author: HOFFMAN, Judge:

text:
    484 A.2d 180
    William C. EBNER and Susanna Ebner, his wife v. Benjamin EWIAK, Appellant, and Elma Ewiak.
    Superior Court of Pennsylvania.
    Submitted March 23, 1984.
    Filed Nov. 9, 1984.

      Joseph J. May, Erie, for appellant.
    Michael E. Dunlavey, North East, for Ebner, appellees.
    Elma Ewiak, appellee, in propria persona.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   HOFFMAN, Judge:

Appellant alleges error in: (1) the admission of appellees’ cost lists; (2) the admission of his wife’s testimony against him; (3) the lower court’s refusal to give certain requested jury charges; (4) the rendering of the jury verdict in the absence of his defense counsel; (5) the amount of damages awarded; and (6) the rejection of after-discovered evidence. We find these contentions meritless and, accordingly, affirm the order below.

In November of 1974, the Ebners and the Ewiaks agreed to construct a home for the Ebners on property owned by the Ewiaks. The Ewiaks, Mrs. Ebner’s parents, also agreed to deed over the home and underlying property to the Ebners once construction was completed. After the home was finished and the Ebners moved in, Mr. Ewiak refused to deliver the deed to his daughter and son-in-law. Consequently, on April 21, 1978, the Ebners brought a breach of contract action against the Ewiaks, seeking to (1) compel the defendants to deed the house and property to them and (2) recover damages for work performed and materials provided in the construction of the house. The complaint also alleged that Mr. Ewiak had harassed the plaintiffs after they moved in thereby causing them to move to New York, and sought additional damages therefor. Following a July 10, 1981 trial, the jury found Mr. Ewiak liable and awarded the plaintiffs damages of $6,400.00 for breach of contract and $2,100.00 for harassment. The jury also found that Mrs. Ewiak was not a party to the breach of contract nor the harassment. Mr. Ewiak filed a motion for a new trial, which the lower court denied en banc on August 23, 1982. This appeal by Mr. Ewiak followed.

Appellant first contends that the trial court erroneously admitted into evidence appellees’ material and labor cost lists (Plaintiffs’ Exhibits 1 and 2). He argues specifically that these lists were inadmissible hearsay because they did not qualify under either the business records or recorded recollection exceptions. We find, however, that appellant has failed to preserve this argument for appeal because, during the trial, he objected to the admission of these lists on different grounds, namely, that the list did not include a $3,500 figure and was made from memory. “Where a litigant objects to evidence on appeal on a different ground than that which was asserted at trial, we will not consider the new objection since it has not been properly preserved for appellate review.” Stulz v. Boswell, 307 Pa.Superior Ct. 515, 524, 453 A.2d 1006, 1010 (1982). See also Estate of Cusat, 470 Pa. 418, 368 A.2d 698 (1977); Lewis v. Pittsburgh Railways Co., 386 Pa. 490, 126 A.2d 454 (1956).

Appellant also contends that his wife was erroneously allowed to present testimony against him at trial in violation of 42 Pa.C.S.A. § 5924(a). Section 5924(a) provides that: “In a civil matter neither husband nor wife shall be competent or permitted to testify against each other.” The rationale for this privilege against adverse spousal testimony is generally said to be “the preservation of marital harmony and the resultant benefits to society from that harmony.” Commonwealth ex rel. Platt v. Platt, 266 Pa.Superior Ct. 276, 282, 404 A.2d 410, 413 (1979). However, this privilege has been sharply criticized by the United States Supreme Court, which called the justification “unpersuasive” because, when one spouse is willing to testify against another, the marriage is almost certainly “in disrepair”. Trammel v. United States, 445 U.S. 40, 52, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980). In that case, the Supreme Court held that, apart from confidential communications, a witness spouse alone has the privilege to refuse to testify adversely and may be neither compelled to testify adversely nor foreclosed from testifying. The Court stated:

Testimonial exclusionary rules and privileges contravene the fundamental principle that “the public ... has a right to every man’s evidence.” ... As such, they must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.”

Id. at 50, 100 S.Ct. at 912 (citations omitted). Therefore, the Court ruled that, where the spouse of an accused in a criminal case chose to testify against him after being granted immunity and given assurances of lenient treatment, the testimony was not rendered involuntary and the accused’s claim of privilege was properly rejected. Cf. Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981) (defense of interspousal immunity as a bar to suits is abolished in this Commonwealth).

In the instant case, we need not assess the validity of § 5924(a) because we hold that § 5924(a) is inapplicable to a defendant-wife who is testifying on her own behalf even though her testimony has an adverse effect on her husband’s interests. Mrs. Ewiak was a defendant in appellees’ breach of contract action against her and her husband and, in order to exculpate herself, testified that appellant agreed to deed over the property when the home was completed, N.T. July 10, 1981 at 118, and that appellant threatened and harassed appellees, N.T. July 10, 1981 at 121-22. As a result, the jury found that she was not liable for either breach of contract or harassment. Additionally, because Mrs. Ewiak had been separated from her husband for three years when she testified, N.T. July 10, 1981 at 122, the justification for § 5924(a), i.e. preserving marital harmony, simply does not apply. Were we to hold that Mrs. Ewiak’s testimony was barred by § 5924(a), Mrs. Ewiak would be left without a way of presenting a defense on her own behalf.

We find Williams v. Williams, 1 Pa.D. & C.3d 723 (Delaware Co. 1977), analogous. In that case, the plaintiff sued on a promissory note executed by the defendants. The defendant-wife testified on her own behalf that she had been instructed by her husband to sign the note as a “witness”. The defendant-husband, who admitted liability, was also permitted to testify as to the circumstances surrounding the execution of the note and his testimony contradicted that of his wife. Although the verdict for the defendant-wife was overturned because it was held to be against the weight of the evidence, the court also held that the statute prohibiting testimony by one spouse against the other was not applicable to a proceeding brought by a third party wherein one spouse, in defense of the action, seeks to protect her separate property. The court reasoned:

If the wife can sue her husband alleging fraud and testify against him in a proceeding to recover her separate property, she can defend a suit against herself: Morrish v. Morrish, 262 Pa. 192, 105 Atl. 83 (1918). This is true even if in her defense the wife alleges and proves facts charging her husband with the perpetration of a fraud.

Id. at 725. We agree. Everyone is entitled to defend him or herself in a lawsuit. We see no reason to charge Mrs. Ewiak with her husband’s guilt by not permitting her to testify on her own behalf.

Appellant next contends that the lower court erred in failing to charge the jury on the points submitted by defense counsel. We agree with the lower court that (1) appellant’s requested points were based on the assumption that the evidence demonstrated two separate contracts and (2) the evidence at trial indicated that only one contract was entered into for the construction of the house and the conveyance of the property to appellees. See Lower Court Opinion at 4. We therefore reject this contention.

Appellant also argues that the jury verdict was erroneously rendered in the absence of defense counsel, thereby depriving him of the right to request a polling of the jury or to move for judgment n.o.v. We find Henderson v. Zubik, 390 Pa. 521, 136 A.2d 124 (1957), dispositive. In that case, our Supreme Court held that absence of counsel at the time the verdict is announced and recorded in a civil case is no ground for a new trial. Id., 390 Pa. at 525-26, 136 A.2d at 127. The Court stated:

[I]t is solely the responsibility of counsel to assure his own presence at such times as the jury might return its verdict. This is particularly true in a case such as this, where the verdict is returned while the court is still in session. It would be intolerable to impose upon the court the responsibility to notify counsel that the court was about to record the verdict. The parties and their counsel have a full opportunity to be present at this time and to make any motions or requests to poll the jury that it may see fit.

Id. We further note that taking a poll of the jury is a matter which rests within the sound discretion of the trial court, Dettra Will, 415 Pa. 197, 205, 202 A.2d 827, 832 (1964); Henderson v. Zubik, supra, 390 Pa. at 525, 136 A.2d at 127; Slavin v. Gardner, 274 Pa.Superior Ct. 192, 194 n. 2, 418 A.2d 361, 362 n. 2 (1979), and that appellant had ten days from the date of the verdict within which to file a motion for judgment n.o.v. See Pa.R.Civ.P. 227.1 (effective 1977).

