author: McEWEN, Judge:

text:
    463 A.2d 1146
    COMMONWEALTH of Pennsylvania, Appellant, v. Frank SAUNDERS, Surety for James Blackwell.
    Superior Court of Pennsylvania.
    Argued May 2, 1983.
    Filed July 29, 1983.

      Michael J. Ehling, Assistant County Solicitor, Media, for Com., appellant.
    Nathaniel C. Nichols, Chester, for appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   McEWEN, Judge:

This appeal has been taken from the denial of the right of the County of Delaware to attach or withhold a portion of the salary of an employee of the County when the County has obtained a judgment against the employee as a result of a transaction that did not arise from the employer-employee relationship.

Appellee was not an employee of the County of Delaware when, in July 1977, he signed as surety on an appearance bail bond on behalf of a defendant in a criminal case. When the defendant failed to appear, a bench warrant was issued for the arrest of the defendant and the bail bond upon which appellee was surety was forfeited. Appellee subsequently became an employee of the County of Delaware.

The County entered a confession of judgment against appellee for the amount for which he had been surety on the bail bond, namely, two thousand five hundred dollars ($2,500.00), initiated execution proceedings and attached thereunder the regular pay check that appellee received from the County in the amount of fifty dollars ($50.00) per check. Appellee sued to halt the attachment and the Common Pleas Court directed the County of Delaware to halt the attachment and to return to appellee such sums as had been withheld under the attachment. We affirm.

Appellant in its able brief quite candidly acknowledges that it asserts a minority' position and concedes that the prevailing view of the majority holds that a plea in setoff or counterclaim cannot be advanced as a defense in an action to recover exempt property. Appellant relies, however, upon a careful analysis of the Wage Payment and Collection Law, 43 P.S. § 260.1 et seq., to urge that we provide for Pennsylvania to join the ranks of the minority View described in 20 Am.Jur.2d Counterclaim, Recoupment and Setoff, § 33 (1965):

In some states the right of setoff is not subordinate to the right of exemption from execution, and a defendant may interpose as a counterclaim or setoff a debt owing to him by the claimant in an action to recover ' exempt property. The reason assigned for this view is that exemption statutes provide for exemption from levy and sale only, and in no wise affect the rights of parties litigant.

Appellant would further seek to persuade that the remedy it here advocates is even a benevolent procedure:

In summary, then, the Appellant, County Of Delaware, in an effort to collect upon a debt owed to it by one of its employees, Appellee, Frank Saunders, exercised, in a reasonable manner and amount, rights of self-help conferred upon it and specifically acknowledged by the Wage Payment and Collection Law. Indeed, however painful these pay-check deductions may have been to the Appellee, they were far less intrusive that other actions available, such as executions on household goods and furnishings or even the threat of discharge.

We cannot accept the argument of appellant. Few principles are so widely and correctly understood as the fundamental tenet that wages are exempt from attachment. “Generally, in an action the subject of which is exempt property, a defendant [here, the County] will not be permitted to defeat the exemption by setting up a counterclaim or setoff, although there may be no express statutory provision protecting exempt property from the right of counterclaim or setoff.” 20 Am.Jur.2d Counterclaim, Recoupment and Setoff, § 33 (1965). “[T]he common-law rule is that the compensation of public officers or employees cannot be subjected to the demands of their creditors through the process of attachment or garnishment; and this rule is deemed to apply even in the absence of an express constitutional or statutory provision exempting such compensation.” 6 Am.Jur.2d Attachment and Garnishment, § 180 (1963).

In Pennsylvania, the applicable statute, originally enacted in 1845 , states:

The wages, salaries, and commissions of individuals shall, while in the hands of the employer, be exempt from any attachment, execution or other process except upon an action of proceeding for support or for board for four weeks or less. Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended, Act of April 28, 1978, P.L. 202, No. 53, § 10(95), 42 Pa.C.S.A. § 8127(a).

We are of the view that this quite clear, specific statutory declaration that wages shall be exempt from attachment and execution precludes judicial enlistment in the ranks of the minority view. Appellant asserts that “[e]xercise of a right of setoff or counterclaim is, quite simply, not the same thing as ‘attachment, execution or other process’ ”. Such a claim would sacrifice substance to exalt form. Rather, we share the view of the distinguished Judge Louis A. Bloom who opined:

It is clear that the Commonwealth, after receiving a judgment against the petitioner, decided to help themselves to his pay check.
Clearly, this act is improper. While we do not declare the Commonwealth’s actions to have been exercised in bad faith, clearly they were improper. As early as 1853, our Supreme Court realized the importance of not allowing a man’s wages to be attached.

Order affirmed.

      . Act of April 15, 1845, P.L. 459, § 5, 42 P.S. § 886.

      . See Park v. Matthews, 36 Pa. 28, 2 Grant 136 (1853).


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    463 A.2d 1148
    Stuart M. BILLS and Anita M. Bills v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1983.
    Filed July 29, 1983.
    Petition for Allowance of Appeal Denied Jan. 31, 1984.

      John J. Hart, Sellersville, for appellant.
    Miriam M. Reimel, Bristol, for appellees.
    Before CERCONE, P.J., and JOHNSON and MONTEMURO, JJ.
   JOHNSON, Judge:

This is a consolidated appeal from a judgment awarding no-fault benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act. The injuries giving rise to the claim occurred on August 21, 1979 when a dune buggy in which the claimant was a passenger rolled over while being operated on a privately-owned field. Since we hold that the dune buggy here involved was not a “motor vehicle” as defined by the No-fault Act, we reverse the order and judgment of the trial court.

The sole question on this appeal is whether a dune buggy fits within the definition of a “motor vehicle” as contained in the No-fault Act. Although any victim of an accident resulting in injury is entitled to receive basic loss benefits in accordance with the Act, 40 P.S. § 1009.201, a “victim” is defined by the Act as “an individual who suffers injury arising out of the maintenance or use of a motor vehicle” 40 P.S. § 1009.103: This latter section of the Act further defines the term “motor vehicle” as meaning “a vehicle of a kind required to be registered under the Act of April 29, 1959 (P.L. 58, No. 32), known as The Vehicle Code.” We therefore must look to the Vehicle Code, and any applicable case law, to determine whether the dune buggy in which the claimant was riding at the time of her injury is a “motor vehicle” for purposes of recovery under the No-fault Act.

In Siefert v. Nationwide Insurance, 289 Pa.Super. 160, 432 A.2d 1101 (1981) our court was called upon to consider whether a trail bike, which had neither headlights, taillights, nor a horn was a vehicle of a kind required to be registered under the Vehicle Code. There, we reviewed the statutory mandate that registration of a vehicle shall be refused when the vehicle is not constructed or equipped as required by the Vehicle Code. After noting that every vehicle operated on a highway is required to be equipped with a head lamp system, a rear lighting system and a horn or other audible warning device, we concluded that trail bikes necessarily cannot be registered because they lack headlights, taillights and horns. 289 Pa.Super, at 163, 432 A.2d at 1102. From that finding, we concluded that a trail bike is not “a vehicle of a kind required to be registered” and thus the trail bike in Siefert was not a “motor vehicle” as defined by the No-fault Act. Id.

From the record in the appeal before us, we find that the dune buggy was not equipped with a rear lighting system, turn signals and hazard warning lights, a muffler, and rear wheel shields, all of which are required for operation on a Commonwealth highway. The lack of this equipment, alone, would permit us to conclude that the dune buggy is not “a vehicle of a kind required to be registered” were we to apply the rationale of our court in the Siefert case.

We feel that further analysis is appropriate on this appeal. We note that the dune buggy had never been insured in this Commonwealth nor had it ever been inspected or licensed in Pennsylvania or any other state. It had been assembled in January 1979, using a chassis and roll cage purchased from Fibertech, a California supplier, and miscellaneous other parts acquired by the owner either from junkyards or old cars. After assembly, the dune buggy was transported on a trailer to a garage located directly across a highway from the privately-owned field where the accident occurred.

We are satisfied from the record that this particular dune buggy was operated only on privately-owned fields and only had contact with a Commonwealth highway when being moved between its storage location and the fields directly across the road. The road which was traversed in moving the dune buggy to and from the fields where it was operated exclusively was a two-lane dead-end road (Old Route 13) with its terminus only fifty feet from the garage driveway where the vehicle was stored. The dune buggy was driven straight across the road to and from the fields. We have no difficulty in concluding that a dune buggy which had contact with the public highways only on seven occasions between February and August 1979, and then merely to cross a two-lane highway to and from a privately-owned field, was not being maintained or used on a public highway within the meaning of the No-fault Act.

We recognize that our court has recently held that the purposes of the Act are not advanced where a court seeks to restrict the phrase “maintenance or use of motor vehicle” to include only the maintenance or use of motor vehicles when used as vehicles on the highway. Crawford v. Allstate Insurance Company, 305 Pa.Super. 167, 172, 451 A.2d 474, 477 (1982). In Crawford, we reversed the trial court’s order sustaining a preliminary objection in the nature of a demurrer where the utility pick-up truck involved, both prior and subsequent to the accident, had been operated upon public highways as well as upon railroad tracks (where the subject accident occurred). There, we determined that the pick-up truck was, in fact, a “motor vehicle” under the No-fault Act since it had been operated upon public highways and was registered in Ohio. We find the facts in Crawford to be distinguishable from this instant appeal.

While we accept the remedial spirit of the No-fault Act as set forth in both Articles I and II, and while we are cognizant that, if we are to err in ascertaining the intent of the Legislature, we should err in favor of coverage for the insured, Crawford, supra, 305 Pa.Super. at 170, 451 A.2d at 476, we do not find this to be either a close or doubtful case. Our General Assembly has found and declared:

§ 1009.102 Findings and purposes
(a) Findings.—The General Assembly hereby finds and declares that:
(1) motor vehicles are the primary instrumentality for the transportation of individuals;
(2) the transportation of individuals by motor vehicle over Commonwealth highways and other highways significantly affects intrastate commerce, particularly in metropolitan areas;
(3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce; ...
(b) Purposes.—Therefore, it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.

