author: CAVANAUGH, Judge: WIEAND, Judge,

text:
    634 A.2d 622
    Christine MYSZKOWSKI, Appellant, v. PENN STROUD HOTEL, INC., t/a Best Western Pocono Inn, Lee Andrews, Harriet Andrews, Stroud Tavern, Good Time Saloon, John Kenneth Spahr, Kerchner Associates, Inc., Best Western International, Inc.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1993.
    Filed Nov. 30, 1993.

      Richard D. Gorski, Bethlehem, for appellant.
    Thomas J. Carroll, Philadelphia, for Penn Stroud Hotel, Inc., appellee.
    Karl R. Hildabrand, Harrisburg, for Best Western, appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order of the Court of Common Pleas of Monroe County which granted summary judgment in favor of appellee Best Western International, Inc. (“Best Western”). Appellant Christine Myszkowski filed suit against, inter alia, appellee Penn Stroud Hotel, Inc. (“Penn Stroud”) t/a Best Western Pocono Inn and Best Western after she was sexually assaulted in the ladies’ room of the Best Western Pocono Inn on the theory that the Inn had failed to provide adequate security. The main issues raised in this appeal involve two questions of agency: (1) whether Best Western had an actual agency relationship with Penn Stroud; and (2) whether Best Western had an apparent agency relationship •with Penn Stroud. Having found that summary judgment was appropriately granted by the trial court, we affirm.

Appellant, and her two partners, were hired by a campus ministry group to work as disc jockeys at a social function the group was sponsoring on the night of April 24, 1987. The group contracted with the Best Western Pocono Inn in Stroudsburg, Monroe County to use its ballroom for this event. Appellant and her associates, as they had been hired to do, showed up at the Inn on the designated night, set up and began work. At about 1:30 AM, appellant left the ballroom to use the ladies’ restroom. While there, she was attacked and sexually assaulted by John Kenneth Spahr. Appellant then initiated the present suit against, inter alia, Best Western and Penn Stroud alleging that Best Western either exercised or retained the right to control all of Penn Stroud’s operations, that they were negligent in failing to ensure that there was adequate security and that as a direct and proximate result, appellant was attacked and suffered physical and mental injuries.

Best Western is a non-profit corporation organized under the laws of Arizona and registered to do business in the Commonwealth of Pennsylvania. Penn Stroud, by virtue of a marketing agreement with Best Western, is a member of the Best Western organization which allows it to use the “Best Western” name and participate in the Best Western reservation network. Following the commencement of this suit, Best Western moved for summary judgment on the grounds that, as a matter of law, an agency relationship did not exist between itself and Penn Stroud. The trial court agreed with Best Western and entered summary judgment in their favor. This appeal followed.

Before we can address the agency issues, we must first dispose of a preliminary issue raised by appellant. It is her contention that she was severely prejudiced when the trial court entered summary judgment without giving her the opportunity to either file a brief or argue in opposition to Best Western’s motion. We have held, that when ruling on a motion, it is within the discretion of the trial court to decide whether briefs and/or oral argument are required or whether the matter can best be disposed of from a review of the record alone. Gerace v. Holmes Protection of Phila., 357 Pa.Super. 467, 475, 516 A.2d 354, 359 (1986). Here, there was an extensive record before the trial court and it was aware of the legal positions of the parties as they were afforded the opportunity to argue this motion at a pretrial conference. Having reviewed the record and considered the arguments made by the parties to this court, we fail to see how appellant was prejudiced in this case and find no abuse of discretion on the part of the trial court.

The two remaining issues raised by appellant require us to determine whether the trial court erred in ruling that, as a matter of law, neither an actual nor apparent agency relationship existed between Best Western and Penn Stroud so as to implicate Best Western of vicarious responsibility. When reviewing the grant of summary judgment, we review application of the following standard:

A motion for summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. In passing on a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party. [However], it is clear that to survive a motion for summary judgment, the non-moving party may not rely merely upon the allegations of the contested pleadings, but must set forth specific facts by way of affidavit, or in some other way as provided by the rule, demonstrating that a genuine issue exists.

Kerns v. Methodist Hospital, 393 Pa.Super. 533, 536, 574 A.2d 1068, 1069 (1990) (citations omitted). “[T]he grant of summary judgment -will only be reversed for an error of law or a clear abuse of discretion.” Carns v. Yingling, 406 Pa.Super. 279, 282, 594 A.2d 337, 339 (1991) (citation omitted).

We now focus on appellant’s second issue; whether the trial court erred in ruling that, as a matter of law, an actual agency relationship did not exist between Best Western and Penn Stroud. Appellant argues that an agency relationship existed because Best Western had the right to substantially control Penn Stroud pursuant to their marketing agreement. She maintains that Best Western concerns itself with the total operation of Penn Stroud through the workshops and programs it conducts, the rules and regulations it imposes and its ability to sanction for noncompliance with its quality standards.

We begin our analysis by recognizing that, “not every relationship of principal and agent creates vicarious responsibility in the principal for acts of the agent.” Gajkowski v. Intern. Broth. of Teamsters, Etc., 350 Pa.Super. 285, 301, 504 A.2d 840, 848 (1986), aff'd on rehearing, 519 Pa. 320, 548 A.2d 533 (1988). “A principal and agent can be in the relationship of a master and servant, or simply in the status of two independent contractors.” Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 335, 431 A.2d 1073, 1076 (1981) (citations omitted). “If a particular agent is not a servant, the principal is not considered a master who may be held vicariously liable for the negligent acts of the agent.” Id. Thus, in order for' Best Western to be held vicariously liable for the alleged negligence of Penn Stroud, the relationship between them must have been that of master and servant.

In determining whether the Best Western-Penn Stroud relationship was one of master and servant or simply that of two independent contractors, we are given guidance by our Supreme Court, which has declared:

the basic inquiry is whether such person is subject to the alleged employer’s control or right to control with respect to his physical conduct in the performance of the services for which he was engaged.... The hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of an independent contractee-contractor relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result.

Green v. Independent Oil Co., 414 Pa. 477, 483-4, 201 A.2d 207, 210 (1964) (citations omitted).

Appellant is correct insofar as she contends that the hallmark of a master-servant relationship is that the master possesses the right to control the manner in which the servant’s work shall be accomplished. However, she urges us to apply what we believe is an overly-broad conception of what constitutes “control.” Best Western does not “direct the manner in which the work is to be accomplished” simply by having a marketing agreement with Penn Stroud. “It is the element of continuous subjection to the will of the principal which distinguishes the ... agency agreement from other agreements.” Restatement (Second) of Agency, § 1(1), comment b (1957) (emphasis added). While we are unaware of any Pennsylvania case which defines, as other jurisdictions have, the inquiry for actual agency in this context, we believe that the focus of our inquiry should be whether the alleged master has day-to-day control over the manner of the alleged servant’s performance. Little v. Howard Johnson Co., 183 Mich.App. 675, 679, 455 N.W.2d 390, 393 (1990) (franchisor must have right to control day to day operations of a franchise in order to establish an agency relationship); Schweich v. Ziegler, Inc., 463 N.W.2d 722, 730 (Minn.1990); Carlton v. Alabama Dairy Queen, Inc., 529 So.2d 921, 924-5 (Ala.1988); Hunter Min. Laboratories, Inc. v. Management Assistance, Inc., 104 Nev. 568, 570, 763 P.2d 350, 352 (1988); Hayman v. Ramada Inn, Inc., 86 N.C.App. 274, 277, 357 S.E.2d 394, 397 (1987); McMullan v. Georgia Girl Fashions, Inc., 180 Ga.App. 228, 348 S.E.2d 748, 750 (1986); Herman v. Bonanza, 223 Neb. 474, 479-81, 390 N.W.2d 536, 541-2 (1986); Schear v. Motel Management Corp. of America, 61 Md.App. 670, 487 A.2d 1240, 1248-9 (1985); Ortega v. General Motors Corp., 392 So.2d 40, 42-3 (Fla.Dist.Ct.App.1981); Coty v. U.S. Slicing Machine Co., Inc., 58 Ill.App.3d 237, 241, 15 Ill.Dec. 687, 691, 373 N.E.2d 1371, 1375 (1978); Murphy v. Holiday Inn, Inc., 216 Va. 490, 495, 219 S.E.2d 874, 878 (1975).

