author: CAVANAUGH, Judge:

text:
    611 A.2d 715
    Lona MILLARD, Administratrix of the Estate of Michael A. Millard, Deceased, Appellant, v. John OSBORNE and Thiel College v. LAMBDA CHI ALPHA, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1992.
    Filed June 17, 1992.
    Petition for Allowance of Appeal Denied Oct. 28, 1992.

      Michael E. Dunlavey, Erie, for appellant.
    Roger H. Taft, Erie, for Thiel College, appellee.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order granting summary judgment in favor of defendants Thiel College and Lambda Chi Alpha, Inc. For the reasons stated hereinafter, we affirm the order of the lower court.

The facts of this tragic case are as follows. The decedent, an eighteen year old freshman at Thiel College, was present at the Lambda Chi Alpha fraternity house socializing with some fraternity members in the early afternoon prior to a homecoming party scheduled for that evening. The party had been permitted by the college according to its stated alcohol policy, and was scheduled to occur from 8:00 pm to 1:00 am, several hours after the decedent’s visit to the fraternity house. However, the beer for the upcoming party had been delivered to the fraternity house at approximately midday.

While at the house, the decedent was seen drinking beer. At approximately 7:30 p.m. on that same date he was driving his motorcycle eastbound on Route 322 (witnesses uniformly stated his headlight was off or very dim) in Crawford County when defendant John Osborne, driving westbound along that same road, attempted to pass the car in front of him. The resulting head-on collision killed decedent, and a subsequent analysis of his blood yielded a blood alcohol content level of .133.

The administratrix of decedent’s estate filed suit against John Osborne and Thiel College. Defendant Thiel College joined as additional defendant Lambda Chi Alpha Fraternity. The claim against Thiel College was alleged in paragraphs 26-28 in the plaintiff’s complaint as follows:

26. That the actions of Thiel College in sanctioning, authorizing and allowing beer parties to take place on their campus with their implicit and, in this particular case as alleged, expressed approval and knowledge constitutes gross negligence.
27. That the fatal injuries suffered by Michael A. Millard were a foreseeable consequence of the negligent actions of the administration of Thiel College and their grossly negligent policies of allowing the consumption of alcoholic beverages on their campus and, in fact, their positive policy allowing such consumption, knowing full well that the vast majority of their students on the campus are not of legal age to consume alcoholic beverages.

28. That the negligent actions of Thiel College consisted of at least the following:

a. Allowing alcoholic beverages to be consumed on their cámpus; b. Openly advocating the policy of consumption of alcoholic beverages; c. Failing to monitor or control the consumption of alcoholic beverages on its campus, particularly through its agents, the members of Lambda Chi Alpha fraternity; d. Failing to have adult members of the faculty or administration present to monitor the consumption of alcoholic beverages and insure that no one under the age of 21 was consuming alcoholic beverages which were allowed on the campus by the administration; and e. Failing to prevent minors, particularly, the decedent, Michael A. Millard, from consuming alcoholic beverages which, in this particular case, may have contributed to his demise.

29. That as a direct and proximate result of the negligence of Thiel College, its administration and/or employees, Michael A. Millard did consume alcoholic beverages at the Lambda Chi Alpha [house] on October 18,1985 and was, subsequently, involved in a fatal motorcycle/vehicle accident as hereinbefore stated, resulting in his death.

30. That the Plaintiff, upon information and belief, believes that the consumption of alcoholic beverages at Thiel College may have contributed to the fatal automobile accident in which Michael A. Millard was involved. Relying on our supreme court’s decision in Alumni Association v. Sullivan, 524 Pa. 356, 572 A.2d 1209 (1990) which refused to extend “social host” liability to include persons other than those who knowingly furnished alcohol to minors, the trial court granted defendants Thiel College and Lambda Chi Alpha’s motion for summary judgment, reasoning that there was no evidence to show that:

the defendants’ knowingly or intentionally did serve, supply, aid in, or abet in any way the consumption of alcohol by minors at the fraternity party on the afternoon of Mr. Millard’s death.

See also Jefferis v. Commonwealth, 371 Pa.Super. 12, 17, 537 A.2d 355, 358 (1988).

The plaintiff appeals that decision, reasoning that there was substantial evidence to support a finding that appelleedefendants rendered substantial assistance to the decedent in his consumption of alcohol, and that appellee Thiel College failed to exercise substantial control over the conduct of its students, as it purported to do, in violation of its duty to the students. Much of appellant’s argument focuses on alleged policy shortcomings and administrative inadequacies and fails to relate to the real issue of what the appellees did or failed to do on the day of this fateful accident.

We address the substantial assistance issue first. Appellant vigorously asserts that the school aided and assisted the decedent in his consumption of alcohol by its policies and actions. More specifically, she contends that the Lambda Chi house was owned by the school (leased for one dollar per term to the fraternity), and the school maintained absolute control over the house according to the lease. Further, appellant asserts although Thiel College had a longstanding alcohol policy, which policy gave rise to a duty to control alcohol on its campus, and infractions of it received little or no discipline.

Appellant points us to the additional fact that, although 70% of campus was under the legal drinking age, Lambda Chi was allowed to build a bar for the service of alcoholic beverages in the basement of the house. Appellant claims that all these factors together constitute aiding the decedent minor in his consumption of alcohol, and imposing civil liability upon Thiel College would therefore be proper.

As a preliminary matter, we address the standard of review to be used in a case where the lower court has granted a motion for summary judgment.

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 therefrom. 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). Goldberg v. Delta Tau Delta, — Pa.Super.-,---, 613 A.2d 1250,-(Superior Court 1992).

Our review of the uncontroverted evidence indicates that Thiel College had an alcohol policy set forth in some detail. In certain aspects of regulation the college assumes specific responsibility — periodically checking lists to ensure compliance with attendance numbers and fire codes, periodic inspections and recordation of beer keg serial numbers to ensure limited amounts of alcohol, and shutting down parties after the scheduled closing time of 1:00 am.

However, in the stated policy handbook given to students, it is clear that the college also accorded certain amounts of responsibility to college students as intelligent, responsible members of society. The host of the function is charged with ensuring that the laws of the Commonwealth of Pennsylvania are complied with.

Depositions of the students involved with the planning of alcohol-related events reveal that the school did enforce the regulations at least on a partial basis.

The most recent pronouncement of the law of social host liability from our supreme court was in Alumni Association v. Sullivan, supra, in 1990, in a similar case. There, an eighteen year old freshman at Bucknell University attended a party at his dormitory where he was served alcohol. He then attended a party at a fraternity at the fraternity house where he again was served alcohol. A fire broke out which damaged the neighboring fraternity house. The freshman and a companion were sued for $400,000 in damages for allegedly negligently starting or failing to control the fire, they joined the party host fraternity (Kappa Chapter and National) and Bucknell University as defendants, alleging that the additional defendants were negligent in serving alcohol to minors, and this negligence proximately caused the conduct resulting in the fire.

The students alleged in that case that this court erred in refusing to extend the rationale found in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983) to cover such a situation. In Congini, the Pennsylvania Supreme Court noted that for liability to attach to a social host, he must have “knowingly furnished” alcohol to a minor. In Alumni Association, this court and subsequently our supreme court declined to extend that rationale to include a situation where the social host “should have known” that alcohol was being provided on their premises.

