author: OLSZEWSKI, Judge:

text:
    669 A.2d 1011
    In re ESTATE OF Frances C. GLOVER, a/k/a Frances C. Cloud, Deceased. Appeal of Rolfe E. GLOVER, III, Rolfe E. Glover, IV, Gordon Ford Glover, and Katherine Cheney Glover.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1995.
    Filed Jan. 11, 1996.

      Stephen R. Bolden, Philadelphia, for appellants.
    John A. Jaros, Paoli, for Martin Pierce, Joyce P. Kelly and Tammi P. Rudge, participating parties.
    Karen A. Fahrner, Philadelphia, for University of PA, participating party.
    Before McEWEN, CIRILLO and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Chester County dismissing appellants’ exceptions and rendering the court’s decree final. We affirm in part and reverse in part.

The instant action involves appellants’ continuing challenge to the probate of Frances C. Glover Cloud’s (Frankie) will. Frankie, who passed away on June 7, 1991, was survived by her husband (Edward Cloud), her brother (appellant Rolfe Glover, III), her brother’s children (appellants Rolfe Glover, TV, Katherine Cheney Glover and Gordon Glover), and her husband’s nieces and nephew (appellees Joyce Pierce Kelly, Tammy Pierce Rudge and Martin Pierce, Jr). At the time of her death, Frankie’s estate was valued at approximately eight million dollars.

On June 7, 1991, the Register of Wills of Chester County admitted Frankie’s Last Will and Testament, dated June 29, 1989, to probate. At the same time, the Register also granted Letters Testamentary to Lynn Hurley. On December 9, 1991, the validity of an Antenuptial Agreement, under which Cloud received two million dollars, was upheld pursuant to the stipulation of all parties. While the Antenuptial Agreement has never been questioned, the Glovers did appeal the probate of Frankie’s will on June 5, 1992. After a hearing, the trial court found that the subscribing witnesses had not actually witnessed Frankie sign the will. As such, the court vacated the Register’s Decree of Probate and remanded the case for a further hearing.

On December 2, 1992, the Glovers filed a Caveat with the Register, alleging that the 1989 will was invalid due to undue influence. The Register granted a nonsuit against the Glovers and once again admitted the will to probate and granted Letters of Testamentary to Hurley. The Glovers appealed to the Orphan’s Court Division of the Chester County Court of Common Pleas. On June 22, 1993, while the Glovers’ appeal was still pending, the court removed Hurley as Executrix and appointed Kevin Hollerin, Esq., and Wilmington Trust Company as Administrators Pro Tern. On November 2,1994, the Honorable Alexander Endy, who had presided over fifteen days of testimony conducted over a five-month span, issued his Opinion and Decree Nisi diámissing the Glovers’ appeal and upholding the validity of the will. Upon the filing of exceptions by the Glovers, the court en banc entered an order dated February 9, 1995 making the Decree Nisi final. This appeal follows.

On appeal, the Glovers raise the following issues for our review:

1. Whether the trial court erred in failing to find that the probated will was altered after its execution.
2. Whether the trial court erred in failing to find that the probated will was executed as a result of undue influence.
3. Whether the trial court erred in failing to find that the probated will was executed as a result of fraud.

Our standard of review in will contests is well settled. We are limited to:

determining whether the findings of fact approved by the court en banc rest on legally competent and sufficient evidence, and whether an error of law has been made or an abuse of discretion committed. It is not our task to try the case anew. The rule is particularly applicable “to findings of fact which are predicated upon the credibility of witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.”

In re Estate of Bankovich, 344 Pa.Super, 520, 522-23, 496 A.2d 1227, 1229 (1985) (citations omitted).

Initially, we note that the unscrupulous actions of Hurley lie at the heart of this will contest. Frankie met Hurley at a horse show in 1960 and the women fast became friends. Hurley began assisting Frankie by sorting mail and preparing checks for Frankie’s signature. Eventually, Hurley obtained signatory authority over some of Frankie’s bank accounts. Consequently, Hurley simply drew on these accounts without Frankie’s approval.

In the early 1980’s, Frankie employed Richard Ross as her financial advisor. After suffering a stroke in 1984, Frankie entrusted Ross and Hurley with all of her financial affairs. This was a mistake of exceptional proportion. The trial court found that, between 1987 and 1991, Ross and Hurley unscrupulously misappropriated $1,600,000 from Frankie. “The monies acquired by Ross and Hurley from Frankie were used to fund their various businesses, pay personal credit card accounts, mortgages, utility bills, tax liabilities, two Lincoln Towncars, college tuition and provide spending money.” Opinion, 11/2/94 at 6. Hurley also peculated funds to pay her divorce settlement and to buy and maintain a horse for her daughter.

In their first claim of error, the Glovers contend that Hurley altered Frankie’s will after it had been executed. We disagree. The record supports the following factual findings by the trial court: On June 21, 1989, Ross and Hurley employed the law firm of Eckell, Sparks, Monte, Auerbach and Moses (Eckell, Sparks) to draft a will for .Frankie. The will, as drafted by Eckell, Sparks, provided, in pertinent part, that each of the Pierces would receive $5,000, Richard Ross would receive $50,000, the University of Pennsylvania’s New Bolton Center would receive $1,000,000 and the residue of Frankie’s estate, including her farm, would go to the Glovers. On June 29, 1989, Ross retrieved the will from Eckell, Sparks, picked up Hurley and drove to Frankie’s home.

Frankie and Cloud, who had planned to immediately depart on a trip to Alaska in their motor home after the will signing, waited for Ross and Hurley in the company of Frankie’s old friend, Jayne Kirkpatrick. The motor home’s engine was running as Hurley and Ross arrived. Once inside the motor home, Hurley penned interlineations on the document. Frankie hurriedly reviewed the will, initialled the interlineations and signed her name at the end. Ross then took the document back to Eckell, Sparks, where it was placed in the firm’s vault for safe keeping. In May of 1990, Hurley employed Eckell, Sparks to draft Frankie’s Antenuptial Agreement. At that time, the law firm provided Hurley with the original and a copy of Frankie’s will. Hurley never returned the will and the trial court found that “[t]he document offered for probate on June 7, 1991, had apparently been in her possession from May 1990 to June 1991.” Opinion, 11/2/94 at 11.

The 1989 will was probated with the following interlineations intact: the Pierces, not the Glovers, were to receive the farm and Hurley was to receive $50,000. Instantly, the Glovers allege that these interlineations were not the ones that were initialled by Frankie in her motor home on June 29, 1989. Rather, the Glovers contend that Hurley made these alterations and forged Frankie’s initials onto the will after its execution.

A party attempting to prove that interlineations on a will have been forged must do so by clear and convincing evidence. In re Molden’s Estate, 387 Pa. 484, 496-98, 128 A.2d 568, 575 (1957). Moreover, “[w]hile it is true that an appellate court will not disturb the basic findings of a chancellor as affirmed by the court en banc when such findings depend upon the credibility of witnesses, the question of whether the evidence relied upon ... is legally sufficient to establish fraud is one of law and may be reviewed.” Id. (emphasis omitted). Instantly, the trial court found “the testimony of Jayne Kirkpatrick credible as to the fact that Frankie initialled the interlineations before executing the 1989 will.” Opinion, 11/2/94 at 19. We find no reason to disturb this decision.

Kirkpatrick, Frankie’s companion of twenty-five years, testified that as she sat in the motor home on the morning of June 29, 1989, Frankie told her that Ross and Hurley were coming over with a will for Frankie to execute. N.T., 12/14/93 at 68-69. While Kirkpatrick did not actually read the document, she testified that Frankie initialled interlineations on the will’s first and third pages, prior to signing the document. Id. at 70-73. Notably, a review of the record reveals that the interlineations presently in dispute are found on the first and third pages of the will. Moreover, Kirkpatrick also testified that the questioned initials were, in fact, Frankie’s. Id. at 72-73. This is significant because, after Frankie’s left side was rendered incapacitated by a stroke in 1984, Kirkpatrick taught Frankie how to write using her right hand. Id. at 73. Thus, we can assume that Kirkpatrick was intimately familiar with Frankie’s writing style in 1989. In light of Jayne Kirkpatrick’s testimony, we find that the trial court could properly find that Frankie’s initials on the 1989 will were genuine and placed upon the will prior to its execution. See In re Estate of Smith, 454 Pa. 534, 314 A.2d 21 (1974). Consequently, the Glovers’ first allegation of error must fail.

Next, the Glovers allege that the will was the product of undue influence. It is well established that, once a will has been probated, “a contestant who claims that there has been undue influence has the burden of proof.” Estate of Lakatosh, 441 Pa.Super. 133, 141, 656 A.2d 1378, 1383 (1995). Moreover, “[t]o do so, the contestant must prove by clear and convincing evidence that there was a confidential relationship, that the person enjoying such relationship received the bulk of the estate, and that the decedent’s intellect was weakened.” Estate of Reichel, 484 Pa. 610, 614, 400 A.2d 1268, 1270 (1979). “It is only after all three elements are satisfied that the burden shifts to the proponent of the will to show the absence of undue influence.” In re Estate of Simpson, 407 Pa.Super. 1, 9, 595 A.2d 94, 98, alloc. denied, 529 Pa. 622, 600 A.2d 538 (1991).

