author: HOFFMAN, Judge:

text:
    492 A.2d 14
    COMMONWEALTH of Pennsylvania, Appellant, v. Gary Leo MONTGOMERY and Samuel Tribuiani. COMMONWEALTH of Pennsylvania v. Samuel TRIBUIANI, Appellant.
    Superior Court of Pennsylvania.
    Argued June 6, 1984.
    Filed April 19, 1985.

      Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellant (at 3557) and appellee (at 1163).
    Gilbert J. Scutti, Philadelphia, for appellees (at 3557).
    Maurino, J. Rossanese, Jr., Conshohocken, for appellant (at 1163).
    Before McEWEN, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

The issues on appeal are (1) whether the Pennsylvania Intrastate Hot Pursuit Statute, 42 Pa.C.S.A. § 8901, authorizes police to pursue suspects into another jurisdiction in order to conduct a forcible investigatory stop and (2) assuming the instant arrest was illegal, whether the defendant Tribuiani’s challenged statement was tainted by the illegality. We hold that the police must have probable cause to arrest before they pursue and detain a suspect in another jurisdiction and that the statement was properly admitted. Accordingly, we affirm the suppression order.

Prior to February 20, 1982, four affluent sections of Abington Township, Montgomery County, had been plagued by a high incidence of burglaries. Therefore, Abington police set up a special burglary and surveillance team in the four target areas. On February 19, 1982, a Friday evening, three police officers, in the Crosswicks section, observed a late model Cadillac bearing New Jersey registration 879-SDX in the immediate vicinity of the attempted burglary' of a home. On February 20, at approximately 7 p.m., the same vehicle was observed by Officer John Worthington in the Chapel Hill area at a location approximately 125 yards from the Philadelphia County border. Officer Worthington radioed this information to Detective Allen Boerner who went to the reported location, parked his unmarked police vehicle some 75 yards behind the Cadillac, and commenced surveillance. Five to ten minutes later, he saw a figure dressed in dark clothing appear beside the Cadillac, get in, and drive off. Detective Boerner radioed for assistance and began to pursue the Cadillac. Upon the order of Detective Sergeant John Livingood, who was in charge of the anti-burglary detail, the Cadillac was stopped for investigation at the intersection of Pine and Almott Roads in Philadelphia County, approximately two-tenths of a mile from the Abington Township border. Officer Worthington testified that he did not pull the vehicle over in Abington Township because he was concerned that, without backup, the car would have eluded him had he put his red lights on any sooner. (N.T. November 16, 1982 at 44-45). Upon being stopped, the two male occupants told the police that they had just come from the pharmacy. Defendant Samuel Tribuiani was the driver and defendant Gary Leo Montgomery was the passenger. The police requested Tribuiani’s license and owner’s card. Upon questioning, Tribuiani gave conflicting answers and was unable to state correctly the birthdate listed on his operator’s license. The police observed that the two defendants wore dark clothing and sneakers. They also observed a flashlight, pry bar, gloves, metal cutters, and pages from a telephone directory on the seat of the vehicle. Upon police request, Tribuiani got out of the car and opened the trunk, revealing nothing suspicious. The police then gave him his Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and put him in the police vehicle. Because Montgomery was observed bending over and making furtive movements, the police requested that he get out of the car. As Montgomery opened the car door, the police observed the butt of a gun protruding from underneath the seat. The weapon was identified as a loaded .38 caliber revolver. Montgomery was then arrested. Both defendants were taken to the Abington Township Police Department and charged with a violation of the Uniform Firearms Act, possession of an instrument of crime, and loitering and prowling.

On February 22, the defendants were escorted to a room in the Abington Police Station and shown an array of items that were taken in various burglaries in both Abington and Cheltenham Townships. After viewing the items, the defendants requested and received the opportunity to speak to each other in private. They then each agreed to give statements admitting their complicity in a number of burglaries in Abington Township. On February 23, the defendants were driven throughout Abington Township, and they identified the homes that were the subjects of their burglaries. On that same day, Detective Edward Lynch of the Cheltenham Township Police Department appeared at the Abington Police Station to speak with the defendants about certain burglaries in Cheltenham Township. Both defendants were given Miranda warnings, signed a form acknowledging such, and then identified those items taken during the Cheltenham burglaries.

On February 24, Detective Lynch again met with defendant Tribuiani who signed a second Miranda form and agreed to appear at the Cheltenham Police Station the following day, after posting bail, to provide additional information with respect to the Cheltenham burglaries. Both defendants then posted bail and were released. Defendant Tribuiani went to his home in Philadelphia and then spent the night with his girlfriend in Atlantic City.

On February 25, defendant Tribuiani appeared at the Cheltenham Township Police Station. After riding through the township with the police and identifying those homes which he had aided in burglarizing, he signed a statement admitting his participation in the Cheltenham Township burglaries. He was then arraigned on Cheltenham burglary complaints and released on ROR bail.

At the November 16, 1982 pre-trial suppression hearing, the charges arising out of the Abington Township burglaries and those arising out of Cheltenham Township were consolidated for purposes of suppression and trial. On November 17, the lower court entered the following order:

AND NOW, this 17th day of November, 1983, Court rules prosecution brought by Abington police and indexed at 1132-82, 1133-82 and 1134-82 are to be dismissed because inadmissibility of statements taken as result of illegal arrest.
Prosecutions by Cheltenham police indexed at 735-82 and 758-82 are admissible; taint of illegal arrest having been purged.

The Commonwealth appealed the portion of the order excluding the Abington statements as the result of an illegal arrest. Defendant Tribuiani appealed the portion of the order admitting his February 25 Cheltenham statements. On October 18, 1983, the two appeals were consolidated by order of this Court.

We must first decide whether the defendants’ arrests were legal. The lower court, in finding the arrests illegal, interpreted § 8901 of the Intrastate Hot Pursuit Statute to require that the police have probable cause for arrest before they pursue and detain suspects outside their jurisdiction. It is undisputed that the Abington police had only reasonable cause to make an investigatory stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), when they commenced their pursuit of the defendants, and that probable cause arose only after the vehicle was stopped in Philadelphia County. The Commonwealth, however, argues on appeal that § 8901 should be construed to authorize police pursuit into another jurisdiction for the purpose of an investigatory stop and that probable cause for arrest can arise after the vehicle is stopped.

The instant arrests are controlled by § 8901 of the Intrastate Hot Pursuit Statute, which provides that:

Any police officer of any political subdivision may arrest with or without a warrant any person beyond the territorial limits of such political subdivision for a summary or other offense committed by such person within such political subdivision if the officer continues in pursuit of such person after the commission of the offense. The police shall exercise under this Section only the power of arrest which he would have if he were acting within the territorial limits of his political subdivision.

42 Pa.C.S.A. § 8901 (1980) (repealed 1982). Because of the absence of relevant legislative history and controlling case-law, we must interpret the above statutory language as an issue of first impression. After careful consideration, we conclude that the lower court’s construction of the section is the most reasonable one. Section 8901 expressly refers to extra-territorial arrests for offenses committed within the arresting officer’s jurisdiction. We believe that the legislative intent was to authorize police pursuit of suspects into another jurisdiction for the purpose of arresting them. Therefore, the police must have probable cause sufficient to effect a legal arrest before they pursue. There is no statutory authority providing for extra-territorial detention for investigative purposes. If we adopted the Commonwealth’s position, the police could pursue a suspect out of their jurisdiction in order to conduct only an investigatory stop, without necessarily arresting the suspect. However, as we have noted, § 8901 only authorizes extra-territorial arrests, not stops. Unless we choose to make an irrational distinction between extra-territorial stops resulting in arrest (and therefore valid under § 8901 according to the Commonwealth) and extra-territorial stops not resulting in arrest (and therefore illegal in the absence of statutory authority), the better construction of § 8901 appears to be one authorizing extra-territorial police pursuit for purposes of arrest only.

Moreover, we note that § 8953(a)(2), which replaced § 8901 in August of 1982, expressly authorizes extra-territorial “hot pursuit [by police] of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense” 42 Pa.C. S.A. § 8953(a)(2) (1982) (emphasis added). The revised provision, we think, makes it clear that, before the police can pursue a suspect into another jurisdiction, they must either know or have probable cause to believe that the suspect committed an offense within their jurisdiction.

Under our interpretation of § 8901, therefore, we hold that the defendants’ arrests were unlawful under the intrastate Hot Pursuit Statute and, accordingly, affirm that part of the lower court’s order.

We must next determine whether defendant Tribuiani’s statement given to Cheltenham Township police on February 25, 1982, should have been suppressed as the “fruit” of an illegal arrest.

In its well-known decision in Wong Sun v. United States, [371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ], the Supreme Court of the United States restated the principle that the exclusionary rule which prohibits the use of evidence obtained from an accused in violation of the Fourth or Fifth Amendments prohibits also the indirect use of such evidence. On the question as to what evidence must be considered as obtained as a direct result of an unlawful invasion, and so excluded, the Court said, in a frequently quoted passage: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting the establishment of the primary illegality the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun, supra, 371 U.S. at 487-88, 83 S.Ct. at 417, 9 L.Ed.2d at 455, quoting Maguire, Evidence of Guilt (1959).

