author: CERCONE, Judge. DEL SOLE, Judge,

text:
    620 A.2d 1213
    COMMONWEALTH of Pennsylvania, Appellant, v. Lee BROWN.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1992.
    Filed Feb. 25, 1993.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., . appellant.
    Robert A. Crisanti, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and DEL SOLE and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from an order of the Court of Common Pleas of Allegheny County dismissing two counts of an information filed against appellee. The Commonwealth appeals. We reverse.

On September 20, 1990, appellee was riding her bicycle in the wrong lane of Miller Avenue, Clairton, Pennsylvania, and traveling in the wrong direction. As the bicycle weaved down the street, appellee struck an automobile whose driver had attempted to avoid her by swerving his vehicle. After the accident, a state police officer observed a strong odor of alcohol on appellee’s breath. She consented to a blood alcohol test which revealed a blood alcohol content of 0.29 per cent. She also admitted to the police officer that she had been consuming beer.

Based on this incident, the Commonwealth charged appellee by information with two counts of driving under the influence of alcohol or controlled substances, and with riding on the wrong side of the roadway, a summary offense. Appellee filed a motion to dismiss which the lower court granted on May 17, 1991 as to the DUI charges. She entered a plea of guilty to the summary offense. The Commonwealth filed the instant timely appeal of the May 17, 1991 order, in which it raises the following issue:

Whether the trial court erred in holding that bicycles are not “vehicles” for purposes of 75 Pa.C.S.A. § 3731, and therefore, that a person cannot be convicted of driving under the influence for operating a bicycle on a public highway while under the influence of alcohol or controlled substances?

Before examining the merits of appellant’s contention, we will first set forth our standard of review. The decision to grant or deny a motion to quash an information or indictment “is within the sound discretion of the trial judge and will be reversed on appeal only where there has been a clear abuse of discretion.” Commonwealth v. Niemetz, 282 Pa.Super. 431, 439, 422 A.2d 1369, 1373 (1980). Accord Commonwealth v. Gemelli 326 Pa.Super. 388, 474 A.2d 294 (1984).

Because this case presents a question of the proper interpretation of a legislative enactment, we will review the relevant rules of statutory construction. The cardinal principle in interpreting legislative enactments is “to ascertain and effectuate the intent of the General Assembly.” 1 Pa.C.S.A. § 1921(a). When the words of a statute are clear and free from all ambiguity, the letter of the law is not to be disregarded under the pretext of pursuing its spirit. Id. § (b). A court interpreting a statute must ascertain and effectuate the intention of the legislature and give full effect to each provision of the statute if at all possible. Fireman’s Fund Insurance Company v. Nationwide Mutual Insurance Company, 317 Pa.Super. 497, 464 A.2d 431 (1983). “When the words of a statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:”

(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute. s

1 Pa.C.S.A. § 1921(c).

The statute which requires interpretation herein is section 3731 of the Motor Vehicle Code, 75 Pa.C.S.A. § 101 et seq., which provides:

(a) Offense defined.—A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
(2) under the influence of any controlled substance, as defined in the Act of April 14, 1972 (P.L. 233, No. 64), known as “The Controlled Substance, Drug, Device and Cosmetic Act,” to a degree which renders the person incapable of safe driving;
(3) under the combined influence of alcohol and any controlled substance to a degree which renders the person incapable of safe driving; or
(4) the amount of alcohol by weight in the blood of the person is 0.10 percent or greater.

Id. § 3731 (emphasis added). The issue presented by this case is whether section 3731 applies to an individual operating a bicycle, as opposed to a motor vehicle.

Keeping in mind the principle that a statute must be construed to give effect to all of its parts, we note the definitions of “vehicle” and “motor vehicle” as set forth in the Vehicle Code. A “vehicle” is defined as “[e]very device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks.” 75 Pa.C.S.A. § 102. “Motor vehicle” is defined as “[a] vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated upon rails.” Id.

Section 3731 prohibits the driving or operating of a “vehicle” while under the influence of alcohol. A bicycle clearly falls within the confines of that definition. It is a “device” upon which a person or property may be “transported or drawn upon a highway,” and it is not a device which is “used exclusively upon rails or tracks.” See § 102, supra (“vehicle”). A bicycle is clearly not a motor vehicle as it is a vehicle “which is propelled solely by human power.” Cf. id. § 102 (“motorcycle,” “motor-driven cycle,” and “motorized pedalcycle”). However, it is the operators of vehicles, not the operators of motor vehicles, who are regulated under section 3731. Since section 3731 applies to the operators of vehicles, and since the bicycle which appellee was riding falls within the definition of that term, the lower court erred in holding that appellee could not be prosecuted under section 3731 for operating her bicycle while purportedly under the influence of alcohol.

In dismissing the charges against appellee under section 3731, the lower court delved into the legislative history of the Vehicle Code and determined that the history demonstrated that the operators of bicycles are excluded from regulation under section 3731. This was error. The meaning of the word “vehicle” as set forth in section 3731 is defined within the Vehicle Code. See § 102, “vehicle,” supra. Cf. § 102, “motor vehicle,” supra. By utilizing the statutory definition, it is possible to eliminate any ambiguity which surrounds the term “vehicle” in section 3731. It is therefore not necessary to consult legislative history to determine the meaning of the term. See 1 Pa.C.S.A. § 1921(c) (when words of statute are not explicit, legislative history may be reviewed to determine legislative intent).

Furthermore, the excerpt of legislative history cited by the trial court does not support the interpretation which the lower court adopted. A close examination of that excerpt reveals that section 3731 was not under discussion during that excerpt from the House proceedings. Rather, the legislators were addressing amendments to certain parts of the Vehicle Code relating to the registration of vehicles. See House Journal 1976, at 3884-3904. The comments of Mr. Bonetto concerning bicycles must be viewed in that context.

For these reasons, we hold that the lower court abused its discretion in dismissing the charges against appellee under section 3731.

Order reversed; ease remanded for further proceedings in accordance with this memorandum; jurisdiction relinquished.

DEL SOLE, J., files a concurring statement.

DEL SOLE, Judge,

concurring.

I join the opinion of my distinguished colleague, Judge Cercone. I only wish to point out that the Vehicle Code evidences the Legislature’s understanding that the word “vehicle” does include bicycles.

At 75 Pa.C.S.A. § 1101, all vehicles are required to be titled except those exempted in § 1102. There, in subparagraph 7, vehicles “moved solely by human or animal power” are excluded from this requirement. This same limitation also applies to the registration requirements of § 1301 et. sec. These sections demonstrate to me that the members of the General Assembly fully understood that bicycles were included in the definition of “vehicle” when used in § 3731.

      . 75 Pa.C.S.A. §§ 3731(a)(1) and (a)(4).

      . Id. § 3505.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    620 A.2d 1216
    Edwin M. NEMOTO v. Ellen T. NEMOTO, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1992.
    Filed Feb. 26, 1993.

      . Ann L. Begler, Pittsburgh, for appellant.
    Murray A. Felder, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a final decree in divorce entered December 30, 1991 in the Court of Common Pleas of Allegheny County. For the reasons set forth below, we affirm.

The parties are in agreement regarding the procedural history of the instant case. Edwin Nemoto (hereinafter “husband”) initiated the divorce proceeding underlying this appeal in November of 1988. The divorce complaint included a claim for equitable distribution of the marital property. Defendant/wife, Ellen Nemoto (hereinafter “wife”), filed an answer and counterclaim seeking equitable distribution, designation of beneficiary on certain insurance policies, the right to live in the marital residence, custody, spousal support, alimony pendente lite, alimony, child support, counsel fees and expenses. Husband filed an answer to counterclaims, and the discovery process ensued. On November 13, 1989, a consent order was entered directing husband to pay alimony pendente lite in the amount of $1,800 per month and a wage attachment was entered.

A trial was held before the Honorable Max Baer on November 7 and 8, 1990. Judge Baer entered a decree nisi on November 26, 1990 and delivered an adjudication in open court on that date. Wife timely filed a motion for post-trial relief to which husband timely responded. Husband also filed both a motion for post-trial relief and an amended motion for post-trial relief. After the parties filed appropriate briefs, oral argument was held on March 22, 1991. The trial court entered a Qualified Domestic Relations Order which was dated December 30,1991 and filed January 2, 1992. Wife thereafter presented a motion to compel payment of funds and to continue alimony pendente lite in the amount of $1,800 per month. The trial court denied wife’s request without prejudice to her right to renew the petition in the event she took an appeal. A divorce decree and a final decree on the property issues were both entered January 2, 1992 but dated December 30, 1991. On January 2, 1992 the trial court also entered an order directing husband to pay alimony to wife in the amount of $600 per month for “an indefinite period.”

Wife timely filed her notice of appeal on January 27, 1992. She also filed a petition to stay alimony and reinstate alimony pendente lite. However, the trial court denied wife’s requests on February 6, 1992.

Our review of the trial transcripts and Judge Baer’s adjudication of record, discloses that the parties were married on June 20, 1965 in their native state of Hawaii. Two children were adopted by the couple during the term of the marriage, John and Julie Nemoto, who were aged 19 and 17 respectively at the time of trial. Both husband and wife have obtained bachelor’s degrees. Husband has also earned both a master’s degree and a doctorate from Rutgers University. Wife provided substantial financial support for husband throughout the term of his tertiary studies. Husband is currently employed by the University of Pittsburgh in an unspecified capacity connected with the Department of Anesthesiology, a subdivision of the University’s School of Medicine.

