text:
    667 A.2d 1151
    PENNSYLVANIA NATIONAL BANK & TRUST COMPANY, Appellant, v. CCNB BANK, N.A., Stanley D. Adler and Betty J. Adler, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1995.
    Filed Nov. 15, 1995.

      Stephen A. Moore, Harrisburg, for appellant.
    David C. Eaton, Harrisburg, for CCNB Bank, appellee.
    Before POPOVICH, SAYLOR and BROSKY, JJ.
   POPOVICH, Judge:

The case involves an appeal from the order of the Court of Common Pleas of Dauphin County granting a motion for summary judgment against the plaintifi/appellant, Pennsylvania National Bank & Trust Co. We affirm.

Initially, we observe that a motion for summary judgment may be entered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b). Also, in passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the non-moving party and must resolve all doubts against the moving party. Heil v. Brown, 443 Pa.Super. 502, 662 A.2d 669, 671 (1995). Lastly, we will not overturn an entry of summary judgment unless there has been an error of law or clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311, 1313 (1988).

Viewed in light of the aforementioned, the facts in this case are undisputed. It is only whether the defendant, CCNB, N.A., is entitled to judgment as a matter of law which is at issue. Because the facts are undisputed, those recounted by the court below are adopted by this Court; to-wit:

At the heart of this litigation is a $130,000.00 deposit made by defendant, Betty J. Adler, at an office of the defendant, CCNB Bank, N.A., (hereinafter “CCNB”). In recognition of this deposit, CCNB issued to Mrs. Adler a non-negotiable certificate of deposit (“CD”). This first CD was issued January 24,1990 with a maturity date of July 24, 1990.
Prior and subsequent to 1990, Stanley D. and Betty J. Adler were indebted to CCNB on various demand obligations. These obligations were consolidated on November 28, 1990 and a demand note was issued in the principal amount of $1,706,337.62. This note was in default as of February, 1991.
On June 22, 1990, the Adlers executed a demand promissory note in the amount of $130,000.00 in favor of plaintiff, Pennsylvania National Bank & Trust Company (hereinafter “PNB”). As collateral for this loan, Mrs. Adler pledged a security interest in the CCNB CD. She executed a collateral pledge agreement and assignment of certificate of deposit in favor of PNB on that date. On June 27, 1990, PNB took possession of the CD. No notice of this transaction was provided to CCNB at that time!
On July 24, 1990, the first CD matured. On that date a new non-negotiable fixed maturity CD was issued in the amount of $130,000.00. This second CD bore a maturity date of July 24, 1991. A new collateral pledge agreement and assignment form with respect to the “new” CD were executed by Mrs. Adler in favor of PNB at that time, but were not provided to CCNB until February 28, 1991. On that same date, CCNB executed the receipt portion of the successor assignment and returned it to PNB. At that time, CCNB placed an internal hold on the payment of the CD. Once again, PNB retained physical possession of the CD.
On July 24, 1991, upon maturity of the second CD, Mrs. Adler, accompanied by a representative of PNB, went to a CCNB branch office for the purpose of redeeming the CD. When CCNB refused to redeem the CD but was willing to issue a new CD bearing the endorsement of a notice of CCNB’s right of set-off, the transaction was refused by defendants [sic — plaintiff].
Subsequently, on August 5,1991, a third CD was issued in the principal amount of $130,000.00 bearing a maturity date of February 4, 1992. This third CD was garnered by a PNB representative, unaccompanied by either of the Adlers, and retained in the possession of the bank. Mrs. Adler executed a new collateral pledge agreement and assignment with respect to the newest CD.
Upon maturity of the third CD on February 4, 1992, PNB attempted to redeem the CD at a CCNB branch office. CCNB refused not only to redeem the CD, but also to issue a new CD. The paper evidencing the matured CD remains in the possession of PNB. CCNB has since applied the proceeds of the matured CD to reduce the Adlers’ indebtedness to CCNB.

Lower Court Opinion, 10/24/94, at 2-3 (Footnote omitted).

The primary issue in this case, which all concede is one of first impression, is whether Article 9 of the Uniform Commercial Code grants the plaintiffs perfected security interest in a certificate of deposit precedence over the defendant’s common law right of set-off against the same collateral held as security involving the same debtor/obligor/Adlers?

Initially, we observe that the right of set-off has long been recognized as part of the common law in Pennsylvania. See, e.g. Aarons v. Public Service Building & Loan Association, 318 Pa. 113, 178 A. 141 (1935), wherein a judgment creditor attached a depositor’s checking account before the bank exercised its right of set-off. Nonetheless, because the depositor’s debt to the bank had matured prior to the creditor’s attachment, our Supreme Court concluded that the bank could set-off the checking account balance against the money owed despite the intervening attachment. Also, the Court held that once the debt “matured,” the bank’s right of set-off extinguished the depositors rights in the account. Further, as herein relevant, the Court noted that the set-off arose by operation of law and the bank “was not required first to make book entries charging one account and crediting the other before asserting its right to priority.” Id. at 116, 178 A. at 142. Accord Duffy v. Fifty-Eighth & Chester Avenue Building & Loan Association, 325 Pa. 127, 189 A. 307 (1937); Adolph Bergman Building & Loan Association v. Blaul, 318 Pa. 126, 178 A. 140 (1935).

Aarons has been interpreted as “creating] a doctrine of automatic set-off in Pennsylvania.” Pittsburgh National Bank v. United States, 657 F.2d 36, 38 (3rd Cir.1981). This means:

Immediately upon the maturity of a debt owed by a depositor, the bank’s right to set-off, by operation of law, extinguishes the depositor’s rights to the account. Set-off is not overridden by the filing or service of attachment execution or garnishment. In effect, the garnishee-bank’s common law right to set-off gives it a right to self-help that takes priority over other creditors claiming a right to the funds on deposit.

Royal Bank of Pennsylvania v. Selig, 434 Pa.Super. 537, 644 A.2d 741, 744 (1994) (Citations omitted). And, the Uniform Commercial Code has been interpreted as not modifying or suspending that aspect of the common law granting “a bank ... a general lien upon or right of set-off against all money or funds in its possession belonging to a depositor to secure the payment of the depositor’s indebtedness to it....” Id. (Citation omitted). Nor has the Uniform Commercial Code been held applicable to set-offs, especially since Section 9104 excludes “any right of set-off’ from its coverage. 13 Pa.C.S.A. § 9104(9); see also Citibank (New York State), N.A. v. Interfirst Bank, 784 F.2d 619, 621 (5th Cir.1986); Republican Valley Bank v. Security State Bank, 229 Neb. 339, 426 N.W.2d 529, 531 (1988); but see Credit Alliance Corp. v. National Bank of Georgia, 718 F.Supp. 954 (N.D.Ga.1989); Citizens National Bank of Whitley County v. Mid-States Development Co., 177 Ind.App. 548, 380 N.E.2d 1243 (1978).

Consistent with the common law right of set-off in this Commonwealth, which is intact and not superseded by the adoption of the Uniform Commercial Code, we find that Article 9 of the Code does not dictate the analysis to be applied in deciding the priority scheme between a security interest and a set-off in the same collateral. Rather, we hold that where a debtor’s interest is amenable to set-off, the security interest is limited to the extent that the debtor’s obligation to the bank asserting set-off exceeds the value of the non-negotiable instrument (here the CD). Where, however, no asset remains to which the security interest may attach, the holder of the perfected security interest collects nothing.

Applying the preceding rationale here, we observe that the Adlers were indebted to CCNB, at the time the $130,000.00 CD was issued, in the amount of $1,706,337.52. See Affidavit of John J. Cosgrove, Assistant Vice-President of CCNB (“note no. 9202 on November 28, 1990, ... a demand obligation”). With the “demand obligation” exceeding the value of the CD held by CCNB, the Adlers’ obligation had matured. See Aarons, supra; Selig, supra; Answer with New Matter of CCNB Bank, N.A., to Plaintiffs Complaint, Paragraphs 17, 23-25, 29, 38, 50 & 52; and compare with In re Petragalia, 156 B.R. 474 (1993).

The fact that CCNB chose not to exercise the right of set-off at the time the Adlers’ debt exceeded the CD does not prejudice the bank’s right of set-off. “The bank’s right of set-off amounted to no more than an open-ended credit arrangement.” Pittsburgh National Bank v. United States, 498 F.Supp. 101, 104 (W.D.Pa.1980), aff'd, 657 F.2d 36 (3rd Cir. 1981). Therefore, the money on deposit with CCNB was under its sole control, which permitted it, at anytime, without notice to terminate this credit arrangement. And, because the Adlers’ obligation to CCNB was evidenced by a “demand” note, CCNB’s lien (by operation of law) automatically extinguished the Adlers’ right to the CD.

