text:
    625 A.2d 1226
    COMMONWEALTH of Pennsylvania v. Mark C. PULLANO, Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1993.
    Filed June 3, 1993.

      William R. Bernhart, Reading, for appellant.
    Narcy L. Hughes, Asst. Dist. Atty., Reading, for Com., appellee.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the July 17, 1992 judgment of sentence for driving under the influence of alcohol and resisting arrest or other law enforcement. Appellant presents three issues for our consideration on appeal:

1. Whether the evidence was insufficient to warrant conviction of 18 Pa.C.S.A. § 5104 — resisting arrest, in the absence of any evidence of substantial risk or force.
2. Whether the trial judge erred in charging the jury in regard to appellant’s failure to submit to chemical testing without an instruction pursuant to 75 Pa.C.S.A. § 1547 that no presumption shall arise from this evidence.
3. Whether the trial court erred in regard to the rulings involving the refusal to submit to chemical testing.

Appellant’s Brief at 2. For the following reasons, we affirm.

On March 15, 1992, appellant was charged with driving under the influence of alcohol, disorderly conduct, and resisting arrest or other law enforcement. On March 2, 1992, following a jury trial, appellant was found guilty of driving under the influence and resisting arrest. The court also entered an order granting appellant’s demurrer to the charge of disorderly conduct. Post-trial motions were filed and denied. This timely appeal followed.

The relevant facts are as follows. On March 15, 1991 shortly after 10:00 p.m., Officer Brian Burr of the Reading City Police observed a red Volkswagen pull out in front of several oncoming vehicles. Officer Burr followed the vehicle for approximately four blocks during which time he observed the vehicle swerve toward parked cars. Officer Burr then stopped the vehicle and approached the car. When he approached appellant and requested proof of identification and registration, he detected a strong odor of alcohol emanating from appellant. As appellant exited his vehicle, Officer Burr observed him use the vehicle to support himself and sway and wobble as he walked.

Officer Burr requested appellant to perform field sobriety tests. Appellant failed the finger to nose test and refused to participate in any further field sobriety tests. Officer Burr then placed appellant under arrest for driving under the influence of alcohol and requested appellant to submit to a blood-alcohol test. Appellant then became verbally abusive towards Officer Burr. Officer Burr then summoned a police wagon to transport appellant to the Berks County DUI Processing Center.

At the processing center, appellant became unruly. Officer Burr and three other police officers escorted appellant down in the elevator to the basement of the courthouse where the DUI Processing Center was located. Once inside the elevator, appellant began to thrash his body about and ram the police officers in the elevator. N.T. 3/2/92 at 31. Two officers had to restrain appellant by forcefully holding him in the corner of the elevator. N.T. 3/2/92 at 31. Appellant continued to thrash about with his body and cut his chin in the process. N.T. 3/2/92 at 31. Once at the Processing Center, appellant continued his physical resistance requiring two officers to restrain him on a bench he was seated at. Nevertheless, appellant kept jumping out of the bench towards the officers and eventually broke the arm of the bench.

Appellant first argues that the evidence was insufficient to support a verdict for resisting arrest. After carefully reviewing the parties’ briefs and the record of the proceedings below, we conclude that the trial court has properly addressed appellant’s contentions in its well reasoned opinion. Accordingly, we find the evidence sufficient to support appellant’s conviction for resisting arrest for the reasons stated therein.

Appellant next argues that the trial court erred in its charge to the jury concerning appellant’s refusal to submit to a blood-alcohol test, as it did not instruct the jury pursuant to 75 Pa.C.S.A. § 1547 that no presumption shall arise from this refusal. Once again, after carefully reviewing the parties’ briefs and the record of the proceedings below, we conclude that the trial court has adequately addressed appellant’s argument. Accordingly, we find the jury instruction proper for the reasons stated therein.

Finally, appellant argues that the trial court erred in its rulings involving appellant’s refusal to take a Blood-alcohol test. Essentially, appellant contends that the Commonwealth was collaterally estopped from introducing evidence of appellant’s refusal to submit to a blood-alcohol test, as appellant had successfully appealed the suspension of his drivers license for failure to take the blood-alcohol test. We disagree. Collateral estoppel requires:

1) the issue decided in the prior adjudication was identical to the one presented in the later action; 2) there was a final judgment on the merits; 3) the party against whom the plea is asserted was a party or- in privity with a party to the prior adjudication; and 4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action.

McCullough v. Xerox Corp., 399 Pa.Super. 135, 143, 581 A.2d 961, 965-66 (1990) (quoting Sanders v. Sanders, 384 Pa.Super. 311, 319, 558 A.2d 556, 559 (1989)). In the instant case it is clear that appellant fails to satisfy the last two requirements of the test.

The Commonwealth Court recently addressed the question of whether a determination in a criminal trial that appellant did not refuse to take a breathalyzer test collaterally estopped the Pennsylvania Department of Transportation from suspending an individual’s license based upon failure to submit to the test in Com., Dept. of Transp. v. Crawford, 121 Pa. Commw. 613, 550 A.2d 1053 (1988). The court stated:

Clearly, the third and fourth elements of the “collateral estoppel” test are not present here. Firstly, we do not believe the Department and the District Attorney stand in sufficient relationship so thát the Department could be considered the same party as, or in privity with the District Attorney. Secondly, as we have already stated, the Department’s civil suspension is separate and distinct from the criminal proceeding initiated by the Clarion County District Attorney.

Id. at 616, 550 A.2d at 1055. We believe that the cogent analysis applied by the Commonwealth Court is equally applicable where, as here, proceedings on appellant’s license suspension preceded the criminal trial.

As stated in Crawford, the District Attorney’s office and the Department of Transportation cannot be deemed as the same party or to be in privity with each other. Additionally, as the criminal and civil proceedings are distinct and separate, the District Attorney of Berks County did not participate in the civil proceeding and thus did not have a “full and fair opportunity to litigate the issue in question.” Thus, we find that the trial court did not err in its determination that the Commonwealth was not barred by collateral estoppel from introducing evidence about appellant’s failure to submit to a blood-alcohol test. Accordingly, the judgment of sentence is affirmed.

Affirmed.

        . 75 Pa.C.S. § 3731.

      . 18 Pa.C.S. § 5104.

      . 18 Pa.C.S. § 5503.

      . The court granted appellant’s demurrer to this charge on the basis that: "the testimony fails to establish that all of these actions occurred in public, as required, and were done with the intent to cause public inconvenience or creating a substantial risk of public inconvenience.” N.T. 3/2/92 at 39.

      . Commonwealth v. Shinn, 368 Pa.Super. 436, 534 A.2d 515 (1987).


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    625 A.2d 1228
    Kenneth LEONARD, Shirley Ruffner and David L. Leonard, Administrators of The Estate of Elizabeth Gault, a/k/a Betty Gault, Appellants, v. LATROBE AREA HOSPITAL and George E. Mamo, M.D.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1993.
    Filed June 3, 1993.

      See also, 549 A.2d 997.
    Anthony W. Debernardo, Jr., Greensburg, for appellants.
    Sheila M. Weis, Pittsburgh, for appellees.
    Before DEL SOLE, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge:

This appeal is from the learned lower court’s order granting appellees’ motion for summary judgment. The salient question we are asked to discuss and decide is as follows: What is the responsibility of a psychiatrist or psychologist to warn a third person of the violent propensities of a patient who is under his or her care when the patient does not specifically identify the victim whom the patient later harms. In Dunkle v. Food Service East, Inc., 400 Pa.Super. 58, 582 A.2d 1342 (1990), we said “we are cognizant of the extreme importance of this complex issue, as well as the public interest in its resolution.”

The facts, as disclosed in the pleadings, are as follows. James Gault was admitted to Latrobe Hospital’s psychiatric unit after taking an overdose of aspirin on September 10,1983. He remained there at the hospital for eight days under the care of Dr. George E. Mamo, M.D., Psychiatrist, until September 27, 1983. Two months after his release, Mr. Gault on November 25, 1983 shot and killed his wife Elizabeth. As a result, the children of Elizabeth Gault filed an action against the Latrobe Hospital and Dr. Mamo alleging that their mother’s death was the result of the negligent care and treatment of Mr. Gault by the appellees. Appellants further allege that Dr. Mamo, upon release of Mr. Gault, failed to warn them or their mother of his dangerous propensities.

The appellees filed a motion for summary judgment on the premise that no common law rule or statutory requirement imposes upon them a duty to warn a non-patient of a patient’s dangerous propensities under the circumstances of this case. On the other hand, the appellants contend that issues of fact exist on grounds supporting the claim that the acts of Mr. Gault were foreseeable by Dr. Mamo while he was under the doctor’s care. The learned lower court granted appellees’ motion for summary judgment and this appeal was subsequently perfected by the children of Mrs. Gault. After careful review of the record, briefs and the learned lower court’s opinion, we affirm the judgment of the court.

The trial court below, in commenting on its granting of appellees’ motion for summary judgment, said:

The defendants maintain that there is no common law rule or statutory requirement which imposes a duty upon a psychiatrist to warn a non-patient of a patient’s dangerous propensities. The Plaintiffs respond that an issue of fact exists and liability is dependent upon whether the acts of the patient were foreseeable.
The Defendants’ position is that the Plaintiffs have failed to allege facts which would support a finding that the patient threatened to inflict harm on a particular individual. By affidavit, Dr. Mamo has testified that no such communication existed. The Defendants argue that the Plaintiffs have merely alleged that a hostile dependent relationship existed between the decedent and James Gault and that the' Defendants were aware of the violent propensities of James Gault through the Plaintiffs.
The undisputed facts in the present matter indicate that the Defendants were aware that the decedent’s husband had in the past, abused and threatened the decedent. At the time of the discharge of James Gault, it is also undisputed that there were signs of a hostile dependent relationship with the decedent and James Gault was diagnosed as having an organic brain syndrome with depression. The Plaintiffs have alleged that the Defendants failed to warn the family of James Gault’s mental condition, his propensity towards violence, and to explain a “possible” confrontation with his wife.

