author: ROWLEY, President Judge:

text:
    618 A.2d 985
    Maria C. MOLITORIS v. Robert J. WOODS, Three Rivers Regatta Association, and U.S. Formula One Racing Association, Inc. Appeal of: BORDEN, INC. Maria C. MOLITORIS v. Robert J. WOODS, Three Rivers Regatta Association, and U.S. Formula One Racing Association, Inc. Appeal of: ROTHMAN, GORDON, FOREMAN, AND GROUDINE, P.C.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1992.
    Filed Dec. 21, 1992.

      Eileen A. Groves, Columbus, OH, for Borden.

      Carl E. Harvison, Pittsburgh, for Rothman, Gordon, Foreman & Groudine, P.C.
    Before ROWLEY, President Judge, and CIRILLO and MONTGOMERY, JJ.
   ROWLEY, President Judge:

Borden, Inc. (hereinafter “Borden”) and the law firm of Rothman, Gordon, Foreman and Groudine, P.C. (hereinafter “Rothman Gordon”) have filed cross-appeals from the trial court’s order granting Rothman Gordon’s petition to enforce an attorney’s charging lien. The order awarded Rothman Gordon the sum of $9,767.48 to be paid out of an escrow fund established from sums recovered by the law firm on behalf of Maria Molitoris (hereinafter “plaintiff’) and Borden in the underlying personal injury action. The appeals of Borden and Rothman Gordon have been consolidated. We affirm.

The facts giving rise to this appeal follow. In the summer of 1988, plaintiff attended an annual boating festival in Pittsburgh known as the Three Rivers Regatta. While there, she sustained serious injuries as a Formula One power boat racing on the river went out of control, left the race course and crashed into observers on the bank of the river. Approximately one month later, in September of 1988, plaintiff retained Rothman Gordon to represent her in any legal action which she may have had against the party or parties responsible for the Regatta accident. Within the firm, attorney William R. Crum, Jr. was assigned to plaintiffs case.

At the time of the accident, plaintiff was an employee of Viviano Macaroni Company, a subsidiary of Borden. As such, she was insured by the Borden, Inc. Total Family Protection Plan (hereinafter “TFPP”), an ERISA qualified employee welfare benefit plan providing medical benefits for Borden employees. A total of $63,829.30 was paid by TFPP in dental and medical benefits on behalf of plaintiff as a result of the Regatta accident. • .

On or about December 5, 1988, in order to prepare the damage portion of plaintiffs case against Robert J. Woods, Three Rivers Regatta Association, and U.S. Formula One Racing Association, Inc. (hereinafter “the defendants”), attorney Crum contacted Borden TFPP’s administrative offices to obtain information concerning the precise amount of medical benefits paid to date on behalf of plaintiff. An employee of Borden, Mary Redmond, responded to attorney Crum’s request by providing him with a computer print-out of the total medical benefits resulting from the Regatta accident which Borden had paid on behalf of plaintiff as of December 5, 1988.

Thereafter, in the normal course of business, attorney Crum forwarded a report regarding the medical necessity of plaintiffs cervicothoracic brace and a recently incurred bill therefor to Mary Redmond, as Borden’s agent. In the accompanying letter, dated December 12, 1988, attorney Crum advised Redmond that Rothman Gordon could represent Borden’s subrogation interest for one-third of any amount collected on its behalf and that if Borden wished to retain Rothman Gordon for that purpose, an agent of Borden should so confirm in writing.

In response, by letter dated January 26, 1989, a Borden claims adjuster, Janice Paxton, advised Rothman Gordon that “Borden exercises the right to subrogate against any third-party settlements” and also advised that “the thirty-three and one-third percent is an agreeable amount [for Rothman Gordon’s fee] on this subrogation case.” (Reproduced Record, pp. 8a and 177a) (emphasis added). Whereupon, by letter dated January 30, 1989, attorney Crum acknowledged Rothman Gordon’s receipt of the January 26, 1989 letter and reiterated his understanding that the firm was hired to protect Borden’s subrogation interest for the fee of thirty-three and one-third percent, (emphasis added).

In the early part of February 1989, plaintiff signed a reimbursement agreement which had been forwarded by Ms. Paxton to attorney Crum. The agreement provided that plaintiff, as “the beneficiary [of medical and/or dental benefits paid by TFPP] agree[d] that upon receipt of full or partial payment from [a] third party, she would immediately reimburse [TFPP] for the amounts so advanced.” From February 1989 until December 1990, plaintiff continued to receive medical treatment for her ongoing personal injuries and Rothman Gordon prepared her case against the defendants.

Early in 1991, a writ of summons was filed against the defendants for the injuries sustained by plaintiff in the Regatta accident Due to the fact that other parties injured in the Regatta accident had also filed claims against the same defendants, a special conciliation conference was held by the Honorable Judge Murphy on April 18, 1991 to pursue the possibility of settlement in all of the Regatta cases. Attorney Carl Harvison of Rothman Gordon attended that conference in attorney Crum’s stead and advised the court and opposing counsel that Borden’s subrogation interests would have to be protected in any settlement. No settlement was reached that day because the defendants proposed a structured settlement in which plaintiff would receive $70,000.00 initially and monthly payments thereafter but no proposal was made regarding satisfaction of Borden’s claim.

Thereafter, on April 22, 1991, attorney Harvison discussed the settlement conference with an agent of Borden, Donna Stratton, and advised her of defendants’ unacceptable settlement offer. He then asked her, as part of his preparation for the second conciliation conference, “if Borden would consider accepting” a compromise amount based on a structured settlement. Thereafter, Ms. Stratton replied to attorney Harvison that Borden had authorized her to accept a structured settlement consisting of $10,000.00 at the time of settlement, $5,000.00 in 5 years, $5,000.00 in 10 years, and the balance of the amount owed minus attorney’s fees in 15 years.

A second conciliation conference was scheduled for May 9, 1991. On May 6, 1991, attorney Harvison telephoned Ms. Stratton to inform her that pursuant to local rule and a specific request by Judge Murphy, a representative of Borden should be at the May 9 conference. Ms. Stratton, who was without authority to authorize business travel, contacted Eileen Groves, Esquire, in the office of Borden’s General Counsel. On the next day, May 7, 1991, attorney Groves contacted attorney Crum in order to ascertain the reason that Borden’s presence at the conference was required. She testified that this was the first time that she was made aware of the fact that Rothman Gordon represented both plaintiff and Borden in this matter and that upon learning of it, she terminated any further representation of Borden by Rothman Gordon due to her concern over an alleged conflict of interest.

At the May 9 settlement conference, Rothman Gordon attended to represent plaintiffs interest and Donna Stratton, accompanied by newly retained counsel, attended to represent Borden’s interest. All parties reached a settlement. Specifically, Borden agreed to accept a $42,000.00 cash payment in settlement of all medical payments it had made on behalf of plaintiff. The $42,000.00 was to be paid to Borden within 30 days after the conference. Prior to its conclusion, Borden’s representatives left the conference.

Thereafter, the Rothman Gordon attorneys attending the conference advised the court of the firm’s position concerning Borden’s obligation, notwithstanding the May 9 termination of Rothman Gordon, to pay the firm for efforts expended by it to pursue ongoing settlement negotiations from 1989-1991. The Court was informed that Rothman Gordon intended to make a claim against Borden for thirty-three and one-third percent of Borden’s settlement pursuant to the parties’ oral and written contingency fee agreements. Whereupon, as part of its order, the trial court directed that Borden’s $42,000.00 be held temporarily by the Allegheny County Prothonotary’s office until the fee dispute was resolved. Rothman Gordon was directed to proceed with the appropriate claim for attorney’s fees.

On June 5, 1991, the firm filed a Petition to Enforce a Charging Lien, to collect approximately $14,000.00 of the funds on deposit in the Prothonotary’s office. A healing was scheduled for October 23,1991 before Judge Murphy. Shortly before Rothman Gordon had filed its petition, attorney Harvison of Rothman Gordon advised Borden’s attorney, Mr. McCreary, that Rothman Gordon wduld not oppose a motion on behalf of Borden to obtain the $28,000.00 of Borden’s settlement not in dispute which was being held by the Prothonotary. Nevertheless, such a motion was not made until just prior to the October 23, 1991 hearing on Rothman Gordon’s petition.

Following the hearing, Judge Murphy rendered his decision. Finding that because Rothman Gordon had reduced its attorney’s fees to be received from Maria Molitoris to approximately twenty-five percent, fairness dictated that the fee to be received from Borden should likewise be reduced. Moreover, the court concluded -that,, in fairness, Rothman Gordon’s fee should be further reduced by the travel expenses incurred by Stratton and Groves to appear at the hearing on behalf of Borden as witnesses. Therefore, Judge Murphy ordered that the Prothonotary disburse only $9,767.48 of the $14,000.00 on deposit with that' office to Rothman Gordon, and that the remainder, less costs, be released to Borden in the amount of $4,256.23. Subsequently, Borden filed this timely appeal and Rothman Gordon has cross-appealed.

On appeal, Borden has provided this Court with several arguments as to why the trial court erred in upholding Roth-man Gordon’s claim for attorney’s fees. First, Borden claims that “the solicitation [of representation] and representation agreement with Rothman Gordon was void as against public policy and not valid” (Borden’s Brief, p. 11) in that the solicitation was improper under Rule 7.3 and the representation of “multiple clients” was a “conflict of interest” which violated Rule 1.7(a) of the Rules of Professional Conduct. Secondly, Borden argues that “a material mistake in the terms of the agreement between Borden and Rothman Gordon ... invalidated the agreement [between them]” because the firm misunderstood the nature of its representation of Borden and mistakenly pursued subrogation rather than “reimbursement.” Further, it is claimed that “Rothman Gordon materially altered the terms of the [settlement] agreement, .resulting] in a breach of the [representation] agreement.” Finally, Borden maintains that the trial court “improperly awarded attorney’s fees for an Attorney’s Charging Lien when there was no demand and [subsequent] refusal [of payment] or satisfaction of procedural prerequisites.” (Borden’s Brief, p. 21). Roth-man Gordon contends, and we agree, that Borden’s claims are without merit.

