2003 September

Theresa A. Himes v. Charles H. Himes Appeal Of: John E. Nagurney, Esquire No. 00004WDA03 2003 PA Super 370 Filed: 9/30/2003
	Appeal From The Judgment Of Sentence In The Court Of Common Pleas Of Crawford County, Civil Division, Nos. AD 2002-220 & 523
Before: HUDOCK, BENDER and TAMILIA, JJ.
Opinion by: TAMILIA, J.
John E. Nagurney, Esquire, appeals from the December 3, 2002 judgment of sentence imposed after he was found in direct criminal contempt and fined $500 for having failed to appear at his client’s scheduled conciliation hearing. Upon reconsideration, the fine was reduced to $200.

Commonwealth Of Pennsylvania, Appellee v. Todd Clinger, Appellant No. 00788MDA02 2003 PA Super 368 Filed: 9/29/2003
	Appeal From The Judgment Of Sentence Entered April 19, 2002, In The Court Of Common Pleas Of Snyder County, Pennsylvania, Criminal, At No. CR-95-2001
Before: MUSMANNO, GRACI, JJ., and McEWEN, P.J.E.
Opinion by: McEWEN, P.J.E.
Dissenting Opinion by: GRACI, J.
Appellant, Todd J. Clinger, appeals from the judgment of sentence to serve a sentence of from twenty years to forty years imprisonment, which was imposed by the trial judge following his guilty plea to the crime of conspiracy to commit third degree murder. We are constrained to vacate the judgment of sentence, and remand this case for further proceedings.

Commonwealth Of Pennsylvania, Appellee V. Brooks W. Allen, Appellant No. 01385MDA02 2003 PA Super 367 Filed: 9/29/2003
	Appeal From The Order Entered August 5, 2002 In The Court Of Common Pleas, Criminal Division York County, No. 4207 C.A. 1997
Before: ORIE MELVIN, TODD, and TAMILIA, JJ.
Opinion by: TODD, J.
Brooks W. Allen appeals the order entered August 5, 2002 by the York County Court of Common Pleas dismissing his petition for relief under the Post Conviction Relief Act (“PCRA”). We affirm.

Margaret Leshko, Appellee V. John Leshko, Appellant No. 01752WDA02 2003 PA Super 369 Filed: 9/29/2003
	Appeal From The Order Entered October 8, 2002, In The Court Of Common Pleas Of Luzerne County, Civil Division At No. 6845-C Of 2002
Before: JOYCE, MUSMANNO and CAVANAUGH, JJ.
Opinion by: JOYCE, J.
John Leshko, Appellant, appeals from the protection from abuse (PFA) order entered October 8, 2002, by the Court of Common Pleas of Luzerne County. Upon review, we vacate the order and remand for proceedings consistent with this memorandum.

Commonwealth Of Pennsylvania v. Alfonso F. Carter No. 00912MDA02 Petition for Reargument Granted 12/5/2003 Filed: 9/26/2003
The Opinion by President Judge Emeritus McEwen and the Dissenting Opinion by Judge Graci filed September 26, 2003, have been withdrawn. The application for reargument was granted on December 5, 2003

K.B. II, K.B. And B.B. V. C.B.F. No. 00893WDA02 2003 PA Super 364 Filed: 9/25/2003
	Appeal From The Order Entered April 25, 2002 In The Court Of Common Pleas, Civil Division Armstrong County, Nos. 1999-0250 And 2000-1113
Before: TODD, BENDER, and KELLY, JJ.
Opinion by: TODD, J.
C.B.F. (“Mother”), biological mother of K.M.B., III, (“Child”), appeals the Order entered April 25, 2002, in the Court of Common Pleas of Armstrong County awarding full custody of Child to Child’s paternal grandparents, B.B. and K.B. (“Grandparents”). For the reasons that follow, we reverse and remand.

Commonwealth Of Pennsylvania V. Kwasi Husani Johnson No. 01329MDA02 2003 PA Super 365 Filed: 9/25/2003
	Appeal From The Judgment Of Sentence July 30, 2002, In The Court Of Common Pleas Of Cumberland County, Criminal Division At No. 10-1466 CRIMINAL TERM.
Before: JOHNSON, LALLY-GREEN and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Dissenting Opinion by: JOHNSON, J.
Appellant Kwasi Husani Johnson appeals the judgment of sentence imposed following his conviction of Unlawful Possession of a Schedule I Controlled Substance (phencyclidine), 35 P.S. ง 780-113(a)(16). Appellant contends that the trial court erred in refusing to suppress evidence of contraband seized during an encounter with a Pennsylvania State Trooper. Upon review, we affirm the judgment of sentence.

