author: CIRILLO, Judge.

text:
    644 A.2d 193
    COMMONWEALTH of Pennsylvania v. Milton STITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 6, 1994.
    Filed June 24, 1994.

      Jeffrey M. Azpell, Media, for appellant.
    Vram Nedurian, Jr., Asst. Dist. Atty., Newton Square, for Com., appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   CIRILLO, Judge.

Milton Stith (Stith) appeals from a judgment of sentence entered in the Court of Common Pleas of Delaware County. We affirm.

On October 16, 1992 at approximately 3:05 a.m., a Swarthmore Borough police officer observed Stith operating his car in an erratic manner. Stith was stopped by Officer Raymond Stufflet, was given field sobriety tests, and was asked to submit to a blood alcohol test, to which he agreed. Stith’s blood was taken at Springfield Hospital approximately 35 to 40 minutes after the stop. His blood alcohol content (BAC) registered 0.12%. The margin of error in the testing procedure, as testified to by the forensic scientist who performed the test, indicated that the BAC could have ranged from .1123 to .1319. Stith was subsequently charged with violating 75 Pa.C.S.A. §§ 3731(a)(1), driving while under the influence of alcohol and incapable of safe driving, and 3731(a)(4), driving while under the influence of alcohol with a blood alcohol content of 0.10% or greater.

An omnibus pre-trial motion to compel discovery was filed, in which Stith requested that the Commonwealth provide him with “the results or reports of scientific tests, expert opinions and written or recorded reports of any experts consulted by the Commonwealth, whether or not the Commonwealth intends to call such expert as a witness at the trial in this matter.” The trial court ordered the Commonwealth to provide Stith with a copy of this report, which included the Commonwealth’s expert forensic toxicological evaluation.

Just prior to jury selection on July 13, 1993, Stith learned, allegedly for the first time, that the Commonwealth’s expert would “relate-baek” Stith’s BAC to the time he was driving. Stith made a motion to preclude the Commonwealth from introducing the relation-back testimony, as it had not been made a part of the requested discovery report. The motion was denied.

At trial, the Commonwealth offered the testimony of Dr. Richard Cohn, a toxicologist with a Ph.D. degree in pharmacology. Dr. Cohn testified that he could render a judgment regarding a person’s BAC at the time of driving without knowing when drinking was commenced or when the last drink was consumed. Specifically, during direct examination, the relevant testimony was as follows:

Q. In general, Dr. Cohn, what happens to a person’s [BAC] after they stop drinking?
A. After the drinking stops, ... the alcohol is metabolized or dissipated from the body. I think what you’re referring to is the dissipation rate. Alcohol leaves the body at a known, constant rate. And that rate at which it leaves is 0.015% per hour. So every hour the body has the capability of ridding itself of approximately ... one drink....
Q. What factors would you need to know in order to determine what someone’s blood alcohol content is ... or at a point where they are stopped driving a vehicle?
A. [T]he most important thing is to have a blood alcohol concentration determined. Also, together with that, it would be helpful to know what the drinking pattern was, when the drinking commenced, ... and when the last drink was consumed. But in the absence of having that specific information, judgments can still be made — forensic toxicologic judgments can still be offered on the analytical findings of a .12% blood alcohol obtained 40 minutes after an incident.
Q. If in the present case, Dr. Cohn, I told you that 40 minutes after the Defendant was stopped driving a vehicle, his [BAC] tested at a .12%, are you able to form an opinion with any degree of medical certainty as to what his [BAC] was at the time of driving?
MR. AZPELL: Objection.
THE COURT: The answer to that is yes, or no, Doctor.
THE WITNESS: Yes, Your Honor.
Q. And what is that opinion?
A. My opinion is that at the time that he was driving, ... that the concentration was higher than the .12[%], that the actual circulating, pharmacologically active [BAC] was .14%. And I based that on the fact that 40 minutes after the incident, it’s a fact that we know that the blood alcohol was at and around .12%. In order to have that, that equates to approximately — as a rule of thumb, approximately to about 6 drinks____ It’s unlikely that somebody is going to take all of that at one time, chug-a-lug it down, so to speak, at one sitting, and then absorb that within that 40-minute period....
[objection overruled]
Q. Doctor, have you finished the basis for your opinion?
A. Well, I guess the point I was making was that it’s a fact that the circulating blood alcohol was a .12%. In my expert forensic toxicologic opinion, there’s no way that that .12% could exist 40 minutes after the incident, with the scenario where this individual was not under the influence of alcohol at the time he was stopped.

Additionally, Dr. Cohn was asked, hypothetically, if someone had consumed six drinks just before being stopped (which assumes a position most favorable to Stith), would that person exhibit the signs described by Officer Stufflet, i.e., walking with an unsteady gait, failing field sobriety tests, etc.? Dr. Cohn replied in the negative. He testified, on cross-examination, that alcohol is absorbed into the bloodstream within approximately 40 minutes after consumption. Also on cross-examination, Dr. Cohn testified that Stith had a BAC higher than .12% at the time he was stopped. In other words, it was Dr. Cohn’s opinion that Stith’s BAC was decreasing between the time he was stopped and the time the blood was drawn. No testimony was offered as to when Stith had his last drink.

The jury returned a verdict of not guilty of violating section 3731(a)(1), and guilty of violating section 3731(a)(4) (driving with a BAC of .10% or greater).1 *4Post-verdict motions were filed and denied and Stith was sentenced to 30 days (15 weekends) to 23 months imprisonment. This appeal followed.

Stith raises the following issues for our review:

(1) Did the trial court err in allowing the Commonwealth’s expert to relate back appellant’s BAC to the time he was driving where the evidence did not reveal when appellant had his last drink or whether his BAC was rising or declining at the time he was driving?
(2) Did the trial court err in allowing the Commonwealth’s expert to relate back appellant’s BAC to the time that he was driving where such testimony exceeded the scope of the expert’s report?
(3) Was the evidence sufficient to sustain a conviction for a violation of 75 Pa.C.S.A. § 3731(a)(4) — driving while under the influence of alcohol with a BAC of .10% or greater?

Stith first contends that the trial court impermissibly allowed Dr. Cohn’s relation-back testimony where there was no evidence introduced as to when Stith had his last drink. The decision to admit expert testimony lies within the sound discretion of the trial court and such determination will not be reversed unless an abuse of that discretion is found to exist. Commonwealth v. Miller, 426 Pa.Super. 410, 423-26, 627 A.2d 741, 748-49 (1993); Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988).

In Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992) and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), the Pennsylvania Supreme Court vacated the appellants’ judgments of sentence on the basis that 75 Pa. C.S.A. § 3731(a)(tí requires the relation back of a BAC test result to the time when the accused was driving,2 The BAC’s of the defendants in Jarman and Modaffare were both tested minimally above .10% — .104% and .108%, respectively. One hour had elapsed between the time Mr. Jarman was stopped and the time when a sample of his blood was drawn at the hospital. Approximately two hours had passed between the time of Mr. Modaffare’s accident and the time his blood was drawn for purposes of determining his BAC. In neither case were the Commonwealth’s experts able to render an opinion as to whether the defendants’ BAC was .10% or greater at the time of the stop/accident. Accordingly, both cases were reversed on insufficient evidence grounds. See also Commonwealth v. Osborne, 414 Pa.Super. 124, 606 A.2d 529 (1992) (where defendant’s BAC was .1488% and the sample was taken within an hour of driving, it was determined that these circumstances did not create a strong inference of guilt and, therefore, the court held that relation-back testimony was required to sustain a conviction under section 3134(a)(4)).

Here, Stith’s BAC was .12% and the blood sample was taken about 40 minutes after being stopped. Consistent with Jar-man, Modaffare, and Osborne, these circumstances did not give rise to a strong inference of guilt. Relation-back testimony was required in order to sustain a conviction under section 3731(a)(4).

The question then becomes whether Dr. Cohn’s testimony was adequate to serve as relation-back testimony, or whether the testimony was irrelevant and not properly admitted. Stith submits that Dr. Cohn formed an opinion as to Stith’s BAC at the time he was driving by assuming that Stith’s BAC was declining at the time he was driving; he asserts that without evidence to establish Stith’s drinking pattern, the relation-back testimony was based on speculation and conjecture.

In support of this argument, Stith relies upon Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988). There, the appellant had been involved in an accident and his BAC, taken three hours after the accident, was .09%. There was no evidence revealing when appellant had his last drink or whether his BAC was rising or declining at the time of the accident. Rather, the Commonwealth’s expert witness stated that if it was assumed appellant’s BAC peaked prior to the accident, then it was possible that his BAC was .125 at the time of the accident. He also stated that he was unable to give an opinion as to appellant’s related-back BAC without knowing when the appellant had taken his last drink. In considering the admissibility of the expert relation-back testimony, the Pennsylvania Supreme Court noted:

Since the evidence did not reveal when appellant had his last drink or whether his blood alcohol had peaked prior to the accident, it is clear there is no way of judging whether his [BAC] was rising or declining at the time of the accident. The question then arises whether the testimony concerning the absorption and elimination of alcohol was relevant.
[The expert’s] testimony that he could not state what appellant’s [BAC] was at the time of the accident because he did not know when appellant took his last drink actually tended to show that the Commonwealth could not prove that the appellant was driving with a [BAC] of .10 or more in violation of § 3731(a)(4).

Id. at 133-134, 546 A.2d at 34 (emphasis added; citations omitted).

Based on the expert’s testimony, the court in Gonzalez found it unclear as to whether the trial court properly received and admitted the expert testimony as evidence that appellant was driving while his BAC was .10% or more. In the instant case, like in Gonzalez, there was no testimony presented as to when Stith had his last drink. This, however, is where the similarity ends.

