author: DEL SOLE, Judge.

text:
    642 A.2d 1136
    William CONNOR, Appellant, v. Elda CONNOR, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1994.
    Filed June 13, 1994.

      J. Douglas Farrell, Greensburg, for appellant.
    Sandra E. Davis, Greensburg, for appellee.
    Before DEL SOLE, FORD ELLIOTT and MONTGOMERY, JJ.
   DEL SOLE, Judge.

William Connor appeals from an Order of the Court of Common Pleas of Westmoreland County, reducing the amount of child support to be paid by Elda Connor from $478.00 to $350.00 per month. We vacate and remand.

The parties to this action were married August 13, 1977 and they had two children. They have been separated since September 1991 and a Complaint in Divorce was filed in October 1991. Appellant was awarded primary custody of the parties’ two children and he filed a support action against appellee on March 25, 1993. Appellee, a school teacher, has partial custody of the children during the school year on alternate weekends, and during'the summers she has custody of the children each week from Monday to Friday. The parties also alternate holidays with the children and both have two nonconsecutive, uninterrupted vacation weeks with the children. At the child support hearing, the parties stipulated that appellant’s monthly net income of $1,936.00 and appellee’s monthly net income of $1,983.00 are substantially the same. They also stipulated that the child support due based upon that income under the Uniform Support Guidelines, 42 Pa. R.Civ.P. 1910.16-5, would be $478.00 per month, and that appellant has the children 73% of the time and appellee has them the remaining 27% of the time. Appellee sought to reduce the Order of child support. The trial court granted the request and reduced appellee’s child support obligation from $478.00 to $350.00 per month. Appellant filed this timely appeal.

The issues are whether the trial court abused its discretion by reducing the appellee’s child support obligation, and whether the trial court misapplied the support guidelines in granting the reduction in child support.

Initially, we note that “the amount of a support order is largely within the discretion of the trial court, whose judgment should not be disturbed on appeal absent a clear abuse of discretion.” Griffin v. Griffin, 384 Pa.Super, 188, 558 A.2d 75 (1989). An abuse of discretion is not simply an error of judgment, but rather a misapplication of the law or an unreasonable exercise of judgment. Id.

In Dalton v. Dalton, 409 Pa.Super. 258, 597 A.2d 1192, 1194 (1991) (plurality opinion) we stated:

The Uniform Support Guidelines, codified at Pa.R.Civ.P. Rule 1910.16, et seq., 42 Pa.C.S.A., were promulgated to provide minor children the same proportion of parental income that they would have received if the parents lived together. Pa.R.Civ.P. Rule 1910.16-1, Explanatory Comment A, 42 Pa.C.S.A. The appropriate amount is determined by ascertaining the reasonable needs of the children. The guidelines place emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses, and other factors, such as the parties’ assets, as warrant special attention. Id., Explanatory Comment B. Therefore, the support guidelines create a rebuttable presumption that the amount of support determined from the guidelines is the correct amount of support to be awarded. Id., subsection (b).

Appellant argues that had the appellee’s partial custodial time continued as every other weekend and alternate holidays with two non-consecutive, uninterrupted weeks vacation with the children on a year around basis, this would constitute reasonable contact by the non-custodial parent as contemplated by the guidelines and would amount to approximately seventy-seven days or 21% of the time. But, since appellee has custody five days a week during the summer, her noncustodial time is slightly increased to ninety-eight and one-half days or 27%. Appellant contends that appellees non-custodial time is about 6% more than the custodial time normally allotted to a non-custodial parent, and this is not such a substantial increase in custodial time which would justify a 27% deviation from the support guidelines from $478.00 to $350.00 per month.

Appellee, on the other hand, argues that even though she has custody only 27% of the time, she is entitled to a reduction to her child support obligation. The twenty-seven percent of the year that the children spend with the appellee amount to ninety-eight and one-half days, and the remaining two hundred sixty-six and one-half days are spent with appellant. Appellee believes that her time with the children requires that she spend more money on activities for the children than appellant spends because she has the children during the summer and they are with her all day long; whereas, when appellant has the children during the school year, he does not incur substantial expenses for additional activities because the children are in school most of the time. Appellee also claims that during the school year when the children are visiting her for the weekend, she transports them to their extra-curricular activities in the North Hills where appellant resides which creates an unusual burden for her. Appellee also incurs a $60.00 a month telephone bill during appellant’s custodial time to maintain contact with the children.

“If the amount of support deviates from the amount of support determined by the guidelines, the trier of fact shall specify, in writing, the guideline amount of support, and the reasons for, and findings of fact justifying, the amount of the deviation.” Pa.R.Civ.P. 1910.16-4(a). The trier of fact must consider the factors set forth in Rule 1910.16-4(b) in deciding whether to deviate from the amount of support determined by the guidelines. Under Pa.R.Civ.P. Rule 1910.16-5(m), “a noncustodial parent’s support obligation should be reduced only if that parent spends an unusual amount of time with the children.” The support guidelines contemplate that the noncustodial parent has regular contact, including vacation time, with her children, and that she makes direct expenditures on behalf of the children. Id. “Trial courts should depart above the guidelines only when unique needs of the child are involved. Further, departures below the guidelines are permitted only when the obligor can establish unique financial needs.” Young v. Muthersbaugh, 415 Pa.Super. 591, 609 A.2d 1381, 1384 (1992).

The only explanation provided by the trial court for its deviation from the guideline support amount is that

... the defendant-mother was the primary custodian of the children during the summer months and was entitled to some consideration since the plaintiff-father paid her no support during that time. The parties had stipulated that the physical custody of the children was shared with father at 73% and mother at 27% and the Order was reduced accordingly.

Trial ct. op. 10-20-93 at 1-2.

In Dalton, swpm, the father argued that the trial court abused its discretion in failing to deviate from the child support guidelines since he exercises custody of the minor children for six out of fourteen days which amounts to approximately 42.8% of the time. In particular, father asserted that the custody order required him to spend an unusual amount of time with the children which caused him to spend more money for them, and this should serve to reduce his support obligation under Pa.R.Civ.P. Rule 1910.16-5(1 ). This court sustained the trial court’s conclusion that although the custodial order, permitting father physical custody every Wednesday night, every other weekend beginning on Thursday evening until Sunday evening, and on alternate vacation and holiday periods, was not insubstantial, it was not such an unusual amount of time warranting a reduction in child support.

The holding of Dalton, supra is not precedential; however, the reasoning is sound and applicable in our case. The appellee spends even less time with her children than the father in Dalton spent with his children, nevertheless, this court agreed with the trial court’s determination that Mr. Dalton’s custody was not unusual. The trial court in the case before us did not make a determination that appellee spends an unusual amount of time with the children but merely noted that appellant’s physical custody of the children is 73% and appellee’s is 27%, and that the order would be reduced accordingly. We are unconvinced by appellee’s argument that the amount of time that she has physical custody of the children is unusual or that she spends more money on them for food, transportation and extra-curricular activities. Expenses for food and shelter have already been factored into the support guidelines. The support guidelines also contemplate that the non-custodial parent has regular contact, including vacation time, with his or her children, and that direct expenditures on behalf of the children will be made. Pa.R.Civ.P. Rule 1910.16— 5(m).

The non-custodial parent’s support obligation should not be reduced absent a determination that the parent spends an unusual amount of time with the children or where unique financial needs can be demonstrated. The 1993 amendment to the support guidelines require that any amount of support deviation from the amount determined by the guidelines be specified in writing, and the court must indicate the guideline amount of support and the reasons or findings of fact justifying the amount of the deviation. The trial court’s meager explanation does not justify a 27% reduction of the appellee’s child support obligation. The only discernible reason for the arbitrary 27% reduction from the guideline payment amount is that the appellee has physical custody of the children 27% of the time.

We conclude that, as a matter of law, the amount of time that appellee spent with the children is not unusual and does not warrant a reduction in the support amount under the guidelines from $478.00 to $350.00 per month. Further, a parent’s support obligation as determined by the guidelines will not be reduced by allocating the time that each parent spends with the children as this is a misapplication of the guidelines. Therefore, we remand to the trial court for an appropriate Order of support consistent with this opinion.

Order vacated and case remanded for entry of support order. Jurisdiction relinquished.

FORD ELLIOTT, J., dissents.

      . Under the former child support guidelines at Pa.R.Civ.P. Rule 1910.16-5(1), 42 Pa.C.S.A., the trial court was required to reduce the support payments of the non-custodial parent when that parent spends an unusual amount of time with the children. This section is codified at Pa.R.Civ.P. Rule 1910.16-5(m) under the 1993 amendment to the child support guidelines.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    643 A.2d 102
    Jane RUSSELL v. ALBERT EINSTEIN MEDICAL CENTER, NORTHERN DIVISION. Jane RUSSELL, Administratrix of the Estate of Joshua Alexander Russell, Deceased and Jane Russell, in Her Own Right v. ALBERT EINSTEIN MEDICAL CENTER, NORTHERN DIVISION, Soleiman Soli, M.D., Karen McCready, M.D., Jeff Levine, M.D. and J.M. Payer, M.D. Appeal of Soleiman SOLI, M.D. Jane RUSSELL, Administratrix of the Estate of Joshua Alexander Russell, Deceased and Jane Russell, in Her Own Right v. ALBERT EINSTEIN MEDICAL CENTER, NORTHERN DIVISION, Soleiman M. Soli, M.D., Karen McCready, M.D., Jeff Levine, M.D., J.M. Payer, M.D. Appeal of ALBERT EINSTEIN MEDICAL CENTER, Jeffrey Levine, M.D., Jean Payer, M.D., and Karen McCready.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1994.
    Filed April 22, 1994.
    Reargument Denied June 24, 1994.