State Farm Mutual Automobile Insurance Company V. Sandra Rizzo And David Rizzo Appeal Of: Sandra Rizzo No. 00667EDA02 Petition for Reargument Denied 12/2/2003 Filed: 9/24/2003
	Appeal From The Order Dated January 31, 2002, In The Court Of Common Pleas Of Philadelphia County Civil Division At No. 4044 January Term, 2001
Before: FORD ELLIOTT, LALLY-GREEN, AND KELLY, JJ.
Opinion by: FORD ELLIOTT, J.
This is an action for declaratory judgment brought by State Farm Ins. Co. (“State Farm”) and eventually presented to the court on joint stipulated facts. Instead of oral argument, both parties filed trial briefs. On January 31, 2002, the trial court, the Honorable Flora Barth Wolf, entered an order essentially granting State Farm’s complaint for declaratory relief. Sandra Rizzo (“daughter”) filed this timely appeal. For the reasons that follow, we vacate the order entering judgment in favor of State Farm and enter judgment in favor of insureds.

Sharmetha Smith And Vanessa Smith V. Enterprise Leasing Company Of Philadelphia T/A Enterprise Rent-A-Car, Reginald Drummond And Evangeline Drummond Appeal Of: Enterprise Leasing Company Of Philadelphia, T/A Enterprise Rent-A-Car No. 03232EDA02 2003 PA Super 362 Filed: 9/24/2003
	Appeal From The Order Dated October 10, 2002 In The Court Of Common Pleas Of Philadelphia County Civil Division At March Term, 1999, No. 1795.
Before: DEL SOLE, P.J., JOHNSON and BECK, JJ.
Opinion by: BECK, J.
This is an appeal from the grant of partial summary judgment in favor of plaintiffs-appellees Sharmetha Smith and Vanessa Smith and against defendant-appellant Enterprise Leasing Company of Philadelphia, t/a Enterprise Rent-a-Car. The issue is whether Enterprise, a self-insured entity, must pay to the Smiths, renters of an Enterprise vehicle, uninsured motorist (UM) benefits pursuant to the terms of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. งง 1701-1799.7 (Purdon 1996). The trial court held that Enterprise owed such coverage to the Smiths as a matter of law. We disagree, and reverse.

Commonwealth Of Pennsylvania V. Colleen Wood No. 02216EDA01 2003 PA Super 358 Filed: 9/23/2003
	Appeal From The Judgment Of Sentence June 20, 2001, Court Of Common Pleas Of Philadelphia County, Criminal Division At No. MR 01-005036, SU 01-03-007738-01.
Before: JOHNSON, FORD ELLIOTT, JOYCE, STEVENS, ORIE MELVIN, LALLY-GREEN, BENDER, BOWES, and GRACI, JJ.
Opinion by: JOHNSON, J.
Dissenting Opinion by: STEVENS, J.
Colleen Wood appeals the judgment of sentence imposed following her conviction of underage drinking. Ms. Wood contends that police stopped her illegally, without reasonable suspicion that she was engaged in criminal activity. The District Attorney for Philadelphia County asks this Court to conclude that it was reasonable for a Pennsylvania State Trooper, assigned as a liquor enforcement officer, to suspect that a seventeen-year old sitting in a bar was engaged in criminal activity where the only observation put forth by the Commonwealth to support such suspicion was that, from the arresting officer’s experience, the minor “looked to be under the age of 21.” For an investigative detention to comport with constitutional minimums, the law requires that the suspected criminal activity must be linked with the officer’s observation of suspicious or irregular behavior of the particular individual involved. Here, the enforcement officers possessed absolutely no evidence, nor had they observed any culpable conduct involving Colleen Wood, prior to her alleged inculpatory declaration overheard by one of the officers. We believe that the detention of Ms. Wood was not justified by reasonable suspicion and that, accordingly, her alleged confession of underage drinking is not admissible at trial. Accordingly, we vacate the judgment of sentence, reverse the conviction and remand.

Commonwealth Of Pennsylvania V. Andrew Byrne No. 03868EDA02 2003 PA Super 361 Filed: 9/23/2003
	Appeal From The Order Entered November 20, 2002, In The Court Of Common Pleas Of Chester County, Criminal Division, No. 3256;91.
Before: STEVENS AND BOWES, JJ. AND MCEWEN, P.J.E.
Opinion by: BOWES, J.
Dissenting Opinion by: McEWEN, P.J.E.
Andrew Byrne appeals pro se from the November 20, 2002 order denying him PCRA relief. We conclude that Appellant voluntarily waived his statutory right to credit for time served and affirm.

Commonwealth Of Pennsylvania, Appellee V. George Burkhardt, Appellant No. 01618MDA01 2003 PA Super 357 Filed: 9/22/2003
	Appeal From The Order Denying Post Conviction Relief Entered September 13, 2002, Court Of Common Pleas, Lancaster County, Criminal Division At No. 0407-1989.
Before: DEL SOLE, P.J., JOHNSON, HUDOCK, MUSMANNO, LALLY-GREEN, KLEIN, BENDER, BOWES, GRACI, JJ.
Opinion by: JOHNSON, J.
Concurring Opinion by: KLEIN, J.
On this appeal, we are asked to determine whether the Commonwealth’s failure to disclose a material witness’s subjective expectation of leniency in exchange for that witness’s testimony results in the denial of due process warranting a new trial. We conclude that the supposed understanding of the witness, if established, would be relevant to that witness’s credibility and therefore material. Nevertheless, on the facts presented here, we conclude, had the expectation of leniency been presented to the jury, that it would not have raised a reasonable probability that the result of the trial would have been different. Accordingly, we determine that a new trial is not warranted, and we affirm the denial of post-conviction collateral relief.