Here, Dr. Cohn unequivocally stated that he could render a judgment regarding Stith’s BAC without knowing when the last drink was consumed, that at the time Stith was driving his BAC was an estimated .14%, and that Stith’s BAC was decreasing between the time he was stopped and the time blood was drawn. As a basis for these conclusions, Dr. Cohn testified that alcohol is absorbed into the bloodstream, after ingestion, approximately within a 40 minute period. He also opined that a reading of .12% BAC equates to approximately six drinks. Considering a scenario most favorable to Stith, Dr. Cohn opined that, assuming six drinks were consumed just before being stopped, it was not possible for one to exhibit signs of intoxication at the scene. Rather, the signs of intoxication at the scene of the arrest, combined with a test result of .12% BAC 40 minutes after driving, gave rise to Dr. Cohn’s conclusion that Stith’s BAC was declining between the time he was stopped and the time blood was drawn. From these facts Dr. Cohn was able to estimate that Stith’s BAC at the time of driving was approximately .14%. See Commonwealth v. Britcher, 386 Pa.Super. 515, 563 A.2d 502, aff'd, 527 Pa. 411, 592 A.2d 686 (1991) (while an expert may not base an opinion on conjecture, an expert opinion may be given in response to a hypothetical question posed by counsel so long as the assumed set of facts upon which the opinion is based is eventually supported by competent evidence and reasonable inferences derivable therefrom); see also Commonwealth v. Loeper, 423 Pa.Super. 32, 620 A.2d 25 (1993) (where an expert testified that most people do not exhibit signs of intoxication until they achieve a level of .15%, the fact finder could infer from evidence of appellant’s slurred speech that appellant’s BAC was in excess of .10% at the time of the stop and that appellant’s BAC did not rise between the time he was stopped and when the blood was tested).

Despite the fact that there was no testimony indicating when Stith had his last drink, we find that the expert testimony was helpful; it was not confusing, prejudicial, nor based on conjecture. We find no reason to disturb the trial court’s decision to admit Dr. Cohn’s expert testimony, as there was no abuse of discretion. Miller, supra; Emge, supra.

The second challenge to the admissibility of Dr. Cohn’s expert testimony is based on Stith’s argument that such testimony exceeded the scope of the expert report. Stith submits that because the report did not include a reference to Stith’s related-back BAC, that Stith’s motion to preclude the relation-back testimony should have been granted pursuant to Pennsylvania Rule of Criminal Procedure 805E. We disagree. As mentioned above, the Commonwealth, by order of the trial court, provided Stith with a copy of the Commonwealth’s expert forensic toxicological evaluation, which provided in part that, “Based on the BAC concentration found 40 minutes after being stopped ... [Stith was] unfit to safely judge his surroundings and control his actions while driving.”

Not included in the report was Dr. Cohn’s opinion, which he testified to at trial, that at the time of driving the BAC was higher than the registered .12% and was, more accurately, .14%. Stith, in his appellate brief, concedes that there are no reported criminal cases which discuss the appropriate remedy where the Commonwealth introduces expert testimony exceeding the scope of an expert report. Rather, Stith relies upon civil rules and case law to support his notion that in criminal cases, an expert is limited to testifying only to the facts contained in his or her report. See Pa.R.C.P. 4003.5(c).

Our review of the expert’s report reveals that, while it did not cite a specific related-back BAC percentage, the report contained language sufficient to notify Stith of Dr. Cohn’s intent to testify regarding Stith’s related-back BAC. Implied in the portion of the report which referred to Stith’s impaired judgment “while driving,” is the assumption that Dr. Cohn planned to offer an opinion regarding a related-back BAC. Dr. Cohn’s testimony did not exceed the fair scope of his report.

It is axiomatic that defense counsel has an obligation to remain cognizant of the current law, especially law which directly impacts a client’s case. Jarman and Modaffare are cases crucial to both the Commonwealth and defense in any DUI matter. The mandates regarding relation-back testimony have been established in these cases and, accordingly, counsel for both sides should be adequately prepared to examine and cross-examine witnesses offering such testimony. We are not persuaded that Stith did not anticipate the introduction of relation-back testimony; the record does not support this claim. For instance, in his opening statement, Stith declared, “And, again, they [Commonwealth] have to prove what it [the BAC] was at the time that he was operating the vehicle [,] [n]ot what it was at the time the blood was drawn, or when the blood was tested.” Also, when Stith’s motion to restrict the expert testimony was denied, he did not request a mistrial, nor did he request that defense counsel be given time to consult his own expert. Finally, after Dr. Cohn’s testimony, he was cross-examined extensively by Stith. Again, we find no basis on which to disturb the trial court’s decision to allow the Commonwealth to relate back Stith’s BAC. Miller, supra; Emge, supra.

In his final issue on appeal, Stith challenges the sufficiency of the evidence to sustain a conviction for a violation of 75 Pa.C.S.A. § 3731(a)(4). A sufficiency of the evidence claim requires the reviewing court to view the evidence, and all reasonable inferences therefrom, in the light most favorable to the Commonwealth as verdict winner; the test is whether the evidence, when so viewed, is sufficient to prove every element of the crime beyond a reasonable doubt. Jarman, supra; Modaffare, supra.

Here, the Commonwealth was required to prove that Stith’s BAC was .10% or greater while he was operating his vehicle. 75 Pa.C.S.A. § 3731(a)(4). In compliance with the mandates set forth in Jarman and Modaffare, the Commonwealth presented expert testimony relating back Stith’s BAC test result to the time Stith was driving. Specifically, the expert testimony, which we have deemed properly admitted, revealed that Stith’s BAC at the time of driving was an estimated .14%. As previously discussed, this determination stemmed from the evidence of Stith’s visible signs of intoxication when he was stopped, and his .12% BAC result 40 minutes later. This evidence supported Dr. Cohn’s conclusions that Stith’s BAC was in excess of the legal limit while driving, and that the BAC was declining at the time the blood was tested. The evidence and reasonable inferences to be drawn therefrom, when considered in the light most favorable to the Commonwealth, were sufficient to enable the jury to find beyond a reasonable doubt that Stith was guilty of violating Pa.C.S.A. § 3731(a)(4).

Accordingly, we affirm the judgment of sentence.

      . Officer Stufflet testified that Stith failed both the "heel-to-toe” test and the "one-legged stand” test. Officer Stufflet also testified that he smelled an odor of alcohol when he approached Stith, and that Stith walked with a stagger after exiting his car to perform the sobriety tests.

      . (a) Offense defined — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      ‡ Ht si« s¡« # #

      (4) the amount of alcohol by weight in the blood of the person is 0.10 or greater.
      75 Pa.C.S.A. § 3731(a)(4) (emphasis added).

      . In both cases it was stated that where test results show BAC levels significantly above .10% and where such samples are obtained soon after the suspects have been stopped, there is a strong inference that BAC levels were in the prohibited range while driving. Conversely, where BAC test results only minimally exceed .10% and where the suspects' blood samples are drawn shortly after they are stopped, the inference is considerably weakened.

      . This scenario, of course, would bolster Stith’s position. Arguably, if all drinking was done immediately before being stopped, a person’s BAC at the time of the stop would be on the rise. Assuming a BAC test was performed a significant time after the stop, the results would reflect a BAC at its peak, which, if related back, would not necessarily reflect an illegal BAC at the time of driving.

      . The pertinent provisions of Pa.R.Crim.P. 305 provide:
      B. Disclosure by the Commonwealth
      (1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant's attorney to inspect and copy or photograph such items.
      * ifi # * # 1 *
      (e) results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant, which are within the possession or control of the attorney for the Commonwealth.
      * * * # # sfc
      E. Remedy
      If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order it deems just under the circumstances.
      Pa.R.Crim.P. 305B(l)(e) and 305E.

      . Rule 4003.5(c) provides, in pertinent part:
      (c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings ... his direct testimony at trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his ... separate report.... However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.
      Pa.R.C.P. 4003.59(c).


source: Caselaw Access Project

author: DEL SOLE, Judge. MONTGOMERY, Judge,

license: Public Domain

text:
    644 A.2d 199
    Audrey BREDNICK, Timothy W. Brednick v. Tony MARINO, Linda Marino, Charles Morgan, Bonita Morgan, Ventures Unlimited, Business Ventures Associates, Inc., David E. Cummons. Appeal of Tony MARINO, Linda Marino and Ventures Unlimited.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1994.
    Filed June 28, 1994.

      Thomas A. Crawford, Jr., Pittsburgh, for appellants.
    Patti C. Lerda, Swissvale, for appellees.
    Before DEL SOLE, FORD ELLIOTT and MONTGOMERY, JJ.
   DEL SOLE, Judge.

Appellants, Tony Marino, Linda Marino and Ventures Unlimited, file this appeal from a judgment entered in favor of Appellees, Audrey Brednick and Timothy W. Brednick. The trial court summarized the facts of this case as follows:

Plaintiffs purchased a Video-Game-Arcade business from Defendants. After operating the arcade for six months, Plaintiffs abandoned the previous lease and discontinued the arcade operations. The instant litigation was commenced when Plaintiffs filed a Complaint to recover money damages based on actions alleging that Defendants breached the cited contract and acted deceitfully.'
Defendants did not file an Answer to the Complaint. As directed by Plaintiffs, the Prothonotary entered a judgment of liability only in favor of Plaintiffs and against Defendants. The sole issue tried at the non-jury trial was the amount of the monetary damages to be awarded under the prescription of Pa.R.C.P. § 1037(b)(1) (Judgement Upon Default or Admission — Assessment of Damages).
Calendar Control Judge McGowen ruled that Defendants were not entitled to a jury trial; they had not filed an Answer to the Complaint prior to the time when Plaintiffs file with the Prothonotary a Praecipe to Enter Judgment in favor of Plaintiffs and against Defendants on liability only. Plaintiffs had demanded a jury trial but later they -withdrew their demand. Defendants did not file a written demand for a jury trial.

The non-jury trial commenced on 2 June 1993.

