author: MONTEMURO, Judge: DEL SOLE, Judge, JOHNSON, Judge,

text:
    581 A.2d 203
    ELCOMP, INC., Appellant, v. Peter J. DROLET, Appellee. (Two Cases)
    Superior Court of Pennsylvania.
    Argued May 8, 1990.
    Filed Sept. 25, 1990.

      Francis C. Rapp, Jr., Pittsburgh, for appellant.
    Daniel McIntyre, McKeesport, for appellee.
    Before CAVANAUGH, ROWLEY, McEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   MONTEMURO, Judge:

In these consolidated appeals, we address the October 12, 1988 Order of the Court of Common Pleas of Allegheny County, dismissing with prejudice appellant’s (Elcomp, Inc.) cause of action against appellee, Peter J. Drolet. We reverse.

Elcomp filed a complaint in assumpsit on March 31, 1987, alleging that Peter Drolet owed Elcomp, a computer software company, approximately five thousand dollars ($5,000) reimbursement for monies paid as a draw against commissions. Elcomp asserted that Drolet did not earn any commissions during his five and one-half months of employment with Elcomp and, therefore, under the terms of his employment contract, he was required to reimburse the company for the amount of his draw. Drolet answered the complaint and disputed Elcomp’s interpretation of his employment contract. Drolet contended that, pursuant to an oral agreement, he was to be paid a yearly income of fifty thousand dollars ($50,000), and any draws he received would be paid only if he earned commissions.

On February 26, 1988, this matter was heard by a panel of arbitrators who entered an award in favor of Drolet. Elcomp filed a timely notice of appeal from the arbitration award and waived a jury trial. This matter was scheduled for a nonjury trial on October 12, 1988. Notice of the trial was published in the August 9, 1988 edition of the Pittsburgh Legal Journal, the official newspaper for the Allegheny County Court System.

On October 5,1988, Daniel McIntyre, Esquire, counsel for Drolet, sent a letter and a copy of a motion for continuance of a non-jury trial to Dan Brookhart, Esquire, counsel for Elcomp, advising Elcomp that the motion would be presented to the trial court on Friday, October 7, 1988. The continuance was being requested because Drolet was unavailable due to out of town business. Brookhart was no longer associated with the firm representing Elcomp so Stanley Stein, Esquire, responded to this correspondence. On October 7,1988, Stein called McIntyre to advise him that Elcomp would not oppose the request for a continuance. Unable to reach McIntyre, Stein left a message asking McIntyre to return his call but not explaining the nature of the call. Counsel exchanged calls throughout the day, but never spoke to each other or left messages explaining the purpose of the calls. McIntyre was in fact calling to advise counsel for Elcomp that he was unable to see the trial judge that day and was, therefore, abandoning his attempt to have the trial continued.

On October 12, 1988, Elcomp failed to appear at trial, believing the case had been continued despite not having confirmed the same with opposing counsel or the trial court. Drolet appeared ready for trial and moved to dismiss the case when Elcomp did not appear. Citing Elcomp’s failure to appear, the trial court granted Drolet’s motion and dismissed the case with prejudice. See Pa.R.C.P. 218. The record reveals that on October 12, 1988, Drolet’s counsel never advised the trial court concerning the developments of the previous week.

The entry of a judgment non pros will not be reversed absent a manifest abuse of discretion. “A court may properly enter a judgment of non pros when a party to a proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses.” Carroll v. Kimmel, 362 Pa.Super. 432, 437, 524 A.2d 954, 956 (1987) (citations omitted).

Instantly, the record from the October 12, 1988, proceeding reveals that when no one appeared on behalf of Elcomp, the trial court entered a judgment of non pros. The dissent believes that this is precisely what Rule 218 contemplates. We disagree. As we recognized in Valley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 581 A.2d 193 (en banc) (1989), a judgment of non pros, whether entered pursuant to Rule 218 or otherwise, is properly entered following a consideration and a balancing of the equities present in a particular case. When the trial court gives note to the equitable considerations and determines, in its discretion, that a non pros judgment is appropriate, an appellate court will not reverse this exercise of trial court discretion absent a manifest abuse. In the present case, Elcomp was obviously not ready for trial under Rule 218, because Elcomp failed to appear. However, the trial court abused its discretion when it stopped with this determination. Rule 218 contemplates that the trial court will base its non pros judgment on a finding that, to the trial court’s knowledge, the failure of a party to be ready for trial is not satisfactorily excused. With a brief discussion with counsel present on behalf of Drolet, the trial court would have quickly learned of the abandoned continuance motion and the events of the preceding week. Further, the court could have heard argument from Drolet concerning any prejudice resulting to Drolet from Elcomp’s failure to appear. The trial court abused its discretion when it based the entry of the non pros judgment on one fact: the absence of Elcomp. Without considering the possibility of a satisfactory excuse for Elcomp’s absence or prejudice to Drolet, the trial court could not properly exercise its discretion in this matter. It is the trial court’s complete failure to balance the equitable considerations in this case which necessitates reversal. We need not address whether the non pros judgment would have been proper in the event that the trial court had engaged in a consideration of the equities as they existed on October 12, 1988.

We therefore reverse and remand for further proceedings in the trial court. Jurisdiction is relinquished.

ROWLEY, J. concurs in the result.

DEL SOLE, J. files a concurring opinion.

JOHNSON, J. files a dissenting opinion joined by FORD ELLIOTT, J.

DEL SOLE, Judge,

concurring.

While I concur in the result reached by the majority in this case, I write separately to point out that I believe the trial court’s error caused the defendant not to file a post trial motion to remove the non pros.

The facts in this case, briefly stated, show that on the date when the case was called for trial, the plaintiff did not appear, and on motion of the defendant, the court dismissed the matter with prejudice.

Pa.R.C.P. 218(a) provides that where a plaintiff is not ready when a case is called for trial “the court may enter a non suit on motion of the defendant or á non pros on the court’s own motion.” Here, since the defendant made the motion to dismiss, the court, in effect, entered a non suit. Pa.R.C.P. 227.1(a)(3) requires the filing of a post trial motion to remove a non suit.

However, since the trial court did not clearly label its order the granting of a non suit and since a good deal of confusion exists with regard to the appropriate practice in this case, I would join the result of the majority that would excuse the failure to file a post trial motion and vacate the non suit.

JOHNSON, Judge,

dissenting.

I respectfully dissent. The trial court dismissed the case upon defendant Drolet’s motion because the plaintiff failed to appear. Therefore, Pa.R.C.P. 218, 42 Pa.C.S., is the rule applicable to the procedure followed in this case. A dismissal under Rule 218 does not require a showing of prejudice. Further, we are limited to the contents of the certified record on appeal.

At the time that the trial court entered the nonsuit under review on this appeal, there was nothing in or on the record to excuse the plaintiffs non-appearance when the case was called. The discretionary dismissal of the case was, therefore, free from abuse.

Had the plaintiff made a proper record, alleging or establishing a satisfactory excuse for the non-appearance, we would then be faced with deciding whether a subsequent decision to remove or not to remove the nonsuit should be upheld. The mere filing of a Motion to Reinstate Plaintiffs Claim and Re-Schedule Non-Jury Trial is insufficient to compel removal of a nonsuit, even where accompanied by the unsworn argument of counsel at a subsequent hearing at which no testimony is offered or taken. Accordingly, I must respectfully dissent.

On October 12, 1988, the Honorable Robert A. Doyle dismissed Elcomp, Inc. (Elcomp)’s cause of action against Peter J. Drolet (Drolet). The case was dismissed with prejudice for failure to prosecute. The order was issued in open court and entered upon the record. Trial Transcript, October 12, 1988, page 2. The case had been advertised in the Pittsburgh Legal Journal on August 9, 1988. In that advertisement, the case had been listed for trial before Judge Doyle on October 12, 1988, in Courtroom 617, City-County Building, at 9:00 o’clock. Id. At that time and place, Judge Doyle placed these facts on the record. He then inquired whether there was anybody in the hallway and whether the plaintiff was present. The court received answers in the negative to both questions. Id.

Rule 218 of our Pennsylvania Rules of Civil Procedure, as applicable at the time of the order in question, provided, in its entirety:

Rule 218. Party Not Ready When Case is Called for Trial
When a case is called for trial, if without satisfactory excuse a plaintiff is not ready the court may enter a non-suit on motion of the defendant or a non pros on the court’s own motion. If without satisfactory excuse a defendant is not ready, the plaintiff may proceed to trial.

The transcript of October 12, 1988 makes it clear that we are reviewing a nonsuit entered pursuant to Rule 218, where neither Elcomp nor its counsel appeared in Courtroom 617 on the day of trial. Therefore, the record before us on review consists only of the proceedings of October 12, 1988. If an appeal is permitted directly from the entry of the nonsuit in this case, there is absolutely nothing on the record to support the majority’s conclusion that Judge Doyle abused his discretion.

The majority, relying on Carroll v. Kimmel, 362 Pa.Super. 432, 437, 524 A.2d 954, 956 (1987), asserts that Judge Doyle could not properly exercise his discretion in this matter without considering the possibility of prejudice to Drolet. Majority opinion, pages 205, 205. However, prejudice is not an element to be considered in the direct review of a Rule 218 dismissal. The only element which the trial court need consider prior to entry of a nonsuit on motion of the defendant, where the party is not ready when the case is called for trial, is whether the plaintiff is “without satisfactory excuse.” Rule 218, supra. A review of the record supports the action of Judge Doyle, in that the plaintiff did not answer the call, the case had been properly advertised, and the defendant moved for a nonsuit. Transcript, October 12, 1988,' page 2.

