author: MONTEMURO, Judge:

text:
    485 A.2d 470
    COMMONWEALTH of Pennsylvania v. Charles J. GRISCAVAGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 31, 1984.
    Filed Nov. 30, 1984.
    Petition for Allowance of Appeal Granted June 24, 1985.

      Robert E. Dalton, Jr., Public Defender, Blossburg, for appellant.
    James E. Carlson, District Attorney, Wellsboro, for Commonwealth, appellee.
    Before MONTEMURO, JOHNSON and HOFFMAN, JJ.
   MONTEMURO, Judge:

This matter is before the court on the appeal of Charles J. Griscavage from judgment of sentence on convictions of driving under the influence of alcohol or a controlled substance, and three vehicular summary offenses. The issues in this appeal relate only to appellant’s conviction on the charge of driving while under the influence of intoxicating liquor. He contends that the evidence produced at trial was insufficient and that the verdict was against the weight of the evidence.

The test for evaluating claims based on the sufficiency of the evidence is:

[WJhether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence____ Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered____ Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. (Citations omitted).

Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979).

Viewing the evidence in this light, the record reveals the following: In the early morning hours of January 30, 1983, Officer Thomas Young, II, of the Wellsboro Police Department, was conducting a security check of several business establishments along Route 6 in Wellsboro. At approximately 12:40 A.M., Officer Young heard a vehicle with its engine “revving quite high” approaching on Route 6. N.T. July 20, 1983, at 12. A green Chevrolet came into view, and Officer Young observed that it was traveling in “gross excess” of the posted 45 m.p.h. speed limit. Id. at 13. In order to pursue the Chevrolet, Officer Young had to turn his police cruiser around, and in doing so, he temporarily lost sight of the Chevrolet. Officer Young regained sight of the vehicle as it was entering a curve about one-quarter mile beyond him. The officer saw the Chevrolet’s brake lights come on, and noticed that it had crossed over the center of the highway. After coming around the curve, the officer came upon an accident involving the pursued Chevrolet and another vehicle which had been in the oncoming lane. The accident took place at about 12:44 A.M.

Officer Young went to the Chevrolet first and found the appellant slumped over the steering wheel. He was unable to open the door on the driver’s side of the Chevrolet because of the damage from the collision, so he gained access to the vehicle from the passenger’s side. The appellant had a large laceration on his forehead and was bleeding profusely. The appellant was conscious, and when asked by the officer if he was all right, he responded “yes.” Id. at 18. In talking to the appellant, Officer Young detected “an odor of alcohol emanate from his person.” Id. The officer then went over to the second vehicle which he discovered had sustained more damage than the Chevrolet. Its driver, Sandra Gorcas, was lying on the seat with a severe gouge on her forehead. At that point, the ambulance arrived and the appellant and Ms. Gorcas were taken to Soldiers and Sailors Memorial Hospital.

Officer Young stayed at the scene for about half an hour to clean up debris and examine the area. He observed skid marks roughly fifty feet (50') in length in the appellant’s lane of travel, crossing over the center line at the beginning of the curve, and continuing to the point of impact. He noticed that the roadway was dry although it had been somewhat overcast that evening.

Officer Young proceeded to the hospital where, at some time between 1:19 A.M. and 2:32 A.M., he spoke to the appellant in the emergency room. The officer advised the appellant that he wanted a. blood sample taken for a alcohol/blood test, and informed him of his rights. The appellant verbally consented and was then asked three quick questions by the officer. First, the officer wanted to know if the appellant had spotted the police cruiser when it had been parked along the roadway. The appellant indicated that he had not because as he drove down that section of Route 6, his attention had been drawn to the cars parked in the lot of the Horseshoe Inn. Secondly, the officer wanted to know if the appellant had had anything to drink prior to the accident. The appellant replied that he had had “a few.” Id. at 25. Finally, Officer Young inquired why the appellant had been traveling so fast. The appellant responded that he guessed he was in a hurry to get home.

At 3:15 A.M. the lab technician drew blood from the appellant for the purpose of a alcohol/blood analysis. Before withdrawing appellant’s blood, the technician asked the appellant if he was Charles Griscavage, and he replied that he was. The technician then made sure that the appellant knew what was being done and why. She testified that the appellant understood, that he gave her no difficulty, and that she could not tell from her short observation whether or not he had been intoxicated. The lab test subsequently resulted in a reading of .09% ethanol alcohol in appellant’s blood by weight.

Dr. Thomas E. Davies was the emergency room physician who treated both the appellant and Sandra Gorcas the night of the accident. Dr. Davies stated that he examined the appellant when he came in, and that his injuries consisted of severe lacerations involving the forehead, upper eye lids, and the bridge of his nose; a contusion of the chest from hitting the steering wheel; and some problems with breathing. Dr. Davies then spent roughly two hours in surgery with Sandra Gorcas, and afterwards returned to appellant to suture his lacerations. Appellant required over 100 sutures, and during this process Dr. Davies spoke with him briefly and explained what he was doing. Dr. Davies testified that at no time did the appellant appear to him to have been intoxicated, and that he saw no evidence that the appellant had been drinking.

The appellant took the stand to recount the events of January 29, 1983. The appellant was eighteen years old on that date, and lived with his mother in Wellsboro. He had stayed around the house during the day, watching television and shoveling snow. At about 6:30 P.M. his friend, Joseph Mann, came to the house accompanied by two female friends. In the house was a six-pack of bottled beer and two additional bottles of beer which remained from a New Year’s Eve party. The four split the beer, each having two bottles. The appellant testified that he finished his second beer at about 8:00 P.M., and that he didn’t have anything else to drink the rest of the night. The appellant and his friends watched television and played video games until shortly before 11:00 P.M. At that time they all departed, with appellant heading to Mr. Donuts to pick up his girlfriend, Chris Warriner, who worked there. Joseph Mann testified and corroborated this account.

The appellant arrived at Mr. Donuts a little after 11:00 P.M. Because he was late, Chris Warriner had already been picked up by her grandfather. Richard Cruttenden, appellant’s former teacher and coach, was seated at Mr. Donuts having coffee. The appellant approached Mr. Cruttenden and talked with him for about five minutes. Mr. Cruttenden testified that he noticed no alcohol on the appellant’s breath, that the appellant was in control of himself in all ways, and that in his opinion the appellant was not visibly intoxicated.

The appellant then drove to Chris Warriner’s home, and arrived there around 11:15. Chris Warriner lived with her aunt, Paula Warriner. Paula Warriner testified that she, her niece, and the appellant talked and watched television until about 12:45, when the appellant left her home. Paula Warriner stated that she kept no alcohol in the house, that the appellant drank no alcohol while he was there, that she didn’t smell the odor of alcohol on the appellant, and that the appellant did not act as if he had had anything to drink that evening. Chris Warriner confirmed that there had been no consumption of alcohol that evening at her aunt’s house. She also testified that she had been seated right next to the appellant, and that she had kissed him, but did not detect any odor of alcohol.

Finally, the appellant testified as to his drive home. He stated that as he went around the curve, his car started to slide. The appellant thought that he might have hit a patch of ice or a wet spot. The next thing he noticed was the headlights of an oncoming car, and then the two vehicles collided.

To establish that the appellant was guilty of driving under the influence of intoxicants, the Commonwealth had to prove the appellant was (1) operating a motor vehicle (2) while under the influence of intoxicants. Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980). Appellant does not contend that the Commonwealth failed .to prove the first element. The only question raised here is whether the evidence was sufficient to prove the second element.

In determining whether the Commonwealth proved the second element, the following standards have evolved:

The statute does not require that a person be drunk, or intoxicated, or unable to drive his automobile safely, in traffic, but merely that the Commonwealth prove beyond a reasonable doubt that defendant was operating his automobile under the influence of intoxicating liquor.
The statutory expression ‘under the influence of intoxicating liquor’ includes not only all the well known and easily recognized conditions and degrees of intoxication, but also any mental or physical condition which is the result of drinking alcoholic beverages and (a) which makes one unfit to drive an automobile, or (b) which substantially impairs his judgment, or clearness of intellect, or any of the normal faculties essential to the safe operation of an automobile.

Commonwealth v. Horn, 395 Pa. 585, 590-91, 150 A.2d 872, 875 (1959);. see also Commonwealth v. Arizini, supra; Commonwealth v. Long, 131 Pa.Super. 28, 198 A. 474 (1938). The crux of this second element is a causal connection between the accused’s imbibition and his unsafe driving — without evidence of such a causal connection, a jury could not reasonably base a finding that the accused’s driving was influenced by his drinking! Commonwealth v. Cave, 219 Pa.Super. 512, 281 A.2d 733 (1971).

The trial court held that the officer’s detection of the odor of alcohol, the appellant’s admission of drinking, the .09% alcohol/blood result, and the officer’s observations of appellant’s operation of the vehicle which led to the accident, combined to form a “reasonable inference” that the appellant was unable to safely operate his vehicle due to intoxicants. Lower Court Opinion at 2. While this evidence certainly supports a suspicion or conjecture that the appellant failed to safely operate his vehicle as a result of intoxicants)' a guilty verdict may not be based on mere suspicion or surmise. Commonwealth v. Gordon, 329 Pa. Super. 42, 477 A.2d 1342 (1984).

Looking closely at the evidence, the first three pieces of evidence — the odor of alcohol, the admission of drinking, and the .09% alcohol/blood result — reflect merely that the appellant had been drinking. This evidence does not support any causal connection that such drinking was responsible for appellant’s unsafe driving.