Appellant’s allegation that the jury verdict was excessive is also without merit. “[0]n appeal we will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice.” Fretts v. Pavetti, 282 Pa.Superior Ct. 166, 176, 422 A.2d 881, 885 (1980). Here, we agree with the lower court that the verdict was not so excessive as to shock our sense of justice:

The plaintiffs [appellees] both testified that they spent approximately Three Thousand Dollars ($3,000) in materials and expended approximately twelve hundred (1,200) hours in labor in the construction of the house, the fair value of said labor amounting to Five Thousand Dollars ($5,000). The plaintiffs [appellees] also provided written lists to substantiate this testimony. The jury awarded plaintiffs Sixty-four Hundred Dollars ($6,400) for the materials and labor, which is less than plaintiffs claimed. The Twenty-one Hundred Dollar ($2,100) award for harassment, in the light of the testimony presented, does not shock the conscience of the court.

(Lower Court Opinion at 2).

Finally, appellant contends that new evidence discovered by him since the trial would alter the original verdict and therefore warrants a new trial.

To secure a new trial on the ground of after-discovered evidence or discovery that false testimony was given, “ ‘the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility, and must be such as would likely compel a different result____’”

R & S Millwork, Inc. v. Commonwealth, Department of Transportation, 42 Pa.Commonwealth Ct. 624, 628, 401 A.2d 587, 589 (1979) (citations omitted); accord, Hydro-Flex, Inc. v. Alter Bolt Co., Inc., 223 Pa.Superior Ct. 228, 232, 296 A.2d 874, 877 (1972). Here, appellant has failed to show that such evidence, i.e. a ledger which tends to establish lower costs for appellees, could not have been obtained with reasonable diligence prior to the trial. We find his bare assertion that “[t]he ledger was searched for prior to trial but could not be found by the Defendant,” insufficient. (Brief for Appellant at 15-16). As the lower court correctly noted, appellant had three years between the filing of appellees’ complaint and the trial in which to find the ledger. See Lower Court Opinion at 3.

Accordingly, we find that the lower court properly denied appellant’s motion for a new trial.

Affirmed.

         In this respect, we find Canole v. Allen, 222 Pa. 156, 70 A. 1053 (1908), distinguishable. Canole involved a trespass action against a husband and wife where it was admitted that the husband had committed actual trespass. Our Supreme Court held that it was reversible error for the trial court to permit the husband to testify because he had been called as for cross-examination for the sole purpose of testifying against the wife.


source: Caselaw Access Project

license: Public Domain

text:
    484 A.2d 185
    PRINCETON SPORTSWEAR CORPORATION v. H & M ASSOCIATES, Sidney Becker and Leonard Becker, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1984.
    Filed Nov. 9, 1984.
    Petition for Allowance of Appeal Granted April 8, 1985.

      Robert H. Malis, Philadelphia, for appellants.
    Lewis Kates, Philadelphia, for appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order entering judgment in favor of appellee-lessee and against appellants-lessors in the amount of $600,000.00. Because we find that certain clauses in the lease agreement exculpate appellants from liability for damages allegedly sustained by appellee, we reverse the order below.

Pursuant to the terms of a May 2, 1973 lease agreement, appellee, Princeton Sportswear Corp., became a third floor tenant of Building No. 12 of a Philadelphia industrial complex known as the “Hardwick and McGee Complex” (H & M Complex). This complex was owned by appellant H & M Associates, a partnership formed by appellants Leonard and Sidney Becker. The lease was executed by appellee’s president, Morton Fischer, and by Leonard Becker on behalf of H & M Associates (then known as Man-Tex Clothes, the predecessor-in-interest to H & M Associates); consisted of a form lease submitted by appellants and an addendum prepared by appellee’s counsel; and provided for a two-year tenancy commencing July 1, 1973 with two options to extend the term exercisable by the lessee.

On March 30, 1978, approximately ten months after appel-lee had exercised its second option to extend the lease for five years, a fire of unknown origin occurred at the H & M Complex, destroying the power center and thereby depriving appellee of heat, electricity and water. Subsequently, appellants in an April 4, 1978 letter, terminated the lease, as extended, pursuant to its terms but allowed appellee to remain on the premises on a month-to-month basis. Appel-lee responded on April 5, 1978 by filing a petition for a preliminary injunction and a complaint in equity against appellants (1) seeking to compel appellants to restore electrical service to Building No. 12, (2) alleging appellants’ intentional breach of the lease by refusing to repair the demised premises, and (3) demanding compensatory and punitive damages. Two days later, at a conference prior to a hearing on appellee’s request for a mandatory injunction, the parties entered into a stipulation whereby appellants agreed to allow appellee to make arrangements with Philadelphia Electric Company for restoring electricity to Building No. 12 without prejudice to appellee’s right to seek reimbursement from appellants for the expenses incurred. Although temporary electrical service was restored by the end of April, 1978, appellee found that the electrical, heat, security and sprinkler services remained inadequate and, consequently, moved its entire operation to a new location in October, 1978.

Following a final hearing on appellee’s complaint, the lower court entered an adjudication on March 14, 1983, finding in appellee’s favor in the amount of $600,000.00. Appellants subsequently filed exceptions which were denied. This appeal followed.

Appellants contend that the exculpatory clauses in Paragraphs 11(a) and (b) of the lease agreement relieve them from all liability to appellee for the damages allegedly suffered by appellee as a result of the fire. Appellee claims that appellants’ failure to raise expressly the exculpatory clauses in the court below constitutes a waiver of that issue. We find this claim meritless. The validity and effect of the exculpatory clauses were raised and exhaustively discussed by both parties in their summary judgment motions, trial memoranda, and briefs in support of and in opposition to appellants’ exceptions to the lower court’s findings of fact, conclusions of law, and adjudication. Accordingly, we hold that appellants have not waived their right to assert the exculpatory clause defense.

Having determined that appellants have not waived the exculpatory clause issue, we now turn to a consideration of the validity of the clause.

Generally speaking, an exculpatory clause is valid if: (a) “it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State” ...; (b) “the contract is between persons relating entirely to their own private affairs” ...; (c) “each party is a free bargaining agent” and the clause is not in effect “a mere contract of adhesion whereby [one party] simply adheres to a document which he is powerless to alter, having no alternative other than to reject the transaction entirely.”

Employers Liability Assurance Corp., Ltd. v. Greenville Business Men’s Association, 423 Pa. 288, 291-92, 224 A.2d 620, 622-23 (1966) (citations omitted). Additionally, a generally valid exculpatory clause must meet the following standards before it will be interpreted so as to relieve a person of a liability that the law would otherwise impose:

(1) contracts providing for immunity from liability for negligence must be construed strictly since they are not favorites of the law ...; (2) such contracts “must spell out the intention of the parties with the greatest of particularity” ... and show the intent to release from liability “beyond doubt by express stipulation” and “[n]o inference from words of general import can establish it” ...; (3) such contracts must be construed with every intendment against the party who seeks the immunity from liability ...; (4) the burden to establish immunity is upon the party who asserts such immunity____

Id., 423 Pa. at 292-93, 224 A.2d at 623 (citations omitted). This Court applied those standards in Richard’s 5 & 10, Inc. v. Brooks Harvey Realty Investors, 264 Pa.Superior Ct. 384, 399 A.2d 1103 (1979), to find that a commercial lease which provided that “Landlord ... shall not be liable for damages ... sustained by Tenant ... including ... claims for damages resulting from ... water ... coming through the roof ...” was ambiguous in regard to whether the landlord was liable to the tenant for water damage allegedly caused by a failure to repair the roof because it did not state that the landlord was exonerated from liability for breach of its duties specifically set forth in the lease (including the duty to keep the roof in proper repair). Therefore, we held that such an exculpatory clause did not immunize the landlord from liability for water damage unless it was shown on remand that the parties intended the clause to have that effect.

In the instant case, the exculpatory clauses in question provide the following:

11(a) Lessee agrees to be responsible for and to relieve and hereby relieves the Lessor from all liability by reason of any injury or damage to any person or property in the demised premises, whether belonging to the Lessee or any other person, caused by any fire, breakage or leakage in any part or portion of the demised premises, or any part or portion of the building of which the demised premises is a part, or from water, rain or snow that may leak into, issue or flow from any part of the said premises, or of the building of which the demised premises is a part, or from the drains, pipes, or plumbing work of the same, or from any place or quarter, whether such breakage, leakage, injury or damage be caused by or result from the negligence of Lessor or his servants or agents or any person or persons whatsoever.
11(b) Lessee also agrees to be responsible for and to relieve and hereby relieves Lessor from all liability by reason of any damage or injury to any person or thing which may arise from or be due to the use, misuse or abuse of any or any of the elevators, hatches, openings, stairways, hallways of any kind whatsoever, which may exist or hereafter be erected or constructed on the said premises, or from any kind of injury which may arise from any other cause whatsoever on the said premises or the building of which the demised premises is a part, whether such damage, injury, use, misuse, or abuse be cause by or result from the negligence of Lessor, his servants or agents or any other person or persons whatsoever.

