text:
    501 A.2d 1123
    In the Matter of the ADOPTION OF Codyus Apollo ELLINGSEN, York Co. Children & Youth Services. Appeal of Joebina ELLINGSEN.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1985.
    Filed Nov. 29, 1985.

      Gary D. Martz, York, for appellant.
    Joseph R. Adamczyk, Jr., Harrisburg, for appellee.
    Before WICKERSHAM, CIRILLO, and JOHNSON, JJ.
   CIRILLO, Judge:

Appellant challenges the order entered by the Court of Common Pleas of York County, Pennsylvania, which involuntarily terminated her parental rights for her son, Codyus. Our scope of review is limited to determining whether the decree of termination is supported by competent evidence. In Re Baby Boy P., 333 Pa.Super. 462, 482 A.2d 660 (1984). Appellant, Joebina Ellingsen, contends there was insufficient competent evidence to support the trial court’s finding that appellee sustained its evidentiary burden of clear and convincing in its order that Ellingsen’s parental rights be terminated. We agree and therefore reverse.

Appellant raises two issues on appeal: 1) whether there was sufficient, competent evidence to support the trial court’s finding that York County Children and Youth Services (hereinafter YCCS) had met its burden of proving appellee was guilty of repeated and continued incapacity or neglect towards her child; and 2) whether there was sufficient, competent evidence to support the trial court’s finding that YCCS sustained its burden of proving that the conditions which led to the removal of Codyus continued to exist and appellant could not or would not remedy those conditions within a reasonable period of time. The trial court answered both of these questions in the affirmative.

Codyus was born on September 17, 1982, four months prematurely. As a result, the child suffers from retarded physical development and is a respiratory cripple requiring constant medical care. Codyus was a patient in the hospital from birth until December, 1983. In June, 1983, appellant executed a written agreement stating because of her emotional problems and the intensive medical care required by the child, appellant was unable to care for Codyus and custody should be awarded to the agency for foster care. On December 15, 1983, Codyus was released from the hospital and placed in the care of foster parents. Appellant is not permitted to visit the child. The child continues to need close and intensive care, careful monitoring of breathing and equipment for that purpose. Codyus’ hospital physician testified the condition will last several years.

Appellant testified she was working full-time in York while Codyus was hospitalized in Harrisburg. Ellingsen conceded her visits were infrequent but she went to the hospital to see Codyus as she was able. On those occasions when she was unable to visit the hospital, appellant telephoned to check on Codyus’ condition. She stated her visits ceased from July to November, 1983 because of her bad nerves, use of prescribed medication, trouble in her living situation and harassment by others. Ellingsen relinquished custody of Codyus to YCCS but she correctly argued that a parent may fulfill her parental duties toward her child by making suitable arrangements for the child’s temporary care during the parent’s period of crisis. In Re D.K.W., 490 Pa. 134, 415 A.2d 69 (1980); Petition of Lutheran Children and Family Services of Eastern Pennsylvania, 456 Pa. 429, 321 A.2d 618 (1974); In Re Adoption of Sabrina, 325 Pa.Super. 17, 472 A.2d 624 (1984). Ellingsen now contends her living and emotional conditions are greatly improved, she is willing and able to learn to care for Codyus properly and she desires to do so.

YCCS grounded its petition to terminate appellant’s parental rights on § 2511(a)(2) and 2511(a)(5) of the Adoption Act of 1980. Section 2511(a)(2) provides that:

The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

23 Pa.C.S. § 2511(a)(2). While Section 2511(a)(5) is similar to § 2511(a)(2), the former provides that:

The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions of which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S. § 2511(a)(5).

This Court has established three requirements which must be satisfied before a natural parent’s rights in a child will be terminated under these sections: 1) repeated and continued incapacity, abuse, neglect or refusal; 2) that such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and 3) that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975). Accord In re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984); Bartasavich v. Mitchell, 324 Pa.Super. 270, 471 A.2d 833 (1984). YCCS was required to show by clear and convincing evidence the presence of these factors to justify the complete severance of appellant’s parental ties with Codyus. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In Re Adoption of James J., 332 Pa.Super. 486, 481 A.2d 892 (1984).

On appeal, we are limited to determining whether the trial court’s finding that YCCS sustained this burden is supported by competent evidence. Matter of Adoption of Baby Boy Allen, 337 Pa.Super. 133, 486 A.2d 517 (1984). We hold the appellee, YCCS, failed to carry its evidentiary burden. The testimony of the witnesses was not so “clear, direct, weighty and convincing ... [that] it carrped] a clear conviction to the mind ... or carrped] a clear conviction of its truth." In re Baby Boy P., 333 Pa.Super. 462, 465, 482 A.2d 660, 661 (1984) (quoting La Rocca Trust, 411 Pa. 633, 192 A.2d 409 (1963)).

In the case sub judice, YCCS’ allegation of appellant’s repeated and continued incapacity in demanding termination of Ellingsen’s parental rights pursuant to §§ 2511(a)(2) and 2511(a)(5) is not supported by the record. Appellant contends, and we agree, the conditions which led Ellingsen to place Codyus in the custody of YCCS are, for the most part, no longer present. Appellant testified at trial, and such testimony was confirmed by Mr. Kravitz, her counselor, that she is no longer on valium, her emotional condition is greatly improved, she is living in new quarters and she is no longer harrassed by others. The fact that YCCS returned appellant’s daughter Cinnamon to Ellingsen substantiates appellant’s claim.

Appellee contends Codyus’ needs are radically different from those of Cinnamon. While we agree with this statement, it cannot on its own justify termination of appellant’s parental rights. YCCS concentrates on past deficiencies to demonstrate appellant’s inability to meet Codyus’ medical needs. However, our concern, as in custody cases, is with present and future conduct. See In Re Adoption of Michael J.C., 326 Pa.Super. 143, 473 A.2d 1021 (1984); Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, 444 A.2d 1299 (1982). Based on Ellingsen’s present circumstances, we find that appellant has made sufficient improvement to prevent the termination of her parental rights in Codyus. Appellant has taken affirmative action to prepare herself for the eventual return of Codyus to her custody. During the months prior to the commencement of this action, and subsequent to it, Ellingsen underwent therapeutic treatment for her emotional problems, was trained in Child and Infant Life Support Systems (infant CPR), cared for her other child, and maintained a new residence without incident. Appellant clearly never demonstrated a settled purpose of relinquishing parental claims to Codyus. In Re Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981). Ellingsen exercised reasonable firmness in not yielding to the obstacles confronting her. In Re Adoption of Sabrina, supra.

YCCS failed to show that appellant cannot or will not remedy the causes of her incapacity. Granted, Ellingsen’s visits to Codyus were not as frequent as the agency desired and her participation in the training was not exemplary. However, there remains “a reasonable possibility that [this incapacity] which [led] to the separation can be remedied and the family restored.” In re William L., 477 Pa. 322, 383 A.2d 1228 (1978). Accord In Re Adoption of Sabrina, supra.

Codyus’ short term medical needs may be satisfied by the average lay person with proper training. Appellant must be allowed a reasonable opportunity to effectively use the services provided by YCCS. The fact that Ellingsen failed to take full advantage of these services while she was recovering from the death of the two other infants (Codyus was the only surviving triplet) and taking prescribed valium cannot support the termination of her parental rights. El-lingsen’s utilization of the services provided by YCCS “must be measured in light of what would be expected of an individual in circumstances which [Ellingsen] finds [herself].” In Re Adoption of B.D.S., 494 Pa. 171, 179, 431 A.2d 203, 207 (1981) (quoting In Re Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978)). Accord Matter of Adoption of Hutchins, 326 Pa.Super. 276, 473 A.2d 1089 (1984). Considering the conditions under which Ellingsen was living, we find she has amply explained her non-performance for the five and one-half months preceding the commencement of this action.

We do not mean to place ourselves above those experts who testified within the realm of their expertise, and we do not doubt Ms. Ellingsen could have demonstrated greater persistence in learning how to care for Codyus; however, the psychotherapist’s and the physician’s opinion appear to be based on the child’s best interest which is not sufficient by itself. See Matter of Adoption of Ferrante, 334 Pa.Super. 53, 482 A.2d 1076 (1984); Matter of M.L.W., 307 Pa.Super. 29, 452 A.2d 1021 (1982). The best interests of the child may only be considered after the court has determined that the parent cannot, or will not, be able to care for the child. Matter of Adoption of Bauman, 325 Pa.Super. 145, 472 A.2d 689 (1984); In Re Anderson, 317 Pa.Super. 490, 464 A.2d 428 (1983). We cannot make such a determination in the case sub judice.

While we cannot guarantee appellant will be successful if further training is provided, we also cannot say with certainty that she will not be successful. Given a reasonable amount of time, and' the proper training, appellant has the potential to develop the skills necessary to care for Codyus. See Matter of Adoption of Ferrante, supra (two years to renew relationship with daughter not unreasonable); Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59 (1982) (two and one-half years to rehabilitate parent to care for child not unreasonable).

it is improper to hurry to extinguish parental rights. The existence of foster parents ready, willing, and able to assume parental duties is irrelevant. “The Commonwealth may disrupt the parent-child relationship only upon a clear showing of necessity.” In Re Adoption of R.I., 468 Pa. 287, 294, 361 A.2d 294, 297 (1976), cert, denied, 429 U.S. 1032, 97 S.Ct. 722, 50 L.Ed.2d 743 (1977). Accord In Re Long, 313 Pa.Super. 47, 459 A.2d 403 (1983). No such showing was made in this case. Even in a situation such as this where removal is necessary to protect the child until the mother can learn to care for the child, every effort should be made to reunite the family. In re Adoption of R.I., supra. YCCS must offer appellant further assistance and allow her a reasonable opportunity to become efficient in meeting Codyus’ needs. We conclude the trial court lacked the requisite evidentiary support for its determination that appellant’s incapacity continued and that such incapacity was irremediable. Therefore, we reverse the order terminating appellant’s rights.