      Howard M. Cyr, III and Dean F. Murtagh, Philadelphia, for Soli, appellant in No. 2905.
    Charles A. Fitzpatrick, III, Philadelphia, for appellants in No. 2919.
    Marc G. Brecher, Philadelphia, for Russell, appellee.

      Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

This appeal is taken from the Judgment of August 3, 1993, entered following denial of appellants’ motion for post-trial relief in the nature of a motion for judgment notwithstanding the verdict and/or a new trial. The underlying medical malpractice action was instituted by appellees, Jane Russell, administratrix of the estate of Joshua Russell, and Jane Russell in her own right, against appellants, Albert Einstein Medical Center, Northern Division (“AEMC”), Soleiman Soli, M.D., and Jeffrey Levine, M.D. On October 5, 1986, at approximately 3:00 a.m., Jane Russell presented herself at AEMC in the early stages of labor. Ms. Russell was placed under the care of Dr. Levine, who, at the time, was a chief resident in obstetrics and gynecology at AEMC. Ms. Russell was taken to the labor room, and at 9:30 a.m. her amniotic membranes were ruptured as a means to accelerate labor and to facilitate placement of a fetal scalp monitor to measure fetal heart rate. At approximately 4:00 p.m., it was noted that Ms. Russell had a fever, as a result of suspected choriamnionitis, an infection of the membranes surrounding the fetus. To combat the suspected infection, a broad spectrum antibiotic was administered. Subsequently, Ms. Russell was moved to the delivery room, and at approximately 4:50 p.m. Dr. Levine attempted to effect a vaginal delivery by means of vacuum extraction and forceps. Sometime after 4:00 p.m., Dr. Soli, the attending physician on call, was telephoned at his home and apprised of the situation. Exactly when Dr. Soli was contacted and when he arrived at the hospital were disputed issues at trial. Dr. Soli and Dr. Levine consulted and decided to allow Ms. Russell’s labor to proceed for a short time longer. Dr. Soli examined Ms. Russell at approximately 6:35 p.m., and then decided to perform a caesarean section in order to deliver the baby. The operation commenced at 7:16 p.m., and Joshua Russell was delivered at 7:33 p.m. Joshua Russell died at 4:04 p.m. on October 6, 1986, due to a streptococcal infection.

Trial was held from December 2, 1992 to December 9, 1992 before the Honorable Nelson A. Diaz and a jury in the Court of Common Pleas of Philadelphia County. Plaintiffs’ case was based on the theory Joshua Russell died of a streptococcal infection due to defendants’ failure to perform a timely caesarean section. On December 9, 1992, the jury returned a verdict against both defendants, apportioning negligence in the amount of 75 per cent to Dr. Levine and 25 per cent to Dr. Soli. The jury awarded damages in the amount of $605,000 for Joshua Russell’s future lost earnings and $100,000 for pain and suffering.

On appeal, Dr. Levine raises various claims, all of which we find without merit. Inasmuch as the trial court ably addressed these issues, we would affirm the judgment against him on the basis of the trial court Opinion, however, as we are constrained to grant a new trial as to Dr. Soli, see infra, Dr. Levine also must stand retrial.

In his appeal, Dr. Soli argues the trial court erred in allowing appellee to read into evidence the deposition testimony of a non-party witness on the disputed issue of Dr. Soli’s arrival at the hospital and in the delivery room, where the non-party witness, a nurse, was not proven to be unavailable. At trial, appellee read into evidence, over objections by Dr. Soli, excerpts from the deposition of nurse Kimberly Arrow-smith, wherein she stated that Dr. Soli first entered Ms. Russell’s room at 6:35 on October 5, 1986. Nurse Arrow-smith’s statement directly contradicted Dr. Soli’s own testimony that he had gone to see Ms. Russell as soon as he arrived at the hospital, approximately one-half hour earlier than the time noted by Nurse Arrowsmith.

The trial court allowed the deposition testimony to be admitted under Pa.R.C.P. 4020(a)(5), which states: “A deposition upon oral examination of a medical witness, other than a party, may be used at trial for any purpose whether or not the witness is available to testify.” The trial court later stated:

The underlying policy reason behind the rule is to minimize the time medical personnel must spend in a courtroom. The policy reasons which justify wanting to minimize the time physicians spend in a courtroom apply equally to nurses, as well as other medical personnel. The defendants’ assertion to the contrary is without merit and lacks any foundation in logic. Clearly, had the legislature intended to limit Pa.R.Civ.P. 4020(a)(5) to apply only to physicians, the more broad term “medical witness” would not have been used.

(Slip Op., Diaz, J., 8/3/93, pp. 9-10.) We disagree with the trial court’s holding and analysis of this issue.

Initially, we note the Pennsylvania Constitution vested in the Supreme Court “the power to prescribe general rules governing practice, procedure, and the conduct of all courts____” Pa. Const. Art. V, § 10(c). This constitutional provision is now implemented in the Judicial Code, 42 Pa.C.S. § 1722. Thus, the Rules of Civil Procedure are actually adopted and promulgated by the Supreme Court, rather than by the legislature.

In interpreting the ambiguity of Rule 4020’s term “medical witness,” we also note the following directive from the section of the Rules, Rules of Construction:

(c) When the words of a rule are not explicit, the intention of the Supreme Court may be ascertained by considering, among other matters (1) the occasion and necessity for the rule; (2) the circumstances under which it was promulgated; (3) the mischief to be remedied; (4) the object to be attained; (5) the prior practice, if any, including other rules and Acts of Assembly upon the same or similar subjects; (6) the consequences of a particular interpretation; (7) the contemporaneous history of the rule; and (8) the practice followed under the rule.

Pa.R.C.P. 127(c).

The Explanatory Note to Rule 4020 sets forth the rationale for the allowance of otherwise hearsay testimony of a non-party witness, irrespective of the witness’ availability at trial. The Note states:

The rising costs of obtaining the testimony at trial of medical experts and the inconvenience which may be caused to the medical witness and to his patients, have suggested relaxation of the requirement that a medical witness who is available to testify must be produced at trial. The witness may have to appear a total of three times, first, at a deposition, second, at a compulsory arbitration hearing and third, at trial in the Common Pleas Court.
Videotape Rule 4017.1(g) recognizes this hardship by' permitting use at trial of the videotape deposition of a medical witness even if he is available to appear. Rule 1809(b) similarly provides that on a de novo appeal to the Common Pleas Court from a Health Care Arbitration Panel the deposition of any medical witness offered during arbitration shall be admissable whether or not the witness is available at trial on the appeal.
It is obvious that Rule 4020 is different from Rules 4017.1 and 1809(b). This Rule covers every kind of action at law or in equity. The types of experts and the nature of their testimony will be almost unlimited. These experts will have no “personal” problems like the physician, whose problems have been the justification for special treatment.

Id. (emphasis added).

Clearly, the language of the Explanatory Note to Rule 4020(a)(5) indicates it was designed primarily, if not exclusively, for physicians. Looking to the various factors enunciated in Rule 127(c), we find a reading of “medical witness” to include other than physicians is unjustified, especially given consideration of factor (8), “the practice followed under the rule.” Our review of the case law involving the application of Rule 4020(a)(5) discloses no instance in which the Rule was applied to anyone but a physician, and neither appellee nor the trial court has provided a case citation in support of their interpretation of the Rule.

Were this Court to extend Rule 4020(a)(5) to non-physician “medical witnesses,” beginning with nurses, we can envision its utilization in myriad situations not intended by the Supreme Court. In the present case, for example, the Rule was invoked to allow for Nurse Arrowsmith’s testimony regarding when Dr. Soli arrived to examine Ms. Russell, testimony not “medical” in nature. Under the trial court’s interpretation of the Rule, any hospital support personnel with this knowledge would be viewed as “medical witnesses” and could have provided the same testimony, whether they were nurses, social workers or even custodial staff in the area. We find these persons are not “medical witnesses” within the ambit of Rule 4020(a)(5), and if such deposition testimony is to be admitted at trial, its basis must be other than Rule 4020(a)(5).

In support of his claim that the admission of Nurse Arrowsmith’s deposition testimony prejudiced him, Dr. Soli relies upon Reichman v. Wallach, 306 Pa.Super. 177, 452 A.2d 501 (1982). In Reichman, plaintiffs medical malpractice action was based upon the alleged failure of physicians to treat promptly internal bleeding which followed the performance of a hysterectomy. In support of her claim, plaintiff was permitted to introduce a hearsay statement by a non-party witness in the operating room to the effect that defendant/physician ignored at least five telephone calls to his office requesting medical assistance for plaintiff. In awarding a new trial, the Reichman Court stated:

A majority of the court en banc which heard the post verdict motions concluded that the admission of the hearsay statement had been error but that the error was harmless. We are unable to agree with the assessment of harmlessness. Mrs. Reichman’s evidence of negligence by Dr. Wallach was far from overwhelming. Indeed, the evidence of causation between the operative and post operative care which she received from Dr. Wallach and the subsequent finding of a seemingly unrelated disease was relatively weak. The improper hearsay statement attributed to Dr. Troncelliti injected into the case an unsupported opinion that Mrs. Reichman was in critical condition following performance of a hysterectomy. Moreover, it implied, without evidence, that Dr. Wallach had willfully ignored the needs of a critically ill patient. There are not many aspects of medical misfeasance that will more quickly influence, perhaps prejudice, lay jurors than for a physician to ignore a patient. To be told that a physician has .abandoned a critically ill patient and left her to her chances will persuade the most hardened juror against such an uncaring physician. Here, the only evidence that Dr. Wallach was uncaring and had ignored calls for help came into evidence by an improperly admitted hearsay statement. Thus it was not merely cumulative. Mrs. Reichman’s evidence, as we have observed, was not overwhelming. The introduction of this inadmissible and highly prejudicial hearsay statement under these circumstances was far from harmless. In view of the close and vigorously contested nature of the liability issues, the balance may well have been tipped in favor of Mrs. Reichman by this improper evidence.

