author: ROWLEY, President Judge:

text:
    595 A.2d 1308
    Neal WARREN, individually and t/a Electronic Servicenter v. Daniel GREENFIELD, Appellant.
    Superior Court of Pennsylvania.
    Argued May 9, 1991.
    Decided Aug. 21, 1991.

      Donna Dougherty, Philadelphia, for appellant.
    Arthur D. Rabelow, Bensalem, for appellee.
    Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ.
   ROWLEY, President Judge:

This is an appeal by defendant/appellant Daniel Greenfield, owner of two buildings in Philadelphia. Appellant appeals from the judgment entered in favor of plaintiff/appellee, Neal Warren, who leases space in one of the buildings for commercial purposes. Following a bench trial, and denial of appellant’s motion for post-trial relief, the trial court entered judgment in favor of Warren and against appellant in the amount of $42,644.00; this appeal followed. On appeal, appellant alleges numerous trial court errors and seeks a reversal of the trial court’s decision or, alternatively, a remand to the trial court on the sole issue of damages. Having thoroughly reviewed the record and the arguments presented, we find these arguments to lack merit, and affirm.

The factual and procedural history is as follows: This action is predicated on the terms of a lease agreement between appellant (lessor) and Warren (lessee), owner of Electronic Servicenter, an audio and visual equipment repair service. Previously, appellant and Warren had a lease agreement whereby Warren leased the first floor of 13 South 21st Street in Philadelphia. However, by terms of the new lease, dated June 1, 1988, Warren was to rent the “street floor and full basement at 13 South 21st Street” (emphasis added) for a term of five years. The basement in this building consists of two rooms—a large “rear” portion, and a utility room, located in “the front.” As per the terms of the June 1st lease, appellant was permitted to store materials in the basement for up to 90 days from the inception of the lease (until September 1, 1988). However, the lease also stipulated that appellant was to relinquish possession of the “full basement” within 90 days, as well as give Warren a $400 monthly abatement for use of the basement during this period. Paragraph 30 of the agreement also provided that:

In the event that Lessor sells or enters into an agreement to sell the demised premises, ... this Lease may be terminated by Lessor giving immediate notice to Lessee who shall have the greater of the following periods of time to vacate the premises:
(a) 120 days from the date of written notice of the entering into the [sic] agreement of sale, or
(b) 30 days after the actual closing of the sale, but in all events, not less than 120 days from receipt of written notice of signed [sic] agreement of sale.

(Emphasis added.).

On July 15, 1988, appellant entered into an agreement of sale with Antonios and Sophia Dimapoulos for buildings 13 and 15 on South 21st Street. For reasons that are unclear from the record, appellant failed to vacate the basement at 13 South 21st Street during the 90-day period, as was specified in the June 1st lease agreement, but instead, on October 18, 1988, sold his entire interest in both properties to the Dimapouloses. Along With this conveyance, appellant assigned to the new owners all leases currently “in full force and effect.” Also on that date, appellant entered into a “new” lease agreement with the owners for “the front room” (basement) of 13 South 21st Street. (Lease Agreement, October 18, 1988, paragraph 2.)

Thereafter, on October 19, 1988, appellant verbally notified Warren that the buildings had been sold, and informed Warren that the June 1st lease had been terminated. On October 20, 1988, appellant hand delivered a letter to Warren, dated October 19, 1988, which stated that “[t]itle was transferred on 18 October 1988” and that Warren would “either have to surrender occupancy or negotiate a new lease with the owner.”

Appellant continued to occupy the basement. After several months, appellant relinquished possession of the large “rear portion” of the basement but refused to vacate the front utility room, claiming his entitlement to this space on the basis of the “new” lease agreement with the Dimapouloses. This series of events prompted Warren’s present action against appellant, wherein Warren sought possession of the entire basement, as well as damages for appellant’s wrongful detention of the basement space.

A bench trial was held on January 16-18, 1990, after which the parties submitted proposed Findings of Fact and Conclusions of Law. On February 27, 1990, the trial court adopted the findings of fact and conclusions of law submitted by Warren, and concluded that the lease of June 1, 1988 was in full force and effect on October 19, 1988; that the letter dated October 19, 1988 from appellant to Warren did not terminate the lease of June 1st; that appellant had assigned all of his rights in the lease to the new owners on October 18,1988; that Warren was entitled to possession of the full basement after September 1, 1988; that appellant wrongfully withheld possession of the large rear portion of the basement until April 1, 1989 and of the front utility portion until December 1, 1989; and that appellant’s wrongful possession of the basement areas hampered Warren’s business endeavors, causing him to lose one year’s profits totalling $42,644.00. Appellant’s motion for post-trial relief was filed and denied. The trial court then entered judgment in favor of Warren, and against appellant, in the amount of $42,644.00. This timely appeal followed.

Initially, appellant contends that appellee Warren is not entitled to damages for his—appellant’s—extended possession of the front portion of the basement, based on his assertion that no valid lease agreement existed between the parties. Appellant’s claim is twofold. First, appellant argues that the lease agreement of June 1, 1988 was an invalid contract because the term “full basement” is ambiguous. In support of this claim, appellant argues that the use of the (single) term “basement” in other portions of the lease, when apparently referring to the same rental space, created an inherent ambiguity, which invalidated the lease agreement. Second, appellant contends that Warren was unilaterally mistaken as to the meaning of the term “full basement,” since appellant did not intend for the term to include the utility room. Appellant posits that since Warren’s “mistake” went to the “basis of the bargain,” there was no “meeting of the minds” on this issue, and hence, no enforceable contract between the parties. These arguments must fail.

It is well settled law that a lease agreement is in the nature of a contract, and is controlled by principles of contract law. Amoco Oil Co. v. Snyder, 505 Pa. 214, 478 A.2d 795 (1984); Village Beer & Beverage, Inc. v. Vernon D. Cox & Co., 327 Pa.Super. 99, 475 A.2d 117 (1984); Cusamano v. Anthony M. DiLucia, Inc., 281 Pa.Super. 8, 421 A.2d 1120 (1980); Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979). When we, as a reviewing court, are asked to interpret or review the meaning of a contract, the intent of the parties is paramount, and our objective is to ascertain the parties’ intent as it is manifestly expressed in the agreement itself. Cusamano, supra; Daniels v. Bethlehem Mines Corp., 891 Pa. 195, 137 A.2d 304 (1958); Paull v. Pivar, 161 Pa.Super. 233, 53 A.2d 826 (1947). The intent of the parties to a written contract is regarded as embodied in the writing itself. Marcinak v. Southeastern Greene School District, 375 Pa.Super. 486, 544 A.2d 1025 (1988); Giant Markets, infra. In the absence of technical terminology, we give the words used in the agreement their plain and ordinary meaning. West Development Group, Ltd. v. Horizon Financial, F.A., 405 Pa.Super. 190, 592 A.2d 72 (1991); Giant Markets v. Sigma Marketing Systems, 313 Pa.Super. 115, 459 A.2d 765 (1983); Sharp v. McKelvey, 196 Pa.Super. 138, 172 A.2d 580 (1961); Pines Plaza Bowling, Inc. v. Rossview, Inc., 394 Pa. 124, 145 A.2d 672 (1958); Paull, supra When the words of a contract are unequivocal, they speak for themselves, and a meaning other than that expressed cannot— and will not—be given to them. Marcinak, supra; Amoco Oil, supra. A fortiori, where the words used are clear and unambiguous, this Court will not rewrite the contract or give it a construction that conflicts with the plain, ordinary, and accepted meaning of the words used. Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981). See also: 4 WILLISTON ON CONTRACTS, § 601 (3rd ed. 1961) (“The primary object in the interpretation of any writing is to ascertain and effectuate the intent of the parties. Where the words of a contract ... are clear and unambiguous, its meaning is to be ascertained in accordance with its plainly expressed intent.”).

Appellant urges this Court to accept the argument that the term “full basement” is ambiguous, and that this alleged ambiguity serves to invalidate the June 1st lease agreement. This we cannot do. Webster defines the word “full,” as it is used in the context of the June 1st lease agreement, as pertaining to that which “uses or occupies all of a given space.” WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY 740 (2d ed. 1983). The plain meaning of the words “full basement” clearly makes reference to the basement area in its entirety—including the utility room. Despite appellant’s arguments to the contrary, no foundation exists for interpreting the words “full basement” as referring to anything less than the entire basement area, and the fact that the (single) word “basement” was used in other portions of the lease agreement does not belie this fact. We must reject appellant’s implicit recommendation that we treat the added word “full” in the disputed portion of the lease as mere surplusage, since “the law does not assume that the language of [a] contract was chosen carelessly.” Daniels v. Bethlehem Mines Corp., 391 Pa. 195, 203, 137 A.2d 304, 308 (1958). Therefore, we find no error in the trial court’s conclusion that the words “full basement” are clear and free of ambiguity, and were indicative of an intent to lease the entire basement level of the property, which includes the utility room.

Appellant also argues that no valid lease agreement exists since appellee Warren was unilaterally mistaken as to the meaning of the words “full basement.” Appellant asserts that “\he ] did not intend “full basement” to include rental of the utility room” (emphasis added), and that “any reference to basement in the lease was therefore exclusive of the utility room.” Appellant also argues that Warren knew—or should have known—that the utility room could not reasonably have been intended for inclusion since appellant, as property owner, would need to retain access and control over this area. Moreover, appellant contends that since this “mistake” went to the “basis of the bargain,” there was no “meeting of the minds” on this issue; hence, appellant denies the existence of any enforceable contract between the parties. We disagree.

First we note, as a preliminary matter, that a unilateral mistake will not void a contract. Herman v. Stern, 419 Pa. 272, 213 A.2d 594 (1965). Generally, if a mistake is not mutual, but unilateral, and is not due to the fault of the one not mistaken, there is no basis for relief. McFadden v. American Oil Company, 215 Pa.Super. 44, 257 A.2d 283 (1969). Insofar as appellant contends that appellee’s “mistake” invalidates their lease agreement, appellant’s argument misses the mark, since unilateral mistakes will not void a contract. We conclude, therefore, that appellee’s alleged “mistake” did not negate the existence of a valid and enforceable contract.