40 P.S. § 1009.102 (emphasis added). It seems reasonable to assert that our legislature did not have in mind that every conceivable injury arising from the use of any conceivable self-propelled vehicle where the accident might occur anywhere in the Commonwealth would result in no-fault benefits under the Act. Even in Crawford, we were able to determine that the vehicle there involved had been used, from time to time, on the public highways.

[51 Appellees argue that since the dune buggy here involved could have been driven on a highway, and since it is self-propelled, it fits the definitions of “vehicle” and “motor vehicle” contained in the Vehicle Code. With this proposition, we readily agree. See 75 Pa.C.S.A. § 102. As appellees point out in their Brief, however, the issue remains whether this dune buggy is a vehicle “of a kind required to be registered under [the Vehicle Code].”

We need not decide, nor do we attempt to determine, whether some other dune buggy, differently equipped or put to some other use, might fit within the ambit of the No-fault Act. We here merely hold that an uninsured, unregistered vehicle which upon assembly lacks a substantial portion of the minimum equipment required for registration in this Commonwealth and which, at the time of the accident, continuously has been operated exclusively off of public highways without such required equipment, is not “a vehicle of a kind required to be registered under [the Vehicle Code].”

We thus conclude that the dune buggy here involved was not a “motor vehicle” as defined by the No-fault Act. Accordingly, the wife-appellee does not fall within the No-fault Act’s definition of “victim” and appellees are not entitled to basic loss benefits from Nationwide.

We point out that the distinguished trial judge, the Honorable Kenneth G. Biehn, did not have the benefit of our reasoning in Siefert v. Nationwide Insurance, supra, which was decided eight days following the well-reasoned Opinion and Order filed by the trial court in this case.

For the reasons set forth in this opinion, the order and judgment of the trial court are reversed, and the case is remanded for the entry of an order and judgment consistent with this opinion. Jurisdiction is not retained.

      . Nationwide Mutual Insurance Company took its first appeal on July 15, 1981 at No. 1816 Philadelphia, 1981 from the order entered June 19, 1981 sustaining the Petition for No-fault Benefits. On July 16, 1981, Nationwide praeciped to have the June 19th order docketed, and on July 17, 1981 filed a second Notice of Appeal from the judgment, at No. 1863 Philadelphia, 1981. On July 16, 1981, the trial court vacated its order of June 19th and entered a new order which provided for the award of benefits together with interest thereon at the rate of 18%. After praeciping that second order to judgment on the docket, Nationwide then took its appeal, on August 7, 1981, at No. 2102 Philadelphia, 1981 from that second judgment. On October 29, 1981, the three appeals were consolidated for argument.

      . Act of July 19, 1974, P.L. 489, No. 176, § 101 et seq.; 40 P.S. § 1009.101 et seq. (Supp. 1982-83) (hereinafter cited as the No-fault Act).

      . In Siefert v. Nationwide Insurance, discussed infra, we recognized that the 1959 Vehicle Code had been superseded by the 1976 Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81; 75 P.S. § 101 et seq. Finding the legislature’s failure to amend the No-fault Act by citing the 1976 Vehicle Code a mere oversight, we proceeded to apply the 1976 Vehicle Code provisions. Here, as there, we note that our result in this case would be the same under the 1959 Vehicle Code. See Siefert v. Nationwide Insurance, 289 Pa.Super. 160, 161-62 n. 2, 432 A.2d 1101, 1102 n. 2.

      . Deposition of Andrew C. Simon, September 24, 1980, pp. 10-11, 17, R.R. pp. 61a-62a, 68a; Answer to Interrogatories, No. 24, filed November 5, 1980.

      . 75 Pa.C.S.A. §§ 1302(a), 1306(5), 4303, 4523, 4533.

      . Deposition of Joseph Grznar, April 1, 1981, p. 4, R.R. p. 41a.

      . Id., p. 7, R.R. p. 44a.

      . Deposition of Andrew Simon, supra, n. 4, pp. 15-17, 25-26, R.R. 66a-68a, 76a-77a.

      . Id., p. 26, R.R. p. 77a.

      . Id.

      . Cf. Regulation of the Pennsylvania Insurance Department:
      C. "Motor vehicle”—motor vehicle means a vehicle of a kind required to be registered under' The Vehicle Code and shall not include:
      (e) motor vehicles which are not registered because they are used exclusively off of public highways; ...
      31 Pa.Code § 66.1-103(c), cited in The Pennsylvania No-fault Motor Vehicle Insurance Act (Pa.T.L.A., D. Shrager ed. 1979).

      . The New Jersey Supreme Court has held that a dune buggy is not a private passenger automobile within the meaning or contemplation of the New Jersey No-fault statute. Therefore, an insured injured in an off-road accident involving a dune buggy was not entitled to personal injury protection benefits. Wilno v. N.J. Mfrs. Ins. Co., 89 N.J. 252, 445 A.2d 713 (1982), reversing 180 N.J.Super. 146, 434 A.2d 605 (1981).
      Also, dune buggies have been held not to be automobiles within the meaning of uninsured motorist provisions. Kansas Farm Bureau Ins. Co. v. Cool, 205 Kan. 567, 471 P.2d 352 (1970); see also Annot., 65 A.L.R.3d 851, 874-75 (1975).


text:
    463 A.2d 1152
    COMMONWEALTH of Pennsylvania v. Evangeline KING, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 17, 1983.
    Filed July 29, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and MONTEMURO, JJ.
   JOHNSON, Judge:

Evangeline King, appellant, was found guilty of simple assault following a non-jury trial before the Honorable Victor J. DiNubile on July 7, 1981 and immediately sentenced to six months non-reporting probation.

Post-trial motions were filed, nunc pro tunc, on August 10, 1981 alleging (1) the Commonwealth’s petition to extend under Pa.R.Crim.P. 1100 was improperly granted, and (2) the insufficiency of the evidence to establish the offense of simple assault. The motions were denied on December 16, 1981, appellant was again sentenced to six months non-reporting probation and this appeal followed.

Appellant now renews her Rule 1100 claim, and, additionally, contends that (a) her jury waiver colloquy was inadequate and (b) trial counsel was ineffective for failing to preserve the jury waiver claim.

As to the Rule 1100 claim, we have examined the briefs of the parties, and the certified record including the Notes of Testimony dated July 7, 1981 involving the Commonwealth’s petition to extend and we find the claim to be without merit. The opinion of Judge DiNubile adequately addresses and disposes of this issue, and we accept his disposition of the Rule 1100 issue for purposes of allocatur.

• With respect to the jury trial waiver claim, we note initially that the substantive challenge to the colloquy was not presented to the trial court and would be waived, but for the ineffectiveness claim. Cf. Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). Also, the Commonwealth concedes that the colloquy was inadequate. See Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973).

Nevertheless, the ineffectiveness of trial counsel is only established when the substantive claim has arguable merit and it is determined that trial counsel had no reasonable basis, designed to advance defendant’s interest, for counsel’s failure to raise the issue. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

We note from the record that the incident here involved was characterized as a “scuffle” by the victim and a “fight” by the defendant. On January 2, 1981, the victim alighted from a bus at the corner of 22nd and Cambria in the city of Philadelphia. The defendant crossed the street and some words were exchanged between the two women. The victim testified that she had previously worked at a restaurant with the defendant, and had known her for about a year prior to the incident. During the fight, the victim was bitten on her finger and scratched below her left eye and received outpatient treatment at Temple Hospital.

The defendant testified that the victim approached her, began getting loud with the defendant, and cursed her. A fight ensued, the victim dropped a plastic bag containing shoes and some cosmetics, and after the victim left the scene, the defendant picked up the plastic bag and departed. The same evening, the defendant turned herself in to the police and returned the victim’s bag to the receiving detective.

At trial, the defendant did not deny having struck the victim or that a fight took place. The jury trial waiver colloquy consists of four pages of transcript, the testimony of the victim (including cross-examination) thirteen pages, and the testimony of the defendant (including cross-examination) six pages. The only witnesses who were present at trial and testified were the victim and the defendant. Credir bility has not been raised as an issue in this case. Although the defendant was tried on charges of robbery, theft by receiving stolen property, theft by unlawful taking, and simple assault, she was acquitted on all charges except simple assault. The trial court terminated the probation on December 16, 1981 at the time of the denial of post-trial motions.

Finally, we note that the distinguished trial judge observed, at the conclusion of the very brief trial:

... [T]his is not the kind of case that really we have the time to develop in court. It is something the two of you—you are good citizens, there is no question about it—you should not take the time of this Court on this matter. Unfortunately, we don’t have the time; and people, like yourselves, adults, reasonable people, should be able to settle this thing by yourselves.

Notes of Testimony, July 7, 1981, pp. 27-28.

The appellant now seeks a new trial due to the admittedly deficient jury waiver colloquy. But as the Commonwealth points out, correctly, we believe, the appellant fails to allege any facts which, if proven, show that no reasonable basis existed for trial counsel’s failure to contest the faulty jury waiver colloquy.

Appellant has dropped her claim of insufficiency of the evidence on this appeal, and our perusal of the record provides ample reason to understand why. A finding of ineffectiveness cannot be made unless we can conclude that the alternative not chosen—insisting on an adequate waiver colloquy or petitioning to withdraw the jury waiver—offered a potential for success substantially greater than the tactics actually utilized. Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 604-605, 235 A.2d at 352-53. Appellant’s current counsel offers nothing more than the admitted deficiency of the colloquy. Without more, and on these particular facts, we will not conclude that trial counsel was ineffective in failing to argue the defective jury waiver colloquy on post-trial motions. Cf. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981).

Since we are able to conclude that .the claim of ineffectiveness lacks merit under any circumstances, we affirm the judgment of sentence, without remand, even though appellate counsel and trial counsel are both representatives of the Defender Association of Philadelphia. See Commonwealth v. Bossick, 305 Pa.Super. 196, 451 A.2d 489 (1982).

