author: ROWLEY, President Judge:

text:
    619 A.2d 365
    Sharen R. BELL and Wilbert L. Bell, Husband and Wife, Appellants, v. John R. IRACE and Elizabeth D. Reis.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1992.
    Filed Jan. 21, 1993.

      Jean Best, New Castle, for appellants.
    Dara A. DeCourcy, Pittsburgh, for Reis, appellee.
    Robyn R. Gallitto, Ellwood City, for Irace, appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, McEWEN, DEL SOLE, BECK, TAMILIA, KELLY, POPOVICH and FORD ELLIOTT, JJ.
   ROWLEY, President Judge:

Appellants, Sharen and Wilbert Bell, appeal from the trial court’s order sustaining preliminary objections in the nature of a demurrer filed by Appellees, John Irace and Elizabeth Reis. The Bells sued Irace and Reis for negligence, but pursuant to the preliminary objections, the trial court dismissed the suit based on Appellants’ failure to allege sufficient facts in their complaint to establish proximate causation between Appellants’ injuries and the alleged negligence of the Appellees. We affirm the trial court’s order dismissing Appellants’ complaint.

Appellants advance two arguments to persuade us that they have alleged sufficient facts to establish proximate causation. First, they argue that ordinary negligence principles pertaining to proximate causation are satisfied in this case. Second, they contend that even if we find, as a matter of law, that proximate causation is not satisfied in this manner, the “rescue doctrine” is applicable as an alternative means of satisfying the proximate causation requirement. We will review Appellants arguments, keeping in mind that the essential issue to be decided is whether the averments contained in Appellants’ complaint are sufficient to invoke principles of substantive law which would entitle Appellants to relief.

Appellate review requires us to accept as true all the material facts set forth in Appellants’ complaint “and all reasonable inferences deducible from those facts.... [W]e then determine whether [Appellants have] failed to state a claim for which relief may be granted,” with all doubts resolved in favor of the pleader. Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 405, 565 A.2d 1170, 1172 (1989) (footnote and citations omitted). If we are certain that no recovery is possible, we will affirm the grant of the demurrer. Id.

The factual events, as set forth in Appellants’ complaint, progressed as follows: Appellee Reis was crossing an intersection on foot when she was struck by a vehicle driven by Appellee Irace. Both Appellees were allegedly negligent in causing the collision between them. Appellant Sharen Bell was working as an emergency medical technician (EMT) and was called to the accident scene. Bell administered aid to Appellee Reis who was reacting to her own injuries. Through her reactions, Reis severely injured Sharen Bell’s arm, wrist, and hand. Mrs. Bell sued both Irace and Reis to recover for her injuries. Wilbert Bell, the husband of Sharen Bell, sued Appellees for a loss of consortium.

Appellants first contend that they have alleged sufficient facts to warrant a finding of proximate cause through the application of ordinary principles of negligence. We disagree. An application of the definition of proximate cause to the alleged facts reveals that Appellants’ complaint does not satisfy the proximate causation requirement which would create a question of fact for the jury.

Unlike causation in fact, with which proximate causation is “often hopelessly confused,” proximate causation “is primarily a problem of law.” W.P. Keeton, Prosser and Keeton on Torts (5th ed.1984) at 273. The question depends “essentially on whether the policy of the law will extend the responsibility for the [negligent] conduct to the consequences which have in fact occurred.... The term ‘proximate cause’ is applied by the courts to those more or less undefined considerations which limit liability even where the fact of causation is clearly established.” Id.

Many theories of “proximate,” or “legal,” cause have been advanced and applied to numerous and diverse types of cases. Id. Abiding by the principle stated in the Second Restatement of Torts, it is a Pennsylvania court’s responsibility to evaluate the alleged facts and refuse to find an actor’s conduct the legal cause of harm when” ’ it appears to the court highly extraordinary that [the actor’s conduct] should have brought about the harm.’ ” White v. Rosenberry, 441 Pa. 34, 38-39, 271 A.2d 341, 343 (1970) (quoting Restatement of Torts, now found at § 435(2), p. 449, 1965), (emphasis supplied). At the point in the causal chain when the consequence of the negligent act is no longer reasonably foreseeable, “the passage of time and the span of distance mandate a cut-off point for liability.” Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 273, 516 A.2d 672, 676 (1986) (defining the reasonable foreseeability test).

Having carefully reviewed the alleged facts in light of these principles of proximate causation, we conclude that the law was correctly discussed and the issue was correctly decided by the learned trial judge, who explained:

At some juncture, which cannot be defined in unequivocal terms, the links which bind together the causal chain connecting conduct to injury must be severed because of [remoteness]. Fundamentally, the generic theory of cause and effect can be traced philosophically to a wide variety of factual situations. As a consequence, because of the need to reasonably limit the impact of a negligent act, the law recognizes that there must be a reasonably close causal connection between conduct and the resulting injury. The standard used to apply the test is termed proximate cause which is the measure applicable to those nebulous situations which limit liability even where the fact of causation can be somehow demonstrated.... Consequently, a point is reached where the legal chain of causation corrodes and the law then refuses to further trace the series of unfolding events connecting an act to an injury. That juncture has been reached here. Neither defendant here could reasonably be expected to foresee that the fortuitous acts which served to bring them together would be the source of an injury sustained by a medical technician who would be summoned to the scene of the accident for the purpose of providing aid.

Trial Court Opinion at 5-6 (citations omitted; emphasis added); cf. McPeake v. Cannon, 381 Pa.Super. 227, 233, 553 A.2d 439, 442 (1989) (no duty to prevent harm that is not a reasonably foreseeable result of prior negligent conduct); Zanine v. Gallagher, 345 Pa.Super. 119, 123, 497 A.2d 1332, 1334 (1985) (scope of duty limited to risks that are reasonably foreseeable by actor under then existing circumstances).

Appellees can be held liable only for those risks which persons in their positions could reasonably foresee. Zanine v. Gallagher, 345 Pa.Super. at 124, 497 A.2d at 1334. In Za nine, the Court observed that the defendant had created a variety of risks when he led police on a high-speed car chase. The Court held, however, that the defendant could not reasonably have foreseen that the stress of the chase would result in the suffering of a heart attack by the plaintiff/police officer. Here, as in Zanine, Appellees’ conduct, resulting in the vehicle-pedestrian accident, created a variety of risks, but the injury sustained by Appellant was not a reasonably foreseeable consequence of the negligence causing the vehicular accident.

We therefore hold that under the “factual” allegations of Appellants’ complaint, the negligence, if any, of the Appellees in causing the collision between them is not the proximate cause of the injury received by the Appellant wife. We agree with the trial court that it was highly extraordinary for Appellees’ conduct to have brought about the harm complained of, and we conclude as a matter of law that the alleged facts, together with all reasonable inferences deducible from those facts, are insufficient to warrant a finding of legal causation.

Even though we have found the element of proximate causation unmet as a matter of law, Appellants argue in the alternative that the “rescue doctrine” applies to satisfy the element for thein. In very special cases, the law has created a narrow exception to the ordinary principles of negligence which require a showing of proximate causation., In certain situations where a litigant otherwise would not recover for a failure to satisfy the proximate causation requirement, the law supplies another means to meet the requirement through the “rescue doctrine,” thereby permitting recovery.

The rescue doctrine was adopted by the Supreme Court in Corbin v. City of Philadelphia, 195 Pa. 461, 45 A. 1070 (1900), in recognition of the fact that strict enforcement of principles of contributory negligence sometimes barred the courthouse doors to persons injured during a noble effort to save another person from imminent death or bodily harm. The Court observed that the doctrine was necessary to permit recovery in a rescue situation because “[a] rescuer, one who, from the most unselfish motives, prompted by the noblest impulses that can impel man to deeds of heroism, faces deadly peril, ought not to hear from the law words of condemnation of his bravery....” Id. at 468-69, 45 A. at 1072-73.

In recent times, the defense of contributory negligence has been modified by the Comparative Negligence Act, 42 Pa.C.S. § 7102. Even so, jurisprudence has recognized a sole, surviving purpose of the doctrine as establishing a causal connection between a defendant’s original negligence and a plaintiff/rescuer’s injury where a causal connection might not otherwise exist. Pachesky v. Getz, 353 Pa.Super. 505, 519, 510 A.2d 776, 783 (1986). This link of causation is “fictive” and provides a plaintiff/rescuer with a “favored status in the eyes of the law.” Id. n. 8.

The rescue doctrine, though infrequently cited, has been applied in cases where a plaintiff is injured while “rescuing” a defendant from a perilous situation created by the defendant’s own negligence. Id. at 514, 510 A.2d at 781. “ ‘Where a defendant’s negligent act, of commission or omission, has created a condition or situation which involves urgent and imminent peril and danger, to life or property, of himself or of others, those acts of negligence are also negligence in relationship to all others who ... may attempt, successfully or otherwise, to rescue such endangered life or property, by any means reasonably appropriate’ ” and performed in the exercise of ordinary care. Id. at 516, 510 A.2d at 781 (quoting Walker Hauling Co. v. Johnson, 110 Ga.App. 620, 624, 139 S.E.2d 496, 499 (1964)).

If the rescue doctrine were applicable in favor of Appellants, it is true that they would have made out a case sufficient to withstand Appellees’ demurrer. But, because the facts as alleged in Appellants’ complaint do not support a finding that Mrs. Bell, as an EMT, undertook a “rescue” as that term has been construed, the rescue doctrine is not applicable here.

