author: HUDOCK, Judge:

text:
    583 A.2d 500
    COMMONWEALTH of Pennsylvania, Appellee, v. Willie SUTTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 4, 1990.
    Filed Dec. 18, 1990.

      Peter Rosalsky, Asst. Public Defender, Philadelphia, for appellant.
    Hugh Burns, Jr., Asst. District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and HUDOCK, JJ.
   HUDOCK, Judge:

This direct appeal is from the judgment of sentence imposed upon Appellant, Willie Sutton (hereinafter “Appellant”). We vacate and remand for resentencing.

On May 31, 1985, while escaping the robbery of a Philadelphia bank, Appellant shot Police Officer Joseph Corvi in the right side of the skull. On March 14, 1989, Appellant pled guilty to aggravated assault (the shooting of Officer Corvi), aggravated assault (the firing on a second officer), and possession of an instrument of crime. Appellant was sentenced to ten to twenty years for the first offense, a consecutive two to five years for the second, and a concurrent two to five years for the last offense.

Appellant filed an appeal, claiming that a ten to twenty year sentence for aggravated assault was constitutionally excessive. This is so, he contended, because it exceeds the maximum possible sentence for attempted murder, which, in Appellant’s opinion, is more serious as an offense than aggravated assault. As a result, Appellant challenged the constitutionality of the sentencing statute, predicating his attack on the following theories: Federal and state equal protection, the federal proscriptions against cruel and unusual punishment, and due process.

In its Letter Brief of August 21, 1990, the Commonwealth, upon study of Appellant’s subsequent petition to file a supplemental brief, conceded that the sentence on appeal must be vacated for the following reasons:

[Appellant] correctly alleges that his offense was committed on May 31, 1985, at which time the highest grade of aggravated assault was a second degree felony. [Appellant] was a fugitive until 1988; 18 Pa.C.S.A. Section 2702(a)(2) had been amended in February, 1987, and upgraded to a first degree felony. Since the upgrading of the offense from a second degree to a first degree felony occurred after the crime, it was inapplicable to [Appellant], and the maximum sentence [Appellant] could face was five to ten years. The ten to twenty term actually imposed on Bill 2375 was accordingly outside statutory authority. Since the defect is clear, it is not necessary for [Appellant] to file an additional brief. Commonwealth Letter Brief of August 21, 1990, pp. 1-2.

An address of the balance of Appellant’s arguments is, as such, clearly unnecessary. Nevertheless, the Commonwealth’s concession does not entirely dispose of this matter. While the Commonwealth does advocate remand, in accordance with Appellant’s understanding of his case, it also argues—contrary to Appellant’s point of view— that “the sentences on all bills should be vacated and the case remanded for resentencing.” Commonwealth Letter Brief of August 21, 1990. Appellant, on the other hand, urges that “[w]here this court vacates an illegal sentence after the filing of an appeal on that information, it is improper to vacate other sentences which are not before it, in order to allow resentencing on those unappealed informations.” Appellant’s Supplemental Brief, at p. 14. We disagree.

The Commonwealth draws our attention to Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987), wherein our Supreme Court essentially held that the proscriptions against double jeopardy do not prevent us from remanding for resentencing on all bills of information where our vacation of various related counts has upset the trial court’s sentencing scheme. Appellant seeks to undermine the instant application of Goldhammer by stressing the fact that “[i]n the case at bar, [Ajppellant appealed only one Information (No. 2375 October Session, 1988), and the Commonwealth never appealed any other Information.” Appellant’s Supplemental Brief, pp. 18-19. We do not find this distinction to be dispositive, and believe that the underlying rationale of Goldhammer is equally applicable.

The counts which Appellant was convicted of are self-evidently interdependent. See, e.g., White v. State, — Del. -, 576 A.2d 1322 (1990). “When a defendant challenges one of several interdependent sentences, he, in effect, challenges the entire sentencing plan.” Goldhammer, at 593, 517 A.2d at 1283 (citing United States v. Busic, 639 F.2d 940, 948 (1981), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422). Any expectation of finality in Appellant’s original sentencing scheme was subverted by the appeal which he filed. See, e.g., White, supra. Remand for resentencing on the sole count of aggravated assault for the shooting of Officer Corvi would clearly upset the trial court’s ability to effectuate its original sentencing scheme. We decline the invitation to stress what is conceivably a resourceful procedural strategy on Appellant’s part, and thereby assist in the erosion of this ability. Moreover, we emphasize that no double jeopardy violation is implicated where the aggregate sentence upon resentencing does not exceed the original aggregate sentence. See, Commonwealth v. Walker, 390 Pa.Super. 76, 87-88, n. 5, 568 A.2d 201, 207, n. 5 (1989).

The judgment of sentence is vacated and the case is remanded for resentencing consistent with this Opinion. Jurisdiction relinquished.

      . The Commonwealth develops this position more thoroughly in its Letter Brief of August 31, 1990.

      . Our Supreme Court elaborated:
      The power to grant the relief sought by the Commonwealth is vested in our appellate courts by virtue of 42 Pa.C.S.A. § 706 ... Certainly a remand to reconsider a sentence, where the disposition by an appellate court has altered the sentencing scheme of the trial court, is within the purview of this statutory provision. Where one, convicted of several crimes, successfully challenges his judgment of sentence on appeal, remand for resentencing "may be just under the circumstances,” as it may further the sentencing court’s plans for protection of society from future criminal activity and rehabilitation of the criminal and “reduce the possibility of disparate and irrational sentencing.” [Citation omitted]. Goldhammer, at 593, 517 A.2d at 1283.
      42 Pa.C.S.A. § 706 provides:
      An appellate court may affirm, modify, vacate, set aside or reverse any order brought before it for review, and may remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances.

      . The defendant in Goldhammer appealed all of the informations against him.

      . See, e.g., the somewhat analogous case of Commonwealth v. Vanderlin, 398 Pa.Super. 21, 580 A.2d 820 (1990), wherein a trial court realized that it had illegally sentenced defendant for attempted rape, and then sua sponte decreased the attempted rape sentence, while increasing a consecutive sentence for attempted involuntary deviate sexual intercourse. Defendant, alleging a violation of his double jeopardy protections, stressed that he requested modification of the attempted rape sentence alone. Our court, inter alia, noted that the court altered the sentence on its own initiative (i.e. not in response to defendant’s request for modification), and, citing Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979), intimated that the trial court would have sentenced Vanderlin differently had it known that one of its sentences was illegal. Defendant’s double jeopardy arguments failed, and we recognized the court’s authority to re-structure its entire sentencing scheme.

      . It is axiomatic that our holding applies with equal force to a situation where the Commonwealth appeals only that portion of a multi-count sentence where the trial court failed to impose a mandatory minimum sentence. On appeal, the matter would be remanded for the imposition of the mandatory minimum sentence, and, if the sentences on the remaining counts were not also vacated, the defendant could suffer imposition of a far greater total sentence than the sentencing court may have imposed had it originally imposed the mandatory sentence on the one count. In such case, the sentencing scheme would have been seriously upset to a defendant’s detriment.

      . Under certain circumstances, it has even been held that the proscriptions against double jeopardy were not violated where the aggregate sentence was increased upon resentencing. Id.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    583 A.2d 796
    TONY SAVATT, INC. v. LATROBE BREWING CO., Labatt Importers, Inc., Labatt’s U.S.A., Inc., and John P. O’Connell, Appellants.
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1990.
    Filed Nov. 2, 1990.
    Reargument Denied Jan. 14, 1991.

      Peter Hearn, Philadelphia, for appellants.
    Jon G. Hogue, Pittsburgh, for appellee.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

This is an appeal from a final decree issued pursuant to the 1980 amendments to the Liquor Code enjoining appellant Latrobe Brewing Company/Labatt’s U.S.A. (Latrobe) from terminating Tony Savatt, Inc. as its primary distributor within Savatt’s territory. We decide that the contract at issue constituted Savatt as primary distributor, and that therefore the “good cause” requirement for termination of a primary distributor mandated in the Liquor Code at 47 P.S. § 4-431(d)(l) was not applied retroactively to this case. We also decide that the good cause for termination requirement is not an unconstitutional exercise of the police power of the Commonwealth to regulate sales of liquor. Hence, we affirm.

Savatt has been a beer distributor in Allegheny County since 1935. Latrobe is a manufacturer of malt or brewed beverages, principally Rolling Rock beer. In 1939 Latrobe formed Rock Beer Distributing Company as the primary distributor for Rolling Rock beer in Allegheny County. In 1977, the owner of Rock Beer Distributing divided his Allegheny County customers geographically into two groups and sold the rights to service these groups to two different entities, one of which was Savatt. It is not disputed that between 1977 and 1980, Savatt served as Latrobe’s exclusive distributor in the territory which it had purchased from Rock Beer Distributing; Latrobe sold beer only to Savatt in the territory, and Latrobe gave instructions to customers in Savatt’s territory that those customers must buy only from Savatt.