      . Act of October 15, 1980, P.L. 934, NO. 163, § 1, 23 Pa.C.S. §§ 2101 to 2908, effective January 1, 1981.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    501 A.2d 1128
    Steven SCHRINER and Terry Schriner, His Wife, t/a Schriner Farms v. PENNSYLVANIA POWER & LIGHT COMPANY, Ray D. Shenk, t/a Shenk’s Farm Service, Individually and as Agent for Dairy Equipment Company and Dairy Equipment Company t/a Boumatic. Appeal of PENNSYLVANIA POWER & LIGHT COMPANY, Pennsylvania Public Utility Commission, Amicus Curiae.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed Dec. 6, 1985.

      Patrick J. O’Connor, Philadelphia, for appellant.
    John R. Bonner, Williamsport, for Schriner, appellees.
    Kevin E. Osborne, Harrisburg, for Shenk, appellee.
    Richard J. Mills, Pittsburgh, for Dairy Equip., appellee.

      Before SPAETH, President Judge, and JOHNSON and SHOYER , JJ.

       Judge SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   JOHNSON, Judge:

In this appeal, an electric power company asks us to decide whether the Pennsylvania Public Utility Commission (PUC), rather than the court of common pleas, has primary jurisdiction over a suit alleging injury to dairy cattle as a result of “stray voltage” from milking equipment electrified by the power company. The company would also have us determine whether the doctrine of strict liability in tort may be applied against a Pennsylvania public utility. The appeal is from an interlocutory order which denied the preliminary objections of Appellant, Pennsylvania Power & Light Company (PP & L). The PUC has filed a brief, as amicus curiae, claiming that it has initial and primary jurisdiction. We granted Appellant’s petition for permission to appeal.

We conclude that the trial court was correct in its conclusion that jurisdiction of this matter properly lies with the court of common pleas. We also conclude that the doctrine of strict liability may, under proper circumstances, be applied against a Pennsylvania public utility. Accordingly, we affirm the holding of the court below and remand for further proceedings not inconsistent with the views set forth herein.

Appellees Steven and Terry Schriner (the Schriners) seek damages for the loss of their dairy cattle which, as a result of a mastitis infection, either died or had to be destroyed. The Schriners allege that this infection occurred as a result of “stray voltage” from milking equipment which had been manufactured by Appellee Dairy Equipment Company t/a Boumatic, sold and installed by Appellee Ray D. Shenk t/a Shenk’s Farm Service, and electrified by PP & L.

The first of the two controlling questions of law certified to this Court for review concerns whether the Pennsylvania Public Utility Commission, and not the court, has primary jurisdiction over the subject matter of this litigation. We think not.

It was recently stated by our supreme court that “[cjourts should not be too hasty in referring a matter to an agency, or to develop a ‘dependence’ on the agencies whenever a controversy remotely involves some issue falling arguably within the domain of the agency’s ‘expertise.’ ” Elkin v. Bell Telephone Company of Pennsylvania, 491 Pa. 123, 134, 420 A.2d 371, 377 (1980). With this caveat in mind, we proceed to address PP & L’s first issue.

The Public Utility Code, Act of July 1, 1978, P.L. 598, No. 116, § 1, 66 Pa.C.S. § 101 et seq., placed a broad range of subject matter under the control of the PUC making that agency responsible for ensuring the adequacy, efficiency, safety and reasonableness of public utility services, facilities and/or rates. See 66 Pa.C.S. § 1501; Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977). In addition, there are benefits to be derived from making use of the special experience and expertise of the PUC in complex areas with which judges and juries have little familiarity. See Elkin v. Bell Telephone Company of Pennsylvania, supra. Therefore, where the subject matter is within an agency’s jurisdiction and where it is a complex matter requiring special competence, with which the judge or jury would not or could not be familiar, the proper procedure is for the court to refer the matter to the appropriate agency. Id. 491 Pa. at 134, 420 A.2d at 377.

The first question we must ask, then, is whether the instant lawsuit involves the reasonableness, adequacy or sufficiency of Appellant PP & L’s operation of its transmission lines, thereby bringing this case within the primary jurisdiction of the PUC. Appellant relies heavily upon Elkin in making its argument that primary jurisdiction of this issue rests with the PUC. In Elkin, however, plaintiff stood in the position of a consumer of the particular utility involved, alleging that the insufficiency of telephone services provided to plaintiff led to various damages. Thus, the question upon which liability attached was the reasonableness, adequacy and sufficiency of the telephone service being furnished to a known customer.

In the instant case, while the Schriners have ostensibly sued from the position of consumers, the complaint contains allegations which only remotely deal with the reasonableness, adequacy, efficiency or safety of the services, facilities or rates provided by Appellant, PP & L. Among the specific allegations of negligence, the Schriners have stated that PP & L, having exclusive control of its distribution system, allowed voltage to escape therefrom in large enough quantity to adversely affect the Schriners’ dairy cattle; that PP & L failed to advise the Schriners of corrective measures which could have been taken by them to eliminate the stray voltage problem; and that PP & L undertook to advise and supervise corrective measures to eliminate the problem and did so negligently, allowing the problem to continue and eventually injure the Schriners. These are traditional concepts of negligence which only tangentially address the reasonableness, adequacy and sufficiency of the electric service being provided by PP & L.

PP & L argues, further, that the problem of “stray voltage” is so complex that it requires the special expertise of the PUC. However, resolution of the Schriners’ claims depends upon no rule or regulation predicated upon the peculiar expertise of the PUC, no agency policy, no question of service or facilities owed the general public, and no particular standard of safety or convenience articulated by the PUC. DeFrancesco v. Western Pennsylvania Water Company, 499 Pa. 374, 378, 453 A.2d 595, 597 (1982).

The gravamen of the Schriners’ complaint is that they sustained injury due solely to the negligence of PP & L in failing to deal with the problem of stray electricity on the Schriners’ farm. It is important to note that a complaint brought before the PUC, seeking damages, may not result in an award by that body, even should the PUC determine the complaint to be meritorious, as the PUC lacks authority to make such an award. See Feingold v. Bell of Pennsylvania, supra. This was the type of situation addressed by our supreme court in Elkin, supra, where it was stated:

Where ... the matter is not one peculiarly within the agency’s area of expertise, but is one which the courts or jury are equally well-suited to determine, the court must not abdicate its responsibility. In such cases, it would be wasteful to employ the bifurcated procedure of referral [to the PUC], as no appreciable benefits would be forthcoming.

Elkin, supra, 491 Pa. at 134-35, 420 A.2d at 377 (footnote omitted).

Thus, we agree with the trial court that
[w]hile the expertise of a member of the PUC would be helpful, this area of litigation is no more complex than many others which come before the Court. With the assistance of expert testimony, there is no reason why a judge or jury could not become familiar with the alleged problem of stray voltage injury to dairy cattle.

Opinion, 5/31/83 at 4. And, we agree with Elkin that it would be wasteful to employ a bifurcated procedure of referral to the PUC, as that body is incapable of providing an adequate remedy should the Shriners’ complaint be found to have merit. Resolving the essential question of whether PP & L failed to perform what is alleged to have been an affirmative duty requires no special knowledge or experience and falls within the scope of the ordinary business of our courts. See DeFrancesco v. Western Pennsylvania Water Company, supra, 499 Pa. at 378, 453 A.2d at 597.

The second controlling question of law certified to this Court for review concerns the applicability of the doctrine of strict liability in tort to a Pennsylvania public utility.

Our courts have long recognized that the standard of care imposed upon a supplier of electric power, particularly when that power is supplied at high voltage, is among the highest recognized in the law of negligence, Densler v. Metropolitan Edison Company, 235 Pa.Super. 585, 345 A.2d 758 (1975); and that, while a supplier of electricity must exercise the highest degree of care, it is not an insurer against injury. Skoda v. West Penn Power Company, 411 Pa. 323, 191 A.2d 822 (1963); Kintner v. Claverack Rural Electric Co-operative, Inc., 329 Pa.Super. 417, 478 A.2d 858 (1984). In Karam v. Pennsylvania Power & Light Company, 205 Pa.Super. 318, 322, 208 A.2d 876, 878 (1965), this Court unequivocally stated that “the salutary and well settled rule in this Commonwealth is that one using a dangerous agency or instrumentality is bound to exercise care commensurate with the danger. One maintaining a high voltage electric wire line is required to exercise the highest degree of care practicable.” See also Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957); Bosley v. Central Vermont Public Service Corporation, 127 Vt. 581, 255 A.2d 671 (1969).

The appellate courts of this Commonwealth have not, however, directly addressed the possible application of strict liability, under the Restatement (Second) of Torts, to a supplier of electricity. But see University of Pittsburgh v. Equitable Gas Company, 5 Pa.D. & C.3d 303 (Alleg.Co. 1978); Wivagg v. Duquesne Light Company, 73 Pa.D. & C.2d 694 (Meg.Co.1975).

Pennsylvania case law has expressly recognized the doctrine of strict liability as set forth under Restatement (Second) of Torts § 402A. See Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Section 402A provides:

§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

When we distill § 402A into its constituent elements, we find that the following are necessary to an appropriate application of this section:

(1) a product;
(2) a sale of that product;
(3) a user or consumer;
(4) a defective condition, unreasonably dangerous; and
(5) causation — that the product caused physical harm to the ultimate user or consumer, or to his property.