First, we conclude that Rothman Gordon’s representation of both plaintiff and Borden in the Molitoris matter did not create a conflict of interest. All documents transferred between the parties during the pendency of this matter, including attorney Groves’ letter confirming Rothman Gordon’s termination, utilized either the term “subrogate” or “subrogation” in referring to its interest in the underlying litigation against the defendants and Rothman Gordon’s representation thereof. Furthermore, all oral communications between the parties up until Rothman Gordon’s termination on May 7, 1991 referred to Borden’s subrogation interest.

Black’s Law Dictionary instructs us that subrogation is the “substitution of one [entity] in the place of another with reference to a lawful claim, demand, or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies or securities.” Black’s Law Dictionary 1279 (5th ed. 1979). Moreover, as this Court noted in Daley-Sand v. West American Insurance Co., 387 Pa.Super. 630, 564 A.2d 965 (1989):

When an insurer pays a [medical] claim ..., it is actually paying the debt of the tortfeasor. The insurer is only secondarily liable; it is the tortfeasor who is primarily liable. Once the insurer has paid a claim to the insured, it may then stand in the shoes of the insured and assert the insured’s rights against the tortfeasor. The right to stand in the insured’s shoes and to collect from the tortfeasor once it has paid the insured an amount representing the tortfeasor’s debt is called the insurer’s right to subrogation.
The right of subrogation may be contractually declared or founded in equity, but even if contractually declared, it is to be regarded as based upon and governed by equitable principles. It has often been said that the equitable doctrine of subrogation places the subrogee in the precise position of the one to whose rights and disabilities he is subrogated, (citations omitted).

Id. at 638-639, 564 A.2d at 969-970 (emphasis added).

In the instant case, the subrogation interest of Borden was identical to, and therefore did not conflict with, the interest of Maria Molitoris in recovering against the various defendants named in the underlying personal injury litigation. Furthermore, we note that in Allstate Insurance Company v. Clarke, 364 Pa.Super. 196, 527 A.2d 1021 (1987), this Court implicitly concluded that an attorney’s representation of both an insured and an insurer’s subrogation claim concerning the insured was not a conflict of interest. Rather, this Court noted the practical necessity, in cases such as the instant one, of an insurance carrier joining in an insured’s recovery attempts by having the same attorney represent both the insured and his insurer’s subrogation interest. This Court stated, as follows:

We do not think the insurer can create a practical conflict of interests by asserting a subrogation right to proceeds from an insured’s action for damages and then refusing to grant the insured’s attorney authority to represent the subrogation interest as well. Nor do we think that such refusal warrants excusal of the subrogee insurer’s equitable duty to share in a proportionate share of the costs in attaining such recovery.

Id. at 207, 527 A.2d at 1027. We therefore conclude that Rothman Gordon’s representation of both Maria Molitoris and her insurer’s subrogation interest did not violate public policy.

Next, Borden contends that it is not entitled to pay attorney’s fees incurred in pursuit of settlement in the Molitoris matter because Rothman Gordon misunderstood the nature of Borden’s interest in the matter to be one of “subrogation,” when in reality it was one of “reimbursement.” However, there is absolutely no support for this contention in the record. A review of both the documentary and testimonial evidence before the trial court negates Borden’s assertion that it viewed the Molitoris matter as a “reimbursement” action as opposed to a “subrogation” action. As noted above, all of the documents transferred between the parties for over two years reflect a retention of Rothman Gordon to seek recovery of Borden’s subrogation interest. Specifically, agents of Borden sent letters to the law firm on three separate occasions, January 26, 1989, December 31, 1990, and May 7, 1991, characterizing Borden’s claim as a “subrogation” interest. The record is devoid of any evidence that Rothman Gordon was retained for any purpose other than pursuit of Borden’s subrogation interest. Borden, therefore, must pay the attorney’s fees rightfully earned by Rothman Gordon as a result of Borden’s retention of the law firm.

Borden also claims that “Rothman Gordon materially altered the terms of the Borden settlement agreed upon with the Court on May 9, 1991 [such that Borden suffered] a material loss” by discussing the issue of attorney’s fees with the Court after Borden’s representatives left the conference. The transcript of the hearing on Rothman Gordon’s petition reveals that at the settlement conference on May 9, 1991, Borden “had already agreed to resolve [its] particular aspect of the [settlement], and [the trial court concluded that] there was no need for [Borden’s representatives] to be there to witness any bloodshed that was going to occur between the Court and Rothman Gordon” regarding fees. (Reproduced Record, pp. 125a and 126a). We do not believe that the Court’s conduction of a discussion with Rothman Gordon after Borden’s representatives chose to leave the conference regarding Rothman Gordon’s intention to file the instant petition can be used as a reason to withhold the attorney’s fees rightfully earned by Rothman Gordon in this matter. Nor, do we believe that this discussion in any way “altered” the settlement Borden reached with the tortfeasors in the Molitoris matter.

Finally, Borden argues that Rothman Gordon is not entitled to receive attorney’s fees for representing Borden’s subrogation interest because “at no time prior to the filing of the petition did Rothman Gordon submit a bill for its services nor did Borden reject such a bill” and because Rothman Gordon “failed to satisfy the prerequisites of a Charging Lien under Pennsylvania .. . law.” (Borden’s Brief, p. 23). The law in this Commonwealth regarding charging liens was reiterated by the Commonwealth Court in Brandywine Savings and, Loan Assoc. v. Redevelopment Authority of Chester County, 100 Pa.Cmwlth. 294, 514 A.2d 673 (1986), alloc. denied, 515 Pa. 586, 527 A.2d 545 (1987), as follows:

[BJefore a charging lien will be recognized and applied, it must appear (1) that there is a fund in court or otherwise applicable for distribution on equitable principles, (2) that the services of an attorney operated substantially or primarily to secure the fund out of which he seeks to be paid, (3) that it was agreed that counsel look to the fund rather than the client for his compensation, (4) that the lien claimed is limited to costs, fees or other disbursements incurred in the litigation by which the fund was raised, and (5) that there are equitable considerations which necessitate the recognition and application of the charging lien. [Recht v. Clairton Urban Redevelopment Authority, 402 Pa. 599, 608, 168 A.2d 134, 138-139 (1961) ].

Id. at 298, 514 A.2d at 674-675.

In the instant case, there is a fund “applicable for distribution on equitable principles” which was created primarily through the efforts of Rothman Gordon’s representation of Borden’s subrogation interest. Indeed, attorneys Crum and Harvison pursued ongoing settlement negotiations until their termination by Borden just two days before Borden settled its claim for $42,000.00. Furthermore, pursuant to the contingent fee agreement existing between the parties, Roth-man Gordon’s right to recover a fee was inexorably linked to satisfaction of Borden’s subrogation interest. Had there been no recovery by Borden, Rothman Gordon could not have looked to Borden for compensation. And, finally, as noted above, it has been held in this Commonwealth that a “subrogee insurer [has an] equitable duty to share in a proportionate share of the costs in attaining such recovery.” Clarke at 207, 527 A.2d 1021 at 1027. Therefore, we conclude that the Recht requirements delineated above were met by Rothman Gordon in the instant case.

We turn now to Rothman Gordon’s cross-appeal. Rothman Gordon’s position is that the trial court abused its discretion in establishing the amount of the attorney’s charging lien at twenty-five percent rather than thirty-three and one-third percent of the amount Borden received at settlement. We note that:

[a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.

Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 103 (1982). In the instant case, there is no evidence that the trial court’s conclusions were manifestly unreasonable or the result of partiality and therefore, given the factual circumstances of this case, we find that the trial court’s reasons for calculating the amount of the lien do not constitute an abuse of discretion. Furthermore, we note that at oral argument, counsel for Rothman Gordon indicated to this Court that the firm would willingly accept the amount established by the trial court if this Court were to affirm the trial court’s order.

Therefore, for all of the foregoing reasons, we decide that the trial court did not err in granting Rothman Gordon’s petition. We affirm the trial court’s order disbursing the relevant funds on deposit with the Allegheny County Prothonotary as follows: $9,767.48 to Rothman Gordon and $4,256.23 to Borden.

Order affirmed.

      . We note that a complaint was drafted but never filed in this action because the matter proceeded to settlement.

      . We note that Borden maintains that its representatives were “excused” by the Court from further attendance at the conference. However, Rothman Gordon contends that Borden's representatives unexpectedly departed from the courtroom without advising the court of an intention to do so.

      . We note that Rothman Gordon argues that its claim for attorney's fees is not based on an agreement but upon quantum meruit for work performed by Rothman Gordon for the benefit of Borden prior to the termination of the former by the latter.

      . We note that in the Clarke case, unlike the instant case, no agreement was in place between the insurer and the insured’s attorney regarding that attorney’s representation of the insurer’s subrogation interest. Nevertheless, this Court required the insurer to share in the attorney's fees associated with attaining recovery against the tortfeasors.
      In the present case, there 1 vas an agreement between representatives of Borden and Rothman Gordon which specifically stated that Rothman Gordon was to pursue Borden’s subrogation interest. Therefore, Roth-man Gordon stands in a better position in this case to receive attorney fees than did the insured's attorney in Clarke.

