author: PRICE, Judge:

text:
    456 A.2d 654
    COMMONWEALTH of Pennsylvania, Appellant, v. Francis RUTIGLIANO.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed Feb. 18, 1983.

      William H. Ryan, Assistant District Attorney, Drexel Hill, for Commonwealth, appellant.
    Michael F.X. Coll, Media, for appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.

       Died Jan. 30, 1983. This decision was reached prior to his death.

   PRICE, Judge:

The Commonwealth appeals from an order suppressing evidence obtained pursuant to a warrantless search of appellee’s automobile.

The following facts were adduced at the suppression hearing: At approximately 4:30 p.m. on November 11, 1979, Walter Schoch of North Broad Street in Kennett Square, Pennsylvania, noticed an unfamiliar automobile parked near the residence of his neighbors, Richard and Gloria Pia, also of North Broad Street. The automobile was parked in the middle of a little-used, single lane, unpaved public road located perpendicular to North Broad Street and adjacent to the Pia residence. Schoch observed that the automobile was a tan colored Buick station wagon. He noted the absence of any persons in the automobile or in the vicinity of the house, but he heard a noise originating from the Pia home. Schoch continued to observe the house for fifteen minutes but saw no one. Believing the Pias were not at home, Schoch decided to investigate. Because it was raining, he went to get his car from his garage. While backing it out of the garage, Schoch observed the station wagon proceeding southerly along North Broad Street. Schoch followed the station wagon and obtained a more detailed description of the automobile. Specifically, he noted its state of registration and license number, that it had a Citizen Band antenna and a trailer hitch, and that there were two male occupants.

At approximately 5:30 p.m., Officer Little of the Kennett Square Borough Police responded to a report of a burglary at the Pia residence. Officer Little, after obtaining the above details from Schoch, and after speaking with the Pias who informed him that their home had been burglarized, requested that the Chester County Police Radio broadcast a message asking any police department to stop the vehicle matching Schoch’s description and obtain the identity of its occupants. Little also relayed that a large quantity of jewelry could be in the vehicle.

At approximately 6:00 p.m. Officer Wood received a message transmitted by the Delaware County police radio which advised that the occupants of the automobile matching the Schoch description, viz., a tan Buick station wagon, Pennsylvania registration 5U2996, with a trailer hitch, should be arrested for burglary. Officer Wood spotted the station wagon at 7:09 p.m. He stopped the vehicle, ordered the two occupants, one William Rosetto and appellee Francis Rutigliano, out of the automobile. Wood then placed them under arrest for the Pia burglary. Appellee was later arraigned on charges of receiving stolen property and criminal conspiracy.

The station wagon was towed to the Springfield Township police station and was searched without a warrant by Officer Wood at approximately 7:45 p.m. that evening. While it was the policy of the Springfield Police Department to conduct an inventory search of all vehicles towed to the station, Wood conducted this search with the belief that personal property from the Pia residence might be found in the station wagon. In the course of the search Officer Wood located in the tire well a pillow case containing jewelry from the Pia home.

The trial court ordered suppression of the pillow case and jewelry reasoning that the warrantless search was an intrusion into an area where the appellee had a reasonable expectation of privacy. In a post-suppression hearing opinion, the trial court found the warrantless arrest of the appellee was invalid because of a lack of probable cause.

For the reasons stated herein, we reverse the order of the trial court suppressing the evidence obtained pursuant to a warrantless search.

I. THE VALIDITY OF THE ARREST

When an arrest is made without a warrant it must be based on probable cause. The burden is on the Commonwealth “to show with reasonable specificity facts sufficient to establish that probable cause existed.” Commonwealth v. Richards, 458 Pa. 455, 464, 327 A.2d 63, 67 (1974) (quoting from Commonwealth v. Holton, 432 Pa. 11,14-15, 247 A.2d 228, 229-30 (1968)). The crucial test in determining the presence of probable cause is whether “the facts and circumstances known to the police or about which they have reasonably trustworthy information at the time of the arrest ... [would] warrant a person of reasonable caution in believing the suspect has committed or is committing a crime.” Commonwealth v. Bartlett, 486 Pa. 396, 400, 406 A.2d 340, 341 (1979); Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978); Commonwealth v. Pytak, 278 Pa. Superior Ct. 476, 420 A.2d 640 (1980).

In the instant case, Walter Schoch, a neighbor of the victim, who was familiar with the neighborhood, noticed an unoccupied and unfamiliar automobile parked in the middle of a public road adjacent to the home of a neighbor whom he believed to be away at the time. A detailed description of the car was obtained by Schoch, and soon thereafter it was learned that the house had been burglarized. All of the above facts were known to the investigating officer prior to the arrest. While the arresting officer must have a reasonable belief in the probability of criminal activity by the person to be arrested, the belief may “rest solely in information supplied by another person where there is a ‘substantial basis’ for crediting that information.” Commonwealth v. Stokes, supra, 480 Pa. at 44, 389 A.2d at 76. Where, as here, a neighbor volunteers information, there is no need to establish credibility. Commonwealth v. Crawley, 209 Pa. Superior Ct. 70, 223 A.2d 885, (1966) (superseded by statute as stated in Commonwealth v. Kaschik, 235 Pa. Superior Ct. 388, 344 A.2d 519 (1975); Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965) reh. den. Jaben v. United States, 382 U.S. 873, 86 S.Ct. 19, 15 L.Ed.2d 114 (1965).

The appellee contends and the lower court held that since the station wagon was stopped and the arrests made a full two hours after the witness obtained a description of the car, probable cause to arrest could not be present. We disagree.

In Commonwealth v. Jones, 233 Pa. Superior Ct. 461, 335 A.2d 789 (1975), a case factually similar to the instant case this court found probable cause for the arrests. There, two men robbed a bar at gun point. As the men drove away a patron noticed that the car was two-toned red and black. Prior to the robbery, two children observed a car of the same color configuration driving up and down the street in front of the bar. Each child memorized one-half "of the license plate number. Acting on the above description the police stopped the car one hour later and arrested the occupants.

We find that based on the information gathered by the investigating officer, viz., the occurrence of a burglary, the neighbor’s description of the automobile and his observation that the car had two male occupants, that there was probable cause at the time of the arrests even though approximately two hours had elapsed since the car had last been seen. “It is only the probability and not a prima facie showing of criminal activity that is a standard of probable cause.” Commonwealth v. Vessells, 273 Pa. Superior Ct. 100, 105, 416 A.2d 1108, 1111 (1979).

Appellee also contends that the arresting officer lacked probable cause to arrest since the investigating officer had requested by radio that the station wagon be stopped and the identity of the occupants ascertained, while the radio message received by the arresting officer directed him to arrest the occupants of the automobile.

It is well settled that if the initiating officer possessed facts constituting probable cause, then a warrantless arrest by another officer based upon the direction of the initiating officer shall be upheld. Whiteley v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

Since we have concluded that the investigating officer, who also was the initiating officer, had probable cause to arrest based on the information he gathered, and since the delay in the apprehension did not negate the probable cause, the fact that the arresting officer acted upon a message at variance with the original transmission did not invalidate the arrest.

II. THE VALIDITY OF THE SEARCH

The evidence shows that a search of the station wagon was conducted by the arresting officer at the station house some 35 minutes after the arrest. This search cannot be justified on the theory of a search incident to arrest because of the disparity in time and place from the arrest, Chambers v. Maroney, 399 U.S. 42, 47, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970), nor can it be sustained as an inventory search since the searching officer possessed an investigatory intent. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). However, the search at the station house was valid as we find that the police had probable cause to believe that two men had fled the scene of the burglary carrying the fruits of the crime in a station wagon of which the police possessed a detailed description and the delay in stopping the vehicle did not negate the probable cause. It was in just such a case in Chambers v. Maroney, supra, that the United States Supreme Court upheld a warrantless search of an automobile at the station house. The Court stated in Chambers v. Maroney, supra, 399 U.S. at 51, 90 S.Ct. at 1981:

For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrant-. less seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained. [Footnote omitted].

In the instant case, since the police had probable cause to search the automobile for the fruits of the burglary immediately upon stopping it without a warrant, the search at the station house was constitutionally valid.

The trial court’s order suppressing the evidence obtained in the search of the automobile is reversed and that court is directed to proceed in this case in a manner not inconsistent with this opinion. Jurisdiction is not retained and the parties will have their full rights as to appeal upon conclusion of further proceedings.

      . The suppression order entered in this case, in addition to raising a question of law, would substantially handicap or terminate the prosecution. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied Bosurgi v. Pennsylvania, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963); Commonwealth v. Trotman, 280 Pa. Superior Ct. 271, 421 A.2d 718 (1980).

      . 18 C.P.S.A. § 3925.

      . 18 C.P.S.A. § 903.

      . A tire well is a floor compartment located at the rear of a station wagon which is accessed through the passenger compartment. It is designed to carry a spare tire.

      . Referring to the circumstances which surrounded the search in Chambers v. Maroney, supra, the Court in Coolidge v. New Hampshire, 403 U.S. 443, 463, n. 20, 91 S.Ct. 2022, 2036, n. 20, 29 L.Ed.2d 564 (1971), said, "[i]t is true that the actual search of the automobile in Chambers was made at the police station many hours after the car had been stopped on the highway, when the car was no longer movable, any ‘exigent circumstances’ had passed, and, a magistrate easily available.”

      . The Pennsylvania Supreme Court in Commonwealth v. Smith, 452 Pa. 1, 304 A.2d 456 (1973) cert. denied Smith v. Pennsylvania, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483 (1973) (two Justices concurring in result, two Justices dissenting in an opinion, and one Justice dissenting without opinion), followed Chambers in a factually similar case differing principally in the time of day when the police seized the automobile. In Chambers the seizure had been at night while in Smith it was during daylight hours. The dissenting opinion in Smith distinguished Chambers as applicable only to those situations where the police have legitimate concerns for their own safety because of the hour of the day. We note in passing that the automobile here was stopped after dark.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    456 A.2d 659
    COMMONWEALTH of Pennsylvania v. Tyrone MURPHY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 4, 1982.
    Filed Feb. 18, 1983.