Commonwealth Of Pennsylvania, Appellee Vs. Eric Jetson Lyons, Appellant No. 01210WDA02 2003 PA Super 360 Filed: 9/22/2003
	Appeal From The Judgment Of Sentence January 30, 2002 In The Court Of Common Pleas Of Erie County Criminal, No. 852 Of 2001
Before: BOWES, GRACI, and KELLY, JJ.
Opinion by: KELLY, J.
In this direct appeal, Appellant, Eric Jetson Lyons, challenges his judgment of sentence entered in the Erie County Court of Common Pleas, following his convictions related to the kidnapping, rape, and attempted murder of an eight-year-old girl. Specifically, Appellant asks us to decide, inter alia, whether 42 Pa.C.S.A. ง 5985.1, the Tender Years Statute, is unconstitutional on its face or as applied during his trial. We hold that the Tender Years Statute is constitutional because it does not violate a defendant’s right to confront his accuser or his right to call witnesses in his favor. Accordingly, we affirm Appellant’s judgment of sentence.

Commonwealth Of Pennsylvania, Appellee V. Henry Johnson, Appellant No. 01736EDA02 2003 PA Super 354 Filed: 9/22/2003
	Appeal From The Judgment Of Sentence Dated January 7, 2002, In The Court Of Common Pleas Of Philadelphia County, Criminal Division At No. 0103-0403.
Before: JOYCE, BENDER and BOWES, JJ.
Opinion by: JOYCE, J.
Appellant, Henry Johnson, appeals from the January 7, 2002 judgment of sentence entered in the Court of Common Pleas of Philadelphia County. Appellant challenges the sufficiency of the evidence underlying his conviction of driving under the influence of alcohol (DUI). After review, we affirm.

Commonwealth Of Pennsylvania, Appellee V. Sean Alan Huff, Appellan No. 01593MDA02 2003 PA Super 359 Filed: 9/22/2003
	Appeal From The Judgment Of Sentence September 24, 2002, In The Court Of Common Pleas Of Cumberland County, Criminal Division At No. 02-0267.
Before: JOYCE, KELLY and POPOVICH, JJ.
Opinion by: POPOVICH J.
Appellant Sean Alan Huff appeals from the judgment of sentence entered in Court of Common Pleas, Cumberland County, following his convictions of unlawful possession of a small amount of marijuana and of unlawful possession of drug paraphernalia. Appellant challenges the suppression court’s refusal to suppress all evidence. Upon review, we reverse.

William Tucker And Helen Tucker, H/W, Appellants V. Community Medical Center And Saadeddine Hijazi, M.D., Appellees No. 01331MDA02 2003 PA Super 356 Filed: 9/19/2003
	Appeal From The Judgment Entered July 26, 2002, In The Court Of Common Pleas Of Lackawanna County, Civil Division At No. 96-CV-4450.
Before: MUSMANNO, BOWES and POPOVICH, JJ.
Opinion by: POPOVICH, J.
William Tucker (Husband) and Helen Tucker (Wife) appeal the judgment entered on July 26, 2002, in favor of Community Medical Center (CMC) and Saadeddine Hijazi, M.D. (Hijazi). Upon review, we affirm.

Reading Radio, Inc., T/D/B/A Wago Radio V Molly S. Fink, Isaac A. Ulrich, David L. Kline, Weeu Broadcasting Company And Reading Eagle Company Appeal Of: David L. Kline, Weeu Broadcasting Company And Reading Eagle Company No. 00899MDA02 2003 PA Super 353 Filed: 9/19/2003
	Appeal From The Judgment Entered July 31, 2002, In The Court Of Common Pleas Of Berks County, Civil Division At No. 00-10361.
Before: HUDOCK, TODD and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Appellants David L. Kline, WEEU Broadcasting Co. (WEEU), and Reading Eagle Co. (Reading Eagle), appeal the judgment entered on July 31, 2002, in the Court of Common Pleas of Berks County. Upon review, we affirm.

Commonwealth Of Pennsylvania, Appellant V. George Ripley, Calyn Arnold, Alexis Badenmayer, Curtis Dahn, Mark Debrew, Paul B. Osher, Appellees No. 00084EDA02,00085EDA02.00086EDA02,00088EDA02 2003 PA Super 352 Filed: 9/18/2003
	Appeal From The Order Entered November 21, 2001 In The Court Of Common Pleas Of Philadelphia County, Criminal Division, At No. 0102-0344 6/7
Before: DEL SOLE, P.J., GRACI and BECK, JJ.
Opinion by: DEL SOLE, P.J.
Concurring Opinion by: GRACI, J.
The Commonwealth appeals from the order granting Appellees’ motion to quash. Upon review, we reverse.