In 1980 the general assembly amended the Liquor Code by structuring the relationship between brewers and beer distributors:

All distributing rights as hereinabove required shall be in writing, shall be equitable in their provisions and shall be substantially similar as to terms and conditions with all other distributing rights agreements between the manufacturer giving such agreement and its other importing distributors and distributors shall not be modified, can-celled, terminated or rescinded by the manufacturer without good cause____

47 P.S. § 4-431(d)(l). The amendments provided, in addition, that:

The provisions of this subsection shall not apply to Pennsylvania manufacturers whose principal place of business is located in Pennsylvania unless they name or constitute a distributor or importing distributor as a primary or original supplier of their products subsequent to the effective date of this act, or unless such Pennsylvania manufacturers have named or constituted a distributor or importing distributor as a primary or original supplier of their products prior to the effective date of this act, and which status is continuing when this act becomes effective.

47 P.S. § 4-431(d)(5). The amendments gave the courts of common pleas the power to enjoin the modification, recision, cancellation or termination of an agreement between a manufacturer and distributor if the manufacturer’s action adversely affects the distributor. 47 P.S. § 4-431(dX4). These amendments were signed into law on June 22, 1980, to become effective in sixty days. They became effective on August 21, 1980. See 1 Pa.C.S. § 1908, Computation of Time.

In 1980, after passage of the amendments, Latrobe became concerned about its ability to “come up with meaningful territorial descriptions” of each distributor’s responsibility in the sixty-day period between passage and the effective date of the amendments. Testimony of James L. Tito, Vice-President, Latrobe Brewing Company, N.T. at 47. Latrobe was concerned that the effect of the act would be to freeze overlapping territories in place; it was not concerned with assuming primary distributorship themselves: “[w]e had no intention of selling direct at any time.” Id. As an “aborted attempt,” N.T. at 44, to deal with the territory problem in the context of the new amendments, Latrobe drew up a form agreement providing that “this writing names and constitutes [name of distributorship] as a secondary importing distributor ... for our Rolling Rock Premium Beer.” Latrobe sent this agreement to each of its primary distributors in Pennsylvania. N.T., March 21-22, 1989 at 18-19. The specific agreement between Latrobe and Savatt was executed on August 21, 1980.

Notwithstanding the agreement’s language, Latrobe assured Savatt both orally and in writing that the agreement would effect no change in their actual relationship and that their business relationship would proceed as before with Savatt as primary distributor in fact. N.T., March 21-22, 1989 at 25-32, 61-62; letter of August 6, 1980 from James L. Tito, Vice President, Latrobe Brewing Company. Latrobe continued to sell its beer only to Savatt when selling within Savatt’s territory, continued to instruct customers located in the territory to buy only from Savatt, and made no direct sales itself within the territory. N.T. at 34, 55-56, 61-62, 81, 108. On October 7, 1987, John Labatt, Inc. acquired Latrobe from Sundor Group Insurance. Following this, Savatt once more was assured by the new ownership that nothing would change with regard to its distribution relationship with the brewer. N.T., at 81-82. On July 28, 1988, Labatt hand-delivered a letter to Savatt terminating Savatt's right to distribute Rolling Rock beer. N.T., at 84-86.

Savatt commenced this action in equity on August 12, 1988 seeking to enjoin its termination as a distributor of Rolling Rock beer. On February 21, 1989 a special injunction was entered with the parties’ consent. Savatt then requested a preliminary injunction which the court denied because Savatt failed to demonstrate that he would incur irreparable harm without it. On July 11, 1989, the Honorable John L. Musmanno conducted a final hearing and on August 2, 1989 issued an Adjudication and Decree Nisi granting Savatt a permanent injunction. On November 8, 1989 the court entered the final decree from which Latrobe now appeals.

Latrobe avers that the chancellor improperly concluded that Savatt had been “named and constituted” as a primary distributor under its 1980 contract with Latrobe. In the alternative, Latrobe contends that, assuming that Savatt was designated a primary distributor, the court improperly applied the good cause for termination requirement retroactively, causing an unconstitutional interference with the contract. Latrobe further argues that, should we find that Savatt was constituted as a primary distributor and if we should find no retroactive application, the “good cause” requirement is, in itself, an unconstitutional exercise of the Commonwealth’s police power.

Our scope of review on an appeal from a final decree upholding the grant of a permanent injunction is limited. We are bound to accept the chancellor’s findings of fact and accord them the weight of a jury verdict where supported by competent evidence. We are not, however, bound by conclusions drawn from these facts or by legal conclusions and may reverse for abuse of discretion or error of law. Den-Tal-Ez, Inc., v. Siemens Capital Corporation, 889 Pa.Super. 219, 566 A.2d 1214 (1990). Concluding that competent evidence supported the chancellor’s findings and that he properly applied the law to these facts, we affirm the order upholding the injunction.

Preliminarily, we decide that the Liquor Code amendments at issue do not unconstitutionally overstep the Commonwealth’s police power to regulate the sale of liquor. A strong presumption of constitutionality attaches to acts of the General Assembly, and a heavy burden of persuasion falls on the party seeking to rebut the presumption. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986). Most important, control of the sale and use of alcoholic beverages is absolutely within the police powers of the Commonwealth. Commonwealth, Liquor Control Board v. Starr, 13 Pa.Commw. 415, 318 A.2d 763 (1974), affirmed 462 Pa. 124, 337 A.2d 914 (1975). An individual has no constitutional right to engage in the business of selling alcoholic beverages in the Commonwealth; therefore, the conduct of the liquor business in the Commonwealth is lawful only to the extent and manner permitted by statute. Replogle v. Commonwealth, Pennsylvania Liquor Control Board, 514 Pa. 209, 523 A.2d 327 (1987).

The Twenty-first Amendment to the United States Constitution, which repealed the Eighteenth Amendment, also established broad authority in the states to regulate, limit and absolutely prohibit traffic of any kind in alcoholic beverages within their boundaries. Replogle, 514 Pa. at 214, 523 A.2d at 330:

While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals.

California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342, 349-350 (1972), rehearing denied 410 U.S. 948, 93 S.Ct. 1351, 35 L.Ed.2d 615 (1973). In no other area is a state’s exercise of its police power more plenary than in the regulation and control of the use and sale of alcoholic beverages. In re Tahiti Bar, Inc., 395 Pa. 355, 150 A.2d 112 (1959), appeal dismissed by Tahiti Bar, Inc. v. Pennsylvania Liquor Control Board, 361 U.S. 85, 80 S.Ct. 159, 4 L.Ed.2d 116 (1959).

The purpose of enacting liquor regulation legislation has always been to restrain and to discourage the sale of liquor, not to promote it. Commonwealth, Pennsylvania Liquor Control Board v. Backer, 118 Pa.Commw. 378, 537 A.2d 100 (1988). As remedial civil legislation, the Liquor Code is to be liberally construed to effectuate its purpose to protect public health, welfare, peace and morals. 47 P.S. § l-104(a); Slovak-American Citizens Club of Oakview v. Commonwealth, Pennsylvania Liquor Control Board, 120 Pa.Commw. 528, 549 A.2d 251 (1988). In other words, the Liquor Code is not, as Latrohe characterizes it, a generic economic regulation of the relationship between contracting parties. Rather, it is an exercise of police power for the protection of the public welfare based upon the constitutional delegation to the states of plenary power to control the sale and use of alcoholic beverages.

The Pennsylvania Supreme Court has articulated two views regarding the proper constitutional analysis for reviewing a claim that a provision of the Liquor Code is unconstitutional. In Pennsylvania Liquor Control Board v. SPA Athletic Club, 506 Pa. 364, 485 A.2d 732 (1984), the court reviewed the Liquor Code restrictions under the lowest level of scrutiny under a Fourteenth Amendment analysis, whether there is a rational basis for the regulation at issue. In Replogle v. Commonwealth, Pennsylvania Liquor Control Board, our Supreme Court, noting that “[a] classification recognized by the Twenty-First Amendment cannot be deemed forbidden by the Fourteenth^]” California v. LaRue, 409 U.S. at 115, 93 S.Ct. at 395, 34 L.Ed.2d at 350, saw no need for any kind of Fourteenth Amendment analysis and simply found that the regulation at issue was a valid exercise of the Commonwealth's police powers.

Assuming that we must find a rational basis for the good cause for termination requirement, we conclude that such a basis exists. “This deferential standard mandates only that the statutory classification be ‘reasonable’ and ‘rest upon a difference having a fair and substantial relation to the object of the legislation.’ ” Estate of Cox, 327 Pa.Super. 479, 487, 476 A.2d 367, 371 (1984) (citations omitted). The good cause requirement for termination articulated in 47 P.S. § 4-431(d)(l), along with the other requirements in that section, is designed to eliminate favoritism by manufacturers toward certain distributors, so as to prevent unfair competition. Centre Beverage Company, Inc., v. Miller Brewing Company, 779 F.2d 168 (3d Cir.1985).

