author: KELLY, Judge:

text:
    574 A.2d 641
    VALLEY FORGE TOWERS SOUTH CONDOMINIUM, Appellant, v. RON-IKE FOAM INSULATORS, INC. Mameco International, Inc., Appellee.
    Superior Court of Pennsylvania.
    Argued June 22, 1989.
    Filed May 1, 1990.

      Jeffrey B. Herman, Broomall, for appellant.
    Adrienne Provenzano, Philadelphia, for appellee.
    Before McEWEN, KELLY and POPOVICH, JJ.
   KELLY, Judge:

In this appeal we are called upon to determine whether a cause of action by a residential condominium association against roofing membrane manufacturer exists under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (Pa.U.T.P.C.P.L.) when the roofing membrane was sold by the manufacturer to a contractor for the reroofing of the condominium association’s building, the roof warranty was issued directly to the residential condominium association by the manufacturer, and the warranty on the roofing membrane subsequently was not honored by the manufacturer. The trial court found that no cause of action existed. We reverse.

FACTS AND PROCEDURAL HISTORY

The relevant facts and procedural history are as follows. The appellant, Valley Forge Towers South Condominium (the Condominium Association), which is an incorporated non-profit condominium association, entered into a contract with Ron-Ike Inc. (Ron-Ike) pursuant to its statutory authorization to act as representative of the individual condominium unit owners. See 68 Pa.C.S.A. § 3302(a)(5). In the contract, Ron-Ike specified that it would install a roofing membrane manufactured by the appellee, Mameco International Incorporated (Mameco), and that after the completion of the roof Mameco would send the Condominium Association a warranty guaranteeing the membrane for 10 years. Ron-Ike completed the roof in late 1984, and Mameco subsequently issued a 10-year warranty directly to the Condominium Association.

Two years later, the roof began to leak. The Condominium Association immediately notified both Ron-Ike and Mameco of the leaky roof, and requested that both parties honor their respective warranties and repair the roof. The Condominium Association asserts that Ron-Ike made one attempt to repair the leaky roof, but was unsuccessful; and that after that unsuccessful attempt, neither Ron-Ike nor Mameco would respond to the association’s further requests that they repair the roof. The Condominium Association further asserts that it then proceeded to replace the roof at a cost of $408,000.

The Condominium Association, again acting as the legally authorized representative of the unit owners (68 Pa.C.S.A. § 3302(a)(4)), then commenced the instant litigation against both Ron-Ike and Mameco setting forth the following causes of action against both corporations: breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, and a private cause of action under 73 P.S. § 201-9.2 of the Pa.U.T.P.C.P.L. (which grants trial courts discretion to award treble damages on proof of an unlawful, unfair or deceptive practice as defined by the statute, including failure to honor a written warranty, 73 P.S. § 201-2(4)(xiv)).

Mameco filed preliminary objections in the nature of a demurrer which asserted that the Condominium Association was not a “purchaser” from Mameco under the Pa.U.T.P.C. P.L.; and even if it was, the purchase of the replacement roof was not for “personal, family, or household use” within the meaning of those terms as used in the Pa.U.P.T.C.P.L. Mameco reasoned that its demurrer should be sustained on both grounds, as proof of those facts were essential in setting forth a private action for treble damages under the Pa.U.T.P.C.P.L. The Condominium Association responded that it had pled sufficient facts to present a claim that it was a “person,” who “purchased” a replacement roof, “primarily for personal, family, or household use,” within the meaning of those terms as used in the Pa.U.T.P.C.P.L.

The trial court sustained the demurrer. In doing so, it found that there was a lack of privity between the Condominium Association and Mameco; and therefore, the condominium association was not a “purchaser” from Mameco for the purposes of the Pa.U.T.P.C.P.L. The trial court found, alternatively, that the Condominium Association purchased the replacement roof in furtherance of its business purpose of managing a residential condominium complex, and that such a purchase was not “primarily for personal, family,, or household purposes” as required to fall within the ambit of 73 P.S. § 201-9.2 of the Pa.U.T.P.C.P.L. This timely appeal followed.

I. JURISDICTION

In its Pa.R.A.P. 1925(a) opinion the trial court opined that the dismissal of the Pa.U.T.P.C.P.L. count against Mameco was an unappealable interlocutory order. The trial court characterized this count as merely a different theory of recovery against Mameco on its breach of warranty claim against Mameco. Trial Court Opinion at 2.

The trial court cited Cloverleaf Development Inc. v. Horizon Financial FA, 347 Pa.Super. 75, 500 A.2d 163 (1985), in support of the general proposition that an order dismissing separate counts which merely assert alternate theories of recovery on a surviving cause of action, rather than dismissing a separate cause of action, is interlocutory and unappealable. So far, we agree. The trial court then proceeded to find that an action under 73 P.S. § 201-9.2 merely states an alternate theory in support of the breach of warranty claims which survived. No authority was cited for this proposition.

To the contrary, however, this Court applying the test set forth in Cloverleaf Development, has twice held that a cause of action under the Pa.U.T.P.C.P.L. is separate and distinct from breach of contract causes of action arising from the same facts. See Gordon v. Pennsylvania Blue Shield, 378 Pa.Super. 256, 548 A.2d 600 (1988); Hardy v. Pennock Ins. Co., 365 Pa.Super. 206, 529 A.2d 471 (1987); cf. Neff v. Lasso, 382 Pa.Super. 487, 492 n. 2, 555 A.2d 1304, 1306 n. 2 (1989). Likewise, we find the instant cause of action under 73 P.S. § 201-9.2 to be separate from the three breach of warranty claims which survived. Hence, the appeal is properly before this Court for review.

II. STANDARD OF REVIEW

Our standard of review of an order granting preliminary objections in the nature of a demurrer is well-settled, and has been summarized as follows:

All material facts set forth in the pleadings as well as all inferences reasonably deducible therefrom are admitted as true for the limited purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. In reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court, nor are we bound by its conclusions of law. Furthermore, we will affirm the grant of such a motion only when the moving party’s right to succeed is certain and the case is so free from doubt that further proceedings would clearly be fruitless.

Ford Motor Credit Co. v. Caiazzo, 387 Pa.Super. 561, 566, 564 A.2d 931, 933 (1989) (collecting cases). Finally, “the novelty of a claim or theory, alone, does not compel affirmance.” Neff v. Lasso, supra, 555 A.2d at 1305.

III. Pa.U.T.P.C.P.L. GENERALLY

The legislative intent in enacting the Pa.U.T.P.C.P.L. was to enhance the protection of the public from unfair or deceptive business practices. Gabriel v. O’Hara, 368 Pa.Super. 383, 388 & n. 6, 534 A.2d 488, 491 & n. 6 (1987). The principle enhancements of pre-existing common law protections included the codification of a list of practices designated as “unfair or deceptive” and therefore “unlawful” (73 P.S. §§ 201-2, 201-3), authorization of the Pennsylvania Attorney General to take several specific types of action to protect the citizenry from such practices (73 P.S. §§ 201-3.1 to 201-9.1), and authorizing a private cause of action by private parties for treble damages in certain circumstances (73 P.S. § 201-9.2). The central underlying intent was fraud prevention, and the act must be construed liberally to effectuate that remedial intent. See Commonwealth v. Monumental Properties, 459 Pa. 450, 329 A.2d 812, 815-17 (1974); Gabriel v. O’Hara, supra, 534 A.2d at 491; Culbreth v. Lawrence Miller, Inc., 328 Pa.Super. 374, 477 A.2d 491 (1984).

In this case we are concerned with a private cause of action for treble damages under 73 P.S. § 201-9.2(a) which provides:

§ 201-9.2 Private Actions
(a) Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act, may bring a private action, to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper.