Judgment of sentence affirmed.


author: MONTEMURO, Judge:

text:
    463 A.2d 1155
    Ida M. FULKROAD and Carl F. Bonawitz, Administrators of the Estate of Warren D. Bonawitz, Deceased, Appellants, v. Frances A. Runkle OFAK.
    Superior Court of Pennsylvania.
    Argued March 8, 1983.
    Filed July 29, 1983.

      Gregory M. Kerwin, Harrisburg, for appellants.
    Don A. Leatherman, Harrisburg, for appellee.
    Before CERCONE, President Judge, and WICKERSHAM and MONTEMURO, JJ.
   MONTEMURO, Judge:

The sole question for our review on this appeal is whether an adjudicated incompetent may execute a valid beneficiary designation for group life insurance benefits. Appellants, Ida M. Fulkroad and Carl F. Bonawitz, administrators of the estate of Warren D. Bonawitz; deceased, contend that the lower court erred in failing to void the designation under 20 Pa.C.S.A. § 5524, notwithstanding the court’s de facto determination that the deceased was competent at the time he named the beneficiary.

The deceased, Warren D. Bonawitz, was adjudicated incompetent on August 11, 1954. He was placed in the Harrisburg State Hospital where he remained until his discharge on January 24, 1970. During his sixteen year stay in the hospital, the deceased was befriended by the appellee, Mrs. Ofak, who was employed as a nurse’s aide at the time. On July 6, 1970, the deceased was employed by the Brubaker Tool Corporation in Millersburg, Pennsylvania. On August 20, 1970, the deceased designated the appellee as the beneficiary on his group life insurance policy. The deceased worked at the Brubaker plant until his death on April 18, 1980. He was never adjudicated competent.

The proceeds from the deceased’s group life insurance policy were paid to the appellee in the amount of $4,000.00. The appellants filed a petition in equity in the Court of Common Pleas of Dauphin County, asking that court to void the beneficiary designation executed by the deceased on the ground that 20 Pa.C.S.A. § 5524 rendered the deceased legally incapable, as an incompetent, to make “any contract or gift or any instrument in writing.” The lower court recognized that a literal application of this statute would seemingly dictate a result consistent with the appellants’ argument. However, the lower court declined to construe the statute in this manner. Instead, the court believed that “the designation of a revocable beneficiary on a life insurance policy should be judged by the same principles as the writing of a will” (lower court opinion at 6) and basically agreed with the appellee’s argument that under In Re Lanning’s Estate, 414 Pa. 313, 200 A.2d 392 (1964) and In Re Mohler’s Estate, 343 Pa. 299, 22 A.2d 680 (1941), “... despite the statutory provision, an adjudication of mental incapacity prior to the execution of a will does not command the conclusion that such a' will is invalid and when a testator has been adjudged incompetent, it merely shifts the burden-to the proponents of a will to prove testamentary capacity.” (Lower court opinion at 6.)

Our review on appeal from a decree entered by the Orphans’ Court is extremely limited. We can modify a decree “only if the findings on which it rests are not supported by competent .or adequate evidence or if there has been an error of law, an abuse of discretion, or a capricious disbelief of competent or credible evidence.” In re Estate of Hastings, 479 Pa. 122, 130, 387 A.2d 865, 869 (1978).

Section 5524 provides in pertinent part:

An incompetent shall be incapable of making any contract or gift or any instrument in writing after he is adjudged incompetent and before he is adjudged to have regained his competency.

Our research indicates that this particular statute has been interpreted, consistently, not to mandate a conclusive determination of incapacity. Rather, it has been long held that an adjudication of incompetency merely raises a presumption subject to rebuttal by proponents of the “instrument” in question to show that at the time of its execution the maker was, in fact, capable. This interpretation was explicated for the first time in Hoffman’s Estate, 209 Pa. 357, 58 A. 665 (1904) where the Pennsylvania Supreme Court, construing the predecessor to § 5524, Act of June 25, 1895, P.L. 300, § 5, stated that:

The difficulty in the case which probably misled the learned judge below was that the claims of both parties are extreme, and neither can be sustained in its entirety. The testator was decreed to be of feeble mind and incapable of managing his affairs in December, 1902, and made the codicil to his will which is the cause of contention here in April, 1903. Appellant relying on the literal wording of section 4 of the act that after the decree “the said person shall be wholly incapable of making any'contract or gift whatever or any instrument in writing,” contends that the codicil is ipso facto void as a matter of law and must be totally disregarded. The proponents of the codicil on the other hand contend that as there is no expressed intent to repeal the provisions of the Wills Act, the words “any instrument in writing” do not include a will, and the codicil is prima facie valid, and there being no evidence that the testator was non compos when he executed it, it must stand without further contest.
Neither position is altogether sound. Section 7 of the act provides that “if at any time after the decree ____ the party----shall become able to care for his property, he or any of his family may present a petition to the court setting forth such fact,” and after hearing the court may so decree and discharge the guardian, etc. This is an express provision for setting aside the decree and restoring the status of contractual capacity during the lifetime of the party, but it is not exclusive of the ordinary rights and proceedings in regard to wills. The will of Edward Hoffman was made before the decree of incapacity against him. But that would not prevent a contestant from showing that he was non compos when he made it. And on the other hand the making of the codicil after the decree would not bar the parties from showing that he was of sound disposing mind when he made it. The contention of appellant therefore that the death of Hoffman without any revocation by the court of the decree of incapacity closed all inquiry on the subject is too broad and cannot be sustained.
On the other hand the claim of the appellees is equally untenable____ It would defeat the larger part of the intent of the act to hold as we are asked to do that a man was incapable of making a sale of a ten dollar cow even for its full value, and yet capable of disposing of his entire estate by will. Whatever the difference in capacity required between a contract and a will, the latter is an “instrument in writing” and prima facie within the prohibition of the statute, and if made during the existence of a decree, the presumption against its validity can only be overcome by satisfactory evidence of restoration of capacity.

Id., 209 Pa. at 359-60, 58 A. 665. See also, In Re Estate of Hastings, 479 Pa. 122, 387 A.2d 865 (1978); In Re Lanning’s Estate, 414 Pa. 313, 200 A.2d 392 (1964); In Re Mohler’s Estate, 343 Pa. 299, 22 A.2d 680 (1941). Thus, it is clear that the statutory language contained in § 5524 only creates a rebuttal presumption of incapacity. And this is true whether the instrument is a contract, a gift or a will.

Appellants argue that the beneficiary designation cannot be analogized to the cases involving wills since 20 Pa.C.S.A. § 6108 specifically states that “[t]he designation of beneficiaries of life insurance ... shall not be considered testamentary and shall not be subject to any law governing the transfers of property by will.” While the designation must be deemed an inter vivos transaction, see Fiumara v. Fiumara, 285 Pa.Super. 340, 349 n. 6, 427 A.2d 667, 671 n. 6 (1981), appellants’ argument on this aspect misses the point of the previously-cited cases. In Hoffman’s Estate, supra, and In Re Lannings’ Estate, supra, our supreme court decided the effect of an adjudication of incompetency on an incompetent's ability to make a will as an “instrument in writing.” Essentially, the question asked in those cases was whether an incompetency determination conclusively established incapacity. The court found that it did not. In this case, no credible argument can be made that a designation of a beneficiary on a life insurance policy, however characterized, does not fall within the purview of the statute as an “instrument in writing” and therefore also subject to the statute’s interpretation.

Moreover, the lower court correctly equated the requirements for testamentary capacity with that capacity to designate a beneficiary for life insurance benefits. This analysis of the required capacity in no way contravenes the intent of § 6108 and, needless to say, the similarities underlying both instruments are readily apparent.

This result, for the most part, decides the narrow question of law put before us by the appellants. The order adjudicating the deceased as incompetent on August 11, 1954 raised a rebuttable presumption that he was incapable of making a valid beneficiary designation on August 20, 1970. It was not conclusive. The appellee produced the testimony of various witnesses to rebut the presumption and, in the opinion of the lower court, did so successfully. Primarily, the lower court relied on these facts as reiterated by the court en banc:

The testimony at the hearing disclosed that Mr. Bonawitz was discharged permanently from the Harrisburg State Hospital on January 24, 1970. Upon his discharge, he became employed at the Brubaker Tool Corporation and held his' job there, with periodic promotions, until his death. The hospital physician testified he found Mr. Bonawitz to be stable emotionally and mentally. His supervisor stated he was a responsible employee over the ten year period of employment. He had his own permanent residence, his own checking account, paid his own bills and generally was capable of conducting his own affairs. Frances A. Runkle Ofak had befriended Mr. Bonawitz over a long period of time and performed many significant services for him gratuitously. Because of his distrust of his family and the virtual abandonment of him by most members of his family, Mrs. Ofak was a logical object of his bounty. There was no evidence that Mrs. Ofak exerted undue influence or overreaching.

We find that the record does indeed support the lower court’s de facto determination that the deceased possessed sufficient capacity to validly designate a beneficiary on his group life insurance policy.

Order affirmed.

      . 20 Pa.C.S.A. §§ 5501 and 5511.

      . 20 Pa.C.S.A. § 5517.


author: POPOVICH, Judge:

text:
    463 A.2d 1158
    COMMONWEALTH of Pennsylvania v. Sheldon FREEDMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 12, 1983.
    Filed July 29, 1983.
    Petition for Allowance of Appeal Denied Nov. 15, 1983.

      Nino V. Tinari, Philadelphia, for appellant.
    Stephen B. Harris, Assistant District Attorney, Doylestown, for Com., appellee.
    Before HESTER, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Bucks County denying appellant’s, Sheldon Freedman’s, petition to dismiss the charges filed against him at Criminal Information No. 2023 of 1978 on double jeopardy grounds. See Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977) (denial of pre-trial application to dismiss information on double jeopardy grounds is appealable). We affirm.

