text:
    559 A.2d 939
    COMMONWEALTH of Pennsylvania v. David HIGBY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 30, 1988.
    Filed May 31, 1989.

      John H. Moore, Erie, for appellant.
    Brad Fowlk, Assistant District Attorney, Erie, for Com., appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Appellant appeals a Judgment of Sentence imposed following his conviction on numerous charges stemming from the sexual assault of two young girls. After a review of Appellant’s claims, we find it necessary to vacate the sentence imposed and award Appellant a new trial. Based upon our disposition, we will not address Appellant’s allegations of error pertaining to the trial court’s evidentiary rulings and Appellant’s request for a mistrial. However, we do find, contrary to Appellant’s claim, that the trial court properly denied Appellant’s motion to suppress and we rely upon the thorough discussion provided in the trial court opinion on this matter.

Initially Appellant asserts that the trial court erred in refusing his pre-trial request for discovery. Appellant filed motions for inspection of both Children’s Services Records and Rape Crisis Records. Following the dictates of the United States Supreme Court’s pronouncement in Commonwealth v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the trial court conducted an in camera inspection of the Children’s Services Records. The trial court refused to grant Appellant access to these records based upon its finding that the records contained “no material evidence of an exculpatory nature which would be subject to disclosure.” Trial Court Opinion at 3. Since the Supreme Court required “divulgence when a court of competent jurisdiction determines that the material for which production is sought is essential to the accused’s defense,” Commonwealth v. Carillion, 552 A.2d 279 (1988), we conclude the trial court complied with the law with respect to the Children’s Services Records.

The trial court was also presented with a motion for Inspection of Rape Crisis Records. The court denied Appellant access to these records citing the confidential privilege provided under 42 Pa.C.S.A. § 5945.1(b). In his motion Appellant averred that statements made by the alleged victims to the rape crisis center were in the Commonwealth’s possession. He stated that these items are discoverable pursuant to Pa.R.Crim.P. 305 and the Superior Court’s decision in Commonwealth v. Cacek, 358 Pa.Super. 381, 517 A.2d 992 (1986). Appellant was correct. In Cacek this court stated:

The statute [42 Pa.C.S.A. § 5945.1(b) ] is simply inapplicable in this matter. ‘It grants sexual assault counselors a privilege ...’ Commonwealth v. Samuels, 354 Pa.Super. [128] at 147, 511 A.2d [221] at 231 [(1986)].... Here, pursuant to Pa.R.Crim.P. 305, Appellant filed pre-trial Motion for discovery of information within the Commonwealth’s possession. 42 Pa.C.S.A. § 5945.1(b) does not grant the Commonwealth a privilege to prevent disclosure of discoverable items and information requested by a defendant pursuant to Pa.R.Crim.P. 305. In denying Appellant’s Motion, the trial court erred.

Id., 358 Pa.Superior Ct. at 384, 517 A.2d at 994.

As in Cacek, the Appellant in this case has averred certain statements were made to individuals at the Rape Crisis center by the alleged victims. He also maintained that these statements are in the Commonwealth’s possession. This is not a case where we must consider the trial court’s ruling with regard to the issuance of a subpoena duces tecum upon a rape crisis center. See: Commonwealth v. Wilson, 375 Pa.Super. 580, 544 A.2d 1381 (1988). Rather, we must only determine whether Appellant has a right to examine certain statements which are within the Commonwealth’s possession. Since the Commonwealth disputes Appellant’s contention that the victims’ statements are in its possession, we must remand this matter to the trial court to determine whether, in fact, these statements are in possession of the Commonwealth. If it is so found, then under the authority of Commonwealth v. Cacek, the trial court must grant Appellant’s discovery request.

Appellant has also asked us to review the testimony of Dr. Linda Fagenholz who was offered as an expert in the area of child sexual abuse. This witness was first asked “some questions about some general characteristics that are found among children who have been sexually abused.” N.T. at 150. When the doctor testified that her examination of the children revealed that they had trouble with time sequencing, but that their stories were “very consistent and definite,” defense counsel made a motion for a mistrial. N.T. at 157. The trial court instructed the jury to disregard the statement. N.T. at 159. Thereafter, the prosecutor asked hypothetical questions based upon testimony elicited by other witnesses which described the young girls specific character traits. The doctor was then asked if she had an opinion as to “whether those characteristics would be consistent with a child who has been sexually abused.” Dr. Fagenholz responded affirmatively and went on to explain her reasoning. N.T. 160-164.

Appellant objects to the admission of this testimony by asserting that it constitutes an improper invasion of the province of the jury. We find that recent caselaw supports Appellant’s position.

In Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988) the Court had an opportunity to consider whether an expert’s testimony regarding the victim’s affliction with “rape trauma syndrome” was admissible. The expert testified about a phenomenon of a “flashback” which occurs in persons who have suffered traumatic events. She further testified that she found the flashback symptom in the victim. The court remarked:

The crux of the testimony appears to be that the victim’s failure to identify the appellant two weeks after the rape is unremarkable, as she was in the acute phase of RTS [Rape Trauma Syndrome] in which a victim has difficulty performing even normal functions, and the in-court identification five years later is particularly credible, as it results from a flashback, with the mind operating like a computer. It is clear that the only purpose of the expert testimony was to enhance the credibility of the victim.

547 A.2d at 358.

The Supreme Court’s decision in Commonwealth v. Gallagher, Id. was cited recently by this court in Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988). There a psychologist was called as a witness for the Commonwealth. He testified, “in effect ... that the behavior of the alleged victim was precisely like the behavior of a victim of child sexual abuse.” Id. 553 A.2d at 77. Citing Gallagher the court found that the expert testimony denied the appellant a fair trial. Regarding the psychologist’s testimony, the court commented:

[T]he dynamics of child sexual abuse in terms of consistent patterns of behavior by children generally was never an issue in this case; Whether the changes in the child’s behavior in this case were “consistent with, generally speaking, a victim of child sexual abuse” would have little probative value, on the issue of whether Robert Emge, Sr. did, in fact, commit the specific offenses for which he was charged.

Commonwealth v. Emge, 553 A.2d at 76.

The rationale for the exclusion of such evidence was again recognized in Commonwealth v. Zamarripa, 379 Pa.Super. 208, 549 A.2d 980 (1988). The court explained:

[W]here an expert testifies that a complainant exhibits some of the symptoms of the syndrome, the suggestion is planted within the jurors minds that the complainant’s testimony is reliable and trustworthy. Thus, the jury would ultimately permit its fact finding and credibility weighing-functions to become supplemented by the observations of an expert witness.

549 A.2d at 981.

As in these cases, we find the expert’s testimony in the instant case to be inadmissible. The general patterns of behavior exhibited by children who have been sexually abused was not at issue in this case. The doctor’s testimony that certain personality and behavior characteristics, which other witnesses said they observed in these complainants, are found in sexually abused children served only to bolster the credibility of the alleged victims. Accordingly, we conclude that it was error for the court to permit this testimony and that Appellant is entitled to a new trial.

Judgment of Sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    559 A.2d 941
    DEER PARK LUMBER, INC., Appellee, v. C.B. MAJOR and Eunice Major, his Wife, their Heirs, Successors, Assigns, and all Persons, Firms, or Associations Claiming Right, Title or Interest from or under Them, Generally, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1989.
    Filed June 8, 1989.

      James R. Anzalone, Wilkes-Barre, for appellants.
    Helen R. Vanston, Tunkhannock, for appellee.
    Before BROSKY, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order entered by the Court of Common Pleas of Wyoming County denying appellants’ petition to open judgment. On appeal, appellants argue that the trial court erred by ordering service of appellee’s complaint by publication. Additionally, appellants claim that the trial court abused its discretion in denying their petition to open judgment on the basis that the petition was untimely. For the following reasons, we reverse.

On July 21, 1987, appellee instituted an action to quiet title to a parcel of real estate situated in Noxen Township, Wyoming County. On that same date, the trial court issued an order directing that service of the complaint be made by publication based upon an affidavit filed by Ronald Andrews, president of appellee, alleging that appellants were dead or, if living, their whereabouts were unknown. On August 21, 1987, the trial court directed that judgment by default be entered against appellants for failure to respond to the complaint, and further ordered that final judgment would be entered unless appellants brought an action in ejectment within thirty days. On September 24, 1987, after appellants failed to respond within the allotted time, judgment was entered in favor of appellee and against appellants, granting title to the parcel of land in the name of appellee.

On March 3, 1988, appellants filed a petition to open the default judgment. Pursuant to rule to show cause, the trial court ordered that depositions be taken and that a hearing be scheduled. After consideration of the testimony and facts presented, the trial court, by order dated August 10, 1988, denied appellants petition to open judgment. Appellants then filed the instant appeal.

Appellants first argue that the trial court erred in its determination that service by publication was proper. Appellants point to Rule 430(a) of the Pennsylvania Rules of Civil Procedure and stress that before service by publication is authorized, the plaintiff must state in an affidavit the reasons why personal service cannot be made as well as the nature and extent of the investigation utilized to determine the whereabouts of potential defendants. In the present case, appellants claim that the affidavit in support of service was defective on its face in that it failed to state the investigation undertaken to determine the whereabouts of any potential heirs to the property in question. According to appellants, such a defect renders the method of service invalid. We agree.

