author: BECK, Judge.

text:
    612 A.2d 512
    COMMONWEALTH of Pennsylvania, Appellant, v. Frank A. BOWEN.
    Superior Court of Pennsylvania.
    Argued Jan. 22, 1992.
    Filed July 20, 1992.

      Harriet R. Brumberg, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Lee Mandell, Philadelphia (submitted), for appellee.
    Before McEWEN, BECK and KELLY, JJ.
   BECK, Judge.

The Commonwealth appeals the judgment of sentence imposed after appellee was found guilty of three counts of robbery, conspiracy and possessing an instrument of crime. The Commonwealth claims that the sentencing court erred in failing to apply the deadly weapon enhancement provision of the sentencing guidelines when it imposed sentence on appellee. For the reasons which follow, we vacate the sentence and remand for resentencing.

The conviction at issue arose as a result of a hold-up which took place on January 6, 1990 outside a Denny’s Restaurant on City Line Avenue in Philadelphia. Appellee Frank Bowen and five other cohorts followed the three victims out of the restaurant. As the victims, Kevin Whitehead, Gary Taggert and Terrance Taggert, approached their car, the assailants pulled weapons and commenced the assault by announcing, “This is a stick-up.” Victim Kevin managed to jump in the passenger side of their two door vehicle and victim Terrance climbed in the driver’s side. Meanwhile, the robbers took victim Gary’s watch and coat from him and Gary ran back into the restaurant. The assailants then dragged Terrance out of the car, held him at gunpoint, beat him up and took his money from his pocket.

Kevin at some point got into the back seat of the car and was seated there when three assailants, including appellee Bowen, climbed into the car and demanded Kevin’s leather jacket. Two of the robbers were in the front seat and another was beside Kevin in the back seat. Kevin identified appellee as the person who was seated in the passenger front seat and to whom he eventually gave his jacket. At first, Kevin refused to hand over his jacket. He indicated he changed his mind after he heard a shot coming from outside and behind the vehicle and one of the attackers in the car hit him in the face. As a result of this coercion, Kevin handed over his jacket to appellee.

Kevin repeatedly testified that when he and his friends first were approached by the attackers and informed of the “stick-up”, each of the assailants had a gun. The weapons were handguns except for one shotgun which Kevin saw being pulled out of the trunk of a nearby car. When appellee was in the front seat of the car, threatening Kevin and demanding his leather jacket, Kevin did not see a gun in appellee’s hand. However, Kevin unequivocally stated that at least two weapons were visible in the car at the time appellee took his jacket. His testimony was that both the assailant in the driver’s seat and the man in the back seat next to him were holding weapons. Given the testimony at trial, it is beyond dispute that the armed men in the car and appellee Bowen were acting in concert and that Bowen, even if not presently or overtly displaying a weapon while in the car, was inches from his armed partners in crime.

The testimony of one of the other victims, Terrance Taggert, was less specific with respect to the number of weapons wielded by the robbers. Terrance remembered seeing two guns and a shotgun in use during the robbery, but could not identify which assailant had possession of the guns.

At the close of trial, the court as trier of fact found appellee guilty of theft, assault, recklessly endangering another person, possession of an instrument of crime, conspiracy, and robbery. The court found appellee not guilty of violating the uniform firearms act. When the court announced its verdict, it explained to defense counsel that “the basis ... for the assault, theft, and recklessly endangering another person and robbery, all would be on the basis of conspiracy.” It did not likewise so indicate for the possession of instrument of crime.

When it announced its verdict, the trial court stated that it found appellee “guilty on all three [counts] ... [of] robbery as a felony of the first degree”. At sentencing, however, the court indicated that its verdict was for robbery as a second degree felony. The robbery statute provides that second degree robbery occurs if, during the course of a theft, a person “inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury.” 18 Pa.C.S. § 3701(a)(l)(iv). First degree robbery is committed if, inter alia, during the course of a theft, a person “threatens another with or intentionally puts him in fear of immediate serious bodily injury”. 18 Pa.C.S. § 3701(a)(l)(ii). We note that the robbery here was found to be committed at gunpoint and as such would seem squarely to fall within the definition of section 3701(a)(l)(ii) as a first degree felony. However, for sentencing purposes, a finding of first degree robbery would have exposed appellee to the enhancement provisions of the Mandatory Sentencing Act, 42 Pa.C.S. § 9712, which imposes a mandatory minimum sentence for visible possession of a firearm during the commission of a first degree robbery. See Commonwealth v. Matos, 382 Pa.Super. 401, 555 A.2d 901 (1989), appeal denied, 525 Pa. 597, 575 A.2d 563 (1990) (defendant properly sentenced under mandatory sentencing act where record clearly demonstrated defendant’s knowledge of his co-felon’s visible possession of firearm during robbery). The record does not make clear at what point the court decided that the robbery conviction was for a second degree robbery only. Clearly, however, by the time the sentencing hearing commenced on April 24, 1991, the court had determined its sentencing scheme which was based on the assumption that appellee’s sentence would not reflect the use of the firearms during the commission of the offense.

A sentencing hearing was held on April 24,1991, at which the trial court imposed the following sentence. For second degree robbery the court sentenced appellee to two concurrent terms of imprisonment of five months to eighteen months; a concurrent term of probation of thirty-six months on the third count of robbery and conspiracy; and a concurrent term of twenty-four months probation for possessing an instrument of crime. The Commonwealth filed a petition to reconsider sentence, arguing that the trial court erred in failing to apply the deadly weapon enhancement of the sentencing guidelines. The petition was denied and this appeal by the Commonwealth followed.

The sentencing guidelines provide in part that:

§ 303.4 Deadly weapon enhancement (a) When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence range which would otherwise have been applicable.

204 Pa.Code § 303.4.

It cannot be disputed that, where applicable, the deadly weapon enhancement provision requires that the trial court add the specified time to the guideline sentence range in order to determine the proper range of sentencing. As this court has stressed:

The trial court has no discretion as to whether it will apply § 303.4 and add at least twelve months and up to twenty-four months confinement to the guideline sentence range when the defendant possesses a deadly weapon during the commission of an offense. It must do this. The court’s discretion comes into play in imposing sentence, only after it has determined the proper sentencing guideline range.

Commonwealth v. Dotzman, supra, 403 Pa.Super. at 334, 588 A.2d at 1317 (emphasis in original). See also Commonwealth v. Brown, 402 Pa.Super. 369, 587 A.2d 6 (1991).

Clearly, therefore, the court cannot decline to enhance the sentencing range if appellee possessed a deadly weapon during the commission of the robbery of which he was convicted here. No party disputes this principle. The heart of the argument in the instant case is whether appellee “possessed” a deadly weapon, i.e. a gun, during the robbery. Additionally, we must determine whether the trial court’s belated and after-the-fact finding that “this defendant did not have a weapon” was an abuse of discretion which was unsupported by the record and in conflict with the court’s verdict of guilt. We conclude that, on the basis of this record, the trial court abused its discretion in refusing to apply the deadly weapon enhancement because the record supports no other conclusion than that appellee “possessed” a deadly weapon during the commission of the robbery within the meaning of the deadly weapon enhancement. Moreover, the trial court’s attempt to “find” otherwise at the sentencing stage constituted an abuse of discretion.

We are guided in our determination by several considerations. First, the legislature has provided us with a definition of “possessed” to be used in the context of an enhancement decision. Thus, 42 Pa.C.S. § 2154(b) provides: “As used in this section [regarding sentencing guidelines] the term ‘possessed’ means on the defendant’s person or within his immediate physical control”. This provision reflects a limitation on the imposition of the deadly weapon enhancement and precludes use of it in situations wherein only a defendant’s accomplice possesses the weapon and the weapon used is not within the defendant’s immediate physical control. Our research has disclosed no cases which have applied the specific provision just cited or interpreted the meaning of “within his immediate physical control” in the context of applying the deadly weapon enhancement. Hence, we write on a matter of first impression.

We find that the deadly weapon enhancement was applicable to this case; either on the basis that appellee held a gun during the course of the crime or that the gun was within the immediate physical control of the appellee. At the outset, we note that at trial there was uncontradicted evidence that during the course of the robbery appellee had a gun “on [his] person.” The only witness who gave specific testimony regarding the actions of this particular assailant was victim Kevin Whitehead. The victim’s repeated and unequivocal testimony was that all the robbers had weapons when they approached him and the other victims and announced the “stick-up.” It was at this point, with all the assailants acting in concert, that the robbery commenced. Thus, it is irrelevant that later when appellee literally relieved Kevin of his coat in the car, Kevin could not attest to whether appellee was holding a gun at the time. The robbery by then was long underway and the testimony was clear that appellee possessed a gun during its commission. Thus, the trial court’s statement in its opinion that “the taking of property by this defendant ... did not involve the use of a weapon to threaten or place another in fear of serious bodily injury” flies in the face of the only evidence offered at trial regarding this defendant’s involvement.

Moreover, we agree with the Commonwealth that the trial court’s own verdict belies its assertion that appellee did not use a gun to perpetrate this robbery. Immediately following trial the court found appellee guilty of robbery, conspiracy and possession of an instrument of crime. The court also indicated that the robbery conviction was based on a conspiracy theory but did not explain the possession conviction on the same basis. This verdict made two things clear. First, the combination of the robbery and PIC convictions makes wholly untenable the trial court’s assertion that the “taking of property by this defendant ... did not involve the use of a weapon”. The only instrument which conceivably could support the PIC conviction was a gun. Moreover, in order to convict appellee of PIC, the court must have found beyond a reasonable doubt, that appellee possessed the gun with intent to use it for a criminal purpose. That purpose clearly was the taking of Kevin’s [and the others’] property. If the robbery “did not involve the use of a weapon,” appellee’s conviction for PIC makes no sense. In our view, if appellee possessed a gun at any time during the course of the robbery, it is without significance that at the moment he actually “took” Kevin’s jacket from his hands, appellee displayed no weapon. The use of the weapon, indeed numerous weapons, had already accomplished the intended purpose, which was to intimidate and coerce the victims into surrendering their property to the gunmen.