Id. at 195-96, 452 A.2d at 511 (footnote omitted).

We find Reichman similar to the present case in several respects. Plaintiff and defendants both presented expert medical testimony asserting the presence and absence of defendants’ liability, respectively, and plaintiffs evidence was not overwhelming. Further, the only testimony concerning Dr. Soli’s alleged failure to see Ms. Russell as soon as he arrived at the hospital was that of Nurse Arrowsmith. Moreover, a great deal of plaintiffs expert opinion that Dr. Soli was negligent was based on the assumption that Dr. Soli arrived at the hospital at 6:08 p.m., but did not see Ms. Russell until 6:35 p.m.

For the foregoing reasons, we reverse the judgment in favor of appellee and remand the case for a new trial against AEMC and Drs. Soli and Levine. Pursuant to settled case law, a reversal as to one party requiring a retrial requires a remand and retrial as to all parties, whether or not they appealed and whether there were grounds for reversal as against one and not the others. See Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 507 A.2d 1 (1986) (“The grant of a new trial ordinarily ‘means a new trial generally; it restores a case to the status it had before trial took place and is fully open to be tried de novo as to all parties and all issues.’ Mains v. Moore, 189 Pa.Superior Ct. 430, 434, 150 A.2d 549, 551 (1959).”) Also see McKee by McKee v. Evans, 380 Pa.Super. 120, 126 n. 1, 551 A.2d 260, 263 n. 1 (1988).

Judgment reversed; case remanded for new trial.

Jurisdiction relinquished.

      . The original complaint included as defendants Jean Prayer, M.D., and Caren McCrady, M.D. At the outset of the trial, it was determined and agreed to by all the parties that Drs. Prayer and McCrady were not liable and a Stipulation to Dismiss was filed of record, signed by counsel for the plaintiff, Albert Einstein Medical Center (also representing Drs. Levine, Prayer and McCrady) and Dr. Soli. This stipulation was with prejudice, signed by Judge Diaz and filed in the prothonotary’s office on December 4, 1992. Dr. Prayer and Dr. McCrady did not participate in the trial, post-trial motions or appeal of this case. None of the remaining parties raised any issue on appeal concerning their dismissal. Drs. Prayer and McCrady, therefore, are excluded from any further action in this matter on remand. See Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 507 A.2d 1 (1986).

      . In light of our disposition of this case, we need not address Dr. Soli's remaining claims.


author: HOFFMAN, Judge.

text:
    643 A.2d 106
    In the Interest of Aquil BOND. Appeal of COMMONWEALTH of Pennsylvania, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1994.
    Filed May 26, 1994.

      Michael Erlich, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Jeffrey P. Shender, Asst. Public Defender, Philadelphia, for appellee.
    Before CIRILLO, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge.

This appeal is from the June 11, 1993 order, granting appellee, Aquil Bond’s, motion to suppress physical evidence. The Commonwealth raises one issue for our review:

Did the lower court err by suppressing contraband seized pursuant to a search warrant from 5653 Catherine Street, where a reliable informant, who had recently provided information resulting in six arrests and the seizure of narcotics from a neighboring drug sales location, notified police that she had personally heard the drug supplier for the sales location, who lived with his aunt at 5653 Catherine Street, say that he had transferred his stock of drugs from the sales location to his aunt’s house?

Commonwealth’s Brief at 4. For the reasons that follow, we reverse.

On March 22, 1993, Detective Meissler received information from a confidential informant regarding a drug trafficking enterprise on the 5600 block of Catherine Street in West Philadelphia. The informant stated that a black male named Benjamin Bell was allowing persons to sell crack cocaine from a house at 5622 Catherine Street. She further stated that a bench warrant was out on Bell and he could be found at this address. Detective Meissler was independently aware of this information at the. time of this conversation.

In response to the informant’s report, Detective Carol Robinson, went to 5622 Catherine Street and made a controlled buy of crack cocaine at that location. Following this transaction, police officers arrested six persons on the property for narcotics violations, including Benjamin Bell. Police then searched the house and found 350 vials of crack cocaine and two handguns.

On March 29,1993, the same confidential informant contacted Detective Meissler and provided detailed follow-up information on the drug-trafficking enterprise. The informant disclosed that the drugs sold from 5622 Catherine Street were supplied by someone called “Ricky” who lived with his aunt and uncle at 5653 Catherine Street. She gave a description of the revised drug trafficking scheme and disclosed that she had heard “Ricky” say that he transferred his supply to 5653 Catherine Street.

Based on the above stated information, Detective Meissler swore out an affidavit of probable cause before Bail Commissioner Polikoff. After reviewing the affidavit, Commissioner Polikoff agreed that probable cause existed to search both 5622 Catherine Street and 5653 Catherine Street for contraband, and accordingly, issued warrants for both properties. On that same day police officers executed the warrant on 5622 Catherine Street and seized 84 vials of crack cocaine, seventeen dollars in cash and a .380 semi-automatic pistol. Two men were arrested for narcotic offenses.

Detective Meissler executed the warrant for 5653 Catherine Street. There police encountered both Rondal Pierce and appellee, a juvenile. After administering Miranda warnings, the police asked Pierce if he knew why the police were there. Pierce replied, “my drugs,” and showed them a jacket with 45 vials of cocaine. Appellee then led police to a closet on the second floor where the officers found an additional 102 vials of cocaine, a clear plastic baggie of cocaine, paraphernalia for cutting and packaging narcotics, a .357 Ruger automatic handgun and forty rounds of ammunition.

In addition to filing criminal charges against Pierce, the Commonwealth charged appellee with several delinquent acts. Appellee then filed a motion to suppress all of the evidence against him on the grounds that the police lacked probable cause to search the premises of 5653 Catherine Street. On June 11, 1993, the Honorable Joseph P. McCabe, Jr., granted appellee’s motion. This timely appeal followed.

The Commonwealth argues that the trial court erred by suppressing contraband seized pursuant to a search warrant for 5653 Catherine Street, where a reliable informant notified the police that she had recently heard the drug supplier say that he had transferred his stock to the above location. We agree.

Once a warrant has been issued it is our duty to decide whether the magistrate had a substantial basis for concluding that probable cause existed for issuance of a search warrant. Commonwealth v. Eicher, 413 Pa.Super. 235, 605 A.2d 337 (1992), appeal denied, 533 Pa. 598, 617 A.2d 1272 (1992). When determining whether probable cause exists for the issuance of a search warrant, courts in this Commonwealth have adopted the totality of the circumstances test as enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); See, e.g., Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985); Commonwealth v. Singleton, 412 Pa.Super. 550, 603 A.2d 1072 (1992). Under this analysis, “[a] magistrate is not required to find a prima facia showing of criminal activity, but rather a probability of criminal activity.” Commonwealth v. Gray, 322 Pa.Super. 37, 46, 469 A.2d 169, 173 (1983) (citations omitted). “The task of an issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Miller, 334 Pa.Super. 374, 382, 483 A.2d 498, 501-502 (1984) (quoting Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332). Finally, we note that a magistrate’s decision to issue a search warrant should be accorded great deference on appeal. Commonwealth v. Fromal, 392 Pa.Super. 100, 572 A.2d 711, appeal denied, 527 Pa. 629, 592 A.2d 1297 (1990).

Applying this standard to the instant case, we find that a common sense reading of the affidavit provided sufficient basis for the magistrate to believe that contraband would likely be found at 5653 Catherine Street. As set forth in the affidavit, police received information concerning the storage of narcotics at 5653 Catherine Street from a confidential informant. This informant had just a week earlier supplied information about drug trafficking on that same block that was directly corroborated and found to be accurate. Thus, the reliability of this informant was established. See, e.g., Commonwealth v. Carlisle, 348 Pa.Super. 96, 501 A.2d 664 (1985) (“[a] tip from an anonymous informant can form the basis for probable cause as long as there is adequate evidence of the informant’s credibility”); Commonwealth v. White, 311 Pa.Super. 146, 152, 457 A.2d 537, 539 (1983) (reliability is shown by past investigative leads which proved accurate).

Moreover, in the present case, the informant provided a detailed description of the scheme. See United States v. Kemp, 421 F.Supp. 563, 566 (W.D.Pa.1976) (the detail with which a drug transaction is described may be viewed as evidence the informant is speaking from personal knowledge); accord Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320, 1327 (1983). In addition, a portion of the information she provided came directly from the supplier himself. See Singleton 412 Pa.Super. at 555, 603 A.2d at 1074 (hearsay statements may be credited by issuing authority).

Viewing all of these facts together, the magistrate, at the very least, had a substantial basis to conclude that probable cause existed to issue a search warrant for 5653 Catherine Street. Thus, we find the trial court erred in granting appellee’s motion to suppress. Accordingly, we reverse the finding of the trial court and remand for proceedings consistent with this opinion.

Reversed and remanded. Jurisdiction relinquished.

      . At the time the warrant was executed, appellee was sixteen years old.

      . These acts include: possessing cocaine with intent to deliver it, knowingly or intentionally possessing cocaine, possessing an instrument of crime, prohibited offensive weapons and criminal conspiracy (Petition No. 2196-93-03).

