author: TAMILIA, Judge:

text:
    556 A.2d 904
    DAUPHIN DEPOSIT BANK AND TRUST COMPANY, Appellant, v. George E. PIFER.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1988.
    Filed April 6, 1989.

      Michael W. Flannelly, York, for appellant.
    Harold N. Fitzkee, Jr., York, for appellee.

      Before WIEANB, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

This is a timely appeal by Dauphin Deposit Bank and Trust Company of judgment entered on a jury verdict in favor of appellee, George E. Pifer, after denial of appellant’s post-trial motions. The case went to trial following the trial court’s opening of the judgment by confession entered by appellant.

Appellant brought this action to recover the principle sum of $30,000 plus interest, which it loaned to appellee. The parties stipulated that on March 12, 1979 appellant loaned appellee $30,000 with no terms of repayment. The parties had had prior dealings before this loan. At trial, appellee claimed he repaid the principle plus interest on July 7, 1982 in cash, by bringing the cash into the bank and in return receiving a receipt from the bank. Appellant claims the receipt is a forgery and maintains the loan was never repaid. After hearing all of the evidence the jury returned a verdict in favor of appellee.

Appellant’s first claim on appeal is that the trial court erred in prohibiting its witness Susanne Smith, of the Paul M. Smith Rubber Stamp Company, from rendering an opinion as to whether the stamp appearing on the appellee’s receipt (Plaintiff’s Exhibit 7), was from a stamp used by appellant, as exhibited by five samples of appellant’s stamps which were brought to trial (Plaintiff’s Exhibit 8). A review of Smith’s testimony discloses she was never qualified as an identification expert — as pointed out by the trial court (Slip Op., Erb, P.J., 4/29/88, p. 3) — and was only involved in the manufacture of rubber stamps for the past twelve years in the employment of her company, which made stamps for appellant for a period greater than the last twelve years. Although Smith was able to testify as to the manufacturing process and the number of stamps her company made over the years she was not qualified to identify the mark made on appellee’s receipt with those made by the sample of stamps presented. The question of qualifications of a witness to give expert opinion testimony is within the discretion of the trial court. Gottfried v. American Can Company, 339 Pa.Super. 403, 489 A.2d 222 (1985); Reed v. Hutchinson, 331 Pa.Super. 404, 480 A.2d 1096 (1984). Here, no attempt to qualify the witness as an expert to render opinion testimony was made by appellant at trial, leaving the determination properly within the jury’s purview. Based on a review of the testimony, we find the trial court did not abuse its discretion in so ruling.

Next, appellant claims it was error to grant appellee’s request for a jury trial because the request was made in an untimely manner. Pennsylvania Rule of Civil Procedure 2960 provides:

Rule 2960. Proceedings upon Opening of Judgment. Pleadings. Jury Trial. Waiver
If a judgment is opened in whole or in part the issues to be tried shall be defined by the complaint if a complaint has been filed, and by the petition, answer and the Order of the court opening the judgment. There shall be no further pleadings. The right to a jury trial on the opened judgment shall be deemed waived unless a party files and serves a written demand for jury trial within twenty (20) days after the order opening judgment; but if the issue is referred to compulsory arbitration, Rule 1007.1 shall apply-

(Emphasis added.) Here, the petition to open the confessed judgment was granted by Order dated January 23, 1987. Appellee’s request for a jury trial was not made until approximately nine months later at the November 12, 1987 pre-trial conference. The trial itself was held three months after that, February 1, 1988. Thus, appellee’s request was untimely from the face of the rule. Further, the request was never made by way of a “written demand,” but orally during the pre-trial conference.

As explained in the comment to Rule 2960, the sentence regarding a right to jury trial was “added to the existing Rule [2960] to incorporate the principles of Rule 1007 and Rule 1007.1 respecting demand or waiver of jury trial upon an opened judgment.” The similarity in language between Rule 2960 and Rule 1007.1(a) is evident:

Rule 1007.1. Jury Trial. Demand. Waiver
(a) In any action in which the right to jury trial exists, that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than twenty (20) days after service of the last permissible pleading. The demand shall be made by endorsement on the pleading or by a separate writing.

