author: HOFFMAN, Judge:

text:
    542 A.2d 1015
    COMMONWEALTH of Pennsylvania, Appellant, v. William C. PETH.
    Superior Court of Pennsylvania.
    Submitted March 17, 1988.
    Filed May 18, 1988.

      Lorinda L. Hinch, Assistant District Attorney, Mercer, for Com., appellant.
    Christopher J. St. John, Assistant Public Defender, Greenville, for appellee.
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the order below granting appellee’s motion to suppress statements he made to the police. In granting appellee’s motion, the suppression court expressly relied upon our recent decision in Commonwealth v. Bruder, 365 Pa.Super. 106, 528 A.2d 1385 (1987). Appellant, the Commonwealth, contends that the suppression court erred in granting appellee’s motion, and urges us not to follow Bruder. For the reasons that follow, we affirm the order of the suppression court.

On April 22,1987, appellee was arrested for driving under the influence of alcohol. See 75 Pa.C.S.A. § 3731(a)(1). Prior to trial, appellee filed a motion to suppress statements that he made to police as well as the results of an “ABC” field sobriety test. On September 9, 1987, a hearing was held on this motion. Thereafter, the suppression court issued its findings of fact and conclusions of law, and entered an order granting appellee’s motion in part. The Commonwealth timely appealed from the suppression order.

We begin with our standard of review. “[W]here the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.” Commonwealth v. Hamlin, 503 Pa. 210, 216, 469 A.2d 137, 139 (1983) (plurality opinion). See also Commonwealth v. James, 506 Pa. 526, 532-33, 486 A.2d 376, 379 (1985). Moreover, the reviewing court is “bound by the findings of a suppression court if those findings are supported by the record.” Commonwealth v. James, supra, 506 Pa. at 533, 486 A.2d at 379 (citations omitted).

The Commonwealth does not dispute the suppression court’s fact-findings. The relevant facts were summarized by the suppression court as follows:

(1) At approximately 2:55 A.M., the defendant’s vehicle was stopped and he was subsequently placed under arrest for driving under the influence;
(2) Immediately prior to the arrest, he was advised of his Miranda rights and stated that he did not wish to make any statements;
(3) Subsequent to the stop of the defendant’s vehicle and prior to the giving of the Miranda warnings, the defendant was asked if he had anything to drink, [and] he was administered field sobriety tests, included among them was the “A-B-C Test”, [to] which the defendant first responded [that] he didn’t know his A-N-Cs but then within seconds began to recite the alphabet____

Trial Court Opinion, September 9, 1987, at 1-2. The court ruled that both appellee’s response to the officer’s question whether he had been drinking, and his recitation of the alphabet (the “ABC test”), were inadmissible, and thus granted appellee’s motion to the extent that it sought to suppress these statements. Id. at 5.

In ordering the suppression of the statements, the suppression court relied on this Court’s opinion in Commonwealth v. Bruder, 365 Pa.Super. 106, 528 A.2d 1385 (1987). In Bruder, the accused’s car was stopped by a police officer, and he was asked for his license, registration, and insurance card. Id., 365 Pa.Superior Ct. at 110, 528 A.2d at 1387. After complying with this request, the accused was asked, inter alia, whether he had been drinking. Id. He was then asked to recite the alphabet. Id. Prior to these inquiries, the accused had not been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Bruder court held that (1) Bruder’s response to the officer’s question whether he had been drinking “should have been excluded as a statement made during custodial interrogation without the benefit of Miranda warnings”, and (2) Bruder’s recitation of the alphabet was “essentially communicative in nature” and therefore should have been excluded because it too was elicited during custodial interrogation and before Miranda warnings were given. Id. 365 Pa.Super. at 112, 113-14, 528 A.2d at 1388, 1388.

The Commonwealth does not dispute that Bruder is factually indistinguishable from the case at bar. The Commonwealth nevertheless argues that Bruder was wrongly decided. More specifically, the Commonwealth maintains that

the Bruder court erred in concluding that: 1) the roadside questioning of a defendant subsequent to the stop of his vehicle but prior to his arrest constitutes custodial interrogation for which Miranda warnings must be given; and 2) the performance of the A-B-C test is evidence of a testimonial nature for which Miranda warnings are required.

Brief for Appellant at 8. The Commonwealth therefore urges us not to follow either of the holdings of Bruder. We decline to do so for the following reasons.

Preliminarily, we note that “[u]ntil a decision of the superior court is overruled by the supreme court, that decision is the law of this Commonwealth.” Baker v. Aetna Cas. & Sur. Co., 309 Pa.Super. 81, 92, 454 A.2d 1092, 1098 (1982), overruled on other grounds, Antanovich v. Allstate Ins. Co., 320 Pa.Super. 322, 467 A.2d 345 (1983) (en banc). See also Yudacufski v. Commonwealth, Dept. of Transp., 499 Pa. 605, 612, 454 A.2d 923, 926 (1982). Accord County of Armstrong v. Workmen’s Comp. Appeal Bd., 81 Pa.Commw. 474, 478, 473 A.2d 755, 757 (1984) (Commonwealth Court is bound by stare decisis to follow own decisions until they are either overruled by Supreme Court or compelling circumstances persuade otherwise). This rule, of course, is not absolute; thus, in “compelling circumstances”, a court may decide not to follow existing precedent. Yudacufski v. Commonwealth, Dept. of Transp., supra. As our Supreme Court noted in Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976):

[W]hile the principle of stare decisis is a wise course of judicial action, it is not an ironclad rule and is to be controlling only where applicable. So that, when it is determined that a past precedent is no longer in accord with modern realities, and the rationale justifying the old rule no longer finds support, then the pledge of certainty gives way “to new conditions and to the persuasion of superior reasoning.” Griffith v. United Airlines, 416 Pa. 1, 23, 203 A.2d 796, 806 (1964)....

Id., 469 Pa. at 282, 365 A.2d at 152.

Here, the Commonwealth does not allege that, since the filing of Bruder, circumstances have changed so drastically that the reasoning underpinning the decision has been eroded, and thus the case “is no longer in accordance with modem realities.” Nor does the Commonwealth suggest any other “compelling circumstance” that would warrant abandoning the approach set forth in Bruder. Instead, the Commonwealth merely argues that (1) with regard to the question whether appellee was in custody, we should follow the United States Supreme Court’s conclusion in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), and (2) we should conclude that evidence derived from an “ABC” test is demonstrative evidence, not testimonial evidence, and thus Miranda warnings need not be given before administering such a test. These precise arguments were considered and rejected by the Bruder Court. See Commonwealth v. Bruder, supra, 365 Pa.Super. at 111, 528 A.2d at 1387 (discussing Berkemer)-, id., 365 Pa.Superior Ct. at 113-14, 528 A.2d at 1388 (discussing whether recitation of alphabet should be viewed as testimonial evidence as distinguished from demonstrative or physical evidence). Because the Commonwealth has failed to show in what respect the approach in Bruder has lost its vitality, or any other compelling circumstance that might undermine Bruder’s precedential value, we decline its invitation not to follow that decision.

Moreover, we note that, even if we were to consider the Commonwealth’s arguments regarding custody and the “ABC” test anew, we would conclude that Bruder was properly decided. First, with regard to determining when an accused is in custody for Miranda purposes, the Bruder Court correctly recognized that Berkemer v. McCarty “refused to adopt a bright line test”, and thus “we are afforded a measure of flexibility in deciding exactly when a suspect has been taken into custody.” Commonwealth v. Bruder, 365 Pa.Super. at 111, 528 A.2d at 1387 (citing Berkemer v. McCarty, 468 U.S. at 441, 104 S.Ct. at 3151). In exercising this flexibility, the Bruder Court employed the test for custodial interrogation that was approved by our Supreme Court in Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980). Under Meyer, “the test for custodial interrogation is whether the individual being interrogated reasonably believes his freedom of action is being restricted.” Id., 488 Pa. at 307, 412 A.2d at 521 (alternative holding) (quoting Commonwealth v. Brown, 473 Pa. 562, 570, 375 A.2d 1260, 1264 (1977)). A close examination of Meyer reveals that our Supreme Court recognized that the Pennsylvania test, formulated above, provided greater protection than did the then-existing United States Supreme Court definition of custodial interrogation. Id., 488 Pa. at 306, 412 A.2d at 521. Accordingly, the fact that the conclusions in Bruder and Berkemer are different reflects, at best, the reality that Pennsylvania courts have consciously defined custodial interrogation differently than federal courts. The Superior Court, of course, is “powerless to alter the decisional law of our supreme court.” See De-Francesco v. Western Penna. Water Co., 329 Pa.Super. 508, 520, 478 A.2d 1295, 1301 (1984) (en banc), and thus Bruder did no more than apply the law it was required to apply under state supreme court precedent.

Second, Bruder’s conclusion that “the recitation of the alphabet [is] essentially communicative in nature”, 365 Pa. Super, at 114, 528 A.2d at 1388, is supported by ample authority. For example, in Commonwealth v. Fernandez, 333 Pa.Super. 279, 482 A.2d 567 (1984), we noted that,

The Fifth Amendment has consistently been held to exclude only evidence which is testimonial in nature. United States v. Lamb, 575 F.2d 1310 (10th Cir.), cert. denied sub nom. Clary v. United States, 439 U.S. 854, 99 S.Ct. 165, 58 L.Ed.2d 160 (1978). Testimonial evidence is communicative evidence as distinguished from demonstrative or physical evidence. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (held, extraction of blood is demonstrative physical evidence).