At no time since the indebtedness matured could the Adlers have compelled CCNB under state law to deliver any of the CD money to them. Id. Thus, the Adlers had no property right in the account, and there was nothing to which their creditor/Pennsylvania National Bank & Trust Co. could claim an interest. Id. Accordingly, the Adlers’ execution of a promissory note, collateral pledge agreement and assignment neither created nor transferred any interest (legal or equitable) in the CD issued by CCNB once the Adlers’ indebtedness exceeded the value of the CD. Aarons, supra; Selig, supra; Pittsburgh National Bank, supra. This imbalance existed prior to CCNB learning of the claimed interest of the appellant in the CD. Consequently, the appellant took nothing with the Adlers’ security agreements professing a security interest in the CD.

As a result, finding no merit to any of the appellant’s arguments proffered on appeal, we affirm summary judgment in favor of CCNB.

Order affirmed.

SAYLOR, J., concurs in the result.

      . See Appellant's Brief at 13; Defendant’s Brief at 2.

      . During the course of litigation, CCNB Bank, N.A., has been succeeded in interest by PNC Bank, N.A. However, for consistency purposes, the defendant shall continue to be referred to as CCNB.

      . The appellant asks this Court to adopt the "equitable” or "Texas” rule as presented in Republican Valley Bank v. Security State Bank, 426 N.W.2d 529, 229 Neb. 339 (1988) and Citibank (New York State) N.A. v. Interfirst Bank of Wichita Falls, N.A., 784 F.2d 619 (5th Cir.1986), neither of which recognizes the applicability of Article 9 of the Uniform Commercial Code to transactions involving a right of set-off.
      Inasmuch as "right of set-off” is still viable in this Commonwealth, we see no need to venture to other jurisdictions to secure alternative theories to resolve the priority question posed here for our consideration. See Aarons v. Public Service Building & Loan Association, 318 Pa. 113, 178 A. 141 (1935).


source: Caselaw Access Project

author: ROWLEY, President Judge: CERCONE, Judge,

license: Public Domain

text:
    667 A.2d 1155
    Gloria Rich CURRAN v. John J. CURRAN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 27, 1995.
    Filed Nov. 22, 1995.

      Ellen G. Weiner, Philadelphia, for appellant.
    J. Robert Zane, Schuylkill Haven, for appellee.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   ROWLEY, President Judge:

This is an appeal from the December 22, 1994 order of the Court of Common Pleas of Schuylkill County. We affirm.

John J. Curran, appellant, filed a Complaint in Divorce in Carbon County. Gloria Rich Curran, appellee, filed a Complaint in Divorce in Schuylkill County. Appellant filed a petition for bifurcation which was subsequently withdrawn. Appellee then filed a petition for bifurcation. A hearing was held on the issue of venue and bifurcation, and the trial court determined that venue was appropriate in Schuylkill County. The Carbon County action was consolidated with the Schuylkill County action. No ruling was made on the issue of bifurcation. The order concerning venue was appealed by appellant to this Court. Venue was affirmed. A petition for reargument before this Court en banc was filed and denied. A Petition for Allowance of Appeal to the Supreme Court was filed and denied. On November 30, 1994, the trial court entered an order granting the petition for bifurcation. On December 22, 1994, a bifurcated divorce decree was entered. This timely appeal followed.

Initially we must determine whether the bifurcated decree of divorce entered here is “final”, thus conferring jurisdiction on the Court to entertain and decide the issues presented. Pa.R.A.P. 341 might suggest that a decree of divorce, following an order for bifurcation, is not a final order since there are outstanding economic claims between the parties which remain unresolved. Additionally, one might argue that it is not a final order because it is not expressly defined as such by statute. However, we hold that in deciding whether a decree of divorce entered pursuant to an order for bifurcation is a final order, it is necessary to examine the ramifications of the order. In Flowers v. Flowers, 417 Pa.Super. 528, 612 A.2d 1064 (1992), this Court concluded that an order denying a motion to vacate a decree of divorce would be a final order because “it effectively puts a defendant ‘out of court’ on both the question of the right of the former spouses to remarry or their right to make an effective will which designates a third party as legatee regarding their interests in property originally held by the entireties.” Id. at 531, 612 A.2d at 1065 (citation omitted). Analogously, a decree of divorce following an order for bifurcation is a final order because its ramifications are the same.

Furthermore, it is well established that “[i]n interpreting any statute, the legislative intent behind the enactment of the statute controls its ultimate meaning and application.” DeLellis v. Borough of Verona, 541 Pa. 3, 10, 660 A.2d 25, 28 (1995) (citations omitted). The legislative intent of the Divorce Code is to “effectuate economic justice between parties who are divorced or separated....” 23 Pa.C.S. § 3102(a)(6).

It is well established that the Divorce Code permits the severance of divorce claims from economic claims.
In the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master’s report has been filed, it may enter a decree of divorce or annulment.
Moreover, the Pennsylvania Rules of Civil Procedure provide the court with discretion and latitude in dealing with the economic aspects of the divorce proceeding.

Fenstermaker v. Fenstermaker, 348 Pa.Super. 237, 249, 502 A.2d 185, 191 (1985) (emphasis in original) (citation omitted).

Pursuant to statute, the court is empowered in all matrimonial causes to do one of the following: (a) dismiss the complaint, (b) enter a decree of divorce, or (c) enter a decree of annulment of the marriage. 23 Pa.C.S. § 3323(a). The court can also enter an order for bifurcation when it is not possible to determine and dispose of the matters provided for in 23 Pa.C.S. § 3323(b). Once the court determines that it is necessary to separate the granting of a divorce from the resolution of the economic claims, as in the instant case, “it may enter a decree of divorce or annulment ... and may make a temporary order necessary to protect the interests of the parties pending final, disposition of the matters in subsection (b).” 23 Pa.C.S. § 3323(c)(emphasis supplied). No distinction is made between section 3323(a) and (c) regarding the status to be afforded to the decree which the court may enter.

The Divorce Code makes no distinction between a divorce decree entered pursuant to subsection (a) or (c) in terms of the rights that follow from the entry of a decree of divorce. 23 Pa.C.S. § 3331 provides for certain limitations on attacks upon the validity of a decree of divorce or annulment. 23 Pa.C.S. § 3332 addresses the issue of opening or vacating a decree of divorce or annulment. 23 Pa.C.S. § 3333 provides that the validity of a divorce or annulment decree cannot be attacked unless it is established by clear and convincing evidence that fraud by the other party prevented the taking of a timely appeal from the divorce or annulment decree. Likewise, the Pennsylvania Rules of Civil Procedure do not make any distinction between a decree of divorce entered pursuant to section 3323(a) or (c). See Pa.R.C.P. 1920.52(a)(4) and (d); 1920.55(c); and 1930.2(a) and (b).

If a divorce decree entered following a bifurcation order is not a final order, this would vitiate the purpose of bifurcation which is to separate the divorce claim and the economic claims of the parties. See Jawork v. Jawork, 378 Pa.Super. 89, 548 A.2d 290 (1988). The severance of the divorce and economic claims furthers the goals of the Divorce Code so that the parties’ personal lives will not be held hostage to economic disputes. Taylor v. Taylor, 349 Pa.Super. 423, 503 A.2d 439 (1986). Therefore, we hold that a decree of divorce that is entered after an order has been entered severing the economic issues from the action for divorce is final for purposes of appeal and this Court has jurisdiction to decide the divorce issues raised.

Appellant raises the following issues for our consideration:

(1) Did the trial court abuse its discretion in entering a bifurcated divorce decree?
(2) Did the trial court abuse its discretion in determining the Appellee, Mrs. Curran, demonstrated that there were advantages to a bifurcated divorce decree?
(3) Did the trial court abuse its discretion in failing to give proper consideration to the substantial disadvantages created by a bifurcated decree?

After having reviewed the record, the relevant case law, and the parties’ briefs, we conclude that the opinion authored by the Honorable William W. Lipsitt has carefully and properly disposed of Appellant’s issues on appeal. Accordingly, we rely upon the opinion authored by Judge Lipsitt.

