author: HOFFMAN, Judge: MONTEMURO, Judge,

text:
    559 A.2d 579
    COMMONWEALTH of Pennsylvania v. Michael D. WALKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 31, 1988.
    Filed May 30, 1989.

      Deborah T. Lux, Assistant Public Defender, Bellefonte, for appellant.

      M. Eileen Tucker, Assistant District Attorney, Bellefonte, for Com.
    Before MONTEMURO, HOFFMAN and CERCONE, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for rape, involuntary deviate sexual intercourse, indecent assault, recklessly endangering another person, unlawful restraint, and simple assault. Appellant raises a number of issues concerning the trial court’s limiting his cross-examination of the complainant. Specifically, appellant contends that the trial court erred in refusing to allow him to (1) question the complainant concerning her prior sexual conduct; (2) question the complainant with regard to the fact that (a) she was on probation and parole and (b) there were other charges pending against her; and (3) impeach the complainant’s credibility based on her prior conviction for criminal trespass. For the reasons that follow, we vacate the judgment of sentence and remand for a new trial.

On August 24, 1987, a jury found appellant guilty of the above-referenced charges. Post verdict motions were timely filed and denied, and, on February 9, 1988, appellant was sentenced to concurrent five-to-fifteen-year terms of imprisonment for rape and involuntary deviate sexual intercourse. The court determined that the remaining charges merged for sentencing purposes. Appellant’s motion to modify sentence was timely filed and denied, and this appeal followed.

Appellant asserts nine claims of error, but because of our disposition of this appeal, we address only his claims regarding the court’s restricting his cross-examination of the complainant. Appellant first argues that the trial court erred in refusing to allow him to question the complainant concerning her prior sexual conduct. Appellant claims that Pennsylvania’s Rape Shield Law, see 18 Pa.C. S.A. § 3104, does not bar the admission of this evidence because it was offered not to attack the complainant’s chastity but to explain the presence of objective signs of sexual intercourse. After carefully reviewing the record and appellant’s brief, we conclude that the trial court has properly disposed of this contention in its opinion. Accordingly, we affirm the disposition of this issue on the basis of that opinion.

Appellant next argues that the trial court erred in refusing to allow him to question the complainant with regard to the fact that (1) she was on probation and parole and (2) there were charges pending against her at the time of trial. Appellant maintains that this evidence was admissible to show the complainant’s potential bias. In Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), our Supreme Court articulated the standard to be applied when a criminal defendant seeks to cross-examine a prosecution witness about his or her criminal record in order to show motive or bias. The Court held that:

whenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.
The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise some doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury’s determination of the case.

Id., 511 Pa. at 224-25, 512 A.2d at 631-32 (footnote omitted). See also Commonwealth v. Cauto, 369 Pa.Super. 381, 387-88, 535 A.2d 602, 605 (1987). The possibility of motive or bias, of course, must be more than mere speculation. Commonwealth v. Gay, 369 Pa.Super. 340, 343, 535 A.2d 189, 190 (1988). “There must be a logical connection between the facts to be proven and the inference to be drawn from the facts.” Id. (citations omitted).

After carefully reviewing the record, we agree with appellant that the evidence that he sought to introduce would have supported an inference that the complainant was biased. First, we note that, as a condition of the complainant’s probation and parole, she was required to refrain from using alcohol and drugs. At trial, however, the complainant admitted that she had consumed twelve or thirteen beers and had taken pills on the night of the alleged rape. N.T. August 21, 1987, at 65, 67, 71-75. The complainant’s actions were in direct violation of her probation and parole. Based on these facts, the complainant may have testified for the Commonwealth in the hope that she could avoid an action to revoke her probation or parole. Similarly, the fact that charges were pending against the complainant would support an inference that she was biased. The complainant had been arrested and charged with disorderly conduct one week before appellant’s trial. As a result of that arrest, she was also charged with violating her probation and parole. Based on these facts, the complainant may have testified in the hope that she could curry favor with the Commonwealth with regard to both the pending charge, and the probation violation charge. In summary, because the proffered evidence was relevant to establishing that the complainant may have been biased, we must conclude that the trial court erred in refusing to allow the evidence. See Commonwealth v. Evans, supra; Commonwealth v. Cauto, supra; Commonwealth v. Gay, supra.

Appellant also argues that the trial court erred in refusing to allow him to impeach the complainant’s credibility based on her prior conviction for criminal trespass. Appellant maintains that this conviction was admissible because criminal trespass involves an element of deceit. We agree. It is settled that a witness may be impeached on the basis of past convictions, as long as the convictions involve crimes of dishonesty or false statement (crimen falsi), and the date of conviction or the last day of confinement is within ten years of the trial date. See Commonwealth v. Randall, 515 Pa. 410, 412, 528 A.2d 1326, 1329 (1987); see also Commonwealth v. Yost, 478 Pa. 327, 334-35, 386 A.2d 956, 960 (1978).

The complainant’s criminal trespass conviction occurred on January 12, 1986; thus, the question we must determine is whether this offense is in the nature of crimen falsi. Although our research has revealed no Pennsylvania case which has decided this issue, we have no difficulty in resolving the question. The crime of criminal trespass involves either entering or remaining in a place, while knowing that one is not licensed or privileged to do so. See 18 Pa.C.S.A. § 3503. Because the offense involves the commission of an act that the offender knows he or she is not licensed or privileged to do, it reflects adversely on the offender’s honesty. Moreover, we note that criminal trespass is similar to burglary, see 18 Pa.C.S.A. § 3502, which this Commonwealth has long recognized as a crime that involves dishonesty. See Commonwealth v. Amos, 445 Pa. 297, 306 & n. 3, 284 A.2d 748, 752 & n. 3 (1971); see also Commonwealth v. Nenninger, 359 Pa.Super. 444, 519 A.2d 433 (1986). Accordingly, we conclude that criminal trespass is an offense in the nature of crimen falsi, and thus the trial court should have allowed appellant to impeach the complainant with her 1986 conviction. See Commonwealth v. Randall, supra.

Finally, we note that the court’s errors in limiting appellant’s cross-examination of the complainant clearly were not harmless. The complainant was the sole Commonwealth witness who could testify as to the circumstances of the alleged rape. Because the complainant’s testimony was the crucial link in the proof of appellant’s act, the accuracy and truthfulness of her testimony were critical elements in the Commonwealth’s case. In these circumstances, we cannot conclude that it was harmless to disallow evidence suggesting that the complainant was biased, or that she was not a credible witness. See Commonwealth v. Gay, 369 Pa.Super. at 344-45, 535 A.2d at 191; see also Commonwealth v. Evans, supra; Commonwealth v. Cauto, supra. Accordingly, this case must be remanded for a new trial.

For the foregoing reasons, we vacate the judgment of senténce and remand for a new trial.

Vacated and remanded. Jurisdiction relinquished.

CERCONE, J., concurs in the result of the opinion by HOFFMAN, J.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

Although I concur in the ultimate result reached by the majority in this case, i.e., the grant of a new trial, I dissent with regard to the determination of the second issue.

I agree with the legal principles cited by the majority concerning the appellant’s right, when cross-examining a prosecution witness, to admit evidence of bias. However, I disagree with the majority’s conclusion that the evidence which the appellant seeks to admit supports the inference of bias on the part of the victim. It is the majority’s position that the victim may have testified for the Commonwealth in the hope that she could avoid an action to revoke her probation/parole. If this were the classic bias situation in which an individual, who is facing criminal prosecution, offers to testify against a criminal defendant, whom the Commonwealth is prosecuting in order to gain favorable treatment or in the hopes of receiving favorable treatment, I would have no trouble finding an inference of bias. However, the facts of the instant case clearly distinguish it from the classic bias situation in two distinct ways. First, the prosecution witness in the instant case is the victim. Unlike a third party prosecution witness, whose sole reason for testifying is the lure of favorable treatment from the Commonwealth on pending charges, the victim is an interested party. She was the target of the crime. Furthermore, she has the power to initiate or preclude charges from being brought against the appellant. This is an important difference. If the complainant wanted to insure that her probation/parole would not be revoked, all she had to do was not report the rape. The sole reason the violation surfaces is because she reported the rape. If anything, the evidence of the complainant’s probation/parole violation strengthens the complainant’s testimony. Here is a woman who immediately after being raped reports it even though she knows that she has violated her probation/parole and the violation will be exposed once the rape is reported. I fail to see how the violation of her probation/parole creates bias. In order to bring this case within the outer reaches of a true bias situation, the facts would have to be altered so as to reflect a report of the rape after the probation/parole violation is discovered. Unlike the classic biased prosecution witness, the victim under the unaltered facts of the instant case receives no benefit at the time she reports the crime, for her misconduct has yet to be discovered. This brings me to the second point I wish to make. Unlike the third party prosecution witness, whose illegal conduct has placed him in his predicament, the victim’s conduct in the instant case is a technical violation. Such technical violations are handled by the Board of Probation and Parole. Since such matters are dealt with by the Board of Probation and Parole, the Commonwealth is not in a position to promise leniency. Therefore, the motivation to report the rape to the police and to testify for the Commonwealth, which is necessary to support the inference of bias, does not arise from the hope that favorable treatment will be extended by the District Attorney’s Office, because the District Attorney’s Office has no ultimate control over the decisions of the Probation and Parole Board. For these reasons, I would affirm the trial court’s actions in denying the admission of this evidence.

