text:
    541 A.2d 327
    Joseph FERKO and Ann Ferko, His Wife, Appellees, v. Michael A. SPISAK and Patricia Spisak, His Wife, the Borough of North East, Rocco J. Tonasino and Dinah Jo Tonasino, His Wife, Daniel R. Morse and Elinor Morse, His Wife, and Robert B. Haslett, Executor of the Estate of Lochner Tenney, Appellants. Appeal of Michael A. SPISAK and Patricia Spisak, His Wife. Joseph FERKO and Ann Ferko, His Wife, Appellants, v. Michael A. SPISAK and Patricia Spisak, His Wife, the Borough of North East, Rocco J. Tonasino and Dinah Jo Tonasino, His Wife, Daniel R. Morse and Elinor Morse, His Wife, and Robert B. Haslett, Executor of the Estate of Lochner Tenney, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1987.
    Filed March 8, 1988.
    Reargument Denied April 26, 1988.
    Petition for Allowance of Appeal Granted Oct. 17, 1988.
    Rowley, J., concurred in result.

      Cathy M. Lojuewski, North East, for Spisak, appellants in No. 353 and appellees in No. 354.
    Eugene J. Brew, Jr., Erie, for Ferko, appellants in No. 354 and appellees in No. 353.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Today we consider two consolidated appeals from the trial court Order which purportedly determined the parties’ property rights to portions of certain paper streets as provided for in a subdivision plot plan. The facts are as follows. By conveyance dated June 17,1946, the Ferkos acquired title to a parcel of land located in a plotted subdivision referred to as the Orchard Park Addition in North East, Pennsylvania. The subdivision was mapped out in 1916. The Ferkos’ deed was filed on June 18, 1946.

The parties agree that the Ferkos’ deed was described by metes and bounds, not by lot numbers as contained in the subdivision’s map. However, the deed made the following reference with the respect to the subdivision’s paper streets:

[Excepting the public street[ ] known as Franklin ... Street[]: also excepting the rights of any and all other parties in and to the plotted streets in the Orchard Park Addition to North East Borough.

Davis Street was a “plotted street” as referred to in the Ferkos’ deed.

The Spisaks purchased their parcel of land by deed on February 20, 1981 and recorded it on March 6, 1981. The Spisaks’ land, like the Ferkos’ was originally contained in the Orchard Park Addition Plan. The deed described the eastern boundary of the Spisaks’ property as abutting the western line of Franklin Street. The southern boundary of the land was determined to abut the northern line of Davis Street.

The record shows that development on the Orchard Park Addition never occurred. Other than being plotted out in the subdivision plan, neither Franklin nor Davis Streets were ever physically opened. In fact, North East Borough, by ordinance, relinquished any interest it might have possessed in the paper streets provided for by the plan, with exception to the areas of land in dispute.

Arguments occurred between the parties concerning the boundary line separating their properties. According to the parties’ deed descriptions, certain sections of Franklin and Davis Streets form common boundaries between the two properties. Franklin Street consists of a strip of land approximately 50 feet wide by 354.5 feet long and runs in a north-south direction. Davis Street consists of a strip of land approximately 50 feet wide by 181.5 feet long and runs in an east-west direction. On June 21, 1984, the Ferkos filed an action to quiet title to the sections of the streets in question. Following a nonjury trial, the trial court rendered the following determinations:

1. The Spisaks have no property rights in the land known as Davis Street in the Orchard Park Addition.
2. The Ferkos have all right, title and interest in the land known as Davis Street in the Orchard Park Addition.
3. The Spisaks and the Ferkos have an easement over the land known as Franklin Street in the Orchard Park Addition.

These cross-appeals ensued.

FRANKLIN STREET

By their appeal, the Ferkos contend that the trial court erred in finding that they did not have title to the disputed portion of Franklin Street. It is argued that North East Borough abandoned all rights it possessed to Franklin Street. Thus, the land in question should revert to them since it was originally contained within their deed description. In the alternative, the Ferkos claim that they have obtained title to the Franklin Street span through adverse possession.

We agree with the Ferkos’ position that North East Borough has effectively abandoned its rights to Franklin Street. It is stated in 36 P.S. § 1961 that:

Any street, lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on land owned by such person or persons in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out.

In the case at bar, the Borough of North East did not use or open Franklin Street at any time subsequent to its dedication to the public in 1916. As a result, the public’s right to that portion of the subdivision reserved for Franklin Street was effectively foreclosed after the 21 years had lapsed. In re: Penn Avenue, 386 Pa. 403, 126 A.2d 715, 717 (1956). Therefore, by ordinance and lapse of time, North East Borough retained no interest in Franklin Street.

With this settled, the next question to be resolved is whether or not the Ferkos possess title to the stretch of land which was to comprise Franklin Street. It was testified to at trial that, according to the deed description, the western boundary of the property described in the Ferkos’ deed coalesced with the western boundary of Franklin Street (N.T., 7/30/86, 16-17). The Ferkos argue that, inasmuch as the disputed portion of Franklin Street was contained within the legal description of their property, and that since the Borough failed to accept Franklin Street within the prescribed 21 year time period, the land should revert back to them. However, upon analyzing the Ferkos’ deed, we reach a contrary conclusion.

In examining the deed, we observe that the grantor described a general area of land, and then by exception, excluded the street involved herein. We refer to the deed:

[EJxcepting and reserving from the aforesaid premises a piece of land situated at the southwest corner ... sold to Walter Green and Jacob J. Phancho by deed ... and land sold to John L. Phancho and land sold to Bernice Phancho also excepting the public street[ ] known as Franklin ... Street[ ]; also excepting the rights of any and all parties in and to the plotted streets in the Orchard Park Addition to North East Borough.

(N.T., 7/30/86, 26). Initially, we note that the deed does not contain any provision that expressly transfers title of the land reserved for Franklin Street to the Ferkos if that street was never opened by the Borough. Moreover, we will not adopt the Ferkos’ reasoning that the disputed portion of Franklin Street, by implication, should revert to them simply because it was referred to in the deed and its western line constitutes the western boundary of the general plot of land. This becomes readily apparent when the Phancho and Green transactions are interpreted in the manner by which the Ferkos would construe the reference to Franklin Street. Accepting the Ferkos’ interpretation, if for any reason the sales of land to the Phanchos and Walter Green had been declared invalid, then title to these parcels of' land would revert to the Ferkos. Clearly, this explanation of the deed description is illogical. For this reason, we find that the Ferkos have not acquired title to Franklin Street by way of the terms of their deed.