Trial court opinion filed May 21, 1992 at 1-2 (citations omitted). Thus, conceding these allegations by appellants, the learned trial court found they were insufficient to present a cognizable claim and granted summary judgment in favor of appellees. Appellants’ salient argument on appeal is that the lower court erred in declining to extend to a psychologist a duty to warn a third party of a patient’s dangerous propensities and in granting summary judgment in favor of the doctor.

Prior to this court’s decision in Dunkle v. Food Service East Inc., supra, we had no precedential Pennsylvania law which gave guidance into this very important area of social law. In Dunkle, in the absence of stare decisis, we looked to other jurisdictions which had established views on the subject. In Tarasoff v. Regents of Univ. of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976), the California Supreme Court held that in limited circumstances a psychologist may have a duty to protect an identifiable and foreseeable victim of a patient’s dangerous propensities. In that case a patient confided his intention to a psychologist that he intended to kill his girlfriend, Tatiana. The California Supreme Court held that therapists cannot escape a liability merely because the victim is not their patient. “That when a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.” Id. at 431, 131 Cal.Rptr. at 20, 551 P.2d at 340.

Therapists may be required (1) to warn the intended victim or others who are likely to apprise the intended victim of the danger; (2) notify the police, or (3) take whatever steps that our reasonably necessary under the circumstances. Tarasoff explicitly held that where a victim is specifically identified and there is foreseeably a danger to that victim the therapist has the responsibility of notifying that victim concerning the violent propensities of a patient. Id. at 439, 131 Cal.Rptr. at 25, 551 P.2d at 345. By entering into a doctor/patient relationship, the therapist becomes sufficiently involved to assume some responsibility for the safety not only for the patient himself, but also of third parties whom the doctor knows to be threatened by the patient. Id. A therapist must exercise that reasonable degree of skill, knowledge and care ordinarily professed and exercised by members of that professed specialty under similar circumstances. Id.

Tarasoff also held that a patient’s right of confidentiality must be weighed against the public interest in safety from violent assault; that there is no privilege of confidentiality after the psychologist has reason to believe that his or her patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger. See id. In Tarasoff, the court relied upon the fact that the psychiatrist had knowledge that a specific person was targeted for death at the hands of his patient. However, the California Supreme Court has refused to extend this rationale. In Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728 (1980), the court was confronted with a claim against a county alleging negligence in releasing from custody a juvenile delinquent who was known to have dangerous and violent propensities toward young children and who within 24 hours after being released sexually assaulted and murdered plaintiffs’ son who resided in the community into which the juvenile was released. In rejecting the plaintiffs’ contention that their complaint stated a cause of action, the Supreme Court of California emphasized that in Tarasoff there was a specifically foreseeable and identifiable victim. While the Thompson court stated that the intended victim need not be specifically named, he must be “readily identifiable.” Thompson v. County of Alameda, 27 Cal.3d at 752-53, 167 Cal.Rptr. at 76, 614 P.2d at 734.

The court in Thompson rejected the contention that as a neighborhood child, the plaintiffs’ decedent was a foreseeable victim of the released juvenile. Under circumstances in which an individual poses a risk of danger to a significant portion of the community, the court declined to impose any duty to give warnings primarily because it determined that the value of such warnings was not great. In Tarasoff the warnings were directed at making the victim aware of the danger to which she was “uniquely exposed.” The threatened target was “precise.” In such a case, “it is fair to conclude that warnings given discreetly and to a limited number of persons would have a greater effect because they would alert those particular targeted individuals of the possibility of a specific threat pointed at them.” Id. at 755, 167 Cal.Rptr. at 78, 614 P.2d at 736.

In Leedy v. Hartnett, 510 F.Supp. 1125 (M.D.Pa.1981), aff'd, 676 F.2d 686 (3d Cir.1982), the U.S. District Court for the Middle District of Pennsylvania discussed cases from New Jersey, Florida, North Dakota and Nebraska analyzing the various views of those states, depending upon the facts and circumstances of the cases decided by them. With this assistance we addressed the issue in Dunkle, supra, in which we affirmed the trial court’s granting summary judgment in favor of the psychiatrist and other professionals. In reviewing Tarasoff, supra, we held that the facts of Dunkle did not result in the imposition of a duty contemplated by the California court. We stated in Dunkle:

This Commonwealth has never expressly adopted the California opinion in Tarasoff. However, even if we were to accept the Tarasoff holding as law in this jurisdiction, we would not find that decision determinative of the instant appeal. Conversely, we find that the Tarasoff rationale should be confined to a very limited circumstances presented in that case. We narrowly construe the California court’s holding. Contrary to the appellants’ position in the instant case, we will not interpret Tarasoff to mean that, in effect, strict liability should be imposed upon treating physicians for the wrongful acts of their patients where there is any reason to believe that a third party might be endangered by the patient’s possible misconduct and the medical professional fails to inform the third party of same. Such a rule would be unworkable and illogical. More importantly, it would infringe upon other well established doctrines in our jurisprudence.

Dunkle v. Food Service, East, Inc., 400 Pa.Super. at 67-68, 582 A.2d at 1346-47 (footnote omitted).

The patient in Dunkle did not communicate any inclination to harm his victim. In the instant case, with all the awareness on the part of Dr. Mamo that Mr. Gault could turn to violence, there was no notice or warning to Dr. Mamo that Mrs. Gault was specifically identified by Mr. Gault as the intended victim. In this case the plaintiffs themselves knew beforehand of Mr. Gault’s dangerous inclination. It is a curious lapse in logic on plaintiffs’ part to claim that Dr. Mamo should have warned them of information they already had, and with which they were familiar. Under the facts in Dunkle, supra, we declined to extend the duty to protect a victim who was non-identifiable in advance of her death and who arguably was a non-foreseeable third party victim. Thus, there is currently no common or statutory law, and no court decision in Pennsylvania, requiring that a psychiatrist or psychologist owes a duty to warn or otherwise protect a non-patient where the patient has not threatened to harm a specific person.

In Dunkle we concluded that “a psychologist (or psychiatrist) owes no duty to warn or otherwise protect a non-patient where the patient has not threatened to inflict harm on a particular individual.” Id. at 68, 582 A.2d at 1347. Such a conclusion was necessary to support the patient-psychologist relationship and privilege. Id.

We find no common law'rule that imposes a duty on a psychologist or psychiatrist to warn a non-patient of a patient’s dangerous propensities. [Nor in Pennsylvania] is there a statutory duty to protect a non-patient from similar potential harm. In the absence of legislative directive or reforms that specifically address this problematic issue, we decline to impose such a stringent legal duty on health care professionals under the fact of this case.

Id. at 69, 582 A.2d at 1347.

The instant case is similar to Dunkle and Leedy, supra, on the issue of a psychiatrist’s duty to warn against the dangers of a potentially violent patient. In Dunkle, we found no duty when the complainant alleged the following:

(1) Senie Eyer attended “one or more counseling sessions” with Bruce Tindal, provided by Additional Defendants; (2) Bruce Tindal “exhibited signs and symptoms of his deteriorating mental condition, indicating that he presented a danger to himself, and specifically to Senie Eyer;” (3) prior to March 16, 1985, Additional Defendants knew or should have known Bruce Tindal “would present and did present a danger to himself and to Senie Eyer;” (4) Additional Defendants were negligent in failing to warn Senie Eyer of, and protect her from, Bruce Tindal’s dangerous propensities; and (5) Senie Eyer was the foreseeable victim of violent behavior on the part of Bruce Tindal.

Id. at 65, 582 A.2d at 1345 (quoting the trial court opinion).

In Leedy, supra, the issue was whether the personnel of the Veteran’s Administration hospital had a duty to warn the Leedys that Hartnett, a former patient, exhibited violent inclinations when he drank. The personnel, aware that Hart-nett would be staying with the Leedys when he left the hospital, failed to inform them of any potential danger. Subsequently, Hartnett attacked the Leedys. The court in Leedy held that a victim may not be deemed “readily identifiable” merely because there exists a standard possibility that increased contact between a potentially violent patient and another will yield a higher likelihood of an attack. Thus, it would seem in the above cases, not only foreseeability of a general danger, but the specific identity of an intended victim, must be brought to the attention of the physician before it can be held that a physician has a duty to warn the intended victim. See also Crosby by Crosby v. Sultz, 405 Pa.Super. 527, 592 A.2d 1337 (1991) and DiMarco v. Lynch Homes-Chester County, 384 Pa.Super. 463, 559 A.2d 530 (1989), aff'd, 525 Pa. 558, 583 A.2d 422 (1990) (distinguishing similar issues on the facts). Under all the circumstances present in this case, we affirm the learned lower court’s grant of a motion for summary judgment.

Judgment affirmed.

DEL SOLE, J. concurs in the result.

      . For the proper standard of review when considering an appeal from the grant of a motion for summary judgment, see Marks v. Tasman, 527 Pa. 132, 134-35, 589 A.2d 205, 206 (1991).

      . In Tarasoff, the patient confided his intentions to kill the plaintiffs' decedent to his psychologist. The patient was temporarily detained by campus police at the therapist's request. Upon patient’s release by the police, he killed the plaintiffs’ decedent. Id., 17 Cal.3d at 430, 131 Cal.Rptr. at 19-20, 551 P.2d at 339-40.


author: TAMILIA, Judge:

text:
    625 A.2d 1232
    Jonathan W. HALL v. AMICA MUTUAL INSURANCE COMPANY, William J. Skelly and Harold M. Faust, Jr. Appeal Of AMICA MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 1, 1993.
    Filed June 1, 1993.

