text:
    469 A.2d 294
    Commonwealth v. Ali, Appellant.
    Submitted September 9, 1983.
    Jimmie Moore, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Judgment of sentence affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    469 A.2d 294
    Commonwealth v. Banks, Appellant.
    Submitted October 14, 1983.
    John A. Halley, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.


text:
    469 A.2d 294
    Commonwealth v. Butler, Appellant.
    Petition for Allowance of Appeal Denied May 11, 1984.
    Argued June 15, 1983.
    John J. O’Brien, for appellant;
    F. Ned Hand, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and MONTEMURO, JJ.
   The judgment of sentence that was entered by the distinguished Judge Leonard Sugerman and that is the subject of Appeal No. 474 Philadelphia 1981, is affirmed.

The Appeal No. 1209 from the order of the Court of Common Pleas of Chester County is quashed.


text:
    469 A.2d 295.
    Commonwealth v. Daniels, Appellant.
    Submitted November 8, 1983.
    Donald P. Tarosky, for appellant;
    Judith Earns Ciszek, Assistant District Attorney, for Commonwealth, appellee.

      Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Affirmed.


text:
    469 A.2d 295
    Commonwealth v. Davis, Appellant.
    Submitted October 7, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 295
    Commonwealth v. Edwards, Appellant.
    Submitted September 9, 1983.
    Kenneth L. Mirsky, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Affirmed.


text:
    469 A.2d 296
    Commonwealth v. Elkind, Appellant.
    Petition for Allowance of Appeal Denied April 2, 1984.
    November 23, 1983.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, WATKINS and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 296
    Commonwealth v. Foster, Appellant.
    Submitted October 3, 1983.
    Kathleen L. Daerr-Bannon, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Order affirmed.


text:
    469 A.2d 296
    Commonwealth v. Gadson, Appellant.
    Submitted October 3, 1983.
    Edward V. Schulgen, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 296
    Commonwealth v. Halligan, Appellant.
    Argued October 3, 1983.
    John A. Prodoehl, Jr., for appellant;
    Donald Brown, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   Order affirmed.


text:
    469 A.2d 297
    Commonwealth v. Jones, Jr., Appellant.

      Submitted November 8, 1983.
    John P. Dohanich, for appellant;
    Edward J. Tocci, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 297
    Commonwealth v. Kemerer, Appellant.
    Argued November 29, 1983.
    Dennis Brian Rafferty, for appellant;
    Howard W. Bischoff, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 297
    Commonwealth v. Kibler, Appellant.
    Submitted October 26, 1983.
    John H. Corbett, Jr., Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.

      Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence reversed. New trial granted. See, Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982); Commonwealth v. Maxwell, 312 Pa.Super. 557, 459 A.2d 362 (1983).


text:
    469 A.2d 298
    Commonwealth v. Lewis, Appellant.
    Submitted October 21, 1983.
    Melvin B. Goldstein, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 298
    Commonwealth v. Martin, Appellant.
    Argued October 4, 1983.
    Randolph T. Borden, for appellant;
    Steven R. Guccini, Assistant District Attorney, for Commonwealth, appellee.

      Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   Order affirmed.


text:
    469 A.2d 298
    Commonwealth v. Mason, Appellant.
    Petition for Allowance of Appeal Denied Sept. 5, 1984.
    Submitted September 28, 1983.
    Paul R. Gettleman, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   The judgment of sentence of the learned Allegheny County Common Pleas Court Judge John W. O’Brien is affirmed.


text:
    469 A.2d 298
    Commonwealth v. Patrick, Appellant.
    Petition for Allowance of Appeal Denied May 25, 1984.
    Submitted December 6, 1982.
    Lewis S. Small, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    469 A.2d 299
    Commonwealth v. Prather, Appellant.
    Submitted October 7, 1983.
    Mario F. Driggs, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Appeal quashed.


text:
    469 A.2d 299
    Commonwealth v. Putnam, Jr., Appellant.
    Submitted September 30, 1983.
    Bruce Alan Barrett, Assistant Public Defender, for appellant;
    John M. Dawson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 299
    Commonwealth v. Ressler, Appellant.
    Submitted September 9, 1983.
    John J. Speicher, for appellant;
    George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Affirmed.

CAVANAUGH, J., concurred in the result.


text:
    469 A.2d 300
    Commonwealth v. Sawyer, Appellant.
    Petition for Allowance of Appeal Denied March 20, 1984.
    Submitted September 30, 1983.
    David G. Metinko, Assistant Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Judgment of sentence affirmed.

POPOVICH, J., concurred in the result.


text:
    469 A.2d 300
    Commonwealth v. Slaughter, Appellant.
    Petition for Allowance of Appeal Denied Feb. 23, 1984.
    Submitted October 13, 1983.
    Harris Roy Rosen, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 300
    Commonwealth v. Stroman, Appellant.
    Petition for Allowance of Appeal Denied May 11, 1984.
    Submitted September 30, 1983.
    David G. Metinko, Assistant Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Order affirmed.


text:
    469 A.2d 300
    Commonwealth v. Thompson, Appellant.
    Submitted September 9, 1983.
    Patrick J. Duffy, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 301
    Commonwealth v. Turner, Appellant.
    Petition for Allowance of Appeal Denied April 3, 1984.
    Submitted October 7, 1983.
    Brian R. Williams, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Appeal quashed.


text:
    469 A.2d 301
    Commonwealth v. Velez, Appellant.
    Submitted October 7, 1983.
    Joel Every, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Counsel’s petition for leave to withdraw is denied and counsel is directed to file an advocate’s brief.

Jurisdiction of this court and this panel is retained.


text:
    469 A.2d 301
    Endsley v. Endsley, Jr., Appellant.
    Argued September 29, 1983.
    Gary P. Caruso, for appellant;
    Ralph C. Warman, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   Order of the lower court is affirmed.


text:
    469 A.2d 302
    Estate of Montgomery. Appeal of H. Beatty Chadwick.

      Argued September 15, 1983.
    Daniel B. Pierson, V, for appellant;
    Lawrence Barth, Deputy Attorney General, for Commonwealth, participating party;
    Seymour C. Wagner, for Provident Nat’l Bank, participating party.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Order affirmed.


text:
    469 A.2d 302
    Gritzan v. Gritzan, Appellant.
    Petition for Allowance of Appeal Denied May 1, 1984.
    Argued October 25, 1983.
    John O’Donnell, for appellant;
    Patricia G. Miller, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY,. JJ.
   Order affirmed.


text:
    469 A.2d 302
    Lang, Appellant v. Delaware Valley Mental Health.
    Petition for Allowance of Appeal Denied March 29, 1984.

      Argued October 13, 1983.
    David Ferleger, for appellant; Joseph S. McNulty, Jr., for Delaware, appellee;
    Joseph M. Hankins, for Honig, et ah, appellees.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   Order affirmed.


text:
    471 A.2d 111
    Mainardi, et al. v. Montalto, et al. Appeal of Francis Montalto.
    Reargument Denied Feb. 22, 1984.
    Argued March 1, 1983.
    Charles A. Harad, for appellant;
    Roger J. Harrington, for Mainardi, et ah, appellees;
    Jill Douthett, Assistant City Solicitor, for Philadelphia, appellee.
    Before CERCONE, P.J., and CAVANAUGH and WIE-AND, JJ.
   A new trial limited to the issue of damages only is awarded as to William Montalto v. Francis Montalto in all other respects the judgment below is affirmed.

WIEAND, J., filed a memorandum concurring and dissenting statement.


text:
    469 A.2d 302
    Mayercheck, Appellant v. Mayercheck.
    Argued September 29, 1983.
    Joseph A. Mayercheck, appellant, in propria persona;
    Gordon David Fisher, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   Order of lower court is affirmed.


text:
    469 A.2d 303
    Risko v. Socci, Appellants.
    Petition for Allowance of Appeal Denied April 18, 1984.
    Argued April 20, 1983.
    John P. Koopman, for appellants;
    Stephen B. Harris, for appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Judgments of the lower court are affirmed.


text:
    469 A.2d 303
    Sheppard v. Sheppard, Appellant.