If any of these requisite elements remains unsatisfied, § 402A has no applicability.

The first of these elements, then, requires a determination by this Court that electricity is a “product” for purposes of § 402A liability. While this is an issue of first impression in this Commonwealth, several other states which have considered whether electricity may be considered a “product” under § 402A have concluded that it is. See, e.g., Pierce v. Pacific Gas & Electric Company, 166 Cal.App.3d 68, 212 Cal.Rptr. 283 (1985); Smith v. Home Light and Power Company, 695 P.2d 788 (Colo., 1984); Hedges v. Public Service Company of Indiana, Inc., 396 N.E.2d 933 (Ind.App., 1979); Petroski v. Northern Indiana Public Service Company, 171 Ind.App. 14, 354 N.E.2d 736 (1976); Ransome v. Wisconsin Electric Power Company, 87 Wis.2d 605, 275 N.W.2d 641 (1979). Cf. Genaust v. Illinois Power Company, 62 Ill.2d 456, 343 N.E.2d 465 (1976) (in which the court assumes, arguendo, that electricity is a “product” for purposes of a § 402A analysis). Our research has produced no case in which there was a determination by the court that electricity should not be considered a product for purposes of strict liability.

PP & L asserts that appellate courts from other jurisdictions have found that electricity is not a product. The cases cited by PP & L do not support such an assertion. In Farina v. Niagara Mohawk Power Corporation, 81 A.D.2d 700, 488 N.Y.S.2d 645 (1981), for example, the court, in dictum, stated that “throughout the discussions in the commentaries and the cases dealing with the claims of those who have been injured through contact with electrical lines there is the implicit suggestion that electricity____is not a product within the contemplation of the doctrine’s [402A] authors.” Id. at 700, 438 N.Y.S.2d at 647. This was not a holding of the case, however, which merely reversed a denial by the lower court of defendant’s motion to dismiss plaintiff’s causes of action for strict products liability and breach of warranty. A holding that “electricity is not a product” was not necessary to the court’s disposition and the court did not so hold.

In Rodgers v. Chimney Rock Public Power District, 216 Neb. 666, 345 N.W.2d 12 (1984), a negligence case, plaintiff had urged that the court adopt the doctrine of strict liability with respect to the distribution of electrical power and that the court consider electric power a product or “goods” so that the rules regarding implied warranties would be applicable. Id. at 671, 345 N.W.2d at 15-16. The court did not, as Appellant states, “reject[ ] the notion that electricity is a product within the purview of section 402A of the Restatement (Second) of Torts”) the court merely refused to entertain a theory of strict liability in a negligence case.

In Pilkington v. Hendricks County Rural Electric Membership Corporation, 460 N.E.2d 1000 (Ind.App., 1984), another negligence case, the court described the standard of care required of companies transmitting electricity, stating that “the doctrine of strict liability is inapplicable to electric utilities.” 460 N.E.2d at 1005. The court made no determination as to whether electricity can or can not be considered a product for purposes of § 402A. Nor can we find any such determination — that electricity can not be considered a product — in either of the two remaining cases cited by PP & L: Wirth v. Mayratkh Industries, Inc., 278 N.W.2d 789 (N.D.1979) and Ferguson v. Northern States Power Company, 307 Minn. 26, 239 N.W.2d 190 (1976).

In Ransome v. Wisconsin Electric Power Company, 87 Wis.2d at 610, 275 N.W.2d at 643, the Wisconsin Supreme Court stated:

While there probably are numerous technical definitions of “electricity,” we need not be concerned with those accurate descriptions here — suffice it to say it is a form of energy that can be made or produced by men, confined, controlled, transmitted and distributed to be used as an energy source for heat, power and light and is distributed in the stream of commerce. The distribution might well be a service, but the electricity itself, in the contemplation of the ordinary user, is a consumable product.

We agree with the reasoning of the Wisconsin court, and hold that electricity can be a “product,” within the meaning of § 402A.

It is not sufficient for an analysis of possible § 402A liability, however, that we determine simply that electricity is a product within the meaning of that section. The sale of a product is fundamental to any strict liability claim. See § 402A(1). See also Smith v. Home Light and Power Company, supra. With a product such as electricity, a literal “sale” of the product may not be required; however, courts willing to call electricity a product have been consistent in holding that the electricity must have been placed into the stream of commerce before § 402A strict liability can attach. See Pierce v. Pacific Gas & Electric Company, supra; Cratsley v. Commonwealth Edison Company, 38 Ill.App.3d 55, 847 N.E.2d 496 (1976); Hedges v. Public Service Company of Indiana, Inc., supra; Petroski v. Northern Indiana Public Service Company, supra; Williams v. Detroit Edison Company, 63 Mich.App. 559, 234 N.W.2d 702 (1975); Aversa v. Public Service Electric and Gas Co., 186 N.J.Super. 130, 451 A.2d 976 (1982).

Entry of electricity into the stream of commerce has been deemed to occur, generally, when the electricity leaves the transmission lines and passes through the customer’s meter. See, e.g., Williams v. Detroit Edison Company, supra. In Pierce v. Pacific Gas & Electric Company, 166 Cal.App.3d 68, 212 Cal.Rptr. 283 (1985), the California Court of Appeal stated:

We emphasize that our holding is limited to cases where the electricity is actually in the “stream of commerce,” and expected to be at marketable voltage. In most cases this will mean the electricity must be delivered to the customer’s premises, to the point where it is metered, although the many variations in electrical systems prevent our drawing a “bright line” at a particular point.

Id. at 84, 212 Cal.Rptr. at 292 (footnote omitted) (emphasis added). Similarly, in Aversa v. Public Service Electric and Gas Co., 186 N.J.Super. 130, 451 A.2d 976 (1982), the New Jersey Superior Court emphasized:

Where, however, the electricity is no longer in transmission in the public right of way, but has been introduced into the stream of commerce by a sale thereof or otherwise, the liability of the electric company is no longer dependent upon a showing of negligence but may be based upon a product liability cause of action unrelated to fault.

Id. at 135, 451 A.2d at 979 (emphasis in original) (citations omitted). The Aversa court explained the reasoning behind the holdings above-described:

The cases in which liability for electricity is restricted to the traditional principles of negligence ... confront only the situation where the electricity is being transmitted over high tension wires for ultimate availability to the consuming public. The transmission of electricity, as well as the transmission of other similar type consumable goods, is a service being rendered by the utility to prospective purchasers. While being transmitted, liability is controlled by standards of negligence and not strict liability, since any injury sustained as a result thereof is causally connected only to the transmission or transportation service and is unrelated to the ultimate sale of the product.

Id. at 135, 451 A.2d at 979.

In other words, while still in the distribution system, electricity is a service, not a product; electricity only becomes a product, for purposes of strict liability, once it passes through the customer’s meter and into the stream of commerce. See Smith v. Home Light and Power Company, supra.

Thus, under our holding herein, if electricity “in a defective condition, unreasonably dangerous” passes through the meter of a user or consumer and into the stream of commerce, causing physical harm to the ultimate user or consumer, or to his property, the doctrine of strict liability in tort may be applied against the public utility which “engaged in the business of selling such a product,” which product “[was] expected to and [did] reach the user or consumer without substantial change in the condition in which it was sold.” Restatement (Second) of Torts § 402A(1).

While Appellant PP & L argues that public policy militates against this conclusion, this Court believes otherwise. The inquiry regarding public policy is for the court, Azzarello v. Black Brothers Company, Inc., 480 Pa. 547, 558, 391 A.2d 1020, 1025-26 (1978); Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 46-51, 485 A.2d 408, 420-23 (1984) (en banc), allocatur granted; Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 359-62, 437 A.2d 417, 424-26 (1981), and the factors relevant to the inquiry support the application of strict liability to a utility company supplying electricity as a product. See generally Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 33 n. 15, 319 A.2d 903, 908 n. 15 (1974); Kassab v. Central Soya, 432 Pa. 217, 230-31 n. 6, 246 A.2d 848, 854, n. 6 (1968); Dambacher by Dambacher v. Mollis, supra 336 Pa.Super. at 50-51, 485 A.2d at 423. But see Comment, Torts of Electric Utilities: Can Strict Liability Be Plugged In?, 11 Loyola L.A.L.Rev. 775 (1978).

Order affirmed. Remanded for proceedings not inconsistent with this Opinion. Jurisdiction is not retained.


author: WIEAND, Judge:

text:
    501 A.2d 1134
    COMMONWEALTH of Pennsylvania, Appellee, v. Dennis W. KIRCHNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1985.
    Filed Dec. 6, 1985.
    Petition for Allowance of Appeal Denied June 4,1986.

      Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WIEAND, Judge:

Dennis W. Kirchner, appellant, challenges the constitutionality of Section 9712 of the Mandatory Sentencing Act, 42 Pa.C.S. § 9712, which provides that any person convicted of certain enumerated offenses shall be sentenced to a minimum term of imprisonment of five years if he or she visibly possessed a firearm during the commission of the offense. Appellant argues that this provision (1) violates state and federal proscriptions against double jeopardy; (2) conflicts with his right of allocution; and (3) is invalid because it does not contain a provision for both a minimum and maximum sentence. There being no merit in any of these contentions, we affirm the judgment of sentence.

On April 5, 1983, Dennis W. Kirchner was convicted, inter alia, of robbery. On June 28,1983, after his Motion to Stop Imposition of Sentence had been denied, Kirchner was sentenced to a term of imprisonment for not less than five years nor more than ten years. There was no direct appeal. On January 27, 1984, appellant filed a P.C.H.A. petition alleging ineffective assistance of trial counsel. A hearing was held on October 9, 1984, and on October 10, 1984 appellant's right of appeal was reinstated for the sole purpose of allowing him to challenge the constitutionality of 42 Pa.C.S. § 9712.

