author:
KELLY, Judge:
      McEWEN, Judge,

text:
    544 A.2d 496
    COMMONWEALTH of Pennsylvania v. Victor Jude ROCCO, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1987.
    Filed June 30, 1988.

      Edward J. McMearty, Assistant Public Defender, Villanova, for appellant.
    Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellee.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

This case involves a direct appeal from judgment of sentence imposed on March 30, 1987, following appellant’s conviction of three counts of knowing and intentional possession of a controlled substance (methamphetamine and cocaine) with intent to deliver or manufacture. Appellant raises three issues on appeal: (1) whether the trial court erred in not granting the appellant’s motion to dismiss based upon prosecutorial vindictiveness; (2) whether the trial court erred by admitting into evidence at a hearing on a request for disposition under Section 17 of the Drug Act, the testimony of a Drug Enforcement Administration Official concerning distribution, sale and packaging of drugs and evidence of intercepted conversations concerning the sale and -obtaining of drugs as such was irrelevant and immaterial to the issue of appellant’s status as a drug addict under the Act; and (3) whether the trial court should have granted disposition under Section 17 of the Drug Act. We reverse and remand for an evidentiary hearing on the first issue.

The relevant facts and procedural history of this case may be summarized as follows. On June 12, 1984, Brian Sallade, a confidential informant working with the police department, purchased 13.9 grams of methamphetamine from the appellant. On August 8, 1984, Mr. Sallade purchased 28 grams of cocaine from the appellant. On September 18, 1984, Mr. Sallade purchased $5,000.00 worth of cocaine from an individual named Mark Much. This sale was made in appellant’s presence and in appellant’s home. On the same day, pursuant to a lawful warrant, the police conducted a search of appellant’s home. The police found 17.2 grams of methamphetamine, a jar of marijuana seeds and a growing season log. All of these transactions were part of an ongoing criminal investigation which apparently ended in September of 1984.

The appellant was arrested and charged with drug offenses relating only to the delivery made by Mark Much. On October 10, 1985, the Honorable Rita Prescott granted appellant’s motion for disposition of probation without verdict under Section 17 of the Drug Act. An appeal by the Commonwealth was dismissed by this Court on procedural grounds.

On October 16, 1985, only six days after the Section 17 disposition, a supplemental report was filed indicating that appellant was given probation under Section 17 of the Drug Act. This was the only entry made to this file since the investigation ended in September of 1984. On October 19, 1985, the complaint and affidavit of probable cause in the instant matter was filed. Appellant was charged with possession and possession with intent to deliver related to the June 12th and August 8th sales and the September 18th search. Appellant filed a motion to dismiss, which was denied.

On April 24, 1986, after a stipulated non-jury trial, the appellant was convicted of possession of a controlled substance with intent to deliver or manufacture. The appellant requested disposition under Section 17 of the Drug Act, which was denied following a hearing. Timely post-verdict motions were filed, argued and denied.

On July 30,1986, the Honorable Clement J. McGovern, Jr. sentenced the appellant to consecutive sentences consisting of not less than six (6) months nor more than twenty-three (23) months, and five years county probation on each of the three convictions respectively. On August 7, 1986, Judge McGovern granted the appellant’s motion for reconsideration and vacated the sentence of July 30, 1986. Argument was heard on September 5, 1986. Thereafter, on March 30, 1987, the previous sentence was reimposed. This timely appeal followed.

I.

Appellant’s first argument is that the trial court erred in not granting his motion to dismiss based upon prosecutorial vindictiveness. Appellant maintains that the present charges and the previous charges brought against him constitute a single criminal episode and as such should have been brought together. Appellant claims that the present charges were brought because the prosecution was dissatisfied with the perceived lenience of the disposition of the first charge under Section 17. As a result of the prosecution’s handling of this matter, appellant asserts that he was denied the right to seek disposition under Section 17 for all charges. Therefore, he claims that the case should be dismissed based on prosecutorial vindictiveness.

A.

The Supreme Court cases dealing with vindictive prosecution have recognized two distinct situations in which the appearance of vindictiveness may require inquiry and judicial intervention. The first is where a prosecutive decision is based on discriminatory grounds of race, religion, national origin or other impermissible classification. See e.g. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). The other situation is where the accused is treated more harshly because he has successfully exercised a lawful right, e.g. the right to seek a new trial. See e.g. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We find this case to be analogous to the latter situation.

In North Carolina v. Pearce, supra, appellant Pearce argued successfully that due to vindictiveness the trial court had sentenced him more harshly, after a successful appeal and reconviction. The Supreme Court held that imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be ... a violation of due process of law. Id. at 724, 89 S.Ct. at 2080, 23 L.Ed.2d at 668.

In Blackledge v. Perry, supra, the court again addressed the vindictiveness issue relating to the imposition of harsher sentence following retrial and reconviction. In that case, however, the impetus for the harsher sentence came not from the bench but from the actions of the prosecutor. Perry was found guilty of assault with a deadly weapon, a misdemeanor. He exercised his right, under North Carolina law, to a trial de novo in Superior Court. While Perry awaited trial, he was reindicted for assault with a deadly weapon with intent to kill and inflict serious bodily injury, a felony. The second indictment was based on the same facts as the first. On a writ of habeas corpus, Perry alleged that the indictment for the more serious felony charge was in retaliation for his seeking de novo review of his original misdemeanor conviction. The Supreme Court agreed, noting:

A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to significantly increased potential period of incarceration.

Id. 417 U.S. at 28, 94 S.Ct. at 2102, 40 L.Ed.2d at 634 (citations omitted). See also Lovett v. Butterworth, 610 F.2d 1002 (1st Cir.1979); United States v. DeMarco, 550 F.2d 1224 (9th Cir.1977).

We perceive these cases stand for the general proposition that defendants may not be coerced into foregoing lawful rights (constitutional, statutory, or procedural) by instilling fear that a harsher penalty may be imposed in retaliation for pursuance of those rights.

In Pearce and Blackledge, the Supreme Court presumed that the increased sentence and charge were the products of actual vindictiveness aroused by the defendants’ appeals. It held that the defendants’ rights to due process were violated, not because the sentence and charge were enhanced, but because there was no evidence introduced to rebut the presumption that actual vindictiveness was behind the increases; in other words, by operation of law, the increases were deemed to have been motivated by vindictiveness. See Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984).

In subsequent cases applying Pearce, however, the Supreme Court has made clear that due process does not forbid enhanced sentence or charges; rather, only enhancement motivated by actual vindictiveness toward the defendant for having exercised his legal rights is forbidden. See United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (presumption of prosecutorial vindictiveness not warranted where defendant charged with felony after refusing to plead guilty to misdemeanor charges; prosecutor’s charging decision made before trial is less likely to be improperly motivated than decision made after trial); Bordenkircher, supra (Due Process Clause of the Fourteenth Amendment did not prohibit a prosecutor from carrying out a threat made during plea negotiations, to bring additional charges against an accused who refused to plead guilty to the offense with which he was originally charged; there is no such presumption of vindictiveness in the “give and take” of plea negotiations, so long as the accused is free to accept or reject prosecution’s offer); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) (imposition of a higher sentence by a different sentencing jury on reconviction was not a product of vindictiveness); Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) (the possibility of vindictiveness, found in Pearce, is not inherent in the Kentucky two tier system, where the court which imposed the increased sentence after retrial was not the one whose original judgment had prompted an appellate reversal); Commonwealth v. Mikesell, 371 Pa. 209, 537 A.2d 1372 (1988) (murder defendant failed to establish that imposition of two life terms to run consecutively following third trial, while second trial before different judge resulted in sentence of two life terms to run concurrently, was result of actual vindictiveness on part of third trial judge).

The following general rule may be derived from the foregoing cases. If the defendant establishes facts which demonstrate the probability that an adverse action by the prosecution or the court has been motivated by vindictiveness in retaliation for the successful exercise of the defendant’s legal rights rather than for some other legitimate cause, then a presumption of prosecutorial vindictiveness arises which the Commonwealth must rebut with evidence of a legitimate explanation for the challenged conduct; the key to whether the presumption arises in a given case will be the factual circumstances in which the challenged action occurred.

If a prosecutor offers to accept a plea to charges lower than may be properly filed against an accused, no probability of vindictiveness arises from the fact that the prosecutor files the higher charges after the plea bargain is rejected. Bordenkircher, supra. If the trial court grants a retrial and later a different sentencing authority imposes a higher sentence following reconviction, no probability of vindictiveness would arise as a legitimate (non-vindictive) explanation is apparent, i.e. different sentencing authorities viewed the sentencing factors differently, and the second sentencing authority had no direct relationship to the prior sentence which had been set aside. Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986); Commonwealth v. Mikesell, supra. On the other hand, if after reversal of judgment of sentence by an appellate court, the same trial judge based upon the same operative facts imposes an enhanced sentence, a probability of vindictiveness is shown. Pearce; cf. Blackledge.