In addition, Kevin’s testimony was uncontradicted that when he was surrounded by appellee and two accomplices inside the car, two of the accomplices had weapons in their hands. One of the gunmen was in the front seat inches away from appellee. The question then is whether a gun was within the immediate physical control of appellee. Even if we were to assume that appellee did not possess a gun at the point Kevin was cornered, assaulted and robbed inside the car, we would conclude that a gun was within appellee’s immediate physical control. Therefore assuming appellee did not have a gun “on [his] person” in the car, it is hard to imagine weapons more within his immediate physical control than were the weapons of his companions at that moment. Appellee had ready access to the physical possession of a gun, under the circumstances described here.

Surely, the intent of the legislature, in enacting section 2154(b) and specifying the definition of “possession” for weapon enhancement purposes, was to assure that an appropriate nexus existed between the use of the gun and the defendant’s capability to exercise control over it during the crime. The definition of “possession” was narrowed in order to limit the application of the enhancement provisions to only those defendants who actually had use of a gun or other deadly weapon during the commission of a crime.

There is no question that, under the particular circumstances of this robbery, appellee had use of a deadly weapon in order to commit the offense. The fact that at the time of the actual “taking” no witness saw a gun in his hand does not detract from this conclusion. The weapons were within arm’s reach of appellee, were within his immediate physical control, and were used to perpetrate this robbery. Clearly, the deadly weapons enhancement was intended to address, and redress, situations like this.

Finally, the Commonwealth argues that the trial court is not permitted to “recast” its verdict at the sentencing stage by “finding” that appellee “did not have a gun”, where this finding is wholly inconsistent with its previously entered verdict and unsupported by the evidence at trial. We agree. The trial court’s formulation, given the circumstances of the instant case, was an attempt to change its original verdict in order to avoid the dictates of the sentencing code. This is not permitted. As this court recently stressed:

[If] the trial court was attempting to enter a verdict different than that which it entered [originally], we would be compelled to reject any such alteration. An attempt to modify or explain, at this late stage, an already clear verdict must be ineffective.

Commonwealth v. Reading, 412 Pa.Super. 239, 247, 603 A.2d 197, 201 (1992) (citations omitted).

We conclude that the trial court erred in not applying the deadly weapon enhancement in determining the correct sentencing range for appellee. While the sentencing code confers discretion upon the trial court to fashion a sentence outside the guidelines, the court must nevertheless begin from the correct starting point and thereafter must place adequate reasons for deviation on the record. We reiterate that, where it is applicable, the trial court lacks the discretion to refuse to apply the deadly weapon enhancement. See Commonwealth v. Scullin, 414 Pa.Super. 442, 607 A.2d 750 (1992). Here, the deadly weapon enhancement was applicable to determine the correct sentencing range under the guidelines. Since the trial court failed to consider the correct sentencing range, we vacate the sentence and remand the case for resentencing with the deadly weapon enhancement taken into account.

The judgment of sentence is vacated and the case is remanded for resentencing in accordance with this opinion. Jurisdiction is relinquished.

McEWEN, J., concurs.

      . 204 Pa.Code § 303.4, reprinted following 42 Pa.C.S.A. § 9721.

      . Theft, assault, and recklessly endangering another person merged for sentencing purposes.

      . As a preliminary matter, we note that the Commonwealth has complied with the requirements of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and Pa.R.A.P. 2119(f), by including in its brief a separate and concise statement of the reasons for allowance of appeal. This court will permit appeal from the discretionary aspects of a sentence where it appears that there is a substantial question that the sentence imposed is not appropriate under the sentencing code as a whole. This court has consistently found that a substantial question is raised when the trial court holds that the deadly weapon enhancement is inapplicable to the sentence imposed. See, e.g., Commonwealth v. Dotzman, 403 Pa.Super. 325, 327, 588 A.2d 1312, 1314 (1991).

      . Commentary on the sentencing guidelines by Commission on Sentencing chairman John W. O’Brien includes the following explanation regarding the meaning of “possessed” in the context of enhancement provisions:
      The legislature thereby eliminated the application of the deadly weapon enhancement when the defendant’s accomplice, not the defendant, possessed the deadly weapon. The statutory definition superseded the guidelines provisions for all cases sentenced on or after February 9, 1987. The amendment to § 303.4 reflects the new statute [42 Pa.C.S. § 2154(b) ].

      . In Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985) (en banc), this court held that a weapon enhancement provision which required mere “possession” without requiring that some nexus be established between possession, weapon and the crime, is unconstitutionally void for vagueness. Judge Tamilia, in the majority opinion, reasoned:
      Thus, if the weapon enhancement provision were to be construed to define possession as physical control for the purpose of immediate use, it would meet the test of constitutionality more clearly than the broader concept of possession, which could mean control even in a remote place, with neither intent nor capability of use at the time the crime charged was being committed.
      346 Pa.Super at 616, 500 A.2d at 119.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    612 A.2d 517
    Debra PATTON v. HANOVER INSURANCE COMPANY and J.C. Penney Insurance Company. Appeal of J.C. PENNEY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 22, 1992.
    Filed Aug. 26, 1992.

      Michael E. Greenberg, Philadelphia, for appellant.
    Frances Minnis, Philadelphia, for Patton, appellee.
    Before ROWLEY, President Judge, and MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County which denied appellant J.C. Penney Insurance Company’s preliminary objections and compelled arbitration. Herein, appellant contends: 1) The order denying its preliminary objections to appellee’s petition to compel arbitration is final and appealable; and 2) Appellee does not qualify as a “covered person” under the insurance policy issued by appellant and therefore is not entitled to compel arbitration under the terms of the insurance contract. Contrary to appellant’s position, we find that the order in question is interlocutory. Accordingly, we quash this appeal.

The record reveals the following: In her petition to compel arbitration, appellee alleges that on January 24, 1990, she was a pedestrian who was lawfully crossing Broad Street at its intersection with Allegheny Avenue. While she was crossing the street, two uninsured motor vehicles collided which caused one of the uninsured vehicles to strike her. After hitting appellee, the uninsured vehicle struck motor vehicles owned by Adrienne Lauer and Linda Melvin. Ms. Melvin’s car was insured by appellant, J.C. Penney Insurance Company. Appellee was injured as a result of her contact with the uninsured car. At the time of the accident, appellee neither owned a motor vehicle, nor did she have any policy of insurance which would provide to her first party or uninsured motorist benefits.

Appellee made repeated demands upon appellant to settle or to submit the case to arbitration in accordance with the insurance policy in question. However, appellant refused, and appellee then petitioned the court to compel arbitration. Appellant responded by filing preliminary objections which alleged that appellee did not qualify as a “covered person” under the contract and therefore no agreement to arbitrate existed. Without explanation, the lower court entered an order denying the preliminary objections and directing the parties to arbitrate. This appeal followed.

First, we must address the question of whether the order dismissing appellant's preliminary objections and compelling arbitration is interlocutory. Generally, a final order is one which ends the litigation or disposes of the entire case. Cassidy v. Keystone Ins. Co., 297 Pa.Super. 421, 421, 443 A.2d 1193, 1193 (1982), citing Piltzer v. Independence Federal Savings and Loan Ass. of Philadelphia, 456 Pa. 402, 319 A.2d 677 (1974). Since the order in question merely directed the parties to proceed to arbitration and did not end the litigation, the order is interlocutory and not appealable by right. Cf., Cassidy, supra, citing Wilson v. Keystone Ins. Co., 289 Pa.Super. 101, 432 A.2d 1071 (1981) (order appointing arbitrator did not end litigation, and therefore it is interlocutory and not appealable by right); Gardner v. Prudential Insurance Co., 332 Pa.Super. 358, 481 A.2d 654 (1984) (no statutory authority exists for review of an order which compels arbitration). See also Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644, 646 (1983), cert. denied, 465 U.S. 1024, 104 S.Ct. 1279, 79 L.Ed.2d 683 (1984) (appeal from the denial of preliminary objections is interlocutory and should be quashed); Urbanao v. Meneses, 288 Pa.Super. 103, 431 A.2d 308 (1981); Pa.R.App.P. 311, Interlocutory Appeals as of Right.

Further, we note that an interlocutory appeal may be taken by permission pursuant to Chapter 13 of the Rules of Appellate Procedure. Pa.R.App.P. 312 and 1301 et seq. However, appellant has failed to invoke the procedure outlined in Chapter 13 of the Rules of Appellate Procedure. Since appellant has neglected to seek permission to appeal from an interlocutory order, Pa.R.App.P. 1311, the appeal must be quashed. See Cassidy, supra.

Appellant, however, contends that this order is final and appealable since the order “effectively puts [appellant] ‘out-of-court’ ”. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978). Appellant argues that without immediate review of the order denying its preliminary objections, the question of whether appellee is a “covered person” will never be subjected to judicial review. In support of his argument, appellant cites to 42 Pa.C.S.A. § 7314(a)(l)(v) which provides:

(1) On application of a party, the court shall vacate an [arbitration] award where:

******
(v) there was no agreement to arbitrate and the issue of the existence of an agreement to arbitrate was not adversely determined in proceedings under the provisions of section 7304 (relating to court proceedings to compel or stay arbitration) and the applicant-party raised the issue of the existence of an agreement to arbitrate at the hearing.