Instantly, the trial court found that the Glovers failed to establish that Frankie suffered from a weakened intellect. The evidence in the record supports this determination. While weakened intellect has never been expressly defined by a Pennsylvania appellate court, it is clear that the “weakened mental condition which must be shown does not rise to the level of testamentary incapacity.” In re Estate of Ziel, 467 Pa. 531, 542, 359 A.2d 728, 734 (1976). Moreover, “in cases where the appellate courts have found the requirement of weakened intellect satisfied, the testator/testatrix was in ill-health and suffering from confusion, forgetfulness and disorientation.” In re Estate of Koltowich, 311 Pa.Super. 517, 523, 457 A.2d 1302, 1305 (1983).

Instantly, there is no question that Frankie suffered a stroke in 1984 which left her confined to a wheelchair. Evidence of physical infirmities, however, is not enough, alone, to establish weakened intellect. See In re King’s Estate, 369 Pa. 523, 87 A.2d 469 (1952).

So long as the mind, like the captain of a stricken ship, is free to dictate direction and course, its decision will not be questioned in law even though the body be crippled with pain and the spirit awry with torment.

Id. at 530, 87 A.2d at 473.

The Glovers have failed to offer any evidence that Frankie suffered from spells of confusion, forgetfulness or disorientation. In fact, the trial court found that “[ajlmost every witness testified that Frankie was extremely strong-willed, lucid and sharp. There is absolutely no indication that she possessed a weakened intellect.” Opinion, 11/2/94 at 26. We find no reason to disturb this determination. See In re Bloch, 425 Pa.Super. 300, 304-306, 625 A.2d 57, 60 (1993) (no weakened intellect found where “decedent’s friends, neighbors and next-of-kin depicted her as a self-styled, independent person who was not easily swayed in her thinking on a subject about which she felt strongly”); Estate of Younger, 352 Pa.Super. 414, 418-20, 508 A.2d 327, 329, alloc. denied, 515 Pa. 603, 529 A.2d 1078 (1986) (no weakened intellect found where doctor testified that “[decedent], because of his tenacious and stubborn attributes, could not be influenced or persuaded to do anything he did not wish to do”). Consequently, the Glovers’ second allegation of error must also fail.

Lastly, the Glovers contend that Hurley fraudulently induced Frankie to execute the 1989 will by failing to disclose that $1,600,000 had been misappropriated from Frankie’s bank accounts. “Although undue influence is very much like fraud, the two are not identical.” 31 Standard Pennsylvania Procedure 2d § 148:60. “Theoretically, fraud is separate and distinct from undue influence, since, when the former is exercised the testator acts as a free agent but is deceived into acting by false data, and when the latter is exercised the mind of the testator is so overmastered that another will is substituted for his own.” P.L.E. Wills § 114.

Despite the above language taken from learned treatises, our research has indicated that scant little case law exists in our Commonwealth regarding fraud in the inducement of executing a will. In fact, the only published opinion within the last eighty years regarding this issue remains our Supreme Court’s decision in In re Paul’s Estate, 407 Pa. 30, 180 A.2d 254 (1962). In Paul, the contestants alleged that a beneficiary had misrepresented to the testatrix the value of certain stocks which she then bequeathed to him. In rejecting the contestants’ arguments, the court held that “there is no evidence that testatrix did not know the true value of this stock and there is no evidence that ... she would not have made this bequest had she known its true value.” Id. at 46, 180 A.2d at 262.

Thus, Paul requires that, before a contestant can establish that the execution of a will was fraudulently induced, the contestant must prove that: (1) the testatrix had no knowledge of the concealed or misstated fact, and (2) the testatrix would not have made the same bequest had she known the truth. Instantly, there is no question that Frankie was unaware of the fact that Hurley and Ross were misappropriating massive amounts of funds. Consequently, we turn our focus upon Paul’s second requirement.

At trial, the Glovers failed to offer any evidence that, had Frankie been aware of the misappropriation and its consequential reduction in her total wealth, she would not have bequeathed the farm to the Pierces or the $1,000,000 to the New Bolton Center. In fact, a review of the record reveals evidence to the contrary. Four witnesses, including Jayne Kirkpatrick, testified that Frankie had told them of her intention to leave the farm to the Pierces, rather than the Glovers. Additionally, Kirkpatrick also testified that when Frankie’s beloved horses would fall ill, she would take them to the New Bolton Clinic for treatment. As such, we cannot find that Frankie was fraudulently induced into making these bequests.

The bequest of $50,000 to Hurley, however, is another story. We agree with the trial that it would be “absurd” to suggest that, had Frankie been aware of Hurley’s massive misappropriation of funds, this gift would have stood. Hurley’s scoundrelly actions would have certainly served to eliminate her from any consideration in Frankie’s will. Despite this fact, the trial court found that it was constrained to allow the bequest to Hurley stand. We disagree.

In allowing Hurley’s bequest to survive, the trial court relied upon this Court’s memorandum opinion in In re Estate of Moir, 434 Pa.Super. 671, 640 A.2d 476 (1994). This was error. While we acknowledge the scarcity of case law on the subject matter, the law remains that unreported memorandum decisions of this Court have no precedential value. Boring v. Erie Ins. Group, 434 Pa.Super: 40, 641 A.2d 1189 (1994). Consequently, such decisions may not “be relied upon or cited by a Court or a party in any other action or proceeding____” Internal Operating Procedures of the Superior Court of Pennsylvania, Rule 444 B. See also Superior Court, Notice to the Bar, 598 A.2d 1324 (“These memorandum opinions are not to be considered as precedent and cannot be cited for any purpose.”) As such, we find that the trial court’s decision pertaining to the $50,000 bequest to Hurley must fall. Since this bequest was clearly procured through fraudulently inducing Frankie to execute the corresponding interlineation in her will, it must be stricken and the funds must fall into the residuary.

Order affirmed in part and reversed in part. Jurisdiction relinquished.

      . We note that, instantly, the Pierces have filed a motion to quash the Glovers' brief. While we agree that the brief, which contains 69 pages, does violate the page limitation of Pa.R.A.P. 2135, we do not believe that this fact alone should be fatal. Since the brief is not so defective as to preclude effective appellate review, we will not quash the instant appeal. Commonwealth v. McEachin, 371 Pa.Super. 188, 191, 537 A.2d 883, 885 n. 1, alloc. denied, 520 Pa. 603, 553 A.2d 965 (1988).

      . The New Bolton Center is a veterinary facility for horses and farm animals.

      . We note that the trial court found "a presumption exists that interlineations on a will were made prior to its execution.” Opinion, 11/2/94 at 17. This presumption, however, only exists when the alterations are in the testatrix's own handwriting. See Gongaware v. Donehoo, 255 Pa. 502, 510, 100 A. 264, 267 (1917). The Glovers argue that the presumption should not apply because it is undisputed that the interlineations on Frankie's 1989 will were penned by Hurley. We disagree. While Frankie may not have physically authored the interlineations, Kirkpatrick's testimony allowed the trial court to find that the initials immediately preceding the changes were genuine. We find no valid reason to treat interlineations initialled in the testatrix’s handwriting any different ■ from interlineations completed in the testatrix’s handwriting.
      Further, Kirkpatrick's testimony was alone sufficient, without the above presumption, to allow the trial court to find that the interlineations were placed upon the will prior to its execution.

      . Despite their failure to establish a weakened intellect, the Glovers contend that "even if a testatrix does not have a weakened intellect, undue influence can still be established with respect to her testamentary dispositions!;] ... the burden is upon those asserting undue influence to prove it by clear and convincing evidence.” Appellants’ brief at 61. We disagree. Once the will contestant fails to prove any one of the three elements required to establish undue influence, his/her claim must necessarily fail. Bloch, 425 Pa.Super. at 305-308, 625 A.2d at 60-61.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    669 A.2d 1017
    Joann M. ROBOSKI, v. Lloyd FINK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 25, 1995.
    Filed Jan. 12, 1996.

      John H. Pavlock, Port Allegeny, for appellant.
    Erik A. Ross, Assistant District Attorney, Mt. Jewett, for appellee.
    Before DEL SOLE, FORD ELLIOTT and OLSZEWSKI, JJ.
   DEL SOLE, Judge:

This is an appeal from an Order requiring that Appellant undergo genetic blood testing to determine paternity. Appellant argues the trial court erred in requiring that he undergo the testing because Appellee failed to overcome the presumption the child in question was a child of the marriage between Appellee and her former husband, and that he should not be compelled to take the test because he had already undergone an HLA blood test for the same purpose. We disagree. We have reviewed the record and are satisfied that the trial court correctly determined that the presumption was rebutted and this test would be allowed.