I cannot join in my colleague’s conclusion that a trial judge abuses his discretion by entering a nonsuit upon failure of the plaintiff to appear. This is precisely what is contemplated by Rule 218. And since the order may be entered in any situation where a satisfactory excuse is not tendered, a direct appeal from such an order leaves little to be reviewed. The only question on direct appeal would be: at the time the order was entered, was there any satisfactory excuse before the trial court?

Carroll v. Kimmel, supra, upon which the majority relies, is inapposite to the present appeal. In that case, we were called upon to review a judgment of non pros entered pursuant to Pa.R.C.P. 1037(c), which governs judgments upon default or admission. The plaintiff in that case had filed a notice complaint with the arbitration panels for health care against a physician. The notice was filed one day less than two years following the death of Rita Carroll, by a trustee ad litem for her estate. A full complaint was not filed for another five years. We followed Gallagher v. Jewish Hospital Assoc., 425 Pa. 112, 228 A.2d 732 (1967) and considered whether there had been (1) a want of due diligence, (2) no compelling reason for the delay, and (3) prejudice to the adverse party. Those criteria are proper where the court is called upon to review the entire record to determine whether judgment by default may be entered. James Brothers Lumber Co. v. Union Banking & Trust Co. of DuBois, 432 Pa. 129, 132, 247 A.2d 587, 589 (1968).

Nonsuits entered pursuant to Rule 218 need not, and should not, be treated as if they involved considerations identical to those found in Rule 1037(c) judgment-by-default matters. The petition practice established through Pa.R. C.P. 206-209 provides a sound basis by which the trial court can assess whether a “satisfactory excuse” may have existed at the time the Rule 218 nonsuit on defendant’s motion was entered. If a party, rather than filing an appeal directly from the entry of nonsuit, submits a petition to the trial court to remove a Rule 218 nonsuit without a satisfactory excuse for being unprepared, the court can properly refuse to take off the nonsuit. Farabaugh Chevrolet-Oldsmobile, Inc. v. Covenant Management, Inc., 361 Pa.Super. 234, 522 A.2d 100 (1987); Snyder v. Port Authority of Allegheny County, 259 Pa.Super. 448, 393 A.2d 911 (1978).

Where this petition practice is followed, both the trial court and any reviewing court has record evidence on the issue of whether the nonsuit should be removed. Upon such a record, it is the decision to remove, or the failure to remove, after consideration of all the evidence, which is subject to judicial review. Then, the issue on appeal is not whether the trial court should have entered the nonsuit, but whether reasons exist for opening the judgment, i.e., for removing the nonsuit.

Elcomp would argue that a satisfactory excuse did, in fact, exist for its non-appearance when the case was called for trial on October 12, 1988. In seeking to establish this, the relevant time period would appear to be the period from October 5, 1988 to October 12, 1988. During this period, there may have been at least several attempts at communication between counsel for Elcomp and counsel for Drolet. However, the record does not provide us with petition, answer, and depositions on disputed issues of fact. Pa.R. C.P. 206-209 or with any testimony.

The majority does not cite to any pleadings contained in the certified record. It appears to rely upon the Brief for Appellant and the Brief for Appellee to establish those “facts” which have “never been disputed.” In doing so, the majority accepts as “fact” matters on which the trial court has not passed.

Our supreme court has instructed us that, in resolving those issues properly before us, we may only look to the record prepared in the trial court. Alleging facts in a brief on which a trial court has not passed has been specifically condemned. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 214-15, 489 A.2d 1291, 1296 (1985); see Commonwealth v. Young, 456 Pa. 102, 114-16, 317 A.2d 258, 264 (1974) (collecting civil cases); Commonwealth v. Lowry, 385 Pa.Super. 236, 246, 560 A.2d 781, 785-86 (1989). For our court to attempt, now, to resolve issues based upon such allegations is precisely the type of review and analysis that was so roundly condemned by our Supreme Court in Reilly, supra.

Upon the certified record before us, we are limited to one, unverified motion prepared by counsel for Elcomp. The motion seeks to reinstate Elcomp’s claim and have the de novo appeal from arbitrators rescheduled. The Motion to Reinstate is time-stamped as having been filed in the Court of Common Pleas on October 18, 1988, although attached under the same document binder as the order of the trial court denying the motion, which order is dated October 18, 1988 and bears a prothonotary’s time stamp of October 20, 1988.

We also have the unsworn argument of opposing counsel recorded at a hearing held October 18, 1988 before Judge Doyle. I do not find these items an adequate substitute for a certified evidentiary transcript from which the trial court would have been compelled to reach findings of fact and conclusions of law. Cox v. Felice Perri & Sons, 412 Pa. 415, 195 A.2d 79 (1963). The absence of a complete evidentiary record in this case illustrates why a direct appeal should not be permitted from the entry of a nonsuit on motion of the defendant pursuant to Pa.R.A.P. 218. While the majority seemingly finds no dispute over what transpired between counsel, I find the transcript of the October 18, 1988 hearing to be filled with clear disagreements between counsel, the trial court and among the parties regarding what occurred.

Judge Doyle, in his Opinion Supporting Orders of Court of October 12 and 18, 1988, which Opinion was prepared and filed on November 22, 1988 pursuant to Pa.R.A.P. 1925, stated:

Plaintiff appeals from Orders entered October 14 and 20, 1988. We find that Orders were not entered on these dates. If Plaintiff is alleging that the Orders were docketed on those dates, we still have nothing of record upon which to base an Opinion. We entered our Orders because the absence of Plaintiff s counsel was not satisfactorily explained and the explanation offered was refuted by counsel for Defendant.

Opinion, Doyle, J., filed November 22, 1988, pages 1-2. (emphasis added).

Elcomp has included a copy of a Motion for Reconsideration of Dismissal of Plaintiffs Claim in the Reproduced Record filed with this court on April 10, 1989. However, the original of that Motion has not been included in the original record, nor has it been referred to in the entries in the certified docket. In determining this appeal, we should disregard that document and its contents entirely. It remains well settled that an appellate court can consider only the certified record on appeal when reviewing the case. Barner v. Barner, 364 Pa.Super. 1, 527 A.2d 122 (1987). Of equal importance, we have before us in this case the statement by the trial judge that “the explanation offered [for non-appearance] was refuted by counsel for Defendant,” quoted above.

The majority seemingly would place upon our trial judges ¡he burden of determining, at the time a case is called for trial, all of those factors which more properly are presented as part of the petition and rule practice. Suggestions of “a brief discussion with counsel present” and receiving “argument____concerning any prejudice resulting to [defendant] from [plaintiffs] failure to appear” is exactly the type of extended procedure which Rule 218 is designed to avoid. The majority’s suggestions appear to rule out the filing of any petition to vacate or open the nonsuit. But relying on brief discussions and unverified motions is the kind of procedure upon which our Supreme Court looked askance in Cox v. Felice Perri & Sons, supra.

In Cox, our Supreme Court reviewed, and reversed, an order which struck off a judgment of non pros because the reasons advanced to strike the judgment were all outside the certified record. On facts which closely parallel the situation on this appeal, the court said:

[T]he instant motion does not, nor does it purport to, attack the entry of this judgment for any defects apparent on the face of this record; on the contrary, the reasons assigned in the motion for the removal of the judgment are dehors the record of the judgment. The appropriate proceeding would have been a petition and rule to open the judgment, a proceeding which would necessarily have involved the taking of testimony to establish the verity of the facts alleged for the removal of the judgment ... By the procedure adopted, clearly and patently erroneous, [defendant’s] counsel was precluded from contradicting by testimony the facts averred in the motion____ In the third place, unlike a review of an order granting the opening of a judgment wherein the test is whether there was an abuse of discretion on the part of the court below, on our review of this order we look only to the record to ascertain the presence of any defects and such an examination of the record clearly reveals no such defects.

412 Pa. at 417-18, 195 A.2d at 80-81.

The majority does not explain why this court should accept, as facts, allegations contained in an unverified motion where the trial court has expressly rejected those allegations and denied relief. In my view, upon the record before us, Elcomp has not sustained its burden of showing that its absence from trial on October 12, 1988 was accompanied by a satisfactory excuse. I therefore cannot find any reasonable basis for removing the nonsuit.

Thus, I dissent.

Joined by FORD ELLIOTT, J.

      . The order dismissing Elcomp’s complaint was apparently docketed on October 13, 1988. On October 18, 1988, Elcomp presented a motion seeking reinstatement of its case. Although this motion was arguably the functional equivalent of a petition to open the judgment of non pros, the motion did not address the specific requisites for the grant of a petition to open. See Narducci v. Mason’s Discount Store, 518 Pa. 94, 541 A.2d 323 (1988) (three factors must be present in order to open a judgment of non pros: (1) the petition to open must be promptly filed; (2) the default or delay must be reasonably explained; and (3) facts must be shown to exist which support a cause of action). We shall review the merits of the October 12, 1988, non pros judgment. A direct appeal may be filed from the entry of a non pros judgment. See Valley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 581 A.2d 193 (en banc) (1990).

      . Elcomp and Drolet each requested and were granted a continuance resulting in the delay prior to the arbitration hearing.