(Emphasis added). Paragraph 11(a) was modified by a typewritten addendum prepared by appellee’s counsel, as follows:

Notwithstanding the provisions of paragraph 11(a) of the lease agreement the negligence of the lessor, his servants or agents shall be excepted therefrom.

Therefore, appellants assert that they are relieved of all liability under the exculpatory clauses, as modified, absent any allegation of negligence on their part. In applying the standards outlined above, we find that the clauses are generally valid because a commercial lease is involved and there was no disparity in bargaining power between the parties. The exculpatory clauses had been reviewed, negotiated and modified by both parties and their counsel. Moreover, we find that the clauses, as modified, evidence a clear and unambiguous intent to release appellants from liability for damages caused by fire where such fire was not the result of any negligence on appellants’ part. Accordingly, we hold that the exculpatory clauses in the instant lease are enforceable.

Finally, we must consider the effect of the exculpatory clauses in question. Under the plain unambiguous language of the clauses, it is clear that appellants are not liable to appellee for any property damage caused by the fire in “any part or portion of the building of which the demised premises is a part”, unless such fire was caused by negligence on appellants’ part. Here, there can be no question that the damaged power center of the H & M Complex constituted a “part or portion of the building of which the demised premises [was] a part”. Moreover, the lower court specifically found that appellants’ conduct was not tortious. Therefore, because we can find no reason either to invalidate or give less than complete effect to the exculpatory language of paragraphs 11(a) and (b), we hold that appellants are not liable for the damages appellees allegedly suffered as a result of the fire. Accordingly, we must reverse the lower court’s order.

Reversed.

Jurisdiction is not retained.

      . Appellee contends that "[n]either the boiler for the central heating system ... nor the electrical substation ... was damaged either by the fire or by the water from the fire hoses.” (Brief for Appellee at 7). Instead, appellee alleges that post-fire vandalism was the cause of the damage to the heating and electrical systems. However, appellee’s contention is undermined by: (a) the testimony of appellee’s secretary-treasurer, Anthony Fischer, who testified that, as a result of the fire and attempts to extinguish it, the power center was substantially flooded and destroyed. (N.T. December 16, 1980 at 120-22); and (b) appellee's sworn Complaint filed in federal district court against its insurer, alleging, inter alia, that the March 30, 1978 fire "destroyed and render[ed] useless electrical service to [its building in the H & M Complex], its heating system, its pumping station supplying water for its sprinkler system and for its water service.” Princeton Sportswear Corp. v. Rionione Adriatica D. Sicorta, t/a Adriatic Insurance Co., No. 79-389, Complaint, Paragraph 8 (E.D.Pa. filed January 30, 1979).

      . Paragraph 12(c) of the lease provides that:
      Lessor shall make such election to repair the premises or terminate this lease by giving notice thereof to Lessee at the leased premises within thirty days from the day Lessor received notice that the demised premises had been destroyed or damaged by fire or other casualty.
      In their April 4, 1978 letter, appellants terminated the lease immediately; however, they also stated that they would allow appellee to remain on the premises on a month-to-month basis, provided the rent and all arrearages continued to be paid.

      . Appellee also claims that appellants' failure to raise the exculpatory clauses as an affirmative defense under the heading of "New Matter’’ in their answer constitutes a waiver of that defense under Pa.R.Civ.P. 1030. Because appellee did not raise this claim prior to the filing of its appellate brief, we find it waived. See Pa.R.A.P. 302(a); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

      . Because of our disposition of this case, we need not address appellants' other contentions.
      Subsequent to the filing of its appellate Brief, appellee filed a Petition for Leave to Submit Certain Facts pursuant to Pa.R.A.P. 2501. Essentially, this Petition seeks to disqualify appellants’ appellate counsel (different from trial counsel) and to quash appellants’ Briefs on the grounds that: (1) a conflict of interest allegedly exists between appellants’ counsel and appellee’s major creditors (appellee ceased its operations and sought to liquidate its assets by the end of August, 1983); and (2) because of this conflict, appellants’ counsel became aware and took advantage of confidential facts which it otherwise would not have been privy to. However, because our disposition of the instant case centers on our construction of the lease agreement — specifically, on our interpretation of the exculpatory clauses— our decision is unaffected by the allegations in appellee’s Petition. We also note, parenthetically, that appellee does not specify the confidential facts or information which appellants’ counsel allegedly acquired as a result of the conflict of interest. Accordingly, we deny appellee’s Petition.


author: ROBERTS, Judge:

text:
    484 A.2d 189
    COMMONWEALTH of Pennsylvania, Appellant, v. Lamont BARKLEY.
    Superior Court of Pennsylvania.
    Argued July 11, 1984.
    Filed Nov. 9, 1984.

      Dara A. DeCourcy, Deputy District Attorney, Pittsburgh, for Com., appellant.
    John H. Corbett, Jr., Public Defender, Pittsburgh, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   ROBERTS, Judge:

The Commonwealth, District Attorney of Allegheny County, appeals from a pre-trial order entered in the above matter which prohibits the Commonwealth’s use of evidence of an alleged robbery at appellee’s forthcoming trial on the charge of criminal homicide, “for the purpose of establishing the alleged robbery as the underlying felony in furtherance of any Commonwealth theory seeking to establish second degree or ‘felony’ murder____” The pre-trial order followed entry of a separate pre-trial order severing the charges of robbery and criminal homicide for purposes of trial. Because the order has the effect of terminating prosecution on a theory of felony-murder and “substantially handicaps” prosecution on the charge of criminal homicide generally, the Commonwealth has taken a direct appeal. See Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

The alleged robbery which forms the basis for the Commonwealth’s felony-murder theory occurred at approximately 12:30 p.m., on March 20, 1982, in the Borough of Penn Hills, Allegheny County. The alleged criminal homicide “committed while defendant was engaged as a principal or accomplice in the perpetration of a felony” occurred 25 hours later and 10 miles away, at approximately 1:30 p.m., on March 21, 1982, in the Oakland section of the City of Pittsburgh. The victim of the alleged criminal homicide, according to the Commonwealth’s offer of proof, “had just alighted from a bus along with other passengers” when she was struck by an automobile being driven by appellee. City police had been engaged in a high-speed chase with appellee when the alleged homicide occurred. The chase commenced “some minutes” before the alleged homicide, when City police determined that appellee’s vehicle matched the description of the getaway vehicle involved in the previous day’s robbery in Penn Hills.

The Commonwealth’s offer of proof included a representation that appellee matched the description of one of the perpetrators of the robbery which had been given by a witness, and that testimony would be forthcoming from the victim of the robbery which would positively identify appel-lee. The offer further represented that on the evening of the alleged homicide, appellee gave police detectives a statement in which he admitted his involvement in the alleged robbery and in the high-speed chase which led to the alleged homicide. Appellee specifically admitted, according to the offer, “that it was his belief that the police were at [the] time [of the high-speed chase], associating his vehicle as the one involved in the ... robbery.” Shortly after the alleged homicide, appellee also allegedly told his sister that he and “ ‘another guy’ ... did a robbery and that today he saw a police car turn around and he thought the car was coming after him for the robbery and he got scared and took off.”

Appellee, in his statement to police detectives, “indicated that [he and his accomplice] split the [robbery] proceeds of approximately $140.00,” and further indicated that he had been both “out jogging” and at his residence for at least a portion of the 25 hours between the two alleged crimes. Additionally, the record shows that appellee allegedly engaged in another robbery in that 25-hour period. The Commonwealth has not proposed to link this other alleged robbery with the homicide of March 21, 1982.

We agree with the court of common pleas that on the facts presented, “the Commonwealth is seeking to stretch the felony-murder theory beyond limits indicated by [our] Supreme Court.” Those limits, which were established under case law decided prior to the Crimes Code, provide that an actor may be found guilty of felony-murder only “if there was ‘no break in the chain of events’ between the killing and the [felony] such that the homicide ‘had an ultimate relation to and close connection with the felony.’ ” Commonwealth v. Kichline, 468 Pa. 265, 273, 361 A.2d 282, 286 (1976), quoting Commonwealth v. Carey, 368 Pa. 157, 162, 82 A.2d 240, 242 (1951). Here, the alleged homicide occurred more than one full day after the alleged robbery. During the period between the alleged crimes, appellee divided the proceeds with his companion, went jogging, spent some time at home, and engaged, according to a separate charge, in a robbery which was unrelated to the alleged homicide. As the trial court held, we hold that on this record there was a “break in the chain of events” sufficiently obvious to foreclose further prosecution of the felony-murder charge.

