author: HESTER, Judge:

text:
    496 A.2d 1244
    Edward Thomas PARKER, Appellant, v. Lynn Marie Parker MacDONALD.
    Superior Court of Pennsylvania.
    Argued May 23, 1985.
    Filed Aug. 9, 1985.

      Arnold Machles, Philadelphia, for appellant.
    Anthony J. DeFino, Philadelphia, for appellee.
    Before: CAVANAUGH, CIRILLO and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an Order of the Court of Common Pleas of Philadelphia County which awarded shared custody to the parties of their minor child. Father appellant argues that this order, which represents a change from the pre-existing custody order, was based upon insufficient evidence to establish a substantial change of circumstances. Mother appellee contends that this appeal is interlocutory and should be quashed.

Before addressing the issues raised in this appeal, a recitation of the factual and procedural history is necessary. The parties were married on June 17, 1979, and Brian Parker was born on March 24, 1980. In December, 1982, the parties separated, and were ultimately divorced on April 11, 1984. While married, they resided in Philadelphia. Upon their separation, appellee moved to Florida to seek employment. Pursuant to an understanding between the parties, until appellee was in a position to maintain continuing custody of Brian in Florida, the child would reside with appellant in Philadelphia. Several months later, the parties filed cross-petitions for custody. Following a full hearing in October, 1983, the court entered an award of shared custody to the parties, with physical custody vested in appellant, and specified periods of visitation awarded to appellee.

Appellee remarried in April, 1984, terminated her employment as an executive secretary, and filed a petition seeking primary custody of Brian in June, 1984. A hearing was held on appellee’s petition and, by Order dated November 14, 1984, the lower court awarded shared custody of Brian to the parties, with appellant having primary custody until December 28, 1984, then primary custody shifting to appellee until April 15, 1985, then to appellant until August 1, 1985, when the child is to be returned to appellee.

Initially, we will discuss appellee’s Petition to Quash this appeal. Appellee contends that jurisdiction does not exist in this matter pursuant to 42 Pa.C.S.A. § 742 by reason that said Order of the lower court is not a final order as contemplated by this statute. Rather, appellee asserts that the challenged order is interlocutory in nature, does not give rise to an interlocutory appeal as of right, see Pa.R. A.P. 311, and that appellant has failed to satisfy the requirements of Pa.R.A.P. 1311, which outlines the steps to be followed when seeking an interlocutory appeal by permission.

Appellee contends this appeal is not final in light of the language used by the trial judge in his order.

In view of the anticipated changes in the father’s residence and the child’s enrollment in school in September, 1985, our Order is tailored to meet present circumstances and subject to review, unless the parties come to their own agreement, close to the time when the anticipated changes shall occur.

He further stated:

Unless the parties come to an agreement in the interim, this Court shall entertain an application for review during the month of July, 1985, with regard to the child’s enrollment in school and schedule of custody.

Initially, we note that it is incumbent upon this Court to determine whether an appeal is properly before it. Huber v. Huber, 323 Pa.Super. 530, 470 A.2d 1385 (1984). It is well settled that an appeal properly lies only from a final order unless otherwise permitted by statute. Waddell v. Trostel, 336 Pa.Super. 527, 485 A.2d 1208 (1984). A final order has been defined as one which effectively ends litigation or disposes of the entire case. Indiana County Hospital Authority v. McCarl's Plumbing & Heating Co., 344 Pa.Super. 226, 496 A.2d 767 (1985); Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983).

We agree with appellee that the current posture of this case would prevent us from entertaining this appeal if it were an interlocutory order. However, we are unable to conclude that the Order of November 14, 1985, lacks finality. Concededly, the lower court by its own terms provided for review of its order in July, 1985, but only upon application for such review by either party. This case was not scheduled for subsequent review by the lower court. Rather, the court below encouraged the amicable resolution of the custody of their son by the parties themselves. If the parties reached an agreement, it is possible that further court intervention would not be required. Thus, the Order of November 14, 1984, effectively ended the litigation, and constituted a final order appropriate for review.

Moreover, the challenged Order disposed of the parties’ rights to custody during the period between November, 1984, and July, 1985, and thereafter unless and until a petition for re-examination of custody is filed by one of the parties. We conclude that the Order has sufficient aspects of finality to be appealable. The motion to quash is therefore denied.

Finally, we wish to note that custody orders are unique and never final. In re Custody of Pearce, 310 Pa.Super. 254, 456 A.2d 597 (1983). Child custody orders are temporary in nature and always subject to change if new circumstances affect the welfare of a child. Commonwealth ex rel. Beemer v. Beemer, 200 Pa.Super. 103, 188 A.2d 475 (1962). The Commonwealth has a duty of paramount importance, to protect the child’s best interests and welfare. To that end, it may always entertain an application for modification and adjustment of custodial rights. Friedman v. Friedman, 224 Pa.Super. 530, 307 A.2d 292 (1973). The lower court, by including the above-cited language in its Order, was merely recognizing the fact that Brian’s entrance into an academic program would provide a sufficient basis for a re-evaluation of his custodial placement, absent an agreement between the parties.

Turning to appellant’s argument, he contends that the lower court erred in granting appellee’s petition for modification of a custody order when appellee presented insufficient evidence to warrant such a change. In cases of existing custody orders, the party seeking to modify that award must meet the burden of proving a substantial change of circumstances which would justify a change. Hartman v. Hartman, 328 Pa.Super. 154, 476 A.2d 938 (1984); English v. English, 322 Pa.Super. 234, 469 A.2d 270 (1983). Once that substantial change is proven, however, both parents share equally the burden of establishing with which parent the child’s interests would be best served. Gonzalez v. Gonzalez, 337 Pa.Super. 1, 486 A.2d 449 (1984).

The overriding goal in any child custody matter is to render a decision encompassing the “best interests” of the child. Gonzalez v. Gonzalez, supra. This term has been defined as including the child’s physical, intellectual, moral and spiritual well-being. Hartman v. Hartman, supra. To achieve this goal, an appellate court must closely scrutinize the factual findings of the lower court. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). If those findings support the trial court’s factual conclusions, we may not disturb the result. Only if those conclusions are unreasonable in light of the court’s findings, and thus, represent a gross abuse of discretion, may we interfere with them. Id., 505 Pa. at 237, 478 A.2d at 806.

The lower court determined that substantial changes in circumstances had occurred herein. Since the original custody order of October 21, 1983, which the lower court characterized as an award of shared custody tailored to accommodate the needs of the child, appellee has remarried and terminated her employment. Her lifestyle is now viewed by the trial court as stable and permanent. She and her present husband occupy a home with sufficient space to accommodate Brian. Her husband has indicated his willingness to accept the child as part of their family and appears to enjoy a good relationship with him. The court found sufficient evidence to indicate that Brian has enjoyed the time spent with his mother in Florida and feels comfortable being there.

When rendering the original custody award in October, 1983, the trial court concluded that both parents love their child and that each is competent to care for him. However, in entering the Order challenged herein, the court decided that since the mother’s remarriage had freed her from the need to work, she could devote more time to her son. Thus, the court fashioned an Order wherein the child was in his mother’s custody for greater periods of time. In so ordering, the court conceded, “[although this would necessarily lessen the time spent with his father, there was no other way to insure contact with both parents given the distance between them.”

Appellant contends that the evidence produced by appellee, and relied upon by the lower court, did not amount to a substantial change in circumstances. He argues that the court improperly considered appellee’s remarriage, her freedom from working, appellee’s new home, and her now affluent lifestyle, when concluding that a sufficient change of circumstances occurred. In support of his position, appellant relies upon Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1982), for the proposition that remarriage alone does not constitute a substantial change of circumstances, and In re Custody of Temos, 304 Pa.Super. 82, 450 A.2d 111 (1982), where we held that the need for a party to work full time cannot be considered adversely if adequate child care provisions have been made.

Undeniably, these factors cannot be held against appellant and do not militate against him as custodian of Brian. However, these factors, when accumulated, do enhance the ability of appellee to care for her child and certainly support the decision of the lower court to expand her custody of Brian. Further, our review of the record and the opinion below does not reveal undue reliance by the judge upon appellee’s socio-economic position. Nor did he emphasize appellant’s recent change of residence. Rather, this fact was merely mentioned in passing and did not constitute any finding on the part of the trial judge that such a move adversely affected Brian or supported a need for increased visitation to appellee.

Finally, appellant argues that the prior custody arrangement should not be disturbed when the child is receiving love, guidance, companionship, and direction from a parent on a consistent basis. Brian has been living with appellant since January, 1983. Appellant asserts, and not without persuasion, that he had been the nurturing figure until December, 1984, and that the need for continuity in a young child’s life demands that custody remain with appellant.

Unarguably, this Court has consistently recognized that a child “becomes strongly attached to those who stand in parental relationship to it and who have tenderly cared for it.” Gonzalez v. Gonzalez, supra 337 Pa.Super. at 6, 486 A.2d at 452, quoting Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 425, 448 A.2d 1113, 1115 (1982). This fact can, in some instances, be controlling in the custody decision. English v. English, supra 322 Pa.Super. at 240-241, 469 A.2d at 273; Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981).

However, those cases where significant emphasis was placed upon this factor involved awards of full custody. This case, in the words of the trial court itself, involves a prior order of shared custody and the modification of that award to permit increased custody of the child to a parent who has already been deemed a fit custodian. Moreover, although appellant had physical custody of Brian since January, 1983, petitions for custody were filed with the court in April, 1983. A final Order, entered in October, 1983, awarded shared custody to the parties, although due to appellee’s circumstances, Brian remained with appellant with visitation rights to appellee. Finally, this Court has refused to draw adverse inferences against a party, who though eager to care for his or her child, recognizes that it often is in the child’s best interests to remain with another custodian. See Lombardo v. Lombardo, 345 Pa.Super.-, 496 A.2d 858 (1985); In re Wesley, 299 Pa.Super. 504, 445 A.2d 1243 (1982).

Having found sufficient support in the record to sustain the trial court’s factual conclusions, we affirm the Order entered below. The trial court correctly found a change of circumstances on the evidence presented to warrant a re-examination of the existing custody order, and correctly concluded that the best interests of the child would be served by increased contact with his mother. We discern no abuse of discretion on the part of the lower court and will not disturb the Order of November 14,1984, on this appeal.