      . Borden also argues that the representation was void as against public policy due to Rothman Gordon's alleged violations of Rules 1.7(a) and 7.3 of the Pennsylvania Rules of Professional Conduct. These arguments are completely meritless.
      In Maritrans GP, Inc. v. Pepper, Hamilton and Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992), our Supreme Court reaffirmed the principle stated in the Preamble to the Rules of Professional Conduct, that neither the rules, nor the Code of Professional Responsibility previously in effect, per se create a legal cause of action in clients or other private parties for a violation thereof. Rather, our high Court held, a client or private party may bring an action to enjoin an attorney from breaching his common law fiduciary duty to avoid conflicts of interest. We have already concluded that no conflict of interest existed in the instant case and therefore, we conclude that Rothman Gordon did not breach any common law duty which would support Borden’s arguments.

      . We note that Borden had two alternative courses of action to recover money it had paid for Molitoris' medical benefits as a result of the Regatta accident. First, Borden could have elected to sue Molitoris directly pursuant to the reimbursement agreement signed by her after she had collected damages from the defendant tortfeasors. Or, secondly, Borden could have pursued its subrogation interest contemporaneously with Molitoris’ pursuit of her own damages through ongoing settlement negotiations with the defendant tortfeasors. Borden chose the latter and must now pay the costs associated with its choice.

      . Borden claims that Rothman Gordon's failure to present a bill for services rendered to Borden precludes an award of attorney's fees in the instant case. However, no legal authority has been offered by Borden to support this contention. Furthermore, uncontradicted testimony in the record reflects that "Borden told [Rothman Gordon] that they weren’t going to pay anything [the firm] sent to them anyway.” (Reproduced Record, p. 123a). As we have noted, enforcement of an attorney’s charging lien must be governed by equitable principles and in the present appeal, equity demands that Borden pay its share of the cost associated with attaining its $42,000.00 recovery, regardless of whether Rothman Gordon formally presented a bill for services which Borden had already advised Rothman Gordon it would not honor. See: Allstate Insurance Co. v. Clarke, 364 Pa.Super. 196, 527 A.2d 1021 (1987).


source: Caselaw Access Project

author: TAMILIA, Judge: BECK, Judge,

license: Public Domain

text:
    618 A.2d 992
    COMMONWEALTH of Pennsylvania v. Ricky Lee AIKINS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 20, 1991.
    Filed Jan. 5, 1993.

      Robert A. Cinpinski, Kittanning, for appellant.
    Frederick L. John, II, Asst. Dist. Atty., Kittanning, for Com., appellee.
    Before BECK, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Appellant, Ricky Lee Akins, takes this appeal from judgment of sentence imposed February 26, 1991. The issue in this case is whether a conviction for burglary is precluded by a prior conviction on an indirect criminal contempt charge, arising out of violation of a Protection From Abuse (PFA) Order, when the burglary was committed on the premises protected by the PFA Order.

On December 13, 1984, following a hearing on a PFA Act petition filed due to marital difficulties between appellant and his estranged wife, an Order was entered giving Charlene Akins (wife) exclusive possession of the parties’ marital residence. On March 5, 1985, police were summoned to the residence (a mobile home) where they discovered appellant underneath the home attempting to splice into Charlene’s telephone wires. Appellant was charged with interception of oral communications, burglary and criminal trespass. Charlene then filed a petition for contempt arising from appellant’s violation of the PFA Order. At the hearing on May 17, 1985, appellant was found to be in indirect criminal contempt of the PFA Order and sentenced to serve six (6) months in jail. Prior to trial on the criminal charges, appellant filed a motion to dismiss on double jeopardy grounds. The trial court denied the motion and following trial and conviction, appellant was sentenced on February 26, 1991 to serve nine (9) months to three (3) years imprisonment for burglary. This appeal followed.

In Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985), our Supreme Court held “prosecution on the substantive criminal charge after a finding of contempt in violating the injunction against abuse does not violate double jeopardy.” Id. at 514, 486 A.2d at 370. However, the United States Supreme Court recently articulated changes in double jeopardy jurisprudence in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). The Grady Court held:

[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charges in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted____ The critical inquiry is what conduct the state will prove, not the evidence the state will use to prove that conduct.

Id. at 521, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. The test as to whether contempt is civil or criminal turns on whether the person can escape imprisonment by doing some act of compliance to purge the contempt (civil) rather than be sentenced to punish the wrongdoing without redemption (criminal). See Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).

We find the rationale recently employed by this Court in Commonwealth v. Warrick, 415 Pa.Super. 385, 609 A.2d 576 (1992) (Warrick II), is equally applicable to this case although the facts are different. There a prisoner, after judgment of sentence was entered, ran from the court room to avoid incarceration. After capture, he was immediately returned to the court, where, in a summary procedure, he was sentenced to a term of six (6) months on the direct criminal contempt. Subsequently, he was charged, convicted and sentenced to imprisonment for escape. Our Court initially reviewed that conviction in Commonwealth v. Warrick, 344 Pa.Super. 611, 497 A.2d 259 (1985) (Warrick I), and held double jeopardy was not implicated and that the contempt did not bar War-rick’s subsequent trial for escape. Most recently in Wamck II, the double jeopardy issue was again reviewed by this Court in light of the Grady double jeopardy ruling handed down subsequent to decision in Warrick I. We held in Warrick II that Grady was inapposite to that case because a summary criminal contempt is by its nature a different type of offense than other crimes, e.g. escape, and continued to rely on Allen, supra. Allen rested on the fact that criminal contempt consists of acts tending to lessen the dignity or impede the process of the court, thus criminal contempt proceedings are instituted to vindicate the authority of the court and must be viewed as a necessary tool for deterring abuse of the judiciary. This function demands that a judge not be required to consider the consequences of foreclosing subsequent criminal prosecution when sanctioning a contemnor for his actions. Id.

In Warrick II we pointed out that “Grady [n. 7] explicitly recognizes that an exception to its double jeopardy analysis may exist where the government is unable to proceed on the more serious of two charges for various administrative or procedural reasons.” Warrick II, supra at 389, 609 A.2d at 578. Also, the United States Supreme Court has severely limited the scope of Grady by its ruling in United States v. Felix, — U.S. -, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). In Felix, the Supreme Court found no double jeopardy when two separate prosecutions were brought for conspiracy and the conduct upon which the substantive offenses were brought. It held that “a mere overlap in proof between two prosecutions does not establish a double jeopardy violation” Id. at -, 112 S.Ct. at 1382, 118 L.Ed.2d at 34. The Warrick II Court also found that “[ujntil either the Pennsylvania Supreme Court or the United States Supreme Court clearly indicates that a conviction of direct criminal contempt triggers double jeopardy protections for additional criminal charges based on the same conduct, we cannot grant the type of relief sought by appellant.” Id. at 392, 609 A.2d at 580. Although the case before us involves indirect criminal contempt, we find the Warrick II Court’s reasoning apt.

Applying the above principles to this case, it is clear beyond question that Grady does not and was never intended to prevent the effective implementation of the PFA Act in imposing contempt penalties, albeit they are criminal in nature, and involve the same facts as a contemporaneous substantive offense, when the alternative is to deny prosecution of the substantive offense. Grady could not make it more clear, as reaffirmed in Felix, that double jeopardy may not deny the right to prosecute the substantive offense because procedural or administrative exigencies require more expeditious handling of the summary offense. This was correctly interpreted in Warrick II to require the prosecution of the direct criminal contempt faced by the court long before the escape charge could be prosecuted. It applies just as clearly to prosecution of the indirect criminal contempt of a PFA violation before the burglary charges could be prosecuted in this case. PFA legislation was enacted to curb domestic violence which has taken a tremendous toll on women and children, particularly, in our society. This legislation requires that in several areas we apply exigent procedures and measures which are usually violative of due process. These involve matters such as notice, opportunity to be heard, temporary dispossession of one party to marital or entireties property, summary support and emergency custody procedures, and hearings in the domestic relations division rather than criminal division of the criminal contempt proceedings. This has been done, supported by rulings as to its constitutionality, because it is deemed necessary to do so to protect the victims of abuse from serious harm and/or loss of life. In this case, to wait until the usual procedures, which are circumscribed by criminal due process requirements to the fullest, for prosecution for burglary are implemented and the case tried on the contempt with the burglary would mean a delay of one to two years in some judicial districts. By then the victim could be dead, as a burglary charge, with overcrowded prisons would surely result in early release until trial. The contempt violation of the PFA Order, however, can be handled immediately and expeditiously to serve its stated purpose, to protect the life and safety of the victim. The contempt action and proceeding protects not only the dignity and expectation of the court to assure the orderly administration of justice, but also protects the life of the victim, which society has come to recognize requires the extraordinary procedures employed under the PFA Act.

Logic compels the distinction between these cases and the usual case implicated by the double jeopardy rulings. As Allen has stated in analyzing United States v. Mirra, 220 F.Supp. 361, (S.D.N.Y.1963):

‘Assume that Mirra’s projectile had received more accurate a propulsion and had scored on its intended target—the Assistant United States Attorney. And assume further the grisly and morbid fact that the Assistant United States Attorney had sustained an injury which ultimately proved fatal. To sustain Mirra’s claim would, in effect, grant a summary contemnor immunity from a homicide prosecution—an unconscionable result. Merely to state the case suffices to reveal what must perforce be the answer to Mirra’s theory.’
[Mirra ] at 366. We hold that the same implied answer, no double jeopardy, is required in this case.