Unlike the overly specific liquor code provision successfully challenged in United States Brewers’ Association, Inc., v. State, 192 Neb. 328, 220 N.W.2d 544 (1974), a case cited by Latrobe, the provision at issue here is both reasonable and rational. “Good cause” is broadly defined as “the failure by any party to an agreement, without reasonable excuse or justification, to comply substantially with an essential, reasonable and commercially acceptable requirement imposed by the other party under the terms of an agreement.” 4-431(d)(l). This requirement is appropriate to address the legislature’s desire to prevent termination for the sole purpose of controlling the market, e.g., for price-fixing purposes. We agree with the trial court that, considering the broad and reasonable definition of good cause, it does not impose an undue burden for brewers to fulfill. Given that the general purpose of the Liquor Code is to restrain and discourage the sale of liquor, not to promote it, that the states’ police power is plenary in liquor regulation, and that the Code is not a mere general economic regulation, we conclude that Latrobe has not sustained its burden of persuading us that § 4-431(d)(l) is unreasonable, unduly oppressive, or unrelated to the legislative purpose. Where a legitimate purpose has been identified and a rational relationship between that purpose and the means chosen to foster it has been established, our inquiry into whether the statute violates the equal protection clause is at an end. Cox, supra. We hold that 47 P.S. § 4-431(dXl) is constitutional.

Next, we agree with the chancellor that the August 21, 1980 contract between Latrobe and Savatt “named and constituted” Savatt as a primary distributor, despite the language in the written agreement. Adjudication and Decree Nisi, August 2, 1990, Conclusions of Law numbers 10 and 11. We addressed this precise issue in Matt Lamb & Sons, Inc. v. Christian Schmidt Brewing Company, 336 Pa.Super. 341, 485 A.2d 836 (1984). In Matt Lamb, Schmidt, a Pennsylvania brewer, in anticipation of the new amendments, executed an agreement with Lamb, the distributor, on August 27, 1980 “designating Lamb as a ‘secondary importing distributor’ of Schmidt’s products, and designating itself as primary or original supplier of Schmidt’s products.” Matt Lamb, 336 Pa.Super. at 347, 485 A.2d at 839. The chancellor found that Lamb executed the agreement with the belief that it would not change its business relationship with Schmidt. As in the present case, the parties had had a relationship in which Lamb had been a primary distributor, and, after the new agreement, which had been formulated in response to the new amendments, the relationship did not change substantively. After the agreement, Lamb continued to purchase Schmidt’s products directly from Schmidt, and to the knowledge of Lamb’s president, Schmidt did not sell directly to any other purchasers in Lamb’s territory.

Subsequently, Schmidt sought to terminate Lamb as distributor. Relying upon the principle that the performance of the parties under an agreement is the strongest indication of what a writing means, Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 786 (1978), we affirmed the chancellor’s finding that the letter agreement had no effect on the status of Lamb as primary distributor:

We would accept [Schmidt’s] argument and grant them the literal meaning of their August 11, 1980 letter, if the letter did accomplish what it claimed. However, even Schmidt agrees that the relationship between the parties was substantially the same prior to and after the letter, which Lamb signed in acceptance. Lamb, in fact, testified that he accepted the purported new arrangement only because of assurances that it would not change things.

Matt Lamb, 336 Pa.Super at 350, 485 A.2d at 836. We held that because Lamb continued to purchase products directly from Schmidt with virtually no change in the parties’ relationship, despite the designation of Lamb as a “secondary importing distributor,” Lamb continued to be “named and constituted” a primary distributor by Schmidt, thus triggering the “good cause” requirement for termination. The same fact pattern pertains in our case. Latrobe’s officers testified that the relationship between the parties was the same prior to and after the agreement and that Latrobe assured Savatt that this relationship would remain the same. Savatt entered into the agreement only because of these assurances, which he specifically sought. The chancellor’s conclusion that Savatt was never “named and constituted” a secondary distributor is based upon competent evidence.

Having decided that the agreement at issue, which was executed on the day that the amendments became effective and which was drafted in response to the amendments, constituted Savatt as a primary distributor, we reject Latrobe’s argument that the “good cause” for termination requirement has been applied retroactively where retroactive application would work a due process violation and that was not expressly intended by the general assembly. Prior to the effective date of the amendments, a brewer could terminate a distributor without notice and without cause shown. The amendments imposed upon out-of-state brewers the good cause for termination of distributor requirement but exempted in-state brewers unless the brewer constituted the distributor as primary, or unless the Pennsylvania brewer had constituted the distributor as primary before the effective date of the amendments, and this status continued when the amendments become effective.

In Rudolph Rosa, Inc. v. Latrobe Brewing Company, 347 Pa.Super. 551, 500 A.2d 1194 (1985) Latrobe had constituted Rosa as a secondary distributor pursuant to the amendments. That Rosa was a secondary distributor was not at issue. Pursuant to 4-431(d)(5), then, Latrobe was exempted from the good cause requirement with regard to terminating Rosa, which Latrobe then did without cause. Rosa argued that 47 P.S. § 4-492(19) (effective August 22, 1980), which makes it unlawful for a manufacturer to terminate a distributor without good cause, overrides the 4-431(d)(5) exemption. The narrow issue before us was whether the legislature intended § 4-492(19) to reinstate the “for cause” requirement to situations that it had specifically exempted from this requirement in § 4-431(d)(5). Rosa, 347 Pa.Super. at 561, 500 A.2d at 1199. We held that this interpretation of the purpose of § 4-492(19) would effect an impermissible retroactive application of the good cause requirement upon the “secondary distributor” contract formed pursuant to 4-431(d)(5), absent express legislative intent, which we found lacking.

Rosa does not and could not stand for the general proposition that any retroactive application of the Liquor Code amendments is constitutionally prohibited. First, the legislature, in § 4-431(d)(5), provided a specific retroactive application of the good cause requirement: if a distributor had been primary before the amendments, and this relationship continued beyond the effective date of the amendments, then the good cause requirement applies to the contract, even though it was formed years before the amendments were contemplated. As we pointed out in Rosa, in postponing the effective date of the amendments for sixty days, the legislature gave brewers notice and opportunity to bring their distributor contracts in line with the statute. Rosa, 347 Pa.Super. at 563, 500 A.2d at 1200. During the sixty days, brewers could either re-classify a distributor from primary to secondary, which would manifest an intent to take advantage of the exemption, or they could continue their relationship with the primary distributor as primary distributor, thus manifesting an intent to assume the burden of the good cause requirement.

In any event, retroactive application in general is not per se prohibited. It is prohibited only if it offends due process, and it offends due process only if, balancing the interests of both parties, the application would be unreasonable. Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983). The retroactive application is unreasonable only if it impairs a vested right. Id. If, as is true in the field of liquor regulation, there is no constitutional right to engage in the liquor business, the conduct of which is lawful only to the extent permitted by statute, the concept of retroactivity that takes away a right has no application. As we quoted above, “[a] classification recognized by the Twenty-First Amendment cannot be deemed forbidden by the Fourteenth[,]” California v. LaRue, 409 U.S. at 115, 93 S.Ct. at 395, 34 L.Ed.2d at 350.

The evidence amply supported the finding that Latrobe intended that Savatt remain a primary distributor pursuant to the new contract initiated with Savatt. Latrobe may not have it both ways by having Savatt believe that the contract continued his status as a primary distributor while at the same time allowing Latrobe to terminate Savatt because of what amounts, after considering the expressed understanding between the parties and the course of dealing, to an empty technicality. Although Latrobe alleges that the distributorship contract in Rosa is from the same batch of letter agreements drafted by Latrobe for its distributors as was signed by Savatt in this case, this allegation, even if true, would not mandate the same result, as Latrobe suggests. Rosa’s status as primary or secondary distributor was not at issue, and, without discussing the facts underlying the new contract, we assumed that Latrobe intended to designate and succeeded in designating Rosa as a secondary distributor. Rosa, 347 Pa.Super. at 557, 500 A.2d at 1197. Nothing in Rosa conflicts with our decision today that Savatt was actually constituted as primary distributor and that the amendments have not been applied retroactively.

For all the foregoing reasons, we affirm the order of the trial court issued pursuant to 47 P.S. § 4-431(d)(4) enjoining Latrobe from terminating its relationship with Tony Savatt Distributors.

Order affirmed.


author: OLSZEWSKI, Judge:

text:
    583 A.2d 803
    Louane M. YOUNG, Administratrix of the Estate of Aaron J. St. Onge, Deceased, and All Others Similarly Situated, Appellants, v. DONEGAL MUTUAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1990.
    Filed Nov. 9, 1990.
    Reargument Denied Jan. 14, 1991.

      Pamela G. Shuman, Harrisburg, for appellants.
    Robert E. Kelly, Jr., Harrisburg, for appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order of the Court of Common Pleas of Dauphin County granting the defendant’s, Donegal Mutual Insurance Company (“Donegal”), motion for summary judgment and dismissing the request of plaintiff’s counsel for attorneys’ fees for services rendered in settling after-discovered claims pursuant to the No-fault Act, 40 P.S. § 1009.101, et seq. (repealed). The trial court found a stipulation entered into by the parties to be unambiguous and to require dismissal of the request for attorneys’ fees. Finding the contract to be ambiguous, we vacate and remand for further consideration.

