text:
    540 A.2d 289
    A.G. ALLEBACH, INC., Appellant, v. Joseph W. HURLEY and Norfolk Dedham Mutual Fire Insurance Company and Utica Mutual Insurance Co.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1988.
    Filed April 4, 1988.

      Philip D. Weiss, Norristown, for appellant.
    Margaret S. Lurio, Philadelphia, for Utica, appellee.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Montgomery County Court of Common Pleas of March 10, 1987, denying the post-trial motions of A. G. Allebach, Inc. (Allebach), and entering judgment for Utica Mutual Insurance Company (Utica). Because we find that appellant Allebach’s arguments are without merit, we affirm the order of the trial court.

This case arises from an insurance policy sold by Joseph W. Hurley, an insurance agent, to Allebach, a company in the business of selling and repairing heavy vehicles. The policy purported to cover Allebach for losses due to fire. Allebach at that time rented the building that it occupied. A fire damaged the rented building, vehicles that were in the process of undergoing repairs, and Allebach’s own property. Allebach then discovered that its insurance policy did not cover its liability to the owner of the rented building or to the owners of the vehicles undergoing repairs, and that the policy did not cover damage to certain of its own property or business interruption.

On June 3,1974, Allebach notified Hurley by letter that a suit would be brought against him. On July 25th of that year, Hurley applied to Utica for an errors and omissions policy. The policy application contained a question which specifically asked whether or not the applicant knew of any circumstances or allegations which “may result in any claim being made against the agency, the predecessors in business or any present or past partners[.]” If the applicant answered “yes” .to this question, the application required that a statement of complete details be appended to it. Hurley answered this question in the negative on one application, and did not answer it at all on a second. A provision of the policy stated that all questions had to be answered, and that any question left blank would be deemed to have been answered in the negative. Based upon Hurley’s representations, Utica issued a claims-made policy to him which was to run from July 29, 1974, to July 29, 1975.

On September 11, 1974, Allebach filed its first complaint against Hurley claiming that Hurley had failed to provide it with adequate insurance coverage. That complaint was dismissed without prejudice because damages had not yet accrued. A second complaint which included damages was filed and later amended to allege additional damages. On June 23, 1975, Hurley contacted Utica and asked to renew his policy. Despite the fact that two complaints had been filed against him, he again answered the question in the application concerning the existence of claims being made in the negative. The policy was renewed on the basis of his representations.

Notice of the impending law suit was given to Utica by Hurley’s co-defendant on May 24th of 1976. Hurley again attempted to renew his policy in June of 1976, and this time made mention of the claim against him. Utica decided to rescind Hurley’s policy because of the past misrepresentations on his part, and returned with interest all the premiums he had paid since the policy’s inception. Utica notified Hurley that it would neither indemnify nor defend him in the law suit. At that point, Hurley reached a settlement with Allebach, assigning to Allebach whatever rights he had against Utica in return for Allebach’s agreement not to enforce the judgment entered against him.

Allebach then instituted garnishment proceedings against Utica. The issue of whether or not recision of the policy was proper was submitted to the trial court by counsel on an agreed statement of facts. A verdict was entered for Utica. Allebach’s post-trial motions were denied, and it appealed to this court.

Allebach makes four arguments on appeal. Firstly, it claims that the trial court erred in finding that an insurer could rely on the recision of the errors and admissions policy to defeat Allebach’s rights in a garnishment claim. Secondly, Allebach argues that the trial court erred in finding that the claim was not made during the policy period and adequate notice had not been given to the insurer, Utica. Thirdly, Allebach argues that it was error for the trial court to hold that Utica’s claim that Hurley misrepresented material facts when applying for the policy was effective against it. Lastly, Allebach claims that the trial court erred in finding that an agreed verdict was not binding upon Utica.

In examining an appeal from a judgment entered in a non-jury trial, the findings of the trial court are accorded the same weight and effect as the verdict of a jury, and will not be reversed absent an abuse of discretion or a finding that the evidence does not support the verdict. We, as the appellate court are limited to a determination of whether or not the trial court’s findings are supported by competent evidence and whether the trial court erred as a matter of law. Further, the evidence must be viewed in the light most favorable to the verdict winner; all the evidence and inferences favorable to him are taken as true, and all the unfavorable inferences rejected. Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 567-68, 440 A.2d 609, 611 (1982). We find that, viewing the evidence in the light most favorable to the verdict winner, along with the favorable inferences that may be reasonably drawn from that evidence, the evidence supported the trial court’s finding that recision of the policy was proper in this case, as the insured made material misrepresentations in the policy application.

Allebach complains that allowing Utica to employ all the defenses against it in a garnishment action that Utica would have been able to command in an action against it by Hurley places it on the horns of a great dilemma. According to Allebach, garnishment is its only recourse, since it is unable to bring a direct cause of action against the insurer under Pennsylvania case law and 40 P.S. § 117. If it elects a garnishment action, however, it is precluded from recovering in circumstances where Utica is allowed to raise the defense of misrepresentation as it could have done against Hurley. Allebach claims that the law does not permit it to be placed in such a position because the insurer bears the burden of proving a policy defense, and because of an exception to the rule that the judgment creditor stands in the shoes of the judgment debtor.

Allebach argues that the case of Jamison v. Miracle Mile Rambler, Inc., 536 F.2d 560 (3rd Cir.1976), supports its claim that the law will not allow the garnishee to use defenses against it that could be raised against the first creditor where fraud is present. We do not find this argument persuasive. In Jamison, the verdict winner attempted to garnish a claim owed the insured by the insurer after the insurer and the insured had already settled the claim. The argument was made that since the insured had already settled with the insurer, and the court had dismissed the action with prejudice, the insured was bound by res judicata and precluded from relitigating its claim against the insurer, as was the verdict winner, who was, in effect, the assignee. The verdict winner argued that an exception to the rule set out in Folmar v. Shaffer, 232 Pa.Super. 22, 332 A.2d 821 (1974) should apply. Under Pennsylvania law, an assignee’s rights are not extinguished where the assignor has acted fraudulently. Id., 232 Pa.Superior Ct. at 25, 332 A.2d at 823. The Third Circuit Court of Appeals held that the verdict winner had presented uncontradicted evidence that the insured was hopelessly insolvent at the time of the settlement. The court pointed out that in Pennsylvania, a conveyance is fraudulent when an insolvent conveys property for less than fair consideration. According to the court, the settlement of the claim for less than the amount it was worth was analogous to a fraudulent conveyance. Jamison, 536 F.2d at 565.

Allebach attempts to argue that the return of the premiums to Hurley was a fraudulent conveyance similar to that in the Jamison case. Allebach’s argument is specious, and ignores the facts as set out in that case. No similarity exists between the return of premiums by the insurer upon the realization that the insured had misrepresented himself in the application, and the uncontradicted deposition testimony in Jamison that the insured was insolvent and attempted to settle a suit for less than it was worth. The actions in the Jamison case fit into the definition of fraudulent conveyance as set out in that case, the return of premiums here do not. Further, the verdict winner in that case was able to set out evidence tending to show fraud on the part of the insurer and insured. Allebach was unable to allege any such evidence here. The mere recision of a policy which has been issued to the insured upon the basis of material misrepresentations does not rise to the level of fraud.

This court has held that where no policy clause or statutory provision allows suit by a third party against an insurer, the remedy available to the third party is to issue an attachment execution, naming the insurer as the garnishee. See Ferguson v. Manufacturers’ Casualty Insurance Co., 129 Pa.Super. 276, 280, 195 A. 661, 663 (1938). We have found no case, nor does Allebach cite any to us, to support its claim that in such an instance the ordinary laws of garnishment would not apply. Allébach has chosen its theory of recovery, and must abide by the case law governing that theory.