The complained of testimony was given by the Commonwealth’s first witness, the victim, during the trial by jury on cross-examination by defense counsel and consists of the following:

BY MR. TINARI:
Q The $8,000 that you say that you had—approximately $8,000 that you say you had on that particular day, that wasn’t given to you by Mr. Graff, was it?
A Some of it, yes.
Q How much did he give you?
A $2,100.
Q 'When did he give it to you?
A Approximately two weeks, three weeks before that.
Q Pardon me?
A Two or three weeks before that.
Q When you were asked by the detectives—and they did question you after the incident; isn’t this correct?
A They gave me a lie detector test.
(N.T. 106-107)

After the response by the victim was made concerning the “lie-detector test,” counsel for the defense asked for and was granted a mistrial. Prior to the commencement of the second trial, appellant moved to have the charges lodged against him dismissed on the ground that “it was the prosecutor who ‘keyed’ the Commonwealth witness to make the statement which eventually led to the trial Judge granting the motion for a mistrial.” (See Appellant’s “Memorandum of Law in Support of Petition to Dismiss the Bills of Information” at 3 and Appellant’s Brief at 5) In other words, appellant was urging before the court below that “during the trial the Assistant District Attorney engaged in ‘prosecutorial misconduct’ which led to the mistrial.” (See Appellant’s “Petition to Dismiss the Bills of Information,” Point 3) At a hearing held in open court, which all parties agree occurred on January 16, 1979, the presiding judge denied appellant’s petition to dismiss the Bills of Information. This appeal followed.

Appellant’s counsel steadfastly maintains on appeal, as he did below, “that since the prosecutor instructed the witness to refer to the lie detector test that the standards set forth in [Commonwealth v.] Starks [, 490 Pa. 336, 416 A.2d 498 (1980) ] apply[] and therefore [sic] reprosecution is barred.” (Appellant’s Brief at 5) We are not dissuaded that the prosecution was guilty of any impropriety barring appellant’s retrial.

Our Supreme Court in Starks outlined the criteria applied in evaluating “prosecutorial overreaching”:

The United States Supreme Court has enunciated principally two types of prosecutorial overreaching. First there is the prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable opportunity to convict the defendant. See United States v. Dinitz, [424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976)]. Second there is the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. See Lee v. United States, [432 U.S. 23, 32, 97 S.Ct. 2141, 2147, 52 L.Ed.2d 80 (1977)]; United States v. Dinitz, supra at 611, 96 S.Ct. at 1081-82. In contrast to prosecutorial error, overreaching is not an inevitable part of the trial process and cannot be condoned. It signals the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.

Id., 490 Pa. at 341, 416 A.2d at 500.

. “This Court has interpreted Starks to hold that, ‘prosecutorial misconduct rising to the level of overreaching will bar retrial only if the specified misconduct is attributable to a bad faith effort to prejudice the defendant or an intent to provoke a mistrial.’ ” (Citations omitted) (Emphasis in original) Commonwealth v. Beaver, 317 Pa.Super. 88, 96, 463 A.2d 1097, 1101 (1983).

Instead of going into an extended recitation of the case law dealing with mistrials, we merely wish to note that, aside from the bald allegation by counsel for the defense accusing the assistant district attorney of “keying” the victim-witness to testify on cross-examination to taking a lie-detector test, there is not a scintilla of evidence in the record to indicate that the “specified misconduct is attributable to a bad faith effort to prejudice the defendant or an intent to provoke a mistrial” on the part of the prosecution. See Commonwealth v. Starks, supra. Therefore, absent such record evidence (indicating that the motion for mistrial was the by-product of the prosecution directing the witness to testify so), we • cannot find the prosecution culpable of “goad[ing] the [defendant] into requesting a mistrial[,]” United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. at 1081, 47 L.Ed.2d at 276, so as to bar a second trial. To so find would be premised solely upon speculation and surmise, a practice which is certainly unbecoming an appellate court. See generally Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978); Commonwealth v. Rawlings, 271 Pa.Super. 285, 413 A.2d 408 (1979); Commonwealth v. Mumich, 239 Pa.Super. 209, 361 A.2d 359 (1976).

Although we would discourage either side from venturing into the topic of polygraph examinations with any witness, given their inherent unreliability, see Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), cert. denied, 405 U.S. 1046, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1972); Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983), we will not equate the elicitation of such a response from the victim instantly by defense counsel with prosecutorial overreaching barring a retrial.

Moreover, as correctly observed by the Commonwealth in its brief to this Court, in light of the circumstances attendant to the manner in which the testimony complained of was obtained, “it is difficult to comprehend how the [assistant] district attorney could be deemed to have .‘keyed the witness’; especially since the testimony was elicited by defense counsel. It appears then that it was defense counsel, not the [assistant] district attorney, that provoked the mistrial in the instant matter.” (Commonwealth’s Brief at 6) Thus, based on our review of the applicable case law, we find that the actions of the Commonwealth (or more aptly those actions attributed to the Commonwealth by the defense) come nowhere near the level of prosecutorial misconduct held to bar a retrial. See, e.g., Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981); Commonwealth v. Anderson, 294 Pa.Super. 1, 439 A.2d 720 (1981).

Order affirmed.

      . Appellant was charged with Criminal Conspiracy, Simple Assault, Aggravated Assault, Robbery, Theft by Unlawful Taking and Receiving Stolen Property.

      . We note that in appellant’s petition to the trial court he alleged, aside from the one instance of prosecutorial misconduct, that "the prosecutor engaged in various instances of intentional misconduct!.]’’ However, to date, counsel for appellant has failed to point out these other instances of impropriety to either the trial court or this Court on appeal. Thus, our review is restricted to the single complaint raised by the accused against the prosecution.

      . We will adhere to the standard set forth in Starks in assessing appellant's claim, since his appeal was filed (January 19, 1979) prior to Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) being decided on May 24, 1982, wherein the Court clarified the standard of review to be utilized in mistrial cases from one of "intent" or “bad faith” misconduct to that of "intent" only. See Commonwealth v. Beaver, 317 Pa.Super. 88, 463 A.2d 1097 (1983).


text:
    463 A.2d 1161
    COMMONWEALTH of Pennsylvania v. Lisa RICHARDS, Appellant.
    Superior Court of Pennsylvania.
    Argued April -26, 1983.
    Filed July 29, 1983.

      Carmela R.M. Presogna and Elliot Jay Segel, Assistant Public Defenders, Erie, submitted a brief on behalf of appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed upon appellant, Lisa Richards, after she entered pleas of guilty to charges of aggravated assault and retail theft pursuant to a plea bargain. We reverse and remand for the reasons herein stated.

The charges involved in the instant appeal stem from appellant’s theft of twelve cans of soda pop from a convenience store and her use of a steak knife in stabbing a police officer after the arrest. Appellant entered pleas of guilty and was sentenced to a term of imprisonment of not less than two nor more than four years on the aggravated assault conviction. The court suspended sentence on the retail theft conviction. A petition for reconsideration of sentence was denied, and this appeal followed.

In this appeal, appellant raises the following issues: (1) whether the trial court erred when it failed to articulate adequately the reasons for appellant’s sentence; (2) whether the trial court abused its discretion in imposing an excessive sentence; and (3) whether trial counsel was ineffective in failing to allege in the petition for reconsideration of sentence that the court had failed to state its reasons for the sentence on the record.

Ordinarily, appellant’s failure to assert at sentencing or in her reconsideration petition that the court failed to state on the record its reasons for the sentence would constitute a waiver. See e.g., Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Morris, 273 Pa.Super. 477, 417 A.2d 748 (1979). However, appellant has alleged in her brief on appeal that trial counsel was ineffective for failing to raise the issue in appellant’s reconsideration petition.

Before addressing this particular aspect of appellant’s contention, we note that at the trial and at the reconsideration of sentence stages, appellant was represented by the Public Defender’s Office of Erie County. Additionally, although the designation, “Carmela Presogna, Esquire, 23 West 10th Street, Erie, Pa. 16501,” appearing on appellant’s brief would seem to indicate that appellant is represented by private counsel, the prosecution asserts that appellant is still represented by the Public Defender’s Office. The prosecution states that:

“even though appellate counsel has used the address of her private office on this appeal, she is representing this defendant as a member of the Public Defender’s Office of Erie County, and is alleging the ineffectiveness of a fellow member of her Erie County Public Defender’s Office, that being appellant’s trial counsel, Elliot J. Segal, First Assistant Public Defender.” Brief for the Prosecution at 11.

If what the prosecution alleges is true, then the matter must be remanded for the appointment of independent counsel since we cannot reject a claim of ineffectiveness without allowing appellant the opportunity, if she desires, to select new counsel who is not associated with the public defender’s office. Commonwealth v. Roach, 268 Pa.Super. 340, 341, 408 A.2d 495, 496 (1979). We are remanding for an evidentiary hearing on this matter because this Court is unable to ascertain to any degree of certainty from the evidence in the record whether appellate counsel is associated with the public defender’s office. See Commonwealth v. Rini, 285 Pa.Super. 475, 481, 427 A.2d 1385, 1389 (1981) (“on appellate review, a court may not consider facts outside the record.”)

The prosecution contends that even though appellant is represented by counsel from the public defender’s office, a remand is unnecessary because:

“[although it is the Commonwealth’s position that one public defender should not be allowed to allege or pursue a claim of ineffectiveness against another public defender from the same office because such constitutes an obvious appearance of impropriety, and appellate counsel should have been aware of such, in the case at bar any err [sic] is harmless as to this issue since the claim of ineffective assistance of trial counsel is without arguable merit based on Pennsylvania law and a reading of the record in this case.” Brief for the Prosecution at 12.

We must reject the prosecution’s theory because:

“our Supreme Court held that when appellant raising ineffectiveness of counsel is represented on appeal by that same counsel, we should entertain the claim only if reversible error is apparent on the record; if the claim is not apparent on the face of the record then we must remand for appointment of new counsel not associated with the allegedly ineffective counsel. Commonwealth v. Glasco, 481 Pa. 490, 393 A.2d 11 (1978).” Commonwealth v. Roach, 268 Pa.Super. at 341, 408 A.2d at 496. (Emphasis added).