Allen, supra at 514, 486 A.2d at 370, quoting Mirra, supra (emphasis added).

Justice Larsen, in his Concurring Opinion in Allen, addresses the preventive nature of the PFA as follows:

I join the majority opinion. I write separately to emphasize that the contempt provisions of the Protection From Abuse Act are available and intended not only to punish an abusive spouse for past abusive behavior, but are also available and intended to physically restrain (i.e., jail) an abusive spouse in order to prevent future occurences [sic] of abuse. There is much peace of mind in knowing that the abuser cannot reach the object of the abuse.

Id. at 516, 486 A.2d at 371 (footnote omitted). In this case, without the immediate contempt action against the contemnor, exacerbated by the arrest, upon release from jail awaiting the burglary trial, the next trip to the victim’s home could have been fatal to her. If ever double jeopardy does not apply, it is in this case or cases involving PFA proceedings in general. Our decision today is in accord with, and guided by, our recent decision in Commonwealth v. Manney, 421 Pa.Super. 244, 617 A.2d 817 (1992), a case with similar facts and the same resolution.

Based on the foregoing, we affirm the trial court’s judgment of sentence and hold there is no basis upon which this panel can overrule Allen or Warrick, and that Grady has not worked a fundamental change in the manner we interpret the double jeopardy provisions of the Federal and State Constitutions in relation to PFA contempt actions.

Judgment of sentence affirmed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting.

In the instant case appellant Ricky Lee Aikins challenges his convictions for burglary and criminal trespass on the ground that the prosecution was based on the same conduct which underlay a previous conviction for indirect criminal contempt for violating a Protection from Abuse order. Appellant argues that the subsequent burglary and criminal trespass prosecution violated his constitutional guarantee against double jeopardy. Based on the recent United States Supreme Court pronouncement in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which I find to be dispositive, I conclude that the subsequent criminal conviction was barred on double jeopardy grounds. Therefore, I would reverse the judgments of sentence and discharge appellant.

Appellant and his estranged wife, Charlene Aikins, were married in 1979 and separated in 1984. As a result of escalating marital difficulties, Charlene Aikins filed a petition under the Protection from Abuse Act and, following a hearing, an order was entered on December 13, 1984. Pursuant to the court’s order, Charlene Aikins was granted exclusive possession of the marital residence, which was a mobile home in Apollo, Pennsylvania.

On March 5, 1985, the police were summoned to Charlene Aikens’ trailer where they discovered appellant underneath the mobile home. He was there with the apparent intention of intercepting his wife’s telephone calls. Appellant had connected a telephone receiver to his wife’s telephone system by splicing wires and attaching the phone to the wires beneath the trailer. The phone, wires and alligator clips were found under the trailer along with appellant when the police arrived. The area entered by appellant was used by the family for storage and was surrounded by skirting which was secured to the trailer by screws.

Appellant was charged with interception of oral communications, burglary and criminal trespass. In addition, Charlene Aikins filed a petition for contempt as a result of appellant’s violation of the protection from abuse order. A hearing on the contempt petition was held on May 17, 1985. Appellant was found in indirect criminal contempt of the protection from abuse order and was sentenced to serve six months in jail. Prior to trial on the criminal charges, appellant filed an omnibus pretrial motion seeking dismissal on double jeopardy grounds. The trial court refused and found that “punishment for contempt for violation of a Protection from Abuse Order does not contravene the double jeopardy provisions of the constitution ... so as to prevent a subsequent prosecution for Burglary and Criminal Trespass based on essentially the same •facts as the finding of contempt for violation of the Protection from Abuse Order.”

Appellant was tried on February 12-13, 1986, and convicted by a jury of burglary, criminal trespass and interception of oral communications. Sentencing occurred on February 26, 1991. The court imposed a nine month to three year term of imprisonment for burglary. This appeal followed.

In finding that the criminal prosecution for burglary was not barred by the previous indirect contempt conviction, the trial court relied on the Pennsylvania Supreme Court case, Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985). The Commonwealth, too, in its brief to this court relies on Allen for the argument that a previous conviction for indirect criminal contempt “never bars subsequent criminal charges based wholly or partially on the same conduct”. Were it not for significant recent changes in double jeopardy jurisprudence, I would have to agree that Allen would permit the instant burglary prosecution despite the previous contempt conviction. However, in light of the United States Supreme Court’s most recent articulation of the standard by which double jeopardy claims must be judged, Grady v. Corbin, supra, I am constrained to find that Allen is not controlling and that appellant’s burglary conviction must be reversed.

Allen’s fact pattern largely resembles the instant case. The defendant in Allen had been ordered by the court, by means of a protection from abuse order, to refrain from physically abusing, striking or harassing his estranged wife. While the order was in effect the defendant in Allen violated it by forcibly entering his wife’s home and assaulting her. As a result of these actions, a criminal complaint against defendant was filed on charges of simple assault and trespass. Wife also petitioned the court to hold defendant in contempt of the protection order. Defendant was arraigned on the contempt charge, failed to post bail and remained in jail for the next nine days, when the contempt hearing was held. After the hearing, defendant was found in contempt of the protection order and fined. Several days later, the defendant in Allen was also charged with raping his wife during the same criminal episode described above. All criminal charges were consolidated. The defendant moved to quash the three criminal informations on the ground that the subsequent prosecution was barred by double jeopardy. The trial court denied the motion. The Superior Court affirmed the trial court on the charges of criminal trespass and rape, and reversed on simple assault finding that double jeopardy barred the prosecution of the latter offense.

The Supreme Court found that the defendant could be tried on all three offenses and that double jeopardy would not be offended. Preliminarily, the Supreme Court rejected the Commonwealth’s argument that the contempt proceeding was not criminal in nature and that, therefore, the double jeopardy protection was not implicated. The Supreme Court unequivocally held in Allen that “the finding of contempt involved a proceeding which was criminal in nature, and is thus a proceeding with implications for double jeopardy analysis.” Commonwealth v. Allen, 506 Pa. at 511, 486 A.2d at 368.

The analysis that the Supreme Court used to determine whether successive prosecutions violated the double jeopardy guarantee was based on the then-current standard for evaluating double jeopardy claims. Citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court concluded that when the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one for double jeopardy purposes is whether each provision requires proof of a fact which the other does not. Commonwealth v. Allen, 506 Pa. at 510-11, 486 A.2d at 368. Applying this test, the Supreme Court had no trouble finding that “the charges of rape and criminal trespass are not barred by jeopardy because they both involve proof of a fact which the finding of contempt does not.” The court concluded that “[r]ape and criminal trespass ... are not merely separate offenses in one particular or other, but are wholly different offenses from indirect criminal contempt.” Id. at 511-12, 486 A.2d at 368-369. The Supreme Court found the analysis with respect to the simple assault and contempt more troublesome, presumably because the contempt involved an assault and because the protection order enjoined Allen from engaging in physically abusive conduct. Nevertheless, the Supreme Court found that “the indirect criminal contempt proceeding involves elements not necessary to a finding of simple assault, even though assaultive behavior was involved in the contempt.” Id. at 514, 486 A.2d at 370 (footnote omitted). The Allen court concluded:

Defendant could have wilfully violated the court order by any number of actions, many of which would not have involved assault, or even physical contact or presence. Moreover, the contempt order’s purpose was protection of the court’s dignity and enforcement of its order, not punishment for criminal assault.....
We hold, therefore, that under the Blockburger test, indirect criminal contempt and simple assault do contain the requisite “separate elements” and vindicate different interests. Therefore, prosecution on the substantive criminal charge after a finding of contempt in violating the injunction against abuse does not violate double jeopardy.

Id. (citations omitted) (emphasis added).

In 1990, the United States Supreme Court decided Grady v. Corbin, supra, and altered the approach this court must take toward the resolution of double jeopardy issues. Briefly, the charges in Grady v. Corbin arose from an automobile accident in which the defendant, Thomas Corbin, received two traffic tickets after his car crossed the center line of the highway, striking two oncoming cars. The accident caused the death of one person and serious injuries to another. The traffic citations charged Corbin with driving while intoxicated and failing to keep to the right of the median.

Shortly after the accident the district attorney’s office began a grand jury investigation into possible homicide charges against Corbin. Nevertheless, in the meantime, Corbin appeared before a town justice and pled guilty to the traffic offenses. The judge was unaware of the fatality or the pending homicide investigation when he accepted the pleas and imposed sentence which consisted of fines and license revocation. Two months later, the. grand jury indicted Corbin on charges of reckless manslaughter, second-degree vehicular homicide, criminally negligent homicide, and third degree reckless assault.

Corbin challenged the indictment on double jeopardy grounds. The New York Court of Appeals found that because the state conceded that the prosecution for homicide and assault would rely upon the prior traffic offenses to establish elements of the greater offenses, double jeopardy barred the subsequent prosecution. The state appealed to the United States Supreme Court, which affirmed.

The Court stressed the dangers inherent in successive prosecutions and concluded that the application of the traditional Blockburger analysis alone would not sufficiently protect a defendant against the burdens of multiple trials. Thus, the Court articulated an expanded, two-prong approach to the resolution of double jeopardy claims. The Court explicitly stated that the “subsequent prosecution must do more than merely survive the Blockburger test.” Grady v. Corbin, supra, 495 U.S. at 521, 110 S.Ct. at 2087, 109 L.Ed.2d at 564. The further inquiry mandated after Grady v. Corbin was explained by the Court as follows:

[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted____ The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.

Id. (footnote omitted).