Appellant also claims that the action is barred by the doctrine of Laches because Appellee did not institute the paternity suit until four years after the child’s birth. We disagree. The doctrine of Laches is an equitable doctrine, while support is an obligation at law. Therefore Laches as a defense is not available in paternity actions. Rather, 23 Pa.C.S.A. § 4343 is controlling. This section applies in cases, such as the one before us, where the child is born during a marriage but paternity is in dispute. If it is established that the child is not a child of the marriage, then it meets the § 4343(a) definition “of a child born out of wedlock,” and § 4343(b) — Limitation of actions, applies.

Order affirmed.

      . An Order directing that a party undergo blood testing for the purpose of determining paternity is interlocutory, but under Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993) it is appealable.


author: OLSZEWSKI, Judge. JOHNSON, Judge,

text:
    670 A.2d 147
    COMMONWEALTH of Pennsylvania v. Bill BRONAUGH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 14, 1995.
    Filed Nov. 28, 1995.
    Reargument Denied Feb. 12,1996.

      Robert A. Crisanti, Pittsburgh, for appellant.
    Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON, and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge.

This appeal is from an order of the Court of Common Pleas of Allegheny County entered February 27, 1995, which dismissed appellant’s Post Conviction Relief Act (PCRA) petition without a hearing pursuant to Pa.R.Crim.P. 1507(a). We vacate the order and remand for an evidentiary hearing.

On October 21, 1993, appellant, Bill Bronaugh, pleaded guilty to one count each of aggravated assault and terroristic threats. Then, on December 14, 1993, appellant was sentenced to an aggregate term of not less than eight and one-half (8$) and not more than twenty (20) years imprisonment. Appellant alleged in his pro se PCRA petition that trial counsel unlawfully induced his guilty plea by indicating that his sentence would be shorter than that actually imposed. Further, appellant alleged that he requested trial counsel to file a direct appeal to this Court for the purposes of challenging the propriety of his sentence. No direct appeal was ever filed, however.

Consequently, appellant alleged in his PCRA petition that he was denied effective assistance of counsel for the aforementioned reasons. In dismissing appellant’s petition without a hearing, the lower court held that a hearing was not necessary to determine whether or not appellant instructed counsel to file a direct appeal. Appellant could not establish that there was a “substantial question” that the sentence imposed was inappropriate, Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), nor could he challenge the discretionary aspect of the sentencing under the PCRA. Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990). Hence, the court determined that a hearing was not necessary because the issues underlying the ineffective assistance of counsel claim were meritless. See Trial Court Opinion at 4-6.

This case presents the issue whether a court may dismiss a PCRA petition without first granting a hearing to determine whether an appellant’s constitutional right to a direct appeal was violated by counsel’s failure to file such appeal when requested, where the appellant has never had a direct appeal and claims ineffective assistance of prior counsel for not challenging the propriety of sentencing, where the appellant allegedly directed prior counsel to file such an appeal. We hold that an evidentiary hearing is required in this situation, and if it is found that appellant did, in fact, request prior counsel to file a direct appeal and did.not waive his constitutional right to such appeal, appellant is entitled to a direct appeal nunc pro tunc.

In Pennsylvania, an accused has an absolute right to a direct appeal. Pa. Const., art. V, § 9. Commonwealth v. Wilkerson, 490 Pa. 296, 298, 416 A.2d 477, 479 (1980). Counsel must protect this absolute right “unless the accused himself effectively waives the right.” Id. (citing Commonwealth v. Perry, 464 Pa. 272, 274, 346 A.2d 554, 555 (1975)). Further, counsel is required to protect this appellate right even in circumstances where the appeal is “totally without merit.” Id. It follows, that counsel, however, is not required to advance frivolous arguments in an appeal since counsel may protect his client’s appellate rights via the procedure outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by advising the court and requesting permission to withdraw. Wilkerson, 490 Pa. at 298, 416 A.2d at 479. See Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968); Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

In Wilkerson, our Supreme Court held that the Post Conviction Hearing Act (PCHA) court erred in dismissing the petitioner’s PCHA petition without a hearing and in concluding that counsel could not be ineffective for failing to file an appeal if no issue of arguable merit was found in the petition. Willcerson, supra. The petitioner alleged that he had taken steps to perfect an appeal by himself and also requested counsel to file a direct appeal. Such an appeal was never filed, nor was an Anders brief filed by counsel. As such, the court held that the facts alleged, if proven, would warrant relief based upon the ineffective assistance of prior counsel since an accused has an absolute right to direct appeal. Id. Consequently, the PCHA court should have held an evidentiary hearing to afford the petitioner an opportunity to prove whether or not he had directed counsel to file an appeal. Id.

In addition to the accused’s absolute right to a direct appeal of his sentence, the accused has the right to assistance of court-appointed counsel to pursue such appeal, if indigent. Commonwealth v. Waring, 366 Pa.Super. 144, 145, 530 A.2d 833, 934 (1987). Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). While an accused possesses such rights, he also has the ability to waive his right to counsel and to an appeal. Waring, 366 Pa.Super. at 145, 530 A.2d at 934. The effective waiver of such a right must be an “intentional relinquishment or abandonment of a known right or privilege.” Id. (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938)); Commonwealth v. Norman, 447 Pa. 217, 221, 285 A.2d 523, 526 (1971). Further, no waiver can be presumed where the record is silent. Waring, 366 Pa.Super. at 145, 530 A.2d at 934 (citing Norman, supra, at 221, 285 A.2d at 526); Camley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). The burden of proving a waiver of a defendant’s appellate rights is on the Commonwealth. Waring, 366 Pa.Super. at 147, 530 A.2d at 935.

In short, a. criminal defendant has an absolute right to directly appeal his sentence, regardless of the merits of his appeal. When he is deprived of such right by counsel’s failure to file an appeal after being directed to do so, ineffective assistance results in a constitutional violation, assuming there is no effective waiver of appeal. In the PCRA cases, the rule is that where the PCRA petitioner has alleged ineffectiveness of his trial counsel for failure to file a direct appeal, the PCRA court is precluded from reaching the merits of other issues raised in the PCRA petition once the court determines that the petitioner has been deprived of his right to direct appeal. At that point, an appeal nunc pro tunc is the proper remedy. Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982). See also Commonwealth v. Hoyman, 385 Pa.Super. 439, 442, 561 A.2d 756, 758 (1989) (holding that Miranda applies equally to proceedings under the PCRA). If it has not been determined whether or not prior counsel’s actions deprived a petitioner of his constitutional right to a direct appeal, a hearing shall be held to determine whether or not such right was deprived. Commonwealth v. Hickman, 434 Pa.Super. 633, 644 A.2d 787 (1994).

In the instant case, appellant had an absolute constitutional right to a direct appeal of his sentence. Wilkerson, 490 Pa. at 298, 416 A.2d at 479; Pa. Const., art. V, § 9. Since he alleged that he requested trial counsel to appeal his sentence, the PCRA court erred in dismissing the PCRA petition without a hearing by ruling on the merits of the issues underlying the ineffective assistance of counsel claim, i.e., the sentencing of appellant. Hickman, supra. If appellant’s allegations are true and no waiver of his constitutional right to appeal was effected, he would then be entitled to a direct appeal nunc pro tunc. Id.; Miranda, supra. Since appellant’s allegations may not be reviewed via an examination of the record, an evidentiary hearing by the PCRA court is in order. Pa. R.Crim.P. 1508(a).

In Hickman, appellant plead guilty to robbery, possession of a prohibited weapon, forgery, attempted escape, possession of implements of escape and criminal conspiracy, and was sentenced by the court. No direct appeal of the judgment of sentence was taken. In his PCRA petition, appellant alleged that (1) counsel unlawfully induced his guilty plea by indicating that the sentence would be lighter than that imposed, and (2) he directed counsel to file a motion to modify the sentence and a direct appeal. The lower court dismissed appellant’s PCRA petition without a hearing since all issues relating to the discretionary aspects of a sentence are not cognizable claims under the PCRA. Hickman, 434 Pa.Super. at 634, 644 A.2d at 788. We held that the PCRA court erred in dismissing the petition without a hearing and remanded for a hearing to determine whether prior counsel’s actions deprived appellant of his constitutional right to a direct appeal since appellant alleged that his right to a direct appeal was violated by counsel’s failure to act as requested. Id. The key issue was “not the propriety of the appellant’s sentence,” but rather whether or not appellant’s constitutional right to a direct appeal was violated. Id. Accordingly, if it was determined on remand that appellant’s constitutional right of appeal was violated, we stated that appellant should be given the right to appeal nunc pro tunc regardless of the merit of his other claims. Id.

Consequently, the instant case is factually and procedurally similar to Hickman since the appellant in each case had no direct appeal and alleged in his PCRA petition that he requested prior counsel to file a direct appeal on his sentence. Thus, pursuant to our decision in Hickman, a hearing is required to determine whether or not appellant’s constitutional right to a direct appeal was violated regardless of the other issues raised in the PCRA petition, and if so, appellant is entitled to a direct appeal nunc pro tunc. See also Miranda, supra; Hoyman, supra.