Appellant argues that since the lower court dismissed its preliminary objections, the lower court has effectively determined that an agreement to arbitrate exists, i.e., that appellee is a covered person” under the terms of the insurance contract. Therefore, appellant submits that the lower court cannot later vacate an arbitrators award (assuming one is entered) on the grounds that an agreement to arbitrate did not exist. 42 Pa.C.S.A. § 7314(a)(l)(v).

While it is unclear whether the trial court found appellee to be a “covered person” or whether the trial court simply decided that question was one to be raised before the arbitrators, it is clear that the question of whether an agreement to arbitrate exists is one which the lower court must ultimately address once the issue is raised pursuant to 42 Pa.C.S.A. § 7304 or § 7314(a)(l)(v). Once appellee petitioned the lower court to compel arbitration and appellant denied the existence of an agreement to arbitrate, the lower court was required to “proceed summarily to determine the issue so raised and shall order the parties to proceed with arbitration if it finds for the moving party. Otherwise the application [to compel arbitration] shall be denied.” 42 Pa.C.S.A. § 7304(a). Clearly, once the question has been determined adversely by the lower court, we will be permitted to review that decision in a timely appeal. Cf., In re Glover, 137 Pa.Cmwlth. 429, 587 A.2d 25 (1991), allocatur denied 528 Pa. 633, 598 A.2d 286 (1991) (Commonwealth Court affirmed lower court determination that petitioner was not an “employee” as defined by the arbitration agreement and therefore petitioner was not entitled to compel arbitration). See also Washington Ins. Co. v. Rosato, 328 Pa.Super. 290, 476 A.2d 1334 (1984) (where lower court had power to hear question, lower court’s resolution of that issue was proper subject of an appeal to the Superior Court); Estate of Rosato v. Harleysville Mutual Ins. Co., 328 Pa.Super. 278, 476 A.2d 1328 (1984) (same).

Assuming the lower court has not already adversely determined this issue, appellants may raise the issue before the arbitrators. 42 Pa.C.S.A. § 7314(a)(l)(v). If the arbitrators find an agreement to arbitrate exists, the court must then review the question of whether such an agreement existed between the parties. Id,. It is true that a court’s authority to vacate or modify an arbitration award is extremely limited pursuant to the Uniform Arbitration Act. See 42 Pa.C.S.A. § 7302(a); Azpell v. Old Republic Ins. Co., 526 Pa. 179, 584 A.2d 950 (1991) (discussing the limited authority of a court to vacate a statutory arbitration award); Popskyj v. Keystone Ins. Co., 388 Pa.Super. 429, 565 A.2d 1184 (1989), allocatur denied 525 Pa. 602, 575 A.2d 567 (1990) (same). However, the threshold question of whether an agreement to arbitrate exists is, by statute, one which the lower court, and necessarily this court, has the authority to adjudicate. See In re Glover, supra; 42 Pa. C.S.A. § 7304 and § 7314(a)(l)(v). Thus, assuming arguendo that the lower court concludes that appellee is a “covered person” and an arbitrators award is entered as a judgment, appellant may then raise the issue of the existence of an agreement to arbitrate before this court. Until then, however, it would be premature for this court to entertain the question.

Appeal quashed. Case remanded for further proceedings in accordance with the provisions of this opinion. Jurisdiction relinquished.

MONTEMURO, J., concurs in the result.

      . Although the lower court did dismiss appellant’s preliminary objections, we note that nowhere in the record has the lower court specifically stated that appellee qualifies as a “covered person” under the insurance policy.

      . We note that the important question in this case is not whether an agreement to arbitrate is included within the contract of insurance, but rather is whether appellee is a "covered person” under the contract and thereby entitled to enforce the arbitration provision. Cf., In re Glover, supra (petitioner was not an “employee” as defined in contract and therefore was not entitled to compel arbitration).


author: POPOVICH, Judge: HOFFMAN, Judge,

text:
    612 A.2d 520
    COMMONWEALTH of Pennsylvania, Appellant, v. Ricardo LOPEZ, Appellee.
    Superior Court of Pennsylvania.
    Argued May 27, 1992.
    Filed Aug. 26, 1992.

      Karen L. Grigsby, Asst. Dist. Atty., Philadelphia, for Com., appellant.

      Marc Neff, Philadelphia, for appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County entered on November 20, 1991, suppressing physical evidence and a statement made by Appellee. The Commonwealth contends the lower court erred in suppressing the evidence because the officers were faced with exigent circumstances which justified the warrantless entry and arrest of Appellee. Since we agree that the suppression court erred in suppressing the evidence, we vacate the order and remand for trial.

When reviewing the decision of a suppression court, “[w]e are bound by the facts found in the record ... and may reverse the suppression court only if the legal conclusions drawn from those facts are in error.” Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986), quoting Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985). See also Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).

Applying the aforementioned standard of review, we find the record reveals the following facts: At a suppression hearing before the Honorable Levan Gordon on August 21, 1991, testimony was heard from the officers involved in the surveillance and search of 429 West Courtland Street in Philadelphia. On March 19, 1990, Officer Sharkey received information from a confidential, reliable informant that Appellee was selling kilos of cocaine from that location. The informant said he had discussed a cocaine purchase with Appellee at that location and had viewed several kilos of cocaine on the premises.

Immediately after receiving that information, Officer Sharkey directed Sergeant Perez, Sergeant Tustin, and Corporal Newman to begin surveillance of 429 West Courtland Street, while he applied for a search warrant. The officers parked in an unmarked police car across the street from the premises, and additional officers did the same nearby. After the officers watched 429 West Courtland Street for approximately thirty minutes, they saw a man and a woman exit the house. Officer Perez testified that while the individuals were walking away from the house, the male looked in the direction of the police, then turned and went back to the premises. The man proceeded up the steps to the front door of the house, paused for a moment and then ran away from the premises. Officer Perez said he could not see what the man did while he was at the front door. The officers testified that they feared the man had alerted those persons inside the house to the officers’ presence. Consequently, Officer Perez captured the male and female who fled the area, and the other officers proceeded to the house, knocked and announced they were police and then secured the premises.

While at the front door, the officers could see people sitting in the living room, and Officer Newman saw Appellee going up steps to the second floor. After no one responded to their knock and announcement, the officers forced the door open and entered the premises. While securing the premises, Sergeant Tustin went down into the basement where, in plain view, he saw a large cache of cocaine. Also, during the time in which the police were securing the premises, Appellee allegedly told Officer Perez, “I take full responsibility.” After Officer Perez advised Appellee of his Miranda rights in Spanish and English, Appellee continued, saying, “My wife has nothing to do with it.”

Once the premises were secured, the officers called Officer Sharkey who continued with his application for a search warrant. After receiving notice that the warrant had been approved, the officers seized the cocaine, a triple beam scale, and proof of Appellee’s residency. Officer Sharkey arrived shortly thereafter with a completed search warrant.

At the conclusion of the suppression hearing, the court found as a matter of law that there were no exigent circumstances which justified entry of Appellee’s house without a search warrant. The court said the warrant “certainly could have been served later on,” and it focused on the officers’ testimony which indicated that they were not exactly sure what the individual did when he ran back to the front door of the house.

Generally, a warrantless search is presumed unreasonable unless the search is justified by an exception to the warrant requirement. Commonwealth v. Marconi, 408 Pa.Super 601, 597 A.2d 616 (1991). A warrantless search will be upheld if there are exigent circumstances such as the threat of destruction of evidence or the threat of physical harm to police officers. Commonwealth v. Frank, 413 Pa.Super. 273, 279, 605 A.2d 356, 359 (1992). However, the exigent circumstances justification does not extend to police who manufacture their own exigent circumstances. Commonwealth v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341 (1990). When ruling on the existence of exigent circumstances, “There can be no inflexible standard; ... ‘the reasonableness of searches and seizures must necessarily be determined on a case-by-case-basis.’ ” Commonwealth v. Williams, 411 Pa.Super. 586, 594, 602 A.2d 350, 354 (1992), quoting Commonwealth v. Eliff, 300 Pa.Super. 423, 438-439, 446 A.2d 927, 935 (1982).

In a similar case to that sub judice, this court found a warrantless search was supported by exigent circumstances. See Commonwealth v. Frank, 413 Pa.Super. 273, 605 A.2d 356 (1992). In Frank, the police were conducting a surveillance of an apartment complex where they believed illegal drugs were being stored and sold. While other officers were in the process of obtaining a warrant, the police at the scene arrested an individual, whom they believed to be involved in the operation, when he was about to leave the complex. Because the arrest occurred in broad daylight and proximate to the apartment of Frank, another suspect, the police feared that Frank might have observed the arrest and could destroy critical evidence. Even though search warrants had not been issued, the police immediately secured Frank’s apartment. In Frank, we found there were exigent circumstances because although there was “[n]o evidence that appellant was aware of Washington’s arrest, the arrest occurred in the open, in broad daylight, and close to appellant’s apartment. Certainly, there was an objective basis for the officers to conclude at that time in the totality of the circumstances that a risk existed that appellant observed the arrest and would succeed in destroying critical evidence.” Frank, 413 Pa.Superior Ct. at 279, 605 A.2d at 359. Certainly, the facts before us present circumstances under which the police officers reasonably believed a risk existed that Appellee had been alerted and evidence would be destroyed. Cf. Frank, supra.

