author: McEWEN, Judge: BROSKY, Judge, WIEAND, Judge,

text:
    494 A.2d 383
    COMMONWEALTH of Pennsylvania v. Reid EVANS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1984.
    Filed April 19, 1985.
    Reargument Denied June 19, 1985.

      Stanton M. Lacks, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   McEWEN, Judge:

We here study an appeal from a judgment of sentence imposed following a jury trial at which appellant was found guilty of second degree murder, robbery, kidnapping, conspiracy and prohibited offensive weapons and sentenced to serve a life term. Appellant presents various allegations of ineffective assistance of counsel and argues that the sentence imposed on multiple inchoate offenses was improper. We affirm the second degree murder and conspiracy convictions, but vacate the judgment of sentence upon the prohibited offensive weapons conviction which was to have been served concurrently with the life sentence for murder.

As the victim, a 68 year old man, approached his parked Cadillac in a shopping center in Lower Merion, Pennsylvania, appellant’s two accomplices forced him at the point of appellant’s sawed-off shotgun into the back seat of the Cadillac and proceeded to follow appellant who was driving a Volkswagen. Appellant and his accomplices drove through Fairmount Park where they took the victim’s wallet before releasing him. The complaint of the victim was recorded by a radio dispatcher:

CALLER: I was coming out of the Acme in Bala and my wife was waiting and I walked to my car and these guys were waiting for me.
RADIO: And what happened?
CALLER: They put me, I can’t talk, I have a heart condition.
RADIO: Yeah, well just ...
CALLER: They put me in the car, cleaned me out. They let me out down here. They had a sawed-off shotgun on me. Okay.
RADIO: Okay.
CALLER: So, I’m standing here waiting.
RADIO: All right, what’s your car there?
CALLER: No, they went with it. I got a black Seville, Cadillac.
JjE $ $ >jc Jj<
RADIO: Two males?
CALLER: Pardon me?
RADIO: Two males?
CALLER: Yeah, two black ones and, and there was one in a, another one or two in a little Volkswagen was following.
* * Jit * * *
RADIO: Just try, try to relax if you can. They’ll be right there.
CALLER: Okay.
RADIO: I’m gonna just keep you on the line.
CALLER: Okay.
RADIO: Which way did they go in your Cadillac, do you have any idea?
CALLER: They kept riding along this road that goes past the Playhouse.
RADIO: Do you have any medication that you could be taking or anything?
CALLER: Yeah, I got a nitro.
RADIO: You got it with you?
CALLER: Yeah, I took one.
RADIO: Okay.
CALLER: I’m having a little trouble breathing.
RADIO: Yeah, I, I know it’s tough to relax.
CALLER: Yeah, I ...
RADIO: But, but the worst ...
CALLER: I was very ...
RADIO: You know ...
CALLER: Yeah, that’s all ...
RADIO: I, I know it’s a frightening experience.
CALLER: The first time I ever had this happen.
RADIO: Yeah, If you have to go to the hospital you just tell the police when they get there if that’s your condition.
CALLER: No, I don’t want, I don’t think I have to go to the hospital.
RADIO: All right. I just want to stay on there until you see a, the police come up on you because in that Park sometimes it’s a little tricky.
CALLER: I wish they’d get here.
RADIO: Yeah, they, they’ll be, they should be there any second. Let me know when you, you know, when they come up on you, they, they should be there by now. You don’t see anything yet?
CALLER: I’m having trouble breathing, I wish ...
RADIO: You are? Well, they, they, I ... didn’t see anybody fly by you did you, any police cars?
CALLER: No, no.
RADIO: Well, there’s several units enroute there, I, I’m following it on the screen here..... I mean, the job’s been on.
CALLER: I’m having trouble breathing.
RADIO: You are?
CALLER: Yeah, I’m having......yeah, here they are now.
RADIO: All right, tell them about your breathing. Shortly after the police arrived, they rushed the victim to a nearby hospital where he died within four hours as a result of cardiac arrest.

Appellant contends that trial counsel was ineffective since he did not express, and thereby preserve, certain issues in post-verdict motions. The limits of our review upon this contention are well established:

When we study a claim of ineffectiveness of counsel, we first determine whether the claim is of arguable merit. Only if the underlying claim is of arguable merit do we consider whether the strategy chosen by trial counsel has some reasonable basis designed to effectuate the interest of the client. Commonwealth v. Evans, 489 Pa. 85, 94, 413 A.2d 1025, 1028 (1980); Commonwealth v. Kaufman, 307 Pa.Super. 63, [73], 452 A.2d 1039, 1044 (1982). Our review of the claim that counsel was ineffective is governed by the standard enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):
[Counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

Id., 427 Pa. at 604-05, 235 A.2d at 352-53. (emphasis in original).

Commonwealth v. Mayfield, 318 Pa.Super. 450, 451-54, 465 A.2d 40, 41-42 (1983). Accord Commonwealth v. Clem-mons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984). In light of these principles, we address appellant’s claims of ineffectiveness.

Appellant first contends that trial counsel was ineffective for failing to preserve in post-verdict motions the assertion that since there was no probable cause to believe that he was a felon, his arrest was unlawful. Appellant argues, therefore, that his inculpatory statement should have been suppressed as a product of an unlawful arrest. We disagree.

The function of this Court, when reviewing the denial of a motion to suppress, is to determine:

[Wjhether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. W.P., 302 Pa.Super. 66, 69, 448 A.2d 97, 98 (1982) quoting Commonwealth v. Hunt, 280 Pa.Super. 205, 207-208, 421 A.2d 684, 685 (1980). The record, viewed in accordance with this standard, reveals that appellant and three companions were arrested while driving in a different stolen car in Atlantic City, New Jersey, some eight days after the murder. The arresting officer testified at the suppression hearing that his suspicions were aroused when he observed the occupants of the vehicle turn and directly look at him as they drove by him. When the officer followed the vehicle, his suspicions were further aroused because the driver of the vehicle attempted to make two illegal turns into one-way streets. The officer, as a result, requested a National Crime Information Center (NCIC) computer check of the vehicle’s Pennsylvania license tag. The response was immediate and revealed not only “that the vehicle was stolen or used in a criminal act”, but also “that ‘occupants were armed’ ”. When a police support unit arrived and the officer had brought the vehicle to a halt, appellant provided the officer with registration for the vehicle, stating that the vehicle was owned by his uncle. When, during that discussion, the officers observed the butt of a sawed-off shotgun protruding from under the driver’s seat, appellant, his two accomplices in both criminal episodes and the accomplice in their second robbery were placed under arrest.

The benchmark of a warrantless arrest is the existence of probable cause, namely, whether “the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.” Commonwealth v. Wagner, 486 Pa. 548, 556, 406 A.2d 1026, 1030 (1979) quoting Commonwealth v. Perry, 468 Pa. 515, 520, 364 A.2d 312, 315 (1976). “A warrantless arrest for a felony will be upheld where police have probable cause to believe (1) that a felony has been committed and (2) that the person to be arrested is the felon.” Commonwealth v. Derrick, 322 Pa.Super. 517, 532, 469 A.2d 1111, 1119 (1983). An arresting officer, in executing a valid arrest, may rely upon radio broadcasts emanating from police facilities provided, however, that the arresting officer has been either (1) ordered or directed to perform the arrest by an officer in possession of facts justifying the arrest; (2) received information justifying arrest; or (3) heard information which, coupled with facts he personally observed, provided probable cause to arrest. Commonwealth v. Gambit, 274 Pa.Super. 571, 577-578, 418 A.2d 554, 557 (1980) aff'd., 501 Pa. 453, 462 A.2d 211 (1983). Accord Commonwealth v. Prengle, 293 Pa.Super. 64, 67, 437 A.2d 992, 994 (1981). Moreover, it is firmly established that NCIC printouts are of sufficient reliability to form the basis of the reasonable belief which is required to establish probable cause for arrest. Commonwealth v. Riley, 284 Pa.Super. 280, 285-286, 425 A.2d 813, 815 (1981).

We believe that the NCIC information in and of itself provided the arresting officer with sufficient probable cause to justify the warrantless arrest of appellant. Moreover, the arrest was further justified by the plain view discovery of the sawed-off shotgun from within the car. Thus, the arrest was lawful and this claim of ineffective assistance of counsel must be rejected.

Nor is there any merit to the claim that counsel was ineffective by reason of the failure to assert in post-verdict motions that the confession of appellant should have been suppressed on the grounds that appellant had not knowingly and intelligently waived his Miranda rights. Judge Joseph T. Murphy conducted the suppression proceedings and found that appellant (1) stated that he wished to give a statement; (2) was advised that the investigation focused upon the kidnapping, robbery and homicide which had occurred in Fairmount Park; and (3) was read his Miranda rights and indicated that he did not wish to remain silent. It further appears that appellant provided the investigating officer with a five and one-half page typewritten statement, each page of which he read, reviewed and signed. See Note 4 supra. We share in the conclusion of Judge Murphy that appellant “knowingly, intelligently and voluntarily waived [his] rights to remain silent and to have counsel present while [he was] being questioned.”

Appellant further claims that the stewardship of trial counsel was less than effective by reason of the failure of counsel to preserve the assertion that the evidence was insufficient to sustain a conviction of second degree murder. Appellant argues that since the death of the victim from cardiac arrest was not foreseeable, the homicide could rise no higher than third degree murder. “A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.” 18 Pa.C.S. § 2502(b). While it is true that the tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide, Commonwealth v. Root, 403 Pa. 571, 580, 170 A.2d 310, 312-14 (1961), “if the wound inflicted by the accused is not itself mortal and a subsequent event is found to be the immediate cause of death, the accused does not escape legal liability if his act started an unbroken chain of causation leading to the death.” Commonwealth v. Robinson, 468 Pa. 575, 584, 364 A.2d 665, 670 (1976). Accord Commonwealth v. Green, 477 Pa. 170, 174, 383 A.2d 877, 879 (1978); Commonwealth v. Cartagena, 272 Pa.Super. 485, 489, 416 A.2d 560, 562 (1979). The legal cause of death is thus sufficiently proven if the criminal behavior is shown to have been a direct and substantial factor in bringing about the death. Commonwealth v. Green, supra, 477 Pa. at 174, 383 A.2d at 872; Commonwealth v. Stafford, 451 Pa. 95, 97, 301 A.2d 600, 602 (1973); Commonwealth v. Paquette, 451 Pa. 250, 254, 301 A.2d 837, 839 (1973). Death must, of course, be the consequence of the felony, and not merely a coincidence. Commonwealth v. Redline, 391 Pa. 486, 495, 137 A.2d 472, 476 (1958); Commonwealth v. Lang, 285 Pa. 34, 46, 426 A.2d 691, 694-695 (1981).