In order to constitute a “rescue,” a person must attempt to prevent another person from suffering serious injury or death. Id. at 517, 510 A.2d at 782 (quoting 57 Am.Jur.2d Negligence § 419 (1971)). In addition, the situation precipitating the “rescue” must warrant a reasonable belief that the peril facing the object of the rescue was urgent and imminent. “There can be no reasonable belief of continued peril if the rescuer has knowledge that the victim’s condition is stable, requiring only medical attention.... ” 57A Am. Jur.2d, Negligence § 1087 (1989). These principles are clear from an examination of the facts in cases where the rescue doctrine was applied.

For example, in Pachesky v. Getz, a woman noticed a man slumped motionless over the steering wheel of a car. The car was stopped in the middle of the street, its windows were up, the headlights were on, and the engine was running. The woman, believing the man was overcome by carbon monoxide, pounded on the windshield, shouted, and finally opened his car door to turn off the ignition. The woman acted in order to prevent the imminent peril of serious injury or death apparently confronting the man.

Likewise, in Corbin v. City of Philadelphia, a boy had fallen to the floor of a trench which was 28 feet deep. Strong gases present in the trench had caused sewer workmen to discontinue their work there earlier. The boy had fallen face-first and this prompted another boy to enter the trench, seeking to prevent imminent, serious injury or death to the first boy. Other examples of situations in which an individual’s actions would constitute a “rescue” include a person diving in after a child who has fallen into a stream, or a person pushing to safety a traveler who is standing between railroad tracks when surprised by an oncoming train. See also Lowrey v. Horvath, 689 S.W.2d 625 (en banc) (Mo.1985) (man climbs into well at request of neighbor who believes her husband, who is in the well, is injured or ill), superseded by statute as stated in Allison v. Sverdrup & Parcel & Assoc., 738 S.W.2d 440 (Mo.App.1987); Lave v. Neumann, 211 Neb. 97, 317 N.W.2d 779 (1982) (police officer attempts to stop an unattended semi-truck from rolling down sloped street in residential neighborhood; officer stepped on running board, but cab door opened and officer fell to ground); Padilla v. Hooks Intern, Inc., 99 N.M. 121, 654 P.2d 574 (App.1982) (“arm” to “bucket” of backhoe equipment fell, crushing man; second man blocked bucket with his hands and body to keep it from falling all the way down), cert. denied, 99 N.M. 148, 655 P.2d 160 (1982); Bell v. McMurray, 5 Wash.App. 207, 486 P.2d 1105 (1971) (following a near collision with another vehicle, man left his truck protruding 2 to 4 feet into 12-foot inside lane of freeway and ran to assist the occupants of other vehicle which was wrapped around roadside pole, virtually sheared in half, and emitting smoke; while man engaged in “rescue,” his truck was hit by a third automobile); Clayton, v. Blair, 255 Iowa 700, 123 N.W.2d 896 (1963) (court would permit inference that woman who died in apartment building fire was attempting to warn fellow inhabitants when she died).

Unlike the foregoing examples, however, the facts alleged in Appellants’ complaint, together with the reasonable inferences deducible from those facts, do not support a finding that Sharen Bell was responding to an imminent, urgent threat to Ms. Reis’ life or body. The allegations in the complaint do not indicate the severity of Ms. Reis’ injuries, whether her injuries were life-threatening, or whether Ms. Reis was conscious or in any immediate danger. Appellants’ allegation that Sharen Bell was “providing aide [sic] to Defendant REIS” (paragraph 7, Appellants’ complaint) does not suggest that Sharen Bell acted to prevent death or serious bodily harm to Ms. Reis.

Furthermore, Sharen Bell was not injured while attempting a heroic rescue of the nature contemplated by the rescue doctrine. She arrived upon the scene after the accident had occurred and was injured while providing post-accident medical care to the pedestrian/victim. The rescue doctrine does not apply where, as here, a plaintiff gave assistance after the imminent peril had ceased. Because we conclude that the rescue doctrine does not apply in this case, it is not necessary for us to decide the question raised by Appellants whether the rescue doctrine is available to “involuntary,” or professional, rescuers.

In Appellants’ brief opposing Appellees’ preliminary objections, Appellants timely requested leave to amend their complaint “[i]n the event the [trial court found] that the Defendants’ Preliminary Objections should be sustained.” Because Appellants do not specify how they would amend their complaint, it is unclear to us how the amendment would in any way overcome our conclusions. Therefore, we decline to grant Appellants leave to amend their complaint.

Because in this case ordinary principles of proximate causation are not satisfied, and alternatively, the rescue doctrine does not apply, we affirm the order sustaining the preliminary objections in the nature of a demurrer. In accordance with our scope of review, we are certain that Appellants could not possibly prevail in their case against Appellees on the facts presented.

Order sustaining preliminary objections in the nature of a demurrer affirmed.

      . Appellants’ only allegation of Appellee Reis' negligence was the manner in which Reis was crossing the street at the time of the collision. Appellants allege no subsequent acts of negligence nor intent to do harm on Reis' part. Because of this, we can consider the potential liability of both Appellee Reis and Appellee Irace simultaneously. Both Appellees’ alleged negligence occurred at the same time and therefore, we will not treat them separately here. Likewise, the result as to each will be the same.

      . Prosser and Keeton instruct that jurisdictions have adopted dozens of tests and formulas in the hope of finding a "universal solvent for all of the problems of 'proximate cause.' ”

      . Although Zanine discusses the foreseeability of risks in the context of the duty of care owed by a plaintiff, conclusions drawn relative to duty are very similar, if not identical, to those which can be drawn when considering proximate cause. Prosser and Keeton explain as follows:
      It is quite possible to state every question which arises in connection with "proximate cause” in the form of a single question: was the defendant under a duty to protect the plaintiff against the event which did in fact occur? ... “[D]uty” may serve to direct attention to the policy issues which determine the extent of the original obligation and of its continuance, rather than to the mechanical sequence of events which goes to make up causation in fact.... [WJhether the defendant stands in any such relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiff’s benefit; ... whether the interests of the plaintiff are entitled to legal protection at the defendant’s hands against the invasion which has in fact occurred; ... or whether the conduct is the "proximate cause” of the result [—] all of these questions are, in reality, one and the same.
      W.P. Keeton, Prosser and Keeton on Torts (5th ed.1984) at 274.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    619 A.2d 371
    FIRST FEDERAL SAVINGS BANK OF DELAWARE, Appellee, v. CPM ENERGY SYSTEMS CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1992.
    Filed Jan. 26, 1993.

      Anthony J. Martino, Bangor, for appellant.
    William K. Murphy, City Sol., Easton, for appellee.
    Renald S. Baratta, Easton, for Sheriffs Office of Northampton County, participating party.
    Dennis A. Deesch, Easton, for Smith Bros., participating party.
    Before McEWEN, DEL SOLE and HUDOCK, JJ.
   HUDOCK, Judge:

CPM Energy Systems Corporation (Appellant) appeals the order of the hearing court denying its petition to set aside the sheriffs sale of its personal property. For the reasons which follow, we vacate the order of the hearing court and remand for further proceedings.

The facts and procedural history are as follows: On March 1, 1991, First Federal Savings Bank of Delaware (Appellee), as a secured lien holder of machinery and equipment owned by Appellant and used in its waste processing and pellet plant, confessed judgment against Appellant. A sheriffs sale was held May 24, 1991, on the property. The public sale was conducted by the Sheriff of Northampton County at premises formerly leased by Appellant from Richard and Andrew Smith t/d/b/a the Smith Brothers (Smith Brothers), in Easton, Northampton County. The property of Appellant was sold for $10,000 to a Mr. Donald Welsh. All proceeds of the sale were paid to the Smith Brothers as priority lien holders for rent accrual.

Prior to the sheriffs sale, the Smith Brothers had petitioned the court in a separate civil proceeding to declare the personal property in question abandoned. Pursuant to this petition, the hearing court entered an order, dated April 3, 1991, which provided that the machinery and equipment were the property of Appellant. It further provided that Appellant had thirty days from the entry of the order to remove the equipment and machinery from the Smith Brothers’ property. The order set forth that upon failure to remove the equipment within the time provided, the presence of the equipment and machinery would constitute a continuing trespass subject to abatement. After thirty days, the Smith Brothers were authorized to take all steps necessary to remove the machinery and equipment, in the following order: 1) the two secured creditors (Appellee and another party, Frederick Lang) would be given the opportunity to remove the machinery and equipment at the secured creditors’ expense within thirty days; and (b) if the secured creditors did not remove the equipment and machinery within thirty days, and should there be no independent buyer, the Smith Brothers were permitted to remove the property intact or as scrap. The proceeds of any sale by the Smith Brothers for scrap or otherwise were to be used to pay, first, the costs of the removal; second, any rents that may be proven to be due to the Smith Brothers by Appellant and, third, to pay the secured creditors in the order of their priority. Appellant did not remove the equipment and machinery within the prescribed period of time as indicated in the order. Likewise, neither Appellee nor the other secured creditor chose to remove the property within thirty days of Appellant’s failure to do so. Rather, Appellee proceeded with the sheriffs sale.