A petition to open a default judgment is an appeal to the court’s equitable powers, and the trial court’s disposition of the petition will not be disturbed absent an error of law or a manifest abuse of discretion. Romeo v. Looks, 369 Pa.Super. 608, 535 A.2d 1101 (1987), allocatur denied, 518 Pa. 641, 542 A.2d 1370 (1988); US. Dept. of Housing v. Dickerson, 358 Pa.Super. 23, 516 A.2d 749 (1986). In deciding whether to open the judgment, three factors should be considered and must coalesce: (1) the petition to open must be promptly filed; (2) the failure to enter an appearance or file a timely answer must be excused; and (3) the party seeking to open the judgment must exhibit a meritorious defense. Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Romeo v. Looks, supra; U.S. Dept. of Housing v. Dickerson, supra.

We need not, however, engage in the above analysis if the party seeking to open the judgment has not received valid service or notice of the proceedings. Under those particular circumstances, the court has no jurisdiction over the party and is powerless to enter judgment. See Rubin v. Nowak, 367 Pa.Super. 629, 533 A.2d 451 (1987); U.S. Dept. of Housing v. Dickerson, supra; Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979); Johnson v. Atlas Van Lines, 274 Pa.Super. 253, 418 A.2d 392 (1980). Thus, we need first determine whether the court-ordered substituted service used in this case was valid so as to empower the court to render its judgment.

Rule 410 of our rules of civil procedure provides in pertinent part:

Rule 410. Real Property Actions
(a) In actions involving title to, interest in, possession of, or charges or liens upon real property, original process shall be served upon the defendant in the manner provided by Rule 400 et seq.
******
(c) If service is made pursuant to an order of court under Rule 430(a), the court shall direct one or more of the following methods of service:
(1) publication as provided by Rule 430(b) ...

Pa.R.C.P., Rule 410, 42 Pa.C.S.A.

Turning to Rule 430, we find the following in pertinent part:

Rule 430. Service Pursuant to Special Order of Court. Publication
(a) If service cannot be made under the applicable rule the plaintiff may move the court for a special order directing the method of service. The motion shall be accompanied by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the defendant and the reasons why service cannot be made.
(b) (1) If service of process by publication has been authorized by rule of civil procedure or order of court, the publication shall be by advertising a notice of the action once in the legal publication, if any, designated by the court for the publication of legal notices and in one newspaper of general circulation within the county. The publication shall contain the caption of the action and the names of the parties, state the nature of the action and conclude with a notice____
(2) When service is made by publication upon the heirs and assigns of a named former owner or party in interest, the court may permit publication against the heirs or assigns generally if it is set forth in the complaint or an affidavit that they are unknown.

Pa.R.C.P., Rule 430, 42 Pa.C.S.A.

Our investigation of these recent statutes, which were adopted on June 20, 1985, and which have been in effect since January 1, 1986, has failed to provide us with any appellate decision construing their contents. Therefore, it is necessary for this Court to provide an interpretation before we can proceed with appellants’ arguments. When faced with such a task, our duty is to ascertain and effectuate the intention of the legislature. Estate of Osborne, 363 Pa.Super. 200, 525 A.2d 788 (1987). In so doing we are guided by the provisions of the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq. Under this Act we are mindful to follow the letter, and not the spirit, of the law when the wording of the statute in question is clear and free from ambiguity. Mowery v. Prudential Property & Casualty Insurance Co., 369 Pa.Super. 494, 585 A.2d 658 (1988); 1 Pa.C.S.A. § 1921(b).

As set forth above, Rules 410 and 430 are clear on their face. Rule 410 provides the general service provisions for actions regarding real property. Where service cannot be made under these provisions, for example, where a defendant cannot be located, a plaintiff may move the court for a special order directing the manner of service pursuant to Rule 430(a). Under this approach, a plaintiff must provide, along with the motion, an affidavit stating the nature and extent of the investigation undertaken to locate the defendant. The purpose of this procedure is to provide proof that a good faith effort has been made to effect service under normal methods. Only after such proof has been offered is the court authorized to direct publication or another method of substitute service.

In the case at bar, appellee did not file a motion requesting that service be accomplished by publication. Rather, appellee filed an affidavit along with its complaint stating that the whereabouts of appellants were unknown. This affidavit, drafted pursuant to former Rule 1064(c), failed to provide any indication of the types of procedures used to locate C.B. or Eunice Major or any of the appellants herein. Nevertheless, the trial court, without inquiring into the investigation undertaken to establish the whereabouts of any potential defendants, ordered service by publication. This was clearly error. Service by publication is the exception, not the rule, and can only be ordered provided the requirements of Rule 430(a) have been met. In this case, the record reveals that they have not.

Both the trial court and appellee argue that the proper procedure has been followed in this case. They claim that Rule 430(b)(2) authorizes a plaintiff to effectuate service of process by publication without compliance to the provisions of Rule 430(a). In short, it is posited that Rule 430 is comprised of two separate and distinct rules: section (a) and (b)(1), which require a motion and affidavit outlining the specific steps taken to locate a defendant before publication is authorized; and section (b)(2), which allows a plaintiff to proceed by publication merely by filing an affidavit along with the complaint that the whereabouts any potential defendants are unknown. We are compelled to disagree. As we interpret Rule 430, in order to avail oneself of the publication provisions outlined in section (b), the requirements of section (a) must first be met. We, therefore, reject appellee’s argument.

It is also argued by appellee that the investigation undertaken to locate the appellants, while not actually placed in its affidavit, was nevertheless sufficient under the rules to allow for service by publication. Appellee points to the testimony of Wayne Divis, a forester for appellee, and the deposition of Sally Ann Steele, the attorney for appellee at the time this action was commenced. A review of their respective testimonies reveals the steps utilized in ascertaining the heirs of C.B. and Eunice Major, which amounted to the investigation of the following Wyoming County records: deed books from 1889 to 1987; the tax assessment records; the taxpayer’s list; the Sheriff’s Deed Book; all will books; and finally, the voter’s registration list. From this investigation, appellee was able to locate a deed, dated October 28, 1889, wherein C.B. and Eunice Major conveyed a portion of land to one Albert Lewis, while specifically reserving the property that is the subject of this litigation for themselves. On the face of the deed, the address of the Major’s was listed as being in Lehman Township, which is located in neighboring Luzerne County. No effort was made by anyone in the employ of appellee to conduct an investigation in Lehman Township because, in the words of appellee, “if Eunice or C.B. Major were alive in 1987, they would have been more than one hundred years old.” Brief of appellee at 8. Appellee then concluded its investigation as being sufficient.

We do not share in the opinion of appellee that the aforementioned investigation was sufficient. The Note accompanying Rule 430(a) sets forth examples of good faith efforts to locate a defendant through regular means. It provides:

An illustration of good faith effort to locate the defendant includes (1) inquiries of postal authorities including inquiries pursuant to the Freedom of Information Act, 39 C.F.R. Part 265, (2) inquiries of relatives, neighbors, friends, and employers of the defendant, and (3) examinations of local telephone directories, voter registration records, local tax records, and motor vehicle records.

While by no means exhaustive, this Note is at least indicative of the types of procedures contemplated by the legislature when enacting Rule 430. In essence, it provides that more than a mere paper search is required before resort can be had to the publication provisions of Rule 430(b). In the case at bar, the record clearly demonstrates the need for such a requirement.

Charles Kovalick testified on behalf of appellants during the hearing regarding the petition to open. Mr. Kovalick, it seems, was also interested in the subject property, so much so that he had erected a hunting cabin on it in the hopes of establishing a claim against its rightful owner. During his testimony, Mr. Kovalick related an incident with Wayne Divis which occurred on the property in question in September of 1987. At that time, Kovalick was attempting to enter on the land in an effort to reach his cabin. Mr. Divis approached Kovalick and informed him that appellee had obtained title to the land and asked that he leave. Kovalick complied with this request.

Shortly thereafter, Kovalick along with his brother, drove to the Wyoming County Courthouse for the purpose of finding the owner of the property. While there, they located the same deed found earlier by appellee. Unlike appellee, however, Kovalick and his brother then proceeded to Lehman Township. Once there, they started their search at a cemetery where they were able to locate the grave of C.B. Major. From that point they were led to the home of Judith Dawe, great-grandaughter of the Major’s and one of appellants herein. Under the guise of obtaining permission to hunt on the subject property, Kovalick informed Ms. Dawe of the presence of appellee on the land. According to Kovalick, the entire process of locating Ms. Dawe took approximately one hour.

