text:
    460 A.2d 349
    COMMONWEALTH of Pennsylvania v. Gary R. STAYTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1981.
    Filed May 13, 1983.

      Dwight L. Koerber, Jr., Clearfield, for appellant.
    Lawrence M. Kelly, Assistant District Attorney, Mont-rose, for Commonwealth, appellee.
    George Bristol, Philadelphia, for participating party.
    Before BECK, WATKINS and HOFFMAN, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Susquehanna County and involves defendant-appellant’s appeal from an order of the court below which upheld a fine imposed upon him of $2,000 pursuant to 75 Pa.C.S.A. 4H3, the section of the Motor Vehicle Code establishing fines for overweight vehicles. The defendant claims that the evidence used against him at trial, namely, the weigh scale readings of the truck he was operating, was illegally obtained and should have been suppressed.

The defendant was arrested on September 10, 1980 while operating an overweight tractor trailer dump vehicle on Interstate Route 81 in Susquehanna County by Trooper Andrew Wascura of the Pennsylvania State Police. Wascura stopped the defendant’s vehicle because he thought that it might be overweight, directed that the vehicle be taken to an official weigh station, observed two trained employees of the Pennsylvania Department of Transportation weigh the vehicle, and issued a citation to defendant when the vehicle was found to be overweight. After being convicted of the offense before a magistrate the defendant appealed the conviction to the Court of Common Pleas of Susquehanna County whereupon he filed a suppression motion requesting that the evidence of the truck’s weight be suppressed as illegally obtained.

At the suppression hearing Wascura testified that he is assigned exclusively to enforcing highway weight limitations; that he was specially trained in that area of law enforcement; that Pennsylvania was embarking on a program to enforce weight limitations on highways because it had been threatened with the loss of federal highway funds if it did not begin to enforce its weight limitation laws; and that he stopped defendant’s vehicle because he observed it travelling up an incline at a rate of speed which was slower than other commercial vehicles thereby leading him to believe that it was overweight. The court below refused to suppress the evidence and defendant was convicted after his de novo trial before the Court of Common Pleas. He then took the instant appeal.

The defendant claims that the Commonwealth has no right to conduct “spot checks” of trucks to determine whether they are overweight because such practice violates the truck driver’s Fourth and Fourteenth Amendment rights to protection against unreasonable searches and seizures. In support of his position, the defendant cites the case of Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) where the Supreme Court found that random inspections of private automobiles in order to inspect the driver’s operator’s license and vehicle registration cards are unconstitutional. The Commonwealth argues that the Court’s holding in Prouse is limited to private automobiles and that users of commercial vehicles do not enjoy the same constitutional rights with respect to a reasonable expectation of privacy as do operator’s of private automobiles. Both parties apply the same arguments to Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), a case wherein our Supreme Court held that policemen could not stop a private automobile for a routine check without first showing that it was improperly operated or that some other lawful, articulable reason existed for stopping it.

While both parties present interesting and well-reasoned positions in support of their respective arguments relative to this issue, we will not reach that issue in the instant case. That is so because the instant issue can be decided on grounds other than the constitutionality of “spot stops for weight limit determinations.” See Ashwander v. T.V.A., 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936), where the Supreme Court ruled that where two grounds exist for deciding a case and one involves the determination of the constitutionality of a statute (or as in this case, a practice) and the other permits disposition of the issue on other grounds, the issue is to be decided by the latter course.

In our case Office Wascura had probable cause to direct that the weight of the truck be checked. He testified that he had observed the truck travelling up an incline on a four lane, divided interstate highway at a speed which was slower than other commercial vehicles. We find that this observation provided Officer Wascura with sufficient cause to order the truck weighed as the travelling of a truck such as defendant’s at a slow rate of speed up an incline is certainly an indication that the vehicle may be overweight. Defendant’s argument regarding this issue is that officer Wascura’s observations as to defendant’s speed were contradicted by the defendant in certain aspects. Such factual determinations are for the suppression court. We hold that Officer Wascura’s training and experience, when coupled with his observation of Defendant’s speed in relation to other commercial vehicles, provided him with sufficient cause to check the truck for its weight. See Common wealth v. Caporiccio, 210 Pa.Superior Ct. 230, 232 A.2d 42 (1967).

Order affirmed.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    460 A.2d 350
    COMMONWEALTH of Pennsylvania, Appellant, v. Reid EVANS.
    Superior Court of Pennsylvania.
    Argued June 7, 1982.
    Filed May 13, 1983.

      Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Natale F. Carabello, Jr., Philadelphia, for appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Philadelphia County, Criminal Section, Trial Division, and involves a Commonwealth appeal from an order of the court below which granted the defendant’s motion to suppress evidence. Without the suppressed evidence the Commonwealth will be unable to prosecute the case. See, Commonwealth v. Lapia, 311 Pa.Superior Ct. 264, 457 A.2d 877 (1983).

On July 30, 1980 at 2:57 P.M., two plainclothes police officers were operating an unmarked patrol car in a public parking lot in Philadelphia. As they drove through the parking lot they observed the defendant operating a 1978 Chevrolet Monte Carlo in the parking lot. Another male accompanied the defendant in the vehicle as a passenger in the right front seat. As the Monte Carlo approached the officers’ vehicle the defendant looked directly at the officer whereupon he suddenly stopped the Monte Carlo so violently that the whole car vibrated. The defendant and his male passenger immediately departed the vehicle leaving it right where it was stopped and began moving away from the vehicle, each proceeding in a different direction. Before moving away the male passenger threw a screwdriver he had been carrying underneath the vehicle.

Upon observing this behavior, Officer Stephen Speck, one of the officers in the patrol car, approached the defendant when he was approximately twenty-five feet from the Monte Carlo and asked him what he was going to do with the car. The defendant answered by stating that the car was not his whereupon the officer walked him back to the Monte Carlo and noticed that its steering column was “broken out”, the car was “messed up” and that it had been “hot wired.” He then determined that the vehicle was owned by a Joyce Austin. The Monte Carlo, the screwdriver, and certain statements made by the defendant were obtained by the police as evidence. Defendant was later charged with theft by unlawful taking or disposition, theft by receiving stolen property, unauthorized use of a motor vehicle, possessing instruments of crime, and criminal conspiracy.

The defendant made an untimely motion to suppress the evidence immediately prior to trial. The Commonwealth objected to the motion as it was not made in conformity with the Rules of Criminal Procedure, however, the court below agreed to hear the motion “in the interest of justice”. The aforementioned facts were produced at the suppression hearing. After the hearing the court below granted the defendant’s motion and suppressed the physical evidence of the Monte Carlo and the screwdriver. It also suppressed the statements made by the defendant to the police as the product of an unlawful search by the police. The court characterized the Commonwealth’s evidence as establishing only that “two men (were) in the car, driving a car. There is nothing suspicious about that.” The court then reasoned that the officers’ actions in talking to the defendant and looking into the vehicle and observing the broken steering column and “hot-wiring” job were unlawful. The Commonwealth then appealed.

At the outset we note that the defendant’s suppression motion was based solely on his claim that the officer acted unlawfully when he approached the defendant. Thus, the issue at hand is whether the officer did act unlawfully when he approached the defendant to inquire as to what he intended to do with the car.

Absent probable cause to arrest, an officer may stop a person to question him whom he reasonably believes is committing, has committed, or is about to commit a crime. If necessary, the officer may briefly detain such a person while obtaining more information. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Thus, an officer need not have probable cause to arrest someone in order to conduct a brief, investigatory inquiry. Commonwealth v. King, 247 Pa.Superior Ct. 443, 372 A.2d 908 (1977). To rule otherwise would mean that a police officer, lacking probable cause to arrest, would be forced to allow a crime to be committed or a suspect to escape even though he had reasonable suspicion to believe that such was occurring. Any such ruling would render police officers helpless to prevent crimes from occurring or suspects from escaping. Fortunately such is not the law of Pennsylvania nor has it ever been.

The issue then is not whether the police officer, had probable cause to arrest the defendant when he approached him but whether the defendant’s actions had aroused a “reasonable suspicion” in the officer’s mind, justifying his initial questioning of the defendant. We find that they did.

