author: SPAETH, Judge: JOHNSON, Judge,

text:
    437 A.2d 7
    Joan M. BOND, Appellant, v. Charles B. GALLEN.
    Superior Court of Pennsylvania.
    Argued June 25, 1981.
    Filed Oct. 16, 1981.
    Petition for Allowance of Appeal Granted March 16,1982.

      Matthew S. Donaldson, Jr., Media, for appellant.
    Stephen C. White, Media, for appellee.
    Before CERCONE, P. J. and SPAETH, HESTER, WICKERSHAM, BROSKY, DiSALLE, JOHNSON, POPOVICH, and SHERTZ, JJ.
   SPAETH, Judge:

This is an appeal from an order granting a motion for judgment on the pleadings. The issue is when the two year limitations period starts to run in a case arising from a motor vehicle accident where the right to bring a tort action is limited by the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. In Donnelly v. DeBourke, 280 Pa.Superior Ct. 486, 421 A.2d 826 (1980), we held that the limitations period starts to run on the date of the accident. However, it does not appear that the court in Donnelly was asked to consider the significance of Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975). We therefore ordered reargument of this case before the court en banc in order to reconsider our decision in Donnelly in light of Singer. We now overrule Donnelly and hold that the two year limitations period does not start to run until the claimant knows or in the exercise of reasonable diligence should have known that one of the thresholds specified in section 301(a) of the No-fault Act had been reached.

The facts of this case are quite simple. Appellant was injured on February 3, 1977, when the automobile she was driving was struck by an automobile driven by appellee. Appellant did not file her complaint until more than two years later, on April 12, 1979. However, in her complaint she detailed the course of treatment for the injuries she suffered in the accident, alleging that it was not until December 2, 1978, that she first believed that her medical expenses would exceed $750, and not until sometime after December 17, 1978, when she was admitted to a hospital for surgery, that her expenses actually did exceed $750. Appellee filed an answer to the complaint with new matter alleging that appellant’s claim was barred by the statute of limitations, and then filed a motion for judgment on the pleadings, which by order of April 21, 1980, the lower court granted. This appeal followed.

At this stage we must take appellant’s allegations as true. Engel v. Parkway Company, 439 Pa. 559, 266 A.2d 685 (1970). Accordingly, the case may be summarized by saying that while appellant’s complaint was filed more than two years after the accident, it was filed less than two years, specifically, only four months, after appellant met a no-fault threshold allowing tort recovery.

In Singer v. Sheppard, supra, the Supreme Court held that the No-fault Act does not violate Article 1, Section 11, and Article 3, Section 18, of the Constitution of Pennsylvania because, instead of limiting the damages recoverable in a tort action, the Act abolishes the right to recover any damages, unless the claim falls within one of the exceptions contained in section 301(a). Id. 464 Pa. at 397, 346 A.2d at 902-03. The Court interpreted the Constitution as requiring only that when a cause of action exists, access to the courts may not be restricted nor damages limited. The Constitution, said the Court, does not deprive the General Assembly of the power to abolish a cause of action. Thus, when we are asked to decide when the statute of limitations starts to run, we must give an answer consistent with the Court’s interpretation of the No-fault Act as not a limitation on a remedy but as an abolition of a cause of action. Upon reflection, it is clear that the holding in Donnelly v. De- Bourke, supra, is not consistent with Singer. To say, as Donnelly did, that the statute of limitations starts to run from the date of the accident, even when none of the No-fault Act’s thresholds has been reached, is to say that the statute starts to run from a date on which, and even though, the cause of action did not exist.

This point may perhaps be made clearer by imagining a dialogue between a trial judge required to follow the holding of Donnelly and a disappointed claimant. Suppose the accident was on January 1, 1978, but the $750 threshold was not reached until February 1, 1980. Judge: “Your claim is barred because the statute of limitations started to run on January 1, 1978.” Claimant: “But under Singer I didn’t have any cause of action on January 1, 1978. In fact, I didn’t get a cause of action until February 1, 1980. By then, according to you, the statute had already run.” Judge: “That’s true, and it’s too bad. What you should have done is, before the statute had run, file a claim saying that although you had no cause of action, because the $750 threshold hadn’t been reached, maybe you would have one, because maybe the threshold would be reached. That way you would have protected yourself.” Although stated in colloquial language, this dialogue fairly summarizes the holding in Donnelly.

This holding is unacceptable for two reasons: First, it cannot be supposed that in enacting the No-fault Act, the General Assembly intended such a result. In this regard it may be noted that although Donnelly does discuss policy considerations favoring its result, it cites no provisions of the Act in support of its conclusions. Second, the result is unjust and unnecessary. Why should such a claimant be barred? What sense does it make to tell claimants—i. e., tell their lawyers—that to protect themselves, they must file fictitious, precautionary, claims? How can such claims be reconciled with Pennsylvania’s system of fact pleading—not to mention, with simple honesty?

It is true that the present case is not quite so dramatic as the case just supposed. For here the threshold was reached twenty-two months after the accident, instead of twenty-five. In other words, here we could say to appellant: “You knew two months before the statute ran that you had a cause of action. It was therefore up to you to file your claim within those two months.” This answer, however, will not withstand examination. For the fact remains that it cannot be supposed that the General Assembly intended thus to constrict a claimant’s right to assert a cause of action. Suppose the threshold is reached one month before the statute—according to Donnelly —runs. Did the General Assembly intend that unless the claimant asserts the cause of action within that one month, the cause is barred? Suppose the threshold is reached two weeks before the statute—according to Donnelly—runs. One week. One day.

Thus, in every case, Donnelly’s answer to the claimant is the same: “Your cause of action is barred unless you assert it within two years of the date of the accident, and this is so no matter when you reach the threshold, whether two months before the two year period expires, or one month, two weeks, one week, one day, or even afterwards.”

Given that when reexamined in the light of Singer, Donnelly is not acceptable, the question becomes: “How, then, should the limitations period be computed?” We believe, and now hold, that the limitations period does not start to run until the claimant knows or in the exercise of reasonable diligence should have known that one of the section 301(a) thresholds had been reached, in other words, until the claimant has a cause of action that can be pleaded, consistent with the fact-pleading requirements of Pa.R.C.P. 1019(a). Donnelly v. DeBourke, supra is overruled.

We recognize that this result is not entirely satisfactory, for cases may occur where the threshold is reached only after many years. Such cases, however, will be rare, and in any event, the difficulty they present may readily be avoided by the General Assembly. For example, the General Assembly could enact a statute of repose similar to the Act of July 9, 1976, P.L. 142, § 2, as amended, 42 Pa.C.S.A. § 5536, which provides that after 12 years, an action based on a defect in the design or construction of any improvement to real property is barred, regardless of when the defect was discovered or discoverable or the injury occurred. In this regard, it should be noted that neither a statute of repose nor a limitations period triggered by an event subsequent to the date of the accident is foreign to the No-fault Act as it now exists. Section 106(c)(1) provides, in part: The four year period is a statute of repose; the two-year period is triggered by an event subsequent to the accident. Although by its very nature a limitations period triggered by an event subsequent to the accident is less certain than one triggered by the accident itself, this fact does not present any problem that has not been overcome in other cases in the development of the discovery rule. See e. g., Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Anthony v. Koppers Company, Inc., 284 Pa.Superior Ct. 81, 425 A.2d 428 (1980). Finally, the No-fault threshold that has attracted the most attention—the requirement of $750 in medical expenses—is itself stated in terms of “the reasonable value of reasonable and necessary medical and dental services, ...” 40 P.S. § 1009.301(a)(5)(B). There is no provision that for the threshold to be met, the medical and dental services must have been billed or paid for. Thus a claimant may not defer the date the limitations period starts to run by, for example, being slow in paying for medical treatment.

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

The order of the lower court granting appellee’s motion for judgment on the pleadings will therefore be reversed and the case remanded for further proceedings. If it should appear, either on motion for summary judgment or at trial, that appellant did not file her action within two years after she knew or in the exercise of reasonable diligence should have known that a no-fault threshold had been reached, the action should be held barred. Otherwise, it should be held to lie.

The order of the lower court is reversed and the case remanded for further proceedings consistent with this opinion.

JOHNSON, J., files a dissenting opinion, in which CER-CONE, P. J., joins.

JOHNSON, Judge,

dissenting:

The majority seeks to overrule the decision of this Court in the case of Donnelly v. DeBourke, 280 Pa. Super.Ct. 486, 421 A.2d 826 (1980), appeal by allowance denied 667 E.D. Misc. Docket 1980 (Pa. February 27, 1981) and, thereby, to change existing law fixing the limitations period for instituting an action in tort due to injuries arising out of motor vehicle accidents. The majority would hold that the limitations period in minor accident claims does not start to run until a claimant knows, or in the exercise of reasonable diligence should have known, that the monetary threshold, as set forth in Section 301(a) of the Pennsylvania No-fault Motor Vehicle Insurance Act (presently $750) has been reached.

Since I believe that Donnelly v. DeBourke was correctly decided, and since a review of the relevant case law and statutes does not seem to support the views of the majority, I must respectfully dissent.

The No-fault Act was passed by the General Assembly, to become effective on July 19, 1975, upon a finding by the legislature that:

“(8) throughout the Commonwealth there should be uniformity as to the essential elements of the system of motor vehicle accident and insurance law to avoid confusion, complexity, uncertainty, and chaos which would be engendered by a multiplicity of noncomplementary systems. . ,”

A key feature of the Act was the abolition of tort liability, as set forth in Section 301(a), except in certain very specific situations described thereunder. One area of tort liability retained after the passage of the Act was for damages for non-economic detriment if the accident resulted, inter alia, in (a) death or serious and permanent injury; or (b) reasonable and necessary medical and dental services, with certain exclusions, in excess of $750.