Commonwealth v. Whitaker, 461 Pa. 407, 412-13, 336 A.2d 603, 605-06 (1975). Accord, Commonwealth v. Farley, 468 Pa. 487, 496, 364 A.2d 299, 303 (1976); Commonwealth v. Bruno, 466 Pa. 245, 255, 352 A.2d 40, 45 (1976). Thus, “[e]vidence obtained following an illegal arrest must be suppressed unless the Commonwealth can establish that the evidence is sufficiently purged of any taint from the illegal arrest.” Commonwealth v. Farley, supra 468 Pa. at 494, 364 A.2d at 302. “Whether challenged evidence has been sufficiently purged of an impermissible taint, here the clearly unlawful arrest, to render it admissible must be determined from the totality of the circumstances surrounding each particular case [.]” Commonwealth v. Whitaker, supra 461 Pa. at 413, 336 A.2d at 606. Various factors considered by our courts in such cases are the following: (1) the voluntariness of the confession, i.e. whether the defendant’s statement “was sufficiently an act of free will to purge the primary taint,” see Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975); Commonwealth v. Shaw, 494 Pa. 364, 370, 431 A.2d 897, 900 (1981); Commonwealth v. Bogan, 482 Pa. 151, 156, 393 A.2d 424, 426 (1978); Commonwealth v. Farley, supra 468 Pa. at 496-97, 364 A.2d at 303-04 (2) “the intervention of other circumstances subsequent to an illegal arrest which provide a cause so unrelated to that initial illegality that the acquired evidence may not reasonably be said to have been directly derived from, and thereby tainted by that illegal arrest[,]” see Brown v. Illinois, supra 422 U.S. at 603-04, 95 S.Ct. at 2261-62; Commonwealth v. Farley, supra 468 Pa. at 497, 364 A.2d at 304; Betrand Appeal, 451 Pa. 381, 389, 303 A.2d 486, 490 (1973), (3) the temporal proximity of the arrest and the confession, i.e. “whether the connection between the arrest and the confession has become so attenuated as to dissipate the taint,” see Brown v. Illinois, supra 422 U.S. at 603-04, 95 S.Ct. at 2261-62; Commonwealth v. Bogan, supra 482 Pa. at 156, 393 A.2d at 426-27; Commonwealth v. Farley, supra, 468 Pa. at 497, 364 A.2d at 304; Betrand Appeal, supra, 451 Pa. at 389, 303 A.2d at 490, and (4) “the purpose and flagrancy of the official misconduct,” see Brown v. Illinois, supra 422 U.S. at 603-04, 95 S.Ct. at 2261-62; Commonwealth v. Bogan, supra 482 Pa. at 157, 393 A.2d at 427. “Moreover, once the illegal arrest has been established, the Commonwealth has the burden to establish that the confession ‘has been come at “by means sufficiently distinguishable to be purged of the primary taint” . . . . . .’ Betrand Appeal, supra, 451 Pa. at 389, 303 A.2d at 490.” Commonwealth v. Farley, supra 468 Pa. at 497, 364 A.2d at 303.

In the instant case, the lower court found that the taint of the illegal arrest was purged because (1) Miranda warnings had been given to defendant Tribuiani by the Cheltenham Police and the defendant’s statements were voluntary; (2) five days had elapsed between the initial arrest and the defendant’s statements to the Cheltenham Police; and (3) the defendant had been released from custody after posting bail, had gone home to Philadelphia and then to Atlantic City for the night, and had freely appeared at the Cheltenham Police Station to identify the burglarized homes. We agree.

First, we recognize that the fact that Miranda warnings were given is not, by itself, sufficient to dissipate the taint of the illegal arrest or break the causal connection between the illegality and the confession. Brown v. Illinois, supra, 422 U.S. at 603, 95 S.Ct. at 2261; Commonwealth v. Farley, supra 468 Pa. at 498, 364 A.2d at 304; Commonwealth v. Whitaker, supra 461 Pa. at 416-17, 336 A.2d at 607-08; Commonwealth v. Bailey, 460 Pa. 498, 506-07, 333 A.2d 883, 887-88 (1975). We must still determine whether there was an act of free will or other intervening circumstance which broke the chain of illegality.

In order to make this determination, we turn to the caselaw for examples of such intervening acts. In Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967), the police, in investigating the murder of a 16-year-old girl, went to the defendant’s living quarters at approximately 10:30 in the morning. The defendant agreed to accompany the police to their headquarters for questioning and, once there, was questioned intermittently for about two-and-a-half hours. He made several conflicting statements and denied any involvement in her death. Shortly after 2:30 p.m., the defendant was transferred to homicide headquarters and questioned by four officers who told him that they had information that he was with the victim on the night she was murdered. Approximately ten minutes later, he admitted his participation in the crime. The questioning continued and, at approximately 5:40, the police recorded the defendant’s statement and warned him for the first time that anything he said would be used against him in court. At 7:30 p.m., the defendant signed the statement. Our Supreme Court held that, assuming the arrest and detention were illegal, the defendant’s signed confession was still admissible because the evidence was sufficient to establish that the confession was truly voluntary and not the fruit of any illegality. In Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1981), the police, on an informant’s tip, picked up the defendant at his home and took him to police headquarters as part of a routine investigation of a robbery-homicide. The defendant was questioned for six hours and given a polygraph test before being released. He was not advised of his constitutional rights and he denied any knowledge of the crime. Nine days later, the defendant was again picked up and questioned for three hours without being advised of his rights. The day after, the defendant was taken to police headquarters, advised of his Miranda rights for the first time, and, after extensive questioning by five officers, gave an oral and written confession. The Supreme Court held that, although the defendant was entitled to his Miranda warnings before being subjected to police interrogation, the confession was admissible because “the actual cause of appellant’s confession was the police confronting him with the information given by Cranshaw and Boyd which identified appellant as the driver of the get-away car....” Id., 445 Pa. at 448, 283 A.2d at 291.

Thus, the genesis of the confession was not the use of any illegally obtained statements from the appellant’s own lips, rather it was information obtained from a totally separate, independent, and legitimate source. The evidence, therefore, was obtained by means “sufficiently distinguishable to purge it of the primary taint,” in that the confession was not the produce [sic] of exploitation of the original illegality, but rather, the result of confronting appellant with evidence totally devoid of any illegality-

Id. In Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972), the police rounded up all known members of two rival gangs for questioning in connection with a gang war which resulted in the death of one gang member and injury to another. The defendant was among those picked up and was questioned at 2:30 a.m. for approximately one hour without being advised of his constitutional rights. He was then detained in a small room for several hours without questioning. At approximately 9 a.m., while questioning the wounded gang member, the police learned that the defendant had fired the fatal shot at the deceased member. At approximately 10 a.m., the defendant was advised of his constitutional rights and was confronted with the information that he did the shooting. He then admitted mistakenly shooting two of his own gang members. Our Supreme Court, although finding that the “dragnet arrest” was illegal, held that the defendant’s statements were admissible because they were influenced by the “finger of guilt pointed at him by his fellow gang member.” Id., 449 Pa. at 557, 296 A.2d at 758. In Commonwealth v. Lowenberg, 481 Pa. 244, 392 A.2d 1274 91978), an 82-year-old woman was found beaten to death in the bathtub of her apartment. The defendant, a 15-year-old boy living in the same apartment building, was questioned in the presence of his mother and brother and denied any involvement in the crime. After learning that the defendant had been seen speaking to the victim on the night prior to her body being found and that the defendant had not attended school on the day of the killing, the police returned to the defendant’s apartment and, finding him alone, told him that he was suspected of killing the victim and advised him of his constitutional rights. The defendant then admitted striking the victim about 20 times with a pipe after an argument over a check. The defendant was taken to the Public Safety Building where he repeated his confession to a detective in an interview room. After a coroner’s inquest was held, the .defendant was fingerprinted and photographed. On the way to a juvenile hall, the defendant requested an ice cream cone and the detectives stopped at a dairy store. Inside the store, during a casual conversation, the defendant again volunteered a confession. The trial court suppressed the oral admissions made at the defendant’s home and at the Public Safety Building, but admitted the confession made in the dairy store. On appeal, our Supreme Court upheld the admissibility of the dairy store confession because the statement was made not as the result of interrogation, but was made six days after his arrest and initial interrogation, and after talking to counsel and being advised by him. Finally, in Commonwealth v. Bogan, supra, our Supreme Court held that the defendant’s confession was admissible, even assuming that his arrest was illegal, for the following reasons: (1) his first admission of involvement in the killing was separated from his arrest by four hours and Miranda warnings had been given ten minutes after his arrival at homicide headquarters and repeated immediately after his admission, (2) there were “intervening circumstances” present because the defendant denied any knowledge of the killing until he was advised that he matched the description of the assailant, (3) the illegal arrest was not purposeful or flagrant because the defendant was already in custody on another charge and the police would eventually have apprehended the defendant based on a tip implicating him in the killing, and (4) the record supported the suppression court’s determination that the confession was voluntarily made and free of any element of coercion. See also Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897 (1981) (witness’s confession was admissible against the defendant despite the illegality of the defendant’s arrest because it was motivated by the defendant’s confession implicating him; witness could have denied the charges contained in the defendant’s confession but instead chose to confess); Commonwealth v. Wright, 460 Pa. 247, 332 A.2d 809 (1975) (where the defendant denied any involvement in the shooting until he was confronted with his accomplice, and it was such confrontation rather than any exploitation of the circumstances of the arrest, which prompted a confession, the confession was not invalid by reason of an allegedly illegal arrest).