      Benjamin E. Zuckerman, West Conshohocken, for appellant^
    Marshall A. Bernstein, Philadelphia, for appellees.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   TAMILIA, Judge:

Amica Mutual Insurance Company appeals from the judgment entered in favor of Jonathan W. Hall in the sum of $3,000,000 plus six per cent interest from September 30, 1991, the date of the arbitration award, to April 29,1992, the date of judgment.

In 1989, appellee was seriously injured in an automobile accident which occurred in Barbados. The accident happened when his car was forced off the road by another motorist who subsequently left the scene. As a result of the accident, appellee sustained numerous and catastrophic injuries.

At the time of the accident, appellee had an automobile insurance policy with appellant which provided him with uninsured motorist benefits of $1,000,000 per accident. He was also insured under an AMICA policy carried by his parents with whom he lived. It provided $1,000,000 uninsured motorist coverage for each accident and each of their two vehicles. Through stacking, the total amount of coverage available to appellee was $3,000,000.

Appellant denied appellee’s claim for uninsured motorist benefits, citing a provision in its policy which stated that the policy applies only to accidents and losses which occur within the United States of America, its territories or possessions, Puerto Rico or Canada.

The case was submitted to arbitration, and the panel read briefs and heard oral argument on the issue of the enforceability of the territorial exclusion provision. Based upon Gerardi v. Harleysville Insurance Co., 293 Pa.Super. 375, 439 A.2d 160 (1981), the panel declared the restriction invalid and, on September 30, 1991, awarded appellee $3,000,000.

The trial court, relying upon Pennsylvania cases in which appellate courts reviewed awards where a claimant challenged a provision of an insurance policy as being contrary to public policy or a constitutional, legislative or administrative mandate, denied appellant’s petition to vacate the award, finding it lacked jurisdiction to review the arbitrator’s decision, See Azpell v. Old Republic Insurance Co., 526 Pa. 179, 584 A.2d 950 (1991); Davis v. Government Employees Insurance Co., 500 Pa. 84, 454 A.2d 973 (1982); Sands v. Andino, 404 Pa.Super. 238, 590 A.2d 761 (1991), appeal denied, 529 Pa. 641, 600 A.2d 1259 (1991); Kester v. Erie Insurance Exchange, 399 Pa.Super. 206, 582 A.2d 17 (1990), appeal denied, 527 Pa. 624, 592 A.2d 45 (1991); and Webb v. United Services Automobile Association, 227 Pa.Super. 508, 323 A.2d 737 (1974). Here, the trial court refused jurisdiction since the insurer was asking the court to overturn the arbitration panel’s finding that a provision in the policy was contrary to a legislative mandate.

The trial court also based its conclusion upon the following passage from Webb, supra:

Since the type of action in which a court will take jurisdiction is necessarily an attack on the policy itself, and since today the carrier always writes the policy, the carrier may never seek direct judicial determination, for to do so would be to attack the very policy it had written. The carrier could only seek a direct judicial determination where it wishes to contest a regulation or statute requiring a certain clause.

Id. at 516 n. 8, 323 A.2d at 741 n. 8. Here, appellant is not attacking its policy, but is instead asking the court to review a decision which invalidated a provision in its policy.

We disagree with the trial court and find it had jurisdiction to review the panel’s award. Although numerous cases state a court can review a claimant’s unsuccessful challenge of a provision on certain grounds, supra, our extensive research uncovered no cases which state a court may not review an appeal of an insurer from a successful challenge of a provision by a claimant.

In Serefeas v. Nationwide Insurance Co., 338 Pa.Super. 587, 488 A.2d 48 (1985), without specifically addressing the jurisdiction issue, this Court and the trial court entertained the same type of challenge as the one before us. Serefeas was injured but her claim to Nationwide was denied because of a territorial exclusion provision in her policy. The arbitrators ruled in the claimant’s favor, the trial court rejected the insurer’s challenge to the board’s finding that the territorial exclusion clause was violative of the language and intent of the No-fault Act, and this Court affirmed having been persuaded “the trial court was correct in invalidating the territorial exclusion.” Id. at 593, 488 A.2d at 51.

Logically, we cannot permit a claimant who loses an arbitration decision to raise this issue and allow the court to review it, while under the same circumstances, prohibit an insurer from defending its policy provisions when the arbitration panel ruled they were contrary to legislative mandate.

Although the trial court incorrectly determined it lacked jurisdiction to vacate the award, it nonetheless reviewed the merits of the case and in its well reasoned analysis, with which we agree, found that the territorial exclusion contained in appellant’s policy was invalid and unenforceable.

The seminal case is the one which was applied by the arbitration panel, Gerardi v. Harleysville Insurance Co., 293 Pa.Super. 375, 439 A.2d 160 (1981). The Superior Court held that a territorial restriction provision in a Pennsylvania motor vehicle insurance policy which excludes from uninsured motorist coverage, accidents occurring outside of the United States, its territories or possessions, Puerto Rico or Canada, is invalid and unenforceable at law. The Superior Court stated that the paramount concern under the Uninsured Motorist Act is the protection of the insured person from those who are uninsured, therefore, the territorial exclusion violates the purpose of the Act.
The holding of Gerardi was followed in the case of Serefeas v. Nationwide Insurance Co., 338 Pa.Super. 587, 488 A.2d 48 (1985). In Serefeas, an automobile policy was issued which contained a territorial exclusion limiting coverage to accidents occurring only in the United States, its territories or possessions, and Canada. The plaintiff was injured in an automobile accident in Yugoslavia and claimed uninsured motorist benefits. Nationwide denied the claim under its territorial exclusion clause.
Relying on Gerardi, the Serefeas court observed that both the No-Fault Act and the Uninsured Motorist Act specifically stated which exclusions would be permitted by the statute. The Superior Court held that Nationwide could not deny benefits to the plaintiff merely because she had been injured too far from Pennsylvania since “no mention in the No-Fault Act is made of an intent to exclude those injured outside a certain distance of the territorial boundaries of Pennsylvania”. As in Gerardi, the court held that the territorial exclusion in the policy was invalid.
Since Gerardi and Serefeas, Pennsylvania’s legislature has not placed any territorial exclusions in subsequently enacted automobile insurance laws, or indicated in any way a desire to overturn the decisions of the court on the subject. The relevant section of the Uninsured Motorist Act, Section 2000(e), which governs the instant case, remains the same today as it was when Gerardi was decided. Although the No-Fault Act, which was the subject of Serefeas, has since been repealed, the subsequent Motor Vehicle Financial Responsibility Law was equally silent on territorial exclusions. 75 P.S. § 1701, et seq. The same is true of the most recently enacted Motor Vehicle Financial Responsibility Act. Defendant’s heavy reliance on the enactment of later statutes governing insurance benefits totally fails to deal with the underlying reasoning of Gerardi namely the absence of specific language by the legislature and the territorial exclusion’s violation of public policy.

(Slip Op., Kremer, J., 11/13/92, pp. 9-10.)

Appellant stresses the territorial exclusion has been upheld in many other jurisdictions mainly for the public policy concern of controlling the cost of purchasing insurance. While this concern is legitimate, we are constrained to follow Pennsylvania law, which justifiably places a greater interest on protecting its citizens against injuries caused by uninsured motorists no matter where the accident occurs.

Appellant also contends Gemrdi failed to consider that the Insurance Commissioner of Pennsylvania issued regulations under the Uninsured Motorist Act which specifically authorized insurance companies to use a territorial limitation. See 31 Pa.Code § 63.2. This argument fails since it is well established “an administrative agency may not promulgate regulations contrary to the legislative intent expressed in the statutory provisions” to which the regulation relates. Mitchell v. Travelers Insurance Co., 522 Pa. 545, 555, 564 A.2d 1232, 1237 (1989).

Finally, we do agree with appellant that the trial court erred in awarding six per cent interest from the date of the award to the date of the judgment since the interest plus the principal amount of the verdict exceeded the allowable amount under the policy limits. Generally, “absent an insurer’s agreement to do so, an insurer is not liable for interest in excess of policy limits.” Incollingo v. Ewing, 474 Pa. 527, 536, 379 A.2d 79, 84 (1977); overruling Hafer v. Schauer, 429 Pa. 289, 239 A.2d 785 (1968). Noting that the policy was silent with respect to the recovery of interest, the trial court incorrectly concluded there existed an ambiguity which had to be construed in favor of the insured. Words in a contract are ambiguous when they are “reasonably capable of being understood in more than one sense” or they are “subject to more than one interpretation.” Black’s Law Dictionary 73 (5th ed. 1979). Here, the policy was not ambiguous with respect to the interest issue but was instead silent. Therefore, we must follow the rule announced in Incollingo and disallow the interest awarded in addition to the $3,000,000.

Judgment of $3,000,000 affirmed; judgment as to the payment of interest vacated.

Jurisdiction relinquished.


author: CAVANAUGH, Judge:

text:
    625 A.2d 1236
    Valerie FADEN, Appellee, v. John deVITRY and 340 North Queen Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1993.
    Filed June 1, 1993.