Subsequent to the sheriffs sale, and on June 7, 1991, Appellant’s counsel mailed to the Prothonotary of Northampton County a “Notice of objection to conduct of sheriffs sale and request to stop ratification of sale.” This filing was received by the Prothonotary’s office on June 10, 1991, and was returned to Appellant’s counsel on June 17, 1991, as it did not conform with filing requirements. On June 26, 1991, Appellant’s counsel filed a petition to set aside the sheriffs sale of May 24, 1991. The petition asserted that the sale should be set aside due to: 1) fraud, as a result of unlawful collusion between bidders, 2) inadequate sale price, and 3) the sheriffs sale not being in conformity to the order of court dated April 3, 1991. A hearing on said petition was conducted on July 12, 1991. Respective counsel for Appellee, Appellant, the Sheriff of Northampton County, the Smith Brothers, and Frederick Lang were present at this hearing. Mr. Welsh, the purchaser of the equipment and machinery at the sheriffs sale, was not present nor was he represented by counsel. At the conclusion of the hearing, the hearing court instructed counsel to praecipe the petition onto an argument list, to notify Mr. Welsh of the petition, and to file briefs in support of the parties’ positions. The hearing court also stated that the prior mandates of the order of April 3, 1991, remained in effect as to any property not covered by the sheriffs sale and/or to any property which was bought but later abandoned by Mr. Welsh, providing a release relinquishing any rights in the remaining property was obtained by the Smith Brothers from Mr. Welsh.

Appellee filed an answer and new matter to Appellant’s petition to set aside sheriffs sale on July 19,1991. On August 16, 1991, Appellant filed its brief in support of its petition to set aside the sale. At the call of the hearing list on August 26, 1991, the case was submitted on briefs. On November 1,1991, the hearing court entered its order denying Appellant’s petition. This determination was based on the hearing court’s finding that Appellant’s filing of the petition to set aside sheriffs sale was untimely and that Appellant had not sufficiently plead any facts which would constitute fraud or collusion between the bidders at the sale. The hearing court did not address Appellant’s contention of gross inadequacy of sale price due to its finding of untimeliness. This appeal followed.

On appeal, Appellant raises the following issues for our review:

(A) Is gross inadequacy of the sale price coupled with (1) collusion between the two bidders and the auctioneer at a sheriffs sale and (2) failure by the parties conducting the sale to observe the terms of a previous order of the court in a companion case which affected the chattels sold sufficient grounds for the court to set aside the sale?
(B) Is a petition to set aside a sheriffs sale under Rule 3132, Pa.R.C.P. untimely when filed after execution and delivery by the sheriff of a bill of sale for the chattels sold, but before actual delivery of many of the chattels?
(C) Where the record is unclear as to (1) the extent to which the chattels sold at a sheriffs sale had been delivered to the purchaser and a petition to set aside the sale has been criticized as untimely and (2) whether the sale was tainted by fraud or collusion between the purchasers and the auctioneer, should the matter be remanded to the court below for a factual determination of both of these matters? (Emphasis in original.)

Appellant’s brief at pp. 1-2.

Initially, we note that a petition to set aside a sheriffs sale is based on equitable principles and is addressed to the sound discretion of the hearing court, whose decision will not be reversed on appeal unless there is a clear abuse of that discretion. Greater Pittsburgh Business Development Corp. v. Braunstein, 390 Pa.Super. 454, 456, 568 A.2d 1261, 1263 (1989), alloc. den., 527 Pa. 634, 592 A.2d 1301 (1990). See also, Marine Bank v. Huhta, 279 Pa.Super. 130, 132, 420 A.2d 1066, 1067 (1980). It is also well-established that:

[T]he burden of proving circumstances warranting the exercise of the court’s equitable powers is on the applicant, and the application to set aside a sheriffs sale may be refused because of the insufficiency of proof to support the material allegations of the application, which are generally required to be established by clear evidence.

Greater Pittsburgh Business Development Corp. v. Braunstein, supra at 458, 568 A.2d at 1263. See also, Bornman v. Gordon, 363 Pa.Super. 607, 611, 527 A.2d 109, 111 (1987), alloc. den., 517 Pa. 620, 538 A.2d 874 (1988) (appellant’s petition to set aside sheriffs sale of her personalty sold to satisfy judgment for past due rent, on basis of gross inadequacy of sale price, was denied as appellant filed to offer evidence with regard to the value of the goods sold).

Keeping these principles in mind, we will now review Appellant’s claims on appeal. Because the hearing court found the petition of Appellant to be untimely, and thus disposed of Appellant’s first issue on appeal regarding gross inadequacy of sale price, we will first address Appellant’s second issue which deals with the untimeliness of the petition.

Pa.R.C.P. 3132, 42 Pa.C.S., governs the setting aside of a sheriffs sale. Rule 3132 provides:

Upon petition of any party in interest before delivery of the personal property or of the sheriffs deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.

The hearing court found that, in the instant case, Appellant filed his petition subsequent to delivery of the machinery and equipment and, as such, the relief offered by Rule 3132 was unavailable to Appellant. The court interpreted the word “delivery” to mean constructive delivery of the property. Thus, the court stated that delivery was effectuated when the bill of sale was transferred to the purchaser from the sheriff. Conversely, Appellant argues that the term “delivery”, within the meaning of the statute, means actual delivery of the property. Appellant contends that the interpretation given to the word delivery by the hearing court would not afford a judgment debtor an opportunity to invoke the protections of the rule. We agree with Appellant.

If we were to accept the hearing court’s interpretation of Rule 3132, we would have to assume our Supreme Court intended to limit the setting aside of a sheriffs sale to a time subsequent to sale but prior to handing over the bill of sale. Accordingly, because bills of sale are normally completed and transferred to the purchaser immediately after the sale, delivery would occur contemporaneously with sale. See Greater Pittsburgh Business Development Corp., supra (this Court rejected appellant’s argument that delivery pursuant to Pa. R.C.P. 3132 occurs simultaneously with sale). Rule 3132, as thus interpreted, would not only be physically impossible to comply with but would also be absurd and violate the purchaser’s right to due process. We cannot conclude that our Supreme Court intended such a result.

In ascertaining the intention of our Supreme Court in the promulgation of a rule, we are guided by Pa.R.C.P. 128, 42 Pa.C.S., which provides in relevant part:

(a) That the Supreme Court does not intend a result that is absurd, impossible of execution or unreasonable; ...
(c) That the Supreme Court does not intend to violate the Constitution of the United States or of this Commonwealth;

See also, Reichert v. TRW, Inc. Cutting Tools Division, 385 Pa.Super. 416, 428, 561 A.2d 745, 752 (1989), alloc. granted, 525 Pa. 664, 583 A.2d 794 (1990) (“in promulgating rules, supreme court does not intend a result that is absurd, impossible of execution, or unreasonable”). Because it would be inappropriate for this Court to find a rule promulgated by our Supreme Court to be infirm, Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 488-491, 568 A.2d 1272, 1279-80 (1990), alloc. den., 528 Pa. 610, 596 A.2d 157 (1991), we find that “delivery” of personal property within the context of Pa.R.C.P. 3132 means actual delivery consisting of giving real possession of the property to the purchaser.

Having determined that delivery with regard to personal property is actual delivery, we must next decide if Appellant’s petition was filed before Mr. Welsh, the purchaser, collected his property. At the hearing held July 19, 1991, the attorneys for the respective parties explained, on the record, that the equipment and machinery were sold in bulk to Mr. Welsh. It was also stated that Mr. Welsh had removed the pieces of the property he wanted and had left the discarded parts on the premises. Appellant claims that, because a portion of the equipment and machinery sold remained on the premises subsequent to the filing of his petition to set aside sheriffs sale, his petition is timely. We disagree.

If, in fact, Mr. Welsh purchased the property in bulk, removed only the pieces that he wanted, then left the remainder of the machinery and equipment on the premises and relinquished all rights in the remains, we would find such action to be consistent with delivery of all of the property; the property remaining would be considered abandoned. Nevertheless, we are unable to find that Appellant’s petition is untimely, as it is unclear from the record whether Appellant’s petition was filed before Mr. Welsh had collected the pieces of equipment and machinery which he wanted from the sale, and whether Mr. Welsh, in fact, abandoned the property remaining on the premises. Accordingly, we vacate and remand the matter for a factual determination as to: (1) the extent the property sold at the sale had actually been delivered to Mr. Welsh before Appellant’s petition was filed; and, (2) whether Mr. Welsh had relinquished his rights to the property remaining on the premises.

With regard to the issues of fraud and inadequate sale price, if the hearing court on remand once again determines that' the petition is untimely filed, then it need not address either of these two arguments. However, if on remand the hearing court finds the petition to be timely, it need only address Appellant’s assertion of inadequate sale price, as it has already disposed of Appellant’s claim of fraud as a result of collusion.

Because the hearing court addressed Appellant’s claim of fraud, we will likewise. Appellant contends that the following fact scenario constitutes fraud: At the opening of the auction, Bidder # 1 advised the sheriffs auctioneer that he was not interested in bidding on the entire plant, only specific components. Bidder # 2 (Mr. Welsh) made the same comment. The auctioneer then asked counsel for Appellee if he would consider changing the auction from lot to piece. Counsel for Appellee did not approve. The auctioneer then suggested to Bidder # 1 and # 2 to consult with each other on a joint bid. Bidder # 1 and # 2 left the room at approximately 10:05 a.m. At approximately 10:15 a.m., the bidders returned to the auction room and the auctioneer began the auction. Counsel for Appellee opened the bidding at $176.43. Bidder # 1 bid $1,000 for the lot; Bidder # 2 then bid $10,000 for the lot. The property was sold to Bidder # 2 for $10,000. The auction concluded at approximately 10:20 a.m. Appellant claims collusion between the bidders resulted in an inadequate sale price.

The hearing court found that forbearance by one bidder to the advantage of another does not per se work an unlawful disadvantage to the execution debtor. Thus, the proof offered by Appellant was insufficient to establish a clear case of fraud. We agree.