Neither Rule 1007.1 nor rule 2960 explicitly bar a trial court from allowing an untimely jury demand. Only a strict construction would require a finding that the rules’ requirements were mandatory in nature allowing for no exception. Such a construction is generally refuted by the precepts found in Pa.R.C.P. 126:

Rule 126. Liberal Construction and Application of Rules
The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

(Emphasis added.) Additionally, in Pomerantz v. Goldstein, 479 Pa. 175, 178-79, 387 A.2d 1280, 1281-82 (1978), our Supreme Court has explained:

Procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives.
Rule 126 not only expresses the reasons why our rules are to be liberally construed — to ensure that justice is accorded the parties to a lawsuit — but also permits us to disregard procedural errors which do not affect substantial rights.

(Citations omitted.) “[T]he right to trial by jury is not a ‘substantive right/ but a right of procedure through which rights conferred by substantive law are enforced.” Commonwealth v. Sorrell, 500 Pa. 355, 361, 456 A.2d 1326, 1329 (1982).

As a procedural right, the right to trial by jury allows for some flexibility in its application. It is for this reason that the right can be waived. Additionally, the constitutional magnitude of the right permits greater flexibility in dealing with delayed demands for jury trial. Hawley Bank v. Santini, 256 Pa.Super. 203, 389 A.2d 671 (1978); 7 Std.Pa.Prac.2d § 42:6. However, this is not to imply that full compliance with the rules of procedure is not required or that failure to do so is without peril. The administration of justice requires the efficient operation of the judicial system with compliance with the rules of procedure a necessity, Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215 (1987), appeal denied, 518 Pa. 627, 541 A.2d 1138 (1987), but the rules cannot “be accorded the status of substantive objectives requiring rigid adherence.” Lewis v. Erie Insurance Exchange, 281 Pa.Super. 193, 199, 421 A.2d 1214, 1217 (1980). Through Pa.R.C.P. 248, the rules allow for some exceptions in time requirements by allowing the time period of any rule of civil procedure to be lengthened or shortened by written agreement of the parties or by Order of court.

On appeal we normally are generally presented question of whether a waiver of the right to a trial by jury occurred, not whether a jury trial was improperly granted. Here, the trial judge granted appellee a jury trial after the twenty day period, but well before trial. The trial went forward without reversible error and justice dictates the propriety of the verdict should be upheld. Our Supreme Court has stated “there is no inherent prejudice in proceeding to trial by jury as opposed to trial before a judge.” Commonwealth v. Morales, 508 Pa. 51, 65, 494 A.2d 367, 374 (1985) (citing Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175 (1983)). In upholding a trial court’s finding that a jury trial was properly waived due to the untimely nature of the request, the Court in Jones v. Van Norman, 513 Pa. 572, 584, 522 A.2d 503, 509 (1987), stated “considerations of prejudice to the other side play no part in enforcing a waiver of a jury trial where the provisions of Rule 1007.1(a) have not been met.” Therefore, lack of prejudice to either side is not a factor in determining a waiver. Whatever tactical reason counsel may choose for proceeding with or without a jury is irrelevant to the actual fairness of the trial. Because the constitutional right is a right to jury trial and not a right to forego a trial by jury, we will not reverse a trial judge’s decision to grant a tardy request for jury trial without good reason. No such reasons have been presented here.

We find appellant’s third issue on appeal concerning the propriety of the trial court’s granting appellee’s petition to open the confessed judgment to be waived for failure to include it in post-trial motions as required by Pa.R.C.P. 227.1(b). Under Pa.R.A.P. 311(a)(1), “[a]n order opening vacating or striking off a judgment” is an interlocutory Order appealable as of right within thirty days of the Order pursuant to Pa.R.A.P. 903(a). However, if a party chooses not to appeal such an Order within thirty days it may continue to litigate in the trial court and raise the issues concerning the Order “on any subsequent appeal in the matter from a determination on the merits” as permitted by Pa.R.A.P. 311(d)(1)(i), without constituting a waiver of any of the objections. Kennedy & Carter Construction Company, Inc., v. Barkley, 321 Pa.Super. 348, 468 A.2d 513 (1983). But, in order to preserve pretrial rulings on appeal from a final determination, the rulings must be raised in post-trial motions. Pa.R.C.P. 227.1(b)(2). Pennsylvania Rule of Civil Procedure 227.1(b) provides:

(b) Post-trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pretrial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and
Note: If no objection is made, error which could have been corrected in pre-trial proceedings or during trial by timely objection may not constitute a ground for post-trial relief.
(2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.