The Third Circuit, in Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3d Gir.1986), chose to take a somewhat different approach. When confronted with the defense argument that alcohol was not furnished to the minor, that court noted that a requirement of physically handing a beer to a minor did not reflect the principle announced in Congini. The third circuit there interpreted the Pennsylvania Supreme Court’s test of “knowingly furnished” as enunciated in Congini to include aiding, assisting, or attempting to aid or assist someone in allowing the consumption of alcohol by a minor.

Appellant’s claim is also founded on the assertion that that the national fraternity rendered substantial assistance in consumption of alcohol by a minor in that it counseled the chapter how to conduct parties and avoid civil liability, and that the school assisted in its haphazard enforcement of the alcohol policy which encouraged drinking by minors, allowing parties to include alcohol, and allowing the installation of a bar in the basement of a fraternity house on campus, belonging to the school, where the campus was 70% under the legal age for drinking.

The evidence does not support appellants claim vis a vis the national fraternity. In fact, the national fraternity counsels against the use of alcohol. The appellant points us to a statement by one fraternity member that the national fraternity counseled the chapter to avoid potential liability by not having “open” parties. Even this statement indicates that the national fraternity counseled away from access to alcohol by suggesting that the chapter never have any open parties, where alcohol access was unrestricted.

Furthermore, the national fraternity is not in a position to control the action of its chapters. It is based in Indiana, and Thiel College is in Greenville, Pennsylvania. In addition to the lack of geographic proximity which would defeat any attempt at day-to-day control, we note our supreme court has unequivocally stated that a National Fraternal Organization is not under a duty to control the activities of its members.

It is equally clear appellee Sigma Chi Fraternity is an inappropriate body from which to require the duty urged by appellant. By definition such organizations are based upon fraternal, not paternal, relationships. National organizations do not have the ability to monitor the activities of their respective chapters which would justify imposing the duty appellant seeks. The national organization in fraternal groups has only the power to discipline an errant chapter after the fact. It does not possess the resources to monitor the activities of the chapter contemporaneous with the event. Fraternal organizations are premised upon a fellowship of equals; it is not a relationship where one group is superior to the other and may be held responsible for the conduct of the other. From this factual matrix, there is no basis in the relationship to expand the liability of the national body to include responsibility for the conduct of one of its chapters. Alumni Association, supra, 524 Pa. at 365, 366, 572 A.2d at 1213.

The school’s policy also counsels away from use of alcohol. The appellant’s complaint that allowing alcohol on campus when 70% of the students are underage is unpersuasive. The school policy handbook notes that:

[t]he legal drinking age in Pennsylvania is 21 years of age, and like any other state law, this one applies here on campus. The whole community has an interest in abiding by this law, not only to protect individuals from legal action, but to allow the college the freedom to make alcoholic beverages available on campus at appropriate times and places. (Handbook, at 52).

That the college allows that portion of students who are of legal drinking age to consume alcohol is not evidence that it aided or encouraged underage drinking. The evidence supports the opposite conclusion, and we reject appellant’s contention in this regard.

We also find unpersuasive the argument that the college, as landlord, allowing the local fraternity chapter to build a bar in the basement, and failing to monitor the consumption of alcohol, breached a duty to the students and decedent and was negligent. No representatives of the college were present when decedent was drinking at the fraternity house, and it cannot be shown that the college assisted in the procurement or distribution of the alcohol in any way. Nowhere can be found active encouragement by the college.

The alcohol in this case was not served from the fountain in the basement, it was served from a keg delivered for a party scheduled to begin several hours later. This was clearly a violation of the school’s alcohol policy, and not, as appellant asserts, sanctioned by the administration of Theil College. Therefore, the trial court was correct in granting motion for summary judgment on this issue, as neither the pleadings nor the evidence support a theory of liability under Pennsylvania law.

The final issue raised by appellant in this case is that the appellee Thiel College assumed a special duty to control the behavior of its students by implementing an alcohol policy and undertaking to enforce it. Our supreme court has addressed the thorny issue of college control of its students in Alumni Association, supra. In holding that a university was not under an obligation to control the activities of its students, the court stated as follows:

Appellant’s view would have us impose upon appellees a custodial relationship with University students. Clearly, in modem times, it would be inappropriate to impose an in loco parentis duty upon a university. Instructive on this point are the observations of Judge Aldisert in Bradshaw v. Rawlings, 612 F.2d 135 ([3d Cir.] 1979).

Our beginning point is a recognition that the modem American college is not an insurer of the safety of its students. Whatever may have been its responsibility in an earlier are, the authoritarian role of today’s college administrations has been notably diluted in recent decades. Trustees, administrators, and faculties have been required to yield to the expanding rights and privileges of their students. Id. at 138, Alumni Association, 524 Pa. at 364, 365, 572 A.2d at 1213.

We find this reasoning applicable. A college may not “control” the behavior of its students as may have been possible in the past. The fact that an alcohol policy was implemented to give the college the ability to allow alcoholic beverages to those who were of legal drinking age does not give rise to a special duty to control the actions of those students who are determined to acquire intoxicating beverages, even though they are underage.

Furthermore, when we examine the facts of this particular instance, it becomes abundantly clear that no amount of “control” or “supervision” by the college during the party would have prevented the decedent from imbibing beer. The party was scheduled to begin at the Lambda Chi Alpha house in the evening — from 8:00 pm to 1:00 am. As fate would have it, the kegs arrived shortly after noon, the resident students decided to tap them earlier than allowed, and sit in a hot tub they had specially set up for the homecoming party. The decedent was seen drinking beer at the house before he left on his motorcycle. Shortly thereafter, he was fatally injured in a collision with an automobile. This entire series of events occurred before the party had begun. Even had the College been vigorously checking identification at the function, this tragedy would not have been avoided.

Therefore, as there was no issue of material fact to be resolved, the defendants were entitled to judgment as a matter of law, and we reject this final claim.

Order affirmed.

      . The negligence claims against John Osborne, relating to his operation of a motor vehicle, are not the subject of this appeal and are not addressed.

      . The following are excerpts from the Thiel College Handbook:
      Thiel College believes that its students are mature persons who are attending an institution of higher learning for serious purposes. Therefore, the college believes that all students should accept responsibility for their behavior. (Handbook, at 32). ... violations which will result in some form of sanction ... [include] ... [t]he possession, transportation, consumption or sale of alcoholic beverages on college property, except as is stipulated in the college’s alcoholic beverages policy. (Handbook, at 35).
      ALCOHOLIC BEVERAGES. Consumption — Only students who are 21 years of age and their guests who are 21 years of age may have possession of and consume alcohol in students’ rooms on campus. (Handbook, at 44).
      Alcohol Policy Implementation — The use of alcohol on the Thiel campus is a privilege. It is not a given right. Furthermore, inappropriate behavior (i.e. disorderly conduct, intoxication, harassment) as a consequence of alcohol consumption will not be tolerated. This type of behavior will be considered as a violation of the student conduct code and result in appropriate sanctions. Thiel college supports the laws of the Commonwealth of Pennsylvania. The responsibility of upholding these laws also rests with the student.
      The use of alcohol at organized functions on weekends will be permitted only in recreation rooms and upon registration and approval of the Student Development Services Office. At other times, there shall be no alcohol consumption in the common areas of the campus.
      Specific adherence is expected to the following:
      1. All parties on campus will be "closed”. This means that all parties will be by invitation, and only those students who are invited may attend.
      2. Total number of hosts and invited guests will not exceed the limit established by law relating to capacities of rooms. This means invitations to parties in a fraternity recreation room will not exceed 150. Invitation to parties requested for recreation areas of other residence halls will be limited to the number authorized by fire laws for those areas.
      3. No all-campus or open to the public parties are to occur. Off-campus guests will be by invitation only and must be hosted by Thiel student. Invitation lists will include this information.
      4. It is understood that charging at the door or selling tickets is unacceptable behavior.
      5. All groups requesting an official function will develop an invitation list and will share that list with the Dean’s Office or his staff upon request.