Id., 333 Pa.Superior Ct. at 284, 482 A.2d at 569 (emphasis supplied). In determining whether evidence is “communicative”, we are guided by the following analysis in Schmerber:

[T]he [fifth amendment] privilege has never been given the full scope which the values it helps to protect suggest. History and a long line of authorities in lower courts have consistently limited its protections to situations in which the State seeks to submerge those values by obtaining the evidence against the accused through “the cruel, simple expedient of compelling it from his own mouth.”...
It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers____ On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling “communications” or “testimony,” but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it.

384 U.S. at 762-64, 86 S.Ct. at 831-32 (citation and footnote omitted) (emphases supplied). Schmerber thus teaches that an accused may indeed be required to speak, without that speech being considered a “communication” for fifth amendment purposes, but only for purposes of identification. The limited nature of this exception was emphasized in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967):

We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance____ Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a “testimonial” nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt.

Id. at 222-23, 87 S.Ct. at 1930 (emphasis supplied). See also Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967) (“A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [fifth amendment] protection.”). See generally W. LaFave & J. Israel, Criminal Procedure § 7.2(a), (b) (1984).

In light of these authorities, it is clear to us, as it was to the Bruder Court, that the recitation of the alphabet is “essentially communicative” in nature. The Commonwealth does not argue that the test is designed to identify the accused; indeed, it is difficult to imagine how the test helps to identify the accused at all. Instead, it is designed to gather incriminating evidence against the accused by having the accused “speak his [or her] guilt”, either through the manner in which the test is performed (for example, if the speech was slurred), or the accused’s ability to perform it (for example, if the accused cannot recite the whole alphabet). Because requiring an accused to perform the “ABC” test produces evidence that is testimonial in nature, it follows that such evidence cannot be admitted unless it was obtained in compliance with Miranda.

For the foregoing reasons, we affirm the suppression order below.

Order affirmed.

      . The “ABC” field sobriety test is designed to determine whether a suspect is intoxicated by testing his or her ability to recite the alphabet.

      . We note that the Commonwealth, in its brief, has certified that “the suppression order which is the subject of this appeal substantially handicaps its prosecution.” Brief for Appellant at 1. Accordingly, the appeal is properly before this Court. See Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386-87 (1985).

      . Appellee also moved to suppress statements that he made (1) while being taken to the police cruiser, (2) while in the police cruiser on his way to the police station, and (3) while at the police station. The court ruled that these statements were not the product of custodial interrogation, but were volunteered by appellee. Trial Court Opinion, September 9, 1987, at 5-6. Appellee has not challenged this ruling.

      . The evidence introduced at the suppression hearing established that appellee here, like the driver in Bruder, was stopped by a police officer and asked to produce his license and registration. N.T. September 9, 1987, at 7. Appellee complied with this direction, and was then asked whether he had been drinking. Id. at 7-8. A second officer then asked appellee to perform certain field sobriety tests, including the “ABC test”, which involves recitation of the alphabet. Id. at 8, 22. As in Bruder, appellee was not advised of his Miranda rights prior to these inquiries. Id. at 8, 23.
      We note that, at least with regard to the degree of suspicion possessed by the arresting officer prior to stopping the motorist, the instant case is unlike Bruder. In Bruder, the arresting officer saw the accused driving erratically, and witnessed him passing a red light. 365 Pa.Super. at 108, 528 A.2d at 1386. In the instant case, by contrast, the only suspicious circumstance observed by the officer prior to stopping appellee was the fact that appellee turned off his headlights. N.T. September 9, 1987 at 6.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    542 A.2d 1019
    Lee WERTZ, Jr. and Fran S. Wertz, His Wife, Appellants, v. Ernest KEPHART, Jr., Robin K. Miller and Joy Brubaker.
    Superior Court of Pennsylvania.
    Argued March 16, 1988.
    Filed May 25, 1988.

      Frederick B. Gieg, Altoona, for appellants.
    Michael W. Chorazy, Hollidaysburg, for Miller and Brubaker, appellees.
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   TAMILIA, Judge:

On the evening of November 7, 1980, defendant Kephart and appellee Brubaker were at a tavern called Mr. Bill’s drinking with some friends. After about an hour at Mr. Bill’s, Brubaker and Kephart decided to go to a movie, following which Brubaker called her friend, Robin Miller, who was at John Volovski’s apartment, and asked if they could borrow her car even though she did not have a driver’s license. Miller apparently asked if Kephart had a license and Brubaker said he did. The two then walked to John Volovski’s apartment and stayed approximately 10-15 minutes while they picked up the keys. Miller’s only request was they be back by 11:30 p.m. so she could take John to work. After leaving the apartment at approximately 9:30 p.m., Brubaker gave Kephart the keys and he drove the car towards a movie theatre. Despite the fact it was raining that night, Kephart drove very fast and recklessly— so recklessly that Brubaker became frightened and demanded that he stop the car and get out. He finally stopped but instead of him getting out, Brubaker got out and Kephart drove around her, yelling at her to get back in the car and coming close to hitting her with the car. It was about 9:50 p.m. when she ran into a supermarket to call for someone to come pick her up and Kephart drove away. Brubaker also called Miller to tell her what happened and Miller called the police. Kephart drove the car all night and had several beers during that time. The next morning he went to a cafe and had two or three more drafts within 15 minutes. At 3:30 that afternoon Kephart smashed into appellants’ car causing it to sail through the air and flip over on its roof, resulting in severe injuries to appellants. Kephart then sped away. A couple, the Schweitzers, were travelling behind Kephart immediately prior to the collision and had noticed his erratic driving. After the collision the Schweitzers decided to follow Kephart even though he was speeding. Eventually both vehicles pulled off the road and Mr. Schweitzer pulled his car right in front of Kephart’s so they were facing each other, the cars hood to hood. After observing Kephart for approximately 20 seconds, the Schweitzers pulled behind Kephart’s car and got the license number. Mr. Schweitzer called the police while Kephart drove away.

At 9:30 that evening, Trooper Stanek and another officer went to Kephart’s residence to question him about the hit and run. After ten minutes of knocking and calling out to him, Kephart opened the door. The officers identified themselves and advised Kephart of his rights. Kephart immediately became belligerent and denied any involvement in the accident. He ordered the officers to leave unless they had a warrant; since they did not have a warrant they left.

Appellants filed suit against Kephart, Miller, Brubaker and two others who received a grant of voluntary nonsuit. The jury returned a verdict for appellants, finding Kephart and appellees Brubaker and Miller negligent. However, they attributed all the causal negligence to Kephart finding him 100% liable. Appellants filed a motion for post-trial relief which was denied. They appealed to this Court and we quashed sua sponte since it was interlocutory as the damages issue had not been resolved. Now that a verdict has been entered as to damages, appellants again appeal to this Court. For the reasons that follow, we reverse.

Appellant raises six issues on appeal: 1) Whether the trial court erred by allowing the telephonic deposition of John Yolovski to be taken by appellees two days prior to trial when Volovski had been available for deposition from the date of the accident until January 1985; 2) whether the trial court erred in bifurcating the trial on the first day of trial thereby requiring two separate juries to hear the issues of liability and damages; 3) whether the trial court erred in not allowing testimony regarding Kephart’s condition at the time appellees entrusted the keys to him; 4) whether the court erred in ruling appellants could not introduce testimony regarding where Kephart was and how much he drank between the time he received the keys and the accident; 5) whether defense counsel waived the ruling of no intoxication testimony by putting sobriety at issue; and 6) whether the trial court erred in refusing all of appellants’ points for charge.

Appellants claim the allowance and admission of Volovski’s deposition prejudiced them because they had not anticipated his testimony and could not prepare evidence to discredit it. They also claim the telephonic deposition deprived them of the person to person confrontation with this witness which is necessary to properly pursue cross-examination. Since the deposition occurred so close to trial, appellants could not conduct any other type of discovery with this witness. Thus, appellants claim the trial court abused its discretion by authorizing this discovery.

Initially, we recognize the rules do not establish a timetable for discovery and these matters come within the trial court’s discretion. Lombardo v. DeMarco, 350 Pa.Super. 490, 504 A.2d 1256 (1985). It is also within the trial court’s discretion to admit or exclude a deposition during trial and we will not disturb this decision absent an abuse of discretion. Egelkamp v. Egelkamp, 362 Pa.Super. 269, 524 A.2d 501 (1987).

Any party seeking to take the deposition of a person outside the Commonwealth must give reasonable notice in writing to all parties. 42 Pa.C.S. § 5325(a)(1). We cannot find any evidence on the record showing notice was given in writing to appellants. The record does show the trial court issued upon appellants a rule to show cause why the deposition should not be allowed. The rule was issued May 28, 1985 and was returnable on May 29, 1985. The court, on May 29, ordered the deposition taken no later than May 31, 1985. Trial commenced June 3, 1985. We find this was an abuse of the trial court’s discretion.