B.

Keeping in mind these principles, we now consider whether the presumption of prosecutorial vindictiveness applies to the matter before us. In the present case, appellant was arrested and charged with possession of a controlled substance with intent to deliver. Appellant requested disposition under Section 17, which was granted by Judge Prescott on October 9, 1985. Shortly thereafter, the present charges, which arose out of the same criminal investigation as the original charge, were filed against appellant. Appellant was convicted and sentenced to a term of imprisonment.

The law in Pennsylvania recognizes that the prosecutor is under no compulsion to prosecute every alleged offender, and the decision to prosecute or not to prosecute is a matter within his broad discretion. See Commonwealth v. Malloy, 304 Pa.Super. 297, 450 A.2d 689 (1982); see also Commonwealth v. Stinnett, 356 Pa.Super. 83, 95-6, 514 A.2d 154, 160-61 (1986) (discussing prosecutor’s broad discretion generally). In this matter, however, all of the charges brought against appellant arose out of the same factual nucleus. The discovery of the acts of appellant were obtained through a continuing undercover investigation by one team of prosecutorial agents. All the information relating to the present charges was available to the prosecution at the time the prior charges were filed. As such, the illegal conduct constituted a single criminal episode, which would have been subject to compulsory joinder had all of the charges been filed at one time. 18 Pa.C.S.A. § 110; Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983); Commonwealth v. Kaminski, 342 Pa.Super. 37, 492 A.2d 51 (1985). Had there been one trial on all the charges, appellant would have been a candidate for disposition under Section 17, because collectively all of the offenses charged would have constituted his first offense under 35 Pa.C.S.A. § 780-117(1).

Here, as in Pearce, Blackledge and DeMarco, the prosecution’s conduct has the deleterious effect of discouraging defendants from exercising a lawful right (in this case the statutory right to apply for probation without verdict under Section 17) for fear of prosecutorial retaliation. Due process requires that a defendant be freed of apprehension of such retaliatory motivation on the part of the prosecutor; therefore, we find the facts of this case support a reasonable inference that vindictiveness on the part of the prosecutor probably motivated the filing of the present charges and therefore we find that the presumption of vindictiveness applies. Compare United States v. Groves, 571 F.2d 450 (9th Cir.1978) (reversed and dismissed charge where the defendant was indicted for marijuana smuggling shortly after he was successful in securing dismissal of a cocaine charge, arising out of the same factual circumstances, pursuant to the Speedy Trial Act); Wynn v. United States, 386 A.2d 695 (D.C.App.1978) (found prosecutorial vindictiveness when the original criminal information was dismissed without prejudice for lack of speedy trial and new informations were filed for the same offense with addition of new charges arising out of the same factual situation).

C.

The presumption of vindictiveness, however, is rebut-table. Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986); Wasman, supra. The trial court’s disposition of this issue below made it unnecessary for the Commonwealth to show that their actions were not motivated by vindictiveness; our disposition, on the other hand, makes such a showing necessary. Therefore, we remand this matter for an evidentiary hearing to allow the prosecution the opportunity to rebut the presumption of vindictiveness which arises in the instant case.

II.

Appellant’s two remaining contentions are rendered moot in light of our disposition of the first issue. However, in anticipation of the possibility that the prosecutor may successfully rebut the presumption of vindictiveness on remand and resentencing may be required, we briefly address appellant’s remaining contentions.

First, we note that disposition under Section 17 is wholly discretionary and that any evidence relevant in a sentencing hearing generally is equally relevant in determining whether to permit a Section 17 disposition. As such, there was no abuse of discretion by the trial court in admitting into evidence at a Section 17 hearing evidence concerning the sale and distribution of drugs by appellant. See also Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987); Commonwealth v. Ruffo, 360 Pa.Super. 180, 520 A.2d 43 (1987).

Second, we note that any error in this respect would have been harmless. Subsection (3) of Section 780-117 specifically provides that “... probation without verdict shall be available to any person only once----” 35 Pa.S.A. § 780-117(3). As appellant was clearly ineligible for a second such disposition, the trial court did not (and could not in the future) err in denying a request for such a disposition.

CONCLUSION

Judgment of sentence vacated and remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

McEWEN, J., files a concurring and dissenting statement.

McEWEN, Judge,

concurring and dissenting:

Since I have such respect for the wisdom of my colleagues who compose the majority, I hasten to emphasize that I do not differ with the careful analysis nor the sound rationale of the majority. Rather, my disagreement is restricted to the conclusion I draw from the record before us, and the disposition commanded by that conclusion. Specifically, I am of a mind that the initiation by the district attorney of the subsequent prosecution was a patently retaliatory measure, and, thereby, the presumption of vindictiveness so irrebuttable that no purpose can be served by remanding for a hearing upon that issue.

      . 35 Pa.S. § 780-117.

      . Commonwealth v. Rocco, 362 Pa.Super. 259, 523 A.2d 1181 (1987).

      . We note that had appellant not applied for the special Section 17 disposition without conviction, the conviction or acquittal on the first charges would have barred prosecution of the present charges under 18 Pa.C.S.A. § 110. We also note, however, that we express no opinion at this juncture whether a Section 17 disposition as to all of the charges would have been appropriate. At this juncture, we address only the question of whether the facts give rise to a legitimate presumption that prosecutorial vindictiveness denied appellant the opportunity to apply for such a disposition.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    544 A.2d 501
    Joseph H. ANDERSON, Appellant, v. Sharlot Lonon ANDERSON and Louise Lonon Anderson, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 21, 1988.
    Filed June 30, 1988.

      Lynn Z. Gold-Bikin, Norristown, for appellant.
    Neil Kitrosser, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and McEWEN and MONTEMURO, JJ.
   PER CURIAM:

This appeal has been taken from an order, entered by the distinguished Judge Marjorie C. Lawrence, which rescinded and revoked a divorce decree which had previously been entered upon appellant’s complaint pursuant to 23 P.S. § 201(d)(l)(i). Appellant claims that the hearing court lacked the authority to rescind the decree. We disagree and affirm the order of the hearing court.

Appellant initiated this action by the filing of a complaint in divorce on June 18, 1987. The complaint, seeking dissolution of the parties’ marriage, and the affidavit executed by appellant in accordance with Section 201(d) of the Divorce Code and Pa.R.C.P. 1920.42(a)(2), were personally served upon appellee Sharlot Lonon Anderson that same day. The complaint was endorsed with a notice to defend and claim rights in accordance with Pa.R.C.P. 1920.71, and the affidavit was prefaced with the notice required by Pa.R.C.P. 1920.72(c). Eleven days later, on June 29, 1987, no answer or counteraffidavit having been filed by appellee, appellant served upon appellee, by certified mail, notice in accordance with Montgomery County local rule 1920.42(c), of his intent to file a Praecipe to Transmit the Record pursuant to Pa.R.C.P. 1920.42 and 1920.73. The praecipe was filed on July 9, 1987, and, on that same date, pursuant to an ex parte request by appellant’s counsel, a decree divorcing the parties was entered by the hearing court.

Six days later, on July 15, 1987, counsel for appellee entered his appearance and apprised the hearing court that he was representing appellee on a voluntary basis as part of the Philadelphia Volunteers for the Indigent Program. Counsel also filed a motion to open or vacate the July 9 divorce decree, citing 23 P.S. § 602, and alleging that, due to appellee’s indigent status and the recent appointment of volunteer counsel, appellee had not had sufficient time to respond to the divorce proceedings or to raise economic claims. On that same date, the hearing court entered the following order:

AND NOW, this 15th day of July, 1987, upon motion and representation of defense counsel that outstanding economic issues exist and that [appellee], an indigent, had insufficient time to respond and to retain counsel between the filing of the Complaint in Divorce and the entry of the Divorce Decree, and pursuant to 42 Pa.C.S. § 5505, IT IS ORDERED and DECREED that the DECREE IN DIVORCE entered July 9, 1987 is hereby RESCINDED and REVOKED and declared null and void.

This timely appeal followed.

Appellant raises two issues for our consideration. First, he alleges that the hearing court erred as a matter of law in holding that 42 Pa.C.S. § 5505 gave it the authority to rescind a valid divorce decree where grounds to open or vacate the decree in accordance with 23 P.S. § 602 had not been made out. In making this claim, appellant relies upon the first clause of Section 5505 of the Judicial Code, which provides that the section is to be applicable “except as otherwise provided or prescribed by law,” arguing that Section 602 of the Divorce Code is a contrary provision limiting the court’s power to modify or rescind a divorce decree. He also directs our attention to 1 Pa.C.S. § 1933, which sets forth the rule of statutory construction that, where a provision in a general statute conflicts with a special provision in the same or another statute, the two are to be construed, if possible, so as to give effect to both, but that if they cannot be reconciled, the special provision is to prevail.