Likewise, I disagree with the majority’s position that the victim may have testified for the Commonwealth in the hope that she could curry favor with the Commonwealth with regard to the pending disorderly conduct charge. The flaw in this supposition becomes apparent when the events are placed in there proper time frame. The rape occurred on June 2, 1987 and was immediately reported by the victim. Two weeks later, the victim testified against the appellant at his preliminary hearing. A week before the trial, the victim was charged with disorderly conduct. In that the victim’s trial testimony did not substantially differ from that which she gave at the preliminary hearing, I fail to see how the disorderly conduct charge creates bias. For surely the disorderly conduct charge comes too late in time to influence the victim’s preliminary hearing testimony. Therefore, I would affirm the action of the trial court in denying the admission of this evidence. Neither the parole violation evidence, nor the disorderly conduct evidence, supports an inference of bias such as to warrant the grant of a new trial.

For these reasons, I would vacate the sentence and remand for retrial. However, unlike the majority, I would hold that the evidence of the victim’s probation violation and disorderly conduct charge is inadmissible.

      . Appellant’s other claims are that the trial court erred in (1) admitting into evidence a towel seized from his car; (2) admitting into evidence photographs of the complainant’s facial injuries; (3) denying his motion for a mistrial after a Commonwealth witness spoke with jurors during a recess; (4) denying his challenge to the constitutionality of the Rape Shield Law; (5) denying his challenge to the constitutionality of 18 Pa.C.S.A. § 3106 (concerning testimony of complainants); and (6) imposing an excessive sentence.

      . We note that, prior to trial, appellant filed a written motion and offer of proof concerning this evidence, as is required by the Rape Shield Law. See 18 Pa.C.S.A. § 3104.

      . If the conviction is more than ten years old, it may be admitted only if the court determines that the value of the evidence substantially outweighs its prejudicial effect. Commonwealth v. Randall, supra.

        . We note that, in his dissenting opinion in Commonwealth v. Cobb, 258 Pa.Super. 91, 392 A.2d 698 (1978), Judge VAN DER VOORT stated the view that criminal trespass convictions which involve either entry by "subterfuge” or "surreptitious” entry “clearly impl[y] dishonest conduct” and should be admissible for impeachment purposes. Id., 258 Pa.Superior Ct. at 96-96, 392 A.2d at 701 (VAN DER VOORT, J., joined by PRICE, J., dissenting).

      . Section 3503 provides in relevant part:
      § 3503. Criminal trespass
      (a) Buildings and occupied structures.—
      (1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:
      (i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or
      (ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.
      ******
      (b) Defiant trespasser.—
      (1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
      (i) actual communication to the actor; or
      (ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
      (iii) fencing or other enclosure manifestly designed to exclude intruders.
      ******

        Id.

      . Section 3502 provides in relevant part:
      § 3502. Burglary
      (a) Offense defined. — A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
      ******

        Id.

      . We note also that this evidence would be particularly important to appellant’s defense because he had introduced independent evidence that called into question the complainant’s credibility. For example, the barmaid who served both appellant and the complainant on the night in question testified that, immediately after leaving the bar with appellant, the complainant "came back into the bar and whispered in my ear that if anything went wrong, that she was going to holler rape." N.T. August 24, 1987, at 6.

      . The record is unclear whether the complainant was facing revocation of her parole, probation, or both. In any event, the basis of the revocation was the fact that she had been drinking on the night of the rape.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    559 A.2d 584
    COMMONWEALTH of Pennsylvania, Appellant, v. Roland HART, Appellee.
    Superior Court of Pennsylvania.
    Argued April 11, 1989.
    Filed June 5, 1989.

      Linda Perkins, Assistant District Attorney, Philadelphia, for Com., appellant.
    Gwendolyn Bright, Assistant Public Defender, Philadelphia, for appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County granting appellee’s writ of certiorari and vacating his conviction for harassment by communication. On appeal, the Commonwealth argues that the evidence presented was sufficient to establish appellee’s guilt. For the foregoing reasons, we vacate the order of the trial court and reinstate the judgment of sentence.

On June 26, 1987, at approximately 7:30 a.m., Joseph Brock, President of Local 830 of the Teamsters Union, listened to four or five consecutive telephone calls from appellee. The calls had been recorded on the union’s answering machine located in its office in the City of Philadelphia. The messages consisted of appellee’s use of obscene language, coupled with threats to blow up the union headquarters. Appellee also specifically threatened to kill Mr. Sid Marrama, the secretary/treasurer for the union, his family, and union employees.

Appellee was tried in the Municipal Court of Philadelphia for the crimes of terroristic threats and harassment by communication. After a finding of guilt as to the harassment by communication charge, appellee was sentenced to fines and costs totaling $125.00. Appellee then filed a petition for a writ of certiorari in the Court of Common Pleas of Philadelphia County, alleging that the evidence was insufficient to support the guilty verdict. The court, without hearing argument, granted the writ and vacated appellee’s conviction. After unsuccessfully seeking reconsideration, the Commonwealth filed the instant appeal.

Appellant raises one issue for our review: whether sufficient evidence was introduced to support a finding of guilt for the crime of harassment by communication. The Commonwealth argues that the acts of appellee in making five consecutive phone calls to union headquarters and threatening to blow up the building and kill union employees and officials fall within the confines of § 5504. According to the Commonwealth, appellee demonstrated his obvious intent to both harass and terrorize the listener; the mere fact that the phone calls were intercepted by an answering machine prior to being heard by the witness was irrelevant.

Appellee counters that he did not act with the statutorily required “intent to harass.” He claims that the phone calls were made for a legitimate purpose — -to register a complaint about his recent loss of employment and the union’s apparent failure to help him find other work.

In its opinion, the trial court posits that § 5504 was not intended to prohibit the type of conduct exhibited by appellee. According to the court, this section was intended to prohibit conduct of a continuing nature of the type the Commonwealth unsuccessfully tried to prove. In making this conclusion, the court found guidance in the harassment provisions of 18 Pa.C.S.A. § 2709. Moreover, the trial court stated that it was highly unlikely the legislature ever intended § 5504 to be applied to situations in which a telephone answering machine was used, as the statute was enacted prior to the widespread use of such machines. Finally, the court opined that § 5504 and its predecessor, 18 P.S. § 4414.1, were intended to prohibit anonymous communication, which was not the case here.

What we are faced with today is the proper interpretation of § 5504. When faced with such a situation, it is the duty of this Court to ascertain and effectuate the intention of the legislature. Commonwealth v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987). In so doing we are guided by the provisions of the Statutory Construction Act, 1 Pa.C.S.A. § 1901, et seq. Under this Act, when the wording of the statute in question is clear and free from ambiguity, we are to follow the letter, and not the spirit, of the law. 1 Pa.C.S.A. § 1921(b).

Harassment by communication or address provides in pertinent part:

§ 5504. Harassment by communication or address
(a) Offense defined. — A person commits a misdemeanor of the third degree if, with intent to harass another, he:
(1) makes a telephone call without intent of legitimate communication or addresses to or about such other person any lascivious or indecent words or language or anonymously telephones another person repeatedly; or
(2) makes repeated communications anonymously •or at extremely inconvenient hours, or in offensively coarse language.

18 Pa.C.S.A. § 5504(a) (emphasis added).

Section 5504 was derived from 18 P.S. § 4414.1 (repealed), entitled “Malicious use of telephones.” In the official comment to § 5504, it is noted that “this section makes no substantial change in the existing law,” which provided in pertinent part:

§ 4414.1 Malicious use of telephones
Whoever telephones another person and addresses to or about such other person any lewd, lascivious or indecent words, language, suggestion or proposal, or solicitation to engage in fornication or any other immoral act, or whoever anonymously telephones another person repeatedly for the purpose of annoying, molesting or harassing such other person or his or her family, is guilty of a misdemeanor ...

18 P.S. § 4414.1 (repealed) (emphasis added).

As set forth above, § 5504 is clear on its face. By its very terms and legislative history, § 5504 explicitly sanctions three types of telephone calls: (1) calls made without the intent of legitimate communication; (2) calls using lewd, lascivious, or indecent language; and (3) repeated calls made anonymously. To the extent that the trial court disagrees, it has clearly committed error.

Turning to the statutory mens rea requirement of § 5504, we are guided by the analysis set forth in the case of Commonwealth v. Kozinn, 381 Pa.Super. 64, 552 A.2d 1096 (1989). In addressing the proper interpretation of the statutory phrase “with intent to harass,” this Court noted:

The law does not permit an actor to avoid the consequences of his conduct by disclaimers of an intent to injure or harm or offend or “harass.” Rather, the law obliges the factfinder to rely for the discernment of intent upon demonstrative manifestation of that intent. Every action produces a reaction, every act has an effect. The nature or essence of an act is most often, and usually convincingly, determined by its effect or result. When an individual knows or should know the consequences of his act, he is presumed to be aware of the nature of his act, and his decision to perform the act is a manifestation of his intent to effect the results of his act. The assigned task of the jury was to determine whether appellant knew or should have known that an effect of his call would be to harass the listener.

Id., 381 Pa.Superior Ct. at 68, 552 A.2d at 1098.

Keeping this analysis in mind, we can come to no other conclusion but that appellee is guilty of violating § 5504. It is not disputed that appellee made a number of phone calls which were recorded on the victim’s answering machine. It is equally undisputed that those messages consisted of obscene language coupled with threats of death and destruction to various members of the union, including the listener. The mere fact that appellee may have been upset at the union’s failure to assist him in obtaining employment does not negate his obvious intent to harass his listener. By the very nature of the language used, appellee no doubt knew, or should have known, that his messages would inflict terror on the listener as well as other members of the union. Any privilege enjoyed by appellee due to his recent difficulty in obtaining employment was lost the moment he began his tirade against union officials. To hold otherwise would render § 5504 meaningless.