We do not fully understand Allebach’s argument that because the insurer bears the burden of proving its policy defense, Allebach is precludéd from submitting to the laws of garnishment. In any case, although we recognize that where the insurer relies upon an exclusion provision in the policy, or upon the breach of a condition of the policy as its defense, the insurer bears the burden of proving that defense, Bianco v. Concepts “100” Inc., 291 Pa.Super. 458, 465, 436 A.2d 206, 209 (1981), we find that rule has no applicability to the instant case. The insurer here is not attempting to rely upon the policy, but relies upon the fact that there is no policy. Clearly, it is the insurer’s burden to prove misrepresentation here, but that assumes that the insurer/garnishee can utilize its defenses as against its first creditor, in this case, Hurley.

Allebach also argues that the defense of misrepresentation should not have been available to Utica, and that therefore, Utica should not have been permitted to rescind the policy. Allebach argues: (1) that Pennsylvania statute 40 P.S. § 441 bars a defense based on false representation unless the insurer can show that the application attached to the policy was an exact copy, and that that is not the case here; (2) that the elements of misrepresentation were not proven; and (3) that Utica was precluded from rescinding the contract because Allebach was a third party beneficiary of the insurance policy. We find these arguments to be meritless.

Under 40 P.S. § 441, the insurer is precluded from using as evidence the application attached to the policy of an insured unless that application is a true and correct copy of the original:

§ 441. When application, constitution, by-laws and rules are considered part of policy
All insurance policies, issued by stock or mutual insurance companies or associations- doing business in this State, in which the application of the insured, the constitution, by-laws, or other rules of the company form part of the policy or contract between the parties thereto, or have any bearing on said contract, shall contain, or have attached to said policies, correct copies of the application as signed by the applicant, or the constitution, the bylaws, or other rules referred to; and, unless so attached and accompanying the policy, no such application, constitution, or by-laws, or other rules shall be received into evidence in any controversy between the parties to, or interested in, the policy, nor shall such application, constitution, by-laws, or other rules be considered a part of the policy or contract between the parties.

40 P.S. § 441. Pennsylvania courts have interpreted this provision strictly, in accordance with the purpose behind the act. “The Act is intended to protect the policy holder____ It was passed in the interests of fair dealing, and its provisions should be strictly enforced.” Syme v. Bankers National Life Insurance Co., 393 Pa. 600, 609, 144 A.2d 845, 850 (1958) (citations omitted). The Pennsylvania Supreme Court in Syme pointed out that the “evil” aimed at by the legislation was the practice by insurance companies of putting long and intricate questions or statements to be answered or made by the applicant in their applications. These were printed in small type; their relevancy was not immediately apparent to the inexperienced. “ ‘The general intent was to keep these statements before the eyes of the insured, so that he might know his contract, and if it contained errors, have them rectified before it became too late.’ ” Id., 393 Pa. at 607, 144 A.2d at 849 (quoting Lenox v. Greenwich Insurance Co., 165 Pa. 575, 577, 30 A. 940, 941 (1894).

The courts have realized, however, that it is also necessary to use reason when interpreting this provision:

[A] literal interpretation of the Act requiring every word to be accurate and exact will not be adopted and applied, if and when it produces a result that is unreasonable or absurd____ For example, an erroneous insertion or omission of “the” or “an”, or the misspelling of a word, or an erroneous date if such an error is otherwise immaterial, or if there be other trivial errors, such a copy, literally speaking, would not be a correct copy. However, while the Act must be strictly construed in favor of the insured, we believe it must nevertheless be reasonably interpreted.

Ross v. Metropolitan Life Insurance Co., 403 Pa. 135, 142-43, 169 A.2d 74, 78 (1961). In Ross, the supreme court construed the act to reasonably mean that a copy was not a correct copy if it was not dated and signed by the applicant. Id. In Prudential Insurance Co. v. Pagano, 407 Pa. 473, 181 A.2d 319 (1962), the supreme court held that where two Part IPs of an application had been completed, but only one had been attached to the policy, and when that copy was for all practical purposes identical to the other copy, the statute had been satisfied. Id., 407 Pa. at 475, 181 A.2d at 322. In Syme itself, upon which Allebach relies for its argument, we note that the application was discarded because it was unsigned by the applicant. The application requested a policy entirely different from the one accepted by the insured. Syme, 393 Pa. at 612, 144 A.2d at 852.

Consideration of the supreme court’s decisions in this area along with the purpose of the act as described in those decisions, leads us to agree that the act must be applied reasonably. In the instant case, according to Allebach, the fact that two copies of Hurley’s application for insurance existed in the files, one which replied “no” to the question concerning the existence or possibility of any claims against the applicant, and one in which the question was not answered, precluded Utica from basing its defense upon the application. Allebach claims that the copy attached to the policy was not an exact copy, and that Utica is barred by the statute from basing its defense on that copy. We disagree. Where the difference between the actual application and the copy appended to the policy can be considered trivial, and does not tend to mislead the insured, there can be no question that the copy of the application is a correct one as set forth in the statute. The copy need not be exact.

Viewing the evidence in the light most favorable to the verdict winner, the two applications in question here were, for all practical purposes, the same. Although the one application was blank in some places, it is clear that at the top of the application itself that failure to fill the blanks on the form would be construed as a negative response. There is no question that Hurley signed both forms, or that he received the policy that he had requested. We note further that Hurley was an insurance agent, and therefore familiar with application forms and company practices. This is not a case in which the insurance company is attempting to confuse an ignorant insured with a long and complicated policy application. We hold that any dissimilarity in the policy was trivial, and sufficiently compensated for by the language which provided that unanswered questions would be held to have been answered in the negative.

Allebach next argues that even if the application is held to be sufficiently correct to avoid the prohibition of the statute, Utica has failed to carry its burden of proving misrepresentation, and therefore should not have been permitted to rescind the policy. In order for an insurer to carry its burden of proving misrepresentation, it must show that the representation was false, that the subject matter was material to the risk, and that the applicant knew it to be false and made the representation in bad faith. Allstate Insurance Co. v. Stinger, 400 Pa. 533, 537, 163 A.2d 74, 78 (1960); Piccinini v. Teachers Protective Mutual Life Insurance Co., 316 Pa.Super. 519, 529, 463 A.2d 1017, 1023 (1983).

Allebach argues that if Hurley had knowledge of any claim at the time that the application was made, it was from Allebach’s letter of June 3, 1974 informing him that a claim might be made in the future. Because the complaint which ultimately issued was dismissed, Allebach argues that that letter is not material to the instant case, and that therefore Utica has failed to carry its burden of proving that the subject matter was material to the risk. Allebach completely misunderstands the standard involved here. The argument that it has made is not even remotely connected with the concept of materiality of the risk. Information is said to be material if knowledge or ignorance of it would naturally influence the judgment of the insurer in issuing the policy, in estimating the degree and character of the risk, or in fixing the premium rate. Baldwin v. Prudential Insurance Co., 215 Pa.Super. 434, 437, 258 A.2d 660, 662 (1969). There is no question from the record that the representations made by Hurley concerning the existence of claims against him would naturally influence the judgment of an insurer in issuing a claims made policy. Joseph Thackaberry, an underwriter for Utica, testified that he relied upon DiBonaventura’s representations in deciding whether or not to issue a claims-made policy, because a claim outstanding against the potential insured could be reported against Utica during the policy period. The possibility that a claim could be made within the policy period would have at the least placed restrictions on Hurley’s policy, or increased his premium. The trial court’s finding that this information was material to the risk is supported by competent evidence.

Allebach also makes the argument that Utica failed to show that the representations were false, and that Hurley knew of their falsity when they were made. Allebach argues that because the first complaint filed against Hurley was dismissed, and it was to that complaint that the letter of June 3rd referred, it was impossible for Hurley to have knowledge of the future claim upon which it contends this garnishment proceeding is based. This argument is unsound. The fact that the complaint that was filed as warned in the June 3rd letter was later dismissed sometime after September of 1974 does not prevent Hurley from having knowledge at the time he completed the application in June of circumstances from which a claim could arise. The application question involved in this appeal does not ask whether the applicant knows of any claims, but whether he knows of circumstances that could give rise to a claim. The inference to be drawn from these facts is that Hurley did have knowledge of such circumstances. He went so far as to engage an attorney to represent him on the basis of Allebach’s letter. We hold that the trial judge did not abuse his discretion in finding from the stipulated facts that the statements were false and that Hurley knew of their falsity. Further, we note that the trial judge was well within his discretion to disregard Hurley’s self-serving statements in his notice to the insurer made in 1976 to the effect that he had no knowledge of any claim when the application was made.