In assessing this argument, the hearing court held that Section 5505 of the Judicial Code and Section 602 of the Divorce Code did not conflict, reasoning that Section 5505 of the Judicial Code dealt with the inherent powers of the court to reassess, modify and rescind its own orders, while Section 602 of the Divorce Code was intended to define the circumstances under which the parties were entitled to be granted relief from an otherwise final divorce decree. In so reading the two statutes, the hearing court properly applied the mandate of 1 Pa.C.S. § 1933 which provides that apparently conflicting provisions should be construed so as to give effect to both whenever possible and that one statute is to be given effect in derogation of another only where they are entirely irreconcilable. Moreover, an examination of the two statutes and case law addressing them supports the interpretation of the hearing court.

In Simpson v. Allstate Insurance Company, 350 Pa.Super. 239, 504 A.2d 335 (1986), this Court, sitting en banc, discussed the circumstances under which judgments entered in contested proceedings may be opened:

“ ‘Unlike a judgment entered by confession or by default, which remains within the control of the court indefinitely and may be opened or vacated at any time upon proper cause shown, a judgment entered in an adverse proceeding ordinarily cannot be disturbed after [it has become final].’ Klugman v. Gimbel Brothers, Inc., 198 Pa.Super. 268, 272, 182 A.2d 223, 225 (1962). A judgment entered in adverse proceedings becomes final if no appeal therefrom is filed within thirty days. See: 42 Pa.C.S. § 5505. Thereafter, the judgment cannot normally be modified, rescinded or vacated. Hunter v. Employers Insurance of Wausau, [347 Pa.Super. 227, 229, 500 A.2d 490, 491 (1985) ]. Similarly, it cannot be ‘opened.’ Livolsi v. Crosby, 344 Pa.Super. 34, 36, 495 A.2d 1384, 1385 (1985); Miller Oral Surgery, Inc. v. Dinello, [342 Pa.Super. 577, 580, 493 A.2d 741, 743 (1985)]; Kappel v. Meth, 125 Pa.Super. 443, 448-450, 189 A. 795, 797-798 (1937). ‘This doctrine, respecting judgments entered [in adverse proceedings], has a very definite function, namely, to establish a point at which litigants, counsel and courts ordinarily may regard contested lawsuits as being at an end. Klugman v. Gimbel Brothers, Inc., [supra 198 Pa.Super. at 272], 182 A.2d at 225. See also: Kappel v. Meth, [supra, 125 Pa.Super. at 450], 189 A. at 798.’ ”

Simpson v. Allstate Insurance Company, supra at 243-244, 504 A.2d at 337 (footnote omitted). Read in light of these general principles as to the finality of judgments in contested proceedings, it is clear that Section 602 of the Divorce Code is intended to define and to delimit the unusual circumstances which must be established by a party in order to bring his case within an exception to the general rule that such judgments cannot be modified, rescinded, vacated or opened.

As Simpson recognizes, the inherent power of the court to vacate, modify, or rescind its own orders in the absence of an appeal exists separate from, and in addition to, its authority to open, vacate or strike a judgment if an appropriate basis for such an action is established by the parties. The court’s exercise of its power under Section 5505 of the Judicial Code is almost entirely discretionary; this power may be exercised sua sponte, or may be invoked by a request for reconsideration filed by the parties, and the court’s decision to decline to exercise such power will not be reviewed on appeal. See: Provident National Bank v. Rooklin, 250 Pa.Super. 194, 202, 378 A.2d 893, 897 (1977). However, this power may be exercised only within the thirty-day period set out in Section 5505, and any request by the parties that the court exercise such power must be both made and ruled upon within that period: Simpson v. Allstate Insurance Co., supra 350 Pa.Super. at 244, 504 A.2d at 337 quoting Leonard v. Andersen Corp., 300 Pa.Super. 22, 25-26, 445 A.2d 1279, 1281 (1982) (citations omitted).

A party may always request a court to reconsider a judgment entered in adverse proceedings. However, such a request must be made within thirty days. “Absent a stay, the [trial] court must grant the petition for reconsideration within the thirty day appeal period to toll the appeal period____ If the [trial] court does not expressly grant reconsideration or enter an appropriate stay within the thirty day appeal period, its ‘power ... to act on the application for reconsideration ... is lost.’ ”

By contrast, a reading of Section 602 of the Divorce Code makes it clear that the authority of the hearing court to open, vacate or strike a judgment or decree pursuant to Section 602 may be exercised beyond the 30-day period provided by 42 Pa.C.S. § 5505, so long as a petition to open is filed within five years of the decree. Moreover, Section 602 sets out clear evidentiary requirements which must be met by the parties before the court may exercise its authority to open, vacate or strike a divorce decree, and the hearing court’s exercise of or refusal to exercise its authority under that section is reviewable on appeal. See: Major v. Major, 359 Pa.Super. 344, 354, 518 A.2d 1267, 1272 (1986) (opening of divorce decree was not proper remedy where requirements of 23 P.S. § 602 had not been satisfied); Fenstermaker v. Fenstermaker, 348 Pa.Super. 237, 238, 502 A.2d 185, 186 (1985) (where wife’s petition to amend divorce decree alleged conduct by husband amounting to extrinsic fraud and petition was not filed within 30 days of divorce decree, trial court should not have opened decree, but should have treated petition as one to vacate or strike decree and granted such relief). These characteristics of the court’s authority under Section 602 of the Divorce Code make clear that, in drafting Section 602, the legislature was addressing the same powers of the court to grant relief from final judgments in contested proceedings as were addressed by this Court in Simpson. The intent of Section 602 was thus to codify the extraordinary circumstances which will outweigh the interests of the parties and the court in finality, and to delimit the time periods which within such circumstances must be established. It was not to diminish the power of the court to alter its orders and decrees before they become final.

Since, in light of the above discussion, it is clear that 42 Pa.C.S. § 5505 and 23 P.S. § 602 address distinct powers of the hearing court, we must conclude that the hearing court correctly held that Section 602 of the Divorce Code is not a limitation upon the inherent powers of the court, codified in Section 5505 of the Judicial Code, to rescind or modify its own orders. Moreover, as the two statutes do not, when carefully read, address the same subject matter, they cannot be said to conflict so as to call into play the provisions of 1 Pa.C.S. § 1933. This conclusion is supported not only by the authorities already discussed, but also by 1 Pa.C.S. § 1928(b)(7), which provides that, to the extent that a statute would decrease the jurisdiction of a court of record, it must be strictly construed. Further support for this interpretation can be found in the Divorce Code itself, which states that its provisions are to be construed in light of the legislature’s expressed purposes, one of which is to “[ejffectuate economic justice between parties who are [in the process of divorce]”, 23 P.S. § 102(a)(6), and that “in all matrimonial [cases], the court shall have full equity power and jurisdiction”, 23 P.S. § 401(c). To read Section 602 of the Divorce Code as stripping from the court, in divorce actions, inherent powers available to it in other causes of action would be inconsistent with these provisions and would be contrary to the intent of the Divorce Code. We thus find no error of law in the decision of the hearing court to rescind the divorce decree in this case.

Appellant also contends that the hearing court erred in “opening the divorce decree in an ex parte proceeding solely upon appellee’s unverified motion which failed to allege intrinsic or extrinsic fraud, as statutorily required.” Had the hearing court granted the petition to open or vacate pursuant to 23 P.S. § 602, this argument might be persuasive. Here, however, the hearing court explicitly stated that it was not acting based upon a determination that appellee’s petition made out a basis for opening or vacating the decree under Section 602, but rather that its order was entered sua sponte in light of information of appellee’s indigence and the recent appointment of counsel. In so acting, the hearing court did not accept as true the allegations of an unverified petition, but rather exercised its inherent power to reconsider its order for any reason based upon the suggestion that equity might not have been served by the entry of a final decree in divorce, which would terminate appellee’s right to seek economic relief under the Divorce Code, a mere 21 days after the divorce complaint was filed and served upon her. Appellant has cited no authority limiting the bases upon which a hearing court may, sua sponte, reconsider its own orders, requiring that requests for reconsideration be verified, or requiring that a hearing be held prior to the court’s exercise of its power to reconsider. Accordingly, although we agree with appellant that it would have been preferable for appellee to have made her allegations in a verified petition, we cannot conclude that the hearing court committed reversible error in rescinding the divorce decree in light of the particular facts of this case.

Order affirmed.

      . Section 201 of the Divorce Code provides, in relevant part:

        § 201. Grounds for divorce
      ******
      (d)(1) It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken, and:
      (i) the respondent does not deny the allegations set forth in the affidavit____
      23 P.S. § 201(d)(l)(i).

      . The local rule provides:
      At least ten (10) days prior to filing the praecipe to transmit the record, the moving party shall serve all counsel of record as well as any unrepresented party with a copy of said praecipe and written notice of the intention to file the praecipe. The notice shall state that the praecipe shall be filed ten (10) days thereafter unless objections are filed. The praecipe shall not be filed until the objections are disposed of by the court.