We find additional support for the proposition that the inquiry for actual agency focuses on the day-to-day control of the purported servant’s conduct from the reasoning of the seminal case in Pennsylvania on this issue, Green v. Independent Oil Co., supra. In Green, our Supreme Court ruled that a lower court erred in submitting to a jury the relationship between Independent Oil Co. and one of its franchisee/dealers. Significant to its decision was: (1) the agreement between the parties specifically disclaimed the existence of an agency relationship; (2) all profits went to the dealer; (3) the sales tax permits and the electric bills were in the dealer’s name; (4) the dealer hired and fired his own employees and paid them; (5) all monies were kept in the dealer’s personal bank account; and (6) the dealer purchased Independent Oil Co.’s products. Green, supra, at 482-3, 201 A.2d at 210. Thus, it is our judgment that the seminal case in this area focused its inquiry on the extent to which the purported master controlled the day-to-day operations of the alleged servant. See also, Strain v. Ferroni, 405 Pa.Super. 349, 360-1, 592 A.2d 698, 705 (1991) (no agency relationships between physician and covering doctor where covering doctor free to use his own discretion, skill and knowledge in care of patient).

Here, the owners of Penn Stroud managed the day-today operations of the business and made all of the decisions incidental to this operation. The employees of the Inn were hired, fired, paid, and supervised by Penn Stroud managers. Penn Stroud managers set the prices for the various services and accommodations they provide. Best Western has no ownership interest in Penn Stroud. To the contrary, one hundred percent of the stock in Penn Stroud is owned by defendant Lee Andrews and the Inn is run by various members of the Andrews family in Stroudsburg; Best Western is only paid a fixed amount each year ($23,500) for its services. Moreover, the agreement between Best Western and Penn Stroud specifically provides that their relationship is one of independent contractor, and that Best Western has, inter alia, “no responsibility for the ... safety of the premises.” It also affords Penn Stroud the right to voluntarily end its association with Best Western at any time for any reason. For these reasons, there is clearly not the necessary control by Best Western of day-to-day operations to establish a master-servant relationship. See Green, supra.

Appellant points to incidental duties of the Best Western-Penn Stroud marketing agreement to state that a master-servant relationship may exist between the parties. Specifically, she contends that the Best Western program of quality control, its ■ corresponding rules and regulations and the programs and workshops Best Western conducts in order to achieve this goal are tantamount to control or the right to control. However, the fact that Best Western sets certain standards in order to maintain a uniform quality of inn service only addresses the result of the work and not the manner in which it is conducted. Here, it is Penn Stroud which decides the manner in which it will meet the quality criteria set by Best Western. Such an arrangement does not constitute a master-servant relationship, but rather is indicative of an independent contractor-contractee relationship as outlined in Green, supra.

Appellant also stresses the fact that if Penn Stroud failed to adhere to these quality control requirements which were checked in biannual inspections, Best Western could terminate the Inn from using its trade name. Such a sanction, however, does not indicate that there is continuous subjection to the will of the alleged master so as to constitute a master-servant relationship. See Green, supra, note 4 supra. Rather, it merely reemphasizes that Penn Stroud, which has the ability to voluntarily terminate its relationship with Best Western at any time, is an independent entity which controls its own destiny. Best Western cannot compel Penn Stroud to alter its conduct. It merely has the ability to either terminate its relationship with Penn Stroud or threaten to terminate it. We conclude that this type of marketing arrangement simply does not evidence the type of day-to-day control over the manner of performance which would establish a master-servant relationship.

We find particularly persuasive the decision in Sckear, supra, where the Maryland court addressed a fact pattern similar to the present one. In Sckear, the plaintiffs had certain valuable items stolen from their room while in the Holiday Inn at Chevy Chase, Maryland. The Hotel was not owned by Holiday Inn. The Holiday Inns, Incorporated, (“Holiday”) granted a franchise to Chevy Chase Motel Associates (“Associates”). Associates, in turn, contracted with Motel Management Corporation of America (“Management”) to operate and manage the hotel. The court found that control by Holiday was “totally lacking,” noting that general oversight does not constitute “control” under the law:

The control element was totally lacking in this case. The management and operation of the Chevy Chase Holiday Inn were vested entirely in Associates, which in turn contracted with Management, Craig’s employer, to manage the running of the hotel. Although Holiday retained the right to conduct periodic inspections as a means of insuring adherence to Holiday Inn standards, it took no part in the day-to-day operation of the hotel. Associates merely purchased a product from Holiday — a uniform system of inn service— that carried with it an obligation to maintain certain standards prescribed by the seller. But “the fact that one of the parties has subsidiary duties to act for the interests of another, as where a purchaser of goods from a manufacturer agrees that he will advance the interests of the manufacturer in certain respects, does not create an agency relation with respect to the sale.” Restatement (Second) of Agency § 13, comment c (1958). The right possessed by Holiday to insure compliance with its franchise standards constitutes no more than the right to enforce such a subsidiary duty.

Schear, supra, at 688, 487 A.2d at 1249.

A situation with almost identical facts as the case at bar was presented in Hayman, supra. In Hayman, a woman was assaulted on the premises of a Ramada Inn in Winston-Salem, North Carolina. She sued, inter alia, Ramada Inn Inc., asserting that it was vicariously liable for the alleged negligence of its franchise. In affirming the grant of summary judgment, the court declared:

Having carefully reviewed the Licensee Agreement between defendant and [the Inn’s owner], we find no evidence that defendant retained or exercised the kind of detailed control over the daily operation of the Akron Drive Ramada Inn that would establish a principal-agent relationship. The general purpose of the contract is the maintenance of uniform service within, and public good toward, the Ramada Inn system. Otherwise, [the Inn’s owner] operates the facility on its own behalf. The agreement primarily requires [the Inn’s owner] to comply with certain standards in the construction, furnishing, and advertising of the facility. Apart from the imposition upon [the Inn’s owner] to maintain its accommodations “in a clean, attractive, safe and orderly manner,” the twenty-page contract imposes no standards nor makes any other provision with respect to security of the premises. Under the agreement, defendant neither retained authority over, nor established standards for, hiring, firing, supervision, or discipline of personnel or myriad other details of the day-to-day operation. Moreover, although defendant has retained the right to conduct regular inspections of the accommodations to insure compliance with the contract and rules of operation, defendant’s actual control is limited to a right to terminate the franchise agreement and collect damages for any noncompliance [by the Inn’s owner]. Under these circumstances, we conclude that no actual agency relationship existed that would justify holding defendant responsible for [the Inn’s owner’s] security arrangement.

Hayman, supra, at 277, 357 S.E.2d at 397.

Similarly, for the reasons articulated supra, Best Western did no more than enter into a marketing agreement with Penn Stroud. The nature of this marketing agreement is that Best Western, in exchange for a fixed payment each year ($23,500) and adherence to certain rules concerning the quality of the accommodations, provides Penn Stroud with the right to use its trade name. This is not a master-servant relationship. It is clear from the record that Penn Stroud owned and operated the Inn and had full, day-to-day control, while the most significant “control” Best Western possessed was a threat to take away the use of its trade name. As such, Best Western did not have the necessary control over Penn Stroud to establish the existence of a master-servant relationship; consequently, Best Western cannot be held vicariously liable for the alleged negligence of Penn Stroud under an actual agency theory.

The final issue raised for our consideration is whether the trial court erred in ruling that, as a matter of law, an apparent agency relationship did not exist between Best Western and Penn Stroud. Appellant contends that Best Western held itself out as the owner/operator of Penn Stroud, that she relied on this representation and therefore, Best Western could be held vicariously liable for the negligent acts and/or omissions of Penn Stroud.