Though we certainly do not applaud his motive, Mr. Kovalick was able to do in one hour what appellee, through the efforts of its employee and attorney were unable to do — find an heir to C.B. and Eunice Major. While we hesitate to find that appellee was obligated to engage in exactly the same type of investigation that led Mr. Kovalick to Ms. Dawe, we do believe that an investigation was warranted in Lehman Township, the location listed for the last record owner of the subject property. We recognize, of course, that this was an unusual case. Apparently, the subject property had never been formally transferred, either by will or in an intestacy proceeding, nor had any real estate taxes been paid on it. Nevertheless, the fact that absolutely no inquiry was made outside of Wyoming County compels us to conclude that appellee did not conduct an adequate investigation designed to locate any potential heirs to the property. Therefore, we reject its claim to the contrary.

In light of the foregoing, what we hold today is that in order to effect service by publication pursuant to the provisions of Rule 430(b), the party must first file a motion, accompanied by an affidavit conforming to the requirements set forth in Rule 430(a). Because the appellee and the trial court failed to follow this procedure, we conclude that a default judgment should not have been entered. Under the present circumstances, we find that appellants were not properly served with notice of this action, therefore, the trial court had not obtained the requisite personal jurisdiction needed for entry of judgment. See U.S. Dept. of Housing v. Dickerson, supra, 358 Pa.Super. at 26-28, 516 A.2d at 751-752 (rules of civil procedure regarding service of process are to be strictly construed as they are essential to proper jurisdiction over the parties). Accordingly, we conclude that the trial court’s action in refusing to open the default judgment and allow the appellants to file an answer to the complaint constituted an abuse of discretion. Under these circumstances, we have no alternative but to reverse their order and remand for proceedings consistent with this opinion.

Reversed and remanded. Jurisdiction relinquished.

      . We note that appellants' claim goes to the facial validity of the judgment. Ordinarily, in order to attack a judgment on the basis that it is facially invalid, the proper procedure is to file a petition to strike, not open, judgment. See Fierst v. Commonwealth Land Title Insurance Company, 369 Pa.Super. 355, 535 A.2d 196 (1987), allocatur denied, 549 A.2d 135 (1988); Continental Bank v. Rapp, 336 Pa.Super. 160, 485 A.2d 480 (1984); Liquid Carbonic Corp. v. Cooper & Reese, 272 Pa.Super. 462, 416 A.2d 549 (1979). In its brief, appellee stresses this point and argues that appellants are precluded from challenging the validity of the affidavit of service. We disagree. While it is true that appellants’ petition directed the court to open rather than strike the judgment, it is one of appellants’ contentions that this defective service resulted in a lack of actual or constructive notice of the instant action. We are also aware that if appellants’ allegations are correct, the trial court was without power to enter judgment. Both circumstances form a proper basis for a petition to open judgment. U.S. Dept. of Housing v. Dickerson, 358 Pa.Super. 23, 516 A.2d 749 (1986); Liquid Carbonic Corp. v. Cooper & Reese, supra.

      . Former Rule 1064, rescinded June 20, 1985, effective January 1, 1986 was replaced by Rule 410. It provided in pertinent part:
      Rule 1064. Service
      ******
      (c) If a defendant is dead or his identity or whereabouts is unknown, and an affidavit to that effect is filed, the plaintiff may serve the defendant by publication in such manner as the court by local rule or special order shall direct. When service is made by publication, the court, upon affidavit that the heirs and assigns of a named former owner are unknown, may permit publication against the former owner and his heirs and assigns generally.
      Pa.R.C.P., Rule 1064, 42 Pa.C.S.A. (rescinded). Apparently it was the practice under this rule to merely file an affidavit stating that the whereabouts of the defendant were unknown. See e.g., Colavecchi v. Knarr, 311 Pa.Super. 58, 457 A.2d 111 (1983). Unfortunately for appellee, this rule had been without effect for over one and one-half years prior to commencement of this action.

      . While relating this incident during her testimony, Ms. Dawe stated that Kovalick never told her that appellee had actually obtained a judgment on the property and was claiming title thereto.

      . In light of our disposition of this issue, we need not address appellants’ second claim.


author: TAMILIA, Judge:

text:
    559 A.2d 947
    COMMONWEALTH of Pennsylvania, Appellant, v. Providence RODRIQUEZ.
    Superior Court of Pennsylvania.
    Argued March 30, 1989.
    Filed June 12, 1989.
    Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com., appellant.

      Elizabeth A. Savitt, Philadelphia, for appellee.
    Before MONTEMURO, TAMILIA and MONTGOMERY, JJ.
   TAMILIA, Judge:

This is a timely appeal by the Commonwealth of a trial court Order granting appellee’s motion to suppress physical evidence recovered during a warrantless search. The Commonwealth has properly certified the pre-trial suppression Order substantially handicaps the prosecution of this case, making this appeal a proper appeal from a final Order of court. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

On January 28, 1988 at 1:00 p.m. two Philadelphia police officers were conducting an undercover narcotics investigation. While driving down the street the officers observed appellee and another woman, Elida Santiago, on a sidewalk with appellee yelling “White tape, white tape,” which phrase indicated they were selling cocaine in bags sealed with white tape. The officers pulled up and Santiago approached to ask what they wanted. They handed her a prerecorded $20 bill and she gave it to appellee who entered 645 West Shiller Street after unlocking the door by using a key. Appellee reappeared within seconds and handed two bags to Santiago who then gave them to the officers. The officers kept the smaller $20 bag and returned the larger bag. After driving away, the officers field tested the substance in the bag and confirmed it was cocaine. The officers returned to the place of sale with other officers in a marked police car and approached appellee, who dropped the keys to the house when she saw them approaching her. As appellee was placed under arrest, two officers went to the house and inspected the premises through the windows of the house and concluded the house was abandoned because no curtains, window shades, or furniture could be seen. They entered with the keys appellee had dropped and discovered 93 bags of cocaine sealed with white tape, weighing a total of two pounds. The prerecorded $20 bill was also retrieved inside the house.

The Commonwealth’s sole issue on appeal is whether the warrantless search of the house was legal under the circumstances, requiring reversal of the trial court’s suppression Order. The Commonwealth argues that because the evidence established appellee did not own nor live in the vacant house in which the drugs were found and had abandoned the key which gave entry to the house just prior to her imminent arrest, the subsequent warrantless search was not an unreasonable governmental intrusion into any legitimate expectation of privacy. The Commonwealth urges the storing of narcotics in a vacant property without permission of the owner or anyone else authorized to allow entry does not establish a constitutionally protected right to privacy of possessions placed therein which would give rise to reasonable expectations that police would not enter the vacant house. Further, the Commonwealth contends the trial court’s ruling that “exigent circumstances” justifying the warrantless search were not present is erroneous considering the officers’ belief that others might be in the house at the time of appellee’s arrest.

In reviewing a suppression Order:

Our scope of review is limited primarily to questions of law. We are bound by the suppression court’s findings of fact, if those findings are supported by the record. In determining whether the findings of fact are supported by the record, we are to consider only the evidence of the appellees and so much of the evidence of the appellant which, as read in the context of the record as a whole, remains uncontradicted. It is for the suppression court as the trier of fact, rather than the reviewing court, to determine credibility.
However, we are “not bound by findings wholly lacking in evidence.” Nor are we bound by the suppression court’s conclusion of law.

Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212-13 (1986) (citations omitted). See Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986); Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

Appellee contends in her brief and at argument that she has “automatic standing” under Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), to challenge the search of the house and the seizure of the controlled substances and prerecorded $20 bill within. We find this reliance misplaced. In Sell our Supreme Court interpreted Article I, section 8 of the Pennsylvania Constitution as giving a broader scope of protection with regard to standing to challenge a search and seizure than the United States Supreme Court has construed in the fourth amendment. The Sell Court elected to continue the “automatic standing” rule it first adopted in Commonwealth v. Knowles, 459 Pa. 70, 327 A.2d 19 (1974). Here, appellee was charged with one count each of knowing or intentionally possessing a controlled substance, manufacture with intent to manufacture or deliver a controlled substance, and criminal conspiracy. Because the first two charges are possessory offenses, appellee initially has standing to challenge the search and seizure, however, as a matter of law, we find appellee abandoned the property seized, she has no standing to challenge the police search of the house and consequent seizure of the narcotics.

It is well-established that “no one has a standing to complain of a search and seizure of property that he has voluntarily abandoned.” Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976); Commonwealth v. Cihylik, 337 Pa.Super. 221, 226-28, 486 A.2d 987, 990 (1985). “The test for abandonment is whether the complaining party could retain a reasonable expectation of privacy in the property allegedly abandoned.” Commonwealth v. Sero, 478 Pa. 440, 452, 387 A.2d 63, 69 (1978); Cihylik, supra, 337 Pa.Superior Ct. at 226-28, 486 A.2d at 990. These principles were well-stated by the Supreme Court in Sell: [P]ersonal possessions remain constitutionally protected ... until their owner meaningfully abdicates his control, ownership or possessory interest therein.” Id., 504 Pa. at 67, 470 A.2d at 469. The relevant question becomes whether appellee’s throwing away of the keys to the abandoned house constitutes such a relinquishment of interest in the contents of the house so that appellee may no longer assert a reasonable expectation of privacy in its contents. We hold that it does.

