author: WIEAND, Judge: McEWEN, Judge,

text:
    502 A.2d 658
    James Q. ALBIG and Agnes C. Albig, his wife, v. MUNICIPAL AUTHORITY OF WESTMORELAND COUNTY, Appellant, v. REPUBLIC STEEL CORPORATION (Two Cases). Joseph D. DONATELLI and Dolores C. Donatelli, his wife, v. MUNICIPAL AUTHORITY OF WESTMORELAND COUNTY, Appellant, v. REPUBLIC STEEL CORPORATION (Two Cases).
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1984.
    Filed Dec. 20, 1985.

      Rabe F. Marsh, III, Greensburg, for appellant in Nos. 653 and 654 and for appellee in Nos. 655 and 656.
    J. Frank McKenna, III, Pittsburgh, for appellant in Nos. 655 and 656 and for appellee in Nos. 653 and 654.
    George W. Lamproplos, Greensburg, for Donatelli and Albig, appellees.
    Before SPAETH, President Judge, and CAVANAUGH, WIEAND, McEWEN, CIRILLO, OLSZEWSKI, DEL SOLE, JOHNSON and CERCONE, JJ.
   WIEAND, Judge:

James and Agnes Albig and Joseph and Dolores Donatelli sustained property damage when water escaped from a reservoir owned by The Municipal Authority of Westmore-land County (MAWC). A jury found that MAWC had been negligent by failing to make adequate inspections but that MAWC’s negligence had not been the cause of the damage to neighboring properties. The escaping water had occurred, rather, as a result of subsidence caused by mining operations conducted beneath the reservoir by Republic Steel Corporation (Republic Steel). The jury found that the Albigs had sustained damages of $28,000.00 and that the Donatelli damages were in an amount of $32,500.00. The trial court rejected the jury’s finding that MAWC had not caused the property damage, determined that MAWC was absolutely liable therefor, and molded a verdict in favor of the property owners and against MAWC. The verdict was further molded to allow recovery over by MAWC against Republic Steel. Post-verdict motions were denied, and judgments were entered on the verdict. MAWC and Republic Steel appealed.

MAWC was incorporated in 1942 by the Commissioners of Westmoreland County to provide municipal services to the people and communities of Westmoreland County. In 1956, MAWC purchased a cylindrical reservoir situated on the side of a hill overlooking the Borough of West Newton. The reservoir had been built in 1906 and had a capacity of one million gallons. The Albig and Donatelli properties were downhill from the reservoir. On May 16, 1976, Mrs. Donatelli discovered that water was running into her basement from a flue in the basement wall. MAWC was notified and investigated. It was then discovered that surrounding land areas had become saturated with water. The reservoir was thereafter drained. This revealed that the floor had cracked and pulled away from the sides. The Albigs and Donatellis brought an action against MAWC. Republic Steel was then joined as an additional defendant. Republic Steel had recently conducted mining operations beneath the floor of the reservoir and also in surrounding areas, leaving a series of tunnels immediately beneath the reservoir. MAWC contended and the jury found that Republic Steel’s mining operations had produced a subsidence which had caused the floor of the reservoir to crack and allow water to escape into the surrounding land.

MAWC contends on appeal that it was error for the trial court to hold that it was absolutely liable for damages caused by escaping water and to mold the verdict so as to impose liability upon it. Because the jury found that MAWC’s negligence in failing to inspect the reservoir regularly was not a legal cause of the damages to surrounding land, MAWC argues further, its negligence does not support the action of the trial court.

The issue of absolute liability, if not entirely novel, is less than fully settled in the law of this Commonwealth. Absolute liability for injury caused by an abnormally dangerous activity had its genesis in England in the case of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). There, the water from defendants’ reservoir had escaped into an abandoned mine, from where it had spread through connecting passages to flood plaintiff’s mine. Liability was imposed even though the defendants were found to be free of fault. The court said that a person who for his own purposes uses his land unnaturally to keep and store thereon anything likely to do mischief if it escapes, must keep it at his peril, and if he fails to do so, he is absolutely liable for damages which are the natural consequence of its escape. Id. at 338.

The rule of Rylands v. Fletcher was not immediately accepted in Pennsylvania, where the better rule was held to be “that those who engage in an undertaking attended with risks to their neighbors are answerable for the conduct of the undertaking with diligence proportioned to the apparent risk____” Abraham v. Yardum, 64 Pa.Super. 225, 229 (1916). See also: Prosser and Keaton, The Law of Torts § 78, at 548-549 (5th ed. 1984). In 1938, however, the doctrine of Rylands v. Fletcher was incorporated into and articulated by the American Law Institute’s Restatement of Torts. Section 519 thereof provided in part as follows:

[O] ne who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent harm.

Restatement of Torts § 519 (1938). An ultrahazardous activity was defined as one which (1) necessarily involves a risk of serious harm to the person, land, or chattels of others which cannot be eliminated by the exercise of utmost care, and (2) is not a matter of common usage. Id. § 520.

Sections 519 and 520 of the Restatement of Torts were adopted as the law of Pennsylvania by the Supreme Court in Haddon v. Lotito, 399 Pa. 521, 161 A.2d 160 (1960). There, the Supreme Court, speaking through Justice (later Chief Justice) Eagen, said:

[I]n Pennsylvania it is established that one who carries on an ultrahazardous activity is liable for injury to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity, when the harm results thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent it. This is known as the doctrine of absolute liability.

Id., 399 Pa. at 523, 161 A.2d at 162 (citations omitted). The doctrine of absolute liability has been applied in Pennsylvania primarily to cases in which damages have been caused by blasting. See: Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A.2d 817 (1949); Bumbarger v. Walker, 193 Pa.Super. 301, 164 A.2d 144 (1960). Similarly, the doctrine has long been applied to the keeping of wild animals. See: Prosser and Keaton, The Law of Torts § 77, at 541-543 (5th ed. 1984). The doctrine, however, has not been limited to cases involving blasting and wild animals. In general, it will be applied to ultrahazardous activities which cannot be made safe by the exercise of utmost care. Dambacher v. Mallis, 336 Pa.Super. 22, 52-53, 485 A.2d 408, 424 (1984).

The Restatement (Second) of Torts has adopted a modified version of the Rylands v. Fletcher rule. Thus, Section 519 provides:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Restatement (Second) of Torts § 519 (1977). In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

Restatement (Second) of Torts § 520.

This approach incorporates a more flexible standard by which to determine whether an activity is so abnormally dangerous as to require a person to be strictly liable for all harm caused thereby. “The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care. In other words, are its dangers and inappropriateness for the locality so great that, despite any usefulness it may have for the community, it should be required as a matter of law to pay for any harm it causes, without the need of a finding of negligence.” Restatement (Second) of Torts § 520, comment f.

“Whether the activity is an abnormally dangerous one is to be determined by the court____ The imposition of strict liability ... involves a characterization of the defendant’s activities or enterprise itself, and a decision as to whether he is free to conduct it at all without becoming subject to liability for the harm that ensues even though he has used all reasonable care. This calls for a decision of the court; and it is no part of the province of the jury to decide whether an industrial enterprise upon which the community’s prosperity might depend is located in the wrong place or whether such an activity as blasting is to be permitted without liability in the center of a large city.” Restatement (Second) of Torts § 520, comment 1. See also: Clark-Aiken Co. v. Cromwell-Wright Co., 367 Mass. 70, 91, 323 N.E.2d 876, 888 (1975). Compare: Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978).

We conclude that the collection and storage of a large quantity of water on a hillside reservoir in proximity to a residential community may well constitute that kind of activity which, as a general rule, will be considered “abnormally dangerous” when conducted by a commercial enterprise. See: Restatement (Second) of Torts § 520, comment j. A reservoir, so located, presents not only a great risk to those whose homes lie beneath it, but the consequences of a breach of such a reservoir are likely to be devastating. On the other hand, modern engineering has demonstrated that water can now be stored in large quantities with relative safety if due care is exercised.

In any event, a critical consideration in determining whether MAWC shall be held absolutely liable for maintaining water in a reservoir is whether “its value to the community is outweighed by its dangerous attributes.” Restatement (Second) of Torts § 520(f). “Even though the activity involves a serious risk of harm that cannot be eliminated with reasonable care and it is not a matter of common usage, its value to the community may be such that the danger will not be regarded as an abnormal one.” Id., comment k. In such instances, liability may be imposed only for failure to exercise a degree of care commensurate with the dangerous character of the activity.

MAWC was created, as we have already observed, to provide municipal services to the people of Westmoreland County. The reservoir overlooking the Borough of West Newton was purchased and maintained for the purpose of storing a municipal water supply. Although it was not the primary source of water for West Newton, the reservoir was deemed necessary to provide a water reserve and to enhance the firefighting capabilities of the fire department. It served also to equalize pressure in the water distribution system. Under these circumstances, we conclude that the value of the reservoir to the community outweighed its potentially dangerous qualities. Therefore, the authority’s maintenance of its reservoir was not an abnormally dangerous activity. The storage of water for community use was not an activity in which MAWC could engage only at its peril. It was liable for water escaping from its reservoir only if it failed to exercise care commensurate with the risk.

Having concluded that MAWC was not engaged in an abnormally dangerous activity when it stored water for community use, we do not now decide whether a privilege to store water in a reservoir existed under Section 521 of the Restatement (Second) of Torts. Cf. Lobozzo v. Adam Eide-miller, Inc., 437 Pa. 360, 263 A.2d 432 (1970); Laventhol v. A. DiSandro Contracting Co., 173 Pa.Super. 522, 98 A.2d 422 (1953). We observe, however, that our holding is consistent with the Restatement rule that absolute liability is not to be imposed where an otherwise hazardous activity is carried on in pursuance of a public duty.