Another factually and procedurally similar case seems at first to hold to the contrary, i.e., that a court can dismiss a PCRA petition in this situation when the issues underlying the ineffectiveness claim for not filing a direct appeal are without merit. Upon closer scrutiny, however, such case can be distinguished from Hickman and the instant case. In Commonwealth v. Lewis, 430 Pa.Super. 336, 634 A.2d 633 (1993), appellant pled guilty to two counts of aggravated assault and was sentenced by the court. Thereafter, no post-trial motions or direct appeals were filed. Then, appellant filed a PCRA petition alleging that (1) her guilty pleas were not voluntary, (2) counsel was ineffective for failing to adequately advise and inform her of the consequences of entering guilty pleas, and (3) counsel was ineffective for failing to file motions to withdraw her guilty pleas and for reconsideration of sentence and a direct appeal as requested by appellant’s mother and husband. Lewis, 430 Pa.Super. at 339, 634 A.2d at 635. The Court affirmed the dismissal of the petition by the PCRA court without a hearing. Id.

First, the Court analyzed the record and determined that the guilty pleas were entered voluntarily, and accordingly found the contention regarding the voluntariness of the plea to be meritless. Lewis, 430 Pa.Super. at 341, 634 A.2d at 636. Next, the Court examined the various claims concerning the alleged ineffectiveness of counsel under the following three-pronged test:

The threshold inquiry for evaluating claims of ineffective assistance is the issue, argument or tactic which counsel has forgone is of arguable merit. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). If the argument is of merit, the next inquiry is whether counsel’s chosen course of action was designed to effectuate his client’s best interests. Upon proof that counsel had some reasonable basis for pursuing his chosen course, the inquiry ends and counsel is presumed effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). If a reasonable basis is lacking, the defendant must demonstrate that counsel’s actions worked to his prejudice. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Id. at 341, 634 A.2d at 636. According to the threshold prong of this test, the Court analyzed the merits underlying each of the ineffectiveness claims. The Court held that the record contradicted the allegation that appellant was not informed of the nature and effect of her guilty pleas. Id. But, for analysis of the instant case, the important issue was appellant’s contention that counsel should have filed a direct appeal. Accordingly, the Court analyzed the issues upon which appellant would have pursued in a direct appeal. Since the Court found that the claims regarding the guilty plea and sentencing issues had no merit, any direct appeal to the Superior Court would also have been meritless. Id. at 343, 634 A.2d at 637. As such, the Court affirmed the PCRA court’s order denying PCRA relief without a hearing. Id.

We fail to follow the result obtained in Lewis and choose to follow Hickman and its progeny because, in Lewis, it was possible for the Court to examine the merits underlying the claim of ineffective assistance of counsel on both a PCRA claim and a direct appeal. In the instant case and Hickman, however, the Court would have different standards in evaluating a PCRA claim and a direct appeal of the underlying issue. In Lewis, the court could review the issues regarding the guilty pleas and the sentencing presented in a direct appeal as well as in a PCRA petition. On the other hand, in the instant case and Hickman, we note that the only issue alleged underlying the ineffectiveness claim deals with the propriety of appellant’s sentence. On direct appeal, one can challenge the discretionary aspects of sentencing pursuant to 42 Pa.C.S. § 9781(a), (b):

Tuladziecki, 513 Pa. at 510, 522 A.2d at 18. On the other hand, in a PCRA petition, the discretionary aspects of sentencing may not be reviewed and the only issue subject to PCRA review is whether there was an “imposition of a sentence greater than the lawful maximum.” Wolfe, 398 Pa.Super. at 97, 580 A.2d at 859. 42 Pa.C.S.A. § 9543(a)(2)(vii).

(a) Right to appeal. — The defendant or the Commonwealth may appeal as of right the legality of the sentence.
(b) Allowance of appeal. — The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

Therefore, since we could not review any of appellant’s claims regarding the discretionary aspects of sentencing in a PCRA petition review, but could review such aspects in a direct appeal, it is necessary to determine how appellant may properly proceed. If appellant did not waive his right to appeal and requested prior counsel to file a direct appeal but counsel failed to follow such request, he was deprived of his constitutional right to a direct appeal and is entitled to such appeal nunc pro tunc. Hickman, supra. Miranda, supra. Hence, on this appeal, appellant can challenge the discretionary aspects of sentencing. If appellant’s constitutional right to a direct appeal was not violated (i.e., no waiver and no request made to prior counsel to file such appeal), the PCRA petition could be denied without a hearing because challenges to the discretionary aspects of sentencing underlying an ineffectiveness claim are not cognizable under the PCRA. Wolfe, 398 Pa.Super. at 99, 580 A.2d at 860. Therefore, the key issue is whether or not appellant’s constitutional right to a direct appeal has been violated, and such issue has never been decided by the court.

Based on the aforementioned reasons, we vacate the order dismissing appellant’s PCRA petition and remand this case for an evidentiary hearing on the issue of whether appellant’s constitutional right to a direct appeal was waived or violated by the ineffectiveness of prior counsel in allegedly failing to file a direct appeal as requested by appellant. If it is determined that such right was violated and not effectively waived, appellant is entitled to pursue a direct appeal to this Court nunc pro tunc.

Order VACATED. Case REMANDED for proceedings consistent with this memorandum. Jurisdiction relinquished.

Dissenting Opinion by JOHNSON, J.

JOHNSON, Judge,

dissenting:

My colleagues conclude that Bronaugh is entitled to an evidentiary hearing to determine whether he instructed counsel to file a direct appeal. However, I find that Bronaugh did not properly claim in either his pro se PCRA petition or in the amended petition filed by new counsel that he instructed trial counsel to file a direct appeal. Accordingly, I find no need to remand the case for an evidentiary hearing on this matter. Thus, I must respectfully dissent.

It has been well established that counsel is under no obligation to file, nor can counsel be deemed ineffective for failing to file, a direct appeal unless petitioner specifically instructed counsel to take such action. Commonwealth v. Dockins, 324 Pa.Super. 305, 471 A.2d 851 (1984). Moreover, petitioner must specifically plead and present evidence to this Court that he in fact requested counsel to pursue a direct appeal within the requisite time period and counsel failed to do so. Commonwealth v. Velasquez, 387 Pa.Super. 238, 243, 563 A.2d 1273, 1275 (1989), appeal denied, 525 Pa. 663, 583 A.2d 793 (1990).

Bronaugh did not allege, in either his pro se PCRA petition or amended petition filed by new counsel, that he had instructed trial counsel to file a direct appeal within the requisite time period. In the amended PCRA petition, submitted by counsel on January 5,1995, Bronaugh alleged:

9. ... that he is further eligible for relief because he was denied his constitutional right to effective assistance of counsel who failed to file a direct appeal to the Superior Court of Pennsylvania as desired by [Bronaugh] for the purpose of challenging the propriety of his sentence. See, Commonwealth v. Hickman, 434 Pa.Super. 633, 644 A.2d 787 (1994).

The petition. contains no averment that he, at any time, instructed counsel to pursue a direct appeal. On February 24, 1995 counsel filed a supplemental petition, and requested, in a footnote, that Bronaugh be “permitted to amend his petition so as to indicate that he ‘directed’ counsel to file a direct appeal”. However, an amended PCRA petition was never filed and the PCRA court never granted this footnoted request. On February 27, 1995 the PCRA court issued an order dismissing Bronaugh’s PCRA petition.

The pleadings filed and reviewed by the trial court at the time of the entry of the order denying PCRA relief did not contain the required allegation that Bronaugh requested an appeal and that trial counsel ignored or failed to respond to that request. The trial court did not err in denying PCRA relief on that record. This appeal has come to us on submitted briefs, without benefit of oral argument. I would affirm the order dismissing the PCRA petition without a hearing.

Hence, this dissent.

      . 42 Pa.C.S.A. § 9541 et seq.

      . 18 Pa.C.S.A. § 2701(a)(1).

      . 18 Pa.C.S.A. § 2706.

      . Appellant’s counseled PCRA petition states:
      9. Your Petitioner avers that he is further eligible for relief because he was denied his constitutional right to effective assistance of counsel who failed to file a direct appeal to the Superior Court of Pennsylvania as desired by your Petitioner for purposes of challenging the propriety of his sentence ...
      Appellant's Amended Motion for Post Conviction Collateral Relief dated January 4, 1995 at 2.

      . The PCHA, 42 Pa.C.S.A. § 9541 et seq. has been modified in part, repealed in part and renamed the PCRA by the Act of April 13, 1988, No. 47, § 3-4, 1988 Pa.Legis.Srv. 227, 229-232. Commonwealth v. Lawson, 519 Pa. 504, 506 n. 1, 549 A.2d 107, 108 n. 1 (1988).

      . We note only that prior counsel did not file an Anders brief as it is not included in the record.

      . The Commonwealth has the burden of proving waiver of appellant’s right to direct appeal on remand. Waring, 366 Pa.Super. at 147, 530 A.2d at 935.


author: TAMILIA, Judge: JOHNSON, Judge,

text:
    670 A.2d 153
    COMMONWEALTH of Pennsylvania v. James Michael FOWLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1995.
    Filed Jan. 11, 1996.