Allebach argues lastly that bad faith was not proven because it is possible that Hurley had left the question blank, and the answer was filled in by some other person. We merely note again that we must consider all facts in the light most favorable to Utica, the verdict winner. We also note that Allebach has failed to present facts which would have shown any impropriety here. Further, as has been stated, the application provided that should any questions be left blank, they were assumed to have been answered in the negative. It would not have been error for the trial court to have drawn the inference here that Hurley left the space blank knowing that it would be considered as a negative response. As we uphold the trial court’s finding that Hurley knew of the impending claim when he completed the application, whether he chose to answer or leave the space blank does not affect our analysis. As this court stated in Baldwin, “ ‘It is sufficient to show that [the representations] were false in fact, and that the insured knew they were false when he made them ... since an answer known by an insured to be false, when made is presumptively fraudulent.’ ” Baldwin, 215 Pa.Super. at 438, 258 A.2d at 662 (quoting Evans v. Penn Mutual Life Insurance Co., 322 Pa. 547, 553, 186 A. 133, 138 (1936). We therefore hold that Utica sustained its burden of proving misrepresentation, and that the trial court did not err in allowing recision on that ground.

Allebach then argues that Utica should have been precluded from rescinding the policy because it, Allebach, was a third party beneficiary of the contract between Utica and Hurley. Allebach argues that to allow recision would violate a strong public policy of protecting the rights of injured parties. In support of its contentions, it cites Philadelphia Forrest Hills Corp. v. Bituminous Casualty Corp., 208 Pa.Super. 461, 222 A.2d 493 (1966) and Green v. Juneja, 337 Pa.Super. 460, 487 A.2d 36 (1985). We find neither of these cases to be apposite. In Bituminous Casualty, the insured was adjudicated a bankrupt, and the creditor instituted a suit against the insurer. Despite an earlier settlement before the bankruptcy of the insured, the court allowed the creditor to proceed as a third party beneficiary. The policy contained a provision which stated that bankruptcy of the insured would not relieve the insurer of its obligation under the policy. The court held that where the policy permits suit, the injured creditor may be considered a third party beneficiary entitled to maintain a direct action against the insurer. Bituminous Casualty, 208 Pa.Super. at 463, 222 A.2d at 494.

In Green, the insured attempted to cancel his medical malpractice insurance after the claim arose. The court was concerned with compliance with cancellation procedures of the Health Care Services Malpractice Act, and whether or not retroactive cancellation of the policy was effective. After an analysis of these issues, the court refused to discuss the issue of misrepresentation of the insured, since the question went to the termination of the policy, not its inception. Green, 337 Pa.Super. at 466, 487 A.2d at 40. The court pointed out that although it had affirmed the trial court’s decision that the policy cancellation was waived on the basis of the insurer’s failure to notify the insurance commissioner of the cancellation, the cancellation was also not valid because to allow the insurer to cancel the policy after the injury would have been inequitable to the injured person. Id., 337 Pa.Superior Ct. at 467 n. 8, 487 A.2d at 40 n. 8. This, however, speaks only to the cancellation of a policy, not to the voiding of a policy ab initio. The instant case involves the recision of the policy, that is, a finding that the policy was void ab initio, and not a cancellation of that policy once the injured party attempted to bring suit.

While the public policy behind the mandatory nature of certain types of insurance, for example, insurance in the health fields, see Green, supra, and automobile insurance, see Ferguson v. Employers Mutual Casualty Co., 254 S.C. 235, 174 S.E.2d 768 (1970), precludes the cancellation of a policy when the third party has already been injured, Allebach has not made any argument to us that it was compulsory for an insurance agent to have an insurance policy to cover errors and omissions. As the Ferguson court stated:

The primary purpose of compulsory motor vehicle liability insurance is to compensate innocent victims who have been injured by the negligence of financially irresponsible motorists. Its purpose is not like that of ordinary liability insurance____ The injured person’s rights against the insurer are not derived through the insured as in the case of voluntary insurance. They are statutory and become absolute on the occurrence of an injury covered by the policy.

Ferguson, 254 S.C. at 242, 174 S.E.2d at 771. In this case, the rights of the injured entity, Allebach, did not have its rights vest upon the injury. No public policy as set out by statute requires this conclusion. As in any situation involving voluntary insurance, Allebach’s rights against the insurer are derived through the insured. Public policy does not require Allebach to be treated as a third party beneficiary here.

Further, in the instant case, the creditor, Allebach, has cited no language in the policy which would allow it to bring suit as a third party beneficiary. We hold that Folmar v. Shaffer, supra, controls here. As in that case, “[appellants] have not sued appellee as the insurer; they have only served it as garnishee. The position they have chosen is that of attaching creditors, not third party beneficiaries. Thus regardless of the wording of the policy, the law of garnishment applies.” Folmar, 232 Pa.Super. at 24, 332 A.2d at 823. Under the law of garnishment, the garnishee is in the same relation to the attaching creditor as to the former creditor, and may assert any defense against the attaching creditor that it could against the former creditor. Almi, Inc. v. Dick Corp., 31 Pa.Commw. 26, 34-35, 375 A.2d 1343, 1348 (1977). The trial court did not err in finding that the defense of misrepresentation was effective against Allebach.

Allebach’s second and fourth arguments are premised upon the possibility that this court might find Utica to be obligated to insure Allebach. Because we find that the trial court did not err in finding that the policy was properly rescinded and therefore void from its inception, we will not consider those claims.

Order of the trial court is affirmed.


source: Caselaw Access Project

author: TAMILIA, Judge: CIRILLO, President Judge,

license: Public Domain

text:
    540 A.2d 297
    COMMONWEALTH of Pennsylvania v. Joseph BELLS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1988.
    Filed April 6, 1988.

      Robert S. Robbins, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Appellant was convicted following trial by jury of the following crimes and sentenced to imprisonment as stated: involuntary deviate sexual intercourse (7 to 15 years); kidnapping (consecutive 2 to 5 years); robbery (consecutive 1 to 3 years); and possession of an instrument of crime (concurrent 1 to 3 years). Convictions for theft and false imprisonment merged. Appellant filed post-trial motions which were subsequently argued and denied by the trial court. Appellant raises several issues in this appeal of his convictions and his sentence for involuntary deviate sexual intercourse. These issues can summarily be stated as follows: 1) whether his arrest was based upon probable cause; 2) whether his trial counsel was ineffective; and 3) whether his sentence for involuntary deviate sexual intercourse was excessive.

On August 25, 1986 at approximately 4:30 a.m., Laura Smith fell asleep behind the wheel of her parked car after dropping off a friend in the Germantown section of Philadelphia. Appellant walked past the victim’s car and seeing her asleep, entered the car on the driver’s side, pushing the victim over. Appellant held a knife in his hand and demanded jewelry and money. After giving appellant what she had, the victim begged him to let her go. When she reached for the door, appellant poked her with his knife and warned her he did not want to hurt her but he would. He also told Miss Smith he had a gun in the duffle bag which he was carrying. Appellant then drove the car to the end of the block where he ordered the victim into the back seat. There he forced her at knife point to perform oral and anal intercourse. Appellant then climbed back into the front seat and ordered the victim to join him because they were going for a drive. He drove around Germantown while he talked with her about the possibility of them seeing each other as “boyfriend and girlfriend.” When Miss Smith was unresponsive to appellant’s conversation, appellant threatened to sexually assault her again. He asked her to meet him that night at the Baby Grand Bar on Germantown Avenue at 11:00 p.m. He drove by the bar several times to show her where it was and forced her to promise to meet him there. When appellant finally got out of the victim’s car, he hugged and kissed her and demanded that she reciprocate. The whole ordeal lasted approximately two hours.