MAWC was required to exercise a degree of care commensurate with the risk of storing water in this reservoir and would be liable if its negligence made it possible for water to escape with resulting damage to property. The property owners’ evidence showed and the jury found that MAWC had failed to conduct adequate inspections of its seventy year old reservoir. Normally, this would be a sufficient basis upon which to predicate liability. Here, however, the jury found that MAWC’s negligence was not the legal cause of appellees’ property damage. Instead, the jury found, the legal cause of the escaping water was the mine subsidence which had produced a cracking of the reservoir floor, with resulting escape of water. This subsidence, the jury found, was an unforeseeable, intervening act of a third party.

The courts, even those which have imposed absolute liability for damages caused by escaping water, have generally held that the owner of the water cannot be held liable where the escape of water has been caused by third party acts which the owner could neither control nor anticipate. See: Annot., 169 A.L.R. 517, 544 (1947). Thus, in Box v. Jubb, L.R. 4 Ex.Ch. 76 (1879), an English court declined to follow Rylands v. Fletcher, supra, where an overflow of a defendant’s reservoir had been caused by the emptying of a large quantity of water from the upstream reservoir owned by a third person. The court said:

There has been an overflow from the reservoir which caused damage to the plaintiff. The question is, what was the cause of this overflow? Was it anything for which the defendants are responsible — did it proceed from their act or default, or from that of a stranger over whom they had no control? The case is abundantly clear on this, proving beyond a doubt that the defendant had no control over the causes of the overflow, had no knowledge of the existence of the obstruction. Matters complained of took place through no default or breach of duty of the defendants, but were caused by a stranger over whom and at a spot where they had no control. It seems to me to be immaterial whether this is called a vis major or the unlawful act of a stranger; it is sufficient to say that the defendants had no means of preventing the occurrence.

See also: Cohen v. Brockton Sav. Bank, 320 Mass. 690, 71 N.E.2d 109 (1947). See generally: Wheatland Irrigation District v. McGuire, 537 P.2d 1128 (Wyo.1975).

The third party act in the factual scenario of the instant case was the mining operation conducted by Republic Steel. It was this mining operation which caused the subsidence. Therefore, we examine the issue of Republic Steel’s liability-

Section 4 of The Bituminous Mine Subsidence and Land Conservation Act of April 27, 1966, Sp. Sess., P.L. 31, as amended, 52 P.S. § 1406.4, provides in part as follows:

In order to guard the health, safety and general welfare of the public, no owner, operator, lessor, lessee, or general manager, superintendent or other person in charge of or having supervision over any bituminous coal mine shall mine bituminous coal so as to cause damage as a result of the caving-in, collapse or subsidence of the following structures in place on April 27, 1966, overlying or in the proximity of the mine:
(1) Any public building or any noncommercial structure customarily used by the public, including but not being limited to ... municipal utilities or municipal public service operations.

(Emphasis added). This statute establishes an absolute duty upon mine operators to prevent subsidence of structures protected by the Act. See: DeLuca v. Buckeye Coal Co., 463 Pa. 513, 518, 345 A.2d 637, 639 (1975). The reservoir owned by MAWC, which had been constructed in 1906 and which was used as part of a community water distribution system, was a structure protected by the Act. It was a noncommercial structure used as part of a municipal, public service operation. As such, it was entitled to be protected absolutely against subsidence or collapse as a result of mining operations.

The jury was instructed that Republic Steel would be liable if its mining operation had caused the subsidence and cracking of the floor of MAWC’s reservoir which permitted water to escape and damage the Albig and Donatelli properties. This was a correct instruction and in keeping with the mandate of The Bituminous Mine Subsidence and Land Conservation Act of 1966. The jury specifically found that Republic Steel’s mining operation had caused a subsidence of the floor of the reservoir and that this phenomenon had made it possible for water to escape and damage neighboring properties.

Republic Steel argues that the Act created liability only to the owner of the structure which was actually damaged by subsidence. It argues, therefore, that it cannot be liable in this case because the Albig and Donatelli properties were not damaged by subsidence, cave-in or collapse. We reject this argument. Section 4 of the Act provides that no mining operation shall be conducted “so as to cause damage as a result of the caving-in, collapse or subsidence of the following surface structures____” (emphasis added). The purpose of the Act is stated, in section 2, to be “for the protection of the health, safety and general welfare of the people of the Commonwealth, by providing for the conservation of surface land areas ..., [and] to aid in the protection of the safety of the public____” 52 P.S. § 1406.2. It was for this reason that the legislature imposed upon those involved in bituminous coal mining operations the burden of protecting absolutely those improvements already in place. Section 19 of the Act suggests that its provisions are intended to be remedial and shall receive a liberal construction. 52 P.S. § 1406.19. “[S]ince the purpose of the statute is remedial and the statute is to be construed liberally ‘such as will best effectuate that purpose,’ to imply a restriction where none is expressed would be inconsistent with the clear language and spirit of the statute.” DeLuca v. Buckeye Coal Co., supra, 463 Pa. at 518, 345 A.2d at 639 (footnote omitted). We hold, therefore, that subsidence of the floor of the reservoir caused by Republic Steel’s mining operations rendered Republic Steel liable for all damages legally caused by water which escaped from MAWC’s reservoir because of such subsidence. Here, the jury was asked by special interrogatory to determine the causation issue and found that Republic Steel’s mining operation had caused the escape of the reservoir water and, therefore, was the legal cause for the damage to the Albig and Donatelli properties.

Republic Steel argues that it is entitled to a new trial because the trial court permitted the jury to learn that other homeowners had filed subsidence claims against Republic Steel. This information was contained on mining maps and drawings used by witnesses to define the extent of Republic Steel’s mining operations and the points of subsidence which had been caused thereby. A geologist, called to testify by MAWC, said that these other subsidenc-es had occurred in a similar geologic and topographic setting, and he opined that the same falls in the mine roof could have caused both the cracking of the floor of the reservoir and the damage to nearby homes. Republic Steel complains that the maps and drawings referred to by the witness designated additional homes where unproven subsidence claims had originated. This, it is contended, was prejudicial error.

Unofficial maps are usually admissible as evidence when verified by the testimony of a witness who has personal knowledge of their accuracy. 14 P.L.E. Evidence § 222 (1959). The fact that a map, which is otherwise relevant, shows an area larger than that involved in the case at issue does not make the map inadmissible. Stafford v. New York Central Railroad Co., 80 Pa.Super. 408, 410 (1923). In determining the admissibility of maps and diagrams, much must be left to the discretion of the trial judge. Jones v. Spidle, 446 Pa. 103, 108, 286 A.2d 366, 368 (1971). In the instant case, we perceive no abuse of that discretion. There was no testimony regarding subsidence damage not relevantly connected with the cause of the subsidence at the reservoir, and the trial court was not required to exclude relevant plans merely because they identified the location of additional unproven claims of subsidence. Their designation aided in an understanding of the geologists testimony; and it was enough that the jury understood that such additional claims were not involved in the present litigation.

Republic Steel also contends that the trial court erred in permitting Reginald Briggs, a geologist, to testify that a process of “winnowing” had caused “piping” under the Donatelli home. “Winnowing” the witness defined as the removal of finer material from a sedentary body by the passage of water. “Piping,” he said, occurred when voids were created in sub-surface earth. He opined that winnowing and piping had occurred under the Donatelli family room addition, which had been constructed without a foundation, and had caused it to move or slide laterally. Republic Steel argues that because he had not actually observed these phenomena, the geologist’s testimony was mere conjecture.

The admission of expert opinion testimony is within the sound discretion of the trial court. Klyman v. Southeastern Pennsylvania Transportation Authority, 331 Pa.Super. 172, 177, 480 A.2d 299, 302 (1984); Mapp v. Dube, 330 Pa.Super. 284, 293, 479 A.2d 553, 557 (1984). “An opinion of an expert based upon an adequate factual foundation is neither speculative nor conjecture, but a legitimate inference and as such has evidentiary value in determining disputed questions of fact. Hussey v. May Department Stores, Inc., 238 Pa.Super. 431, 436, 357 A.2d 635, 637 (1976), quoting Marrazzo v. Scranton Nehi Bottling Co., 422 Pa. 518, 530, 223 A.2d 17, 23-24 (1966).

Briggs’ opinion was based not on conjecture or surmise but upon facts known or observed from which he could reasonably infer that ground under the Donatelli family room had undergone piping because of water entering from the reservoir. Although Briggs had not directly observed the ground beneath the family room, his conclusion was drawn from established facts and circumstances and was within the area of his expertise as a geologist. The trial court did not abuse its discretion by allowing Briggs to testify that piping had occurred and needed to be repaired in order to stabilize the ground on which the family room addition was situated.

Finally, Republic challenges the testimony of Allan Sethman, the president of Alda Construction Co., who testified at trial that his company had estimated the cost of rebuilding the Albig retaining wall at $25,800.00. In 1979, Sethman and David Ferguson, another employee of Alda Construction Co., had examined the damaged retaining wall and had discussed its rehabilitation. Ferguson then prepared a proposal and cost estimate which he and Sethman reviewed together. Republic contends that Sethman’s testimony was inadmissible hearsay because it was Ferguson, who was not available to testify at trial, and not Sethman who had actually prepared the estimate. We disagree. The testimony was that Sethman had actively participated in inspecting the retaining wall and in determining the method for rebuilding the same. The trial court found and the evidence confirmed that the estimate had been the joint work product of Sethman and Ferguson. Therefore, Seth-man's testimony at trial was not hearsay but was derived from his own, direct knowledge. His estimate of cost to repair the damaged wall was properly admitted into evidence.