Appellee had no ownership rights to the abandoned house other than her set of keys which allowed her access to the premises. By abandoning the keys when the officers approached, appellee effectively relinquished all rights she had in the premises and the items stored in the house were no longer protected by any expectation of privacy on appellee’s part. In Commonwealth v. Anderl, 329 Pa.Super. 69, 477 A.2d 1356 (1984), we found no reasonable expectation of privacy or interest in property existed when the defendant abandoned a satchel containing contraband by hiding it on the property of an unknown third party. Similarly, in Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984), we specifically found “automatic standing” under Sell does not apply when the defendant abandoned the seized property by either selling or voluntarily discarding the items prior to their seizure. Accordingly, we find appellee lacked standing as a matter of law to challenge the seizure of the narcotics and the prerecorded $20 bill. The Order suppressing the physical evidence seized during the warrantless search is reversed and the case is remanded for trial in accordance with this Opinion.

Jurisdiction relinquished.

      . See e.g. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) (reevaluating the "automatic standing” rule applied to alleged Fourth Amendment violations in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), which held the mere charge of a defendant with a possessory offense conferred standing to assert an alleged Fourth Amendment violation).


author: DEL SOLE, Judge:

text:
    559 A.2d 949
    COMMONWEALTH of Pennsylvania v. Phillip NUNO, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 20, 1989.
    Filed June 12, 1989.
    Glenn M. Goodge, Assistant Public Defender, Bethlehem, for appellant.

      Donald B. Corriere, District Attorney, Bethlehem, for Com.
    Before DEL SOLE, BECK and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Phillip Nuno, Appellant, was found guilty of Driving While Operating Privilege is Suspended or Revoked — Driving Under the Influence Related (75 Pa.C.S.A. § 1543(b)). He appeals from the order of the trial court raising one issue. We find this issue to be meritless and affirm the order of the trial court.

Nuno has an extensive history of motor vehicle code violations. His operating privilege has been suspended or revoked continuously since 1981. Following Nuno’s third major violation, all of which were unrelated to driving under the influence, he received notification that his operating privilege would be revoked for a period of five years, effective December 12, 1984. This revocation was to run consecutive to Nuno’s previous periods of revocation. On August 25,1984, Nuno was charged with Driving Under the Influence and he refused to submit to a chemical test of his breath. Consequently, on September 18, 1984, he received notice that his operating privilege would be suspended for an additional year, effective January 12, 1990. He was found guilty of Driving Under the Influence for the August 25, 1984 incident and he received notice on April 18, 1986 that his operating privilege would be revoked" for another two years, effective January 12,1991, for this violation. On August 8, 1987, he was stopped by a police officer and charged with a traffic signal violation, Driving Under the Influence and Driving While Under Suspension, D.U.I. Related. Nuno was found guilty of violating Driving While Operating Privilege is Suspended or Revoked, D.U.I. Related, and was sentenced to ninety days in jail.

Nuno’s sole issue is one of first impression for this court. He admits that at the time of his arrest on August 8, 1987, his operating privilege was revoked. He argues, however, that it was revoked under the five year revocation that began to run on December 12, 1984 which was not D.U.I. related. Accordingly, his operating privilege revocation and suspension for D.U.I. offenses would not begin to run until January 12, 1990. Because his operating privilege was revoked from 1984 to 1989 for non-D.U.I. related offenses, he argues, the trial court erred in finding him guilty of Driving While Under Suspension, D.U.I. Related.

75 Pa.C.S.A. § 1543(b) reads:

Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal (to submit to chemical testing)) or 3731 shall, upon conviction be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

Before a person can be convicted under § 1543(b) they must receive actual notice that their operating privilege has been revoked or suspended for a D.U.I. related offense. Commonwealth v. Gamble, 376 Pa.Super. 590, 546 A.2d 681 (1988). Nuno admits that he has received actual notice of his D.U.I. related suspension and revocation. He merely argues that this suspension and revocation has not yet begun to run and that he will not be able to violate § 1543(b) until January 12, 1990, when his D.U.I. related suspension and revocation do begin to run.

We find this argument to be completely untenable. Nuno has put together an unbroken string of operating privilege suspensions and revocations which began in 1981 and will last well into the next decade. He has shown total disregard for the regulations of the Department of Motor Vehicles as well as the laws of the Commonwealth. For eight years he has been stripped of his operating privilege yet he continues to use the roads of the Commonwealth, oblivious to his ever increasing list of suspensions and revocations. We will not reward such behavior by adopting Nuno’s argument today. To do so would allow him to escape punishment for driving while suspended, D.U.I. related, simply because he has incurred prior suspensions and revocations that must run before his D.U.I. suspension and revocation even begin.

We hold that when a person receives notice that their operating privilege is or will be suspended or revoked for a D.U.I. related offense, that person is subject to the penalties of § 1543(b). That person will be subject to the penalties of § 1543(b) throughout any current suspension or revocation and any subsequent suspensions or revocations until the end of their D.U.I. related suspension or revocation.

Order of the trial court affirmed. Jurisdiction relinquished.


author: ROWLEY, Judge:

text:
    559 A.2d 951
    COMMONWEALTH of Pennsylvania v. John PAYNE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 9, 1989.
    Filed June 14, 1989.

      Marilyn J. Gelb, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.
    Before ROWLEY, MONTEMURO and HOFFMAN, JJ.
   ROWLEY, Judge:

Appellant, now represented by his fourth lawyer, appeals the denial of relief under the Post Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq. (repealed) (hereinafter “PCHA”), following his conviction of first degree murder. Appellant argues only that his previous counsel on direct appeal was ineffective for failing to raise, brief and argue his exception to the trial court’s charge concerning appellant’s alibi evidence. The question presented by appellant’s exception to the charge is whether Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980) requires that the jury instruction on alibi testimony must include the language “even if not wholly believed.” For the reasons which follow, we hold that prior counsel were not ineffective because the trial court’s refusal to include the phrase in the instruction given in this case was not error.

At trial, defendant raised the defense of alibi, claiming to have been at his residence with his girlfriend at the time the murder occurred. In light of the testimony by appellant and his girlfriend, defense counsel requested that the trial court instruct the jury that “the alibi, even though not wholly believed, may be sufficient to raise a reasonable doubt,” citing Commonwealth v. Pounds, supra. The trial court denied the request and instead used the language of the proposed Pennsylvania Standard Jury Instruction 3.11 (Crim) ALIBI, as follows:

Members of the jury, obviously, the defendant cannot be guilty unless he was at the scene of the alleged crime. The defendant has offered evidence to show that he was not present at the crime but rather, he was with his girlfriend____
You should consider this evidence, along with all the other evidence in the case, in determining whether the Commonwealth has met its burden of proving beyond a reasonable doubt that a crime was committed, and that the defendant himself committed it.
The defendant’s evidence that he was not present, either by itself or together with other evidence, may be sufficient to raise a reasonable doubt of his guilt in your mind.
If you have a reasonable doubt of the defendant’s guilt, you must find him not guilty.

Following the jury’s verdict, trial counsel filed timely post-verdict motions which included an exception to the charge on alibi testimony. Trial counsel was permitted to withdraw and a new lawyer was appointed. This lawyer filed supplemental post-trial motions. All of appellant’s post-trial motions were denied by the trial court. In an opinion filed June 6, 1986, the trial court held that the instruction regarding the alibi evidence was adequate as read. A direct appeal was taken to this Court, but the issue of the court’s charge on alibi evidence was not raised by appellant’s second lawyer. In a memorandum decision filed April 14, 1987, this Court affirmed the judgment of sentence.

Appellant filed a pro se PCHA petition on September 29, 1987, in which he alleged numerous errors but did not include an objection to the trial court’s alibi instruction. A lawyer was appointed to represent appellant as PCHA hearing counsel, this being appellant’s third attorney. No amended PCHA petition was filed. After review by the trial court, appellant’s petition was denied without a hearing. See tr. ct. op. May 25, 1988. PCHA hearing counsel filed this appeal and then was permitted to withdraw.

Appellant’s fourth attorney, Marilyn J. Gelb, Esq., was appointed by the court on April 14, 1988. Attorney Gelb now argues that appellant’s PCHA hearing counsel was ineffective for failing to raise the ineffectiveness of appellant's direct appeal counsel for not raising the following issue: Whether the trial court, in formulating its charge to the jury on appellant’s alibi defense, erred in refusing to use the language “even if not wholly believed” from Commonwealth v. Pounds, supra, as requested by trial counsel? In proving ineffective assistance of counsel, a defendant must first demonstrate that the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). Because we find no merit in appellant’s argument concerning the alibi charge, counsel cannot be considered ineffective.

Our Court has addressed the precise issue now raised by appellant and has found no merit to it. We stated in Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984):

[W]e do not interpret Pounds as creating standard language for an alibi instruction. So long as the trial judge makes it clear that the defendant’s failure to prove an alibi defense is not tantamount to guilt, the Pounds safeguards are preserved.