Decree of divorce affirmed. Jurisdiction relinquished.

CERCONE, J., files a dissenting opinion.

CERCONE, Judge,

dissenting.

I dissent from the majority’s determination that the order appealed from is a final one. Since the enactment of the new Rule 341 of the Rules of Appellate Procedure, final orders have been defined as follows:

(b) Definition of final order. A final order is any order that:
(1) disposes of all claims or of all parties; or
(2) any order that is expressly defined as a final order by statute; or
(3) any order entered as a final order pursuant to subsection (c) of this rule.
(c) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims or parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all of the claims or parties shall not constitute a final order.

Pa.R.A.P., Rule 341(b) and (c), 42 Pa.C.S.A. (Supp.1995).

In the instant case, the economic claims of the parties have not yet been adjudicated. Thus, the order appealed from does not dispose of all of the claims pertinent to this action. Id., Rule 341(b). In addition, the trial court has not determined that an immediate appeal of the order would facilitate resolution of the entire case. Id., Rule 341(c). The reasons given by the majority for the conclusion that the order is “final” are based on the type of reasoning employed under the former Rule 341 to determine the finality of an order. Since the present Rule 341 explicitly defines a final order, this type of analysis is inapplicable.

Because I do not believe that the order appealed from constitutes a final order as presently defined in Rule 341, I would quash the appeal.

      . RULE 341. FINAL ORDERS; GENERALLY
      (a) General Rule. Except as prescribed in subdivisions (d), and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court.
      (b) Definition of Final Order. A final order is any order that:
      (1) disposes of all claims or of all parties; or
      (2) any order that is expressly defined as a final order by statute; or
      (3) any order entered as a final order pursuant to subsection (c) of this rule.
      (c) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims or parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims or parties shall not constitute a final order.. . .
      Pa.R.A.P. 341.

      . We cannot ignore the legislative intent of the Divorce Code and hold that because Flowers was decided prior to Pa.R.A.P. 341, as amended, it no longer has application. We find no indication that the concept of a decree of divorce entered pursuant to a bifurcation order has been abrogated.

      . In subsection (c) however, we find the word "temporary” which qualifies the range of orders which the court can order to protect the parties' interests so defined in subsection (b). The word “final” is used with reference to the disposition of the outstanding claims pursuant to subsection (b). From the absence of any qualifying terms in reference to the phrase "decree of divorce” in subsections (a) and (c), it is clear that the same final status is afforded to both decrees, notwithstanding the unresolved claims pursuant to subsection (b). When a court attempts to ascertain the meaning of language within a statute, its goal is to effectuate the intent of the Legislature. Frontini v. Commonwealth Dept. of Trans., 527 Pa. 448, 593 A.2d 410 (1991).

      . Pa.R.A.P., Rule 341, 42 Pa.C.S.A. (Supp.1995).

      . Pa.R.A.P., Rule 341, 42 Pa.C.S.A. Former Rule 341 provided in pertinent part:
      (a) General Rule. Except as prescribed in Subdivisions (b) and (c) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court.

        Id.

      . Another reason exists in favor of quashing this appeal. The lower court granted wife's (appellee's) petition to bifurcate on November 30, 1994. Husband (appellant) did not immediately file an appeal of this order, but rather waited until the decree of divorce was entered before filing his notice of appeal on January 17, 1995. Since appellant essentially is challenging the correctness of the lower court’s decision to allow bifurcation, appellant should have filed a notice of appeal within thirty days of the November 30, 1994 order. Thus, the present appeal is untimely and for that reason also, the appeal should be quashed.


author: POPOVICH, Judge:

text:
    667 A.2d 1158
    COMMONWEALTH of Pennsylvania, Appellee, v. Timothy A. LATEEF, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 10, 1995.
    Filed Nov. 29, 1995.

      John J. Dean, Public Defender, Pittsburgh, for appellant.
    Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CIRILLO, POPOVICH and OLSZEWSKI, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County on August 22, 1994, following appellant’s conviction on charges of possession with intent to deliver a controlled substance and possession of a controlled substance. Appellant was sentenced to three to ten years imprisonment and a $15,000 fine. Appellant presents this court with the following two issues: Were police justified in frisking appellant, and, if so, did police exceed the scope of a Terry search by reaching into appellant’s pockets in the absence of testimony that the officer believed the bulge felt like a weapon or contraband.

Upon review, we find that the officer did exceed the scope of the permissible pat-down search since the officer was unable to recall whether the bulge felt like a weapon or contraband. Accordingly, we reverse the judgment of sentence and remand for a new trial consistent with the provisions herein.

The facts of this case are as follows: On June 27, 1992, at approximately 9:10 p.m., a confidential informant contacted Detective Kenneth Cole of the Monroeville Police Department and stated that within the past three to five minutes he saw a grey Volkswagen GTI, bearing Pennsylvania registration RAN677, occupied by three individuals trafficking in cocaine. The informant told Detective Cole that he personally witnessed these individuals possessing crack cocaine in a house in Turtle Creek. He described the driver of the vehicle as a black male with a moustache, weighing 160-165 pounds and approximately 30 years of age. He described the rear passenger as a black male, about six-foot, wearing a dirty white/grey hooded sweatshirt. Appellant was positioned in the right front passenger seat. The informant claimed that the occupants of this vehicle possessed approximately one ounce of crack cocaine.

Detective Cole had personal knowledge of the informant’s reliability. The informant had provided accurate information directly to Detective Cole on two prior occasions. Further, Detective Rickie Bauers from the Shaler Police Department had previously told Detective Cole that the confidential informant had furnished information to Allegheny County narcotic detectives on at least 20 cases which resulted in successful prosecutions.

Detective Cole was off duty when the informant called, so he relayed the information to Detective Polnar of the Monroe-ville Police Department. Detective Polnar proceeded to broadcast the information on the police radio channels. At 9:30 p.m., Officer David Brown radioed that he was following a vehicle matching the description. Officer Brown stopped the vehicle, and moments later Detective Polnar arrived. At that time, Officer Brown and another officer had their weapons drawn with appellant and the two other suspects secured in the vehicle.

Pat-down searches of the driver of the vehicle and the rear passenger revealed no weapons or contraband. Detective Polnar performed a pat-down search of appellant and felt a bulge in his pocket. At the suppression hearing, he testified that “for his safety” he searched appellant, and he retrieved $70.00 in assorted currency and a small plastic bag containing a white crystalline substance from appellant’s left front pocket, $244.00 in assorted currency from appellant’s right front pocket, and $1,110.00 in assorted currency from his right rear pocket.

Appellant was then given his Miranda warnings and interviewed by police. During the interview, an additional bag containing a white crystalline substance was seized from the front of appellant’s waistband as well as a pager watch. The Allegheny County Crime Lab tested the bags of white crystalline substance found on appellant. Both tested positive for the presence of cocaine base.

When reviewing the denial of a motion to suppress, this court must:

determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).

Commonwealth v. Ariondo, 397 Pa.Super. 364, 366-369, 580 A.2d 341, 342-343 (1990), quoting Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989).

Appellant does not dispute that the informant gave sufficiently reliable information to justify the stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, he contends that the police lacked reasonable suspicion that he was armed and dangerous to justify a pat-down search. If the police did have sufficient reasonable suspicion to justify the frisk, appellant claims that the scope was unlawfully exceeded.

First, we will address whether police had sufficient reasonable suspicion to justify a Terry frisk. In Terry, the United States Supreme Court granted authority to police officers to pat down or frisk a suspect for weapons based only upon the reasonable belief that criminal activity is afoot, and that the suspect may be armed and dangerous. Commonwealth v. Canning, 402 Pa.Super. 438, 587 A.2d 330, 331 (1991) (citing Terry, supra at 27, 88 S.Ct. at 1883). The officer must be able to articulate specific facts which would justify the belief that the suspect may be armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979).

Upon review, we find that the trial court was correct in concluding that reasonable suspicion existed to warrant a Terry stop and search. In this case, a reliable informant contacted Detective Cole within five minutes of personally seeing narcotics. He stated the number of occupants within the vehicle, described two of the occupants and gave the make and license plate number of the vehicle wherein the cocaine was transported. He informed the officer of the nature and amount of narcotics involved. Police observed the vehicle and its occupants in the predicted area within a matter of minutes.

