text:
    518 A.2d 1291
    MERCEDE CENTER, INC. v. EQUIBANK, David F. Cook and Caribank. Appeal of MERCEDE CENTER, INC. and Caribank.
    Superior Court of Pennsylvania.
    Argued May 1, 1986.
    Filed Dec. 18, 1986.

      James A. Ashton, Pittsburgh, for appellants.
    John R. O’Keefe, Jr., Pittsburgh, appellees.
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.
   DEL SOLE, Judge:

Mercede Center Inc. (Mercede), a Florida corporation engaged in real estate development, sought a construction and permanent mortgage loan from Equibank in the amount of $12,500,000. Equibank issued a commitment letter subject to numerous terms and conditions including a request for various items of collateral security. One item of security to be an unconditional, irrevocable letter of credit issued by a financial institution naming Equibank as beneficiary in the amount of $1,000,000. Mercede obtained a letter of credit from Caribank which was delivered to Equibank when the construction loan agreement was closed. The agreement provided inter alia that upon the occurrence of specified events of default and after notice and opportunity to cure, Equibank could declare Mercede to be in default and exercise remedies including but not limited to an immediate draw under the letter of credit.

Equibank subsequently declared Mercede to be in default. Thereafter, Mercede initiated an action requesting: a) Equi-bank and Caribank be temporarily enjoined from drawing down or accepting any draft on the letter of credit, b) the court declare null and void any attempted default unreasonably created by Equibank and c) that the court enjoin Equibank to keep its mortgage loan agreement. In addition, Mercede filed a petition for a rule to show cause why a preliminary injunction should not issue. After several continuances of the date for hearing on the petition, the court entered an order stating that upon motion of Mercede, the motion for preliminary injunction was withdrawn. Thereafter, Equibank sought to draw on the letter of credit resulting in Equibank’s filing a cross-claim against Cari-bank for wrongful dishonor of its draft. Caribank, in response, filed a petition for interpleader. The trial court opinion in the case sub judice indicates that no disposition has been made of the interpleader petition but by order of court, $919,485.02 was deposited by Caribank with the Pro-thonotary of Allegheny County to be placed in an escrow account. Equibank then filed a Motion for Summary Judgment against Caribank on its cross-claim for wrongful dishonor and on May 8, 1985 the court entered an order granting Equibank’s Motion and further ordered the Pro-thonotary to pay the funds held in escrow to Equibank in satisfaction of the judgment. The joint Motion of Mercede and Caribank to reconsider the entry of Summary Judgment and vacate the order was denied and an appeal from the May 8, 1985 order was filed by Mercede and Caribank.

Thereafter, on July 9, 1985, the trial court granted the petition of Equibank for leave to amend its answer and reply to new matter in the nature of a cross-claim and new matter in the nature of a cross-claim and counterclaim. The amended pleadings asserted inter alia claims for wrongful dishonor by Caribank of subsequent drafts on the letter of credit on February 25, 1985, April 2, 1985 and May 20, 1985 totaling $67,755.27. Caribank filed its answer which was followed by Equibank filing a Motion for Summary Judgment on the amended pleadings. The Motion asserted Equibank was entitled to judgment against Caribank for wrongful dishonor of the subsequent drafts as a matter of law based on the May 8, 1985 Order of Court. The trial court on February 19, 1986 entered an Order granting the Motion and a notice of appeal was subsequently filed on March 18, 1986.

We have consolidated for disposition the appeals of Mer-cede and Caribank from the two Orders of the Court of Common Pleas of Allegheny County granting Equibank’s Motions for Summary Judgment.

In the pleadings and affidavits Mercede and Caribank have contended “that the credit contract between Equibank and Caribank was expressly conditional upon Equibank’s good faith performance of its obligations under the loan agreement, and that the credit could only be drawn on in the event of a default by Mercede Center after completion of the construction phase of the project by reason of rents being insufficient to meet permanent mortgage payments.” (Trial Court Opinion at 4 in support of the May 8, 1985 Order). Because Equibank has attempted to draw on the letter of credit prior to completion of the construction phase, Mercede and Caribank have raised the issue of Equibank’s alleged fraud in the inducement. Whether the letter of credit was fraudulently procured is said to raise an issue of fact, and therefore, the court is said to have erred in granting Equibank’s Motion for Summary Judgment.

Pa.R.C.P. 1035(b) provides that summary judgment may be entered: ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law’. In considering a motion for summary judgment the court must view the evidence in the light most favorable to the non-moving party and enter judgment only if the case is clear and free from doubt.

Lucera v. Johns-Manville Corp., 354 Pa.Super. 520, 528, 512 A.2d 661, 665 (1986).

The letter of credit in this matter reads as follows: [b]y order of Mercede Center, Inc. of Plantation, Florida, and for account of the same, we hereby establish our Irrevocable Letter of Credit and authorize you to draw on us up to One Million Dollars ($1,000,000.00), available by your draft at sight.
This credit has been established in your favor to support your combination construction and permanent mortgage loan to Mercede Center, Inc. Your draft must be drawn and negotiated no later than July 27, 1986 and must bear our Letter of Credit # 307 and date.
We hereby agree with the drawers, endorsers, and bona fide holders of all drafts drawn under and in compliance with the terms of this credit, that such drafts will be duly honored upon presentation to the drawee.
This credit is subject to the “Uniform Customs and Practices for Documentary Credits” (1974 Revision), International Chamber of Commerce Brochure No. 290.
Our Supreme Court has stated that:
[t]he great utility of letters of credit flows from the independence of the issuer-bank’s engagement from the underlying contract between beneficiary and customer. Long-standing case law has established that, unless otherwise agreed, the issuer deals only in documents. If the documents presented conform to the requirements of the credit, the issuer may and must honor demands for payment, regardless of whether the goods conform to the underlying contract between beneficiary and customer. Absent its agreement to the contrary, the issuer is, under the general rule, not required or even permitted to go behind the documents to determine if the beneficiary has performed in conformity with the underlying contract.

Intraworld Industries Inc. v. Girard Trust Bank, 461 Pa. 343, 357, 336 A.2d 316, 323 (1975). The Court in Intraworld has stated the general rule which is codified at 13 Pa.C.S.A. § 5114(a) as follows:

[a]n issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for the sale or other contract between the customer and the beneficiary. The issuer is not excused from honor of such a draft or demand by reason of an additional term that all documents must be satisfactory to the issuer, but an issuer may require that specified documents must be satisfactory to it.

13 Pa.C.S.A. § 5114(b) implicates the exceptions to the general rule set forth in Intraworld.

(b) Nonconforming document or fraud. Unless otherwise agreed when documents appear on their face to comply with the terms of a credit but a required document does not in fact conform to the warranties made on negotiation or transfer of a document of title (section 7507) or of a security (section 8306) or is forged or fraudulent or there is fraud in the transaction:
(1) the issuer must honor the draft or demand for payment if honor is demanded by a negotiating bank or other holder of the draft or demand which has taken the draft or demand under the credit and under circumstances which would make it a holder in due course (section 3302) and in an appropriate case would make it a person to whom a document of title has been duly negotiated (section 7502) or a bona fide purchaser of a security (section 8302); and
(2) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor.

13 Pa.C.S.A. § 5114(b).

Professors White and Summers have observed:

[i]t might be thought that a beneficiary’s action for wrongful dishonor can always be decided on the pleadings on motion for summary judgment, or the like, for the question is whether the issuer wrongfully dishonored, and the terms of the credit and all documents presented by the beneficiary will be before the court. Often this will be true. But sometimes it will not be, for genuine issues of fact may arise with respect to waiver, estoppel, cure, and the like. Also, ... trial may be required when the issuer sets up forgery or fraud defenses under 5-114(2).

White & Summers, Uniform Commercial Code § 18-6 (2nd ed. 1980) (emphasis added).

While trial may indeed be required in certain instances when the issuer sets up a defense under 13 Pa.C.S.A. § 5114, it is not required in all cases. There may be situations where fraud is alleged but even if proven, would not entitle the issuer to dishonor. In this regard, the Court in Intraworld commenting upon conduct justifying a court enjoining honor under 13 Pa.C.S.A. § 5114 stated:

[i]n light of the basic rule of the independence of the issuer’s engagement and the importance of this rule to the effectuation of the purposes of the letter of credit, we think that the circumstances which will justify an injunction against honor must be narrowly limited to situations of fraud in which the wrongdoing of the beneficiary has so vitiated the entire transaction that the legitimate purposes of the independence of the issuer’s obligation would no longer be served. A court of equity has the limited duty of
‘guaranteeing that [the beneficiary] not be allowed to take unconscientious advantage of the situation and run off with the plaintiff’s money on a pro forma declaration which has absolutely no basis in fact.’

Intraworld Industries, Inc. v. Girard Trust Bank, 461 Pa. at 359, 336 A.2d at 324-25.

The relevant inquiry then becomes would the alleged wrongdoing of Equibank, if established, have so vitiated the entire transaction that the legitimate purposes of the independence of the issuer’s obligation would no longer be served. The Court in Intraworld provided the example of Sztejn v. J. Henry Schroder Banking Corp., 177 Misc. 719, 31 N.Y.S.2d 631 (Sup.Ct. 1941), as a situation wherein the fraud was such as to vitiate the entire transaction. In Sztejn:

[t]he customer had contracted to purchase a quantity of bristles from the beneficiary and arranged to have the issuer issue a letter of credit in favor of the beneficiary. The credit required that the draft be accompanied by an invoice an a bill of lading.
The beneficiary placed fifty cases of merchandise on a steamship and obtained a bill of lading describing the material as bristles. The beneficiary then drew a draft and presented it, along with the required documents, through a collecting bank. The customer’s complaint alleged that the material shipped was not bristles as described in the documents, but rather “cowhair, other worthless material and rubbish [shipped] with intent to simulate genuine merchandise and defraud the plaintiff....”

Intraworld Industries, Inc. v. Girard Trust Bank, 461 Pa. at 360, 336 A.2d at 325.