Although the general policy of the courts has been to discountenance combinations or agreements on the part of bidders at execution sales, the object and effect of which are to stifle competition, and the courts will deny to any party to such agreement or combination any benefit from the sale and set it aside upon proper motion, unless all parties concerned know the arrangement and assent thereto,

Fenton v. Joki, 294 Pa. 309, 314, 144 A. 136, 138 (1928), we do not find the facts necessary for such a conclusion in the instant case. In the record there is no direct evidence of an agreement between Bidder # 1 and Bidder # 2 to stifle the bidding competition, nor is there any evidence that Bidder # 1 profited in any way from refraining from bidding further. Accordingly, we find no error in the trial court’s assessment of this issue.

Appellant’s final contention deals with the April 3, 1991, order issued in the action commenced by the Smith Brothers against Appellant. Appellant vaguely asserts that the court erred in disregarding the set procedure, of distribution as set forth in the order by not setting aside the sheriffs sale. We, however, will not reach the merits of this issue as Appellant has failed to adequately develop any arguments in support of this claim. “When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, we shall not consider the merits thereof.” Ferko v. Spisak, 373 Pa.Super. 303, 311, 541 A.2d 327, 331 (1988), affirmed 522 Pa. 503, 564 A.2d 157 (1989).

Order vacated and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . The notice of objection was returned to Appellant’s counsel specifying that notice was required and none was shown.

      . We note that Appellee has failed to file a brief in this appeal.

      . The hearing court, in its opinion, relies on the cases of Herbert’s Estate, 356 Pa. 107, 51 A.2d 753 (1947) and Gross v. Simsack, 364 Pa. 337, 72 A.2d 103 (1950) for the proposition that delivery occurs when the bill of sale is handed to the purchaser. Hearing Court Opinion at p. 2. We, however, find these cases inapposite. Both cases deal with delivery of a deed for real property. Pa.R.C.P. 3132 specifically delineates that for a petition to be timely it must be filed before delivery of the deed to the purchaser. At issue in this instance is not the delivery of a deed but rather the delivery of personal property. Therefore, we find the hearing court’s reliance on these cases misplaced.

      . Gross inadequacy of price may be a reason for setting aside a sheriff’s sale. Bornman v. Gordon, supra 363 Pa.Super. at 611, 527 A.2d at 112.

      . Proof of fraud may be a sufficient ground to set aside a sheriff’s sale. Marine Bank v. Huhta, supra 279 Pa.Super. at 138, 420 A.2d at 1070.

      . Nevertheless, we note that had Appellant properly addressed this claim, we would find it meritless. The property or the proceeds from the property in question would not have reverted to Appellant under the distribution procedures of either the April 3, 1991, order or the sheriff's sale. Therefore, we fail to see how Appellant has been prejudiced by the court’s alleged non-compliance with the April 3, 1991, order.


author: BECK, Judge.

text:
    619 A.2d 376
    COLDWELL BANKER PHYLLIS RUBIN REAL ESTATE, Appellant, v. Frank D. ROMANO and Helen M. Romano, his wife.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1992.
    Filed Jan. 26, 1993.

      Wieslaw T. Niemoczynski, Stroudsburg, for appellant.
    Dennis A. Deesch, Easton, for appellees.
    Before CAVANAUGH, BECK and BROSKY, JJ.
   BECK, Judge.

The issue is whether a real estate broker is entitled to a commission when it produces a buyer for seller’s property, but the property actually is sold to a third party which held a right of first refusal. We hold that the trial court properly found that the broker was not entitled to a commission on the sale.

On May 30, 1986, appellant Coldwell Banker Phyllis Rubin Real Estate (“Coldwell Banker”) entered into an “Exclusive Right to Sell Agreement” with appellees Frank D. Romano and Helen Romano (“Romanos”) for the sale of a commercial property (“the property”) owned by the Romanos. In this first agreement, the Romanos promised to pay to Coldwell Banker a 10% commission if the property “is sold or exchanged during the term of said agency, WHETHER EFFECTED BY WHOMSOEVER INCLUDING MYSELF, THE OWNER ...” (emphasis in original). The Exclusive Right to Sell Agreement was effective from May 30, 1986 until November 30, 1986, and also included a protection period for 360 days thereafter. The listing price was $1,000,000. On the first page of the agreement, under the heading “Property Information; Lease Terms, Finance Terms, Equipment Inc., Directions, Etc.” the following handwritten statement appears: “Adjacent property has first right of refusal”.

Testimony at trial established that Coldwell Banker was aware from the start of the parties’ relationship that the adjacent property owners, Silver Line, Inc., had the “right of first refusal” or an option to purchase the Romanos’ property prior to its sale to a third party. Coldwell Banker’s agent in charge of the Romano property, Tony Sabia, testified that the handwritten statement regarding Silver Line’s right of first refusal had been inserted into the part of the agreement form reserved for exceptions to the broker’s exclusive right to sell. Mr. Romano testified that it was his understanding that, under the Exclusive Right to Sell Agreement, if Silver Line exercised its option to purchase the property, no commission would be due Coldwell Banker.

All of Coldwell Banker’s representatives testified that when a property is sold to a party who is excepted from an Exclusive Right to Sell Agreement, no commission is due. However, other than Tony Sabia, these witnesses testified that the Romano agreement contained no exceptions.

The parties renewed the terms of the Exclusive Right to Sell Agreement for an additional 6 month period, from December 30, 1986 until July 30, 1987. The listing price was increased to $1,100,000. Another renewal agreement was executed on August 25, 1987, for a 12 month period, at the asking price of $1,100,000. Testimony established that these renewals were intended to extend the terms of the original Exclusive Right to Sell Agreement.

At the same time, the parties executed another document, entitled “Exclusive Agency Listing.” This agreement’s terms differed significantly from those in the original Exclusive Right to Sell Agreement:

[Coldwell Banker], as our agent, will earn their commission only if they provide a buyer, and it is understood that ive [Romanos] reserve the right to sell the property to a buyer procured by us. In such case no commission is due [Coldwell Banker], provided a sale is not made directly or indirectly to or through the Broker’s prospect.... Any prospect offered above property by [Coldwell Banker] is understood to be the Broker’s prospect for a period of twelve months after the expiration of the listing agreement. Prospects will be registered with the owner....

(Emphasis added).

Testimony from Phyllis Rubin confirmed the difference between the two types of listing contracts:

... The exclusive right to sell means that no matter who sells it the realtor is due a commission. The exclusive agency listing means that if any other real estate agency or Coldwell Banker sells it, Coldwell Banker receives the commission. However, if the owner sells it, Coldwell Banker does not.

Ms. Rubin opined that the exclusive agency listing in this case was “prepared at the seller’s request.”

The Exclusive Agency Listing, as well as the Exclusive Right to Sell Agreement, were set to expire on August 25, 1988, with protection through August 25, 1989, and listed a selling price of $1,100,000. During this latest extension period, on June 15, 1988, Coldwell Banker received a telephone call from Rick Viders, a representative of Silver Line. This was the only contact that Coldwell Banker had with Silver Line. Coldwell Banker apparently prepared a “Notice of Showing” in an attempt to register Silver Line as a “broker’s prospect.” The Notice states that the property:

was presented to Silver Line-R.Viders on 6/15/88. The price quoted was $1,100,000. Should the above prospect or any representative contact you in connection with your property, please refer them to the showing REALTOR and notify said REALTOR at once, as your cooperation may greatly assist in the sale of your property.
THANK YOU
REMARKS: Wanted the asking price.

The Notice indicates that it was mailed to Romano on June 18, 1988. However, the Romanos testified that they never received a copy of the Notice.

In addition, during the contract period, Coldwell Banker introduced the property to a Robert J. Donnelly, who viewed the property on numerous occasions and expressed serious interest in purchasing it.

On August 23, 1988, the parties agreed to extend the current listing contracts until September 15, 1988, with a protection period until September 15, 1989 for “any buyers already solicited by Coldwell Banker.”

On October 4, 1988, Coldwell Banker received a written offer to purchase the property from Donnelly, for $1,000,000. The Romanos rejected the offer. After further negotiations, Donnelly agreed to pay $1,250,000 for the property, and the Romanos orally accepted that price. The parties’ respective attorneys proceeded to negotiate other terms and draft formal agreements of sale.

In the meantime, the Romanos contacted Silver Line to inform them of the Donnelly offer, as they were required to do under the right of first refusal. Silver Line decided to exercise its option to purchase the property at $1,250,000, and Romano informed Coldwell Banker. The property was transferred to Silver Line on March 30, 1989. Coldwell Banker first learned of the actual transfer from the newspaper; the broker never demanded payment of a commission from the Romanos until the institution of this lawsuit on October 10, 1989.

Coldwell Banker claims that it is entitled to a commission of $100,000 because Silver Line purchased the property during the protection period of an exclusive right to sell agreement, which did not specifically except from its purview a sale to Silver Line. In addition, Coldwell Banker claims it indirectly was the efficient procuring cause of the sale to Silver Line, because it obtained a buyer and increased the sale price to $1,250,000 through negotiations with Donnelly, and that it therefore is entitled to a commission under the terms of the contracts. In the alternative, Coldwell Banker argues that it is entitled to an award of quantum meruit damages, for the value of the work it performed and the benefits it conferred upon the Romanos.

The Romanos claim that any sale to Silver Line was specifically excepted from the Exclusive Right to Sell Agreement and its renewals by the mention of the right of first refusal on page one of the original contract. In addition, the Romanos argue that, after the August 1987 renewal, the listing contract was no longer an “exclusive right to sell” but rather an “exclusive agency listing,” and that this latest contract specifically provides that if the Romanos effect the sale, no commission would be due Coldwell Banker. Finally, the Romanos assert that any potential sale to Donnelly, Coldwell Banker’s prospect, was contingent upon Silver Line’s refusal of the option to purchase, and that when such contingency was not met, any chance for a commission was lost.