Id., 336 Pa.Superior Ct. at 18, 485 A.2d at 406, quoted in Commonwealth v. Bright, 361 Pa.Super. 261, 267, 522 A.2d 573, 576 (1987), allowance of appeal denied, 517 Pa. 597, 535 A.2d 1056 (1987). In Johnson, as in the case at bar, language substantially similar to the proposed Pennsylvania Standard Jury Instruction on alibi was given. Our Court in Johnson found that language to be adequate.

In Pounds, however, no instruction on the defendant’s claimed alibi was given. Furthermore, in the recent case of Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989), defense counsel requested that the proposed Standard Jury Instruction on alibi be given, but the trial judge only referred to the alibi defense in a “fleeting” manner. Id., 520 Pa. at 293, 553 A.2d at 961. Only under those circumstances, when the proposed Standard Jury Instruction or its equivalent was not given, has the Supreme Court utilized the language advocated by appellant that “[t]he trial court’s failure to charge the jury that it should acquit if the Appellant’s alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime when it was committed was error.” Id., 520 Pa. at 294, 553 A.2d at 962.

The Supreme Court, in Pounds and Willis notes that the danger to be guarded against by the trial court is a perception on the part of the jury “that the failure to prove the [alibi] defense will be taken by the jury as a sign of the defendant’s guilt.” Willis, supra, 520 Pa. at 294, 553 A.2d at 962, quoting Commonwealth v. Pounds, 490 Pa. at 633-634, 417 A.2d at 603. The proposed Standard Jury Instruction, as given in this case, adequately protects defendants by emphasizing that the Commonwealth must meet its burden of proving beyond a reasonable doubt that a crime has occurred and that the defendant committed it. It is also clear that the jury was informed that appellant’s alibi evidence, either considered alone or in conjunction with other evidence, was sufficient to establish a reasonable doubt that could bar conviction. The Supreme Court has never specifically disapproved the proposed Standard Jury Instruction on alibi. Nor is there any suggestion in the Supreme Court’s decision in Commonwealth v. Willis, filed just four (4) months ago, that this Court’s analysis and application of its decision in Commonwealth v. Pounds, in Commonwealth v. Johnson, and Commonwealth v. Bright is inaccurate or disapproved. Therefore, we find no merit to the contention that the trial judge erred in refusing to incorporate the requested language from Pounds. Thus, appellant’s claim of ineffectiveness must fail.

Order affirmed.

      . Appellant’s second counsel raised only three issues on appeal: 1) Did the Commonwealth violate appellant’s rights in seeking a death-qualified jury? 2) Was the verdict against the weight of the evidence? and 3) Was trial counsel ineffective for failing to seek suppression of a photo array?


author: CIRILLO, President Judge:

text:
    559 A.2d 953
    COMMONWEALTH of Pennsylvania v. Jonathan MAPLE, Appellant.
    Superior Court of Pennsylvania.
    •Submitted Oct. 11, 1988.
    Decided June 8, 1989.

      James E. Mugford, Sr., Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and CERCONE and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County, dismissing without a hearing appellant Jonathan Maple’s petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (repealed and replaced by the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, effective April 13,1988). The dismissal was based on a “Finley disposition” wherein appointed counsel informed the PCHA court that “after interviewing the defendant and reviewing the record and the applicable law, it was his professional opinion that no issues of arguable merit existed upon which to amend the petition,” PCHA Court Opinion at 2, and sought leave to withdraw as counsel for Maple. The PCHA court undertook its own independent review of the record and the applicable law and, finding itself in agreement with counsel, dismissed the petition. Rather than granting counsel’s request to withdraw, however, the PCHA court instructed counsel to file an appeal on Maple’s behalf if such was his wish and then to petition for permission to withdraw.

Pursuant to the PCHA court’s order, counsel perfected the instant appeal and was permitted to withdraw. The PCHA court then appointed present counsel, James Edward Mugford, Sr., Esquire, to represent Maple on appeal despite its determination that the PCHA petition was frivolous. We now have the appeal and Mr. Mugford’s petition for leave to withdraw appearance before us for disposition. In his petition, counsel avers that he has conducted an extensive review of the record and the law not limited to the claims raised in the PCHA petition, that he has corresponded with Mr. Maple as to the matters he wished to raise, and that he is forced to conclude that the appeal is wholly frivolous. As to the appeal, counsel filed an Anders brief in which he formulates the issue on appeal to be whether the PCHA court erred in dismissing the pro se petition without a hearing and without allowing an amended petition. In the argument section of the brief he states the claims Maple asserted in his PCHA petition and details, based on his own review of the record and the law, why these issues are without even arguable merit. Counsel served copies of both the petition and the brief on Maple with instructions that if he wished to proceed on his own behalf he should do so as soon as possible by mailing his response to the address given for the Prothonotary of this court. No response has been received from Maple.

Starting with the petition to withdraw, we introduce our discussion with the conclusion that, in light of recent changes in the law governing the withdrawal of counsel from proceedings involving collateral attacks on criminal convictions, the appointment of second counsel after original PCHA counsel has been permitted to withdraw by Finley disposition is unnecessary and improper. This holding is based on an analysis of a series of recent cases beginning with the United States Supreme Court’s decision in Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), which catalyzed the review of this area of the law by announcing that there is no federal constitutional right to counsel at any stage of post-conviction proceedings. While Finley was pending on remand to this court sitting en banc for a determination of the PCHA petitioner’s right to counsel under state law, Commonwealth v. Perry, 373 Pa.Super. 422, 541 A.2d 388 (1988), was decided. The panel in Perry was faced, as are we, with appellate counsel’s petition to withdraw where prior counsel had been relieved by the PCHA court because of the frivolousness of the post-conviction claims for relief. After reviewing the decision in Pennsylvania v. Finley and considering the PCHA petitioner’s irrefutable right to the initial appointment of counsel, created by Pa.R.Crim.P. 1503, as limited by rule 1504, the panel suggested that it would be futile to require second counsel and this court to conduct an independent review of the record to determine whether the issues are frivolous where the PCHA court and first counsel have each already done such a review and independently concluded that the petitioner has no claims of even arguable merit.

Rather than proscribing the appointment of second counsel, however, the panel instead held that, “where prior counsel has been permitted to withdraw because the case is frivolous, subsequent appellate counsel, if so desired, is not required to utilize any formal procedures in order to withdraw, and does not have to continue representation on appeal [, ... although] we are not preventing the attorneys from finding and arguing new issues on appeal, if they choose to do so, and thus, the petitioner’s rights to counsel are not contravened.” Perry, 373 Pa.Super. at 427, 541 A.2d at 390. That the panel in Perry foresaw the continued appointment of second counsel in cases where first counsel was permitted to withdraw based on frivolousness seems clear, and its decision purports to change the practice in such cases only to the extent that it eliminates any procedural requirements should second counsel also wish to withdraw on that basis. Any other reading would undermine the panel’s conclusion that the petitioner’s rights to counsel are not contravened in light of the analysis in Pennsylvania v. Finley and the lack of any definitive statement by a Pennsylvania appellate court elucidating the scope of the statutory right to counsel in post-conviction proceedings.

Two and a half months after Perry was filed our supreme court, in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), was finally presented with the opportunity to “clarify the appropriate procedures under Pennsylvania law which govern withdrawal of appointed counsel in proceedings under the PCHA,” and concluded that “where the PCHA petitioner’s right to counsel is established by rule of this Court, Pa.R.Crim.P. 1503, 1504, ... the procedure followed in the Finley case accorded the PCHA petitioner all the protections incorporated in the right to appointed counsel in collateral proceedings under the PCHA.” Id., 518 Pa. at 494-95, 544 A.2d at 928. The procedure to which the court refers is described in Commonwealth v. Finley, 330 Pa.Super. 313, 317-18, 479 A.2d 568, 570 (1984), and can be summarized as follows: counsel presented the PCHA court with a letter explaining the nature and extent of his review, his conclusion that there were no issues to be raised that were of arguable merit, a list of the issues the appellant sought to raise, and an explanation as to why they were without arguable merit; the PCHA court conducted an independent review of the record and reached the same conclusion as counsel; counsel was relieved and the PCHA petition was dismissed.

What is important to our immediate discussion, however, is the lesson of Turner regarding a petitioner’s right to new counsel under Pa.R.Crim.P. 1503 after prior counsel has been permitted to withdraw. While the final act of the PCHA court in Finley was the appointment of new counsel to represent Mrs. Finley on appeal, there can be no doubt that the supreme court did not intend this step to be a part of the approved procedure or that it be repeated in subsequent cases. In stating the limited options available tó a PCHA petitioner after appointed counsel has been relieved under Finley, the court explained that when “counsel determines that the issues raised under the PCHA are meritless, and when the PCHA court concurs, counsel will be permitted to withdraw and the petitioner may proceed pro se, or by privately retained counsel, or not at all. Turner, 518 Pa. at 495, 544 A.2d at 928-29 (emphasis added); see also Commonwealth v. Finley, 379 Pa.Super. 390, 394, 550 A.2d 213, 215 (1988) (en banc) (“Once counsel for the petitioner determines that the issues raised under the PCHA are 'meritless,’ and the PCHA court concurs, counsel will be permitted to withdraw and the petitioner may proceed on his own or with the aid of private counsel to pursue a review of the ruling entered, ifhe/she so wishes.” (citing Turner, supra) (emphasis added)).