      Submitted September 30, 1983.
    William John Martin, for appellant;
    James K. Nicely, for appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Appeal dismissed.


text:
    469 A.2d 303
    Sonsini v. McDuffie, Appellants.
    Submitted June 22, 1983.
    Geoffry F. Walsh, for appellants;
    Pierre B. Pie, II, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Appeal quashed.


text:
    469 A.2d 1141
    Wilkins v. Penn Park Dev. Corp. Appeal of A.A. Constantino, M.D.
    Petition for Allowance of Appeal Denied May 2, 1984.
    Argued September 28, 1983.
    David H. Trushel and Louis C. Long, for appellant;
    Larry P. Gaitens, for Wilkins, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   The order of the learned Allegheny County Common . Pleas Court Judge Bernard J. McGowan is affirmed.


text:
    December 30, 1983.
    469 A.2d 303
    Commonwealth v. Anderson, Appellant.
    Submitted September 30, 1983.
    Sally A. Frick, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 304
    Commonwealth v. Atkinson, Appellant.
    Submitted October 14, 1983.
    John A. Clay, for appellant;
    Edward J. Tocci, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The judgment of sentence of the learned Beaver County Court of Common Pleas Court Judge Joseph S. Walko is affirmed.


text:
    469 A.2d 304
    Commonwealth v. Barbour, Appellant.
    Submitted October 21, 1983.
    Stephen P. Dicht, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, President Judge, WIEAND and MONTEMURO, JJ.
   Order affirmed.


text:
    469 A.2d 304
    Commonwealth v. Bolden, Appellant.
    Submitted September 30, 1983.
    John A. Halley, for appellant;
    Melinda G. Tell, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Order reversed and case remanded for further proceedings not inconsistent with this opinion.

POPOVICH, J., concurred in the result.


text:
    469 A.2d 305
    Commonwealth v. Brooks, Jr., Appellant.
    Submitted October 14, 1983.
    John Allen Roth, for appellant;
    Margaret E. Picking, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The order of the learned Westmoreland County Court of Common Pleas Judge Joseph A. Hudock is affirmed.


text:
    469 A.2d 305
    Commonwealth v. Collins, Appellant.
    Petition for Allowance of Appeal Denied March 22, 1984.
    Submitted October 21, 1983.
    Brian R. Williams, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, WIEAND and MONTEMURO, JJ.
   Order affirmed.

SPAETH, President Judge, concurred in the result.


text:
    469 A.2d 305
    Commonwealth v. Doney, Appellant.
    Submitted October 21, 1983.
    Robert W. Suter, for appellant;
    William F. Mabon, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Order affirmed.


text:
    469 A.2d 305
    Commonwealth v. Doswell, Appellant.
    Submitted September 30, 1983.
    John Wessley Dos-well, appellant, in propria persona;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Order reversed and case remanded for further proceedings.


text:
    469 A.2d 306
    Commonwealth v. Finks, Jr., Appellant.
    Submitted October 21, 1983.
    David H. Kubert, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Order affirmed.


text:
    469 A.2d 306
    Commonwealth v. Harper, Appellant.
    Petition for Allowance of Appeal Denied May 24, 1984.
    Submitted July 28, 1983.
    Howard S. Kaplan, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Lower court opinion adopted.

Judgment of sentence affirmed.


text:
    469 A.2d 306
    Commonwealth v. Harvey, Appellant.
    Submitted September 30, 1983.
    Anthony Joseph Vardaro, Assistant Public Defender, for appellant;
    Donald E. Lewis, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 307
    Commonwealth v. Hickman, Appellant.
    Petition for Allowance of Appeal Denied June 25, 1984.
    Submitted September 30, 1983.
    John H. Corbett, Jr., Public Defender, for appellant;
    Kenial A. Mericli, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 307
    Commonwealth v. Hoffman, Appellant.
    Argued November 2, 1983.
    Norman M. Yoffe, for appellant;
    Katherene Holtzinger, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   The judgment of sentence is vacated, and the case is remanded for resentencing in compliance with the mandates of Pa.R.Crim.P. 1405(b) and Commonwealth v. Wood, 300 Pa.Super. 463, 446 A.2d 948 (1982). Jurisdiction is not retained.


text:
    469 A.2d 307
    Commonwealth v. Johnson, Sr., Appellant.
    Submitted September 9, 1983.
    John J. Brier, Assistant Public Defender, for appellant;
    James J. Walker, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Remanded for the lower court to place on the record its reasons for the sentence imposed. Jurisdiction is not retained.

CAVANAUGH, J., filed a memorandum concurring and dissenting statement.


text:
    469 A.2d 307
    Commonwealth v. Langtry, Appellant.
    Argued November 17, 1983.
    J. Robert Zane, for appellant;
    Richard B. Russell, District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   The judgment of sentence is affirmed.


text:
    469 A. 2d 308
    Commonwealth v. Lewis, Appellant.
    Submitted December 1, 1983.
    William John Moder, III, for appellant;
    Charles S. Hersh, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 308
    Commonwealth v. Miles, Appellant.
    Submitted September 30, 1983.
    John Woodcock, Jr., Public Defender, for appellant;
    Jolene M. Grubb, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   The judgment of sentence imposed on the indecent assault conviction is vacated. The judgments of sentence imposed on the convictions for rape and terroristic threats are affirmed.


text:
    469 A.2d 308
    Commonwealth v. Miles, Appellant.
    Submitted October 21, 1983.
    Barnaby Wittels, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Counsel for the appellant is directed to either proceed with the appeal by filing an advocate’s brief on the merits, or if he concludes that an appeal would be wholly frivolous he should file a petition to withdraw, and a proper Anders brief. In either event the brief is to be filed within thirty (30) days of the filing of this opinion.

Decision on the merits not rendered. Jurisdiction is retained.


text:
    469 A.2d 309
    Commonwealth v. Pugh, Appellant.
    Submitted October 14, 1983.
    John H. Moore, for appellant;
    Michael J. Veshecco, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The order of the learned Erie County President Judge James B. Dwyer is affirmed.

CAVANAUGH, J., concurred in the result.


text:
    469 A.2d 309
    Commonwealth v. Ross, Appellant.
    Petition for Allowance of Appeal Denied May 24, 1984.
    Submitted November 30, 1983.
    David M. Axinn, Assistant Public Defender, for appellant;
    William G. Martin, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ. .
   Judgment of sentence affirmed.


text:
    469 A.2d 309
    Commonwealth v. Salvatore, Appellant.
    Petition for Allowance of Appeal Denied March 29, 1984.
    Submitted October 14, 1983.
    John H. Corbett, Jr., Public Defender, for appellant;

      Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The judgment of sentence of the learned Allegheny County Common Pleas Court Judge Gerard M. Bigley is affirmed.


text:
    469 A.2d 310
    Commonwealth v. Sincavish, Appellant.
    Submitted September 9, 1983.
    David P. Posatko, Public Defender, for appellant;
    Brendan J. Vanston, District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Affirmed.


text:
    469 A.2d 310
    Commonwealth v. Steelman, Appellant.
    Petition for Allowance of Appeal Denied April 17, 1984.
    Submitted July 27, 1983.

      Robert F. Pappano, Assistant Public Defender, for appellant;
    Helen T. Kane, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 310
    Commonwealth v. Swartz, Appellant.
    Submitted March 24, 1983.
    Steven Y. Manbeck, for appellant;
    Michael Johnston, District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CIRILLO and HOFFMAN, JJ.
   Order affirmed. Jurisdiction not retained.


text:
    469 A.2d 310
    Commonwealth v. Thomas, Appellant.
    Submitted September 23, 1983.
    Marilyn C. Zilli, Assistant Public Defender, for appellant;
    William A. Behe, Deputy District Attorney, for Commonwealth, appellee.

