author: POPOVICH, Judge.

text:
    679 A.2d 1266
    Peggy Harriet CADE, Appellant, v. Brian Samuel McDANEL and Forrest McDanel, t/d/b/a McDanel Painting, Appellees.
    Superior Court of Pennsylvania.
    Argued April 10, 1996.
    Filed June 12, 1996.
    Reargument Denied Aug. 22, 1996.

      James J. Loll, Beaver, for appellant.
    Michael B. Jones, Beaver, for appellees.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

This is an appeal from an order of the Court of Common Pleas of Beaver County granting summary judgment in favor of Brian S. McDanel and Forrest McDanel, t/d/b/a/ McDanel Painting, in an action for personal injuries sustained by appellant. The lower court’s order was based on its belief that there was insufficient evidence to enable the fact finder to infer that Brian S. McDanel’s conduct was the proximate cause of appellant’s injuries. On appeal, appellant contends that the lower court erred in granting summary judgment in favor of the appellees.

Specifically, appellant contends the following: 1) The lower court erred as a matter of law in concluding that she failed to present sufficient evidence to enable the fact finder to infer reasonably that Brian S. McDanel’s conduct was the cause of her injuries; and 2) The lower court erred as a matter of law in concluding that she failed to present sufficient evidence to support the existence of a master-servant relationship necessary for a finding of vicarious liability. After a careful review of the record, the parties’ briefs and the applicable law, we reverse the lower court’s order of summary judgment in regard to the issue of causation and remand for proceedings consistent with this opinion. However, we affirm the lower court’s order of summary judgment in regard to the issue of vicarious liability.

At the outset of our analysis, we must address the appellees’ motion to dismiss this appeal. The appellees argue that we should dismiss appellant’s appeal because numerous deficiencies exist substantially hampering our ability to address effectively the merits on appeal. Specifically, the appellees assert that appellant’s appeal should be dismissed for the following reasons: 1) Appellant failed to provide this Court with the original, certified transcripts of the depositions taken by her and the appellees; and, 2) Appellant failed to file a designation of the parts of the reproduced record which she intended to present on appeal. We find the appellees’ arguments to be meritless, and, accordingly, we deny them motion to dismiss.

We agree with the appellees’ assertions that it is appellant’s responsibility to supply this Court with a complete record for purposes of review. Pa.R.A.P. 1911(a); Pa.R.A.P. 1921; Smith v. Smith, 431 Pa.Super. 588, 637 A.2d 622 (1993). “[A] failure by ... appellant to insure that the original record certified for appeal contains sufficient information to conduct a proper review constitutes a waiver of the issue[s] sought to be examined.” Smith, 637 A.2d at 623-624. This includes supplying this Court with the official transcripts of deposition testimony. See Smith, supra.

A close inspection of the original, certified record in this case discloses that appellant did, in fact, provide this court with the deposition testimony of herself, appellee Brian S. McDanel and Irene Mae Cade. The certified record also includes the affidavits of Sharon L. Whitmore and appellee Forrest McDanel. Clearly, the appellees’ contentions to the contrary are incorrect. Accordingly, we find that appellant has fulfilled her obligation under Pa.R.A.P. 1911(a) and 1921, and has provided this Court with a complete, original record sufficient for appellate review.

The appellees also assert that this appeal should be dismissed because appellant failed to file a designation of the parts of the reproduced record which she intended to present on appeal. The appellees allege that appellant’s failure to serve them with a copy of the designated reproduced record pursuant to Pa.R.A.P. 2154(a) prevented them from having notice as to the parts of the record upon which appellant relied, and, consequently, they were prejudiced. We find this argument also to be meritless.

In Helms v. Boyle, 431 Pa.Super. 606, 637 A.2d 630 (1994), we held that an appellant’s failure to serve a timely designation of the reproduced record did not warrant dismissal where the appellees failed to demonstrate that they were prejudiced by the procedural defect. Likewise, in Downey v. Downey, 399 Pa.Super. 437, 582 A.2d 674 (1990), we refused to dismiss an appeal because of appellant’s failure to serve the appellees with a copy of the designated reproduced record. In Downey, we noted that “Pa.R.A.P. 2156 expressly permits ... appellee[s] to file ... [their] own supplemental reproduced record with the court when the parties are unable to cooperate on the preparation of the reproduced record.” Id., 582 A.2d at 678. We then further noted that upon realizing that appellant had failed to include a copy of the entire hearing transcript in the reproduced record, the appellees failure to file a supplemental record did not warrant dismissal of the appeal.

Here, once it became apparent to the appellees that the entire transcript was not contained in the reproduced record, the appellees supplemented the record by the addition of the deposition testimony transcripts and other material which they deemed to be relevant. Also, we received a brief from the appellees, and all of the material submitted in the appellees’ supplemental reproduced record was contained in the certified record. Accordingly, we fail to see how the appellees were prejudiced by appellant’s failure to serve a designation of the reproduced record which she intended to file.

As for the appellees’ contention that they incurred substantial costs in filing a supplemental reproduced record and that appellant should be required to reimburse them for their expense, we again note that the certified record contained all of the materials found in the appellees’ supplemental reproduced record. See Pa.R.A.P. 2154(a) (“In designating parts of the record for reproduction, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination and shall not engage in unnecessary designation.”). In addition, pursuant to Pa. R.A.P. 2156, appellees are required to incur the costs necessary to “prepare, serve and file a supplemental reproduced record.” Accordingly, we find this argument to be meritless.

Having concluded that the appellees’ motion to dismiss is meritless, we shall address the issues raised by appellant.

Our scope of review is plenary when reviewing the propriety of a lower court’s entry of summary judgment. Schriver v. Mazziotti, 432 Pa.Super. 276, 638 A.2d 224, 225 (1994), alloc. denied, 539 Pa. 638, 650 A.2d 52 (1994). We must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. Chrysler Credit Corp. v. Smith, 434 Pa.Super. 429, 643 A.2d 1098, 1100 (1994). We will only reverse the lower court’s grant of summary judgment if there is a manifest abuse of discretion. Accu-Weather, Inc. v. Prospect Communications, Inc., 435 Pa.Super. 93, 644 A.2d 1251 (1994). An abuse of discretion occurs “when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 625 A.2d 1181, 1185 (1993). Summary judgment should be granted “only in cases where the right is clear and free of doubt.” Chrysler Credit Corp., 643 A.2d at 1100 (citation omitted). “Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality.” Liles v. Balmer, 389 Pa.Super. 451, 567 A.2d 691, 692 (1989). In addition, pursuant to Pennsylvania Rule of Civil Procedure 1035(b), summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”

Viewing the record in the light most favorable to appellant, the non-moving party, the record reveals the following pertinent facts: Prior to October 24, 1993, appellant and appellee Brian S. McDanel had been dating for a short period of time. On October 24, 1993, the couple attended a party at a friend’s house. Brian drove the couple to the party in his father’s 1993 Chevrolet S-10 pickup truck. While at the party, Brian consumed two mixed drinks and a few beers. The couple left the party around midnight, and Brian began to drive appellant home.

On their way home from the party, appellant repeatedly requested that Brian stop the truck because he was driving too fast. When he failed to do so, she grabbed the gearshift and the truck came to an immediate stop. This angered Brian. While the truck was stopped, he exited it to relieve himself. When Brian returned to the truck, he discovered that appellant had removed the keys from the ignition. Brian demanded that she return the keys to him. When appellant refused to do so, Brian struggled with her and was finally able to retrieve the keys.

Brian then started the truck and continued to drive appellant home. Appellant again requested that Brian “slow down.” He did not respond. At this point, appellant was seated straight forward in the passenger’s seat with her window in a cracked position. Approximately half an hour later, appellant was ejected from the moving truck from the passenger’s side.

Shortly after appellant’s ejection from the truck, the police arrived on the scene. The police observed Brian staggering and acting in a belligerent manner. When questioned about the incident, Brian indicated that he was unsure as to how appellant was ejected from the vehicle. After failing a field sobriety test, Brian was arrested on the scene for driving while under the influence of alcohol. He later pleaded guilty to the charge.

Immediately after the incident, appellant was admitted to Harmarville Hospital where she remained in a coma for eleven days. As a result of her injuries, appellant suffered amnesia. However, in regard to the accident, appellant is certain that she did not voluntarily jump from the truck. In addition, in deposition, appellant clearly testified that prior to falling out of the truck she felt a force against a part of her body. Appellant testified that this force felt “like somebody was pushing ... [her] out [of the truck].” Appellant also testified that just prior to her ejection, the truck had swerved dangerously causing her heavy purse to push against her body.

In deposition, Brian testified that appellant opened the truck’s door and voluntarily jumped from the moving vehicle. He further testified that appellant gave no warning that she was going to jump. Brian also testified that prior to appellant jumping out of the truck, he informed her to “shut that fucking door.”

Appellant filed an action in negligence to recover damages sustained when she fell out of the truck. The appellees filed a motion for summary judgment. The lower court held oral argument on the motion, and, subsequently, granted the appellees’ motion for summary judgment, thereby determining that appellant failed to demonstrate that Brian was the proximate cause of her injuries or that his father, Forrest McDanel, was vicariously liable for his son’s actions. This appeal followed.