This issue was also recently addressed in Commonwealth v. Williams, 411 Pa.Super. 586, 602 A.2d 350 (1992), in which an undercover policeman made a drug purchase at a house and was identified as a police officer by another individual while proximate to the house. Although the police did not have a warrant, they immediately secured the house. In Williams, this court held that the police did not have to be certain that their identity was known to those inside the house. We stated, “By no means should we confine the showing of exigent circumstances to the discrete event of the greeting; instead the problem was created when a person with apparent ability to blow [the officers’] cover approached the house.” Id. 411 Pa.Super. 586, 592, 602 A.2d at 353.

In the present case, the officers could not see exactly what the man did when he went to the front door of the house. However, the officers reasonably believed the individual ran back to the house because he observed the officers’ presence and wished to warn the people who were inside the house. The officers reasonably believed, based on objective facts that a risk existed that Appellee could succeed in destroying or removing critical evidence from the premises. Based upon the standards set forth in Frank and Williams, we find that the officers warrantless entry into the premises for the purpose of securing the house was reasonable.

Since exigent circumstances do not justify a warrantless search if such circumstances were manufactured by the officers, we must also consider whether the officers’ actions precipitated the warrantless entry. In Frank, this court noted that the police did not manufacture the exigent circumstances by deciding to arrest the first individual. Frank, 605 A.2d at 358. Therein, we held that although the police chose the place to make the arrest, the individual’s attempt to leave the apartment was the event which prompted the arrest, and it was not a “case where the police could control the timing of the search.” Id., 413 Pa.Super. 279, 605 A.2d at 359. In the present case, the officers were conducting surveillance near the premises. The warrant-less entry was precipitated by the individual running back to the house, in an apparent attempt to alert those inside, not by the officers’ actions. Therefore, we find the warrantless entry was justified by the exigency.

Having determined that the warrantless entry was proper, we reverse the decision of the court below which suppressed the physical evidence and Appellee’s statements. Accordingly, we remand for trial.

Order reversed. Case remanded for trial. Jurisdiction relinquished.

HOFFMAN, J., files a dissenting statement.

HOFFMAN, Judge,

dissenting:

I respectfully dissent. The majority finds that the officers reasonably believed that a risk existed that appellee had been alerted to their presence and that evidence would be destroyed. Consequently, they find that exigent circumstances did exist justifying a warrantless entry. I disagree.

The majority asserts that the officers reasonably concluded that the male who left the house knew the identity of the police officers and could have warned those inside. These assertions are without support in the record. Sgt. Perez, who was at most one car length from the man who fled, testified at both the suppression hearing and the preliminary hearing that the male did not knock on the door. N.T., 8/21/91 at 45-48. Moreover, there is no evidence in the record that the male knew that the individuals in the car were police officers or that he alerted those inside in any way. Thus, I do not find it reasonable to conclude that there was a substantial risk that those inside the house were alerted to the presence of the officers and thus, that exigent circumstances existed justifying a warrantless entry into the house.

In addition, I find the cases cited by the majority to be distinguishable. In Commonwealth v. Williams, 411 Pa.Super. 586, 602 A.2d 350 (1992), an undercover officer made a drug purchase at a house and was identified as a police officer by another individual in close proximity to the house. Specifically, an unidentified male said “Hello Officer” or words to that effect when the Officer passed him on the sidewalk, about three to five feet from the house. Id., 411 Pa.Superior Ct. at 591, 602 A.2d at 353. Our court found that it was reasonable for the officer to believe that his identity had been revealed and that consequently there was a possibility of the destruction of evidence. Here, there was no evidence that the officer’s identity had been revealed.

In Commonwealth v. Frank, 413 Pa.Super. 273, 605 A.2d 356 (1992), an arrest took place in broad daylight directly in front of the window of the house under surveillance. Our court held that there was an objective basis for the officers to believe that a risk existed that those inside were alerted to their presence. Specifically, our court held that when the officers drew their weapons and handcuffed an individual in front of the apartment of the appellant, there was a strong possibility that appellant became alerted to their presence. Id. 413 Pa.Superior Ct. at 279, 605 A.2d at 359. Here again, there was no evidence in the record of such police conduct that would have alerted the people inside the house of police presence in the area.

Because I find that no exigent circumstances existed to justify a warrantless entry into the house I would affirm the order of the suppression court.

      . The Commonwealth has certified that the suppression order substantially handicaps its prosecution of Appellee. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . The informant had previously given Officer Sharkey reliable information concerning narcotics transactions which resulted in seizure of large quantities of cocaine.


text:
    612 A.2d 524
    COMMONWEALTH of Pennsylvania, Appellee, v. Jorge GUZMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 23, 1992.
    Filed Aug. 24, 1992.

      Peter C. Bowers, Philadelphia, for appellant.

      Alan M. Rubenstein, Dist. Atty., Doylestown, for Com., appellee.
    Before ROWLEY, President Judge and MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Bucks County, following appellant’s conviction of possession of a controlled substance and possession of a controlled substance with intent to deliver. Appellant was sentenced to serve not less than seven and not more than fourteen years of imprisonment. Herein, appellant alleges: (1) Probable cause to arrest appellant without a warrant did not exist; (2) the warrantless search and seizure of appellant’s satchel was illegal; and (3) The court’s imposition of a mandatory minimum sentence of seven to fourteen years was illegal. Finding no error below, we affirm.

On November 11, 1988, a search warrant was executed at an apartment in Bensalem Township, and a large quantity of cocaine was seized. The resident of the apartment was then arrested. Immediately after his arrest, the individual, in an effort to receive favorable treatment from the authorities, offered to arrange a delivery of cocaine to his apartment. From his apartment, he then placed a telephone call and arranged for delivery of two kilos of cocaine. The informant told the officers that within approximately one hour appellant would deliver the cocaine to his apartment. He described appellant as a Hispanic male, approximately six feet tall with dark hair. The informant also described the car which the individual would be driving.

The police began their surveillance immediately. When appellant arrived, the police officers observed that he and his automobile matched the description given by the informant. The officers also observed that he was carrying a satchel which was large enough to contain two kilos of cocaine. Immediately after appellant knocked on the informant’s door, the police seized appellant and searched his bag. The officers found two packages which were wrapped in brown opaque tape. Although the contents of the packages were not visible to the naked eye, the two containers were consistent with the manner in which kilo quantities of cocaine are usually packaged. Within an hour after the arrest, the satchel was transported to the police station and the two packages were opened without a search warrant. The unwrapped packages yielded more than two kilos of cocaine.

Appellant first argues that probable cause to arrest him without a warrant was lacking. In the recent case of Commonwealth v. Sanchez, 416 Pa.Super. 160,-, 610 A.2d 1020, 1024 (1992), we restated, “To be constitutionally valid, a warrantless arrest must be supported by probable cause. Commonwealth v. Anderson, 360 Pa.Super. 466, 477, 520 A.2d 1184, 1186 (1987).” — Pa.Super. at-, 610 A.2d at 1024 The standard for evaluating whether probable cause exists is the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “Probable cause to arrest exists where the facts and circumstances at the time of the arrest would warrant a reasonable person in believing that the offense had been committed and that the suspect was the perpetrator of the offense.” Commonwealth v. Merriwether, 382 Pa.Super. 411, 417, 555 A.2d 906, 910 (1989).

“When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element____ We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might____ Finally we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond-a-reasonable doubt’ standard which we apply in determining guilt or innocence at trial. Commonwealth v. Devlin, 221 Pa.Super. 175, 289 A.2d 237 (1972).”

Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982), quoting Commonwealth v. Kazior, 269 Pa.Super. 518, 524, 410 A.2d 822, 824-825 (1979). See also: Commonwealth v. Chase, 394 Pa.Super. 168, 171-172, 575 A.2d 574, 575-576 (1990); Commonwealth v. Ellis, 354 Pa.Super. 11, 17-18, 510 A.2d 1253, 1256 (1986) (en banc).

Applying the “totality of the circumstances” test, we find that probable cause to arrest appellant existed. The informant provided the officers with a specific description of appellant and of his vehicle. Although the reliability of the informant could be questioned, “[e]orroboration can enhance reliability of an otherwise unknown informant.” Commonwealth v. Sorrell, 319 Pa.Super. 103, 112, 465 A.2d 1250, 1255 (1983). The information was corroborated when the officers observed a man who matched the physical description given by the informant proceed to his apartment proximate to the time predicted by the informant. Appellant was also driving a car which matched the description given by the informant. The officers also observed that appellant was carrying a satchel which was large enough to contain two kilos of cocaine. In light of the “totality of the circumstances”, we find that it was reasonable for the police to believe that appellant was in possession of cocaine with the intent to deliver.

Appellant’s second contention is that the warrantless search of his satchel was illegal, and, therefore, the cocaine should have been suppressed. The Fourth Amendment and Article I, section 8 of the Commonwealth’s constitution bars “unreasonable searches and seizures.” However, “it is of course axiomatic that an arresting officer may, without a warrant, search a person validly arrested, and the constitutionality of a search incident to a valid arrest does not depend upon whether there is any indication that the person arrested possesses weapons or evidence as the fact of a lawful arrest, standing alone, authorizes a search.” Commonwealth v. Trenge, 305 Pa.Super. 386, 403, 451 A.2d 701, 710 (1982), citing, inter alia, Michigan v. DeFillippo, 443 U.S. 81, 35, 99 S.Ct. 2627, 2630, 61 L.Ed.2d 343, 348 (1979) and Commonwealth v. Long, 489 Pa. 369, 414 A.2d 113 (1980). We find that the warrantless search of appellant’s bag was proper as a search incident to a lawful arrest.