      Before WIEAND, CIRILLO and JOHNSON, JJ.
   The order of July 30, 1982 is affirmed.


text:
    469 A.2d 311
    Commonwealth v. Tomlinson, Appellant.
    Submitted January 27, 1983.
    Lawrence A. Kalikow, Assistant Public Defender, for appellant;
    William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 311
    Commonwealth v. Trypus, Appellant.
    Petition for Allowance of Appeal Denied June 22, 1984.
    Submitted September 30, 1983.
    Stanley Wolowski, for appellant;
    Donald E. Lewis, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Order affirmed.


text:
    469 A.2d 311
    Commonwealth v. Tyler, Appellant.
    Petition for Allowance of Appeal Denied April 24, 1984.
    Submitted November 16, 1983.
    Douglas M. Johnson, Assistant Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Judgment of sentence and order affirmed.


text:
    469 A.2d 312
    Commonwealth v. Whitmyer, Appellant.
    Submitted November 17, 1983.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Affirmed.


text:
    469 A.2d 312
    Commonwealth v. Williams, Appellant.
    Submitted September 23, 1983.
    Sanford Alan Krevsky, for appellant;
    William T. Tully, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   Affirmed.

WIEAND, J., filed a memorandum dissenting opinion.


text:
    469 A.2d 312
    Commonwealth v. Winkey, Appellant.
    Argued June 15, 1983.
    John L. Lachall, for appellant;
    Stuart Suss, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    469 A.2d 312
    Estate of Montgomery. Appeal of H. Beatty Chadwick.
    Argued September 15, 1983.
    Daniel B. Pierson, V, for appellant;
    Lawrence Barth, for Commonwealth, participating party;
    Seymour C. Wagner, for White, etc., participating parties.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Order affirmed.


text:
    469 A.2d 313
    Friedgen v. Manor, Appellant.
    Argued June 17, 1983.
    Thomas M. Guinan, for appellant;
    George F. Dale, for appellee.
    Before ROWLEY, McEWEN and WATKINS, JJ.
   Judgment affirmed.


text:
    469 A.2d 313
    Fuller-Craig v. Keystone Ins. Co., Appellant.

      Argued November 23, 1983.
    Pamela Gagne, for appellant;
    Jo Anna Hamill Flum, for appellee.
    Before MONTEMURO, WATKINS and HOFFMAN, JJ.
   Affirmed and remanded for a determination of reasonable appellee’s attorney’s fees arising from this appeal. Jurisdiction is not retained.

WATKINS, J., filed a memorandum dissenting statement.


text:
    469 A.2d 313
    Gundrum, etc. v. Knitter v. Parson, Appellant.
    Submitted September 9, 1983.
    Dwight L. Danser, for appellant;
    Mark S. Refowich, for Gundrum, appellee;
    Thomas L. Walters, for Knitter, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Affirmed.


text:
    469 A.2d 314
    Herstein, Appellant v. Fredericks.

      Argued September 21, 1983.
    Ronald Jay Smolow, for appellant;
    James M. Marsh, for appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Judgment of the lower court affirmed.


text:
    469 A.2d 314
    Keslar v. Bashman. Appeal of William Douglas Bashman.
    Submitted September 30, 1983.
    Donald Richard Shroyer, for appellant;
    Thomas Walter Smith, for Keslar, appellee;
    Marjorie A. Bashman, appellee, in propria persona.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   Order affirmed.

ROWLEY, J., concurred in the result.


text:
    469 A.2d 314
    Mann v. Lee Tire & Rubber Co., Appellant.
    Argued September 6, 1983.
    Jay Lambert, for appellant;
    Richard A. Stanko, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   The appeal at No. 2589 Philadelphia, 1981 is quashed. In the appeal at No. 269 Philadelphia, 1982, the order of the trial court is affirmed.


text:
    471 A.2d 561
    State Farm Ins. Co. v. Epstein, Appellant.
    Reargument Denied March 2, 1984.
    Petition for Allowance of Appeal Denied Aug. 3, 1984.
    Argued September 13, 1983.
    James L. Womer, for appellant;
    John J. Barr, for appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Judgment affirmed.


text:
    January 6, 1984.
    470 A.2d 1014
    Commonwealth v. Bellis, Appellant.

      Argued September 7, 1983.
    Denis W. Lanctot, for appellant;
    Stephen B. Harris, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   Judgments of sentence reversed. Case remanded for rehearing. Jurisdiction relinquished.


text:
    470 A.2d 1014
    Commonwealth v. Ferko, Jr., Appellant.
    Submitted September 9, 1983.
    Joseph G. Ferko, Jr., appellant, in propria persona;
    Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Judgment of sentence and order affirmed.

SPAETH, President Judge, concurred in the result.


text:
    470 A.2d 1014
    Commonwealth v. Gay, Appellant.
    Submitted October 3, 1983.
    Methuselah Z.O. Bradley, IV, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   The appeal from the judgment of sentence is quashed.


text:
    470 A.2d 1015
    Commonwealth v. Kaihani, Appellant.
    Submitted October 3, 1983.
    Douglas M. Johnson, Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   The order of the trial court is affirmed.


text:
    470 A.2d 1015
    Commonwealth v. McCusker, Appellant.
    Submitted October 3, 1983.
    Nino V. Tinari, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   The judgment of sentence of the trial court is affirmed.


text:
    470 A.2d 1015
    Commonwealth v. McDermott, Appellant.
    Submitted September 22, 1983.
    Gilbert E. Toll, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Vacated and remanded. Jurisdiction is relinquished.

CIRILLO, J., filed a memorandum dissenting opinion.


text:
    470 A.2d 1016
    Commonwealth v. Santafemia, Appellant.
    Argued November 29, 1983.
    Philip B. Friedman, for appellant;
    Timothy John Lucas, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   Judgment of sentence is modified to direct that an additional hearing be held following appellant’s release on parole and, as modified, judgment of sentence is affirmed.

WIEAND, J., filed a memorandum concurring and dissenting statement.


text:
    470 A.2d 1016
    Commonwealth ex rel. Lopez v. Lopez, Appellant.
    Argued September 7, 1983.
    William R. Hagner, for appellant;
    David Conway Becker, for appellees.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   Order affirmed.


text:
    470 A.2d 1016
    Fiordimondo v. Fiordimondo, Appellant.
    Submitted June 2, 1983.
    Joseph L. DiTomo, Jr., for appellant;
    Nicholas J. Maiale, for appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   Decree affirmed.


text:
    470 A.2d 1016
    Flora, Appellant, v. Motor Coils Mfg.
    Argued October 25, 1983.
    John O’Donnell, for appellant;
    Seymour A. Sikov, for Motor, appellee;
    Michael Louis Magulick, for Process, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Judgment on pleadings of Motor Coil Manufacturing Company, Inc. affirmed and case remanded for further proceedings.


text:
    471 A.2d 562
    Regli, Appellant, v. Regli.
    Reargument Denied March 6, 1984.
    Petition for Allowance of Appeal Denied June 22, 1984.

      Argued July 12, 1983.
    Cheryl Anne Furey, for appellant;
    Paul William Callahan, for appellee.
    Before CERCONE, President Judge, and ROWLEY and WIEAND, JJ.
   Order affirmed.


text:
    470 A.2d 1017
    Reibstein, Appellant, v. Reibstein.
    Argued September 6, 1983.
    Emanuel A. Bertin, for appellant;
    Elizabeth L. Bennett, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   Order affirmed.


text:
    470 A.2d 1017
    Sockol, Appellant, v. Prudential Ins. Co.
    Petition for Allowance of Appeal Denied May 11, 1984.
    Argued October 4, 1983.
    Ronald N. Rutenberg, for appellant;
    Henry H. Janssen, for appellee.

      Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   Judgment affirmed.


text:
    470 A.2d 1017
    Viney v. McCormick, Appellant.
    Argued September 7, 1983.
    Leonard Zack, for appellant;
    A. Balfour Smith, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   Order affirmed.


text:
    470 A.2d 1017
    Wiley v. Septa. Appeal of Southeastern Pennsylvania Transportation Authority.
    Argued November 21, 1983.
    Norman Hegge, Jr., for appellant;
    Samuel Mychak, Jr., for Wiley, appellee;
    Keith Wyatt, Assistant City Solicitor, for City of Philadelphia, appellee;
    Thomas P. Fay, for Commonwealth, appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   The order of the Court below granting the petition to strike is reversed, and the judgment is reinstated.


author: PER CURIAM:

text:
    469 A.2d 1130
    COMMONWEALTH of Pennsylvania v. Francis T. COLLERAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 28, 1983.
    Filed Dec. 23, 1983.