(Emphasis added). A claimant under this section must not only have suffered an ascertainable loss as the result of an “unfair or deceptive act,” but also must be: a “person,” who made a “purchase,” “primarily for personal, family, or household purposes.” Though the principal dispute here centers on the second and third requirements, we shall consider all three in resolving the question as to whether the trial court abused its discretion or committed an error of law in sustaining Mameco’s demurrer.

IV. “PERSON” UNDER THE Pa.U.T.P.C.P.L.

Neither Mameco nor the trial court questioned the Condominium Association’s status as a “person,” under the Pa.U.T.P.C.P.L. Nonetheless, as we find the Condominium Association’s status as a “person” relevant with regard to the third requirement (relating to the primary purpose of the purchase), we discuss this requirement briefly.

Under 73 P.S. § 201-2, the term “person” (as used in 73 P.S. § 201-9.2) is defined as follows:

(2) “Person” means natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entities.

73 P.S. § 201-2(2). (Emphasis added). Incorporated associations fall squarely within the express definition of the term “person” as used in 73 P.S. § 201-9.2.

The Condominium Association involved here is an incorporated non-profit condominium association organized pursuant to 68 Pa.C.S.A. § 3301 et seq. As such, it was empowered to act in a representative capacity on behalf of its constituent unit owners to sue, enter into contracts, and to regulate the maintenance, repair, and replacement of common elements of the condominium building, including its roof. 68 Pa.C.S.A. §§ 3302(a)(4-7).

In 1000 Grandview Association v. Mt. Washington Association, 290 Pa.Super. 365, 434 A.2d 796 (1981), this Court held that even in absence of express legislative authorization for an incorporated association of condominium unit owners to sue in a representative capacity on behalf of unit members, representative standing would nonetheless be recognized generally. 434 A.2d at 797-98. In that case, we noted the repeal of the Unit Property Act and the adoption of the Uniform Condominium Act which removed any lingering doubt on the issue of representative standing in future cases (such as the instant case) by expressly authorizing condominium associations sue on behalf of the unit owners.

The Condominium Association was a “person” under the Pa.U.T.P.C.P.L.

V. “PURCHASE” UNDER THE Pa.U.T.P.C.P.L.

The most vexing problem presented by this appeal is whether the absence of technical privity between the Condominium Association and Mameco precludes liability under 73 P.S. § 201-9.2. We find that the Condominium Association was a “purchaser” under the act, and that the absence of privity did not preclude liability on Mameco’s part for injuries to the Condominium Association under the Act.

Careful review of the statute reveals that it is silent on the significance of privity. While a claimant under 73 P.S. § 201-9.2 must be a person who makes a purchase for personal, family or household purposes, who suffers an ascertainable loss as the result of an unlawful, unfair or deceptive practice, there is no express requirement that there be strict technical privity between the party suing and the party sued. Whether or not strict technical privity should be deemed to be an implied requirement for a cause of action under the act is therefore a matter of statutory construction. 1 Pa.C.S.A. § 1921(c).

In resolving this question of legislative intent, it is necessary first to consider the occasion and necessity for the statute, the circumstances under which it was enacted, the mischief to be remedied, the object to be attained, and the former law. Essentially, we must consider the historical context of the enactment. Succinctly, the law was passed to substantially enhance the remedies available to consumers as the result of unfair or deceptive business practices, specifically including the failure to comply with any written guarantee or warranty. Gabriel v. O’Hara, supra, 534 A.2d at 491 & n. 6; see also 73 P.S. § 201-2(4)(xiv). This underlying legislative intent weighs heavily against implying a restrictive requirement which would hinder the act’s remedical effects, or provide a simple expedient for evasion of its force.

Next, we consider the law which applies in analogous cases. In Woodward v. Dietrich, 378 Pa.Super. 111, 548 A.2d 301 (1988), this Court traced the erosion of the privity defense in actions for fraud and deceit with particular emphasis on cases involving construction contracts. 548 A.2d at 308-16. We concluded that a contractor may be sued for fraud in absence of strict privity when the third party was “specifically intended” to rely upon the fraudulent conduct or when the reasonable reliance of a third party on the fraudulent conduct was “specially foreseeable.” 548 A.2d at 312-16. The latter situation involved an extension of the common law liability for fraud, and an erosion of common law privity concepts.

Under the facts pled here, Mameco’s liability for the Condominium Association’s reasonable reliance upon Mameco’s warranty would require no such erosion of common law privity concepts. Even under the early common law, a contractor was liable in tort for injuries to third parties who were specifically intended to rely upon the fraudulent assurances, notwithstanding an absence of privity. See Woodward v. Dietrich, supra, 548 A.2d at 311-12 (collecting cases).

In the instant case, it is alleged that Ron-Ike, the roof repair contractor, purchased the roofing material from Mameco in accordance with specifications in its contract with the Condominium Association that Mameco’s materials be used, and that Mameco issued its 10-year warranty directly to the Condominium Association. Accepting the facts pled as true, Mameco had unequivocal notice that the Condominium Association was the actual intended beneficiary of its warranty. Indeed, Mameco had issued its warranty directly to the Condominium Association. Hence, even under the early common law, privity would not have been necessary to sustain an action by the Condominium Association against Mameco for damages in tort asserting fraud. See Woodward v. Dietrich, supra, 548 A.2d at 312.

Moreover, as the materials were intended to become part of a fixture to realty, Mameco knew or should have known that its warranty would be relied upon by any subsequent purchasers or lessees of the condominium units covered by the roof it warranted. Cf. Woodward v. Dietrich, supra. Otherwise stated, the Condominium Association’s reasonable reliance was “specially foreseeable” even if it had not been “specifically intended.” Id., 548 A.2d at 315-16.

Pennsylvania courts have repeatedly stated that the Pa. U.T.P.C.P.L. is focused upon eradicating fraudulent business practices. Commonwealth v. Monumental Properties, supra; Gabriel v. O’Hara, supra; Culbreth v. Lawrence Miller, Inc., supra. Consequently, we find the case law regarding privity and fraud highly relevant in ascertaining the legislature’s probable intent with regard to privity and the cause of action authorized by our legislature via 73 P.S. § 201-9.2. This case law also weighs heavily against implying a strict technical privity requirement in the cause of action authorized by 73 P.S. § 201-9.2.

Finally, we consider the consequences of the alternate constructions suggested. If we imply a strict technical privity requirement, Mameco and others would be able to successfully evade liability for alleged failures to honor their long-term warranties based upon the simple expedient of supplying their product and their warranties to intended ultimate purchasers, through a general contractor. Disreputable businesses might set-up judgment proof, under-capitalized contractors for just that purpose; or they might deceive reputable contractors, leaving them to pay the judgment when the deception is discovered later. Such an exception could eviscerate the rule.

If, on the other hand, we instead follow the common law of fraud as it has developed in this Commonwealth, liability under 73 P.S. § 201-9.2 would extend to those in privity, those specifically intended to rely upon the fraudulent conduct, and those whose reasonable reliance was specially foreseeable. See Woodward v. Dietrich, supra. No injustice is apparent in such a construction. Consequently, we find the latter construction more consonant with the remedial focus of the Pa.U.T.P.C.P.L. on eradicating fraudulent business practices.

Based upon the foregoing, we conclude that strict technical privity was not intended by our legislature to be required to sustain a cause of action under 73 P.S. § 201-9.2. The statute is to be construed broadly to effectuate its generally intent to eradicate fraudulent business practices. Consequently, we decline to engraft a requirement of strict technical privity onto a silent statute, especially since no such restriction applies in fraud cases generally. Cf. Woodward v. Dietrich, supra.

Hence, we find that the Condominium Association’s purchase of the roof from Ron-Ike, which was warranted directly by Mameco, was a “purchase” giving rise to liability on the part of Mameco under the Pa.U.T.P.C.P.L. for failure of Mameco to honor its warranty, notwithstanding the absence of direct privity between Mameco and the Condominium Association.