This dispute arises from a stipulation entered into by the parties as part of the settlement of a class-action suit brought to recover post-mortem work loss benefits, interest and attorneys’ fees from Donegal pursuant to the No-Fault Act. The stipulation settled the claims arising from three subclasses. At issue here is whether Angino & Rovner, P.C. (A & R), counsel for the class plaintiffs, is entitled to recover attorneys’ fees for services rendered in the subsequent settlement of after-discovered claims which fit the settled subclasses.

The relevant portions of the stipulation are:

5 d. After Discovered Members The parties agree to attempt to resolve and settle the claims of persons hereinafter identified as potentially within the scope of the three above identified subclasses under terms and conditions substantially similar to that set forth in this Stipulation of Settlement
* * ii<
5 e. Attorney’s Fees
In consideration of the time and effort expended by counsel for the Plaintiffs and in accordance with Section 106(b)(1) of the No-Fault Act, Donegal agrees to pay Plaintiffs’ counsel fifty-five thousand ($55,000.00) dollars in partial payment of attorney’s fees and costs on behalf of all three (3) settling subclasses ... and in no event shall Donegal Mutual be obligated to pay attorney’s fees and costs in excess of fifty-five thousand ($55,000.00) dollars ...

Reproduced record at 81-82a.

The trial court found the language of Para. 5(e) of the stipulation to be unambiguous and to mandate dismissal of A & R’s request for counsel fees to be assessed against Donegal in relation to the settlement of the after-discovered claims. Trial court opinion at 2. We disagree for the reasons set forth below.

Summary judgment is only proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b), 42 Pa.C.S.A. The movant must demonstrate that no genuine factual issues exist and that he is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 200-201, 412 A.2d 466, 468-469 (1979). An appellate court must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences. Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 298, 467 A.2d 330, 333 (1983). All doubts as to the existence of a genuine issue of material fact must be resolved against the movant, as summary judgment is only proper in the clearest case. Thompson Coal, supra, 320 Pa.Superior Ct. at 200-201, 412 A.2d at 468-469.

The basic principles of Pennsylvania contract law applicable to this dispute are simply stated. Where the language of a contract is clear, its meaning must be determined by the expressed terms only. Steuart v. McChesney, 498 Pa. 45, 47, 444 A.2d 659, 661 (1982). A contract is to be interpreted as a whole to give effect to all of its provisions. Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 370, 390 A.2d 736, 739 (1978). A contract is not ambiguous if the court can determine its meaning even though the parties do not agree upon a proper interpretation. Vogel v. Berkley, 354 Pa.Super. 291, 297, 511 A.2d 878, 881 (1986). An ambiguous contract is to be interpreted in light of the surrounding circumstances and other extrinsic evidence. Burns Manufacturing Co., Inc. v. Boehm, 467 Pa. 307, 311 n. 3, 356 A.2d 763, 766 n. 3 (1976).

Applying these principles to the instant case, we find that the trial court erred in granting Donegal’s motion for summary judgment. We agree with the trial court conclusion that the reference to “partial payment of attorneys’ fees” in the stipulation is “simply a description of the payment by the defendant in the context of the total fees to be received by plaintiff’s counsel in this action.” Trial court opinion at 2-3. Nonetheless, the trial court opinion does not address the impact of the language in Para. 5(d) of the stipulation on the language it found determinative in Para. 5(e).

The 5(d) language expressly preserves the existence of after-discovered claims and provides that such claims shall be settled under terms “substantially similar” to the claims already settled. The No-fault Act expressly provides that a claim may be discharged by a settlement “ ... upon payment by the restoration obligor of the costs of the proceedings including a reasonable attorney’s fee ... to the attorney ... for the claimant.” 40 P.S. § 1009.106(b)(1) (repealed). A reasonable construction of this paragraph in light of the applicable statute would lead to the conclusion that attorneys’ fees for after-discovered claims would be divided in a manner substantially similar to how fees were split in the stipulation. A & R contends on appeal that this is the unambiguous meaning of the stipulation. We cannot agree, as there is merit to Donegal’s interpretation also.

Donegal contended, and the trial court agreed, that the controlling language is found in Para. 5(e): “... in no event shall Donegal Mutual be obligated to pay attorney’s fees and costs in excess of fifty-five thousand ($55,000.00) dollars.” This language does address the dispute at bar; still, the trial court was not free to disregard the impact of Para. 5(d) on the language of Para. 5(e). Marcinak v. Southeastern Greene School Dist., 375 Pa.Super. 486, 488, 544 A.2d 1025, 1027 (1988). We find that the two clauses, read together, create a doubt as to the existence of an ambiguity whether further attorneys’ fees would be assessed against Donegal if after-discovered claims were settled. All such doubts must be resolved against the party seeking summary judgment. Thompson Coal, supra 488 Pa. at 200-01, 412 A.2d at 468-69. As such a doubt exists, summary judgment was not proper.

A & R encourages this Court to examine extrinsic evidence to resolve this ambiguity. This we will not do. It is true that where a contract is ambiguous, a court should properly inquire as to the extrinsic circumstances to aseertain the meaning the parties intended. Burns Manufacturing, supra 467 Pa. at 311 n. 3, 356 A.2d at 766 n. 3. Both parties below urged that the stipulation was unambiguous and the trial court so found. Trial court opinion at 2. In light of the above holding that the language of the stipulation, read as a whole, is ambiguous, we will refrain from interpreting the contract until the parties have more fully developed the record and the trial court has rendered a decision thereon.

Order of the Court of Common Pleas of Dauphin County granting appellee’s motion for summary judgment is vacated, and this case is remanded for further proceedings in accordance with this opinion. Jurisdiction is relinquished.

      . Para. 5(e) of the stipulation expressly recognizes that settling a claim under the No-fault Act requires the restoration obligor to pay the claimant’s reasonable attorney fees.


author: OLSZEWSKI, Judge: HOFFMAN, Judge,

text:
    588 A.2d 805
    COMMONWEALTH of Pennsylvania v. Curtis BROWN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1990.
    Filed Dec. 3, 1990.

      Allen C. Welch and Andrea I. Konow, Harrisburg, for appellant.
    Joseph H. Kleinfelter, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

In this case, appellant appeals from the judgment of sentence rendered by the Dauphin County Court of Common Pleas, following his conviction for arson endangering property and persons. He challenges the actions of the suppression court and the imposition of an effective sentence of not less than ten years to not more than twenty years for his crimes. We find no error and must affirm.

The factual and procedural history of the case is complex and warrants attention. Appellant, Curtis Brown, was arrested and charged with the crimes of arson endangering property (twelve counts) and arson endangering persons (twelve counts) on March 3, 1988. Appellant was incarcerated in lieu of bail. A preliminary hearing was held in April 1988, and a prima facie case was found with respect to all counts. Mr. Brown was returned to Dauphin County Prison after the hearing.

Appellant filed timely pre-trial motions, including a motion to suppress any statements made to police during custodial interrogation. The Commonwealth also filed a pre-trial motion in the form of a motion to compel discovery of a psychologist’s report. A pre-trial hearing began on August 1, 1988. At the suppression hearing, the following facts were established.

On March 3, 1988, two plain clothes officers from the Pennsylvania State Police approached appellant and identified themselves to him in the City of Harrisburg. Appellant had become a suspect in a series of arson fires in the area. The officers indicated that they wished to speak to appellant about the fires, and then requested that he accompany them to the State Police Barracks. The officers advised appellant that he was not under arrest, and that he was free to refuse to accompany them (N.T. suppression, 18-20).

Appellant agreed to accompany the officers on the five-minute ride. During the ride to the barracks, there was no conversation concerning the case. On arrival, the officers escorted appellant to an interview room. No uniformed officers were present. Trooper Lotwick, one of the officers, produced a standard State Police form with Miranda warnings which he read to appellant. The form had a waiver portion on the bottom. After Trooper Lotwick had read the rights to appellant, he asked appellant if he understood those rights, or if he had any questions about what was happening to him. Appellant indicated that he understood, and that he had no questions (N.T. suppression, 20-24).

After appellant had signed the waiver form, the officers asked whether or not he was responsible for setting any of the fires that had been occurring in the city, and specifically, the fire that occurred at 622 Reily Street. Appellant initially denied any involvement. The police then explained that they had information that a person named “Sarge” was setting the fires, and that they knew that appellant’s nickname was “Sarge.” Appellant acknowledged that his nickname was “Sarge,” and then stated, “I can’t lie to you guys. I set the fire.”

More specifically, appellant acknowledged setting the fire at 622 Reily Street (N.T. suppression, 27-28). Appellant was asked whether he was responsible for setting other fires, and he responded that he had done so, but he could not specify particular addresses. Appellant agreed to accompany the officers in an attempt to identify the properties where he had set fires (N.T. suppression, 29-30).