The Honorable Kathryn S. Lewis, Appellant V. Philadelphia Newspapers, Inc. T/A Philadelphia Daily News And Dan Geringer Appellee No. 03111EDA02 2003 PA Super 350 Filed: 9/18/2003
	Appeal From The Judgment Entered September 17, 2002 Court Of Common Pleas, Philadelphia County, Civil Division At No. 2854 February Term, 2000.
Before: DEL SOLE, P.J., JOHNSON, and BECK, JJ.
Opinion by: JOHNSON, J.
The Honorable Kathryn Streeter Lewis (Lewis) appeals the trial court’s order granting summary judgment in favor of defendants Philadelphia Newspapers, Inc., and Dan Geringer (collectively “PNI”). Lewis, who sued the defendants for defamation, asserts that the trial court erred in granting judgment because it failed to consider a “provably false” statement PNI made in the first of three articles Geringer wrote that appeared in the Philadelphia Daily News. Upon review, we conclude that the statement in question does not establish grounds for a claim of defamation by a public official. Accordingly, we affirm the trial court’s order.

Commonwealth Of Pennsylvania, Appellee V. Jamal Causey, Yusef Causey, Appellants No. 03479EDA01, 01000EDA02 2003 PA Super 351 Filed: 9/18/2003
	Appeal From The JUDGMENT OF SENTENCE November 30, 2001 In The Court Of Common Pleas Of PHILADELPHIA County CRIMINAL, No. 9806-0761 1/2
Before: MUSMANNO, BOWES and CAVANAUGH, JJ.
Opinion by: CAVANAUGH, J.
Brothers Jamal and Yusef Causey were jointly tried and convicted by a jury of aggravated assault, conspiracy and related charges for the shooting of Eric Holt. Jamal Causey was sentenced to serve a term of from eleven and one-half to forty years imprisonment and Yusef Causey was sentenced to serve a term of from fifteen and one-half to fifty-two years imprisonment. They separately appeal from their respective judgments of sentence. Jamal Causey appeals at 3479 EDA 2001 and Yusef Causey appeals at 1000 EDA 2002. We affirm.

Bernice Sanders, Adm. Of The Estate Of Leroy Sanders, Dec’d., Appellee V. Allegheny Hospital ---Parkview Division, Parkview Hospital/Graduate Health System; Hospital Of Philadelphia College Of Osteopathic Medicine--Parkview Hospital Metropolitan Hospital--Parkview Division And Bio-Medical Applications Of Pennsylvania, Inc. D/B/A Bma Parkview, Appellees Appeal Of: Allegheny Hospital---Parkview Division, Parkview Hospital Graduate Health Systems, Appellants No. 02752EDA02 2003 PA Super 349 Filed: 9/18/2003
	Appeal From The Order Dated July 25, 2002, In The Court Of Common Pleas Of Philadelphia County, Civil Division, At No. 2738 October Term, 1997.
Before: STEVENS AND BOWES, JJ. AND MCEWEN, P.J.E.
Opinion by: BOWES, J.
This is an appeal from an order granting sanctions pursuant to local rule 229.1 of the Philadelphia Court of Common Pleas (“Rule 229.1”). We affirm.

Sherry B. Frank, Appellant V. Alan J. Frank No. 01885WDA02 2003 PA Super 355 Filed: 9/18/2003
	Appeal From The Order, September 20, 2002, In The Court Of Common Pleas Of Mercer County Civil Division At No. 1998-227
Before: FORD ELLIOTT, MUSMANNO, AND ORIE MELVIN, JJ.
Opinion by: FORD ELLIOTT, J.
This is an appeal from the trial court’s order of September 20, 2002 which denied the parties’ minor sons, Carl, age 14, and the twins, Michael and Andrew, age 13, (“the boys”) standing to intervene in their own custody action. After careful review of the pertinent statutes and case law, we affirm the order of the trial court although we base our decision on different grounds. See Weber v. Lynch, 346 A.2d 363, 366 n.6 (Pa.Super. 1975) (noting that we may “uphold a decision below if there exists any proper basis for the result reached”).

Commonwealth Of Pennsylvania Appellee V. Kurt M. Danysh, Appellant No. 01455MDA02 2003 PA Super 348 Filed: 9/17/2003
	Appeal From The Order Entered September 3, 2002 In The Court Of Common Pleas Of Susquehanna County, Criminal No. 1996-132 CR
Before: JOYCE, KLEIN, JJ. and McEWEN, P.J.E.
Opinion by: KLEIN, J.
This is an appeal from an order denying Kurt M. Danysh’s petition to stop deducting 20% of all income to his inmate account. Because the court of common pleas lacked subject matter jurisdiction, we vacate its order.

Veronica Connor, Individually And As Administratrix Of The Estate Of Carole Hicks, Deceased Appellant V. Crozer Keystone Health System D/B/A Delaware County Memorial Hospital And Kovalsky, Suburban Cardiologist, Ltd, Marvin, Korienko, Lebieta, Allore, Schwabe And Oteri, Appellees No. 03815EDA02 2003 PA Super 345 Filed: 9/16/2003
	Appeal From The Order Dated November 5, 2002 In The Court Of Common Pleas Of Philadelphia County Civil At No. 000197 April Term, 2002
Before: STEVENS, MONTEMURO, and KELLY, JJ.
Opinion by: STEVENS, J.
This is an appeal from the November 5, 2002 order entered in the Court of Common Pleas of Philadelphia County transferring venue from Philadelphia County to Delaware County. On appeal, Appellant contends that transfer of venue to Delaware County was inappropriate since (1) one or more of Appellees had sufficient contacts with Philadelphia County, (2) one or more of Appellees waived their right to challenge Appellant’s chosen place of venue, and (3) the trial court abused its discretion and/or misapplied the law. We affirm.