The evidence was clearly sufficient to convict appellant of second degree murder. The Commonwealth introduced testimony of a forensic pathologist who opined:

The cause of death was due to the arteriosclerotic heart disease, the heart disease I described aggravated by the robbery and the kidnapping. The manner of death was homicide.

The statute defining second degree murder does not require that a homicide be foreseeable; rather, it is only necessary that the accused engaged in conduct as a principal or an accomplice in the perpetration of a felony. It cannot be denied that the felonious conduct of appellant not only “started an unbroken chain of causation”, but also was a “direct and substantial factor” in bringing about the death of the victim. There is, therefore, no merit to this sufficiency assertion. Accordingly, the claim that counsel was less than effective for this reason is rejected.

Appellant further contends that trial counsel was ineffective for failing either to express a motion in limine to preclude admission of evidence of other crimes or to move for a mistrial when the Commonwealth sought to introduce such evidence. The Commonwealth presented testimony concerning the circumstances surrounding the arrest of appellant and included reference to (1) the NCIC broadcast which verified that appellant and his accomplices were riding in a car which had been stolen or used in a crime and were armed; (2) the fact that appellant had produced a registration card for that vehicle and indicated that it was his uncle’s car; and (3) the discovery of the sawed-off shotgun from under the driver’s seat. The Commonwealth, in addition, cross-examined appellant upon the open charges against him in connection with that stolen automobile. “It is well settled in Pennsylvania that evidence of criminal activity not charged in the indictment or information on which the defendant is being tried cannot be introduced at trial except in certain limited circumstances.” Common wealth v. Fuller, 479 Pa. 353, 357, 388 A.2d 693, 694-95 (1978). “ ‘The purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectively strip him of the presumption of innocence’ ”. Commonwealth v. Spruill, 480 Pa. 601, 604-605, 391 A.2d 1048, 1049-1050 (1978) quoting Commonwealth v. Terry, 462 Pa. 595, 599-600, 342 A.2d 92, 94-95 (1975). An exception to this general rule exists where the evidence of other criminal activity forms part of the history of the event or serves to enhance the natural development of the facts. Commonwealth v. Brown, 462 Pa. 578, 591, 342 A.2d 84, 90 (1975); Commonwealth v. Lewis, 314 Pa.Super. 298, 306, 460 A.2d 1149, 1153 (1983); Commonwealth v. Davenport, 286 Pa.Super. 212, 215, 428 A.2d 647, 649 (1981).

As heretofore observed, our preliminary .inquiry in reviewing an allegation of ineffective assistance of counsel is whether the claim that counsel failed to assert possessed arguable merit. Commonwealth v. Parker, 503 Pa. 336, 339, 469 A.2d 582, 584 (1983); Commonwealth v. Lesko, 502 Pa. 511, 514, 467 A.2d 307, 309 (1983); Commonwealth v. Hubbard, 472 Pa. 259, 276, 372 A.2d 687, 695 (1977). Only where the underlying issue is found to be of arguable merit do we proceed to determine whether the particular course of action chosen by counsel had some reasonable basis designed to effectuate the interests of his client. Commonwealth v. Clemmons, supra, 505 Pa. at 361, 479 A.2d at 957; Commonwealth v. Garvin, 335 Pa.Super. 560, 564, 485 A.2d 36, 38 (1984).

We agree with appellant that there is arguable merit to his contention that trial counsel should have attempted to prevent the jury from learning of the criminal activity which resulted in his arrest in Atlantic City, New Jersey. “The failure to file a suppression motion under some circumstances may be evidence of ineffective assistance of counsel.” Commonwealth v. Metzger, 295 Pa.Super. 267, 272, 441 A.2d 1225, 1228 (1981). Under the circumstances of the instant case, however, we need not remand for an evidentiary hearing for the purpose of determining whether counsel had a reasonable basis for failing to challenge the admission of the evidence of the unrelated criminal activity. Assuming, arguendo, that counsel did not have a reasonable basis for his challenged conduct, appellant would still not be entitled to the relief he seeks.

This Court, sitting en banc, in Commonwealth v. Garvin, supra, concluded that the use of the harmless error standard is appropriate in determining whether a defendant is entitled to a new trial based upon a claim of ineffective assistance of counsel. “A finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant.” Commonwealth v. Garvin, supra, 335 Pa.Superior Ct. at 566, 485 A.2d at 39 (citations omitted). See also Commonwealth v. Galloway, 302 Pa.Super. 145, 154, 448 A.2d 568, 573 (1982).

We are convinced as a result of a review of the evidence in the instant case, which included appellant’s confession, that appellant was not prejudiced by the failure of counsel, even if it was the result of neglect, to challenge the admission of evidence concerning the unrelated criminal activity. Since we find the omission, even if error, to have been harmless, we reject appellant’s argument that he is entitled to a new trial as a result of counsel’s failure to attempt to prevent the admission of the evidence of unrelated criminal activity.

Appellant next challenges the legality of his sentence on the basis of the statutory bar against conviction of multiple inchoate crimes which is set forth in Section 906 of the Crimes Code, 18 Pa.C.S. § 906. “A person may not be convicted of more than one Section 906 offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.” Appellant was determined by a jury to be guilty of two such inchoate crimes, namely, criminal conspiracy, 18 Pa.C.S. § 903, and prohibited offensive weapons, 18 Pa.C.S. § 908, and sentences were imposed upon each offense. The aforequoted mandate of Section 906, however, precludes the imposition of separate sentences upon each of these crimes. We have the option either to remand for resentencing or to amend the sentence directly. Commonwealth v. Fulton, 315 Pa. Super. 420, 423, 462 A.2d 265, 267 (1983); Commonwealth v. Ford, 315 Pa.Super. 280, 296-300, 461 A.2d 1281, 1289-1290 (1983); Commonwealth v. Von Aczel, 295 Pa.Super. 242, 254, 441 A.2d 750, 756 (1981). The sentencing judge imposed the maximum term of imprisonment for each inchoate offense and directed that they be served in consecutive fashion. Since only one of the inchoate convictions imposed in the instant case can be permitted to stand, we vacate the sentence imposed upon the lesser of the two offenses, the prohibited offensive weapons conviction. Commonwealth v. Fulton, supra; Commonwealth v. Ford, supra; Commonwealth v. Von Aczel, supra. The sentence imposed for criminal conspiracy is, of course, affirmed.

Judgment of sentence affirmed with the exception of the judgment of sentence for prohibited offensive weapons which is vacated. Jurisdiction relinquished.

BROSKY, J., files a concurring opinion.

WIEAND, J., files a concurring and dissenting opinion.

BROSKY, Judge,

concurring:

I agree that the conviction for second degree murder and conspiracy should be affirmed and that the sentence for prohibited offensive weapons should be vacated. However, I believe the issue of whether the prohibited offensive weapons sentence must be vacated merits further discussion.

The Commonwealth cites the recent case of Commonwealth v. Brown, 336 Pa.Super. 628, 486 A.2d 441 (1984), for the proposition that 18 Pa.C.S. § 906 does not require that the prohibited offensive weapons sentence be vacated. In Brown, the defendant had been sentenced for attempted burglary, conspiracy, and prohibited offensive weapons. A panel of this Court vacated the conspiracy sentence, holding that under Section 906 the attempted burglary and conspiracy convictions merged as both offenses were the result of “conduct designed to commit or to culminate in the commission of the same crime,” see 18 Pa.C.S. § 906. The Brown court also held that the sentence imposed for prohibited offensive weapons could stand because the record indicated that the defendant’s possession of the weapon was not designed to culminate in the commission of a burglary. However, the panel also noted in dicta that “in Commonwealth v. Zappacosta, 265 Pa.Super. 71, 401 A.2d 805 (1979), this Court held that Section 906 was intended to apply only to the offenses of conspiracy, solicitation and attempt,” Brown, 336 Pa.Superior Ct. at 635, 486 A.2d at 445.

The Commonwealth now argues that Brown is precedent for the proposition that Section 906 was intended to apply only to conspiracy, solicitation and attempt and, therefore, that the sentence for prohibited offensive weapons should be allowed to stand. I find the Commonwealth’s argument to be most disingenuous.

As noted above, the statement in Brown relied upon by the Commonwealth is not binding precedent, but merely dicta. Furthermore, the language in the sole case relied on in that dicta, Zappacosta, was itself dicta. There, as in Brown, the court held that the two inchoate offenses charged had not involved conduct designed to culminate in the commission of the same crime. There, as in Brown, the court nevertheless went on to state that Section 906 was meant to apply only to conspiracy, solicitation and attempt.

Aside from relying solely on dicta, the Commonwealth’s argument flies in the face of the plain words of Section 906 that “[a] person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.” These words admit of no possible limitation to the offenses of conspiracy, solicitation and attempt and, indeed, cases both prior and subsequent to Zappacosta have established that Section 906 means precisely what it says. See, e.g., Commonwealth v. Gonzales, 297 Pa.Super. 66, 443 A.2d 301 (1982) (Section 906 prohibits convictions of both conspiracy and possessing instruments of crime); Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981) (Section 906 prohibits convictions of both criminal attempt and possessing instruments of crime); Commonwealth v. Crocker, 256 Pa.Super. 63, 389 A.2d 601 (1978) (same); see also, Burkoff, Criminal Offenses and Defenses in Pa., p. 159 (Zappacosta suggestion was obiter dictum, Superior Court has clearly established that Section 906 applies to all offenses enumerated in Chapter 9 of the Crimes Code).