      John W. Metzger, Lancaster, for appellant.
    Gabriella H. Farhat, Lancaster, for appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   CAVANAUGH, Judge:

This is an appeal from a judgment entered upon a non-jury verdict in favor of appellee-employee, Valerie Faden. Suit was commenced for unpaid wages for the three-month period of time that Faden worked for appellant, John deVitry, as the manager of a restaurant called Cafe Dejon. The Cafe Dejon was owned by appellant 340 North Queen Corporation, a corporation whose sole shareholder and president was John deVitry. After working for three months without pay, Faden left Cafe Dejon in June, 1987. She brought suit in December, 1987 seeking wages, liquidated damages and attorneys’ fees under the Wage Payment and Collection Law, 43 P.S. § 260.1 et. seq. The complaint was later amended to include counts for breach of contract and in quantum meruit.

The matter was tried before the Honorable Lawrence F. Stengel. The judgment in the amount of $11,834.63 was against both defendants, jointly and severally. Among Judge Stengel’s findings of fact and conclusions of law were the following:

FINDINGS OF FACT
5. Valerie Faden and 340 North Queen Corporation agreed that Valerie Faden’s services would be valued at two thousand dollars ($2,000.00) per month.
6. Valerie Faden and 340 North Queen Corporation did not come to an agreement with respect to the manner of payment to Valerie Faden for her services as general manager.
7. Valerie Faden and 340 North Queen Corporation, by its representatives, discussed “equity sharing” or a partnership share as possible means of compensating Valerie Faden for her services.
CONCLUSIONS OF LAW
1. Valerie Faden had an expectation of compensation in the amount of two thousand dollars ($2,000.00) per month for her services as general manager.
2. The parties did agree to the value of Valerie Faden’s services in the amount of two thousand dollars ($2,000.00) per month.
3. The parties did not come to an agreement or a mutual assent as to whether the two thousand dollars ($2,000.00) per month compensation would be paid in stock, a partnership interest or in cash.
6. Valerie Faden was entitled to “wages,” within the meaning of the WPCL, for services rendered as general manager of the Cafe Dejon.
7. Failing an agreement as to the payment of compensation to Valerie Faden in shares of stock, partnership interest, or some form other than cash, Valerie Faden is entitled to be paid for the work she performed for Cafe Dejon under the doctrine of quantum meruit.

Lower Court Opinion, March 26, 1991.

After the appellants filed post-verdict motions, the lower court en banc adopted its prior order in favor of appellee.

On appeal, deVitry and 304 North Queen Corporation raise four inter-related issues for review:

I. Was the trial court correct in relying upon the “legal fiction” of a contract implied at law under quantum meruit as the basis for Plaintiffs recovery under the Wage and Payment Collection Law, 43 P.S. Section 260.1 et seq. (hereinafter “WPCL”), a statute which does not create a right to compensation and which is applicable only when an employer breaches an actual oral or written contract to pay an employee earned wages?
II. Was the trial court’s application of the WPCL warranted in the absence of a traditional employer/employee relationship between Plaintiff and Defendant?
III. Was the trial court correct in imposing vicarious liability upon Defendant John deVitry for the obligations of Defendant 340 North Queen Corporation?
IV. Did Plaintiff present adequate evidence at trial to support the trial court’s Conclusion of Law that the parties had agreed to the monetary value of Plaintiffs services?

We shall treat the first two issues together as they both implicate the trial court’s application of the Wage Payment and Collection Law (“WPCL”). Appellants argue that there was no express contractual obligation to pay wages and that the WPCL, therefore, provides no means by which Faden may collect money from them. They contend that Judge Stengel’s finding of Faden’s entitlement to payment under the doctrine of quantum meruit precludes application of the WPCL.

Appellants argue from the evidence they presented at trial that the nature of the relationship between 304 North Queen Corp. and Faden was a joint venture. They point to the testimony of defense witnesses to support a finding that an equity sharing arrangement rather than an employer-employee relationship existed between the parties. This line of argumentation ignores the fact that the trial court rejected this evidence in favor of that offered by Faden. Appellants’ position is fundamentally an attack upon the sufficiency of the evidence to support the verdict.

In considering the sufficiency of the evidence to sustain the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences, and determine only whether the evidence introduced at trial was sufficient to sustain the verdict. Taylor v. Celotex Corp., 393 Pa.Super. 566, 573, 574 A.2d 1084, 1088 (1990); Cooper v. Burns, 376 Pa.Super. 276, 280-281, 545 A.2d 935, 937 (1988), appeal denied, 522 Pa. 619, 563 A.2d 888 (1989).

When the evidence is viewed in the light most favorable to Faden, it is clear that it sufficiently supports the conclusion of the trial court that there existed an agreement as to the monthly value of Faden’s services ($2,000.00). Ms. Faden testified that she and John deVitry orally agreed that she would be paid $2,000.00 a month as general manager of Cafe Dejon. The lack of agreement was as to the form of compensation, i.e., cash, stock, or partnership interest. Under these circumstances, we find no error by the trial court in concluding that the WPCL applied.

The WPCL provides that a civil action may be brought by an employee to whom any type of wages is payable. 43 P.S. § 260.9a(a). Wages, by statutory definition, includes all earnings of an employee, regardless of whether determined on time, task, piece, commission or other method of calculation. 43 P.S. § 260.2a. Based upon its factual finding that there was no agreement reached between the parties regarding stock ownership or partnership by Faden in 340 North Queen Corporation, the lower court could properly find that the payment of the agreed upon $2,000.00 was to be in the form of cash wages. The testimony of Faden supports the determination that the parties came to no meeting of the minds concerning her acquisition of an ownership interest in the restaurant. Since they had agreed upon Faden’s receipt of the equivalent of $2,000.00 monthly, barring some other form of payment, the finding that the compensation be in the form of cash wages is within the terms of the original employment contract. Since the claim in based upon a contractual obligation to pay wages, the WPCL is applicable.

The fact that negotiations were ongoing regarding Faden’s being paid in stock does not alter the contractual nature of the appellants’ obligation to Faden. Appellants cite the trial court’s conclusion that Faden was also entitled to payment under the doctrine of quantum meruit as an indication that it rejected the contract claim under the WPCL. This contention is belied, however, by the explicit conclusion of law that Faden was entitled to wages under the WPCL for services rendered. We accept the trial court’s explanation in its opinion that the award on the basis of quantum meruit was intended as an alternate theory of recovery. Faden was not awarded damages twice for the same injury. Damages under the WPCL were awarded for wages, liquidated damages and counsel fees. See, 43 P.S. §§ 260.9a, 260.10. Since the evidence in the record supports the finding of contractual liability, the first two issues are without merit.

The third issue challenges the finding of individual liability of John deVitry. Since we have determined that the WPCL applies to Faden’s claims, deVitry as the sole corporate officer is liable individually for the corporation’s failure to pay wages. By statutory definition, “employer” includes any agent or officer of a corporation. 43 P.S. § 260.2a; Amalgamated Cotton Garment and Allied Industries Fund v. Dion, 341 Pa.Super. 12, 491 A.2d 123 (1985). Therefore, no error was committed in holding deVitry individually liable under the WPCL.

The final issue is that the evidence was insufficient to support a finding that the parties agreed to the monetary value of Faden’s services. As is evident from the above discussion, Faden’s testimony adequately detailed the agreement between the parties so that the fact finder, if it believed the testimony, could determine that they agreed to $2,000.00 a month valuation. In their brief, appellants cite portions of the amended complaint which state an hourly wage. These allegations are not determinative, however since other allegations were that the parties agreed to payment of $2000.00 per month. It was up to the trier of fact whether to believe Faden’s testimony concerning the agreement between the parties.

Judgment affirmed.


author: BECK, Judge:

text:
    625 A.2d 1239
    Aracelis ROSADO, Appellant, v. CONSTITUTION STATE SERVICE COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1993.
    Filed June 1, 1993.

      Claire Newman, Philadelphia, for appellant.
    Mark T. Richter, Philadelphia, for appellee.
    Before BECK, POPOVICH and BROSKY, JJ.
   BECK, Judge:

In this appeal we decide that a Pennsylvania resident may not recover medical and uninsured motorist benefits from the Motor Vehicle Financial Responsibility Law Assigned Claims Plan for injuries that were sustained in an accident while she was an occupant in an automobile which was registered in New Jersey.

Appellant Aracelis Rosado was a passenger in a motor vehicle owned and operated by Aida Rivera, when it collided with an uninsured vehicle in Philadelphia. Both Rivera and appellant were Pennsylvania residents. However, Rivera’s vehicle was registered and insured in New Jersey.

Appellant applied for medical benefits and uninsured motorist benefits from the Assigned Claims Plan (“the Plan”). The Plan is an organization that administers statutory insurance benefits to eligible claimants pursuant to Subchapter E of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”) (75 Pa.C.S.A. §§ 1701 et seq.). The Plan assigned appellant’s application for benefits to appellee Constitution State Service Company (“CSSC”). CSSC denied appellant’s request, because the Rivera vehicle was not registered in Pennsylvania. Appellant then commenced this action for benefits.

Upon appellee’s motion, the trial court entered summary judgment in its favor. Appellant Rosado then instituted this appeal, and the trial judge was required to issue an opinion pursuant to Pa.R.App.P. 1925. In his opinion, the Honorable Albert W. Sheppard stated that his initial decision was “erroneously entered,” and that this court should reverse the entry of summary judgment in favor of appellee CSSC. Trial Ct. Opinion at 4. We hold that the trial court’s initial decision was correct, and we therefore affirm.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b). When ruling on a motion for summary judgment, the trial court must examine the record in the light most favorable to the non-moving party, resolving all doubts against the movant. Carns v. Yingling, 406 Pa.Super. 279, 594 A.2d 337 (1991).