The underlying transaction involved here is a $12,-500,000 construction and permanent mortgage loan and the rights and obligations of the parties under the loan are not presently before us. In contrast to Sztejn, the fraud alleged here does not even involve the underlying transaction. The alleged fraud is said to have been in the procurement of the letter of credit itself. Therefore, even if proven, we are unable to say the alleged fraud could so vitiate the entire transaction that the legitimate purposes of the independence of the issuer’s obligation would no longer be served. The trial court did not err when it entered the May 8, 1985 Order granting Equibank’s Motion for Summary Judgment against Caribank on it’s cross-claim for wrongful dishonor of its draft.

On appeal from the Order entered February 19, 1986, the issue of Equibank’s alleged fraud in the inducement is again raised, this time with respect to the claimed wrongful dishonor by Caribank of Equibank’s drafts on February 25, April 2, and May 20, 1985. We find the analysis set forth above to be dispositive of this issue.

It is additionally asserted that Equibank is collaterally estopped and barred by res judicata from asserting it’s second motion for summary judgment:

[t]he doctrine of res judicata establishes that ‘a final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the parties or their privies, on the same cause of action’____ To establish the defense of res judicata, four elements must be shown: (1) identity of the thing sued upon; (2) identity of the cause of action; (3) identity of the parties to the action; and (4) identity of the quality or capacity of the parties suing or being sued.

A.C. Elfman & Sons, Inc., v. Clime, 355 Pa.Super. 394, 397, 513 A.2d 488, 489, (1986). (citations omitted).

The term ‘res judicata’ is often sweepingly used, by courts and litigants alike, to refer to the various ways in which a judgment in one action will have a binding effect in a later action. ‘Res judicata’ encompasses the modern principle of issue preclusion (traditionally known as estop-pel), which is the common law rule that a final judgment forecloses relitigation in a later action involving at least one of the original parties, of an issue of fact or law which was actually litigated and which was necessary to the original judgment.

Clark v. Troutman, 509 Pa. 336, 340, 502 A.2d 137, 139 (1985).

The general rule of issue preclusion provides:

[w]hen an issue of law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the same parties, whether on the same or a different claim. Restatement (Second) of Judgments § 27 (1982).

Clark v. Troutman, 509 Pa. at 340, 502 A.2d at 139.

The doctrine of res judicata affords Appellants no relief. The parties and their capacity are the same. Both suits are for wrongful dishonor of drafts on the same letter of credit. However, when Equibank filed its cross-claim for wrongful dishonor of its January-24, 1985 draft, on February 11, 1985, it could not have addressed the issue of dishonor of drafts which had not yet occurred. In Whitt v. Philadel phia Housing Authority, 325 Pa.Super. 135, 472 A.2d 684 (1984) we stated that:

[¡judgment for a single breach of an installment contract is not a bar to an action for a subsequent breach____ Similarly, where rent is paid on a monthly basis, a judgment for unpaid rent is not ordinarily a bar to an action to recover rent coming due and remaining unpaid thereafter.

Id., 325 Pa.Superior Ct. at 43, 472 A.2d at 688.

Application of collateral estoppel will not inure to Appellant’s benefit. The issue of Equibank’s alleged fraud in the inducement as a justification for dishonor of drafts presented to Caribank on its letter of credit was decided adversely to Caribank by the Order of May 8, 1985.

Orders affirmed.

      . Pa.R.App.P. 513 provides:
      Consolidation of Multiple Appeals
      Where there is more than one appeal from the same order, or where the same question is involved in two or more appeals in different cases, the appellate court may, in its discretion, order them to be argued together in all particulars as if but a single appeal. Appeals may be consolidated by stipulation of the parties to the several appeals.

      . Professors White and Summers note:
      [S]ubsection [ (b)(1) ] does not explicitly state exceptions excusing the issuer from honor. Rather it states exceptions by way of negative implication. Thus it would appear by way of implication ... that, as against the beneficiary, the issuer may, even though the documents appear on their face to comply, lawfully refuse honor (but is not required to do so), if (1) the documents do not in fact conform to the warranties made on negotiation or transfer of a document of title ... or of a security ..., or (2) the documents are in fact forged or fraudulent, or (3) there is in fact "fraud in the transaction", provided that the party presenting the draft or demand for payment is the beneficiary or some other party who is not (a) a holder in due course ..., (b) a person to whom a document of title has been duly negotiated ..., or (c) a bona fide purchaser of a security____
      It follows that although the documents appear on their face to comply, whenever any one of the foregoing three exceptions is applicable, the issuer is not obligated to honor ... and may refuse to honor even if not enjoined from honor. If sued by the beneficiary, the issuer may set forth the appropriate exception as a defense.
      White & Summers, Uniform Commercial Code § 18-6 (2d ed. 1980).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    518 A.2d 1296
    LABORERS COMBINED FUNDS OF WESTERN PENNSYLVANIA, As Agent For Peter J. Livolsi, and Albert W. Betler, Trustees Ad Litem, Laborers District Council of Western Pennsylvania Welfare and Pension Funds, the Construction Industry Advancement Program of Western Pennsylvania Fund, and the Laborers District Council of Western Pennsylvania and Its Affiliated Local Unions v. Amidio MATTEI, Joseph Mattei and Domenic J. Mattei. Appeal of Amidio J. MATTEI and Domenic J. Mattei.
    Superior Court of Pennsylvania.
    Submitted Oct. 8, 1986.
    Filed Dec. 17, 1986.

      Paris A. Diamond, Pittsburgh, for appellants.
    Gary P. Hunt, Pittsburgh, for appellees.
    Before DEL SOLE, KELLY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of the Court of Common Pleas of Allegheny County entered against the appellants (Amidio and Domenic J. Mattei) in the amount of $44,247.65. We affirm in a case of first impression.

The undisputed facts reveal that the appellants are corporate officers of Mattei Bros., Inc., i.e., Domenic is secretary/treasurer with 49% of the stock and Amidio is president with 50% of the stock.

On October 27, 1982, Domenic, in his capacity as secretary/treasurer of the Corporation, entered into a collective bargaining agreement with the plaintiff/Laborers’ District Council of Western Pennsylvania, an AFL-CIO affiliate representing eight (8) local unions. Pursuant to the agreement, the Corporation obligated itself to deduct a fixed percentage of monies from the employees’ gross wages (for a Health and Welfare Fund, Pension Fund, Hourly Dues Deduction and Industry Advancement Funds) and remit the amount to a designated bank.

The plaintiff alleged in its complaint that the appellants failed to make the required payments from May through November of 1983. This failure to act, contended the plaintiff, constituted a violation of the collective bargaining agreement and entitled it to interest on the outstanding amount as a result thereof. Further, the plaintiff asserted that the appellants, as “officers and/or agents” of the Corporation, were considered an “employer” under the Pennsylvania Wage Payment and Collection Law (43 P.S. § 260.1 et seq.). Under this designation, urged the plaintiff, the appellants were automatically liable to pay liquidated damages for their default in the amount of 25% of the total remittance due.

The appellants’ response was that their bookkeeper embezzled the Corporation’s money, in the amount of $374,000, and, thus, the Corporation’s ability to meet its obligations under the contract with the plaintiff was severely hampered. In fact, the Corporation’s efforts to satisfy the arrearages due the various funds, with money generated from accounts receivable (estimated at $25,000), proved to be no solution since the current amounts due these same funds, in turn, became delinquent and brought the Internal Revenue Service into the picture. The end result was the Corporation’s filing Chapter XI bankruptcy in the Western District of Pennsylvania in an attempt to reorganize and salvage what it could of the business.

Following argument on the case, and the denial of post-trial exceptions, the court entered its order in favor of the plaintiff. The order was reduced to judgment and is questioned on appeal.

The sole issue raised by the appellants at page iv of their brief is, in essence, one of whether, absent any evidence of culpability, the mere retention of a corporate office at the time that wage and pension benefits fall delinquent because of embezzlement activities of a corporate employee is sufficient basis alone to impose personal liability upon any corporate officer under 43 P.S. §§ 260.9a, 260.10.

We begin by observing that Pennsylvania’s Wage Payment and Collection Law was promulgated to afford additional means to “an employee, labor organization, or party to whom any type of wages is payable to recover unpaid wages and liquidated damages”. See 43 P.S. § 260.9a(a), (b); Haft v. U.S. Steel Corp., 305 Pa.Super. 109, 451 A.2d 445 (1982); Todora v. Jones & Laughlin Steel Corp., 304 Pa.Super. 213, 450 A.2d 647 (1982). Further, as is relevant herein, the Act defines “wages” to include fringe benefits payable from amounts withheld from the employees’ pay by an employer, which itself is defined to encompass a corporation or any agent or officer of a corporation employing any person in this Commonwealth. 43 P.S. § 260.2a. Thus, there can be no dispute that Domenic and Amidio, as secretary/treasurer and president, respectively, of Mattei, Bros., Inc., would be considered an “employer” under the language of the Act.

As for an employer who obligates himself by agreement, as was the case here, to deduct monies from employees’ pay for fringe benefit purposes, the Act requires that the employer must remit the deductions within a prescribed period. 43 P.S. § 260.3(b). Failure to do so, as recited earlier, entitles the employee(s) or the(ir) representative to activate the remedial measures provided for under the Act, i.e., the filing of suit in any court of competent jurisdiction or, in the alternative, have the Secretary of Labor and Industry proceed in his stead. 43 P.S. § 260.9a.

The question of liability under the Act is to be gleaned from a persual of the Act as a whole, and, in this effort, we seek to effectuate the intention and purpose of the Legislature by its passage (1 Pa.C.S. § 1921), e.g., to provide an employee with a statutory remedy for an employer’s breach of its contractual obligation to remit wages. See Sendi v. NCR Comten, Inc., 619 F.Supp. 1577, 1579 (E.D.Pa.1985).

