text:
    679 A.2d 1297
    COMMONWEALTH of Pennsylvania v. Michael JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 25, 1996.
    Filed July 10, 1996.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.

      Peter J. Gardner, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTEMURO , JJ.

       Retired Justice assigned to Superior Court.

   JOHNSON, Judge.

In this appeal, we are asked to determine whether the trial court erred in denying Michael Jones’s writ of certiorari where Jones was not brought to trial within the 120-day time period prescribed by Pa.R.Crim.P. 6013(a)(2). Because we find that the Commonwealth failed to establish that it acted with due diligence in bringing the case to trial, we reverse and remand this matter to Municipal Court with directions to discharge Jones.

On September 15, 1994, Jones was arrested and charged with violations of the Uniform Firearms Act. Jones was arraigned the following day. On November 2, 1994, the case was listed for a status hearing in Municipal Court. A second status listing was scheduled for November 30, 1994, in order to complete pre-trial discovery. A defendant must be brought to trial within 120 days of his preliminary arraignment under Pa.R.Crim.P. 6013(a)(2). Thus, to comply with Rule 6013, Jones should have been brought to trial by January 13, 1995. Jones’s trial, however, was set for January 24, 1995.

Jones made an oral pre-trial motion for a dismissal of the charges on the grounds that the Commonwealth had violated Rule 6013. Jones’s motion was denied by the Municipal Court. Following a stipulated bench trial, Jones was convicted of two counts of violating the Uniform Firearms Act and was sentenced to eighteen months’ probation. Jones subsequently filed a petition for a writ of certiorari to the Court of Common Pleas; his petition was denied, and this appeal followed.

On appeal, Jones contends that the trial court erred in denying his petition for a writ of certiorari because Jones was not brought to trial within the 120-day time period required by Pa.R.Crim.P. 6013, and the Commonwealth failed to present evidence demonstrating that it acted with due diligence in bringing the case to trial. We agree.

When reviewing the denial of a Rule 6013 motion, we are limited to determining

whether the court abused its discretion or committed an error of law in finding that the Commonwealth was ... duly diligent in bringing [defendant/appellant] to trial within the [120]-day time limit imposed by Rule 6013[ (a)(3) ]. We are limited to the evidence presented at the Rule 6013 hearing and the findings of the trial court, and must view the evidence in a light most favorable to [the Commonwealth] as the prevailing part[y] below.

Commonwealth v. Nesmith, 425 Pa.Super. 291, 295, 624 A.2d 1078, 1080-81, appeal denied, 535 Pa. 674, 636 A.2d 633 (1993) (citation omitted).

Rule 6013 provides, in pertinent part, the following:

Rule 6013. Prompt Trial — Municipal Court
(2) Trial in a Municipal Court case in which a preliminary arraignment is held after June 30, 1975, shall commence no later than 120 days from the date on which the preliminary arraignment is held.
(c)(l)(i) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court orally or in writing for an order extending the time for commencement of trial----
(iii) Such motion shall allege facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the Court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.

Rule 6013 thus requires the Commonwealth to act with due diligence when bringing a defendant to trial and to offer evidence demonstrating that any delay beyond 120 days is unavoidable. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). “The Commonwealth acts with due diligence as long as it acted reasonably based on the circumstances.” Cullenen v. Commonwealth, 138 Pa.Cmwlth. 508, 520, 588 A.2d 988, 994 (1991). We note that the general principles applied to Pa.R.Crim.P. 1100 apply equally to Rule 6013 cases. See Pa.R.Crim.P. 6013 Comment.

Jones asserts that the court erred in denying his petition for a writ of certiorari because the Commonwealth did not prove that it acted with due diligence in bringing him to trial. The Commonwealth did not file a motion for extension on the date of trial. The only evidence offered by the Commonwealth in response to Jones’s motion to dismiss was the Quarter Sessions file. It is true that a finding of due diligence may be based on facts contained in uncontested notations in the Quarter Sessions file where those facts indicate that the case was brought to trial on the earliest possible date. See Commonwealth v. Nellom, 388 Pa.Super. 314, 565 A.2d 770 (1989) (finding that the Commonwealth acted with due diligence where the Quarter Sessions file indicated that the Commonwealth requested the earliest possible date consistent with the court’s business). In this case, however, the Commonwealth conceded at the Rule 6013 hearing that the Quarter Sessions file did not indicate a request for the earliest possible trial date. N.T., January 24, 1995, at 3. Further, the Commonwealth was unable to explain why such a notation was omitted from the file. When the trial court requested the notes of testimony from the hearing, the Commonwealth indicated that there were none. Id. at 6. Our supreme court has stated that “ ‘[wjhen a case has possible Rule 1100 problems, prosecutors must do everything reasonable within their power to see that the case is tried on time.’ ” Commonwealth v. Browne, 526 Pa. 83, 89, 584 A.2d 902, 905 (1990), quoting Commonwealth v. Smith, 477 Pa. 424, 428, 383 A.2d 1280, 1282 (1978). Because the record in the present case does not indicate that the Commonwealth took any actions to ensure that Jones was brought to trial within the time prescribed by Rule 6013, we find that the trial court abused its discretion in denying Jones’s petition for a writ of certiorari.

Based on the foregoing, we reverse the order denying Jones’s petition for a writ of certiorari and remand this matter to Municipal Court with directions to discharge Jones.

Order REVERSED. Case REMANDED. Jurisdiction RELINQUISHED.


source: Caselaw Access Project

author: HOFFMAN, Judge. DEL SOLE, Judge, POPOVICH, Judge,

license: Public Domain

text:
    679 A.2d 1300
    Mary MILLER v. Joseph J. BISTRANSKY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 11, 1996.
    Filed July 12, 1996.

      Caram J. Abood, Johnstown, for appellant.
    Richard J. Green, Jr., for appellee.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from an order entered October 10, 1995, dismissing appellant’s exceptions to the trial court’s June 19, 1995 order granting back child support payments (arrearages) to appellee. Appellant, Joseph J. Bistransky, raises the following issues for our review:

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE STATUTE OF LIMITATIONS DOES NOT APPLY WHEN [AN APPELLEE] SEEKS ENFORCEMENT OF A COURT ORDER FOR SUPPORT ENTERED FIFTY YEARS PREVIOUSLY FOR SUPPORT?
II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE DOCTRINE OF LACHES DOES NOT APPLY WHEN [AN APPELLEE] SEEKS ENFORCEMENT OF A COURT ORDER FOR SUPPORT ENTERED FIFTY YEARS PREVIOUSLY?
III. WHETHER THE TRIAL COURT ERRED IN FINDING THAT A PLAINTIFF WHO IS SEEKING ENFORCEMENT OF A FIFTY YEAR OLD SUPPORT ORDER HAS STANDING?
IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO FIND THAT [APPELLANT’S] VETERAN’S ADMINISTRATION [VA] PAYMENTS TO THE CHILD CONSTITUTE A CREDIT AGAINST CHILD SUPPORT PAYMENTS OWED?

Appellant’s Brief at 4. We affirm in part and reverse in part.

George Bistransky was born to appellant and appellee, Mary [Bistransky] Miller, on August 5, 1946. Prior to George Bistransky’s birth, appellee filed criminal charges of desertion and non-support against appellant. Pursuant to appellant’s conviction on these charges, the court entered an order on December 31, 1945, sentencing appellant to pay appellee support of $25.00 per month, to be increased to $40.00 per month upon the child’s birth.

On July 1, 1994, appellee petitioned for arrearages, claiming that appellant failed to make any payments to support the child before he turned eighteen. On October 12, 1994, the trial court entered an order to suspend support for the child and set arrearages at $3,240.00 as of August 30, 1994. On October 14, 1994, the court attached $200.00 per month from appellant’s wages , for payment of the arrearages. Appellant moved to dismiss the petition, arguing that the action was barred by the statute of limitations and laches. On March 24, 1995, the trial court dismissed appellant’s challenges and orderéd that the matter be scheduled for a hearing on the merits.

On June 19,1995, after a hearing, the trial court entered an order directing appellant to pay the $3,240.00 in arrears. Appellant filed exceptions to this order. On October 10, 1995, after a hearing, the trial court dismissed the exceptions. This timely appeal followed.

Appellant first claims that the trial court erred in holding that appellee’s claim, filed some thirty (30) years after the child turned eighteen, is not barred by the six (6) year statute of limitations. See 42 Pa.C.S. § 5527.

In the instant case, a review of the certified record reveals that the trial court found the six year statute of limitations inapplicable, as the statute does not apply to a cause of action that accrued prior to its effective date of July 27, 1978. In addition, the trial court found that the child support order at issue here was part of a sentence imposed in a criminal action for desertion and non-support, and that appellee was merely seeking to enforce the order resulting from that sentence. See Trial Court Opinion 10/10/95 at 3-4. Accordingly, as we conclude that the trial court has adequately addressed this claim, we affirm this issue on the basis of the opinion below.

Appellant next claims that the trial court erred in holding that the doctrine of laches does not apply to bar appellee’s entitlement to delinquent support payments.