        6. Beer and wine in appropriate amounts will be permitted at organized alcohol events. The use of hard liquor is prohibited.
      7. The quantity of beer and wine available will be determined by the approved number of participants and the space utilized for the function.
      8. No more than three one-half kegs will be approved for any one function. Sponsors of functions where alcohol is approved will provide a non-alcoholic beverage (as per function form) other than soda machines.
      9. Serial numbers of beer kegs will be registered with security, and are subject to periodic inspection throughout the course of the event.
      10. All alcohol-related events will end at 1:00 a.m. Areas approved for such events must be cleared by that time. Functions will "wind down” one-half hour prior to the stated time for ending. This will include turning off the sound system and discontinuing further service of beverages. For functions ending at 1:00 a.m., "wind down" time is 12:30 a.m.
      11. Sponsors of functions will be required to monitor access and will maintain the invitation log for the event. Sponsors will be held accountable for appropriate monitoring.
      12. Security staff and staff of the Dean’s Office will monitor functions on a regular basis. Groups requesting a function agree to full cooperation in that monitoring.
      13. The persons requesting an alcohol-related event are responsible for the conduct of their guests and for seeing that state laws are upheld.
      14. All registration for any alcohol event will be submitted at least three days in advance.
      As with all events on campus, students shall demonstrate appropriate behavior. Failure to meet with these standards of behavior, and violations of the alcoholic guidelines, will result in disciplinary action. The alcohol policy is subject to continued review and possible revision. (Handbook, at 45-46).
      The legal drinking age in Pennsylvania is 21 years of age, and like any other state law, this one applies here on campus. The whole community has an interest in abiding by this law, not only to protect individuals from legal action, but to allow the college the freedom to make alcoholic beverages available on campus at appropriate times and places. (Handbook, at 52) (All emphasis in originals).

      . See, e.g., Deposition of Drew Hicks, at 13-16, Deposition of Dale Nye at 14-17, and Deposition of Mark Adams, at 16-17 and 21.

      . Lambda Chi Alpha’s General Assembly passed the following resolution in 1984:
      POLICY ON ALCOHOLIC BEVERAGES
      Recognizing its responsibility for the social well-being and welfare of its members; and with the objective that the social atmosphere and environment of its chapters be one in harmony with the spirit and ideals of this Fraternity; Lambda Chi Alpha Fraternity adopts this policy related to the use of alcoholic beverages.
      (1) The possession, consumption, and distribution of alcoholic beverages on the premises of any chapter or colony or at any entertainment or function given in the name of or for the benefit of Lambda Chi Alpha Fraternity, shall not be in conflict with institutional, state or local regulations and policies.
      (2) There shall be.no illegal sale of alcoholic beverages by a chapter or colony to the general public.
      (3) There shall be no social activities which are classified as “open parties" that are characterized by unrestricted and/or public access tó alcoholic beverages.

      (4) Chapters are directed to develop a comprehensive alcohol awareness program of education on the responsibilities and liabilities of alcohol possession, consumption, and distribution. (Emphasis Added).

      . The Lambda Chi Alpha Fraternity is structured in two levels. The local chapter is responsible for functioning at a local level, planning chapter functions and running the chapter operations. The National level is a separate Corporation, based in Indiana which generally oversees the chapters at different universities across the country, keeping "ritualistic" conformity and operating pursuant to a constitution which states the purpose as, inter alia, maintaining an order whose “ritual and symbolism shall be secret”, "encouraging and inspiring fraternal feeling and cooperation", "forming unselfish and loyal friendships among its members", and to provide "better government" and promote "more perfect unity” (Preamble and Article II of Lambda Chi Alpha's Constitution, at 1-2). When plaintiff served interrogatories, the national organization answered them and assumed the role of defendant in this case. It is important to note that the analysis in this decision is directed to the fraternity at the national level, and we offer absolutely no opinion as to the liability of the local chapter for the events in question, as summary judgment was granted to the national fraternity, Lambda Chi Alpha, Inc. only.

      . According to the form filed with the Thiel College administration by the local fraternity chapter.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    611 A.2d 721
    Richard COOPERSTEIN, Executor of the Estate of Elsie Cooperstein, Deceased, and Ruth A. Gorneau, Administratrix of the Estate of Anne Nathan, Deceased, Appellants, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY and Jack Cooperstein.
    Superior Court of Pennsylvania.
    Argued March 19, 1992.
    Filed June 18, 1992.

      Lawrence S. Rosenwald, Philadelphia, for appellants.
    L. Rostaing Tharaud, Philadelphia, for appellees.
    Before CAVANAUGH, OLSZEWSKI and BECK, JJ.
   BECK, Judge:

This is an appeal from an order granting appellees’ motion for summary judgment. Upon review of the record, oral argument and briefs, we find that the trial court did not err. We affirm.

The facts found by the trial court are as follows:
[Appellants] are Richard Cooperstein, Executor of the Estate of Elsie Cooperstein and Ruth Gomeau, Administratrix of the Estate of Anne Nathan. [Appellees] are Liberty Mutual Fire Insurance Company and Jack Cooperstein.
On October 18,1985, Jack Cooperstein negligently operated his automobile, resulting in a collision with an automobile operated by Ernest Powell. Elsie Cooperstein, Jack Cooperstein’s wife, and Anne Nathan, his sister-in-law, died as a result of injuries sustained in this collision. At the time of the collision, Jack Cooperstein was insured by Liberty Mutual with a policy insuring three automobiles.
[Appellee], Liberty Mutual Fire Insurance Company, paid $50,000.00 to Mr. and Mrs. Powell for injuries they sustained in this collision and paid $25,000.00 to the Estate of Elsie Cooperstein and $25,000.00 to the Estate of Anne Nathan. All payments were made pursuant to the liability provision of [appellee] Cooperstein's policy.
Appellants have asserted a claim pursuant to the under-insured motorist provisions of Jack Cooperstein's policy, while [appellee], Liberty Mutual Fire Insurance Company, has refused to tender any sums to either [appellant] under the underinsured motorist claims.

Appellants instituted the instant declaratory judgment action on October 16, 1987, seeking to supplement their liability recovery with underinsured recovery from the same policy. Subsequently, counsel filed cross-motions for summary judgment. On June 11, 1991, the trial court granted appellees’ motion for summary judgment and denied appellants’ motion. Appellants then filed this timely appeal.

Jack Cooperstein’s policy contains the following relevant provisions:

UNINSURED/UNDERINSURED MOTORIST COVERAGE — PENNSYLVANIA INSURING AGREEMENT

In addition, ‘neither uninsured motor vehicle’ nor ‘under-insured motor vehicle’ includes any vehicle or equipment: 1. Owned by or furnished or available for the regular use of you or any family member.