Tremco, Inc., Appellant V. Pennsylvania Manufacturers Association Insurance Company, Appellee No. 02963EDA02 2003 PA Super 343 Filed: 9/16/2003
	Appeal From The Order Entered June 28, 2002 In The Court Of Common Pleas Of Philadelphia County Civil Division At No. 388, June Term, 2000.
Before: DEL SOLE, P.J., GRACI and BECK, JJ.
Opinion by: BECK, J.
This is a dispute over insurance coverage sought by plaintiff-appellant Tremco, Incorporated (Tremco) from defendant-appellee Pennsylvania Manufacturers’ Association Insurance Company (PMAIC). The trial court granted summary judgment against Tremco and in favor of PMAIC, holding that PMAIC did not owe or breach any duty to provide coverage to Tremco. We affirm.

Commonwealth Of Pennsylvania, Appellee V. Edward Duffy, Appellant No. 02353EDA02 2003 PA Super 341 Filed: 9/16/2003
	Appeal From The Judgment Of Sentence Entered On June 15, 2001, In The Court Of Common Pleas Of Philadelphia County, Criminal Division, At No. 00-08-0611.
Before: FORD ELLIOTT, LALLY-GREEN, and BECK, JJ.
Opinion by: LALLY-GREEN, J.
Appellant, Edward Duffy, appeals from the judgment of sentence entered on June 15, 2001. We affirm.

Commonwealth Of Pennsylvania, Appellee V. Rashid Matin, Appellant No. 02730EDA02 2003 PA Super 342 Filed: 9/16/2003
	Appeal From The PCRA Order Entered On August 6, 2002, In The Court Of Common Pleas Of Philadelphia County, Criminal Division, At No(S). 9412-0416 1/1.
Before: LALLY-GREEN, BOWES, and OLSZEWSKI, JJ.
Opinion by: LALLY-GREEN, J.
Appellant, Rashid Matin, appeals from the order entered on August 6, 2002, disposing of his first petition brought pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. งง 9541-9546. The PCRA court denied Appellant’s petition without a hearing, following proper notice, on the merits and because Appellant was ineligible for relief because he had finished serving his sentence. We affirm.

Commonwealth Of Pennsylvania, Appellee Vs. Vanderlee Stevenson, Appellant No. 01330WDA02 2003 PA Super 347 Filed: 9/16/2003
	Appeal From The Judgment Of Sentence July 11, 2001 In The Court Of Common Pleas Of Allegheny County Criminal, No. CC 199903982
Before: TODD, BENDER, and KELLY, JJ.
Opinion by: KELLY, J.
Appellant, Vanderlee Stevenson, asks us to determine whether the trial court erred in denying his motion to suppress evidence where the police officers conducting an investigatory detention lacked articulable and reasonable suspicion to believe Appellant was engaged in criminal activity. We hold where the police act on an unsubstantiated radio broadcast that a person is engaged in narcotics activity and a mere assumption that the person is currently driving under suspension, based solely on an encounter with that person three years prior, and where the police fail to articulate grounds to support an allegation that the person is unlawfully parked, the police have failed to show the requisite reasonable basis for an investigative detention. Therefore, the investigative detention of Appellant in the instant case was unlawful, and the evidence garnered as a result of that detention should have been suppressed. Accordingly, we vacate Appellant’s judgment of sentence and remand for further proceedings consistent with this opinion.

Commonwealth Of Pennsylvania, Appellee V. Georgie Ortiz, Appellant No. 01567MDA02 Petition for Reargument Granted 11/17/2003 Filed: 9/16/2003
The Opinion by Judge Tamilia and the Dissenting Opinion by Judge Todd filed September 16, 2003, have been withdrawn. The application for reargument was granted on November 17, 2003.

M.C.M., A Minor By M.G.M. & C.W., His Parents & Natural Guardians, Appellants V. The Milton S. Hershey Medical Center Of The Pa State University, Appellee No. 00917MDA02 Petition for Reargument Denied 11/24/2003 Filed: 9/15/2003
	Appeal From The Judgment Entered June 7, 2002 In The Court Of Common Pleas Of Lancaster County, Civil Division At No. CI-98-11028.
Before: HUDOCK, TODD and POPOVICH, JJ.
Opinion by: POPOVICH, J.
M.C.M. and his parents, M.G.M. and C.W. (Appellants), appeal the entry of summary judgment on June 7, 2002, in favor of Milton Hershey Medical Center (MHMC), in the Court of Common Pleas of Lancaster County. Also, MHMC has filed a Motion with this Court to strike Appellants’ Reply Brief. Upon review, we grant MHMC’s Motion and reverse the entry of summary judgment in favor of MHMC.