We have determined that the deed description does not automatically render the Ferkos owners of Franklin Street. However, this determination still does not resolve the underlying question of where title to Franklin Street rests. In addition, we need to consider what effect the Borough’s abandonment of Franklin Street have on the rights of the adjoining landowners to the street?

In Rahn v. Hess, 378 Pa. 264, 106 A.2d 461, 464 (1954), our Supreme Court considered the plaintiffs’ contention that, pursuant to 36 P.S. § 1961, “the subdivider merely makes an offer to dedicate the streets on his subdivision to public use, that title to the streets remains in him and at the end of twenty-one years he still has the option of rededicating the streets to public use or retaining the fee in himself.” This argument was rejected and it was found that the abutting lot owners acquired the fee in the streets. Thus, the subdivider had divested himself of title to the streets by the terms of his deed and had no fee to rededicate. In holding that the abutting land owners acquired the fee to the streets, our Supreme Court explained:

It is settled law in Pennsylvania that where the side of a street is called for as a boundary in a deed, the grantee takes title in fee to the center of it, if the grantor had title to that extent, and did not expressly or by clear implication reserve it: See Paul v. Carver, 26 Pa. 223, Cox v. Freedley, 33 Pa. 124; Saccone v. West End Trust Company, 224 Pa. 554, 560, 73 A. 971, 24 L.R.A., N.S., 539. The reasons for the rule were set forth by Chief Justice Lewis in Paul v. Carver, supra, 26 Pa. at page 225: ' * * * Where land is laid out in town lots, with streets and alleys, the owner receives a full consideration for the streets and alleys in the increased value of the lots * * * If the streets were to be vacated, of what value would they be to the original grantors, unless for the purposes of annoyance to the lot owners? A long strip of ground fifty or one hundred feet wide and perhaps several miles in length, without any access to it except at each end, is a description of property which it is not likely either party ever contemplated as remaining in the grantor of the lots on each side of it. Influenced by these considerations, the law has carried out the real intention of the parties by holding that the title passed to the center of the street subject to the right of passage. Where a street is called for as a boundary it is regarded as a single line. The thread of the road is the monument or abuttal: * * * \

Id. 106 A.2d at 464.

Instantly, we are mindful that the western line of Franklin Street was demarcated as the western boundary of the Ferkos’ property. At first blush, it would appear that the holding in Rahn is inapposite to the case at bar inasmuch as the Ferkos’ deed sets the western boundary at a line which encompasses the entire width of Franklin Street. Thus, it is seemingly incongruous to apply the above-cited rule that the Ferkos, as the grantees, take to the center of the street. The street was already included in the description. However, as stated, supra, although the western line of Franklin Street was named as the western boundary of the Ferkos’ property, the deed description expressly excluded Franklin Street from being part of the land subject to the conveyance. Thus, in reality, the Ferkos’ true western boundary is the eastern line of Franklin Street. With this fact elucidated, the applicability of Rahn to the case sub judice becomes obvious. Since the eastern side of Franklin Street was called for as the Ferkos’ western boundary, Rahn directs the conclusion that title to the center of Franklin Street passed to the Ferkos. Id. 106 A.2d at 464. In so holding, we acknowledge that the Spisak’s eastern boundary was marked as the western side of Franklin Street. Therefore, title to the remaining half of the street passed to the Spisaks.

Next, we must discuss what effect the Borough’s abandonment of Franklin Street had on the parties’ rights to traverse the street. Once again, Rahn is dispositive. In Rahn, our Supreme Court explicitly stated that “title passed [to the parties] to the center of the street subject to the right of passage.” Id. 106 A.2d at 464. Likewise, in McLaughlin v. Cybulski, 192 Pa.Super. 7, 159 A.2d 14, 16 (1960), we decided that where the public’s right to use a roadway had been extinguished, the owners of property abutting the street possessed an easement for right of way purposes over the entire proposed street. In essence, while the public easement in a street is lost as the result of the passage of time, purely private rights of easement of property owners are not extinguished. Riek v. Binnie, 352 Pa.Super. 246, 507 A.2d 865, 867 (1986). Instantly, the parties’ ownership interests in the land comprising Franklin Street are subject to each other’s rights to travel the street.

The Ferkos raise as an additional issue the allegation that they have obtained title to Franklin Street by adverse possession. By its opinion, the trial court stated that the Ferkos had failed to meet the burden of proof necessary for a finding of adverse possession. “[O]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years.” These elements must coalesce; otherwise, the possession will not confer title. Klos v. Molenda, 355 Pa.Super. 399, 513 A.2d 490, 492 (1986). We do not agree with the Ferkos’ assertion that they have proven ownership of the disputed portion of Franklin Street by adverse possession. In their appellate brief, the Ferkos do not point to any evidence of record which would show that any, let alone all, of the necessary elements of adverse possession were demonstrated. When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, we shall not consider the merits thereof. Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149, 150 (1982).

DAVIS STREET

Finally, we are aware that the Spisaks contend that they have acquired an express easement over Davis Street by virtue of their deed. However, we decline to consider any arguments made concerning the parties’ rights to Davis Street. The Spisaks have failed to preserve through post-trial motions any issues with respect to the trial court’s determination of that street. Thus, they are waived and that aspect of the trial court’s Order shall not be disturbed. Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987).

Judgment of the trial court finding that the Ferkos have all rights, title, and interest in Davis Street affirmed. Judgment of the trial court finding only that the parties possess easements to Franklin Street reversed.

ROWLEY, J., concurs in the result.

      . See map of subdivision, infra.

      . As pointed out, infra, we shall not consider any arguments raised by the Spisaks’ cross-appeal insofar as the Spisaks have waived all issues by failing to file post-trial motions. See Pa.R.C.P. 227.1.

      . By its Findings of Fact, the trial court opined that the Ferkos had not acquired title to Franklin Street (Trial Court Opinion, 5). However, the trial court did not proceed to determine where title to the street did rest. For this reason, we find it necessary to examine the parties’ deeds to settle this matter.

      . Although the parties’ properties were originally contained within a subdivision, the rights of other landowners whose properties abut Franklin Street are not affected by this decision. The trial court found that ”[a]ll other landowners who may have had rights to the property in question, other than the Spisaks, have given quit claim deeds to the plaintiffs for the land which is the subject of the within action.” (Trial Court Opinion, 2). By comparison, in McLaughlin v. Cybulski, supra, the abutting landowners did not transfer any rights they may have possessed to the unopened street in question. Thus, although the suit was brought by only one landowner, the decision reached by this Court applied to all landowners of the subdivision whose property adjoined the unopened street in dispute.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    541 A.2d 332
    COMMONWEALTH of Pennsylvania v. Roxanne JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 26, 1987.
    Filed April 20, 1988.