Appellant also argues that appellee Warren either knew or should have known that he—appellant—did not intend for the term “full basement” to include the utility room. However, we quickly dispose of this argument by reiterating that our role as a reviewing court is to examine that which has been clearly expressed in the writing; appellate courts are prohibited from speculating as to the mental processes or unexpressed expectations of the contracting parties. Daniels, supra. Our review of the June 1st lease agreement shows the lease to be devoid of any indication that the utility room was to be excluded, or that the term “full basement” was restricted in meaning. That appellant did not intend for the utility room to be included as rental space is not dispositive, since appellant's purported actual intent is nowhere manifested in the lease agreement. Similarly, appellee’s actual or presumed knowledge of appellant’s intent is immaterial, since our determination as to the parties’ intent is made without reference to, or consideration of, that which is unexpressed. We conclude, therefore, that appellant’s claim warrants no relief.

Appellant’s third contention is that the trial court erred in concluding that he wrongfully withheld the basement area after September 1988, since he purportedly “terminated the [June 1st] lease in July, 1988 by orally informing [Warren] of the impending sale of the property [and the termination of the lease].” Appellant attempts to buttress this argument by asserting that the Rider to the lease agreement “compels a finding that the lease was properly terminated in July, 1988”; therefore, Warren was not entitled to possession of the basement in September of 1988. However, this argument must fail.

First, the trial court found, as a matter of fact, that appellant’s “oral notification” that the buildings had been sold, and that Warren’s lease was terminated, was given on October 19, 1988. The trial court also found that “[a]t no time on or before October 18, 1988, did [appellant] or anyone acting on his behalf, give oral or written notice to [Warren] that the lease of June 1, 1988 was being cancelled for any reason” (emphasis added). Therefore, we conclude that appellant’s assertion that oral notice was given in July is without a factual basis.

Appellant also claims that the Rider agreement indicates that the lease was terminated in July, 1988. In support of this contention, appellant points to the following language:

In the event that Lessor sells or enters into an agreement to sell the property containing the demised premises, ... this Lease may be terminated by Lessor giving immediate notice to Lessee____

Rider Agreement, Paragraph 30 (emphasis added). Based on this section of the Rider, appellant argues that the term “immediate notice” fails to specify the type of notice required to terminate the lease; therefore, the trial court abused its discretion in determining that appellant’s oral notification was insufficient.

Nevertheless, the issue of whether the lease could have been terminated by “immediate” written or oral notice is one we need not decide. Since appellant failed to give Warren any termination notice prior to appellant’s conveyance of the property and the leases on October 18, 1988, the lease of June 1st was in full force and effect. Therefore, we conclude that the trial court did not err in determining that appellant was in wrongful possession of the basement from September, 1988 onward.

Fourth, appellant contends that the trial court abused its discretion in determining that he wrongfully withheld a portion of the basement, as the “new” lease agreement between appellant and the new property owners entitled him to possession. However, having thoroughly reviewed the record, we concur with the conclusion reached by the trial court, that the June 1st lease agreement was in full force and effect on October 18, 1988 since no action taken by appellant prior to this date served to effectively terminate it. Nor did the new property owners ever attempt to terminate appellee’s lease. This being the case, Warren was entitled to possession of the entire basement from September 1, 1988 onward.

Lastly, appellant argues that the trial court erred in awarding Warren $42,644.00 for lost profits. Appellant contends that Warren’s damages could not have been determined with any reasonable degree of certainty since Warren’s video repair business was “new and untried.” In addition, appellant contends that since “[n]o factual basis exists in the record to support a finding that [ajppellant should have foreseen (Warren’s] loss as a result of his withholding the basement,” Warren is precluded from recovery.

This assertion is not supported by the record. The trial court found, as a matter of fact, that Warren had advised appellant, during negotiations for the June 1st lease, that his status as tenant was contingent on his ability to possess the entire basement at 13 South 21st Street since, by June 1, 1988, Warren’s place of business “could no longer grow or even operate efficiently” due to inadequate spacing. The trial court also found that Warren needed this additional room for storage, a computer, a customer counter, and additional workbenches. We are satisfied that these facts support a finding that Warren’s loss was reasonably foreseeable at the time the parties entered the lease agreement. See also: Gen. Dynafab, Inc. v. Chelsea Industries, Inc., 301 Pa.Super. 261, 447 A.2d 958 (1982) (“[Djamages may be assessed for loss of profit where such a loss was reasonably foreseeable to the parties at the time that the contract was entered, and where those damages are capable of proof of reasonable certainty.”).

Appellant correctly states, in his brief, that lost profits may not be awarded where “the evidence leaves the trier of fact without any guideposts except his or her own speculation.” Merion Spring Company v. Muelles Hnos. Garcia Torres, 315 Pa.Super. 469, 486, 462 A.2d 686, 695 (1983) (emphasis added). However, in Merion Spring Company, this Court also stated that lost profits may appropriately be awarded where “[sufficient evidence [is] introduced to permit a reasonably certain estimate of the amount of anticipated profits lost due to the breach.” Id. (emphasis added). We also stated that even “new businesses may be able to adduce sufficient evidence to obtain an award for lost profits ...” Id., 315 Pa.Superior Ct. at 487, 462 A.2d at 696. See also: Gen. Dynafab v. Chelsea Industries, supra.

In assessing the dollar amount of Warren’s lost profits, our review of the record shows that the trial court considered both testimonial evidence and exhibits regarding the average weekly (dollar) production of a work bench; the number of workbenches available; the cost of two work benches; vacations, seminars, holidays, and the effect these would have on production; salaries for technicians; taxes; average parts expenses; tools, supplies, and meters for additional benches; additional rent for the basement over a 12-month period; advertising expenses; and other related costs over a 12-month period. The trial court found the dollar amounts submitted by appellee to be credible, and our review of the record has unveiled no error that would warrant disturbing the trial court’s findings. We are satisfied that the well documented and detailed computation of the trial court was absent of speculation, and based on substantive dollar amounts. We conclude, therefore, that the trial court properly assessed Warren’s lost profits at $42,644.00. Based on the foregoing, we affirm the judgment entered on the order of the trial court denying appellant’s motion for post-trial relief, and we deny appellant’s request for a remand on the issue of damages.

Judgment affirmed.

      . Since appellant had vacated all portions of the basement by December of 1989, the ejectment issue was not addressed at trial.

      . The trial court stated, in its opinion, that Warren’s damages were computed “by averaging the high and low for each bench ($122,200.00 plus $61,100.00, divided by 2, equals $91,650.00, times two benches, less costs of $111,656.00, less $29,000.00 profit earned on partial operation)’’ (Trial Court Opinion, at 6).

      . See also: Restatement (Second) of Contracts, § 202:
      § 202. Rules in Aid of Interpretation
      ******
      (3) Unless a different intention is manifested,
      (a) where language has a generally prevailing meaning, it is interpreted in accordance with that meaning;
      (b) technical terms and words of art are given their technical meaning when used in a transaction within their technical field.

      . See also: 13 Williston on Contracts, § 1577 (3rd ed. 1970): “[Where there] is no claim ... of fraud or duress or mutual mistake ... it is well established that one having the capacity to understand a written document .. [and who] ... signs it, is bound by his signature" (emphasis added). Moreover, "[where a signer] has made himself acquainted with the words of the document and his mistake concerns its interpretation or legal effect, his unilateral error affords no more grounds for relief than does ignorance of the words." Id. (emphasis added). Similarly, Comment (a) of Section 153 of the Restatement (Second) of Contracts (1981) states that "[courts are] reluctant to allow a party to avoid a contract on the ground of mistake, even as to a basic assumption, if the mistake was not shared by the other party."

      . Williston on Contracts also states that:
      The unexpressed understanding of one of the parties to a contract as to its meaning is usually of no legal significance ... as it cannot be used to overthrow the effect of the intention actually made manifest in the contract.
      4 WILLISTON ON CONTRACTS, § 606 (3rd ed. 1961) (citations omitted). Accordingly, this Court has also stated that where an agreement has been reduced to writing, the actual intent of the parties is ineffective unless it has been expressed in the writing. Pauli, supra.

      . See: Trial Court Opinion, p. 3.

      . It should also be pointed out at this juncture that appellant’s unilateral decision to give "notice” of the termination of the lease was in effect a nullity, since appellant had assigned all of his rights to the lease in the conveyance of October 18, 1988 (Trial Court Opinion, pp. 2-3). Moreover, the record is devoid of any indication that the “termination notice” was given by appellant on behalf of the new owners. In fact, the trial court found that the new owners never cancelled the lease of June 1st and, as of the date of the trial court’s opinion, were honoring the terms of the lease with appellee (Trial Court Opinion, p. 3).

      . See also: Trial Transcript, Vol. I, January 16, 1990, pp. 28-29, 38, 85.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    595 A.2d 1315
    COMMONWEALTH of Pennsylvania, Appellant, v. Alejandro Garcia PEREZ, Appellee.
    Superior Court of Pennsylvania.
    Submitted May 28, 1991.
    Decided Sept. 4, 1991.
    Karen M. Kobily, Asst. Public Defender, Reading, for appellant.
    Charles B. Coleman, Asst. Dist. Atty., Reading, for Com., appellee.
    Before WIEAND, OLSZEWSKI and MONTGOMERY, JJ.
   WIEAND, Judge:

When a police officer makes a lawful Terry stop and, after frisking the suspect, finds no weapon, may the officer then seize and open a small, nondescript, leather pouch protruding from the suspect’s pocket? The trial court held that the search of the pouch exceeded the proper scope of the lawful stop and frisk and suppressed the contents of the pouch. The Commonwealth appealed. It has certified that the cocaine found inside the pouch is essential to prove appellee’s guilt of the drug offenses with which he has been charged.

The standard of review to be employed in conducting appellate review of the suppression court’s order was stated in In the Interest of Jermaine, 399 Pa.Super. 503, 505, 582 A.2d 1058, 1059 (1990), as follows:

In reviewing an appeal taken by the Commonwealth from an order suppressing evidence,

we must 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. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court’s findings of fact if those findings are supported by the record. Id. Factual findings wholly lacking in evidence, however, may be rejected. Id.

Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988). See also: Commonwealth v. James, 506 Pa. 526, 532-533, 486 A.2d 376, 379 (1985); Commonwealth v. Elliott, 376 Pa.Super. 536, 543, 546 A.2d 654, 657 (1988).

Id. 399 Pa.Super. at 505, 582 A.2d at 1059.

On May 18, 1990, police officers Ron Fisher and Gordon Roberts were on patrol in support of a "sting” operation being conducted in Reading, Berks County. The officers, who were in separate vehicles, learned by radio that a drug transaction had occurred nearby and received a description of a suspect who had eluded the police. Shortly thereafter, Roberts came upon Alejandro Garcia Perez, who was on his hands and knees, reaching beneath the underside of a parked vehicle. As Roberts continued to observe, Perez rose and began to walk away. Although his clothing was different than that being worn by the person who had eluded police following the earlier drug transaction, Roberts believed Perez to be the suspect for whom the police were looking. In fact, Roberts was mistaken. The undercover agent who had witnessed the prior drug transaction stated, when later called to make an on-the-scene identification, that Perez was not the person for whom police had been looking. In any event, Roberts called Fisher for assistance, and the two officers stopped Perez. While he was being questioned by Roberts, Fisher conducted a pat-down search. No weapons were found. However, Perez appeared to be attempting to hide from observation a small, leather pouch which was partially protruding from a pocket of his trousers. Fisher removed the pouch from Perez’s pocket, believing it to contain drugs. He testified that the pouch was of a kind commonly used to transport illegal drugs, but the suppression court expressly rejected this testimony and found that “there [was] nothing apparently incriminating about the pouch to justify giving the [ojfficers probable cause to ‘associate the property with criminal activity.’ ” The suppression court also found that the officers could not have believed the pouch to contain a weapon. Nevertheless, Fisher opened the pouch, without Perez’s consent and without a warrant, and found therein twenty-six (26) “dime” sized packets of cocaine. The suppression court concluded that the search of the pouch had exceeded the proper bounds of a Terry search and suppressed the cocaine.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court of the United States defined the purpose and limits for the stop and frisk of a suspect in the following language:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id. at 30, 88 S.Ct. at 1884-1885, 20 L.Ed.2d at 911. The limits of a Terry search were emphasized by the Superior Court in Commonwealth v. Canning, 402 Pa.Super. 438, 587 A.2d 330 (1991), as follows:

In Terry, the United States Supreme Court articulated a police officer’s “narrowly drawn” authority to conduct a reasonable search for weapons for the officer’s protection. Id. [392 U.S.] at 27, 88 S.Ct. at 1883. The officer may pat down or frisk a suspect for weapons only if he reasonably believes that criminal activity is afoot, and that the suspect may be armed and dangerous. Id. The officer must be able to articulate specific facts to justify his belief that the suspect may be armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Moreover, the scope of a Terry search is limited. Because the “sole justification of the search ... is the protection of the police officer and others nearby, ... it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry v. Ohio, supra, 392 U.S. at 29, 88 S.Ct. at 1884. In the instant case, the officer exceeded the scope of a Terry search. In order to reach into a suspect’s pockets during a Terry search, the officer would have to feel something that appears to be a weapon. “Nothing in Terry can be understood to allow ... any search whatever for anything but weapons.” Ybarra v. Illinois, supra, 444 U.S. at 93-94, 100 S.Ct. at 343.

Id., 402 Pa.Superior Ct. at 440-41, 587 A.2d at 331.

Although our research has disclosed no decision by the appellate courts of this Commonwealth which could be said to be determinative of the facts in the instant case, LaFave has anticipated such circumstances in his Treatise on Search and Seizure and has commented as follows:

It sometimes happens that when the officer withdraws the object from the suspect’s pocket, it turns out to be some type of container. The question then arises as to whether it is permissible for the officer to open that container and examine the contents. Certainly the container should not be opened unless it might contain a weapon, a judgment which the officer should be expected to make on the basis of its size, weight and feel. Thus it is improper for an officer to open a small zippered coin purse weighing only .a few ounces, for it “could not conceivably have contained a gun nor could any officer reasonably have considered that it contained a dangerous weapon of any kind.”

3 W. LaFave, Search and Seizure, § 9.4(d), at p. 525 (2d ed. 1987) (footnote omitted).

The Commonwealth argues, in reliance on a panel decision in Commonwealth v. Kendrick, 340 Pa.Super. 563, 490 A.2d 923 (1985), that the search of the pouch can be sustained under the “plain view” doctrine. We reject this argument. Kendrick is not apposite, and the Commonwealth’s reliance thereon is misplaced. In that case, the police had obtained a search warrant for a house which they believed to be a site for drug related activity. Pursuant to the warrant, the police forcibly entered the house to search for heroin. Present in the house were four adults, one of whom wielded a shotgun, and three juveniles hiding in a closet. While the police were searching the four adults for weapons, they observed that one person had a small black object in his hand which he attempted to conceal from the police. One of the officers seized the object, which was a black plastic film vial. The officer opened it and found heroin. The Superior Court reversed the trial court’s suppression of the heroin, stating that the police had probable cause to search the film vial, which was “akin to those rare single-purpose containers which ‘by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.’ ” Commonwealth v. Kendrick, supra, 340 Pa.Superior Ct. at 573, 490 A.2d at 928-929 (quoting Arkansas v. Sanders, 442 U.S. 753, 764-765 n. 13, 99 S.Ct. 2586, 2593-2594 n. 13, 61 L.Ed.2d 235 (1979)). Under these circumstances, the Court concluded, the film vial containing contraband should not have been suppressed.

In the instant case, the police were not engaged in conducting a search pursuant to warrant. There was here no warrant, and the police were engaged only in a Terry “stop and frisk” with all the limitations which the law has imposed thereon. The pouch found upon appellee's person was not such that it could have contained a weapon, and there was nothing about it, the suppression court found, to suggest criminal activity. Under these circumstances, the contraband was not in plain view. It was concealed in a nondescript, leather pouch, for the opening of which police lacked any authority. If a warrantless search were condoned under the circumstances of this case, police would be free, without probable cause, to stop and search the wallets of any citizens found walking the streets of our cities whenever the police deemed them “suspicious.” This is precisely what the Fourth Amendment was intended to prevent.

The order of the suppression court is affirmed.

      . See: Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).


author: CERCONE, Judge:

text:
    595 A.2d 1318
    Julius WALKER, Administrator of the Estate of Denise Stockton v. T. James RONEY, M.D.; and Michael Czuba, M.D.; and Greene County Memorial Hospital Comprehensive Health Care Group. Appeal of GREENE COUNTY MEMORIAL HOSPITAL and T. James Roney, M.D.
    Superior Court of Pennsylvania.
    Argued May 16, 1991.
    Decided Sept. 4, 1991.

      Louis C. Long, Pittsburgh, for appellant.
    Mary E. Nepps, Philadelphia, for appellee.
    Before CAVANAUGH, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is a certified interlocutory appeal from an order entered by the Court of Common Pleas of Greene County, Civil Division, in connection with wrongful death and survival actions initiated by plaintiff/appellee. For the reasons that follow, we affirm.

Appellee’s decedent, Denise Stockton, was incarcerated at the State Correctional Institution at Waynesburg in August of 1987. Plaintiff/appellee, Julius Walker, alleges that Ms. Stockton was examined and treated at Greene County Memorial Hospital by two of the appellants in this case, Drs. Roney and Czuba. Appellee contends that these doctors negligently failed to timely diagnose and treat the breast cancer which killed Ms. Stockton in April of 1989. Prior to her death, Ms. Stockton and appellee Walker, her husband, brought an action against the Commonwealth of Pennsylvania Department of Corrections in the Court of Common Pleas of Greene County. That action, based upon the failure to diagnose and treat Ms. Stockton’s cancer, is still pending in the lower court.

Following Ms. Stockton’s death, her personal representative instituted both wrongful death and survival actions against Drs. Roney and Czuba as well as against Greene County Memorial Hospital and Comprehensive Health Care Group. Greene County Memorial Hospital and Dr. Roney filed preliminary objections in the nature of a demurrer alleging that the wrongful death and survival actions were barred because of the pendency of Ms. Stockton’s lifetime action against the Department of Corrections. The lower court sustained the preliminary objections on the wrongful death count, but declined to dismiss the survival action. Greene County Memorial Hospital and Dr. Roney subsequently petitioned the lower court to amend its order so as to permit a certified interlocutory appeal. Permission to appeal was granted on July 23, 1990. See 42 Pa.C.S.A. § 702 (Interlocutory orders) and Pa.R.A.P., Rule 1311, 42 Pa.C.S.A. (Interlocutory Appeals by Permission).

The instant case raises a single question: whether the commencement of an action during the lifetime of a decedent bars a survival action brought by the personal representative after death. To this end, appellants contend that Pennsylvania’s wrongful death and survival statutes should be interpreted in pari materia to bar post-mortem claims whenever a lifetime claim has been filed. We have carefully considered the convoluted argument advanced by appellants; However, in view of the plain language of the statutory sections in question, we conclude that the result appellants urge us to reach is simply incorrect.

The object of all statutory interpretation is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S.A. § 1921(a). Our supreme court has amplified this rule of construction by explaining that where a section of a statute contains a given provision, the omission of such a provision from a similar section is significant to show that a different legislative intent existed for the two sections. Commonwealth v. Bigelow, 484 Pa. 476, 484, 399 A.2d 392, 395 (1979), quoting Novicki v. O’Mara, 280 Pa. 411, 416, 124 A. 672, [673] (1924) (“A change of language in separate provisions of a statute is prima facie evidence of a change of intent.”). See also Corley v. Commonwealth Board of Probation and Parole, 83 Pa.Commw. 529, 478 A.2d 146 (1984) (applying Bigelow). The Pennsylvania wrongful death statute provides as follows:

§ 8301. Death Action
(a) General rule.—An action may be brought to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime.

42 Pa.C.S.A. § 8301(a) (emphasis added). By contrast, the statute governing survivorship actions contains no language barring post-mortem litigation where a lifetime action has been filed.