Both appellant and Best Western refer our attention to the Restatement (Second) of Agency, § 267 (1975), which outlines the rule of apparent or ostensible agency. Appellant also offers, in support of her position, caselaw which relies on the doctrine of apparent authority. Our review of the relevant ■ caselaw, however, leads us to conclude that while Pennsylvania recognizes the closely related agency doctrines of apparent authority and agency by estoppel, our Commonwealth has not formally adopted § 267 of the Restatement. In Juarbe, supra, we stated that a principal may be liable to another for the acts of an agent on the grounds of apparent authority or agency by estoppel. Id. 288 Pa.Super. at 342, 431 A.2d at 1079. We explained these two agency theories as follows:

Agency by estoppel is defined by section 8B. of the Restatement (Second) of Agency and the doctrine has been embraced by this court:... [We have] emphasized two basic elements of agency by estoppel: (1) there must be negligence on the part of the principal in failing to correct the belief of the third party concerning the agent; and (2) there must be justifiable reliance by the third party.... Agency by estoppel is generally deemed to be closely related to apparent authority. Thus, alternatively stated, a principal who clothes his agent with apparent authority is estopped to deny such authority.

Juarbe, supra, quoting Turnway Corporation v. Soffer, 461 Pa. 447, 457, 336 A.2d 871, 876 (1975) (citations omitted) (emphasis added).

In the present case, the doctrine of apparent authority is simply not applicable. Both apparent authority and agency by estoppel are “customarily [only] relevant in the context of business transactions.” Juarbe, supra. Here, the claim is one in tort for the alleged negligence which resulted in the sexual assault of appellant. Under the facts of this case, we fail to see how appellant can be said to have relied upon the apparent authority of Penn Stroud to avoid being the victim of this random act of violence. Our review of the record indicates that appellant has presented no evidence which even remotely supports her allegation that she relied upon the fact that Penn Stroud represented Best Western, as its agent, on the night she was sexually assaulted. As explained supra, appellant was hired by a third party, a campus ministry group, wholly unrelated to either Best Western or Penn Stroud, to work as a disc jockey on the night of April 24, 1987 at the Best Western Pocono Inn. Appellant neither contracted nor negotiated with Best Western or Penn Stroud; the ministry group specified to appellant where the function was to take place. She simply agreed to show up at the designated place, on the designated night and play music for a social function sponsored by the ministry group. Our review of the record not only indicates that she did not rely on the fact that the designated place carried the name “Best Western,” but that it appears she would have performed the service she had contracted to at most any location the campus ministry group had designated. Thus, Best Western cannot be held vicariously liable for the alleged negligence of Penn Stroud under the theory of apparent authority.

We conclude, therefore, that as a matter of law, a master-servant relation did not exist between Best Western and Penn Stroud nor was Penn Stroud clothed with apparent authority under the facts of this case so as to render Best Western vicariously liable for Penn Stroud’s alleged negligence. Accordingly, we affirm the order of the trial court granting summary judgment in favor of Best Western.

Order affirmed. Jurisdiction relinquished.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

Although the majority has carefully reviewed the facts of this case, I am of the opinion that such facts do not unerringly lead to the conclusion that the relationship between Best Western International, Inc. and Penn Stroud Hotel, Inc. was that of owner and independent contractor. On the contrary, there is present here an issue of fact for a jury to determine. That issue is whether Best Western International, Inc. reserved a sufficient right of control over the manner in which Penn Stroud Hotel, Inc. operated the Best Western Pocono Inn to give rise to a master and servant relationship and render Best Western International, Inc. vicariously liable for the negligence, if any, .of Penn Stroud Hotel, Inc. in the operation of the Best Western Pocono Inn. Therefore, I respectfully dissent from the majority’s decision to affirm the trial court’s entry of summary judgment in favor of Best Western International, Inc.

Christine Myszkowski was sexually assaulted while using the ladies’ restroom at the Best Western Pocono Inn, in Stroudsburg, Monroe County. She filed suit against Penn Stroud Hotel, Inc., which owned the inn, and also against Best Western International, Inc., on grounds that inadequate security had been provided. The trial court entered summary judgment in favor of Best Western, and Myszkowski appealed.

On April 25,1987, Myszkowski was working as a disc jockey at a social function being conducted at the inn by a local college ministry group. The campus organization had leased a banquet room at the inn and had independently hired Myszkowski and her partner to provide music and entertainment. During the course of the evening, Myszkowski had occasion to use the ladies’ restroom, where she was surprised and assaulted by John Kenneth Spahr.

In 1980 or 1981, Penn Stroud Hotel was approved as a member of the Best Western organization. This enabled the hotel to use the “Best Western” name for advertising and promotional purposes and to participate in the Best Western reservation network. Best Western, a non-profit corporation organized under the laws of Arizona and registered to do business in the Commonwealth of Pennsylvania, contends that it does not control the operation of Penn Stroud’s hotel business. It describes itself as a “marketing organization which benefits its member properties through the use of a cooperative reservation system, joint advertising, volume discounts, quality assurance standards, and other income generating services.” It denies that there is a franchisor-franchisee relationship.

In her complaint, Myszkowski alleged that Best Western had been negligent for failing to require better security and was vicariously liable for Penn Stroud’s failure to provide adequate security. Best Western denied these claims and moved for the entry of summary judgment.

A motion for summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the nonmoving party and resolve all doubts against the moving party. Mariscotti v. Tinari, 335 Pa.Super. 599, 601, 485 A.2d 56, 57 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984). “It is not the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried.” Id. at 141, 476 A.2d at 931.

Although an employer may be liable for negligent acts of his or her servants or employees, there is no vicarious liability for harm caused by independent contractors. Lutz v. Cybularz, 414 Pa.Super. 579, 583, 607 A.2d 1089, 1091 (1992). See: Hader v. Coplay Cement Manufacturing Co., 410 Pa. 139, 189 A.2d 271 (1963).

‘The hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of an independent eontractee-contractor relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result.’

George v. Nemeth, 426 Pa. 551, 553-554, 233 A.2d 231, 232 (1967), quoting Green v. Independent Oil Co., 414 Pa. 477, 484, 201 A.2d 207, 210 (1964). See also: Moon Area School District v. Garzony, 522 Pa. 178, 560 A.2d 1361 (1989). Broadly stated, if the agent is under the control of the employer, he is a servant; if he is not under such control, he is an independent contractor. Feller v. New Amsterdam Casualty Co., 363 Pa. 483, 486, 70 A.2d 299, 300 (1950). The actual control exercised by an employer over the manner of work, however, is not determinative of the relationship; rather, it is the employer’s right or authority to control which renders one an employee or servant and not an independent contractor. See: Lutz v. Cybularz, supra 414 Pa.Super. at 583, 607 A.2d at 1091. “It is the exclusive function of the jury to determine, from the evidence, the precise nature of the relationship, except where the facts are not in dispute, in which latter event the question becomes one for determination by the court.” Melmed v. Motts, 341 Pa.Super. 427, 430-431, 491 A.2d 892, 893 (1985) (citations omitted).

In Drexel v. Union Prescription Centers, Inc., 428 F.Supp. 663 (E.D.Pa.1977), decedent’s wife brought a claim against Union Prescription Centers, Inc. (UPC) to recover for the injuries and resulting death of her decedent, all of which had occurred as a result of an improperly filled prescription. UPC moved for summary judgment, averring that it owed no duty to the plaintiff because the drugstore was an independent contractor and UPC was not the “owner, operator, possessor or in control” of the drugstore at the time of the alleged negligence. The district court granted the motion and entered summary judgment in favor of UPC. On appeal, the Third Circuit Court of Appeals reversed. It held that it could not be determined as a matter of law that UPC did not have the right to control the operations of the drugstore. See: Drexel v. Union Prescription Centers, Inc., 582 F.2d 781 (3d Cir.1978). In reaching this conclusion, the court observed that although the parties’ franchise agreement denied the existence of an agency relationship, this was not in itself determinative of the relationship. Id. at 786. Accord: George v. Nemeth, supra 426 Pa. at 554, 233 A.2d at 233. Moreover, although there was no evidence that UPC had exercised actual control over the manner in which the drugstore operated, the parties’ agreement contained many provisions according UPC the right to do so. The agreement required that the franchisee operate under the name of UPC, grant UPC the right of inspection, remain open for business a minimum number of hours per week, maintain the exterior and interior of the premises in UPC’s standard colors, purchase and maintain specific types of insurance policies and name UPC as an insured, utilize insignia, equipment, decals, uniforms and colors required by UPC, and operate “as part of a national organization securing its strength through adherence to UPC’s uniformly high standards of service, appearance, quality of equipment and proved methods of operation.” UPC had the right to terminate the relationship if the franchisee breached any provision of the parties’ agreement. Because “reasonable minds could differ as to whether or not UPC had the right to control [the franchisee’s] physical conduct and the manner in which he operated the store,” the Court held that a genuine issue of fact remained to be decided. Drexel v. Union Prescription Centers, Inc., supra, 582 F.2d at 789.