The officers’ notes revealed that the scenario just described lasted approximately forty minutes. The officers stopped appellant at 2:50 p.m., and administered Miranda warnings at 3:17 p.m. Appellant made an admission at 3:30 p.m. (N.T. suppression, 30). Before returning to Harrisburg, the officers asked appellant to reduce his statement regarding the Reily Street fire to writing. Appellant agreed to do so, and wrote the following: “Curtis Brown, I sit (sic) the fire across the street from the misson (sic) on the second floor.” The statement was signed by appellant. Appellant did not ask for, and was not provided with, any assistance in structuring his statement (N.T. suppression, 32-33).

Officers next contacted Detective Woodring of the Harrisburg Police, with whom they had been working on the arson investigation. They arranged to accompany Woodring on a drive around the city to identify fire locations for which appellant might admit responsibility. Before leaving the barracks, appellant was informed that he was under arrest. Appellant agreed to accompany the officers in viewing fire locations.

Woodring and the officers took appellant to various locations, including some where appellant was not a suspect. In each of those cases, appellant denied involvement with the fires; however, appellant admitted responsibility at eleven other sites. At many of the eleven locations, appellant provided information regarding the manner of entry and the manner in which the fire was started. The trip around the city lasted approximately two hours. (N.T. suppression, 35-37.)

Detective Woodring was called to the stand, and testified that he had recognized appellant as a farm show security guard, prior to the drive around the city. Woodring asked Trooper Lotwick whether appellant had been given his constitutional rights, and then turned to appellant and asked him if he understood those rights. Appellant responded affirmatively. (N.T. suppression, 75-76.)

The Commonwealth then called appellant to the stand “as on cross-examination.” Defense counsel objected on fifth amendment grounds. District Attorney Kleinfelter argued that the witness was being called with respect to the issue before the court; i.e., whether appellant was given and understood the Miranda warnings. (N.T. suppression, 84-85.) The court overruled the objection and permitted appellant to be called as a witness by the Commonwealth.

On the second day of the suppression hearing, appellant reiterated his objection to being called as a Commonwealth witness. The Commonwealth then acceded to the defense request and asked to withdraw the witness. Furthermore, the Commonwealth asked to have appellant’s testimony disregarded by the court. The court ruled accordingly. (N.T. suppression, 275.)

The defense then called Dr. Stanley Schneider, a clinical psychologist, to the stand. Dr. Schneider had performed a battery of tests on appellant, and reported that appellant was mentally retarded, with a mental age of approximately ten and one-half. Appellant’s physical age was 24 (N.T. suppression, 127). Dr. Schneider was permitted to express his opinion that appellant would have difficulty with completing the written confession without assistance (N.T. suppression, 134). He also stated that comprehension of Miranda warnings required at least a seventh-grade reading level, and that he had “serious reservations” about whether appellant understood the warnings that were administered to him (N.T. suppression, 135-137). (It should be noted that Dr. Schneider is not a forensic psychologist.)

On cross-examination, Dr. Schneider admitted that he was unable to state unequivocally that appellant was given help in preparing Ms written statement. The defense expert also noted that he was not able to say that appellant did not comprehend the Miranda warnings, or that he did not intelligently waive them. Dr. Schneider admitted that he had never asked appellant questions about the Miranda warnings. (N.T. suppression, 188-189.)

On rebuttal, the Commonwealth called Dr. Vincent Berger, a forensic psychologist. Dr. Berger testified that it was not possible to determine appellant’s ability to comprehend the Miranda warnings through the battery of tests administered by Dr. Schneider. Dr. Berger, who was present during the proceedings, commented that he had heard nothing which would lead him to the conclusion that appellant was either incompetent or unable to understand the Miranda warnings. (N.T. suppression, 273-274.)

The Commonwealth then argued that the entire issue of waiver was irrelevant, because appellant was not under arrest at the time he gave Ms oral and written statements to police. Alternatively, the Commonwealth argued that, even if the court were to find that appellant was in custody when he made his admissions, appellant was competent to understand and waive his Miranda rights.

In denying the motion to suppress, the court ruled that, at the time of the first admission, appellant was not in custody. The court was also satisfied that appellant understood and voluntarily waived the Miranda warnings given to him upon arrest. (N.T. suppression, 284-287.) Therefore, following the suppression hearing, the trial court denied appellant’s motion to suppress.

Trial commenced on September 12, 1988. After two days of deliberations, a jury found appellant guilty of all counts. Post-trial motions were timely filed and denied. Appellant was sentenced on December 15, 1989, to an effective term of not less than ten years and not more than twenty years. A motion for modification of sentence was filed and denied. Appellant then filed an appeal to the Superior Court of Pennsylvania.

On appeal, appellant argues that he was subjected to custodial interrogation by the Pennsylvania State Police and the Harrisburg Police Department. Appellant claims that although he was read his constitutional rights, no effort was made to determine his understanding of those rights for purposes of waiver. Furthermore, interrogating officers knew that appellant was learning disabled, but elicited confessions anyway. (Appellant’s brief, at 13.)

Appellant next argues that in allowing the district attorney to call appellant “as on cross” during the suppression hearing, the suppression court violated appellant’s constitutional right to be free from self-incrimination and to remain silent. Moreover, appellant asserts that the district attorney and the judge both misapplied the civil statute which allows one side in a civil case to call a hostile witness “as on cross.” The suppression court compounded its error by utilizing the testimony it had obtained in this manner in reaching its decision.

Finally, appellant argues that the sentence imposed upon him was excessive and unreasonable under the Sentencing Code. According to appellant, all of the information submitted to the sentencing court “mitigated” against the imposition of a sentence which would have been outside the Sentencing Guidelines, had they been in effect (appellant’s brief, at 14). Appellant states that the sentencing court disregarded the mitigating information and deviated from the normal range of sentencing without placing an adequate explanation on the record.

I.

Our review of the briefs and record in this case lead us to conclude that the suppression court correctly denied appellant’s motion to suppress admissions made to police by appellant. Appellant claims that the trial court erred in denying his motion to suppress all of his statements to the Pennsylvania State Police. Appellant argues that he was in police custody before he made any admissions to the police. We disagree.

The warnings articulated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), become mandatory whenever one is subjected to custodial interrogation. The United States Supreme Court has defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. See also Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980).

In the case at bar, upon conclusion of the suppression hearing, the lower court found that appellant was not in custody at the time of his initial admission to police regarding the fire at 622 Reily Street (N.T. suppression, 284). Our decision in Commonwealth v. Ellis, 379 Pa.Super. 337, 549 A.2d 1323 (1988), lends support to the trial court’s decision.

Ellis suggested specific factors that a suppression court should consider in deciding whether or not police detention constitutes custodial interrogation. Under Ellis, “Police detentions only become custodial when, under the totality of the circumstances, the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of formal arrest.” Id. Factors which may be considered include the basis, duration, location, and method of detention, as well as the investigative methods used. See also, Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985) (suggesting consideration of whether defendant goes to the police station voluntarily, and whether he is informed that he is free to leave).

Application of the above criteria to the present case suggests that appellant was not subjected to custodial interrogation before he made his initial admission regarding the Reily Street fire. The duration of questioning was short. Appellant admitted to setting the Reily Street fire within thirteen minutes. Furthermore, appellant voluntarily accompanied police to headquarters. Police utilized no restraints upon appellant during questioning, and conducted the interview in a non-threatening interview room. Finally, police told appellant that he could refuse to accompany them and that he was free to leave at any time. Police also offered to provide a ride back to Harrisburg.

A case directly on point with the case at bar is Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982). In Maddox, officers went to defendant’s place of employment to question him. Defendant agreed to accompany the detectives to the police station for questioning. Police told defendant that he was not under arrest, and that he was free to leave at any time. During the questioning that followed, defendant made incriminating statements. The court concluded that an arrest took place only when defendant began to incriminate himself and should have known that he was no longer able to leave.

Under Maddox, it seems clear that appellant was not under arrest when he was initially taken to state police headquarters and when he shortly thereafter gave his initial incriminating statement. Additionally, under applicable case law, questioning of appellant was not custodial in nature. Therefore, police were not required to give warnings nor to receive a waiver of appellant's rights before eliciting his statement.

II.

Alternatively, our review of the record also reveals that the suppression court properly concluded that appellant’s incriminating statements were the product of a voluntary, knowing, and intelligent waiver of his Miranda rights. The suppression court did not make it clear whether it had based its decision not to suppress appellant’s initial admission on the theory of non-custodial interrogation or on the theory of valid waiver of Miranda rights. The Commonwealth argued both theories in the alternative to justify denial of appellant’s motion to suppress his initial admission regarding the Reily Street arson. Because of the importance of the waiver issue, it will be addressed here.

This Court has held that the determination of whether a defendant has validly waived his Miranda rights depends upon a two-prong analysis: (1) was the waiver voluntary, in the sense that defendant’s choice was not the . end result of governmental pressure; and (2) was the waiver knowing and intelligent? Commonwealth v. Cephas, 361 Pa.Super. 160, 522 A.2d 63 (1987). Furthermore, a suppression court should answer each of these inquiries based upon its assessment of the totality of the circumstances surrounding a defendant and the interrogation. Commonwealth v. Scarborough, 491 Pa. 300, 312-313, 421 A.2d 147, 153 (1980). The two-prong inquiry described in Cephas is valid whenever a defendant claims he was incapable of making a valid waiver because of a mental or psychological defect. Thus, the two-prong inquiry applies in the instant case.