The appellants would have us embrace'the argument that the bookkeeper’s embezzlement of the Corporation’s monies is the equivalent of a “good faith dispute”, provided for under the Act, exonerating them from any liability for payment. It is true that in subsection (c) of Section 260.9a and Section 260.10, both provisions allow as a defense to the claim by an aggrieved party for wages the “good faith contest or dispute of any wage claim ... accounting for such nonpayment”.

Nowhere in the Act is the aforementioned verbiage defined. However, since the Act is a supplementation to and not a substitute for one’s common law cause of action for breach of contract (see Sendi, supra), we see no reason why the defenses acknowledged in the law for similar contract claims should not guide us in determining the viability of the appellants’ contention to discharge their contractual obligation, the impairment of which was caused by the criminal acts of another.

Generally, to constitute a good defense to an action based on contract, the matters relied upon must be germane to the cause of action pleaded and must present a legal reason why the plaintiff should not recover. 8 P.L.E. Contracts § 382. A primary example of the nexus necessary between the underlying basis for a suit that is filed and the legal justification in defense of the claim asserted is G.A.C. Credit Corp. v. Acme Accordian Studios, Inc., 220 Pa.Super. 148, 286 A.2d 678 (1971).

In Acme, the creditor/appellant financed the debtor/ap-pellee’s purchase of various goods from a third party/franchiser. The third party arranged for the financing to help the appellee operate one of its franchises. After some time, the appellee and the third party terminated their relation, at which time a balance was still due the appellant for merchandise sold by the appellee but never repaid to the appellant. Pursuant to the appropriate documents, the appellant confessed judgment for the unpaid balance. It was opened thereafter on petition of the appellee, which culminated in an appeal to this Court.

The appellee, in its petition to open, admitted the indebtedness and that there was no legal relationship between the third party/franchiser and the appellant. The appellee maintained that all of its financing arrangements with the appellant were made through the third party, and that, therefore, it should be allowed to assert as defenses unliqui-dated claims which it allegedly had against the third party for credits and breach of contract. This Court refused to adopt the appellee’s arguments and reversed the lower court’s opening of the judgment. In the course thereof, we stated, as is relevant herein, that:

The appellee ... claims damages against [the third party] arising out of the latter’s breach of their franchise agreement. However, even if appellee has a cause of action for breach of contract against [the third party], this is not a defense on the merits against appellant.

220 Pa.Super. at 151-52 n. 4, 286 A.2d at 680 n. 4.

Instantly, as in Acme, the conduct of a third party will not be permitted to affect the appellants’ contractual obligations. Therefore, any impossibility of performance is, we believe, the result of conduct emanating from within the corporate structure, and, as a result, reverts back, as far as accountability goes, to those best equipped to monitor its inner workings, i.e., the officers. A fortiori, a breach of contract, not an excuse for failure to perform, is the correct appellation. See generally Commonwealth ex rel. v. United States Fidelity & Guaranty Co., 314 Pa. 140, 146, 170 A. 686 (1934).

Further, as made mention of in the Restatement (Second) of the Law of Contracts § 261, Comment e, “[ejven if a party contracts to render a performance that depends on some act by a third party, he is not ordinarily discharged because of a failure by that party because this is a ... risk that is commonly understood to be on the obligor.” Nor has the law permitted an obligor to skirt liability under its contract because of its financial condition (see Robert H. Fox Co. v. Keystone Driller Co., 232 F.2d 831, 836 (3rd Cir.1956)), or the negligence of a third party hired by the obligor. McLouth Steel Corp. v. Mesta Machine Co., 116 F.Supp. 689, 692 (E.D.Pa.1953), aff'd 214 F.2d 608 (3rd Cir.), cert. denied, Hartford Acc. & Indem. Co. v. Foster, 348 U.S. 873, 75 S.Ct. 109, 99 L.Ed. 687 (1954).

Thus, we see no logic in imposing the brunt of this financial fiasco on those so attenuated from the core of the fault as to be absolved from any wrongdoing, i.e., the union members, and place the obligation on the shoulders of those who make the decisions as to the manner in which the Corporation is managed. The Legislature, in its enactment of the Wage Payment and Collection Law, has not indicated otherwise. See Ward v. Whalen, 18 Pa.D. & C.3d 710, 712 (C.P. Allegheny County 1981), wherein it was written, with regard to personal liability of corporate officers for default under the Act,

The Legislature had some purpose for including an agent or officer of a corporation employing persons in the Commonwealth within the definition of employer, and the only apparent purpose was to subject these persons to liability in the event that a corporation or similar entity failed to make wage payments. Its reason for doing so is obvious. Decisions dealing with personnel matters and the expenditure of corporate funds are made by corporate officers and it is far more likely that the limited funds of an insolvent corporation will be used to pay wages and that a work force will be reduced while the corporation is still capable of meeting its obligations to its employes if personal liability is imposed on the persons who make these decisions.

Accord Carpenters Health and Welfare Fund of Philadelphia and Vicinity v. Ambrose, Inc., 727 F.2d 279, 282-83 (3rd Cir.1983); Amalgamated Cotton Garment v. J.B.C. Co. of Media, 608 F.Supp. 158, 168 (W.D.Pa.1984); In re Johnston, 24 B.R. 685, 687 (1982).

We wish to make one last point. Of those courts which have had occasion to rule on the personal liability of corporate officers in the face of a corporation’s failure to make its required contributions to various union funds, as provided for in their collective bargaining agreement, all have, without exception, held the officer(s) of the corporation personally liable, and they did so without reference to any proof of culpability or scienter as a sine qua non to establishing a contravention of the Act in a civil suit. See Ambrose supra; Amalgamated Cotton Garment, supra; In re Johnston, supra; Amalgamated Cotton Garment and Allied Industries Fund v. Dion, 341 Pa.Super. 12, 491 A.2d 123 (1985).

Therefore, having been presented with no reasons for meriting a reading of the element of “scienter” into the quantum of proof necessary to warrant a civil redress of an aggrieved party’s rights under the Act, we find that the appellants’ corporate positions exposed them to liability for the corporation’s breach of contract with the appellee. We, likewise, refuse to embrace the appellants’ contention that the embezzlement of funds should be equated to a “good faith contest” of the “wages” claimed so as to exonerate them from responsibility under Sections 260.9a and 260.10. The reason is evident from the fact that the appellants do not dispute the withholding of monies from the union members’ pay due the various funds. Nor do the appellants argue that the appellee has done some act or failed to do an act violative of the collective bargaining agreement and justifying a holding in abeyance of the renumerations owed under the explicit contractual terms.

As a result, as we read the Act in toto, a “good faith contest” should be premised upon some impropriety on the part of the employee/obligee affecting his right to his “wages”, in this case pension and other welfare benefits, due him from the obligor. Under the particular circumstances here, we fail to see how the actions of a third party (embezzler) affects a right owed a signator to a bilateral agreement which has been faithfully adhered to by the obligee.

Judgment affirmed.

      . Joseph Mattei, listed as a party-defendant, was held not to be liable by the trial court.

      . As an aside, we note that recoupment (in the form of restitution— $75,000) was secured on behalf of the Corporation following the bookkeeper’s conviction of embezzlement in February of 1985 in the Court of Common Pleas of Allegheny County.
      Also, although the question of what effect the Corporation’s filing of a voluntary petition in bankruptcy might have on its contract is not before us, we observe that the matter is thoroughly covered at 18 Williston on Contracts § 1980 et seq. (1978).

      . The respective sections read as follows:
      § 260.9a. Civil Remedies and Penalties
      ******
      (c) The employe or group of employes, labor organization or party to whom any type of wages is payable may, in the alternative, inform the secretary of the wage claim against an employer or former employer, and the secretary shall, unless the claim appears to be frivolous, immediately notify the employer or former employer of such claim by certified mail. If the employer or former employer fails to pay the claim or make satisfactory explanation to the secretary of his failure to do so within ten days after receipt of such certified notification, thereafter, the employer or former employer shall be liable for a penalty of ten percent (10%) of that portion of the claim found to be justly due. A good faith dispute or contest as to the amount of wages due or the good faith assertion of a right of set-off or counter-claim shall be deemed a satisfactory explanation for nonpayment of such amount in dispute or claimed as a set-off or counter-claim. The secretary shall have a cause of action against the employer or former employer for recovery of such penalty and the same may be included in any subsequent action by the secretary on said wage claim or may be exercised separately after adjustment of such wage claim without court action.
      § 260.10. Liquidated damages
      Where wages remain unpaid for thirty days beyond the regularly scheduled payday, or, in the case where no regularly scheduled payday is applicable, for sixty days beyond the filing by the employe of a proper claim or for sixty days beyond the date of the agreement, award or other act making wages payable, or where shortages in the wage payments made exceed five percent (5%) of the gross wages payable on any two regularly scheduled paydays in the same calendar quarter, and no good faith contest or dispute of any wage claim including the good faith assertion of a right of set-off or counter-claim exists accounting for such non-payment, the employe shall be entitled to claim, in addition, as liquidated damages an amount equal to twenty-five (25%) of the total amount of wages due, or five hundred dollars ($500), whichever is greater.
      43 P.S. §§ 260.9a(c), 260.10 (Supp.1986).

       ... Here, the appellant’s cause of action is based solely on the financing agreement while the alleged breach of contract stems from the franchise agreement between appellee and [the third party] ... the transactions are clearly separate.

      . Parenthetically, we observe that the appellants’ recourse is to seek recoupment from the former corporate employee/bookkeeper. If the appellants pay and, in the future, the errant bookkeeper makes good on her promise to repay the monies taken (see note 2, supra), the appellants’ right to repayment will furnish reimbursement. See generally Commonwealth ex rel. v. United States Fidelity & Guaranty Co., 314 Pa. 140, 147, 170 A. 686 (1934). In any event, as has been stated in Volume 2 of the Restatement (Second) of the Law of Contracts in the Introductory Note at page 309, contract liability is strict liability. It is an accepted maxim that pacta sunt servanta, contracts are to be kept. In other words, the obligor is therefore liable in damages for breach of contract even if he is without fault and even if circumstances have made the contract more burdensome or less desirable than he had anticipated. Id. Accord Monaco Borough v. Monaco Street Railway Co., 247 Pa. 242, 93 A. 344 (1915). For the espousal of a view reflective of some acknowledged defenses to a breach of contract, i.e., impossibility, see 6 Corbin on Contracts § 1320 et seq. (1962).