Similarly, in Drummond v. Hilton Hotel Corp., 501 F.Supp. 29 (E.D.Pa.1980), Verna Drummond brought an action against the Hilton Hotel Corporation (Hilton) to recover damages for injuries which she had sustained in a fall in a Hilton Inn (Inn). Hilton moved for summary judgment, averring that it did not own, maintain, control or operate the Inn and that an agreement between Hilton and the Inn specifically disavowed any agency relationship. The agreement did provide, however, that Hilton had the right to consult with the owners of the Inn and the right to inspect the hotel to maintain the standards of the Hilton system. The agreement also required that the Hilton name be used in all advertising and promotional material. Relying on Drexel, supra, the court denied the motion for summary judgment, reserving the issue of Hilton’s right to control the hotel’s operations for determination by a jury. Id. 501 F.Supp. at 31. See also: Clem v. Steveco, Inc., 450 N.E.2d 550 (Ind.App.1983); Chargois v. Trip-L-Quik, 441 So.2d 45 (La.App.1983); Billops v. Magness Construction Co., 391 A.2d 196 (Del.1978); Singleton v. International Dairy Queen, Inc., 332 A.2d 160 (Del.Super.Ct.1975). But see contra: Ortega v. General Motors Corp., 392 So.2d 40 (Fla.App. 1980); Murphy v. Holiday Inns, Inc., 216 Va. 490, 219 S.E.2d 874 (1975).

In the instant case, the owners of the Pocono Inn managed the day-to-day business of the inn and made the decisions incidental thereto. They recruited and paid hotel personnel, maintained the property, and provided for security, accounting and supervisory services. The hotel’s agreement with Best Western disavowed any agency relationship and provided that the Penn Stroud Hotel should be an independent contractor. It provided, specifically, as follows:

Applicant [Penn Stroud Hotel] acknowledges that the relationship of Best Western to its members is one of independent contractor, that neither party to this Agreement has the power to obligate or bind the other in any way, and that no relationship of partners, joint venturers or agents is created by this Application and Agreement. It is understood that Best Western has no responsibility for the use, condition or operation of the subject property, no control of or responsibility for the safety of the premises or the safety of the design of any structure or product, and that Best Western has no control over or responsibility for any decision affecting the employment or supervision of any person employed in connection with the subject property.

On the other hand, all members of the Best Western organization were subject to a quality control biannual inspection, as a result of which the members were scored according to the conditions of their properties and the amenities provided. The failure to obtain a minimum score, pre-determined by Best Western, could result in sanctions ranging from probation to termination of membership. Even where sanctions were not imposed, members were obligated to correct, replace, repair or renovate those areas where repairs or renovations were deemed necessary by Best Western. Rules and regulations applicable to members required that they incorporate the Best Western name and logo into all property signage and that the telephone be answered by using the words, “Best Western.” Other regulations pertained to the keeping of the grounds, the attire of and utensils used by maids, and the furnishing of rooms. From all of this it would appear that Best Western may well have reserved some right of control over the manner in which the Pocono Inn was operated by its owners.

Under the circumstances of this case, therefore, it cannot be determined as a matter of law that a master-servant relationship did not exist between the parties. Whether Best Western reserved a right to control the manner in which the Pocono Inn was operated by Penn Stroud Hotel, Inc., so as to render Best Western vicariously liable for the inn’s negligence, if any, is a question which must be decided by a jury.

I would reverse and remand for further proceedings.

      . Spahr was sentenced to a term of imprisonment following his conviction on charges stemming from this attack.

      . Appellant also contends that only part of the record certified to this court was before the trial court when it ruled on Best Western’s summary judgment motion because she was not given the opportunity to submit to the trial court, the admissions, depositions and an affidavit upon which she based her argument in opposition to this motion. Appellant, however, does not specifically point out what documents in the certified record were allegedly not before the trial court and our review of the original record indicates that all of the documents, depositions, interrogatories and admissions contained therein were, in fact, filed with the lower court long before summary judgment was entered.
      Appellant has made this argument in the most general terms, but from what we have been able to glean from her brief, the original record and the reproduced record, it appears that what has occurred is that appellant has included in the reproduced record documents which were never before the trial court and were never docketed below and made a part of the original record. At page 24 of appellant’s brief, reference is made to page 249a of the reproduced record which is an affidavit sworn out by appellant. Our review indicates that this affidavit is not part of the original record. See Pa.R.A.P., Rule 1921, 42 Pa.C.S.A. (only those documents filed in the lower court are properly a part of the record on appeal). We also note that the affidavit was not attached to appellant’s motion to reconsider the entry of summary judgment. Furthermore, while appellant maintains that her argument in opposition to summary judgment relied heavily on this affidavit, it is clear that it was not attested to until November 2, 1992, which was nearly five months after summary judgment was entered. As such, appellant’s argument is without merit and we will only review those materials contained in the original record in our disposition of the issues raised by appellant. See note 10, infra, for further reference to this affidavit.

      . While Pennsylvania courts have drawn an important distinction between the relationships of principal and agent and master and servant, some jurisdictions do not recognize this differentiation and use these terms interchangeably. Several cases from other jurisdictions, cited infra, which we have made reference to in our disposition of appellant’s actual agency issue, use the terms principal-agent and master-servant interchangeably. We note that for the purposes of our analysis, these other courts’ use of the more generic terms principal and agent, implicate the more specific legal concept of master and servant as they are defined in Pennsylvania. Additionally, we point out that “actual agency” refers specifically to a master-servant relationship and not the more general principal-agent relationship.

      . We also note, that similar to the present agreement, there was a contract provision which stated that Independent Oil Co. could terminate the relationship if the dealer failed to uphold his part of the agreement. Id., 414 Pa. at 485, 201 A.2d at 211. The court did not find this fact dispositive of a master-servant relationship. Id.

      . All contracts contain respective rights and obligations. In many contracts, one party’s duties often outweigh the corresponding duties of the other; Notwithstanding, the presence of these rights and duties does not necessarily create the existence of a master-servant relationship.

      . Appellant relies principally on two federal cases which purport to attempt to predict Pennsylvania law in this area, Drexel v. Union Prescription Centers, Inc., 582 F.2d 781 (3rd Cir.1978) and Drummond v. Hilton Hotel Corp., 501 F.Supp. 29 (E.D.Pa.1980). The former case does not speak to our fact scenario, having had to deal with a franchise agreement which was so broadly drawn that it gave the franchisor such broad discretionary power as to be able to impose on the franchisee virtually any measure it deemed warranted. Drexel, supra, 582 F.2d at 789. Accordingly, we do not find it analogous to the case sub judice, as the respective rights and duties in the contract at issue herein, clearly indicate that Best Western does not control Penn Stroud’s business conduct.
      In the latter case, the Drummond court denied the franchisor’s motion for summary judgment based on the following facts: (1) the franchisee was required to use the franchisor’s name in all advertising and promotion; (2) the right of the franchisor to consult with the franchisee hotel on operating problems; (3) the right of the franchisor to inspect the franchisee hotel to maintain its standards of quality; and (4) the fact that an express denial of an agency relationship is not of itself determinative of the existence of such a relationship. Drummond, supra, at 31. We believe this analysis to be erroneous. Without more, these factors do not indicate that the franchisor had the right to control the day-to-day operations of the franchisee. At most, these factors only speak to the franchisor’s desired result, which is the maintenance of a uniform level of quality in its franchisees. None of the factors cited by the Drummond court directly concerns the manner in which the franchisee must meet this result. Thus, the presence of these factors alone, does not give rise to a genuine issue of material fact with respect to the right to control the day-to-day operations of the franchisee. Because we believe the reasoning of Drummond is flawed, we do not find it persuasive in our resolution of appellant’s actual agency issue.

      . § 267 of the Restatement (Second) of Agency states:

        One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.

      . We note, however, that apparent or ostensible agency, as embodied in § 267, is substantially similar to the doctrines of apparent authority and agency by estoppel. Capan v. Divine Providence Hospital, 287 Pa.Super. 364, 369 n. 4, 430 A.2d 647, 649 n. 4 (1980).

