text:
    609 A.2d 567
    John KELLER, Appellant, v. Karen F. KINSLEY, a/k/a Karen F. Irwin, a/k/a Karen F. Balough, a/k/a Karen F. Casto, a/k/a Karen F. Perry, a/k/a Karen F. Skocz, Appellee.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1992.
    Filed June 26, 1992.

      John Keller, appellant, pro se.
    Karen Kinsley, appellee, pro se.
    Before DEL SOLE, TAMILIA and HESTER, JJ.
   DEL SOLE, Judge:

This is an appeal from an order denying Appellant’s request for permission to proceed in forma pauperis. After a jury trial, Appellant was convicted of involuntary deviate sexual intercourse, unlawful restraint, and indecent assault and was sentenced to serve a term of not less than six and one-half years nor more than twenty years at the State Correctional Institution in Pittsburgh, Pennsylvania.

Following his conviction, Appellant filed a Petition to proceed in forma pauperis, in a civil proceeding, which was denied based upon the trial court’s conclusion that the claims raised in Appellant’s complaint were a direct collateral attack on Appellant’s criminal conviction and thus could not be properly raised in a civil suit. Appellant filed a Motion requesting that the trial court vacate its order. The motion was denied. Appellant then filed a pro se appeal to this court and the trial court accordingly ordered that Appellant could proceed, for the purpose of the current appeal, in forma pauperis.

In its opinion, the trial court did not expressly state that it dismissed Appellant’s complaint. However, since the court’s decision to deny Appellant’s request to proceed in forma pauperis was based on its belief that the claims set forth in Appellant’s complaint were frivolous, the trial court, in effect, dismissed Appellant’s complaint. In Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990) {en banc), this court stressed the importance of examining the practical effects of an order.

Our Supreme Court has “variously defined a final order as one which ends the litigation, or alternatively disposes of the entire case. Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant ‘out of court.’ ” [Fried v. Fried ], 509 Pa. [89] at 93-94, 501 A.2d [89] at 213 [quoting T. C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977) ] (additional citations omitted). Whether an order is final and appealable is a judicial determination which cannot be made without an examination of the order’s practical ramifications. Pennsylvania Turnpike Commission v. Atlantic Richfield Company, 482 Pa. 615, 618, 394 A.2d 491, 493 (1978) [quoting Bell v. Beneficial Consumer Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975)].

Motheral v. Burkhardt, 400 Pa.Super. 408, 414, 583 A.2d 1180, 1184 (1990) (en banc). The trial court’s decision to deny Appellant’s petition to proceed in forma pauperis had the practical effect of dismissing Appellant’s complaint. Therefore, we conclude that the current appeal from the order denying the petition is properly before this court.

Through this appeal, Appellant alleges that the trial court abused its discretion by denying Appellant’s in forma pauperis petition. Appellant also argues that the court’s conclusion, that Appellant was attempting to directly collaterally attack his conviction through means of the present action, was erroneous. We find no merit in Appellant’s claims and accordingly affirm the order of the trial court.

It is clear from our review of the record, that the major contention raised in Appellant’s complaint is that he was unjustly convicted. He asserts that his incarceration is a direct result of Appellee’s false allegations. In addition to requesting that the court award him One Hundred Twenty Thousand Dollars ($120,000.00) in damages, Appellant requests that the court also award him a new jury trial and any other relief that it “may deem just, proper, and equitable.”

It is apparent, from the allegations contained in his complaint and from the type of relief that he has requested, that Appellant, is attempting to collaterally attack his criminal conviction through means of a civil action. Having reviewed the record for the purpose of determining whether the trial court abused its discretion or committed an error of law, we conclude that the trial court’s opinion is well founded in both law and fact. The trial court correctly held that the Post-Conviction Relief Act, 42 Pa.C.S.A. § 9542 is the only means by which Appellant could collaterally attack his conviction.

§ 9542. Scope of subchapter
This subchapter provides for an action by which persons convicted of crimes they did not commit or serving unlawful sentences may obtain collateral relief and for an action by which persons can raise claims which are properly a basis for Federal habeas corpus relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis, (emphasis added).

42 Pa.C.S.A. § 9542.

The trial court, having concluded that Appellant’s claim was improperly raised in a civil action, addressed the importance of allowing individuals to proceed in forma pauperis. It stressed the importance of providing free access to the courts to those individuals who are not able to afford the costs of suit, but the court noted that that sort of relief is available only to those individuals who may have a valid cause of action.

Subsection (b) of Rule 240 of the Pennsylvania Rules of Civil Procedure states that:

A party who is without the financial resources to pay the costs of litigation is entitled to proceed in forma pauperis.

Pa.R.C.P. No. 240(b). This rule was recently amended through the addition of subsection (j) which became effective on January 1, 1992. This new subsection compels courts to avoid granting in forma pauperis status to litigants who fail to present a valid cause of action.

(j) If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party filed a petition for leave to proceed in forma pauperis, the court prior to acting on the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous.

Pa.R.C.P. No. 240(j).

Even though Pa.R.C.P. No. 240(j) went into effect while the current appeal was pending, it is applicable. Pa.R.C.P. No. 52 expressly provides that amendments to Rules of Civil Procedure, unless otherwise stated, “shall apply to actions pending on the effective date” of the amendment.

We agree with the trial court’s decision that Appellant should not be permitted to proceed in forma pauperis. As we have already discussed, Appellant’s claim is frivolous. He seeks to improperly collaterally attack his criminal conviction through means of a a civil suit. Therefore, based upon our review of the record and in light of the enactment of Pa.R.C.P. No. 240(j), we dismiss Appellant’s complaint and affirm the order of the trial court.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    609 A.2d 569
    Kristen H. STRUTZ and Carl James Strutz, Her Husband, Appellants, v. STATE FARM MUTUAL INSURANCE COMPANY and Lorna Binder.
    Superior Court of Pennsylvania.
    Argued April 23, 1992.
    Filed June 26, 1992.

      Raymond G. Hasley, Pittsburgh, for appellants.
    Mike Nerone, Pittsburgh, for appellees.
    Before TAMILIA, HUDOCK and HESTER, JJ.
   TAMILIA, Judge:

Kristen H. Strutz and Carl J. Strutz, her husband, take this appeal from the July 31, 1991 Order granting defendants’ preliminary objections in the nature of a demurrer and dismissing the suit as to appellee State Farm Mutual Insurance Company.

On May 8, 1991, appellants filed suit to recover for personal injuries and property damage sustained when their vehicle collided with that driven by appellee Lorna Binder, an insured of State Farm. Appellees filed preliminary objections which demurred to the complaint, moved to strike references to settlement negotiations, requested more specific pleadings and averred improper venue. By Order dated July 31, 1991, the court sustained the preliminary objections as to improper venue and demurrer and dismissed defendant State Farm with prejudice.

The appellants argue the court abused its discretion by granting appellees’ demurrer and by finding appellants, as alleged third-party beneficiaries, had no cause of action against the insurer. Assuming they are third-party beneficiaries under Binder’s policy, appellants contend they qualify as “insureds” and argue their cause of action against State Farm is proper pursuant to the terms of the policy. Lastly, appellants aver State Farm’s failure to negotiate and settle their claim pursuant to appellants’ valuation of those claims, despite State Farm’s alleged admitted liability, constituted bad faith.

On an appeal from an Order sustaining preliminary objections in the nature of a demurrer “we accept as true all well-pleaded material facts set forth in the complaint as well as all inferences reasonably deducible therefrom.” DiMarco v. Lynch Homes, 525 Pa. 558, 561, 583 A.2d 422, 424 (1990), quoting Dercoli v. PA National Mutual Insurance Co., 520 Pa. 471, 476, 554 A.2d 906, 908 (1989). However, the court is free to disregard averments which are conclusions of law. Whitmer v. Bell Telephone of PA, 361 Pa.Super. 282, 522 A.2d 584 (1987). See also Allegheny Co. v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985). A mere settlement offer cannot be construed as an admission of liability. Rochester Machine Corp. v. Mulach Steel Corp., 498 Pa. 545, 449 A.2d 1366 (1982).