      . The dissent maintains that these facts were expressly rejected by the trial court. This simply is not true. It has never been disputed that Drolet did initially intend to request a continuance of the trial scheduled for October 12, 1988, and that Drolet mailed a copy of a prepared motion for continuance to Elcomp’s counsel. Additionally, it has never been disputed that between the mailing of this correspondence concerning the desired continuance and the date set for trial, the attorneys involved in this matter attempted unsuccessfully, for whatever reason, to communicate with each other by phone. See Brief for Appellant at 5-6 and Brief for Appellee at 3-4. The dissent concludes that the transcript from the October 18, 1988, hearing demonstrates a disagreement between counsel as to what transpired between counsel in the week preceding the scheduled trial date. The disagreement between counsel concerns where the fault should be placed for the failed communication attempts. The answer to this disputed question has little relevance given the undisputed facts upon which we have relied in reaching our decision in this appeal. Finally, we are in full agreement with the dissent that the preferred procedure is for a party to file a petition to remove the non pros judgment with the trial court prior to considering the prospect of an appeal. Unfortunately, this procedure was not properly followed in the case at bar.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    581 A.2d 209
    James V. ELIA and Patricia May Elia, his wife, Appellants, v. ERIE INSURANCE EXCHANGE and Paul L. Richter, M.D., Appellees.
    Superior Court of Pennsylvania.
    Argued May 9, 1990.
    Filed Oct. 15, 1990.

      Kenneth W. Behrend, Pittsburgh, for appellants.
    Patricia L. Wozniak, Pittsburgh, for appellees.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   WIEAND, Judge:

In this appeal, we are asked to decide whether causes of action for (1) fraud and deceit and (2) an alleged violation of the Unfair Trade Practices and Consumer Protection Law can be maintained against a physician who, at the request of an insurance company, has examined a claimant and reported that he is physically able to return to work and is malingering. The trial court held that such actions were not cognizable and sustained preliminary objections in the nature of a demurrer to the counts of the complaint which attempted to state such causes of action. After careful review, we affirm.

Because a count of the complaint alleging a cause of action against the physician for defamation remains undecided, we must first determine whether an appeal has properly been taken from the order entering judgment in favor of the physician on two other counts of the complaint. “As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable.” Cloverleaf Development, Inc. v. Horizon Financial, 347 Pa.Super. 75, 81, 500 A.2d 163, 166 (1985), quoting Praisner v. Stocker, 313 Pa.Super. 332, 337, 459 A.2d 1255, 1258 (1983). This is because such an order is not final, as it does not effectively put the plaintiffs “out of court.” See: Cloverleaf Development, Inc. v. Horizon Financial, supra 347 Pa.Super. at 80, 500 A.2d at 166. See also: Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544-545 (1978); 42 Pa.C.S. § 742. Cloverleaf Development, Inc. v. Horizon Financial, supra, 347 Pa.Superior Ct. at 81, 500 A.2d at 166, citing Praisner v. Stocker, supra, 313 Pa.Superior Ct. at 339, 459 A.2d at 1258-1259. See also: Danko Development Corp. v. Econoclast Corp., 369 Pa.Super. 120, 534 A.2d 1108 (1987). Instantly, the counts against Dr. Richter for fraud and for violation of the Unfair Trade Practices and Consumer Protection Law, on which final judgments have been entered in favor of the defendant physician, are separate and distinct causes of action from the remaining defamation claim. Therefore, the present appeal is proper. See: Gatten v. Merzi, 397 Pa.Super. 148, 579 A.2d 974 (1990).

However, the general rule is not without exceptions. Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory, with respect to those causes of action dismissed. The plaintiff is “out of court” with respect thereto.

In reviewing the trial court’s order sustaining preliminary objections in the nature of a demurrer, we accept as true all material facts alleged in the complaint, as well as inferences reasonably deducible therefrom. Ervin v. American Guardian Life Assurance Co., 376 Pa.Super. 132, 133, 545 A.2d 354, 355 (1988), allocatur denied, 522 Pa. 604, 562 A.2d 826 (1989).

In determining whether the factual averments of a complaint are sufficient to state a cause of action, all doubts must be resolved in favor of the sufficiency of the complaint. Slaybaugh v. Newman, 330 Pa.Super. 216, 479 A.2d 517, 519 (1984). A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Id.; see also Cianfrani v. Commonwealth, State Employees’ Retirement Board, 505 Pa. 294, 479 A.2d 468, 469 (1984).

Id., quoting Alumni Ass’n v. Sullivan, 369 Pa.Super. 596, 600-601, 535 A.2d 1095, 1098 (1987), allocatur granted, 520 Pa. 586, 551 A.2d 213 (1988).

James Elia received back injuries as a result of a two car accident on April 16, 1987. Erie Insurance Exchange paid first party benefits consisting of medical expenses and lost wages. On January 26, 1988, Elia was examined by Dr. Paul L. Richter, a neurologist. As a result of that examination, Dr. Richter submitted a report to Erie Insurance in which he opined that Elia was physically able to return to work as a bricklayer and accused him of malingering. On the basis of this report, Erie Insurance terminated the payment of first party benefits. Elia and his wife, Patricia May, then commenced the instant action against Erie Insurance and Dr. Richter. The claim against Dr. Richter was set forth in three separate counts, alleging causes of action for (1) defamation; (2) fraud and deceit; and (3) a violation of the Unfair Trade Practices and Consumer Protection Law. The trial court, as we have observed, sustained preliminary objections in the nature of a demurrer to the second and third counts and dismissed those counts with respect to Dr. Richter.

To make out a cause of action for fraud, a plaintiff is required to allege and prove (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker that the recipient will thereby be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient as the proximate result. Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90, 108, 464 A.2d 1243, 1252 (1983). The averments of appellants’ complaint have failed to state a cause of action against Dr. Richter for fraud. Richter was employed by Erie Insurance to examine Elia to aid Erie in determining its continued liability to Elia for first party benefits. Where a physician has been retained by a third party to conduct an examination of another person and report the results to the third party, the physician does not enter into a physician-patient relationship with the examinee and is not liable to the examinee for any losses he suffers as a result of the conclusion the physician reaches or reports. Ervin v. American Guardian Life Assurance Co., supra. Richter’s report was made to and at the instance of Erie Insurance. As such, he made no misrepresentation intended to induce Elia to act and, indeed, no action was taken by Elia in reliance on the physician’s report to the insurance company. Dr. Richter’s examination was not performed to treat or advise Elia but solely for the purpose of enabling Erie Insurance to better evaluate Elia’s continuing claim. Thus, Elia can have no cause of action against Dr. Richter for common law fraud and deceit.

A private cause of action for damage caused by unfair or deceptive business practices has been created by the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-9.2(a), in the following language:

§ 201-9.2 Private actions
(a) Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act, may bring a private action, to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper.

This statutory provision, however, does not create a cause of action in favor of Elia against Dr. Richter. Elia did not purchase services or goods from Dr. Richter, whose services were purchased by Erie Insurance to assist it in evaluating Elia’s claim against Erie. The statute does not create a new cause of action on behalf of an insurance claimant who is dissatisfied with a physical examination and report made by an independent physician employed by the insurance carrier to aid in evaluating a claim being made against it. Compare: Gatten v. Merzi, supra.

The order of the trial court sustaining preliminary objections in the nature of a demurrer to Counts II and III of the complaint and entering judgment therein in favor of Dr. Richter is affirmed.

DEL SOLE, J., concurs in the result.

      . Act of December 17, 1968, P.L. 1224, No. 387, as amended November 24, 1976, P.L. 1166, No. 260, § 1, 73 P.S. § 201-1 et seq.


author: HOFFMAN, Judge:

text:
    581 A.2d 212
    COMMONWEALTH of Pennsylvania v. Robert RAKES, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 4, 1990.
    Filed Oct. 10, 1990.
    Petition for Allowance of Appeal Denied Feb. 19, 1991.

      Richard Werner, Asst. Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before FORD ELLIOTT, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This appeal is from a judgment of sentence for statutory rape, involuntary deviate sexual intercourse, and corruption of a minor. Appellant contends that the trial court erred in (1) allowing the Commonwealth to introduce into evidence a letter written by the victim’s mother; and (2) admitting the hearsay testimony of two witnesses. For the reasons that follow, we affirm.

On March 28, 1987, appellant was arrested and charged with one count each of statutory rape, involuntary deviate sexual intercourse, indecent assault, and corruption of a minor. The charges were based on allegations of sexual contact between appellant and his minor stepdaughter that occurred on several occasions between 1980 and 1986. On June 23, 1988, following a jury trial, appellant was found guilty of statutory rape, involuntary deviate sexual intercourse, and corruption of a minor. Timely post-verdict motions were filed and denied, and on February 3, 1989, appellant was sentenced to an aggregate term of imprisonment of five-to-twenty years. This timely appeal followed.

The facts giving rise to the charges against appellant were aptly summarized by the trial court as follows:

The victim stated that the incidents of sexual abuse by [appellant] initially started when she was in middle school and that [appellant] would put his hand in her “vaginal area” while giving her horsey-back rides in the North Side area of Pittsburgh. [N.T. June 21-23, 1988 at 24-25.] The victim then testified that while visiting [appellant] on the North Side at a house on Charles Street, “We would have intercourse where he would put his penis inside of my vagina area.” [Id. at 26.] Subsequently, the victim testified to having sexual relations with [appellant] in the basement of the family church in the Hill District [Id. at 38], at a house in the Hill District [Id. at 29], and on a bus [Id. at 30]. The victim even testified that [appellant] would “rub her vagina” while visiting her at the Schuman Center, where she was placed for behavioral problems. [Id. at 33.] In short, the victim testified that the sexual incidents occurred “Mostly every time my mother was gone. Every time my mother wasn’t home or something.” [Id. at 35.] The incidents continued until the victim was placed in the Circle C home (for troubled youths) and returned from a visit with [appellant] smelling of alcohol. After this event, a counselor at the home, Yvonne Bunatti, inquired of the victim about “[h]er [s]ecret” that the victim had previously mentioned, and the victim told the counselor the entire story about the sexual abuse. [Id. at 88-96.]