The trial court awarded Appellees $60,350.00 in damages. The court entered its verdict on June 10, 1993, but did not mail copies of the verdict to the parties until June 30, 1993. On July 8, 1993, Appellants’ counsel filed both “Exceptions and Motion for Post-Trial Relief’ and a Notice of Appeal. The trial court struck the “Exceptions” as inapplicable and denied Appellants’ post-trial motions as untimely. This appeal followed.

Appellants assert that the amount of the trial court’s verdict was unsupported by the evidence, that they were wrongfully refused a jury trial and that the trial court improperly denied their motion for post-trial relief.

We find merit in Appellants’ claim that they were improperly denied consideration of their post-trial motions. The docket reflects that the court entered its verdict on June 8, 1993 and it was recorded in the Prothonotary’s Office on June 10, 1993. In the lower left hand corner of the court’s verdict slip there is a notation indicating that three copies of the verdict were mailed on June 30,1993. The trial court held that Appellants had ten days from the entry of the verdict to file their post-trial motions and we agree that that is normally true, however, a review of applicable case law and the facts of the instant case lead us to a different conclusion.

In Carr v. Dawning, 388 Pa.Super. 195, 565 A.2d 181 (1989), allocatur denied 527 Pa. 628, 592 A.2d 1296 (1991), this court recognized that Pa.R.C.P. 227.1(c)(2) requires that post-trial motions be filed within ten days following “the filing of the decision or adjudication in the case of a trial -without jury”, but the court read Rule 227.1(c)(2) in conjunction with Rule 108(b) of the Rules of Appellate Procedure and concluded that the notice required by Rule 108(b) is “essential to compute the relevant ten day time period under Rule 227.1”. Id. at 196, 565 A.2d at 182. Therefore, we held that the ten day period during which counsel must file post-trial motions begins on the date that copies of the court’s order are sent to counsel.

Initially, it is important to note that the parties did not receive notice of the court’s verdict at the close of the trial because the court did not announce its verdict. The trial was held on June 2, 1993 and the verdict was filed on June 10, 1993. Notice of the court’s verdict, however, was not mailed to the parties until June 30, 1993 after which Appellants’ counsel filed post-trial motions on their behalf on July 8, 1993. Therefore, applying the holding in Carr v. Downing, supra, to the facts of the present case, Appellants’ post-trial motions clearly fell within the ten day time period prescribed by Rule 227.1(c)(2). Accordingly, we hold that the trial court erred in dismissing Appellants’ post-trial motions as untimely. Normally, in a situation like this, we would vacate the judgment and remand the matter for disposition of Appellants’ timely filed post-trial motions, but because the issues presented by this appeal can be readily determined from a review of the record, we will address Appellants’ remaining claims.

Appellants allege that the trial court’s verdict was not supported by the evidence presented at trial. We disagree. The testimony elicited at trial showed that Appellees secured a $25,000.00 loan in order to acquire the business and, at the time of the hearing, had made $31,650.00 in interest payments on the loan. Furthermore, due to the fact that Appellants did not file a timely answer to Appellees’ Complaint, it was deemed admitted that, based upon false representations made by Appellants to Appellees that the business would generate a monthly gross profit of $9,000.00, Appellees expected that they would receive $3,766.20 in gross profits monthly. Adding the amount of the loan and interest together with one month’s worth of lost profits, the trial court arrived at a verdict of $60,350.00 in favor of Appellees. From our review, it is clear that the trial court’s verdict was sufficiently supported by the evidence presented and therefore, we affirm.

Appellants’ remaining claim centers on their belief that they were improperly denied the right to a jury trial. We find no support for this allegation. Pennsylvania Rule of Civil Procedure 1007.1 states that, “[i]n any action in which the right to jury trial exists, the right shall be deemed waived unless a party files and serves a written demand for a jury trial no later than (20) days after service of the last permissible pleading. The demand shall be made by endorsement on a pleading or by separate writing.” Pa.R.C.P. No. 1007.1(1), 42 Pa.C.S.A. We have carefully reviewed the record and at no time during the instant case did either Appellants or Appellees file a written request for a jury trial and, therefore, we hold that this issue is wholly without merit.

Judgment affirmed.

MONTGOMERY, J., files a concurring and dissenting statement.

MONTGOMERY, Judge,

Concurring and Dissenting.

I agree with the conclusion that the trial court erred in ruling that the appellants’ posttrial motions were untimely. However, I would not address the merits of those posttrial claims for the first time on this appeal. I believe the claim that the verdict amount was improper requires a factual review which should be considered initially by the trial court, rather than by our court. See, Lanard & Axilbund v. Muscam, 394 Pa.Super. 251, 575 A.2d 615 (1990). Accordingly, I would remand this case to the trial court to allow it to address the merits of the appellants’ posttrial motions.

      . Pennsylvania Rule of Appellate Procedure 108(b) reads as follows: Rule 108. Date of Entry of Orders
      (b) Civil Orders. The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).
      Pa.R.A.P. No. 108(b), 42 Pa.C.S.A.

      . The terms of the sales agreement entered into between Appellees and Appellants on October 15, 1982, and attached to Appellees’ Complaint as "Exhibit A”, provided that the parties would split the gross income from the games monthly with 60% of the profits going to Appellees and 40% of the same to Appellants.


author: POPOVICH, Judge:

text:
    644 A.2d 201
    Randall L. ALLOWAY, Sr. D/B/A Alloway General Contractor, v. James B. MARTIN D/B/A Roof Consultant Service Interpleader of Tanya D. Billet, Appeal of Tanya BILLET.
    Superior Court of Pennsylvania.
    Argued April 6, 1994.
    Filed July 1, 1994.

      Allen H. Smith, York, for appellant.
    Donald B. Swope, Hellam, for appellee.
    Before ROWLEY, President Judge., and KELLY and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of York County denying Tanya D. Billet’s Petition to Interplead a Sheriffs adverse determination of prima facie title pursuant to Pa.R.Civ.P. 3201 et seq. We affirm.

The facts of record disclose that the plaintiff, Randall L. Alloway, took a default judgment against the defendant, James B. Martin, in the amount of $5,912.22 plus interest of $1,064.20. The plaintiff had the contents of the defendant’s home posted for sheriffs sale on June 16, 1993. However, prior to sale, the defendant’s daughter (Billet) filed an inter-pleader advising the Sheriff not to sell any of the property allegedly owned by the defendant and his wife, for “[t]his property was sold ... to [Billet] on May 21,1990, ... [and] by way of th[e] Interpleader [she] claim[ed] title to th[e] property.” RR. 17a.

The Sheriff conducted a hearing with all parties present, and, on September 16,1993, ruled that “the property belonged to the Defendant at the time of the levy and [wa]s subject to sale.” RR. 24a. Objections were filed by Billet and a hearing was held by the court to rule on their merits. At that proceeding, Billet testified that she was last employed in March of 1989 and was living in Ohio collecting public assistance ($403 per mo.) when she loaned her parents $4,000.00 in March of 1990 “to help them out with their bills.” Further, in exchange for the money advanced, Billet was given ownership of the furnishings located in her parents’ home. Yet, she did not take physical possession of the contents “because ... [she] would not take all of the [parents’] furnishings ... [so] they wouldn’t have nothing.” RR. 69a.

Billet was asked by the court how the $3,874.64 figure assigned to the furniture appearing on the bill of sale was determined. She responded that she and her mother walked through the house and priced each item. When the court inquired further as to how the two came up with the $.64 in valuing the property, Billet answered, “I don’t know____” RR. 70a.

Additionally, given that Billet had “loaned” her parents $4,000.00 in March of 1990, the court asked: “So, if that be the case, then this bill of sale in May of 1990 had nothing really to do with the actual transfer of the funds ... ?” To which Billet retorted: “In mind-wise, yeah. We just didn’t put everything down on paper, just between family and stuff like that. We did a lot of talking before it actually went down on paper.” RR. 71a-72a. Nonetheless, Billet maintained that she owned the household furnishings. This was so despite the fact that she had signed an “Affidavit of Indigency” allowing her to waive a bond to stay the sale of the proposed property. It read that she owned no property.

When counsel for the plaintiff asked why she did not list that she owned property on the court affidavit, Billet responded: “I wasn’t going to list the beds, the pictures. That’s a lot to write.” RR. 66a.

Once the defendant took the stand, he stated that he was in need of money, having come out of bankruptcy on June 11, 1990, and accepted the $4,000.00 loan from his daughter. The loan, according to the defendant, was secured by transferring ownership of his furnishings and documenting the same by way of a bill of sale dated May 21, 1990.

It was the contention of the defendant that the plaintiffs demand letter, which was followed by the Sheriffs serving a notice of default on May 16, 1990, did not prompt him to sell his household goods to his daughter on a bill of sale drawn May 21, 1990. It was the defendant’s position that the sale had been contemplated prior to the receipt of the Sheriffs notice of sale and the plaintiffs demand letter. In fact, he testified that the May 21, 1990, bill of sale had been preceded by a preliminary agreement drafted on “household paper” left at his home.

The court, after hearing from Billet and the defendant, concluded that Billet “did not sustain her burden that legal title to the seized goods were in her name. The bare bill of sale, executed when the judgment creditor was ‘knocking at the door’, absent proof of ability to purchase through verification or otherwise, as well as the other underlying circumstances described above[, i.e., Billet’s welfare status, receipt of $4,000.00 from an unnamed boyfriend, not reporting obtaining property to the welfare authorities, not securing possession of the goods at the time of the alleged sale, and the claimed coincidence of the bill of sale arising only five (5) days after receipt of the demand letter], dictates a ruling against [Billet].” Order of Court, 10/19/93 at 3. This appeal followed and assails the sufficiency of the evidence denying Billet’s inter-pleader.