To be considered a third-party beneficiary in this state it is necessary to show both parties to the contract had an intent to benefit the third party through the contract and did, in fact, explicitly indicate this intent in the contract. Spires v. Hanover Fire Ins. Co., 364 Pa. 52, 70 A.2d 828 (1950). See also Gerace v. Holmes Protection of Phila., 357 Pa.Super. 467, 516 A.2d 354 (1986), appeal denied, 515 Pa. 580, 527 A.2d 541 (1987). We find no such intent in Binder’s contract of insurance with State Farm, either explicit or implied. The parties’ intent was to exchange premiums for liability protection, with no eye toward benefiting persons such as the plaintiffs. Appellants’ reliance on Rose & Son, Inc. v. Zurich General Accident Co., 296 Pa. 206, 145 A. 813 (1929), for the proposition accident victims are third-party beneficiaries of automobile liability policies, is also misplaced. In Rose the plaintiff had been struck by one of the insured’s, Rose’s, trucks and had sued the insurer to satisfy her judgment when the insured went bankrupt. The right to bring such suit against a liability insurer, premised on the tortfeasor/insured’s insolvency, is authorized by statute. 40 Pa.S. § 117, Indemnity insurance; statement as to insolvency or bankruptcy of insured. Also without merit is appellants’ argument the court must accept as true its averment they are third-party beneficiaries. Such a statement is a conclusion of law rather than a factual averment and need not be accepted as true. Finally, any admissions of liability made on the insured’s behalf were incompetent.

Next, appellants aver the court erred by finding they are not entitled to bring a bad faith action against State Farm. We agree with the trial court the duty to negotiate a settlement in good faith arises from the insurance policy and is owed to the insured, not to a third-party claimant. By asserting its policy right to handle all claims, the insurer assumes a fiduciary position toward the insured and becomes liable to act in good faith and with due care in representing the interests of the insured. Hall v. Brown, 363 Pa.Super. 415, 526 A.2d 413 (1987), appeal denied, 522 Pa. 624, 564 A.2d 916 (1989). Contrary to appellants’ contention, the facts are distinguishable from those herein. In Dercoli, supra, the court found the insurance company’s duty to deal in good faith with the injured party arose from the fact the injured party was the wife of the insured and, herself, an insured under the policy. Dercoli did not recover on the basis of the defendant insurance company’s duty to bargain with a claimant other than the insured.

Appellants also contend their right to sue State Farm is guaranteed by the equal protection clause of the United States Constitution as it applies to section 8371 of the Judicial Code, Actions on insurance policies. 42 Pa.C.S. § 8371. Appellants argue the fourteenth amendment, which guarantees government will treat similarly situated individuals in a similar manner, is violated by not applying to them in an equal manner section 8371, which grants an insured the right to sue his insurer if it fails to act in good faith. As alleged third-party beneficiaries, appellants believe the Constitution forbids denying them the same rights as contract-designated (insureds) beneficiaries.

Having found appellants are not third-party beneficiaries of appellee Binder’s insurance policy with State Farm, it is not necessary to address appellants’ argument which relies on this averment. Dercoli, supra, also relied upon by appellants to support this constitutional argument, is factually distinguishable from the case at bar and therefore inapplicable.

Appellants’ final argument, that the Unfair Insurance Practices Act, 40 Pa.S. § 1171.1 et seq., allows a civil claim against an insurer by a private plaintiff for the insurer’s failure to deal in good faith, is likewise without merit. See D’Ambrosio v. PA National Mutual Casualty Insurance Co., 494 Pa. 501, 431 A.2d 966 (1981) (Insured was not entitled to supplement remedies of Unfair Insurance Practices Act by an action in trespass to obtain damages because of insurer’s alleged “bad faith” conduct).

Based on the foregoing reasons of law and fact we affirm the Order sustaining appellees’ preliminary objections.

Order affirmed.


author: BECK, Judge:

text:
    609 A.2d 572
    COMMONWEALTH of Pennsylvania v. John Joseph TIMER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 19, 1992.
    Filed June 26, 1992.

      Joan M. Righter, Norristown, for appellant.
    Mary M. Killinger, Executive Asst. Dist. Atty., Norris-town, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and BECK, JJ.
   BECK, Judge:

This is an appeal from the judgment of sentence imposed upon John J. Timer after he was convicted at a non-jury trial of criminal attempt and criminal conspiracy. The conviction arose as a result of a “reverse sting” operation in which an undercover narcotics officer posed as a drug dealer and appellant and two others, including appellant’s father, arranged to purchase drugs from the officer. Appellant challenges his conviction on several grounds, most of which go to a claimed insufficiency of the evidence on various elements of the Commonwealth’s case. He also challenges the admission at trial of a co-conspirator’s statement made during the drug transaction. Finally, appellant alleges that the trial court erred in failing to grant a mistrial when, on cross-examination, the Commonwealth assertedly introduced evidence of prior crimes. Appellant raises no claim of merit and we affirm.

The Commonwealth’s case was presented at trial primarily through the testimony of undercover police officer John Pendell. Agent Pendell stated that the law enforcement goal of his sting operation was to target mid or upper level dealers of controlled substances by having the police officer pose as a large scale dealer from whom they could purchase drugs. Towards this end, Agent Pendell let it be known, through an informant, that he had a quantity of methamphetamine for sale. The agent also told the informant the price of the drugs and informed him of a meeting place and time in the event that the “targets” wanted to make a purchase. On this occasion, Agent Pendell, again through the informant, indicated a meeting place in Conshohocken, Montgomery County, on February 27, 1990.

On that date, the narcotics agent arrived at the designated parking lot with a half pound of methamphetamine. While the agent remained in his car, he was approached at the pre-arranged time by appellant. Appellant began the conversation with the officer by informing him that “he”, referring to a third party, wanted to “taste” the product before he purchased it. Agent Pendell inquired as to whether “he” had the money with him. Appellant responded “Yeah” and the agent told him to have his companion bring the money over so that the agent could see it. To that request Timer stated, “He doesn’t want to meet anyone”. The agent remained steadfast and told Timer that he wanted to see the money before giving the purchaser a “taste”. According to the agent, Timer then suggested that he purchase a tiny sample of the drugs in order to bring back a taste to his companion. Agent Pendell reiterated that he wanted to see the money, to which Timer finally responded, “Pll get the money.” As Timer began to walk away, Agent Pendell asked if he wanted a quarter pound or half pound of drugs. Timer indicated that he wanted the “half pound”. In the meantime, a car driven by appellant’s father backed into the space right next to Agent Pendell’s car. Co-conspirator Jacob Perricone was seated next to appellant’s father in the front passenger seat. Just after the appellant’s father pulled the car in adjacent to the agent, appellant got in the car and sat down directly behind his father, who was in the driver’s seat.

The driver spoke first. Sounding angry, he told the agent, “We were just about to leave.” Then Jacob Perricone stated that he wanted to taste the drugs. Again the agent demanded to see the money. Perricone pulled a white business envelope from his jacket pocket and fanned out a large number of bills for the agent to see. Agent Pendell asked Perricone whether he wanted the half pound or the quarter pound, to which Perricone replied, “We’ll take the whole half pound.” Carrying the white plastic shopping bag containing the drugs, Agent Pendell emerged from his car and stood next to the other car. Perricone motioned for Pendell to get in the back seat.

Agent Pendell was hesitant to get in the back seat and he backed up and looked around. Jacob Perricone said to the agent, “Don’t worry. We’ve been doing this for years.” At that point Agent Pendell signalled the rest of the narcotics enforcement team and the three men were arrested. When the detectives approached the car, Jacob Perricone threw the envelope on the floor of the car on the driver’s side. Later it was learned that the envelope contained $6800.00, more than was necessary to cover the $4500.00 cost of the half pound of methamphetamine.

The drugs which were the subject of the negotiations between Agent Pendell, John A. Timer, Jr., John J. Timer and Jacob Perricone had been in police possession since February, 1987, apparently obtained as a result of another narcotics operation. At that time, the drugs were tested by Vincent Cordova, a chemist employed in the criminalistics section of a medical laboratory. Cordova testified that the drugs in question tested positive for methamphetamine. He stated that out of the approximately 437.6 grams of white powdery substance, fourteen percent (14%) was pure methamphetamine. In response to questions by defense attorneys, Cordova acknowledged that there is a slight degree of chemical breakdown in the purity of methamphetamine over time. Cordova confirmed that he had done some experimentation and that over a period of five years a five percent loss of the methamphetamine can occur. When asked on cross-examination whether the substance could break down to the point where “there’s no longer any methamphetamine within this powder”, Cordova reiterated the results of his testing. He testified that he “doubtfed] very much” that such a loss could occur.