The trial court, as overseer of discovery matters, is to ensure adequate and prompt discovery. Lombardo, supra. Appellees, in their motion for leave of court to take Volovski’s deposition, admit Volovski was available until January, 1985 when he joined the military. Their contention is they intended to take the deposition in April or May, 1985 when Volovski would return home for a visit. When Volovski’s visit turned out to be very short (36 hours), their plans to take the deposition were thwarted. Thus, the motion, six days prior to trial, to take Volovski’s deposition via telephone. The explanation given by appellees for the delay in taking this deposition is unacceptable to this Court. Appellants filed a summons which was served upon appellees on March 13, 1981; the complaint was filed December 23,1981. Appellees had no less than four years after notice of the lawsuit to take Volovski’s deposition. Allowing them to depose a witness three days prior to trial was an abuse of discretion on the trial court’s part—especially when we note May 31, 1985 fell on a Friday and June 3, 1985 was the following Monday. Thus, appellants did not even have two full working days in which to prepare evidence to discredit or counter Volovski’s deposition.

Appellants next claim the trial court erred in bifurcating the trial on oral motion by appellees the morning of trial without prior notice to appellants. The court claims to have bifurcated the trial on the issues of liability and damages when “it became abundantly clear that testimony to drinking and intoxication which might be presented during the course of a consolidated trial would not be pertinent to the question of liability and threatened serious prejudice to the defendants.” Opinion, 10/3/86, p. 3. Obviously, the court was wrong in believing the liability issue would not hinge upon any testimony regarding Kephart’s intoxication before, during and after the collision. The liability of appellees is determined almost entirely by such testimony. While the trial court does have discretion to order a separate trial on the issues of liability and damages in order to avoid prejudice, Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987); Pa.R.C.P. 213(b), the decision to bifurcate should be made only after careful consideration. Stevenson v. General Motors Corporation, 513 Pa. 411, 521 A.2d 413 (1987).

It [bifurcation] should be carefully and cautiously applied and be utilized only in a case and at a juncture where informed judgment impels the court to conclude that application of the rule will manifestly promote convenience and/or actually avoid prejudice. Piecemeal litigation is not to be encouraged. Particularly is this so in the field of personal injury litigation, where the issues of liability and damages are generally interwoven and the evidence bearing upon the respective issues is commingled and overlapping. Brown v. General Motors Corp., 67 Wash.2d 278, 282, 407 P.2d 461, 464 (1965) (citations omitted).

Id., 513 Pa. at 422, 521 A.2d at 419. (Emphasis added.)

Therefore, we find bifurcation was not necessary to avoid prejudice to appellees and Kephart; in fact, the testimony the trial court sought to avoid during the liability phase of trial is pertinent in determining the liability among appellees and Kephart.

Third, appellants claim the trial court denied them the opportunity to prove negligent entrustment against appellees by not allowing testimony regarding Kephart’s intoxication at the time he received the keys from appellees. While appellants wanted to bring this testimony in to prove the elements of negligent entrustment, appellees claim it would not be enough for appellants to show Kephart was intoxicated when he picked up the keys; they must show the entrustment of the keys was a proximate cause of the accident.

The trial court decided, after an offer of proof, not to allow testimony regarding Kephart’s intoxication when he received the keys. In his Opinion the judge states the testimony would be irrelevant since the keys were given to Kephart 17 hours before the collision with appellants. We understand the court’s concern with the prejudicial and inflammatory potential that testimony about a defendant’s intoxication has in a jury trial. However, the intoxication testimony was a vital part of appellants’ cause of action against appellees. This ruling effectively denied appellants the opportunity to prove their claim of negligent entrustment.

The Commonwealth Court most recently decided a case involving the issue of negligent entrustment in Robare v. Pekarcik, 109 Pa.Commw. 87, 530 A.2d 534 (1987). The court stated the required proof for the negligent entrustment claim was that the driver was intoxicated at the time the keys were given to him. The court supports its position by citing three cases which actually set forth a basis of recovery under negligent entrustment, in particular Gibson v. Bruner, 406 Pa. 315, 178 A.2d 145 (1961).

The question presented in Gibson is identical to ours: Did the vehicle owner give the driver permission to take and operate his vehicle with knowledge the driver was intoxicated and not in a condition to safely operate the vehicle? The court said if the owner had this knowledge, the owner was liable. The major factual difference between Gibson and our case is the time of the accident. In Gibson, the accident occurred two hours and forty minutes after the driver took the truck. In our case, Kephart crashed into appellants’ car approximately 18 hours after Miller and Brubaker gave him the keys to Miller’s car. In Gibson, the court absolved the owner of liability because, even though the driver was intoxicated at the time of the accident, it was not shown that the driver was intoxicated when the owner entrusted his vehicle. It was further found the driver was only given permission to drive the truck home. Instead, he went somewhere else and continued drinking. “Such conduct constituted a substantial deviation from the authorized and permitted use and the record is clear that when the accident occurred, [driver] was clearly on a frolic of his own.” Gibson, 178 A.2d at 148. Despite this language, however, the court indicates liability on an entruster is based solely upon knowledge at the time of the entrustment:

Under such uncontradicted facts Bernard Bruner would not be liable for his son’s transgressions unless he knew when he permitted Edward Bruner to take the truck that, by reason of intoxication, he was unfit to drive the truck or, by reason of such condition, he would or might disregard the instructions to take the truck home and instead take the truck elsewhere and continue drinking. * * * * * *
The burden was upon Mrs. Gibson, seeking to impose liability on Bernard Bruner, to prove that when Edward Bruner left Kline’s home he was not in a condition to operate a motor vehicle. This she failed to prove. Mrs. Gibson relied for such proof upon Bernard Bruner and his testimony falls far short of proving his son was intoxicated at the time permission to operate the truck was given. Had she sought sueh proof from Kline or the bartenders and patrons of the taverns in Butler she might have sustained her burden of proof.

Gibson, 178 A.2d at 148. (Emphasis in original).

If appellees knew Kephart’s condition would or might cause him to disregard the instructions that the car should be returned by 11:30 p.m., appellees are not absolved of liability by claiming Kephart “was clearly on a frolic of his own.” For appellees to know whether Kephart would or might disregard the instructions, they had to know what his condition was when they entrusted him with the vehicle.

In a case just recently decided by this Court, the question arose whether a vehicle owner could be convicted of violating 75 Pa.C.S. § 1575(a) where the owner did not have knowledge that the driver would operate his car in a manner disregardful of the Motor Vehicle Code. Commonwealth v. Tharp, 373 Pa.Super. 285, 541 A.2d 14 (1988). Tharp, the vehicle owner, had given a co-worker his permission to drive them to a party after leaving a bar where they had been drinking since Tharp’s eyes were bothering him. The keys were left in the ignition while the two went into the party. About 3:30 a.m. Tharp went out to his car and fell asleep in the front passenger seat. While he was sleeping, his co-worker came out and drove the car into a bridge. The Commonwealth prosecuted Tharp for permitting a violation of the Motor Vehicle Code since he had given his co-worker permission to drive the car. Tharp claimed under the statute he was required to have knowledge his car would be driven illegally. We agreed:

[A] vehicle owner giving permission for another to drive his vehicle is entitled to presume that that driver will obey the law. By extension, then, the owner enjoys a presumption that his giving of permission is lawful and the Commonwealth must prove beyond a reasonable doubt that this was not so. Only when the owner, at the time he gives permission, or, if present during the permitted operation of his vehicle by another, knows or has reason to know or suspect that the driver will not obey the law is this presumption rebutted.

Id.

Appellants need to prove “knowledge” on the part of appellees that Kephart was incompetent or unfit to drive. If Kephart was intoxicated then appellants can meet this burden of proof. If and when appellants prove Kephart was intoxicated when he received the keys from appellees and appellees knew what Kephart’s condition was, the question of causation should be one for the jury. Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A.2d 771 (1961).

Fourth, appellants claim the trial court erred in not allowing testimony regarding Kephart’s drinking between the time of the entrustment and the collision. Appellants wanted-to introduce this testimony to prove causation. Based upon the witnesses appellants had, they believed they could prove negligent entrustment by appellees. The court, however, disallowed all of this testimony claiming appellants could not prove causation, i.e. the accident occurred 18 hours after the entrustment, thus it was too remote. Again, causation is an issue for the jury once they have heard all the relevant testimony. Id. Just as we have decided appellants should be allowed to offer testimony regarding Kephart’s condition at the time of entrustment, so should appellants be allowed to introduce evidence of Kephart’s drinking activities and whereabouts after the entrustment. It is once again a jury question whether causation flowed from the initial entrustment and Kephart’s condition at that time, or whether intervening conduct superseded the initial consent.

The last two issues raised by appellants will be resolved at the new trial. Therefore, we need not address these issues.

We reverse the Order denying appellants’ motion for new trial and remand the matter for a new trial consistent with this Opinion.

Order reversed; case remanded for new trial; jurisdiction relinquished.

POPOVICH, J., concurs in the result.

      . Actually, the court allowed the deposition to be taken three days prior to trial. See, infra.

      . Although the trial court Opinion states the accident occurred 17 hours after entrustment of the keys, the testimony indicates Kephart received the keys at 9:30 p.m. on November 7, 1980 and the accident occurred at 3:30 p.m. on November 8, thus making an 18-hour interval.

      . § 1575 Permitting violation of title
      (a) General rule—
      No person shall authorize or permit a motor vehicle owned by him or under his control to be driven in violation of any of the provisions of this title.

      . Appellants also claimed the court erred by not allowing testimony concerning Kephart’s parole status. However, this was not argued in the brief, therefore, it is waived. Commonwealth v. Batch, 328 Pa.Super. 71, 476 A.2d 458 (1984).


author: ROWLEY, Judge: McEWEN, Judge,

text:
    542 A.2d 1025
    COMMONWEALTH of Pennsylvania, Appellant, v. Paul O’DONNELL.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1987.
    Filed June 1, 1988.