      . The informant stated that the drugs confiscated from 5622 Catherine Street, a week earlier, were supplied by a black male known as "Ricky." She stated that since Ricky had lost such a large quantity of drugs he is now only giving a small amount of drugs to these persons inside 5622 Catherine Street. She also explained that when 5622 Catherine Street runs out Ricky will get more vials from 5653 Catherine Street and bring them back to 5622 Catherine for sale. The informant stated that Ricky resides at 5653 Catherine Street with his aunt and uncle. See N.T., June 11, 1993 at 5a-6a, 15a-16a.

      . The informant stated that she has heard Ricky talking in the neighborhood saying that 5622 Catherine Street was too- "hot” and that he felt that his drugs would be safe at his aunt’s house where he could keep an eye on them. See N.T., June 11, 1993 at 5a-6a, 15a-16a.


author: KELLY, Judge: JOHNSON, Judge,

text:
    643 A.2d 109
    COMMONWEALTH of Pennsylvania v. Pamela ANDERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 20, 1993.
    Filed May 26, 1994.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Michael Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before BECK, KELLY and JOHNSON, JJ.
   KELLY, Judge:

In this appeal we must determine whether an enforced plea agreement to impose a sentence on a new conviction to run concurrently with a sentence previously imposed on a prior conviction is binding on the sentencing court when imposing sentence following probation revocation. We conclude that where a court accepts a guilty plea made pursuant to a negotiated plea bargain for a sentence concurrent with a prior sentence and imposes a concurrent sentence in compliance with the terms of the plea bargain, the court has enforced the plea bargain; upon resentencing, following probation revocation, the court remains bound to the plea bargain and must impose concurrent sentences. Accordingly, we vacate the September 10, 1992 order of the Allegheny County Court of Common Pleas entering judgment of sentence and remand for the imposition of concurrent sentences.

We set forth the relevant facts and procedural history of this case as follows. On December 10, 1987, appellant pled guilty to two counts of burglary. After accepting the plea, the court sentenced appellant to eleven and one-half {lllk) to twenty-three (23) months incarceration to be followed by a five-year probation period. Two months later, on February 12, 1988, appellant entered a negotiated guilty plea to one count of theft by unlawful taking or disposition and one count of receiving stolen property. The court accepted appellant’s guilty plea and sentenced her to five years probation. Pursuant to the terms of the negotiated plea bargain, this second sentence for the theft convictions was ordered to run concurrently with appellant’s sentence for the burglary convictions.

Appellant subsequently violated probation by committing additional criminal offenses. After a hearing on September 10, 1992, the trial court revoked appellant’s probation. At resentencing, following probation revocation, the trial court sentenced appellant to two to five years incarceration on the burglary convictions and two to four years incarceration on the theft convictions. The trial court ordered these sentences to be served consecutively, for an aggregate four to nine yéar term of total confinement. This timely appeal followed.

On appeal, appellant raises one issue for our consideration:

I. WAS COUNSEL INEFFECTIVE FOR NOT OBJECTING TO THE COURT’S FAILURE TO COMPLY WITH A PLEA AGREEMENT AT ONE INFORMATION IN IMPOSING A TERM OF IMPRISONMENT TO RUN CONSECUTIVE TO A TERM OF IMPRISONMENT IMPOSED AT ANOTHER INFORMATION UPON THE REVOCATION OF PROBATION AT BOTH INFORMATIONS?
A. WAS THIS ISSUE WAIVED BY APPELLATE COUNSEL’S FAILURE TO RAISE IT IN THE CONCISE STATEMENT OF REASONS COMPLAINED OF ON APPEAL?

Appellant’s Brief at 4.

The scope of review in an appeal from the judgment of sentence imposed following probation revocation “is limited to the validity of the revocation proceedings and the legality of the final judgment of sentence.” Commonwealth v. Gilmore, 465 Pa. 202, 205, 348 A.2d 425, 427 (1975); Commonwealth v. Beasley, 391 Pa.Super. 287, 570 A.2d 1336 (1990); Commonwealth v. Czapla, 287 Pa.Super. 335, 430 A.2d 313 (1981); Commonwealth v. Sylvanus, 246 Pa.Super. 93, 369 A.2d 826 (1976). A challenge to the validity of a sentence is a question as to the legality of the sentence, a non-waivable matter. Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983); Commonwealth v. Quinlan, 433 Pa.Super. 111, 639 A.2d 1235 (1994); Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281, 1289 (1983). Appellate courts of this Commonwealth may consider sua sponte the issue of the legality of a sentence. Commonwealth v. Murphy, 405 Pa.Super. 452, 592 A.2d 750 (1991); Commonwealth v. Blassingale, 391 Pa.Super. 395, 571 A.2d 426 (1990), appeal denied, 526 Pa. 627, 584 A.2d 311 (1990).

In her substantive claim, appellant maintains that the trial court erred in sentencing her to consecutive sentences because the trial court was bound, by the plea bargain existing at the time of the original sentencing, to impose concurrent sentences following probation revocation. Once the court accepted appellant’s guilty plea and the terms of the plea bargain, the court’s sentencing alternatives at the original sentencing hearing were circumscribed accordingly. Upon probation revocation, appellant posits, the trial court remained bound by the plea agreement to reimpose concurrent sentences. Because the court sentenced appellant to serve her sentences consecutively, the court abrogated the plea bargain which the court had accepted and enforced at the original sentencing proceeding. In so doing, appellant concludes, the court imposed an invalid sentence. We agree.

Appellant’s claim goes to the validity of her sentence. Therefore, her challenge has not been waived through counsel’s inadvertence and is properly before us on direct appeal from the judgment of sentence following probation revocation. See Commonwealth v. Isabell, supra; Commonwealth v. Gilmore, supra. Thus, we proceed directly to the substance of appellant’s claim.

Plea bargaining is well recognized as a significant aspect in the fulfillment of the criminal justice system. Commonwealth v. Coles, 365 Pa.Super. 562, 530 A.2d 453 (1987), appeal denied, 522 Pa. 572, 559 A.2d 34 (1989); Commonwealth v. McKee, 226 Pa.Super. 196, 313 A.2d 287 (1973) (citations omitted). The disposition of criminal charges following plea discussions is mutually advantageous to the prosecution and the accused, particularly to a defendant who- sees slim possibility of acquittal. Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). For example, in Brady v. United States, supra, the United States Supreme Court stated:

For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious — his exposure is reduced, the correctional process can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages — the more promptly imposed punishment after an admission of guilty may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant’s guilt or in which there is substantial doubt that the State can sustain its burden of proof.

Id. 397 U.S. at 752, 90 S.Ct. at 1471, 25 L.Ed.2d at 758. Thus,

, the value of the plea bargaining process cannot be discounted.

In Pennsylvania, the plea process is governed by Pa. R.Crim.P. 319 which, in pertinent part, provides:

(b) Plea Agreements.
(1) The trial judge shall not participate in the plea negotiations preceding an agreement.
(2) When counsel for both sides have arrived at a plea agreement they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.
(3) If the judge is satisfied that the plea is understanding^ and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.

Pa.R.Crim.P. 319(b). Thus, Pa.R.Crim.P. 319 allows that where the court cannot concur in the negotiated sentence, the court must permit the defendant to withdraw the plea. Id.; Commonwealth v. Fazenbaker, 248 Pa.Super. 433, 375 A.2d 175 (1977); Commonwealth v. Barrett, 223 Pa.Super. 163, 299 A.2d 30 (1972).

As a general proposition, sentencing is a matter vested in the sound discretion of the trial court and will remain undisturbed on appeal, absent an abuse of that discretion. Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992) (en banc), appeal denied, 535 Pa. 615, 629 A.2d 1377 (1993) . Upon acceptance of a plea agreement, however, the trial court is bound to comply with the terms of that agreement. Commonwealth v. Kioske, 337 Pa.Super. 593, 487 A.2d 420 (1985). A sentence recommendation is among the “terms” of a plea bargain. Commonwealth v. Coles, supra, 365 Pa.Super. at 565-66, 530 A.2d at 455 (citing Commonwealth v. Sutherland, 234 Pa.Super. 520, 340 A.2d 582 (1975)). Therefore, a negotiated sentence is binding on the court where the sentence is plainly set forth on the record, understood and agreed to by the parties and approved by the trial court. Commonwealth v. McClendon, 403 Pa.Super. 467, 589 A.2d 706 (1991) (en banc), appeal denied, 528 Pa. 622, 597 A.2d 1151 (1991).

Instantly, at the time of the original sentencing, the trial court accepted appellant’s guilty plea to the charges of theft and receiving stolen property. The court acknowledged on the record the existence of a negotiated plea bargain wherein appellant agreed to plead guilty in exchange for the imposition of a sentence concurrent with the prior sentence imposed on the burglary convictions. Accordingly, the trial court imposed a five-year probation period to run concurrently with the prior burglary sentence.

Nothing in the record indicates an inability on the part of the trial court to concur in the negotiated sentence. Nor did appellant petition to -withdraw her plea; the trial court provided no opportunity to appellant to withdraw her plea. Instead, the trial court accepted the plea and complied with the terms of the plea agreement because it was bound to do so upon acceptance of the plea. See Commonwealth v. Kioske, supra. By accepting the plea agreement, which included a negotiated sentence, the trial court, in effect, circumscribed its sentencing alternatives, the parameters of which were described in the plea agreement. We conclude that the trial court’s initial sentencing options were thereby limited to the imposition of the negotiated sentence, i.e:, concurrent sentences.

