text:
    479 A.2d 548
    Charles S. MORROW, individually and on behalf of all others similarly situated, Appellant, v. The BELL TELEPHONE COMPANY OF PENNSYLVANIA. Charles S. MORROW, Appellant, v. The BELL TELEPHONE COMPANY OF PENNSYLVANIA, a corporation.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1983.
    Filed June 22, 1984.

      Mark B. Aronson, Pittsburgh, for appellant.
    J. Tomlinson Fort, Pittsburgh, for appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

Charles S. Morrow filed two civil actions against The Bell Telephone Company of Pennsylvania (hereinafter “Bell”). The complaint in one action was in equity and sought class action certification; the complaint in the other action claimed individual damages for tortious and/or contractual wrongs allegedly committed upon Morrow by Bell. Bell filed preliminary objections to both complaints. In the equity action, the court concluded that subject matter jurisdiction was vested exclusively in the Pennsylvania Public Utility Commission. Therefore, it dismissed the action. A similar conclusion was reached in the other action with respect to some but not all causes of action alleged. Morrow appealed, and both appeals were consolidated for argument in this Court. We affirm the order entered in the first action but reverse the second.

Appellant’s action in equity sought to challenge Bell practices relating to tolls charged for calls made to Bell’s offices during non-business hours and to security deposits required by Bell before it would resume telephone service previously suspended. The action requested damages and injunctive relief on behalf of appellant and all subscribers to telephone service assigned the “364” exchange within the “412” area code.

“It is well-settled law that initial jurisdiction over matters involving the reasonableness, adequacy or sufficiency of a public utility’s service, facilities or rates is vested in the PUC and not in the courts.” DeFrancesco v. Western Pennsylvania Water Co., 291 Pa.Super. 152, 156, 435 A.2d 614, 616 (1981), vacated and remanded on other grounds, 499 Pa. 374, 453 A.2d 595 (1982). See also: Bell Telephone Co. v. Uni-Lite, Inc., 294 Pa.Super. 89, 91, 439 A.2d 763, 765 (1982); Allport Water Authority v. Winburne Water Co., 258 Pa.Super. 555, 559, 393 A.2d 673, 675 (1978); Byer v. Peoples Natural Gas Co., 251 Pa.Super. 75, 80, 380 A.2d 383, 386 (1977); Bell Telephone Co. v. Sanner, 248 Pa.Super. 273, 276-277, 375 A.2d 93, 95 (1977). “Matters relating to the tariff, the necessity of equipment, deposits and the use of various types of services are peculiarly within the expertise of the Public Utility Commission and, as such, are outside the original jurisdiction of the courts.” Bell Telephone Co. v. Uni-Lite, Inc., supra, 294 Pa.Super. at 92, 439 A.2d at 765. “When a utility’s failure to maintain reasonable and adequate service is alleged, regardless of the form of the pleading in which the allegations are couched, it is for the PUC initially to determine whether the service provided by the utility has fallen short of the statutory standard required of it.” DiSanto v. Dauphin Consolidated Water Supply Co., 291 Pa.Super. 440, 445, 436 A.2d 197, 199 (1981), quoting Bell Telephone Co. v. Sanner, supra 248 Pa.Super. at 277, 375 A.2d at 95. See generally: Public Utility Code, 66 Pa.C.S. § 101 et seq. It is equally clear that “[t]he courts retain jurisdiction of a suit for damages based on negligence or breach of contract wherein a utility’s performance of its legally imposed and contractually adopted obligations are examined and applied to a given set of facts.” Litman v. Peoples Natural Gas Co., 303 Pa.Super. 345, 351, 449 A.2d 720, 723 (1982), quoting Behrend v. Bell Telephone Co., 242 Pa.Super. 47, 59, 363 A.2d 1152, 1158 (1976), vacated and remanded on other grounds, 473 Pa. 320, 374 A.2d 536 (1977). “[O]nly where the available administrative remedies are adequate with respect to the alleged injury sustained and the relief requested” should exhaustion of administrative remedies be required before seeking damages in court. Feingold v. Bell of Pennsylvania, All Pa. 1, 10, 383 A.2d 791, 795-796 (1977).

Appellant’s equity action was a challenge to appellee’s rates and to its service practices. Rates and practices regarding deposits are peculiarly and exclusively within the jurisdiction and expertise of the Public Utility Commission. Therefore, they must be addressed by that body. Although appellant’s complaint contains averments of breach of contract, these averments are but a cover disguising the real thrust of his complaint, which is to challenge the adequacy and propriety of Bell’s rates and service practices. See and compare: Byer v. Peoples Natural Gas Co., supra 251 Pa.Super. at 81, 380 A.2d at 386.

If Bell engaged in any illegal practices, the Public Utility Commission has the power and authority to order such practices terminated and discontinued. 66 Pa.C.S. § 501. The Public Utility Commission also has the authority to order Bell to make refunds of excessive charges, if any, which may have been levied against Bell’s customers. 66 Pa.C.S. § 1312. Because the administrative remedies are adequate to remedy any wrong which appellant may have sustained, “the case is exclusively within the PUC’s jurisdiction and no recourse to the courts, outside of the normal appellate process, is warranted.” DiSanto v. Dauphin Consolidated Water Supply Co., supra 291 Pa.Super. at 451, 436 A.2d at 202.

We are sympathetic with the difficult task faced by the trial judge when he was required to analyze the chaotic state of appellant’s pleadings in the second action. In his complaint, appellant stated causes of action in the same count in which he alleged that Bell had improperly diverted telephone calls placed to his business telephone and had improperly suspended his residential telephone service for non-payment of bills. He also attempted to incorporate by reference a cause of action stated in a complaint which he had filed in a separate action. Subsequently, he filed an “amendment” to his complaint by which he attempted to add a fourth cause of action. In this manner, appellant attempted to include three separate complaints, containing at least four causes of action, in one and the same action. As counsel for appellee has observed, it was difficult to sort out the causes of action and issues which appellant wished to litigate.

In response to Bell’s preliminary objections, the trial court initially entered an order which placed appellant’s action in abeyance until the issues which the court was able to discern from the pleadings had been submitted to and decided by the Pennsylvania Public Utility Commission. Subsequently, the court amended its order and dismissed those claims relating to appellee’s “demanding the payment of bills, suspending service for failure to pay bills and requiring the making of a deposit of monies” because they were within the exclusive jurisdiction of the Public Utility Commission. Our review of appellant’s pleadings, conducted with the same difficulty experienced by the trial court, persuades us that the order must be reversed.

Appellant’s initial complaint contained averments of a dispute between the parties regarding monies due for Morrow’s residential telephone service and Bell’s alleged diversion of telephone calls by telling Morrow’s business callers that his assigned telephone number was not in service. In a prior complaint, which appellant attempted to incorporate by reference in this action, appellant had demanded compensatory and punitive damages because of Bell’s alleged failure to list appellant’s telephone number in the directory published by appellee. Finally, in an amendment to his complaint, appellant claimed additional compensatory and punitive damages for mental anguish caused by appellee’s threat to disconnect appellant’s telephone service because of a debt which Bell sought to collect but which appellant said he did not owe.

Appellant’s averments stated at least three, possibly four, causes of action. An order dismissing one or more of these separate causes of action, therefore, was appealable. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983).

These causes of action, it seems clear, have been asserted to recover damages for Bell’s alleged breaches of legal or contractual duties owed to appellant. An action for such damages belongs in the courts. Nagy v. Bell Telephone Co., 292 Pa.Super. 24, 29, 436 A.2d 701, 704 (1981). The issues inherent in these alleged causes of action are not peculiarly within the area of expertise of the Public Utility Commission. They can be decided as readily, and perhaps more appropriately, by a court or jury. Thus, there was no need for the court to abdicate its jurisdiction in favor of the Public Utility Commission. Moreover, in this case it is unnecessary and would be wasteful to adopt a bifurcated procedure. See: DeFrancesco v. Western Pennsylvania Water Co., supra 291 Pa.Super. at 378, 453 A.2d at 597; Elkin v. Bell Telephone Co., 491 Pa. 123, 134-135, 420 A.2d 371, 377 (1980).

The order of the trial court entered at Civil Action GD 82-00283 is affirmed. The order entered at Civil Action GD 82-00284 is reversed, and the action is remanded for further proceedings. Jurisdiction is not retained.

      . During non-business hours, incoming calls were received and responded to by an answering machine, which advised the caller that Bell’s offices were closed. Such calls were deemed to be completed calls, and coins deposited at pay booths were not refunded.