We conclude, for all the foregoing reasons, that the findings of the jury should not be disturbed. Pursuant to those findings, Republic Steel was solely liable to the appel-lee property owners for damages caused by escaping water. To the extent that the trial court molded the verdict otherwise, it fell into error.

Reversed and remanded for the entry of judgment in accordance with the foregoing opinion.

McEWEN, J., files a dissenting opinion in which SPAETH, President Judge, joins.

CERCONE, J., did not participate in the consideration or decision of this case.

McEWEN, Judge,

dissenting:

The majority holds that the Westmoreland County Municipal Authority’s maintenance of a hillside reservoir was not an abnormally dangerous activity as a result of its decision that “the value of the reservoir to the community outweighed its potentially dangerous qualities.” At 664. While the depth of my respect for my colleagues of the majority causes me great hesitation, I must, nonetheless, most respectfully, dissent.

Section 520(f) of the Restatement (Second) of Torts requires a court to consider, when determining whether an activity is abnormally dangerous, the “extent to which its value to the community is outweighed by its dangerous attributes.” The comment to clause (f) provides:

“[The] value to the community may be such that the danger will not be regarded as an abnormal one. This is particularly true when the community is largely devoted to the dangerous enterprise and its prosperity largely depends upon it. Thus, the interests of a particular town whose livelihood depends upon such an activity as manufacturing cement may be such that cement plants will be regarded as a normal activity for that community notwithstanding the risk of serious harm from the emission of cement dust.” (emphasis supplied).

I am of the view that the application of clause (f) of Section 520 of the Restatement (Second) of Torts should result in a determination that the activity is not abnormally dangerous only when the individuals imperiled by the activity are also the individuals benefited by the activity. In the instant case, a small number of individuals in the community were subject to the risks posed by the reservoir while the benefits enured to the entire community.

We are here called upon to establish policy and I deem the fairer policy to be one that requires the court to weigh and balance the value to whom and the danger to whom, in determining whether an activity is or is not unreasonably dangerous under Section 520(f). Only when the segment of the community that receives the benefit of the activity is also the segment of the community which is placed at risk by the activity, should subsection 520(f) result in a finding that the activity is not abnormally dangerous. Thus, I would here find that consideration of the factors in Section 520 should result in a finding that the reservoir was abnormally dangerous since the activity imperiled only a small segment of the community while the benefits from the activity flowed to the entire community.

The concept of risk distribution mirrors, perhaps, a resolution of such discomfort as is triggered by the notion that many benefit from the risk of a few. Thus, I deem it preferable, at this stage of the history of strict liability, to apply the analysis and principles of risk distribution to cases arising under clause (f) of Section 520, since the imposition of strict liability in cases where an ultrahazardous activity benefits an entire community but poses a risk to only a small segment of that community will result in a more equitable distribution of the losses caused by such activity.

Justification for this interpretation of Sections 519 and 520 has been ably expressed by Chief Judge (now Senior Judge) Thomas J. MacBride in Chavez v. Southern Pacific Transportation, 413 F.Supp. 1203 (E.D.Calif.1976):

“[T]he risk distribution justification for imposing strict liability is well suited to claims arising out of the conduct of ultrahazardous activity. The victims of such activity are defenseless. Due to the very nature of the activity, the losses suffered as a result of such activity are likely to be substantial — an ‘overwhelming misfortune to the person injured.'____ By indirectly imposing liability on those that benefit from the dangerous activity, risk distribution benefits the social-economic body in two ways: (1) the adverse impact of any particular misfortune is lessened by spreading its cost over a greater population and over a longer time period, and (2) social and economic resources can be more efficiently allocated when the actual costs of goods and services (including the losses they entail) are reflected in their price to the consumer.”

Chavez v. Southern Pacific Transportation Co., supra at 1209 (footnote omitted). Accord Indiana Harbor Belt Railroad Company v. American Cyanamid Company, 517 F.Supp. 314 (N.D.Ill.1981); National Steel Service Center, Inc. v. Gibbons, 319 N.W.2d 269 (Iowa, 1982).

Nor do I believe that Section 521 of the Restatement (Second) of Torts would afford immunity to the Municipal Authority under the facts of the instant case. The Section 521 issue was not, of course, a subject of discussion by our esteemed colleague Judge Donald E. Wieand in his excellent opinion for the majority since that issue had not been raised by any of the parties and since that issue had become merely academic by reason of the conclusion of the majority that the activity of the Municipal Authority was not abnormally dangerous.

However, since this dissenting view has concluded that the activity of the Municipal Authority was abnormally dangerous, the nature of the immunity afforded by Section 521 becomes a pertinent issue. As we have noted, the majority does not discuss the issue, but it does note two Pennsylvania cases, namely, Lobozzo v. Adam Eidemiller, Inc., 437 Pa. 360, 263 A.2d 432 (1970) and Laventhol v. A. DiSandro Contracting Co., 173 Pa.Super. 522, 98 A.2d 422 (1953). Our scrutiny of those cases leads us to conclude that Section 521 is applicable only to public officers or employees. Justice Pomeroy in Lobozzo notes that “Section 521 and comment (a)2 thereto appear to recognize that governmental bodies must, on occasion, engage in ultrahazardous activity for the public benefit and that a public officer or employee has the duty of conducting such activity thrust upon him by virtue of his position. Because the governmental unit may be either immune from suit or immune from liability for harm caused by such activity, the full burden of absolute liability would fall squarely upon the individual public servant, absent the Section 521 exception. Yet, the individual public officer or employee can neither control the degree of hazard he will create nor dictate the compensation he will receive for the performance of his required duties.” Id. 437 Pa. at 363, 263 A.2d at 434 (emphasis supplied).

Our research has uncovered but one pertinent case, McLane v. Northwest Natural Gas Company, 255 Or. 324, 467 P.2d 635 (1970), in which a wrongful death action was instituted against a public utility after the plaintiffs decedent was killed while insulating a gas storage tank under construction. The defendant argued that as a public utility it was authorized by the state to store and distribute natural gas and was, therefore, immune from liability by virtue of Section 521. The court quoted Section 521 of Tentative Draft No. 10 of the Restatement (Second) of Torts, which provided “[t]here is no strict liability for an abnormally dangerous activity if it is carried on in pursuance of a public duty imposed upon the actor, or a franchise or authority conferring legislative approval of the activity.” The comment to the proposed draft provided, inter alia:

b. Even where there is no duty to engage in the abnormally dangerous activity, the defendant may be protected from strict liability by a sanction conferred by the legislature, under circumstances such as to indicate approval of the activity sufficient to confer immunity. Normally this is the case when, under a franchise, given to such a defendant as a common carrier, it is authorized but not required to accept dangerous commodities for transportation. It may likewise be the case where the legislature grants to a defendant authority to engage in an activity of the abnormally dangerous kind, as where, in wartime, a defendant is authorized to construct and operate a plant making explosives in an area of special danger.
On the other hand, it is not every authorization or permission to engage in an activity which can be taken to confer immunity from strict liability, by giving such approval to the activity as to indicate an intent that the defendant shall not be liable. In the absence of special circumstances indicating such an intent, the normal interpretation of the act of the legislature in granting a franchise or authority to act in such a manner is that the defendant is authorized to proceed, but must be strictly responsible if the activity in fact results in harm to those in the vicinity.

The McLane court held that “[t]he proposed section lends no aid to defendant’s contention. We do not believe the fact that the state has authorized defendant to engage in the abnormally dangerous activity in question demonstrates any intention to predetermine where responsibility should lie in the case of a non-negligent miscarriage of the activity.” Id. at 336, 467 P.2d at 641.

We hasten to note, of course, that the form in which Section 521 was adopted omits the terms “franchise” and “authority”, and specifically provides immunity for “public officers” and “employees” only. I, therefore, believe that Section 521 provides immunity only for public officers and employees and find it inapplicable to the activity of the Authority in the instant case.

I would, therefore, reinstate the judgment as entered by the distinguished Judge Joseph A. Hudock.

SPAETH, President Judge, joins this dissenting opinion.

      . The walls of the reservoir were nineteen feet in height. Although an enbankment had been placed around the outside of the reservoir, two-thirds thereof was actually above ground level.

      . Even those jurisdictions which have rejected Rylands v. Fletcher have imposed absolute liability, where appropriate, for nuisances and for direct trespasses to land. Prosser and Keaton, The Law of Torts § 78, at 552-554 (5th ed. 1984). “There is in fact probably no case applying Rylands v. Fletcher which is not duplicated in all essential respects by some American decision which proceeds on the theory of nuisance; and it is quite evident that under that name the principle is in reality universally accepted.” Id. at 553 (footnotes omitted). See also: Magaro v. Metropolitan Edison Co., 130 Pa.Super. 323, 197 A. 550 (1938) (liability based on theory of direct trespass to land where water from the defendant's artificial canal had discharged into a natural water course in amounts exceeding that which would have flowed had the land been left in its natural state, thereby flooding the plaintiffs property). Accord: Amish v. Walnut Creek Development, Inc., 631 S.W.2d 866 (Mo.Ct.App. 1982)

      . The property owners also contended that MAWC should have drained the reservoir more quickly in order to minimize the damage.