The Commonwealth, in an effort to diminish the significance of the time and several events intervening between the alleged felony and the alleged felony-murder, emphasizes the admission by appellee that he attempted to elude police out of fear of apprehension for the previous day’s robbery. On the basis of this single factor, the Commonwealth would characterize the high-speed chase as “renewed flight,” on which the felony-murder prosecution may properly be based.

Although appellee’s purpose at the time of the alleged homicide is surely an important consideration, that purpose is by no means sufficient to establish that the death in this case occurred during “flight after committing” the alleged robbery, 18 Pa.C.S. § 2502(d). Under well-established caselaw, our Supreme Court looks to whether there is “unity” of “time, place, and purpose,” Commonwealth v. Kelly, 333 Pa. 280, 4 A.2d 805 (1939), and 337 Pa. 171, 10 A.2d 431 (1940). In so considering deaths occurring during “flight,” our Supreme Court has observed that “[t]here is unity of criminal action between the planning of a crime, its execution or attempted execution and the flight from the scene,” id., 337 Pa. at 175, 10 A.2d at 433, not “flight” whenever and from wherever it occurs.

The rejection of the Commonwealth’s “renewed flight” theory, based solely on appellee’s admitted purpose at the time of the alleged homicide, is further compelled by the Crimes Code. The Crimes Code’s definition of “perpetration of a felony,” for- purposes of the felony-murder doctrine, 18 Pa.C.S. § 2502(b), is very similar to its definition of the phrase “in the course of committing a theft,” which is used in defining robbery, 18 Pa.C.S. § 3701(a). Under 18 Pa.C.S. § 2502(d), “perpetration of a felony” includes “[t]he act of a defendant in engaging in ... flight after committing ...” a specified felony. Under 18 Pa.C.S. § 3701(a), “[a]n act shall be deemed ‘in the course of committing a theft’ if it occurs in an attempt to commit theft or in flight after the attempt or commission.” In elaborating upon this latter definition, Comment to the Model Penal Code (upon which the Crimes Code’s definition is based) offers no “rule-of-thumb ... to delimit the time and space of ‘flight,’ ” but does observe that

“[t]he concept of ‘fresh pursuit’ will be helpful in suggesting realistic boundaries between the occasion of the theft and a later distinct occasion when the escaped thief is apprehended.”

American Law Institute, Model Penal Code § 222.1 Comment at p. 70 (Tentative Draft No. 11, April 27, 1960). Clearly, as this record shows, under the Commonwealth’s theory of “renewed” flight, there can be no “realistic boundaries” and no “later distinct occasions.”

Whether the time and events between the alleged robbery and the alleged homicide are characterized as having “broken the chain” under the standard of Commonwealth v. Kichline, supra, or whether the alleged homicide is viewed as not having occurred during a period of “fresh pursuit” by analogy to the modern formulation of flight after a theft, it must be concluded that the trial court properly refused to allow use of evidence of the alleged robbery of March 20, 1980, as proof that the death the next day was a felony-murder. The court’s order is, therefore, affirmed.

Order affirmed.


author: CERCONE, Judge:

text:
    484 A.2d 192
    Georgia PARSONS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INS. CO.
    Superior Court of Pennsylvania.
    Argued June 7, 1984.
    Filed Nov. 16, 1984.

      Marshall E. Kresman, Philadelphia, for appellant.
    Frederick E. Smith, Jr., Philadelphia, for appellee.
    Before McEWEN, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This appeal arises from an order denying plaintiff-appellant’s petition for the appointment of arbitrators to decide an uninsured motorist claim. We affirm.

The facts in this case are undisputed. On January 6, 1979, appellant was a passenger in a vehicle owned and operated by George Peterson, who was insured by State Farm Mutual Insurance Company (State Farm). That automobile was involved in an accident with another vehicle operated by Richard Spencer, who was insured by Safeguard Mutual Insurance Company (Safeguard). Safeguard was subsequently declared insolvent and dissolved. Richard Spencer, however, was driving a vehicle owned by his mother, Lue Eva Spencer, with her permission. That vehicle was insured by State Farm.

After the accident, appellant submitted a liability claim against State Farm under the Spencer policy. Because appellant declined to sign a release unless it preserved an uninsured motorist claim, State Farm paid the $15,000.00 limits of the Spencer policy into the lower court. Appellant then presented a claim for uninsured motorist coverage to State Farm under the Peterson policy. When State Farm refused to pay any uninsured benefits appellant filed a petition to appoint arbitrators. The court below denied the petition and this appeal followed.

Appellant’s contention that she is entitled to uninsured motorist benefits under Peterson’s policy with State Farm is based on the following definition of an uninsured motor vehicle in the State Farm policy:

a land motor vehicle with respect to the ownership, maintenance or use of which there is in at least the amounts specified by the financial responsibility law of the state in which the described motor vehicle is principally garaged, no bodily injury liability bond or insurance policy applicable of the time of the accident with respect to any person or organization legally responsible for the use of such vehicle, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies that there is any coverage thereunder or is or becomes insolvent ... (emphasis added).

Appellant argues that since Richard Spencer was insured by Safeguard, which became insolvent subsequent to the accident, she can claim under the above uninsured motorist provision. The difficulty with this argument is that it ignores the fact that the policy further states that “the term uninsured motor vehicle shall not include: (1) a vehicle defined herein as an insured motor vehicle ...” An insured motor vehicle is in turn defined as:

an owned motor vehicle provided the use thereof is by such first named insured or resident spouse or any other person to whom such first named insured or resident spouse has given permission to use such vehicle if they are within the scope of such permission ... (emphasis added).

Since it is uncontroverted that Richard Spencer was operating his mother’s insured vehicle within the scope of his permission from her, it follows that no uninsured vehicle was involved in the accident notwithstanding the subsequent insolvency of his own carrier. In short, under the terms of the uninsured motorist policy at issue, the offending vehicle was not uninsured and, therefore, appellant may not recover under that policy. See generally, Widiss, A Guide to Uninsured Motorist Coverage § 2.31 (1981 Supp.).

In addition, the statute requiring uninsured motorist coverage, Act of August 14, 1963, P.L. 909, as amended, 40 P.S. § 2000(a), provides, in pertinent part, that its coverage is “for the protection of persons ... who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom[.]” (Emphasis added). We construe this language to mean that if either the owner or operator of the offending vehicle has insurance applicable to the accident, then the vehicle may not be deemed uninsured.

In sum, neither the uninsured motorist policy at issue nor the statute mandating uninsured motorist coverage supports appellant’s position.

Order affirmed.

       We refer of course to insurance which satisfies the statutory minimum amount.


author: POPOVICH, Judge:

text:
    484 A.2d 406
    COMMONWEALTH of Pennsylvania v. Ronald F. FORD a/k/a Harold F. Ford, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1984.
    Filed Nov. 9, 1984.

      Judith A. Calkin, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and ROBERTS, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Dauphin County by Ronald F. Ford, appellant, which denied appellant relief under the Post Conviction Hearing Act without a hearing. On January 13, 1974, appellant pled guilty to two counts of robbery pursuant to a plea agreement. He was immediately sentenced to two terms of not less than four and one-half years nor more than ten years to run concurrently to be computed from the date of his arrest. (S.T. at 6) Post-verdict motions were not filed nor was a direct appeal perfected. We reverse the order of the lower court and remand for an evidentiary hearing.

Appellant asserts four claims: (1) his guilty plea was not knowing, intelligent and voluntary, (2) he was improperly sentenced because the record reflects the incorrect date of his arrest; (3) he was denied effective assistance of counsel because counsel failed to assert appellant’s speedy trial rights and (4) he was denied effective assistance of counsel in that counsel advised and thereby induced him to plead guilty on the promise of a far lesser sentence than that which appellant received.