Given that the suspects allegedly possessed narcotics, officers were correct in anticipating the possibility that the suspects might be armed and dangerous. In Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991), this court acknowledged the possible danger and violence inherent in the possession and distribution of narcotics. Thus, having been informed that the suspects possessed narcotics, the officers had reasonable suspicion that they might be armed and dangerous, warranting a Terry stop and subsequent pat-down for their protection.

We will now analyze whether the officers exceeded the lawful scope of the Terry frisk. The scope of such a frisk is limited “to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Canning, supra 587 A.2d at 331 (citing Terry, supra at 29, 88 S.Ct. at 1884). Further, recent caselaw has created what has been termed the “plain feel” exception to the warrant requirement. The United States Supreme Court held in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) that “[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons, if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.” In Interest of S.D., 429 Pa.Super. 576, 633 A.2d 172, 175 (1993) (quoting Dickerson, supra, 508 U.S. at 375-76, 113 S.Ct. at 2137).

Since Dickerson, this court has had two opportunities to define the applicability of the “plain feel” exception. In Commonwealth v. Johnson, 429 Pa.Super. 158, 631 A.2d 1335 (1993), the “plain feel” exception applied because the “contour or mass” of the object felt during a valid Terry frisk made it immediately apparent to the officer that it was contraband. In Interest of S.D., supra, this court found no evidence to validate the police intrusion into the suspect’s pocket to retrieve vials of cocaine. Id., 633 A.2d at 176. The court was not convinced that the identity of the item seized was readily apparent to the officer as a weapon or contraband. The officer testified that he “felt a bulge in [the suspect’s] right pants pocket”, but never indicated what he thought the bulge was. Id. The court concluded that without such testimony, they could not conclude that the officer thought the bulge was either a weapon or contraband and thus, the evidence was suppressed. Id.

Applying Terry and Dickerson to the case before this court, we find that the police exceeded their lawful authority by reaching into appellant’s pockets during the Terry frisk. The testimony from the officer performing the pat-down was as follows:

Q: Now, when you say you did a pat-down of Mr. Láteef, you felt a bulge, what kind of bulge did you feel?
A: I don’t recall.
Q: You don’t recall? When you reached into the pocket what did you find?
A: A wad of money.
Q: Okay. Was the money rolled up in a big ball or folded over in a nice, neat little stack?
A: I don’t recall.
Q: What did the bulge feel like to you? Did it feel like a gun, feel sharp and pointy like a knife?
A: I don’t recall what it felt like at that point, no.
Q: It felt like money rolled up?
A: I don’t recall.
Q: How about when you checked the other pockets where you found the — you say you found the narcotics in one pocket, how did that feel?
A: I’m trying to go back in my mind. I just don’t recall what they felt like at that time.
Q: Was it packaged in a plastic bag?
A: I believe it was.
Q: When you patted the pocket down could you hear the bag crunch or squish or do anything?
A: I don’t recall whether I could or not.
Q: About how big was the bulge? This size, this size, this size, the size of a golf ball, softball, peanut?
A: I don’t recall.
Q: Didn’t feel like a weapon, though, did it?
A: I don’t recall, sir, I can’t say.

N.T. 20-21.

As seen above, the officer could not recall what he thought he felt in appellant’s pockets. In fact, he could not recall any facts concerning the frisk of appellant or his reasons for removing the items in question from appellant’s pockets. The facts of the present case are nearly identical to those in In Interest of S.D., supra. Both cases involve a Terry frisk where the officer retrieved evidence from the suspects pocket yet was unable to give testimony at trial regarding what the object felt like. In light of the foregoing testimony, or lack thereof, this court finds that the officer’s search of appellant’s pockets was not justified by Terry as a seizure of a weapon, nor by Dickerson as seizure of cognizable contraband. We must conclude that the officer exceeded the legal boundaries of a permissible pat-down absent testimony that the officer felt a weapon or contraband in appellant’s pockets. Consequently, due to the illegal search, the fruits that arose therefrom, the currency and cocaine, must be suppressed. In Interest of S.D., supra; Commonwealth v. Agnew, 411 Pa.Super. 63, 600 A.2d 1265, 1274 (1991).

Accordingly, we reverse the judgment of sentence and remand for a new trial consistent with this opinion.

      . We note that the Pennsylvania Commission on Sentencing Guideline Sentence Form signed by Judge Dauer states appellant's sentence as three (3) to six (6) months imprisonment and a $15,000 fine.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . The Commonwealth argues in its brief that based on the informant’s tip, there was probable cause to arrest appellant at the time they searched him. Thus, a valid search incident to a lawful arrest ensued. Probable cause necessary for a warrantless arrest is established when the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to conclude that the suspect has or is committing a crime. Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988, 990 (1991). In the present case, police stopped a vehicle pursuant to a confidential tip which described two of the three occupants of the suspect vehicle. The undescribed occupant was appellant. Therefore, it can not be asserted that police had probable cause to arrest appellant when ihey had no information regarding him specifically. Hence, the Commonwealth’s argument, which was not even advanced until this appeal, is without merit.


author: HUDOCK, Judge:

text:
    667 A.2d 1163
    HOWLAND, HESS, GUINAN & TORPEY, Appellee, v. Susan PERZEL, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1995.
    Filed Nov. 29, 1995.

      Bruce S. Marks, Philadelphia, for appellant.
    John R. Howland, Huntingdon Valley, for appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

Susan Perzel appeals from the trial court’s order denying her petition to reinstate the appeal from a judgment of the District Justice. We affirm.

The facts and procedural history giving rise to this appeal are as follows: Appellee, the law firm of Howland, Hess, Guinan & Torpey (Howland), filed a complaint with the District Justice, James B. Hunter, against Appellant, Susan Perzel (Perzel), to recover unpaid legal fees. After a hearing the District Justice entered a judgment on August 23, 1994 in favor of Howland for $2,899.65 plus costs. Perzel filed a timely notice of appeal from this judgment with the Court of Common Pleas of Montgomery County on September 5, 1994. Perzel, however, failed to file proof of service of the notice of appeal on Howland and the District Justice within ten days as required by Pa.R.C.P.D.J. 1005 B. Perzel also failed to send a copy of the notice of appeal to the District Justice as required by Pa.R.C.P.D.J. 1005 A. Perzel mailed the notice of appeal to the Montgomery County Courthouse despite the fact that the District Justice’s office was not located in the courthouse. Furthermore, Perzel failed to identify District Justice James B. Hunter as the correct addressee on the envelope containing the notice of appeal.

On October 5, 1994, Howland filed a praecipe to strike the appeal pursuant to Pa.R:C.P.D.J. 1006. Perzel’s attorney received the praecipe via certified mail on October 11, 1994. On October 31, 1994, Perzel’s attorney telephoned Howland’s counsel to ascertain the legal grounds for Howland’s praecipe. Howland’s attorney indicated that Pa.R.C.P.D.J. 1005 and 1006 provided the legal basis for such praecipe. Perzel’s attorney took no further action until December 1, 1994 when he received notice that Howland transferred the judgment to the Court of Common Pleas of Philadelphia County. Perzel filed a “Petition to Reopen Case and Stay Judgment” on December 12, 1994 with the Court of Common Pleas of Montgomery County. On January 6, 1995, Howland filed an answer to this petition which the court treated as a petition to reinstate the appeal. After oral argument the court denied Perzel’s petition to reinstate the appeal on January 17, 1995. Perzel sought reconsideration of that order which was also denied on February 6, 1995. Perzel then filed a timely notice of appeal to this Court.

Perzel raises one issue for our review: Did the lower court err when it refused to reinstate her appeal? Perzel alleges that she demonstrated good cause for her failure to comply with the procedural rules and thus the trial court should have excused her minor procedural default and reinstated her appeal. We cannot agree.

Pa.R.C.P.D.J. 1005 provides in pertinent part:

RULE 1005. SERVICE OF NOTICE OF APPEAL AND OTHER PAPERS.
A. The appellant shall by personal service or by certified or registered mail serve a copy of his notice of appeal upon the appellee and upon the district justice in whose office the judgment was rendered.
B. The appellant shall file with the prothonotary proof of service of copies of his notice of appeal, and proof of service of a rule upon the appellee to file a complaint if required to request such a rule by Rule 1004B, within ten (10) days after filing the notice of appeal.

Pa.R.C.P.D.J. 1005 A & B, 42 Pa.C.S.A.

The official Note to Rule 1005 B makes it clear that the appellant is not required to attach a return receipt to the proof of service. The appellant is only required to attach a sender’s receipt to the proof of service if service was made via certified or registered mail. See Voland v. Gray, 438 Pa.Super. 525, 526, 652 A.2d 935, 936 (1995) (it is not necessary to attach green return receipt card to proof of service).