We therefore conclude that, when counsel has been appointed to represent a petitioner in post-conviction proceedings as a matter of right under the rules of criminal procedure and when that right has been fully vindicated by counsel being permitted to withdraw under the procedure authorized in Turner, new counsel shall not be appointed and the petitioner, or appellant, must thereafter look to his or her own resources for whatever further proceedings there might be. To the extent that Perry stands for a contrary result, it must be deemed overruled by Turner.

Also overruled by this substantial reshaping of the law surrounding collateral attacks on criminal convictions are the earlier Pennsylvania cases requiring the appointment of counsel for appeals from the denial of relief under the PCHA, as in Commonwealth v. Thompson, 431 Pa. 161, 245 A.2d 268 (1968) and Commonwealth v. Hoffman, 431 Pa. 160, 245 A.2d 256 (1968), where the statutory right to counsel was read to be equivalent to the federal right to counsel announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), concerning direct appeals. In Pennsylvania v. Finley, the United States Supreme Court rejected the argument that the federal constitution bestows a right to counsel in collateral proceedings, and our own supreme court, in Turner, limited the state-created right to counsel to a careful review of the record by competent counsel followed by an independent review by the court and its concurrence that the claims are frivolous. Thus, we hold as we do today despite dictum in Commonwealth v. Harris, 381 Pa.Super. 206, 218 n. 6, 553 A.2d 428, 434 n. 6 (1989) suggesting the need to continue to appoint new counsel in such cases until our supreme court has more explicitly addressed its prior decisions or has acted to amend Pa.R.Crim.P. 1503(b).

Because Mr. Mugford was appointed before the Turner decision proscribing such appointments was filed, we do not hold that the PCHA court acted improperly in making his appointment. However, because his petition to withdraw was not filed until after that decision was announced, we will consider it in light of the standards stated therein. We have already noted that the right to counsel in proceedings under the PCHA is fully vindicated when the petitioner is provided counsel who conducts a complete review of the record and determines that no issues of even arguable merit exist, and where the court, after its own review, agrees. It is clear from the averments in counsel’s petition that Maple has received all the representation to which he is entitled. Therefore, without conducting yet another review of the record to determine whether we agree with counsel and the PCHA court that the appellant’s claims for relief are frivolous, we grant counsel’s petition to withdraw.

Concerning the appeal itself, because Turner does not require an independent review of the record to determine whether the claims sought to be raised are frivolous, we will treat this appeal as we would any other and limit our review to those issues which have been properly preserved and argued to us. Where, as' here, the appeal is supported only by an Anders brief, however, the question remains whether the appellant must be afforded the opportunity to file a brief of his own. We necessarily answer in the affirmative because the right to pursue the appeal remains unaffected by Turner, even if the right to counsel has been vindicated by a proper withdrawal. Cf. Commonwealth v. Finley, 379 Pa.Super. at 393 n. 4, 550 A.2d at 215 n. 4 (the decision to allow withdrawal in the PCHA court is itself reviewable in the appellate court). In Commonwealth v. Whaley, 380 Pa.Super. 25, 550 A.2d 1345 (1988), when faced with an original petition to withdraw filed for the first time on appeal, we granted the petition and informed the appellant that if he wished to proceed further with the appeal he must do so pro se or with private counsel. It was only after he failed to take any action within the time afforded him, either by filing a pro se brief or informing us that he intended to retain counsel, that the appeal was dismissed. We are mindful that counsel in Whaley was seeking to withdraw from a proper appointment and that it was only after we concurred with second counsel that the appeal was frivolous that the right to counsel ceased, thus distinguishing Whaley from the case where an appellant was not entitled to the appointment from which counsel is relieved. In most instances, however, this will be a distinction without a difference because, whatever the lack of entitlement to counsel, the fact remains that when counsel is appointed the effect is to instill in the mind of the appellant a belief that his interests are being protected without the need for participation on his part. Thus, whenever appellate counsel is permitted to withdraw on the grounds that his appointment was improper under Turner, the court must determine whether the appellant has been given the opportunity to proceed on his own behalf.

Our review of the instant record convinces us that, in light of the repeated warnings of counsel to the contrary, a belief that his interests were being protected by counsel could not reasonably have lingered in Mr. Maple’s mind. First, at the same time that counsel filed his Anders brief with the court he also forwarded a copy to Maple with a cover letter indicating the significance of the conclusions reached in the brief and instructing Maple that if he wished to file a brief of his own he could do so, but that it must be mailed to the address given for the Prothonotary of this court by a stated date. Maple elected to take no action. Thereafter, when counsel filed his petition to withdraw, he again forwarded a copy to Maple with instructions that any objection or response must be mailed to the court as soon as possible. Once more, nothing was received. From his silence we conclude that Mr. Maple is content to have us review his appeal based on what we have before us. Cf. Craig v. Pennsylvania Board of Probation and Parole, 93 Pa.Comwlth. 586, 502 A.2d 758 (1985) (in considering first petition to withdraw in appeal from parole revocation, if the appellant fails to respond to Anders brief within 30 days the court may proceed).

What we have before us is a notice of appeal from the order of the PCHA court dismissing Maple’s PCHA petition and counsel’s Anders brief presenting the single issue whether the PCHA court erred in dismissing the pro se petition without the filing of an amended petition and a hearing thereon. What we do not have is any argument in favor of this issue because the remainder of counsel’s brief is dedicated to explaining why the PCHA court did not err inasmuch as there were no possible claims of even arguable merit to be raised. An issue identified on appeal but unsupported by argument in the brief must be deemed to have been abandoned, Commonwealth v. Jackson, 494 Pa. 457, 459 n. 1, 431 A.2d 944, 945 n. 1 (1981); Commonwealth v. Gibbons, 379 Pa.Super. 285, 295, 549 A.2d 1296, 1301 (1988); Pa.R.A.P. 2119, so, in light of Maple’s silence, our only recourse is to affirm the order of the PCHA court.

Based on the foregoing, we grant counsel’s petition to withdraw from representation and affirm the PCHA court’s order dismissing the PCHA petition without a hearing.

CERCONE, J., concurs in the result.

      . There is language in the Perry opinion to the effect that "we are not creating new procedures [here]; rather, we are merely implementing and enforcing the existing Rules of Criminal Procedure with reference to appointment of counsel for representation on frivolous appeals." Perry, supra, 373 Pa.Superior Ct. at 428, 541 A.2d at 391. While this might be interpreted as expressing an intent to prohibit the appointment of new counsel after the PCHA court has found the petitioner's claims to be frivolous, the panel cannot have intended such a reading because the rules of criminal procedure make no reference to the appointment of counsel in cases involving frivolous petitions. Although the PCHA itself did provide that “[t]he appointment of counsel shall not be required if the petitioner’s claim is patently frivolous and without trace of support in the record,” 42 Pa.C.S. § 9551(b), the rules of criminal procedure, which supercede the PCHA, see Pa.R.Crim.P. 1507, permit the withholding of the appointment of counsel only when the petition involves issues all of which have been finally determined adversely to the petitioner in counseled proceedings on a prior petition. Pa.R.Crim.P. 1504.

      . Recognizing that the initial request to withdraw in PCHA proceedings could just as easily arise on appeal as before the PCHA court, see Commonwealth v. Rauser, 367 Pa.Super. 370, 389-91, 532 A.2d 1191, 1201 (1987) (per Cirillo, P.J., and Rowley, J. and McEwen, J. concur in result and dissent) (Rowley, J. dissenting, "Frequently the petition to withdraw is not filed until an appeal has been taken”); Common

        wealth v. Whaley, 380 Pa.Super. 25, 550 A.2d 1345 (1988) (discussed, infra, in text), the supreme court directed that “[t]he same procedure should be followed at any stage of the collateral proceedings, whether in a trial or appellate court.” Turner, 518 Pa. at 495, 544 A.2d at 929.

      . While it is true that appellate counsel was appointed in Whaley only after PCHA counsel was permitted to withdraw, it is not clear from the Whaley opinion that PCHA counsel was relieved based on a Finley determination of frivolousness, and we cannot assume that such was the case. Even under Turner, then, the petitioner’s entitlement to counsel continued "until final judgment, including any proceedings upon appeal from a denial of collateral relief,” Pa.R.Crim.P. 1503(b), making the appointment of second counsel to pursue the appeal both required and proper.

      . This problem will quickly disappear when it is no longer the practice to appoint new counsel after prior counsel has been permitted to withdraw under Turner. We nevertheless can expect to continue to see such petitions during the transition period.


text:
    560 A.2d 148
    In re ESTATE OF Mary Lou KEISER, Deceased. Appeal of Benjamin TERCHA.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1989.
    Filed May 22, 1989.
    Reargument Denied July 6, 1989.