LIMIT OF LIABILITY

Any amounts otherwise payable for damages which the covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury caused by an accident, shall be reduced by all sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A.
Any payment under this coverage will reduce any amount that person is entitled to recover for the same damages under Part A.
On appeal, appellants raise the following challenges:
1) The trial court erred in holding that appellants are not entitled to coverage due to the existence of a “family car exclusion” on the policy, where the language of such policy creates an affirmative right to recovery under both the liability and underinsurance provisions of the policy, and when the presence of such exclusion creates an ambiguity in the policy which should have been resolved in favor of the plaintiff so that the exclusion must be invalidated on these grounds or because the exclusion is void against public policy.
2) If appellants are entitled to underinsurance coverage, as a class one insured and a third party beneficiary under the policy, are they entitled to treat appellee’s policy as three separate policies and stack the coverage to afford $300,000.00 in coverage under such policies to appellants. 3) If appellants are entitled to stack the underinsurance coverage, is appellee entitled to a setoff for liability payments and what, if any, is the amount of such setoff.

When summary judgment has been granted, the standard of review is as follows: an order granting summary judgment will not be reversed unless the trial court has committed an error of law or clearly abused its discretion. West Penn Power Co. v. Piatt, 405 Pa.Super. 467, 592 A.2d 1306 (1991). Summary judgment is to be entered only in those cases that are clear and free from doubt, where the uncontroverted allegations of the pleadings and the other permissible material filed in support of and in opposition to the motion reveal that there is no genuine issue as to a material fact and that the movant is entitled to judgment as a matter of law. Krause v. Great Lakes Holding, Inc., 387 Pa.Super. 56, 563 A.2d 1182 (1989). In the case sub judice, the facts are undisputed and the legal question is whether the trial court erred in granting appellees’ motion for summary judgment.

Appellants argue that the Estates of Elsie Cooperstein and Anne Nathan are entitled to underinsured motorist coverage because the language of Jack Cooperstein’s policy creates an affirmative right for all insureds to recover under both the liability and underinsured motorists provisions of the policy, even with the existence of a “family exclusion” in the policy. We disagree. The trial court correctly determined that neither estate is entitled to under-insurance benefits under appellees’ insurance policy.

It is well established in Pennsylvania that an injured plaintiff (or her estate) is precluded from recovering under the liability and underinsurance motorist coverages of the same motor vehicle insurance policy. Sturkie v. Erie Insurance Group, 407 Pa.Super. 117, 595 A.2d 152 (1991); see also Newkirk v. United Services Automobile Association, 388 Pa.Super. 54, 564 A.2d 1263 (1989), appeal denied, 528 Pa. 624, 597 A.2d 1153 (1990); Wolgemuth v. Harleysville Mutual Insurance, 370 Pa.Super. 51, 535 A.2d 1145 (1988) (en banc), appeal denied, 520 Pa. 590, 551 A.2d 216 (1988). Even where the policy does not explicitly preclude such a recovery, a claimant cannot recover third party liability benefits and underinsured motorist coverage from the same policy. Sturkie, supra.

The public policy behind this preclusion is well articulated in Wolgemuth, supra:

The language of the statute itself suggests that underinsurance motorist coverage requires the existence of at least two applicable policies of motor vehicle insurance. See 75 Pa.C.S. § 1731(c). An underinsured motor vehicle must, by definition, be an insured vehicle. Thus the statute contemplates one policy applicable to the vehicle which is at fault in causing the injury to the claimant and which is the source of liability coverage (which is ultimately insufficient to fully compensate the victim), and a second policy, under which the injured claimant is either an insured or a covered person. It is the second policy which the statute contemplates as the source of underinsured motorist coverage, where the liability coverage provided by the first policy of insurance is insufficient to fully compensate the claimant for his injuries.

370 Pa.Super. at 58, 535 A.2d at 1149 (emphasis in original).

With this analysis in mind, we address whether the Estate of Anne Nathan is entitled to recover underinsurance benefits under the policy at issue. Like the injured passenger in Wolgemuth, supra, Anne Nathan was a guest passenger, a passenger with no contractual relationship with the insurer, who had paid no premiums for such coverage and who had no reasonable expectation as to coverage under a policy issued to Jack Cooperstein. In declining to permit both underinsurance and liability coverage under a single insurance policy, Wolgemuth left open the possibility that “an insured, as that term is defined by the Motor Vehicle Financial Responsibility Law [“MVFRL”], could, under certain circumstances, recover under both the liability and underinsured motorist provisions of a single policy.” 370 Pa.Super. at 58, 535 A.2d at 1149. Anne Nathan is clearly not an “insured” under the MVFRL which defines “insured” as “any of the following”:

(1) An individual identified by name as an insured in a
policy of motor vehicle liability insurance;
(2) If residing in the household of the named insured:
(i) a spouse or other relative of the named insured; or
(ii) a minor in the custody of the named insured or relative of the named insured.
75 Pa.C.S. § 1702.

Under Wolgemuth, therefore, the Estate of Anne Nathan is not entitled to recover both liability and underinsurance benefits under Jack Cooperstein’s policy.

With regard to the ability of the Estate of Elsie Cooperstein to recover underinsurance benefits and liability benefits under a single policy, we turn to the case of Newkirk, supra. Any doubt that the public policy governing second class beneficiaries such as Anne Nathan also governs first party beneficiaries such as Elsie Cooperstein was eliminated by this court in Newkirk. In that case, a panel of our court addressed a fact pattern similar to the one at hand. The injured passenger was the wife of the owner and operator of the vehicle in which she suffered the injuries for which underinsurance coverage was sought. That case also involved a déclaratory judgment action, in which the plaintiff claimed a right to recover under both the liability and underinsured benefits provisions of a single motor vehicle insurance policy which had been issued to her husband. The policy in question included a provision that any vehicle owned by or furnished or available for the regular use of a family member could not be considered an underinsured motor vehicle. The court held that such a policy provision precluded recovery under both policy coverages sought by the plaintiff.

As in Wolgemuth, the Newkirk court emphasized the legislative intent behind the underinsurance motor vehicle coverage provisions of the MVFRL: the legislature did not intend for an individual to recover third party liability benefits and first party underinsurance motorist benefits from the same automobile insurance policy:

Our legislature enacted underinsured motorist coverage to resolve the inequities which resulted when only uninsured motorist coverage was mandatory and a claimant who had purchased uninsured motorist coverage was involved in a car accident with an underinsured motorist rather than an uninsured motorist. Our legislature thus intended underinsured motorist coverage to operate in the same manner as uninsured motorist coverage only for motorists who were injured by underinsured motorists.

388 Pa.Super. at 63-64, 564 A.2d at 1267-68.

The public policy concerns articulated in Wolgemuth and Newkirk determined the outcome of Caldararo v. Keystone Insurance Policy, 393 Pa.Super. 103, 573 A.2d 1108 (1990), appeal denied, 525 Pa. 640, 581 A.2d 567 (1990), wherein a family exclusion clause identical to that in the instant matter barred recovery of underinsured motorist benefits by an insured who was injured while he was a passenger in a car he owned that was being driven by his wife. These policy concerns are also highlighted in Sturkie, supra, where the plaintiff was precluded from recovery of underinsurance benefits from the policy of the driver of a second car under which he had recovered liability benefits, even in the absence of a family exclusion.

The above public policy concerns apply with equal force to the determination of the entitlement of the Estate of Elsie Cooperstein to underinsurance benefits under Jack Cooperstein’s policy. As the Estate has already recovered liability benefits, it cannot also recover underinsurance benefits under Jack Cooperstein’s policy. Newkirk, supra.