Trial Court Opinion at 2.

Appellant initially contends that the trial court erred by allowing the Commonwealth to enter into evidence, during cross-examination of the victim’s mother, a letter written to the victim by her mother. The letter stated in pertinent part the following:

I do not feel bad about court. You are doing the right think [sic]. In my heart I do not hold anything against you. I am praying for you. I know God is on your side. My love will not change. I respect you because I know it will not be easy. Do not be threatened .... You will not be asking yourself should I have done the right thing. You are doing the right thing. Try not to dwell on it. Just do it.

N.T. June 21-23, 1988 at 187-88.

Appellant maintains that this letter was improperly admitted into evidence because the Commonwealth failed to disclose it prior to trial, despite the fact that appellant had requested discovery. Appellant argues that the Commonwealth’s failure to disclose was in violation of Pa.R.Grim.P. 305B(l)(f) which mandates discovery of “any tangible objects, including documents, photographs, fingerprints, or other tangible evidence.”

The Rules themselves contemplate situations where the Commonwealth does not discover evidence pretrial. Thus, according to Pa.R.Crim.P. 305D, “[i]f prior to or during trial, either party discovers additional evidence ... which is subject to discovery under this rule ... such party shall promptly notify the opposing party or the court of the additional evidence____” Moreover, our Supreme Court, in Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175 (1983), noted that the prevailing view in this Commonwealth is that “the prosecution does not violate discovery rules when it fails to provide the defense with evidence that it does not possess and of which it is unaware during pre-trial discovery____” Id,., 500 Pa. at 251 n. 3, 455 A.2d at 1177 n. 3.

Here, it is undisputed in the record that the Commonwealth was unaware of the existence of the letter until the first day of trial, and that the prosecutor informed defense counsel of the existence of the letter as soon as he became aware of it. N.T. June 21-23, 1988 at 43. Thus, it is apparent that the Commonwealth complied with the discovery rule and Bonacurso. Appellant, nevertheless, alleges that the admission of the letter was specially prejudicial because counsel “did not have the opportunity to prepare sufficiently for his direct examination of [the victim’s mother].” See Brief For Appellant at 10. We cannot agree.

The mother of the victim was the first witness presented in the defense’s case in chief. She testified that the victim may have resented her for not trying to obtain custody of the victim. See id. at 128-29. The apparent purpose of her testimony was to support her husband, appellant, by suggesting that her daughter may have had a motive to fabricate the charges against him. See N.T. June 21-21, 1988 at 122-31. On cross-examination, the Commonwealth proffered the letter to impeach the mother’s testimony, by suggesting that she had been supportive of her daughter bringing these charges against appellant.

When viewed in the context of the entire trial, the effect of this impeachment was minimal. The mother’s testimony, even in its best light, was not particularly helpful to appellant’s case. Indeed, the record reflects that counsel himself had difficulty articulating the significance of the mother’s testimony. See id. at 140-42. During trial, the following discussion ensued at sidebar between the court and counsel for appellant:

THE COURT: [ ] Now what was the purpose of putting [the victim’s mother] on? What was the purpose of putting her on the witness stand? You called her as your witness.
MR. PALETTA: Number one, Your Honor, calling the victim’s mother to testify in the defense’s case. It raises an inference. Number two—
THE COURT: [] [W]hat inference did she raise[?]
MR. PALETTA: [ ] The fact that she testified in favor of the defendant, her husband, in this case should raise an inference that—
THE COURT: Do you feel that she has testified in favor of her present husband?
MR. PALETTA: To a degree, Judge, not completely. I’ve been surprised at one or two responses to questions, but to a degree, yes.
THE COURT: What did you think—what was your purpose in putting her on the witness stand?
MR. PALETTA: Number one, just in favor of the husband.
THE COURT: Well, wait a minute. Is it your impression that—do you think she has testified in favor of her husband? You glean that from the testimony?
MR. PALETTA: Judge, I attempted to establish her basis for her motive argument, basis of resentment____
****:]<*

See N.T. June 21-23, 1988 at 140-41. In light of the above-mentioned facts, we are satisfied that the introduction of the letter did not unduly prejudice appellant. Thus, because the Commonwealth promptly disclosed the letter once it discovered it, and because this late discovery did not prejudice appellant, we hold that the trial court properly admitted the letter into evidence.,

Appellant next contends that the trial court erred in permitting the testimony of both a counselor and a psychologist employed by a treatment center where the victim ■resided for three months. Appellant asserts that their testimony, which related statements made by the victim to them that implicated appellant, was inadmissible hearsay. We cannot agree.

It is well-settled that testimony regarding prior statements made by a declarant is admissible when the declarant is present in court and available for cross-examination. See Commonwealth v. Hamilton, 376 Pa.Super. 404, 409, 546 A.2d 90, 93 (1988) (citations omitted); see also Commonwealth v. Fanelli, 377 Pa.Super. 555, 559, 547 A.2d 1201, 1203 (1988) (en banc). Moreover,, this rule specifically has been applied in cases where the declarant is a child victim of a sexual assault. Thus, in Fanelli, we held that the testimony of a police officer that she was told by a six-year-old that a sexual assault happened at a particular time was not hearsay because the jury was afforded the opportunity to observe the declarant at trial, and the declarant was available for cross-examination. See Commonwealth v. Fanelli, supra, 377 Pa.Superior Ct. at 559, 547 A.2d at 1203.

The facts related to appellant’s claim are as follows. The Commonwealth’s first witness was the victim. She testified as to several incidents of sexual contact between herself and appellant. See N.T. June 21-23, 1988 at 24-37. She also testified to confiding in a counselor and a psychologist at Circle C (the treatment center where she resided) regarding these incidents. Id. at 39. Subsequently, a counselor at the Circle C program testified that the victim had told her that appellant had had sex with her from the time she was eight or nine years old. See id. at 89-96. In addition, a psychologist at Circle C testified that in counseling sessions the victim had related essentially the same account to him. See id. at 115-18. The victim in this case was fifteen years old at the time of trial. Moreover, the victim was present in court, testified, and was subject to cross-examination. Appellant thus had an opportunity to question the victim with regard to her allegations of sexual abuse, and the jury was able to view the victim at trial in order to assess her credibility. Thus, as we stated in Fanelli, “the prejudices sought to be avoided with the implementation of the hearsay rule were obviated.” Commonwealth v. Fanelli, supra, 377 Pa.Superior Ct. at 559, 547 A.2d at 1203. In light of the fact that the victim was present ai trial and available for cross-examination, we conclude that the trial court did not err in admitting the testimony of the counselor and the psychologist.

We should emphasize that this case is distinguishable from Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986), upon which appellant places principal reliance. See Brief For Appellant at 15-16. In Haber, the victims were aged four and five at the time of the alleged sexual abuse. Id,., 351 Pa.Superior Ct. at 80, 505 A.2d at 274. Furthermore, the five-year-old victim in that case was not permitted to testify to the identity of the alleged molester. Id., 351 Pa.Superior Ct. at 81, 505 A.2d at 274. However, the mothers of both victims were permitted to testify at trial as to what the victims had told them about the molestation, which included statements from the victims concerning the identity of their assailant. Id. We noted that “this testimony was crucial to the Commonwealth’s case because the testimony of the children themselves consisted mostly of monosyllabic answers to leading questions, and both children repeatedly stated that they were unable to remember details about what happened.” Id. The Haber court further noted that the testimony of both mothers were admitted despite the limitation on the one victim’s testimony, which prevented her from being questioned about her identification of her molester. Id., 351 Pa.Superior Ct. at 84, 505 A.2d at 276. For this reason, we held in Haber that the testimony of the victims’ mothers as to what their children had told them was inadmissible hearsay. Id., 351 Pa.Superior Ct. at 81, 505 A.2d at 274. Here, unlike Haber, the victim is fifteen years old, was available at trial for full cross-examination, and the case against appellant was fully established through the victim’s testimony. The out-of-court testimony here did not include details concerning elements of the offense that the victim herself was unable to provide. Thus, Haber does not require reversal in this case.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . The victim was approximately eight or nine years old when the contact began.

      . At trial, a demurrer was sustained to the charge of indecent assault.

      . Pa.R.Crim.P. 305B(l)(f) provides in pertinent part:
      In all court cases, on request by the defendant, ..., the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
      (f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence____

        Id.

      . For example, on cross-examination, the mother conceded that appellant had a number of opportunities to be alone with the victim. See N.T. June 21-23, 1988 at 133-37, 152-54.

      . Appellant relies on, inter alia, Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1984) and Commonwealth v. Grayson, 466 Pa. 427, 353 A.2d 428 (1976), which state that the discovery rules are based on the principle that "the defense [is] entitled to examine the statement of the witnesses in order to have a fair opportunity to cross-examine the witnesses.” See Brief For Appellant at 9 (quoting Commonwealth v. Grayson, supra, 466 Pa. at 429, 353 A.2d at 429). Appellant’s reliance on this line of cases is misplaced. Here, the victim’s mother was appellant’s own witness. As the Commonwealth aptly notes, "appellant's counsel was in a different position with respect to [the victim’s mother], his own witness, than defense counsel is with respect to prosecution witnesses as to whom his only knowledge of their likely testimony will come from review of their previous statements." See Brief
      For Appellant at 9.