The lower court found these claims to have been waived because of the lengthy delay in filing a petition under the Post Conviction Hearing Act; and the Commonwealth erroneously asserts that this court is bound to evaluate the delay and the reasons therefor before assessing the merits of appellant’s contentions. A delay, however, is merely one factor to be included in the overall assessment of the merits of the claims raised. Commonwealth v. Gray, 317 Pa.Super. 248, 463 A.2d 1179 (1983), Commonwealth v. Bolding, 315 Pa.Super. 444, 462 A.2d 278 (1983), Commonwealth v. Courts, 315 Pa.Super. 124, 461 A.2d 828 (1983), Commonwealth v. Courts, 315 Pa.Super. 108, 461 A.2d 820 (1983), Commonwealth v. Kale, 312 Pa.Super. 69, 458 A.2d 239 (1983), Commonwealth v. Strickland, 306 Pa.Super. 516, 452 A.2d 844 (1983).

The Act states

§ 9549. Hearing on petition
(a) When required. — If a petition alleges facts that, if proven, would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer.
(b) When not required. — The court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.

With respect to appellant’s claim that his plea was not knowing and voluntary, we observe that he has failed to raise this issue in the context of ineffectiveness which would have precluded waiver. Commonwealth v. Bolding, supra, Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975). However, at the sentencing proceeding, appellant was never informed of his right to file post-verdict motions or a petition to withdraw his guilty plea, which was the proper method to attack its validity. Commonwealth v. Zakrzewski, supra. Therefore, we are precluded from finding conclusive waiver. Commonwealth v. Brandon, 485 Pa. 215, 401 A.2d 735 (1971), Commonwealth v. Arndt, 269 Pa.Super. 578, 410 A.2d 852 (1979), Commonwealth v. Phillips, 264 Pa.Super. 174, 399 A.2d 723 (1979).

In borderline cases, a petition should be given “every conceivable legitimate benefit” in favor of the grant of a hearing. Commonwealth v. Reider, 267 Pa.Super. 359, 406 A.2d 1081 (1979). If the reviewing court cannot tell from the record whether petitioner’s claims are frivolous and without support, it is necessary to remand for an evidentiary hearing. Commonwealth v. Gray, supra, Commonwealth v. Swift, 299 Pa.Super. 77, 445 A.2d 156 (1982). Even where we have a record of the plea colloquy, we have recognized petitioner’s right to present additional evidence where the record did not clearly refute his claim. Commonwealth v. Rusinko, 303 Pa.Super. 216, 449 A.2d 656 (1982). The determination of whether a plea was knowing and voluntary is a factual matter to be resolved by the trial court. Commonwealth v. Johnson, 460 Pa. 303, 333 A.2d 739 (1979).

Moreover, the record is unclear with respect to the date of appellant’s arrest and whether his sentence was properly computed. Appellant’s claim that ineffectiveness of counsel caused a waiver of his speedy trial rights cannot be deemed patently frivolous, and a reasonable basis for counsel’s actions is properly cognizable in an evidentiary proceeding below. Although Rule 1100 was not promulgated until after appellant’s sentence was imposed, “[i]n all criminal prosecutions the accused hath a right to ... a speedy public trial.” Art. I, § 9 Pennsylvania Constitution, see Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). Before the legislative enactment of Rule 1100,

minimum standards applicable to Pennsylvania were contained in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) in which the court applied a balancing test.

We, therefore, remand for an evidentiary hearing on any claims raised by appellant not waived or finally litigated.

Order reversed and remanded. Jurisdiction relinquished.

      . Act of May 13, 1982, P.L. 417, No. 122, § 2, 42 Pa.C.S.A. § 9541, et seq.

        . Appellant claims, inter alia, that he was denied his right to allocution; the record appears to support this contention.

      . Appellant was sentenced to four and one-half years from May 23, 1974. The judge was apparently attempting to sentence appellant so that appellant’s sentence would run from the date of his arrest. The only evidence before us relating to the date of the arrest is the prosecuting officer’s statement that the arrest occurred on May 23, 1973. Failure to file a motion to modify when appellant was never apprised of his right to do so precludes waiver. Commonwealth v. Moore, 307 Pa.Super. 560, 453 A.2d 1029 (1982), Commonwealth v. Walker, 298 Pa.Super. 387, 444 A.2d 1228 (1982). Moreover, where a sentence is claimed to be illegal, an appellate court should review such contention on its merits. Commonwealth v. Mathis, 317 Pa.Super. 362, 464 A.2d 362 (1983); Devillars v. Commonwealth, 61 Pa.Comwlth. 274, 433 A.2d 604 (1981), Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983). Where a correction of the judgment of sentence is required, this court may either remand for resen-tencing or amend the sentence directly. Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980).

      . Claims of ineffectiveness are before the court where raised at the first available opportunity. Commonwealth v. Carroll, 306 Pa.Super. 152, 452 A.2d 260 (1982).


author: DEL SOLE, Judge:

text:
    484 A.2d 409
    COMMONWEALTH of Pennsylvania v. Thomas JENNINGS, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 1, 1984.
    Filed Nov. 9, 1984.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

      James E. Blackwood, Assistant District Attorney, Erie, for Com., appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Appellant, in separate jury trials, was twice found guilty of theft by unlawful taking. Post-trial motions were filed and denied. He consolidates issues for this appeal, raising three questions:

1. Did the trial court abuse its discretion in allowing the introduction of prior crimes evidence to impeach the Appellant’s credibility?
2. Was counsel ineffective in not requesting curative instructions when the prosecutor stated in summation that Appellant had lied?
3. Was trial counsel ineffective where he failed to request a poll of the jury prior to the recording of the verdict?

The factual background is that on September 2, 1982, Officer Hale of the Millcreek Police Department was approached by the Appellant. After being told his Miranda rights, Appellant revealed to the officer that he knew about a theft of two homemade speakers, showing where and from what type of vehicle the theft had occurred. The owner later identified the speakers. Appellant testified that he told the officer that a former roommate had committed the crime.

Officer Figaski, also of the Millcreek Police Department, testified that he conversed with Appellant on July 27, 1982, and Appellant led him to a creekbed and recovered a plastic bag containing, among other things, a CB radio. Police discovered that the radio belonged to the same individual who had had the speakers stolen. The radio, however, was found missing sometime after the speakers were taken. Appellant testified that he told the officer that his ex-roommate was also responsible for this crime. Both officers testified that Appellant took credit for the commission of the crimes.

In both trials, the Commonwealth introduced, over objection, evidence of Appellant’s four burglary convictions of the previous year. Appellant argues that because his own testimony was his entire defense, such evidence should not have been permitted. We agree, and accordingly grant new trials.

Although the Commonwealth is permitted to introduce prior crimes evidence at trial to attack defendant’s credibility, Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961), such evidence is not per se admissible and “[w]here the defendant has no other means by which to defend himself, it would be particularly unjust to subject him to the introduction of prior convictions. Or, where the prior conviction is not critically important to the Commonwealth’s case — e.g. where other adequate means of attacking the defendant’s credibility are available — exclusion of prior convictions is strongly indicated.” Commonwealth v. Bighum, 452 Pa. 554, 567, 307 A.2d 255 (1973). Under Bighum, only crimes involving false statements or dishonesty may be used to impeach the defendant’s credibility. Commonwealth v. Bighum, 252 Pa. at 566, 307 A.2d at 262.

In Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), the Pennsylvania Supreme Court developed a balancing approach to determine the admissibility of prior crimes evidence.

The trial court should consider: (1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant witness; (2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than to provide a legitimate reason for discrediting him as an untruthful person; (3) the age and circumstances of the defendant; (4) the strength of the prosecution’s case and the prosecutions’ need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and (5) the existence of alternative means of attacking the defendant's credibility. Commonwealth v. Roots, 482 Pa. at 39-40, 393 A.2d at 367.

The trial court in this case, after considering the above factors, determined that the evidence was admissible. However, the decision was made subsequent to the Appellant’s testifying on his own behalf. In Commonwealth v. Hill, 302 Pa.Super. 377, 448 A.2d 1090 (1982), this Court said:

When the admissibility of prior convictions is an issue, the court must conduct an in camera Bighum hearing prior to the commencement of trial. Once the court has determined the admissibility of prior convictions before trial, a defendant can more intelligently weigh his or her decision to testify at trial. Commonwealth v. Hill, 302 Pa.Super. at 382, 448 A.2d at 1093.