From 1972 through 1984, wife was not gainfully employed outside the house, but remained home to rear the couple’s children. However, wife obtained paid work as a receptionist in 1985 because the parties went through a temporary separation. This employment ceased after the parties were reconciled. The parties separated finally on March 1, 1987. See Opinion of Court dated November 26,1990 (filed 4/14/92) at 8-9. With husband’s financial assistance, wife subsequently sought retraining which would enable her to obtain work in the field of Health Records Administration.

The timely appeal filed by appellant wife has raised the following three issues:

A. The lower court erred as a matter of law and/or abused its discretion through the misapplication of the factors set forth in Section 3701 of the Pennsylvania Divorce Code, resulting in an insufficient alimony award to wife of only $600.00 per month.
B. The lower court erred as a matter of law and/or abused its discretion when it set limitations upon the right to seek a modification in the future and established in its opinion the criteria that would govern future modifications.
C. The lower court erred as a matter of law and/or abused its discretion in failing to continue [wife’s] existing order of alimony pendente lite during the pendency of all appeals.

We shall consider these questions in the order in which they were raised.

Appellant wife first contends that the trial court erred by misapplying the factors set forth in section 3701 of the Divorce Code when setting the amount of alimony to be awarded. In evaluating a question of this type, our standard of review is limited to a determination of whether the trial court abused its discretion. Viles v. Viles, 416 Pa.Super. 95, 103, 610 A.2d 988, 992 (1992). An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence. Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). Moreover, an abuse of discretion is not merely an error of judgment. Id. at 190 n. 2, 488 A.2d at 615 n. 2. It exists if the law is overridden or misapplied, or if the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record. Id.

The Superior Court is not free to usurp the trial court’s duty as the finder of fact. Edelstein v. Edelstein, 399 Pa.Super. 536, 540, 582 A.2d 1074, 1076 (1990), allocatur denied, 528 Pa. 611, 596 A.2d 157 (1991). We are nevertheless obligated to review the proceedings thoroughly. Id. Since an abuse of discretion will be found by this court only if the trial court failed to follow proper legal procedure or misapplied the law, we must examine appellant’s allegations and the trial court’s decision in accordance with the above standard. See Braderman, supra.

The purpose of alimony is not to reward one party and to punish the other, but rather to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met. Grandovic v. Grandovic, 387 Pa.Super. 619, 629, 564 A.2d 960, 965 (1989). Alimony following divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate employable skill. Id. It is appellant’s belief that the trial court has not demonstrated a proper balance in its approach to effectuating “economic justice” between the parties. To advance this proposition, appellant wife has presented a detailed analysis of certain factors listed at 23 Pa.C.S.A. § 3701(b). We have carefully considered the arguments advanced by both parties concerning the relevant sub-sections of the Divorce Code. We have also scrupulously inspected the extensive certified record in this case. However, we have found no indication that the trial court has committed an “abuse of discretion” as that phrase is defined by our law. The well reasoned and highly detailed explanations provided by the Honorable Max Baer correctly dispose of the points raised by appellant wife, and we affirm on that basis. See Opinion of Court dated November 26, 1990 (filed 4/14/92) and Opinion of Court in Support of Final Decree dated May 15, 1992 (filed 5/19/92).

Appellant next argues that the trial court committed an error of law and abused its discretion by setting a limitation upon her right to seek an upward modification of alimony based solely upon income increases which appellee husband may achieve in the future. The challenged provisions were set forth by the trial court in the Final Decree of December 30, 1991:

3. Wife is awarded additional alimony upon the following terms and conditions:
a. From the Closing Date for an indefinite period, Husband shall pay to Wife alimony in the amount of $600.00 a month.
b. This award of alimony shall not increase regardless of any increase in Husband’s net income.
c. Husband may seek a reduction or termination of alimony in the event of a substantial and continuing decrease in his net income or a substantial and continuing increase in Wife’s net income.
d. Wife may seek modification in the event of substantial and continuing increase in her reasonable needs or a substantial and continuing decrease in her net income.
e. This Court has assumed, based upon the totality of the record, that Wife’s current net income from employment is $1,200.00 a month. Accordingly, should Wife’s net income be substantially more or less, such fact may justify modification in accordance with the above set forth criteria. This Court recognizes that Wife will be receiving investment income from the $100,000.00 awarded to her as part of equitable distribution, and therefore the receipt of such investment income shall not constitute a change of circumstances justifying a modification of alimony.
f. This Court has assumed, based upon the totality of the record before it, that Husband’s net income after his funding of his pension is approximately $4,300.00 a month.
4. In awarding additional alimony in accordance with Wife’s Post Trial Motions, this Court reviewed all the factors set forth in 23 Pa.C.S.A. § 3701(b). In particular, it considered that this was a 22 year marriage prior to separation during which Husband continuously was employed, and Wife primarily served as a homemaker. Both parties are now approximately 48 years of age, and because of this employment history, Husband’s relative earnings and earning capabilities are far greater than Wife’s. Wife’s reasonable needs based upon the standard of living established during the marriage are such that even with this Court’s equitable distribution award she lacks sufficient income to meet those needs. This Final Decree accordingly effectuates economic justice between the parties.

Final Decree dated December 30, 1991 (entered January 2, 1992) at 2-3.

The Opinion in Support of Final Decree clarifies as follows the trial court’s intent concerning modification of alimony:

[T]he Court does not believe that based upon the totality of these factors, that wife deserves to share in husband’s future increases in earnings which are coming as a result of his employment. Thus, the Court provided that the alimony would not increase, regardless of an increase in the husband’s income.
The court does believe that its award carefully considered the amount of income husband made as of time of trial, and if there was a substantial and continuing decrease in his net income or a substantial and continuing increase in wife’s net income, that it would be appropriate to modify or, indeed, terminate alimony.
It is the Court’s intent and I certainly do not hesitate to state on the record, to terminate this alimony at some point in the future when wife’s reasonable needs can be met through her own income.

Opinion of Court in Support of Final Decree, supra, at 11-12. It is appellant’s theory that the trial court has worked an economic injustice through these provisions since appellant will be precluded from benefiting each time husband earns a pay raise. Despite our sympathy with appellant’s situation, we are unable to grant the relief she requests.

As we have already explained, the purpose of alimony is not to punish one spouse and reward the other. Grandovic v. Grandovic, 387 Pa.Super. at 629, 564 A.2d at 965. The purpose of alimony is to ensure that the reasonable needs of a dependent spouse are met. Steinmetz v. Steinmetz, 381 Pa.Super. 440, 448, 554 A.2d 83, 86 (1989). Here, the learned trial judge has crafted a scheme of equitable distribution and alimony which carefully weighs and balances appellant’s reasonable need for assets as well as for current and future income in conjunction with her ability to provide for herself. When the language of the several orders entered by Judge Baer in this case is considered dispassionately, it is clear that the trial court has recognized appellant’s continuing need for additional income for the foreseeable future in order that economic justice between the parties may be effectuated.

The challenged order correctly stresses the point that alimony is properly based on the reasonable needs of the recipient and may not be premised solely upon the relative prosperity of the payor. The trial court has not closed the courtroom door upon appellant. Instead, Judge Baer’s order explicitly provides for the contingency that appellant wife’s reasonable need for income may increase in the future. If the conditions of appellant’s life change so that she requires additional financial assistance to meet her reasonable needs, she will be free to petition the court for increased alimony. She is merely barred from abusing the limited resources of the courts in an attempt to gain funds for which she can demonstrate no reasonable need. In consideration of the specific circumstances of this case, we conclude that the trial court’s order constitutes neither an error of law nor an abuse of discretion prejudicial to appellant.

Finally, appellant complains that the trial court erred by failing to continue the existing order of alimony pendente lite (“APL”) during the pendency of all appeals. Appellant contends that Pennsylvania law entitles her to continue receiving APL until all her appeal rights have been completely exhausted. This is not a fully accurate characterization of our law, however.

Under the Divorce Code, alimony pendente lite is allowable to either spouse during the pendency of the divorce action. 23 Pa.C.S.A. § 3702. A grant of APL by the trial court is not a matter of right to either party. Rather, “APL is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets which are the financial sinews of domestic warfare.” DeMasi v. DeMasi, 408 Pa.Super. 414, 420, 597 A.2d 101, 104 (1991).

Unquestionably, the termination of litigation involving divorce and equitable distribution matters results in the cessation of an APL order. Id. at 423, 597 A.2d at 105. This rale does not mean, however, that only the termination of the litigation may mark the end of APL. If, after careful review, the trial judge determines that the spouse who has been receiving APL has acquired assets or income which sufficiently equalizes the financial resources of the parties to pursue the action, APL may be discontinued. See Spink v. Spink, 422 Pa.Super. 126, -, 619 A.2d 277, 279 (1992). The Superior Court will uphold the trial court’s action in this regard where the factual findings are supported in the certified record. Id.

We recognize that in this case, appellant’s earning capacity and actual income is less than that of appellee. The record clearly indicates that this situation is unlikely to change in the future. Nevertheless, the record also discloses that appellant now has adequate assets and income available to her through equitable distribution, alimony, and her own earning capacity so that she may litigate the case as she chooses. We find no basis upon which to overrule the trial court’s holding.