Commonwealth Of Pennsylvania, Appellee V. Freelin W. Wright, Appellant No. 01848WDA02 2003 PA Super 344 Filed: 9/12/2003
	Appeal From The Judgment Of Sentence March 1, 2002 In The Court Of Common Pleas Of Crawford County Criminal Division At No. 2000-783.
Before: DEL SOLE, P.J., GRACI and BECK, JJ.
Opinion by: BECK, J.
Concurring/Dissenting Opinion by: GRACI, J.
Appellant Freelin W. Wright was convicted by a jury of aggravated assault, recklessly endangering another person, carrying a firearm without a license, possessing an instrument of crime, and public drunkenness in November of 2000. The trial court imposed a sentence of seven to fifteen years and later denied appellant’s post sentence motions in which he sought a new trial based on after-discovered evidence, as well as a reduction in sentence. Appellant did not file a direct appeal.

GERALD KEVIN SMITH And STEPHANIE SMITH, H/W, Appellee V. Carole M. Putter, Appellant No. 02211EDA02 2003 PA Super 337 Filed: 9/11/2003
	Appeal From The Judgment Entered July 5, 2002 In The Court Of Common Pleas Of Delaware County Civil Division At No. 00-002176
Before: KLEIN, BENDER, and CAVANAUGH, JJ.
Opinion by: KLEIN, J.
Concurring/Dissenting Opinion by: BENDER, J.
Plaintiff Gerald Kevin Smith was involved in an automobile accident case where defendant Carole M. Putter conceded her negligence. The jury found that Defendant's negligence was not a substantial factor in causing Plaintiff Gerald Kevin Smith's injuries, and Plaintiffs appealed. While the defense medical experts disputed the claimed injuries to Smith's wrist and shoulder, these doctors agreed that the accident aggravated a prior hip condition and necessitated two hip surgeries. Therefore, the verdict finding that the accident was not a substantial factor in causing injuries to Gerald Smith and therefore failing to award any damages for the hip injury is against the weight of the evidence. We note both that that evidence was disputed as to any injuries to the wrist and shoulder and that Plaintiffs did not appeal the lack of causation finding for the wrist and shoulder injuries. Therefore, we reverse and remand for a new trial limited to damages for the hip injury only.

Frederick J. Bainhauer, Jr., Appellant V. Lehigh Valley Hospital, Allentown Anesthesia Associates, Inc., Samuel Lerner, M.D., Karen Ann Bretz, M.D., And Jane Doe, A/K/A J. Gerlach, Nurse Anesthetist, Appellees No. 03461EDA02 Petition for Reargument Denied 12/4/2003 Filed: 9/11/2003
	Appeal From The Judgment Entered On October 17, 2002 In The Court Of Common Pleas Of Lehigh County Civil Division At No. 99-C-114V.
Before: DEL SOLE, P.J., JOHNSON and BECK, JJ.
Opinion by: BECK, J.
This is a medical malpractice case in which Plaintiff-Appellant, Frederick J. Bainhauer, D.O., claims the trial court erred in limiting his negligence case to the theory that his harm was caused by the administration during anesthesia of the drug Neo-Synephrine. We reverse and remand for a new trial.

Commonwealth Of Pennsylvania, Appellee V. Robin Troy, Appellant No. 01992WDA02 2003 PA Super 340 Filed: 9/11/2003
	Appeal From The Judgment Of Sentence October 8, 2002 In The Court Of Common Pleas Of Butler County Criminal Division At No. 2002-697
Before: HUDOCK, BENDER and TAMILIA, JJ.
Opinion by: BENDER, J.
Robin Troy appeals from the October 8, 2002 judgment of sentence entered against her for the summary offense of disorderly conduct, in which she was ordered to pay a $25.00 fine. We affirm.

Commonwealth Of Pennsylvania, Appellee Vs. Reginald Gadsden, Appellant No. 01524MDA02 2003 PA Super 336 Filed: 9/10/2003
	Appeal From The Order Entered August 26, 2002 In The Court Of Common Pleas Of Dauphin County Criminal, Nos. 2016, 2016A CD 1999; 3947 CD 1999; 434, 435 CD 2000
Before: JOYCE, KELLY, and POPOVICH, JJ.
Opinion by: KELLY, J.
Appellant, Reginald Gadsden, asks us to review the order entered in the Dauphin County Court of Common Pleas, dismissing his PCRA petition for failure to raise a cognizable claim. Specifically, Appellant asks us to determine whether his claim of ineffectiveness of counsel is cognizable under the PCRA, where his claim is that appellate counsel failed to file a petition for allocatur with the Pennsylvania Supreme Court following the disposition of Appellant’s direct appeal. We hold that Appellant’s claim is cognizable under the PCRA. Accordingly, we reverse and remand for an evidentiary hearing to determine whether counsel provided Appellant with adequate and timely consultation before the filing deadline regarding Appellant’s right to file a petition for allowance of appeal with the Pennsylvania Supreme Court. On remand, the court must also determine whether Appellant asked counsel to petition for allocatur and, if so, whether counsel’s failure to file the petition was justified. Accordingly, we vacate the court’s order dismissing Appellant’s PCRA petition, and remand for an evidentiary hearing consistent with the principles enunciated in this opinion.