§ 8302. Survival action
All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.

42 Pa.C.S.A. § 8302. In view of the plain language of sections 8301 and 8302, we conclude that the legislature intended to bar wrongful death claims where the decedent filed a lifetime action, but did not intend such a bar to operate against survival actions.

The order of the lower court is affirmed.

      . Appellants have cited numerous cases, both federal and state, in support of their position. As the Honorable H. Terry Grimes has addressed each of appellants’ contentions in minute detail in his comprehensive opinion, we will not repeat that material here. We note, however, that the panel ruling in Dauer v. Armstrong World Industries, 390 Pa.Super. 586, 568 A.2d 1327 (1990) is not incompatible with the conclusion reached instantly. Although Bauer holds that a plaintiff may not proceed in an action for wrongful death against parties who were defendants in the decedent’s lifetime action for damages, it does not address the question of whether a survival action is barred under that circumstance.


author: DEL SOLE, Judge:

text:
    595 A.2d 1320
    W. Guy BEARFIELD and Betty J. Bearfield v. James F. HAUCH, M.D., Appellee. Appeal of W. Guy BEARFIELD, Appellant.
    Superior Court of Pennsylvania.
    Argued May 15, 1991.
    Decided Sept. 4, 1991.

      Bernard J. Hessley, Warren, for appellant.
    William P. Delaney, Erie, for appellee.
    Before CAVANAUGH, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

This is an appeal from an order granting Appellee, Dr. Hauch’s motion for Summary Judgment in a case in which Appellants sought damages based upon the theories of lack of informed consent and res ipsa loquitur. We affirm.

In their Complaint Appellants allege that in a surgical procedure Dr. Hauch removed Appellant, Guy Bearfield’s gallballader. Following the surgery Mr. Bearfield experienced severe pain at the site of his surgical incision. A second surgery was later performed to repair nerve endings which were severed or sutured during the first operation. It is specifically alleged that Dr. Hauch failed to obtain Mr. Bearfield’s informed consent and that he performed acts constituting negligence. Mrs. Hauch’s claim, based upon a loss of consortium, is derivative to her husband’s cause of action.

Through requests for admission filed upon behalf of Dr. Hauch, Appellants admitted that they did not intend to have an expert testify on their behalf. Following this admission Dr. Hauch filed a Motion for Summary Judgment. The trial court concluded that absent some expert testimony in support of either legal theory Appellant could not succeed in proving their case before a jury, and an award of Summary Judgment in favor of the defendant was appropriate.

On appeal the Appellants challenge the trial court’s ruling. With respect to the their theory of recovery based upon lack of informed consent, they argue that no expert testimony was necessary to establish their case where Mr. Bearfield was never advised of any risks of his surgery including the risk that a nerve would be incarcerated in the incision.

Appellants claim must fail. If Appellants were simply able to prove that Mr. Bearfield was not properly advised of the risks attendant to the surgery he was about to undergo and that he experienced problems following the surgery, it would be insufficient to establish that Appellants are entitled to recover based upon a lack of informed consent. It is necessary to Appellants case for them to prove that the problems Mr. Bearfield experienced following his surgery were a medically recognized risk of that surgery. Although expert medical testimony would be necessary to inform the jury that the ultimate result was a risk of the surgery, expert testimony is not needed to demonstrate that the risk involved is of such a nature that it must be disclosed to the patient. Clemons v. Tranovich, 403 Pa.Super. 427, 589 A.2d 260 (1991).

A physician has a duty to disclose to a patient those risks which a reasonable person would consider material to his or her decision to undergo treatment. Festa v. Greenberg, 354 Pa.Super. 346, 511 A.2d 1371 (1986). In Sagala v. Tavares, 367 Pa.Super. 573, 533 A.2d 165, 167 (1987) we stated:

[I]n determining whether a physician breached his duty to his patient, ‘the standard of care is not what a reasonable medical practitioner would have done in the situation but whether the physician disclosed those risks which a reasonable man would have considered material to his decision to whether or not to undergo treatment.’ Festa, supra, [354 Pa Super.], at 511 A.2d at 1375. Materiality is established by a two step process. First, the trier of fact must be supplied with expert information as to the nature of the harm and the probability of it occurring. However, it is the trier of fact, not the expert, who must decide the materiality of the risk involved and whether the probability of that type of harm is a risk which a reasonable patient would consider in rendering a decision on medical treatment.

In this case where Appellants promised to offer no expert testimony that the harm suffered by Mr. Bearfield was a known risk of the procedure he underwent, a jury would not be able to determine that the injury was a known risk which should have been disclosed.

Expert testimony was also not offered in support of Appellants’ negligence claims based upon the theory of res ipsa loquitur. Appellants assert that such testimony was not necessary since the jury would be able to conclude, from their common knowledge, that this injury would not have occurred in the absence of negligence.

The doctrine of res ipsa loquitur does allow a jury to infer the existence of negligence and causation where the injury does not ordinarily occur in the absence of negligence. Clemons v. Tranovich, supra. Expert medical testimony only becomes necessary in such a case, to indicate that the injury would not have occurred absent negligence, when there is no fund of common knowledge from which laypersons can reasonably draw the inference or conclusion of negligence. Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981).

In Gallegor by Gallegor v. Felder, 329 Pa.Super. 204, 478 A.2d 34 (1984) the absence of expert medical testimony was at issue in a case in which the plaintiff sought to establish his case utilizing the doctrine of res ipsa loquitur. Considering circumstances where a boy suffered injuries to his facial nerve during an ear operation, the court remarked that “no inference of negligence arises merely because a surgical operation terminates in an unfortunate résult which might have occurred even though the proper care and skill had been exercised.” 329 Pa.Superior Ct. at 210, 478 A.2d at 37. The court held that the the harm suffered could not be found to be so simple and obvious that a conclusion of negligence could be reached by a layperson based upon ordinary experience and comprehension. It stated: “This is simply not the equivalent of a situation in which a surgical tool is negligently left inside a person after an operation.” Id. In view of this conclusion and since no evidence was offered to show that the harm which occurred to the child would not have occurred in the absence of medical malpractice the trial court’s' grant of a compulsory non-suit was affirmed.

We too find that this case does not involve a situation in which a jury could make a conclusion of negligence based upon ordinary experience and comprehension. We agree with the position of Dr. Hauch who maintains that a jury does not have within their common knowledge the resources to determine whether a nerve entrapment of a tenth intercostal nerve during a gallbladder operation would not occur in the absence of negligence or is perhaps an unavoidable consequence of this type of surgery. Expert guidance would be necessary to ensure the jury did not reach a decision based upon pure speculation. Because we agree with the trial court that expert testimony was necessary to establish that the injury would not have occurred absent negligence, we conclude the award of Summary Judgement was appropriately entered.

Summary Judgment affirmed.


author: CIRILLO, Judge:

text:
    595 A.2d 1322
    Rita RICCELLI, Executrix of Estate of Sam Riccelli, Appellant, v. Richard FORCINITO.
    Superior Court of Pennsylvania.
    Argued May 7, 1991.
    Decided Sept. 4, 1991.

      Nancy Winkler, Philadelphia, for appellant.
    Debra L. Mazen, Philadelphia, for appellee.
    Before ROWLEY, P.J., and CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County. We reverse.

Appellant Rita Riccelli (“Riccelli”), Executrix of the Estate of Sam Riccelli, deceased, filed an action in equity seeking a court order requiring appellee Richard Forcinito (“Forcinito”) to vacate the premises at 2840 Nautilus Road, Philadelphia, Pennsylvania, and to pay rent due from 1985 to the present. Riccelli also sought an order enjoining Forcinito from committing waste on the property.

Riccelli and the decedent were married in 1966. The decedent died testate on November 8, 1987, leaving the property on Nautilus Road to his wife. However, in 1962, four years before Riccelli and the decedent were married, the property was purchased by the decedent and Carmen Pirozek (“Carmen”) as tenants by the entireties with the right of survivorship. The decedent and Carmen were not married at the time of the purchase, nor did they marry thereafter.

Carmen resided in the Nautilus Road home from the time it was purchased until the time of her death in 1984. During that time, Carmen paid all the utility bills, tax bills, home insurance payments, and home improvement costs on the premises. Carmen made all mortgage payments from 1966 until her death, and thereafter her children made all mortgage payments.

On May 30, 1987, six months before his death, the decedent had the deed for the property transferred from “Sam Riccelli, widower,” to Sam Riccelli in his own right. Forcinito, Carmen’s son, is currently residing at the property and has resided there since 1985.

On May 16, 1989, a hearing was held before the Honorable Nicholas D’Alessandro. Judge D’Alessandro issued findings of fact and conclusions of law, and entered an order disposing of the action in equity and denying Riccelli’s motion for a permanent injunction. The court found that the tenancy by the entireties intended by Sam Riccelli and Carmen failed because they were not legally married, and therefore they held the property by joint tenancy. See Bove v. Bove, 394 Pa. 627, 149 A.2d 67 (1959); DeLoatch v. Murphy, 369 Pa.Super. 255, 535 A.2d 146 (1987). The court then determined that Sam Riccelli’s marriage to Rita severed the joint tenancy between Sam Riccelli and Carmen, and thereafter the owners held the property as tenants in common. The court concluded, therefore, that Forcinito owed no rent to Riccelli. The court also found that Riccelli benefitted from the accrued equity in the home, and therefore Carmen’s estate was entitled to reimbursement for Sam Riccelli’s share of the mortgage payments, utility payments, and home improvement payments.

Post-trial motions were filed and thereafter Judge D’Alessandro issued amended conclusions of law, announcing that:

The Estate of Carmen Pirozek is entitled to reimbursement for that share of the mortgage, utility and home improvement payments which Sam Riccelli would have been obligated to pay as a tenant in common with Carmen Pirozek. See, e.g., Fascione vs. Fascione, 272 Pa.Super. 530, 416 A.2d 1023 (1979), (Husband was entitled to reimbursement for the amount of wife’s portion of mortgage payment on marital domicile notwithstanding the fact that husband had retained exclusive possession of property for himself since mortgage payments would increase equities of both parties).
As it has been determined that the Estate of Carmen Pirozek and the Estate of Sam Riccelli are joint owners as tenants in common, Plaintiff is not entitled to back rents from defendant for his occupancy of the property which is the subject of the dispute.