      Samuel C. Stretton, West Chester, for appellant.
    Kenneth A. Osokow, Assistant District Attorney, Williams-port, for Commonwealth, appellee.
    Before ROWLEY, P.J., CAVANAUGH, BECK, TAMILIA, KELLY, JOHNSON, HUDOCK, FORD ELLIOTT and SAYLOR, JJ.

       This decision was reached prior to former President Judge Rowley’s retirement from this court.

   TAMILIA, Judge:

James Michael Fowler appeals from the Order entered June 10, 1994, denying his petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. According to the record, on October 31, 1990, the police sent a confidential informant to purchase marijuana from appellant at his residence. The informant, wearing a consensual tape recorder, entered appellant’s home and made a purchase of marijuana. The conversation between the two during the sale of marijuana from appellant to the informant was recorded and later transmitted to the monitoring agents. While the district attorney for Lycoming County had authorized the interception, there was no prior court authorization for the use of the recording device. Following a jury trial held on August 21-23, 1991, appellant was found guilty of possession with intent to deliver, delivery of, and possession of marijuana and subsequently sentenced to eight (8) to twenty-three (23) months’ imprisonment. Appellant thereafter filed a direct appeal to this Court which affirmed the judgment of sentence on December 17, 1992. Commonwealth v. Fowler, 428 Pa.Super. 614, 626 A.2d 644 (1992).

On January 7, 1994, after appellant retained new counsel, a petition under the PCRA was filed with the trial court. Arguments were heard on April 13, 1994 and the petition subsequently was denied without an evidentiary hearing. A timely appeal was filed to this Court raising four ineffectiveness of trial counsel claims.

The PCRA is very specific in setting forth requirements a petitioner must meet in order to be eligible for relief. To be entitled to relief, appellant must show the conviction resulted from “[ijneffeetive 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)(ii); Commonwealth v. Garnett, 418 Pa.Super. 58, 613 A.2d 569 (1992), appeal denied, 533 Pa. 630, 621 A.2d 577 (1993). This Court has interpreted this to mean that such a claim must raise an issue of whether an innocent individual has been convicted. Commonwealth v. Grier, 410 Pa.Super. 284, 599 A.2d 993 (1991), appeal denied, 530 Pa. 639, 607 A.2d 250 (1992),

Appellant’s first argument contends a critical piece of the Commonwealth’s evidence was the recording on the informant’s body used in appellant’s home which subsequently was played to the jury and referred to by the Commonwealth during the course of the trial. Appellant argues the use of this body wire by the Commonwealth in his home was in direct violation of the law established in Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987), alloc. granted, 520 Pa. 596, 552 A.2d 251 (1988), in which this Court, sitting en banc, held, inter alia, that the surreptitious recording of a person’s conversation in his home violates Article I, Section 8, of our Constitution as an unreasonable search and seizure. Schaeffer is very similar factually to the instant case in which the police' sent a confidential informant into the house of the defendant to make a controlled buy of marijuana. Accordingly, appellant contends it was controlling at the time of trial.

At the outset, we note that trial counsel is presumed to have been effective and that the burden is on the defendant to prove otherwise. To establish counsel’s ineffectiveness, the defendant must prove that 1) his underlying claim has arguable merit, 2) the course chosen by counsel could have had no reasonable basis designed to serve the defendant’s interest, and 3) the defendant was prejudiced by counsel’s act or omission.

Commonwealth v. Ferrari, 406 Pa.Super. 12, 16, 593 A.2d 846, 847 (1991) (citations omitted).

After a review of the record and analysis of relevant case law existing at the time of trial, we find appellant’s first argument to be without merit. At the time of trial, August 21-23, 1991, it appeared the relevant case law in Pennsylvania pertaining to surreptitious recordings in one’s home was settled. The trial court, in its Rule 1925 Opinion, relied upon Commonwealth v. Brion, 381 Pa.Super, 83, 552 A.2d 1105 (1989), alloc. granted, 534 Pa. 652, 627 A.2d 730 (1993), in which a panel of this Court, although not overruling expressly our en banc decision in Schaeffer, determined the broad sweeping language of Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), clearly overruled Schaeffer. Specifically, the panel held the broad rule in Blystone that warrantless participant monitoring does not violate a defendant’s rights guaranteed by the Pennsylvania Constitution cannot be limited by the requirement in Schaeffer pertaining to monitoring a defendant’s home. Accordingly, since at the time of trial the Brion Court had held Blystone overruled Schaeffer sub silentio, we find the trial court correctly determined trial counsel was not ineffective for failing to file a motion to suppress the evidence.

The Pennsylvania Supreme Court, in an Opinion filed December 30, 1994, reversed this Court’s holding in Brion and, following Schaeffer, held that Article 1, Section 8, of the Pennsylvania Constitution, precludes the police from sending a confidential informant into the home of an individual to electronically record his conversations and transmit them to the police. Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994). Specifically, the Supreme Court stated an individual reasonably can expect that his right to privacy will not be violated in his home through the use of any electronic surveillance. We find, however, this new rule, which is an amplification on the exclusionary rule, does not have retroactive application. Commonwealth v. Metis, 447 Pa.Super. 275, 669 A.2d 346 (1995). (The Metis Court held the decision announced in Brion pertaining to electronically interrupting conversations is to be applied prospectively since Commonwealth law enforcement officers justifiably relied on the state of the law as it then existed when they obtained consent of informant to intercept conversations with appellant, the Supreme Court’s decision established a “clear break” with established law, the decision in Brion clearly was not foreshadowed and the administrative burden associated with retroactively applying Brion would be overwhelming. Accordingly, trial counsel now cannot be held ineffective for relying on Brion and Blystone and failing to foresee how our Supreme Court ultimately, would rule on this evidentiary issue.

Secondly, appellant argues trial counsel was ineffective for not objecting to the admissibility of the tape recording since it was inaudible in many places, of poor quality, of questionable accuracy and it was not possible to accurately identify the speakers.

Trial counsel inherently has broad discretion to determine the course of defense tactics employed. Commonwealth v. Mizell, 493 Pa. 161, 425 A.2d 424 (1981). The record reveals defense counsel made a tactical decision not to object to the tapes, as it was their defense the voice on the tape at pertinent times was not that of appellant. In light of this defense, it was a reasonable strategy to allow the tapes to be played for the jury. See Commonwealth v. Carpenter, 533 Pa. 40, 617 A.2d 1263 (1992). Appellant is not entitled to relief simply because the strategy was unsuccessful. Commonwealth v. Davis, 381 Pa.Super. 483, 495-97, 554 A.2d 104, 111 (1989).

Appellant next argues trial counsel was ineffective for not objecting to references of unrelated criminal activity of appellant, namely other alleged use and sales of drugs by appellant. Appellant cites to various portions of the trial transcript in support of his argument where counsel did not object to these references, move for a mistrial, or request a limiting instruction, thus permitting the jury to hear appellant was in the business of selling drugs on unrelated occasions.

A review of the various portions of testimony cited by appellant reveals nothing more than vague references to locations for purchasing marijuana, the developing relationship between the confidential informant and appellant and how they came to meet on the particular day in question. We do not find this evidence to be prejudicial or inadmissible. Secondly, any references to appellant’s familiarity and use of marijuana simply appear to follow his defense tactics that he was a user but not a seller. In fact, appellant testified, “I am a user, I am a smoker, I am not a dealer.” (N.T., 8/23/91, p. 189.) Accordingly, we find trial counsel’s actions consistent with the course of defense tactics employed. Mizell, supra. Again, appellant is not entitled to relief simply because the strategy was unsuccessful. Davis, supra.

Finally, appellant argues trial counsel was ineffective for failing to object to the judge’s jury instruction on the accomplice charge involving a corrupt source. Specifically, appellant contends a fair reading of the charge states if the jury believes the accomplice beyond a reasonable doubt then appellant is guilty. Appellant argues this is an improper instruction which invades the jury’s fact finding process.

When reviewing a jury instruction to determine whether an error has been committed by a trial court, the charge must be considered as a whole and not in isolated excerpts. Commonwealth v. Harper, 419 Pa.Super. 1, 614 A.2d 1180 (1992). A jury instruction will be upheld so long as it “sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision.” Commonwealth v. Prosdocimo, 525 Pa. 147, 153-55, 578 A.2d 1273, 1276 (1990). A review of the entire jury charge demonstrates that taken as a whole, the jury was given an accurate appraisal of the legal principles relating to the testimony of an accomplice. Moreover, a review of the record finds the trial judge limited the instruction to the July 11,1990 transaction, of which appellant was acquitted. Accordingly, we find this argument to be without merit.

Finding each of appellant’s ineffectiveness claims to be without merit we affirm the Order of June 10, 1994 denying his PCRA petition.

Order affirmed.

Concurring Opinion by JOHNSON, J., joined by FORD ELLIOTT, J.

JOHNSON, Judge,

concurring:

I agree with my distinguished colleagues that each of James Michael Fowler’s ineffectiveness claims are without merit. However, I am unable to join with so much of the Majority Opinion as discusses the prospective application of Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), as later analyzed in Commonwealth v. Metis, 447 Pa.Super. 275, 669 A.2d 346 (1995).