The trial judge, sitting without a jury, found in favor of the Romanos. Coldwell Banker filed a motion for post trial relief, requesting judgment n.o.v. or a new trial. The motion was denied and this timely appeal followed.

We may not reverse an order denying a motion for a new trial unless the trial court clearly and palpably abused its discretion or committed an error of law that controlled the outcome of the case. See Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985); Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989). Judgment n.o.v. is proper only in a clear case where, viewing the evidence in the light most favorable to the verdict winner, and granting the verdict winner every reasonable inference, there is insufficient evidence to sustain the verdict. See Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970); Ingrassia Construction Co. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478 (1984). Because we find that the trial court did not err in denying Coldwell Banker’s motion for post trial relief, we affirm.

A broker’s right to a commission is a matter of contract, whether express or implied. Solis-Cohen v. Phoenix Mutual Life Ins. Co., 413 Pa. 633, 198 A.2d 554 (1964). From May 30, 1986 until August 1987, Coldwell Banker had the exclusive right to sell the Romanos’ property. The language of the contract states that Coldwell Banker would be entitled to a commission if the property was sold or exchanged during the term of the contract, regardless of who actually effected the sale or exchange.

However, the trial judge found that a sale to Silver Line, which held a right of first refusal, was excepted from the exclusive right to sell, citing the handwritten notation on the front page of the original agreement. Whether this statement was intended to be an exception to Coldwell Banker’s right to a commission was disputed at trial.

In support of its argument that it is entitled to a commission, Coldwell Banker cites Real Estate Co. of Pittsburgh v. Cavazza, 174 Pa.Super. 19, 98 A.2d 486 (1953). In Cavazza, this court held that a broker earned a commission where it introduced a buyer to a listed property, the buyer was “ready, willing and able” to purchase the property at a price acceptable to the owner, but the property actually was sold to its tenant who held a right of first refusal. However, Cavazza is distinguishable from this case. In Cavazza, there was “some conflict in testimony as to whether [the broker] had agreed that there would be no commission in the event the tenant exercised his rights, but this conflict was decided in favor of the broker.” 174 Pa.Super. at 21, 98 A.2d at 487.

In this case, the same dispute was resolved against the broker. The trial court’s finding was supported by the evidence. Coldwell Banker’s own representative, Tony Sabia, testified that the statement about Silver Line’s right of first refusal was inserted in the section of the Exclusive Right to Sell Agreement where any exceptions to the broker’s right to receive a commission would appear.

Moreover, the Exclusive Agency Listing also was effective during the relevant time period. This later contract expressly limits Coldwell Banker’s right to a commission to a sale to a “broker’s prospect” which has been registered with the owner. Phyllis Rubin herself testified that an exclusive agency listing entitles the broker to a commission only when the property is sold to a broker’s prospect, and that a sale by the owner to a non-prospect would eliminate the commission. Finally, the parties agreed on August 23,1988 that the current listing contracts would be extended for one more month, and expire on September 15, 1988, with a 12 month protection period for “any Buyers already solicited by [Coldwell Banker].”

Coldwell Banker drafted each of these listing contracts, and to the extent their terms are contradictory or ambiguous, they must be construed against Coldwell Banker and in favor of the Romanos. See Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986); Raiken v. Mellon, 399 Pa.Super. 192, 582 A.2d 11 (1990). Under the terms of the last agreement, the Exclusive Agency Listing, Coldwell Banker is entitled to a commission from the Romanos only if a sale of the property is “made directly or indirectly to or through the Broker’s prospect.” Coldwell Banker’s own document states that a Broker’s prospect is one who is “offered” the property by Coldwell Banker, and who is “registered with the owner.” The issue now becomes whether Silver Line, the ultimate purchaser of the property, was Coldwell Banker’s “prospect.” We find no error in the trial court’s holding that it was not.

Coldwell Banker bases its argument that Silver Line was its prospect on the fact that it allegedly received a telephone call from a Silver Line representative, who inquired about the property’s asking price. This was the extent of Coldwell Banker’s contact with Silver Line. Coldwell Banker prepared a “show slip” addressed to Frank Romano, which indicated that the property “was presented to Silver Line” on June 15, 1988, and that the price quoted was $1,100,000. This written notice was allegedly mailed to Frank Romano on June 18, 1988, in order to “register” Silver Line as a broker’s prospect. Romano denied receiving a copy of the show slip. However, even if Coldwell Banker did mail the notice to Romano, Silver Line would not so easily become its “prospect” for purposes of earning a commission.

In order for a broker to earn a commission on a sale under a non-exclusive listing, the broker must be the “efficient procuring cause” of the sale. See Strout v. Haverstock, 382 Pa.Super. 340, 555 A.2d 210 (1989). In Strout, a broker entered into a non-exclusive listing agreement with a property owner, under which the owner retained the right to sell the property herself. The broker introduced the property to the pastor of a church congregation who was searching for a church property. The pastor then communicated information about the property which he received as a result of his contact with the broker to a third party, a consulting firm specializing in financing and purchasing church buildings for young congregations. The pastor and the owner arranged to show the property to the consulting firm, without the participation of the broker, and the firm eventually purchased the property for the pastor’s congregation. This court held that the broker was entitled to a commission because the broker’s initial contact with the pastor was the efficient procuring cause of the sale, albeit indirectly.

In this case, Coldwell Banker did not introduce Silver Line to the property, either directly or indirectly. To the contrary, Silver Line had a long-standing option to purchase the property, which arose through no effort of the broker, and Silver Line presumably already had important information about the property. The fact that Silver Line made a telephone call to the listing agent to discover the asking price does not make it a broker’s prospect for purposes of a commission. Moreover, Coldwell Banker’s tacit understanding that it was not entitled to a commission after the Silver Line sale is apparent because, although Romano informed Coldwell Banker of the sale, Cold-well Banker did not follow the transaction to settlement, and never demanded a commission from the Romanos until it filed this lawsuit. The trial court did not err in finding that Coldwell Banker’s endeavors to sell the property were not an efficient procuring cause of the transfer to Silver Line. See Warfel Estate, 417 Pa. 458, 209 A.2d 293 (1965) (broker not entitled to commission under non-exclusive listing agreement, where she was not efficient procuring cause of sale to third party who was not broker’s prospect); Stevenson v. Nichols, 362 Pa. 25, 66 A.2d 235 (1949) (broker entitled to commission where he was efficient procuring cause of sale by introducing buyer to property).

Coldwell Banker asserts that its efforts actually were the efficient procuring cause of the ultimate sale to Silver Line because Silver Line never would have decided to purchase the property unless the Romanos listed it with some broker, in this case Coldwell Banker, and unless that broker actually obtained a suitable offer from a buyer, in this case, Donnelly. This may be true. However, none of the cases which discuss the concept of “efficient procuring cause” indicates that such an attenuated role in the sale entitles a broker to a commission. Rather, a broker should be aware of the potential consequences in the event another party has the right of first refusal on a listed property, and should make clear its intent to have a truly exclusive right to sell, without exception. By allowing an exception to the Exclusive Right to Sell Agreement, and by later entering into an Exclusive Agency Listing, Coldwell Banker failed to protect any alleged right to a commission.

Finally, Coldwell Banker argues that it is entitled to a commission on a quantum meruit theory since it produced a “ready, willing and able” purchaser, Donnelly, and because this offer in turn caused Silver Line to exercise its option to purchase the property. This argument fails for two reasons. First, the parties’ relationship was based on a series of written contracts, and where such an express contract exists on the very issue of commission, no quantum meruit/unjust enrichment recovery is permitted. See Third Nat’l Bank & Trust Co. v. Lehigh Valley Coal Co., 353 Pa. 185, 44 A.2d 571 (1945); Birchwood Lakes Community Ass’n, Inc. v. Comis, 296 Pa.Super. 77, 442 A.2d 304 (1982). “One who claims on an express contract to pay a fixed compensation but who fails to prove his contract, cannot recover on quantum meruit by proving simply the value of the services rendered without showing an actual promise to pay.” Schlechter v. Foltz, 179 Pa.Super. 119, 115 A.2d 910 (1955).

Moreover, it was not enough under the contracts that Coldwell Banker produce a buyer such as Donnelly for the property; under the express terms of the contract, the property had to be “sold or exchanged” to that particular buyer in order for the commission to accrue. Where the payment of a broker’s commission is conditioned upon the occurrence of a certain event, and the condition is not met, no commission is earned. Sork v. Rand, 422 Pa. 512, 222 A.2d 890 (1966) (no commission is earned where agency contract included conditions for sale which were not satisfied); Axilbund v. McAllister, 407 Pa. 46, 180 A.2d 244 (1962) (broker did not earn commission where agency contract provided it would accrue only if sale price of $300,000 were obtained, and property sold for just $295,000).

In addition, the offer made by the broker’s prospect, Donnelly, was necessarily contingent upon the occurrence of at least two unfulfilled conditions: the completion and approval of a final agreement of sale and Silver Line’s rejection of its option to purchase the property. Because these contingencies were not met, and because the property was not “sold or transferred” to Donnelly, Coldwell Banker is not entitled to a commission. See Shumaker v. Lear, 235 Pa.Super. 509, 345 A.2d 249 (1975) (where mortgage financing condition was not satisfied, buyer was not “ready, willing and able,” and broker has no right to commission).

Therefore, we affirm the trial court’s denial of Coldwell Banker’s motion for post trial relief.

Order affirmed.

      . This provision guaranteed that if the property was sold or exchanged after the listing agreement had expired, but during the "protection period," to “anyone with whom [the broker], any other agent, or [the owner] have negotiated with during the term of said agency” the broker still would receive its commission.