In light of the above noted testimony, appellant argues that the Commonwealth’s evidence failed to show that the controlled substance which the co-conspirators here agreed to purchase was methamphetamine. This argument is based on the chemical expert’s testimony that over a period of years a small percentage of breakdown may occur in the chemical composition of the drug. However, as was indicated above, the expert’s testimony was unequivocal that the testing he had done revealed only that over a five year period, at most a five percent breakdown may be detected. The time lapse in question here was only three years and, in any event, the expert disputed the defense’s speculation that the drugs could be diminished to the point of disappearance within that time period. We agree with the trial court’s conclusion that, given the expert’s testimony, the possibility of chemical dissipation of the methamphetamine is of no significance.

Appellant also argues that the Commonwealth’s evidence was insufficient because it failed to disprove impossibility. The crux of the argument, which appellant raises without support, is that since the undercover agent did not intend actually to sell the drugs to appellant, he and his companions could not have conspired to possess them. This argument is wholly without merit. The evil against which the conspiracy law is aimed is the agreement of two or more persons to act in concert for a criminal purpose. The fact that the criminal purpose would not be accomplished as a factual matter does not bar nor diminish the capacity and the intent to agree to accomplish the criminal object. The police officer’s knowledge that he would not relinquish the drugs to appellant does not present a defense to the formation of the conspiratorial agreement and the overt steps the conspirators took toward its accomplishment. In Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983), cert. denied, 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986), the supreme court rejected appellant’s argument that he should have been permitted to raise the defense of impossibility to the crimes of bribery and conspiracy. The factual impossibility was based on the asserted lack of power on the part of the bribe offeree to perform the desired favor. The court stated: “Factual impossibility is not an available defense under the Crimes Code____” 503 Pa. at 587, 470 A.2d at 72.

Appellant also contends that the evidence at trial established that he was entrapped as a matter of law and that therefore his conviction cannot stand. He alleges that the meeting was arranged by improperly coercive police tactics. This argument offers no basis for relief. The standard for evaluating whether entrapment has occurred is an objective one. Application of the entrapment test was illustrated recently by this court, en banc, in Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990), appeal denied, 526 Pa. 648, 585 A.2d 468 (1991). In Wright, we emphasized that the objective test for entrapment focusses on the conduct of the police to determine whether the conduct was designed to provoke criminal behavior in those innocently disposed. The evidence in Wright, which was found to establish entrapment as a matter of law, involved police conduct which utilized persuasive techniques condemned by the court. The police in Wright used an informant who feigned friendship with the defendant and convinced the defendant to purchase marijuana for him as a favor. The informant, posing as a friend, supplied the money for the drugs to the defendant and fabricated stories to make the defendant believe that the informant could not buy the marijuana himself. Therefore, the defendant agreed to buy the drugs for his “friend” with his “friend’s” money and, as the court found, did not obtain any personal benefit from the transaction.

Appellant’s reliance on Wright is misplaced, however, because the instant case is not comparable. The most that can be said of the informant’s involvement here is that he was the intermediary between the police and appellant and the other potential purchasers. Other than to “set up” the meeting for the drug purchase, there is no evidence in the record that the informant was more deeply involved. He did not supply the money for the drug purchase. In fact there is no indication that the purchase would provide the informant with drugs or profit, or any other gain at all. The purchase in no way was seen as a “favor” to the informant. According to appellant’s own testimony, the friendship he developed with the informant revolved around all the “normal stuff” but included a mutual element of drugs “as far as [appellant was] concerned and as far as [the informant] was concerned”. This situation in no way approximates the coercive police conduct condemned in Wright.

Appellant also argues that the trial court erred in admitting Jacob Perricone’s statement made during the transaction with the agent that “We’ve been doing this for years”. Appellant insists that this statement was evidence of other crimes and was inadmissible since it did not fall within the various recognized exceptions to the rule prohibiting such evidence. The argument is meritless. As the trial court correctly found, Perricone’s statement to the agent was admissible because it was made by a co-conspirator during the commission of the crime. During the course of a conspiracy, each conspirator is considered the agent of the other, and thus a statement by one is an admission by all. See Commonwealth v. Stoltzfus, 462 Pa. 43, 58-59, 337 A.2d 873, 880-881 (1975); Commonwealth v. Holloway, 429 Pa. 344, 346, 240 A.2d 532, 533-534 (1968). If the statement is spoken “in furtherance of and during the continuance of the common purpose” of the conspiracy, it is admissible against all. Commonwealth v. Scarborough, 313 Pa.Super. 521, 528, 460 A.2d 310, 314 (1983). Appellant’s contention that the statement at issue was not made in furtherance of the conspiracy is, in the words of the trial court, “clearly specious”. Perricone made the statement in the course of negotiating with the agent for a taste of the drugs he and the others were about to purchase. The reason Perricone said what he did was to persuade the agent to get into the car and conclude the “deal” which was the central and common purpose of their meeting. The statement was clearly admissible.

Finally, appellant argues that the trial court erred in failing to grant a mistrial when the prosecutor asked him on cross-examination whether “there was a period of time in which [he was] involved in an attempt to set up another deal prior to this.” An objection to the question was sustained immediately and the question was not answered. The trial court denied the defense motion for a mistrial. Appellant now claims that he is entitled to a new trial. We do not agree. Clearly, not every arguably improper reference to prior criminal activity requires the grant of a mistrial. See, e.g. Commonwealth v. Morris, 522 Pa. 533, 564 A.2d 1226 (1989); Commonwealth v. Carr, 370 Pa.Super. 1, 535 A.2d 1120 (1987). Here the question was never answered and the mere asking of it cannot constitute irremediable prejudice. The trial court, sitting without a jury and having sustained the objection, will not be presumed to have given the passing reference any weight whatsoever.

Judgment of sentence affirmed.


author: CERCONE, Judge:

text:
    609 A.2d 576
    COMMONWEALTH of Pennsylvania v. James WARRICK, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 10, 1992.
    Filed June 26, 1992.

      Susan V. Kahn, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal nunc pro tunc from a judgment of sentence entered after appellant, James Warrick, pled guilty to the crime of escape. We affirm.

The charge underlying the instant appeal stems from appellant's behavior after judgment was rendered at a criminal trial held in 1983. The Honorable Mitchell Lipschutz found appellant guilty of narcotics possession on December 5,1983. Immediately after the verdict was handed down, appellant ran out of the courtroom and down the stairs of the City Hall. However, police officers caught appellant before he left the building and returned him to the courtroom. Judge Lipschutz then found appellant in direct criminal contempt of court and sentenced him to serve a term of six (6) months imprisonment on that charge.

The District Attorney’s Office later charged appellant with escape, based on the same facts. Appellant’s motion to quash on double jeopardy grounds was denied by the trial court. The Superior Court affirmed this decision, and subsequently denied reargument on March 6, 1986. Commonwealth v. Warrick, 344 Pa.Super. 611, 497 A.2d 259 (1985). On April 17, 1986, appellant pled guilty to charges of escape. The Honorable Eugene Gelfand thereafter sentenced appellant to serve three and one-half (3-V2) to seven (7) years on this charge.

No motion to modify sentence was filed, although appellant filed a notice of appeal. The direct appeal was dismissed in 1988 for counsel’s failure to file a brief. Appellant subsequently filed a collateral attack and his direct appeal rights were reinstated nunc pro tunc by the Honorable Francis A. Biunno. The instant appeal followed in which appellant submits one question for our review: can the conduct underlying a conviction for criminal contempt be used to support a subsequent prosecution for escape without violating the protection against double jeopardy provided by the United States Constitution?

The issue raised by appellant has already been presented before this court in this case. Commonwealth v. Warrick, supra. In 1985, we found that the joinder of appellant’s criminal contempt charge with criminal charges stemming from the same incident “was not required by either 18 Pa.C.S.A. § 110 (when prosecution barred by former prosecution for different offense) or by the ‘compulsory joinder rule’ of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973) (Campana I), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (Campana II).” Commonwealth v. Warrick, 344 Pa.Super. at 613, 497 A.2d at 260. Because appellant was summarily held in contempt, we held that double jeopardy did not bar his subsequent trial for escape. Id., 344 Pa.Superior Ct. at 613-14, 497 A.2d at 260.