The basic objective of a probation order is to provide an alternative means of rehabilitation 'without resort to incarceration. Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973). A trial court may revoke an order of probation or modify the original probationary period by lengthening it and by adding reasonable conditions. Commonwealth v. Miller, 358 Pa.Super. 219, 516 A.2d 1263 (1986), appeal denied, 515 Pa. 599, 528 A.2d 956 (1987); Commonwealth v. McBride, 289 Pa.Super. 396, 433 A.2d 509 (1981). Upon revocation of probation, the trial court possesses the same sentencing alternatives which were available at the time of the initial sentencing. 42 Pa.C.S.A. § 9771(b); Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982); Commonwealth v. Miller, supra; Commonwealth v. Perry, 342 Pa.Super. 355, 492 A.2d 1158 (1985). However, upon revocation of probation, 42 Pa. C.S.A. § 9771 imposes a statutory limitation on a sentence of total confinement as follows:

(c) Limitation on sentence of total confinement. — The court shall not impose a sentence of total confinement upon revocation unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.

42 Pa.C.S.A. § 9771(c). Furthermore, any sentence imposed after probation revocation must not exceed the maximum sentence originally imposed. Commonwealth v. Harrison, 264 Pa.Super. 62, 398 A.2d 1057 (1979). Thus, in addition to the limitations of the original plea agreement, the trial court was limited as well by other considerations when it resentenced appellant following probation revocation.

In the present appeal, appellant does not oppose the sentence of total confinement. The record provides ample reason for the sentence of total confinement including appellant’s admission to numerous criminal offenses in violation of her probation. Although appellant entreated the trial court to impose a sentence, alternative to total confinement, the trial court’s decision to incarcerate appellant is unassailable. Nevertheless, the court’s consecutive sentencing scheme, imposed following probation revocation, is invalid for at least two reasons.

First, the trial court’s sentencing alternatives at the time of initial sentencing were circumscribed by the plea agreement. See Commonwealth v. Kioske, supra. The imposition of consecutive sentences upon probation revocation was in direct abrogation of the plea agreement, and enlarged the sentencing options which had been available to the court at the time of the original sentencing. Second, by imposing consecutive sentences following probation revocation, the trial court exceeded the maximum sentence originally imposed. See Commonwealth v. Harrison, supra: On resentencing, the trial court imposed an aggregate term of four to nine years incarceration, which exceeded the maximum limit of the original sentence. To permit appellant’s sentence to stand would be tantamount to allowing the trial court to modify its original sentence out of time. See Commonwealth v. Quinlan, supra (where the original sentence is not challenged as illegal, patently contradictory, or fraudulently procured, the rules requiring timely modification of the sentence control. See 42 Pa.C.S.A. § 5505; Pa.R.Crim.P. 1410; Pa.R.A.P. 1701).

We hold, therefore, that the trial court was without authority in this case to alter the sentencing scheme from concurrent to consecutive sentences when resentencing upon probation revocation. In so doing, the trial court imposed a sentence that directly abrogated the accepted and enforced plea agreement and exceeded the maximum limit of the original sentence. Accordingly, we vacate judgment of sentence and remand for resentencing in accordance "with this opinion.

Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction is relinquished.

JOHNSON, J., filed a dissenting opinion.

JOHNSON, Judge,

dissenting:

This case was presented to this Court on submission, without argument. As sometimes happens, the issues sought to be determined here would have benefited from oral advocacy and the responses to questions arising from the particular facts of this case. I find that the issue of sentencing abuse has not been properly preserved and that post-conviction relief is not available on the facts surrounding this appeal: These are the only issues raised in the Brief for Appellant and contained in the Commonwealth’s Brief for Appellee by way of response. I cannot join my colleagues in first raising, and then deciding, a claim of illegality when that claim was never presented nor even suggested by the appellant. Accordingly, I am constrained to dissent.

At the threshold, I conclude that the issue sought to be raised on this appeal was not preserved in the trial court and is, therefore, waived. Pa.R.A.P. 302(a), 42 Pa.C.S.; Preiser v. Rosenzweig, 418 Pa.Super. 341, 345, 614 A.2d 303, 305 (1992), appeal granted, 535 Pa. 637, 631 A.2d 1009 (1993) (table). The pleadings filed are instructive in understanding the different positions taken by members of this panel on this appeal.

The Motion to Reconsider Probation Violation Sentence, filed September 11, 1992, sets forth in pertinent part:

5. Defendant requests reconsideration based upon the following:
A. Defendant has already served \Vk to 23 months at CC87083[3]2.
B. The effect of Your Honor’s sentence is, in effect, to give nearly the maximum sentence possible (when the time is accumulated with the time already served). This is far beyond the Guideline sentence for a first offense; the subsequent convictions should not factor into the Guideline as each subsequent sentence already “figured in” the prior convictions.
C. Defendant has already been incarcerated for 15 month[s] continuously since her last arrest.
D. Although defendant’s behavior cannot be condoned, the sentence is very harsh considering she has already served sentences on the violating convictions.
E. Defendant’s underlying drug addiction can better be addressed at the House of Crossroads or the Meadville Medical Center programs, both of which are willing to accept her.

The Concise Statement of Matters Complained of on Appeal, filed May 3, 1993, contains the following as the only matters sought to be raised on appeal:

6. The Appellant intends to raise the following issue[s] on appeal:
a. The Court erred in failing to state on the record sufficient reasons for the imposition of sentence after the revocation of probation; and counsel was ineffective for failing to raise this issue at the hearing or in the Motion to Reconsider Sentence.
b. The Court abused its discretion in imposing a manifestly excessive sentence which was based solely on the nature of the crimes committed while the defendant was on probation rather than on her rehabilitative needs and the circumstances of the offense for which she was originally sentenced.

In the Brief for Appellant, filed October 27, 1993, the Statement of the Questions Presented, appearing at page 4, sets forth in its entirety:

I. WAS COUNSEL INEFFECTIVE FOR NOT OBJECTING TO THE COURT’S FAILURE TO COMPLY WITH A PLEA AGREEMENT AT ONE INFORMATION IN IMPOSING A TERM OF IMPRISONMENT TO RUN CONSECUTIVE TO A TERM OF IMPRISONMENT IMPOSED AT ANOTHER INFORMATION UPON THE REVOCATION OF PROBATION AT BOTH INFORMA-TIONS?
A. WAS THIS ISSUE WAIVED BY APPELLATE COUNSEL’S FAILURE TO RAISE IT IN THE CONCISE STATEMENT OF REASONS COMPLAINED OF ON APPEAL?
Not addressed by the Court below.

On this appeal, Pamela Anderson, through the Office of the Public Defender, now ignores and abandons the only issues properly preserved through post-trial motions and her Statement of Matters Complained of on Appeal. Since she does not now advance contentions included within her trial court pleadings, those issues outside of the pleadings would normally be waived. Matters raised for the first time on appeal are not properly preserved for appellate review and will not be considered. Pa.R.A.P. 302(a), 42 Pa.C.S.; Weir v. Weir, 428 Pa.Super. 515, 524, 631 A.2d 650, 654 (1993); Kryeski v. Schott Glass Technologies, Inc., 426 Pa.Super. 105,114, 626 A.2d 595, 599 (1993). By claiming ineffectiveness, however, Anderson attempts to avoid waiver. She would have this Court review a sentencing issue which falls outside of the eligibility requirements of the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.

Our legislature has stated in plain terms the basis upon which a sentence can be reviewed, post conviction, and otherwise unpreserved: review is limited to where the conviction resulted from “[t]he imposition of a sentence greater than the lawful maximum.” 42 Pa.C.S. § 9543(a)(2)(vii). There is no suggestion by Anderson or by my esteemed colleague, Judge Kelly, that that intentionally narrow requirement has been met in the present case.

If we turn to the basis upon which an ineffectiveness claim may be brought, the legislature has been equally clear. To be eligible for relief, Anderson must be able to plead and prove, among other requirements, that her conviction resulted from “[ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(h).

The claim advanced on this appeal, i.e., that counsel was ineffective for not objecting to the court’s failure to comply with an earlier plea agreement, does not implicate the truth-determining process. Moreover, the sentence does not exceed the lawful maximum. Because the matter raised on appeal was not properly preserved through a motion to modify sentence, I conclude that the judgment of sentence must, without more, be affirmed. Accordingly, I dissent.

It is true that this Court, in Commonwealth v. McMullen, 365 Pa.Super. 556, 559 n. 1, 530 A.2d 450, 452 n. 1 (1987), stated in dicta, by use of a footnote, that a sentencing guidelines claim, when couched in terms of the ineffective assistance of counsel, raises an issue under the sixth amendment of the federal constitution, thereby escaping the need for compliance with Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and Pa.R.A.P. 2119(f). There is no discussion in that opinion, however, of the legislatively created separation between ineffectiveness claims, which require an undermining of the truth-determining process, 42 Pa.C.S. § 9543(a)(2)(ii), and questions regarding the legality of the sentence, which require that the sentence under review be “greater than the lawful maximum” to merit review. Id. § 9543(a)(2)(vii).

I would reject what my most esteemed colleague is intent on ignoring, namely, the appellant’s sole contention: that she can escape counsel’s failure to preserve the sentencing issue, simply by wrapping the claim in ineffectiveness garb.

My colleague correctly observes that our scope of review in an appeal from judgment of sentence following probation revocation is limited to the validity of the revocation proceedings and the legality of the final judgment of sentence. Commonwealth v. Gilmore, 465 Pa. 202, 205, 348 A.2d 425, 427 (1975); Commonwealth v. Beasley, 391 Pa.Super. 287, 570 A.2d 1336 (1990). I also agree with Judge Kelly that appellate courts may consider, sua sponte, the issue of the legality of the sentence. What I find missing in my colleague’s careful and otherwise persuasive analysis is any bridge between Anderson’s claim that counsel was ineffective and any possible argument that the sentence imposed was illegal. I submit that this nexus does not exist and the contention must, accordingly, fail.