In examining a claim of ineffectiveness, we cannot impose upon trial counsel the qualities of a seer and fault him for not foreseeing a change in the law. Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977). Instead, “we examine counsel’s stewardship under the standards as they existed at the time of his action.” Id. “[CJounsel will not be deemed ineffective for failing to predict future developments in the law.” Id. As the Majority points out, at the time of Fowler’s trial, relevant case law pertaining to surreptitious recordings in one’s home was settled. Neither the fact that the Pennsylvania Supreme Court reversed this Court’s holding in Brion some three years after Fowler’s trial, nor this Court’s consideration of the retroactive effect of that decision, have any bearing on counsel’s stewardship in 1991 during Fowler’s trial. Triplett, supra.

Further, I believe that this Court is without authority to engage in a retroactivity analysis of a decision declared by the Supreme Court of Pennsylvania where that effect can be determined under rules clearly laid down by the Supreme Court. See Metis, supra (Concurring and Dissenting Opinion, Johnson, J.). I am unable, therefore, to join my esteemed colleagues in their declaration that the rule set forth by our supreme court in Brian, supra, does not have retroactive application.

FORD ELLIOTT, J„ joins.

      . The Supreme Court’s recent decision in Commonwealth v. Schaeffer, 539 Pa. 272, 652 A.2d 294 (1994), had not been reached at the time appellant's brief was prepared.

      . The Supreme Court’s subsequent decision in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), is discussed infra.


author: I-IUDOCK, Judge:

text:
    670 A.2d 157
    Danean SEASOR and Latesha Coney, Janeice Coney and Emmie Coney, Appellees, v. Bessie Lee COVINGTON and Liberty Mutual Insurance Company, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1995.
    Filed Jan. 16, 1996.

      Robert J. McDade, Philadelphia, for appellants.
    James D. Rosen, Philadelphia, for appellees.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   I-IUDOCK, Judge:

This is an appeal from the order of court which denied Appellant Bessie Lee Covington’s motion to mark the judgment against her satisfied. We affirm but remand for the limited purpose of directing the trial court to apprise Appellant Bessie Lee Covington of her right to and need for independent counsel.

The facts may be summarized as follows: On August 5, 1991, Bessie Lee Covington (Appellant Covington) was driving a rented van when she lost control of the vehicle, causing it to turn over. All of the nineteen passengers in the van were injured. The van was insured by Liberty Mutual Insurance Company (Appellant Liberty Mutual) while Appellant Covington’s personal vehicle was insured by Erie Insurance Company (Erie Insurance). Subsequent to the accident, the insurance companies commenced negotiations to the extent of their policy limits. The claims of all injured passengers, except Appellees, were settled with both Appellant Liberty Mutual and Erie Insurance.

Upon learning of the policy limit settlements, Appellees immediately contacted both insurance companies. Erie Insurance, in turn, agreed to pay Appellees a sum of money equivalent to that received by the other claimants. In exchange for this payment, Appellees executed a special release that acted as a full and final release with regard to Erie Insurance and a partial release with regard to Appellant Covington. Appellant Liberty Mutual, on the other hand, refused to settle Appellees’ claims.

In due course, Appellees sued Appellant Covington for negligence and succeeded in obtaining a judgment against her in the amount of $84,000.00. Following the jury verdict, the award was entered against Appellant Covington in the judgment index of Philadelphia County. Appellees then sought an assignment of rights from Appellant Covington so that they could institute proceedings against Appellant Liberty Mutual to recover the judgment. Appellees have stipulated that if Appellant Covington did in fact agree to assign her rights, the judgment against her would be marked satisfied. However, counsel for Appellant Covington (who is also counsel for Appellant Liberty Mutual) refused to grant the assignment. Thereafter, Appellees filed a separate bad faith action against Appellant Liberty Mutual in federal court.

After the judgment was indexed, Appellant Covington filed a petition to mark the judgment satisfied on the ground that the special release absolved her of personal liability and acted as full satisfaction of the judgment against her. The trial court, finding that the release only partially discharged Appellant Covington, denied her motion. Thus, the sole issue before us is whether the partial release as to Appellant Covington’s personal liability constitutes satisfaction of the judgment such that the judgment must be marked satisfied. We find that it does not.

It is well settled that the effect of a release must be determined from the ordinary meaning of its language. Brosius v. Lewisburg Craft Fair, 383 Pa.Super. 454, 455-56, 557 A.2d 27, 28 (1989). When construing agreements such as releases that involve clear and unambiguous terms, the court need only examine the writing itself to give effect to the parties’ understanding. McMahon v. McMahon, 417 Pa.Super. 592, 599-601, 612 A.2d 1360, 1364 (1992).

Our reading of the special release indicates that Appellees intended to partially release Appellant Covington from liability, subject to any actionable rights she had for indemnification against Appellant Liberty Mutual. The agreement clearly and unambiguously states that it is a “partial release subject to [recovery of funds available from Appellant Liberty Mutual] with regard to [Appellant Covington].” This language does not render Appellant Covington personally hable for the entire judgment, nor does it just release her for the amount paid by Erie Insurance. To the contrary, the release states that Appellees “agree not to collect, or attempt to collect any money, damages or assets from [Appellant Covington], individually or from her representatives, assigns, heirs or agents.” Thus, the terms of the agreement clearly indicate that Appellees partially released Appellant Covington from personal liability in exchange for the right to pursue any cause of action she may have against Appellant Liberty Mutual.

In light of the above, we turn to the law governing satisfaction of a judgment. A judgment creditor who has received satisfaction of any judgment must enter satisfaction on the outstanding public record, which will effectively forever discharge the judgment. See 42 Pa.C.S.A. § 8104(a). The term satisfaction, as used in this statute, refers to a situation in which a creditor has received full payment for the underlying debt obligation. Key Savings and Loan Association v. Louis John, Inc., 379 Pa.Super. 226, 234-36, 549 A.2d 988, 993 (1988); Busy Beaver Building Centers, Inc. v. Tueche, 295 Pa.Super. 504, 510-11, 442 A.2d 252, 255 (1981). Moreover, satisfaction of a judgment ordinarily extinguishes the judgment and implies or manifests an expression of finality as to all questions of liability and damages. Linde Enterprises, Inc. v. Hazelton City Authority, 412 Pa.Super. 67, 77-79, 602 A.2d 897, 902 (1992), alloc. den., 533 Pa. 601, 617 A.2d 1275; see also Sanctis v. Checco, 195 Pa.Super. 193, 194, 171 A.2d 542, 544 (1961) (upon satisfaction there no longer exists an obligation which may be opened or stricken, and all questions of liability and damages are deemed extinguished).

Applying these principles to our factual situation, we find that the underlying judgment has not been satisfied. It is clear that Appellees did not agree to extinguish or finalize all questions of liability and damages. This is evident in the carefully crafted agreement wherein Appellees partially released Appellant Covington from personal liability in exchange for any rights she may have to seek indemnification from Appellant Liberty Mutual. The plain language of the release dictates that the judgment will be satisfied only when Appellees have had the opportunity to pursue the judgment against Appellant Liberty Mutual. Once Appellees have had their day in court with Appellant Liberty Mutual, regardless of the outcome, judgment will be deemed satisfied according to law and Appellant Covington will have the absolute right to have said judgment marked satisfied.

Order affirmed. Case is remanded for the limited purpose of the court advising Appellant Covington of her need for independent counsel, in view of the obvious conflict of interest which exists on the part of present counsel for Appellant Covington. Jurisdiction relinquished.

      . It is unclear from the record precisely why Appellees were excluded from the settlement. Appellant Liberty Mutual contends that Appellees never responded to an invitation to participate in negotiations. To the contrary, Appellees contend that they did submit personal injury claims but that both insurance companies erred in omitting them from the settlement group.

      . Appellant Liberty Mutual’s defense to the pending bad faith action is that without an assignment of rights, Appellees lack standing to sue. Because proper standing depends solely on Appellant Covington's willingness to sign the release, a step that would clearly be detrimental to Appellant Liberty Mutual, Appellees claim that dual representation in this case poses a serious conflict of interest. Thus, in their brief, Appellees ask us to exercise plenary jurisdiction to disqualify counsel from representing both parties because of their blatant conflicting interests.
      We note that Appellees petitioned the lower court to disqualify counsel for Appellant Covington on the ground that he also represented Appellant Liberty Mutual. This motion was denied. We conclude that at the time the motion was presented, counsel for Appellants could have legitimately made the argument that he was able to effectively represent both Covington and Liberty Mutual because the common goal was to keep both entities from incurring liability. However, at this juncture, when it is readily apparent that Appellant Covington’s best interests directly conflict with those of Appellant Liberty Mutual, counsel’s dual representation presents an egregious ethical violation. This Court will not condone this representation when the actions taken by counsel have the grave consequence of depriving Appellant Covington of an advocate zealously representing her individual interests.
      Therefore, we direct the trial court to properly advise Appellant Covington of her right to independent counsel. Furthermore, Appellant Covington should be apprised of her current situation with regard to the judgment that exists against her and how it would be marked satisfied upon her assigning her rights against Appellant Liberty Mutual.