Commonwealth Of Pennsylvania, Appellee V. Richard Lana, Appellant No. 02428EDA02 2003 PA Super 335 Filed: 9/9/2003
	Appeal From The Judgment Of Sentence In The Court Of Common Pleas Of Philadelphia County, Criminal Division, Nos. M.C. #9806-1653, M.R.#01-919129
Before: TODD, GRACI and TAMILIA, JJ.
Opinion by: TAMILIA, J.
Concurring Opinion by: GRACI, J.
On June 13, 1998, Philadelphia Officer Russell Shoemaker stopped appellant, Richard Lana, for suspicion of driving while intoxicated (DUI). In the course of providing the officer with his identification, a clear Baggie fell from appellant’s pocket. That Baggie later was ascertained to contain crack cocaine. 2 On July 12, 2001, in Municipal Court, appellant’s motion to suppress was denied and he was convicted, following a bench trial, of one count of possession of a controlled substance. He was sentenced that same day to six (6) months reporting probation followed by six (6) months non-reporting probation. On August 14, 2001, appellant petitioned for a writ of certiorari in the Court of Common Pleas, but on November 28, 2001, the petition was dismissed for failure to produce notes of testimony. A petition to reinstate the petition was filed on January 3, 2002, and a hearing was scheduled. Following a June 25, 2002 hearing in the Court of Common Pleas, appellant’s petition for a writ of certiorari was denied, and this appeal followed.

Commonwealth Of Pennsylvania, Appellee V. David Pollard, Appellant No. 01723EDA02 2003 PA Super 334 Filed: 9/9/2003
	Appeal From The Judgment Of Sentence Entered April 18, 2002, In The Court Of Common Pleas Of Philadelphia County, Criminal, At No. 9810-0697 2/2.
Before: HUDOCK, POPOVICH and CAVANAUGH, JJ.
Opinion by: HUDOCK, J.
This is an appeal from the judgment of sentence entered after Appellant pled guilty to third-degree murder, criminal conspiracy and abuse of a corpse. We affirm.

Provident National Bank, N.A., Appellee V. Jen-Shenn Song And Sue-Jen Song, Appellants No. 00510EDA03 2003 PA Super 333 Filed: 9/9/2003
	Appeal From The Order Entered December 18, 2002, Court Of Common Pleas, Chester County, Civil Division At No. 92-09690.
Before: JOHNSON, BENDER, and MONTEMURO?, JJ.
Opinion by: JOHNSON, J.
Dissenting Opinion by: MONTEMURO, J.
Jen-Shenn Song and Sue-Jen Song appeal, pro se, from an order denying their Petition to set aside the Sheriff’s Sale of their real property. The Songs contend that it was error for the trial court to affirm the sheriff’s sale because Provident National Bank (hereinafter “the Bank”) conducted an unfair sale, unfairly marketed the property, undersold the property and misstated the true debt owed on the property. The Songs also contend that their due process rights were violated because the Bank failed to provide them with adequate notice of the total debt to be paid and that there is a material dispute regarding the amount of interest owed on the debt. Upon review, we find no error and thus affirm the trial court’s order.

Temple University Hospital, Inc., Appellee v. Healthcare Management Alternatives, Inc. A/K/A Americhoice Of Pennsylvania, Appellant No. 01641EDA02 2003 PA Super 332 Filed: 9/8/2003
	Appeal From The Judgment In The Court Of Common Pleas Of Philadelphia County, Civil Division, No. 4325 December Term, 1997
Before: MCEWEN, P.J.E., BOWES and TAMILIA, JJ.
Opinion by: BOWES, J.
Dissenting Opinion by: TAMILIA, J.
Healthcare Management Alternatives, Inc. a/k/a Americhoice of Pennsylvania (“Healthcare”) appeals a judgment in the amount of $4,310,494.34 plus pre-judgment interest entered against it in this action instituted by Temple University Hospital (the “Hospital”). We reverse and remand for a determination of damages in accordance with this adjudication.

H. Beatty Chadwick, Appellant V. John Douglas Caulfield, Appellee, Barbara Crowther Chadwick, Intervenor No. 03528EDA02 Petition for Reargument Denied 11/12/2003 Filed: 9/8/2003
	Appeal From The Order Entered November 7, 2002 In The Court Of Common Pleas Of DELAWARE County CIVIL At No. 02-80287
Before: HUDOCK, POPOVICH, and CAVANAUGH, JJ.
Opinion by: CAVANAUGH, J.
H. Beatty Chadwick (“Chadwick”), appeals from the denial of his ninth state petition for a writ of habeas corpus. We affirm, holding that, as with Chadwick’s previous petitions for a writ of habeas corpus, he has not presented any grounds for relief.

Commonwealth Of Pennsylvania, Appellee V. Brian Simpson, Appellant No. 00757WDA02 2003 PA Super 331 Filed: 9/8/2003
	Appeal From The Judgment Of Sentence Entered On April 9, 2002, In The Court Of Common Pleas Of Lawrence County, Criminal Division, At No. 39 Of 2002 CR.
Before: MUSMANNO, LALLY-GREEN, and TAMILIA, JJ.
Opinion by: LALLY-GREEN
Appellant, Brian Simpson, appeals from the judgment of sentence entered on April 9, 2002, following his conviction for the summary offense of Cruelty to Animals. We reverse the judgment of sentence and order Appellant discharged.