We must first examine whether appellant’s confession was voluntary. In the instant case, two plain clothes officers approached appellant as he was walking on a city street. Nothing in their demeanor was menacing. The officers advised appellant of the nature of their inquiry, and asked if he would voluntarily accompany them to headquarters. Appellant agreed to go with them. The ride to headquarters took approximately five minutes, and the interview, itself, was conducted in a non-coercive atmosphere. Appellant’s initial denial of setting any fires, particularly the fire at 622 Reily Street, suggests that the relationship between appellant and the officers was non-coercive to that point. Indeed, appellant did not confess until he was confronted with the fact that a person with the nickname, “Sarge,” was responsible for the Reily Street fire.

Finally, from the time the officers encountered appellant on the street until he made his admission regarding the Reily Street fire, only forty minutes had elapsed. Only thirteen minutes passed from the giving of the warnings until the first admission. There is nothing in the record to indicate the relentless grilling generally associated with coercive questioning.

III.

This Court must next decide whether appellant fully comprehended the nature of the rights explained to him. The officers conceded that appellant appeared to be “slow.” Dr. Schneider, who had administered a battery of tests to appellant, concluded that appellant had a full scale intelligence quotient of 58 and a mental age of ten years and four months (N.T. suppression, 120). It is important to note, however, that appellant graduated from the twelfth grade, although in a special education program.

The Pennsylvania Supreme Court has addressed the connection between mental age and voluntariness of confessions in Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975). In Crosby, the defendant completed the eighth grade and had an IQ of approximately 70. The Supreme Court concluded: “[T]he mental age and condition of appellant are serious considerations, but a low IQ and limited education are not in themselves sufficient to render the confession involuntary.” Id., 464 Pa. at 344-345, 346 A.2d at 772. See also, Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).

In the instant case, although appellant is of low intelligence, his ability to comprehend and waive Miranda rights was enhanced by a number of factors. Appellant had previously been arrested and was given Miranda warnings four times. Repeated exposure to the warnings would serve to reinforce the concepts which are included in those warnings. (N.T. suppression, 181.) Appellant also has come into court on a previous occasion and has entered a guilty plea. Such exposure to the legal system and its jargon is significant in this case.

Furthermore, the record indicates that appellant has worked as a security guard for Sloan Detective Agency—a position which included training in the giving of Miranda warnings (N.T. suppression, 211). Finally, even appellant’s own expert witness, Dr. Schneider, could not state that appellant was incapable of understanding Miranda warnings. At best, Dr. Schneider could only admit his reservations on the issue (N.T. suppression, 137).

It is unquestioned that the officers involved in appellant’s case read appellant his rights and asked if he understood them. Appellant indicated that he did understand, and that he did not have any questions. Officers read the waiver form to appellant, and he proceeded to sign. Officer Woodring inquired a second time about appellant’s understanding. Appellant replied that he understood, once again.

Appellant now argues that, as a result of his mental deficiency, he submits to authority and is easily influenced. His claim is undermined by the fact that appellant denied setting the fires at sites where he was not a suspect. Such appropriate denials suggest independent resolve and a recognition of the seriousness of the situation. We conclude that the Commonwealth has met its burden of proof concerning the issue of waiver.

IV.

Appellant next claims that the lower court erred when it permitted the Commonwealth to call appellant as a witness in the suppression hearing. Such a claim ignores the fact that appellant’s testimony was later stricken from the record, upon motion of the Commonwealth. The testimony was neither used nor considered for any purpose. Because the evidence was stricken from the record, the issue is now moot in this particular case.

As far as we know, however, this is a case of first impression in Pennsylvania. Therefore, we will address the matter for the guidance of the bench and bar. We are satisfied that proper authority exists for calling a defendant as a witness at his own suppression hearing. Pennsylvania Rule of Criminal Procedure 323 provides that a defendant may testify at a suppression hearing, and that he does not waive his right to remain silent at trial as a result of the suppression testimony.

Furthermore, the Judicial Code, 42 Pa.C.S. § 5941(a) addresses the issue of testimonial privilege:

Except defendants actually upon trial in criminal proceedings, any competent witness may be compelled to testify in any matter, civil or criminal; but he may not be compelled to answer any question, which in the opinion of the trial judge, would tend to incriminate him ...

Id.

Thus, pursuant to current law, a defendant may be called for a limited purpose, provided that the questioning will not violate his constitutional rights under the fifth amendment. Should concerns be raised regarding whether questions are potentially incriminating, the trial judge must rule on an ad hoc basis.

Y.

Appellant’s final issue on appeal concerns whether the sentence imposed upon him was unreasonable and excessive. We find that the lower court’s imposition of an effective sentence of not less than ten and not more than twenty years was neither excessive nor unreasonable.

Appellant was charged with and convicted of twelve counts of arson endangering persons, a felony of the first degree, and twelve counts of arson endangering property, a felony of the second degree. A person may be sentenced to a term not in excess of twenty years for a felony of the first degree. Similarly, a person may be sentenced to a term not in excess of ten years for a felony of the second degree. 18 Pa.C.S.A. § 1103(1) and (2).

Sentencing is a matter vested in the sound discretion of the trial court and the lower court’s judgment of sentence will not be disturbed by an appellate court absent abuse of discretion. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Meo, 362 Pa.Super 328, 524 A.2d 902 (1987), alloc, den. 516 Pa. 632, 533 A.2d 91 (1988). To constitute an abuse of discretion, a sentence must either exceed the statutory limits or be patently excessive. Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985); Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983). When reviewing sentencing matters, we must accord great weight to the sentencing court as it is in the best position to view defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. Commonwealth v. Fries, 362 Pa.Super. 163, 167, 523 A.2d 1134, 1135 (1987), alloc, den., 515 Pa. 619, 531 A.2d 427 (1987). See also Commonwealth v. Hainsey, 379 Pa.Super. 376, 550 A.2d 207 (1988).

Furthermore, a sentence should not be disturbed when it can be demonstrated that the judge had a degree of awareness of the sentencing considerations and that the weighing process took place in a meaningful fashion. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). In the instant case, Judge Morrison considered a number of important factors when sentencing appellant. He had before him a pre-sentence investigation report and he received information from numerous sources at sentencing (N.T. sentencing, 18-20).

Judge Morrison balanced the needs of appellant with those of society before arriving at his decision. He viewed his obligation to both appellant and his community as a solemn one. In the end, Judge Morrison chose imprisonment over other forms of supervision. He commented:

So we have to take a serious look at those who have been affected by the kind of Curtis Brown and we have to do whatever we can do to protect those who may be exposed to the same kind of risk of harm, should he be left free to be supervised by the agencies that have offered to help. We could not charge them with the responsibility of granting us a guarantee these offenses would not happen again because they are not in a position to deliver that kind of guarantee ...

(N.T. sentencing, 19-20.)

In spite of the trial court’s compliance, appellant still argues that the sentence is excessive. In Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, our Supreme Court addressed the issue of sentencing:

A presentence report constitutes the record and speaks for itself ... We state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the presentence report, the sentencing court’s discretion should not be disturbed. This is particularly true where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations.

Id., 519 Pa. at 18, 546 A.2d at 18. Under Devers, appellant’s argument must fail.

Appellant next argues that the sentence imposed by Judge Morrison was in excess of the Sentencing Guidelines. Although appellant proffers this argument, he later admits that the Sentencing Guidelines were not applicable to his case. See Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). Subsequent to Sessoms, the Superior Court has stated that there is no bar against trial court consideration of the guidelines, but there is also no mandate to do so in cases where they are of no effect. Commonwealth v. Pickering, 368 Pa.Super. 100, 108, 533 A.2d 735, 739 n. 1 (1987); Commonwealth v. Woodward, 368 Pa.Super. 363, 369, 534 A.2d 478, 481 n. 4 (1987).

Appellant also argues that the sentencing court failed to adequately articulate its reasons for imposing a sentence that was outside the normal range of sentencing for similar offenses. He asserts that the sentence imposed deviated from the normal range of sentences imposed for similar offenses, and that the sentencing court must articulate its reasons for that deviation. No authority exists to support appellant’s claim.

It is apparent from the sentencing transcript and the presentence investigation report that the trial court weighed a multitude of factors in its deliberations. In light of Devers and the record as a whole, it is clear that there was no abuse of discretion. A judge sentences on a case-by-case basis, and appellant’s sentence is a reflection of the crimes committed. The sentencing court was in the best position to balance the factors involved in the case, and its decision should not be disturbed. Appellant has failed to allege any abuse of discretion; therefore, we must deny his claim for relief.

Judgment of sentence affirmed.

HOFFMAN, J., concurs and files statement in which BECK, J., joins.

HOFFMAN, Judge,

concurring.

I join in Sections I and V of the opinion of my esteemed colleague, Judge Peter Paul Olszewski. I agree with the lead opinion that appellant was not subjected to custodial interrogation when he gave his incriminating statements and that the court below properly denied appellant’s motion to suppress. I also agree that the trial court’s sentence was neither excessive nor unreasonable.