(Emphasis added). The 1983 Explanatory Comment to the rule explains:

In Yudacufski v. Commonwealth, Department of Transportation, 499 Pa. 605, 454 A.2d 923 (1982), the Supreme Court noted that the Rules of Civil Procedure governing post-trial practice “do not specifically include a requirement that pre-trial rulings must be raised in post-trial motions in order to be preserved.” Subdivision (b) now contains such a provision.
Subdivision (b)(2) specifies the requisites of the motion for post-trial relief. It must state the specific grounds for the relief sought and “how the grounds were asserted in pre-trial proceedings or at trial.”

Appellant’s failure to include the issue in its post-trial motions did not preserve the issue for review.

Similarly, appellant’s fourth issue on appeal claiming the verdict is against the weight of the evidence is not preserved because appellant’s post-trial motions presented this allegation in a boilerplate fashion contrary to the requirements of Pa.R.C.P. 227.1(b). Jackson v. Spagnola, 349 Pa.Super. 471, 503 A.2d 944 (1986); Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981). Appellant’s post-trial motions set forth this allegation as follows: “[t]he verdict for the Defendant by the jury was against the weight of the evidence presented at trial” (Record item #28).

Accordingly, judgment affirmed.

WIEAND, J., concurs in the result.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    556 A.2d 908
    COMMONWEALTH of Pennsylvania v. John A. BARONE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 1, 1987.
    Filed April 5, 1989.

      Craig P. Miller, Lock Haven, for appellant.
    Kenneth Osokow, Assistant District Attorney, Williams-port, for Com., appellee.
    Before WIEAND, BECK and CERCONE, JJ.
   WIEAND, Judge:

John A. Barone was charged with possession and delivery of a controlled substance as a result of an alleged sale of 2.3 grams of cocaine to Donald Kenyon in Barone’s home on April 24, 1985. Kenyon, a police informant, was wearing a concealed recording device, which enabled law enforcement officials to record the conversation between Barone and Kenyon at the time of the sale. Barone was arrested on September 19, 1985, waived his right to a preliminary hearing, and filed a motion to suppress the recording made by police at the time of the sale. Hearings were held, but the motion to suppress was denied. Barone thereafter waived his right to trial by jury, and the charges against him were heard by the trial court on a case-stated basis. Barone was found guilty; post-verdict motions were denied; and Barone was sentenced to serve a term of imprisonment for not less than six months nor more than twenty-three months.

On direct appeal, this Court, in a memorandum decision, held that the decision in Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987) (en banc), allocatur granted, 520 Pa. 596, 552 A.2d 251 (1988), was determinative that a warrantless, recorded interception of a person’s conversation in his own home, even with the consent of the other party to the conversation, was an unreasonable search and seizure under Article I, § 8 of the Pennsylvania Constitution. Accordingly, we reversed Barone’s conviction and remanded for a new trial. The Supreme Court granted allocatur and by per curiam order directed as follows:

The petition for allowance of appeal is granted, the order of the Superior Court is reversed pursuant to Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), and the case is remanded to Superior Court for further proceedings to dispose of respondent’s remaining appellate issues.

Commonwealth v. Barone, 520 Pa. 118, 552 A.2d 1048 (1989). After further review, as directed by the Supreme Court, we find no basis for reversing and affirm the judgment of sentence.

The first of appellant’s remaining contentions is that the Wiretapping and Electronic Surveillance Act, 18 Pa.C.S. § 5701 et seq., is unconstitutional because it denies ordinary citizens the right to record their own conversations while at the same time permitting law enforcement officials to record conversations in which they or those acting at their direction are involved. This imbalance, according to appellant, amounts to a denial of due process of law. We disagree. This same argument was previously rejected by the Superior Court, which reasoned as follows:

[Tjhere is no merit in appellant’s argument that the statute creates a constitutionally impermissible balance in favor of law enforcement officials by allowing them to record incriminating conversations of citizens while denying citizens the correlative right to record exculpatory statements. There is no basis in law for the bald assertion that for every legislatively endorsed or created investigative technique for use by law enforcement officials there must be a correlative and offsetting right by which criminals can conceal their illegal activities.

Commonwealth v. Harvey, 348 Pa.Super. 544, 555, 502 A.2d 679, 684 (1985), overruled on other grounds, Commonwealth v. Schaeffer, supra, but cited with approval in, Commonwealth v. Blystone, 519 Pa. 450, 462 n. 13, 549 A.2d 81, 86 n. 13 (1988).