(emphasis added).

On appeal, Riccelli raises the following issues for our review:

1. Whether the [trial] court erred in finding that the joint tenancy with right of survivorship that Sam Riccelli and Carmen Pirozek held in 2840 Nautilus Road, Philadelphia, Pennsylvania was severed when Sam Riccelli married Rita Riccelli?
2. Whether the [trial] court erred in denying plaintiff/appellant rent due from defendant/appellee for the period of time during which defendant/appellee occupied 2840 Nautilus Road, Philadelphia, Pennsylvania?
3. Whether the [trial] court erred in finding that Carmen Pirozek’s estate is entitled to reimbursement for that share of mortgage, utility, and home improvement payments that Sam Riccelli would have been obligated to pay as a tenant in common?
4. Whether the [trial] court erred in denying plaintiff/appellant’s motion for a permanent injunction enjoining defendant/appellee from committing waste to the property and ordering defendant/appellee to vacate the property known as 2840 Nautilus Road, Philadelphia, Pennsylvania?

Our scope of appellate review in equity matters is narrow. We are limited to determining whether the findings of fact are supported by competent evidence, whether an error of law was committed, or whether there was a manifest abuse of discretion. Alderfer v. Pendergraft, 302 Pa.Super. 210, 214, 448 A.2d 601, 603 (1982).

It is well established that seisin by the entireties is limited to grantees who are husband and wife. Maxwell v. Saylor, 359 Pa. 94, 58 A.2d 355 (1948); Masgai v. Masgai, 460 Pa. 453, 333 A.2d 861 (1975); Frederick v. Southwick, 165 Pa.Super. 78, 67 A.2d 802 (1949). Two people who are not married to one another cannot hold title to land as tenants by the entireties; marriage, in addition to the unities of time, title, interest and possession, is an essential ingredient of such an estate. Masgai, 460 Pa. at 457, 333 A.2d at 863. Here, Sam Riccelli and Carmen, who were not husband and wife, did not hold title to an entireties estate, despite the language in their deed of purchase. Maxwell, 359 Pa. at 96, 58 A.2d at 356.

In Maxwell, supra, our supreme court was presented with this issue. There, Raymond Maxwell and Emma Saylor purchased property in Montgomery County, taking title in the name of Raymond “Maxwell and Emma Maxwell, his wife,” as “tenants by the entireties.” Maxwell and Emma Saylor were not married. When Maxwell died, his wife and daughter filed an action in equity for partition, claiming that Maxwell and Emma Saylor were tenants in common, and therefore the wife and daughter were entitled to an undivided one-half interest in the property. The supreme court disagreed, and stated:

It is true, of course, that Maxwell and Emma Saylor, even though she was designated in the deed as Mrs. Maxwell, could not take title as tenants by the entireties, since that type of seisin is limited to grantees who are legally husband and wife. But it was held in Thornton v. Pierce, 328 Pa. 11, 194 A. 897, 899, that although a deed under such circumstances is ineffective to create a tenancy by the entireties it is not wholly invalid, there being no reason why the grantees, like any other two persons, cannot take title in some form of dual ownership “appropriate under the circumstances.”

359 Pa. at 96, 58 A.2d at 356. The appropriate form of tenancy is to be determined by the intention of the parties, “the ultimate guide by which all deeds must be interpreted.” Hindman v. Farren, 353 Pa. 33, 44 A.2d 241 (1945). See also Isherwood v. Springs-First Nat. Bank in Cambridge Springs, 365 Pa. 225, 74 A.2d 89 (1950); Zomisky v. Zamiska, 449 Pa. 239, 296 A.2d 722 (1972). In Maxwell, the court considered the grantees’ declared intent, as evidenced by the language of the deed, and concluded that this declaration

was equivalent to stating in so many words that they desired to establish a right of survivorship^] ... joint tenancy with the right of survivorship best effectuates their intention to the extent legally permissible, that being the form of tenancy for unmarried persons most nearly resembling the tenancy by the entireties enjoyed by husband and wife, since in both instances the survivor takes the whole.

359 Pa. at 96, 58 A.2d at 356.

This principle is applicable to the case before us today. Sam Riccelli and Carmen Pirozek took title to the property in the name of “Sam Riccelli and Carmen Riccelli, his wife,” as “tenants by the entireties,” thus evidencing their intent to create a right of .survivorship. Id. See also DeLoatch v. Murphy, 369 Pa.Super. 255, 535 A.2d 146 (1987) (a deed naming plaintiff, who was married to another, and defendant, with whom plaintiff was living at the time, as tenants by the entireties created a joint tenancy with right of survivorship); Frederick, supra (same); cf. Teacher v. Kijurina, 365 Pa. 480, 76 A.2d 197 (1950) (where no language evidencing intent to create a survivorship interest, i.e., no language indicating the form of the estate, appeared in the deeds, the deed operated to convey an estate of tenancy in common; distinguishing Maxwell v. Saylor, supra); Estate of Bruce, 372 Pa.Super. 16, 538 A.2d 923 (1988) (deeds conveying property to grantee and his “wife,” although grantee and “wife” were not actually married, did not create a joint tenancy with right of survivorship but rather a tenancy in common where the deed did not express the form of estate and the clear expression of intent to include a right of survivorship was thus lacking; distinguishing Maxwell v. Saylor, supra).

Therefore, we agree with the trial court’s initial finding that Sam Riccelli and Carmen held the estate as joint tenants with the right of survivorship. The language in the deed, which included the form of estate taken, “tenants by the entireties,” was sufficiently specific to create a survivorship right. See Maxwell, supra; DeLoatch, supra; Frederick, supra; see also American Oil Co. v. Falconer, 136 Pa.Super. 598, 8 A.2d 418 (1939) (the intent necessary to establish survivorship as an. incident of an estate held by joint tenants must be expressed with sufficient clearness to overcome the statutory presumption).

A joint tenancy is severable by any action of the parties, voluntary or involuntary, which destroys one or more of its unities. Estate of Kotz, 486 Pa. 444, 406 A.2d 524 (1979); Vargas v. Brinton, 305 Pa.Super. 357, 451 A.2d 687 (1982); P.L.E. Estates in Property § 26. The effect of the severance is to make the parties tenants in common. Hayes v. Stephenson, 192 Pa.Super. 392, 161 A.2d 900 (1960). The trial court concluded as a matter of law that Sam Riccelli’s marriage to Rita Riccelli severed the joint tenancy between Sam Riccelli and Carmen Pirozek. The court relied upon the case of Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 (1976) to support this conclusion. For the following reasons we find that the trial court’s reliance upon Shoup is misplaced, and its decision an error of law.

The facts and the issues presented to the supreme court in Shoup are not reconcilable with those in the instant case. In Shoup, the parties, James Shoup and Donna Shoup, were married. They purchased property following their marriage by conveyance to them as tenants by the entireties. The parties were divorced in 1972, at which time they owned the property as tenants in common. James Shoup petitioned the court for partition of the property, and the court entered a decree of partition. Donna Shoup challenged the validity of the partition decree. On appeal, the supreme court vacated the partition decree, and held that the chancellor had erred in “entering a [partition] decree solely on the basis of the complaint and answer without having held an evidentiary hearing” and that “the chancellor in effect grant[ed] judgment on the pleadings in favor of the plaintiff[-husband].” Id., 469 Pa. at 170, 364 A.2d at 1322. The supreme court stated that the chancellor’s decision was based on the erroneous conclusion that the defenses which the wife had attempted to set up under new matter were not valid defenses to partition. Id.

Contrary to the trial court’s interpretation, the supreme court’s decision in Shoup does not stand for the proposition that a joint tenancy, established by virtue of the fact that the parties intended to create a right of survivorship but were not legally married, see Maxwell, supra, is severed when one of the cotenants marries. There is no precedent or support for this declaration. . Moreover, the fact that the cotenants are male and female cannot alter our conclusion, and should not confuse the issue.

It is, of course, the law of this Commonwealth that a tenancy by the entireties is severed upon divorce, and the parties’ continued joint ownership becomes that of a tenancy in common. 23 Pa.C.S. § 3507; Sterrett v. Sterrett, 401 Pa. 583, 166 A.2d 1 (1960); Barale v. Barale, 282 Pa.Super. 213, 422 A.2d 1082 (1980). However, this doctrine has no application to the facts before us. Sam Riccelli’s marriage could not sever the joint tenancy because marriage is not a necessary unity for the creation of a joint tenancy. Compare Cochrane’s Estate, 342 Pa. 108, 20 A.2d 305 (1941) with Frederick, supra. Sam Riccelli’s marriage did not destroy any of the four unities of a joint tenancy—time, title, interest and possession, see Yannopoulos v. Sophos, 243 Pa.Super. 454, 365 A.2d 1312 (1976), and therefore had no effect on Sam Riccelli’s and Carmen’s relationship as joint tenants.

In summary, the trial court’s conclusion that the joint tenancy was severed by Sam Riccelli’s marriage to Rita Riccelli was erroneous. Upon Carmen’s death in 1984, the property vested in Sam Riccelli as the surviving tenant. See Philadelphia & R.R. Co. v. Lehigh Coal & Navigation Co., 36 Pa. 204 (1860); see also In re Brose’s Estate, 416 Pa. 386, 206 A.2d 301 (1965). Any claims by the executrix for rents due from Forcinito, if any, during his occupancy since Carmen’s death must be determined on remand. In making this determination, the trial court may consider Forcinito’s mortgage, utility, and tax payments, as well as any necessary repairs or expenses attributable to Forcinito during the relevant period of occupancy. See Dech’s Appeal, 57 Pa. 467 (1868) (joint tenant was entitled to contributions from his cotenant for the expense of repairs necessary to the enjoyment of the property). We are confident that the trial court will work toward an equitable remedy.

We reverse and remand for proceedings consistent with this opinion. Jurisdiction relinquished.