Naturally, either party has a right to seek a modification of that Order if they fail to reach an agreement as to the placement of Brian for the upcoming school year.

Order affirmed.

      . This contention was raised earlier by appellee in a motion to quash, which was denied by this court without prejudice to raise the issue on appeal. Appellee thereafter filed a petition for review of that denial in the Supreme Court, which has not yet acted upon that petition. We refused to stay these proceedings, per appellee’s request, until the disposition of her petition before the Supreme Court.

      . The lower court also ruled upon a Petition for Contempt, filed by appellant in September, 1984, when appellee failed to return the child from a scheduled visit in a timely fashion. Appellee was found in contempt and was reprimanded by the lower court.

      . Appellant does not address this Petition in his brief.

      . This section provides:
      The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the court of common pleas____

      . Pa.R.A.P. 311 provides that an appeal may be taken as of right from those orders specifically listed therein, including those affecting judgments, attachments, change of criminal venue or venire, injunctions, new trials, partition, or any order made appealable by statute or general rule.
      Pa.R.A.P. 1311(b) states that permission to appeal from an interlocutory order “may be sought by filing a petition for permission to appeal with the prothonotary of the appellate court within 30 days after entry of such order in the lower court____”


source: Caselaw Access Project

author: ROBERTS, Judge:

license: Public Domain

text:
    496 A.2d 1249
    In the Matter of the Petition of Jessica Claire SCHIDLMEIER, a Minor, by Paul M. KOSLOF, her Father, for Change of Name to Jessica Claire Koslof. Appeal of Dona SCHIDLMEIER, Natural Mother of Jessica Claire Schidlmeier.
    Superior Court of Pennsylvania.
    Argued March 28, 1985.
    Filed Aug. 9, 1985.

      Felix Deguilio, Pittsburgh, for appellant.
    Theodore F. Huckestein, Jr., Pittsburgh, for appellee.
    Before MONTEMURO, ROBERTS and BLOOM, JJ.

       Judge Louis A. Bloom, Senior Judge of the Court of Common Pleas of Delaware County, Pennsylvania, is sitting by designation.

   ROBERTS, Judge:

This appeal challenges the trial court’s order changing a minor child’s name from Jessica Claire Schidlmeier, as designated on her duly registered birth certificate, to Jessica Claire Koslof. The court granted the change on the petition of appellee Paul Koslof, Jessica’s father, over the opposition of appellant Dona Schidlmeier, Jessica’s mother. We reverse the order changing Jessica’s surname.

Paul Koslof and Dona Schidlmeier were married on December 19, 1981. At the time of the marriage, Dona also had a seven-year-old daughter, Jeanette Schidlmeier, who is not Paul’s child. On February 22, 1982 Paul and Dona separated. Both parties then knew that Dona was pregnant. The court found that Dona used the name Koslof before the separation and her birth name, Schidlmeier, after the separation.

Jessica was born on July 28, 1982 in Allegheny County, five months after her parents separated. Dona chose the name Jessica Claire Schidlmeier and a birth certificate bearing that name was recorded with the Department of Health. Approximately two days after Jessica was born, Dona informed Paul of Jessica’s birth. Paul went to the hospital that evening and learned that both Dona and Jessica were registered at the hospital under the name Schidlmeier.

On February 15, 1984, more than 18 months after Jessica Schidlmeier’s birth certificate was recorded, Paul filed a petition to change Jessica’s surname to Koslof. In April 1984, at the time of the hearing on the petition, Jessica was 21 months old and had lived with her mother and Jeanette since birth. A divorce action filed by Paul was then pending, Paul had partial custody of Jessica, and Paul was regularly making payments for support of Dona and Jessica pursuant to court order.

Appellant raises four arguments on this appeal: (1) that the noncustodial parent of a minor child does not have standing to petition to change the child’s name, (2) that the custodial parént has the right to choose a newborn child’s name pursuant to Health Department regulations, (3) that appellant was acting in the child’s best interests by giving the child a surname of her choice, and (4) that granting the father a primary right to choose a child’s surname is contrary to the 1971 Equal Rights Amendment to the Pennsylvania Constitution, Article I, § 28.

Appellant asserts that the custodial parent has an absolute right to determine the surname of a minor child in his or her care. She likewise contends that the noncustodial parent has no standing to petition to change a name properly registered on the child’s birth certificate. Although it is unusual for a noncustodial parent to petition to change a child’s name, we are unpersuaded that appellee lacks standing to institute such a proceeding. Cf. Franklin Township v. Commonwealth of Pennsylvania, 500 Pa. 1, 452 A.2d 718 (1982).

Turning to the merits of the controversy, we must determine whether the court erred in ruling that appellee established the right to the relief he requested, the change of his daughter’s surname. We consider first the circumstances surrounding the initial choice of Schidlmeier as Jessica’s surname.

The parties do not dispute that Jessica was born in wedlock, to separated parents. There is no question that Dona has cared for Jessica since birth, nor any suggestion that Paul ever sought or desired full custody of Jessica. At the time of Jessica’s birth, Dona chose her own birth name, Schidlmeier, as Jessica’s surname, and a birth certificate recording that name was filed with the Pennsylvania Department of Health.

Section 1.7 of Title 28 of the Pennsylvania Code sets forth the manner in which a surname is to be chosen for a child born in wedlock:

§ 1.7. Registration of children born in wedlock.
(a) The designation of a child’s name, including surname, is the right of the child’s parents. Thus, a child’s surname as recorded on its birth certificate may be the surname of either or both of the child’s parents, a surname formed by combining the surname of the parents in hyphenated or other form, or a name which bears no relationship to the surname of either parent.
(b) If the parents are divorced or separated at the time of the child’s birth, the choice of surname rests with the parent who has custody of the newborn child.

The trial court dismissed Section 1.7(b) as not relevant to the question of Paul’s attempt to change Jessica’s surname. The court concluded that the regulation is of no support to appellant because it is intended merely to facilitate the registration of births. We do not regard Section 1.7(b) as irrelevant, particularly since the record shows that appellee learned Jessica had been named Schidlmeier when he first visited the hospital after her birth, but did nothing to contest the name for 18 months.

Surely a child must be given a name at birth. The policy embodied in Section 1.7(b) fairly and practically allocates the responsibility for choosing a newborn child’s surname. The custodial parent generally has the right to make major decisions affecting the best interests of a minor child. See 23 P.S. § 1003.

The court also believed that appellant’s interpretation of the regulation would grant the mother an absolute right to name the child in all cases, “since in the nature of things the mother gives birth to the child and obviously has custody thereof.” The court’s construction of the regulation incorrectly equates “physical custody” with “legal custody”. See 23 P.S. § 1003. Although the child may be in the mother’s physical custody, legal custody may well rest with the natural father in cases of death or disability of the mother, agreement between the parents, or perhaps by court order. Read in the context of statutory and case law, “custody” as used in Section 1.7(b) clearly contemplates “legal custody.” In any event, here, the mother has had continuous custody of the child since birth.

On this record we hold that appellee had the burden of coming forward with evidence that the name change he requested would be in Jessica’s best interest. Cf. Laks v. Laks, 25 Ariz.App. 58, 540 P.2d 1277 (1975) (name on child’s birth certificate is prima facie correct, burden on petitioning parent to go forward with the evidence and show that name change would be in the best interests of the child).

The child’s best interests unquestionably must control in a proceeding to change a minor child’s surname. See Petition of Christjohn, 286 Pa.Super. 112, 428 A.2d 597 (1981), cf. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 232-233, 478 A.2d 800, 804 (1984) (the ultimate issue in a custody contest between parents is determining the best interests of the child); Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974) (child support matters are primarily concerned with the best interests of the child). In the case of a contested petition to change a child’s name, the court must carefully evaluate all the relevant factual circumstances to determine if the petitioning parent has established that the change is in the child’s best interests. This the court must do without according a presumption in favor of either parent. See In re Marriage of Schiffman, 28 Cal.3d 640, 647, 620 P.2d 579, 583-84, 169 Cal.Rptr. 918, 922-23 (1980); In re Marriage of Presson, 102 Ill.2d 303, 80 Ill.Dec. 294, 297, 465 N.E.2d 85, 88 (1984); Application of Saxton, 309 N.W.2d 298, 301 (Minn.1981), cert. denied, 455 U.S. 1034, 102 S.Ct. 1737, 72 L.Ed.2d 152 (1982); Cohee v. Cohee, 210 Neb. 855, 317 N.W.2d 381, 384 (1982).

Here it is to be noted that there had been no change in relevant circumstances between the time Jessica’s surname was recorded on her birth certificate and the time when the hearing on her father’s petition was held. Jessica was 21 months old at the time of the hearing, and had borne the name Schidlmeier since birth. The parties remained separated, and Jessica continued to live with her mother and sister, who both bore the name Schidlmeier. Appellee continued to visit the child regularly, and no change was contemplated in custody arrangements.

Appellee’s petition merely alleges generally that it would be in Jessica’s best interests to bear the paternal surname, a position disputed by Jessica’s mother. In ruling on the petition the court decided that: “There being no compelling reason why tradition and custom should not be followed, the petition for change of name will be granted.” Appellee’s allegation does not meet his burden of proof. Nor is the court’s rationale legally sufficient to sustain a conclusion that the name change appellee seeks is in the child’s best interests.

Review of all the relevant circumstances convinces us that appellee has failed to establish that the change he requests is in the best interests of the child. In the absence of such proof the court’s order is without support and may not stand. Accordingly, the court’s order granting change of name must be reversed.