The case of Trenge, supra, is factually similar to the case at bar. In Trenge, supra, a police officer arrested Trenge without a warrant for possession of marijuana. At the time of his arrest, Trenge was carrying a bag with a strap which secured it over his shoulder. The arresting officer confiscated the bag, immediately opened it and discovered 350 grams of marijuana inside. We found that the marijuana was lawfully seized pursuant to a search incident to a lawful arrest. Trenge, 305 Pa.Superior Ct. at 403, 451 A.2d 710. Instantly, the officers seized appellant’s satchel from his person at the time of his valid warrantless arrest, opened the bag and discovered inside two packages consistent with those in which kilos of cocaine are shipped. We find the search of appellant’s bag was proper in order to determine whether there were any weapons present and further to prevent the destruction of any evidence. Cf., Trenge, supra; Commonwealth v. Henry, 358 Pa.Super. 306, 517 A.2d 559 (1986) (search of briefcase immediately following arrest is justified as incident to a lawful arrest); Commonwealth v. Van Jordan, 310 Pa.Super. 516, 525, 456 A.2d 1055, 1060 (1983)

Appellant objects not only to the initial search but also to the continued search at the police barracks of the two packages discovered inside the satchel. Appellant argues that since the police had exclusive control of the satchel subsequent to his arrest, they were required to obtain a search warrant before unwrapping the packages. The record reveals that within one hour after returning to the barracks, the police unwrapped the opaque packages, thus revealing the cocaine inside. The United States Supreme Court held that a once an accused has been lawfully arrested and is in custody, anything that was subject to search and seizure at the time and place of arrest may be lawfully searched without a warrant, even after a substantial amount of time has lapsed following arrest. United States v. Edwards, 415 U.S. 800, 804, 94 S.Ct. 1234, 1237, 39 L.Ed.2d 771, 776 (1974). Therefore, we find that no impropriety in the officers’ actions since the packages could have been legally opened at the time of appellant’s arrest.

Appellant’s final contention relates to the legality of his sentence. Appellant alleges the mandatory minimum sentence of seven years under 18 Pa.C.S.A. § 7508(a)(3)(iii) is impermissibly vague since 35 P.S. § 780-113(f)(l.l) allows for a maximum penalty of ten years for the same crime and 42 Pa.C.S.A. § 9756(b) mandates the minimum sentence cannot exceed one half the maximum sentence. In Commonwealth v. Morales, 394 Pa.Super. 160, 575 A.2d 148 (1990), we addressed the identical question in terms of a sentence for possession of marijuana with the intent to deliver. Therein, we found that that penalty provisions of 18 Pa.C.S.A. § 7508 supercede those of 35 P.S. § 780-113, since § 7508 was the more recently enacted. Morales, supra. Since appellant was properly sentenced pursuant to 18 Pa.C.S.A. § 7508(a)(3)(iii), his challenge to the legality of his sentence must fail.

Judgment of sentence affirmed.

      . Although the telephone conversation was conducted in Spanish, Pennsylvania State Trooper Mario Battistini, who is fluent in Spanish, was present and heard the informant order two kilos of cocaine to be delivered within one hour.

      . Appellant argues that assuming there was probable cause to arrest, the officers were required to obtain a warrant prior to his arrest. However, appellant was scheduled to deliver the cocaine within one hour of the telephone conversation. The time factor made it necessary for the officers to begin surveillance immediately, as appellant could arrive with the drugs at anytime. In light of that fact, we find that exigent circumstances excused the arrest warrant requirement. See Commonwealth v. Miley, 314 Pa.Super. 88, 460 A.2d 778 (1983); Commonwealth v. Hartford, 313 Pa.Super. 213, 459 A.2d 815 (1983).

      . Appellant cites Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) and United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) for the proposition that a warrant should have been obtained prior to searching the satchel and its contents. However, not only are those cases inapposite since they relate specifically to searches of containers found within an automobile, but also they have been expressly overruled by the United States Supreme Court in California v. Acevedo, — U.S. -, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). But see, United States v. $639,558, 955 F.2d 712 (D.C.Cir.1992) (holding that the basic holding of Chadwick survived Acevedo ). We note that the decision in California v. Acevedo, supra, was handed down on May 30, 1991, over five months before defense counsel filed his appellate brief. We chastise counsel for his referring to Sanders and Chadwick without also citing Acevedo.


author: TAMILIA, Judge: BECK, Judge,

text:
    612 A.2d 987
    Richard N. KAPRES, Appellant, v. Charles HELLER, Randy Richard, Kirk Butryn, Anthony Gatti, Michael DeCapua, Michael Cole, John Luzier, Curtis P. Aldrich and Larry L. Kifer t/d/b/a Aldila Enterprises, Robert Pasko, John Galeza, Steve Amsdall, Brian Reese, Robert McCarthy, Brett Black, Mike Flinchbaugh, Richard L. Martin and Sharron Stroup Martin, Gregg Shapiro, Paul Sever, Christopher Iezzi, John Besic, Don Scovotti, Mark Allison, Phi Sigma Fraternity, Sidney Miles v. Donald J. BEICHNER and Jeff Cingle.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1991.
    Filed June 2, 1992.
    Reconsideration Granted, Opinion Corrected; Reargument Denied July 7, 1992.

      Harry H. Stump, II, Pittsburgh, for appellant.
    Fredric E. Orlansky, Pittsburgh, for Galeza, appellee.
    Jay Habas, Pittsburgh, for Sever, appellee.
    David L. Haber, Pittsburgh, for Shapiro, appellee.
    Before BECK, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Richard N. Kapres takes this appeal from the September 10, 1990, January 29, 1991, September 3, 1991 and September 4, 1991 Orders granting summary judgment for appellees. The first two Orders pertain to student tenants while the September 3 and 4 Orders granted summary judgment to adult landowners. With regard to minor defendants Gregg Shapiro, Steve Amsdall, Brett Black, Michael DeCapua, Mike Flinchbaugh and Robert Pasko, the primary issue presented for our review is whether an individual under 21 years of age, who provides alcohol to a person also under age 21, can be held liable under the social host doctrine for injuries sustained by the minor as a result of his intoxication. In addition to his argument all of the aforementioned appellees must be held liable despite their minority, appellant argues appellees Black, Flinchbaugh, Pasko and Galeza, who is over 21 years of age, as tenants of one of the premises on which appellant allegedly consumed alcohol, were liable for his injuries on the theory they knew or should have known their premises were being used for underage drinking. The resolution of this second issue is, except as to Galeza, of course, dependent upon the validity of the theory social host liability extends to a minor who serves or furnishes alcohol to another minor.

Appellees Richard and Sharron Martin and Aldrich and Kifer, t/d/b/a Aldila Enterprises, are adult landowners who rented housing to the minor appellees. Specifically, the Martins were landlords to Pasko, Galeza, Amsdall, Black, Flinchbaugh and Cingle, while none of Aldila’s tenants is a party to this appeal. Galeza, since he is an adult, is not considered in this discussion and will be dealt with separately-

Appellant argues the Martins and Aldila Enterprises, as the owners and landlords of the premises where he consumed alcohol, should be held responsible for his injuries on the theory of social host liability. Additionally, appellant argues these landowner/appellees are bound by a prior Order denying summary judgment to a similarly situated property owner/landlord on whose premises appellant had allegedly consumed alcohol on the night he was injured.

We will deal with the issues before us beginning with those pertaining to the minor defendants. On March 21, 1986, 19-year old appellant was struck by a car as he was walking home after attending a series of parties where he had been consuming alcohol. Appellees Shapiro, Amsdall, Black, DeCapua, Flinchbaugh and Pasko, who were alleged to either have served him intoxicating beverages or aided him in obtaining these beverages, were also all under 21 years of age at the time of the incident. The court found because the defendants were all under 21 years of age, and therefore minors, they owed no duty to appellant, could not be found liable under the social host doctrine and were entitled to judgment as a matter of law. The court reasoned, for the purpose of interpreting and enforcing the Liquor Code in the state of Pennsylvania, a minor has consistently been defined as an individual under the age of 21.

As an appellate court, we are bound to consider certain principles when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 557 A.2d 1064 (1989). The trial court must accept as true all well-pleaded facts relevant to the issues in the non-moving party’s pleadings, and give to him the benefit of all reasonable inferences to be drawn there from. Jefferson v. State Farm Insurance Co., 380 Pa.Super. 167, 551 A.2d 283 (1988). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the court’s conclusion no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035; see Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). The court must ignore controverted facts contained in the pleadings and restrict its review to material filed in support of and in opposition to a motion for summary judgment and to those allegations in pleadings which are uncontroverted. Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970 (1989). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988).

Appellant argues the holding in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), which imposed social host liability on adults who furnish alcohol to persons under the age of 21, should be extended to impose liability on persons between 18 and 21 years of age who provide liquor to persons between 18 and 21 years of age. In support of this argument, appellant presents for our review and consideration two Third Circuit Court of Appeals cases which, appellant contends, suggest if given the opportunity to address the issue, the Pennsylvania Supreme Court would hold an individual over the age of 18 can be criminally and civilly liable for the service of alcoholic beverages to those under 21 years of age. See Macleary v. Hines, 817 F.2d 1081 (3rd Cir., 1987), and Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3rd Cir., 1986). Both Fassett and Macleary reasoned persons under 21 but over the age of 14 were presumptively capable of negligence and, therefore, potentially liable as social hosts.