      . Appellant also contends that the letter should not have been admitted into evidence because questions concerning its contents exceeded the scope of direct examination. As the Commonwealth notes, appellant failed to raise this issue in his post-verdict motions, and it is therefore waived. We note, however, that, in Commonwealth v. Snoke, — Pa.-, 580 A.2d 295 (1990), our Supreme Court recently reiterated that the scope of cross-examination is largely within the discretion of the trial court and will not be reversed in the absence of a clear abuse of discretion or an error of law. See id. at -, 580 A.2d at 300, (citing Commonwealth v. Schmidt, 437 Pa. 563, 263 A.2d 382 (1970)). In this case, it can be inferred from the mother’s direct testimony that she did not believe the victim’s allegations against appellant. Thus, the Commonwealth could properly impeach this portion of her testimony with the letter in question which tended to show that the mother may have believed her daughter was telling the truth. Accordingly, even if appellant had not waived this claim, it would be meritless.

      . At the time she was admitted to Circle C, the victim was approximately fourteen years old. See N.T. June 21-21, 1988 at 96.


text:
    581 A.2d 217
    COMMONWEALTH of Pennsylvania v. Claude E. VEALEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 4, 1990.
    Filed Oct. 17, 1990.

      Robert C. Brady, Washington, for appellant.
    Paul M. Petro, Asst. Dist. Atty., Donora, for the Com., appellee.
    Before FORD ELLIOTT, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This appeal is from an order dismissing appellant’s petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551. Appellant presents the following issues, set forth in his “Statement of Issues,” for our consideration:

(1) [Were] Trial Counsel ineffective in failing to move to suppress a confession, which had been obtained after twenty-four (24) hours of interrogation, after the [Appellant] being refused the right to an attorney and being offered Fifty Thousand ($50,000) dollar[s], for his making the statement?
(2) Was Trial Counsel ineffective in representing Appellant when counsel placed the needs of the Government, pursuing future prosecutions, ahead of their desire to pursue a vigorous defense on behalf of the Appellant?
(3) Were the Due Process Rights of the Appellant violated when the Trial Judge participated in an ex parte Plea Bargaining Negotiation with Defense Counsel, entering a private Plea Agreement and failing to advise the Defendant of the existence of such Agreement until eighteen (18) years later?

Appellant’s Brief at 3. For the reasons set forth below, we affirm.

On December 31, 1969, appellant and two other men murdered Joseph Yablonski, his wife and daughter. Appellant was arrested on January 20, 1970. On June 23, 1971, he pled guilty to three counts of murder and conspiracy. On September 3, 1976, appellant was sentenced to one term of incarceration of life imprisonment. No direct appeal was taken. Appellant filed a clemency application with the Pennsylvania Board of Pardons on May 28, 1987, which was denied on June 31, 1987. On September 23, 1987, appellant filed a pro se petition under the PCHA. In the petition, appellant requested a new trial, correction of sentence, or parole. Appellant also contended that he was indigent and requested that the court appoint a lawyer to represent him. The court declined to appoint counsel and denied the PCHA petition “since it raise[d] no justiciable issue for this court to decide____” See Trial Court Order, October 2, 1987. Appellant then filed his first appeal in this court. We vacated the trial court order and remanded for appointment of counsel and a hearing on appellant’s PCHA petition. On February 21, 1989, present PCHA counsel was appointed. Counsel filed a supplemental PCHA petition, and on November 8, 1989, a PCHA hearing was held to consider the issues raised by appellant. At the conclusion of the hearing, the court denied appellant’s petition. This timely appeal followed.

As a preliminary matter, we note that, generally speaking,

When a defendant enters a guilty plea the only legally cognizable issues in a post conviction proceeding are those which affect either the voluntariness of the guilty plea or the legality of the sentence.

Commonwealth v. Casner, 315 Pa.Super. 12, 16, 461 A.2d 324, 325 (1983) (citing Commonwealth v. Harris, 492 Pa. 381, 386 n. 2, 424 A.2d 1242, 1244 n. 2 (1981)).

However, where as here, an appellant attacks a plea of guilty on the basis that trial counsel’s ineffectiveness contributed to the plea ... we have permitted appellate review of the claim on the merits.

Commonwealth v. William Miller, 495 Pa. 177,179-80, 433 A.2d 1, 2 (1981) (footnotes and citations omitted). Here, appellant raises questions regarding the voluntariness of his plea, and alleges that counsels’ ineffectiveness was the basis for his decision to enter the plea. Accordingly, we will review his claims.

Appellant claims that his guilty plea was not voluntary because it was entered pursuant to the advice of trial counsel who were ineffective in: (1) failing to file a pre-trial motion to suppress an allegedly involuntary oral confession; and (2) placing the need of the Government to pursue future prosecutions ahead of their duty to pursue a vigorous defense on appellant’s behalf. He also argues that (3) his plea was not voluntarily entered as his right to due process was violated by counsels’ actions in entering into a plea agreement with the trial judge without appellant’s knowledge. We will address these claims seriatim.

In order to prevail on a claim of ineffective assistance of counsel, appellant must show that (1) his underlying contention possesses arguable merit; (2) the course chosen by counsel had no reasonable basis designed to serve his interests; and (3) counsel’s conduct prejudiced him. See, e.g., Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); Commonwealth v. Turner, 387 Pa.Super. 217, 220-21, 563 A.2d 1262, 1264 (1989).

Appellant first claims that his plea was involuntary because trial counsel was ineffective in failing to file a pre-trial motion to suppress an illegally obtained confession. In Commonwealth v. Larry Miller, 494 Pa. 229, 431 A.2d 233 (1981), our Supreme Court stated what must be proven to successfully attack a guilty plea in a PCHA hearing on these grounds.

[I]n order successfully to attack a guilty plea in a P.C. H.A. proceeding on the ground that it was the product of an involuntary pre-trial confession, one must demonstrate all of the following: “(1) an involuntary pre-trial confession ...; (2) that the guilty plea was primarily motivated by [the confession]; and, (3) that [appellant] was incompetently advised by counsel to plead guilty, in the circumstances, rather than stand trial.” Commonwealth v. Marsh, 440 Pa. 590, 593, 271 A.2d 481, 483 (1970).

Id., 494 Pa. at 235, 431 A.2d at 236 (emphasis in original). The Court went on to state that:

Conviction after a guilty plea is based not on the evidence in the hands of the Commonwealth, including a pre-trial confession, but rather on a defendant’s admission in open court that he committed the crime. The existence of an involuntary confession does not, in itself, prove that a defendant did not have the opportunity to make a reasonable choice, and thus it cannot, in itself, establish that the plea was not intelligently and knowingly entered. Thus, it is critical to prove not only that one’s confession was involuntary, but also that it “was the primary motivation for his plea of guilty.”

Id. (citations omitted) (emphasis added).

At the PCHA hearing appellant was questioned about why he pled guilty:

Q. [PCHA counsel]: Now, Mr. Yealey, what conversations with your attorneys led to your entering the plea of guilty? Why did you plead guilty then?
A. [appellant]: Well, I was told that Martin, a co-defendant, had been brought to Washington County and that he was going to testify against me and that the state would prefer that I be a witness instead of Martin. So, since he was going to testify against me, I figured I might as well go ahead. The attorneys said who was going to believe me over the FBI about the way they took the statement and the offers that they made. So the course was to go along with the state and testify. I had no other course but to—

N.T. November 8, 1989 at 13-14. Appellant thus gave many reasons for his guilty plea: (1) a co-defendant’s statement and willingness to testify; (2) his own confession; and (3) his evaluation that his prospects were better if he cooperated instead of his co-defendant. The record also reveals that appellant had further incentive to plead guilty because of the plea bargain he had made with the Commonwealth. See N.T. June 23, 1971, at 39-40. Thus, even assuming arguendo that appellant’s confession was involuntary and would have been suppressed had trial counsel filed the appropriate motion, appellant has not proved that his plea was primarily motivated by his allegedly involuntary confession. Thus, appellant’s claim that his guilty plea was the product of an involuntary confession is lacking in merit, and his derivative ineffectiveness claim must fail.

Appellant’s second claim is that trial counsel were ineffective for placing the need of the Government to pursue future prosecutions ahead of their desire to pursue a vigorous defense on appellant’s behalf. We cannot agree.

Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Appellant offers no specific evidence of how trial counsel put the Government’s interests ahead of his, and our review of the record reveals none. Accordingly, appellant’s underlying contention lacks arguable merit, and his ineffectiveness claim must fail.

Appellant’s final claim is that his plea was not voluntarily entered as his right to due process was violated by counsels’ entering into a plea agreement with the trial judge without appellant’s knowledge.

Appellant’s argument is based upon our Supreme Court’s decision in Commonwealth v. Evans, 434 Pa. 52, 252 A.2d 689 (1969). In Evans, the appellant sought review of the dismissal of his PCHA petition, arguing that the trial court improperly participated in the plea bargaining process. In granting the appellant a new trial on the basis of that participation, our Supreme Court opined that:

[T]he awesome effect of a guilty plea and the sensitive nature of the bargaining process makes certain safeguards essential. ‘Our concept of due process must draw a distinct line between, on the one hand, advice from and “bargaining” between defense and prosecuting attorneys and, on the other hand, discussion by judges who are ultimately to determine the length of sentence to be imposed.’
The trial judge should not participate in plea discussions____[because] [f]irst, the defendant can receive the impression from the trial judge’s participation in the plea discussion that he would not receive a fair trial if he went to trial before the same judge. Second, if the judge takes part in the preplea discussions, he may not be able to judge objectively the voluntariness of the plea when it is entered. Finally, the defendant may feel that the risk of not going along with the disposition which is apparently desired by the judge is so great that he ought to plead guilty despite an alternative desire.
For these reasons, we feel compelled to forbid any participation by the trial judge in the plea bargaining prior to the offering of a guilty plea.