Appellant, who did not own a motor vehicle and therefore did not have her own insurance coverage, sought to recover medical benefits and uninsured motorist benefits under the Plan. A person is eligible to recover benefits from the Assigned Claims Plan if the person:

(1) Is a resident of this Commonwealth.
(2) Is injured as the result of a motor vehicle accident occurring in this Commonwealth.
(3) Is not the owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles).
(4) Is not the operator or occupant of a motor vehicle owned by the Federal Government or any of its agencies, departments or authorities.
(5) Is not the operator or occupant of a motor vehicle owned by a self-insurer or by an individual or entity who or which is immune from liability for, or is not required to provide, benefits or uninsured and underinsured motorist coverage.
(6) Is otherwise not entitled to receive any first party benefits under section 1711 (relating to required benefits) or 1712 (relating to availability of benefits) applicable to the injury arising from the accident.
(7) Is not the operator or occupant of a recreational vehicle not intended for highway use, motorcycle, motor-driven cycle or motorized pedalcycle or other like type vehicle required to be registered under this title and involved in the accident.

75 P.C.S.A. § 1752.

In its motion for summary judgment, appellee argued that appellant was indeed an “occupant of a motor vehicle owned by ... an individual ... who ... is not required to provide benefits or uninsured and underinsured motorist coverage,” and was therefore not entitled to benefits under the Plan. 75 Pa.C.S.A. § 1752(a)(5). Appellee based its contention on the fact that Rivera’s vehicle was registered in New Jersey, not in Pennsylvania, and therefore was not required to be insured under Pennsylvania’s MVFRL. See 75 Pa.C.S.A. §§ 1305(d), 1786(a) (all vehicles registered in Pennsylvania must provide financial responsibility in accordance with the MVFRL).

Appellant does not dispute that the host vehicle was registered in New Jersey. Instead, she argues that she is entitled to benefits under the Plan because the host vehicle was uninsured, and she has no other source of benefits available to her. Appellant’s contention is based on the allegation, made for the first time in her Memorandum in support of Response to Motion for Summary Judgment, that Rivera’s New Jersey insurer denied coverage of the host vehicle, as it was improperly registered and insured in New Jersey while Rivera herself was a Pennsylvania resident.

We hold that appellant is not entitled to recover benefits from the Plan. Section 1752(a)(5) of the MVFRL mandates that a person is not eligible for Plan benefits if she was the occupant of a motor vehicle that is not required to provide Coverage under the MVFRL. Section 1711 of the MVFRL limits the requirement to provide first party benefits coverage to vehicles that are “registered and operated in this Commonwealth [of Pennsylvania].” 75 Pa.C.S.A. § 1711. Likewise, no motor vehicle liability insurance policy may be issued in Pennsylvania for a “motor vehicle registered or principally garaged in” Pennsylvania unless uninsured and underinsured motorist coverages are offered. 75 Pa.C.S.A. § 1731.

Applying § 1711, this court has held that the MVFRL does not require the insurers of motor vehicles that are registered outside Pennsylvania to provide MVFRL first party benefits in Pennsylvania accidents. Boone v. Stonewall Ins. Co., 382 Pa.Super. 104, 554 A.2d 968 (1989) (insurer of vehicle registered in Virginia need not provide medical benefits under Pennsylvania’s MVFRL). See also Jarrett v. Pennsylvania Nat. Mut. Cas. Ins. Co., 400 Pa.Super. 565, 584 A.2d 327 (1990) (insurer of North Carolina vehicle not required to provide MVFRL coverage); Pugh v. Government Employees Ins. Co., 380 Pa.Super. 606, 552 A.2d 708 (1989) (operation of Maryland vehicle in Pennsylvania insufficient to impose requirements of MVFRL on its insurer). Therefore, appellant does not meet prong (5) of the Plan’s eligibility requirements codified in § 1752(a). See also Johnson v. Pennsylvania Financial Responsibility Assigned Claims Plan, 12 Pa.D. & C. 4th 471 (1991).

Nor does appellant meet the eligibility requirement of § 1752(a)(6) (in order to be eligible for Plan benefits a claimant must not otherwise be entitled to receive any first party benefits applicable to the injury arising from the accident). Assuming arguendo that we could consider the unsubstantiated allegation that the host vehicle is “uninsured” due to Rivera’s misrepresentations about her place of residence, appellant Rosado still is entitled to recover benefits under the policy that allegedly secured the host vehicle.

The interpretation of Rivera’s insurance contract, issued in New Jersey by a New Jersey insurer to cover a New Jersey vehicle, would be governed by New Jersey law. See, e.g., McCabe v. Prudential Prop. & Cas. Ins. Co., 356 Pa.Super. 223, 514 A.2d 582 (1986); Caputo v. Allstate Ins. Co., 344 Pa.Super. 1, 495 A.2d 959 (1985); Nationwide Mut. Ins. Co. v. Walter, 290 Pa.Super. 129, 434 A.2d 164 (1981). Applicable New Jersey case law specifically allows recovery under a motor vehicle policy by an “innocent” passenger such as appellant. Fisher v. New Jersey Auto. Underwriting Ass., 224 N.J.Super. 552, 540 A.2d 1344 (1988) (plaintiff, a passenger, still could recover benefits under an insurance policy that was declared void ab initio as against the insureds due to the insureds’ misrepresentations about residence). Therefore, we reject appellant’s contention that she “has no other source available from which benefits would be payable.” Appellant’s Brief at 1. •

Appellant should have looked to the insurer of the host vehicle for insurance coverage under the circumstances of this case. She is not entitled to recover benefits from Pennsylvania’s Assigned Claims Plan.

Order of summary judgment affirmed.

      . In its Answer and New Matter to the Complaint, appellee CSSC alleged that "[a]t the time of the accident ... plaintiff occupied a motor vehicle which was registered in the State of New Jersey.” This factual averment was not challenged by Rosado, who never filed a Reply to New Matter, and it is therefore deemed admitted. Pa.R.Civ.P. 1029. See Fox v. Byrne, 363 Pa.Super. 70, 525 A.2d 428 (1987); Enoch v. Food Fair Stores, Inc., 232 Pa.Super. 1, 331 A.2d 912 (1974). Moreover, appellant Rosado admitted in her Response to Motion for Summary Judgment that the host vehicle was registered in New Jersey. The fact that Rivera’s vehicle was registered in New Jersey also was confirmed in appellant’s Application for Benefits, which was attached as an exhibit to CSSC’s Motion for Summary Judgment.

      . Appellant provided no affidavits or other documents to support this assertion, nor does the allegation appear in her complaint. The bald factual allegation, made by appellant’s attorney in a memorandum of law, never was properly pleaded, and therefore should not have been considered by the trial court in rendering its decision. See Pa.R.Civ.P. 1035(b).

      . We note that if a claimant fails to meet even one of the eligibility requirements set forth in § 1752(a), her claim must fail. We consider ' this additional basis for denial of benefits in response to appellant's argument that she has no other source of recovery available to her.


author: CAVANAUGH, Judge.

text:
    625 A.2d 1242
    COMMONWEALTH of Pennsylvania, Appellant, v. Oscar CAMACHO, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Hector CAMACHO, Appellee.
    Superior Court of Pennsylvania.
    Argued March 11, 1993.
    Filed June 1, 1993.

      Peter J. Gardner, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Andrew G. Gay, Philadelphia, for Oscar Camacho, appellee.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   CAVANAUGH, Judge.

This is an appeal from an order of the Court of Common Pleas of Philadelphia County which suppressed all the physical evidence seized by police at or near 2853 North Fourth Street in Philadelphia. The Commonwealth raises two issues on appeal: (1) the lower court erred in failing to find exigent circumstances for the police to search an automobile used for storing drugs at the 2800 block of North 4th Street and (2) the police lawfully entered 2853 North 4th Street. Our review indicates that the Commonwealth’s first argument has merit, as the lower court has failed to apply the import of recent cases interpreting the automobile exception to the warrant requirement. However, we can not rule for the Commonwealth on the second issue, as the lower court as finder of fact and determiner of credibility found the search of the house illegal. We affirm in part, reverse in part.

This is a consolidated Commonwealth appeal from an order of the Hon. Anne Lazarus granting the motion to suppress of appellees Hector Camacho and Oscar Camacho. Both appellees were arrested for possession of controlled substances, possession with intent to deliver controlled substances, and criminal conspiracy. As the suppression court made certain findings of fact and credibility determinations which have pertinence to our analysis, we will discuss the relevant testimony proffered at the suppression hearing.

At the suppression hearing, Officer Thomas Clarke of the East Police Task Force testified that he had set up surveillance of the 2800 block of North 4th Street, Philadelphia, PA at approximately 6:30 p.m., on September 18,1991. Apparently, Officer Clarke acted as the sole observer and was assisted by back-up units in the area. He testified that his observations were made from a nearby second floor, which he could not identify because of its confidential nature. His surveillance location, he testified, was no less than fifty and no more then seventy feet from the relevant action in this appeal.

During the course of his surveillance, Officer Clarke testified he saw several unidentified white and black males approach Hector Camacho, who was standing in the middle of the street in front of 2859 North 4th Street. Officer Clarke stated that each time a male would approach, Hector Camacho would walk over to a silver Toyota parked in front of 2859 or 2861 North 4th Street, reach into the passenger door, and retrieve an “object.” Hector Camacho would then exchange the object with male for something that looked like currency. On cross-examination, Officer Clarke conceded that he was not sure that money was actually transferred or that the “objects” were drugs. However, he did testify that given his many years of experience, he was virtually positive that Hector Camacho was selling drugs.

After several of these transactions, Officer Clarke testified that he notified his backup. Before his backup arrived, Hector Camacho walked to 2853 North 4th Street. As soon as he got there, a door opened and a Hispanic male, later identified as Oscar Camacho, came out and stood on the top step. Hector Camacho handed something to Oscar Camacho from his right hand pocket. He then proceeded to walk back towards the silver Toyota, where he began to pace back and forth.