While at first blush the Third Circuit reasoning appears convincing, these decisions do not express Pennsylvania law on the particular issue involved in this appeal, to wit: whether a minor may be held liable for providing alcohol to another minor who is subsequently injured, and are not binding precedent for this Court. When speculating as to how our Supreme Court would rule given the opportunity, both Fassett and Macleary failed to explore the logic behind the compelling public policy of this Commonwealth to protect “those persons who are, at least in the eyes of the law, incompetent to handle the effects of alcohol.” Congini, supra 504 Pa. at 161, 470 A.2d at 517. We do not take issue with appellant’s argument it is the public policy of this state to eliminate access to alcohol by persons under the age of 21. We do, however, disagree with what appellant believes is the natural consequence of this policy; which is the imposition of social host liability on persons 18 years or older because under Pa.R.C.P. 76, Definitions, such persons are defined as adults and are subject to criminal prosecution for furnishing alcohol under the Crimes Code. Pa.R.C.P. 76; 18 Pa.C.S. § 6308. What appellant fails to include in his argument, however, is the fact Rule 76 states the definitions listed are applicable unless the context of the law indicates otherwise or the particular word is expressly defined in the specific chapter.

The legal drinking age in Pennsylvania is 21 years of age, and pursuant to the Crimes Code a person under 21 commits a summary offense if he attempts to purchase, purchases, consumes or possesses alcohol. 18 Pa.C.S. § 6308. When interpreting and applying this section of the Code, the Pennsylvania Courts have steadfastly maintained those persons under 21 years of age are minors and incompetent to handle the effects of liquor. Congini, supra; 18 Pa.C.S. § 6308. We disagree with appellant’s contention appellees are adults, as defined by Rule 76, and, therefore, can be found criminally liable under section 6308.

Appellant’s argument favoring a singular absolute age (herein age 18), defining when one reaches majority is not novel. To the contrary it is reminiscent of an argument voiced by all men between 18 and 21 years of age who live in a state where the legal drinking age is 21: If I can die for my country, why can’t I drink. Likewise, what divine wisdom is imparted to a teenager on his 16th birthday, which he didn’t have 24 hours earlier, which makes him capable of driving an automobile? The fact of the matter is there is no magic moment in any person’s life when he or she becomes omnipotent or, at the least, an expert in whatever activity he chooses to pursue. For this reason the legislature, in its wisdom, when promulgating laws assigning an age restriction on an activity, whether it be drinking, driving or voting, has taken into consideration a multitude of factors before imposing a “legal age.” In the matter before us we are concerned with at what crossroads in the average person’s life he reaches the point he becomes an adult and must be responsible for his actions with regard to providing and/or consuming alcohol. Our legislature has decided that level of maturity and accompanying degree of responsibility are achieved at age 21 and we find no compelling reason to lower that age. In the context of legislation related to underage drinking, the legislature has carved out an exception as to persons under 21 years of age, despite the fact that voting age, age for marriage and age for entering into contracts, has been set at 18, primarily due to the turbulence and guilt arising from sending 18-year old persons to war during the Vietnam era. Variable standards for determining age of capacity are not new to commonlaw or statutory law in Pennsylvania or elsewhere. At commonlaw in Pennsylvania, a female was competent to marry at the age of 12, whereas a male reached capacity at 14. 23 Pa.C.S. § 1103 Commonlaw marriage. See In Interest of Miller, 301 Pa.Super. 511, 448 A.2d 25 (1982). As a result of the fervor created by Miller (in which a female 14 years of age married her 36-year old teacher despite orders of court enjoining the relationship), the legislation provided for annulment, of commonlaw marriages by a party under 18 through a declaratory judgment proceeding by the minor’s parent or guardian. See 23 Pa.C.S. § 3303(b) Annulment void and voidable marriages.

Similarly, with statutory rape, the legislature has varied the age of minority-majority of both victim and offender to relate to the realities of the times. In 1976, the Crimes Code was amended to increase the age of the offenders from 16 to 18 years of age and reduce the age of the victim from 16 years to H years of age.

A person who is 18 years of age or older commits statutory rape, a felony of the second degree, when he engages in sexual intercourse with another person not his spouse who is less than 14 years of age. 1972 Dec. 6, P.L. 1482, No. 334 § 1, as amended 1976, May 18, P.L. 120, No. 53 § 1.

18 Pa.C.S. § 3122 Statutory rape. These and other provisions dealing with minors and adults have been dealt with frequently by the legislature so it is not possible to apply the simplistic three-step test as to competence of minors adopted by the Third Circuit Court of Appeals to determine the legislative intent under the social host legislation. Accordingly, appellant’s argument to lower the age of majority to 18 for purpose of imposing social host liability must fail.

Appellant’s argument is also flawed in that he attempts to treat similarly situated parties in two completely opposite manners. Appellant demands he enjoy the classification of a minor for the purpose of being furnished alcohol, yet argues the court must find the alleged suppliers of the alcohol to be adults despite the fact they too were under 21 at the time of the incident. This reasoning is illogical as well as fatal because, as pointed out by the trial court, if the appellees are found to be adults, the appellant would also be considered an adult and would be without a cause of action against his alleged social hosts. See Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983).

We find no basis on which to extend social host liability to persons under the age of 21 who are, in the eyes of the law, incompetent to handle the effects of alcohol. We hold, therefore, for the purpose of imposing social host liability, an individual is a minor until he reaches 21 years of age. Having so found, it is not necessary for this Court to address the issue of whether appellees, as minor tenants of the premises where appellant allegedly consumed alcohol, must be held liable for appellant’s injuries.

Based on the foregoing reasons of law and fact we agree with the trial court’s finding all persons under age 21 are incompetent in matters involving alcohol and, in keeping with the Supreme Court’s holding in Congini, a minor owes no duty to another minor for the furnishing of alcoholic beverages. Wherefore, we affirm the September 10, 1990 and January 29, 1991 Orders granting summary judgment in favor of the minor appellees.

We turn our attention now to appellant’s arguments directed to the adult landowner/appellees while keeping in mind the standard of review for appeals from Orders granting summary judgment. We first address the issue whether a subsequent trial judge, herein Judge David S. Cercone, is bound by another Common Pleas Court judge’s decision denying summary judgment in favor of a similarly situated landlord/property owner who had allegedly leased his premises to unnamed minor appellees. Appellant relies on Yudacufski v. Commonwealth of Pennsylvania Department of Transportation, 499 Pa. 605, 454 A.2d 923 (1982), for the proposition that absent compelling circumstances, a judge should follow the decision of a colleague on the same court when his decision is based on the same set of facts.

Yudacufski is procedurally distinguishable from the case before us. Yudacufski appealed from an Order denying his motion for a change of venue arguing only two weeks prior another Common Pleas Court judge had granted that request in a similar case which also involved the condemnation of property for construction of Interstate 81. The key distinction between Yudacufski and the present case, which prevents our finding Judge Cercone erred by granting summary judgment, is while in Yudacufski the appellant and the Superior Court had “President Judge Curran’s well-reasoned Seltzer opinion” upon which to rely, here Judge Louik did not pen an opinion addressing his reason for denying Miles’ motion and any conclusions as to his reasoning for denying summary judgment would be mere speculation on our part. Yudacufski, supra at 610, 454 A.2d at 925. Yudacufski is also factually distinguishable. While Yudacufski sued only one party, here we have multiple defendants and because appellant visited premises owned by the Martins, Aldila Enterprises and Miles, unique factual scenarios existed at all three premises precluding a blanket denial of summary judgment with regard to all property owner appellees.

Without being privy to the particular facts upon which Judge Louik’s Order was based, this Court cannot arbitrarily apply the Louik decision to the case now before us. In rendering his decision denying summary judgment, Judge Louik was bound by the same standard as Judge Cercone and, absent evidence to the contrary, we assume Judge Louik’s decision was sound and this Court will not speculate as to the basis for his decision. Therefore, we find appellant’s argument suggesting Judge Louik’s decision precluded Judge Cercone’s decision granting summary judgment devoid of merit.

We move now to appellant’s argument summary judgment was inappropriate based on the evidence presented in the pleadings. Appellant contends social host liability should exist for persons, such as the adult appellees, who owned the premises on which alcohol was provided to persons under the age of 21. Our Supreme Court has stated, in the context of a social host, liability cannot attach absent a showing an individual knowingly furnished alcohol to a minor. Alumni Association v. Sullivan, 524 Pa. 356, 572 A.2d 1209 (1990). The “knowingly furnished” standard requires actual knowledge on the part of the social host as opposed to imputed knowledge imposed as a result of the relationship between the parties. Id., 524 Pa. at 364, 572 A.2d at 1212. Judge Cercone relied on Sullivan when he granted summary judgment, finding there was no evidence appellees either knowingly provided alcohol to the minor appellant or were aware underage drinking parties were being held at the apartments they owned. (Slip Op., Cercone, J., 10/17/91, p. 2.) Appellant argues the Martins had actual knowledge of the parties because their lease allegedly gave them the right to terminate if the premises were being used for “keg parties.” Because the Martins failed to police the premises on a nightly basis, keeping an ever vigilant eye for beer parties, appellant contends appellees were negligent for failing to exercise control over the premises. Similarly, appellant contends Aldrich and Kifer negligently failed to “prevent their premises from being the scene of numerous alcoholic parties attended by more than 100 persons, many of them minors.” (Appellant’s brief at p. 12.)

The fact the Martins, landlords in a college town, included in their lease a clause wherein they could terminate the lease should they discover the premises were being used for beer parties is not unusual nor is it proof they had actual knowledge such activity was occurring. There is no Pennsylvania law which makes it incumbent upon landlords to police the activities, legal or otherwise, of their tenants. No evidence was presented the adult appellees were present on the premises the evening appellant willingly imbibed at parties hosted by the tenants. They did not plan the events nor were they involved in the supplying or purchasing of the alcohol served. The fact the parties appellant allegedly attended were held on property owned by the adult appellees is of no consequence considering their obvious detachment from the events leading to appellant’s tragic accident. We will impose no duty for what appellant argues appellees should have known. Because we agree with the trial court there is no genuine issue of material fact and adult appellants are entitled to judgment as a matter of law, we affirm the trial court’s grant of summary judgment in favor of the Martins and Kifer and Aldrich, t/d/b/a Aldila Enterprises.