      Ernest D. Preate, Jr., District Attorney, Scranton, for Com., appellant.
    James J. Walker, Carbondale, and Robert A. Mazzoni, Scranton, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA and POPOVICH, JJ.
   ROWLEY, Judge:

This is an appeal, taken by the Commonwealth, from an order granting appellee, Paul O’Donnell’s Petition for Writ of Habeas Corpus, and barring any further prosecution on the grounds that the statute of limitations has expired. En banc consideration of this appeal was granted along with en banc consideration of Commonwealth v. Harvey, 374 Pa. Super. 289, 542 A.2d 1027 (1988) No. 2142 Philadelphia 1986, filed contemporaneously with this opinion, because both cases involved an identical issue concerning the statute of limitations provided in 42 Pa.C.S. § 5552(b). For the reasons set forth below, we reverse the trial court’s order.

Appellee O’Donnell was the business manager of the Mid-Valley Long Term Care Facility operated by Lackawanna County. In his capacity as business manager, he caused to have cashed for his personal use, rather than deposited appropriately, two checks totalling nearly $14,000. The first of these checks was cashed in June, 1980. The second was cashed in June, 1981. In August, 1981, O’Donnell voluntarily resigned his position as business manager of the facility. At some time after July, 1986, O’Donnell’s actions were first discovered, and on December 30, 1986, a criminal complaint was filed against O’Donnell charging him with two counts of Theft by Failure to Make Required Disposition and two counts of conspiracy.

After O’Donnell was bound over for court on all the charges following his preliminary hearing, O’Donnell filed a Petition for Writ of Habeas Corpus, alleging that the prosecution was barred by the applicable statute of limitations, 42 Pa.C.S. § 5552. The trial court granted this petition on the basis of Commonwealth v. Baysore, 349 Pa.Super. 345, 503 A.2d 33 (1986). The Commonwealth filed the instant appeal from that order alleging that 42 Pa.C.S. § 5552(b) as amended, Act of May 13, 1982, P.L. 417, No. 122 § 1 (hereafter, Act 122) is the relevant statute of limitations, and as applied to the case sub judice, does not bar the present prosecution. We affirm.

The parties do not dispute that § 5552 provides the statute of limitations applicable to this case. However, they do not agree as to whether the version of § 5552 which was in effect in 1980 and 1981 when the crimes were committed is applicable, or whether the amendment by Act 122 in 1982 is the applicable version. Prior to July 12, 1982, § 5552(a) provided that the statute of limitations for theft by failure to make required disposition was two years. Section 5552(c) provided two exceptions to this two year period. First, if fraud or breach of fiduciary obligation was a material element of the crime, then the prosecution could be commenced within one year after discovery of the offense provided that this did not extend the period of limitations more than three years beyond the period otherwise applicable. 42 Pa.C.S. § 5552(c)(1). Secondly, if the offense was committed by a public officer or employee in the course of or in connection with his or her office or employment at the time when he or she was an officer or employee, the prosecution could be commenced within five years after the person left the office or employment provided that this did not extend the period of limitations by more than eight years beyond the period otherwise applicable. 42 Pa.C.S. § 5552(c)(2). Act 122 amended § 5552 so that as of July 12, 1982, any prosecution for, among other things, theft by failure to make required disposition, had to be commenced within five years of commission of the crime. Sections 5552(c)(1) and (2) were unaffected by Act 122 and are still in effect.

The Commonwealth argues that because O’Donnell was a public employee and committed these crimes in connection with his employment and while he was an employee, the exception in § 5552(c)(2) is applicable. Therefore, the Commonwealth could have commenced the prosecution within five years of August, 1981, when he resigned his position with the County. Under this analysis, because the period of limitations had not yet expired when Act 122 became effective in July, 1982, the. Commonwealth asserts that Act 122 should apply here.

The Commonwealth also argues that § 5552(c)(1) is applicable here because O’Donnell breached a fiduciary obligation when, as business manager of the County nursing home, he failed properly to handle the money, and because fraud is a possible element of the crime of theft by failure to make required disposition. At the time the crime occurred, under § 5552(c)(1), the prosecution could have been commenced up to three years beyond the ordinary two year period of limitations, or in other words, five years after the crime was committed. Because within this five-year period for both crimes, Act 122 became effective, the Commonwealth argues that Act 122 is applicable.

If Act 122 is not applicable, as O’Donnell argues, based upon Bayshore because the crimes here were committed prior to the effective date of Act 122, then the prosecution was time-barred when the criminal complaint was filed in this case regardless of whether § 5552(c)(1) or § 5552(c)(2) is used to extend the period of limitations. However, if Act 122 is applicable, then, under § 5552(c)(1), the prosecution could be commenced up until July, 1987, i.e., one year after discovery of the crime. Since the Complaint was filed in December, 1986, the complaint would be timely.

In Commonwealth v. Harvey, 374 Pa.Super. 289, 542 A.2d 1027, (1988) (en banc), we overruled Baysore and held that Act 122 applies prospectively to any prosecution commenced after its effective date on a cause of action which has not already expired regardless of whether the crime was committed before or after the effective date of Act 122. Inasmuch as the exceptions to the statute of limitations contained in § 5552(c)(1) and (2) applied to extend the period of limitations in effect when the crimes were committed to a date beyond the effective date of Act 122, Act 122 is applicable here. Because the prosecution was commenced within eight years of the commission of the crimes, the prosecution was timely under Act 122 and § 5552(c)(1).

Order reversed.

POPOVICH, J., concurs in the result.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting:

I dissent for the reasons set forth in my Dissenting Opinion in Commonwealth v. Harvey, 374 Pa.Super. 289, 542 A.2d 1027 (1988).


author: ROWLEY, Judge: McEWEN, Judge, TAMILI A, Judge,

text:
    542 A.2d 1027
    COMMONWEALTH of Pennsylvania v. Benjamin HARVEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1987.
    Filed June 1, 1988.

      Stanton M. Lacks, Philadelphia, for appellant.
    Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA and POPOVICH, JJ.
   ROWLEY, Judge:

This is an appeal from a judgment of sentence of four to ten years imprisonment imposed following appellant’s conviction by a jury of rape. The primary issue to be resolved is whether the five year statute of limitations for rape, 42 Pa.C.S. § 5552(b), should be applied where the statute of limitations in effect when the crime occurred was a two year period, but where a five year statute of limitations became effective before the two year period expired. We hold that it applies, and we affirm the judgment of sentence.

Between 1976 and July 1981, appellant lived with his girlfriend and the girlfriend’s daughter, the victim herein. On numerous occasions during the period that appellant lived with the victim, and ending in May or July of 1981 when the victim was eleven years old, the appellant had sexual intercourse with the victim. At this time a two-year statute of limitations for rape was in effect, thereby requiring the prosecution to be commenced no later than July, 1983. 42 Pa.C.S. § 5552(a). However, effective July, 1982, before the two year period expired, the period within which a prosecution for rape had to be commenced was lengthened to five years. 42 Pa.C.S. § 5552(b). In May, 1984, after the two-year period had expired, but still within the five year period, the police were first notified of the crime and appellant was charged with rape, statutory rape, corruption of minors, and involuntary deviate sexual intercourse. He was subsequently acquitted by a jury of the involuntary deviate sexual intercourse charge, but found guilty of all the other charges.

Appellant filed timely post-trial motions, and new counsel was appointed to pursue claims of ineffective assistance of trial counsel. Consequently, amended post-trial motions were filed, and an evidentiary hearing on the ineffective assistance of counsel issues was held. Thereafter, the trial court granted an arrest of judgment as to the statutory rape and corruption of minors convictions, but denied the remaining post-trial motions. Following sentencing, appellant brought the instant appeal.

On appeal, appellant argues that the prosecution for rape was barred by the two-year statute of limitations for rape in effect when the rape occurred despite the enactment, after the rape was committed but before the two year statute of limitations expired, of a new five year statute of limitations within which the present action was commenced. Appellant contends that the panel decision in Commonwealth v. Baysore, 349 Pa.Super. 345, 503 A.2d 33 (1986), which held, under facts substantially similar to those in this case, that the five year statute of limitations did not apply, is controlling here. Argument before the court en banc was scheduled on this issue. For the reasons which follow we overrule Baysore and conclude that the five year statute of limitations applies to a crime committed less than two years before the enactment of the five year statute even though the prosecution was not commenced until after the former period of limitation had expired.

In Baysore, as in the present case, a two year statute of limitations was in effect on the date the crime was committed. 42 Pa.C.S. § 5552(a). However, in both cases, before commencement of the prosecution was barred by expiration of the two year period of limitations, the legislature amended the statute of limitations to provide for a five year period of limitations. Act of May 13, 1982, P.L. 417, No. 122 § 1 [current version at 42 Pa.C.S. § 5552(b)] (hereafter, Act 122). This amendment did not state whether it was to be applied retroactively, but simply provided that it was to become effective in 60 days. Act 122 provided in relevant part that “a prosecution for [rape] must be commenced within five years after it is committed.”

The panel in Baysore noted that the statute itself was silent as to its retroactive application. However, the court also observed that in at least one other statute, the legislature had expressly provided for retroactive application by stating this Act “shall take effect immediately and shall be retroactive to____” See: Act of December 20, 1982, P.L. 1409, No. 326, § 404. Relying upon the statutory rule of construction that a statute shall not be given retroactive application unless “clearly and manifestly so intended by the General Assembly,”, 1 Pa.C.S. § 1926, the panel in Baysore held that the legislature did not clearly and manifestly intend for Act 122 to be applied retroactively to crimes occurring before its enactment.