      Vincent R. Baginski, Assistant Public Defender, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before WIEAND, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for first degree murder and carrying a firearm without a license. Appellant contends that (1) the suppression court erred in (a) denying her motion to suppress her statement to police on the ground that her arrest was illegal; (b) denying her motion to suppress her statement to police because it was given without benefit of Miranda warnings; (c) overruling her objection to a leading question; (d) admitting a carbon copy of the search warrant in violation of the best evidence rule; and (e) reopening the record to allow the admission of the original search warrant; (2) the verdict is against the weight of the evidence in light of her defense of mental illness; (3) the evidence is insufficient to support a conviction for first degree murder in light of her defense of mental illness; (4) the trial court erred in prohibiting appellant’s expert witness from rendering an opinion regarding the legal definition of mental illness; (5) her sentences are illegal because they should have merged; and (6) the sentencing court, when sentencing appellant on the weapons offense, failed to state adequate reasons on the record for its deviation from the Sentencing Guidelines. For the reasons that follow, we affirm the judgment of sentence for first degree murder, we vacate the judgment of sentence for carrying a firearm without a license and remand the case for resentencing.

On February 5, 1985, appellant was arrested and charged with homicide in relation to the killing of her former husband. Following a jury trial, appellant was found guilty of first degree murder and carrying a firearm without a license. Appellant was sentenced to a term of life imprisonment for first degree murder and a concurrent term, of two-and-one-half-to-five-years imprisonment for carrying a firearm without a license. This appeal followed.

Appellant first contends that her arrest was illegal because the arresting officers were outside of their municipal jurisdiction and, therefore, the lower court erred in denying her suppression motion. The Municipal Police Jurisdiction Act (Act), 42 Pa.C.S.A. §§ 8951-8954, provides that a police officer may act outside his or her primary jurisdiction in certain enumerated instances. See Id. § 8953. Appellant argues that the police officers’ actions in this case do not fall within any of the circumstances identified by the Act. Here, at approximately 9:27 p.m. on February 5, 1985, McKeesport Police Officer Willard received a radio call regarding a possible homicide in McKeesport. Upon arriving at the victim’s home, Officer Willard spoke with the victim’s son, who stated “My mother shot my dad.” N.T. March 14-22, 1986 at 44. Officer Willard then sent a radio dispatch to police officers in White Oak, an adjoining municipality, stating that appellant was involved in a shooting and asking them to check appellant’s White Oak home. Id. at 46. Officer Gironda, of the White Oak Police Department, received the radio dispatch and proceeded to appellant’s home. Id. at 22. Upon discovering that appellant was home, Officer Gironda parked his car outside her home and requested assistance from the McKeesport and White Oak Police Departments. Id. at 23. Officers Willard and Tirpak of McKeesport, as well as two White Oak police officers, arrived on the scene. Officers Gironda, Willard, and Tirpak approached appellant’s house and asked her to come outside. Id. at 24-25. When appellant came outside, Officer Gironda put handcuffs on her. Id. at 47. Officer Gironda then read the Miranda warnings to appellant. Id. at 26. Officer Gironda testified that he could not remember which officer actually told appellant she was under arrest. Id. at 34. White Oak police officers then placed appellant in a White Oak police car and transported her to the McKeesport police station. Id. at 54. Although McKeesport police officers were present at the time of appellant’s arrest in White Oak, we conclude that appellant effectively was arrested by Officer Gironda, and under authority of the White Oak Police Department. Thus, the Municipal Police Jurisdiction Act does not apply. Accordingly, the suppression court did not err in concluding that appellant’s arrest was lawful.

Appellant next contends that the suppression court erred in denying her motion to suppress her post-arrest statement to police because it was given without the benefit of Miranda warnings. A person must be informed of his or her Miranda rights prior to custodial interrogation by police. Commonwealth v. Sites, 427 Pa. 486, 490, 235 A.2d 387, 389 (1967). Custodial interrogation is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” Id., 427 Pa. at 492, 235 A.2d at 390 (emphasis supplied) (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)). “ ‘Interrogation’ is police conduct ‘calculated to, expected to, or likely to evoke admission.’ ” Commonwealth v. Brantner, 486 Pa. 518, 527, 406 A.2d 1011, 1016 (1979) (quoting Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969)). When an inculpatory statement is not made in response to interrogation by police officers, however, “the statement is classified as a volunteered statement, gratuitous and not subject to suppression for lack of warnings.” Commonwealth v. Whitley, 500 Pa. 442, 445, 457 A.2d 507, 508 (1983) (citations omitted).

Here, it is uncontested that appellant was in custody at the time she made an inculpatory statement to the police. The record reveals, however, that the statement was not the result of an interrogation by the police. At the suppression hearing, Officer Gironda testified that after appellant was placed under arrest, he began to advise her of her Miranda rights. N.T. May 14-22, 1986 at 26. Appellant interrupted him several times while he attempted to inform her of her rights. Id. Officer Gironda further testified as follows:

Q. When she interrupted you, what did she say? Use whatever language she said.
A. She said, “Are you in on this fucking thing?” I said, “Roxie, I have got a job to do.” And she looked at me, and she said, “I had a job to do, and I did it tonight.”

Id. at 27-28. Officers Willard and Tirpak then finished advising appellant of her rights. Id. We cannot conclude that Officer Gironda’s response to appellant’s question, particularly in light of her continued interruptions, was conduct designed to evoke an admission. See Commonwealth v. Brantner, supra (admission made in response too “Hi, Harry. Apparently we have a little problem, and I need to take your photograph.” was not result of interrogation). Thus, for Miranda purposes, appellant’s statement was volunteered and need not be suppressed simply because it was made before the police could finish giving her the Miranda warnings. Accordingly, we conclude that the suppression court correctly denied appellant’s suppression motion on this ground.

Appellant next contends that the suppression court erred in overruling her objection to a leading question. It is well-established that the allowance of leading questions lies within the discretion of the trial court and a court’s tolerance or intolerance of leading questions will not be reversed absent an abuse of discretion. See, e.g., Commonwealth v. Beasley, 504 Pa. 485, 495, 475 A.2d 730, 735 (1984); Commonwealth v. Bell, 328 Pa. Superior Ct. 35, 51, 476 A.2d 439, 448 (1984). “A leading question has been defined as one which puts the desired answer in the mouth of the witness.” Commonwealth v. Dreibelbis, 493 Pa. 466, 476, 426 A.2d 1111, 1116 (1981).