      . Appellant’s prayer for relief requested an order providing the following:
      a. Certification of this civil action as a class action.
      b. Directing and requiring Defendant to cease and desist from its practice of using a telephone answering device to answer incoming telephone calls to its office when the office is closed, whereby Defendant, by the use of its telephone answering device, is unable to answer the individual inquiries of the callers but by which scheme Defendant has been able to charge its callers tolls.
      c. Directing and requiring Defendant to cease and desist from its practice of coercing from subscribers whose telephone service has been suspended sums of money not due and owing to Defendant prior to restoration of said service.

        d. Directing and requiring Defendant to cease and desist in the future its practice of requiring subscribers for telephone service, which service has been suspended, to place on deposit sums of money not owing Defendant before restoring service.
      e. Award damages to each prospective class member and to each member of each other proposed sub classes.
      f. Award general damages.
      g. Enter an order finding the Tariff as amended, filed by Defendant with the Pennsylvania Public Utility Commission, to be illegal, contrary to the Constitution of the Commonwealth of Pennsylvania, and contrary to law.
      h. Such other and further relief as may be fair and proper under the circumstances.

      . The Public Utility Code, 66 Pa.C.S. § 102, defines rates and services very broadly:
      “Rate.” Every individual, or joint fare, toll, charge, rental, or other compensation whatsoever of any public utility, or contract carrier by motor vehicle, made, demanded, or received for any service within this part, offered, rendered, or furnished by such public utility, or contract carrier by motor vehicle, whether in currency, legal tender, or evidence thereof, in kind, in services or in any other medium or manner whatsoever, and whether received directly or indirectly, and any rules, regulations, practices, classifications or contracts affecting any such compensation, charge, fare, toll, or rental.
      “Service.” Used in its broadest and most inclusive sense, includes any and all acts done, rendered, or performed, and any and all things furnished or supplied, and any and all facilities used, furnished, or supplied by public utilities, or contract carriers by motor vehicle, in the performance of their duties under this part to their patrons, employees, other public utilities, and the public, as well as the interchange of facilities between two or more of them, but shall not include any acts done, rendered or performed, or any thing furnished or supplied, or any facility used, furnished or supplied by public utilities or contract carriers by motor vehicle in the transportation of voting machines to and from polling places for or on behalf of any political subdivision of this Commonwealth for use in any primary, general or special election, or in the transportation of any injured, ill or dead person, or in the transportation by towing of wrecked or disabled motor vehicles, or in the transportation of pulpwood or chemical wood from woodlots.

      . We express no opinion as to whether the separate causes of action have properly been joined in the same proceeding.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    479 A.2d 553
    Joanne C. MAPP, Administratrix of the Estate of Naomi Mapp and Deborah Mapp v. Hal DUBE and Kitty Dube, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued March 28, 1984.
    Filed June 22, 1984.
    Reargument Denied Aug. 16, 1984.

      Paul A. Barrett, Scranton, for appellants.
    Martin J. Meyer, Kingston, for appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   McEWEN, Judge:

This case arose after an apartment building owned by the appellants was destroyed by fire resulting in the death of two women who were tenants in the building. Appellee instituted this action on behalf of the estates of the dead women and alleged that appellants were negligent in their failure to provide adequate means of escape from the building. After the jury returned a verdict in favor of both estates and the trial judge denied the appellants’ Motions for a New Trial and for Judgment N.O.V., this appeal was commenced. Appellants present the following issues for our review:

(1) whether the trial court erred when it precluded appellants’ expert witness from testifying as to the utility of additional means of emergency egress from the apartment building owned by appellants.
(2) whether the trial court erred when it precluded appellant from cross-examining appellee’s expert witness concerning the institution where one of the decedents obtained her Graduate Equivalency Diploma.
(3) whether the trial court was in error when it precluded evidence concerning the incendiary nature of the instant fire.
(4) whether the trial court erred when it permitted appel-lee’s expert to testify as to employment opportunities for switchboard operators in northeastern Pennsylvania.
(5) whether the trial court erred when it permitted a tenant of the destroyed building to testify that he heard women screaming inside the burning building.
(6) whether the trial court erred when it excluded from evidence a letter from a building inspector concerning the premises here in question.
(7) whether the trial court was in error when it commented to the jury regarding the prejudicial nature of certain photographs.

The record demonstrates the painstaking effort of the distinguished President Judge Edwin M. Kosik to weigh carefully the difficult issues presented so as to insure a fair trial of this serious and complex case. While we reject as meritless, with, but one exception, the assertions of appellant upon each of these issues, we are constrained to order a new trial by reason of our holding upon that one issue.

Appellants first contend that the trial court erred prejudicially when it prevented their expert witness from testifying as to whether any further means of emergency egress would have aided the decedents under the circumstances. We note initially:

Unless there is a substantial reason therefor, a new trial should not be granted in a negligence case... In an appeal from a jury trial, where the moving party alleges reversible error he must show not only the existence of the error, but also that the jury was misled by this error to his detriment... It is only when improperly admitted evidence may have affected a verdict that a new trial will be the correct remedy, (citations omitted).

Warren v. Mosites Construction Co., 253 Pa.Super. 395, 403, 385 A.2d 397, 401 (1978). See also Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789 (1965); Furey v. Thomas Jefferson University Hospital, 325 Pa.Super. 212, 219-220, 472 A.2d 1083, 1087 (1984). The focus of our inquiry is, of course, the existence of prejudicial error, namely, error that may have affected the verdict of the jury and, therefore, whether the evidentiary error is one of admission or, as here, one of omission, is of no consequence.

The record reveals the following trial dialogue between counsel for appellee and a fire safety expert presented by appellee:

Q. Mr. Dove, the fact that there was, in your opinion, no approved means of egress from the front third floor apartment other than the staircase, is that correct?
A. That’s correct.
Q. Can you — whether or not that circumstance in and of itself created a situation that exposed the occupants of the third floor front apartment to an unreasonable risk of harm or hazard in the event of a fire?
* * * * * *
THE WITNESS: I have an opinion.
* sfc * :Jc ¡{s *
Q. Would you state it, please.
A. That it created a hazard to the occupants of the third floor front apartment.
Q. And would you explain why.
* * * * * *
A. In a multiple occupancy dwelling, in any dwelling, but particularly a multiple occupancy dwelling, one must anticipate — and that’s the purpose of preventive measures, particularly fire preventive measures — that a fire may occur. And should that fire occur particularly in the stairwell or common hallways of a multiple occupancy dwelling, that a second independent safe means of egress must be provided so that those people living in that building can find refuge by way of that second means of egress. With the only means of egress for the third floor front being the open stairwell, in my opinion, created a hazard.
Q. What, if anything, sir, could the owner of this building have done, or what devices, in your opinion could have been provided to the occupants of that particular apartment that would have alleviated the problem that you described?
$ 5}S }|S S]C !(!
A. There are a number of apparatus that could and should be used and are used in multiple occupancy dwellings. They would be smoke detectors, fire alarm systems, independent emergency lighting, metal or masonry or wood, as far as that is concerned, fire escapes affixed to the exterior of the building so that someone could get out of their window or out of their apartment and onto that ladder and make their way to safety. There are also apparatus which are recommended and are used extensively and they are known as collapsible ladders, generally of metal construction. They are affixed to the underside of a window in a specific apartment. In the event of an emergency, the occupant merely has to raise the window, drop the ladder out the window. It unfolds and they can then make their way to safety. They would not be subjected to making their way into a hallway where they may be trapped by the heat and fire, (emphasis added).

Thus did appellee’s expert opine that the probability of survival of the decedents would have been considerably enhanced had appellants provided alternate methods of egress for the decedents. The court did not, however, permit appellants to rebut this testimony since the trial judge refused to allow an expert witness of appellants, John Connell, to testify that such equipment would not have availed the decedents under the circumstances of the instant fire. Appellants, therefore, were unable to refute highly damaging testimony upon the crucial issue of the trial, namely, the causation element of negligence. We believe that this ruling composes reversible error since it was to the detriment of appellants and, as well, may have affected the verdict.

Nor are we persuaded to the contrary by the contention of appellee that this testimony was correctly excluded since it did not fall within the fair scope of the pretrial summary of appellants’ expert testimony provided by appellee during discovery. Pennsylvania Rule of Civil Procedure 4003.5(c) states:

Rule 4003.5. Discovery of Expert Testimony. Trial Preparation Material
* * * * * *
(c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.

The answer of appellants to the pertinent interrogatory propounded by appellee described the anticipated testimony of their expert:

John Connell will testify concerning the effect of the incendiary arson fire, the force of the fire, its effect on oxygen and surroundings and the hazards resulting from it including the difficulty in preventing injuries and death to the plaintiff herein by use of alarms, etc. (emphasis supplied).

We believe that the offered testimony of appellants’ expert regarding the utility of additional means of emergency egress from the premises would not have been inconsistent with nor beyond the fair scope of the foregoing answer to appellee’s interrogatory. We are, therefore, constrained to order a new trial.

While our holding that a new trial is required effectively resolves this appeal, we, nonetheless, proceed to an expression of view upon the other issues raised by appellants so as to serve the court and counsel in the likely event that these questions again become issues in the retrial.