It is clear, therefore, that after Grady v. Corbin a new “constitutional mandate” regarding double jeopardy protection is applicable. See Commonwealth v. Labette, 397 Pa.Super. 179, 191, 579 A.2d 1315, 1321 (1990). See also Commonwealth v. Yingling, 407 Pa.Super. 151, 595 A.2d 169 (1991); Commonwealth v. Adams, 406 Pa.Super. 493, 594 A.2d 727 (1991); Commonwealth v. Butt, 406 Pa.Super. 526, 594 A.2d 743 (1991); Commonwealth v. Kline, 405 Pa.Super. 412, 592 A.2d 730 (1991). Precedent which resolved double jeopardy challenges based on a Blockburger analysis alone, like Commonwealth v. Allen, can no longer dictate the result when this constitutional challenge is raised.

Before I begin to analyze the instant case under the current double jeopardy standard I first put to rest any argument that because this case involves a contempt proceeding pursuant to the Protection from Abuse statute, an exception to double jeopardy protection somehow exists. This clearly is not the case. It is beyond dispute that indirect criminal contempt is criminal in nature. The sanctions imposed are determinate and unconditional and intended as punishment to vindicate the authority of the court. The term of imprisonment imposed is not dependent upon future compliance with the court’s order. The critical question is “not whether the contemnor is physically required to set foot in a jail but whether the contemnor can avoid the sentence imposed on him, or purge himself of it, by complying with the terms of the original order.” Hicks v. Feiock, 485 U.S. 624, 635 n. 7, 108 S.Ct. 1423, 1431 n. 7, 99 L.Ed.2d 721, 733 n. 7 (1988). See also Vito v. Vito, 380 Pa.Super. 258, 551 A.2d 573 (1988); Colbert v. Gunning, 368 Pa.Super. 28, 533 A.2d 471 (1987). Constitutional protections accompany this criminal proceeding, including the guarantee against double jeopardy. Commonwealth v. Allen, supra; Vito v. Vito, supra.

In fact the United States Supreme Court has stressed:

Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes: “These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.”
Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical—protection of the institutions of our government and enforcement of their mandates.

Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481-82, 20 L.Ed.2d 522, 528 (1968).

It is also important to note, particularly for purposes of double jeopardy analysis, the crucial distinctions between direct and indirect criminal contempt. This is particularly so because a recent decision of this court has explored the applicability of double jeopardy principles in the direct contempt context and found Grady v. Corbin inapplicable. Commonwealth v. Warrick, 344 Pa.Super. 611, 497 A.2d 259 (1985). In part, the Warrick court found an exception to Grady in the direct contempt context due to what it described as “[t]he necessity of providing a court with the immediate means to protect its dignity and its ability to properly conduct judicial proceedings.... ” I agree that this has long been held to be a distinguishing feature between direct and indirect contempt and has served to place direct contempt out of the double jeopardy context. While the rationale of Warrick excludes double jeopardy considerations in cases of direct criminal contempt, the rationale of the instant case clearly makes double jeopardy considerations necessary in cases of indirect criminal contempt.

As discussed above, indirect criminal contempt occurs outside the presence of the court. Direct contempt is committed in the court’s presence. The supreme court has explained the distinction between direct and indirect contempt as follows:

Direct contempt is obstruction by conduct, word or deed in the presence of the court and is a summary offense. It may be sanctioned as civil or criminal contempt depending upon the purposes sought by the court. It is summary because its proofs are evident; the authority and orderly process of the court are directly confronted upon its open record and the evidence is plain and usually self-accusing.
Indirect contempt is obstructive conduct committed beyond the court’s presence. Such conduct is not self-evident or self-accusatory as when one refuses to do a thing and proof of its commission is required. Therein lies the main difference between contempt in the court’s presence and conduct beyond. When one is charged with indirect contempt those charging such contempt are put to the usual proofs required to convict for any charge, including the right to trial by jury. This is so because the court has no direct, immediate proof of something beyond its immediate view.

Crozer-Chester Medical Center v. Moran, 522 Pa. 124, 130-31, 560 A.2d 133, 136 (1989).

Thus, in cases of direct criminal contempt, because the court is personally possessed of all the facts necessary to conclude that a contempt has occurred in its presence, the court can impose summary punishment. No notice is given, no charges are filed and no trial is held. As I noted above, indirect criminal contempt proceedings are accompanied by the same procedural safeguards normally applicable to criminal trials and are adversarial in nature. Therein lies the critical distinction for fulfilling the purposes of the double jeopardy clause. For these reasons, courts which have been asked to decide whether the imposition of sanctions following a direct contempt has implications for double jeopardy have found that double jeopardy does not bar subsequent prosecutions stemming from the same conduct.

For example, in United States v. Mirra, 220 F.Supp. 361 (S.D.N.Y.1963), the defendant flung the witness chair upon which he had been sitting at the Assistant United States Attorney prosecuting the case. The trial court summarily held Mirra in contempt of court “[f]or committing such a violent outrage upon the dignity and decorum of the court.” 220 F.Supp. at 362. Shortly thereafter Mirra was indicted for assaulting a federal officer, based upon the chair-throwing episode. Mirra challenged the indictment, arguing that the intended assault prosecution and the direct contempt were based on the same incident and that he was being prosecuted twice for the same offense. The district court, in a decision which has since served as a guidepost for subsequent resolution of this issue, concluded that the defendant’s argument must fail. First, the court stressed the significance, indeed necessity, of the direct contempt power. Without it, “courts would find it most difficult to control the disorderly and the violent who respect neither the laws enacted for the vindication of public and private rights nor the officers charged with the duty of administering them.” Id. at 364-365. Accordingly, the district court found it inconceivable that “judges could become ineffectual in restoring judicial decorum for fear that a contempt conviction would raise a constitutional bar to a subsequent prosecution of the same act.” Id. at 365-366.

Moreover, and more importantly for purposes of the double jeopardy discussion, the Minxi court found that “a criminal prosecution arising out of and subsequent to summary contempt conviction does not offend the policy underlying the protection against Double Jeopardy.” Id. at 366. The double jeopardy protection seeks to avoid harassment of an accused through successive trials and the compelled necessity of having to marshall the resources in his defense more than once for the same criminal act. However, the Mirra court concluded that:

Successive trials are not involved because the effective remedy against a contempt committed in the court’s presence is for the court immediately and summarily to punish the contumacious conduct.... And since an adversary type proceeding does not precede the swift imposition of a summary contempt conviction, a criminal prosecution on a charge arising out of the contumacious conduct is the first trial-type harassment to which the contemnor is made subject. In the present posture of the law, a rebellious person does not have the option, and wisely so, of having the issue of his alleged contumacy determined by a trial-type hearing..... [T]he summary contemnor is not subjected to the harassment which the Double Jeopardy protection seeks to prevent.

United States v. Mirra, 220 F.Supp. at 366.

Many other courts have adopted a similar approach. For instance, in United States v. Rollerson, 449 F.2d 1000 (D.C.Cir.1971), Chief Judge Bazelon adopted the Mirra analysis and found that a defendant who was summarily punished for direct contempt for throwing a water pitcher at the prosecutor could later be prosecuted for assault as a result of the same act. The court concluded, based on the above-quoted language from Mirra that: “The contempt proceeding did not amount to a separate hearing or proceeding of the kind which invokes the Double Jeopardy Clause.” United States v. Rollerson, 449 F.2d at 1004-1005. See also People v. Totten, 118 Ill.2d 124, 113 Ill.Dec. 47, 514 N.E.2d 959 (1987) (prosecution for aggravated battery following and arising out of adjudication for direct criminal contempt when defendant struck the state’s attorney at sentencing, did not offend double jeopardy clause); People v. Heard, 208 Ill.App.3d 278, 153 Ill.Dec. 46, 566 N.E.2d 896 (1991) (defendant, who was held in direct criminal contempt for representing himself to be his brother, could subsequently be prosecuted for obstructing justice without violating double jeopardy protection).

Thus, there clearly is precedent and persuasive rationale to conclude that the double jeopardy protection is not brought into play in cases of penalties imposed for direct criminal contempt. The same cannot be said for indirect criminal contempt, particularly in light of Grady and the principles announced therein.

In addition, it cannot be argued successfully that the Protection from Abuse Act reflects the legislature’s intention to permit successive prosecutions when criminal charges arise from conduct which also constitutes a violation of a protection order. While I do not dispute the salutary purposes of and genuine need for the measures of the protection from abuse statute, I also stress that the legislature cannot, via statutory enactment, abrogate constitutional double jeopardy protection.

As the foregoing discussion makes plain, in order to survive the double jeopardy test announced in Grady v. Corbin, supra, it is insufficient to conclude, as the trial court did here, that the offenses of indirect criminal contempt and burglary are not the same offense because each requires proof of a fact not required by the other. Instead, the focus must be on the conduct underlying the contempt conviction and whether the Commonwealth necessarily relied on the same conduct to prove the burglary.

In the instant case it is clear that the conduct which constituted the violation of the protection order and was the basis for the contempt conviction, i.e. the knowing and unauthorized entry onto the trailer in the exclusive possession of Charlene Aikens, is the same conduct upon which the Commonwealth depended to prove essential elements of the burglary offense. This fact is undisputed by the trial court and the Commonwealth. Thus, under Grady v. Corbin, supra, I conclude that double jeopardy barred the burglary prosecution because in order to prove the burglary the Commonwealth established conduct which also constituted the previously convicted offense.

Unless otherwise indicated in this chapter, a proceeding under this chapter shall be in accordance with applicable general rules and shall be in addition to any other available civil or criminal remedies.