Both appellee and the trial court argue that § 5504 was intended only to prohibit conduct of a continuing nature such as is proscribed by the general harassment provisions of § 2709(3). We disagree. Section 2709 has no application here for two reasons: first, appellee has not been charged under that section; and second, while § 2709(3) speaks of a “course of conduct,” § 5504 explicitly provides sanctions for a single telephone call falling within one of its prohibited areas of communication.

Moreover, we find unavailing the court’s conclusion that § 5504 was not intended to be applied to situations where an answering machine was used. To argue that a person can escape punishment for obvious threatening phone calls solely on the basis that those calls were initially received by an answering machine simply defies logic. How a telephone message can be deemed any less threatening when recorded first on an answering machine is beyond the comprehension of this Court. So, too, is the court’s position regarding anonymity. As we interpret § 5504, both anonymous and non-anonymous communications are explicitly proscribed.

We are satisfied in this particular case that the evidence presented by the Commonwealth established beyond any doubt that appellee was guilty of harassment by communication. Therefore, we have no alternative but to vacate the order of the trial court granting appellee’s writ of certiorari.

Order vacated. Judgment of sentence reinstated.

      . 18 Pa.C.S.A. § 2706.

      . 18 Pa.C.S.A. § 5504.

      . On re-direct examination, the Commonwealth attempted to introduce evidence of 54 other phone calls made by appellee. This evidence, however, was met with an objection by defense counsel which was sustained by the trial court. Apparently, the trial court ruled the evidence inadmissible as being beyond the scope of cross-examination. No other attempt was made by the Commonwealth to admit this evidence.

      . Section 2709 entitled “Harassment” provides in pertinent part:

        A person commits a summary offense when, with intent to harass, annoy or alarm another person:
      ******
      (3) he engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.
      18 Pa.C.S.A. § 2709.

      . Other jurisdictions have had occasion to address this argument. In State v. Placke, 733 S.W.2d 847 (Mo.App.1987), the Missouri Court of Appeals held that a harassment conviction under a statute similar to § 5504 was proper despite the fact that the calls were received by an answering machine rather than directly by the victim. As the Court aptly noted, "... the very purpose of an answering machine is to ensure that the owner will receive all messages communicated throughout the day." Id. at 849.


author: MONTEMURO, Judge:

text:
    559 A.2d 588
    Kathleen O’NEILL, Appellee, v. Charles J. GIOFFRE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1989.
    Filed June 8, 1989.

      Walter D. Campbell, Levittown, for appellant.
    James E. Lynch, Bensalem, for appellee.
    Before MONTEMURO, TAMILIA and MONTGOMERY, JJ.
   MONTEMURO, Judge:

The appellant, Charles Gioffre, appeals from the trial court’s order denying his petition to open or strike the judgment rendered against him, asserting that a judgment for arrearages may not lawfully be entered against him pursuant to Rule 1910.23 of the Rules of Civil Procedure where the arrearages are created by the retroactive effect of the support order. The order specifically provides that the arrearages are to be paid in weekly installments, and the appellant has continually complied with the order. We agree.

On May 6, 1985, the appellee, Kathleen O’Neill, filed a petition for child support against the appellant who responded by denying paternity of the child. At the conclusion of the paternity hearing, held on September 22, 1986, the appellant was found to be the 'father. The appellant’s subsequent appeal from the order of paternity was dismissed by this Court. Based on the finding of paternity, the trial court entered an order, dated February 18, 1987, which directed the appellant to pay $120 per week in child support and $15 per week towards the arrearages created by the retroactive effect of the order. On February 28, 1987, the appellant began making the payments outlined in the February 18, 1987 order, and has continued to do so. On September 19, 1987, the Domestic Relations Office issued to the appellee a certificate of arrears in the amount of $8,118.55. On October 2, 1987 the appellee had the $8,118.55 reduced to a judgment against the appellant, pursuant to Rule 1910.23 of the Rules of Civil Procedure. On November 12,1987, the appellee attached the appellant’s property in order to collect the amount in arrears. The appellant responded by filing, on November 25, 1987, a petition to strike or open the judgment. It is from the denial of this petition that the appellant appeals.

According to Rule 1910.23 of the Rules of Civil Procedure, “if the defendant is thirty days or more in arrears under the order of the court as appears from a current certificate of the domestic relations section, the prothonotary shall enter judgment on praecipe accompanied by the certificate in the amount shown in the certificate.” The appellant contends that Rule 1910.23 does not apply where the defendant is in compliance with the support order. The appellee does not dispute this latter statement, but argues instead that the appellant was not in compliance with the order of support, because the entire amount of the arrearages became due on the day the order was entered and was not paid within the thirty day period. We disagree. The support order only required the appellant to pay $15.00 per week towards the arrearages, and the appellant has made those payments each week.

Having concluded that the appellant has complied with the order of support, we must now determine whether Rule 1910.23 applies to such situations. Although we have found no cases interpreting Rule 1910.23, its purpose is clear. The rule was created in order to provide a means by which a party could enforce an order of support which the defendant has refused to honor. The explanatory note to Rule 1910.23 supports this conclusion. It declares that:

The defendant against whom an order has been entered has the obligation to make payment____ If he fails in this obligation, judgment may be entered against him as provided by subdivision (a). Having violated the support order, the burden is upon the defendant to pay the amount of the judgment, petition to strike or open it, or simply communicate with the domestic relations section where judgment has been entered.

Because Rule 1910.23 permits judgments to be entered only where the defendant fails to comply with the order of support within the thirty day period, we conclude that it does not apply to situations in which the defendant is in compliance with the support order. Therefore, the judgment was improperly entered.

The judgment is also improper in that it was based upon a non-existent support order. In order to be valid, the judgment had to be based upon a support order which required the appellant to pay the total amount of arrearages as of the date of the support order. Clearly, the order of support in the instant case does not require such payment. It only requires the appellant to make $15.00 payments each week towards the arrearages. Moreover, were we to permit the appellee to collect the total amount of the arrearages created by the retroactive order, we would, in effect, be permitting the appellee to change the order of support without going through the proper channels. The support order specifically designated the manner of payment. If the appellee was not satisfied with the manner of payment, the proper procedure would have been to appeal the order or seek its modification. This she did not do.

For these reasons, we reverse the trial court’s denial of the petition to open the judgment and vacate the judgment which was entered against the appellant in the sum of $8,118.55.

      . In its opinion, the trial court explained that:
      The order was made effective from that earlier date [the date the petition for support was filed] because of a large amount which had been paid by the Department of Public Welfare for the child because the respondent, the mother of the child, was on welfare from that date and received funds for this child. Therefore, there essentially are two orders of court, one being a direct support order in the sum of $120.00, the other being the welfare order for the welfare funds previously received. The respondent was no longer on welfare on the date of the entry of this order and therefore the payments from the Department of Welfare have terminated.
      Trial Court Opinion at 2.

      . This sum represented the number of weeks existing between May 6, 1985 and September 19, 1987 multiplied by $120.00.

      . The order appealed from states: "AND NOW, to wit, this 24th day of October 25, 1988, it is hereby ordered that the rule of November 25, 1987 to show cause why the judgment should not be opened or stricken is DISCHARGED.” Although such language does not ordinarily constitute a final appealable order, we will treat it as such since the trial court’s opinion makes clear its denial of the appellant’s petition through discharge of the rule to show cause.

      . See Section 4534 of the Uniform Reciprocal Enforcement of Support Act. 23 Pa.C.S.A. § 4534.

      . See Pa.R.C.P. 1910.10 (Support Order. Modification. Termination).


author: CAVANAUGH, Judge:

text:
    559 A.2d 590
    Kirsten Kay EDMONDS, Administratrix of the Estate of Leonard Blaine Edmonds, Deceased and Kirsten Kay Edmonds, in Her own Right v. MBB, INC. and Messerschmitt-Boelkow-Blohm and Keystone Helicopter Corporation and Lehigh Valley Hospital Center, Inc. and Adella J. Dillman, Administratrix of the Estate of Scott Dillman, Deceased and Adella J. Dillman, in Her Own Right. Appeal of KEYSTONE HELICOPTER CORPORATION and Lehigh Valley Hospital Center, Inc. Frank J. RICCOBONO, Administrator of the Estate of Patricia A. Riccobono, Deceased v. KEYSTONE HELICOPTER CORPORATION.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1988.
    Decided May 31, 1989.

      Jonathan S. Ziss, Philadelphia, for appellants in Nos. 738 and 739.
    Howard J. Levin, Philadelphia, for Edmonds, appellee in No. 738.
    Jay Lambert, Philadelphia, for MBB, appellees in No. 738.
    William A. Loftus, Philadelphia, for Riccobono, appellee in No. 739.
    Before CAVANAUGH, McEWEN and POPOVICH, JJ.
   CAVANAUGH, Judge:

These cases are consolidated appeals from Orders entered on February 8, 1988 in the Court of Common Pleas for the County of Philadelphia. Appellants, Keystone Helicopter Corporation (Keystone) and Lehigh Valley Hospital Center, Inc. (LVH) are contesting the denial of their motion for late joinder of, and cross claim against, Messerschmitt-Boelkow-Blohm (Messerschmitt). Appellee Frank Riccobono is the administrator of the estate of Patricia Riccobono, deceased. Appellee Kirsten Kay Edmonds is the administratrix of the estate of Leonard Blaine Edmonds, deceased. Both Keystone and LVH are defendants in the Edmonds case. In the Riccobono case, Keystone is the sole defendant.