Contrary to the lower court’s finding that all defendant had been doing was “driving a car”, the testimony reveals that defendant, upon observing the police officers, brought the vehicle he was operating to an abrupt halt in the driving lane of the public parking lot. He stopped the vehicle so suddenly that the entire car vibrated. He then departed the vehicle and began to move away from it. The male passenger in the vehicle also departed the car and began moving away from it in the opposite direction. Before moving away from the car he threw a screwdriver underneath it. Upon observing all of this, the officer was certainly justified in suspecting that some type of criminal activity was afoot and that the defendant might be involved in it. At the very least the officer was justified in approaching the defendant and asking him what he intended to do with the car. Surely there was nothing unlawful about asking that question of the defendant under the aforesaid circumstances. When the defendant then informed the officer that he was not the owner of the car the officer was justified in walking the defendant back to the vehicle to make further inquiries. In fact he had the duty to do so and he would have been derelict to do less. Thus, when the officer approached the Monte Carlo and observed the broken steering column and “hot-wiring” job he was lawfully in a position to observe same which were in “plain view” to anyone standing outside the vehicle. Objects falling in the plain view of an officer who has a right to be in the position to have a view are admissible evidence. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The officer had a right to be standing outside a vehicle parked in the driving lane of a public parking lot. He would have had the right even had he not observed what he did of defendant’s previous behavior. Thus, we find that the officer did nothing unlawful in observing the condition of the steering mechanism and the hot-wiring job inside the car. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. Adams v. Williams, supra. Furthermore, we find that the totality of the circumstances surrounding this incident gave the officer sufficient grounds to stop the defendant initially and that his later observations gave him probable cause to arrest the defendant. As such we reverse the order of the court below suppressing the aforesaid evidence and hold that said evidence is admissible at trial.

Order reversed and case remanded for trial.


text:
    460 A.2d 353
    Jaime CAMACHO, Appellant, v. NATIONWIDE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1981.
    Filed May 13, 1983.
    Petition for Allowance of Appeal Granted Sept. 7, 1983.

      Harold Einhorn, Philadelphia, for appellant.
    J.M. Marsh, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, Civil Division, which denied appellant’s petition for No-Fault benefits.

The facts are as follows: On July 29, 1979, while a policy was in effect with Nationwide Insurance Company, Mr. Camacho, the appellant herein, was operating his automobile in the vicinity of 6th and Moore Streets in Philadelphia, Pennsylvania. At about 1:30 A.M., as he was driving his automobile, another automobile with five men approached his automobile from the rear at a high rate of speed. When adjacent to his automobile, one of the occupants of the other automobile threw an object into Mr. Camacho’s moving automobile through an open window. While still driving, Mr. Camacho reached over into the seat next to him to pick up the object which was the size of a small bottle and was sparking. After he had picked up the object and, in the course of throwing it out the window of his car, it exploded in his hand causing the loss of one-third of the right ring finger and other severe and permanent injuries to his right hand.

We are faced with an interpretation of the legislative intent in the adoption and passage of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 1974, July 19, P.L. 489, No. 176, Art. 1, Sec. 101, et seq.; 40 P.S. Sec. 1009.101 et seq.

In Section 1009.102 b of the Act, the purpose is clearly-set forth. “Therefore, it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.

Section 1009.103 defines the contemplated injuries to be covered as: “Injury means accidentally sustained bodily harm to an individual and that individual’s illness, disease, or death resulting therefrom” and victim as: “an individual who suffers injury arising out of the maintenance or use of a motor vehicle”; “deceased victim” means a victim suffering death resulting from injury. Also, “maintenance and use of a motor vehicle” means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it.”

The Act must be read as a whole and not each section thereof individually to determine its scope. It is clear that this was never intended to be a general liability insurance which would cover all injuries, no matter how remotely connected with the use or maintenance of a motor vehicle, but is intended to cover motor- vehicle accidents. The economics of the Act are completely destroyed by any other interpretation.

We have here an intentional tort which has no connection with a motor vehicle accident other than that the injured party was operating a motor vehicle at the time of its commission.

The term “Motor Vehicle Accident” is one of common parlance in today’s society and the coverage of the Act is limited to motor vehicle accidents while maintaining or using same.

Order affirmed.


text:
    460 A.2d 354
    COMMONWEALTH of Pennsylvania v. Gerard T. GEISE, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1982.
    Filed May 13, 1983.

      Robert Thomas Panowicz, Wilkes-Barre, for appellant.
    Gailey C. Keller, District Attorney, Bloomsburg, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Columbia County, Criminal Division, and involves the appellant-defendant’s appeal from an order of the court below which found him guilty of violating 75 Pa.C.S.A. 4902(a) and imposed a fine on him. Said violation constitutes a summary offense and involves weight restrictions imposed upon motor vehicles.

Defendant was charged with driving a truck loaded with cargo weighing 54,999 pounds over a bridge carrying a posted maximum weight limit of 26,000 pounds. After being found guilty of the charge by a district magistrate he appealed his conviction to the Court of Common Pleas where he was granted a de novo trial. During said trial, the defendant admitted that he drove the truck over the bridge knowing that it was overweight for the bridge weight limit. On appeal he argues that the Commonwealth did not sustain its burden of proof at his de novo summary trial because it failed to introduce evidence to the effect that the weight restriction on the bridge was imposed as the result of an engineering or traffic study demonstrating that the bridge might be damaged or destroyed if the restriction were not imposed. Defendant points out that 75 Pa.C.S.A. 4902 sets forth two reasons for the imposition of weight restrictions on bridges. Section 75 Pa.C.S.A. 4902(a) deals with weight restrictions imposed because of the condition of the bridge; 75 Pa. C. S.A. 4902(b) deals with weight restrictions imposed because of traffic conditions. The distinction is important because the penalties for violating 75 Pa.C. S.A. 4902(a) are much more severe than those for violations of 75 Pa.C.S.A. 4902(b). See 75 Pa.C.S.A. 4902(g). Thus, as a necessary element of proving whether the violation was of subsection (a) or (b) it is required that the Commonwealth prove the reason for the posting of the weight limit on the bridge.

The defendant argues that the Commonwealth failed to prove the reason for the posting of the weight limit. However, during the summary trial the arresting officer, who had established his qualifications for weighing vehicles, testified as to a document “sent out by the district engineer stating that the bridge is posted because of deterioration.” The defendant objected to this testimony claiming that the officer was not qualified to testify to any study that was done. The court then stated that the Commonwealth attorney, “may ask your next question.” He then asked the officer as to the weight limit set forth on the document for the bridge. Again the defendant’s attorney objected claiming that the document was hearsay. The court then ruled that the officer could “testify to what he knows.” The officer then testified that the posted weight limit for the bridge was thirteen ton (26,000 pounds). After the conclusion of the testimony the Commonwealth attorney moved for the introduction of several documents including the document discussed here. Defendant’s attorney objected to the introduction of that document. The court stated that, “I think there is testimony to that effect” and sustained the objection. Defendant now argues that because the court below sustained his objections to the introduction of the aforesaid document that the Commonwealth failed in its burden of proving a necessary element of the offense. We do not agree. As pointed out earlier in our discussion and as pointed out by the court below the officer did testify that the reason for the posting of the bridge was its “deterioration,” thus bringing defendant’s violation squarely within the proscriptions of 4902(a) of which he was convicted. While the court below probably should have admitted the document itself as the best evidence of what it said we cannot say that it erred by accepting the officer’s testimony as to what the document said where the defendant objected to the introduction of the document itself and where the defendant’s objection to the officer’s testimony was based upon defendant’s claim that the officer was not “qualified to testify to any study that was done.” We hold that in order to prove the reason for the posting of a weight limit on any bridge or highway so as to distinguish between a violation of 4902(a) and 4902(b) of the Motor Vehicle Code the arresting officer may introduce a certified copy of a report by the Pennsylvania Department of Transportation district engineer setting forth the reason for weight restriction. Because evidence of the reason for the weight restriction was produced in this case, we affirm the defendant’s conviction for violating said restrictions.

