author: CIRILLO, President Judge: ROWLEY, Judge,

text:
    528 A.2d 1385
    COMMONWEALTH of Pennsylvania v. Thomas A. BRUDER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Filed July 21, 1987.

      Carmen P. Belefonte, Media, for appellant.
    Joseph J. Mittleman, Assistant District Attorney, Media, for Com.
    Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence, following a non-jury trial, for driving under the influence of alcohol and related offenses. We reverse and remand.

The issues presented for our review are: (1) whether the criminal complaint should have been dismissed due to its defects; (2) whether certain evidence was properly admitted at trial; and (3) whether the verdict was supported by sufficient evidence.

A patrolman stopped appellant Bruder’s car after the officer saw him pass a red light. The patrolman also witnessed what he described as Bruder’s erratic driving behavior. When the policeman approached Bruder, he noticed indicia of intoxication. The patrolman testified that Bruder was unable to walk in a straight line, heel to toe, or recite the complete alphabet. Appellant was then arrested for driving under the influence of alcohol, and informed of his rights as required by Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 1624-27, 16 L.Ed.2d 694 (1966).

I

Appellant argues that the complaint filed against him was defective and, therefore, should have been dismissed. More specifically, appellant asserts that the complaint violated Pennsylvania Rules of Criminal Procedure 132 and 134.

The alleged violation by the Commonwealth of Rule 132 was its failure to include a verification with the complaint. Rule 132(9) requires that every complaint include a “verification by the affiant that the facts set forth in the complaint are true and correct to the affiant’s personal knowledge or information and belief, and that any false statements therein are made subject to the penalties ... relating to unsworn falsification to authorities____”

In the case at bar, the arresting officer, in filing the complaint, used an old form which was designed to conform to an older version of Rule 132. The complaint did not conform to the current version of Rule 132 because it did not contain the required clause that false statements were subject to the penalties of unsworn falsification.

The trial court found that based on Pa.R.Crim.P. 150, the defect in the complaint did not warrant dismissal of the charges. Pa.R.Crim.P. 150 provides that a “defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons or warrant, or a defect in the procedures of this chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.”

The trial court noted that the defect concerning the absence of a verification was not raised in this case until after the preliminary hearing and suppression hearing. The trial court also observed, and we agree, that the appellant was aware of the charges against him and was not prejudiced by the defect in the complaint.

We express displeasure with the failure of the police to fully comply with the requisite form of a complaint. The plain language of Rule 150, however, does not permit us to discharge the complaint in this particular case because the defect was neither timely raised nor was it prejudicial to the appellant.

Appellant also contends that Pa.R.Crim.P. 134 was violated. Rule 134 provides that in any proceeding initiated by a complaint, the issuing authority shall ascertain and certify on the complaint that there is probable cause, in the form of an affidavit, for the issuance of process.

Notwithstanding appellant’s assertion to the contrary, we discern no language in the rule, or in the comments to the rule, which require the police to personally appear and verify the complaint before the district justice involved in the case. Because we find no violation of Rule 134, we cannot dismiss the complaint on this basis.

Appellant also argues that the defective complaint was a violation of Pa.R.Crim.P. 130(d). We need not address this argument due to our holding that there were no fatal defects in the instant complaint.

II

Bruder argues that certain statements that he made after he was stopped, as well as the results of the field sobriety test, should have been suppressed.

When appellant’s car was stopped, appellant stepped out and approached the police vehicle. The police officer asked appellant for his driver’s license, registration and insurance card. Appellant returned to his car to obtain the requested information. After appellant had provided this information, the police officer asked appellant whether he had been drinking and appellant responded that he had. The police officer also asked appellant where he was going. Appellant responded that he was going home. Bruder argues that these responses should be suppressed because they were made before he was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).

Miranda warnings need be given only when one is subjected to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); Berkemer v. McCarty, 468 U.S. 420, 428-29, 104 S.Ct. 3138, 3144, 82 L.Ed.2d 317 (1984). In order to determine whether the responses made by appellant before he received his Miranda warnings should have been suppressed, we must decide whether they were elicited during custodial interrogation.

In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the United States Supreme Court ruled that a motorist was not in custody when he was stopped by a police officer who asked “a modest number of questions and requested him to perform a simple balancing test visible to passing motorists.” 468 U.S. at 442, 104 S.Ct. at 3151. As in the case at bar, the driver in McCarty was stopped after being suspected of driving under the influence of alcohol, admitted that he had had a few drinks, and failed a balancing test before being advised of his Miranda rights. The Court in McCarty, however, refused to adopt a bright line test which would have definitively answered the question of whether Miranda applies to all traffic stops or whether a suspect need be advised of his rights only when he is formally placed under arrest. 468 U.S. at 441, 104 S.Ct. at 3151. Thus, we are afforded a measure of flexibility in deciding exactly when a suspect has been taken into custody.

In Pennsylvania, “custodial interrogation does not require that police make a formal arrest, nor that the police intend to make an arrest____ Rather, the test of custodial interrogation is whether the individual being interrogated reasonably believes his freedom of action is being restricted.” Commonwealth v. Meyer, 488 Pa. 297, 307, 412 A.2d 517, 521 (1980) (quoting Commonwealth v. Brown, 473 Pa. 562, 570, 375 A.2d 1260, 1264 (1977)). Interrogation in this context is defined as questioning “ ‘expected to elicit a confession or other incriminating statements.’ ” Commonwealth v. Bracey, 501 Pa. 356, 367, 461 A.2d 775, 780 (1983) (quoting Commonwealth v. Sero, 478 Pa. 440, 453, 387 A.2d 63, 70 (1978)).

In Commonwealth v. Meyer, the Pennsylvania Supreme Court ruled that the driver of a car involved in an accident who was suspected of driving under the influence of alcohol and who was told by police to wait at the scene until additional police arrived was in custody for purposes of Miranda. The Meyer court reasoned that because the defendant had a reasonable belief that his freedom of action had been restricted, statements elicited before he received his Miranda warnings should have been suppressed. 488 Pa. at 307, 412 A.2d at 522. See generally Annotation, Right of Motorist Stopped by Police Officers To Be Informed at That Time of His Federal Constitutional Rights Under Miranda v. Arizona, 25 A.L.R.3d 1076 (1969) (cases collected).

We rely on Meyer in finding that Bruder reasonably believed that his freedom of action had been restricted. Undoubtedly, he was not free to leave when he made the statements elicited. That the policeman’s questions were intended to elicit incriminating statements remains obvious. We cannot readily accept an alternative reason why Bruder was asked if he had been drinking. Thus, based on the reasoning in the Meyer case, we conclude that Bruder’s response that he had been drinking should have been excluded as a statement made during custodial interrogation without the benefit of Miranda warnings. Meyer, 488 Pa. at 307, 412 A.2d at 522. See generally McCarty, 468 U.S. at 441 n. 34, 104 S.Ct. at 3151 n. 34 (United States Supreme Court cites Meyer in connection with discussion which intimates that duration of and circumstances surrounding traffic stop impact on the determination of whether there was a custodial interrogation for purposes of providing Miranda warnings). As we have established that custodial interrogation existed at the point that Bruder was asked whether he had been drinking, the subsequent response concerning his destination should also have been excluded.

Bruder’s statement, “You don’t know who I am,” was admitted into evidence over the objection of counsel. Although this statement was made before Bruder received his Miranda warnings, it was a spontaneous utterance not made in response to a question by the police officer. In Commonwealth v. Bracey, 501 Pa. 356, 461 A.2d 775 (1983), the Pennsylvania Supreme Court ruled that a statement is admissible notwithstanding the lack of Miranda warnings if it was not given in response to police conduct which evoked an admission, or if it was freely given without compelling influences. Id., 501 Pa. at 367, 461 A.2d at 780 (quoting Commonwealth v. Sero, 478 Pa. 440, 453, 387 A.2d 63, 70 (1978)). It is clear from the record that this particular statement by Bruder was freely made in the absence of evocative police conduct. Therefore, it was properly admitted.

After appellant informed the police officer that he had had a few drinks, the police officer asked the appellant to recite the alphabet and to walk in a straight line, heel to toe. Appellant argues that these field sobriety tests should be suppressed. It is settled in Pennsylvania that “[Requiring a driver to perform physical tests ... does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial, and therefore, no Miranda warnings are required.” Commonwealth v. Benson, 280 Pa.Super. 20, 29, 421 A.2d 383, 387 (1980).

Although requiring Bruder to walk in a straight line was a physical test which need not have been preceded by Miranda warnings, we cannot readily reach the same conclusion regarding Bruder’s recitation of the alphabet. Whereas the constitutional protection against self-incrimination which Miranda was designed to protect does not encompass physical evidence, it does refer to testimonial evidence. Benson, 280 Pa.Super. at 29, 421 A.2d at 387. “Testimonial evidence is communicative evidence as distinguished from demonstrative or physical evidence.” Com monwealth v. Fernandez, 333 Pa.Super. 279, 284, 482 A.2d 567, 569 (1984).

We view the recitation of the alphabet as essentially communicative in nature. Therefore, because the recitation was elicited before Bruder received his Miranda warnings, it should have been excluded as evidence. Benson, 280 Pa.Super. at 29, 421 A.2d at 387 (citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). See Miranda, 384 U.S. at 479, 86 S.Ct. at 1630.