      . We note that the trial court opinion focused on whether the release fully or partially released Appellant Covington from liability instead of addressing whether a partial release constitutes satisfaction of judgment. Although we disagree with the trial court's conclusion that the release absolves Appellant Covington only to the amount paid under her Erie policy (56,900.00), we nonetheless find that the petition at issue was properly denied.

      . In his dissent in Key Savings, Judge Hester sets forth a thorough analysis of the law of satisfaction as it has evolved through this Court. The dissent correctly states that judgments may be satisfied by operation of law or by an agreement to accept as full payment an amount that is less than that owed. Thus, it is clear that “full payment” may not always mean that the creditor received his entire debt. It may only indicate that he accepted a lesser amount as full satisfaction of the debt. In such instances, the court must look to the language and intent of the parties’ agreement as we have done here.


author: OLSZEWSKI, Judge: JOHNSON, Judge,

text:
    670 A.2d 160
    Glen WEISMAN and Elliott Weisman, Individually and Trading as Weisman Investment, Appellees, v. The GREEN TREE INSURANCE COMPANY, Appellant. Superior Court of Pennsylvania.
    Argued Nov. 1, 1995.
    Filed Jan. 17, 1996.

      Thomas P. Bracaglia, Philadelphia, for appellant.
    Joel D. Caney, Philadelphia, for appellees.
    Before JOHNSON, HUDOCK, and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Appellees Glen and Elliott Weisman own and rent property-located at 13043 Blakeslee Court in Philadelphia. On November 15, 1992, one of their tenants at the Blakeslee Court address committed suicide with a shotgun. Appellees incurred $5,020.15 in damages for emergency cleanup, repairs and replacement of damaged property, and lost rent.

Since the Blakeslee Court premises were insured under a Limited Peril policy with appellant Green Tree Insurance Company, appellees notified appellant of the damages and of their intent to make a claim under their policy. When appellant refused to pay, appellees filed the instant suit.

Initially, the case went to arbitration, where a panel of arbitrators found in favor of appellees in the amount of the alleged damages, plus interest. On appeal to the trial court, the parties stipulated to the facts and submitted briefs on a single issue: “whether the ‘explosion peril’ provision of [the] insurance policy encompassed damages sustained as a result of a shotgun blast.” Trial court opinion, 6/14/95 at 1. On February 6, 1995, the Honorable Marvin R. Halbert found that the policy provision did cover the alleged damages, and entered judgment in favor of appellees. This appeal followed.

Appellant now claims that the trial court erred in concluding that the explosion provision provided coverage for gunshot damages. A question regarding the interpretation of an insurance contract is a matter of law for the courts to decide. E.g., Paylor v. Hartford Ins. Co., 536 Pa. 583, 585, 640 A.2d 1234, 1235 (1994). Our goal in interpreting an insurance contract is to ascertain the intent of the parties, as manifested by the language of the written policy agreement. Id. “When the policy language is clear and unambiguous, we will give effect to the language of the contract.” Id. If the provisions of a policy are ambiguous, however, the ambiguous provision is “construed in favor of the insured and against the insurer, the drafter of the instrument.” Bateman v. Motorists Mut. Ins. Co., 527 Pa. 241, 244, 590 A.2d 281, 283 (1991).

We will not find a contract provision ambiguous simply because the parties do not agree upon the proper construction. E.g., Ryan Homes, Inc. v. Home Indemnity Co., 436 Pa.Super. 342, 346, 647 A.2d 939, 941 (1994), appeal denied, 540 Pa. 621, 657 A.2d 491 (1995). Rather, “[a]n ambiguity exists only when a policy provision is reasonably susceptible of more than one meaning.” Id. See also Jefferson v. State Farm Ins., 380 Pa.Super. 167, 168, 551 A.2d 283, 284 (1988) (stating that a provision is ambiguous if reasonably intelligent persons could differ as to its meaning). Generally, courts should try to “read policy provisions to avoid ambiguities, if possible, and not torture language to create them.” Carpenter v. Federal Ins. Co., 432 Pa.Super. 111, 117-18, 637 A.2d 1008, 1011 (1994), appeal granted, 540 Pa. 576, 655 A.2d 508, appeal denied, 540 Pa. 592, 655 A.2d 982 (1995).

In the present case, the policy provision under scrutiny reads as follows:

PERILS INSURED AGAINST
We insure for direct physical loss to the property covered caused by a peril listed below unless the loss is excluded in the General Exclusions.
sfc H? # # #

3. Explosion.

R.R. at 13a. The trial court found that the term “explosion,” which was not defined in the policy, was ambiguous because it was reasonably susceptible to differing interpretations and could arguably encompass a shotgun blast. See trial court opinion, 6/14/95 at 3. Therefore, the court construed the provision in favor of appellees and held that their claimed damages were covered. Appellant asserts that the trial court erred because the term “explosion” was not ambiguous and clearly indicated that the parties did not intend to cover the discharge of a weapon. After careful review, we conclude that the trial court correctly' interpreted this policy provision.

As defined in Webster’s, the verb “explode” is defined in part as follows:

1: to burst forth with sudden violence or noise from internal energy: as a: to undergo a rapid chemical or nuclear reaction with the production of noise, heat, and violent expansion of gases ... b: to burst violently as a result of pressure from within....

Webster’s Ninth New Collegiate Dictionary 438 (9th ed.1984). See also Allen v. Insurance Co. of North America, 175 Pa.Super. 281, 283, 104 A.2d 191, 193 (1954) (holding that the term “explosion” must be taken in its ordinary sense, i.e., as “a violent bursting or expansion, with noise.”). Under this definition, it is at least arguable that a shotgun blast is a type of explosion. A shotgun certainly bursts forth with sudden violence and noise, and the burst is the result of internal energy. Hence, a broad reading of the term “explosion” could seemingly encompass a shotgun blast. Cf. Allen, 175 Pa.Super. at 283, 104 A.2d at 193 (finding damage caused by oil seeping from a storage tank was not caused by an “explosion” because the court found no evidence of sudden violence, noise, smoke, sprayed oil, or any type of detonation).

Admittedly, the term “explosion” is not commonly used to describe a shotgun blast. Nevertheless, we find that the term is susceptible to more than one meaning and that reasonably intelligent persons could differ as to whether a shotgun blast could be described as an explosion. Therefore, we conclude that this policy provision, which simply states that “explosions” are covered perils, is ambiguous as it applies to shotgun blasts. See Ryan, 436 Pa.Super. at 346, 647 A.2d at 941 (defining an ambiguous policy provision); Jefferson, 380 Pa.Super. at 168, 551 A.2d at 284 (same).

Since the explosion provision in the policy is ambiguous, we must construe it against appellant, the insurer. Using this liberal interpretation, the trial court properly found that the shotgun damages to appellees’ property were covered by their insurance policy.

' We highlight the fact that many of the other perils in this policy were expressly limited, and appellant certainly had the ability to further limit its coverage for explosions. It is incumbent upon appellant, however, to make these limitations clear. See Carpenter, 432 Pa.Super. at 116, 637 A.2d at 1011 (“As the drafter of an insurance policy, it is incumbent upon the insurance company to delineate as precisely as possible the full extent of coverage.”). Since we find that appellant did not clearly limit its coverage so as to exclude shotgun damages, we agree with the trial court’s ruling in favor of appellees.

Order affirmed.

JOHNSON, Judge,

dissenting.

The trial court first determined that the insurance policy was ambiguous and, accordingly, proceeded to construe the term “explosion” against the Green Tree Insurance Company (the Insurer). On appeal, my colleagues also find that the policy term is ambiguous because “reasonably intelligent persons could differ as to whether a shotgun blast could be described as an explosion.” Majority opinion at 553. However, I am unable to conclude that the word explosion is ambiguous because that term has a plain and ordinary meaning within the context of a limited peril homeowner’s insurance policy. Thus, I must respectfully dissent.

Glen and Elliott Weisman (the Landlords) purchased limited peril insurance coverage for their rental property from the Insurer. The insurance policy included coverage for direct physical loss to the property caused by an explosion. The Landlords sustained damage to the interior of the property as a result of a tenant’s suicide by shotgun. The damages included expenses for emergency cleanup, repairs, replacement of damaged property, and lost rent. We are called upon to determine whether the trial court erred in determining the damage to real estate arising from the intentional discharge of a shotgun, resulting in the dispersal of shotgun pellets and the splattering of human tissue, blood and other liquids constitutes a direct physical loss by explosion. I would conclude that it does not.

I believe the Majority’s analysis is flawed to the extent that it finds the term explosion to be ambiguous based solely upon the fact that a shotgun blast could be encompassed within the meaning of that term, rather than considering whether the term explosion is capable of more than one meaning. The rules for determining whether an ambiguity exists are clear:

The question of whether an ambiguity exists is to be determined by the Court as a question of law. 17A C.J.S. Contracts § 617 (1963). Merriam v. Cedarbrook Realty, Inc., 266 Pa.Super. 252, 404 A.2d 398 (1978).
A contract is ambiguous, if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indeflniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree upon the proper construction.