We could affirm appellant’s conviction on the basis of our prior ruling. We note, however, that the Double Jeopardy argument presented by the instant appeal has a different basis than the claim previously considered by this court. So that there will be no doubt that appellant’s conviction for escape was proper, we shall address his current argument on its merits. Appellant grounds his present double jeopardy claim on a ruling handed down by the United States Supreme Court considerably after our prior decision in this case. See Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Grady holds that “the Double Jeopardy Clause [of the federal Constitution] bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in the prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Id. at 521, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. Instantly, the same conduct gave rise to appellant’s convictions for both contempt and escape. However, we find that Grady is inapposite to the present case because summary criminal contempt is by its nature a different type of offense than other crimes, e.g., escape. See Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985) (explaining the policies advanced by refusing to require joinder of contempt with any additional criminal charges to which the facts may give rise).

In Allen, the Pennsylvania Supreme Court stressed the fact that criminal contempt consists of acts tending to lessen the dignity or impede the process of the court. Id., 506 Pa. at 513, 486 A.2d at 369. Thus, summary criminal contempt proceedings are instituted to vindicate the authority of the court and must be viewed as a necessary tool for deterring abuse of the judiciary. Id. This function demands that a judge not be required to consider the consequences of foreclosing subsequent criminal prosecutions when sanctioning a contemnor for his actions. Id.

We are cognizant of the fact that Commonwealth v. Allen was decided without the benefit of Grady v. Corbin and was based solely on the rule set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). However, we find nothing in Grady v. Corbin which negates the careful balancing of society’s needs versus the constitutional rights of a defendant which was articulated by the Supreme Court of Pennsylvania in the rationale underlying Allen. Furthermore, Grady explicitly recognizes that an exception to its double jeopardy analysis may exist where the government is unable to proceed on the more serious of two charges for various administrative or procedural reasons. Grady v. Corbin, 495 U.S. at 516 n. 7, 110 S.Ct. at 2090 n. 7, 109 L.Ed.2d at 561 n. 7. The necessity of providing a court with the immediate means to protect its dignity and its ability to properly conduct judicial proceedings must be deemed at least as important as the administrative and procedural concerns recognized by Grady.

We note, moreover, that the United States Supreme Court has severely limited the scope of Grady by its ruling in US. v. Felix, — U.S. -, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). The question before the Court in Felix was whether the Double Jeopardy Clause prohibits a separate prosecution for conspiracy in addition to a prosecution for other crimes based upon the conduct underlying the conspiracy charge. The Court concluded that the Double Jeopardy Clause creates no bar in such a case.

In Felix, the defendant operated a facility in Beggs, Oklahoma at which he manufactured methamphetamine in violation of applicable federal statutes. Because law enforcement officers were in pursuit of his activities, he moved his operation to Joplin, Missouri where he continued manufacturing methamphetamine. He was tried and found guilty for Missouri activities and his conviction and sentence were affirmed by the court of appeals for the Eighth Circuit. Subsequently he was charged in Oklahoma with both conspiracy and manufacturing counts in connection with his operation at Beggs, Oklahoma. Although he was tried and convicted, a divided panel of the Court of Appeals for the Tenth Circuit reversed most of the counts on which he had been found guilty because of its view that in light of the prior prosecution, trial on these counts constituted double jeopardy in violation of the Fifth Amendment.

The Supreme Court of the United States granted certiorari on the Tenth Circuit’s decision. In Felix, the Supreme Court holds that the prosecution of a defendant for conspiracy, where the same conduct was relied upon by the prosecution for proof of conspiracy and substantive offenses was basically the same conduct on which the defendant had been previously convicted, does not violate the double jeopardy clause. The Supreme Court noted that the Tenth Circuit began its opinion by quoting language from Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), to the effect that the Double Jeopardy Clause bars a subsequent prosecution where the government, “ ‘to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.’ ” See U.S. v. Felix, — U.S. at-, 112 S.Ct. at 1381, 118 L.Ed.2d at 32, quoting 926 F.2d 1522, 1527 (1991) (quoting Grady v. Corbin, supra, 495 U.S. at 521, 110 S.Ct. at 2093). However, the Supreme Court in Felix holds that the Court of Appeals was incorrect in its assumption that if the government offers evidence of conduct to prove an offense at one trial resulting in conviction, it is offensive to the double jeopardy rule to use the same conduct as the basis of proof of another offense presented at a second trial. The Court went on to say “our precedents hold that a mere overlap in proof between two prosecutions does hot establish a double jeopardy violation.” U.S. v. Felix, — U.S. at -, 112 S.Ct. at 1382, 118 L.Ed.2d at 34. The Felix Court further explained that the reliance by the Court of Appeals on language in Grady v. Corbin “is an extravagant reading of Grady, which disclaimed any intention of adopting a ‘same evidence’ test.” Id. The Supreme Court also said that its decision in Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), “drove home this point.”

In Felix, the Supreme Court explicitly warned against taking language in Grady v. Corbin out of its proper context to support a defense of double jeopardy. Id. at -, 112 S.Ct. at 1383, 118 L.Ed.2d at 35. The Court cautioned against reading Grady v. Corbin too literally so as to unjustifiably expand federal double jeopardy rights. Id. at-, 112 S.Ct. at 1383-84, 118 L.Ed.2d at 35-36.

Basically, this case is not only about the effect of conspiracy vis-a-vis double jeopardy. The salient difference between Grady v. Corbin and United States v. Felix, as they apply to all cases involving multiple crimes, is that Grady would preclude a second trial where the same conduct underpins the commission of two or more crimes and would thus preclude a second trial on the remaining crime or crimes. United States v. Felix, on the other hand, holds that conduct is not the criterion in double jeopardy considerations but instead the criterion lies in the difference existing in the elements of the offenses arising out of the same incident. Therefore, where the fact necessary in the proof of one offense is different from the fact necessary in the proof of another offense arising out of the same incident, double jeopardy does not apply. This is in consonance with the provision in the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution which provides, “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” In light of Felix, we conclude that there is no justifiable basis under Grady upon which we can distinguish Commonwealth v. Allen, supra. Until either the Pennsylvania Supreme Court or the United States Supreme Court clearly indicates that a conviction of direct criminal contempt triggers double jeopardy protections for additional criminal charges based on the same conduct, we cannot grant the type of relief sought by appellant.

Judgment of sentence affirmed.

WIEAND, J. concurs in the result.

      . 18 Pa.C.S.A. § 5121(a).

      . The certified record is unclear as to whether appellant's petition was filed under the Post Conviction Hearing Act ("PCHA”) or the Post Conviction Relief Act (“PCRA”). The PCHA was modified in part, repealed in part and reenacted as the PCRA, effective April 13, 1988. The new provision applies to all actions for collateral relief instituted on or after that date. See 42 Pa.C.S.A. §§ 9541-9546.

      . The precise question raised instantly, whether appellant’s double jeopardy rights were violated, was decided in his previous appeal. The issue is therefore covered by res judicata or the “law of the case" doctrine. Commonwealth v. Lenig, 403 Pa.Super. 455, 459-60, 589 A.2d 700, 702-03 (1991), allocatur denied, 528 Pa. 636, 598 A.2d 993 (1991). “Under the doctrine of ‘law of the case,’ where an appellate court has considered and decided a question on appeal, that Court will not, in a subsequent appeal of another phase of the same case, reverse its previous ruling, even though convinced it was erroneous.” Accord Commonwealth v. Goldblum, 498 Pa. 455, 472-73, 447 A.2d 234, 243 (1982) (appellant cannot relitigate on direct appeal from the judgment of sentence an issue previously appealed in the same case). Although it appears that the United States Supreme Court has not spoken on this issue, both the Fifth and Eighth Circuits have determined that rejection of a double jeopardy claim on a pre-trial appeal is the law of the case. See U.S. v. Mize, 820 F.2d 118, 119-20 (5th Cir.1987), cert. denied, 484 U.S. 943, 108 S.Ct. 328, 98 L.Ed.2d 355 (1987) (rejection of double jeopardy claim on appeal from first trial is the law of the case); U.S. v. Grabinski, 727 F.2d 681, 687 (8th Cir.1984).