We are satisfied that the initial burden of going forward with proof in this interpleader was cast upon Billet. Pa.R.Civ.P. 3207(b); King v. National Union Fire Insurance Co., Fayette L.J. 127, 130 (1968) (citations omitted). This meant that because the conveyor/defendant was in debt at the time of the conveyance, “the burden rest[ed] upon the grant-eel/Billet] to establish by clear and convincing evidence that either the conveyor was solvent and was by such conveyance not rendered insolvent; or that a fair consideration had been paid for the conveyance.” United States v. Purcell, 798 F.Supp. 1102, 1111 (E.D.Pa.1991) (Citation omitted).

Since fraud is usually denied, it must be inferred from all facts and circumstances surrounding the conveyance, including the relationship of the parties. See Godina v. Oswald, 206 Pa.Super. 51, 211 A.2d 91, 94 (1965); see also Purcell, supra, 798 F.Supp. at 113. And, fraud is a question of fact for the trier-of-fact to decide. Golder v. Bogash, 325 Pa. 449, 188 A. 837, 838 (1937) (Citation omitted). “For instance, a person deeply indebted, and on the eve of bankruptcy, makes over his property to a near relative, who is known not to have the means of paying for it. From these facts a [trier-of-fact] may infer the fact of a fraudulent intent to hinder and delay creditors. A presumption of fraud is thus created, which the party who denies it must repel by clear evidence, or else stand convicted. * * * A resort to presumptive evidence, therefore, becomes absolutely necessary to protect the rights of honest men from this, as from other invasions. * * * It is no hardship upon an honest man [or woman] to require a reasonable explanation of every suspicious circumstance, and rogues are not entitled to a veto upon the means employed for their detection.” Shechter v. Shechter, 366 Pa. 30, 76 A.2d 753, 755-56 (1950).

The defendant testified to his debtor status being discharged on June 11, 1990, a date subsequent to the alleged sale of his personalty to his daughter. RR. 74a. Thus, the burden was on Billet, as the grantee, to show by clear and convincing evidence either (1) that at the time of the conveyance the defendant was solvent, or (2) that Billet paid fair consideration. She did neither. Purcell, supra. In support of the absence of fair consideration, we quote with approval the court’s Order dated October 19, 1993, denying Billet’s interpleader; to-wit;

We have considered the proof offered by Tanya Billet, which consisted of a notarized bill of sale and her representation that she remitted to her step-father and mother a cash sum in the amount of $4,000.00 to her father in February of 1990 [ — sic, March of 1990, RR. 71a].
She then contends that she and her mother, Beverly Martin, later proceeded through the entire household, valuing the items sold to her, and which resulted in a bill of sale to her, identified as Petitioner Exhibit No. 1. Tanya testified that the cash purportedly delivered to her mother and stepfather was not hers, but that she borrowed the $4,000.00, since she was on welfare, from an unnamed boyfriend. She further advised that she did not report these as assets belonging to her to the authorities, nor did she secure possession of the goods at the time of the alleged sale. It was not until the last several months that she came into possession of a limited number of these items. James Martin testified that the sale was affected to “secure the loan” from Tanya to Martin.
Given the above, and the claimed coincidence of the bill of sale arising only five (5) days after receipt of the demand letter, leads the Court to conclude that, indeed, the transaction was not a legitimate sale, the good faith or fraud of a purchaser who leaves the goods in the hands of the debtor, may be determined. We find Tanya did not sustain her burden that legal title to the seized goods was in her name. The bare bill of sale, executed when the judgment creditor was “knocking at the door”, absent proof of ability to purchase through verification or otherwise, as well as the other underlying circumstances described above, dictates a ruling against her.

We deny claimant’sITTanya’s] interpleader. We agree, with the addition that the relationship of the claimant/Tanya and the defendant/debtor and the self-serving remarks of the duo were properly for the trier-of-fact to consider and disbelieve. Purcell, supra; Golder, supra; Godina, supra.

Therefore, Billet did not establish “by clear and convincing evidence that the conveyor was solvent or was not rendered insolvent by the conveyance or that fair consideration had been paid for the conveyance.” Purcell, supra, 798 F.Supp. at 1112 (Citation omitted).

Order affirmed.

      . Billet claimed that the money was borrowed from her boyfriend and repayment was contemplated, but no written proof of reimbursement existed.

      . It should be noted that historically sheriff's interpleader was designed to relieve the sheriff — and to a limited extent the judgment creditor— from actions for wrongful levies. King v. National Union Fire Insurance Co., Fayette L.J. 127, 133 (1968).


author: BROSKY, Judge.

text:
    644 A.2d 204
    COMMONWEALTH of Pennsylvania v. Donald GRANBERRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1993.
    Filed Feb. 7, 1994.
    Reargument Denied July 28, 1994.

      Donald Granberry, appellant, pro se.
    Patrick M. Carey, Asst. Dist. Atty., Erie, for the Com., appellee.
    Before ROWLEY, President Judge, and JOHNSON and BROSKY, JJ.
   BROSKY, Judge.

Donald Granberry appeals from the July 9, 1992, trial court order denying his second petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541 et seq. Appellant’s appellate counsel, Joseph P. Burt, Esquire, has filed a petition to withdraw as counsel.

Appellant pled guilty to false reports and on March 1, 1984 he was sentenced by Judge William E. Pfadt to one-to-two years imprisonment (this case was docketed at No. 1753 Erie County 1983). He did not appeal to our Court. In a consolidated case (No. 1264 Erie County 1983) a jury found appellant guilty of burglary, receiving stolen property and conspiracy; on September 27, 1984 he was sentenced by Judge Jess S. Juiliante to four-to-eight years imprisonment. On January 9, 1984 appellant pled guilty to conspiracy and burglary; these crimes were docketed under the same Erie County Docket Number (No. 1264 of 1983) as the jury convictions of burglary, receiving stolen property and conspiracy. On March 1, 1984 appellant was sentenced by Judge James Dwyer to one-to-two years imprisonment and eight years probation, to run consecutive to the term of imprisonment.

Appellant appealed the jury convictions and on October 18, 1985 a panel of this Court affirmed his judgment of sentence. Commonwealth v. Granberry, (No. 1380 Pittsburgh 1984). Appellant then filed a petition under the Post Conviction Hearing Act (“PCHA”), 42 Pa.C.S. §§ 9541-9551 (Repealed April 13, 1988); the PCHA petition concerned his convictions under Nos. 1753 and 1264 Erie County 1983. An attorney from the Erie County Public Defender’s Office was appointed to represent appellant. Trial Court Order, 9/12/86. On September 20, 1990, the trial court denied the petition, without a hearing. An untimely appeal was quashed by this Court on May 6,1992. Appellant then apparently violated his probation at No. 1264 Erie County 1983 (the record is unclear regarding this matter but our conclusion is based upon events that transpire in the record subsequent to the gap in the record) and was sentenced.

Appellant then filed a direct appeal to our Court (regarding No. 1264 Erie County, 1983), raising ineffectiveness of counsel issues, a claim that the trial court erred in revoking his probation and a claim that his sentence for probation violation was excessive. On May 21, 1992 our Court found the ineffectiveness claims meritless and the probation revocation claim meritless, 421 Pa.Super. 648, 613 A.2d 28, but, found that the sentence of seven and one-half to fifteen years imprisonment for probation violation “has not been supported by the record before us and unless substantiated by review in accordance with the sentencing code ... it may be considered excessive[]”; our Court remanded for resentencing. Commonwealth v. Granberry, (No. 1502 Pittsburgh 1990, at 9-10). Appellant was resentenced and filed an appeal to this Court; as of this writing there has been no disposition of that appeal. Commonwealth v. Granberry, (No. 1342 Pittsburgh 1992).

Appellant then filed the instant pro se PCRA petition, his second post-conviction petition, and his issues and entire argument were as follows:

(1) Trial counsel was ineffective; (2) appellate counsel was ineffective; (3) denial of my 5th and 14th Amend, rights to due process; (4) Inordinate delay; (5) Counsel on PCHA petition was ineffective; (6) Denial of my 1st Amend, right to access of the courts; (7) Prosecutorial misconduct; (8) Official oppression; (9) Denial of my right to appeal; (10) Denial of my 6th Amend, right to a fair trial; (11) Abuse of discretionary aspects of sentence.

Appellant’s PCRA Petition. The trial court did not appoint counsel and on July 9, 1992 denied the petition without a hearing. Counsel was appointed for appellant and the instant appeal was filed. The only issue raised was that the trial court erred in failing to appoint PCRA counsel and in denying the PCRA petition without a hearing. Appellant’s appellate counsel, Joseph P. Burt, Esquire, then filed a petition to withdraw as counsel and advised appellant that he could raise additional issues. On September 22,1993 appellant filed a pro se supplemental brief, alleging that (1) his counsel was ineffective (a) for failing to appeal from the denial of his PCHA petition (appellant’s first post-conviction petition), (b) for failing to amend the pro se PCHA petition and failing to function as appellant’s counsel, (c) counsel failed to request relief on appellant’s behalf regarding a September 16, 1986, trial court order, and, (d) present counsel failed to review trial transcripts before he filed the instant petition to withdraw and failed to include in the “no merit letter” and “Anders brief’ the issues that appellant wished to have raised; (2) the trial court erred by dismissing the PCHA and PCRA petitions without appointing counsel to assist appellant in amending the petitions; and, (3) the trial court erred (a) in waiting four years to rule on appellant’s PCHA petition, (b) in refusing to enforce orders granting appellant’s requests for transcripts, (c) in failing to grant appellant’s requested relief regarding the September 16, 1985 trial court order, and, (d) in not properly notifying appellant of the summary dismissals of the PCHA and PCRA petitions.

. Our scope of review, when examining a post-conviction court’s grant or denial of relief is limited to determining whether the court’s findings were supported by the record and the court’s order is otherwise free of legal error. Commonwealth v. McClucas, 378 Pa.Super. 202, 548 A.2d 573 (1988). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id.