      . On this basis, i.e., the civil action brought by the appellee, we find the quantum of proof necessary to establish a criminal violation of the Act (43 P.S. § 260.11a) is not so easily transposed to a civil suit for damages for breach of contract.
      For instance, when dealing with those to be held criminally liable under the Act, subsection (c) of Section 260.11a speaks in terms of an "employer” encompassing "a corporation, the president, secretary, treasurer or officers exercising corresponding functions". The italicized portion has been interpreted in Commonwealth v. Guigliano, 351 Pa.Super. 162, 505 A.2d 317 (1986) to require that corporate officers must "exercise at least some functions of their offices” to be held criminally responsible.
      However, it will be noted that the civil liability section of the Act (43 P.S. § 260.9a) talks only in terms of the responsibility of the "employer", which does not include the additional element of those who function as corporate officers but lack the title customarily associated with the task being performed. Accordingly, we read the language in the two sections (civil vis-a-vis criminal) to denote an intention on the part of the Legislature to treat matters differently, with regard to the quantum of proof necessary to establish a violation of the respective sections, depending upon the type of complaint lodged. Otherwise, there would have been no reason for the Act to elaborate upon the scope of the term “employer” in the criminal portion, given that it was already defined in another section, unless different proof levels were intended. Such a reading gives full effect to every portion of the Act, as we are required to do by law. See 1 Pa.C.S. § 1921(a). Thus, we do not find Guigliano to be controlling so as to hold harmless either of the appellants by inquiring into how each functioned within the entity.
      More importantly, we hold that the matter at bar is to be resolved under contract principles, which, as are applicable to the case at bar, do not look to the breaching party’s thought processes in assessing whether the terms of the agreement were met. The appellants’ failure to comply with their part of the contract, due in no part to the conduct of the appellee, renders each liable. To hold otherwise would place a hardship upon a party who had no hand in impairing the implementation of the agreement. All matters being equal, we read the statute and the case law to place the onus on the appellants to satisfy their part of the contract.
      As always, the parties can relieve themselves in future agreements for such losses by excepting themselves from accountability in the contract, or insuring themselves against such a situation.
      We also posit the question of whether the appellants’ lack of diligence in supervising their operations, as far as accounting matters are concerned, was a contributing factor in the defalcation of the monies, and, thus, would impede their attempt to allege a supervening act as a defense to their liability. See 6 Corbin on Contracts § 1329 at 346-48 (1962).


author: BECK, Judge:

text:
    518 A.2d 1302
    Calvin HODDER, Frank E. Fickinger and Bonnie W. Fickinger, his wife, John D. Kutch and Geraldine A. Kutch, his wife, James M. Bucci and Erla R. Bucci, his wife and David Lersch v. Ellsworth R. GREEN and Charlotte M. Green, Appellants.
    Superior Court of Pennsylvania.
    Submitted Sept. 29, 1986.
    Filed Dec. 22, 1986.

      John P. Liekar, Public Defender, Canonsburg, for appellants.
    James H. McCune, Washington, for appellees.
    Before BROSKY, BECK and POPOVICH, JJ.
   BECK, Judge:

This is an appeal from the lower court’s order granting appellees’ request for a declaratory judgment. Appellants contend that the lower court erred in holding that their proposed placement of a mobile home, with the wheels and undercarriage detached, upon a cement foundation violated a restrictive covenant.. For the reasons that follow, we affirm the order of the lower court.

Appellants acquired title to the property in question from their parents. The deed to the property contains the following restrictions:

1. That no structure or building shall be erected at a distance no less than seventy-five (75) feet from the center line of Christy Road, or Township Road No. 627.
2. That no mobile home and/or trailer shall be placed on the premises.
3. No dwelling home shall be erected, the cost of which is less than Twelve Thousand ($12,000.00) Dollars.

Deeds to the neighboring properties contain the same restrictions. In May, 1985, appellants applied for a building permit to allow them to place a mobile home, with the wheels and undercarriage detached, on a cement block foundation on their property. The foundation was to have consisted of a concrete base with thirteen courses of eight inch concrete block placed on top. At the tenth or eleventh course, four six-inch steel H beams were to be incorporated into the foundation to which the mobile home would then be welded. Lower Court Opinion at 4. The foundation was to be 12-feet wide and sixty-feet long and was to contain a partial basement with a laundry room, a bedroom, and a garage. Id. Appellants’ neighbors brought a declaratory judgment action claiming that appellants’ proposal violated the restrictive covenant. The lower court held that placing a mobile home on a cement foundation would violate the restrictive covenant, and this appeal followed.

Appellants contend that the lower court erred in its conclusion that their proposal would violate the restrictive covenant because a mobile home attached to a cement foundation is no longer a mobile home within the meaning of the restrictive covenant. In support of their contention, appellants cite several cases holding that a mobile home that rests on a permanent foundation with its wheels detached is no longer a mobile home, but a fixed dwelling. See Geiger v. Zoning Hearing Bd. of Twp. of North Whitehall, 510 Pa. 231, 507 A.2d 361 (1986); Anstine v. Zoning Bd. of Adjustment of York Twp., 411 Pa. 33, 190 A.2d 712 (1963); Douglass Twp. v. Badman, 206 Pa. Superior Ct. 390, 213 A.2d 88 (1965); Ciavarella v. Zoning Bd. of Adjustment of Hazle Twp., 86 Pa. Commonwealth Ct. 193, 484 A.2d 420 (1984). Appellees respond by arguing that these cases are inapplicable to the present situation because they involve the issue of when a mobile home becomes sufficiently immobile to be considered a single-family detached dwelling within the meaning of particular zoning ordinances. The lower court concluded that mobile homes are not excluded because of their mobility, but rather, because of their appearance and thus, removing the mobile home’s mobility does not remove it from the confines of the restrictive covenant. We agree with the court below.

Although not favored by the law, restrictive covenants are legally enforceable. Morean v. Duca, 287 Pa. Superior Ct. 472, 475, 430 A.2d 988, 990 (1981). A restrictive covenant must be strictly construed against the party who wants to enforce it. Burns v. Baumgardner, 303 Pa. Superior Ct. 85, 91, 449 A.2d 590, 592-93 (1982); Morean v. Duca, supra. “To ascertain the intention of the parties, the language of the deed should be interpreted in light of the subject matter, the apparent object or purpose of the parties and the conditions existing when it was executed.” Dreher Twp. Bd. v. Solitron Dev. Co., 333 Pa. Superior Ct. 33, 40, 481 A.2d 1207, 1211 (1984).

Here, looking to the intent of the parties at the time the restrictive covenant was created, we conclude that any mobile home, regardless of whether it is attached to a foundation, is excluded by the restrictive covenant. Reading the restriction against mobile homes in conjunction with the restriction requiring that all dwellings have a minimum dollar value, we conclude that the restrictive covenant is a restriction on the aesthetic qualities of the homes built on the property. Thus the apparent object or purpose of the restrictive covenant is not to regulate a home’s mobility, but rather, to regulate its appearance. Dreher Twp. Bd. v. Solitron Dev. Co., supra. Here, appellants’ mobile home, despite its lack of mobility, will still look like a mobile home. Because the restrictive covenant was intended to regulate the aesthetic characteristics of the neighborhood, we conclude that appellants’ mobile home, although it will be placed on a foundation, is, nevertheless, the type of home that was meant to be excluded by the restrictive covenant. Accordingly, the lower court was correct in holding that appellant’s proposal would violate the restrictive covenant.

For the foregoing reasons, we affirm the judgment of the lower court.

Affirmed.


author: JOHNSON, Judge:

text:
    519 A.2d 417
    COMMONWEALTH of Pennsylvania v. Montinez BERNHARDT, Appellant. COMMONWEALTH of Pennsylvania v. Anthony OWENS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 29, 1986.
    Filed Nov. 21, 1986.
    Reargument Denied Jan. 13, 1987.

      Leonard N. Sosnov, Assistant Public Defender, Philadelphia, for appellánts.
    Leonard Dentchman, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

These consolidated appeals are from separate orders denying Appellants’ petitions for a writ of habeas corpus. These appeals present for our review the question of whether a criminal defendant is entitled to a writ of habeas corpus where he is subject to a lengthy incarceration prior to his preliminary hearing without cause shown.

On July 27, 1984, Appellant Bernhardt was arrested without a warrant by Philadelphia police and charged with robbery and related offenses. Following a preliminary arraignment, bail was set at $4,000.00. Bernhardt’s preliminary hearing was scheduled for August 2, 1984. When the complaining witness failed to appear, the Commonwealth requested and was granted a continuance. The preliminary hearing was continued until December 19, 1984. Bernhardt’s bail was also reduced to $3,000.00. Subsequently on August 22, 1984, appellant Bernhardt filed a petition for a writ of habeas corpus, wherein he requested to be discharged from custody pending his preliminary hearing. Following a hearing, the trial court denied the petition for writ of habeas corpus on September 10, 1984. A subsequent petition to reduce bail was denied by the court on October 1, 1984. On October 4, 1984, Bernhardt filed a timely appeal to this court from the order denying his petition for habeas relief. Appellant’s motion for release pending a disposition of his appeal was denied by this court per curiam on October 10, 1984. Later on October 12, 1984 Bernhardt was released on bail. Thereafter on December 19, 1984, when the complainant failed to appear for the preliminary hearing, the trial court granted the Commonwealth’s motion to withdraw the prosecution without prejudice.

