe it deserves.
In this case, you have heard the oral testimony of some of the parties, and an eye witness as to how this accident occurred. This type of testimony is direct evidence. In addition, you have heard testimony about the location and position of the vehicles after the accident, the location and extent of the damage to the vehicles involved, the location and length of tire or skid marks north of the intersection. This evidence is circumstantial evidence which you may and should consider, along with all of the evidence, in determining how this accident happened and the extent of the causal negligence, if any on the part of the defendants.

N.T., February 15, 1989 at 594-595. At no point did the trial judge invite the jury to use the circumstantial evidence to establish the speed of the vehicle in a numerical value, which would, as Wightman states, require expert opinion. Circumstantial evidence can be used by a jury to determine whether the vehicle was traveling at a safe and appropriate speed. Carol v. Kurz, 255 Pa.Super. 198, 386 A.2d 577 (1978). The trial court’s circumstantial evidence charge was proper.

Wightman avers that there was insufficient evidence to support a charge on the assured clear distance rule. This conclusion is not supported by the record. The assured clear distance rule, codified at 75 Pa.C.S. § 3361, requires that the driver maintain such control as will enable him to stop and avoid obstructions that fall within his vision, Jeng v. Witters, 452 F.Supp. 1349 (MD.Pa.1978), affirmed General Motors v. Cheng, 591 F.2d 1334 (1979), and requires the driver travelling in darkness to keep his vehicle under control so that he can always stop within the range of his headlights. Id. There was ample evidence to allow a jury to conclude that Wightman was speeding and thus going too fast to be able to stop within the assured clear distance. The facts presented at trial were sufficient to support the court’s charge.

Wightman’s next claim of error is^that the use of the word “emergency” in the following statement causes the statement to contradict the court’s subsequent correct charge on the sudden emergency doctrine:

Even though an operator may have the right-of-way, he must still exercise the duty of care generally required of operators at an intersection. That is, they must maintain a proper lookout and have their vehicle under such control that it can be stopped upon any emergency reasonably likely to arise.

N.T., February 15, 1989 at 575 (emphasis added). Wight-man’s claim is totally without basis. The above is a correct statement of the law. A driver must anticipate emergencies reasonably likely to arise. Wilson Freight Forwarding Co. v. Seal, 367 Pa. 18, 79 A.2d 648 (1951); see Meyer, Law of Vehicle Negligence in Pennsylvania, §§ 1.50, 20.-07. The sudden emergency doctrine creates an exception to this general rule. It excuses a driver who suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to assess the danger and to respond appropriately. McKee by McKee v. Evans, 380 Pa.Super. 120, 551 A.2d 260 (1988) appeal denied in Carroll by Carroll v. Evans, 522 Pa. 600, 562 A.2d 824 (1989). We find no error in the court’s instruction to the jury.

The last of Wightman’s claims of error to the jury charge is that the court erred in charging that Wightman had the burden of proving that he was confronted by a sudden emergency in a context that created an impression that, if Wightman failed to meet that burden, he could be found liable, even if the plaintiffs failed to meet their burdens of proof on the issues of negligence and legal cause. The court clearly stated that “the plaintiffs have the burden of proving those contentions which entitle them to relief. When a party has a burden of proof on a particular issue, his contentions on that issue must be established by a fair preponderance of the evidence.” N.T. at 582. The court charged that Wightman, in order to successfully establish the sudden emergency defense, must establish the alleged emergency by a preponderance of the evidence. N.T. 2-15-89 at 579. Our thorough review of the charge does not bear out Wightman’s claim that the context of these statements distorts their meaning. This claim has no merit.

Finally, Wightman argues that the newly revised Pa.R.C.P. 238, which authorizes imposition of delay damages, is unconstitutional and that therefore the trial court’s award of delay damages was error. This court has upheld the constitutionality of new Rule 238 in Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 568 A.2d 1272 (1990). As we wrote in that case, any further determination on this issues can only emanate from the Supreme Court.

For all the foregoing reasons, we affirm the judgment of July 31, 1989.

Judgment affirmed.


source: Caselaw Access Project

author: WIEAND, Judge: JOHNSON, Judge,

license: Public Domain

text:
    577 A.2d 1358
    COMMONWEALTH LAND TITLE INSURANCE COMPANY and T.A. Title Insurance Company v. John DOE, d/b/a Martin Krasner and Harriet Krasner, Thomas Jefferson University, Martin Krasner and Harriet Krasner, h/w and Mellon Bank East (N.A.). Appeal of T.A. TITLE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1989.
    Filed July 6, 1990.

      William J. Barker, Jr., Philadelphia, for appellant.
    Neil S. Witkes, Philadelphia, for Commonwealth Land Title, appellee.
    Before BROSKY, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

The dispute in this appeal is between two innocent victims of fraud, both of whom sought to recoup their losses from a fund which was inadequate to satisfy both claims.

On June 21, 1988, T.A. Title Insurance Company (T.A. Title) was involved as title insurance company in a closing for real estate situated at 128-130 South Street, Philadelphia, which purportedly had been sold by or on behalf of Harriet and Martin Krasner. At the closing, T.A. Title delivered a check for $150,000 to a person representing himself to be the agent of the sellers. The check was deposited in an account which had been opened in the names of Harriet and Martin Krasner at Mellon Bank. On July 27, 1988, the sum of $37,000 was withdrawn from this account, leaving a balance in the account at that time of $114,010.30.

On July 29, 1988, Commonwealth Land Title Insurance Company (Commonwealth Land Title) was involved as title insurance company in a closing for premises known as 130 South Eleventh Street, Philadelphia. This real estate also was represented to have been sold by Harriet and Martin Krasner. At the closing, Commonwealth Land Title delivered a check for $284,686.29 to a person purporting to represent the sellers. This check was also deposited in the “Krasner” account at Mellon Bank. Following this deposit, the additional sum of $50,000 was withdrawn from the account, leaving a balance of $348,696.59.

It was subsequently discovered that the purported transfers of title had taken place without the knowledge of the true owners and that the deeds had been forged. The title insurance companies were notified of this development on August 8, 1988. Commonwealth Land Title acted promptly to seize the funds remaining in the Mellon Bank account. On August 10, 1988, it filed a fraudulent debtor’s attachment against the account. T.A. Title did not take action until September 15, 1988, when it moved to intervene in the proceedings which had been instituted by Commonwealth Land Title. Intervention was granted on September 22, 1988, when the trial court also entered an order permitting Commonwealth Land Title to proceed against all moneys in the account in excess of $114,010.30, which was placed in escrow to await an adjudication of the respective rights of Commonwealth Land Title and T.A. Title.