      John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane Culter Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   HESTER, Judge:

Appellant’s sole contention on this direct appeal is that the Commonwealth failed to prove that he was sentenced to a “term of years” as required by 18 Pa.C.S.A. § 2703, Assault by Prisoner, and that his conviction thereunder must necessarily fall. We disagree and affirm the judgment of sentence.

On March 3, 1980, appellant was sentenced to serve a term of imprisonment of not less than one (1) month nor more than twenty-three (23) months at Philadelphia County Prison on charges of unauthorized use of an automobile. While incarcerated, he attacked and injured two correctional officers with a piece of broken mirror. After a non-jury trial, appellant was adjudged guilty of two counts of Assault by Prisoner, two counts of Simple Assault, and two counts of Recklessly Endangering Another Person. Post-verdict motions were duly filed and denied; thereafter appellant was sentenced to concurrent terms of two (2) to four (4) years imprisonment on the assault by prisoner convictions and one (1) to two (2) years imprisonment on the simple assault convictions. Appellant received suspended sentence on the two counts of recklessly endangering another person. This appeal challenges only the assault by prisoner convictions.

The statute under which appellant was convicted provides as follows:

§ 2703. Assault by prisoner
A person who has been found guilty and is awaiting sentence to imprisonment, or a person who has been sentenced to imprisonment for a term of years in any local or county detention facility, jail or prison or any State penal or correctional institution or other State penal or correctional facility, located in this Commpnwealth, is guilty of a felony of the second degree if he, while so confined or committed or while undergoing transportation to or from such' an institution or facility in or to which he was confined or committed intentionally or knowingly commits an assault upon another with a deadly weapon or instrument, or by any means or force likely to produce serious bodily injury.
As amended 1974, Dec. 10, P.L. 810, No. 268, § 1.

Appellant takes exception to the language “a person who has been sentenced to imprisonment for a term of years.” He contends that, at the time he committed the assault upon the correctional officers, he was not imprisoned for the requisite “term of years” as mandated by the statute. Appellant reasons that “term of years” connotes a sentence of at least two years in length, and since his maximum sentence was twenty-three months, his sentence does not constitute a “term of years.” Consequently, the lower court erred in finding appellant guilty of assault by prisoner.

The legislative intent of § 2703 is to protect prison inmates and correctional officers from in-prison violence. This statute enhances the ability of law enforcement officers to control the incidence of assaults which occur in prison. If appellant’s proposition were accepted as true, no prisoner sentenced to a term of imprisonment of less than two (2) years could ever be found guilty of assault by prisoner. Such a result flies in the face of the legislative intent; it would clearly be anomalous to exclude those prisoners serving terms under two years when the statute itself covers those “who [have] been found guilty and [are] awaiting sentence.” It is illogical that the legislature would exempt from culpability under § 2703 the class of prisoners serving less than two year terms and yet apply the statute to those who have not yet been sentenced, particularly when many of the unsentenced prisoners may be future members of that class.

According to the canons of statutory construction “[i]t is to be assumed that the legislature uses words in their standard, or accepted, sense.” Commonwealth v. Ashford, 263 Pa.Super. 100, 105, 397 A.2d 420, 422 (1979). See 1 Pa.C.S.A. § 1903. While there are no cases exactly on point which discuss appellant’s proposition, numerous cases have referred to “term of years” primarily to distinguish a term limited by calendar time from one that is unlimited or from one limited by the length of a person’s life. See Commonwealth v. Williams, 488 Pa. 625, 413 A.2d 658 (1980) (life sentences for murder versus term of years of unspecified length for assault and battery); Commonwealth v. Phillips, 475 Pa. 427, 380 A.2d 1210 (1977) (death penalty versus life imprisonment or term of years); Commonwealth v. Newsome, 462 Pa. 106, 337 A.2d 904 (1975) (sentence for a term of years of unspecified length versus life sentence); Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970) (sentence for a term of years versus life sentence or death penalty).) As can be seen from the above cases, this Commonwealth has interpreted the ordinary usage of the statutory phrase “term of years” to distinguish periods measured by calendar units from periods measured by some other standard.

The above interpretation is supported by the legislative enactment of 18 Pa.C.S.A. § 2704. This statute provides that a penalty comparable to that provided for murder of the second degree shall be imposed for any aggravated assault committed by any prisoner sentenced to death or life imprisonment. Thus, it is apparent that in promulgating two separate statutes with distinct penalties, the legislature intended to treat differently those who were incarcerated for specific time periods from those who were serving life sentences or were awaiting execution. There is not an iota of evidence that the legislature intended to omit from § 2703 those serving less than two-year sentences.

Finally, the legislature itself has determined that, in interpreting statutory language, “[t]he singular shall include the plural, and the plural, the singular.” 1 Pa.C.S.A. § 1902. Consequently, “term of years” must include all sentences less than two years as well as greater than two years. Appellant’s conviction stands.

Judgment of sentence affirmed.

      . § 2704. Assault by life prisoner
      Every person who has been sentenced to death or life imprisonment in any penal institution located in this Commonwealth and whose sentence has not been commuted, who commits an aggravated assault with a deadly weapon or instrument upon another, or by any means of force likely to produce serious bodily injury, is guilty of a crime, the penalty for which shall be the same as the penalty for murder of the second degree.
      As amended 1974, March 26, P.L. 213, No. 46 § 4, imd. effective.

      . The District Attorney of Philadelphia notes that, if appellant’s construction were accepted as true, it would result in excepting from the applicability of § 2703 all prisoners of the Philadelphia Prison System, none of whom serve sentences longer than two years. See 61 P.S. § 636.


author: WIEAND, Judge:

text:
    456 A.2d 661
    COMMONWEALTH of Pennsylvania v. Raymond John BOSWORTH, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 23, 1982.
    Filed Feb. 18, 1983.

      Edward F. Kane, Norristown, for appellant.
    Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WIEAND, Judge:

Does a burglar who parks his vehicle on property of another in violation of posted “No Trespassing” signs have a reasonable expectation of privacy with respect to stolen property stored in the trunk of his vehicle from which he has allowed the keys to remain dangling while he engages in the commission of a burglary? The trial court concluded that there was no such expectation of privacy and refused to suppress stolen property found in the trunk by a policeman responding to a silent burglar alarm. The Commonwealth used the evidence in obtaining the vehicle owner’s nonjury conviction for burglary and related offenses. Raymond Bosworth, the vehicle’s owner, who was found and arrested inside the building being burglarized, appeals from the judgment of sentence. We affirm.

At or about 12:25 p.m. on October 10, 1980, the police of Towamencin Township were alerted by a silent burglar alarm which had been tripped in a barn used for storage in Harleysville. Sgt. Alfred M. Gillette arrived at the property of P.H. Lumber Company at 12:28 p.m. He observed a Cadillac automobile parked in a weeded area near the barn. He approached the vehicle in order to obtain the registration number, but as he drew closer, he observed that the keys were dangling from the trunk lock. He opened the trunk of the Cadillac and observed the top of a birdbath and other items. He closed the trunk, taking the keys with him, and went to the barn, which was the building protected by the alarm. Upon entering the building through a door which had previously been forced open, he observed appellant descending a ladder from the second floor. He also observed a birdbath pedestal which seemed to match the birdbath seen in the trunk of the Cadillac. Appellant was taken into custody. The vehicle, which was registered in appellant’s name, had been parked on P.H. Lumber Company’s land which had been posted with “No Trespassing” signs.

The controlling principle appears in Commonwealth v. Grabowski, 306 Pa.Super. 483, 452 A.2d 827 (1982) as follows:

The Fourth Amendment of the Constitution prohibits only unreasonable searches and seizures. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). To constitute a ‘search’ within the Fourth Amendment, police activity must intrude upon an area or concern wherein the appellant harbored a reasonable expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Layman, 290 Pa.Super. 244, 434 A.2d 735 (1981).

Id., 306 Pa.Superior at 490, 452 A.2d at 831 (the possessor of a stolen vehicle who leaves it at a public service station for purposes of resale has no legitimate expectation of privacy with respect to the confidential vehicle identification numbers concealed on the automobile). See also: Commonwealth v. Best-Bey, 258 Pa.Super. 478, 393 A.2d 459 (1978).

It is by now well settled that a person’s expectation of privacy with respect to an automobile is significantly less than with respect to his or her home or office. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). See: United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); Commonwealth v. Grabowski, supra. Moreover, an expectation of privacy and the strength thereof may be judged by the measures taken to ensure privacy. Commonwealth v. Weimer, 262 Pa.Super. 69, 75, 396 A.2d 649, 651 (1978).

In the instant case there clearly could have been no reasonable expectation of privacy. Appellant’s vehicle had been parked on the property of another person where it had no right to be. Not only was appellant trespassing on another’s land, but he was actually engaged in a criminal act against the owner. Certainly there can be no reasonable expectation of privacy with respect to a get-away-car, parked where it has no right to be, while it awaits the arrival of a criminal who is then engaged in committing a crime. In the instant case, there was more. Here, appellant had also left the keys dangling in the trunk lock of the trespassing vehicle. Under these circumstances, it would have been wholly unreasonable to expect the interior of the trunk to be accorded privacy. See: Commonwealth v. Grabowski, supra; Commonwealth v. Best-Bey, supra. See also: Commonwealth v. Tungland, Minn., 281 N.W.2d 646 (1979).

In United States v. Ramapuram, 632 F.2d 1149 (4th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981), the defendant stole dynamite and stored it on his father’s farm in the trunk of an old car which he had been using. The car was in a field, unused, and the trunk lock mechanism had been removed. Police seized the dynamite without a warrant, and appellant contended that the search and seizure of the dynamite were illegal. The court held:

[T]he thrust of the Fourth Amendment simply does not extend to locations lacking a foundation for reasonably expecting that the materials will be accorded privacy. Exploration by the government although without a warrant of non-private place does not compel the suppression of evidence so obtained. (Citations omitted.)