      . 23 P.S. § 602 provides:
      § 602. Opening or vacating divorce decrees
      A motion to open a decree of divorce or annulment may be made only within 30 days after entry of the decree and not thereafter. Such motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or because of a fatal defect apparent upon the face of the record, must be made within 5 years after entry of the final decree. Intrinsic fraud is such as relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.

      . 42 Pa.C.S. § 5505 provides:
      § 5505. Modification of orders
      Except as otherwise provided or prescribed by law, a Court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of Court, if no appeal from such order has been taken or allowed.

      . Section 1933 of the Statutory Construction Act provides:
      § 1933. Particular controls general
      Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.
      1 Pa.C.S. § 1933.

      . Although no answer or counteraffidavit was filed by wife in this case, the divorce decree must be viewed as having been entered in a contested proceeding, as the Rules of Civil Procedure effectuating the Divorce Code specifically prohibit the entry of judgment by default or on the pleadings. Pa.R.C.P. 1920.42. This rule is in accordance with the well-established principle that, before granting a decree in divorce, the hearing court has the obligation to conduct a full review of the record and to make an independent determination that grounds for divorce are established. See, e.g., Aloi v. Aloi, 290 Pa.Super. 125, 129, 434 A.2d 161,163 (1981); Arcure v. Arcure, 219 Pa.Super. 415, 416, 281 A.2d 694, 695 (1971). This principle is embodied in the language of 23 P.S. § 201(d) itself, which does not mandate entry of a decree in divorce where its requirements are met, but rather provides that entry of a divorce "shall be lawful” under those circumstances, leaving the determination of whether or not the divorce should be granted within the discretion of the court.

      . Appellant also includes in his brief a short argument to the effect that, even if the court had the power to act as it did, it abused its discretion in doing so. This argument has not been preserved for our consideration, however, as appellant has failed to designate it as an issue in the Statement of Questions Involved in his brief and the issue cannot fairly be said to be suggested by the Statement of Questions, which frames appellant’s first issue as an allegation that the court committed an error of law. Pa.R.A.P. 2116(a). We note, moreover, that even if the issue had been preserved, we would have difficulty in concluding on this record that an abuse of discretion was committed. Although appellant complied with the strict letter of the notice requirements of the statewide and local rules of procedure governing divorce actions, it seems clear that the 21 days between the filing of the complaint and the entry of the divorce decree in this matter were an insufficient period for an allegedly indigent defendant to find and retain counsel and institute a defense to the action. Although we cannot condone a party's complete inactivity when served with process and advised of the pendency of an action against her, it does not appear that appellee in this case was completely inactive. Rather, it appears that she did take some action to procure counsel, but that this process did not proceed quickly enough to allow her to enter a defense on the record prior to entry of the divorce decree. We agree with the hearing court that such action, brought to the court’s attention a mere twenty-seven days after filing of the complaint and six days after entry of the decree, was a sufficient basis for the hearing court’s exercise of its inherent equitable powers.


author: MELINSON, Judge:

text:
    544 A.2d 506
    ESTATE OF Robert L. MYERS, Jr., Deceased. Appeal of Patricia MYERS, Administratrix, Appellant.
    Superior Court of Pennsylvania.
    Argued March 22, 1988.
    Filed July 12, 1988.

      Dean R. Phillips, Philadelphia, for appellant.
    G. Michael Green, Havertown, for appellee.
    Before CAVANAUGH, OLSZEWSKI and MELINSON, JJ.
   MELINSON, Judge:

This is an appeal from an Order of the Court of Common Pleas of Montgomery County, sitting en banc, sustaining Consuello Myers’s exceptions to an Orphans’ Court adjudication, and directing Patricia Myers, the administratrix of Robert Myers’s estate, to pay Consuello Myers Forty-eight Thousand and Twenty Dollars ($48,020.00) plus interest payable from July 17, 1985. We affirm.

Robert L. Myers, Jr. (hereinafter “Robert”), the decedent, and Consuello Myers (hereinafter “Consuello”), the appellee, were married on March 17, 1951. During the course of the marriage, the decedent purchased a life insurance policy from the National Automobile Dealers Insurance Trust (NADIT) for One Hundred Thousand Dollars ($100,000.00). Consuello was named as the beneficiary. Several years after the NADIT policy became effective, Robert and Consuello separated. During their period of separation, they executed a property settlement agreement which provided, in pertinent part:

... NOW THEREFORE, in consideration of the covenants and promises hereinafter mutually to be kept and performed by each party, as well as for other good and valuable consideration, it is agreed as follows:
1. Husband relinquishes his inchoate intestate rights in the estate of wife and wife relinquishes her inchoate intestate right in the estate of husband.
2. Husband upon the execution of this agreement agrees to pay wife the total sum of One Hundred Twenty Three Thousand One Hundred (123,100.00) Dollars to settle and determine the obligation of support and maintenance of the wife by the husband, which will be paid as follows:
b. The sum of One Hundred Fifty (150.00) Dollars per week for a period of fifty-two (52) weeks from the date of this agreement, and each year thereafter for a period of nine years the weekly support payments shall increase by the sum of Fifteen (15.00) Dollars per week each year for a total period of ten (10) years or Five Hundred Twenty (520) weeks.
c. Should wife die or remarry during the aforementioned ten (10) year period over which support payments are to be made then all payments shall cease as of the date of death or remarriage of the wife. If husband should die during the term of this Agreement, then the husband’s estate will be responsible for the balance of payments hereunder under the same terms and conditions, (emphasis added).

Robert negotiated this property settlement agreement with the benefit of counsel. The NAD IT policy is not mentioned within the agreement. In April of 1979, following execution of this agreement, Robert and Consuello divorced. Subsequently, Robert married Patricia Myers (hereinafter “Patricia”), the appellant at bar. Although the property settlement agreement did not require Robert to retain Consuello as the named beneficiary on the NADIT policy, he never changed the beneficiary on the policy. On May 1, 1985, Robert died. Consuello was still the named beneficiary on the NADIT policy. At the time of his death, Robert owed Consuello Forty-eight Thousand and Twenty Dollars ($48,020.00) in support and maintenance payments pursuant to the property settlement agreement.

Consuello filed an objection to the final account of the estate of Robert, claiming that the estate owed her the unpaid balance of the property settlement agreement. Following a hearing, an adjudication was entered by a Chancellor in Orphans’ Court, dismissing the claim of Consuello. The Chancellor held that the proceeds of the NADIT policy, although non-probate assets, represented wealth which the decedent had acquired in his lifetime, and which should be applied to pay off the liability for support and maintenance to Consuello. Consuello filed timely exceptions to this ruling. Argument upon the exceptions was held before the Court of Common Pleas of Montgomery County, sitting en banc. Following argument, an Opinion and Order Sur Exceptions to Adjudication was entered, reversing the Chancellor’s adjudication and ordering Patricia, as Administratrix, to pay Consuello the balance of the property settlement agreement, plus interest. The court supported this determination by reasoning that the NADIT policy was a contract separate from, and unrelated to, the property settlement agreement between Robert and Consuello; therefore, the policy proceeds could not be applied to satisfy the estate’s support obligation. This appeal timely followed.

One issue has been raised for our consideration: whether the en banc court below erred in refusing to apply a portion of Robert’s life insurance policy proceeds toward his estate’s unsatisfied obligation under a property settlement contract. With respect to this issue, Patricia contends that “where a creditor ex-wife is the beneficiary of a life insurance policy on the life of the debtor ex-husband, and the proceeds exceed the amount of the debt, a court of equity should treat the debt as satisfied.” She further argues that the provision relied upon by Consuello which makes the decedent’s estate responsible for the support obligation was intended to guarantee a source of funds for payment of the support obligation, and not to permit double recovery where the debt was satisfied from another source. We disagree and affirm the decision of the en banc court.

Initially, we note that a husband may assume a contractual obligation to his wife that will survive him and bind his estate. Estate of Mathay, 463 Pa. 486, 345 A.2d 623 (1975). Here, the face of the instrument clearly evinces an intent to have the estate of Robert fulfill his support obligation if he were to die during the term of the agreement. Even if we, as a court, wanted to, we could not alter the terms of this support agreement between Consuello and Robert. See VanKirk v. VanKirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984). Thus, the property settlement agreement at bar was a valid contract that properly extended Robert Myers’s obligation to his estate.

Furthermore, we are in agreement with the en banc Common Pleas Court that the NADIT insurance policy is a document unrelated to the property settlement agreement, and should not affect the unpaid balance of the support agreement. The proceeds of an insurance policy naming a third person as beneficiary belong exclusively to that person as an individual, and do not constitute part of the insured’s estate. Estate of Stalnaker, 330 Pa.Super. 399, 479 A.2d 612 (1984); see also Ervin Estate, 430 Pa. 431, 243 A.2d 420 (1968). In the case at bar, the NADIT policy was purchased during the course of the marriage between Consuello and Robert. They did not separate until several years after it became effective. Robert did not die until six years after his divorce from Consuello. He had been married to Patricia for several years prior to his death. Clearly, the decedent had ample time and opportunity to remove Consuello as the named beneficiary on the NADIT policy and to substitute another name.