Id., 434 Pa. at 54-57, 252 A.2d at 690-91. We recognize the important interests that Evans serves. However, after careful study, we are convinced that Evans is distinguishable from this case because the principles that case was designed to protect are not present here. Here, it is not disputed that appellant was unaware of the alleged agreement between trial counsel and the court. Appellant, therefore, could not have been intimidated by the court in his decision to enter his guilty plea. Furthermore, in this case, appellant entered into an unrelated agreement with the Commonwealth by which charges against him would be dropped in exchange for his guilty plea and cooperation in the prosecutions of his co-conspirators. See N.T. Guilty Plea, June 23, 1971 at 39-40. He therefore had substantial reasons for entering his plea that were unrelated to the alleged agreement between counsel and the court. Finally, assuming that the agreement in question actually did exist, we have carefully reviewed the record and the parties’ briefs, and find no evidence that appellant was prejudiced by it in any way, as he was unaware of it, and there is no suggestion as to how it adversely affected counsel’s stewardship. Under these circumstances, we are satisfied that, although the court may have acted erroneously in appearing to enter into an arrangement with trial counsel, that error did not result in prejudice to appellant. Therefore, appellant’s argument that he should be allowed to withdraw his plea because of the alleged agreement between trial counsel and the court is meritless.

For the reasons set forth above, we affirm the order dismissing appellant’s petition.

Order affirmed.

      . The PCHA has been repealed and replaced by the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA applies to all petitions for collateral relief filed on or after its April 13, 1988 effective date. Because the instant petition was filed before the effective date of the PCRA, it must be evaluated under the former Act.

      . We note our disapproval of the brief appellant’s counsel has filed. Appellant’s brief violates Pa.R.A.P. 2119(a), which, in relevant part, states:
      (a) General Rule. The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctly displayed—the particular point therein, followed by such discussion and citation of authorities as are deemed pertinent.

        Id. Rule 2119(a). Appellant fails to address each of the four issues raised on appeal separately in the “Argument" section of his brief. Despite Appellant’s disregard of Rule 2119(a) and the resulting lack of clarity and precision in the presentation of his contentions, we shall consider each of appellant’s arguments.

      . In support of this claim, appellant introduced testimony of trial counsel and two letters from the trial judge that suggest the existence of an arrangement. However, we note that the PCHA court explicitly held that no agreement existed between the trial court and trial counsel. See N.T. November 8, 1989 at 83. For the purpose of evaluating appellant’s argument, we will assume that the agreement exists.

      . These charges included burglary, larceny and robbery. The Commonwealth also agreed to recommend that the federal authorities drop charges pending against appellant. See N.T. Guilty Plea, June 23, 1971 at 9-10.

      . Appellant also claims that he is entitled to a withdraw his plea because the special prosecutor promised to recommend that he be paroled, but later failed to keep that promise. However, careful review of the record reveals that the only agreement between appellant and the Commonwealth concerned the Commonwealth’s nolle prosse of certain charges and recommendations that the federal authorities drop outstanding charges against appellant. See N.T. June 23, 1971, at 9-10, 39-40. The prosecutor’s only statement regarding recommendations to the State Pardon and Parole Board was made at sentencing, over five years after appellant’s pica was entered. Thus, it would have been impossible for that statement to have affected appellant’s guilty plea. Furthermore, although the prosecutor did state that he might appear before the Board and bring the extent of appellant’s cooperation to the attention of the Board, he explicitly noted that the making of any recommendation regarding the possibility of parole and the nature of any such recommendation were both contingent upon appellant’s conduct while incarcerated. See N.T. September 3, 1976 at 20. Thus it is clear that the prosecutor’s statement concerned the possibility of parole, and therefore had nothing to do with the legality of the sentence imposed. See Rivenbark v. Comm. Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985). Accordingly, because appellant’s claim regarding the prosecutor’s alleged failure to keep promises made at sentencing does not involve the voluntariness of appellant’s plea or the legality of his sentence, he is not entitled to relief. See Commonwealth v. Casner, 315 Pa.Super. 12, 461 A.2d 324 (1983).


author: POPOVICH, Judge:

text:
    581 A.2d 221
    COMMONWEALTH of Pennsylvania, Appellee, v. G.C., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 25, 1990.
    Filed Oct. 17, 1990.
    G. C., pro se.
    H. Stanley Rebert, Asst. Dist. Atty., York, for Com., appellee.
    Before CIRILLO, President Judge, and POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from an order entered in the Court of Common Pleas of York County denying the appellant G.C.’s motion to expunge his arrest record. We vacate the trial court’s order and remand this case for a hearing on the issue.

The record indicates that in January, 1989, G.C. and his family moved from Maryland to Pittsburgh. G.C. rented a U-Haul van from Hanover Self Storage for the purpose of transporting furniture, along with other items, to the new residence. G.C. experienced problems with the U-Haul vans. As a result, he ordered his bank to stop payment on the checks issued for the rentals. Thereafter, G.C. wrote a letter to the U-Haul corporation expressing his dissatisfaction with the vans. Following negotiations with U-Haul, G.C. paid $440.00 to the company. On February 13, 1989, G.C. was charged under 18 Pa.C.S. § 3926 for theft of services. He was subsequently arrested, incarcerated, and later released on bail. No preliminary hearing was held.

On August 24, 1989, G.C., through his counsel, filed a motion for settlement pursuant to Pa.R.Crim.P. 314. G.C. asserted that “restitution ha[d] been made for all amounts allegedly owed to the U-Haul franchise.” Further, he stated that the court costs would be paid and that “[t]he District Attorney ha[d] no objection to this request.” See Motion for Settlement pursuant to Rule 314 of the P.R.C.P. [sic]. By Order dated August 24, 1989, the trial court, “finding that the interests of justice [had] been served,” dismissed the charges pending against G.C.

On September 11, 1989, G.C., pro se, moved to expunge his arrest record. On October 5, 1989, the trial court entered an order denying G.C.’s request. This appeal followed.

G.C. asks this Court to expunge his arrest record. Specifically, he raises four issues on appeal. They are as follows.

1. Did the trial court’s denial of appellant’s expungement motion constitute denial of appellant’s due process rights?
2. Did the trial court err in denying appellant’s expungement motion, following a Pa.R.Crim.P. 314 dismissal, because Rule 314 doesn’t specifically provide for ex-pungement?
3. Did the trial court’s denial of appellant’s expungement motion, allowing the continued maintenance and dissemination of the underlying case arrest records, constitute denial of his constitutional rights of privacy and protection of reputation?
4. Did the trial court abuse its discretion in denying appellant’s motion for expungement of arrest records?

The trial court’s memorandum opinion in this case reads, in pertinent part:

This action was before the Court on information filed with the Clerk of Courts of York County, Pennsylvania on March 17, 1989, charging the defendant with Theft of Services. On August 24, 1989, that Court entered an Order dismissing the charges in response to a Motion filed by defendant under Pa.R.Crim.P. 314. While this Rule provides for the dismissal of offenses when the provision of the Rules are met, it does not, as does Pa.R.Crim.P. 186 with reference to matters under the Accelerated Rehabilitative Disposition Section, provide for the expungement of the arrest record. The determination of expungement is therefore within the discretion of the Court. Having examined the record, the Court found no reason to expunge the record in this case, and therefore, refused the motion.

Trial Court opinion, at 1-2.

The law relative to the issue of expungement was discussed by this Court in Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976). In Malone, the court was faced with an issue of first impression in this jurisdiction: “whether an accused is entitled to a hearing to determine whether he has a right to expungement of his arrest record after the charges are dismissed at the preliminary hearing.” Id., 244 Pa.Superior Ct. at 64, 366 A.2d at 585. In recognizing an accused’s right to seek expungement of an arrest record, this Court stated that “such a right is an adjunct to due process.” Id. The court reasoned that the existence of an arrest record may subject an accused to difficulties both in his/her professional and personal life. Among other things, “[opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved.” Id., 244 Pa.Superior Ct. at 68, 366 A.2d at 588. It concluded that

[t]hus, it is not hyperbole to suggest that one who is falsely accused is subject to punishment despite his innocence. Punishment of the innocent is the clearest denial of life, liberty and property without due process of law. To remedy such a situation, an individual must be afforded a hearing to present his claim that he is entitled to an expungement—that is, because an innocent individual has a right to be free from unwarranted punishment, a court has the authority to remedy the denial of that right by ordering expungement of the arrest record [footnote omitted].

Id., 244 Pa.Superior Ct. at 69, 366 A.2d at 588. The court next addressed under what circumstances expungement may be ordered. In suggesting a balancing test (weighing society’s interest in maintaining arrest records against the inherent intrusion on the individual’s rights resulting from the retention of an arrest record), this Court held: “[g]iven the substantial interest of an accused in his good name and in freedom from the disability flowing from an arrest record, we believe that the Commonwealth must come forward with compelling evidence to justify retention of such information.” Id., 244 Pa.Superior Ct. at 70, 366 A.2d at 589. See also Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981) (accord); Commonwealth v. Blaiklock, 291 Pa.Super. 497, 436 A.2d 226 (1981) (discusses factors to be considered by the court in balancing the state’s interests against those of the individual).