In this case, there is no dispute that appellant fell from the truck driven by Brian or that she sustained personal injuries as a result thereof. However, the appellees claim that there is no genuine issue for trial because the evidence produced by appellant is not sufficient to demonstrate that Brian’s conduct caused appellant’s fall. On the other hand, appellant argues that there is sufficient circumstantial evidence from which a jury could infer reasonably that Brian’s conduct caused her injuries. Having reviewed the depositions presented by appellant in response to the appellees’ summary judgment motion, we agree with appellant that she has raised a genuine issue of material fact regarding causation, and, accordingly, we find that summary judgment was improperly granted.

In arguing that she presented sufficient circumstantial evidence to infer that Brian’s conduct caused her injuries, appellant relies on the historic decision in Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959), in which our supreme court stated the following:

It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability ... The facts are for the jury in any case whether based upon direct or circumstantial evidence where a reasonable conclusion can be arrived at which would place liability on the defendant. It is the duty of plaintiff to produce substantial evidence which, if believed, warrants the verdict [s]he seeks. The right of a litigant to have the jury pass upon the facts is not to be foreclosed just because the judge believes that a reasonable man might properly find either way. A substantial part of the right to trial by jury is taken away when judges withdraw close cases from the jury. Therefore, when a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deductible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact-finder any other evidence and reasonable inferences therefrom which are inconsistent therewith.

Smith, 153 A.2d at 480.

In rejecting appellant’s argument that there was sufficient circumstantial evidence from which it could be inferred that Brian’s conduct caused her injuries, the lower court also relied on Smith in which our supreme court espoused the equally well-settled rule that “the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but ... there must be evidence upon which logically its conclusion may be based.” Smith, 153 A.2d at 479.

Although admittedly this is a close case, we conclude that appellant’s evidence met the Smith test for circumstantial proof. Without resort to conjecture, the jury would have had a rational basis to choose, over any other inference suggested by the evidence, the inference that Brian’s conduct caused appellant’s injuries.

A review of the record reflects that Brian was the driver of the vehicle from which appellant was ejected on October 24, 1993. The record further reveals that Brian was driving the vehicle while under the influence of alcohol, and, in fact, had a blood alcohol level of .108%. Appellant testified that during the drive home, she repeatedly asked Brian to “slow down” and that on one occasion she grabbed the gearshift, causing the truck to immediately stop, because he was speeding. She further testified that she removed the keys from the vehicle but that during a struggle Brian was able to regain control of the keys and continued the drive home. Appellant then testified that during the drive she remembered the truck “swerving dangerously,” that she felt a force against a part of her body and that she was then ejected from the truck. While appellant testified that the incident occurred rather quickly, she was certain that she did not jump from the truck. Rather, she testified that Brian either pushed her out of the truck or that she fell out as a result of his negligent driving. In depositions, the following exchange occurred between appellant and the appellees’ attorney:

Q: Do you have any remembrance or recollection of ... [falling out of the truck?] I want to know if you, without consulting anyone else or reading anything else, have any independent recollection or remembrance of what occurred?
A: I remember falling. I didn’t jump. I know I didn’t jump. I was either pushed or ejected out of the car.
Q: Do you have any specific remembrance or recollection of being pushed out of the car?
A: Well, I know there was a force. It was either being pushed or just being, you know, thrown from the car.
Q: How do you know that there was a force or that you were being thrown from the car?
A: Because I felt a force before I had fallen.
Q: Can you describe this force to me? Can you tell me what it felt like?
A: Like somebody was pushing me out.

N.T. 1/6/95 p. 47.

Appellant’s evidence, if believed, reasonably suggested that she was either pushed out of the truck by Brian or that his negligent driving caused her to be ejected from the truck. For those who may argue that there was room for impermissible speculation as between appellant’s two theories of causation, we emphasize that in avoiding summary judgment appellant “need not negate all other possible causes of an occurrence, ... or prove with mathematical certainty, to the exclusion of other possibilities, that an occurrence could only have been caused in one manner consistent with ... [the appellees’] liability.” Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456, 466 (1984) (citations omitted).

Moreover, we note that even if the jury were to believe the appellees’ contention that appellant jumped from the truck, it does not preclude a finding of liability on behalf of Brian. From the circumstantial evidence presented, the jury could infer that appellant, who was in the custody of a criminal (drunken driving), jumped from the moving truck out of fear produced by the criminal’s actions, and, therefore, did not “voluntarily” jump from the moving truck.

Taken as a whole, we find that appellant presented sufficient evidence to create a jury question on causation, and, consequently, the lower court erred in granting summary judgment in favor of the appellees on this particular issue.

Appellant’s next contention is that the lower court erred as a matter of law in concluding that she failed to present sufficient evidence to support the existence of a master-servant relationship between Brian and his father, t/d/b/a/ McDanel Painting, necessary for a finding of vicarious liability. We disagree.

“Ordinarily, the question of the existence of a ... master-servant relationship is one of fact for the jury to determine.... However, where the facts giving rise to the relationship are not in dispute, ‘the question of the relationship between the parties is one which is properly determined by the court.’ ” Breslin By Breslin v. Ridarelli, 308 Pa.Super. 179, 454 A.2d 80, 82 (1982) (citations omitted).

Here, there is no genuine issue of material fact regarding the evidence submitted concerning the facts giving rise to the relationship at issue. The uncontradicted evidence of record indicates the following: Forrest McDanel and his wife, Jacquelyn, were the sole owners of the non-commercial 1993 Chevrolet S-10 pickup truck which their son, Brian, was driving on the early morning of October 24, 1993. Brian was informed that he could use the truck whenever it was necessary, and that he had express permission to use the truck during the time at issue. On October 24, 1993, Brian was using the truck for the personal purpose of attending a friend’s party. He was not using the truck for purposes relative to McDanel Painting, nor was he using the truck on behalf of his mother or father.

Having found no genuine issue of material fact regarding the relationship at issue, we must determine whether the lower court erred as a matter of law in finding that there was no master-servant relationship between Brian and his father, the appellee/owner of the truck. In Breslin, supra, we addressed an issue similar to the one presented in the case at bar.

In Breslin, we examined the relationship between a husband/owner and a wife/operator of a vehicle. In that case, we noted the following:

The family use doctrine is not a part of the law in Pennsylvania. The mere fact of the spousal relationship is insufficient to impose liability upon the husband-owner for the wife-driver’s negligence, if any. Similarly, the mere fact that the husband-owner has given permission to his wife to use the vehicle is insufficient to establish an agency or master-servant relationship. To establish liability against an absent owner, it must be shown not only that the driver was the owner’s servant but also that such servant was at the time engaged in the master’s business so as to be subject to the master’s control or right of control. Vicarious liability will be imposed in situations involving non-commercial vehicles only where the master possessed the right to control the servant’s acts. If a particular agent is not a servant, the principal is not considered a master who may be held vicariously liable for the negligent acts of the agent. A servant is an agent whose physical conduct in the performance of the service is controlled or is subject to the right of control by the master; that is, a master controls not only the results of the work, but the manner in which the work is to be performed. To impute negligence, the party so contending must show that the driver was under the control of the owner as fully as if the driver were a paid servant. Negligence will not be imputed to the husband of a motorist where the uncontradicted evidence is that the motorist was on a mission of her own and that her husband had not ordered or requested her to do anything for him.

Breslin, 454 A.2d at 82-83 (emphasis in original) (citations omitted).

While we acknowledge that the relationship at issue in Breslin was that of a husband/owner and a wife/operator, it is reasonable to conclude that our holding is to be extended to a father/owner and a child/operator relationship. Keeping this rule of law in mind, we now turn to the issue of whether a master-servant relationship existed between Forrest and his son, Brian, when Brian was driving his father’s truck during the morning hours of October 24, 1993.

The record clearly establishes that Brian used his father’s vehicle for purely personal reasons. Brian’s deposition discloses unequivocally that he used his father’s truck to transport him and his date, appellant, to a friend’s party. Forrest was not present in the truck at the time of the incident, and there was no indication whatsoever of any right of the owner to control the operation of his vehicle. It is also uncontradicted that Forrest did not request or order his son to do anything for him during the time at issue. Rather, Brian was on a mission of his own. Moreover, the mere fact that Brian was driving the vehicle with his father’s permission, without more, was insufficient to establish a master-servant relationship. Breslin, supra. There is a long line of cases establishing that “in cases not involving business automobiles, ... it is necessary for ... [appellant] to prove not only that the driver was the servant, but that such servant was at the time engaged in the master’s business.” Breslin, 454 A.2d at 83 (citations omitted). Here, there is no evidence that Brian was engaged in his father’s business at the time of appellant’s injuries. Consequently, we find that Brian’s use of his father’s car was insufficient to establish a master-servant relationship and was insufficient to impose vicarious liability upon Forrest for the alleged torts of his son. Accordingly, we find that the lower court did not err in awarding summary judgment in favor of the appellees on this issue.