In order to reverse on the basis of the introduction of inadmissible evidence, we must find an abuse of discretion as well as a showing of actual prejudice resulting from the tainted evidence. Commonwealth v. Sweger, 351 Pa.Super. 188, 195, 505 A.2d 331, 334 (1986) (citing Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985)); see also Commonwealth v. Smoyer, 505 Pa. 83, 88, 476 A.2d 1304, 1307 (1984) (effect of tainted evidence); Commonwealth v. Johnson, 227 Pa.Super. 96, 102-03, 323 A.2d 813, 816 (1974) (same).

Based on our analysis which determined that evidence obtained during Bruder’s custodial interrogation was inadmissible, we hold that it was an abuse of discretion to admit such evidence. Introduction of the tainted evidence was clearly prejudicial to Bruder because the absence of such evidence might very well have led to a different verdict. Thus, we must reverse and remand for proceedings consistent with this opinion.

Ill

The last issue presented is whether there was sufficient evidence to find appellant guilty of driving under the influence of alcohol, 75 Pa.C.S. § 3731.

Our standard of review for this issue is limited. We must “view the evidence in the light most favorable to the Commonwealth [as verdict winner] and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984) (citing Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980)).

Even though we have determined in part II of this opinion that certain evidence should not have been admitted, we also recognize that when reviewing the sufficiency of the evidence, the “entire record with all evidence actually received must be considered, whether or not the lower court’s rulings thereon were correct.” Commonwealth v. Minnis, 312 Pa.Super. 53, 55, 458 A.2d 231, 232 (1983). See Commonwealth v. Manhart, 349 Pa.Super. 552, 556, 503 A.2d 986, 988 (1986); see also Commonwealth v. Nelson, 320 Pa.Super. 488, 494, 467 A.2d 638, 641 (1983) (In passing upon the sufficiency of the evidence, we evaluate all of the evidence, whether erroneously received or not. The proper remedy for prejudicial error due to inadmissible evidence is grant of a new trial with such evidence excluded). In Minnis, we found that the record as a whole indicated that the evidence was sufficient, but we reversed and remanded because we ruled that certain out-of-court identifications should have been suppressed.

We have the benefit of a recent consideration of the sufficiency of evidence in connection with 75 Pa.C.S. § 3731, by the Pennsylvania Supreme Court in Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986). The sole issue in Griscavage was whether there was sufficient evidence to establish guilt beyond a reasonable doubt on the charge of driving while under the infuence of alcohol.

The Court stated that in order to establish the defendant’s guilt, “the Commonwealth had to prove: (1) that he was operating a motor vehicle, (2) while under the influence of alcohol to a degree which rendered him incapable of safe driving.” Griscavage, 512 Pa. at 544, 517 A.2d at 1258; 75 Pa.C.S. § 3731(a)(1) (citations omitted). As in the case before us, there was no dispute in Griscavage regarding the first element. With respect to the second element, the Court quoted an interpretation of the phrase “under the influence of alcohol,” which, though based on a prior statute, is applicable to the current version of § 3731(a)(1).

The statute does not require that a person be drunk, or intoxicated, or unable to drive his automobile safely in traffic, «but merely that the Commonwealth prove beyond a reasonable doubt that the defendant was operating his automobile under the influence of intoxicating liquor ... The statutory expression “under the influence of intoxicating liquor” includes not only all the well known and easily recognized conditions and degrees of intoxication, but also any mental or physical condition which is the result of drinking alcoholic beverages and (a) which makes one unfit to drive an automobile, or (b) which substantially impairs his judgment, or clearness of intellect, or any of the normal faculties essential to the safe operation of an automobile.

Griscavage, 512 Pa. at 544-45, 517 A.2d at 1258 (emphasis in original) (quoting Commonwealth v. Horn, 395 Pa. 585, 590-91, 150 A.2d 872, 875 (1959)).

In the instant case, the record indicates that appellant had been drinking, had been driving erratically, and had performed poorly in field sobriety tests. The trier of fact concluded that those faculties essential to the safe operation of an automobile were substantially impaired by appellant’s drinking.

The Griscavage case instructs us to consider indicia of intoxication together with the other circumstances surrounding the traffic stop. Based on all the evidence presented in the trial court, these indicia and circumstances support an inference of substantial impairment of faculties sufficient to satisfy the test in Horn.

We recently upheld a conviction for driving under the influence in a case that was factually similar to the instant case. In Commonwealth v. Dougherty, 351 Pa.Super. 603, 609, 506 A.2d 936, 939 (1986) (Cirillo, J., now P.J.), we held that the evidence was sufficient to support a conviction under 75 Pa.C.S. § 3731 where the defendant was observed operating a motor vehicle that was swerving from side to side. Upon stopping the vehicle in Dougherty, the police noticed the odor of alcohol and an accumulation of alcoholic beverages inside the vehicle. The driver in Dougherty did not perform well in field sobriety tests and had difficulty walking and standing upright without placing his hands on his vehicle. Although in the case before us there was no evidence of an accumulation of alcoholic beverages inside the vehicle, we find that the Dougherty case is substantially similar to the case at bar and we rely on it as a basis for our decision.

Based on our application of Griscavage and Dougherty, and viewing the evidence as a whole in the light most favorable to the Commonwealth, we conclude that there was adequate support for finding the appellant guilty of driving under the influence of alcohol. As we discussed earlier, however, and as we did in Minnis, we must still reverse and remand. See Nelson.

Reversed and remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

ROWLEY, J., files a concurring and dissenting statement.

ROWLEY, Judge,

concurring and dissenting:

While I agree with the majority’s disposition of the first and third issues concerning dismissal of the criminal complaint and sufficiency of the evidence, I respectfully disagree with the conclusion that appellant’s statements should have been suppressed under Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980). I think that Meyer is distinguishable on its facts and that the facts in this case closely parallel those in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Considering also that the U.S. Supreme Court cited Meyer as an example of the confusion among various jurisdictions in applying Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) to situations involving motorists stopped for traffic violations, I think that Berkemer is controlling in this case. I would affirm the judgment of sentence.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    529 A.2d 1
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard W. SMAIL, Appellee.
    Superior Court of Pennsylvania.
    Argued March 17, 1987.
    Filed June 16, 1987.
    Reargument Denied Aug. 20, 1987.

      William M. Kern, Clarion, for Com., appellant.
    James J. Panchik, Assistant District Attorney, Kittan-ning, for appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   DEL SOLE, Judge:

Defendant-Appellee was charged on March 24, 1986 with four (4) counts of Theft By Failure to Make Required Disposition of Funds Received (18 Pa.C.S.A. § 3927(a)). The Criminal Complaint and the Information stated that the Appellee had committed this crime of theft when, in his capacity as Treasurer of the Chiefs’ of Police Association of Southwestern Pennsylvania, he intentionally took $2,350.00 for his own use. (He wrote three checks payable to himself and a fourth payable to a third party). On June 10, 1986, the Appellee filed an Omnibus-Pre-Trial motion, seeking, inter alia, to quash the information. The opinion and order of July 14, 1986, quashing the Information, appear to hold that the Treasurer of any organization may use the funds of that organization for his or her own purposes as long as they are able to pay the bills of the organization as they come due. The trial court found that since the Information did not charge that the Appellee failed to make any required dispositions of funds received (an element of 18 Pa.C.S.A. 3927(a)), that the statute did not apply to the Appellee’s activities in this case.

“The decision to grant or deny a motion to quash is within the sound discretion of the trial judge and will be reversed on appeal only where there has been a clear abuse of discretion.” Commonwealth v. Niemetz, 282 Pa.Super. 431, 439, 422 A.2d 1369, 1373 (1980). After reviewing the record we find that such an abuse has occurred and we reverse the trial court’s order quashing the Information and remand for trial on the Information as filed by the Commonwealth. ____

The sole issue in this case is whether the Information properly charged the Appellee with Theft by Failure to Make Required Disposition of Funds Received (18 Pa.C.S.A. 3927(a)). This section of the Crimes Code is comprised of the following elements:

1. The obtaining of property of another;
2. Subject to an agreement of known legal obligation upon the recipient to make specified payments or other disposition thereof;
3. Intentional dealing with the property obtained as the defendant’s own; and
4. Failure to make the required disposition of the property.”

Commonwealth v. Fritz, 323 Pa.Super. 488, 493, 470 A.2d 1364, 1366 (1983).

An additional section deals with presumptions in regard to government or bank officers which is not relevant here.

It is the fourth-element, failure to make the required disposition, which is the key element in determining if the information was properly quashed by the trial court. The Appellee argues that since the Information alleged no facts in support thereof, nor was there any testimony presented at the hearing that Appellee Smail failed to make required disposition of the Association’s funds, that he cannot be forced to stand trial.

The Pennsylvania Supreme Court recently decided the case of Commonwealth v. Rosenzweig, 514 Pa. 111, 522 A.2d 1088 (1987), in which the Court frowned on technical distinctions in interpreting provisions of the Crimes Code dealing with theft. In Rosenzweig the trial court quashed the Information which, among other things, charged the defendant with one count of theft by failure to make required disposition of funds. (18 Pa.C.S.A. § 3927). The Superior Court affirmed. It was alleged that the defendant, a pharmacy clerk for Esquire Drug Stores, had entered into contracts with General Mills and Eastern Coupon Clearing House, permitting Esquire to mail in manufacturers’ coupons for reimbursement. Rosenzweig mailed coupons (not obtained from pharmacy customers) to the above named companies, who in turned mailed reimbursement checks made payable to Esquire. Rosenzweig intercepted these checks, endorsed Esquire’s name and deposited them into his personal account. There was no evidence that Esquire was ever missing any money.