      Joseph F. Sklarosky, Assistant Public Defender, Wilkes-Barre, for appellant.
    Robert J. Gillespie, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   PER CURIAM:

The appellant was convicted of criminal conspiracy following a jury trial on June 3, 1981. He posted bail in the amount of five thousand ($5,000.00) dollars pursuant to the trial court’s order. Post-verdict motions were also filed.

On January 1, 1982, prior to the resolution of appellant’s post-verdict motions and prior to sentencing, the appellant was arrested and charged in connection with a burglary. On February 4, 1982, the Commonwealth filed a petition to revoke bail on the criminal conspiracy conviction. On February 9, 1982, after a full hearing, the trial court revoked appellant’s bail pursuant to Pa.R.Crim.P. 4010A. (2)(ii). The trial judge stated his reasons for revoking bail on the record as required by the rule. On February 25, 1982, the appellant filed an appeal from the order revoking bail.

An appeal from an order revoking bail is an interlocutory order, which is non-appealable, Pa.Rules of Appellate Procedure 311, 312 and 341. The proper method to challenge an order of a trial court refusing or revoking bail is by means of a petition for review pursuant to Chapter 15 of the Rules of Appellate Procedure. See Pa.R.A.P. 1762. Inasmuch as the improper procedure was utilized herein, this appeal is quashed.

Appeal quashed.


author: WICKERSHAM, Judge:

text:
    469 A.2d 1131
    Joseph KINTZ, Administrator of the Estate of Miriam G. Kintz, Deceased v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant. Joseph KINTZ, Administrator of the Estate of Miriam G. Kintz, Deceased, Appellant v. NATIONWIDE MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1983.
    Filed Dec. 30, 1983.
    Petition for Allowance of Appeal Granted April 18, 1984.

      Roger T. Shoop, Harrisburg, for appellant.
    Robert D. Myers, Harrisburg, for appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   WICKERSHAM, Judge:

On February 12, 1980, appellee’s decedent, Miriam G. Kintz, was killed in an automobile accident. She was covered by a Pennsylvania No-Fault Automobile Insurance policy issued by appellant Nationwide Mutual Insurance Company. At the time of her death, appellee’s decedent was 41 years old and was employed on a part-time basis by Rakestraw’s Dairy, Mechanicsburg, Pennsylvania, working one day per week (a total of six hours), at a pay rate of $3.40 per hour. (Record at 36a-38a).

The complaint alleges that on October 24, 1980, appellee Kintz, as surviving spouse and administrator of Mrs. Kintz’s estate, demanded that Nationwide pay the total work loss benefits payable under the policy, $15,000. The complaint further avers that Nationwide offered to pay the $15,000 in work loss benefits at the rate of $77.21 per month over a period of sixteen years, three months. Appellee rejected this offer, demanding that the entire $15,000 be paid in one lump sum, or alternatively, at the rate of $1,000 per month. Nationwide rejected this demand; on January 8, 1981, Nationwide tendered a check to appellee in the amount of $849.31, representing eleven months of benefits at the rate of $77.21 per month. Appellee informed Nationwide that he was accepting the check as part payment of his claim but without prejudice to his right to pursue a demand for lump sum payment. Since January of 1981 Nationwide has paid, and we assume, continues to pay $77.21 per month to appellee.

Appellee instituted the instant action on February 4, 1981. On February 27, 1981, Nationwide filed preliminary objections to the complaint. On April 29, 1981, the lower court overruled and denied Nationwide’s preliminary objections. Pleadings were completed and depositions were taken. Both parties filed motions for summary judgment. On August 17, 1981, following submission of briefs by both parties, oral argument was held on the cross motions for summary judgment. The Honorable Clarence C. Morrison filed an opinion and order granting appellee’s motion for summary judgment and denying Nationwide’s cross motion for summary judgment on November 9, 1981. The lower court did not, however, grant appellee Kintz’s request for interest and counsel fees.

Appellant Nationwide appealed from the order requiring it to pay work loss benefits in a lump sum. Appellee Kintz filed a cross appeal on the issue of the lower court’s denial of interest and counsel fees. These two appeals were consolidated for briefing and argument purposes.

At the outset, we note that we are asked to examine the lower court’s grant of one motion for summary judgment and the denial of another such motion. Pa.R.C.P. No. 1035(b) provides that summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In this case, it seems clear to us that there is no genuine issue as to any material fact. The insurance company does not deny that work loss benefits are owed to appellee. Only the method of payment is at issue. Thus, we believe that summary judgment is the appropriate disposition of this case.

In these consolidated appeals, appellant Nationwide states the first issue presented for our consideration as follows:

Is a survivor of a deceased victim entitled to receive a lump sum payment of maximum work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act.

Brief for Appellant at 3.

This issue was recently resolved by an en banc panel of this court. In Antanovich v. Allstate Insurance Company, 320 Pa.Super. 322, 467 A.2d 345 (1983), the insurance company argued, as Nationwide argues in this appeal, that work loss is “sustained” only when the victim would have received the income, had the victim lived. Thus, the insurance company argued that work loss benefits should be paid monthly and not in a lump sum. The Antanovich opinion states:

We can think of only one reason for the requirement that work loss benefits are to be paid monthly, namely, that it is not known when, or whether, the victim will be able to return to work. But when an accident results in death, this reasoning is inapplicable. It is known that the victim will not return to work. The amount of work loss benefits is therefore certain, and there is no need to extend the payments up to a period of fifteen months. See 40 P.S. § 1009.202(b). We therefore hold that postmortem work loss benefits are to be paid in a lump sum.

Antanovich, supra, 320 Pa.Superior Ct. at 341, 467 A.2d at 355 (emphasis in original).

In accordance with Antanovich, we hold that Nationwide cannot extend monthly payments over a sixteen year period. Rather, the total work loss benefits still owed to appellee must be paid in a lump sum.

In the second issue of this consolidated appeal, appellee Kintz questions the lower court’s decision to deny his request for interest and counsel fees. First, we will address the issue of counsel fees. Section 107(3) of the No-Fault Act provides:

If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that theobligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.

40 Pa.S.A. § 1009.107(3).

This provision permits an award of attorney fees only if the insurer denied the claim “without reasonable foundation.” In its opinion, the lower court found that the appellee’s demand for lump sum payment was disputed and that Nationwide’s refusal to make the lump sum payment was reasonable. Lower ct. op. at 4-5. We agree.

First, we note that the question of the proper method of payment has only recently been decided; Nationwide’s position was not in opposition to established case law. Furthermore, Nationwide’s interpretation of the proper method of payment was neither illogical nor unreasonable. We also recognize that Nationwide never denied appellee’s claim. Nationwide made, and we assume, continues to make monthly payments of $77.21 per month in accordance with what it believed to be the proper method of payment. Thus, we find that Nationwide’s refusal to make a lump sum payment was not “without reasonable foundation.” We affirm the lower court’s denial of counsel fees.

Appellee also questions the lower court’s denial of his request for interest. The No-Fault Act provides that No-Fault benefits are overdue if not paid within thirty days of receipt by the insurance company of reasonable proof of the fact and amount of loss. The Act provides further that overdue payments bear interest at the rate of eighteen percent (18%) per annum. 40 Pa.S.A. § 1009.106(a)(2).

In Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981), the Pennsylvania Supreme Court distinguished the language of section 106 of the No-Fault Act (concerning interest on overdue payments of benefits) from the language of section 107 of the Act (concerning allow•ance of attorney fees). The court noted that while section 107 permits an award of counsel fees only when the delay in payment was “without reasonable foundation”, section 106 contains no such limiting language as to an award of interest on overdue payments. The court found that this difference in language indicates that the legislature did not intend to create a good faith exception to a claim for 18% interest on overdue payments. Thus, in Hayes, supra, our supreme court ruled that the 18% interest rate is owed regardless of the good faith of the insurer or the reasonableness of the delay. Hayes, supra, 493 Pa. at 155, 425 A.2d at 421. See also, Hall v. Midland Insurance Company, 320 Pa.Super. 281, 467 A.2d 324 (1983) and cases cited therein.