Order affirmed.

      . Judge Baer has not filed a separate opinion in the instant case, preferring to rely on the transcripts of his adjudications. See N.T. 11/26/90 (filed 4/14/92) and N.T. 5/15/92 (filed 5/19/92).

      . This award may be modified either upward or downward upon party motion if the existence of certain conditions specified in the December 30th order are demonstrated to the trial court.

      . The record does not designate whether Dr. Nemoto is classified as staff or faculty, or explain his exact function with the Department of Anesthesiology.

      . At the time this case was before the trial court, wife hoped to complete her schooling by mid-1991 and planned to immediately seek employment upon graduation. The trial court found that wife could reasonably expect to earn an initial salary of $18,000 per year. See Opinion of Court dated November 26, 1990 (filed 4/14/92) at 5-6.

      . Specifically, appellant has analyzed the facts of the case under subsections (b)(1) (relative earnings and earning capacities of the parties), (b)(2) (ages and physical, mental and emotional conditions of the parties), (b)(3) (sources of income of both parties), (b)(5) (duration of the marriage), (b)(6) (contribution by one party to the education, training or increased earning power of the other party), (b)(7) (extent to which the earning power, expenses or financial obligations of the parties will be affected by reason of serving as the custodian of a minor child), (b)(8) (standard of living of the parties established during the marriage), (b)(9) (relative education of the parties and time necessary to acquire sufficient education or training to enable the parties seeking alimony to find appropriate employment), (b)(10) (relative assets and liabilities of the parties), (b)(12) (contribution of spouse as homemaker), (b)(13) (relative needs of the parties), (b)(14) (marital misconduct), (b)(15) (tax ramifications), (b)( 16) (whether the person seeking alimony lacks sufficient property to provide for reasonable needs), and (b)(17) (ability of the party seeking support to achieve self-support through appropriate employment).

      . We are cognizant that the parties have not challenged the trial court’s division of the marital property in the instant case. However, we cannot view an order granting alimony in isolation from a trial court's equitable distribution scheme because the relative assets of the parties is one factor which must be considered by the lower court in the alimony context. See 23 Pa.C.S.A. § 3701(b)(10). This does not mean that a dependent spouse suffers from some sort of “double debit” when he or she acquires assets via equitable distribution. It does mean that the totality of the assets and income actually available to the dependent spouse must be fairly evaluated, regardless of the source from which they derive. Id. In the instant case, the trial court granted appellant wife slightly more than 75% of the couple’s marital assets which totalled approximately $205,000. This court recognizes that appellant wife received a substantial portion of husband's pension fund, the value of which is not immediately available to her. See Decree Nisi dated November 26, 1990 at ¶ 1 and 2 (incorporated by reference into the Final Decree dated December 30, 1991).

      . Appellant’s brief also mentions the fact that the trial court failed to award counsel fees and expenses to her. See Appellant's brief at 46. Such a statement hardly constitutes the type of developed argument necessary to preserve an issue on appeal. See Pa.R.A.P., Rule 2119(a), 42 Pa.C.S.A. We note, purely for the sake of discussion, that the trial court is empowered to grant a litigant sufficient funds to pay for counsel fees and expenses in a proper case. 23 Pa.C.S.A. § 3702. However, the purpose of such an award is not to punish one spouse or to reward the other. Hoover v. Hoover, 288 Pa.Super. 159, 161, 431 A.2d 337, 338 (1981). Reasonable attorney fees and expenses are to be paid upon a demonstration of actual need so that both parties are placed on a par in defending their rights. Id. The simple fact that one spouse earns more than the other does not automatically entitle the dependent spouse to receive counsel fees or expenses. Id. Rather, there must be a showing that the spouse who earns less needs the relief in order to adequately defend his or her rights. Id. at 162, 431 A.2d at 338. As previously discussed, the record in the instant case supports the trial court’s conclusion that appellant now possesses adequate resources to protect her rights via litigation.


author: CERCONE, Judge: DEL SOLE, Judge,

text:
    620 A.2d 1222
    Robert AMICONE, Appellant, v. Judith SHOAF, Donald Affinito and Denny’s, Inc.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1992.
    Filed Feb. 26, 1993.

      Joanne Amicone, Ligonier, for appellant.
    John A. Robb, Jr., Pittsburgh, for appellees.
    Before ROWLEY, President Judge, and DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

Sausage and eggs!

Sausage and eggs!

$2.02 he refused to pay

So now in court it’s for us to say.

Sausage and eggs!

It wasn’t the price

The parties contend

It’s the principle, they pretend.

Sausage and eggs! $2.02 involved

A sum so easily resolved

But no give or take here

They insist on a legal atmosphere.

Oh, in Uncle Sam’s land

Any person in court may protest

But, dear Lord, the Judge says

From this test, please give me rest.

This case belongs in the “believe it or not” category. In better hands, the literature that could be inspired by the facts of this case would qualify this matter for admission into “cause celebre” status. Unfortunately, not being ready for such an exertion, we shall proceed to “link” the facts and law in a more mundane fashion.

In this case, appellant challenges the order of the trial court which denied his motions for post-trial relief and for removal of the compulsory nonsuit entered against him. For the reasons set forth below, we affirm.

This case arises from a dispute over the value of sausage at a Denny’s Restaurant. On October 6, 1988, appellant and a companion ordered breakfast at Denny’s Restaurant located in Irwin. Dissatisfied with the state of the sausage, both customers returned their portions to the kitchen. Assistant Manager Judith Shoaf, the appellee herein, offered to deduct a total of one dollar and twenty cents ($1.20) from their bill for the unsatisfactory sausage. Appellant, referring to the a la carte price of sausage on the menu, disputed this amount insisting that three dollars and twenty cents ($3.20) be deducted from the bill. Tendering four dollars ($4.00) as payment for the two breakfasts, appellant left his name, address and phone number with the restaurant and departed.

Shoaf subsequently contacted the Irwin Borough Police Department who sent Officer William Holman to investigate the matter. In the course of his investigation, Officer Holman contacted appellant and asked him to pay the two dollars and two cents ($2.02) allegedly due and owing on his bill. When appellant refused, he was charged with theft of services, a summary offense which the District Justice dismissed. Appellant then filed a civil action for malicious prosecution. At the close of appellant’s case, the trial court granted appellees’ motion for nonsuit. Appellant timely filed motions for posi> trial relief and to remove the nonsuit, which the trial court denied. This timely appeal followed.

Appellant raises the following issues for our review:

[1.] Did the [lower] Court err in finding that the Defendants had probable cause to instruct, instigate, encourage and continue the criminal prosecution of the Plaintiff?
[2.] Did the [lower] Court err in finding that the Defendants had probable cause to instigate the criminal prosecution of the Plaintiff based on a presumption in the criminal statute, which presumption is unconstitutional?
[3.] Did the [lower] Court err in admitting evidence of Plaintiffs prior conduct at the Defendant’s restaurant?
[4.] Did the [lower] Court err in refusing to admit evidence of gratuitous food and beverages provided by the Defendants to local police officers prior to the commencement of the trial on a Motion in Limine?

We will address these issues in order.

Appellant first argues that the evidence was sufficient to show that appellees instigated, aided and continued the criminal prosecution of appellant without probable cause. The trial court’s finding in this regard was two-fold. First, the trial court found that the criminal charge of theft was filed against appellant by Officer Holman, not by appellees. Second, the trial court concluded that appellant failed to establish that the charge was brought against him without probable cause. Even assuming, arguendo, that appellees had instigated, aided and continued the prosecution of appellant, we agree with the trial court that appellant failed to establish an essential element of malicious prosecution, ie., the absence of probable cause.

In order to prevail on a claim of malicious prosecution, the plaintiff must show that the defendant initiated or procured the institution of criminal proceedings against plaintiff (1) without probable cause; (2) with malice; and (3) the proceedings must have terminated in favor of the plaintiff. Kelley v. General Teamsters, Chauffeurs, and Helpers, Local 249, 518 Pa. 517, 520-21, 544 A.2d 940, 941 (1988); Shelton v. Evans, 292 Pa.Super. 228, 232, 437 A.2d 18, 20 (1981). In the instant case, it is undisputed that appellant was acquitted of the underlying criminal charge thereby establishing the third element. Moreover, the second element, malice, may be inferred by the absence of probable cause. Kelley v. General Teamsters, 518 Pa. at 521, 544 A.2d at 941. Therefore, appellant must establish that appellees initiated or procured the institution of criminal proceedings against him without probable cause in order to sustain his claim of malicious prosecution.

Our Supreme Court has defined probable cause as “a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that the party is guilty of the offense.” Miller v. Pennsylvania R.R. Co., 371 Pa. 308, 310, 89 A.2d 809, 811-12 (1952). Accord Kelley v. General Teamsters, 518 Pa. at 523, 544 A.2d 940, 942 (1988). The existence of probable cause is usually a question of law for the court to decide, but the issue may be submitted to the jury when the facts material to the issue of probable cause are in controversy. Kelley v. General Teamsters, 518 Pa. at 523, 544 A.2d at 941. Where probable cause is found to exist, the defendant’s motive is not material. Bruch v. Clark, 352 Pa.Super. 225, 230, 507 A.2d 854, 856 (1986); De Salle v. Penn Central Transportation Corp., 263 Pa.Super. 485, 490, 398 A.2d 680, 683 (1979).