Appellant’s next contention is that Kenyon’s consent to the interception of his conversation with appellant was not voluntarily obtained. Kenyon’s consent was not voluntary, appellant argues, because prior to the giving of such consent Kenyon had made incriminating statements to the police which would have been used against him if he had not agreed to cooperate. Concerning the consensual interception of communications under the Wiretapping and Electronic Surveillance Act, the Supreme Court has said:

This Court has emphatically stated that for the purposes of 18 Pa.C.S. § 5704(2)(ii), one’s consent must be given voluntarily in order for the governmental actions to be lawful. Commonwealth v. Clark, 516 Pa. 599, 605, 533 A.2d 1376, 1379 (1987), citing Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Mamon, 449 Pa. 249, 297 A.2d 471 (1972).
The voluntariness of one’s consent must be the “product of an essentially free and unconstrained choice by its maker____ His will [must not have] been overborne and his capacity for self-determination critically impaired.” Commonwealth v. Clark, supra, 516 Pa. at 605, 533 A.2d at 1379. See also Commonwealth v. Smith, 470 Pa. 220, 368 A.2d 272 (1977); Commonwealth v. Alston, 456 Pa. 128, 317 A.2d 241 (1974). Each case must be determined “from the totality of the circumstances.” Clark, supra, 516 Pa. at 605, 533 A.2d at 1379. Furthermore, consent is not voluntary where it is the product of coercion or duress either express or implied. However, ‘‘[a] decision to consent is not rendered involuntary merely because it is induced by a desire to avoid the possibility of a well founded prosecution." Id.

Commonwealth v. Rodriguez, 519 Pa. 415, 419, 548 A.2d 1211, 1213 (1988) (emphasis added).

In determining that Kenyon’s consent had been voluntarily given, the suppression court reasoned as follows:

The facts pertaining to the argument that Kenyon did not validly consent to the intercept are these: Kenyon had been the subject of an undercover investigation in the course of which drug purchases were made from him. In March, 1985, Agents of the Attorney General’s Task Force and the FBI advised Kenyon that he would be arrested and sought his cooperation in the ongoing investigation. Kenyon did not believe that he would be arrested and refused. A day or two later he was in fact arrested and committed to the Lycoming County Prison in default of bail. While there he called the Attorney General’s Office and told the agents that he would cooperate. He was represented by an Attorney from the time of his arrest. As a result of discussions between Kenyon, his attorney, officers of the Lycoming County District Attorney’s Office, the Attorney General’s Task Force and the FBI, the defendant began a pattern of cooperation with the ongoing drug investigation. There appeared to have been no specific promises as to the sentence which the defendant would receive, although there was an agreement that the Kenyon sentencing Judge would be advised of the extent to which Kenyon had cooperated with law enforcement authorities.
The facts of this case are distinguishable from Commonwealth v. Clark, [349 Pa.Super. 255], 502 A.2d, 1375 (Pa.Super.1985). Here the defendant was charged at the time he chose to cooperate, he was represented by counsel at all critical discussions relating to his decision to cooperate, he clearly and convincingly testified that he made an intelligent and deliberate decision to cooperate in the investigation in the hope that he might eventually receive more lenient treatment by the sentencing Judge. His consent to the interception was voluntary.

This issue was correctly resolved by the suppression court. See: Commonwealth v. Clark, 516 Pa. 599, 608, 533 A.2d 1376, 1381 (1987) (“The threat of prosecution, without more, does not vitiate consent.”).

We reject appellant’s contention that because Kenyon admitted he was using heroin he could not make a voluntary and knowing consent. The decision in Commonwealth v. Dewitt, 271 Pa.Super. 156, 412 A.2d 623 (1979) is to the contrary. It was there held that intoxication by use of drugs or alcohol was insufficient, in and of itself, to render a confession involuntary.

Appellant argues next that the requirements of 18 Pa.C.S. § 5704(2)(ii) were not met in the instant case because he was not specifically listed as a target of the investigation in the memoranda of approval by which the Deputy Attorney General authorized consensual interceptions of conversations. We find no merit in this contention. “Surveillance conducted with the consent of a party to the conversation is not subject to the exacting standards of authorization required for non-consensual surveillance under the Wiretap Act.” Commonwealth v. Cheeca, 341 Pa.Super. 480, 492, 491 A.2d 1358, 1364 (1985). Under the Wiretapping and Electronic Surveillance Act:

Police discretion is not unlimited. It is restricted by the requirement that one of the parties must give prior consent to such an interception. Interceptions are also limited to communications involving suspected criminal activities. When acting within these limitations, law enforcement authorities violate no constitutional rights of the parties by intercepting conversations where one of the conversants has consented to have the conversation recorded.