The victim described her attacker to police as a black man with facial hair, a dark complexion, slightly over six feet tall, approximately 170 pounds, with dark eyes, dark clothing, and approximately twenty-four or twenty-five years old. He also wore his long hair combed straight up and had very strong body odor. The victim agreed with the police to park her car in front of the Baby Grand Bar at 11:00 that night while police staked out the area. She was to turn off her headlights as a signal to the police officers whenever she saw the appellant. During the stake-out several black men walked past her car as the officers watched from unmarked vehicles but she never gave the signal. Finally, appellant, who fit the description, was walking toward the bar just before 11:00 p.m. As he approached the bar he looked in the direction of the police vehicle and then turned onto a sidestreet before reaching the bar. The victim did not give the signal this time either. Two officers, however, believing the appellant to be the attacker based on the victim’s previous description, followed the appellant in their car for a short distance before stopping alongside him. They got out of their car and identified themselves as police officers. As they approached appellant they immediately smelled a strong odor and noticed a bulge under appellant’s shirt. One of the officers conducted a pat-down search which uncovered a knife-like tool fitting the description given by Miss Smith. A further pat down uncovered the rings which had been stolen from the victim. Miss Smith positively identified the knife and rings. The next month she viewed a lineup and identified appellant as her attacker despite the fact that at this time his hair was closely cropped and he had shaved.

Appellant’s first contention is that the police lacked probable cause to arrest him and therefore, the evidence which resulted from this unlawful arrest should have been suppressed. We find the officers did have probable cause to arrest appellant; thus, there is no need to address the suppression issue. In determining the existence of probable cause, ‘[t]he crucial test is whether there were facts available which would justify a person of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator.’ ” Commonwealth v. Morris, 320 Pa.Super. 139, 145, 466 A.2d 1356, 1359 (1983), quoting Commonwealth v. Wilder, 461 Pa. 597, 600, 337 A.2d 564, 566 (1975). Using this test, we conclude Miss Smith provided the police officers with sufficient facts to warrant the officers’ belief that appellant was the one who assaulted her. The appellant was in the precise location where he had instructed the victim to meet him at the designated time. The victim gave police a detailed physical description of her attacker as well as a description of the unusual knife he carried. The description was not of the kind which would apply to a large number of people; it was detailed enough to provide a substantial basis for the police to pick out appellant from the many black men who were in the area of the Baby Grand Bar that night. In Commonwealth v. Reel, 449 Pa. 381, 453 A.2d 923 (1982) the Pennsylvania Supreme Court stated there is probable cause to arrest when an eyewitness gives a detailed physical description of the actor which leads the police to believe that a certain person is the described actor. Appellant insists the description provided by Miss Smith was not precise enough and that many men in that area of Philadelphia fit the given description. This argument overlooks the fact the officers were looking for a man of these characteristics only at the Baby Grand Bar at 11:00 p.m., the appointed rendezvous time. Although we believe the description provided by the victim in this case was sufficient, standing alone, as a basis for probable cause to arrest appellant, the totality of the circumstances which the police are facing must be considered. “Facts insufficient to justify an arrest if considered separately may in combination supply probable cause.” Commonwealth v. Verdekal, 351 Pa.Super. 412, 420, 506 A.2d 415, 419 (1986). The detailed description given by Miss Smith of her attacker plus the fact this man was to be at the Baby Grand Bar at 11:00 p.m. supplied the police with sufficient information to give them probable cause to arrest appellant.

Appellant’s second contention is that his trial counsel was ineffective for not entering a motion to exclude appellant’s prior criminal record so that he could testify on his own behalf without fear of impeachment. This claim is without merit, however, since appellant’s previous convictions were for crimes involving dishonesty (e.g. theft, attempted theft). Under the standard set forth in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987) these convictions could be introduced to impeach appellant’s credibility and the court could not exclude this as inadmissible. Trial counsel is not ineffective for failing to raise a merit-less claim. Commonwealth v. Cotton, 338 Pa.Super. 20, 487 A.2d 830 (1984).

Appellant also claims his counsel was ineffective for not raising the unconstitutionality of the sentence appellant received. Two arguments were raised. First, he argues the sentence should be set aside because the trial judge did not make a statement of the reasons and factors considered for the sentence imposed. This is totally without merit; a simple review of the transcript of the sentencing shows the judge based his decision upon the heinousness of the crimes committed against Miss Smith and the incorrigibility of appellant.

Appellant’s second argument is that the sentencing guidelines are invalid, therefore his counsel was ineffective for not raising the issue in post-verdict motions. This argument is based upon the recent decision by our Supreme Court in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). The Court found the sentencing guidelines were not adopted according to the requirements of the Pennsylvania Constitution under article III, § 9. Thus, the guidelines had “no force at all.” For a party to successfully argue the Sessoms decision applies to their case, however, the issue must have been “properly preserved at all stages of adjudication up to and including any direct appeal.” Sessoms, supra, 516 Pa. at 380 n. 2, 532 A.2d at 782 n. 2, quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983). Since appellant did not properly preserve this issue, Sessoms is not applicable to his case. We cannot accept appellant’s contention that his trial counsel was ineffective for not raising the issue in post-verdict motions. At the time the post-verdict motions were filed by appellant’s trial counsel, Sessoms was not decided.

Finally, appellant’s third claim is that the sentence of 7 to 15 years he received for his conviction on involuntary deviate sexual intercourse was excessive, thereby violating the VUIth and XIYth amendments to the Constitution. Involuntary deviate sexual intercourse has an offense gravity score of 9; appellant has a prior record score of 1. The applicable guideline ranges, therefore, inclusive of the deadly weapon enhancement, are as follows: minimum, 54-90 months; aggravated, 78-106 months; and mitigated, 43-66 months. Appellant’s sentence falls within the minimum range of the guidelines and is less than the statutory maximum of twenty years (18 Pa.C.S.A. § 3123; 18 Pa.C. S.A. § 1103(1)). The trial court has discretion in sentencing defendants and there was certainly no abuse of discretion here considering appellant’s history of criminal activity and the circumstances of the crimes at issue. Thus appellant’s claim is frivolous.

Judgment of sentence affirmed.

CIRILLO, President Judge, filed a concurring and dissenting opinion.

CIRILLO, President Judge,

concurring and dissenting:

I join in the majority’s disposition of the issue involving probable cause, and concur in the disposition of the narrow issue presented in appellant’s ineffectiveness claim, that is to say, that finding counsel ineffective for failure to raise a Sessoms argument in this case when Sessoms had not yet been decided would be inappropriate since we cannot hold attorneys responsible for predicting changes in the law. However, because my analysis of the sentencing issue differs from that of the majority, I write separately to clarify my position on the broader concerns implicated by appellant’s ineffectiveness argument. I must also express my dissent from the majority’s analysis of appellant’s claim that the sentence imposed upon him was excessive.

With respect to appellant’s claim that counsel should have questioned the constitutionality of the sentencing guidelines, I must point out that even if the claim of unconstitutionality had been raised by counsel at every point in the appellate process, that mere claim is not a password to appellate review of the merits of the case. I am of the opinion that merely stating that the Sentencing Guidelines are unconstitutional, without more, cannot raise a substantial question under Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The Sentencing Guidelines were never more than guidelines for the sentencing courts to follow; an abuse of discretion cannot be implied from the fact that a sentence was imposed under the guidelines before their invalidation. For this reason, I would find that failure to preserve the unconstitutionality argument here was not grounds for an ineffectiveness claim. Counsel cannot be found ineffective for failing to raise a meritless claim. Commonwealth v. Arthur, 488 Pa. 262, 265, 412 A.2d 498, 500 (1980); Commonwealth v. Jones, 365 Pa.Super. 57, 62, 528 A.2d 1360, 1363 (1987).