      . As an intermediate appellate court, the Superior Court is bound by the decisions of the Pennsylvania Supreme Court. Commonwealth v. Jones, 388 Pa.Super. 22, 30, 564 A.2d 983, 987 (1989) (en banc), allocatur granted, 526 Pa. 630, 584 A.2d 313 (1990); Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978). Absent a legally relevant distinction between a previous decision by the Pennsylvania Supreme Court and a case before the Superior Court, we are obliged to follow the mandate of the prior Supreme Court ruling. See, e.g., Malinder v. Jenkins Elevator & Mach. Co., 371 Pa.Super. 414, 538 A.2d 509 (1988) (en banc). See also Commonwealth v. Scoleri, 399 Pa. 110, 130 n. 16, 160 A.2d 215, 225 n. 16 (1960), cert. denied, 364 U.S. 849, 81 S.Ct. 93, 5 L.Ed.2d 72 (1960), quoting Cardozo, J. in Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360, 366 (1932) (a state may, without offending the federal Constitution, provide that "decisions of its highest court, although later overruled, are law nonetheless for intermediate transactions").


author: JOHNSON, Judge. POPOVICH, Judge,

text:
    609 A.2d 809
    COMMONWEALTH of Pennsylvania, Appellant, v. Jack A. WHITMYER.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1992.
    Filed May 19, 1992.
    Reargument Denied July 17, 1992.

      Jeffrey Baxter, Asst. Dist. Atty., Carlisle, for the Com., appellant.
    Peter B. Foster, Harrisburg, for appellee.
    Before McEWEN, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge.

The Commonwealth appeals from an order suppressing all evidence gained as a result of a single vehicle stop. The stop occurred on an exit ramp of a six-lane divided highway. The arresting officer intended to warn the vehicle operator about his “erratic driving” and cite him for traveling at an unsafe speed, a summary offense. We are asked to review the standard applicable in assessing the legality of a traffic stop under these circumstances. We conclude that the suppression hearing court correctly applied the law with respect to the circumstances under which motor vehicles may be lawfully stopped for a summary offense. We accordingly affirm the order which suppressed the evidence.

In reviewing the grant of a motion to suppress, our responsibility is (1) to determine whether the record supports the factual findings of the court below and (2) to evaluate the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Bull, 382 Pa.Super. 559, 555 A.2d 1341 (1989). In making these determinations, the reviewing court must consider only the evidence of 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. Robinson, 518 Pa. 156, 159, 541 A.2d 1387, 1389 (1988). While we are bound by the suppression court’s findings of fact if supported by the record, we are not bound by the court’s legal conclusions which are drawn from the facts of the case. Commonwealth v. Lagana, 517 Pa. 371, 375-76, 537 A.2d 1351, 1353 (1988). When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse only if there is an error in the legal conclusions drawn from those factual findings. Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985).

The distinguished trial judge, the Honorable Edgar B. Bayley, has set forth the facts as follows:

On October 30, at approximately 10:20 p.m., Trooper Kambic was in uniform and operating a marked Pennsylvania State Police vehicle traveling south on Interstate 81, approaching the Susquehanna River bridge. Ahead of him was a two-lane ramp for southbound traffic entering the highway on the bridge from Front Street in Dauphin County. The two lanes of the ramp merge into a single lane that then merges into the western most lane of three southbound lanes on the bridge. At a point where the two lanes of the entrance ramp merge into one narrowing lane, there is a solid white line between that merging lane and the western most travel lane on the bridge. After a short distance the white line becomes a broken white line as the entrance ramp further narrows into the through lane on the bridge.
Trooper Kambic observed defendant’s vehicle traveling behind another vehicle as the two cars made their way from the entrance ramp onto the single merging lane on the bridge. He then saw defendant drive over the solid white line into the western most southbound lane of the bridge and pass the vehicle in front of him before that vehicle merged into the same lane. There was no evidence, however, that defendant’s movement into the southbound lane was careless or reckless, or that he interfered with the trooper’s vehicle or any other vehicles proceeding south on the bridge, or with the vehicle that was ahead of him at the point when he passed that vehicle.
As defendant proceeded across the bridge that is seven tenths of a mile in length, Trooper Kambic got behind him. Utilizing his vehicle speedometer for two tenths of a mile, he attempted to ascertain his speed; however, defendant slowed and proceeded onto the Marysville exit ramp at the southern end of the bridge in Cumberland County.
Trooper Kambic testified that he stopped defendant on the exit ramp, intending to warn him about his “erratic driving with respect to his entrance onto the bridge,” and cite him for traveling at an unsafe speed at the south end of the bridge. Defendant got out of his car but the trooper, for safety reasons, asked him to get back inside. When defendant got back into the car he rolled down the driver’s side window at which time the trooper smelled a strong odor of burnt marijuana. The trooper then ordered defendant out of the car. He told him he smelled marijuana and was going to pat him down and search the vehicle. He discovered a film canister in defendant’s right jacket pocket that contained marijuana. The pocket also contained rolling paper (paraphernalia). Defendant was transported to a hospital where he underwent a urine test for the detection of controlled substances in his system.

Opinion, Bayley, J., June 17, 1991, pages 1-3.

Judge Bayley, after a full hearing, ordered the evidence suppressed. He ruled:

In order to legally stop a single vehicle for a summary violation of the Vehicle Code, a police officer “must have probable cause based on specific facts which indicate to him either the vehicle or the driver is in violation of the code.” Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973).

Opinion, Bayley, J., at pages 3-4. The suppression hearing court went on to conclude:

... [T]here is no evidence to conclude that Trooper Kambic had probable cause to believe that defendant was driving at an unsafe speed. Accordingly, since there was no legal justification to stop defendant, all evidence gained as a result of the stop must be suppressed.

Id. at page 7.

In the Summary of Argument portion of its Brief for Appellant, at page 6, the Commonwealth urges us to reverse the suppression order because:

The lower court erroneously applied a probable cause standard in determining whether Trooper Kambic’s stop of the defendant was justified. The proper standard in assessing the legality of a traffic stop in this case is whether the officer had reasonable suspicion to believe that the defendant was violating the Vehicle Code, based on articulable facts.

We are satisfied that Judge Bayley correctly applied the law with respect to when motor vehicles may be lawfully stopped. Both Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973) and Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975), as announced by our Supreme Court, remain the law of this state in motor vehicle cases. The Commonwealth has differed more with the conclusions drawn by Judge Bayley from his application of the law rather than with the trial court’s pronouncement of the law itself. Since we believe that the trial court’s conclusions are amply supported by the evidence and the law, we will affirm.

In Commonwealth v. Swanger, supra, our Supreme Court was considering whether the stop or seizure of a motor vehicle was unreasonable and, therefore, constitutionally impermissible. Speaking through Justice Eagen, the Court declared:

We, therefore, hold before a police officer may stop a single vehicle to determine whether or not the vehicle is being operated in compliance with The Vehicle Code, he must have probable cause based on specific facts which indicate to him either the vehicle or the driver is in violation of the code.

453 Pa. at 115, 307 A.2d at 879.

In deciding Swanger, our Supreme Court was well aware of the decision of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and in fact cited to, and quoted from, the Terry opinion at length. Swanger, supra, 453 Pa. at 112-113, 307 A.2d at 878-79.

That this was not careless language by Justice Eagen is borne out by its citation, without dissent, in Commonwealth v. Murray, supra. There, the Court had to consider the legality of the stop of an automobile in which the appellant was a passenger. In reversing the previous order of this Court which had affirmed the judgment of sentence, our Supreme Court stated, speaking through then-Justice [now Chief Justice] Nix:

If the alleged basis of a vehicular stop is to permit a determination whether there has been compliance with the Motor Vehicle Code of this Commonwealth, it is encumbent upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code. Commonwealth v. Swanger, supra, 453 Pa. at 115, 307 A.2d at 879; see also Commonwealth v. Boyer, 455 Pa. 283, 286, 314 A.2d 317, 318 (1974) (footnote omitted).