The evidence concerning the odor of alcohol about the appellant’s person came from Officer Young. The officer neither described the odor of alcohol as “strong”, nor observed any other symptoms which would indicate that appellant’s faculties had been impaired. To the contrary, appellant was cooperative, responded appropriately to the officer’s questions, and did not exhibit either slurred speech or bloodshot eyes. Understandably, the officer was never asked whether in his opinion the appellant was intoxicated or visibly under the influence of alcohol. In addition, none of the other persons with whom appellant came into contact that evening — the lab technician, Dr. Davies, Richard Cruttenden, Paula Warriner, and Chris Warriner — noticed any indications that the appellant was under the influence.

The trial court also pointed to the evidence that the appellant had admitted drinking. In reply to a question of Officer Young, the appellant stated that he had had “a few.” This evidence accounts for the odor of alcohol detected about appellant’s person. This vague admission by itself relays only that within an indeterminate period of time prior to the accident, the appellant had consumed a small but limited number of drinks.

The combined evidence of the odor of alcohol and the admission of having had “a few” establishes only that the appellant had consumed alcohol that evening, and does not demonstrate that the appellant was under the influence at the time of the accident. In fact this evidence standing alone, would be inadmissible. It is well-established that evidence showing only the fact of consumption of alcohol or the odor of alcohol is irrelevant to the question of whether a person was under the influence of alcohol at the time of a vehicular accident. However, such evidence may become admissible when joined with additional facts which reasonably establish a degree of intoxication which proves unfitness to drive. Critzer v. Donovan, 289 Pa. 381, 137 A. 665 (1927); Commonwealth v. Arizini, supra; Schwarzbach v. Dunn, 252 Pa.Super. 454, 381 A.2d 1295 (1977); Commonwealth v. Reeves, 237 Pa.Super. 443, 352 A.2d 167 (1975); Commonwealth v. Cave, supra; Commonwealth v. Stosny, 152 Pa.Super. 236, 31 A.2d 582 (1943).

Similarly, the blood/alcohol result of .09% conveys no more than the fact that the appellant had been drinking. Alcohol/blood results can be a method by which a causal connection between alcoholic consumption and unsafe driving may be made. If the amount of alcohol by weight in the blood is .10% or more, that result is evidence that the person was under the influence of alcohol and will permit a finding to that effect, although such a finding is not mandatory. Results of .10% or more should be considered with all the other evidence in the case, and if there exists a reasonable doubt as to whether the accused was under the influence of intoxicating liquor, the verdict should be not guilty. Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204 (1974); see also 75 Pa.C.S. § 1547(d)(3).

At the other end of the spectrum, if a alcohol/blood result is .05% or less, the person shall not be charged with driving under the influence of alcohol, or if already so charged, the charge becomes void ab initio, 75 Pa.C.S. § 1547(d)(1).

What we are concerned with here is a result in excess of .05% but less than .10%. By statute, such a result: “shall not give rise to any presumption that the person tested was or was not under the influence of alcohol, but this fact may be considered with other competent evidence in determining whether the person was or was not under the influence of alcohol.” 75 Pa.C.S. § 1547(d)(2). A result between .05% and .10%, therefore, indicates at most that the person had been drinking. It does not allow an inference to be made that the person was under the influence.

The only remaining evidence which could possibly establish the causal connection between appellant’s drinking and his unsafe driving lies in his operation of the vehicle. The course of a vehicle and the way it was operated can be decisive in substantiating a causal connection. Commonwealth v. Long, supra. The cases upholding -a driving under the influence of alcohol conviction on the basis of evidence of some drinking coupled only with evidence of the defendant’s manner of operation of the vehicle, have required that the manner of operation be so extreme and uncontrolled that it could be inferred that the defendant’s drinking had impaired his faculties. Commonwealth v. Richardson, 307 Pa.Super. 191, 452 A.2d 1379 (1982); Commonwealth v. Cave, supra; Commonwealth v. Long, supra.

In Long, the driver admitted that she had some beer and whiskey the evening of the accident. The only other evidence to support the driving under the influence charge was the bizarre nature of the accident: Skid marks revealed that the vehicle had been moving rapidly when it turned left across the dry and virtually straight highway at about a 45 degree angle, and continued approximately 36 feet before reaching the berm. The vehicle then went over the 4V2 foot high berm, and, at a 45 degree angle, went up and over a steep 5 foot high embankment. The vehicle proceeded through an orchard for 35 feet to an excavation which was about 36 feet across. The tiremarks of the vehicle ended at the top of the excavation and reappeared on the other side. There the vehicle finally came to a rest with the rear wheels on top of the bank and the front end in the excavation. The Long court held that the factfinder could take into consideration the circumstances of the accident as manifestations of the defendant’s having been under the influence while driving. Furthermore, they held that there was sufficient evidence from which the jury could find beyond a reasonable doubt that the defendant was guilty of driving under the influence of alcohol.

In Cave, the evidence of the defendant’s drinking was confined to his admission that he had consumed “a couple of beers” shortly before the accident. The evidence of defendant’s manner of operation of his vehicle was provided by several eye witnesses. The appellant was observed operating his vehicle at a high rate of speed and crossing over the yellow center line (no passing area) to pass three vehicles at one time. The defendant then approached a curve which he was unable to negotiate, and collided head-on with a vehicle being driven in the opposite direction. The court held that the wild, reckless, and dangerous manner of operation of the vehicle supported an inference by the jury that the defendant’s drinking had affected his ability to drive safely.

Finally, in Richardson, evidence of drinking by the appellant took the form of the investigating officer’s observations of a strong odor of alcohol on the defendant’s breath, and seven empty beer bottles in the vehicle. The necessary causal connection was furnished by the defendant’s erratic manner of operation of the vehicle. The evidence showed that the defendant, with two passengers in his car, had driven onto the entrance of the northbound Scranton expressway, and that he failed to heed the temporarily changed traffic pattern. Due to construction, the right northbound lane of the expressway was closed, and entering traffic was directed to stop (as posted) before proceeding immediately into the left northbound lane. The defendant, however, drove his vehicle to the right of the posted stop sign and onto the shoulder of the highway. He then traveled about 258 feet along the shoulder before colliding with a concrete abutment. The court upheld the driving under the influence conviction.

In the case before us, the defendant’s manner of operation of his vehicle was reckless in that he was driving in “gross excess” of the 45 mile per hour speed limit, and his vehicle crossed the center line of the highway as it started around the curve. Even though the appellant braked the vehicle, it remained out of its lane and consequently collided with the vehicle driving by Sandra Gorcas.

This evidence falls far short of the wild and irregular driving noted in Long, Cave, and Richardson, Driving too fast late at night and consequently crossing the center line around a curve, while not to be excused, does not demonstrate such bizarre operation of a vehicle that it can be inferred that the driver’s faculties were impaired by alcohol. It is unfortunate, but not uncommon, that people in full control of their faculties operate their vehicles at excessive speeds and, if called upon to negotiate a curve when speeding, would be unable to keep the vehicle from crossing the center line. Appellant’s operation of his vehicle was undeniably reckless, and appellant does not contest that conviction. However, the circumstances of appellant’s reckless operation of his vehicle were not so extreme that we can infer that his faculties were impaired by alcohol. The appellant’s manner of operation of his vehicle, therefore, does not supply the necessary causal connection between his drinking and being under the influence while driving.

Accordingly, we hold that the evidence was insufficient to establish beyond a reasonable doubt that the appellant was driving under the influence of alcohol or a controlled substance. The judgment of sentence on this conviction is reversed.

Judgment of sentence reversed.

      . 75 Pa.C.S. § 3731.

      . These summary convictions were under the following statutes: driving on the right side of a roadway, 75 Pa.C.S. § 3301; reckless driving, 75 Pa.C.S. § 3714; and driving vehicle at a safe speed, 75 Pa.C.S. § 3361.

      . The officer felt that he should not question the appellant extensively because of his condition.

      . The lab technician was busy with work involving Sandra Gorcas, who was seriously injured, and could not attend to the alcohol/blood test until this time.

      . We note that no attempt was made by the Commonwealth to relate the appellant’s alcohol/blood content of .09% at 3:15 A.M., back to the time of the accident at 12:44 A.M. Thus, no expert testified that the appellant’s alcohol/blood content would have been .10% or more at the time of the accident. Even if such evidence had been offered, its value would have been nominal. Attempts to relate back alcohol/blood levels to a time prior to the admission of the test are regarded with skepticism. Schwarzbach v. Dunn, 252 Pa.Super. 454, 381 A.2d 1295 (1977); see also Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    485 A.2d 477
    John E. STEINHAUER and Carolyn J. Steinhauer, H/W, v. John W. WILSON, t/a Wilson Associates, Appellant. John W. WILSON, Appellant, v. John E. STEINHAUER and Carolyn J. Steinhauer, H/W.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1984.
    Filed Dec. 5, 1984.

      John D. Snyder, III, West Chester, for appellant.
    Paul I. Guest, Jr., King of Prussia, for appellees.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   OLSZEWSKI, Judge:

This appeal follows verdicts for appellees in a consolidated case before the Honorable Dominic T. Marrone, President Judge of the Court of Common Pleas of Chester County.

At the center of the controversy sits a house built by appellant and bought by appellees. It appears from the evidence that cracks developed in the foundation of the house shortly after appellees took possession. As a result of the cracks, water entered the basement and damaged it. Appellant, though notified of the problem, allegedly failed to take any corrective action. Appellee John E. Steinhauer retaliated with a sign “These Houses Poorly Built” on the corner of his garage facing the road. At appellant’s request, appellees removed the sign — before it had been in place for one hour. Several weeks later, appellee erected another sign “This House Defective”.

Appellees sued in assumpsit to recover damages for breaches of express and implied warranties. No. 449 May Term, 1979. In a separate action, appellant alleged that the signs displayed by the appellees constituted libel. No. 237 July Term, 1979. The cases were consolidated for trial. A jury found for appellees on the contract action in the sum of Twenty-one Thousand Dollars ($21,000.00). and against appellant on the libel action. Appellant filed post-verdict motions for judgment N.O.Y. and for a new trial, as well as a motion for remittitur in No. 449 May Term, 1979.