This conclusion is buttressed by the fact that Robert was represented by counsel at the support and maintenance negotiations following his separation from Consuello. The agreement that was reached following these negotiations provided for over One Hundred and Twenty-Three Thousand Dollars ($123,000.00) to be paid to Consuello. The payment plan was detailed and complex. Obviously, this agreement was not taken lightly. A thorough examination of Robert’s financial status, by both Mr. Myers and his counsel, surely was undertaken. Thus, the parties to the negotiations had the opportunity to insert a clause in the property settlement agreement stating that any unpaid obligation for maintenance and support following Robert’s death was to be deducted from the NADIT policy, if that was their intention. They did not do so. Accordingly, we find that Consuello Myers is entitled to the balance due under the terms of the property settlement agreement, plus interest, as found by the en banc court below.

Order affirmed.

      . In Ervin, the issue was whether a separation agreement between husband and wife terminated at the husband’s death, or required the estate to continue support payments. There, the court found that “[t]he only circumstance that could possibly be viewed as supporting an intention that payments terminate at the husband’s death would be paragraph 6, providing that the husband maintain $35,000 of life insurance in favor of appellant.” Ervin, 430 Pa. at 436, 243 A.2d 420. Nonetheless, the court held that there was no reason why the life insurance could not be in addition to the payments for spousal support.


author: WIEAND, Judge:

text:
    544 A.2d 509
    Juan GARCIA and Nereida Garcia, Appellants, v. James E. BANG, Appellee.
    Superior Court of Pennsylvania.
    Argued March 10, 1988.
    Filed July 14, 1988.

      James H. Thomas, Lancaster, for appellants.
    Melinda Fisher, Lancaster, for appellee.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

On the evening of January 27, 1984, James Bang was operating his automobile southwardly on Route 72 in Lancaster County. When he came upon a slow-moving vehicle traveling in the same direction, he ignored the double yellow line on the highway, swung into the lane for approaching traffic, and started to pass. He did not complete the pass. He struck head-on a pick-up truck being operated in the opposite direction by Nereida Garcia. Garcia was seriously injured, and she and her husband commenced an action against Bang to recover damages. Bang filed a counterclaim to recover for the damages caused to his vehicle. The jury which heard the evidence refused to find Bang negligent, found Garcia solely responsible for the accident, and awarded damages to Bang for the full amount of his counterclaim. We reverse and remand for a new trial.

The accident happened about 7:20 p.m. Bang was driving toward Lancaster to pick up a friend and was scheduled on a flight leaving the Baltimore-Washington International Airport at 10:15 p.m. He was aware of the double yellow lines but, nevertheless, decided to cross into the other lane in order to pass the slow-moving vehicle to “save time” and “stay on schedule.” He said that he had not seen the approaching truck until the moment of impact. Garcia had left the parking lot at a dairy store and was returning home at the time of the accident. The testimony was in dispute regarding whether the headlights of the truck had been turned on. As she started into a curve in the two-lane highway, she collided with the Bang vehicle which was coming out of the curve on the wrong side of the double yellow line.

The rule in Pennsylvania is that violation of a statute is negligence per se. “The violation of a legislative enactment by doing a prohibited act ... makes the actor liable for an invasion of an interest of another.”. Jinks v. Currie, 324 Pa. 532, 538, 188 A. 356, 358 (1936) quoting Restatement, Torts § 286. See also: Kaplan v. Kaplan, 404 Pa. 147, 149, 171 A.2d 166, 167 (1961); Ennis v. Atkin, 354 Pa. 165, 169, 47 A.2d 217, 219 (1946); Salvitti v. Throppe, 343 Pa. 642, 644, 23 A.2d 445, 446 (1942).

Section 3307 of the Vehicle Code provides as follows:

§ 3307. No-passing zones

(a) Establishment and marking. — The department and local authorities may determine those portions of any highway under their respective jurisdictions where overtaking and passing or driving on the left side of the roadway would be especially hazardous and shall by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when the signs or markings are in place and clearly visible to an ordinarily observant person every driver of a vehicle shall obey the directions of the signs or markings. Signs shall be placed to indicate the beginning and end of each no-passing zone.
(b) Compliance by drivers. — Where signs and markings are in place to define a no-passing zone as set forth in subsection (a), no driver shall at any time drive on the left side of the roadway within the no-passing zone or on the left side of any pavement striping designed to mark a no-passing zone throughout its length.

75 Pa.C.S. § 3307(a) and (b).

It is undisputed that Route 72, at the scene of the collision between the Bang and Garcia vehicles, was divided by double yellow lines. These double lines announced to motorists using the highway that passing for vehicles moving in both directions was restricted because “overtaking and passing or driving on the left side of the roadway [was] especially hazardous.” It is also clear that defendant was aware of these double yellow lines but was determined to cross them in order to pass another vehicle moving in the same direction because he was in a hurry and wanted to “save time.” This was negligence per se.

We reject the argument advanced by defendant that he could not be negligent per se in the absence of evidence that signs had been placed at the beginning and end of the no-passing zone. The evidence showed that he had been aware of the double yellow lines and had known that he was in a no-passing zone but decided to cross the center of the highway in order to “save time” and “remain on schedule.” Signs are intended to alert motorists that they are approaching a no-passing zone. The absence of a sign at the beginning of the no-passing zone does not excuse a motorist who, being aware of double yellow lines on the road surface, elects nevertheless to cross over into the opposing traffic lane and pass a slow-moving vehicle in order to save time.

This Court’s decision in Cervone v. Reading, 371 Pa.Super. 279, 538 A.2d 16 (1988), is not to the contrary. In that case the appellant had been found negligent for operating his motorcycle across a double yellow line. He argued on appeal that the trial court had erred in permitting a jury to find negligence for crossing the double yellow lines because of the absence of signs along thé highway. Appellant had admitted at trial that double yellow lines on the road indicated “no passing” to him, but he had denied that he was attempting to pass. This Court held that the trial court had not erred when it allowed the jury to consider crossing the double yellow lines as evidence of negligence. Having made this determination, the Superior Court did not consider whether the absence of signs on the highway was sufficient to prevent a finding that defendant had been negligent per se for crossing the double yellow lines. The trial court’s instructions to that effect, even if more favorable to appellant than he was entitled to receive, were not a subject for review. Therefore, the Superior Court was not required to consider and did not decide whether crossing double yellow lines into an opposing lane of traffic, where signs had not been posted, was negligence per se.

The jury’s finding in the instant case that Bang was free of negligence cannot stand. It does not follow, however, that Garcia is entitled to judgment n.o.v. There is also evidence that the Garcia truck was being operated at night without lights. This evidence, if believed, would support a finding that Garcia was also negligent in causing the accident. See: 75 Pa.C.S. § 4302. Under these circumstances, the apportionment of causal negligence between Bang and Garcia was for the jury to determine pursuant to the Comparative Negligence Law. Although appellants are not entitled to judgment n.o.v., they are entitled to a new trial, for the jury’s verdict was clearly contrary to the weight of the evidence.

Appellants also complain that the trial court erred in its evidentiary rulings and jury instructions concerning Mrs. Garcia’s psychological injuries. It is obvious, however, that the jury did not reach the issue of damages and that these alleged errors, therefore, did not contribute to the verdict. Moreover, since the case must go back for a new trial, any review of appellants’ damage claims would be advisory in nature. Therefore, we decline in this appeal to review the damage issues raised by appellants.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . The jury had been instructed that "[i]f you find that there was a violation of [Section 3307], you must find that James Bang was negligent as a matter of law.”

      . 42 Pa.C.S. § 7102(a).

      . We perceive no error in the trial court’s evidentiary ruling which sustained an objection to the state trooper’s opinion regarding the point at which the "no-passing zone" started. He could properly be asked, however, to state the location of posted signs and markings on the surface of the highway.


author: BECK, Judge:

text:
    544 A.2d 512
    GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA, Appellant, v. David R. MARGERUM, Linda Susan Neiman, Administratrix of the Estate of Joseph John Neiman, Deceased and Paul Altimore and Joyce Altimore, H/W and Ira Margerum and Beatrice Margerum H/W and Anchor Yacht Club, Inc. and Peter S. Hricko, Appellees.
    Superior Court of Pennsylvania.
    Argued April 5, 1988.
    Filed July 14, 1988.