      . Appellant contends that the court’s order granting the name change was based on an invalid presumption that a child must bear her father's surname, unless the mother can overcome the presumption with compelling arguments. She urges that such a rule of decision unconstitutionally discriminates against the mother, based purely on her sex. In support of her position, she cites the holdings of our Supreme Court that rejected the "tender years” doctrine as offensive to the concept of equality of sexes embraced by the ERA. See George v. George, 487 Pa. 133, 409 A.2d 1 (1979); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977) (plurality). Appellant also relies on the Court’s adoption of the rule that the support of children is the equal responsibility of both mother and father, see Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). She further argues that the trial court’s decision is contrary to that in In re: Stinespring, 131 P.L.J. 560, 562 (1982), in which the court stated that the father has no constitutional right to have a child bear his surname. Appellant also notes that one commentator has suggested that although a court may consider the effect of a name change on the father-child relationship, it must give equal weight to the mother-child relationship. See Comment, Surname Alternatives in Pennsylvania, 82 Dick.L.Rev. 101, 115 (1977).
      However, in light of our determination that appellee did not carry his burden of establishing that the name change he requested would be in Jessica's best interests, we need not reach appellant's constitutional argument. See Ballou v. State Ethics Commission, 496 Pa. 127, 129, 436 A.2d 186, 187 (1981) (when a case raises both constitutional and nonconstitutional issues, a court should not reach the constitutional issue if the case can properly be decided on nonconstitutional grounds.)

      . The Vital Statistics Law imposes on the Department of Health, pursuant to the Administrative Code of 1929 (see 71 P.S. § 534), the duty to install and maintain a statewide system of vital statistics. 35 P.S. § 450.201(2). The act requires the filing of a certificate of each birth occurring in the Commonwealth. 35 P.S. § 450.401.

      . In a case involving a contested name change petition, the California Supreme Court rejected the rule that a father has a primary right, as against the mother, to choose a child’s surname. In re Marriage of Schiffman, 28 Cal.3d 640, 620 P.2d 579, 169 Cal.Rptr. 918 (1980). In a separate concurring opinion, Justice Mosk stated that: “The principle that the custodial parent should be given the choice of a newborn child’s surname has been codified by the Pennsylvania Legislature. (Pa.Code, tit. 28, § 1.7(b) (1975).)” Id. at 649, 620 P.2d at 585, 169 Cal.Rptr. at 924 (1980) (Mosk, J., concurring).

      . The best interests rule has been widely accepted in the context of petitions to change a minor child’s name. See e.g., In re Marriage of Schiffman, 28 Cal.3d 640, 647, 620 P.2d 579, 583, 169 Cal.Rptr. 918, 922 (1980) (“[T]he rule giving the father, as against the mother, a primary right to have his child bear his surname should be abolished. Henceforth, as in parental custody disputes, the sole consideration when parents contest a surname should be the child’s best interest.”); In re Marriage of Presson, 102 Ill.2d 303, 80 Ill.Dec. 294, 296, 465 N.E.2d 85, 87 (1984) (“[A] change in a minor’s surname shall be allowed only when the court finds that the change is in the best interests of the minor.”); Application of Saxton, 309 N.W.2d 298, 302 (Minn.1981), cert. denied, 455 U.S. 1034, 102 S.Ct. 1737, 72 L.Ed.2d 152 (1982) (“No preference is accorded either the paternal or maternal surname____ When one parent seeks to change the surname of a child, the other parent has standing to object and the resolution of the dispute hinges on the best interests of the child.”); Cohee v. Cohee, 210 Neb. 855, 317 N.W.2d 381, 384 (1982) ("[E]ach parent has an equal right and interest in determining the surname of a child____ [T]he standard to be used ... is the best interests of the child.’’); In re Fletcher, 145 Vt. 209, 486 A.2d 627, 629 (1984) (court should "determine what is in the best interests of the child, and then decide ... whether the requested name change is warranted”).

      . A divorce action, filed after Jessica was born, was pending at the time of the hearing.


author: McEWEN, Judge:

text:
    496 A.2d 1254
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael R. FINN, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 20, 1984.
    Decided Aug. 9, 1985.

      William P. Carlucci, Assistant District Attorney, Williamsport, for Commonwealth, appellant.
    Peter T. Campana, Williamsport, for appellee.
    Before CAVANAUGH, McEWEN and ROBERTS, JJ.
   McEWEN, Judge:

We here consider an appeal by the Commonwealth from an order which discharged appellee following a preliminary hearing held before a Common Pleas Court Judge. See Commonwealth ex rel. Riggins v. Superintendent of Philadelphia Prisons, 438 Pa. 160, 263 A.2d 754 (1970). The hearing court held that the Commonwealth had failed to establish a prima facie case of conspiracy to distribute controlled substances and, as a result, discharged appellant. While the distinguished Judge Clinton W. Smith has in his able opinion provided a quite persuasive rationale for his ruling, we are, nonetheless, compelled to disagree and, therefore, reverse and remand.

It must be preliminarily observed that such orders as the one we review are not ordinarily appealable since the defendant is normally subject to rearrest. “We have long held that the conclusion of a committing magistrate that the prosecution has failed to establish a prima facie case is not a final determination of guilt [or innocence] such as an acquittal. The prosecution may bring the matter before any other officer empowered to hold a preliminary hearing.” Commonwealth v. Prado, 481 Pa. 485, 487, 393 A.2d 8, 9 (1978). Appellee was not subject to rearrest, however, because the applicable statute of limitations had expired by the time the order was entered. The order discharging appellee must be viewed, therefore, as a final order from which an appeal may properly be taken. See Commonwealth v. Prado, supra; Praisner v. Stocker, 313 Pa.Super. 332, 336, 459 A.2d 1255, 1258 (1983).

Having determined that the order discharging appellee was a final and appealable order, we proceed to determine whether the trial court correctly concluded that a prima facie case had not been established. The facts here are not in dispute. Whether a prima facie case has been established is, therefore, a question of law. As a result, the scope of our review is quite limited and the determination of the hearing court can here be reversed only if it is determined that an error of law occurred. See Commonwealth v. Prado, supra.

It is well settled that if the Commonwealth is to establish a prima facie case, the prosecution must show that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Wojdak, 502 Pa. 359, 367, 466 A.2d 991, 995 (1983). As a result, the prosecutor here was required to show probable cause (1) that appellee had entered into a criminal agreement and (2) that an overt act in furtherance of that agreement occurred. See 18 Pa.C.S. § 903. See also Commonwealth v. Jackson, 316 Pa.Super. 553, 556, 463 A.2d 1036, 1038, (1983).

As for the first requirement, we share the view of the hearing court that the evidence presented by the Commonwealth, namely, the testimony of Mr. Kirkwood and the recorded telephone conversations between appellee and Mr. Kirkwood, established that appellee and Mr. Kirkwood had agreed to promote or facilitate the commission of the crime of delivery of a controlled substance.

Once the unlawful agreement had been established, it remained for the Commonwealth to demonstrate that there had been an overt act in furtherance of the conspiracy. The overt act need not, of course, have been committed by appellee. Rather, an overt act committed by any co-conspirator in furtherance of the conspiracy will suffice to satisfy the overt act requirement in the case against appellee. 18 Pa.C.S. § 903(e). See Commonwealth v. Craft, 304 Pa.Super. 494, 498, 450 A.2d 1021, 1023 (1983). The Commonwealth contends that the purchase by Mr. Kirkwood of twenty-one pounds of hashish constituted the required overt act. It is true that Mr. Kirkwood, by reason of his conspiracy with several other individuals in addition to appellee, intended to purchase the hashish before his agreement with appellee. An individual need not, however, join a conspiracy at its inception to be guilty of the crime of conspiracy. Commonwealth v. Branch, 239 Pa.Super. 17, 21, 361 A.2d 435, 437 (1976). Here, appellee joined an already existing conspiracy to deal in controlled substances and, pursuant to that conspiracy, Mr. Kirkwood subsequently purchased twenty-one pounds of hashish for distribution to appellant and others. Thus, we conclude that the purchase of the twenty-one pounds of hashish composed the required overt act in furtherance of the conspiracy between Mr. Kirkwood and appellee.

Since we agree with the hearing court that the telephone conversations between Mr. Kirkwood and appellee demonstrated a criminal agreement, and since we here decide that the purchase of hashish by Mr. Kirkwood constituted an overt act in furtherance of the conspiracy, the conclusion follows that the Commonwealth had established a prima facie case at the preliminary hearing.

The order of discharge is reversed. The record is remanded. Jurisdiction is relinquished.

      . Our decision renders moot the question of whether the fact of and the nature of the telephone conversations between Mr. Kirkwood and appellee constituted overt acts in furtherance of the conspiracy.


author: OLSZEWSKI, Judge:

text:
    496 A.2d 1256
    COMMONWEALTH of Pennsylvania v. Rodney L. LACEY, Appellee. COMMONWEALTH of Pennsylvania v. Michael SMITH, Appellee. COMMONWEALTH of Pennsylvania v. William STEWART, Appellee.
    Superior Court of Pennsylvania.
    Argued April 2, 1985.
    Decided Aug. 9, 1985.

      Sandra L. Elias, Deputy District Attorney, Media, for Commonwealth, appellant.
    Joseph M. Devecka, State College, for appellees.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.

      . The matter was submitted to Judge Surrick on briefs and the notes of testimony from the preliminary hearing.

   OLSZEWSKI, Judge:

This matter comes before us on appeal from the dismissal of certain criminal charges against appellees Rodney L. Lacey, Michael Smith and William Stewart. The charges, possession with intent to use drug paraphernalia and possession with intent to distribute drug paraphernalia, followed a police raid on a suspected “head” shop. Finding that the Commonwealth had failed to establish a prima facie case against appellees, the lower court dismissed the charges. We have reviewed the record and the briefs in this matter. For the reasons that follow, we affirm in part, reverse in part the lower court’s orders.

I

Testimony at the preliminary hearing established that on July 28, 1983, Detective Gregory A. Kennard entered Balcony Inc., a store located at 6901 Market Street, Upper Darby, and purchased a large “bong” type pipe and a dagger which had metal knuckles built into its handle. While in the store, Kennard observed offered for sale numerous other items, some of which he considered drug paraphernalia and others, such as posters, albums and concert type shirts, which he deemed unrelated to drugs. August 3, 1983, Kennard returned to Balcony Inc. Ascertaining that the store’s merchandise remained essentially the same, Kennard prepared an affidavit for a search warrant. Later that day, the warrant issued, Kennard with detectives searched the Balcony Inc. store and seized certain merchandise then on display, as well as other merchandise found in the store’s back room. Complaints were lodged against appellees Michael Smith, William Stewart and Rodney L. Lacey for violations of the Controlled Substances, Drug Devices and Cosmetic Act, to wit, use of or possession with intent to use drug paraphernalia and delivery of or possession with intent to deliver drug paraphernalia. Additionally, appellees were each charged with a violation of the Crimes Code, the possession of prohibited offensive weapons.