To invoke the doctrine of laches, the party asserting the doctrine must show (1) delay arising from the other party’s failure to exercise due diligence and (2) prejudice arising from the delay. Patten v. Vose, 404 Pa.Super. 426, 429, 590 A.2d 1307, 1309 (1991). Prejudice exists where there is some changed condition of the parties which occurs during the period of, and in reliance on, the delay, such as where records have become lost or unavailable, witnesses die or cannot be located, and where the party asserting laches has changed his or her position in anticipation that a party will not pursue a particular claim. Meier v. Maleski 167 Pa. Commw.Ct. 458, 476-480, 648 A.2d 595, 604-05 (1994).

In the present case, appellant claims that his life has been interrupted by appellee’s petition for arrearages and that he is embarrassed and aggravated by having to defend this action. However, appellant has not shown any adverse effects from appellee’s delay in filing her claim. Meier, supra. Consequently, as appellant was not prejudiced by the delay, we dismiss this claim. Patten, supra.

Appellant next claims that the trial court erred in finding that appellee had standing to pursue this claim.

At the conclusion of a support hearing, a party who wishes to contest any matters that occurred during the hearing may file exceptions to the hearing officer’s report or to any part thereof. Pa. R.C.P. 1910.12-(e), (f). Any matter not raised in an exception is deemed waived. Id. Here, as appellant failed to raise this standing issue in his exceptions filed to the hearing officer’s recommendations, this issue is waived. Id.

Finally, appellant claims that the trial court erred in failing to find that appellant’s VA payments to the child constituted a credit against child support payments owed.

There is a presumption that an obligor’s support obligation will be reduced by the amount of retirement or disability benefits paid directly to a child. Preston v. Preston, 435 Pa.Super. 459, 462 n. 2, 646 A.2d 1186, 1187 n. 2 (1994); Children & Youth Svcs. v. Chorgo, 341 Pa.Super. 512, 519-20, 491 A.2d 1374, 1378 (1985). However, the presumption may be rebutted by the party opposing credit. Preston, 435 Pa.Super. at 462, 646 A.2d at 1187. Upon finding that a party should not receive credit for benefits paid, a trial court must articulate the reasons for its findings on the record. Id.

In the instant case, there was evidence that the Department of Veterans Affairs had paid benefits totaling approximately $4,160.00 directly to the child from October 11, 1957 (when the child was eleven (11) years old) to October 1, 1964 (when the child was eighteen (18) years old). See Trial Court Opinion, 10/10/95 at 2; Department of Veterans Affairs Letter, 6/8/95. Accordingly, we agree with the trial court that appellant is not eligible for credit for the period preceding October 11, 1957, and thus appellee is entitled to arrearages for full child support payments that came due preceding that date. However, we find that the trial court erred in failing to state articulable reasons on the record why it did not apply credit for benefits paid to the child between October 11, 1957 and August 5, 1964, the date the child reached age eighteen. Preston, supra; Chorgo, supra.

Accordingly, we remand this matter to the trial court to determine whether appellant’s support obligation should be reduced for the period following October 11, 1957 in light of Chorgo and Preston.

Affirmed in part, reversed in part, and matter remanded. Jurisdiction relinquished.

DEL SOLE, J., files a concurring statement.

POPOVICH, J., files a dissenting opinion.

DEL SOLE, Judge,

concurring.

I agree with the result reached by Judge Hoffman because I believe that once an order for support is entered a parent should not be permitted to escape payment. As we now know, courts are not permitted to reduce arrearages, 23 Pa.C.S. § 4352(e), and I think this embodies the public policy of the Commonwealth. I cannot agree with Judge Popovich that the court of common pleas lacked jurisdiction. I believe reliance on Commonwealth v. Johnson, 542 Pa. 568, 669 A.2d 315 (1995), is misplaced as that case was premised on a specific statute, the Juvenile Act, and such a statute does not exist in this case. Further, the criminal nature of nonsupport cases was abolished years ago and support orders entered pursuant to those cases have traditionally been enforced through domestic relations offices.

POPOVICH, Judge,

dissenting.

I respectfully dissent from the opinion of the majority because I do not believe the Civil Division of the Court of Common Pleas of Cambria County had subject matter jurisdiction over this action to enforce a criminal judgment of sentence. Further, assuming arguendo, that the criminal judgment is enforceable as a support order, I agree with appellant that the action should be barred by the six year statute of limitations. Finally, I am convinced that appellant is entitled to a credit against his “support” obligation for the total amount of his Department of Veterans Affairs benefits paid to his son directly, and, since the total VA benefits paid directly to his son exceeds his support obligation, I would find that appellant has discharged his duty under his judgment of sentence for desertion and non-support which was entered over fifty years ago on December 31, 1945.

Appellant argues that appellee lacks standing to petition for enforcement of this “support order” and the district attorney is the proper authority to enforce the judgment of sentence. The majority concluded that appellant has waived this issue for failing to raise the issue in written exceptions to the master’s report. However, I would find the argument was not waived since the lower court heard oral argument on the issue on July 24, 1995. See, Pa.R.C.P. 1910.12(f) (“Matters not covered by exceptions are deemed waived unless, prior to entry of the final order, leave is granted to- file exceptions raising those matters.”).

Regardless of whether the issue of standing has been waived, I believe the issue should be addressed because it is more properly framed as an attack on the jurisdiction of the civil division of the Court of Common Pleas to enforce terms of a criminal judgment of sentence. Since questions relating to the jurisdiction of the court are not waived by the parties’ failure to raise them and may be raised by this court sua sponte, I believe we must address the question of subject matter jurisdiction herein raised. Fried v. Fried, 509 Pa. 89, 90-94, 501 A.2d 211, 212-213 (1985); Commonwealth v. Stadtfeld, 445 Pa.Super. 271, 278 n. 3, 665 A.2d 487, 491 n. 3 (1995).

In the recent case of Commonwealth v. Johnson, 542 Pa. 568, 574-578, 669 A.2d 315, 319-320 (1995), our supreme court held that jeopardy does not attach when an order transferring a juvenile from the jurisdiction of the criminal division of the court to the juvenile division of the court is improper. In other words, a case must be heard in the correci division of the court of common pleas for that court to possess the requisite subject matter jurisdiction, and without subject matter jurisdiction, any action take by the court is void. Johnson, supra. Presently, it is undisputed that appellant’s duty of support arises from a criminal judgment of sentence, not a civil support order. Thus, I submit the civil division of the court of common pleas did not possess jurisdiction over this matter, and the actions taken below are void. This matter should have been resolved in the criminal division of the court, and the lower court was without authority to order appellant to pay the arrearages.

Next, assuming the criminal judgment of sentence for desertion and non-support has somehow been transmogrified into a civil support order, I am convinced appellee is barred by the statute of limitations from asserting the claim for child support arrearages. First, it is duplicitous for the lower court to rule that the six year statute of limitations has no bearing upon a criminal judgment of sentence and then to enforce the judgment of sentence when, in fact, the civil division of the court of common pleas has no authority to enforce a criminal judgment. Second, I agree with appellant that Cohen v. Cohen, 352 Pa.Super. 453, 508 A.2d 561 (1986) is controlling and the six year statute of limitations, 42 Pa.C.S.A. § 5527, should be applied if we are going to consider this criminal judgment of sentence to now be a civil support order.

Finally, I am convinced that appellant has discharged his duty of support under the judgment of sentence since it is undisputed that the total VA benefits paid directly to appellant’s son has well exceeded appellant’s total support obligation. The fact that the VA payments did not begin until October 11, 1957, when his child was eleven, in no way limits appellant’s entitlement to credit towards the support arrearages which accrued before the date when VA benefits were first paid.

      . The parties were divorced in May 1947.

      . 18 P.S. § 4731 (repealed).

      . 18 P.S. § 4733 (repealed).

      . Accordingly, fifteen dollars ($15.00) per month was allocable to child support.

      . We see no reason to distinguish between VA benefits and Social Security benefits, as both types of government benefits are paid under the parent’s entitlement. See Preston, 435 Pa.Super. at 462 n. 2, 646 A.2d at 1187 n. 2.

      . 18P.S§ 4731 (repealed).

      . 18 P.S. § 4733 (repealed).


author: MONTEMURO, Judge:

text:
    679 A.2d 1304
    Ruby I. GUSTISON and Robert Gustison, Appellants v. TED SMITH FLOOR PRODUCTS, INC., A to Z Vacuum Cleaners, Gerald Rapp, Jr. d/b/a/ State Farm Insurance Company and State Farm Mutual Automobile Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued April 24, 1996.
    Filed July 15, 1996.

      W. Austin Allen, II, Doylestown, for appellants.
    Richard D. Adamson, Kutztown, for Gerald Rapp, Jr. d/b/a State Farm Insurance, appellee.
    Before McEWEN, President Judge, SAYLOR, and MONTEMURO, JJ.
   MONTEMURO, Judge:

This appeal lies from a judgment in favor of the defendants in a personal injury case.