Id. at 1153. The court, in addressing further the legality of the warrantless opening of the unlocked trunk, said:

It is sufficient here to observe that whatever expectation of privacy attends a closed but unsecured “effect” generally is diminished where the “effect” itself is placed in an area totally without the protection of the Fourth Amendment such as an open field. (Citations omitted.)

Id. at 1155.

Wrongful possession and wrongful presence in a place or vehicle have consistently been held to reduce the reasonableness and legitimacy of a person’s expectation of privacy for Fourth Amendment purposes. See: Rakas v. Illinois, supra, 439 U.S. at 141 n. 9, 99 S.Ct. at 429 n. 9, 58 L.Ed.2d at 399-400 n. 9; Commonwealth v. Grabowski, supra, 306 Pa.Super. at 491, 452 A.2d at 832; Commonwealth v. Freeman, 295 Pa.Super. 467, 472, 441 A.2d 1327, 1329 (1982); Commonwealth v. Prengle, 293 Pa.Super. 64, 67 n. 3, 437 A.2d 992, 994 n. 3 (1981).

If appellant had a subjective expectation of privacy, it was not only unreasonable, but also one which the law is not prepared to recognize and protect. In Rakas v. Illinois, supra 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12, 58 L.Ed.2d at 401 n. 12, the Supreme Court observed:

[A] “legitimate” expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as “legitimate.” His presence ... is “wrongful”; his expectation is not one that society is prepared to recognize as “reasonable.” (Citation omitted.) (Emphasis supplied.)

See also: Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, 226-227 (1979); Katz v. United States, supra 389 U.S. at 360, 88 S.Ct. at 516, 19 L.Ed.2d at 587-588 (1967) (Concurring Opinion by Harlan, J.).

We here decline to extend Fourth Amendment protection to the trunk of a vehicle which has been parked where it has no right to be while the owner engages in criminal activity. This is particularly so where, as here, the owner has allowed the key to the trunk to remain dangling in the lock visible to anyone who looks.

There is no merit in appellant’s remaining contentions. The warehouse being burglarized had been owned by and was known as property of P.H. Lumber Company, and it was in this manner that it was described in the information. On the day of the burglary, however, the lumber company was in bankruptcy, and the title to its property was vested in a trustee in bankruptcy. This was not a fatal variance. “It is well settled that a purported variance will not be deemed fatal unless it could mislead the defendant at trial, involves an element of surprise prejudicial to the defendant’s efforts to prepare his defense, precludes the defendant from anticipating the prosecution’s proof, or impairs a substantial right.” (Footnotes omitted). Common wealth v. Pope, 455 Pa. 384, 391, 317 A.2d 887, 890 (1974). Accord: Commonwealth v. Kelly, 487 Pa. 174, 177-178, 409 A.2d 21, 23 (1979); Commonwealth v. Schomaker, 293 Pa.Super. 78, 83, 437 A.2d 999, 1001 (1981); Commonwealth v. Niemetz, 282 Pa.Super. 431, 442 n. 10, 422 A.2d 1369, 1375 n. 10 (1980); Commonwealth v. Wilkinson, 278 Pa.Super. 490, 500, 420 A.2d 647, 652 (1980); Commonwealth v. Possinger, 264 Pa.Super. 332, 343-344, 399 A.2d 1077, 1083 (1979). Here, the nature and location of the offense charged, including the identity of the building allegedly violated, were unambiguously and plainly set forth in the information. Appellant was neither misled nor prejudiced by the fact that the reputed owner had gone into bankruptcy. He knew precisely the building which he was accused of burglarizing. Cf. Commonwealth v. Spann, 228 Pa.Super. 192, 323 A.2d 140 (1974).

Ownership of the warehouse and its contents, as well as appellant’s lack of privilege to enter the building and remove personal property, were established by testimony received from the senior vice president of the bank which had been delegated by the trustee in bankruptcy to sell and dispose of the property. It was not essential to proof of a burglarious entry that the Commonwealth produce the trustee in bankruptcy. See: Commonwealth v. Spann, supra; Commonwealth v. Myers, 131 Pa.Super. 258, 200 A. 143 (1938).

Neither does the failure of the Commonwealth to produce testimony regarding the value of the birdbath require a reversal. Commonwealth v. Farmer, 244 Pa.Super. 334, 343, 368 A.2d 748, 752 (1976). Proof of actual value was relevant only to establish the grade of the offense for purposes of imposing sentence. Commonwealth v. McKennion, 235 Pa.Super. 160, 163, 340 A.2d 889, 891 (1975).

The judgment of sentence is affirmed.


author: SPAETH, Judge: BROSKY, Judge,

text:
    456 A.2d 988
    COMMONWEALTH of Pennsylvania v. Winfield JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 22, 1982.
    Filed Jan. 7, 1983.
    Reargument Denied March 21, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before SPAETH, BROSKY and BECK, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for robbery. Appellant argues that the lower court erred in denying his motion to quash the return of the transcript of the preliminary hearing; in refusing to suppress his statement; and in giving the “restrain” version of the reasonable doubt charge.

We admire the careful way in which the lower court conducted the trial, and we agree with, and find no need to add to, its discussion rejecting appellant’s arguments regarding the motion to quash and the reasonable doubt charge. But on two issues, which concern appellant’s statement, we don’t agree with the lower court. These issues have nothing to do with appellant’s guilt—there’s no doubt he was the robber—but a good deal to do with the conduct of other trials, in other cases.

The police officer who obtained appellant’s statement did not give appellant the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In refusing to suppress the statement, the lower court held that whether a police officer must give a suspect Miranda warnings should be decided by a subjective, not an objective, test: Did the officer think he was asking a question that might elicit an incriminating answer, not, Should he have thought so? We believe that the objective test is the right test. Applying it here, we conclude that the warnings should have been given, and since they were not, that the statement should have been suppressed. The lower court also held that it was not required to order a new trial as a sanction for the Commonwealth’s failure to disclose appellant’s statement in violation of Pa.R.Crim.P. 305 B(l). We believe that a new trial should have been ordered.

Appellant robbed a bar. He ran away but was soon caught by the police and brought back to the bar, where the bar maid, the disc jockey, and two patrons positively identified him. At the suggestion of one of the persons who had chased appellant, the police went to a nearby porch. There they found a coat and scarf. Appellant had discarded these when he was chased—as an attempt, no doubt, to make himself look different. In a pocket of the coat the police found sunglasses, gloves, and a paper bag with money inside it, in an amount closely corresponding to the amount taken from the bar’s cash register. Also in the pocket the police found a set of keys. After appellant had been arrested, and while he was in a holding cell at the police station, the officer who had found the keys showed them to appellant, and asked “if they belonged to him and he said they did and I [the officer] returned them to him.” N.T. 119.

Before the trial, appellant’s counsel had asked the assistant district attorney whether he intended to introduce any statement by appellant. The assistant district attorney replied that there was no statement. N.T. 133-34. After the officer had testified to appellant’s statement about the keys, his counsel moved for a mistrial. N.T. 145, 219. The assistant district attorney argued that the statement was not a statement. N.T. 134. The lower court held that it was but denied the motion for mistrial. After some further testimony, the court interrupted the trial, saying, “I’ll salvage this case if I can.” N.T. 219. The court then conducted a hearing to decide whether the statement should be suppressed, N.T. 220 et seq., after which it ruled that the statement was admissible, and could be referred to by the assistant district attorney in his closing argument, N.T. 234-35.

1

At trial the Commonwealth argued that appellant’s statement that the keys were his was really not a statement. In rejecting the argument, the lower court said to the assistant district attorney:

Well, in answer to your contention, suppose you had asked him about the coat, does this coat belong to you, don’t you think his answer would have been a highly important statement? Suppose you asked him about the sunglasses.
N.T. 135.

The assistant district attorney replied that he agreed that appellant’s answer that the coat and sunglasses belonged to him would have been a statement, “since they were ... submitted as evidence against [appellant],” N.T. 135-36 (the coat and sunglasses were Exhibit C-l), but went on to say, “I think the keys themselves have no significance as evidence other than the fact that they were in the pocket of the coat,” N.T. 136. In its brief to us the Commonwealth argues in somewhat different terms, blending an argument about the nature of what appellant said with an argument about whether he was entitled to Miranda warnings. Brief for Commonwealth at 9-12.

Without question, appellant’s admission that the keys were his was a statement. The fact that the keys were not themselves offered in evidence was immaterail. Furthermore, as the lower court’s comment indicated, it was “a highly important statement.” The nature of appellant’s statement as a statement and its importance were both emphasized by the assistant district attorney in his closing argument. He conceded that the bar was “dimly lit,” N.T. 252-53, but insisted that there were “physical facts” that showed that the witnesses’ identification of appellant as the robber was not mistaken. “There’s the coat they described him wearing, a long coat. There’s the sunglasses.” N.T. 259. And, he said:

We know that’s his coat not only because it came off the porch but because of a—sometimes you let things escape. It’s very important. What did Officer Oakley say. The keys. The keys were in the pocket of the coat.
When he went to the police station the defendant was at the police station and he said to the defendant, are these your keys. Yes, they are my keys. Do you want them back. And he took them back and the defendant himself even admitted that he had the keys to his mother’s home and he is now in possession of those keys.
So absolutely one hundred per cent that ties the defendant to the coat. You can’t separate that defendant from that coat with a hundred crowbars. That’s his coat and you can’t separate the coat from the money, the proceeds of the crime, with a thousand crowbars because that’s the proceeds of the crime and, therefore the defendant is the robber. That’s A plus B equals C. N.T. 260-61 (emphasis added).