Order affirmed.


text:
    460 A.2d 356
    VALLEY FORGE TOWER SOUTH CONDOMINIUM By Herbert WEINSTEIN, Harold Goldberg, Christopher Knight, Simon Vogel and Robert Reardon, Trustees Ad Litem and Charles A. Pittman, III and Claire M. Pittman and Inga Bernard Canavan and Margaret Canavan and Inga Lisa Wright and Morris Kaplan and Annette Kaplan and Manuel Ruben and Gladys Ruben and Bruce H. Mayer and Eleanor Mayer, Appellants, v. TOWER ASSOCIATES, a Pennsylvania Limited Partnership and First Wisconsin National Bank of Milwaukee and Alternóse Construction Company, a Pennsylvania Corporation and Roger D. Altemose and Franklin W. Altemose and Henry F. White, Jr. and Charles H. Moyer and Louis Paul.
    Superior Court of Pennsylvania.
    Argued June 8, 1982.
    Filed May 13, 1983.

      Stanley A. Uhr, Philadelphia, for appellants.
    Leonard J. Bucki, Philadelphia, for appellees.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Montgomery County, Civil Division, and involves an appeal by the plaintiffs-appellants from an order of the trial court granting the motion of one of the defendants, First Wisconsin National Bank of Milwaukee, to dismiss the complaint. The motion to dismiss the action was granted on the grounds that the trial court lacked venue pursuant to 12 U.S.C. § 94.

The defendant-appellee, First Wisconsin National Bank of Milwaukee, is a national banking institution with its principal place of business in Wisconsin. It has no branch offices in Pennsylvania. The National Bank Act, 12 U.S.C. § 94 provides that:

“Actions and proceedings against any association under this chapter may be had in the District or Territorial Court of the United States held within the District in which such association may be established, or in any capital state, county or Municipal Court in the Couty or city in which said association is located having jurisdiction in similar cases.”

Thus, national banks may be sued only in those state courts in the County where the banks are located. National Bank of North America v. Associates of Obstetrics, 425 U.S. 460, 96 S.Ct. 1632, 48 L.Ed.2d 92 (1976). However, there is an exception to the general rule as set forth by the Supreme Court in Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52 (1880) wherein the Court held that the limitation on actions against ' national banks does not apply to actions which are strictly local and non-transitory in nature.

On May 28, 1980 plaintiffs filed an Amended Complaint in Assumpsit alleging that defendant, either as mortgagee in possession of real estate or as holder of a deed in lieu of foreclosure, was liable for damages to them caused by defects in the construction of the Valley Forge South Condominium. Their theory of liability is predicated on a breach of either an express or implied warranty. Plaintiffs argue that their cause of action comes within the exception to the general rule carried out in Casey v. Adams, supra. They claim that because their cause of action involves real estate located in Montgomery County, Pennsylvania that it is an “in rem” proceeding and not subject to 12 U.S.C. § 9%. We do not agree. In Michigan National Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961 (1963), the Supreme Court held that a suit for damages against a national bank located in Michigan cannot be laid in a Nebraska state court on the ground that the action is a local, not a transitory action, where the applicable Nebraska venue statute permits suits against foreign corporations in any county where the defendant can be found. In that case the Court held that the exception to the general rule set forth in Casey, supra, is a narrow one and involves only a suit to determine interests in property at the situs of that property.

The instant case is not one involving the issue of interests in real estate at its situs. Rather, it is an action for damages for breach of warranty. Merely because it involves a real estate transaction does not automatically bring it within the Casey exception. Because our case involves a breach of contract action, we find that it bears a closer resemblance to National Bank of North America, supra, than it does to Casey. As such, we affirm the order of the court below dismissing the action.

Order affirmed.


author: HOFFMAN, Judge:

text:
    460 A.2d 358
    Marjorie M. GEE v. Clark M. GEE, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 3, 1983.
    Filed May 13, 1983.

      William A. Hebe, Wellsboro, for appellant.
    John A. Felix, Williamsport, for appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in declaring certain items “marital property” under the Divorce Code, and in accepting the master’s unsupported estimate of the fair market rental value of the parties’ real property. We disagree and, accordingly, affirm the order of the lower court.

The parties married in July, 1961 and separated in November, 1978. Appellee was granted a divorce on grounds of indignities on July 29, 1980 and her petition for equitable distribution of property was referred to a master. After a hearing and the filing of the master’s report and appellant’s exceptions, the lower court accepted the master’s findings and recommendations and ordered that all marital property be equally divided and that appellant pay appellee one-half the estimated fair market rental value of the marital home and farmland for each month he resided there after she left. This appeal followed.

Appellant contends first that the lower court erred in designating certain property as “marital property.” Section 401(e) of the Divorce Code provides:

All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by showing that the property was acquired by a method listed in subsection (e).

23 P.S. § 401(f); Platek v. Platek, 309 Pa. Superior Ct. 16, 21, 454 A.2d 1059, 1061 (1982). Appellant argues specifically that appellee had not met her burden of establishing that the cattle on the property was acquired during the marriage. The record belies this contention. Appellee testified that any cattle owned by appellant prior to the marriage had been sold shortly thereafter and that the parties “didn’t get into the beef cattle business for a few years later.” (N.T. October 9, 1981 at 18). Moreover, she testified that some of the cattle had been paid for with monies from the parties’ joint checking account, while others had been given to appellant by his father in lieu of wages for work performed during the marriage. She estimated that there were approximately 90 head left on the property when she departed. We are satisfied that appellee has shown that the 35 head of cattle, two heifers and one bull on the property at the time of appraisal were acquired during the marriage, thus triggering the marital property presumption. Appellant has failed to offer sufficient evidence to overcome the presumption and, therefore, the lower court did not err in holding the animals subject to equitable distribution.

Appellant contends next that the parties’ bedroom set was not marital property because it had been given to . him by his grandmother. See 23 P.S. § 401(e)(3) (“Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage” excluded from marital property). Appellee, however, testified that they had received the furniture during their marriage as a joint gift and had refinished it at their own expense. (N.T. October 9, 1981 at 13). The master and lower court were free to accept appellee’s testimony and reject appellant’s contention. Accordingly, the lower court did not err in finding the joint gift marital property subject to equitable distribution.

Appellant contends finally that the lower court erred in accepting the master’s unsupported appraisal of the fair market rental value of the parties’ residence and farmland. The equitable distribution of marital property is within the sound discretion and judgment of the lower court and its decisions shall not be disturbed on appeal absent an abuse of that discretion. See 23 P.S. § 401(d); Bacchetta v. Bacchetta, 498 Pa. 227, 234, 445 A.2d 1194, 1198 (1982). Accord, Remick v. Remick, 310 Pa. Superior Ct. 23, 456 A.2d 163 (1983) (monetary decisions such as alimony, alimony pendente lite, and counsel fees reviewed under abuse of discretion standard). Here, the master’s estimate, upon which the lower court based its order, relied upon the appraisal report stipulated to by the parties (N.T. October 9, 1981 at 6) and the master’s own knowledge of the rental values in the county. The appraisal report estimated the monthly rent of the parties’ house at $200. This figure, however, did not include the parties’ 132 acres that appellant continued to farm, or the $15,000 barn located on the farm land. The record adequately supports the master’s estimate of a fair market rental value of at least $300 per month and thus, the lower court did not abuse its discretion in fixing the award at that amount. Accordingly, we affirm the order of the lower court.

Affirmed.

      . Act of April 2, 1980, P.L. 63, No. 26, § 401, 23 P.S. § 401.