Pa.R.C.P.D.J. 1006 offers the court a discretionary remedy if a party fails to comply with Rule 1005 B. Anderson v. Centennial Homes, Inc., 406 Pa.Super. 513, 517, 594 A.2d 737, 739 (1991). It provides:

RULE 1006 STRIKING APPEAL
Upon failure of the appellant to comply with Rule 1004A or Rule 1005B, the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record. The court of common pleas may reinstate the appeal upon good cause shown.

Pa.R.C.P.D.J. 1006. The official Note to Rule 1006 specifies that: “This rule is intended to provide sanctions for failing to act within the time limits prescribed.” Rule 1006 does not define what constitutes “good cause.” However, our courts have interpreted this to require the appellant to proffer a legally sufficient reason for reinstating the appeal. Slaughter v. Allied Heating, 431 Pa.Super. 348, 350, 636 A.2d 1121, 1123 (1993), alloc. den., 539 Pa. 669, 652 A.2d 839 (1995).

The trial court exercises its discretion when determining if the' appellant has demonstrated “good cause.” Id. This Court has reinstated an appeal from a district justice’s judgment if the trial court erroneously concluded that the appellant did not demonstrate “good cause.” Voland v. Gray, 438 Pa.Super. at 526, 652 A.2d at 936.

The trial court found that Perzel failed to comply with two essential procedural rules and failed to demonstrate “good cause” for her noncompliance. First, Perzel failed to send a copy of the notice of appeal to the District Justice, James B. Hunter. Perzel admits that she sent the notice of appeal to the incorrect address. Perzel sent the notice to the address of the Montgomery County Courthouse and she failed to identify James B. Hunter as the correct addressee. Perzel never explained why she sent the notice of appeal to the incorrect address. Furthermore, when she received the return receipt card, it was signed by a mailman at the Montgomery County Courthouse, J. Carpani, Jr. The return receipt did not indicate that the District Justice received the notice of appeal.

Secondly, Perzel failed to file proof of service that she sent the notice of appeal to Howland and the District Justice. Perzel claimed that she failed to file the proof of service within the requisite ten day period because the secretary working for her counsel mistakenly assumed that the return receipt card must be attached to the proof of service. Perzel claims that this procedural error must be excused pursuant to this Court’s recent decision in Voland v. Gray, supra. In Voland, this Court reversed the trial court’s order denying the appellant’s petition to reinstate his appeal. The appellant filed the proof of service required by Rule 1005B twenty days late because of his mistaken belief that the green return receipt card evidencing service of the notice of appeal must be attached to the proof of service. The court found that this was a legitimate excuse for the untimely filing and thus excused the minor technical default. The court noted, however, that the appellees and the district court received timely notice of the appellant’s appeal. Voland, 438 Pa.Super. at 526, 652 A.2d at 936. In the present case, the District Justice did not receive any notice of Perzel’s appeal. One of the intended purposes of Rule 1005 B is to notify the District Justice of the appeal since the appeal operates as a supersedeas and prevents the prevailing party from executing on the judgment. Slaughter v. Allied Heating, 431 Pa.Super. at 352, 636 A.2d at 1124. District Justice James B. Hunter was never notified in the present case that Perzel filed an appeal, thus staying the $2,899.65 judgment in Howland’s favor pending appeal. Perzel’s procedural error is more egregious than the appellant’s in Voland and in other cases where this Court has excused an untimely filing of the proof of service. See Quarato v. Facelifters, Ltd., 305 Pa.Super. 536, 538-39, 451 A.2d 777, 778 (1982) (defendant’s failure to comply with Rule 1005 B was disregarded where the defendant failed to timely file the proofs of service but there was evidence that the plaintiff had received actual notice of the appeal within the requisite time period). Unlike these cases, Perzel did more than fail to timely file a proof of service — she failed to effect service in the first place. Under these circumstances, we do not find that this Court’s decision in Voland dictates that we reinstate Perzel’s appeal. Nor do we find that the trial court abused its discretion when deciding that Perzel failed to show “gciod cause” for reinstating her appeal. Accord Slaughter v. Allied Heating, 431 Pa.Super. at 354, 636 A.2d at 1125 (“an unspecific allegation that [appellant’s] failure to comply with Rule 1005B was attributable to ‘inadvertent error’ is insufficient to show good cause.”); Anderson v. Centennial Homes, Inc., 406 Pa.Super. at 518, 594 A.2d at 740 (appellant’s failure to offer any explanation for failure to file proof of service will not constitute “good cause”).

Order affirmed.

      . We note that Pa.R.C.P. 126 allows the court to "disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Pa.R.C.P. 126. However, it is not an abuse of discretion for the trial court to enforce the rules of civil procedure and refuse to grant liberal construction of the rules of procedure. Paden v. Baker Concrete Construction, Inc., 540 Pa. 409, 658 A.2d 341 (1995).


author: TAMILIA, Judge:

text:
    667 A.2d 1166
    COMMONWEALTH of Pennsylvania v. Vincent FANASE, Appellant. COMMONWEALTH of Pennsylvania, Appellant, v. Vincent FANASE.
    Superior Court of Pennsylvania.
    Argued & Submitted Oct. 10, 1995.
    Filed Nov. 30, 1995.

      Lester Crawford, Bethel Park, for Vincent Fanase.
    Russell Broman, Assistant District Attorney, Pittsburgh, for Commonwealth.
    Before ROWLEY, President Judge, and TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This case presents cross-appeals from the February 26, 1992 judgment of sentence imposing upon Vincent Fanase a term of imprisonment of three (3) to seven (7) years. Following a jury trial, Fanase was convicted of burglary, receiving stolen property and criminal conspiracy. Also, at sentencing, Fanase pled guilty to two separate offenses and received an additional two (2) to four (4) year concurrent sentence. The Commonwealth appeals from the reinstatement of Fanase’s appellate rights and Fanase appeals from the denial of his claims under the Post Conviction Relief Act. The facts and procedural history of this case are as follows.

On July 2, 1990 at approximately 10:15 p.m., a home at 601 Berkshire Avenue in Brookline was burglarized. During the burglary, a neighbor, Francis Monaghan, noticed a blue Chevy Celebrity station wagon parked in an alley behind the residence with an individual in the driver’s seat. After watching the car for 45 minutes, Mr. Monaghan became suspicious and approached the car. Mr. Monaghan then walked past the car at a distance of approximately twelve feet, with the sole purpose to observe the driver, and “looked right at his face.” (N.T., 12/10/91, p. 86.) At trial, Mr. Monaghan identified Fanase as the car’s driver. Following the walk-by, Mr. Monaghan returned to his porch, approximately 50 feet from the car, and continued to watch Fanase. Fanase then moved his car to the rear of 601 Berkshire Avenue whereupon Mr. Monaghan observed a white male open the tailgate and a black male carry items from the residence and place them in Fanase’s car.

Mr. Monaghan called 911 and reported the license number of Fanase’s car. He then proceeded to follow Fanase and his accomplice, in his own vehicle, until he lost the car in Dormont. Based on the license number provided by Monaghan, Pittsburgh Police proceeded to Fanase’s residence, where they found the blue Celebrity matching the description and license number parked in the driveway. Officers also noticed, at 11:30 p.m., that the hood of the car was hot, indicating that it had been driven recently. Subsequently, Mr. Monaghan identified Fanase from a police photo array immediately and without hesitation. A warrant was thereafter issued and, on July 13, 1990, Fanase was arrested and charged with the aforementioned offenses. ..Also, on April 30 and August 22, 1991, respectively, Fanase was charged with two separate counts of receiving stolen property.

Trial on the charges of July 13th was held between December 9 and 11, 1991, and Fanase’s wife, Yvonne, testified on direct examination that on July 2nd, the night of the burglary, Fanase came home from work, removed his artificial leg, ate dinner and “fell asleep on the couch and he was on the sofa all the time.” (N.T. at 199.) She also testified that her stepson borrowed the car on the night of July 2nd. On cross-examination, however, Mrs. Fanase testified as follows:

Q And you said that [the stepson] brought the car back at 11:15,11:30?
A Approximately.
Q What day was this?
A To the best of my recollection he borrowed the wagon on Monday and he brought it back on Monday evening.
Q But you don’t remember that for a fact?
A No.
Q Could have been some other night?
A Could have been.
Q In fact, could not have happened at all; correct?
A (Shrugged shoulders.)