To be eligible for relief under the Post Conviction Relief Act, an appellant must plead and prove by a preponderance of evidence that his 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. Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989); 42 Pa.C.S. § 9543(a)(2)(h).

In establishing a claim of ineffectiveness an appellant must initially demonstrate that the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). Next, if appellant’s claim does have arguable merit, we must determine whether counsel’s failure to pursue the matter had some reasonable basis designed to serve the interests of his client. Id. Finally, if the record reveals that counsel was ineffective, it must be determined whether appellant has demonstrated that counsel’s ineffectiveness so prejudiced the appellant’s case that it is likely that the result would have been different absent the errors. Commonwealth v. Tyson, 363 Pa.Super. 380, 526 A.2d 395, appeal denied at 518 Pa. 618, 541 A.2d 745 (1987).

The burden of establishing ineffective assistance of counsel rests upon the appellant since counsel’s representation is presumed to be effective. Commonwealth v. Jones, 389 Pa.Super. 159, 566 A.2d 893 (1989). Appellant must demonstrate that counsel’s omission or commission was arguably ineffective and the likelihood that appellant was prejudiced as a result thereof. Id.

A claim of ineffectiveness of trial counsel must be raised at the first opportunity at which the counsel whose ineffectiveness is being challenged no longer represents the defendant. Commonwealth v. Miller, 388 Pa.Super, 7, 564 A.2d 975 (1989). “For the purposes of [the PCRA], an issue is waived if the petitioner failed to raise it and if it could have been raised ... on ... appeal or [in any] other proceeding actually conducted or in a prior proceeding actually initiated under [the PCRA].” 42 Pa.C.S. § 9544(b). Appellant must also prove by a preponderance of the evidence that the allegation of error has not been previously litigated. 42 Pa.C.S. § 9543(a)(3).

Initially, we note that since this is appellant’s second petition[ ] for post-conviction relief, it “will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Commonwealth v. Lawson, 519 Pa. 504, 513, 549 A.2d 107, 112 (1988); see also Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989) (applying Lawson standard of review to second or subsequent petitions filed under the PCRA). This standard is met if the petitioner can demonstrate either that the proceedings resulting in his [or her] conviction were so unfair that a miscarriage of justice which no civilized society can tolerate occurred or that he [or she] is innocent of the criminal charges.

Commonwealth v. Ryan, 394 Pa.Super. 373, 376, 575 A.2d 949, 950 (1990).

Pa.R.Crim.P. 1507(a) states, in pertinent part,

The [trial] judge shall promptly review the [PCRA] motion---- If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the motion ... [without a hearing!.]

The right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Box, 305 Pa.Super. 81, 451 A.2d 252 (1982). A hearing may be denied if a petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence. Id. A post-conviction petition may not be summarily dismissed, however, as “patently frivolous” when the facts alleged in the petition, if proven, would entitle the petitioner to relief. Id.

A defendant is only entitled to counsel during his or her first petition under the Post Conviction Relief Act. Pa. R.Crim.P. 1504(a).

Our review of the instant record reveals that although counsel was appointed to represent appellant during the pendency of his first post-conviction petition, there is nothing in the record to indicate that counsel performed any functions on behalf of appellant. In appellant’s instant PCRA he is requesting, inter alia, the right to appeal nunc pro tunc. Since it does not appear that appellant had the benefit of the assistance of counsel during his first post-conviction proceeding, and counsel was not appointed during the pendency of the instant PCRA proceeding, we will treat this appeal as if from the denial of a first PCRA petition. We find that it would constitute a waste of judicial resources to remand this case for the appointment of PCRA counsel and a new PCRA proceeding when appellant has presently raised all of the issues that he wants this Court to address. Hence, we will address the issues that appellant has raised.

Appellant first claims that PCHA counsel was ineffective for failing to amend appellant’s pro se PCHA petition, and, function as appellant’s counsel. However, appellant does not allege what should have been added to the PCHA petition and he does not state what counsel should have, but failed to do, in his capacity as appellant’s PCHA counsel. Therefore, appellant simply has not pled and proven by a preponderance of the evidence that the alleged ineffective assistance, in the circumstances of this particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Dukeman, supra; 42 Pa.C.S. § 9543(a)(2)(ii). Hence, we find this issue meritless.

Appellant’s second claim is that his counsel was ineffective for failing to appeal from the trial court’s September 21, 1990, order denying his PCHA petition without a hearing. Since appellant had the opportunity to raise any issues that he wished to in two prior appeals to this Court (as discussed, supra, he actually had three prior appeals but one was quashed as untimely), and he has now been given the opportunity to raise any remaining issues, we fail to see how he has been prejudiced by counsel’s omission. Since no prejudice occurred, we find this issue to be meritless. Commonwealth v. Tyson, supra.

Appellant’s third claim is that counsel was ineffective for failing to “request relief on appellant’s behalf due to the Commonwealth’s failure to show cause pursuant to an order of court dated September 16, 1986.” Appellant’s Brief at 17.

Our review of the record indicates that after appellant filed his first post-conviction petition the trial court issued an order stating, “A rule is granted upon the Commonwealth of Pennsylvania to show cause why a hearing should not be granted.” Trial Court Order, 9/15/86. The “hearing” was obviously a post-conviction petition hearing. Appellant simply makes a bald allegation that his counsel at the time was ineffective for failing to insure that the Commonwealth demonstrated that a hearing was unnecessary. Appellant does not aver that he was prejudiced by the failure to hold a hearing, and, he does not aver what points he would have argued at the hearing and how said argument would have advanced his chances of obtaining relief. Furthermore, appellant is presently getting the chance to raise any points that he has not raised in his prior appeals to this Court. Since appellant has not alleged prejudice or shown how he was prejudiced by counsel’s omission we find this issue to be meritless. Commonwealth v. Tyson, supra.

Appellant’s fourth claim is that his present appellate counsel was ineffective for failing to review “the pre-trial, trial and post-trial transcripts prior to his filing the ‘No-merit’ letter and Anders Brief. Further, counsel failed to include any of the issues the appellant wished to have raised.... ” Appellant’s Brief at 18.

Since appellant is now raising all of the issues that he wishes to raise we fail to see how he has been prejudiced by counsel’s omissions. Hence, we find this issue to be meritless. Commonwealth v. Tyson, supra.

Appellant’s fifth claim is that the trial court abused its discretion in “dismissing appellant’s first pro se PCHA and PCRA without first appointing counsel to assist appellant in the amending of the said petitions.” Appellant’s Brief at 20.

We first note that the trial court did appoint counsel to represent appellant at the time his PCHA petition was filed; however, it appears that counsel took no action on behalf of appellant. Regardless, appellant has not alleged that he was prejudiced by the trial court’s alleged omission and he has not alleged what points counsel could have raised if counsel had assisted in the amendment of the PCHA and PCRA petitions. Since appellant has shown no prejudice we find that the trial court’s alleged omission did not so undermine the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(i). Hence, this issue is meritless. Id. Furthermore, all of the issues that appellant wished to have raised have been raised in appellant’s two prior appeals to this Court and in the instant appeal.

Appellant’s sixth claim is that the trial court erred in failing “to grant appellant’s requested relief when the Commonwealth failed to show cause as ordered on September 16, 1986.” Appellant’s Brief at 24. Appellant is again referring to the trial court’s rule to show cause upon the Commonwealth to demonstrate why a post-conviction hearing should not be held regarding appellant’s March 27, 1986 PCHA petition. Since we have already determined, in appellant’s issue number three, supra, that appellant suffered no prejudice as a result of the failure to hold the PCHA hearing we can not find that the failure to hold the hearing 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)(f). Hence, this issue is meritless. Id.

Appellant’s seventh claim is that “the [trial] court held appellant’s first PCHA petition inordinate for (4) years.” [Sic] Appellant’s Brief at 25. Appellant is referring to the fact that his PCHA petition, his first post-conviction, was filed on March 27, 1986, but was not denied until September 20, 1990. Appellant does not aver if or how he was prejudiced by the delay. We find that the truth-determining process was not undermined in any way and we therefore find that this issue is without merit. 42 Pa.C.S. § 9543(a)(2)®.

Appellant’s eighth claim is that,

The [trial] court refused to enforce the orders entered on May 15, 1985 and January 13, 1989 whic [Sic] granted appellant’s requests for the transcribed notes of testimony. Appellant hereby incorporates all previous arguments herein and will use the said arguments as the basis for seeking relief on this [Sic] issues.

Appellant’s Brief at 26. This is appellant’s entire argument regarding this issue. Appellant has alleged no prejudice and we can detect none. Therefore, this issue is without merit. 42 Pa.C.S. § 9543(a)(2)®.

Appellant’s ninth claim is that “The [trial] court did not properly notify the appellant of the summary dismissals of the PCHA/PCRA petition as required in Pa.R.Crim.Proc. 1507(d)(2).” Appellant’s Brief at 26.

Pa.R.Crim.P. 1507(d)(2) states that when the trial court dismisses a post-conviction petition without a hearing it shall advise the petitioner by certified mail, return receipt requested, of the right to appeal from the final order disposing of the petition and of the time within which an appeal must be taken. Id. Appellant is averring that the trial court did not comply with the Rule. Since appellant is averring no prejudice, and no prejudice exists since appellant has had the opportunity to raise all issues that he desired in this appeal and in two prior appeals to this Court, we find this issue to be without merit. 42 Pa.C.S. § 9543(a)(2)(i).

In summary, we find all of appellant’s PCRA issues to be without merit and we therefore affirm the order of the trial court denying appellant’s PCRA petition.

We now turn to the petition to withdraw as counsel, filed by Joseph P. Burt, Esquire, appellant’s counsel in this appeal to this Court.