In the underlying criminal case, appellant was charged with the crime of theft of services. The Crimes Code defines the crime of theft of services as follows:

(a) Acquisition of Services.—
******
(4) Where compensation of service is ordinarily paid immediately upon the rendering of such service, as in the case of hotels and restaurants, refusal to pay or absconding without payment or offer to pay gives rise to a presumption that the service was obtained by deception as to intention to pay.

18 Pa.C.S.A. § 3926(a)(4). After reviewing the record, we are convinced that the trial court correctly found the evidence sufficient to establish probable cause thereby justifying appellees’ initiation of criminal proceedings against appellant.

The following evidence was not disputed at trial. Appellant and his companion returned uneaten sausage to the kitchen at Denny’s Restaurant. N.T. 6/3-4/91 at 130. When asked, appellant and his companion refused the waitress’ offer to reheat the sausage or provide a replacement. Id. When the bill arrived, appellant and the waitress, and later appellant and the assistant manager disputed the amount charged for two breakfasts, minus the sausage. Id. at 130-32. The assistant manager informed appellant that the cost of the two breakfasts, minus the sausage, totaled six dollars and two cents ($6.02). Id. at 137. Appellant argued that the total cost should be three dollars and ninety one cents ($3.91). Id. Appellant tendered only four dollars ($4.00) and requested a receipt and change. Id. When the waitress refused the four dollars as payment in full, appellant left the four dollars on the counter along with his name and address and departed. Id. at 138-39.

The above facts, taken together, are more than sufficient to establish that appellant refused to pay the amount listed on the bill for the two breakfasts giving rise to the presumption that the service was obtained by deception as to intention to pay. As the prior criminal prosecution was based upon probable cause, the malicious prosecution action brought by appellant was defeated due to the absence of an essential element.

Next, appellant argues that the trial court improperly found that appellees had probable cause to initiate his criminal prosecution “based on a presumption in the criminal statute, which presumption is unconstitutional.” Apparently, appellant challenges the constitutionality of 18 Pa.C.S.A. § 3926(a)(4). However, this issue was not raised in appellant’s post-trial motions nor was it addressed by the trial court. It is well-settled that issues may not be raised for the first time on appeal. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. Accordingly, this issue is waived.

Next, appellant contends that the trial court improperly admitted evidence of his prior conduct at Denny’s Restaurant. Specifically, appellant contends that (1) evidence of other acts, even of a similar nature are not competent to prove the commission of a particular act; and (2) that character evidence is not admissible in a civil case unless it is a material issue in the case. We note that although appellant raised this issue in his post-trial motions, he did not argue it in his brief supporting his post-trial motions, nor did the trial court address this issue in its opinion. Therefore, the issue is waived on appeal. Mamone v. Beltone Hearing Aid Services, Inc., 416 Pa.Super. 555, 559, 611 A.2d 755, 757 (1992); Cucchi v. Rollins Protective Services Co., 377 Pa.Super. 9, 19, 546 A.2d 1131, 1136 (1988), rev’d on other grounds, 524 Pa. 514, 574 A.2d 565 (1990).

Finally, appellant argues that the trial court improperly granted appellees’ Motion in Limine and excluded evidence of gratuitous food and beverages provided by appellees to local police officers prior to trial. Once again, our review of the record discloses that appellant raised this issue in his post-trial motions, but failed to brief or argue it before the trial court. Additionally, the trial court did not address this issue in its opinion dated March 30, 1992. Accordingly, the issue is waived. Mamone v. Beltone Hearing Aid Services, Inc., supra; Cucchi v. Rollins Protective Services Co., supra. Preserve us from more of this!

Order affirmed.

DEL SOLE, J. files a concurring statement.

DEL SOLE, Judge,

concurring.

I concur in the result reached by the Majority. I believe the discussion of probable cause is unnecessary. The charges were filed by the Irwin police after their independent investigation, not by appellees. This alone is sufficient to warrant the non-suit.

      . Moreover, after reviewing the certified record, it is apparent that appellant failed to notify the Attorney General of his challenge to the constitutionality of 18 Pa.C.S.A. § 3926(a)(4) pursuant to Pa.R.A.P., Rule 521(a), 42 Pa.C.S.A. Accordingly, the issue is waived.


author: POPOVICH, Judge:

text:
    620 A.2d 1226
    COMMONWEALTH of Pennsylvania, Appellee, v. Sampson BRINKLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1992.
    Filed March 1, 1993.

      William E. Ruane, Radnar, for appellant.
    William R. Toal, III, Asst. Dist. Atty., Havertown, for Com., appellee.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   POPOVICH, Judge:

We are asked to review the judgment of sentence (3 to 6 years imprisonment) for possession with intent to deliver a controlled substance (cocaine) by the appellant, Sampson Brinkley. We affirm.

The first issue we address relates to a claimed error on the part of the court below in denying the appellant’s motion to suppress. In reviewing such a claim, we must 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. Commonwealth v. Kichline, 468 Pa. 265, 280-82, 361 A.2d 282, 290 (1970). If the record supports the factual findings of the suppression court, as well as the legitimacy of the inferences and legal conclusions drawn from those findings, they may not be disturbed on appeal. Commonwealth v. O’Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061, cert. denied, 439 U.S. 990, 99 S.Ct. 589, 58 L.Ed.2d 664 (1978). “It is, however, exclusively the province of the suppression court to determine the credibility of witnesses and the weight to be accorded to their testimony.” Commonwealth v. Neely, 298 Pa.Super. 328, 341, 444 A.2d 1199, 1205 (1982).

Consistent with the preceding, our review of the evidence establishes that at approximately 10:00 a.m. on March 2, 1991, the City of Chester police department was conducting a surveillance of Tenth and Upland Streets, an area known for cocaine sales. Sergeant Finnegan, as part of the team, was stationed on Upland Street with binoculars in hand and strategically situated to be able to observe Rose, Eleventh and Tenth streets, the last of which had the most activity and “very well known ... for the sales of cocaine.”

Sergeant Finnegan observed the appellant standing on the corner of Tenth and Upland wearing a brown leather jacket and white shirt. The sergeant “believed” the appellant possessed a bag of cocaine. This was premised upon the appellant holding a plastic bag containing a white substance. The bag was in the appellant’s hand, and he was looking at it at eye-level. This information was transmitted by radio to other officers in the vicinity, Officer Dennis McIntyre and Sergeant Wendell Butler.

Officer McIntyre, a fifteen-year veteran of the police force, was seated in an unmarked vehicle situated in the 900 block of Potter Street with a clear view of the Tenth Street intersection. Within fifteen minutes of the broadcast, Officer McIntyre saw the appellant turn the corner at Tenth Street at a fast rate, walking toward the officer.

While the appellant was walking, Officer McIntyre saw him turn three times and look over his shoulder. With the last glance behind him, the appellant grabbed an object from his right side and brought it across his chest and placed it inside the left, breast pocket of his jacket. During these movements, Officer McIntyre noticed a large bag of white powder in the palm of the appellant’s hand. Also, from the witness’ knowledge of narcotics, he testified that individuals in possession of drugs “usually hold the ... bag up ... and ... pluck it to check the weight or the quality....”, just as Sergeant Finnegan had described the appellant’s behavior.

When Officer McIntyre was asked what prompted him to believe that the appellant was in possession of narcotics, he stated that suspicion arose from the appellant walking at such a fast pace and looking over his shoulder repeatedly. And, when a Ford Bronco undercover vehicle driven by Sergeant Butler and Officer Sendek crossed Potter Street, the appellant, at a distance of no more than twenty feet from Officer McIntyre, was observed moving a “white package” from his right side into his inside left, breast jacket pocket. At this point, Officer McIntyre believed the white object to be a controlled substance.

Because Officer McIntyre was facing the opposite direction (on a one-way street) from where the appellant was walking, he asked Sergeant Butler and Officer Sender to apprehend the appellant. The two stopped the appellant, identified themselves, advised him they suspected he was in possession of drugs and patted him down for protection purposes.

During the pat-down of the appellant, Sergeant Butler “felt [a lumpy type] bulge in the left pocket”, which he suspected was a controlled substance. Once the object was removed— two and one-half bags containing small, individual bags of white rock and powder—it was field-tested and found to be cocaine. The appellant was charged and found guilty of possession with intent to deliver a controlled substance. Post-trial motions were denied and the appellant was sentenced. This appeal was perfected and challenges the denial of the motion to suppress and the sufficiency of the evidence.