460 Pa. at 58-59, 331 A.2d at 416-17.

In contending that the trial court “erroneously applied a probable cause standard”, the Commonwealth fails to distinguish between the concepts “probable cause to arrest” and “probable cause to believe.” The Commonwealth asserts that the legality of a single vehicle traffic stop is measured by whether the officer had “reasonable suspicion to believe” that the driver was violating the Vehicle Code. That articulation of the rule differs somewhat from that of our Supreme Court: probable cause to believe that the driver was in violation of some provision of the Vehicle Code. Murray, supra, 460 Pa. at 58-59, 331 A.2d at 416-17.

Once it is understood that our Supreme Court uses the term “probable cause” in this context to mean “probable cause to believe the Vehicle Code has been violated,” the compatibility of the terms is immediately apparent.

It must be borne in mind that the United States Supreme Court limited its use of the term “probable cause” to situations warranting arrest in its analysis in Terry v. Ohio. In Terry, the petitioner sought to argue that no search of the person should be permitted until the situation evolves to a point where there is probable cause to make an arrest. In responding to that line of reasoning, the Court, speaking through Chief Justice Warren, said:

There are two weaknesses in this line of reasoning however. First, it fails to take account of traditional limitations upon the scope of searches, and thus recognizes no distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons. The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon is also justified on other grounds, and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation____
Petitioner’s reliance on cases which have worked out standards of reasonableness with regard to “seizures” constituting arrests and searches incident thereto is thus misplaced____
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime____ And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Terry v. Ohio, 392 U.S. at 25-27, 88 S.Ct. at 1882-83, 20 L.Ed.2d at 908-909 (citations omitted, emphasis added).

There is no inconsistency between the standard set forth in Terry to justify an intrusion short of an arrest, that is to say, a “Terry stop,” and the standard enunciated by our state Supreme Court for a single vehicle stop: probable cause to believe, based on specific articulable facts possessed by the stopping officer at the time of the questioned stop, that the vehicle or the driver was in violation of some provision of the Vehicle Code. Murray, supra, 460 Pa. at 58-59, 331 A.2d at 416-17.

The Commonwealth’s contention that the proper standard depends upon “reasonable suspicion to believe" appears to be a blending, albeit unintentional, of two disparate concepts. The claimed standard is not an express holding in Terry set forth above and is not found in any of the pronouncements of our state Supreme Court. The Terry court was quite clear in holding:

And in determining whether the officer acted reasonably in such circumstances [where the officer’s safety or that of others was in danger], due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909.

In Delaware v. Prouse, 440 U.S. 648, 655, 99 S.Ct: 1391, 1397, 59 L.Ed.2d 660, 668 (1979), the United States Supreme Court referred to alternative grounds to support an investigative stop of a motor vehicle. In Prouse, the Court cited to United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), and referred to that earlier case as having considered “the legality of investigative stops of automobiles where the officers making the stop have neither probable cause to believe nor reasonable suspicion that either the automobile or its occupants are subject to seizure under the applicable criminal laws.” Delaware v. Prouse, 440 U.S. at 655, 99 S.Ct. at 1397, 59 L.Ed.2d at 668 (emphasis added).

We have unearthed nothing in the motor vehicle cases decided by either the United States Supreme Court or the Pennsylvania Supreme Court which would support the use of the phrase “reasonable suspicion to believe” as suggested by the Commonwealth on this appeal.

Finally, our Vehicle Code sets forth a standard defining the authority of an investigating police officer as follows:

§ 6308. Investigation by police officers
(b) Authority of police officer.—Whenever a police officer ... has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b).

If we apply the standard as articulated by the United States Supreme Court, as restated by our state Supreme Court, or as set forth in the statute, the analysis and result by the distinguished trial court remains unassailable. The critical issue is whether the trooper had articulable and reasonable grounds to suspect, or probable cause to believe, that Jack A. Whitmyer was not driving his vehicle at a safe speed, thereby violating 75 Pa.C.S. § 3361. When we review Judge Bayley’s analysis, based upon the undisputed facts, we find no fault with his conclusions.

The trial court found as fact that Trooper Kambic stopped Whitmyer on the exit ramp, intending to warn him about what Kambic believed was Whitmyer’s “erratic driving with respect to his entrance onto the bridge,” and to cite him for traveling at an unsafe speed. The Commonwealth does not explain the facts from the record which led it to accept Trooper Kambic’s subjective conclusion that Whitmyer was traveling in an “erratic” manner. The trial court does provide us with its reasoning, which we find persuasive, on the issue of alleged “erratic” driving:

There is no evidence that defendant committed a summary offense when he drove onto the Interstate bridge from the entrance ramp. When defendant entered the highway he did not fail to yield to any oncoming vehicle and he did not pass the vehicle in front of him in a posted no passing zone. Driving over the white line into the through traffic lane was not a summary offense. See 75 Pa.C.S.A. § 3309 (Purdon 1977). Absent probable cause to believe that the vehicle or the driver is in violation of the Vehicle Code, there is no legal justification to stop a vehicle and warn an operator about his driving.

Opinion, Bayley, J., at page 4 (emphasis in original).

We turn, then to whether there was probable cause to believe, or whether Trooper Kambic had articulable and reasonable grounds to suspect, that Whitmyer was not driving his vehicle at a safe speed, thereby violating 75 Pa.C.S. § 3361. That section of the Vehicle Code provides:

§ 3361. Driving vehicle at safe speed
No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around [a] curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

To reach its conclusion that Trooper Kambic had reasonable grounds to “suspect” that Whitmyer was traveling at an unsafe speed, the Commonwealth must rely only upon two factors: (1) Trooper Kambic’s testimony that Whitmyer entered the highway in an “erratic” manner, and (2) the trooper’s testimony that he followed Whitmyer for two-tenths of a mile at an estimated speed of seventy miles per hour in a fifty-five miles per hour zone, before Whitmyer slowed and exited the six-lane divided highway.

The Commonwealth has not specified, in its Brief, what portion of § 3361, driving vehicle at safe speed, Whitmyer has violated. The trial court, on the other hand, has set forth its analysis supporting its conclusion that any belief in the alleged violation of the section would be unreasonable. Whether the issue is framed in terms of probable cause to believe a violation has occurred or reasonable and articulable grounds to suspect a violation of the Vehicle Code, or any other standard, the result must be the same.

In granting the motion to suppress, Judge Bayley ruled: Other than Trooper Kambic estimating defendant’s speed at seventy miles per hour on a three-lane interstate highway for a period of two tenths of a mile (there was no testimony that defendant was changing lanes or traveling too close to another vehicle), the only other evidence bearing upon a possible Section 3361 violation, was the trooper’s testimony that the traffic at the time was medium to heavy. That conclusion is of no legal significance where defendant’s speed was only estimated at fifteen miles per hour over the speed limit on a three-lane interstate highway at a time when his vehicle was not changing lanes, traveling too close to another vehicle, or presenting a potential hazard to any other vehicle or person.
A violation of Section 3361 of the Vehicle Code requires more than just traveling at a speed over the posted speed limit. Interpreting a similar section that preceded Section 3361, the Superior Court, in Commonwealth v. Hoke, 223 Pa.Superior Ct. 319 [298 A.2d 913] (1972), observed that “[w]hether one is driving too fast for conditions is a relative matter, dependent not on any specific speed but on all the existing circumstances____” See also Commonwealth v. Way, 170 Pa.Superior Ct. 109 [84 A.2d 225] (1951). The same analysis has been applied to the current Vehicle Code Section 3361 in Commonwealth v. Vishneski, 380 Pa.Superior Ct. 495 [552 A.2d 297] (1989). In Vishneski, the Superior Court stated:
The arresting officer , described Route 202 North as a limited access highway having a posted speed limit of fifty-five miles per hour. He further explained that the section of Route 202 North between the Paoli Pike on-ramp and Route 322 exit comprises of three lanes and is approximately one-tenth of a mile in distance.
The trial record further indicates that there was a truck traveling on Route 202 North at the same time appellant was traveling on the route. Appellant entered the highway from the Paoli Pike on-ramp and exited at the Route 322 exit. It is apparent from the record that appellant’s speed was unreasonable given the conditions of the highway. Appellant was traveling at 84.5 miles per hour in a 55 miles per hour zoned area where traffic must merge and exit while competing with the northbound flow of traffic. In addition, we note that appellant was entering and exiting the northbound highway at a high rate of speed within a distance of approximately one-tenth mile. The potential for hazards and conditions rendering traveling at a speed of 84.5 miles per hour unreasonable is clearly supported by the evidence.
Interstate 81 where defendant was driving was a six-lane divided interstate highway. There was no intersecting or merging traffic. Unlike Vishneski, there is no evidence to conclude that Trooper Kambic had probable cause to believe that defendant was driving at an unsafe speed. Accordingly, since there was no legal justification to stop defendant, all evidence gained as a result of the stop must be suppressed. Commonwealth v. Scherzer, 40 Cumberland L.J. 374 (1990), affd, 410 Pa.Superior Ct. 656, [590 A.2d 377].