Our research has revealed several cases from other jurisdictions which have reached the same conclusion in essentially similar fact patterns. In State v. Magazine, 302 S.C. 55, 393 S.E.2d 385 (1990), the defendant was convicted of aggravated assault after he had been sanctioned for the same conduct by way of a criminal contempt conviction for the violation of a protection order issued by family court. Relying on Corbin, the Supreme Court of South Carolina held that the State proved the same conduct at defendant’s assault trial as had been used to prove contempt during the previous proceeding in family court. Therefore, the court concluded that the assault prosecution violated double jeopardy.

Likewise in State v. Kipi, 72 Haw. 164, 811 P.2d 815 (1991), the defendant pled no contest to a criminal contempt charge for violation of a family court protection order which forbid him to enter his ex-girlfriend’s house or to threaten her and her roommates. The court sentenced Kipi to five months in jail on the contempt conviction, which was based on the defendant’s forcible entry into his ex-girlfriend’s house, during which he threatened her and her roommates. Kipi argued that the previous contempt barred the State’s effort to prosecute him for burglary and terroristic threats based on the same criminal episode.

The Supreme Court of Hawaii acknowledged that, under the traditional Blockburger test, the State would have to prove facts to establish burglary and threats which are different from and additional to those it used to prove the criminal contempt charge. State v. Kipi, 72 Haw. at 171, 811 P.2d at 819. However, the court in Kipi stressed that in Grady v. Corbin, “the Supreme Court broadened the scope of double jeopardy.” Id. Given the Corbin test, the Hawaii court concluded, “Kipi cannot be prosecuted for burglary and terroristic threatening. The conduct that the State would use to prove those crimes is the identical conduct that the family court considered when it accepted Kipi’s no contest plea.... Kipi’s entering of the [the complainant’s] house and his threats to her and two of her housemates was the exact conduct that constituted the offense of contempt with respect to the family court’s protective order.” Id.

Finally, in a carefully reasoned opinion by the en banc District of Columbia Court of Appeals in United States v. Dixon, 598 A.2d 724 (D.C.App.1991) (en banc), cert. granted, — U.S. -, 112 S.Ct. 1759, 118 L.Ed.2d 422 (1992), the court reached the same conclusion relying on Corbin and citing Magazine and Kipi. Dixon involved consolidated appeals presenting the same issue, that is, whether previous contempt adjudications barred subsequent criminal prosecutions based on the same conduct which led to the contempt conviction. The Dixon court held that Grady v. Corbin is “controlling and that it requires us to sustain the claim of double jeopardy in both cases.” Dixon, 598 A.2d at 730. The court found that the conduct underlying the contempt convictions in each of the consolidated appeals was indisputedly “the very same conduct for which the government now seeks to try them in the two pending criminal cases.” Id. at 731. Therefore, the court concluded that “Grady v. Corbin compels us to hold that those cases cannot be tried, now or ever.” Id. Further, the Court of Appeals rejected the argument that jeopardy did not bar the subsequent prosecutions because the contempt proceeding was initiated by private parties, not by the government. The court correctly emphasized that the double jeopardy protection focuses on “the impact of the trial on the defendant”, not on the identity of the prosecuting party. Id. at 732.

See also Burge v. Kentucky, (No. 90-CA-002233-MR, Ky. Ct.App. March 27, 1992); State v. Vanselow, 61 Ohio Misc.2d 1, 572 N.E.2d 269 (1991); State v. Mojarro, 169 Ariz. 1, 816 P.2d 260 (Ariz.App.1991), all of which rely on Grady v. Corbin to reach the same conclusion I do today.

Lastly, in part because of this court’s opinion in Wamck, discussed above, and in part for purposes of completeness, I address the significance of the recent Supreme Court case of United States v. Felix, — U.S. -, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). In Felix, the Supreme Court limited the reach of Grady in the context of multi-layered, continuing criminal enterprise prosecutions. In Felix, the defendant had been tried and convicted first in Missouri in federal district court for attempting to manufacture methamphetamine. The charge was based upon the defendant’s acquisition of the base chemicals necessary for the manufacture which had been delivered to the defendant in Joplin, Missouri. The “deal” which proved the charge in the first trial was orchestrated through the DEA and one of its informants. Subsequently, defendant was charged in federal court in Oklahoma with both substantive and conspiracy counts for operating a plant in Beggs, Oklahoma, at which he made methamphetamine. Two of the nine overt acts alleged to have been accomplished in connection with the conspiracy charges involved defendant’s acquisition of the chemicals in Missouri, i.e., the conduct which was used to prove the previous Missouri conviction. The United States Court of Appeals held that the double jeopardy clause barred the prosecution of the defendant for the conspiracy charge because two of the overt acts supporting the conspiracy were based on conduct which formed the basis of the previous Missouri prosecution. The Court of Appeals concluded that this result was dictated by Grady v. Corbin.

The United States Supreme Court reversed. Although the Supreme Court conceded that there was “considerable justification” to read Grady to support the conclusion that the conspiracy prosecution was barred, the Supreme Court refused to expand Grady into the conspiracy context. The Supreme Court concluded Grady did not intend to disturb long-established authority which insisted on the distinction between conspiracy to commit an offense and the offense itself. Similarly, the Court noted that a long line of cases has refused to apply a double jeopardy bar to prosecutions for a continuing criminal enterprise offense after a previous conviction for one of the predicate offenses. Moreover, the Supreme Court cited approvingly the analysis of the dissenting judge on the Court of Appeals who noted that the word “conduct” in Grady was modified by the phrase “that constitutes an offense for which the defendant has already been prosecuted”. Therefore although the same “conduct” may have been necessary to prove both the Missouri and Oklahoma offenses, the “conduct” itself did not constitute an offense for which defendant Felix had been previously convicted. See Commonwealth v. Yingling, 407 Pa.Super. 151, 595 A.2d 169 (1991), for a similar analysis.

In my view, Felix was specifically limited to the context in which it was decided, i.e., a continuing criminal enterprise involving a subsequent conspiracy prosecution. Felix can not be read to have eliminated the Grady standard and reinstituted a double jeopardy analysis based on Blockburger alone. Perhaps, in the future, this will be the course the Supreme Court adopts. I am aware that the United States Supreme Court has agreed to hear the Dixon case, cited above, in order to review the proper scope of the double jeopardy protection in cases involving a prior contempt conviction for conduct which also constitutes violations of other criminal provisions. Until such time, if ever, as the Supreme Court reinstructs on the correct interpretation of the protection against double jeopardy, I conclude that Grady v. Corbin controls the result here. Appellant’s trial for burglary violated his fundamental guarantee against double jeopardy.

      . The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides, in relevant part, that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb”.

      . The trial court noted the inordinately long time between trial and sentencing and suggested that difficulty in obtaining a transcript and preparing for post-trial motions was to blame.

      . The trial court found that criminal trespass merged with burglary for sentencing purposes. The court also noted that 18 Pa.C.S. § 3502(d) prohibits conviction for both burglary and the offense which the accused intended to commit therein if the latter is not a felony of the first or second degree. Since the wire interception offense was a third degree felony, the court vacated the sentence it previously had imposed on the interception charge.

      . Indirect criminal contempt is committed outside the presence of the court and requires a hearing and presentation of evidence which must be accompanied by due process safeguards. See Schnabel Associates, Inc. v. Building and Const. Trades Council of Philadelphia and Vicinity, AFL-CIO, 338 Pa.Super. 376, 487 A.2d 1327 (1985).

      . The majority opinion correctly notes that a recent decision by this court held that prosecution for indirect criminal contempt does not bar subsequent prosecution for underlying criminal offenses arising out of the same conduct. Commonwealth v. Manney, 421 Pa.Super. 244, 617 A.2d 817 (1992). The Manney opinion does not provide any rationale for extending the Wairick exception to cases of indirect criminal contempt. It merely concludes in a footnote that "the court’s resoning [sic] [in Warrick is] plainly applicable to the matter before us.” I acknowledge but disagree with the result reached by this court in Manney.

      . Section 6117 of the Protection from Abuse Act, 23 Pa.C.S. § 6101 et seq., provides:


author: POPOVICH, Judge:

text:
    618 A.2d 1003
    FRANCIS GERARD JANSON, P.C., Appellant, v. Mark B. FROST, Esquire and Mark B. Frost, Joseph Demesquitta and R. Lee Rudow, Individually and a Partnership Trading as Frost, Demesquitta & Rudow, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1992.
    Filed Jan. 5, 1993.

      Jeffrey S. Lichtman, Philadelphia, for appellant.
    George Szymanski, Jr., Philadelphia, for appellees.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

The appellant, Francis Gerard Janson, P.C., has filed an appeal from the order granting the preliminary objections in the nature of a demurrer of the appellees, Mark B. Frost & Mark B. Frost, Joseph Demesquita & R. Lee Rudow, individually and a partnership, trading as Frost, Demesquita & Rudow. We affirm.

When reviewing preliminary objections in the nature of a demurrer, the question is whether, assuming the facts averred in the complaint to be true, the law is clear that no recovery is permitted. A demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. Since a court should be reluctant to grant a demurrer except in the clearest of cases, a demurrer should not be granted where it appears that the plaintiff could cure any defect in the complaint by amendment.

Slater v. Pearle Vision Center, Inc., 376 Pa.Super. 580, 546 A.2d 676, 677 (1988) (Citations omitted).

The record, examined under the standard set forth in Slater, indicates that the appellant was retained by Stuart Gross to represent him in an automobile accident case. A contingent fee agreement was executed in which Gross consented to pay the appellant thirty three and one-third (33íá) percent of the settlement or judgment secured on his behalf. See Complaint, Paragraph 4, Exhibit “A”.