I do not find it necessary to address the alternative holdings on the suppression claim, and thus I cannot join in Sections II and III. I also offer no opinion on the propriety of the court’s directing appellant to take the witness stand at the suppression hearing. Because the court struck this testimony, any question on the propriety of this procedure is now moot. Therefore, I cannot join in Section IV.

BECK, J., joins.


author: WIEAND, Judge:

text:
    583 A.2d 814
    Dorothy DUNKLE, Administratrix of the Estate of Jack H. Rizor, deceased, and Dorothy Dunkle, in her own right, and Howard Rice, an individual, Appellants, v. WEST PENN POWER COMPANY, a corporation, and Robert Charles Paxton, Jr. v. RADIO SHACK, a DIVISION OF TANDY CORP., and/or Tandy Corporation, t/d/b/a Radio Shack.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1990.
    Filed Dec. 4, 1990.
    Reargument Denied Jan. 14, 1991.

      Paul A. Tershel, Assistant Public Defender, Washington, for appellants.
    Ingrid S.M. Lundberg, Pittsburgh, for Radio Shack, appellee.

      Before ROWLEY, WIEAND and HUDOCK, JJ.
   WIEAND, Judge:

The issue in this appeal is whether subsequently adopted Consumer Product Safety Commission standards, which contain no retroactive effect and no recall provisions, are relevant to show a failure to give adequate warnings at the time when a product was manufactured and sold. The trial court held that later adopted safety standards were irrelevant and excluded such evidence, and the jury found specifically that the television antenna sold by Tandy Corporation was not defective. After careful review, we find no error in the trial court’s ruling and affirm the judgment entered on the verdict of the jury.

On September 23, 1983, Jack H. Rizor was killed and Howard Rice was injured when the antenna which they were moving from a house occupied by Robert Charles Paxton, Jr., came into contact with an electric power line owned by West Penn Power Company. In a subsequent action by Rice and Rizor’s administratrix against Paxton and West Penn, Tandy Corporation, which had manufactured the antenna, was joined as an additional defendant. Prior to trial, a default judgment was entered against Paxton; and at trial, the jury found that West Penn had been 15% negligent, Paxton 36% negligent, and both Rizor and Rice 49%. The claim against Tandy was submitted to the jury solely on a theory of strict liability, and the jury, in response to a specific interrogatory, found that the antenna had not been defective. Post-trial motions were denied, and the plaintiffs’ claims against West Penn were settled. With respect to the claim against Tandy, a judgment was entered on the verdict in its favor. The claimants appealed.

The antenna being moved by the claimant-appellants at the time when it came into contact with West Penn’s power line had been sold in the spring of either 1977 or 1978. Consumer Product Safety Commission standards were published on June 29,1978, and became effective on September 26,1978, requiring instructions and warning labels not only on CB base station antennas but also on outdoor television antennas and antenna supporting structures. These standards applied only to antennas manufactured, imported or sold after September 26,1978 and contained no recall provisions for antennas previously manufactured. In 1982, additional standards were adopted and had application to antennas manufactured or imported after May 24, 1988. Appellant offered these standards at trial to show that Tandy’s antenna was so defective as fo require subsequent government intervention and regulation. The trial court, upon objection, excluded the evidence as irrelevant. Appellants contend that this was error.

A trial court has wide discretion in ruling on the relevancy of evidence, and its rulings thereon will not be reversed absent an abuse of discretion. See: Leonard by Meyers v. Nichols Homeshield, Inc., 884 Pa.Super. 1, 557 A.2d 743 (1989); Walasavage v. Marinelli, 334 Pa.Super. 396, 483 A.2d 509 (1984); Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615 (1983). As a general rule, subsequently enacted regulations are irrelevant to establish an earlier duty of care. See: Lemery v. O’Shea Dennis, Inc., 112 N.H. 199, 291 A.2d 616 (1972) (evidence of safety codes irrelevant absent evidence that they were promulgated prior to alleged negligent act); Dominick v. Brockton-Taunton Gas Co., 356 Mass. 669, 255 N.E.2d 870 (1970) (evidence of 1963 safety standards irrelevant to show 1959 standard of care); Rodriguez v. Elizabethtown Gas Co., 104 N.J.Super. 436, 250 A.2d 408 (1969) (subsequently published manual of safe practices irrelevant to establish duty of care). Similarly, in a strict liability action against the manufacturer of a product, safety standards promulgated after the sale of the product are irrelevant and inadmissible to show that the product was defectively designed or contained inadequate warnings when manufactured. Oberreuter v. Orion Industries, Inc., 398 N.W.2d 206 (Iowa App. 1986). See: Aller v. Rodgers Machinery Manufacturing Co., Inc., 268 N.W.2d 830 (Iowa 1978); Rice v. James Hanrahan & Sons, 20 Mass.App. 701, 482 N.E.2d 883 (1985); Cover v. Cohen, 61 N.Y.2d 261, 473 N.Y.S.2d 378, 461 N.E.2d 864 (1984); Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979). See also: Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537 A.2d 334 (1988), appeal denied, 520 Pa. 594, 552 A.2d 249 (1988).

The decision in Matsko v. Harley Davidson Motor Company, Inc., 325 Pa.Super. 452, 473 A.2d 155 (1984), is not to the contrary. In that case, the trial court had received in evidence a post-accident recall notice of the motorcycle involved in an accident. On appeal, it was argued that admission of the evidence was forbidden by the “subsequent repair” rule. A panel majority held that the evidence was relevant to show that the motorcycle had been defective. In the instant case, however, there had been no recall notice. The safety standard which appellants sought to introduce was, by its express terms, to have application to antennas manufactured in the future. The warning requirements contained therein had no retroactive application, and there was no suggestion that antennas previously manufactured and sold should be recalled. Such a regulation, therefore, had no relevancy in determining whether the antenna being moved by appellants was defective when manufactured because it did not have attached thereto a warning against permitting it to come into contact with electrical power lines.

A warning sticker had been placed on the mast section of the antenna assembly and stated: “DANGER: WATCH FOR WIRES. You can be KILLED if this Antenna comes near electric power lines. READ INSTRUCTIONS.” Howard Rice testified that there were electric lines in the vicinity and that he was aware of the danger of electrocution if the antenna hit the wires. Under these circumstances, a jury could readily find that the antenna was not defective because of the absence of a warning on the antenna itself. That warnings were later required to be attached to the antenna itself was irrelevant to aid in determining whether the antenna in this case was defective when manufactured.

Judgment affirmed.


author: CERCONE, Judge:

text:
    583 A.2d 816
    In the Interest of Ronnie J. MORROW. Appeal of COMMONWEALTH of Pennsylvania for Ronnie J. MORROW.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1990.
    Filed Dec. 18, 1990.

      Joan Weiner, Asst. Dist. Atty., Philadelphia, for the Com., appellant.
    Paul George, Philadelphia, for participating party.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by the Commonwealth from an order dismissing further juvenile proceedings against appellee minor on the grounds of double jeopardy. For the reasons set forth below, we reverse.

Appellee’s original adjudicatory hearing was held before the Honorable Abram Frank Reynolds on December 21, 1989. The arresting officers testified that they observed appellee sell cocaine on the street and that the subsequent search incident to arrest uncovered nine hundred thirty-six dollars ($936.00) on appellee’s person. While the minor’s mother was testifying on her son’s behalf, the hearing judge interrupted the witness and challenged her to explain where the minor had obtained such a large amount of cash. N.T. 12/21/89 at 6. Ms. Morrow replied that she had given the money to the child out of her unemployment check. Id. In response, Judge Reynolds berated Ms. Morrow and told her that she was the real problem facing the court. Id. The hearing judge also condemned Ms. Morrow’s style of parenting, implied that she did not truly love her son and castigated her for lying to the court. Id. at 7. When the witness stated that she was not lying, the judge refused to permit Ms. Morrow to complete her testimony and ordered her to leave the stand. Id. The record shows that Ms. Morrow was removed from the courtroom at this point. Id.

Upon recovering his composure, the hearing judge apologized for his behavior and asked whether appellee wanted the case to be transferred to another judge. Id. Despite a negative response from defense counsel, the hearing judge determined that he had to recuse himself from appellee’s case because he was “totally wrong.” Id. The case was next assigned to the Honorable Kathryn S. Lewis for disposition. Before a second adjudicatory hearing could be conducted, however, appellee moved to have the charges dismissed on the grounds that the declaration of a new hearing had not been manifestly necessary and that a rehearing was therefore precluded by double jeopardy principles. Judge Lewis agreed with the accused and barred the Commonwealth from proceeding with a rehearing. The instant timely appeal ensued which raises one issue for our consideration: did the trial court err in granting double jeopardy relief and thus barring a rehearing for appellee?