Appellant Owens was arrested on March 20, 1985 and charged inter alia, with burglary and receiving stolen property. Bail was set at $25,000.00 and Owens’ preliminary hearing was scheduled for March 27, 1985. On that date, the Commonwealth requested and was granted a continuance for further preparation. The preliminary hearing was rescheduled for May 7, 1985. The record indicates that on April 1, 1985 a petition for reduction of bail/writ of habeas corpus was filed. A review of the record indicates that the document filed on April 1, 1985 was captioned petition for reduction of bail, with the language “writ of habeas corpus” handwritten in pencil underneath. On the back of the petition is a stamp signed by Judge David N. Savitt indicating that the petition for bail was denied on April 8, 1985. Further review of the notes of testimony show that a hearing was held on the petition for writ of habeas corpus, N.T., 4/26/85, after which Judge Savitt denied appellant habeas relief. Following a hearing on April 26, 1985, Judge Savitt orally denied appellant Owens’ petition for a writ of habeas corpus. On April 30, 1985, this appeal followed. Subsequently on May 7, 1985, Owens’ preliminary hearing was held and appellant Owens was bound over for trial.

Before addressing the merits of this appeal we must first determine whether the Superior Court has jurisdiction.

Generally, an immediate appeal will not lie from an order denying a pretrial petition for habeas corpus as such an order is interlocutory. Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980). However, where exceptional circumstances exist, denial of a pretrial application for a writ of habeas corpus may be appealable. We note that in Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73 (1977) this court addressed the merits of an appeal challenging a pretrial petition for habeas relief without comment on whether such an order was interlocutory. In Commonwealth v. Rucco, 229 Pa.Super. 247, 324 A.2d 388 (1974), this court defined extraordinary circumstances as those “requiring the safeguarding of basic human rights.” We feel that the facts of these appeals constitute such exceptional circumstances. Commonwealth v. Donohue (Nos. 1304 and 1305 Philadelphia 1985; filed October 14, 1986).

Normally, the existence of an actual controversy is essential to appellate jurisdiction and, if an event occurs which renders it impossible to grant any relief, the issue is moot. K.L.H. v. G.D.H., 318 Pa.Super. 330, 464 A.2d 1368 (1983); Commonwealth v. Smith, 336 Pa.Super. 636, 486 A.2d 445 (1984). However, exceptions to the mootness doctrine exist where (1) the question involved is capable of repetition but likely to evade review or; (2) the question involved is one of public importance. In Re Estate of Dorone, 349 Pa.Super. 59, 502 A.2d 1271 (1985); Commonwealth v. Smith, supra. In evaluating whether a question is capable of repetition but likely to evade review, we will consider whether the challenged action is too short in its duration to permit full litigation and whether there is a reasonable expectation that the same complaining party will be subject to the same action again. Dorone, supra, Commonwealth v. Buehl, 316 Pa.Super. 215, 462 A.2d 1316 (1983).

The Commonwealth submits that the issues raised do not fall within the exception to the case or controversy requirement as appellants could have sought review of their bail determinations pursuant to Pa.R.A.P. 1762(a)(2) and. 1501 et. seq. However, Pa.R.A.P. 1561, which addresses the disposition of a petition for review, provides in section (d) that review in the nature of criminal habeas corpus or post conviction hearing relief may not be granted under this chapter. Here appellants seek review not of their bail determinations but rather denial of habeas corpus relief.

Pretrial detentions, such as those in the instant matter, are by their nature temporary. As such it is unlikely that any challenge to pretrial detentions would be afforded full appellate review prior to a defendant’s release or conviction. Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54, 63 (1975). Appellant Bernhardt was released on bail and the charges against him were ultimately withdrawn. Appellant Owens was bound over for trial after a preliminary hearing held subsequent to the filing of this appeal. Accordingly, the questions raised by these appeals are moot as to these individual defendants. However, there is a reasonable likelihood that other defendants will be subject to lengthy preliminary hearing delays. Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976).

In Carros, supra, the court was confronted with the question of whether a child committed to a child welfare agency by juvenile court as a deprived child has a right to treatment. While the child in that case had attained majority prior to argument on the appeal and was no longer under the supervision of the Child Welfare Services, the court in finding jurisdiction viewed the matter as a continuing controversy affecting a large number of people. In reaching this conclusion, the court noted that the action was not brought as a class action nor was testimony received during the hearings below as to the possible adverse affects of Child Welfare Services practices on other children. The fact that Child Welfare Services would continue to serve deprived children made its ability to render suitable service to those children remain at issue.

Here we have a similar situation, where the action was not brought as a class action nor was testimony received with respect to the impact of Philadelphia County’s preliminary hearing scheduling practices on other defendants. Nevertheless, it is reasonable to assume that criminal defendants will continue to be brought before Philadelphia County courts and, its ability to schedule and hold prompt preliminary hearing will remain at issue. We note that at oral argument defendants submitted, and to its credit the Commonwealth did not vigorously deny, that the practice of preliminary hearing delays beyond 10 days was a recurring event in Philadelphia County.

Finally, we note that the issues presented involve deprivations of liberty, a matter of public importance. In Re S. O., 342 Pa.Super. 215, 492 A.2d 727 (1985) (while commitment periods in question have expired, live controversy still exists since involuntary commitment orders involve important liberty interests over which it behooves us to maintain appellate vigilance). In light of the foregoing analysis, we conclude that while the matters raised in these appeals are moot, the significant interests involved necessitate appellate review. We will therefore consider the merits of the issues presented.

We have chosen not to address the constitutional implications of the issues raised in this appeal as the issues involved are capable of resolution on a nonconstitutional basis. Commonwealth v. Allsup, 481 Pa. 313, 392 A.2d 1309 (1978). Pursuant to Pa.R.Crim.P. 140(d), unless a defendant waives his right to a preliminary hearing, one should be scheduled within three to ten days after his preliminary arraignment. In the event that the preliminary hearing cannot be held within the three to ten day period, upon cause shown, a continuance may be granted upon request of either party. Pa.R.Crim.P. 142.

While appellants agree that a preliminary hearing may be continued for cause shown, they submit that no good reasons were given for the delay. With respect to Bernhardt, a delay of 145 days ensued before the final scheduling of his preliminary hearing at which time the Commonwealth withdrew the prosecution. The reason given for the continuances was the complainant’s failure to appear. In Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73 (1977) the court stated:

That a party is properly granted a continuance for the purpose of procuring the attendance of material witnesses cannot be disputed. However, an accused must still be insured as speedy a preliminary hearing as practical; the necessity for preventing prolonged custody pending a determination of probable cause remains, despite the existence of valid reasons for a continuance.

Id., 248 Pa.Superior Ct. at 238, 375 A.2d at 75.

Here, while the record indicates that the basis for the continuances with respect to Bernhardt was the complainant’s failure to appear, the record is silent as to why the complainant failed to appear and what efforts the Commonwealth made to secure his appearance. The record shows a Philadelphia address for the victim/complainant. We do not believe that a notation on the record that the complainant failed to appear, without more, is sufficient to demonstrate cause for the granting of a continuance in compliance with Pa.R.Crim.P. 142.

The continuance delaying the preliminary hearing of appellant Owens is even more egregious, where the only reason given for the granting of the continuance was that the prosecution needed further preparation. This reason without more does not, in our view, justify the granting of a continuance which resulted in a delay of 48 days from the time of arrest to the preliminary hearing. A review of the record shows that at the hearing on Owens’ habeas petition, the Commonwealth explained that the reason for requesting a continuance was to get a detective who had taken defendant’s statement to testify. N.T., 4/26/85 at 3-5. There was, however, some disagreement on this point by defense counsel, even though this explanation was accepted by the court below. The Commonwealth’s testimony at the habeas proceeding was based upon unsubstantiated notations in its case file. We do not believe that such an unsworn statement is sufficient to establish why the prosecution requested a continuance. Commonwealth v. Evans, 326 Pa.Super. 57, 473 A.2d 606 (1984)

The complaint filed against appellant Owens alleges that on March 20, 1985 he forcibly entered the victim’s apartment and removed a VCR, jewelry and coins without her consent. Owens was arrested on the same day and arraigned. At the preliminary hearing, the Commonwealth is required to make a prima facie case that a crime has been committed and that the accused is the one who committed the crime. Commonwealth v. Gray, 322 Pa.Super. 37, 469 A.2d 169 (1983). In seeking a continuance, the Commonwealth asserted that it needed more time for preparation. However, based upon our review of the complaint, we fail to see what further preparation was necessary for the prosecution to proceed at the preliminary hearing scheduled for March 27, 1985. Indeed, if the Commonwealth was unprepared to make even a prima facie case that a crime had been committed and that Owens committed it, we question the wisdom of filing the charges against Owens initially.

In Wansley, supra this court found that the defendant had been unlawfully deprived of his liberty and was entitled to a writ releasing him from custody where he was incarcerated for over two months pending his preliminary hearing. In Commonwealth v. DeCosey, 246 Pa.Super. 412, 371 A.2d 905 (1977) the court found that a technical violation of Pa.R.Crim.P. 140(f)(1) did not mandate discharge where there was only a four day delay in holding the preliminary hearing and no prejudice inuring to the defendant was shown. In Wansley, supra the court distinguished DeCo-sey, supra by pointing out that, unlike the defendant in DeCosey, supra, the defendant there remained incarcerated, unable to post bail during the wait for his preliminary hearing. Thus, “incarceration is one of the obvious prejudices to an accused resulting from a delay in the scheduling of his preliminary hearing.” Wansley, 248 Pa.Super. at 238, 375 A.2d at 76. Here both Bernhardt and Owens were subject to lengthy periods of incarceration prior to their preliminary hearings.

Under the circumstances of these cases we conclude that Bernhardt and Owens were unlawfully deprived of their liberty. We cannot, however, agree with the broad relief sought by appellants. Appellants not only seek a reversal of the orders denying their habeas petitions but also a prophylactic rule requiring the automatic granting of habe-as relief where the defendant has / been incarcerated for more than thirty (30) days pending his preliminary hearing. Under appellants’ approach a writ of habeas would be required regardless of whether the preliminary hearing was continued for cause shown. We do not, however, have the authority to create a rule as suggested by defendants. Commonwealth v. Dugger, 506 Pa. 537, 543-544, 486 A.2d 382, 385 (1985). The rule making power resides in the Supreme Court. 42 Pa.C.S. § 1722. Moreover, we are not convinced that such a prophylactic rule is necessary.