In the course of representing Gross, the appellant received an offer from the insurer to settle for $24,000. Gross rejected the offer. Thereafter, Gross discharged the appellant and secured the appellees to handle his case. The appellant reacted by informing the appellees that he had received a settlement offer for $24,000 and that he was “entitled” to an attorney’s fee amounting to one-third ($) of that offer. Complaint, Paragraph 7.

The appellant was advised that the fee would be “guaranteed” from the funds recovered on behalf of Gross “if Plaintiff would produce written proof’ that an offer of settlement had been made. While awaiting a confirmation letter from the insurer concerning the offer, the appellees “rescind[ed]” the agreement. Complaint, Paragraph 11.

Thirty seven (37) days after the appellees had agreed to make payment of one-third (}■>■') of any settlement, and after the appellees had rescinded the agreement, the appellant forwarded evidence of the insurer’s $28,000 offer to the appellees. Complaint, Paragraph 12, Exhibit “B”.

With the appellees’ refusal to honor the agreement, the appellant filed a complaint seeking judgment premised upon the oral agreement, and, in the alternative, a one-third (]/0 contingent fee on a quantum meruit theory from money received by the appellees on behalf of Gross.

Preliminary objections were filed in which it was admitted that an agreement had been entered into “for payment of one third (%) referal [sic ] attorney fee to Plaintiff from any funds received on behalf of ... Gross up to the sum of $24,000.” Paragraph 6. However, the appellees denied any “agreefment] to protect Plaintiffs fee for an amount of ... $8,000.” Paragraph 10. In fact, the appellees asserted that the agreement was conditional in nature and required the appellant to forward Gross’ “complete files immediately” and provide written proof of the $24,000 settlement offer. Paragraph 6.

According to the appellees, their oral offer (made February 7, 1991) was rescinded (by letter dated March 5, 1991) when the appellant did not comply with the condition of the proposed agreement. Paragraph 7. Moreover, the appellees asserted that the complaint was premature since no funds had been collected on behalf of Gross because the case was still pending in Common Pleas Court. Therefore, the appellees sought dismissal of the complaint for the appellant’s failure to state a claim upon which relief could be granted.

In answer, the appellant denied the conditional nature of the understanding between himself and the appellees, that he was without information, knowledge or belief as to whether the litigation involving Gross had been resolved and that the appellees’ refusal to honor the agreement constituted an anticipatory breach prompting the present suit. Paragraphs 4, 15 & 16.

A Memorandum of Law was filed in support of the answer and urged that the appellant be allowed to amend his complaint to seek a declaratory judgment. The proposed amendment alleged all matters appearing in the initial complaint, with the addition of the averment that the plaintiff be entitled to “declaratory relief’ in the nature of an order of court directing the appellees to pay the appellant $8,000 from the “proceeds of any settlement or verdict received through [the appellees’] representation of Gross.

By order of court dated January 28, 1991,. the appellees’ preliminary objections were sustained and the appellant’s complaint was dismissed. A petition for reconsideration was denied and, thereafter, a timely appeal was filed with this Court.

In deciding whether the court below acted properly in granting the preliminary objections of the appellees, we note that both parties concede an agreement had been reached regarding the securement of the appellant’s contingent fee. The understanding ceases there.

The court labels the agreement executory and subject to rescission. The appellant argues the agreement was completed save for the satisfaction of a condition subsequent (written confirmation of the insurer’s offer to settle) considered to be “immaterial” to the agreement as a whole. The appellees contend that production of the written confirmation to settle was a condition precedent which was not sent until after revocation.

In resolving this dispute, we begin with a recitation of various principles of law germane to the case at bar: First, the task of interpreting a contract is generally performed by a court rather than a jury, Walton v. PNB, 376 Pa.Super. 329, 545 A.2d 1383 (1988); Second, where a contract is executory on both sides (as was the case here), the party seeking the legal enforcement of the stipulations of the other party must show a compliance with his own. In other words, that which is first to be performed must be done or tendered before the party who is to do it can sustain a suit against the other, 17A Am.Jur.2d, §§ 609, 470 (“in the case of a concurrent condition, there is no liability until the condition is performed or occurs.”); Third, it is the general rule that where no time is agreed upon for the completion of a contract, it must be completed within a reasonable time under all the circumstances, 8 P.L.E. Contracts, § 245; 17A Am.Jur.2d, §§ 202, 479; Fourth, where contractual promises or covenants are mutual and dependent, the failure of one party to perform authorizes the other to rescind the contract, 17A Am.Jur.2d, §§ 570, 574 (Interdependence of contractual provisions, in which a material breach occurs by one party, entitles the other party to rescind); and Fifth, what is a reasonable time within which to exercise the right of rescission, when the facts are undisputed, is a question of law to be determined by the court, 8 P.L.E. Contracts, § 319.

Applying the precepts just recited to the case at bar, the complaint reveals that the appellees guaranteed a one-third 0é) contingent fee payment to the appellant. Such payment was “conditional” in nature and required presentment of Gross’ files and written confirmation of a settlement offer from the insurer. Neither requirement was satisfied until after the passage of three (3) weeks from the date appellees’ offer was communicated to the appellant and revocation had taken place. The conditions being lawful, it is not competent for this Court to dispense with their performance. Waterman v. Banks, 144 U.S. 394, 401-03, 12 S.Ct. 646, 648, 36 L.Ed. 479 (1892).

Unlike the appellant, we hold that satisfaction of one of the conditions precedent was a “material” element to enforcement of the contract. It was the “essence” of the agreement, for without evidence of the offer of settlement from the insurer, the appellees had no proof (“consideration”) of the appellant’s efforts requiring remuneration. 17A Am.Jur.2d, §§ 573, 577 (Material breach warrants rescission); § 580 (A contract may be rescinded by a party thereto by reason of the breach or nonperformance of a condition by the other party, especially where it is the breach or nonperformance of a condition precedent).

Accordingly, we agree with the court that:

Submission from both parties led this Court to believe that the agreement functions as an executory contract. Prompt delivery of the client’s file and written verification of the settlement offer served as conditions precedent to defendants’ obligation to protect plaintiff law firm’s fee.
Plaintiff contends that defendants’ refusal to protect the fee was an anticipatory breach of the agreement. In theory, anticipatory repudiation by defendants could have discharged plaintiffs duty to perform the conditions, i.e., delivering the file and written proof of the settlement offer. Jonnet Development Corp. v. Dietrich Industries, Inc., 316 Pa.Super. 533, 463 A.2d 1026 (1983).
Circumstances surrounding the agreement can appropriately shed light on the intent of the parties and the ambiguity of the contract. Walton 545 A.2d at 1389. Defendants averred that they agreed to protect plaintiffs fee on the condition that plaintiff forward complete files immediately ■with written proof of a settlement offer.
Common sense suggests that defendants could have benefitted from promptly receiving the file and a written settlement offer from plaintiff. Defendants could have saved time and expense by avoiding duplication of the work which plaintiff alleged to have completed. However, plaintiff failed to supply information in a timely fashion and defendants withdrew the unfulfilled offer.

Lower Court Opinion at 4-5 (Footnote omitted; emphasis in original).

Lastly, we are not persuaded to allow the appellant the opportunity to amend his complaint. No amount of amending could cure the failure of the appellant to act timely in satisfying the conditions precedent as a preface to enforcing the executory contract with the appellees. See Pittsburgh Coal & Coke v. Cuteri, 404 Pa.Super. 298, 590 A.2d 790 (1991).

Finding no merit to any of the appellant’s arguments on appeal, we will affirm the order granting the appellees’ preliminary objections.

Order affirmed.

      . The appellees assert in Paragraph 6 of their preliminary objections that the proper forum for this dispute is before the Attorney Fee Dispute Arbitration & Mediation Board.
      This Court would point out that such dispute resolution is an alternative vehicle for settlement only where both parties are agreeable to such a forum. There is no indication that either party was receptive to such an approach in resolving the dispute.

      . As an aside, given the unresolved nature of Gross’ lawsuit below, we would note that the appellant is not without recourse against his former client. He may seek recoupment for the value of services rendered under a theory of quantum meruit, and, once a fund is created in favor of Gross, a charging lien can be filed in favor of the appellant for work performed. See Recht v. Urban Redevelopment Authority, 402 Pa. 599, 168 A.2d 134 (1961); Sundheim v. Beaver County Building & Loan Association, 140 Pa.Super. 529, 14 A.2d 349 (1940).


author: DEL SOLE, Judge:

text:
    618 A.2d 1007
    COMMONWEALTH of Pennsylvania v. Carlos RODRIGUEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1992.
    Filed Jan. 5, 1993.
    James M. Bucci, Reading, for appellant.

      Carolyn L. Darringer, Asst. Dist. Atty., Reading, for Com., appellee.
    Before DEL SOLE, BECK and BROSKY, JJ.
   DEL SOLE, Judge:

Following a jury trial in which Appellant was convicted of numerous charges including possession, possession with intent to deliver and criminal conspiracy, he filed post-verdict motions which were denied and he was sentenced. He files this direct appeal from his sentence alleging that his convictions should not stand because the Commonwealth did not establish that he constructively possessed the drugs at issue in this matter. Because we agree with Appellant’s contention, we need not discuss his other claim which concerns the sentence imposed by the trial court.

The facts of this case were not in dispute. As a result of information from a confidential and reliable police informant that a John Doe was selling cocaine from 907 Franklin Street, first floor, Apartment No. 2., a search warrant was issued for the premises and the body of “John Doe.” Based upon the description provided, the arresting officer identified the “John Doe” to be Joseph Aquino.