      . In Juarbe, plaintifh'appellant brought a negligence action against Exxon Company and an Exxon service station after she had slipped and fallen on an accumulation of petroleum products present on the sidewalk of the service station, claiming that as a result of this fall she gave premature birth to her child, who subsequently died as a result of causes associated with this premature birth. With regard to Exxon Company’s liability under the doctrines of apparent authority and agency by estoppel, we affirmed the trial court's entry of summary judgment on this issue, reasoning that these doctrines are customarily relevant in the context of business transactions and had no application under the facts presented. Juarbe, supra. See Gajkowski, supra, 350 Pa.Super. at 304, 504 A.2d at 850 (doctrine of apparent authority customarily applicable in contract liability settings when there is reliance on the agent's authority).

      . As noted supra, appellant has submitted an affidavit to this court which is not a part of the original record. Although we have held that we will not consider it in disposing of the issues appellant has raised, we believe it warrants one further comment. The affidavit reads, in pertinent part:

        At all times I was under the belief that I was to be working at a hotel owned and operated by Best Western, a nationwide chain of hotels, /s/ Christine Myszkowski
      Appellant offers this affidavit in order to show that she relied on the fact that the hotel carried the name Best Western. However, all that her statement indicates is that she was aware that the place she would be working was a Best Western. It does not, in any way or to any degree, indicate that she relied on the Best Western name in choosing to work there so as to create a genuine issue of material fact which would defeat the motion for summary judgment. Thus, even if we were to consider appellant’s affidavit in our disposition of her claim of apparent agency, it would not affect our resolution of this issue.

      . Spahr was subsequently convicted criminally for his conduct and was sentenced to serve a term of imprisonment in a state correctional institution.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    634 A.2d 633
    COMMONWEALTH of Pennsylvania v. Brenda LEWIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 20, 1993.
    Filed Dec. 2, 1993.

      James E. Mugford, Sr., Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, JOHNSON and CERCONE, JJ.
   DEL SOLE, Judge:

Appellant, Brenda Lewis, appeals from the trial court’s denial of her P.C.R.A. petition without a hearing. Finding no abuse of discretion or error of law by the trial court, we affirm.

On the evening of July 13, 1988, Appellant approached her neighbor, Julia Whitmore, who was sitting on the steps of a Philadelphia home talking to her friends. Appellant told the others to leave, then produced a handgun and shot Ms. Whitmore in her arm and her leg. Ms. Whitmore was rushed to the hospital, where she underwent surgery. Appellant was apprehended and charged with aggravated assault, simple assault, reckless endangerment and violations of the Uniform Firearms Act. Appellant was released on bail.

On November 4, 1989, while awaiting trial for the shooting of Ms. Whitmore, Appellant had an argument with her niece, Yolanda Linder. Appellant again produced a handgun and shot Ms. Linder in the stomach and legs. Ms. Linder was rushed to the hospital and treated for her injuries. Appellant then fled to San Diego, California, but was subsequently extradited to Philadelphia and charged with aggravated assault, simple assault, reckless endangerment, terroristic threats and violations of the Uniform Firearms Act.

On October 16, 1990, Appellant appeared before the trial court and indicated that she wished to consolidate the two cases for disposition by guilty plea pursuant to Pa.R.Crim.P. 1402. Appellant, represented by two attorneys, then entered open guilty pleas to two counts of aggravated assault in the first degree. The remaining charges were nolle prossed. Appellant was sentenced to concurrent terms of seven to twenty years imprisonment for each conviction. Thereafter, Appellant did not file a motion to withdraw the plea, a petition to modify her sentence, or a direct appeal.

Instead, Appellant filed a pro se P.C.R.A. petition for collateral relief. Counsel was appointed to represent her, and the Commonwealth moved to dismiss the petition. Following oral argument, the P.C.R.A. court denied Appellant’s request for an evidentiary hearing and then denied Appellant’s P.C.R.A. petition. This appeal ensued.

Appellant asserts that the P.C.R.A. court erred in denying her petition for relief under the Post Conviction Relief Act. She claims that her guilty pleas were not voluntary, because she did not understand the nature of the proceedings and because she was misinformed by counsel regarding the consequences of her pleas. Appellant also claims that counsel was ineffective for failing to adequately advise and inform her of the consequences of entering the open guilty pleas and for failing to file motions to withdraw the pleas, motions for reconsideration of sentence and a direct appeal, as requested by Appellant’s husband and mother.

Initially, we note that it is not error for a P.C.R.A. court to deny a petitioner’s request for an evidentiary hearing where the supporting factual allegations are either patently frivolous or without a trace of support in the record or from other evidence submitted by the petitioner. Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983). On appeal, this court will not disturb the factual findings of the P.C.R.A. court when those findings are supported by the record. Commonwealth v. Vesay, 318 Pa.Super. 320, 464 A.2d 1363 (1983).

In the instant case, the evidence on the record belies Appellant’s claim regarding the voluntariness of her pleas. To be constitutionally valid, a guilty plea must have been made knowingly, voluntarily and intelligently, with an understanding of the nature of the charges, the right to a jury trial and an awareness of the consequences of the plea. Commonwealth v. Khorey, 521 Pa. 1, 4, 555 A.2d 100, 104, quoting Commonwealth v. Enty, 442 Pa. 39, 40, 271 A.2d 926, 927 (1971). Where the record clearly demonstrates that a guilty plea colloquy was conducted, during which it became evident that the defendant understood the nature of the charges against him, the voluntariness of the plea is established. Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). The record in the instant case clearly shows that Appellant, at the time she entered her plea, was a forty-one year-old high school graduate who had been employed as an x-ray technician for twenty years. She had no history of mental illness and denied being under the influence of drugs or alcohol. The trial court advised her of her right to a jury trial, and she was also informed of the nature of the charges and the range of possible sentences. The trial court then informed her that by electing to enter a guilty plea, she was giving up her right to a trial by jury, to present witnesses and evidence, and to testify on her own behalf, and Appellant indicated that she understood that she was waiving her right to trial and still wished to plead guilty.

Appellant cannot now claim that what she asserted during her colloquy, i.e. that her guilty pleas were entered voluntarily, was false and that she is thereby entitled P.C.R.A. relief. Commonwealth v. Mitchell, 319 Pa.Super. 170, 465 A.2d 1284 (1983). Indeed, in Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976), we affirmed the denial of P.C.H.A. relief without a hearing. In that case, it was alleged that the defendant was promised sentences at variance with the stated sentence in the colloquy. We stated:

A criminal defendant who elects to plead guilty has a duty to answer questions truthfully. We can not permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel.

Id. at 247, 363 A.2d at 1253.

Accordingly, Appellant’s claim regarding the voluntariness of her plea is meritless.

Appellant’s second contention involves various allegations concerning the effectiveness of counsel. The threshold inquiry for evaluating claims of ineffective assistance is whether the issue, argument or tactic which counsel has foregone is of arguable merit. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). If the argument is of merit, the next inquiry is whether counsel’s chosen course of action was designed to effectuate his client’s best interests. Upon proof that counsel had some reasonable basis for pursuing the chosen course, the inquiry ends and counsel is presumed effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). If a reasonable basis is lacking, the defendant must demonstrate that counsel’s actions worked to his prejudice. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The defendant must show that but for counsel’s challenged strategy, there is a reasonable probability that the result would have been more favorable to the defendant. Commonwealth v. Wells, 396 Pa.Super. 70, 578 A.2d 27 (1990). Furthermore, allegations of ineffectiveness of counsel in connection with a guilty plea will provide a basis for relief only if the ineffectiveness caused an involuntary or unknowing plea. Commonwealth v. Owens, 321 Pa.Super. 122, 130, 467 A.2d 1159, 1163 (1983), citing Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978), cert. den., 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979); Commonwealth v. Flood, 426 Pa.Super. 555, 627 A.2d 1193, 1198-99 (1993).

In the instant case, Appellant’s assertions that her counsel did not inform her of the nature and effect of her guilty pleas are contradicted by the record. Furthermore, as we have discussed above, Appellant’s initial contention regarding the voluntariness of her plea is meritless, and therefore, counsel cannot be deemed ineffective in regard to Appellant’s entry of her guilty pleas.