The back up unit that arrived shortly thereafter consisted of Sergeant Brian Gessner and Officer James Henninger. Both officers arrested Hector Camacho, and then Sergeant Gessner proceeded to 2853 North 4th Street. Sergeant Gessner claimed that the front gate at that residence was open, as was the doors to the house. Oscar Camacho, he testified, was right inside the doorway, and he turned back into the house and fled at Gessner’s approach. Sergeant Gessner then stated he chased Oscar Camacho through the living room and kitchen into an adjoining shed at the back of the house. After capturing Oscar Camacho, Sergeant Gessner testified that he saw in plain view on the floor of the shed a clear, plastic bag of cocaine and two bundles of heroin. Thereafter, after a Spanish interpreter was sent for, the appellees’ mother, Luz Camacho, signed a written consent to search the house. During this search, the police seized extensive drug paraphernalia.

The appellees presented testimony that the arrest of Oscar Camacho did not occur in the shed as the police claimed. Oscar Camacho claimed to be sleeping in the third floor room of his mother’s house when a police officer entered the room. According to this defendant, the officer took him into the living room, pushed him against the wall and held him there. Luz Camacho also gave testimony that could be construed to contradict the police version. She testified that she was sleeping on the sofa of her living room. She awakened to find someone struggling with her son. She jumped to her son’s aid, but after fully waking, determined that it was the police.

After the conclusion of the parties’ presentation at the suppression hearing, the lower court made several determinations. First, the court rendered the specific finding that “there was probable cause to arrest Hector Camacho based upon the articulable facts that the police officer had in his possession at that time.” The court, however, ruled that the evidence found in the Toyota must be suppressed because:

there were no exigent circumstances present that would justify the search of a closed car and the search warrant would easily have been obtainable and the police could have safe-guarded that car and, therefore, the evidence obtained from the car was not incident to the arrest of Hector. It was not in his control or within ten feet of Mr. Camacho and, therefore, the evidence taken from the car, is in fact suppressed.

The court went on to suppress the drugs allegedly found in the shed after the arrest of Oscar Camacho, commenting that there may not have been probable cause to arrest him. However, it did not suppress other evidence of drug-related activity found in the house because the court was convinced that the Camachos’ mother voluntarily gave her consent to search the house.

The suppression court made the following findings of fact in its October 19, 1992 opinion:

1. The majority of Officer Clarke’s testimony was incredible;
2. Officer Clarke summoned back-up officers who arrested the defendant;
3. None of the participants in the alleged exchanges with Hector Camacho have been identified;
4. Police searched a silver Toyota which was parked on the street and a shed on the Camacho property;
5. Search warrants were not requested for either of the searches;
6. Hector Camacho was detained by the police prior to the search of the Toyota;
7. Oscar Camacho was arrested inside his mother’s living room;
8. Police testimony describing the apprehension of Oscar Camacho was not credible.
9. Officers obtained a consent to search the house from Mrs. Camacho after the arrest of her sons;
10. Sergeant Gessner retrieved drugs from the shed behind the Camacho residence prior to obtaining Mrs. Camacho’s consent to search the house.

After making these findings, the court made the following conclusions of law. First, in reference to the search of the Toyota, the court stated the search did not fall into any exception to the warrant requirement and was thus illegal. Second, in reference to the search of the house and shed, the court asserted that since it found that police testimony as to the apprehension of Oscar Camacho was unreliable, the evidence seized in the house and shed must be suppressed. In direct contrast to its ruling at the suppression hearing, the court suppressed evidence found pursuant to Mrs. Camacho’s consent to search her house. Accordingly, pursuant to its rulings, it suppressed all the evidence attained on September 18, 1991. This appeal followed.

We begin with our standard of review:

The well established judicial principle is that in reviewing a suppression court’s ruling the appellate court is bound by factual findings supported by the record. [A]nd, [it] may not substitute [its] own findings for those of the suppression court. This principle of deference to trial courts has one important caveat however, appellate courts are not bound by findings wholly lacking in evidence.
# * s}; # # ?{:
[WJhere the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant’s witnesses and so much of the evidence of the prosecution as read in context of the record as a whole remains uncontradicted.

Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137, 138-139 (1983), as quoted in Commonwealth v. Lagamba, 418 Pa.Super. 1, 3, 613 A.2d 1, 2 (1992).

Preliminarily, we note that the court made credibility determinations in the case sub judice. We have held in circumstances other than a suppression hearing as follows:

A reviewing court is bound by the lower court’s determination of issues of credibility, unless said determination is a manifest error. Leibowitz v. Ortho Pharmaceutical Corp., 224 Pa.Super. 418, 307 A.2d 449 (1973). Issues of credibility are resolved through personal observation; therefore, absent clear and manifest error, a lower court’s assessment of witnesses’ integrity is not properly reversible on appeal. Shawcreaw v. Shawcreaw, 248 Pa.Super. 223, 375 A.2d 68 (1977); Re Estate of Duncan, 426 Pa. 283, 232 A.2d 717 (1967).

Commonwealth v. Smith, 322 Pa.Super. 504, 511, 469 A.2d 1104, 1109 (1983); accord Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973). We have not found a case which articulates a different standard than the one supra for evaluating a credibility determination made by a suppression court. As we believe that credibility at a suppression hearing is an important determination best resolved through the court’s personal observations, we will not reverse a suppression court’s assessment of credibility absent clear and manifest error.

The Commonwealth makes two arguments before this court: (1) the lower court erred in suppressing drugs seized pursuant to a search of an automobile where the police had probable cause to suspect the vehicle contained contraband and (2) the lower court erred in suppressing drugs seized from the appellants’ residence where the police lawfully entered the house to effect an arrest and then saw the drugs in plain view. We address the Commonwealth’s later argument first, as it presents less difficulty given our standard of review and deference to the suppression court’s role as fact finder and evaluator of credibility.

The Commonwealth’s second argument asserts that the lower court erred in suppressing the drugs seized in the house. The Commonwealth claims that probable cause existed to arrest Oscar Camacho because the police witnessed him receiving proceeds from drug sales. Although the Commonwealth admits that the police entered the residence at 2835 4th Fourth Street without a search warrant and arrested Oscar Camacho inside, it contends that the entry was justified by the “hot pursuit” exception to the warrant requirement. The Commonwealth avers that Oscar Camacho was allegedly pursued from his doorway through his living room and kitchen, and into a shed in the back of the residence, where he was captured. While in the shed, the police allegedly saw drugs in “plain view” in the adjoining shed. Thus, the Commonwealth concludes, a warrant was unnecessary.

We find it unnecessary to address the Commonwealth’s strained explanation of how this seizure of evidence was fully justified. The Commonwealth has the burden of establishing at a suppression hearing that the challenged evidence was not obtained in violation of a defendant’s Constitutional rights. Pa.R.Crim.P. 323(h); Commonwealth v. Bonasorte, 337 Pa.Super. 332, 344, 486 A.2d 1361, 1368 (1984). The suppression court specifically determined that “[pjolice testimony describing the apprehension of Oscar Camacho was not credible.” Given this determination, and its finding that Sergeant Gessner retrieved drugs from the shed behind the Camacho residence prior to obtaining Mrs. Camacho’s consent to search the house, there is no grounds for reversal as to the evidence suppressed in the house and the shed.

The Commonwealth attempts to avoid the natural meaning of the court’s credibility determination as to Oscar Camacho’s apprehension by claiming that the court’s determination was limited to the actual arrest made inside the house. The Commonwealth claims that the Court made no ruling as to whether a warrantless entry was justified, and thus implicitly accepted Sergeant Gessner’s entry was lawfully made pursuant to the “hot pursuit” exception to the warrant requirement.

We find no support for this view in the suppression court’s opinion or in the Record. The Commonwealth contorts that natural meaning of the word “apprehension,” attempting to limit its meaning to a certain aspect of Oscar Camacho’s capture, the alleged pursuit within the house into the shed. We feel the more natural reading of this word, particularly in light of the suppression court’s other findings, is that the court disbelieved the sum of police testimony regarding Oscar Camacho’s capture. Thus, the court did not find credible the police testimony regarding the alleged circumstance of a “hot pursuit.” As the Commonwealth has not provided the quantum of evidence necessary to reject the court’s credibility determination, we affirm the court’s suppression of evidence found subsequent to the entry of the house.

We address now appellant’s first argument pertaining to the Constitutionality of the Toyota’s search. The Commonwealth asserts that the lower court was mistaken in its belief that a warrant was required for the police to search the Toyota, and thus erred in suppressing the fruit of the automobile’s search. The Commonwealth asserts that given the lower court’s finding of probable cause to arrest Hector Camacho, the search would seem justified in the circumstances sub judice. The Commonwealth notes that the police did not develop probable cause until immediately before the opportunity for the search arose. Because an automobile has inherent mobility, the exigent circumstance that someone could abscond with potential evidence by driving the Toyota away justifies the police in searching the automobile without a warrant. The Commonwealth relies on for support, inter alia, Commonwealth v. Baker, 518 Pa. 145, 541 A.2d 1381 (1988) and Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985).

We find the tenor of the Commonwealth’s argument persuasive. The Pennsylvania Supreme Court has recently reiterated:

While searches and seizures conducted outside the judicial process, without prior approval by a magistrate, are generally unreasonable under the Fourth Amendment, there is an established departure from the warrant requirement for certain automobile searches based on the inherent mobility of vehicles, with the consequent practical problems in obtaining a warrant prior to infringing a legitimate expectation of privacy, and on the diminished expectation of privacy which is accorded automobiles because of their function, and their subjection to a myriad of state regulations.