      Leon A. Mankowski, Philadelphia, for appellant.
    Richard C. Buss, Whitehall, for appellee.
    Before BROSKY, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the trial court’s order affirming the probate of a copy of an unsigned, undated, and unwitnessed writing as the will of Mary Lou Keiser.

In 1971, a Philadelphia attorney prepared a will for Mrs. Keiser. Mrs. Keiser then received and signed the original will. Thereafter, her signature was witnessed by her neighbors, George and Elizabeth Ruppert.

For the next six years, Mrs. Keiser kept the original will in a safe in her home in Philadelphia. In December of 1977, however, Mrs. Keiser moved from Philadelphia to Emmaus, Pennsylvania, where she died on January 21, 1978. Before her move to Emmaus, Mrs. Keiser informed her neighbor, Mrs. Ruppert, that she had placed the will in a tan metal box, which she would use to transport important papers to Emmaus. Following her death, this same box was removed from Mrs. Keiser’s apartment by her son, appellant Benjamin Tercha. The son testified that he found various bank books, insurance policies, and other documents in the box but that the box did not contain his mother’s will. The original will of Mrs. Keiser has never been located; therefore, an unsigned copy of the will prepared in 1971 was offered for probate. This writing was admitted to probate as the Last Will and Testament of Mrs. Keiser by the Register of Wills of Lehigh County, Pennsylvania, in October of 1978. The disputed document gave one-half of the estate to George and Elizabeth Ruppert and one-half to Benjamin Tercha.

The record also indicates that sometime after 1974, Mrs. Keiser indicated to Mrs. Ruppert that she was considering removing her son, Mr. Tercha, from her will. Additionally, there was testimony that shortly before Mrs. Keiser’s death, she had a conversation with a friend which indicated that her will had as its beneficiaries the Rupperts and Mrs. Reiser’s grandchildren. This conversation, however, made no mention of Mr. Tercha’s status as a beneficiary. Also, Mrs. Reiser’s sister testified that she received a letter from Mrs. Reiser which demonstrated her intent to visit an attorney on January 19, 1978. The letter also stated that the Rupperts were the sole beneficiaries of the will.

Mr. Tercha filed exceptions to the orphan’s court order which served to dismiss his appeal from the decree of the Register of Wills admitting to probate the disputed writing. Mr. Tercha is Mrs. Reiser’s only intestate heir; and if successful in proving that the writing admitted to probate is not the last will and testament of Mrs. Reiser, Mr. Tercha will take the entire estate by intestacy.

On appeal, Tercha frames the issue for our review in the following terms: “Did not the Learned Trial Judge err in confirming the probate of an unsigned, unwitnessed and undated copy of a will as the Last Will and Testament of the decedent?” In sum, Tercha contends that the document admitted to probate by the register of wills did not conform with the provisions of the Wills Act.

The Probate, Estates and Fiduciaries Code provides that every will must be in writing and signed by the testator at the end of the will. 20 Pa.C.S. § 2502. As such, an instrument which is not signed, as required by statute, cannot be given effect as a will. Matter of Estate of Coniglio, 324 Pa.Super. 527, 472 A.2d 205 (1984); In re Sciutti’s Estate, 371 Pa. 536, 92 A.2d 188 (1952).

Judicial precedent, however, has carved out an exception for a “lost will.” In re Murray’s Estate, 404 Pa. 120, 171 A.2d 171 (1961). In order to establish the existence of a lost will which was in the custody of the testatrix prior to her death, the proponent of the will must overcome the presumption that the testatrix destroyed or revoked her will. Id. As such, the proponent of the will must prove the following factors by utilizing evidence which is positive, clear, and satisfactory: (1) that the testatrix duly and properly executed the original will; (2) that the contents of the executed will were substantially the same as on the copy of the will presented for probate; and (3) that the testatrix had not destroyed or revoked her will prior to her death. Michell v. Low et al., 213 Pa. 526, 63 A. 246 (1906). Declarations of intent, condition, and circumstances of family are insufficient to establish these factors and thus rebut the existent legal presumption. Gardner v. Gardner et al., 177 Pa. 218, 35 A. 558 (1896). Accordingly, a court will not weigh the probability of the decedent’s wishes or otherwise speculate as to the motives which may or may not have influenced the testatrix in the direction of intestacy. O’Neill’s Estate, 58 Pa.D & C 351 (1946).

A court may, however, entertain evidence as to the fact that hostile heirs had access to the testatrix’s will before its alleged disappearance. Hodgson’s Estate, 270 Pa. 210, 112 A. 778 (1921). Nevertheless, the mere fact that hostile heirs had such access to the will and a motive to destroy the will is insufficient to create the presumption that the will was destroyed by someone other than the testatrix without the testatrix’s knowledge. Id.

Upon review of the instant case, it is evident that the will was within Mrs. Reiser’s custody upon her death. As such, the Rupperts had the burden of establishing the three factors to support a finding that the will was lost. Taken individually, Mr. Tercha does not contest the Rupperts’ ability to meet the first factor, namely, that Mrs. Reiser duly and properly executed the will. As such, this Court shall focus on the Rupperts’ ability to establish the second and third factors.

The Rupperts presented little evidence to establish that the contents of the original will were substantially similar to the contents of the will presented for probate, and that Mrs. Reiser had not revoked or destroyed her will prior to her death. Essentially, the evidence presented by the Rupperts served to describe Mrs. Reiser’s relationship with Mr. Tercha. Further, Mrs. Ruppert testified as to a conversation she had with Mrs. Reiser in 1974, wherein she persuaded Mrs. Reiser to keep Mr. Tercha in the will. Additionally, the Rupperts presented evidence which effectively established that Mr. Tercha was in Mrs. Reiser’s apartment after her death, at which time he had access to the will. Taken as a whole, this evidence does not clearly and satisfactorily rebut the presumption needed for the will to have been admitted to probate.

The evidence regarding Mrs. Reiser’s relationship with Mr. Tercha is insufficient to rebut this presumption, as is the content of a conversation between Mrs. Ruppert and Mrs. Reiser which took place four years before Mrs. Reiser’s death. Gardner, supra. Moreover, the fact that Mr. Tercha had access to Mrs. Reiser’s will after her death and had a motive to destroy the will does not create the presumption that Mr. Tercha destroyed the will. Hodgson’s Estate, supra. As such, the will should not have been admitted to probate, and the trial court erred in affirming its admission to probate.

Accordingly, this Court reverses the order of the trial court.

      . The law applicable to our decision does not simply provide guidance, it binds us tightly and precludes any consideration of notions which may be equitable in character.


author:
WIEAND, Judge:
      TAMILIA, Judge,

text:
    560 A.2d 151
    CREEGER BRICK AND BUILDING SUPPLY INC., and Donald H. Creeger and Marjorie Creeger, his wife, Appellants, v. MID-STATE BANK AND TRUST COMPANY, SEDA—Council of Governments, Community Development Corporation, Joint Rail Authority and Local Development Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1988.
    Filed May 15, 1989.
    Reargument Denied July 13, 1989.

      Nora A. Hackett, Pittsburgh, for appellants.
    Anthony J. Gerace, Jr., State College, for Mid-State Bank, appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a borrower has stated a legally cognizable cause of action against a lending institution which, although it has not violated the terms of its loan agreement, has allegedly failed to deal with its borrower in good faith. The trial court held that the averments of the complaint were insufficient to state a cause of action and sustained preliminary objections in the nature of a demurrer. We agree and affirm.

A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. McGaha v. Matter, 365 Pa.Super. 6, 8, 528 A.2d 988, 989 (1987); Pike County Hotels, Corp. v. Kiefer, 262 Pa.Super. 126, 133, 396 A.2d 677, 681 (1978). It tests the legal sufficiency of the challenged complaint and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief may be granted. Mudd v. Hoffman Homes For Youths, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988). If there is any doubt as to whether a claim for relief has been stated, the trial court should resolve it in favor of overruling the demurrer. Mull v. Kerstetter, 373 Pa.Super. 228, 229-230, 540 A.2d 951, 951 (1988).

The complaint in this case discloses that in 1983 Creeger Brick and Building Supply Inc. (Creeger, Inc.) purchased the Mt. Savage Refractories plant in Winburne, Centre County, intending to rehabilitate the facility and reopen a brick manufacturing plant. The principal financing was obtained in the form of a Small Business Administration loan from Mid-State Bank and Trust Company (Mid-State Bank) in the amount of two hundred and fifty thousand ($250,000.00) dollars. The Small Business Administration guaranteed ninety (90%) percent of this loan, which was also secured by a mortgage on the plant and on three residential properties owned by Donald Creeger, the president and sole shareholder of Creeger, Inc., and his wife, Marjorie Creeger. The Creegers contributed two hundred and forty thousand ($240,000.00) dollars of their own money to the venture and borrowed additional funds from the Centre County Commissioners/Department of Community Affairs, SEDA — Council of Governments, Moshannon Valley Development Fund, and the Phillipsburg Association of Commerce. All such loans were subordinated to the principal loan made by Mid-State Bank.