Commonwealth v. Haney, supra 348 Pa.Super. at 555, 502 A.2d at 684. Of the Wiretapping and Electronic Surveillance Act, the Supreme Court has said:

[T]he current electronic surveillance statute strikes a balance between citizens11 legitimate expectation of privacy and the needs of law enforcement officials to combat crime. In this regard the General Assembly has provided safeguards to protect the liberties of the citizens of the Commonwealth. For instance, the statute requires the Attorney General, deputy attorney general designated in writing by the Attorney General, district attorney, or an assistant district attorney designated in writing by the district attorney, to make a review of the facts of each case. Consent for the interception must be given by one of the parties. The Attorney General, deputy attorney general, district attorney, or assistant district attorney must be satisfied that the consent is voluntary. Only then will approval for the interception be given.

Commonwealth v. Blystone, 519 Pa. 450, 462, 549 A.2d 81, 86-87 (1988). See also: Commonwealth v. Brachbill, 520 Pa. 533, 547, 555 A.2d 82, 89-90 (1989); Commonwealth v. Rodriguez, supra 519 Pa. at 420 n. 5, 548 A.2d at 1214 n. 5. In the instant case, the authorization was adequate. “There is no requirement in consensuál cases that the target be identified or that probable cause to intercept a particular communication exists.” Commonwealth v. Rodriguez, 356 Pa.Super. 543, 549, 515 A.2d 27, 30 (1986), affirmed, 519 Pa. 415, 548 A.2d 1211 (1988). See also: Commonwealth v. Harvey, supra 348 Pa.Super. at 556, 502 A.2d at 684-685. Cf. Commonwealth v. Whitaker, 519 Pa. 77, 546 A.2d 6 (1988) (applications for non-consensual wiretaps cannot be expected to name every person whose communications are in fact intercepted when there are no probable grounds to believe such communications will be intercepted).

Appellant’s final argument on appeal, that the trial court erred in denying his motion to modify sentence, is wholly without merit. Appellant alleges that the trial court commented at the sentencing hearing regarding the dangers of crack, a drug which appellant was not chargéd with possessing or delivering, and that, therefore, the court based its sentence on an inappropriate factor. Our review of the record discloses that the comments which appellant seeks to attribute to the sentencing court were actually made by the District Attorney. Our review further discloses that the trial court’s sentence was consistent with the principles set forth in the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and was in no way based upon improper considerations. It was, therefore, not an abuse of discretion for the trial court to deny appellant’s motion for modification of sentence.

Judgment of sentence affirmed.

      . Only one sentence was imposed. The trial court determined that for sentencing purposes the crime of possession of a controlled substance had merged into the crime of delivery.

      . In Commonwealth v. Brion, 381 Pa.Super. 83, 552 A.2d 1105 (1989) a panel of the Superior Court determined that Commonwealth v. Schaeffer had been overruled sub silentio by the Supreme Court’s decisions in Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988) and Commonwealth v. Rodriguez, 519 Pa. 415, 548 A.2d 1211 (1988).

      . Appellant had argued in the trial court that the Superior Court’s decision in Commonwealth v. Clark, 349 Pa.Super. 255, 502 A.2d 1375 (1985), reversed, 516 Pa. 599, 533 A.2d 1376 (1987) was controlling of this issue. The Superior Court’s decision in Clark, however, was thereafter reversed by the Supreme Court.

      . This section provides as follows:
      § 5704. Exceptions to prohibition on interception and disclosure of Communications
      It shall not be unlawful under this chapter for:
      (2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:

        (ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.
      18 Pa.C.S. § S704(2)(ii).


author: KELLY, Judge:

text:
    556 A.2d 912
    In re Dennis G. WALTIMYER and Barbara A. Waltimyer, Appellees, v. Romaine SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1988.
    Filed April 4, 1989.

      John Thompson, Jr., York for appellant.