The Informations were quashed in Rosenzweig because the court found that Esquire did not have ownership rights in the checks, i.e., that Esquire suffered no loss of property (an element of § 3927), and was thereby not a “victim” of any theft. The Supreme Court disagreed, avoiding a technical interpretation of the statute, in finding that Esquire did have a property interest or “right” in the checks issued by virtue of the fact that it was the named payee. The Court went on to hold that:

If the facts alleged in the instant case are proven, Appellee, by taking checks made payable to Esquire and depositing them in his own account, contrary to a known legal obligation, as Esquire’s clerk, to deposit such checks in Esquire’s account, clearly “obtain[ed] property subject to a known legal obligation” to make a specified disposition, and “intentionally deal[t] with the property obtained as his own and fail[ed] to make the required” disposition.

Commonwealth v. Rosenzweig, supra, 514 Pa. p. 117, 522 A.2d p. 1091.

In the case sub judice, the Appellee’s argument, especially in light of the decision in Rosenzweig, is unconvincing and a very narrow interpretation of the fourth element, i.e., failure of the defendant to make the required disposition of property. This element infers that failure to make the required disposition includes intentionally making an improper disposition of the funds or using the money for purposes other than for which they were intended. Commonwealth v. Coward, 330 Pa.Super. 122, 478 A.2d 1384 (1984). This section of the Crimes Code was derived from the Model Penal Code. “It was designed to require the actor to meet the obligation under which he undertook to collect monies or property of another.” Commonwealth v. Fritz, supra, 323 Pa.Superior Ct. at 493, 470 A.2d at 1366. As the Treasurer of the Chiefs’ of Police Association of Southwestern Pennsylvania, Appellee was to make reports of all monies received and disbursed by the Association. Monies collected by the Association were deposited into a bank account selected by the Executive Committee and all disbursements drawn on funds of the Association were to be co-signed by the President and Treasurer.

The Information charged that on three (3) occasions the Appellee drew checks on the Association’s account, payable to himself, and on the fourth occasion to a third party for a personal obligation. These dispositions are clearly not “required” dispositions of the funds in question and the failure to make the required disposition may be shown without the Commonwealth having to prove that there was ever an occasion when a disbursement of funds was required from the Association and there was not sufficient funds in the account to cover disbursements.

This position does not conflict with our holdings in other cases dealing with this issue as they were decided on factually dissimilar situations. In both Commonwealth v. Fritz, supra, and Commonwealth v. Crafton, 240 Pa.Super. 12, 367 A.2d 1092 (1976), commingling of funds was acceptable and no criminal liability attached until the moment when the actor failed to make the required disposition or payment. Unlike the case sub judice, the defendants in the above cited cases were business agents clearly in a position to commingle funds and it was logical to find that criminal liability attached only when a defendant of this nature failed to make required dispositions. Clearly it is illogical to assert that a Treasurer of an organization can commingle that organization’s funds with his own for personal use and unless some obligation of the organization’s remains unsatisfied because of such behavior there is no illegal activity.

Our holding that a proper interpretation of “a failure to make the required disposition” includes the making of an intentional improper disposition necessitates that the order of the trial court quashing the information be reversed and that the case be remanded for trial on the Information filed by the Commonwealth.

Order reversed. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.


author: TAMILIA, Judge:

text:
    529 A.2d 3
    Paul H. FLECK v. DURAWOOD INC. and Sears Roebuck & Company, Appellants.
    Superior Court of Pennsylvania.
    Submitted June 8, 1987.
    Filed July 17, 1987.

      G. Alexander Bochetto, Philadelphia, for appellants.
    Malcolm H. Waldron, Jr., Philadelphia, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and WATKINS, JJ.
   TAMILIA, Judge:

Appellants, Durawood, Inc. (Durawood) and Sears, Roebuck and Company (Sears), appeal from an Order by the trial court which denied their motion for new trial or judgment n.o.v. This Court reverses the lower court’s denial of appellant/Sears’ motion for judgment n.o.v. but will permit the verdict to stand as to Durawood.

At trial, appellee sought recovery of commissions he allegedly earned as a salesman of kitchen improvement jobs. A jury awarded appellee recovery against both defendants. Appellee was hired by Durawood (T.T. 10/2/86, p. 84). Durawood had an arrangement with Sears whereby Durawood would manufacture and sell kitchen improvement jobs, advertising under the Sears name and using Sears’ warranties (T.T. at 83). Durawood would receive calls from potential customers and would then send a sales representative to the customers’ homes to enter a contract with the customer (T.T. at 85). Customers were to pay the sales representative who would turn the money over to Durawood. Durawood then would give the salesman a certain commission, figured according to guidelines, and would pay Sears an amount for use of its name (T.T. at 85).

During questioning at trial, appellee testified Sears had never hired him, Sears never told him they would pay him a commission, he had never received nor did he expect to receive any money from Sears, his employment was really with Durawood and not Sears and he did not expect any recovery to come from Sears, but rather from Durawood (T.T. at 35).

The first issue on appeal is whether the trial court erred in not granting appellant’s motion for nonsuit and motion for judgment n.o.v., since appellant urges there was no evidence from which the jury could have found against Sears. The trial court properly noted that the propriety of the court’s action in not granting a motion for a nonsuit is not appealable. What is appealable is the trial court’s Order denying a motion for judgment notwithstanding the verdict (Slip Op., Wallace, J., 3/5/87) (citing Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984).

As to the trial court’s denial of appellant/Sears’ motion for judgment n.o.v., however, we find we must reverse. In Timberbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 471 A.2d 891 (1984), we outlined our scope of review:

The standard which we employ when reviewing the denial of a motion for directed verdict and a motion for judgment n.o.v. is the same. We will reverse the lower court when we find “an abuse of discretion or an error of law which controlled the outcome of the case.” McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982). In ruling upon these motions, the trial judge must consider “the evidence, together with all reasonable inferences that may be drawn therefrom ... in the light most favorable to the verdict winner.” Carrender v. Fitterer, 310 Pa.Super. 433, 436, 456 A.2d 1013, 1014 (1983). Accepting as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made, and rejecting all testimony and inferences to the contrary, the trial judge must grant said motions when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case. Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Super. 333, 455 A.2d 637 (1982).

Timberbrook, supra, 324 Pa.Superior Ct. at 387, 471 A.2d at 892.

Additionally, in Northwest Savings Ass’n v. Distler, 354 Pa.Super. 187, 511 A.2d 824 (1986), this Court said the grant of a judgment notwithstanding the verdict may only be entered in a clear case where the facts are such that no two reasonable persons could fail to agree that the verdict is improper. Id. (citing Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985); Sperrazza v. Cambridge Mutual Fire Ins. Co., 313 Pa.Super. 60, 459 A.2d 409 (1983)).

The law to be applied in this matter was clear. “Pennsylvania follows the general rule that a person employed on a commission basis to solicit sales orders earns or is entitled to his commissions when the order is accepted by his employer.” Hazell v. Servomation Corp., 294 Pa.Super. 465, 440 A.2d 559 (1982) (quoting Marcin v. Darling Valve and Mfg. Co., 259 F.Supp. 720, 723 (W.D.PA 1966); Wilson Homestead Valve Mfg. Co., 217 F.2d 792, 798 (3rd Cir.1954); Republic Foreign Products Co. v. Southwark Foundry & Machine Co., 269 Pa. 522, 525, 113 A.2d 74, 78 (1921)).

There was no evidence proffered by the appellee in this case that would substantiate a conclusion that appellee and Sears had ever been in any type of employer-employee relationship. In fact, it was established by testimony of appellee that he was hired by Durawood and not by Sears, he had never received nor did he expect to receive payment by Sears and he had never been promised a commission by Sears. Thus we believe the trial judge committed an abuse of discretion when he denied appellant/Sears’ motion for judgment n.o.v.

Appellant’s next allegation of error is that the trial judge greatly exceeded his authority and neutrality by cross-examining defendant’s only witness. To the contrary, after a review of the trial transcript, we conclude that the trial judge’s questioning was necessary and did not display bias toward any party. In Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982), we said:

‘It is well settled that a trial court always has the right, and sometimes even the duty to interrogate witnesses, in order to clarify evidence,’ or to elicit new information that is necessary to ensure a fair trial. Commonwealth v. Hodge, 246 Pa. Superior Ct. 71, 79, 369 A.2d 815, 819 (1977). A new trial is required, therefore, only when the trial judge’s questioning amounts to an abuse of discretion. Commonwealth v. Elmore, 241 Pa. Superior Ct. 470, 476, 362 A.2d 348, 351 (1976). Because a charge of this nature is of the most serious type, however, “ ‘the record must clearly show prejudice, bias, capricious disbelief or prejudgment’ ” before an abuse of discretion will be found. Kenworthy v. Burghart, 241 Pa. Superior Ct. 267, 271-72, 361 A.2d 335, 338 (1976).

Id., 298 Pa.Superior Ct. at 117, 444 A.2d at 687. There was no such abuse of discretion in the case at hand.