In this case, there was a determination of admissibility made while the jury was at recess, but the decision was not made prior to trial. It is unclear from the record whether Appellant’s counsel was aware that the Commonwealth had intended to introduce the evidence. When the Commonwealth made the effort to introduce the evidence before closing its case, defense counsel objected and stated that the evidence should be left out based on the fact that no pretrial Bighum hearing was held and that the Roots decision, at any rate, would preclude its admission. Appellant argues that his counsel was ineffective in not filing a motion prohibiting the introduction of evidence. His counsel, however, objected to the admission at both trials. Because it is not clear from the record whether the Commonwealth had intended to introduce this evidence at the commencement of trial or whether it was not anticipated by the defense, therefore, we cannot say that counsel's representation was ineffective for objecting at the time of introduction of the evidence.

Although four burglary convictions are highly probative of Appellant’s veracity as a witness, Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976), and those convictions were recent and highly relevant, Commonwealth v. Green, 477 Pa. 170, 383 A.2d 877 (1978), the crimes of burglary and theft by unlawful taking involve similar basic elements. We are convinced, therefore, that a jury would take the evidence to mean that because Appellant was convicted of the prior crimes it is likely that he committed the present one. In Commonwealth v. Williams, 273 Pa. Super. 389, 417 A.2d 704 (1980), the court remanded for a new trial where evidence was admitted in a trial for robbery of ten-year-old convictions for the same offense. The defendant in that case offered only his own testimony to clear himself. Similarly, the Appellant had no other witnesses to speak on his behalf.

This is not the case where defendant presented a defense through other alibi witnesses’ testimony as well as his own, such as in Commonwealth v. Hutchinson, 290 Pa.Super. 254, 434 A.2d 740 (1981). We have a situation basically similar to that in Commonwealth v. Sampson, 250 Pa.Super. 157, 378 A.2d 874 (1977), where the defendant’s only possible defense was to take the stand and offer his own account. This court ruled that the admission of the evidence sufficiently prejudiced the defendant and was an abuse of discretion.

In another case, no error was found in introducing the crimes evidence because the convictions were recent, defendant was convicted as an adult and at the present trial had two other alibi witnesses to discredit one Commonwealth witness. The court took special note that the record did not reveal any other alternative in impeaching the defendant’s credibility, Commonwealth v. Herman, 271 Pa.Super. 145, 412 A.2d 617 (1979). After a thorough reading of the record here, however, it is evident that the Commonwealth made use of another method of impeachment — inconsistencies in statements made at trial by the Appellant.

It is the cumulative effect of several factors in this case which leads to the conclusion that the trial court abused its discretion in allowing the evidence into trial. First, there was no in camera Bighum hearing prior to trial to determine admissibility. Defendant’s meaningful choice as to whether or not to testify for himself was effectively denied. Second, the past and present crimes involve certain similar elements so that it would be unfair to hold that this evidence would tend to illustrate that the Appellant was untruthful rather than demonstrating his propensity to commit this type of crime. Third, Appellant was the sole witness for the defense, while the Commonwealth in both cases presented both the victim’s and a police officer’s testimony. Fourth, the Commonwealth made effective use of another means of impeaching the Appellant’s credibility.

Because we remand on this issue, we find it unnecessary to deal with the other issues Appellant raises.

The Judgment of Sentence is vacated and the cases are remanded for retrial.

Jurisdiction is relinquished.


author: OLSZEWSKI, Judge:

text:
    484 A.2d 768
    PHILADELPHIA ELECTRIC COMPANY, Appellant, v. AETNA CASUALTY & SURETY CO. and McCLOSKEY & COMPANY v. ALEXANDER & ALEXANDER and Harry J. Watson.
    Superior Court of Pennsylvania.
    Argued July 10, 1984.
    Filed Oct. 5, 1984.
    Reargument Denied Dec. 17, 1984.
    Petition for Allowance of Appeal Denied May 14, 1985.

      Joseph M. Donley, Philadelphia, for appellant.
    E. Chandler Hosmer, III, Philadelphia, for appellees.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   OPINION

OLSZEWSKI, Judge:

In this appeal we are called upon to determine whether the lower court erred in finding that the Philadelphia Electric Company’s (PECO’s) insurance claim was barred by its failure to properly notify its insurer, Aetna Casualty & Surety Company (Aetna), of the accident within a reasonable time. Since we have determined that Aetna was on notice of the accident shortly after its occurrence, we therefore reverse.

The rather long and complex factual background of the case reveals that in January of 1964, McCloskey & Corhpa-ny (McCloskey) entered into a contract with the Pennsylvania Department of Transportation (PennDot) to construct a certain segment of Interstate 1-95. Since a portion of the work to be performed involved PECO’s facilities, PennDot required as a condition precedent to the contract, that McCloskey obtain liability insurance for and on behalf of PECO.

In order to fulfill this necessary requirement, McCloskey approached its regular insurance carrier, Aetna, and purchased a policy in which it and PECO were designated as the named insureds.

Shortly after obtaining coverage, McCloskey began construction on the interstate. On May 13, 1966, Herman Love, an employee of McCloskey, was severly injured when his jackhammer struck an underground conduit owned by PECO. As a result of this mishap, Mr. Love promptly instituted a worker’s compensation claim with Aetna, McCloskey’s worker’s compensation carrier.

While this worker’s compensation action was pending, Mr. Love also filed a personal injury action against PECO for damages sustained from the same mishap. At that time, PECO, unaware of the existence of the McCloskey-Aetna policy, did not notify Aetna of its responsibility to assume the defense of the matter. However, PECO did join McCloskey as a third-party defendant claiming indemnity for any damages owed Mr. Love on account of the accident. McCloskey thereafter promptly notified Aetna to defend the matter in its behalf pursuant to the McCloskey-Aetna policy.

Shortly before the trial was set to commence, PECO’s claim department discovered that Aetna was responsible under the McCloskey-Aetna policy to defend the Love personal injury action in its behalf. In January, 1975, PECO therefore served a written notice requesting representation. Aetna refused to defend or accept any of the liability flowing from the accident, stating that PECO breached the insurance contract by failing to provide Aetna with timely notice of the accident.

In May of 1975, the Love trial was held after which judgment was entered solely against PECO in the amount of $250,000. Nearly two years later, PECO instituted an assumpsit action against Aetna alleging that Aetna breached its duty under the McCloskey-Aetna policy by not defending the Love matter on its behalf. PECO urged the court to order Aetna to indemnify it for the $250,000 Love judgment. The lower court, per Honorable Paul M. Chalfin, J., however refused PECO’s request on the theory that PECO’s late notice relieved Aetna of all responsibility under the policy. In his opinion, Judge Chalfin refused to find that Aetna was on constructive notice of the accident despite the fact that Aetna had participated in the third-party indemnity action against PECO. The court subsequently entered its findings and judgment in favor of Aetna and against PECO.

After exceptions were dismissed, this appeal followed in which PECO argues that the lower court erred in refusing to find Aetna in constructive notice of the accident when Aetna had in fact: (1) handled the McCloskey-Love worker’s compensation claim, and (2) been notified of the accident when it was called upon to represent McCloskey in the PECO-Love personal injury suit.

I.

At the outset, we note that past decisions have clearly upheld the validity of a provision in an insurance policy requiring written notice of an accident to be given “as soon as practicable”. See Meierdierck v. Miller, 394 Pa. 484, 147 A.2d 406 (1959). At one time, such provisions were strictly enforced by our courts and late notice automatically relieved the insurance company from its contractual responsibility, even when the late notice did not harm the insurance company in any way. Meierdierck v. Miller, supra.

However, that approach was rejected in Brakeman v. Potomac Insurance Co., 472 Pa. 66, 371 A.2d 193, 196 (1977), when our Supreme Court adopted a two-prong test under which late notice will only relieve an insurer from its duty if the insurer can establish by a preponderance of the evidence that: (1) it never received the required notice of the accident, and (2) as a result of this, its economic interests were unduly prejudiced.

In construing prong-one of Brakeman, our courts have never faced the issue of whether or not indirect notice is sufficient to alert a potentially liable insurer of its duty to defend a matter on behalf of its insured. However, this issue has been litigated and well documented in several other jurisdictions, with the general consensus being that notice of the accident need not come directly from the insured to effectively alert the insurer of its duty to defend. See Duggan v. Travelers Indemnity Company, 383 F.2d 871 (1st Cir.1967); Aetna Casualty & Surety Co. v. Samson, 471 F.Supp. 1041 (Colo.1979); Liberty Mutual Insurance Co. v. Haecker Industries, Inc., 326 F.Supp. 489 (1971); Gregory v. Highway Insurance Company, 24 Ill.App.2d 285, 164 N.E.2d 297 (1960); Sinclair Oil Company v. New Hampshire Insurance Company, 107 R.I. 469, 268 A.2d 281 (1970); Helvy v. Inland Mutual Insurance Company, 148 W.Va. 51, 132 S.E.2d 912 (1963).