VI. PRIMARILY FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES UNDER THE Pa.U.T.P.C.P.L.

The principal restriction placed upon the private cause of action for treble damages under the Pa.U.T.P.C. P.L. is that the purchase must be “primarily for personal, family or household purposes....” 73 P.S. § 201-9.2. Mameco argued, and the trial court agreed, that the Condominium Association was a business consumer, rather than a consumer for personal, family or household purposes. We cannot agree.

The primary purpose restriction of 73 P.S. § 201-9.2 has not been construed previously by the appellate courts of this Commonwealth. Consequently, on this issue of first impression, we turn initially to the federal district court decisions construing this portion of the act.

In a series of cases, federal district courts have construed the primary purpose restriction of 73 P.S. § 201-9.2 to preclude a cause of action by one business against another business for various types of unfair competition. See e.g. Merv Swing Agency, Inc. v. Graham Co., 579 F.Supp. 429 (E.D.Pa.1983) (disparagement of business); Zerpol Corp. v. DMP Corp., 561 F.Supp. 404 (E.D.Pa.1983) (commercial disparagement); Klitzner Industries v. HK James, Co., 535 F.Supp. 1249 (E.D.Pa.1982) (passing one’s goods off as another’s); Permagrain Products v. U.S. Mat & Rubber, Co., 489 F.Supp. 108 (E.D.Pa.1980) (same). In another case, a district court held that no cause of action could be presented under 73 P.S. § 201-9.2, by the purchaser of a truck, when the lease and insurance papers conclusively established that the purchase was primarily for commercial purposes. Waldo v. North American Van Lines, 669 F.Supp. 722 (W.D.Pa.1987).

Those cases appear to correctly apply the primary purpose limitation to the facts presented. Unfortunately, those cases provide little, if any, guidance as to the proper application of the primary purpose limitation to the facts presented here.

Mameco argues that liability is precluded for two reasons: its roofing materials were not typical “consumer products,” and the Condominium Association was in the business of managing the condominium, and so was not a purchaser for personal, family, or household use. The trial court agreed with the latter argument. We agree with neither.

Mameco’s focus upon the type of product involved is misplaced. The restriction included in the act addresses itself solely to the purpose of the purchase, not the type of product purchased.

The following example illustrates this distinction. If a laundry business were to purchase a home-use model, department store dryer for the primary purpose of drying clothes for the laundry business, such a purchase would be primarily for a business purpose, despite the fact that the dryer may have been a typical “consumer product.” On the other hand, if the parents of twelve growing children purchased an industrial washer and dryer from a business supplier to be used primarily to do the family’s laundry, the purchase would be primarily for a family purpose and come within the ambit of 73 P.S. § 201-9.2, notwithstanding the fact that industrial washers and dryers generally might not be considered typical “consumer products.”

In previous cases, the purchase or lease of a home, condominium, or apartment for residential purposes has been implicitly treated as being “primarily for personal, family, or household purposes” under the Pa.U.T.P.C.P.L.. See Commonwealth v. Monumental Properties, supra; Gabriel v. O’Hara, supra; 1000 Grandview Association v. Mt. Washington Association, supra. We can see no reason why, if a purchase or lease of the whole residential unit comes within the act, a contract regarding part of the unit (i.e. its roof) would not also be covered by the act.

That bricks, mortar, and roofing materials are not commonly characterized as “consumer products” is irrelevant. The purpose of the purchase, and not the type of product purchased, controls. When a roof is purchased to cover a residential unit, whether it is the first roof or a replacement roof, the roof purchased is being purchased “primarily for a personal, family, or household use,” i.e. as a necessary part of a personal, family, or household residence. Hence, we reject the “type of product” rationale asserted by Mameco for sustaining the demurrer.

Mameco argues further that the Condominium Association is in the business of managing the condominium building, and is therefore a business purchaser. The trial court agreed. We cannot.

The fundamental error in this reasoning is the characterization of the Condominium Association as being in the business of managing the condominium building. It is true that Pennsylvania law permits condominium associations to incorporate as a for-profit or as a non-profit corporation. See 68 Pa.C.S.A. § 3301. Regardless, such condominium associations act in a representative capacity on behalf of the unit owners when contracting, and when bringing suit. 68 Pa.C.S.A. § 3302; see also 1000 Grandview Association v. Mt. Washington, supra.

In 1000 Grandview Association v. Mt. Washington Association, supra, this Court held that a condominium association could represent individual unit owners who had purchased units for residential purposes by pursuing legal redress acting in a representative capacity on behalf of the . individual unit owners. Implicit in our recognition of the condominium association’s standing in that case was a conclusion that the representee’s residential use, rather than the condominium association’s putative business purpose of managing the condominium building, was the relevant purpose in applying the primary purpose restriction of 73 P.S. § 201-9.2. What was implicit there, we make explicit here. When a condominium association acts in its representative capacity on behalf of unit owners, it is the purpose of the unit owners’ purchases which controls for the purposes of the primary purpose restriction of 73 P.S. § 201-9.2.

According to the pleadings, the condominium building upon which the roof was placed here, was primarily used for personal, family, or household residential use by the unit owners and/or their lessees. While the record reveals that some of the units in the building were used for business purposes, neither the number of such units, nor the square footage involved, would provide a basis to conclude at this nascent stage in the proceedings that business rather than residential use predominated. We note in this regard, that because a leak-proof roof is ultimately essential to the structural integrity of the whole condominium building, it is the primary (preponderate) purpose (use) of the whole building, and not the most directly affected units which would control.

Hence, we conclude that, giving the Condominium Association the benefit of all facts pled and all favorable inferences reasonably derivable therefrom, the roof was purchased “primarily for personal, family, or household purposes” within the meaning of those words in the Pa.U.T.P.C.P.L.

CONCLUSION

Based upon the foregoing, we conclude that the order sustaining Mameco’s demurrer must be vacated, and that the Condominium Association’s cause of action against Mameco under 73 P.S. § 201-9.2 must be reinstated.

Order vacated. Case Remanded. Jurisdiction relinquished.

      . See 73 P.S. § 201-1 et séq.

      . In its brief to this Court, Mameco also claimed the order was interlocutory and unappealable at this juncture. Mameco, however, suggested that it was unappealable, not because it was duplicative of other claims against Mameco, but because the Pa.U.T.P.C.P.L. claim against Ron-Ike had not been dismissed. (Mameco’s Brief at 20). How the pendency of an identical cause of action against Ron-Ike would affect the appealability of the order dismissing the cause of action against Mameco was neither explained, nor supported with any case law. We reject that argument as meritless. We note that Cloverleaf Development, the only case cited by Mameco on this subject, in no way supports the novel argument asserted.

      . While we do not consider the distinction decisive, we note that here the Condominium Association was incorporated as a non -profit corporation. Thus, the "business” characterization of the Condominium Association is undermined even further.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    574 A.2d 649
    In re ESTATE OF John TEASCHENKO, Jr., Deceased. Appeal of John TEASCHENKO, Sr.
    Superior Court of Pennsylvania.
    Argued March 20, 1990.
    Filed May 2, 1990.

      Aaron M. Matte, Allentown, for appellant.
    Frank R. Cori, Orwigsburg, for Barbara Teaschenko, participating party.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

John Teaschenko, Sr., the decedent’s father, appeals the trial court’s order dismissing his petition to enjoin disbursements of insurance proceeds and granting a motion for compulsory nonsuit. The trial court found that the father failed to sustain his burden to prove forfeiture pursuant to 20 Pa.C.S.A. § 2106(b). The father asserts that he presented a prima facie case of forfeiture and argues that the trial court erred in taking judicial notice of the fact that the decedent’s mother did not have enough money to make financial contributions to his support. We find no error; accordingly, we affirm.