Considering all of the evidence in the light most favorable to the appellant, we find that the lower court erred in concluding that she failed to present sufficient evidence to enable the fact finder to infer reasonably that Brian’s conduct was the cause of her injuries, and, therefore, the lower court erred in granting summary judgment in favor of the appellees on the issue of causation. Accordingly, we reverse that part of the court’s order entering summary judgment on this particular issue, and remand for proceedings consistent with this opinion. However, we further find that the lower court did not err in concluding that as a matter of law appellant failed to present sufficient evidence to support the existence of a master-servant relationship between Forrest and his son, Brian, and, therefore, the lower court did not err in granting summary judgment in favor of the appellees on the issue of vicarious liability. Accordingly, we affirm that part of the court’s order entering summary judgment on this particular issue.

Order entering summary judgment reversed and remanded in part; affirmed in part; motion to dismiss denied; jurisdiction relinquished.

      . Brian’s father, Forrest McDanel, was the owner of the truck involved in this incident. Forrest McDanel also trades and does business as McDanel Painting.

      . The four elements necessary to establish a cause of action in negligence are: “a duty or obligation recognized by law; breach of that duty by the defendant; causal connection between the defendant’s breach of that duty and the resulting injury; and actual loss or damage suffered by the complainant.” Reilly v. Tiergarten, Inc., 430 Pa.Super. 10, 633 A.2d 208, 210 (1993) (citation omitted).

      . In her brief, appellant asserts that there is a genuine issue of material fact regarding whether the truck driven by Brian was a commercial or non-commercial vehicle. Appellant further asserts that she believes that the truck was titled in the name of McDanel Painting, and, therefore, the truck was a commercial vehicle, entitling her to the presumption that the operation of the truck was for the owner’s purposes. See Waters v. New Amsterdam Casualty Company, 393 Pa. 247, 144 A.2d 354 (1958). Our thorough review of the certified record indicates that there is no evidence in the record supporting appellant’s assertion that the truck at issue was a commercial vehicle. Appellant’s bald assertion in her brief claiming that the truck was titled in the name of McDanel Painting is not a fact of record which can support her position. Adoption of M.S., 445 Pa.Super. 177, 664 A.2d 1370 (1995) (for purposes of appellate review, what is not of record does not exist). The uncontradicted evidence indicates that Forrest McDanel and his wife, Jacquelyn, are named as the sole owners of the truck. There is no evidence supporting appellant’s allegation that the truck was titled in the name of McDanel Painting, or any other indication in the record that the truck was a commercial vehicle. Because there is no evidence in the official record that the truck was a commercial vehicle, there is no genuine issue of material fact regarding the status of the vehicle. Consequently, appellant’s claim that the truck was a commercial vehicle, and, thus, she is entitled to the presumption that the operation of the truck was for the owner’s purposes must fail. See Waters, supra (holding that in Pennsylvania there is a rule that proof of the ownership of a business vehicle involved in an accident raises a presumption that the operation of the automobile was for the owner’s business purposes).

      . Although Forrest McDanel and his wife, Jacquelyn, are co-owners of the truck their son, Brian, was driving on October 24, 1993, appellant did not name Jacquelyn as a defendant in this matter.


source: Caselaw Access Project

license: Public Domain

text:
    679 A.2d 1275
    MacKINTOSH-HEMPHILL INTERNATIONAL, INC., a Corporation and Mackintosh-Hemphill Manufacturing Co., a Corporation, through Lawrence N. Ravick, Bankruptcy Trustee, Appellants, v. GULF & WESTERN, INC., Gulf & Western Industries, Inc., Gulf Western Manufacturing Co., and Wickes Manufacturing Company, Appellees.
    Superior Court of Pennsylvania.
    Argued April 9, 1996.
    Filed June 12, 1996.
    Reargument Denied Aug. 23, 1996.

      Louis M. Tarasí, Jr., Pittsburgh, for appellants.
    Michael Cardozo, New York City, for appellees.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of the Court of Common Pleas of Allegheny County dated November 8, 1995, denying appellants’ petition to open the judgment of non pros entered in favor of appellees, Gulf & Western, Inc. (Gulf & Western) and Wickes Manufacturing Company (Wickes), for a lack of docket activity. Herein, appellants, MacKintoshHemphill International, Inc. (Mack-Hemp) and Lawrence N. Ravick, Bankruptcy Trastee, contend that the lower court erred in failing to open the judgment of non pros because 1) they had a compelling reason for their five-year delay in prosecution of this case, 2) appellees were not prejudiced by the delay, 3) appellees waived their right to assert non pros, 4) the “law of the case doctrine” was violated, 5) they devoted significant resources in preparing this case for trial such that it was inequitable for the lower court to grant non pros in favor of appellees, and 6) the lower court’s retroactive application of Penn Piping, Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992), to this case was unconstitutional. We affirm.

The rather lengthy factual and procedural history of this case is as follows: This case stems from appellant Mack-Hemp’s purchase of the assets of a steel manufacturing division from appellees in 1983. When the manufacturing division was sold to Mack-Hemp, the employees’ retirement medical benefits were vested. Mack-Hemp alleges that this fact was not disclosed to them by appellees.

In 1987, after the collective bargaining agreement which was in effect when Mack-Hemp purchased the manufacturing division expired, Mack-Hemp attempted to terminate the employees’ retirement medical benefits. On March 22, 1987, the retirees commenced a putative class action (the Wernert Action) in the United States District Court for the Western District of Pennsylvania against both Mack-Hemp and Gulf & Western seeking restoration of their group health insurance, or damages for the cancellation of their insurance benefits contrary to the collective bargaining agreement. Gulf & Western settled the Wernert Action as to themselves by agreeing to share the cost of the health insurance with employees who retired before the acquisition. The Wernert Action was stayed as to Mack-Hemp because it filed for bankruptcy in July 1987. Thereafter, Lawrence N. Ravick was appointed as Mack-Hemp’s bankruptcy trustee.

On May 5, 1988, the bankruptcy court granted Mr. Ravick’s application to retain Louis M. Tarasí, Jr., Esq. as special counsel to pursue Mack-Hemp’s claims against appellees. On May 11,1988, the writ of summons was filed in this case. The docket reflects that no further action was taken until November 29, 1993, at which time appellants filed a complaint alleging that they had been defrauded in 1983 by appellees’ alleged failure to disclose that the retirees’ medical benefits were vested.

On December 17, 1993, appellees removed the case to The United States District Court for the Western District of Pennsylvania. On December 27, 1993, appellees filed an answer to appellants’ complaint, alleging that appellants’ delay in prosecution constituted laches and barred their recovery. By court order dated January 21, 1994, the federal district court referred the action to the United States Bankruptcy Court for the Western District of Pennsylvania. After concluding that this case should be heard in the federal district court and not in the bankruptcy court, the reference to the Bankruptcy Court was withdrawn on June 1, 1994. On June 24, 1994, after the reference to the Bankruptcy Court was withdrawn, appellees filed in the federal district court a motion to dismiss alleging that appellants’ delay in the action barred their recovery. On August 31, 1994, the federal district court ordered the action to be remanded to the Court of Common Pleas of Allegheny County. The federal district court declined to rule on appellees’ motion to dismiss.

On October 3, 1994, shortly after the case was remanded to the court of common pleas, appellees filed an amended answer and moved for judgment on the pleadings. In both documents, appellees contended that appellants’ delay in prosecuting this case barred them from recovery. On November 14, 1994, appellees filed a supplemental memorandum of law in support of their motion for judgment on the pleadings, again asserting that appellants’ delay in prosecution barred them from recovery. On February 16, 1995, the court of common pleas denied appellants’ motion for judgment on the pleadings, but granted them leave to file a petition for entry of a judgment of non pros.

On February 24, 1995, appellees filed a petition for entry of a judgment of non pros. Following oral argument, by order dated May 9, 1995', the lower court issued an order to show cause why a judgment of non pros should not be issued. The lower court then directed that discovery was to be conducted concerning the question of whether appellants had devoted significant resources in preparing the case for trial during the fifteen months between the filing of the complaint in November 1993 and the filing of the non pros petition in February 1995. Pursuant to the lower court’s order, the parties engaged in limited discovery for the sole purpose of determining whether appellants had devoted significant resources in preparing the case for trial.

On August 30, 1995, the lower court issued an order granting appellees’ petition for a judgment of non pros. On September 8, 1995, appellants filed a petition to open the judgment of non pros. This petition was denied on November 8, 1995, thereby rendering the order of non pros final. This appeal followed.

At the outset of our analysis, we note that our standard of review in regard to a request to open a judgment of non pros is well-established.

A request to open a judgment of non pros is by way of grace and not of right and its grant or refusal is peculiarly a matter for the [lower] court’s discretion. We are loathe to reverse the exercise of the court’s equitable powers unless an abuse of discretion is clearly evident. Before a petition to open a judgment of non pros may be granted, the moving party must 1) promptly file a petition to open, 2) present a reasonable explanation or excuse for the default or delay that precipitated the non pros, and 3) establish that there are sufficient facts to support a cause of action.

Dorich v. DiBacco, 440 Pa.Super. 581, 656 A.2d 522, 524 (1995) (citations omitted).

In this case, appellants filed their petition seeking to open the judgment of non pros in a timely fashion. It is also undisputed that there are sufficient facts to support a cause of action in this case. However, the lower court determined that appellants failed to provide a reasonable explanation or excuse for the delay that precipitated the non pros in this case, and, therefore, refused to open the judgment of non pros entered in favor of appellees.