      . Appellant contends also that the lower court erred in requiring any rental payments because appellee had never specifically requested them. The Divorce Code requires the lower court to determine and dispose “of existing property rights and interests between the parties,” 12 P.S. § 401(b), by "equitably dividing], distribut[ing] or assigning] the marital property ... as the court deems just after considering all relevant factors.” Id. § 401(d). Appellee’s petition for equitable distribution of property required the court to equitably dispose of all the rights and interests of the parties in all of the marital property. The court’s awarding appellee one-half the fair market rental value of the jointly-owned real estate that appellant was residing and working upon, compensated appellee for her rights and interests in the land and was thus not an abuse of discretion.


author: PER CURIAM:

text:
    460 A.2d 360
    COMMONWEALTH of Pennsylvania v. Warren HENDERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 16, 1983.
    Filed May 13, 1983.
    Edward Y. Schulgen, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before CERCONE, President Judge, and JOHNSON and MONTEMURO, JJ.
   PER CURIAM:

Appellant was found guilty of robbery, possessing an instrument of crime and theft by unlawful taking following a non-jury trial. Post-verdict motions were timely filed, heard and denied, after which appellant received consecutive sentences of two and one-half to five years incarceration for possessing an instrument of crime, two to four years followed by ten years probation for robbery, and six months to one year for theft.

Appellant advances two distinct issues on this consolidated appeal. First, he argues that the trial judge abused his discretion when, after the conclusion of all testimony, he expressed his desire to have the case thoroughly tried and asked that the police officer, who entered the apartment where the robbery/theft occurred, testify. We find this contention to be without merit. Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963); Commonwealth v. Bready, 189 Pa.Super. 427, 150 A.2d 156 (1959).

Second, appellant contests his having been sentenced on separate counts of robbery and theft where both offenses arose out of the same incident and, therefore, merged. The trial court acknowledged the correctness of this contention in its opinion filed December 28, 1981, but correctly understood it was without authority to modify the sentence while the case remained on appeal. The Commonwealth, in its brief to this court, agrees that the theft conviction merged with the robbery conviction for purposes of sentencing.

Our review of the opinion filed by the trial judge pursuant to Pa.R.Crim.P. 1925(a) together with the sentencing transcript of March 31, 1981 persuades us that the imposition of the one sentence could not have influenced the other. A remand would serve no useful purpose. See Commonwealth v. Brazzle, 272 Pa.Super. 438, 416 A.2d 536 (1979).

Judgment of sentence on the theft count vacated and other judgments of sentence affirmed.

      . 18 Pa.C.S.A. § 3701.

      . Id. § 907.

      . Id. § 3921.

      . Appeal at 936 Philadelphia 1981.

      . Appeal at 1936 Philadelphia 1981.


text:
    460 A.2d 362
    COMMONWEALTH of Pennsylvania, v. Curtis MATTHEWS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 12, 1983.
    Filed May 13, 1983.

      Anthony J. Vardaro, Meadville, for appellant.
    Donald E. Lewis, District Attorney, Meadville, for Commonwealth, appellee.
    Before CERCONE, President Judge, and POPOVICH and VAN der VOORT, JJ.
   PER CURIAM:

A jury convicted appellant on four charges of theft by receiving stolen property. The lower court refused motions for new trial and in arrest of judgment. President Judge Thomas imposed a cumulative sentence of three to six years imprisonment. The appellant raises five contentions relating to alleged trial errors, and an additional contention as to the sentences imposed. In our discussion we will follow the same order as that used by appellant.

1. Were the four counts improperly consolidated for trial?

The indictments resulted from a series of four burglaries that occurred in the City of Meadville between October and December of 1980. The burglaries involved the theft of a wide assortment of items, from jewelry to stereo systems. Much of the property was found at and recovered from the residence of a Mary Lee Jones, a girl-friend of the appellant.

Over appellant’s objection, the lower court entered an order consolidating all four counts for trial. Appellant contends that this order and the resulting consolidated trial, improperly prejudiced the defense. Appellant concedes that consolidation of indictments is frequently appropriate in the interests of judicial economy, Commonwealth v. Lasch, 464 Pa. 573, 582, 347 A.2d 690 (1974); but argues that judicial expedience must be weighed against the possibility of improper prejudice against the defendant. Commonwealth v. Peterson, 453 Pa. 187, 194-197, 307 A.2d 264 (1973); Commonwealth v. Irons, 230 Pa. Superior Ct. 56, 326 A.2d 488 (1974). In this specific case, he argues the jury was improperly permitted (a) “to infer a criminal disposition on the part of the appellant due to the quantity of crimes”, and (b) “to accumulate evidence of the various crimes such that they had no choice but to find the appellant guilty due to the four crimes being alleged.”

The Commonwealth contends to the contrary and argues that in this specific case, the appellant was in possession of (or, at least, had exercised control over) the various goods taken in all four separate robberies. The prosecution argues this tended in turn, to prove a knowledge that the goods were stolen. Such evidence, argues the Commonwealth, would have been admissible in separate trials for each of the counts, and therefore the consolidation was proper: Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981).

Judge Thomas’ opinion, citing Morris, supra and Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975) which presented facts similar to the present case, and Commonwealth v. Rhodes, 250 Pa. Superior Ct. 210, 378 A.2d 901 (1977), concluded that consolidation was proper in this case. The court reasoned that because all four counts were for receiving stolen property; the burglaries all occurred within about a month of each other; and the quantity of stolen property found in appellant’s possession supported an inference of knowledge on his part, the evidence would have been admissible in separate trials for each count.

The propriety of consolidating separate indictments for trial lies with the discretion of the trial court. Commonwealth v. Hill, 479 Pa. 346, 388 A.2d 689 (1978). As we find no manifest abuse of discretion or prejudice and injustice to appellant we will not disturb the trial court’s decision.

2. Did the court err in allowing the prosecution to cross-examine its own witness under a claim of surprise?

Mary Lee Jones was called as a prosecution witness. At a preliminary hearing in this case she had testified that appellant had brought the stolen property to her residence. At the trial, however, she claimed that she did not know who brought the property into her residence—that she just awoke one morning and found it there. The prosecution asked for and received permission to cross-examine her. The examination went into details as to the property brought to her house; her testimony at the preliminary hearing; what she had previously told an investigating officer; her relations with appellant and her conversations with him since his arrest.

We find that the prosecution was “surprised” within the technical limitations of that word by the witness’s trial testimony, and that the court, within its broad judicial discretion, permitted the prosecution to cross-examine her. Commonwealth v. Thomas, 459 Pa. 371, 379, 329 A.2d 277 (1974); Commonwealth v. Dancer, 452 Pa. 221, 305 A.2d 364 (1973), Commonwealth v. Barber, 275 Pa. Superior Ct. 144, 151, 418 A.2d 653 (1980).

3. Did the trial court err in permitting the admission of hearsay testimony?

This contention involves three different assertions which were developed in the testimony of prosecution witness, Sergeant Robert Stevens. We will address each separately.

(a) After appellant was arrested, he placed a telephone call to his mother. Stevens overheard the appellant say “that he wouldn’t be in this mess if he had work.” (N.T., p. 94). For whatever persuasive value it might have, we believe that Sergeant Stevens’ testimony of appellant’s statement to his mother was admissible, as was the mother’s later testimony that she and her son had been discussing problems he was having with his car. If the appellant’s declaration by phone was an admission of his participation in the events which brought about his arrest—“this mess”, then it was admissible as an admission against interest. Whether the declaration related to some other problems of the appellant as the mother testified, was for the jury to resolve. See Commonwealth v. Tervalon, 463 Pa. 581, 590, 345 A.2d 671 (1975); and Commonwealth v. Johnson, 273 Pa. Superior Ct. 14, 22, 416 A.2d 1065 (1979).

(b) Over objection, Stevens was permitted to testify that he had “received information from a confidential informant” that property taken from one of the victims was in Mary Lee Jones’ residence, and “was told that it was put there by Curtiss Matthews.” (N.T., p. 88)

Judge Thomas’s opinion states (at page 7) that the “statement was not admitted to prove the truth of the statement but rather to explain the course of action taken by the police ...” and “[t]hus it was not inadmissible hearsay.”, citing Commonwealth v. Ryan, 253 Pa. Superior Ct. 92, 384 A.2d 1243 (1978); Commonwealth v. Tselepsis, 198 Pa. Superior Ct. 449, 181 A.2d 710 (1962). We must agree. A panel of this court recently approved of the admission of a tape recording of a phone call directing police to the scene of a murder. The panel noted that, among other purposes, it “explained the course of conduct of the police officers.” Commonwealth v. Stewart, 304 Pa. Superior Ct. 382, 385, 450 A.2d 732, 733 (1982). Such reasoning controls here.