When interpreting a statute, our primary objective is to ascertain and effectuate the intention of the legislature giving full effect to each word of the statute if at all possible. 1 Pa.C.S. §§ 1921(a), 1922(2); Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980); Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 464 A.2d 431 (1983). While we recognize the rule of construction regarding retroactivity set forth in 1 Pa.C.S. § 1926, and relied upon by the panel in Baysore, we find it to be inapplicable to either Baysore or the present case because it is clear from the words of the statute itself that the legislature intended for the new period of limitations to apply to cases such as the present one. Following the analysis of Judge .Hester, expressed in his Concurring Memorandum accompanying the unpublished panel decision in this case, we also conclude that such application is not a retroactive application but a prospective one.

In the present case, the precise terms of the five year statute of limitations are that “a prosecution for [rape] must be commenced within five years after it is committed.” Act 122. Thus, by the express terms of the statute, the action or thing to which the new five year period applies is the commencement of a prosecution. The Act addresses the validity of prosecutions commenced after its effective date and is not directed toward protection of those committing crimes before the effective date of the Act. Because in this case the prosecution had not been commenced when Act 122 became effective, but under the prior statute of limitations, the Commonwealth was not yet barred from beginning the prosecution, Act 122 applied prospectively to extend the period in which the Commonwealth could still commence the prosecution.

This interpretation is in accord with the rule of construction codified in 1 Pa.C.S. § 1975. Section 1975 applies specifically to statutes of limitation, unlike the rule of construction codified at 1 Pa.C.S. § 1926 and relied upon by the court in Baysore. It provides that when a new period of limitations is enacted, and the prior period of limitations has not yet expired, in the absence of language in the statute to the contrary, the period of time accruing under the prior statute of limitations shall be applied to calculation of the new period of limitations. Applying § 1975 to the present case simply means that the time from when the rape occurred in May or July, 1981, until Act 122 became effective in July 1982, shall be included in computing the five year period in which the action had to be commenced. Nowhere does § 1975 suggest that this provision for tacking on time accrued under a prior period of limitations should be considered as a retroactive application of a new statute of limitations. Rather, it applies to all statutes of limitation, regardless of whether they are to be applied retroactively, unless there is express language in the statute making § 1975 inapplicable.

Moreover, our interpretation of Act 122, that it applies prospectively to all prosecutions not yet commenced in which the Commonwealth’s right to commence the prosecution has not yet expired, is further supported by the language of a subsequent amendment to 42 Pa.C.S. § 5552(b). By Act of December 20, 1982, P.L. 1409, No. 326 § 403 (hereafter, Act 326), the legislature provided:

Except as provided in section 404, the amendments to 42 Pa.C.S. Ch. 55 (relating to limitations of time), effected by this act, shall apply only to causes of action which accrue after the effective date of this act. (Emphasis added.)

The language of Act 326 clearly makes that amendment to the statute of limitations applicable not to all prosecutions commenced after its effective date, but only to prosecutions for crimes committed after its effective date. This language demonstrates that the legislature knew how to distinguish between addressing the validity of a prosecution commenced at a particular time, and providing for the protection of crimes committed after a particular time. Had the legislature in Act 122 provided for the protection of those committing crimes after a particular date, then for the Act to be applicable on the facts of the present case would require a retroactive application. However, such is not the case here.

That the legislature has the authority to promulgate a statute of limitations applicable only to the commencement of prosecutions and thereby increase the period during which the prosecution may be commenced after the crime has been committed is beyond cavil. As early as 1881, the Pennsylvania Supreme Court stated:

At the time the Act of 1877 was passed, the defendant was not free from conviction by force of the two years’ limitation of the Act of 1860. He therefore had acquired no right to an acquittal on that ground. Now an act of limitation is an act of grace purely on the part of the legislature. Especially is this the case in the matter of criminal prosecutions. The state makes no contract with criminals, at the time of the passage of an act of limitation, that they shall have immunity from punishment if not prosecuted within the statutory period. Such enactments are a measure of public policy only. They are entirely subject to the mere will of the legislative power, and may be changed or repealed altogether, as that power may see fit to declare. Such being the character of this kind of legislation, we hold that in any case where a right to acquittal has not been absolutely acquired by the completion of the period of limitation, that period is subject to enlargement or repeal without being obnoxious to the constitutional prohibition against ex post facto laws. (Emphasis in original).

Commonwealth v. Duffy, 96 Pa. 506, 514 (1881).

Furthermore, as noted by appellant, this case is distinguishable from those cases in which the prior statute of limitations has run before the new statute of limitations becomes effective. Case law is clear that in those situations, the cause of action has expired, and the new statute

of limitations cannot serve to revive it. See Redenz by Redenz v. Rosenberg, 360 Pa.Super. 430, 520 A.2d 883 (1987); Lewis v. City of Philadelphia, 360 Pa.Super. 412, 520 A.2d 874 (1987); Clark v. Jeter, 358 Pa.Super. 550, 518 A.2d 276 (1986); Maycock v. Gravely Corp., 352 Pa.Super. 421, 508 A.2d 330 (1986); Commonwealth v. Guimento, 341 Pa.Super. 95, 491 A.2d 166 (1985). In the present case, the appellant had not obtained a complete defense of the statute of limitations by the time the new statute of limitations became effective, and the prosecution by the Commonwealth was not yet time-barred. Therefore, the legislature acted within its authority when it extended the period within which the prosecution had to be commenced.

For the reasons set forth in the forgoing opinion, we hold that by its own terms, Act 122 applies prospectively to any prosecution commenced after its effective date on a cause of action which has not already expired regardless of whether the crime for which the prosecution is commenced occurred prior to or after the effective date of the Act. To the extent that Baysore holds that Act 122 does not apply to prosecutions for crimes occurring prior to the effective date of the Act, and to the extent that it holds that application of the Act to prosecutions for crimes occurring prior to the effective date of the Act would be a retroactive application of the Act, Baysore is overruled.

In the present case, therefore, the commencement in 1984 of the prosecution of appellant for a rape occurring in 1981 was within the applicable five year statute of limitations.

Judgement of Sentence affirmed.

POPOVICH, J., concurs in the result.

McEWEN, J., files a dissenting opinion.

TAMILIA, J., files a dissenting statement.

McEWEN, Judge,

dissenting:

The view of the majority is presented in such thoughtful fashion and has been so readily embraced by all of my colleagues that I am hesitant to offer a differing view. Moreover, one must be slow to undertake an inquiry that will enable a culprit to evade a reckoning. Nonetheless, I dissent.

There can be no disagreement with the statement of the majority that the legislature possesses the power and the authority to promulgate a new statute of limitations applicable to offenses committed prior to the effective date of the new statute. Nor can there be disagreement that application of the new five year statute of limitations to the instant prosecution would not violate the prohibition against ex post facto laws. Cf. Commonwealth v. Guimento, 341 Pa.Super. 95, 491 A.2d 166 (1985).

The issue presented by this appeal, however, is whether the legislature intended the Act of May 13, 1982, P.L. 417, No. 122, § 1, (hereinafter “Act 122”) to apply to crimes committed prior to July of 1982. Act 122 itself does not contain an explicit expression of the intention of the legislature concerning the applicability of the statute to crimes committed before its effective date. Section 1926 of the Statutory Construction Act, however, provides that “no statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S. § 1926. Our Supreme Court has also held that “[statutes of limitations are of course liberally construed in favor of the defendant and against the Commonwealth.” Commonwealth v. Cardonick, 448 Pa. 322, 330, 292 A.2d 402, 407 (1972). The majority, recognizing these well settled principles, holds that application of the five year statute of limitations to crimes committed before its effective date is required by the express terms of Act 122, and is a prospective application of the statute rather than a retroactive application. The majority reaches this conclusion in the following fashion:

The precise terms of Act 122 are that “a prosecution for [rape] must be commenced within five years after it is committed.”
The object “to which the new five year period applies is
the commencement of a prosecution
The Act is, therefore, prospective in nature.

As logical as this analysis may appear, it causes one to ask, if the application of Act 122 to a crime committed prior to its effective date is a prospective application of the statute, what would ever constitute a retroactive application of a statute of limitations?

The issue of whether the application of a particular statute is retroactive or prospective is not easily resolved. The same general assembly which amended 42 Pa.C.S. § 5552(b) by Act 122 again amended Section 5552(b) some seven months later, and provided for a new, five year statute of limitations for offenses arising under the Public Welfare Code, 42 Pa.C.S. § 5552(b)(4). See: Act of December 20, 1982, P.L. 1409, No. 326, Art. II, § 201 (hereinafter “Act 326”). In Section 403 of Act 326, the legislature expressly provided that the new statute of limitations would “apply only to causes of action which accrue after the effective date of this act.” Section 403 of Act 326 provides for what I suggest is a truely prospective application of a new statute of limitations.