Those motions denied, this appeal follows.

Appellant raises three points of error. The first contends that the trial court erred in refusing to strike the testimony of appellees’ expert witness on the issue of damages. The witness, Joseph Jerome, testified that he was a retired construction superintendent. He described his duties as a superintendent and explained that, since his retirement, he was engaged in estimating costs of construction and coordinating work among contractors in the industry. Jerome described his method of estimating the costs of constructed work; he testified further that he had acquainted himself with what work needed to be done, then consulted with various contractors to determine the prices they would charge for the work. The trial court found Jerome qualified as an expert in the field.

Appellant objected to the Jerome testimony as hearsay. The trial court overruled that objection. As Judge Marrone explained, “the witness testified that the. estimates he gave were his own although they may have been reached in part by his considering the figures provided him by the various contractors with whom he had consulted.” Lower court opinion, No. 449 May Term 1979, at 9 (emphasis added). We agree with Judge Marrone. The expert based his opinion on facts made known to him before trial. That those facts were in part hearsay does not invalidate the expert’s opinion. See Fed.R.Evid. 703 (“If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or dated need not be admissible in evidence.”) The lower court properly admitted Jerome’s testimony. Appellant’s first claim of error is dismissed.

Appellant argues that the jury verdict in No. 449 May Term, 1979 was unsupported by and inconsistent with the evidence presented as to the amount of appellees’ damages. The jury returned a verdict in an amount of Twenty-one Thousand Dollars ($21,000.00). Appellees’ expert, Mr. Jerome, had testified that the cost of performing the necessary repairs would run between Eighteen Thousand Dollars ($18,000.00) and Twenty Thousand Dollars ($20,000.00), without allowance for overhead or profit. The thousand dollar ($1,000.00) excess apparently represents the jury’s estimate of the repairer’s profits.

In their brief, appellees contend “it is a reasonable inference ... that the jury included an additional $1,000 for the obviously additional costs to be associated with the corrective work necessary.” Appellees’ Brief at 15. We reject that argument. Appellees nowhere presented evidence tending to establish the amount of profit or overhead. “The law requires not merely conjecture, but rather sufficient data from which ... damages can be assessed with reasonable certainty.” Gordon v. Trovato, 234 Pa.Super. 279, 286, 338 A.2d 653, 657 (1975), citing Macan v. Scandinavian Belting Company, 264 Pa. 384, 107 A. 750 (1919). On the evidence presented, the jury could not have found in favor of appellees in amount in excess of $20,000.00. “[W]here the only error disclosed by the record is in sustaining a verdict for a larger amount than plaintiff by his own showing was entitled to recover, an appellate court may correct the error without reversing the judgment.” Standard Pennsylvania Practice 2d § 92:81 and cases cited therein; see 42 Pa.C.S. § 706 (appellate court may modify any order brought before it for review). Accordingly; we modify the lower court’s order to reflect remittitur of the verdict by One Thousand Dollars ($1,000.00).

Appellant contends that the trial court erred in removing from jury consideration the first defamatory, sign in case No. 237 July Term 1979. The sign “These Houses Poorly Built” had remained in place on appellees’ property for a period of less than one hour. Appellant had the burden of proving actual communication to someone other than himself, the person defamed. The lower court, finding no publication, concluded that appellant failed to make out his case-in-chief, “A close review of the record indicates that only one person testified to seeing the first sign, and that was John W. Wilson, the plaintiff [appellant].” Lower court opinion, No. 237 July Term, 1979, at 4. Appellant argues that publication can be inferred from display of the sign for a period of approximately one hour in a public street. The lower court reasoned that actual communication, more than a presumption of communication, was required. “[I]t is the duty of the trial judge to determine, prior to sending the case to the .jury, whether or not the plaintiff has met his burden.” Morena v. South Hills Health System, 501 Pa. 634, 639, 462 A.2d 680, 683 (1983), citing Thomas v. Ribble, 404 Pa. 296, 172 A.2d 280 (1961). Submission of the issue to the jury would have invited speculation as to whether or not anyone not a party to the action had viewed the sign. We find no error in the judge’s decision.

Judgment at No. 449 May Term, 1979 modified to reflect remittitur of One Thousand Dollars ($1,000.00). Judgment as modified affirmed. Judgment at No. 237 July Term, 1979 affirmed. Jurisdiction relinquished.

      . We note that appellees, at argument, agreed to the reduction in verdict.


text:
    485 A.2d 480
    CONTINENTAL BANK v. Robert F. RAPP and Sybil Rapp, a/k/a Sybil Sylvania-Rapp, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1984.
    Filed Dec. 5, 1984.

      William J.C. O’Donnell, Philadelphia, for appellants.
    Robert Cherwony, Philadelphia, for appellees.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   OLSZEWSKI, Judge:

In this case, a companion to Continental Bank v. Rapp, No. 1270 Philadelphia 1983, Robert and Sybil Rapp contest the lower court’s refusal to strike or to open a default judgment taken in a mortgage foreclosure action. Appellants argue that the court below should have granted their motion to strike because the judgment was defective on its face. They maintain the petition to open should have been gránted because they had no reason to know of the pending action, and have a meritorious defense.

The facts are these: The Rapps borrowed $200,000 from Continental Bank in 1980, and in return granted a mortgage on their property at 2023-2025 Locust Street in Philadelphia. On February 25, 1982, when the Rapps were three months in arrears, the bank filed a complaint in mortgage foreclosure. Service of the foreclosure complaint on Robert and Sybil Rapp individually was attempted by the sheriff on March 22, 1982. The returns are marked “no answer.” Reproduced record at 42a, 43a.

Counsel for Continental then filed an affidavit pursuant to Local Rule 141, stating that the whereabouts of the defendants was unknown, and requested permission for alternative service. The court granted permission to serve by ordinary mail, certified mail, and by posting. The sheriff mailed certified letters containing the complaint to Robert and Sybil Rapp individually on May 27, 1982, and posted the premises on June 16, 1982. Robert Rapp’s signature appears on the return receipts, for both certified letters.

Receiving no answer, counsel for the bank filed for default judgment on July 7, 1982. On August 3, counsel filed for a writ of execution against the property. On August 18, the sheriff’s office received a return receipt, signed by “Susan Morrison,” for the writ of execution sent to each of the Rapps, arid on August 20, counsel for the Rapps moved the court for a stay of execution pending disposition of the motion to strike and petition to open judgment which counsel had filed the same day. The stay was granted, but on April 13, 1983, the court denied the motion and dismissed the petition. It stated that the judgment was not defective for ineffective service, and since service had been effected, there was no excuse for defendants’ failure to appear. This appeal followed.

Appellants argued to the court below that service had not been made on them, and so the judgment was defective for the court’s lack of personal jurisdiction over them. They contended the plaintiff had failed to certify to the prothonotary on the date of filing its praecipe that defendants had been notified of plaintiff’s intention to file. Additionally, they argued that they had a meritorious defense to the foreclosure because the bank had breached its obligation to make progress payments for renovations to the building.

After studying the record, statutes and cases, we conclude that the lower court correctly denied the motion to strike and dismissed the petition to open judgment. We therefore affirm the order of the court below.

The Motion to Strike

The test for whether a default judgment should be stricken asks whether the judgment is facially valid. Silverman v. Polis, 230 Pa.Super. 366, 326 A.2d 452 (1974). It is proper for the court to strike when the judgment has a fatal defect on its face. Gee v. Caffarella, 300 Pa.Super. 480, 446 A.2d 956 (1982).

Appellants make a number of imaginative arguments regarding defects on the face of the record. The standard for “defects” asks whether the procedures mandated by law for the taking of default judgments have been followed. See Gee v. Caffarella, supra.

Here, appellants argue that the certified mail service on Robert Rapp was improper because personal service is mandated absent certain circumstances, and those circumstances did not exist. Assuming arguendo that certified mail service was proper, they aver that service was never made on Sybil Rapp because she never signed for the certified letter containing the complaint.

Appellants’ argument goes to the power of the court to pass judgment on them, rather than procedural defects. If service was improper, the court did not have jurisdiction over the persons of the defendants, and its judgment should have been stricken as void. Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979).

With regard to personal jurisdiction: personal service by the sheriff is preferred in Pennsylvania in mortgage foreclosures. See, e.g., Pa.R.C.P. No. 1145, 42 Pa.C.S. (complaint shall be served by sheriff upon defendants). The rule permits mail service, however, if the plaintiff files an affidavit stating that the defendant’s whereabouts are unknown. Pa.R.C.P. No. 1145(c). This was done, and the alternative service was ordered properly. Reproduced record at 16a.

Appellants argue that Sybil Rapp was never served by certified mail, noting in the court below that her signature never appears on a certified mail receipt. This is true, but her husband’s signature appears on her letter’s receipt. We hold that service by certified mail on one spouse and co-defendant will be deemed to have been made when the other spouse and co-defendant accepts service at their mutual home. It would be absurd to permit husband-wife defendants to evade judgment simply by alleging that one partner never told the other of service by certified mail received on her behalf. Service was made on Sybil Rapp.

Since there was proper service on both defendants in the action, the court had jurisdiction and the judgment cannot be stricken for that reason. We turn now to other procedural arguments made by appellants.

Appellants complain that the judgment was defective on its face because appellee failed to attach a certification of notice to the praecipe for judgment by default. Under Pa.R.C.P. No. 237.1, 42 Pa.C.S., such certification is required before judgment by default may be entered.

The record shows no certification as required by the rule. It does, however, include affidavits as to service of the complaints on Robert and Sybil Rapp. Such affidavits were required under an old rule of civil procedure, former Pa.R.C.P. No. 2082.