Appellant argues that Section 9712 violates constitutional principles of double jeopardy because it requires the sentencing judge to act as a second jury in finding whether a “firearm” was possessed by the actor during commission of a crime and also whether the firearm was “visible.” This additional factual determination, appellant contends, violates principles of double jeopardy.

The double jeopardy protections afforded by the Constitutions of the United States and Pennsylvania are coextensive. Commonwealth v. Hude, 492 Pa. 600, 613, 425 A.2d 313, 320 (1980); Commonwealth v. Beaver, 317 Pa.Super. 88, 98-99, 463 A.2d 1097, 1103 (1983). These constitutional provisions protect every individual from being subjected to successive prosecutions for a single offense. See: Com monwealth v. Button, 332 Pa.Super. 239, 249, 481 A.2d 342, 347 (1984), quoting Commonwealth v. Henderson, 482 Pa. 359, 368, 393 A.2d 1146, 1151 (1978); Commonwealth v. Laing, 310 Pa.Super. 105, 111, 456 A.2d 204, 207 (1983); Commonwealth v. DiValerio, 283 Pa.Super. 315, 321, 423 A.2d 1273, 1276-1277 (1980), quoting Commonwealth v. Meekins, 266 Pa.Super. 157, 162-163, 403 A.2d 591, 593-594 (1979).

In the instant case, appellant argues, he was subjected to two prosecutions for the same offense. The first prosecution consisted of the trial, he contends, and the second occurred during the sentencing hearing. We reject appellant’s characterization of the sentencing hearing as a second prosecution. Appellant was convicted of robbery as a result of the trial. Section 9712 did not create a separate crime; it merely provided a minimum sentence to be imposed after he had been convicted. The sentencing judge was merely imposing sentence after taking into consideration, inter alia, all circumstances of the offense. Sentencing does not constitute a separate prosecution. Commonwealth v. Waters, 491 Pa. 85, 93, 418 A.2d 312, 316 (1980). Appellant was not, therefore, twice placed in jeopardy for the same offense. Cf. Commonwealth v. Ash, 482 Pa. 590, 394 A.2d 479 (1978) (bifurcated proceeding for entering guilty plea and determining degree of guilt was but a single prosecution and therefore did not violate principles of double jeopardy); Commonwealth v. Charles, 339 Pa.Super. 284, 488 A.2d 1126 (1985) (fact-finding procedure that occurred at sentencing hearing which was duplication of that which had occurred at guilty plea hearing did not subject defendant to multiple prosecutions).

Appellant also contends that 18 Pa.C.S. § 9712 is in conflict with Pa.R.Crim.P. 1405(a), which guarantees to a defendant the right of allocution. However, section 9712 in no way prevents a defendant from making a statement on his own behalf. His right of allocution continues to be a valuable right because, although the sentencing judge cannot reduce the minimum sentence required by the statute, the judge is free to sentence the defendant to prison for a period in excess of the mandatory minimum. Therefore, the right of allocution provided for in Rule 1405(a) retains its viability and significance.

Finally, appellant argues that Section 9712 is invalid because it establishes only a mandatory minimum sentence and does not provide for a maximum sentence. The maximum sentence for felonies, however, has been established by the legislature at 18 Pa.C.S. § 1103. When read together, Section 9712 and Section 1103 establish both minimum and maximum sentences for robbery committed with a firearm.

Judgment of sentence affirmed.

      . Appellant argues also that Section 9712 violates due process. This argument is clearly without merit. See: Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985); Commonwealth v. Norris, 346 Pa.Super. 351, 499 A.2d 644 (1985); Commonwealth v. Bannister, 345 Pa.Super. 178, 497 A.2d 1362 (1985).


text:
    501 A.2d 1137
    COMMONWEALTH of Pennsylvania, Appellee, v. George MARKLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 5, 1985.
    Filed Dec. 6, 1985.

      Joseph P. Martone, Erie, for appellant.
    Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before WIEAND, POPOVICH and LIPEZ, JJ.
   WIEAND, Judge:

This appeal is from an order dismissing appellant’s P.C. H.A. petition on grounds that it became moot after he had served the sentence imposed. We conclude that the requested relief is not moot and reverse.

George Markley, represented by an assistant public defender, was tried by jury and found guilty of three counts of theft by deception and one count of issuing a bad check. Post-trial motions were filed, but they were dismissed by the trial court. On March 28, 1983, prior to sentencing, Markley requested that his trial counsel be removed and new counsel appointed. On April 4, 1983, still represented by an assistant public defender, Markley was sentenced to pay a fine of $500.00 and undergo imprisonment for not less than one nor more than two years. Thereafter, the court entered an order removing trial counsel, retroactive to April 4, 1983. The court neglected to appoint new counsel, however, until after the time for appeal had expired.

Five days after the appeal period expired, on May 9, 1983, Markley filed pro se a P.C.H.A. petition in which he alleged, inter alia, that he had been denied his right of appeal and that his trial counsel had rendered ineffective assistance. On May 16, 1983, the trial court signed an order appointing new counsel and allowing an appeal to the Superior Court nunc pro tunc. His P.C.H.A. petition was dismissed because of the anticipated appeal. A direct appeal, however, was never perfected.

Markley was released from prison and was placed on parole on August 31, 1983. He completed his parole on June 22, 1984,

On July 27, 1984, Markley filed an amended P.C. H. A. petition which, inter alia, restated the averments in his first petition that he had been deprived of his right of appeal and had received ineffective assistance from trial counsel. At a hearing on February 4, 1985, the Commonwealth argued that the P.C.H.A. petition was moot because Markley had completed his sentence and was not then on probation or parole. After taking testimony on the issue of mootness, the hearing court found that Markley was not in danger of severe civil or social consequences as a result of his earlier conviction and dismissed his petition on grounds that it had become moot. On appeal therefrom, Markley contends that the P.C.H.A. court was in error when it found his petition moot and that this Court should remand for an evidentiary hearing on issues raised in his amended P.C. H.A. petition.

To be eligible for relief according to the language of the Post Conviction Hearing Act, a person must show “that he has been convicted of a crime” and “that he is incarcerated in this Commonwealth under a sentence of death or imprisonment or on probation or parole.” 42 Pa.C.S. § 9543(1), (2). In a series of cases beginning with Commonwealth ex rel. Ulmer v. Rundle, 421 Pa. 40, 218 A.2d 233 (1966), however, the Supreme Court of this Commonwealth has modified the statutory requirement that a petitioner be incarcerated or on probation or parole at the time his petition is reviewed.

In Ulmer, the defendant had been convicted and sentenced to prison after violating the terms of probation imposed for a prior offense. During parole from this sentence for probation violation, he was convicted and sentenced for committing a new crime, the sentence to run consecutively with the sentence for probation violation. Ulmer was also convicted and sentenced for a third offense, the sentence for which was to begin at the expiration of all preceding sentences. The state parole board recommitted Ulmer for violating his parole and directed that he serve the balance of his original sentence for probation violation. After he had served this sentence, Ulmer commenced an action for habeas corpus. He alleged that his conviction for probation violation was invalid because he had been denied the right to counsel. The Supreme Court rejected a contention that the petition was moot, for Ulmer’s invalid conviction would directly affect the duration of the subsequent valid sentences.

Ulmer was followed five years later by Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971). Sheehan had been convicted in 1963 of driving while under the influence of alcohol and had paid a fine. Five years later, Sheehan was again arrested for driving while intoxicated. He was informed prior to trial that the local penalty for a second drunk driving offense would be a $200 fine, plus the costs of the prosecution, and three months in prison. Sheehan filed a P.C.H.A. petition alleging that his prior conviction in 1963 was invalid because he had not been represented by counsel. The P.C.H.A. court dismissed the petition, holding that because Sheehan had completely satisfied the sentence imposed in 1963, the validity of the prior conviction had become a moot issue. The Superior Court affirmed, limiting the Ulmer decision to its specific facts, i.e., where a petitioner is serving a legal sentence immediately following an invalid sentence.

The Supreme Court rejected this limitation of its holding in Ulmer. Instead, the Court announced a “collateral criminal consequences” rule. Commonwealth v. Sheehan, supra, 446 Pa. at 42, 285 A.2d at 468. This rule allowed “an attack on a satisfied sentence which is shown to affect directly any subsequent criminal prosecution or conviction.” Id., 446 Pa. at 42, 285 A.2d at 469. Relying on decisions of the United States Supreme Court, the Court held that a possibility that Sheehan might be classified as a second offender and thereby subjected to a harsher penalty was itself a collateral criminal consequence sufficient to prevent his P.C.H.A. petition from being moot. The Court added by way of dictum that in light of the cited federal decisions, the possibility of either civil or criminal collateral consequences ought to be sufficient to prevent a collateral attack from being held moot. Id., 446 Pa. at 42-43 n. 9, 285 A.2d at 469 n. 9 (emphasis added).

In Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976), the defendant had been convicted of obtaining a loan under false pretenses and also of fraudulent conversion. He had satisfied the judgment of sentence by paying fines of $150 on each count. He later filed a P.C.H.A. petition attacking his conviction. The P.C.H.A. court dismissed the petition without hearing on grounds that it was moot. Doria argued to the Supreme Court that he had suffered severe social and civil consequences as a result of his conviction, “including but not limited to, the forced resignation of his position as Dean of the Vermont Law School, voting restrictions in several states, and the fear of being impeached should he ever testify on his own behalf or on behalf of someone else in a trial court case.” Commonwealth v. Doria, supra, 468 Pa. at 538, 364 A.2d at 324. Building upon its prior decision in Commonwealth v. Shee-han, supra, the Court expanded the parameters of the collateral consequences rule to include direct civil consequences. The Court said:

We are not prepared to conclude that a lifetime of forced unemployment, or employment in a job other than in one’s chosen profession, is a consequence any less severe than an additional few weeks incarceration. Nor are we prepared to hold that drawing the dividing line between civil and criminal consequences flowing from an allegedly invalid conviction is the only rational place to do so. In an earlier day, cutting off review when challenged convictions did not result in criminal consequences may have provided a reasonable end to litigation while imposing no undue burden on individual rights. With the advent of computer technology, however, and the great increase in the number of persons whose qualifications will be reviewed by professional and academic societies, it can no longer be said that precluding review where no criminal consequences exist places no undue burden on an individual’s rights. People today will repeatedly be asked by employers, by professional and academic societies, by lending institutions, and by others if they have ever been convicted of a crime. Frequently, the question will be asked of a computer without the knowledge of the person involved and frequently an unreversed conviction — even if achieved without due process or if otherwise fatally flawed — can cause a potential employer to select another candidate; can bar access to professional associations to which one must belong before one can practice a chosen profession; can result in the refusal to grant a loan which might otherwise have been given.

Id., 468 Pa. at 539-540, 364 A.2d at 325. Because Doria had suffered a direct, disabling consequence of his conviction by being compelled to resign from his position as Dean of Vermont Law School, this was adequate, the Court held, to prevent the issues raised in Doria’s P.C.H.A. petition from being moot.

Finally, in Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979), the Court extended Pennsylvania’s collateral consequences doctrine to embrace the federal approach in its entirety. Leland Rohde had entered a plea of nolo contendere to a charge of possessing amphetamines. He had been given a ninety day suspended sentence and had been fined $300. After failing to appeal the judgment of sentence, Rohde filed a P.C.H.A. petition in which he contended that he had not been informed of his right to appeal and that his plea of nolo contendere had not been knowingly entered. The P.C.H.A. court dismissed the petition on grounds of mootness because Rohde was not subject to a continuing disability as a result of his conviction. Rohde appealed to the Superior Court, which remanded to the F.C.H.A. court for reconsideration in light of the Supreme Court decision in Commonwealth v. Doria, supra. The P.C.H.A. court again dismissed Rohde’s petition, holding that because Rohde had shown only the possibility, not the actuality, of social and civil disabilities, Doria was inapplicable. Under these circumstances, the court concluded, Rohde lacked standing to challenge his conviction. The Supreme Court, after reexamining its earlier decisions, determined that there was

... no logical reason for not extending Doria in the same way Sheehan extended Commonwealth ex rel. Ulmer v. Rundle, supra, i.e., from a showing of direct consequences resulting from a conviction to a mere showing of the possibility of consequences. If the possibility of consequences is sufficient to avoid mootness in subsequent criminal actions ... the same possibilities should have the same effect on the mootness issue where social and civil consequences are involved.

Rohde, supra, 485 Pa. at 408, 402 A.2d at 1027 (emphasis added). The Court held, therefore, that the mere anticipation by Rohde that he would encounter “possible difficulty” in being admitted to the practice of law was sufficient social or civil disability to establish standing to challenge his prior plea of nolo contendere.

In the instant case, Markley identified various social and civil consequences that might attend his convictions for theft by deception and writing a bad check. He argued to the P.C.H.A. court that as a result of his conviction, (1) he had been denied the opportunity to continue a self-owned construction business while incarcerated and had been unable to work following his release from prison; (2) his relationships with members of his family had deteriorated; (3) his reputation within the community had been adversely affected; (4) he had lost the benefit of a seven year period in which he had no record of criminal activity; and (5) he would be subject to harsher penalties under the sentencing guidelines if he were later convicted of another offense. The P.C.H.A. court concluded that Markley’s lack of employment opportunities were not caused by his conviction and, in light of Markley’s extensive criminal record, that the remainder of his contentions lacked merit. Markley argues on appeal that the Supreme Court’s holding in Rohde, supra, which was neither discussed nor cited by the P.C.H.A. court, requires that we reverse the dismissal of his petition on grounds of mootness. We are constrained to agree.

In Commonwealth v. Doria, supra, the Supreme Court envisioned that possible civil consequences of a conviction might well include the denial of employment opportunities, of access to professional associations, or of disallowed loan applications that might otherwise have been approved. Id., 468 Pa. at 540, 364 A.2d at 325. In Commonwealth v. Rohde, supra, the Court extended the collateral consequences rule to accommodate social disabilities which might arise from a conviction. However, the Supreme Court did not then establish guidelines for determining social and civil consequences which would be sufficient to avoid dismissal on grounds of mootness. For insight regarding the parameters of the collateral consequences doctrine, therefore, we examine the federal decisions from which the present rule in Pennsylvania has evolved.

The leading case is Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). There, the defendant had been convicted of the unlawful possession of heroin. He appealed, alleging that the heroin seized from him by police officers had been improperly received in evidence. The defendant was denied relief by each level of New York’s appellate courts. By the time his conviction reached the United States Supreme Court, Sibron had completed the six month sentence imposed upon him following conviction. The Supreme Court, in determining whether the issues had become moot, observed that in its 1943 decision in St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943), it had recognized an exception to the mootness doctrine in situations where a defendant had completely served his sentence before his appeal was heard by the Supreme Court. The exception underlying the collateral consequences doctrine permitted an “adjudication of the merits of a criminal case where ‘under either state or federal law further penalties or disabilities can be imposed ... as a result of the judgment which has ... been satisfied.’ ” 392 U.S. at 53-54, 88 S.Ct. at 1898, 20 L.Ed.2d at 929. In Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), moreover, the Court had “abandoned all inquiry into the actual existence of specific collateral consequences and in effect presumed that they existed.” See: Sibron v. New York, supra, 392 U.S. at 55, 88 S.Ct. at 1898, 20 L.Ed.2d at 930. The decision in Pollard, the Sibron court opined, had merely “acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.” Id. at 55, 88 S.Ct. at 1899, 20 L.Ed.2d at 930. Thus, in Sibron, the Court held that the “mere ‘possibility’ that this will be the case is enough to preserve a criminal case from ending ‘ignominiously in the limbo of mootness.’ ” Id. In fact, the Court stated, “a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” Id. at 57, 88 S.Ct. at 1900, 20 L.Ed.2d at 931-932 (emphasis added).

The facts of Sibron are similar to those in the instant case. Therefore, the Supreme Court’s broad application of the collateral consequences doctrine in that case is especially instructive. There, the State of New York had asserted that the defendant, who already had a record as a multiple offender, would be unlikely to experience any collateral consequences as a result of an additional conviction. The Supreme Court rejected this position, saying:

... we see no relevance in the fact that Sibron is a multiple offender____ A judge or jury faced with a question of character, like a sentencing judge, may be inclined to forgive or at least discount a limited number of minor transgressions, particularly if they occurred at some time in the relatively distant past. It is impossible for this Court to say at what point the number of convictions on a man’s record renders his reputation irredeemable. And even if we believed that an individual had reached that point, it would be impossible for us to say that he had no interest in beginning the process of redemption with the particular case sought to be adjudicated. We cannot foretell what opportunities might present themselves in the future for the removal of other convictions from an individual’s record. The question of the validity of a criminal conviction can arise in many contexts, compare Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), and the sooner the issue is fully litigated the better for all concerned. It is always preferable to litigate a matter when it is directly and principally in dispute, rather than in a proceeding where it is collateral to the central controversy. Moreover, litigation is better conducted when the dispute is fresh and additional facts may, if necessary, be taken without a substantial risk that witnesses will die or memories fade. And it is far better to eliminate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State’s right to impose it on the basis of some past action. Cf. Peyton v. Rowe, 391 U.S. 54, 64, 88 S.Ct. 1549, 1554, 20 L.Ed.2d 426 (1968).

Id. at 56-57, 88 S.Ct. at 1899, 20 L.Ed.2d at 930-931 (footnotes omitted). Evident in this discussion was the Court’s concern for the social consequences of a wrongful conviction. It was the same concern which later prompted the Pennsylvania Supreme Court’s recognition of similar disabilities in Commonwealth v. Rohde, supra.

The law established by these decisions compels our conclusion that the P.C.H.A. court in this case erred when it relied upon Markley’s prior convictions to negative any social consequences as a result of his convictions. Indeed, Sibron suggests that the destruction of a favorable inference of a changed life because of prior misconduct is precisely the type of consequence which prevents a collateral attack from being moot.