The argument of the majority, that application of the five year statute is prospective rather than retroactive, resembles the reasoning of the eminent Justice Larsen in his dissent in Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981): “We need not concern ourselves, however, with [1 Pa.C.] § 1926 as there has been no retroactive application of the statute. Application of a sentencing procedure enacted in 1978 to a conviction rendered in 1979 can in no way be viewed as retroactive.” Commonwealth v. Story, supra, 497 Pa. at 306, 440 A.2d at 505 (Dissenting Opinion by Larsen, J.) (emphasis in original). The majority in Story, however, held that application of the sentencing procedures established by the Act of September 13, 1978, to a crime occurring in 1974 would be retroactive, and refused to apply the act retroactively:

That the Legislature did not intend the Act of September 13, 1978, to apply to an offense committed in 1974 is obvious from this Court’s interpretation of the legislature’s express mandate that ‘no statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.’ 1 Pa.C.S. § 1926.
The prohibition against a retroactive construction of a statute is longstanding. The Statutory Construction Act of 1937 contained the identical prohibition, Act of May 28, 1937, P.L. 1019, § 56, formerly 46 P.S. § 556 (1969), as did our case law as early as 1837. Oliphant v. Smith, 6 Watts 449, 451.
Even where the General Assembly intends a retroactive construction, the statute is to be “strictly construed.” 1 Pa.C.S. § 1928(b)(2).
In no area is the prohibition against retroactive construction more strongly mandated than in the criminal law. Emphasizing the prohibition contained in the Statutory Construction Act, the act which implements the Crimes Code adds:
“Title 18 of the Consolidated Pennsylvania Statutes (relating to crimes and offenses), as added by this act, does not apply to offenses committed prior to the effective date of this act____ For the purposes of this section, an offense was committed prior to the effective date of this act if any of the elements of the offenses occurred prior thereto.”

Commonwealth v. Story, supra, 497 Pa. at 276, 440 A.2d at 489. (Opinion by Justice Roberts, joined by Chief Justice O’Brien and Justice Wilkinson). See also: Bacchetta v. Bacchetta, 498 Pa. 227, 236, 240, 445 A.2d 1194, 1199 and 1201 (1982) (Dissenting Opinions of Chief Justice Nix and Justice Flaherty); Misitis v. Steel City Piping Company, 441 Pa. 339, 340, 272 A.2d 883, 883 (1971).

The United States Court of Appeals for the Third Circuit, in United States v. Richardson, 512 F.2d 105 (3rd Cir.1975), was faced with the precise issue presently before this Court. The Court of Appeals there held:

The question is one of ascertaining congressional intent. Congress, of course, has the power to extend the period of limitations without running afoul of the ex post facto clause, provided the period has not already run. Falter v. United States, 23 F.2d 420, 425-26 (2d Cir.1928). Criminal statutes of limitations, however, are to be interpreted in favor of repose. Toussie v. United States, 397 U.S. at 115, 90 S.Ct. 858.
Moreover, a law is presumed to operate prospectively in the absence of a clear expression to the contrary. Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, [564], 82 L.Ed. 858 (1938). Therefore, we must decline to hold that Congress in fact has exercised its power to extend the limitations period in the instant case, unless we discern a clear intention on the part of Congress that section 462(d) should apply to offenses committed before September 28, 1971.
The language of section 462(d) is silent on this point. Although the legislative history of the statute indicates that Congress wished to overcome the decision in Toussie, it does not indicate, contrary to the Government’s contention, whether the new statute of limitations is to apply to offenses occurring before the statute’s enactment. We therefore hold that section 462(d) applies only to offenses committed after September 28, 1971.

United States v. Richardson, supra, 512 F.2d at 106.

I, therefore, would find that Commonwealth v. Baysore, 349 Pa.Super. 345, 503 A.2d 33 (1986), allocatur denied, September 30, 1986, was correctly decided.

TAMILI A, Judge,

dissenting:

I respectfully dissent from the majority’s decision and join the dissent by McEwen, J. as I believe it is more persuasive on the issue of retroactivity of a criminal offense. I am further persuaded in this view by the fact that the Supreme Court had an opportunity to review this issue when it considered Commonwealth v. Baysore, 349 Pa.Super. 345, 503 A.2d 33 (1986) and denied allocatur. While I am extremely reluctant to reverse a jury finding under these circumstances where a child has been sexually assaulted over a period of years by an adult, I believe Bay-sore requires it. Fortunately, the amendment of 1985, Tolling of Statute, 42 Pa.C.S.A. § 5554(3), provides the statute will not run as to.a child under 18 years of age where the crime involves injury to the person of the child because of unlawful violence or neglect by the child’s parents, persons responsible for the child’s welfare, individuals residing in the same home as the child or a paramour of the child’s parents. Thus it appears that offenses of this kind, as to children, will not escape prosecution in the future because of the child’s immaturity, fear, or lack of understanding which delays reporting of the offense.

      . Appellant also raises on appeal four claims of ineffective assistance of trial counsel: 1) counsel failed to call the appellant as a witness on his own behalf; 2) counsel failed to call any character witnesses; 3) counsel failed to investigate or call any witnesses; and 4) counsel failed to object to hearsay statements of one Erin Randolph. The trial court has adequately discussed and correctly decided the first, second, and fourth issues, and therefore we will not address them.
      As to the third claim of ineffectiveness, we are unable to discern how it differs in any regard from the second issue. In neither the post-trial motions nor anywhere in the brief on appeal does appellant indicate the identity of the witnesses who were not investigated or called nor whether they were available to testify nor to what they would have testified. Furthermore, although counsel mentioned at the hearing one witness other than a character witness of whom he was aware, there was no evidence presented concerning the substance of the witness’ testimony, and whether the witness was available and willing to testify. Therefore, to the extent that this third issue is the same as appellant’s second ineffectiveness claim, we dispose of it on the basis of the trial court’s opinion on the second claim of ineffectiveness. To the extent that it is a separate issue, we find no merit to it based upon Commonwealth v. Torres, 329 Pa Super. 58, 477 A.2d 1350 (1984).

      . Although appellant argues that U.S. v. Richardson, 512 F.2d 105 (3rd Cir.1975) leads to a different result, we do not find Richardson to be applicable here. Not only did Richardson involve the interpretation and application of a different statute, but the statute involved was one promulgated by a different legislative body than that which adopted the statute in question in the present case. Therefore resolution of the essential question of the intent of the legislative body in Richardson could not be controlling in the present case which involved a different legislature. Moreover, Richardson is not binding authority for this court to follow because it is precedent from a different jurisdiction.
      We also find the reliance in the Dissenting Opinion on Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981) to be misplaced. Story involved the question of the application of a 1978 sentencing statute to a conviction following a re-trial in 1979 for a murder which had occurred in 1974. Not only was the statute in question a different one than the one involved in the present case, but more importantly, the statute in Story was not a statute of limitations but a sentencing statute.

      . '“Every statute of limitations, of course, may permit a rogue to escape____'” Toussie v. United States, 397 U.S. 112, 123, 90 S.Ct. 858, 864, 25 L.Ed.2d 156 (1970) quoting Pendergast v. United States, 317 U.S. 412, 418, 63 S.Ct. 268, 270, 87 L.Ed. 368 (1943).

      . The interpretation of Act 122 and Act 326 by the majority results in the anomaly of the five year statute of limitations provided by 42 Pa.C.S. § 5552(b) being applied retroactively to prosecutions arising under subsections (b)(1) and (b)(2), but prospectively to prosecutions arising under subsection (b)(4).

      . Chief Justice Nix, in his concurring opinion in Commonwealth v. Story, supra, concluded that the sentencing procedures of the Act of September 13, 1978, could not be applied to an offense committed in 1974 because the legislature had not expressed an intention to apply the act retroactively.


author: BECK, Judge:

text:
    542 A.2d 1033
    FORD MOTOR CREDIT COMPANY, Appellant, v. Richard A. DUNSMORE and Tina Dunsmore, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1988.
    Filed June 13, 1988.
    Michael Coughlin, Blue Bell, for appellant.

      Before BECK, KELLY and JOHNSON, JJ.
   BECK, Judge:

The issue in this case is whether the Lemon Law and a warranty claim can be asserted by the purchaser of an automobile as defenses in a replevin action brought by the company financing the purchase of the car. We find they cannot and we therefore vacate the order of the trial court.

Appellant Ford Motor Credit Company (“FMCC”), the assignee of an installment contract for the purchase of an automobile, filed a Complaint in Replevin and a Motion for Writ of Seizure after the appellees, a Mr. and Mrs. Duns-more (“Dunsmores”), failed to make the requisite payments under the contract. The Dunsmores filed an Answer to the Complaint, alleging in New Matter breaches of warranty and of the Pennsylvania Automobile Lemon Law (“Lemon Law”), 73 Pa.Stat.Ann. § 1951 et seq. (Purdon 1987).

At the hearing below on the Motion for Writ of Seizure, the Dunsmores introduced a copy of an Amended Complaint which they had filed in a separate action against West Chester Ford Company and Ford Motor Company, Inc. In that action, the Dunsmores sought a court order to compel the defendants to accept return of the allegedly defective vehicle and to return to the Dunsmores the purchase price pursuant to the Lemon Law. The Dunsmores introduced this complaint to support their argument that, by permitting FMCC to seize the automobile, the Duns-mores’ potential remedy under the Lemon Law would be impaired. That is, they would no longer possess the automobile which they were trying to return to the dealer and manufacturer for refund. The trial court denied FMCC’s motion, concluding that the Dunsmores’ Lemon Law defense and related warranty claims could be raised as defenses in a replevin action and that the Dunsmore’s right to pursue their rights under the Lemon Law superseded FMCC’s common law rights of replevin. The trial court erred in so ruling.