Appellee notes that Rule 237.1 does not apply, however, when the action is a mortgage foreclosure governed by Act 6 of 1974, 41 P.S. § 101 et seq. Appellee contends that the Act applies here. We disagree. The Act applies, by its terms, to mortgages for $50,000 or less. See Rueter, Mortgage Foreclosure in Pennsylvania, 85 Dick.L.Rev. 275, 282 (1981). This mortgage was for $200,000, and therefore the special law governing notice of foreclosure for owners of relatively modest homes does not apply.

The bank, apparently unaware that Act 6 did not apply, sent to the Rapps a standard three-page letter on January 15, 1982, explaining in detail the consequences of a continued default in mortgage payments. The Rapps have never denied receiving this letter. They rely instead on the variance between that letter and the notice required by Pa.R.C.P. No. 237.1.

Had counsel for the bank sent notice to the Rapps that a default judgment would be taken unless defendants acted within ten days, the Rapps’ contention would be meritless. It is apparent, however, that counsel followed the old rule for notice and failed to send the letter required by Pa.R.C.P. 237.1.

The reason for the adoption of Pa.R.C.P. No. 237.1 was to avoid the taking of “snap judgments” immediately after the period for filing an answer to a complaint had run. See Pa.R.C.P. 237.1 Explanatory Note—1979. This Court strongly disapproved the entry of default judgments on the twenty-first day after the complaint had been filed 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 (1979). The taking of such default judgments is unjust to the defendant. Brooks v. Surman Dental Lab, Inc., 262 Pa.Super. at 374, 396 A.2d at 802.

Here, appellee gave notice 30 days before taking action, as required by Act 6. Act 6 was intended to afford homeowners who were in dire economic straits a measure of protection from over-enthusiastic mortgagees. See Mortgage Foreclosure in Pennsylvania, supra, at 287. Its notice procedures are more stringent than the notice requirements of Pa.R.C.P. 237.1. We hold that notice given under Act 6 is sufficient to satisfy the notice requirements of Pa.R.C.P. No. 237.1 in the circumstances of this case. See Pa.R.C.P. No. 126, 42 Pa.C.S. (“The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantive rights of the parties.”)

The Petition to Open Judgment

Appellants argue that the judgment should have been opened because they have a meritorious defense — that the bank breached its agreement to lend them enough money to renovate their home and attract student lessees. Ordinarily, three factors must be present for a court to open a default judgment: (1) the petition to open must be timely filed, (2) the failure to file a timely answer must be excused, and (3) the party seeking to open must have a meritorious defense. Maiorana v. Farmers & Merchants Bank, 319 Pa.Super. 338, 466 A.2d 188 (1983); Sines v. Packer, 316 Pa.Super. 500, 463 A.2d 475 (1983).

By our reasoning in the first part of this opinion, Robert and Sybil Rapp had no excuse for their failure to respond to the mortgage complaint. They had notice of the pending action, and yet failed to file an appearance or do anything to answer the complaint. Appellants’ request that we overturn the trial court’s refusal to open must be denied.

The order of the lower court denying the motion to opening judgment and dismissing the petition to strike is affirmed.

      . Local Rule 141 is the local version of Pa.R.C.P. No. 2079(d), 42 Pa.C.S., and permits service under the same circumstances as Rule No. 2079:
      Rule 141. Alternative Service.
      A. Right of Service.
      Pursuant to Pa.R.C.P. 2079(d) plaintiff has the right of service in such manner as the Court by special Order shall direct in cases where a resident defendant has, by concealment of his whereabouts or other means, obstructed or prevented service.
      B. Procedure.
      When a return of "Not Found" or its equivalent has been made after more than one attempt to make service by the sheriff or where the first return of “Not Found” indicates that further attempts at personal service would not be successful, plaintiffs counsel may request an order permitting service of the Complaint by regular mail to defendant’s last known address by filing an affidavit in accord with either 1. and 2. or 3. below, accompanied by an attached copy of the current docket entries.
      1. An averment of a good faith investigation made to ascertain the present residence of the defendant which must consist of at least three of the following:
      a. An examination of telephone directories.
      b. Inquiries made of neighbors or relatives.
      c. Inquiries made of employers or former employers.
      d. Inquiries made of credit bureaus.
      e. An examination of public records or any other records required to be kept by law, i.e., information from Post Office Department pursuant to Freedom of Information Act, Bureau of Motor Vehicles, etc.
      f. Any other specifically averred investigation which is reasonably calculated to provide information on defendant’s whereabouts.

        2. In addition to the requirements set forth in paragraph 1. above, affidavits shall include the specific inquiries made and the specific responses received from the plaintiffs investigation, including the dates thereof. If inquiries and/or responses were made by mail, a copy of all correspondence shall be submitted with the required affidavit.
      3. An averment that to the best of plaintiff’s counsel’s personal knowledge, information and belief the address given is defendant’s residence and the manner in which said address was obtained.
      General Court Regulation 81-6, effective July 14, 1981.

      . The cited rules apply specifically to mortgage foreclosures. See Pa.R.C.P. No. 1141, 42 Pa.C.S. They do not displace all other procedural rules, however, by the terms of Pa.R.C.P. No. 1141(b).
      Under Local Rule 141, the Philadelphia County Court of Common Pleas may order service when the whereabouts of the defendant are unknown and the plaintiff has acted diligently to locate him — the same requirements as exist under Pa.R.C.P. No. 2079. For mail service to be properly ordered, the plaintiff must make a good faith effort to determine the defendant’s physical whereabouts, by (1) inquiries of postal authorities, (2) inquiries of neighbors, and (3) examination of local telephone directories. Note to Pa.R.C.P. No. 2079.
      Here, the record contains an affidavit by plaintiffs attorney that such steps had been taken. The service by certified mail was proper under the circumstances. See Olivetti Corp. of America v. Silia Property, Inc., 502 Pa. 538, 467 A.2d 321 (1983) (holding that lack of information in request to sheriff for substitute service on good faith effort to find defendant did not invalidate service.)
      We also note that appellants complain that service by ordinary mail was not made, and that this omission justifies an order striking the judgment. Appellants’brief at 11. This contention is meritless. The underlying purpose of service rules is to ensure that the defendant knows of the pending action. See Branch v. Foort, 397 Pa. 99, 152 A.2d 703 (1959). We think that the Rapps knew of the pending action by means of the certified letters for which Robert Rapp signed.

      . The Rule states:
      Rule 237.1. Notice of Praecipe for Entry of Default Judgment
      (a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice of agreement shall be attached to the praecipe.
      (b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions of Act No. 6 of 1974, P.L. 13, 41 P.S. § 101 et seq.

      . Affidavits such as those filed were required procedure under the old rules, former Pa.R.C.P. No. 2082, 42 Pa.C.S., rescinded December 14, 1979, effective February 1, 1980. The new rule, Pa.R.C.P. No. 237.1, requires notice of intent to take a default judgment be sent to defendants ten days prior to filing of the praecipe for entry of judgment.

      . The letter is headed "This is a notice of default and of Continental Bank’s intent to foreclose on your mortgage pursuant to Pennsylvania Act No. 6 of 1974.” The letter explains the bank's rights of acceleration, foreclosure, possession, eviction, and the Rapps’ personal liability for the balance of the mortgage. Reproduced, record at 38a-40a.


author: CERCONE, Judge: MONTEMURO, Judge,

text:
    485 A.2d 485
    COMMONWEALTH of Pennsylvania v. Clarence CASTERLIN, Appellant.
    Superior Court of Pennsylvania.
    Argued July 24, 1984.
    Filed Dec. 5, 1984.

      Joseph F. Saporito, Pittston, for appellant.
    James J. Walker, Assistant District Attorney, Scranton, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

Appellant Clarence Casterlin appealed his summary conviction and fine, of $100 plus costs by a district magistrate for a violation of 75 Pa.C.S.A. § 4903, Securing loads in vehicles. After a trial de novo, this conviction was affirmed. We reverse.

The pertinent section of the Vehicle Code is:

§ 4903. Securing loads in vehicles
(a) General rule. — No vehicle shall be driven or moved on any highway unless the vehicle is so constructed or loaded as to prevent any of its load from dropping, shifting, leaking or otherwise escaping.
(b) Fastening load. — Every load on a vehicle shall be fastened so as to prevent the load or covering from becoming loose, detached or in any manner a hazard to other users of the highway.

Appellant’s contention is that the trial court interpreted the requirement of subsection (b) too broadly. He urges that it provides only that a load shall be fastened so as to prevent it from becoming a hazard to other users of the highway. To hold that the statute requires every load to be secured by a tarp or other covering would be a distortion of the meaning of the statute, claims appellant. We agree.

It was established by the evidence at the hearing that appellant worked for Airport Sand and Gravel. On the day he was stopped by the police officer he was hauling approximately twelve tons of wet sand in a fourteen wheel dump truck which had a weight capacity of twenty-two and one-half tons. He was taking it to a swimming pool construction area where it was to be placed under the liner of the pool. It was uncontradicted that nothing was observed falling, spilling, or blowing off the truck and that the box of the truck was enclosed except for an open top. The box was approximately half filled. The officer stated that while the material in the truck looked like chunks of concrete, he could not be sure and did not know whether it was sand, gravel or dirt.

The issue for our determination is whether appellant, by his hauling one-half a load of wet sand in a dump truck without a covering, was in violation of that section of the Vehicle Code, § 4903, which mandates that loads be fastened so as to prevent their coming loose resulting in a hazard to other users of the highway. In construing this section of the Vehicle Code, we are cognizant of its purpose to regulate the use of the highways, roads, streets and bridges for the protection of life or property thereon. Maurer v. Boardman, 336 Pa. 17, 7 A.2d 466 (1939) aff. 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969 (1939).