The cases are wrongful death actions arising from a helicopter accident. On April 27, 1982, Leonard Edmonds was one of four passengers in a motor vehicle operated by Scott Dillman. The vehicle struck a telephone pole and Dillman was killed; Edmonds sustained critical injuries. On-scene emergency medical personnel requested that Edmonds be med-evaced to Allentown Sacred Heart Hospital, (ASHH, subsequently LVH).

Pursuant to contract, Keystone provided the pilot who operated the ASHH helicopter. The hospital dispatched the helicopter to the accident scene, operated by a Keystone pilot, in order to transport Edmonds to the hospital for trauma care. Edmonds was removed from the Dillman vehicle and placed in the helicopter. Tragically, the helicopter crashed shortly after take-off killing everyone on board. The passengers were: Edmonds; Patricia Riccobono, a paramedic; Jeanette Christ, a registered nurse; and the pilot, James Landis.

On May 20, 1983, the Riccobono suit was filed naming Keystone as the sole defendant.

The Edmonds action was instituted on September 13, 1983. Named as defendants, in addition to Keystone and LVH (formerly ASHH), were: Messerschmitt, the designer and manufacturer of the helicopter; M.B.B., Inc., Messerschmitt’s United States sales distributor; and Adella Dill-man, both as the administratrix of the estate of Scott Dillman and in her own right.

By order dated January 31, 1984, the Edmonds and Riccobono cases were consolidated for trial.

On May 15, 1984, Keystone was denied leave to join Adella Dillman as an additional defendant in the Riccobono case. Similarly, on January 18, 1985, Keystone was denied leave to join two bars as additional defendants in both Edmonds and Riccobono. These latter two orders were appealed to this court. On May 30, 1986, a panel of our court affirmed the decision of the trial court. Riccobono v. Keystone Helicopter Corporation, 352 Pa.Super. 186, 507 A.2d 834 (1986).

On September 22,1987, Keystone and LVH filed a motion to amend their answers in order to assert a crossclaim against Messerschmitt for contribution and/or indemnity in the Edmonds action.

On the same date, Keystone filed a motion to join Messerschmitt as an additional defendant nunc pro tunc in Riccobono.

These motions were argued on November 10, 1987; they were denied on February 8, 1988. Notices of appeal were timely filed and, pursuant to a stipulation filed on August 2, 1988, the appeals were consolidated.

The appellants present two issues for our review:

1. Whether appellants should be granted leave to amend their answers in Edmonds to assert a crossclaim against Messerschmitt for contribution and/or indemnification nunc pro tunc where the appellants expeditiously sought leave upon obtaining information which reasonably supports the crossclaim.
2. Whether Keystone should be granted leave to join an additional defendant nunc pro tunc in Riccobono where Keystone expeditiously sought leave upon obtaining information which reasonably supports a claim for contribution and/or indemnification arising out of the plaintiffs cause of action.

Following careful consideration of these issues and the record, we affirm.

Initially, appellants argue that the lower court abused its discretion in failing to allow them to amend their answers in order to assert crossclaims against the helicopter manufacturer, Messerschmitt. Pursuant to Rules 2252(d) and 1026 of the Pennsylvania Rules of Civil Procedure, answers which assert new matters in the nature of a crossclaim must be filed within twenty days after service of the complaint. After this time period expires, if a party wishes to amend its answers in order to assert a crossclaim it must either obtain the consent of the adverse party or obtain leave of court. Pa.R.Civ.P. 1033. It is committed to the sound discretion of the trial court to decide whether to permit such an amendment. Schaffer v. Litton Systems, Inc., 372 Pa.Super. 123, 539 A.2d 360 (1988). However, leave to amend a pleading should be liberally granted absent prejudice to the adverse party. Winterhalter v. West Penn Power Company, 355 Pa.Super. 17, 512 A.2d 1187 (1986).

This court has defined prejudice as:

“something more than a detriment to the other party, ‘since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party.’ ” [citation omitted].

Winterhalter v. West Penn Power Company, supra, 355 Pa.Superior Ct. at 22, 512 A.2d 1187.

In the case sub judice, the motion to amend was filed on September 10, 1987, approximately four years after the filing of the answers. Appellants contend that this four year delay will not prejudice Messerschmitt since they will defend the Edmonds claim by inculpating Messerschmitt’s design of the helicopter regardless of whether they are permitted to file the crossclaim. Appellants also argue that the plaintiff will not be prejudiced since the same evidence will be adduced at trial whether or not there is a crossclaim.

While both of these contentions may be true, it does not necessarily follow that they are tantamount to the absence of prejudice. As the lower court noted,

An amendment to now plead a cross-claim might well require additional time to interview both lay and expert witnesses and plan new defenses. This, in essence, is what the adversary system of law is all about.
To have permitted these defendants to amend to add a cross-claim as the case was about to begin would have been prejudicial to the other parties and would have given the movants an unfair advantage which could only have been neutralized by further discovery and delay.
In light of the fact that this case was four years old, that undue delay had occurred through no fault of the other parties or the court, the court considered that further delay was unwarranted. There comes a time when the parties must be ready to proceed with their lawsuit. The time in this instance had long since passed. The court, therefore, refused to permit amendment of the answer to add the cross-claim. (L.C.O. at pp. 4-5)

Appellants contend that this discussion of the prejudice issue was both conclusory and hollow. They assert that the trial judge improperly focused on appellants explanation for its delay in seeking the amendment. Appellants argue that the lower court simply should have used the four year period as a measure of resulting prejudice.

We find that the lower court’s reasoning on the issue of prejudice was neither conclusory nor hollow. The trial judge did, in fact, use the four year period as a measure of resulting prejudice. He determined that it would be inequitable to permit this crossclaim since it would necessitate further discovery which, in turn, would delay the already four year old litigation. We perceive no abuse of discretion on the part of the trial court in making such a determination.

Next, Keystone contends that the lower court abused its discretion in Riccobono by failing to grant Keystone leave to join Messerschmitt as an additional defendant nunc pro tunc. Keystone’s motion to join Messerschmitt was filed on September 22, 1987, approximately four years after the complaint was served.

The applicable statutory law governing late joinder, as well as our standard of review, was recently set forth by this court as follows:

Pennsylvania Rule of Civil Procedure 2258 prohibits the filing of a praecipe or complaint to join an additional defendant more than sixty days after the original defendant is served with plaintiffs initial pleading. Rule 2258 permits an untimely filing only upon cause shown____ Unless appellant demonstrated cause to justify the untimely filing, the trial court had no choice but to deny the motions to join nunc pro tunc.

Joinder after the sixty day period may provide a method of expeditiously litigating disputes involving many parties provided the plaintiff is not subjected to unreasonable delay, [citation omitted]. To justify late joinder, the petitioning defendant must show,

(1) some reasonable justification or excuse for the delay; (2) a statement of the facts alleged to render the proposed additional defendant alone liable, or liable with, or liable over to defendant, or liable to the defendant on a proper cross claim; and (8) allegations that the late joinder will not be prejudicial to the proposed additional defendant. It should ask for leave to file both the praecipe and the complaint called for by Rule 2252(b). [citations omitted].

Whether cause is shown to justify late joinder is a matter for the sound discretion of the trial court, and we shall not reverse absent an abuse of discretion, [citation omitted].

Riccobono v. Keystone Helicopter Corporation, supra 352 Pa.Super. at 189-190, 507 A.2d at 885-886.

Appellant argues that it had no sound reason to join Messerschmitt until the summer of 1987; at that time, Keystone’s counsel learned of a similar crash involving the same model helicopter. Prior to the acquisition of this information, Keystone contends it did not suspect that a common defect was the cause of the crashes despite the fact that it was aware of similar crashes in both 1982 and 1985. Appellant asserts that this new information constitutes reasonable justification for the delay thus satisfying the first prong of the three part test. We disagree.

It is incumbent upon Keystone to justify its delay in joining the proposed additional defendant. Kovalesky v. Esther Williams Swimming Pools, 345 Pa.Super. 95, 497 A.2d 661 (1985). Similarly, appellant must act expeditiously itself before asking the court to help it secure a just, speedy and inexpensive determination of the suit by permitting late joinder. Zakian v. Liljestrand, 438 Pa. 249, 264 A.2d 638 (1970).

The lower court found that Keystone’s explanation was an insufficient excuse stating:

Defendant does not set forth when or how it learned of the other crashes, or, more importantly, why it did not seek to ascertain the cause of the instant crash sooner. Keystone was fully aware that Messerschmitt manufactured this helicopter. Prompt investigation by Keystone as to the cause of the accident and reasonably diligent discovery would have revealed any potential liability of Messerschmitt. (L.C.O. at pp. 3-4).

The record fully supports the trial court’s decision. The Edmonds ’ complaint was served on Keystone on September 22, 1983. This complaint made allegations against Messerschmitt pertaining to defective design and/or manufacture of the helicopter. Therefore, Keystone was put on notice in 1983 that a possible defect existed. This information should have alerted appellant to investigate the possibility of a design or manufacturing defect shortly after the Edmonds’ complaint was filed. Had it done so, Keystone could have discovered the existence of a defect and sought the joinder of Messerschmitt much earlier.

Consequently, we find no abuse of discretion on the part of the trial court in determining that Keystone failed to establish reasonable justification for the late joinder of Messerschmitt. As appellant must prove each part of the three prong test and it has failed to carry its burden on the first part, it is unnecessary to review Keystone’s remaining contentions.