Considering the dicta relied on by the Commonwealth, the numerous cases holding contrary to that dicta, and the express language of Section 906, I must conclude that that section does not apply only to the offenses of conspiracy, solicitation and attempt. Since I find that Section 906 can also prohibit a conviction for the inchoate offense of prohibited offensive weapons, I agree that the judgment of sentence for prohibited offensive weapons must be vacated.

WIEAND, Judge,

concurring and dissenting:

I agree with the majority that there is at least arguable merit to appellant’s contention that trial counsel should have prevented the jury from learning about the unrelated crimes for which appellant was arrested in Atlantic City. I am unable to agree, however, that the introduction of evidence of unrelated criminal activity was harmless. See generally: Commonwealth v. Martinez, 301 Pa.Super. 121, 447 A.2d 272 (1982). Therefore, I would remand for an evidentiary hearing limited to counsel’s stewardship regarding the introduction of evidence of unrelated criminal activity. By an evidentiary hearing it can be determined whether the course chosen by counsel had a reasonable basis designed to effectuate the interests of his client. If there was such a reasonable basis, the judgment of sentence should be affirmed. If not, appellant should be awarded a new trial.

In all other respects I agree with and join Judge McEWEN’s careful analysis and disposition.

      . Appellant was sentenced to a term of life imprisonment for second degree murder and to concurrent sentences of from five years to ten years for conspiracy and from two and one-half years to five years for the weapons offense, the latter to be served in consecutive fashion. The sentencing judge concluded that the offenses of kidnapping and robbery merged into the second degree murder conviction.

      . Appellant is represented by new counsel on appeal and has thus satisfied the rule that “ineffectiveness of prior counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents the appellant.” Commonwealth v. Seachrist, 478 Pa. 621, 624, 387 A.2d 661, 663 (1978) .

      . Prior counsel filed a brief to this Court containing assertions which had neither been raised in post-verdict motions nor expressed in the statement of matters complained of. Nonetheless, newly appointed appellate counsel states in his brief: “issues raised in the prior brief filed by [trial counsel] are adopted by counsel and no additional argument will be made on those issues.” Since trial counsel not only failed to comply with Pa.R.Crim.P. 1123, but also failed to heed the directive of the trial judge that a statement of matters complained of be filed, and since appellate counsel does not claim that trial counsel was ineffective by reason of the failure to properly preserve the assertions set forth in the prior brief, those assertions have been waived. See Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) ; Commonwealth v. Cardona, 316 Pa.Super. 381, 463 A.2d 11 (1983).

      . Appellant gave the following statement on September 30, 1980, each page of which he initialed and signed:
      "Me, Mark and Wyatt was over at my house on Thursday, 9-18-80. So we decided to go up to City Line Avenue and find somebody to rob.
      We drove my brother’s, Reggie’s blue Volkswagen. So we rode up there to City Line & 47th Street.
      So Mark looked over and saw a man parking his car in the parking lot. So Mark jumped out and ran over to see where the man went. We found out where the man went and he came back and got back in the Volkswagen, told me to pull up aside him.
      So I pulled up aside him and went over to the donut shop and bought some donuts and as I was coming out they was putting the man inside the car.
      I got in the Volkswagen and started turning down 47th Street and Mark and them turned all the way around from the parking lot and they followed me all the way down 47th Street.
      I turned to Conshohocken and then Belmont and Monument and made a left turn and went up all the way up the road. I turned around because I couldn’t see Mark and him. And I saw Mark and then turning the wrong way.
      So I told them to turn and go this way and there was only Mark and Wyatt in the front seat. And so they followed me to North Philly to my grandmother’s house, 25th & Nicholas Streets.
      We talked about who could we sell the car to. So we couldn’t find anybody to sell it to. So all three of us drove home in the Volkswagen and went to bed. We split up the money and they gave me $5.00 and they kept the rest.” (N.T. 191-93)
      The statement of appellant also includes, in part, the following dialogue between the investigating detective and appellant:
      QUESTION: “Did Mark and Wyatt have any guns?”

        ANSWER: “They had a shotgun.”
      QUESTION: "Who had the shotgun?”
      ANSWER: “Mark did.”
      QUESTION: "Describe the shotgun.”
      ANSWER: "Sawed-off shotgun, Sears Roebuck.”
      QUESTION: “Whose shotgun is it?”
      ANSWER: "It’s mine. I bought it off the street two years ago.” ******
      QUESTION: “What was taken from the white man?”
      ANSWER: “His wallet and the car.”
      ******
      QUESTION: “Whose idea was it to rob somebody?”
      ANSWER: "All of ours.” (N.T. 193-97).

      . It was established at the suppression hearing that this car had been stolen earlier that same day in Philadelphia by appellant and his accomplices who accosted its owner and forced him into the car by placing a sawed-off shotgun to his head. Again, the trio took a wallet and vehicle registration from the victim before releasing him.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . See and compare: Commonwealth v. Hicks, 483 Pa. 305, 386-387, 396 A.2d 1183, 1186-1187 (1979) (murder conviction sustained where 63 year old victim died from acute cardiac failure due to pre-existing arteriosclerotic heart disease which had been aggravated by severe stress as a result of an assault by the accused); Commonwealth v. Kingsley, 480 Pa. 560, 566-570, 391 A.2d 1027, 1030-1032 (1978) (evidence sufficient to sustain finding that decedent’s death was caused by accused where decedent died nine hours following a physical assault and after decedent had refused medical attention); Commonwealth v. Rice, 477 Pa. 221, 225, 383 A.2d 903, 905 (1978) (felony-murder conviction sustained where the accused grabbed the victim’s purse as a result of which she fell to the ground and struck her head on the sidewalk causing her death); Commonwealth v. Hicks, 466 Pa. 499, 505, 353 A.2d 803, 804-805 (1976) (voluntary manslaughter conviction upheld where multiplicity of blows by accused complicated the victim’s pre-existing heart condition causing his death).

      . I note that Brown is the only appellate decision to have ever cited Zappacosta.


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    494 A.2d 393
    Lieut. Thomas CUMMINGS; Lieut. John Gallagher; Lieut. Ronald Stachowski; Lieut. William Boland; Lieut. Stephen McGovern; Lieut. John Ryan; Lieut. Kurt Kemmessies; Lieut. Michael Amico; Sgt. Neville Booth; Lieut. Michael Serfess; Lieut. Lawrence Clark; Lieut. John Riggin; Lieut. Harold Plude; Lieut. Robert Slimbock; Lieut. Harry Halbe; Lieut. John Griffin; Sgt. Vaughn Carver; Sgt. Charles Yager; Sgt. Gerald Adams; Sgt. Stephen Warner; Sgt. Carl Gustafson; Sgt. Richard Yost; Sgt. Robert Crowley; Sgt. Frank Rapinesi; Sgt. Robert Coulson, Appellants, v. NATIONAL RAILROAD PASSENGER CORPORATION, (AMTRAK), Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1984.
    Filed April 19, 1985.
    Reargument Denied June 28, 1985.

      Alexander A. DiSanti, Media, for appellants.
    Allen J. Gross, Philadelphia, for appellee.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal arises from an order by the lower court denying the Plaintiff-Appellants’ petition for reconsideration and affirming a previous order which sustained the Defendant-Appellee’s exceptions and entered a judgment n.o.v. in its favor. The Appellants instituted this action asserting that the Appellee had breached their respective contracts of employment. After a non-jury trial resulted in a verdict for the Appellants, the lower court determined that it lacked subject-matter jurisdiction, and entered a judgment n.o.v. The Appellants contend that their action was properly before the court and seek an order for judgment on the original verdict.

The Appellee is the National Railroad Passenger Corporation, popularly known as AMTRAK. It recruited the Appellants as supervisors, lieutenants, and sergeants for its police force. The Appellants assert that when hired, they were offered permanent employment in their positions. AMTRAK maintains they were offered only temporary employment. The trial court found that the evidence supported the position of the Appellants on the issue of whether AMTRAK extended a promise of permanent jobs.

While that was the central issue to be resolved in proceedings in the lower court, the critical jurisdiction question presented on appeal requires an understanding of the pertinent factual and procedural background of the dispute. AMTRAK was a party to a collective bargaining agreement with the International Brotherhood of Teamsters [hereinafter IBT]. The agreement included a clause covering promotions to sergeants and lieutenants. Openings for such jobs were to be filled on the basis of seniority, by applicants from the IBT bargaining unit, who passed a promotional examination. Shortly after the Appellants began their employment, they were informed that their positions were subject to the promotional scheme of the aforementioned collective bargaining agreement. A sufficient number of patrolmen from the IBT bargaining unit, who were all hired before the Appellants, and who enjoyed higher seniority, passed the examination to fill all of the supervisory positions. The Appellants refused to take the examination, assertedly because they felt that they were being treated unfairly. AMTRAK then determined that the Appellants were unable to retain their positions and notified them that they would be demoted.

The Appellants sought relief through various proceedings. They instituted an action in the United States District Court for the Eastern District of Pennsylvania to enjoin AMTRAK from giving the examination until the Appellants could challenge the IBT’s status as bargaining representative. The National Mediation Board, the Federal administrative agency having jurisdiction over such disputes in the railroad industry, ordered an election. The AMTRAK police chose the Patrolmen’s Benevolent Association [hereinafter PBA] as their representative, and the Federal District Court thereafter dissolved an injunction it had issued. Although the IBT was no longer the bargaining representative, the Appellants were nevertheless demoted.