Subsequent cases attempted to modify the rule in Malone. In Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979), this Court held that “expunction is proper only in cases where acquittal is consistent with a finding a [sic] innocence and is not a result of legal technicalities unrelated to questions of guilt or innocence.” Id., 263 Pa.Superior Ct. at 351, 397 A.2d at 1244. In Commonwealth v. Iacino, 270 Pa.Super. 350, 411 A.2d 754 (1979), this Court noted:

Recently, we have further held that expunction is proper only where acquittal is consistent with a finding of real innocence and is not the result of legal technicalities unrelated to questions of guilt or innocence. Commonwealth v. Rose, [263 Pa.Super. 349, 397 A.2d 1243 (1979) ]. Furthermore, in Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978), we held that once a prima facie case had been proven by the Commonwealth, the accused had the burden of affirmatively demonstrating nonculpability. Upon such a showing, the court should then weigh the Commonwealth’s interest in retaining the record against the accused’s interest in being free of whatever disabilities were caused by the criminal record.

Id. 270 Pa.Super. at 354-55, 411 A.2d at 757. We clarify that in Mueller, a case which is analogous to G.C.’s instant appeal, the burden was on the defendant to show affirmatively his nonculpability because the charges were dismissed as a result of Rule 1100 violation, not because the defendant was adjudicated not guilty. In Mueller, the magistrate found that the Commonwealth had presented a prima facie case and held the defendant for court. Due to the Commonwealth’s subsequent non-prosecution, the defendant’s petition to dismiss under Rule 1100 was granted. The defendant later filed a petition to expunge his criminal record. This Court reviewed the Malone decision, but held:

Our allocation of the burden upon the Commonwealth was based on the failure of the Commonwealth to make out a prima facie case at Malone’s preliminary hearing. Here, the Commonwealth met that burden, and the prosecution was terminated for reasons unrelated to guilt or innocence. In situations such as this, the applicable rule is that enunciated in Spock v. District of Columbia, 283 A.2d 14, 19 (D.C.App.1971). [Quotation omitted].
Accordingly, where the record shows that the Commonwealth made out a prima facie case of guilt of the part of an accused, he will then have the burden to affirmatively demonstrate non-culpability at a hearing, otherwise his petition to expunge will be denied. If, however, such a showing is made, the court must weigh the Commonwealth’s interest in retaining appellee’s arrest record against appellee’s interest in being free from whatever disability the record may create.
It must be borne in mind that the question before the court is not whether expungement is desirable in this case but whether it is constitutionally required; that is, whether it is necessary in order to prevent punishment of an innocent person.

Mueller, 258 Pa.Super. at 222-23, 392 A.2d at 765.

Finally, in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), the Pennsylvania Supreme Court implicitly . ejected the Mueller decision and its progeny, and held that “if the Commonwealth does not bear its burden of proof beyond a reasonable doubt ..., or admits that it is unable to bear its burden of proof ..., the Commonwealth must bear the burden of justifying why the arrest record should not be expunged.” Id. 494 Pa. at 331, 431 A.2d at 880. As this Court noted in Commonwealth v. Chacker, 320 Pa.Super. 402, 467 A.2d 386 (1983), “ Wexler created no exceptions to its holding.” Id. 320 Pa.Super. at 410, 467 A.2d at 390. In Chacker, this Court stated:

We read the unequivocal language in Wexler to foreclose explicitly a hearing court from continuing to shift the burden of persuasion to the petitioner seeking expungement merely because the Commonwealth made out a prima facie case of guilt on the part of the petitioner. [Footnote reads, in part: “Without continuing this discussion farther, suffice it to say that Mueller is no longer a viable decision on the burden of proof controversy, having been overruled sub silentio by Wexler.”] Thus, under Wexler, the burden to present compelling evidence against expungement is placed upon the Commonwealth if it has failed to establish the accused’s guilt beyond a reasonable doubt (e.g., before the court of common pleas,) or the Commonwealth “admits that it is unable to bear its burden of proof.” Id. Since the appellant, instantly, was not tried in the court of common pleas, we are left with the determination of whether the Commonwealth’s admission that “[t]he suppression order precluded [it] from proceeding to trial,” ... is equivalent to, as required by Wexler, an admission that it is unable to bear its burden of proof. We think it is, for nowhere in the Wexler opinion was a caveat created to the two specific circumstances that trigger the Commonwealth’s burden of proof obligation, e.g., where the petitioner has succeeded in terminating his prosecution by “legal technicalities unrelated to questions of guilt or innocence.” In other words, it is noteworthy that Wexler created no exceptions to its holding.

Id., 320 Pa.Superior Ct. at 409-10, 467 A.2d at 389-90. See also Commonwealth v. Richardson, 354 Pa.Super. 194, 511 A.2d 827 (1986) (accord); Commonwealth v. Miller, 325 Pa.Super. 526, 473 A.2d 193 (1984) (accord).

In the instant case, G.C. consistently asserts his innocence. More importantly, G.C. was never adjudicated guilty. The record contains evidence that restitution was made for all amounts allegedly owed to the U-Haul franchise. The record also indicates that the trial court dismissed the charges against G.C. having found that “the interests of justice [had] been served.”

Moreover, there is no evidence that the Commonwealth ever demonstrated the impropriety of expungement in this case. See Commonwealth v. Chacker, 320 Pa.Super. 402, 467 A.2d 386 (1983). Rather, no hearing was held on the motion to expunge, and the trial court decided the motion without the benefit of compelling reasons by the Commonwealth for its denial. Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981); Commonwealth v. Richardson, 354 Pa.Super. 194, 511 A.2d 827 (1986). The trial court refused G.C.’s motion to expunge because Pa.R.Crim.P. 314 does not provide for the expungement of arrest records. We read Rule 314 as an inclusive rule, not an exclusive one. The right to request expungement exists independent of it. See also Commonwealth v. Iacino, 270 Pa.Super. 350, 411 A.2d 754 (1979) (“the right of an accused to petition for expungement is an adjunct to due process and is not dependent upon express statutory authority.”).

For the foregoing reasons, we vacate the order of the trial court and remand for further proceedings consistent with this opinion.

Order vacated.

Case remanded.

Jurisdiction relinquished.

      . Hanover Self Storage is located in Hanover, Pennsylvania.

      . It appears that G.C. rented two U-Haul vans. The first van was rented for the round-trip from Hanover to Pittsburgh. The second van was used during a one-way trip to Pittsburgh.

      . G.C. stopped payment on three checks totalling $697.04 with an additional bank fee of $7.50, creating a total loss to U-Haul of $704.54.

      . G.C. also waived his arraignment and pleaded not guilty to the charges.

      . Pa.R.Crim.P. 314 provides:
      When a defendant is charged with an offense which is not alleged to have been committed by force or violence or threat thereof, the court may order the case to be dismissed upon motion and a showing that:
      (a) the public interest will not be adversely affected; and
      (b) the attorney for the Commonwealth consents to the dismissal; and
      (c) satisfaction has been made to the aggrieved person or there is an agreement that satisfaction will be made to the aggrieved person; and
      (d) there is an agreement as to who shall pay the costs.

      . The circumstances surrounding the restitution are not fully apparent in this case. However, we note that in addition to the $440.00 that G.C. paid to U-Haul, G.C. received a letter of apology from U-Haul’s customer service department which includes the paragraph, "I am enclosing a check which reflects a 50% adjustment off of the trucks [sic] base rental rate due to the difficulties you did have with the truck." See Letter, dated April 7, 1989, at R. 14a. The letter was attached to G.C.’s brief but was not made an official part of the record.

      . The Commonwealth has chosen not to file a brief in this matter. Instead, it relies on the trial court’s opinion which was entered pursuant to Pa.R.A.P. 1925(a).

      . It is still the law that once the Commonwealth enunciates its reasons to justify the retention of an arrest record, the hearing court “must weigh the individual’s right to be free from the harm attendant in maintenance of the arrest record against the reasons given to support denial of the petition____” Commonwealth v. Richardson, 354 Pa.Super. 194, 197, 511 A.2d 827, 828 (1986).

      . We do not proceed to discuss the merits of G.C.’s constitutional issues as we were able to resolve this appeal on non-constitutional grounds. Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981); Mt. Lebanon v. County Bd. of Elections, 470 Pa. 317, 322, 368 A.2d 648, 650 (1977).


author: CERCONE, Judge:

text:
    581 A.2d 226
    COMMONWEALTH of Pennsylvania v. Aaron L. CATANCH, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 2, 1990.
    Filed Oct. 18, 1990.

      Kalvin Kahn, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
    Before OLSZEWSKI, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from a judgment of sentence following a nolo contendere plea. For the reasons that follow, we affirm.

The facts underlying this appeal, as determined by the trial court, are as follows:

[Appellant] entered the enclosed MAC machine area of Mellon Bank, located at 5500 Germantown Avenue, at 1:00 on the afternoon of December 15, 1988. He then pointed a loaded revolver at Philip Weiser, and demanded money. While the [appellant] was accosting Weiser, an elderly gentleman, Mr. Tucker, came into the area, and the [appellant] similarly confronted him. Dr. Weiser grabbed for the gun as Mr. Tucker joined him in an attempt to subdue the [appellant]. During the ensuing struggle, a shot was fired while the [appellant] was still holding the gun, however, no one was struck by the bullet. The [appellant] was eventually subdued, arrested and charged . ,\ (citations to the record omitted)

On May 8, 1989, appellant, Aaron L. Catanch pleaded nolo contendere to two counts of robbery, and one count of carrying a firearm in a public street. He was sentenced to two consecutive periods of seven to twenty years incarceration for each of the robbery counts, and a consecutive period of one to five years on the firearms violation for a total of fifteen to forty years incarceration. A petition to reconsider sentence was orally argued and denied. This timely appeal followed.