(c) In the course of the search pursuant to a search warrant of Jones’ premises by Stevens, Jones told Stevens that “a pile of merchandise on the floor____belonged to Curtis” (N.T., p. 91) and that “Curtis carried ... in” the merchandise into her residence. (N.T., p. 92)

The trial court allowed the officer’s testimony as to such, over objection, “in rebuttal of the testimony she [Jones] offered.” (N.T., p. 91) See Issue 2, supra. Such testimony was properly received as a prior, inconsistent statement by the prosecution witness, as to whom the prosecution had successfully pleaded surprise. Commonwealth v. London, 461 Pa. 566, 574, 337 A.2d 549, 553 (1975).

4. Should the court have ordered a mistrial?

On the morning of May 21, 1981, testimony was received from the four victims of the various burglaries. About 11:55 A.M., the court recessed for lunch. When the trial resumed at 1:30 P.M., counsel for the appellant moved for a mistrial for two reasons. The first dealt with a number of high school students who had been present at the morning session. As jurors were leaving for lunch, the court told the high school students that.what they had seen so far was “a preliminary ... routine matter ... that the property had been stolen ... ”, thus, allegedly prejudicing the defense. Appellant also contends that he was prejudiced when a juror saw him “in the custody of several deputies and the Sheriff____” (N.T., p. 45). Due to our resolution of the following contention, Number 5, we find it unnecessary to address these matters.

5. Was the supplemental instruction to the jury improper?

In his original charge, Judge Thomas pointed out to the jurors that the witness Mary Jones had allegedly made a statement on another occasion which seemed in conflict with part of her testimony at the trial, and that the evidence of this other statement could be considered only for the purpose of deciding whether to believe her trial testimony (N.T., p. 120).

The prosecution objected to this portion of the charge, relying upon Commonwealth v. Loar, 264 Pa. Superior Ct. 398, 399 A.2d 1110 (1979). Judge Thomas was persuaded that the Loar case had changed the law in Pennsylvania, at least in cases similar to the present case, where the declarant was available in court and subject to cross-examination. He therefore supplemented his charge before the jurors were dismissed for their final deliberations. He told the jury that they could accept Mary Jones’ prior inconsistent statements as “substantive or actual evidence in the case ... part of the total evidence the Commonwealth has presented to you.”

At the time of trial, Loar, supra, was the controlling case in this respect and therefore the trial court may not be faulted for relying on it. However, in Commonwealth v. Waller, 498 Pa. 33, 39 n. 2, 444 A.2d 653, 656 n. 2 (1982) our Supreme Court explicitly “decline[d] to adopt the reasoning” in Loar. The court ruled that the use of prior inconsistent statements as substantive evidence “has never been and is not now the law in this Commonwealth.” “See Commonwealth v. Thirkield, 311 Pa. Superior Ct. 413, 457 A.2d 954 (1983). Appellant took exception to the jury instruction, both after the charge was given, and in post-verdict motions. Appellant’s complaint has therefore been preserved. We must vacate the judgment of sentence and grant him a new trial.

Judgment of sentence is vacated and the case is remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction.

POPOVICH, J., concurs in the result.

      . No. 1981-57, one to two years; No. 1981-58, six months to one year; No. 1981-59 one to two years; and No. 1981-60, six months to one year, all to run consecutively.

      . Appellant then cites Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). Such case offers little, if any, support for appellant’s position.

      . Appellant’s mother, testified as a defense witness that she and appellant had been discussing appellant’s car which had not “got ... fixed.” (N.T., pp. 106, 109, 110).

      . The court in Waller, supra, distinguished between the prior inconsistent statement itself and the witness’ testimony on cross-examination regarding the prior statement. The court noted the latter is admissible as substantive evidence while the former is not.

      . Due to our resolution of the other issues, we find it unnecessary at this time to address appellant’s contention pertaining to the sentence imposed.


author: WATKINS, Judge: JOHNSON, Judge,

text:
    460 A.2d 757
    Durant REID v. Carrington RUFFIN and Granite Mutual Insurance Company and Security Mutual Casualty Company. Appeal of SECURITY MUTUAL CASUALTY COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1982.
    Filed April 8, 1983.
    Reargument Denied June 20, 1983.
    Petition for Allowance of Appeal Granted Sept. 7, 1983.

      Lewis Weinstock, Philadelphia, for appellant.
    Stephen M. Feldman, Philadelphia, for appellees.

      Before JOHNSON, WATKINS and LIPEZ, JJ.
   WATKINS, Judge:

The appellant, Security Mutual Casualty Company [Security] appeals from the judgment entered in favor of Durant Reid [Reid] in the amount of $96,687.75 plus interest, recovered pursuant to Reid’s garnishment action.

The facts indicate that an automobile accident occurred on July 24, 1972 involving appellee Reid and Carrington Ruffin. Ruffin’s vehicle hit Reid’s vehicle, causing Reid severe and permanent physical injuries. Reid was unable to work for a period of five months. At the time of the accident, Ruffin was insured by Granite Mutual Insurance Company [Granite] in the amount of $10,000 per person and $20,000 per accident. Granite had entered into a contract for reinsurance with Security for the last $2,500 of Granite’s $10,000 coverage, prior to the accident.

Ruffin immediately reported the accident to Granite which then assigned the case to an independent claims adjuster. In October of 1972, a doctor examined Reid on behalf of Granite and determined that the injuries to his right arm were serious, involving partial permanent loss of use of the hand and arm, numbness and the inability to extend the wrist or abduct the thumb. The claims adjuster interviewed Ruffin, and was told by Ruffin of the existence of two eyewitnesses to the accident whose testimony might be unfavorable to Ruffin. This information was forwarded by letter to Granite on December 8, 1982.

On November 1, 1972, Reid had filed his complaint in arbitration against Ruffin. On December 20, 1972, Granite’s house counsel sent Security a letter stating (1) that it was possible that Security’s portion of the insurance coverage would be involved, (2) that there existed two eyewitnesses whose testimony would be unfavorable to Ruffin, (3) a summary of the report of Granite’s doctor on the injuries to Reid and (4) the following statement:

“While we have some defense on the liability in view of the serious permanent injury sustained by the driver I felt your company should be advised although I do not suggest you carry any reserve at this time.”

Security acknowledged receipt of this letter by reply on January 3, 1973 and requested Granite to keep Security advised of developments. Security did not request any further specific information in its reply letter, despite the fact that the reply information contained pre-printed form provisions that could be marked to request additional specific information from Granite.

During the following few months, Reid’s counsel sent wage loss information, signed statements of the witnesses adverse to Ruffin and, on April 19, 1973, a settlement offer of $10,000 to Granite, open for 30 days. On May 3, 1973, house counsel for Granite again wrote to Security stating that the names of the eyewitnesses had been provided but failed to mention the offer of $10,000. Reid petitioned to transfer the suit from arbitration to major case listing on May 21, 1973, and informed Granite of this fact. On May 30, 1973, a counter offer of $9,000 was made by Granite’s claims representative, which counter offer was rejected by Reid.

On June 13, 1973, Granite’s claim representative sent a copy of Reid’s transfer petition to Security and stated in an accompanying letter:

Please note that the attorney has withdrawn the Certificate of Readiness and has filed a petition to make this a Major case. The attorney has made a demand of $10,000 and we made him an offer of $9,000, but he is not willing to budge from his demand of $10,000.
Suggest you carry a reserve of $2,000 and will keep you advised of any further developments.

On the same date, the claims representative offered $9,500 to Reid and sent Ruffin a letter indicating his liability for any judgment in excess of $10,000. The letter to Ruffin, their insured, failed to disclose the settlement offers. Security responded on August 16, 1973, inquiring whether an excess letter had been sent to Ruffin and what the ad damnum clause of plaintiff’s complaint specified.