      . Although the trial court instructed the jury that a subsidence caused by Republic Steel’s mining operations was negligence as a matter of law, the court's use of the word “negligence" was harmless.

      . Republic Steel has not raised and we do not decide whether The Bituminous Mine Subsidence and Land Conservation Act of 1966 is constitutional under Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922). We observe, however, that a federal court sitting in Pennsylvania has upheld the law. See: Keystone Bituminous Coal Association v. DeBenedictis, 581 F.Supp. 511 (W.D.Pa. 1984). See also and compare: Patton v. Republic Steel Corp., 342 Pa.Super. 101, 492 A.2d 411 (1985).

      . The precise ruling is that a private contractor is not within the exceptions created by Section 521 even though the private contractor is performing work at the direction and under the authorization of a governmental body. The decision also makes clear and certain that the insulation from liability for ultrahazardous activity is limited to governmental officials and is not meant to cover ultrahazardous activity at the direction of government agencies.
      It might be argued that Section 521 assumed the immunity of government agencies and sought to extend that immunity to the officials of the government agencies. If that be so, the immunity that it assumed was the immunity that is conferred upon government while it carries out its governmental duties and not while it conducts proprietary operations.


source: Caselaw Access Project

author: WIEAND, Judge: BROSKY, Judge, CIRILLO, Judge,

license: Public Domain

text:
    502 A.2d 670
    Mary PISTORIUS, Individually and as Administratrix of the Estate of John J. Pistorius, Deceased, Appellant, v. The TRAVELERS INSURANCE COMPANY v. Raymond K. CRAWFORD.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1985.
    Filed Dec. 20, 1985.

      B. Albert Bertocchi, Kittanning, for appellant.

      Philip A. Faix, Jr., Pittsburgh, for Travelers, appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, CIRILLO, OLSZEWSKI, BECK and TAMILIA, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a “dirt bike”, which cannot be licensed under the Pennsylvania Vehicle Code, is a motorcycle for purposes of applying the provision of the Pennsylvania No-fault Motor Vehicle Insurance Act which disallows recovery of no-fault benefits by operators of motorcycles. The trial court held that a dirt bike was a motorcycle and that, although the bike operator had been killed in a collision with a licensed motor vehicle, the admin-istratrix of the deceased operator’s estate was ineligible to recover survivor’s benefits under the No-fault law. We conclude that the dirt bike was not a motorcycle and reverse.

On August 18, 1981, John J. Pistorius, a thirteen year old youth, was operating a Yamaha MX100 dirt bike along a township road in Sugarcreek Township, Armstrong County, when he came into collision with a truck being driven by Raymond Crawford. Pistorius died as a result of injuries sustained in the collision. Neither the dirt bike nor the truck was covered by insurance. Mary Pistorius, the deceased boy’s mother and administratrix of his estate, made a claim for basic loss benefits under the Assigned Claims Plan of the Pennsylvania No-fault Motor Vehicle Insurance Act. The claim was assigned to The Travelers Insurance Company (Travelers). Travelers denied liability. It contended that the decedent had been operating a motorcycle and that, therefore, his administratrix could not recover no-fault benefits under the Act. A civil action followed. When the trial court entered summary judgment in favor of Travelers, an appeal was filed in this Court.

“Basic loss benefits,” as defined by the No-fault Act, are payable to persons who incur loss due to injuries arising out of an accident involving the “maintenance or use of a motor vehicle.” No-fault Act, supra, § 103, 40 P.S. § 1009.103. However, the Act specifically excludes recovery by victims whose loss has been sustained while operating or riding on a motorcycle. With respect to operators of motorcycles, the Act retains a system of tort liability for injuries which have been sustained. No-fault Act, supra, § 301(a)(6), 40 P.S. § 1009.301(a)(6). The Act does not define the term motorcycle. Our task, therefore, is to ascertain whether the legislature intended to bar drivers of dirt bikes from recovering no-fault benefits when it denied benefits to operators of motorcycles.

A statute must be read to effect its general purpose. Busy Beaver Building Centers, Inc. v. Tueche, 295 Pa.Super. 504, 512, 442 A.2d 252, 256 (1981). Words and phrases used by the legislature are to be construed according to their common meaning and accepted usage, with technical words being given their technical meaning. Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983). However, individual provisions in a comprehensive legislative scheme should not be read abstractly, but rather with a view to their place in the entire structure. Commonwealth v. Davis, 330 Pa.Super. 551, 558, 479 A.2d 1041, 1045 (1984), allocatur granted (February 7, 1985); Anatanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 338, 467 A.2d 345, 353 (1983), aff'd, 507 Pa. 68, 488 A.2d 571 (1985).

The Supreme Court, in Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975), upheld the validity of the legislature’s decision to treat motorcycles differently than other motor vehicles for purposes of providing basic loss benefits to accident victims. The Court did not then define a “motorcycle” for purposes of excluding coverage but did observe that “[mjotorcycles are ‘motor vehicles’ for the purpose of compulsory insurance although they are excluded under subsection 301(a)(6) of the Act. No-fault benefits are, therefore, available to third persons injured by a motorcycle.” Id., 464 Pa. at 406 n. 29, 346 A.2d at 907 n. 29 (citations omitted).

Travelers argued in the trial court, as it does on appeal, that the Yamaha MX100 dirt bike is virtually identical to a motorcycle. Photographs produced during depositions suggest a similarity. However, the dirt bike has been designed for recreational use and not for use on public highways. It has no headlights, no taillight, no horn, no turn signals, no mirror, and no speedometer. Because it lacks these features, the dirt bike cannot be licensed under the Vehicle Code. Thus, it is not a “motor vehicle” within the meaning of the No-fault Motor Vehicle Insurance Act. See: 40 P.S. § 1009.103.

In Bindernagel v. Nationwide Mutual Automobile Insurance Co., 335 Pa.Super. 419, 484 A.2d 773 (1984), a panel of this Court held that a trail bike was not a motor vehicle. Therefore, it held, a trail bike is not within the ambit of the No-fault Motor Vehicle Insurance Act. With this conclusion we agree. See also: Siefert v. Nationwide Insurance, 289 Pa.Super. 160, 432 A.2d 1101 (1981) (trail bike); Bills v. Nationwide Mutual Insurance Co., 317 Pa.Super. 188, 463 A.2d 1148 (1983) (dune buggy). Compare: Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984) (snowmobile). Having concluded that a trail bike was not a motor vehicle, the Bindernagel court then concluded that there could be no recovery of no-fault benefits. Overlooked by the Court, apparently because it had not been argued, was the fact that Bindernagel’s trail bike had come into collision with a motor vehicle. Consequently, the Court found it unnecessary to determine whether the trail bike was a “motorcycle.”

In the instant case, however, we cannot avoid determining this issue, i.e., whether a dirt bike is a motorcycle. Even if appellant’s decedent was not operating a motor vehicle, it is clear that he was nevertheless a victim of a motor vehicle accident. While operating a dirt bike, he came into collision with a licensed truck, which was a motor vehicle. As a result of this collision with a motor vehicle, the decedent received injuries which caused his death. If the decedent was operating a motorcycle, his estate is not entitled to recover benefits under the No-fault Act. If his dirt bike was not a motorcycle, however, the statute does not bar a recovery of benefits. In that event the decedent occupies under the No-fault Act a status similar to that of a bicyclist or pedestrian who has been struck by a motor vehicle.

Our examination of the No-fault Motor Vehicle Insurance Act leads us inevitably to the conclusion that to be an operator of a motorcycle, as envisioned by the exclusionary language of the statute, one must be operating a motor vehicle. A recreational vehicle which is not a motor vehicle, therefore, cannot be a motorcycle. The Yamaha MX100 was a recreational vehicle; it was not sold for operation on the public highways. As such, it could be operated lawfully by the decedent even though he was not licensed to operate motor vehicles. Because the dirt bike was not a motor vehicle, the compulsory insurance provisions of the No-fault Act had no application. Thus, if one were injured solely as a result of the maintenance or use of a dirt bike, no-fault benefits would not be payable. If a dirt bike collided with a truck or other motor vehicle, however, its rider would then be entitled to receive no-fault benefits.

We hold that the dirt bike being operated by the decedent at the time it was struck by a truck was neither a motor vehicle nor a motorcycle; it was a recreational vehicle and could not be licensed. Because appellant’s decedent was killed as a result of a collision between his dirt bike and a motor vehicle, recovery of basic loss benefits under the Act is permissible. It was error, therefore, to grant summary judgment in favor of Travelers.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

SPAETH, President Judge, joins this opinion and also the concurring opinion by BROSKY, J.

BROSKY, J., files a concurring opinion in which SPAETH, President Judge, joins.

CIRILLO, J., files a dissenting opinion in which OLSZEW-SKI and TAMILIA, JJ., join.

BROSKY, Judge,

concurring:

I fully agree with the result reached by the majority in this case, and I join the majority’s opinion. I believe, however, that some additional comments may be helpful.

The majority seems to imply that it was not necessary for the panel in Bindernagel v. Nationwide Mutual Automobile Insurance Co., 335 Pa.Super. 419, 484 A.2d 773 (1984) to decide whether or not a trail bike was a “motorcycle” within the meaning of the No-fault Act, but that it is necessary for us to decide that issue in the case before us. In both cases, a dirt bike or trail bike (which I believe are synonymous terms) collided with a motor vehicle. In both cases, the trial court ruled that the dirt bike or trail bike was a “motorcycle”, and the trial court therefore denied recovery to the injured party riding the bike. In both cases, the injured party (or the injured party’s estate) argued on appeal that the trial court erred in finding that a trail or dirt bike was a “motorcycle,” the operator of which was to be excluded from No-fault benefits under Section 103 of the Act. The two cases are therefore identical, and our decision in this case should make it perfectly clear that Bindernagel is being overruled.