      John R. Gailey, Jr., York, for appellees.
    Before BECK, KELLY and HESTER, JJ.
   KELLY, Judge:

Romaine Smith appeals from an order determining that Dennis and Barbara Waltimyer owned a right-of-way by prescription as to the driveway located along the property between the parties’ residential lots. We affirm the order of the trial court.

The relevant facts as found by the trial court may be summarized as follows. In 1937, Ervin and Clyde Eckert, brothers, owned two adjacent lots and decided to construct a driveway between them with approximately half of the driveway located on each lot. They used the entire driveway in common.

In July of 1947, Clyde Eckert transferred title and possession of his land to Henry Kessler, Jr. Thereafter, Mr. Kessler used the driveway between the lots without requesting or receiving permission to use the portion of the driveway located on Ervin Eckert’s lot. In 1976, Mr. Kessler transferred title and possession of his lot to the Waltimyers. They, too, continued to use the portion of the driveway on Ervin Eckert’s lot without requesting or receiving permission to do so. Because Ervin Eckert continued to reside in the house on his lot throughout this period, the trial court found that he had actual notice of the use of the portion of the driveway on his lot by both Mr. Kessler and the Waltimyers.

In 1966, Ervin Eckert transferred title and possession of his lot to Mrs. Smith. Until 1984, both the Waltimyers and Mrs. Smith used the driveway in common without requesting or receiving permission to use the portion of the driveway located on the other’s lot.

In 1984, however, Mrs. Smith constructed a barrier down the property line obstructing the use of the driveway. The Waltimyers filed suit requesting a declaration of their right-of-way and removal of the barrier erected. Based upon the foregoing facts and this Court’s opinion in Orth v. Werkheiser, 305 Pa.Super. 576, 451 A.2d 1026 (1982), the trial court granted the relief requested. Post-trial motions were denied and this appeal followed.

On appeal, Mrs. Smith contends that the trial court erred in relying on our decision in Orth, and that because the Waltimyers failed to establish that the original mutual permissive uses of the Eckert brothers had ceased, adverse use was not established. She urges reconsideration of our rejection in Orth of the dicta from Margoline v. Holefelder, 420 Pa. 544, 218 A.2d 227 (1966), which had stated that even where there is no attempt to tack a prior use to meet the prescriptive period, a permissive use by a predecessor will be deemed to continue permissively by the successor until the contrary is shown. The Waltimyers, on the other hand, contend that Orth properly states the controlling law, and that the order of the trial court should be affirmed. We agree.

Our scope of review is limited. We are bound by findings of fact which are supported by the record, but not the trial court’s conclusions of law. We must have due regard for the trial court’s superior vantage and its prerogatives to access credibility and to believe all, part, or none of the evidence presented. Finally, we may not reverse absent a clear abuse of discretion or an error of law. See Walley v. Iraca, 360 Pa.Super. 436, 440-42, 520 A.2d 886, 889 (1987).

An easement or right-of-way by prescription arises by adverse, open, continuous, notorious, and uninterrupted use of the land for twenty-one years. Walley v. Iraca, supra, 520 A.2d at 889; Dunlap v. Larkin, 342 Pa.Super. 594, 599-601, 493 A.2d 750, 753 (1985); Hash v. Sofinowski, 337 Pa.Super. 451, 454-456, 487 A.2d 32, 34 (1985). The scope of the use during the prescriptive period determines the scope of the easement or right-of-way obtained, except with respect to a reasonable evolution of the use which is not unduly burdensome. Hash v. Sofinowski, supra, 337 Pa.Superior Ct. at 454-459, 487 A.2d at 34-35.

A use based upon permission cannot ripen into a prescriptive right unless the owner of the land is given clear notice that the character of the use has changed from a permissive use to an adverse use, and the adverse use then continues for the full prescriptive period. See Orth v. Werkheiser, supra, 451 A.2d at 1028 (collecting cases). A use will be presumed to be permissive in a variety of situations involving familial or fiduciary relationships. See e.g. Ingles v. Ingles, 150 Pa. 397, 24 A. 677 (1892) (grantor/grantee); Appeal of Norris, 71 Pa. 106 (1872) (executor/heirs); Clark v. Trindle, 52 Pa. 492 (1866) (family); Martin v. Jackson, 27 Pa. 504 (1856) (agent/principal); Hart v. Gregg, 10 Watts 185 (Pa. 1840) (co-heirs); Union Canal Co. v. Young, 1 Wh. 410 (Pa.1836) (vendor/vendee); Priester v. Milleman, 161 Pa.Super. 507, 55 A.2d 540 (1947) (bailor/bailee). However, when no special relationship exists between the parties, a sufficiently notorious use will be presumed to be enough to alert the owner of the land to an adverse claim, and it will be incumbent upon the owner of the land to establish the alleged permissive use. See Adshead v. Sprung, 248 Pa.Super. 253, 375 A.2d 83 (1977); see also Pierce v. Cloud, 42 Pa. 102, 114 (1862); Bellas v. Levan, 4 Watts 294, 295-301 (Pa.1835); Walley v. Iraca, supra, 360 Pa.Super. 436, 442-44, 520 A.2d 886, 890 (1987); Laskowski v. Raucheisen, 100 Pa.Super. 428, 431-32 (1930).