With a consideration of the plain meaning of the statute, 1 Pa.C.S.A. § 1921(b), it is not necessary, in the opinion of this Court, for every load being carried in a truck to be covered, with no regard for the existence or non-existence of a hazardous condition if it were not covered. Thus, before the operator of a vehicle may be cited for a violation of § 4903(b), it must be shown that the load he is carrying is a hazard to other users of the highway because it is not fastened. Absent this showing in the instant case, it was error to find appellant guilty of violating this section.

Judgment reversed and appellant discharged.

MONTEMURO, J., filed a dissenting opinion.

MONTEMURO, Judge,

dissenting:

Because I cannot agree with the majority’s interpretation of 75 Pa.C.S. § 4903, I must dissent.

Section 4903(b) states that “[e]very load on a vehicle shall be fastened” in order to prevent a hazard to other users of the highway. The “plain meaning” of the statute, as I read it, is that every vehicle carrying a load must be “fastened” in some way. Every vehicle means just that, not only vehicles carrying loads which, if not fastened, would be hazardous. The statute is clearly preventative and does not allow drivers of vehicles the option of not fastening loads which they think are not hazardous.

In addition, even under the majority’s reading of the statute, the Commonwealth here has made the “showing” that the unfastened load was hazardous to other users of the highway. There was testimony by the police officer that if the truck hit a bump on the highway, the contents could fall out, and that the load could have been a hazard. It was undisputed, of course, that the load was not fastened. Hence there clearly was sufficient evidence to support the lower court’s judgment of sentence..

For the above reasons, I would affirm.


author: HESTER, Judge:

text:
    485 A.2d 487
    COMMONWEALTH of Pennsylvania v. George HUDSON, a/k/a George Kirby, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1984.
    Filed Dec. 5, 1984.

      Robert M. Fellheimer, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   HESTER, Judge:

Appellant was convicted December 8, 1978 of simple assault, burglary, robbery and recklessly endangering another person. Following the denial of post-verdict motions, appellant was sentenced to a term of imprisonment of from 3 to 10 years. The court agreed to reconsider the sentence and on March 7, 1979, the sentence was reduced to llVfe to 23 months to be followed by 10 years probation, a substantial reduction of the original sentence of from 3 to 10 years. Understandably, appellant did not appeal the reduced sentence.

He was paroled June 15, 1979, 100 days following sentence, receiving credit for time served. He was then arrested on January 9, 1980, for robbery, theft, simple assault, and other charges. The charges were dismissed when the complainant failed to appear. On November 20, 1980 he was arrested and charged with robbing a cab driver at gun point. He was convicted of this charge May 15, 1981. On November 18, 1981, a hearing was -held wherein appellant was found to be in violation of his probation and was sentenced to from 10 to 20 years on the robbery count, and 10 to 20 years on the burglary count, to run concurrently. As Judge Caesar pointed out during the violation of probation hearing:

Mr. Kirby, at 21 years of age, has a record of 22 juvenile arrests with 12 convictions. His first arrest was at the age of nine. These included robberies and committments (sic) to institutions on several occasions. As an adult, he had 17 arrests and five convictions. I note, of course, that he’s been an adult only three years and he’s spent the last year in jail.
N.T. pp. 41-42.

Appellant instituted post-conviction relief proceedings April 21, 1980, alleging he was denied the right to appeal his conviction and reduced sentence of IIV2 to 23 months, that trial counsel was ineffective, and that certain witnesses should have been permitted to testify.

At the time of his sentence, March 7, 1979, appellant had experienced considerable exposure to the criminal justice system including the right of appeal. It should be noted that appellant waited approximately 16 months from the time of his conviction in this case until he filed a petition for post-conviction relief. A lapse of-time in filing a PCHA petition should be considered in assessing its merit. Com monwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981). “Appellant’s prolonged silence here becomes deafening in light of the rights which the appellant claims he was denied.” Commonwealth v. Courts, 315 Pa.Super. 124, 461 A.2d 828 (1983).

Moreover, this Court has recently stated that “[ineffective assistance of counsel has become the last ditch ploy of defendants in criminal cases and should not be encouraged.” Commonwealth v. Alberts, 285 Pa.Super. 10, 12, 426 A.2d 678, 679 (1981). This Court should not permit a defendant to couch his claims for post-conviction relief in terms of ineffective assistance of counsel in situations where it is clear that counsel provided reasonable and conscientious legal services.

In view of appellant’s vast experience in the criminal justice system, 17 arrests and 5 convictions as an adult, 22 arrests, 12 convictions as a juvenile, and in view of the facts and circumstances appearing of record, it is clear that appellant was well aware of his appellate rights and did not instruct trial counsel to appeal his favorably reduced sentence.

Under § 1180-3 of the Post Conviction Hearing Act, relief is granted upon proof of one or more statutory grounds. For example, post conviction relief will be granted where counsel was incompetent, 19 P.S. § 1180-3(e)(6), or where the petitioner’s constitutional right to appeal the judgment of sentence was abridged. 19 P.S. § 1180-3(c)(12).

The petitioner for post conviction relief bears the burden of proving ineffectiveness of counsel; at no time does the burden shift to the Commonwealth to prove counsel competent. Commonwealth v. Jones, 324 Pa.Super. 359, 471 A.2d 879 (1984); Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983); Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). Appellant does not argue that his constitutional appellate rights have been abridged; instead, he argues that counsel was ineffective for failing to appeal from the judgment of sentence. Presented in this fashion, appellant must prove that he requested an appeal and that counsel disregarded the request.

During the post conviction hearing, appellant responded accordingly under cross-examination concerning counsel’s failure to perfect an appeal from the judgment of sentence entered following resentencing:

Q. And you had a reconsideration [of sentence], isn’t that correct?
A. Yes, I did.
Q. And you received eleven and a half to twenty three months?
A. Ten years probation.
Q. Did you ask your attorney to file an appeal regarding that sentence?
A. I never asked for reconsideration. I asked for appeal.
Q. But you never asked him to appeal that sentence when you were brought back and resentenced, is that correct?
A. Repeat that again?
Q. You said when you were originally sentenced to three to ten years you asked your attorney to file an appeal. He sent you a letter saying your sentence had been vacated and you would be resentenced. Is that correct?
A. Yes.
Q. And you were resentenced to eleven and a half to twenty-three months?
A. Yes.
Q. Any my statement is you never asked your attorney to appeal that sentence?
A. Yes.

(N.T., September 22, 1981, pp. 23-24). We recognize, of course, that appellant’s final reply in the above passage may be interpreted as either an affirmation of the statement that he never asked counsel to appeal or a confirmation that he did request an appeal. This ambiguity serves the Commonwealth and demonstrates that appellant did not prove that he directed counsel to appeal.

Trial counsel’s testimony is similarly unclear. He had no recollection whether appellant instructed him to appeal. He merely assumed that he did not, since his file contained no memorandum directed to the Appeals Division of the Defender’s Association.

Moreover, assuming arguendo that counsel refused to prosecute an appeal, appellant must prove that issues which could be raised on appeal had arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Counsel’s refusal to file an appeal is not per se ineffectiveness.

With the exception of allegations that counsel was ineffective for not calling a defense witness and appellant to testify, appellant proposes no arguments which he would have raised on appeal. Inasmuch as these allegations are meritless, a refusal to file an appeal would not constitute ineffectiveness.

Appellant must prove that he and the defense witness could offer testimony helpful to the defense. Commonwealth v. Bailey, supra; Commonwealth v. Helvy, 278 Pa.Super. 458, 420 A.2d 631 (1980). A man called “Lucky” was allegedly playing “craps” with appellant and another man on a street nearby the Geneva Hotel where the crimes occurred. According to appellant, he and his companions disbanded when police approached. Appellant ran to Room 302 in the Hotel due to his belief that it was “Lucky’s” room. Instead, he found the room to be occupied by the victim. Appellant contends that, if called to testify, “Lucky” could have confirmed the “crap” game and its sudden break-up at 2:15 a.m. Inasmuch as the crimes occurred at 2:30 a.m., appellant concludes that it was impossible for him to flee the “crap” game, burglarize Room 302, and then rob and assault Mr. Slade within a 15 minute period. “Lucky’s” testimony would have supported this contention.

This does not prove “Lucky” helpful to the defense. Appellant admits to being inside Room 302 and confronting the victim; therefore, the occurrence of a “crap” game nearby is insignificant. Furthermore, the alleged “crap” game was in such proximity to the hotel that it could easily have terminated at 2:15 a.m., allowing sufficient time to run to Room 302 and complete the crimes by 2:30 a.m.

Counsel cited appellant’s unsatisfactory responses to simulated cross-examination as grounds for his decision not to call him to testify. According to counsel, appellant’s low credibility was harmful to the defense. This strategy provided a reasonable basis for his decision not to call appellant. Moreover, appellant fails to demonstrate how his testimony would be helpful. He merely asserts counsel’s failure to call him as a witness as evidence of ineffectiveness.

Due to the fact that counsel was competent in not calling “Lucky” and appellant to testify, no claims of arguable merit could be raised on appeal. Therefore, assuming appellant made known his desire to appeal to counsel, there was no arguable merit to filing an appeal from the judgment of sentence.

Order affirmed.


text:
    485 A.2d 490
    COMMONWEALTH of Pennsylvania v. Tony WEST, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1984.
    Filed Dec. 5, 1984.

      James S. Bruno, Norristown, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   HESTER, Judge:

At 2:00 a.m. on October 22, 1981, appellant attacked and was in the process of robbing a 93-year old shopkeeper in the City of Philadelphia. Fortunately the police arrived during the struggle. They had been summoned by a disinterested individual who witnessed the attack while standing outside the victim’s place of business. Appellant was charged with burglary, criminal trespass, simple and aggravated assault and recklessly endangering another person. The matter was called for trial March 24, 1982. He entered a plea of guilty to robbery with the understanding that the sentence would not exceed 7 to 20 years.