The Appellants filed union contract grievances. AMTRAK denied their grievances and the PBA refused to appeal that denial any further in the contractual grievance procedure. After their grievances were denied, the Appellants filed Statements of Claim with the National Railroad Adjustment Board [hereinafter NRAB], another Federal administrative agency which handles railroad industry disputes. The Appellants’ claims were denied; the NRAB ruled that AMTRAK acted properly in adhering to the promotional clause in the applicable collective bargaining agreement.

The Appellants, contemporaneously with the filing of union grievances, instituted the instant action against the Appellee in the Court of Common Pleas of Delaware County. On October 1, 1981, the trial court awarded the Appellants over $890,000.00 for lost wages and other damages. The Appellee filed exceptions on October 19, 1981, in which it challenged, for the first time, the lower court’s subject matter jurisdiction. As previously noted, the lower found merit in the Appellee’s jurisdiction arguments.

The lower court grounded its decision upon the conclusion that the claims of the Appellants were subject to the exclusive jurisdiction of the NRAB. The Appellants, while recognizing the broad authority of the NRAB in resolving disputes between employers and employees and their labor organizations in the railway industry, nevertheless claim that the purportedly independent employment contract claims they raise are properly subject to resolution in our state courts. After thorough consideration, we are convinced that the Appellee’s jurisdiction argument was meritorious. Therefore, we conclude that the lower court acted properly in granting judgment n.o.v., and we affirm the order of the trial court.

The United States Congress enacted the Railway Labor Act (45 U.S.C. § 151, et seq.) in order to properly regulate and provide for the important national commerce concerns regarding the transportation industry. In recognition of peculiar concerns about labor relations stability in this area, the Congress mandated the arbitration of such labor disputes as might arise, and, by 1934 legislation, created the NRAB as the forum for such arbitration. See Union Pacific Railway Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460 (1959) for an excellent explanation of the historical background of this railway legislation. Specifically, the NRAB was to resolve disputes in the railway industry arising out of the interpretation or application of collective bargaining agreements. 45 U.S.C.A. § 153. Such disagreements, known as “minor disputes”, relate

[Ejither to the meaning or proper application of a particular [collective bargaining agreement] provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation, or asserted one, independent of those covered by the collective bargaining agreement____

Elgin J. & E. Railway Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886, 1894 (1945). It is clear that in establishing the NRAB, the Congress intended that such disputes would be resolved by an agency with special expertise in the railroad industry. Hudie v. Aliquippa & S.R. Co., 249 F.Supp. 210 (W.D.Pa.1966). It has also been held that the intent of the legislation was to leave minimum responsibility to the courts. Taylor v. Hudson Rapid Tubes Corp., 362 F.2d 748 (3rd Cir.1966).

The Appellants strenuously argue that their claims do not constitute a “minor dispute”. They maintain that their action is not related to a collective bargaining contract dispute, but is based upon an entirely separate breach of contract claim. They assert that the Appellee violated the terms of the individual contractual offers of employment it made, upon which each Appellant purportedly relied in accepting his respective job with the Appellee.

We cannot agree that the instant dispute is unrelated to the collective bargaining agreement which covers these employees, and further, cannot conclude that the claims raised by the Appellants in this action, while clothed in the rubric of a state common-law cause of action, are properly excluded from the broad genus of railway industry cases assigned by the Congress to exclusive resolution by the NRAB. Simply stated, to allow the Appellants to proceed in our state courts in this case would exalt form, in the nomenclature used in the Appellants’ pleading, over substance, in terms of the realities of the case.

The Appellants have previously challenged the propriety of the actions of their employer, before the NRAB, and sought to be reinstated to the positions in which they were originally hired, but which eventually were vacated and then awarded to other employees who had more seniority than the Appellants. Such action was taken by the Appel-lee because of the provisions of the applicable labor agreement covering the jobs. In the NRAB case, the Appellants based their claims upon the same individual contract rights which they rely upon for support in claiming damages in the instant action. The NRAB held that such individual rights conflicted with the collective bargaining contract rights of the union membership at large, and declared that the provisions of the collective bargaining agreement must prevail over any individual employment agreements. The Appellants’ requests for relief were denied.

All of the Appellants’ claims in this case are inextricably entwined with their rights under their collective bargaining agreement. In essence, they disagree with the manner in which that contract was applied to them, in view of the individual circumstances of their respective hirings. Because their rights under the collective bargaining agreement vis-a-vis their alleged individual employment agreements has already been ruled upon by the NRAB, our state courts have no jurisdiction to pass upon the same contentions. It is clearly not the right of the courts in our Commonwealth to review the fairness or propriety of NRAB decisions, nor to address “minor disputes”, a function which Federal legislation places within the exclusive jurisdiction of the NRAB.

Our conclusions in this case are guided by clear precedent from the United States Supreme Court and other Federal courts in analogous cases. In Union Pacific Railroad Company v. Price, supra, the Court was presented with a situation in which a discharged employee, who had unsuccessfully contested his dismissal before the NRAB, thereafter sought damages from his employer in a commonlaw wrongful discharge case instituted in the District Court. Writing for the Majority, Justice Brennan thoroughly explained the legislative history leading to the 1934 birth of the NRAB, and then stated:

Plainly the statutory scheme as revised by the 1934 amendments was designed for effective and final decision of grievances which arise daily, principally as matters of the administration and application of the provisions of collective bargaining agreements. This grist of labor relations is such that the statutory scheme cannot realistically be squared with the contention that Congress did not purpose to foreclose litigation in the courts over grievances submitted to and disposed of by the Board ... To say that the discharged employee may litigate the validity of his discharge in a common-law action for damages after failing to sustain his grievance before the Board is to say that Congress planned that the Board should function only to render advisory opinions, and intended the Act’s entire scheme for the settlement of grievances to be regarded “as wholly conciliatory in character, involving no element of legal effectiveness, with the consequence that the parties are entirely free to accept or ignore the Board’s decision * * * [a contention] inconsistent with the Act’s terms, purposes and legislative history.” Elgin J. & E.R. Co. v. Burley, 325 U.S. 711, 720-721, 65 S.Ct. 1282, 1288 [89 L.Ed. 1886, 1892]. 360 U.S. at 616-17, 79 S.Ct. at 1359-60, 3 L.Ed.2d at 1469-70.

Thus, the Majority made it clear that an employee who contests his employer’s conduct in NRAB proceedings should not be given access to the courts to relitigate the same dispute in a commonlaw action for damages.

The Dissenting Justices in the Union Pacific Railroad Company case raised the same rationale that the Appellants assert before us in the instant appeal — that the claims in issue were for money damages in a separate cause of action, and not for the type of collective bargaining relief, including backpay, as might be available from the NRAB. In expressing that view, the Dissenters relied in part upon the holding in Moore v. Illinois Central Railroad Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941). Moore was a case in which it was held that a railroad employee who was discharged could elect to challenge his employer's alleged breach of the employment contract in a state court contract action, rather than take it before the NRAB. Basically, the conclusion of the Court in Moore was that the procedures for the resolution of “minor disputes” under the Railway Labor Act were optional, rather than compulsory.

The holding of Moore was reexamined in Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), and was expressly overruled. The Andrews case provides illustrative guidance in the instant case. In Andrews, as in Moore, the railway employee instituted a court action seeking damages for wrongful discharge. He had not previously resorted to procedures before the NRAB. In overruling Moore, and directing the employee to avail himself of the NRAB procedure for the resolution of his claims, the Majority in Andrews discussed the policy of requiring the exhaustion of administrative remedies. In doing so, the Majority declared:

The term “exhaustion of administrative remedies” in its broader sense may be an entirely appropriate description of the obligation of both the employee and carrier under the Railway Labor Act to resort to dispute settlement procedures provided by that Act. It is clear, however, that in at least some situations the Act makes the federal administrative remedy exclusive, rather than merely requiring exhaustion of remedies in one forum before resorting to another. A party who has litigated an issue before the Adjustment Board on the merits may not relitigate that issue in an independent judicial proceeding. * * * He is limited to the judicial review of the Board’s proceedings that the Act itself provides. * * * In such a case the proceedings afforded by 45 U.S.C. § 153 First (i), will be the only remedy available to the aggrieved party. 406 U.S. at 325, 92 S.Ct. at 1565, 32 L.Ed.2d at 100. (citations omitted; emphasis supplied)

Thus, the Majority of the Court in Andrews made it clear that after a railway employee dispute has been presented to the NRAB for resolution, an employee who has been a party to such proceedings may not attempt to relitigate the dispute in court.

The precedental value of the Majority holding in Andrews to the resolution of the issues in dispute in the instant appeal is made more evident by a referral to Justice Douglas’ Dissenting Opinion in Andrews. Justice Douglas went to great pains to explain that the employee in the case was not seeking a collective bargaining remedy, but rather sought damages because of his employer’s alleged wrongful conduct under Georgia contract law. Clearly, the Supreme Court Majority found that argument to lack merit. One cannot fail to draw an analogy between the arguments proferred by the Appellants in the instant case and the unsuccessful position taken by the employee in Andrews. Unfortunately for the Appellants, the Majority of the Supreme Court, to which we must adhere, found that railway employees are bound by statute to initially direct such disputes to the NRAB, and cannot thereafter relitigate such disputes under state common-law theories.

Other Federal Court decisions in comparable situations also provide guidance to us suggesting the correctness of the decision reached by the Delaware County Court in this case. In Magnuson v. Burlington Northern, Inc., 576 F.2d 1367 (9th Cir.1978), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978), a discharged employee instituted an action in state court, later removed to Federal Court, asserting that he was entitled to damages for the intentional infliction of emotional distress from his employer, arising from the circumstances of his discharge. The Court determined that the plaintiff employee’s claims were either arguably covered by or even had a “ 'not obviously insubstantial’ relationship to the labor contract.” Magnuson, Id. at 1369. Thus, the Court held that the claims had to be classified as a “minor dispute”, subject to the administrative process allowing resolution by the NRAB.