My colleague has utilized a footnote to excuse the fact that his analysis and disposition are totally unrelated to the issue presented by appellant. While conceding that Anderson has presented her argument under the mantle of ineffective assistance of counsel, the majority would review the claim as a challenge to the legality of the sentence! Majority Opinion at 314 n. 6. It bears repeating what issues were presented to the trial court in this case. After probation revocation sentencing, Anderson advanced the claim that the sentence was “very harsh.” There was no suggestion of illegality. In submitting her Concise Statement of Matters Complained of on Appeal, Anderson asserted that she would raise only two issues: 1) failure to state on the record sufficient reasons for the sentence, and 2) the sentence was manifestly excessive. Again, there was no suggestion that the sentence was, in any manner, illegal.

I give appellate defense counsel credit for seeking to fashion an argument for appeal in ineffectiveness garb, realizing that proper issues had not been preserved. Pa.R.A.P. 302(a), 42 Pa.C.S.; Weir v. Weir, supra; Kryeski v. Schott Glass "Technologies, Inc., supra. A corollary to this waiver rule is that this Court should not, sua sponte, seek to raise and then decide issues not presented by the parties. Compare Wiegand v. Wiegand, 461 Pa. 482, 484, 337 A.2d 256, 257 (1975), on remand, 242 Pa.Super. 170, 363 A.2d 1215 (1976) (proper appellate function is exceeded when reviewing court seeks to decide issues not raised by the parties). To lay aside the ineffectiveness claim — the only issue raised by Appellant Anderson — and fashion an argument that the sentence was illegal — a position understandably not taken by experienced appellate defense counsel — violates all of the rules governing appellate review by this intermediate court. I cannot join in what I view to be a radical departure from our established procedures and rules.

I would return to the paperbacks which must govern this appeal. The claim, as articulated by Anderson, asks us to review a sentencing issue that neither was preserved by proper pleading in the trial court nor implicates the PCRA exception limited to sentences which exceed the maximum. I find the issue presented by Anderson to be waived and ineligible for review under the PCRA. Accordingly, I must respectfully dissent.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 3921(a).

      . 18 Pa.C.S.A. § 3925.

      . See Commonwealth v. Mallon, 267 Pa.Super. 163, 406 A.2d 569 (1979) (one implied condition of any probation sentence is that the defendant must not commit another offense).

      . An issue of whether a sentence is legal or valid can arise in numerous contexts, and is not limited to, for example, whether the trial court exceeded the allowable statutory maximum sentence. Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990). See, e.g., 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) (the Mandatory Minimum Sentencing Act, 42 Pa.C.S.A. § 9712 et seq., operates to divest the judge of discretion to impose a sentence less than that prescribed by the appropriate provision; if a lesser sentence is imposed, the sentence is not a legal sentence); Commonwealth v. Quinlan, supra (sentence imposed or modified by a tribunal without jurisdiction is not a legal sentence); Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992) (en banc) (a challenge to separate sentences imposed for crimes which should have merged for sentencing purposes is an issue of the legality of the sentence); Commonwealth v. Hollawell, 413 Pa.Super. 42, 604 A.2d 723 (1992) (failure of sentencing court to credit a defendant for time served, per Pa.R.Crim.P. 1406, raises a legality of the sentence issue); Commonwealth v. Harrison, 264 Pa.Super. 62, 398 A.2d 1057 (1979) (upon revocation of probation, the imposition of a sentence which exceeds the maximum sentence originally imposed raises an issue as to the legality of the second sentence).

      . Appellant presents her argument under the aegis of ineffective assistance of counsel. However, we review appellant’s claim as a challenge to the legality of her sentence. Therefore, the ineffectiveness analysis does not apply in this case.

      . The standards set forth under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. do not apply to the instant appeal, which is a direct appeal from appellant's judgment of sentence imposed following probation revocation.

      . At the time of initial sentencing, once the trial court accepted the guilty plea and concurred in the terms of the plea bargain, the trial court no longer had the option to impose a sentence for the theft convictions consecutive to the prior sentence for the burglary convictions.

      . For appellant’s burglary convictions, she received a sentence of eleven and one-half to twenty-three months of total confinement to be followed by a five year period of probation. For appellant’s theft conviction, she received a five year probation period to run concurrent with the prior sentence. Hence, appellant’s original sentence had an outside limit of seven years, less one month.

      . In Commonwealth v. Bischof 420 Pa.Super. 115, 616 A.2d 6 (1992), the appellant argued that his sentence should be vacated because the trial court ordered him to serve consecutive periods of incarceration on the two sentences for which he was recommitted on account of parole violations, when these sentences were ordered originally to run concurrently pursuant to a negotiated plea agreement. This Court agreed with the appellant’s contention in that case because altering concurrent sentences to consecutive sentences constituted a sentence enhancement having certain constitutional implications. Id. at 121, 616 A.2d at 10. The Court distinguished the Bischof case from those instances where the court revokes a probationary sentence and is authorized to modify the original probationary sentence by lessening or increasing the probationary term and/or adding reasonable conditions to the probation term.
      The Commonwealth argues that the case at bar is analogous to those instances where probation orders have been modified. See Commonwealth v. Miller, supra; Commonwealth v. McBride, supra. Relying on Commonwealth v. Bischof, the Commonwealth posits that the trial court was free to increase appellant’s sentence when she proved to be a poor probation risk because the orders of probation were conditional, not fixed sentences. To the extent that the trial court was free to revoke or to modify the orders of probation because these orders are conditional, we agree with the Commonwealth’s analysis. However, in the present case, the court did not seek to modify the probation periods by lessening or extending the period and/or adding conditions. 42 Pa.C.S.A. §§ 9771, 9754. Here, the trial court revoked appellant’s probation and imposed sentences of total confinement without deference to the plea agreement.
      Appellant is not complaining that the trial court erred in revoking her probation and replacing the probation with a term of total confinement. Nor is she pressing, on appeal, for a sentence of modified probation. Appellant maintains that the essence of her plea bargain was concurrent, not consecutive sentences, whatever those sentences might be or become; and that her probation violations did not undo the entire plea agreement but only authorized the trial court to revoke probation and impose a term of total confinement. That the trial court initially sentenced appellant to a term of probation, rather than to a term of total confinement, to run concurrently with a prior sentence is not controlling. Thus, while the trial court acted within its authority in revoking appellant's probation and imposing a term of incarceration in lieu thereof, see Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982), nevertheless, we conclude, the trial court remained bound to impose concurrent sentences pursuant to the negotiated plea bargain. To permit otherwise is to permit a trial court to circumvent a negotiated sentence merely by imposing a sentence of probation. This we cannot allow, as such an action would render a negotiated plea agreement a meaningless gesture.

      . “Where an appellate court determines that a sentence is illegal or otherwise improper, the proper remedy is to vacate the sentence and remand the matter to the trial court for sentencing in accordance with the ruling of the appellate court.” Commonwealth v. Ward, 524 Pa. 48, 52, 568 A.2d 1242, 1244 (1990). See also Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987) (quoting 42 Pa.C.S.A. § 706 (appellate court may affirm, modify, vacate, set aside or reverse any order ... and may remand the matter and direct the entry of such an appropriate order or require ... further proceedings ...)); Commonwealth v. Bigelow, 416 Pa.Super. 449, 611 A.2d 301 (1992) (appellate court may vacate judgment of sentence and remand to the trial court when disposition of case on appeal may alter sentencing scheme). But see, Commonwealth v. Britton, 334 Pa.Super. 203, 482 A.2d 1294 (1984) (en banc), appeal dismissed, 509 Pa. 620, 506 A.2d 895 (1986) (illegal sentence may be vacated and amended directly or remanded for, resentencing); Commonwealth v. Johnston, 348 Pa.Super. 160, 501 A.2d 1119 (1985), affirmed, 515 Pa. 454, 530 A.2d 74 (1987) (Superior Court has the option to remand for resentencing or to amend a sentence directly where the sentence requires correction).


author: SAYLOR, Judge:

text:
    643 A.2d 118
    Robert J. TRIFFIN, Appellant, v. Anthony DISALVO, Sr., a/k/a Big Tony DiSalvo a/k/a James D. Hosey a/k/a Richard Wagner and Richard Toll and Anthony Mark Ltd., (A Pennsylvania Corp.) (IND. & t/a), A & M, LTD., a/k/a A & M Check Cashing, a/k/a A & M Insurance Service a/k/a, A & M Tag Center and Gina Marie Burke and Anthony DiSalvo, Jr., a/k/a, Little Tony DiSalvo and James D. Hosey and Richard Wagner, Appellees.
    Superior Court of Pennsylvania.
    Argued March 1, 1994.
    Filed June 2, 1994.

      Robert J. Triffin, pro se.
    Geoffrey B. Gompers, Philadelphia, for appellees.
    Before CIRILLO, SAYLOR and HESTER, JJ.
   SAYLOR, Judge:

Appellant, Robert J. Triffin (Triffin), appeals from the trial court’s order of disqualification entered on June 4, 1993. The provisions of this order may be summarized as follows: 1) Triffin was disqualified from participating in this action as a plaintiff and/or as a “pro persona plaintiff;” 2) Triffin was enjoined from suing defendants, his former clients; 3) Triffin was enjoined from revealing to third parties any information obtained from defendants through the former confidential relationships; 4) The action was dismissed with prejudice since the court found an impermissible conflict of interest. For the reasons which follow, we affirm.