The third issue on appeal is the trial judge’s failure to charge the jury not to regard his questioning and tone of questioning as reflective of the witnesses’ credibility. The record does not show that appellants took any exception to this omission on the trial judge’s part, despite their previous request for the charge at sidebar. The issue, however, has not been preserved for our appeal. See Pa.R.C.P. 227.-1(b)(1) (post-trial relief may not be granted unless the grounds therefor ... were raised in pre-trial proceedings or by motion, objection, point for charge ... or other appropriate method at trial). The trial judge did, in fact, instruct the jury in his preliminary instructions that they should not take any questions that he might ask witnesses as any indication of his opinion as to how they should determine the issues of fact (T.T. at 10-11). Further, the judge told the jury, “You are not bound by any opinion you think counsel or I have expressed concerning the credibility of the witnesses, the weight of the evidence, or the facts proved by the evidence on the inferences to be drawn from those facts.” (T.T. at 15). These preliminary charges were sufficient to remind the jury of the judge’s neutral stance.

The last point appellant brings for our review is that the trial judge failed to fully and properly charge the jury with regard to the law of offset. The trial judge did give the jury an instruction as to the law of offset, but appellants find error in this charge. Appellants did not take exception to those instructions nor did they request additional instructions. In Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977), this Court stated that a party who neither specifically objects to a charge on a particular subject nor offers a specific point for charge waives its right to a judgment n.o.v. (or to appellate review of a trial court’s denial of a motion for judgment n.o.v.). Capan v. Divine Providence Hospital, 270 Pa.Super. 127, 410 A.2d 1282 (1980) and cases cited therein. Accordingly, we are not free to review this allegation of error.

This Court reverses as to the trial court’s denial of appellant/Sears’ motion for judgment n.o.v. and holds that verdict shall stand as to appellant/Durawood.

Order reversed as to appellant/Sears and affirmed as to appellant/Durawood.

Jurisdiction relinquished.


author: BROSKY, Judge: CAVANAUGH, Judge,

text:
    529 A. 2d 6
    COMMONWEALTH of Pennsylvania, Appellant, v. Carmen DORANZO.
    Superior Court of Pennsylvania.
    Argued March 24, 1987.
    Filed July 23, 1987.

      Leonard Deutchman, Assistant District Attorney, Philadelphia, for Com. appellant.
    James A. Lardani, Philadelphia, for appellee.
    Before CAVANAUGH, BROSKY and TAMILIA, JJ.
   BROSKY, Judge:

This appeal, by the Commonwealth, is from an order granting appellee’s petition to return property. The Commonwealth argues that the petition was improperly granted in light of the fact that appellee pled guilty to. 47 counts of receiving stolen property and the property subject to the petition was commingled with items appellee admitted were contraband.

Because we find that the trial court, in effect, imposed an improper burden upon the Commonwealth, we reverse the order in question.

Appellee had been suspected by the Philadelphia Police Department of running an illegal “fencing” operation.

On July 18, 1979 members of that Department executed search and seizure warrants at five different properties owned by appellee. As a result of the execution of those warrants hundreds of items of personal property were seized and taken into police custody. Appellee was arrested on that same date and charged with sixty-seven (67) counts of theft by receiving stolen property. Following a preliminary hearing appellee was held for court on forty-seven (47) of those counts. On November 24,1980 appellee pled guilty to forty-seven (47) counts of theft by receiving stolen property. At the time of the guilty plea it was stipulated by appellee that all of the property involved in the 47 counts was stolen. Furthermore, it was clear at that time that those items had been identified as belonging to designated owners/complainants. On April 23, 1981 appellee filed a petition for return of property seeking return of those items of personal property held by the Philadelphia Police since July 18, 1979 which were neither identified as belonging to nor claimed by any persons other than appellee.

The trial court granted appellee’s petition on March 23, 1982 and the Commonwealth appealed to this Court. We reversed and remanded for further development of the record. 309 Pa.Super. 473, 455 A.2d 708. On April 22, 1983 a second hearing was held on the matter and resulted in the granting of the petition a second time. This appeal followed.

At the second hearing the Commonwealth presented the testimony of three detectives who had been personally involved in the execution of the search warrants and the seizure of the property in question. The collective testimony of the detectives revealed that although personal property was found in dwelling houses there were no signs that anyone had been living in those houses. Furthermore, the property was often grouped together and, to some degree, in the words of one of the detectives, resembled “a small K-Mart.” The property subject to the petition was freely commingled with property admitted by appellee to have been stolen and a known burglar was seen delivering stolen property to one of the residences just prior to the search.

The Commonwealth argues that the testimony regarding the nature and volume of the goods and the way they were arranged when taken in conjunction with appellee’s guilty plea to 47 counts of receiving stolen property circumstantially proves that the contested property was contraband and therefore subject to forfeiture. The Commonwealth admits it does not have direct evidence connecting the personalty in question to illegal activity but insists that illegality can be proven circumstantially. The trial court apparently disagreed stating “that property cannot be forfeited as derivative contraband since it has not been directly traced to illegal activity.” We believe the standard imposed upon the Commonwealth was too strict.

Certainly, it would have been desirable to see direct evidence linking the property in question to illegal activity. This would resolve almost all doubt as to the legality or illegality of the possession of the property. However, the fact that the Commonwealth did not have such direct evidence does not mean that appellee was in lawful possession of the property. The trial court, sitting as fact finder, was required to make a finding as to the appellee’s lawful possession of the property. The Commonwealth has the burden of proving by a preponderance of the evidence that the property in question was contraband. Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976). Preponderance of the evidence is tantamount to “more probable than not.” We believe the Commonwealth sustained this burden.

The Commonwealth introduced irrefutable evidence that the appellee was engaged in a business of receiving and reselling stolen property. The whole of the evidence created a very strong inference that the property in question was illegally possessed. The fact that no one had claimed the property does not necessarily controvert the impression that the property was illegally possessed. There are many reasons which could explain why stolen property could go unidentified. The owner may never have realized that it was stolen, believing it to have been misplaced or lost. Or, despite it being stolen, the owner may not have bothered to report it believing it to be an exercise in futility. Or the property may have been stolen in another county or state and made its way into appellee’s possession. Furthermore, appellee didn’t even offer his testimony to establish that he was in lawful possession of the property or to otherwise explain how he came into its possession or its source.

Proof by the preponderance is often alluded to as a weighing of the evidence and a determination based upon which way the scales are tipped. The Commonwealth’s evidence, in our opinion, tips the scale heavily in its direction. Conversely, appellee chose not to enter any evidence on his behalf while hiding behind what he believed to be a difficult burden to overcome. While the appellee was not obligated to present evidence to support his position, his refusal to do so left the mythical scales tipped in the Commonwealth’s favor and compels a determination in its favor. In our opinion, the burden placed on the Commonwealth has been met. We believe the evidence viewed in its entirety makes it far more probable than not that the property in question was unlawfully possessed. By requiring direct evidence that the property was stolen, the trial court was requiring that the Commonwealth prove unlawful possession, in effect, beyond reasonable doubt. Such a burden could only work to profit one in unlawful possession who could then retain possession of such property by simply hiding behind an oneroús burden. We do not think our law requires such a result. Nor have we found the property in question “guilty by association.”

In Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985), per Brosky, J., we stated that personal property could not be subjected to forfeiture simply because it is of the same type as property which is definitely contraband. In that case a shooting took place with a .38 caliber revolver. Police later confiscated the revolver and also several rifles. We found that the rifles could not be deemed contraband simply because the revolver was derivative contraband. Forfeiture of the rifles would require independent evidence of unlawful possession. However, in the present case, as previously discussed, all the evidence tends to indicate that the property in question was unlawfully possessed.

The Commonwealth firmly established that a “fencing” business was being conducted. Appellee admitted goods found warehoused in his several “residences” were stolen and stolen goods were observed being delivered to one of the “warehouses”. In Maglisco, there was no logical connection between the pistol and the rifles; no reason to assume that the rifles were also contraband, and no other independent evidence that they were unlawfully possessed. Furthermore, unlawful possession in Maglisco would require a finding that the property was used in an unlawful manner. There was no reason to assume that the rifles were also used in an unlawful manner. However, here, the finding of unlawful possession would require a finding that the party claiming lawful possession did not have legal title and the whole of the evidence indicated that he did not. Had the Commonwealth seized a television set in appellee’s personal residence because a second set found in the residence was stolen and the Commonwealth lacked other evidence indicating unlawful possession, we believe Maglisco would have controlled. However, that is not the case and we find that the Commonwealth has met its burden. Consequently, we reverse the order in question.

Order reversed, jurisdiction relinquished.

CAVANAUGH, J., files a dissenting statement.

CAVANAUGH, Judge,

dissenting:

I dissent. Respectfully, I believe that the majority has misread the trial court opinion as requiring that the Commonwealth produce direct evidence that the items in question were in fact contraband. Rather, the lower court made it clear that the Commonwealth failed to meet its evidentia-ry burden because it did not, through direct or circumstantial evidence, provide a direct link between the property at issue and a criminal activity. This requirement of some form of direct link or nexus between the goods subject to forfeiture and a criminal act was discussed in Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976), an opinion that was cited below.

In support of its conclusion that the lower court imposed a burden on the Commonwealth of producing direct evidence, the majority quotes a portion of the trial court opinion which states: “that property cannot be forfeited as derivative contraband since it has not been directly traced to illegal activity.” I submit that the above quote is a close paraphrase of the language in Landy and represents an accurate statement of the law.