Following a preliminary hearing, appellees were held for court on all charges. Counsel filed a petition for habeas corpus was filed on behalf of each appellee. The Honorable R. Barclay Surrick determined that the evidence presented by the Commonwealth failed to establish a prima facie case on the drug paraphernalia charges.

In this appeal, Commonwealth argues that the testimony presented against appellees did establish a prima facie case as to each of the crimes charged. A question arises as to exactly what elements of proof constitute a prima facie case under 35 P.S. Section 780-113(a)(33). The statute prohibits:

The delivery of, possession with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of this act.

Commonwealth contends that the items seized are, by virtue of their display in a “head” shop, necessarily drug paraphernalia. “Possession with intent to deliver,” under the Commonwealth’s theory, follows from display of drug paraphernalia in a “head” shop. The lower court, applying a more stringent scienter requirement, rejected Commonwealth’s first premise. “We fail to see how this evidence establishes that the defendants held for sale the multi-purpose items seized by authorities with the specific intent that they would be used in conjunction with illegal drugs.” Lower court opinion at 18. Finding that Commonwealth failed to establish that the items seized were in fact drug paraphernalia, the lower court dismissed the drug paraphernalia charges.

II

At issue is the interpretation of Pennsylvania’s Drug Paraphernalia Act (the “Act”). The Act, which is patterned on the Model Drug Paraphernalia Act, has been incorporated into Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act. Section 780-102(b) provides a tri-partite definition of “drug paraphernalia.” First, it defines drug paraphernalia generally as “all equipment, products and materials of any kind which are used, intended for use or designed for use” with a controlled substance. Second, it lists twelve types of items as examples of drug paraphernalia. Finally, it offers thirteen factors to be considered when determining whether an item is drug paraphernalia:

In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, statements by an owner or by anyone in control of the object concerning its use, prior convictions, if any, of an owner, or of anyone in control of the object, under any State or Federal law relating to any controlled substance, the proximity of the object, in time and space, to a direct violation of this act, the proximity of the object to controlled substances, the existence of any residue of controlled substances on the object, direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who he knows, or should reasonably know, intend to use the object to facilitate a violation of this act, the innocence of an owner or of anyone in control of the object, as to a direct violation of this act should not prevent a finding that the object is intended for use or designed for use as drug paraphernalia, instructions, oral or written, provided with the object concerning its use, descriptive materials accompanying the object which explain or depict its use, national and local advertising concerning its use, the manner in which the object is displayed for sale, whether the owner, or anyone in control of the object is legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products, direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise, the existence and scope of legitimate uses for the object in the community, and expert testimony concerning its use.

35 P.S. Section 780-102(b).

The Act includes a specific intent requirement to distinguish innocent transfers of multi-purpose items from illegal transfers of drug paraphernalia. See Pennsylvania Accessories Trade Association v. Thornburgh, 565 F.Supp. 1568, 1576 (M.D.Pa.1983); see also Hoffman Estates v. Flipside, 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). For an item to be classified as drug paraphernalia, the prosecution must establish that the person charged with violating the Act had the specific intent that the item he possessed or delivered be used with controlled substances.

So ruling, we adopt the holding of the Federal District Court in Pennsylvania Accessories Trade Association v. Thornburgh, 565 F.Supp. 1568, 1576 (M.D.Pa.1983). Although we are not bound by an inferior federal court’s interpretation of state law, see Moore v. Sims, 442 U.S. 415, 428, 99 S.Ct. 2371, 2379, 60 L.Ed.2d 994 (1979), we are persuaded by the reasoning of Judge Herman’s thoughtful opinion. An item does not qualify as drug paraphernalia unless it is “used, intended for use or designed for use” with controlled substances. It is clear that the Act permits a person to be arrested, prosecuted and convicted only for that person’s own use, intent or design. This construction has been adopted by those federal circuit courts which have considered the issue. See Pennsylvania Accessories Trade Association v. Thornburgh, 565 F.Supp. at 1576-77 and cases cited therein. Further, as Judge Herman correctly notes, this interpretation is impelled by Pennsylvania law. See Commonwealth v. Wilson, 449 Pa. 235, 238, 296 A.2d 719, 721 (1972) (liability for acts of another only with a showing of shared criminal intent); Commonwealth v. Teada, 235 Pa.Super. 438, 444, 344 A.2d 682, 684-85 (1975) (if inconsistent interpretations are both reasonable, benefit of doubt inures to defendant); 1 Pa.C.S. Section 1928(b)(1) (penal statutes strictly construed).

Precisely because a defendant is to receive the benefit of a doubt, we are not persuaded by the reasoning of the Commonwealth Court in Cochran v. Commonwealth, 69 Pa.Cmwlth. 74, 450 A.2d 756 (1982). In Cochran the Commonwealth Court, addressing an analysis of the Drug Paraphernalia Act, assumed that objects could be classed as drug paraphernalia solely on their physical characteristics. The problem with such an approach is that it fails to distinguish “the paper clip which holds the pages of this opinion from an identical clip which is used to hold a marijuana cigarette.” Pennsylvania Accessories Trade Association, Inc. v. Thornburgh, 565 F.Supp. at 1577 (citation omitted).

To summarize, an item can be qualified as “drug paraphernalia” only if it meets the statutory definition of Section 780-102(b) and the prosecution establishes that the accused used it, intended it for use or designed it for use with controlled substances.

Ill

Having ascertained the relevant law, we turn now to the purpose and procedure of the preliminary hearing and to the scope of our powers on review.

A creature of statute, the preliminary hearing is intended to protect the accused from unlawful detention. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978). To that end, the prosecution must establish at least a prima facie case that a crime has been committed and that the accused is the one who committed it. Commonwealth v. Mullen, 460 Pa. 336, 341, 333 A.2d 755 (1975). The Commonwealth’s burden at this stage falls short of proof beyond a reasonable doubt. Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976). The proof need only be such that, if the evidence were presented at trial and accepted as true, the trial judge would be warranted in allowing the case to go to the jury. Commonwealth ex rel. Scolio v. Hess, 149 Pa.Super. 371, 374-375, 27 A.2d 705, 707 (1942).

Case law prescribes a mechanical standard of review:
Our function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct. If the proven facts fit the definition of the offenses with which the appellees are charged, then a prima facie case was made out as to such offense or offenses. If the facts do not fit the statutory definitions of the offenses charged against the appellees, then the appellees are entitled to be discharged.

Commonwealth v. Lynch, 270 Pa.Super. 554, 582, 411 A.2d 1224, 1239 (1980) (citations omitted).

In the instant case, Commonwealth sought to establish intent with circumstantial evidence. “The use of inferences is a process of reasoning by which a fact or proposition sought to be established is deduced as the logical consequence from the existence of other facts which have been established,” Commonwealth v. Wojdak, 502 Pa. 359, 368, 466 A.2d 991, 996 (1983) (citations omitted). The test for reviewing these inferences is well established:

Evidentiary inferences, like criminal presumptions, are constitutionally infirm unless the inferred fact is more likely than not to flow from the proved fact on which it is made to depend. When the inference allowed is tenuously connected to the facts proved by the Commonwealth, due process is lacking.

Commonwealth v. McFarland, 452 Pa. 435, 439, 308 A.2d 592, 594 (1973) (citations omitted). The “more-likely-than-not” test is, of course, a minimum standard against which we measure the reasonableness of the inferences used to establish a prima facie case of criminality. Commonwealth v. Wojdak, 502 Pa. at 368, 466 A.2d at 996.

IV

In the case at bar, Commonwealth relied on the physical appearance of the items on display at Balcony Inc. and the experience of the officers as narcotic investigators to establish that the items were intended for use as drug paraphernalia. The lower court concluded that Commonwealth’s evidence failed to support an inference of specific intent. We disagree.

Section 780-102(b) contains a nonexhaustive list of factors to guide law enforcement authorities and the courts in determining whether an object is drug paraphernalia, that is, whether it is possessed, delivered or manufactured with the requisite intent. Pennsylvania Accessories Trade Association v. Thornburgh, 565 F.Supp. at 1578. Commonwealth, at the preliminary hearing, introduced various items purchased or seized from Balcony Inc. These items included a “bong” type pipe; a leather packet containing a mirror, straw, spoon type object, razor blade and clear vial, a second packet, “basically the same type of kit but used,” assorted pipes and a scale. Exhibits C-1, C-2, C-7, C-8, C-12 and C-13. Section 780-102(b) offers examples of drug paraphernalia; among them are “Bongs,” “Miniature cocaine spoons and cocaine pipes,” “metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls” and “scales or balances used, intended for use or designed for use in weighing or measuring controlled substances.” Chief among the factors to be considered by the court is expert testimony concerning the object’s use. Sergeant Greg Seltzer testified as an expert witness as to the illegal use which could be made of the items seized and purchased from Balcony Inc.

On the basis of the evidence presented at the preliminary hearing, we are satisfied that the Commonwealth did establish a prima facie case with respect to the alleged violations of Section 780-113(a)(33). Section 780-113(a)(33) prohibits the possession with intent to deliver drug paraphernalia. To establish a prima facie case under Section 780-113(a)(33), the Commonwealth must show first that the seized items constitute “drug paraphernalia.” We are satisfied that the items fall within the statutory description. See Section 780-102. The further requirement of specific intent, that each of the accused intended each of the various items to be used with controlled substances, may be inferred from the facts of this case, the nature of the items, and the officers' experience in narcotics investigations. Possession with intent to deliver the paraphernalia follows from the totality of the circumstances in this case.