Accord Commonwealth v. Patrick, 477 Pa. 284, 287, 383 A.2d 935, 936 (1978) (“'it cannot “be assumed that appellate counsel will provide the zealous advocacy to which an appellant is entitled.” ’ ”).

Appellant’s allegation that the sentence imposed was excessive under the circumstances is also waived for failure to raise this claim at sentencing or in a petition for reconsideration of sentence. Commonwealth v. Morris, supra.

Appellant does not argue that his sentence was illegal because it exceeded the statutory limits, an issue which is never waived. See Commonwealth v. Walls, supra. Even if she had, that issue would be without merit since the maximum sentence which appellant could have been sentenced was ten years in prison and a fine of $25,000 on the aggravated assault conviction. See 18 Pa.C.S.A. §§ 1101, 1103, 2702. Appellant received a sentence of not less than two nor more than four years on this conviction. Sentence was suspended on the retail theft conviction.

The matter is remanded for proceedings not inconsistent with this opinion. If appellant is entitled to select independent counsel, appellant should be given an opportunity to raise any claims which have not been waived. In that case, any new appeal must be from the Order of the court thus imposed. Jurisdiction is relinquished.

If, however, appellant is not entitled to independent counsel, the matter should be returned to this Court for prompt disposition. Jurisdiction is to be retained in this instance.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 3921.

      . However, inasmuch as the issue is inseparably linked with the allegation that trial counsel was ineffective for failing to state on the record its reasons for the sentence imposed, "judicial economy is best promoted by dispensing of the two issues in one unified proceeding." See Commonwealth v. Maute, 263 Pa.Super. 220, 224 ftn. 2, 397 A.2d 826, 828 ftn. 2 (1979). Accord Commonwealth v. Abbruzzese, 293 Pa.Super. 246, 250, 438 A.2d 977, 979 (1981). Hence, on remand, the court should address these related issues.

      . Of course, appellant has the option to retain present counsel. However, she first must be informed of the dangers and possible disadvantages of proceeding with an attorney associated with counsel which is alleged ineffective. See Commonwealth v. Quarles, 284 Pa.Super. 473, n. ***, 426 A.2d 145, 146 n. *** (1981).


author: HOFFMAN, Judge:.

text:
    463 A.2d 1163
    Harold NOVOSELLER v. ROYAL GLOBE INSURANCE COMPANIES and General Accident Group. Appeal of ROYAL GLOBE INSURANCE COMPANIES.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1983.
    Filed July 29, 1983.

      George D. Sheehan, Philadelphia, for appellant.
    Benjamin Pomerantz, Philadelphia, for Novoseller, appellee.
    Charles W. Craven, Philadephia, for General Acc., appellee.
    Before CAVANAUGH, ROWLEY and HOFFÉLAN, JJ.
   HOFFMAN, Judge:.

Appellant challenges the stacking or cumulation of insurance policy coverages assessed against it by an arbitration panel. We find that the lower court correctly upheld the panel’s determination and, accordingly, affirm.

On November 1, 1967, Harold Novoseller, while operating one of his employer’s nine taxi cabs, collided with an uninsured vehicle. Both Novoseller’s employer’s insurance policy with Royal Globe Insurance Co., appellant, and Novoseller’s own policy with General Accident Group, appellee, provided the statutorily required $15,000 minimum uninsured motorist coverage. After appellant paid Worker’s Compensation benefits, a panel of arbitrators awarded Novoseller $32,500 in damages, and assessed the full amount of the award against appellant by stacking the coverage of the other cabs. The lower court affirmed the arbitrator’s determination and subsequently denied a motion for reconsideration. The original appeal taken to this court was quashed on November 30, 1981, for failure to enter judgment. Novoseller v. Royal Globe Insurance Co., 293 Pa.Superior Ct. 93, 437 A.2d 1007 (1981). Judgment was entered on December 2, 1981, and this appeal followed.

In a proceeding governed by statutory arbitration, a reviewing court may modify or correct an award, inter alia

where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict.

Arbitration Act of 1927, P.L. 381, No. 248 § 11, 5 P.S. § 171(d). This limitation has been construed so that only mistakesipf law may be corrected after arbitration. State Farm Mutual Automobile Insurance Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978); McDevitt v. McDevitt, 365 Pa. 18, 73 A.2d 394 (1950).

Appellant contends that the arbitration panel, in stacking its coverage of a fleet of cars owned by one insured, made a mistake of law, and requests that the damages be equally apportioned between the two insurance companies. We agree with the lower court that stacking is permissible in Pennsylvania and absent that alleged mistake of law, find no reason to correct or modify the arbitrators’ award.

The uninsured motorist provisions, 40 P.S. § 2000, were designed to protect innocent victims suffering grave injuries because of others’ negligent use of the highways, Harleysville Mutual Casualty Co. v. Blumbling, 429 Pa. 389, 241 A.2d 112 (1968), and are to be liberally construed. Blocker v. Aetna Casualty and Surety Co., 232 Pa.Superior Ct. 111, 332 A.2d 476 (1975). Consequently, insurance companies are required to afford a minimum protection to the owner/operator of a motor vehicle involved in an accident with an uninsured motorist. The Pennsylvania courts have frequently noted that “[t]he legislature has permitted enhancement of that minimum protection, but we believe the statute does not permit a diminution of that protection below the statutory limits.” State Farm Mutual Automobile Insurance Co. v. Williams, supra 481 Pa. at 139-40, 392 A.2d at 285. In light of the required liberal construction and the legislature’s intent, court decisions in this area have evolved to hold that

where a loss exceeds the limits of one policy, the insured may proceed under other available policies up to their individual limits or the amount of the actual loss and that provisions ... limiting that liability, are in derogation of and repugnant to the Uninsured Motorist Act.

Marchese v. Aetna Casualty and Surety Co., 284 Pa.Superior Ct. 579, 582, 426 A.2d 646, 647 (1981). See Sones v. Aetna Casualty and Surety Co., 270 Pa.Superior Ct. 330, 411 A.2d 552 (1979). In Marchese, supra, the court permitted stacking of a “garage policy” covering twenty cars owned by the insured (plaintiff’s employer) that were specified as having dealer plates. The plaintiff was awarded $250,000 by an arbitration panel, well within the maximum $300,000 coverage for the fleet of twenty cars. After emphasizing the affront to the uninsured motorist provision of any limitation on liability, the court concluded that “whether the coverage is in several policies or multiple coverage in one does not seem important in light of the principles relating to limitation provisions which we have referred to.” Marchese v. Aetna Casualty and Surety Co., supra 284 Pa.Super. at 585, 426 A.2d at 649. Similarly in Sones v. Aetna Casualty and Surety Co., supra, this Court maintained that in light of State Farm Mutual Automobile Insurance Co. v. Williams, supra, stacking was permissible because limitations prohibiting the pyramiding of coverage were repugnant to the uninsured motorist provisions. See Harleysville Mutual Casualty Co. v. Blumbling, supra.

Because stacking of uninsured motorist policies is permitted in Pennsylvania, where any exclusion to the contrary would contradict the legislature’s intent, we must affirm the award. Although both insurance companies were available to cover Novoseller’s damages, we cannot say that the arbitrators mistook the law in holding appellant liable for the entire amount.

Accordingly, we affirm the order of the lower court upholding the arbitrators’ award.

Affirmed.

CAVANAUGH and ROWLEY, JJ., concur in the result.

      . Novoseller’s own claim on this appeal, requesting medical and work loss benefits, punitive damages, attorney’s fees and costs, plus interest, has been waived, by his failure to raise it below. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Moreover, Novoseller failed to file an appeal from the lower court’s affirmance of the award as required by Pa.R.A.P. 903(a). Novoseller may not ask this Court, at this late date, to consider a claim never raised and an appeal never taken.

      . Stacking, or the cumulation of insurance coverage, occurs when the total amount of insurance available to cover all motor vehicles on a policy involving more than one vehicle may be available for an accident involving just one of those vehicles. For instance, here, appellant’s insured owned nine cars, each of which was insured for $15,000, for a total insurance coverage of $135,000. The arbitration panel stacked the coverage to award Novoseller $32,500.

      . Neither party contests the amount of damages awarded to Novoseller.

      . The propriety of stacking uninsured motorist coverage has not always been recognized. When the question initially arose, a line of cases disapproved the practice. In Nationwide Mutual Insurance Co. v. Ealy, 221 Pa.Superior Ct. 138, 289 A.2d 113 (1972), the court upheld a contractual agreement between the insurer and the insured, prohibiting cumulative coverage of the insured’s five cars. The Ealy exclusion was also upheld in Adelman v. State Farm Mutual Automobile Insurance Co., 255 Pa.Superior Ct. 116, 386 A.2d 535 (1978) where the court disallowed stacking of a husband and wife’s two policies where “unambiguous contractual language is used to insulate the coverage on one vehicle from that provided by other insured vehicles owned by the insured or his family." Id., 255 Pa.Superior Ct. at 130, 386 A.2d at 542. Unlike those cases, more recent cases have recognized and followed the legislature’s intent by permitting stacking. See State Farm Mutual Automobile Insurance Co. v. Williams, supra; Marchese v. Aetna Casualty and Surety Co., supra; Sones v. Aetna Casualty and

        Surety Co., supra; Blocker v. Aetna Casualty and Surety Co., supra (court permitted stacking because contractual agreement ambiguous).

      . Appellant contends that the award was unfair because the two policies contained provisions purporting to make each excess over the other’s available coverage. Both policies cannot, however, proclaim their secondary nature. The arbitrators properly held appellant primarily liable for benefits up to $135,000.
      Appellant’s argument that it should not be penalized because the insured, as an owner of motor vehicles for hire, was not required to carry uninsured motorist coverage, is meritless. Once choosing to carry the insurance, Novoscller’s employer, and therefore appellant, is obligated to provide all uninsured motorist benefits.