I dissent from the majority’s consideration of Bells’ claim that his sentence was excessive. I disagree with the majority decision in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), which held that an appellant’s failure to comply with Rule 2119(f) of the Pennsylvania Rules of Appellate Procedure and Tuladziecki, if not objected to by the appellee, is a waivable procedural violation. In my opinion, the majority in Krum has misinterpreted the supreme court’s decision in Tuladziecki. See Krum, 367 Pa.Super. at 523-524, 533 A.2d at 140 (Brosky, J., dissenting). In Pa.R.A.P. 2119(f), the supreme court has specified the manner in which an appellant seeking review of the discretionary aspects of sentence must petition our court for an allowance of appeal under 42 Pa.C.S. § 9781(b):

An appellant who challenges the discretionary aspects of sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

This was reiterated in Tuladziecki: “It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Tuladziecki, 513 Pa. at 515, 522 A.2d at 20 (emphasis added). If a party does not first articulate those reasons, we cannot, according to the decision in Tuladziecki, go rummaging through the record and the merits of the issue raised to discover some substantial question. I therefore take issue with the decision in Krum, and would find appellant’s claim waived for failure to supply a 2119(f) statement of reasons relied on for appeal.

Further, had I, like the majority, been able to reach the merits of Bells’ claim, I would not have analyzed it by resorting to discussions of offense gravity scores. Given Sessoms, the only analysis needed to dispose of the abuse of discretion claim was the majority’s consideration of the appellant’s history of criminal activity and the circumstances of the crimes for which he was sentenced, and its statement that the sentence was less than the statutory maximum. Discussion of the offense gravity scores was unnecessary, although not necessarily incorrect. Even though the sentencing guidelines were declared to be void ab initio, they were never more than recommendations to the sentencing court to aid in its determination of the appropriate sentence. The mention of them in connection with the analysis of a possible abuse of discretion on the part of the sentencing court is not fatal. I would only caution that whether or not a sentencing court has abused its discretion cannot be decided solely from an examination of the now-defunct guidelines.

      . Reasons for the sentence imposed must be placed on the record or the sentence may be set aside. Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982).

      . We note the apparent dichotomy facing appellant — to argue a Sessoms challenge, the issue had to have been preserved in a lower court motion. However, Sessoms was not decided when this case was resolved by the trial court and sentence rendered. To hold counsel accountable in such a situation would mean that every issue decided by a court would have to be challenged as unconstitutional "just in case” it is later found to be unconstitutional by a subsequent higher court decision. Such a result is undesirable. Counsel may not be held to be ineffective for failing to anticipate changes in case law or legislation. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).


author: KELLY, Judge:

text:
    540 A.2d 301
    Vernette KITRELL, Appellee, v. Juan R. DAKOTA, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1987.
    Filed April 7, 1988.

      Joel F. Bigatel, Philadelphia, for appellant.
    Fern L. Kletter, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

Appellant, Juan Dakota, appeals from an order determining paternity and awarding child support. We affirm.

Appellant raises four contentions on appeal. First, appellant contends the trial court erred in failing to recuse itself, sua sponte, as the result of its exposure to allegedly inadmissible and highly prejudicial evidence regarding blood test results during a pre-trial hearing. We find no merit in this contention. Next, appellant contends that trial counsel was ineffective in failing to conduct permitted discovery, failing to effectively cross-examine the plaintiff, and failing to object to prejudicial remarks by the prosecution. Appellant concedes this issue is without merit; however, appellant contends the trial court’s disposition was only proper because post-trial counsel was ineffective in failing to present evidence in support of the claims of trial counsel’s ineffectiveness. In Banks v. Randle, 337 Pa.Super. 197, 486 A.2d 974 (1984), this Court announced that the standard then applicable for disposition of ineffectiveness claims in criminal cases was to be applied to ineffectiveness claims in civil paternity proceedings. In this case we reconsider Banks in light of clarification of the criminal ineffectiveness standard provided by Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) and other recent cases, and conclude that those clarifications apply equally to claims of ineffective assistance of counsel in civil paternity proceedings. Applying the Pierce analysis, we find no merit in appellant’s contentions of ineffective assistance. Finally, appellant contends that the evidence was insufficient to establish paternity; we find no merit in the contention.

FACTS AND PROCEDURAL HISTORY

On August 20, 1984, appellee, Yernette Kitrell, filed a complaint requesting child support for her minor child, naming appellant as putative father and defendant. Appellee testified at the paternity trial on October 10, 1985, that she first met appellant at an Indian Powwow in August of 1983 and that they commenced a sexual relationship in September 1983 which continued until appellee was 3-V2 months pregnant with the subject child. She denied having relations with any other man between September and November of 1983; she indicated that her last menstrual cycle occurred in October of 1983. She testified further that she informed appellant of her pregnancy in late November 1983, and that appellant continued to see her but informed her they could not marry as he was engaged to another. Appellant denied these facts at trial. The trial court, sitting as finder of fact, however, specifically found appellee’s version of events to be more credible. The court ruled that appellee had established that appellant was the father of the child by the preponderance of the evidence; accordingly, an order was entered finding appellant to be the father of the child.

Appellant filed post-trial motions alleging, inter alia, ineffective assistance of trial counsel. At that juncture appellant had been represented by two different counsel, pre-trial counsel, trial counsel, and pre-trial counsel again for post-trial proceedings. Pre-trial counsel had requested and was granted permission by the trial court to conduct civil discovery; he intended to depose the appellee. However, when trial counsel succeeded pre-trial counsel, she chose not to depose appellee. Instead, trial counsel elected to file a motion to suppress evidence of blood test (HLA) results (which was granted) and to proceed to trial. Pre-trial counsel, in turn, succeeded trial counsel, and asserted in post-trial motions that trial counsel was ineffective for failing to depose the appellee and for failing to object to the prosecution’s remark made during pre-trial motipns that the blood tests were “99.99 per cent.”

The trial court granted an evidentiary hearing on the issue of trial counsel’s alleged ineffectiveness; however, post-trial counsel elected to forego the opportunity to present evidence in support of those claims (e.g. testimony of appellant and/or trial counsel) and instead presented argument that trial counsel also ineffectively cross-examined the appellee at trial. We note that this new argument had not been presented in appellant’s written post-trial motions.

All of appellant’s post-trial motions, including the ineffectiveness claims, were denied. Subsequently, on August 20, 1986, a hearing was held to determine appellant’s support obligation. After argument on appellant’s exceptions to the recommended award, the court entered a final order of support. Post-trial counsel was permitted to withdraw and present counsel (appellant’s third) was appointed to represent appellant in this timely appeal. We shall address appellant’s contentions on appeal seriatim.

I.

Appellant first contends that the trial court erred in failing to recuse itself, sua sponte, following its exposure to allegedly inadmissible and highly prejudicial evidence regarding blood test results, i.e. the district attorney’s assertion that the test results were “99.99 per cent.” We find no merit in the contention.

The challenge is based upon an exchange which occurred during a pre-trial hearing on the admissibility of the blood test results. (N.T. 10/9/86 at 10). In response to the challenged statement by the district attorney, the trial court, without waiting for objection by counsel for appellant, admonished the district attorney that admissibility of the tests was the only matter at issue. (N.T. 10/9/86 at 10). After some further discussion regarding admissibility, the district attorney agreed not to present the test results at trial; the trial court then noted that any further objections regarding the tests were rendered moot. (N.T. 10/9/86 at 12). Counsel for both parties agreed. (N.T. 10/9/86 at 12-13).

In its Pa.R.A.P. 1925(a) opinion, the trial court has unequivocally denied consideration of the district attorney’s remark in reaching its decision. Trial Court Opinion at 4. We accept this assurance; we note that judicial fact finders are deemed capable of disregarding most inadmissible evidence. Cf. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980) (a judge in bench trial is presumed capable of disregarding inadmissible evidence); Commonwealth v. Stinnett, 356 Pa.Super. 83, 97, 514 A.2d 154, 161 (1986) (same). Consequently, we reject appellant’s first contention.

II.

Appellant next raises several allegations of ineffective assistance of counsel. Before addressing the merits of these claims, we must first determine the proper standard to be applied to ineffectiveness claims regarding representation afforded defendants in paternity proceedings.

A.

In Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982), this Court concluded that because of the special interests at stake in paternity actions, an indigent defendant is entitled to representation by court-appointed counsel in order to ensure the defendant due process of law. In White v. Gordon, 314 Pa.Super. 185, 460 A.2d 828 (1983), this Court held that since indigent paternity defendants have a right to court-appointed counsel, “non-indigent paternity defendants must, at least, be afforded a reasonable opportunity to secure representation by counsel to assist in the defense of such claims.” 314 Pa.Superior Ct. at 189, 460 A.2d at 830.