As I view the legislative scheme of the No-fault statute, any individual who is injured through someone’s (either his own or another person’s) use of a “motor vehicle” is entitled to receive basic loss benefits. A pedestrian who is struck by a motor vehicle while crossing the street, even though he may be crossing illegally or otherwise breaking the law, will be entitled to receive the benefits. A person who is riding or driving a non-licensed recreational vehicle or some other motorized vehicle, such as a riding lawn mower, whether on or off the highway, will be entitled to the benefits if involved in an accident with a motor vehicle. The only exception to coverage will be a person who is riding or operating a “motorcycle,” because of the specific exclusion of § 1009.103. It is unfortunate that the legislature did not define “motorcycle” in the No-fault Act; however, accepting the definition of “motorcycle” found in the Statutory Construction Act, as the dissent would have us do, would lead to results inconsistent with provisions of the No-fault Act.

Section 103 of the No-fault Act defines “motor vehicle” as “a vehicle of a kind required to be registered under the ... Vehicle Code.” As the majority opinion notes [and as panels of our court have noted in Bindernagel v. Nationwide Mut. Auto. Ins., 335 Pa.Super. 419, 484 A.2d 773 (1984), and in Siefert v. Nationwide Ins., 289 Pa.Super. 160, 432 A.2d 1101 (1981) ], dirt bikes are not “motor vehicles,” since they cannot bé licensed. The dissent concedes this point.

A motorcycle clearly falls within the above definition, and is therefore a “motor vehicle.” Although not a holding, language of our Supreme Court in Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975) seems to indicate that the Supreme Court would agree with this statement. The dissent in the case before us reaches the same conclusion. Thus, there appears to be complete agreement that under the No-fault Act: (1) a dirt bike is not a “motor vehicle,” and (2) a motorcycle is a “motor vehicle.”

By applying the definition of “motorcycle” found in the Statutory Construction Act, and by using common sense (which should never be used when attempting to interpret the No-fault Act), the dissent concludes that a dirt bike is a “motorcycle” within the meaning of the No-fault statute. Accepting the dissent’s conclusion that a dirt bike is a “motorcycle,” it follows that since a “motorcycle” is a “motor vehicle,” a dirt bike must also be a “motor vehicle.” This conflicts with our initial conclusion (with which the Dissent agrees) that under the No-fault Act, dirt bikes are not “motor vehicles.” I must therefore disagree with the dissent’s use of the definition of “motor vehicle” found in the Statutory Construction Act. However much dirt bikes may look like, feel like, and smell like motorcycles, it appears that we are precluded from concluding for purposes of the No-fault statute that dirt bikes are “motorcycles.” I therefore agree with the majority that a person operating a dirt bike which is involved in an accident with a “motor vehicle” is entitled to receive basic loss benefits under the No-fault Act.

SPAETH, President Judge, joins this concurring opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent, primarily because I interpret the No-Fault Act as being narrower in scope than does the majority here today.

Dirt bikes are recreational vehicles, not motor vehicles, because they cannot be licensed under the Motor Vehicle Code due to their lack of certain safety features. 40 P.C.S. § 1009.103. Thus, in an ordinary one vehicle accident involving only a dirt bike, the No-Fault Act is inapplicable entirely, and the rider receives no insurance benefits. However, by my Brethren’s analysis of 40 P.C.S. § 1009.103, a dirt bike rider can receive benefits if he collides with a motor vehicle, because in such instance he has been injured through the “maintenance or use of a motor vehicle.”

In contrast, a motorcycle is a motor vehicle, so it would initially seem that motorcycle riders would come within the ambit of the No-Fault Act. However, by statutory provision, 40 P.C.S. 1009.301(a)(6), motorcycles are specifically excluded from the Act despite their motor vehicle status. The exclusion is total; even when a motorcyclist is injured by a collision with some other motor vehicle, he is denied basic loss benefits.

The question is obvious: Why not subject dirt bikers to the same sweeping exclusion that faces motorcyclists? The majority reasons that the motorcycle exclusion, like the rest of the No-Fault Act, applies only to motor vehicles; since a dirt bike is not a motor vehicle, the exclusion cannot apply. In my view, this perceived distinction between motorcycles and dirt bikes is irrelevant and contrary to the obvious legislative intent in denying coverage to motorcycles.

It is true that, strictly speaking, a dirt bike is not a motor vehicle because it cannot be licensed under the Motor Vehicle Code. However, in cases such as this, it should not necessarily follow that a dirt bike cannot be a motorcycle. To hinge the allowance of insurance benefits upon whether the bike at issue is licensed under the Vehicle Code ignores an important fact: riders of dirt bikes (and other recreational vehicles) frequently take to the open road in disregard of their machines’ lack of those safety features required by the Code.

The No-Fault Act itself lacks a definition of “motorcycle”; we may therefore look to the meaning given the term in the Statutory Construction Act, 1 P.C.S. §§ 1921-1991. See e.g., Habecker v. Nationwide Insurance Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982). A motorcycle is defined in the Act as “any vehicle of the bicycle or tricycle type operated by any type of internal combustion motor.” This broad definition no doubt foresaw many variations on the motorcycle theme, including the dirt bike here at issue. Indeed, in Myers v. State Farm Mutual Automobile Insurance Co., 348 Pa.Super. 539, 502 A.2d 676 (1985), filed even date herewith, we rely upon this very definition in holding that a “moped” can be considered a motorcycle. I fail to see why the definition is not controlling in this case as well.

A commonsense comparison of motorcycles and dirt bikes further supports the conclusion that they are one and the same, particularly when viewed in the light of the legislature’s rationale behind the denial of benefits to motorcycle operators. Quite simply, motorcyclists do not reap the benefits of the No-Fault Act because they have chosen a means of transportation considerably more dangerous than the more common automobile; rather than spread this more dramatic risk of loss among all insureds, it is incumbent upon each motorcyclist to recover losses on his own through traditional tort avenues. Samsel v. The Travelers Indemnity Company, 295 Pa.Super. 188, 441 A.2d 412 (1982); Singer v. Sheppard, 464 Pa. 386, 346 A.2d 897 (1975). In view of the legislature’s practical consideration of the dangerous nature of these machines, the majority’s cited distinctions between motorcycles and dirt bikes pale in comparison to their one overriding similarity: both require the operator to perch himself atop an engine capable of dramatic acceleration, exposed to the world and stripped of the protection afforded by steel doors and a roof. To the unlucky rider who is hurdled through the air when his bike collides with a less frail object, it makes little difference whether his machine was licensed under the Vehicle Code. Just as a rose by any other name is still a rose, a motorcycle better suited for trails than for highways is nonetheless a motorcycle.

Of course, holding that a dirt bike is but a specific type of motorcycle is the most fluid means of assuring that all such dangerous vehicles are denied No-Fault basic loss benefits. However, even were I to agree with my Brethren that motorcycles and dirt bikes are different in some significant way, I cannot agree that a dirt bike rider injured in a collision with a motor vehicle is entitled to benefits under Section 1009.103. The operator of a licensed, roadworthy motorcycle must take it upon himself to recover for any injuries sustained; I fail to see why the rider of a dirt bike, who should not be on the road to begin with, must not be similarly bound. By today’s decision, the dirt bike rider who stays on the trails is patently denied coverage (as he should be), but his more daring counterpart can take to the highway secure in the knowledge that a collision with a motor vehicle will trigger the receipt of No-Fault benefits.

The majority feels compelled towards this anamoly by the language in Section 1009.103 which dictates coverage for “an individual who suffers injury arising out of the maintenance or use of a motor vehicle.” In my view, this provision must not be contorted to provide a windfall for those who carelessly place recreational vehicles into the flow of traffic. I would apply the provision only to pedestrians and those who are injured by their own maintenance or use of a motor vehicle. Under the circumstances, I cannot agree that being struck by a motor vehicle amounts to the maintenance or use of one.

However, I must point out that my position speaks only to those instances in which a dirt bike is involved in an accident on the highway, because it is only then that the dirt bike rider is improperly placed in a more advantageous position than the motorcyclist by today’s decision. In other words, I do not here address any “worst case scenario” wherein a motor vehicle somehow goes off the highway and injures a dirt bike rider who is properly keeping his machine off the road. I would have no difficulty placing the injured biker in such instance in the same shoes as an innocent pedestrian, such as to allow the recovery of benefits. Cf., 40 Pa.C.S. § 1009.204(c)(4); Prudential Property & Casualty Ins. v. Falligan, 335 Pa.Super. 195, 484 A.2d 88 (1984); Schimmelbusch v. Royal-Globe Ins. Co., 247 Pa.Super. 28, 371 A.2d 1021 (1977).

A practical reading of the No-Fault Act does not allow a dirt bike rider to be put in a more advantageous position than the operator of a properly licensed motorcycle. I would affirm the trial court.

OLSZEWSKI and TAMILIA, JJ., join this dissenting opinion.

      . 75 Pa.C.S. § 101 et seq.

      . Act of July 19, 1974, P.L. 489, as amended, 40 P.S. § 1009.101 et seq., repealed, Act of February 12, 1984, P.L. 26, § 8(a) (effective October 1, 1984).