Appellant also claims that counsel was ineffective for failing to file motions to withdraw the pleas, for failing to file a motion for reconsideration and modification of sentence, and for failing to file a direct appeal on the voluntariness issue when Appellant’s mother and husband had requested that counsel do so.

In regard to counsel’s failure to file a motion to withdraw Appellant’s guilty pleas, we note that because Appellant’s pleas were entered knowingly, intelligently and voluntarily, this claim is meritless, and counsel cannot be deemed ineffective for failing to raise a baseless claim. Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).

Appellant’s claim that counsel was ineffective for failing to file a motion for reconsideration and modification of sentence is a challenge to the discretionary aspects of sentence; therefore, it is not cognizable under P.C.R.A. The only sentencing issue subject to P.C.R.A. review is whether the sentences imposed were greater than the lawful maximum. Commonwealth v. Grier, 410 Pa.Super. 284, 599 A.2d 993 (1991), appeal denied, 530 Pa. 639, 607 A.2d 250 (1992); Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990); 42 Pa.C.S.A. § 9543(a)(2)(vii). Thus, this claim is also meritless.

In regard to Appellant’s final contention that counsel should have filed a direct appeal, we again note that all the issues upon which Appellant asserts she is entitled to relief are meritless. Appellant’s pleas were entered voluntarily; counsel informed Appellant of the consequences of the entry of the pleas; and the sentences imposed were entirely reasonable in light of the nature of Appellant’s offenses. Thus, any direct appeal to this court would have been merit-less and frivolous. Counsel is not ineffective for failing to file a frivolous appeal which would have been dismissed by this court. Commonwealth v. Iseley, 419 Pa.Super. 364, 615 A.2d 408 (1992). Accordingly, we affirm the trial court order denying P.C.R.A. relief without a hearing.

Order affirmed.


author: JOHNSON, Judge:

text:
    634 A.2d 637
    COMMONWEALTH of Pennsylvania v. Gregory Lee JORDAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 23, 1993.
    Filed Nov. 23, 1993.

      John F. Marshall, New Bethlehem, for appellant.
    William M. Kern, Dist. Atty., Clarion, for Com., appellee.
    Before CIRILLO, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

On this appeal, we are asked to permit the withdrawal of counsel in a probation revocation matter based upon counsel’s assertion in his petition to withdraw that the appeal is wholly frivolous. On our review of the Brief for Appellant, we determine that the appeal is not completely frivolous and that the brief submitted on behalf of the appellant is, in fact, an advocate’s brief. Accordingly, we deny the petition for leave to withdraw, while affirming judgment of sentence following our independent review of the entire record and the issues raised in the brief.

In 1991, Gregory Lee Jordan was permitted to withdraw his guilty plea on four different informations on which he had been charged. In 1986, Jordan had pled guilty at 163 C.R. 1986 to escape, and at 178 C.R. 1986 to receiving stolen property. In 1988, Jordan had pled guilty at 13 C.R.1988 to implements of escape and at 126 C.R. 1988 to attempted escape. Following the withdrawal of his pleas to those four informations, the Honorable Charles R. Alexander, P.J., accepted new guilty pleas resulting from a negotiated agreement with the Commonwealth. Judge Alexander then sentenced Jordan to serve concurrent periods of five years’ probation on each case.

Two months later, a probation revocation hearing was held, based upon Jordan’s alleged violation of probation occurring one month after his resentencing. Judge Alexander found that Jordan had violated the terms of his probation and, ultimately, on January 27, 1993, re-sentenced Jordan so as to return him to the status quo as of July 9, 1991, before Jordan withdrew his original guilty pleas. This resulted in Jordan being reinstated to his original sentences, with applicable credit for time served. On May 5, 1993, this Court, on its own motion, consolidated the appeals at Nos. 578, 579, 582 and 583 Pittsburgh 1993, which involve these four judgments of sentence.

Not involved in this decision are two separate appeals at Nos. 580 and 581 Pittsburgh 1993, which are being separately decided.

Jordan filed a timely notice of appeal on February 26, 1993 and was granted the right to proceed in forma pauperis. Counsel for Jordan filed what counsel has styled an “Anders Brief’ and requested permission to withdraw. Simultaneous with the filing of the Brief for Appellant, counsel filed a separate Petition for Leave to Withdraw in which counsel averred, in paragraph 7, that “counsel has determined that an appeal would be frivolous.”

To withdraw under Anders, appointed counsel must comport with the requirements established by our Supreme Court in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) and its progeny. Accordingly, counsel must: (1) petition the court for leave to withdraw; (2) state that a conscientious review of the record has been conducted and completed, and that the appeal is wholly frivolous; (3) file a brief with the court setting forth any arguable issues of record including issues the appellant wishes to have reviewed; and (4) send a copy of the brief to appellant along with a letter informing him of his right to retain new counsel, proceed pro se, or raise any additional points that he deems worthy of the court’s attention. Id.; see also Thorton v. Pennsylvania Board of Probation and Parole, 525 Pa. 180, 578 A.2d 1289 (1990); Smith v. Pennsylvania Board of Probation and Parole, 524 Pa. 500, 574 A.2d 558 (1990).

As initially filed, counsel’s petition for leave to withdraw did not contain the required certification that counsel had notified Jordan of his right to file his own brief or to retain other counsel. On July 26,1993, counsel filed a verification with this Court which included a copy of a letter sent to Jordan, informing him of his rights. Counsel has complied with the requirements of both Anders and McClendon.

However, we have reviewed the Brief for Appellant filed with this Court on June 11, 1993, and we conclude that it is not, in fact, an Anders brief. To the contrary, the Brief sets forth three issues which could not be termed frivolous by this Court. Jordan, through his counsel asks the following questions for decision:

1. Whether the Commonwealth sufficiently proved that Jordan was afforded a preliminary hearing, or its equivalent, in regard to an alleged probation violation.
2. Whether the Commonwealth sustained its burden of proof that probation was not a viable means of rehabilitating and deterring future anti-social conduct.
3. Whether the Court erred when it failed to make a specific factual finding at the time of sentencing that probation was not a viable means of rehabilitating and deterring future anti-social conduct.

The review on appeal from judgment of sentence imposed following revocation of probation is limited to the validity of the revocation proceedings and the legality of the final judgment of sentence. Commonwealth v. Beasley, 391 Pa.Super. 287, 288, 570 A.2d 1336, 1337 (1990). Here, we must determine the validity of the revocation proceedings.

Jordan first contends that the Commonwealth failed to prove, or offer proof, that he had been offered a preliminary hearing in regard to the probation violation, as required by Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). After our careful review of the record, we find this contention to be without merit.

In Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975), this Court set forth five separate situations which may arise in examining the Pennsylvania practice following Gagnon v. Scarpelli. We there said:

The second situation is that of a petitioner who, before the probation revocation hearing, has been arrested and after a preliminary hearing pursuant to Pa.R.Crim.P. 120 has been held for indictment and trial in the Court of Common Pleas. Neither is there in this situation any need for a Gagnon I [preliminary probation revocation] hearing. The purpose of that hearing will have been served by the preliminary hearing.

Id. at 43, 336 A.2d at 622-23. At the Gagnon II probation revocation hearing held September 6, 1991, Officer Brett Maxwell of the Clarion Borough Police Department testified, inter alia, that Jordan was arrested on August 6,1991, that he was taken to the Clarion Borough Police Station, that he was charged, by Officer Maxwell, on August 6, 1991, with criminal attempt to commit burglary and criminal attempt to commit criminal trespass, and that a preliminary hearing was held on those charges on August 20, 1991, and that Jordan was bound over for court on those charges. Transcript of Proceedings, September 6, 1991, at 30, 37-38, 39.

Thus, inasmuch as Jordan had notice of the alleged violations by virtue of his arrest and preliminary proceedings on the underlying criminal charges, the purpose of the Gag-non I hearing was clearly served. Davis, supra. The preliminary hearing prompted by the commission of a new crime may substitute for a Gagnon I hearing. Commonwealth v. Del Conte, 277 Pa.Super. 296, 298 n. 2, 419 A.2d 780, 781 n. 2 (1980) (citing cases). Jordan’s first issue is without merit.