On July 26,1990, Ruby Gustison tripped and fell on a public sidewalk in West Reading, Pennsylvania. The sidewalk abutted two commercial properties: Gerald Rapp’s insurance agency, (Gerald Rapp d/b/a/ State Farm Insurance Company) and A to Z Vacuum Cleaners, which leased the property from Ted Smith Floor Products, Inc. At or near the property line, the sidewalk consisted of two adjoining slabs of concrete, of which one was approximately two and one-half inches higher than the other. Appellants Ruby and Robert Gustison instituted a negligence action against Ted Smith Floor Products, Inc., A to Z Vacuum Cleaners and Gerald Rapp, claiming that Mrs. Gustison caught her foot on the elevated slab, and that the ensuing fall caused severe and permanent injuries to her back and hand necessitating three surgeries and extensive treatment. State Farm Insurance Company was also named as defendant under a theory of respondeat superior.

Prior to submitting the case to the jury, the trial court entered a nonsuit in favor of State Farm. The jury found no negligence on the part of Ted Smith Floor Products and A to Z, and despite concluding that Rapp was negligent, determined that his negligence was not a substantial factor in causing Ruby Gustison’s injuries. We affirm.

Appellant raises eleven issues on appeal which we will address seriatim, albeit not in the order presented:

1. Did the trial court err in curtailing plaintiffs cross-examination of defendants’ medical expert concerning his disagreement with the opinions of plaintiffs treating physician?
2. Did the trial court err in permitting defendants’ medical expert to read into the record hearsay opinions, where the expert used such hearsay information solely to bolster his own testimony and acted as a mere conduit of extrajudicial sources?
3. Did the trial court err in refusing to permit the rebuttal testimony of Edgar Lloyd, M.D.?
4. Did the trial court err in denying plaintiffs treating orthopedic physician the opportunity to testify?
5. Did the trial court err in refusing to give the requested standard jury instruction on prior conditions, set forth at Pa. SSJI (Civ) Section 6.30?
6. Did the trial court err in refusing to give the requested standard jury instruction on concurring causes, set forth at Pa. SSJI (Civ) Sections 3.26, 3.27 and 3.29?
7. Did the Trial Court err in instructing the jury that the defective condition causing the plaintiffs injuries must have existed on property owned or occupied by only one of the defendants, and that if plaintiff could prove to the jury upon whose property the condition existed, then the jury could find that defendant, and only that defendant, causally negligent, contrary to Pa. SSJI (Civ) Section 3.26?
8. Did the trial court err in refusing to permit plaintiffs medical experts to state their disagreement with the opinions given by defendants’ expert concerning the extent of the plaintiffs injuries and their causal relationship to the accident?
9. Did the trial court err in its distribution of peremptory challenges by granting the plaintiffs a total of only four peremptory challenges, contrary to Pa.R.C.P. 221, while granting the defendants a total or twelve peremptory challenges?
10. Did the trial court err in excluding the testimony of a contractor who repaired the sidewalk on which plaintiff fell, thereby denying plaintiffs the opportunity to present evidence establishing ownership and control of the specific area where plaintiff was injured, responsibility for repairing such area, and the feasibility of prior repairs to such area, where such responsibility and feasibility had been specifically denied by defendants in answers to plaintiffs’ requests for admission?
11. Did the trial court err in granting a nonsuit in favor of Defendant State Farm, where there was substantial evidence in the record from which a jury could find State Farm legally responsible for the acts or omissions of its agent, Defendant Gerald Rapp?

Our standard of review in determining whether a trial court erred in denying a new trial is whether the court committed an error of law controlling the outcome of the case, or a comparable abuse of discretion when the ruling turns on the weight of the evidence. Wasserman v. Fifth & Reed Hosp., 442 Pa.Super. 563, 575-76, 660 A.2d 600, 607 (1995).

Appellants’ first issue concerns their ability to cross-examine Dr. Ellis Friedman, the defendants’ expert witness. Like all the expert medical testimony in the case, Dr. Friedman’s testimony, the only evidence presented by the defense, was delivered via videotape. A transcript of the testimony was also entered into evidence. Appellants claim that the trial court improperly curtailed their cross-examination of Dr. Friedman concerning his disagreement with Appellants’ experts, his failure to mention that Mrs. Gustison had two chipped teeth, and how much compensation he received for testifying.

The scope and manner of cross-examination are within the trial court’s discretion, and that discretion will not be disturbed absent its abuse or an error of law. Commonwealth v. Wilson, 538 Pa. 485, 506, 649 A.2d 435, 445 (1994), cert. denied, — U.S. —, 116 S.Ct. 145, 133 L.Ed.2d 91 (1995). In presenting their claims, Appellants refer to page numbers of the transcript of Dr. Friedman’s videotaped testimony, which shows handwritten “X”s crossing out portions of the testimony. These are, presumably, the portions excised from the videotape at the trial court’s behest and kept from the jury. However, there is nothing, no indication on the transcript itself and none in Appellants’ Brief, to indicate the legal reason for the deletion, or any objection on Appellant’s part at the time which would have elicited the trial court’s explanation for its rulings. Appellants argue that no such specific objections were necessary because the trial court gave them an automatic exception to any adverse decision. However, it is clear that the trial court offered this expedient for the limited purpose of avoiding interruptions while defense counsel read into the record rulings on a motion in limine. The trial court did not intend that Appellants could avoid noting their exceptions on the record throughout the entire trial. In fact, a review of the trial transcript demonstrates that the parties made objections at trial.

The docket reveals that a pre-trial conference was held on February 23, 1993, when, we may surmise, the evidentiary matters now complained of were resolved. However, there is no transcript of that hearing in the official record. It is Appellants’ burden to provide a sufficient record to guide the appellate court in its examination of the issues raised. Appellants’ failure to provide such a record and argument for the instant claim substantially hinders our ability to address this issue, which is, accordingly, waived. See Pa.R.A.P. 2117(c), 2119; Smith v. Penbridge Assocs., Inc., 440 Pa.Super. 410, 427 n. 12, 655 A.2d 1015, 1024 n. 12 (1995).

Moreover, as to Appellants’ contention that they were improperly prevented from presenting to the jury evidence of the $3,000 fee paid for Dr. Friedman’s services, our examination of the record reveals, even if the issue had not been waived, that Appellants’ position is baseless. First, Appellants elicited this testimony on recross-examination which went beyond the scope of redirect. Further, Appellants had already elicited on cross-examination that Dr. Friedman received $500 an hour for examining Mrs. Gustison, and $700 an hour for testifying. Thus, the jury had before it evidence that Dr. Friedman received compensation for his examination and testimony. There was therefore no error in the trial court’s ruling.

Appellants’ second argument is that the trial court erred in permitting Dr. Friedman to read medical reports of other experts into evidence. Specifically, they point to the medical findings of Dr. Thomas Hinrichs, Dr. Clifford Reed, and an unidentified nurse, none of whom testified at trial. Appellants claim that the testimony in question constitutes inadmissible hearsay.

A medical expert is allowed to express opinions based, in part, upon reports which are not in evidence, but which are customarily relied upon by other experts in the particular field. Primavera v. Celotex Corp., 415 Pa.Super. 41, 47, 608 A.2d 515, 518 (1992), alloc. denied, 533 Pa. 641, 622 A.2d 1374 (1993). The expert must express such opinions as an expert, however, and is not permitted merely to parrot another’s conclusions without bringing to bear on the matter his own expertise and judgment. Id. at 52, 608 A.2d at 521.

Dr. Friedman testified that the hospital records, medical reports, and office notes of various physicians that he relied upon are of the type normally used by other experts in the field. (Exhibit 19 at 45-46, 171-72). Our review of Dr. Friedman’s testimony indicates that he did not merely restate the findings and opinions of others, but permissibly relied upon them in formulating his own expert opinion. Dr. Friedman’s opinions were based not only on the documents enumerated above, but also on x-rays and test results, as well as his own clinical evaluation of Mrs. Gustison.

Among the documents reviewed by Dr. Friedman were the records of Dr. Emkey, which indicated that Mrs. Gustison had been complaining of general joint and muscle pain, specifically in her hands, neck, leg and lower back, since 1983, and that he had administered numerous cortisone injections to relieve her discomfort. However, she did not complain of any back pain during two visits to Dr. Emkey and his associate made within several weeks after her fall.

Dr. Friedman also testified to reliance upon reports prepared by Dr. Reed, a neurologist, who, upon examining Mrs. Gustison in April of 1991, found that the nerves leading from her back to the muscles in her leg were normal. Dr. Friedman also noted that Dr. Craig Johnson, who performed surgery on Mrs. Gustison’s back in March of 1992, indicated in his operative report that there was no evidence of anything associated with trauma or any prior injury to her spine. Although Mrs. Gustison was readmitted to the hospital approximately ten days after the surgery complaining of severe pain in her leg, Dr. Friedman noted that Dr. Hinrieh, a rehabilitative specialist, had commented in his report of the case that he believed many of Mrs. Gustison’s problems were related to poor pain adjustment to normal post-operative hypersensitivity. Dr. Friedman also related that certain nurses’ notes contained the same observation.

Based upon his review of all of the various clinical and laboratory results, Dr. Friedman opined that Mrs. Gustison’s injuries were not related to her fall, but stemmed from degenerative spinal problems which caused pain in her back and legs beginning in the 1980’s. Addressing her hand injury, Dr. Friedman stated that it, too, did not result from the fall, but from arthritis and the numerous cortisone injections which also began in the 1980’s.