Opinion, Bayley, J., at pages 5-7 (footnotes omitted).

Judge Bayley correctly found that there was no legal justification to stop Whitmyer on a belief that he was driving at an unsafe speed. We must accept his conclusion that all evidence gained as a result of that stop must be suppressed. Accordingly, we affirm the order which suppressed the evidence.

Order affirmed. Jurisdiction relinquished.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

Upon review of the evidence before us, I am convinced that Trooper Thomas Kambic had “articulable and reasonable grounds to suspect, or probably cause to believe,” that appellee Jack A. Whitmyer was not driving his vehicle at a safe speed, thereby, violating 75 Pa.C.S.A. § 3361.

In reviewing the propriety of a suppression order, we are limited primarily to questions of law and are bound by the suppression court’s findings of fact if those facts are supported by the record. Commonwealth v. Elliott, 376 Pa.Super. 536, 542, 546 A.2d 654, 657 (1988), allocatur denied, 521 Pa. 617, 557 A.2d 721 (1989); Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212 (1986). In determining whether those findings are supported by the record, we consider only the evidence of appellee and so much of the evidence of appellant which remains uncontradicted. Elliott, 376 Pa.Superior Ct. at 543, 546 A.2d at 657; White, 358 Pa.Superior Ct. at 123, 516 A.2d at 1212.

With those rules in mind, we must determine whether Trooper Kambic had articulable and reasonable grounds to suspect appellant was violating § 3361 of the Motor Vehicle Code. See Opinion of the Majority, p. 9; see also 75 Pa.C.S.A. § 6308(b) (“Whenever a police officer ... has articulable and reasonable grounds to suspect a violation of [the Motor Vehicle Code], he may stop a vehicle____”); Elliott, 376 Pa.Superior Ct. at 545, 546 A.2d at 658 (“a police officer may stop a motor vehicle if he or she reasonably believes that a provision of the Motor Vehicle Code is being violated.”). The majority has concluded that the trooper did not have reasonable grounds to suspect appellee was traveling at an unsafe speed. However, I am convinced that the majority and the lower court are incorrect.

Instantly Trooper Kambic testified that he stopped appellee to cite him for a violation of 75 Pa.C.S.A. §.3361, Driving vehicle at safe speed, which provides:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit a driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and traffic or by reason of weather or highway conditions.

Trooper Kambic stated that he followed appellant for two-tenths of a mile at seventy (70) miles per hour in a fifty-five (55) miles per hour zone, before appellant exited the highway. Further, the officer testified that appellant entered the highway in an “erratic” manner. He also testified that the traffic on the highway was medium to heavy at the time. I believe such evidence clearly raises articulable and reasonable grounds to suspect appellant was violating 75 Pa.C.S.A. § 3361.

In reaching my decision I considered 75 Pa.C.S.A. § 3362(a) which provides:

(a) General Rule.—Except when a special hazard exists that requires lower speed for compliance with section 3361 (relating to driving vehicle at safe speed), the limits specified in this subsection or established under this subchapter shall be maximum lawful speeds and no person shall drive a vehicle at a speed in excess of the following maximum limits:
(1) 35 miles per hour in any urban district.
(2) 55 miles per hour in other locations.
(3) Any other maximum speed limit established under
this subchapter.

Trooper Kambic testified that appellee was traveling at approximately seventy miles per hour. Logically, if the legislature has established fifty-five miles per hour as the maximum lawful speed, appellee’s traveling at seventy miles per hour cannot be considered safe. Cf., Marks v. Mobil Oil Corp., 562 F.Supp. 759 (D.C.1983), affirmed 727 F.2d 1100 (Under Pennsylvania law, traveling in excess of the 55 mile per hour speed limit is negligence per se).

In addition, I considered the decision of this Court in Commonwealth v. Vishneski, 380 Pa.Super. 495, 552 A.2d 297 (1989), appeal denied 524 Pa. 620, 571 A.2d 382 (1989), wherein, we affirmed the conviction of a driver for violating 75 Pa.C.S.A. § 3361. In that case, the officer testified that the driver was traveling 84.5 miles per hour. He described Route 202 North as a limited access highway with a speed limit of 55 miles per hour. He further explained that the section of Route 202 North between the Paoli Pike on-ramp and the Route 322 exit is three lanes wide and is approximately one-tenth of a mile in distance. Upon reviewing the facts, we stated:

... It is apparent from the record that appellant’s speed was unreasonable given the conditions of the highway. Appellant was traveling at 84.5 miles per hour in a 55 mile per hour zoned area where traffic must merge and exit while competing with the northbound flow of traffic. In addition, we note that appellant was entering and exiting the northbound highway at a high rate of speed within a distance of one-tenth mile. The potential for hazards and conditions rendering traveling at a speed of 84.5 miles per hour unreasonable is clearly supported by the evidence.

Vishneski, 380 Pa.Superior Ct. at 503, 552 A.2d at 301.

The similarity between the facts of Vishneski, supra, and the case sub judice are remarkable. I cannot envision that in one case, the evidence is sufficient to sustain a conviction, while in the other substantially similar evidence is not even sufficient to raise “articulable and reasonable grounds to suspect” a violation of the same statute. Certainly, the evidence before us is sufficient to meet the lesser standard. Whether the evidence once fully developed at trial would be sufficient to sustain a conviction for the offense is irrelevant to our present inquiry. Accord, Commonwealth v. Fisher, 294 Pa.Super. 486, 490, 440 A.2d 570, 572 (1982).

In sum, I conclude that Trooper Kambic reasonably believed appellant was in violation of the Motor Vehicle Code and had probable cause to stop appellee for the violation. Therefore, I find that the lower court erred in suppressing all evidence gathered as a result of the stop and I would reverse and remand for trial, Cf., Commonwealth v. Triplett, 387 Pa.Super. 378, 382, 564 A.2d 227, 230 (1989); Elliott, supra.

      . I note that there was no evidence of hazardous weather conditions before the Vishneski Court.


author: WIEAND, Judge:

text:
    609 A.2d 817
    GREATE BAY HOTEL & CASINO, INC., Appellant v. Mark SALTZMAN, Appellee.
    Superior Court of Pennsylvania.
    Argued March 10, 1992.
    Filed June 8, 1992.

      Drew Salaman, Philadelphia, for appellant.
    Michael S. Saltzman, Philadelphia, for appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a Pennsylvania court can refuse to enforce a judgment obtained in New Jersey and transferred to Pennsylvania pursuant to the Uniform Act for Enforcement of Judgments, 42 Pa.C.S. § 4306, because the nature of the debt for which the judgment was recovered violates Pennsylvania’s public policy or because the proceedings in New Jersey failed to conform in all respects with the safeguards provided by procedural law in Pennsylvania. The trial court refused to enforce the New Jersey judgment and entered an order opening the judgment. We reverse. The New Jersey judgment was entitled to full faith and credit.

Greate Bay, a New Jersey corporation with principal place of business in Atlantic City, New Jersey, commenced an action in New Jersey against Mark Saltzman, a resident of Philadelphia, to recover unpaid gambling debts. When Saltzman did not appear and defend the action, a default judgment was entered against him in the amount of $5,176.90. This judgment was then filed in the Office of the Prothonotary in Philadelphia pursuant to 42 Pa.C.S. § 4306, and execution was issued thereon. Saltzman then filed in Philadelphia, Pennsylvania, a petition to open the judgment. In support thereof, he alleged that (1) he had not received notice of the default judgment and (2) the judgment was unenforceable because gambling debts were violative of public policy and not recoverable in Pennsylvania under 73 Pa.C.S. § 2031. The trial judge, without benefit of depositions or an evidentiary hearing and without giving any reason therefor, granted Saltzman’s petition and opened the judgment. When Greate Bay appealed, the trial court prepared a memorandum opinion saying only that in the trial judge’s opinion, its order was not appealable.