Before a motion to withdraw will be granted, there must be an independent review of the record by competent counsel. Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). Proof is required of each of the following:

(1) A “no-merit” letter by [PCRA] counsel detailing the nature and extent of his review.
(2) The “no-merit” letter by [PCRA] counsel listing each issue the petitioner wished to have reviewed;
(3) The [PCRA] counsel’s “explanation”, in the “no-merit” letter, of why the petitioner’s issues were meritless;
(4) The [PCRA] court conducting its own independent review of the record; and
(5) the [PCRA] court agreeing with counsel that the petition was meritless.

Id. at 393, 550 A.2d at 215.

On December 17, 1992 Mr. Burt did send appellant a “no-merit” letter detailing the nature and extent of his review; he included with the letter a copy of the appellate brief filed on behalf of appellant. The “no-merit” letter stated that counsel could find no issues that possessed merit. However, Mr. Burt failed to comply with Commonwealth v. Finley, supra, since he failed to raise each issue that appellant wished to have reviewed. Nevertheless, since we have already addressed all of appellant’s PCRA issues and found them to be without merit we see no reason why Mr. Burt’s petition to withdraw should not be granted. In summary, we affirm the July 9, 1992 trial court order denying appellant’s PCRA petition, and, we grant Mr. Burt’s petition to withdraw as counsel.

Order affirmed. Petition to withdraw as counsel granted.

      . We urge counsel to comply with the mandates of Commonwealth v. Finley, supra, in any future petitions to withdraw as counsel.


author: WIEAND, Judge:

text:
    644 A.2d 741
    ROYAL BANK OF PENNSYLVANIA, Appellant, v. Joseph B. SELIG and Tremayne Selig and Continental Bank, Appellees. ROYAL BANK OF PENNSYLVANIA v. Joseph B. SELIG and Tremayne Selig and Continental Bank. Appeal of CONTINENTAL BANK.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1994.
    Filed June 10, 1994.
    Reargument Denied Aug. 3, 1994.

      Stuart H. Savett, Ardmore, for Royal Bank.
    James W. Hennessey, West Conshohocken, for Continental Bank.
    Before WIEAND, HUDOCK and SAYLOR, JJ.
   WIEAND, Judge:

Royal Bank of Pennsylvania, the appellant, holds a judgment against Joseph and Tremayne Selig in an amount exceeding six million ($6,000,000.00) dollars. The Seligs are also indebted to Continental Bank for approximately fourteen million, eight hundred thousand ($14,800,000.00) dollars. On or about August 10, 1990, Royal Bank caused a writ of attachment to be issued on its judgment, and this was served on Continental Bank as garnishee. The object of the writ was a custodial account being maintained by the trust department of Continental Bank in which the Seligs, pursuant to agreement, had placed stocks, bonds and securities having a value of ten million, four hundred twenty thousand ($10,420,000.00) dollars. When the trial court subsequently dismissed Royal Bank’s writ of attachment, the bank appealed.

The facts were stipulated. They reveal that the present custodial account was created on or about January 17, 1990. Pursuant to the terms thereof, Continental Bank was to provide safekeeping for securities deposited by the Seligs. The bank was also to buy and sell securities as directed by the Seligs, collect the income therefrom and distribute the same as the owner and the custodian should agree from time to time. The owner, with the bank’s approval, could withdraw any security deposited under the agreement, and either party could terminate the agreement upon written notice to the other. The agreement contained no provision that securities deposited in the account were intended to be collateral for monies advanced by the Bank to the Seligs. Following execution of the custodial agreement, however, the Seligs agreed that the income from the stocks, bonds and other investments forming the res thereof was to be paid to Continental Bank to reduce the Seligs’ liability to said bank. These liabilities had arisen by direct loans to the Seligs and also as a result of surety agreements executed prior to 1990 in connection with loans made to corporate borrowers.

Pursuant to Pa.R.C.P. 3111(c), the writ of execution served upon Continental Bank contained language restraining it from delivering any property of the Seligs and from paying any debt to or for the Seligs. Despite this language, Continental Bank sold securities which were a part of the custodial account and applied the proceeds on account of the Seligs’ indebtedness to it. Thereafter, the trial court granted a petition by Continental Bank to dismiss the writ of execution and refused to enforce the same. The court also dismissed a petition to hold Continental Bank in contempt for violating the restraining order contained in the writ of execution. Royal Bank appealed.

The first issue is whether Royal Bank’s attachment was invalid because the sheriff failed to take physical possession of the stocks, bonds and other securities forming a part of the custodial account. This argument by appellee is based on 13 Pa.C.S. § 8317 (1979), which, at the commencement of the proceedings in this case, provided as follows:

§ 8317. Attachment or levy upon security
(a) Seizure required. — No attachment or levy upon a security or any share or other interest evidenced thereby which is outstanding shall be valid until the security is actually seized by the officer making the attachment or levy but a security which has been surrendered to the issuer may be attached or levied upon at the source.
(b) Remedies available. — A creditor whose debtor is the owner of a security shall be entitled to such aid from courts of appropriate jurisdiction, by injunction or otherwise, in reaching such security or in satisfying the claim by means thereof as is allowed at law or in equity in regard to property which cannot readily be attached or levied upon by ordinary legal process.

In the instant case, the stocks, bonds and securities were not in the possession of the debtors but in the possession of Continental Bank, an intermediary. Therefore, Royal Bank proceeded by attachment under Pa.R.C.P. 3111. Subsections (b), (c) and (d) of this Rule are as follows:

(b) Service of the writ upon the garnishee shall attach all property of the defendant which may be attached under these rules which is in the possession of the garnishee. It shall also attach all property of the defendant which may be attached under these rules and which comes into the garnishee’s possession thereafter until judgment against him even though no such property of the defendant was in his possession at the time of service.
Note:
For limitations on the power to attach tangible personal property see Rule 3108(a).
(c) Service of the writ upon the garnishee shall also subject him to the mandate and injunctive orders of the writ restraining him from paying any debt to or for the account of the defendant and from delivering any property of the defendant which may be attached under these rules to anyone except the sheriff or otherwise disposing thereof until further order of the court or discontinuance or termination of the attachment.
(d) Violation of the mandate and injunctive orders of the writ may be punished as a contempt.

Under these provisions, even if Royal Bank’s execution had not been perfected because of Continental Bank’s continued possession of the Seligs’ stocks, bonds and securities, it is clear that Continental Bank could no longer deal with the Seligs’ investments as it had prior to the attachment. Indeed, the terms of the writ served upon Continental Bank expressly enjoined the garnishee-intermediary “from paying any debt to or for the account of the defendants] and from delivering any property of the defendants] or otherwise disposing thereof.” When the' garnishee-intermediary nevertheless sold securities and applied the proceeds on account of debts owed by the Seligs to said bank, it acted at its peril.

The Supreme Court, speaking on the effect of a writ of execution, has said:

“The service of an attachment execution has the effect of an equitable assignment of the thing attached. It puts the garnishee in the relation to the attaching creditor which he had sustained to his former creditor. He may make the same defense to the attachment by evidence of set-off or of other equities that he might have made if sued by his original creditor.”

Aarons v. Public Serv. Bldg. & Loan Ass’n, 318 Pa. 113, 117, 178 A. 141, 142 (1935), quoting Roig v. Tim, 103 Pa. 115, 117 (1883). A creditor’s right to attach a general bank account of its debtor is subject to the garnishee-bank’s right to set-off any matured obligation owed to it by its depositor. Aarons v. Public Serv. Bldg. & Loan Ass’n, supra. See also: Gluth Bros. Const., Inc. v. Union Nat’l Bank, 166 Ill.App.3d 18, 116 Ill.Dec. 365, 369, 518 N.E.2d 1345, 1349 (1988); United States v. First Nat’l Bank & Trust Co., 695 F.Supp. 194, 196 (W.D.Pa.1988); General Elec. Credit Corp. v. Tarr, 457 F.Supp. 935, 937 (W.D.Pa.1978); Allied Sheet Metal Fabricators v. Peoples Nat’l Bank of Washington, 10 Wash.App. 530, 518 P.2d 734, 739 (1974). It is generally established that “a bank has a general lien upon or right of set off against all moneys or funds in its possession belonging to a depositor to secure the payment of the depositor’s indebtedness to it ...” 5A Michie on Banks and Banking § 114. The Uniform Commercial Code does not modify or suspend this aspect of the common law. Pittsburgh Nat’l Bank v. United States, 657 F.2d 36, 39 (3rd Cir.1981). Immediately upon the maturity of a debt owed by a depositor, the bank's right to set-off, by operation of law, extinguishes the depositor’s rights to the account. Pittsburgh Nat’l Bank v. United States, supra at 38. Set-off is not overridden by the filing or service of attachment execution or garnishment. General Elec. Credit Corp. v. Tarr, supra at 937. In effect, the garnishee-bank’s common law right to set-off gives it a right to self-help that takes priority over other creditors claiming a right to the funds on deposit. Walter v. Nat’l City Bank of Cleveland, 42 Ohio St.2d 524, 330 N.E.2d 425, 427-428 (1975).

Set-off, however, is appropriate only where certain conditions are met. There must be mutuality of obligation between the bank and the depositor; the funds against which set-off is exercised must belong to the depositor; the funds must be deposited with the bank into a general account; and, the debt owed by the depositor to the bank must be mature. See: Firstar Eagan Bank v. Marquette Bank Minneapolis, 466 N.W.2d 8, 12 (Minn.App.1991); Federal Dep. Ins. Corp. v. Pioneer State Bank, 155 N.J.Super. 381, 382 A.2d 958, 962 (1977). The dispute in this case is whether the custodial account was a general account. Did Continental Bank have a right to set-off the Seligs’ debt against stocks, bonds and securities in possession of the bank’s trust department pursuant to a written agreement which, by its terms, established no right of set-off in the custodian?