Appellant had an extensive prior criminal record. On July 28, 1977 he pled guilty to simple assault and robbery. He was sentenced to 23 months and 5 years probation. On July 22, 1980 he was convicted of robbery and sentenced to 11 ¥2 months to 23 months and 5 years consecutive probation. On August 6, 1981 he was convicted of robbery, criminal conspiracy, and recklessly endangering another person. He was sentenced to 11 to 23 months and 3 years probation. He was serving three probationary sentences when he engaged in the October 22, 1981 robbery.

The within appeal is from appellant’s fourth robbery conviction. The plea colloquy was conducted on March 22, 1981; it was thorough, detailed and complete. It covered 17 pages of testimony. Appellant was represented by private counsel. During plea negotiations, appellant was advised that the court would impose a sentence of from 7 to 20 years, but in the event the court, following an examination of the pre-sentence report, decided to impose a greater sentence, appellant would be permitted to withdraw his plea. Appellant agreed to this, with the understanding that he would not be sentenced to anymore than 7 to 20 years. In addition to the requirements of a guilty plea colloquy, appellant was advised that the plea would be a violation of one or more probations or parole imposed by Judges Wallace, Goodheart and Richette. The record disclosed the following:

THE COURT: I believe that the plea will be a violation of one or more probations; is that correct?
MR. BARBIERE: Probations or paroles, Your Honor.
BY THE COURT:
Question: I understand you are on either probation or parole, either by sentence imposed by Judge Goodheart, by Judge Wallace and perhaps by Judge Richette. Do you understand that this guilty plea will be a violation of any or all of those probations or paroles?
Answer: Yes sir.
Question: Do you understand that?
Answer: Yes sir.
Question: You would probably be required to go back to each one of the judges whose probation you violated; you do understand that?
Answer: Yes, sir.

(N.T. pp. 9 and 10). An examination of the colloquy leaves no doubt that appellant’s plea was voluntary, knowing, calculated and intelligent. The terms of the plea were clear; there was no ambiguity. Appellant was well aware he was agreeing to a sentence from 7 to 20 years. In the event the court decided to impose a greater sentence, he would have the option of withdrawing his plea.

An examination of the notes of testimony at the sentencing hearing on August 11, 1982 reveals that appellant did not withdraw his plea prior to the imposition of the sentence.

Appellant’s counsel stated prior to sentencing:

If I may, Mr. West, I understand he’s doing back time from probation violations. He has received a total of seven and a half to fifteen years, and he has indicated to me today that if he receives anymore time from Your Honor, he would like to withdraw his plea.

(N.T. p. 2). He was then reminded by the court that during the plea colloquy he had been advised of the possible violation of probation or parole.

Appellant then issued an ultimatum to the court, in effect, that unless the 7 to 20 year sentence was to be concurrent to the sentences of to 15 imposed for parole violations, he would then withdraw his plea.

THE COURT: Is there anything you want to say to me?
You’re telling me that if I sentence you, you’re going to withdraw your plea? Is that what you’re telling me?
THE DEFENDANT: I’m saying I don’t think that time that I should get should be run consecutive from the time that I got. That would be total of 14 years or more that I have to do.
THE COURT: No, I’m going to sentence you for this and if you get additional time because of violations, you will probably have to serve that before you will serve mine.
I’m not going to make anything concurrent. I’m telling you right now I’m not going to make anything concurrent with any sentence that will be given to you because of violations.

(N.T., p. 4). The court then imposed a sentence, in accordance with the agreement, of from 7 to 20 years.

Up to this point, appellant or his counsel made no request, oral or written, to withdraw appellant’s plea. What did transpire was that an ultimatum was issued by appellant, and counsel, to the effect that unless the 7 to 20 year sentence was made to run concurrent with the parole violation sentences, appellant would then attempt to withdraw his plea. The court accepted the ultimatum, imposed the sentence that had been agreed to, and then, for the first time, counsel advised the court that appellant desired to file a motion to withdraw the plea (N.T. p. 6).

A review of the record leads us to conclude that this should be considered as a motion to withdraw a plea subsequent to the imposition of sentence. Sentence was imposed August 11, 1982; the petition to withdraw the plea was filed August 26, 1982.

When considering a petition to withdraw a guilty plea after sentencing, it is well established that “a showing of prejudice on the order of manifest injustice” is required before withdrawal is properly justified. Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). Post-sentencing attempts to withdraw a guilty plea must sustain this more substantial burden because of the recognition that a plea withdrawal can be used as a sentence-testing device. Starr, supra, 450 Pa. at 489, 301 A.2d at 594.

It is axiomatic that a disappointed expectation regarding a sentence does not constitute grounds for withdrawing a guilty plea. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Starr, supra. Upon entry of a guilty plea, all challenges to the plea are waived except challenges to voluntariness and to the jurisdiction of the court. Allegations of ineffectiveness of counsel in connection with a guilty plea will provide a basis of relief only if ineffectiveness caused an involuntary or unknowing plea. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978), cert. den. 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979); Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Fultz, 316 Pa.Super. 260, 462 A.2d 1340 (1983). Once a defendant has entered a plea of guilty, it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him. Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976). The burden of proof in a P.C.H.A. hearing is upon the petitioner. Commonwealth v. McCloud, 312 Pa.Super. 29, 458 A.2d 219 (1983).

As Justice McDermott succinctly stated in Commonwealth v. Anthony, 504 Pa. 551, 558-559, 475 A.2d 1303, 1307 (1984):

A guilty plea is an acknowledgement by a defendant that he participated in the commission of certain acts with a criminal intent. He acknowledges the existence of the facts and the intent. The facts that he acknowledges may or may not be within the powers of the Commonwealth to prove. However, the plea of guilt admits that the facts and intent occurred, and is a confession not only of what the Commonwealth might prove, but also as to what the defendant knows to have happened.
and
A guilty plea is not a ceremony of innocence, it is an occasion where one offers a confession of guilt. If a defendant voluntarily, knowingly, and intelligently wishes to acknowledge facts that in themselves constitute an offense, that acknowledgement is independent of the procedures of proving or refuting them. How they would be proved, what burdens accompany their proof, what privileges exist to avoid their proof, what safeguards exist to determine their accuracy, and under what rules they would be determined, by whom and how, are irrelevant. The defendant is before the court to acknowledge facts that he is instructed constitute a crime. He is not there to gauge the likelihood of their proof, nor to weigh them in the light of the available procedures for their proof. He is there to voluntarily say what he knows occurred, whether the Commonwealth would prove them or not, and that he will accept their legal meaning and their legal consequence. The requirements of Rule 319 do not mandate any specific language. As we held in [Commonwealth v.] Carson, [503 Pa. 369, 469 A.2d 599 (1973)], supra, all that is required is that the defendant understand, have knowledge of the nature of the offense in as plain a fashion as possible, and the court be satisfied that the defendant understands and is willing to act on his understanding.

Appellant has not demonstrated any showing of “manifest injustice”, in fact, he received the exact sentence he bargained for.

Appellant alleges that he was not aware of the possibility that a consecutive sentence would be imposed for probation violations; therefore, his plea was not knowingly or understanding^ entered. The sentencing judge, during the sentencing colloquy, specifically pointed out to appellant that his plea was in violation of the three existing sentences of probation or parole, and further, that appellant would be required to return to each of the judges whose probation appellant had violated (N.T. p. 9 and 10). This was appellant’s fourth conviction for robbery. He was well aware when he entered his plea he would soon thereafter be charged and possibly sentenced for parole violations resulting from his three prior robbery convictions. The totality of the circumstances dictate that appellant, experienced in the subject matter of sentence, was aware of the probability that he would receive substantial sentences for his parole violations. Neither appellant nor his private counsel mentioned the matter of consecutive or concurrent sentences during the extensive, detailed colloquy. This we deem, in view of the totality of the circumstances, to have been voluntary.

Appellant never, and does not now, deny his guilt. He was apprehended in the act of robbing his victim. The plea arraignment, in view of his record, was favorable, extending to appellant the opportunity to withdraw the plea in the event the judge decided to impose a sentence greater than from 7 to 20 years. Appellant received the exact sentence for which he bargained. That sentence should not be disturbed.

Judgment of sentence affirmed.


author: TAMILIA, Judge:

text:
    485 A.2d 494
    A. Harlene MAYHUE v. Fred E. MAYHUE, Appellant. A. Harlene MAYHUE v. Fred E. MAYHUE. Appeal of AMAYCO ENVIRONMENTAL SERVICES INC., Intervenor in this case. A. Harlene MAYHUE v. Fred E. MAYHUE, Appellant. A. Harlene MAYHUE v. Fred E. MAYHUE. Appeal of AMAYCO ENVIRONMENTAL SERVICES INC.
    Superior Court of Pennsylvania.
    Argued June 19, 1984.
    Filed Dec. 7, 1984.

      Joseph M. Wymard, Pittsburgh, for appellant (at Nos. 1373 & 207) and appellee (at Nos. 1374 & 353).
    Stanley P. DeGory, Pittsburgh, for appellant (at Nos. 1374 & 353) and for participating party (at No. 1373 & 207).
    Before TAMILIA, JOHNSON and MONTGOMERY, JJ.
   TAMILIA, Judge:

The sole question presented by this appeal is whether the lower court abused its equitable powers in appointing a trustee to manage Amayco Environmental Services, Inc. in order to prevent the fraudulent misappropriation of the marital property of A. Harlene Mayhue by Fred E. May-hue? This question arises as a result of the divorce action filed by Mrs. Mayhue on August 5, 1981, whereby she sought an injunction and appointment of a trustee in receivership in order to preserve such property. The lower court held that it was necessary to appoint a trustee in receivership to preserve the status quo for marital property since the record clearly disclosed that Mr. Mayhue had been appropriating money from a business in which both he and his wife had been involved. We affirm.