At approximately 11:30 in the evening the officers went to door of the apartment and heard conversation inside. They knocked, announced that they were police officers, heard scrambling noises and waited approximately 30 seconds before forcing their entry into the premises. The apartment consisted of one room, with a open walk-in closet, a sink, a bed and a dresser. Appellant was found standing in the open closet. As police attempted to detain him, he began to fight and struggle and had to be subdued and handcuffed. The police discovered a key in Appellant’s hand which fit into the front door lock of the apartment.

Joseph Aquino was in the apartment next to the bed when the police entered. He too struggled and fought before being arrested. Police located a tenth of a gram of heroin in Mr. Aquino’s pocket in ten glassine packets and $270 in cash. Three plastic baggies of cocaine were found inside a cigarette pack discovered in the pocket of a sports coat jacket hanging in the closet. Police also seized from the top of the dresser a mirror, 16 Valium tablets and a paper tablet with a white powder residue on it. In the dresser police recovered a brown paper bag in which was located a “pestle” and a box containing a gram scale. On the floor in plain view was a bottle a “Vitablend” which although not illegal and commonly sold as a vitamin in health food stores, is also often used as a cutting agent for cocaine. Inside brown paper bags and one box on the floor of the apartment, miscellaneous packaging materials were found. Police also recovered, as proof of residence, four rent receipts issued to Joseph Aquino.

No drugs or cash were found in Appellant’s possession, and there was no evidence discovered linking Appellant to the apartment, such as mail or receipts. And, despite the fact that in executing the warrant the police were searching for Joseph Aquino, to whom rent receipts were issued for the apartment, the court found support for the conclusion that Appellant constructively possessed the drugs based upon the fact that a key to the apartment was found in his hand, he was present in the apartment when drugs were discovered during the search and he was located in the same walk-in closet which contained a jacket with a pocket in which cocaine was found. We do not draw this same legal conclusion from these facts.

Critical to a finding of constructive possession is evidence of shared “access” and “control” of the area where the contraband is found. Commonwealth v. Mudrick, 510 Pa. 305, 309, 507 A.2d 1212, 1214 (1986); See Commonwealth v. Aviles, 615 A.2d 398 (1992) (which held that Appellant, a lessee of the premises, constructively possessed drugs seized in bedrooms to which she had access.) “Constructive possession has been defined as the ability to exercise a conscious dominion over the illegal substance: the power to control the contraband and the intent to exercise that control.” Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983). Evidence of Appellant’s control is lacking in this case. Many of the seized items were hidden from view in the apartment and others which were seized in view are equally consistent with noncriminal activity. The Commonwealth suggests that Appellant had control of the entire apartment as evidenced by the key found in his possession. We find this fact alone is insufficient.

When considering the issue of constructive possession, the totality of the circumstances are to be examined. Commonwealth v. Mudrick, supra. 510 Pa. at 308, 507 A.2d at 1213. Here as stated, there was no evidence that Appellant resided in the apartment. No mail, rent or utility receipts were found in his name and the rent receipts which were discovered were in another’s name alone. There was one bed on the premises and there was no identification in the jacket found in the closet. The confidential informant spoke only of a single person in relating to the police his purchase of drugs from the apartment. Appellant’s possession of the key alone cannot, under these circumstances, establish his control of the apartment. Often people have keys to a dwelling to which they have no possessory or ownership interest. Family members and neighbors may exchange keys for a variety of reasons. In this case Joseph Aquino testified that he gave his key to Appellant because he was ill and Appellant was going to bring him food. He supported his testimony with evidence that he was hospitalized upon his arrest. Even absent this testimony, since we must view the facts in favor of the verdict winner, Commonwealth v. Durrant, 501 Pa. 147, 460 A.2d 732 (1983), Appellant’s possession of the key to the apartment can not alone satisfy the requirement of control necessary to support a finding of constructive possession.

In Commonwealth v. Frometa, 398 Pa.Super. 110, 580 A.2d 865 (1990) the appellant’s possession of a key to a basement where drugs were found was deemed insufficient to sustain her possession conviction. This ruling was made despite the fact that the police had made a controlled buy of heroin from appellant earlier and had obtained a warrant to search her apartment upstairs in the building. The court noted that the evidence did not establish whether or not the basement was a part of the premises leased to the appellant and that the possession of the key did not establish that she “exercised conscious dominion” over the items found in the basement. Although the basement door was located in close proximity to the door to the appellant’s apartment there was no evidence that the appellant knew the items were in the basement and no evidence of how many people had equal access to the basement area.

In this case, the Commonwealth did not even have evidence as strong as that produced, and ruled insufficient, in Frometa. Here there was no evidence of a prior drug deal involving Appellant. The area searched was not in close proximity to Appellant’s residence. The only evidence linking Appellant to the apartment was the key and his presence. This alone will not suffice.

For the foregoing reasons we reverse Appellant’s convictions, vacate his Judgment of Sentence and order that he be discharged.


text:
    618 A.2d 1009
    COMMONWEALTH of Pennsylvania v. Wylie E. IRWIN, Jr. and Diane Irwin, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1992.
    Filed Jan. 6, 1993.
    Petition for Allowance of Appeal Granted March 23, 1993.

      Dennis B. Rafferty, Latrobe, for appellants.
    Robert P. Boyer, Jr., Asst. Dist. Atty., Greensburg, for Com., appellee.
    Before ROWLEY, President Judge, and JOHNSON and HESTER, JJ.
   ROWLEY, President Judge:

Wylie E. Irwin and Diane Irwin appeal from the order denying their petition for the return of property. On appeal, they raise one issue, namely, whether redemptive token machines are gambling devices per se subject to seizure by the Commonwealth. After reviewing the record and the applicable case law, we affirm the order.

Appellants are the principal owners of a business known as Greensburg Entertainment, Inc., trading as Side Show Pizza. Side Show Pizza is a family entertainment center. Along with a musical stage show and automated rides, Side Show Pizza contains an arcade which features a variety of games, including skee-ball, basketball shoot, duck pond, and video games. Many of these games award the players with tokens which can be redeemed for prizes at a redemption center on the premises. The prizes range from candy and small toys to television sets, microwave ovens, and compact disc players.

Three types of the video games were seized by state police as gambling devices. Those games are video black jack, video poker, and “New York, New York,” also known as the “penny fall game.” The machines seized were of the type that awarded tokens to winning players. Appellants subsequently filed a petition for the return of the machines, which the trial court denied after an evidentiary hearing. This timely appeal was then filed.

Appellants argue that the machines seized were not gambling devices because the reward element required for a finding of gambling is absent. See Commonwealth v. Twelve Dodge City Video Poker Machines, 517 Pa. 363, 537 A.2d 812 (1988). They contend that although the winning players received tokens which could be redeemed for prizes, the players would never gain anything beyond the amount played. Therefore, appellants argue, “a game that inevitably offers a prize of less value than the price of playing the game could not [provide] a sufficient reward to establish gambling.” Appellants’ Brief at 12. Rather, the prizes are merely an incentive to induce the patrons of Side Show Pizza to play the games, thereby providing appellants with a profit.

In support of their argument, appellants rely on the principle that the right to play a free game is not a reward. See In re Wigton, 151 Pa.Super. 337, 30 A.2d 352, 354 (1943). That reliance is misplaced. The rationale underlying that rule is not that the player has not received a reward because he did not win more than he spent. Rather, the rationale is that “[i]f the player cannot get any other consideration or reward from the play except the right to play again, his incentive for playing must be a recreational or amusement incentive only.” Id. at 337, 30 A.2d at 354. Appellants’ customers did not play for recreation or amusement only. They played for tokens which were redeemable for prizes. The fact that the prizes were worth less than the cost of winning them does not mean that the players did not receive a reward. As the trial court aptly stated:

The tokens issued, while having little value in and of themselves, are plainly dispensed for the purpose of allowing the recipient to redeem them for something of value at the store’s redemption center. The fact that the player is engaged in an activity in which he cannot ‘beat the house’ does not absolve the ‘house’ of operating a gambling system here. The amount of reward may not be as much as the player has ventured to receive it, but in the redemptive process, the game is surely converted from something solely for the purposes of amusement to an activity expressly engaged in for the purpose of obtaining ... property as the result of the exercise of chance. This is definitively gambling.

Trial Court Opinion (Mihalich, J.), 11/4/91, at 7. Although appellants’ customers may not have been engaged in astute gambling, that is, they could not win more than they spent, they were nonetheless gambling on whether they would win tokens redeemable for prizes.

In further support of their argument, appellants cite cases in which our Supreme Court has held that two features, a knock down button and meter mechanism, are required before a machine will be deemed a gambling device per se. See Twelve Dodge City Video Poker Machines, supra; Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 196-98, 465 A.2d 973, 979 (1983). Those features are not present on the machines at issue. However, those two features provide a method whereby players can accumulate free games and then erase those free games in exchange for a reward such as cash. Appellants’ machines do not permit players to accumulate free games and then erase those free games in exchange for a reward. However, appellants’ machines dispense tokens to winning players which can be redeemed for a reward. Appellants’ customers need not accumulate free games on the machines, as they accumulate tokens dispensed by the machines. We therefore hold that a machine which dispenses tokens to winning players is a gambling device even though it does not have a knock down button and meter. Because the token system serves the same purpose as the knock down button and meter, this holding is not inconsistent with the above cases.

For these reasons, we conclude that the trial court did not err in denying appellants’ petition for the return of property. We therefore affirm the trial court’s order.

Order affirmed.

      . The video poker games were not actually available for use by patrons of Side Show Pizza. They were located in a storage room.