(N.T. at 224.)

On December 11, 1991, the jury returned a verdict of guilty on all counts. On February 26,1992, appellant was sentenced on the charges of July 13, 1990. At the same time, Fanase pled guilty to the charges of April 30 and August 22, 1991. Judgment of sentence was entered and, thereafter, Fanase neither sought to have his sentence reconsidered nor appealed.

On January 26, 1993, nearly one year after the judgment of sentence, Fanase filed a pro se motion for post-conviction relief as to all of the charges for which appellant was sentenced on February 26, 1992. The claims asserted by Fanase’s motion were: (1) trial counsel was ineffective for failing to request an alibi instruction; (2) trial counsel was ineffective for failing to request a no-adverse-inference charge; and (3) a police officer’s reference, on direct examination, to photos of Fanase in police records prejudiced his constitutional right to a fair trial. PCRA counsel was then appointed.

On November 10, 1994, the PCRA court, per the Honorable Cheryl Allen Craig, reinstated Fanase’s appellate rights and denied all other claims raised in the PCRA petition. On December 7, 1994, Fanase appealed the denial of his PCRA claims and on December 16, 1994, the Commonwealth filed a cross-appeal challenging the reinstatement of Fanase’s appellate rights.

We first address the Commonwealth’s claim that the PCRA court erred in reinstating Fanase’s appellate rights. In addressing this argument we revisit a portion of the procedural history of this litigation. In his petition for PCRA relief, filed January 26,1993, Fanase presented no less than 14 allegations of trial counsel ineffectiveness. The final allegation is “trial Counsel was further ineffective for failing to ... file a direct appeal on defendant’s behalf as requested by defendant.” (PCRA Petition at 10.) At the PCRA hearing held on November 2, 1994, the sole testimony presented was that of Fanase’s trial counsel, who testified at length concerning several of the ineffectiveness allegations. However, our review of the 80-page hearing transcript reveals not a single question or answer, either on direct or cross-examination, concerning the failure to appeal Fanase’s conviction. As noted, following the hearing, the PCRA court reinstated Fanase’s appellate rights before turning to the merits of his PCRA petition. In its Opinion supporting the adjudication, the PCRA court rejected the Commonwealth’s claim that Fanase waived his appellate rights, holding as follows:

Unfortunately for the Commonwealth, because the very nature of the appeal is that trial counsel did not follow up on legitimate issues meriting appeal, the Commonwealth’s position will not prevail.

(Slip Op., Craig, J., 3/17/95, p. 2.)

Thus, as the Opinion indicates, the PCRA court reinstated Fanase’s appellate rights exclusively on the basis that “trial counsel did not follow up on legitimate issues meriting appeal.” Contrary to this suggestion, however, our law has never provided that the reinstatement of appellate rights automatically follows a failure to appeal.

We considered a case quite similar to the one presently before us in Commonwealth v. Lehr, 400 Pa.Super. 514, 583 A.2d 1234 (1990). In Lehr, no direct appeal was taken from the judgment of sentence imposed following appellant’s conviction for homicide by vehicle and related charges. As here, the appellant in Lehr filed a PCRA petition asserting 14 bases of relief, the last of which alleged “Counsel for the defendant failed to appeal to the Superior Court.” Id. at 515, 583 A.2d at 1235. We began our analysis by noting that, to be eligible for relief under the PCRA, a petitioner must plead and prove:

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

Id., citing 42 Pa.C.S. § 9543(a)(3).

We also discussed, as follows, appellant’s failure to appeal: [AJbsent extraordinary circumstances, the failure to file a direct appeal from a judgment of sentence amounts to waiver of any claim which could have been raised in such an appeal, thereby precluding collateral relief. Now, in an attempt to circumvent the consequences of his failure to appeal from the judgment of sentence imposed upon him, the appellant alleges that counsel was ineffective for failing to file and pursue a direct appeal. To successfully avoid a finding of waiver, the appellant “must prove that he requested an appeal and that counsel disregarded the request.”

Lehr, supra at 515, 583 A.2d at 1235 (citations omitted).

Turning to the Lehr PCRA hearing, we found that appellant and trial counsel offered contradictory testimony as to whether appellant requested an appeal. Id. Since credibility is a determination left to the trial court, which had found appellant’s version incredible, we held as follows:

Thus, because the appellant has failed in meeting his burden of showing that he requested an appeal and that counsel disregarded the request, the issues presented instantly ... are deemed waived.

Id. at 517, 583 A.2d at 1236.

As section 9543 of the PCRA and Lehr indicate, a petitioner bears the burden of “pleading and proving” that his request for an appeal was ignored or rejected by trial counsel. Mere allegation is simply insufficient.

Instantly, Fanase’s failure to carry his burden of proof is even more apparent than that which occurred in Lehr. The appellant in Lehr testified and elicited testimony from trial counsel on the relevant issue, thus enabling the PCRA court to consider credibility. On the other hand, Fanase neither testified nor asked trial counsel a single question concerning the failure to appeal. Further, in his appellate brief, Fanase fails to discuss, or even mention, the very issue upon which the PCRA court reinstated his appellate rights. In short, Fanase has not offered a scintilla of evidence that he requested an appeal or that trial counsel failed to honor the request. Thus, as we said in Lehr, “[bjecause the appellant has failed in meeting his burden of showing that he requested an appeal and that counsel disregarded the request, the issues presented instantly ... are deemed waived.” Lehr, supra at 517, 583 A.2d at 1236. Fanase may not now avoid a finding of waiver simply by claiming that trial counsel was ineffective for failing to file and pursue a direct appeal. Id.; see also Commonwealth v. Hudson, 336 Pa.Super. 174, 485 A.2d 487 (1984).

Lastly, we note that appellant was clearly aware of his right to appeal the February 26, 1992 judgment of sentence. The colloquy following the imposition of sentence reads as follows:

MR. FOGLIA [Defense Counsel]: Do you want me to give him the appeal rights, Your Honor?
THE COURT: Yes, you may.
MR. FOGLIA: Mr. Fanase, do you understand you have ten days from today to ask the court to reconsider your sentence?
Do you understand that?
THE DEFENDANT: Yes.
MR. FOGLIA: If you cannot afford a lawyer, a lawyer will be appointed to you by the court free of charge.
Do you understand that?
THE DEFENDANT: Yes.
MR. FOGLIA: Do you understand what your appeal rights are?
THE DEFENDANT: Yes.
MR. FOGLIA: Do you understand that on these cases the appeal rights were set forth in the form on those four basic grounds which I explained to you before?
THE DEFENDANT: Yes.
MR. FOGLIA: Do you want me to repeat those grounds at all?
THE DEFENDANT: No.

(N.T., 2/26/92, pp. 12-14.) Based on the foregoing, we agree with the Commonwealth that the PCRA court erred in reinstating Fanase’s appellate rights in the absence of any evidence that he requested an appeal or that trial counsel disregarded the request.

Moreover, since the issue of waiver is now finally litigated, Fanase may not pursue the issue in a subsequent PCRA petition. See 42 Pa.C.S. § 9543(a)(3) (“To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence ... (3) That the allegation of error has not been previously litigated.... ”); see also Commonwealth DeHart, 539 Pa. 5, 650 A.2d 38 (1994).

Nonetheless, having considered Fanase’s underlying issues, we agree with the PCRA court that they are without merit. In order to prevail on his claims alleging ineffectiveness of trial counsel, Fanase must show: “(1) the underlying claim is of arguable merit; (2) the particular course of conduct of counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel’s ineffectiveness prejudiced him.” Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Initially, Fanase claims trial counsel was ineffective for failing to request an alibi instruction. However, Fanase’s wife, the only alleged alibi offered, was uncertain as to important facts on the night of the burglary. For instance, while Mrs. Fanase testifies on direct examination that her stepson borrowed the car on July 2, 1990 and her husband therefore could not have driven it to the burglary, she admitted on cross-examination that she “could have been” (N.T., 12/10/91, p. 224) referring to another night. Based on this testimony, the PCRA court, whose job it was to assess credibility, concluded that Mrs. Fanase “was less than certain if Petitioner was home at the exact time the crime occurred.” (Slip Op., Craig, J., 3/17/95, p. 3.) Thus, since sufficient evidence of alibi was not presented, no alibi instruction was required. Commonwealth v. Repaci, 419 Pa.Super. 591, 615 A.2d 796 (1992). Finally, we note that Fanase failed to provide record notice to the Commonwealth of his intent to present an alibi defense, as required by Pa.R.Crim.P. 305. This default may also operate to waive the right to an alibi instruction. Commonwealth v. Poindexter, 435 Pa.Super. 509, 523, 646 A.2d 1211, 1218 (1994) (“The right to present evidence of an alibi and to receive a jury instruction therefrom, however, is not absolute. In order to obtain this right, a defendant must comply with the notice requirement set forth in rule 305.... ”). Thus, Fanase’s first ineffectiveness claim fails under prong one of Pierce because it lacks arguable merit.