We hold, rather, that where a preliminary hearing has not been held within the time required by Pa.R.Crim.P. 140(d)(1) and there has been no good cause shown for continuing the hearing beyond that time, an accused is entitled to be released from custody until the preliminary hearing has been held. Under the circumstances of this case, Bernhardt and Owens were unlawfully deprived of their liberty and were entitled to writs releasing them from custody until their preliminary hearings were held.

Orders reversed.


author:
WIEAND, Judge:
      KELLY, Judge,

text:
    519 A.2d 422
    COMMONWEALTH of Pennsylvania v. Denise SCHEINERT, Appellant.
    Superior Court of Pennsylvania.
    Argued May 28, 1986.
    Filed Dec. 11, 1986.
    Reargument Denied Jan. 27, 1987.

      Drew Salaman, Philadelphia, for appellant.
    Stephen B. Harris, Assistant District Attorney, Warring-ton, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and KELLY, JJ.
   WIEAND, Judge:

Denise Scheinert was tried and found guilty of driving while under the influence of alcohol. She had previously been arrested and charged with the same offense in 1983, after the effective date of the mandatory sentence provisions of 75 Pa.C.S. § 3731(e). On that occasion, however, she had been accepted into the Accelerated Rehabilitation Disposition program (ARD), where she successfully completed a period of probation. When, on September 30,1985, she appeared for sentencing for the later offense, the sentencing court treated her as a second offender and, consistent with the mandatory sentence provisions of 75 Pa.C.S. § 3731(e)(1)(h), imposed a sentence of imprisonment for not less than thirty days nor more than one year. On direct appeal from this judgment of sentence, Scheinert attacks the validity of the statutory provision which required the sentencing court to equate her prior participation in ARD with a first conviction. We find this argument lacking in merit and affirm the judgment of sentence.

The legislature, at 75 Pa.C.S. § 3731(e)(2), has provided as follows:

Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.

Appellant contends that this provision is in conflict with ARD rules adopted by the Supreme Court and, therefore, invalid. The adoption of general rules governing practice and procedure, she argues, has been vested exclusively in the Supreme Court by Article 5, section 10(c) of the Pennsylvania Constitution.

The Supreme Court’s rationale for the ARD rules which it adopted was explained as follows:

The purpose of this program is to eliminate the need for lengthy motions, trials and other court proceedings, in cases which are relatively minor or which involve social or behavioral problems which can best be solved by programs and treatments rather than by punishment. In many cases, legal defenses may be available which would result in acquittal or delay in disposition of the charges. When immediate treatment is needed, however, defendant and counsel may be willing to have defendant undergo such treatment without an adjudication of guilt.

PA.R.Crim.P. 185 comment. The rules which the. Court adopted, however, are silent with respect to the collateral consequences of a defendant’s participation in ARD. It must be conceded, as appellant calls to our attention, that this Court has held that participation in an ARD program may not be deemed a conviction for purposes of impeaching a witness. Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981). On the other hand, in Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982), the Court held that although ARD participation did riot constitute a conviction, a sentencing court did not commit error by taking into consideration the defendant’s prior participation in such a diversionary program. Compare: Commonwealth v. McSorley, 335 Pa.Super. 522, 527, 485 A.2d 15,18 (1984) (Cavanaugh, J., with McEwen, J. dissenting and Cirillo, J. concurring in result), aff'd, 509 Pa. 621, 506 A.2d 895 (1986) (“caselaw does not give a clear picture of how ARD affects the status of a criminal defendant”).

These decisions, however, are not controlling of the issue now before us. The law is well-settled that “[i]t is the province of the legislature to determine the punishment imposable for criminal conduct.” Commonwealth v. Wright, 508 Pa. 25, 40, 494 A.2d 354, 361 (1985), affirmed sub nom., Pennsylvania v. McMillan, — U.S. —, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). “The legislature has the right to fix the maximum penalty and likewise can, if it sees fit, name the minimum.” Commonwealth v. Glover, 397 Pa. 543, 545, 156 A.2d 114, 116 (1959).

The legislature, at 75 Pa.C.S. § 3731(e)(2), has provided that for the purpose of computing the number of prior convictions for purposes of determining the sentence to be imposed for driving while under the influence of alcohol, participation in ARD shall be considered a first conviction. This was clearly within the province of the legislature to do. When it did so, it did not come into conflict with ARD rules adopted by the Supreme Court. It did not legislate in an area of procedure which had been vested exclusively by Constitution in the Supreme Court of Pennsylvania. It acted solely within its province to determine the punishment for criminal conduct.

Appellant contends additionally that by equating ARD participation with a prior conviction for sentencing purposes, Section 3731(e)(2) violated her right to due process of law under the United States and Pennsylvania Constitutions. Fundamental fairness, she argues, commands that a prior charge may not be deemed a conviction for sentencing purposes unless the prior charge has resulted in an adjudication of guilt and the imposition of a judgment of sentence. We must reject this argument. Pa.R.Crim.P. 179 permits a defendant to be placed in the ARD program only after he or she has requested acceptance into the program, has indicated an understanding of the proceedings, and has accepted and agreed to comply with the conditions imposed by the trial court. “Defendants who accept ARD for drunk driving are now told that an ARD will be considered a conviction for sentencing purposes in the event of an arrest for drunk driving within the next seven years. Therefore, defendants who have accepted ARD since the effective date of the new drunk driving law have been given notice of the possible consequences of their acceptance.” Commonwealth v. Frost, 342 Pa.Super. 173, 178, 492 A.2d 448, 450 (1985). In light of the voluntary character of ARD participation and the required notice of its collateral consequences, it cannot be said that notions of fundamental fairness are violated because the legislature has directed that a person who has once been on ARD shall be sentenced as a second offender if he or she is convicted of driving while under the influence of alcohol as a result of a second arrest within a seven (7) year period. See: Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985); In re Appeal of Elias, 70 Pa.Cmwlth.Ct. 404, 453 A.2d 372 (1982); Commonwealth Department of Transportation v. McDevitt, 57 Pa. Cmwlth.Ct. 589, 427 A.2d 280 (1981), affd per curiam, 500 Pa. 532, 458 A.2d 939 (1983).

13] Appellant’s contention that she was denied due process by the Commonwealth’s failure to notify her of its intention to invoke Section 3731(e)(2) by an appropriate reference contained in the information is controlled by our decision in Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985) (en banc). In that case, we rejected the notion that due process required the Commonwealth to allege prior drunk driving convictions in a criminal information. See also: Commonwealth v. Kopycinski, 353 Pa.Super. 387, 510 A.2d 365 (1986); Commonwealth v. Potts, 352 Pa.Super. 299, 507 A.2d 1239 (1986); Commonwealth v. Hess, 348 Pa.Super. 600, 502 A.2d 707 (1985) (en banc).

Appellant contends finally that 75 Pa.C.S. § 3731(e)(2) is a bill of attainder and, therefore, is in violation of Article I, Section 9 of the Constitution of the United States. A bill of attainder is defined as a legislative enactment which determines guilt and inflicts punishment upon an identifiable person or group without a judicial trial. See: Nixon v. Administrator of General Services, 433 U.S. 425, 468, 97 S.Ct. 2777, 2803, 53 L.Ed.2d 867, 907 (1977); United States v. Brown, 381 U.S. 437, 445, 85 S.Ct. 1707, 1713, 14 L.Ed.2d 484, 490 (1965); United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252, 1259 (1946). However, appellant misperceives the effect of 75 Pa.C.S. § 3731(e)(2). The statute does not, as appellant suggests, inflict punishment upon persons who choose to participate in ARD programs when charged for the first time with driving while under the influence of alcohol. Rather, the statute prescribes the punishment to be imposed for a later conviction of driving while under the influence of alcohol after one has previously accepted the terms and conditions of ARD following an earlier arrest for driving while under the influence of alcohol. The conviction for which appellant was sentenced was imposed only after an adjudication of guilt. The sentence was not imposed for an unadjudicated charge which had resulted in her participation in an ARD diversionary program. The provisions of 75 Pa.C.S. § 3731(e)(2), therefore, do not require punishment Where there has been no prior adjudication of guilt by trial or guilty plea. The provisions of 75 Pa.C.S. § 3731(e)(2) do not constitute a bill of attainder; they are not proscribed by constitution.

The judgment of sentence is affirmed.

KELLY, J., joins this opinion and files a concurring opinion.

CAVANAUGH, J., joins this opinion and also the concurring opinion of KELLY, J.

KELLY, Judge,

concurring:

I join in the well-reasoned opinion of the majority. I write separately to address the apparent conflict between our finding that Accelerated Rehabilitation Disposition (ARD) participation must be considered the equivalent of a prior conviction under 75 Pa.C.S.A. § 3731(e)(2), and the statement in Commonwealth v. Knepp, 307 Pa.Super. 535, 541, 453 A.2d 1016, 1019 (1982), that “admission into an ARD program is not equivalent to a conviction under any circumstances.”

Once a district attorney decides to move a defendant’s admission into ARD, notice is sent to defendant explaining the program. A hearing is held in open court where prosecution, defense, and the victims, if any, may present testimony to the court regarding the appropriateness of ARD. If the judge determines that ARD should be permitted, the judge then informs the defendant of the conditions of the program. If the defendant accepts the conditions and agrees to yraive áll applicable statutes of limitation and speedy trial rights, then the record is closed and the charges are held in abeyance pending completion or termination of the program. See Pa.R.Crim.P. 175-185.

If the defendant successfully completes the ARD program, the charges are dismissed and no conviction results. Pa.R.Crim.P. 185. The appellant may petition to have the record of the arrest and ARD participation expunged. Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (1981). Because there has been no conviction, ARD participation provides no basis for impeaching a witness. Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981).