As to Mr. Galeza, who was a co-tenant with the minor defendants in this case, while he does not escape liability on the theory addressed above, we agree with the trial court that summary judgment was properly granted as to him because the record fails to disclose any manner in which he participated or contributed to this “hospitable environment” upon which his liability could be assessed. Our careful review of the record on appeal likewise fails to establish the requisite connection necessary to present a factual issue before a jury. The complaint and affidavits merely allege the social host doctrine and the fact Galeza was a tenant with the other minor tenants. This is insufficient to establish his negligence under the accomplice theory announced in Congini, supra. The effect of Congini was to impose a per se rule of civil liability on adults who serve a minor for subsequent injuries suffered by the minor or third persons he injured as a result of his intoxication. Merely being a tenant, without evidence that Galeza participated in organizing the party, serving the beer or in some other fashion violating the criminal laws of Pennsylvania in relation to this activity, is insufficient to establish a civil cause of action, even under the liberal holdings of Fassett, supra which we have rejected.

Based on the foregoing we affirm the Orders of September 10, 1990, January 29, 1991, September 3, 1991 and September 4, 1991 granting summary judgment in favor of all appellees.

Orders affirmed.

BECK, J., dissents.

BECK, Judge,

dissenting:

The majority finds that a person who himself is under the legal drinking age cannot be civilly liable to another underage person for furnishing him with intoxicants. I believe that this conclusion conflicts with logic, public policy and prior case law. Therefore, I dissent.

The majority bases its erroneous conclusion on the assumption that, because the legislature has fixed the legal drinking age at twenty-one, a person under twenty-one years of age is not “responsible for his actions with regard to providing and/or consuming alcohol.” Majority opinion at page 989-90. This overbroad statement fails to take heed of the fundamental concept that, under the law, an individual can be a “responsible” adult for some purposes but not others. This general principle is particularly applicable in the area of liquor consumption and liability. In fact, far from immunizing an underage drinker from responsibility for his actions vis-a-vis intoxicants, the legislature subjects a “minor” to criminal sanctions for knowingly purchasing, consuming or possessing alcohol. This imposition of responsibility is entirely consistent with the overall public policy of the underage drinking laws, i.e., to restrict underage access to intoxicants in order to protect minors and the rest of the population from the destructive, often fatal, combination of youth and alcohol. In my view, the majority’s opinion undermines the legislature’s policy goal of keeping intoxicants out of the hands of those deemed by lawmakers to be peculiarly incapable of handling their effects.

The law regarding social host liability was substantially changed in 1983 with the landmark decision of Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983). Decided along with Congini was Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983), a companion case with a similar but ultimately critically different issue. In Klein, the supreme court was called upon to resolve the issue of the liability of a gratuitous server of intoxicants to an adult guest. The supreme court declined to impose social host liability in that situation, relying on the common law rule that the proximate cause of the harm caused by the intoxicated adult was the adult’s consumption of alcohol, not the furnishing of it.

The same day in Congini, however, the supreme court recognized a cause of action against social hosts who supply intoxicants to a minor guest. Mark Congini was an eighteen year old employee of the defendánt, Portersville Valve Co. Portersville sponsored a party which Congini attended and at which he was served alcoholic beverages. After becoming intoxicated, Congini got his car keys from a company employee and started to drive home. On his way home, Congini was involved in an accident which left him totally and permanently disabled. The trial court dismissed Congini’s complaint against Portersville, concluding that it failed to state a cause of action. The superior court affirmed and the supreme court reversed.

The supreme court acknowledged the similarity of the issue in Congini to that raised in Klein, but noted that the critically distinguishing feature was that the guest in Congini was a minor. The supreme court reasoned as follows. The legislature has made a “legislative judgment that persons under twenty-one years of age are incompetent to handle alcohol.” This legislative judgment is manifested in the section of the crimes code which makes it a summary criminal offense for an underage person to purchase, consume or possess alcoholic beverages 18 Pa.C.S. § 6308. It is significant to note that another section of the code penalizes as an accomplice other persons for furnishing alcohol to a minor. 18 Pa.C.S. § 306. See: Jefferis v. Commonwealth, 371 Pa.Super. 12, 17, 537 A.2d 355, 358 (1988).

The Congini court opined that underlying these criminal provisions is the “obvious legislative decision to protect both minors and the public at large from the perceived deleterious effects of serving alcohol to persons under twenty-one years of age.” Congini, 504 Pa. at 162, 470 A.2d at 518. The supreme court applied Section 286 of the Restatement (Second) of Torts which permits a legislative enactment to define the standard of care of a reasonable person and, therefore, concluded that a host is “negligent per se in serving alcohol to the point of intoxication to a person less than twenty-one years of age, and that [he] can be held liable for injuries proximately resulting from the minor’s intoxication.” Id.

The court explained that “[u]nder our analysis, an actor’s negligence exists in furnishing intoxicants to a class of persons legislatively determined to be incompetent to handle its effects. It is the person’s [the host’s] service which forms the basis of the cause of action, not whether or not a putative plaintiff is entitled to recover.” Id. (emphasis added). In other words while a social host may not be negligent in serving intoxicants to adults, Klein, the same social host may be negligent for serving intoxicants to minors. Congini. The standard of care in the latter case is derived from public policy clearly enunciated by the legislature. Furthermore in Congini, the plaintiff was the person to whom intoxicants were served as opposed to an innocent third party. The supreme court found this distinction irrelevant in the context of deciding whether a cause of action exists.

In Congini and most significantly for our discussion, the supreme court explained that a minor can be contributorily negligent for drinking intoxicants and that the minor’s negligence could be asserted as a defense by the social host. This conclusion in Congini was based on the court’s recognition that “under the scheme set up by this Court in Kuhns v. Brugger, 390 Pa. 331, 338-341, 135 A.2d 395, 401 (1957), an eighteen year old person is ‘presumptively capable of negligence.’ ... [and] that an eighteen year old is liable as an adult for the offenses which he commits, and that by knowingly consuming alcohol an eighteen year old is also guilty of a summary offense.” Congini, 504 Pa. at 163-164, 470 A.2d at 518. Thus, the Congini court explicitly held that an eighteen year old “minor” (as was the plaintiff in Congini) is presumptively capable of negligently consuming alcohol.

The majority ignores the clear import of Kuhns and Congini and finds that an eighteen year old cannot be negligent in providing alcohol. This result is illogical and erroneous and, once again, stems from the majority’s faulty premise that until a person is twenty-one he is not “responsible for his actions with regard to providing and/or consuming alcohol.” The policy of the Commonwealth is not as the majority states to shield minors from the consequences of alcohol consumption. The policy of the Commonwealth which could not be more plainly articulated is to discourage alcohol consumption by minors. Under the majority’s holding a nineteen year old who serves alcohol to a thirteen year old would not be civilly liable for the harm caused by the intoxicated thirteen-year old.

In addition the majority’s rationale fails if we examine the criminal law. The policy of the criminal law does not support the majority’s conclusion that until a person is twenty-one he is not “responsible for his actions with regard to providing and/or consuming alcohol.” Under the criminal law a person under twenty-one but over eighteen is criminally answerable for his actions in consuming, 18 Pa. S.C. 6308, and/or furnishing alcohol, 18 Pa.S.C. 306, and is held accountable, as an adult, for both actions.

Therefore, I find particularly inexplicable and disturbing the majority’s reasoning on page 5 regarding the criminal liability of underage drinkers and those who would facilitate their crime by furnishing them with intoxicants. The majority states:

The legal drinking age in Pennsylvania is 21 years of age, and pursuant to the Crimes Code a person under 21 commits a summary offense if he attempts to purchase, purchases, consumes or possesses. 18 Pa.C.S. § 6308. When interpreting and applying this section of the Code, the Pennsylvania Courts have steadfastly maintained those persons under 21 years of age are minors and incompetent to handle the effects of liquor. Congini, supra; 18 Pa.C.S. § 6308. We disagree with appellant’s contention appellees are adults, as defined by Rule 76, and, therefore, can be found criminally liable under section 6308.

Majority opinion at page 377 (emphasis added).

Whose criminal liability does the majority dispute in the above-quoted passage? There is no support for immunizing the under twenty-one year old server. Clearly, the person over eighteen serving alcohol to a person under twenty-one could be criminally responsible as an accomplice. 18 Pa. S.C. 306. It is inconceivable that the legislature would make the accomplice statute applicable to all persons over eighteen for all crimes and except the person serving alcohol to minors. In the instant case, appellees are alleged to have intentionally provided appellant with intoxicants, thereby promoting or facilitating the consumption of alcohol by an underage drinker as his accomplices. The majority appears to conclude that appellees cannot be prosecuted as accomplices because, as “minors”, they are incompetent to handle the effects of alcohol. Since the legislature made it a crime for eighteen to twenty-one year olds to consume liquor, it is incomprehensible that they would grant immunity from criminal liability to those persons of the same age who furnish the intoxicants and act to promote or facilitate the crime.

The majority’s error, in my view, lies in its failure to reconcile the fact that while the legislature’s policy is to discourage drinking in persons under twenty-one, the legislature intended to implement this goal by imposing criminal liability on all responsible adults, aged eighteen and older, for providing intoxicants to underage drinkers. Under the majority’s holding our hypothetical nineteen-year old who served intoxicants to a thirteen-year old would not be responsible either criminally or civilly. The majority’s holding defeats the underlying purpose of the criminal statutes which is to discourage drinking by persons under twenty-one.