In the instant case, Appellant was injured on February 3, 1977 as a result of a rear end collision in Delaware County. She sustained an internal disarrangement of the right knee, a whiplash injury to the right side of her neck, and an injury to her lower lumbar spine resulting in a slipped disc. As of July 10, 1978, Appellant’s medical expenses totalled $361. She was next treated on October 26, 1978 and presumably incurred additional expenses both on that date and again on December 2, 1978 when she underwent an EMG at the Mercy Catholic Medical Center in Darby, Pa. It is undisputed that her expenses exceeded the threshold sum of $750 soon after December 17, 1978, when she was admitted to Mercy Catholic for surgery, and certainly no later than December 29, 1978.

In spite of this, Appellant did not file her complaint in trespass until April 12,1979, some two years and two months following the date of her injuries. In the complaint, she alleged she had both received “grievous and permanent injuries” and incurred medical expenses “in excess of $750.00.”

The Defendant, after the pleadings were closed, filed a Motion for Judgment on the Pleadings, contending that the action was barred by the statute of limitations imposed upon personal injury actions by the Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 5524, which provides:

“§ 5524. Two year limitation
The following actions and proceedings must be commenced within two years:
(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

This section must be read in conjunction with 42 Pa.C.S.A. § 5502, another section of the same Judiciary Act of 1976, which provides:

“§ 5502. Method of computing periods of limitation generally
(a) General rule.—The time within which a matter must be commenced under this chapter shall be computed, except as otherwise provided by subsection (b) or by any other provision of this chapter, from the time the cause of action accrued, the criminal offense was committed or the right of appeal arose.

The lower court rejected Appellant’s contention that her cause of action “accrued” on the date she knew or should have known “legal” injury had been sustained, that is, on the date when she knew the “facts” upon which her cause of action was based, and granted the Defendant’s Motion for Judgment on the Pleadings, whereupon she brought this appeal.

At the time the Appellant’s injury occurred in 1977, the applicable statute of limitations, enacted and in effect since 1895, required that suit to recover damages be brought “within two years from the time when the injury was done and not afterwards.” But for the passage of the Judiciary Act of 1976 and the Judiciary Act Repealer Act in 1978, which resulted in the repeal of the 1895 statute of limitations, there would be no question but that Appellant’s claim would be barred. As recognized by Judge PRICE in Donnelly v. DeBourke, supra, the two year period of the statute of limitations in automobile accident personal injury cases has traditionally begun on the date the injuries were sustained. See, e. g. Coyne v. Porter-Hayden Co., 286 Pa.Super.Ct. 1, 5, 428 A.2d 208, 209 (1981) (dictum); cf. Hruska v. Gibson, 316 Pa. 518, 175 A. 514 (1934).

It is important to recognize that the 1895 statute of limitations was in effect throughout the period when the no-fault legislation was under consideration by the General Assembly and remained in effect for a period of nearly four years following passage of the No-fault Act and nearly three years after its effective date. Thus, in the absence of any legislative history to the contrary, it may reasonably be assumed that the legislature was aware of the effect of the 1895 statute upon minor injury claims and the necessity to file any such claims within the long-established two-year period.

Since the injury occurred prior to the effective date of the new statute of limitations, but the complaint was filed after that effective date, it must preliminarily be determined which statute controls. While substantive rights are settled as of the time the cause of action arises, rights in procedural matters are determined by the law in force at the time of the institution of the action. Bell v. Koppers Co., Inc., 481 Pa. 454, 458-59, 392 A.2d 1380, 1382-83 (1978); Sussman v. Yaffee, 443 Pa. 12, 15, 275 A.2d 364, 366 (1971). The statute of limitations is an affirmative defense, to be raised ordinarily as New Matter, and merely operates as a bar to the plaintiff proceeding with a claim and, therefore, must be deemed to be procedural in nature.

Having determined that 42 Pa.C.S.A. §§ 5502 and 5524 are the applicable statutes for disposition of Appellant’s claim, we now must consider whether the legislature intended to effectuate a radical change in the long-established law concerning the “fact” which triggers the statute of limitations in automobile accident personal injury cases by the adoption of the Judicial Code of 1976.

We are guided in our review of 42 Pa.C.S.A. § 5502 by the Statutory Construction Act of 1972, 1 Pa.C.S.A. § 1921, which provides:

“§ 1921. Legislative intent controls
(a) ...
(b) . ..

(c) When the words of a statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:

(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be obtained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.”

The Judicial Code bills had been drafted by the Pennsylvania Bar Association Special Committee on the Judicial Code in cooperation with a similar committee of the Pennsylvania Conference of State Trial Judges. It was only after submission of the proposed bills to the General Assembly that it determined to utilize the bills “as a vehicle to rationalize and simplify the statutes of limitation.” This was done by bringing together, in one place , most of the various statutes of limitation which had theretofore been located throughout the statutes. In so doing, 42 Pa.C.S.A. § 5502 became the general statute for computing periods of time, not only in both civil and criminal matters but also in appeals. A portion of the language contained in the new § 5502 may have been derived from an 1897 statute dealing with fraudulent debtors’ attachments, but one must suppose that the legislature was seeking to achieve an omnibus statute which would replace all of the older statutes relating to computations of time without working a change in their effect. There is nothing in the Judicial Code, or its amendments, to suggest otherwise.

The object of the legislature was to simplify the law, and not to change it, so far as limitations of actions in personal injury cases were concerned. So far as my review of the legislative history has revealed, there was no mischief which the General Assembly sought to remedy in this area. Had the legislature intended to change the result which had obtained under the 1895 statute of limitations, they would, and could, have said so in unmistakable terms.

Were we to give to § 5502 the interpretation which the majority suggests, it would result in the effective reinstatement of a whole class of minor injury cases which the legislature, in its wisdom, has only so recently abolished! I am not disposed to engage in this type of judicial legislation.

Both the majority and Appellant, in her brief, contend that the holding in Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975) requires that § 5502 be interpreted to create a “moving” statute of limitations under § 301(a) of the No-fault Act. I cannot agree. In Singer, the opinion was authored by Chief Justice Jones (since deceased), but it does not appear that any other justice joined in that opinion. Justice Roberts, in a concurring opinion, concurred “in the judgment sustaining the constitutionally of section 301(a).” Id., 464 Pa. at 415-17, 346 A.2d at 911-12. Justice Pomeroy (since retired) joined Justice Roberts except as to certain matters not relevant here. Id., 464 Pa. at 417, 346 A.2d at 912. Justice Nix merely agreed “with the result reached by the majority.” Id., 464 Pa. at 417-20, 346 A.2d at 912-914. Justices Eagen (since retired), O’Brien and Manderino (since deceased) all filed separate dissents. Id., 464 Pa. at 408-15, 420-21, 346 A.2d at 907-911, 914.

At no point were four justices of the court in sufficient agreement to support the analysis of Singer that is set forth in the majority opinion. In considering whether or not Donnelly is consistent with Singer, the most that can be said about Singer is that, on the vote of four justices of the court, § 301(a) of the No-fault Act was found not to violate either the state or federal Constitution.

An opinion of the supreme court, disposing of an appeal but not representing the view of a majority of the court, is not decisional and, therefore, not binding. Commonwealth v. Davenport, 462 Pa. 543, 559 n.3„ 342 A.2d 67, 75 n.3 (1975); Commonwealth v. Silverman, 442 Pa. 211, 218, 275 A.2d 308 n.8, 312 n.8 (1971); U.S. cert. denied, Pennsylvania v. Silverman, 405 U.S. 1064, 92 S.Ct. 1490, 31 L.Ed.2d 794 (1972). I would submit that the holding in Singer is limited to the finding that the No-fault Act is constitutional. I therefore cannot subscribe to the majority’s contention that Donnelly is not consistent with Singer.

Some guidance on this computation issue may be achieved by recognizing the results reached in our sister states. My conclusion that the statute of limitations begins to run on the date the injury-causing event occurs has been reached in the only other jurisdictions which have faced this question. See Taber v. Niagara Frontier Transit Authority, 101 Misc.2d 92, 420 N.Y.S.2d 692 (Sup.Ct. 1979), aff’d, 78 App. Div.2d 775, 435 N.Y.S.2d 551 (1980); Carter v. Cross, 373 So.2d 81 (Fla.Dist.Ct.App. 1979), cert. denied 385 So.2d 755 (Fla.1980); Dinesen v. Towle, 3 Kan.App.2d 505, 597 P.2d 264 (1979), rev. denied, 226 Kan. 792 (1979); Cappadona v. Eckelmann, 159 N.J.Super. 352, 388 A.2d 239 (Super.Ct.App. Div. 1978).

Each of these cases has determined that the applicable statute of limitations, in a tort action arising out of a no-fault statute, begins to run, and the cause of action accrues, as of the date of the accident.

I foresee a problem with the majority’s analysis concerning damages. If the cause of action does not accrue until the threshold has been met, what happens to the non-economic detriment which would have been incurred prior to that date? If, as the majority would argue, there is no cause of action prior to reaching the monetary threshold, then no legal detriment could have been incurred. Is the claimant then limited to recovering for pain and suffering as calculated only from the threshold date? This would be the type of absurd and unreasonable result which the General Assembly could not have intended.

It is true that in certain exceptional circumstances as, for example, medical malpractice cases, a “moving” statute of limitations has been approved. See e. g., Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Anthony v. Koppers Co., Inc., 284 Pa.Super.Ct. 11, 425 A.2d 428 (1980). However, there appears to be no legal justification for the application of this so-called “discovery rule” in the instant situation. A plaintiff invoking the discovery rule to delay the commencement of the statute of limitations must allege facts which show why the action could not have been brought earlier. Coyne v. Porter-Hayden Co., Id., 286 Pa.Super. at 7, 428 A.2d at 210. Here, Appellant admits that the injuries were manifested on the date of the injury, alleges serious and permanent injuries, and was fully aware of having passed the threshold sum almost two months before the statute had run.

We are not here concerned with a hidden or latent injury. The injuries which Appellant sustained first manifested themselves on February 3, 1977, and she had a right to maintain an action from that date, subject only to her being able to prove minimal medical expenses at the appropriate time. We are not concerned, either, with Appellant’s ability to recover her net losses which are protected by other pertinent sections of the No-fault Act.