We note the testimony on record tending to militate against an inference of specific intent. The “bong” type pipe bore a sticker which indicated studies done by the United States Department of Health, Education and Welfare show that tobacco smoke filtered through water pipes contain 50% less carcinogenicity than smoke from standard pipes, cigarettes and cigars. Signs throughout the store cautioned: “You must be 18 to buy tobacco merchandise,” “You must be 18 to purchase pipes, papers, or any tobacco related merchandise, please have I.D. ready,” “No item we sell is intended for use with any illegal substances, therefore, if you imply the item you want is to be used illegally, we must refuse to sell you that item.” The seized kits were displayed as “Snuff Kits.” In turn, each officer testified that he had no knowledge that any of the defendants had prior convictions relating to controlled substances; that he had discovered no residue of controlled substances in the objects seized at Balcony Inc.; that he had no evidence or names of persons to whom defendants had actually delivered items from Balcony Inc.; that he had no knowledge that any of the defendants had training concerning objects used for ingesting controlled substances; that he had no reason to believe that any defendant had participated in the design or construction of any object seized at the store; and that he had no reason to believe any of the defendants had used controlled substances. Sergeant Seltzer testified further that none of the defendants had given oral instructions concerning the use of any of the items seized; and that he had concluded the items were drug paraphernalia simply from the physical appearance of the items themselves. It was not disputed that Balcony Inc. is properly licensed to sell tobacco products. Neither officer attempted to determine the ratio of sales of the items seized as drug paraphernalia to total gross sales of Balcony Inc. See 35 P.S. Section 780-102(b).

We recognize the import of this testimony and we maintain that the inference of specific intent is reasonable at this stage of the proceedings. It remains for the Commonwealth to put its proof to test at trial. There, the fact-finder may well conclude that the circumstances fail to establish beyond a reasonable doubt the requisite intent. Such speculation is beyond us now. At this stage of the proceedings, we simply conclude that the Commonwealth has established a prima facie case with respect to Section 780-113(a)(33).

The lower court did correctly dismiss the charges under Section 780-113(a)(32). The record is devoid of testimony that any of the defendants used or possessed with the intent to use drug paraphernalia.

The orders are affirmed as to charges arising under 35 P.S. Section 780-113(a)(32) and reversed as to those arising under 35 P.S. Section 780-113(a)(33). The matter is remanded for trial on the latter charges. Jurisdiction is relinquished.

      . Smith is the owner of Balcony Inc., Stewart is its manager and Lacey is the employee who waited on Detective Kennard.

      . 35 P.S. Section 780-113(a)(32).

      . 35 P.S. Section 780-113(a)(33).

      . 18 Pa.C.S. Section 908.

      . Commonwealth fails to develop an argument as to 35 P.S. Section 780-113(a)(32). "The Commonwealth’s brief presents argument as to (a)(33). Of course, the same evidence would support a charge of (a)(32).” Appellant’s Brief at 15, n. 3.

      . The petitions were denied as to the charged violations of 18 Pa.C.S. Section 908.

      . Act of December 4, 1980 P.L. 634 No. 186.

      . Act of April 14, 1972 P.L. 233 No. 64, as amended, 35 P.S. Section 780-101, et seq.

      . Commonwealth, by failing to develop an argument under Section 780-113(a)(32), may be deemed to have waived the issue. See Commonwealth v. Batch, 328 Pa.Super. 71, 476 A.2d 458 (1984); see also Pa.R.A.P., Rule 2119, 42 Pa.C.S.A.


author: ROSENWALD, Judge:

text:
    497 A.2d 247
    CLEARFIELD BANK & TRUST COMPANY, Guardian of the Estate of Vicki Ann Sevetsky, Appellant, v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed June 28, 1985.
    Reargument Denied Sept. 11, 1985.

      John R. Ryan, Clearfield, for appellant.
    Robert L. Martin, State College, for appellee.
    Before CIRILLO, HOFFMAN, and ROSENWALD.

       Judge EDWARD ROSENWALD of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   ROSENWALD, Judge:

This is an appeal from judgment dated April 12, 1984 entered in favor of the Plaintiff and against the Defendant for interest at the rate of 18% from the date of demand of April 22, 1982, to the date of payment of November 2, 1982 for “post mortem” work loss benefits under the Pennsylvania No-Fault Insurance Act. 40 P.S. § 1009.106.

Ernest E. Sevetsky, Jr. was injured in an automobile accident on February 5, 1977. He subsequently died on March 16, 1977 as a result of said injuries. Appellant applied for no-fault benefits on March 17, 1977. Appellee, American Manufacturers Mutual Insurance Company, paid to the Estate of Ernest E. Sevetsky, Jr. one thousand five hundred dollars ($1,500.00) for funeral expenses and eight hundred twenty-seven dollars and seventy-five cents ($827.75) for pre-death work loss benefits on February 17, 1978 which covered the period of time from the date of the injury to the date of death (February 5, 1977 to March 16, 1977).

Ernest E. Sevetsky, Jr. was survived by his wife, Ruth Ann Sevetsky, and a minor daughter, Vickie Ann Sevetsky. The Estate of Ernest E. Sevetsky, Jr. made demand upon appellee for survivor’s loss benefits payable to the minor child February 24, 1978.

Appellee paid to the mother and natural guardian of Vickie Ann Sevetsky survivor’s benefits in the amount of Two Hundred Dollars ($200.00) per month up to Five Thousand dollars ($5,000.00). These payments were made each month through June 15, 1980.

Appellant made a demand for interest on the balance payable to Vickie Ann Sevetsky for work-loss benefits on October 29, 1982.

Appellee refused to pay interest on the money paid for post-mortem work loss benefits and on May 20, 1983, appellant filed his complaint in this action.

The parties submitted the case to the Court by each filing Proposed Stipulations of Fact. Counsel for both parties agreed that both the Defendant’s and the Plaintiff’s proposed Stipulations of Fact were to be considered by the Court and that “the Court may issue a decision on the law based upon the Plaintiff’s and the Defendant’s Proposed Stipulations of Facts.”

Argument was scheduled and heard on March 28, 1984.

The Court of Common Pleas then filed the following Order:

NOW, this 12th day of April, 1984, upon consideration of Stipulations of Fact and Briefs submitted in the above matter, it is the Order of this Court that judgment be and is hereby entered in favor of the Plaintiff and against the Defendant for interest at the rate of 18% to be computed under Section 106(a)(2) of the Pennsylvania No-Fault Insurance Act from the date of demand of April 22, 1982, to the date of payment of November 2, 1982.

The Defendant filed exceptions on April 24, 1984. The same day, without filing a motion for post-trial relief, Plaintiff filed a notice of appeal to the Superior Court of Pennsylvania from the Order of the Court of Common Pleas dated April 12, 1984.

Appellees filed a motion to quash alleging that the case was submitted to the court as a case stated, and that appellant did not reserve a right to appeal. The Superior Court, on January 23, 1985, denied appellee’s motion to quash without prejudice to the parties to brief the issue of appealability.

The threshold issue is whether this case is a case stated. A case stated is distinguished from a case tried by the court without jury upon stipulated facts, because on a case stated the parties submit an agreed statement of facts for the judgment of the court, whereas upon a trial without jury upon stipulated facts the case is submitted for the decision of the court. See County of Allegheny v. Allegheny County Prison Employees’ Independent Union, 53 Pa.Commw.Ct. 350, 417 A.2d 864 (1980).

Here, the parties agreed to submit this case to the court as a “case stated.” But, when the parties submitted their proposed stipulation of fact to the court, neither party mentioned that this was to be a case stated. However, in both parties’ briefs which were filed with the court prior to argument, they both agreed that the issues were to be submitted on a case stated basis. Therefore, under the circumstances, it is clear that both parties intended that the case be submitted on a case stated basis.

The problem lies in the fact that the parties agreed to have the Court issue “a decision on the law based upon both the Plaintiff’s and the Defendant’s Proposed Stipulations of Facts.” (Emphasis added.) A case stated, however, requires that the court enter a judgment, not a decision. See County of Allegheny v. Allegheny County Prison Employees’ Independent Union, supra; 6 Standard Pennsylvania Practice 40 (1960). This Court has previously held that a case stated did not exist where the parties failed to inform the Court respecting the form and substance of the judgment to be entered and to specifically agree that it should be entered. Morgan v. Mercer County, 8 Pa.Super. 96 (1898). See also, Wedgewood Associates v. Caln. Tp., 54 Pa.Commw. 557, 422 A.2d 1190 (1980); County of Allegheny v. Allegheny County Prison Employees’ Independent Union, supra.

The case sub judice is distinguished from the Morgan case. Here, the parties specifically agreed in their briefs that the case should be submitted as a case stated. The only defect was that they asked the court to render a decision instead of a judgment. This should not alter the clear intention of the parties to submit the case as a case stated, especially since the trial court took the correct approach by entering a judgment in the case. Furthermore, neither party ever objected to the court entering a judgment.

The appellant argues that the case was submitted as a case stated. The appellee argues that if this was a case stated, the appeal should be quashed for failure to reserve a right of appeal. Alternatively, appellee argues that if this was not a case stated, the appellant waived any right to appeal because they failed to file exceptions.

Appellant relies on the Commonwealth Court’s opinion in Sweeney v. Lakeland School District, 13 Pa.Commw. 485, 319 A.2d 207 (1974) in arguing that an appeal was properly taken where the case stated was “inartful” and failed to contain a reservation of the right of appeal and that Section 9, Article V, of the State Constitution provides a right of appeal from a court of record.

The problem in Sweeney was that all of the essential facts were not established. Additionally, in Sweeney there was such a great uncertainty concerning the procedures that the court in its first Order entered a verdict instead of a judgment. Here, on the other hand, all the facts were presented to the Court and both parties agreed that the case should be submitted to the Court as a case stated.

For the reasons above stated, we find that the issues were submitted to the Court on a case stated basis, and since appellant failed to reserve the right to appeal, the judgment of the court is final. Commonwealth v. Callahan, 153 Pa. 625, 25 A. 1000 (1893); County of Allegheny v. Allegheny County Prison Employees’ Independent Union, supra.

Appeal dismissed.