As for the suppression issue:

It is axiomatic that the validity of a warrantless arrest is determined by considering “whether, at the moment the arrest was made, the officer had probable cause to make it,” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964), and the person arrested is believed to be the guilty party. See Commonwealth v. Walker, 348 Pa.Super. 207, 501 A.2d 1143 (1985), allocatur denied; Commonwealth v. Pytak, 278 Pa.Super. 476, 420 A.2d 640, 644 (1980). It is only the probability of criminal activity that is the standard of probable cause. This means less than the evidence which would justify conviction, or even a prima facie showing of criminal activity; but more than a mere suspicion. See Commonwealth v. Murray, 437 Pa. 326, 263 A.2d 886 (1970). Specifically, we have stated:
Probable cause is a flexible, commonsense standard. As the Supreme Court in Texas v. Brown, supra [460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)] commented [460 U.S. at 741] 103 S.Ct. at 1543:
It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288 [69 L.Ed. 543] (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, non-technical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311 [93 L.Ed. 1879] (1949).
Moreover, when examining a particular situation to determine if probable cause exists, a court must consider all factors and not concentrate on any individual element. Furthermore, it is important to focus on the circumstances as seen through the eyes of a trained officer and not to view the situation as an average citizen might. Finally, probable cause does not deal in certainties; rather, a court is faced with the factual and practical consideration of everyday life which affect how reasonable and prudent men act. See Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701, 705 (1982); Commonwealth v. Tolbert, 235 Pa.Super. 227, 230, 341 A.2d 198, 200 (1975).
Commonwealth v. Kendrick, 340 Pa.Super. 563, 490 A.2d 923, 927 (1985). Accord United States v. Lima, 819 F.2d 687, 688 (7th Cir.1987).

Commonwealth v. Mallory, 418 Pa.Super. 614, 614 A.2d 1174, 1176 (1992).

Examined in view of the remarks in Mallory, supra, we find the evidence to be consistent with the suppression court’s ruling; namely:

1) Tenth and Upland Streets were “notorious” areas for cocaine sales;
2) Three to four drug arrests had been made earlier the same day in the area where the apprehension and arrest of the appellant took place;
3) Appellant was observed on the most active corner of Chester, Pennsylvania (Tenth Street) holding at eye level a plastic bag believed to contain cocaine by an eighteen-year veteran of the police force, five years of which were spent in narcotics;
4) Within fifteen minutes of the first sighting of the appellant, he was observed walking at a fast pace, repeatedly looking over his shoulder while walking away from Tenth and Upland Streets;
5) Officer McIntyre witnessed the appellant moving a large, white plastic package from his right side to the left inside portion of his jacket; and
6) Officer McIntyre, a fifteen-year veteran of the police department, who had observed hundreds of packages containing cocaine and participated in dozens of cocaine arrests, believed the appellant to be in possession of cocaine.

Sergeant Butler, being privy to all of the aforesaid as a result of participating in a joint surveillance to apprehend purchasers and dealers of drugs, was entitled to rely on the predicate for Sergeant Finnegan’s and Officer McIntyre’s belief that the appellant was in possession of drugs so as to justify the warrantless search of his person and the seizure of the drugs contained inside his jacket. Cf. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

This issue is a close one, but we believe that the totality of the circumstances point to sufficient probable cause to link the clear plastic bag (containing a white substance) with criminal activity. We stated as much in this Court’s recent decision of Mallory, supra. Although Mallory does not deal with the cumulative effect of sightings of several officers and then-impact upon a recipient of the information as a basis for an arrest, we find that the precepts recounted therein, as to warrantless arrests, are germane to the ultimate disposition of the case at bar. Accordingly, we are not persuaded to overrule the suppression court’s order denying the appellant his motion to invalidate the police officers’ actions and evidence seized as a result thereof. Id.; Whiteley, supra.

Lastly, we will respond to the claim of the appellant that the evidence was insufficient to establish guilt for possession with intent to deliver a controlled substance. We have examined the evidence, in a light most favorable to the verdict-winner and availing the Commonwealth all favorable inferences to be drawn therefrom, and hold, in quantity and quality, that the evidence is sufficient to sustain the appellant’s conviction and judgment of sentence.

Judgment of sentence affirmed.

      . Officer McIntyre had made “dozens” of arrests for Act 64 (drug) violations involving cocaine. Also, the officer had on "hundreds of occasions” the opportunity to see cocaine packaged, sold and distributed in the City of Chester.

      . This was effectuated on the strength of Sergeant Finnegan having seen the appellant displaying a white object believed to be a controlled substance and Officer McIntyre witnessing the appellant placing a white, plastic object into the inside of his jacket pocket. From the cumulative effect of these observations, we find that probable cause materialized to permit Sergeant Butler and Officer Sendek to arrest and, incident thereto, search the appellant. Cf. Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971) (Police officers aiding other officers in executing arrest warrants are entitled to assume that officers requesting aid offered magistrate information requisite to support independent judicial assessment of probable cause).

      . We would note that the appellant’s version of the events depicted him as finding the drugs on the street on the day, time and place in question. The police's version being to the contrary, it was for the trier-of-fact to weigh the evidence and make credibility determinations. We may not invade this bailiwick, especially where the facts are supportive of the verdict. Such being the case, we will not disturb the judgment of sentence.


author: CIRILLO, Judge,

text:
    621 A.2d 124
    COMMONWEALTH of Pennsylvania, Appellant, v. Patrick FOUNTAIN.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1992.
    Filed Dec. 23, 1992.
    Reargument Denied March 5, 1993.

      Dennis C. McAndrews, Asst. Dist. Atty., Media, for Com., appellant.
    William Ruane, Radnor, for appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is a Commonwealth appeal from the February 3, 1992 order suppressing evidence seized during a search of an automobile. The Commonwealth argues that the trial court erred in granting the suppression order where:

1) the vehicle drove away from the officer at a high rate of speed from a high crime area and ignored a traffic control device at a railroad grade crossing in violation of the Motor Vehicle Code, 2) the officer observed furtive movements among the vehicle’s three occupants upon stopping the vehicle and 3) the operator of the vehicle was unable to provide a valid driver’s license or proof of ownership of the vehicle.

Commonwealth’s Brief at 3. For the following reasons, we affirm.

Appellee was arrested and charged with possession of a firearm without a license and criminal conspiracy. On January 4, 1992, appellee filed a motion to suppress the seizure of the gun. Following a hearing on January 13, 1992, the suppression court granted appellee’s motion. The Commonwealth timely appealed from that order.

Our standard of review of an order granting a motion to suppress is well-settled. We may consider

only the evidence of the defendant’s witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. Furthermore, our scope of appellate review is limited primarily to questions of law. We are bound by the suppression court’s findings of fact if those findings are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected.

Commonwealth v. Marconi, 408 Pa.Super. 601, 697, 597 A.2d 616, 619 (1991) (citations omitted), appeal denied 531 Pa. 638, 611 A.2d 711 (1992). We may reverse the suppression court only if its legal conclusions, drawn from the facts in the record, are erroneous. Commonwealth v. Cauto, 369 Pa.Super. 381, 393-94, 535 A.2d 602, 608-09 (1987), appeal denied 521 Pa. 601, 555 A.2d 112 (1988); Commonwealth v. Vinson, 361 Pa.Super. 526, 530, 522 A.2d 1155, 1157 (1987).

The following facts were found by the suppression court:

1. On June 15, 1991 at approximately 11:30 o’clock p.m., Officer Richard Gibney of the Darby Borough police department was on duty in full uniform in a parked police vehicle in the vicinity of 6th Street and Greenway Avenue in Darby Borough, Delaware County, PA, an area known for illegal drug activity.
2. Officer Gibney observed a parked vehicle with three occupants. As his vehicle approached, the subject vehicle was started and proceeded to pull away at a high rate of speed. Officer Gibney followed and at the intersection of 5th Street and Greenway Avenue the subject vehicle proceeded around railroad grade crossing gates which were down, a violation of the Motor Vehicle Code.
3. Officer Gibney activated his siren and flashing lights and stopped the vehicle approximately five blocks away. Two individuals were seated in the front seat of the subject vehicle and one individual in the back seat. Defendant, Patrick Fountain, was seated in the front passenger seat. Officer Gibney observed a great deal of movement between the occupants of the subject vehicle.
4. Officer Gibney requested the operator of the subject vehicle to produce his registration card; however, the driver responded that this was not his vehicle and that he had no cards. By this time, at least three other police officers had arrived at the scene to back up Officer Gibney. Officer Gibney directed the occupants to exit the subject vehicle and, as they did so, they were taken to the rear of the vehicle and patted down.
5. While other officers remained with the three occupants at the rear of the vehicle, Officer Gibney searched the vehicle’s passenger compartment for weapons. On the back of the driver’s seat the officer observed a pouch which “appeared to have something in it.” He reached into the pouch and found a .25 caliber pistol which he seized. The three occupants of the vehicle were then placed under arrest for possession of the firearm without a license.

Order, 2-3-92, at 1-3. Based on the above facts the trial court was unable to conclude that the police officer was justified in searching for and seizing the weapon.

The Commonwealth first argues that the trial court erred in granting defendant’s motion to suppress because the officer had sufficient probable cause to believe that the subject vehicle or its occupants were involved in criminal activity. The Commonwealth points to Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985) which sets forth the standard governing warrantless searches of automobiles. In Milyak, our Supreme Court stated that

To justify ... a [warrantless] search ..., 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.

Id. at 8, 493 A.2d at 1349.

In its order granting suppression, the court stated that “[n]o testimony was presented which would justify opening and searching the pouch.” Order, 2-3-92, at 4. Moreover, in its brief opinion in support of that order, the court noted that “[i]t was apparent from the testimony that the arresting officer possessed no imperative which would allow him to transgress constitutional bounds and search the pouch.” Opinion, 4-10-92. We agree.