I am also concerned with the majority’s emphasis on the appellee’s failure to testify or present evidence that the property in dispute was in fact owned by him. The burden at all times was on the Commonwealth to establish by a preponderance of the evidence that these items were derivative contraband. It was appellee’s absolute right to put the Commonwealth to its proofs, and we cannot, as the majority seems to suggest, draw any inferences whatever from appellee’s decision to allow this case to stand or fall on the Commonwealth’s evidence alone.

Finally, I would agree with the lower court’s determination that the Commonwealth failed to establish by a preponderance of the evidence that the property at issue was contraband subject to forfeiture. The primary thrust of the Commonwealth’s case was that this property was found along with other items which were admittedly stolen goods, and that it therefore constitutes derivative contraband. In the nearly eight years that the property has remained in police custody, the Commonwealth has been unable to establish that these items are owned by anyone other than appellee. I would find that the Commonwealth’s evidence amounts to little more than an assertion of “contraband by association”, and is insufficient to overcome its burden of proof in this matter.


text:
    529 A.2d 10
    Joy CREED, Appellant, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 9, 1987.
    Filed July 27, 1987.

      Thomas Bruno, II, Philadelphia, for appellant.
    James M. Marsh, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and BROSKY, WIEAND, OLSZEWSKI, DEL SOLE, MONTEMURO, TAMILIA, POPOVICH and JOHNSON, JJ.
   DEL SOLE, Judge:

On June 25, 1979, a dog owned by Joy Creed was allowed to run loose and attacked and bit Justin Coffey, a minor. Suit was commenced on behalf of the minor by his parents and natural guardians against the Appellant. At the time of the incident, Appellant had a homeowner’s insurance policy issued by Allstate Insurance Company, the Defendant-Appellee herein. The lawsuit filed on behalf of Justin Coffey sought damages for personal injury to Justin, derivative claims on behalf of his parents and natural guardians and in Count III thereof included a claim for punitive damages. Upon receipt of the Complaint, Ms. Creed forwarded the matter to Allstate Insurance Company and that company caused an appearance to be entered and undertook her defense. However, the company also advised her by letter dated March 13, 1980 that the policy in question, according to Allstate, only provided protection against claims for personal injury and property damage. The carrier further pointed out that there was a claim for punitive damages being made and that this claim was not covered under the terms of her homeowner’s liability policy and any portion of a verdict which would be attributable to punitive damages would not be paid by Allstate.

As a result of the receipt of that letter, Ms. Creed secured the services of personal counsel to work with counsel secured by her insurance carrier in representing her interests in the subject lawsuit.

Ultimately, the time came for the settlement of the personal injury claims and the case was settled for the total sum of $102,000.00, $101,000.00 being paid by Allstate Insurance Company on its behalf and on behalf of its insured and $1,000.00 being paid by Joy Creed, the insured, to settle the claims for punitive damages. The General Release executed on behalf of the minor contained the following language:

It is understood and agreed that this [is] a release of all claims, including, but not limited to, claims for person injuries, claims for property damage, claims for negligent infliction of emotional distress, claims for permanent injuries, claims for future damages, claims for compensatory damages, claims for punitive damages, and claims for medical payments under a certain policy insurance issued by Allstate Insurance Company to Joy Creed, (emphasis added).

Following the settlement of the personal injury action, Joy Creed began the instant lawsuit against Allstate Insurance Company claiming that it had breached its contract of insurance with her by failing to pay the claim for punitive damages, thus requiring her to make a $1,000.00 payment and, for breaching its duty to defend in the claim for punitive damages thereby causing her to retain counsel and incur expenses in the amount of $4,500.00. The Defendant filed appropriate responsive pleadings to the Plaintiffs Complaint. The matter was subsequently tried before a Board of Arbitrators resulting in a verdict in favor of the Defendant from which the Plaintiff appealed. A Motion for Summary Judgment was filed by each party along with supporting Affidavits and the trial court, in ruling on the Motions for Summary Judgment, entered judgment in favor of the Defendant-Appellee, Allstate Insurance Company. We affirm.

First, it is axiomatic in Pennsylvania that an insurer under a general liability policy has two duties to its insured. The first duty is to defend its insured against claims where the allegations are sufficient to bring those claims under the terms of the policy and the second duty is to pay that which it has agreed to pay in appropriate cases under the terms of the policy. See D’Auria v. Zurich Ins. Co., 352 Pa.Super 231, 507 A.2d 857 (1986). The duty to defend is however, limited only to those claims covered by the policy, “[t]hus, the insurer owes a duty to defend if the complaint against the insured alleges facts which would bring the claim within the policy’s coverage if they were true”. Id., 352 Pa.Superior Ct. at 235, 507 A.2d at 859.

The policy in question provides as follows:

Losses We Cover
We will pay all sums arising from the same loss which an insured person becomes legally obligated to pay as damages because of bodily injury or property damage by this part of the policy.

The policy further defines the terms bodily injury and property damages as follows:

“Bodily injury” — means bodily injury, sickness or disease, including resulting death, care and loss of services. “Property damage” — means physical injury to or destruction of tangible property, including loss of its use. The Appellant herein argues that the carrier was required

to pay claims for punitive damages but nowhere does the Appellant cite language in the contract of insurance where the Appellee agreed to indemnify the Appellant for punitive damage claims.

First, it must be pointed out that the question of whether a duty to indemnify arises depends upon the type of claim in issue. It should be noted that an inquiry into whether a loss is within policy coverage is a question of law and may be decided by motion for summary judgment. See: D’Auria v. Zurich Ins. Co., supra; Patterson v. Reliance Ins. Co., 332 Pa.Super. 592, 481 A.2d 947 (1984); and Insurance Company of North America v. State Farm Mutual Insurance Co., 266 Pa.Super. 197, 403 A.2d 611 (1979).

The Affidavits filed in support of the Motions for Summary Judgment support the Appellee’s position that the Appellant’s payment under the terms of the Release was made to satisfy the punitive damage claim. The Affiants to the Affidavits, the father of the minor victim and their counsel, both state that at the settlement conference conducted by the trial court, the Coffeys insisted on the payment of $1,000.00 by the Appellant personally as punitive damages. There is no contest to this in any Affidavits filed on behalf of the Appellant. The affidavits coupled with the Release establish that the Appellant’s payment was to settle the punitive damage claim.

Once having determined that the Appellant’s payment to the Coffeys was in settlement of the claim for punitive damage, the only question remaining is whether the insurer had any obligation to pay the award for punitive damages. We find that it did not.

In Pennsylvania, punitive damages may be awarded for outrageous conduct based, in the case of intentional conduct, on the defendant’s evil motive, or based on the defendant’s reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 393, 485 A.2d 742, 747 (1984). “Punitive damages must be based on conduct which is ‘malicious, wanton, reckless, willful or oppressive’, ...” Id., 506 Pa. at 395, 485 A.2d at 747-748, citing Chambers v. Montgomery, 411 Pa. 339, 344-345, 192 A.2d 355, 358 (1963) and Hugh v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944). In any case, it is evident that claims for punitive damages are based upon conduct. In Feld v. Merriam, supra, the Supreme Court of Pennsylvania adopted Section 908(2) of the Restatement (Second) of Torts, which provides in relevant part:

Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.

Clearly, the nature of punitive damage awards is designed to punish an individual litigant for misconduct and such awards are not bodily injury or property damage awards. Punitive damages are not intended to compensate the victim but to punish the actor. Esmond v. Liscio, 209 Pa. 200, 224 A.2d 793 (1966). In Esmond v. Liscio, Id., 209 Pa. at 215, 224 A.2d at 798, it was clearly stated that an insurer owes no duty to idemnify an insured on an award of punitive damages. There is no functional distinction or difference between punitive damages which arise from intentional conduct or reckless conduct. It is the conduct that is being punished not the victim that is being compensated.

Under the terms of the policy of insurance issued by Allstate, Allstate did not agree to indemnify its insured for claims for punitive damages. While we need not address the question of whether or not persons can insure themselves for punitive damage claims, we do hold that in this case, where the insurer has only agreed to indemnify for bodily injury and property damage, it has no obligation to provide indemnity for punitive damages. Having determined there is no coverage for punitive damages, there was no duty to defend that portion of the case and, consequently, there is no obligation to pay counsel fees. Therefore, the judgment is affirmed.

Order affirmed.


author: WIEAND, Judge:

text:
    529 A.2d 13
    COMMONWEALTH of Pennsylvania v. Derek GREEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1987.
    Filed July 30, 1987.

      Martha Aleo, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

Derek Green was tried by jury and was found guilty of robbery, criminal conspiracy, and possession of an instrument of crime because of his participation in a holdup of a bar at 18th and Callowhill Streets, Philadelphia, on January 4, 1974. Post-trial motions were denied, and a sentence of imprisonment was imposed. On direct appeal, the Superior Court affirmed. Commonwealth v. Green, 264 Pa.Super. 472, 400 A.2d 182 (1979). A petition for allocatur was denied by the Supreme Court.

A P.C.H.A. petition was filed on May 1, 1980, but this petition was subsequently withdrawn. A second P.C.H.A. petition was filed on March 2, 1984. In this second petition, Green alleged that his state and federal speedy trial rights had been violated. Counsel was appointed and filed a brief. However, the P.C.H.A. court denied the petition without a hearing. This appeal followed.