However, in Commonwealth v. Whitaker, supra, our Supreme Court held that the admission of the defendant’s confession was reversible error on the following facts: The defendant was arrested on November 22 based only on mere suspicion and then released, but statements given by him at that time led the police to the defendant’s companion who confessed to the murder and implicated the defendant. Consequently, on November 27, the defendant was picked up at his home and taken to police headquarters for questioning. There, upon being confronted with the companion’s accusation, the defendant made a confession and was again arrested. The Court concluded that there existed a real and direct causal connection between the defendant’s unlawful arrest on November 22 and his ultimate confession on November 27. The Court reasoned that the defendant’s illegally obtained and partially inculpatory admissions on November 22 gave the police enough damaging information to increase the defendant’s vulnerability during subsequent questioning by the same interrogator and may have created a psychological pressure on the defendant to confess on November 27. See also Commonwealth v. Bailey, 460 Pa. 498, 333 A.2d 883 (1975) (oral inculpatory statements should have been suppressed as the product of an illegal detention because there was no evidence of any events which gave rise to the defendant’s statements other than the illegal detention and.there was no break in the chain of events to establish that the statements were free of the taint).

Thus, the caselaw demonstrates that a defendant’s confession has been held admissible, despite the initial illegality, where the defendant confessed after being confronted with independent information legitimately obtained from third parties which implicated him in the crime, see Commonwealth v. Shaw, supra; Commonwealth v. Bogan, supra; Commonwealth v. Wright, supra; Commonwealth v. Fogan, supra; Commonwealth v. Marabel, supra; Commonwealth v. Bishop, supra, or where six days elapsed between the arrest and confession during which time the defendant talked to his counsel and was advised by him, see Commonwealth v. Lowenberg, supra. On the other hand, the confession has been suppressed, even though the defendant confessed after being confronted with a third party’s accusation, where such accusation was a product of information given by the defendant while illegally detained, see Commonwealth v. Whitaker, supra, or where no intervening events broke the chain of illegality, see Commonwealth v. Bailey, supra.

We find the instant case distinguishable from the former category of cases because defendant Tribuiani did not confess to the Cheltenham burglaries after being confronted with independently (and legitimately) obtained information implicating him or after talking to counsel. However; we also find the instant case distinguishable from the latter category of cases because, here, we conclude that the defendant’s behavior, between the arrest on February 20 and the statements on February 25, evidenced an “intervening act of free will” sufficient to purge the taint of illegality. Tribuiani was released on bail, spent a night outside of police custody, and freely and voluntarily presented himself at the Cheltenham Police Station the next day. There is no indication in the record that his actions or statements were caused, produced or provoked by police conduct. Moreover, five days elapsed between the arrest and the defendant’s statements. Therefore, under the totality of the circumstances, we hold that the original illegality has dissipated. See Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963) (where one petitioner had been released on his own recognizance after a lawful arraignment and had returned voluntarily several days later to make a statement, the connection between the arrest and the statement had become so attenuated as to dissipate the taint).

Accordingly, we also affirm that part of the November 17, 1982 order admitting defendant Tribuiani’s statements at the Cheltenham Police Station.

Affirmed.

      . These items had been obtained by Abington police through Gloria Ierrara, a resident of Atlantic City, New Jersey, and defendant Tribuiani's girlfriend. She was discovered to be the registered owner of the Cadillac and had consented to a police search of her living quarters, which revealed the items shown to the defendants.

      . The Abington prosecution was terminated because the Commonwealth was unable to proceed to trial without the defendants’ confessions. The Commonwealth’s appeal was docketed in this Court at No. 3557 PHL 1982. Because the Commonwealth’s notice of appeal listed only "Nos. 1133, 1134, 1135, 735 and 758-82,” we will limit our consideration of this appeal to those bills of information. See Commonwealth v. Keys, 313 Pa. Superior Ct. 410, 460 A.2d 253 (1983).

      . Defendant Tribuiani was granted permission to appeal by this Court, per curiam, on May 3, 1983. His appeal was docketed at No. 1163 PHL 1983.

      . Section 8901 was repealed on June 15, 1982 and replaced by § 8953(a)(2), which reads:
      ... Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
      (2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.
      42 Pa.C.S.A. § 8953(a)(2) (1982).
      Section 8901 had replaced 19 P.S. § 11, which provided:
      Any police officer in the employ of a county, city, borough, town or township may arrest, with or without a warrant, any felon or person who has committed a misdemeanor or summary offense beyond the territorial limits of the political subdivision employing such officer for such offense committed by the offender within the political subdivision employing the police officer if such officer continues in pursuit of the offender after commission of the offense: Provided, however, that a police officer shall exercise only the power of arrest that he would have if he were acting within the territorial limits of the political subdivision employing him.

        Id. (effective 1963; amended 1973; repealed 1980).

      . Previous cases interpreting § 8901 are distinguishable from the instant case: See Commonwealth v. Magwood, 503 Pa. 169, 469 A.2d 115 (1983) (police had probable cause to arrest suspect being pursued and therefore court did not have to consider whether less stringent standard of "reasonable belief” should apply); Commonwealth v. Garner, 314 Pa. Superior Ct. 566, 461 A.2d 302 (1983) (issue was whether the pursuit was "continuous”); Commonwealth v. Stasiak, 305 Pa. Superior Ct. 257, 451 A.2d 520 (1982) (issue was whether pursuit was "continuous”); Commonwealth v. Brown, 298 Pa. Superior Ct. 11, 444 A.2d 149 (1982) (issue was whether pursuit was "fresh, continuous and uninterrupted”); Commonwealth v. Silvers, 286 Pa. Superior Ct. 161, 428 A.2d 622 (1981) (court found arrest proper because there was continuous pursuit by arresting officer from scene of crime to point of arrest); Commonwealth v. Holderman, 284 Pa. Superior Ct. 161, 425 A.2d 752 (1981) (issue was whether state university campus police could exercise the same powers as those exercised by borough police under § 8901). Cf. Commonwealth v. Fiume, 292 Pa. Superior Ct. 54, 436 A.2d 1001 (1981) (court held that there was not “pursuit” under 19 P.S. § 11 because arrest resulted from police investigation which occurred outside their jurisdiction); Commonwealth v. Robb, 238 Pa. Superior Ct. 62, 352 A.2d 515 (1975) (under 19 P.S. § 11, police observed defendant commit a summary offense and therefore had reason to arrest him for that offense before following defendant across township lines and arresting him for a misdemeanor based upon probable cause).
      Here, however, the police did not observe the defendants commit any offense or have probable cause to believe that the defendants committed any offense prior to pursuing them into another jurisdiction. They only observed a nonlocal vehicle in an area which had been subject to several burglaries and someone in dark clothing entering that vehicle.


source: Caselaw Access Project

license: Public Domain

text:
    492 A.2d 23
    Rev. Clayton HEWITT, Grace Hewitt, Darryl Martin and Michael Martin, Co-Guardians of the Estate of Joan H. Forcey, Incompetent, Appellants, v. EICHELMAN’S SUBARU, INC., Kris J. Hoot, Hilltown Township, Bucks County, Pennsylvania Department of Transportation, Fuji Heavy Industries, Subaru of America and Penn Jersey Subaru.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1984.
    Filed April 19, 1985.

      Mark C. Schultz, Norristown, for appellants.
    William J. Ricci, Philadelphia, for appellees.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court erred in declining to exercise jurisdiction over appellee, Fuji Heavy Industries (Fuji). We agree and, accordingly, reverse.

On December 19, 1979, Joan Forcey was severely injured in an automobile accident involving her 1977 Subaru and another vehicle. Her guardian subsequently instituted this action against appellee, the manufacturer of the car, and others, alleging negligence, strict liability in tort, and breach of warranties. Appellee filed a preliminary objection claiming that Pennsylvania courts could not exercise in personam jurisdiction over it. On June 15, 1983, the lower court sustained the preliminary objection and dismissed the complaint against appellee. This appeal by Ms. Forcey’s present guardians followed.

The power of a court to exercise in personam jurisdiction over a non-resident defendant turns upon two considerations: (1) jurisdiction must be conferred by the state long-arm statute, and, (2) the exercise of jurisdiction under the statute must meet constitutional standards of due process. Nissley v. JLG Industries, Inc., 306 Pa.Superior Ct. 557, 560-61, 452 A.2d 865, 866-67 (1982). Because the reach of the Pennsylvania long-arm statute extends “to the fullest extent allowed under the Constitution of the United States,” the controlling consideration is whether the nonresident defendant had sufficient minimum contacts with this forum to permit the exercise of jurisdiction. See Nissley v. JLG Industries, Inc., supra; Koenig v. International Brotherhood of Boilermakers, 284 Pa.Superior Ct. 558, 426 A.2d 635 (1980). Due process requires that a defendant have “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Moreover, “the relationship between the defendant and the forum must be such that it is ‘reasonable ... to require [a foreign] corporation to defend the particular suit which is brought there.’ ” World-Wide Volkswagen Corp. v. Woodsun, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), quoting International Shoe Co. v. Washington, supra 326 U.S. at 317, 66 S.Ct. at 158. Further, although forseeability alone is not a sufficient basis for exercising jurisdiction under the due process clause, the Supreme Court has stated that

the forseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather it is that the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.