A final order is one which terminates the litigation or precludes further action in the trial court. In re Adoption of E.J.W., 356 Pa.Super. 570, 574, 515 A.2d 41, 43 (1986), citing Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 255 A.2d 577 (1969); Dash v. Wilap Corporation, 343 Pa.Super. 584, 495 A.2d 950 (1985). Whether an order is final “cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.” Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978). See also: Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), affirmed, 498 Pa. 570, 449 A.2d 1378 (1982). Therefore, how the trial court may characterize an order is not controlling, as its finality is determined by its effect. In re Adoption of E.J.W., supra.

The trial court’s order in the instant case is final. There is no further litigation available to the plaintiff-appellant in Pennsylvania. When the trial court “opened” the judgment which had been transferred to Pennsylvania from New Jersey, the effect of its order was to refuse to enforce the New Jersey judgment. The Pennsylvania court lacked both the power and jurisdiction to open the New Jersey judgment and require that the merits of appellant’s claim be litigated in Pennsylvania. Only a court of competent jurisdiction in New Jersey could open the default judgment which had been entered in New Jersey. When the judgment became final in New Jersey and was thereafter filed in Pennsylvania, the Pennsylvania court could either enforce the judgment or refuse to enforce the judgment. When the Philadelphia court refused to enforce the judgment, its order was appealable. Because the trial court’s order was final, it was not the same as and did not have the effect of an order opening a Pennsylvania judgment. The latter is interlocutory and not appealable under Pa.R.A.P. 311(a)(1).

The effect of the full faith and credit clause of the Constitution of the United States in foreign judgments was examined in Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 487 A.2d 1372 (1985). There, the Court said that judgments entered in sister states are

entitled to full faith and credit in Pennsylvania so long as “there was jurisdiction by the court which originally awarded the judgment, see Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974), and the defendant had an opportunity to appear and defend, see Morris Lapidus Associates v. Airportels, Inc., 240 Pa.Super. 80, 361 A.2d 660 (1976).” Everson v. Everson, 494 Pa. 348, 361, 431 A.2d 889, 895-896 (1981). The courts in Pennsylvania will refuse to give full faith and credit to a foreign judgment if it was obtained in derogation of a basic, due process right of the defendant. Hanson v. Denckla, 357 U.S. 235, 255, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958). However, when “the court of another state has purported to act on the merits of á case, its jurisdiction to do so and the regularity of its proceedings are presumptively valid.” Barnes v. Buck, 464 Pa. 357, 364, 346 A.2d 778, 782 (1975). The party challenging the validity of the judgment, therefore, bears the burden of showing any irregularity in the proceedings. Commonwealth, Department of Transportation v. Granito, 70 Pa.Cmwlth. 123, 127, 452 A.2d 889, 891 (1982).

Id. 338 Pa.Super. at 465-466, 487 A.2d at 1375-1376.

In the instant case, the defendant-appellee has not contended that the New Jersey court lacked either subject matter jurisdiction or jurisdiction of his person. Similarly, he has not contended that he failed to receive notice of the action against him in that state. He asserts only that he did not receive notice of the judgment. Whether he is referring to notice before the entry of the default judgment or after the judgment had been entered is not clear. In either event, the result is clear. The New Jersey proceedings are not governed by Pennsylvania’s procedural rules. Pa.R.C.P. 237.1, upon which appellee appears to rely and which requires notice before the entry of a default judgment, does not have an extra-territorial effect. It does not have effect on New Jersey actions and cannot be used to measure the validity of judgments obtained in New Jersey. Those judgments are presumptively valid. So long as New Jersey procedure complies with fundamental concepts of due process, its judgments are entitled to full faith and credit.

Appellant has not identified any fundamental unfairness in the New Jersey rules of procedure which resulted in a final judgment against him. New Jersey Civil Practice Rules 4:4-2 and 4:4-3 require service of initial process, together with notice which contains “the time within which these rules require the defendant to serve an answer upon the plaintiff or plaintiff’s attorney, and [it] shall notify the defendant that if he or she fails to answer, judgment by default may be rendered for the relief demanded in the complaint.” Moreover, New Jersey Court Rule 4:43-3 provides that “[f]or good cause shown, the court may set aside an entry of default.” If the defendant-appellant believed that he had a defense to the claim made against him by the plaintiff-appellant, his remedy was to assert it in New Jersey where the pending action resulted in a judgment against him. When he failed to contest it in New Jersey, the judgment became final and was entitled to full faith and credit in Pennsylvania. The fact that the judgment was not challenged in New Jersey does not make it any less valid.

In Barnes v. Buck, 464 Pa. 357, 346 A.2d 778 (1975), a divorce decree had been entered by a court in Ohio. The wife attempted to set aside the decree in Ohio. The Ohio court rejected her request, and the Pennsylvania Supreme Court afforded the decree full faith and credit. Writing for the Court, Justice Pomeroy observed:

Even had the divorce decree not been challenged and upheld by the courts of Ohio, a collateral attack upon it by a plaintiff in the courts of this Commonwealth would not normally be entertained. Although the full faith and credit clause does not require a sister State to give a greater, more conclusive or more final effect to a foreign judgment or decree than would be given it by the courts of the rendering State, see the Act of June 25, 1948, note 4 supra, 28 U.S.C. § 1738; and Restatement (Second) of Conflict of Laws § 115 and Comment b thereto (1971), principles of interstate comity would indicate abstention by Pennsylvania courts in favor of the courts of the rendering State, in light of their special competence to pass upon the validity of the public acts, records and judicial proceedings of that State. Thus a party seeking relief in our courts on the basis of asserted invalidity (other than jurisdictional) of the judicial proceedings of another State should normally be relegated to the courts of that State for the establishment of the invalidity.

Id., 464 Pa. at 365-366 n. 12, 346 A.2d at 783 n. 12 (emphasis added).

“A state is required to give full faith and credit to a money judgment rendered in a civil suit by a sister state even where the judgment violates the policy or law of the forum where enforcement is sought.” Everson v. Everson, 494 Pa. 348, 361, 431 A.2d 889, 896 (1981). See also: Medina & Medina, Inc. v. Gurrentz International Corp., 304 Pa.Super. 76, 450 A.2d 108 (1982) (judgment rendered in Puerto Rico and properly authenticated by supporting docket entries, entitled to full faith and credit in Pennsylvania). If the judgment was valid and enforceable in the rendering state, “[it].is equally so in all other states.” Everson v. Everson, supra, 494 Pa. at 362, 431 A.2d at 896. Thus, a transferred judgment “cannot be stricken or opened simply because the party seeking to open or strike can demonstrate that he/she would have a valid defense to the action if brought in Pennsylvania.” Tandy Computer Leasing v. DeMarco, 388 Pa.Super. 128, 133, 564 A.2d 1299, 1302 (1989).

It follows that the trial court in Pennsylvania could not refuse to enforce the judgment obtained against appellee in New Jersey merely because, by statute in Pennsylvania, gambling contracts will not be enforced here. See: M & R Investments Co., Inc. v. Hacker, 511 So.2d 1099 (Fla.Dist.Ct.App.1987) (Florida courts bound by full faith and credit clause to recognize Nevada judgment based on gambling debt and could not refuse to enforce the judgment on grounds that it was contrary to public policy of Florida); Hilton International Co. v. Arace, 35 Conn.Supp. 522, 394 A.2d 739 (1977) (Connecticut courts bound by full faith and credit clause to recognize Puerto Rican judgment based on gambling debt notwithstanding own strong public policy against gambling); Restatement (Second) Conflict of Laws § 117. As was stated by Mr. Justice Stone in Milwaukee County v. M.E. White Co., 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220 (1935):

The very purpose of the full faith and credit clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.

Id. at 276-277, 56 S.Ct. at 234, 80 L.Ed. at 228.

For these reasons, we hold that the trial court erred when, by “opening” the judgment which had been obtained in New Jersey, it refused to enforce it. The defendantappellee failed to allege any valid basis on which a court in Pennsylvania could refuse to enforce the New Jersey judgment; and, therefore, the New Jersey judgment was entitled to full faith and credit in Pennsylvania.

Order reversed.

      . Act of April 22, 1794, 3 Sm.L. § 8, 73 P.S. § 2031.