author: CERCONE, Judge:

text:
    658 A.2d 816
    COMMONWEALTH of Pennsylvania v. Thomas Conrad STARK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 13, 1995.
    Filed May 9, 1995.

      James F. Donohue, Butler, for appellant.
    Robert F. Hawk, Asst. Dist. Atty., Butler, for the Com., appellee.
    Before McEWEN, POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal of an order of the lower court (the Butler County Court of Common Pleas) dismissing appellant’s petition for post-conviction relief without a hearing. We vacate the order and remand the case for a hearing.

Appellant entered a plea of guilty to nine counts of burglary on August 3, 1992. On September 17, ¡1992, the lower court sentenced him to concurrent terms of imprisonment of three to six years. At the time of sentencing, appellant was serving a sentence of imprisonment in Westmoreland County in connection with charges filed there. Appellant was also serving a sentence from Allegheny County in the Westmoreland County jail. He had additional charges pending against him in Mercer and Washington counties. j

On August 3, 1993, appellant filed a ílotion for Correction of Sentence Nunc Pro Tunc on the bksis that he had not received credit in Butler County for time he had served in Westmoreland County since the time of his arrest on the Butler County charges. Appellant contended that the credit was part of his plea agreement with the Commonwealth. On September 20, 1993, the lower court ruled that appellant was not entitled to credit for time served in other counties because it appeared that he had been credited by the other counties with such time served.

Appellant filed an appeal to the Superior Court of the lower court’s September 20, 1993 order. The Superior Court returned the notice of appeal to appellant because of defective service. Appellant then filed an amended notice of appeal. This court dismissed appellant’s appeal on March 8, 1994 on the basis that the appeal was untimely.

On March 15,1994, appellant filed a pro se petition for post-conviction relief. His court-appointed counsel filed a response to the lower court’s notice of its intention to dismiss the petition. The lower court dismissed appellant’s post-conviction petition on the basis that the issues raised had been previously litigated. From this order, appellant filed this timely appeal, in which he raises the following issues:

1. Whether the trial court erred when it determined that whether the Commonwealth should specifically perform a plea agreement was an issue previously litigated under 42 Pa.C.S.A. § 9544(a)(1)?
2. Whether the plea agreement between the Appellant and the Commonwealth dated August 3, 1992 should be specifically enforced?
3. Whether appellant should be permitted to withdraw from said plea agreement if the Commonwealth is not required to specifically perform it?
4. Whether trial counsel was ineffective for failing to advise appellant that he would not receive credit for time served as required by the plea agreement?

Before addressing these contentions, we first set forth our standard of review.

When reviewing the grant or denial of post-conviction relief, the appellate court is limited to determining whether the lower court’s findings are supported by the record and its order is otherwise free of legal error. Commonwealth v. Laskaris, 407 Pa.Super. 440, 595 A.2d 1229 (1991). We grant great deference to the findings of the PCRA court. Commonwealth v. Nelson, 393 Pa.Super. 611, 574 A.2d 1107 (1990).

Appellant first contends that the lower court erred in determining that the issue of whether the Commonwealth should specifically perform the provisions of the plea agreement alleged by appellant had been previously litigated. Under section 9544(a) of the PCRA, an issue will be considered previously litigated if:

(1) it has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner did not appeal;
(2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or
(3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.

42 Pa.C.S.A. § 9544(a).

In the instant case, the trial court ruled on the merits of the issue on September 20, 1993. Appellant’s appeal of that order was returned because of defective service. Appellant filed an amended appeal, but this court dismissed it finding that the appeal properly should have been taken from the judgment of sentence rendered on September 17, 1992. Because appellant attempted to file an appeal of the trial court’s ruling of September 20, 1993, we cannot say that the issue was previously litigated under section 9544(a)(1), supra. Appellant did file an appeal of the trial court’s ruling on the merits, but it was ultimately determined to be untimely.

We also cannot conclude that appellant’s claim has been previously litigated under section 9544(a)(2). In finding appellant’s appeal of the September 20, 1993 order of the lower court untimely, this court relied ón Commonwealth v. McCleary, 333 Pa.Super. 443, 482 A.2d 651 (1984). In that case, appellant entered guilty pleas on March 9, 1982, and the trial court imposed sentence on May 4, 1982. Id. at 445, 482 A.2d at 652. The appellant filed an application to reconsider sentence on May 4, 1982. The trial court denied the motion on July 9, 1982, and appellant appealed on July 28, 1982. Id. The court held that appellant had not filed a timely notice of appeal. Because the judgment of sentence was imposed on May 4, 1982, appellant’s notice of appeal was filed well beyond the thirty day period for filing an appeal. The panel held that the fact that appellant had filed a motion for reconsideration of sentence “did not extend the time for taking an appeal.” Id. at 446, 482 A.2d at 652.

In the instant case, the trial court rendered its judgment of sentence on September 17, 1992. Appellant filed a Motion for Correction of Sentence Nunc Pro Tunc on August 30, 1993, which the lower court denied on September 20, 1993. Appellant then appealed from the September 20, 1993 order. This court correctly dismissed the appeal as untimely under McCleary, supra, because appellant should have appealed from the September 17, 1992 order.

Under section 9544(a)(2) of the PCRA, supra, an issue will be considered previously litigated if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.... ” 42 Pa.C.S.A. § 9544(a)(2). This court’s order dismissing the prior appeal as untimely was not a ruling on the merits of the issue. Therefore, the issue was not previously litigated under section 9544(a)(2).

Section 9544(a)(3) does not apply to the instant case because the issue has not been decided in any prior proceeding “collaterally attacking the conviction or sentence.” 42 Pa.C.S.A. § 9544(a)(3). Thus, we conclude that the trial court erred in determining that the issue raised in appellant’s PCRA petition had been previously litigated.

Next, appellant contends that the plea agreement should be specifically enforced, or that he should be permitted to withdraw his guilty plea if the Commonwealth is not required to specifically enforce the plea agreement. To be eligible for relief under the PCRA, the petitioner must satisfy four tests. 42 Pa.C.S.A. § 9543(a). The first test is that the petitioner has been convicted of a crime under the laws of this Commonwealth and is, inter alia, “currently serving a sentence of imprisonment, probation or parole for the crime.” Id., § 9543(a)(l)(i). The record shows that on September 17,1992, appellant was sentenced to a term of imprisonment of three to six years. Therefore, he satisfies the first criterion for post-conviction relief.

The second requirement for PCRA relief is that the conviction or sentence resulted from one or more of the circumstances described in section 9543(a)(2). One of those circumstances is that the conviction or sentence resulted from “[a] plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty.” Id., § 9543(a)(2)(iii). Appellant contends that part of his inducement to plead guilty was that he was promised credit against his Butler County sentence for time served in the Westmoreland County jail, and that he has subsequently not been given credit for such time.

There is some support in the record for appellant’s contention. At the sentencing proceeding in connection with appellant’s guilty plea, the court stated that appellant’s “negotiated sentence” was three to six years imprisonment, probation and costs, with the sentences (on the nine counts of burglary) to run concurrent with each other and with appellant’s pending burglary charges in Allegheny and Westmoreland counties. N.T., September 17, 1992, at 2. The court and counsel for appellant and for the Commonwealth then discussed the charges which were pending or decided against appellant in various counties, including Westmoreland, Allegheny, Mercer, and Washington. That discussion included the following:

THE COURT: This concurrent, pending charges, this is a State Sentence. I don’t believe that the State is going to give credit upon a charge he hasn’t been sentenced on yet.
MR. MORGAN (counsel for appellant): No, no. That’s correct, Your Honor. You’re sentencing him today, and he has other places after this he’s going to get sentenced, also, but the three to six years will start—
THE COURT: On our sentence, it will start now and be concurrent with the sentence he already received, but the sentence he hasn’t received, it can’t be.
MR. MORGAN: But he gets credit from the time he’s been in jail from a detainer in this county, so it would be while, as I understand it—
THE COURT: I just don’t want any misleading—
THE DEFENDANT: I understand that.
MR. MORGAN: The Judge is just simply pounding out the sentence today here, making it concurrent. What other counties do and when you get sentenced, he has no control over.
THE DEFENDANT: I understand.
THE COURT: And you’re not going to be concurrent with those other counties; is that right?
DEFENDANT: This will be concurrent with Allegheny and Westmoreland, right.
MR. MORGAN: Whatever you have already done, yeah.
THE COURT: Anything else? Very well, the negotiated plea is accepted then —

September 17,1992, at 5-6 (emphasis added). The court then set forth its sentence on the various charges. The court’s sentence did not include any mention of credit for time served.