During the summer, of 1992, Triffin approached Appellee, Anthony Mark, Ltd. t/a A & M Check Cashing, and spoke with its personnel about doing collection work for A & M. Upon arriving at A & M’s office, Triffin explained to A & M that he was a “lawyer” specializing in the collection of bad debts; Triffin, however, is not licensed to practice law in any state, although he is a law school graduate. With the permission of A & M, Triffin reviewed confidential information in A & M’s files which included bank statements. Triffin promised A & M that this information would be kept in confidence.

In March 1993, Triffin approached Appellee Burke and told her that he had run across some checks which were cashed by A & M on forged endorsements. Triffin explained that United Jersey Bank was likely to make a claim on these checks and offered to assist A & M and try to settle the matter on its behalf. Shortly after this conversation, Burke provided Triffin with further information with respect to the checks in question. Triffin related a settlement figure to Burke and explained that the check should be made payable to him. It was at this moment that Burke realized that Triffin was representing himself rather than A & M and, as a result, the attorney-client relationship terminated.

On April 19, 1993, Triffin sued A & M on a chose in action which he had purchased from United Jersey Bank and which involved the same checks Triffin had discussed with A & M in March 1993. Although it is unclear from the record, it appears that Triffin purchased the chose from United Jersey Bank with the intention of using it to obtain a settlement check made payable to him from A & M.

A & M filed a motion requesting, inter alia, that Triffin be disqualified from participating in this action pro se and otherwise disqualified from suing his former clients, A & M. On May 17, 1993, the trial court conducted a hearing on A & M’s motion, and on June 4, 1993, entered an order disqualifying Triffin from appearing in any capacity in this action, and dismissing his action with prejudice. It is from this order that Triffin appeals.

Triffin raises the following issue on appeal: Whether the trial court erred by disqualifying Triffin from representing himself in any capacity and dismissing his claim with prejudice. The Superior Court’s scope of review

is quite limited in cases in which the final order of the trial judge is called into question. We are bound by the findings of the trial court which have adequate support in the record, so long as the findings do not evince capricious disregard for competent and credible evidence. The trial court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence. However, this court is not bound by the trial court’s conclusions of law. We may draw our own conclusions from the facts as established.

Gemini Equipment v. Penney Supply, 407 Pa.Super. 404, 411, 595 A.2d 1211, 1214 (1991) (citations omitted).

Triffin contends that the trial court erred in disqualifying him and dismissing his case on the basis of an impermissible conflict of interest, since he- is not a lawyer, and therefore is not required to abide by the Code of Professional Responsibility or the Rules of Professional Conduct. We disagree. In McCormick on Evidence, Professor McCormick states:

The privilege for communications of a client with his lawyer hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice. It is sufficient if he reasonably believes that the person consulted is a lawyer, though in fact he is not.

Id., Fourth Edition, Section 88 at p. 322.

Here, Triffin held himself out as an attorney when he met with A & M and agreed to represent them in the United Jersey Bank matter. A & M clearly believed Triffin was an attorney when it permitted him to review confidential bank statements. We agree with the reasoning of the trial court that Triffin should be held to the “same standards of the profession of which he held himself out as a member.”

Canon 4 of the Code of Professional Responsibility requires a lawyer to preserve the confidences and secrets of a client. Additionally, Rule 1.9 of the Pennsylvania Rules of Professional Conduct addresses conflicts of interest and provides:

A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after a full disclosure of the circumstances and consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

Federal courts sitting in Pennsylvania have employed a “substantial relationship” test “to determine, based on the nature and scope of the prior representation, whether ‘confidential information that might have been gained in the first representation [may be] used to the detriment of the former client in the subsequent action.’ ” Reading Anthracite Co. v. Lehigh Coal and Navigation Co., 771 F.Supp. 113, 115 (E.D.Pa.1991), citing I N A Underwriters Ins. v. Nalibotsky, 594 F.Supp. 1199, 1206 (E.D.Pa.1984) (quoting Realco Services Inc. v. Holt, 479 F.Supp. 867, 871 (E.D.Pa.1979).

The court in Realeo explained the substantial relationship test as follows:

If the client in the prior representation might have imparted confidential information to his lawyer to aid the lawyer in dealing with particular issues, and if issues arise in the second suit which would permit the use of such confidences against the original client, the substantial relationship test is met, and disqualification is required.

479 F.Supp. at 871. See also, In Re Birmingham Township, Delaware County, 142 Pa.Cmwlth. 317, 597 A.2d 253 (1991) (“A Motion to Disqualify will also be granted if the representation ... is against a former client when a substantial relationship exists between the subject matter of each representation.”); Ettinger v. Cranberry Hill Corp., 665 F.Supp. 368 (M.D.Pa.1986); Kaminski Brothers Inc., v. Detroit Diesel Allison, 638 F.Supp. 414 (M.D.Pa.1985); American Roller Company v. Budinger, 513 F.2d 982 (3d Cir.1975).

In this case, there is no question that Triffin is attempting to utilize the confidential information he obtained through his review of A & M’s bank files to the detriment of A & M. After advising A & M on the checks in question in March 1993, Triffin cannot be permitted to subsequently use this same confidential information against his former clients. Even if this court did not hold Triffin to the standards of an attorney and apply the Pennsylvania Rules of Professional Conduct, Triffin is still unable to maintain this action in propria persona. Triffin’s case relies solely upon the confidential information which he obtained from A & M when he held himself out as an attorney. There is simply no manner in which Triffin can proceed with this action without using the confidential information he obtained by establishing an attorney-client relationship with A & M. Triffin is thus disqualified from pursuing this action in any capacity and his claim was properly dismissed with prejudice.

Order affirmed.

      . A & M is managed by Appellees, Gina Burke and Anthony DiSalvo, Jr. Appellee, Anthony DiSalvo, Sr. is the President and only officer of A & M. For ease of reference, Appellees will be referred to as A & M.

      . In its opinion, the trial court noted that it is apparently the practice of Triffin to purchase claims of corporations and individuals and place himself in the position of the injured party and then to sue as plaintiff, and that Triffin presently maintains approximately 500 cases on the dockets of the Court of Common Pleas of Philadelphia County. Appellees' Brief points out that in each of these cases Triffin appears under the designation of "propria persona.”

      . Triffin also attempts to raise a procedural challenge to the fact that the trial court, following the hearing on A & M’s motion, entered a final order on the merits. We find this assertion meritless. First of all, we are unable to locate in the record before us for review any objection of Triffin to the manner in which the trial court proceeded. In any event, there is no question that Triffin had ample notice that A & M was challenging his ability to proceed as a plaintiff in this action based upon confidential information which he had received in the course of an attorney-client relationship. Having had notice, and an opportunity to be heard on this issue, Triffin’s due process rights were satisfied.


author: CIRILLO, Judge:

text:
    643 A.2d 121
    John T. CAHILL, Appellant, v. Kirk John SCHULTS and Edward C. Schults.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1994.
    Filed June 7, 1994.

      Lee D. Rockafellow, Morrisville, for appellant.
    Stephen A. Corr, Warminster, for appellees.
    Before CIRILLO, BECK and JOHNSON, JJ.
   CIRILLO, Judge:

John T. Cahill appeals from an order entered in the Court of Common Pleas of Bucks County granting Kirk John Schults’ and Edward C. Schults’ (the Schultses) motion for summary judgment. We affirm.

The instant action arose out of an automobile accident on May 29, 1990. On May 18, 1992, eleven days before the expiration of the statute of limitations, Cahill, through his attorney, Lee D. Rockafellow, Esq., filed a complaint in Bucks County alleging personal injuries as a result of the Schultses’ negligence. A copy of the complaint was also sent to the Schultses’ insurance carrier. Along with the complaint, Cahill delivered to the prothonotary an order for sheriffs service; Cahill did not, however, attach a check payable to the sheriff with the order for service. At Roekafellow’s deposition, when asked why he failed to attach a check for the sheriff, Rockafellow responded that he “wasn’t sure.” He elaborated on the procedure followed in Bucks County when an order for service is sent in the absence of a payment for the sheriff:

Standard procedure of that is they deliver it down to the sheriffs office. They won’t serve it without the check, and ■ what they do for attorneys that are well-known, they will call them up and say, “This is the amount,” and then you either send a check — and generally Joanne [Rockafellow’s secretary] handles that, all though [sic] I do, and normally we will take sufficient checks with us. But that does not happen all the time.

When Rockafellow later discovered that he had not received a bill or telephone call from the sheriffs office, he reinstated the complaint on August 10, 1992, hand-delivered it to the sheriffs office, and requested immediate service. The reinstated complaint was served upon the Schultses on August 27, 1992, over three months after the original complaint was filed.

A discovery period ensued to determine the circumstances surrounding the failure to timely serve the complaint. See Pa.R.C.P. 401(a). Subsequently, the Schultses filed a motion for summary judgment, which the trial court granted. This appeal followed.

The issues on appeal, as set forth by Cahill, are as follows:

(1) Does the filing of a complaint and delivery of the complaint and additional copies, together with Sheriffs service in accordance with local custom constitute a good faith effort to toll the statute of limitations?
(2) Is the sending of a copy of the complaint to the Schults’ insurance carrier, who had been handling and negotiating all matters concerning the claim for nearly two years, sufficient to put the Schultses on notice of a claim for purposes of tolling the statute of limitations?

It is well established that summary judgment shall be entered

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b). The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Summary judgment may be entered only in cases where the right is clear and free from doubt.

Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992).