Appellants also argue that the trial court erred when it precluded cross-examination by appellant of appellee’s expert vocational consultant, as to the institution where one of the decedents, Naomi Mapp, obtained her Graduate Equivalency Diploma. A trial court, however, may “properly exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury.” Daset Mining Corporation v. Industrial Fuels Corporation, 326 Pa.Super. 14, 22, 473 A.2d 584, 588 (1984). The Graduate Equivalency Diploma in question was awarded to one of the decedents during her incarceration at a state correctional institute. The trial judge, therefore, was required to balance the probative value of this evidence as it related to the future value of the degree with the unfair prejudice which would have resulted had the jury learned of this decedent’s prior criminal activity. We cannot fault the conclusion of the court that the prejudicial effect of such evidence far exceeded any probative value.

Another error asserted is the purported exclusion of evidence concerning the undisputed incendiary nature of the fire. The record discloses, however, that the origin of the fire was made clear to the jury by the trial judge at the very outset of the trial:

THE COURT: [to the jury] We might save a little time because in this side bar conference, it was determined that both counsel will agree that the fire in this case was of an incendiary nature and that the accelerant or the cause of the fire was gasoline, and it will eliminate the necessity of procuring any opinion from this witness.

The learned trial judge did not err when he excluded additional evidence of this undisputed fact.

We next consider the contention that the trial court was in error when it permitted appellee’s vocational expert to testify as to employment opportunities for switchboard operators in northeastern Pennsylvania. We note, however, that the trial judge has broad discretion with regard to the admission of expert testimony. Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 433 A.2d 40 (1981). Appellees’ expert testified that, based on his personal knowledge, opportunities for employment as a switchboard operator “commonly” occurred in northeastern Pennsylvania between 1976 and the time of trial. Although such testimony may not be admitted into evidence if based upon conjecture, Hussey v. May Department Stores, Inc., 238 Pa.Super. 431, 357 A.2d 635 (1976), here, the witness, a “vocational consultant”, specifically stated that his testimony was based upon his own personal knowledge. We, therefore, find no abuse of discretion on the part of the trial court in ruling such testimony admissible.

Appellant also asserts that the trial court was in error when it permitted a tenant of the destroyed building to testify as a rebuttal witness that he heard women screaming from inside the burning building. The admission or rejection of rebuttal evidence is within the sound discretion of the trial judge. Flowers v. Green, 420 Pa. 481, 218 A.2d 219 (1966); McNair v. Weikers, 300 Pa.Super. 379, 446 A.2d 905 (1982); Pittsburgh-Des Moines Steel Co. v. McLaughlin, 77 Pa.Cmwlth. 565, 466 A.2d 1092 (1983). The record reveals the testimony of appellants’ fire expert that, in all probability, the conditions inside the building at the time of the fire resulted in the instantaneous deaths of the women. Rebuttal testimony as to the possibility that the women might not have died immediately and, indeed, might have suffered prior to their demise, was certainly relevant to the issue of damages. We, therefore, can discern no abuse of discretion on the part of the trial court.

Appellant further argues that the trial court was in error when it excluded from evidence a letter written by a building inspector concerning the building wherein the decedents perished. The Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108, states:

§ 6108. Business records
♦ >}! S}C S}S ‡
(b) General Rule. — A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.
* * * * * *

42 Pa.C.S. § 6108(b). The proposed letter did not, however, achieve the status of competent evidence since appellant did not comply with the conditions precedent that testimony be presented as to (1) the mode of preparation of the letter and (2) the writer’s sources of information. Therefore, the ruling of the trial judge was proper.

The final assertion of appellant arises from the effort of appellee to have certain photographs of the charred bodies admitted into evidence. While the court sustained the timely objection of counsel for appellant that the photographs were inflammatory, appellant urges that the extended explanation of the ruling delivered to the jury by the court was in itself prejudicial. We need not discuss, however, whether the ruling might have been better expressed in general, terse fashion, nor address the question of whether the explanation effected such prejudice as to compose reversible error, Rather, since the record does not reflect any expression of objection at the time the explanation was offered by the court, the issue must be considered waived. Whistler Sportswear, Inc., supra.

Judgment vacated. Case remanded for a new trial. Jurisdiction relinquished.

      . We note that, in addition to the announcement of this stipulation by the court, evidence concerning the incendiary nature of the fire was presented twice during the trial including this testimony by appellants’ fire expert:
      A. Well, during the course of going through the fire building and the debris, we uncovered a one-gallon plastic Texaco container that had at one time apparently contained antifreeze. The point at which this container was found was just inside the main entrance door at the foot of a flight of stairs which led up to the second floor. The debris in that area, down at the floor level, with the assistance of the Fire Department we were able to dig down to what had been the floor. We detected relatively strong odor of gasoline as well as having found the Texaco container and concluded that this fire was of incendiary origin and that it had been accelerated by the use of a flammable liquid, notably gasoline.

      . Appellant also contends that he was prevented by the trial judge from arguing that the deaths were caused by the unforeseeable and superseding act of arson. We can find, however, no evidence in the record to support this claim.

      . Nor did the letter indicate to whom the letter was sent.


author: MONTEMURO, Judge:

text:
    479 A.2d 558
    COMMONWEALTH of Pennsylvania, Appellant, v. Felix RODRIGUEZ, Jr. a/k/a Felix Rodriquez, Jr.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1984.
    Filed June 22, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.

      Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Dennis J. Cogan, Philadelphia, for appellee.
    Before CAVANAUGH, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This is a Commonwealth appeal from an order granting appellee’s motion to suppress his inculpatory statement of March 14, 1981. The lower court suppressed the evidence on the grounds that it was the fruit of an illegal arrest. We disagree, and therefore, reverse.

Recently in Commonwealth v. Lapia, 311 Pa.Super. 264, 270, 457 A.2d 877, 880 (1983), our court concluded “that an order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution.” Applying this standard to the instant case, we are satisfied that the lower court’s suppression order is appealable. Appellee is charged with murder, involuntary manslaughter, robbery, theft, possessing an instrument of crime, and criminal conspiracy. The record reveals that the appellee’s statement is the only evidence the Commonwealth has to support the charges against the appellee. Consequently, suppression of this statement would substantially handicap the prosecution.

The scope of review from an order suppressing evidence has recently been defined by this court as follows:

[W]e must determine whether the evidence supports the court’s factual findings and whether the legal conclusions drawn from those findings were legitimate. This determination is made considering only the evidence of the prosecution’s witnesses and so much of the defense evidence as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980). Findings supported by the record and legitimate legal conclusions drawn therefrom will not be disturbed. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977).

Commonwealth v. Williams, 317 Pa.Super. 456, 463-464, 464 A.2d 411, 414 (1983). See also, Commonwealth v. Webb, 491 Pa. 329, 332, 421 A.2d 161, 163 (1980); Commonwealth v. Lapia, supra.

The testimony at the suppression hearing indicated the following: On March 14, 1981, at 9:46 A.M., Detectives Suminski and Lagera located the appellee outside a junk shop at Front and Cumberland Streets. They informed the appellee that they were investigating the murder of a doctor in January. They asked the appellee if he knew of the murder and they asked if he knew Russell Weinberger. When the appellee responded that he knew Weinberger, the officers asked him if he would mind going to the Police Administration Building (PAB) to talk about Weinberger. Appellee readily agreed. Detective Suminski told the appel-lee that he was not under arrest nor was he a suspect and that if he wanted to go to the PAB at some other time, that could be arranged.

The appellee was transported to the PAB in the detectives’ unmarked police car. He sat in the back seat while the two detectives rode in the front. The back door of the car was not capable of being locked from the outside. The appellee was not handcuffed or restrained.

On the way to the PAB, the detectives stopped at three (3) hardware stores to look for an item. Each time, the detectives went into a store together while appellee sat alone in the back seat of the unlocked car. The three men arrived at the PAB at 10:10 A.M. They entered the PAB through a door open to the general public and the appellee entered his name into a “Witness Control Book” as a witness. They proceeded to Room 104 in the PAB and then directly to an interview room in Room 104. The appellee was left alone in the room for about one-half hour before Detective Suminski entered to interview him.