Appellants’ first and second allegations are that the lower court erred in denying their petition because they had justifiable reasons for any delay on their part, and appellees did not establish that they were prejudiced by the delay. We disagree.

[P]laintiff[s] ha[ve] an affirmative duty to prosecute [their] action within a reasonable time. Before a court may dismiss an action for lack of docket activity, it must be demonstrated that (1) a party has shown a lack of due diligence by failing to proceed with reasonable promptitude; (2) there is no compelling reason for the delay; and, (3) the delay has caused prejudice to the adverse party, which will be presumed in cases involving a delay for a period of two years or longer. In cases where the delay was caused by bankruptcy, liquidation or other operation of law, or where the case was delayed awaiting significant developments in the law, there will be an automatic determination that a compelling reason for the delay has occurred. Other compelling reasons may be determined on a case-by-case basis.

Dorich, 656 A.2d at 524 (citing Penn Piping, supra) (emphasis added).

Here, more than five years passed from the time appellants instituted this lawsuit by writ of summons on May 11, 1988, and the filing of the complaint on November 29,1993. The docket reflects that there was no activity during this five year period. Therefore, we find that appellants demonstrated a lack of due diligence in failing to proceed with reasonable promptitude. In addition, because this delay exceeded two years, we will presume that the delay caused prejudice to appellees. Penn Piping, supra; Dorich, supra.

Nevertheless, appellants maintain that the delay was justified in this case. Specifically, appellants maintain that the delay in this ease was justified because they were in bankruptcy during the time of the delay. We find appellants’ allegation to be meritless.

We agree with appellants’ assertion that in Penn Piping and Dorich it was held that when the delay in docket activity is caused by bankruptcy it is a per se compelling reason for the delay. Penn Piping, 603 A.2d at 1009 n. 2; Dorich, 656 A.2d at 524. However, we disagree with appellants’ assertion that the fact that they were in bankruptcy during the time at issue caused the delay in this case. It is not enough for appellants to assert that they were in bankruptcy during the time at issue. Rather, appellants must demonstrate how being in bankruptcy caused the delay in this case. This they have failed to do.

The record reveals that appellants were placed in bankruptcy in July 1987. Ten months later, Attorney Tarasí, on application of the bankruptcy trustee and with the approval of the bankruptcy court, was appointed special counsel to prosecute this action. Six days after Attorney Tarasi’s appointment as special counsel, the summons in this case was served. No further action was taken by Attorney Tarasí until approximately five years later when a complaint was filed on November 29,1993.

From the record, it is clear that appellants’ lawsuit was instituted in the Pennsylvania courts with the permission of the trustee in bankruptcy and with the approval of the bankruptcy court. In addition, from the record, it is clear that appellants were in bankruptcy prior to the serving of the summons in this case, and that the bankruptcy court did not prevent them from proceeding with this lawsuit. However, appellants argue that this Court must still conclude that bankruptcy was the cause of the delay in this case because Lawrence N. Ravick, Bankruptcy Trustee, decided not to proceed with this suit in order to preserve the resources of the bankrupt’s estate. We disagree.

“It has been held many times that ... financial considerations do not present compelling reasons for delay.” County of Erie v. Peerless Heater Company, — Pa.Commw.Ct. —, 660 A.2d 238, 240 (1995). See Penn Piping, supra (plaintiff has duty to proceed regardless of fiscal constraints). The compelling reasons for delay as described by our supreme court all involve situations where events beyond the plaintiffs’ control impeded progress. County of Erie, supra; Dorich, supra. Here, the Bankruptcy Trustee, who “stepped into appellant’s shoes,” made a decision to follow a particular course of action which resulted in a delay in the resolution of the litigation. Although the depletion of the bankrupt’s estate was beyond the appellants’ control, the decision not to pursue the case expeditiously was a strategic decision for which the appellants’ must take responsibility. See County of Erie, supra.

Moreover, we note that appellants’ assertion that preserving estate funds was a compelling reason for their delay is vitiated by the fact that trial counsel agreed to prosecute this case based on a forty percent (40%) contingency fee and that Wittekamp, consistent with the bankruptcy court’s order authorizing commencement of this suit, agreed to advance all costs for this suit. Therefore, even if this case had been prosecuted diligently, we fail to see how the assets of the bankrupt’s estate would have been affected. Accordingly, we find that the lower court did not abuse its discretion in concluding that appellants failed to provide a compelling reason for their five year delay in pursuing their claim. County of Erie, 660 A.2d at 241.

Appellants next argue that the lower court erred in determining that appellees were prejudiced by the delay in this case. Specifically, appellants argue that appellees have failed to demonstrate any actual prejudice from the delay. We find that pursuant to our supreme court’s holding in Penn Piping appellees were not required to demonstrate actual prejudice for the entry of a judgment of non pros.

[Our supreme court has held] that in cases involving a delay for a period of two years or more, the delay will be presumed prejudicial for purposes of any proceeding to dismiss for lack of activity on the docket. The court in Penn Piping ... adopt[ed] a per se rule in which delay in excess of two years establishes a prejudice sufficient to satisfy the ... [prejudice] prong of the non pros test. We note, however, that in its actual application of this part of the test, the court took as the measure of the ‘delay’ not the period of inactivity on the case docket, but rather the period of unexplained docket inactivity.

Pennridge Electric v. Souderton School, 419 Pa.Super. 201, 615 A.2d 95, 100 (1992) (citing Penn Piping, supra) (emphasis in original). Moreover, in Penn Piping, our supreme court listed a number of reasons for establishing the two year presumption, thereby not requiring a specific showing of prejudice. For example, the court noted that, after a lengthy lapse in time, defendants may have a difficult time defending themselves, witnesses may be unavailable and defendants may be subjected to needless anxiety. Mudd v. Nosker Lumber, Inc., 443 Pa.Super. 483, 662 A.2d 660, 663 (1995).

Here, appellants have offered no compelling reason that would warrant our reducing by any amount the period of inactivity on the docket. The period of docket inactivity in this case was over five years, and prejudice must be presumed. Thus, the prejudice prong of the non pros test is met. Accordingly, assuming arguendo that appellees failed to demonstrate actual prejudice, it would not be a bar to the entry of a judgment of non pros in this case. Pine Township Water Company v. Felmont Oil, 425 Pa.Super. 473, 625 A.2d 703 (1993) (because there was no docket activity for period exceeding two years, prejudice was presumed and need not be averred or proven by the movant); Pennridge Electric, supra (holding that where the period of docket inactivity was four years and no compelling reason was provided for the inactivity, prejudice was presumed).

However, appellants argue that pursuant to this Court’s rather recent holding in Mudd v. Nosker Lumber, Inc., 443 Pa.Super. 483, 662 A.2d 660 (1995), the presumption of prejudice arising from the delay in pursuit of this case was rebutted by other circumstances. Specifically, appellants argue that appellees should not have been granted non pros because they contributed to the delay in this case. Appellants argue that appellees delayed this case when they removed it to federal court. Appellants also argue that appellees came before the court with unclean hands because they misrepresented the status of the retirees’ medical benefits at the time of the transaction in 1983. We find appellants’ arguments to be meritless.

Unlike in Mudd, the record reveals that appellees’ conduct did not contribute to appellants’ five year delay from the serving of the summons to the filing of the complaint. Appellants’ argument that appellees contributed to the delay in this case by removing it to federal court overlooks the fact that the delay complained of happened prior to the removal of the case to federal court. Accordingly, this removal did not contribute to the five year docket inactivity from the time the summons was served and the complaint was filed.

As for appellants’ contention that appellees came before the court with unclean hands, we disagree. The record indicates that there is no wrongdoing on behalf of appellees in delaying this suit. Appellants’ argument that appellees came before the court with unclean hands is based on the underlying claim in this action, that is, that during Mack-Hemp’s acquisition of the steel manufacturing division from appellees in 1983, appellees acted in a “habitual, outrageous, inequitable” manner. This goes to the merits of the underlying claim and will not support a finding of unclean hands in regard to the delay in this case. Accordingly, appellants have failed to rebut the presumption of prejudice.

Appellants’ next contention is that appellees waived their right to assert non pros. Specifically, appellants argue that appellees waived their right to non pros by removing the case to federal court, by filing an answer addressing the merits of the case and by waiting too long to file a motion for non pros. Although appellant is correct in asserting that a party seeking non pros may waive the right thereto if their conduct indicates a willingness to try the case on its merits, we find that no such conduct occurred here. Dorich, supra.

Appellants first allege that appellees waived them right to non pros by removing the action to federal court. The record reveals that appellees removed the case to federal court because they sought to have the action dismissed by the same court before which the Wittekamp case was litigated. Cognizant of the fact that the federal court was already familiar with the parties and the issues in this proceeding, appellees believed that the federal court would dismiss the suit in a more timely manner than a state court which was not familiar with the parties and issues at hand. We find that this action cannot be construed as a willingness to try the case on its merits. Moreover, it should be noted that after the action was removed to federal court, in every substantive motion and pleading filed thereafter in federal court, appellees asserted that the action should be dismissed because of the five-year delay. We find that appellees’ removal of the action to federal court pertained to their desire to have the case dismissed for improper delay and not a desire to dispense with the case on the merits.