There is a distinction, as the Sibron court observed, between a general impairment of credibility and a specific statutory authorization to use a conviction to impeach the character of a defendant in a legal proceeding. There, the Court was concerned with a New York statute which provided that a defendant’s conviction could be used to impeach his character if he put his character in issue during a future criminal trial. Id. at 55-56, 88 S.Ct. at 1899, 20 L.Ed.2d at 930 (citing N.Y.Code Crim.Proc. § 393-c). Another New York law would have required that his conviction be placed before a trial judge for consideration in determining the sentence to be imposed should Sibron again be convicted of a crime. Id. at 56, 88 S.Ct. at 1899, 20 L.Ed.2d at 930 (citing N.Y.Code Crim.Proc. § 482). The Court concluded that the disabilities attending these provisions, although speculative, were the collateral consequences referred to in Pollard, supra. Id. at 55, 88 S.Ct. at 1898-1899, 20 L.Ed.2d at 930. The law in Pennsylvania is similar. A witness, whether in a criminal case or a civil case, may be impeached by a showing that he was previously convicted of a crime involving an element of dishonesty. See: Commonwealth v. Davis, 491 Pa. 363, 371, 421 A.2d 179, 183 (1980); Commonwealth v. Roots, 482 Pa. 33, 37, 393 A.2d 364, 366 (1978); Commonwealth v. Bighum, 452 Pa. 554, 566, 307 A.2d 255, 262 (1973); McIntosh v. Pittsburgh Railways Co., 432 Pa. 123, 125, 247 A.2d 467, 468 (1968); Commonwealth v. Gallagher, 341 Pa.Super. 152, 157, 491 A.2d 196, 199 (1985); Commonwealth v. Jennings, 335 Pa.Super. 404, 407, 484 A.2d 409, 411 (1984). In addition, Pa.R.Crim.P. 1403A(1) provides that a “sentencing judge may, in his discretion, order a pre-sentence investigation report in any case.” If a report is prepared, it must “include information regarding the circumstances of the offense and the character of the defendant sufficient to assist the court in determining sentence.” Id. A(3). In Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), the Supreme Court, following the ABA Minimum Standards of Justice, held that such a pre-sentence report should contain, inter alia:

(B) a full description of any prior criminal record of the offender;

Id., 466 Pa. at 134 n. 26, 351 A.2d at 658 n. 26.

Here, the appellant has alleged that his present conviction will affect his criminal record, his employment status, his family relationships, and that he will suffer serious criminal consequences if he is subsequently convicted of another crime. As in Sibron, moreover, the authorization for use of appellant’s conviction to impeach his character at a subsequent criminal or civil proceeding is a legal disability which is sufficient to preclude his P.C.H.A. petition from being dismissed as moot.

Because appellant’s P.C.H.A. petition is not moot, we reverse and remand for an evidentiary hearing on the merits of appellant’s P.C.H.A. petition.

      . The Commonwealth argues that Markley waived his right to pursue P.C.H.A. relief by failing to file a timely appeal from the Court's denial of his pro se P.C.H.A. petition. Brief for Appellee at 10. We find this argument unpersuasive. In order for an issue to be regarded as finally litigated within the meaning of the P.C.H.A., there must be a ruling on the merits of the issue. Commonwealth v. Nelson, 337 Pa.Super. 292, 299, 486 A.2d 1340, 1343 (1984); Commonwealth v. Jenkins, 316 Pa.Super. 167, 171, 462 A.2d 847, 849 (1983); 28 Standard Pennsylvania Practice 2d § 138.12 (1982). In the instant case, the P.C.H.A. court clearly did not dismiss Markley’s pro se P.C.H.A. petition on the merits, but merely denied it at that time because it was "premature.” Moreover, even if the P.C.H.A. court's order were to be considered a dismissal of Markley's pro se petition, the appellant’s apparent lack of counsel at the time of the court’s action would constitute an extraordinary circumstance precluding a waiver of his P.C.H.A. allegations. See: Commonwealth v. Hobson, 286 Pa.Super. 271, 274, 428 A.2d 987, 989 (1981).

      . Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Street v. New York, 394 U.S. 576, 579 n. 3, 89 S.Ct. 1354 n. 3, 22 L.Ed.2d 572, 578 n. 3 (1969).

      . The "possible social or civil consequences” doctrine espoused in Commonwealth v. Rohde, stands in sharp contrast to traditional standards employed in Pennsylvania for determining standing and mootness. See: Franklin Township v. Department of Environmental Resources, 499 Pa. 162, 165-166, 452 A.2d 718, 719 (1982) (re standing; a party must have a substantial interest in the subject matter of the litigation, and that interest must be direct, immediate, and not a remote consequence); Silver v. Zoning Board of Adjustment, 381 Pa. 41, 46, 112 A.2d 84, 87 (1955) (re mootness; the court should not render advisory decisions on hypothetical facts).

      . The United States Supreme Court has recently announced that the collateral consequences doctrine espoused in Sibron is alive and well. See: Evitts v. Lucey, —- U.S.-,- n. 4, 105 S.Ct. 830, 833 n. 4, 83 L.Ed.2d 821 (1985). Nonetheless, several Courts of Appeals have attempted to limit the broad scope of this doctrine. See, e.g., Brough-

        ton v. State of North Carolina, 717 F.2d 147, 148-149 n. 3 (4th Cir.1983) (reputational interests are not sufficient to avoid mootness doctrine); Malloy v. Purvis, 681 F.2d 736, 738-740 (11th Cir.1982), cert, denied, 460 U.S. 1071, 103 S.Ct. 1527, 75 L.Ed.2d 949 (1983) (conviction alone is not sufficient to avoid mootness doctrine).


author: MONTEMURO, Judge:

text:
    501 A.2d 1143
    COMMONWEALTH of Pennsylvania v. Joseph C. WALKER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 27, 1985.
    Filed Dec. 6, 1985.

      W. Penn Hackney, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

      Before MONTEMURO, ROBERTS and BLOOM, JJ.

       Judge Louis A. Bloom, Senior Judge, of the Court of Common Pleas, of Delaware County, Pennsylvania, is sitting by designation.

   MONTEMURO, Judge:

This appeal challenges, in the context of ineffectiveness of trial counsel, the constitutionality of the Mandatory Minimum Sentencing Act [Act], 42 Pa.C.S. § 9712, and requests a reversal of conviction or a remand to conduct an evidentiary hearing on other claims of ineffective assistance of trial counsel. We find appellant was not in any respect denied effective assistance of trial counsel. Accordingly, we affirm the conviction on separate counts of robbery, and on a weapons charge.

Following a guilty verdict on charges of robbery, 18 Pa.C.S. § 3701(a)(l)(ii), and carrying a concealed firearm without a license, 18 Pa.C.S. § 6106, in connection with incidents at the Concord Liberty Savings and Loan in Pittsburgh, Pennsylvania, the jury determined by way of special interrogatory that appellant visibly possessed a firearm during the robbery; Upon the jury’s finding of guilt, appellant pleaded guilty to another robbery at the South Pittsburgh Savings and Loan. Post-verdict motions were denied, and appellant was sentenced as follows:

Robbery (South Pittsburgh): three (3) to ten (10) years imprisonment;
Robbery (Concord Liberty): Five (5) to ten (10) years imprisonment in accordance with Section 9712 of the Act to run concurrently with the sentence above;
Firearms violation: Suspended.

In determining whether trial counsel was ineffective we must first consider whether there is arguable merit to the claim. Commonwealth v. Broadwater, 330 Pa.Super. 234, 240, 479 A.2d 526, 529 (1984). Trial counsel will not be deemed ineffective for failure to raise a frivolous issue or to advance a baseless claim. Commonwealth v. Silvis, 307 Pa.Super. 75, 77, 452 A.2d 1045, 1046 (1982). If we determine the claim has arguable merit, we must then decide whether the course of action chosen by trial counsel had some reasonable basis designed to effectuate appellant’s best interests. Commonwealth ex rel. Washington v. Ma-roney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Finally, should we find arguable merit, and should we find no reasonable basis calculated to effectuate appellant’s best interests, before we may grant appellant relief, we must also find appellant was prejudiced by the action taken. Commonwealth v. Clemmons, 505 Pa. 356, 362, 479 A.2d 955, 958 (1984).

Initially, we note appellant has satisfied the procedural requirement that ineffectiveness of trial counsel must be raised in the first proceeding in which appellant is represented by counsel other than the one whose stewardship is challenged. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Reidenbaugh, 282 Pa. Super. 300, 305-6, 422 A.2d 1126, 1129 (1980), citing Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).

Appellant first argues the ineffectiveness of his trial counsel by contending counsel should have pursued four constitutional challenges to section 9712, viz. : (1) it violates due process by allowing the sentencing court, using the standard of a preponderance of the evidence, to determine an “element of the crime”, i.e., visible possession of a firearm, rather than reserving that decision for the trier of fact pursuant to the “beyond a reasonable doubt” standard; (2) it denies appellant his right to a jury trial on an “essential element” of the crime with which he was charged, again the visible possession of a firearm; (3) it denies appellant his due process rights by permitting the Commonwealth to wait until after conviction to inform him of the nature of the crime with which he was charged; and (4) it unconstitutionally gives the prosecution unbridled discretion to decide when to apply the mandatory sentence, thereby violating due process and the separation of powers doctrine.

Appellant’s first constitutional challenge has been decisively rejected by the Pennsylvania Supreme Court in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), cert, granted sub nom. McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 58, 88 L.Ed.2d 47, (1985). Likewise, the Wright court flatly rejected appellant's fourth argument relating to the “unbridled discretion” placed in the hands of the prosecution. Wright, supra, 508 Pa. at 40 n. 4, 494 A.2d at 361 n. 4. As to the appellant’s argument that he was denied his right to jury determination of visible possession of a firearm, appellant admits, as he must, that the jury did in fact determine the issue by means of a special interrogatory. His real complaint centers on the standard used in that determination, i.e., preponderance of the evidence. That complaint in turn hinges on his contention that visible possession of a firearm is an element of the crime with which he was charged. As this claim was rejected by the court in Wright, we find no merit to the argument. Finally, the notice argument has been clearly rejected by our recent decision in Commonwealth v. Cofoni, 349 Pa.Super. —, 503 A.2d 431 (1985). Finding all four of appellant’s constitutional attacks on section 9712 to be meritless, we decline to find his trial counsel ineffective for failing to pursue them. Silvis, supra.