On October 14, 1988, a hearing was held on the issue of the distribution to be made of the monies which had been placed in escrow. At that time, the agreed facts were recited to the court by counsel. Following argument by counsel and based on the agreed facts, the trial court, on October 21, 1988, entered its decision awarding to Commonwealth Land Title from escrowed funds the sum of $55,-101.78 and to T.A. Title the sum of $58,999.52. The effect of the trial court’s order was to permit Commonwealth Land Title to recoup its loss in full from the account opened at the Mellon Bank and to award to T.A. Title the balance of the funds in the account. A motion for post-trial relief in the nature of exceptions, pursuant to Pa.R.C.P. 227.1, was filed by T.A. Title and denied on March 16, 1989. Judgment was entered in accordance with the court’s order of distribution on April 25, 1989, and this appeal by T.A. Title followed on May 3, 1989.

Commonwealth Land Title argues, inter alia, that T.A. Title’s appeal should have been taken from the trial court’s order of October 21, 1988, and that, therefore, an appeal taken on May 3, 1989 was untimely and improper. Insofar as the respective rights of Commonwealth Land Title and T.A. Title are concerned, however, it is clear that the parties submitted their respective claims to the trial court on stipulated facts, and that the proceedings held by the court were in the nature of a trial without jury on an agreed statement of facts. Therefore, a motion for post-trial relief in the nature of exceptions to the court’s decision was not inappropriate, and this Court has jurisdiction to entertain the appeal.

With respect to the first $37,000 withdrawn from the account at the Mellon Bank, it is clear that the transaction occurred before any Commonwealth Land Title money had been placed in the account. This withdrawal, therefore, involved only funds coming from T.A. Title. Because this withdrawal was of funds belonging to T.A. Title, it must suffer the loss of $37,000. Commonwealth Land Title cannot be required to share in this loss.

“Priority between attachments and competing liens or claims, or priority among rival attachments, depends generally upon their priority in time, which is determined by the days on which their processes were executed.” 17 Std.Pa.Prac.2d, Attachment, Generally'§ 94:5 (1983). See: Rice v. Walinszius, 12 Pa.Super. 329 (1900). The vigilant debtor is to be rewarded not only for his own sake but as a matter of public policy. Philadelphia National Bank v. Hilgert, 3 Penny 437, 440 (Pa.1883). Thus, a fraudulent debtor’s attachment takes priority over a lien created several days later. Keystone State Corp., et al. v. Union Indemnity Co., et al., 43 Pa. D. & C. 69, 78-79 (Phila.1941).

In the instant case, the record is clear that Commonwealth Land Title’s attachment was issued more than a month before T.A. Title acted to assert its rights by intervening in the garnishment proceedings which had been commenced by Commonwealth Land Title. Therefore, Commonwealth Land Title’s attachment was entitled to priority over the claim of T.A. Title.

Appellant argues that because its check had been forged, title to the funds in the Krasner account at the Mellon Bank did not pass. Consequently, it argues, the funds remaining in the account were owned by it and Commonwealth Land Title and that the application of equitable principles requires a pro rata distribution. This argument is of no avail.

In the first place, “equity aids the vigilant, and not those who slumber on their rights.” Witmer v. Exxon Corp., 260 Pa.Super. 537, 556 n. 19, 394 A.2d 1276, 1286 n. 19 (1978), aff'd, 495 Pa. 540, 434 A.2d 1222 (1981). In this case, it was Commonwealth Land Title which acted diligently to prevent additional withdrawals from the account. T.A. Title did not act until an additional month had passed after Commonwealth Land Title’s attachment had effectively seized the account.

If T.A. Title is correct that title to the funds did not pass, it is nevertheless clear that its funds were commingled with funds of Commonwealth Land Title. In order to recover its funds, T.A. Title had to be able to trace its funds, and only funds so traced could be recovered. In attempting to trace funds, the rule in Pennsylvania is “first in, first out.” Pursuant to this rule, “the legal presumption is that the moneys were paid out in the order in which they were paid in, and [the parties claiming ownership] are equitably entitled to any allowable preference in the inverse order of the times of their respective payments into the fund.” Empire State Surety Co. v. Carroll County et al., 194 F. 593, 605 (8th Cir.1912). See: In re Woods Estate, 350 Pa. 290, 294, 38 A.2d 28, 30 (1944); Toll-Barkan Co. v. Toll, 193 Pa.Super. 221, 225, 164 A.2d 36, 38 (1960); Page v. Wilson, 150 Pa.Super. 427, 433, 28 A.2d 706, 709 (1942); Fischbach & Moore, Inc. v. Philadelphia National Bank, 134 Pa.Super. 84, 91-92, 3 A.2d 1011, 1014 (1939). This rule, although criticized by some legal scholars, remains the law in Pennsylvania.

Thus, even if Commonwealth Land Title’s attachment had been ineffective to seize funds in the account which belonged to T.A. Title, the proceedings were effective to seize funds of Commonwealth Land Title which remained in the account. Because the funds which had been withdrawn were funds belonging to T.A. Title, and because funds of Commonwealth Land Title had not been withdrawn, all of the funds advanced by Commonwealth Land Title remained in the account and could be recovered.

Thus, whether the funds in the “Krasner” account were attached as funds belonging to a third person or whether the commingled funds remained the property of the drawers of the checks, the trial court properly held that Commonwealth Land Title was entitled to a preference which enabled it to recover in full the funds which it had supplied.

Judgment affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

I agree with my esteemed colleagues that the action of the trial judge, the Honorable Albert W. Sheppard, Jr., should not be disturbed. However, I would find that the orders of October 21, 1988 disposed of all of the issues between the parties and were both final and appealable. I find Commonwealth Land Title Insurance Company’s argument regarding T.A. Title Insurance Company’s failure to file a timely appeal persuasive. I would dismiss this appeal as having been brought too late and would not address those issues relating to enforcement of money judgments. Therefore, I must respectfully dissent.

T.A. Title Insurance Company (T.A. Title), in its Reply Brief, argues that the trial court’s orders of October 21, 1988 “embody the Court’s adjudication of the merits of this case based upon a stipulation of facts, which adjudication requires the aggrieved party to file exceptions before taking an appeal.” I find no support for this assertion in the record.

To begin, the trial court unequivocally declared that the first order of October 21, 1988 was pursuant to a “petition and rule” proceeding. Judge Sheppard wrote:

Preliminarily, analysis of the October 21st Orders as separate entities leads to the conclusion that the ... (FIRST) Order, in and of itself, was a final order pursuant to a “petition and rule” proceeding. As such, the Exceptions to this “FIRST” Order are procedurally improper and will not be considered by this Court. See, Haegele v. Pennsylvania General Ins., Co. [sic], 330 Pa.Super 481, 479 A.2d 1005 (1984); Kennedy v. Frank L. Black, Jr., Inc., supra. Extensive discussion of this point is not necessary. Suffice it to say that reference to the preamble of the FIRST Order ... and the transcript of the October 21st hearing ... and the procedural posture of the matter ... demonstrates that this FIRST Order was entered to resolve claims arising from a petition and rule to show cause.