Because this case involved an alleged aggravation of preexisting conditions, the medical reports of the experts who examined and treated Mrs. Gustison both before and after the fall were critical. However, Dr. Friedman not only conducted an extensive review of Ms. Gustison’s medical history, but also performed his own medical examination of her. We hold that the medical reports relied upon by Dr. Friedman were not inadmissible hearsay in that they only provided partial support and aid to the defense expert in arriving at his own expert opinion. See Id. (collecting cases).

Appellants’ third point of error is that the trial court erred in denying their rebuttal evidence. Dr. Friedman testified that 93% of his practice consisted of performing surgery and treating orthopedic patients. In rebuttal, Appellants sought to present Dr. Edgar Lloyd, who would have testified that Dr. Friedman did not regularly perform orthopedic surgery at Reading Hospital, the only hospital with which Dr. Friedman is affiliated. The trial court excluded this evidence on the basis that it should have been presented during Appellants’ case-in-ehief, and because it was extrinsic proof of a collateral matter.

The admissibility of rebuttal evidence is at the trial court’s discretion. Remy v. Michael D’s Carpet Outlets, 391 Pa.Super. 436, 444, 571 A.2d 446, 450 (1990), aff'd, 536 Pa. 1, 637 A.2d 603 (1993). Here, the trial court refused to allow the testimony because it was not, in fact, rebuttal evidence, but a challenge to Dr. Friedman’s qualifications. Moreover, Appellants had already established during cross-examination that Dr. Friedman did not perform surgery often.

In addition, a witness may not be contradicted upon a collateral matter, Commonwealth v. Johnson, 536 Pa. 153,159, 638 A.2d 940, 942, (1994), that is, one having no relationship to the issue on trial. Id. at 159, 638 A.2d at 943. Whether Dr. Friedman regularly or rarely performed orthopedic surgery at Reading Hospital or elsewhere was irrelevant to the question of whether Appellees were liable to Appellants. Thus, the court did not abuse its discretion in excluding the proffered rebuttal evidence.

Appellants’ fourth contention is that the trial court improperly excluded the testimony of Dr. Leonard Marchinski, who treated Mrs. Gustison’s injured hand. Although Appellants do not cite to the record, they contend that Dr. Marchinski was not allowed to testify because of a violation of the rules of discovery, specifically Pa.R.C.P. 4003.5(b).

Appellants contend that the defense had notice that Dr. Marchinski would be called as a witness because their Pretrial Memorandum listed him in that capacity. Contrary to Appellants’ allegation, Dr. Marchinski is not named as a prospective witness. Rather, the Memorandum indicates only that Dr. Marchinski’s records custodian might be called.

Once again, the record is devoid of any ruling that Dr. Marchinski’s testimony would not have been admitted at trial. Appellants’ only citation to the record concerns the trial court’s refusal to admit Dr. Marchinski’s medical bills. Accordingly, this issue is waived.

Next, Appellants take exception to the trial court’s decision not to give the standard jury charge on prior conditions. The standard instruction provides:

The plaintiff is entitled to recover damages for all injuries which the defendant’s negligence was a substantial factor in producing. The defendant’s negligence need not be the sole cause of the injuries; other causes may have contributed to producing the final result. The fact that some other factor may have been a contributing cause of an injury does not relieve a defendant of liability, unless you find that such other cause would have produced the injury complained of independently of his negligence. Even though prior conditions or concurrent causes may have contributed to an injury, if defendant’s negligence was a substantial factor in producing the injury, defendant is liable for the full amount of damages sustained, without any apportionment or diminution for the other conditions or causes.

Pa. SSJI (Civ) 6.30.

Instead, the trial court explained that any negligence on Appellees’ part must have been a substantial factor in bringing about Appellants’ loss, and then continued:

Under the law, if you were to find that the plaintiff had pre-existing medical conditions and that the acts of the defendant aggravated these pre-existing conditions, then compensation may be awarded by the jury for the increased damage caused by the actions of the defendant or inactions of the defendant. However, the award against this defendant could only be for the increase the jury finds in its sole discretion is caused by that defendant. Symptoms that are caused solely by someone’s pre-existing condition or which the jury may find are caused by a natural progression of a plaintiffs pre-existing condition, those can’t be recovered against the defendant. As in all matters, the burden is on the plaintiff to prove by the preponderance of the evidence that she has actually suffered an increase of the pre-existing condition and is not merely suffering from the pre-existing condition itself or the natural progression of the pre-existing condition.

(N.T. at 494-95.)

Appellants contend that the trial court’s charge was in direct contradiction to the standard instruction. They argue that upon a showing of existing prior conditions, Appellees were not relieved from liability unless they proved that some other, independent cause would have produced Mrs. Gustison’s injuries absent their negligence.

In reviewing jury instructions, we must view the charge in its entirety, taking into consideration all the evidence of record and determine whether or not any prejudicial error was committed. Lockhart v. List, 542 Pa. 141, 147-48, 665 A.2d 1176, 1179 (1995). Error will be found only where the jury was probably misled by the charge, or where an omission in the charge amounted to a fundamental error. Id.

Comparing the standard instruction with the instruction given by the trial court does not lead to the conclusion that the court erred. In its entirety, the jury instruction in this case does not conflict with the standard instructions. The trial court explained the substantial factor concept, and clearly stated that even though Mrs. Gustison had a pre-existing condition, an aggravation of that condition by Appellees could be compensable. We hold that the trial court did not err in its instruction on prior conditions.

Appellants also take exception to the trial court’s failure to charge on concurring causes. Specifically, they object to the instruction that follows.

[I]f the jury were to find a discrepancy in the level of the sidewalk slabs to have been the result of a negligent omission to act and if the jury were to also find this to be the cause of the plaintiffs fall and subsequent hurt and harm, then it becomes critical to know upon whose property this condition existed.

Now, this condition must have existed either on the A to Z property owned by Ted Smith Floor Products Company or on the Gerald Rapp property. It can’t be on both, and since neither defendant can be. liable in the law for the conduct of someone else or the other defendant here, the plaintiff has the burden of satisfying the jury by a preponderance of the evidence upon whose property the condition existed. If the plaintiff has met that burden, then the jury may find the property owner or occupier causally negligent.

If it can’t make a decision, then the jury would have to find for all the defendants.

(N.T. at 492-93.)

Appellants assert that the court should have given the concurring cause standard instruction as set forth in Pa. SSJI 3.26, 3.27, and. 3.29, because the facts in issue presented a “classic case” of the negligent inaction of two or more parties.

Even if a concurrent cause instruction should have been given, any error resulting from its omission is harmless in light of the jury’s finding that Rapp’s negligence was not a substantial factor in bringing about Appellants’ harm. See James v. Nolan, 418 Pa.Super. 425, 614 A.2d 709 (1992) (even if foreseeability charge was erroneous, error was harmless when jury found that defendant’s negligence was not a substantial factor in causing harm). Thus, Appellants were not prejudiced because the relationship between their injuries and negligence on the part of any of the Appellees would not change based solely on the number of negligent parties. Thus, Appellants’ contention is meritless.

Appellants’ seventh allegation is that the trial court erred in instructing the jury that only one defendant could be negligent contrary to Pa. SSJI (Civ) Section 3.26. As has already been explained, any error resulting from the court’s instruction is harmless.

Appellants’ eighth assignment of error concerns the trial court’s supposed preclusion of portions of Dr. Johnson’s testimony. This witness, Mrs. Gustison’s treating neurosurgeon, testified that the fall aggravated her pre-existing back injuries. Appellants claim that the jury should have been able to hear Dr. Johnson’s evaluation of Dr. Friedman’s opinion, that it was physically impossible for the fall to have aggravated Mrs. Gustison’s pre-existing injuries.

Appellants do not indicate why the trial court struck this portion of Dr. Johnson’s testimony. Nor do they cite to any portion of the record where the trial court ruled on this point. From our review of the record, it appears that the court precluded the testimony based upon discovery violations. However, we have no way of knowing the basis for the court’s ruling. Because Appellants have failed to provide a sufficient record for appellate review, this issue is waived. Pa.R.A.P. 2117(c), 2119; Smith, 440 Pa.Super. at 427 n. 12, 655 A.2d at 1024 n. 12.

Appellants also claim that the trial court erred in striking portions of the testimony given by Dr. Ronald Emkey, Mrs. Gustison’s treating physician for approximately nine years. The stricken testimony called into question Dr. Friedman’s claim that Mrs. Gustison’s hand problems were related to cortisone injections she had received.

The record indicates that the court precluded this area of Dr. Emkey’s testimony based upon a violation of the discovery rules. However, Appellants do not argue that the trial court erred in ruling that a discovery violation occurred. Instead, they claim, without supporting authority or rationale, that the trial court erred because Dr. Emkey’s testimony affected Dr. Friedman’s credibility. Without a contention that the trial court erred in its ruling, we cannot hold that the court abused its discretion in striking Dr. Emkey’s response to Dr. Friedman’s opinion.

Appellants’ ninth issue is that the trial court erred in granting them only four peremptory challenges while allowing Appellees a total of twelve. Appellants contend that they should have received eight challenges, and Appellees sixteen. Appellants, who are over seventy years old, also allege that they were prejudiced because the jury contained no member over sixty-one years of age, and nine members under forty.