After the taking of depositions, Granite finally made an offer of $10,000 to Reid on September 24, 1973, which was rejected. A jury found in favor of Reid after trial in October 1973 in the ¿mount of $80,000 against Ruffin.

Reid then proceeded to commence a garnishment proceeding against both Granite and Security, charging both with bad faith refusal to settle. Following a jury trial, a verdict was rendered for Reid against both insurers on November 23, 1976 in the amount of $70,000 plus interest. Post-trial motions filed by Granite were denied. Granite was subsequently determined to be insolvent. Post-trial motions filed by Security were heard and a new trial for Security granted, which resulted in a verdict again in favor of Reid against Security in the amount of $80,000. The trial court then molded the verdict to $96,687.75. Post-trial motions for judgment n.o.v. or a new trial were denied and this appeal taken.

Appellant Security raises four issues on appeal, namely: (1) whether the reinsurer of an automobile insurance company owes any duty to the insured to participate actively in the defense by the insurer of claims against the insured, (2) whether the reinsurance agreement makes the insurer its agent, so as to render the reinsurer liable, despite a lack of knowledge of the insurer’s bad faith in conducting the defense, (3) whether the issue of bad faith of the reinsurer should be submitted to the jury, in absence of any evidence of acts or omissions which violated any duty it owed the insured, and (4) whether the trial court erred in its evidentiary rulings and jury charge with respect to the reinsurance agreement, the reinsurer’s duties and related matters.

Reinsurance refers to an “undertaking whereby one insurer agrees to protect another insurer, known as the reinsured, either wholly or partially from a risk which it has undertaken, both policies being in effect at the same time, and the original insured having no interest in the reinsurance.” 13A Appleman, Insurance Law & Practice 7681, at 484-85 (1976). When an insurer has the subject of insurance reinsured to him by another, there is “no privity between the original insured and the reinsurer; the latter is in no respect liable to the former as a surety or otherwise; the contract of insurance and of reinsurance being totally distinct and disconnected.” Appeal of Goodrich, 109 Pa. 523, 529, 2 A. 209, 211 (1885). The insolvency of the original insurer does not change the nature of the reinsurer’s obligation so as to permit the insurer to pursue it directly.” 19 Couch on Insurance, 80:66 at 959 (R.A. Anderson ed., 2d ed. (1959)). The insured may, however, bring a direct action against the reinsurer where a proper third-party beneficiary contract to that effect may be found or where the reinsurer is a successor which has assumed the original insurer’s liabilities.” 19 Couch on Insurance, supra, 80:67 at 959.

Security did not have the right to control the settlement negotiations nor did it participate in same. In fact, it did nothing in exercise of its rights under the contract, as was its option. There was no third party beneficiary contract between the companies, and the reinsuring contract did not create a principal-agent relationship with Granite as the contract spells out the rights and obligations of each of the parties. An agency relationship was neither contemplated nor intended by the parties.

Ruffin was not privy to the reinsurance contract nor was he owed any duty by Security as a result of it.

Judgment reversed and judgment non-obstante verdicts is entered for the appellant, Security Mutual Casualty Company.

LIPEZ, J., concurred in the result.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I respectfully dissent. I view the central issue as whether an automobile accident victim may recover damages from the “reinsurer” of a party liable for a victim’s injuries when said “reinsurer” and/or the liable party’s original insurer engage in a bad faith refusal to settle a claim. The trial court answered this question in the affirmative. I would affirm.

Appellant Security raises four specific issues on appeal, namely: (1) whether the reinsurer of an automobile insurance company owes any duty to the insured to participate actively in the defense by the insurer of claims against the insured, (2) whether the reinsurance agreement makes the insurer its agent, so as to render the reinsurer liable, despite a lack of knowledge of the insurer’s bad faith in conducting the defense, (3) whether the issue of bad faith of the reinsurer should be submitted to the jury, in absence of any evidence of acts or omissions which violated any duty it owed the insured, and (4) whether the trial court erred in its evidentiary rulings and jury charge with respect to the reinsurance agreement, the reinsurer’s duties and related matters.

Article 8 of the reinsurance agreement between Granite and Security states:

ARTICLE 8—LOSS REPORTS
The Company [Granite] shall advise the Reinsurer [Security] promptly of all claims which in the opinion of the Company, may result in an excess loss being charged against this reinsurance, and all subsequent developments thereto which, in the opinion of the Company, may materially affect the position of the Reinsurer.
The Reinsurer agrees to abide by the loss settlements of the Company, it being understood, however, that when so requested the Company will afford the Reinsurer the opportunity to be associated with the Company, at the expense of the Reinsurer, in the defense of any claim or suit or proceeding involving this reinsurance, and that the Company will cooperate in every respect in the defense or control of such claim, suit or proceeding. The Reinsurer shall have the right to examine underwriting and claims files of the Company at all reasonable times and shall have the right to confer with trial counsel retained by the Company with reference to any claim.
The Company shall immediately give notice to the Rein-surer on all claims reserved in excess of the Company’s retention, and also shall give prompt notice to the Rein-surer on claims which, in the judgment of the Company could develop into losses involving reinsurance hereunder. Further, as respects bodily injuries, the Company shall report to the Reinsurer all claims involving fatalities, spinal cord damage, brain damage, blindness, extensive burns, multiple fractures or amputations, regardless of liability, where the policy limits (or Workmen’s Compensation benefits) applicable to such losses exceed the retention of the Company. Inadvertent omission in dispatching such notices shall in no way effect the liability of the Reinsurer under this Agreement, provided the Company informs the Reinsurer of such omission or oversight promptly upon its discovery. Settlement of claims involving this reinsurance shall not be made without the consent of the Reinsurer, except in those instances where an immediate decision is necessary and it is impracticable to obtain the consent of the Reinsurer. In such instances, the Company shall exercise the necessary powers in the common interest of itself and the Reinsurer, and the Reinsurer agrees to rely upon the judgment of the Company, it being understood that the Company will forthwith advise the Reinsurer of the action taken.

I.

The first issue raised by Appellant is whether a reinsurer of an automobile insurance company owes any duty to the insured to participate actively in the defense by the insurer of claims against the insured. Reinsurance has been defined as:

[T]he ceding by one insurance company to another of all or a portion of its risks for a stipulated portion of the premium, in which the liability of the reinsurer is solely to the reinsured, which is the ceding company, and in which contract the ceding company retains all contact with the original insured, and handles all matters prior to and subsequent to loss____ The reinsurance situation arises ... [when] the ceding company finds that it has more risks than it cares to keep in its own portfolio____ The original insured is not notified of the reinsurance, has no contact with the reinsuring company, and is generally not a party to the contract and has no legal interest therein.

13A Appleman & Appleman, Insurance Law & Practice § 7681 at 480-81 (1976) (footnote omitted); see also Couch on Insurance 2d § 80:66 (1968); 44 Am.Jur.2d Insurance § 1867 (1969).

The original insured generally has no interest in the contract for reinsurance; no privity of contract exists. See Id. at 50-51; Appeal of Goodrich, 109 Pa. 523, 2 A. 209 (1885); see also Morris & Co. v. Skandinavia Insurance Co., 279 U.S. 405, 49 S.Ct. 360, 73 L.Ed. 762 (1929); Housing Authority of the County of Lebanon v. Envirohousing, 442 F.Supp. 1193 (M.D.Pa.1977); Fontenot v. Marquette Casualty Company, 258 La. 671, 247 So.2d 572 (1971). The theory behind precluding the original insured from bringing an action against the reinsurer is that the original insured usually has no knowledge of the reinsurance agreement and hence, could not have relied upon it when contracting with the original insurer. Housing Authority of the County of Lebanon, supra.

Security argues that its only duty arising from the agreement involves the payment of the $2,500 in coverage which was reinsured.

Although Security may not have been under a duty, pursuant to the agreement, to engage in direct negotiations for the settlement of the instant claim with the victim’s attorney, Security clearly was under a duty to act in good faith in reviewing any and all information provided by Granite concerning the claim. This requirement of good faith occurs as a result of the provisions of the agreement between Security and Granite. According to Section 8 of the agreement, any settlement involving a portion of the coverage reinsured requires the consent of Security, except in certain emergency situations. If Security was not required to act in good faith in regard to claims involving that portion of coverage which has been reinsured, the original insured would be severely prejudiced.