Id. 444 U.S. at 297, 100 S.Ct. at 567.

Our court has developed a two-part test for implementing these due process concerns and determining whether the exercise of jurisdiction by our courts over a particular non-resident is constitutional. See, e.g., Union National Bank of Pittsburgh v. L.D. Pankey Institute, 284 Pa.Superior Ct. 537, 426 A.2d 624 (1980); Goff v. Armbrecht Motor Truck Sales, Inc., 284 Pa.Superior Ct. 544, 426 A.2d 628 (1980); Koenig v. International Brotherhood of Boilermakers, supra. First, we apply the test formulated in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Superior Ct. 12, 323 A.2d 11 (1974). This Proctor test has three prongs, as follows:

First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws____ Secondly, the cause of action must arise from defendant’s activities within the forum state____ Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable.

Id., 228 Pa.Superior Ct. at 19, 323 A.2d at 15 (citations omitted). Next, if this test is not satisfied, we must determine whether the non-resident defendant’s activities in Pennsylvania unrelated to the cause of action were “continuous and substantial.” Bork v. Mills, 458 Pa. 228, 231-32, 329 A.2d 247, 250 (1974).

With these principles in mind, we turn to the facts of the instant case: Fuji, a Japanese corporation, is the sole manufacturer of Subaru automobiles. Subaru of America (SOA), a New Jersey corporation licensed to do business in Pennsylvania, is the exclusive importer of Subaru automobiles in the United States. Fuji sells the completed automobiles to SOA in Japan on a “FOB Japan” basis. SOA then sells the automobiles to franchised American distributors who, in turn, distribute them to franchised dealers for sale to the general public. The Subaru car which Ms. Forcey was driving at the time of the accident was manufactured by Fuji and sold to SOA. SOA then sold the car to Penn Jersey Subaru, the franchised regional distributor, which sold it to Eichelman’s Subaru, Inc., a franchised dealership. Ms. Forcey bought the car from Eichelman’s Subaru, Inc.

Although SOA is a publicly-owned corporation, Fuji owns over forty-nine percent of its stock, and two of Fuji’s directors are on the board of directors of SOA. Fuji also maintains a liason office at SOA’s New Jersey headquarters, consisting of five employees. Fifty-three Subaru dealerships operate in Pennsylvania, and the number of Subaru automobiles sold in the Commonwealth annually is as follows:

1975— 3,113
1976— 3,548
1977— 7,352
1978— 9,595
1979— 11,255
1980— 13,291

The first requirement of the Proctor test is that the non-resident defendant must have purposefully availed itself of the privilege of acting within Pennsylvania. In World-Wide, supra, the United States Supreme Court noted that when a corporation purposefully avails itself of the privilege of conducting activities in the forum state, “it has clear notice that it is subject to suit there....” 444 U.S. at 297, 100 S.Ct. at 567. The Court also stated:

Hence, if the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.

Id. at 297-98, 100 S.Ct. at 567. The distinction drawn in World-Wide between a dealer or regional distributor seeking to serve a limited market and a manufacturer or national distributor seeking to serve a larger market is critical to the instant case. Here, the presence of Ms. Forcey’s Subaru automobile in Pennsylvania was not an isolated occurrence but part of Fuji’s effort to serve the United States market for its products. Although Fuji itself does no business in Pennsylvania, it places its automobiles in the stream of commerce in such a manner that it can expect that they will be purchased throughout the United States. Fuji’s use of an American distributor, rather than marketing the automobiles itself, represents only a change in the method of distributing the cars, not a lack of participation in the chain of distribution itself. Furthermore, the close relationship between Fuji and SOA makes it unlikely that Fuji is unaware of the extent of SOA’s distribution network. We therefore find that Fuji has purposefully availed itself of the privilege of conducting activity in Pennsylvania. Accord Hedrick v. Daiko Shoji Co., Ltd., Osaka, 715 F.2d 1355 (9th Cir.1983); Copiers Typewriters Calculators, Inc. v. Toshiba Corp., 576 F.Supp. 312 (D.Md.1983); Lasky v. Continental Products Corp., 569 F.Supp. 1225 (E.D.Pa. 1983); Papafagos v. Fiat Auto S.p.A., 568 F.Supp 692 (D.N.H.1983); United States v. Toyota Motor Corp., 561 F.Supp. 354 (C.D.Cal.1983).

We must next determine whether the cause of action arose from Fuji’s activities within Pennsylvania. Ms. Forcey purchased her allegedly defective automobile as a direct result of Fuji’s efforts to serve the Pennsylvania market. We therefore find that the second prong of the Proctor test has been met. Accord Hedrick v. Daiko Shoji Co., Ltd., Osaka, supra; Poyner v. Erma Werke Gmbh, 618 F.2d 1186 (6th Cir.), cert. denied sub nom. Insurance Co. of North America v. Poyner, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980); Copiers Typewriters Calculators, Inc. v. Toshiba Corp., supra; Rockwell International Corp. v. Costruzioni Aeronautiche Giovanni Agusta, 553 F.Supp. 328 (E.D.Pa.1982).

Finally, we must determine whether Fuji’s connection with Pennsylvania is sufficient to make the exercise of jurisdiction reasonable. Here, one of the automobiles manufactured by Fuji has allegedly injured a consumer in the market Fuji sought to serve. Under these circumstances, Fuji should “reasonably anticipate being haled into court” in Pennsylvania. World-Wide Volkswagen v. Woodson, supra. Accordingly, we hold that all three prongs of the Proctor test are fulfilled and that therefore the exercise of in personam jurisdiction over Fuji does not offend due process.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . Daniel Forcey was Ms. Forcey’s guardian when this suit was instituted. In February, 1983, the present guardians were substituted for Mr. Forcey.

      . The other named defendants are the driver of the other vehicle, Bucks County, Pennsylvania Department of Transportation, the dealership which sold Ms. Forcey the car, and the regional and national distributors of Subaru automobiles.

      . See 42 Pa.C.S.A. § 5322(b).

      . We note that the functions of the car manufacturer and distributor referred to in World-Wide are very similar to those in the instant case. Here, like Audi in World-Wide Fuji is a foreign manufacturer of automobiles, and, like Volkswagen in World-Wide, SOA is the American importer of those automobiles.

      . Our examination of similar cases decided in other jurisdictions since World-Wide has further persuaded us of the reasonableness of asserting jurisdiction over Fuji in the instant case. See Nelson v. Park Indus., Inc., 717 F.2d 1120 (7th Cir.1983), cert. denied sub nom. Bunnan Tong & Co. v. F.W. Woolworth Co., — U.S. —, 104 S.Ct. 1277, 79 L.Ed.2d 682 (1984) and United Garment Mfg. Co., Ltd. v. Nelson, — U.S. —, 104 S.Ct. 1278, 79 L.Ed.2d 682 (1984) (jurisdiction exercised over Hong Kong shirt manufacturer and buyer); Hedrick v. Daiko Shoji Co., Ltd., Osaka, supra (jurisdiction exercised over Japanese manufacturer of rope splices); Noel v. S.S. Kresge Co., 669 F.2d 1150 (6th Cir.1982) (jurisdiction exercised over Japanese trading company); Poyner v. Erma Werke Gmbh, supra, (jurisdiction exercised over German firearms manufacturer); Oswalt v. Scripto, Inc., 616 F.2d 191 (5th Cir.1980) (jurisdiction exercised over Japanese manufacturer of cigarette lighters); Copiers Typewriters and Calculators, Inc. v. Toshiba Corp., supra (jurisdiction exercised over Japanese copier manufacturer); Lasky v. Continental Products Corp., supra (jurisdiction exercised over Japanese car manufacturer); Papafagos v. Fiat Auto S.p.A., supra (jurisdiction exercised over Italian automobile manufacturer); United States v. Toyota Motor Corp., supra (jurisdiction exercised over Japanese automobile manufacturer); Graco, Inc. v. Kremlin, Inc. 558 F.Supp. 188 (N.D.Ill.1982) (jurisdiction exercised over French manufacturer of paint spraying equipment); Rockwell Int'l Corp. v. Costruzioni Aeronautiche Giovanni Agusta, supra (jurisdiction exercised over French manufacturer of helicopter parts). But see Samuels v. BMW of North America, Inc. 554 F.Supp. 1191 (E.D.Tex. 1983) (jurisdiction not exercised over Japanese car manufacturer); cf. Humble v. Toyota Motor Co., Ltd., 727 F.2d 709 (8th Cir.1984) (jurisdiction not exercised over Japanese manufacturer of car seats used by Japanese car manufacturer because connection with forum state too tenuous); DeJames v. Magnificence Carriers, Inc., 654 F.2d 280 (3d Cir.), cert. denied, 454 U.S. 1085, 102 S.Ct. 642, 70 L.Ed.2d 620 (1981) (jurisdiction not exercised over Japanese corporation which converted ship because corporation did not take advantage of indirect marketing scheme and therefore connection with forum state too remote); Ins. Co. of North America v. Marina Salina Cruz, 649 F.2d 1266 (9th Cir.1981) (jurisdiction not exercised over Mexican naval shipyard which made repairs on boat which later sank off Alaskan coast because shipyard had insufficient contacts with Alaska and it was too burdensome for shipyard to be haled into court there); Cannon v. Tokyu Car Corp., 580 F.Supp. 1451 (S.D.Miss.1984) (jurisdiction not exercised over Japanese manufacturer of hauling container because it had insufficient contacts with forum state and presence of container in forum was an isolated incident).
      Appellee has also directed our attention to Mid-Atlantic Subaru Star, Ltd. v. Subaru of America, Inc., No. 78-851 (D.Md. Oct. 1, 1979), in which a federal district court declined to exercise jurisdiction over Fuji under Maryland’s long-arm statute. We do not find the court’s rationale persuasive, however, and further note that Mid-Atlantic Subaru Star did not involve an allegedly defective automobile but the termination of a distributorship agreement between plaintiffs and SOA.