2

Since appellant’s admission that the keys were his was a statement, we must decide whether appellant was entitled to Miranda warnings. It was conceded, and on appellant’s motion to suppress his statement, the lower court found, that the police officer who elicited the statement “did not disclose to [appellant] the site or location where he found the keys,” N.T. 232-33, and did not, before he questioned appellant about the keys, give-appellant Miranda warnings, N.T. 234. The lower court also found, however, that in questioning appellant, the officer did not have “any intention to obtain any incriminating or inculpatory statement.” N.T. 233. This being so, the court held, “[T]here was no violation of [appellant’s] constitutional rights and no duty to warn him that if he claimed ownership of the keys he would be incriminating himself.” N.T. 234.

We are of course bound by the lower court’s findings of fact if the record supports them. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Williams, 287 Pa.Superior Ct. 19, 429 A.2d 698 (1981). Here, the officer did not make any report of appellant’s admission that the keys were his until the assistant district attorney interviewed him at the time of trial. Also, although the officer noted on a property receipt the recovery of the coat, scarf, sunglasses, gloves, and bag of money, he did not note the recovery of the keys. “[T]he keys, as far as I knew,” the officer testified, “had no bearing on the case and had nothing to do with the case só I asked the defendant if they belonged to him and if so I would return them.” N.T. 221. The lower court’s finding that this testimony by the officer of his subjective intent when he questioned appellant was credible is supported by the evidence of the officer’s conduct in not reporting appellant’s statement or noting the recovery of the keys. The finding is therefore binding on us.

The lower court’s conclusion of law that a subjective standard is the right standard to apply is of course not binding on us, and it is at this point that our first difference with the lower court arises. For it is settled that the standard for determining whether an individual is in custody and is being subjected to interrogation is not subjective but objective. As the Supreme Court of the United States recently put it, “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police ... that the police should know ¿re reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980) (footnotes omitted; emphasis added). Therefore, in determining whether appellant was being interrogated—and thus entitled to receive Miranda warnings—we must look to all of the surrounding circumstances, not merely the officer’s testimony as to his own subjective intention.

When we look to the officer’s uncontradicted testimony at the suppression hearing, N.T. 221-28, and at trial, N.T. 113-21, we can only conclude that the officer should have known that his question about the keys was reasonably likely to elicit an incriminating response from appellant. The officer was one of the officers on the scene. He himself found the keys in the discarded coat, with the robbery money in it, and he knew that appellant had been identified by the persons at the bar as the robber, not only by his face but by his coat. N.T. 222-23. It is, really, quite surprising that the officer did not realize the significance of an admission by appellant that the keys in the coat were his. Certainly the assistant district attorney realized the significance of the admission; and, we believe, so would have any reasonably trained and experienced police officer. We therefore find the conclusion inescapable that appellant was entitled to Miranda warnings before being asked whether he owned the keys—the most damning evidence of all, because they clinched his identification as the robber. Since no Miranda warnings were given appellant, his statement should have been suppressed.

3

Pa.R.Crim.P. 305 B(l)(b) provides that upon the defendant’s request, the Commonwealth must disclose “any written confessions or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made, which is in the possession or control of the attorney for the Commonwealth[.]” Rule 305 D provides that this duty of disclosure continues up to and through the trial. Without question, the assistant district attorney violated this rule when he failed to disclose appellant’s statement, and the lower court so held. Slip op. at 15. The lower court further held, however, that although the Commonwealth had violated Rule 305 B(l), no sanction was required because the other evidence against appellant was so great that the testimony concerning the keys was “wholly unnecessary” and “did not contribute to the verdict.” Slip op. at 18-19. This is our second difference with the lower court. We believe that whenever the Commonwealth fails to comply with Rule 305 B(l)(b) with regard to a statement that was obtained in violation of Miranda rights and is therefore inadmissible, a sanction is required, and that here, that sanction should have been to grant a new trial.

In finding that the evidence of appellant’s statement that the keys were his did not contribute to the verdict, the lower court relied on Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). In Rodgers, after the defendant had been given Miranda warnings and had exercised his right to remain silent, he was asked various questions, in the absence of counsel, for the purpose of completing a police information form. One of these questions was whether he was known by any nicknames, to which he replied that he was called “Tubby.” His motion to suppress this answer was denied by the trial court. On appeal the Supreme Court held that any error in not suppressing the statement was harmless because the defendant’s use of the nickname “Tubby” was established through the testimony of several other witnesses; the police officer’s testimony that the defendant had also said it was his nickname was cumulative only.

We find Rodgers of little help. It does stand for the proposition that Miranda violations may be subject to a harmless error test. But that proposition hardly disposes of this case. In Rodgers the evidence was indeed cumulative only. Here, by contrast, appellant’s statement about the keys was the critical evidence. Eyewitnesses may be mistaken in recalling a robber’s face, especially when the robber was seen in a “dimly lit” bar. And a coat found on a porch is not the suspect’s simply because it fits him; he and the robber may be the same size. But when the suspect himself admits that his keys were in the coat, any doubt vanishes. Then, as the assistant district attorney said in his closing, “[Y]ou can’t separate” the suspect and the robbery “with a thousand crowbars;” you know “absolutely one hundred per cent” that he was the robber.

In its brief to us the Commonwealth argues that the evidence that appellant admitted that his keys were in the coat was “merely one more link between [appellant] and the robbery, and if its admission was error at all, it was harmless beyond a reasonable doubt.” Brief for Commonwealth at 15 (emphasis added). This certainly was not the assistant district attorney’s evaluation of appellant’s admission; he argued to the jury, correctly, that the admission was “absolutely one hundred per cent” proof of appellant’s guilt. The high purpose of a prosecutor is to do justice, not to hand onto a conviction. Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978); Commonwealth v. Miller, 281 Pa.Superior Ct. 392, 422 A.2d 525 (1980). That purpose is not served by opportunistic characterizations of the evidence. Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933) (“trial becomes unfair” if testimony accepted at trial for truth is accepted on appeal for impeachment) (CARDOZO, J.).

Finally, in Rodgers there was no violation of Pa.R. Crim.P. 305(B)(1). Pa.R.Crim.P. 305 E gives the trial court broad discretion in formulating remedies for a failure to comply with discovery requirements. In many cases, ordering a continuance will be an adequate remedy. This will be so where the undisclosed statement or other evidence is admissible and the defendant’s only prejudice is surprise. E.g., Commonwealth v. Parente, 294 Pa.Superior Ct. 446, 440 A.2d 549 (1982); Commonwealth v. Bey, 294 Pa.Superior Ct. 229, 439 A.2d 1175 (1982). Sometimes, however, the prejudice will go beyond surprise; if the prejudice is so great that the fairness of the trial has been affected, a new trial should be ordered. Commonwealth v. Jenkins, 476 Pa. 467, 383 A.2d 195 (1978).

Here, the evidence the Commonwealth failed to disclose—appellant’s statement about the keys—was not admissible, for it was obtained in violation of appellant’s Miranda rights. We respect the efforts of the lower court to salvage a trial already well along by holding a mid-trial suppression hearing. As we have already explained, however, we believe that the lower court’s conclusion, after that hearing, that appellant’s statement was admissible was error. This conclusion would by itself require a new trial, for given the importance of the statement, the error in admitting it cannot be characterized as harmless. But a new trial is additionally, and particularly, required in view of the Commonwealth’s failure to disclose the statement, in violation of Pa.R.Crim.P. 305 B(l)(b).

In his dissenting opinion, Judge BROSKY agrees with our disposition of the issues on the merits but suggests that the issues have been waived “due to a failure to make a timely objection.” Dissenting op. at 995. We find, however, that we are. not persuaded by this suggestion.

First, the suggestion is made sua sponte; neither the Commonwealth nor the lower court has suggested waiver. It is true that when the objection was first made, the lower court stated that it was not “timely.” But the court' made plain that it did not consider that any waiver had occurred (nor, as we have said, does the Commonwealth argue that any had). Accordingly, the lower court proceeded to hear argument, conduct a suppression hearing, and consider and dispose of the objection in its opinion. Clearly the lower court was correct. The reason the objection was not made at once was because the Commonwealth had failed to disclose the existence of appellant’s statement. We can find no basis for the dissent’s statement, Dissenting op. at 995 n. 3, that despite this failure, appellant’s counsel “should have become aware of the grounds for an objection.”

And second, the cases cited by the dissent support not the dissent, but, rather, the conclusion that there was no waiver.

The' dissent cites Commonwealth v. Griffin, 271 Pa.Super. 228, 412 A.2d 897 (1979), for the proposition that “[i]n the vast majority of cases,” a “timely objection” means a “contemporaneous objection.” That is of course true. However, the court in Griffin also said—in a passage immediately after the passage relied upon by the dissent: “But contemporaniety of objection is not insisted upon as a value in itself, rather it is required as the most convenient method of preventing a party from permitting error to insinuate itself into the record and complaining thereafter.” Id., 271 Pa.Superior at 236-37, 412 A.2d at 901 (emphasis added). The court then went, on to discuss how defense counsel, knowing the facts, had deliberately, as a strategic decision, refrained from objecting. His belated objection was therefore held untimely. Here, defense counsel did not know the facts, and not only was there no attempt to “insinuate [error] into the record and complain [ ] thereafter,” but counsel strenuously attempted to excise the error, both by argument and at the ensuing suppression hearing. In these circumstances, to find the objection untimely would indeed be to “insist [ ] upon [contemporaniety] as a value in itself.”

Commonwealth v. Folino, 293 Pa.Super. 347, 439 A.2d 145 (1981), also cited by the dissent, similarly shows that no waiver occurred here. In Folino, defense counsel chose not to object to the trial judge excusing a witness for a conference. Then, “well after” the conference, id,., 294 Pa.Superior at 352, 439 A.2d at 147, counsel apparently had a change of mind and did object. Thus counsel permitted something to occur, and then, after it had occurred, claimed error. Nothing like that happened here.