Nor are we persuaded that appellees’ filing of an answer in this case was an indication of a willingness to try the case on its merits. Appellees’ filing of an answer, as they were required to do under the Pennsylvania Rules of Civil Procedure, cannot be interpreted as steps in preparation of trial on the merits. See Dorich, supra (defendant’s act of responding to plaintiffs discovery request, as he was required to do under Pennsylvania Rules of Civil Procedure, was not inconsistent with his request for a non pros); Blackburn v. Sharlock, 433 Pa.Super. 581, 641 A.2d 612 (1994), alloc. denied, 539 Pa. 673, 652 A.2d 1319 (1994) (filing of answer by defendant was not a willingness to try the case on its merits); Gates v. Servicemaster Com. Service, 428 Pa.Super. 568, 631 A.2d 677 (1993) (defendant’s act of filing answer and new matter did not waive right to non pros). The record indicates that every substantive action taken by appellees following the service of the complaint was predicated on the defense that appellants were barred from recovery because of the five year delay. Therefore, the parties knew that dismissal based on the five year delay was being actively sought. However, appellants assert that although appellees had indicated that they wanted dismissal based on the five year delay, they waited too long to request a judgment of non pros. We disagree.

The record reveals that in appellees’ initial answer, which was filed in federal court on December 27, 1993, they raised the affirmative defense of laches, alleging that appellants’ claim was barred because of the five year delay. Appellees also filed in the federal court a motion to dismiss, again alleging that appellants’ claim was barred because of the five year delay. After the case was remanded to the Court of Common Pleas of Allegheny County on August 31, 1994, appellees filed an amended answer and new matter on October 3, 1994, thereby raising the defense of laches because of appellants’ five year delay in asserting their claims. On the same date, appellees filed a motion for judgment on the pleadings which sought dismissal on various grounds, including laches because of the five year delay. On February 16, 1995, the lower court denied appellees’ motion for judgment on the pleadings, and indicated that a request for dismissal for docket inactivity needed to be raised by a petition for the entry of a judgment of non pros. Eight days later, appellees filed a petition for the entry of a judgment of non pros, which was granted by the lower court.

While appellees did not immediately file a petition for non pros, it is clear that they consistently sought dismissal because of the five year delay in appellants’ pursuit of their claim. This case is similar to Dorich v. DiBacco, 440 Pa.Super. 581, 656 A.2d 522 (1995), where, on June 24, 1992, the defendant filed a motion for summary judgment for failure to file an expert’s report following docket inactivity for approximately three years. After the plaintiff filed a preliminary expert’s report, defendant filed another motion for summary judgment on November 24, 1992. After additional docket activity, on March 12, 1993, the defendant filed a motion for non pros based on the plaintiffs failure to proceed.

On appeal, in Dorich, we held that although defendant had not immediately filed a petition for a judgment of non pros, he had not waived his claim to non pros because the parties knew that dismissal was being actively sought. Such is the case here. We also note that appellees’ requests for dismissal based on the five year delay are consistent with their petition for judgment of non pros based on docket inactivity. Therefore, we cannot find that the lower court abused its discretion in concluding that appellees had not waived their right to seek a judgment of non pros.

Appellants’ next contention is that the “law of the case doctrine” applies in this case to the question of whether they expended substantial expense in preparation of this case such that it was inequitable for a judgment of non pros to be entered in favor of appellees. ' Specifically, appellants allege that the lower court violated this doctrine by reopening this question in its opinion dated August 30, 1995. We disagree.

The “law of the case doctrine” “refers to a family of rules which embody the concept that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in the earlier phases of the matter.” Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1328 (1995). Here, the record reveals that in the lower court’s opinion dated May 9, 1995, the court provided appellants with an opportunity to prove that they had devoted significant resources in preparing this case for trial such that dismissal on the grounds of non pros would be inequitable. In the lower court’s opinion dated August 30, 1995, the court found that appellants had not expended substantial expenses in preparation of this case for trial, and, therefore, determined that it would not be inequitable to enter non pros in favor of appellees. Because the lower court’s opinion dated May 9, 1995, expressly left open the question concerning the extent of appellants’ trial preparation, the lower court’s resolution of this question in its opinion dated August 30, 1995, did not violate the “law of the case doctrine.”

Appellants next assertion is that they devoted significant resources in preparing this case for trial, and, therefore, it was inequitable for the lower court to grant a judgment of non pros in favor of appellees.

As discussed previously, in issuing a rale to show cause as to why non pros should not be entered, Judge Wettick gave appellants an opportunity to prove that they had devoted significant resources in preparing this case for trial such that dismissal on the grounds of non pros would be inequitable. After reviewing the discovery devoted to this issue, Judge Wettick concluded that appellants had not expended substantial resources in preparing this case for trial. In particular, in the lower court’s order dated August 30, 1995, Judge Wettick stated the following:

For a case involving claims of millions of dollars, there have been minimal resources expended in the preparation of the case following the filing of the complaint. There has been no additional discovery. There has been some preliminary work by Mr. Wittekamp, who would apparently be a damage witness. Plaintiffs’ attorneys have been involved in reviewing prior proceedings, gaining information regarding the preliminary work of Mr. Wittekamp and providing direction to him. This has been the type of preparation that would be anticipated in the early stages of litigation in which defendants have filed pleadings raising their defenses together with a motion for judgment based on these defenses. It is plaintiffs’ position that most of the preparation for the case occurred in the prior litigation.

Lower Court Opinion 8/30/1995 pp. 11-12. The essence of appellants’ argument is that these findings of fact are not supported by the record and are clearly erroneous. See In re Park Drive Manor, 380 Pa. 134, 110 A.2d 392 (1955) (holding that the lower court is the fact-finding body and that its findings of fact will not be set aside on appellate review unless they are clearly erroneous). We find that the lower court’s findings of fact are not clearly erroneous, and that the lower court did not abuse its discretion in determining that appellants had not expended substantial expense in preparation of this case such that it would be inequitable for a judgment of non pros to be entered in favor of appellees.

Appellants’ final contention is that the lower court’s application of Penn Piping to this case was unconstitutional. Specifically, appellants argue that the lower court was not permitted to apply the holdings of Penn Piping to this case in light of the fact that this case was pending at the time the Penn Piping decision was made. Appellants also argue that the lower court erred in its actual application of the holdings in Penn Piping to this case. We find appellants’ contentions to be meritless.

The question of whether a state court decision announcing a new rule is to be applied retroactively or prospectively is squarely within the province of the state courts. The Federal Constitution neither requires nor prohibits retroactive or prospective application of a new decision. Likewise the Pennsylvania Constitution neither mandates nor forbids either application____ The general rule followed in Pennsylvania is that we apply the law in effect at the time of the appellate decision. This principle applies with equal force to both civil and criminal proceedings---- Retrospective application is a matter of judicial discretion which must be exercised on a case by case basis.

Blackwell v. Com. State Ethics Com’n, 527 Pa. 172, 589 A.2d 1094, 1099 (1991) (citations omitted).

In Blackburn v. Sharlock, 433 Pa.Super. 581, 641 A.2d 612 (1994), alloc. denied, 539 Pa. 673, 652 A.2d 1319 (1994), we specifically held that our supreme court’s holding in Penn Piping applied to the case in which it was announced and that it was not limited to prospective application. We further held in Blackburn that the lower court was correct in applying Penn Piping to the case at issue (Blackburn) which was pending when Penn Piping was decided. Accordingly, we find that it was not unconstitutional for the lower court to apply Penn Piping to this case which was also pending at the time Penn Piping was decided by our supreme court.

For all of the foregoing reasons, the lower court’s judgment denying appellants’ petition to open the judgment of non pros entered in favor of appellees is affirmed.

Affirmed.

      . After Mr. Ravick’s death in 1993, Carlota Bohm was appointed successor bankruptcy trustee.

      . It should be noted that in addition to being sued by Mack-Hemp, appellees were also sued personally by John Wittekamp, the sole shareholder and president of Mack-Hemp, in a separate action based on the same claims as those in this case. In July 1992, following extensive discovery, the Wittekamp action was tried for eleven days before a jury. This action resulted in a verdict in favor of appellees, which was later affirmed on appeal at Wittekamp v. Gulf & Western, Inc., 991 F.2d 1137 (3rd Cir.), cert. denied, 510 U.S. 917, 114 S.Ct. 309, 126 L.Ed.2d 256 (1993).

      . During the time period of November 29, 1993, and December 17, 1993, appellees did not initiate any discovery.

      . We note that, although they were not required to do so, appellees have demonstrated that they were actually prejudiced by appellants' five year period of docket inactivity. Appellees have demonstrated that because of the lengthy delay witnesses’ memories have faded and many witnesses would be unavailable if a trial were held. This constitutes actual prejudice. Shrum v. Pennsylvania Electric Company, 440 Pa. 383, 269 A.2d 502 (1970) (entry of judgment of non pros upheld where defendants prejudiced by delay resulting in unavailability of witnesses); American Bank & Trust Company v. Ritter, 274 Pa.Super. 285, 418 A.2d 408 (1980) (entry of judgment of non pros upheld on ground that memories of all available witnesses must necessarily be dimmed and perhaps extinct).