Inherent throughout these opinions is the common thread that the requirement of notice will be satisfied as long as the insured is reasonably alerted, either directly or indirectly, of the accident prior to the pendency of the suit. Sinclair Oil Company v. New Hampshire Insurance Company, supra, (test is whether liability insurer was sufficiently informed of the occurrence of the accident within a reasonable time depending on the circumstances of each particular case); see also Gregory v. Highway Insurance Co., supra, (it does not matter who gives the notice as long as notice is given of the occurrence of the accident or the pendency of the suit.)

With the two-prong test of Brakeman and the above principles in mind, we must now determine whether the lower court erred in concluding that Aetna was not directly or indirectly informed of the accident within a reasonable time of its occurrence.

Turning our attention to the pertinent notice provision in the policy, we see that it was rather ambiguous on the issue of whom was responsible for notifying Aetna of an accident. In this respect, the policy merely stated that “... written notice shall be given by or on behalf of the insured ... as soon as practicable.” (Emphasis added.) We believe the parties intended the phrase “or on behalf of the insured” to mean that notice of the accident from “any reliable source” is all that was required to trigger Aetna’s responsibility under the policy.

Since we have determined that notice from any reliable source would be sufficient we must now determine whether Aetna was in fact notified of the Love accident by a reliable source.

In this respect, the record reveals that Aetna first became aware of the accident as early as May of 1966 when it represented McCloskey in the worker’s compensation claim. This claim, which arose out of the same mishap as the present controversy, would seem to be sufficient to notify Aetna of the accident and its impending duty to PECO. However, as the lower courts opinion correctly points out, the investigation conducted by Aetna pursuant to that claim was materially different from the type of investigation Aetna would have conducted in preparation for this personal liability defense. Therefore, we cannot say that this worker’s compensation claim, in and of itself, alerted Aetna of its potential responsibility.

A further examination of the record reveals, however, that in November of 1966, Aetna was again alerted to the circumstances surrounding Mr. Love’s accident when it was joined by McCloskey to defend a third-party indemnity claim by PECO, in the personal injury suit instituted by Mr. Love. In defending McCloskey in this action, Aetna was confronted with the same policy under which PECO had also been designated as one of the named beneficiaries. Furthermore, the notice McCloskey provided Aetna included a rather detailed explanation of PECO’s involvement in the matter.

We are convinced that McCloskey’s notice of the accident, in combination with the notice Aetna received under the worker’s compensation claim, were sufficient to notify Aetna of its responsibility to defend PECO in the personal injury action. We therefore hold that Aetna has not met its burden of establishing that PECO breached the notice provision contained within the McCloskey-Aetna policy and the lower court erred in so holding.

II.

Before concluding, we just want to emphasize that we are not unmindful of the economic hardship our present holding might have upon the interests of Aetna. At the same time, however, we are also reluctant to allow an insurer to refuse to provide that which it has been fully paid for unless it is perfectly clear that it was not given actual or constructive notice of the claim confronting it.

Since we have concluded from the rather unique factual situation presented that Aetna was indirectly notified of its duty to defend PECO in the personal injury action, we therefore hold that the lower court erred in finding PECO in breach of the notice provision of the policy.

Accordingly, we must now reverse the order entered below.

Order reversed.

WIEAND, J., concurs in the result.

      . The pertinent notice provision we must now construe provided: "Notice of Accident — when an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable." (Emphasis added.)

      . McCloskey purchased a manufacturer’s and contractor’s liability policy insuring PECO, among other things, against all losses PECO might incur during the policy period up to a limit of $500,000 for all damages arising out of bodily injury to any one person. This policy also provided coverage for McCloskey for injuries that may have arisen throughout the period of construction.

      . The lower court also refused to hold that Mr. Love’s worker's compensation claim was sufficient to notify Aetna of its responsibility to defend PECO. It is important to note that both actions Aetna was called upon to defend on behalf of McCloskey arose out of same jackhammer tragedy which formed the basis of this appeal.

      . Indeed, our own courts have held that it is immaterial under an automobile liability insurance policy, whether the named insured, an additional insured, or any other person involved, notifies the insurance company of the accident. See Bethlehem Steel Company v. Continental Casualty Co., 208 F.Supp. 354 (1958); Frank v. Nash, 166 Pa.Super. 476, 71 A.2d 835 (1950); Morris v. Bender, 317 Pa. 533, 177 A. 776 (1935). We find the logic in these cases quite persuasive.

      . While we recognize the factual difference between these cases and that before us, we deem the thrust of these cases — that notice from sources other than the insured will suffice — as consistent with our stand here.

      . Our research has also revealed that most courts are moving to the position that substantial compliance with notice requirements is all that is required to reasonably put the insurer on notice of an accident. See Moss v. Cincinnati Ins. Co., 154 Ga.App. 165, 268 S.E.2d 676 (1980); Hanover Ins. Co. v. Hagler, 532 S.W.2d 136 (Tex.Civ.App.1975); Fishel v. Yorktowne Mutual Ins. Co., 254 Pa.Super. 136, 385 A.2d 562 (1978).

      . Our power to construe any ambiguities or inconsistencies against the drafter of a policy is unquestionable. See Filaseta v. Pennsylvania T & FM Insurance Company, 209 Pa.Super. 322, 228 A.2d 18 (1967). Here, Aetna drafted the notice of accident provision. We have therefore construed any ambiguities against it.

      . Since McCloskey purchased the policy in which PECO was one of the named insureds, we also believe that it was a "reliable source" who could adequately provide notice of the accident on behalf of PECO.

      . We are fully aware that notice under a worker's compensation claim is not, in and of itself, sufficient to provide adequate notice under a liability policy in a case such as this. However, our instant holding is not premised entirely on the notice Aetna received under the worker's compensation claim. Rather, we have determined that the notice Aetna received by way of the PECO-Love personal injury suit, together with the worker’s compensation notice, are sufficient when combined to demonstrate that reasonable notice of the accident was clearly afforded.

      . Our instant holding makes it unnecessary to determine whether Aetna also met its burden of proving that it was unduly prejudiced by the lack of adequate notice.

      . We want to emphasize that our instant decision should not be construed too broadly. We do not in any manner mean to suggest that constructive notice will be found in all future cases. Rather, the determination of whether an insurer was indirectly notified of an accident must, as here, be determined on a case by case approach, taking into consideration the particular factual situation presented by the respective parties.


author: HESTER, Judge:

text:
    484 A.2d 773
    David BINDERNAGEL, Appellant, v. NATIONWIDE MUTUAL AUTOMOBILE INSURANCE COMPANY, INC., A Corporation.
    Superior Court of Pennsylvania.
    Argued May 17, 1984.
    Filed Oct. 5, 1984.
    Reargument Denied Dec. 17, 1984.

      Karl W. Wiedt, III, Pittsburgh, for appellant.
    Timothy D. Appelbe, Pittsburgh, for appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   OPINION

HESTER, Judge:

On January 27, 1982, appellant, David Bindernagel, filed a Complaint in Assumpsit against appellee, Nationwide Mutual Automobile Insurance Company, Inc., in the Court of Common Pleas of Allegheny County. Said suit was instituted to recover damages for injuries appellant allegedly sustained while operating his Suzuki trail bike on State Route 837 in Clairton, Pennsylvania. Appellant collided with a motor vehicle operated by Mary Toth.

Appellee provided automobile insurance for Janet Ober and James Ober of Washington County, Pennsylvania. Mrs. Ober was appellant’s mother, and he resided with her and Mr. Ober at the time of the accident, February 9, 1980. As a resident/relative of their household, appellant claims that he was insured under the no-fault automobile insurance policy issued by appellee.

Appellee filed preliminary objections in the nature of a demurrer to appellant’s complaint. Appellee contended that the Pennsylvania No-Fault Motor Vehicle Insurance Act does not provide benefits for those injured while operating motorcycles. Inasmuch as appellee equated “trail bikes” to “motorcycles”, it declined payment of no-fault benefits. The lower court agreed, granting the demurrer and dismissing appellant’s complaint by order dated April 29, 1982. This timely appeal followed.