      . In a subsequent opinion, the Commonwealth Court cited Sweeney v. Lakeland School District, 13 Pa.Commw. 485, 319 A.2d 207 (1974) along with Commonwealth v. Callahan, supra. for the proposition that "the judgment of the court on a case stated is final unless the agreement to the case expressly reserves the right to an appeal.” County of Allegheny v. Allegheny County Prison Employees’ Independent Union, supra., 417 A.2d at 866.

      . See Ford v. Buchanan, 111 Pa. 31, 2 A. 339 (1885) (a proper case stated is where all the facts are agreed upon. Where there is one essential fact in dispute, the appeal will be quashed).


author: WIEAND, Judge:

text:
    497 A.2d 249
    Mabel COYER, Alice Salzillo, Richard Woodhall, Kenneth Horrell, Ann Staudt and R. Joseph Knechtel, Appellants, v. CUSHING CAPITAL CORPORATION, Carl J. Fugh and Ida Mae Fugh, Appellees.
    Superior Court of Pennsylvania.
    Argued March 6, 1985.
    Filed Aug. 9, 1985.

      Melanie DiPietro, Pittsburgh, for appellants.
    Barry M. Simpson, Assistant District Attorney, Pittsburgh, for appellees.
    Before BROSKY, WIEAND and LEDERER, JJ.

      The Honorable William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

The issue in this appeal is whether a broker-dealer can be held vicariously liable for the acts of an agent or liable for negligent supervision of an agent who has fraudulently obtained and converted moneys from would-be investors. The trial court, following trial without jury, found that the principal was not liable for fraudulent machinations of the agent which were unknown to the broker-dealer. We affirm.

In 1972, while associated with Investors Security, Carl Fugh met Alice Salzillo. She, in turn, introduced him to Mabel Cover, Richard Woodhall, Kenneth Horrell, and R. Joseph Knechtel. At various times, these persons and also Ann Staudt paid money to Fugh in exchange for his promise to invest their moneys for them. Beginning in 1974, Fugh began to solicit investments in commercial paper or floating notes with an annual yield of tax free interest represented to be twelve to fifteen percent. In return for moneys paid, Fugh delivered handwritten receipts. The receipts were issued by Fugh alone and did not contain the name of any investment firm which Fugh might have purported to represent. He told the investors that he could invest money only in block amounts of $100,000; and, therefore, few questioned his practice of depositing their funds into his personal account. They assumed that Fugh would draw checks from his account to purchase investments for them when the amount warranted investment. The investors, who are the present appellants, knew that Fugh was originally assodated with Investors Security. In mid-1975, however, Investors Security ceased doing business, and Fugh became a registered representative of Cushing Capital Corporation, a New York broker of stocks, bonds, and mutual funds. As a registered representative, Fugh was authorized by Cushing Capital to sell certain mutual funds and stocks listed on the New York Stock Exchange. Cushing Capital did not deal in commercial paper, and Fugh was not authorized to handle investments therein on Cushing’s behalf. Although Fugh told the appellant-investors that he had changed his affiliation, he also represented to them that he was continuing in his private capacity as a finder of capital. Cushing Capital, the evidence showed, was not aware of Fugh’s accepting moneys for investment from appellants or of the fact that Fugh was depositing appellants’ moneys in his private account. The moneys were not delivered to Cushing Capital and the investors did not ever receive acknowledgements from Cushing Capital that moneys had been received or that investments were to be made. The evidence also showed that none of the appellant-investors ever made inquiry to either Investors Security or Cushing Capital regarding the moneys which they had delivered to Fugh for investment. In 1978, after Fugh had discontinued his association with Cushing Capital, it was discovered that he had not used appellants’ moneys to purchase investments but had converted the moneys to his own use. In January 1979, Fugh entered pleas of guilty to theft by failure to make required disposition and to violating the Pennsylvania Securities Act. As a result of Fugh’s dishonest scheme, he caused losses to appellant-investors as follows:

Mabel Cover $50,796.53
Alice Salzillo 32,669.63
Richard Woodhall 3,269.89
Kenneth Horrell 9,586.25
R. Joseph Knechtel 1,150.00
Ann Staudt 89,285.81

The appellant-investors commenced a civil action against Fugh and Cushing Capital, which produced a default judgment against Fugh. After trial without jury, the court found that Cushing Capital was not liable for the losses sustained by appellants. Exceptions to the trial court’s adjudication were dismissed, and this appeal followed.

Our scope of review is limited. The findings of the trial court sitting without a jury have the same force and effect as a jury’s verdict. Snellbaker v. Herrmann, 315 Pa.Super. 520, 526, 462 A.2d 713, 716 (1983); Bigham v. Wenschhof, 295 Pa.Super. 146, 148, 441 A.2d 391, 392 (1982). They will not be disturbed unless they are unsupported by competent evidence. Snellbaker v. Herrmann, supra; Slaseman v. Myers, 309 Pa.Super. 537, 540, 455 A.2d 1213, 1215 (1983). In this case, the trial court found as a fact that Fugh had not been authorized to sell commercial paper. The court also found that appellants had no accounts with Cushing Capital and that Cushing Capital had no knowledge that appellants were giving Fugh money to invest for them, and no knowledge of the amounts so paid. Fugh’s scheme was entirely extracurricular, and Cushing Capital was not aware of it. These findings are supported by the evidence.

Appellants argue that Cushing Capital is vicariously liable, according to principles of respondeat superior, for the fraudulent misrepresentations made by Fugh and for his conversions of funds. The law is clear, however, that “where an agent acts in his own interest which is antagonistic to that of his principal, or commits a fraud for his own benefit in a matter which is beyond the scope of his actual or apparent authority or employment, the principal who has received no benefit therefrom will not be liable for the agent’s tortious act.” Todd v. Skelly, 384 Pa. 423, 429, 120 A.2d 906, 909 (1956). Cf. Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970) (principal not liable for harm caused by agent’s unauthorized negligent physical conduct). See also: 3 C.J.S. Agency § 423 (1973); 3 Am.Jur.2d Agency § 262 (1962). A principal, moreover, is not liable in deceit for his agent’s false representations where he has neither authorized nor participated in them and has not knowingly permitted the agent to make them. Littler v. Dunbar, 365 Pa. 277, 278, 74 A.2d 650, 651 (1950); Shane v. Hoffmann, 227 Pa.Super. 176, 183, 324 A.2d 532, 537 (1974). Proof of scienter on the part of the principal at the time of the misrepresentation is an essential element of a cause of action against the principal for fraud and deceit practiced by the agent. Littler v. Dunbar, supra; Shane v. Hoffmann, supra. Accord: Aiello v. Ed Saxe Real Estate, Inc., 327 Pa.Super. 429, 434-436, 476 A.2d 27, 30-31 (1984); Eckrich v. DiNardo, 283 Pa.Super. 84, 90, 423 A.2d 727, 729-730 (1980).

Fugh, unquestionably, did not have actual authority to sell commercial paper or accept money from investors for deposit in his personal account. The trial court also found that Fugh did not have apparent authority. The appellants were customers of Fugh. Fugh had cultivated them and had initially obtained moneys from them prior to his affiliation with Cushing Capital. These investors established a friendly association with Fugh; and, because of his affability, as well as his apparent religious background and hard work, they relied upon him and trusted him. At no time did appellants have direct communication with Cushing Capital. Indeed, appellants never made inquiry of Cushing Capital regarding their “investments”; all inquiries were made to and answered by Fugh. He, and he alone, was engaged in the scheme to defraud. His scheme was outside the scope of his employment and was antagonistic to his principal. The evidence showed and the trial court found as fact that Cushing Capital had no knowledge of Fugh’s personal machinations, which were calculated to line his pockets at the expense of his friends and customers. Under these circumstances, Cushing Capital was not obligated to answer vicariously for the losses sustained as a result of Fugh’s peculations.

Appellants contend also that Cushing Capital was negligent for failing to supervise adequately the activities of its agent. They argue that rules and regulations adopted by the Pennsylvania Securities Commission pursuant to the Pennsylvania Securities Act of December 5, 1972, P.L. 1280, No. 284, 70 P.S. § 1-101 et seq., imposed upon Cushing Capital a duty to supervise Fugh’s activities. The trial court determined, however, that the Commission’s regulations did not create a new cause of action or establish an absolute standard of care for a broker-dealer. The trial court found further that Cushing Capital had not been negligent in failing to discover Fugh’s private scheme to defraud his customers.

Section 506 of the Securities Act of 1972 specifically provides:

Except as explicitly provided in this act, no civil liability in favor of any private party shall arise against any person by implication from or as a result of the violation of any provision of this act or any rule or order hereunder. Nothing in this act shall limit any liability which might exist by virtue of any other statute or under common law if this act were not in effect.

70 P.S. § 1-506. It seems clear, therefore, that the legislature did not intend to create a new cause of action against a broker-dealer or establish a standard of care for investment brokers. Regulations adopted pursuant to the Securities Act were intended to make broker-dealers responsible to the state, rather than to any specific person or group. They were not intended to provide an absolute standard of care to be applied in a civil action against a broker where an agent, unbeknownst to the broker, engaged in a private scheme to defraud his friends and customers. See: Restatement (Second) of Torts § 288B, comment d.

Moreover, even if the administrative regulation were relevant to establish a standard of care, it seems obvious, as the trial court held, that the regulation imposed a duty to supervise only with respect to the agent’s activities conducted within the scope of his employment. There was no duty upon Cushing Capital to discover, at its peril, the fraudulent machinations in which Fugh was involved outside the scope of his employment. Thus, the trial court could appropriately observe, as it did, that the broker’s duty of supervision could not “realistically extend to customers of an agent whose accounts [were] not placed with the broker-dealer” and of which the broker-dealer had no knowledge.

Our review of the record discloses evidentiary support for the trial court’s finding that Cushing Capital was not negligent in failing to discover the fraudulent activities of Fugh. For this reason and also because Cushing Capital was not vicariously liable for Fugh’s fraudulent acts, the order of the trial court will be affirmed.

Order affirmed.

      . At least three of them had made legitimate investments with Investors Security which Fugh had handled for them.