The lower court, after hearing the testimony made findings of fact and conclusions of law as required by Pa.R.Crim.P. 323(i) and submitted an opinion in support of its order granting appellee’s motion to suppress. The court’s findings and conclusion were as follows:

FINDINGS OF FACT
1. On January 15, 1982, Dr. Clarence Langley was found [beaten and strangled] to death in his office at [2520 Kensington Avenue], Philadelphia, Pennsylvania.
2. (a) [On February 9, 1981], as a result of an investigation, Homicide Detective Suminski, in company with Detective Lagera, went to the place where the defendant, Russell Weinberger, was staying; advised him that he was investigating the above crime and asked Weinberger to accompany him to police headquarters. Weinberger was transported in an unmarked police vehicle, was placed in the back thereof without handcuffs, and the rear doors of the vehicle could be opened by the passenger. The detectives were in civilian clothes;
(b) Weinberger was escorted into Homicide Detective Headquarters, first floor, Police Administration Building, and then into a small interrogation room. This room contained no windows, contained a desk and two chairs. There was a door with a small window separating it from the large Administration Room;
(c) Weinberger was given no Fifth Amendment constitutional Miranda warnings. He gave a statement denying any involvement in the above-mentioned crime. Subsequently, he consented to take a polygraph test, which was given. He was released and returned to his residence by the aforesaid detectives.
3. (a) On March 14, 198[1], as a result of information supplied by informants discovered during neighborhood surveys and information derived from Weinberger that Felix Rodriguez “hung with” Weinberger, Det. Suminski, with Det. Lagera, sought and found Felix Rodriguez on the street at Front and Cumberland Streets, Philadelphia. They asked Rodriguez to come to police headquarters to answer questions about the death of Dr. Langley on January 15, 1981. Rodriguez agreed. He was transported, sitting in the rear seat of an unmarked police vehicle, the door of which could be opened by the passenger. He was not handcuffed. The detectives were in civilian clothes;
(b) Inside the Police Administration Building, Rodriguez was taken to Homicide Headquarters on the first floor and placed in a small interrogation room without windows. The door was closed to the main administration area. Defendant was not handcuffed. Rodriguez was advised of his constitutional Fifth Amendment rights and given Miranda warnings, in both Spanish and English, and indicated his understanding and willingness to waive his rights against self-incrimination by signing and/or initialing his answers in his own hand. He was warned prior to making any statement whatsoever. Rodriguez gave a statement involving himself and Wein-berger in the killing of Dr. Langley on January 15, 1981. Det. Suminski, contemporaneously] with Rodriguez’ arrival at Homicide Headquarters, prepared a chronology in which he indicated that Rodriguez had been “apprehended” at Front and Cumberland Streets at 9:46 a.m. on March 14, 1981;
(c) Rodriguez was not subjected to any threats or promises or coercion, psychological or physical. He was alert and responsive during questioning. He made no requests which were denied. He was not under the influence of alcohol or drugs, or suffering from any mental disability at all relevant times;
(d) Rodriguez was arraigned at 3:08 p.m. on March 14, 1981;
(e) [Rodriguez was not told, at any time relevant to this Motion to Suppress, that he was free to leave the Police Headquarters, or the presence of the Homicide Detectives.] ¹
4. (a) On March 17, 198[1], Detectives Suminski and Lagera arrested defendant Weinberger, pursuant to an arrest warrant issued on March 15, 1981, stating probable cause information derived from defendant Rodriguez’ statement;
(b) Weinberger was given constitutional warnings against self-incrimination and knowingly, intelligently and voluntarily waived his rights against self-incrimination. He thereupon gave a statement indicating his involvement in the slaying of Dr. Langley on January 15, 1981, together with that of Felix Rodriguez;
(c) No threats, promises or coercion was exerted in order to induce Weinberger to give a statement. He was alert and responsive at all relevant times. He was not under the influence of drugs or alcohol. He was not suffering from any mental disability which would prevent him from giving a knowing, intelligent and voluntary statement;
(d) Weinberger was arraigned at 10:57 a.m. on March 17, 1981.

(Lower Court Opinion, at 2-5).

CONCLUSIONS OF LAW
1. Defendant Weinberger’s statement of February 9, 1981 was the product of custodial interrogation and was given without required Miranda warnings. Weinberger was not under arrest at the time.
1. The bracketed finding was added on August 3, 1982, over the objection of the Assistant District Attorney. See N.T. August 3, 1982, pp. 6-3 to 6-13.
2. (a) The police did not have probable cause to arrest defendant Rodriguez on March 14, 1981;
(b) Defendant Rodriguez was arrested on that date and subjected to custodial interrogation;
(c) The statement given by him on that date was the product of said custodial interrogation, and the taint thereof was not purged by any factors independent of that unlawful arrest.
3. (a) The statement of defendant Weinberger on March 17, 1981, was made pursuant to a valid arrest warrant issued upon probable cause, and was given pursuant to a knowing, intelligent and voluntary waiver of constitutional rights against self-incrimination and was given knowingly, intelligently and voluntarily.

(Lower Court Opinion, at 8-9).

The appellee claims that he was placed under arrest at 9:46 A.M. and that there was not probable cause to arrest him until after he confessed to Detective Suminski at 10:49 A.M. that day. Therefore, the appellee claims the lower court properly suppressed his inculpatory statements as the product of an illegal arrest.

The Commonwealth concedes that it had no probable cause to arrest the appellee until after he confessed. The Commonwealth challenges only the propriety of the legal determination as to the moment of the appellee’s arrest. They argue that the facts — that appellee went to the Police Administration Building voluntarily, was not handcuffed or restrained, entered the building through a door open to the public, was logged in as a witness — found and credited by the suppression judge, mandate the legal conclusion that the appellee was not under arrest at the time he confessed.'

In Commonwealth v. Lovette, 498 Pa. 665, 671, 450 A.2d 975, 978 (1982) cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983), our supreme court stated:

We have defined an arrest as any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). See also, Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980) citing Steding v. Commonwealth, 480 Pa. 485, 391 A.2d 989 (1978) and Commonwealth v. Brown, 230 Pa.Super. 214, 326 A.2d 906 (1974); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), certiorari denied Silo v. Pennsylvania, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94, rehearing denied 440 U.S. 969, 99 S.Ct. 1522, 59 L.Ed.2d 785 (1978); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974).

In this case the suppression judge concluded from the findings of fact as set forth supra, that the appellee was under arrest at the time he confessed.

The lower court relies upon Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978) in support of its determination. The facts in Holmes were as follows: Holmes along with a female friend went voluntarily to the Police Administration Building (PAB) in a police car, in order to assist in an investigation of a murder. Upon arriving at the PAB (shortly before 1:52 A.M.), he and his companion sat on a bench near the front door. A detective took an exculpatory statement from Holmes and at the conclusion of the interview told Holmes to return to the bench where he had been sitting. Thereafter, the detective received information implicating Holmes in the murder. Because of this information, the detective told Holmes, sometime after 3:00 A.M., to sit in an interrogation room and someone would be in to speak to him. The detective then escorted Holmes to the room and locked the door. The detective later re-entered the interrogation room to tell Holmes to stop banging on the door and someone would be in to speak with him. At 6:30 A.M. another detective entered the interrogation room and “formally arrested” Holmes for murder and advised him of his constitutional rights. While rejecting appellant’s argument that he was under arrest at 1:52 A.M. when he was told to be seated on the bench even though the detective testified that appellant was not free to leave, the lower court concluded on the above facts that Holmes was under arrest from the time when the detective escorted him to the interrogation room and locked the door, because these actions clearly showed an intent to place a person in custody and subject him to the control and will of an officer.

Holmes is clearly distinguishable from the instant case. In Holmes there was a marked change in status from the point when Holmes was sitting on a bench in the PAB with a companion to the point when Holmes was “escorted” by a detective to an interrogation room and locked in there alone from sometime after 3:00 A.M. until 6:30 A.M. Furthermore, in Holmes the detectives refused to let Holmes out of the locked interrogation room even after Holmes started banging on the door.

Here, the marked change in appellee’s status occurred after he confessed. Appellee encountered the police at 9:46 A.M. and voluntarily accompanied them to the PAB. He arrived in an unmarked police car and was not handcuffed or restrained at any time. Appellee was left alone in a small interrogation room from the time he arrived at the PAB at 10:10 A.M. until the time when Detective Suminski entered to interview him at 10:45 A.M. There is absolutely no evidence that appellee was locked in the interrogation room or that he ever expressed a desire to leave the room or was ever refused any request. Furthermore, at the time Detective Suminski entered the interrogation room, appellee had been in the company of the police, whom he voluntarily accompanied for barely one (1) hour.

The suppression court found that Commonwealth v. Horner, 497 Pa. 565, 442 A.2d 682 (1982) and Commonwealth v. Haggerty, 495 Pa. 612, 435 A.2d 174 (1981) were inapposite to the present case [N.T. 5-142]; however, in our view they are more on point than Commonwealth v. Holmes, supra, and more persuasive.

In Horner, the relevant facts were as follows: At 10:55 P.M. the police told Horner and his companions that “they were being taken to homicide as witnesses.” Thereafter Horner and his companions were transported in a single police van to the PAB. None of them were frisked or handcuffed. Horner entered the Homicide Unit through the visitor’s door, signed in as a witness, and was allowed to sit together with his companions in the witness waiting area. Horner’s interview began at 12:35 A.M. at a desk in an open area of the Homicide Unit. The interview was completed at 1:50 A.M. Sometime thereafter between 3:30 A.M. and 4:00 A.M., when the statements of all the witnesses were reviewed the decision to arrest the appellant was made.

The court in Horner concluded on the above facts that Horner was “neither in custody nor the focus of any investigation at the time he gave the police his statement; that appellant [Horner] was not under custodial interrogation at the time he made his statement; that Miranda warnings were not necessary; and that appellant’s [Horner’s] statement was admissible in evidence at trial.” Commonwealth v. Horner, supra, 497 Pa. at 575, 442 A.2d at 687.