The original insurer of a typical automobile liability insurance policy undertakes three types of obligations: (1) to indemnify the insured against liability for personal and property damage, (2) to defend the insured against any suits arising under the policy and (3) to assume a fiduciary position towards the insured concerning the insurer’s rights to make a binding settlement. Gedeon v. State Farm Mutual Automobile Insurance Company, 410 Pa. 55, 188 A.2d 320 (1963). This third obligation requires the original insurer to act in good faith and with due care in representing the interests of the insured, and if this duty is breached, the original insurer may be liable for the entire amount of any judgment secured against the insured, regardless of the policy limits. Gedeon, supra; see also Cowden v. Aetna Casualty and Surety Company, 389 Pa. 459, 134 A.2d 223 (1957); Shearer v. Reed, 286 Pa.Super. 188, 428 A.2d 635 (1981). This obligation to act in good faith in regard to the disposition of claims against the insured creates an agency relationship between the insurer and the original insured. Cowden, supra.

Good faith requires an insurer to consider the interests of the insured as well as the insurer’s own interests in deciding whether or not to settle a case within policy limits. The insurer must weigh this conflicting interest by making its decision to settle or go to trial as if it had full coverage for whatever verdict might be recovered, regardless of the policy limits. Rova Farms Resort, Inc. v. Investors Insur ance Company of America, 65 N.J. 474, 323 A.2d 495 (1974).

Concerning the insurer’s decision not to settle, our court stated, in Shearer v. Reed, id., 286 Pa.Superior at 194, 428 A.2d at 638:

“[A] decision not to settle must be a thoroughly honest, intelligent and objective one. It must be a realistic one when tested by the necessarily assumed expertise of the company.” [Bowers v. Camden Fire Ins. Assoc., 51 N.J. 62, 71, 237 A.2d 857, 861 (1968) ]. This expertise must be applied, in a given case, to a consideration of all the factors [emphasis in the original] bearing upon the advisability of a settlement for the protection of the insured. While the view of the carrier or its attorney as to liability is one important factor, a good faith evaluation requires more, [emphasis added] It includes consideration of the anticipated range of a verdict, should it be adverse; the strengths and weaknesses of all of the evidence to be presented on either side so far as known; the history of the particular geographic area in cases of similar nature; and the relative appearance, persuasiveness, and likely appeal of the claimant, the insured, and the witnesses at trial. Gardner v. Am. Mut. Liab. Ins. Co., 31 Cal.App.3d 843, 107 Cal.Rptr. 604, 607-697 (1973). Rova Farms Resort, Inc. v. Investors Insurance Company of America, 65 N.J. 474, 489-90, 323 A.2d 495, 503-04 (1974). (emphasis in original)

In my view, Granite clearly was obligated, pursuant to its contract with Ruffin, to act in good faith towards its insured in its settlement negotiations with the victim. If, on the other hand, Security had no duty to act in good faith regarding that portion of the insured’s coverage reinsured by Security, then the insured could lose the benefit of its agreement with the original insurer. In this case, where $2,500 in coverage is reinsured, if the reinsurer has no obligation to act in good faith where the reinsurance agreement limits the ability of the original insurer to settle claims of the insured, then in effect the insured has but $7,500 of coverage which is subject to the good faith requirement. The insured receives less than what he has bargained for. I do not interpret the duties of the parties to permit such a result.

Therefore, although Security was not required to enter into direct or active settlement negotiations with the victim, I would hold that it was obligated to act in good faith concerning that portion of the negotiations involving the $2,500 of coverage reinsured.

II.

The second issue is phrased as whether or not the reinsurance agreement created an agency relationship between Granite and Security.

This issue amounts to whether the agreement between Granite and Security was in fact a contract of reinsurance. As stated by the distinguished trial judge WILLIAM M. MARUTANI in his well-reasoned opinion:

The Agreement between Security and Granite was not a strict contract of reinsurance. The definition suggests that the reinsurer remains in the background and agrees to indemnify the reinsured against its loss. As the previous discussion of the provisions of the Agreement makes clear, Security did not contract to take a back seat. It had the right to associate itself with Granite in the defense of any claim, suit or proceeding. Moreover, it retained the right to control settlement negotiations through its veto power over any settlement offer of more than $7,500. “Liability under any written contract must be determined upon consideration of the words employed, read in the light of attending circumstances.” Fidelity & Deposit Company v. Pink, 302 U.S. 224, 229 [58 S.Ct. 162, 164, 82 L.Ed. 213] (1937).
Therefore, Security cannot escape the fiduciary duty imposed on it by hiding behind the label “reinsurer.” If Security has no duty to act in good faith, the insured Ruffin will be unable to protect himself. In the original insurance contract between Granite and Ruffin, Granite was given the exclusive right to settle, defend, investigate, or negotiate any claim or suit against Ruffin. Under this contract of insurance, Granite assumed a fiduciary duty imposed by law to act in good faith. Granite then transferred, unbeknownst to Ruffin, a portion of its exclusive right to Security. Security also received a pro rata share of the premiums paid by Ruffin. Thus, unless a fiduciary duty is imposed, Security receives these benefits with no risks, leaving Ruffin with less protection than he thought he had.

Reid v. Ruffin, No. 4988 October Term 1972, slip op. at 23-4 (C.P. Philadelphia County, 1981) (footnotes omitted).

I agree with the learned trial court that the agreement in the instant case amounted to something other than a “strict contract of reinsurance.”

The trial court determined, as a matter of law, that there existed an agency relationship between Granite and Security, based upon the agreement.

Agency is the relationship resulting from (1) the manifestation of consent of one person to another that (2) the other shall act on his behalf and subject to his control, and (3) consent by the other so to act. Smalich v. Westfall, 440 Pa. 409, 413-14, 269 A.2d 476, 480 (1970); Restatement (Second) of Agency § 1(1) (1958).

“The right of control by the principal may be exercised by prescribing what the agent shall or shall not do before the agent acts, or at the time when he acts, or at both times * * *. Further, the principal has power to revoke the agent's authority, although this would constitute a breach of his contract with him * * *. The control of the principal does not, however, include control at every moment; its exercise may be very attenuated and, as where the principal is physically absent, may be ineffective:” Restatement (Second), Agency § 14, comment a.

Smalich v. Westfall, id., 440 Pa. at 414-15, 269 A.2d at 480-81.

A servant is an agent whose physical conduct in performance of service is controlled or is subject to the right of control by the master; therefore, in such a relationship, the master controls not only the results of the work, but the manner in which the work is performed. Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 431 A.2d 1073 (1981).

Article 8 of the agreement here under review requires Granite to, inter alia, (1) afford Security the opportunity to be associated with Granite in the defense of any claim, suit or proceeding, (2) cooperate in every respect in the defense or control of such claim, suit or proceeding, (3) allow Security to confer with trial counsel retained by Granite with reference to any claim, (4) give notice to Security on all claims in excess of $7,500 and all claims which, in Granite’s judgment, could develop into losses in excess of $7,500, and (5) obtain the consent of Security for any settlement in excess of $7,500, except in those instances where an immediate decision is necessary and it is impracticable to obtain Security’s consent, in which case Granite shall exercise the necessary power in the common interest of both parties.

The entire panoply of rights maintained by Security and the concomitant obligations imposed upon Granite by this agreement are such that I would hold that the trial court did not err in determining that, despite the use of the term reinsurer in the agreement, Security and Granite had created an agency agreement concerning that portion of the insurance coverage reinsured whereby Security functioned as the principal/master and Granite the agent/servant.

The right of control by Security over the actions of Granite extended only to claims involving the reinsured portion of the coverage. In the instant case, the claim by Reid clearly involved that coverage. The injuries to Reid were undisputed as being permanent to a certain extent. All offers of settlement involved sums in excess of $7,500.