Here, appellant objects to the following question posed by the district attorney to Officer Willard:

Q. Were you present at the time that [appellant] said to Gironda, “Are you in on this fucking thing, too, Gironda?”
MR. BAGINSKI [attorney for appellant]: Object to that as being leading.
THE COURT: Overruled.
MR. BAGINSKI: We don’t even know if the witness even heard it.
THE COURT: Overruled.

N.T. May 14-22, 1986 at 48. Because the question objected to by appellant could be answered with either a “yes” or “no” response, it is not of the type designed to put the desired answer in the mouth of the witness. We conclude, therefore, that this question was not leading. Moreover, appellant was not prejudiced by this question because the fact that appellant made that statement to Officer Gironda, and the substance of the statement had already been introduced into evidence. See Id. at 28. Thus, the suppression court did not abuse its discretion in overruling appellant’s objection to this question.

Appellant next contends that the suppression court erred in admitting into evidence a copy of the original search warrant in violation of the best evidence rule. The best evidence rule requires that, “to prove the contents of a writing, the original writing must be produced, unless a sufficient reason for not producing it is shown.” Commonwealth v. Byers, 320 Pa. Superior Ct. 223, 227, 467 A.2d 9, 11 (1983). A copy of the original document may be admitted if it is shown that the original is not available and that the copy conforms to the contents of the original. Commonwealth v. Olitsky, 184 Pa. Superior Ct. 144, 154, 133 A.2d 238, 243 (1957).

The rule which excludes evidence of copies of documents where the documents themselves are available as proof does not apply to documents and writings which are executed in duplicate or multiplicate form. It is well settled that where a writing is executed in duplicate or multiplicate, each of the parts is the writing which is to be proved, because, by the act of the parties, each is made as much the legal act as the other. Each part so executed is regarded as the primary evidence of its contents, and the original need not be produced.

Id., 184 Pa.Superior Ct. at 154-55, 133 A.2d at 244. See also Evolo Liquor License Case, 204 Pa. Superior Ct. 225, 227, 203 A.2d 332, 333 (1964) (copy of search warrant considered best evidence as duplicate original because made by same process as original).

Here, at the suppression hearing, the Commonwealth introduced into evidence the server’s copy of the search warrant. N.T. May 14-22, 1986 at 68. The server’s copy was a carbon copy of the original search warrant that was produced at the same time as the original. Id. at 69, 71. The detective who prepared the search warrant testified that the warrant was produced in multiplicate. Id. at 71. After the warrant was executed, the original was returned to the District Magistrate who issued the warrant. Id. at 70. The server’s copy that was contained in the file was signed by both the affiant and the Magistrate and was sealed. Id. at 71. We conclude, therefore, that the server’s copy was a duplicate original of the search warrant and the original search warrant need not be produced. Accordingly, the admission of the server’s copy of the search warrant did not violate the best evidence rule.

Appellant next contends that the suppression court erred in reopening the record to admit into evidence the original search warrant. Because we conclude that the suppression court properly admitted the duplicate original of the search warrant, there was no prejudice to appellant in admitting the original search warrant into evidence. Moreover, appellant has failed to allege any inconsistencies between the original and duplicate original from which we could infer prejudice to appellant. Accordingly, the suppression court did not err in reopening the record to admit the original search warrant.

Appellant next contends that the evidence was insufficient to support the verdict and the verdict was against the weight of the evidence in light of testimony regarding her defense of mental illness. Appellant argues that her mental illness at the time of the offense negated an element of the crime of first degree murder, i.e., specific intent. It is settled law that the test for evaluating the sufficiency of the evidence in a criminal case is whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner and drawing all reasonable inferences therefrom upon which the fact finder could properly have based its verdict, there is sufficient evidence to enable the trier of fact to find beyond a reasonable doubt every element of the crime of which appellant has been convicted. Commonwealth v. Davis, 491 Pa. 363, 369, 421 A.2d 179, 182 (1980). When reviewing a claim that the verdict is against the weight of the evidence, we will grant a new trial only when the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Miller, 303 Pa. Superior Ct. 504, 509, 450 A.2d 40, 42 (1982). First degree murder is defined as follows:

A criminal homicide constitutes a murder of the first degree when it is committed by an intentional killing.

18 Pa.C.S.A. § 2502(a). “Intentional killing” is defined as:

Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.

Id. § 2502(d).

The Crimes Code provides that a person who raises a defense of insanity may be found “guilty but mentally ill” if “the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.” 18 Pa.C.S.A. § 314(a). “Mentally ill” is defined as “One who as a result of mental disease or defect, lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.” Id. § 314(c)(1). Once there is sufficient evidence to raise the issue of insanity, the burden is on the Commonwealth to prove the defendant’s sanity beyond a reasonable doubt. Commonwealth v. Ruth, 309 Pa. Superior Ct. 458, 462, 455 A.2d 700, 702 (1983). Although psychiatric testimony is of probative value in determining a defendant’s mental capacity, it is within the province of the jury to determine the credibility and weight of such evidence. Id. Moreover, the law does not require that we conclude that an appellant’s mental state is perfectly sound or that he or she acted with a completely free will in order to sustain a conviction of first degree murder. Commonwealth v. Cain, 349 Pa. Superior Ct. 500, 524, 503 A.2d 959, 971 (1986). “The factfinder need not ... conclude that appellant lacked the substantial capacity to conform his [or her] conduct to the requirements of the law merely because he [or she] failed to abide by it.” Id., 349 Pa.Superior Ct. at 523, 503 A.2d at 971.

Here, Dr. Robert Wettstein, a psychiatrist, testified for the defense regarding appellant’s mental capacity. After interviewing appellant and her family and reviewing her records, he diagnosed appellant as having a “paranoid disorder.” N.T. May 14-22, 1986 at 390. Dr. Wettstein defined paranoid disorder as a serious mental condition “which some people refer to as a psychosis or a substantial difficulty in telling reality from fantasy.” Id. In Dr. Wettstein’s opinion, appellant began suffering from this disorder in 1982 and he testified that the disorder manifested itself in appellant as a belief that people were trying to kill her. Id. at 390-91. He further testified that appellant was involuntarily committed to a hospital for several days in August 1983 and again in November 1983. Id. at 394, 396. Dr. Wettstein then gave his opinion that appellant “had such a mental disease that she lacks substantial capacity to conform her conduct to the requirements of the law.” Id. at 414.