Appellants make several arguments challenging the trial court’s conclusion that they are not entitled to underinsurance coverage under Jack Cooperstein’s policy. First, appellants attempt to distinguish the facts of this case from those of Wolgemuth and Newkirk. They argue that unlike the single policies involved in Wolgemutk and Newkirk, the Cooperstein policy is a multiple-vehicle policy and should be considered as three separate policies. We decline to find that this single policy should be considered several separate policies. Appellee Jack Cooperstein purchased one automobile insurance policy from appellee Liberty Mutual. This policy insures three vehicles. Appellants have offered no reason to interpret the policy as three separate policies, nor have they indicated caselaw which supports their contention. As such, we find this argument to be without merit.

Second, appellants argue that the family car exclusion found in Jack Cooperstein’s policy is void as against public policy pursuant to this court’s decision in Marroquin v. Mutual Benefit Insurance, 404 Pa.Super. 444, 591 A.2d 290 (1991).

Marroquin involved a situation where the plaintiff was struck by a vehicle owned and operated by his brother who carried an insurance policy in his name on that vehicle. At the time, both brothers resided with their parents, who had separate policy coverage with the same carrier on two vehicles. The parents’ coverage provided liability coverage for family members. The insurer denied a claim by the plaintiff for underinsurance benefits under the parents’ policy after he recovered under the liability coverage of his brother’s policy. The court held that the family car exclusion in the underinsured motorist policy was void as against public policy and therefore the resident family member was eligible to receive underinsurance benefits where the tortfeasor was another resident family member covered by his own policy of liability insurance.

As Marroquin involved two separate insurance policies, it is entirely distinguishable from the case at hand. We do not need to decide whether Marroquin has the effect of voiding the family car exclusion in Jack Cooperstein’s policy, because even if Marroquin required us to find that the family car exclusion in our case is void, the Estate of Elsie Cooperstein would be precluded from recovery for both underinsurance and liability under the same policy, see Wolgemuth and Newkirk, supra. A panel of this court in Sturkie, supra, declined to allow both underinsurance and liability recovery under a single policy which did not even contain a family car exclusion. The only effect of Marroquin on the case at hand is that it reaffirms the principal that more than one policy of insurance is necessary for recovery of underinsured motorists benefits. It does not affect our determination based on Wolgemuth and Newkirk that appellants are not entitled to both liability and underinsurance benefits based on a single insurance policy.

Finally, appellants contend that unlike the insurance policies involved in Wolgemuth, Newkirk and Sturkie, supra, Jack Cooperstein’s policy creates an affirmative right to recovery under both the liability and underinsurance provisions of its policy. The affirmative right, they argue, when viewed in the context of the entire policy, creates an ambiguity as to the family car exclusion which must be resolved in favor of appellants. We disagree.

Appellants point to the following provision which they claim creates an affirmative right to recover both underinsurance and liability benefits:

LIMIT OF LIABILITY

Any amounts otherwise payable for damages which the covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury caused by an accident, shall be reduced by all sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A.
Any payment under this coverage will reduce any amount that person is entitled to recover for the same damages under Part A.

Our reading of the policy does not indicate that any affirmative right to recover both underinsurance and liability coverage is created by this provision. The subject of this section, as indicated by the title, is the limits of recovery available to a person who has been determined to be covered by the insuring agreement. Nowhere does the section or any part of it purport to establish any entitlement or right to coverage, a function restricted by the INSURING AGREEMENT section. Indeed, the language and substance of the LIMIT OF LIABILITY section presuppose familiarity with and understanding of the definitions and concepts of the previous sections of the schedule.

The clear import of both the language and substance of these paragraphs is to reduce potential recovery of benefits, not to create a new right to recovery or otherwise expand coverage. Moreover, the clauses presuppose that coverage has already been determined. They obviously cannot limit or set off “coverage” that has already been excluded, such as through the family exclusion.

The language of this policy does not clearly create a right to recover underinsurance benefits as well as liability benefits under Jack Cooperstein’s policy. A reading of this paragraph in the context of this entire policy does not affect our earlier determination that appellants are not entitled to underinsurance coverage under Jack Cooperstein’s policy. As no affirmative right to recovery has been created by the language of this policy, we have the same situation as in Sturkie, supra, wherein an insurance policy which did not explicitly address whether a claimant could recover under both the liability and underinsurance coverage provisions of the same policy was found not to entitle the injured plaintiff to recover both underinsurance and liability benefits under a single policy. As in Wolgemuth and Newkirk, the Sturkie court based its decision primarily on the legislative intent behind the enactment of the underinsured motor vehicle coverage provisions of the MVFRL.

As appellants are not entitled to underinsurance coverage under Jack Cooperstein’s policy, we need not address appellants’ remaining contentions which are premised upon our finding that appellants are entitled to underinsurance coverage.

Finding appellants’ challenges to be without merit, we affirm the order of the trial court.

Order affirmed.


author: KELLY, Judge. DEL SOLE, J.,

text:
    611 A.2d 727
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert J. ELLIOT, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1992.
    Filed June 19, 1992.
    Reargument Denied Aug. 19, 1992.

      Laurie Magid, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Sarah Kerr, Philadelphia, for appellee.

      Before CIRILLO, DEL SOLE and KELLY, JJ.
   KELLY, Judge.

In this opinion we are called upon to determine whether a warrantless vehicle search at a police station is permitted following the removal of the vehicle from the scene of the occupants’ arrests to the police station where probable cause would have justified an on the scene search. We find such a search proper and reverse the order of the trial court suppressing the evidence seized as a result of the search.

We begin by observing that when reviewing the Commonwealth’s appeal from the decision of a suppression court, we must consider “only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.” Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990). When the evidence supports the trial court’s findings of fact, we may reverse only when the legal conclusions drawn from these facts are erroneous. Id.

I. Facts and Procedural History

We find that the trial court’s findings of fact have adequate support in the record, and we will adopt them as our own for purposes of the instant appeal. The relevant findings of fact for our purposes are:

3. Police Officer James Coolen testified that on 7 August 1989, Philadelphia police, acting information provided by an unidentified informant, were conducting a surveillance of a parking lot at Roosevelt Boulevard and Welsh Road. The informant had told Police that a drug transaction was to occur that day between a white male know as “Gary” who would be driving a black Chevrolet Camaro Z-28, Pennsylvania license plate number YNB545 and another white male known as Frank McCloskey who would be driving a gold Buick, Pennsylvania license plate number TB4435. The transaction was to occur between 5:00 P.M. and 6:00 P.M. that day.
4. At 5:44 P.M., Officer Coolen observed two vehicles matching the informant’s description pull into the parking lot and stop their vehicles next to each other. The driver of the Camaro, Mr. Gary Oslander, exited his vehicle and approached the driver’s side of the Buick. The driver of the Buick was Mr. Frank McCloskey and seated in the passenger side was Mr. Robert Elliot [appellant herein].
5. Officer Coolen further testified that he observed Mr. Elliot show Mr. Oslander a clear plastic bag containing a white powder. At that point in time all three men were arrested and the bag confiscated. A second bag containing white powder was recovered from the Camaro.
6. At no point in time did either money or contraband change hands.
7. Officer James Coolen entered the Buick in order to drive it to the Police District. The Officer observed an STP can in a plastic bag on the front seat. The Officer moved the can to the back seat of the car and transported the car to the Police District.
8. The Police then took a K-9 dog on a search through both vehicles. In reliance on the dogs indication, the Police took the bag containing the STP can from the car.
9. The can was removed from the bag and, after further examination, it was found to have a false bottom. Inside the can were two additional Ziploc bags containing white powder.
10. The search of the interior of the car was conducted without a search warrant while in police custody. The subsequent examination of the STP can and search of its contents was also conducted without benefit of a warrant.