When a defendant’s plea agreement is accepted, the trial court is bound to comply with the terms of that agreement. Commonwealth v. Kioske, 337 Pa.Super. 593, 487 A.2d 420 (1985). Likewise, the prosecution has the affirmative duty to honor any and all promises made in a plea bargain. Commonwealth v. Potosnak, 289 Pa.Super. 115, 432 A.2d 1078 (1981). Appellant has alleged that his plea agreement with the Commonwealth included a provision for credit against his Butler County sentence for time which he served in the Westmoreland County jail. If that allegation is true, then the Commonwealth was bound to honor that agreement.

In Commonwealth v. Edwards, 226 Pa.Super. 520, 313 A.2d 275 (1973), the appellant pled guilty with the expectation that he would be placed on probation in the care of a drug rehabilitation program as part of a negotiated plea. Id. at 522, 313 A.2d at 276. Instead, the court sentenced him to a term of imprisonment of eighteen months to five years. Appellant petitioned to withdraw his plea on the basis that it was involuntary. Id. This court determined that there existed no basis, other than appellant’s own bald assertion, which would permit appellant to withdraw his plea. Id. The court reasoned that the record contained no indication that a drug rehabilitation program had been part of the negotiated plea, and that the district attorney denied that any such agreement had been made. Id.

In Commonwealth v. Dickerson, 449 Pa. 70, 295 A.2d 282 (1972), appellant sought post-conviction relief on the basis that her guilty plea had been induced by a promise of a specific sentence, which had not been fulfilled. Id. at 72, 295 A.2d at 283. At a post-conviction hearing, both trial counsel for appellant and counsel for the Commonwealth denied that a promise had been made for the specific sentence which appellant alleged. The Dickerson court held that the allegations which appellant asserted “raised a question of credibility and the PCHA hearing judge chose to believe (as was his discretionary right) the testimony given by counsel.” Id. at 73-74, 295 A.2d at 284.

The emphasized portion of the testimony of September 17, 1992 provides some support for appellant’s allegation that his plea agreement with the Commonwealth included a provision for credit for time served. However,- it would have been necessary for the lower court to have taken testimony at an evidentiary hearing to determine if, in fact, such provision was made part of the plea agreement. -

The third requirement for relief under the PCRA is as follows:

(3) That the allegation of error has not been previously litigated and one of the following applies:
(i) The allegation of error has not been waived.
(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

42 Pa.C.S.A. § 9543(a)(3).

We have already determined that appellant’s allegation that the Commonwealth should specifically enforce the plea agreement has not been previously litigated. Waiver of an issue under the PCRA occurs “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.” Id., § 9544(b). Nearly all claims under the PCRA are waived since nearly all claims could have been raised on direct appeal. Commonwealth v. Eaddy, 419 Pa.Super. 48, 614 A.2d 1203 (1992), appeal denied, 534 Pa. 636, 626 A.2d 1155 (1993). This applies even if a first time post-conviction petitioner never obtained appellate review of the conviction. Id. 419 Pa.Super. at 56, 614 A.2d at 1208.

Appellant’s contention that the plea agreement should be enforced as alleged is clearly an issue that should have been raised in a direct appeal of the judgment of sentence. The record of sentencing and the written sentencing form both reveal that the lower court did not include credit for time served in the Butler County sentence. Since this issue could have been raised in a direct appeal, it is waived under section 9544(b).

Appellant has not alleged his innocence of the charges. Therefore, PCRA relief would be precluded under section 9543(a)(3)(h). Federal courts will excuse a state procedural default where ineffective assistance of counsel constitutes cause for the procedural default “as long as there has been no deliberate decision not to pursue the issue.” Commonwealth v. Hanes, 397 Pa.Super. 38, 44, 579 A.2d 920, 922 (1990) (citing Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). Here, appellant has alleged that trial counsel was ineffective for failing to advise him that he would not receive credit for time served as required by the plea agreement.

The record shows that after appellant was sentenced on September 17, 1992, trial counsel filed a “Motion to Establish Commitment Date.” In this motion, trial counsel alleged that appellant had not been given credit for time served even though he had been incarcerated “during the whole time of prosecution.” Counsel requested that appellant be given credit for the time he had served in prison on the charges at issue here. Motion to Establish Commitment Date, filed October 14, 1992. The lower court, on November 10, 1992, dismissed the motion and cancelled the hearing scheduled in connection with it, “as the case has been resolved.” Order of Court, November 10, 1992.

Appellant has alleged that he was not aware of the fact • that he would not receive credit for time served until March, 1993. It is clear from the record that appellant’s counsel was aware of this fact within thirty days of the judgment of sentence, as demonstrated by counsel’s “Motion to Establish Commitment Date.” It is possible that trial counsel filed the motion without consultation with appellant, thus resulting in appellant’s lack of awareness of the problem until March, 1993. However, this discrepancy between appellant’s allegations and the record should have been resolved by the lower court. If counsel did not inform appellant of the fact that he was not going to receive credit for time served, and if there was no tactical basis for counsel’s decision not to pursue the issue on appeal, appellant would meet the third requirement for eligibility for PCRA relief. 42 Pa.C.S.A. § 9543(a)(3)(iii), supra.

The final requirement for PCRA relief is that the failure to litigate an 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.” 42 Pa.C.S.A. § 9543(a)(4). We have already determined that prior counsel did not take a direct appeal of the issue of the trial court’s failure to give credit for time served. The lower court should have determined if that failure on counsel’s part was the result of “any rational strategic or tactical decision.” Id.

For all of the above reasons, it was' necessary for the trial court to have conducted a heáring on appellant’s PCRA petition. Therefore, the lower court erred in dismissing the PCRA petition without a hearing.

Order vacated. Case remanded to lower court for further proceedings in accordance with this Opinion. Jurisdiction relinquished.

POPOVICH, J., concurs in the result.

      . Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    658 A.2d 822
    COMMONWEALTH of Pennsylvania, v. John KASECKY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 7, 1995.
    Filed May 12, 1995.

      Michael S. Oreski, Asst. Public Defender, Washington, for appellant.
    John C. Pettit, Dist. Atty., Washington, for Com., appellee.
    Before CAVANAUGH, JOHNSON and SAYLOR, JJ.
   CAVANAUGH, Judge:

By criminal information filed by the Commonwealth on June 11, 1992, appellant John Kasecky was charged with one count of involuntary deviate sexual intercourse (“IDSI”) and one count of corruption of minors; these charges arising out of appellant’s alleged sexual assault of his fifteen year old daughter. Appellant eventually entered an open plea of guilty, on March 14, 1994, to one count of IDSI. Prior to sentencing, however, appellant petitioned the trial court for permission to withdraw his guilty plea. Following a hearing on this matter, the trial court denied the petition. Appellant was subsequently sentenced to serve a term of imprisonment of not less than two and one half years less two days, to not more than five years less one day. Appellant then filed this appeal, raising the following issues for our review:

I. Whether the trial court erred in not permitting the defendant to withdraw his presentence guilty plea?
II. Whether defendant’s guilty plea was entered competently due to the fact that he was under medication at the time the plea was entered?

For the reasons which follow, we affirm.

With respect to the withdrawal of a guilty plea, Pennsylvania courts have stated:

There is no absolute right to withdraw a guilty plea. Commonwealth v. Hayes, 462 Pa. 291, 341 A.2d 85 (1975). Courts have the discretion to permit or direct a guilty plea to be withdrawn at any time before sentencing. Commonwealth v. Coles, 365 Pa.Super. 562, 530 A.2d 453 (1987); Pa.R.Crim.P. 320. When a defendant moves to withdraw his plea prior to sentence, he need only show a “fair and just” reason for the withdrawal and a lack of substantial prejudice to the Commonwealth. Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984); see also Commonwealth v. Jackson, 390 Pa.Super. 639 [569] A.2d 964 (1990).

Commonwealth v. Iseley, 419 Pa.Super. 364, 371, 615 A.2d 408, 412 (1992).