      James M. Marsh, Philadelphia, for appellant.
    Paul R. Beckert, Jr., Doylestown, for Neiman, appellees.
    Before WIEAND, McEWEN and BECK, JJ.
   BECK, Judge:

The sole issue in this declaratory judgment action is whether the appellee/defendant David Margerum was an “insured” person within the meaning of the automobile insurance policy that appellant/plaintiff, General Accident Company of America (“General Accident”) issued to Marge-rum’s employer, Peter Hricko. Margerum was driving Hricko’s van when he had an accident resulting in the death of a pedestrian. The pedestrian’s estate brought suit. Margerum was a defendant. General Accident denied coverage for Margerum and brought the instant action. After a non-jury trial, the trial court found that Margerum’s deviation in use from his employer’s express permission was not sufficiently substantial to deny coverage. General Accident was required to provide Margerum with a defense and with coverage up to the limits of the policy. General Accident appealed. We reverse.

In reviewing a judgment entered in a declaratory judgment action, we are bound by the narrow standard of review which exists in equity actions. A judgment of a trial court will not be reversed absent a clear abuse of discretion or error of law. Federal Kemper Ins. Co. v. Neary, 366 Pa.Super. 135, 530 A.2d 929 (1987).

The business automobile policy in question provides coverage to Hricko as the named insured and to any person using the vehicle with Hricko’s permission. The pertinent provision states:

IV. LIABILITY INSURANCE

D. Who is insured
1. You (the named insured) are an insured for any covered auto.
2. Anyone else is an insured while using with your permission a covered auto you own, hire or borrow.

This language provides that Margerum is an insured if his use of the van was within Hricko’s permission.

The record reveals that Hricko is the owner of a roofing company in Bristol, Bucks County. His business equipment includes two vans insured by General Accident. In December 1981, he hired Margerum to work as a laborer. At that time, Margerum lived with his parents in Cornwells Heights, Bucks County, approximately three miles from the roofing company. Hricko considered Margerum a dependable employee and was concerned that Margerum had no means of arriving at work other than hitchhiking. In mid-January, with the onset of unfavorable winter weather, Hricko offered a van to Margerum with the following restrictions: that it be used solely for commuting between home and work, that Margerum not drink and drive, and that the van not be used for personal reasons.

On January 22, 1982, approximately one week after Hricko permitted Margerum to begin using the van, Marge-rum requested permission to leave work early to attend his sister’s wedding in Newtown, Bucks County. Hricko granted the request but specifically instructed Margerum not to take the van to the reception and not to consume alcoholic beverages while driving the van. Margerum drove the van home to his parents and then received a ride to the wedding reception. He left the wedding at approximately 12:30 a.m., and his father drove him back to Cornwells Heights. Margerum then packed his work clothes for the next day, put them in the van and commenced driving about seven miles to his fiancee’s residence in Fairless Hills, Bucks County, where he intended to spend the night. As his fiancee’s residence was about four miles from the roofing company, his parents’ residence and his fiancee’s residence were approximately equidistant from his work place. While driving to his fiancee’s and still about a mile away from her residence, Margerum struck and killed a pedestrian, walking on the side of the road.

The police report in the record reveals that the violations indicated include driving while intoxicated. The trial court specifically found that during the course of the evening, Margerum imbibed steadily. Margerum did not present evidence to contradict his intoxicated condition at the time of the accident. The trial court states that Margerum was subsequently charged and convicted of.driving under the influence.

General Accident argues Margerum’s use of the van under the circumstances was not within Hricko’s permission and that, as a result, Margerum is not an insured under the policy. General Accident correctly recognizes that coverage to an omnibus insured will be extended if the driver’s deviation from the named insured’s permission is slight and inconsequential, but not if it is substantial. Freshkorn v. Marietta, 345 Pa. 416, 29 A.2d 15 (1942). General Accident thus contends that coverage should be denied because Margerum’s trip constituted a substantial deviation from the van’s permitted use. We agree.

The applicability of a permissive use clause was recently reviewed in Federal Kemper Ins. Co. v. Neary, 366 Pa.Super. at 139-40, 530 A.2d at 931:

Under an omnibus clause of an automobile insurance policy which designates as insured any person using the insured vehicle with the permission of the owner, the permission necessary to elevate the user to the status of an additional insured may be express or implied.... Implied permission may arise from the relationship of the parties or by virtue of a course of conduct in which the parties have mutually acquiesced.

In the case sub judice, the parties do not contend that there was an implied permission. Rather, the issue is whether Margerum’s use of the van to drive to his fiancee’s was within Hricko’s express permission. Based on Freshkorn, we look to whether Margerum’s use of the van was a substantial deviation from permission to determine coverage under the insurance policy.

The trial court focused on whether under the circumstances, the geographical deviation of about seven miles constituted a substantial deviation from Hricko’s permission to commute. The court relies upon Exner v. Safeco Ins. Co. of America, 402 Pa. 473, 167 A.2d 703 (1961). Exner involves a son accomplishing a substantial part of the thing for which his father gave him permission to use the insured motor vehicle. Exner distinguishes Freshkorn as a case involving one loan of a vehicle and a specific geographical location. Exner does not involve an omnibus insured’s violation of an express specific restriction on use.

In the case sub judice, as in Exner, Hricko’s instructions on what constituted commuting and personal use were not highly specific. He did not demand that Margerum travel a particular route or that Margerum continue to reside with his parents. In packing his work clothes and taking them to his fiancee’s, Margerum was generally conforming to Hricko’s instruction to use the van for commuting. It is not clear that Margerum’s use of the vehicle was exclusively for personal reasons. Therefore the trial court did not err in finding that by driving to his fiancee’s and planning to commute to work from her residence, Marge-rum did not substantially deviate from Hricko’s permission.

Nevertheless, the trial court erred in concluding that there was no substantial deviation from Hricko’s permission. By driving under the influence of alcohol, Margerum violated an express specific restriction on his use of the van. Hricko’s reiteration of the restriction the day before the accident indicates that the restriction was not inconsequential. This violation renders Exner inapplicable. Since Margerum violated an express specific restriction of Hricko’s permission to use the van, his deviation in use from Hricko’s express permission was a substantial deviation. As a result, Margerum is not an insured under General Accident’s policy with Hricko.

Judgment reversed. Jurisdiction relinquished.

      . General Accident failed to follow appropriate post-trial procedures pursuant to Pa.R.Civ.P. 1517. However since the order of the trial court does not comport with the procedural rule governing adjudication and does not suggest that General Accident must preserve its right of appeal, we excuse the failure to file exceptions. Storti v. Minnesota Mut. Life Ins. Co., 331 Pa.Super. 26, 479 A.2d 1061 (1984).

      . General Accident also argues the applicability of Donegal Mut. Ins. Co. v. Eyler, 360 Pa.Super. 89, 519 A.2d 1005 (1987). Although Donegal involves the extent of a permissive use, its holding is based on a permissive use clause excluding from coverage any person using the vehicle without a reasonable belief that he is entitled to do so. Based on this exclusion and evidence that the driver did not believe he was driving with permission, the Donegal court affirmed the trial court’s grant of summary judgment. Since the case sub judice involves a substantially different permissive use clause, we reject General Accident’s analogy.


author: HOFFMAN, Judge:

text:
    544 A.2d 965
    COMMONWEALTH of Pennsylvania v. Robert Franklin MOROCCO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 26, 1987.
    Filed June 8, 1988.
    Reargument Denied Aug. 5, 1988.

      Joseph B. Policicchio, Somerset, for appellant.
    James B. Yelovich, District Attorney, Somerset, for Com., appellee.
    Before WIEAND, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the order below denying appellant’s petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551. Appellant contends that trial counsel was ineffective for (1) proceeding to select a jury without appellant being present; (2) failing to move to suppress certain business records introduced by the Commonwealth; (3) failing to offer two letters into evidence; and (4) reporting ready for trial even though he had failed to verify the availability of an essential defense witness. For the reasons that follow, we vacate the order below and remand for a new trial.

On January 28, 1983, following a jury trial, appellant was found guilty of misapplication of entrusted property, 18 Pa.C.S.A. § 4113(a), and tampering with public records, id. § 4911(a)(1). Appellant was later sentenced to a five-year term of probation. The judgment of sentence was affirmed by this Court on May 17, 1985. See Commonwealth v. Morocco, 345 Pa.Super. 619, 496 A.2d 853 (1985). In 1986, appellant filed a pro se PCHA petition. Present counsel was appointed and on October 14, 1986, a hearing was held on the petition. On May 19, 1987, the court denied the petition, and this appeal followed.

On appeal, appellant raises four claims of ineffective assistance of trial counsel. The determination whether counsel rendered ineffective assistance is arrived at through a two-prong test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1982). Second, if appellant’s claim does have arguable merit, we must determine whether “the course chosen by counsel had some reasonable basis designed to serve the best interests of the client.” Commonwealth v. Buehl, supra (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967)).

If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel’s ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 976 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra. Under Strickland, to prove that counsel’s ineffectiveness resulted in prejudice, an appellant must show that the error was “so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.” Strickland v. Washington, supra at 686, 104 S.Ct. at 2063-2064.