Trial Court Opinion, 7/2/91 at 2-3. From these findings of fact, the trial court concluded that 1) the facts presented were insufficient to provide the officers with probable cause for a warrantless search of closed containers within the automobile; and 2) the use of a K-9 dog to examine the vehicle’s contents was not a proper procedure during an inventory search. Id. at 4-5.

On appeal the Commonwealth raises several arguments supporting its conclusion that the trial court erred in suppressing the contents of the STP can. Because we find that the trial court erred in concluding that probable cause was lacking, we need not address the Commonwealth’s remaining arguments.

II. Probable Came

The Commonwealth contends that the officers had probable cause to search the car as soon as they had arrested appellant for possession of a controlled substance. Because the officers had observed appellant attempting to sell drugs from an automobile, it argues that it was well within reason for the officers to believe that other narcotics may be hidden in the vehicle. Accordingly, because the officers had probable cause related to the occupants of the vehicle, the Commonwealth concludes that the officers had probable cause to believe that further evidence of crime may be found in the vehicle and the subsequent warrantless search of the vehicle was lawful.

Appellee counters that once the car was impounded, any exigent circumstances had been removed. Thus, the Commonwealth, in order to search the vehicle, was required to secure a warrant.

Recently, in Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991), our Supreme Court reaffirmed the principle that, “where there is probable cause related to the vehicle or its occupants, and where the exigencies of the situation compel an immediate search of the vehicle, a warrantless search of an automobile does not offend the Fourth Amendment.” Id., 526 Pa. at 272, 585 A.2d at 990. Once the requirement of probable cause is satisfied, the exigencies regarding the inherent mobility of a vehicle and inadequate time to obtain a search warrant render a warrantless vehicle search proper even when the accused is in police custody. Commonwealth v. Baker, 518 Pa. 145,149, 541 A.2d 1381, 1383 (1988). This same probable cause also justifies the search of every part of the vehicle and its contents that could conceal the object of the search. Commonwealth v. Rodriguez, supra, 526 Pa. at 273, 585 A.2d at 590.

In Commonwealth v. Jenkins, 401 Pa.Super. 580, 585 A.2d 1078 (1991), this Court was faced with a factual scenario similar to the case sub judice. In Jenkins, an undercover police officer had observed the defendant engage in what appeared to be several drug transactions after having removed packets of white powder from the trunk of a vehicle. Based on his training and experience, the officer placed appellant under arrest. Once the defendant was placed under arrest, the officers on the scene opened the trunk of the vehicle and seized and searched a large yellow plastic bag found to contain cocaine. Prior to trial, appellant moved to have the evidence suppressed. The trial court held that, “because there were no exigent circumstances excusing the police’s failure to obtain a search warrant, nor was the search conducted, incident to a lawful arrest given the defendant’s removal from the vehicle and being restrained by the second officer, the absence of a search warrant was fatal to the Commonwealth’s case.” Id., 401 Pa.Superior Ct. at 583, 585 A.2d at 1080. On appeal, this Court reversed, finding that once the officers had observed the defendant engaging in criminal activity from within his vehicle, the officers had probable cause to arrest the defendant and to believe that evidence of crime would be found within the vehicle. Accordingly, probable cause justified the warrantless search of the vehicle and any of its contents which could have concealed the contraband. Id., 401 Pa,Superior Ct. at 590, 585 A.2d at 1084.

In the instant case, the officers were lead to the scene by an unidentified informant who tipped off the police to the drug transaction. When the police arrived at the scene, the very cars described arrived within the one hour time frame the informant gave them. Shortly thereafter, the police observed appellant within one of the cars showcasing a clear plastic bag containing a white powdery substance. Under these circumstances, there was more than sufficient probable cause to arrest and search the car. See Commonwealth v. Jenkins, supra. The trial court's finding to the contrary is simply unsupportable.

The trial court also found that because the vehicle had been removed from the scene of the arrests to the police station, the exigencies were no longer present; hence, the warrantless vehicle search was improper. We find such reasoning to be in error.

In California v. Acevedo, 500 U.S.-, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), the Supreme Court had occasion to address the very argument appellee and the trial court relied on, i.e. once the exigency of the situation no longer exists, even if police have probable cause, they must obtain a search warrant in order to search an impounded vehicle. In Acevedo, the Court recognized that the exigency requirement had been refined in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) so that “the existence of exigent circumstances was to be determined at the time the [automobile is] seized.” California v. Acevedo, supra, 500 U.S. at-, 111 S.Ct. at 1986, 114 L.Ed.2d at 627. Thus, in Chambers, although the warrantless vehicle search actually took place at the police station when the car was immobilized, because probable cause and exigent circumstances were present at the time the vehicle was stopped, the warrantless search at the station house was constitutionally permissible. Id. Accordingly, the Acevedo Court concluded that once “the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle.” Id. (emphasis added).

Applying the foregoing principles to facts sub judice, it is clear that the officers had probable cause to believe evidence of a crime, i.e. narcotics, was concealed within the car at the time of the arrests. The inherent mobility of the vehicle, even with appellant and the driver in custody, provided the necessary exigency for an on the spot warrant-less search of the vehicle and any containers found therein which could conceal the object of the search, narcotics. With probable cause and exigency present, the officers most assuredly could have employed the drug detection dog on the spot during their search of the vehicle. Commonwealth v. Johnston, 515 Pa. 454, 466, 530 A.2d 74, 79 (1987) (the use of a narcotics detection dog does not offend constitutional principles where officers can articulate reasonable grounds for believing drugs may be present in a given location and are lawfully present when the dog sniff is conducted). As noted previously, the fact that the officers waited until the vehicle was immobilized at the police station does not affect the outcome.

III. Conclusion

Accordingly, since probable cause and exigent circumstances were present to justify a search of the vehicle at the scene of the arrest, a search warrant was not required. Nor were the officers required to obtain a search warrant to subsequently search the car once it had been impounded. Thus, the trial court erred in suppressing the cocaine found in the STP can.

Order reversed. Case remanded for trial.

DEL SOLE, J.,

noted his dissent.

      . Appellee also argues that the Commonwealth has failed to preserve this argument since the Commonwealth did not rely on this particular theory to support its position at the suppression hearing. Review of the record reveals that the Commonwealth did not, in fact, raise the probable cause theory at the suppression hearing. It did, however, raise this theory in its petition to reconsider the suppression ruling filed with the trial court. Moreover, the trial court saw fit to address this claim on the merits. Under these circumstances, the claim is properly before us. See Commonwealth v. Sopota, 403 Pa.Super. 1, 8, 587 A.2d 805, 808 (1991) (en banc) (it is "improper for this Court to deem an issue waived for an alleged failure to preserve the issue for review when the trial court elected to address the issue on its merits.”), quoting Commonwealth v. Hewett, 380 Pa.Super. 334, 338, 551 A.2d 1080, 1082 (1988).

      . Due to our disposition of the Commonwealth’s probable cause argument, we need not address the Commonwealth’s remaining claims.


author: OLSZEWSKI, Judge:

text:
    611 A.2d 731
    COMMONWEALTH of Pennsylvania v. James Alexander MARTIN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 25, 1991.
    Filed June 22, 1992.