      . We note with disapproval that appellants have failed to cite any authority supporting this argument. Commonwealth v. Long, 367 Pa.Super. 190, 532 A.2d 853 (1987), appeal denied, 518 Pa. 617, 541 A.2d 744 (1988).

      . In light of our previous discussion concerning the lower court’s application of Penn Piping to this case, we need not address appellants’ contention that the lower court erred in its actual application of the holdings in Penn Piping to this case.


text:
    679 A.2d 1284
    COMMONWEALTH of Pennsylvania, Appellee, v. William Ricky BOYD, Appellant.
    Superior Court of Pennsylvania.
    Argued May 1, 1996.
    Filed June 17, 1996.
    Reargument Denied Aug. 22, 1996.

      Thomas R. Ceraso, Greensburg, for appellant.
    Scott A. Bradley, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before POPOVICH, EAKIN and HESTER, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County following appellant’s conviction on one count of criminal conspiracy, two counts of violating the Uniform Firearms Act and four counts of aggravated assault. Herein, appellant alleges the following: 1) The trial court erred in denying his motion to dismiss for violation of the Interstate Agreement On Detainers (IAD); 2) The trial court erred in admitting evidence of other crimes because it was so expansive and prejudicial as to invalidate a fair proceeding; and 3) The trial court erred in sentencing him as it relates to his financial ability to pay the fine imposed. We affirm.

The relevant history of this case is as follows: On March 20, 1992, appellant was sentenced in the state of New Jersey to a prison term of five years. On June 8, 1992, the District Attorney of Allegheny County, Pennsylvania requested that arrest warrants for appellant be lodged as a detainer against him. These warrants charged appellant with violating the Uniform Firearms Act and with possession of a controlled substance. Thereafter, on July 8, 1992, the Allegheny County District Attorney’s Office received appellant’s written request for a final disposition of the charges against him, thereby triggering the provisions of the IAD. On July 28, 1992, appellant was transported to Allegheny County to face the charges against him. Ultimately, these charges were nolle prosed. The firearms charge against appellant was the subject of a subsequent federal prosecution.

While appellant was still in Pennsylvania, on December 28, 1992, he was charged with the offenses at issue in this case, namely, one count of criminal conspiracy, four counts of aggravated assault and one count of violating the Uniforms Firearms Act. These charges were unrelated to the original charges brought against appellant and stemmed from incidents occurring on January 11, 1991, and January 22, 1991, whereby appellant and his co-conspirator shot and injured several men and a child.

Appellant moved to dismiss these new charges, alleging that the IAD was violated. The trial court denied this motion. Following a trial by jury commencing on April 13, 1994, appellant was convicted of all charges. This appeal followed judgment of sentence.

Appellant’s first allegation is that the trial court erred in denying his motion to dismiss because the Commonwealth failed to bring him to trial on the new counts filed after he was transported to Pennsylvania, within 180 days as was required by Article III of the IAD. We disagree with appellant’s argument and find that the 180 day time limit of Article III did not apply to the new counts on which appellant was convicted.

Rights under Article III come into being only when “there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner----” 42 Pa. C.S.A. § 9101, Art. 111(a). Thus, even an outstanding indictment in another state generates no Article III rights in and of itself; the key is the lodging of a detainer based on that untried indictment. United States v. Mauro, 436 U.S. 340, 98 S. Ct. 1834, 56 L.Ed.2d 329 (1978). Moreover, Article 111(d) provides, in pertinent part, that “[a]ny request for final disposition made by a prisoner ... shall operate as a request for final disposition of all untried indictments, informations, or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed.” 42 Pa.C.S.A. § 9101, Art. 111(d) (emphasis added).

In conformity with these provisions, Article V(c) provides that “in the event that an action on the indictment, information, or complaint on the basis of which the detainer has been lodged is not brought to trial within the [180 day] period provided in Article III,” that indictment, information, or complaint must be dismissed with prejudice. 42 Pa.C.S.A. § 9101, Art. V(c).

A careful examination of the foregoing provisions reveals that the focus is on the problem of detainers. By their terms, they deal only with indictments, informations, or complaints on the basis of which detainers have been filed. Accordingly, the time provision of Article III applies only to indictments, informations, or complaints on the basis of which detainers have been filed.

Here, there is no dispute that the detainer lodged in Pennsylvania was based on charges which were separate and apart from any new charge on which appellant was convicted. At the time the detainer was lodged, the only “untried indictment, information, or complaint” upon which the detainer could have been based was the complaint on charges unrelated to those at issue here. Accordingly, we find that the 180 day time limit of Article III was inapplicable to the new charges forming the basis of his conviction. Therefore, the fact that appellant was tried on the new charges more than 180 days after the District Attorney’s office received his written demand for final disposition of the charges which were the basis of the detainer does not warrant dismissal under Article III.

Appellant’s next allegation is that the trial court erred in denying his motion to dismiss for violation of the IAD because the Pennsylvania authorities violated Article V(d) when they tried him on the new charges which arose out of the January 1991 shootings after his return to Pennsylvania. While we agree with appellant’s allegation, we find that the violation was harmless error.

Article V(a) provides, in pertinent part, as follows:

In response to a request made under Article III or Article IV hereof, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information, or complaint is pending against such person in order that speedy and efficient prosecution may be had.

42 Pa.C.SA. § 9101, Art. V(a).

Article V further provides that “[t]he temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations, or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction.” 42 Pa.C.S.A. § 9101, Art. V(d) (emphasis added). In addition, Article V provides that “[a]t the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending State.” 42 Pa.C.S.A. § 9101, Art. V(e).

In Cooney v. Fulcomer, 886 F.2d 41 (3rd Cir.1989), the Third Circuit of the United States Court of Appeals held that Pennsylvania authorities violated the IAD when they tried the appellant on robbery charges filed after his arrival in Pennsylvania and which were not the basis of the detainer. The court further held that Article V(d) “limits prosecution after a transfer pursuant to the IAD, to indictments, which existed at the time of transfer and which formed the basis for the detainer. . . .” Cooney, 886 F.2d at 43. Nevertheless, the Commonwealth argues that Cooney is distinguishable from this case because in Cooney the prisoner was transported to Pennsylvania pursuant to Article IV whereby the prosecutor filed the written notice of the custody request to the sending state. Here, the Commonwealth argues, appellant filed the written notice demanding final disposition of the charges against him pursuant to Article III, and, accordingly, Cooney is inapplicable. We disagree.

The express language of Article V(a) reveals that Article V(d), which limits prosecution after a transfer to indictments which formed the basis of the detainer, is applicable to temporary custody of the prisoner pursuant to Article IV and Article III. 42 Pa.C.SA. § 9101, Art. V(a). Accordingly, the reasoning in Cooney is applicable in this case.

Here, Pennsylvania had temporary custody of appellant pursuant to Article III. As in Cooney, appellant was never tried on the original charges which formed the basis of the detainer. Moreover, the Commonwealth concedes that the original charges were unrelated to the new charges upon which appellant was convicted. “Thus, the Commonwealth did exactly what is expressly prohibited by Article V(d): It tried appellant on outstanding charges which were unrelated to the charges which formed the basis of the detainer.” Cooney, 886 F.2d at 43. The government was obligated to return appellant to New Jersey once it had dismissed the charges upon which the detainer was based. The question now is whether the Commonwealth’s failure to return appellant to New Jersey warrants reversal.

If the Commonwealth violates the 180 day time limit of Article III, or if the Commonwealth violates the 120 day time limit of Article IV, the IAD expressly provides for dismissal of the charges with prejudice. However, Article V(d) does not contain a specific dismissal remedy. Therefore, we conclude that violation of Article V(d) is a cause for reversal only if it can be shown to have caused actual prejudice to appellant. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

We are unable to perceive that appellant has suffered any prejudice through his conviction on the new counts without having been returned to New Jersey. It is undisputed that had the Commonwealth delivered appellant back to New Jersey after nolle prossing the charges on which the detainer was based, it could have forthwith sought his return to Pennsylvania under a new detainer and a concomitant request under Article IV of the IAD. In addition, appellant has not alleged that his constitutional right to a speedy trial was violated or that he was denied a fair trial. See Cooney, supra. In fact, appellant acknowledges that he was not prejudiced by the Commonwealth’s failure to return him to New Jersey after the original charges were nolle prossed. However, he argues that he should be granted the benefit of the Article IV time limit because he was held in the receiving state in violation of Article V. Essentially, he argues that a prisoner who is held in a receiving state in violation of Article V retains his speedy trial rights as if he were in the state involuntarily under an Article IV request. After a careful examination of the LAD, we find no support for appellant’s contention. We think that this presses the concept of Article IV rights too far in the face of a statutory scheme which makes no provision for such a sanction. Accordingly, the time limits of Pennsylvania Rule of Criminal Procedure 1100 governed in this case.

Appellant’s next allegation is that the trial court erred in admitting evidence of other crimes because it was so expansive and prejudicial as to invalidate a fair proceeding. Specifically, appellant argues that the lower court erred in admitting evidence relating to 1) “owe sheets,” which were lists maintained by appellant and Bell of individuals who owed appellant money for drugs, 2) notations of the beeper codes assigned to various individuals in appellant’s “gang,” 3) gunshots which were fired at George Hilliard’s apartment on December 30, 1990, and 4) photos of various individuals, including photos of appellant and other men standing together at the State Correctional Institute at Pittsburgh. We find that this issue has been waived on appeal.