Appellant next argues trial counsel was ineffective for failing to file a motion to dismiss the case, citing the Commonwealth’s violation of the speedy trial requirement of Pa.R.Crim.P. 1100(a)(2). The record reveals that 103 days elapsed between the date of appellant’s arrest, August 26, 1982, and the date he entered his guilty plea, December 8, 1982. However, appellant subsequently filed a motion to withdraw his guilty plea which was granted by the court below on February 3, 1983; appellant was eventually tried on May 10, 1983. Appellant argues that the February 3rd withdrawal of his guilty plea triggered anew the 180 day time limit under Pa.R.Crim.P. 1100(a)(2). He further argues that the 95 days between February 3 and May 10, when added to the 103 days between his arrest and initial guilty plea, represents a total of 198 non-excludable days which passed between the filing of the complaint and the trial. Appellant concludes that since no motion was filed by trial counsel to dismiss the informations because of the Commonwealth’s failure to bring appellant to trial within 180 days, appellant was denied effective assistance of trial counsel. We disagree.

Appellant’s Rule 1100 argument is settled by our en banc decision in Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982). In Lewis, this court stated “that a withdrawal of a previously accepted plea of guilty was equivalent to the granting of a new trial, after which the Commonwealth was charged to bring the defendant to trial within 120 days.” Id., 295 Pa.Superior Ct. at 66, 440 A.2d at 1225. See also Commonwealth v. Bytheway, 290 Pa.Super. 148, 152, 434 A.2d 173, 175 (1981).

Appellant’s motion to withdraw his guilty plea was granted February 3, 1983; as a result the Commonwealth had 120 days within which to commence a new trial. Appellant’s case was called to trial on May 10, 1983, well within the 120 day limit. Since counsel is not obligated to pursue frivolous or baseless claims, we find no ineffectiveness in counsel’s failure to raise a motion to dismiss the informa-tions on Rule 1100 grounds.

Appellant next argues there was no reasonable explanation for trial counsel’s decision to allow appellant to take the stand and confess to the robbery and possession of a firearm. (N.T. May 10, 1983, at 37-40). Appellant claims the decision was per se ineffectiveness.

Our independent review of the record fails to indicate that appellant’s taking the stand was anything but his own decision. In Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981), our supreme court stated:

Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This court will no longer consider claims of ineffective assistance of counsel in the abstract.

Id., 492 Pa. at 563, 424 A.2d at 1335. In the instant case, appellant fails to support his claim with specific facts. Nowhere does the record show appellant’s desire not to take the stand. Other than simply stating that trial counsel put him on the stand, appellant offers no shred of evidence from which an inference could be drawn that his testimony was involuntary. Furthermore, given the weight of the evidence against the appellant, including the on-the-spot identifications and trial court testimony by the bank teller and bank manager, the photograph taken by the bank surveillance camera, and the testimony of the arresting officer and assisting officer, it was not unreasonable to conclude that appellant’s only chance of acquittal would be to testify in his own defense. Cf. Commonwealth v. Johnson, 490 Pa. 312, 416 A.2d 485 (1980) (Given the strength of Commonwealth’s case, defense counsel properly advised appellant to testify at trial.) Accordingly, we find no merit to appellant’s contention that he was somehow coerced into taking the stand.

Because appellant raises several claims of ineffective assistance of counsel in defending appellant in connection with the robbery of the Concord Liberty Savings and Loan, the following facts, as determined at trial, are significant for our review: On August 26, 1982, appellant entered Concord Liberty Savings and Loan, and, while displaying a gun, demanded cash from the bank teller. The teller handed appellant $382. Upon receiving the cash, appellant placed the money into a shaving kit and fled. The bank manager, who witnessed the robbery, pursued appellant to a parking garage. The manager then sought the assistance of a police officer who joined in the search. As the search continued, appellant emerged from the parking garage and was identified by the bank manager. The police officer approached appellant and requested appellant’s identification. When appellant refused, the officer questioned him about the contents of the shaving kit. After further resistance by appellant, he was placed under arrest.

The officer testified that although he did not have the opportunity to look in the bag, he felt what he thought was a gun. As appellant remained handcuffed, two additional officers arrived, removed the shaving kit from appellant’s possession, and upon their immediate search of the kit, discovered cash and an automatic weapon. The officers returned appellant to the bank, where he was immediately identified by the bank teller.

Appellant next contends he was denied effective assistance of trial counsel due to counsel’s failure to file a motion for suppression of the evidence seized at the time of arrest. The resolution of that claim is dependent upon the legality of the arrest. Were we to find the arrest to be illegal, we would be required to suppress all evidence incident to the arrest, unless the Commonwealth was able to establish that “the evidence is sufficiently purged of any taint from the illegal arrest.” Commonwealth v. Farley, 468 Pa. 487, 494, 364 A.2d 299, 302 (1976), citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973); Pa. Const. Art. I, § 8. Accordingly, we address the legality of the arrest.

The arrest of appellant was made without a warrant. In order for a police officer to make a valid warrantless arrest, probable cause must exist. Commonwealth v. Stokes, 480 Pa. 38, 43, 389 A.2d 74, 76 (1978). Probable cause is established when all facts and information within the officer’s knowledge are sufficient to allow a person of reasonable suspicion to believe that a crime is being committed or has been committed, and that the arrestee is the perpetrator. Commonwealth v. Travaglia, 502 Pa. 474, 484, 467 A.2d 288, 292 (1983); Stokes, supra; Commonwealth v. Johnson, 467 Pa. 146, 153, 354 A.2d 886, 889 (1976); Commonwealth v. Jeffries, 454 Pa. 320, 323, 311 A.2d 914, 916 (1973).

Regarding the arresting officer’s belief that a crime has been or is being committed, the belief need not be based upon the officer’s direct, personal knowledge of facts and circumstances. The belief may, instead, rest solely upon facts and information supplied by another person, so long as there is a “substantial basis” for trusting the source and credibility of the information. Stokes, supra, 480 Pa. at 44, 389 A.2d at 76, citing United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Our supreme court has recognized certain classes of persons whose information may be deemed sufficient to establish probable cause. See Stokes, supra 480 Pa. at 44, 389 A.2d at 77. It is sufficient for our purposes to note that the statement of a victim identifying the perpetrator of the crime, and information supplied by an eyewitness, have been recognized as substantial bases upon which probable cause may be established. See Commonwealth v. Irving, 485 Pa. 596, 403 A.2d 549 (1979); Commonwealth v. Hall, 456 Pa. 243, 317 A.2d 891 (1974); Commonwealth v. Evans, 305 Pa.Super. 450, 451 A.2d 734 (1982).

In the instant case, the arresting officer relied upon information supplied by the bank manager who arguably is both a victim and a witness. The immediacy of the manager’s pursuit of appellant, request for assistance of the officer, and on-the-spot identification, were sufficient to establish probable cause for arrest. As a result of the existence of probable cause, a warrant was not required, and the arrest was valid. Thus, appellant was not denied effective assistance of trial counsel due to counsel’s failure to litigate the validity of appellant’s arrest.

Appellant further argues that even if the arrest is found to be legal there is no excuse for the failure of police to obtain a search warrant for the shaving kit. We disagree.

Incident to a lawful arrest, a police officer may conduct a warrantless search of the arrestee’s person and of the area within the immediate control of the arrestee. The warrantless search acts to protect the arresting officer from weapons the arrestee may have access to, and prevents the destruction or concealment of evidence. Commonwealth v. Timko, 491 Pa. 32, 37, 417 A.2d 620, 622 (1980); Commonwealth v. Long, 489 Pa. 369, 374, 414 A.2d 113, 115 (1980); Commonwealth v. Zock, 308 Pa.Super. 89, 93, 454 A.2d 35, 37 (1982), appeal dismissed 502 Pa. 164, 465 A.2d 641 (1983). In Timko, our supreme court recognized that “absent exigent circumstances, a warrantless search of luggage or other personal property in which a person has a reasonable expectation of privacy is not permissible.” Timko, supra 491 Pa. at 37-8, 417 A.2d at 623. While we agree, as we must, with that statement of the law, we are convinced that the application of that law mandates our approval of the search of the shaving kit.

We find that in the case sub judice there were exigent circumstances present, and appellant cannot be said to have had a reasonable expectation of privacy in his shaving kit. As stated above, during the struggle in which the arresting officer attempted to gain control of the shaving kit, the officer testified that he felt what he thought was a gun. We find the suspicion of the gun provides ample justification to permit the search of the shaving kit as necessary to protect the safety of the officers. The United States Supreme Court has recognized several instances in which exigent circumstances existed where the presence of a weapon was suspected. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); see Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (police had reason to suspect automobile trunk contained a weapon); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (officers had reason to believe suitcase contained a weapon).

In Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972), defendant was arrested based on probable cause that he had committed murder. Suspecting proof of the crime would be found in an overnight bag defendant was holding, an officer requested the bag. Following defendant’s refusal to give up the bag, a struggle ensued, although the officers finally gained control of the bag. Visible in the partially unzipped bag was the handle of a revolver. The officer immediately searched the bag which revealed a revolver, among other items. On appeal, our supreme court unanimously upheld the validity of the search. Sharpe is determinative here. In the instant case, the arresting officer felt what he thought was a gun. Given a police officer’s first hand knowledge of guns, feeling a gun is sufficiently parallel to viewing the handle of a gun as in Sharpe.