I am convinced that the legislature enacted no-fault as a means of providing compensation for injured persons in lieu of their filing lawsuits for damages in cases involving small sums of money or minor injuries. The majority would destroy this legislative intent on the pretext that consistency with our prior case law cannot otherwise be maintained. Moreover, they would overrule the decision of this court in Donnelly v. DeBourke which first considered this issue and which has withstood a Petition for Allowance of Appeal. I am not prepared either to usurp the power of the legislature or to treat lightly the well-reasoned opinion of my colleague, Judge PRICE.

Therefore, I must dissent.

      . The dissent argues that we should give no weight to Singer because no Justice joined the lead opinion, written by then Chief Justice JONES. Dissenting op. at 15. However, the concurring opinions, written by Justice ROBERTS, joined by Justice POMEROY, and by Justice NIX, make clear that they too, like the Chief Justice, regarded the No-fault Act as an exercise of the Legislature’s power to create and abolish causes of action. Justice ROBERTS wrote:
      [Article III, section 18 of the Pennsylvania Constitution] does not limit the power of the Legislature to create or abolish causes of action; ...
      Section 301(a) of the No-fault Act does not place a maximum dollar limitation on the amount of damages that are otherwise recoverable by a person injured in a motor vehicle accident. Rather, it specifies in what circumstances a person has a cause of action for injuries received in a motor vehicle accident . ..

        Singer v. Sheppard, supra 464 Pa. at 415-16, 346 A.2d at 911-12 (ROBERTS, J., concurring) (footnote omitted; emphasis added). Similarly, Justice NIX wrote:
      The law is clear that the General Assembly has the power to abolish common law causes of action .... [T]he legislature recognized the desirability of eliminating the common law cause of action for pain and suffering from injuries resulting from automobile accidents.

        Id., 464 Pa. at 418, 346 A.2d at 912-913 (NIX, J., concurring) (citation omitted; emphasis added).
      If there could otherwise be any doubt that the three opinions upholding the constitutionality of the No-fault Act all agreed that the Act was constitutional only because it abolished a cause of action rather than limiting damages, it is dispelled by Justice MANDERINO’s dissenting opinion:
      The opinion of Mr. Chief Justice JONES and the concurring opinions agree that, without the people’s approval, the legislature cannot put a maximum dollar amount on damages recoverable by citizens for injuries. Yet, it is contended that this proposition does not prevent the abolition of a cause of action.

        Id., 464 Pa. at 420, 346 A.2d at 914 (MANDERINO, J., dissenting). When four of the seven Justices write or join opinions that agree on a proposition of law, that proposition does carry the authority of the Court, and we are bound by it.

      . Donnelly does cite cases from other states holding that the statute of limitations runs from the date of the accident. Carter v. Cross, 373 So.2d 81 (Fla.Dist.Ct.App.1979); Key v. Clegg, 4 Kan.App.2d 267, 604 P.2d 1212 (1980); Dinesen v. Towle, 3 Kan.App.2d 505, 597 P.2d 264 (1979); Cappadona v. Eckelmann, 159 N.J.Super. 352, 388 A.2d 239 (App.Div.1978). An examination of these cases will disclose, however, that in none of them is the no-fault act in question analyzed in the way in which our act was analyzed in Singer. Instead, in all of these cases the no-fault act is analyzed as providing limitations on recovery and qualified immunities for liability, not as abolishing a cause of action. This difference in analysis is illustrated most vividly by Cappadona v. Eckelmann, supra, which is also the case that Donnelly quotes at some length. According to Cappadona, “The tort exemption provision, N.J.S.A. 39:6A-8, is no more than an affirmative defense to be pleaded and proved by the party favored by it.” 159 N.J.Super. at 357, 388 A.2d at 242. The court specifically found that the New Jersey no-fault act provided exemption from liability, not from suit, and that failure to meet the no-fault threshold was therefore not a jurisdictional defect. Thus, if the exemption from liability is not pleaded by the defendant, a tort suit following an automobile accident may lead to a valid judgment even if the threshold has not in fact been met. The court also pointed out that because the threshold in New Jersey is so low—only $200—and because it is only necessary that it be met by the time of trial, it will be only a very rare case where the threshold has not been met in two years plus the time it takes for the case to come to trial, but is met later.
      So far as Pennsylvania cases before Donnelly are concerned, the courts of common pleas have disagreed on whether it is necessary to meet a no-fault threshold before filing suit. Compare:

      No useful purpose would be served by requiring a plaintiff actually to have incurred $750 in medical expenses before filing suit if it can be fairly alleged that the medical expenses are reasonably expected to be in excess of the threshold amount. A contrary ruling would not only raise problems with respect to the statute of limitations but might encourage early, excessive or unnecessary treatment. Mabey v. Michkens, 7 D. & C.3d 792, 1 Phila. 355, 357-58 (1978).

        Accord, O’Sullivan v. Ruszecki 2 D. & C.3d 276 (Allegheny Co. 1977); Theal v. Confer, 7 D. & C.3d 614 (Perry Co. 1978). With:

      [W]e find that the legislative debates leading up to the passage of the No-Fault Act fully considered the $750 threshold criterion [footnote omitted], and intended such to be met before the institution of suit.

        Gleeson v. Belkin, 9 D. & C.3d 499 (Phila.Co.1980) (omitted footnote discusses examples of legislative history.)

        Accord, Kubushefski v. Kleinot, 8 D. & C.3d 599 (Phila.Co.1979). However, all of the cases appear to agree that a claimant must in some way plead exemption from the No-Fault Act’s abolition of tort liability. This requirement is consistent with Singer but in sharp contrast to New Jersey practice as explained in Cappadona.

      . The dissent expresses concern that to hold that a cause of action does not accrue until a No-fault threshold has been met may mean that there may be no recovery for non-economic detriment incurred prior to that point. Dissenting op. at 15. As that question is not before us, we need not decide it today. However, even if the dissent is right, it is far from clear that such a result would be contrary to the intent of the No-fault Act. If a No-fault threshold is never reached, damages for non-economic detriment can never be recovered. In the case of a major accident a No-fault threshold will be met almost immediately, possibly even before the victim reaches the hospital. It is difficult to imagine a case where there would be great pain and suffering before a threshold was met but not afterwards; in any event, the calculation of damages for pain and suffering is, at best, not very precise.

      . See note 4 on page 214.

        4. The dissent suggests that we should attach some weight to the fact that Donnelly “has withstood a Petition for Allowance of Appeal.” Dissenting op. at 16. However, an order denying a petition for allowance of appeal does not constitute or imply an endorsement by the Supreme Court of the position taken by the Superior Court or the Commonwealth Court; it is instead a discretionary order, and of no precedential value. Pa.R.A.P. 1114 provides that “review of a final order of the Superior Court or the Commonwealth Court is not a matter of right, but of sound judicial discretion, and an appeal will be allowed only when there are special and important reasons therefor.” The Note to the Rule states that the Rule is “[bjased on U.S. Supreme Court rule 19 [now renumbered Rule 17],” which states the considerations that govern discretionary review by the United States Supreme Court on writ of certiorari. It is settled that an order entered pursuant to Rule 19 denying a petition for writ of certiorari is of no precedential value. Maryland v. Baltimore Radio Show, 338 U.S. 912, 70 S.Ct. 252, 94 L.Ed. 562 (1950).

      . Act of July 19, 1974, P.L. 489, No. 176, eff. in 12 months, 40 P.S. §§ 1009.101 et seq. (1981-1982 Supp.).

      . Id., Art, I, § 102(a)(8), 40 P.S. § 1009.102(a)(8).

      . Id., Art. Ill, § 301(a)(5)(A), 40 P.S. § 1009.301(a)(5)(A).

      . Id., § 301(a)(5)(B), 40 P.S. § 1009.301(a)(5)(B).

      . Act of July 9, 1976, P.L. 586, No. 142, generally effective June 27, 1978, 42 Pa.C.S.A. §§ 101 et seq.

      . Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34; repealed, Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [807], effective June 27, 1978.

      . Act of April 28, 1978, P.L. 202, No. 53, 42 Pa.C.S.A. §§ 20001-20004.

      . July 19, 1974.

      . July 19, 1975.

      . Pennsylvania Bar Association, Judicial Code Explanation, 42 Pa.C.S.A. XI, at XV.

      . The Judicial Code, Chapter 55, 42 Pa.C.S.A. §§ 5501 et seq.

      . Act of June 8, 1897, P.L. 136, § 2, 12 P.S. § 50, See Table 2 Derivation, 42 Pa.C.S.A. XCIX, at CXXIX.

      . As of 1979, twenty-five states and Puerto Rico had enacted no-fault legislation, with Illinois having thereafter declared their law unconstitutional. Of the remaining twenty-four states and Puerto Rico, only the four jurisdictions cited have raised the issue here under consideration. See Zittrain, “Whose Fault is No-Fault?”, 41 Pitt.L.R. 27 (1979).

      . Cf. Statutory Construction Act of 1972, 1 Pa.C.S.A. § 1922.


source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    437 A.2d 16
    COMMONWEALTH of Pennsylvania, v. Vance C. JOHNSTON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 3, 1980.
    Filed Nov. 6, 1981.

      James W. Harris, York, for appellant.
    Robert G. Teeter, Assistant District Attorney, Gettysburg, submitted a brief on behalf of Commonwealth, appellee.
    Before CERCONE, President Judge and WATKINS and MONTGOMERY, JJ.
   CERCONE, President Judge:

This is an appeal from a judgment of sentence in the Court of Common Pleas of Adams County for the violation of certain provisions of the Local Tax Enabling Act, 53 P.S. § 6901 et seq. The appellant, Mr. Johnston, contends that the disclosure requirement in the Local Tax Enabling Act with its concomitant statutory penalties for non-compliance is the type of governmental compulsion proscribed by the Fifth Amendment and is, therefore, unconstitutional because it does not afford immunity to the answering taxpayer. We, however, do not reach Mr. Johnston’s substantive contention because this issue is not properly before the Court.