      . These regulations provide, inter alia, at 64 Pa.Code § 305.011, as follows:
      (a) Every broker-dealer and investment adviser registered or required to be registered under the act shall exercise diligent supervision over the securities activities of all of its agents and employes. As evidence of compliance with the requirement to supervise the procedures and systems, the following shall be implemented by the broker-dealer or investment adviser:
      (1) Every agent or employe shall be subject to the supervision of a supervisor.
      (2) Written procedures, a copy of which shall be kept in each business office, shall be established, maintained, and enforced and shall set forth the procedures adopted to comply with the following duties imposed by this section:
      (i) The review and written approval by the designated supervisor of the opening of each new customer account.
      (ii) The frequent examination of customer accounts to detect and prevent irregularities or abuses.
      (iii) The prompt review and written approval of the handling of all customer complaints.
      (iv) The prompt review and written approval by the designated supervisor of all correspondence pertaining to the solicitation and execution of all securities transactions.
      (v) The review and written approval by the designated supervisor of the delegation by any customer of discretionary authority with respect to his account and the frequent examination of all such discretionary accounts to prevent irregularities or abuses.
      (3) Each office location shall be periodically inspected to insure that the written procedures are enforced.
      (b) Every issuer who employes agents in connection with any security or transaction not exempted by sections 202 or 203 of the act (70 P.S. §§ 1-202, 1-203) shall be subject to the supervision requirements of subsection (a) of this section with respect to such agents.


author: SPAETH, President Judge:

text:
    497 A.2d 254
    Robert COTTON and Betty Noland, Appellants, v. INSURANCE COMPANY OF NORTH AMERICA.
    Superior Court of Pennsylvania.
    Argued March 11, 1985.
    Filed Aug. 16, 1985.

      Anton H. Rosenthal, Philadelphia, for appellants.
    David M. McCormick, Philadelphia, for appellee.
    Before SPAETH, President Judge, and JOHNSON AND SHOYER , JJ.

       The Honorable Kendall H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County is sitting by designation.

   SPAETH, President Judge:

This appeal is from an order granting summary judgment. Appellants were uninsured passengers in an uninsured motor vehicle when it collided with an insured motor vehicle. Upon application to the Pennsylvania Assigned Claims Plan, appellee was designated appellants’ assigned obligor. Subsequently, without appellee’s knowledge, appellants entered into a settlement agreement with the driver of the insured vehicle. The trial court held that under the Uninsured Motorist Act, 40 P.S. § 2000(e)(2), appellants’ settlement precluded their recovery of uninsured motorist benefits from appellee. We agree, and therefore affirm.

The Uninsured Motorist Act provides in part:

(e) The coverage required by this section does not apply:
(2) To bodily injury sustained by the insured with respect to which the insured or his representative shall, without the written consent of the insurer, make any settlement with or prosecute to judgment any action against any person who may be legally liable therefor.
40 P.S. § 2000(e)(2).

Appellants were to have received uninsured motorist benefits from appellee. Thus appellee was to have provided “[t]he coverage required by this section.” It is undisputed that appellants entered into a settlement with an insured driver, i.e., with a “person who may [have been] legally liable” for the “bodily injuries] sustained by the insuredfs].” The conclusion is therefore inescapable that appellants’ settlement precluded them from receiving “[t]he coverage required by [the Uninsured Motorist Act].” See 1 Pa.C.S. § 1921(b) (“When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under pretext of pursuing its spirit.”). See also In re Fox’s Estate, 494 Pa. 584, 431 A.2d 1008 (1981); Salvado v. Prudential Property and Casualty Insurance Co., 287 Pa.Super. 304, 430 A.2d 297 (1981).

Appellants argue that despite the plain words of the statute, they are entitled to receive uninsured motorist coverage because, in their view, the statute is meant to preclude settlements with uninsured motorists only. Appellants reason that such an interpretation would not prejudice appellee’s subrogation rights, and they rely upon cases that have held that only settlements with uninsured motorists are precluded.

In its opinion, the trial court, per DOTY, J., noted that the purpose of section 2000(e)(2) is to protect the subrogation rights of the insurer. We agree and are unable to understand appellants’ argument that the construction they urge would not prejudice appellee. If appellee had paid appellants uninsured motorist benefits, it would then have been entitled to seek recovery of the amounts so paid from the drivers involved in the accident. In attempting that recovery it would no doubt have been confronted by the insured motorist’s refusal to pay anything more on the ground that as a result of a joint tort-feasor release between him and appellants, he had been “forever discharge^]” “from any and all actions, causes of action, claims, demands ____” arising out of the accident. While it is true that appellee might still have sued the uninsured motorist, we may assume that its chance of recovering from the uninsured motorist would be less than its chance of recovering from the insured motorist.

In its opinion the trial court analogizes to cases holding that breach of a contract clause precluding unauthorized settlements is tantamount to full recovery, see Associated Hospital Service of Philadelphia v. Pustilnik, 497 Pa. 221, 439 A.2d 1149 (1981); Illinois Insurance Exchange v. Braun, 280 Pa. 550, 124 A. 691 (1924), and cases holding that breach of such a clause is a material breach that ends the insurer’s obligation, Illinois Insurance Exchange v. Braun, supra; Bradford v. American Mutual Liability Insurance Co., 213 Pa.Super. 8, 245 A.2d 478 (1968); Demmery v. National Union Fire Insurance Co., 210 Pa.Super. 193, 232 A.2d 21 (1967). While we find the reasoning of these cases instructive, they are not dispositive, for this case is governed by statute. Moreover, we have strictly construed against the insurer insurance policy provisions precluding coverage if a settlement is reached. Shamey v. State Farm Mutual Automobile Insurance Company, 229 Pa.Super. 215, 331 A.2d 498 (1974).

Appellants principally rely upon Shamey v. State Farm Mutual Insurance Company, supra. There, the plaintiffs’ automobile, in the course of being driven up a slippery hill, was struck twice, first by an automobile driven by an insured driver and several moments later by an automobile driven by an uninsured driver. The plaintiffs’ insurance policy, issued by the defendant, included uninsured motorist coverage. The policy excluded from coverage “bodily injuries” as to which the insured “without written consent of the company, [shall] make any settlement.” The defendant paid $6,500 to the plaintiffs, requiring them to sign a release containing two inconsistent clauses. On the one hand, the release provided that it was in full settlement of any claim against the uninsured motorist. On the other, the plaintiffs agreed that they had not entered into any settlement with “any person ... legally liable for such bodily injuries ...” The plaintiffs had not cashed the defendant’s check when, sometime later, they settled their claim against the insured motorist and his insurer for $4,500. The defendant then stopped payment on its check and the plaintiffs sued. The appeal was from an order granting summary judgment in favor of the defendant. In reversing, we noted that public policy factors favor providing protection to injured drivers. Noting that “any contract provision which seeks to avoid responsibility in an area in which responsibility usually reposes should certainly be required to be clearly and unequivocally written,” 229 Pa. Super. at 221, 331 A.2d at 501, we resolved the ambiguity in the settlement agreement in favor of the insureds, construing the release as precluding settlement only with the uninsured motorist.

The Uninsured Motorist Act, unlike the release in Shamey v. State Farm Mutual Insurance Company, supra, is unambiguous. Appellants’ reliance on Shamey is therefore misplaced. Moreover, we note that we have expressly disapproved the interpretation of Section 2000(e)(2) that appellants urge us to adopt. Walls v. City of Pittsburgh, 292 Pa.Super. 18, 436 A.2d 698 (1981), involved an interpretation of Section 2000(d), which provides in part:

In the event of payment to any person under the coverage required by this section, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which payment is made, including the proceeds recoverable from the assets of the insolvent insurer.
40 P.S. 2000(d) (emphasis added).

We reversed the trial court’s denial of a petition to intervene filed by the plaintiff’s insurer. The insurer had previously paid the plaintiff for her injuries and sought leave to intervene in plaintiff’s settlement negotiations with the City of Pittsburgh, which the plaintiff had sued for negligent maintenance of a roadway. Noting that the purpose of Section 2000(d) is to protect the subrogation rights of the insurer, we declined to limit the insurer’s subrogation right against “any person or organization legally responsible for the bodily injury” to uninsured parties only. In reaching this conclusion, we disapproved Johnston v. Springfield Dodge, Inc., 5 Pa. D & C 3d 47, 65 Del.Co.Rptr. 191 (1978), which had read the Uninsured Motorist Act as precluding settlements only with uninsured parties, and on which appellants rely. (In citing Johnston, appellants state that it was “over’d on other grounds.” Brief for Appellants at 16. Although the facts of Walls are different from the facts here, the principle involved is the same.)

Affirmed.

      . Appellants also rely on a number of cases from other states to support their argument that Section 2000(e)(2) was meant to preclude settlement with uninsured drivers only. American Motorists Insurance Company v. Thompson, 253 Or. 76, 453 P.2d 164 (1969); Alabama Farm Bureau Mutual Casualty Insurance Co. v. Clem, 49 Ala. App. 457, 273 So.2d 218 (1973); Harthcock v. State Farm Mutual Automobile Insurance Company, 248 So.2d 456 (Miss.1971); Lebs v. State Farm Mutual Insurance Company, 568 S.W.2d 592 (Mo.App.1978); Craig v. Iowa Kemper Mutual Insurance Company, 565 S.W.2d 716 (Mo.App.1978); Government Employees Insurance Company v. Shara, 137 N.J.Super. 142, 348 A.2d 212 (Ch. 1971). These cases, however, involved the interpretation of the uninsured motorist coverage provision of insurance policies and not the settlement and subrogation provisions of the uninsured motorist statutes. Moreover, the uninsured motorist statutes that governed the policies in these cases did not contain the liberal subrogation provisions contained in the Pennsylvania Uninsured Motorist Act. See, e.g., Ala.Code § 32-7-23; Miss.Code Ann. § 8285-54; Mo.Ann.Stat. § 379.203; N.J.Stat.Ann. § 17:28-1.1; Or.Rev.Stat. § 736.317.