Finally, Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), the remaining case cited by the dissent, also shows that no waiver occurred here. Dilliplaine, indeed, is the foundation of the waiver doctrine and is therefore especially apposite. There the Court said that the reason for “[Requiring a timely specific objection to be taken in the trial court [is to] ensure that the trial judge has a chance to correct alleged trial errors.” Id.; 457 Pa. at 258, 322 A.2d at 116. “This opportunity to correct alleged errors at trial,” the Court explained, “advances the orderly and efficient use of our judicial resources.” Id., 457 Pa. at 258-59, 322 A.2d at 116.” “[T]he trial court may promptly correct the asserted error,” granting a new trial if necessary, and the appellate court, with the benefit of the trial court’s ruling and discussion, may focus upon issues preserved for its review. Id. Here, all of these purposes have been served. The objection was specific. The objection was timely, being made when counsel became aware of facts that the Commonwealth had earlier concealed, and before any other witness testified, or before any other event occurred. The trial court did move promptly to correct the asserted error. And on appeal the issue has been preserved for our review, and in disposing of that issue we have had the benefit of the full record made by the trial judge and of his careful discussion of the issue.

The judgment of sentence is reversed and the case is remanded for a new trial.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. While the majority opinion correctly applies the law to the two issues raised by appellant, these issues should not have been dealt with on their merits. They were waived due to a failure to make a timely objection.

Officer Oakley testified that the coat-containing the stolen money and the keys was taken into custody by the police. He further testified that he asked the defendant if they were his keys and, upon receiving an affirmative answer, returned them to him. No objection was made at that time. Defense counsel then conducted a cross examination, without mention of the Miranda or the Mandatory Disclosure violations. Discussions were then held in chambers, also without reference to these issues. Court was then recessed for the day.

A motion for mistrial, on the basis of the evidence regarding the return of the keys, was first made at the beginning of the court session the following day. The trial judge held at that time that “there was no timely objection.” I agree.

In Commonwealth v. Griffin, 271 Pa.Super. 228, 412 A.2d 897 (1979), this Court stated the applicable law on this question.

Case law in this jurisdiction has consistently held that the cornerstone of our waiver doctrine is that issues below not raised in a timely manner are foreclosed for purposes of appellate review. Commonwealth v. Pritchitt, 468 Pa. 10, 359 A.2d 786 (1976). In the vast majority of cases, the rubric “in a timely manner” requires contemporaneous objection; and our rules and cases rigorously enforce the contemporaneous objection rule. See, e.g., Commonwealth v. Chuck, 227 Pa.Superior Ct. 612, 323 A.2d 123 (1974); Pa.R.Crim.P. 1119(b); Pa.R.A.P. 302.

Griffin, supra, 271 Pa.Superior at 236, 412 A.2d at 901.

A factual situation similar to the one before us was present in Commonwealth v. Folino, 293 Pa.Super. 347, 439 A.2d 145 (1981). There alleged error was not objected to immediately. Subsequent to the error, defense counsel continued the cross-examination and, after a brief recess, moved for a mistrial. The court concluded that, “... we may not review this claim as appellants have failed to preserve it with a timely objection.” Folino, supra, 293 Pa.Superior at 352, 439 A.2d at 148. In the case before us, the length of time between the objectionable occurrence and the objection was considerably longer than that in Folino.

Further guidance can be found in Folino. A lack of timeliness was found there because the objection was not made when counsel became aware of the facts which created the grounds for the objection. Id. In the case before us, defense counsel had full exposure to the material ’facts which created grounds for the objection at the time the testimony regarding the keys was given.

First, vis-a-vis the Mandatory Disclosure violation, as soon as counsel had heard testimony about a statement made by the defendant, an objection should have been made. Counsel was aware that no information had been given to her regarding such a statement.

Second, with regard to the Miranda violation, the objection was also tardy. Statements only come under the rule in Miranda if they are incriminatory. Thus, if the testimony about defendant’s statement had not appeared to be incriminatory at the time it was given, an objection need not have been made at that time. In that event, a valid objection could have been made when the facts came into the record which put the statement in an incriminatory light. However, in this case, all the information that made the statement incriminatory was already on the record.

It does appear that no curative measures, short of a mistrial, could have been taken even had the objection been timely made. However, this should not influence the decision to be made here. A contrary result would encourage the meretricious practice of “sandbagging.” Namely, counsel could allow error to enter the record; fail to make a timely objection; wait and see if the trial seems to be progressing in his favor; and, if it is not, make an objection later demanding a mistrial. Then, even if the motion for a mistrial is denied, the issue could be raised on appeal.

We do not insinuate that this is the case here. Nonetheless, we know of no reliable method to distinguish between errors honestly discovered later and those kept hidden for tactical purposes. As a rule of general application therefore, the courts of this state have made unequivocal the requirement that objections be made in a timely fashion in order to be preserved for appellate review. That rule is binding on us in this case.

I would affirm the judgment of sentence.

      . Appellant has argued that the statement should have been suppressed under Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). We do not reach this argument.

      . On appeal, appellee has not countered appellant by arguing this issue. However, this Court “may raise the issue of waiver sua sponte." Commonwealth v. Triplett, 476 Pa. 83 at 90 n. 10, 381 A.2d 877 at 881 n. 10 (1977).

      . While the trial court never withdrew this holding, a suppression hearing was held and the evidence ruled admissible for reasons dealt with in the majority opinion.

      . It is, of course, possible that counsel was not consciously aware of the violation at the moment the testimony was given. We can, however, only judge the timeliness of an objection with regard to the moment when grounds for it appear; when counsel should have become aware of the grounds for an objection. Indeed, any lack of such awareness on counsel's part is irrelevant. In Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, at 257, 322 A.2d 114, at 116 (1974), the Supreme Court of this Commonwealth rejected the shortcomings of counsel as an excuse for a failure to make a timely objection.


author: BECK, Judge:

text:
    456 A.2d 996
    Joseph LALUMERA, Jr., a Minor by His Parent and Natural Guardians, Joseph Lalumera, Sr. and Janet Lalumera, and Joseph Lalumera, Sr. and Janet Lalumera, in Their Own Right v. NAZARETH HOSPITAL and James Joseph Toland, 3rd, M.D. Appeal of NAZARETH HOSPITAL.
    Superior Court of Pennsylvania.
    Argued February 23, 1982.
    Filed Jan. 7, 1983.
    Reargument Denied March 21, 1983.
    Petition for Allowance of Appeal Denied Oct. 6, 1983.

      G. Wayne Renneisen, Philadelphia, for appellant.
    Eugene Spector, Philadelphia, for Lalumera, et al., appellees.
    Before SPAETH, BROSKY and BECK, JJ.
   BECK, Judge:

Appellant Nazareth Hospital appeals an order of the Court of Common Pleas, Philadelphia County, sitting in equity, which denied its petition to open á default judgment.

Appellees Joseph Lalumera Jr., a minor, and his parents filed a complaint in trespass and assumpsit against Nazareth Hospital and Joseph James Toland, 3rd, M.D., on September 25, 1979, alleging negligence in the medical treatment of Joseph Lalumera Jr. while he was a patient in the hospital. From the time the complaint was served on Nazareth, September 26, 1979, a series of errors ensued which culminated in the entry of a default judgment on October 30.

Upon receipt of the complaint, the hospital’s assistant administrator immediately notified its current insurance carrier, Pennsylvania Hospital Insurance Company (PHICO) in the erroneous belief that PHICO was the correct carrier for the claim in question. PHICO telephoned Nazareth on October 3 to advise the hospital that PHICO was not the proper carrier, but for some reason failed to return the papers relating to the claim until October 10. The hospital received them on October 11.

On the same day, October 11, Nazareth notified its prior insurance broker, J.J. Manley, Inc., of the claim. Manley’s vice-president, Mark Toal, assumed that his office had a record of the claim and he instructed a claims clerk to pull the file. The clerk who was given this task was new and inexperienced. She was unable to locate the requested papers and, apparently, was completely unaware that there was any urgency to the request, for she later said that she had “been taking a little time every day trying to locate it” (R. 25). Meanwhile, Toal became preoccupied with other work at Manley’s which kept him from giving the Lalumera claim his immediate and full attention. On October 30 a default judgment was entered. When Toal learned of the default judgment on November 1, the papers were located and sent by messenger to the proper insurance carrier on November 2. On the same day, November 2, counsel for Nazareth entered his appearance, and on November 9 filed a petition to open judgment.

A petition to open a default judgment is addressed to a court’s equitable powers, and is a matter for judicial discretion. The scope of our review is therefore limited to a determination of whether there has been an error of law or a clear, manifest abuse of discretion. Brooks v. Surman Dental Lab., Inc., 262 Pa.Super. 369, 396 A.2d 799 (1979); Kabanow v. Kabanow, 239 Pa.Super. 23, 361 A.2d 721 (1976). It is well settled that a petition to open a judgment may be granted only when three conditions are met: (1) the petition must be promptly filed; (2) the petitioner must be able to show a meritorious defense; (3) there is a reasonable excuse for failure to file a timely answer. Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979); McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971).

In this instance counsel for appellant Nazareth Hospital immediately filed his Entry of Appearance on November 2, and the Petition to Open Default was filed on November 9. Since these actions were taken within ten days of the entry of default judgment, we believe the first requirement, promptness, has been shown.

Nazareth also avers a defense to the cause of action on the merits. The Lalumera claim is based on a hospitalization which occurred in February and March, 1975, and an alleged resulting injury that was discovered in April 1975. Nazareth contends that the claim is thus barred by the two year statute of limitations on personal injuries. The hospital also contends that an action in express or implied contract is similarly barred by 42 Pa.C.S. § 5525. Further, Nazareth argues that Dr. Toland was not an agent, servant, or employee of the hospital but rather Lalumera Jr.’s independent treating physician. Thus, the second requirement for opening the default, the showing of a defense on the merits, is also met.

We turn now to the third requirement for opening the judgment: a reasonable explanation or excuse for the failure to make a timely appearance or file an answer. In this connection, it is not enough to persuade the appellate court that it might have reached a different conclusion regarding the hospital’s explanation. An abuse of discretion is not merely an error of judgment, but a clear and manifest abuse of discretionary power or an error at law. Carson Pirie Scott & Company v. Phillips, 290 Pa.Super. 353, 434 A.2d 790 (1981); Tice v. Nationwide Life Insurance Co., 253 Pa.Super. 118, 384 A.2d 1257 (1978), re’d on other grounds, 284 Pa.Super. 220, 425 A.2d 782 (1981).