Mr. Johnston filed a tax return pursuant to the Earned Income Tax Laws as enacted by the Upper Adams School District, however, Mr. Johnston refused to answer, on the form and orally at his hearing, any questions concerning the amount and source of his income. In addition, he refused to allow the tax collection agency to examine his books, thereby effectively depriving them of any means to assess the amount of his income during the 1977 tax year. Mr. Johnston cited his Fifth Amendment right against selfincrimination to justify his failure to disclose the pertinent information, asserting, as he did, that he would thereby be subject to prosecution for a violation of federal income tax laws.

After charges were filed, Mr. Johnston was found guilty by his local district justice who fined him fifty dollars plus costs. Having filed a timely appeal, Mr. Johnston was afforded a hearing de novo on May 8, 1979 before the Court of Common Pleas of Adams County. A written order was issued later that day finding appellant guilty of violating the provisions of the Local Tax Enabling Act, and simultaneously imposing a fine of fifty dollars. Thus, Mr. Johnston was sentenced immediately upon the pronouncement of the verdict.

Although appellant Johnston was not advised of his rights under Pa.R.Crim.P. 1123(c) during the de novo hearing, he nevertheless filed boilerplate post-verdict motions on May 16, 1979. After the notes of the testimony were transcribed and filed, the lower court, on June 5, 1979, scheduled oral argument on the motions for July 9, 1979. Thereafter, appellant Johnston filed a notice of appeal to this Court on June 6, 1979 and the lower court was thereby divested of jurisdiction to further act upon this matter. Pa.R.Ap.P. 1701(a).

Since a violation of this act is punishable by a fine of not greater than five hundred dollars and default of payment of such fines by a period of imprisonment not to exceed thirty days, the Rules of Criminal Procedure are applicable in this case. See In the Interest of Golden, 243 Pa.Super. 267, 365 A.2d 157 (1976). The problem in this case, therefore, is that the lower court improperly pronounced verdict and sentence simultaneously at the conclusion of the de novo hearing. See Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981); Commonwealth v. Zaimes, 6 D. & C. 3d 612 (Pa.R.C.P. 1978). In addition, the judgment of sentence was improperly imposed before either the filing of appellant’s post-verdict motions and the lower court’s ruling thereon, or the effective waiver of appellant’s right to do so after having been advised on the record by the lower court of his rights under Pa.R.Crim.P. 1123(c). Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1975); Commonwealth v. Koch, supra. Nevertheless, taking no chances, the attorney for the appellant timely filed his notice of appeal within thirty days of the May 8, 1979 judgment of sentence. This assured appellant of the timeliness of his appeal, but deprived him of the opportunity to have his post-verdict motions argued before, and ruled upon by, the lower court.

Because the lower court erred in rendering verdict and sentence together, appellant Johnston was placed in the tenuous position of being forced to take a timely appeal from an improperly imposed judgment of sentence before his post-verdict motions were argued and decided thereby risking an untimely appeal. We will, therefore, vacate the judgment of sentence and remand this case to the lower court to resume proceedings at the post-verdict stage. Also, since the record reflects that the lower court failed to advise appellant Johnston of his appeal rights pursuant to Rule 1123(c), the court on remand should also entertain supplemental post-verdict motions nunc pro tunc. Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978); Commonwealth v. Steffish, 243 Pa.Super. 309, 365 A.2d 865 (1976). After supplemental post-verdict motions have been filed or effectively waived, the court should hold a hearing on all of appellant’s post-verdict motions, and then determine whether it should grant the motions and arrest judgment or deny the motions and resentence the appellant, whichever is appropriate. If either party is aggrieved by this determination, a new appeal may be filed.

The judgment of sentence is vacated and the case remanded for further proceedings consistent with this opinion.

      . Post-verdict motions were, therefore, properly filed within ten days of the May 8, 1979 finding of guilt. See Pa.R.Crim.P. 1123(a).

      . The delay encountered in waiting for the transcript in the present case was unnecessary due to an express provision of Pa.R.Crim.P. 1123(a) which states in pertinent part: “If the grounds asserted do not require a transcript, neither the filing nor argument of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.”

      . Appellant Johnston might be faulted for not filing a motion to vacate the improperly imposed judgment of sentence because it would have given the trial judge an opportunity to recognize his error and rectify it without encountering the delay created by resorting to the appeal process. However, due to the confusion surrounding the requirement of filing post-verdict motions in a de novo summary case which existed before the requirement was clarified by Commonwealth v. Koch, supra, and the recent amendments to the comments to Rules 67 and 1123 of the Rules of Criminal Procedure, we have refrained from assessing such fault to Mr. Johnston in the present case.


author: SPAETH, Judge: MONTGOMERY, Judge,

text:
    437 A.2d 18
    James R. SHELTON v. Ethel EVANS, Sarah Evans Howard, Theresa Evans, Bernice Pinnick Matthews and Benjamin Amos. Appeal of Benjamin AMOS.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1981.
    Filed Nov. 6, 1981.

      David B. Washington, Pittsburgh, for appellants.
    H. David Rothman, Pittsburgh, for appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SPAETH, Judge:

This is an appeal from an order denying a motion for judgment n.o.v. or new trial. The action is for malicious prosecution. The jury returned a verdict of $20,000 compensatory damages and $30,000 punitive damages. Appellant argues that the verdict was not supported by the evidence, and was excessive. Finding no merit in either of these arguments, we affirm.

1

This action was brought in April 1969. In July 1973 the case was tried. When appellant failed to appear, findings by a judge sitting without a jury of $2,500 compensatory damages and $2,500 punitive damages were entered against him. On June 17, 1976, appellant petitioned to open the judgment that had been entered on the findings. The petition was granted on May 25, 1977, and the case was retried, before a jury, in November 1979. The evidence may be summarized as follows.

Appellee, James R. Shelton, was a self-employed plumber, and a life-long friend of Robert and Jessie Evans. He had often made repairs on properties owned by the Evanses. Robert Evans died in 1946. Jessie Evans died in 1967 and in her will named appellee as her sole heir. Her executor, a Pittsburgh attorney, asked appellee to collect the rents on the properties in her estate. Appellee did, depositing the rents he collected in a special account. The executor also transferred an automobile from the estate to appellee.

Appellant, Benjamin Amos, was an attorney practicing in the District of Columbia. He represented several relatives of Robert Evans who were pressing claims against the estate under a contingent fee arrangement whereby appellant would receive a percent of the monies he succeeded in recovering from the estate. Appellant associated himself with a Pittsburgh attorney, Robert Truel. Truel served appellee with a notice of deposition. Answering all questions put to him, appellee was deposed for two days concerning his involvement with the estate. A couple of weeks after the deposition, a constable appeared at appellee’s home late in the evening. In the presence of his wife, appellee was served with a warrant for his arrest on four separate criminal complaints alleging that he had wrongfully converted assets of the estate. The complaints were signed by a relative of Robert Evans, Ethel Evans, whom appellee had known all his life. When the constable ordered appellee to accompany him back to the jail, appellee called his attorney, who convinced the constable that appellee need not go to jail but would appear to answer the charges.

Two hearings were held before the magistrate. On March 12, 1968, Ethel Evans appeared but offered no evidence in support of any of the four complaints. At appellant’s request, the magistrate postponed the proceedings until April 16, 1968, at which time appellant asked that the charges all be withdrawn.

There is no question but that the charges were baseless. Truel testified that he first learned of the charges from appellant. He further testified that Ethel Evans, an elderly, uneducated woman, did not understand either the contents of the charges or the nature of the criminal process she had invoked, and that appellant had asked him to sign the complaints. He further testified that after the first hearing, appellant had assumed the responsibility for gathering evidence to support the charges but never asked him to verify the transfer of the automobile—an asset alleged to have been wrongfully converted.

A cause of action for malicious prosecution requires that the following elements be proved:

A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if
(a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and
(b) the proceedings have terminated in favor of the accused.
Restatement (Second) Torts § 653.

See also, Neczypor v. Jacobs 403 Pa. 303, 308-09, 169 A.2d 528, 531 (relying on Restatement of Torts § 672).

The jury was entitled to find that each of these elements had been proved. The proceedings did terminate in appellee’s favor. No evidence suggested that the proceedings were initiated with probable cause. To the contrary, the jury could reasonably have concluded that the purpose behind the complaints was not to “bring[] an offender to justice” but to induce appellee to relinquish some or all of his claims as sole heir named in the will. Finally, the jury could reasonably have concluded that it was appellant, and not Ethel Evans, who had “initiate[d] or procure[d] the proceedings,” and that he had done so because under his contingent fee agreement a recovery against the estate would be to his financial advantage.

We therefore conclude that so far as the issue of liability is concerned, the lower court properly denied appellant’s motion for judgment n.o.v. or new trial.

2

In determining whether appellant should be granted a new trial on the ground that the jury’s verdict was excessive, we must determine whether either of its two awards, $20,000 compensatory damages, and $30,000 punitive damages, was excessive, and not, as appellant suggests, whether the total award of $50,000 was.

a

In an action for malicious prosecution, compensatory damages may include all of the plaintiff’s actual expenses in defending himself, compensation for loss of liberty or time, harm to reputation, physical discomfort, interruption of business, mental anguish, humiliation, and injury to feelings. See Howarth v. Segal, 232 F.Supp. 617 (E.D.Pa.1964); Lynn v. Smith, 193 F.Supp. 887 (W.D.Pa.1961); Biggans v. Hajoca Corp., 94 F.Supp. 593 (E.D.Pa.1951) aff’d 185 F.2d 982 (3d Cir. 1951).

Appellee could prove only $500—the cost of defending himself against criminal charges—as actual out-of-pocket expenses. It is therefore evident that in awarding $20,000 compensatory damages, the jury expressed its opinion of what represented fair compensation for the intangible injuries appellee had suffered. The award was admittedly considerable; it was not, however, excessive.