The parties were married in 1969. During the course of the marriage, the parties had three children, including the decedent, John Teaschenko, Jr. The parties separated in 1978 and divorced in 1979. The father retained custody of their three children, including the decedent. Apparently, there was never any formal court order regarding custody or visitation. N.T. 12/7/88 at 20.

The mother was unemployed at the time of the separation. From the. time of the divorce until after the decedent’s death, the mother was receiving the maximum possible public assistance, indicating that she had no other known source of income. N.T. 12/7/88 at 77. The amount of money she received was “[t]he minimum amount of money that two people ostensibly could live on in the Schuylkill County and the State of Pennsylvania.” N.T. 12/7/88 at 77.

The mother did not pay any child support to the father. The mother bought Christmas presents for decedent and occasionally bought him clothes. The mother did not visit decedent in the father’s home, because the father’s brother prohibited her from doing so. Despite this prohibition, the mother often parked in front of the father’s house to talk to the children. Decedent visited his mother once or twice a week, and she fed him and his friend snacks when they visited.

All of the above facts were elicited through testimony by the father’s witnesses in a non-jury trial. After the father rested, the mother made a motion in the nature of a demurrer, claiming that the father had failed to show any forfeiture under 20 Pa.C.S.A. § 2106(b). The trial court found that the father had not met his burden of proof because he did not show that the mother had the ability to pay support; consequently, the trial court granted the demurrer.

The father filed exceptions to the order granting the demurrer. Subsequently, the mother filed a motion to consider the demurrer a compulsory nonsuit. The trial court granted the motion, and the father filed additional exceptions. The trial court affirmed its decisions and denied all of the father’s exceptions. This appeal followed.

Initially, we must address a procedural issue. The father asserts that compulsory nonsuit was not appropriate in this case because the mother presented some evidence. We agree that a motion for compulsory nonsuit was inappropriate in this case, as was the motion for demurrer. The trial court should have either dismissed the father’s petition or entered judgment against the father. Nevertheless, we decline to reverse the judgment on this ground. The trial court’s order effectively terminated father’s action due to his failure to sustain his burden of proof. Accordingly, we will treat the trial court’s order as if it were an order dismissing the father’s petition. If we find that the father satisfied his burden of proof, then we must reverse the judgment of the trial court; otherwise, we must affirm.

The father argues that the trial court erred in granting the compulsory nonsuit because the father presented a prima facie case of forfeiture under 20 Pa.C.S.A. § 2106(b). We disagree; accordingly, we affirm the decision of the trial court.

The statute providing for forfeiture of a parent’s share of an intestate estate, 20 Pa.C.S.A. § 2106(b), was passed in 1984 and has not yet been addressed by any appellate court. That statute provides:

Any parent who, for one year or upwards previous to the death of the parent’s minor or dependent child, has willfully neglected or failed to perform any duty of support owed to the minor or dependent child or who, for one year, has willfully deserted the minor or dependent child shall have no right or interest under this chapter in the real or personal estate of the minor or dependent child.

The father’s petition was based on the failure to support provision of this statute, not the desertion provision.

The elements of a forfeiture based on failure to support are easily discerned from the plain language of the statute: (1) the decedent must be a minor or dependent child; (2) the parent must owe some duty of support to the decedent; (3) the parent must have failed to perform any duty of support for the decedent for at least a year prior to the decedent’s death; and (4) the parent’s failure must be willful. The petitioner must produce evidence of all of these elements to make a prima facie case of forfeiture.

Two aspects of the statute are noteworthy. First, the parent must have failed to perform “any” duty of support. A parent does not forfeit her interest in her child’s estate merely by failing to perform her duties fully; rather, the parent must completely fail to perform any duty of support before a court will find a forfeiture under this statute. Second, the parent must have “willfully” failed to perform any duty of support. At the very least, the term “willfully” implies that the parent is aware of the duty to support, has the capacity to perform that duty, and makes no attempt to do so.

In the present case, the father has not shown that the mother failed to perform “any” duty of support; nor has he shown that the mother’s shortcomings were willful. The father showed only that he was the primary provider; he did not negate the possibility that the mother also provided some support. Testimony provided by the father’s own witnesses shows that the mother gave decedent Christmas presents and provided meals and snacks for him and his friends when he visited. These actions constitute some support, albeit minimal. Furthermore, one of the father’s witnesses testified that the mother had an extremely limited ability to provide financial support. This witness stated that the mother received $232 per month in public assistance, that this amount indicates that she has no other known source of income, and that this amount is ostensibly the minimum necessary to support the mother and the son in her custody. This evidence of her inability to pay negates any finding of willfulness.

Even if the father had alleged forfeiture by desertion, we would affirm, as there is clearly no merit to such an allegation. By the father’s own testimony, the decedent visited his mother once or twice a week. N.T. 12/8/88 at 21. The father’s witnesses testified that the mother often stopped her car in front of the father’s house to see the children, N.T. 12/8/88 at 63, despite the fact that the father’s brother, who lived with him, prohibited her from coming into the house, N.T. 12/8/88 at 50-51.

The trial court correctly found that the father did not meet his burden of proof; accordingly, we affirm the decision of the trial court.

The father also argues that the trial court erred in taking “judicial notice” of the fact that $232 per month was not enough money to allow the mother to contribute substantially to decedent’s support. We find that the trial court did not err.

A court may take judicial notice of a fact which is so well known as to be incontestable. Keirs by Keirs v. Weber Nat. Stores, Inc., 352 Pa.Super. 111, 507 A.2d 406 (1986) (court may take judicial notice that the product in a products liability action is an ordinary baseball jacket). The cost of minimal subsistence is a matter within common knowledge. No testimony is needed to show that a person living on $232 per month cannot support herself and a son and then pay additional support for another son. The trial court did not err in taking judicial notice of such a basic fact of life.

Even if this matter were not so generally known, we would find no error. The trial court did not need to take judicial notice of this fact, because testimony in the record supported it. The father’s own witness stated that the mother received “the minimum amount of money that two people could ostensibly live on.” N.T. 12/8/88 at 77. Accordingly, the trial court’s “judicial notice” was supported by evidence in the record.

The father asserts that the mother may have had other sources of income and other means of support. If that is so, then the father had the burden of presenting such evidence. He failed to do so. The court took judicial notice of the inadequacy of the. mother’s financial means after the father rested his case. The father never requested an opportunity to reopen his case and present further evidence.

Instead, the father tried to shift the burden of proof to the mother. After the father rested, his counsel stated, “I think that at least we should be allowed to hear the rest of the casé and determine whether or not these gifts were made and what was done during this period of time.” N.T. 12/8/88 at 97, implying that the mother had some obligation to prove that she had supported the decedent. He also said, “I could see the Court’s making approval of this in [the mother’s] favor if we got to the point where the contributions show that there is nothing to support or she doesn’t make that, but we are not at that stage. I have shown that there is $232. We don’t know where that money went to or where her expenses are or if anyone else was living with her and also contributed to her income at the house. We don’t know any of those factors at this stage.” N.T. 12/8/88 at 99, implying that the mother had an obligation to prove the inadequacy of her financial means. The petitioner has the burden of proof in these matters, and he cannot meet that burden by simply waiting for the respondent to prove his case.

We find no error in the trial court’s holding.

Order affirmed.

      . The mother had custody of a son from a previous marriage.


author: TAMILIA, Judge: KELLY, Judge, MONTEMURO, Judge,

text:
    574 A.2d 653
    COMMONWEALTH of Pennsylvania, Appellant, v. Edward DORIA.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1989.
    Filed May 3, 1990.

      Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellant.
    Bernard L. Siegel, Philadelphia, for appellee.