text:
    492 A.2d 27
    Alfred J. HOCH, III, Appellant, v. PHILADELPHIA ELECTRIC COMPANY, Pennsylvania Power and Light Company and K.W. Reese, Inc.
    Superior Court of Pennsylvania.
    Argued Oct. 9, 1984.
    Filed April 19, 1985.

      Lawrence F. Flick, Norristown, for appellant.
    Edward J. Hughes, Norristown, for appellees.
    Before ROWLEY, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

On September 21, 1982, appellant Alfred J. Hoch, III filed a complaint against appellee Philadelphia Electric Company (PECO), Pennsylvania Power & Light Company (PP & L), and K.W. Reese, Inc. (Reese), alleging trespass (Count I), conspiracy (Count II), nuisance (Count III), and unconstitutional taking (Count IY). The allegations in all four counts stem from the defendants’ actions in clearing a right-of-way on appellant’s property in order to construct a high voltage transmission line. On July 26, 1983, the lower court granted appellee’s preliminary objections in the nature of a demurrer to all counts of appellant’s complaint and dismissed the complaint as against appellee, thereby prompting this appeal. We affirm in part and reverse in part.

In ruling upon a demurrer, we look to the following principles of law:

A demurrer admits all relevant facts pleaded in the complaint and all inferences fairly deducible therefrom, but not conclusions of law____ A demurrer may not be sustained unless the complaint evidences on its face that the claim cannot be sustained because the law will not permit recovery.... In ruling on a demurrer, a court may not consider factual matters not disclosed in the record____ If there is any doubt, the doubt should be resolved in favor of overruling the demurrer; ....

Chorba v. Davlisa Enterprises, Inc., 303 Pa.Superior Ct. 497, 500, 450 A.2d 36, 37-38 (1982) (citations omitted). Here, appellant alleged in his complaint that: (1) on or about June 10, 1980, appellee and PP & L employed Reese to go upon appellant’s land for the purpose of clearing a right-of-way granted to PP & L by appellant’s predecessor-in-title on or about February 9, 1927; (2) pursuant to said employment, Reese entered appellant’s property, removed from a 9,280 square foot area therein all plantings, bushes, shrubs, and trees, and damaged appellant’s access road; (3) an expenditure of $21,550 will be required to return appellant’s land to its condition prior to Reese’s entry; (4) prior to Reese’s entry, appellee and PP & L, through their representatives, had been warned that they had no right to enter appellant’s land; (5) the sole purpose of the defendants’ acts was to accommodate appellee in the erection, construction, and maintenance of a high voltage transmission line adjacent to the easement granted to PP & L; (6) the transmission line causes electromagnetic radiation, noise, and vibrations to be emitted on a continuous and daily basis onto appellant’s land, interfering with appellant’s, and others’, use and enjoyment of such land, thereby rendering it useless and valueless, as well as unsafe and hazardous; and (7) PP & L allowed appellee and Reese to enter appellant’s land for the purpose of building appellee’s transmission line without compensating appellant.

In its October 3, 1983 opinion, the lower court sustained appellee’s preliminary objections on three grounds: (1) because the damage to appellant’s property was the direct and immediate consequence of the exercise of the power of eminent domain, the appropriate remedy was not an action in trespass, but rather the eminent domain .provisions of the Business Corporation Law, see 15 P.S. §§ 3272, 1322, 3021-23; (2) the defendants had acted within the rights of, and had not exceeded the scope of, the easement granted by appellant’s predecessor-in-title, and therefore appellant failed to state a cause of action in trespass; and (3) the Public Utility Commission (PUC), and not the lower court, was the proper forum to contest the safety of the power line, see 66 Pa.C.S.A. § 701. For the following reasons, we believe that the objections were properly sustained with regard to Count IV of the complaint (unconstitutional taking), but that the other three counts were improperly dismissed.

First, we find that the eminent domain provisions of the Business Corporation Law do not provide an exclusive remedy for appellant in this case.

[B]efore any [utility] shall exercise the power [of eminent domain], the [PUC], upon application of such [utility], shall have found and determined, after public hearing, that the service to be furnished by said company through the exercise of said power is necessary or proper for the service, accommodation, convenience, or safety of the public.

15 P.S. § 3272 (footnote omitted). On June 6, 1978, appellee was granted a certificate of public convenience for its so-called 500 kv Elroy-Hosensack electric transmission line, the one in issue here. Under the heading “Description of Proposed Route,” the certificate recites the following: “The proposed transmission line crosses 124 separately-owned parcels of land. Right-of-way agreements have been executed with the owners of 98 of those parcels. There are 26 eminent domain proceedings pending with respect to this line.” (Exhibit A to Appellee’s Preliminary Objections to Appellant’s Complaint at 4) (emphasis added). Appellant is not, however, one of the property owners named as against which appellee’s eminent domain power was to be exercised. (Id. at 1-2, 5-21). Therefore, the procedures for ascertaining damages resulting from the exercise of the power never came into play. “[I]f the condemnor does not possess the taxing power, a failure to comply with its own requirements exercising the power of eminent domain will deem an entry upon the land of another to be a trespass.” E. Snitzer, Pennsylvania Eminent Domain § 201(l)-5 at 32 (1965), citing Cochran Coal Co. v. Municipal Management Co., 380 Pa. 397, 110 A.2d 345 (1955) (whether action of trespass or viewers’ proceeding is proper remedy for ascertainment of damages). By the same token, then, appellant’s Count IV, sounding in condemnation, was properly dismissed in the instant case because appellant did not petition the lower court to appoint viewers, but instead filed a complaint “in trespass.”

Additionally, we do not agree that appellee acted within the rights granted to PP & L by appellant’s predecessor-in-title. The pertinent parts of the easement are as follows:

I Oswin Nace do hereby for myself, my heirs, executors, administrators and assigns irrevocably grant and convey unto the said Pennsylvania Power and Light Company, its successors and assigns and lessees the right to construct, operate and maintain and from time to time reconstruct its electric lines including such poles, towers, wires, fixtures and apparatus as may be from time to time necessary for the convenient transaction of the business of said company, its successors or assigns and lessees upon, across, over and along the property which I own or in which I have any interest in the Township of Upper Hanover ... and upon, across, over and along the roads, streets and highways adjoining the said property ... including the right of ingress and egress to and from ... at all times for any of the purposes aforesaid together with the right to set and maintain the necessary guy and brace poles or towers and anchors and to attach thereto the necessary guy wires.
# sjs * * *
[Furthermore], I do hereby release and quit claim the said Pennsylvania Power and Light Company, its successors or assigns and lessees of and from any and all damages, loss or injury that may be at any time caused by or resulting from the construction, reconstruction, operation and maintenance of the said lines or the trimming or cutting down of any and all trees which in the judgment of the said company, its successors, assigns or lessees may interfere with the construction, reconstruction, maintenance or operation of the said lines or menace the same.

(Exhibit B to Appellant’s Complaint). “A party who challenges a pleading by demurrer opens for question the sufficiency of his own pleadings.” 5 Standard Pa.Practice 2d § 25:67 at 236 (1982). Here, appellee has not averred that it was a successor, assignee, or lessee of PP & L. Cf. Appellee’s Preliminary Objections to Appellant’s Complaint ¶¶ 3, 4. Moreover, even assuming that appellee had been granted the rights contained in the easement, this would not mean that appellant had failed to state a cause of action. Rather, the easement would be in the nature of an affirmative defense to the allegations of trespass. Further, as appellant correctly notes, only reasonable increases in the burden imposed on the easement are permitted, see Bodman v. Bodman, 456 Pa. 412, 321 A.2d 910 (1974), thus possibly creating material issues of fact for a fact finder to resolve. Therefore, we find that appellant has stated a cause of action in trespass.