Appellant makes two arguments with respect to the first issue. First, he contends that he should have been allowed to withdraw his guilty plea because he maintained his innocence throughout the proceedings, and he did not realize that, by pleading guilty, he was admitting that he committed the offense of IDSI. A review of the record, however, reveals that appellant’s assertion of innocence is being made for the first time on appeal: in his petition to withdraw his guilty plea, appellant did not contend that he should be allowed to withdraw his plea because he was innocent; and at the hearing held on the petition, appellant did not assert that he was innocent. We additionally note that appellant had been instrumental in effecting extreme delay throughout this case on the basis of his alleged poor physical condition and attendant health problems: this case has been listed for trial numerous times; appellant requested and received continuances on several occasions just prior to trial; and on at least one occasion appellant checked himself into the hospital on the eve of trial, not having informed the court, and checked himself out only after the trial had been continued. Cf Commonwealth v. Cole, 387 Pa.Super. 328, 564 A.2d 203 (1989) (bald assertion of innocence will not constitute fair and just reason for allowing withdrawal of guilty plea; appellant engaged in gamesmanship when, after pleading guilty to offense upon learning that Commonwealth had secured presence of out-of-state witness, appellant sought to withdraw plea, on the ground that he was innocent, after witness had returned to her home state). As such, we do not view appellant’s present assertion of innocence to constitute a fair and just reason for withdrawal of his guilty plea.

Appellant’s second argument is that he was unaware, at the time he pled guilty, that one of the consequences of his plea would be that he would be denied visitation with his other children. A review of the hearing testimony reveals no support for this allegation. At the hearing, a representative of Washington County Children and Youth Services testified that appellant’s visitation privileges were not denied because of his guilty plea. Thus, there is no factual basis underlying appellant’s assertion. Moreover, the denial of visitation is not germane to either a defendant’s voluntary and intelligent proffer of a guilty plea, or the trial court’s acceptance of that plea. It is an entirely collateral matter, and it does not provide a fair and just reason for the withdrawal of a guilty plea.

With respect to appellant’s second issue, that he was on medication at the time of his plea and thus was not competent to enter a plea, we likewise find no merit. We begin by noting that the record does not contain the written guilty plea colloquy which appellant completed with the aid of counsel. See Commonwealth v. Gonzalez, 415 Pa.Super. 65, 608 A.2d 528 (1992) (on appeal, appellate court may only consider record certified to it by lower court; it is appellant’s responsibility to provide reviewing court with a complete and comprehensive record for purposes of appeal). Thus, this issue is waived. We further note that appellant failed to inform either the lower court or this Court of the type medication he was taking; or to proffer expert testimony to substantiate his allegation that this medication rendered him incapable of entering a knowing and intelligent plea. As such, appellant has failed to demonstrate that he is entitled to relief.

Finally, after reviewing the transcript of the plea proceeding, and also the transcript of the hearing on appellant’s petition to withdraw his plea, we are satisfied that appellant was aware of the consequences of his plea, and understood that he was admitting that he was guilty of the offense of IDSI.

Judgment of sentence affirmed.

      . The Commonwealth nolle prossed the corruption of minors charge.

      . We note that the Commonwealth’s brief contains a copy of appellant’s written guilty plea colloquy. Although we may not consider it in our disposition of this appeal, see Gonzalez, supra, 415 Pa.Super. 65, 608 A.2d 528 we would find that it directly contradicts appellant’s assertion that he was not competent to enter a plea of guilty because he was taking medication. The colloquy indicates the following: that appellant acknowledged being on medication; that he, nonetheless, was able to understand the questions and answer them correctly; and that he both fully understood the questions and his decision to plead guilty.


author: OLSZEWSKI, Judge:

text:
    658 A.2d 824
    COMMONWEALTH of Pennsylvania v. Kenneth A. GEYER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 7, 1995.
    Filed May 19, 1995.

      Thomas J. Wagner, West Chester, for appellant.
    Brian E. Chudzik, Asst. Dist. Atty., Lancaster, for Commonwealth, appellee.

      Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

On the morning of June 25, 1993, Trooper Michael C. Witmer of the Pennsylvania State Police stopped appellant Kenneth Geyer on Route 222 in Ephrata Township and ticketed him for speeding, a summary offense. Geyer apparently volunteered that his license had been suspended, but Trooper Witmer issued no other tickets at that time. The trooper later contacted the Department of Transportation (PennDOT), which certified in a statement dated July 2, 1993 that Geyer’s license was suspended for 30 days, effective June 15.

On July 13, Trooper Witmer filed a second citation against Geyer for violation of section 1543(a) of the Vehicle Code (Title 75, Pa.C.S.A.), also a summary offense. By that time, however, Geyer had already pled guilty to the speeding violation. A district justice found Geyer guilty of the second summary offense, as did the court of common pleas after a trial de novo. Geyer now appeals the judgment of sentence, claiming that his prosecution for the second offense was barred by the compulsory joinder rule and by sections 110(l)(i) and (ii) of the Crimes Code (Title 18, Pa.C.S.A.). We disagree, and affirm.

In Commonwealth v. Campana, our Supreme Court promulgated the compulsory joinder rule by holding that all charges resulting from a single criminal episode shall be consolidated at one trial. 452 Pa. 233, 239, 304 A.2d 432, 434 (1973). The Court’s opinion was based on its interpretation of the Double Jeopardy Clause of the Fifth Amendment, as well as important societal concerns such as the conservation of judicial and public resources. Id. at 250-253, 304 A.2d at 440-441. After the United States Supreme Court reversed and remanded, our Supreme Court reaffirmed its opinion on state constitutional grounds. Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).

In the interim, our legislature enacted section 110 of the Crimes Code, which provides in relevant part that once a defendant has been acquitted or convicted, he may not subsequently be prosecuted for

(i) any offense of which the defendant could have been convicted on the first prosecution; [or]
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court.

18 Pa.C.S.A. § 110(1). More recently, the Court has stated that “[a]ny treatment of an alleged Campana rule violation as a separate and distinct claim from an asserted section 110 violation is misleading,” and that “section 110 in its entirety and the related sections of the Crimes Code are broader than our Campana rule.” Commonwealth v. Hude, 500 Pa. 482, 488, 458 A.2d 177, 180 & n. 12 (1983).

In Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), the appellant argued that because he had already pled guilty to a summary traffic offense, his subsequent prosecution for a charge of aggravated assault arising out of the same incident should be barred. The Court stated that while the traffic offense might technically have been within the jurisdiction of both the district justice and the court of common pleas, it would not interpret the statute in such a way as to ignore the traditional division of labor within our court system. Id. at 290, 455 A.2d at 1198 n. 3. Therefore, the Court reasoned, the traffic and assault offenses were not within the jurisdiction of a single court, and the second prosecution did not violate section 110. Id. at 288-292, 455 A.2d at 1197-98.

In Commonwealth v. Breitegan, the Court cited Beatty as support for its broader holding that “the compulsory joinder rule and Section 110 do not apply to prior summary convictions for traffic violations.” 500 Pa. 384, 385-386, 456 A.2d 1340, 1341, cert. denied, 464 U.S. 991, 104 S.Ct. 480, 78 L.Ed.2d 678 (1983). In Commonwealth v. Hoburn, 335 Pa.Super. 536, 485 A.2d 24 (1984), and again in Commonwealth v. Fischl, 363 Pa.Super. 173, 525 A.2d 775 (1987), we relied on the Breitegan holding in disposing of appeals similar to the one now before us. Geyer argues that this line of cases is flawed because it applies the Beatty ruling out of context.

Geyer claims that the rule of Beatty should not apply to his case because both his offenses are clearly within the jurisdiction of the same court. In so arguing, Geyer fails to take account of the further words of the Beatty Court:

Our interpretation of Section 110(l)(ii) as excluding traffic violations under the Motor Vehicle Code is further bolstered by a consideration of the purposes sought to be achieved by the legislative enactment as well as our promulgation of the compulsory joinder rule. The disposition of a summary offense in a traffic matter prior to the trial of a misdemean- or or felony does not present the type of governmental harassment of a defendant that would offend double jeopardy concerns.

500 Pa. at 290-291, 455 A.2d at 1198. In arguing against established precedent, Geyer fails to demonstrate that his guilty plea on a speeding ticket, prior to his citation for the separate violation of driving under a suspended license, presents any type of governmental harassment at all. We find the line of cases cited above to be consistent with the Beatty Court’s statement of policy.