Memorandum, March 16, 1989, page 16. (emphasis in the original, footnote omitted).

T.A. Title did not even file its complaint in this action until December 16, 1988, long after the court’s October 21, 1988 orders. The post-trial exceptions filed by T.A. Title on October 31, 1988 purportedly in pursuance of Pa.R.C.P. 227.1, responded only to the October 21st orders. T.A. Title had not responded to earlier orders of September 22, 1988 (requiring filing of memorandum by both title companies concerning disposition of certain escrow funds) and October 6, 1988 (granting intervention but denying T.A. Title’s motion to stay execution).

The majority asserts that the parties to this dispute “submitted their respective claims to the trial court on stipulated facts.” There is nothing in the certified record to support this. While it is true that both Commonwealth and T.A. Title submitted memoranda of law to the trial court at various times and also participated in “legal argument” on October 14 and 21, 1988, I find nothing in the record which could arguably be deemed to be a stipulation either as to facts or to law. While counsel may have “recited” certain statements to the court, these “recited facts” are not found in the certified record.

My review of the October 21, 1988 orders causes me to conclude that they, together, constitute a final determination of the Commonwealth’s and T.A. Title’s competing claims to the proceeds of the Mellon Account. As such, the orders were final and appealable. There was no trial or similar proceeding; rather, the claims were resolved following petition and rule and the oral argument of counsel. The orders finally determined what portion of the funds in the Mellon Account should be paid over to each of the parties. The orders resulted in the disbursement of all the funds in the Mellon Account.

The second October 21, 1988 order provides as follows:

AND NOW, this 21st day of October, 1988, upon consideration of this Court’s Order of October 6, 1988, the September 22, 1988, Order of Judge Gafni, and all other matters of record, and after hearing it is hereby ORDERED:
1. Commonwealth Land Title Insurance Company (“Commonwealth”) shall be entitled to, and permitted to retain from the $114,010.30 presently held in escrow (“escrow funds”), the amount of $55,010.78, said amount (together with the amount of $238,829.59 turned over to Commonwealth and not part of the escrow funds pursuant to a contemporaneous Order being entered this date) deemed to include $5,715.00 in costs expended by Commonwealth to obtain the pertinent bond and $3,439.08 in interest.
2. Commonwealth shall, as soon as practicable, pay over to T.A. Title Insurance Company (T.A.) the sum of $58,999.52 representing $58,295.30 principal and $704.22 in interest.
BY THE COURT,
s/ Sheppard
ALBERT W. SHEPPARD, JR., J.

This order clearly disposed of T.A. Title’s claim to any portion of the Mellon Account. In my view, the order is both final and appealable. Newman v. Thorn, 359 Pa.Super. 274, 278, 518 A.2d 1231, 1233 (1986); Lansdowne v. G.C. Murphy Co., 358 Pa.Super. 448, 452, 517 A.2d 1318, 1320 (1986); Praisner v. Stocker, 313 Pa.Super. 332, 336, 459 A.2d 1255, 1258 (1983). Since the October 21, 1988 orders were both final and appealable, T.A. Title was required to file an appeal within thirty days of their entry. Having failed to file timely appeals, the orders are now res judicata and T.A. Title’s post trial exceptions should be treated as a nullity. See, e.g., U.S. National Bank in Johnstown v. Johnson, 506 Pa. 622, 628-31, 487 A.2d 809, 813-14 (1985); cf., Estate of Rossi, 354 Pa.Super. 124, 511 A.2d 219 (1986).

The Notice of Appeal filed by T.A. Title declares that T.A. Title is appealing from “the Order entered in this matter on the 4th day of April, 1989, which Order has been reduced to judgment.” The order entered on that date is the order of March 16, 1989 which merely (1) refuses to consider T.A. Title’s exceptions to the FIRST October 21, 1988 order, (2) declares jurisdiction to consider the exceptions with respect to the SECOND October 21, 1988 order, and (3) dismisses T.A. Title’s exceptions. I am unaware of any authority or rule of procedure which requires or permits such an order to be reduced to judgment. Cf., U.S. National Bank in Johnstown v. Johnson, supra, 506 Pa. at 629, 487 A.2d at 813. Therefore, seeking to bring this appeal within thirty days of the entry of such judgment does not improve T.A. Title’s cause.

The SECOND October 21, 1988 order, set forth above, determined the rights of T.A. Title and the Commonwealth to all of the funds in the Mellon Account. The order determined the issues raised in T.A. Title’s petition to intervene and to enjoin the Commonwealth from executing against the Mellon Account. Inasmuch as the order was entered to resolve claims raised by way of petition and rule to show cause, the filing of post-trial exceptions was both improper and a nullity. Kennedy v. Frank L. Black, Jr., Inc., 271 Pa.Super. 454, 458-59, 413 A.2d 1104, 1107 (1979), rev’d. on other grounds, 492 Pa. 397, 424 A.2d 1250 (1981); Haegele v. Pennsylvania General Insurance Co., 330 Pa. Super. 481, 488-90, 479 A.2d 1005, 1008-09 (1984).

While the majority is able to find jurisdiction to consider this appeal without citation to any authority and without expressly setting forth those facts which the majority understands to have been stipulated, I note that the trial court was unable to go further than to find that the matter was “in the nature of a trial without jury on stipulated facts.” Memorandum, March 16, 1989 (filed April 4, 1989), page 21. Judge Sheppard expressly found that:

[A]s to the facts submitted, although the various papers filed presented a substantially similar scenario, the submissions were not identical on every issue and were not manifestly agreed upon and submitted as a uniform statement ... Importantly, there was disagreement as to the precise time when each party discovered the fraud perpetrated by Doe____
Secondly, the prayers for relief did not present a uniform request.

Memorandum, supra, pages 17, 18.

I am unaware of any case law holding that one may utilize the procedures set forth in Pa.R.C.P. 227.1 and file post-trial exceptions where there has been no trial, either with or without jury, and there have been no stipulated facts. Neither the majority nor Judge Sheppard point me towards such authority, if such exists. There are no transcripts of any hearings held in this case; there has been no testimony taken. The weakness of T.A. Title’s position with respect to its claimed right to file post-trial motions is found in its averments concerning its manner of preserving its exceptions. Rule 227.1 provides that:

(b) Post-trial relief may not be granted unless the grounds therefore,
(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and
(2) are specified in the motion.