For the following reasons we believe the court below erred in failing to accept Nazareth’s explanation of the delay. First, while there were mistakes by several persons, the loss of time in this case is most appropriately attributed to the inexperienced clerical worker at Manley, rather than to any inaction on the part of Nazareth. The Court has found, in the past, that loss of papers by an insurance carrier constituted sufficient legal justification for opening a default. Balk v. Ford Motor Company, supra. This Court has also accepted inattentiveness by an employee as a reasonable explanation because the Court was unwilling to burden a defendant with a default judgment due to a mistake of this kind. Sta-Rite Industries, Inc., Walter King Division v. Century Water Treating, 230 Pa.Super. 285, 326 A.2d 425 (1974). We have opened a default judgment when delay was caused by a company’s manager at a branch officer failing to forward papers in accordance with established procedures. Campbell v. Heilman Homes, 233 Pa.Super. 366, 335 A.2d 371 (1975).

Although the hospital, in this instance, first sent the claim to the wrong insurance company, Nazareth acted promptly when first served with the complaint, and again to correct its original error. On the basis of its past experience with such claims, Nazareth’s administrator had reasonable belief that everything necessary on its part had been done when he sent the claim papers to Manley on October 11, well within the twenty day period for response. In Schutte v. Valley Bargain Center, 248 Pa.Super. 532, 375 A.2d 368 (1977), we accepted delay caused by clerical errors on the part of the defaulting party’s carrier as reasonable excuse, particularly since the litigant had taken all steps that he reasonably believed would result in the protection of his interests.

Second, the purpose of the entry of default judgment is to speed the cause, and prevent a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. The procedure is not intended to give the plaintiff an advantage so that a defense may be defeated without the difficulty of a contest by the defendant. Carson Pirie Scott, supra; Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971). Even errors of counsel, when recognized as oversight rather than deliberate decision not to defend, have been held to constitute legal justification for opening a judgment. Com., Dept. of Transp. v. Nemeth, 497 Pa. 580, 442 A.2d 689 (1982). There has been no showing that the errors which caused the delay in this instance arose from any dilatory or procrastinating tactics on the part of the hospital. Indeed, they arose from the clerical staff of other parties, namely the hospital’s present insurance carrier and its prior broker.

Finally, we find that in this case Lalumera never gave any notice to Nazareth of its intention to take a default judgment. Today, Pa.R.C.P. 237.1 requires a party to give ten days notice after the time for action has elapsed of such an intention. Although Rule 237.1 did not become effective until February 1, 1980, (after the default judgment was entered against Nazareth), the purpose of the rule, as set out in its Note, addresses practices current to the underlying action:

Explanatory Note—1979
The increasing number of petitions being filed in the common pleas courts throughout the Commonwealth to open default judgments and the ensuing appeals have become a matter of concern to the courts.
One part of the problem arises from the entry of “snap judgments” without notice, a practice sharply disapproved by the Superior Court, and the lack of notice in frequently singled out as an important factor justifying the opening of a default judgment.
The Superior Court in Silverman v. Polis, 230 Pa.Super. 366, 326 A.2d 452 (1974), and Brooks v. Surman Dental Lab, Inc. [262] Pa.Super. [369], 396 A.2d 799 (1977), recommended a requirement of prior notice of intent to enter a default judgment, and this has been required by local rule in a number of counties. New Rule 237.1 will make the prior notice a statewide requirement.

Other prior case law maintains the same principle. In KDI Sylvan Pools, Inc. v. Delta Plastics Company, Inc., 268 Pa.Super. 235, 239, 407 A.2d 1333, 1335 (1979) we stated, “Under most circumstances we have considered it to be the most equitable policy to require counsel to contact opposing counsel before entry of a default judgment”. In Brooks, supra, 262 Pa.Superior 373-374, 396 A.2d 802, we noted:

“Although the Rules of Civil Procedure do not contain a notice requirement, we have repeatedly chastized counsel for failing to accord that courtesy. In Silverman v. Polis, 230 Pa.Super. 366, 370-71, 326 A.2d 452, 454-55 (1974), Judge Cercone wrote for a majority of this court:
“ ‘One very frequent element in the sets of circumstances of cases where a default judgment has been upheld is notice to opposing counsel of the intent to enter a default judgment. Conversely, the lack of such notice is frequently singled out as an important factor justifying the opening of a default judgment. [Citations omitted.]’ ”

Before Rule 237.1 became effective, this Court, in opening a default judgment, cautioned that “The reciprocal good faith, mutual respect and courtesy that normally exist among members of the legal profession should have prevented the entry of a ‘snap’ judgment without notice.” Quaker Transit Co. v. Jack W. Blumenfeld & Co., 277 Pa.Super. 393, 419 A.2d 1202 (1979).

Because the delays were caused by those other than appellant Nazareth, because Nazareth acted in timely fashion in response to service of the complaint and to petition to open judgment, and because appellee Lalumera failed to notify Nazareth of its intention to enter a default judgment, we find that the court below erred in its exercise of discretion.

Accordingly the order of the lower court is reversed, and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

SPAETH, J., disqualified himself.


author: HOFFMAN, Judge:

text:
    456 A.2d 1000
    Henry SPRAGGINS, Gwendolyn Spraggins, Eddy L. Hooper, Barbara Hooper and Sharon Stephens v. Richard J. SHIELDS and John Shields and Eleanor Shields. Appeal of Richard J. SHIELDS.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1982.
    Filed Jan. 7, 1983.
    Reargument Denied March 21, 1983.
    Petition for Allowance of Appeal Denied Sept. 26, 1983.

      James M. Marsh, Philadelphia, for appellant.
    Allen L. Feingold, Philadelphia, for appellees.
    Before ROWLEY, HOFFMAN and VAN der YOORT, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in granting judgment n.o.v. for appellees. We agree and, accordingly, reverse and reinstate the jury’s verdict.

On May 3, 1975, a vehicle operated by appellee-Hooper collided with appellant’s vehicle, resulting in injury to Hooper’s two passengers, appellees Spraggins and Stephens. Spraggins and Stephens sued both drivers and, in addition, Hooper sued appellant, who cross-claimed for property damages. At trial, the lower court granted appellant’s motion for a directed verdict against Hooper, whereupon appellant withdrew his counter-claim against Hooper. The jury then determined that Hooper was negligent and appellant was-not, and awarded a total of $35,000 to Stephens and Spraggins. After the jury rendered its verdict, the lower court granted judgment n.o.v. against appellant, prompting his appeal.

Appellant contends that the lower court erred in basing its judgment n.o.v. on appellant’s failure to look left as he entered the intersection. “The rendering of a judgment n.o.v. is a drastic act because it overturns the findings of a jury, the fact-finding tribunal in our procedure. Judgment n.o.v. should be entered only when the facts are such that no two reasonable persons could fail to agree that the verdict was improper.” Cummings v. Nazareth Borough, 427 Pa. 14, 25-26, 233 A.2d 874, 881 (1967). “It is well settled that a judgment n.o.v. will be entered only in a clear case and that any doubts will be resolved in favor of the verdict.” Stewart v. Chernicky, 439 Pa. 43, 53, 266 A.2d 259, 265 (1970) (citations omitted).

Viewing the facts in the light most favorable to the verdict winner, they are as follows: At approximately seven o’clock in the morning of May 3, 1975, Hooper’s automobile struck appellant’s at the intersection of Routes 1 and 322 in Concord, Pennsylvania. Appellant testified that he was stopped behind a fire engine at a red light on Route 322 when he noticed Hooper’s vehicle to the left, traveling down a slight grade on Route 1. While waiting for the light to change, appellant again noticed Hooper’s vehicle. When the light turned green, appellant followed the fire engine slowly through the intersection and as he was part way through, looked to the left again and saw Hooper’s vehicle continuing toward him. Appellant realized it was too late to avoid the collision and moved toward his passenger to avoid injury. Spraggins testified that as Hooper’s car approached the intersection from the top of a slight grade, the car slowed down, from about 35 to 30 miles per hour, as Hooper eased up on the gas. (N.T. June 30, 1981 at 36). Numerous references in the record indicate that at the time of the collision, appellant had a green light and Hooper, a red light.

Generally, negligence is a question to be submitted to the jury upon proper instruction. The court shall not remove the question from its determination unless the facts leave no room for doubt. Cf. Correll v. Werner, 293 Pa.Superior Ct. 88, 437 A.2d 1004 (1981) (lower court reversed for failing to submit question of contributory negligence to the jury.) See generally Rasmussen v. Dresnin, 382 Pa. 51, 55-56, 114 A.2d 182, 184 (1955) (although plaintiff may have entered a dangerous zone because defendant went through red light, “it would distinctly be a matter for the jury to determine whether such possible danger came within the cautionary purview of a reasonably prudent person.”); Hartman v. Gieraltowski, 198 Pa.Superior Ct. 316, 181 A.2d 688 (1962) (denial of a new trial error where question of negligence taken away from the jury); Highway Express Lines, Inc. v. General Baking Co., 190 Pa.Superior Ct. 597, 155 A.2d 450 (1958) (question of negligence of driver of skidding car for the jury).

Specifically, the question of when a driver is negligent for failing to look upon entering an intersection with the light in his favor, requires a determination by the jury of the reasonableness of his actions. Zumbo v. Ellis, 232 Pa.Superior Ct. 566, 568, 334 A.2d 770, 771 (1975) (“an operator of a vehicle at a controlled intersection is not negligent as a matter of law, if absent any warnings to the contrary, he relies on another operator’s obligation to observe traffic controls.”); Jones v. Williams, 358 Pa. 559, 564, 58 A.2d 57, 60 (1948) (“the assumption that another driver will obey the traffic rules cannot be adjudged negligent unless the person making the assumption has timely warning that his confidence in the other’s law-abidingness is misplaced.”) The lower court properly instructed the jury that the question of appellant’s negligence was for them. The jury reasonably concluded that appellant demonstrated reasonable care in looking at the intersection while stopped and in anticipating that Hooper’s car would continue to slow down and then stop completely at the red light. Further, appellant was following the fire engine, which had no problem crossing the intersection.