With respect to Jordan’s second issue, we note that Jordan had been afforded the opportunity to withdraw his original guilty pleas and was permitted to again plead guilty being subject to only five year’s probation. Within less than thirty days — from his sentencing on July 9, 1991, to his rearrest on new criminal charges on August 6, 1991 — Jordan had, himself, demonstrated that probation was not a viable means of rehabilitating the defendant and deterring future anti-social conduct. On these facts alone, we are satisfied that the Commonwealth has met any possible burden it may have had.

Finally, we find issue three to be without merit for the same reasons which we rejected Jordan’s second issue. Moreover, we note that Judge Alexander filed an Explanatory Statement to Become a Part of the Sentences Imposed on January 27, 1993, etc. at each of the cases now before us on appeal. That Statement details the chronology of Jordan’s exodus through the courts beginning in 1986. When we review the facts that came before the probation revocation court at its Gagnon II hearing on September 6,1991, along with Jordan’s subsequent conviction on April 3, 1992, of inmate possessing weapons and inmate possessing implements for escape, and his additional conviction on May 26, 1992, of criminal attempt to commit criminal trespass, we arrive at an inescapable conclusion: Probation was not a viable means of rehabilitating this defendant, Jordan, and deterring future anti-social conduct.

Because we find that the issues raised by counsel would, if proven, have arguable merit, and because of the high quality of the advocate’s brief submitted by counsel, John F. Marshall, Esquire, we decline to find the appeal to be wholly frivolous. We therefore are constrained to deny counsel’s petition to withdraw based upon counsel’s own characterization of this matter as a no-merit appeal. Anders v. California, supra 386 U.S. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498. Nevertheless, our independent and careful review of the probation revocation proceedings and the entire certified record convinces us that none of the issues raised by Jordan, through counsel, have merit and we are able to reach this conclusion from the record before us. Compare, Commonwealth v. McBee, 513 Pa. 255, 520 A.2d 10 (1986) (no need for remand for appointment of new counsel on ineffectiveness claim, where it is clear from the record claim is meritless); Commonwealth v. Sanders, 426 Pa.Super. 362, 373, 627 A.2d 183, 188 (1993) (withdrawal of counsel denied where counsel’s conclusion of frivolousness not supported by appellate court’s independent review). Because we determine that the Brief for Appellant filed on this appeal is not a cursory, no-merit type brief but rather constitutes an effective, advocate’s brief, we need not afford Jordan further assistance to argue this appeal as might otherwise appear required under Anders, supra. We reach this conclusion mindful that Jordan has received notice of the filing of the Brief and a copy thereof, along -with notice that counsel intended to request withdrawal and that Jordan was free to retain other counsel or file his own brief.

The judgments of sentence at Nos. 578, 579, 582, and 583 Pittsburgh, 1993 are hereby AFFIRMED. The Petition for Leave to Withdraw filed June 11, 1993 is DENIED. Jurisdiction relinquished.


author: JOHNSON, Judge: OLSZEWSKI, Judge,

text:
    634 A.2d 640
    COMMONWEALTH of Pennsylvania, v. Johnny Ray TALLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 16, 1993.
    Filed Nov. 22, 1993.

      Nick A. Turco, Public Defender, New Castle, for appellant.
    Annette M. Hutchison, Asst. Dist. Atty., New Castle, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

Johnny Ray Talley appeals from the judgment of sentence imposed following a bench-trial conviction on a charge of Firearms Not To Be Carried Without a License, 18 Pa.C.S. § 6106(a). Talley was sentenced to a term of incarceration of four to eight months. On appeal, Talley contends that the trial court erred in the denial of his motion to suppress physical evidence. We agree, and find that evidence seized during the search of the vehicle in which Talley was a passenger should have been suppressed as the product of an illegal search and seizure.

The underlying facts may be summarized as follows: At approximately 11:45 p.m. on November 6, 1991, Trooper Kevin Hughes was operating radar from his State Police cruiser when he observed the vehicle in which Talley was a passenger speeding at 68 m.p.h. in a 55 m.p.h. zone. Trooper Hughes testified that he pursued the vehicle, and, as he pulled behind the vehicle and stopped, observed that the passenger, Johnny Ray Talley, was moving “from side-to-side,” “bent over in a forward position and he appeared to be fidgeting with the glove box.” Trooper Hughes further testified that Talley’s hands were near the glove box when he approached the stopped vehicle from the passenger’s side. Trooper Hughes then testified that he informed the driver of the reason for the stop and then did a cursory search of the vehicle, of the hands of the driver and the passenger, and looked under the seats for weapons. Trooper Hughes then testified that:

At that time, I asked the passenger [Talley], you know, what he was doing with the glove box and I checked the glove box at the same time I was talking with him and it was locked, and I asked him, I said, you know, do you have a key for this glove box? And he says no. And I said, I asked him if it was his car; he said it was his car. At that time, I looked over on the console — not the console, but the steering column; there were keys hanging from that and one of the keys in this type of vehicle — I believe it was a General Motors product, one of the keys — there were two, there was — the ignition key was in and then another key hanging on that which looked like it would be a key that would open the glove box, and I asked him, I said, is that the key to the glove box hanging there and he had already told me no ... Then he just said, I don’t know if that’s the key. So I grabbed the keys out of the ignition, I unlocked the glove box and there I found the — a loaded .32 caliber revolver.

Suppression Hearing, Notes of Testimony, September 2, 1992, at 4-5.

Following the preliminary hearing, Talley filed a Motion for Pretrial Omnibus Relief in the form of a motion to suppress. After a hearing, the trial court denied this motion. Post-trial motions were denied, and this appeal followed.

Initially, we note that our role in reviewing an order granting or denying a motion to suppress is as follows:

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Vinson, 361 Pa.Super. 526, 522 A.2d 1155 (1987). If the suppression court held for the prosecution, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Id. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is error in the legal conclusions drawn from those factual findings. Commonwealth v. Reddix, 355 Pa.Super. 514, 513 A.2d 1041 (1986).

Commonwealth v. Lopez, 415 Pa.Super. 252, 255, 609 A.2d 177, 178-179 (1992), appeal denied, 533 Pa. 598, 617 A.2d 1273 (1992); see Commonwealth v. Germann, 423 Pa.Super. 393, 621 A.2d 589 (1993); see also Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735 (1993). It is with this standard in mind, that we review this case.

Talley does not challenge the validity of the traffic stop of the vehicle in which he was a passenger. See e.g. Commonwealth v. Whitmyer, 415 Pa.Super. 393, 609 A.2d 809 (1992) (belief that a provision of the vehicle code was being violated). Accordingly, the only issue presented for our review is whether the search of the locked glove compartment during a routine traffic stop was illegal and whether the fruits of that search should have been suppressed due to the Commonwealth’s failure to produce probable cause to warrant the search.

In Commonwealth v. Germann, supra, we stated:

Our courts have sanctioned the warrantless search of a vehicle, stopped for an ordinary traffic offense, only in those cases where independent probable cause was established to justify the search. We have persistently admonished, however, that stopping an automobile or arresting a driver for an ordinary traffic offense, does not, without more, permit a warrantless search of the vehicle. [Commonwealth v.] Dussell, [439 Pa. 392, 266 A.2d 659 (1970) ]; Commonwealth v. Tranzo, 404 Pa.Super. 15, 589 A.2d 1147 (1991). The validity of a warrantless automobile search incident to a summary offense depends on the reasonable cause the seizing officer has to believe that the contents of the automobile offend the law; not the right to arrest. Commonwealth v. Lewis, 442 Pa. 98, 275 A.2d 51 (1971); Commonwealth v. Bailey, 376 Pa.Super. 291, 545 A.2d 942 (1988) (collecting cases).
To justify [a warrantless] search, even though a movable vehicle is involved, an officer must -have independent probable cause to believe that a felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed "within the vehicle, or that there are weapons therein which are accessible to the occupants.
Bailey, [376 Pa.Super.] at 300, 545 A.2d at 947 (citations omitted) (emphasis added). The evidence required to establish “probable cause” must be more than mere suspicion or good faith on the part of the police officer. Dussell, 439 Pa. at 396, 266 A.2d at 662 (citing Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)).