In Banks v. Randle, supra, a panel of this Court stated that Corra v. Coll, supra, and White v. Gordon, supra, had firmly established the right to counsel in paternity proceedings. This Court then reasoned that the right to counsel would be meaningless in this context unless it included the right to challenge counsel’s effectiveness on direct appeal and explained further that a two-step analysis would be applied to assess the merits of such ineffectiveness claims:

The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025, 1028 (1980).

486 A.2d at 977.

The correctness of these decisions has not been challenged by either party in this appeal. However, in the time since Banks v. Randle, supra, was decided, our Supreme Court has refined its ineffective assistance of counsel analysis as applied in a criminal context. In Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987), this Court summarized the current standard as follows:

[I]n order to establish a claim of ineffectiveness, appellant must establish that: by act or omission counsel was arguably ineffective; counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different. Commonwealth v. Pierce, [515] Pa. [153], [157-60], 527 A.2d 973, 975-76 (1987); see also Commonwealth v. Johnson, [516] Pa. [407], [413], 532 A.2d 796, 799 (1987). (“The standard of review is that there must be a reasonable probability that but for counsel’s unprofessional errors, the result of the trial would have been different.”).

368 Pa.Superior Ct. at 376, 534 A.2d at 485. With respect to the issue of whether counsel’s act or omission could have had a reasonable basis designed to effectuate appellant’s interests, this Court noted specifically that:

The test must be objective rather than subjective. If the Court determines that a reasonable basis designed to effectuate the appellant’s interests exists for a particular act or omission, then, regardless of counsel’s purported subjective motivations for the act, appellant can not be said to have been denied a fair trial. The reasonableness of the act or omission precludes a finding of ineffectiveness.

368 Pa.Superior Ct. at 376 n. 1, 534 A.2d at 485 n. 1. (Citation omitted). Upon review of the reasoning set forth in Banks v. Randle, supra, we find that the test applied currently to claims of ineffective assistance of counsel in criminal cases applies with equal force to civil cases, such as paternity cases, where the right to effective assistance of counsel has been deemed a requirement of due process.

B.

Appellant contends that trial counsel was ineffective in failing to conduct permitted discovery, failing to effectively cross-examine the plaintiff, and failing to object to prejudicial remarks by the district attorney. Appellant also contends that post-trial counsel was ineffective in failing to present evidence at the evidentiary hearing in support of his claims that trial counsel was ineffective. We find no merit in these contentions.

In his appellate brief, appellant concedes that the trial court properly rejected appellant’s post-verdict assertions that trial counsel was ineffective; he acknowledges that post-trial counsel failed to present any evidence to support those claims. (Appellant’s Brief at 7-8). Thus, appellant actually presents only a single assertion of ineffective assistance of counsel, ie. post-trial counsel was ineffective in failing to present evidence in support of appellant’s claims that trial counsel was ineffective. There has been no evidentiary hearing on this claim.

In Commonwealth v. Petras, supra, this Court stated: When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the court below to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing. See Commonwealth v. Spotts, 341 Pa.Super. 31, 33, 491 A.2d 132, 134 (1985). However, remand for an evidentiary hearing is not a discovery tool wherein counsel may conduct investigation and interrogation to search for support for vague or boilerplate allegations of ineffectiveness. Rather, appellant ‘must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective,’ before remand for an evidentiary hearing will be granted. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Moreover, if it is clear that: the allegation lacks arguable merit; an objectively reasonable basis designed to effectuate appellant’s interests existed for counsel’s actions or inactions; or appellant was not prejudiced by the alleged error by counsel, then an evidentiary hearing is unnecessary. Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

368 Pa.Superior Ct. at 376, 534 A.2d at 485. In order to warrant remand for an evidentiary hearing on appellant’s present ineffectiveness claim, appellant must have offered to prove facts which if proven would establish post-trial counsel’s ineffectiveness; he did not.

When, as in this case, an assertion of ineffective assistance of counsel is based upon counsel’s alleged failure to effectively litigate a claim of ineffectiveness regarding prior counsel, proof of the merit of that ineffectiveness claim is necessary to establish the merit of the current ineffectiveness claim. Absent proof of the actual merit of the underlying ineffectiveness claim, actual prejudice with respect to the current claim cannot be established. Cf. Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305, 318-19 (1986) (where an ineffectiveness claim is based upon the alleged failure to effectively litigate a suppression claim, proof of the actual merit of the suppression claim is necessary to demonstrate actual prejudice). Thus, to warrant even an evidentiary hearing in the instant case, appellant must have made in this Court a specific offer to prove sufficient facts to establish: the ineffectiveness claims regarding trial counsel were meritorious; post-trial counsel had no reasonable basis for failing to present evidence necessary to establish the merit of the prior claims; and, had the claims been found to be meritorious the result would have been more favorable to appellant (e.g. the trial court would have granted a new trial rather than denied the post-trial motions).

Appellant first contends post-trial counsel ineffectively litigated appellant’s claim that trial counsel was ineffective in failing to object to the allegedly prejudicial remark discussed in Part I of this opinion. We have previously noted that the trial court stated that it did not consider the challenged statement in reaching its decision in this case and that we accept the assurance given by the trial court. As no actual prejudice could have arisen from the statement under these circumstances, counsel’s failure to object cannot constitute ineffective assistance of counsel, and likewise post-trial counsel’s conduct cannot constitute ineffective assistance of counsel.

Appellant also contends that post-trial counsel ineffectively litigated his claims that trial counsel was ineffective in failing to conduct discovery and in failing to effectively cross-examine the plaintiff. Appellant argues that had pre-trial discovery been conducted, counsel would have been better able to cross-examine the plaintiff and expose inconsistencies in her version of the facts. Appellant also argues that discovery and cross-examination could have better established a basis for appellant’s assertion that “the plaintiff’s motive in naming him as the father arose out of a consuming desire on the plaintiff’s part to be accepted as an American Indian when she was in fact a black woman____” (Appellant’s Brief at 14).

The pregnant omission from appellant’s argument is the absence of any offer to establish specific facts that trial counsel failed to discover or use at trial which would have aided appellant’s case. Appellant merely speculates that use of discovery and “better” cross-examination would have helped to establish appellant’s defense. This claim proffers little but vague conjecture; it is patently insufficient to warrant an evidentiary hearing. See Commonwealth v. Petras, supra, 534 A.2d at 485; Commonwealth v. Stinnett, supra, 514 A.2d at 157.

Moreover, the use and conduct of both depositions and cross-examination are matters of style and tactics involving subtle stratagems which are ordinarily within the exclusive province of trial counsel. Cf. Commonwealth v. Petras, supra, 534 A.2d at 487. The use of depositions and cross-examination may indeed reveal the opponent’s strategy and expose contradictions and inconsistencies in the testimony of the opponent’s witnesses; however, they may also reveal portions of the proponent’s strategy, provide the opponent’s witnesses with a dress rehearsal for in-court testimony, and enable the opponent to develop plausible explanations for apparent inconsistencies in its witnesses’ testimony.

Without specific allegations as to known facts which counsel failed to discover or utilize, there is simply no basis upon which to conclude that trial counsel’s tactical decision not to pursue the course now urged on appeal was unreasonable, nor is there any basis upon which to conclude appellant was actually prejudiced by the alleged ineffectiveness. We will neither assume prejudice based upon vague speculation, nor remand for a fishing expedition-like evidentiary hearing. Because appellant has failed to make a sufficiently specific offer of proof of facts which would establish ineffective assistance of trial counsel, his claim on appeal that post-trial counsel ineffectively litigated his claim that trial counsel was ineffective must be rejected.

III.

Finally, appellant contends that the evidence was not sufficient to sustain the finding of paternity. Appellant’s arguments in this respect are confined exclusively to an attack upon the trial court’s determination of the credibility of the witnesses; appellant’s argument as much as concedes the sufficiency of the evidence and actually involves a challenge to the weight of the evidence. (Appellant’s Brief at 19-20). However, the characterization of the contention makes no difference. It is axiomatic that the credibility of the witnesses was a matter reserved to the sound judgment of the finder of fact, in this case the trial court; moreover, upon review of the record, the briefs of the parties, and the opinion of the trial court, we find that the order determining paternity and ordering support is sustained by sufficient evidence and is not contrary to the weight of the evidence.