The lower court, in usurping the jury’s function, contradicted its own instructions and the law of the Commonwealth. The jury heard sufficient evidence to support appellant’s reasonable reliance on Hooper’s stopping at the red light. Its decision should not be disturbed. Accordingly, we reverse the lower court and reinstate the jury’s original verdict.

Reversed.

       Although earlier cases required a driver to look at the time he entered a controlled intersection, Smith v. United News Co., 413 Pa. 243, 247, 196 A.2d 302, 305 (1964) ("a motorist who has the green light must observe the conditions at the intersection at the time he enters it to be reasonably assured that his journey will be safe.”); Smith v. Philadelphia Transportation Co., 202 Pa.Superior Ct. 278, 195 A.2d 168 (1963) (additional defendant entered intersection relying on light, without looking, held negligent as a matter of law), later cases have allowed jury determinations of negligence and contributory negligence to stand, thereby implicitly holding drivers to a reasonable standard of care appropriate to the circumstances. See Andrews v. Long, 425 Pa. 152, 154, 228 A.2d 760, 761 (1967) (judgment n.o.v. not justified—driver saw truck 80 feet away with a red light as he stood about 15 feet from the intersection, "there was nothing to tell him that the truck driver would defy the traffic warnings, ignore the law of the road, and proceed headlong into obvious danger.”)


text:
    456 A.2d 1002
    PEUGEOT MOTORS OF AMERICA, INC. v. John STOUT, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Feb. 11, 1983.

      Joseph R. Siegert, Philadelphia, for appellant.
    Sarah Thompson, Philadelphia, for appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.

       Died Jan. 30, 1983. Decision was reached prior to the death of Judge Price;

   PRICE, Judge:

On April 13, 1978, John Stout was preliminarily enjoined from selling, titling or transfering two cars which appellee, Peugeot Motors of America, Inc. (“Peugeot”), had sold to Mr. Stout allegedly for “parts only”. On December 3, 1979, the Honorable Victor J. DiNubile entered a decree nisi in favor of Peugeot, permanently enjoining Stout from selling one of the cars and from titling the other automobile. On May 1, 1980, after hearing argument on Mr. Stout’s exceptions and accepting additional briefs, Judge DiNubile dismissed Stout’s exceptions and made the decree nisi final. Stout appeals from this decree.

The facts of the case are as follows: During November 1977, Peugeot received at its New Jersey port facilities three Peugeot vehicles which were damaged in ocean transit. Peugeot classified each of these three vehicles a “constructive total loss” (“CTL”) after determining that the vehicles were unsafe and unfit for highway use. The serial numbers affixed to or stamped upon each car were removed or obliterated. Peugeot then telephoned several Peugeot dealerships, including the one owned by Stout, and suggested that each dealer inspect the vehicles and submit bids for them.

Mr. Stout denies ever having been told that the vehicles were to be sold for parts only; whereas Peugeot claims that this was made clear from the beginning. Mr. Stout inspected the cars and submitted bids. For the two cars in controversy, he bid $1,650 and, as this was the highest offer, Peugeot orally informed Mr. Stout on January 16, 1978 that his bids were accepted. Bank approval for Stout to draw on his line of credit was given on February 13, 1978. The accepted bid identified the subject vehicles, described them as “damaged vehicles”, acknowledged Stout’s inspection of them, specified the price and was dated January 13, 1977, (which was agreed to actually be 1978).

Stout admits that late in January a Peugeot employee informed him that the vehicles would have no warranties, serial number plates, or certificates of origin. (R. 83a.) Apparently Stout did not consider this information to be significant as he did not question Peugeot about this unusual occurrence. Without these safety certification plates, cars may not be resold to a consumer.

On February 16, 1978, Peugeot drew up and mailed two invoices to Stout, spelling out thereon the date, dealer, year, model, type, serial number, -exterior color, and price of the automobiles. The invoices also bore on their faces the following typewritten words: “Above car is a constructive total loss and is not to be restored or repaired. CTL vehicle is sold for parts salvage only.” (R. 323a). Stout admits that he read the invoices and their terms, but again he apparently did not consider the language to be a problem and did not question Peugeot as to the restriction.

Thé vehicles were delivered in the middle of March. Peugeot discovered thereafter that Stout was in the process of restoring one of the cars for sale and ultimate use on the highway. Peugeot sent a telegram warning Stout that.he was in violation of his contract by repairing the cars and that any sale would also be a violation. Stout sold one of the cars to a Delaware resident for $7,500 that same day, April 6, even though the car did not have title, or an identification number. Stout was allegedly trying to obtain a reconstructed title. As Stout was repairing the second car, a preliminary injunction was issued prohibiting him from the sale or repair of the second car or from any further action in titling the first car. Stout agreed to the entry of this injunction without prejudice and the case went to trial in June 1979.

The lower court did not find Stout’s version to be convincing and held that the agreement was that the cars were to be sold for parts only. Although much of Peugeot’s evidence was circumstantial, such as the removal of the serial number and the invoices, the court found it to be credible and held that any further action by Stout to repair or title the automobile would cause Peugeot to suffer irreparable harm because of the potential liability in tort for a defective product.

The issues in this case are whether Peugeot proved that the oral agreement between the parties was that the cars were to be sold for parts only and whether the alleged harm was sufficient to necessitate an injunction. Stout also raises various evidentiary issues, including whether the invoices were properly admitted and if his direct evidence could be contradicted by circumstantial evidence, but all of these considerations concern the question of what was agreed to by the parties.

Our scope of review on appeal is limited. “The trial judge sitting in equity as a chancellor is the ultimate fact finder.” Balin v. Pleasure Time Inc., 243 Pa.Superior Ct. 61, 68, 364 A.2d 449, 453 (1976). It is well recognized that a chancellor’s findings of fact, when supported by competent evidence, have the weight of a jury verdict. Fascione v. Fascione, 272 Pa.Superior Ct. 530, 416 A.2d 1023 (1979). “The chancellor’s findings are entitled to particular weight in a case in which the credibility of the witnesses must be carefully evaluated because he has had the opportunity to hear them and observe demeanor on the stand.” Vento v. Vento, 256 Pa.Superior Ct. 91, 95, 389 A.2d 615, 617-18 (1978), quoting Stauffer v. Stauffer, 465 Pa. 558, 567, 351 A.2d 236, 240 (1976). The findings of fact of the chancellor should not be set aside unless the error is manifest. Van Schoiack v. United States Liability Ins. Co., 390 Pa. 27, 133 A.2d 509 (1957). “Therefore only if it is plain that ... the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the chancellor.” Cardamone v. University of Pittsburgh, 253 Pa.Superior Ct. 65, 384 A.2d 1228 (1978).

The chancellor found that the “credible evidence demonstrates that the cars were sold for parts only.” Slip op. at 6. We accept this finding and hold that it is adequately supported by the voluminous record. The determination of the contents of a mixed written and oral contract is for the factfinder unless there is no conflicting evidence. 8 P.L.E. Contracts § 177 (1971).

The evidence in support of the chancellor’s findings was circumstantial in nature. Stout admitted that he was told from the outset that the serial numbers would be removed from the cars and that no certificate of origin would be issued. (R. 41a). The procedures followed in bidding on and receiving the cars differed from the ordinary procedures in the case of “used cars” to be repaired (R. 104a-110a, 200a to 204a). Stout purchased the cars for a fraction of the normal price even for damaged cars. (R. 300a-308a). Peugeot’s business records indicated that they intended to sell the cars for parts only (R. 92a-94a, 97a-107a), and there was a business custom of classifying damaged cars in this way (R. 128a). As mentioned previously, Stout failed to respond to the invoices which clearly set forth the restrictions, (R. 81a-87a), although he did read them. (R. 321a-322a). Peugeot had little to gain from changing its, story and advanced a strong reason for not having the cars resold, i.e., the potential of strict liability lawsuits.

A party may establish its entire case on circumstantial evidence. In Deaver v. Miller, 260 Pa.Superior Ct. 173, 177-178, 393 A.2d 1209, 1211 (1978), we stated:

Although a jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but must have evidence upon which logically its conclusion may be based, circumstantial evidence may be adequate to prove a plaintiff’s case. It is not necessary that every fact or circumstance be established unerringly. Winkler v. Seven Springs Farm, Inc., 240 Pa.Superior Ct. 641, 359 A.2d 440 (1976), affd. 477 Pa. 445, 384 A.2d 241 (1978).

All of this evidence, though circumstantial, is more than sufficient to support the chancellor’s findings concerning the contents of the oral contract.

Stout, on the other hand, relied primarily on his direct testimony to prove his case, although he also offered much evidence concerning the alleged safe condition and easy repair ability of the cars. Stout contends that his direct testimony could not be contradicted by Peugeot’s circumstantial evidence. This is simply incorrect. It is up to the factfinder to judge the credibility of evidence, whether it be circumstantial or direct testimony. In Stack v. Wapner, 244 Pa.Superior Ct. 278, 368 A.2d 292 (1976), the court held that circumstantial evidence (the absence of any entry on a medical chart) was sufficient to contradict the defendant’s direct testimony. In that case, we reaffirmed the principle that:

... [Wjhere a litigant calls his adversary as for cross-examination ... the testimony thus obtained is conclusively taken to be true if it is not rebutted by other evidence [citation omitted]____ Again, this general rule that a party calling his opponent as for cross-examination is [bound] by this testimony is subject to the exceptions that there may be such a degree of improbability in the statements themselves as to deprive them of credit, or that the circumstances themselves may constitute sufficient contradiction [citations omitted].