On cross-examination, the prosecutor questioned Dr. Wettstein regarding appellant’s records from her prior hospital commitments. He was questioned regarding a report prepared by Dr. Bowman of the Behavior Clinic, who examined appellant in May 1984. Id. at 444-45. Dr. Bowman had concluded that appellant was hostile and agitated but “had a good grasp of her current situation, was alert and oriented” and “there was no indication of hallucinations, delusions, or thought disorder.” Id. Appellant was diagnosed by Dr. Bowman as having an adjustment reaction and an “adjustment disorder of adult life.” Id. at 445. Dr. Wettstein acknowledged that neither of these disorders is a mental illness. Id. Dr. Wettstein was also questioned regarding a report prepared by Dr. Christine Martrone of the Behavior Clinic, who examined appellant two days after the killing. Id. at 446-48. Dr. Martrone diagnosed appellant as having a personality disorder, mixed type. Id. at 447. Dr. Wettstein explained that his diagnosis differed from that of Dr. Martrone because he had more information regarding appellant’s condition. Id. at 447-48. Dr. Wettstein further testified as follows:

Q. [by assistant district attorney]: Are you suggesting in any way that the defendant in this case could not understand the nature and quality of the acts she was doing that night when she pulled that trigger?
A. I don’t have any opinion about that.
Q. You cannot in fact say she did not understand that; is that correct?
A. She could not or could.
Q. Are you telling this jury that if the defendant did not know what she was doing when she pulled that trigger that she did not know what she was doing was wrong?
Are you telling the jury your opinion as to. that?
A. I have no opinion about that, either.

Id. at 425-26.

Thus, through the testimony of appellant’s expert alone, the jury was presented with conflicting evidence regarding whether appellant was suffering from a mental illness at the time the offense was committed. It therefore was within the province of the jury to determine the weight and credibility of this evidence. See Commonwealth v. Ruth, supra. See also Commonwealth v. Eckert, 244 Pa. Superior Ct. 424, 429, 368 A.2d 794, 797 (1976) (absent abuse of discretion, it is province of trier of fact to believe all, some, or none of evidence). Although there was testimony that would support a conclusion that appellant was “mentally ill,” as that term is defined in the Code, at the time of the offense, there was also evidence from which the jury could have concluded that appellant had the capacity to conform her conduct to the requirements of the law. See Commonwealth v. Cain, supra. Accordingly, we conclude that there was sufficient evidence to allow the jury to find that appellant was not mentally ill at the time of the killing and, therefore, that the killing was willful, deliberate, and premeditated. Moreover, in light of the various opinions of the experts, the verdict of first degree murder is not so contrary to the evidence as to shock one’s sense of justice.

Appellant next contends that the trial court erred in prohibiting her expert witness, Dr. Wettstein, from testifying regarding the legal definition of mental illness. At trial, Dr. Wettstein testified as follows:

Q. Is there any other words that are sometimes used within the context of mentally ill?
A. From a psychiatric standpoint, by the use of mental disorder, mental disease, or mental defect, from the standpoint that the law to my mind meets the criteria for mental illness.
MR. NESCOTT [assistant district attorney]: Objection. That is a question for the jury as to the law.
THE COURT: Sustained. It will be stricken. The jury is to disregard the interpretation of the law as rendered by the doctor.

N.T. May 14-22, 1986 at 415. “The question whether a witness is qualified to testify as an ‘expert’ is within the sound discretion of the trial court and will not be overturned except in clear cases of abuse.” Commonwealth v. Gross, 307 Pa. Superior Ct. 353, 357, 453 A.2d 620, 622 (1982). An expert witness may testify as to his or her opinion on matters that are within his or her scientific area or expertise. Id.

Here, Dr. Wettstein, a psychiatrist, was qualified to express his opinion within his scientific knowledge or experience as a medical doctor. He was not qualified, however, to testify regarding the law or whether his definition of mental illness was the same as the legal definition of mental illness. Accordingly, the trial court did not abuse its discretion when it sustained the Commonwealth’s objection to his expression of an opinion as to the law. Moreover, Dr. Wettstein had earlier rendered an opinion that appellant “had such a mental disease that she lacks substantial capacity to conform her conduct to the requirements of the law.” N.T. May 14-22, 1986 at 414. Thus, even if the court erred in sustaining the objection, appellant was not prejudiced by the court’s ruling, because appellant’s expert already had reiterated the legal definition of mental illness.

Appellant next contends that her sentence for carrying a firearm without a license should merge with her sentence for first degree murder. We disagree. The Crimes Code provides as follows:

If any person shall commit or attempt to commit a crime of violence when armed with a firearm contrary to the provisions of this subchapter, he [or she] may, in addition to the punishment provided for the crime, be punished also as provided by this subchapter.

18 Pa.C.S.A. § 6103 (emphasis added). See also Commonwealth v. Flynn, 314 Pa. Superior Ct. 162, 170 n. 9, 460 A.2d 816, 820 n. 9 (1983) (sentence for firearms violation will not merge with sentence for crime of violence).

Here, appellant was sentenced to a term of life imprisonment for first degree murder and to a concurrent term of two-and-one-half-to-five-years imprisonment for carrying a firearm without a license. Under § 6103, appellant could be properly sentenced for both the firearms violation and the underlying crime of violence. Accordingly, we conclude that her convictions should not merge for sentencing purposes.

Appellant last contends that the sentencing court failed to state adequate reasons on the record for deviating from the Sentencing Guidelines with regard to her sentence for carrying a firearm without a license. Appellant’s brief contains a concise statement of the reasons relied upon for allowance of appeal with regard to this issue, as required by Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The Sentencing Code, 42 Pa.C.S.A. §§ 9701-9781, provides, inter alia, that:

In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.

Id. § 9721(b) (emphasis added). Such a statement is mandatory. Commonwealth v. Riggins, 474 Pa. 115, 129, 377 A.2d 140, 148 (1977); Commonwealth v. Terrizzi, 348 Pa. Superior Ct. 607, 609, 502 A.2d 711, 712 (1985). The failure to provide such a statement of reasons for the sentence imposed is reversible error requiring resentencing. Id.; Commonwealth v. McCall, 320 Pa.Superior Ct. 473, 482, 467 A.2d 631, 635 (1983). In addition, when the court sentences outside the Guidelines, there must be a contemporaneous written statement of the reasons for the deviation from the Guidelines. Commonwealth v. Royer, 328 Pa. Superior Ct. 60, 70, 476 A.2d 453, 458 (1984). Failure to provide such a statement is grounds for vacating the sentence and remanding for resentencing. Id.

Here, appellant had a prior record score of zero (0). The offense gravity score for carrying a firearm without a license is six (6). Thus, under the Sentencing Guidelines, Pa.Code §§ 303.1-303.9, reprinted following 42 Pa.C.S.A. § 9721, the possible range of sentences for this offense is as follows:

mitigated minimum aggravated
range range range
2-4 mos. 4-12 mos. 12-18 mos.