Commonwealth v. Rodriguez, 526 Pa. 268, 272, 585 A.2d 988, 990 (1991), quoting Commonwealth v. Milyak, 508 Pa. 2, 7-8, 493 A.2d 1346, 1349 (1985). Our Supreme Court has declared that vehicle searches conducted without warrants are proper where probable cause is present and certain exigencies exist that making attainment of a warrant impracticable. Commonwealth v. Baker, 518 Pa. 145, 148, 541 A.2d 1381, 1383 (1988); Commonwealth v. Holzer, 480 Pa. 93, 103, 389 A.2d 101, 106 (1978).

In Baker, supra, our Commonwealth’s Supreme Court found that a search of a vehicle is justified where there exists probable cause to search it and there is inadequate opportunity to obtain a warrant. The pertinent facts in that case were as follows. An informant told the police that he saw an individual in an alley waving a handgun. The informant gave the police the appellant’s full name and told them the appellant was wearing a camouflaged hat and was driving an old, beat-up convertible with the top down. Soon thereafter, the police located the individual in his car, and although they lost him for a brief period, they soon found him in a nearby parking lot sitting on steps nearby his automobile. When they approached the appellant, he proceeded to jump in his vehicle and began to back out of his parking spot. The police stopped the individual, who proceeded to become quite irate, alite out of his car, and walk around the police verbally abusing them. While appellant was twenty feet from his vehicle and a companion was five feet away, the police succeeded in calming him down and searching, without consent or a warrant, the passenger compartment. The police found the pistol, and the individual was then arrested. Other weapons were found in the car after arrest.

On appeal of an order suppressing evidence related to the search, our Supreme Court found that exigent circumstances were present to excuse the need for obtaining a warrant. Id., 518 Pa. at 149, 541 A.2d at 1383. The police, having obtained information that a crime occurred from a reliable informant, located the suspect within minutes and in the court’s view, clearly had probable cause to believe the suspect had possession of a gun. Id. The Court then declared as follows:

This is not a case where the police knew hours in advance that a particular vehicle carrying evidence of a crime would be parked in a particular locale, such that it would have been reasonably practicable to obtain a search warrant before encountering the vehicle to be searched. Rather, the instant search was conducted when police stopped a moving vehicle just thirty minutes after a reported crime. Inasmuch as the requirement of probable cause was satisfied, the exigencies of the mobility of the vehicle and of there having been inadequate time to obtain a warrant rendered the search proper.

Id. (citations omitted). Our Supreme Court went on to specifically reject the argument that the police had to immobilize the vehicle until a warrant could be obtained. Id. It declared that it was not clear that immobilization is any less intrusive to privacy interests than searching the vehicle. It concluded that its prior rulings afford the conclusion “immobilization has been held to be an alternative, not a requirement.” Id, citing Milyak, supra, 508 Pa. at 11, 493 A.2d at 1351. It went on to aver:

In short, this case presents a typical scenario where exigent circumstances made it not reasonably practicable to obtain a warrant prior to stopping a vehicle that contained evidence of a crime. Since probable cause to search the vehicle was present, a search warrant was not required, and, thus, the Superior Court properly held the revolver seized during the search to be admissible as evidence.

Id., 518 Pa. at 149-50, 541 A.2d at 1383-84.

The facts of the search sub judice are clearly analogous to those in Baker, supra, and are encompassed in the principles of law set forth therein. The lower court, recognizing that the police had more than adequate grounds for an arrest and search, found probable cause at the suppression hearing to arrest Hector Camacho. The issue for the court was whether the requirement of a warrant was excused by exigent circumstances or some other exception to the warrant requirement. Baker militates in the present case that exigent circumstances be found.

The police, responding to a report of a recent crime, stopped the suspect in Baker. The suspect immediately left his car and was twenty feet away from it when the police conducted their search. The police could have before initiating a search, but did not, attain a warrant to search the car. Instead, they immediately searched the car, and upon finding a weapon, arrested the suspect.

Presently, a police officer witnessed ongoing drug transactions which used a nearby automobile to secrete the drugs. When Hector Camacho was arrested, he was nearby the vehicle but not in it. The tenor of the lower court’s ruling and opinion is that while the police had the authority to arrest Hector Camacho, and they had probable cause to search the Toyota, they had to obtain a warrant before searching it. We do not think the police in the case sub judice are required to immobilize the car or otherwise watch over it while a warrant is obtained. To do so would reject the underpinnings of Baker. Like in Baker, the police responded to a developing situation that required their immediate attention. The police had probable cause to search the vehicle. The mobility of the car made the attainment of a warrant impracticable, as a potential cohort of the defendant could have driven away with the evidence. To rule against the police we would have to instruct that the vehicle should have been immobilized or watched while a warrant was attained. Baker specifically rejected the necessity of this alternative.

A recent case from the Superior Court, although not containing the wisdom of Baker, contains facts even more directly analogous to the case sub judice. In Commonwealth v. Jen\kins, 401 Pa.Super. 580, 585 A.2d 1078, (1991), a panel of this Court ruled that a warrant was not needed to search the trunk of a vehicle where the police had probable cause to believe that a suspect was engaging in a crime from his parked vehicle. Similar to this case, the police witnessed a suspect engage in several transactions while using his car as the storage facilities for the drugs. Id. at 589-590, 585 A.2d at 1083-84. See also Commonwealth v. Elliot, 416 Pa.Super. 499, 502-04, 611 A.2d 727, 729 (1992). We note that subsequent to Baker, in Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991), our Supreme Court reaffirmed the principles that once the requirement of probable cause is satisfied, the exigencies regarding the inherent mobility of the vehicle and inadequate time to obtain a search warrant can render a warrantless search of a vehicle proper. Accordingly, precedent requires us to reverse the court’s suppression ruling as to the evidence found in the Toyota.

For the foregoing reasons, we affirm the lower court’s suppression rulings as to evidence found in the house and the shed, and reverse its ruling as to the evidence found in the Toyota.

Order affirmed in part, and reversed in part. Case remanded for proceedings consistent with this opinion.

Jurisdiction relinquished.

      . The lower court found in its opinion that the majority of Officer Clarke’s testimony was incredible. However, this finding apparently had no effect on its prior determination at the suppression hearing that probable cause existed to arrest Hector Camacho. The tenor of the lower court opinion accepts the existence of probable cause to arrest Hector Camacho, yet goes on to find that no exception to the warrant requirement existed such that the police could Constitutionally search the Toyota.
      The court may wish us to read its belated critique of Officer Clarke’s credibility as a rejection of its ruling that probable cause existed to arrest Hector Camacho. We are reluctant to do so without an explicit rejection of its conclusion of law at the suppression hearing that probable cause existed. Pa.R.Crim.P. 323(i) requires a suppression court to place on the Record findings of facts and conclusions of law as to whether evidence was obtained in violation of a defendant’s rights. The court placed on the Record at the suppression hearing its conclusion of law that probable cause existed, yet neither in its opinion nor Order revoked this ruling.

      . We note the discrepancy between some of the Commonwealth's past cases and federal cases which speak to automobile searches under similar circumstances as sub judice. United States Supreme Court decisions clearly indicates that there exists an “automobile exception’’ to the warrant requirement. See, e.g., California v. Acevedo, 500 U.S. -,-, 111 S.Ct. 1982, 1985, 114 L.Ed.2d 619, 627 (1991); California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d. 406 (1985). This requirement under federal law has developed close to a per se rule that whenever the police stop a suspect with probable cause to believe his automobile contains evidence of crime, they may legally search the vehicle without a warrant. Acevedo, supra; Carney, supra. However, certain past cases in our jurisdiction have declared "that there is no 'automobile exception’ as such” under both the United States Constitution and our Commonwealth’s Constitution. See, e.g., Commonwealth v. Holzer, 480 Pa. 93, 103, 389 A.2d 101, 105 (1978). These cases seem to reach the same result as the federal cases but do so under the rubric “exigent circumstances.” See Baker, supra; Holzer, supra. We note that the recent majority decision in Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991) may be read to sub silento recognize the existence of the automobile exception. Compare Commonwealth v. Rodriguez, supra, at 279, 585 A.2d at 993 (Flaherty, J., Dissenting), which cites Holzer, supra, for the proposition that no automobile exception to the warrant requirement exists.
      We note that the United States Supreme Court's adherence to the automobile exception to the warrant requirement is illustrated best by Carney, supra. In that case, the Court ruled that the Fourth Amendment did not require the police to attain a warrant for searching a motor home located in a non-residential area, notwithstanding the arguably heightened expectation of privacy in a vehicle that could be used as a residence. 471 U.S. at 391, 105 S.Ct. at 2069, 85 L.Ed.2d at 413. The Court based its ruling on two rationales. This Court found that the ready mobility of an automobile justifies a lesser degree of protection of privacy interests. 471 U.S. at 390-91, 105 S.Ct. at 2068-69, 85 L.Ed.2d at 412-13. The Court was particularly concerned that the turn of an ignition key could make the car readily mobile. 471 U.S. at 393, 105 S.Ct. at 2070, 85 L.Ed.2d at 414. It also felt that a person’s legitimate expectations of privacy in a motor vehicle are significantly less than that relating to a house or office, due to the pervasive regulation of vehicles capable of driving on the highways. 471 U.S. at 391-93, 105 S.Ct. at 2069-70, 85 L.Ed.2d at 413-14. Given these rationales and their application to a motor home in Carney, it is apparent that under federal law the automobile exception is well-established. Pennsylvania cases which claim that federal law does not recognize an "automobile exception,” see, e.g., Holzer, are simply dated and not in keeping with the tenor of current law.