      . At common law, the doctrine of survivorship was a recognized incident to a joint estate. See American Oil Co. v. Falconer, 136 Pa.Super. 598, 8 A.2d 418 (1939). The American doctrine, on the other hand, holds the creation of joint estates in disfavor and instead presumes that tenants hold as tenants in common, without the right of survivorship. See Zomisky v. Zamiska, 449 Pa. 239, 296 A.2d 722 (1972); Pennsylvania Bank & Trust Co. v. Thompson, 432 Pa. 262, 247 A.2d 771 (1968); Margarite v. Ewald, 252 Pa.Super. 244, 381 A.2d 480 (1977); see also Note, Important Differences Between American and English Property Law, 27 Temple L.Q. 45 (1953). This doctrine found expression in the legislature’s enactment of Acts 1812, March 31, P.L. 259, 5 Sm.L. 395, § 1, which was later expressly saved from repeal by Acts 1972, June 30, P.L. 508, no. 164, § 3(b), effective July 1, 1972, and transferred to 68 P.S. § 110 in 1974.' The act reads:
      § 110. Lands held by joint tenancy to descend as estates of tenants in common. .
      If partition be not. made between joint tenants, whether they be such as might have been compelled to make partition or not, or of whatever kind the estates or thing holden or possessed be, the parts of those who die first shall not accrue to the survivors, but shall descend or pass by devise, and shall be subject to debts, charges, curtesy or dower, or transmissible to executors or administrators, and be considered to every other intent and purpose in the same manner as if such deceased joint tenants had been tenants in common: Provided always, That nothing in this act shall be taken to affect any trust estate.
      1812, March 31, P.L. 259, 5 Sm.L. 395, § 1 (emphasis added).
      Notwithstanding the legislative presumption against the right of survivorship in joint tenancies, the doctrine of survivorship has not been wholly abolished. This incident may still exist when expressly provided for by deed or will or when it arises by necessary implication. Arnold v. Jack’s Executors, 24 Pa. 57 (1854); Sturm v. Sawyer, 2 Pa.Super. 254 (1898); Redemptorist Fathers v. Lawler, 205 Pa. 24, 54 A. 487 (1903); see also Maxwell, supra; Frederick, supra.

        . § 3507. Division of entireties property between divorced persons, (a) General rule.—Whenever married persons holding property as tenants by entireties are divorced, they shall, except as otherwise provided by an order made under this chapter, thereafter hold the property as tenants in common of equal one-half shares in value and either of them may bring an action against the other to have the property sold and the proceeds divided between them.
      ******
      23 Pa.C.S. § 3507(a). See 68 P.S. § 501 (repealed, 1990, Dec. 19, P.L. 1240, No. 206, § 6).

      . We have determined that appellant Rita Riccelli, Executrix of the Estate of Sam Riccelli, is the owner of the property in question. A fortiori, appellant is entitled to possession of the property. Therefore, we are not inclined at this interval to address the trial court’s order denying appellant’s request for injunctive relief enjoining Forcinito from committing waste on the property. Such action, in light of our disposition, is unnecessary. See Pa.R.C.P. 1576. See also 23 Standard Pennsylvania Practice 2d § 123:4 (“Waste is founded on privity of title, and where there is no privity of title, the injury is a mere trespass ... the destructive acts of a trespasser may not be enjoined by a proceeding to stay waste[.]”)


author: HESTER, Judge:

text:
    596 A.2d 162
    Judy LENHART, Appellant, v. TRAVELERS INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted Nov. 19, 1990.
    Filed Aug. 5, 1991.
    Reargument Denied Oct. 1, 1991.

      Thomas Bruno, II, Philadelphia, for appellant.
    Andrea Simpson, Philadelphia, for appellee.
    Before McEWEN, FORD ELLIOTT and HESTER, JJ.
   HESTER, Judge:

Judy Lenhart appeals from the April 16, 1990 order entered by the Court of Common Pleas of Philadelphia County granting judgment to appellee, Travelers Insurance Company, which is a party in its capacity as assignee of the Pennsylvania Assigned Claims Plan (the “Plan”). The trial court determined that appellee was not liable under the provisions of the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S. §§ 1701, et seq. for injuries appellant sustained while a passenger on a bus owned and operated by Trailways Lines, Inc. (“Trailways”). This determination rests on its conclusion that since Trailways was self-insured at the time of the accident, appellant was disqualified from receiving Plan benefits. We disagree with the trial court's conclusion that Trailways was a self-insured and reinstate the arbitration award in favor of appellant.

The record reveals the following. On June 5, 1987, appellant was injured in Pennsylvania when the Trailways bus in which she was traveling abruptly stopped to avoid colliding with a car that had entered the lane in which the bus was traveling. The identity of the driver of the car was never discovered. Neither appellant nor anyone in her household owns an automobile. Appellant filed a claim against Trailways seeking recovery for medical costs, lost wages, and pain and suffering. While appellant’s claim was being processed, Trailways was forced into chapter seven bankruptcy. Appellant rejected a compromise of her claim that was offered by Trailways’s trustee in bankruptcy. Instead, she filed a claim with the Plan. She instituted this action against appellee once her claim was denied on grounds that she was ineligible for benefits because she had been injured while an occupant of a vehicle owned by a self-insured. See 75 Pa.C.S. § 1752(a)(5) (parties eligible to recover from the Plan do not include occupants of self-insured vehicles).

After preliminary proceedings regarding Trailways’s joinder as an additional defendant, the case was ordered to arbitration. On August 14, 1989, the arbitrators awarded appellant the sum of $15,000.00. Appellee then filed an appeal to the court of common pleas. It contended that appellant was not eligible to recover against the Plan because she was injured while an occupant of a vehicle owned by a self-insured. The parties agreed to submit the issue to the trial court on briefs and the record, which included certified copies of documents concerning Trailways’s status as a self-insured, various exhibits, and a transcript of the proceedings before the arbitrators. This appeal followed the trial court’s determination that appellant could not recover benefits since she was injured while an occupant of a vehicle owned by a self-insured.

We first address appellee’s allegation that appellant has waived her right to appeal. Appellee suggests that the trial court decided this action on a “case stated” basis, and therefore, the parties are bound by the trial court’s judgment unless they expressly reserved the right to appeal. See Clearfield Bank & Trust Co. v. American Manufacturers Mutual Insurance Co., 344 Pa.Super. 588, 497 A.2d 247 (1985). We do not believe that the record supports appellee’s position that this action was submitted on a case stated basis. It is clear that the proceedings were in the nature of cross-motions for summary judgment, and the trial court determined what was clearly a question of law by examining the record and by considering briefs submitted by the parties. The parties did not submit the action on an agreed statement of facts and then request the court to render judgment. Instead, they agreed that the record was adequate to determine the question of law presented, and they submitted briefs on the issue. Accordingly, this was not submitted on a case stated basis, and appellee’s argument is meritless. See Wertz v. Anderson, 352 Pa.Super. 572, 508 A.2d 1218 (1986) (if it is not clear that matter was submitted on a “case stated” basis, court should not construe it as having been).

We also reject appellee’s suggestion that appellant’s failure to file post-trial motions to the order finding in favor of appellee results in waiver of the issues under Pa.R.C.P. 227.1(b). As indicated above, the trial court’s decision was made by considering the record, consisting of the arbitration transcript and various exhibits, and briefs filed by the parties. No evidence or findings of fact were introduced or presented. The note to Pa.R.C.P. 227.1(c) provides in pertinent part, “A motion for post-trial relief may not be filed to orders disposing of preliminary objections, motions for judgment on the pleadings or for summary judgment, motions relating to discovery or other proceedings which do not constitute a trial." (Emphasis added). Since the decision by the trial court was based solely on its consideration of the record, without the introduction of any evidence, it clearly is an order either disposing of what in effect were cross-motions for summary judgment or at the very least, an order entered in a proceeding that did not constitute a trial. Consequently, post-trial motions actually were prohibited under Pa.R.C.P. 227.1. We now address the merits of the issues presented in this appeal.

Initially, we observe that the intent of the legislature in enacting the Plan was to provide coverage to satisfy an eligible injured person’s loss when there is no other source of recovery. The statutory provisions relating to the Plan are contained in 75 Pa.C.S. §§ 1751-1757. Section 1754 provides that an eligible claimant may recover against the Plan if he has no other source of applicable uninsured motorist coverage and otherwise is entitled to recover in a tort action against a party who has failed to comply with MVFRL requirements (including payment of the minimum to satisfy judgments).

Section 1752 defines an eligible claimant in relevant part as someone who is a resident of Pennsylvania, injured in a motor vehicle accident in Pennsylvania, and not an owner of a motor vehicle required to be registered. Appellant satisfies those requirements. Section 1752 also contains several disqualifications from receiving benefits. The relevant disqualification is that a claimant is ineligible if injured while an occupant of a vehicle owned by a self-insurer. 75 Pa.C.S. § 1752(a)(5).

We find persuasive appellant’s argument that Trailways never was a valid self-insured under the MVFRL because it never complied with the conditions for such status expressly delineated in its conditional certificate of self-insured status that had been issued by the Pennsylvania Public Utilities Commission (“PUC”). Accordingly, we conclude that appellant is entitled to recover against the Plan since she otherwise was an eligible claimant and since she was not an occupant of a vehicle owned by a self-insured at the time of the accident.

The following facts are not in dispute. Trailways was issued an order from the PUC concerning its right to operate as a self-insured in Pennsylvania. The PUC gave approval to Trailways to operate as a self-insured “subject to [five] conditions.” Reproduced record at 19a. Those conditions were:

(i) That Trailways secures certificates of self-insurance from the Pennsylvania Department of Transportation pursuant to 67 Pa. Code § 223.5 for all vehicles registered in Pennsylvania within sixty (60) days of the date of this order is entered;
(ii) That the Annual Reports filed with the Commission continue to indicate a sound financial condition.
(iii) That Applicant file bi-annual claims reports detailing the number, and reserve amount of claims.
(iv) That Applicant meet the terms of its Agreement with MBank of Dallas, Texas and that Applicant submit verification from MBank on a bi-annual basis which shows that the amount of property in the custody of MBank equals the reserve amount of outstanding claims.
(v) That the Commission retains the authority to alter or rescind the self-insurer status granted herein if it appears to the Commission that the Applicant’s qualifications as a self-insurer or its practices under its self-insurance program are inadequate to protect the Pennsylvania public.