A similar conclusion was reached by the United States District Court for South Carolina in Carson v. Southern Railway Company, 494 F.Supp. 1104 (D.C.S.C.1979), a case in which the employee brought a defamation action against his railway employer as a result of alleged statements by a supervisor that the employee was intoxicated on duty. In reliance upon the Supreme Court’s Andrews decision, the District Court held that even though the action was instituted on state common-law grounds seeking damages, it had to be categorized as a “minor dispute” because it evolved out of an employment disagreement in which the terms of the applicable collective bargaining agreement, relating to employee intoxication, had to be considered.

A factual situation highly analogous to that presented in this appeal was evident in McKinney v. International Association of Machinists, 624 F.2d 745 (6th Cir.1980). In that case a group of railroad employees sued their employer and their union. They asserted that they had entered a training program after being assured by their employer that this was the only route whereby they could obtain seniority and journeyman mechanic status. They were also advised by the employer that it would not directly hire journeymen off of the street, except in an emergency situation. Notwithstanding such alleged promises, the employer hired several others as journeyman mechanics, in non-emergency circumstances. Several of these newly-hired individuals, pursuant to a subsequent agreement between the employer and the union, were established as journeymen mechanics. The plaintiffs thereupon filed a breach of contract claim against the employer, asserting that the newly-hired employees were wrongfully promoted ahead of the plaintiffs, and in violation of the plaintiffs’ agreements with the employer. The plaintiffs asserted that the employer’s conduct cost them the loss of salary and job seniority. With respect to the union, their suit claimed a breach of the duty of fair representation.

The District Court in McKinney held that the plaintiffs’ claims against the employer must be held to constitute a “minor dispute” under the Railway Labor Act, thereby vesting the NRAB with primary and exclusive jurisdiction over the controversy. The Court of Appeals affirmed on the same rationale. In doing so, it pointed out that the seniority issue in dispute was dealt with in the collective bargaining agreement between the employer and the union. Thus, since the resolution of the problem would involve the terms of the collective bargaining agreement or interpretations thereof, the Court of Appeals ruled that it must be considered a “minor dispute”, subject to the primary and exclusive jurisdiction of the NRAB.

All of these precedents require the same conclusion here. Employees of a railway are placed in a special legal position with regard to disputes with a railway employer. The legislation described above, and applicable court decisions, make it clear that such employees must submit any dispute which may include the analysis of collective bargaining agreements and the rights of employees covered by them, to the administrative processes of the NRAB. It is impossible to evaluate the Appellants’ contract claims in this case without reference to their rights under the applicable collective bargaining agreement. Moreover, it cannot be ignored that the NRAB has already passed upon the Appellants’ contentions that their contract rights were violated by the Appellee’s conduct. They cannot relitigate such arguments in a different form of action in our courts. Therefore, it is evident that the Delaware County Court of Common Pleas acted properly in vacating its earlier verdict for the Appellants, and in rendering judgment n.o.v. to the Appellee, on jurisdictional grounds.

The order of the lower court is hereby affirmed.

      . Counsel for both parties had stipulated to an extension of the time for filing exceptions pursuant to Pa.R.C.P. 248. On September 20, 1982, the court sustained the exceptions and entered a judgment n.o.v. in favor of AMTRAK. The Appellants filed a notice of appeal with this Court on October 15, 1982, and then petitioned the lower court for reconsideration. On October 20, 1982, the trial court granted reconsideration. Thereafter, the appeal to this court was stricken. On December 10, 1982, the trial court dismissed the application for reconsideration. The instant appeal was filed on December 21, 1982.

      . Affirmed, 360 F.2d 213 (3rd Cir.1966).

      . The Federal District Court had jurisdiction of this common-iaw action because of the diversity of citizenship of the parties.

      . Although in Andrews, the suit was initiated in the Georgia state courts, it was removed to the United States District Court at its inception.

      . This is another case which was initiated in state court but then removed to the Federal courts.


author: OLSZEWSKI, Judge:

text:
    494 A.2d 399
    COMMONWEALTH of Pennsylvania, Appellant, v. Andrew REVTAI.
    Superior Court of Pennsylvania.
    Argued March 5, 1985.
    Filed April 26, 1985.
    Reargument and Reconsideration Denied June 28, 1985.

      Dara A. Decourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    William Sittig, Pittsburgh, for appellee.

      Before OLSZEWSKI, HESTER and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OLSZEWSKI, Judge:

The Commonwealth appeals from an order of the Court of Common Pleas of Allegheny County granting appellee-An-drew Revtai’s motion for writ of habeas corpus and dismissing charges of driving under the influence of alcohol or controlled substance.

Appellee-Revtai was arrested on May 25, 1983 and charged with driving under the influence. 75 Pa.C.S. Sec. 3731. Appellee was not immediately taken before the issuing authority, but was released without arraignment pursuant to Pa.R.Crim.P., Rule 130(b), 42 Pa.C.S. A complaint was filed on May 31, 1983, six days after the arrest.

At his preliminary hearing, appellee requested that the charges be dismissed based on the Commonwealth’s failure to file a complaint within five days of arrest under Rule 130(d). This request was denied. Appellee filed a motion for writ of habeas corpus on August 18, 1983, again based upon the Commonwealth’s failure to comply with Rule 130(d). From the granting of the motion, the Commonwealth appeals.

One issue is presented for our review: whether the lower court correctly dismissed the charges, under Rule 130(d), where the Commonwealth failed to file a complaint within five days of appellee’s arrest. After careful consideration of this issue of first impression, we affirm the order of the court below.

Rule 130, Procedure in Court Cases initiated by Arrest Without Warrant, states in pertinent part:

(b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or controlled substances, the arresting officer may, when he deems it appropriate, promptly release the defendant from custody rather than taking him before the issuing authority.
* # # * * *
(d) When a defendant is released pursuant to paragraph (b) ... a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued, and the case shall proceed as provided in Rule 110.

Rule 130(b) and (d), Pa.R.Crim.P., 42 Pa.C.S., amended January 28, 1983, effective July 1, 1983.

Where the words of a statute are clear, the letter thereof will not be disregarded under the pretext of pursuing an unstated legislative intent. Commonwealth v. Duncan, 279 Pa.Super. 395, 421 A.2d 257 (1980). We find that Rule 130(d) is not merely directory, but mandatory in its plain meaning that a complaint must be filed within five days of arrest and release.

The legislative history, preceding enactment of Rule 130, is most instructive. Rule 130 was originally adopted as Pa.R.Crim.P., Rule 118, 42 Pa.C.S. in 1964 and has been amended four times before achieving its present form in 1981. In its initial form, the rule provided only that a defendant was to be taken promptly before the proper issuing authority and an immediate preliminary arraignment held. The rule was amended to provide for a defendant’s release in certain instances, pending the filing of a complaint. The amended rule did not impose a time limit for filing the complaint nor mandate sanctions for unnecessary delay in filing. Case law, interpreting the rule in this form, reviewed the standard of unnecessary delay in view of the reasons for delay balanced against substantive prejudice to a defendant.

The most recent amendment to Rule 130 provides a clear and uniform requirement for the courts to apply. The evolution of the rule effectuates a legislative and judicial policy toward eliminating guesswork as to what constitutes “unreasonable delay.” The rule unequivocally establishes five days from the date of a defendant’s release as a time limit for the issuance of a criminal complaint.

Dismissal of charges is the appropriate remedy for a violation of the five day deadline. There is no reason imaginable, nor did the Commonwealth offer any excuse, why the arresting officer cannot file a criminal complaint within five days. Delay in the criminal process is inherently prejudicial. In situations where our courts allow reasonable delay, it is the Commonwealth which bears the burden of justifying a delay rather than a defendant required to show prejudice. See Pa.R.Crim.P., Rule 1100(c), 42 Pa.C.S. (Commonwealth must show due diligence in efforts to avoid delay in bring defendant to trial); Pa.R.Crim.P., Rule 303, 42 Pa.C.S. (Commonwealth must show cause for delay in arraignment); See also Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) (unnecessary prearraignment delay). Dismissal is the only effective remedy available to enforce the rule.

The Commonwealth urges that Rule 130 should be interpreted in light of Pa.R.Crim.P., Rule 150, 42 Pa.C.S., which states:

A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of the complaint, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.

We hold that the specific application of Rule 130(b) and (d) to the circumstances of this case controls and is an exception to the general statement of policy defined by Rule 150. See 1 Pa.C.S. Sec. 1933; Commonwealth v. Bidner, 282 Pa.Super. 100, 422 A.2d 847 (1980).

Our conclusion today rests upon full consideration of the competing interests of the Commonwealth in securing justice and of the individual in the full enjoyment of his rights to due process. A defendant must be able to rely on specific time limitations promulgated by the Criminal Rules Committee under authority delegated through the Supreme Court by the legislature.

The order is affirmed.

      . A breathalyzer test administered showed that appellee had a .23% blood alcohol concentration.

      . See "Discussion of Proposed Amendments", Pennsylvania Bulletin Vol 11, No. 5, Saturday, January 31, 1981, p. 497:
      The Committee was concerned, however, that this portion of present Pa.R.Crim.P. 130(b) is not entirely clear that a complaint should be filed promptly after a defendant is released____ To avoid misinterpretation the Committee agreed that a specific time period should be established for filing a complaint____


author: MONTEMURO, Judge:

text:
    494 A.2d 402
    COMMONWEALTH of Pennsylvania v. David MALDONADO, Appellant. COMMONWEALTH of Pennsylvania v. Samuel MALDONADO, Appellant.
    Superior Court of Pennsylvania.
    Argued May 22, 1984.
    Filed May 3, 1985.
    Reargument Denied June 28, 1985.
    Petition for Allowance of Appeal Denied Dec. 10, 1985.

      Daniel H. Green, Philadelphia, for appellant (at 206).
    Leonard Zack, Philadelphia, for appellant (at 492).
    Sandra Adler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   MONTEMURO, Judge:

This is a consolidated appeal from .the judgments of sentence. The appellants, David and Samuel Maldonado, are brothers.