Moreover, we find that Geyer’s claim fails under the plain language of section 110(l)(ii), which requires the second offense to have been known to the prosecutor at the time of commencement of the first trial. The record shows that on July 2, 1993, when Geyer pled guilty to the first offense, PennDOT was still in the process of issuing the report which confirmed his second violation. Therefore, the prosecutor could not yet have known which subsection of section 1543 Geyer had violated; indeed, it had not yet been confirmed that Geyer had committed any additional violations at all. We therefore reject Geyer’s attack on the bases of section 110(l)(ii) and the compulsory joinder rule.

In the alternative, Geyer claims that his case falls under section 110(l)(i), which bars prosecution for an offense of which the defendant could have been convicted at the first prosecution. We reject this claim as well, noting that the trooper was forbidden from even filing the citation until he had received the response from PennDOT. See 75 Pa.C.S.A. § 1543(d); Commonwealth v. Heckman, 404 Pa.Super. 335, 341, 590 A.2d 1261, 1264 (1991).

Geyer’s last argument is that the trooper should not have issued the speeding ticket at the scene, but should have held onto it until he received verification of Geyer’s second violation. Geyer cites no authority that would support a rule restraining our police from citing summary violations that have already been established. In fact, we note that former Rule 51A(l)(a) of the Pennsylvania Rules of Criminal Procedure required the officer to issue the traffic citation directly to defendant at the time of the offense, and we required strict compliance with this rule. Fischl, 363 Pa.Super. at 178, 525 A.2d at 777.

While Rule 51A has been superseded, it is clear that the requirement of issuing tickets at the scene has merely been relaxed in favor of the police, and that a policy of promptitude remains. See, e.g., Pa.R.Crim.P., Committee Introduction to Chapter 50 (recognizing “the importance of prompt notice that a summary offense is being alleged”); 42 Pa.C.S.A. § 5553(a) (requiring that proceedings for summary traffic violations be commenced within 30 days). The practice observed by Trooper Witmer thus conforms to our rules of criminal procedure in summary matters, and also serves the interests of the Commonwealth in issuing traffic citations in as timely and efficient a manner as possible.

Judgment of sentence affirmed.

      . This statute prohibits persons from "drivfing] a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension ... and before the operating privilege has been restored.”

      . Despite the Court’s allusion to double jeopardy, which no longer reflects the state of the law in that area, see, e.g., Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), we have previously noted that the Beatty opinion is “based solely on the Supreme Court’s interpretation of section 110.” Commonwealth v. Bellezza, 412 Pa.Super. 469, 477-479, 603 A.2d 1031, 1036 (1992).

      . Subsections (a) and (b) of section 1543 define two different offenses. When a person drives while her operating privileges have been suspended, revoked, or cancelled, she is in violation of subsection (a), which carries a fine of $200. When the offender’s license happens to be under suspension or revocation because of certain enumerated offenses, however, she is then in violation of subsection (b), which carries a fine of $1,000 and a prison term of not less than 90 days. 75 Pa.C.S.A. §§ 1543(a), (b).

      . Rule 51A has been replaced in part by Rule 60. The new rule no longer mandates that citations be issued at the time of the offense, and instead requires the officer to file a citation with the proper authority “[w]hen it is not feasible to issue the citation to the defendant or when evidence is discovered after the issuance of a citation that gives rise to additional summary charges.” Pa.R.Crim.P., Rule 60, 42 Pa.C.S.A.


author: ROWLEY, President Judge:

text:
    658 A.2d 1343

    Mary MacDONALD, Appellee, v. Patricia QUAGLIA, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1995.
    Filed May 18, 1995.

      Paul Masciantonio, Philadelphia, for appellant.
    Ira L. Mazer, Philadelphia, for appellee.
    Before ROWLEY, P.J., and CAVANAUGH and McEWEN, JJ.
   ROWLEY, President Judge:

Patricia Quaglia appeals from the Order entered in the Court of Common Pleas of Philadelphia County granting Mary MacDonald’s petition for visitation. We affirm.

The child in issue in this case, Francis Latham, was born on June 10, 1989 to Patricia Latham. Patricia Latham, Mother, died in an automobile accident and Father’s whereabouts are unknown. Patricia Quaglia, Maternal Grandmother, was given custody of the child on September 25, 1991. Maternal Grandmother had denied Mary MacDonald’s requests to visit with Child after Mother’s death. Mary MacDonald, Cousin, filed a petition for visitation with child. Cousin was granted visitation with Child on alternating Saturdays from 10:00 a.m. to 5:00 p.m. It is from this order that Maternal Grandmother appeals. The following issues are raised for our consideration.

(1) Did the trial court err in determining that appellee has standing to seek visitation with the child?
(2) Did the trial court err in determining that it is in the best interest of the child to have visitation with the child?

Maternal Grandmother first contends that Cousin, a noncustodial third party, lacked standing to seek visitation. We look to the analysis of this Court in Kellogg v. Kellogg, 435 Pa.Super. 581, 646 A.2d 1246 (1994), for resolution of this issue.

Although we begin with the presumption that in custody matters one third party may have standing vis-a-vis another third party, we do not hold that all third parties have standing vis-a-vis other third parties. We hold that for a third party to be accorded standing he or she must prove by clear and convincing evidence that he or she has . shown a sustained, substantial and sincere interest in the welfare of the child.

Id. at 587-88, 646 A.2d at 1249. Once a determination is made that a party has standing, we will review the decision under an abuse of discretion or error of law standard. Id. at 588, 646 A.2d at 1250.

In order to determine whether the evidence in the instant case was sufficient to establish that Cousin had shown a sincere and sustained interest in the child we must look to the record. The record reveals that she did. The trial court found that Cousin and Mother were raised in the same household. Cousin considered herself to be a sister to Mother and an aunt to Child. Cousin testified that she had frequent contact with Child until four days before Mother died. Cousin further testified that contact was prevented because Maternal Grandmother did not want to associate with Mary’s family. The trial court found that Cousin had a strong interest in Child so as to give her standing to seek visitation. We concur. Kellogg, supra. Therefore, we find no abuse of discretion. Id.

Next, Maternal Grandmother contends that the trial court erred in its determination that it is in the best interests of Child to have visitation with Cousin. The trial court granted visitation on alternating Saturdays, from 10:00 a.m. to 5:00 p.m. It is well established that in a visitation case, the burden is on the third party to show only that it is in the child’s best interest to give some time to the third party. Bucci v. Bucci, 351 Pa.Super. 457, 460, 506 A.2d 438, 440 (1986) (citing Commonwealth ex rel. Williams v. Miller, 254 Pa.Super. 227, 230, 385 A.2d 992, 994 (1978)).

The scope of review of an appellate court reviewing a custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992). See also Dorsey v. Freeman, 438 Pa.Super. 236, 652 A.2d 352 (1994). The scope of review of a visitation order is the same as that for a custody order. Bucci 351 Pa.Super. at 460-461, 506 A.2d at 440.

“Whether the matter concerns custody or visitation, our paramount concern is the best interest of the.child.” Norris v. Tearney, 422 Pa.Super. 246, 248-249, 619 A.2d 339, 340 (1993) (quoting McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992)). The trial court determined that it was in Child’s best interest to have contact with Cousin as the de facto aunt. Mother and Cousin grew up together. Cousin had spent more time with Mother than did Maternal Grandmother. As such, Cousin was the child’s link to his mother and his heritage. “Except under unusual circumstances, no child should be cut off entirely from one side of its family.” Commonwealth ex rel. Williams v. Miller, 254 Pa.Super. 227, 232-233, 385 A.2d 992, 995 (1978). See also In Interest of Tremayne Quame Idress, 286 Pa.Super. 480, 429 A.2d 40 (1981).

In view of the trial court’s factual findings, we do not find the visitation order to be an abuse of discretion. McMillen, supra.

Order affirmed.

CAVANAUGH, J., concurs in the result.

      . We must note that our Court had declined to give standing to a third party where to do so would interfere with the rights of a natural parent or an intact family. Noting that the legislature has specified those circumstances where intrusion is warranted, e.g., 42 Pa.C.S. §§ 6351, 6352 (dependency proceedings); 23 Pa.C.S. § 2511 (involuntary termination of parental rights); 23 Pa.C.S. § 6301 et seq. (taking an abused child into protective custody); 23 Pa.C.S. §§ 5311-5313 (grandparent’s visitation); 23 Pa.C.S. § 5301 et seq. (custody and visitation rights between parents in a divorce action), the Court concluded that the legislature intended to restrict the right of action for partial custody or visitation to lineal ascendants. Jackson v. Garland, 424 Pa.Super. 378, 622 A.2d 969 (1993). The instant case is not controlled by the holding in Jackson. The dispute here is between two third parties. As this Court noted in Kellogg v. Kellogg, 435 Pa.Super. 581, 587 n. 2, 646 A.2d 1246, 1249 n. 2 (1994), "The broad language relating to standing in Jackson is dicta except as it applied to a third party asserting rights against a natural parent.”