The evidence establishes that prior to the separation of the parties, they operated a residential sewer cleaning business under the name of E.L. Mayhue and Son. At or about the time the parties separated, the appellant, Fred E. May-hue, withdrew in excess of $60,000 from the business accounts of E.L. Mayhue and Son and deposited said sum in an account in his own name. Additionally, appellant took checks and other business records from E.L. Mayhue and Son. This action prompted appellee to file the original petition for an injunction under the Divorce Code on August 5, 1981.

Before the parties separated, the appellant also operated a commercial and industrial sewer cleaning business under the name of Amayco Environmental Services, Inc. Appellant contends that this business was owned in partnership by himself and a third party, Howard Stuber. However, the lower court concluded that this partnership was merely a pretext for the following reasons: (1) the fictitious name of the business was registered solely in Mr. Mayhue’s name; (2) Mr. Stuber was not empowered to sign checks for the alleged partnership; (3) no partnership tax return was filed as Mr. Mayhue elected to be taxed on wages from Amayco Environmental Services, Inc.; (4) Amayco operated out of the same building as E.L. Mayhue and Son, which was owned by Mr. and Mrs. Mayhue as tenants by the entirety; (5) Amayco leased vehicles and other equipment of E.L. Mayhue and Son; and (6) the employees of Amayco were covered by the same workman’s compensation and unemployment policies as E.L. Mayhue and Son. Lease payments from Amayco to E.L. Mayhue and Son ceased following the filing of the divorce action and from then on were paid directly to Mr. Mayhue. Subsequently, Mr. May-hue was held in contempt for failing to comply with several orders of the court directing him to turn over the titles to the vehicles leased by Amayco. Shortly following the petition for divorce, Amayco was incorporated by Mr. Mayhue and Mr. Stuber, holding 60 per cent and 40 per cent interests respectively.

In October of 1981, the lower court entered the original order which appointed a trustee over the business. Because Mr. Mayhue has repeatedly dishonored this order, he has been held in contempt of court several times.

On December 6, 1982, the lower court entered an order extending the powers of the trustee to Amayco and included the power to settle the parties’ delinquent tax liability resulting from Mr. Mayhue’s failure to file federal income tax returns for the years 1975 through 1979. Upon consideration of the petition of David L. Gropp, Trustee, the lower court entered an order on January 14, 1983, issuing a Rule upon Fred E. Mayhue to show cause why he should not be held in contempt for his failure to comply in a timely fashion to all matters required of him pursuant to previous court orders. Subsequently, on February 14, 1983, an order was entered by the lower court approving David L. Gropp’s trustee fees in the amount of $3,075.00, payment to be made from the current funds of Amayco. The instant appeals are from the above orders.

The order of the lower court appointing a trustee over Amayco was made pursuant to sections 401(c) and 403(a) of the Pennsylvania Divorce Code, which grants courts equitable powers in the supervision of property in a divorce action and property settlement. The lower court concluded that such action was necessary to prevent Mr. Mayhue from continuing a course of conduct calculated to defeat his wife’s property rights in the business.

Section 403(a) of the Divorce Code provides:

§ 403. Injunction against disposition of property pending suit and decree rendering fraudulent transfers null and void
a. Where it appears to the court that a party is about to remove himself or herself or his or her property from the jurisdiction of the court or is about to dispose of, alienate, or encumber property in order to defeat alimony pendente lite, alimony, child and spousal support, or similar award, an injunction may issue to prevent such removal or disposition and such property may be attached as provided by the Rules of Civil Procedure. The Court may also issue a writ of ne exeat to preclude such removal.

23 P.S. § 403(a).

Section 401(c) of the Divorce Code further provides:

c. In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

23 P.S. § 401(c).

We conclude that section 401(c) “gives the courts below power to issue injunctions to protect the interests of the parties or to effectuate the purposes of the Divorce Code, one of which was to give divorced persons economic justice. 23 P.S. § 102(a)(6).” Lazovitz v. Lazovitz, 307 Pa.Super. 341, 346, 453 A.2d 615, 620 (1982). In the instant case, the lower court’s Order was meant to preserve the status quo until the equitable distribution of the marital property was completed. The Order at issue was justified under section 102(a)(6) of the Divorce Code, as it was in the interests of economic justice, and was authorized by section 401(c). We acknowledge that the appointment of a trustee in receivership is a harsh measure and that such an equitable power should be exercised as a remedy of last resort. See, e.g., Mintzer v. Arthur L. Wright & Co., Inc., 263 F.2d 823 (3rd Cir.1959); Hankin v. Hankin, 279 Pa.Super. 179, 420 A.2d 1090 (1980). Here, however, the receiver has not been appointed to protect the rights of an ordinary creditor but, rather, has been appointed to protect the interests of a spouse in marital property. We cannot conceive of a clearer factual situation justifying injunctive relief and the appointment of a trustee in receivership. The appellant has appropriated marital property and has been held in contempt several times for refusing to comply with court orders. His conduct has demonstrated that his clear purpose is to dispose of or hide such property in which his wife might have a marital interest. Mrs. Mayhue’s need for injunctive relief was clear, immediate and necessary in order to prevent greater injury. See Independent State Store Union v. Pennsylvania Liquor Control Board, 495 Pa. 145, 432 A.2d 1375 (1981); Gillette Co. v. Master, 408 Pa. 202, 182 A.2d 734 (1962).

In Holub v. Holub, 129 P.L.J. 366 (1981) aff'd. mem., 313 Pa.Super. 595, 460 A.2d 846 (1983), the lower court issued an injunction pursuant to section 403(a) of the Divorce Code and Pa.R.C.P. 1920.43 to prevent the husband from disposing of property. The facts of Holub, like the instant case, present a clear instance where the issuance of an injunction was necessary to avoid “irreparable harm”. In Holub, the wife’s right to relief was clear because the husband had already sold several shares of stock in which the wife had a marital interest, and deposited the proceeds in bank accounts outside the court’s jurisdiction. In addition, the husband removed two valuable vodka cups from the marital residence and sold them for far less than their purchase price. In making its determination, the lower court pointed out that the husband’s testimony was so evasive, unbelievable and untruthful that an injunction was necessary to prevent similar behavior in the future. Holub v. Holub, supra, 131 P.L.J. at 372. Relying on Gillette Co. v. Master, supra, the Holub court held that: (1) the rights of the wife were clear; (2) there was an urgent necessity to avoid injury which cannot be compensated for by damage awards; and (3) that greater injury would result by not granting the injunction. Id.

Notwithstanding our decision upholding the order appointing David L. Gropp, Esquire, trustee of Amayco, we must address several additional claims raised by Amayco regarding the scope of the trustee’s powers. Initially, Amayco contends that the trustee’s authorization to liquidate up to sixty per cent of Amayco’s assets in order to discharge both Amayco’s debts and Mr. Mayhue’s delinquent taxes constitutes an unlawful involuntary dissolution of Amayco since the prerequisites required by Pennsylvania’s Business Corporation Law, 15 P.S. § 2107, have not been established. We disagree with Amayco’s contention and hold that a trustee’s power to discharge the business debts of a corporation is well within the legal powers of a receiver who has a duty , to oversee the operation of the corporation subject only to the will of the court. McDougal v. Huntingdon & Broad Top Mountain R.R. & Coal Co., 294 Pa. 108, 143 A. 574 (1928). The necessity of this function is of an even greater magnitude in the instant case as the purpose of appointing the trustee was to preserve the status quo of marital property pending a divorce action.

As to the authority of the trustee to use Amayco’s assets to pay Mr. Mayhue’s delinquent taxes, we note that the assets of a corporation may be reached to satisfy a tax liability when it is established that the corporation is the alter ego of the delinquent taxpayer. G.M. Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977). In the present case, the lower court found that “even though there was a corporation in existence, Mr. Mayhue treated the assets of the corporation as his own and did not operate as a corporation.” (Slip Op. at 9). We conclude, therefore, that Amayco, being the alter ego of Mr. Mayhue, is not justified in attempting to use its superficial corporate status as a shield against tax liability.

Additionally, we reject Amayco’s claim that the trustee’s authority to use Amayco’s assets to determine what setoffs Amayco has against E.L. Mayhue and to satisfy the tax liabilities of Harlene Mayhue and Fred Mayhue amounts to a deprivation of due process and constitutes an abuse of discretion. During the lengthy course of the proceedings below, Mr. Mayhue had several opportunities to present his position. Because Mr. Mayhue demonstrated total disregard for the business debts of Amayco to E.L. Mayhue and Son, which resulted in his being held in contempt of court several times, we conclude that the lower court acted properly in appointing a neutral trustee with the authority to settle the business operations of the two companies.

Accordingly, we affirm the Orders of the lower court.

      . An interest in a business or a closely-held corporation that is acquired during marriage presents little controversy in being given the status of marital property by the courts of other states. See, e.g., Re Marriage of White, 98 IIl.App.3d 380, 53 Ill.Dec. 786, 424 N.E.2d 421 (1981); Scherzer v. Scherzer, 136 N.J.Super. 397, 346 A.2d 434 (1975); Poniatowski v. Poniatowski, 275 S.C. 11, 266 S.E.2d 787 (1980). See also 24 Am.Jur.2d, Divorce and Separation § 900.

      . Moreover, the tax liability of the Mayhues had been under the scrutiny of the Internal Revenue Service for some time, making it even more logical to appoint a neutral third party to resolve the dispute.

      . Additionally, Amayco contends that the appointment of Mr. Gropp as trustee over both Amayco and E.L. Mayhue and Son constitutes a conflict of interest. We find that this claim has absolutely no merit as the instant case arises out of a conflict between Mr. and Mrs. Mayhue, and not the two businesses.


text:
    485 A.2d 499
    Jennie GLAD, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued June 20, 1984.
    Filed Dec. 7, 1984.
    Petition for Allowance of Appeal Denied March 18, 1985.