Id., 244 Pa.Superior Ct. at 284, 368 A.2d at 295 [emphasis added]. Thus, it was within the discretion of the chancellor to find that Stout’s testimony was not credible.

Stout also takes exception to the fact that the Peugeot employee to whom he originally spoke did not testify at trial. Stout’s conclusion is that a negative inference must be drawn from this absence—i.e. that the employee would have corroborated Stout’s position. The rule to which Stout refers, however, applies only when the evidence that is not offered is within “the control of the party”. Instantly, Stout himself testified that this employee was no longer with Peugeot. (R. 230a). Thus he was not in the control of Peugeot and was beyond subpoena reach. Even if the employee had been in Peugeot’s control, it would have been an inference which the chancellor may or may not have accepted.

In any contracts case, one of the major issues concerns the determination of what the parties intended. Stout contends that the evidence shows that the parties intended that the contract was for the sale of the cars without any prohibition on resale. Peugeot’s alleged motivation for the prohibition was a fear of strict liability lawsuits and the possibility of losing its reputation for building sturdy cars. Stout claims that Peugeot invented the prohibition against resale in order to avoid being embarrassed in its relationship with the insurance company. Stout, however, did not understand that Peugeot was to get the same amount of insurance whether or not the cars were resold (R. 103a-104a, 113a-114a, 227). Peugeot collected the insurance based on a belief that the cars could not be safely repaired, a belief that was based in part from the insurance company’s own investigator. Stout has offered no other reason as to why Peugeot would not want the cars to be repaired. It adds to Peugeot’s credibility that it appears as if there would be no other motivation for such a prohibition except the one given by Peugeot (i.e. damage to reputation and potential liability).

Both sides also offered testimony concerning the feasibility of repairs as evidence of the contract. The chancellor allowed the testimony only for the purpose of credibility. Stout contends that this evidence was virtually ignored in the lower court and should have been given more weight as evidence of the contract itself. We agree with Judge DiNubile who stated during the hearing:

I will allow it [testimony regarding repair] again only for the purpose of credibility. If I believe that, the testimony of the plaintiff in this case, that they sold it for parts because in their opinion they didn’t want this car to go out because of the damage to it, whether fifty people come in and say this car was safe, makes no difference.
However, I am allowing this in for the purpose of making the determination whether they would let a car go out if it were in the condition that your witnesses are testifying it was in after it was repaired. For credibility only. The test is not what somebody else has to say; the test is what kind of car the sellers want on the market with their name on it. (R. 403a-404a).

Therefore, even assuming arguendo that the cars had been repaired safely, our decision is not altered. Again, the credible evidence supports Peugeot’s contention of a good faith belief that the cars could not be repaired safely and in a manner so as not to risk Peugeot’s reputation for durability.

Stout also argues that witnesses for Peugeot should not have been allowed to testify as to the alleged prohibition on resale since there was a written contract. The parol evidence rule is only applicable where parties intend a writing to represent the complete and exclusive agreement between the parties. There is no such intent here, as the bid letter (which Stout claims to represent the contract) is incomplete on its face, mentioning nothing but the price. Although Peugeot could not offer parol evidence to show that a different price was agreed to, Peugeot can, under § 2-202 of the Uniform Commercial Code, offer testimony concerning items not discussed in the bid letter. This letter is not “sufficiently comprehensive to embody the aim and object of the parties”, and therefore oral evidence is permissible. Peugeot’s position in this case is not inconsistent with the terms contained in the bid letter.

Stout also objects to the introduction of the invoices into evidence. (R. 67a-82a, 481a-482a). The invoices, as discussed previously, contained the prohibition against repair and resale. We agree with the chancellor that the invoices were admissible for the purpose of establishing the intent and the credibility of the parties. In situations involving oral contracts, ascertaining the intent of the parties is indeed a difficult task. The invoices and damage reports (as well as Stout’s evidence concerning repairs) are all of some aid in determining what was within the minds of the parties. The invoices, which admittedly were read by Stout and to which he did not object, help to show that Peugeot was operating under the premise that the cars were to be sold for parts only and that Stout was aware of this fact. (R. 321a-326a).

Finally, Stout argues that Peugeot has not proved that a permanent injunction is in order. Peugeot was potentially liable in tort if the products were found to be defective and if that defect caused an accident. While it is true that even if there was such an occurrence, that the defect could be traced to the changes made by Stout, there is also the possibility that this factual question would be resolved otherwise. Peugeot should not be forced to face exposure to such possible liability unnecessarily.

Stout also considers to be significant the fact that he offered to personally indemnify Peugeot. Stout has not shown that he would be able to pay any possible award (which could be a substantial figure in such a liability case). While Peugeot can not prove the danger at this time, it is the potential of liability that constitutes the need for an injunction.

Thus all of the elements necessary for the issuance of a permanent injunction have been established. Actual and substantial injury has already occurred and is threatened in the future by Stout’s actions. Stout violated Peugeot’s legal rights under the contract. The injury threatened to Peugeot is substantial and irreparable. Because the threatened injury can not be compensated for in money damages, there is no adequate remedy at law.

For all the above reasons, the lower court’s order granting a permanent injunction is affirmed.

      . 15 U.S.C. § 1391 et seq.

      . Appellant’s statement of the questions is misleading and verbose (see Pa.R.A.P. § 2116.) Thus we find it necessary to rephrase the issues involved in a manner that is more consistent with appellee's counterstatement of the questions.

      . See also, Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978) cert. den. and app. dismd. Epstein v. Adler, Barish, Daniels, Levin & Creskoff, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979); Baker v. Zingelman, 259 Pa.Superior Ct. 441, 393 A.2d 908 (1978); Cardamone v. University of Pittsburgh, 253 Pa.Superior Ct. 65, 384 A.2d 1228 (1978).

      . See also Reifschneider v. Reifschneider, 413 Pa. 342, 344, 196 A.2d 324, 325 (1964); Kimball v. Barr Township, 249 Pa.Superior Ct. 420, 378 A.2d 366 (1977).

      . See Bastian v. Marienville Glass Co., 281 Pa. 313, 126 A. 798 (1924); Philadelphia Use of Faith v. Stewart, 201 Pa. 526, 51 A. 348 (1902); Mead & Speer Co. v. Krimm, 43 Pa.Superior Ct. 376 (1910).

      . Stout purchased the cars for $1,650. Normally the purchase price would have been $8,000. The retail value of the cars was between $8,600 and $9,500. Stout spent $1,500 on each vehicle for repairs.

      . Stout cites to the Trial Evidence Handbook, Sec. 2.15, p. 49.

      . Stout challenges the introduction of damage appraisal reports by Peugeot. The chancellor held that these reports were admissible as business records to show whether or not Peugeot’s belief that the cars could not be repaired was reasonable. We agree with this finding.

      . Stout’s own witness testified as to Peugeot’s reputation on cross examination, an excerpt of which follows.
      Q. Now, you mentioned something earlier about a strength factor which I don’t think I understood. You said something about the way a Peugeot was built and it had a certain strength factor. A. Well, Peugeot is known around the world to be one of the toughest and strongest cars ever built. That means the Peugeot people are concerned into how the car is built that’s where I say the car is built with a strength factor that it’s maybe one of the best we buy on the market today.
      p. I still don’t understand the term. What is strong? What do you mean strong?
      A. Well, as an example: A company like Peugeot would eventually employ 4,000 Spot welds in a car.
      Q. Four thousand what?
      A. Spot welds. I believe that Peugeot feels that four thousand may not be enough. So that their standards are higher.
      BY THE COURT:
      Q. When you say strength, you mean it is a stronger built car? A. Stronger built car.
      Q. It could withstand more than other cars can?
      A. Yes, yes.
      BY APPELLEE’S ATTORNEY:
      Q. ■ And you also said, did you not, that that was a major concern at Peugeot, their reputation?

        A. It’s one of their major concerns, the reputation to build a strong car.”
      [R. 467a-468a]

      . 13 Pa.C.S.A. § 2202, which provides:
      § 2202. Final written expression: parol or extrinsic evidence
      Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented:
      (1) by course of dealing or usage of trade (section 1205) or by course of performance (section 2208); and
      (2) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.
      Note that under subsection (2) the writing would have to be a complete and exclusive statement. Stout’s letter (see footnote 11 below) consisted only of the prices to be paid for the cars and was no more than an offer which Peugeot accepted by telephone. One of the bids was not accepted, further evidencing the fact that the letter was not to act as the contract.

      . The context of the bid letter is as follows:.
      Gentlemen:
      Following are our bids on damaged vehicles which I have inspected:
      Color Ser # Bid
      1476 2757195 $ 910.00
      1384 2761061 $1650.00
      1394 2768068 $1650.00
      Very truly yours,
      JOHN STOUT

      . Gift v. Myers, 273 Pa.Superior Ct. 310, 314, 417 A.2d 664, 666 (1979). See also Gianni v. R. Russell & Co., 281 Pa. 320, 126 A. 791 (1924) in which the court states:
      The writing must be the entire contract between the parties if parol evidence is to be excluded and to determine whether it is or not the writing will be looked at and if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking, were reduced to writing, (citing cases)

        Id., 281 Pa. 323, 126 A. 792.

      . We do agree with Stout that the invoices did not become part of the contract under 13 Pa.C.S.A. § 2207 which Peugeot’s counsel had argued at trial.

      . Raitport v. Provident National Bank, 451 F.Supp. 522, 530 (E.D.Pa.1978).

      . U.S. v. American Friends Service Committee, 419 U.S. 7, 95 S.Ct. 13, 42 L.Ed.2d 7 (1975); Williams v. Bridy, 391 Pa. 1, 7, 136 A.2d 832, 836 (1957), H. Daroff & Sons, Inc. v. Vitullo, 350 Pa. 501, 506-07, 39 A.2d 595, 598-99 (1944).

      . Miller v. American Tel. & Tel. Corp., 344 F.Supp. 344, 347-350 (E.D.Pa.1972).