      . Shortly after Mother was born, Maternal Grandmother and Maternal Grandfather separated. Mother was raised by her Aunt, along with Mary MacDonald, her cousin. Mother did not see Maternal Grandmother again until Mother was twenty-four years old.

      . It is well established that:
      [a] custodial parent’s suspicion of or animosity towards another parent or a third party seeking visitation should not alone warrant denial of visitation; otherwise the custodial parent could always effectively deny visitation simply by testifying to suspicion or animosity-

        Commonwealth ex rel. Williams v. Miller, 254 Pa.Super. 227, 232, 385 A.2d 992, 995 (1978). See also Scott v. Scott, 240 Pa.Super. 65, 368 A.2d 288 (1976).

      . Cousin testified that she only wanted the right of visitation with Child. Maternal Grandmother testified that she did not want Cousin to interfere with her control over Child. She did not want Cousin to attempt to change the way she would raise Child. Although the order of the trial court permits Cousin to pick up and return child to the home of Maternal Grandmother, the order can be construed as a visitation order. “The distinguishing factors between visitation and partial custody are the length, frequency, and place of visits and who has effective control of the child during the visits.” Bucci v. Bucci, 351 Pa.Super. 457, 467, 506 A.2d 438, 443 (1986). Where the visits are of short duration, the order could be construed as one for visitation. Id. Alternatively, even if the order is construed as an order for partial custody, this does not invoke Cousin's authority to make any decisions regarding the child’s life. 23 Pa.C.S.A. § 5302 defines the pertinent terms as follows:
      “Legal custody.” The legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions.
      "Partial custody." The right to take possession of a child away from the custodial parent for a certain period of time.
      "Visitation.” The right to visit a child. The term does not include the right to remove a child from the custodial parent’s control.
      It should also be noted that counsel for Maternal Grandmother did indicate to the court that there would be no objection to a visitation order “once a month, Saturday mornings, for that family — Francis to visit with the MacDonald family. So she's not adverse to the visitation.” Notes of Testimony, 3/24/94, at 18.

      . In In Interest of Tremayne Quame Idress R., 286 Pa.Super. 480, 429 A.2d 40 (1981), this Court addressed the issue of the allocation of the burden of proof in custody cases where the dispute arose between two third parties. The Court concluded that the burden of proof should be allocated equally. It must be noted that in cases where the dispute is between a parent and a non-parent, the evidentiary scales are "tipped hard” in favor of the parent. Dorsey v. Freeman, 438 Pa.Super. 236, 652 A.2d 352 (1994) (citing In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977)). Notably, where a party seek visitation, "[t]he burden is less than that in custody cases.” Bucci v. Bucci, 351 Pa.Super. 457, 460, 506 A.2d 438, 440 (1986).


author: POPOVICH, Judge:

text:
    658 A.2d 1346
    Earl CHAMBERS, Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued April 5, 1995.
    Filed May 23, 1995.

      Alan Berman, Pittsburgh, for appellant.
    Alan T. Silko, Pittsburgh, for appellee.
    Before POPOVICH, FORD ELLIOTT and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the order of August 18,1994, entered in the Court of Common Pleas of Allegheny County. Herein, we are asked to determine whether the lower court erred in finding that appellant was not entitled to underinsured motorist coverage from appellee, Aetna Casualty and Surety Company (“Aetna”), because appellant did not exhaust the policy limits of available liability insurance. Upon review, we vacate the lower court’s order and permit appellant to assert a claim for underinsured motorist coverage.

The record reveals that on June 6, 1991, Vincent LaVelle lost control of his automobile and struck an automobile operated by appellant. Appellant brought action against LaVelle for personal injuries. LaVelle was insured by Allstate Insurance Company (“Allstate”) under a liability policy which had a limit of $100,000.00. Appellant was insured by Aetna under a policy that provided underinsured motorist coverage with a limit of $300,000.00 per person in stacked benefits. That policy included the following clause:

“We [Aetna] will pay under this coverage only after the limits of liability under any applicable bodily injury, liability bonds or policies have been exhausted by payment of judgments or settlements.”

On March 2, 1993, appellant and LaVelle entered into a structured settlement which required Allstate to pay appellant as follows:

$75,000.00 February 19, 1993

$ 4,720.00 March 22, 1998

$ 6,815.00 March 22, 2003

$ 9,850.00 March 22, 2008

$14,160.00 March 22, 2013

The total payout under the structured settlement over a period of twenty years was $110,545.00. The present value of the structured settlement on the date of settlement was $91,246.77.

On March 8, 1993, appellant filed a complaint for declaratory judgment against Aetna seeking underinsured motorist benefits. Appellant contended that the implementation of Aetna’s exhaustion clause as a condition precedent to payment of underinsured motorist benefits was void for being against public policy. On August 18, 1994, the lower court entered an order which denied appellant’s claim. This timely appeal ensued.

An appellate court’s scope of review in a declaratory judgment action is limited to determining whether the trial court committed a clear abuse of discretion or an error of law. Winkelman v. PFRACP, 418 Pa.Super. 439, 442-44, 614 A.2d 717, 719 (1992).

Recently, our court in Boyle v. Erie Ins. Co., 441 Pa.Super. 103, 656 A.2d 941 (1995), was presented with facts and issues similar to those of the instant case. In that case, Thomas and Janice Boyle brought action against Dale Hitchcock for injuries sustained when Hitchcock’s vehicle struck the Boyles’ vehicle. The Boyles entered into a settlement with Hitchcock. The settlement exhausted only fifty percent (50%) of Hitchcock’s liability coverage. The Boyles then asserted that they were entitled to underinsured motorist coverage under their own policy with Erie Insurance Company (“Erie”). Erie denied coverage on the basis that the Boyles had not exhausted the limits of Hitchcock’s liability policy as required by the exhaustion clause in the Erie policy. There, our court addressed the question of whether that clause barred the Boyles’ claim for underinsured motorist benefits. In Boyle, supra at 103, 656 A.2d 941, we made the following observations:

To enforce the policy language strictly would have the effect of .failing to provide the protection intended by the legislature for an insured driver. In some cases it may prevent an injured insured from accepting a reasonable, third party settlement and require that the third party litigation be pursued to final judgment. This would delay recovery when prompt payment was needed, would lessen the insured’s recovery by requiring him or her to pay additional costs, and would unnecessarily burden the judicial system....
On the other hand, an exhaustion clause must be interpreted to provide protection to an insurance company against a demand by its insured to fill the “gap” after a weak claim has been settled for an unreasonably small amount. The statutorily mandated coverage for underinsured motorist benefits was not intended to permit the insured absolute and arbitrary discretion to determine how payment should be apportioned between his or her own insurance company and the tortfeasor’s liability carrier....

In Boyle, supra at 103, 656 A.2d 941 (slip opinion at 6-7), our court then enunciated the following holding:

[T]he conflicting interests of insured and insurer can best and most fairly be served by construing the exhaustion clause in this case as a “threshold requirement and not a barrier to underinsured motorist insurance coverage.” Bogan v. Progressive Casualty Ins. Co., 36 Ohio St.3d 22, 28, 521 N.E.2d 447, 453 (1988), modified in part on other grounds, McDonald v. Republic-Franklin Ins. Co., 45 Ohio St.3d 27, 543 N.E.2d 456 (1989). Thus, when the insureds settled their claim against the tortfeasor’s liability carrier for less than policy limits, the underinsured motorist carrier was entitled to compute its payment to its injured insureds as though the tortfeasor’s policy limits had been paid. Accord: Hamilton v. Farmers Ins. Co. of Washington, 107 Wash.2d 721, 728, 733 P.2d 213, 217 (1987). Under this view, the insureds will not be allowed underinsured motorist benefits unless their damages exceed the maximum liability coverage provided by the liability carriers of other drivers involved in the accident; and their insurer will, in any event, be allowed to credit the full amounts of the tortfeasors’ liability coverages against the insureds’ damages. The courts of other jurisdictions have applied a similar view. See: Aetna Casualty & Surety Co. v. Farrell, 855 F.2d 146 (3rd Cir.1988) (applying New Jersey law); Schmidt v. Clothier, supra [338 N.W.2d 256 (Minn.1983) ]; Shaw v. Continental Ins. Co., 108 Nev. 928, 840 P.2d 592 (1992) (per curiam); Longworth v. Van Houten, 223 N.J.Super. 174, 538 A.2d 414 (1988); McDonald v. Republic-Franklin Ins. Co., supra; Bogan v. Progressive Casualty Ins. Co., supra; Buzzard v. Farmers Ins. Co., 824 P.2d 1105 (Okl.1991); Hamilton v. Farmers Ins. Co. of Washington, supra.