CONCLUSION

Based upon the foregoing, the order of the trial court is affirmed.


author: DEL SOLE, Judge: WIEAND, Judge,

text:
    540 A.2d 307
    Clarence J. YOHO and Jean B. Yoho, v. Gerald C. STACK and Joan L. Stack. Appeal of Gerald C. STACK.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1988.
    Filed April 7, 1988.

      William J. Kubiak, Bradford, for appellants.
    Daniel J. Hartle, Assistant District Attorney, Smethport, for appellees.
    Before BROSKY, WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

This is an appeal from the Order entering final judgment in which it was determined that Appellees had established title to certain property, the ownership of which was disputed by the parties. Likewise, the Order stated that Appellant and his wife had failed to demonstrate ownership of the property by adverse possession.

The record shows that Appellees filed an action for declaratory judgment against Appellant and his wife alleging that they were the owners of a strip of land separating the parties’ properties. The parties own adjoining rectangularly shaped farms. Appellees’ is to the north of Appellant’s. The two farms are divided by a boundary running from east to west. The location of this boundary line was the subject of the landowners’ dispute.

Following a nonjury trial, the Chancellor filed a decree nisi. Therein, the Chancellor adopted Appellees’ survey of the boundary line between the properties. In addition, it was decided that Appellant and his wife had not presented the necessary evidence to establish adverse possession of the strip of land in question. Post-trial motions were filed and later denied. This timely appeal follows.

Appellant raises three issues in this appeal:

1. Did the Trial Court err in accepting the survey of Plaintiffs [Appellees] Yoho over the survey of Defendants [Appellant] Stack;
2. Did the Trial Court err in accepting expert testimony from an unlicensed surveyor; and,
3. Did the Trial Court err in finding that Defendants [Appellant] Stack did not present sufficient evidence to establish title to the disputed property by adverse possession?

We affirm.

Appellant first contends that the Chancellor erred in adopting Appellees’ survey which set the boundary between the two properties approximately 12 feet south of a tree-fence line which Appellant’s survey identified as the boundary. We begin our analysis of this issue by noting that our appellate scope of review in equity matters in narrowly limited. A chancellor’s findings of fact are binding on appeal if supported by substantial evidence. Nevertheless, we may appropriately review a chancellor’s determinations for errors of law or abuse of discretion. Alderfer v. Pendergraft, 302 Pa.Super. 210, 448 A.2d 601, 603 (1982).

During trial, Mr. Jon App, a licensed surveyor responsible for Appellees’ survey of the properties testified. Mr. App stated that he based his survey on a subdivision plan, referred to as the “Kingsbury map”. Both parties’ properties were originally a part of the Kingsbury plan. Mr. App noted that, by virtue of the fact that Appellees’ land was the first parcel of land to be sold from the subdivision, the description of this property had “senior” status over those sections of the land subsequently sold. Mr. App likewise utilized past surveys of the property which helped in designating what he felt were the proper four corners of his clients’ property.

On cross-examination, Mr. App was questioned why he did not take the tree-fence line into consideration while conducting the survey. Mr. App explained that, while the line was informative, he “ran 350 some acres to find out why it wasn’t important (N.T., 39).” The witness elaborated by stating that none of the deeds he had examined designated the tree-fence line as Appellees’ southern boundary. Furthermore, the tree-fence line was inconsistent with the conclusions he had reached after reconstructing the “Kingsbury map” plot lines. Mr. App commented that, under normal circumstances, he uses an established tree line or established fence line in drawing a boundary line. However, in cases such as the instant, monuments would be ignored if overwhelming physical evidence discrediting them existed (N.T., 40).

Mr. Manley Ackerman testified concerning a survey that he performed for Appellant and his wife. Contrary to Mr. App’s survey, Mr. Ackerman established the boundary line between the two properties as the tree-fence line. When asked why he preferred to use the tree-fence line over deed descriptions, the witness replied that Pennsylvania law provides that “the lines you find in the field, old fence and tree line[s] shall be accepted number one and that they take priority over everything else (N.T., 63).”

Upon review of the testimony of the surveyors, we find that the Chancellor’s decision to adopt Appellees’ proffered boundary line was supported by credible evidence. Thus, we find no abuse of discretion. Appellees’ surveyor, Mr. App, testified that his description of the boundary lines was based on his reconstruction of the original subdivision plan from which the parties’ properties were sold. Likewise, Mr. App relied upon other deed descriptions to support his conclusions. By comparison, however, Mr. Ackerman’s opinion that the tree-fence line was the correct boundary was based solely on the fact that it existed.

It is true, as Mr. Ackerman indicated, that where there exists a conflict between courses and distances or quantity of land, on the one hand, and natural or artificial monuments, on the other hand, the monuments will ordinarily prevail. However, Pennsylvania law likewise provides that “[wjhere the monuments are doubtful, resort will be had to the courses, distances, and quantity.” Howarth v. Miller, 382 Pa. 419, 115 A.2d 222, 224 (1955), quoting Post v. Wilkes-Barre Connecting R. Co., 286 Pa. 273, 133 A. 377, 378 (1926). In the case before us, the significance of the tree-fence line is at best questionable when we consider the fact that none of the deeds which Mr. Ackerman considered while performing his survey identifies this monument as a boundary line. Before a physical monument is accepted as a boundary line, there must be evidence other than its mere existence that the monument was intended for that purpose. We are aware of Appellant’s contentions that testimony was given by certain witnesses indicating that the tree-fence line was established by the parties’ predecessors in title as a boundary between the two properties. However, we are of the opinion that such testimony was relevant to the adverse possession question, not the issue of which survey should be accepted by the Chancellor. Accordingly, we find that the Chancellor acted properly in adopting Appellees’ survey.

Second, Appellant claims that the Chancellor erred in permitting the testimony of Mr. Howard Witchen, an unlicensed surveyor. Appellant argues that Mr. Witchen did not possess the necessary qualifications which would enable him to offer an opinion as to the location of the disputed boundary line. The record demonstrates that Mr. Witchen was called to testify to the effect that he had been hired by the parties at one time to determine the boundary between the properties. Mr. Witchen also testified that his survey of the property lines was consistent with Mr. App’s insofar as he, too, rejected the tree-fence line as a viable boundary.

A chancellor’s determination of an expert witness’ qualifications will not be disturbed absent an abuse of discretion. The Pennsylvania standard of qualification for an expert witness is liberal. A witness will be qualified as an expert if he or she has any reasonable pretension to specialized knowledge on the subject under investigation. The standard does not mandate, however, that the witness need possess all the knowledge in his or her special field of activity in order to qualify. Tyus v. Resta, 328 Pa.Super. 11, 476 A.2d 427, 435 (1984). Mr. Witchen testified that he had been employed by Pennzoil Company for fifteen years, during which time his responsibilities included survey and layout work. The witness was also employed intermittently by a licensed surveyor for ten years. Mr. Witchen testified that from these work experiences there were many occasions in which he interpreted deeds, deed book references, and related surveying materials. With respect to formal education, Mr. Witchen enrolled in correspondence classes to strengthen his surveying skills (N.T., 46-59). After reviewing the trial transcript, we find that the Chancellor did not commit an abuse of discretion in permitting Mr. Witchen to testify.

Finally, Appellant urges that the Chancellor erred in concluding that sufficient evidence to establish title to the disputed property by adverse possession was not presented at trial. It is well settled that a party asserting title by adverse possession must prove it affirmatively. A person claiming title by adverse possession must prove actual, continuous, visible, notorious, distinct, and hostile possession of the land for 21 years. In order for title to be conferred, each of these elements must exist. Klos v. Molenda, 355 Pa.Super. 399, 513 A.2d 490, 492 (1986).