Orders affirmed.

      . Rule 2252(d) provides:
      If the person sought to be joined is a party, the joining party shall, without moving for severance or the filing of a praecipe for a writ or a complaint, assert in his answer as new matter that such party is alone liable to the plaintiff or liable over to the joining party or jointly or severally liable to the plaintiff or liable to the joining party directly setting forth the ground therefor. The case shall proceed thereafter as if such party had been joined by a writ or a complaint.

      . Rule 1026(a) provides:
      Except as provided by subdivision (b), every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead.

      . Rule 1033 provides:

        A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.


text:
    559 A.2d 925
    James V. GRASSO and Judith A. Grasso, Husband and Wife; George P. Hammer and Linda A. Hammer, Husband and Wife; Lawrence G. Hofmann, Jr. and Rolanda A. Hofmann, Husband and Wife; and Gordon G. Newell and Marion Jo Newell, Husband and Wife v. Theodore W. THIMONS, Jr. and Eileen R. Thimons, Husband and Wife, Appellants, v. Raymond H. SMITH, Jr. and Mary Jo Smith, Husband and Wife.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1988.
    Filed April 17, 1989.
    Reargument Denied June 26, 1989.

      Howard M. Louik, Pittsburgh, for appellants.
    James R. Kyper and Daniel S. Cohen, Pittsburgh, for Grasso, appellees.
    Before OLSZEWSKI, DEL SOLE and KELLY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order granting appellees’ motion for summary judgment and denying appellants’ cross-motion for summary judgment. Appellants raise the following issues for our review: (1) whether the trial court erred in finding that the restrictive covenant prohibits appellants from using their property as both a residence and professional office; (2) whether the trial court was required to consider extrinsic evidence of the declarant’s intent in construing the phrase “residential uses” in the restrictive covenant; (3) whether appellees, neighboring property owners, are entitled to summary judgment in the absence of any proof of damages or substantial benefit in enforcement of the restrictive covenant; (4) whether appellees are precluded from obtaining summary judgment on the basis of equitable estoppel; and (5) whether the trial court’s order, not entered in accordance with Pa.R.C.P. No. 1517(a), invalidates the entry of the order granting summary judgment in favor of appellees. For the reasons below, we affirm.

On May 2, 1986, appellees commenced the instant equity action to enjoin appellants, Theodore W. Thimons, Jr. and Eileen R. Thimons, from conducting an accounting business in their residence. Appellees are four couples who reside in single-family dwellings in close proximity to appellants in the Forest Ridge Plan, Hampton Township, Allegheny County, Pennsylvania. All couples, including the Thimonses, took their respective lots subject to a restrictive covenant limiting the lots to “residential uses.” Since approximately January, 1986, after the Thimonses moved into their residence in the Forest Ridge Plan, Mr. Thimons began using part of the residence as an accounting office. Appellants admit that Mr. Thimons maintains and operates an accounting office consisting of an office and reception area in the basement of their residence in the Forest Ridge Plan. On December 1, 1986, appellees filed a motion for summary judgment on the grounds that, inter alia, Mr. Thimons’ operation of an accounting business in his residence violated the restrictive covenant thereby entitling appellees to enforcement of the covenant as a matter of law. Thereafter, appellants responded with an answer to appellees’ motion and also filed a cross-motion for summary judgment. On December 15, 1987, the trial court granted appellees’ motion for summary judgment and denied appellants’ cross-motion. This timely appeal followed.

Appellants’ first contention is that the trial court erred in finding that the restrictive covenant prohibits appellants from using their property as a residence and professional office. The covenant in question provides:

The following shall be restrictions on the use of the Properties which shall run and bind the land:
(a) None of the Lots shall be used for any purpose other than for residential uses.

Record at 12-a. Initially, we note that:

“Restrictive covenants which restrict the use of property, although not favored by the law, are legally enforceable.” We will find a use to be in violation of a restrictive covenant only if it is in clear defiance to the provisions imposed by the covenant. “Such restrictions [must be] strictly construed and will not be extended by implication.”

Morean v. Duca, 287 Pa.Super. 472, 475, 430 A.2d 988, 990 (1981) (citations omitted). In determining whether the covenant delineated supra prohibits appellants’ use of their property as residence and professional office, we must consider the meaning of the phrase “residential uses.” “ ‘Residence,’ in its popular as well as its dictionary sense means a place of abode; it is whore one lives, either alone, or with one’s family____” Gerstell v. Knight, 345 Pa. 83, 85, 26 A.2d 329, 330 (1942) (footnote omitted). We agree with the trial court that “[t]he exclusionary language ‘none ... shall be used for any purpose other than for residential uses’ expressly and unambiguously prohibits all uses not residential____” Opinion at 3. Appellants’ accounting practice constitutes non-residential use of their property and, therefore, is violative of the restrictive covenant. See Haskell v. Gunson, 391 Pa. 120, 137 A.2d 223 (1958).

Appellants, however, maintain that, because the word “use” is in its plural form, the phrase “residential uses” permits “residential and mixed residential uses.” Appellants’ brief at 8. Appellants write: “The Restrictive Covenant, if not expressly permitting the type of dual use made by Mr. Thimons (as both a residence and professional home office), is, at the very least, ambiguous as to such mixed use.” Appellants’ brief at 8 (footnote omitted). If we were to agree with appellant, we would be expanding the plain meaning of “residential” to include professional practice. This we refuse to do.

We find the language of the instant covenant similar to the language of the covenant in Morean, supra. In Morean, appellants were owners of residences in or near a development. A restrictive covenant contained in the deeds to appellants’ property provided that use of the property was limited to “residential and recreational purposes only.” Shortly after moving to the development, appellee began using his garage to conduct an automotive and tractor repair business and, thereafter, for repairing and selling snowmobiles. Appellants sought to enjoin the operation of appellee’s business. This Court found that the language of the covenant was unambiguous in prohibiting all uses that were neither residential nor recreational and, therefore, concluded that appellee’s commercial activities violated the restriction. Similarly, in the instant case, the language employed in drafting the covenant is unambiguous in prohibiting appellants from using their property for conducting a profession or business. We disagree with appellants’ claim that Morean is distinguishable because the language of the covenant in Morean is “stated in the affirmative and contained an express limitation by utilizing the term ‘only.’ ” Appellant’s brief at 8. Simply because the language is written in the negative does not make it less clear. Moreover, the words “none” and “any,” likewise, specify an express limitation. Accordingly, we find that the clear language of the instant restrictive covenant prohibits appellants from using their property as both a residence and professional office.

Having concluded that the pertinent language is unambiguous, we find the trial court did not abuse its discretion in refusing to admit or consider extrinsic evidence of the declarants’ intent in construing the restrictive covenant. See Wysinski v. Mazzotta, 325 Pa.Super. 128, 132-33, 472 A.2d 680, 683 (1984) (“With respect to unambiguous deeds, a court must ascertain what is the meaning of the words used, not what may have been intended by the parties as shown by parol.”); see also Mscisz v. Russell, 338 Pa.Super. 38, 41, 487 A.2d 839, 841 (1984).

Appellants next argue that appellees are not entitled to summary judgment in the absence of any proof of damages or substantial benefit in enforcement of the restrictive covenant. It is true that equity will not enforce a restrictive covenant in the absence of any benefit to the party seeking enforcement of the covenant. Loeb v. Wat kins, 428 Pa. 480, 240 A.2d 513 (1968).

We, however, disagree that appellees failed to demonstrate that they will not benefit from the enforcement of the instant covenant.

A motion for summary judgment may properly be granted only “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.” Pa.R.C.P. 1035(b). The court’s function is not to decide issues of fact but to determine whether there is an issue of fact to be tried. The court must examine the record in the light most favorable to the nonmoving party, with any doubts resolved against the moving party. Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984).

Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 471, 516 A.2d 354, 357, alloc. dn. in 515 Pa. 580, 527 A.2d 541 (1986). In the case sub judice, there is no genuine issue of material fact as to whether enforcement of the covenant would result in substantial benefit to appellees. Appellees have established that: (1) Forest Ridge is a residential neighborhood, with the exception of a sales office maintained by its developer, Mr. Raymond Smith, Jr.; and (2) Mr. Thimon’s office has resulted in increased visitors and traffic in the neighborhood. It is, therefore, clear that appellees forfeit the benefits associated with residential living if the restrictive covenant is not enforced. Consequently, we find appellants’ contention is without merit.

Appellants also contend that appellees are precluded from obtaining relief on the basis of equitable estoppel. Specifically, appellants maintain that appellees are equitably estopped from seeking enforcement of the restrictive covenant because they failed to object to the sales office maintained in the Forest Ridge Plan by Mr. Smith. We disagree.

Equitable estoppel applies to prevent a party from assuming a position or asserting a right to another’s disadvantage inconsistent with a position previously taken. When a party “by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts ... the person inducing the belief in the existence of a certain state of facts is estopped to deny that the state of facts does in truth exist, over a different or contrary state of facts as existing at the same time, or deny or repudiate his acts, conduct, or statements.” The essential elements of estoppel are “an inducement by the party sought to be estopped to the party who asserts the estoppel to believe certain facts to exist — and the party asserting the estoppel acts in reliance on that belief." [Emphasis in original.]

Blofsen v. Cutaiar, 460 Pa. 411, 417, 333 A.2d 841, 843-844 (1975) (citations omitted).