Generally, funds which have been deposited into a “special” account cannot be set-off against a debt owed from the depositor to a garnishee-bank. See: R.M. Bourne & Co. v. Peoples Union Bank & Trust Co., 404 Pa. 519, 526, 172 A.2d 814, 818 (1961); In Re Gordon, 319 Pa. 367, 371, 179 A. 592, 593 (1935). See also: Cotton States Mut. Ins. Co. v. Citizens & Southern Nat’l Bank, 168 Ga.App. 83, 308 S.E.2d 199, 203 (1983). “A bank cannot knowingly accept a deposit for a particular purpose and then act to defeat the purpose for which that deposit was made.” American Sec. Bank v. Kaneshiro, 67 Haw. 354, 688 P.2d 254, 255 (1984). A garnishee-bank, therefore, cannot exercise its right to set-off where it holds money or property belonging to a third party, In Re Gordon, supra 319 Pa. at 371, 179 A. at 593, or where the depositor has informed the bank that the contents of an account have been designated to fulfill a specific purpose. American Sec. Bank v. Kaneshiro, supra; Capital Servs., Inc. v. Dahlinger Pontiac-Cadillac, Inc., 10 Kan.App.2d 328, 699 P.2d 549, 551 (1985). Additionally, where the bank maintains an account in which its right to detain the contents is subject to control, Hudson United Bank v. House of Supreme, Inc., 149 N.J.Super. 153, 373 A.2d 438, 440 (1977), or where an account is controlled by an agreement through which the parties have demonstrated that a right to set-off had not been intended, 5A Michie on Banks and Banking § 118a, the account is considered “special” and no right to set-off exists. Where a “special” account exists, the bank is generally acting as a bailee or trustee. Coyle v. Pan Amer. Bank of Miami, 377 So.2d 213, 216 (Fl.App.1979). When an account has some characteristics consistent with a “special” as well as a “general” account, it is most important to consider the parties’ intent. If the parties have indicated that the right to set-off is preserved, the account is not considered “special.” Hudson United Bank v. House of Supreme, Inc., supra 149 N.J.Super. 153, 373 A.2d at 441-442.

The custodial account in this case was, in effect, a trust account. Pursuant to agreement, Continental Bank was to provide safekeeping for stocks, bonds and securities deposited by the Seligs, buy and sell securities as directed by the Seligs, collect the income therefrom and distribute it as agreed by the parties, and deliver to the Seligs any or all securities upon request by the Seligs. This was not a general account; it was an account established for a special purpose. This intent of the parties becomes apparent from a reading of their agreement. The absence of any right, express or implied, to use the principal of the account to satisfy separate liabilities by the Seligs to Continental Bank confirms this intent.

Continental Bank also contends that it has a security interest in the stocks, bonds and securities forming the res of the custodial account. As evidence of personal loans made by Continental to the Seligs, the Seligs executed non-discount notes. These notes contained a provision as follows:

Borrower agrees that the Bank shall have a lien upon and a security interest in the Collateral to secure the payment of this Note and of all other obligations due or to become due or that may be hereafter contracted or acquired of Borrower (including Borrower and any other person) to Bank, whether direct or contingent, and whether incurred before or after making, transfer or negotiation of this Note to the holder hereof, and whether such holder be the payee or transferee, solely or jointly and severally with others, and whether or not such obligations or liabilities of Borrower to Bank are primary, secondary, direct, contingent, sole, joint or several and all costs and expenses including but not limited to reasonable attorneys fees however incurred by Bank in connection with any of such obligations or liabilities (“Liabilities”).

Collateral was defined as follows:

The term “Collateral” as used herein, shall include all securities, tangible and intangible property, accounts, claims and evidences or representations thereof (including all cash, stock and other dividends and other rights to subscribe for securities incident to,, declared or granted in connection with such property), which Collateral has been or is hereby delivered, pledged, assigned and transferred to Bank and which is more fully described in a certain schedule in Bank’s possession.
“Collateral” shall also include all tangible or intangible property of any kind, including not only such property, title and ownership of which is in Borrower, but also such property as to which Borrower has any power of pledge, hypothecation or other disposition, which Bank may now or hereafter have in its possession or control, or which is in transit to it, in any capacity whatsoever. Without limiting the generality of the foregoing, such property shall include deposit accounts, savings accounts, securities, bonds, life insurance policies, evidences of indebtedness, accounts receivable, mortgages, titles to motor vehicles, real estate, merchandise and all other property of any nature, similar or dissimilar, and all proceeds and increments thereof.

The surety agreements, pursuant to which the Seligs became guarantors of loans to various corporate borrowers, contained a term which provided that Continental Bank should

have a continuing lien upon all monies, deposits, stocks, bonds and all other personal property, tangible or intangible, similar or dissimilar thereto, any time coming into possession of the Bank belonging to the Undersigned, as security for the obligations of [the] Undersigned hereunder.

Appellant contends that the security interests created by these agreements were never perfected because financing statements were never filed in any public office. Continental Bank argues, on the other hand, that its security interests were perfected by possession of the securities.

Generally, a financing statement must be filed in order to perfect a security interest. 13 Pa.C.S. § 9301(a). An exception to this rule provides that perfection can occur when the secured party takes possession of certain collateral. 13 PaC.S. § 9301(a)(1); 13 Pa.C.S. § 9305. “A security interest in letters of credit and advices of credit (section 5116(b)(1)), goods, instruments, money, negotiable documents or chattel paper may be perfected by the secured party taking possession of the collateral.” 13 Pa.C.S. § 9305 (emphasis added). Because “instruments” includes investment securities, see: 13 Pa.C.S. § 9105 and 13 Pa.C.S. § 8102, a perfected security interest in stocks and bonds may be achieved by possession of the collateral.

The possession necessary for perfection of a security interest is akin to that required for a pledge. Funding Sys. Asset Management Corp. v. Chemical Business Credit Corp., 111 B.R. 500, 516 (W.D.Pa.1990). See also: Kendrick v. Headwaters Prod. Credit Corp., 362 Pa.Super. 1, 523 A.2d 395 (1987). For a pledge to exist, “[t]he pledgor must relinquish possession of the property and unequivocally deliver it to the pledgee in such a way that the pledgee has absolute dominion and control over the property so as to absolutely deprive the pledgor of any control over it.” Funding Sys. Asset Management Corp. v. Chemical Business Credit Corp., supra at 517. See also: In Re Dolly Madison Indus., Inc., 351 F.Supp. 1038, 1042 (E.D.Pa.1972), aff'd, 480 F.2d 917, and, 480 F.2d 918 (1973).

Here, it cannot seriously be denied that Continental Bank had possession of the stocks, bonds and securities which the Seligs delivered to it pursuant to the custodial agreement. Its possession of the securities was sufficient to put third parties on notice that Continental Bank had an interest in these assets, and inquiry of Continental Bank would have disclosed the nature of that interest. Its possession was not altered by provisions in the custodial agreement which permitted the Seligs to withdraw securities upon request or to terminate the agreement upon written notice. It must be concluded, therefore, that the security interest of Continental Bank, which had been created by the Seligs’ notes and surety agreements, was perfected as to securities held in its possession at the time of the attachment.

The validity of the security interest was not impaired by rights reserved to the Seligs in the written, custodial agreement. This is confirmed by the provisions of 13 Pa.C.S. § 9205, which are as follows:

§ 9205. Use or disposition of collateral without accounting permissible
A security interest is not invalid or fraudulent against creditors by reason of liberty in the debtor to use, commingle or dispose of all or part of the collateral (including returned or repossessed goods) or to collect or compromise accounts or chattel paper, or to accept the return of goods or make repossessions, or to use, commingle or dispose of proceeds, or by reason of the failure of the secured party to require the debtor to account for proceeds or replace collateral. This section does not relax the requirements of possession where perfection of a security interest depends upon possession of the collateral by the secured party or by a bailee.

Thus, even though the Seligs had the right to withdraw or replace securities and did in fact withdraw and replace securities from time to time, the validity of Continental Bank’s security was not thereby impaired. Similarly, the validity of the lending bank’s security interest was not impaired by the provision in the custodial agreement that such agreement could be terminated by either party to the agreement. Although the custodial agreement could be terminated by the Seligs, their right to reclaim possession of the stocks, bonds and other securities forming a part thereof was subject to the lien of Continental Bank which had been created by the loan agreements which they had signed in favor of the bank. An attaching creditor of the Seligs could acquire no greater rights to these securities than those enjoyed by the Seligs. See: Tremont Township Sch. Dist. v. Western Anthracite Coal Co., 381 Pa. 276, 281, 113 A.2d 234, 237 (1955); In Re Trainer’s Estate, 166 Pa.Super. 472, 475, 71 A.2d 833 (1950).

Where a secured creditor has perfected its interest in property of the debtor, its rights to that property are superior to subsequent lien creditors. 13 Pa.C.S. § 9301(d). By taking possession of the Seligs’ investment securities, Continental Bank perfected a security interest in those securities and gained rights superior to Royal Bank, an attaching creditor. As a secured creditor, Continental could liquidate the collateral it held to satisfy the secured obligations of the Seligs. 13 Pa.C.S. § 9504.

Because Continental Bank had a perfected security interest in the stocks, bonds and other securities forming a part of the Seligs’ custodial account and because Continental Bank’s lien was superior to the rights of the attaching creditor, Royal Bank, we will affirm the order of the trial court which dismissed the attachment and refused to hold Continental Bank in contempt of court. Although Continental Bank may have acted in haste by disposing of securities after service of the writ of execution upon it, its superior rights to such securities rendered its conduct harmless. Because each court is the exclusive judge of contempts against its process, East & West Coast Serv. Corp. v. Papahagis, 344 Pa. 188, 190, 25 A.2d 341, 342 (1942), it cannot be said that it was an abuse of discretion for the trial court under the circumstances of this case to find that Continental Bank’s conduct was not contemptuous.

Orders affirmed.

      . An earlier account had been created in December, 1986. After January 17, 1990, however, all assets became a part of and were held pursuant to the terms of the later agreement.