The number of peremptory challenges in a civil case is governed by the Rules of Civil Procedure:

Each party shall be entitled to four peremptory challenges ____ In order to achieve a more fair distribution of challenges, the court in any case may
(a) allow additional peremptory challenges and allocate them among the parties;
(b) where there is more than one plaintiff or more than one defendant or more than one additional defendant, consider any one or more of such groups as a single party.

Pa.R.C.P. 221. The Note to Rule 221 clearly provides that the trial court is in the best position to determine the number of challenges that will be allowed. See Leaphart v. Whiting Corp., 387 Pa.Super. 253, 564 A.2d 165 (1989), alloc. denied, 525 Pa. 619, 577 A.2d 890 (1990).

Appellants’ argument fails for a number of reasons. First, there is no allegation that Appellees based their challenges on the age of the perspective jurors. Second, there is no evidence in the record of the jurors’ ages. Third, Appellants cite no authority as to how the age of the jurors unfairly affected the outcome of the case. Finally, based upon the parties’ respective interests, it was not erroneous to treat Appellants as a single party and Appellees as separate parties. We hold that Appellants have failed to establish any abuse of the trial court’s discretion in distributing peremptory challenges.

Appellants’ tenth contention is that the trial court erred in excluding the testimony of Tom Bertolet, who performed repairs to the sidewalk subsequent to Mrs. Gustison’s fall. Appellants offered Bertolet’s testimony in order to demonstrate both that repair of the sidewalk was feasible, and that Ted Smith Floor Products was responsible for its care and control.

As stated earlier, evidence is admitted at the discretion of the trial court, and absent any abuse of that discretion, we will not disturb its rulings. Appellants’ offer of proof indicated that Ted Smith Floor Products paid Bertolet approximately $3700 to correct the misalignment of the sidewalk slabs after Mrs. Gustison’s fall. The trial court precluded Bertolet from testifying based upon the testimony of the owner of Ted Smith Floor Products, Samuel Negrelli, who had already admitted that if he had known about the defect, repairs would have been feasible. Thus Bertolet’s testimony would have been cumulative.

Moreover, whether Bertolet should have been allowed to testify is irrelevant based upon our disposition of this appeal, as his testimony would not have addressed whether any of the parties’ negligence was a substantial factor in causing Appellants’ injuries. Therefore, we need not address the merits of this issue.

Finally, Appellants contend that the grant of a nonsuit in favor of State Farm was erroneous. Appellants brought an action against State Farm on the basis that it was responsible for Rapp’s inactions under the theory of respondeat superior. Based upon the jury’s finding that Rapp’s negligence was not a substantial factor in bringing about Appellants’ harm, we need not address this issue.

Judgment affirmed.

McEWEN, P.J., concurs in the result.

       Retired Justice assigned to Superior Court.

      . Pa.R.C.P. 4003.5(b) reads in pertinent part as follows:
      If the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action ...


author: CERCONE, President Judge Emeritus:

text:
    679 A.2d 1313
    Christopher RYAN and Sean Drea v. Robert GORDON, Appellant.
    Superior Court of Pennsylvania.
    Argued May 2, 1996.
    Filed July 26, 1996.

      Robert K. Gordon, Pro Se, appellant.
    Eric J. Pritchard, Philadelphia, for Christopher Ryan, appellee.
    Paul J. Downey, Philadelphia, for Sean Drea, appellee.
    Before CIRILLO, Presiding Judge Emeritus, DEL SOLE, J. and CERCONE, P.J.E.
   CERCONE, President Judge Emeritus:

This is an appeal from the order entered by the Court of Common Pleas of Philadelphia County. We quash the appeal.

This case originated as a dispute over funds allegedly held in an escrow account. Appellees Christopher Ryan and Sean Drea (lessors) purchased property located at 602 North 21st Street, Philadelphia, Pennsylvania. On August 2, 1990, Robert Gordon leased the premises from lessors for nine hundred dollars ($900.00) per month. On January 30, 1991, Prudential Home Mortgage Company, Inc. (Prudential) commenced a mortgage foreclosure action against lessors. On March 27, 1991, counsel for Prudential notified Gordon by letter that lessors had defaulted on the note and mortgage to the property. The notice requested Gordon to forward all future rent payments to Prudential. At that time, Gordon notified lessor Ryan that he would place future rent payments in a separate bank account pending a determination of the rightful payees of the rent. Gordon placed money in a separate account from May 1991 through October or November 1992.

On September 23, 1992, Prudential purchased the property at a foreclosure sale. In September or October 1992, lessors demanded payment of the escrowed funds representing rent owed from May 1991 through September 23, 1992. Gordon moved out of the premises in October or November of 1992 and withdrew the funds contained in the escrow account. Gordon did not forward these funds to lessors. In November 1993, the United States District Court for the Eastern District of Pennsylvania entered an order in Prudential’s foreclosure action which directed that lessor Ryan’s obligation to Prudential be marked as satisfied, released and discharged. A similar order as to lessor Drea was entered in February 1994.

In March 1994, lessors filed a complaint seeking fifteen thousand, one hundred dollars ($15,100.00), such sum reflecting the rental payments allegedly due them from April 1, 1991 through September 23, 1992, minus Gordon’s security deposit of nine hundred dollars ($900). The matter proceeded to arbitration. On November 30, 1994, the arbitrators found in favor of lessors and against Gordon in the amount of $15,100. Gordon appealed the award of the arbitrators to the court of common pleas. At the request of Settlement Master Howard Chambers, the parties briefed the legal issues to be presented to the trial court. On September 28, 1995, the trial court ordered that judgment be entered in favor of the lessors and against Gordon in the amount of $15,100. Thereafter, Gordon filed the instant appeal.

Gordon raises three issues for our review:

I. THE LOWER COURT’S RELIANCE ON THE AP-PELLEES’ STATEMENTS CONCERNING FACTUAL STIPULATIONS RESULTED IN THE DENIAL OF THE APPELLANT’S DUE PROCESS RIGHTS AND THE ENTRY OF A FUNDAMENTALLY DEFECTIVE JUDGMENT.
II. PRUDENTIAL’S SERVICE OF THE DEMAND-FOR-RENTS LETTER UPON THE APPELLANT WAS SUFFICIENT AS A MATTER OF LAW TO CONFER UPON PRUDENTIAL THE RIGHT TO RECEIVE THE RENTS AND TO DIVEST THE APPELLEES OF THAT RIGHT.
III. THE EXTINGUISHMENT OF THE LENDER’S RIGHT TO PURSUE THE DEBTORS FURTHER NEITHER REVERSED THE ASSIGNMENT-OF-RENTS NOR RESTORED THE DEBTORS’ RIGHT TO THE RENTS.

Before addressing these issues, however, we must first ascertain whether appellant Gordon properly preserved them in the court below.

In connection with the instant appeal, lessors have filed a motion to quash arguing that: (1) Gordon failed to object to any of the facts contained in their memorandum of law presented to the trial court; and (2) Gordon failed to file post-trial motions. Thereafter, this court issued a rule to show cause as to whether this matter satisfies the requirements of submission to the trial court on a case stated basis or whether the matter constitutes a non-jury trial based upon a stipulation of the facts. In his response to the rule to show cause, Gordon contends that the disposition of this matter was neither a “trial without a jury upon a stipulation of facts” nor a submission of the case on a “case stated” basis. Gordon contends that the disposition should be considered more in the nature of a summary judgment, which does not require the filing of post-trial motions pursuant to Pennsylvania Rule of Civil Procedure 227.1(c).

Gordon’s attempt to characterize the underlying proceedings as entry of summary judgment is a somewhat creative effort to avoid quashal of the action for failing to preserve his allegations of error for appellate review. If the trial court’s adjudication constituted either a trial without a jury upon stipulated facts, or submission of agreed upon facts for entry of judgment by the lower court (ie., a “case stated”), Gordon’s appeal must be quashed.

“It is well settled that where there is a trial without a jury upon stipulated facts submitted for the decision of the court, a party must file post-trial motions to preserve any right of appeal.” Baughman v. State Farm Mutual Automobile Ins. Co., 441 Pa.Super. 83, 86, 656 A.2d 931, 932 (1995) (citing Miller v. Kramer, 424 Pa.Super. 48, 49-51, 621 A.2d 1033, 1034 (1993); and McCormick v. Northeastern Bank, 522 Pa. 251, 254, 561 A.2d 328, 330 (1989)). To preserve the right to appeal from a judgment entered upon a case stated, the statement of facts must contain a clause reserving the right to appeal. Penn v. Nationwide Ins. Co., 363 Pa.Super. 13, 15, 525 A.2d 400, 401 (1987); Wertz v. Anderson, 352 Pa.Super. 572, 577, 508 A.2d 1218, 1220 (1986). Here, Gordon neither filed post-trial motions, nor does his statement of facts contain a clause reserving the right to appeal. Under either scenario, Gordon has not preserved his allegations of error for appellate review.

The trial court’s adjudication contains elements resembling both a trial without a jury upon stipulated facts, and judgment upon a case stated. Because the procedure does not exactly match either scenario, Gordon argues that this court must consider the adjudication the entry of summary judgment. Unfortunately, the record does not reflect the filing of a motion for summary judgment by either party. Gordon cites no cases which recognize the trial court’s grant of summary judgment on its own motion. Because the trial court had no motion for summary judgment before it, we cannot consider its adjudication the grant of summary judgment. See Pa.R.C.P., No. 1035(a), 42 Pa.C.S.A. (“After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment.... ”).