      . Appellants dispute appellee’s argument to the trial court that the Uninsured Motorist Act is in the nature of an implied contract with the claimant. Brief for Appellants at 14-16. Appellees contend that appellants have waived this issue. Brief for Appellee at 8-10. Given our disposition, on statutory grounds, we do not reach either of these arguments.


author: HOFFMAN, Judge:

text:
    497 A.2d 257
    COMMONWEALTH of Pennsylvania v. Thomas W. QUIGLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 2, 1985.
    Filed Aug. 16, 1985.

      Thomas Quigley, in propria persona.
    Robert S. Sacavage, District Attorney, Milton, for Commonwealth, appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the evidence is insufficient to sustain his conviction for defrauding a secured creditor. We agree and, accordingly, reverse the judgment of sentence.

On November 19, 1976, a jury found appellant guilty of defrauding a secured creditor. See 18 Pa.C.S.A. § 4110. Appellant filed post-verdict motions on November 26, 1976, reserving the right to file additional motions when the notes of testimony were transcribed. Inexplicably, the trial transcript was not filed until January 28, 1981. On September 9, 1981, appellant filed additional post-verdict motions, and, on August 26, 1982, all of the motions were denied. On May 10, 1983, appellant was sentenced to a term of three years probation and ordered to make restitution. This timely appeal followed.

The test for the sufficiency of the evidence is whether the evidence, viewed in the light most favorable to the Commonwealth and accepting as true all reasonable inferences therefrom upon which, if believed, the finder of fact could have properly based its verdict, is sufficient to prove every element of the crime charged beyond a reasonable doubt. Commonwealth v. Davis, 491 Pa. 363, 369, 421 A.2d 179, 181 (1980). The offense of defrauding secured creditors is defined as follows:

A person commits a misdemeanor of the second degree if he destroys, removes, conceals, encumbers, transfers or otherwise deals with property subject to a security interest or after levy has been made thereon with intent to hinder enforcement of such interest.

18 Pa.C.S.A. § 4110 (emphasis added). In order to create an enforceable security interest, the collateral must be in the possession of the secured creditor, or the debtor must have signed a security agreement which contains a description of the collateral. 13 Pa.C.S.A. § 9203(a)(1). A security agreement is “[a]n agreement which creates or provides for a security interest.” Id. § 9105.

With these principles in mind, we review the facts of the instant case: On December 27, 1974, Carroll Fritz gave appellant a check for $5,000 to be used in the expansion of appellant’s farm equipment business. When Fritz asked appellant for some collateral for his money, appellant wrote out a bill of sale to Fritz for two unassembled metal farm garages and a windrower. The unsigned bill listed the value of the equipment at $5,000. On December 30, Fritz wrote appellant a check for an additional $1,500. Several months later, concerned that he had no collateral for the $1,500 and that he had received no return on his investment, Fritz asked appellant for a note to secure his investment. In response, appellant gave Fritz a signed judgment note for $6,500. The judgment note contained a typed notation which listed the two metal farm garages and windrower listed on the bill of sale as well as a second windrower. Subsequently, appellant used parts of the two unassembled garages in the construction of another building and sold the two windrowers. Appellant never repaid Fritz.

Although appellant and Fritz evidently intended to secure Fritz’s investment, neither the bill of sale nor the judgment note created an enforceable security interest. The bill of sale was not signed by appellant, see 13 Pa.C. S.A. § 9203(a)(1), and the note, although signed, did not provide for a security interest. See id. § 9105. Instead, the note was an “on demand” note which provided for confession of judgment in the amount of $6,500. Merely typing a list of items on the judgment note could not suffice to convert it from a note authorizing a money judgment to an agreement creating a security interest in those items as collateral. Because the record does not disclose the existence of a security interest, we hold that the evidence was insufficient to support appellant’s conviction for defrauding a secured creditor.

Judgment of sentence reversed. Appellant is discharged.

      . The other elements required to create an enforceable security interest are that (1) value has been given and (2) the debtor has rights in the collateral. See 13 Pa.C.S.A. § 9203(a)(2), (3). In the instant case, however, the presence of those elements is not disputed.

      . Appellant also contends that (1) the lower court erred in not defining certain terms for the jury; (2) his speedy trial rights were violated; (3) the failure to include four exhibits in the record violated his right to meaningful appellate review; and (4) his sentence was excessive. In light of our disposition of appellant’s sufficiency claim, we find it unnecessary to address his remaining contentions.


author: HOFFMAN, Judge: TAMILIA, Judge,

text:
    497 A.2d 259
    COMMONWEALTH of Pennsylvania v. James WARRICK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 6, 1985.
    Filed Aug. 16, 1985.

      Samuel Garro, Philadelphia, for appellant.
    Donna Zucker, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, TAMILIA, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order denying appellant’s pre-trial motion to quash the magistrate’s transcript on the ground that double jeopardy prevents his prosecution for escape, 18 Pa.C.S.A. § 5121(a). Appellant contends that the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions bar his trial on the escape charge because (1) all of the charges stemming from his act, i.e., his flight from a Municipal Courtroom after having been found guilty of possession of narcotics, were not consolidated at one trial and (2) he is being tried a second time for the same offense. We disagree and, accordingly, affirm the order of the court below.

On December 5, 1983, after having been found guilty of possession of narcotics before Municipal Court Judge Lipschutz, appellant fled the courtroom. He was captured a short time later and returned to Judge Lipschutz, who held him in contempt of court and sentenced him to six months imprisonment. Appellant appealed that finding and subsequently pled guilty on February 22, 1984 before Court of Common Pleas Judge Hirsh, who imposed the same sentence. In the meantime, the Commonwealth had charged appellant with escape, and, at a January 4,1984 preliminary hearing, Common Pleas Judge Merriweather held him for court. On May 29 and again on September 4, 1984, following briefing by the parties, Common Pleas Judge Cain denied appellant’s motion to quash. This appeal followed.

We believe that Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), aff'g in part and rev’g in part, 322 Pa. Superior Ct. 424, 469 A.2d 1063 (1983), is dispositive of appellant’s first contention. In Allen, our Supreme Court found that joinder of a criminal contempt charge with criminal charges was not required by either 18 Pa.C.S.A. § 110 (when prosecution barred by former prosecution for different offense) or by the “compulsory joinder rule” of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973) (Campana I), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (Campana II). Commonwealth v. Allen, supra 506 Pa. at 506-07, 486 A.2d at 366-67.

Appellant’s second contention is also meritless. As this Court noted in Allen:

Distinguishable are cases where defendants are summarily held in contempt of court. See United States v. Rollerson, 308 F.Supp. 1014 (D.D.C.1970), aff'd, 449 F.2d 1000 (D.D.Cir.1971); State v. Warren, 186 N.J.Super. 35, 451 A.2d 197 (1982); United States v. Mirra, 220 F.Supp. 361 (S.D.N.Y.1963). In summary contempt proceedings the contemnor does not suffer the harassment of separate trials and, therefore, the policies and goals underlying the protection against double jeopardy are not offended.

322 Pa. Superior Ct. at 434 n. 11, 469 A.2d at 1068 n. 11. In the instant case, because appellant was summarily held in contempt, we find that double jeopardy does not bar appellant’s subsequent trial for escape.

Affirmed.

TAMILIA, J., files a concurring opinion.

TAMILIA, Judge,

concurring:

I join in the majority’s conclusion that Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), aff'g in part and rev’g in part, 322 Pa. Super. 424, 469 A.2d 1063 (1983) disposes of appellant’s claim that the instant charges should have been consolidated.

Regarding appellant’s second contention, I concur in the result but must respectively refrain from joining the majority in its reasoning. Rather than further complicating the law on contempt by drawing a distinction between a summary proceeding and a contempt hearing for double jeopardy purposes, I would adopt the reasoning of the lower court which held that the crimes at issue involve separate statutory elements and, consequently, require the proof of separate facts. (Slip op. at 5-8) See Commonwealth v. Allen, supra, 506 Pa. at 510, 486 A.2d at 368-70. See also Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). As our nation’s

highest court stated in Ianelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975):

[T]he Court’s application of the [Blockburger] test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.

Id. at 785 n. 17, 95 S.Ct. at 1294 n. 17, 43 L.Ed.2d at 627 n. 17.

In the instant case, the crimes of contempt and escape involve different elements, and thus, even though the same conduct may provide the basis for both charges, appellant’s prosecution for escape is not barred by his conviction for contempt. Allen, supra. Finally, it should be emphasized that the purpose of the contempt charge was to protect the court’s dignity and to avoid any actual obstruction of the administration of justice, Matter of Campolongo, 495 Pa. 627, 633, 435 A.2d 581, 584 (1981); a purpose quite distinct from punishment for the crime of escape.

      . The subsection reads as follows:
      A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.

      . Allen involved a contempt hearing as opposed to a summary proceeding. Even in that case our Supreme Court held that double jeopardy was not offended where the defendant was to be tried on rape, criminal trespass, and simple assault charges following a finding of contempt. Commonwealth v. Allen, 506 Pa. at 500, 486 A.2d at 367-70. The Court stressed that ”[t]he necessity of criminal contempt as a tool for deterring abuse of the judiciary demands that a judge not be required to consider the consequences of foreclosing subsequent criminal prosecutions." Id., 506 Pa. at 513, 486 A.2d at 369, citing People v. Gray, 69 Ill. 2d 44, 12 Ill. Dec. 886, 370 N.E.2d 797 (1977) (RYAN, J., dissenting), cert. denied sub nom. Illinois v. Gray, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978). Although the Court failed to distinguish between summary proceedings and contempt hearings, it is clear that trial on criminal charges following a summary proceeding is less objectionable than where a defendant is first subject to a more full-blown adversarial hearing. Thus, even though the above citation from this Court’s decision in Allen was dicta, we adopt it as the law of this Commonwealth.

      . 42 Pa.C.S.A. § 4132 provides:
      § 4132. Attachment and summary punishment for contempts
      The power of the several courts of this Commonwealth to issue attachments and to impose summary punishments for contempts of court shall be restricted to the following cases:
      (1) The official misconduct of the officers of such courts respectively.
      (2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
      (3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

      . 18 Pa.C.S.A. § 5121 defines the crime of escape as follows:
      § 5121. Escape
      (a) Escape. — A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.