      . The statute was amended on July 9, 1992, effective in one year. 13 Pa.C.S. § 8317 (Supp.1992).


text:
    644 A.2d 747
    Jacquelyn C. WARNER v. Dean POLLOCK, Appellant.
    Superior Court of Pennsylvania.
    Argued April 5, 1994.
    Filed June 30, 1994.

      P. Louis Derose, III, Greensburg, for appellant.
    Annaliese P. Masser, Greensburg, for appellee.
    Before McEWEN, DEL SOLE and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order dismissing appellant’s “appeal” from a recommended order of support. Appellant, in three numbered issues, essentially argues that Westmoreland County Rule W1910.ll is in conflict with Pa.R.Civ.P. 1910.11 and is, therefore, invalid in that it requires a party to recite reasons for an “appeal” from a recommended support order whereas Pa.R.C.P. 1910.11 allows a de novo hearing as of right. We agree, and reverse.

On April 20, 1992, appellant was ordered to pay $109 per month support to appellee for the support of the parties’ minor child. Subsequently, appellant filed a petition to terminate support and appellee filed a petition to increase support. Both petitions were denied at a domestic relations hearing and on May 10, 1993, appellant was ordered to continue paying support in the sum of $109 per month. Appellant filed an “appeal” from this order under Westmoreland County Local Rule W1910.ll, but objected to stating any reasons for the “appeal” as was required under the rule. In response, the office of Child Support Advocates, on behalf of appellee, filed a motion to dismiss appellant’s “appeal” due to appellant’s failure to state the reasons for the appeal as required by Rule W1910.ll. Argument was scheduled in which appellant’s counsel argued that the Westmoreland rule conflicted with Pa.R.Civ.P. 1910.11 and that appellant should not be required to state any reasons for “appealing” the prior order. The court responded by filing an order which deemed the appeal “perfected” providing that appellant file his reasons for the appeal within ten days. Appellant did not file any reasons and an order was entered dismissing the “appeal.” This appeal from the court’s order followed.

The Pennsylvania Rules of Civil Procedure establish two separate procedures for expediting support matters. Rule 1910.10 indicates that an action in support will proceed under the provisions of Rule 1910.11 unless the court by local rule adopts the alternative hearing procedures set forth in Rule 1910.12. Westmoreland County, by passage of Rule W1910.ll and by failure to adopt the alternative hearing procedure of Rule 1910.12, ostensibly is governed by the provisions of Pa.R.Civ.P. 1910.11. Under this rule, a support matter proceeds by conference with a hearing officer who then, among other things, makes a recommendation of a support order. The court then receives the recommendation and may, without a hearing, enter an order upon the recommendation. Either party may then demand á hearing before the court which shall be de novo. The relevant provisions of Pennsylvania Rule of Civil Procedure 1910.11 state:

(f) If an agreement for support is not reached at the conference, the court, without hearing the parties, may enter an appropriate order after consideration of the recommendation. The order shall state that any party may within ten days after the mailing of the notice of entry of the order file a written demand with the domestic relations section for a hearing before the court.
(i) If the court does not enter an order under subdivision (d) or (f) within five days of the conference, or if an order is entered and a demand for a hearing before the court is filed, there shall be a hearing de novo before the court ...

The Westmoreland version of Rule 1910.11 states:

b. A fee in the amount of $50.00 shall be paid to the Domestic Relations Office when an appeal from a recommended order is filed.
c. A copy of the appeal shall be sent by the party taking the appeal to the opposing party and/or his or her counsel. A cross-appeal may be filed within ten (10) days of receiving notice of the appeal.
d. Each appeal shall set forth the date of the order from which the appeal is taken and the errors of fact, law, or mathematical computation that are the reasons for the appeal.
e. Appeals not filed in compliance with this rule are subject to dismissal upon motioned (sic) filed by a party or the Court on its own motion.

Westmoreland County Rule W1910.ll is clearly inconsistent with the Pennsylvania version of that rule in several respects. First, under the Pennsylvania Rule, either party may demand a hearing before the court, 1910.11(f), which hearing shall be de novo. Rule 1910.11(i). The rule does not require that a party state any grounds for the demand for a hearing, nor are any restrictions placed upon one’s right to a de novo hearing.

Secondly, under the rule one does not request a hearing before the court, but rather one is empowered to “demand” a hearing before the court. The wording clearly recognizes that one is entitled to a hearing before the court if one so chooses. Of course, when it is considered that the obligor, under a support determination, is being ordered to pay a sum of money, the provision of a hearing would seem necessary to satisfy due process concerns. What may be lost by the provision of a conference with a hearing officer and the recommendation of a support order is the sense of entitlement to a true court hearing prior to the issuance of an order of court. Under the present procedure a conference in front of a hearing officer is used initially because “in a large percentage of cases the parties will agree upon an amount of support ..., thus dispensing with a judicial hearing.” Explanatory Comment to Rule 1910.11. Thus, the conference system lessens what would otherwise be an undue burden upon the judicial system by providing what is essentially a de facto voluntary dispute resolution or mediation system which will, in many cases, eliminate the need to use judicial resources. However, the provision of the conference system probably should not be thought of as eliminating the need for, or the elimination or modification of one’s right to, a court hearing.

Thirdly, under the Pennsylvania rule one demands a hearing, one does not file an appeal. This may sound like an exercise in semantics but an “appeal” is very different in nature than a de novo hearing. A de novo hearing is “full consideration of the case anew.” D’Arciprete v. D'Arciprete, 323 Pa.Super. 430, 470 A.2d 995 (1984). “The reviewing body is in effect substituted for the prior decision maker and redecides the case.” Commonwealth v. Gussey, 319 Pa.Super. 398, 466 A.2d 219, 222 (1983). An appeal connotes an assertion of specific error, and an “appeal” to the higher court to correct that error or review the lower court’s decision. To the extent the Westmoreland rule creates an impression that the “appeal” to the court is limited in scope to the reasons stated when taking the “appeal,” it is inconsistent with Rule 1910.11 and should not control.

The Westmoreland rule is further inconsistent in that it allows for a “cross-appeal” by the other party thereby suggesting or implying that if the non-“appealing” party does not file a “cross-appeal” he or she may be precluded from asserting error below or advocating a different support obligation than the one reached by the hearing officer. However, the filing of a “cross-appeal” would be unnecessary if a de novo hearing is taking place. Once one of the parties demanded a hearing each would be entitled to litigate as if it were the first proceeding. To the extent a litigant in Westmoreland County who does not file a “cross-appeal” is limited with regard to the evidence or arguments which can be presented in the “appeal” hearing due to the failure to file a “cross-appeal” the rule abridges that litigant’s rights under the Pennsylvania rule.

In Pennsylvania, local rules of court are valid to the extent they do not conflict with the Pennsylvania Rules of Civil Procedure. Ricci v. Ricci, 318 Pa.Super. 445, 465 A.2d 38 (1983). A local rule which abridges, enlarges or modifies substantive rights of the litigants will be found to be invalid. Miller v. Hild, 303 Pa.Super. 332, 449 A.2d 714 (1982). We must conclude that the Westmoreland County Rule W1910.ll, by requiring a statement of reasons for appeal from a recommended order, in the least modifies and possibly abridges a litigant’s right to a de novo hearing granted under Pa.R.Civ.P. 1910.11. As we stated in Groner v. Groner, 328 Pa.Super. 191, 476 A.2d 957 (1984), “[t]he rule [allowing a de novo hearing] is directive, not elective, and appellant is entitled to his day in court.” Id., 476 A.2d at 959. The Westmoreland rule is inconsistent with the Pennsylvania Rule in that it requires of a litigant more than the Pennsylvania rules do. Further, to the extent one can be denied a de novo hearing due to noncompliance, it abridges that right upon grounds not found in the Pennsylvania rule.

We are also concerned that the Westmoreland rule, as it is currently drafted, could create misperceptions of what is to take place should a party demand a de novo hearing. First, we must agree with appellant that under Pa.R.Civ.P. 1910.11 a litigant has an absolute right to his/her day in court should it be desired. Second, that hearing shall be de novo and not limited in scope. Third, there would be no need for the demanding party’s opponent to also make a demand for a hearing or take an “appeal” from the recommended order. To the extent Westmoreland County Rule W1910.ll is inconsistent with these points the rule is invalid.

We acknowledge the trial court’s position that the Westmoreland rule benefits litigants by alerting the court to possibly complicated cases or ones which would require a greater amount of time than average. Alerted to these matters the court can schedule hearings in a more efficient manner. This may be true, however, Pa.R.Civ.P. 1910.11(j)(l) also allows litigants to move the court for a separate listing for these very same reasons.

In light of the above, we conclude that it was error to dismiss appellant’s request for a de novo hearing.

Order reversed, remanded for a de novo hearing. Jurisdiction relinquished.

      . We quote here the text of the rule provided to us by appellant in his brief. This version of the rule was effective July 1, 1992, and is presumably the version in effect at the time in question. The latest version of Rule W1910.ll, effective April 1, 1994, is worded somewhat differently in subparagraph c, but is virtually identical in all relevant aspects.

      . The Westmoreland rule does not indicate what constitutes sufficient reasons for appealing a recommended order, nor does it indicate that the appeal is “as of right.” However, by requiring the stating of reasons the rule at least creates an impression that the reasons must be valid or sufficient under some unknown standard in order to "appeal” from the recommended order thereby raising questions as to what would occur should there be a difference of opinion between the parties, or a party and the court, as to the legitimacy of the reasons for the appeal. However, by allowing a party to demand a de novo hearing and by not requiring a party to state grounds for such request, the state rules essentially allow- a party his or her day in court for any reason important enough to make the party demand such.

      . This is not to say that the Westmoreland Rule cannot ask of its litigants to set forth the general reasons for demanding a hearing. However, such a provision may have to be set forth in elective fashion, dismissal for failure to comply is improper.