As we have mentioned, appellee was arrested, without any warning, in his home and in front of his wife, on four criminal complaints. He almost went to jail. He did have to go to two separate hearings to defend himself. It must have been a nightmare, for he knew he had committed no crime. Moreover, he testified that he had never been arrested before, nor had any criminal charge ever been preferred against him. But there he stood, in the dock, charged by a woman he had known all his life. It was three months before the charges were withdrawn.

Perhaps a young and carefree man might have shrugged all of this off. But appellee was in his fifties, established in his community, a self-employed plumber for thirty years. He testified that suddenly he found himself obliged to explain to his neighbors that he really hadn’t stolen anything from Ethel Evans, and that even after the charges were dropped, he had to continue to explain. He also testified that he had a heart condition.

The jury evidently decided that it had before it an honest, sensitive man, who had suffered a great deal. We cannot say that its decision was unreasonable. What hurts more than an unjust accusation? What is more shameful than stealing from a friend? Of course, some experiences are more painful than these. Still, the jury’s translation of appellee’s pain into $20,000 does not seem so unsupported that we must set it aside.

It is always suspect, when considering the adequacy or excessiveness of a verdict, to refer to the verdict in another case, for no two cases are the same. Still, appellant’s citation of Biggans v. Hajoca Corp., supra, deserves some mention. There the jury awarded $15,000 to each of two plumbing contractors who had been maliciously prosecuted for stealing plumbing supplies. The court found it unnecessary to consider whether the charge on punitive damages had been correct because, it held,

Hajoca is unable to show prejudicial error .... We cannot say that these awards included any sum representing “smart money,” since the compensatory damages, unliquidated in amount, for the humiliation and loss of reputation of two responsible businessmen with families could well attain the amount found by the jury.
Id. at 986.

As the court in Biggans did not find $15,000 for “humiliation and loss of reputation” excessive compensation, so we do not find $20,000 excessive compensation here.

b

Section 908 of the Restatement of Torts, Second, states:
(1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

Section 908 has been cited with approval by our Supreme Court. Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963); Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944). In Chambers the Court held that no punitive damages should have been awarded because there was no evidence that the assault had been “malicious, wanton, reckless or oppressive.” 411 Pa. at 345,192 A.2d at 358. In Hughes the jury awarded $2,500 compensatory damages and $5,000 punitive damages, where the defendant ejected the plaintiff from the defendant’s private office with such force as to break the plaintiff’s arm. The Court held that punitive damages were proper because, given the degree of force used by the defendant, the jury was entitled to find that he “was guilty of outrageous, wanton, wilful or recklessly violent conduct.” 349 Pa. at 481, 37 A.2d at 554. However, the Court also held that punitive damages of $5,000, which the lower court had reduced to $3,000, were excessive and should be further reduced to $1,000. In arriving at this conclusion, the Court took into account that “the compensatory verdict, while not excessive, [was] very substantial,” id.; that the defendant did have the right to eject the plaintiff, so that “[t]he case is not to be compared . . . with those cases where one, with no justification or provocation, puts his hands upon another’s person,” id.; and that “it was not shown that defendant planned or hoped for bodily injury to plaintiff,” id.

Here, we find no extenuating, but only aggravating, circumstances. As an attorney, appellant enjoyed a considerable educational advantage over appellee, who is a high school graduate. Appellant also enjoyed a position of the highest trust:

The continued existence of a free democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened selfgovernment. Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational selfgovernment is impossible.
Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

Code of Professional Responsibility 1 (Final draft 1969). Appellant betrayed this trust. He did not respect the dignity of Ethel Evans but had her sign baseless criminal complaints against appellee. He manipulated the legal system to frighten and humiliate appellee. He did all this, so the jury evidently found, deliberately, without provocation, and for personal gain. The jury’s verdict reflects its outrage.

It may be granted that the jury punished appellant severely. However, we do not believe that $30,000 punishment, imposed on one who has acted as appellant did, is so severe that we must characterize it as “excessive.”

c

Appellant points out that this trial was the second trial, and that at the first trial the verdict was only $2,500 compensatory damages and $2,500 punitive damages. However, we do not regard this fact as sufficient reason to set aside as excessive the later verdicts of $20,000 compensatory damages and $80,000 punitive damages.

If two different juries had heard the evidence and seen appellant, the disparity between the results of the two trials might well be relevant. This is not the case, however. As we have mentioned, the first trial was by a judge sitting without a jury, who entered the verdicts on appellant’s failure to appear. Thus, only one jury has seen appellant, which is to say, only one jury has been in a position to arrive at a fully informed judgment regarding appellant’s conduct.

Affirmed.

MONTGOMERY, J., files a dissenting statement.

MONTGOMERY, Judge,

dissenting:

In my opinion, the verdict in this case is grossly excessive as to both compensatory and punitive damages. For that reason, I would grant a new trial limited to damages only.


text:
    437 A.2d 23
    COMMUNITY MEDICAL SERVICES OF CLEARFIELD INC., and American Medical Affiliates, a Corporation, Appellants, v. LOCAL 2665, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, an Unincorporated Association, and American Federation of State, County and Municipal Employees, AFL-CIO, a National Unincorporated Association, and American Federation of State, County and Municipal Employees, Council 13, AFL-CIO, a State Unincorporated Association and District Council 85 of the American Federation of State, County and Municipal Employees, AFL-CIO.
    Superior Court of Pennsylvania.
    Submitted May 22, 1981.
    Filed Nov. 13, 1981.

      William H. Bishop, Philadelphia, for appellants.
    Jonathan Walters, Philadelphia, for appellees.

      Before CERCONE, President Judge, and MONTGOMERY and VAN der VOORT, JJ.
   CERCONE, President Judge:

We consider today an order denying appellants’ motion for summary judgment, but granting appellees’ like motion, in a libel action instituted by appellants for allegedly defamatory statements contained in two strike bulletins published and circulated by appellees in connection with a labor dispute. We now affirm.

Appellants operate the Clear Haven Nursing Home in Clearfield. The facility was originally run by the County of Clearfield but the County relinquished its responsibility for it to appellants. Appellees are various affiliated labor organizations which represent the non-professional staff at the nursing home in collective bargaining. When the collective bargaining agreement which covers the non-professional employees at the nursing home expired on December 31, 1976 a labor dispute arose and the workers went out on strike. Picket lines were set up outside the nursing and on January 11, 1977 the Clearfield County court issued an ex parte temporary restraining order prohibiting mass picketing and ordering the striking employees back to work. The next day a consent order issued which dissolved the back-to-work order but limited the number of permissible pickets. A new collective bargaining agreement was eventually reached in April of 1977, but not before the publication of the two allegedly defamatory strike bulletins. Appellants filed the instant action seeking damages for the alleged libel. Appellees counterclaimed seeking damages for malicious abuse of process, alleging as the basis for the claim the ex parte temporary restraining order issued January 11. Both sides eventually moved for summary judgment on the original action as well as the counterclaim. In addition A.F.S.C.M.E. International and A.F.S.C.M.E. Council 13 moved for summary judgment claiming they could not be held responsible for the local union’s actions. The court ruled in favor of the unions on the libel action and in favor of the employer-appellant on the malicious abuse of process counterclaim. From the order granting appellees’ motion for summary judgment on the original claim the employer-appellants bring this appeal.

I.

We are presented today with no ordinary libel case. The fact that the alleged libel arose in connection with a labor dispute gives rise to considerations of federal law not normally to be found in such actions. In New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) the United States Supreme Court held that in order for a public official to recover damages for libel the official must prove that the defendant published the defamatory statement with reckless disregard of, or knowledge of its falsity. See also Fox v. Kahn, 421 Pa. 563, 221 A.2d 181 (1966). In Linn v. United Plant Guard Workers of America, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), the Court adopted the New York Times “actual malice” standard for use in defamation cases arising out of labor disputes noting, however, that the use of that standard was not constitutionally compelled. Linn held that the National Labor-Management Relations Act (NLRA), as amended, 61 Stat. 136, 29 U.S.C. § 141 et seq., pre-empted the power of the state courts to award state remedies in labor dispute defamation cases unless the plaintiff pleads and proves both “actual malice” and damages, even if the alleged defamatory language would be actionable per se under state tort law. Cf. Old Dominion Branch No. 946, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). We are asked to determine the correctness of the lower court’s grant of summary judgment for the defendants-appellees in a case where Linn controls the cause of action.

Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Pa.R.C.P. 1035. And see Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970); Bollinger v. Palmerton Area Com. Endeavor, Inc., 241 Pa. Superior Ct. 341, 361 A.2d 676 (1976). Furthermore, summary judgment is only proper in cases which are clear and free from doubt as to the existence of a disputed factual question. See Mallesky v. Stevens, 427 Pa. 352, 235 A.2d 154 (1967); Toth v. Philadelphia, 213 Pa. Superior Ct. 282, 247 A.2d 629 (1968). In ruling on a motion for summary judgment the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, as well as admissions on file, giving to them the benefit of all reasonable inferences to be drawn therefrom. See Hankin v. Mintz, 276 Pa. Superior Ct. 538, 419 A.2d 588 (1980); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa. Superior Ct. 198, 280 A.2d 570 (1971). The record as a whole should be examined in the light most favorable to the party opposing the motion and all doubts as to the existence of a genuine issue about a material fact must be resolved in that party’s favor, that is, against the entry of summary judgment. See Bowman v. Sears, Roebuck & Co., 245 Pa. Superior Ct. 530, 369 A.2d 754 (1976); Husak v. Berkel, Inc., 234 Pa. Superior Ct. 452, 341 A.2d 174 (1975); Schachter v. Albert, 212 Pa. Superior Ct. 58, 239 A.2d 841 (1968). And see Hankin v. Mintz, supra; Ritmanich v. Jonnel Enterprises, Inc., supra. In disposing of such a motion the court’s function is not to decide issues of fact, but solely to determine whether there are material issues of fact to be decided. See Hankin v. Mintz, supra; Ritmanich v. Jonnel Enterprises, Inc., supra.