Appellant raises two issues for our review. First, he claims that the trial court erred: (a) in giving the second robbery a prior record score of three instead of zero; (b) in failing to file a contemporaneous written statement since appellant was sentenced outside the sentencing guidelines; (c) in considering a 1969 conviction for “aggravated robbery”; (d) in considering the 1969 conviction an F-l or F-2 without sufficient evidence; (e) in sentencing for violation of the Uniform Firearms Act despite a sentence under § 9712 of the Mandatory Sentencing Act. Second, he contends that trial counsel was ineffective for failing to preserve for appeal issues (a) and (b).

Initially, we note that a plea of nolo contendere is treated the same as a guilty plea in terms of its effect upon a particular case. Commonwealth v. Jackson, 376 Pa.Super. 433, 546 A.2d 105 (1988). A plea of nolo contendere acts as a waiver of all non-jurisdictional defects and defenses and only allows challenges to the legality of sentence, validity of the plea, and subject-matter jurisdiction of the court. Commonwealth v. Thomas, 351 Pa.Super. 423, 506 A.2d 420 (1986). A legality issue is essentially a claim that the trial court did not have jurisdiction to impose the sentence that it handed down. Commonwealth v. Cannon, 387 Pa.Super. 12, 563 A.2d 918 (1989). A trial court ordinarily has jurisdiction to impose any sentence which is within the range of punishments which the legislature has authorized for the defendant’s crimes. Commonwealth v. Smicklo, 375 Pa.Super. 448, 453, 544 A.2d 1005, 1008 (1988) (en banc) quoting Commonwealth v. Smith, 375 Pa.Super. 419, 426, 544 A.2d 991, 994 (1988) (en banc). Challenges to the application of the sentencing guidelines do not implicate legality of sentence. Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc).

Of the issues raised by appellant, only appellant’s claim that the trial court erred in sentencing for a violation of the Uniform Firearms Act despite a sentence under § 9712 of the Mandatory Sentencing Act specifically questions the legality of sentence. Appellant’s other claims concern the manner in which the sentencing court applied the sentencing guidelines. As stated above, challenges to the application of the sentencing guidelines do not implicate legality of sentence. Commonwealth v. Krum, id. Thus, appellant’s claims with regard to the discretionary aspects of sentencing will be discussed together.

Appellant generally contends that the sentence imposed on his conviction for two robberies was an abuse of discretion because the sentencing court exceeded the applicable guideline range and failed to state its reasons for imposing such a sentence. Appellant challenges the discretionary aspects of his sentence and his brief correctly includes a separate statement, as required by the Pennsylvania Rules of Appellate Procedure, by which appellant attempts to demonstrate that a substantial question exists regarding the appropriateness of the sentence imposed. See 42 Pa.C.S.A. § 9781(b); Pa. R.A.P., Rule 2119(f), 42 Pa. C.S.A.; Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The determination of whether a particular issue constitutes a substantial question must be evaluated on a case by case basis. Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987). “However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Id. We find that appellant’s averments advance at least a colorable argument that the fundamental norms underlying the sentencing process have been compromised in his case. We may therefore consider the merits of appellant’s claim.

Sentencing is a matter vested in the sound discretion of the trial court and the lower court’s judgment of sentence will not be disturbed by an appellate court absent abuse of discretion. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Meo, 362 Pa.Super. 328, 524 A.2d 902 (1987), allocatur denied 516 Pa. 632, 533 A.2d 91 (1988). To constitute an abuse of discretion, a sentence must either exceed the statutory limits or be patently excessive. Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985); Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983). When reviewing sentencing matters, we must accord the sentencing court great weight as it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. Commonwealth v. Fries, 362 Pa.Super. 163, 167, 523 A.2d 1134, 1135 (1987), allocatur denied 515 Pa. 619, 531 A.2d 427 (1987).

Appellant argues, inter alia, that the lower court failed to provide an appropriate contemporaneous written statement explaining the reasons for sentencing outside the Guidelines as required by 204 Pa.Code § 303.1(h) (1989). See 42 Pa. C.S.A. § 9721 (reproducing the provisions of the Sentencing Guidelines). The requirement of a contemporaneous written statement explaining any deviation from the Sentencing Guidelines is satisfied when the sentencing judge states the reasons for his actions on the record and in the defendant’s presence. Commonwealth v. Smith, 369 Pa.Super. 1, 6, 534 A.2d 836, 838 (1987), citing Commonwealth v. Chesson, 353 Pa.Super. 255, 509 A.2d 875 (1986) and Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). The record of the sentencing hearing shows that the lower court provided such an explanation to appellant on the record. We therefore conclude that appellant is not entitled to relief on this basis.

We note that the Mandatory Minimum Sentencing Act, 42 Pa. C.S.A. § 9712 was applied in the instant case. This Act specifically overrides the sentencing guidelines. Section 9712 states that any person who is convicted of robbery as defined in 18 Pa. C.S.A. § 3701(a)(l)(iii) shall be sentenced to a minimum term of imprisonment of five years if a firearm was visibly possessed during the commission of the offense “notwithstanding any other provision of [Title 42] or other statute to the contrary.” § 9712(a), supra. Subsection (c) of § 9712 further provides:

(c) Authority of court in sentencing.—There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory-sentences provided in this section.

Appellant was convicted of two robberies under § 3701(a)(l)(iii), supra, while in visible possession of a firearm. Thus, at a minimum, the sentencing court was required to impose two, five year terms of incarceration. When the mandatory minimum sentence applies, the individual circumstances of the particular case may be considered by the lower court, but only in determining whether sanctions in excess of the mandatory minimum sentence should be imposed. Commonwealth v. Howard, 373 Pa.Super. 246, 250, 540 A.2d 960, 962 (1988). Clearly, the lower court was free to impose a more lengthy term of imprisonment upon consideration of the individual circumstances of the case before it.

In the case subjudice, the trial court was statutorily authorized to sentence appellant as it did and the sentence cannot, on this ground, be considered inordinate. Our supreme court has ruled that where pre-sentence reports exist, the presumption will stand that the sentencing judge was both aware of and appropriately weighed all relevant information regarding a defendant’s character along with mitigating statutory factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). In the instant case, the record clearly indicates that the lower court had the benefit of a pre-sentence report. Further, the sentencing judge conducted a lengthy verbal exchange with trial counsel at the sentencing hearing during which the pre-sentence report and the sentencing rationale employed were thoroughly discussed. The requirement that the lower court explain the rationale for the sentence imposed as set forth in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and clarified by Devers, supra, has been more than satisfied. We find that appellant has not received an illegal punishment and that the sentencing court provided an adequate explanation for the sentence imposed.

Finally, appellant alleges that the sentencing for a violation of the Uniform Firearms Act was illegal in that the possession of the same firearm was used to enhance punishment under § 9712 of the Mandatory Sentencing Act, supra. Appellant cites no authority for this proposition, nor has our research uncovered any such authority. To the contrary, our review of the existing law leads us to conclude that there is no merit to appellant’s argument.

In Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985) affirmed sub nom, McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), our supreme court explained that the visible possession of a firearm is a sentencing factor to be considered only after conviction of specified offenses. Thus, our supreme court has made clear that the application of the Mandatory Sentencing Act is independent of the offenses for which a defendant is convicted. Appellant’s argument that he cannot be sentenced for a violation of the Uniform Firearms Act because the possession of the same firearm was used to enhance punishment under § 9712 of the Mandatory Sentencing Act, supra is without any foundation in the law.

Judgment of sentence affirmed.

      . 18 Pa. C.S.A. § 3701(a)(l)(ii).

      . Id. § 6108.

      . The Commonwealth incorrectly contends that appellant's claims with regard to the discretionary aspects of sentencing are waived as a result of his nolo contendere plea. Legality of sentence in this context refers both to the discretionary aspects of sentencing and the legality of sentence. See Commonwealth v. Becker, 383 Pa.Super. 553, 557 n. 1, 557 A.2d 390, 392 n. 1 (1989) (wherein we held that a defendant who enters a guilty plea which does not involve a plea bargain designating the sentence to be imposed, cannot be said to have granted the sentencing court carte blanche to impose a discriminatory, vindictive or excessive sentence so long as the legal limits are not exceeded).

      . Since appellant does not question the validity of the plea or the subject-matter jurisdiction of the court, we need not discuss these issues.

      . Appellant does not allege that his trial counsel caused him to enter into an unknowing and involuntary plea. The extensive plea colloquy clearly establishes that the appellant entered his nolo contendere plea knowingly and voluntarily. The colloquy further fully apprised appellant of the permissible range of sentences and the applicability of the mandatory minimum before he entered his plea. Thus, we need not discuss appellant’s claim that his trial counsel was ineffective for failing to preserve these issues for appeal. See Commonwealth v. Fultz, 316 Pa.Super. 260, 462 A.2d 1340 (1983) (wherein we held that an assertion of ineffective assistance of counsel following the entry of a guilty plea will afford a basis for relief only if there can be demonstrated some causal nexus between the alleged ineffectiveness and entry of what amounts to an unknowing and involuntary plea).

      . Since appellant’s underlying claim is of no merit, we need not discuss appellant’s claim that counsel was ineffective for failing to preserve this issue. See Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173 (1985); Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989) (counsel will not be deemed ineffective for failing to assert a baseless claim).