A review of the Exceptions filed October 31, 1988 demonstrates that T.A. Title did not raise the grounds for post-trial relief in any of the accepted methods provided in Rule 227.1(b)(1). Rather than “excepting” to the actions or rulings of the trial judge, T.A. Title merely recounts where its “arguments” may be found. T.A. Title contends that its “arguments” were made in (a) its Motion for Leave to Intervene as a Party Plaintiff and for an Order Preventing Disbursement of Attached Funds, (b) its Supplemental Memorandum of Law in support of the motion, and (c) its Second Supplemental Memorandum of Law in support of the motion. Exceptions of Plaintiff T.A. Title Insurance Company, filed October 31, 1988,11, page 4, 18, page 6, and 27, page 8.

It is worthwhile noting that the recent amendments to Rule 227.1, adopted by Supreme Court Order of December 19, 1989, effective January 1, 1990, include an expanded NOTE following subparagraph (c) containing, in pertinent part, the following language:

NOTE: ... A motion for post-trial relief may not be filed to orders disposing of preliminary objections, motions for judgment on the pleadings or for summary judgment, motions relating to discovery or other proceedings which do not constitute a trial. See U.S. National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 809 (1985).
A motion for post-trial relief may not be filed in a case stated.
A motion for post-trial relief may not be filed to matters governed exclusively by the rules of petition practice, (emphasis supplied).

Since the claims between the parties in fact were determined on the petitions and rule filed, and since there was no trial, it would not have been possible to utilize a motion, point for charge, request for findings, or offer of proof in order to preserve a ground for post-trial relief. It is understandable, under the circumstances, that T.A. Title is reduced to specifying “arguments” that appear in memoranda of law, rather than “exceptions” or “objections” to the trial court’s rulings. In my view, this will not suffice to bring vitality to this appeal. Rule 227.1 does not apply. The attempted post-trial proceedings were improper. The trial court’s March 16, 1989 order disposing of the “exceptions” should be deemed a nullity. Appeal not having been timely brought from the October 21, 1988 orders, this appeal should be dismissed.

Since I firmly believe that the appeal should be dismissed, I take no position concerning those issues relating to enforcement of money judgments as may be set forth in the majority opinion. With that disclaimer, I respectfully dissent.

      . The facts on which the trial court’s decision was based could have come only from the facts recited by counsel pursuant to stipulation. As the dissent has observed, there was no testimony taken at the hearing on October 14, 1988, and it is clear that the issue was not presented to the court on the basis of a case stated.
      A case stated must be distinguished from a case tried by a court without jury upon stipulated facts, because on a case stated the parties submit an agreed statement of facts for the judgment of the court, whereas upon a trial without jury upon admitted facts the case is submitted for the decision of the court, in which latter case the court renders a decision instead of entering judgment.
      7 Std.Pa.Prac.2d, Submission Upon Case Stated § 43:1 (1982).

      . We find it unnecessary to review the entry of the default judgment entered in favor of Commonwealth Land Title against Mellon Bank. T.A. Title has no standing to challenge the right of Commonwealth Land Title to recover its loss from the Krasner account at the Mellon Bank except to the extent that such recovery impairs T.A. Title’s right to recover its loss from the same account.


author: ROWLEY, Judge:

text:
    577 A.2d 1364
    COMMONWEALTH of Pennsylvania v. James WEINDER, a/k/a James Winder, a/k/a Sidewinder, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 16, 1990.
    Filed July 10, 1990.

      Robert B. Macintyre, Harrisburg, for appellant.
    Deborah S. Essis, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before ROWLEY, POPOVICH and HUDOCK, JJ.
   ROWLEY, Judge:

This is an appeal from an order denying appellant James Weinder’s petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. As a result of incidents involving a ten-year-old female neighbor, appellant was convicted by a jury of two counts of rape and sentenced to two consecutive terms of imprisonment of five to ten years. A direct appeal was taken to this Court, which affirmed the judgment of sentence in an unpublished memorandum dated July 29, 1983. Appellant’s petition for allowance of appeal was denied by the Pennsylvania Supreme Court on November 14,1983. On January 4, 1989, appellant, who had been represented by trial and appellate counsel from the Dauphin County Public Defenders Office, filed a pro se PCRA petition, his first request for collateral relief. Present counsel, not a member of the Public Defenders Office, was appointed to represent appellant and to file a supplemental petition on his behalf; appellant’s petition, as supplemented, was denied without a hearing in an order entered August 4, 1989; and this timely appeal of the order followed.

Appellant alleges three instances of trial counsel’s ineffective assistance, all of which, he asserts, were compounded by appellate counsel’s failure to challenge trial counsel’s effectiveness on direct appeal. We conclude that one of the three claims would, without more, entitle appellant to relief in the form of a new trial. However, because we cannot determine from the record whether the Commonwealth has been prejudiced in its ability to re-try appellant, we remand the case to the trial court for a hearing on that issue.

The facts of the case, as revealed by the testimony at trial, are as follows: The victim testified that the first incident of rape occurred on the morning of December 31, 1980, when she went next door after breakfast to visit her friend Sherry, who lived in the same building as appellant. The victim testified that the rape occurred after she had spent an unspecified amount of time playing with Sherry. Appellant testified that on that day, he and a friend, Tommy Woodward, left the house early, well before lunch, spent the day drinking in various bars, and did not return home until just before midnight on New Year’s Eve. His testimony was corroborated by Woodward, who testified that the two left the house sometime between 9:00 or 9:30 and 10:30 in the morning and returned home around midnight. Woodward asserted that appellant was not out of his presence for more than twenty minutes at a time and could not have gone home and returned to Woodward’s presence in that amount of time.

The victim testified that the second incident occurred on the morning of January 7, 1981, after she had gone next door and helped Sherry and an older woman prepare breakfast. Appellant testified that on January 7, 1981, he left the house a few minutes before 8:00 a.m., went to District Justice Hardy’s office to deal with two citations unrelated to the present case, and returned home around 10:00 a.m.

The evidence offered by the Commonwealth against appellant was considerable. The ten-year-old victim knew appellant as a next-door neighbor whose nickname was “Sidewinder,” and her identification of him as her assailant was definite and unwavering. She offered a detailed recounting of the assaults, and the physician who examined her on January 10, 1981 indicated that her physical condition was consistent with having experienced sexual intercourse in the recent past. Although appellant insisted that he had never had sexual relations with the victim, he offered no explanation for her allegedly false accusation of him other than the vague suggestion that he had promised to give her a necklace but had not done so. In addition, appellant conceded that, as the arresting officer had testified, he had hidden in a closet in an attempt to avoid arrest. Concealment, as the trial court instructed the jury, may be some evidence of consciousness of guilt. See Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782, 789 (1964).