The plant did not become operational until October 1, 1984 and, being seasonal in nature, closed for the winter months on November 22, 1984. It did not begin producing bricks again until February 15, 1985. Because of the delay in attaining full production, Creeger, Inc. suffered a cash shortage. In March, 1985, the business applied for a line of credit from Mid-State Bank in order to obtain needed working capital. The Bank refused to advance further funds. Donald and Marjorie Creeger then requested that one of their residences be released from the lien of the mortgage so that it could be sold. The Bank initially refused, but ultimately agreed to do so upon conditions which the Creegers could not meet. When Creeger, Inc. found a new lender who was willing to purchase ninety (90%) percent of Mid-State Bank’s loan and make additional advances, Mid-State Bank refused to assign such an interest. On July 8, 1986, the Small Business Administration notified Creeger, Inc. that Mid-State Bank had demanded, and it had made, payment under its loan guarantee. Thereafter, Creeger, Inc. suffered financial collapse.

Creeger, Inc., as well as Donald and Marjorie Creeger, instituted suit against the lenders who had provided the funds with which they had rehabilitated the plant and started production. In Counts I and II of the Complaint, the plaintiffs alleged that Mid-State. Bank was liable to them because, although it had not breached any specific provision of the loan agreement, it had failed to deal with the borrowers in good faith. More specifically, it was alleged, Mid-State Bank had failed to deal with plaintiffs in good faith in the following respects:

(a) Failing to provide [Creeger, Inc.] with a line of credit;
(b) Establishing a commercially unreasonable method in which [Creeger, Inc.] was required to draw upon borrowed funds in the course of acquiring equipment and repairing [Creeger, Inc.’s] plant;
(c) Failing to promptly release it’s mortgage against Plaintiff Creeger and Plaintiff Marjorie Creeger, [sic] Pittsburgh property to allow additional working capital to be provided to [Creeger, Inc.];
(d) Failing to cooperate with Plaintiff Creeger and [Creeger, Inc.] in their effort to obtain supplemental financing;
(e) Over-collateralizing it’s loan to [Creeger, Inc.];
(f) Failing to advise [Creeger, Inc.] and Plaintiff Creeger of it’s demand for payment from the SBA on the SBA’s guarantee of [Creeger, Inc.] and Plaintiff Creeger’s loan with Defendant Bank;
(g) Taking the position that [Creeger, Inc.] was not able to produce good and marketable brick and advising the subordinated lenders of the same when the same was in fact not true.

Section 205 of the Restatement (Second) of Contracts suggests that “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” A similar requirement has been imposed upon contracts within the Uniform Commercial Code by 13 Pa.C.S. § 1203. The duty of “good faith” has been defined as “[h]onesty in fact in the conduct or transaction concerned.” See: 13 Pa.C.S. § 1201; Restatement (Second) of Contracts § 705, Comment a. Where a duty of good faith arises, it arises under the law of contracts, not under the law of torts. AM/PM Franchise Association v. Atlantic Richfield Co., 373 Pa.Super. 572, 579, 542 A.2d 90, 94 (1988). See also: Clay v. Advanced Computers Applications, Inc., 370 Pa.Super. 497, 505 n. 4, 536 A.2d 1375, 1379 n. 4 (1988), allocatur granted, 518 Pa. 647, 544 A.2d 959 (1988).

In this Commonwealth the duty of good faith has been recognized in limited situations. Most notably, a duty of good faith has been imposed upon franchisors in their dealings with franchisees. See: Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978); Loos & Dilworth v. Quaker State Oil Refining Corp., 347 Pa.Super. 477, 500 A.2d 1155 (1985). It has also been imposed upon the relationship between insurer and insured. See: Gray v. Nationwide Mutual Ins. Co., 422 Pa. 500, 223 A.2d 8 (1966); Gedeon v. State Farm Ins. Co., 410 Pa. 55, 188 A.2d 320 (1963). In Germantown Manufacturing Co. v. Rawlinson, 341 Pa.Super. 42, 491 A.2d 138 (1985), the Superior Court implied that there may also be a duty of good faith in connection with an employer’s attempt to recoup theft losses from the wife of an employee who was responsible for the thefts. See also: Baker v. Lafayette College, 350 Pa.Super. 68, 504 A.2d 247 (1986) (employer had limited obligation to act in good faith in reviewing professional teacher’s performance).

Conversely, the Supreme Court of Pennsylvania has refused to impose a duty of good faith which would modify or defeat the legal rights of a creditor. Heights v. Citizens National Bank, 463 Pa. 48, 342 A.2d 738 (1975). Other courts have also refused to apply a duty of good faith to alter or defeat the rights of a creditor which have been granted by law or contract. Thus, in Layne v. Fort Carson National Bank, 655 P.2d 856 (Colo.App.1982), the Colorado Court of Appeals held that it was not a breach of the requirement of good faith for a secured lender to refuse a borrower’s request for consent to sell collateral. And in Schaller v. Marine National Bank of Neenah, 131 Wis.2d 389, 388 N.W.2d 645 (1986), the Court of Appeals of Wisconsin held that a bank did not breach a duty of good faith by refusing to honor a customer’s overdrafts or notify him before dishonoring them. See also: Wagner v. Benson, 101 Cal.App.3d 27, 161 Cal.Rptr. 516 (1980) (not breach of good faith for secured lender to withhold information about management of borrower’s investment). But see: K.M.C. Co. v. Irving Trust Co., 757 F.2d 752 (6th Cir.1985) (lender had good faith duty to give borrower notice before refusing to advance further funds under financing agreement where established maximum credit limit had not been reached); Skeels v. Universal C.I.T. Credit Corp., 335 F.2d 846 (3rd Cir.1964) (lender violated duty of good faith by repossessing automobiles despite repeated acquieseences in late payments and assurances of additional financing); First National Bank in Libby v. Twombly, 689 P.2d 1226 (Mont. 1984) (lender breached duty of good faith by accelerating due date of borrower’s loan and exercising offset against borrower’s checking account). See generally: Anderson, Uniform Commercial Code § 1-203.

It seems reasonably clear from the decided cases that a lending institution does not violate a separate duty of good faith by adhering to its agreement with the borrower or by enforcing its legal and contractual rights as a creditor. The duty of good faith imposed upon contracting parties does not compel a lender to surrender rights which it has been given by statute or by the terms of its contract. Similarly, it cannot be said that a lender has violated a duty of good faith merely because it has negotiated terms of a loan which are favorable to itself. As such, a lender generally is not liable for harm caused to a borrower by refusing to advance additional funds, release collateral, or assist in obtaining additional loans from third persons. A lending institution also is not required to delay attempts to recover from a guarantor after the principal debtor has defaulted. Finally, if the bank in this case falsely represented appellants’ financial circumstances to other creditors for the purpose of damaging appellants’ ability to continue doing business, appellants may have causes of action in tort for slander, misrepresentation, or interference with existing or prospective contractual relations. There is no need in such cases to create a separate tort for breach of a duty of good faith. See: AM/PM Franchise Association v. Atlantic Richfield Co., supra. See also: Forms, Inc. v. American Standard, Inc., 546 F.Supp. 314 (E.D.Pa.1982), aff'd, 725 F.2d 667 (1983) (no need for additional remedy where tort of misrepresentation provides adequate remedy); D’Ambrosio v. Pennsylvania National Mutual Casualty Ins. Co., 494 Pa. 501, 431 A.2d 966 (1981) (court refused to recognize separate cause of action for breach of good faith where adequate remedy was provided under Unfair Insurance Practices Act); Standard Pipeline Coating Co. v. Solomon & Teslovich, Inc., 344 Pa.Super. 367, 496 A.2d 840 (1985) (no need for separate tort remedy where alleged breach of contract committed for purpose of driving contracting party out of business).

We conclude, therefore, that appellants failed to state a legally enforceable cause of action against the bank for failure to deal with its borrower in good faith. The trial court did not err when it sustained preliminary objections in the nature of a demurrer and dismissed the complaint.

Affirmed.

TAMILI A, J., files a concurring statement.

TAMILIA, Judge,

concurring statement:

I concur in the result. While in this case I believe the majority properly held there was no breach of good faith made out in the appellants’ complaint, I disagree with the broad holding by the majority that no cause of action exists for a breach of duty to deal with a lender in good faith. As detailed in the majority Opinion, the duty of good faith has been recognized in some situations (franchisors dealing with franchises, Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978); Loos v. Dilworth v. Quaker State Oil Refining Corp., 347 Pa.Super. 477, 500 A.2d 1155 (1985)). The fact that the Supreme Court in Heights v. Citizens National Bank, 463 Pa. 48, 342 A.2d 738 (1975), refused to alter or defeat the rights of a creditor controlled by a contract does not mean that in a given case the inherent standard of duty of good faith contained in every contract might not support an action for breach of that duty.

For the above reason, I would not foreclose such an action if the facts of the case would merit it in the case of a lender dealing with a creditor.