“Basic loss benefits,” as defined in the No-fault Act, are payable to persons who incur loss pursuant to injuries resulting from the “maintenance or use of a motor vehicle.” They are not payable for losses “sustained by an operator or passenger of a motorcycle.” 40 P.S. § 1009.103.

The Pennsylvania “Vehicle Code” defines a motor vehicle as a “vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated upon rails.” 75 Pa.C.S.A. § 102. A motorcycle is defined as a “motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground.” Id. Appellant argues that “trail bikes” are not “motorcycles.” As a result, he maintains that injuries sustained by the operator of a trail bike do not belong to that category of losses incurred in the operation of a motorcycle for which basic loss benefits are denied. Instead, he contends that his injuries were sustained in the operation of a motor vehicle for which no-fault benefits are allowed.

We do not subscribe to appellant’s contrived argument. Whether a trail bike constitutes a motorcycle is of no importance. We are not concerned with the possibility that a trail bike does not belong to a particular class of vehicles, the operation of which does not lead to injuries compensable under the No-fault Act. Injuries sustained in the operation of a motorcycle comprise a class specially set aside as ineligible for benefits. It is not the sole class, however, for which benefits are denied. Injuries sustained in the operation of additional vehicles which do not generally qualify as “motor vehicles” are also not compensable under the Act. Therefore, the precise issue for adjudication is whether a trail bike is a “motor vehicle” under the No-fault Motor Vehicle Insurance Act.

This Court confronted this issue in Siefert v. Nationwide Insurance, 289 Pa.Super. 160, 432 A.2d 1101 (1981). Inasmuch as the No-fault Act defines a motor vehicle as a vehicle “required to be registered under the” Vehicle Code, 40 P.S. § 1009.103, the Siefert court first looked to registration requirements. The trail bike at issue was not among the specific exemptions to registration requirements; however, Siefert noted additional vehicles which were refused registration. In doing so, it found that the particular trail bike could not meet registration requirements; therefore, it was not a “motor vehicle.”

A similar issue confronted this Court with respect to dune buggies in Bills v. Nationwide Mutual Insurance Company, 317 Pa.Super. 188, 463 A.2d 1148 (1983). Bills considered factors in addition to those applied by Siefert in determining whether a particular dune buggy was a motor vehicle. The dune buggy at issue was not insured, inspected or licensed in Pennsylvania, and it was primarily operated on privately-owned fields with negligible contact with Commonwealth highways; hence, it was not a motor vehicle. The Bills court carefully noted that its holding was restricted to the particular dune buggy at issue. It did not decide “whether some other dune buggy, differently equipped or put to some other use, might fit within the ambit of the No-fault Act.” Id., 317 Pa.Superior Ct. at 195, 463 A.2d at 1152.

In determining first whether a snowmobile was a vehicle for purposes of basic loss benefits, this Court in Gallo v. J. C. Penney Casualty Insurance Company, 328 Pa.Super. 267, 476 A.2d 1322 (1984), considered whether the snowmobile was “a device, in, upon or by which persons or property may be transported upon a highway.” Id., 328 Pa.Superior Ct. at 273, 476 A.2d at 1325. Inasmuch as § 7722 of the “Vehicle Code” provided for the operation of snowmobiles on certain highways, the Gallo court concluded that snowmobiles constituted vehicles. Secondly, a snowmobile met the indicia of motor vehicles due to the fact that it was a self-propelled vehicle which was not exclusively operated on rails and was not powered by overhead wires. 75 Pa.C.S.A. § 102.

Although concluding that snowmobiles were motor vehicles under the “Vehicle Code”, the Gallo court found that their maintenance and use did not necessarily warrant coverage under the No-fault Act. Coverage is provided for snowmobiles “only when the accident occurs on a public road, street or highway, which has been designated and posted as a snowmobile road by the government agency having jurisdiction, and when the vehicle is registered and has the equipment mandated by statute.” Id., 328 Pa.Superior Ct. at 277, 476 A.2d at 1328.

In applying Siefert, Bills, and Gallo in pari materia, we must conclude that the trail bike as used here was not a motor vehicle. It is not necessary, as was done in Bills and Gallo, to decide further whether it was the type of motor vehicle for which coverage is provided under the No-fault Act. This trail bike did not satisfy the general motor vehicle registration requirement for being designed to operate on public highways. By definition, trail bikes are not registrable or operable on any Commonwealth highways. Therefore, the non-registrable status of this trail bike precludes its rise to motor vehicle status.

Accordingly, the order is affirmed.

      . Appellant complained of a fractured right femur which resulted in amputation above the knee, renal failure, spleen injuries, pneumonia, multiple fractures of both arms, multiple lacerations and internal injuries. These injuries allegedly resulted in extensive hospitalization, medical treatment, lost wages and rehabilitative care.

      . 40 P.S. § 1009.101 et seq.

      . “Basic loss benefits” include professional medical treatment and care, emergency health services, medical and vocational rehabilitation services, funeral expenses, work loss, replacement services loss, and survivors loss. 40 P.S. § 1009.202.

      . Every vehicle operated on Pennsylvania highways must be equipped with head lamps, rear lighting and audible warning device. The 1977 Honda trail bike in Siefert was not designed for operation on public highways because it was not equipped with these instruments.

      . With an insufficient record before it, the Gallo court was constrained to remand for an evidentiary hearing to determine the registration and equipment of the snowmobile along with the accident situs.


text:
    484 A.2d 775
    COMMONWEALTH of Pennsylvania v. Richard ALBERT, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 7, 1984.
    Filed Oct. 19, 1984.
    Reargument Denied Dec. 28, 1984. ..
    Petition for Allowance of Appeal Denied July 10, 1985.

      Wendell G. Freeland, Pittsburgh, for appellant.
    Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   OLSZEWSKI, Judge:

Appellant, Richard Albert, seeks review of an August 11, 1981 order which set aside his probation and sentenced him to two consecutive terms of imprisonment of not less than IIV2 nor more than 23 months. He has failed, however, to preserve the issues for appellate review.

The facts are not in dispute. On March 6, 1979, following appellant’s convictions at CC-7802533 and CC-7802528 for maintaining a lottery, the trial court entered judgments of sentence requiring appellant to pay fines totalling $20,000 and to serve periods of probation totalling fifteen years. Appellant was further ordered to pay the fines within thirty days. A timely appeal was filed. That appeal pending, this Court granted a supersedeas which stayed the execution of sentence. On March 25, 1979, Albert’s appeal was dismissed.

By notice dated July 30, 1981, the court informed Albert that a hearing would take place on August 6, 1981 “concerning the violation(s) of the defendant’s 5 year probation of CC-7802528 by reason of his failure to pay fines and costs as ordered by the court.” R. 17. Testimony was taken on August 6 and August 11, 1981 in compliance with the two-step procedure for probation violations outlined in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The trial court then entered orders revoking probation and sentencing appellant to consecutive terms of imprisonment with a combined total maximum of 46 months. It additionally ordered appellant to pay the outstanding fines totalling $20,000. The court did inform appellant that upon payment of either fine within the minimum period of imprisonment he would be eligible for parole on that count.

After sentencing, the trial court told appellant that he had “the right to appeal this sentence to the Superior Court of Pennsylvania upon filing motions with the Court within ten days.” R.61. Appellant failed to file post-sentencing motions.

Appellant here contends that the trial court committed reversible error when it revoked his probation and imprisoned him. He argues the “policy of the law of Pennsylvania [is] that indigents should not be imprisoned for failure to pay fines.” Appellant’s Brief at 9a. In the alternative, appellant challenges the trial court’s actions as an abuse of discretion.

The issues raised in this appeal have not been properly preserved for appellate review. Appellant’s counsel failed to object to the imposition of sentence at the time probation was revoked. He failed to file an appropriate motion to modify the sentence imposed. See Commonwealth v. Aldinger, 292 Pa.Super. 149, 436 A.2d 1196 (1981); Pa.R.Crim.P., Rule 1410, 42 Pa.C.S.A. Where a claim of error is not properly preserved for appellate review, we will not consider, as a rule, that claim on appeal. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Turecki, 278 Pa.Super. 511, 420 A.2d 658 (1980). Moreover, the record here shows that the appellant was advised of his right to file a motion to modify sentence.

“Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of the initial sentencing____” 42 Pa.C.S. § 9771. Appellant’s terms of probation totalled fifteen years. The court, revoking probation, imposed a sentence not to exceed 46 months. We find no error in that sentence.

Judgment of sentence affirmed.