It is not disputed that Trailways failed to satisfy any of the five conditions. Id. at Sa-lOa. Its compliance with these requirements consisted of filing one, 1986, annual report. Under these circumstances, we conclude that the order was never effective legally and never conferred self-insured status on Trailways.

• In the order, the PUC expressly made the grant to Trailways of self-insured status subject to the fulfillment of those requirements, none of which were ever fulfilled by Trailways. The trial court recognized that Trailways never complied with the conditions imposed by the PUC, trial court opinion, 6/5/90, at 3, but the court concluded that these failures had no legal significance. Id. We strongly disagree. If a legal document is subject to conditions precedent before it is operational, it simply cannot be considered effective legally until those conditions are fulfilled. See National Products Co. v. Atlas Financial Corp., 238 Pa.Super. 152, 364 A.2d 730 (1975); Moyer v. Diehl, 139 Pa.Super. 59, 11 A.2d 651 (1940); Allen N. Lashner, Inc. v. Commonwealth Department of Highways, 1 Pa.Cmwlth. 486, 275 A.2d 403 (1971).

The order itself never gave Trailways self-insured status absolutely. In other words, the status was not conferred and then made subject to revocation. Instead, the initial grant of that status was made “subject to,” i.e., conditioned upon, fulfillment of four items. Trailways’ wholesale failure to fully satisfy even one of those items means that it never had self-insured status under the express terms of the order.

Since Trailways was not self-insured at the time of the accident, appellant was not an occupant of a vehicle owned by a self-insured at the time of the accident. She therefore is not disqualified from receiving benefits from the Plan by operation of section 1752(a)(5). We believe that this decision comports with the express purpose of the Plan, which is to compensate people injured in automobile accidents who have no source of recovery because they are not required to have automobile insurance.

Accordingly, the order of the trial court is reversed and the award of the arbitrators is reinstated. Jurisdiction is relinquished.

      . Appellee argues that since Trailways had an ICC permit to operate as a self-insured, this certificate is conclusive as to self-insured status for purposes of the MVFRL. We do not see the relevance of Trailways’s ICC status to the inquiry herein. We are examining the provisions of the MVFRL, and appellee’s liability pursuant to that statute. Furthermore, the United States Supreme Court has held that states may demand financial responsibility from interstate carriers for intrastate travel as long as these requirements do not exceed the financial guarantees required by the ICC for interstate commerce. Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969 (1940). ICC regulations also permit states to regulate the minimum intrastate financial requirements for interstate motor carriers. The MVFRL requirements of $15,000 per person and $30,000 per accident for intrastate travel in Pennsylvania do not exceed ICC requirements. Since the Pennsylvania requirements are not inconsistent with the ICC requirements, they are not preempted by the federal requirements and can be applied by us in interpreting the MVFRL.


author: FORD ELLIOTT, Judge:

text:
    596 A.2d 165
    COMMONWEALTH of Pennsylvania v. Albert LAWRENCE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1991.
    Filed Aug. 8, 1991.

      Suzanne M. Swan, Bethel Park, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

This is a direct appeal from a judgment of sentence entered on January 11, 1990, in the Court of Common Pleas of Allegheny County. Appellant was convicted of robbery and criminal conspiracy and sentenced to a term of five to ten years imprisonment. Appellant alleges several claims of ineffective assistance of his trial counsel. Based upon our review of the record, we must vacate the judgment of sentence and remand for resentencing consistent with this Opinion.

On April 20, 1989, appellant was charged with one count of robbery and one count of criminal conspiracy. Pursuant to a defense request, appellant participated in a lineup on June 22, 1989. Following the denial of several pretrial motions, some of which were filed pro se, appellant proceeded to a jury trial before the Honorable Walter R. Little on November 8, 1989. At trial, appellant was represented by a public defender. Appellant was convicted of both charges on November 9, 1989. Counselled timely post-trial motions were filed and denied following a hearing on January 11, 1990. Previous to the hearing the Commonwealth had filed a Notice of Intention to Proceed under 42 Pa.C.S. § 9712 on January 4, 1990. Appellant filed a pro se motion to modify his sentence on January 12, 1990, but was denied relief by the trial court on January 18, 1990. Appellant filed his timely notice of appeal to this court on February 12, 1990.

On March 1, 1990, the trial court ordered appellant to file a concise statement of the matters complained of on appeal pursuant to Pa.R.A.P.1925. Counsel complied with the trial court order on March 30, 1990. The trial court filed its opinion addressing appellant’s matters on July 3, 1990. On appeal, appellant is represented by the Office of the Public Defender, which filed a brief with this court on October 3, 1990. Appellant filed a supplemental pro se brief on January 2, 1991. Upon review of the pro se brief, appellant’s counsel filed a petition to remand for the appointment of new appellate counsel on February 20, 1991, and this petition is presently before this panel.

The trial court has summarized the following facts established at trial.

On or about April 11, 1989, Defendant Albert Lawrence and an unidentified black accomplice entered the business premise of Ja-Kays Beer Distributors located at 4235 Murray Avenue in the Squirrel Hill section of Pittsburgh. It was approximately 9:40 in the evening, and the Defendant sat on a stool in front of the counter behind which the victim, Sherry Stoernell, was working. The Defendant handed the victim a bag and issued instructions to fill it with money. After complying with the Defendant’s instructions, the victim was told to get down on the floor, while the Defendant and his accomplice made their departure with $273 from Ja-Kays Beer Distributor.

Trial court opinion, 7/3/90 at 2.

Appellant has raised the following issues in the counselled brief for our review:

I. Was defense counsel ineffective for not taking steps to prevent the violation of the presumption of innocence in favor of Mr. Lawrence?

A. Could the jury reasonably conclude from the evidence presented that Mr. Lawrence had engaged in prior criminal activity?
B. Was defense counsel ineffective for not requesting a mistrial, for withdrawing his objection to the submission of the photo array to the jury, and for withdrawing his request for a limiting instruction?

II. Was defense counsel ineffective for not filing post-trial motions alleging that the evidence was insufficient to establish the applicability of 42 Pa.C.S. § 9712?

A. Does the evidence prove that a firearm was “visibly possessed” by the defendant or his accomplice during the offense?
B. Was defense counsel ineffective for not objecting to or filing post-trial motions on the imposition of the mandatory sentence?

Initially, we need to address counsel’s petition to remand for the appointment of new appellate counsel in light of appellant’s allegation of counsel’s ineffectiveness on appeal. Appellant filed a pro se appellate brief on January 2, 1991. The pro se brief was forwarded by the prothonotary to appellate counsel for review in compliance with Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595 (1990). Following review, counsel filed a petition on February 20, 1991, stating that the issues presented in the pro se brief were meritless, but that the pro se had alleged ineffective assistance of appellate counsel for not raising those issues; therefore, a remand is necessary for the appointment of new appellate counsel. See Commonwealth v. Ellis, supra.

Although in Ellis we established a procedure which requires counsel to petition this court for a remand to the trial court for the appointment of new appellate counsel when the client alleges counsel’s ineffectiveness on appeal, such a procedure was not meant to conflict with the standards enunciated by the supreme court in Commonwealth v. McBee, 513 Pa. 255, 520 A.2d 10 (1986). In McBee, the supreme court held:

[w]hen appellate counsel asserts a claim of his or her own ineffective assistance of counsel on direct appeal, the case should be remanded for the appointment of new counsel except (1) where, it is clear from the record that counsel was ineffective or (2) where it is clear from the record that the ineffectiveness claim is meritless.

Commonwealth v. McBee, supra, 513 Pa. at 261, 520 A.2d at 13. We see no reason why the McBee standard should not be applicable equally to instances where a pro se is alleging ineffective assistance of appellate counsel. Although counsel may be required to petition this court so as to insure that the ineffectiveness claims are presented, any grant of such a petition must be premised on the McBee standard. To do otherwise, would allow a pro se to make a mere assertion of ineffective assistance of appellate counsel so as to require the automatic remand for new appointed counsel. Such a practice would create administrative burdens and judicial delays similar to those we painstakingly sought to alleviate in Ellis, and clearly would undermine the very holding of that case. Therefore, in accordance with Ellis and McBee, appointed counsel, upon review of the pro se allegations of ineffectiveness should petition this court for a remand, citing the client’s allegations of ineffectiveness. However, it is this court which will thereafter decide upon a review of the record whether a remand is in fact required. We find this procedure consistent with McBee and Ellis and emphasize that it is not the pro se allegations of ineffectiveness which we will review, but rather counsel’s petition for remand filed pursuant to representation of appellant. Consequently, upon our review of the instant record, we cannot deem appellate counsel’s stewardship ineffective in this matter; therefore, the petition to remand for the appointment of new appellate counsel is denied. Thus, we will review appellate counsel’s brief in this instance. Commonwealth v. Ellis, supra.

Initially, appellant argues that Officer Mitchell’s testimony at trial regarding appellant’s photograph and his Pittsburgh identification number was sufficient to suggest to the jury that appellant had engaged in prior criminal activity. The testimony to which appellant objects occurred during an exchange between the prosecutor and Officer Mitchell.

[BY MR. DUTKOWSKI:]
Q. Okay, and what did you do as a result of seeing and interviewing Mr. DeMarco?
[BY DETECTIVE MITCHELL:]
A. I knew at that time he couldn’t have committed the robbery.
Q. Okay, so what did you do, then?
A. So a couple of days later, I put together another photo array.
Q. Okay, I’m going to show you what’s been marked as Commonwealth Exhibit 2, do you recognize this, a series of seven photographs?
A. Yes, I do.
Q. Is that the second photo array that you put together after seeing and speaking with Mr. DeMarco?
A. Yes I did.
Q. And what did you do with those photographs?
A. Which ones?
Q. Commonwealth Exhibit No. 2, what did you do with those?
A. I took those to Mrs. Stoernell on April 18th, on Tuesday, April the 18th, and I showed her, she viewed the photos. After viewing the photos, she positively identified Pittsburgh ID 99047, that belonging to a one Albert Lawrence.