The legislature, in an apparent effort to emphasize the seriousness of serving intoxicants to minors, enacted 6310.1 of the Crimes Code in 1988. The legislature has made it a separate criminal act knowingly to sell or furnish a underage person with alcoholic beverages. By making it a separate crime the legislature articulated the policy that it was insufficient to base criminal liability on accomplice theory alone. Specifically, section 6310.1 provides:

§ 6310.1. Selling or furnishing liquor or malt or brewed beverages to minors
(a) Offense defined. — Except as provided in subsection
(b) , a person commits a misdemeanor of the third degree if he intentionally and knowingly sells or intentionally and knowingly furnishes, or purchases with the intent to sell or furnish, any liquor or malt or brewed beverages to a person who is less than 21 years of age.

18 Pa.C.S. § 6310.1 (Purdon 1991).

It seems obvious that section 6310.1 was enacted to further the strong legislative goal of keeping intoxicants out of the hands of underage persons. Under the accomplice statute the individual serving intoxicants to a minor could only be guilty of a summary offense. See Jefferis v. Commonwealth, 371 Pa.Super. 12, 17, 537 A.2d 355, 358 (1988) (“[T]he prohibited act is the consumption of alcohol by a minor. Accomplice liability attaches to those actors who furnish the alcohol to the minor, or promote that end.”). Now under the newly enacted section 6310.1, an individual supplying intoxicants to underage drinkers commits a misdemeanor in the third degree. Using the majority’s logic, section 6310.1 would not apply to persons between the ages of eighteen and twenty-one, even though the statute’s plain language makes it applicable to all “persons”. Had the legislature intended the majority’s result it could easily have provided for it by prohibiting only a person over the age of twenty-one from furnishing alcohol to persons under the age of twenty-one. It is clear to me that by omitting an age limitation for the server of alcoholic beverages, the legislature evidenced its unmistakable intent to prohibit all “adults”, i.e. all those over eighteen years of age, from facilitating drinking by those under twenty-one, even if the drinkers happen to be their peers.

I also part from the majority when it states that its holding is in keeping with the holding in Congini. I disagree. Congini involved a social host who was over the legal drinking age. However, I find nothing in the reasoning of Congini or in any case which has followed it, which indicates that only those social hosts above the legal drinking age are potentially liable for serving intoxicants to minors. The issue of a minor social host’s liability is not discussed in Congini nor in any other binding Pennsylvania court decision of which I am aware. However, I believe as I have indicated, that the only logical, consistent conclusion to be drawn from the principles guiding Congini is that an action alleging a minor host’s negligence may be maintained. In fact, Congini held that a minor is presumptively capable of negligence and can be found to have been contributorily negligent for consuming intoxicants. The majority does not address the inconsistency of permitting an eighteen year old to be capable of negligence as the putative plaintiff in “matters involving alcohol” but precluding another eighteen year old from being held to same standard in supplying alcohol. In my opinion, this inconsistency cannot be explained and it exposes the fundamental fallacy of the majority’s approach.

It cannot be gainsaid that the policy which underlies the underage drinking laws is to minimize and discourage access to and use of intoxicants among young people. One need look no farther than the instant case to appreciate the seriousness of the problem which this legislative policy attempts to ameliorate. Certainly, it is a disservice to the goals of this policy to exempt from responsibility the very class of persons most likely to be in a position negligently to furnish underage persons with alcohol, i.e. the entire peer group. Adults between the ages of eighteen and twenty-one are expected to conform their conduct to the requirements of law. If they fail to do so, they, as adults, are held accountable accordingly. Would the majority allow a twenty year old charged with drunk driving to argue that he should be exempt from prosecution because he is “in the eyes of the law, incompetent to handle the effects of alcohol”? Obviously, such an argument is preposterous, yet it is the logical consequence of the majority’s reasoning. Adults under twenty-one are required by law to refrain from consuming alcohol and if they do not abide by this law, can be held both criminally liable and contributorily negligent for the harm which results. Likewise, the same adults are required by law to refrain from knowingly supplying alcohol to persons under the legal drinking age. If they choose to do so anyway, they have broken the law. Having intentionally breached this duty, imposed by law, they should be civilly liable to those who can be shown to have been injured by the breach.

Based on the foregoing, I would reverse the trial court’s order which entered summary judgment in favor of the defendants on the grounds that because they were also under twenty-one, they could not be liable to plaintiff for furnishing him with alcohol. On the other hand, I would affirm that portion of the trial court’s summary judgment order which granted summary judgment to appellees Galeza, Black, Flinchbaugh and Pasko on the grounds that they were concededly absent from the premises when the intoxicants were being served to appellant. It is undisputed that at the time of the alleged alcohol consumption by appellant, these four individuals were absent from their leased premises and had no particularized knowledge who, if anyone, would be entertained at their apartment and whether he or she would consume alcohol. Although it is not necessary to prove that a defendant actually handed a drink to the minor in order to find potential social host liability, nevertheless, the alleged social host must have “knowingly furnished” the alcoholic beverages. This standard requires more than the imputed knowledge which appellant would have us adopt for the absent parties in the instant case. See Alumni Association v. Sullivan, 524 Pa. 356, 364, 572 A.2d 1209, 1212 (1990).

      . These appeals were consolidated for our review by Orders dated September 10, 1991 and February 3, 1992.

      . Defendants Brian Reese and Robert McCarthy were also tenants of the Martins but are not party to this appeal.

      . As appellees Aldrich and Kifer noted in their brief, this argument is arguably waived for appellant’s failure to file a statement of matters complained of on appeal in accord with Pa.R.A.P. 1925(b) and as ordered by Judge Cercone on September 27, 1991. However, we will not penalize appellant for counsel’s failure to comply with the court Order.

      . Except as otherwise noted, I use minor in this opinion as synonymous with a person under the legal drinking age.

      . Section 6308 provides in pertinent part:
      § 6308. Purchase, consumption, possession or transportation of liquor or malt or brewed beverages (a) Offense defined. — A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages____
      18 Pa.C.S. § 6308.

      . Section 306 provides in relevant part:
      § 306. Liability for conduct of another; complicity (c) Accomplice defined. — A person is an accomplice of another person in the commission of an offense if: (1) with the intent of promoting or facilitating the commission of the offense, he:
      (i) solicits such other person to commit it; or
      (ii) aids or agrees or attempts to aid such person in planning or committing it____
      18 Pa.C.S. § 306(c).

      . Section 286 of the Restatement (Second) of Torts provides:
      § 286. When Standard of Conduct Defined by Legislation or Regulation Will be Adopted
      The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
      (a) to protect a class of persons which includes the one whose interest is invaded, and
      (b) to protect the particular interest which is invaded, and
      (c) to protect that interest against the kind of harm which has resulted, and
      (d) to protect that interest against the particular hazard from which the harm results.

      . Specifically, the standards developed in Kuhns v. Brugger put minors in three categories regarding their capacity to act negligently:

        [MJinors under the age of seven years are conclusively presumed incapable of negligence; minors over the age of fourteen years are presumptively capable of negligence, the burden being on such minors to prove their incapacity; minors between the ages of seven and fourteen years are presumed incapable of negligence, but such presumption is rebuttable and grows weaker with each year until the fourteenth year is reached.

        Kuhns v. Brugger, 390 Pa. 331, 340, 135 A.2d 395, 401 (1957).

      . The exception provided for in subsection (b) is for the traditional and reasonable use of alcoholic beverages in religious ceremonies and rituals.

      . In fact, the majority’s own example of the statutory rape statute which specifies the ages of both the victim and the offender is an apt example of the manner in which the legislature can provide that an offender’s guilt is dependent on being above a particular age if it so chooses.

      . As the majority notes, the United States Court of Appeals for the Third Circuit, in attempting to apply Pennsylvania law in a case before it, found that Congini "does apply to those circumstances in which minors serve alcohol to minors”. Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150, 1160 (3rd Cir.1986) (emphasis in original). See also Macleary v. Hines, 817 F.2d 1081 (3rd Cir.1987). In Fassett the Court of Appeals relied heavily on the reasoning of the district court and found that, "the .Congini court cites with approval the standards for negligence it adopted in Kuhns v. Brugger [see footnote 5]---- We are confident, as wets the district court, that Pennsylvania would use the Kuhns v. Brugger standards and find that the minor defendants in this case, all of whom were above fourteen years of age at the time of the party, were presumptively capable of negligence, and therefore were potentially liable as social hosts.” 807 F.2d at 1159 (citation omitted).

      . In Barrie v. Liquor Control Board, 137 Pa.Cmwlth. 514, 586 A.2d 1017 (1991), the Commonwealth Court decided a case in which the plaintiff, the estate of an underage drinker, filed a wrongful death and survival action against, among others, another “minor” who was allegedly negligent for supplying alcohol to the deceased. The jury in that case found the supplier of alcohol 20% causally negligent and the deceased 70% “contributorily” negligent in causing his own death because he had consumed alcohol in violation of the Crimes Code. None of the parties raised the instant issue, nor did the Commonwealth Court intimate that no cause of action could lie against the supplier because he, too, was underage. It apparently assumed, correctly in my view, that Congini was applicable both to determine the social host’s liability and to determine the minor’s contributory negligence.

      . In State v. Haarde, 230 N.J.Super. 605, 554 A.2d 872 (1989), an underage defendant contended that the New Jersey statute which, like our Crimes Code, prohibits the furnishing of alcohol to minors was intended to apply only to persons 21 and older who serve minors with alcohol. The court in Haarde rejected this contention which it said "would frustrate th[e] legislative intent by permitting 'adults’ 18 to 21 years of age to serve underage persons with impunity". 230 N.J.Super. at 608, 554 A.2d at 874.