In order to preserve for appellate review any claim of error regarding the admission of evidence, a party must specifically object to the admission of such evidence at trial. See Commonwealth v. Garcia, 443 Pa.Super. 414, 661 A.2d 1388 (1995). Failure to do so results in a waiver of that claim of error in the evidence’s admission. Id. The appellant is further “required to set forth in both the statement of the case and in the argument of the appellate brief reference to the place in the record where the issue presented for decision on appeal has been raised or preserved below.” Painter v. Pennsylvania Electric Company, 368 Pa.Super. 334, 534 A.2d 110, 111 (1987).

Here, appellant has failed to set forth the place in the record where the evidence was introduced, where any alleged objections were made, or where any alleged curative instructions were given by the court. As this was an extremely lengthy and complicated trial consisting of ten days of testimony and argument, during which forty-four witnesses testified producing a 1,300 page trial record, appellant’s failure to comply with the rules impedes our ability to review the issue, and, accordingly, we will not address its merits on appeal.

Appellant’s final contention is that the trial court erred in sentencing him as it relates to his financial ability to pay the $100,000 fine which was imposed. Specifically, appellant argues that the lower court erred in determining that he is or will be able to pay the fine. We find that appellant also has waived this issue on appeal.

The lower court may, in its discretion, consider a fine as an additional or an exclusive sanction. The court may impose a fine as an additional penalty when the defendant has derived a pecuniary gain from the crime or when a fine would be particularly appropriate as a deterrent. ‘In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.’ However, ‘[t]he court shall not sentence a defendant to pay a fine unless it appears of recod'd that: (1) the defendant is or will be able to pay the fine____’

Commonwealth v. Mead, 300 Pa.Super. 510, 446 A.2d 971, 973 (1982) (citations omitted) (emphasis in original).

Here, the sentencing transcript clearly reveals that prior to imposing the $100,000 fine, the lower court inquired as to appellant’s ability to pay the fine imposed. However, we are unable to determine whether the lower court had sufficient information available to conclude that appellant had or will have the financial ability to pay the fine. From the sentencing transcript and the lower court’s opinion, it is clear that the court primarily relied upon the presentence report in affixing appellant’s fine at $100,000. The presentence report was not made a part of the official record. It is black letter law in this jurisdiction that an appellate court cannot consider anything which is not a part of the record in the case. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). It is also well-settled in this jurisdiction that it is appellant’s responsibility to supply this Court with a complete record for purposes of review. Id. (emphasis added). “A failure by appellant to insure that the original record certified for appeal contains sufficient information to conduct a proper review constitutes waiver of the issue sought to be examined.” Smith v. Smith, 431 Pa.Super. 588, 637 A.2d 622, 623 (1993).

Here, the aforementioned rules translate into our inability to determine whether the lower court abused its discretion in determining that appellant had or will have the financial ability to pay a $100,000 fine. In his brief, appellant specifically claims that “[t]he presentence report made no findings that would have led the court to believe that the defendant had the capacity to pay any fine----” Appellant’s Brief p. 30. Without the presentence report, we are unable to review this claim, and, accordingly, we conclude that appellant has waived this issue on appeal.

For all of the foregoing reasons, we affirm the lower court’s judgment of sentence.

Affirmed.

      . 18 Pa.C.S. § 903.

      . 18Pa.C.S. § 6101.

      . 18 Pa.C.S. § 2702.

      . 42 Pa.C.S.A. § 9101, ef seq.

      . Appellant argues that Article Ill’s 180 day time limit began to run on June 25, 1992, when he wrote his request for final disposition. Appellant is mistaken. It is well-settled that under Article III the 180 day period for bringing a prisoner to trial does not begin until the prisoner’s request for a disposition of the detainer is actually received by the District Attorney’s office which lodged the detainer. Commonwealth v. Woods, 444 Pa.Super. 321, 663 A.2d 803 (1995). Here, the District Attorney’s office received appellant’s written request for disposition on July 8, 1992. Accordingly, the Commonwealth had until January 3, 1993 to bring him to trial on the charges which formed the basis of the detainer.

      . Appellant does not dispute that those charges which formed the basis of the original detainer were disposed of effectively within the 180 day period required by 42 Pa.C.S.A. § 9101, Art. III.

      . We note that since the IAD is subject to federal construction, we are bound by the Third Circuit’s interpretation of the IAD in Cooney. Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).

      . In Cooney, the Third Circuit recognized the relevance of an investigation of the prejudice suffered by an appellant as a result of the failure to comply with Article V. The Third Circuit applied the standard used in habeas corpus petitions and found no "manifest injustice" to have been suffered by appellant. Since we are dealing with a direct appeal in this case, we must apply the Kotteakos test.

      . We note that appellant has expressly argued that Rule 1100 was inapplicable to this case, and, therefore, failed to develop any argument concerning its applicability. Accordingly, we find that his conviction was not hampered by Rule 1100’s application.


author: DEL SOLE, Judge.

text:
    679 A.2d 1291
    COMMONWEALTH of Pennsylvania v. Scott D. SCHICKLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 5, 1996.
    Filed June 26, 1996.

      Lawrence J. Hracho, Reading, for appellant.
    Iva C. Dougherty, Assistant District Attorney, Reading, for appellee.
    Before DEL SOLE, JOHNSON and CERCONE, JJ.
   DEL SOLE, Judge.

After a bench trial, Appellant, Scott Schickler, was convicted of Possession of a Controlled Substance (Marijuana), Possession of a Controlled Substance (Cocaine), Possession With Intent to Deliver and/or Manufacture a Controlled Substance (Marijuana) and Possession of Drug Paraphernalia. On appeal, Appellant argues that the evidence seized from his apartment should have been suppressed because the search warrant was not supported by probable cause. We affirm.

The record shows that on October 15, 1993, Detective Andrea Kohut, acting on an anonymous tip that the odor of marijuana was emanating from Appellant’s apartment, went to the apartment building where Appellant resided and confirmed through her own observation that a strong smell of marijuana was present at the doorway of Appellant’s apartment. Upon her return to the police station, Detective Kohut was informed by a Sergeant Weniger that Appellant lived in the apartment in question and described Appellant’s car which Detective Kohut confirmed was in the apartment building’s parking lot when she was there. Additionally, Sergeant Weniger told Detective Kohut that several months earlier, in March 1993, two confidential informants told the police that Matthew “Tony” Delp would be going to Appellant’s apartment to purchase drugs. The detectives followed Delp to the apartment and when he left the building, they stopped his car and searched him. A small amount of marijuana was found in the car and Delp told the detectives that he had purchased it from Appellant.

After hearing this information, Detective Kohut, Officer Erik Gruzig and his canine, returned to the apartment building three days later for the purpose of conducting a canine search. As they walked through the basement of the building where Appellant’s apartment was located, the canine “alerted” to Appellant’s apartment by scratching on the wall next to the door jam. Based on her own observation, the canine sniff and the additional information provided to her by Sergeant Weniger, Detective Kohut applied for and obtained a search warrant for Appellant’s apartment on October 19, 1993 and executed it that same day.

Appellant argues that the search warrant was not valid because it was based upon stale information, a subjective observation by Detective Kohut and an unreliable canine sniff. We disagree.

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for ... conclud[ing] that probable cause existed, [citation omitted].

Commonwealth v. Weidenmoyer, 518 Pa. 2, 8, 539 A.2d 1291, 1294 (1988) (quoting Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985)).

Appellant places great emphasis on the magistrate’s consideration of the information surrounding the “Tony Delp incident”, labeling it “hearsay upon hearsay”, and he challenges the reliability of the canine sniff on the grounds that the Commonwealth failed to show that the dog had proven to be reliable in the past.

Although probable cause cannot as a general rule be founded upon stale or temporarily remote information, Commonwealth v. Stamps, [493 Pa. 530, 427 A.2d 141 (1981) ] [additional citations omitted], corroborative information need not be current for it to be properly considered by the magistrate so long as it relates to prior conduct sufficiently similar to the acts in question. Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513 (1974).

Commonwealth v. Weidenmoyer, 518 Pa. 2, 10, 539 A.2d 1291, 1295 (1988).

Furthermore, “an affidavit which contains hearsay upon hearsay need not be categorically rejected. Rather ‘double hearsay’ must be evaluated in conjunction with the other information on the affidavit to determine whether the information is reliable.” Commonwealth v. Klinedinst, 403 Pa.Super. 605, 612, 589 A.2d 1119, 1123 (1991) allocatur denied, 529 Pa. 618, 600 A.2d 534 citing Commonwealth v. Casuccio, 308 Pa.Super. 450, 465, 454 A.2d 621, 629 (1982) [additional citations omitted].

While in the instant case, the information obtained seven months prior to the current offense, standing alone would have been inadequate to support a search warrant, there remains the important additional factors of the canine sniff and Detective Kohut’s personal observations. Trained and experienced in drug investigations, Detective Kohut testified that she smelled a strong odor of marijuana by Appellant’s apartment door. This corroborated the tip provided to her by the anonymous caller. Therefore, we hold that the detective’s observation, combined with the other information contained, in the affidavit of probable cause, supports the magistrate’s issuance of the search warrant and, thus we find that the trial court did not err in failing to suppress the evidence seized as a result of the warrant’s execution. It is apparent that the magistrate had “a substantial basis for concluding that probable cause existed”. Commonwealth v. Weidenmoyer, supra.