Although we believe that Nationwide’s delay in making a lump sum payment of work loss benefits to appellee was reasonable and that Nationwide acted in good faith, we feel constrained by the Pennsylvania Supreme Court’s ruling in Hayes, supra, to find that interest at the rate of 18% is due to appellee.

Under the No-Fault Act, payments become overdue if not paid within thirty days of notice to the insurance company. Baker v. Aetna Casualty & Surety Company, 309 Pa.Super. 81, 96, 454 A.2d 1092, 1100 (1982). In the instant case, the complaint averred and Nationwide’s answer admitted that appellee demanded payment of work loss benefits on October 24,1980. Thus, payment became overdue when not paid on November 23, 1980. Therefore, 18% interest is due from that date.

We affirm the lower court’s ruling that the work loss benefits must be paid in one lump sum. We also affirm the lower court’s denial of counsel fees. However, we reverse the lower court’s denial of interest on the overdue payment. Therefore, we remand so that the trial court may assess interest in accordance with this opinion and 40 Pa.S.A. § 1009.106(a)(2).

Judgment affirmed in part and reversed in part. Jurisdiction is relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 107(3).

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 106(a)(2).


author: WIEAND, Judge:

text:
    469 A.2d 1134
    COMMONWEALTH of Pennsylvania v. Rodney BAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1983.
    Filed Dec. 30, 1983.
    Petition for Allowance of Appeal Denied May 8, 1984.

      John M. Glace, Assistant Public Defender, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

Rodney Baylor was tried by jury and convicted of murder of the third degree in connection with the shooting death of Arthur Green on June 13, 1981. On direct appeal following the denial of post verdict motions and the imposition of sentence, Baylor contends (1) that the evidence was insufficient to support his conviction; and (2) that his constitutionally protected right not to be placed twice in jeopardy for the same offense was violated when the trial court allowed the trial to continue after a juror, who had been selected and sworn following voir dire examination, was discharged for cause and replaced because she had changed her mind overnight and declared that she would be unable to consider the death penalty. There is no merit in these contentions; and, therefore, we affirm the judgment of sentence.

In reviewing the sufficiency of the evidence, we view the evidence, and all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth. The test is' whether'the evidence thus viewed is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Keblitis, 500 Pa. 321, 322, 456 A.2d 149, 150 (1983); Commonwealth v. Hartzell, 320 Pa.Super. 249, 257, 467 A.2d 22, 26 (1983); Commonwealth v. Ruffin, 317 Pa.Super. 126, 129, 463 A.2d 1117, 1118-1119 (1983). Thus viewed, the evidence discloses that Baylor and Kevin Smith went to Arthur Green’s house in the Allison Hill section of Harrisburg at or about 9:00 p.m. on June 13, 1981 for the purpose of buying cocaine. Smith departed empty-handed after a brief stay because he and Baylor did not have enough money to purchase the drugs. Baylor remained and thereafter pulled out a .22 caliber handgun and demanded money from Green. In the presence of Green’s fiancee, Carolyn Wallace, Baylor shot Green through the left lung and heart as Green reached for the money in his shirt pocket. Green died later that evening at the Harrisburg Hospital. Baylor, who had fled the scene immediately after the shooting, was arrested the following day at his parents’ home. A search of Baylor’s dresser in his bedroom produced six .22 caliber bullets.

This evidence was sufficient to warrant a finding of murder in the third degree. The gravamen of third degree murder is a killing committed with malice. See: Commonwealth v. Young, 494 Pa. 224, 227, 431 A.2d 230, 232 (1981); Commonwealth v. Pitts, 486 Pa. 212, 219, 404 A.2d 1305, 1308 (1979); Commonwealth v. Carter, 481 Pa. 495, 498-499, 393 A.2d 13, 15 (1978); Commonwealth v. Wanamaker, 298 Pa.Super. 283, 287, 444 A.2d 1176, 1178 (1982) . Malice may be proven by circumstantial evidence, including the accused’s utilization of a deadly weapon to inflict a wound to a vital organ. Commonwealth v. D’Ambro, 500 Pa. 303, 308 n. 5, 456 A.2d 140, 143 n. 5 (1983) ; Commonwealth v. Martinez, 499 Pa. 417, 423, 453 A.2d 940, 944 (1982); Commonwealth v. Roberts, 496 Pa. 428, 435, 437 A.2d 948, 951-952 (1981); Commonwealth v. Horton, 485 Pa. 115, 118, 401 A.2d 320, 322 (1979); Commonwealth v. Cartagena, 272 Pa.Super. 485, 490, 416 A.2d 560, 563 (1979); Commonwealth v. Kennerly, 269 Pa.Super. 404, 407, 410 A.2d 319, 321 (1979). The fact that Baylor was a drug addict and may have been ill because of withdrawal did not preclude a finding of malice. See: Commonwealth v. Coleman, 482 Pa. 581, 585-586, 394 A.2d 474, 476-477 (1978) (plurality opinion). Cf. Commonwealth v. Milburn, 488 Pa. 601, 603, 413 A.2d 388, 388 (1980); Commonwealth v. Hicks, 483 Pa. 305, 312, 396 A.2d 1183, 1186 (1979); Commonwealth v. Ruff, 266 Pa.Super. 497, 498-499, 405 A.2d 929, 929-930 (1979); 18 Pa.C.S. § 308. See generally: Commonwealth v. Fairell, 476 Pa. 128, 133-134, 381 A.2d 1258, 1260-1261 (1977) (issue of defendant’s “intoxication” on narcotics in first degree murder prosecution, as it relates to ability to form specific intent to kill, is for resolution by the jury). Accord: Commonwealth v. Padgett, 465 Pa. 1, 348 A.2d 87 (1975); Commonwealth v. Fostar, 455 Pa. 216, 317 A.2d 188 (1974).

Moreover, inconsistencies in the testimony of Carolyn Wallace, the victim’s fiancee, were for resolution by the jury and did not render the evidence insufficient to convict. See: Commonwealth v. Galloway, 495 Pa. 535, 539, 434 A.2d 1220, 1222 (1981); Commonwealth v. Hartzell, supra 320 Pa.Super. at 257, 467 A.2d at 26; Commonwealth v. Curry, 318 Pa.Super. 490, 495, 465 A.2d 660, 662 (1983); Commonwealth v. Boettcher, 313 Pa.Super. 194, 200, 459 A.2d 806, 808 (1983). The jury was free to believe all,' some or none of her testimony. It was also free to believe all, some or none of Baylor’s tendered explanation that the gun had discharged accidentally. See: Commonwealth v. Shaver, 501 Pa. 167, 173, 460 A.2d 742, 745 (1983); Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Ruffin, 317 Pa.Super. 126, 134, 463 A.2d 1117, 1120 (1983); Commonwealth v. Newman, 310 Pa.Super. 493, 496, 456 A.2d 1044, 1045 (1983).

Voir dire examination of potential jurors for Baylor’s trial commenced on October 19, 1981. Consistent with Pa.R. Crim.P. 1106(b) and (e), each venireman was examined individually, selected and immediately sworn. The sixth juror selected and sworn that day, Cynthia G. Hyler, stated in response to examination by the assistant district attorney that in an appropriate case, she would be able to return a verdict favoring the death penalty. Upon further reflection that evening, however, Mrs. Hyler decided that she could not consider the death penalty under any circumstances. A record colloquy on the following day disclosed that Mrs. Hyler had become unable to follow the law and consider the death penalty even if, under the law, a jury were to be required to consider imposing such a sentence. Over Baylor’s objection, the juror was excused for cause. On appeal, Baylor contends that jeopardy had attached when Mrs. Hyler was sworn as the sixth juror and that replacing her with another juror put him twice in jeopardy. We disagree.