        Finally, appellant’s contention that because it paid Novoseller's Worker’s Compensation benefits, it need not provide uninsured motorist benefits has been waived, not having been raised below. Dilliplaine v. Lehigh Valley Trust Co., supra.


author: HOFFMAN, Judge:

text:
    463 A.2d 1166
    In re ADOPTION OF K.A.B. Appeal of Marion BUTCHER, Natural Mother of K.A.B.
    Superior Court of Pennsylvania.
    Submitted April 27, 1983.
    Filed July 29, 1983.

      James P. O’Connell, Aliquippa, for appellant.
    Steven Kocherzat, Ambridge, for appellee.
    Robert J. Masters, Beaver Falls, for Children & Youth, participating party.
    Robert A. Banks, Ambridge, for father, participating party.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant challenges the burden of proof employed by the lower court in involuntarily terminating her parental rights. Because an improper burden of proof was used, we reverse and remand.

On October 16, 1981, two and one-half years after appellant’s child was voluntarily placed in foster care, the Beaver County Child and Youth Services (CYS) petitioned for involuntary termination of appellant’s parental rights. After a hearing on December 11 and 14, 1981, the Hon. James E. Rowley entered a decree Nisi in favor of CYS. On July 14, 1982, the Hon. John N. Sawyer dismissed appellant’s exceptions and finalized the termination decree. This appeal followed. Appellant alleges that the burden of proof employed at trial was unconstitutional. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), determined that the burden of proof necessary to satisfy due process concerns in involuntary termination of parental rights cases could be no less than “clear and convincing evidence.” Id. at 769, 102 S.Ct. at 1402. Because Santosky was decided in March, 1982, Judge Rowley did not enjoy the benefit of that decision. Therefore, in order to assure appellant of a factfinding procedure employing the constitutionally mandated burden of proof, her challenge to the involuntary termination of her parental rights must be heard. See In re; Adoption of M.E.T., 313 Pa.Superior Ct. 316, 459 A.2d 1247 (1983).

Accordingly, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

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

      . After entering the decree Nisi, but before appellant’s exceptions were heard, Judge Rowley was elected to this court, thus necessitating another Common Pleas Court Judge’s review of appellant’s exceptions.

      . Judge Sawyer’s evaluation of the evidence using a "clear and convincing” standard does not suffice to protect appellant’s due process rights. In Santosky, the Court maintained that, ”[t]he standard of proof ‘instructs] the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions’ he draws from that information." 455 U.S. 745, 757, n. 9, 102 S.Ct. 1388, 1396 n. 9, 71 L.Ed.2d 599 (emphasis added), quoting In re: Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1075-1076, 25 L.Ed.2d 368 (1970) (HARLAN, J. concurring). See also id. 455 U.S. at 769, 402 S.Ct. at 1042 ("termination proceedings often require the factfinder to evaluate medical and psychiatric testimony, and to decide issues difficult to prove to a level of absolute certainty, such as lack of parental motive, absence of affection between parent and child and failure of parental foresight and progress”). Thus, the trial judge, rather than one who reviews a cold record, must apply the "clear and convincing” standard.

      . Because of our disposition of this case, we need not address appellant’s remaining contentions.


author: VAN der VOORT, Judge:

text:
    463 A.2d 1167
    COMMONWEALTH of Pennsylvania v. Marvin MATHIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1980.
    Filed July 29, 1983.

      John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This case has a fairly long history. Appellant, tried along with three others before a jury, was convicted on November 22, 1976 of theft and criminal conspiracy; he was acquitted of burglary. Following denial of post-trial motions, appellant was sentenced by Judge McDermott to maximum terms of imprisonment, 2lí¿ to 5 years on both the theft and the conspiracy convictions, sentences to run consecutively. Appellant filed an appeal to our Court, at No. 1283 October Term, 1977, which was argued before the whole court. Commonwealth v. Mathis, 269 Pa.Superior Ct. 61, 409 A.2d 63 (1979).

Judge Price, writing for the majority, dismissed appellant’s allegations of trial error as being without merit. Nevertheless, he sustained a final contention that “the court below committed error by imposing the maximum prison sentence solely on the basis of the criminal act without any consideration of appellant’s character or any inquiry into possible mitigating circumstances.” The case was remanded to the lower court for resentencing. Judge Price’s opinion cites Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), as well as Pennsylvania R.Crim.P. 1403(A)(2).

On November 13, 1979, Judge McDermott held a sentencing hearing after which he reimposed sentences of 2lk to 5 years in each case, to run consecutively, as he had before. From the new sentence, appellant has again appealed, raising three contentions.

The third contention is that the trial judge committed certain trial errors. Any such alleged errors have either been resolved against appellant in his first appeal before this court, or have been waived by his failure to present them in his first appeal. See Commonwealth v. McCabe, 242 Pa.Superior Ct. 413, 364 A.2d 338 (1976). Appellant’s remaining contentions pertain to the sentences imposed.' He first argues that the court erred in sentencing on the charge of theft as if it were a first degree misdemeanor; appellate counsel argues that the Commonwealth failed to prove the value of the goods taken. Although Mathis failed to raise this issue in his first appeal, we may nonetheless consider it at this time because illegality of sentence is not a waivable issue. Commonwealth v. Welch, 291 Pa.Superior Ct. 1, 435 A.2d 189 (1981); Commonwealth v. Fral, 248 Pa.Superior Ct. 560, 375 A.2d 383 (1977), rev’d on other grounds, 483 Pa. 602, 397 A.2d 1186 (1979).

The Commonwealth, as well as the appellant, calls our attention to the disposition of the co-defendants’ separate appeals. In both Commonwealth v. Howzell, 257 Pa.Superior Ct. 607, 390 A.2d 292 (1978) (allocatur denied 3/22/79); and Commonwealth v. Wilson, 257 Pa.Superior Ct. 621, 390 A.2d 300 (1978), the judgments of sentences were affirmed by per curiam order (memorandum opinions were not filed). Similarly, in Commonwealth v. White, 272 Pa.Superior Ct. 620, 422 A.2d 698 (1979) (allocatur denied 1/3/80), this court affirmed per curiam (memorandum opinion relying as to this issue, on Howzell and Wilson).

In Howzell, the claim was that the prosecution had failed to present evidence of value; and such determination of value was for the jury. Wilson, alleged that a stipulation as to value was improper and, but for such, the crime arose no higher than a third degree misdemeanor. Defendant White argued that the Commonwealth failed to show value in excess of $200 and to allow it to reopen its case to do so was improper. Therefore, he contended that it was improper to impose a sentence for a second degree misdemeanor of m to 5 years.

To fully appreciate the perplexing situation that we are currently faced with, we must review various sections of the Crimes Code, 18 Pa.C.S. § 101 et seq. and follow the procession of this case, as well as those of the co-defendants, through the courts.

The grading of theft offenses is set forth in 18 Pa.C.S. § 3903 as follows.

(a) Felony of the third degree.—Theft constitutes a felony of the third degree if the amount involved exceeds $2,000, or if the property stolen is a firearm, automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property.
(b) Other grades. Theft not within subsection (a) of this section, constitutes a misdemeanor of the first degree, except that if the property was not taken from the person or by threat, or in breach of fiduciary obligation, and:
(1) the amount involved was fifty dollars ($50) or more but less than two hundred dollars ($200) the offense constitutes a misdemeanor of the second degree; or
(2) the amount involved was less than fifty dollars ($50) the offense constitutes a misdemeanor of the third degree.
As amended 1974, June 17, P.L. 356, No. 118 § 1. The Crimes Code provides at 18 Pa.C.S. § 1104:
A person who has been convicted of a misdemeanor may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall be not more than:
(1) Five years in the case of a misdemeanor of the first degree.
(2) Two years in the case of a misdemeanor of the second degree.
(3) One year in the case of a misdemeanor of the third degree.
1972, Dec. 6, P.L. 1482^ No. 344, § 1, eff. June 6, 1973. and at 18 Pa.C.S. § 1103:
A person who has been convicted of a felony may be sentenced to imprisonment as follows:
(1) In the case of a felony of the first degree, for a term which shall be fixed by the court at not more than 20 years.
(2) In the case of a felony of the second degree, for a term which shall be fixed by the court at not more than ten years.
(3) In the case of a felony of the third degree, for a term which shall be fixed by the court at not more than seven years.
1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973.

The present case is unusual. After the Commonwealth rested its case; appellant and his co-defendants demurred arguing that the Commonwealth had failed to establish the value of the items. The defendants argued that a demurrer should be sustained as to any charge of theft rising higher than a misdemeanor of the third degree. The court indicated that it would permit the prosecution to reopen its case, at which time defense counsels voiced their objections. Defense counsels stipulated preserving their objection, that the victim would testify that the items were worth more than fifty dollars. (N.T. Trial Vol. 3, pp. 70-72). At the initial sentencing appellant was sentenced for theft, a misdemeanor of the first degree, counsel objected; the court advised appellant to raise the issue in a petition for reconsideration. In a hearing on the petition for reconsideration the court permitted the Commonwealth over objection' to introduce testimony that the items stolen had a value of $2700. The court reimposed its original sentence.

All parties appear to agree that valuation does not go to the guilt or innocence of a theft defendant, but must be established for sentencing purposes. Otherwise, the value shall be deemed to be less than fifty dollars. Commonwealth v. Stauffer, 239 Pa.Superior Ct. 463, 361 A.2d 383 (1976); Commonwealth v. Seymour, 237 Pa.Superior Ct. 17, 346 A.2d 569 (1975); Commonwealth v. McKennion, 235 Pa.Superior Ct. 160, 340 A.2d 889 (1975).

To resolve this appeal, this court must answer two questions. First, may a trial judge permit the Commonwealth to reopen its case after a defendant has demurred to the prosecution’s failure to show value. Second, if we should answer the prior question in the affirmative, is the Commonwealth, after stipulating to a value, estopped from later proving value greater than that which is stipulated to. In the circumstances of this case the power of the trial court to allow the Commonwealth to reopen its case is inextricably interwoven with the stipulation. The court’s advisement that it would allow the prosecution to reopen its case precipitated the stipulation. This court was faced with various aspects of this situation in the previous appeals taken by the co-defendants, however, no statement was provided demonstrating this court’s reasoning. We decide to provide such here.