      Before CIRILLO, President Judge, CAVANAUGH, BROSKY, OLSZEWSKI, DEL SOLE, MONTEMURO, TAMILIA, KELLY and JOHNSON, JJ.
   TAMILIA, Judge:

This appeal by the Commonwealth is before this Court en banc upon the granting of appellee Edward Doria’s application for reargument. By memorandum filed February 21, 1989, a three-judge panel of this Court reversed a January 11, 1988 Order of the Court of Common Pleas of Chester County suppressing all evidence secured as a result of a search conducted pursuant to a warrant by reason of the suppression court’s finding “no probable cause for a police officer or a reviewing magistrate to conclude that property stolen twelve days before execution of a warrant would be found on the premises [appellee] shared with his mother.” Slip Op., Smith, J., 2/11/88, p. 5.

The underlying factual history of this case as established by the record is as follows. On May 14, 1987, Detective Paul Raley of the Major Crimes Division of the Philadelphia Police Department procured and executed a search warrant for an apartment in the Carl Mackley Apartments in Philadelphia. In this instance, the personal information regarding the probable cause for the warrant came not from Detective Raley, but from summaries provided him by Detectives David Raum and John R. Bailey of the Tredyffrin Township Police Department, Chester County. Additional information supplied to Detective Raley was summarized from a Delaware County arrest warrant affidavit prepared by Pennsylvania State Police Officer Thaddeus Mesh. The search warrant affidavit in question states:

On 3-11-87 at approx. 10:00 AM the residence of Linda Doyle located at 804 Meadow Crt. in Glen Mills Pa. was entered by forcing the front door with a pry type instrument. The incident was witnessed by a neighbor Randy Currie, 31, a resident of this private development. Just prior to the burglary Currie spoke with the operator of a yellowish/tan color Chevy Monte Carlo, which was parked outside of 804 Meadow Crt. Currie then entered his own residence and looked out his window and saw this operator exit the auto and remove a pry type instrument from his waistband and walk up to the front door of 804 Meadow Crt. He stuck the pry type instrument into the door and forced it open. Currie called the superintendent of the development Arthur Spaid, 62 W/M, who arrived shortly thereafter on the scene. Spaid then spoke to the same W/M, that entered the house. This male was just leaving the front of the house carrying a pillowcase. This male got into the yellowish/tan Chevy and drove from the scene. The male (Spaid) recorded the tag number of the auto which was Pa. Lie. #NZH-089.
This burglary was investigated by Trooper Robert Foster and Trooper T.J. Mesh of the Pa. State Police. He learned that numerous articles of jewelry and a pillow case were missing from the apartment at 804 Meadow Ctr. [sic] On 5-11-87, Trooper Foster showed a series of photos to both Currie and Spaid and they both identified Edward Doria W/M, DOB 10-5-57 as the male they saw enter and leave the residence at 804 Meadow [C]rt.
Det. David Raum of the Tredyffrin Township Police Dept, was interviewed by the affiant. Det. Raum stated that for the last three weeks Edward Doria has been a suspect in several burglaries in that township. He stated that on May 2nd 2 houses in the Chesterbrook area where entered by prying open the front doors. In the first burglary at 11 Painters Ln. a S & W .38 cal. revolver and assorted jewelry was taken. In the second at 191 Valletstream Ln. the items were placed in a pillowcase but were left at the. scene when the owner returned home. Det. Raum further stated that on May 2nd. 1987 at approx. 10:10 AM Edward Doria’s car was observed at 102 Camsten Crt. Mr. Paul Devito stated that he observed a yellow Monte Carlo pull into his neighbor’s driveway and a W/M and a W/F got out and walked up to his neighbors [sic] door. The neighbor was away for the weekend. Devito walked outside and looked in the direction of the W/M and W/F. Both then walked back to the car and drove off. Devito reported the license number as Pa. Lie. #NZH-089. Det. Raum stated that he conducted his own investigation into these incidents and learned that Edward Doria owner of the yellow Monte Carlo is currently on State Parole for Burglary. He checked Mackley Apts, at M & Bristol Sts. in Philadelphia.
During the week of 5-6-87 and 5-12-87 Det. Raum conducted a surveillance at the Carl Mackley Apt’s. He saw that Edward Doria was sleeping there and went in and out during the day.
The affiant requests that this warrant be issued for the following reasons:
1— It is believed that Edward Doria is a resident at apt. # 136 at the Carl Mackley apts.
2— It is believed that Edward Doria is responsible for the 2 burglaries that occurred on May 2nd in the Chesterbrook Development. The method of entry was the same and jewelry was taken. This is the same as the Burglary that occurred on 3-11-87 in which Doria was identified.
3— It is believed that Doria is dealing in some jewelry. He was observed to have made 2 trips on the same day to the same jewelry store. Each time he entered empty handed and came out empty handed.
4— It is believed that Doria is a suspect in approx. 10 other Burglaries that have occurred in Tredyffrin Township.
Thursday 5-14-87 Edward Doria was arrested by police at 500 E. Allegheny Ave. and charged with Burglary from 3-11-87.

The allegation that the eyewitness Spaid recorded the license number which was traced to appellee’s automobile was subsequently conceded by the Commonwealth to be incorrect. This information was apparently culled from other sources and mistakenly attributed to Spaid.

After executing the search warrant with Detective Raley on May 14, 1987 at the Carl Mackley apartment rented to appellee’s mother, but where appellee was believed to be residing, Detective Bailey testified neither the jewelry, the gun nor any other item listed in the warrant was found during the search. However, he did find other items listed as missing on police crime reports, namely a black leather jacket and six coin sets in cardboard folders. The leather jacket was found hanging in a closet in the apartment, while the coin sets were found on top of a bookshelf and a cabinet. Detective Bailey then telephoned the owner listing the jacket as missing for a description of the jacket, and he was given a size and brand name which matched that of the jacket found in the closet. As to the coin sets, Detective Bailey also telephoned their purported owner, and she also described them sufficiently for the police to seize them.

The issues before this Court on reargument deal solely with the propriety of the affidavit of probable cause, the subsequent seizure of the jacket and coin sets and the good faith of the police in executing the search warrant at the Carl Mackley Apartments. We have undertaken a review of those issues and the appropriateness of the trial court’s determination. We also undertake to determine the appropriateness of the panel’s action and, in doing so, conclude this review was improvidently granted.

As to the first issue as stated by the majority of the panel, the police had probable cause to believe that Edward Doria committed three burglaries, one on March 11, 1987, and two on May 2, 1987. Based on this information, a search warrant was obtained for the residence of Doria’s mother, which was where he made his home. The affidavit portion of the warrant specified that the police were attempting to find burglary tools and property taken during the three burglaries, specifically:

Pry-type tools or large screwdriver. Any and all guns in particular a Smith & Wesson .38 Cal. revolver mod. # 36. Assorted jewelry in particular a jade pendent in the shape of a tear drop (no setting) and a gold pinky ring inscribed ‘FPO’ with a diamond.

We find no error in the probable cause to make a search for the property detailed, based on information and warrants provided by detectives and state police located in adjacent jurisdictions and supported by a surveillance of the residence. Commonwealth v. Crawford, 320 Pa.Super. 95, 466 A.2d 1079 (1983); Commonwealth v. Hutchinson, 290 Pa.Super. 254, 434 A.2d 740 (1981).

The second issue relates to admissibility of the evidence seized in the course of the search which was unrelated to the above specified property, none of which was found, and which supported charges for burglaries unrelated to those upon which the search warrant was issued. The trial court found that while there was no probable cause for the initial issuance of a warrant, the property seized would have been admissible as evidence had the initial warrant been valid. In this finding, the trial court was correct.

We hold that, supported by a valid search warrant, the evidence seized, relating to crimes not specified in the warrant, which was inadvertently found, may be admitted as evidence in the trial of those crimes.