Therefore, any bad faith by Granite within the scope of Granite’s authority should be attributed to Security because of this agency relationship. See Smalich v. Westfall, supra.

Security has not disputed the determination that Granite acted in bad faith. In this regard the trial court, in its opinion, stated:

The evidence against Granite was sufficient, if not overwhelming, to sustain the jury’s verdict that Granite had acted in bad faith in handling the claim against its insured, Ruffin. The examination of the injured plaintiff, made by its own physician, revealed that this working plaintiff would “never fully regain the use of the arm.” Granite was also kept currently informed of the plaintiff’s wage loss and medical expenses, totalling $5,500. Further, Granite received copies of statements by two witnesses, stating that its insured had entered the intersection on a red light.
Notwithstanding this compelling evidence as to liability, —which fell far short of the standard that “the chance of a finding of nonliability be real and substantial,” Cowden, supra,—and notwithstanding notice from its own doctor of the serious, permanent nature of the injuries to the plaintiff, and notwithstanding notice that the plaintiff had already incurred definable losses of $5,500,—not to mention pain and suffering, future losses, etc.—Granite failed to respond to plaintiff’s counsel’s 30-day offer to settle for the modest amount of $10,000. Approximately two weeks after expiration of the 30-day offer, Granite offered $9,000, and upon such being rejected, subsequently increased its offer to $9,500—still seeking to “save” itself (in fact, Security) $500. During this entire period of negotiating, at no time did Granite inform Ruffin, its insured, of plaintiff’s demand, Granite’s offers, or give the insured an opportunity to participate by contribution. It was not until the time of trial that Granite, for the first time, offered the policy limit of $10,000. Such was rejected, and the jury returned a verdict against insured Ruffin in the amount of $80,000.
It is difficult to conjure a more compelling set of facts which will lead to a finding of “bad faith” on the part of an insurance carrier.

Reid v. Ruffin, Slip op., supra at 18-20. (footnotes omitted).

III.

The third issue concerns whether there was sufficient evidence of Security’s bad faith to have submitted this issue to the jury.

Security argues that (1) the evidence indicates that Granite misled Security by Granite’s failure to promptly notify Security of the victim’s initial offer to settle for $10,000 and that (2) Security had no right to force or initiate settlements directly with the victim.

I agree that Security was not informed of Reid’s original offer to settle within the policy limits until after the offer to settle had expired. Granite was negligent in not informing Security of the offer promptly. However, there is no indication that Security discussed the making by Granite of any offer at any time, nor is there evidence that Security requested any additional pertinent information concerning Reid’s claim, other than whether the insured had been sent an excess letter and what the ad damnum clause of Reid’s complaint set forth.

Despite Granite’s determination, as communicated to Security initially, that no reserve need be held by Security, the information that was supplied by Granite to Security concerning Reid’s claim was sufficient, in my view, to have alerted Security that the value of the claim and the insured’s liability, would call for an offer of settlement to the victim of the policy limit. Therefore, I believe Security was under a duty to, at a minimum, discuss the feasibility of such an offer to Reid with Granite.

Security alleges that it had no right to force or initiate settlements with the victim directly. With this determination I agree. However, Security had the right and the duty to inform Granite that the $2,500 coverage reinsured was available to Granite for an offer. This right and duty arise from the provisions of Article 8 of the agreement discussed supra. Furthermore, this right and duty are underscored by the fact that Granite subsequently made offers of $9,000 and $9,500. Clearly, Granite was then willing to offer all of its retained coverage, $7,500, but hesitant to offer all of Security’s coverage of $2,500. From the time of the first offer in settlement on May 30, 1973, Granite was acting solely as Security’s agent when negotiating a settlement involving more than the dollar amount of the insurance coverage retained by Granite alone. Security’s failure to inform Granite of Granite’s permission to offer the full $10,000 in coverage amounted to ratification of Granite’s acts by silence. See Restatement (Second) of Agency § 319 (1958).

Granite made its offers of settlement as the agent of Security. Security was informed of its agent’s offers but failed to. object to their nature and amount. Therefore, Security should be imputed with any bad faith determined to have been made by Granite.

IV.

Appellant’s final issue is whether the trial court erred in making certain evidentiary rulings and its charge to the jury with respect to the agreement, Security’s duties and to related matters.

I note initially that the issues concerning rulings on: (1) the amendment of certain Answers to Requests for Admissions, (2) the reading of allegedly objectionable Requests for Admissions to the jury, and (3) the admission of a medical report and testimony with respect to it have been waived by Appellant for failure to preserve them by means of post-trial motions. Commonwealth v. Gates, 295 Pa.Super. 213, 441 A.2d 425 (1982).

The first issue properly preserved by Appellant is whether the trial court erred in permitting a witness to testify, as against the reinsurer, as to his opinion concerning what an insurer’s claimsperson’s reaction should have been to certain alleged facts. As Appellant has failed to specifically argue this point in its brief, other than to state it as an issue, I would not consider the merits thereof. See Pa.R. A.P. 2119(a), (e); Commonwealth v. Shaw, 494 Pa. 364, 370 n. 3, 431 A.2d 897, 900 n. 3 (1981); Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982).

The next issue concerning evidentiary rulings involves the trial court’s refusal to permit Appellant to cross-examine Reid’s expert witness concerning the reinsurance agreement.

It is well established that the trial court has wide discretion concerning the scope and limits of cross-examination and will not be reversed absent an abuse of discretion. Gatling v. Rothman, 267 Pa.Super. 566, 407 A.2d 387 (1979). The trial court properly refused to allow cross-examination concerning reinsurance in light of the court’s determination that this was not a standard reinsurance agreement. The trial court held, and I would affirm, that Security could be held liable for the bad faith conduct of Granite because of the agency relationship created by the agreement. Therefore, cross-examination concerning reinsurance was irrelevant because of this determination and the trial court did not abuse its discretion in limiting cross-examination of this expert witness.

Concerning the alleged errors by the trial court concerning the charge to the jury, I find Appellant’s arguments to be meritless.

CONCLUSION

My review of the reinsurance agreement here involved leads me to agree with the distinguished trial court, the Honorable WILLIAM M. MARUTANI, that Security was indeed obligated to act in good faith concerning that portion of the negotiations involving the $2,500 of coverage reinsured. I have no difficulty in finding that, on the facts and wording of the agreement here presented, the trial court did not err in determining that an agency relationship had been created by and between Security and Granite concerning that portion of the coverage reinsured. Since an agency relationship, as a matter of law, did exist in my opinion, it is unnecessary to analyze Security’s alleged bad faith, since the bad faith of its agent, Granite, is clear and indisputable. Finding no error in the rulings of the trial court or in its charge to the jury, the judgment entered May 19,1981 in favor of plaintiff Reid and against garnishee-appellant Security should be affirmed.

      . Any right to recover by a victim against either the original insurer or the reinsurer arises by means of the original insured's right against either or both insurance companies.

        . It has been held that an insured has a cause of action in either assumpsit or tort against the insurer for wrongful refusal to settle based on a breach of the insurer’s obligation to represent in good faith the rights of its insured. Gray v. Nationwide Mutual Insurance Company, 422 Pa. 500, 223 A.2d 8 (1966).

      . An issue of agency, based on an interpretation of a written instrument, is a question of law to be determined by the court. Gillian v. Consolidated Foods Corp., 424 Pa. 407, 227 A.2d 858 (1967).

      . I find little, if any, significance in the fact that Granite routinely made settlement offers involving coverage reinsured by Security without securing Security’s permission, as required by Article 8 of the agreement.

      . I disagree with Appellee that all claims concerning the evidentiary rulings and jury charge were waived for failure of Appellant to brief the issues. See Rule 340 (E), Philadelphia Court Rules.

      . The trial court, in its opinion filed March 11, 1981, following an exhaustive review of the facts, concluded that Security had, itself, violated its duty of good faith, noting that “[w]hen confronted with the potential of a substantial verdict for the opposing party who has suffered serious permanent injuries, it is unreasonable that the party facing such liability would not take affirmative action to limit its liability as much as possible." Reid v. Ruffin, Slip op., supra, at 26.