Germann, 423 Pa.Super. at 398-399, 621 A.2d at 592.

In Germann, we discussed several cases in which we sanctioned the warrantless search of a vehicle: for example, Bailey, supra, (officer observed a white substance he believed to be cocaine contained in a plastic bag); Commonwealth v. Leet, 401 Pa.Super. 490, 585 A.2d 1033 (1991) (probable cause to search vehicle stopped for motor vehicle violation arose after police detected odor of marijuana and beer emanating from defendant’s vehicle); Commonwealth v. Stoner, 236 Pa.Super. 161, 344 A.2d 633 (1975) (probable cause to search stopped vehicle after police observed marijuana seeds and leaves inside vehicle); Commonwealth v. Duell, 305 Pa.Super. 431, 451 A.2d 724 (1982) (probable cause to search stopped car where police detected strong odor of marijuana and open wine bottle inside vehicle).

Hughes testified that his reason for searching the vehicle in which Talley was a passenger was that Talley was “fidgeting with the glove box” and “then bec[ame] evasive.” Hughes did not articulate any facts which suggested that Talley had committed any offense at the time of the search. Without articulable grounds to suspect the presence of drugs or other contraband, Hughes’ authority was limited, by both the Pennsylvania and the United States Constitutions, to issuing a citation to the driver. Lopez, 415 Pa.Super. at 261, 609 A.2d at 177.

Despite the fact that there were no objective circumstances to support a suspicion that “drugs or other contraband” were hidden in the vehicle, Hughes searched the vehicle. In Lopez (citing U.S. v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988)), we noted that “when conducting a routine traffic stop, an officer may request a driver’s license and vehicle registration, run a computer check and issue a citation.” Id., 415 Pa.Super. at 261, 609 A.2d at 181. We observed that “[u]pon producing a valid driver’s license and registration, the driver must be allowed to proceed” without “being subject to further delay by police for additional questioning.” Id. at 261, 609 A.2d at 181— 182. In order to justify detention “for further questioning, the officer must have ‘reasonable suspicion “of illegal transactions in drugs or of any other serious crime.” ’ ” Id. (quoting Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). When asked what illegal activity took place, Trooper Hughes responded that the driver was speeding but indicated that he issued no citation to the driver.

Not unlike the present case, in Guzman, supra, the officer attempted to articulate his suspicions by pointing to the demeanor and the answers to questions given by Guzman’s wife. The Court of Appeals held that these suspicions did not arouse objective suspicion of any crime greater than failing to wear a seatbelt, the offense for which Guzman was stopped originally. The court also held that the officer’s hunch was not sufficient to justify, after the fact, a seizure that was not objectively reasonable. Id.

We are constrained to reach the identical conclusion in the present case. The Commonwealth contends that Trooper Hughes did not exceed the scope of a permissible search when he unlocked and opened the vehicle’s glove compartment. It is apparent from Trooper Hughes testimony that Trooper Hughes concluded that Talley was lying to him: “the key [was] hanging there ... and he told me [that] he didn’t have a key.” N.T. 9/2/92 at 5. Citing to Commonwealth v. Morris, 422 Pa.Super. 343, 619 A.2d 709 (1992), alloc. denied, 534 Pa. 654, 627 A.2d 731 (1993), the Commonwealth argues that this Court found a search of the passenger compartment and a pat-down of the vehicle’s passenger justified after a police officer observed the passenger’s furtive movements in stuffing a brown bag under the passenger seat of the automobile. Morris is distinguishable on its facts from the present case.

Morris, as the Commonwealth properly notes, relies on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which held that a police officer may “stop and frisk” an individual for weapons on an articulable suspicion that wrongdoing is afoot and that the subject may be armed. In addition, Morns relies on Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), which extended the Terry rationale to include the passenger compartment of a car, “limited to those areas in which a weapon may be placed or hidden ... if the police officer possesses a reasonable belief based on ‘specific and articulable facts ... taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous.” Id. at 1049, 103 S.Ct. at 3481, 77 L.Ed.2d at 1220. These cases do not obviate the need for probable cause in this Commonwealth for the warrantless search of an automobile stopped for a traffic violation under the Bailey standard.

The level of probable cause necessary for a warrantless search of an automobile is the same as that needed to obtain a warrant. Commonwealth v. Pleummer, 421 Pa.Super. 51, 617 A.2d 718 (1993). The fact that the warrant requirement is relaxed for searches of vehicles does not likewise relax the need for probable cause prior to the search. Id. The trial court characterized the trooper’s description of Talley’s actions as “evasive” and “nervous” and stated that “the officer had a particularized objective basis for suspecting criminal activity.” The trial court also stated that “to allow the vehicle safe passage without a search of the glove compartment would completely ignore the inferences and deductions made by a trained law enforcement officer.”

Here, the Commonwealth argues that the officer made a lawful stop, therefore, the officer was entitled to search the glove compartment for his own protection. The argument fails. Trooper Hughes took no action evidencing any fear for his safety. Neither Talley nor the driver were asked to exit the vehicle. Nor were either of them searched prior to Talley’s arrest. Trooper Hughes did not wait for his back-up, nor did he employ a Terry frisk to ensure that the driver and Talley were not armed. Thus, Trooper Hughes’ claim that he had a reasonable suspicion that Talley was armed is not supported by the record.

From the circumstances of this case, we are constrained to conclude that the search by Trooper Hughes was not based on independent probable cause. Accordingly, for the reasons stated, the judgment of sentence imposed is vacated, and this case is remanded for a new trial at which the Commonwealth may not introduce the illegally seized evidence. Judgment vacated. Case remanded. Jurisdiction relinquished.

OLSZEWSKI, J., files a Dissenting Opinion.

OLSZEWSKI, Judge,

dissenting.

I respectfully dissent from the decision of my esteemed colleagues. I find that Trooper Hughes’s search of the glove box was reasonable. Consequently, I would affirm the judgment of sentence.

In Commonwealth v. Morris, 422 Pa.Super. 343, 619 A.2d 709 (1992), this Court held that when a police officer lawfully stops a vehicle, he may search those areas of the passenger compartment where a weapon may be hidden or placed if he has any reasonable suspicion, based on articulable facts, that the vehicle’s occupants are armed. This holding is based on the officer’s legitimate interest in protecting himself or herself. Id., at 348, 619 A.2d at 712.

The facts in Morris are strikingly similar to those in the present case. Morris was a passenger in a car stopped by a police officer for failing to signal a right-hand turn. When the police officer approached the stopped car, he observed Morris stuffing a brown paper bag under the car seat. The officer went around the car to the passenger side and ordered Morris out of the car. The officer then searched the passenger compartment and frisked Morris. While searching the passenger compartment, the officer seized the brown bag shoved under Morris’ car seat and discovered that it contained clear vials of crack cocaine. This Court validated the police officer’s search of the passenger compartment and his frisk of Morris because “the officer’s observation of Morris’ actions created more than a mere guess; his observations supported a genuine belief that his safety was in jeopardy and, at the very least, articulable suspicion that the bag contained contraband or a dangerous weapon.” Id.

Turning to the case at hand, I find that Trooper Hughes’s observations supported a genuine belief that his safety was in jeopardy and, at the very least, articulable suspicion that the glove box contained contraband or a dangerous weapon. Trooper Hughes testified that, after he pulled over the car in which appellant was riding, he observed appellant moving “around from side to side” and “fidgeting with the glove box.” See majority opinion, at 352. When Trooper Hughes approached the passenger side of the car, he observed that appellant’s hands were near the glove box. Id. Trooper Hughes informed the driver of the reason for the stop and then did a cursory search of the inside of the vehicle, of the hands of the driver and appellant, and looked under the seats for weapons. Id. Lastly, Trooper Hughes testified that appellant appeared “nervous” and was “evasive” when questioned. Id. at 357.

Based on these observations, I find that Trooper Hughes had a reasonable suspicion, supported by articulable facts, that appellant and/or the driver were armed and that a weapon was hidden in the glove box. Consequently, I would hold that Trooper Hughes was entitled to search the glove box for his own protection. Furthermore, I agree with the trial court that “under these facts, to allow the vehicle safe passage without a search of the glove compartment would completely ignore the inferences and deductions made by a trained law enforcement officer.” Trial court opinion, 1/27/93, at 2.