Appellant first contends that counsel was ineffective for “failing to notify appellant of the time and place of jury selection, thereby causing appellant to be absent during said jury selection; and counsel was ineffective by proceeding to select a jury without the presence of appellant.” After carefully reviewing the record and the briefs submitted by the parties, we conclude that the PCHA court has properly disposed of this issue in its well-reasoned opinion.

Appellant next contends that trial counsel was ineffective for failing to move to suppress business records that were introduced by the Commonwealth. Appellant notes that, with regard to the tampering with public records charge, the Commonwealth’s theory was that certain expense vouchers that appellant submitted were for days on which internal agency records showed appellant to have been marked on vacation, on holiday, or simply “off”. To prove its theory, the Commonwealth, without objection by trial counsel, introduced semi-monthly time reports and cumulative leave reports that were maintained by the Somerset County Office on Aging. Appellant argues that these reports were not admissible as business records of the Agency because they were not “validated” by the agency. Because these documents did not qualify as business records, appellant contends, trial counsel was ineffective for failing to object to their admission. We disagree.

In this Commonwealth, the admissibility of business records is governed by statute. 42 Pa.C.S.A. § 6108(b) provides that,

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

Id. The purpose of this legislation is

to merely require that the basic integrity of the record keeping is established. Where it can be shown that the entries were made with sufficient contemporaneousness to assure accuracy and that they were made pursuant to the business practices and not influenced by the litigation in which they are being introduced, a sufficient indicia of reliability is provided to overcome their hearsay nature.

In re Estate of Indyk, 488 Pa. 567, 572, 413 A.2d 371, 373 (1979) (footnote omitted). “Whether a document should be admitted under the ‘business record’ exception is within the discretionary power of the trial court provided such is exercised within the bounds of [§ 6108].” Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Super. 333, 340, 455 A.2d 637, 640 (1982).

Appellant does not dispute that the semi-monthly reports and cumulative leave reports at issue here were made “in the regular course of business at or near the time of the act, condition or event” as required by § 6108(b). Instead, appellant invites us to conclude that, even if the records satisfy the § 6108 reliability test, they are rendered unreliable, and hence inadmissible, simply because the Agency, as an internal matter, seeks to further verify the information by use of “validation letters.” Appellant can cite no authority in support of this proposition, and we fail to see any reason why the absence of such a superfluous test should in any way impeach the reliability of a record made and kept in accordance with the standards outlined in § 6108. At best, the absence of the validation letters provided counsel with a basis to attack the weight that should be attached to these records. Accordingly, we agree with the PCHA court’s conclusion that these records were admissible. Because the records were admissible, we must conclude that appellant’s claim that trial counsel was ineffective for failing to object to their admission does not possess arguable merit, and appellant is not entitled to relief on this ground.

As a corollary to this argument, appellant also contends that counsel was ineffective for failing to call the former personnel officer of the Agency, Judy Dill, to testify. Appellant argues that “Mrs. Dill would have testified that Appellant was not sent a validation letter for [the] year 1981. Such testimony would have either had a direct bearing on the admissibility of the records as business records or would have attacked the accurateness of the same as being unaudited, unchecked and unverified records.” Brief of Appellant at 20. For the reasons we have noted in the text above, Mrs. Dill’s testimony regarding the validation letters would not have been relevant to a determination whether the records were admissible.

Moreover, we note that, at trial, both appellant and Anastasia Day, appellant’s administrative assistant, testified that the semi-monthly reports and cumulative annual leave reports were not likely to reflect accurately appellant’s attendance habits. For example, Mrs. Day testified as follows:

Q. Now, who are these [semi-monthly time] records set up to keep track of?
A. The employees of the Agency.
Q. Now, would they keep an accurate record of [appellant’s] whereabouts?
A. No.
Q. Why not?
A. Well, many times he was out of the office and they would have no way of knowing where he was. And they would just have no way to keep accurate records of that.

N.T. January 27, 1983 at 512. Thus, through the presentation of this type of testimony, trial counsel did “attack” the “accuracy” of the business records. We therefore agree with the PCHA court that “[t]he testimony of Judy Dill would have been merely cumulative to the testimony at trial regarding [the] method of preparation of the Agency’s records.” PCHA Court Opinion at 39-40. Accordingly, we hold that appellant’s claim that counsel was ineffective for' failing to call Mrs. Dill does not possess arguable merit, and appellant is not entitled to relief on this ground.

Appellant next contends that trial counsel was ineffective for failing to offer two letters into evidence. Appellant notes that, to prove the misapplication of entrusted property charge, the Commonwealth had to show that appellant disposed of property in a manner that appellant knew was unlawful. The charge derived from appellant’s alleged misuse of a travel account maintained by the Somerset County Office on Aging. Appellant was the Executive Director of that Office. The letters in question were written in December, 1981, by Richard Bronakoski, Field Representative of the State Department of Aging, and Terrence Spaar, Director of the Bureau of Administrative Services, and related to their investigation of the travel account. Appellant claims that “[t]he letters indicated that the State Department of Aging felt that the Somerset program was being properly administered; that any additional investigation by the Department was not necessary; and that, therefore, the manner in which the travel account had been administered by Appellant was proper.” Brief for Appellant at 27. Appellant argues that these letters were “admissible on the issue of whether or not he knew that the manner in which he administered the account was unlawful.” Id. Appellant concludes that counsel was ineffective for failing to introduce these letters to negate the knowledge element. We disagree.

The acts that formed the basis for the instant charges occurred before Bronakoski and Spaar conducted their investigation and wrote the disputed letters. Thus, as the Commonwealth correctly notes in its brief on appeal, “the letters cannot be probative on [the issue of appellant’s knowledge concerning the lawfulness of his actions]. The conduct for which [appellant] stands convicted occurred in the first half of 1981. The subject letters were not written until six months later. Therefore, the letters are completely irrelevant to [appellant’s] knowledge at the time of the acts charged.” Brief for Appellee at 6 (emphasis supplied). See also PCHA Court Opinion at 52 (“since the letters are dated in December, 1981, [appellant’s] state of mind theory of admissibility is inapplicable.”). We agree with the PCHA court and the Commonwealth that, because these letters were written after the criminal conduct at issue, they are not probative of appellant’s knowledge of the lawfulness of his conduct at the time he committed the acts. Because the letters would not be admissible under the theory proposed by appellant, appellant’s claim that counsel was ineffective for failing to introduce the letters lacks arguable merit, and appellant is not entitled to relief on this ground.

Appellant last contends that counsel was ineffective for reporting ready for trial even though he had failed to ascertain whether an essential defense witness would be available to testify at trial. This claim derives from counsel’s failure to timely subpoena County Commissioner Albert Hay to appear on appellant’s behalf. Appellant argues that Hay was “the single most important witness to [appellant]”, as trial counsel recognized, and thus counsel’s failure to assure Hay’s appearance constituted ineffective assistance. The facts related to this claim were summarized by the PCHA court as follows:

At the scheduling conference on January 12, 1983, trial counsel appeared and reported ready for trial. According to Somerset County Local Rules, such á report advises the court that the party and his witnesses are ready and available for trial. Trial counsel, however, had not checked with Commissioner Hay to determine whether he would be available or not____
Trial counsel further explained that he waited for the trial schedule to be published on January 13th or January 14th, before issuing subpoenas, so that the witnesses could be subpoenaed to appear on the date trial was to begin, rather than for attendance at the entire trial session beginning January 17th. As a result, subpoenas were not prepared until the week of January 17th, and, in fact, were not ready for service until Friday, January 21st____ [W]hen [appellant] attempted to serve Commissioner Hay-on Friday, January 21st, he found that Commissioner Hay was on vacation, outside the jurisdiction, and that he, therefore, would not be present for trial.
At the pretrial conference on January 24, trial counsel requested a continuance of the trial because of Commissioner Hay’s unavailability____

PCHA Court Opinion at 41-42. During that pretrial conference, the following exchange occurred between the court and defense counsel:

MR. BARB IN: .... I should have subpoenaed [Commissioner Hay] two months ago, so I was sure he would be here and I could have subpoenaed him for January 17th two months ago, but I didn’t.
sfs £ * sis *
THE COURT: If I had to resolve this motion on the basis of whether or not your witness is important to you, I really have insufficient knowledge of the case to evaluate your statement on that subject against [A.D.A.] Yelovich’s. And therefore, I would give the defendant the benefit of the doubt and I would grant your continuance.
The problem is, it’s difficult to accept your statement in light of the fact that you did nothing for weeks. You were notified in January — in fact you knew long before that; when you got a copy of the trial list even — that the trial would be the week of the 17th or the week of the 24th.
I have the schedule for last week in front of me. And on Wednesday at 1:30 the scheduling conference was scheduled. You got a copy of that schedule.
MR. BARB IN: Uh-huh.
THE COURT: It says: This conference is held for the purpose of assigning trial dates certain for each criminal case for trial at this term, and to facilitate advance jury selection. Accordingly, trial counsel in all such cases must be present to make a final report of trial readiness. BY BARBIN: I was present, Your Honor.
THE COURT: A readiness report means that trial counsel has made the necessary recent inquiries of parties and witnesses in advance so that the report will be reliable.
Now, that’s what we expected and that’s what we thought we got. I don’t see how you can justify waiting till Friday.