In the first of his ineffectiveness claims, appellant contends that trial counsel failed to pursue exculpatory medical evidence which would have shown that he was not suffering from gonorrhea at the time the victim was assaulted. In the opinion of the physician who examined the victim several days after the second assault, the victim was suffering from a gonorrheal infection despite the fact that her test results were negative. The physician explained that “false negative” test results were not uncommon. He also testified that gonorrhea can be “self-curing” and that a male individual who was tested for gonorrhea five months after an infectious sexual contact would be unlikely to test positive. Appellant was tested for gonorrhea approximately six months after the incidents in question, and the results were negative. Appellant’s contention is that those results were meaningless in light of the physician’s explanation of the self-curing nature of the disease and that trial counsel was ineffective for failing to pursue evidence showing that appellant had not been infected at the time the incidents occurred.

Appellant’s argument is persuasive in theory but deficient in fact. Although he asserts in the argument section of his brief that records from the Dauphin County Prison, where he was incarcerated on or about January 11, 1981, would have shown whether he was tested or treated for venereal disease at that time, he asserts in his statement of the case that he was not tested for venereal disease until six months after the victim was assaulted. He also avers that “[o]ther competent medical evidence, i.e. testimony of family physicians or clinic records would have been available to support the defense” (Brief for Appellant at 7). Nowhere in his brief does appellant identify an existing medical record which indicates that he did not have gonorrhea at the time of the assaults, and in fact he refers at one point to trial counsel’s failure to pursue “possible exculpatory evidence” (Brief for Appellant at 7; emphasis added). By failing to support his claim with anything more than mere allegations, appellant asks us to consider his claim of ineffectiveness in the abstract. We decline to do so. Commonwealth v. Nelson, 514 Pa. 262, 275-76, 523 A.2d 728, 735 (1987), cert. denied, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987).

In his second claim, appellant contends that trial counsel was ineffective for failing to seek a continuance or a mistrial in order to pursue other avenues of defense, including additional alibi witnesses, after the victim and her mother gave testimony at trial which varied from their preliminary hearing testimony with respect to when the incidents occurred. At the preliminary hearing, the victim testified that the first offense occurred on January 1, 1981, at approximately 7:00 p.m. and that the second offense occurred on the evening of January 7, 1981. At trial, the victim testified that the first offense occurred on the morning of December 31, 1980, and that the second offense occurred on the morning of January 7,1981. The testimony of the victim’s mother concerning what her daughter told her about the incidents was similarly inconsistent.. Appellant asserts that trial counsel’s cross-examination of the victim and her mother concerning these inconsistencies was insufficient to remedy the damage done to his defense and that trial counsel was ineffective for failing to request a mistrial or a continuance in order to investigate “other available avenues of defense” and “possible alibi witnesses” (Brief for Appellant at 9).

As noted earlier, we will not consider ineffectiveness claims in the abstract. Appellant’s assertion that alternative avenues of defense and additional alibi witnesses may have been available asks us to do just that. He does not specify what avenues of defense trial counsel might have pursued if granted a continuance. The only possible alibi witness specified by appellant is “the person with whom he spoke” (Brief for Appellant at 9) in the district justice’s office on the morning of January 7. Appellant theorizes that given the small size of the district justice’s staff, trial counsel could easily have located this person despite appellant’s inability to remember her name or her physical appearance. At trial appellant referred to the person as the district justice’s secretary but testified that he “wouldn’t even remember her face today if she was here in the courtroom” (N.T. at 146). It is likely, then, that the secretary would have been equally unable to recognize appellant. To bear his burden of showing that counsel was ineffective for failing to investigate possible witnesses, appellant must show, inter alia, the material evidence the witness would have provided and the manner in which the witness would have been helpful to his cause. Commonwealth v. Early, 377 Pa.Super. 219, 223, 546 A.2d 1236, 1238 (1988), alloc. denied, 521 Pa. 629, 558 A.2d 531 (1989). Appellant has not met this standard. In addition, as noted earlier, appellant was able to offer an alibi witness for the first of the two incidents. We conclude, therefore, that appellant’s second claim of ineffectiveness lacks arguable merit.

Appellant’s third claim is that trial counsel was ineffective for failing to request a specific jury instruction concerning the significance of appellant’s alibi defense. Appellant had filed a notice of alibi defense prior to trial. At trial, as noted earlier, he offered an alibi for each incident, one of which was corroborated by another witness, in an attempt to show that he could not have committed the offenses charged. Regarding appellant’s alibi defense, the trial court instructed the jury as follows:

You have the direct testimony of the victim and you have the defendant’s denial. He says he was out on those occasions drinking at various bars and he had, at least on one time, the fellow who allegedly was drinking with him testified that, indeed, he was with him. Of course, the credibility of that witness, as of all witnesses, is for you.

(N.T. at 161.) This instruction was inadequate, appellant contends, because it failed to instruct the jury that when an alibi defense has been presented, the jury should acquit the defendant if the alibi evidence raises a reasonable doubt as to the defendant’s presence at the time and place the offense was committed. Appellant contends that trial counsel was ineffective for failing to request an accurate instruction and that appellate counsel was ineffective for failing to pursue the issue of trial counsel’s ineffectiveness on appeal.

Appellant’s underlying claim finds support in case law. “Alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.” Commonwealth v. Pounds, 490 Pa. 621, 631, 417 A.2d 597, 602 (1980) [quoting Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963) ]. Where evidence of alibi, as just defined, has been introduced, the defendant is entitled to an alibi instruction. Id. The testimony of the defendant, even without corroboration, may be sufficient to raise an alibi defense. Id. In the present case the victim was unable to specify precisely when each of the incidents occurred. Given her inability to be more specific, we are constrained to find that appellant’s alibi evidence placed him away from the scene of the crimes “at the relevant times.” He was therefore entitled to an alibi instruction.

In Commonwealth v. Pounds, supra, a case in which the defendant challenged the absence of any alibi instruction in his direct appeal from the judgment of sentence, our Supreme Court held that when a defendant introduces alibi evidence, he is entitled to have the jury instructed that it should acquit the defendant “if [his] alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime at the time of its commission and, thus, of his guilt.” Id., 490 Pa. at 633, 417 A.2d at 603 (footnote omitted). Such an instruction is necessary, the Court explained, owing to the danger that the defendant’s failure to prove the alibi defense will be taken by the jury as a sign of his guilt. Id., 490 Pa. at 633-34, 417 A.2d at 603. In cases in which no alibi instruction has been given, this Court has explained the requirement of an alibi instruction using the “even if not wholly believed” language of Pounds. Commonwealth v. Brunner, 341 Pa.Super. 64, 69-70, 491 A.2d 150, 152-53 (1985) (ineffectiveness claim); Commonwealth v. Nauman, 345 Pa.Super. 457, 463, 498 A.2d 913, 916 (1985) (same).