Appellant’s sentence of two-and-one-half-to-five-years imprisonment, therefore, clearly exceeded the sentences recommended by the Sentencing Guidelines. The sentencing transcript, however, is devoid of any reasons for the sentence imposed. Indeed, in addition to not consulting the Guidelines, a review of the record demonstrates that the sentencing court failed to consider any of the relevant statutory factors, including appellant’s character and background, in formulating appellant’s sentence. In addition, although appellant raised this issue in her Motion to Reduce and/or Modify Sentence, the lower court failed to address the issue in its opinion. Because the sentencing court failed to state its reasons for its deviation from the Sentencing Guidelines and for the sentence it imposed, we vacate the judgment of sentence for carrying a firearm without a license and remand the case for resentencing consistent with this memorandum.

For the above-stated reasons, we affirm the judgment of sentence for first degree murder, vacate the judgment of sentence for carrying a firearm without a license, and remand for resentencing on the weapons charge.

Judgment of sentence for murder affirmed. Judgment of sentence for carrying a firearm without a license vacated and remanded. Jurisdiction is relinquished.

      . We note at the outset that, when reviewing the denial of a suppression motion, we "will consider only the evidence of the prosecutor's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Otto, 343 Pa. Superior Ct. 457, 459 n. 1, 495 A.2d 554, 555 n. 1 (1985) (quoting Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977)).

      . Moreover, we note that even if we were to conclude that appellant was illegally arrested by McKeesport police officers, appellant would not necessarily be entitled to the suppression of the fruits of her arrest. See Commonwealth v. Peppers, 357 Pa. Superior Ct. 270, 273, 515 A.2d 971, 973 (1986) (suppression not appropriate remedy for invalid arrest under Municipal Police Jurisdiction Act).

      . The lower court and the Commonwealth state that this issue is waived because appellant attempted to raise it in boiler-plate post-verdict motions. After filing post-verdict motions, appellant requested leave to file amended post-verdict motions within ten days of receipt of the pre-trial and trial transcripts. The trial court granted this request. See Order, May 30, 1986. Appellant timely filed amended post-verdict motions, which alleged the following:
      16. Defendant avers that the verdict was contrary to the law, specifically in regard to mental illness.
      17. Defendant avers that the verdict was contrary to the weight and sufficiency of the evidence, specifically in regard to the evidence of mental illness.
      Amended Motion for a New Trial and/or Arrest of Judgment at 3. We conclude that these statements, which refer specifically to an issue central to appellant’s defense at trial, are sufficient to preserve the issues for appellate review.

      . We note that because of the mandatory nature of the statutory allocution rule, appellant's brief presents a substantial question for our review, as required by 42 Pa.C.S.A. § 9781(b). Moreover, appellant has neither raised nor preserved the issue of the constitutionality of the Sentencing Guidelines, and therefore Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) does not apply.

      . We note, however, that "[a] statement by a sentencing court in its opinion that it considered all of the appropriate factors does not cure its failure to do so during sentencing.” Commonwealth v. Peters, 358 Pa.Superior Ct. 94, 97, 516 A.2d 1197, 1199 (1986).


author: KELLY, Judge: MONTEMURO, Judge,

text:
    541 A.2d 341
    Barbara L. SHERRY, Appellee, v. TREXLER-HAINES GAS, INC., Atlantic Richfield Company, Sun Gas Company, John P. Clarke Co., Inc. and Charles A. Hones, Inc. Appeal of TREXLER-HAINES GAS, INC.
    Superior Court of Pennsylvania.
    Argued June 15, 1987.
    Filed April 27, 1988.

      Jeffrey R. Dimxnich, Allentown, for appellant.
    Anthony M. Muir, Allentown, for Hones, appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   KELLY, Judge:

This is an appeal from an Order granting appellee’s preliminary objections in the nature of a motion to strike appellant’s joinder complaint. As appellant Trexler-Haines Gas, Inc. (hereinafter Trexler) followed proper procedure in joining Sun Gas Company (hereinafter Sun), Atlantic Rich-field, John P. Clarke, Co., and Charles A. Hones, Inc. as additional defendants, we hold that the trial court erred in dismissing appellant’s complaint joining those defendants. Accordingly, we reverse and remand.

The facts giving rise to this appeal are simply stated. Appellee Barbara Sherry instituted a personal injury suit against Trexler on September 22, 1983. Trexler filed its answer and new matter on October 26,1983. Moreover, on November 10, 1983 Trexler filed a joinder complaint against additional defendants Sun, Atlantic Richfield Co. and John P. Clarke Co. Service was effectuated on Atlantic Richfield Co. and John P. Clarke Co.; however, on February 26,1984 the complaint to join Sun was returned by the sheriff of Montgomery County marked “not found.”

Trexler eventually filed a praecipe on May 28, 1986 to reissue the complaint against Sun. Service of the complaint was made on June 20, 1986. Sun filed, on July 15, 1986, preliminary objections in the nature of a motion to dismiss the complaint on grounds of untimely joinder. A hearing on the motion was held on November 3, 1986. The trial court, on December 16, 1986, ordered dismissal of the joinder complaint against Sun on the basis of untimely service, citing as authority the rescinded Pa.R.C.P. 2254. Trexler timely appealed this order to our Court. Its sole contention on appeal is that the trial court erred in applying the rescinded Rule 2254 to the procedures in this case.

I.

Initially we note that joinder of an additional defendant is accomplished by the filing of either a praecipe for a writ or a complaint within sixty (60) days of receipt of the plaintiffs complaint. Pa.R.C.P. 2252, 2253. Herein, Trexler filed its joinder complaint within the applicable sixty (60) day time period but did not effectuate proper service upon Sun for over two years. Personal jurisdiction over Sun was therefore not acquired during that period.

When Sun was served with the reissued complaint, Sun filed preliminary objections on July 15, 1986. These preliminary objections were in the nature of a motion to dismiss Trexler’s complaint due to late joinder of the additional defendants. However, as stated previously, the record reveals that the joinder of additional defendants Sun, Atlantic Richfield, and John P. Clarke Co. was timely, as it was accomplished within sixty (60) days of appellant Trexler’s receipt of the plaintiffs complaint. Nonetheless, rather than ruling on Sun’s preliminary objections regarding joinder, the trial court, sua sponte, entered an order striking the complaint on the basis of untimely service rather than untimely joinder. This was error.