      Steven B. Molder, Easton, for appellant.
    Donald B. Corriere, Dist. Atty., Bethlehem, for Com., appellee.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   OLSZEWSKI, Judge:

James Martin appeals the judgment of sentence for rape and simple assault, imposed on June 14, 1991, by the Court of Common Pleas of Northampton County. Appellant’s conviction arose out of an incident which occurred May 17, 1990. Appellant lured his female victim to a secluded area, under the guise that appellant needed a ride to pick up his car in that area. When she sensed danger and attempted to flee, appellant forcibly detained the victim and raped her at knife point. Subsequent to the rape, appellant tied the victim’s hands and feet together and pushed her over an embankment, into a creek. Appellant then fled. The victim was eventually able to free herself, went to a nearby home, and phoned the police.

On March 22, 1991, appellant appeared before the Court of Common Pleas of Northampton County, the Honorable Robert Freedberg presiding. Appellant, with counsel, entered a plea of guilty to simple assault and rape. Sentencing was deferred pending preparation of a pre-sentence investigation. On June 14, after reviewing the pre-sentence report and making it available for review by appellant and his counsel, the court sentenced appellant outside the sentencing guidelines, to a term of ten-to-twenty years imprisonment for the rape, and a consecutive term of one-to-two years for the simple assault. On June 24, 1991, appellant filed a motion for withdrawal of his guilty plea, claiming it was entered involuntarily. Appellant claimed that he was not aware of the factors which could (and did) take his case out of the sentencing guidelines, and that a manifest injustice would result if he could not withdraw his plea. On July 1, 1991, the motion to withdraw the plea and a motion to reconsider sentence were both denied. This appeal followed.

In the instant case, appellant presents four instances of trial court error:

1. that his guilty plea was not entered voluntarily;
2. that appellant’s sentence is illegal because the simple assault charge merges with the rape charge;
3. that the court erred by issuing a sentence outside the sentencing guidelines, without sufficient basis or foundation;
4. that appellant’s sentence was excessive.

Finding no merit to these allegations of error, we affirm the judgment of sentence.

First, appellant posits that his guilty plea was not entered voluntarily. Appellant argues that if he had known that the sentencing judge was able to, and intent on, sentencing outside the guidelines, he would not have entered his plea. Appellant contends that the sentencing judge ignored the pre-sentence report, and that the judge was required to make more than a “passing reference” to the mere advisory nature of the guidelines. Appellant’s argument is misguided. We have noted that a “misplaced hope for a lighter sentence is not ground for withdrawal of a plea”. Commonwealth v. O’Brien, 273 Pa.Super. 198, 203, 417 A.2d 236, 239 (1979). We do not require that a defendant be pleased with the outcome of his decision to plead guilty. We require that a guilty plea be knowing, intelligent and voluntary. We disagree with appellant’s characterization of his guilty plea as anything less than knowing, intelligent and voluntary. To the contrary, the record reveals the care taken in the court’s acceptance of appellant’s guilty plea. The court informed appellant:

Q. When you plead guilty you give up all these rights I have just mentioned. You give up your right to a trial and you admit that you committed the crimes in this case, the crime of rape and secondly, the crime of simple assault. Do you understand that that is the effect of what you are doing here right now?
A. Yes, sir, your Honor.

Regarding the charge of rape, the following exchange occurred:

Q. It is an offense which is a felony of the first degree. It carries a possible prison sentence of up to 20 years in jail and a fine of up to $25,000.00. Do you understand that, sir?
A. Yes, sir, your Honor.

The court also advised appellant of the simple assault charge:

Q. ... Simple assault is a misdemeanor of the second degree and it carries a possible penalty of up to 2 years in jail and a $5,000.00 fine. Do you understand that, sir?
A. Yes, sir, your Honor.

Notes of testimony [N.T.], 3/22/91, at 6-7. In addition, the court advised appellant specifically about the court’s discretion in sentencing:

Q. The sentences that I have just described can be served consecutively. It is within the discretion of the court to impose consecutive sentences for these offenses. Do you understand? I’m not saying I will do it but I can do it under the law.
A. I don’t understand, your Honor.
Q. Well, I can impose a sentence for rape and another sentence for simple assault and make you serve one after the other or I can make you serve them both at the same time. [T]hat is called concurrent. Do you understand that, sir?
A. Yes, sir, your Honor.
Q. All right. I haven’t decided what I’m going to do. I’m telling you ... that I can do that. Is that clear, sir?
A. Yes, sir. [A]I1 right.

Id. at 7-8. Further, appellant was informed as follows: Q. Has anybody promised you anything to get you to plead guilty?

A. No, sir, your Honor.
Q. Nobody has promised you what the sentence will be, have they?
A. No, sir.
Q. The reason they cannot do that is because the sentence is strictly up to me. I haven’t decided what the sentence will be and I have made no commitment to anybody about how I’m going to sentence in this case. Is that clear, sir?
A. Yes, sir, your Honor.

Id. at 11.

Contrary to appellant’s assertion, the record reveals that appellant was aware of a possible twenty-two years imprisonment. More importantly, the guilty plea colloquy ably conducted by Judge Freedberg illustrates that appellant was fully aware of the implications of his decision to tender a plea. It was not error to deny appellant’s motion to withdraw it. We have held that a defendant will be permitted to withdraw a guilty plea only if he is able to show prejudice which results in a manifest injustice to the defendant. Commonwealth v. Vance, 376 Pa.Super. 493, 546 A.2d 632 (1988). To prove manifest injustice, a criminal defendant must show that his plea was involuntary or was entered without knowledge of the charge. Commonwealth v. Fenton, 388 Pa.Super. 538, 566 A.2d 260 (1989). In the instant case, appellant fails to demonstrate that he has suffered any prejudice which could even remotely be characterized as a manifest injustice. As demonstrated by the hearing excerpt set forth above, appellant’s plea was entered voluntarily and with full knowledge of the charges and the consequences of his decision. Appellant’s first argument fails.

Appellant’s second assertion of error is that his sentence is illegal. Appellant theorizes that the simple assault charge merges with the rape charge, and that it was error to sentence for both crimes. We disagree. Under the circumstances of the instant case, the simple assault and rape charges do not merge because there are separate factual predicates for each offense. The simple assault in this case is a separate crime because it occurred after, not in the course of the rape, and involves a separate set of actions accomplished outside of the rape.

Our Supreme Court has held that offenses merge where the elements of one offense are identical to and capable of being wholly contained within the elements of the other offense, and where the factual predicate for the lesser included offense is part of the factual predicate required to establish the greater offense. Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989). Clearly, the factual predicate for simple assault is not part of the rape in the instant case. When appellant bound the victim’s hands and feet together and pushed her over an embankment, the rape was already completed. The simple assault was not an essential part of the crime of rape; it was a separate crime for which a separate charge and sentence were properly imposed. See also Commonwealth v. Dotter, 403 Pa.Super. 507, 589 A.2d 726 (1991) (panel held that charges for aggravated assault and rape did not merge, because assault occurred after rape was completed). Accordingly, appellant’s second assertion of error cannot succeed.

Third and fourth, appellant requests our review of the discretionary aspects of his sentence. More specifically, appellant’s third allegation of error is that the court erred because it sentenced appellant without sufficient basis or foundation. Appellant’s fourth argument is that his sentence is excessive. We reiterate that we are not compelled to address every question set before this Court regarding discretionary aspects of sentencing. Rather,

[t]o reach the merits of a discretionary sentencing issue, we conduct a four part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa. R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 1410, Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc); Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985); (3) whether appellant’s brief has a fatal defect, Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), Pa.R.A.P. 2119(f); Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989); Commonwealth v. Ziegler, 379 Pa.Super. 515, 550 A.2d 567 (1988), Krum, supra; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). We are inclined to find the presence of a substantial question where appellant advances a colorable argument that the trial judge’s actions were either inconsistent with the specific provisions of the Sentencing Code, or contrary to the norms which underlie the sentencing process. Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987). See also Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988).