Notes of Testimony, 11/8/89 at 68.

In Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972), the supreme court held that not every testimonial reference to a photographic identification of an accused is per se prejudicial; thereby, requiring a new trial. In Allen the court held “that after the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.” Id., 448 Pa. at 181, 292 A.2d at 375; see also Commonwealth v. Reiss, 503 Pa. 45, 468 A.2d 451 (1983). The Allen court also stated that “a mere passing reference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference____” Id. The supreme court delineated further on this issue in Commonwealth v. Brown, 511 Pa. 155, 161, 512 A.2d 596, 599 (1986) (plurality) (concurring opinion filed by Hutchinson, J.; Larsen, J. concurred in the result; Flaherty, J. filed a dissenting opinion in which Nix, C.J. and Zappala, J., joined) by stating:

... the possession by the police of one’s photo does not ineluctably prove a previous conviction. At the most it proves only that the police had a photo of the defendant on file.
When an identification is made from police photo files, the photos become an integral and inseparable part of the evidence. When the initial identification is challenged at trial and their reliability and fairness put to question, they become evidence subject to examination by the jury. At that time it is difficult, if not impossible, consistent with the truth, to shield the fact that a defendant’s picture was obviously on file prior to his identification. Even when the file photos are not challenged and the photos are not shown to the jury, but somehow they have been alluded to during the course of the trial, it is a small deduction to conclude that for some reason the defendant had prior police contact of some kind. However, as we emphasized above, prior contact with the police in itself proves nothing. It does not prove a prior record or previous crime, it only proves a previous contact. Police photo files are an essential, elemental, absolute necessity for the detection of crime and the safety of the public. They are not a secret, they have existed since photography. That they exist and are used on a 24 hour basis, and are a tool of identification in almost every case where the perpetrator is not personally known to a victim, is common everyday knowledge. To obviate their use upon the ground that they are a possible source of prejudice is far too large a step in this mobile world of quick and easy escape.

Emphasis in original. Finally, in Commonwealth v. Cambridge, 386 Pa.Super. 542, 546, 563 A.2d 515, 517 (1989), citing Brown and Allen, we held that “in Pennsylvania there is no per se rule against the use of ‘mugshots’ as a method of identification.”

Instantly, appellant argues that although the photograph was not referred to as a “mugshot,” the jury reasonably could have inferred from the surrounding circumstances that it was in fact a mugshot. We disagree. Our review of the record reveals that even though Officer Mitchell referred to appellant’s Pittsburgh identification number, there was no testimony in regard as to how the photo became part of the police files nor to any prior criminal conduct on behalf of appellant. Although no testimony existed to explain police possession of the photo, the most that could be inferred from such a reference was that appellant had had prior contact with the police and not a prior record or a previous conviction. Accordingly, we do not believe that appellant was prejudiced in this matter. See Commonwealth v. Brown, supra; Commonwealth v. Cambridge, supra.

Moreover, appellant contends that he was prejudiced when the photo array, which included his photograph, was shown to the jury. In Commonwealth v. Brown, supra, 511 Pa. at 161-62, 512 A.2d at 599-60, a case wherein the Commonwealth displayed a photo array including the accused to the jury, the supreme court stated:

[h]ence, neither a reference nor an argument may be made from the existence of police photo files that indicate that they imply or suggest a previous record of conviction. Where used in evidence the court shall charge the jury, when requested by a defendant, that because one’s photo is in the possession of the police does not prove a previous conviction, and suggests no more than that there was a previous police contact, the reason for which, is not known and has no bearing on the issues before them. If we indulge the view that jurors cannot or will not follow the law, we are left with nothing.

Consequently, appellant’s argument regarding the displaying of the photo array to the jury is meritless as well as his allegations that his trial counsel was ineffective for failing to request a mistrial following Officer Mitchell’s remark, and withdrawing his objection to showing the photo array to the jury. See Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989) (counsel cannot be deemed ineffective for failing to raise a baseless claim).

Appellant’s alternative argument concerning the photo array is that trial counsel was ineffective for withdrawing his request for the trial court to give a cautionary instruction in this matter. In Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), our supreme court set forth the requisite factors that a party must establish in order to prevail on a claim of ineffectiveness. They are: (1) the present claim is of arguable merit; (2) there was no reasonable basis for not pursuing that claim; and, (3) appellant was prejudiced by counsel’s actions. Commonwealth v. Pierce, supra.

In Commonwealth v. Brown, supra, the supreme court held that when a photo array is used in evidence, the trial court, upon a defense request, shall give a cautionary instruction to the jury informing them that police possession of the defendant’s photograph suggests nothing more than a prior police contact with the defendant.

Also, in Commonwealth v. Cambridge, supra, we affirmed the judgment of sentence where a photo array, which included a photo of the accused, was admitted into evidence, but never shown to the jury, all references to the pertinent array described them as photographs, and a cautionary instruction was given to the jury dismissing any possible link between appellant’s prior involvement in criminal activity and the present police possession of his photograph. Given these cases, it appears that appellant has established a claim which is at least of arguable merit. Commonwealth v. Pierce, supra.

Next, appellant argues that there was no reasonable basis for not pursuing that claim. Specifically, appellant argues that trial counsel had no reasonable basis for failing to attempt to cure the prejudice that resulted from Officer Mitchell’s testimony and the jury’s viewing of the photo array.

“A decision by counsel not to take a particular action does not constitute ineffective assistance if that decision was reasonably based, and was not the result of sloth or ignorance of available alternatives.” Commonwealth v. Collins, 519 Pa. 58, 66, 545 A.2d 882, 886 (1988). Also, a “remand is not required where an adequate record exists [to determine whether counsel could have had a rational basis for his actions] or if it is apparent from the record that trial counsel’s contested actions were ‘within the realm of trial tactics or strategy.’ ” Commonwealth v. Lott, 398 Pa.Super. 573, 579, 581 A.2d 612, 615 (1990) quoting Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976). We believe that the record in the instant case is sufficient to facilitate our review of the basis upon which counsel withdrew his request for a cautionary jury instruction.

After the trial court granted the Commonwealth’s request to display the photo array to the jury, the following exchange occurred.

MR. HOUCK: Now, with response to the photographs, I would object to them as being prejudicial but if in the judge’s discretion he wants to pass them out to as [sic] the jury, then I would ask for an instruction which is set forth in that Commonwealth against Cambridge case.
THE COURT: I think that instruction is true on anything, it would be more than beneficial to you not to give that cautionary instruction. Cautionary instruction would indicate that there’s some problem.
MR. HOUCK: Well, we have no problem hearing that, the district attorney has never referred to them as mug shots, if you remember, fortunately, that’s never come out.
THE COURT: The instruction in the Cambridge case asks — you can’t draw an inference there’s a prior conviction. My indication to them there’s no prior conviction is, in effect, there must be some conviction here. There’s no reasonable interpretation. If you want it, I’ll give it.
MR. HOUCK: That could be very well be a reasonable interpretation.
MR. DUTKOWSKI: I suppose if the Court—
THE COURT: I’ll give it.
MR. DUTKOWSKI: I suppose if the Court substituted instead of prior conviction, you know, conviction, I suppose prior criminal conduct.
THE COURT: That only leads to pertaining to the defendant. If you want it, I’ll give the cautionary instruction.
MR. HOUCK: Let me ask you, Judge, do you plan on circulating it?
THE COURT: I’ll send it out.
MR. HOUCK: That will be all right.
THE COURT: If you want the cautionary instruction, I’ll give it.
MR. HOUCK: I’ll withdraw the request.

N.T., 11/9/89 at 126-128. We believe that it is clear from the record that trial counsel withdrew his request for a cautionary jury instruction based upon a reasonable belief that the instruction itself may have highlighted an inference of prior criminal conduct on behalf of appellant. Given that counsel was aware of the jury instruction and had a reasonable basis for withdrawing his request, we will not substitute our judgment as to which of the various alternatives would have promoted counsel’s client’s interests more effectively. Commonwealth v. Collins, supra. Appellant has not met his burden of establishing that counsel’s actions had no reasonable basis designed to effectuate his interests. Appellant’s claim of ineffective assistance must fail.

Finally, appellant contends that trial counsel was ineffective for failing to object to the trial court’s application of 42 Pa.C.S. § 9712 during his sentencing. Section 9712 of the Sentencing Code mandates that a minimum sentence of five years total confinement be imposed when it is proved by a preponderance of the evidence that a person who has been convicted of a robbery visibly possessed a firearm during the commission of that robbery. 42 Pa.C.S. § 9712. Moreover, 42 Pa.C.S. § 9712 is applicable equally to unarmed accomplices when the Commonwealth proves by a preponderance of the evidence that the unarmed accomplice knew that the firearm was possessed visibly by his co-felon during the commission of the crime. Commonwealth v. Williams, 353 Pa.Super. 312, 509 A.2d 1292 (1986).

A careful review of the record reveals that at no time did the victim see appellant or his accomplice visibly possess a firearm. In fact, the victim specifically testified that she did not know if a weapon was involved at all in the incident. Given the evidence adduced at trial, the trial court erred in sentencing appellant under 42 Pa.C.S. § 9712, and trial counsel was ineffective for failing to object to this trial court error. See 42 Pa.C.S. § 9712; Commonwealth v. Pierce, supra. Accordingly, we vacate appellant’s sentence under 42 Pa.C.S. § 9712 and remand for resentencing consistent with this Opinion.

Judgment of sentence vacated. Case remanded for resentencing consistent with this Opinion. Petition for remand for the appointment of new appellate counsel is denied. Jurisdiction relinquished.

      . In the alternative, appellant has failed to demonstrate how he was prejudiced by counsel’s actions in this matter. In the context of an ineffective assistance of counsel claim, prejudice “is determined by an evaluation of whether 'but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.’” Commonwealth v. Lott, supra, 398 Pa.Super. at 580, 581 A.2d at 616 quoting Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987). Instantly, appellant was identified by the victim in a defense requested lineup and in open court as one of the two men who had robbed her. Given the evidence established against him at trial, appellant has failed to demonstrate how the result would have been any different. Accordingly, appellant has failed to establish trial counsel’s ineffectiveness in this context.