      . Frank Romano testified that he granted the right of first refusal to Silver Line when he purchased the property in 1967 in exchange for Silver Line’s grant of a right of way across Silver Line’s property.

      . Coldwell Banker’s owner, Phyllis Rubin, testified that there are strict approval procedures when an exception is requested, and that these procedures were not followed for the Romano agreements.

      . The listing contracts provide for a commission of 10% of the sale price or, in this case, $125,000. However, after the Donnelly offer of $1,250,000, Coldwell Banker agreed to accept a reduced commission of $100,000, at the Romanos' request.

      . Although both contracts are labelled "exclusive”, it is clear that the second type of agreement, the "exclusive agency listing”, is exclusive only to the extent the sale is broker-assisted. In other words, no matter which broker effects the sale, Coldwell Banker gets the commission. But, because the agreement allows a sale by the owner without commission, the "exclusive agency listing” is not truly "exclusive.”

      . As discussed above, the Exclusive Right to Sell Agreement and the Exclusive Agency Listing were effective concurrently during the August 23, 1987-September 15, 1988 term. The fact that Coldwell Banker-entered into the Exclusive Agency Listing is further evidence that it knew it would not be entitled to a commission under the circumstances of this case.


author: BECK, Judge:

text:
    619 A.2d 703
    Malka C. GOODSTEIN, Appellant v. Martin E. GOODSTEIN and Rosenfelt, Siegel & Goldberg, P.C. (Garnishee).
    Superior Court of Pennsylvania.
    Argued March 19, 1992.
    Filed Nov. 10, 1992.
    Reargument Denied Jan. 21, 1993.

      Carl N. Martin, II, Philadelphia, for appellant.
    Eugene A. Spector, Philadelphia, for participating party.
    Before CAVANAUGH, OLSZEWSKI and BECK, JJ.
   BECK, Judge:

In this appeal, inter alia, we decide whether under the Divorce Code the 50% limit on garnishment of wages for nonpayment of alimony is properly calculated on 50% of an individual’s gross wages, or, as determined by the trial court, on 50% of an individual’s net wages. We find that section 3703 of the Divorce Code permits garnishment of up to 50% of an obligor’s gross wages. For this reason, as well as others outlined in the opinion, we reverse the order of the trial court.

In this appeal, plaintiff-appellant Malka Goodstein is challenging the trial court’s order of garnishment against her ex-husband’s former employer, defendant-appellee Rosenfelt, Siegel & Goldberg, P.C. (Rosenfelt).

-Facts and Procedure-

Malka C. Goodstein (Malka) and Martin E. Goodstein (Martin) were divorced in Connecticut in January, 1983. The divorce decree provided for unallocated alimony and support in the amount of $200.00 per week for Malka and the couple’s child. In addition, Martin was ordered to pay past due mortgage payments, existing liens, taxes, counsel fees and other amounts.

On January 25, 1985, the Connecticut Superior Court entered judgment against Martin in the amount of $42,966.79 for arrearages on the 1983 decree. Malka subsequently transferred this judgment to the Commonwealth of Pennsylvania. She first attempted to enforce the judgment by filing a Petition to Enforce, Register, and Adopt Foreign Decree pursuant to sec. 506 of the Divorce Code, 23 Pa.Cons.Stat.Ann. sec. 3705. The petition was denied by the trial court. On appeal, in an unpublished opinion, this court affirmed the trial court’s order, holding that sec. 506 permitted enforcement of foreign orders for alimony only; because the Connecticut judgment represented an unallocated sum for alimony, support, and other kinds of payments, it could not be enforced under sec. 506. Goodstein v. Goodstein, 1661 Phila.1986 (Pa.Super. December 8, 1987) (first appeal).

Malka then filed a petition pursuant to the Uniform Enforcement of Foreign Judgments Act, 42 Pa.Cons.Stat.Ann. sec. 4306, and was successful in having the Connecticut judgment transferred to the Delaware County Court of Common Pleas.

On February 11, 1988, Malka filed a Praecipe for Writ of Execution in the amount of $42,966.79 on the Connecticut judgment, now registered and adopted as a Pennsylvania judgment, naming Rosenfelt as garnishee. On March 2, 1988, the sheriff served the writ of execution on Rosenfelt.

Martin filed preliminary objections to the writ of execution. The trial court denied his preliminary objections to the extent that the writ represented past due alimony and/or support. Martin appealed the court’s order (second appeal).

While Martin’s appeal of the writ of execution was pending, Malka continued to proceed against Rosenfelt. In March of 1988, Malka served Rosenfelt with interrogatories pursuant to Pa.R.Civ.P. 3144, regarding the amount of wages and other compensation paid to Martin. Rosenfelt filed a response to the interrogatories setting forth Martin’s salary information. Based on Rosenfelt’s response, Malka filed a praecipe with the court to enter judgment of garnishment in the amount of $11,529.38. On August 16, 1988, the court entered judgment pursuant to Pa.R.C.P. 3146(b) in the amount of $11,529.38 in favor of Malka and against Rosenfelt. At a later time the court awarded Malka $966.70 based on garnishment of an automobile allowance paid to Martin. The total judgment of garnishment of approximately $12,500 will be hereinafter referred to as garnishment from “the first pay period.”

Meanwhile, during the pendency of his second appeal, Martin sought and obtained three orders from this court. The first order stated as follows:

AND NOW, this 4th day of October, 1988, appellant’s [Martin’s] application for supersedeas is granted to the extent that the garnishment shall not exceed a sum equal to fifty percent (50%) of the net compensation paid to appellant.

The second order stated:

AND NOW, this 12th day of January, 1989, upon consideration of appellant’s emergency application for clarification of this court’s order of October 4, 1988, the order of October 4, 1988 is clarified as follows: 50% of appellant’s net disposable income shall continue to be escrowed by the garnishee and 50% of appellant’s net disposable income shall be released to appellant.

Finally, this court entered a third order stating that:

AND NOW, this 9th day of February, 1989, after review of the entire record and the presentation of argument by the parties, IT IS HEREBY ORDERED:
THAT the garnishee, Rosenfelt, Siegel & Goldberg is directed to withhold from the earnings of appellant the greater of the sum of $1,300 per month, or a sum equivalent to 50% of his net earnings;
THAT the garnishee is directed to hold such sums, as will be withheld pursuant to this Order, as well as such sums as have already been withheld from the compensation of appellant, in escrow, pending the final resolution of the litigation of which this appeal is a part; and THAT the Prothonotary of the Superior Court is directed to set an expedited schedule for the submission of briefs and the presentation of oral argument.

In August, 1989, this court issued its ruling in the second appeal, Goodstein v. Goodstein, 386 Pa.Super. 556, 563 A.2d 522 (1989). The Superior Court affirmed the trial court and held that the Connecticut judgment was enforceable as to support and alimony under 42 Pa.Cons.Stat.Ann. sec. 8127. Since it was unclear as to how much of the Connecticut judgment represented alimony and support, the Superior Court remanded to the trial court to make that determination. 563 A.2d at 525.

On remand, the trial court entered an order finding that $42,966.79 was the amount of the Connecticut judgment representing support and alimony, and that the total amount was subject to wage garnishment. In November, 1989, Rosenfelt made payment to Malka of $12,496.08, an amount equal to the sum of the garnishment judgments entered against Rosenfelt for the first pay period. This figure was based on Martin’s wages up to August 16, 1988, and the automobile allowance.

In order further to garnish Martin’s wages for the period of time following the first pay period Malka caused a second Writ of Execution to be issued, again naming Rosenfelt as garnishee and served a second set of interrogatories on Rosenfelt. The writ covered the period from August 17, 1988 to October 15, 1989 (the second pay period). Upon Rosenfelt’s failure to answer her interrogatories, Malka obtained a default judgment in an unliquidated amount on November 30, 1989. Following a hearing, the trial court issued an order entering judgment in garnishment against Rosenfelt and in favor of Malka in the amount of $15,327.63, together with interest from the date of the entry of the default judgment and the costs of the garnishment.

In its opinion, the trial court explained its calculation of the award as follows. The trial court found that wages and bonuses paid by Rosenfelt to Martin for his entire tenure with Rosenfelt, ie., for the first pay and second pay period, totalled $72,554.58. The court then deducted an appropriate amount for federal income tax withholding, and calculated 50% of the remainder. The result of this calculation was a determination that Rosenfelt owed Malka a total of $27,823.71, to which the court applied as a credit the $12,496.08 payment made by Rosenfelt in November, 1989. The remainder owed by Rosenfelt to Malka was $15,327.63, plus interest on this amount from the date of entry of the default judgment, and costs. Malka then filed this appeal (third appeal).

-Supersedeas Orders-

In this third appeal Malka first claims that the trial court erred in finding itself bound by the 50% ceiling on wage garnishment set forth in the supersedeas orders of the Superior Court. We agree with Malka that the trial court erred in holding itself to be bound by the supersedeas orders entered pending the second appeal.