While Appellant’s remaining argument raises a general claim that the search was invalid because the police did not have articulable reasonable grounds for believing that drugs may have been present in Appellant’s apartment, the primary focus of this argument is that the Commonwealth failed to prove the reliability of its “canine informant”.

In Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987), the appellant argued that the affidavit in support of the search warrant was deficient because it failed to provide information regarding the training and experience of the canine used to conduct a sniff search of a storage facility where illegal narcotics were discovered. Our supreme court found that the affidavit “contain[ed] enough information to inform the magistrate that the animal used was not an ordinary police dog who might ‘alert’ to anything, but instead was trained to indicate the presence of narcotics.” Id. at 471, 530 A.2d at 82. Finding that to require more would place “unreasonable burdens on the police”, the court stated, “[u]nless it is established, as it has not been on this record, that trained narcotics detection dogs are less than 51% accurate, there is no need for a more detailed account of a narcotics detection dog’s pedigree.” Id.

In the present case, the affidavit submitted to the magistrate stated that the canine was “certified by the North American Police Work Dog Force” and “was qualified for narcotics searches in March, 1992”. The affidavit also notes that “[m]arijuana is one of the narcotics that [the canine] is certified in detecting”. Therefore, we reject Appellant’s argument that the Commonwealth was required to submit additional information about the canine’s reliability.

Accordingly, having found no merit to Appellant’s claims, we affirm his judgment of sentence.

Judgment of sentence affirmed.


author: JOHNSON, Judge.

text:
    679 A.2d 1293
    In re the ESTATE OF Luba HABAZIN Appeal of Frank HABAZIN and John Habazin
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1995.
    Filed July 9, 1996.

      Samuel P. Kamin, Pittsburgh, for appellant.
    Joseph M. Budicak, Public Defender, New Brighton, for Komar and Bires, participating parties.
    Robert W. Lewis, Jr., Ambridge, for Barancho, participating party.
    Before CAVANAUGH, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge.

This appeal by Frank Habazin and John Habazin, Jr. (heirs/contestants) arises from an order approving the private sale of real estate included in a decedent’s estate. Because we conclude that the order is interlocutory and has not been certified in accordance with Pa.R.A.P. 342, we quash the appeal.

In 1989, Luba Habazin executed a will naming all five of her children as co-executors. Following her death in 1992, a dispute arose concerning a parcel of real property included in her estate. The property in dispute is a farm containing approximately seventy-five acres upon which are erected a single-family dwelling and a tenant’s house. Under the terms of the will, one of the five children, Frances Barancho, was bequeathed the contents of the home as well as the right of a first option to purchase the home.

Three of the children/co-executors, including the legatee, Frances Barancho, petitioned the court to approve the sale of the property to Barancho for $137,000. After several hearings, the Honorable Robert C. Reed, P.J., on November 7, 1994, issued an order approving the sale of the property at $144,000 pursuant to 20 Pa.C.S. § 3353, which provides for the sale of property by a personal representative “when it is advisable that a sale have the effect of a judicial sale.” The heirs/contestants filed a pleading, denominated Respondent’s Motion for Post Trial Relief, asking the court to vacate its order approving the sale and order a new hearing or, in the alternative, to alter and modify its memorandum and order in form and in substance in response to the matters set forth in the Respondents’ Motion. By order dated April 12, 1995, Judge Reed denied the motion and the heirs/contestants appealed from the order denying “post-trial relief.” This appeal from the Orphans’ Court Division of the Court of Common Pleas followed. At the time the appeal was taken, no sale had taken place.

An order is not a final order under Pa.R.A.P. 341 unless it disposes of all claims or of all parties. In a decedent’s estate, the confirmation of the final account of the personal representative represents the final order, subject to exceptions being filed and disposed of by the court. See 20 Pa.C.S. § 3514. Our supreme court has held that an appeal from an order directing the administrator of a decedent’s estate to apply for a court order to sell real estate belonging to the decedent is interlocutory and must be quashed. In re Maslowski, 261 Pa. 484, 104 A. 675 (1918). The court stated the following: “If a sale should be made in pursuance of the said order or decree, an appeal will lie from the final confirmation of it, and the errors now ... prematurely ... complained of will then be properly here for correction.” Id. Execution of the sale and the final confirmation thereof are thus essential prerequisites for appeal. Compare In re Manley, 305 Pa.Super. 332, 451 A.2d 557 (1982) (finding order granting intervention to permit submission of bids on sale of real estate in Orphans’ Court proceeding not appealable) with In re Harper’s Estate, 418 Pa. 196, 210 A.2d 288 (1965)(permitting appeal where sale of decedent’s interest in corporation had occurred and had been confirmed). Here, the order is interlocutory because (1) a sale has neither taken place nor been confirmed, and (2) the estate from which the sale will be carried out remains under administration.

Pa.R.A.P. 342 provides for the appeal of an interlocutory order of distribution in a decedent’s estate as follows:

An appeal may be taken as of right from any order of distribution entered in an orphan’s court division which is not final within the meaning of Rule 341 (final orders generally) if the lower court shall certify that the order is sufficiently definite to determine the substantial issues between the parties. [Emphasis added].

On this appeal, we lack both (a) an order of distribution and (b) a trial court certification. The effect of delaying review of the order fixing the appraised value will not result in the loss of any right in any of the parties because the real estate is not specifically devised under the will to any person, and the proceeds of sale will remain under the review and control of the Orphans’ Court until confirmation of the final account. Thus, we can only conclude that the within appeal is interlocutory, taken without right, and must be quashed.

Appeal QUASHED.


author: HESTER, Judge.

text:
    679 A.2d 1295
    COMMONWEALTH of Pennsylvania v. Bruce Donald GODSCHALK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1996.
    Filed July 10, 1996.
    Timothy Zearfoss, Lansdown, for appellant (submitted).

      Mary M. Killinger, Executive Asst. Dist. Atty., Norristown, for Commonwealth, appellee.
    Before CAVANAUGH, SAYLOR and HESTER, JJ.
   HESTER, Judge.

Bruce Donald Godschalk appeals from the June 26, 1995 order denying his petition to obtain DNA testing. We affirm.

In 1987, appellant was convicted of two counts each of rape and burglary. He was sentenced to an aggregate term of imprisonment of ten to twenty years. The rapes occurred in the same apartment complex. The record indicates that on August 16, 1986, at 10:00 p.m., appellant exposed himself to another woman in the same complex. This woman identified appellant as her assailant in a photographic array.

The convictions at issue stem from the following events. On July 13, 1986, at 12:45 a.m., appellant entered the townhouse of the first rape victim through a window. The victim was asleep, and appellant entered her bed, placed his hand over mouth, said that he did not want to harm the victim, and told her that he wanted only to have sex. The victim struggled unsuccessfully. Appellant placed the victim on her stomach then inserted his fingers and penis into her vagina.

On September 8, 1986, appellant entered the second victim’s apartment at 2:45 a.m. while she was asleep. He awoke her, placed his hand over her mouth, and instructed her he would hurt her if she screamed. Appellant turned the victim on to her stomach and had vaginal intercourse with her. At the time, the victim was menstruating, and appellant removed her tampon prior to intercourse. He told the victim several times in a soft voice that he needed love. He then exited the apartment. This victim was able to identify appellant from a photographic array.

The convictions rest in part on a confession appellant gave to police. He confessed to raping both of the women and also admitted that he had removed the tampon of the second victim, a detail of this rape which had not been released to the public. Appellant also described the position of the victims during the rapes, another detail which had not been released to the public. Appellant unsuccessfully sought to have the confession suppressed by the trial court, recanted his confession at trial, and was unsuccessful in obtaining suppression of the confession on appeal.

On February 24, 1995, appellant filed a petition to obtain DNA testing. After a hearing conducted on June 23, 1995, the petition was denied. This appeal followed.

On the authority of Commonwealth v. Brison, 421 Pa.Super. 442, 618 A.2d 420 (1992), and Commonwealth v. Reese, 444 Pa.Super. 38, 663 A.2d 206 (1995), appellant contends his petition was denied improperly. We disagree and affirm. Under the decisions in Brison and Reese, a petition for post-conviction DNA testing will be granted where a conviction rests largely on identification evidence and where advanced technology could definitely establish the accused’s innocence.

Herein, appellant’s conviction rests largely on his own confession which contains details of the rapes which were not available to the public. One of the victims did not identify him at all. As appellant has failed to satisfy the first leg of the Brison standard, we affirm the denial of his petition.

Order affirmed.

      . Although not titled as a PCRA petition, it is clear that this petition is in the form of a request for post-conviction relief. Even though the petition is not labeled correctly, we will treat it as a petition for post-conviction relief. Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980) (in petition, defendant requested habeas corpus relief, but petition was not titled as such; petition should be treated as habeas corpus petition); see also Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986) (the substance rather than the form of a motion is controlling in determining procedural issues).