The fact that a predecessor in interest may have made similar use of the land in question by permission does not affect the adverse character of a successor’s use, because the predecessor’s prior permissive use involves merely a revokable personal license. By its very nature such a license is not alienable:

That a license is a personal privilege, and not assignable, is a well-settled principle. It is induced almost always by confidence in the character of the licensee. A man may well accord a privilege upon his lands to one person, which he would refuse to all others. Hence it is held that a personal license is not assignable, and that an assignment by a licensee determines his right.... The cases are numerous'in which it has been held that his assignment puts an end to the license.

Dark v. Johnston, 55 Pa. 164, 171 (1867); see also Dailey’s Chevrolet v. Worster Realties, 312 Pa.Super. 275, 281, 458 A.2d 956, 960 (1983); Hennebont Co. v. Kroger Co., 221 Pa.Super. 65, 69, 289 A.2d 229, 231 (1972); accord Orth v. Werkheiser, supra, 451 A.2d at 1029.

The general rule upon which Mrs. Smith relies, that a use commenced by permission remains permissive until notice of the change in the character of the use is given, simply does not apply to successors in interest, as the license created by the original grant of permission terminates by operation of law upon alienation. Thus, the casual dictum in Margoline v. Holefelder, supra, must give way to the clear command of Dark v. Johnston, supra, and its progeny Dailey’s Chevrolet v. Worster Realties, supra, Orth v. Werkheiser, supra, and Hennebont Co. v. Kroger Co., supra.

While a permissive use may arise from a “neighborly accommodation” with respect to a common driveway, no such accommodation was demonstrated here. Compare Adshead v. Sprung, supra, and Stevenson v. Williams, 188 Pa.Super. 49, 145 A.2d 734 (1958). The trial court specifically found that both Mr. Kessler and the Waltimyers used the driveway at their pleasure continuously for a period of approximately thirty-seven years without asking or receiving permission to do so. Though the Eckert brothers originally used the driveway in common, permissively, their mutual permissive uses terminated by operation of law when Clyde Eckert sold his lot to Mr. Kessler. See Orth v. Werkheiser, supra. Hence, adverse, open, notorious, and continuous use of the land in question for the prescriptive period was established.

Finally, we note that the order of the trial court is supported by sound policy as well as controlling precedent. With respect to this issue, Justice Holmes cogently explained:

A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be tom away without your resenting the act and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instincts of man. It is only by way of reply to the suggestion that you are disappointing the former owner, that you refer to his neglect having allowed the gradual dissociation between himself and what he claims, and the gradual association of it with another. If he knows that another is doing acts which on their face show that he is on the way toward establishing such an association, I should argue that in justice to that other he was bound at his peril to find out whether the other was acting under his permission, to see that he was warned, and, if necessary, stopped.

Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 476-77 (1897). The law of prescription thus acts to protect the legitimate, even instinctual, associations which inevitably arise from long, continued use or possession of land.

Order affirmed.

       A prior use which commenced by permission, however, could not be tacked for the purpose of fulfilling the prescriptive period unless, and only to the extent that, the prior permissive use had been transformed into an adverse use by appropriate notice to the owner of the land.


author: PER CURIAM:

text:
    556 A.2d 915
    COMMONWEALTH of Pennsylvania, Appellee, v. Harry Robert GIBBONS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1988.
    Filed April 7, 1989.