“The prohibition of double jeopardy, as it relates to subsequent prosecutions, is irrelevant until jeopardy has once attached.” Commonwealth v. Arelt, 308 Pa.Super. 236, 241, 454 A.2d 108, 111 (1982), citing Commonwealth v. Potosnak, 289 Pa.Super. 115, 123, 432 A.2d 1078, 1082 (1981). In jury proceedings, jeopardy attaches when a panel of jurors is selected and sworn. Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24, 27 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642, 650 (1977); Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265, 274 (1975); Klobuchir v. Commonwealth of Pennsylvania, 639 F.2d 966, 970 (3rd Cir.1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 566, 70 L.Ed.2d 474 (1981); Commonwealth v. Klobuchir, 486 Pa. 241, 249, 405 A.2d 881, 885 (1979) (Opinion in support of affirmance by Nix, J., with two Justices concurring), cert. denied, 445 U.S. 952, 100 S.Ct. 1602, 63 L.Ed.2d 787 (1980); Commonwealth v. Carson, 259 Pa.Super. 183, 191-192, 393 A.2d 778, 781 (1978); Commonwealth v. Smith, 232 Pa.Super. 546, 548, 334 A.2d 741, 742 (1975). Jeopardy is deemed to attach when a jury is sworn in order to protect the accused’s right to have his trial by a particular tribunal once that tribunal has been chosen. Crist v. Bretz, supra 437 U.S. at 35-36, 98 S.Ct. at 2161, 57 L.Ed.2d at 31-32, quoting Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed.2d 974 (1949). See: Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717, 727 (1978); United States v. Sanders, 591 F.2d 1293, 1296 (9th Cir.1979); Mizell v. Attorney General of the State of New York, 586 F.2d 942, 945 (2nd Cir.1978), cert. denied, 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783 (1979); United States v. Bobo, 586 F.2d 355, 362 (5th Cir.1978), cert. denied, sub nom. Rowan v. United States, 440 U.S. 976, 99 S.Ct. 1546, 59 L.Ed.2d 795 (1979).

In the instant case, jeopardy had not attached when the juror was excused. The reason has been stated as follows:

The trial begins when the jury is charged with the defendant, and that is at the moment a full jury is impanneled [sic] and sworn; he is not in jeopardy before. Up to that point the Court may postpone the trial as lawfully at one stage of the proceedings as another. A man is not in peril from the verdict of a jury till the full number are qualified to hearken unto the evidence and make deliverance. Eleven jurors, or eight, can give no verdict____ The practice as to the time of administering the oath to the jurors is not uniform; in some districts each juror is separately sworn as called and unchallenged, and in others none are sworn until all are selected. In either case the tribunal is unorganized while there are less than twelve, and until it is organized, for good cause the Court may direct the drawing of the jurors to begin anew.

Alexander v. Commonwealth, 105 Pa. 1, 9 (1884), citing McFadden v. Commonwealth, 23 Pa. 12, 15-16 (1853). See also: Commonwealth v. Almeida, 362 Pa. 596, 636-637, 68 A.2d 595, 615-616 (1949), cert. denied, 339 U.S. 924, 70 S.Ct. 614, 94 L.Ed. 1346 (1950), disapproved on other grounds, Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958) as stated in Commonwealth v. Allen, 475 Pa. 165, 379 A.2d 1335 (1977); Commonwealth v. Curry, 287 Pa. 553, 556-557, 135 A. 316, 317 (1926). “Jeopardy is the peril in which a defendant is put when he is regularly charged with a crime before a tribunal properly organized and competent to try him.” Commonwealth v. Fitzpatrick, 121 Pa. 109, 116, 15 A. 466, 467 (1888), overruled on other grounds, Commonwealth v. Simpson, 310 Pa. 380, 165 A. 498 (1933) (emphasis added). “A jury does not come into being until it is completely selected and sworn.” Commonwealth v. Almeida, supra 362 Pa. at 638, 68 A.2d at 616. See: Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, 149, 149 A.2d 434, 442 (1959) (Dissenting Opinion by Musmanno, J.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 85 (1959).

Mrs. Hyler was only the sixth juror sworn; when the court excused and replaced her, the jury was still incomplete and incapable of rendering a verdict. Thus, jeopardy had not attached.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 2502(c).

      . Rule 1106(e) requires that in capital cases, the court must use the individual voir dire method when potential jurors are examined. Rule 1106(b) gives the trial court discretion in deciding whether to administer the requisite oath individually or collectively. See generally: Commonwealth v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370 (1983).

      . The rule that a juror may be replaced prior to the swearing of a full panel without violating double jeopardy considerations is consistent with Pa.R.Crim.P. 1106(e)(1)(B), which provides in pertinent part: "Without declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to deliberate, provided sufficient alternates have been selected, or the defendant consents to be tried by a jury of less than twelve, pursuant to Rule 1103.”


author: BECK, Judge:

text:
    469 A.2d 1138
    DORMONT MANUFACTURING COMPANY, INC., Appellant, v. ITT GRINNELL CORPORATION.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1983.
    Filed Dec. 30, 1983.

      S. Asher Winikoff, Pittsburgh, for appellant.
    Samuel H. Elkin, Pittsburgh, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

Dormont Manufacturing Company (Dormont) sued ITT Grinnell Corporation (Grinnell) in assumpsit, claiming breach of warranties in Grinnell’s sale of parts for flexible gas connectors manufactured by Dormont. Grinnell counterclaimed for the sales price of the connectors. The court of common pleas, Allegheny County, entered a nonjury verdict for Grinnell on both the claim and the counterclaim and denied Dormont’s exceptions. Judgment was entered against Dormont on October 16, 1981 and this appeal followed.

The controversy in this suit arose out of the composition of the fittings, or unions, that are placed at the end of flexible metallic gas hose. These unions are composed of three pieces of metal joined at a seat. Dormont, a manufacturer of hose connectors for commercial and residential use, bought the fittings from their supplier, Grinnell, beginning in 1973. For a few years the seats of the fittings were made of brass. Brass is an acceptable medium for use in fittings where natural gas is transmitted in the hose. At some time prior to October 1977, Grinnell changed its manufacture of the seat and began to use copper in place of brass. Copper seats are satisfactory for the pumping of water or oil, but do not meet the standards of the American Gas Association for the transportation of natural gas. As a result of the substitution, Dormont claims, they suffered business losses in the form of rejection of Dormont connectors by several purchasers. In particular, Dormont claims damages resulting from rejection of a shipment of 420 hose connectors to the Southern California Gas Company in October 1977.

Dormont first claims that the sale of the fittings with a copper rather than a brass seat breached an express warranty under § 2-313 of the Uniform Commercial Code (12A. P.S. § 2-313, Rep., recodified as 13 Pa.C.S. § 2313). Dormont claims reliance on an express warranty in Grinnell’s catalogue description of the item. However, Grinnell’s catalogue was withdrawn from evidence during the trial by Dormont’s counsel, R. 81-82a, and Dormont’s exceptions make no reference to the catalogue. Therefore, Dormont is precluded from making this argument on appeal.

Dormont also argues that reliance on past sales of fittings with brass seats created a “part of the bargain” between the parties under an express warranty. § 2-313 posits the “basis of the bargain” in an express warranty as either (a) an affirmation of fact or promise made by the seller to the buyer; or (b) any description of the goods; or (c) any sample or model.

The question therefore turns on whether Grinnell made an affirmation, promise .or description upon which Dormont relied, or whether a sample or model formed part of the bargain. Dormont avers no affirmation, promise or description, but avers that it relied on the satisfactory brass seats that were provided by Grinnell in prior sales.

We must then inquire whether the product furnished in past sales acted as a sample or model within the meaning of § 2-313, and we conclude that satisfactory prior sales alone do not constitute such a sample or model. Comment 6 to § 2-313 states:

This section includes both a “sample” actually drawn from the bulk of goods which is the subject matter of the sale, and a “model” which is offered for inspection when the subject matter is not at hand and which has not been drawn from the bulk of goods.

In the instant case, fittings supplied in prior sales are not fittings drawn from the bulk of the goods in the challenged sale, nor were they offered for inspection prior to the sale. The Comment is clear that a sample or a model is something exhibited as such by the seller.