In other cases, our courts have been asked to decide whether a jury instruction which does not include the “even if not wholly believed” language of Pounds is adequate. In Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984), an alibi instruction had been given which omitted the “even if not wholly believed” language but which made clear that the defendant’s alibi evidence, alone or with other evidence, might be sufficient to raise a reasonable doubt of his guilt in the minds of the jurors and that if such a reasonable doubt were raised, the defendant must be found not guilty. In response to appellant’s assertion that the instruction had been inadequate under Pounds and that trial counsel had been ineffective in failing to object to it, this Court explained that Pounds did not create standard language for an alibi instruction. Rather, the Pounds safeguards were preserved if the jury instruction made it clear that appellant’s failure to prove his alibi defense was not tantamount to guilt. While noting that an explicit instruction to that effect would have been the better practice, the Court nevertheless held that as to the alibi instruction at issue, “the references to an alibi raising a reasonable doubt and to the mandatory not guilty verdict should reasonable doubt exist, both within the context of an alibi instruction, adequately cautioned the jury that appellant’s failure to prove his alibi was insufficient alone to prove guilt.” Id., 336 Pa.Superior Ct. at 19, 485 A.2d at 406.

In Commonwealth v. Bright, 361 Pa.Super. 261, 522 A.2d 573 (1987), alloc. denied, 517 Pa. 597, 535 A.2d 1056 (1987), the trial court had instructed the jury that the defendant had no burden of proving his alibi but that his alibi evidence, standing alone or with other evidence, might create a reasonable doubt as to guilt. Appellant asserted on appeal that trial counsel had been ineffective for failing to object to the allegedly erroneous instruction. The instruction was sufficient, this Court held, because it not only contained every safeguard provided in Johnson but also informed the jury that the defendant had no burden of proving his alibi. The latter concern, the Court explained, had been the precipitating factor behind the “even if not wholly believed” language of Pounds. Id., 361 Pa.Superior Ct. at 267, 522 A.2d at 576.

In Commonwealth v. Quarles, 361 Pa.Super. 272, 522 A.2d 579 (1987), alloc. denied, 517 Pa. 592, 535 A.2d 82 (1987), the instruction at issue had informed the jury that the alibi evidence presented by the defense, either by itself or with other evidence, might be sufficient to raise a reasonable doubt of appellant’s guilt. On appeal, appellant argued, within the context of an ineffectiveness claim, that the charge was defective because it did not specifically inform the jury that the alibi testimony offered by the defense did not have to be totally accepted in order to acquit appellant. This Court, noting the similarity of the charge to the proposed Pennsylvania Standard Jury Instruction, Section 3.11 (1985), on alibi, found appellant’s argument to be without merit. Id., 361 Pa.Superior Ct. at 280, 522 A.2d at 583.

The Supreme Court revisited the alibi instruction issue in Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989). In that case the trial court, despite defense counsel’s request for an alibi instruction in conformity with the proposed Pennsylvania Standard Jury Instruction, Section 3.11, made only fleeting references to the existence of an alibi defense. On appeal, the Supreme Court did not address the adequacy of the standard jury instruction. Instead, the Court reiterated the Pounds holding that the trial court had erred in failing to charge the jury “that it should acquit if the Appellant’s alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime when it was committed____” Id., 520 Pa. at 294, 553 A.2d at 962.

In Commonwealth v. Roxberry, 381 Pa.Super. 314, 553 A.2d 986 (1988), alloc. granted, 523 Pa. 649, 567 A.2d 652 (1989), the trial court, after referring to appellant’s alibi testimony, told the jury that “[y]our task is to consider all the evidence and to make a determination.” Id., 381 Pa.Superior Ct. at 319, 553 A.2d at 989. In a PCHA petition, appellant alleged that trial counsel had rendered ineffective assistance by, among other things, failing to request a specific alibi instruction; the trial court dismissed the petition after a hearing. Judge Wieand, with whom Judge Melinson concurred, agreed with appellant and granted a new trial; Judge Popovich dissented.

In Commonwealth v. Payne, 385 Pa.Super. 9, 559 A.2d 951 (1989), the trial court’s jury charge, which had incorporated the proposed Standard Jury Instruction, Section 3.11, had informed the jury that the defendant’s evidence, alone or with other evidence, might be sufficient to raise a reasonable doubt as to his guilt and that if the jury had such a reasonable doubt, they must acquit the defendant. On appeal from an order denying his request for relief pursuant to the PCHA, appellant argued that the language of the proposed Standard Jury Instruction was inadequate because it did not include the “even if not wholly believed” language of Pounds and that prior counsel had been ineffective for failing to raise the issue on appeal. This Court concluded that, to the contrary, the instruction had been adequate. Acknowledging the Supreme Court’s recent opinion in Willis, we observed that “[o]nly ... when the proposed Standard Jury Instruction or its equivalent was not given, has the Supreme Court utilized the [“even if not wholly believed”] language advocated by appellant____” Id., 385 Pa.Superior Ct. at 13, 559 A.2d at 953. In addition, this Court noted, the Supreme Court had never specifically disapproved the proposed Standard Jury Instruction on alibi or this Court’s decisions in Johnson and Bright.

In Commonwealth v. Jones, 386 Pa.Super. 467, 563 A.2d 161 (1989), this Court en banc considered appellant’s claim, raised on direct appeal from the judgment of sentence, that prior counsel had been ineffective for failing to object to an instruction informing the jury that they should consider the defendant’s alibi testimony, in conjunction with the other evidence offered, to determine whether the Commonwealth had met its burden of proving beyond a reasonable doubt that the crime had been committed by the defendant, that the alibi evidence, by itself, might work for acquittal, and that the alibi evidence, together with other evidence, might be sufficient to raise a reasonable doubt as to the defendant’s guilt. Judge Melinson wrote for this Court as follows:

Clearly, a trial court alibi charge will not per se be deemed erroneous for failing to parrot the language of the Pounds Court. Rather, what is required of the trial court is that it make clear to the jury that the defendant’s failure to prove alibi is not tantamount to guilt____ According, after evaluating the trial court’s charge as a whole, we find that the trial court’s alibi charge was proper here. Because counsel will not be deemed ineffective for failing to pursue a meritless claim, we find that trial counsel and post-verdict motions counsel were not ineffective for failing to object to the trial court’s charge.

Id., 386 Pa.Superior Ct. at 472, 563 A.2d at 163 (citations omitted).