8 P.L.E. Contracts § 146 (1971).

Commonwealth State Highway and Bridge Auth. v. E.J. Albrecht Co., 59 Pa.Cmwlth. 246, 251, 430 A.2d 328, 330 (1981); cited and followed in Young by Young v. Equitable Life Assurance Soc’y, 350 Pa.Super. 247, 252-53, 504 A.2d 339, 341 (1986); Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 386, 476 A.2d 1, 5 (1984). Moreover, “[w'Jhen interpreting an insurance contract, words that are clear and unambiguous must be given their plain and ordinary meaning.” Ryan Homes, Inc. v. Home Indemnity Co., 436 Pa.Super. 342, 346, 647 A.2d 939, 941 (1994), appeal denied, 540 Pa. 621, 657 A.2d 491 (1995). “Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.” Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (citation omitted). “ ‘Courts should read policy provisions to avoid ambiguities, if possible, and not torture language to create them.’ ” Ryan Homes, supra, 436 Pa.Super. at 346-47, 647 A.2d at 941, quoting Carpenter v. Federal Ins. Co., 432 Pa.Super. 111, 118, 637 A.2d 1008, 1011-12 (1994). Further, “[i]n construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” Metzger, supra, 327 Pa.Super. at 385, 476 A.2d at 5.

Our standard of review in construing an insurance contract is well-settled. Where the material facts of a controversy are not disputed, the determination of coverage under an insurance policy is a question of law. Halpin v. LaSalle Univ., 432 Pa.Super. 476, 639 A.2d 37 (1994). When reviewing questions of law on appeal, we are not bound by the conclusions of the trial court but are free to draw our own inferences and reach our own conclusions. American States Ins. Co. v. Maryland Casualty Co., 427 Pa.Super. 170, 628 A.2d 880 (1993).

In this appeal, the policy at issue is a limited peril policy. Therefore, the Landlords must show, as a necessary prerequisite to recovery, that their claim is within the coverage provided by the policy. See Miller v. Boston Ins. Co., 420 Pa. 566, 218 A.2d 275 (1966). A limited peril policy purchased at a reduced cost, by its nature, circumscribes the losses for which recovery may be secured. See Peerless Dyeing Co. v. Industrial Risk Insurers, 392 Pa.Super. 434, 573 A.2d 541 (1990), appeal denied, 527 Pa. 636, 592 A.2d 1303 (1991). Moreover, courts will not interpret the policy language to provide coverage that is not intended. See O’Brien Energy Systems, Inc. v. American Employers’ Ins. Co., 427 Pa.Super. 456, 629 A.2d 957 (1993), appeal denied, 537 Pa. 633, 642 A.2d 487 (1994).

I differ from my colleagues in my view of the path to be followed in applying the well-established rules for construction of insurance contracts. The Majority reasons that “a broad reading of the term ‘explosion’ could seemingly encompass a shotgun blast.” Majority opinion at 553 (emphasis added). With this, I would agree. However, the Majority then finds that because of this, “the term [explosion] is susceptible to more than one meaning.” Id. Thus, the Majority concludes that the term explosion is ambiguous and must be construed against the Insurer. I find this to be flawed reasoning.

The analysis by which it is determined whether an ambiguity exists must precede the application of the rules which flow from that ambiguity. It must first be determined whether the term under examination has more than one meaning before any consideration can be given to its application to a particular set of facts. I disagree with my colleagues because they first find that the term explosion may encompass more than one physical phenomenon, then they improperly find that since different phenomenon may be encompassed within the term explosion, the term itself is “susceptible to more than one meaning.” Finally, they conclude that the “ambiguity” which they have established requires that the insurance policy be construed against the Insurer. The Majority determines that, “[u]sing this liberal interpretation, the trial court properly found that the shotgun damages ... were properly covered by [the Landlords’] insurance policy.” Id. at 553.

Nowhere does the Majority set forth what a second meaning of the term explosion might be, which would be necessary to establish an ambiguity. On the contrary, my colleagues cite to Allen v. Ins. Co. of North America, 175 Pa.Super. 281, 104 A.2d 191 (1954). There, we considered whether the term explosion contained in a fire insurance policy was susceptible of more than one construction and, therefore, ambiguous. We concluded that it was not. In pertinent part, we said:

We agree with [plaintiff/insured] that, where a policy is susceptible of more than one construction, it must be liberally construed in favor of the insured and against the insurer. However, it is equally well settled that, where there is no ambiguity, the court must construe the language of a policy in accordance with the plain ordinary meaning of its terms. The term “explosion” as used in a policy of insurance must be taken in its ordinary sense. An “explosion” is defined by Webster as “a violent bursting or expansion, with noise”. The distinguishing characteristic of an explosion is the detonation.

Id. at 284, 104 A.2d at 193 (citations omitted). Seventeen years earlier, in considering a policy imposing liability for damage or loss occurring by explosion only where fire ensued, and in that event for loss or damage by fire only, we said:

“An explosion produced by ignition, according to common understanding, may be accurately enough described for practical purposes as a sudden and rapid combustion, causing a violent expansion of the air, and producing a report more or less loud, according to the resistance offered. That it greatly varies in its degrees of violence and the effects produced are facts fully within the knowledge of all. The term as used in policies of insurance must be supposed to have been used in its ordinary and popular meaning.”

Tannenbaum v. Connecticut Fire Ins. Co., 127 Pa.Super. 278, 284, 193 A. 805, 308 (1937), quoting 3 Words & Phrases (First Series), at 2598 (citation omitted).

I see no reason to ignore or refuse to follow the precedent set by this Court in Allen and in Tannenbaum. The term explosion, when taken in its ordinary sense, is not capable of more than one meaning. 'Hence, there is no ambiguity inherent in the term itself. The fact that a shotgun blast could, arguably, be deemed to be an explosion connotes nothing more than that the term explosion may naturally encompass a variety of happenings. To say that a shotgun blast is one of the events that would qualify as an explosion is not to say that the term explosion has more than one meaning. Thus, I find the language contained in the provision of the policy here under review to be clear and unambiguous. This requires us to give effect to that language. Standard Venetian Blind Co., supra. Accordingly, on this appeal, the burden remains with the Landlords to show that the claim arising from the shotgun blast is within the coverage of the policy. Miller, supra.

With the burden properly placed upon the Landlords, I am unable to conclude that the facts of this case permit recovery under the terms of the limited peril policy here under review. As the Insurer correctly argues in its brief, when construing an insurance policy issued to cover ordinary risk of dwellings and commercial buildings, this Court must ascertain what was probably contemplated by the parties when the policy was written. Knorr v. Commercial Cas. Ins. Co., 171 Pa.Super. 488, 90 A.2d 387 (1952), appeal denied. To ascertain the intent of the parties, we may consider the surrounding circumstances, the parties’ situation, and the subject matter of the agreement. Wrenfield Homeowners Ass’n., Inc. v. DeYoung, 410 Pa.Super. 621, 600 A.2d 960 (1991). This Court will adopt the interpretation most reasonable and probable bearing in mind the objectives which the parties intended to accomplish through the agreement and the context in which the agreement took place. Harrity v. Medical College of Pennsylvania Hosp., 439 Pa.Super. 10, 653 A.2d 5 (1994), appeal denied, — Pa.-, — A.2d-(June 21,1995).

The coverage for explosion in the Landlords’ limited peril policy can reasonably be understood to apply to ordinary risks common to dwellings such as the unexpected build-up of pressure within home heating components or the accidental ignition of natural gas concentrations arising from a gas line leak. When the Landlords’ tenant deliberately aimed a shotgun at his own head and pulled the trigger, the shotgun operated precisely as designed and discharged its load in a directed, focused and purposeful manner. There was nothing spontaneous, accidental or diffuse in the manner in which the shotgun was operated. There was no unexpected pressure. The issue is not whether the means by which a weapon is discharged may be technically characterized as an “explosion.” The issue on this appeal is whether the intentional firing of a shotgun within a residential dwelling unit is included in the limited risks contemplated by the parties when the risk of explosion, without further definition, is set forth as one of several perils, including fire or lightning, windstorm or hail, and riot or civil commotion, which is covered by the policy.

The Insurer persuasively argues that the exotic nature of the incident at issue, by itself, cannot be allowed to transform the limited peril insurance policy to an all-risk policy. It also contends that the unusual circumstances of this case cannot be allowed to impermissibly shift the burden of proof to the Insurer to show exclusion from coverage. Because I agree, I am constrained to respectfully dissent. I would reverse the judgment in favor of the Landlords and remand with directions that judgment be entered in favor of the Insurer.

      . Wc also find it interesting to note that a gun is more commonly described as being “fired," and the verb "fire" is defined in part as "to cause to explode.” See Webster’s Ninth New Collegiate Dictionary 465 (9th ed.1984).