Commonwealth v. Zelinski, 392 Pa.Super. 489, 499-500, 573 A.2d 569, 574 (1990).

In addition, sentencing is within the sound discretion of the trial court, whose judgment will not be disturbed absent a manifest abuse of discretion. An abuse of discretion is demonstrated by a sentence that either exceeds the statutory limits or is patently excessive. Commonwealth v. Brown, 400 Pa.Super. 316, 583 A.2d 805 (1990). As we noted in Brown, we must accord great weight to a sentencing court because it is in the best position to view a defendant’s character, display of remorse, indifference, and the general nature of the crime. Brown, 400 Pa.Superior Ct. at 331, 583 A.2d at 812-813.

In the instant case, appellant has filed a timely notice of appeal (docket entry number 18, dated July 12, 1991), and a motion for reconsideration of sentence (docket entry number 12, dated June 24, 1991). Thus, he satisfies the the first two prongs of the test set forth in Zelinski, supra. Appellant, however, fails the next element. The brief for appellant does not contain a “Statement of Reasons Relied Upon for Allowance of Appeal,” in compliance with Pa.R.A.P. 2119(f). Ordinarily, we would find appellant’s discretionary sentencing arguments to be waived. In this case, however, the Commonwealth has failed to object to this defect and we are not precluded from reviewing appellant’s claim. See Commonwealth v. Penrod, 396 Pa.Super. 221, 578 A.2d 486 (1990) (panel elected to waive defect of failure to include a Statement of Reasons Relied Upon for Allowance of Appeal with respect to discretionary aspects of sentencing; Commonwealth had not objected to absence of this statement). The fourth prong in Zelinski, supra, is that appellant’s arguments must constitute substantial questions under the Sentencing Code. We find that they do not. In the interest of finality, however, we will address the substance of appellant’s third and fourth arguments.

The sentencing judge’s non-compliance with the sentencing guidelines is the basis of appellant’s third argument. Our Supreme Court has held that where (as here) a pre-sentence report exists, there is a presumption that the sentencing judge was aware of and adequately considered information relevant to the defendant’s character as well as any mitigating statutory factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Furthermore, a sentencing judge is not required in every case to sentence within the sentencing guidelines. Rather, the guidelines are advisory. See 42 Pa.C.S.A. § 9721; see also Commonwealth v. Frazier, 347 Pa.Super. 64, 500 A.2d 158 (1985). In sentencing, the court is guided by the general principle that the sentence imposed should be the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9721(b). Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990). However, if a sentencing judge elects to sentence outside of the guideline ranges, he or she is required to set forth on the record the reasons for so doing. Id., 395 Pa.Superior Ct. at 558, 577 A.2d at 930.

Appellant’s characterization of the sentence as ill-supported is flatly contradicted by the record. The sentencing judge postponed sentencing until he received and read the pre-sentence report. N.T., 3/22/91, at 13. At the time of sentencing, the court stated the following:

[I]n sentencing you I’m required to balance the positives and the negatives, and I’m prepared to do that. I look not only at the nature of the offense, but also at your background and your penalty in deciding what’s appropriate.
I have to consider the circumstances revealed by the plea, the circumstances of the case, as well as your character. And I'll tell you quite frankly, sir, that in your case the negatives are very apparent. The positives are virtually not existent.
I am particularly concerned in this case, Mr. Martin, because of the prior sexual offense and your record of the prior rape. You raped again less than one month after your release. You attempted injury to the victim, tying her up and throwing her into a stream. It came in as a simple assault rather than an aggravated assault as a result of a negotiated plea. [Q]uite clearly there was an intent to do serious harm to the victim here.
There is no evidence of remorse displayed by you in this matter, and another negative, quite frankly, is that a
knife was used here____ I can’t find any positives in the
picture here.
He’s quite clearly a dangerous offender, dangerous to the community. He raped again within a month after he g[ot] out of a program designed to deal with sexual offenders.
******
I believe, sir, that you are a dangerous offender. I think that for the protection of the public, it’s essential that you be isolated from the public.
******
This is one of those cases where the circumstances require isolation for an extended period of time. I have balanced all the equities in this matter and I’ve outlined them in my colloquy here today. I’m not sentencing merely because of the crime, I’m sentencing given the personality and background of the Defendant as well as in light of those factors.
I have determined that this is a case where it is appropriate to go outside of the guidelines ...

N.T., 6/14/91, at 6-7, 11.

We find that the excerpt of the sentencing hearing, as set forth above, fully satisfies the requirements for deviating from the sentencing guidelines. The sentencing judge stated on the record that appellant had proved to be unremorseful, violent, and a repeat offender from whom the public should be protected. We will not disturb the sentencing court’s finding. Appellant’s third allegation of error cannot succeed.

We have held that a claim of excessiveness, such as the one presented in appellant’s fourth argument, does not constitute a substantial question when the sentence in question is within the statutory limits. Commonwealth v. Dungan, 372 Pa.Super. 323, 539 A.2d 817 (1988); Commonwealth v. Lott, 398 Pa.Super. 573, 581 A.2d 612 (1990); Commonwealth v. Mobley, 399 Pa.Super. 108, 581 A.2d 949 (1990). “Statutory limit” is defined as the longest minimum sentence provided by law. See 42 Pa.C.S.A. § 9721.

In the case at bar, the longest minimum sentence that appellant could serve for rape, a felony of the first degree, is ten years. See 18 Pa.C.S.A. § 106(b)(2). The longest sentence that appellant could serve for simple assault, a misdemeanor of the second degree, is two years. See 18 Pa.C.S.A. § 106(b)(7). Therefore, the longest minimum sentence that appellant could serve according to the statutory limits is twelve years. The longest minimum sentence that appellant will serve, according to the sentencing judge’s recommended period of confinement, is eleven years. See N.T., sentencing hearing, 6/14/91, at 12. Therefore, the sentence in question in the case at bar is within the statutory limits; it is accordingly not a substantial question which we are compelled to review any further. Appellant's fourth assertion of error will not afford him relief.

For all of the foregoing reasons, the judgment of sentence is affirmed. Order affirmed.

      . Appellant was originally charged with five offenses: rape, aggravated assault, simple assault, unlawful restraint, and recklessly endangering another person. All but the rape and simple assault charges were nolle prossed and withdrawn as a result of appellant’s negotiated plea agreement. See certified docket transcript, 8/21/91, at 2.

      . The court previously elaborated for appellant the following rights: that appellant was presumed innocent; that the Commonwealth was required to prove guilt beyond a reasonable doubt; the right to a trial by jury; the requirement of a unanimous jury verdict for a conviction; that appellant would be present at trial, and that he would have the opportunity for cross-examination of witnesses; and, the right to remain silent, the exercise of which could not be used against him. N.T., 3/22/91, at 3-4.

      . Although appellant lists his third argument separately in the statement of questions involved, he addresses the third and fourth arguments together under roman numeral three in his brief. See brief for appellant at 13-14.

      . The record contains a comprehensive pre-sentence investigation regarding appellant. See docket entry number 10, dated May 2, 1991.

      . The sentencing judge stated: “[on the charge of rape,] I sentence him to a term of not less than ten years nor more than twenty years. On the charge of simple assault, I sentence him to not less than one year nor more than two years to be served consecutively to the sentence on the rape charge.” N.T., 6/14/91, at 12.