In Commonwealth v. McKellin, 9 Pa. D. & C. 3d 572, 576 (1979), the court stated, “[t]he disburdening effect of successful ARD completion is not tantamount to a finding of innocence.” The learned trial judge was correct. While ARD participation does not result in conviction, neither does it result in an acquittal. Consequently, an unexpunged ARD record may result in collateral consequences even though the direct consequences of arrest were avoided by ARD participation.

In Pennsylvania, prior unadjudicated arrests may properly be considered at sentencing provided the arrests are not regarded as establishing criminal conduct. Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973). Even arrests which resulted in acquittals may be considered at sentencing so long as the judge is aware of the acquittal. Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722 (1975). Likewise, ARD participation may be considered by the sentencing judge as an appropriate sentencing factor. Commonwealth v. Knepp, supra.

Pursuant to 75 Pa.C.S.A. § 3731(e)(2), all ARD cases arising after January 15, 1983 shall be construed as being equivalent to a conviction in determining whether the minimum mandatory sentence applies. See Commonwealth v. Frost, 342 Pa.Super. 173, 492 A.2d 448 (1985); Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985). In Commonwealth v. Wagner, 352 Pa.Super. 295, 507 A.2d 1237 (1986), this Court stated that “[f]or sentencing purposes, an ARD acceptance is identical to a conviction for violating the drunk driving act.” These statements are in apparent conflict with Knepp, supra.

However, in Commonwealth v. Potts, 352 Pa.Super. 299, 301, 507 A.2d 1239, 1240 (1986), this Court explained that “75 Pa.C.S.A. § 3731(e)(2) defines the term conviction for sentencing purposes under the act____” In other words, the term “conviction” has a special meaning under the act which is separate and distinct from the ordinary meaning of the word in other contexts. See also Commonwealth, Dept. of Trans, v. McDevitt, 57 Pa.Cmwlth. 589, 427 A.2d 280 (1981), aff'd 500 Pa. 532, 458 A.2d 939 (1983) (“participation in ARD program shall be considered a conviction for purposes of determining whether a person is a habitual offender under Section 1542 of the Vehicle Code”).

The legislature has not turned the nonadjudicatory ARD into a conviction. Rather, it has designated two separate sentencing factors (A.R.D. participation or a prior conviction) as being equally adequate to trigger the imposition of a mandatory minimum sentence. That the triggering factors are of unequal weight as sentencing factors is of no consequence. See 42 Pa.C.S.A. § 9714 (prior felonies of varying degrees of severity are equally effective in triggering mandatory sentence provisions). Thus, the conflict was one of semantics and not substance.

CAVANAUGH, J., joins this opinion and also the opinion of WIEAND, J.

      . The sentencing court also directed Ms. Scheinert to pay a fine of three hundred ($300) dollars and the costs of prosecution.

      . Pa.R.Crim.P. 175 to 185.

      . See: U.S. Const, amend. 14; Pa. Const, art. 1, § 9.

      . District attorneys have the sole discretion to move a defendant’s admission into ARD. See Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). Appellate review of the district attorney’s discretion is quite limited. Id., 508 Pa. at 311-312, 495 A.2d at 935; see also Pyle v. Court of Common Pleas, 494 Pa. 323, 431 A.2d 876 (1981); but see Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986) (remand for hearing at which district attorney may place reasons for denying ARD on the record).

      . Although the Commonwealth bears the burden of establishing an overriding need for retaining the arrest records, such need is readily apparent in the context of drunk driving cases. See Lutz, supra, 508 Pa. at 312-313, 495 A.2d at 936; 75 Pa.C.S.A. §§ 1539(c), 1542(c), and 3731(e)(2).

      . "However, it is yet undecided whether the Commonwealth’s right to show bias of a defense witness is sufficient to overcome the prohibition against inquiry into such matters as a juvenile record or admission into an ARD program." Id., 290 Pa.Superior Ct. at 7, 434 A.2d at 101.

      . It is important to note that outside of the special context of the mandatory minimum sentence triggering language contained in 75 Pa.C.S.A. § 3731(e)(2) and similar legislative enactments, sentencing courts are not required to give equal weight to ARD participation and prior convictions. See Knepp, supra. Thus, even in a drunk driving case, the sentencing judge may accord ARD participation less weight than a prior conviction in determining whether to sentence the offender to a period of incarceration in excess of the statutory minimum.


author: HOFFMAN, Judge: HESTER, Judge,

text:
    519 A.2d 427
    COMMONWEALTH of Pennsylvania v. Jerry JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 5, 1986.
    Filed Dec. 15, 1986.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before MONTEMURO, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from the denial of a petition for writ of certiorari filed with the Court of Common Pleas of Philadelphia County. Appellant was convicted in the Municipal Court of Philadelphia of carrying a firearm without a license, 18 Pa.C.S.A. § 6106, and carrying a firearm on a public street or place in Philadelphia, 18 Pa.C.S.A. § 6108. Appellant contends that certain physical evidence should have been suppressed because the police lacked either probable cause or reasonable suspicion sufficient to justify the seizure of this evidence. For the following reasons, we vacate the judgment of sentence and remand for a new trial.

On May 12, 1984, two Philadelphia police officers responded to a radio call ordering them to investigate a burglary at 317 N. 63rd St. in Philadelphia. These officers met with the complainant, who stated that at 3:20 p.m. two males had tried to kick in his front door, and that one of them, a black male wearing a gray sweatsuit, ran east on Vine St. N.T. July 13, 1984 at 4; id. April 19, 1985 at 4. Within two or three minutes of responding to the radio call, and approximately two blocks from the complainant’s home, the officers spotted appellant, a black male wearing a gray sweatsuit and carrying a blue gym bag, running west on Vine St. towards the scene of the crime. Id. July 13, 1984 at 4-7. The officers stopped appellant, who did not attempt to flee. Without questioning appellant, they patted him down and then searched his opaque, zippered gym bag, within which was found a .32 caliber revolver loaded with one live round of ammunition. Id. April 19, 1985 at 5-7. During a subsequent on-site identification, the complainant did not identify appellant as one of the perpetrators. Appellant was then arrested and charged with the instant offenses.

Appellant filed a motion to suppress the revolver, which was denied by the Municipal Court. In a Municipal Court bench trial, appellant was found guilty of the weapons offenses. Appellant subsequently filed a petition for writ of certiorari with the Court of Common Pleas, seeking suppression of the seized evidence. The court denied the petition, prompting this appeal.

The standard for reviewing the propriety of a suppression ruling is well-established:

Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Cavalieri, 336 Pa.Superior Ct. 252, 254-55, 485 A.2d 790, 791 (1984). The threshold for a finding of probable cause to arrest exceeds that for justification of a stop and frisk: “[e]ven in the absence of probable cause, an individual may be stopped and briefly detained.” Commonwealth v. Prengle, 293 Pa.Superior Ct. 64, 68, 437 A.2d 992, 994 (1981). Because appellant contends that the evidence should have been suppressed under either standard, we must first determine whether the record supports the lower court’s factual findings and legal conclusions that the search of appellant was justified under the stop and frisk doctrine. If the frisk or search of appellant was not justified under the standard first established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), then it follows that this evidence could not properly have been admitted as the fruit of a search incident to a lawful arrest predicated upon probable cause.

We must examine the investigating officers’ actions at two levels of inquiry: the legality of the initial stop, and the propriety of the officers’ actions subsequent to the stop. See Commonwealth v. Otto, 343 Pa.Superior Ct. 457, 460-61, 495 A.2d 554, 555 (1985). “If [the] police have a reasonable suspicion that criminal activity is afoot, they may make a temporary, investigatory stop even though they lack probable cause to make an arrest.” Commonwealth v. Capers, 340 Pa.Superior Ct. 136, 141, 489 A.2d 879, 881 (1985) (citation omitted). The initial stop of a person is legitimate if the investigating officers “[c]an point to specific and articulable facts which in conjunction with rational inferences deriving therefrom reasonably warrant the intrusion.” Commonwealth v. Prengle, supra. Such a stop facilitates the acquisition of information useful to the investigating officers:

Terry recognizes that it may be the essence of good police work to adopt an intermediate response---- A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time.

Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (citation omitted). The search or frisk of a suspect incident to such a stop, however, must meet a higher threshold of justification

The police officer may legitimately sieze a person ... and conduct a limited search of the individual’s clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him to conclude that criminal activity is afoot and that the person with whom he is dealing may be armed and dangerous.

Commonwealth v. Hicks, 434 Pa. 153, 158-59, 253 A.2d 276, 279 (1969).

A police officer need not personally observe unusual or suspicious conduct reasonably leading to the conclusion that criminal activity is afoot and that a person is armed and dangerous; this Court has recognized that “... a police officer may rely upon information which is broadcast over a police radio in order to justify an investigatory stop.” Commonwealth v. Prengle, supra, 293 Pa.Superior Ct. at 68, 437 A.2d at 994. In such cases, the factors that must be considered in justifying an investigatory stop and subsequent frisk include the specificity of the description of the suspect in conjunction with how well the suspect fits the given description, the proximity of the crime to the sighting of the suspect, the time and place of the confrontation, and the nature of the offense reported to have been committed. See Commonwealth v. Whelton, 319 Pa.Superior Ct. 42, 50 n. 4, 465 A.2d 1043, 1049 n. 4 (1983).