Although we find no Pennsylvania case precisely on point, we are influenced by the discussion in Agricultural Services Association, Inc. v. Ferry-Morse Seed Co., 551 F.2d 1057 (6th Cir.1977) (construing § 2-313 in the law of California and Tennessee). That Court held that when a buyer makes a purchase relying on satisfactory past sales, the prior description and prior product do not constitute a sample absent proof that the parties mutually agreed that the prior description or sample was part of the bargain in question. See also Anderson, Uniform Commercial Code (1983), Vol. 3, 2-313:39 and 313:93 which states that there is no sale by sample when a purchase is made because of the buyer’s past experience with the product; and 67 AmJur. 2d, Sales, (1976), § 456 which states that the primary test under the Uniform Commercial Code is the manifest intention of the parties to treat a sample as the basis of the bargain.

We therefore hold that under § 2-313, an express warranty is not created by the buyer’s reliance on past sales, absent proof that both parties mutually agreed that the past sales constituted a sample for the present bargain.

Dormont next claims that Grinnell breached an implied warranty of merchantability under § 2-314. However, at trial it was adduced that the copper-seated unions were altogether satisfactory for the transmission of water and oil, R. 36a, 166a, possibly even better than those made of brass, and the lower court found as fact that the fittings were fit for ordinary purposes without defect. We find no breach of implied warranty of merchantability.

Dormont also claims that the substitution of copper for brass breached an implied warranty of fitness for particular purpose under § 2-315, because copper is unsatisfactory for the transmission of natural gas. (Copper deteriorates in the presence of sulphur, a component of natural gas. R. 36a). However, the language of § 2-315 clearly states that this warranty is made only when the seller “has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods____”.

Dormont offered no evidence that it relied on Grinnell’s skill or judgment in buying the fittings. In the absence of any proof that Grinnell knew that Dormont was relying on its skill or judgment to provide seats for connectors what would be fit for the purpose of transmitting natural gas, no breach or implied warranty for fitness for particular purpose has been established, and Dormont cannot prevail on this argument. Roupp v. Acor, 253 Pa.Super. 46, 384 A.2d 968 (1978); Sessa v. Riegle, 427 F.Supp. 760 (D.C.Pa.1977); Barney Machinery Co. v. Continental M.D.M. Inc., 434 F.Supp. 596 (D.C.Pa.1977); Lesnefsky v. Fischer & Porter Co. Inc., 527 F.Supp. 951 (D.C.Pa.1981); Wright v. Federal Machine Co. Inc., 535 F.Supp. 645 (D.C.Pa.1982) (all construing Pennsylvania law).

Since we find that the lower court correctly determined that Grinnell breached no warranty, express or implied in the sale of the copper-seated fittings, we find it unnecessary to reach Dormont’s final claim of error on the issue of damages resulting from the seller’s breach.

The order of the lower court denying Dormont’s exceptions is affirmed.

      . § 2-313. Express Warranties by Affirmation, Promise, Description, Sample
      (1) Express warranties by the seller are created as follows:

        (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates and express warranty that the goods shall conform to the affirmation or promise.
      (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
      (c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.

      . § 2-314. Implied Warranty: Merchantability; Usage of Trade
      (1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
      (2) Goods to be merchantable must be at least such as
      (a) pass without objection in the trade under the contract description; and

        (b) in the case of fungible goods, are of fair average quality within the description; and
      (c) are fit for the ordinary purposes for which such goods are used; and
      (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit among all units involved; and
      (e) are adequately contained, packaged, and labeled as the agreement may require; and
      (f) conform to the promises or affirmations of fact made on the container or label if any.

      . § 2-315. Implied Warranty: Fitness for Particular Purpose
      Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.


author: CERCONE, President Judge: SPAETH, Judge,

text:
    470 A.2d 110
    Charles LESLIE, d/b/a L & W Company, Appellant, v. PENNCO, INC.
    Superior Court of Pennsylvánia.
    Argued June 8, 1983.
    Filed Dec. 2, 1983.
    Reargument Denied Feb. 13, 1984.

      Will J. Schaaf, Erie, for appellant.
    Norman H. Stark, Erie, for appellee.

      Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   CERCONE, President Judge:

Plaintiff, Charles Leslie, d/b/a L & W Company, appeals the lower court’s denial of his motions n.o.v. and for a new trial which followed a jury verdict in favor of defendant Pennco, Inc., appellee herein. Appellant contends that the weight of the evidence elicited at trial does not support appellee’s contention that based on language appearing in a purchase order, it was empowered with an option to terminate the entire contract between the parties on a quarterly basis. We agree with appellant and reverse the judgment entered by the lower court, and grant appellant a new trial.

The general rule for a grant of a new trial on the basis that it is against the weight of the evidence allows the granting of a new trial only when the jury’s verdict is contrary to the evidence as to shock one’s sense of justice and a new trial is necessary to rectify this situation. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516 (1970); Brown v. McLean Trucking Co., 434 Pa. 427, 256 A.2d 606 (1969); Jones v. Williams, 358 Pa. 559, 58 A.2d 57 (1948). Unlike appellate review of a refusal to enter a judgment n.o.v., where the evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict winner, the appellate court, in reviewing the refusal to grant a new trial, ordinarily considers all of the evidence. Abbott v. Steel City Piping Co., 437 Pa. 412, 263 A.2d 881 (1970).

The decision of the lower court, either granting or refusing a new trial, is considered to be within the sound discretion of the trial judge and will be reversed on appeal only if the appellate court determines that the trial court palpably abused its discretion. Ditz v. Marshall, 259 Pa.Superior Ct. 31, 393 A.2d 701 (1978). We find that the instant case justifies a reversal under the above test.

In 1978, Charles Leslie, appellant, was approached by Jack Wheeler who was a manufacturer’s representative for Iroquois Tool Company. Wheeler told Leslie that his company had been offered a contract by Pennco to manufacture seventy-five hundred humidifiers, to be completed in a year’s time. (Pennco had been licensed to manufacture and distribute the humidifier.) Wheeler asked Leslie if he was interested in manufacturing them. Leslie expressed his interest and subsequently went with Wheeler and a Mr. Haas, of Iroquois, to discuss the idea with Thomas Fadale, president of Pennco. Apparently no written agreement was drawn up, but a purchase order was sent from Pennco to L & W, the company which Leslie formed for the express purpose of mariufacturing these 7500 humidifiers. The purchase order set a price of $32.00 per humidifier to be paid after each delivery; this figure provided L & W with an $11.00 profit on each humidifier. Leslie borrowed fifty thousand dollars from the bank which is what Iroquois demanded for tooling and consulting service, and for rights to the contract.

The purchase order set forth the agreement for Pennco’s order of 7500 humidifiers as a “blanket order for 5-15-78 through 4-15-79.” It specified certain dates for production and set the rate for delivery. Nine hundred units were to be completed by the end of the first quarter. After that, 750 units were to be delivered' each month. After 3,946 humidifiers were delivered to Pennco, it refused to accept further delivery. This refusal left approximately 3,530 of the ordered humidifiers unmanufactured.

At the bottom of the purchase order were the words: “PLEASE NOTE THE ABOVE RELEASE SCHEDULE TO BE REVIEWED QUARTERLY.”

The evidence is unconstradicted that the parties never arrived at a mutual understanding that this phrase meant that Pennco could terminate its agreement as part of its quarterly review and thereby reject the remainder of the humidifiers. Nevertheless, Thomas Fadale of Pennco testified at trial that, in his mind, the phrase included just such an option.

If sales were good — and we anticipated that they would be; we had — we were going to do an awful lot to make them by that way — we could increase production; but if sales were bad, as they turned out, then we could decrease production and possibly stop it.

Fadale also testified that the custom in the industry supported his interpretation.