Although Horner is in certain respects factually distinguishable from the instant case, it provides a strong argument for concluding that appellee was not under arrest at the time he confessed. In Horner, the police “told” Horner that he was going to come with them as a witness, while in the instant case appellee was asked to accompany the officers. In Horner, even though Horner was a “witness”, he was transported to the PAB in the back of a locked police van, while appellee was transported in an unmarked police car. In both Horner and the instant case no restraints or handcuffs were used. In both, entrance to the PAB was made through the visitors’ door and in both, the parties signed the witness log. Since the court in Horner concluded that there was not even a custodial interrogation requiring Miranda warnings, we would be hard pressed under the facts of the instant case to conclude that appellee was under arrest at the time he confessed.

In Commonwealth v. Haggerty, supra, two plainclothes policemen went to Haggerty’s house at 11:00 A.M. Haggerty’s wife woke him and the police asked if he would come to the State Police barracks to discuss an earlier statement he gave concerning a suspected arson. Haggerty agreed. Upon his arrival at the barracks, he waived his Miranda rights and was questioned for ninety (90) minutes but denied any involvement. He then agreed to take a polygraph test. While waiting for the polygraph examiner Haggerty and a police officer remained in the interrogation room. The polygraph test began at 2:30 P.M. About one (1) hour later, the polygraph examiner informed the original interviewing officers that Haggerty admitted his involvement in the fire.

Haggerty argued on appeal that he was arrested at 11:00 A.M. The Commonwealth argued that Haggerty was not arrested until immediately after his initial admission of involvement sometime between 2:30 P.M. and 3:00 P.M. The court in Haggerty concluded on the above facts that there was, “nothing which would indicate that the officers attempted to subject appellee to their will and control before appellee admitted involvement in the instant crime. It is thus our view that on this record appellee was not arrested until sometime between 2:10 p.m. and 3:30 p.m.” Commonwealth v. Haggerty, supra, 495 Pa. at 615, 435 A.2d at 175.

It is evident that Haggerty is strikingly similar with the instant case and we find it controlling. As was the case in Haggerty, appellee was asked to come back with the police to be questioned. Similarly in both Haggerty and the instant case plainclothes police officers provided the transportation, and no restraints or handcuffs were used. In both cases Miranda warnings were given immediately before questioning. In both cases questioning was done in an interrogation room and not in an open area.

Under all of the circumstances as found and credited by the suppression court it is clear that taking appellee to homicide headquarters, placing him in a small interrogation room, without windows and with the door closed for thirty-five (35) minutes and giving him Miranda warnings, did not constitute an arrest as that term has been defined under our cases.

We are convinced that the principal reason for the suppression court’s finding that appellee was arrested at 9:46 A.M. was the chronology prepared by Detective Suminski. This chronology prepared contemporaneously with appel-lee’s arrival at homicide headquarters indicated that appel-lee was “apprehended” at Front and Cumberland Streets at 9:46 A.M. The suppression court, in our view, equated the word “apprehended” with “arrestéd.”

Detective Suminski testified as to what he meant by his use of the word “apprehended.” He said: “Well, I usually use it when somebody comes with me who [sic] I go out looking for whether they’re a suspect or whether they’re a defendant.” (N.T., July 21, 1982, p. 232). Obviously the suppression court chose, as it had the right to do, to disbelieve the detective’s explanation.

However, the test is not what the police intended but rather the reasonable impression conveyed to the person subjected to the seizure. Commonwealth v. Holmes, supra, 482 Pa. at 109-110, 393 A.2d at 403. Even assuming that Detective Suminski meant “arrested” when he used the word “apprehended”, that would be of no moment absent an act indicating an intention to take the appellee into custody. Not only was appellee completely unaware of the use of the word “apprehended” but more importantly we find no police conduct here which would cause appellee to believe that he was being taken into custody, or that he was not free to leave at any time before he confessed. Thus, we find that the suppression court erred in its reliance upon the chronology of events to find that appellee was arrested at 9:46 A.M. at Front and Cumberland Streets.

For all of the above reasons we reverse the order of the suppression court and remand the case for trial. This court does not retain jurisdiction.

      . 18 Pa.C.S.A. § 2502.

      . Id. § 2504.

      . Id. § 3701.

      . Id. § 3925.

      . Id. § 907.

      . Id. § 903.

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

      . In the instant case the suppression court expressly found that appellee was given Miranda warnings prior to making any statement whatsoever. Lower Court opinion at 3-4. The Commonwealth in its brief at 16 argues that the suppression court’s finding is unsupported by the record. Viewed in light of Haggerty, supra, it makes no difference under the facts of this case whether or not appellee was given Miranda warnings prior to making any statement whatsoever, since the mere giving of Miranda does not signal arrest. See also Commonwealth v. Romeri, 314 Pa.Super. 279, 460 A.2d 1139 (1983).


author: JOHNSON, Judge:

text:
    479 A.2d 565
    RAD SERVICES, INC., and Big Bear Oil Co., Inc. v. AMERICAN REFINING GROUP, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued April 10, 1984.
    Filed June 22, 1984.
    Reargument Denied Aug. 31, 1984.
    Petition for Allowance of Appeal Denied Jan. 17, 1985.

      Peter F. Marvin, Philadelphia, for appellant.
    Thomas M. Mulroy, Pittsburgh, for appellees.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

This is an appeal by appellant, American Refining Group, Inc., from the judgment entered on May 27, 1982. We affirm.

Appellees, RAD Services, Inc. and Big Bear Oil Co., Inc., operated retail gasoline stations, and they purchased their product from the appellant, who is a wholesale distributor of petroleum products. The appellees began to experience substantial unexplained inventory shortages, and each undertook numerous steps to ascertain their cause. The time period in which the appellees received an insufficient amount of gas was from September 1977 to October 1978. After investigating a number of possibilities, the appellees determined these shortages were due to a defect in the metering device employed by the appellant at its storage terminal in measuring the amount of gas being loaded into the appellees’ trucks.

Consequently, the appellees initiated an assumpsit action against appellant to be reimbursed for the amount of gasoline they paid for but never received. A jury trial was held, and the jury returned a verdict on December 7, 1981 in the appellees’ favor. The trial judge denied appellant’s motions for a new trial and judgment n.o.v. It is from this denial that appellant presently appeals.

Two contentions are presented for our consideration. First, appellant argues the trial court improperly refused its motion for a judgment n.o.v. because, as a matter of law, the appellees had not notified the appellant within a reasonable time of the gasoline terminal metering defect. Therefore, appellant argues the appellees should have been barred from any recovery.

Our scope of review of the lower court’s ruling on a motion for judgment n.o.v. was comprehensively enunciated in Eldridge v. Melcher, 226 Pa.Super. 381, 385-86, 313 A.2d 750, 753 (1973):

A judgment n.o.v. is the directing of a verdict in favor of the losing party, despite a verdict to the contrary. It may only be entered in a clear case where the evidence is insufficient to sustain a verdict against him____ Judgment n.o.v. is inappropriate if the evidence on a material point presented an issue of fact for decision by the jury. This method of attacking the verdict may never be utilized so as to invade the province of the jury, especially where that determination is based partly on questions of conflicting testimony and credibility of witnesses..... Where such questions were determined by the trier of fact, and if there is reasonable support for the verdict which was rendered, a judgment n.o.v. will not be granted, as the weight of the evidence is a jury matter____ and may only be raised by a motion for a new trial if the verdict is contrary to the weight of the evidence. As to whether there is reasonable support in the evidence for the verdict, it should be noted that the evidence may be found sufficient, though it be meager or uncorroborated, (citations omitted)

Accord: Hopkins v. Stepler, 315 Pa.Super. 372, 461 A.2d 1327 (1983); Shuman Estate v. Weber, 276 Pa.Super. 209, 419 A.2d 169 (1980). Thus, if reasonable support for the verdict is present, judgment n.o.v. should not be granted. In discerning whether the verdict is reasonably supported, the evidence must be considered in a light most favorable to the verdict winner. All conflicts must be resolved in favor of the verdict winner; and he must be given the benefit of every reasonable inference arising from the evidence. Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983).

The commercial transaction between the litigants is governed by 13 Pa.C.S. § 2607(c)(1) which states:

(c) Notice of Breach. — Where a tender has been accepted:
(1) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy;

Appellant’s position is that appellees should have discovered their gas shortage due to defects in appellant’s terminal meter earlier, and appellees’ failure to do so rendered their notice of the breach unreasonable, as a matter of law. We disagree. The mere fact that it took a number of months for the appellees to discover the gas shortage and to determine it was the result of appellant’s faulty terminal meter does not make appellees’ notice unreasonable as a matter of law.

The most vexatious and frequently litigated [U.C.C.] 2-607(3)(a) question is: what constitutes a “reasonable time” within which the buyer “should have discovered any breach” and have notified the seller? On reading the cases one is tempted to say that a reasonable time in this context has as many meanings as there are fact patterns in the cases.

White & Summers, Uniform Commercial Code § 11-10 (2nd ed. 1980).

A reasonable time is defined by 13 Pa.C.S. § 1204(b) as: “What is a reasonable time for taking any action depends on the nature, purpose, and circumstances of such action.” Moreover, the framework to properly consider the circumstances under which appellees acted was established at trial through ample and uncontradicted testimony outlining ap-pellees’ normal business practice. The testimony at trial concerning appellees’ method of buying wholesale gasoline and inventorying their supply presents for the jury a factual question as to whether the appellees discovered the problem within a reasonable time.