This would appear to be the first case to consider summary judgment in a labor-related libel case in the Commonwealth. There have been at least two recent cases, however, which considered a lower court’s grant of summary judgment in connection with “public official” defamation actions. We refer to Curran v. Philadelphia Newspapers, Inc., 261 Pa. Superior Ct. 118, 395 A.2d 1342 (1978) (affirmed by an equally divided Court) and Brophy v. Philadelphia Newspapers, Inc., 281 Pa. Superior Ct. 588, 422 A.2d 625 (1980). Curran and Brophy figure highly in the instant discussion because of what they have to say about the summary disposition of New York Times standard defamation cases. After careful reading of these two cases it becomes clear that this Court is of the opinion that the summary disposition of New York Times defamation cases differs in no way from the manner of disposing of other cases in like procedural posture. Nonetheless, for purposes of clarification we quote two passages from Nader v. deToledano, 408 A.2d 31 (D.C.App.1978). The first deals with motions for summary judgment and burdens of proof. .

A party satisfies his burden of production with respect to an issue material to his case when he has made out a “prima facie” case as to such issue—i. e., a sufficiént quantum of evidence which, if credited, would permit judgment in his favor unless contradicted by credible evidence offered by the opposing party. Bailey v. Zlotnick, 77 U.S.App.D.C. 84, 85,133 F.2d 35, 36 (1942) (motion for directed verdict). The establishment of a prima facie case by the party bearing the burden of persuasion as to an issue shifts the burden of producing contradictory evidence to the adverse party. The burden of evidentiary production shifts from side to side during the course of the trial as each party introduces evidence sufficient to satisfy the test. See generally, 31A C.J.S. Evidence, supra, § 110 at 184-88.
The same rules are applicable in a motion for summary judgment. On such motion the well-settled rule is that the moving party bears the burden of proving that no genuine issue as to any material fact exists and that he is entitled to judgment as a matter of law. The movant may discharge his burden of proof by demonstrating that if the case proceeded to trial his opponent could produce no competent evidence to support a contrary position. 10 Wright & Miller, [Federal Practice and Procedure: Civil] § 2727, at 531. A prima facie showing by the movant for summary judgment—i. e., the production of enough evidence to demonstrate such party’s entitlement to a judgment if evidence were uncontroverted at trial—shifts the burden of producing evidence to the party opposing the motion. Summary judgment should be granted to the movant unless the opposing party offers competent evidence admissible at trial showing that there is a genuine issue as to a material fact. Id. at 536-37.
Once the movant has made the requisite showing,
the issue of material fact required by Rule 56(c) to be present to entitle (the opposing) party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial. [First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968).]
In practical effect, this rule requires more of the opposing party than the mere demonstration of disputed factual issues. Bushie v. Stenocord Corp., 460 F.2d 116, 119 (9th Cir. 1972). “[T]he showing of a ‘genuine issue for trial’ is predicated upon the existence of a legal theory which remains viable under the asserted version of the facts, and which would entitle the party opposing the motion (assuming his version to be true) to a judgment as a matter of law.” McGuire v. Columbia Broadcasting System, Inc., 399 F.2d 902, 905 (9th Cir. 1968). A plaintiff opposing a defense motion for summary judgment, in order to make the evidentiary showing that will permit him to advance to trial must “show that he has a plausible ground for the maintenance of the cause of action.” (Citations omitted)

Nader v. deToledano, 408 A.2d at 48. The second passage clearly describes the standard to be applied in these cases and the manner of its application:

The standard against which the evidence must be examined is that of New York Times and its progeny. But the manner in which the evidence is to be examined in the light of that standard is the same as in all other cases in which it is claimed that a case should not go to the jury. If the evidence, so considered, measures up to the New York Times standard, the case is one for the jury, and it is error to grant a directed verdict, as the trial judge did in this case. [Guam Federation of Teachers, Local 1581 v. Ysrael, 492 F.2d 438, 441 (9th Cir.), cert. denied, 419 U.S. 872, 95 S.Ct. 132, 42 L.Ed.2d 111 (1974)].
The import of the Guam decision is that the usual procedural rules should govern summary judgment and that a libel plaintiff need not prove malice twice—first to the judge, then to the jury. According to this view the function of the trial court on such a motion is not to weigh proof and make independent findings, but rather to determine whether or not the plaintiff has demonstrated a genuine issue of material fact from which a jury, using the appropriate burden of proof—“clear and convincing” evidence—could find publication of a defamatory falsehood with actual malice.

Id. at 47. (Emphasis in original).

Having delineated the law applicable to this case we turn now to a consideration of its merits.

II.

The question put is whether appellants can produce that quantum of evidence and reasonable inferences which would allow a jury to conclude that appellees published the alleged defamatory remarks with actual malice as that term has been defined in New York Times and applied to labor cases in Linn.

There were two strike bulletins published by appellees which contained allegedly defamatory matter. The first bulletin was prepared by one John Harvey. At the time of the strike he was the public affairs representative for A.F.S. C.M.E. International. The allegedly defamatory statements contained in this strike bulletin issued January 19, 1977 read:

Affiliates (AMA), the Jenkintown-based firm operated the home, went on record this week advocating ‘bloodshed’ unless AFSCME Local 2655 dismantles its legally-installed sanctioned picket line. The outside firm installed company goons, AMA-paid security guards, on the lines to further threaten strikers. . .
By keeping wages at poverty levels and skimping on basic supplies, AMA saves enough money to keep its private jet in the sky and its corporate offices well appointed in Jenkintown. . .
When bargaining gets tough, AMA jets back to the warmth of its Jenkintown corporate offices, leaving local folks out in the cold and residents lacking proper care and love.

(Emphasis added to show language specifically alleged to be defamatory). On January 25, 1977 a second strike bulletin was published. It had been prepared by James Duffy, an employee of District Council 85. The allegedly defamatory language contained therein reads:

Meanwhile, local visitors to the home report elderly patients being restrained in bed for days on end, wards entirely devoid of any staff and a cold, callous attitude displayed by AMA management.

In order to establish the background for the writing of these bulletins several persons were apparently deposed. It is on these depositions that the motions for summary judgment are based. The most that can be gleaned from John Harvey’s deposition which might reasonably support appellants’ claim of actual malice is that Harvey had no personal knowledge of conditions on the other side of the picket line or of working conditions before the troubles began. He testified that he met with the striking workers and discussed what they wanted to put in the strike bulletin. This information on patient care and worker wages came from them. He did remember specifically having spoken with Litz and Duffy but could recall no other names.

James Duffy’s deposition is even more damaging to appellants’ case than Harvey’s. Duffy testified that he spoke with numerous union members, including Florence Litz. Each union member confirmed generally the information provided by the others. Florence Litz had apparently spoken with the relatives of several of the nursing home’s patients and she related the information to Duffy. Duffy testified that he then confirmed Litz’s reports by speaking with these relatives himself. Furthermore, he testified that the state health inspector informed him that she gave appellants advance notice of impending inspections, which were supposed to be unannounced. He also sated that before each inspection more non-union workers would appear at the nursing home than were normally present and that they would depart afterward. Duffy also claimed to have spoken with some of the workers who had been inside the nursing home during the strike and had had the opportunity to view conditions themselves. Although he did on one occasion enter the nursing home he was not permitted to see the patient-care areas. Florence Litz testified to her personal knowledge about wages and working conditions. She also stated that she had spoken with the friends and relatives of several of the patients and that those persons had complained to her about the quality of care during the strike.

Appellants point to the fact that Duffy could not recall which patients his informants told him were being mistreated or inadequately cared for as indicative of his reckless disregard for the alleged falsehoods in the strike bulletins. The most that can be inferred from this lapse of memory is that he had forgotten the patients’ names; afterall, he was unfamiliar with them because he was not one of appellants’ employees. Appellants also assert that Duffy knew the Pennsylvania Health Department had not found the home understaffed during inspections. In this appellants are correct, but Duffy also testified that he had been told by the state health inspector that the inspections were not unannounced. He also testified that he had personal knowledge that extra non-union workers were brought in in advance of these announced inspections and sent home afterwards. Appellants have not demonstrated any evidence which might somehow counter Duffy’s testimony about the appearance of extra non-union workers, or that he acted in reckless disregard of the falsity of the impression created by their appearance in conjunction with the state inspections. In short, appellants have entirely failed to prove their case. They are incapable of producing sufficient evidence to demonstrate that there is a genuine issue of actual malice or that a jury might reasonably find by clear and convincing evidence that appellees acted with actual malice when they published the disputed strike bulletins.

Thus it is clear that appellants have not met their burden of responding to the summary judgment motion by demonstrating the existence of evidence and reasonable inferences sufficient to sustain a verdict in their favor, were the case to go to trial. Based on this record the court was correct in granting summary judgment on the original claim for appellees.

Affirmed.

      . The court below did not reach this motion since it had already ruled that as a matter of law no actionable defamation had taken place and that neither Council 13, nor the International, nor any of the other defendants could be held liable.

      . The unions have filed no appeal with respect to the entry of summary judgment on the counterclaim for appellants.

      . Curran was affirmed by an equally divided Court. Strictly speaking neither opinion filed in that case carries the weight of precedent. We stress that we do not rely on Curran as precedent.
      In Curran, Judge Spaeth wrote the opinion in support of affirmance and was joined therein by Judge Van der Voort. Judge Cercone, now President Judge, concurred in the result reached by Judges Spaeth and Van der Voort.
      Judge Hester authored the opinion in support of reversal and was joined therein by then President Judge Jacobs and Judge Price. Judge Hester’s opinion does not speak to the issue of the proper method of deciding motions for summary judgment in New York Times defamation cases other than to say that where a material fact remains in dispute such a disposition is improper.

      . Judge Cavanaugh wrote the lead opinion in Brophy. Judge Spaeth wrote a concurring opinion. Judge Hester dissented. Unlike Curran, Brophy does have the weight of precedent.