Instantly, appellants failed to demonstrate that genuine issues of fact existed regarding whether appellees induced appellants to believe they could maintain and operate an accounting office in their residence and, whether appellants relied on such belief. Instead, the record indicates that Mr. Thimons relied upon representations made by a real estate agent and Mr. Smith that the area in question was zoned for operation of professional offices. Again, we find appellants’ contention meritless.

Finally, appellants maintain that the trial court’s failure to comply with Pa.R.C.P. No. 1517(a) in fashioning its order invalidates the entry of the summary judgment in favor of appellees. Because Rule 1517 is inapplicable to an order granting summary judgment, we find appellants’ claim meritless.

Rule 1517 states:

(a) The court shall make an adjudication and may do so before the testimony has been transcribed. The adjudication shall consist of (1) a statement of the issues; (2) a closely condensed chronological statement, in narrative form or in separate findings, of all the facts which are necessary to be known in order to determine the issues; (3) a discussion of the questions of law involved and the court’s conclusions of law and (4) a decree nisi.
(b) The adjudication may be made orally in open court at the end of the trial, and in that event shall be forthwith transcribed and filed in the office of the prothonotary, or it may be made thereafter in writing and filed forthwith. In either event the prothonotary shall notify all parties or their attorneys of the date of filing.

Pa.R.C.P. § 1517, 42 Pa.C.S.A.

An order granting summary judgment is not an “adjudication” under this rule. “The adjudication referred to in Rule 1517 is the chancellor’s proposed final disposition of a complaint after trial____” U.S. National Bank in Johnstown v. Johnson, 506 Pa. 622, 628, 487 A.2d 809, 812 (1985) (emphasis in original). This difference is evident in the appealability of an order granting summary judgment and a Rule 1517 adjudication which includes a decree nisi. In In re Adoption of Hamilton, 362 Pa.Super. 249, 523 A.2d 1176 (1987), this Court stated:

Pennsylvania Rule of Civil Procedure 1517 provides that, in equity actions, the court shall proceed by entering an adjudication including a decree nisi. Post-trial practice then proceeds in accordance with Pa.R.C.P. 227.1 which requires the filing of a motion for post-trial relief from an adjudication or decree nisi.

Id., 362 Pa.Superior Ct. at 251, 523 A.2d at 1177. Moreover, in Miller v. Miller, 359 Pa.Super. 183, 518 A.2d 841 (1986), this Court explained:

A Decree Nisi is a non-appealable interlocutory order which is filed so that the parties may object to and reargue the issues before the trial court. Bogosian v. Foerder Tract Committee, 264 Pa.Super. 84, 399 A.2d 408, 410 (1979). Only after reviewing the merits of these arguments may the chancellor enter a final Decree. [Cooney v. Pennsylvania Osteopathic Association, 434 Pa. 358, 359, 253 A.2d 256, 257 (1969)] “The right of appeal lies from the final decree entered by the court.” Bogosian at 399 A.2d 410.

Id., 359 Pa.Superior Ct. at 185-86, 518 A.2d at 842. By contrast, when a court enters an order granting summary judgment, no post-trial motions are required. “An order granting summary judgment is final and appealable, and once summary judgment is granted, an appeal must be filed, if at all, within 30 days. Burkhart v. Brockway Glass Co., 352 Pa.Super. 204, 507 A.2d 844 (1986); Pa.R.A.P. 903(a).” Progressive Home Federal Savings and Loan Association v. Kocak, 359 Pa.Super. 120, 122, 518 A.2d 808, 809 (1986). Consequently, we find the requirements of Rule 1517 are inapplicable to an order granting summary judgment.

Order affirmed.

      . Appellees also filed an amended complaint to join Raymond H. Smith, Jr. and Mary Jo Smith, as additional defendants. The Smiths are not parties to this appeal.

      . For nine months of the year, Mr. Thimons’ primary place of business is his office located in his home. Of the remaining three months of the year, Mr. Thimons spends an equal amount of time working in his residential office and in a business location. Sixty-percent of Mr. Thimons' annual income results from the business he conducts from his residential office.

      . This appeal is properly before us. See Ortiz v. Ra-El Development Corp., 365 Pa.Super. 48, 51-52, 528 A.2d 1355, 1357 (1987) (An order granting summary judgment in favor of several defendants is appeal-able as a final order.).

      . Justice Musmanno and Chief Justice Bell, contrary to the majority position in Loeb, would not require proof of substantial benefit. Justice Musmanno wrote:
      Restrictive covenants are enforceable without the necessity of showing that the enforcement would work a substantial gain to the legal beneficiary of the covenant. The plaintiffs right here to enforce the restrictive covenant is absolute, regardless of proof that they do or do not suffer damage as a result of the breach of the covenant.

        Id., 428 Pa. at 484-85, 240 A.2d at 516. This view is consistent with the general rule in other jurisdictions. See, e.g., Marshall v. Adams, 447 S.W.2d 57 (Ky.1969); Freehling v. Development Management Group, Inc., 75 Ill.App.3d 243, 30 Ill.Dec. 610, 393 N.E.2d 646 (1979); Dice and Dice v. Central Natrona County Improvement and Service District, 684 P.2d 815 (Wyo.1984); Taylor v. Kohler, 507 So.2d 426 (Ala.1987); Breeling v. Churchill, 228 Neb. 596, 423 N.W.2d 469 (1988); Lakeshore Property Owners Association, Inc. v. Delatte, 524 So.2d 126, 129 (La.App. 4 Cir.1988). The underlying rationale is set forth in Marshall, supra.:

      "The evidence as to whether appellant’s property was damaged by the violation of the agreement was conflicting, but we do not think that was a material question. In (citation omitted) the court, in discussing the enforcement of negative covenants in courts of equity, said it was well settled that equity would entertain bills for injunctions to prevent their breach although the breach would cause no substantial injury or although the damages might be recoverable in an action at law. ‘This is upon the principle that the owner of land selling or leasing it may insert in his deed or contract just such conditions or covenants as he pleases touching the mode of enjoyment and use of the land.’ As said in Steward v. Winters, 4 Sandf.Ch. (N.Y.) 587: ‘He is not to be defeated, when the covenant is broken, by the opinion of any number of persons that the breach occasions him no substantial injury. He has a right to define the injury for himself, and the party contracting with him must abide by the definition.’ ” (emphasis added)

        Marshall, supra, 447 S.W.2d at 59, citing with approval the rationale of the Illinois Supreme Court in Hartman v. Wells, 257 Ill. 167, 100 N.E. 500 (1912).

      . Appellants failed to plead equitable estoppel as an affirmative defense in their answer to appellees’ complaint; however, the defense was raised in the answer to appellees’ motion for summary judgment. Consequently, the issue is not waived. See Norris v. Wood, 336 Pa.Super. 305, 485 A.2d 817 (1984). Appellants also raised the issue in their cross-motion for summary judgment.

      . Young v. Cerone, 338 Pa.Super. 280, 487 A.2d 965 (1985), does not support appellants’ contention. In Young, property owners sought an injunction to force next-door neighbors to dismantle a fence and prohibit them from further construction. The property owners alleged that the fence was in violation of a deed restriction, subdivision 6. Judgment was entered in favor of the property owners. On appeal, appellants argued, inter alia, that appellees were equitably estopped from asserting violation of subdivision 6 because appellees, themselves, violated subdivision 6 by constructing a dog kennel in the yard. This Court agreed, stating:
      The residential character of Crestmont Farms, with its proliferation of children and pets and the presence of fences built without objection, demonstrates that Subdivision 6 is no longer viable. For the owners of lots in the development, fences now are of value, in securing children and pets and in preventing trespassing, particularly into dangers like backyard swimming pools and kennels. This is most likely why the great majority of Crestmont Farms residents have not objected to fence construction: without it, they bear a higher risk of suits arising out of trespassers’ injuries in accessible pools or from unsecured dogs, and of injuries and property damage to themselves from trespassers and roaming dogs. The facts show that Crestmont Farms has changed so that Subdivision 6, to the extent that it controls fence construction, is obsolete. The chancellor erred in concluding that appellants had not carried their burden of proving this change.

        Id., 338 Pa.Superior Ct. at 289, 487 A.2d at 969-970. Instantly, the record does not indicate the existence of a genuine issue as to a change in the surroundings of the Forest Ridge Plan so that the instant restrictive covenant no longer serves its original purpose.

      . Pa.R.C.P. No. 1501 makes Pa.R.C.P. No. 1035, regarding summary judgments, applicable to actions in equity. Laspino v. Rizzo, 40 Pa.Cmwlth. 625, 629-31, 398 A.2d 1069, 1072 (1979).

      . Appellants’ reliance on Commonwealth v. Derry Township, West., 466 Pa. 31, 351 A.2d 606 (1976); Cooney v. Pennsylvania Osteopathic Association, 434 Pa. 358, 253 A.2d 256 (1969); and Miller v. Miller, 359 Pa.Super. 183, 518 A.2d 841 (1981), is misplaced. These cases demonstrate the two different approaches used by this Court when the trial court fails to comply with Rule 1517 and is required to do so under the Pennsylvania Rules of Civil Procedure. One approach is to vacate and remand the appeal. The other approach is to entertain an appeal on the merits and find no waiver despite failure to file exceptions.


author: POPOVICH, Judge: TAMILA, Judge,

text:
    559 A.2d 931
    COMMONWEALTH of Pennsylvania, Appellee, v. Carl Franz OGBORNE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1988.
    Filed May 1, 1989.
    Reargument Denied July 10, 1989.