Appellants were tried before the Honorable Charles L. Durham of the Court of Common Pleas of Philadelphia sitting without a jury.

Each appellant was found guilty of second degree murder, criminal conspiracy, robbery, and possession of instrument of crime.

Following the denial of post-trial motions, each appellant received the same sentence, namely, life imprisonment for second degree murder and a concurrent sentence of five to ten (5-10) years for criminal conspiracy.

Both appellants say that the trial court erred (a) in refusing a request for a view of the crime area, and (b) in refusing to order a mistrial when it was clear that the prosecution had violated the court’s order of sequestration of witnesses. We are convinced from our own independent review of the entire record of each appellant, including the briefs of counsel, that these claims are completely without merit. The trial judge had adequately addressed these issues and properly dismissed them.

Appellant, David Maldonado, also argues in this appeal that Section 3701, Subsection (a)(2) of the Pennsylvania Crimes Code should be struck down as unconstitutional because of vagueness. However, since this claim of error was never raised in appellant David Maldonado’s post-verdict motions, it is waived and will not be considered. Commonwealth v. Manigault, 501 Pa. 506, 509, 462 A.2d 239, 240-41 (1983). Commonwealth v. Gravely, 486 Pa. 194, 198-99, 404 A.2d 1296, 1297-98 (1979).

Both appellants, albeit for different reasons, assert that the evidence was insufficient to prove beyond a reasonable doubt that appellant had committed a robbery and a theft; hence, a conviction of second degree murder under the felony-murder rule was improper.

Appellant David Maldonado also argues that the evidence was insufficient to support a finding of guilty as to the crimes of criminal conspiracy and possession of instrument of crime.

In reviewing a motion in arrest of judgment, whether the finder of fact is a jury or a judge sitting without a jury, “the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences therefrom. The effect of such a motion is to admit all the facts which the Commonwealth’s evidence tends to prove. See, Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65, 93 A.L.R.2d 616 (1959), and Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492 (1956). Also, in passing upon such a motion, all evidence actually received must be considered, whether the trial rulings therein were right or wrong.” Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965) (emphasis in original); accord; Commonwealth v. Winebrenner, 439 Pa. 73, 77-78, 265 A.2d 108, 111, (1970); Commonwealth v. Parker, 305 Pa.Super. 516, 524, 451 A.2d 767, 770-71 (1982).

“In testing the sufficiency of the Commonwealth’s evidence, we proceed in several steps. First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. This inquiry is bounded by two poles. On the one hand, the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence. On the other hand, guilt must be proved; mere conjecture or surmise is not sufficient.” Commonwealth v. Herman, 271 Pa.Super. 145, 148-49, 412 A.2d 617, 619 (1979).

Considered in the light of the above mentioned standards, tests and principles, the salient facts are as follows: On August 13, 1980, on a warm summer afternoon, Anthony Gustaitis (Anthony), his sister Mari, David Lightey and Patty Garwood went to the Devil’s Pool area of Valley Green Park in the City of Philadelphia for a picnic. During the course of the afternoon they met Steven Monahan (the decedent), his sister Noreen, Sophia Hartell and her boyfriend, Mark Miller. These two groups of young people, previously unacquainted, socialized for several hours. At approximately 6:00 p.m., the appellants David and Samuel Maldonado, Jesus Lisojo (Jesus), and Elvin Maldonado (Elvin), all young hispanic males, arrived on the scene and were invited to join the others. For some hours, until approximately 8:00 p.m., these young people entertained themselves by swimming, drinking beer, smoking “joints” and singing while Mark Miller played the guitar.

At about 8:30 p.m., David Lightey, Noreen, Mari and Patty had left the scene to get more beer and cigarettes. Elvin, apparently in the course of maneuvering over the rocks to get to the swimming hole, sprained his ankle and returned to his car which was parked in the parking lot adjacent to the Canoe House located near the picnic area. He was assisted by Jesus and the appellants, Samuel and David. While at the car, Elvin heard Jesus and the appellants say they were going to take the “white kids’ box.” Elvin saw that they were each armed with a steak knife which he heard them say they had already stolen from the box. Elvin fell asleep in his car while Jesus and the appellants returned to the picnic area.

Anthony, who had remained at the picnic area with the decedent, Mark Miller and Sophia, testified that suddenly, appellant Samuel Maldonado seized the box containing items belonging to Anthony’s group and began to run away, followed by appellant David Maldonado and Jesus. After about ten seconds, Anthony gave chase. At first, the decedent just sat there, but then after several moments, he joined Anthony in the chase.

Moments later Anthony saw appellant Samuel Maldonado sitting on a log and going through the box. The log was about 60 feet from the picnic scene. When Anthony caught up with Samuel, he grabbed him by the shirt but his brother, appellant David Maldonado, pushed him off, knocking him to the ground. Anthony said that when he grabbed Samuel by the shirt, at that time or just prior thereto, he saw Samuel discard the box. He ws not sure where this took place and that Samuel didn’t throw the box but “like kept it.” From the record, while it is not clear whether the decedent saw the box being discarded, the evidence seems to indicate that the box had already been discarded when he caught up to Anthony at the log. (N.T. at 62, 65, 66) As soon as appellant David Maldonado had pushed Anthony off, they continued to flee the scene.

Anthony and the decedent took up their pursuit and Anthony said that at no time during the chase did he ever speak to the decedent. They pursued appellants along a track which led to the parking lot. The Canoe Club is located adjacent to the parking lot and when they arrived there, they went in different directions, the decedent going behind the Canoe Club building and Anthony going along the path of the driveway to the parking lot.

Anthony had lost sight of the appellants and the decedent, and, when he arrived at the parking lot, which was twenty seconds after he left decedent, he observed Jesus letting the air out of the tires of the decedent’s automobile, apparently to prevent pursuit. Although Anthony recognized Jesus, apparently believing at that point in time that discretion was the better part of valor, he merely inquired if Jesus had seen the appellants. Jesus said he thought he saw appellant David Maldonado running from the bushes about 50 feet off the road. Anthony’s search of the area was unrewarding and so he returned to the picnic area to see if he could find the decedent. When he could not find him there, he returned to the parking lot. After about two minutes, he was joined by his sister, Mari, David Lightey, and decedent’s sister, Noreen Monahan. Mark Miller and Sophia Hartell had already arrived at the parking lot while Anthony had gone back to the picnic site. Together, they all set out to search for the decedent. Anthony went down to the Canoe Club and found the decedent near the Canoe Club building. He was unconscious and lying on his back. Anthony yelled for the others to join him. While waiting for the police to arrive, they noticed a pool of blood coming from the bottom of the decedent’s back. He had been stabbed twice in the back.

Elvin, who had fallen asleep in the car, testified that he was awakened by Jesus and was told by him that fighting was taking place. He then saw Jesus let the air out of the decedent’s automobile tires. As several white youths approached them, Elvin said they drove away. As they were leaving the area, they saw appellants on the road and picked them up. While seated in the car, Elvin heard appellant David Maldonado say, “I think I killed him” and he, appellant David Maldonado, started to cry. He observed appellant, Samuel Maldonado, throw a knife out of the car window as they drove to see Lucy Lisojo.

Lucy Lisojo, the sister of Jesus, testified that at about 10:00 p.m. that evening, appellants, David and Samuel Maldonado, Elvin and Jesus, arrived at her sister’s home in Philadelphia. Appellants told her what had happened. Appellant David Maldonado told her that he had said, “Let’s steal the knife first and then I will take the box,” believing there may have been money in the box. Appellant David Maldonado explained that his brother, Samuel took the knife from the table in the picnic area before taking the box. Appellant David Maldonado told Lucy that he had given his brother, Samuel, a knife and that he stabbed decedent to death with a second knife taken from his sock when he saw decedent beating his brother, Samuel. Appellants told her that Samuel was being punched by decedent. Lucy testified that no one ever said that appellant Samuel Maldonado was being stabbed or that the decedent had a knife. She also testified that appellant David Maldonado stated that he cut his leg when he fell on a piece of tree and he never told her that he had been stabbed by the decedent. She also testified that appellant, David Maldonado, at a later date, asked her for $100.00 to enable him to leave Philadelphia because he had killed a boy. In her presence, appellant David Maldonado had threatened to kill Jesus if Jesus “went over to the side of the white people.”

Shortly after the incident, appellant Samuel Maldonado and his mother went to Florida, and appellant David Maldonado fled to the State of Washington.

The trial testimony revealed that the decedent was taken to Chestnut Hill Hospital where he was pronounced dead. An autopsy performed the following day by the medical examiner’s office, established that decedent had received two stab wounds to the back, one of which penetrated the body 3V2 inches, severing the aorta and causing death. A search of the area where the body was found yielded a bloodstained 5 inch knife used to kill decedent.

The box which appellant Samuel Maldonado had stolen was found emptied of its contents approximately 30 feet from the picnic area. The contents, a report card, a ten dollar ($10.00) bill, one brown wooden handled steak knife, one pink comb, one pink brush, one red towel and one black sock were found in the grass and dirt in the Devil’s Pool area north of the Canoe Club.

The crime of criminal conspiracy is defined and set forth in 18 Pa.C.S. § 903. It reads in pertinent part as follows: Criminal Conspiracy

(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in planning or commission of such crime or of an attempt or solicitation to commit such crime.

The crime of possession of instrument of crime is defined and set forth in 18 Pa.C.S. § 907. It reads in pertinent part as follows:

Possessing instruments of crime
(a) Criminal instruments generally. — A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.
(b) Possession of weapon. — A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.
(c) Definitions. — As used in this section the following words and phrases shall have the meanings given to them in this subsection.
“Instrument of crime.”
(1) Anything specially made or specially adopted for criminal use; or
(2) Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.
“Weapon.” Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have. The term includes a firearm which is not loaded or lacks a clip or other component to render it immediately operable, and components which can readily be assembled into a weapon. 1972, Dec. 6, P.L. 1482, No. 334 § 1, effective June 6, 1973.