Proceedings representing a hybrid between adjudication upon a case stated and a non-jury trial upon stipulated facts are not unheard of in this Commonwealth. See Baughman v. State Farm Mut. Auto. Ins. Co., supra (although trial court’s order is captioned “Judgment” and parties agreed to facts, the proceeding more closely resembled non-jury trial based upon stipulated facts); Penn v. Nationwide Ins. Co., supra (“[wjhether the instant action qualifies as a case submitted upon a stipulation of facts or as a case-stated is not clear”); Wertz v. Anderson, supra (Superior Court recognizes that underlying action contained some of the characteristics of a case stated). In the instant case, it makes no difference whether the underlying proceedings constituted a case stated or a non-jury trial based upon stipulated facts. If the proceedings constituted a final judgment entered on a case stated, Gordon failed to properly preserve his right to appeal in the statement of facts. Penn v. Nationwide Ins. Co., 363 Pa.Super. at 15, 525 A.2d at 400; Wertz v. Anderson, 352 Pa.Super. at 577, 508 A.2d at 1220. In the alternative, if the proceedings constituted a hon-jury trial upon stipulated facts, Gordon failed to file post-trial motions as required by Pa.R.C.P. 227.1. Baughman v. State Farm Mutual Automobile Ins. Co., 441 Pa.Super. at 86, 656 A.2d at 931. Because Gordon failed to properly preserve any issues for appellate review, we must grant lessors’ motion to quash the appeal.

The appeal is quashed.

      . Rule 227.1 of the Pennsylvania Rules of Civil Procedure provides, in pertinent part:
      (c) Post-Trial motions shall be filed within ten days after
      (2) notice of nonsuit or the filing of the decision or adjudication in the case of a trial without a jury or an equity trial.
      Pa.R.C.P„ No. 227.1(c)(2).

      . Contrary to Gordon’s assertions, we note that all parties agreed that there was no dispute as to the pertinent facts underlying the cause of action. Memorandum of Law of Plaintiffs Christopher Ryan and Sean Drea, page 1; Memorandum of Law In Connection With Settlement Conference of Robert Gordon, at 1, 2. The affidavit of Howard Chambers, Esquire, the settlement master, likewise reflects no dispute regarding the facts underlying the cause of action:
      4. During the [settlement] conference, counsel agreed that there were no pertinent factual issues in dispute. Accordingly, I informed counsel that the matter would be adjudicated by non-jury trial based upon stipulated facts. I then directed the parties to submit briefs in connection with the non-jury trial for consideration by the court no later than May 2, 1995. The parties agreed to do so.
      5. On or about May 2, 1995, I received briefs from the the parties which I reviewed. After reviewing the briefs, I forwarded the briefs to the Honorable Albert F. Sabo, Court of Common Pleas, Philadelphia County, for entry of a decision based upon the parties stipulated facts.
      Affidavit of Howard Chambers, Esquire, filed in Superior Court on April 3, 1996 (emphasis added).


author: TAMILIA, Judge.

text:
    679 A.2d 1316
    Jane M. McARDLE v. William H. McARDLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1996.
    Filed July 31, 1996.

      Robert T. Yurchak, Nesquehoning, for appellant.
    Charles A. Banta, Easton, for appellee.
    Before DEL SOLE, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge.

William H. McArdle appeals from the November 22, 1995 decree divorcing him and the appellee from the bonds of matrimony and directing the equitable distribution of their marital property.

The parties were married on July 20, 1970, and a “no-fault” divorce complaint was filed by appellee on February 25, 1994. After a hearing before a court-appointed Master, a report was filed on November 9, 1995, and the parties were noticed thereof. No timely exceptions to the Master’s report were filed and, on November 22, 1995, a divorce decree was entered. On December 22, 1995, husband filed a timely appeal to this Court.

Husband argues his failure to file exceptions to the Master’s report does not preclude his challenge to the distribution of the marital property, and in support thereof relies on Shuda v. Shuda, 283 Pa.Super. 253, 423 A.2d 1242 (1980).

Pursuant to Pa.R.C.P. 1920.55 (rescinded September 11, 1995, effective January 1, 1996) and Pa.R.C.P. 1920.55-2 (adopted September 11, 1995, effective January 1, 1996), both of which are titled Master’s Report. Notice. Exceptions. Final Decree, matters which are not addressed by exceptions are waived unless, prior to the entry of the decree, leave is granted to file exceptions raising those matters. See also Blatz v. Blatz, 412 Pa.Super. 449, 603 A.2d 666 (1992). We agree with the trial court’s ruling finding Pa.R.C.P. 1920.55-2 precludes appellate review, and further find Shuda distinguishable from the facts with which we are faced.

In Shuda, neither party filed exceptions to the Master’s report, and the court thereafter granted husband a divorce based on wife’s indignities. This Court heard wife’s appeal despite her failure to comply with a local rule which required exceptions to the Master’s report be filed within ten days of its issuance. In so doing, the Court reasoned “we must still satisfy ourselves that the evidence establishes the right to the divorce.” Id. at 261, 423 A.2d at 1246. The Shuda court was concerned with whether the evidence presented supported the entry of the decree of divorce based on indignities. Such a challenge, to the entry of the decree, was properly entertained by the court. Here, however, we are faced with a challenge to the equitable distribution of the marital estate. No challenge to the divorce, mutually agreed to by the parties, has been raised. Accordingly, we find Pa.R.C.P. 1920.55-2 precludes appellate review of husband’s challenge of the Master’s findings, adopted by the trial court. Moreover, as stated in footnote two of Shuda, Pa.R.C.P. 1920.55, requiring exceptions to be filed or the arguments waived, was not in effect at the time of the Court’s ruling and therefore did not impact its decision. The Court stated “[b]ecause the new rules do not apply to this case we are not required to decide whether Rule 1920.55 is intended to alter our scope of Appellate review, and we intimate no opinion on that question.” Shuda, supra.

Based on Pa.R.C.P. 1920.55-2 and the foregoing reasoning distinguishing Shuda, we agree with the trial court that appellant’s failure to file exceptions to the Master’s report precludes appellate review, thereby constraining this Court to quash husband’s appeal.

Appeal quashed.

      . Appellee’s Petition to Quash Appeal and for Award of Counsel fees is denied.


author: MONTEMURO, Judge.*

text:
    679 A.2d 1317
    John A. WAREHIME, Appellant, v. ARWCO CORPORATION, Appellee.
    Superior Court of Pennsylvania.
    Argued June 12, 1996.
    Filed July 31, 1996.

      James P. DeAngelo, Harrisburg, for appellant.

      George A. Michak, Harrisburg, for appellee.
    Before TAMILIA, JOHNSON, and MONTEMURO , JJ.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Judge.*

This appeal lies from an order sustaining appellee’s preliminary objections in the nature of a demurrer and dismissing appellant’s complaint seeking attorney’s fees.

Appellant is a minority shareholder and a member of the Board of Directors of appellee ARWCO corporation, which is family owned. At a regular meeting on November 14, 1994, the Board approved a plan which provided for the exchange of all of ARWCO’s outstanding stock for shares in Snyder’s of Hanover, another corporation held by appellant’s family, and of which he is also a minority shareholder. Under the exchange plan, ARWCO would become a wholly owned subsidiary of Snyder’s. A vote of all of the shareholders on the plan was scheduled by the Board to occur on November 18, 1994.

Believing that the exchange plan undervalued the ARWCO stock, appellant hired counsel to prepare a request to enjoin the proposed vote meeting, and a complaint seeking that ARWCO be directed to conduct an alternative valuation of its stock. A hearing on the injunction request was scheduled for November 17, 1994. Shortly before the appointed hearing time, the parties entered into an agreement postponing the vote meeting without the necessity of a hearing. The complaint intended to commence what the parties refer to as the Threatened Litigation was never filed.

Instead, appellant filed a complaint seeking attorney’s fees incurred from preparation of the Threatened Litigation complaint as well as the injunction request. Appellee filed preliminary objections in the nature of demurrer which the trial court sustained, dismissing the complaint for counsel fees, and this appeal followed.

Appellant has advanced what are ostensibly four issues. However, they all reduce to the same question, that is, whether he has, under any of a number of theories, stated a claim on which relief could be granted.

As appellant correctly points out, the appellate court’s scope of review is limited in instances where there is a challenge to the sustaining of preliminary objections in the nature of a demurrer. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983).

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purpose of the review.] The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Id. at 66, 468 A.2d at 461-62 (quoting Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-33 (1983) (citations omitted)).

The trial court grounded its decision on the basis that 1) the injunction was improperly filed without an underlying lawsuit to form the basis for the requested equitable relief; 2) equitable relief is prohibited by 15 Pa.C.S.A. § 1105; 3) the exclusive method to challenge the appraised value of shares of a corporation under circumstances like these present here is 15 Pa.C.S.A. § 1579.

While the first of these reasons is offered without supporting authority and is, in fact, an incorrect statement of the law, the other two are both applicable and controlling.