Undeniably, a trial court may address sua sponte issues of whether jurisdiction is proper. Cheng v. Cheng, 347 Pa.Super. 515, 500 A.2d 1175 (1985); Commonwealth, Dept. of Transp., Bureau of Traffic Safety v. Forte, 29 Pa. Cmwlth. 415, 371 A.2d 526 (1977); Pa.R.C.P. 1032(2). However, here the trial court raised sua sponte the issue of the timeliness of service, a procedural question not addressed by either party. This, we find to be improper. See e.g. Luitweiler v. Northchester Corp., 456 Pa. 530, 319 A.2d 899 (1974) (court cannot sustain a demurrer where no demurrer is made by a party); Galdo v. First Pennsylvania Bank, 250 Pa.Super. 385, 378 A.2d 990 (1977) (court erred in sustaining preliminary objections as to both defendants where only one defendant filed preliminary objections).

Moreover, when a party fails to raise the issue of defective service, that party is deemed to have waived that issue and to have validated an otherwise defective form of service. Cox v. Hott, 246 Pa.Super. 445, 371 A.2d 921 (1977). As Sun failed to plead defects in service, Sun effectively validated that service and should be held to have waived the right to argue that issue on appeal. In this regard, the trial court erred, and accordingly, we must revérse.

II.

Additionally, we hold that the trial court erred in applying the rescinded Pa.R.C.P. 2254 to this case.

Our Supreme Court adopted Rule of Civil Procedure 425, governing the joinder of additional defendants, on June 20, 1985, to be effective January 1, 1986. The rule states in pertinent part:

Rule 425. Additional Defendants

(a) Original process shall be served upon an additional defendant who is not already a party to the action in the same manner as if he were an original defendant. Copies of all pleadings filed in the action shall be served with the complaint against the additional defendant.

Note: ...

See Rule 213(b) for the right of an additional defendant to move for a severance and Rule 1006(d) for the right to move for a change of venue.

Rule 401 applies to the manner in which process is to be served upon original defendants:

Rule 401. Time for Service, Reissuance, Reinstatement and Substitution of Original Process. Copies for Service

(a) Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint.
(b) (1) If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule or outside the Commonwealth within the time prescribed by Rule 404, the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon ‘reissued’ in the case of a writ or ‘reinstated’ in the case of a complaint.
(2) A writ may be reissued or a complaint reinstated at any time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint.
(4) A reissued, reinstated or substituted writ or complaint shall be served within the applicable time prescribed by subdivision (a) of this rule or by Rule 404 after reissuance, reinstatement or substitution.

(Emphasis added). These rules replaced the repealed Rule 2254(b) which stated in pertinent part that:

(b) the writ, or the complaint of the defendant or the additional defendant if the joinder is commenced by complaint or the complaint is used as alternative process as provided by rule 1010(e), shall be served by the sheriff in the same manner as a writ of summons within thirty (30) days after the commencement of the action to join, unless the time be extended by the court upon cause shown.

(Emphasis added). Thus, our Supreme Court dispensed with the requirement of the rescinded Pa.R.C.P. 2254(b) that a party must show cause to the court before an extension of time for service be granted. Under the new rules, all that is required for extension of time for service is that the prothonotary reissue the writ or reinstate the complaint before service is again attempted. We note in particular that the new rule states a timely filed joinder pleading continues to be valid after the original time for service has expired as long as the prothonotary reissues the pleading. Pa.R.C.P. 401(b)(1).

The language of the new rules is unambiguous; the requirement that the court exercise its discretion in granting an extension of time for service, and the requirement that a party show cause for such extension, have been omitted. As the language is unambiguous, this Court may not disregard the clear letter of the rules under the pretext of pursuing its alleged spirit. Lamp v. Heyman, supra, 469 Pa. 465, 366 A.2d at 886 (the language of the Rules of Civil Procedure “does not admit of qualification in an effort to ascertain its spirit”).

Appellant contends that the trial court erred in applying Pa.R.C.P. 2254(b) to the service which was perfected after January 1, 1986. We agree. Pa.R.C.P. 52 provides guidance for this issue, as it states:

Rule 52. Effective Date. Application to Pending Actions

(a) A rule or an amendment to a rule shall be effective upon the date specified by the Supreme Court.
(b) If no effective date is specified, the rule or amendment shall be effective on the first day of July or January following the thirtieth day after its adoption, whichever is earlier.
(c) Unless the Supreme Court specifies otherwise, a rule or an amendment to a rule shall apply to actions pending on the effective date.
Rescinded and new rule adopted April 5, 1982, effective July 1, 1982.

(Emphasis added).

As the action herein was still pending on the effective dates of Pa.R.C.P. 52, Pa.R.C.P. 401 and Pa.R.C.P. 425, we hold that the new rules, rather than the rescinded Pa.R.C.P. 2254(b), apply. Accordingly, the trial court erred in applying the rescinded rule rather than the current.

The only remaining question, then, is whether appellant properly followed the procedure of Pa.R.C.P. 401 and Pa.R.C.P. 425. Our examination of the record indicates that the complaint was properly reinstated on May 28, 1986 before appellant served Sun on June 20, 1986. Thus, appellant properly served Sun and should be entitled to continue with the action.

We recognize that the result in the instant case may seem anomalous in that, from February 1984 when the sheriff marked on the service forms “not found” until May 1986, appellant made no attempt to comply with the then-in-effect Rule 2254(b) to effectuate service. However, we are reassured by the fact that any inequity resulting from the delay in obtaining personal jurisdiction over Sun can be redressed through various options which remain available to Sun, including: filing a motion to dismiss the complaint, rather than preliminary objections {see Pa.R.C.P. 1017) (preliminary objections limited to, inter alia, questioning service)', filing a motion for extension of time in order to conduct discovery (see Pa.R.C.P. 216, 4007.3); cf. Cohen v. International Organization Masters, Mates and Pilots, Intern. Marine Division of ILA, AFL-CIO, 247 Pa.Super. 83, 371 A.2d 1337 (1977); or filing a motion to sever {see Pa.R.C.P. 213(b)).

CONCLUSION

Accordingly, as appellant followed the applicable rules of procedure, we reverse the order of the trial court dismissing appellant’s joinder complaint, and remand for further proceedings not inconsistent with this opinion. Jurisdiction relinquished.

MONTEMURO, J., files dissenting opinion.

MONTEMURO, Judge,

dissenting:

While I agree with the majority view that under the new rules Sun would be able to obtain relief through avenues other than dismissal of the joinder complaint, for the following reasons I strongly disagree that those rules apply.