On direct appeal from the judgment of sentence, Green conceded that he had waived the provisions of Pa.R.Crim.P. 1100 but argued that his rights had nonetheless been violated by the granting of an open-ended continuance. This argument was rejected because Green’s admitted waiver of Rule 1100 was for an indefinite period of time. Moreover, the Court observed, Green had never filed an application to have the charges dismissed. Appellant now argues that he is entitled to an evidentiary hearing to determine whether trial counsel rendered ineffective assistance because he failed to argue on direct appeal that Green’s Sixth Amendment right to a speedy trial had been violated.

Although Rule 1100 was designed to implement the constitutional right to a speedy trial, the Sixth Amendment may, nevertheless, “provide a separate basis for asserting a claim of undue delay in appropriate cases.” Jones v. Commonwealth, 495 Pa. 490, 499, 434 A.2d 1197, 1201 (1981). In general, however, the time constraints of Rule 1100 are more demanding and impose upon the Commonwealth stricter time requirements than those judicial decisions interpreting the speedy trial guarantee contained in the Sixth Amendment of the Constitution of the United States. See, e.g., Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). Thus, where a criminal defendant has validly waived his speedy trial rights under Rule 1100 for an indefinite period, his counsel will not be deemed ineffective for failing to argue that his speedy trial rights under the Sixth Amendment were nevertheless violated.

Appellant asks for the first time on appeal that we remand for an evidentiary hearing to determine whether the Commonwealth’s peremptory challenges were exercised in a racially discriminatory manner under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We decline to do so. The issue of possible discrimination in the Commonwealth’s exercise of its peremptory challenges was argued by appellant on direct appeal, but this Court, in reliance upon Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), rejected the argument because there had not been a showing that blacks had been systematically excluded from the jury selection process.

In Batson, the United States Supreme Court re-examined the rule announced in Swain v. Alabama, supra, and held that in the future a case of discrimination could be established by showing the circumstances surrounding the prosecutor’s exercise of peremptory challenges at defendant’s trial. To make out a prima facie case, the defendant was required to show that he was a member of a cognizable racial group and that the prosecution had used peremptory challenges to remove from the venire members of the defendant’s race. When other circumstances were present, they, too, were to be considered in determining whether prospective jurors had been excused solely because of their race in violation of the Sixth Amendment.

In Allen v. Hardy, — U.S. —, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), the Supreme Court held that its decision in Batson was not to be given retroactive application in collateral proceedings attacking convictions which had become final before Batson was decided.

In Commonwealth v. McCormick, 359 Pa.Super. 461, 519 A.2d 442 (1986), a panel of this Court distinguished the holding of Allen v. Hardy, supra, and held that Batson would nevertheless be applied in considering direct appeals from convictions which had not become final at the time Batson was decided.

The present case cannot be distinguished factually from Allen v. Hardy, supra. We hold, therefore, that the decision in Batson will not be applied retroactively where, as here, appellant’s conviction had become final before Batson was decided and is being attacked in collateral proceedings. Indeed, in this case, the same issue of discriminatory use of peremptory challenges by the Commonwealth was raised on direct appeal and was decided adversely to appellant. We will not, pursuant to a request for collateral review, re-open the same issue in order to reconsider our prior decision in light of subsequent developments in the law as pronounced by the Supreme Court in Batson.

Our decision is consistent with decisions of the Supreme Court of Pennsylvania which mandate that new developments in the law are not to be applied retroactively in collateral proceedings attacking convictions which became final before the change occurred. See: Commonwealth v. Harper, 512 Pa. 155, 516 A.2d 319 (1986); Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983); Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982). In the instant case, therefore, we will not remand for an evidentiary hearing to determine whether peremptory chai-lenges were exercised by the Commonwealth in violation of Batson v. Kentucky, supra.

The order denying P.C.H.A. relief is affirmed.

      . Green had appeared in open court, with counsel, on August 14, 1974, and had executed a Rule 1100 waiver for several criminal prosecutions, including the instant matter, in order that pending homicide charges could first be tried. This waiver was reviewed in another appeal and was found to be voluntary, informed, and valid. Commonwealth v. Green, 503 Pa. 278, 469 A.2d 552 (1983).

      . This issue was not raised in appellant’s P.C.H.A. petition and was not considered by the court below. As a general rule, an appellate court will not entertain for the first time on appeal an issue not first raised in the trial court. See: Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d 806 (1985); Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983); Commonwealth v. Albert, 335 Pa.Super. 424, 484 A.2d 775 (1984). We consider this issue in the interests of judicial economy in order to avoid the need for an additional P.C.H.A. petition. Consideration can be given to this issue without prejudice to the parties, for both have argued the issue in their briefs.


text:
    529 A.2d 15
    COMMONWEALTH of Pennsylvania, Appellee, v Elyadagaha WALTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1987.
    Filed July 30, 1987.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

Elyadagaha Walton was tried non-jury and was found guilty of violating 18 Pa.C.S. § 6106 (firearms not to be carried without a license) and 18 Pa.C.S. § 6108 (carrying firearms on public streets in Philadelphia). Oral posttrial motions were made immediately following the finding of guilt and were denied. Walton was sentenced to pay a fine and costs. On direct appeal from the judgment of sentence, Walton contends that the evidence was insufficient to sustain the verdict because “his possession of the firearm occurred while he was performing his duties as a cab driver and had in his possession moneys and property of the cab company for which he was responsible.” Therefore, he argues, he was exempt from the licensing provisions of the statute. We disagree and affirm the judgment of sentence.

The Commonwealth’s evidence was that at or about 8:40 p.m. on November 20, 1984, Officer Richard Cray observed a Yellow Cab stopped at Second and Westmoreland Streets in Philadelphia. The dome light of the cab was lighted and two men were seated in the cab, one behind and the other beside the driver. Because this was an area in which there had been frequent robberies of taxi drivers, Cray suspected that the driver might be in trouble. He went around the block and pulled up behind the stopped cab. He then suggested that the driver step out of the vehicle. When the driver did so, Cray observed a gun on the front seat, protruding from under a cushion on which the driver had been seated. Elyadagaha Walton, the driver, was employed by Yellow Cab Company. He did not have a license to carry a firearm.

The provisions of 18 Pa.C.S. § 6106(a) make it unlawful to carry a firearm, except in one’s place of abode or fixed place of business, without a license. However, 18 Pa.C.S. § 6106(b)(6) creates an exception for “[ajgents, messengers and other employees of common carriers, banks, or business firms, whose duties require them to protect moneys, valuables and other property in the discharge of such duties.” Moreover, the provisions of 18 Pa.C.S. § 6108, which make it unlawful to carry a firearm on the public streets in Philadelphia, are inapplicable if the person carrying the firearm “is exempt from licensing under [18 Pa.C.S. § 6106(b)].” Appellant asks that we interpret the language of 18 Pa.C.S. § 6106(b)(6) to exclude taxi drivers from the licensing requirements of 18 Pa.C.S. § 6106(a) and the proscription of 18 Pa.C.S. § 6108. Cab drivers, he argues, are “employees of common carriers ... whose duties require them to protect moneys, valuables and other property in the discharge of their duties.” We are constrained to reject this argument.

“We have previously held that the exceptions in subsection (b)[] are not elements of the offense which the Commonwealth must prove beyond a reasonable doubt if a conviction is to be sustained, but are rather affirmative defenses which must be proven by the accused.” Commonwealth v. Turner, 339 Pa.Super. 81, 83, 488 A.2d 319, 320 (1985). See: Commonwealth v. Hughes, 268 Pa.Super. 536, 408 A.2d 1132 (1979). In the instant case, the Commonwealth showed that appellant, a cab driver, possessed an unlicensed, operable firearm while driving a taxicab in Philadelphia. The burden of proof then shifted to appellant to come forward with evidence that he was exempt from the licensing requirement of the statute because he was an employee of a common carrier whose duties required him to protect moneys, valuables, or other property in the discharge of his duties. Appellant failed to meet this burden. Although the duties of an employee are generally established by the contract of employment, 1 P.L.E. Agency § 31, in this case there was no evidence of the duties and responsibilities which attached to appellant’s employment by Yellow Cab.

Appellant contends that we can and should take judicial notice of the fact that cab drivers owe a duty to their employers to protect the vehicle which they drive and the fares which they collect. Although the law of agency imposes upon agents and employees a general duty to exercise care in connection with the performance of their duties, cab drivers and other agents are not liable for losses sustained as a result of crimes of robbery. See: 1 P.L.E. Agency § 34; 3 C.J.S. Agency §§ 297, 302. Agents are not specifically required in the discharge of their duties to protect money or property against robbers and other assailants. The provisions of 18 Pa.C.S. § 6106(b)(6) do not exempt all agents or employees who handle money or work with instrumentalities owned by their employers from the statutory proscription against carrying a firearm without a license. To adopt the general interpretation advanced by appellant would be to sanction the carrying of firearms without a license by all types of employees, including waiters and waitresses, store clerks, bank tellers, train conductors, bus drivers, and theater cashiers. It would allow employees to carry firearms without licenses on occasions when an employer could not. We are instructed, in our search for the intent of the legislature, to presume that the legislature did not intend an absurd result. Instead, we must use a common sense approach. Commonwealth v. Turner, supra 339 Pa.Super. at 85, 488 A.2d at 320. See: 1 Pa.C.S. §§ 1903(a), 1921(a), 1922(1). Therefore, we reject the interpretation which appellant urges us to place upon the exception created by the legislature in subsection (b)(6). Such an interpretation would be absurd, for it would allow virtually all employees to carry firearms without licenses.