With regard to both appellants’ claims of insufficient evidence to find them guilty beyond a reasonable doubt of the crimes of criminal conspiracy and possession of instrument of crime, we find that the evidence was more than sufficient to sustain these verdicts. Therefore, these claims are dismissed as being without merit.

The only claim remaining which merits discussion, is appellants’ assertion that the evidence was insufficient to prove, beyond a reasonable doubt, that appellants had committed a robbery and a theft, and, therefore, a conviction of second degree murder under the felony-murder rule was improper.

A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony. 18 Pa.C.S. § 2502(b).

Perpetration of a felony is defined as: “The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery — ” 18 Pa. C.S. § 2502(d).

The felony of robbery is defined in pertinent part as follows:

(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury ...
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(2) An act shall be deemed ‘in the course of committing a theft’ if it occurs in an attempt to commit theft or in flight after the attempt or commission.

18 Pa.C.S. § 3701.

Appellant David Maldonado argues that, even conceding the Commonwealth’s evidence, all that the Commonwealth ever proved was a theft — not a robbery. Appellant David Maldonado would have us rule that once appellant Samuel Maldonado discarded the box, the theft was over and at that point, Anthony Gustaitis and the decedent, Steve Monahan, were obliged to pick up the box and go on with their picniking and, further, since they didn’t, decedent has no one to blame but himself for never being able to celebrate his twentieth birthday. Further, appellant David Maldonado argued that he acted in self defense when he stabbed decedent to save his brother.

Appellant Samuel Maldonado argues that a theft never occurred but even if a theft did occur, he never participated in a robbery. He further argues that the use of deadly force was not a foreseeable part of the conspiracy.

Unfortunately for appellants, they are able to buttress their arguments by reliance on facts which were discredited by the trial judge. More importantly, appellants’ arguments totally ignore one standard of review which we have set forth supra at p. 158.

Prior to the enactment of the 1972 Crimes Code, our statutes did not define the crime of robbery. Rather, we defined it by its common-law definition:

[Robbery] is the felonious and forcible taking from the person of another of goods or money to any value by violence or putting in fear. Penal Code of 1939, Act of June 24, 1939, P.L. 872, § 704, 705, formerly 18 P.S. § 4707, § 4705 and Act of March 31, 1860, P.L. 382, § 102.

The 1972 Crimes Code significantly changed the old robbery statute. In its place, the legislature adopted almost verbatim the language of § 222.1 of the Model Penal Code. 10 Uniform Laws Annotated, Master Edition. The 1972 Crimes Code used the language of the Model Penal Code in defining robbery as a taking “in the course of committing a theft” if the theft “inflicts or threatens another with or intentionally puts him in fear of serious bodily injury” or “commits or threatens immediately to commit any felony of the first or second degree;” and defines “in the course of” theft to include “flight after the attempt or commission of the theft.” The reason for this change from common-law notions is expressed as follows in the Model Penal Code § 222.1, Comment (Tent. Draft No. 11, 1960): “The thief’s willingness to use force against those who would restrain him in flight strongly suggests that he would have employed it to effect the theft had there been need for it.” See W.F. LaFave and A.W. Scott, Jr., Handbook on Criminal Law, (1972) Chapter 8, Section 94, p. 701 n. 56.

In 1976, the legislature decided to go even further than the Model Penal Code when it amended the 1972 Act by adding subparagraphs (iv) (“inflicts serious bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury”) and (v) (“phys-

While we too may agree, or for that matter disagree, with the trial judge that a mandatory life sentence is not warranted in the case, the issue of the sentence is not the question we are called upon to decide. ically takes or removes property from the person of another by force however slight”). 1976 June 24, P.L. 425, No. 102, § 1 immd. effective.

Under 18 Pa.C.S. § 3701(a)(2), “in the course of committing a theft” is unusual only insofar as it makes classification of robbery depend in part on behavior after the theft might be said to be accomplished. In elaborating upon this latter definition, Comment to the Model Penal Code (upon which the Pennsylvania Crimes Code definition is based) offers no “rule of thumb ... to delimit the time and space of ‘flight,’ ” but does observe that

“[t]he concept of ‘fresh pursuit’ will be helpful in suggesting realistic boundaries between the occasion of the theft and a later distinct occasion when the thief is apprehended.”

American Law Institute, Model Penal Code § 222.1 Comment at p. 70 (Tentative Draft No. 11, pp. 68-72, April 27, 1960). See also Commonwealth v. Barkley, 335 Pa.Super. 389, 484 A.2d 189 (1984).

There can be no doubt that in this case there was “fresh pursuit” and “no break in the chain of events” from the time the box was stolen until decedent met his death during appellants’ attempt to escape. Appellants and Jesus Lisojo conspired to steal the box and, in preparation of the theft, they armed themselves with stolen knives. The knives were steak knives and they belong to Anthony Gustaitis and his group. Appellant Samuel Maldonado stole the box and fled, followed by appellant David Maldonado and Jesus Lisojo. Anthony Gustaitis and the decedent (Steve Monahan) gave chase. Anthony caught up with Samuel and grabbed him by the shirt, but he was knocked to the ground by appellant David Maldonado, who at the time was armed with a knife. This threat of immediate bodily injury constituted robbery. 18 Pa.C.S. § 3701(a)(l)(iv). The robbery statute, as we have indicated, provides that an act is deemed “in the course of committing a theft” if it occurs in flight after the attempt or commission. 18 Pa.C.S. 3701(a)(2). Within seconds, or at the most minutes, the decedent was killed while appellants were still in flight and acting in concert. Therefore, even in the absence of Anthony being knocked to the ground, the robbery was established when the decedent was fatally stabbed. 18 Pa.C.S. § 3701(a)(l)(i).

The fact that the fatal injury was inflicted after the box was discarded, while appellants were fleeing from the scene of the crime, does not under the facts of this case, preclude a conviction of robbery. The theft became a robbery when either Anthony was knocked to the ground or when the decedent was fatally stabbed.

We hold therefore that the evidence was sufficient to support a conviction for the crime of murder in the second degree. There was a robbery and the decedent was killed during the perpetration of that robbery.

For all of the above reasons, the Judgments of Sentence are affirmed.

      . 18 Pa.C.S. § 2502(b).

      . Id. § 903.

      . Id. § 3701.

      . Id. § 907.

      . The trial court properly found that for purposes of sentencing, the robbery conviction merged with the conviction for second degree murder. The court suspended sentence on the conviction of possession of instruments of crime.

      . We note that appellant David Maldonado’s post-verdict motion in arrest of judgment alleges that "the lower court’s verdict was improper in that it was based on a complete misunderstanding of Section 3701, Subsection (2), of the Pennsylvania Crimes Code.” (Appellant David Maldonado’s Brief at p. 13). Because we find that the trial court did not misunderstand the law, we could summarily dismiss this claim; instead, since appellant has raised the issue under a post-verdict motion in arrest of judgment and, although somewhat circuitously, appears to be arguing in his brief a claim of insufficiency, we shall treat this claim as though appellant David Maldonado is asserting that the evidence was insufficient to sustain a verdict of guilty as to second degree murder arising out of a killing in the perpetration of a felony. "The proper procedure to challenge the sufficiency of the evidence is by a post-verdict motion in arrest of judgment. See 19 P.S. § 871, repealed by Act of April 28, 1978, P.L. 202 No. 53, § 2(a), Pa.R.Crim.P. 1124 effective July 1, 1983. Order of January 28, 1983, No. 112, Criminal] Pros[ecution] Rules Docket No. 2. If the defendant only wishes to challenge the weight of the evidence, the proper procedure is by a post-verdict motion for a new trial.” Commonwealth v. Holmes, 315 Pa.Super. 256, 260, 461 A.2d 1268, 1270 (1983).
      Although we are unable to perceive from the record whether appellant, Samuel Maldonado’s post-verdict motions are for a new trial or in arrest of judgment, we are satisfied from the content of his written motions, his arguments before the trial court and his appellate brief, that his challenge to the judgment of sentence for second degree murder (felony-murder) is also predicated on an insufficiency of evidence claim.

      . Anthony was not yet 17 years of age.

      . Steven was 19 years of age.

      . Samuel was 18 years of age; David was 28. Elvin Maldonado was not related to either Samuel or David Maldonado.

      . The Canoe Club building is approximately 750 feet from the picnic area known as Devil’s Pool.

      . Jesus Lisojo, at the time of trial and apparently still, is a fugitive from justice.

      . Appellant David Maldonado testified, on the contrary, that decedent or his friend had stolen their radio, that they were simply trying to recover their radio and appellant David Maldonado stabbed decedent in self-defense because he believed decedent was about to fatally wound his brother with a knife. The trial court, obviously, gave no credence to this testimony. The knife allegedly possessed by the decedent was never found in the police search, but the murder weapon was.

      . Appellant, David Maldonado, in what he has captioned a "Special Memorandum to the Judges of the Supreme Court,” correctly quotes the trial judge as having said, "'... I would not feel terrible if they (meaning the Judges of the Supreme Court) reverse my verdict ...’ ” However, it is clear from the trial judge’s ruling on post-verdict motions and his well written Opinion that his problem was not with the law but rather with the mandatory life sentence for a conviction of second degree murder. The trial judge also said, just before the aforementioned quote: "I want the appeals court to know the only reason that I am sentencing you to a mandatory sentence, on the record, of life is because of a statute, otherwise I don’t think this case warrants a life sentence.” Both quotations appear in the Notes of Testimony of the Sentencing Hearing at page 54.