In light of our court’s decision in Boyle, supra, we find that appellant is entitled to underinsured motorist coverage from Aetna. Here, the present value of the structured settlement on the date of settlement was $91,246.77. In Boyle, supra, 441 Pa.Super. 103, 656 A.2d 941, the settlement exhausted only fifty percent (50%) of the tortfeasor’s liability coverage. In the instant case, the settlement exhausted approximately ninety-one percent (91%) of LaVelle’s liability coverage. Guided by the analysis in Boyle, supra, we find that Aetna is not required to pay $8,753.23, the difference between the settlement amount and LaVelle’s $100,000.00 liability policy. However, Aetna is required to compute its payment for under-insured motorist benefits to appellant as though LaVelle’s $100,000.00 liability policy has been paid. Aetna will be allowed to credit LaVelle’s $100,000.00 liability coverage against appellant’s damages.

We vacate the order of the lower court denying declaratory judgment to appellant and remand in accordance with this opinion. Jurisdiction is relinquished.


author: OLSZEWSKI, Judge: WIEAND, Judge,

text:
    658 A2d 1349
    Robert HANNI, Appellee, v. The PENN WARRANTY CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1995.
    Filed May 24, 1995.

      Gale T. Mayorowski, Avoca, for appellant (submitted).
    Samuel Murray, Easton, for appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

In July of 1993, Hanni purchased a 6-month/6,000 mile warranty on a 1984 Chevy Camaro from the Penn Warranty Corporation. Apparently, the car never ran well from the start, Penn Warranty did not cover repair costs as promised, and Hanni was eventually forced to bring a claim under the warranty before a district justice. Penn Warranty did not appear, so Hanni took a default judgment for $3,134.

Penn Warranty filed a timely appeal to the court of common pleas. On December 6, 1993, Penn Warranty sent certified letters to both Hanni and to the district justice, who signed and returned the receipts. Under District Justice Rule 1005(B), Penn Warranty was required to file this proof of service with the prothonotary within ten days. Pa.R.C.P.D.J. 1005(B), 42 Pa.C.S.A. Penn Warranty sent the proofs of service to the prothonotary by first class mail, but they did not arrive and get time stamped until January 4, 1994 — well over the ten-day limit.

Meanwhile, Hanni filed a praecipe to strike the appeal for Penn Warranty’s failure to file proof of service within ten days, pursuant to District Justice Rule 1006. Since the proof of service was late, the prothonotary struck the appeal as required by Rule 1006. Penn Warranty then petitioned the trial court to reinstate the appeal. A hearing was eventually held, with both parties represented by counsel. The trial court declined to exercise its discretion to reinstate the appeal, determining that Penn Warranty had not shown good cause. Pa.R.C.P.D.J. 1006; trial court opinion, 6/21/94 at 4. The parties have now ascended another rung on the judicial ladder: Penn Warranty appeals the trial court’s refusal to open its appeal.

Thus, the sole question before us is whether the trial court erred by choosing to strictly apply the rules of civil procedure. We are rarely presented with such a question. Usually, procedural questions present themselves in the opposite posture; e.g., whether a trial court abused its discretion in ignoring or bending the rules. If it could be error to simply apply a rule as written, as Penn Warranty argues, one might wonder what is the point of having it?

The record shows that Hanni received actual notice of Penn Warranty’s appeal to common pleas court; that Penn Warranty made a good faith effort to properly docket notice of its appeal with the prothonotary; but that Penn Warranty chose to trust the timeliness of the regular mail during the holiday season, when it could have used an express mail service, or brought the proofs of service to the prothonotary by hand to be docketed within the ten-day limit. The record also shows that the trial court knew that it could choose to reinstate the appeal under Rule 1006, but that it weighed the equities of the situation and declined. Id.

A similar fact situation was presented in Quarato v. Facelifters, Ltd., 305 Pa.Super. 536, 451 A.2d 777 (1982), which both parties acknowledge as the most apposite case. There, the trial court stated that it wished it could reinstate an appeal from the district justice to avoid an unduly harsh result, but felt bound to apply Rule 1005 strictly. On appeal, we noted that trial courts have the power to liberally construe and apply procedural rules under Pa.R.C.P. 126; if the trial court wanted to ignore the Rule 1005 violation, it could have and should have done so. We therefore reversed and remanded the case to allow the appeal to proceed in common pleas court. Id. at 537, 451 A.2d at 778.

Penn Warranty urges the same result here. There is one key difference, though. In Quarato, the trial court clearly indicated that it would have preferred to reinstate the appeal, but felt powerless to do so. Here, the trial court acknowledged its power to reinstate the appeal, but elected not to do so under the equities. It chose instead to apply the service rule as written.

District Justice Rule 1006 reads:

Upon failure of the appellant to [timely file proof of service], the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record. The court of common pleas may reinstate the appeal upon good cause shown.

Pa.R.C.P.D.J. 1006, 42 Pa.C.S.A. (emphasis added).

As the rule clearly states, the trial court is never required to reinstate appeals (whereas the prothonotary can be required to strike them). The rule provides two levels of discretion. First, the trial court has discretion to determine whether there is good cause for reinstating the appeal. Slaughter v. Allied Heating, 431 Pa.Super. 348, 351, 636 A.2d 1121, 1123 (1993). After examining appellant’s excuse for failing to timely file the proofs of service, the trial court is not required, but is permitted to reinstate the appeal, in its discretion. Id. at 355, 636 A.2d at 1125. Considering the weight this rule gives to the trial court’s discretion, we should be careful that we do not simply substitute our judgment as to whether an appeal should be reinstated. Rather, we should uphold any reasonable decision by the trial court, even though we might not agree with it ourselves.

Here, the record reveals that the trial court’s decision was reasonable. The trial court noted that Penn Warranty chose not to appear before the district justice, presuming that it would just appeal Hanni’s default judgment. Opinion at 4. While Penn Warranty has a right to appeal to a court of record, that right must be exercised within the confines of our procedural rules. By choosing this method to get its case to common pleas court, Penn Warranty assumed the burden of service and the risks of improper service.

Penn Warranty also chose perhaps the worst of all possible methods of getting proof of service to the prothonotary under the rule’s time constraints: holiday season mail. It could have hand delivered the proof of service or used an express mail carrier, but chose not to. The combination of these two lapses convinced the trial court not to excuse Penn Warranty’s failure to comply with the filing deadlines. Id. We cannot say that this decision was an abuse of the broad discretion accorded the trial court by District Justice Rule 1006. If, as Penn Warranty and the dissent argue, the trial court were required to ignore certain Rule 1005(B) violations, then that rule would be reduced to a mere suggestion.

Affirmed.

WIEAND, J., filed a dissenting opinion.

WIEAND, Judge,

dissenting:

Robert Hanni filed an action against The Penn Warranty Corporation before a district justice. When Penn Warranty failed to appear at a scheduled hearing, the magistrate entered a default judgment in favor of Hanni. On December 6, 1993, Penn Warranty filed a timely appeal in the Court of Common Pleas of Northampton County. On December 8, 1993, Penn Warranty sent to Hanni by certified mail a copy of the notice of appeal and a rule to file a complaint. Penn Warranty also sent a copy of the notice of appeal to the district justice by certified mail. On December 8, 1993, Penn Warranty sent proof of service to the prothonotary for filing. However, proof of service was sent via regular mail, and the prothonotary did not receive it until January 4, 1994. On January 5, 1994, upon praecipe, the prothonotary marked the appeal stricken pursuant to Pa.R.C.P.D.J. No. 1006. A petition by Penn Warranty to reinstate the appeal was denied by the trial court. Penn Warranty appealed.