      . Judge Spaeth’s opinion in support of affirmance in Curran extensively discusses the practical and procedural aspects as well as the propriety of the summary disposition of public figure defamation cases. In Curran Judge Spaeth relied in part on Judge J. Skelly Wright’s concurring opinion in a case before the D.C. Circuit Court of Appeals. See Wasserman v. Time, Inc., 138 U.S.App.D.C. 7, 424 F.2d 920, cert. denied, 398 U.S. 940, 90 S.Ct. 1844, 26 L.Ed.2d 273 (1970). Judge Wright’s Wasserman concurrence caused no small discussion in the federal courts, see Nader v. deToledano, 408 A.2d 31 (D.C.App.1979), and it is not surprising to see that Judge Cavanaugh’s opinion in Brophy takes issue with the same points in Judge Spaeth’s Curran opinion as the Nader v. deToledano court took with Judge Wright’s Wasserman concurrence.
      Judge Spaeth’s opinion in support of affirmance in Curran, based insofar as it is on Judge Wright’s Wasserman concurrence, gives the impression that the summary disposition of New York Times defamation cases differs from the summary judgment norm. Indeed, Judge Cavanaugh devoted a large portion of his lead opinion in Brophy to the refutation of just that proposition. Judge Spaeth, in his concurring opinion in Brophy, went to equal lengths to elucidate his remarks in Curran: (“[Judge Cavanaugh’s] interpretation of Cur-ran is mistaken. I accept responsibility for the mistake since I wrote the statement ...; plainly, it was not as clear as it should have been. Let me therefore try again.” Brophy v. Philadelphia Newspapers, Inc., 281 Pa. Superior Ct. at 605, 422 A.2d at 634. (Emphasis in original)). From Judge Spaeth’s concurrence in Brophy any doubt as to the appropriate method of disposition of these cases has been resolved.

      . The record transmitted to us by the lower court contains only the deposition of John Harvey. The docket lists no other depositions filed. The reproduced record, to the contrary, contains portions of the depositions of James Duffy, Florence Litz, and of appellants’ employee, Ronald P. Knox. It is impossible at this juncture to tell whether the lower court considered all four of these depositions or whether it saw only Harvey’s. For the purposes of judicial economy we will assume that the court viewed all the depositions; we do so because it is clear that even based on the addition of the depositions which the court may not have considered it could not reasonably have found in appellants’ favor.


author: SPAETH, Judge:

text:
    437 A.2d 29
    COMMONWEALTH of Pennsylvania, Appellant, v. Anthony TERRA.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed Nov. 13, 1981.

      Kristine F. Hughey, Assistant District Attorney, Media, for Commonwealth, appellant.
    Thomas A. Bergstrom, Philadelphia, for appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   SPAETH, Judge:

This is an appeal by the Commonwealth from an order suppressing alleged drugs and drug paraphernalia seized without a warrant by county agents who had accompanied federal agents during the execution of a federal warrant to search the premises for a machine gun. The lower court agreed with the Commonwealth that there was probable cause to support the issuance of the federal warrant, but it rejected the Commonwealth’s argument that the county agents’ seizure of the drugs was justified by the “plain view” doctrine of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Instead, the court held that the county agents had probable cause to believe that there were drugs in the apartment, and that they were therefore obliged to get a search warrant for the drugs; it was not enough, in the court’s view, that they should accompany the federal officers during the execution of the warrant to search for the machine gun, and seize any drugs that happened to be in plain view. Although we agree with the lower court that there was probable cause to support the federal warrant to search for the machine gun, we do not agree that there was also probable cause to support a warrant to search for drugs. It follows from this conclusion that the county agents were entitled to seize drugs in plain view. We therefore reverse the suppression order and remand for trial.

Since at least September 1977 Anthony Terra, a Darby Township police officer and the appellee in this case, was one of the subjects of a joint investigation by agents of the Federal Bureau of Alcohol, Tobacco and Firearms (ATF), the Federal Bureau of Investigation, and the Criminal Investigation Division of Delaware County (CID). According to one federal agent, the investigation concerned “alleged firearms and nareotic[s] theft[s] from the Darby Police [ejvidence [ljocker, gambling violations . . . [and] loansharking activities.” N.T. 6.

On September 10, 1979, Dennis E. Dutch, a special agent with the ATF, obtained a warrant from a federal magistrate authorizing a search of the premises at 941 South Avenue, Apartment B -4 in Secane, Pennsylvania, for a Thompson machine gun with the serial number S516465. On September 12, 1979, the warrant was executed by ATF agents, who were accompanied by agents of the FBI, the CID, the Delaware County District Attorney, and the Ridley Township Police Department. In the apartment at the time were appellee and a young woman. Appellee informed the agents that the machine was at his mother’s house, and he offered to allow them to search for the gun there. Nonetheless, the ATF agents searched the apartment. They did not find the machine gun, but they did see, on the dining room table, and on a coffee table, and open shelves, suspected drugs and drug paraphernalia, which were then taken by the CID agents.

Appellee was charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act. On November 30, 1979, he filed an omnibus pre-trial motion seeking suppression of all evidence seized during the September 12 search. On December 20, 1979, the lower court held a hearing on this motion, and on January 15, 1980, it entered an order granting the motion to suppress. It is from this order that the Commonwealth appeals.

On appeal the Commonwealth agrees with the lower court that there was probable cause to support the federal warrant to search for the machine gun. It argues, however, that the court erred in finding that there was also probable cause to support a warrant to search for drugs. The Commonwealth’s position is that there was no such probable cause, and since the CID agents had properly gone along to accompany the federal agents, they were entitled to seize any contraband that was in plain view.

Appellee is in essential agreement with the way in which the Commonwealth has framed the issues. He contends, however, that the federal warrant was not supported by probable cause, and that even if it was, the CID had sufficient probable cause to support a warrant to search for the drugs, so that their warrantless seizure of the drugs was in violation of his constitutional rights. Brief for Appellee at 2, 4A.

1

We must first decide whether there was sufficient probable cause to support the federal warrant. If there was not, there is no question but that both the federal and the county agents were improperly on the premises, and the evidence must be suppressed. Coolidge v. New Hampshire, supra.

The affidavit in an application for a search warrant must contain sufficient information to enable the issuing authority to make an independent judgment that probable cause for a search exists. This means that the issuing authority “must be informed of some of the underlying circumstances from which the informant concluded that [the items to be searched for] were where he claimed they were, and some of the underlying circumstances from which the officer [signing the affidavit] concluded that the informant . .. was ‘credible’ or his information ‘reliable.’ ” Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 1513-14, 12 L.Ed.2d 723 (1964) (citations omitted).

Here the affidavit reads as follows:

(1) During the week of November 20, 1977, Thomas Lacey, an attorney and duly elected magistrate in Delaware County, PA, and Bureau of Alcohol, Tobacco and Firearms Special Agent Randy L. Davis, met Anthony T. Terra, who is a Darby, PA Police Sergeant. At that meeting, Terra displayed to Lacey and Special Agent Davis a Thompson machine gun with an attached silencer which was contained in a mandolin case. Terra stated he was a police officer, but stated to Special Agent Davis that the machine gun was his, and did not belong to the police department.
(2) During the week of February 19, 1978, Terra offered to sell his machine gun to Special Agent Davis for $1800.00.
(3) During the week of March 20, 1978, Special Agent Davis was present with Terra who stated to another person that he (Terra) possessed a Thompson machine gun.
(4) During the week of November 1, 1978, Terra showed Thomas Lacey his (Terra’s) Thompson machine gun. Lacey noted that the serial number of the machine gun was S516465. Lacey furthermore, in the past has observed Terra take the machine gun from a mandolin case which was located in the living room of the apartment of Katherine DiBuono, a/k/a Casey, 941 South Avenue, Apt. B-34, Secane, PA. DiBuono was also present at the time the machine gun was displayed. Terra told Lacey that DiBuono is his girlfriend, and that he lives with her at her apartment at 941 South Avenue, Apt. B-34, Secane, PA.
(5) During the week of January 21, 1979, a close associate of Terra’s told Lacey and Special Agent Davis that Terra and two other Darby Police officers had, in the past, obtained three machine guns by falsely using the name of the Darby Police Department to order them. After these machine guns had been illegally obtained by Terra and the other two officers, they claimed that the guns were never received by the Darby Police Department, although in fact the guns were received by Terra and the two other officers. This conversation was also repeated by the close associate to the affiant on or about February 14, 1979. In addition, the close associate had learned this through repeated conversations with Terra during the year of 1978. A check of the National Firearms Registration and Transfer Record by the affiant reveals that three Thompson machine guns were purchased by the Darby Police Department during 1975.
(6) On August 30, 1979, Agent Davis had a conversation with Terra. The conversation took place in Thomas Lacey’s office, although Lacey was not present. During this conversation, Agent Davis asked Terra if Terra still had his machine gun. Terra answered yes, and added that he would never get rid of it.
(7) A check of the National Firearms Registration and Transfer Record by the affiant revealed that on November 20, 1975, three Thompson .45 caliber machine guns with the serial numbers S-185554, S-245843 and S-516465 were registered to the Borough of Darby Police Department, 44 North Ninth Street, Darby, Pennsylvania.
(8) A further check of the National Firearms Registration and Transfer Record by the affiant indicates that Anthony T. Terra, Jr. does not have any firearms registered to him.
(9) On September 1, 1979, at 941 South Avenue, Apartment B-34, Secane, Pennsylvania, Terra told Lacey that he (Terra) still had the machine gun which was stored in the bedroom of the apartment.

The lower court held that the information in paragraph five did not meet the requirements of Aguilar because it did not indicate why appellee’s “close associate” was credible or his information reliable. The court concluded, however, that even without the information in paragraph five, there was sufficient information from which the issuing authority could make an independent determination that probable cause existed. We agree.

The affidavit, it will be observed, provided the issuing authority with information from four sources. We must therefore examine each of these sources to determine whether the requirements of Aguilar were met.