      . As opposed to Baker, supra, where probable cause was derived from a tip from a reliable informant, probable cause was attained by a police officer actually witnessing illegal conduct, e.g. drug sales. Officer Clarke testified that he saw Hector Camacho approached several times by individuals in the middle of a street in a high crime area. Hector Camacho would go each time to the passenger compartment of a nearby car and take out objects which he would exchange for cash.

      . While it might be argued that a fact significant to Baker's disposition was the suspect’s recent exit from his vehicle, we note that Hector Camacho on several occasions entered at least partially into the passenger side to reach for illicit drugs to sell. Moreover, whether a suspect has recently been in a vehicle or not appears to have little to do with the Court’s reasoning in Baker, which was concerned with the mobility of the vehicle and the inadequate opportunity to attain a warrant due to a developing situation that called for police attention.

      . Although we arrive at our decision on other grounds, we comment that a vehicle used as a staging area for open and notorious drug transactions may have a lesser degree of privacy than would normally be afforded it.


author: POPOVICH, Judge:

text:
    625 A.2d 1249
    COMMONWEALTH of Pennsylvania, Appellant, v. Donald R. FRALIC, Appellee.
    Superior Court of Pennsylvania.
    Argued March 10, 1993.
    Filed May 28, 1993.

      Brian P. Gottlieb, Deputy Atty. Gen., Harrisburg, for Com., appellant.
    Victor H. Pribanic, McKeesport, for appellee.
    Before CIRILLO, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Dauphin County which, inter alia, granted appellee’s motion challenging validity of plea of nolo contendere and motion for leave to permit nunc pro tunc filing, permitted appellee to withdraw his plea and vacated appellee’s judgment of sentence. Herein, the Commonwealth contends that the lower court did not have jurisdiction to allow the nunc pro tunc filing of the motion to withdraw the nolo contendere plea, to permit the plea to be withdrawn and to vacate appellee’s sentence when more than thirty (30) days from the date of sentencing had elapsed. Further, the Commonwealth contends that, assuming the court had jurisdiction to entertain the motion, the lower court erred in granting the motion without first conducting a factual hearing to adjudicate the contested averments. We agree with the Commonwealth. Accordingly, we reverse the decision of the court below and remand for further proceedings in accordance with the provisions of this opinion.

The record reveals the following relevant factual and procedural history: Appellee was arrested and charged with fifteen (15) counts of theft by failure to make required disposition of funds received, 18 Pa.C.S.A. § 3927, and seven counts of filing false and fraudulent tax returns, 72 Pa.C.S.A. § 7268(a). The charges stemmed from appellee’s failure to remit sales tax payments which he collected. Appellee entered into a plea agreement with the Commonwealth whereby he would enter a plea of nolo contendere to the charges and would make full restitution to the Commonwealth in the amount of $314,689.55. In exchange, the Commonwealth would not offer a sentencing recommendation and would stand mute as to the sentence imposed by the trial court. In addition, the written plea agreement provided that if appellee was dissatisfied for any reason with the sentence imposed, he would not be permitted to withdraw his plea.

On March 25, 1992, a hearing was held at which appellee entered his plea of nolo contendere. Appellee had completed an extensive written plea colloquy which he had reviewed with his attorney, Mr. Sanford Kelson, Esquire. During the hearing, the Commonwealth recited the facts which served as to basis of the criminal charges, and appellee acknowledged that those were the facts to which he was entering his plea. Attorney Kelson then explained to the court that he had discussed the case with appellee, and that, in his opinion, the facts could lead to a possible “not guilty” verdict. However, Attorney Kelson represented that appellee “wanted to do the right thing and plead guilty anyway.” N.T., 3/25/92, pp. 7-8. Prior to the hearing, appellee had fully reimbursed the Commonwealth in the amount of $314,689.55.

Appellee then waived the pre-sentence report, and the court proceeded to sentencing. Attorney Kelson then extensively outlined appellee’s personal history and highlighted numerous mitigating factors. Appellee also expressed remorse for his actions. The court then sentenced appellee to pay the costs of prosecution, to pay a.fine of $10,000, and to undergo incarceration in county jail for a period of five (5) to twenty-three (23) months. Appellee was ordered to report to jail on April 16, 1992. The Commonwealth then explained to appellee that he had ten (10) days within which to file a motion for reconsideration of sentence and thirty (30) days within which to perfect an appeal on those limited grounds set forth in his plea agreement. N.T., 3/25/92, p. 17. Attorney Kelson also stated that he would explain those rights to appellee.

On April 6, 1992, within ten days of sentencing, appellee filed a motion for reconsideration of sentence, requesting a sentence of probation plus community service. However, the lower court denied the motion for reconsideration the following day. Shortly thereafter, appellee retained new counsel, Victor Pribanic, Esquire. On April 13, 1992, more than ten days after sentencing, Attorney Pribanic filed a “Motion Challenging the Validity of Plea of Nolo Contendere and Motion for Leave to Permit Nunc Pro Tunc Filing”, a “Petition for Relief Pursuant to the Post Conviction Relief Act and Order of Court” and a “Motion for Bail Pending Disposition of Defendant’s Motion Challenging Validity of Plea of Nolo Contendere.” The Commonwealth answered the motions and the PCRA petition. A hearing solely on the bail motion was held on April 17, 1992, and, at the end of the hearing, the lower court granted appellee’s bail request only.

Eventually, by order dated August 14, 1992, the trial court granted the motion for leave to permit nunc pro tunc filing to his motion challenging the validity of his plea. The court declared the plea “withdrawn” and vacated the sentence imposed. The court directed the case be listed for trial and continued bail. The lower court also declared the PCRA petition moot. This appeal by the Commonwealth followed.

In its Pa.R.App.R. 1925 opinion, the lower court contends it exercised “its inherent power to correct an illegal sentence or obvious and patent mistakes in its orders at any time.” The court determined that appellee’s nolo contendere plea was unlawful, and it felt it had jurisdiction to correct a manifest miscarriage of justice. In the alternative, if we determine the court was without jurisdiction to permit appellee to withdraw his plea, the lower court urges us to consider its action to be one of granting appellee’s PCRA petition on the grounds that appellee’s plea was unlawfully induced.

As a general rule, a trial court may not modify a final order once beyond the thirty-day statutory time limit set forth in 42 Pa.C.S.A. § 5505. Commonwealth v. Butler, 389 Pa.Super. 209, 210-13, 566 A.2d 1209, 1210-1211 (1989); Commonwealth v. Sheppard, 372 Pa.Super. 550, 539 A.2d 1333 (1988); Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987) (en banc); see also, Pa.R.Crim.P. 1410, comment. Instantly, the lower court was without jurisdiction to act on appellee’s motions once the thirty-day statutory time limit had expired on April 24, 1992. Therefore, we find that the lower court had no authority to permit appellee’s to withdraw his plea and to vacate his judgment of sentence on August 14, 1992. The court’s failure to act on the motions within the thirty-day period had the same legal effect as a denial of the motion. See Pa.R.Crim.P. 1410, comment; Pa.R.App.P. 1701.

The fact that the lower court granted appellee’s motion for bail pending resolution of his other motions does not affect our decision. In order to stay the running of the thirty-day period, the lower court needed to vacate appellee’s judgment of sentence pending the resolution of the motions on their merits. Pa.R.Crim.P. 1410. The court also could have tolled the expiration of the thirty day period by granting appellee’s motion for leave to file nunc pro tunc his motion to withdraw his plea. Then appellee’s motion challenging the validity of his plea would have been “timely” filed pursuant to Pa. R.Crim.P. 321, and Pa.R.App.P. 343 would then require resolution of that motion prior to appeal. Pa.R.App.P. 343 provides that a timely motion challenging a plea shall act as an order expressly granting reconsideration of the judgment. The granting of bail simply did not toll the running of the thirty-day period. See, Butler, 566 A.2d at 1211 (“If the trial court desires additional time to reexamine its ruling, it must expressly grant reconsideration (Pa.R.A.P. 1701) or vacate its order within thirty-days.”).

As for the lower court’s alternate suggestion that we consider his order as one granting post-conviction relief, we reject it. “A motion for post-conviction collateral relief may be granted without a hearing when the motion and answer show that there is no genuine issue concerning material fact and that the defendant is entitled to relief as a matter of law.” Pa.R.Crim.P. 1507(b). Instantly, the lower court held no hearings relative to the motion challenging the validity of appellee’s plea, the motion for leave to file nunc pro tunc or the PCRA petition. A review of the record reveals numerous factual disputes regarding appellee’s plea. Accordingly, we decline to consider the lower court’s actions as a grant of appellee’s PCRA petition. Cf., Commonwealth v. Edwards, 417 Pa.Super. 555, 559, 612 A.2d 1077, 1079 (1992) (bald assertion of counsel’s ineffectiveness must fail without supporting evidence and argument or P.C.R.A. hearing).

In conclusion, we reverse the lower court’s order of August 14, 1992, and we reinstate appellee’s judgment of sentence.

Order reversed. Judgment of sentence reinstated, jurisdiction relinquished.

      . We note that appellee’s PCRA petition was premature as it was filed before appellee had exhausted his direct appeal rights. As the Comment to Pa.R.Crim.P. 1501 clearly states, “Chapter 1500 Rules are intended to require that, in a single proceeding, the defendant shall raise and the court shall dispose of all grounds for relief available after conviction, post-trial or post-sentence motions, and exhaustion of the appellate process, either by affirmance or by failure to take a timely appeal.” See, Commonwealth v. O'Neil, 393 Pa.Super. 111, 573 A.2d 1112 (1990). Our refusal to consider appellee’s PCRA petition does not preclude his refiling of the petition at an appropriate time. O'Neil, 573 A.2d at 1116 n. 7.