We are further inclined to analogize a shaving kit to a purse, the search of which the courts have overwhelmingly allowed. See United States v. Venizelos, 495 F.Supp. 1277 (S.D.N.Y.1980) (purse considered personal property immediately associated with the person); Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980) (purses generally serve same function as pockets); State v. Sabater, 3 Kan.App.2d 692, 601 P.2d 11 (1979) (purse involved no greater reduction in expectation of privacy than that caused by arrest itself); State v. Horton, 44 N.C.App. 343, 260 S.E.2d 780 (1979) (officer can search purse for his own protection). The shaving kit was immediately associated with appellant. Given its wide range of uses, it may serve the same general function as a purse, holds no greater expectation of privacy than a purse, and may cause the same threat to an officer, when it contains a gun, as does a purse. Accordingly, we find the warrantless search of the shaving kit was valid, and find no arguable merit to appellant’s claim of ineffectiveness on this point.

Appellant further argues he was denied effective assistance of trial counsel due to trial counsel’s failure to object to the suggestiveness of the pre-trial identification and his failure to file a motion to suppress all identification testimony. We disagree.

The identifications made by the bank manager prior to appellant’s arrest and by the bank teller after the arrest were made on-the-spot and therefore were properly admissible. Commonwealth v. O’Neal, 321 Pa.Super. 323, 328, 468 A.2d 500, 503 (1983), citing Commonwealth v. Turner, 454 Pa. 520, 314 A.2d 496 (1974); Commonwealth v. Aaron, 255 Pa.Super. 289, 386 A.2d 1006 (1978); Commonwealth v. Santiago, 229 Pa.Super. 74, 323 A.2d 826 (1974). As our supreme court stated in Commonwealth v. Mackey, 447 Pa. 32, 288 A.2d 778 (1972):

The primary reason for the admissibility of such confrontations is that the close proximity in time and place to the actual offense so enhances the reliability as to outweigh the prejudice.

Id., 447 Pa. at 36, 288 A.2d at 780. If counsel were to make a motion to suppress evidence that was legally admissible at trial, the motion for suppression would be groundless. Thus, counsel’s failure to file the motion did not deny appellant effective assistance of trial counsel. Silvis, supra 307 Pa.Super. at 77, 452 A.2d at 1046.

Appellant next argues that trial counsel failed to object to the suggestiveness of the bank teller’s pre-trial identification of appellant and to the teller’s in-court identification. Appellant claims the in-court identification was without a basis sufficiently independent of the suggestive pre-trial identification. We disagree.

In Commonwealth v. Johnson, 291 Pa.Super. 566, 436 A.2d 645 (1981), this court stated that in the absence of some element of unfairness, a prompt on-the-spot identification of a suspect by an eyewitness (or victim) is not imper-missibly suggestive. Johnson, supra, 291 Pa.Superior Ct. at 579, 436 A.2d at 652, citing Turner, supra.

The bank teller’s (victim-witness) prompt in-custody on-the-scene identification of appellant took place within ten to fifteen minutes after the robbery. There is no indication the police informed the teller that appellant was the robber. Appellant was simply brought into the bank and identified by the teller. Under these circumstances, the in-custody on-the-scene identification was not unduly suggestive. Furthermore, even if we were to find the pre-trial identification to be unduly suggestive, there was sufficient independent basis for the teller’s in-court identification given the fact she stood face-to-face with appellant during the robbery.

In light of the facts as stated above, we find that trial counsel had no basis upon which to object to the suggestiveness of the pre-trial identification or to the admission of identification testimony. Accordingly, we find no merit to appellant’s claim of ineffectiveness on the identification grounds.

Appellant’s next claim of ineffectiveness maintains trial counsel failed to object to improper and prejudicial remarks made by the prosecutor during his closing argument.

Because appellant does not comment any further in support of his claim, we decline further consideration of the claim. Pettus, supra 492 Pa. at 563, 424 A.2d at 1335.

Finally, appellant claims trial counsel was ineffective in permitting appellant to plead guilty to the robbery of the South Pittsburgh Savings and Loan without litigating the admissibility of appellant’s confession and the identification evidence.

Our review of the guilty plea colloquy (N.T. May 10, 1983, at 61-67) indicates appellant fully understood the proceedings and did not claim at any time that the plea was not of his own volition. Appellant further stated he was satisfied with the representation afforded by trial counsel, and did not challenge the statement of evidence given by the Commonwealth prior to the court’s acceptance of appellant’s plea. Furthermore, the Commonwealth was ready to present the bank teller as a witness who would testify that appellant committed the robbery, and a police officer as a witness who would testify that appellant confessed to the robbery. In light of the evidence there was a reasonable basis for counsel to allow appellant to plead guilty, namely, avoiding a potentially more severe sentence. See Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978); Commonwealth v. Cofield, 310 Pa.Super. 356, 456 A.2d 650 (1983). We find no ineffectiveness.

From all the foregoing, we affirm judgment of sentence.

      . Pa.R.Crim.P. 1100(a)(2) provides that:
      Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.


author: FEENEY, Judge:

text:
    501 A.2d 1150
    CARSON CONSUMER DISCOUNT COMPANY OF NEW CASTLE, Appellant, v. Steve W. STUBLE and Jodi L. Stuble, His Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed Dec. 13, 1985.

      John F. Murphy, Wilkes-Barre, for appellant.
    Before BROSKY, ROWLEY and FEENEY, JJ.

       Judge John M. Feeney, of the Court of Common Pleas of Allegheny County, Pennsylvania, is sitting by designation.

   FEENEY, Judge:

This is an appeal from an order dismissing the exceptions of appellant, Carson Consumer Discount Company of New Castle, to the proposed distribution of proceeds from the sheriff’s sale of appellees’ real estate. Metropolitan Federal Savings and Loan Assoc. v. Bailey, 244 Pa.Superior Ct. 452, 368 A.2d 808 (1976).

The issue presented in this appeal is whether the lower court erred in concluding that the sheriff had properly included as costs in the proposed schedule of distribution, a lien in the amount of $5000.

The factual and procedural background of this case as established by the record reveals that on June 23, 1978, the Pennsylvania Department of Public Welfare (DPW) recorded a lien in the amount of $5000.00 against the real estate of appellees, Steve W. Stuble and Jodi L. Stuble, at 616 North Liberty Street, New Castle, Lawrence County, Pennsylvania. On September 17, 1980, appellant recorded a mortgage against the same property. Appellant thereafter commenced an action in mortgage foreclosure against ap-pellees on July 12, 1983, which was reduced to judgment on August 12, 1983. A writ of execution was issued and the sheriff’s sale which forms the basis of this appeal was held on November 15, 1983. Appellant was the sole participant at the sheriff’s sale and made a bid of costs (N.T. 12-6-83, 7). In the proposed schedule of distribution of November 22, 1983, the sheriff included as costs of the sale the amount of the DPW lien. Appellant filed a timely objection to the inclusion of the $5000.00 lien amount in the sheriffs proposed schedule on the basis that the DPW lien had been discharged. Following a hearing on December 6, 1983, the lower court dismissed appellant’s exceptions to the proposed distribution by order of February 7, 1984. This appeal was then timely filed.

As this Court recognized in Commonwealth, Department of Public Welfare v. Andrews, 338 Pa.Super. 211, 487 A.2d 929 (1985), it is a general rule of law that liens upon real estate, whether prior or subsequent, including any lien on which the sale is made, are divested by judicial sale unless specifically preserved by statute or because of the peculiar character of the lien or encumberance.

In disposing of appellant’s objections, the lower court determined that DPW was a governmental unit of the Commonwealth whose prior lien was not subject to divestiture since there exists no statutory language permitting elimination of its interests. The lower court relied upon Commonwealth, Department of Transportation v. J.W. Bishop Co., Inc., 497 Pa. 58, 439 A.2d 101 (1981). In Bishop, a trespass case involving applicability of statutes of limitation to actions brought by the Commonwealth, the Pennsylvania Supreme Court (per Chief Justice, then Justice, Roberts) adhered to the doctrine of nullum tempus holding that statutes which in general terms divest pre-ex-isting rights or privileges do not bind the sovereign without express words to that effect. Id., 497 Pa. at 61-62, 439 A.2d at 102.

The lower court has failed, however, to take cognizance of Commonwealth v. Udzienicz, 353 Pa. 543, 46 A.2d 231 (1946), in which the Supreme Court held that a judgment lien in favor of the state for old age assistance benefits was created by contract and that the question of whether the lien was extinguished by tax sale did not depend upon attributes of sovereignty since the Commonwealth by the contract voluntarily surrendered such attributes. As in Udzienicz and Andrews, which like the matter sub judice involved DPW liens, “[t]he question of sovereign right is not involved in the instant case. This judgment lien was created by a contract of the parties; none of the attributes of sovereignty entered into it because the state voluntarily gave them up.” Udzienicz, supra, 353 Pa. at 546, 46 A.2d at 232; Andrews, supra, 338 Pa.Super. at 215, 487 A.2d at 931. Consequently, we find that the lower court erred in determining that the lien of DPW in the amount of $5000 was includable as costs in the sheriffs proposed schedule of distribution and improperly dismissed appellant’s exceptions.

Order Reversed, Case Remanded and Jurisdiction Relinquished.

      . Nullum tempus occurrit regi ("time does not run against the king”).

      . DPW, improperly denominating itself "Additional Appellee,” has filed a brief in connection with this appeal requesting relief for the first time in this appeal. Although we may consider the brief of DPW pursuant to Pa.R.A.P. 531(a) ("Anyone interested in questions involved in any matter pending in an appellate court, although not a party, may, without applying for leave to do so, file a brief amicus curiae in regard to those questions”), our review of the record discloses that DPW was not a party to this action in the lower court and did not take any action below to obtain relief. DPW cannot make itself a party to this case by the action of filing a brief with this Court. Pa.R.A.P. 908.