The first informant was Thomas Lacey, an “attorney and duly elected magistrate in Delaware County.” Affidavit, Para. 1. Lacey provided the following information. During the week of November 20, 1977, appellee, a Darby Police sergeant, showed Lacey and Randy L. Davis, a special agent of the ATC, a Thompson machine gun with an attached silencer. Although appellee said that he was a police officer, he stated that the machine gun was his and did not belong to the police department. Affidavit, Para. 1. During the week of November 1, 1978, appellee again showed Lacey the gun and Lacey noted that its serial number was S516465. Lacey had “in the past” observed appellee in possession of the gun at the apartment of Katherine DiBuono at 941 South Avenue, Apt. B-34, Secane. Appellee told Lacey that DiBuono was his girl friend and that he lived in her apartment. Affidavit, Para. 4. Finally, on September 1, 1979, nine days before the search warrant was issued, appellee told Lacey that he “still had the machine gun which was stored in the bedroom of the apartment.” Affidavit, Para. 9.

The second informant was Special Agent Davis. Davis provided the following information. During the week of February 19, 1978, appellee offered to sell Davis “his machine gun” for $1800. Affidavit, Para. 2. During the week of March 20, 1978, appellee stated to another person, in Davis’s presence, that he possessed a Thompson machine gun. Affidavit, Para. 3. On August 30, 1979, appellee spoke with Davis in Lacey’s office. When Davis asked

appellee if he still had “his machine gun,” appellee said that he did and “would never get rid of it.” Affidavit, Para. 6.

The information provided by Lacey and Davis met the first requirement of Aguilar, that the issuing authority be told how the informant obtained the information, for all of the information was the result of personal observations by the informants. The information also met the second requirement of Aguilar, for the informants were a. “duly elected magistrate” and a government agent—persons whose reliability need not otherwise be established. See United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965) (“Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.”)

The third informant was the affiant himself, who checked the National Firearms Registration and Transfer Record and obtained the following information. On November 20, 1975, three Thompson .45 caliber machine guns with serial numbers S-185554, S-245843 and S-516465 were registered to the Darby Police Department. Affidavit, Para. 7. Appellee, however, had no firearms registered in his name. Affidavit, Para. 8. This information also met both requirements of Aguilar.

The fourth informant was a “close associate” of appellee, who had learned “through repeated conversations” with appellee that he and two other Darby police officers had obtained three machine guns for themselves “by falsely using the name” of the police department. Affidavit, Para. 5. This information met the first requirement of Aguilar, for the issuing authority was informed how the informant obtained it, but it did not meet the second requirement, for it included none of the underlying circumstances from which the affiant concluded that the informant was credible or his information reliable.

'■ Appellee contends that without the information contained in paragraph 5—that appellee and two other officers had illegally obtained three machine guns by falsely using the name of the Darby Police Department—there was not sufficient information for the issuing authority to make an independent judgment that his possession of a machine gun registered to the police department was illegal. In his brief counsel for appellee states that he “is simply unaware of any statute [or] case law . . . which makes it a criminal offense for a police officer to be in possession of a weapon which is properly registered to the police department to which he is assigned.” Brief for Appellee at 31. Counsel further argues that any statements that the gun was appellee’s, not the department’s, and any attempt to sell the weapon, are irrelevant. Id. at 31.

We disagree. We believe that the issuing authority was entitled to make an independent judgment that appellee's possession of the machine gun was probably illegal, given reliable information that the gun was registered to the police department; that no gun was registered to appellee; that appellee had falsely—as shown by the registration— said that the gun was not the department’s but his; that appellee said he kept the gun in the bedroom of his girl friend’s apartment; and that on one occasion, appellee offered to sell the gun. These facts are quite inconsistent with counsel’s suggestion that the affidavit merely depicted “a police officer ... in possession of a weapon which is properly registered to the police department . . . . ”

2

We must now decide whether the seizure of the drugs and drug paraphernalia by the CID agents who accompanied the federal agents executing the warrant was in violation of the Fourth and Fourteenth Amendments.

The Commonwealth argues that the seizure was justified by the “plain view” doctrine of Coolidge v. New Hampshire, supra. In Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979), we summarized this doctrine as follows:

Coolidge “emphasized that under the so-called ‘plain view’ doctrine it would sometimes be permissible for police to seize items found while executing a search warrant naming other objects[.]” W. LaFave, 2 Search and Seizure 165 (1978); see 403 U.S. at 465-68, 91 S.Ct. at 2037-39. The police must come upon the evidence inadvertently, in a place where they have a legal right to be at the time of discovery, and it must be immediately apparent to them that the evidence is of incriminating character. See 403 U.S. at 465-69, 91 S.Ct. at 2037-40; Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974).
“[T]he police are not required to guess at their peril the precise moment at which they have probable cause.” Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). “If the inadvertent discovery limitation is to make any sense at all, ... it must at least mean that a discovery of objects not named in the search warrant is always inadvertent ... if there were not sufficient grounds to justify the issuance of a warrant which also named those objects as among the things to be seized.” LaFave, supra at 179. (emphasis in original). This “inadvertent discovery” exception has been applied in numerous cases. See e. g., United States v. Davis, 542 F.2d 743 (8th Cir. 1976); United States v. Wysong, 528 F.2d 345 (9th Cir. 1976); United States v. Wolfe, 375 F.Supp. 949 (E.D. Pa.1974); Alford v. State, 307 So.2d 433 (Fla.1975); State v. Hubbard, 215 Kan. 42, 523 P.2d 387 (1974); State v. Van Beek, 87 S.D. 598, 212 N.W.2d 659; 88 S.D. 154, 216 N.W.2d 561 (1974); State v. Clark, 552 S.W.2d 256 (Mo. App.1977).
Id., 273 Pa.Super. at 528-529, 417 A.2d at 1174-75.

In Millard, the police, while executing a warrant to search for a key chain and assorted frozen meats, seized a bolt and wrench. We held that since “the facts of record would not have supported the inclusion of the bolt and wrench in the search warrant at the time of [its] issue . . . their discovery was ‘inadvertent.’ ” Id., 273 Pa.Super. at 530, 417 A.2d at 1175.

Applying these principles here, the Commonwealth argues that the CID agents had “a legal right” to be in the apartment, since they were there to assist the federal agents in the execution of the warrant to search for the machine gun; that the drugs and drug paraphernalia were “immediately apparent,” since they were found on table tops and open shelves; and finally, that discovery of the drugs and drug paraphernalia was “inadvertent” in that, although the federal and county agents suspected they might find drugs and planned what to do if they did, they did not have enough information to make out probable cause for the issuance of a warrant to search the apartment for drugs. Appellee’s difference with the Commonwealth revolves around the third of these propositions; while agreeing that Coolidge’s requirement of inadvertence can be met by an absence of probable cause, appellee contends that here there was probable cause, and, therefore, that the CID agents could, and should, have obtained a warrant.

At the suppression hearing ATF Agent Dutch, the affiant on the application for the federal warrant, testified that the ATF, the FBI, and the CID had been engaged in an investigation of appellee since September 1977. The investigation focused on gambling, loansharking, and the theft of firearms and drugs from the Darby Police Department. N.T. 6. Dutch testified that he had first obtained information about drug use by appellee in March 1978, and had subsequently received similar information “[o]n approximately eight or ten separate occasions,” N.T. 15, the most recent of which was “[approximately four months prior” to September 1979, when the warrant to search for the machine gun was issued, N.T. 16.

It is settled that stale information cannot support a finding of probable cause. Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981); Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971); Commonwealth v. Nycz, 274 Pa.Super. 305, 418 A.2d 418 (1980); Commonwealth v. Albert, 264 Pa.Super. 390, 399 A.2d 1106 (1979). Information of drug use by appellee “[approximately four months” old was too stale to support a finding that it was probable that drugs would be found in appellee’s apartment in September 1979. See Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582 (1975) (five month old information stale); Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973) (61 day old information stale); Commonwealth v. Hagen, 240 Pa.Super. 444, 368 A.2d 318 (1976) (information at least one and one-half months old stale); Commonwealth v. Novak, 233 Pa.Super. 236, 335 A.2d 773 (1975) (seven week old information stale); Commonwealth v. Suppa, 223 Pa.Super. 513, 302 A.2d 357 (1973) (16 day old information stale without evidence of continuing activity); Commonwealth v. Bove, 221 Pa.Super. 345, 293 A.2d 67 (1972) (34 day old information stale).

In holding that there was probable cause to search for drugs, the lower court relied on the fact that both the federal and county agents suspected that there might be drugs on the premises and planned what to do if they found them. Majority opinion at 32-33. There is no question but that all of the agents present suspected that they might find drugs, N.T. 10, 89, 104, 112, 115, 132-35, and planned that any drugs they found would be taken by the CID agents, N.T. 69-70, 91-94, 115-16, 132-35.

There are many times when a police officer may “expect” to find evidence in a particular place, and that expectation may range from a weak hunch to a strong suspicion. However, the Fourth Amendment prohibits either a warrant to issue or a search based on such an expectation. Yet if in the course of an intrusion wholly authorized by another legitimate purpose, that hunch or suspicion is confirmed by an actual observation, the police are in precisely the same position as if they were taken wholly by surprise by the discovery. The same exigent circumstances exist, and no warrant could have been obtained before the discovery.
United States v. Hare, supra at 1294.

The order of the lower court is reversed and the case remanded for trial.

      . All references to the notes of testimony are to the December 20, 1979, suppression hearing.

      . The ATF agents subsequently obtained the machine gun, with appellee’s consent, at the house of appellee’s mother.

      . 35 P.S. § 780-101 et seq.

      . The order is appealable because it will either result in the termination of, or will substantially handicap, the prosecution. Commonwealth v. Kunkel, 254 Pa.Super. 5, 385 A.2d 496 (1978).

      . A copy of the affidavit was attached to appellee’s memorandum of law in support of his motion to suppress.

      . Both the Commonwealth and appellee draw our attention to two federal cases also holding that the “inadvertence” requirement of Coolidge is met by an absence of probable cause. United States v.

        Sanchez, 509 F.2d 886 (6th Cir. 1975); United States v. Hare, 589 F.2d 1291 (6th Cir. 1979). The Second Circuit has also adopted this rule. See United States v. Liberti, 616 F.2d 34 (1980), cert. denied 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 808 (1980).