      . We reject appellants’ claims of self defense as not being supported by the record and being totally contrary to statute, 18 Pa.C.S. §§ 505(b)(2), 506(a)(1); Commonwealth v. Black, 474 Pa. 47, 52-53, 376 A.2d 627, 630 (1977).


author: HESTER, Judge:

text:
    494 A.2d 409
    Robert G. WELSCH, Nicholas J. Fortunato, Ronald D. Wheatley, James R. Dumont, Individually and on behalf of all persons in the Commonwealth of Pennsylvania Similarly Situated, Appellants v. AETNA INSURANCE COMPANY, Allstate Insurance Company, American States Insurance Companies, Commercial Union Insurance Company, Continental Insurance Companies, CNA Insurance, Erie Insurance Exchange, Firemen’s Fund American Insurance Companies, Great American Insurance Companies, the Hartford Accident and Indemnity Company, Insurance Company of North America, Kemper Insurance Companies, Liberty Mutual Insurance Companies, Motorists Insurance Companies, Nationwide Mutual Insurance Company, Ohio Casualty Insurance Company, State Farm Mutual Automobile Insurance Company, St. Paul Fire and Marine Insurance Company, Travelers Insurance Companies, Transamerica Insurance Group, U.S.F. & G. Insurance Companies, U.S. Insurance Group.
    Superior Court of Pennsylvania.
    Argued Aug. 7, 1984.
    Filed May 10, 1985.
    Reargument Denied July 9, 1985.

      Harold Gondelman, Pittsburgh, for appellants.
    James J. McCabe, Jr., Philadelphia, for Aetna, appellees.
    Anthony Vale, Philadelphia, for Hartford, appellee.
    Jeffrey B. Clay, Harrisburg, for Nationwide, appellee.
    Before BROSKY, WATKINS and HESTER, JJ.
   HESTER, Judge:

On September 27, 1984, the Supreme Court held that gender-based automobile insurance rates were “unfairly discriminatory” within the meaning of the Casualty and Surety Rate Regulation Act (hereinafter “Rate Act”). See Hartford Accident and Indemnity Co. v. Insurance Commissioner of the Commonwealth of Pennsylvania, 505 Pa. 571, 482 A.2d 542 (1984). In doing so, it affirmed the order of the Insurance Commissioner of Pennsylvania (hereinafter “Commissioner”) rescinding his prior approval of gender-based automobile insurance rates.

In the case before us, appellants, a class consisting of male operators under the age of thirty-one years, seek damages as a result of being charged higher premiums pursuant to the gender classification utilized in the determination of rates. The lower court dismissed appellants’ complaint, finding that appellants failed to allege state action, and finding that the Commissioner retained exclusive jurisdiction over remedial claims. This appeal ensued.

For the reasons that follow, we concur in the finding of the lower court that it lacked jurisdiction, but must disagree with the determination that appellants failed to allege state action.

In their complaint, appellants alleged that the imposition by insurance companies of a sex-related criterion in the promulgation of rates is a violation of the Fourteenth Amendment to the United States Constitution and the Equal Rights Amendment (thereafter “E.R.A.”) of the Pennsylvania Constitution. Appellees contended in their preliminary objections that the complaint failed to allege state action in support of the claims of discrimination based thereon.

A complaint seeking relief pursuant to the equal protection provision of the Fourteenth Amendment must aver the presence of state action in order to allege a constitutional violation. Great American Federal Savings & Loan v. Novotny, 442 U.S. 366, 384, 99 S.Ct. 2345, 2355, 60 L.Ed.2d 957, 971 (1979). The federal constitution ensures the right to equal protection under the law, but only against state action, Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161, 1180 (1948), and not private action.

Appellants asserted in their complaint that they “paid premiums to insurance companies for and on behalf of male drivers whose rates were set by the use of gender discriminatory practices.” Appellants further averred that they were compelled to obtain insurance coverage in accordance with the laws of this Commonwealth in order to lawfully operate a vehicle in this jurisdiction.

Whether such averments are sufficient to constitute allegations of state action was addressed by our Court in Murphy v. Harleysville Mutual Insurance Company, 282 Pa.Super. 244, 422 A.2d 1097 (1980). Therein, appellant similarily alleged discrimination in the setting of automobile insurance rates by appellee and all other providers of automobile insurance in the Commonwealth. This Court found that appellant failed to allege state action in support of his claims for discrimination based upon the Fourteenth Amendment equal protection clause.

Although in Murphy appellant could not rely upon a ruling by the Commissioner that gender-based rates were in fact discriminatory, the determination that such a claim lacked identifiable state action was separate and apart from the underlying claim. We held that:

the challenged acts were carried out by the private party on its own initiative under the provisions of the Rate Regulatory Act which permits the fixing of rates based upon measured risk of loss, but were not required by the Commonwealth.... The fact that [Harleysville] elected to exercise the choice permitted by statute does not ... transform its election into state action.

Id., 282 Pa.Superior Ct. at 253, 422 A.2d at 1102. Thus, Murphy is binding as to appellants’ Fourteenth Amendment claim.

In the instant case, the lower court also relied upon Murphy when it sustained appellees’ preliminary objection that appellants had failed to allege a cause of action for relief under the E.R.A. Murphy held that state action was likewise a necessary element in maintaining a cause of action under the Pennsylvania E.R.A., and that the Commonwealth’s regulation of insurance rates was similarly insufficient state action to implicate the E.R.A.

However, the Supreme Court reached a different result when it considered this issue in Hartford. First, it observed that the application of the “state action” concept to the interpretation of an insurance statute was inappropriate. Rather, it noted that the state action test is limited to a determination of whether a state’s involvement in private activity is sufficient to justify the application of a federal constitutional prohibition of state action to that conduct. That Court then held:

[t]he rationale underlying the “state action” doctrine is irrelevant to the interpretation of the scope of the Pennsylvania Equal Rights Amendment, a state constitutional amendment adopted by the Commonwealth as part of its own organic law. The language of that enactment, not a test used to measure the extent of federal constitutional protections, is controlling.

Hartford Accident and Indemnity Co. v. Insurance Commissioner, supra 505 Pa. at 586, 482 A.2d at 549.

The Supreme Court then proceeded to find that all state and local government entities and officials are bound by the prohibition against sex discrimination embodied in the E.R.A. in their formulation, interpretation, and enforcement of regulations, ordinances, and .statutory as well as decisional law. Thus, the Court ruled that the Commissioner’s disapproval of discriminatory sex-based insurance rates comported with the E.R.A. and was an appropriate exercise of his statutory authority.

In reaching this decision, the Supreme Court neither discussed nor mentioned Murphy. However, the above-quoted language is so direct that Murphy must now be viewed as no longer followed with respect to its analysis of the E.R.A.

Consequently, we reverse the lower court in its conclusion that appellants failed to allege state action as to its claim of an E.R.A. violation. Such an averment is no longer necessary in light of the Supreme Court’s pronouncement in Hartford. Applying the appropriate scope of review when there is a challenge to the sustaining of preliminary objections, that all material facts set forth in the complaint as well as all inferences reasonably deductible therefrom are admitted as true, Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 465 A.2d 1231 (1983), appellants’ averments were sufficient to warrant a denial of appellees’ preliminary objections appertaining thereto.

However, for the reasons that follow, we affirm the lower court’s conclusion that it lacked jurisdiction to proceed, a fundamental stumbling block to any further action thereon.

The lower court held that the Court of Common Pleas was without jurisdiction to order a remedy for an improper rate. Rather, the jurisdiction over such matters was exclusively within the province of the Commissioner. In reaching that determination, the trial judge concluded that the legislature had vested the authority to provide relief from improper rating classifications with the Commissioner. The court acknowledged that the Rate Act did not specifically empower the Commissioner to order refunds after premiums had been assessed according to a rating plan subsequently disapproved. Nevertheless, relying upon § 13 of the Rate Act, which provides:

In addition to any power herein before expressly enumerated in this Act, the Commissioner shall have full power and authority, and it shall be his duty to enforce and carry out by regulations, orders, or otherwise, all and singular the provisions of this Act, and the full intent thereof____

40 P.S. § 1193(d), the court construed the Act as vesting the Commissioner with the power to fashion a remedy for insureds aggrieved by unfair rates.

This position is not new to the appellate courts of this Commonwealth. In Pechner, Dorfman, Etc., v. Pennsylvania Insurance Department, 499 Pa. 139, 452 A.2d 230 (1982), appellants, who were coal haulers, challenged their rates for black lung insurance in Commonwealth Court. Appellants’ action was dismissed with instructions to pursue administrative procedures mandated by the Insurance Company Law of 1921. Following an administrative hearing before the Commissioner, appellants’ premiums were re-evaluated and a partial refund was granted. An appeal was filed in which appellants challenged the initial refusal of the Commonwealth Court to entertain their action. The Supreme Court affirmed the Commonwealth Court’s original dismissal of their action, noting that appellants had failed to exhaust their administrative remedies.

In Pechner, the administrative remedy prescribed by the Insurance Company Law was couched in language comparable to that of the Rate Act, that is, general language directing aggrieved persons to obtain a review of the challenged rate by the Commissioner. Yet, in that case, the Commissioner did grant appellants’ request for relief by ordering a partial refund, and the Supreme Court implicitly recognized his authority to do so. See also Nagle v. American Casualty Co., 317 Pa.Super. 164, 463 A.2d 1136 (1983); Nagle v. Commonwealth Insurance Department ex rel Sheppard, 48 Pa.Cmwlth. 295, 409 A.2d 525 (1980).

These cases clearly illustrate that appellants must first seek relief from the Commissioner himself, who is empowered not only to disallow unfair, discriminatory rates, but also to grant the relief appropriate to the extent of the specific grievance. Only then will the Court of Common Pleas be free to accept jurisdiction of the matter. Nagle v. American Casualty Co., supra 317 Pa.Super. at 170, 463 A.2d at 1139.

For the foregoing reasons, we affirm.

      . Act of June 11, 1947, P.L. 538, § 3(d), 40 P.S. § 1183(d) (1971).

      . The Fourteenth Amendment states:
      "No State shall____deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitutional Amendment XIV.
      The E.R.A. provides:
      "Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” Pennsylvania Constitutional Art. 1, § 28.