      Frank M. Gianola, Pittsburgh, for appellant.
    Paul L. Hammer, Pittsburgh, for appellee.
    Before TAMILIA, JOHNSON and MONTGOMERY, JJ.
   TAMILIA, Judge:

The sole question in this case is whether appellant is entitled to benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act for the shotgun slaying of her husband, a motor vehicle occupant, who was killed outside his vehicle while fleeing from a third party. The trial court held that there could be no recovery and entered summary judgment in favor of State Farm Mutual Automobile Insurance Company, the No-fault insurance carrier. We affirm.

The facts are not in dispute. On August 12, 1980, Richard Stoyko shot and killed Shelby Jean Storm, the woman with whom Stoyko lived, following a heated argument the previous day. After the shooting, Stoyko drove to an isolated dirt road in the vicinity of Gates Hollow, Pennsylvania and fell asleep in his car. When he awoke, he noticed that Joseph Glad’s pickup truck, which was parked directly behind his car, had blocked him in. Stoyko then told Mr. Glad to move his truck, but he refused. Mr. Glad then got out of his truck and was immediately shot and killed. Stoyko then put the shotgun and some alcoholic beverages from his car in the deceased’s truck and drove it from that time until he turned himself in to the police the following day.

Appellant, Jennie Glad, filed an action in assumpsit against appellee, State Farm Mutual Automobile Insurance Company (hereinafter “State Farm”), to recover No-fault insurance benefits pursuant to contracts of automobile insurance issued by State Farm to herself and to her deceased husband. The insurance policies issued by State Farm contain the following relevant clause:

We will pay in accordance with the No-fault Act for bodily injury to an insured, caused by accident resulting from the maintenance or use of a motor vehicle as a vehicle: ... (Emphasis in original)

Nowhere in the policies are the terms “accident”, “maintenance”, or “use” defined.

Appellant’s complaint avers that her husband’s death resulted from the “use, ownership, operation and maintenance” of his insured vehicle. On March 30, 1982, State Farm filed a motion for summary judgment on the basis that Mr. Glad’s death did not arise out of the “maintenance or use of a motor vehicle” and that Mr. Glad was not a “victim”. In accordance with Rule 1035(b) of the Pennsylvania Rules of Civil Procedure, appellant filed an opposing affidavit and the parties supplied the Court en banc with a partial transcript of the murder trial of Richard Stoyko, who was convicted of first degree murder for the death of Mr. Glad. The affidavit and a partial transcript of the murder trial, which contained the testimony of Lieutenant Blair R. Jones of the Uniontown Police Department and that of the defendant, Stoyko, were made part of the record by an Order dated April 20, 1983. State Farm’s motion for summary judgment was granted on March 17, 1983, by the Court en banc consisting of the Honorable Judges, S. Louis Farino and Ralph H. Smith, Jr. The lower court held that Mr. Glad’s death did not arise out of the maintenance or use of the motor vehicle because the actual shooting occurred outside of the truck. This appeal followed.

The issue raised by the appellant is whether the decedent was a “victim” of an accident arising out of the “maintenance or use of a motor vehicle,” 40 Pa.C.S.A. § 1009.103, entitling appellant to collect No-fault benefits. We have considered this issue in several factually similar, albeit nonidentical, cases to the case sub judice, and have concluded that a claimant cannot recover. See Camacho v. Nationwide Insurance Co., 314 Pa.Super. 21, 460 A.2d 353 (1983); Howe v. Harleysville Insurance Companies, 313 Pa.Super. 65, 459 A.2d 412 (1983); Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 452 A.2d 735 (1982); Erie Insurance Exchange v. Eisenhuth, 305 Pa.Super. 571, 451 A.2d 1024 (1982); Rife v. State Farm Mutual Automobile Insurance Co., 304 Pa.Super. 359, 450 A.2d 720 (1982).

Appellant contends that when the insurance policy in question is read in conjunction with Section 1009.201 of the No-fault Act, i.e., that “any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this act,” it becomes clear that she may recover under the letter and spirit of the Act. We disagree with such a liberal interpretation of our Legislature’s intention in promulgating the No-fault Act. As we stated in Rife v. State Farm Mutual Automobile Insurance Co., “to sanction the claim of the appellant in the instant case would be to affix the imprimatur of this Court to the manipulation of a statute that was not, at least from our reading of the statutory and case law on the subject, contemplated by the legislators.” 304 Pa.Super. at 364, 450 A.2d at 723.

We are faced with an interpretation of the legislative intent and purpose in enacting the No-fault Act. Section 1009.102(b) clearly sets forth the purpose of the Act: “[I]t is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.” In enacting the No-fault Act, the Legislature sought, in part, “the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways ...” 40 P.S. § 1009.102(a)(3).

In the definitional section of the No-fault Act, 40 P.S. § 1009.103, “victim” is defined as: “an individual who suffers injury arising out of the maintenance or use of a motor vehicle.” In this same section, the term “injury” is held to be: “accidentally sustained bodily harm to an individual and that individual’s illness, disease, or death resulting therefrom.” Id. Also, “ ‘maintenance or use of a motor vehicle’ means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into or alighting from it.” Id.

The No-fault Act must be read as a whole since to interpret each section individually would alter the scope envisaged by the Legislature. “It is clear that this was never intended to be a general liability insurance which would cover all injuries, no matter how remotely connected with the use or maintenance of a motor vehicle, but is intended to coyer motor vehicle accidents.” Camacho v. Nationwide Insurance Co., 314 Pa.Super. at 23, 460 A.2d at 354. Any other interpretation of the Act would defeat its purpose and economic feasibility. We hold that the term “motor vehicle accident” is one of common parlance in today’s society and the coverage of the No-fault Act is limited to accidents during the maintenance or use of motor vehicles. Id.

Another instructive case is Day v. State Farm Mutual Insurance Co., 261 Pa.Super. 216, 396 A.2d 3 (1979), where this Court stated:

The real issue in this case involves the instrumentality used to cause the injury, not whether it was intentionally or accidentally inflicted. Automobile insurance ... [is] designed to compensate victims for vehicle-caused injuries. There must be some connection between the harm done and the insured vehicle. See Wheeler et al. v. London Guarantee & Accident Co., 292 Pa. 156, 140 A. 855 (1928), Ferry v. Protective Indemnity Company of New York, 155 Pa.Super. 266, 38 A.2d 493 (1944), Presbyterian University of Pennsylvania Medical Center v. Keystone Insurance Co. and Willie Bass, 251 Pa.Super. 71, 380 A.2d 381 (1977). The vehicle itself is covered by the automobile policy, and an individual is covered only by nature of his function as the driver of that vehicle. The intent of the driver becomes relevant only after a determination is made that the injury complained of was caused by the vehicle. This is, in fact, the meaning of the language 'arising out of the ownership, maintenance or use of such ... motor vehicle,’ contained in the State Farm policy.

Id., 261 Pa.Superior Ct. at 219, 396 A.2d at 5. See also Rife v. State Farm Mutual Automobile Insurance Co., 304 Pa.Super. at 365-66, 450 A.2d at 723.

Appellant contends that a mere “but for” causation test, i.e., a cause and result relationship, is enough to establish a causal link between the “ownership, maintenance and use” of the vehicle and the death of Mr. Glad. See, e.g., Manufacturers Casualty Insurance Co. v. Goodville Mutual Casualty Co., 403 Pa. 603, 170 A.2d 571 (1961). While this Court has previously held that a cause and result relationship is enough to satisfy the “arising out of” provision of an automobile insurance policy, Eichelberger v. Warner, 290 Pa.Super. 269, 434 A.2d 747 (1981), we recently have reaffirmed our position that the automobile itself, not some external force, must be the instrumentality used to cause the injury in No-fault cases. Spisak v. Nationwide Mutual Insurance Co., 329 Pa.Super. 483, 478 A.2d 891 (1984) (motorist who had died as a result of carbon monoxide poisoning while in a parked automobile was allowed to recover No-fault benefits). Moreover, the Eichelberger case can easily be distinguished from the present one as it involved injuries directly caused by a motor vehicle.

Consequently, we conclude that the unprovoked, intentional shooting of appellant’s husband was not within the scope of the protection contemplated by the Legislature. Here, we have an intentional act which has no connection with a motor vehicle accident other than that the injured party was operating a motor vehicle prior to his death.

For the foregoing reasons, we affirm the Order of the lower court granting State Farm’s motion for summary judgment.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101 et seq., 40 P.S. § 1009.101 et seq., repealed and superseded by Act of February 12, 1984, P.L. 41, No. 11, § 3, 75 Pa.C.S.A. § 1701 et seq. as amended.

      . In Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 452 A.2d 735 (1982), this Court held that the causal connection required for purposes of coverage under the No-fault Act need not rise to the level of proximate causation, but “there must be some connection, more than mere chance or happenstance, between the injuries sustained and the insured vehicle.” Id., 306 Pa.Superior Ct. at 303, 452 A.2d at 737.

      . We need not address appellant’s contention that Mr. and Mrs. Glad were the "victims” of an "accident” because of our prior determination that the death of Mr. Glad did not arise from the "maintenance or use” of a motor vehicle. Additionally, appellants contend that the insurance policies were ambiguous as to whether or not they covered death or injury resulting from the intentional acts of another. Referring to Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974), appellants claim that State Farm had a duty to explain the meaning of the terms "accident”, “maintain", or “victim" to the Glads, whose ability to read was limited. As we have held that the above terms were not ambiguous, and that the purpose and intent of the No-fault Act precludes appellant’s claim, these contentions are rendered moot, and we need not discuss them. Furthermore, we wish to point out that the Hionis case upon which appellant relies, has been abrogated by our Supreme Court in Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983).