As stated above, while no probable cause existed to arrest appellee or cause a search warrant to issue on the crimes subsequently charged, based on the evidence found at appellee’s residence, the seizure of that evidence is not rendered inadmissible. Appellee Doria was a suspect in ten additional burglaries and while the police had only suspicion and insufficient knowledge upon which to base a search warrant or arrest, they were not required to dismiss the knowledge from their minds while conducting a valid search for evidence of other crimes. Under the plain view doctrine, the seizing of property which was related to crimes other than those specified in the warrant was proper. The police found six coin sets which had been taken in a burglary on April 22, 1987 and a black leather jacket which had been taken in a burglary on April 27, 1987. Having knowledge of the crimes to which these related, although not covered by the warrant, the officer conducting the search seized the property which they came upon inadvertently. The officer confirmed, by phone, "with the victims the likelihood that these were items taken during the two burglaries, following which he seized them. We find no illegality in this procedure and believe it is clearly supported by decisions of the Supreme Court of the United States. Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979), summarized this view as follows:

[Coolidge v. New Hampshire,] “emphasized that under the so-called ‘plain view’ doctrine it would sometimes be permissible for police to seize items found while executing a warrant naming other objects[.]” W. LaFave, 2 Search and Seizure 165 (1978); see 403 U.S. [443] at 465-68, 91 S.Ct. at [2022] 2037-39 [29 L.Ed.2d 564]. The police must come upon the evidence inadvertently, in a place where they have a legal right to be at the time of the discovery, and it must be immediately apparent to them that the evidence is of incriminating character. See 403 U.S. at 465-69, 91 S.Ct. at 2037-40; Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974).

We believe this seizure complies with the inadvertency requirement of the plain view doctrine, which has been generally accepted in Pennsylvania. See Commonwealth v. Terra, 292 Pa.Super. 250, 437 A.2d 29 (1981); Commonwealth v. Casuccio, 308 Pa.Super. 450, 454 A.2d 621 (1982).

Since there appears to be no error in the findings by the majority of the panel in this case, we affirm and reinstate its decision and find reargument before the en banc Court to have been improvidently granted.

Order reversed; case remanded for trial.

Jurisdiction relinquished.

KELLY, J., concurs in the result of this opinion and files a concurring statement.

MONTEMURO, J., files a dissenting opinion, in which DEL SOLE and JOHNSON, JJ., join.

KELLY, Judge,

concurring:

I concur in the result. I note that in Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), the State of Arizona had conceded that the officer lacked probable cause and stipulated that he had only reasonable suspicion for his “search” of the underside of the stereo equipment located in plain view. In the instant case, no such fatal concession was made.

Prior to the search here, the officers had probable cause to believe that appellant had resumed his former trade as a local burglar. Combined with the discovery of items which (while not involved in the burglary for which probable cause to suspect appellant had been established) nonetheless fit general descriptions of property recently stolen in unsolved local burglaries, the police had evidence demonstrating a sufficient probability that the items were stolen to warrant the seizure of those items.

Probable cause is not certitude, nor even preponderance; rather, it is merely a sufficiently substantive probability to justify the intrusion involved. I find probable cause present here, prior to the post-seizure conduct of the officers calling the owners for a more detailed description of the property stolen, which further confirmed the pre-existing probable, cause.

MONTEMURO, Judge,

dissenting:

Following my review of the record before us in this case, I must respectfully dissent. Based upon the United States Supreme Court’s decision in Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), I would affirm the trial court’s order suppressing the leather jacket and coin sets. I agree with the majority’s determination that probable cause existed to support the issuance of the search warrant, and that, consequently, the police could validly enter the residence of Doria’s mother to search for the items listed in the search warrant. I do not agree, however, that the police, in executing this search warrant, validly searched and then seized the leather jacket and coin sets under the plain view doctrine.

The elements of the plain view exception to the warrant requirement were set forth in Coolidge v. New Hampshire, 403 U.S. 443, 465-469, 91 S.Ct. 2022, 2037-40, 29 L.Ed.2d 564 (1971) as follows: The police must come upon the evidence inadvertently, in a place where they have a legal right to be at the time of the discovery, and it must be immediately apparent to them that the evidence is of an incriminating nature. See also Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979). Coolidge has been recently clarified by the Arizona v. Hicks decision, where police were lawfully in an apartment immediately following a shooting incident, searching for the shooter, for victims, and for weapons, when they noticed expensive stereo equipment which appeared to be out of place in the' “squalid and otherwise ill-appointed four-room apartment.” Arizona v. Hicks, supra 480 U.S. at 323, 107 S.Ct. at 1151. A police officer moved the stereo equipment in order to read serial numbers. After phoning the serial numbers into police headquarters, the police learned that at least some of the stereo equipment was indeed stolen and, on that basis, the equipment was seized. Justice Scalia, writing for the majority of the Court, held that the moving of the equipment by the police officer in order to bring the serial numbers into view constituted a “search” under the Fourth Amendment:

Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent’s privacy interest____ But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry____

Id. at 325, 107 S.Ct. at 1152.

The Court in Hicks then addressed for the first time the question of whether under the Fourth Amendment probable cause is required in order to invoke the plain view exception to the warrant requirement. The Court held that probable cause is required before the plain view doctrine can justify the warrantless search or seizure of an item in a dwelling-place. Finding that the police had no probable cause to believe the stereo equipment was stolen property prior to searching it, the Hicks Court affirmed the order suppressing the evidence. “The theory of [the plain view] doctrine consists of extending to non-public places such as the home, where searches and seizures without a warrant are presumptively unreasonable, the police’s longstanding authority to make warrantless seizures in public places of such objects as weapons and contraband____ Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, i.e., the standard of probable cause.” Id. at 327, 107 S.Ct. at 1154.

In this Commonwealth, no appellate decision has addressed the Hicks decision in a factually analogous situation. See Commonwealth v. Carelli, 377 Pa.Super. 117, 546 A.2d 1185 (1988) (no search of evidence occurred where officers merely observed the interior of a garage); Com monwealth v. Ferrari, 376 Pa.Super. 307, 545 A.2d 1372 (1988) (search of automobile was justified by the combined effort of the plain view exception and the automobile exception); Commonwealth v. Pine, 370 Pa.Super. 410, 536 A.2d 811 (1988) (police had probable cause to search a television set for serial number where appellee was observed on the street with a television set in the middle of the night in an area known for burglaries, the appellee’s actions upon seeing the police were suspicious, and his explanation for having the television could not be corroborated); Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987). However, a number of other state courts have considered and applied the Hicks decision in cases similar to the case presently before this Court.

In Perez v. State of Florida, 521 So.2d 262 (Fla. 2nd Dist.Ct.App.1988), police were in the defendant’s home with a search warrant based upon probable cause to search for cocaine and guns of certain makes, models and calibers. At the time of the search, police were also aware of certain items which had appeared on recent stolen property lists in their county. One item reported as stolen was a Fisher-brand VCR, but at the time of the search of the appellant’s home, the police did not have a serial number or other identifying information concerning the missing VCR. The police observed a Fisher-brand VCR during the search, and it was seized by the police for further identification. The Perez Court, relying upon Arizona v. Hicks, supra, held that the VCR should have been suppressed and reversed appellant’s conviction for grand theft:

... [Officer] Sherry did not have probable cause to seize the VCR when he entered the home. The stolen property list he carried from the sheriff’s office contained no identifying data other than the popular brand name of the VCR, and Sherry had no other independent information concerning any incriminating element regarding the VCR. Sherry’s statement that the seizure was for “further identification” supports our holding that probable cause was lacking in this instance. The owner himself could not show that it was stolen until he procured his records containing the serial numbers. The machine itself bore no discriminating features or marks on it as it sat in its innocuous position in appellant’s home. On these facts we hold that neither officer had probable cause to believe the VCR was stolen property and that, therefore, the motion to suppress should have been granted.