Section 1105 of the Associations Code, 15 Pa.C.S.A. § 101, et seq., restricts the right of a shareholder in a business corporation to obtain “an injunction against any proposed plan or amendment of articles” to those situations where there is “fraud or fundamental unfairness.” Neither condition is alleged in appellant’s complaint, thus from the outset any prayer for injunctive relief would have been unavailing. Appellant’s claim that the trial court was incorrect as to this conclusion is therefore meritless.

Moreover, in the absence of either fraud or fundamental unfairness, the exclusive recourse available to a disgruntled shareholder is through exercise of dissenter’s rights, which are defined in § 1571 et seq., and of which appellant was given notice with the proposed transfer plan in accordance with 15 Pa.C.S. § 1931. Appellant failed to comply with the requirements of the statute, which mandates, inter alia, that shareholders who oppose a proposed corporate action must assert their dissenter rights “prior to the vote” of the shareholders. 15 Pa.C.S.A. § 1574. Appellant chose instead to threaten litigation and seek an injunction to postpone the vote rather than complying with the statute. Thus, his claim that dissenter’s rights were not his exclusive remedy, and that they were not yet available because the plan had not been approved by stockholders is not merely meritless but directly contrary to law.

Appellant concedes the vitality of the general rule that litigants cannot recover counsel fees from an adverse party without express statutory authorization, a clear agreement between the parties, or some other established exception. Snyder v. Snyder, 533 Pa. 203, 212-13, 620 A.2d 1133, 1138 (1993). He contends, however, that there are exceptions relevant to his situation.

Appellant argues that this is a stockholder’s derivative action, and as such attorney’s fees may be recovered by shareholders in derivative or other actions which result in the creation of a common benefit or common fund, the latter of which must be within the jurisdiction of the court. Jones v. Muir, 511 Pa. 535, 515 A.2d 855 (1986). He argues too that the nature of the contemplated litigation and its putative outcome solves the problem of the fact there has been no action actually filed. He insists that since his threatened action has created a benefit and/or created a fund, no litigation need have taken place.

However, this theory is inapplicable since in addition to no suit, no demonstrable benefit has resulted much less a fund. Appellant’s argument that the fund consists of the assets of ARWCO which were preserved by his actions in preventing the share exchange is scarcely persuasive, since there has been no indication that the shares were in fact undervalued in the transfer plan, or that if there was an undervaluation the assets of the corporation are subject to the jurisdiction of the courts at this point.

As to the common benefit theory, the parties dispute the degree of its acceptance by the courts of this Commonwealth. However, here too, given the absence of any evidence one way or another, whether or not a benefit has been conveyed remains an open question. It is also one which we need not answer.

Order affirmed.

      . It is not at all clear how the injunction request came before the court. Appellant avers that the document prepared by his counsel was never filed, and the official record contains no other document relating to such a request, nor any court order memorializing the time and place of the hearing.

      . 15 Pa.C.S.A. § 1105 reads in pertinent part as follows:
      A shareholder of a business corporation shall not have any right to obtain, in the absence of fraud or fundamental unfairness, an injunction against any proposed plan ... nor any right to claim the right to valuation and payment of the fair value of his shares because of the plan ..., except that he may dissent and claim such payment if and to the extent provided in Subchapter D of Chapter 15 (relating to dissenters rights) where this subpart expressly provides that dissenting shareholders shall have the rights and remedies provided in that subchapter. Absent fraud or fundamental unfairness, the rights and remedies so provided shall be exclusive ...

      . 15 Pa.C.S.A. § 1574 reads in pertinent part as follows:
      If the proposed corporate action is submitted to a vote at a meeting of shareholders of a business corporation, any person who wishes to dissent and obtain payment of the fair value of his shares must file with the corporation, prior to the vote, a written notice of intention to demand that he be paid the fair value for his shares if the proposed action is effectuated ...


author: JOHNSON, Judge.

text:
    679 A.2d 1320
    COMMONWEALTH of Pennsylvania, Appellant, v. Luz RODRIGUEZ. COMMONWEALTH of Pennsylvania, Appellant, v. Aida RODRIGUEZ.
    Superior Court of Pennsylvania.
    Argued March 6, 1996.
    Filed June 17, 1996.
    Reargument Denied Aug. 30, 1996.

      Thomas Dolgenos, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    John Belli, Philadelphia, for appellees.
    Before DEL SOLE, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge.

In these consolidated appeals, the primary question we are asked to resolve is the following: Did the trial court err in reversing its pre-trial denial of a suppression motion upon its post-verdict conclusion that defense counsel had not, as the court initially believed, conceded that the police had not violated the “knock-and-announce” rule? Because we find no error, we affirm the order granting Aida Rodriguez an arrest of judgment and discharge and the order granting Luz Rodriguez a new trial.

On the evening of April 2, 1990, two Philadelphia police officers conducted an undercover surveillance of drug trafficking in the 2900 block of North Ella Street. The officers observed a Hispanic man in a blue jacket engaging in numerous transactions with unknown persons involving exchange of cash for small objects. Another Hispanic man, in a red coat, occasionally received cash from the first man and carried it into a house located at 2928 North Ella Street. On these occasions the man soon returned and gave the first man clear plastic bags containing many small red-capped vials. The officers also observed the man in the red coat on one occasion enter and emerge from a house located at 218 East Indiana Avenue; he again supplied the first man with a bag containing vials upon exiting this house. An undercover policeman purchased two vials from the seller with a traceable ten-dollar bill; the vials contained cocaine.

The evidence thus collected was used as the basis for search warrants for the two involved houses. These warrants were executed at 7:00 p.m. on April 3, 1990. When the police arrived on the block, they immediately saw and arrested the man whom they had observed selling cocaine the day before. They also saw the man in the red coat walking with another man toward 2928 North Ella Street. The officers followed these men and apprehended the man in the red coat at the bottom of the stairs in front of the house. The other man entered the house. Officer Christina Staunton followed this man to the house, knocked on the screen door, and yelled “Police, we have a warrant.” She then immediately entered.

Aida Rodríguez was in the kitchen of this house, seated at a table near a large bag containing cocaine and cash including the ten-dollar bill used by the police to purchase cocaine, the night before. Further search of the house yielded a loaded gun. Luz Rodriguez, Aida Rodriguez’s sister, was also present in the house when the police entered. When the officers attempted to search her, she indicated to them that she lived at 218 East Indiana Avenue (the other residence for which the police had a search warrant); the officers escorted her to that house and executed the second warrant. This search yielded drug paraphernalia and small quantities of cocaine.

Aida and Luz Rodriguez were arrested and charged with various drug and conspiracy offenses. Both women filed motions to suppress evidence and, following a hearing, the trial judge suppressed certain of Aida Rodriguez’s statements to police but refused to suppress physical evidence gathered in the search of 2928 North Ella Street. The court did not make formal findings of fact or conclusions of law. The women were brought to trial before a jury as co-defendants on February 13, 1993. After trial, Aida Rodriguez was convicted of possession of a controlled substance with intent to deliver and criminal conspiracy. Luz Rodriguez was convicted of possession of a controlled substance with intent to deliver and possession of drug paraphernalia.

The Rodriguez sisters filed post-trial motions requesting arrest of judgment and acquittal or a new trial based upon alleged errors in the suppression proceeding. The trial court granted these motions after review of “testimony and arguments,” Trial Court Opinion, dated March 27, 1995, at 2, concluding that defense counsel had not, as the court had initially believed, conceded the issue of whether the police had complied with Criminal Rule of Procedure 2007 (requiring the officers to “knock and announce”) in their search of 2928 North Ella Street. The court analyzed the substance of the suppression issue for the first time in considering and granting the post-trial motions, and concluded that physical evidence gathered at 2928 North Ella Street should have been suppressed as the fruit of an unlawful search. The court discharged Aida Rodriguez because it ruled that suppression of the evidence eliminated the possibility of establishing her guilt beyond a reasonable doubt. Luz Rodriguez was granted a new trial because of the court’s rulings that: (1) the inadmissible evidence gathered from 2928 North Ella Street might have influenced the jury with regard to her culpability and (2) the court’s charge to the jury with regard to the concept of joint possession was erroneous and potentially prejudicial. This appeal followed.

We note initially that the instant appeal requires us to review the reversal of the denial of Aida Rodriguez’s suppression motion. The Commonwealth is thus incorrect in its assertion, see Brief of Appellant at 4, that the standard of review applicable to this appeal is the standard governing review of a denial of a suppression motion. As discussed infra, this appeal involves a situation where the trial court, in the interests of justice, returned at the post-verdict motion stage to a prior point where it had committed legal error. The trial court corrected this error by considering relevant facts and reversing its erroneous denial of the suppression motion. Our review must reflect the character of the action taken below; we therefore review for abuse of discretion in the decision to revisit the suppression issue, see infra, and review the reversal itself as though it were a grant of the motion to suppress evidence. This review is accomplished by determining “whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Davis, 491 Pa. 363, 368, 421 A.2d 179, 181 (1980), quoting Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977). In making this determination,

we consider only the evidence of the defendant’s witnesses and the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted.

Commonwealth v. Pickron, 535 Pa. 241, 246, 634 A.2d 1093, 1096 (1993).