      F. Kirk Adams, Media, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, New-town Square, for Com., appellee.
    Before CAVANAUGH, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence of May 13, 1988. Following a non-jury trial on April 3, 1987, appellant was adjudicated guilty of possession of a controlled substance and possession with intent to deliver a controlled substance. He was found not guilty of possession of drug paraphernalia. For the reasons herein set forth, we reverse.

The pertinent facts are as follows: Detective Greenwalt of the Delaware County C.I.D. returned a telephone call from a confidential informant in the early evening of January 15, 1987. Over the past year the informant provided police with reliable information concerning drug activities in Delaware County. The informant told Detective Greenwalt that appellant would arrive later that evening in a black Dodge automobile at the 100 block of Saude Avenue, Tinicum Township. He further informed police that, based on personal knowledge, he knew the appellant would have in his possession approximately 10 bundles of the drug Phencyclidine (hereinafter P.C.P.). Detective Greenwalt testified that, after receiving the information from the confidential informant, he did not request a search warrant or arrest warrant because he did not think there was sufficient probable cause to obtain one. (N.T. Suppression Hearing 3/30/87, p. 33)

Detective Greenwalt knew appellant was involved in the distribution of P.C.P. in 1981 and 1985. He proceeded to call the Tinicum Township police and confirm that appellant and his wife resided at 115 Saude Avenue, and that a black Dodge was frequently parked in front of that property.

A police surveillance of the 100 block was set up that night. At approximately 11:20 p.m. the police observed a black Dodge enter Saude Avenue from Second Street. When the vehicle reached 115 Saude Avenue it turned into a private driveway. At this time Detective Greenwalt identified appellant as the driver of the car.

An unmarked police car operated by Detective Greenwalt immediately pulled into the driveway behind appellant’s vehicle. Detective Greenwalt then activated the emergency red flashing lights mounted on the dashboard of the vehicle. Two additional police cars parked behind Detective Green-wait’s automobile to prevent appellant from backing his vehicle onto the street.

As four or five officers surrounded appellant’s car, Detective Greenwalt approached the driver’s side of the black Dodge. He tapped on the car window, showed appellant his badge, and identified himself as a police officer. Detective Greenwalt testified at some point in time he reached back and rested his hand upon his service revolver, but did not draw the weapon. Detective Greenwalt repeatedly ordered appellant to shut off the engine, but appellant did not respond. After opening the driver’s side door Detective Greenwalt again ordered appellant to turn off the motor. Upon detecting the odor of P.C.P., Detective Greenwalt ordered appellant to step out of the car.

A search of the appellant outside the vehicle resulted in the discovery of approximately 89 packets of P.C.P. A smaller amount of the drug was also found inside appellant’s Dodge vehicle. The discovery of this evidence bottomed all the criminal charges for which appellant was convicted.

At the suppression hearing the Commonwealth testified it was its position that there was no probable cause to search appellant or appellant’s vehicle for drugs until Detective Greenwalt smelled odor of P.C.P. emanating from the Dodge. (N.T. Suppression Hearing 8/30/87 p. 23, 29)

The sole issue presented by these facts is whether the police conducted a valid investigatory stop of the appellant prior to the search and seizure of the evidence.

In evaluating an investigative stop, a court must first inquire whether the officer’s action was justified at its inception. The stop must be based on specific and articulated facts, which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Next, the court must inquire whether the intrusion was reasonably related in scope to the circumstances which justified the interference in the first place. Commonwealth v. Higgins, 346 Pa.Super. 288, 499 A.2d 585 (1985), cert. denied in 479 U.S. 841, 107 S.Ct. 149, 93 L.Ed.2d 90 quoting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Traditionally, it was accepted that seizure of the person was required by the Fourth Amendment to be based on probable cause. The first recognition that the Fourth Amendment reasonableness requirement could be satisfied by a showing of something less than probable cause was announced in Terry. However, we are admonished to be mindful that the Terry principle is an exception to the general rule requiring probable cause and must not be extended in such a way as to swallow the rule. See generally, Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982).

In the case sub judice, the Commonwealth argues Detective Greenwalt relied on specific articulated facts which provided reasonable cause to believe drugs might be found on the appellant or in his car. Appellee notes that Detective Greenwalt was contacted by a reliable informant who provided accurate , information in the past concerning local drug activities. The informant told the Detective that appellant would drive a black Dodge vehicle to a certain city block on a particular night. He further informed police that he possessed personal knowledge that appellant would be carrying approximately 10 packets of P.C.P. Detective Greenwalt had prior knowledge of appellant’s drug activities. A check with local authorities confirmed the appellant’s home was located in the city block described by the informant. Based on these circumstances, the Commonwealth argues the police were entitled to stop and investigate the appellant for suspected drug use.

Appellant argues he is entitled to a new trial because the lower court erred by denying his motion to suppress the evidence obtained at the time of the arrest. He contends the police lacked the reasonable suspicion needed to justify an investigatory stop of his vehicle. We agree with the position of the appellant. Applying the aforementioned analysis of Higgins and Terry, we have no doubt Detective Greenwalt’s investigatory stop was not justified at its inception.

Clearly, the pivotal piece of information in the case sub judice was informant’s tip that appellant would be carrying drugs. Detective Greenwalt testified at the suppression hearing that he did not know the basis of the informant’s tip, and that he did not ask the informant to reveal how he obtained such information. In the opinion of the Detective, the information regarding possession of P.C.P. by the appellant came from the informant’s personal knowledge. (N.T. Suppression Hearing, p. 30)

In essence, Detective Greenwalt stopped appellant’s vehicle in his private driveway at his residence based solely on the informant’s unverified allegation that appellant was carrying drugs. Moreover, approximately five (5) hours elapsed since police received the informant’s tip and the actual arrest was conducted. Doubtless, enough time existed between the receipt of the confidential information and the stop for Detective Greenwalt to apply for a search warrant. However, in that time span no efforts were made by police to secure a search warrant. We do not retreat from holdings that the police, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure. Terry, 88 S.Ct. at 1879, quoting, e.g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In most circumstances failure to comply with the warrant requirement can only be excused by exigent circumstances. Terry, 88 S.Ct. at 1879, quoting, e.g., Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

In the case at bar Detective Greenwalt did not obtain a search warrant following the receipt of the informant’s tip because he admitted the police did not have probable cause to do so. (N.T. Suppression Hearing 3/30/87 p. 20-21) Moreover, the record does not reflect that any exigent circumstances existed to justify the warrantless search. In the instant situation the police, armed with the uncorroborated tip that appellant possessed P.C.P. waited approximately five (5) hours before attempting to conduct a Terry investigative stop in a private driveway. Such police conduct, in effect, circumvents the warrant procedure by using information that does not rise to the level of probable cause to justify an investigative stop conducted literally hours after the information is received. Further, it makes a mockery out of the warrant procedure and departs from the factual circumstances buttressing Terry investigative stops.

In Terry, the police officer personally observed two men hover about a street corner for an extended period of time. The men paced alternately along an identical route, pausing to stare in the same store window roughly 24 times. The two individuals were eventually joined by another man in one of a number of conferences held upon the complétion of their route. Terry, 88 S.Ct. at 1881. In Terry the police officer personally observed each suspect go through a series of acts, each of them perhaps innocent in itself, but which, taken together, warranted further investigation. Id. Clearly, the facts of the case on hand have no resemblance to the facts in Terry which justified the police officers invasion of Terry’s personal security by searching him for weapons in the course of the investigation.

Instantly, Officer Greenwalt did not personally observe any unusual conduct to indicate criminal activity may have been afoot. We are not intimating that personal observation by the police of suspected criminal activity is a dogmatic requirement of Terry stops. However, we are of the opinion that investigative stops can not be justified by the receipt of uncorroborated allegations by a confidential informant acted on by police five (5) hours later. In other words, the factual circumstances of the case sub judice are simply too far removed from the line of cases upholding Terry stops. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (description on “wanted flyer” issued by neighboring police department held sufficient basis for investigative stop); United States v. Harris, 421 F.Supp. 121 (E.D.Pa.1976), aff'd 565 F.2d 153 (3rd Cir.1977), cert. denied 434 U.S. 1072, 98 S.Ct. 1258, 55 L.Ed.2d 776 (1978) (Terry stop of tractor-trailer on small country road justified on basis of officer’s knowledge that it was highly unusual for commercial vehicle to travel on such a road late at night); Commonwealth v. Lawrence, 311 Pa.Super. 326, 457 A.2d 909 (1983) (Terry stop justified where officer familiar with area knew that driver pulling out of driveway late at night did not live in residence nor own car he was driving). See also, Commonwealth v. Higgins, 346 Pa.Super. 238, 499 A.2d 585 (1985), cert. denied in 479 U.S. 841, 107 S.Ct. 149, 93 L.Ed.2d 90.

In the case on hand the stop of appellant was premised solely on an informant’s unverified allegation that appellant was carrying drugs. Granted, in the past the informant did provide police with reliable information about local drug operations. However, instantly the informant supplied police with no independent facts or additional reasons to corroborate his contention appellant possessed P.C.P.

Indeed, the actions of appellant were perfectly innocent. He arrived at his residence without any proof of criminal wrongdoing present. It was not until appellant was ordered out of his vehicle that the presence of contraband was discovered. However, up to that point in time there was no evidence of drug possession, or even traffic violations, to justify the stop.