The majority holds that the letter of the procedural rule must be enforced and that Penn Warranty assumed the risk of any delay in the delivery of the mail. I respectfully dissent. The appeal was properly and timely filed and timely and due notice thereof was given. It is clear, therefore, that the purpose and the spirit of Pa.R.C.P.D.J. No. 1005 have not been violated. When proof of service was sent by U.S. Mail to the prothonotary, the appellant was not required to anticipate that delivery would be delayed almost a month. Moreover, because the appellee sustained no prejudice, the appellant’s failure to file proof of service within ten days should not have prevented the appellant from pursuing its appeal. When the trial court refused to reinstate the appeal under these circumstances, I would hold, it abused its discretion.

In Delverme v. Pavlinsky, 405 Pa.Super. 443, 592 A.2d 746 (1991), the Court reversed an order refusing to reinstate an appeal after a violation of Rule 1005 had occurred. The Court said:

It is our opinion that the rules of procedure must be liberally construed so as to guarantiee] that actions such as the present one are resolved in a just, speedy and inexpensive manner consistent with the mandates of Rule 126. In the past, the majority of cases interpreting the rules of procedure relating to appeals from decisions of district justices favored a very strict and narrow interpretation of those rules. See City of Easton v. Marra, 230 Pa.Super. 352, 326 A.2d 637 (1974); Voynik v. Davidson, 69 D. & C.2267 (1975); Cluck v. Geigley, 58 D. & C.2d 429 (1972). The courts would routinely strike appeals if the rules of procedure were not followed to the letter. However, the modern trend has tended toward a more liberal interpretation of these rules.

Id. at 447-448, 592 A.2d at 748 (footnotes omitted). Accord: Pa.R.C.P. 126. Where there has been no prejudice to the appellee and where there is good cause to excuse a procedural error, a petition to reinstate an appeal should be granted. See: Quarato v. Facelifters, Ltd., 305 Pa.Super. 536, 451 A.2d 777 (1982) (appeal reinstated where there was no prejudice suffered by appellees); Katsantonis v. Freels, 277 Pa.Super. 294, 419 A.2d 778 (1980) (Per Curiam) (Rule 1005 should be liberally construed and appeal should be reinstated where appellee suffered no prejudice).

In Slaughter v. Allied Heating, 431 Pa.Super. 348, 636 A.2d 1121 (1993), the Superior Court affirmed a trial court’s refusal to reinstate an appeal because the appellant had not offered any excuse for breaching the rules. However, the Court also said:

[w]here the notice of appeal is timely filed and served upon the non-appealing party and the district justice, the intent underlying [Rule 1005] has been fulfilled and no further purpose remains to be served by penalizing the appealing party for failing to timely file the proofs of service. See Wander v. National Development Corp., 139 Pittsburgh Legal Journal at 370, 12 Pa.D. & C.4th [627] at 628-629; Berry v. Sheaffer, 42 Pa.D. & C.3d [480] at 484; Hyde v. Crigler, 133 Pittsburgh Legal Journal at 271-272, 10 Pa.D. & C.3d [769] at 774. Consequently, the mere failure to file the proofs of service in a timely manner will be disregarded where it is clear that the opposing party has received notice of the appeal and that the purpose of the rules has been satisfied.

Id. at 353-354, 636 A.2d at 1124. Accord: Berry v. Sheaffer, 42 D. & C.3d 480 (1986) (appeal reinstated where proof of service was not timely filed with prothonotary but where notice of appeal and rule to file a complaint were timely).

Most recently, in Voland v. Gray, 438 Pa.Super. 525, 652 A.2d 935 (1995), the Superior Court relied on similar considerations to hold that the trial court should have reinstated an appeal under Rule 1006. There, proof of service as required by Rule 1005 had been filed with the prothonotary twenty days late because the appellant had been confused over the difference between the sender’s receipt, which should have been attached to proof of service, and the return receipt. The appellant explained that he had filed late because the green card [return receipt] had not been returned to him within the ten day period provided by Rule 1005. The Superior Court held that the appellant had had a legitimate excuse for the technical violation of Rule 1005 and that, because the appellee had not suffered prejudice, the appeal should have been reinstated. Id., 438 Pa.Super. at 529, 652 A.2d at 936.

Here, the purpose underlying Rule 1005 has not been infringed. When the appellant mailed proof of service to the prothonotary, it had no reason to suspect that the prothonotary would not receive the correspondence until almost a month later. The majority faults the appellant for relying upon the United States Post Office instead of using an express mail service or personal messenger; however, the rules permit the reasonable use of first class mail under such circumstances, and the appellant should not be penalized for selecting that option. See: Katsantonis v. Freels, supra at 296, 419 A.2d at 779 (transmittal of proof of service to prothonotary by first class mail was not unreasonable and late filing caused by postal delay would be excused). Moreover, there could be no prejudice, for the notice of appeal had been received both by the appellee and the district justice within the ten day time period contemplated by Rule 1005.

The majority impliedly criticizes the appellant for having taken an appeal from a default judgment entered before the magistrate. However, the rules provide that any party aggrieved by a judgment of a district justice may appeal that judgment as of right to a court of common pleas. Pa. R.C.P.D.J. No. 1002. This right to appeal extends to all judgments, including default judgments. Wilkes-Barre Clay Products Co. v. Koroneos, 342 Pa.Super. 582, 585-586, 493 A.2d 744, 746 (1985).

Because the procedural default in the case sub judice was minor, occurred for reasons beyond the appellant’s control, and caused no harm or prejudice, I would reverse the order of the trial court, reinstate the appeal and remand for further proceedings.

      . As the dissent notes, we held in Slaughter that "the mere failure to file proofs of service in a timely manner will be disregarded where it is clear that the opposing party has received notice of the appeal and that the purpose of the rules has been satisfied.” Id. at 354, 636 A.2d at 1124 (emphasis added). Because of the permissive nature of Rule 1006, it would be more accurate to say that the mere failure to file proofs of service in a timely manner may be disregarded in such circumstances. Even when actual notice is satisfactory, reinstatement of the appeal is still the trial court's call, which we review on an abuse of discretion standard.


author: DEL SOLE, Judge:

text:
    658 A.2d 1353
    COMMONWEALTH of Pennsylvania v. George LANE, Appellee.
    Superior Court of Pennsylvania.
    Argued March 7, 1995.
    Filed May 24, 1995.

      Norman Gross, Asst. Dist. Atty., Philadelphia, for the Com., appellant.
    Scott B. Rudolf, Philadelphia, for appellee.
    Before DEL SOLE, BECK and CERCONE, JJ.
   DEL SOLE, Judge:

The Commonwealth appeals from the Order dismissing charges of Possession with Intent to Deliver a Controlled Substance and Knowing and Intentional Possession of a Controlled Substance brought against George Lane pursuant to 18 Pa.C.S.A. § 110. We reverse.

On the evening of April 29, 1992, Anthony Whiting was walking along a street in Philadelphia when two men approached him. One of these men, later identified as Appellee, placed a gun to Mr. Whiting’s side and took items from him, including a gold chain. Approximately four months later, on August 18, 1992, Mr. Whiting observed Appellee standing along a street. He called the police informing them of the robber’s location and description. Officers Barnes and Rhodes responded to the call and found Appellee at the location with other men. As the officers approached, the men dispersed and Appellee dropped a bag containing thirty-seven vials of crack into the bushes as he walked away. Appellee was arrested and a search of his body revealed eight more vials of crack, cash and a gold chain which the victim identified as the one stolen during the robbery.

Appellee was charged with Robbery, Criminal Conspiracy and violating the Uniform Firearms Act for the April 29, 1992 incident. Separately Appellee was charged with Possession and Possession with Intent to Deliver a Controlled Substance for the offenses committed on August 18, 1992, the day of the arrest. The Commonwealth did not move to consolidate the cases even though Appellee was arrested for all the charges on the same day. A jury trial on the Robbery charges was held on December 15, 1992. Appellee excluded the drug trafficking evidence from the Robbery trial by Motion in Limine, and he was acquitted of the charges in the Robbery case. Later, Appellee filed a motion to dismiss all drug charges which the trial court granted on the ground that the Commonwealth violated 18 Pa.C.S.A. § 110, which bars a subsequent prosecution where there has been a former prosecution for a different offense.