A supersedeas order “is an auxiliary process designed to supersede or hold in abeyance the enforcement of the judgment of an inferior tribunal.” Young J. Lee, Inc. v. Com., Dept. of Revenue, 504 Pa. 367, 474 A.2d 266 (1983). A supersedeas order is not an appellate ruling on the merits of the judgment below; it “does not open, strike off or vacate the judgment or otherwise remove the judgment from the record or render it invalid.” Babin v. City of Lancaster, 125 Pa. Commw. 470, 473, 557 A.2d 464, 466 (1989), app. granted, 525 Pa. 613, 577 A.2d 545 (1990), quoting Wilkes-Barre Clay Products Co. v. Koroneos, 342 Pa.Super. 582, 586, 493 A.2d 744, 746 (1985). While the reasoning of this court in entering a supersedeas may be persuasive to the trial court, the order itself is not binding on the trial court once the appeal has been decided. We note that in this case, when the judgment of garnishment was reviewed by this court in the second appeal, the judgment was affirmed to the extent it represented alimony and support and the matter was remanded only for the trial court to make a determination of how much of the Connecticut judgment was allocable to alimony and support. There was no reduction in the garnishment amount to meet the 50% limit of the Divorce Code. See Goodstein v. Goodstein, 386 Pa.Super. 556, 563 A.2d 522 (1989).

Malka also contends that the supersedeas orders were invalid because Rosenfelt failed to file appropriate security to support them. This issue is mooted by our finding that the trial court erred in finding itself bound by the supersedeas orders. Since the trial court was not bound by even valid supersedeas orders, we need not decide whether the orders here were valid or not, or whether security is needed to render this kind of supersedeas order enforceable.

In this third appeal, Malka raises various other claims of error. We address them separately.

-Basis for Garnishment Award-

-First Pay Period-

Malka’s claim relates to the trial court’s basing the award of garnishment on Martin’s wages for his entire tenure with Rosenfelt instead of limiting the award to the second pay period. Malka argues that it was error for the court to recalculate the sum owed her for garnishment for the first pay period, ie., for wages from March 2 to August 16, 1988 and the automobile allowance. Malka asserts that Rosenfelt has already satisfied the judgments covering the first pay period by paying her $12,496.08. She asserts that Rosenfelt never appealed those judgments. She states that the trial court should have taken these judgments as conclusive of the amount due from Rosenfelt for the first pay period. We agree.

Judgments from the first pay period were entered on August 16,1988 in the amount of $11,529.38, representing 65% of the net wages paid to Martin by Rosenfelt for March 2 to August 16,1988, and later in the amount of $966.70, representing the automobile allowance paid to Martin by Rosenfelt. These two judgments representing the first pay period totalled $12,496.08. In November, 1989, Rosenfelt satisfied those judgments by paying Malka $12,496.08.

In its order which forms the basis of this third appeal, the trial court changed the percentage garnished for the first pay period from 65% to 50% of Martin’s net wages, and failed to include any sum for garnishment of the amount paid to Martin for the automobile allowance. The court’s final award for these items was $2,271.00 less than the sum of the two judgments obtained by Malka earlier.

We agree with Malka that the trial court erred in recalculating the amount owed to her for the first pay period for the following reasons.

We find that the judgments based on the first pay period were- final judgments. Both were entered upon Malka’s praecipes, asserting a right to judgment based on Rosenfelt’s answers to her interrogatories. According to the Rules of Civil Procedure for the Enforcement of Money Judgments, Pa.R.Civ.P. 3145(a), the procedure between the plaintiff (herein Malka) and the garnishee (herein Rosenfelt) in an action for garnishment “shall, as far as practicable, be the same as though the interrogatories were a complaint and the answer of the garnishee were an answer in a civil action.” Applying this rule, we find that Malka’s praecipe for the entry of judgment was in the nature of a motion for judgment on the pleadings pursuant to Rule 3147. See Orie v. Stone, 411 Pa.Super. 481, 601 A.2d 1268 (1992), app. granted, 530 Pa. 660, 609 A.2d 168 (1992) (treating Motion to Compel Payment, filed after interrogatories had been served and answered, as a motion for judgment on the pleadings pursuant to Rule 3147(a)); Johnson v. Johnson, 357 Pa.Super. 248, 515 A.2d 960 (1986), app. den., 515 Pa. 581, 527 A.2d 541 (1987) (treating Rule to Show Cause Why the Answers to Interrogatories Should Not Be Stricken as Contrary to the Law as a motion for judgment on the pleadings pursuant to Rule 3147). A judgment on the pleadings under Pa.R.Civ.P. 3147 is a final and appealable order. Orie v. Stone, supra; Johnson v. Johnson, supra. Any appeal therefrom must be filed within thirty days. Pa. R.App.P. 903(a). Since Rosenfelt failed to file a timely appeal from the judgments for the first pay period, we find that Rosenfelt has waived the right to challenge those judgments.

We therefore find that the trial court erred in re-calculating the items covered by the judgments for the first pay period, and reverse that portion of the trial court’s award pertaining to garnishment for the first pay period.

-Second Pay Period-

We now address the court’s calculation with regard to garnishment for the second pay period, from August 17, 1988 to October 15, 1989. The court’s garnishment order was based on 50% of Martin’s net earnings. We conclude the court erred because gross earnings, not net earnings, are the proper basis for the calculation under section 3703 of the Divorce Code.

Section 3703 of the Divorce Code, 23 Pa.Cons.Stat.Ann. sec. 3703, provides as follows:

If at any time a party is in arrears in the payment of alimony or alimony pendente lite as provided for in sections 3701 (relating to alimony) and 3702 (relating to alimony pendente lite, counsel fees and expenses), the court may, after hearing, in order to effect payment of the arrearages.... (3) Attach no more than 50% of the wages of the party.

The question of whether the “wages” referred to in section 3703 refers to gross or net wages appears to be an issue of first impression in Pennsylvania.

The term “wages” is not defined in the Divorce Code. In looking to other Pennsylvania statutes that do define the term, we find that their definitions suggest that the word refers to gross, rather than net, wages. The Wage Payment and Collection Act defines wages as “including] all earnings of an employe, regardless of whether determined on time, task, piece, commission or other method of calculation. The term ‘wages’ also includes fringe benefits or wage supplements whether payable by the employer from his funds or from amounts withheld from the employes’ pay by the employer.” 43 Pa.Stat.Ann. sec. 260.2a (emphasis added). The Unemployment Compensation Act defines wages as “all remuneration ... paid by an employer to an individual with respect to his employment.” 43 Pa.Stat.Ann. sec. 753(x) (emphasis added). Under the Unemployment Compensation Act, “remuneration is defined as payment for services performed.” Com., Dept of Corrections v. Com., Unemployment Compensation Board of Review, 119 Pa.Commw. 296, 300, 547 A.2d 470, 472 (1988).

We are also guided by our concern that individuals could reduce the amount available for garnishment of their wages by increasing the amount deducted from their wages for certain expenses as well as by increasing the amount of federal or state income tax to be withheld, as in fact occurred in this case. It would not serve the purpose of this section of the Divorce Code, which is to provide a source of payment for the arrearages of a recalcitrant ex-spouse, to leave such a weapon in the hands of an individual who has already shown a disregard for his or her obligations. We therefore find the trial court erred in calculating the amount to be garnished at 50% of Martin’s net wages instead of his gross wages for the period of August 17, 1988 through October 15, 1989.

We reverse the order of the trial court and remand this matter with the direction that the trial court recalculate the amount of the garnishment judgment in accordance with this opinion. Jurisdiction relinquished.

      . 23 Pa.Cons.Stat.Ann. Section 3703.

      . At the time of Mr. Goodstein's employment with Rosenfelt, the entity was organized as a partnership under the name Rosenfelt, Siegel & Goldberg. During the course of the litigation, the partnership incorporated and became Rosenfelt, Siegel & Goldberg, P.C. In recognition of this change, the trial court entered an order on July 17, 1991, 11 Pa. D. & C. 4th 294, correcting its previous order to direct that judgment be entered against Rosenfelt, Siegel & Goldberg, P.C. Appellee Rosenfelt has not contested this change in the name of the party against whom the trial court’s order is entered. In this opinion, we will use "Rosenfelt” to refer to the partnership or the corporation interchangeably.

      . Rosenfelt as garnishee was the party in interest in the trial court and is the appellee in this appeal.

      . Rosenfelt amended its answers to interrogatories after they were first filed, giving information on an automobile allowance paid to Mr. Goodstein. A judgment of garnishment in the amount of S966.70, based on this allowance, was entered against Rosenfelt on February 22, 1989.

      . Martin had argued on appeal that under section 8127, entitled "Personal Earnings Exempt From Process”, the court had no authority to issue a garnishment judgment where the underlying debt was an unallocated award of support, alimony and other items.

      . Martin left Rosenfelt’s employ on October 15, 1989.

      . On June 15, 1988, after his employer had been served with the order of garnishment, Martin increased his tax withholding from $209.27 per pay to $342.56 per pay. This had the effect of reducing the amount of income subject to attachment by Rosenfelt for payment to Malka. The trial court found that Martin had increased his withholding deliberately in order to reduce the amount of money being held by Rosenfelt for Malka, and in its calculations used Martin's earlier withholding figure of $209.27.

      . Orders of January 12 and February 9, 1988.

      . Rule 3147 provides as follows: "If the court enters judgment for the plaintiff and against the garnishee upon pleadings or after trial, the judgment shall be for the property of the defendant found to be in the garnishee's possession, but no money judgment entered against the garnishee shall exceed the amount of the judgment of the plaintiff against the defendant together with interest and costs.”

      . Indeed, we note that Rosenfelt in fact paid the judgments in November, 1989. In the hearing held on December 4, 1989, on Malka’s second writ of execution, Rosenfelt’s attorney reported to the court that payment of $12,496.00 had been made, N.T., 12/4/89, p. 6, and did not contradict Malka’s counsel when he asserted to the court that that money was paid in satisfaction of the two earlier judgments. R.R. 109a-l 10a.