Officer Gibney testified that when he first noticed the parked car he saw no activity between the passengers of the car and anyone outside of the car that would amount to criminal activity. N.T. January 13, 1992, at 13. He further stated that before the car ran through the railroad gates, the only thing that made him suspicious was “the way [the car] sped off.” Id. He only followed the car “to see what that led to, if they were running from me or what was going through [sic].... ” Id. He claimed that if the car had not gone around the railroad gate, he would not have stopped them, but would only have continued to follow them. Id. at 14. Moreover, the officer did not describe what can be considered suspicious activity on the part of the car’s occupants. Rather, he only said that he saw “movement” among them. We note that it was not until this appeal that the movements were described as “furtive.”

The Commonwealth’s argument that “the possible possession of stolen property is a factor to be considered in the evaluation of the existence of probable cause” is specious in light of the officer’s testimony that he only stopped the car after it ran through the railroad crossing. Moreover, the Commonwealth’s reliance on Commonwealth v. Woodard, 307 Pa.Super. 293, 453 A.2d 358 (1982) is misplaced. In Woodard, a police officer stopped a vehicle after observing traffic offenses. The driver was unable to produce either a driver’s license or registration but claimed that the car belonged to a relative. The officer then noticed two “Hertz Rental Car” stickers on the vehicle and detained the driver while the officer called the National Crime Information Center to determine whether the vehicle was stolen. The officer’s observations of the stickers and the driver’s inability to produce any rental agreement were clearly reason to suggest that the car did not belong to the driver. In the instant case, on the other hand, the officer presented little reason to have suspected that the automobile was stolen.

The Commonwealth’s second argument is that the search was permissible under Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Pursuant to Michigan v. Long, a police officer may search a vehicle if he reasonably believes that the driver or an occupant is dangerous and that the driver or occupant may gain immediate control of weapons. Id. at 1049, 103 S.Ct. at 3481. The suppression court correctly concluded that under the circumstances, the officer did not reasonably entertain such a belief.

Officer Gibney waited for backup before he began taking the passengers from the car. N.T. at 15. Three uniformed officers joined Officer Gibney in detaining the passengers. Each of the three passengers was frisked as they exited the car, and no weapons were found. Id. Officer Gibney and another officer then conducted the search of the car while the other two officers guarded the three men who were detained outside the vehicle. Id. at 16-17. Thus, when Officer Gibney was conducting the search of the passenger compartment of the automobile, the passengers no longer had access to the vehicle. This situation is distinguishable from the facts of Michigan v. Long. There, two police officers stopped a car which they had seen travelling erratically and at an excessive speed. When the officers repeated a request for identification, the driver who “appeared to be under the influence,” walked toward the open door of the car, apparently to obtain the registration, and the officers followed him and saw a hunting knife on the floorboard of the driver’s side of the car. The officers stopped the driver and subjected him to a Terry protective patdown which produced no weapons. The officers then conducted a brief search of the automobile for other weapons which resulted in the discovery of marijuana.

Under the facts of the instant case, we are unable to find that an officer could reasonably believe that the driver or any of the occupants were dangerous and that they could gain immediate control of weapons. Accordingly, we affirm the order granting suppression of the evidence.

Affirmed.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I most respectfully dissent. While I agree with the majority’s analysis regarding the rationale underlying a search under Michigan v. Long, supra, I cannot agree that it is dispositive of this case. We are bound by the reasonable factual findings of the suppression court, Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983); however, we must reverse if we find an error of law. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111, cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).

A forcible stop of a motor vehicle by a police officer constitutes a seizure of a person and activates the protections of the Fourth Amendment of the U.S. Constitution. Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989). However, a forcible stop and seizure is not unreasonable under the Fourth Amendment where the officer has articulable and reasonable grounds to suspect, or probable cause to believe that criminal activity may be afoot. Swanger, supra; see Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974). Here, the record establishes that the vehicle in which Fountain was a passenger was stopped for a violation of the Motor Vehicle Code. Such a stop under these facts is permissible under 75 Pa.C.S.A. § 6308. The initial stop, therefore, was proper. Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988), alloc. denied, 521 Pa. 617, 557 A.2d 721 (1989); see also Swanger, supra.

A search without a warrant is generally unreasonable. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963) cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). Police may not search a home or any place in which a person has a reasonable expectation of privacy without a warrant. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). A warrant is obtained after a neutral magistrate finds that probable cause exists for a search for evidence of a crime. Aguilar v. Texas, 378 U.S. 108, 109, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723 (1964). Probable cause is a product of a totality of the circumstances presented to the magistrate. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). See also Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991).

There are, however, exceptions to the warrant requirement. One is the automobile exception. The automobile exception is separate and distinct from a search to protect the safety of a police officer under Michigan v. Long, supra, and is based on a wholly different rationale. Commonwealth v. Baker, 518 Pa. 145, 149, 541 A.2d 1381, 1383 (1988). Automobiles are excepted from the warrant requirement because they are inherently mobile and citizens have a lower expectation of privacy in their cars than in their homes. Milyak, supra. Under the automobile exception an officer may search a car if he has independent probable cause to believe the automobile has been used in the furtherance of a felony or contains contraband or evidence of a crime. Id.

Thus, the question becomes did Officer Gibney have probable cause to believe the vehicle contained contraband or evidence of a crime. Probable cause is defined as “a substantial basis for concluding that a search would uncover evidence of wrongdoing.” Gates, 462 U.S. at 236, 103 S.Ct. at 2331. The level of probable cause needed to invoke the automobile exception to the warrant requirement is the same as the probable cause needed for a warrant. Milyak, 508 Pa. at 10, 493 A.2d at 1350.

I would find probable cause to search the vehicle under the automobile exception in the testimony of Officer Gibney, who had been a narcotics officer for eight years. Officer Gibney observed a vehicle in a high-crime area which sped off at his approach in an unmarked police car. The car veered around a grade level train crossing barrier in its effort to elude the officer. Officer Gibney turned on his siren and lights; five blocks later the car he was pursuing stopped. As the officer approached the car, he observed movement among the occupants, movement that he “didn’t like,” based on his training and experience. That movement drew Officer Gibney’s attention to the pouch behind the driver’s seat. There he saw a bulge which turned out to be the gun in question.

Using the Gates, supra, formulation of the totality of the circumstances, I would find that Officer Gibney had the requisite probable cause that contraband or evidence of a crime would be found in the vehicle in question, Milyak, supra, and that, therefore, his search of the vehicle was proper and the evidence should not be suppressed.

      . 18 Pa.C.S.A. § 6106.

      . 18 Pa.C.S.A. § 903.

      . In its brief, the Commonwealth asserts that this order effectively terminates the instant prosecution. Accordingly, the order is appeal-able. Pa.R.A.P. Rule 311(d).

      . We note that Woodard involved only the question of the propriety of the detention and warrantless arrest of the driver. In the instant case, the detention for the Motor Vehicle Code violation was proper; the issue here concerns the propriety of the search.

      . The mere failure to present registration is not enough to give rise to a belief that a car is stolen.


author: WIEAND, Judge:

text:
    621 A.2d 128
    A. McD., Appellant, v. John Nathaniel ROSEN, M.D. and Nancy Cochran, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1992.
    Filed Feb. 16, 1993.

      Alan B. Epstein, Philadelphia, for appellant.
    V.P. dePillis, Philadelphia, for Rosen, appellee.
    Before ROWLEY, President Judge, and WIEAND and HUDOCK, JJ.
   WIEAND, Judge:

In this appeal we are called upon to review a summary judgment entered in favor of a psychiatrist and a therapist because their former patient’s action for malpractice was barred by the two year statute of limitations. The patient contends that the trial court failed to make proper application of the discovery rule. We disagree and affirm.

The appellant, Alexis McDonald, began treatment with Dr. John Nathaniel Rosen, a psychiatrist, in August, 1979. At that time she was complaining of various maladies, including colitis, depression and an unhappy marriage. She came under the care of Nancy Cochran, a therapist associated with Dr. Rosen, in October, 1979. She terminated her relationship with Dr. Rosen in July, 1982, and thereafter ceased all further communication with him because she had become suspicious of his manner of treatment and because she felt that he was unable to cure her complaints.

On February 13, 1985, McDonald filed a civil action against Rosen and Cochran. She alleged that the defendants had engaged in sexual misconduct during the course of their treatment of her. Amended complaints were subsequently filed, and, in response, the defendants filed an answer containing an averment, inter alia, that plaintiffs causes of action were barred by a two year statute of limitations. The defendants thereafter moved for the entry of summary judgment. This was initially denied by the trial court; but, on reconsideration, the court vacated its earlier order and entered summary judgment in favor of the defendants. The plaintiff appealed.

Summary judgment is proper only where 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 must resolve all doubt against the moving party. Carns v. Yingling, 406 Pa.Super. 279, 282, 594 A.2d 337, 339 (1991). A summary judgment can properly be entered in favor of a defendant where plaintiffs cause of action is barred by the statute of limitations. Wible v. Apanowicz, 306 Pa.Super. 262, 452 A.2d 545 (1982); Washington v. Papa, 24 Chest. 334 (1976); Penn-Delco Union School District Authority v. M. & L. Construction Co., 60 D. & C.2d 226 (Del.Co.1972).