Lastly, we cannot agree that the PUC is the proper forum to resolve the issues raised in appellant’s complaint. Appellee and the lower court cite West Penn Power Co. v. Pennsylvania Public Utility Commission, 199 Pa.Superior Ct. 25, 184 A.2d 143 (1962), and Department of Environmental Resources v. Pennsylvania Public Utility Commission, 18 Pa.Commonwealth Ct. 558, 335 A.2d 860 (1975), aff'd per curiam, 473 Pa. 378, 374 A.2d 693 (1977), for the proposition that the PUC is the proper forum in which to object to the safety of an electric transmission line and that such objection can be made pursuant to the complaint procedure of 66 Pa.C.S.A. § 701. Those cases are inapposite to the case at bar. Both concerned appeals from orders of the PUC either granting or denying applications for certificates of public convenience. Because the selection of rights-of-way for condemnation is a matter for the PUC’s consideration, it was held that a reviewing court’s scope of review is “narrow.” Department of Environmental Resources v. Pennsylvania Public Utility Commission, supra 18 Pa.Commonwealth Ct. at 562, 335 A.2d at 863. The instant case is readily distinguishable. Here, the certificate of public convenience has already been granted, and appellant is not claiming that such grant was improper. Indeed, the certificate arguably does not even affect appellant because, as we have already noted, appellee did not seek to exercise its power of eminent domain against appellant’s land. Instead, appellant alleges that appellee’s acts constituted a trespass on his land, created a nuisance, and were part of a civil conspiracy “to deprive [him] of his property without compensation.” (Appellant’s Complaint at 5). These contentions, we believe, stem from whether or not appellee was granted PP & L’s easement rights and, if so, whether or not those rights were exceeded, rather than from the PUC’s determination of the safety of the transmission line. Our Supreme Court has upheld equity jurisdiction where the issue was whether the burden on an easement which provided for the installation of railroad siding had been unreasonably increased. Rogoff v. Buncher Co., 395 Pa. 477, 151 A.2d 83 (1959). Furthermore, while the plaintiff in Rogoff sought equitable relief, here, appellant seeks only damages. “[T]he Legislature did not intend for the PUC to have [the power to award damages].” Feingold v. Bell of Pennsylvania, 477 Pa. 1, 8, 383 A.2d 791, 794 (1977). As the Public Utility Code provides:

[e]xcept as otherwise provided in this part, nothing in this part shall abridge or alter the existing rights of action or remedies in equity or under common or statutory law of this Commonwealth, and the provisions of this part shall be cumulative and in addition to such rights of action and remedies.

66 Pa.C.S.A. § 103(c). Similarly,

[i]f any person or corporation shall do or cause to be done any act, matter, or thing prohibited or declared to be unlawful by this part, or shall refuse, neglect, or omit to do any act, matter, or thing enjoined or required to be done by this part, such person or corporation shall be liable to the person or corporation injured thereby in the full amount of damages sustained in consequence thereof. The liability of public utilities, contract carriers by motor vehicles, and brokers for negligence, as heretofore established by statute or by common law, shall not be held or construed to be altered or repealed by any of the provisions of this part.

Id. § 3309(a). It follows, then, that appellee’s, and the lower court’s, reliance on the complaint procedure of 66 Pa.C.S.A. § 701 is misplaced. Here, as in Feingold,

a complaint by appellant to the PUC seeking damages could not have resulted in an award by the PUC even if that agency had determined the complaint to be meritorious. It is clear that the remedial and enforcement powers vested in the PUC by the Public Utility Law were designed to allow the PUC to enforce its orders and regulations but not to empower the PUC to award damages or to litigate a private action for damages on behalf of a complainant.

Feingold v. Bell of Pennsylvania, supra, 477 Pa. at 10, 383 A.2d at 795 (footnote omitted); cf. Elkin v. Bell Telephone Co., 491 Pa. 123, 420 A.2d 371 (1980). Thus, we fail to see what actions the PUC could take in regard to the interpretation of the easement granted to PP & L. “Resolution of appellant’s claims depend[s] upon no rule or regulation predicated on the peculiar expertise of the PUC, no agency policy, no question of service or facilities owed to the general public, and no particular standard of safety or convenience articulated by the PUC.” DeFrancesco v. Western Pennsylvania Water Co., 499 Pa. 374, 378, 453 A.2d 595, 597 (1982) (jurisdiction found where complaint alleged that utility negligently failed to provide required service). Therefore, the PUC is not the proper forum to hear appellant’s trespass, nuisance, and conspiracy complaints.

For the foregoing reasons, we affirm the order of the lower court insofar as it sustains the preliminary objections to Count IV of appellant’s complaint and dismisses that count as against appellee, but reverse as to Counts I, II, and III because of our finding that a cause of action in trespass was properly stated and that neither the PUC nor the eminent domain provisions of the Business Corporation Law provide exclusive remedies for compensating appellant for the damages to his land.

Affirmed in part and reversed in part.

Remanded for proceedings consistent with this opinion.

Jurisdiction is not retained.

      . Where the taking of a right-of-way or an easement by a utility is at issue, the provisions of the Business Corporation Law, see 15 P.S. §§ 115-16, 3021-23, and not those of the Eminent Domain Code, 26 P.S. § 1-101 etseq., apply. See 15 P.S. § 1322(H) and 26 P.S. § 1-901. "[U]nless the condemnation in question involves the acquisition of fee title, the provisions of the [Eminent Domain] Code ... are not applicable.” Philadelphia Elec. Co. v. Carr, 4 Pa.Commonwealth Ct. 571, 575, 287 A.2d 917, 919 (1972) (opinion per curiam, adopting the opinion of the lower court); Fairview Water Co. v. Pa.Publ.Util. Comm’n, 83 Pa.Commonwealth Ct. 627, 631-632, 479 A.2d 20, 22 (1984).

      . “[W]hen a taking has been affected without the condemnation procedure having been followed, the landowner may petition the court for the appointment of viewers to assess and award damages.” O’Keefe v. Altoona City Auth., 9 Pa.Commonwealth Ct. 397, 399-400, 304 A.2d 916, 917 (1973) (emphasis added); see also E. Snitzer, supra § 201(1)-5.1 (waiver of trespass remedy). We also note that a court sitting in equity has jurisdiction to entertain questions of the scope and validity of condemnations of rights-of-way. Redding v. Atlantic City Elec. Co., 440 Pa. 533, 269 A.2d 680 (1970); Fairview Water Co. v. Pa.Pub.Util.Comm’n, 83 Pa.Commonwealth Ct. 627, 479 A.2d 20 (1984). Here, however, appellant seeks only damages; he is not challenging the scope or validity of a condemnation nor is he asking that the transmission line be removed from his property.

      . Because the allegations of nuisance and conspiracy necessarily relate to the alleged trespass, it follows that those counts also properly state causes of action.

      . The procedure is as follows:
      The commission, or any person, corporation, or municipal corporation having an interest in the subject matter, or any public utility concerned, may complain in writing, setting forth any act or thing done or omitted to be done by any public utility in violation, or claimed violation, of any law which the commission has jurisdiction to administer, or of any regulation or order of the commission. Any public utility, or other person, or corporation likewise may complain of any regulation or order of the commission, which the complainant is or has been required by the commission to observe or carry into effect. The Commonwealth through the Attorney General may be a complainant before the commission in any matter solely as an advocate for the Commonwealth as a consumer of public utility services. The commission may prescribe the form of complaints filed under this section.

      . Appellee argues that appellant's new matter contained in its answer to Appellee’s Petition to Transfer the Matter to Commonwealth Court characterized the suit as one concerning trespass only, thereby waiving the other counts in appellant’s complaint. We note that neither the petition nor the answer are a part of the record, and hence we decline to consider this issue. See Siravo v. AAA Trucking Corp., 306 Pa.Superior Ct. 217, 219, 452 A.2d 521, 522 (1982) (court considers only those facts which are in the record and not those interjected by briefs); Society Hill Towers Owners Ass’n v. Matthew, 306 Pa.Superior Ct. 13, 18 n. 3, 451 A.2d 1366, 1369 n. 3 (1982) (same).


author: CERCONE, Judge:

text:
    492 A.2d 32
    COMMONWEALTH of Pennsylvania v. Isaac WHITE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 28, 1984.
    Filed April 19, 1985.

      Lawrence F. Flick, Norristown, for appellant.

      J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This appeal arises from an Order of the Court of Common Pleas of Montgomery County denying Mr. White’s (“appellant”) Motions for New Trial and In Arrest of Judgment, thus affirming his conviction of Defiant Trespass.

The Act under which the appellant was charged and found guilty, 18 Pa.C.S.A. § 3503(b), provides:

(b) Defiant trespasser.—
(1) A person commits an offense if knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(1) actual communication to the actor; ...

Section 3503 provides certain defenses to a charge of defiant trespass. Subsection (c) states:

(c) Defenses. — It is a defense to prosecution under this section that:
(2) the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; ...

On appeal, appellant asserts (1) that the facts in this case support his § 3503(c)(2) statutory defense and, as a related claim, (2) that the facts show a denial of his rights'guaranteed under the Pennsylvania Constitution Article I, §§ 1, 7, and 20 and the Constitution of the United States Amendments 1, 5 and 14.

When testing the sufficiency of the evidence, a reviewing court must view all of the evidence in the light most favorable to the verdict winner and give that party the benefit of all reasonable inferences therefrom. Common wealth v. Speller, 311 Pa.Super.Ct. 569, 458 A.2d 198 (1983). The weight to be given to the evidence is for the trier of fact. Commonwealth v. Carter, 272 Pa.Super.Ct. 411, 416 A.2d 523 (1979). The facts as found by the court below are supported by the record and it is upon these facts that we base our opinion.