Isabelle Rivera And Wilfredo Rivera V. Home Depot, Home Depot Usa, Inc. A/K/A Home Depot Atlanta, Ga, And Home Depot International, Inc. No. 01245EDA02 2003 PA Super 326 Filed: 9/5/2003
	Appeal From The Judgment Entered March 11, 2002 In The Court Of Common Pleas Of Philadelphia County, Civil No. 586 April Term, 2000
Before: FORD ELLIOTT, KLEIN AND MONTEMURO, JJ.
Opinion by: KLEIN, J.
Isabelle and Wilfredo Rivera appeal from the judgment entered on the order denying their post-trial motion to strike a nonsuit entered in the Court of Common Pleas of Philadelphia County. Isabelle Rivera was allegedly injured when she was struck by an electronic door while leaving a Home Depot store with her husband. Because the Riveras had no expert witness to testify that the door was defective and did not point to any specific discovery requests that would justify their failure to present an expert, the trial court entered a compulsory nonsuit. The Riveras filed a motion to strike the nonsuit, which was denied. We affirm.

In The Interest Of J.P. Appeal Of: A.P. No. 00223EDA03 2003 PA Super 327 Filed: 9/5/2003
	Appeal From The Order Entered December 20, 2002, In The Court Of Common Pleas, Bucks County, Criminal, No. 260 CW 2002
Before: STEVENS, KLEIN, JJ., and McEWEN, P.J.E.
Opinion by: PER CURIAM
Appellant, A.P. (“father”) of J.P. (“child”), minor daughter, born August 23, 1988, has taken this appeal from the order of the trial court which (1) continued father’s dependency hearing pending the resolution of criminal charges brought against father for crimes of sexual abuse allegedly committed against J.P., and (2) denied him participation in mother’s dependency hearing. We are constrained to vacate and remand.

Treasure Lake Property Owners Association, Inc., Appellee V. Dennis L. Meyer And Betty J. Meyer, Appellants No. 02181WDA02 2003 PA Super 329 Filed: 9/4/2003
	Appeal From The Order Entered On November 26, 2002, In The Court Of Common Pleas Of Clearfield County, Civil Division, At No(S). 98-135 CD
Before: ORIE MELVIN, LALLY-GREEN, and BENDER, JJ.
Opinion by: LALLY-GREEN, J.
Appellants, Dennis L. and Betty J. Meyer, appeal from the order entered on November 26, 2002. We affirm.

Anne Kelleher, Appellee V. Raymond G. Bush, Appellant No. 03511EDA02 2003 PA Super 325 Filed: 9/4/2003
	Appeal From The Order In The Court Of Common Pleas Of Northampton County, Domestic Relations Division, No. DR-50-995
Before: TODD, GRACI and TAMILIA, JJ.
Opinion by: TAMILIA, J.
Following the filing of a petition for modification of an existing support Order by Anne Kelleher, the trial court entered a final support Order on October 8, 2002. Raymond Bush appeals therefrom, arguing the Order is invalid because its effective date precedes the date of the filing of the petition for modification. Upon review, we vacate and remand.

Joseph W. Croyle, Jr., And Lizabeth B. Croyle, Husband And Wife, Appellees V. Patrick W. Dellape And Bernadine Dellape, Husband And Wife, Appellants No. 02154WDA02 2003 PA Super 328 Filed: 9/4/2003
	Appeal From The Order November 14, 2002 In The Court Of Common Pleas Of Blair County Civil Division At No. 2000 GN 3448
Before: ORIE MELVIN, LALLY-GREEN and BENDER, JJ.
Opinion by: BENDER, J.
Patrick W. Dellape and Bernadine Dellape, husband and wife and the defendants below (the Dellapes), appeal from the November 14, 2002 order denying their post trial motion on the basis of the trial court’s opinion and order dated July 15, 2002. In its July 15, 2002 order, the trial court granted relief to the plaintiffs below, Joseph W. Croyle, Jr. and Lizabeth B. Croyle, husband and wife (the Croyles), who had initiated the underlying action in ejectment against the Dellapes. We affirm.

George P. Viener V. Neal Jacobs, Norman Rush, Michael A. Joffred, Allen Friedman, N.G.N., Inc., Reading Garment Company, Inc., Ellmar Manufacturing, Inc., Nagan Leasing, Inc., Reading Dyeing And Finishing, Inc., Little Creek Mills, Inc., Lcma, Inc., Amity Finishing, Inc., G.N.K. Partnership Appeal Of: Neal Jacobs No. 01323MDA01 Petition for Reargument Denied 11/17/2003 Filed: 9/3/2003
	Appeal From The Judgment Entered July 12, 2001, In The Court Of Common Pleas Of Berks County, Civil Division At No. 00-6385.
Before: HUDOCK, TODD and POPOVICH, JJ.
Opinion by: POPOVICH, J.
Neal Jacobs (Jacobs) appeals the Judgment entered on July 12, 2001, in the Court of Common Pleas of Berks County. Upon review, we affirm in part, reverse in part and remand.