N.T. January 24, 1983 at 29-30. The trial court then denied appellant’s motion for continuance, based solely on defense counsel’s failure to discover Commissioner Hay’s unavailability until shortly before trial. The trial court’s ruling was approved without discussion by this Court on direct appeal. In that appeal, trial counsel’s effectiveness was not considered.

In ruling on appellant’s ineffectiveness claim, the PCHA court reviewed the continuance scenario as follows:

[Appellant] and trial counsel felt Commissioner Hay’s testimony to be crucial and so advised the court at the January 24th pretrial conference. The trial court refused the requested continuance, however, principally because of what the trial court perceived as trial counsel’s lack of diligence in preparing and serving the subpoena on Hay, and because trial counsel had advised the court at the January 12th scheduling conference that the defense was ready for trial.
We can not find that trial counsel was ineffective for waiting until Friday, January 21st, to subpoena witnesses. The record does not indicate exactly when Hay left for vacation and it is uncertain, therefore, exactly when service of the subpoena would have been effective. Who is to say under the circumstances of this case when a subpoena should be served.
We do agree, however, that the failure of trial counsel to confirm the availability of those defense witnesses he thought to be important, prior to the scheduling conference of January 12th, constitutes ineffectiveness of counsel. At that scheduling conference, trial counsel had represented to the court that the defense and witnesses were ready and available. We understand that trial counsel honestly believed that Commissioner Hay would be present; in order to advise the court of readiness, however, key witness[es]’ availability should be confirmed.
We also must find that failure to confirm the availability of the witness Hay had no reasonable basis in trial strategy.

PCHA Court Opinion at 44-45.

It seems readily apparent, therefore, that the PCHA court deemed counsel ineffective. Moreover, this finding is amply supported by the record facts set forth above. The defense request for a continuance of the trial had been denied solely because defense counsel advised the court that he was ready for trial when, in fact, counsel had not made a reasonable effort to ascertain whether defense witnesses were available. When counsel subsequently learned that Commissioner Hay was out of the jurisdiction and would not return in time for the trial, a defense request for continuance was made, but it was denied because of counsel’s lack of diligence. In light of these facts, we agree with the PCHA court that this claim of ineffective assistance possesses arguable merit. Moreover, we agree with the PCHA court that, under these circumstances, defense counsel’s lack of diligence had no reasonable basis designed to serve the best interests of his client.

Despite its finding that appellant’s claim possesses arguable merit and that counsel had no reasonable basis for his inaction, the PCHA court nevertheless concluded that appellant was not entitled to a new trial because he could not show that counsel’s dereliction prejudiced him. Specifically, the court reasoned that appellant could not show that he was prejudiced because that issue has already been finally litigated on appellant’s direct appeal. In reaching this conclusion, the court stated that “[w]hen deciding that the continuance was properly refused, the court en banc and Superior Court must have determined that Hay’s testimony was not so crucial that his absence denied [appellant] a fair trial.” PCHA Court Opinion at 46. We disagree. To be eligible for relief under the PCHA, a petitioner must prove, inter alia, “[t]hat the error resulting in his conviction and sentence has not been finally litigated____” 42 Pa.C.S.A. § 9543(4). An issue is finally litigated if, inter alia, “[t]he Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals.” Id. § 9544(a)(2). Moreover, “[tjhere is a rebuttable presumption that a failure to appeal a ruling ... is a knowing and understanding failure.” Id. § 9544(c). Finally, “[o]nce an issue has been finally litigated it may not be raised in a PCHA petition.” Commonwealth v. Senk, 496 Pa. 630, 635, 437 A.2d 1218, 1220 (1981) (plurality opinion).

Here, as we have noted above, the trial court refused to grant the request for a continuance solely because of trial counsel’s lack of diligence in ascertaining the availability of Commissioner Hay. That ruling was approved without discussion by this Court in an unpublished two-page Memorandum. At no time, did the trial court or the Superi- or Court on review determine that Commissioner Hay’s testimony was unimportant to the defense. We therefore hold that the question of the importance of Commissioner Hay’s testimony has not been finally litigated and, accordingly, the prior appeal to this Court cannot bar appellant from showing that he was prejudiced by counsel’s failure to secure Hay’s presence at trial.

Turning now to appellant’s specific argument regarding why Commissioner Hay’s testimony was essential to his case, it is apparent that appellant was seriously prejudiced by Hay’s unavailability. As recited in the opinion of the PCHA court, the absence of Commissioner Hay from the trial involving an alleged misuse of funds budgeted for the County Office on Aging rendered unavailable to the defense the following information:

Testimony regarding defendant’s work patterns, specifically, that Hay was aware that defendant worked late at night many nights and on holidays. Defendant claimed this testimony would lend credence to defendant’s testimony that he, in fact, was working on the holiday for which a suspect voucher had been submitted.
Testimony that there were no county guidelines for administration of finances at the County Office on Aging, that it was the Executive Director’s duty to make sure the funds were administered properly in accordance with state guidelines.
Testimony that the county requested the State Office on Aging to review the County Office’s records, and that, after review, County Commissioner Hay received a letter stating that there were no irregularities and that the books were in proper order in defendant’s office, according to the State’s representative.
* * * * * *
Testimony from Commissioner Hay that defendant had worked on projects other than for the Area Office on Aging and that defendant had spent money from the travel advances for these other activities which were properly vouchered and spent.
Testimony about the background of a meeting on June 30, 1981, at which the Commonwealth asserted defendant was told to close the subject account.
Testimony regarding accusations against defendant made by a certain former employee of the County Office o[n] Aging, Bernard Bruner, and that all except one of these accusations were disregarded by the Commissioners.
Testimony that Commissioner Hay had approved a budget line item for travel expenses for the County Office On Aging which amounted to $6,000.00 in 1981, which according to defendant, was very close to the amount of money actually spent.
Testimony regarding the suspension and termination of defendant since Commissioner Hay was the person who authored the suspension letter.

PCHA Court Opinion at 42-44 (footnote omitted). This testimony would provide important corroboration to appellant’s contention that he did not misuse the travel account in question. Accordingly, we conclude that appellant was prejudiced by his counsel’s lack of diligence in failing to secure the presence of Commissioner Hay at trial. See Commonwealth v. Pierce, supra.

To summarize, it appears that a trial continuance was denied because of trial counsel’s lack of diligence. That same lack of diligence required that appellant proceed to trial without the material testimony of Commissioner Hay, which may have resulted in a different verdict. A new trial is therefore required.

For the foregoing reasons, we vacate the order below and remand for a new trial.

Order vacated and case remanded for a new trial. Jurisdiction is relinquished.

      . At all times relevant to this appeal, appellant was the Executive Director of the Somerset County Office on Aging, and the charges against him related to his misuse of a travel account maintained by the Agency.

      . In his brief, appellant describes the "validation" process as follows: [T]he semi-monthly reports and the cumulative leave records were to be verified or validated at the end of the year by sending a letter of verification to each employee at the end of each year. If the employee did not object to the verification letter, then the information on the daily log, the semi-monthly report and the cumulative

        leave record would stand as to that employee and the records were "valid" records of the Agency as they related to that employee. If the employee objected to the verified letter, then the records were adjusted accordingly. Judith G. Dill, who was in charge of such verification process, testified at the PCHA hearing that no such letter of verification was sent to Appellant for year 1981---- Therefore, it is contended that the semi-monthly time reports and cumulative leave records submitted by the Commonwealth at trial were not verified or validated records of the Agency.
      Brief of Appellant at 18.

      . We emphasize that appellant’s argument is based not upon a defect in the creation of the semi-monthly reports and cumulative annual leave reports, but upon a defect in the procedure governing validation letters. Certainly, had the Commonwealth attempted to introduce validation letters that were not issued in accordance with Agency procedures, appellant’s argument might possess merit.

      . The relevant portion of 18 Pa.C.S.A. § 4113(a) provides as follows:

        § 4113. Misapplication of entrusted property and property of government or financial institutions
      (a) Offense defined. — A person commits an offense if he applies or disposes of property that has been entrusted to him as a fiduciary, or property of the government or of a financial institution, in a manner which he knows is unlawful and involves substantial risk of loss or detriment to the owner of the property or to a person for whose benefit the property was entrusted.

        Id § 4113(a).

      . We note that the issue of counsel’s ineffectiveness in occasioning the need to request a continuance was not raised in the direct appeal.

      . The PCHA court suggests that Commissioner Hay is now deceased. This fact should not affect appellant’s right to a new trial. Hay’s testimony at appellant’s preliminary hearing was recorded, and appellant may be able to use the same in lieu of the commissioner’s testimony upon a retrial.