The present action is controlled by the two year statute of limitations set forth in 42 Pa.C.S. § 5524. This two year period begins to run “as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations.” Pocono Int’l Raceway v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). A person asserting a claim has the duty to use “all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period.” Id. In those circumstances where the plaintiff cannot reasonably be expected to be aware of the injury or of its cause, the discovery rule may apply to toll the running of the statute of limitations. Id. The discovery rule is a judicially created device which provides that the limitations period begins to run when “the plaintiff knows or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.” Redenz by Redenz v. Rosenberg, 360 Pa.Super. 430, 434, 520 A.2d 883, 885, allocatur denied, 516 Pa. 635, 533 A.2d 93 (1987). The statute begins to run when the injured party “possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress.” Brunea v. Gustin, 775 F.Supp. 844, 846 (W.D.Pa.1991), quoting Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.1985).

In applying the discovery rule, whether a plaintiff should have made a timely discovery of his or her injury is generally an issue for the jury unless the undisputed facts lead unerringly to the conclusion that the time it took to discover an injury was unreasonable as a matter of law. In such cases, summary judgment may be entered by the court. Carns v. Yingling, supra 406 Pa.Super. at 285, 594 A.2d at 340. See: McCain v. Montgomery Hospital, 396 Pa.Super. 415, 423, 578 A.2d 970, 974 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 45 (1991).

In Baily v. Lewis, 763 F.Supp. 802 (E.D.Pa.1991), affirmed, 950 F.2d 721 (3d Cir.1991), the court reviewed the standard of reasonable diligence under Pennsylvania law and said:

The standard of reasonable diligence is an objective or external one that is the same for all individuals. It is not a subjective standard. The fact that this individual plaintiff may have lacked knowledge of his or her injury is “irrelevant,” “the statute is tolled only if a reasonable person in the plaintiffs position would have been unaware of the salient facts.” In defining reasonable diligence, the courts have stated “[tjhere are very few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence.” Moreover, with respect to knowledge of a claim, “plaintiffs need not know that they have a cause of action, or that the injury was caused by another party’s wrongful conduct, for once a plaintiff possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim.”

Id. at 806-807 (citations omitted) (emphasis in original). Since the standard of knowledge is objective, the nature of the injury will typically determine whether the discovery rule has application. Only where the injury is not readily discernible can the rule apply. Id. at 807.

The Baily Court observed that, in Pennsylvania, “except as otherwise provided by statute, insanity or imprisonment [does] not extend the time” allowed by the statute for commencement of an action. Id. at 808. See: 42 Pa.C.S.A. § 5533(a). See also: Walker v. Mummert, 394 Pa. 146, 146 A.2d 289 (1958); Courts v. Campbell, 245 Pa.Super. 326, 369 A.2d 425 (1976). Therefore, the Court held, the statute of limitations pertaining to an action for sexual abuse was not tolled by a minor’s psychological repression of the abuse for fifteen years. Under Pennsylvania law, the Court said, “where the plaintiff is aware of ‘the facts concerning the occurrence of his injury’ and the ‘causative relationship’ between the injury and the defendant’s conduct, the fact that the plaintiff does not know that he has a cause of action will not prevent the statute from running.” Baily v. Lewis, supra at 810, quoting Vernau v. Vic’s Market, Inc., 896 F.2d 43, 46 (3d Cir.1990).

Similarly, in Brunea v. Gustin, supra, the Court held that an action was barred by the statute of limitations despite the fact that a misdiagnosis was alleged to have been a substantial factor contributing to the plaintiffs inability to recognize and be aware that negligence had occurred. The Court said, “[t]he law of the State of Pennsylvania simply does not permit a later diagnosis, whether labeled a misdiagnosis or otherwise, to extend the statute of limitations beyond the two year period when the injury accrued.” Id. at 848-849. Compare: Greenberg v. McCabe, 453 F.Supp. 765 (E.D.Pa.1978), affirmed, 594 F.2d 854 (3d Cir.1979), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979); Person v. Kieffer, 634 F.Supp. 892 (E.D.Pa.1986).

Appellant contends that her continuing psychiatric problems precluded her from realizing that she had been treated improperly by her physician and his therapist. She contends that it was not until 1983, when she discussed the defendants’ treatment with her current psychologist, that she learned that treatment which included sexual conduct was deemed unethical. She would have us hold that the limitations period did not begin to run until this time. We decline to do so. “Inclusion of a plaintiffs mental incapacity as a factor to be considered in determining the reasonableness of plaintiffs diligence runs counter to [the reasonable person standard.]” Barren by Barren v. United States, 839 F.2d 987, 994 (3d Cir.1988) (Sloviter, J., concurring) (citing United States v. Kubrick, 444 U.S. 111, 117-118, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979)), cert. denied, 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988).

Here, the evidence is that in the summer of 1982 appellant was already in possession of the salient facts regarding her alleged mistreatment and the persons responsible therefor. At that time she informed her Mends of the sexual nature of Dr. Rosen’s treatments and was told, in return, that something “[is] wrong here.” At the same time, she began to withdraw from Dr. Rosen because of mistrust, and by December, 1982, had consulted another psychologist.

Under these circumstances, we are constrained to agree with the trial court that the statute of limitations began to run in July, 1982, when appellant ceased all treatment with Dr. Rosen. At that time, according to her own testimony, appellant distrusted Dr. Rosen and Ms. Cochran and was suspicious of their motives. More importantly, she then was already aware of all salient facts, including the course of treatment which had been given and which later became the basis for her alleged cause of action. In the summer of 1982, there no longer were any facts that could not have been discerned by the exercise of reasonable diligence. There was no concealment. The statute of limitations will not be ignored merely because appellant had been treated by a psychiatrist, being in need of psychiatric treatment. Her need of psychiatric treatment did not toll the running of the statute of limitations.

The entry of summary judgment is affirmed.

      . Appellant has failed to cite authority or otherwise demonstrate that she, an adult plaintiff, can pursue an action at law by a designation other than her proper name. Pa.R.C.P. 1018 requires that the caption of an action contain the names of the parties. This is not complied with by using a party’s initials. See: 4 Std.Pa.Prac. § 21:8.


author: ROWLEY, President Judge:

text:
    621 A.2d 132
    DOX PLANKS OF NORTHEASTERN PENNSYLVANIA, A DIVISION OF ROMANI INDUSTRIES v. OHIO FARMERS INSURANCE COMPANY and Tri-State Asphalt Corp., Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1992.
    Filed Feb. 17, 1993.

      Jerry W. Wienand, Pittsburgh, for appellants.
    David Romani, Cresson, for appellee.
    Before ROWLEY, President Judge, and JOHNSON and HESTER, JJ.
   ROWLEY, President Judge:

Ohio Farmers Insurance Company (hereinafter “appellant Ohio”) and Tri-State Asphalt Corporation (hereinafter “TriState”) appeal from the judgment rendered against them, and in favor of Dox Planks (hereinafter “appellee”), in this breach of contract and surety bond action brought by appellee Dox Planks to recover for concrete road barriers it had supplied to appellant Tri-State in connection with a Pennsylvania Department of Transportation highway construction contract which appellant Tri-State had been awarded. Appellants contend that the trial court erred in the following respects: (1) by making its factual finding that a sale rather than a lease of the concrete barriers had occurred between the parties, and in making its corresponding legal conclusion that the concrete barricades in question were “materials substantially used” rather than “capital equipment,” within the meaning of the instant construction bond, (2) by failing to take into consideration an alleged duty on the part of appellee to mitigate its damage, (3) by finding that appellants owe interest to appellee as of October 31, 1989, and (4) by admitting certain exhibits over the objection of defense counsel. Appellee asserts that the trial court’s factual findings, legal conclusions and evidentiary rulings are all well-supported by the record and the law. Following a careful review of both, we affirm.

The factual background of this case is as follows. In preparation for the submission of its bid for a Pennsylvania Department of Transportation (hereinafter “PennDOT”) highway paving contract, appellant Tri-State, by its agent Charles Taylor, contacted appellee Dox Planks, a concrete product supplier, to inquire about the cost of pre-cast concrete barricades to be used on the highway construction project. Mr. John Romani, as owner and chief executive officer of appellee Dox Planks, quoted appellant Tri-State a price of $15.25 per lineal foot for the sale of its pre-cast concrete barrier. Mr. Taylor, who was in charge of handling the bidding on the barrier segment of the project, testified that he had received appellee’s quotation, and that on the night the bids were entered on the project in Harrisburg, PA, he put all the barrier purchase quotations on a spreadsheet which revealed that appellee was the lowest bidder.

When appellant Tri-State was awarded the paving contract by the state, appellee Dox Planks was informed by appellant Tri-States’s estimator, Mr. Taylor, that appellee Dox Planks would be the sub-contractor on the project and that a John McDevitt would be purchasing the barriers directly from the job site. Thereafter, Mr. McDevitt issued purchase order Number 10614, dated August 10, 1989, and purchase order Number 11303, dated October 31,1989, to appellee Dox Planks for the barriers which would be used by appellant Tri-State on its highway paving project. The testimony at trial revealed that Mr. McDevitt had been duly authorized, both by Mr. Taylor, and by the Vice-President of Construction, Mr. George Sipe, to order the materials on behalf of appellant TriState, at the quoted sales price, for this project. The materials were then delivered to appellant Tri-State.