        . Malka also claims that the trial court erred in applying the 50% wage attachment found in the Divorce Code rather than the 65% attachment of a support obligor’s wages pursuant to the Consumer Credit Protection Act, 15 U.S.C. sec. 1673(b)(2)(B). Based on Wilcox v. Wilcox, 394 Pa.Super. 119, 575 A.2d 127 (1990), we find no merit in Malka’s argument.
      Malka also claims that the trial court erred in applying the 50% limit of the Divorce Code because, she claims, “this court had previously held that the Divorce Code does not apply to the Connecticut judgment,” allegedly in our unpublished decision in Goodstein v. Goodstein, 1661 Phila. 1986 (Pa.Super. December 8, 1987). Malka simply is wrong in her characterization of this court's previous decision. As we stated above, the holding in that case was restricted to a finding that section 506 of the Divorce Code permitted enforcement of foreign decrees of alimony and support.


author: CIRILLO, Judge:

text:
    619 A.2d 709
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael MORRIS.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1992.
    Filed Nov. 25, 1992.
    Reargument Denied Feb. 2, 1993.

      Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Paul George, Asst. Public Defender, Philadelphia, for appellee.
    Before CIRILLO, MONTEMURO and TAMILIA, JJ.
   CIRILLO, Judge:

The Commonwealth appeals a Court of Common Pleas of Philadelphia County order suppressing 109 vials of crack cocaine found after a routine traffic stop. We reverse.

Michael Morris was charged with possession and possession with the intent to deliver a controlled substance. Morris was a passenger in a car stopped in mid-morning by Officer Larry Smart for failing to signal a right-hand turn. When Officer Smart approached the stopped car he saw Morris stuffing a brown paper bag under the seat. Officer Smart went around the car to the passenger’s side and ordered Morris out of the car. The police officer looked into the car and found a brown paper bag containing clear vials. He testified that when he saw the vials he recognized, and it was later confirmed, that they contained crack cocaine. The police officer patted Morris down for weapons while the driver remained in the car with his hands on the dashboard as Officer Smart had ordered. Officer Smart then arrested Morris.

We are asked to determine whether an officer’s order to a passenger to get out of a car, following a routine traffic stop, and the subsequent seizure of contraband under the passenger seat was reasonable under the facts of this case.

In reviewing an order granting a motion to suppress, we must first determine whether the suppression court’s factual findings and legal conclusions are supported by the record. Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992) (citing Commonwealth v. Vinson, 361 Pa.Super. 526, 522 A.2d 1155 (1987)). To determine whether the findings of fact are supported by the record, we review only the evidence of the appellee and so much of the evidence of the appellant which, when read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Reddix, 355 Pa.Super. 514, 513 A.2d 1041 (1986) (citation omitted). If the factual findings are supported by the record, then we may reverse only for an error of law. Id.

The Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution protect citizens from “unreasonable searches and seizures.” Evidence derived from an unreasonable search or seizure is inadmissible at trial. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). To determine whether the vials of crack cocaine were properly suppressed we must determine whether the police officer’s search of the car was reasonable. We arrive at this determination by addressing each increment of the confrontation separately: 1) the initial stop of the motor vehicle for a traffic violation, 2) the officer’s request that Morris get out of the vehicle, 3) the discovery of the brown bag containing crack vials, and 4) the search of the passenger compartment and the pat down of Morris.

A forcible stop of a motor vehicle by a police officer constitutes a seizure of a person and activates the protections of the Fourth Amendment of the U.S. Constitution. Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989). However, a forcible stop and seizure is not unreasonable under the Fourth Amendment where the officer has articulable and reasonable grounds to suspect, or probable cause to believe that criminal activity may be afoot. Swanger, supra; see Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974). Here, the record establishes that the vehicle in which Morris was a passenger was stopped for a violation of the Motor Vehicle Code. Such a stop under these facts is permissible under 75 Pa.C.S.A. § 6308. The initial stop, therefore, was proper. Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988), alloc. denied, 521 Pa. 617, 557 A.2d 721 (1989); see also Swanger, supra. As this court stated in Elliott, “the more difficult question is whether the suppression court erred in concluding that [the officer’s] order to [Morris], the passenger, to step from the vehicle constituted an unreasonable invasion in the absence of a reasonable suspicion that he was armed and dangerous.” We disagree with the suppression court’s conclusion that, regardless of the lawfulness of the vehicle stop, the officer had no justification for ordering Morris out of the car.

Concern over the safety of our police officers mandates that a police officer maintain the authority to order a driver out of a vehicle. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the Supreme Court found that an officer’s order to a driver to get out of a vehicle, issued after the driver was legally detained for a motor vehicle violation, was not an unreasonable seizure when balanced against legitimate concerns for the officer’s safety. Id. at 111, 98 S.Ct. at 333. The Court described the intrusion as “de minimis” as compared to the risks and hazards confronting an officer under these circumstances. Id. at 110-111, 98 S.Ct. at 333. “What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.” Id.

In Elliott, supra, this court determined that the same rationale applies to passengers in a lawfully stopped vehicle when the officer has an articulable basis to believe that criminal activity is afoot. 376 Pa.Super. at 549, 546 A.2d at 660. As the Elliott court observed, the Mimms case “makes it clear that the officer need not articulate any reason for ordering the driver from the vehicle when the vehicle is lawfully detained for a traffic violation.” Id. In Elliott, the officer did not simply order the passenger out of the vehicle as a matter of course. The officer “was able to articulate a tenable reason for his actions.” Id. The officer observed beer on ice behind the passenger and empty beer bottles throughout the car. When the passenger told the officer that he was 19 years old, the officer had a sufficient basis for believing that criminal activity was afoot. Id.

Similarly, the officer’s actions in the case before us were justified after observing Morris’s furtive movements in stuffing a brown bag under the front passenger seat of the vehicle. This action justified not only the command of the officer for Morris to get out of the car, but the subsequent search of the passenger compartment and frisk of Morris under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

A search without a warrant is generally unreasonable. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963) cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). There are, however, exceptions to the warrant requirement. One of those was articulated in Terry, where the Supreme Court held that a police officer can “stop and frisk” an individual for weapons on an articulable suspicion that wrong-doing may be afoot and that the subject may be armed. The Terry rationale is based upon the legitimate interest in allowing an officer to protect himself or herself.

In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) the Supreme Court extended the rationale of Terry to include the passenger compartment of a car, holding:

[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer believing that the suspect is dangerous.

Id. at 1049, 103 S.Ct. at 3481.

Turning to 'the case at hand, we find that the officer lawfully stopped the car in which Morris was riding for a violation of the Motor Vehicle Code. Once the car was stopped, Officer Smart acted reasonably in ordering Morris out of the car after he saw Morris push a bag under the seat. Elliott, supra. The officer’s observation of Morris’s actions created more than a mere guess; his observations supported a genuine belief that his safety was in jeopardy and, at the very least, articulable suspicion that the bag contained contraband or a dangerous weapon. Terry, supra; Long, supra; Elliott, supra.

The officer was positioned lawfully, and he was entitled to search the car for his own protection. Terry, supra; Long, supra. The fruits of that search are, consequently, admissible. Katz, supra The seizure of the bag and visible contraband, following the permissible stop and order for Morris to get out of the car, gave the officer reasonable suspicion to suspect that Morris was connected with criminal activity or that he may be armed and dangerous. As a result, Morris’s pat down and arrest was likewise reasonable. Terry, supra; Long, supra; Elliott, supra.

We note that this case is distinguishable from Lopez, supra, a case recently decided by a panel of this court. In Lopez, after an initial lawful stop, the officer pressed his investigation on no articulable basis. This court held in Lopez that the ensuing search was unreasonable. In this case, seeing Morris push a bag under the seat could reasonably have given Officer Smart fear for his safety. No such basis was present in Lopez.

Order reversed. Remanded for proceedings consistent with this decision. Jurisdiction relinquished.

Decision rendered prior to MONTEMURO, J., leaving the bench.

      . The Commonwealth’s right to appeal an unfavorable suppression order is not absolute. It is a qualified right. To accord a suppression order the attribute of finality necessary " ‘to justify the grant of the right of appeal to the Commonwealth ...,’ the Commonwealth [must] certify] in good faith that the suppression order terminates or substantially handicaps its prosecution.” Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985). The Commonwealth has certified here that the suppression order terminates or substantially handicaps its case. Id. See also 42 Pa.C.S.A. § 5105(a).

      . Though not a question before us, we point out that there would appear to be no basis for distinguishing between an officer's authority to order a driver from a car, and an officer’s authority to order a passenger from a car when the officer reasonably fears in either case for his or her safety or believes that criminal activity is afoot.

      . Morris argues that the Commonwealth waived the argument that the stop was a legitimate Terry stop and frisk by not raising it at the suppression hearing. We find that the assistant district attorney by citing Pennsylvania cases which rely on Terry amply raised the argument. In any case we are not bound to consider only legal arguments raised in the trial courts; we are free to consider any issue properly preserved on any legal grounds we find appropriate. Pa.R.A.P. 302(a). The Commonwealth vigorously raised the issue that suppression was inappropriate in this case.

      . While we find that the search of the passenger compartment was reasonable under Terry, supra, and Long, supra, we note parenthetically that notwithstanding the officer’s observations of Morris’s furtive movement, seizure of the bag would still be permissible under the facts of this case. The record establishes that the bag was only partially stuffed under the passenger seat with exposed clear vials protruding out from under the seat. Accordingly, the officer would be justified in seizing the bag as the vials were in plain view and the seizure would be a continuation of the officer’s prior justification of legally stopping the car for a motor vehicle violation. Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984) (the plain view doctrine is not an independent exception to the warrant requirement, but rather, it is an extension of whatever the prior justification for the officer’s access to the object may be).