      . It should also be noted, however, that the issue raised sua sponte by the panel in Bindernagel; i.e. whether or not a dirt or trail bike is a “motor vehicle,” was correctly analyzed by the panel in Bindernagel. Pursuant to that analysis, I agree with the majority’s conclusion that a trail or dirt bike is not a “motor vehicle,” and therefore cannot be a "motorcycle.”

      . The term "trail bike” is often used in place of “dirt bike”. Any difference between the two is irrelevant to this analysis.

      . Other states have adopted an equally realistic interpretation. See Life & Casualty Insurance Co. of Tennessee v. King, 37 Ala.App. 435, 71 So.2d 121 (1953), cert. denied, 260 Ala. 699, 71 So.2d 124 (1954); Standifer v. Inter-Ocean Insurance Co., 37 Ala.App. 393, 69 So.2d 300 (1953); Navarra v. Central National Insurance Co., 232 So.2d 28 (Fla.Dist.Ct.App.1970); Valdes v. Prudence Mutual Casualty Co., 207 So.2d 312 (Fla.Dist.Ct.App-1968); Labove v. Traders & General Insur

        ance Co., 219 So.2d 614 (La.App.1969); Labracio v. Northern Insurance Co., 66 N.J.Super. 216, 168 A.2d 682 (1961).


author: WIEAND, Judge:

text:
    502 A.2d 676
    Paul Henry MYERS, an incompetent, by Edna Margaret MYERS, the Guardian of the Estate and Person of Paul Henry Myers, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Danny C. Waters Insurance Agency, Appellees.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1985.
    Filed Dec. 20, 1985.

      George H. Rowley, Greenville, for appellees.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, CIRILLO, OLSZEWSKI, BECK and TAMILIA, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a motorized pedalcy-cle, popularly known as a “moped”, is a motorcycle for purposes of determining coverage under the Pennsylvania No-fault Motor Vehicle Insurance Act. We hold that a motorized pedalcycle, which must be licensed under the Motor Vehicle Code, is a motorcycle. Therefore, an operator of a moped is not entitled to recover benefits under the No-fault Act.

While operating a 1979 Sachs Moped, a motorized pedal-cycle, in the Borough of Greenville, Mercer County, on July 28, 1981, Paul Henry Myers was struck and seriously injured by an automobile. Because of the injuries sustained by Myers, he was rendered incompetent. Consequently, his wife, Edna Margaret Myers, was appointed guardian of his estate; She commenced an action in assumpsit against State Farm Mutual Automobile Insurance Company, which had issued two policies of automobile insurance to the Myers. The first policy had been issued for the moped; it did not provide coverage for basic loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act. The second policy had been issued to provide coverage for a 1977 Buick owned by Mr. and Mrs. Myers; it did provide for payment of no-fault benefits. The insurance company filed preliminary objections in the nature of a demurrer on grounds that Myers had been injured while riding a motorcycle. The trial court agreed, dismissed the complaint, and entered judgment in favor of the insurer. Mrs. Myers appealed.

In Pistorius v. Travelers Insurance Co., 348 Pa.Super. 527, 502 A.2d 670 (1985), this Court said:

“Basic loss benefits,” as defined by the No-fault Act, are payable to persons who incur loss due to injuries arising out of an accident involving the “maintenance or use of a motor vehicle.” No-fault Act, supra, § 103, 40 P.S. § 1009.103. However, the Act specifically excludes recovery by victims whose loss has been sustained while operating or riding on a motorcycle. With respect to operators of motorcycles, the Act retains a system of tort liability for injuries which have been sustained. No-fault Act, supra, § 301(a)(6), 40 P.S. § 1009.301(a)(6). The Act does not define the term motorcycle.

Id., 348 Pa.Superior Ct. at 530, 502 A.2d at 671. We held in Pistorius that to be an operator of a motorcycle, as envisioned by the exclusionary language of the No-fault Act, one had to be operating a motor vehicle. Because the dirt bike in Pistorius was a recreational vehicle, neither subject to licensing as a motor vehicle nor intended for use on the public highways, we held that it was not a motor vehicle for purposes of the No-fault Act. Therefore, the dirt bike was not a motorcycle within the motorcycle exclusion of the Act.

Although the vehicle at issue in the instant case was a motorized pedalcycle instead of a dirt bike, we must nevertheless engage in the same inquiry undertaken in Pistorius to determine whether this particular transportation device was a motor vehicle for purposes of the No-fault Act, and if so, whether it was a motorcycle subject to exclusion of no-fault benefits. Because we find that the moped in this case, unlike a dirt bike, was a motor vehicle licensed for operation on the public highways of this Commonwealth, the decision in Pistorius is not determinative here.

Before attempting to characterize a motorized pedalcycle for purposes of applying the provisions of the No-fault Act, we observe that a statute must be read to effect its general purposes. Busy Beaver Building Centers, Inc. v. Tueche, 295 Pa.Super. 504, 512, 442 A.2d 252, 256 (1981). Individual provisions in a comprehensive legislative scheme should not be read abstractly but rather with a view to their place in the entire structure. Commonwealth v. Davis, 380 Pa.Super. 551, 558, 479 A.2d 1041, 1045 (1984), allocatur granted (February 7, 1985); Antanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 338, 467 A.2d 345, 353 (1983), aff'd, 507 Pa. 68, 488 A.2d 571 (1985).

The No-fault Act, in Section 103, defined “motor vehicle” to mean a vehicle of a kind required to be registered under the Vehicle Code. With certain specific exemptions, all vehicles operated on the public highways must be registered. 75 Pa.C.S. § 1301(a). Although the Vehicle Code, in Section 1302(a)(8), provides that self-propelled, motorized pedalcycles for invalids are exempt from the registration requirements, Myers was not an invalid, and his moped was not in any way designed for operation by an invalid. It was designed for use on public streets and in fact was being so used by Myers when the accident giving rise to this lawsuit occurred. We conclude, therefore, that Myers’ moped was required to be licensed. Moreover, it was, in fact, a licensed motor vehicle.

Having decided that the motorized pedalcycle in this case was a motor vehicle, we must now determine whether it was a motorcycle and thus excluded from coverage under the No-fault Act. The Statutory Construction Act, at 1 Pa.C.S. § 1991, provides that the term “motorcycle,” when used in any statute enacted after September 1, 1937, shall mean, unless the context indicates otherwise, “[a]ny vehicle of the bicycle or tricycle type operated by any type of internal combustion motor.” Applying this definition to the facts of the instant case, there can be no doubt that the Myers’ moped was a motorcycle.

The same result must obtain if we apply the definition of “motorcycle” used by the legislature in the Vehicle Code. A motorcycle is defined in the Vehicle Code as “[a] motor vehicle having a seat or saddle for the use of a rider and designed to travel on not more than three wheels in contact with the ground.” 75 Pa.C.S. § 102. A “motorized pedal-cycle” is defined as “[a] motor driven cycle equipped with operable pedals, a motor rated no more than 1.5 brake horsepower, a cylinder capacity not exceeding 50 cubic centimeters, an automatic transmission, and a maximum design speed of no more than 25 m.p.h. Id. (emphasis added). A “motor-driven cycle” was defined by the Vehicle Code, at the time of Myers’ accident, as “[a] motorcycle, including a motor scooter, with a motor which produces not to exceed five brake horsepower, and every pedalcycle with motor attached.” Id. (emphasis added). The legislature, when it enacted the No-fault law, looked to the Vehicle Code for its definition of a “motor vehicle.” A motorized pedalcycle, as we have observed, is a motor vehicle which must be registered. The definition of “motorcycle” adopted by the legislature in the Vehicle Code includes mopeds. Appellant has been unable to demonstrate any valid reason why, in construing the No-fault Act, we should interpret the term “motorcycle” otherwise.

Indeed, although the term “motorcycle” is not defined in the No-fault Act, the general purposes of the legislature and the entire structure of the law as enacted suggest that operators of licensed, motorized pedalcycles were intended to be excluded from the Act’s protection. Motorcyclists were excluded because their risk of injury was greater than the risk of injury experienced by operators of other motor vehicles. A motorcycle’s greater instability, the Supreme Court observed, would necessarily increase the premiums needed to purchase insurance protection for such vehicles. Singer v. Sheppard, 464 Pa. 387, 406, 346 A.2d 897, 907 (1975). It has also been said that special treatment for motorcycles was prompted by a legislative policy to provide no-fault compensation for highway, vehicular accidents one step at a time. See: Samsel v. Travelers Indemnity Co., 295 Pa.Super. 188, 192, 441 A.2d 412, 414 (1982). The no-fault system provided coverage for lesser accidents but reserved compensation for injuries received in more serious accidents, including those involving motorcycles, for disposition in accordance with traditional tort remedies. Id. These concerns are equally applicable to operators of mopeds licensed for use on the public highways.

We hold, therefore, that the moped being operated by Myers when he sustained injury was a motorcycle. It follows that he is not eligible to receive basic loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Law, and that the trial court correctly so held.

Affirmed.

      . Act of July 19, 1974, P.L. 489, as amended, 40 P.S. §§ 1009.101 et seq., repealed, Act of February 12, 1984, P.L. 26, § 8(a) (effective October 1, 1984)..

      . Also named as a defendant was the Danny C. Waters Insurance Agency. Appellant concedes that she has no cause of action against this defendant and that preliminary objections in the nature of a demurrer were properly sustained with respect to her claim against the agency.