It is well established in this Commonwealth that the sole issue in a replevin action is title and right to possession. All other matters must be excluded and are not available as defenses. Koehring Company v. Ventresca, 334 Pa. 566, 6 A.2d 297 (1939); Equico Lessors, Inc. v. Ewing, 281 Pa.Super. 147, 421 A.2d 1190 (1980); Donegal Mutual Insurance Co. v. Miller, 277 Pa.Super. 186, 419 A.2d 724 (1980). A warranty claim cannot be asserted as a defense in a replevin action. Lee-Strauss Co. v. Kelly, 292 Pa. 403, 141 A. 236 (1928); Hall’s Safe Company v. Walenk, 42 Pa.Super. 576 (1910). Any such claims which the purchaser may have against the seller must instead be asserted in an independent proceeding. Hahn v. Andrews, 370 Pa. 65, 87 A.2d 284 (1952). Thus, the Dunsmores should have been precluded from asserting any warranty defenses.

Although the Lemon Law was enacted to grant relief to purchasers of defective new automobiles, the law does not directly address the question of whether the purchaser of the defective new car has a continuing obligation to make payments for the car after the purchaser asserts a defect under the Lemon Law. We conclude that the Lemon Law does not permit the purchaser of a defective automobile to discontinue making payments under a financing contract while pursuing Lemon Law remedies.

There is nothing in the Lemon Law that supports the conclusion that the Lemon Law has modified the common law remedy of replevin. The Lemon Law contains no provision allowing the purchaser of an allegedly defective automobile to suspend making payments under a financing arrangement for the automobile. Rather, the law grants certain other remedies to a purchaser of a defective new motor vehicle. For example, the automobile manufacturer must repair or correct certain nonconformities. 73 Pa.Stat. Ann. § 1954 (Purdon 1987). If the manufacturer fails to repair or correct a nonconformity after a reasonable number of attempts (as defined elsewhere in the law), the manufacturer must, at the option of the purchaser, either replace the motor vehicle with a comparable motor vehicle of equal value, or accept return of the vehicle from the purchaser and refund to the purchaser the full purchase price, less certain allowances. 73 Pa.Stat.Ann. § 1955 (Purdon 1987).

Thus, the trial court erroneously held that Section 1955 of the Lemon Law provided a defense to the replevin action. The court reasoned that, in order to return the automobile and obtain a refund under the statute, the Dunsmores had to retain possession of the car. However, nothing in the statute allows a consumer to compromise the contractual rights of a creditor, be it a dealer-lender or a third-party financial institution, by refusing to pay for an automobile because of a claim against the manufacturer. The Duns-mores could have retained possession of the automobile simply by making the payments as contractually required. If their complaint against the manufacturer is valid, the Dunsmores will eventually bp fully recompensed under the Lemon Law.

If, on the other hand, the Lemon Law permitted the Dunsmores to stop payments to the secured creditor, FMCC, while pursuing Lemon Law remedies against the manufacturer, FMCC would bear the risk of suffering irreparable harm if the Dunsmores’ Lemon Law action proves unsuccessful. In such a case, as a secured creditor, FMCC would be left with collateral that would be substantially, if not completely, depreciated in value. This would be especially true if the Lemon Law action is not completed for several years. FMCC would then be left with a virtually unsecured claim if the Dunsmores lose the action.

While on public policy grounds it might be desirable to have the secured creditor rather than the purchaser bear the risk of loss, the legislature has not provided that consumers be given such a remedy against creditors under the Lemon Law. We decline to add judicial remedies to the statute. See Commonwealth v. Rieck Investment Corporation, 419 Pa. 52, 213 A.2d 277 (1965) (“it is not for the courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include”). As it currently stands, the Lemon Law provides the consumer with remedies against the manufacturer only. Thus, at the hearing below, the only issue which should have been entertained and decided was whether FMCC established title and right to possession of the automobile as against the Dunsmores. It was error for the trial court to consider warranty and Lemon Law defenses.

Therefore, we vacate the order and remand this case for the trial court to enter an order granting the relief requested by appellant. Jurisdiction relinquished.

JOHNSON, J., concurs in the result.

      . In this case, the Dunsmores executed an installment contract with West Chester Ford, a dealership. West Chester Ford then assigned the installment contract and its security interest to FMCC. The Duns-mores argued below that, under Federal Trade Commission Regulations, FMCC, as an assignee, could be subjected to any claim which the Dunsmores could assert against the dealership. 16 C.F.R. § 433.2. However, had the dealership remained as the creditor, neither a warranty claim nor the Lemon Law would have provided a defense in a replevin action. Therefore, the defenses were unavailable against FMCC. The identity of the creditor makes no difference, as the cases cited above repeatedly hold that any warranty claim must be presented in an independent proceeding and cannot be litigated in a replevin action. See e.g., Lee-Strauss Co. v. Kelly, 292 Pa. 403. Moreover, the Lemon Law gives the consumer a recourse against the manufacturer, not the dealership.

      . Providing a consumer with a remedy against a third party creditor in a dispute involving the consumer and a seller or manufacturer has been done under federal regulations. In certain circumstances under the Truth in Lending regulations, 12 C.F.R. § 226.12, when a person honoring a credit card for a purchase fails to resolve a dispute with the consumer as to that pin-chase, the consumer may assert against the card issuer all claims and defenses arising out of the transaction. Presumably, by giving consumers some recourse against creditors in such consumer transactions, the creditors in turn will exert pressure on the dealers or manufacturers to resolve the consumer’s dispute. The Pennsylvania Lemon Law does not contain any provisions similar to this federal regulation.


author: DEL SOLE, Judge:

text:
    542 A.2d 1036
    COMMONWEALTH of Pennsylvania, Appellant, v. Sherman Ross CLARK, Appellee.
    Superior Court of Pennsylvania.
    Argued March 11, 1985.
    Filed June 6, 1988.

      Frank J. Scutella, Assistant District Attorney, Erie, for Com., appellant.
    Leonard G. Ambrose, III, Erie, for appellee.
    Before DEL SOLE, HESTER and FEENEY , JJ.

       The Honorable John M. Feeney, former Judge of the Court of Common Pleas of Allegheny County, who was sitting by designation on the Superior Court as of March 1985, and whose term of office ended on the first Monday of January 1986, did not participate in the consideration of this matter.

   DEL SOLE, Judge:

This case is before us upon remand from the Pennsylvania Supreme Court.

In our initial examination of the case we addressed two issues presented by the Commonwealth. See: Commonwealth v. Clark, 349 Pa.Super. 255, 502 A.2d 1375 (1985). After reviewing the facts we concluded that the trial court correctly ruled that conversations recorded between Appellee and Commonwealth informant, Richard McCullough had to be suppressed since the consent issued by Mr. McCullough was not voluntary. However because we found the review and authorization requirements of the Wiretapping and Electronic Surveillance Control Act of 1978, 18 C.S.A. § 5701, et seq. (the Act) were complied with regarding a recorded conversation between Appellee and a state trooper on January 9, 1983, we reversed the trial court order which suppressed their contents.

The Supreme Court granted the Commonwealth’s request for review to consider “whether the possibility of the refiling of criminal charges against an individual forecloses the individual’s ability to voluntarily consent to a request by law enforcement authorities for a wiretap interception.” Commonwealth v. Clark, 516 Pa. 599, 533 A.2d 1376, 1377 (1987). With regard to this issue the Supreme Court reversed this court’s earlier decision and held that Mr. McCullough’s consent was freely given. The Supreme Court also noted that the trial court suppressed these same conversations because it found other instances of non-compliance with the provisions of the Act, including the issuance of blanket consents and the failure to the Assistant District Attorney to review the facts prior to authorizing the interceptions. Since these matters were not treated by this court in our initial review of the case, the Supreme Court ordered the case to be remanded “for resolution of the remaining issues.” Id., 516 Pa. at 611, 533 A.2d at 1382.

We now consider whether the trial court properly ruled that the provisions of 18 Pa.C.S. § 5704(2)(ii) were not complied with by the Commonwealth in this case. The relevant portion of the statute at issue provides an exception to the general prohibition against the interception or disclosure of communications. It reads in pertinent part:

It shall not be unlawful under this chapter for ...
(2) Any investigation or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:
(ii) one of the parties to the communication has given prior consent to such an interception. However, no interception under this paragraph shall be made unless the Attorney General, or the district attorney, or a assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception.

In accordance with the Act, the Erie County District Attorney designated Assistant District Attorneys Cauley and Scutella to review the facts and determine if the consent was made voluntarily, to give prior approval to the interception and to comply with the other technical provisions of the Act. Mr. McCullough met with Assistant District Attorney Cauley on October 19, 1982 and at that time executed the first of fifteen consent forms which indicated his willingness to permit the monitoring of his conversations in an effort to detect the activities of those involved with stolen vehicles. Conversations between Mr. McCullough and Appellee were intercepted in the period from December 11, 1982 to January 22, 1983. Consent forms signed by McCullough and numbered as Commonwealth’s Exhibits 11, 12 and 13 covered the relevant time period. Exhibit number 11 was signed on December 9, 1982 and was to be effective from December 11 until December 30, 1982. At the expiration of this consent period, Mr. McCullough executed a consent form to cover the interception of communications occurring from January 1 until January 20, 1983, Exhibit number 12. On January 19, 1983, a consent form for the period of January 21 until February 10, 1983 was signed by Mr. McCullough. This form was listed as Commonwealth’s Exhibit 13. Each of these consent forms was witnessed by Trooper Dana L. Anderson.