Id. at 265.

There are a number of cases which, in my view, are distinguishable from the case at bar because police, while searching for items listed on a search warrant, came upon other items which immediately appeared, due to the specific characteristics of the items, to be incriminating under a standard of probable cause. In White v. State, 517 N.E.2d 83 (Ind.1987), a police officer followed footprints resembling a tennis shoe from the location of a business which had been burglarized to a house. When the police officer was admitted into the house by the defendant’s brother, the officer noticed a pair of damp tennis shoes with the shoestrings removed. He picked up the shoes, carried them outside to compare them to the footprints, and found they were identical. The Supreme Court of Indiana, relying upon Hicks, recognized that “[t]o be justified under the plain view doctrine, the shoes must have been of immediately apparent criminality at the time they were picked up without consideration of the evidence gained by the inspection or comparison following the seizure.... Therefore, Officer Crump must have had probable cause to believe that the tennis shoes were evidence of a crime at the time he picked them up.” Id. at 85. The Court concluded that the officer did have probable cause to search the shoes given the fact that he had seen tennis shoe prints in the snow leading from the scene of the burglary, and he inadvertently noticed the wet tennis shoes which had been set out to dry.

Likewise, in State of Connecticut v. Ruscoe, 212 Conn. 223, 563 A.2d 267 (1989), police officers, while searching for items in a search warrant, noticed items matching property recently reported as stolen in the area. The police also observed that serial numbers were missing from the items. The Supreme Court of Connecticut upheld the search and seizure of this missing property, reasoning that the police officers were “not required to avert their eyes, nor were they required to reject their common sense conclusions, drawn from the absence of serial numbers in the area they ordinarily are located on the backs of ... VCRs, tape decks and televisions.” Id. 212 Conn. at -, 563 A.2d at 277. See also People v. Rios, 205 Cal.App.3d 833, 252 Cal.Rptr. 653 (1988) (officer had probable cause to seize television in plain view where officer had cause to believe that the defendant had participated in the burglary of the television, television matched the brand and size of the stolen one, and officer was told by a resident that the television had appeared in the residence at about the time of the burglary); Wicks v. State of Delaware, 552 A.2d 462 (Del.1988) (seizure of camera permissible under plain view doctrine where defendant had recently offered to sell cameras “he had just picked up” to undercover agent who was posing as a buyer of stolen property, officers who observed camera in defendant’s residence noticed that it appeared to be out of place and nothing other than the camera itself indicated that anyone living there had an interest in photography); State of Minnesota v. Metz, 422 N.W.2d 754 (Minn.Ct.App.1988) (observations of police that a storage unit contained three partly dismantled motorcycles, parts of other vehicles with identification numbers partially destroyed, and a number of tools, provided probable cause to conclude that the items observed were stolen and thus subject to search and seizure under the plain view exception to the warrant requirement); Missouri v. Budgetts, 771 S.W.2d 902 (Mo.Ct.App.1989) (probable cause supported seizure of items in plain view in defendant’s residence where police knew defendant was on parole for burglary and items observed were nine brand new coats with price tags still attached).

In the instant case, my reading of the record discloses that when the police entered the apartment rented by Doria’s mother to execute the search warrant, they had reviewed a listing of items reported as stolen in the same general vicinity. Detective Bailey observed a leather jacket hanging in a closet which he testified also contained other male clothing. N.T., January 11, 1988, at 69. However, at the moment Detective Bailey observed the jacket, he knew nothing about the specific description of that jacket to give him any reason to think that the jacket he observed was stolen property. In fact, Detective Bailey did not know the size or brand of the stolen jacket until he phoned the victim of the robbery from the apartment during the search. This call was placed after Detective Bailey had removed the jacket from the closet and inspected it. Id. at 52 and 77. In my view, the search of the leather jacket was unreasonable under the Fourth Amendment, because Detective Bailey did not have any specific information concerning the jacket which had been reported as stolen that he could have used to identify the jacket upon observation. Moreover, nothing about the location of the jacket when Detective Bailey observed it — in a closet among other male clothes— was unusual or suggestive of criminality. Hicks clearly stands for the proposition that absent probable cause, the police may not conduct even a cursory physical examination of an item in plain view by deliberately moving or rearranging the item in order to view portions of the item which are concealed. The further investigation undertaken by Detective Bailey supports my conclusion that he lacked probable cause to associate the jacket with criminal activity when he first observed it hanging in the closet.

I would reach the same conclusion with reference to' the coin sets. Again, although Detective Bailey knew that some coin sets were reported as stolen on police reports, he did not have a specific description of the sets. He did not have any unique, identifying features of the sets that he could have used to associate the sets he observed in the apartment with the sets reported as stolen. Many individuais collect coins and keep them in sets. Further, it was not claimed that the coin collections were observed in a suspicious location in the apartment. I would also note that none of the items listed in the search warrant were found by the police. Under these circumstances, I am convinced that the record before this Court cannot support a finding that Detective Bailey had probable cause to associate the coin sets with criminal activity prior to the time he searched them by opening them and calling the victim of the burglary to secure, at that point, an exact description of the property reported as stolen. I believe that the Hicks decision mandates a finding that the search, and ensuing seizure, of the jacket and coin sets violated the Fourth Amendment and, consequently, this evidence must be suppressed.

Although I am unable to agree that it was immediately apparent to Detective Bailey that the leather jacket and coin sets were of an incriminating nature under a probable cause standard, I agree with the majority’s finding that the other two prongs of the plain view exception were satisfied in this case. There is no dispute that, by virtue of the search warrant, Detective Bailey was in a place where he had a legal right to be and, secondly, he came upon the evidence inadvertently during his search for the items listed in the search warrant. Further, I certainly am not troubled by the fact that police officers, while executing search warrants, will often have reviewed police records in other, ongoing investigations which may contain lists and descriptions of stolen property or other contraband. The fact that an officer, with this knowledge in mind, may have an opportunity to confirm his suspicions and search and seize evidence not named in a search warrant would amount to good police work as long as the officer has probable cause to believe that the items he finds in plain view are the fruits of criminal conduct by virtue of mere observation. Otherwise, police may be able to observe an item during the execution of a search and then, based upon that observation coupled with additional investigation, obtain a search warrant for the item. See State of Iowa v. Harris, 436 N.W.2d 364 (Iowa 1989) (while in defendant’s residence on another matter, police observed deck shoes and brand name which they later compared with evidence at the scene of a murder and degree of similarity between observed shoes and shoe-print pattern at crime scene provided one of the grounds for formulating a search warrant to seize the shoes).

Finally, it may well be that the , decision of the United States Supreme Court in Hicks which now requires probable cause in plain view cases will handicap some law enforcement efforts. However, as Justice Scalia reminds us in his Opinion in Arizona v. Hicks: “... there is noting new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” Id. 403 U.S. at 329, 107 S.Ct. at 1155. Based upon all of the foregoing reasons, I respectfully dissent and would affirm the order suppressing the evidence.

DEL SOLE and JOHNSON, JJ., join.

      . The Dissenting Opinion by Montemuro, J., relies heavily on Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), as authority for the theory that in seizing the jacket and coin set, the action was impermissible under the plain view doctrine. We believe this is a misapplication of Hicks and limits police action in a search, pursuant to a warrant, beyond what was intended. In Hicks, the police were looking for a shooter and weapons after a report was made that a shot had been fired through the floor, injuring a person below. During that search, the police turned over stereo equipment and obtained a serial number, constituting a separate search. Here, there was no “separate search" as the police were looking for items taken in two burglaries and came upon items they had reason to believe were taken from other burglaries. Their knowledge of victims who confirmed the identity of the items fully conforms with permissible action under Hicks which recognized that under the plain view doctrine and exigency of the circumstances, additional unspecified goods might be seized. Hicks simply held that a legitimate search for a man and a gun cannot be extended into another intrusion such as looking for stolen goods which could only be identified by serial numbers. It would permit a seizure under a search warrant for burglarized material when items from other burglaries, which could be identified, were found in plain view.