The additional information provided by the informant concerning the color and model of appellant’s car, and the estimated time of appellant’s arrival at Saude Avenue, does not support the criminal nature of the informant’s tip. The fact the Tinicum Township police confirmed that appellant lived on Saude Avenue and that a black Dodge automobile was frequently parked in front of the property, was information arguably available to anyone who knew appellant. Moreover, Detective Greenwalt’s knowledge that appellant was previously involved in drug activities in 1981 and 1985 does not justify a conclusion that appellant was again involved in drug operations in 1987. In other words, the nature of the additional facts told to Detective Greenwalt by the informant does not create or support a valid premise for reasonable suspicion of criminal activity by appellant. Thus, even if the factual circumstances in the case at bar were in accordance with a Terry stop, the police could not point to any articulated facts to premise the investigative stop of appellant’s automobile other than the informant’s unsupported allegation that appellant was carrying P.C.P.

In conclusion, we hold that police may not conduct a valid investigative stop based solely on a confidential informant’s isolated and uncorroborated allegation that a particular individual is in possession of drugs. We do not imply that confidential information may not buttress a police officer’s foundation for an investigative stop in situations where the officer can point to specific and articulated facts. However, in the absence of exigent circumstance, admittedly not present here, unsupported allegations by informants that certain individuals possess drugs which do not rise to the level of probable cause for a search warrant, may not be utilized by the police five (5) hours later to justify an investigative stop on a person’s private property.

Judgment reversed. Jurisdiction relinquished.

TAMILIA, J., files a dissenting opinion.

TAMILA, Judge,

dissenting:

I respectfully dissent. While much of what the majority concludes is correct, it errs when it refuses to acknowledge that information which might not support probable cause for a search warrant, when enhanced by surveillance and verification, will support a later arrest. This procedure is not at all uncommon and the majority’s holding, if universally applied, will hamstring police in effectively dealing with the highly mobile and pervasive traffic in drugs.

Once the police verified the activity, information of which was supplied by the informant, they were permitted to make a Terry type stop based on suspicion alone. Following the stop, upon detecting the odor of P.C.P. in the car, they were permitted to go further and pat down the persons for safety reasons. When the pat down disclosed packets, these were not to be ignored and their emission of the odor of P.C.P. entitled the police to proceed further with a more extensive search and arrest.

I would affirm the trial court and deny appellant’s request for a new trial.

      . Appellant was sentenced to imprisonment in a state correctional institution for a period of not less than two and one-half years nor more than five years for possession with intent to deliver a controlled substance. For the purposes of sentencing the charge of possession of a controlled substance merged with the charge of intent to deliver a controlled substance.

      . The trial judge mistakenly indicates in his March 28, 1988 opinion that appellant was found guilty of possession of drug paraphenalia.

      . Detective Greenwalt testified that he returned a telephone call from the informant in the “early evening hours” of January 15, 1987. (N.T. Suppression Hearing, p. 6) He proceeds to testify that a “couple of hours” elapsed from when he received the informant’s telephone call and set up surveillance at 11 p.m. of 115 Saude Avenue. (N.T. Suppression Hearing, p. 10) As such, the testimony reveals a wide discrepancy regarding the actual time the police received the informant’s tips. However, according to the trial court, the tip was received “during the early evening hours of January 15, 1987.” (Trial Court Opinion, March 28, 1988, p. 2)

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: DEL SOLE, Judge:

text:
    559 A.2d 936
    COMMONWEALTH of Pennsylvania v. Gregory S. ARTHUR, Appellant.
    Superior Court of Pennsylvania.
    Argued December 1, 1988.
    Filed May 10, 1989.
    Reargument Denied June 26, 1989.

      Gary F. Selway, Greensburg, for appellant.
    William C. Gallishen, Assistant District Attorney, Greens-burg, for Com., appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

In this appeal we are asked to review the propriety of a sentence directing the surrender and destruction of a firearms collection which was not used in the commission of the crimes for which Appellant was convicted. We reverse.

Appellant was sentenced to a total of seven (7) years probation, fined seven-hundred and fifty dollars, ($750.00), with additional costs, and ordered to surrender for destruction his gun collection, following a conviction for corrupting minors, reckless endangerment of another person, and criminal mischief.

The conviction resulted from an incident on Halloween in which Appellant stopped a group of boys near his home and after talking with them produced a .44 caliber pistol, waived the pistol at the boys and specifically pointed it at one boy. Then Appellant showed the boys how to place dog feces in a paper bag, make a wick, and light it. After showing them this “trick”, Appellant once again waved the pistol at the boys and then pointed the pistol specifically at a second boy’s head.

After a jury trial and sentencing, a petition to modify sentence was filed by Appellant’s new attorney. In this petition, Appellant stated that he was indigent and “in need of the proceeds for the sale of said firearm [sic],” and therefore, he requested that the part of the sentencing order providing for the “confiscation and destruction of a firearm [sic]” be modified.

On appeal, Appellant claims through new counsel, that his sentence, which results in the forfeiture of his firearms collection, was illegal and unconstitutional under Article 1, Subsection 9 of the Pennsylvania Constitution. He also contends that despite his failure to raise this issue in his petition to modify sentence, it has not been waived.

It is well settled that a challenge to the legality of a sentence can never be waived. Commonwealth v. Eliason, 353 Pa.Super. 321, 509 A.2d 1296, 1298, n. 3 (1986); Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985). However, we need not decide if the confiscation of personal property, not contraband, without compensation is such an illegal, unwaivable sentence, which violates the Appellant’s due process rights under the Pennsylvania Constitution. Instead we accept Appellant’s alternative position that Appellant’s post-trial counsel was ineffective for failing to raise and preserve this challenge to Appellant’s sentence.

Ineffectiveness claims are measured by two components. First, counsel’s performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit. Second, we require that the defendant demonstrate how the ineffectiveness was prejudicial. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987).

Turning to the merits of the claim that the sentence was illegal, we first note that the trial court did not order the forfeiture of the pistol actually used in the crime, rather as the court stated, “[T]he pre-sentence investigation shows that you have a collection of firearms. I direct those be surrendered to the appropriate police authorities and that they be destroyed.” (N.T. Sentencing, April 20, 1988 at 7-8). Therefore, the narrow issue is whether it was illegal for the sentencing court to order the confiscation and destruction of firearms not used in the crime.

The Commonwealth argues that the court had the power and authority to order the forfeiture of the gun collection on two grounds; first, statutory authority, under 42 Pa.C. S.A. § 9754, (Sentencing Code), and second, the common law power of a court to order confiscation of “derivative” contraband.

42 Pa.C.S.A. § 9754(c)(7) states that, “a court may as a condition of its order of probation require the defendant to have in his possession no firearm or other dangerous weapon unless granted written permission.” Section (c)(13) states that the court may require the defendant to “satisfy any other condition reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.” The Commonwealth claims that these provisions of the Sentencing Code provide statutory authority for the sentence imposed. However, we do not find any language in this statute which authorizes such confiscation without compensation. In fact, the procedure for disposal of prohibited firearms is simply not specified, nor is there any indication, either in statutory or case law, whether a defendant must sell the firearms, give them away, or surrender them for destruction.

More fundamentally, such confiscation violates Appellant’s right not be deprived of his property without due process of law or its legal equivalent under the Pennsylvania Constitution, “the law of the land.” Pa. Const. Art. 1 § 9; Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985), affirmed 517 Pa. 192, 535 A.2d 575 (1987). Eiffert v. Pennsylvania Central Brewing Co., 141 Pa.Super. 543, 15 A.2d 723 (1940). The foundation of due process is the protection of the individual from arbitrary action of the government. Commonwealth v. Hernandez, 339 Pa. Super. 32, 488 A.2d 293, 299 (1985). Although we agree that there is statutory authority as well as reasonable policy arguments for requiring Appellant as a condition of probation to refrain from possessing firearms, the uncompensated confiscation and destruction of Appellant’s property is purely arbitrary and lacks such statutory authority and reasonableness.

The Commonwealth argues that contraband and derivative contraband may be confiscated without explicit statutory authorization and on this basis the court’s action could be sustained. The Commonwealth cites, Estate of Peetros v. County Detectives, 341 Pa.Super. 558, 492 A.2d 6 (1985), and Commonwealth v. Coghe, 294 Pa.Super. 207, 439 A.2d 823 (1982) as authority for this proposition. Although it is unclear at best whether these cases rely upon statutory authority, more importantly, the firearm collection does not constitute derivative contraband, as defined in these same cases. Derivative contraband is property, not inherently illegal, but which is used in the perpetration of an unlawful act. Id., 294 Pa.Superior Ct. at 209, 439 A.2d 823. It has never been claimed that the gun collection was used in the underlying crime or in the perpetration of an unlawful act. Therefore, it is not derivative contraband subject to forfeiture.

Given that there is neither statutory or decisional authority to order confiscation and destruction of Appellant’s property which was not used in the underlying crime, we hold that there is merit to the claim and there was no reasonable basis for counsel to have failed to challenge this forfeiture. Furthermore, the resulting prejudice is clear. We therefore vacate the sentence, and remand for a new sentencing hearing. At that time the trial court may, if it chooses, impose as a condition of probation that Appellant must not have any guns in his possession. Furthermore, while § 9754(c)(7) grants to the sentencing judge the discretion to impose such a condition of probation, it does not authorize as a condition of probation the transfer of title or ownership of firearms. The legislature has given to the sentencing judges the authority to ensure that during a probationary period the accused does not have possession of firearms. However, the legislature has not authorized the divestiture of ownership of firearms during probation. Thus, the trial court has the discretion only to direct the manner in which possession of a firearm shall be transferred out of Appellant, and may not make any order which would affect any other aspect of Appellant’s ownership of the property.

Judgment of sentence vacated and the matter remanded to the trial court for resentencing in accordance with this Opinion.