Instead, we interpret the language “whose duties require them to protect moneys, valuables and other property in the discharge of their duties” to be restrictive. These words limit the applicability of the exception to agents or employees who are hired for the primary purpose of and whose duties are principally related to the protection of money, valuables, and property. The exception includes, but is not necessarily limited to, persons employed as guards, watchmen, protective patrols, and private detectives, who are required in the discharge of their duties to protect money, valuables, and property. The exception does not have broad application to cab drivers. Therefore, appellant was properly convicted.

The judgment of sentence is affirmed.

      . The trial was held before the Court of Common Pleas of Philadelphia County following an appeal by Walton from proceedings in the Philadelphia Municipal Court.

      . It was stipulated that the weapon was operable.

      . 18 Pa.C.S. § 6106(b).


author: BECK, Judge:

text:
    529 A.2d 18
    COMMONWEALTH of Pennsylvania v. James R. HORNEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 20, 1987.
    Filed July 27, 1987.

      Robert C. Rowe, Lebanon, for appellant.
    Rosamond A. Presby, Assistant District Attorney, Lebanon, for Com., appellee.
    Before BECK, JOHNSON and CERCONE, JJ.
   BECK, Judge:

This is a direct appeal from the judgment of sentence of a $200 fine and costs imposed on appellant’s conviction of driving while his operator’s license was suspended, 75 Pa. Cons.Stat.Ann. § 1543 (Purdon Supp.1986). Appellant raises one issue on appeal: whether the trial court erred in finding that the Commonwealth had proved beyond a reasonable doubt that appellant had received notice of suspension of his operator’s license. We find that the trial court was not in error, and we affirm.

On or about October 10, 1985, appellant received a letter from the Pennsylvania Department of Transportation (PennDOT) requesting that he take a special driver’s examination by November 9, 1985, in order to prevent his driver’s license from being suspended. Appellant appeared at the PennDOT examination center in Lebanon County approximately fifteen to twenty minutes prior to closing time on November 9,1985. He was permitted to begin the examination but was not allowed to complete it since the examination center was closing for the day. Appellant was advised that he should telephone PennDOT in order to obtain another authorization letter to enable him to take the examination at a later date. Appellant made two calls a few days later but was unable to obtain an authorization letter. Thereafter, PennDOT mailed to appellant at his correct address a letter dated December 3, 1985, advising him that his driver’s license would be suspended effective January 7, 1986, for his failure to pass the special driver’s examination. Appellant denies having received this or any other notice that his license was suspended.

On January 28, 1986, appellant was stopped by the police. The officer, who knew appellant by sight, stopped him because the officer had previously received information that appellant’s driving privilege had been suspended. When appellant could not produce his license, the officer made a radio check of appellant’s driving record, which confirmed that appellant’s license had been suspended effective January 7, 1986. The officer then issued a citation to appellant for driving under suspension. Subsequently, appellant contacted his present counsel, who obtained for him a letter authorizing him to take a test. Appellant then took arid passed the driving test in February 1986.

■ Appellant was found guilty of driving under suspension by the district justice and appealed to the Court of Common Pleas of Lebanon County. Appellant was again found guilty at a bench trial on June 18, 1986, and the court imposed a fine of $200 and costs. Post-verdict motions were filed and denied, and the court issued an order dated November 3, 1986, ordering appellant to pay the fine imposed on June 18, 1986. This appeal followed.

Our scope of review of a trial de novo in the trial court is to determine whether the findings of fact are supported by competent evidence and to correct conclusions of law erroneously made. We will not disturb on appeal the findings of the trial court absent a manifest abuse of discretion. Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986), allowance of appeal denied, 523 A.2d 345 (Pa.1987).

At issue before us is the trial court’s finding that appellant had actual notice of the suspension of his operating privilege. Our Supreme Court has held that actual notice of suspension is an element of the offense of driving while operating privilege is suspended or revoked. Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975). In Kane, the suspension was not sent to the last address supplied by the defendant to PennDOT. In Kane, the official records listed the defendant’s address in two places as “2424 Poplar Street”, yet the suspension notice had a typed address of “2525 Poplar Street,” an evident clerical error. The Kane Court thus held that proof, without more, of the mere mailing of a notice to any address whatever was not sufficient evidence of actual notice for conviction. Id., 460 Pa. at 584-86, 333 A.2d at 926-27. Where there is additional evidence, however, the evidence may be sufficient to demonstrate actual notice. Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985); Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982).

We are faced with the question of whether the facts of the instant case constitute sufficient “additional evidence” of actual notice. Our courts have not fully defined the limits of the kinds of proof that are acceptable. In Kane, the Court suggested that a certified or registered mail receipt or evidence that the defendant had returned his license to PennDOT would be sufficient. In Burkett, this court relied on evidence that the defendant had returned his license to PennDOT and also that when stopped by the police, defendant attempted to conceal that he was the driver by switching seats with his passenger. In Martin, the defendant’s driving record revealed that a suspension letter had been sent and a month later PennDOT had received an “affidavit”. This court remanded for an eviden-tiary hearing as to the nature of the affidavit, noting that it was unable to determine whether the affidavit demonstrated actual notice of suspension.

This court’s most recent consideration of this issue was in Gray. In Gray, the defendant was suspended for a second consecutive time, beginning on the termination of the previous suspension. Defendant had received notice of the prior suspension and had returned his license, which PennDOT still held. The court noted:

First, the Bureau mailed a notice of suspension to appellant at his correct address. Secondly, appellant had surrendered his license to the Bureau on April 6, 1983, in response to a notice of suspension of his license mailed to him at his correct address. Since appellant received actual notice of his April 1983 suspension by mail, it is likely that a second notice of suspension mailed to the same address was also received. Finally, appellant did not have his driver’s license when he was stopped for a violation on December 3, 1983. This evidence indicates that appellant was aware that he was not allowed to drive. If appellant had no notice of a one-year suspension beginning on October 6, 1983, it is likely he would have sought the return of his license from the Bureau. Since appellant was driving without his license in December 1983, it indicates that appellant was aware of his legal inability to drive at that time. This additional evidence tending to prove appellant’s actual notice of his license suspension, along with the evidence that a notice of suspension was mailed to appellant at his correct address, indicates that appellant received notice of his license suspension.

Gray, 356 Pa.Super. at 300-02, 514 A.2d at 622-23.

The facts of the instant case are similar to those of Gray. In the instant case, the trial court summarized the facts as follows:

In the instant case we have more than the mere evidence that the suspension notice was mailed to the Defendant. We also have the Defendant’s own admissions that he had received the October 10, 1985 letter which notified him that he had to take the special driver’s examination by November 9, 1985 in order to keep his driver’s license. This makes it very likely that he also received the letter mailed to his correct address on December 3, 1985.
We also have the Defendant’s admission that he knew that he did not complete the examination on November 9, 1985. It does not take much thought to rationalize that one must complete a driver's test before one can pass it. The Defendant must have realized that he had not fulfilled the requirements for the retention of his license.
The Defendant also admitted that he did not immediately obtain another examination authorization letter and did not take the examination until February of 1986. This also supports the inference that he knew that he had not yet fulfilled the requirements for keeping his license. Since the October 10, 1985 letter advised the Defendant that his license would be suspended for his failure to take the test, he must have known that his license had been suspended.
We find that this additional evidence tending to prove the Defendant’s actual knowledge of his license suspension, together with the evidence that a notice was mailed to his correct address, fully supports the finding that the Defendant did have notice of his suspension and knew that he was driving under a suspended license on January 28, 1986.

We find that there is sufficient evidence in the record to support the trial court’s conclusion that the Commonwealth had proved beyond a reasonable doubt that appellant had actual notice that his operating privilege was suspended. We conclude that the trial court did not abuse its discretion in making that finding. Accordingly, we affirm.

Judgment of sentence affirmed.

      . The record does not reveal why appellant was sent this letter.


text:
    529 A.2d 20
    Ellis SMITH v. John McDOUGALL, Appellant, v. Marcel L. GROEN, Esquire and Groen, Goldberg & Rubenstone.
    Superior Court of Pennsylvania.
    Argued April 30, 1987.
    Filed Aug. 3, 1987.

      Curtis P. Cheyney, III, Philadelphia, for Groen, appellees.
    Before OLSZEWSKI, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order sustaining Appellees preliminary objections and dismissing Appellant’s Complaint to Join.