Whether a buyer discovers a breach and gives notice of it within a reasonable time is normally a jury question. Q. Vandenberg & Sons, N.W. v. Siter, 204 Pa.Super. 392, 204 A.2d 494 (1964); Rowe Intern., Inc. v. J-B Enterprises, Inc., 647 F.2d 830 (8th Cir.1981). Only under the situation where the facts are undisputed and the buyer clearly ought to have known of the alleged defect does the question of reasonableness become one for the court. Necho Coal Company v. Denise Coal Company, 387 Pa. 567, 128 A.2d 771 (1957). Pennslyvania courts have historically recognized that business custom and usage may reasonably defer the discovery of a defect. Crunden Martin Mfg. Co. v. Turner, 274 Pa. 425, 118 A. 365 (1922). Evidence was introduced at trial that the situation for our review was such a case. It was within the jury’s province to evaluate the reasonableness of appellees’ notice. However, its status as a factual question renders meritless appellant’s request for a judgment n.o.v.

Second, appellant argues the jury’s conclusion that the appellant was responsible for the losses claimed by the appellees was based upon insufficient evidence, and, therefore, the trial court’s denial of its motion for a judgment n.o.v. was in error. Our review of the trial record verifies that the appellees introduced evidence documenting that the appellant was responsible for their gasoline shortage. Mindful of our scope of review, we find appellant’s argument unpersuasive. The mere presentation of this evidence is sufficient to defeat appellant’s motion for a judgment n.o.v.

The May 27, 1982 judgment is affirmed.

      . The trial testimony of appellees’ business method on this matter presents a practice that occurred with such regularity that it may properly be considered a usage of trade as defined by 13 Pa.C.S. § 1205(b).


author: POPOVICH, Judge:

text:
    479 A.2d 568
    COMMONWEALTH of Pennsylvania v. Dorothy FINLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 5, 1984.
    Filed June 22, 1984.
    Petition for Allowance of Appeal Granted Jan. 7, 1985.

      Catherine M. Harper, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia denying the Petition for Relief under the Post-Conviction Hearing Act (PCHA), 42 Pa.C.S.A. 9541 et seq., of appellant, Dorothy Finley. On October 17, 1975, after a non-jury trial, appellant was convicted of murder in the second degree, robbery, carrying firearms without a license, possessing instruments of crime, prohibited offensive weapon and criminal conspiracy. Since the convictions involved a homicide, direct appeal was taken to the Pennsylvania Supreme Court, where all the judgments of sentence were affirmed by Per Curiam Opinion at Commonwealth v. Finley, 477 Pa. 211, 383 A.2d 898 (1978). On appeal to the Supreme Court, appellant raised two issues: (1) whether there was sufficient evidence to support the verdicts and (2) whether the search warrant was based on illegally obtained evidence rendering the evidence obtained pursuant thereto inadmissible. The Supreme Court “found no merit in either of these arguments”. Commonwealth v. Finley, supra, 477 Pa. p. 211, 383 A.2d p. 898.

On April 9, 1979, appellant filed a pro se PCHA petition which merely repeated the allegations raised in direct appeal to the Pennsylvania Supreme Court. This PCHA petition was denied without a hearing and without appointment of counsel because “[i]n the instant petition the petitioner again raises the precise issues previously raised on appeal ----” Opinion, Blake, J., at 2. Subsequently, an appeal of the decision of the PCHA court was taken to the Pennsylvania Supreme Court which vacated the lower court order and remanded the case to the lower court with instructions that counsel be appointed for appellant if she were found to be indigent. In compliance with that Order, Michael A. Seid-man, Esquire, of Philadelphia, was appointed counsel for appellant. Mr. Seidman concluded that no arguably meritorious issues existed for appellant in her PCHA petition, whereupon he was instructed by the lower court to adopt the following procedure:

Counsel was instructed that where he had completed a comprehensive review of the entire record and the applicable law, and had interviewed defendant and concluded that the record was devoid of arguably meritorious contentions, counsel should write this court in letter form detailing not only the nature and extent of his review, but also listing each issue Defendant wished to have raised, followed by an explanation why those issues were merit-less. At that point, this Court would conduct its own independent review and, if our conclusions coincided with counsel’s the Petition would be dismissed without a hearing and the Defendant would be apprised of her appellate rights. Opinion Blake, J. at 5.

Counsel adhered to those guidelines and wrote the following letter to the court:

I have reviewed the Notes of Testimony in the above matter and I have met with the defendant to discuss her Post Conviction Hearing Act Petition. I cannot find any issues to raise on her behalf that are of arguable merit. In addition, my client, Mrs. Finley, did not find any issues that she wished to raise other than the issues raised in her pro se petition. One of these issues deals with the sufficiency of the evidence. The Commonwealth’s evidence consisted primarily of eyewitness testimony. The sufficiency of that testimony was a matter of credibility which was decided against the defendant by the waiver Judge. The other issue involved the search warrant which, was finally litigated on direct appeal to our Supreme Court. See [477 Pa. 211], 383 A.2d 898 (1978). Consequently, I respectfully request to be relieved of my appointment in this matter.

Mr. Seidman was thereafter relieved, and the Petition was dismissed. New counsel was appointed to represent appellant in the instant appeal from that order.

In this appeal, appellant claims that she was denied effective assistance of counsel where the PCHA court-appointed counsel, Mr. Seidman, failed to file an amended PCHA petition and brief on behalf of his client and chose instead to outline for the court reasons why a PCHA petition would be meritless. We hold that the procedure followed below resulted in ineffectiveness of counsel. Accordingly, we vacate the order below and remand for present counsel to represent appellant in the filing of an amended PCHA petition.

Pennsylvania law concerning procedures to be followed when a court-appointed attorney sees no basis for an appeal is derived from the seminal case of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) rehrg. denied at 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377. The Court in Anders applied a three-pronged formula, which, if scrupulously applied, will allow court-appointed counsel to withdraw from a case. If the attorney, after a conscientious evaluation of the record, finds his case to be “wholly frivolous”, he may so advise the court and request permission to withdraw. He must, however, accompany his request with a brief referring to anything in the record which will “arguably” support an appeal. A copy of that brief should then be furnished to the indigent within enough time to allow the latter to pursue an appeal, either counselled or pro se. The court, after a full examination of the record, then decides whether the case is wholly frivolous; and, if it so finds, it may grant counsel’s request to withdraw. The procedure outlined above allows for the situation where counsel believes an appeal would be wholly frivolous but concurrently provides safeguards for the right of an indigent to enjoy the same zealous representation available to defendants able to afford private counsel.

Anders was adopted in Pennsylvania in Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), wherein Anders was read as offering two choices to the court-appointed advocate: (1) he may file briefs and argue the case on behalf of his client as an advocate; or (2) he may choose to withdraw his services, in which case he must adhere to the Anders procedure.

Baker involved an appeal to the Supreme Court after relief was denied by our court. The instant case, however, arises from appellant’s initial PCHA petition. The threshold inquiry must be, therefore, whether Anders applies; if we answer affirmatively, only then may we evaluate whether its requirements are met.

Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983) arose as a result of appellant’s filing a second PCHA petition after the time for appeal from the Superior Court’s denial of relief from his first PCHA petition had passed. The Superior Court had affirmed the dismissal, without hearing, of appellant’s second PCHA petition, and the appellant proceeded pro se to the Supreme Court armed, inter alia, with a fresh claim of ineffectiveness, which the Court chose to address. Appellant contended that appointed PCHA counsel was ineffective in failing to amend appellant’s first pro se post-conviction petition and in failing adequately to pursue, as ordered, an appeal to the Supreme Court. The majority prescribed application of Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) in a case where counsel believes appeal is frivolous.

McClendon was a direct appeal where the court held that the requirements of Anders must be met. The Court felt obliged to determine whether the lower court was correct in its assessment of complete frivolity. It was only after it made that determination that the Court inquired as to whether the brief submitted complied with Anders. Under the circumstances, it found that compliance was unnecessary. In affirming, the Court says

“[t]he major thrust of Anders was to assure a careful assessment of any available claims that an indigent might have. That end is achieved by requiring counsel to conduct an exhaustive examination of the record and by also placing the responsibility on the reviewing court to make an independent determination of the merit of the ap-peal____ Once we are satisfied with the accuracy of counsel’s assessment of the appeal as being wholly frivolous, counsel has fully discharged his responsibility.” 495 Pa. 473, 434 A.2d at 1188.

Although the Court in Lohr held that counsel’s actions were outside the requirements of McClendon, in which the court echoes Anders, it, nevertheless, affirmed, stating that

"... the goal pursued by McClendon, review of the merit of the appeal, is fulfilled by the instant review, negating the possibility of prejudice inuring to appellant from the omissions of counsel. Furthermore, notwithstanding counsel’s dereliction, any relief this Court might extend to appellant would be merely duplicitous [sic] of the instant review and, thus, consistent with principles of judicial economy, we decline the opportunity to remand for proceedings consistent with McClendon.” (Emphasis added) 503 Pa. 138-139, 468 A.2d at 1379.