Next, Fanase claims his trial counsel was ineffective for failing to request a no-'adverse-inferenee charge based on Fanase’s refusal to testify. The no-adverse-inference charge, as set forth in section 3.10(A) of the Pennsylvania Standard Criminal Jury Instructions, provides as follows:

3.10A (Grim) DEFENDANT’S FAILURE TO TESTIFY NOT EVIDENCE OF GUILTY
It is entirely up to the defendant in every criminal trial whether or not to testify. He has an absolute right founded on the Constitution to remain silent. You must not draw any inference of guilt from the fact that the defendant did not testify.

Our Supreme Court has repeatedly stated that “as a matter of Pennsylvania constitutional law, as under the United States Constitution, criminal defendants in this Commonwealth are entitled to a ‘no-adverse-inference’ jury instruction, when a timely request is made to the trial court.” See e.g., Commonwealth v. Lewis, 528 Pa. 440, 447, 598 A.2d 975, 979 (1991).

Instantly, the trial court charged Fanase’s jury as follows:

The fundamental principle of our criminal justice system is that a person accused of a crime, the defendant, is presumed to be innocent. The mere fact that the defendant was arrested and accused of a crime is not any evidence against the defendant. In addition, there is no inference of guilt created by the fact that there is an information or even a trial.
Furthermore, the defendant is presumed innocent throughout the trial unless and until you can conclude based on careful and impartial consideration of the evidence that the Commonwealth has proved the defendant guilty beyond a reasonable doubt.
A person accused of a crime is not required to present evidence or prove anything in his own defense. If the Commonwealth fails to meet its burden, then your verdict must be not guilty. On the other hand, if the Commonwealth does prove beyond a reasonable doubt that the defendant is guilty, then your verdict should be guilty ...
To summarize, you may not find the defendant guilty based on the mere suspicion of guilt. The Commonwealth has the burden of proving the defendant guilty beyond a reasonable doubt. If it meets that burden, the defendant is no longer presumed to be innocent and you should find him guilty. On the other hand, if the Commonwealth does not meet its burden then you must find the defendant not guilty.

(N.T., 12/11/91, pp. 286-288.)

In rejecting Fanase’s claims, the PCRA court found that this charge was an adequate substitute for the no-adverse-inference charge because “[t]he above instruction is virtually standard for all Allegheny County [and] is far more extensive than § 3.10(a) of the Pennsylvania Standard Criminal Jury Instructions.” (Slip Op. at 6.)

In Lewis, our Supreme Court explicitly rejected, as follows, the argument relied on by the PCRA court:

In the instant case, the District Attorney argues that, even absent a specific “no-adverse-inference” charge, the trial court accomplished the same general goal by indirection. The District Attorney states that the trial court repeatedly instructed the jury that defendant had no burden of proof at all, and instructed the jury that the burden of proof rested upon the Commonwealth to establish the guilt of the defendant beyond a reasonable doubt. The court made clear that the jury’s verdict could only be based upon evidence that they heard from the witness stand....
Such an argument, however, misses the mark. The specific constitutionally mandated “no-adverse-inference” charge may not be replaced by a patchwork of less direct instructions. The entire premise underlying our requirement of the “no-adverse-inference” charge to the jury, under Article I, Section 9, is that the trial judge is vested with an obligation to protect the defendant’s right to remain silent, free from the insidious danger of adverse inference presented by a jury left free to wander in speculation. Experience teaches us that the very exercise of an individual’s right not to testify, under Article I, Section 9, may endanger that right if the jury is left free to draw negative inferences from the defendant’s decision to exercise his or her constitutional privilege. The trial court, being in a unique position to protect a defendant’s constitutionally secured right through the jury charge, is the only bulwark to ensure that the exercise of a fundamental right does not turn into an act of constitutional suicide. Having determined in this Commonwealth that a “no-adverse-inference” charge is necessary to secure the guarantees of Article I, Section 9, the judge has either given the charge or he has not. Make-shift substitutes will not suffice. Juries must be told in no uncertain terms that no adverse inference may be drawn from a defendant’s failure to take the stand; otherwise, we are left to mere guesswork as to the meaning juries have ascribed to tangentially related words of the court.

Id. at 450, 598 A.2d at 979-980 (footnote omitted); see also Commonwealth v. Howard, 538 Pa. 86, 98, 645 A.2d 1300, 1306 (1994) (refusing to recognize “an indirect, piecemeal approach” to delivering the no-adverse-inference charge).

Based upon the fundamental principles enunciated in Lewis, we find that trial counsel improperly failed to request a no-adverse-inference charge. Fanase’s claim therefore has arguable merit. However, as noted above, this conclusion does not end our Pierce inquiry.

As to the second prong of Pierce, whether trial counsel had a reasonable basis in failing to request a no-adverse-inference instruction, we find that he did not. We are, of course, aware that defense counsel’s request that no such instruction be given may be a reasonable trial strategy under certain circumstances. See e.g., Commonwealth v. Edwards, 535 Pa. 575, 637 A.2d 259 (1994) (“defendant and his or her counsel [may] determine that the fundamental right to remain silent is best served by not drawing attention to defendant’s silence.”). However, this principle is irrelevant presently because counsel made no request that a charge not be given. Indeed, counsel’s failure to request, or not request, the charge had nothing to do with trial strategy and was based instead on his belief that a no-adverse-inference charge “is a standard jury instruction given by the judge.” (N.T., 11/2/94, p. 13.) Hence, counsel’s failure to request the instruction had no reasonable basis.

As noted, the third prong of Pierce requires that Fanase demonstrate that he was prejudiced by trial counsel’s conduct. Under Pierce and its progeny, a defendant is required to show actual prejudice; that is, that counsel’s ineffectiveness was of such magnitude that it “could have reasonably had an adverse effect on the outcome of the proceedings.” Pierce, supra at 162, 527 A.2d at 977. This standard is different from the harmless error analysis typically applied when determining whether the trial court erred in taking or failing to take certain action. The harmless error standard, as set forth by this Court in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), states that “[w]henever there is a ‘reasonable possibility’ that an error ‘might have contributed to the conviction,’ the error is not harmless.” Id. at 408, 383 A.2d at 164 (citations omitted). This standard, which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a reasonable doubt, is a lesser standard than the Pierce prejudice standard, which requires the defendant to show that counsel’s conduct had an actual adverse effect on the outcome of the proceedings. This distinction appropriately arises from the difference between a direct attack on error occurring at trial and a collateral attack on the stewardship of counsel. In a collateral attack, we first presume that counsel is effective, and that not every error by counsel can or will result in a constitutional violation of a defendant’s sixth amendment right to counsel. Pierce, supra.

Fanase’s ineffectiveness claim fails under this analysis. His sole assertion of prejudice reads as follows:

[BJecause Appellant Fanase, in the exercise of his constitutional right not to take the stand may have raised jurors speculation as to his innocence, he was prejudiced.

(Appellant-Fanase’s brief at 16.)

This statement is clearly insufficient to demonstrate to this Court how in fact Fanase was prejudiced. Howard, supra 538 at 101, 645 A.2d at 1309 (holding insufficient a similar bald assertion of prejudice). Nor can we discern from our independent review of the record how Fanase was prejudiced. Id. Therefore, • because he has not satisfied the third prong of Pierce, Fanase’s claim fails.

Finally, Fanase claims that his right to a fair trial was prejudiced by the following statements of a police officer, on direct examination:

Q Now, after you got the report concerning this burglary, what did you do?
A We made a back up on it, went out and did an investigation on it, contacted the witness in this case and put together a photo spread; showed him a photo spread that he picked out [sic] the actor out of the photo spread. With that, we secured a warrant and we went looking for Mr. Fanase.
Q How did you put together that photo array?
A I got Mr. Fanase’s photograph and I had other pictures in our files that I thought were similar as part of a photo spread.