The majority observes that because Sun claimed only improper joinder, rather than defective service of the joinder complaint in its preliminary objections, no claim as to service has been preserved. The problem with this conclusion is its mistaken assumption that the issuance of the complaint is sufficient to achieve joinder; that is, the inclusion of an additional party. However, the joinder process is merely commenced by means of the complaint; no joinder actually occurs until service of the complaint has been effected. See 3 Standard Pa. Practice § 14:186 (1981). See also 8 Goodrich Amram 2d § 2254(a):l (1977). “After the process to join the additional defendant has been issued, it must be served on him personally to acquire jurisdiction over his person. Otherwise joinder will not be effected and no legally effective judgement can be entered against the additional defendant.” Id. This is because “one who is not served with process does not have the status of a party to the proceeding” 62 Am.Jur.2d § 4 (1972). The notion that filing a document with the prothonotary is sufficient in and of itself to assure the proper inclusion of an additional litigant is therefore erroneous.

The governing Rule of procedure in force at the time the complaint was filed, that is Pa.R.C.P. 2254(b), allowed appellants thirty (30) days from the filing of the joinder complaint within which to accomplish service. Failing that, leave of court upon cause shown was required to extend time within which service was to be made. Because appellant neither made service nor obtained an extension, Sun was never actually joined. Its assertion of improper/late joinder is therefore appropriate. Conversely, a claim of defective service would have been at best a misnomer, since under the strictures of the applicable Rule, service was nonexistent rather than faulty. In Bandes v. Klimoski, 260 Pa.Super. 137, 393 A.2d 1050 (1978), an en banc panel of this court found that the trial court properly dismissed the joinder of proposed additional defendants who were not served with the writ of joinder until more than four months after its issuance. See also 8 Goodrich-Amram § 2254(a):l (1977). Rule 2254 was in force at the time Bandes was decided, it governed as well when appellant’s complaint lapsed for want of service. The majority has failed to cite authority for the proposition that the subsequent promulgation of Rule 425 was sufficient to validate ex post facto a complaint which had expired two years earlier. I would analogize the operation of the Rule to that of a statute of limitations: the period during which the vitality of the cause exists is determined by the statute in effect at the time the action is filed. Passage of a longer statute of limitations after the cause has already expired does not serve to raise it, Lazarus-like, from extinction. To the contrary, “in additional defendant proceedings, it is the law that is in effect on the date service is to be made” which governs. Id. To achieve joinder under the rule contemporary with filing of the complaint, service was to be made on or before November 22, 1983. This is more than two years prior to the January 1, 1986 effective date of Rule 425 upon which the majority relies to legitimize eventual service. The majority seems to recognize this as an incongruity by its admission that “the result in the instant case may seem anomalous in that, from February 1984 when the sheriff marked on the service forms ‘not found’ until May 1986, appellant made no attempt to comply with the then-in-effect Rule 2254(b) to effectuate service.” (Majority Op. at 336).

Appellant’s nearly two year bout of inertia demonstrates not only gross dereliction in protecting its rights, but a total failure to exercise good faith. This latter element is crucial, since its absence violates the principle enunciated by our Supreme Court in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1977), and reiterated by this court in Bandes, that the plaintiff must do “all that is required” by the Rules governing procedure. It is not enough simply to have taken no affirmative step to frustrate service. Appellant has offered no evidence of any attempt to achieve service on appellee by alternate means, or to have discovered appellee’s true whereabouts. Given the facts of appellee’s size as one of the largest corporate entities in the Philadelphia area, and its prior business relationship with appellant as a supplier, its elusiveness is astonishing.

Both prior Rules 2070, and current Rule 430, neither of which is itself germane to this inquiry, nevertheless are attended by the same comment, which provided an illustration of what is involved in a good faith effort to locate a defendant.

(1) inquiries of postal authorities, (2) inquiries of relatives, neighbors, friends, and employers of the defendant, and (3) examinations of local telephone directories, voter registration records, local tax records, and motor vehicle records.

Appellant makes no claim of having done any of these things or others to enable it to seek an extension of time for service under Rule 2254. Nor indeed has it offered “to the lower court, or to our court, compelling reasons to excuse the obvious violation of the Rule.” Bandes at 142, 393 A.2d at 1052.

Under these circumstances, I am not persuaded that appellee should now be forced to resort to curative measures to ameliorate a situation of appellant’s making.

Accordingly, for the reasons stated above, I would affirm the Order of the trial court.

      . Praecipe to join additional defendant Charles A. Hones, Inc. was filed January 11, 1984.

      . The dissent contends that joinder does not occur until service of the complaint has been effected. (Dissent at 345). In support, the dissent cites Bandes v. Klimoski, 260 Pa.Super. 137, 393 A.2d 1050 (1978). We find this case inapposite. In Bandes this Court noted that while "the joinder itself was timely accomplished’ by filing a praecipe for a writ within sixty (60) days, dismissal of the complaint of joinder was justified because service was not made within the applicable thirty (30) day time. Bandes, supra 393 A.2d at 1052. (Emphasis added). We find no authority in the clear language of the rules, nor in prior caselaw for the proposition that joinder is not accomplished until service is made. Accord Bandes, supra. See also Scabis v. Nobel, 63 D & C 52 (1947); discussion Section II, infra. Rather, we conclude the dissent has confused the separate concepts of joinder and service as did the trial court. Furthermore, any reliance on Pennsylvania Standard Practice for this proposition is misplaced as that treatise concludes personal jurisdiction over an additional defendant is obtained through service rather than through filing the joinder pleadings. As Sun was legally served, pursuant to the new applicable rules, personal jurisdiction over Sun was obtained. However, joinder was accomplished when the pleadings were filed.

      . Trexler was served with the complaint on September 22, 1983 and, in turn, filed its complaint joining the additional defendants on November 10, 1983.

      . The majority also find that the trial court improperly addressed sua sponte the "procedural question” of faulty service. I would point out that "in order to acquire jurisdiction over the person of one sought to be joined as an additional defendant, the process by which joinder is to be effected must be issued and served. The court should dismiss an additional defendant who has not been legally served with the process that effects joinder.” 3 Standard Pennsylvania Practice § 14:186 (1981).
      I would also note that appellee raised in its preliminary objections, and therefore in a procedurally unacceptable manner, appellant’s violation of the statute of limitations. Blair v. Guthrie Development Corp., 305 Pa.Super. 292, 451 A.2d 537 (1982). The reinstatement of a complaint must be accomplished within the same period as was required for filing of the original complaint. 1 Goodrich Amram § 1010(b):l (1977). This appellant failed to do since, as the majority points out, the joinder action was initiated on Nov. 10, 1983, and was not reinstated until May 28, 1986.

      . The majority label citation to this case inapposite, quoting a section which finds "joinder” to have been timely accomplished. A close reading of the text reveals that the term joinder is used to refer to both the document naming additional defendants, and the process by which they are incorporated into the action. Rule 2254(b), however, is clear in speaking of "commencement of the action to join,” that is institution of a process.