      . Although the No-fault Act referred to the Vehicle Code of 1959, the legislature’s inadvertent failure to designate correctly the applicable Vehicle Code was not fatal. It constituted a mere oversight. The Vehicle Code of 1976 is applicable. Siefert v. Nationwide Insurance Co., 289 Pa.Super. 160, 161-162 n. 2, 432 A.2d 1101, 1102 n. 2 (1981).


text:
    502 A.2d 679
    COMMONWEALTH of Pennsylvania v. Gilbert HARVEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 9, 1985.
    Filed Dec. 20, 1985.

      Ronald L. Chicka, Mount Pleasant, for appellant.
    John Driscoll, District Attorney, Greensburg, for Com., appellee.

      Robert A. Graci, Chief Deputy Attorney General, Harrisburg, for the Attorney General, intervenor.
    Before WIEAND, JOHNSON and MONTGOMERY, JJ.
   WIEAND, Judge:

Gilbert Harvey was found guilty by a jury of possession of a controlled substance and possession with intent to deliver. Included among items of evidence relied upon by the Commonwealth at trial were tape recordings of conversations between Gilbert Harvey and Jeffrey Woods, an informant. These recordings had been made with Woods’ consent pursuant to statutory authorization contained in 18 Pa.C.S. § 5704(2)(ii). On direct appeal from the judgment of sentence, Harvey contends that recorded evidence of these conversations should have been suppressed because the statute authorizing interception of personal and telephone conversations is unconstitutional. We disagree.

The Commonwealth’s evidence showed that on September 1, 1982, Woods had telephoned appellant and had asked him to obtain cocaine for him. Appellant agreed to try. Some time later that evening, after a number of conversations both by telephone and in person, all of which were intercepted and recorded, Woods went to appellant’s home. Woods was then wearing devices which transmitted his conversations to receivers monitored by the police, who recorded the communications received. After Woods had been at appellant’s home for a brief period of time, Donald Payne arrived. Woods gave $300 to appellant who went out on the porch with Payne. When appellant re-entered the house, he gave Woods three packages of cocaine. Appellant also retained some of the cocaine for himself. Woods then left and turned the cocaine over to the police.

The Wiretapping and Electronic Surveillance Control Act, at 18 Pa.C.S. § 5704, provides as follows:

It shall not be unlawful under this chapter for:
(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.

Appellant argues that legislative authorization to police to intercept communications with the prior consent of one of the parties: (1) violates the First Amendment of the United States Constitution and Article 1, Section 7 of the Pennsylvania Constitution because it has a chilling effect on free speech; (2) violates the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution because it permits warrantless searches; (3) is invalid because it vests unlimited discretion in the government; and (4) deprives citizens of due process of law because it allows law enforcement officials to record incriminating evidence against a person without giving that person the correlative right to record exculpatory conversations. Close examination of these contentions reveals that they are lacking in merit.

“The law is well settled that statutes duly enacted by the legislature are presumed to be constitutional____ A statute will not be held unconstitutional except upon a showing that the statute is ‘clearly, palpably and plainly’ in conflict with constitutional provisions.” Commonwealth v. Leta, 346 Pa.Super. 552, —, 500 A.2d 85, 87 (1985), quoting Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981). See: Commonwealth v. Doty, 345 Pa.Super. 374, 387-88, 498 A.2d 870, 876 (1985); Estate of Cox, 327 Pa.Super. 479, 485, 476 A.2d 367, 370 (1984), and cases cited therein.

The First Amendment of the federal Constitution provides that “Congress shall make no law ... abridging the freedom of speech____” U.S. Const, amend. I. This guarantee is applicable to the states through the Fourteenth Amendment. See, e.g.: Brightbill v. Rigo, 274 Pa.Super. 315, 322 n. 2, 418 A.2d 424, 427 n. 2 (1980). Where a state statute unduly restricts a citizen’s First Amendment rights, it will be held unconstitutional. See: American Future Systems, Inc. v. Pennsylvania State University, 688 F.2d 907 (3d Cir.), cert. dismissed, 459 U.S. 1093, 103 S.Ct. 583, 74 L.Ed.2d 941 (1982); American Civil Liberties Union v. City of Pittsburgh, 586 F.Supp. 417 (W.D.Pa.1984); Pennsylvania Accessories Trade Association v. Thornburgh, 565 F.Supp. 1568 (M.D.Pa.1983); Commonwealth ex rel. Specter v. Moak, 452 Pa. 482, 307 A.2d 884 (1973).

Appellant argues that Section 5704(2)(ii) has a chilling effect on free speech because it discourages citizens from conversing freely. However, Section 5704(2)(ii) does not either declare any type of speech or conduct illegal, or establish any barrier to the exercise of free speech. It does no more than provide a means for law enforcement officials to preserve already admissible evidence of criminal activity for use in later prosecutions. Appellant could not possibly argue that Woods should not be permitted to testify to the substance of conversations which the two men shared about the sale of a controlled substance. Their conversations were neither privileged nor protected from being overheard. Thus, in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834, 843-844 (1949), the Supreme Court said: “[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced or carried out by means of language, either spoken, written or printed.” Section 5704(2)(ii) does not impair the freedom of citizens to assemble or to speak freely. It is not rendered invalid because it permits law enforcement officials to preserve evidence of criminal conduct disclosed in conversation. Appellant’s argument that the statute chills free speech, therefore, is untenable.

Moreover, even if the statute were to have some “chilling effect” on free speech, that fact alone would not render it unconstitutional. In American Booksellers Association v. Rendell, 332 Pa.Super. 537, 481 A.2d 919 (1984), this Court upheld the constitutionality of a statute which prohibited the display of explicit sexual materials in commercial establishments where minors might be expected to be exposed to them. The plaintiffs had argued that the statute had a chilling effect on their First Amendment rights because booksellers were being forced to choose between censoring publications prior to public display or risking prosecution. We said:

the mere fact that booksellers might engage in self-censorship does not require invalidation of the statute.
The existence of a “chilling effect,” even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action ...
... Just as the incidental “chilling effect” of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not in itself justify prohibiting the State from carrying out the important and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution.

Id., 332 Pa.Superior Ct. at 579, 481 A.2d at 940, quoting Younger v. Harris, 401 U.S. 37, 51-52, 91 S.Ct. 746, 754, 27 L.Ed.2d 669, 679-680 (1971).

Any tendency of 18 Pa.C.S. § 5704(2)(ii) to bring about self-censorship on the part of criminals engaged in conversations with other persons does not render the statute unconstitutional. The statute permits interception of communications “involving suspected criminal activities.” Any chilling effect on the right of a person to speak freely about his criminal activities is a necessary incident to the important and necessary task of enforcing laws against socially harmful conduct.

Appellant’s contention that the statute imposes an impermissible restraint on free speech in violation of Article 1, Section 7 of the Pennsylvania Constitution is also without merit. “Subjection to criminal liability for past conduct ... or following a hearing at which the defendant has the right to trial by jury, and the Commonwealth must prove the elements of the violation beyond a reasonable doubt ... does not constitute a prior restraint.” American Booksellers Association v. Rendell, supra, 332 Pa.Super. at 578 n. 24, 481 A.2d at 940 n. 24.

Appellant’s next contention is that Section 5704(2)(ii) violates the Fourth Amendment of the United States Constitution. He argues that actions of law enforcement officials in intercepting and recording his conversations without a warrant violated his Fourth Amendment right to be free from unreasonable searches and seizures. Again we disagree.

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated____” U.S. Const, amend. IV.

[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection ... [b]ut what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967) (citations omitted).

[T]he Supreme Court has consistently held that whether an individual is entitled to the protection of the fourth amendment “depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979)____ The controlling consideration, therefore, is whether the individual contesting the search and seizure entertains a legitimate expectation of privacy in the premises or area searched.

Commonwealth v. Sell, 288 Pa.Super. 371, 377-378, 432 A.2d 206, 210 (1981) (footnote and citations omitted), rev’d on automatic standing issue, 504 Pa. 46, 470 A.2d 457 (1983). Not only must the individual exhibit an actual expectation of privacy, but his expectation must also be one that society will recognize as being reasonable. Id., 288 Pa.Superior Ct. at 378, 432 A.2d at 210, quoting Smith v. Maryland, 442 u.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, 226-227 (1979).

Numerous federal decisions have held that the Fourth Amendment “does not protect a party to conversation who reposes trust or confidence in an undisclosed government agent or informant.” United States v. Mitlo, 714 F.2d 294, 296 (3d Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 550, 78 L.Ed.2d 724 (1983). See: United States v. White, 401 U.S. 745, 749, 91 S.Ct. 1122, 1124-1125, 28 L.Ed.2d 453, 457 (1971) (plurality opinion); Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374, 382 (1966); Lopez v. United States, 373 U.S. 427, 437-438, 83 S.Ct. 1381, 1387, 10 L.Ed.2d 462, 469-470 (1963); On Lee v. United States, 343 U.S. 747, 753-754, 72 S.Ct. 967, 972, 96 L.Ed. 1270, 1275-1276 (1952); United States v. Kelly, 708 F.2d 121, 124 (3d Cir.), cert. denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 258 (1983); United States v. Santillo, 507 F.2d 629, 631-632 (3d Cir.), cert. denied sub nom, Buchert v. United States, 421 U.S. 968, 95 S.Ct. 1960, 44 L.Ed.2d 457 (1975). “Neither [the Supreme] Court nor any member of it has ever expresed the view that the Fourth Amendment protects a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v. United States, supra, 385 U.S. at 302, 87 S.Ct. at 413, 17 L.Ed.2d at 382. Thus,

it does not violate an individual’s constitutional or statutory privacy interests to introduce at a criminal trial tape recordings of his private conversations if the other party to those conversations voluntarily consented to their recording .... “The principle underlying [that rule] is that when one reveals information to an individual, one takes the risk that one’s confidence in that individual is misplaced.” ... [N]o justifiable expectation of privacy is violated if the government subsequently uses that conversation at trial.