In his “Memorandum and Order”, the Chancellor found that Appellant failed to carry the burden of proof on the issue of adverse possession:

[t]here was no credible evidence who built the fence, when it was built, and why it was located where it is. There was no evidence that it was a consentable boundary or that it has been accepted as the boundary by the parties or their predecessors in title, or that the erection and maintenance of the fence was hostile and adverse.

(Memorandum and Order, 3). The Chancellor’s findings of fact are binding on appeal if supported by substantial evidence. Nevertheless, we may appropriately review the Chancellor’s determinations for errors of law or abuse of discretion. Alderfer v. Pendergraft, supra, at 448 A.2d at 603. We have conducted an independent examination of the testimony concerning Appellant’s adverse possession claim and agree with the Chancellor’s determination that the necessary elements were not proven. The testimony introduced by Appellant and his wife with respect to their predecessor in title’s use of Appellees’ land for grazing purposes was confusing, at best. Under these circumstances, we shall not disturb the Chancellor’s factual findings.

Order affirmed.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring:

I concur. “[A] monument, in order to be favored in law over a mentioned course or distance for the purpose of construing an ambiguous description, must ... be a physical thing on the ground and must be mentioned in the deed.” 5 P.L.E., Boundaries § 9 (emphasis added). See also: Matthews v. Bagnik, 157 Pa.Super. 115, 118, 41 A.2d 875, 877 (1945). The tree-fence line upon which appellant’s surveyor relied is not identified as a monument in the deed descriptions. Therefore, it is not entitled to the controlling effect which appellant’s surveyor gave to it. The trial court did not err when it accepted appellees’ survey in preference to appellant’s survey.

I agree with and join the majority’s determinations that the trial court did not err in its receipt of or reliance upon the testimony of an unlicensed surveyor. I also agree that there is no basis on which this reviewing court can properly reverse the trial court’s determination that appellants failed to prove title by adverse possession.

      . Appellant’s wife, Joan L. Stack, is not a party to this appeal.

      . The doctrine of senior rights provides that "where there is a conflict between boundaries described in deeds from the same grantor, the deed first executed has priority, and the grantee named therein has superior title.” Wysinski v. Mazzotta, 325 Pa.Super. 128, 472 A.2d 680, 683 (1984).


author: CIRILLO, President Judge:

text:
    540 A.2d 311
    Kalani J. LOPA, Appellant, v. Maureen McGEE and Charles J. McGee.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1988.
    Filed April 13, 1988.

      William M. Cowan, Fairless Hills, for appellant.
    James J. Auchinleck, Jr., Newtown, for appellees.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment entered in the Court of Common Pleas of Bucks County in favor of appellees Maureen and Charles McGee and against appellant Kalani J. Lopa.

On September 16, 1983, Mr. Lopa filed a complaint in trespass against Maureen and Charles McGee seeking to recover for personal injuries and property damage which he suffered as a result of a motor vehicle accident on October 17, 1982. Mr. McGee filed a counterclaim to recover property damages arising out of the same incident. The accident occurred at the intersection of Trenton Road and Forsythia Drive South in Levittown, Bucks County. Mr. Lopa and Ms. McGee were approaching the intersection from opposite directions on Trenton Road. As Mr. Lopa proceeded on his motorcycle through the intersection, he was struck by the car driven by Ms. McGee, as it made a left turn. The car was owned by Charles McGee. The accident occurred at dusk.

After a non-jury trial, the Honorable William Hart Rufe, III, found that Mr. Lopa was negligent because his motorcycle headlight was not illuminated so that he was not properly visible. In addition, Judge Rufe found Ms. McGee was negligent because there was sufficient light for her to have seen Mr. Lopa if she had looked carefully and properly. Then, applying the Comparative Negligence Act, 42 Pa.C.S. § 7102, Judge Rufe held that fifty percent of the causal negligence was attributable to Mr. Lopa and fifty percent attributable to Ms. McGee. Having made this assessment, Judge Rufe then found for Maureen and Charles McGee on Mr. Lopa’s claim, and for Mr. Lopa on Mr. McGee’s claim. Thus, neither party was awarded recovery from the other.

Mr. Lopa filed post-trial motions and amended post-trial motions requesting the trial court to mold the judgment to the findings of fact or to enter a judgment non obstante veredicto. The trial court denied these motions. It is from this denial that Mr. Lopa appeals.

Mr. Lopa raises the following issues for our review: (1) should the trial court reapportion liability under the doctrine of comparative negligence where the apportionment of liability does not logically flow from the trier’s findings of fact; (2) should the trial court grant a judgment N.O.V. when, under the doctrine of comparative negligence, the apportionment of liability does not logically flow from the trier's findings of fact; and (3) under the Pennsylvania Comparative Negligence Act, 42 Pa.C.S. § 7102, is the appellant entitled to recover from the appellees.

In responding to the first issue Mr. Lopa raises on appeal, we note, as the trial court did, that in Burns v. City of Philadelphia, 350 Pa.Super. 615, 504 A.2d 1321 (1986), we enunciated the standard of review to be applied in reviewing a trial court’s apportionment of negligence under the Comparative Negligence Act. We stated that “the standard to be applied is not whether the court would have come to a different conclusion, but whether there are ‘evidentiary circumstances or incontrovertible facts of such weight as to convince the court that an injustice has been done.’ ” Id., 350 Pa.Superior Ct. at 626, 504 A.2d at 1326-27 (citation omitted).

Mr. Lopa does not dispute the trial court’s findings of fact; rather, he argues that the only logical conclusion that flows from them is that Ms. McGee was more negligent than he was. We disagree with this contention. The facts as found by the trial court can undoubtedly support the trial court’s apportionment of negligence between the parties. The trial court stated: “Although [Ms. McGee] did not maintain a careful and proper lookout, had [Mr. Lopa] been driving with his motorcycle headlight illuminated, he would have been more visible to [Ms. McGee]. In short, we find that the negligence of [Mr. Lopa] and [Ms. McGee] were substantial contributing factors to the accident and that [Ms. McGee] established [Mr. Lopa’s] contributory negligence to be fifty percent. Thus we see no injustice in finding [Mr. Lopa] fifty percent negligent.” We are unable to ascertain any valid reason that would support our overturning the trial court’s apportionment of negligence.

Mr. Lopa argues that the trial court improperly denied his motion for judgment N.O.V. since its apportionment of liability under the doctrine of comparative negligence does not logically flow from its findings of fact. In reviewing a trial court’s denial of a motion for judgment notwithstanding the verdict, we must view the evidence in the light most favorable to the verdict winner, resolving all doubts in his favor and giving him the benefit of every reasonable inference arising from the evidence. Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984). Furthermore, it is well established that a judgment notwithstanding the verdict should be entered only in a clear case, when the facts are such that no two reasonable people could fail to agree that the verdict was improper. Walsh v. Pennsylvania Gas & Water Co., 303 Pa.Super. 52, 449 A.2d 573 (1982). Mr. Lopa does not contest the trial court’s findings of fact. Therefore, since we find no error in the trial court’s apportionment of liability based on its findings of fact, we refuse to overturn the court’s denial of Mr. Lopa’s motion for judgment N.O.V.

Mr. Lopa also objects to the trial court’s determination that because he was fifty-percent negligent, he was barred from recovery. Pennsylvania’s Comparative Negligence statute states as follows:

(a) General rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

42 Pa.C.S. § 7102 (emphasis added). Applying the plain wording of the statute, recovery is barred only when a plaintiff is more negligent than the defendant or defendants. Since Mr. Lopa was fifty percent negligent and Ms. McGee was fifty percent negligent, Mr. Lopa’s negligence was not greater than the causal negligence of Ms. McGee. Accordingly, we find that Mr. Lopa is entitled to recover fifty-percent of his damages. See also Deitrick v. Karnes, 329 Pa.Super. 372, 382, 478 A.2d 835, 840 (1984) (actual damages diminished by fifty percent to reflect appellant’s causal negligence).

In accordance with the foregoing discussion, we reverse the order of the trial court and remand this case so that damages can be assessed and then properly apportioned between the parties pursuant to the findings of negligence made by the trial court. Jurisdiction is relinquished.