Appellee Dox Planks claims that, in the normal course of business, it mailed invoices for payment to appellant Tri-State and that when payment was not received, Mr. Romani phoned Mr. McDevitt to inquire as to the reason for non-payment. After researching the inquiry, Mr. McDevitt advised Mr. Romani that the checks had been written by the accounting department but remained unsigned due to the unwillingness of appellant Tri-State’s owner, Mr. Straub, to pay the bills. At this point, Mr. Romani claims he had his one and only discussion with Mr. Straub, wherein he was told that “he [Mr. Straub] was not concerned” about the bills and would not be submitting payment thereof to appellee Dox Planks. (Reproduced Record, p. 27a). Whereupon, Mr. Romani informed Mr. Straub that appellee Dox Planks would file a lien against him, the Pennsylvania Department of Transportation, and appellant Ohio for payment. The lien was then filed by appellee.

At the bench trial held in this case, the chief factual issue for the trial court to resolve was whether, from the supplier’s point of view, the concrete barriers were an item reasonably expected to be consumed or substantially consumed in performance of the project. United States for the Use of Sunbelt Pipe v. United States Fidelity and Guaranty Company, 785 F.2d 468 (4th Cir.1986). If they were, under the relevant case law, the supplies were “materials furnished” within the meaning of the bond in question and the Public Work Contractors Bond Law of 1967, 8 P.S. § 195, such that the bond covered the amounts owed by appellant Tri-State to appellee Dox Planks for the barriers. If, under that same law, the barriers could reasonably be expected to be reused on other non-government jobs, appellee Dox Planks could not recover on the bond because the barriers would not be considered “materials furnished,” but rather, would be deemed “capital equipment.”

Following considerable testimony, the trial court found as a fact that the pre-cast concrete barriers supplied to appellant Tri-State by appellee Dox Planks were of such a nature that appellee Dox Planks, as supplier, could reasonably have expected that they would be substantially used up in the project underway inasmuch as they were made specifically according to PennDOT requirements and were indispensable to the prosecution of the project. Commonwealth v. Natural Union Fire Insurance Company, 434 Pa. 235, 252 A.2d 593 (1969). As such, the trial court made the conclusion of law that the barriers were “materials furnished,” under the terms of the bond and therefore, rendered the judgment that appellants Tri-State and Ohio were jointly and severally liable to appellee Dox Planks for $36,662.32, plus interest at the rate of 6% per annum. Appellant’s primary claim of trial court error is that this factual finding, and its corresponding conclusion of law, are against the weight of the evidence.

In addressing these claims, we note initially that:

“findings of a trial judge sitting without a jury carry the same weight as a verdict, and th[e appellate courts] will not disturb those findings on appeal absent an error of law or an abuse of discretion, [citation omitted]. We will respect a trial court’s findings with regard to the credibility and weight of the evidence unless the appellant can show that the [trial] court’s determination was manifestly erroneous, arbitrary, and capricious or flagrantly contrary to the evidence. [citation omitted].”

Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 133, 519 A.2d 1021, 1026 (1987). Furthermore:

“A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict, but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and will not be reversed on appeal unless there has been an abuse of discretion, [citations omitted]. The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail, [citations omitted].”

Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). To be entitled to a new trial, an appellant challenging the trial court’s verdict as against the weight of the evidence, must establish “from the record that the [fact-finder’s] verdict was so contrary to the evidence as to shock one’s sense of justice ...” Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981).

Despite a careful reading of the entire record, we are not shocked by the trial court’s factual findings and legal conclusions. Rather, we conclude that the trial court’s well-reasoned opinion more that adequately discusses the relevant law and applies it correctly to the facts of this case. Its determinations are well-supported by the testimony presented and the relevant case law. All of the testimony, except for Mr. Straub’s, supports the trial court’s conclusion that a sale of the barriers was intended by all parties at the time the contract was effected. The mere fact that the trial court resolved a discrepancy in the testimony against Mr. Straub is not reversible error. Moreover, the record reveals that “Dox Planks elucidated its reasonable and good faith expectation at the time of delivery that the materials furnished would be substantially used up on the project” (Trial Court Opinion, 3/10/92, p. 10) and that the precast barriers were of no value to appellant Tri-State after completion of this project. (Reproduced Record, p. 149a). Therefore, we affirm the trial court’s determination that a sale rather than a lease occurred in this case and that both appellant Tri-State and its surety are liable to appellee Dox Planks in this case because the supplies in question were “materials furnished” as that term is understood in the context of a construction bond under the Public Work Contractors Bond Law of 1967, 8 P.S. § 195.

After careful review, we also approve the trial court’s adequate and correct discussion and disposition of the three remaining issues raised above. First, we agree with the trial court’s conclusion that under the circumstances of this case, appellee Dox Planks was not obliged to mitigate its damages. As the trial court stated in its opinion, “[i]n order to determine whether mitigation is appropriate, the test to be applied to plaintiff[/appellee]’s conduct is whether the conduct taken in response to the defendant[/appellant’s] breach was reasonable.” (Trial Court Opinion, 3/10/92, p. 5). See: Toyota Indust. Trucks U.S.A., Inc. v. Citizens National Bank of Evans City, 611 F.2d 465 (3d Cir.1979). Moreover, "... an injured party is not obligated to mitigate damages when both he and the liable party had equal opportunity to do so.” Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 133, 519 A.2d 1021, 1028 (1987). Because appellant Tri-State had already received the pre-cast concrete barriers, and they were in current use on the highway project at the time appellant Tri-State breached the contract by non-payment, appellee Dox Planks was precluded from taking steps to avoid loss on the breach of the contract. Therefore, the trial court was correct in concluding that “[appellee] fulfilled its obligation by law under the contract, and to impose an additional duty upon it in light of the circumstances of the breach [would have been] unreasonable.” (Trial Court Opinion, 3/10/92, p. 6).

Next, we agree with the trial court that “[i]n contract cases, a successful plaintiff is entitled to prejudgment interest at the statutory rate as a matter of right, and it is calculated from the time the debt became payable.” (Trial Court Opinion), 3/10/92, p. 7). See: Fernandez v. Levin, 519 Pa. 375, 379-380, 548 A.2d 1191, 1193 (1988). In the instant case, appellee Dox Planks “last performed labor and furnished materials pursuant to its contract with [appellant] Tri-State on October 31, 1989, [and on that date, appellant Tri-State was aware of the total amount it owed to appellee Dox Planks.] Accordingly, the [trial] court established that date as the time upon which the establishment of the legal rate of interest at six (6) percent per annum should accrue.” Despite appellants’ arguments to the contrary, we find no trial court error in requiring appellants to pay interest, as ordered by the trial court.

Finally, we concur with the trial court’s conclusion that Exhibits 4, 5 and 6 were properly admitted after testimony by Mr. Romani that the invoices were prepared in the normal course of appellee Dox Plank’s business and that he had personal knowledge that they were sent to appellant TriState. These exhibits were admitted in a bench trial by the trial court for the sole purpose of establishing that they were, in fact, prepared. As the trial court stated in its opinion, “[t]here was no definable or ascertainable motive for falsification under the circumstances, and therefore the exhibits were admitted as sufficiently reliable evidence.” (Trial Court Opinion, 3/10/92, p. 5). See also: U.S. for Use of Automatic Sprinkler Corp. of America v. Merritt-Chapman & Scott Corp., 305 F.2d 121 (3d Cir.1962), concerning the admission of these documents to prove the required 90-day notice as required to maintain an action on a payment bond. We conclude that the admission of the exhibits was entirely proper.

Accordingly, for all of the above-stated reasons, we affirm the order of the trial court finding appellants jointly and severally liable to appellee Dox Planks in the amount of $36,662.32, plus interest of 6% per annum from October 31, 1989.

Judgment affirmed.

      . It should be noted at this juncture that appellant Tri-State maintains that the concrete barrier transaction between it and appellee Dox Planks was a lease, rather than a purchase. The owner and chief executive officer of appellant Tri-State claims to have had discussions with Mr. Romani of appellee Dox Planks in which they agreed, prior to the bidding process, that appellee Dox Planks would rent the barriers to appellant Tri-State for $5.00 per lineal foot, plus the costs of transporting the barriers from the Tri-State project to the next project designated by appellee Dox Planks within a 200-mile radius. Because this testimony was in direct contradiction to that of Mr. Romani, and was highly suspect in light of the testimony of all other witnesses, the trial court, as fact-finder, was required to resolve the discrepancy in testimony with a credibility determination. The discrepancy was resolved in favor of Mr. Romani and appellee Dox Planks.

      . Appellant Tri-State claims that it never received these invoices and therefore, argues on appeal that it was error for the trial court to introduce the invoices into evidence even for the limited purpose of establishing that they were mailed.

      . The mere fact that initially, appellee Dox Planks' attorney drafted a letter asking the bonding company for $3,677.14 more than is now due is of no moment. At the time the letter was written, there was some confusion between the two companies’ accounting departments as to whether a third, much smaller, bill had been paid by appellant TriState to appellee Dox Planks. Because appellee Dox Planks discovered that the third bill had been paid, it is now seeking recovery only for the two unpaid bills, amounting to $36,662.32. Appellant Tri-State was aware of the amounts it had paid and the amounts that it still owed to appellee Dox Planks as of October 31, 1989 and consequently, appellant Tri-State committed a breach of contract to pay a definite sum of money such that it must now pay interest to appellee Dox Planks on that sum.