Because Cahill’s issues are so closely related, and this is conceded by Cahill in his appellate brief, we shall address them as one. The Schultses do not dispute the fact that Cahill filed his complaint within the time permitted by the applicable statute of limitations. This act alone, however, is not the only requirement for correctly commencing a law suit. Service of process must also be properly effectuated.

The mere filing of a praecipe for a writ of summons, without additional affirmative action to effect service of the writ, does not constitute a good faith effort to notify a defendant that he is being sued, and therefore is not sufficient to toll the statute of limitations and preserve a cause of action.

Feher by Feher v. Altman, 357 Pa.Super. 50, 53, 515 A.2d 317, 318 (1986).

Both parties, along with the trial court, agree that this case is governed by the Pennsylvania Supreme Court decision in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976) and its progeny. The rule which emerged from Lamp was that “a writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” Id. at 478, 366 A.2d at 889. In support of its ruling, the Pennsylvania Supreme Court espoused,

[T]here is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service. In addition, we find that such a rule is inconsistent with the policy underlying statutes of limitation of avoiding stale claims, and with that underlying our court rules of making the process of justice as speedy and efficient as possible.... Our purpose is to avoid the situation in which a plaintiff can bring an action, but, by not making a good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations.

Id. at 477, 366 A.2d at 888-89.3 “[Ojne’s ‘good faith’ effort to notify a defendant of the institution of a lawsuit is to be assessed on a case-by-case basis[.]” Leidich v. Franklin, 394 Pa.Super. 302, 310, 575 A.2d 914, 918 (1990). There is no mechanical approach to apply in determining what constitutes a good faith effort to effectuate service; it is the plaintiffs burden, however, to show that his efforts were reasonable. Rosenberg v. Nicholson, 408 Pa.Super. 502, 506-07, 597 A.2d 145, 147 (1991). “At a minimum, the good faith requirement in [Lamp ] mandates compliance with the Pennsylvania Rules of Civil Procedure and, importantly, local practice.” Feher, 357 Pa.Super. at 54, 515 A.2d at 319 (1986) (emphasis added). Cahill, we conclude, has failed to satisfy his burden.

Here, while the original complaint was filed within the requisite two year period, Cahill failed to timely effectuate service pursuant to Pennsylvania Rule of Civil Procedure 401(a). Cahill did not complete service within thirty days of filing his complaint.

Significantly, it has been held that

Depending upon the process in a particular county, stalling the legal machinery can be accomplished “by instructing either the prothonotary or the sheriff to hold the writ, by personally retaining the writ and not delivering it to the sheriff for service, or by neglecting to pay the sheriff his fee.”

Green v. Vinglas, 431 Pa.Super. 58, 64, 635 A.2d 1070, 1073 (1993) (quoting Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 592-93, 511 A.2d 757, 759 (1986); Lamp, 469 Pa. at 472, 366 A.2d at 886) (emphasis added)); see also Sanders, 424 Pa.Super. at 375-76, 622 A.2d at 968.

The facts and circumstances in this court’s recent decision in Green, supra, are analogous to those in the instant case. In Green, plaintiffs counsel gave the Blair County Prothonotary a writ of summons, a check to cover the filing fee, and instructions to have the sheriff serve the writ. Unbeknownst to counsel, however, service had to be made outside of Blair County and, as such, the local practice dictated that the costs required for service be advanced to the Blair County Sheriffs Office. Because counsel failed to advance the sheriffs fee, the writ was not delivered to the outside county and service was not effectuated before the mandated thirty day period. See Pa.R.C.P. 401. Employing the Lamp rationale, with a focus on subsequent cases interpreting the Lamp decision, this court held that the attorney in Green did not meet her burden of good faith when she neglected to advance the necessary costs for deputized service as required by local practice.

In the case at hand, Rockafellow’s deposition testimony revealed that “standard procedure” dictated that the sheriffs office would not effectuate service without payment. It is clear that Rockafellow did not intentionally neglect his duties in regard to the service requirements. Unfortunately for Cahill, however, Pennsylvania appellate courts that have found non-compliance with Lam,p have done so even where attorneys have not met their burden of good faith due to mere mistake or inadvertence. Farinacci, supra; Green, supra. See also Rosenberg, supra (court found a lack of good faith where plaintiff twice attempted to serve defendant at an incorrect address, reasoning that simple neglect regarding service requirements which serves to delay a defendant’s notice of action, though unintentional, may be sufficient to bring the rule in Lamp to bear); Feher, supra (court found that while plaintiffs counsel did not actively attempt to thwart service of a writ, he also did not take any affirmative action to see that the writ was served; thus, counsel did not meet his burden of good faith when he failed to prepay the sheriff or give the sheriff instructions); Weiss v. Equibank, 313 Pa.Super. 446, 460 A.2d 271 (1983) (court recognized that mere neglect or mistake is an example of failing to fulfill counsel’s responsibility to see to it that service requirements are carried out; thus, the court found non-compliance with Lamp based on counsel’s failure to give instructions to the sheriff and pay for the costs of service as required by the local rules).

Cahill also argues that the Schultses were, in effect, “served” with the complaint when a copy of the complaint was mailed to the Schultses’ insurance company at the same time it was delivered to the prothonotary’s office. We disagree. Sending initial process by certified mail, rather than by the sheriff, is improper. See Mooney v. Borough of West Mifflin, 134 Pa.Commw. 557, 578 A.2d 1384 (1990) (delivery of a complaint by certified mail rather than service by the sheriff was unacceptable and was not cured by service of an amended complaint after the expiration of the statutory period); Pa. R.C.P. 400(a). Moreover, this court has held that “[attempted service by anyone else [other than the sheriff] — even a duly elected constable — does not constitute effective service.” Vogel v. Kutz, 348 Pa.Super. 133, 501 A.2d 683 (1985).

In light of the foregoing authority, there is no question that Cahill, through his attorney, failed to comply with the local practice in Bucks County pertaining to service. By neglecting to pay the sheriffs fee, Cahill did not comply with the standards set forth in Lamp and subsequent cases. Because service was not properly achieved, the complaint was not effective and, accordingly, the action was not preserved. As a result, summary judgment was properly entered in the the Schultses’ favor.

Order affirmed.

      . The statute of limitations governing Cahill’s cause of action is two years. See 42 Pa.C.S.A. § 5524.

      . In response to this portion of Rockafellow's testimony, the trial court, in its opinion stated:
      Although he testified that the sheriff's department will call attorneys who are well known to the staff and request a check if one does not accompany the order for service form, this would appear to be more a matter of a fortuitous occurrence than a practice upon which a plaintiff's attorney should reasonably rely.

      . The time period for reissuance or reinstatement, pursuant to Pa. R.C.P. 401(b), is best explained in the following passage from Goodrich-Amram:
      Despite the language of Rule 401(b)(2) stating that a ... complaint [may be] reinstated at any time, ... a complaint may be reinstated only during a period of time which, measured from the date of [the] original ... filing of the complaint, or the date of a subsequent ... reinstatement thereof, is not longer than the period of time required by the applicable statute of limitations for the bringing of the action.
      Goodrich-Amram 2d § 401(b):6.

      . We note that the Lamp standard applies not only to an action initiated by a writ, but an action initiated by a complaint as well. See Sanders v. State Farm Mutual Automobile Insurance Co., 424 Pa.Super. 372, 622 A.2d 966 (1993); Pannill v. Seahorne, 278 Pa.Super. 562, 420 A.2d 684 (1980).

      . Rule 401. Time for Service. Reissuance, Reinstatement and Substitution of Original Process. Copies for Service
      (a) Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint.
      Pa.R.C.P. 401(a).
      "Unless a party applies to a court for an extension of time in which to serve original process, or unless the parties agree to waive the thirty-day time restriction, a writ or complaint will be 'dead' at the expiration of 30 days. However, if such a party has actively tried to attempt service, a writ or complaint may be reissued or reinstated and then served.” Goodrich-Amram 2d § 401(a):l; see Pa.R.C.P. 401(b). Because we conclude that Cahill has not met his good faith burden of effectuating service on the original complaint, we will not allow the reinstated complaint and subsequent service to provide Cahill with a second chance to properly institute his lawsuit. This is what Lamp and its progeny attempts to prevent. While there is case law which states that a law suit is not dead when there is a failure to serve a complaint within thirty days of its filing, see Fox v. Thompson, 377 Pa.Super. 39, 42-43, 546 A.2d 1146, 1148 (1988); Smith v. City of Philadelphia, 148 Pa.Commw. 84, 87-88, 609 A.2d 873, 875 (1992), there are no allegations and no evidence in those cases that the plaintiffs failed to meet their good faith effort pursuant to Lamp.

      . Common local practice in Bucks County regarding service has also been reflected in case law. In Allis Chalmers Corp. v. Insurance Co. of North America, 53 Bucks Co.L.Rep. 138 (1987), faced with an issue similar to that in the instant appeal, then-President Judge Isaac S. Garb wrote:
      In the present case, it was established by the Deputy Prothonotary that it has been the procedure in Bucks County for many years for the plaintiff to file the complaint in the Prothonotary's office and pay the filing fee therefor. It is then the obligation of the plaintiff to deliver copies of the complaint to the Sheriffs office for service, paying in advance thereof the costs of service.

        Id. at 140.
      Ultimately, the trial court held that the plaintiff was barred by the applicable statute of limitations, finding that failure of service was attributable to the plaintiff’s failure to follow the accepted procedures of Bucks County.

      . RULE 400. PERSON TO MAKE SERVICE.
      (a) Except as provided in subdivisions (b) and (c) and in Rule 400.1, original process shall be served within the Commonwealth only by the sheriff.
      Pa.R.C.P. 400(a).