Most recently, this Court was asked to consider, within the context of a PCHA petition alleging ineffectiveness, the adequacy of an instruction informing the jury that the defendant’s alibi evidence, “if you believe it,” might be sufficient, by itself or with other evidence, to raise a reasonable doubt of defendant’s guilt, and that if the evidence raised such a reasonable doubt the defendant must be found not guilty. Commonwealth v. Lott, 392 Pa.Super. 371, 372, 572 A.2d 1279, 1279 (1990). This Court rejected appellant’s claim that the charge was improper because it did not “incant” the “even if not wholly believed” language of Pounds and Willis. Id., 392 Pa.Superior Ct. at 372, 572 A.2d at 1279. Finding no error in the charge, the Court observed that “Willis only holds that an alibi instruction must be given to assure the jury that the failure to prove the defense is not an inference of guilt.” Id., 392 Pa.Superior Ct. at 374, 572 A.2d at 1280.

In the present case, the portion of the jury charge quoted earlier was the trial court’s only instruction concerning the significance of appellant’s alibi evidence. We do not find in the instruction any language which would have served to inform the jury, even indirectly, that appellant’s failure to prove his alibi defense was not tantamount to guilt. A general charge on assessing the credibility of witnesses, which is all that was given in this case, does not suffice as an alibi instruction. Commonwealth v. Pounds, supra; Commonwealth v. Brunner, supra. The significance of the trial court’s omission in the context of an ineffectiveness claim was addressed by Judge Wieand for this Court in Commonwealth v. Brunner, supra:

The witness had testified; the alibi evidence was before the jury; and appellant was entitled to a specific instruction from the court regarding its significance. When the trial court failed to deliver the required instruction, counsel had a duty to request it to do so and, if the request was denied, to preserve the court’s error by an appropriate objection. To fail in this respect was so unreasonable that it must be equated with constitutionally ineffective assistance.

Id. 341 Pa.Super. at 70, 491 A.2d at 153. Accord Commonwealth v. Nauman, 345 Pa.Super. at 463-64, 498 A.2d at 916. Because trial counsel failed to request an appropriate alibi instruction, we are constrained to conclude that the assistance rendered appellant by prior counsel was ineffective.

This conclusion does not end our inquiry, however. To be eligible for relief under the PCRA, a petitioner in appellant’s situation must plead and prove the following by a preponderance of the evidence: 1) that he has been convicted of a crime under the laws of the Commonwealth and is currently serving a sentence of imprisonment, probation, or parole for the crime [§ 9543(a)(l)(i) ]; 2) that the conviction resulted from “[ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place” [§ 9543(a)(2)(h) ]; 3) that the allegation has not been previously litigated and has not been waived [§ 9543(a)(3)(i) ]; and 4) “[t]hat the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational strategic or tactical decision by counsel” [§ 9543(a)(4)].

In the present case, the first, third, and fourth of the requirements have obviously been met: appellant has been convicted and is serving a sentence of imprisonment; his claim of ineffectiveness has not been previously litigated and, as noted in footnote 2, has not been waived; and there can be no reasonable basis for failing to request an alibi instruction where, as here, notice of an alibi defense was given and alibi evidence was introduced, Commonwealth v. Nauman, 345 Pa.Super. at 464, 498 A.2d at 916.

Whether the second of these requirements has been satisfied is more difficult to determine. The relevant statutory provision stipulates that it is not enough for appellant to plead and prove some ineffective assistance of counsel, but rather that he must plead and prove ineffectiveness “which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” This statutory qualification has, thus far, received little interpretation in case law. In Commonwealth v. Whaley, 380 Pa.Super. 25, 550 A.2d 1345 (1988), this Court suggested in dictum and without discussion that trial counsel’s actions in connection with the Commonwealth’s failure to produce certain evidence at trial did not “so undermine the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Id., 380 Pa.Superior Ct. at 27 n. 1, 550 A.2d at 1346 n. 1.

In Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989), and Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989), this Court denied petitions for relief based on claims of ineffective assistance of counsel in connection with alleged violations of Pa.R. Crim.P. 1100, noting in the latter case that “[cjounsel’s ineffectiveness for failure to file a motion to dismiss due to a violation of Rule 1100 has absolutely no effect on the 'truth-determining’ process.” Id., 388 Pa.Superior Ct. at 472, 565 A.2d at 1206. In Blackwell the Court also held that while a pre-trial identification procedure could undermine the reliability of an adjudication under extreme circumstances, the procedure at issue in the case had not done so. Id. 384 Pa.Super. at 255-56, 558 A.2d at 109.

In Commonwealth v. Perdue, 387 Pa.Super. 473, 564 A.2d 489 (1989), appellant claimed that trial counsel had been ineffective for failing to object to the Commonwealth’s cross-examination of appellant regarding three aspects of appellant’s testimony. This Court found that because two of the Commonwealth’s areas of questioning were proper and the third caused no prejudice to appellant, trial counsel’s failure to object to the Commonwealth’s questioning did not undermine the reliability of the jury’s verdict. Id., 387 Pa.Superior Ct. at 492, 564 A.2d at 498.

In Commonwealth v. Lyons, 390 Pa.Super. 464, 568 A.2d 1266 (1989), this Court considered appellant’s claims, raised in the context of prior counsel’s alleged ineffectiveness, that he had been improperly denied a preliminary hearing and that his conviction on a conspiracy charge was contrary to the weight of the evidence. This Court found no arguable merit in the latter claim and, with respect to the former claim, observed that appellant had failed to show not only that he had been prejudiced by counsel’s alleged ineffectiveness but also that the absence of a preliminary hearing had in any way undermined the truth-determining process. Id., 390 Pa.Superior Ct. at 469, 568 A.2d at 1268-69.

In Commonwealth v. Perlman, 392 Pa.Super. 1, 572 A.2d 2 (1990), appellant challenged the sufficiency of the evidence supporting his conviction, asserting that prior trial and appellate counsel had been ineffective for failing to preserve the issue for appellate review. This Court, finding the issue cognizable under the PCRA, observed that “the claim involves the sufficiency of the evidence, which necessarily implicates the ‘truth-determining process’____” Id. at 5, 572 A.2d at 4. The Court then explained that in order to prevail on his ineffectiveness claim, appellant would have to show that his underlying contention possessed arguable merit, that the course chosen by counsel had no reasonable basis designed to further appellant’s interest, and that counsel’s conduct prejudiced appellant. Id. at 5-6, 572 A.2d at 4-5. After reviewing the facts of appellant’s case, the Court concluded that the evidence was sufficient to support appellant’s conviction and, therefore, that prior counsel could not be deemed ineffective for failing to preserve appellant’s claim to the contrary. Id. at 8, 572 A.2d at 6.