Anders has been applied in similar circumstances, and, therefore, we hold that its application to the instant case is proper. Counsel’s brief does not satisfy the requirements of Anders in that it does not set forth any issues of arguable merit, nor is there evidence that it was provided to appellant within enough time for her to proceed pro se or to obtain new counsel. Notwithstanding these deficiencies, McClendon and Lohr offer us the opportunity to review the merits of the appeal. We decline, however, to follow the procedures utilized in McClendon and Lohr. We take a position which distinguishes this case from Lohr, based in part on the rationale behind the Supreme Court’s remand for appointment of counsel.

The Supreme Court remanded, not because it saw any particular merit to the two contentions at issue, which were identical to those disposed of earlier in appellant’s direct appeal. The Court stated, in remanding appellant’s first PCHA appeal, “[c]ounsel for a PCHA petitioner can more ably explore legal grounds for complaint, investigate underlying facts, articulate claims for relief and promote efficient administration of justice.” Commonwealth v. Finley, 497 Pa. 332, 335, 440 A.2d 1183, 1184 (1981). The Supreme Court wished to afford appellant the opportunity to amass other issues with arguable merit. It is obvious that the issues listed by appellant in her pro se petition were merit-less as they had previously been so described by the Pennsylvania Supreme Court. Moreover, Pa.R.Crim.P. 1504, in affording counsel, means that counsel should act as an advocate in fulfilling his role.

“... it is not enough simply for the PCHA court to appoint counsel. For this settled rule ‘also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by representation.’ ” Commonwealth v. Lowenberg, 493 Pa. 232, 425 A.2d 1100 (1981) quoting from Commonwealth v. Fiero, 462 Pa. 409, 413, 341 A.2d 448, 450 (1975).

Fiero involved an appellant-authored PCHA petition filed after counsel was appointed and prior to which there had been no direct appeal taken. Since counsel had neither amended the petition nor filed a brief, the court held that “[t]hese facts compel the conclusion that the proceeding was in fact uncounselled.” Id., 462 Pa. at 413, 341 A.2d at 450. The court required “meaningful participation by counsel.”

If we were to hold that the requirements of Anders were not met but concomitantly review the merits of the appeal and possible affirm as in McClendon, we would run into a further obstacle. The affirmance which was the outcome of McClendon was based on the “accuracy of counsel’s assessment of the appeal”, including “an exhaustive examination of the record”, Commonwealth v. McClendon, supra, 495 Pa. at 473, 434 A.2d at 1188.

Here, there is no mention of an exhaustive search nor the required finding that the case is wholly frivolous. Counsel must certify to an exhaustive reading and endeavor to uncover all possible issues for review so that the frivolity of the appeal may be determined by the lower court, or, as in Lohr, at the appellate level.

In the instant case, notwithstanding the fact that the pro se petition raised identical issues to those raised on direct appeal, we have a mandate from the Supreme Court with express instructions to appoint counsel and allow appellant to “... upon request, amend her petition.” This remand carries with it a strengthening obligation to assess the quality of appellant’s case in an arena wherein she is accompanied by a zealous advocate.

In accordance with the spirit of Lohr and McClendon and the manner in which they were disposed of on appeal, it should be noted that McClendon reduces the Anders requirements to a practical level.

“If ... ‘wholly frivolous’ means that there are no points present that ‘might arguably support an appeal’ counsel is saddled with an impossible burden, if he is nevertheless required to file a brief containing arguments that are non-existent. If on the other hand, there are claims of arguable merit, even though counsel may not have any confidence in them, ... the appeal is not ‘wholly frivolous’ and counsel is not entitled to seek leave to withdraw.” Id., 495 Pa. at 472-473, 434 A.2d at 1188.

Here, without anything more than “the bare record available in the Superior Court” (Appellant’s Brief at 19), appellant’s present counsel has been able to list several issues which may have arguable merit. It is certainly conceivable that those same issues would have captured the attention of prior counsel upon an “exhaustive” reading of the record. (Indeed, it should be noted that Mr. Seidman only admits to having read the Notes of Testimony). Here, the “no-merit letter” is insufficient in light of the fact that there appear to be arguably meritorious issues, and the sufficiency of counsel’s perusal of the record is not reflected.

It is also possible that appellant was never informed of her right to proceed pro se as she contends she was never given a copy of the letter written by counsel. The court in Commonwealth v. Baker, supra, states that the third requirement of Anders is the most important. “Anders clearly commands ... that the client be given a copy of counsel’s brief in time to present the appeal in propria persona.” Id., 429 Pa. at 214, 239 A.2d at 203.

Since the procedures utilized herein were defective, they acted to deprive appellant of her right to adequate representation. We remand for an evidentiary hearing on the claims raised in appellant’s brief and any other issues discerned by counsel after an exhaustive search of the record in accordance with this opinion. Jurisdiction is relinquished.

ROWLEY, J., noted his dissent.

      . See page 323, infra.

      . Progeny of Anders have provided us with a continuum of degrees of "meritless”. Counsel’s request to withdraw may only be granted if the court finds the case to be "wholly frivolous”; it may not be entertained if the appeal merely has "arguable merit” nor if it lacks merit. Mere absence of merit is not enough to support a request to withdraw or the granting of it. Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974); Commonwealth v. Worthy, 301 Pa.Super. 46, 446 A.2d 1327 (1982).

      . It should be noted, in view of the fact that the Lohr Court chose to review the case on the merits, that Lohr involved a second PCHA petition, whereas this case involved the dismissal of the first post-conviction petition. The Court was concerned with considerations of judicial economy. Additionally, the attorney in Lohr apparently submitted a short petition to appellant which he rejected in favor of his own. The issues which he presented are evaluated by the Court.

      . Moreover, counsel states in his letter that the sufficiency issue was a matter of credibility for the Judge and that the other issue was finally disposed of by the Supreme Court when, in fact, both issues were before that Court.


author: HOFFMAN, Judge:

text:
    479 A.2d 573
    Gene O. BROWN v. Carol Louise BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 27, 1984.
    Filed June 22, 1984.

      James B. Yelovich, Somerset, for appellant.
    James R. Di Francesco, Johnstown, for appellee.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that she has a joint interest in the coins collected by appellee, her husband, prior to their marriage. She argues that appellee, by putting the coins into jointly held safe deposit boxes after their marriage, created an inter vivos gift in her favor. Because the requirements for a valid gift were not met in this case, we affirm.

The parties were married in June, 1964, and have five children. On June 25, 1979, they separated subsequent to appellant’s filing a petition for protection from abuse and appellee’s court-ordered .eviction from the family residence. On July 5, 1979, appellant removed a coin collection from the parties’ jointly held safe deposit boxes at Johnstown Bank & Trust. Consequently, appellee filed an action for replevin of the coins in January, 1980. Following a June 24, 1981, non-jury trial, the lower court entered the following order on April 14, 1982: (1) those coins owned by appellee at the time of his marriage to appellant are his property and must be returned to him forthwith; (2) those coins purchased during the marriage are to be held in trust by appellant’s attorney for proper distribution in the parties’ divorce action; and (3) the parties (and their counsel) are to meet within 30 days to make the division. This appeal followed.

In determining whether a tenancy by the entireties has been created, the intention of the husband and wife is controlling and will be given effect. Uccellini v. Uccellini, 423 Pa. 273, 223 A.2d 694 (1966); Brenner v. Sukenik, 410 Pa. 324, 189 A.2d 246 (1963). Our Supreme Court has outlined the principles of law which are applicable to an alleged gift of the contents of a jointly owned safe deposit box, as follows:

To constitute a valid gift inter vivos of the contents of a safe deposit box, two essential elements are requisite: An intention to make an immediate gift, and such an actual or constructive delivery to the donee (a) as to divest the donor of all dominion and control, or (b) if a joint tenancy is created as to invest in the donee so much dominion and control of the subject matter of the gift as is consonant with a joint ownership or interest therein. The burden of proof is upon the claimant to prove the gift by clear and convincing evidence: Tomayko v. Carson, 368 Pa. 379, 83 A.2d 907. Where an owner of a safe deposit box and his donee execute a contract or lease which recites that the property therein is the joint property of the lessees, with right of survivorship, and that the lessees acknowledge the receipt of two keys to said box — this creates a prima facie case of a valid inter vivos gift of a joint interest (with right of survivorship) in said property. The majority view appears to be that parol evidence is admissible (a) to prove an intention, or lack of intention, to make a gift as well as (b) delivery or failure of delivery, because the instrument is considered to be incomplete or (sometimes) equivocal____ However, it is established that the parol evidence which is necessary to disprove such gift must be clear, precise and ... [convincing]____
... [S]uch a contract creates a prima facie valid inter vivos gift of a joint interest (with right of survivorship) in all the property in said box, and the burden of proof shifts to the parties contesting the gift to prove a want of intention or a failure of delivery____

Secary Estate, 407 Pa. 162, 166-67, 180 A.2d 572, 574 (1962), quoting King Estate, 387 Pa. 119, 122-24, 126 A.2d 463, 465 (1956) (citations omitted). The fact that a safe deposit box is leased in the names of both the husband and wife is not of itself sufficient to establish joint ownership of the contents found therein which originally belonged to one of the lessees alone. Christie Estate, 436 Pa. 101, 105, 259 A.2d 156, 158 (1969); Tomayko v. Carson, 368 Pa. 379, 385, 83 A.2d 907, 909 (1951); Wohleber’s Estate, 320 Pa. 83, 84-87, 181 A. 479, 480 (1935).