United States v. Kelly, supra at 124, quoting Flaherty v. Arkansas, 415 U.S. 995, 999, 94 S.Ct. 1599, 1601, 39 L.Ed.2d 893, 894 (1974) (Douglas, J., dissenting from the denial of certiorari) (numerous citations omitted). See, e.g.: United States v. White, supra; United States v. Mitlo, supra; United States v. Santillo, supra at 634-635 and cases cited in note 15.

Given these authorities, appellant’s contention that Section 5704(2)(ii) violates his rights under the Fourth Amendment must fail. That the recordings here in question were made in appellant’s own home does not mandate a different result. Indeed, in United States v. White, supra, the electronic surveillance occurred in the defendant’s home and automobile. Even so, the court held, the defendant had no right of privacy with respect to statements made to another person, and interception thereof did not violate his Fourth Amendment rights.

Appellant also argues that Section 5704(2)(ii) violates Article 1, Section 8 of the Pennsylvania Constitution. That section provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affi-ant.

Pa. Const, art. 1, § 8. Appellant urges us to interpret Article 1, Section 8 as providing greater protection for the right to privacy than does the Fourth Amendment of the United States Constitution. A similar argument was made and rejected by this Court in Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985). See also: United States v. Geller, 560 F.Supp. 1309 (E.D.Pa.1983), aff'd sub nom, United States v. DeMaise, 745 F.2d 49 (3d Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 786, 83 L.Ed.2d 780 (1985).

“[I]t cannot be doubted that this state has the constitutional power to guard individual rights, including the right to be free from unreasonable searches and seizures, more zealously than the federal government does under the United States Constitution.” Commonwealth v. Beauford, 327 Pa.Super. 253, 263, 475 A.2d 783, 788 (1984). See: Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983); Kroger Co. v. O’Hara Township, 481 Pa. 101, 392 A.2d 266 (1978); Commonwealth v. Harris, 429 Pa. 215, 239 A.2d 290 (1968). Indeed, in Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980), and Commonwealth v. Beauford, su pra, Pennsylvania courts interpreted Article 1, Section 8 to provide greater protection from unreasonable searches and seizures than the Fourth Amendment. Nevertheless, it is difficult under any interpretation of Article 1, Section 8, to find a justifiable expectation of privacy with respect to information disclosed during conversation with a third person. Disclosures made during conversation are entirely voluntary. If a citizen voluntarily discloses criminal involvement during conversation with a third person, the Pennsylvania constitutional guarantee against unreasonable searches and seizures does not prevent future disclosure thereof to law enforcement officials. Similarly, the constitutional guarantee does not extend to or prevent a recording of the conversation in order to preserve the same for use in law enforcement activity. Nothing in contemporary constitutional thinking suggests otherwise.

Similarly, there is no merit in appellant’s argument that the statute creates a constitutionally impermissible balance in favor of law enforcement officials by allowing them to record incriminating conversations of citizens while denying citizens the correlative right to record exculpatory statements. There is no basis in law for the bald assertion that for every legislatively endorsed or created investigative technique for use by law enforcement officials there must be a correlative and offsetting right by which criminals can conceal their illegal activities.

We also reject appellant’s argument that because Section 5704(2)(ii) lacks restrictive guidelines, it is invalid because it sanctions indiscriminate electronic surveillance. Police discretion is not unlimited. It is restricted by the requirement that one of the parties must give prior consent to such an interception. Interceptions are also limited to communications involving suspected criminal activities. When acting within these limitations, law enforcement authorities violate no constitutional rights of the parties by intercepting conversations where one of the conversants has consented to have the conversation recorded.

Appellant argues that the evidence obtained by electronic surveillance should have been suppressed because the memorandum of approval executed by the Deputy Attorney General did not specifically list appellant as one whose conversations were to be intercepted. The record of the suppression hearing discloses that on August 13, 1982, a memorandum of approval was executed which authorized the interception of communications between Woods and a number of other persons who had been identified by name. One of the persons specifically identified by name was appellant. The memorandum expired according to its terms on August 25, 1982. Thereafter, a second memorandum of approval was executed. This memorandum was labeled an “extension” and authorized interceptions from August 26, 1982 to and including September 4, 1982. This extension authorized interception of communications between Woods and “others who may be present at the time narcotic transactions take place or are discussed.” Although appellant’s name was not among those specifically listed, it was enough that he was in the general category of other persons present when narcotics transactions took place. Moreover and in any event, as this Court observed in Commonwealth v. Checca, 341 Pa.Super. 480, 492, 491 A.2d 1358, 1364 (1985), neither the Wiretap Act nor relevant case law subjects a “Memorandum of Consent,” which is based on consent of a party to the conversation, to the exacting standards of authorization required for nonconsensual surveillance under the Wiretap Act.

Appellant's final contention is that the trial court erred when it refused to redact a certain portion of the tape recorded conversation which made reference to a prior sale of cocaine. The trial court determined that this portion of the conversation was relevant to show an intent to participate in the drug transaction with Woods.

“In Pennsylvania, the law is clear that if a testimonial reference^ absent specific circumstances,] ... indicates to the jury the accused has been involved in prior criminal activity, reversible error has been committed.” Com monwealth v. Turner, 454 Pa. 439, 442, 311 A.2d 899, 900 (1973)---- “[P]assing references” to prior criminal activity do not necessarily warrant reversal____ Rather, the record must illustrate that prejudice results from the reference.. Prejudice results where the testimony conveys to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.

Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979) (emphasis in original). See: Commonwealth v. Williams, 476 Pa. 557, 569, 383 A.2d 503, 509 (1978); Commonwealth v. Green, 315 Pa.Super. 564, 576-577, 462 A.2d 736, 742 (1983); Commonwealth v. Bowermaster, 297 Pa.Super. 444, 450-451, 444 A.2d 115, 118 (1982); Commonwealth v. Jackson, 263 Pa.Super. 183, 184-185, 397 A.2d 807, 808 (1979). Thus, the threshold inquiry is whether the evidence in question reasonably implied that the defendant had engaged in prior criminal activity, for only if this inquiry is answered affirmatively, is it necessary that we determine whether the evidence falls within one of the exceptions to the general rule of inadmissiblity.

In the instant case, the portion of the conversation about which appellant complains was as follows:

Defendant Harvey: Nobody did, nobody, oh no I charged a hundred and a half.
Informant Woods: For a gram?
Defendant Harvey: Yea, Mine was pure rock, ah, no shape, I broke it off the rock, off the rock, No cut what so ever. Yea, I told you, four ounces didn’t last for a day and a half.
Informant Woods: Yea.
Defendant Harvey: It was this four ounce plate of rock and you know, I was afraid of pinchin’ it and ah, you know, it’d be all off the rock. You know there gotta be some cryin’. You know, but I’d break, what I’d think is about a eighth of a piece, then I’d measure and weigh it out.

Much of this conversation was unintelligible to persons not versed in the dialect of the drug culture. Nevertheless, it is possible that a juror might have inferred from the conversation that appellant had sold controlled substances in the past. Therefore, we will determine whether the evidence was admissible as an exception to the general rule.

Evidence of other crimes is admissible ... when the evidence tends to prove: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or, (5) the identity of the person charged with the crime on trial.

Commonwealth v. Brown, 280 Pa.Super. 303, 307, 421 A.2d 734, 736 (1980). See: Commonwealth v. Peterson, 453 Pa. 187, 197-198, 307 A.2d 264, 269 (1973); Commonwealth v. Sparks, 342 Pa.Super. 202, 206, 492 A.2d 720, 722 (1985); Commonwealth v. Barba, 314 Pa.Super. 210, 221, 460 A.2d 1103, 1109 (1983); Commonwealth v. Martinez, 301 Pa.Super. 121, 125, 447 A.2d 272, 274 (1982). “To be admissible to show intent or motive, the evidence must give sufficient ground to believe that the crime currently being considered grew out of or was in any way caused by the prior set of facts and circumstances.” Commonwealth v. Brown, supra 280 Pa.Super. at 308, 421 A.2d at 736, citing Commonwealth v. Schwartz, 445 Pa. 515, 285 A.2d 154 (1971). There must be a logical connection between the prior incident and the crime for which the accused is being tried. Important factors to be considered in making this determination include the proximity in time between the incidents; the similarity in the circumstances surrounding the incidents; and whether evidence of the prior crime is necessary to rebut the accused’s evidence or contention of accident, mistake or lack of required intent. See: Commonwealth v. Sparks, supra 342 Pa.Super. at 206, 492 A.2d at 722; Commonwealth v. Barba, supra 314 Pa.Super. at 222, 460 A.2d at 1109.

The reference to prior sales of controlled substances was contained in a conversation in which appellant, according to the Commonwealth, was attempting to sell drugs to Woods. It was an essential part of the transaction for which appellant was being prosecuted. See: Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080 (1985). It was also relevant to show that appellant was not an innocent party serving as an unwitting “go-between” in a drug transaction. Rather, he was part of a broader and ongoing scheme to sell drugs. The evidence was particularly relevant in view of appellant’s defense that his only involvement was as an innocent person attempting to find a seller of drugs for a friend. The trial court did not err in refusing to redact this portion of the conversation in which an illegal drug sale was negotiated.

The judgment of sentence is affirmed.