The Commonwealth advances the following three contentions on appeal: (1) The trial court erred in reassessing the evidence post-verdict without regarding itself as bound by its prior factual determinations; (2) The court erred in determining that the police entry into 2928 North Ella Street violated the “knock-and-announce” rule; (3) Regardless of the propriety of the search of 2928 North Ella Street, Luz Rodriguez is not entitled to the relief granted because she had no legitimate expectation of privacy in that residence.

The Commonwealth’s first contention is without merit. We first note that the trial court’s reversal of its initial conclusion that the Rodriguezes had conceded the lawfulness of the entry into 2928 North Ella Street is supported by the record. See N.T., February 19, 1993, at 47, 55-56. Furthermore, while the Commonwealth is correct that the trial court would be bound at the post-verdict review stage by its own prior findings of fact, see, e.g., Commonwealth v. Johnson, 428 Pa.Super. 494, 500-02, 631 A.2d 639, 643 (1993) (en banc), the suppression court in the instant case made no factual findings concerning the Rodriguezes’ claim that the police entry into 2928 North Ella Street was unlawful. The suppression court did not reach this issue because it determined that the issue was conceded as a matter of law. See Trial Court Opinion, supra, at 2. Reversal for error in the legal conclusions of a suppression court is the responsibility of the reviewing court. See Commonwealth v. Rosario, 438 Pa.Super. 241, 652 A.2d 354 (1994). The errant legal conclusion that a concession had occurred is precisely the sort of error the trial court may consider at the post-verdict motion stage. See Commonwealth v. Monarch, 510 Pa. 138, 148, 507 A.2d 74, 79 (1986)(“[W]here the suppression ruling is not supported by the record of the suppression proceeding, it is perfectly appropriate for the court, on post-verdict motions, to reverse its earlier suppression ruling.”). The post-trial factual determinations the trial court made in suppressing evidence gathered at 2928 North Ella Street were not reassessments of the evidence, but were instead initial assessments required by the reversal of a legal conclusion.

The Commonwealth’s second contention, that the trial court erred in concluding that the police violated the “knock-and-announce” rule at 2928 North Ella Street, was comprehensively discussed and adequately resolved by the Opinion of the trial court. After review of that Opinion, the record, the briefs of the parties, and the applicable law, we affirm the trial court’s ruling on this issue on the basis of its Opinion, dated March 27,1995, at 2-6.

Finally, the Commonwealth contends that even if the trial court was not bound by its initial suppression ruling and even if the search of 2928 North Ella Street was unlawful, Luz Rodriguez is not entitled to suppression of evidence seized there because she possessed no legitimate expectation of privacy in her sister’s home. Such expectation is required for the assertion of a basis for suppression (on the grounds of an unlawful search or seizure) under the constitutions of the United States, see Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and Pennsylvania, see Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615 (1993).

Regarding this contention, we first note that there is no indication in either the orders appealed from or in the trial court opinion that the trial court granted Luz Rodriguez a new trial on the grounds that the evidence seized from 2928 North Ella Street should have been suppressed as to her. The trial court ruled instead that that evidence should have been suppressed as to Aida Rodriguez, Luz’s sister and co-defendant. Luz Rodriguez was found guilty as “a joint possessor of the drugs found at Ella Street,” Trial Court Opinion, supra, at 1, as a possessor of drug paraphernalia found at 218 Indiana Avenue, and as a possessor with intent to deliver regarding drugs seized from the Indiana Avenue residence. The trial court’s grant of a new trial is supportable on the grounds that (1) the erroneous failure to suppress the 2928 North Ella Street evidence as to Aida had an obviously material and possibly extremely prejudicial effect on the resolution of the related joint possession charge against Luz Rodriguez, Aida’s co-defendant; and (2) as the trial court noted, “it cannot be said that the [inadmissible] evidence did not influence or prejudice the jury ... and lead to the guilty verdict as to the contraband and paraphernalia found at Indiana Avenue.” Id. at 8 (emphasis added). These circumstances are unaffected by the validity of an unlawful search and seizure claim regarding 2928 North Ella Street as to Luz Rodriguez. Furthermore, the trial court noted in its opinion that its charge to the jury on joint possession was so confusing as to warrant a new trial for Luz Rodriguez. Trial Court Opinion, supra, at 9. While the Commonwealth appears to claim that this was error, see Brief of Appellant at 28 n. 11, it fails to provide a fully developed argument on this point, relying instead on unsupported assertions and the conclusion that “the sole issue is ... whether all of the evidence was properly admitted against Luz Rodriguez.” Id. We therefore deem any such claim to be waived. Commonwealth v. Montalvo, 434 Pa.Super. 14, 641 A.2d 1176 (1994).

The decision to grant a new trial is within the trial court’s discretion, and will not be reversed unless it represents an abuse of discretion. Commonwealth v. Pirela, 398 Pa.Super. 76, 580 A.2d 848, appeal denied, 527 Pa. 672, 594 A.2d 658 (1991). Based upon the above analysis, we cannot find that the trial court abused its discretion in ordering a new trial to serve the ends of justice in this case. See generally Commonwealth v. Sindel, 205 Pa.Super. 355, 208 A.2d 894 (1965).

Even if the above analysis did not govern this case, however, the grant of a new trial would be proper on the grounds that Luz Rodriguez was entitled to object to the search of 2928 North Ella Street. While “an occupant other than the owner ... [of a home must] demonstrate a significant and current interest in the searched premises in order to establish an expectation of privacy,” United States v. Garcia, 741 F.2d 363, 366 (11th Cir.1984), “a defendant who is more than a casual visitor to the ... dwelling in which illegal drugs have been seized has the right under the Fourth Amendment to the United States Constitution ... to challenge the search and seizure of the illegal drugs which he is accused of possessing.” State v. Adkins, 176 W.Va. 613, 616, 346 S.E.2d 762, 765-66 (1986); see also United States v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir.1988); United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir.1986).

Since the merits of an objection to the search of 2928 North Ella Street by Luz Rodriguez were not examined below, there is not a detailed record relevant to such a claim on appeal. We can, however, discern from the record the close familial relationship between Luz Rodridguez and the owner of the searched home (her sister and co-defendant Aida), the fact that Luz was legitimately on the premises when the relevant search occurred, and the fact that Luz was charged with possessory offenses related to the evidence seized in that search. While not individually dispositive under Rakas, these considerations militate in favor of an objection by Luz Rodriguez to the search of her sister’s home. See Commonwealth v. Evans, 488 Pa. 38, 40, 410 A.2d 1213, 1215 (1979)(finding that overnight guest had legitimate expectation of privacy in host’s apartment); Commonwealth v. Rowe, 433 Pa. 14, 249 A.2d 911 (1969)(fínding that defendant had reasonable expectation of privacy in home of co-defendant’s father); Commonwealth v. Govens, 429 Pa.Super. 464, 632 A.2d 1316 (1993), appeal denied, 539 Pa. 675, 652 A.2d 1321 (1994). The case of Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343 (1974), cert. denied, 420 U.S. 937, 95 S.Ct. 1147, 43 L.Ed.2d 414 (1975), is also instructive. In that case, our supreme court affirmed an individual’s standing to object to the search of his co-defendant’s fiancee’s home where marijuana found in that home linked the individual to a murder via a robbery of, among other things, the marijuana. The court reasoned as follows:

The prosecution by challenging the appellant[’s] standing at the suppression hearing was asserting a position contrary to its position at trial. Appellant could have expressly claimed an interest in the marijuana during the suppression hearing and been protected from use of his admission at trial. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). But if no robbery took place, as he contended, and he had no possessory interest in the marijuana, he would have had to perjure himself to obtain standing. Under these circumstances, the prosecution cannot challenge [appellant’s] standing by claiming he had no interest in the marijuana.

Weeden, supra, at 450-51, 322 A.2d at 351. Similarly, in this case the prosecution maintained that Luz Rodriguez had joint possession and dominion of the drugs at North Ella Street; indeed, that she and her sister controlled the drugs and contraband there as part of a drug-dealing scheme. Such a circumstance, if true, would militate strongly in favor of Luz Rodriguez’s objection to the search of her sister’s home. See Govens, supra, at 471-72, 632 A.2d at 1319 (finding nothing to support claim that defendant lacked standing under Rakas to challenge search where defendant “was present when the police entered ... had been engaged in selling cocaine from the apartment and ... apparently had dominion and control over the apartment as well as the cocaine and other evidence that was seized.”). Of course, if Luz Rodriguez did not have such dominion and control, any assertion of standing on her part would be weakened. That circumstance, however, would also be inconsistent with the prosecution’s substantive position. Weeden was decided before Rakas, but Rakas does not alter the status of the factors present in the instant case as indicia of a legitimate interest in the privacy of searched premises. While no bright line demarcates the set of cases involving legitimate expectations of privacy, there seems little doubt on this record that Luz Rodriguez had such expectations in the home of her sister in this case. This analysis provides an independent reason to affirm the trial court’s grant of a new trial to Luz Rodriguez based upon suppression of the evidence taken from 2928 North Ella Street.

Based on the foregoing, we affirm the order granting Aida Rodriguez an arrest of judgment and discharge and the order granting Luz Rodriguez a new trial.

Orders AFFIRMED.