On cross examination, this exchange occurred:

Q. [by Mr. Schaaf, attorney for plaintiff-appellant]: My question is this: Did you and Mr. Haas at any time discuss the idea that you could terminate this contract and not buy seventy-five-hundred units?
A. [by Fadale]: No, sir.
Q. Then you agree with me that what was contemplated here was that Haas and Iroquois would supply seventy-five-hundred in the — in the monthly projections and you would ultimately buy seventy-five hundred.
A. No, sir, I don’t agree with you on that.
Q. You don’t agree?
A. No.
Q. Well, I thought a moment ago you said that you were obligated to buy the seventy-five-hundred. Did you talk about buying fewer than that and terminating?
A. We did not discuss buying fewer, but on the bottom of the purchase order we did put the statement that we could review quarterly, which meant that we could increase our production — or his production or decrease his production.
Q. Mr. Fadale, I’m going to ask you the question again because obviously I didn’t make it clear. I’m going to make it very simple. Recognizing you could increase or decrease by a quarterly review the monthly deliveries, recognizing that, did you ever with Mr. Haas discuss the idea that you could walk in and say stop, we are not going to buy the full seventy-five-hundred?
A. No.
Q. Now, when that matter — When it came time for a purchase order to be given to L & W, this matter never even came up, did it?
A. No, sir.
Q. It was never even discussed between you and Mr. Leslie.
A. No.
Q. The only discussions of rescheduling were with Mr. Haas at Iroquois and neither with Mr. Haas nor indeed with Mr. Leslie was there any suggestion that you could buy fewer than seventy-five-hundred units. Do you agree with me?
A. Yes.

The explanation of Fadale corroborated that of appellant Leslie who answered as follows in response to his own attorney’s questions on direct examination:

Q. Now, in capital letters down at the bottom of the page would you read to the Court and the jury what it says?
A. “Please note the above release schedule to be reviewed quarterly.”
Q. What is the, quotes, above release schedule? What is that?
A. Release schedule is up above here. There’s — in capital letters it says, “Released as follows.” This is following the amount of humidifiers that were ordered within the designated amount of time, and this was merely the rate at which we would — we are asked to produce and deliver the humidifiers.
Q. Now, was that acceptable to you to permit the review of the release schedule as you went along?
A. Yes, sir, it was.
Q. And what was the background discussion that led to the insertion of that phraseology?
A. It was posed to me that this was the start and that they would — they anticipated wanting a greater number or wanted them faster than seven-hundred-and-fifty a month as the sales program took off.
Q. When you say “they,” would you identify the person with whom you discussed this matter?
A. Tom Fadale.
Q. And at any time did you and Mr. Fadale talk about the contingency of reducing that monthly release schedule?
A. No, sir.
Q.' Was there ever any hint or indication at any time that at a given quarter the whole deal could be canceled?
A. No, sir.

Thus, it is uncontradicted that the parties never came to a mutual understanding regarding the meaning of the phrase:

“The above release schedule to be reviewed quarterly.”

Appellee asserts, however, that Leslie, who was an experienced businessman, knew or should have known that the phrase implied that appellee could stop production if the humidifiers did not sell. Appellee contends that orders such as that involved within are customarily terminated if a product does not sell and that appellant should have known this, despite the fact that they never discussed the possibility-

However, more is necessary in a consideration of custom as it relates to intent than a party’s own statement of just what the custom is. As this court has held

Evidence of an industry custom or usage which is notorious, well-established and reasonable is always a relevant consideration in determining the intent of the contracting parties. Fisher v. Congregation of B’Nai Yitzhok, 177 Pa.Superior Ct. 359, 110 A.2d 881 (1955); Lancaster Transportation Co. v. New York and New Brunswick Auto Express Company, 187 Pa.Superior Ct. 621, 146 A.2d 150 (1958) in Pittsburgh National Bank v. Allison Engineering Co., 279 Pa.Superior Ct. 442, 447-8, 421 A.2d 281, 284 (1980).

Moreover, the Uniform Commercial Code, as embodied into Pennsylvania law defines Usage of Trade as

any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed, with respect to the transaction in question. The existence and scope of such a usage are to be proved as facts. 13 Pa.C.S.A. § 1205(b).

The evidence of usage of trade as supporting appellee’s subjective intent falls far short of establishing that the agreement between the parties gave rise to appellee’s option to terminate it. For example, in Pittsburgh National Bank v. Allison Engineering Co., supra, 279 Pa.Superior Ct. at 449, 421 A.2d at 285, the court looked to two previous cases which illustrated that the custom proposed by one of the parties to bolster its position had become so universally accepted as to become a rule of law. And, in Lancaster Transportation Co., supra, 187 Pa.Superior Ct. at 623, 146 A.2d at 151, this court said that to establish a custom, the evidence by which it is proposed to prove it, must be clear, uncontradictory and distinct ... so ... as to leave no doubt upon the mind with reference to its nature and character (cit. omitted).

In the instant case, Mr. Haas, the original seller, offered testimony that in similar situations, purchasers had terminated blanket orders with him. But he did not state that he expected such treatment in the custom of the business; rather, he expressed some dissatisfaction with the fact that it happened at all. And, as for Fadale’s testimony, he supplied no previous experiences with such custom and usage, but spoke in theoretical terms regarding his asserted rights to terminate. Appellee has not presented any case law to support his assertion of such a custom.

On the other hand, the challenged sentence “PLEASE NOTE THAT ABOVE RELEASE SCHEDULE TO BE REVIEWED QUARTERLY” was explained by appellant to mean only what it states, that the rate at which the 7500 humidifiers were to be released to appellee could be altered quarterly. We are not persuaded that the evidence presented by appellee Pennco supports any other interpretation..

Therefore, verdict and judgment reversed and a new trial is ordered.

SPAETH, J., filed a dissenting opinion.

SPAETH, Judge,

dissenting:

Rather than grant a new trial, I should vacate the judgment in favor of appellee, enter judgment n.o.v. in favor of appellant, and remand for a hearing on damages.

Not only do I find the jury verdict to be against the weight of the evidence, as does the majority, but I further find that there was insufficient evidence to support the verdict. In reviewing a trial court’s denial of a judgment n.o.v., the evidence, and all reasonable inferences from it, must be viewed in the light most favorable to the verdict winner. Szumski v. Lehman Homes, Inc., 267 Pa.Super. 478, 406 A.2d 1142 (1979). All conflicts in the evidence must be resolved in favor of the verdict winner. Id. But if after this standard is applied it appears that there is insufficient evidence to support the verdict, judgment n.o.v. should be entered. Id. Here, as'the majority observes, the evidence is uncontroverted that the parties did not arrive at a mutual understanding as to the meaning of the phrase at issue. At 26-29. Also as the majority observes, the evidence of trade usage was insufficient to establish a custom or usage in the trade consistent with appellee’s interpretation of the phrase. At 29-31. Accordingly, the verdict, representing as it did a finding that the parties had agreed upon appellee’s interpretation of the phrase, was unsupported by the evidence.

Given that the parties did not arrive at a mutual understanding as to the meaning of the phrase at issue, the court was required to rely upon a rule of construction to resolve the dispute. Since the writing in question was drafted by appellee, and since it was ambiguous, the appropriate rule of construction was that it should be construed against appellee. See Central Transportation, Inc. v. Board of Assessment Appeals of Cambria County, 490 Pa. 486, 417 A.2d 144 (1980); In re Breyer’s Estate, 475 Pa. 108, 379 A.2d 1305 (1977); Burns Manufacturing Co., Inc. v. Boehm, 467 Pa. 307, 356 A.2d 763 (1976). See also Restatement (Second) of Contracts § 206 (1981). The reasoning behind this rule of construction is well-stated in Comment a to Section 206 of the Restatement (Second) of Contracts:

Where one party chooses the terms of a contract, he is likely to provide more carefully for the protection of his own interests than for those of the other party. He is also more likely than the other party to have reason to know of uncertainties of meaning. Indeed, he may leave meaning deliberately obscure, intending to decide at a later date what meaning to assert. In cases of doubt, therefore, so long as other factors are not decisive, there is substantial reason for preferring the meaning of the other party.

I should therefore hold that the phrase in question did not give appellee the right to terminate the contract upon quarterly review.

Accordingly, I should vacate the judgment in favor of appellee, enter judgment n.o.v. in favor of appellant, and remand for a hearing on damages.

      . Although the phrase in question may more naturally be read as interpreted by appellant, it is not so free from ambiguity as to warrant application of the plain meaning rule. See Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982).