“It is within the discretion of the trial judge to permit either side to reopen its case to present additional evidence. Commonwealth v. Deitch Co., 449 Pa. 88, 100-01, 295 A.2d 834 (1972). The trial court has the discretion to reopen a case prior to submission to a jury to prevent a failure or a miscarriage of justice. Commonwealth v. Burton, 164 Pa.Superior Ct. 158, 63 A.2d 508 (1949).” Commonwealth v. Ridgely, 243 Pa.Superior Ct. 397, 365 A.2d 1283 (1976). In Burton, the trial court permitted the Commonwealth to reopen its case after the defense had interposed a demurrer. After hearing the additional testimony the court overruled the demurrer. This court found the matter was within the discretion of the court. In Ridgely, the defense moved to strike the testimony of the main prosecution witness, when she failed to appear for cross-examination. The court granted the motion to strike and determined the defendant was not guilty on the first count. Prior to the court’s rendering its verdict on a second count, the absent witness appeared in court and the Commonwealth was permitted to reopen its case as to the second count. This court found such reopening was within the discretion of the court.

We find in the present case, that the lower court did not abuse its discretion in advising appellant and his co-defendants that the court would allow the prosecution to reopen its case to show value.

As to the stipulation, “[i]t is axiomatic that parties may bind themselves by stipulations so long as they do not affect the jurisdiction of the court, and provided that the stipulations are not in contravention of peremptory statutory requirements.” Marmara v. Rawle, 264 Pa.Superior Ct. 229, 235, 399 A.2d 750, 754 (1979). Stipulations have also been accepted in the context of criminal proceedings. See Commonwealth v. Tate, 487 Pa. 556, 410 A.2d 751 (1980); accord, Commonwealth v. Evans, 465 Pa. 12, 348 A.2d 92 (1975). Tate is of special interest to this appeal, as the Commonwealth there certified that the case rose no higher than second degree murder. While Tate did not deal directly with the current issue, the Supreme Court did implicitly acknowledge that the Commonwealth could by stipulation, limit offenses to a certain degree.

In this case, the Commonwealth with the participation of the trial court, accepted the defense stipulation that the value was in excess of $50. Such was binding upon the parties and the court. This holding is consistent with the affirmances in Howzell, White, and Wilson, supra. However, we are required to go a step further. By so accepting the stipulation, both the trial court and the prosecution tacitly agreed that the theft did not rise beyond a second degree misdemeanor, carrying a maximum jail term of two years. 18 Pa.C.S. §§ 1104(2), 3903(b)(1). Appellant was sentenced to maximum terms of five years as if convicted of theft of property exceeding $200 in value. 18 Pa.C.S. §§ 1104(1), 3903(b). This discrepancy was not brought to this court’s attention in the appeals of Howzell and Wilson.

Co-defendant White’s sentencing claim was resolved on the basis of Howzell and Wilson. Yet, White did .allege, though not very articulately (see footnote 3, supra), a sentencing claim analogous to the one at hand. However, such claim was not considered by this court, possibly due to its mis-statement, as White’s conviction was affirmed based on Howzell and White, which were not concerned with the current specific claim. Hence, we find the prior appeals do not control the result here.

Therefore, we must agree with appellant that he was improperly sentenced to a term of two and one half (272) to five (5) years on the theft count.

Under 18 Pa.C.S. § 905, criminal conspiracy is at the same degree of offense as the object of the conspiracy. Commonwealth v. Marshall, 254 Pa.Superior Ct. 275, 385 A.2d 1017 (1978). In this current appeal, conspiracy also may not rise above a second degree misdemeanor, punishable by a term of imprisonment no greater than two years.

Since the appellant here has already served more than the four years (two consecutive terms of two years) maximum authorized by the Crimes Code, we vacate those parts of the sentences at Nos. 964 and 965 September Sessions 1976 which exceed two years consecutively at each said term and Number and the appellant is discharged from said sentences at said 964 and 965 September Sessions 1976.

      . As of the time of the hearing appellant had already served three (3) years and two (2) months of the total sentence of five (5) to ten (10) years.

      . The items taken comprised practically the entire contents of the apartment, including among other items, a mink jacket, two television sets, a stereo set and clothing.

      . White mistakenly linked the punishment for a first degree misdemeanor to a second degree misdemeanor. Value in excess of $200 would support first degree misdemeanor. See discussion within.

      . The stipulation did not set any upper limit to the value' of the property taken.

      . 18 Pa.C.S. § 3903(c)(3):
      When the value of property cannot be satisfactorily ascertained pursuant to the standards set forth in paragraphs (1) and (2) of subsection (c) its value shall be deemed to be an amount less than fifty dollars ($50). Amounts involved in thefts committed to one scheme or course of conduct, whether from the same person or several parsons, may be aggregated in determining the grade of the offense.
      As amended 1974, June 17, P.L. 356, No. 118, § 1, imd. effective.

      . § 905. Grading of criminal attempt, solicitation and conspiracy
      (a) Grading.—Except as otherwise provided in this section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit murder or a felony of the first degree is a felony of the second degree.
      As amended 1974, March 26, P.L. 213, No. 46, § 1, imd. effective.

      . We have been advised by appellate counsel that appellant was paroled in January 1982. As appellant is still suffering the consequences of this improper sentence, we do not find that this appeal is moot. His claim that the sentence imposed at resentencing was unreasonable and excessive is moot due to our resolution here.

      . We must remind the bar that unpublished opinions of this court may not be cited as precedent. See NOTICE TO THE BAR, 281 Pa.Superior Ct. 627 (1980). We have found it necessary to refer to the co-defendants’ per curiam affirmances in order to avoid appearing to be in conflict with our prior holdings. See Commonwealth v. Barnes, 307 Pa.Superior Ct. 143, 452 A.2d 1355 (1982).


author: LIPEZ, Judge: WIEAND, Judge,

text:
    463 A.2d 1172
    COMMONWEALTH of Pennsylvania v. Frederick MILLINGS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 23, 1981.
    Filed July 29, 1983.

      Penn B. Glazier, Lancaster, for appellant.
    Michael E. Bortner, Assistant District Attorney, York, submitted a brief on behalf of Commonwealth, appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.

       PRICE, J., did not participate in the decision of this case.

   LIPEZ, Judge:

Defendant Frederick Millings appeals from his conviction in a non-jury trial of possession of a controlled substance, 35 P.S. § 780-113(a)(30). He argues that drugs found on his person in a search incident to his arrest should have been suppressed because the arrest was made pursuant to an arrest warrant which had been withdrawn following defendant’s voluntary appearance and entry of bail, notwithstanding the fact that the arresting officer acted in good faith and without knowledge of the withdrawal. We agree and grant defendant a new trial.

Defendant, who was residing in Maryland, learned that a warrant had been issued in York County, Pennsylvania, for his arrest on charges of retail theft, 18 Pa.C.S. § 3929, and that extradition proceedings were pending. Rather than await extradition, he surrendered himself to York County authorities on May 24, 1978, and appeared at a hearing in the Court of Common Pleas the following day, where he entered a plea of not guilty to the retail theft charges. His case was remanded for trial in the July term of court, and the court directed that the active process be withdrawn and defendant be released on nominal bail.

Several days later, a York County detective who had been involved in the proceedings to extradite Millings on the retail theft charges saw defendant outside a bar. Unaware of defendant’s surrender and subsequent release on bail, the detective attempted to ascertain whether the warrant for his arrest was still active by checking the files in the York County Courthouse and the process drawer in the sheriff’s office. Both of these sources indicated that the warrant was still an active process.

Concluding that the warrant was still active, the detective returned to the bar and continued surveillance of Millings for two hours, then called York city police for assistance. As the detective and three police officers approached the car in which defendant and several other people were seated, the occupants of the car, including defendant, scattered and began to run. Millings was pursued, apprehended and placed under arrest for retail theft pursuant to the arrest warrant. Although he attempted to explain the circumstances of his previous surrender and release on bail, defendant was transported to the police station and searched prior to his detention there. This search revealed the contraband (hashish and heroin) which led to the filing of an information against him for possession of controlled substances. Defendant’s motion to suppress the drugs as fruits of an unauthorized arrest was denied, as was his post trial motion for a new trial on the basis that the evidence should have been suppressed, and he was sentenced to six to twelve months’ imprisonment and payment of the costs of prosecution.

In denying defendant’s motion to suppress, the lower court reasoned that:

While we agree with the defendant that there was no authority to arrest the defendant, we do not see this as the ultimate question ...; rather, the question before the court is whether or not ... the officer had probable cause to make the arrest.

Slip op., 11/27/78, at 4. Similarly, in denying reconsideration of that motion, the court stated that:

The only question was whether or not the officer, at the time of the arrest, had probable cause to believe that the defendant was indeed a fugitive with an outstanding process for his arrest.

Slip op., 8/29/79, at 2. In both reviews of the motion to suppress, the court concluded that the detective’s attempt to confirm the viability of the warrant and good faith belief that the warrant was active satisfied the requirements of probable cause as set forth in Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971).

We find this line of reasoning, based on a misinterpretation of Hill v. California, supra, to be erroneous. In Hill, the Supreme Court held that where a police officer, who had within his personal knowledge facts sufficient to justify a warrantless arrest of a suspect, mistakenly arrested another individual who fit the suspect's description and was found in the suspect’s apartment, the mistake in identities, reasonable under the circumstances and made in good faith, did not defeat the officer's probable cause to make the arrest. The court thus found that the search conducted incident to that arrest was valid and that evidence it disclosed could be admitted at trial. Here, however, the arresting officers possessed no personal knowledge as to the facts establishing probable cause for the defendant’s arrest for retail theft. Rather, their arrest was based solely on the purported authority of the arrest warrant. That warrant, having previously been withdrawn, no longer had any validity. Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1951) (“It has been said that a warrant once executed is exhausted.”) Hill does not stand for the proposition that a good faith mistake as to the validity of an arrest warrant can be overlooked in determining the legality of an arrest based on that warrant. Indeed, that proposition was negated by the Court in Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), decided in the same term. There, the Court held that good faith reliance, however reasonable, on an arrest warrant cannot insulate an illegal arrest from challenge when that warrant proves to be invalid. Id. at 568, 91 S.Ct. at 1037. See also Commonwealth v. Flowers, 245 Pa.Super.Ct. 198, 369 A.2d 362 (1976). We find no support in logic or precedent for the Commonwealth’s assertion that because the warrant, when viable, had been supported by probable cause, it can serve as authority for an arrest after its withdrawal.