(N.T., 12/10/91, pp. 160-161.)

Specifically, Fanase claims that the reference to “other pictures in our files” raised an improper inference of past criminal conduct. We disagree. Initially, we note that the “other pictures in our files” referred to photographs of other individuals, which were then placed with Fanase’s to make the photo spread. Thus, appellant’s true claim is that the statement “I got Mr. Fanase’s photograph” somehow indicated past criminal conduct. Again, we disagree. As we stated in Commonwealth v. Brown, 511 Pa. 155, 512 A.2d 596 (1986),

One’s picture may be in the possession of the police even though the person was neither charged, tried nor convicted of any crime.
Leaving aside the fundamental logic that a previous record does not prove present guilt, the possession by the police of one’s photo does not ineluctably prove a previous conviction. At the most it proves only that the police had a photo of the defendant on file.

Id. at 156, 512 A.2d at 596.

Further, even assuming that the vague reference to getting “Mr. Fanase’s photograph” somehow prejudiced Fanase, the prejudice was cured by the following exchange, which occurred immediately after a sidebar called by defense counsel to discuss the reference to Fanase’s photos:

Q [BY THE DISTRICT ATTORNEY]: Detective, now, the reason that you had this photograph of Mr. Fanase [was] because he was identified as being the owner of a ear; correct?

A That’s correct.

(N.T., 12/10/91, p. 162.) Thus, Fanase’s final claim fails.

Based on the foregoing, although we find that the PCRA court improperly reinstated Fanase’s appellate rights because those rights had been waived, we nevertheless affirm its denial of his PCRA claims. The February 26, 1992 judgment of sentence is therefore affirmed.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3502.

      . Id., § 3925.

      . Id., § 903(a)(1).

      . We note that Commonwealth v. Lewis, 528 Pa. 440, 598 A.2d 975 (1991), was decided on October 31, 1991 and, since Fanase's trial did not commence until December 9, 1991, the Lewis mandate was applicable. Further, the cases relied on in Lewis, including Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), and a line of Pennsylvania cases emphasizing the importance of a no-adverse-inference charge, were clearly available to the trial court and both parties. See Commonwealth v. Howard, 538 Pa. 86, 97-98, 645 A.2d 1300, 1306 (1994) ("Although appellant’s trial was conducted before Lewis was decided by the Court ... the general principles on which Lewis was based were enunciated in Carter and were readily available to trial counsel and the trial court.”).


author: BECK, Judge:

text:
    665 A.2d 1293
    KIRBY ELECTRIC, INC., Appellant, v. JET CONTRACTING CORPORATION, United States Fidelity and Guaranty Company, Robinson-Conner, Inc., and Alexander Meleshenko. (Two Cases)
    Superior Court of Pennsylvania.
    Argued June 29, 1995.
    Filed Oct. 17, 1995.

      Charles W. Robinson, Warrendale, for appellant.
    Albert G. Feczko, Bethel Park, for Jet Contracting Corp., appellee.
    Jeffrey B. Brahan, Pittsburgh, for United States Fidelity, appellee.
    Mike Adams, Export, for Robinson-Conner & Alexander Meleshenko, appellees.
    Before BECK, JOHNSON and HESTER, JJ.
   BECK, Judge:

We decide whether the 1992 amendments to Pennsylvania Rule of Appellate Procedure 341, regarding Final Orders, apply to the instant appeal. We conclude that new Rule 341 does apply to this case and therefore quash this appeal as interlocutory.

In June 1992, appellant Kirby Electric, Inc. commenced this contract action against Jet Contracting Corporation (“Jet”), United States Fidelity and Guaranty Company (“USF & G”), Robinson-Conner, Inc., and Alexander Meleshenko. On August 5, 1994, the lower court sustained preliminary objections in the nature of a demurrer filed by appellees Jet and USF & G, and dismissed Kirby’s action against these parties. Kirby filed the instant appeal. In the meantime, the remaining defendants, Robinson-Conner and Alexander Meleshenko, filed their own preliminary objections in the nature of a demurrer against Kirby. These preliminary objections remain outstanding.

On May 6, 1992, Pennsylvania Rule of Appellate Procedure 341 was amended to define a final order as one that disposes of all claims or of all parties and provides in relevant part:

(a) General Rule. Except as prescribed in subdivisions (d), and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court.
(b) Definition of Final Order. A final order is any order that:
(1) disposes of all claims or of all parties; or
(2) any order that is expressly defined as a final order by statute; or
(3) any order entered as a final order pursuant to subsection (c) of this rule.
(c) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims or parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims or parties shall not constitute a final order....

Pa.R.App.P. 341, 42 Pa.C.S. (Purdon Supp.1995).

If new Rule 341 is applicable here, it is clear that the instant appeal is premature, as the order sustaining Jet and USF & G’s preliminary objections and dismissing Kirby’s action as to them alone did not dispose of all claims or all parties. See, e.g., Continental Bank v. Andrew Building Co., 436 Pa.Super. 559, 648 A.2d 551 (1994) (order dismissing counterclaim only is not final under new Rule 341); Robert H. McKinney, Jr., Assocs. v. Albright, 429 Pa.Super. 440, 632 A.2d 937 (1993) (order dismissing some but not all defendants is not final under new Rule 341).

It is equally clear that under old Rule 341 and the decisions interpreting it, the court’s order dismissing Kirby’s action as to Jet and USF & G would be final and appealable. See Bash v. Bell Telephone Co., 411 Pa.Super. 347, 601 A.2d 825 (1992) (dismissal of all claims against one of multiple defendants was final and appealable order); Foflygen v. R. Zemel, M.D. (PC), 420 Pa.Super. 18, 615 A.2d 1345 (1992) (dismissal of all claims against two but not all defendants was final and appealable order). See also Note, Pa.R.App.P. 341.

The Historical Notes appended to Rule 341 explain the amendment’s effective date:

The order of May 6,1992 provides that the amendment of this rule shall become effective July 6, 1992, and shall govern only actions or administrative proceedings originally commenced in a court, Commonwealth agency or local agency after that date.
Order of the Supreme Court dated January 10, 1994, effective March 1, 1994, provides that the amendment to Pa.R.A.P., Rule 341, adopted May 6, 1992, is made applicable to all orders entered on or after the effective date of said order, regardless of the date the-action or administrative proceeding was originally commenced in a court, Commonwealth agency or local agency. The order would not affect any orders entered by a court, Commonwealth agency or local agency after July 6, 1992, and before the effective date of said order in any action commenced on or before July 6, 1992.

Pa.R.App.P. 341, 42 Pa.C.S., Historical Notes (emphasis added).

A writ of summons was filed in this matter in May 1992 and reissued in June 1992. Under the rule’s original effective date, new Rule 341 would not apply herein. However, since the Pennsylvania Supreme Court’s further amendment of the rule’s effective date, the applicability of new Rule 341 is defined by reference to the date of the subject order. In this case, the order sustaining the preliminary objections and dismissing Kirby’s claim as to Jet and USF & G was entered on August 5, 1994. The supreme court order dictates that new Rule 341 applies to this appeal, since the subject order was entered after March 1, 1994. We therefore conclude that the instant appeal is from an interlocutory rather than a final order, and must be quashed.

Appeal quashed.

      . The trial court evidently did not make an “express determination that an immediate appeal would facilitate resolution of the entire case" such that the matter would be considered final and appealable. Pa.R.App.P. 341(c).

      . Appellant argues that the Pennsylvania Supreme Court did not follow its own January 10, 1994 order in its holding that the new rule did not apply in Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994), and that the rule should therefore not be applicable here. However, in Noll, which was commenced in September 1988 and involved a trial court order dated June 5, 1991, see Noll v. Paddock Pool Builders, Inc., 416 Pa.Super. 284, 611 A.2d 219 (1992), the supreme court did not need to refer to its January 10, 1994 order to decide which version of Rule 341 would govern that case. The January 10, 1994 order referred only to trial court orders dated after March 1, 1994. Since the Noll order was dated June 5, 1991, the relevant date was the date of commencement, September 1988, and that date clearly placed the case within the parameters of old rule 341. Therefore, the supreme court did not ignore its order of January 10, 1994, but merely found it inapplicable, and it was necessary to refer only to the original effectiveness language of the May 6, 1992 amendments in its opinion. Noll by Noll v. Harrisburg YMCA, supra at 279 n. 2, 643 A.2d at 83 n. 2.