On December 7, 1982, the appellant was terminated as an employee of the Ford Aerospace Plant in Upper Gwynedd Township, Montgomery County (“Ford”). He was told that if he wished to be reinstated, he would have to take a medical leave of absence. He was given until twelve noon, December 9, 1982, to make a decision. Around 7:00 a.m., December 8, 1982, appellant entered the plant and was immediately told to leave, which he did. Later the same morning, appellant was prevented from reentering the plant by a guard at the south gate. The guard asked appellant to leave and he refused. The Upper Gwynedd Township police were contacted and Sergeant Freed responded. After consultation with management personnel of the Ford plant, the sergeant asked appellant to leave the premises. Appellant stated that he would not leave until he spoke with Ms. Rice, the company’s Senior Labor Relations Representative who had terminated his employment and given him the previously stated option. Ms. Rice was called and she went down to the guard’s station. The content of the conversation between appellant and Ms. Rice pertained to whether or not he was officially requesting medical leave. Their discussion was inconclusive and Ms. Rice asked the appellant to leave. Sergeant Freed testified that he also told the defendant to leave at this time.

Defendant got into his car and drove it toward the guard station, parked the car in a travel lane, and got out to speak with a union steward and other employees who were leaving the plant for lunch. He testified that he asked them to go inside to get a certain medical form for him. Parenthetically, in his conversation with Ms. Rice, appellant had requested and not received this medical form. A few minutes later, Sergeant Freed again told appellant to leave and, upon his refusal, arrested appellant for defiant trespass. Based on this entire series of events, the court below found appellant to be guilty of defiant trespass.

Upon beginning our discussion, we note that appellant was asked to leave the premises at three different points in time prior to his arrest and each time he refused to obey. The first time was prior his request to speak with Ms. Rice. The second time was following his conversation with Ms. Rice at which point he did leave the guard station and went to his parked car in the adjacent parking lot. The third time was after he had stopped his car near the gate and had spoken with a union steward and other egressing employees.

An understanding of the activities that normally occur at the south gate guard house is essential to our holding. The court below made no findings of fact on this point. Therefore, we will note the Commonwealth’s uncontradicted testimony. On cross-examination, Mr. Bieler, Security and Safety Supervisor at the plant, testified that the south gate is one of two main entrances to the plant building for hourly employees, visitors, business invitees, customers, job applicants and retirees seeking medical information. On cross-examination, Ms. Rice responded “yes” to the question whether it was normal for employees or dependents of employees and retirees to come to the plant, at the south gate, to request medical forms. She further responded in the affirmative to a question whether she had instructed the appellant to wait for her at the guard’s station. She also testified that it was customary for members of the public, as well as employees, and other people with business at the plant to wait at the south gate guard station area until they state their business and are invited into the plant.

The court below did not find, nor would the record support such a finding, that the appellant’s conduct, though annoying to the employer, was either obstructive, abusive, or destructive. There is no evidence that the appellant was causing a breach of the peace except that he did not leave the premises immediately upon the request of Ford’s agents to do so.

Subsection (c)(2) of § 3503 provides an affirmative defense to a charge of defiant trespass. This statute is an adoption of Model Penal Code § 221.2, 10 Uniform Laws, Ann., Master Edition § 221.2. The notes to the Proposed Official Draft of the Model Penal Code, § 221.2, provide insight into the purpose of this statutory defense. The notes state, in pertinent part:

The primary objective is to exclude criminal prosecution for mere presence of a person in a place where the public generally is invited. Persons who become undesirable by virtue of disorderly conduct may of course be prosecuted for that offense. The Section is not intended to preclude resort by the occupant to civil remedies for trespass, including his privilege, whatever it may be, of barring entry or ejecting.

No reported decision in Pennsylvania has dealt directly with the scope and purpose of a subsection (c)(2) defense except insofar as a claimant’s political free speech rights were involved. Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981). In Tate, the Pennsylvania Supreme Court overturned convictions for defiant trespass stemming from the defendants’ refusal to desist from distributing politically oriented materials in a peaceful manner on the campus of a privately owned college. In that case, the court found that the college had created a public forum by opening the campus to the public to hear the then director of the Federal Bureau of Investigation to speak in a campus building.

A finding of state action is not necessary for a defendant to seek protection in the subsection (c)(2) defense. Nor need we discuss appellant’s constitutional free speech rights. This statutory defense merely requires that the defendant be in a place open to the public and that he comply with all lawful conditions imposed on access to or remaining on the premises. The south gate area was open to the public for limited purposes already mentioned. Appellant was present at that gate for the explicit purpose for which the area was open. That is, he was first seeking to speak with a Ford management employee and, after that effort was apparently fruitless, he sought to speak with a union steward who was walking out through the gate.

The statutory defense in section 3503(c)(2) provides a defendant with an affirmative defense. An affirmative defense is defined as one where the defendant admits his commission of the act charged, but seeks to justify or excuse it. Commonwealth v. Rose, 457 Pa. 380, 387, 321 A.2d 880 (1974). When evidence is introduced which raises an issue relating to an affirmative defense, the burden of proof falls on the Commonwealth to disprove the defense. 2 Pa. Criminal Practice § 26.10 (Wasserby, Ed.1981). See Commonwealth v. Cartagena, 482 Pa. 6, 23, 393 A.2d 350, 359 (1978). This is because the truth of all affirmative defenses goes to the final analysis of the guilt and the rightness of punishing the accused. Therefore, at the close of the evidence, the jury must be told that if they have a reasonable doubt of the element thus raised they must acquit.

In this case, the defendant did present sufficient evidence to show that the gate area, where the events occurred, was open to the public for the specific purposes for which the defendant was in that area. The Commonwealth presented no evidence that the defendant failed to comply with any lawful condition imposed on his access to those premises or in any other way “breached the peace”. The mere fact that his invitation to be on the premises was revoked is not sufficient to remove the defendant from the protection of subsection (c)(2). To find otherwise would render that subsection meaningless.

To permit the use of the criminal process to effectuate what is basically a civil cause of action for relief would be unjust. Although the facts in this case and the $40.00 fine involved may seem insignificant, the principle is elemental to maintaining a proper perspective on the distinction between criminal and civil trespass actions. The purpose of the criminal trespass statute is to prevent unlawful intrusion onto real property or remainder thereon or to prevent unlawful breaches of the peace relating to realty. Because appellant had complied with all “lawful conditions” for access to the premises, 18 Pa.C.S.A. § 3503(c)(2), his conviction may not stand.

Reversed.

      . We note that before this issue was codified, Pennsylvania recognized criminal trespass to property at common law if the circumstances constituted a breach of the peace. Commonwealth v. Taylor, 5 Binney 277.

      . In Commonwealth v. Rose, supra, the Supreme Court adopted this burden of proof for all affirmative defenses. Previously, Pennsylvania defendants had the burden of proving by a preponderance of the evidence the facts relating to an affirmative defense. By placing the burden on the Commonwealth, the court was adopting a standard consistent with the constitutional requirement that the state must convince the jury of each element of a crime.


author: BECK, Judge:

text:
    492 A.2d 36
    NOWICKI CONSTRUCTION CO., INC., Appellee, v. PANAR CORP., N.V. Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1984.
    Filed April 26, 1985.

      Michael J. O’Neill, Doylestown, for appellant.
    Frederick C. Horn, Lansdale, for appellee.
    Before MONTEMURO, BECK and WATKINS, JJ.
   BECK, Judge:

In this appeal we are asked to determine the extent, if any, to which two written documents signed by authorized agents of appellant Panar Corporation, N.V. (Panar), and appellee Nowicki Construction Company, Inc. (Nowicki), limit the amount collectible under Nowicki’s mechanics’ lien claim against Panar. For the following reasons, we affirm the trial court’s decision that neither document restricts Nowicki’s mechanics’ lien claim and that Nowicki is accordingly entitled to collect $37,460.99 on its lien claim.

By a written contract of November 5, 1978, Nowicki undertook construction of a stone addition to a residence owned by Panar and occupied by Mr. and Mrs. Deutsch. In pertinent part, the contract provided that

[i]n no event shall the total cost of the [stone addition] project ... exceed the sum of $100,000. — (one hundred thousand dollars). Payment of all invoices for completed work or delivered materials shall be paid by Panar Corporation N.V. at the end of each week____ Labor invoices will also ... be paid at the end of each week in which they are presented.

In other words, the November 5 contract contemplated a “pay-as-you-go” arrangement with an aggregate cost of $100,000 or less.

Between November 6, 1978, and July 18, 1979, Nowicki submitted more than $100,000 in material and labor invoices which Panar partially paid in the amount of $122,327.13. In light of the unpaid balance on the submitted invoices, on July 23, 1979, Nowicki presented Panar with a written document that outlined certain work remaining to be done on the residential addition and stated that Nowicki’s “fee for the completion of [the outlined] work [was] $5,000.00” The document further declared that Nowicki had “discounted in excess of $30,000.00 to [Panar’s] account.” Finally, the document bore a handwritten addendum, to wit, “All work to be completed by Aug. 4, ’79 except gutters + drain spout, shutters, hand rail at steps for payment of $5,000— completion fee.” Authorized agents of Panar and Nowicki signed the document and initialled the addendum.