Appellant is the defendant in an action brought by Ellis Smith which alleges that Appellant was negligent in his professional handling of a separate suit. Mr. Smith asserts that Appellant, who was acting as his trial counsel in the earlier matter, was responsible for the liability he suffered as a result of an adverse verdict. Thereafter, Appellant filed a Complaint to Join Appellees as additional defendants. The joinder complaint alleges that Mr. Smith received “active counsel” from Appellees during pendency of his earlier action and that Appellees provided Mr. Smith with negligent advice and representation which “was a proximate cause of any damages sustained by the plaintiff, thereby entitling defendant McDougall to indemnity or rendering additional defendant Marcel L. Groen, Esquire solely liable to the plaintiff”. Appellees subsequently filed Preliminary Objections in the nature of a demurrer to the Complaint to Join. In response, the court issued an order stamped “uncontested” and struck the Joinder Complaint. Prior to the filing of the instant timely appeal, a petition for reconsideration was also filed by Appellant offering an excuse and challenging the court’s conclusion that the matter was uncontested. The court denied the petition. In the Opinion submitted to this court in support of its order granting Appellant’s preliminary objections as uncontested and dismissing Appellant’s complaint, the trial court offered the following reasons for its action:

John McDougall, defendant in the instant action, filed a complaint against additional defendants, Marcel L. Groen, Esquire, et al., on April 24, 1986. On June 25, 1986, said additional defendants filed preliminary objections to that complaint. On August 7, 1986, no answer to the aforesaid preliminary objections having been filed by the defendant, we granted additional defendants’ preliminary objections as uncontested.

In Dillon by Dillon v. Nat. R.R. Corp. (Amtrak), 345 Pa.Super. 126, 497 A.2d 1336 (1985) this court considered a case where a motion for summary judgment was noted to be uncontested. The Dillon court remarked that “although the motion for summary judgment was treated and uncontested, summary judgment was not automatically entered in favor of appellees”. “The lower court properly reviewed the record before it to determine whether there was a genuine issue of material fact and whether appellees were entitled to judgment as a matter of law.” Id., 345 Pa.Superior Ct. at 134-135, 497 A.2d at 1340. The necessity of a trial court to consider the sufficiency of the cause of action alleged in a complaint before granting a party’s preliminary objections and ordering a dismissal was noted in Harley Davidson Motor Co. Inc. v. Hartman, 296 Pa.Super. 37, 442 A.2d 284 (1982). Therein, the court concluded that a close examination of the trial court’s opinion, as well as the complaint and preliminary objections disclosed “that the trial court did not consider the sufficiency of the complaint but based its order solely on the failure of Appellant’s counsel to file timely a responsive brief or memorandum of law”. The court remarked that “this failure of the trial court to consider the sufficiency of the complaint before sustaining Appellee’s preliminary objections and dismissing the complaint without leave to amend was an abuse of discretion.” Id., 296 Pa.Superior Ct. at 41, 442 A.2d at 286. The court then remanded the case to the trial court.

In the case before us there is no indication that the trial court considered the substance of the complaint. The court’s decision to dismiss the complaint based solely on its uncontested status without considering whether it sufficiently set forth a cause of action, amounted to an abuse of discretion. For this reason, we find it necessary to remand this case to the trial court for an examination and determination of the sufficiency of Appellant’s Joinder Complaint.

Order reversed. Case remanded for proceedings consistent with this memorandum. Jurisdiction is relinquished.

      . Because of our disposition, we do not consider Appellant’s argument that the local Philadelphia rule in this area conflicts with the Pennsylvania Rules of Civil Procedure.


author: HOFFMAN, Judge:

text:
    529 A.2d 22
    Novella J. DAVIS v. Vaughan BURTON and Brendan Burton, husband and wife, Appellants.
    Superior Court of Pennsylvania.
    Argued May 20, 1987.
    Filed Aug. 4, 1987.

      Kathleen Kennedy, Philadelphia, for appellants.
    Fred J. Ambrose, Jr., Philadelphia, for appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order denying appellant’s petition to open a default judgment. Appellants contend that the lower court erred in refusing to open the judgment because they offered a reasonable excuse for their failure to answer the complaint. We disagree and, accordingly, affirm the lower court’s order.

In January, 1985, appellee was injured when she slipped and fell on appellants’ property. Appellee filed a civil complaint, which was served on appellants on June 4, 1985. Appellants’ attorney entered an appearance on July 25, 1985. No answer to the complaint was filed. On January 3, 1986, appellee filed a Notice of Intent to Enter Default Judgment, see Pa.R.Civ.P. 237.1, informing appellants that a default judgment would be entered against them unless they responded to the complaint within ten days. Appellants still failed to answer the complaint, and a default judgment was entered. Appellants filed a petition to open the default judgment, which was denied, and this appeal followed.

Appellants contend that the lower court erred in denying their petition to open the judgment because they offered a reasonable excuse for their default. We disagree. A petition to open a default judgment is an appeal to the court’s equitable powers, and the decision will not be overturned on appeal absent an abuse of the trial court’s discretion. Autologic Inc. v. Cristinzio Movers, 333 Pa.Superior Ct. 173, 176, 481 A.2d 1362, 1363 (1984); Ridgid Fire Sprinkler Service, Inc. v. Chaiken, 333 Pa.Superior Ct. 213, 216, 482 A.2d 249, 251 (1984); Bildstein v. McGlinn, 320 Pa.Superior Ct. 416, 419, 467 A.2d 601, 602 (1983). In exercising its discretion to open a default judgment, a court must determine whether the petition to open was filed timely, whether the petitioner has a meritorious defense, and whether the petitioner is able to demonstrate a reasonable excuse for the default. Schultz v. Erie Ins. Exch., 505 Pa. 90, 93, 477 A.2d 471, 472 (1984); Hudgins v. Jewel T. Discount Store, 351 Pa.Superior Ct. 329, 333, 505 A.2d 1007, 1009 (1986); Estate of Levy v. CNA Ins. Co., 338 Pa.Superior Ct. 191, 198-99, 487 A.2d 919, 923 (1985); Continental Bank v. Rapp, 336 Pa.Superior Ct. 160, 170, 485 A.2d 480, 485 (1984).

Our courts have held that the power to open a default judgment entered as the result of a mistake or oversight by counsel may be exercised when a reasonable excuse has been offered. See Bildstein v. McGlinn, supra, 320 Pa.Superior Ct. at 423, 467 A.2d at 605; Ecumenical Enterprises, Inc. v. Nadco Constr., Inc., 253 Pa.Superior Ct. 386, 393, 385 A.2d 392, 394 (1978); Alexander v. Jesray Constr. Co., 237 Pa.Superior Ct. 99, 103, 346 A.2d 566, 568 (1975). In Shainline v. Alberti Builders, Inc., 266 Pa.Superior Ct. 129, 403 A.2d 577 (1979) this Court distinguished between mistakes by counsel that are excusable and those that are not. Relying on prior caselaw of this Commonwealth, we noted that an attorney’s dilatoriness, failure to act with knowledge of the implications, or deliberate decision not to defend are inadequate reasons for his or her failure to answer a complaint. Id., 266 Pa.Superior Ct. at 138, 403 A.2d at 581. We also stated that a clerical oversight or the misplacement of papers through no fault of the attorney that results in a failure to file timely an answer are reasonable excuses. Id., 266 Pa.Superior Ct. at 138-39, 403 A.2d at 581-82. See also Peoples Nat’l Bank v. Hitchcock, 278 Pa.Superior Ct. 375, 382, 420 A.2d 589, 592 (1980); Tronzo v. Equitable Gas Co., 269 Pa.Superior Ct. 392, 396-97, 410 A.2d 313, 315 (1979).

Here, the lower court held that appellants had satisfied two of the three requirements for opening a default judgment. The court held that the petition to open was timely and that a meritorious defense had been presented. The court also held, however, that appellants did not meet the third requirement because they had failed to advance a reasonable explanation for failing to file a timely answer to the complaint. The only reason that appellants set forth in their petition to open the default judgment for their failure to file an answer to the complaint was that their attorney believed that an entry of appearance was sufficient to prevent the entry of a default judgment. They assert that under prior law, upon which their attorney mistakenly relied, a default judgment would not be entered in trespass cases unless a defendant neither pleaded to the complaint nor entered an appearance in the action. See Pa.R.Civ.P. 1047(a) (rescinded effective July 1, 1984).

We agree with the court below that this excuse was not reasonable. Rule 1047 had been rescinded for nearly one year when the complaint was served upon appellants. In addition, the complaint contained the required notice on the front page that a written answer was required within twenty days. Moreover, appellants’ attorney admitted receiving a letter from appellee’s attorney dated July 29, 1985, which stated the following: Oral Deposition, April 7, 1986, exhibit D. From these factors, we conclude that appellants’ attorney was aware that an answer was required and of the implications of a failure to answer. This is not a case of mistake or oversight, but rather, an inexcusable failure to act by one who knew the implications of such a failure. See Shainline v. Alberti Builders, Inc., supra. Accordingly, we affirm the lower court’s order denying appellant’s petition to open the default judgment.

Also, if you will be representing [appellants], I trust that you will proceed to file your Answer to our Complaint as soon as possible, as per the applicable Rules of Civil Procedure. If you require an extension of time, please advise.

Order affirmed.

      . We do not rule on the correctness of these conclusions because of our disposition of this case.

      . We note another reason why appellants’ attorney’s mistaken reliance on a prior rule of civil procedure was not a reasonable excuse for failing to answer the complaint. Under former Rule 1045(a), “[a] party who fails to file a responsive pleading shall be deemed to admit all averments relating to ... the ownership, possession or control of the property or instrumentality involved.” Pa.R.Civ.P. 1045(a) (rescinded effective July 1, 1984). Here, the defense that counsel intended to raise for appellants was that the property on which appellee claimed to have been injured was not under appellants’ control. Memorandum of Law in Support of Petition to Open Default Judgment. Thus, an entry of appearance without an answer would not have protected appellants’ interests because control over the property would have been deemed admitted.