      . Indeed, the police in the present case certainly suspected that Doria had been responsible for other burglaries in the area, and they were aware of his arrest record. This knowledge, coupled with specific descriptions of the property reported as stolen which would have allowed the police to identify items upon observing them, would have, in my view, supplied Detective Bailey with the necessary probable cause to search and seize the jacket and coin sets.


author: TAMILIA, Judge:

text:
    574 A.2d 661
    COMMONWEALTH of Pennsylvania v. Carlos Eugene MOOSE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 7, 1990.
    Filed April 30, 1990.
    Petition for Allowance of Appeal Granted Sept. 11, 1990.

      Allen H. Smith, York, for appellant.
    Gerald Lord, York, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

This is an appeal from the judgment of sentence imposed May 8, 1989 following the trial court’s denial of appellant’s post-verdict motions. Appellant was convicted of first degree murder, conspiracy to commit murder, rape and conspiracy to commit rape, and the trial court sentenced him to serve life imprisonment plus 15 to 30 years. Appellant filed timely motions for new trial and iii arrest of judgment, which were denied. This appeal followed.

Appellant claims the Commonwealth’s conduct violated his constitutional rights to counsel and a fair trial. The conduct which appellant complains centers around the district attorney’s implied understanding with Sonny Oglesby, a county jail prisoner who allegedly elicited incriminating statements from appellant and other prisoners. The understanding entailed the district attorney’s agreement not to bring Oglesby up for sentencing, thereby allowing him to remain in the county jail despite his conviction of third degree murder and other felonies, in return for his providing information on other cases from inside the jail. The district attorney failed to disclose this implied understanding to appellant despite defense counsel’s formal motions for all exculpatory information, and the district attorney also failed to disclose Oglesby’s incriminating statements until the time of trial despite specific requests for such. Having reviewed appellant’s claims in view of their factual background and the relevant constitutional and case law, we conclude appellant’s claims are meritorious and therefore vacate the judgment of sentence and remand for a new trial.

The United States Supreme Court affirmed the principle that the sixth amendment guarantees the accused, after the initiation of formal charges, the right to rely on counsel as a medium between the state and himself, and this guarantee includes the state’s “affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right.” Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985). The Court in Moulton held:

[KJnowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent. (Emphasis added)

Id. Consequently, in Moulton, the Court ruled inadmissible the accused’s statements to his accomplice, made after the accomplice agreed to cooperate with the police, because the conversation between the two constituted an attempt by the state to circumvent the accused’s right to counsel.

Likewise in the instant case, the Commonwealth’s conduct in keeping Oglesby in the county prison to obtain incriminating evidence against inmates awaiting trial constitutes a knowing circumvention of appellant’s right to have counsel present in a confrontation between himself and a state agent. Clearly, under the facts of this case Olgesby was acting as an agent of the state in return for the district attorney’s agreement not to bring him up for sentencing. Here, Olgesby was retained in the county jail for over three years and obtained the nom de plume “monsignor” for his ability to engage other prisoners in confidential discussions frequently resulting in admissions of their criminal activity, which were then transmitted to the Commonwealth. The supplemental record shows he was a witness in at least four homicide cases while he was awaiting sentencing on a plea agreement for third degree murder, burglary and robbery. By intentionally creating a situation likely to induce appellant to make incriminating statements without the assistance of counsel, the Commonwealth violated his sixth amendment right to counsel. See United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 2188-89, 65 L.Ed.2d 115, 125 (1980).

Although the above-mentioned indiscretions are more than sufficient to compel a new trial, we will address appellant’s claim his right to a fair trial was infringed because we find it to be of merit also. Specifically, appellant contends the Commonwealth violated his right to a fair trial by failing to disclose exculpatory evidence in its possession, which evidence consisted of the Commonwealth’s agreement with Oglesby, and by failing to comply with the rules of discovery in not providing appellant with a copy of Oglesby’s incriminating statement when defense counsel specifically requested statements of all witnesses. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963), the United States Supreme Court held “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” When the reliability of a witness may be determinative of guilt or innocence, the Commonwealth’s nondisclosure of evidence affecting credibility falls under the rule in Brady. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 765-66, 31 L.Ed.2d 104 (1972); Commonwealth v. Wallace, 500 Pa. 270, 275-77, 455 A.2d 1187, 1190 (1983). As such, we find the Commonwealth’s failure to reveal its implied understanding with Oglesby constitutes reversible error.

In the instant case, the district attorney did not disclose his arrangement with Oglesby until the post-trial evidentiary hearing. At this hearing, he also revealed he had told Oglesby, prior to Oglesby’s testimony, his cooperation in appellant’s case would be made known to the court when Oglesby was eventually sentenced. Such information would easily affect Oglesby’s credibility because the testimony could be construed as biased and as having been given under the promise or expectation of leniency. Furthermore, Oglesby’s testimony that appellant confessed to the crimes charged went straight to the question of appellant’s guilt or innocence, and therefore his perceived reliability to the jury may well have been determinative of appellant’s guilt or innocence. Accordingly, the Commonwealth’s failure to disclose the arrangement, despite appellant’s requests for exculpatory evidence, mandates reversal.

Additionally, the district attorney’s failure to provide appellant with a copy of Oglesby’s incriminating statement violated the rules of discovery and, as such, impinged on appellant’s right to a fair trial. The applicable rule of discovery provides, inter alia:

B. Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
if * * * if *
(b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made, which is in the possession or control of the attorney for the Commonwealth.

Pa.R.Crim.P. 305 B(l)(b).

Although the district attorney had Oglesby’s April 5, 1988 statement since May 4, 1988, it was not until the first day of trial on August 17, 1988 that the district attorney disclosed the information to appellant, even though appellant had, on May 2, 1988, requested copies of any statements made by appellant to the police or any other person and copies of all statements made by any witnesses known to the Commonwealth concerning the alleged offenses (Application for Discovery, p. 1). Further, at the hearing on July 11, 1988 prompted by the Commonwealth’s failure to comply fully with appellant’s discovery requests, the Commonwealth furnished some more information and advised the court it had now furnished all the requested information. However, the Commonwealth still withheld Oglesby’s incriminating statement.

The accused’s right to due process is, in essence the right to a fair opportunity to defend against the Commonwealth’s accusations. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Here, the Commonwealth’s tactics afforded appellant no opportunity to defend himself against the accusations in Oglesby’s statement. We firmly reject the Commonwealth’s assertion appellant was not caught off guard by the statement because appellant was alerted to the statement before trial and because the statement was used only for impeachment purposes. This assertion ignores the fact the Commonwealth, at the trial’s outset, agreed not to use the statement and then did so, leaving appellant to face unexpected testimony at trial. Had the Commonwealth complied with its duty to disclose in the first place, appellant would not have been in such a situation at trial. We will not reward the Commonwealth for its failure to meet its legal obligations. As a result, we find appellant’s claim of error warrants reversal.

For all of these reasons, we believe appellant is entitled to a new trial.

Judgment of sentence vacated, and the case is remanded for a new trial in accordance with this Opinion.

Jurisdiction relinquished.

      . 18 Pa.C.S. § 2502(a).

      . 18 Pa.C.S. § 903.

      . 18 Pa.C.S. § 3121.

      . 18 Pa.C S. § 903.

      . By this Opinion, we do not intend to deny the Commonwealth the use of spontaneous admissions which frequently arise out of relationships between prisoners. We are simply expressing our concern with the undisclosed use of prisoners, who are suspect and self-serving, as agents of the Commonwealth. The defendant is entitled to have this information to protect himself against possible bias and fabrication.