Although specificity of description is only one of the factors examined in justifying a stop and frisk, it is of great importance in situations where the investigating officers have not personally observed suspicious behavior; the police need to have identification information specific enough to reasonably conclude that the party they are stopping is actually the person for whom they are searching. See Commonwealth v. Whelton, 319 Pa.Superior Ct. 42, 465 A.2d 1043 (stop and frisk of robbery suspect justified where defendant matches description as to race, height, weight, age, hair, coat, footwear, and facial characteristics); Commonwealth v. Capers, 340 Pa.Superior Ct. 136, 489 A.2d 879 (stop and frisk justified where defendant matches description of assailant as to face, height, build, skin tone and jacket, acts suspiciously, approaches from scene of crime, is known to be armed, and has bloody hand). Our Supreme Court has held, however, that an overly general description will not support a Terry stop and frisk in the absence of suspicious behavior observed by the investigating officer. Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). In Berrios, the frisk of the defendant was found improper where police, seeking two blacks in dark clothing and one hispanic in light clothing moving east on a particular street after a shooting, seized a gun from an hispanic man in light clothing, who was accompanied by a black man dressed in dark clothing and was walking east on the specified street within twenty minutes and three blocks of the shooting. Our Supreme Court noted that not only was the defendant acting in a normal manner, but also that the description of the perpetrator was too vague to justify searches of all “[hispanics] wearing light clothing and walking with a negro in this area.” Id., 437 Pa. at 342, 263 A.2d at 344.

Close spatial and temporal proximity of a suspect to the scene of a crime can also heighten a police officer’s reasonable suspicion that a suspect is the perpetrator for whom the police are searching. Moreover, the time and place of an encounter may indicate that a person, conspicuous through their solitary presence at a late hour or desolate location, may be the object of a search. See Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985) cert. denied Cortez v. Pennsylvania, — U.S. —, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); Commonwealth v. Carter, 334 Pa. Superior Ct. 369, 483 A.2d 495 (1984).

To justify a frisk incident to an investigatory stop, the police need to point to specific and articulable facts indicating that the person they intend to frisk may be armed and dangerous; otherwise, the talismanic use of the phrase “for our own protection,” a phrase invoked by the investigating officers in the instant case, becomes meaningless. An expectation of danger may arise under several different circumstances. The police may reasonably believe themselves to be in danger when the crime reported to have been committed is a violent crime, see Commonwealth v. Prengle, supra, 293 Pa.Superior Ct. at 69, 437 A.2d at 995, when a perpetrator is reported to possess or have used a weapon, see Commonwealth v. Capers, supra, 340 Pa.Superior Ct. at 141, 489 A.2d at 881; Commonwealth v. Sheridan, 292 Pa.Superior Ct. 278, 437 A.2d 44 (1981), aff'd 502 Pa. 612, 467 A.2d 1126 (1983), when the police observe suspicious behavior such as sudden or threatening moves, or the presence of suspicious bulges in a suspect’s clothing, see Commonwealth v. Carter, supra, 334 Pa.Superior Ct. at 369, 483 A.2d at 497, or when the hour is late or the location is desolate, see Commonwealth v. Cortez, supra, 507 Pa. at 533, 491 A.2d at 112; Commonwealth v. Prengle, supra, 293 Pa.Superior Ct. at 70 n. 5, 437 A.2d at 995 n. 5. A frisk might also be implemented to protect innocent bystanders within the vicinity of an encounter. See Commonwealth v. Whelton, supra, 319 Pa.Superior Ct. at 53, 465 A.2d at 1049.

In the instant case, the search of appellant’s bag was improper. Here, the police initially responded to a radio call reporting a burglary in progress. The police officers subsequently acquired first-hand information through their interview with the complainant, who stated that one of the perpetrators, a black male wearing a gray sweatsuit, ran east on Vine St. The police were thus certain that criminal activity was afoot. This vague description, however, was no more comprehensive than that which the police acted upon in Berrios, and was insufficient in itself to justify a stop and frisk.

Moreover, the investigating officers’ interview with the complainant yielded little evidence that appellant might be armed and dangerous. While the police may have had some expectation of danger básed on the nature of the crime reported over the police radio, the complainant made no mention of the use or presence of weapons, leaving the investigating officer with few, if any, specific or articulable facts suggesting that appellant was armed and dangerous.

The specific facts and circumstances of the encounter between appellant and the police also yield little evidence that the investigating officers’ observations justified the immediate frisk of appellant and search of his sealed bag. Appellant was spotted within several minutes and within a few blocks of the crime. He matched the description supplied by the complainant in that he was a black male wearing a gray sweatsuit, and also in that he was running, albeit towards rather than away from the scene of the crime. In light of appellant’s proximity and conformance with the limited description, the police acted diligently in stopping him. Our difficulty lies in the immediate frisk of appellant and search of his bag without first implementing an intermediate investigatory response that could supply the investigating officers with sufficient articulable facts to justify a frisk or search.

The investigating officers had insufficient information to conclude that appellant was the perpetrator of the crime. He was wearing a gray sweatsuit and running on a city street during an afternoon in May. This is not unusual or suspicious behavior; any number of men in the area might have fit this description. Furthermore, appellant was running towards the scene of the crime, rather than in the direction stated by the complainant and dictated by logic.

Additionally, there is no evidence that the investigating officers, prior to frisking appellant, had observed any behavior or circumstances suggesting that appellant might be armed and dangerous. He willingly approached the investigating officers, and there is no evidence that he acted suspiciously or had suspicious bulges in his clothing. The encounter took place during the afternoon on a city street, rather than in an unusual or desolate setting that might put the officers in particular fear of danger. Nor did the investigating officers indicate that there was any need to protect innocent bystanders from possible harm. Moreover, appellant was confronted by two officers; this was not a situation where an immediate frisk would be justified to maintain the status quo between suspects and easily overwhelmed patrolmen.

In light of the foregoing, we conclude that although the police justifiably stopped appellant, the immediate frisk of his person and search of his bag were improper. We are not holding that the police must always question a suspect before frisking him; we merely conclude that based on the particular facts of this case, the police should have attempted to elicit some clarifying information from appellant before frisking him and searching his closed bag.

We are mindful that courts should not indulge in unrealistic second-guessing, and that “the fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, in itself, render [a] search unreasonable.” U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 1576, 84 L.Ed.2d 605 (1985) (quoting Cady v. Dom-browski, 413 U.S. 433, 447, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973)). However, as Justice Rehnquist points out in Sharpe, “[t]he question is not simply whether some alternative was available, but whether the police acted unreasonably in failing to recognize or pursue it.” Id., 105 S.Ct. at 1576. In the instant case, where there was a lack of specific and articulable facts indicating that appellant was armed and dangerous, the use of even minimal investigative questioning would have enabled the police to evaluate whether appellant was the individual they were looking for and whether he should be frisked. The use and results of such investigative questioning have consistently aided our courts in justifying Terry stop and frisk procedures or finding probable cause. See Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111; Commonwealth v. Otto, 343 Pa.Superior Ct. 457, 495 A.2d 554; Commonwealth v. Sheridan, supra; Commonwealth v. LeSeuer, 252 Pa.Super. 498, 382 A.2d 127 (1977). Furthermore, as this court recently stated “[i]n today’s complex society police are ‘charged with the protection of constitutional rights, the maintenance of order, [and other community caretaking functions].’ ” Commonwealth v. Rehmeyer, 349 Pa.Superior Ct. 176, 183, 502 A.2d 1332, 1336 (1985) (quoting La Fave, Street Encounters and the Constitution; Terry, Sibron, Peters and Beyond, 67 Michigan L.Rev. 40, 61-62 (1968)). Selecting the best means to achieve these goals is often difficult. As Justice Harlan stated in his concurrence to Terry v. Ohio: “[t]here is no reason why an officer rightfully but forcefully confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.” Terry v. Ohio, supra, 392 U.S. at 36, 88 S.Ct. at 1887 (HARLAN, J., concurring). However, the majority stated:

[in assessing] the reasonableness of a particular search or seizure in light of the particular circumstances ... it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate?

Id. at 21-22, 88 S.Ct. at 1880. In the instant case, reasonable caution applies not only to the need of the officers to protect themselves, but also to the degree of certainty that appellant was the perpetrator and that he was armed and dangerous. Given “our own Supreme Court’s expressed policy ‘of scrupulously adhering to the narrow scope of the \Terry ] exception,’ ” Commonwealth v. Cavalieri, supra, 336 Pa.Superior Ct. at 260-61, 485 A.2d at 794 (quoting Commonwealth v. Lovette, 498 Pa. 665, 676, 450 A.2d 975, 980 (1982)), and considering the numerous uncertainties inherent in appellant’s encounter with the police, some intermediate investigatory response would have been reasonable and proper in developing a level of suspicion sufficient to justify the search of appellant.

For the foregoing reasons, we vacate the judgment of sentence and remand for a new trial.

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

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent. I would affirm on the opinion of Judge Hirsh of the trial court.

      . The record contains no evidence of any communication between appellant and the investigating officers between the time he was stopped and the time he was patted down. The record is explicit regarding the lack of investigative questioning subsequent to the pat-down:
      Q. And when you discovered the gun did [appellant] offer you an explanation what he was doing with it at the time or subsequently?
      A. No, ma’am.
      Q. No, he did not say anything to you whatsoever?
      A. No, I didn’t ask him any questions.

        N.T. April 19, 1985 at 7.

      . Later that evening, the complainant identified another black male wearing a gray sweatsuit as one of the perpetrators. N.T. July 13, 1984 at 9-10.

      . The lower court’s opinion upholding the denial of the motion to suppress states that the police responded to a "flash radio information,” a higher-priority transmission than a regular radio call. Lower Court Opinion at 2. This assertion is unsupported by the record. See also Brief for Appellee at 2. A flash information is based on a report from the initial officers to investigate the scene of a crime and is broadcast to other police units in the district. Despite the urgency connoted by its title, a flash information is of lesser priority than a city-wide “J-band transmission,” such as the broadcast that served as the source of information for the arresting officer in Commonwealth v. Prengte, supra, 293 Pa.Superior Ct. at 66 n. 2, 70 n. 5, 431 A.2d at 993 n. 2, 995 n. 5.

      . Both the brief for appellee and the Lower Court Opinion state that there was no one else in the vicinity of the encounter who fit the description supplied by the complainant. Brief for Appellee at 4; Lower Court Opinion at 5. There is no evidence in the record to support this assertion.