Thereafter, Panar did not pay Nowicki $5,000 pursuant to the parties’ July 23 agreement, and Nowicki filed a mechanics’ lien claim against Panar. On November 13, 1979, Nowicki instituted suit on the lien claim for $38,-529.12, the balance due on the invoices tendered to Panar for materials and labor supplied by Nowicki after the signing of the parties’ November 5 contract. Panar contended before the trial court, and again argues in this appeal, that Nowicki is not entitled to recover on its mechanics’ lien claim either because the parties’ November 5 contract restricted Nowicki’s potential payment to $100,000 which amount plus an additional $22,327.13 Nowicki has already received or, alternatively, because Nowicki failed to finish certain work outlined in the parties’ July 23 agreement which was a substituted contract that extinguished any prior agreement of the parties and limited Nowicki’s potential payment to $5,000.

“[A] mechanic’s lien is a statutory proceeding, the action in rem being in the nature of collateral security for the payment of the debt due for work done or materials furnished” in accordance with a contract, express or implied. Hoffman Lumber Co. v. Mitchell, 170 Pa.Super. 326, 331, 85 A.2d 664, 667 (1952), allocatur denied; Murray v. Zemon, 402 Pa. 354, 167 A.2d 253 (1961); Fisher Sprinkler Co. v. Ide, 305 Pa.Super. 554, 451 A.2d 1015 (1982); Sections 201, 301 & 503 of the Mechanics’ Lien Law of 1963, Act of August 24, 1963, P.L. 1175, 49 P.S. §§ 1201, 1301 & 1503.

Indisputably, the parties’ original written contract of November 5 contained a $100,000 ceiling. However, the evidence of record clearly shows that the November 5 contract was not given strict adherence by either party. Nowicki submitted invoices totalling more than $100,000. Panar made partial payments of $122,327.13 on the tendered invoices but did not promptly pay the full amount of all invoices as they were presented. That is, Panar’s payments did not keep abreast of Nowicki’s requests for payment as the building work progressed. Reproduced Record at 40a-41a.

At trial, Nowicki’s president and sole shareholder, Allan J. Nowicki, explained that the discrepancies between Nowicki’s actions and the parties’ November 5 contract resulted from the parties’ subsequent oral modifications of the November 5 contract. E.g., Reproduced Record at 21a-31a, 158a. Mr. Nowicki testified, for example, that although the building plans designated vinyl flooring in the bathroom, Panar (acting through its agents Mr. and Mrs. Deutsch) later requested that imported Italian marble tiles be used. Reproduced Record at 27a, 353a. Mr. Nowicki stated that the use of marble tiles not only increased construction costs but also delayed completion of the work since the marble had to be specially ordered and installed. Reproduced Record at 44a, 353a. Regarding the marble tiles, Mrs. Deutsch indicated that she and her husband had always assumed that such flooring would be used in the bathroom but had never discussed the use of such materials until after the parties had signed the November 5 contract and work had begun on the residential addition. Reproduced Record at 234a. The architects who testified as expert witnesses for Panar and Nowicki both noted deviations between the building plans and the actual construction performed but lacked personal knowledge as to the reason for the deviations. Reproduced Record at 260a, 316a, 330a-333a.

Since there was evidence of record that the parties had made subsequent oral modifications of their November 5 contract by altering the building specifications and correspondingly, the building costs and building time, the trial court did not err in concluding that the $100,000 restriction in the November 5 contract did not bar Nowicki’s mechanics’ lien claim for materials and labor furnished beyond that amount.

Next, we consider whether the parties’ July 23 written agreement prevents or limits Nowicki’s recovery under its lien claim. Panar regards the July 23 agreement as a substituted contract which discharged any prior agreement of the parties and exclusively established the conditions for Nowicki’s recovery against Panar. Nowicki views the July 23 agreement as an unperformed accord which did not discharge the previous obligations of the parties.

Whether an agreement constitutes a substitute contract or an accord is a matter of interpretation. Hydro-Flex, Inc. v. Alter Bolt Co., 223 Pa.Super. 228, 296 A.2d 874 (1972); Restatement (Second) of Contracts § 279 comment c (1979). Substituted contracts and accords share many traits since both rest upon the elements of a valid contract. Hydro-Flex, Inc.; Gordon Brothers, Inc. v. Kelley, 92 Pa.Super. 485 (1927); Restatement (Second) of Contracts § 279 comment c (1979). Their differentiation lies chiefly in the parties’ intent concerning their respective effect on any prior agreement of the parties. A substituted contract

is a mode of extinguishing one obligation by another, that is, the acceptance of a new promise in satisfaction of a previously existing claim while in the case of an accord and satisfaction it is not the new promise itself but the performance of the new promise that is accepted as a satisfaction.

Gordon Brothers, Inc., 92 Pa.Super. at 491 (citation omitted); Buttonwood Farms, Inc. v. Carson, 329 Pa.Super. 312, 478 A.2d 484 (1984) (a substituted contract displaces and extinguishes an extant valid contract); Lazzarotti v. Juliano, 322 Pa.Super. 129, 469 A.2d 216 (1983) (an accord requires actual payment or performance and is not satisfied by a “mere promise of future performance”). Since a substituted contract is accepted as “satisfaction of a pre-existing duty, [it] thus bar[s] the revival of the pre-existing duty following a breach of the [substituted] contract____” Hydro-Flex, Inc., 223 Pa.Super. at 234, 296 A.2d at 878. However, where the terms of an accord are breached, the non-defaulting party “may enforce the accord, or, ... at his option, enforce the underlying previous] agreement.” Zager v. Gubernick, 205 Pa.Super. 168, 173-74, 208 A.2d 45, 49 (1965); Restatement (Second) of Contracts § 281 (1979).

“The party asserting a ... substituted contract has the burden of proving that the parties intended to discharge the earlier contract.” Buttonwood Farms, Inc., 329 Pa.Super. at 317, 478 A.2d at 486. In the present case, the record does not contain any clear evidence that the parties meant to substitute their July 23 agreement for any previous contract between them. The July 23 agreement does not expressly state that it supplants any other agreement of the parties. Rather, the July 23 agreement sets forth a $5,000 completion fee for work to be performed and declares that the fee represents a discount of more than $30,000 (the amount of Nowicki’s mechanics’ lien claim) for work already performed. The July 23 agreement therefore reveals the underpinnings of an accord.

Legal consideration for an accord arises when the parties have a legitimately disputed claim, and the creditor accepts “ ‘an amount less than the creditor claims to be due____ There must be an honest dispute and a person cannot create a dispute sufficient for the purpose of an accord and satisfaction by a mere refusal to pay a claim undisputed in fact.’ ” Lazzarotti, 322 Pa.Super. at 138, 469 A.2d at 220 (citation omitted). The parties’ trial testimony in the case sub judice shows that Panar had refused to pay several thousand dollars in invoices submitted to it by Nowicki, e.g., Reproduced Record at 39a-41a, and that Panar’s refusal to tender payment resulted from Panar’s contentions that the parties’ November 5 contract confined the parties to a $100,000 budget, that Nowicki’s construction was not workmanlike, and that Nowicki’s invoices unjustifiably exceeded Nowicki’s actual expenses plus the profit margin included in the parties’ November 5 contract. E.g., Reproduced Record at 194a-200a, 270a-75a. Hence, the record discloses an honest dispute between the parties concerning the amount owed by Panar to Nowicki. The July 23 agreement documents Nowicki’s willingness to accept Panar’s payment of $5,000 in forbearance of a suit against Panar for the challenged outstanding balance of Nowicki’s invoices.

Because Panar did not satisfy the accord by tendering $5,000 to Nowicki, Nowicki could elect to enforce either the breached accord or any antecedent agreement of the parties which was to have been discharged by satisfaction of the accord. Zager; Restatement (Second) of Contracts § 281 (1979). In this instance, Nowicki chose to bring a mechanics’ lien claim against Panar for the monies owed for materials and labor furnished under the parties’ antecedent agreement, i.e., the parties’ subsequent oral modifications of their November 5 contract.

Accordingly, we affirm the order of the trial court which awarded Nowicki $37,460.99 on its mechanics’ lien claim against Panar.

Order affirmed.

      . This appeal follows the dismissal of Panar’s timely exceptions to the trial judge’s non-jury trial adjudication.

      . Although Nowicki’s claim was for $38,529.12, the trial court only awarded Nowicki $37,460.99. The difference between the claim and the award reflects the trial testimony of Nowicki’s president and sole shareholder, Allan J. Nowicki, who admitted that Panar had inadvertently been billed for slightly over one thousand dollars in materials that Nowicki had supplied and later removed from the Panar residential work site. Reproduced Record at 56a-57a.

      . Panar also argued before the trial court, and reiterates in this appeal, that Nowicki should not prevail on its lien claim because Nowicki's construction was not workmanlike and because Nowicki’s invoices unreasonably exceeded Nowicki’s actual expenses plus the profit margin to which the parties agreed in their November 5 contract. The trial court found no merit in these arguments. Having carefully reviewed the trial transcript, especially the testimony of the parties’ architectural expert witnesses, we conclude that the trial court did not err in this regard.