Since the arrest warrant provided no authority for defendant’s arrest and since the arresting officers admitted that they had no independent knowledge of facts constituting probable cause to arrest him on either retail theft or drug charges, we hold that the arrest was illegal. Accordingly, the contraband, seized in a search incident to and resulting from that arrest, should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Judgment of sentence vacated and case remanded for a new trial. Jurisdiction is relinquished.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I agree that the present state of the law, as ably reviewed in the opinion of Judge Lipez, requires suppression of the fruits of an arrest based on a warrant previously withdrawn by the court even though the arresting officer reasonably and in good faith believed the warrant to be viable at the time he made the arrest. As a member of an intermediate appellate court I must decline the invitation to join the Court of Appeals for the Fifth Circuit which has recognized “technical violation” and “good faith mistake” exceptions to the exclusionary rule. See: United States v. Williams, 622 F.2d 830 (5th Cir.1980), cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114, citing Ball, Good Faith and the Fourth Amendment: The “Reasonable” Exception to the Exclusionary Rule, 69 J.Crim.L. & Criminology 635 (1978). See also: Pesci v. State, 420 So.2d 380 (Fla.Dist.Ct.App. 1982). I cannot help but observe, however, that such an exception to the exclusionary rule would certainly make it unnecessary to suppress the' contraband seized in the instant case.

      . The lower court relied on the following language in the Hill opinion: [S]ubjective good-faith belief would not in itself justify either the arrest or in the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officer's mistake was understandable and the arrest a reasonable response to the situation facing them at the time.

        Id. 401 U.S. at 804, 91 S.Ct. at 1110-11.

      . See also McDonald v. State, 569 P.2d 1014 (Okl.Cr.App.1977), where the Court of Criminal appeals of Oklahoma relied on Carlson in suppressing evidence seized during an arrest. In that case police went to appellant’s home to arrest him on what they believed to be an outstanding warrant for grand larceny, also suspecting that appellant was implicated in a second armed robbery for which no warrant had been issued. It was during the search incident to arrest that the police discovered and seized evidence which led to appellant’s conviction for this second robbery. However, the warrant pursuant to which the police made the arrest had already been returned and the appellant arrested and arraigned on the charge. The court held that since the grand larceny warrant was exhausted, the officers had no authority to make an arrest, thus invalidating any search incident to arrest. Consequently, the seized materials were ordered suppressed. Id. at 1017.


author: LIPEZ, Judge:

text:
    463 A.2d 1175
    COMMONWEALTH of Pennsylvania v. Vicki M. SCHMIDT, Appellant.
    Superior Court of Pennsylvania.
    Argued June 23, 1982.
    Filed July 29, 1983.
    Petition for Allowance of Appeal Denied Nov. 17, 1983.

      Norris E. Gelman, Philadelphia, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   LIPEZ, Judge:

In a jury trial, defendant was convicted of two counts of murder in the third degree. This appeal is from the judgment of sentence imposed after denial of defendant’s post-verdict motions. Because we agree with defendant that the court below erred in permitting the prosecutor to elicit defendant’s prior criminal record from the defendant herself on cross-examination, we reverse and grant a new trial.

In cross-examining the defendant, the prosecutor elicited the fact that she had pled guilty to retail theft in 1976. The trial judge permitted this line of questioning over defense counsel’s strenuous and repeated objections. The Commonwealth concedes, as it must, that this questioning of defendant concerning a prior guilty plea violated the Act of March 15, 1911, P.L. 20, 19 P.S. § 711, repealed and substantially reenacted as 42 Pa.C.S. § 5918, effective June 27, 1978. The Commonwealth relies solely on an argument that the error was harmless beyond a reasonable doubt. We must reject this argument, since our Supreme Court has unanimously held that a violation of 19 P.S. § 711 cannot be harmless “even if the evidence of guilt is ‘overwhelming.’ ” Commonwealth v. Barron, 438 Pa. 259, 261, 264 A.2d 710, 712 (1970).

Judgment of sentence reversed, and a new trial ordered.

McEWEN, J., concurs in the result.

      . Because of our disposition we need not consider defendant's claims that the trial judge erred in: (1) invading the province of the jury in the rendering of the verdicts, which as a result were not truly unanimous; (2) excluding testimony concerning statements made by the chief Commonwealth witness while she was a state hospital patient; (3) refusing to allow the defense psychiatrist to testify; and (4) refusing to permit cross-examination of the chief Commonwealth witness concerning her statements to hospital personnel. Defendant also claims that retrial would constitute double jeopardy, but this claim is clearly premature, and can be raised if and when the Commonwealth attempts to retry defendant.

      . "Hereinafter, any person charged with any crime, and called as a witness in his own behalf, shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense, other than the one wherewith he shall then be charged, ... unless
      (1) He shall have at trial, personally or by his advocate, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or
      (2) He shall have testified at such trial against a codefendant, charged with the same offense. 1911, March 15, P.L. 20, Section 1.” 19 P.S. § 711.

      . “No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation unless:
      (1) he shall have at such trial, personally or by counsel, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or,
      (2) he shall have testified at such trial against a codefendant, charged with the same offense.
      1976 July, 9, P.L. 586, No. 142, § 2, eff. June 27, 1978, 42 Pa.Stat.Ann. § 5918.”
      42 Pa.C.S. § 5918.


author: PER CURIAM:

text:
    463 A.2d 1176
    Donald KEELER v. INTERNATIONAL HARVESTER USED TRUCK CENTER, Harold B. Terry, Individually and t/d/b/a Terry Truck Center and James W. Eck. Appeal of James W. ECK.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1982.
    Filed July 29, 1983.

      Emerson E. Yaw, Williamsport, for appellant.
    Joseph Musto, Wilkes-Barre, for appellee.
    Before ROWLEY, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

' This appeal arises out of an action for breach of express and implied warranties brought by Appellee Keeler against International Harvester Used Truck Center, Harold B. Terry and Appellant James W. Eck.

The action concerned a used 1975 Kenworth truck tractor which appellee had purchased from Terry in September of 1979. Terry had purchased the truck, for resale, from International Harvester in June of 1979. Appellant Eck advanced the money to Terry for the purchase of the truck. Title was placed in appellant’s name. Terry and appellant agreed to split the profits from the resale. The possibility of a loss was not, discussed. It was undisputed, however, that appellant was to be repaid the entire amount that he had advanced to Terry. Appellee claimed that the relationship between Terry’ and appellant constituted a joint venture with respect to the sale of the truck. If appellee is correct, appellant would be jointly liable with Terry for any breach of warranty. Appellant, on the other hand, maintained that his relationship with Terry was merely that of creditor and debtor.

At the conclusion of the trial, the court ruled, sua sponte, that the relationship between Terry and appellant was, as a matter of law, a joint venture and instructed the jury that if Terry was liable then appellant was also liable. In essence the court directed a verdict against Eck on the crucial issue of whether a joint venture existed. The jury returned a verdict for appellee against Terry and appellant in the amount of $52,102.00. No liability was found on the part of International Harvester. Post-trial motions were filed and denied. Terry did not appeal. This appeal by Eck is from the trial court’s order entering judgment on the verdict.

The sole issue raised on appeal is whether the court erred in ruling that a joint venture existed as a matter of law. We agree with appellant that the question of whether a joint venture existed in this case should have been submitted to the jury. What constitutes a joint venture is a question of law; but whether a joint venture exists is generally a question of fact. 46 Am.Jur.2d Joint Ventures § 7.

To constitute a joint venture, certain factors are essential:

1) Each party to the venture must make a contribution, not necessarily of capital, but by way of services, skill, knowledge, materials or money;
2) Profits must be shared among the parties;
3) There must be a joint proprietary interest and a right of mutual control over the subject matter of the enterprise;
4) Usually, there is a. single business transaction rather than a general and continuous transaction.

McRoberts v. Phelps, 391 Pa. 591, 138 A.2d 439 (1958).

The trial court is correct in pointing out that evidence of all the above-mentioned factors was introduced at trial. However, this merely means that the jury could find that a joint venture existed. It does not mean, however, that they must make such a finding.

The existence of a joint venture depends on the facts and circumstances of each particular case. Id., 391 Pa. at 600, 138 A.2d at 444. It’s existence or non-existence de.pends upon what the parties intended in associating together. Id., 391 Pa. at 598, 138 A.2d at 443.

In this case, what the parties intended when entering into their oral agreement was in dispute. This was an issue of fact and therefore was for the jury to resolve. Martin v. Soblotny, 296 Pa.Super. 145, 442 A.2d 700 (1982). There was sufficient evidence from which the jury could have inferred that the parties intended a joint venture with respect to the sale of the truck. On the other hand, there was testimony which would have supported a finding that no joint venture existed and that the relationship was merely that of debtor and creditor. When the trial court is presented with a choice between two reasonable inferences, the case must be submitted to the jury. Lavely v. Wolota, 253 Pa.Super. 196, 384 A.2d 1298 (1978). When deciding whether or not to direct a verdict against a party, the trial court is required to view the evidence in the light most favorable to the party against whom the verdict is directed. The court must accept as true all evidence and proper inferences therefrom which tend to support the contention of the party against whom the ruling is made. All contrary evidence and inferences must be disregarded. Correll v. Werner, 293 Pa.Super. 88, 437 A.2d 1004 (1981). Viewed in this light, the record in this case does not support the trial court’s ruling.

Order reversed and case remanded for a new trial.