The trial court found that the Commonwealth failed to comply with the provisions detailed in § 5704(2)(ii) regarding consensual interceptions and cited this noncompliance as reason to suppress the contents of the recorded conversations. Specifically, the court found that § 5704(2)(ii) did not permit issuance of consent forms which covered a period of days. It held that a separate consent must be obtained prior to the interception of each communication. The trial court also ruled that the Commonwealth did not establish that the District Attorney or the designated Assistant District Attorney reviewed and gave prior approval to each interception as required by § 5704(2)(ii). The court considered it improper that: “the Assistant District Attorneys supervising the case, considered that their grant of approval was on a continuing basis or presumably the authority to review facts and determine voluntariness and thus authorization of the intercept was delegated to the Pennsylvania State Police.” Trial Court Opinion 12/12/83 at 9. (citations to record omitted.)

After review, we conclude the trial court erred in holding that blanket consent forms are not permitted by the Act. However, since we find that provisions of § 5704(2)(ii) which requires that no interception may be made unless the district attorney or a designated assistant district attorney “has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception”, was not followed in this case, we affirm the suppression of the communications at issue.

In Commonwealth v. Adams, 362 Pa.Super. 549, 524 A.2d 1375 (1987) this court had occasion to consider the validity of blanket consents. Therein it was held: “There is no statutory requirement that consent be authorized prior to every conversation nor does § 5704(2)(ii) set forth a specific length of time during which a consent remains viable.” Id., 362 Pa.Superior Ct. at 555, 524 A.2d at 1378. In reaching its decision, the Adams’ court referred to the trial court’s opinion in the instant case. It found the trial court’s analysis, which interpreted the statute to require a new consent prior to the interception of each communication, to be “unpersuasive”. Id.

Although it was determined that blanket consents did not violate the requirements of § 5704(2)(ii) in Commonwealth v. Adams, Id., it is necessary to examine the factual context in which that decision was made. An ongoing conspiracy involving the distribution of marijuana was the subject of the investigation in Adams. In an effort to gather evidence the Attorney General designated Deputy Attorney General Peters to approve the use of electronic surveillance. Peters personally interviewed a Mr. Maruca and determined that he was voluntarily consenting to the use of a tap on his telephone. Mr. Maruca then executed a consent form which established a ten day time period for conducting the surveillance. At the expiration of this period Peters again interviewed Maruca, this time by phone, to determine if he would voluntarily consent to conducting the interceptions for another ten day period. After the interview Maruca signed a memorandum of consent form. This process continued until six such forms were signed each for ten day time periods. In approving the procedure utilized, it was stated:

Our holding should not be interpreted to mean that once valid consent has been given, it remains in effect for as long as the informant engages in conversations which he knows are being taped; rather, by this Opinion, we uphold as consistent with the Pennsylvania Wiretap Act, the procedure implemented by the Office of the Attorney General in this case, i.e., the consistent interviewing of the informant to ensure that his consent was being given voluntarily and the use of memorandums of consent which authorized interceptions for ten day periods. We hold that the Wiretapping and Electronic Surveillance Control Act does not require that consent be given prior to each recorded communication.

Id. (footnote omitted).

The critical difference between the facts described in Adams from those found in the instant case is the absence in this case of a continued examination of the consenting party by someone authorized to give approval prior to the interception. The court in Adams pointed out that the Deputy Attorney General spoke to the consenting party to ascertain the voluntariness of his actions prior to the signing of each memorandum of consent. The court approved the procedure utilized with specific reference to the “consistent interviewing” of the consenting party. In contrast in the case before us, the Assistant District Attorneys authorized to approve the interceptions did not meet with or speak to McCullough prior to obtaining his consent for each new period of surveillance.

Both Assistant District Attorney Cauley and Scutella were questioned about their contacts with the informant, Mr. McCullough. They revealed that Mr. Cauley was principally involved with Mr. McCullough’s initial agreement to consent to interceptions in October of 1982. At this time the authorities were centering their investigation on two individuals, Mr. Tharp and Mr. Manta. The investigation lasted for approximately six months beginning in October 1982. Mr. Scutella testified that during the course of the investigation he talked to Mr. McCullough relative to his continued participation and cooperation “anywhere from six to twelve times.” He further stated:

I can say for sure that I talked to Mr. McCullough every time that he—that the state police purchased a truck from Mr. Manta because I was usually present when that happened. Mr. McCullough would be equipped with monitoring equipment____ I observed Mr. McCullough again between six to twelve times, I may not have talked to him on all of those occasions, but my purpose was to see how Mr. McCullough was doing and whether he was balking or hesitating or coming to a point where he did not want to go along with what was happening.

N.T. 11/8/83 at 64.

In speaking of the investigation as it proceeded with respect to Appellee, Mr. Scutella testified:

... and with most respects to Mr. Clark, the police would call me and contact me and say this is going to happen and this is going to happen with these two individuals— ... Trooper Anderson would contact me occasionally; Trooper Povlick would contact me and say that certain portions of the transactions between Mr. Clark and Mr. Wintrode were going to occur. I would then ask them, have you talked to Mr. McCullough, is Mr. McCullough continuing to sign these consents. And at the time I did not believe we had to have all the consents that we did. I asked them to do that to show a continuing course of consent, and they indicated to me that, yes, he was. And I believe that we introduced all of those.

N.T. 11/8/83 at 60.

The conversations between Appellee and Mr. McCullough occurred in December of 1982 and January of 1983. As noted Mr. McCullough signed consent forms identified as Commonwealth’s Exhibits 11, 12 and 13 which covered this time frame. District Attorneys Cauley and Scutella both indicated that they were not present when Mr. McCullough signed these consent forms, and in fact they had not contacted Mr. McCullough prior to execution to ascertain his consent. Mr. Cauley was questioned:

Q. Under the provisions of Chapter 57 is it your belief or was it your belief at that particular time that you could delegate your statutory responsibilities to a police officer for the police officer to ascertain the voluntariness of the particular person’s consent in terms of the execution of a Memorandum of Consent?

He responded:

Not in a cold case, Mr. Ambrosee. In a case such as this under these circumstances I saw no problem with relying on information that I got from the State Police, from my County Detective, from other State Police officers and from my own personal observation on the one occasion that Mr. McCullough was continuing to consent. In a cold case where informants were being used for the first time that I had never seen or never interviewed or never been involved in, I wouldn’t do that. I this case having made the initial judgment that Mr. McCullough agreed to these interceptions on October 19th and would agree to as part of the arrangement that we entered into with him and having had that judgment continually confirmed by a long series of events including his continued participation, his—his lack, if you will, of any objection or refusal to do these things, and in fact at least early on he seemed to be enjoying some of these things to tell you the truth. He enjoyed working with them.

N.T. 10/26/83 at 112-113.

Mr. Scutella testified similarly regarding Mr. McCullough’s consent:

... my recollection is that Trooper Anderson would contact us and indicate that a consent form had been signed both Mr. and Mrs. McCullough and that they were voluntarily continuing with their consents on the interception of their telephone communication.
Q. Let’s take that answer, let’s take that answer. He would only contact you, from what you said, after the consent form was already signed, and he would tell you, after the consent from was signed, according to your own answer, that they were continuing to voluntarily consent? That is what you just said, is that true?
A. If I said it, I said it, yes.

N.T. 11/8/83 at 111.

The court in Commonwealth v. Adams, supra., held that the procedure utilized in that case, including the consistent interviewing of the informant to ensure his consent, was consistent with the Pennsylvania Wiretap Act. The court also expressly noted that an informant’s continued participation in conversations which he knows are being taped is hot sufficient to establish valid consent. In the instant case the Commonwealth relied upon information supplied by others to ascertain Mr. McCullough’s consent. Unlike the facts present in Adams the Commonwealth here did not establish that the requirements of § 5704(2)(ii) were met. Neither Assistant District Attorneys Cauley or Scutella demonstrated that they had previously reviewed the facts, that they had become satisfied through personal contact with Mr. McCullough that his consent was voluntary and that they had given prior approval for the interception.

In his Dissenting Opinion in Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987), our colleague, Judge Rowley wrote that in his belief the limitations provided to consensual wiretapping found in § 5704(2)(ii) “are sufficient to guard against the unlimited and indiscriminate use of such interceptions and the evidence obtained therefrom and act as an adequate deterrent to inappropriate police activity. Moreover, such limitations drastically minimize the likelihood of an invasion of the lawabiding citizen’s legitimate expectations of privacy.” Id., 370 Pa.Superior Ct. at 271, 536 A.2d at 400. However, even the minimum protection offered by § 5704(2)(ii) was not followed in this case. The provisions of the Act must be strictly adhered to in order to insure that safeguards are in place to protect persons from unauthorized surreptitious interceptions. Here, the supervision directed by the Act was not followed. The responsibilities outlined in the Act regarding the duties of the Attorney General, District Attorney or their designee are non-deligable. Those persons responsible for authorizing interceptions under the Act must personally review the facts, ascertain directly from the consenting party the voluntariness of his or her consent and give prior approval to the interceptions. The Assistant District Attorneys’ designated to authorize the interception of Appellant’s conversations with Mr. McCullough never performed these prepatory duties. Rather, these duties were wrongly delegated to and undertaken by the Pennsylvania State Police.

Since we conclude that the provisions for the interception of communications found in § 5704(2)(ii) were not followed, we affirm the trial court order which suppressed the contents of the intercepted conversations at issue.