The pertinent section of 18 Pa.C.S.A. § 110 provides that:

§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; ____

Citing Commonwealth v. Holmes, 480 Pa. 536, 391 A.2d 1015 (1978), the trial court commented that 18 Pa.C.S.A. § 110 encourages judicial economy as it avoids repetitious litigation, and fosters due process by protecting an accused from multiple prosecutions stemming from the same criminal episode. The trial court found that Appellee’s arrest for robbery and drug charges resulted from a common criminal episode, even though the crimes of drug possession and robbery are distinct offenses which require separate proof. The court decided that the Commonwealth was aware of the crimes, but failed to consolidate them in a single proceeding as required by 18 Pa.C.S.A. § 110.

Several factors are considered when determining whether a number of criminal charges arose from a single criminal episode: (1) the temporal sequence of events; (2) the logical relationship between the acts; and (3) whether they share common issues of law and fact. Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983). “Two separate offenses may constitute the same criminal episode if one offense is a necessary step in the accomplishment of a given criminal objective or if additional offenses occur because of an attempt to secure the benefit of a previous offense or conceal its commission.” Commonwealth v. Walton, 405 Pa.Super. 281, 285, 592 A.2d 335, 337 (1991).

Appellee argues that the supreme court’s analysis in Commonwealth v. Walter Stewart, 493 Pa. 24, 425 A.2d 346 (1981), Commonwealth v. Hude, supra, 500 Pa. 482, 458 A.2d 177 and Commonwealth v. Meyers, 516 Pa. 392, 532 A.2d 789 (1987) support the trial court’s dismissal of the drug charges pursuant to 18 Pa.C.S.A. § 110. We disagree. These cases are clearly distinguishable from the case sub judice.

In Walter Stewart, the defendant was stopped and frisked by two police officers. They found a pistol on defendant and drugs lying near him on the street. On the day of the arrest, defendant was charged with possessing the firearm without a license, and the drug charges. were filed against him one month later. He was brought to trial on the firearms charges and he entered a guilty plea. Defendant was then indicted on the drug charges and he pled double jeopardy. A trial proceeded and a jury found him guilty.

The supreme court found that the two offenses committed by Stewart were part of the one episode since the crimes consisted of the possession of a gun and drugs at the exact same time. Additionally, the testimony of the same two officers regarding the same two offenses was required to convict defendant of both charges. The defendant’s arguments about the legality of the stop and arrest as well as his challenges to the officer’s credibility were relevant with respect to both charges. The court further held that the defendant did not waive his rights under 18 Pa.C.S.A. § 110 by failing to move for consolidation of the charges because he could not have moved to join the cases prior to his conviction on the first charge since the grand jury had not yet indicted him on the second charge. The court concluded that since the charges arose from the same conduct, the Commonwealth had the responsibility to consolidate the cases.

In Hude, supra, 500 Pa. 482, 458 A.2d 177, the defendant was charged with twenty counts of possession and delivery of marijuana and a count of corruption of a minor. The charges arose from a series of drug sales to the same person and the transactions took place on twenty separate days over a four month period. Nine charges were dismissed. The defendant was then brought to trial on three of the eleven drug possession and delivery charges and on the corruption charge. Defendant was acquitted of the three drug charges. The Commonwealth subsequently brought the defendant to trial on the other eight remaining drug charges. In both trials, the testimony of one man was presented by the Commonwealth to establish that he bought drugs from the defendant. The defendant was convicted of seven of the eight counts of possession and delivery.

Our supreme court held that the second prosecution on the remaining drug charges should have been barred by 18 Pa. C.S.A. § 110. The court reasoned that even though each drug sale occurred on different dates and involved varying amounts of marijuana, in both drug prosecutions, the Commonwealth’s case rested upon the credibility of one witness. The drug sales did not constitute completely independent episodes of criminal conduct so that the defendant could properly have been subjected to eleven separate trials. The court concluded that the drug charges following the defendant’s acquittal of the initial three charges arose from the same criminal episode since they were so logically interrelated that they essentially involved the same issues of law and fact. The compulsory joinder rule set forth at section 110 was created to prevent such results.

In Meyers, supra, 516 Pa. 392, 532 A.2d 789, the Attorney General was investigating a drug ring and the defendant was one of the targets. A wiretap on the telephone lines of the suspects was used in the investigation over a period of twenty-one days. Based upon the information obtained, search warrants were executed for the suspects’ homes. The police were in the process of executing a warrant when they observed the defendant leaving the residence in an automobile driven by his wife. The officers pursued the vehicle, a high speed chase ensued which ended in a auto collision between defendant and police. Defendant attempted to flee on foot, but was caught. The bag defendant carried contained $8000 in cash and drugs. Defendant was arrested, but he was only charged with assault, resisting arrest, recklessly endangering other persons and violations of the vehicle code. He pleaded guilty to these offenses. One year after the defendant’s arrest, he was charged with the drug offenses arising from the wiretap information and the drugs and cash seized from him during the arrest. The possession and delivery charges were alleged to have occurred on different days and the conspiracy allegedly was committed during the time that the wiretap was in place.

The supreme court determined that the drug possession charges brought against the defendant a year after he was arrested arose from the same criminal episode which lead to his arrest on the day of the car chase. The prosecutors knew of the possession charges when the defendant pleaded guilty to the assault and vehicle code violations, and therefore the charges should have been brought together. On the other hand, the court ruled that the later prosecution for the delivery of the drugs and conspiracy was not barred by section 110 because the delivery of the drugs occurred on a day several weeks prior to the day defendant ran from police and was caught with the drugs and cash. Nor was the conspiracy barred since it was alleged to have occurred over the entire period that the wiretap was in effect.

In Walter Stewart, Hude, and Meyers, the supreme court determined that the second prosecution was barred by the first trial because the dimes were all part of the same criminal episode and should have been tried together. Applying the analysis of these cases, the crimes committed by Appellee were not part of the same criminal episode. Appellee’s robbery offense occurred almost four months before the drug offenses and it was merely a fortuitous event that he was arrested for both crimes at the same time.

The instant case is more similar to Commonwealth v. Edward Stewart, 325 Pa.Super. 465, 473 A.2d 161 (1984) than to the cases relied upon by Appellee. There, the defendant was arrested and charged with theft by receiving stolen property in connection with the taking of motor oil and some tools from an auto shop earlier that evening. After the arrest, a search warrant was executed for his vehicle which revealed the motor oil and tools. The police also found luggage containing drug paraphernalia and a substance which appeared to be illegal drugs. The police did not seize the drugs until the following day when another search warrant was obtained. Defendant was tried and acquitted of the theft charges. The complaint for drug possession was not filed until four months later. The defendant argued that the charges should be dismissed because the drug possession arose from the same criminal episode as the theft charges, therefore, the prosecution should be barred under 18 Pa.C.S.A. § 110.

This court held that the prosecution for drugs was not barred under the statute. Theft and possession of a controlled substance are not the same criminal act, and the law defining each of these crimes requires proof of facts not required by the other. We also commented that the temporal relationship between the theft and drug possession charges is more theoretical than real. We elaborated:

In theory, therefore, it may be said that because both offenses were continuing, they occupied the same time frame at the moment when police searched appellant’s automobile and found not only stolen property but controlled substances as well. In actuality, however, the temporal relationship between the two offenses is less than clear. The crime of theft by receiving stolen motor oil and mechanic’s tools had its genesis in an unlawful taking which occurred during the early evening of August 16, 1980. There is no basis in the evidence here presented for finding that appellant’s possession of controlled substances commenced at the time of the theft or at the time when appellant came into possession of the stolen property.

Id. 325 Pa.Super. 465, 471, 473 A.2d 161, 164. We concluded that the crimes were not logically related and the temporal relationship was marginal. The two offenses were not part of the same criminal episode simply because evidence pertinent to both cases was found during the same search. See also Commonwealth v. Pinkston, 342 Pa.Super. 333, 492 A.2d 1146 (1985) (Even though defendant was arrested and recovery of the property on all charges occurred simultaneously, the receipts of stolen property arose from two separate burglaries committed eight months apart and therefore the acquittal of defendant in one burglary did not bar the prosecution in the second charge of burglary).

In the present case,, the robbery and the drug charges were not temporally or logically related, nor did they have common issues of law or fact. The only similarity was that Appellee was arrested for the crimes at the same time and Appellee coincidentally possessed one of the robbery items at the time of the arrest. The prosecution was not obliged to join the cáses under 18 Pa.C.S.A. § 110 as they were not part of the same criminal episode. Thus, the order dismissing the charges of Possession with Intent to Deliver a Controlled Substance and Knowing and Intentional Possession of a Controlled Substance is reversed.

Order reversed. Charges reinstated and case remanded for trial. Jurisdiction relinquished.