In addition to the case law just cited, we are mindful of this Court’s observation that the purpose of the PCRA is to prevent a fundamentally unfair conviction. Commonwealth v. Velasquez, 387 Pa.Super. 238, 245, 563 A.2d 1273, 1276 (1989). Therefore, we interpret the language of § 9543(a)(2)(h) as meaning that it is not enough for appellant to show that he suffered some prejudice as a result of counsel’s action or inaction, but rather that counsel’s action or inaction so affected the trial itself (“the truth-determining process”) that the result of the trial is inherently unreliable. As noted earlier, a correct alibi instruction is necessary because in its absence the jury might assume that a defendant’s failure to prove his alibi defense is an indication of his guilt. Such an inference, if it arose, would contravene “the presumption of innocence and the Commonwealth’s burden of proving the offense beyond a reasonable doubt.” Commonwealth v. Pounds, 490 Pa. at 634 n. 17, 417 A.2d at 603 n. 17. With this language, the Supreme Court has made it very clear that a correct alibi instruction is an essential part of the truth-determining process. Because the purpose of the alibi instruction is, in essence, to ensure that the jury properly allocates the burden of proof, a verdict reached in the absence of such an instruction is inherently tainted by the jury’s possibly erroneous analysis of the evidence.

Moreover, the Supreme Court has also made clear that the strength of the Commonwealth’s evidence against a defendant cannot bring about a different result. In Pounds the Court made the following observation:

Although there is substantial evidence of guilt on the record, we are unable to conclude the failure to instruct on alibi could not have contributed to the jury’s verdict. The jury was not told it did not have to wholly credit [defendant’s] alibi testimony in order for the testimony to create a reasonable doubt of his guilt. Hence, the jury may have convicted merely because it did not believe his alibi testimony. In the absence of an instruction that they did not have to wholly believe [defendant] to acquit, the jury may have inferred guilt from his failure to clearly establish his alibi.

Id., 490 Pa. at 634, 417 A.2d at 603. It is no less likely in the present case that the jury “may have convicted [appellant] merely because it did not believe his alibi testimony.” We are persuaded, therefore, that, given the absence of a proper alibi instruction, no reliable adjudication of appellant’s guilt or innocence could have taken place, and that appellant has met the requirements of 42 Pa.C.S. § 9543(a) for relief on his claim of ineffective assistance of counsel.

However, our conclusion that appellant has met the requirements for relief pursuant to § 9543(a) does not end our analysis, as appellant must also overcome the hurdle of § 9543(b):

(b) Exception.—Even if the petitioner meets the requirements of subsection (a), the petition shall be dismissed if it appears that, because of delay in filing the petition, the Commonwealth has been prejudiced either in its ability to respond to the petition or in its ability to re-try the petitioner. This subsection does not apply if the petitioner shows that the petition is based on grounds of which the petitioner could not have had knowledge by the exercise of reasonable diligence before the delay became prejudicial to the Commonwealth.

42 Pa.C.S. § 9543(b). As noted earlier, appellant’s petition for allowance of appeal was denied by the Supreme Court on November 14, 1983. Appellant waited until January 4, 1989, a delay of more than five years, to file his first petition for post-conviction relief. None of the issues raised in the pro se and counseled petitions involved “grounds of which the petitioner could not have had knowledge” at the conclusion of his direct appeal. Accordingly, appellant is not entitled to a new trial if, because of his delay in requesting post-conviction relief, the Commonwealth has been prejudiced in its ability to re-try him.

On the facts of this case, in which appellant delayed more than five years in seeking PCRA relief, nine years have elapsed since the incidents occurred, the testimony of alibi witnesses is central to the defense, and the offenses charged involve the sexual assault of a child who was then ten and is now nineteen, we cannot determine, without more, whether the Commonwealth has been prejudiced. Therefore, we vacate the order of August 4, 1989, and remand the case to the trial court for a hearing to determine whether the Commonwealth has been prejudiced in its ability to re-try appellant. If such prejudice is found, the trial court shall reinstate its order denying appellant’s PCRA petition; if such prejudice is not found, appellant’s judgment of sentence shall be vacated and a new trial shall be ordered. In either case, the trial court’s order shall be final and appealable. 42 Pa.C.S. § 9546(c).

Order vacated. Case remanded to the trial court for further proceedings consistent with this Opinion. Jurisdiction relinquished.

      . The Post Conviction Hearing Act ("PCHA") was modified in part, repealed in part, and renamed the Post Conviction Relief Act by Act of April 13, 1988, No. 47, §§ 3-4, 1988 Pa.Legis.Srv. 227, 229-232. Commonwealth v. Blackwell, 384 Pa.Super. 251, 253 n. 1, 558 A.2d 107, 108 n. 1 (1989). The PCRA was made immediately effective.

      . Although the Commonwealth has not argued that appellant has waived his claims of ineffective assistance of counsel, the certified record reveals an aspect of appellant’s representation that requires clarification. Assistant public defender Roy Keefer represented appellant during trial and through the filing, on June 29, 1981, of post-trial motions. At some point thereafter, Keefer ceased to represent appellant. The exact date on which Keefer withdrew from the case cannot be ascertained from the certified record, which does not include a request by Keefer to withdraw, an order allowing him to do so, or a docket entry indicating when he did so.
      On December 8, 1981, attorney John E. Good, Jr., petitioned the court to be allowed to withdraw as appellant’s counsel. He asserted in his petition that appellant had contacted him on or about August 13, 1981, that he had obtained records from the Public Defenders Office in order to review the trial improprieties alleged by appellant, and that appellant had paid him nothing despite the fact that he had requested a retainer fee at the initial interview. In an order entered the same day, Good’s petition was granted and appellant was reassigned to the Public Defenders Office. He was represented through sentencing and direct appeal by a member of that office.
      There is no indication in the certified record that Good took any action on appellant’s behalf. Moreover, Pa.R.Crim.P. 302(a) stipulates that ‘‘[c]ounsel shall not be permitted to represent a defendant following a preliminary hearing unless an appearance is entered.” The absence of a formal entry of appearance by Good therefore indicates that, insofar as can be determined from the record, Good never actually represented appellant. Accordingly, we consider the present proceeding to be the first in which appellant has been represented by counsel who was not a member of the Public Defenders Office. In light of the general rule that a public defender may not argue the ineffectiveness of another member of the same office who represented the client at an earlier stage in the proceedings, Commonwealth v. Fetzner, 372 Pa.Super. 469, 473, 539 A.2d 890, 892 (1988), alloc. denied, 520 Pa. 602, 553 A.2d 965 (1988), the present proceeding is appellant’s earliest opportunity to challenge the effectiveness of prior counsel. Accordingly, appellant has not waived his ineffectiveness claims.

      . At trial defense counsel quoted from a transcript of the preliminary hearing. The transcript is not included in the certified record.

      . Moreover, the court’s assertion that appellant "says he was out on those occasions drinking at various bars ..." erroneously suggested to the jury that appellant had offered the same alibi for both incidents. In fact, as we have seen, appellant’s alibi for the second incident was that he had gone to a district justice’s office.

      . Within the context of the PCRA, “an issue is waived if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.” 42 Pa.C.S. § 9544(b).