      Ralph T. Forr, Jr., Altoona, for appellant.
    Theresa Homady, Assistant District Attorney, Edens-burg, for Com., appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   PER CURIAM:

At the conclusion of a jury trial, the appellant was found guilty of harassment and corruption of minors. After the trial court denied the appellant’s timely filed post-verdict motions, he was sentenced to one to four years imprisonment and fined on the corruption of minors charge and forty-five to ninety days and fined on the harassment charge. This direct appeal was then timely commenced. For the reasons which follow, we are constrained to vacate the judgment of sentence and remand the matter for a new trial.

The appellant raises eight issues for our review. Because of our disposition of the first Issue presented, it is not necessary to reach the remaining issues. In Ms first issue, the appellant argues the trial court erred in permitting a psychologist, Dr. Maxine Kane, to testify concerning the behavior of incest victims in an attempt to bolster the credibility of the victim. In its brief to this Court, the Commonwealth acknowledges that “[h]er testimony concerned the general dynamics of child sexual abuse and the behavior patterns of its victims, particularly child incest victims.” Indeed, in responding to the argument in the appellant’s post-verdict motions, the trial court wrote:

Dr. Kane’s testimony was relevant, material and probative. She testified as an expert in the general realm of incest, but that testimony specifically related to matters in issue during the trial. Dr. Kane elicited knowledge with regard to the fear, anxiety, and betrayal of trust which victims experience. She testified to the secrecy and non-disclosure surrounding such activity, the difficulty of remembering details from surrounding dates and times and the inconsistency attached thereto. Further, she testified as to the disassoeiation and disguised presentation that occurs as a result of such abuse. (T. 1/12/88 pp. 138-140)
... Dr. Kane’s testimony was relevant and probative to matters in issue. Dr. Kane’s testimony was relevant and probative in that the jury could infer that gaps and inconsistencies in the victim’s testimony stemmed from the psychological dynamics of incest rather than from fabrication or fantasy.

Trial Court Opinion at 6. (Emphasis supplied)

We have reviewed the testimony of Dr. Kane and agree with the trial court's accurate observation as to its intended purpose. However, when the trial court’s opinion was prepared, it did not have the benefit of this Court’s recent decision in Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988), where a panel of this Court ruled similar testimony inadmissible.

In Emge, the Commonwealth’s psychologist, Dr. Anthony Mannarino, testified as to “[w]hether the changes in the child’s behavior in this case were ‘consistent with, generally speaking, a victim of child sexual abuse....’” Id., 381 Pa.Superior Ct. at 143, 553 A.2d at 76. The panel concluded that testimony “which matches up the behavior of known victims of child sexual abuse with that of an alleged victim can serve no purpose other than to bolster the credibility of the alleged victim, and this purpose is patently prohibited.” Id., citing, Commonwealth v. Rounds, 518 Pa. 204, 207, n. 4, 542 A.2d 997, 999, n. 4 (1988); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986).

The Commonwealth argues strenuously that Dr. Kane’s testimony was necessary because “[t]he [appellant’s] entire case rested on alleged inconsistencies with the victim’s behavior and words, and without the expert testimony prof-erred by Dr. Kane, the jury would have had no idea whether these were truly inconsistencies indicating the victim was a liar or whether ... the victim’s actions and words were representative of a mechanism of coping____” Appellee’s Brief at 8. We note that in the instant case, as opposed to what occurred in Commonwealth v. Emge, the psychologist did not testify that the accusing child’s behavior matched the behavior of known victims of child sexual abuse. Nevertheless, we can only conclude that the probative value of Dr. Kane’s testimony is clearly outweighed by the prejudicial impact of admitting it. “A defendant would find little solace in the knowledge that [his] conviction resulted from the jury’s belief that the accuser acted in a way that child sexual abuse victims are believed to act, as a class.” Commonwealth v. Emge, 381 Pa.Superior Ct. at 143, 553 A.2d at 76. In this case, as in Commonwealth v. Emge, supra, the jury had the opportunity to see, hear, and evaluate the child accuser’s testimony, as well as that of the other prosecution witnesses, in light of the appellant’s own testimony and that of the defense witnesses. “Our faith lies in the jurors’ ability to rely on the ordinary experience of life, their common knowledge of the natural tendencies of human nature — including those of a child — -and their observations of the character and demeanor of the opposing witnesses.” Commonwealth v. Emge, 381 Pa.Superior Ct. at 145, 553 A.2d at 77.

For the foregoing reasons, we are constrained to vacate the judgment of sentence and remand the matter for a new trial. Jurisdiction relinquished.

      . The appellant’s sentence for harassment was concurrent to his sentence for corruption of minors.