In King Estate, supra, our Supreme Court held that the evidence supported finding a completed inter vivos gift of stocks and bonds contained in a safe deposit box because (1) the safe deposit box contract provided that the lessees were joint tenants and that all property put into the box would be the joint property of both lessees and, upon the death of either lessee, would pass to the survivor; (2) when the husband changed his safe deposit box contract with the bank from his name to that of himself and his wife, he told the bank custodian that he did not want his wife merely to have access, but that he wanted a joint contract; and (3) both parties possessed keys to the box and had separately exercised their respective right of access to the box. The Court noted that the language of the contract created a prima facie valid inter vivos gift of a joint interest in the contents of the box and thereby shifted the burden of proof to the party contesting the gift to prove a want of intention or a failure of delivery by “clear, precise and indubitable” evidence. 387 Pa. at 123, 126 A.2d at 465.

In several other cases involving the contents of a jointly held safe deposit box, however, the Supreme Court has ruled that no valid inter vivos gift was created. In Wohle-ber’s Estate, supra, the Court found that even if the presence of certain bonds in a safe deposit box leased in the names of both the husband and wife indicated prima facie joint ownership, such prima facie evidence could not prevail in the face of a showing that the bonds were in fact owned by the husband. The evidence showed that (1) the bonds were bought and paid for by the husband; (2) the husband clipped the coupons and made the deposits, sometimes in his own account and sometimes in the parties’ joint account; and (3) the wife never exercised any acts of dominion or ownership over the bonds. The Court emphasized that the husband’s exercise of acts of ownership occurred over a long period of time. In Secary Estate, supra, two brothers leased a safe deposit box under a contract which provided that the lessees were joint tenants and that all property put into the box would be the joint property of both and, upon the death of either, would pass to the survivor. After one brother died, the surviving brother contested the decedent’s estate’s sole right to the box’s contents. The Court, noting that the contract shifted the burden of proof to the estate, held that the estate sustained its burden of showing a failure of delivery of the box and its contents to the surviving brother because (1) the decedent had entered the box on 33 separate occasions while the surviving brother had entered the box only twice — both times after the decedent’s death and in the company of the decedent’s widow; (2) both keys to the box had been kept in the decedent’s home and the surviving brother never possessed a key; and (3) the contents of the box (stocks, bonds, lease) were all in the decedent’s name and the surviving brother had never asserted that they were his individual property. In Christ ie Estate, supra, the contract for one safe deposit box provided that either lessee would have a right of access to the box and the contract for a second safe deposit box provided that each lessee was the owner of all present and future contents of the box. The Court ruled that the language of the leases was insufficient to create a gift from the husband to the wife and that evidence of the wife’s possession of a key and occasional exercise of her right to access was not sufficiently clear and convincing to support her claim to ownership of the stock certificates registered in the husband’s name and kept in the boxes. See also Chadrow v. Kellman, 378 Pa. 237, 106 A.2d 594 (1954) (claimant to contents of safe deposit box held in joint names of decedent and claimant did not establish ownership of contents under valid inter vivos gift because no actual or constructive delivery occurred where claimant never possessed key to box and never had access thereto).

In the instant case, appellee testified at trial that he began collecting coins in the summer of 1957 and that, after his 1964 marriage to appellant, he put his coin collection into a safe deposit box at the bank where he worked. He put both his and appellant’s names on the box for inheritance tax purposes, ie. if he died, the coins would be considered appellant’s property without audit or taxes. Ap-pellee continued to collect coins through his job at the bank, replacing coins of interest to collectors with pocket change of equal face value, and also through mail purchases of proof sets and commemorative coins from the U.S. Mint. He paid for the coins from the parties’ joint checking account, into which only he made deposits because appellant had given up her job upon the birth of their first child. Although appellee told appellant where the keys to the box were and allowed appellant free access to the contents of the box, appellant never expressed any interest in the coins and never entered the box prior to July of 1979. Appellee therefore asserts that the coins, which have an estimated value of $35,000 are his sole and individual property. (N.T. June 24, 1981 at 4-26). Appellant, on the other hand, while admitting that she never collected coins or contributed to appellee’s coin collection, testified that when the parties married, she assumed that they would put both their names on everything and own everything together. She herself changed her individual bank account to a joint account after the marriage. Appellant testified that appellee showed her where the key to the box was located in the event something happened to him so that she could have access to the box. She further testified that, after the parties separated in June, 1979, she went to the box, which also contained family papers, for the first time on July 3, 1979, to get the children’s birth certificates because she was forced to apply for public assistance. She returned to the box two days later to take the coins because she feared that appellee would remove her name from the box and dispose of the coins, thereby leaving her with nothing. At that point, appellee had already taken appellant’s name off the joint checking account. Appellant stated that the reason she did not contribute money to the family income was because she was home raising the parties’ five children. (N.T. June 24, 1981 at 34-78).

From these facts, the lower court concluded that appellee, by placing appellant’s name on the safe deposit box, did not thereby make a gift of his coins to her. We agree. Unlike the safe deposit box lease executed in King Estate, supra, the instant rental agreement, although designated a joint account and signed by both parties on January 16, 1976, did not expressly provide that the property in the box was.to be the joint property of both lessees, with right of survivorship; therefore, the burden remained on appellant to prove by clear and convincing evidence that appellee had the intention to make an immediate gift of a joint interest in the coins and that there was actual or constructive delivery. In the above-cited cases, our Supreme Court has said that the fact of a jointly leased safe deposit box is not of itself sufficient to create joint ownership in its contents. Instead, the Court has required the claimant to have at least exercised his or her right of access to the box during the alleged joint ownership. See King Estate, supra, and Secary Estate, supra. Even where the claimant has sought occasional access to the box, the Court has indicated that that may still not be enough to prevail over the alleged donor’s clear ownership of the disputed contents of the box. See Christie Estate, supra. Like the husband in Wohleber’s Estate, supra, the instant appellee originally owned the disputed property, bought and paid for the property, and maintained it over a long period of time while his spouse never exercised any acts of dominion or ownership over the property. Therefore, the evidence does not support a finding that a valid gift was made.

It is not clear from the testimony whether appellee intended the coins to become appellant’s property immediately upon his putting them into the safe deposit box or only upon the event of his death in order to avoid inheritance taxes. We find it reasonable to conclude, however, that it was not the intention of the parties to give appellant immediate ownership rights in the coin collection. Therefore, in light of the aforementioned caselaw, we hold that appellant has failed to meet her burden of proving by clear and convincing evidence that appellee created a valid inter vivos gift of a joint interest in the coins collected by appellee prior to their marriage and, accordingly, affirm the order of the court below.

Affirmed.

      . The parties also have a divorce suit, 95 Divorce 1980, pending in this matter. In that suit, after a hearing and argument, the lower court on October 8, 1980, ordered that the divorce action proceed under the Divorce Code of 1980. Because of that ruling and the Code’s marital property distribution provisions, the lower court recognized that its order in the present replevin action would have limited effect.

      . On cross-examination, appellee testified that, by placing the coins in the safe deposit boxes and having the boxes in joint names, he did not intend to give appellant an interest in the coins. (N.T. June 24, 1981 at 21). Upon further questioning, appellee indicated that, in order to avoid the tax impact, he put the coins in the jointly held safe deposit boxes and they became appellant's property thereby. (N.T. June 24, 1981 at 22). The lower court concluded that appellee put appellant’s name on the boxes so that, in the event of his death, appellant could take the coins out without any problem. (N.T. June 24, 1981 at 24).
      Although a tax avoidance motivation may suggest a donative intent, Clay v. Reiser, 460 Pa. 620, 626-27 n. 3, 334 A.2d 263, 266 n. 3 (1975), it is ultimately immaterial to the court’s determination that a gift was or was not effected. Cohen v. Tonkin, 358 Pa. 422, 425, 57 A.2d 840, 842 (1948).

      . We also reject appellant’s contention that the parties had an implied contract to hold all their property jointly. A contract implied in fact “is an actual contract ... which arises where the parties agree upon the obligations to be incurred, but their intention, instead of being expressed in words, is inferred from their acts in the light of the surrounding circumstances." Cameron v. Eynon, 332 Pa. 529, 532, 3 A.2d 423, 424 (1938) (emphasis in original). From the facts of this case, we are unable to infer that the parties agreed to hold all their property, particularly the coin collection, jointly after their marriage.