Appellee correctly argues that the constitutional protection against being placed twice in jeopardy applies to proceedings before the juvenile court. Swisher v. Brady, 438 U.S. 204, 215 n. 12, 98 S.Ct. 2699, 2706 n. 12, 57 L.Ed.2d 705 (1978); In Interest of R.R., 317 Pa.Super. 334, 464 A.2d 348 (1983). It is also beyond cavil that jeopardy attaches once testimony has commenced at a juvenile’s adjudicatory hearing. Swisher, supra; Interest of R.R., supra, 317 Pa.Superior Ct. at 344, n. 12, 464 A.2d at 353 n. 12. Once an accused’s double jeopardy rights have been implicated, the question of whether a new hearing may be conducted after a mistrial has been declared without the defendant’s request or consent depends on a resolution of whether there is “a manifest necessity for the mistrial, or [whether] the ends of public justice would otherwise be defeated.” Commonwealth v. Balog, 395 Pa.Super. 158, 163, 576 A.2d 1092, 1094 (1990), citing Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976).

Unquestionably, a judge who sua sponte aborts a criminal proceeding has deprived a defendant of the valuable right to have the proceeding completed by a particular tribunal. United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971); Commonwealth v. Balog, supra, 395 Pa.Superior Ct. at 163, 576 A.2d at 1094-95. Any doubt relative to the existence of manifest necessity to declare a new hearing must be resolved in favor of the appellee. See, e.g., Commonwealth v. Balog, supra, 395 Pa.Superior Ct. at 164, 576 A.2d at 1095. Instantly, however, the prerogative to have the adjudication completed in its initial forum must be balanced against appellee’s uncontroverted right to have his guilt or innocence determined by an impartial judge. See also Commonwealth v. Lemanski, 365 Pa.Super. 332, 341, 529 A.2d 1085, 1089 (1987) (a defendant is entitled to a trial or hearing before a judge who is not biased against him at any point of the proceeding). So strong is the constitutional imperative of adjudication before an unbiased tribunal, that the Pennsylvania Supreme Court has declared: “[r]ecusal is required whenever there is substantial doubt as to a jurist’s ability to preside impartially.” Commonwealth v. Boyle, 498 Pa. 486, 490, 447 A.2d 250, 252 (1982) (emphasis added). “A jurist’s impartiality is called into question whenever he has doubts as to his ability to preside objectively and fairly in the proceeding....” Id., 498 Pa. at 490 n. 4, 447 A.2d at 252 n. 4.

As our supreme court has further explained, a judge is the foremost authority in his own courtroom; he is the sole governor of his own conduct. Commonwealth v. Hammer, 508 Pa. 88, 96, 494 A.2d 1054, 1058 (1985). The duty therefore lies with the lower court judge to ensure that his conduct is “above reproach” in a criminal prosecution and to recuse himself when his conduct is prejudicial to the defendant. Id. Our supreme court has made it clear that a judge must recuse himself when his behavior departs “from the clear line of duty through questions, expressions or conduct [which] contravenes the orderly administration of justice.” Id. quoting Commonwealth v. Myma, 278 Pa. 505, 508, 123 A. 486, 487 (1924).

We note that the Code of Judicial Conduct gives the judge the responsibility for maintaining order and decorum in proceedings before him and exhorts the judge to “accord to every person who is legally interested in a proceeding ... full right to be heard according to law____” Code of Judicial Conduct, Canon 3, subd. A(2) and (4). Finally, the Code calls for disqualification where a judge’s “impartiality might reasonably be questioned” because of personal bias or prejudice concerning a party. Id., subd. C(l). See also Commonwealth v. Lemanski, supra (recusal is required whenever there is substantial doubt as to a jurist’s ability to preside impartially); Commonwealth v. Bryant, 328 Pa.Super. 1, 476 A.2d 422 (1984) (judicial conduct is governed by the precept of avoiding not only actual impropriety, but even the appearance of impropriety).

When a judge “believes his impartiality can be reasonably questioned,” he should recuse himself, just as he should if he himself has doubt as to his ability to preside impartially. Commonwealth v. Goodman, 454 Pa. 358, 361, 311 A.2d 652, 654 (1973) (quoting A.B.A. Standards Relating to the Function of the Trial Judge § 1.7, approved Draft, 1972). In the case before us, the lower court judge twice interrupted the testimony of a crucial witness for appellee, the minor’s own mother. The judge curtailed Ms. Morrow’s ability to complete her testimony for the defense. He castigated this woman, blamed her for her son’s problems, and effectively banished her from the courtroom. N.T. 12/21/89 at 6-7. Judge Reynolds’ severe distress at his lapse in judicial decorum and the resulting prejudicial effect on appellee is patent in his disjointed responses to remarks by counsel. Id. at 7-8. Although appellee’s counsel suggested that the matter merely be “set aside,” Judge Reynolds indicated that he could not do so and indicated that he “should not handle” appellee’s case further. Id. at 7. Under these circumstances, we cannot conclude that Judge Reynolds committed either abuse of discretion or error of law in recusing himself and granting a new hearing for reasons of manifest necessity. Because there was a manifest necessity for a new hearing, the accused’s double jeopardy rights have not been compromised. See Commonwealth v. Balog, supra.

The decision of the lower court is reversed. The order dismissing appellee and barring further prosecution is vacated and the case is remanded for an adjudicatory hearing. The jurisdiction of the Superior Court is relinquished.


author: TAMILIA, Judge:

text:
    588 A.2d 819
    Gail DAVIS v. ERIE INSURANCE GROUP, Appellant. Gail DAVIS, Appellant, v. ERIE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1990.
    Filed Dec. 19, 1990.

      Edward S. Neyhart, Scranton, for appellant (at 425) and appellee (at 502).
    Thomas M. Holmes, Scranton, for appellant (at 502) and appellee (at 425).
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

These are cross-appeals from a judgment vacating an arbitrator’s award and granting underinsurance coverage in the amount of $15,000.

On March 24, 1985, Davis was injured when her automobile was struck by an automobile driven by Rennie Hendrickson. Hendrickson is an Allstate insured, and Allstate has paid the $50,000 limits of its policy. Davis was insured under Erie’s “Pioneer Family Auto Policy,” which specifically provided for uninsured motorist coverage in the amount of $50,000, an amount equal to the limits of liability coverage under the policy. The policy, which did not provide for underinsurance coverage, was issued August 22, 1984 and continued in effect until August 22, 1985.

During this policy period and prior to the accident sub judice, the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. § 1701 et seq., took effect on October 1, 1984. This Law, at section 1731 Scope and amount of coverage, requires: “No motor vehicle liability insurance policy shall be ... issued ... unless ... underinsured motorist coverages are provided ... in amounts equal to the bodily injury liability coverage....” The Law applies to insurance policies issued or renewed on or after October 1, 1984, the effective date of this Act. Gov’t. Employees Ins. Co. v. Benton, 859 F.2d 1147, reh. den. (3d 1988).

The policy currently under consideration was issued prior to the effective date of the Law. Therefore, the MVFRL does not, at first blush, apply. However, Davis’ policy included the following liberalization clause:

(2) HOW YOUR POLICY MAY BE CHANGED This policy conforms to the laws of the state in which you live at the time it is issued. We will give you the benefit of any broadening of this policy, if it does not require additional premium. The policy may be changed by endorsement issued by us.

(Pioneer family auto insurance policy, p. 11.) As a consequence, the trial court held that the effect of the liberalization clause was to extend to Davis underinsurance coverage in the amount of $15,000. The trial court’s rationale is as follows. Pursuant to the statutory mandate, all policies issued after October 1, 1984 must contain, at a minimum, $15,000/30,000 underinsurance coverage. Because $15,-000/30,000 underinsurance coverage is the minimum statutorily required amount, the trial court made a finding of fact that Davis would not have been required to pay additional premiums for this benefit. The “broadening” language of the policy’s liberalization clause, the court reasoned, extended to Davis the minimum statutory underinsurance coverage. In the same respect, the underinsurance coverage was limited to $15,000/30,000 by the liberalization clause. Any higher amount of underinsurance coverage would have “required additional premiums.” While we cannot determine on what basis the trial court found as a fact that additional premiums would not have been required to extend policy coverage to the minimum requirements for underinsured motorists .coverage, since Erie has not contested this finding and has not discussed it in its brief, we must assume the trial court’s finding is correct. Also, despite the objection by Davis to the trial court’s finding that underinsured coverage under the new statutory provision extended' to the full policy limits of $50,000 would have resulted in increased premiums, it appears to be logically and reasonably proper and we accept the trial court’s finding on this issue.

The clear and unambiguous language of the liberalization provision expanded Davis’ then existing policy to include the broadening of coverage effectuated by the MVFRL. Where a provision of an insurance contract is clear and unambiguous, the court is required to give effect to that language. Standard Venetian Blind Co. v. Amer. Empire Insurance, 503 Pa. 300, 469 A.2d 563 (1983). Here, the language in the liberalization provision is clear and unambiguous. The clause requires an expansion of coverage to conform with the laws of the insured’s home state. During this policy’s term, the MVFRL took effect requiring insurance carriers to provide mandatory underinsured motorist coverage. Thus, the liberalization clause automatically afforded underinsurance coverage.

We are cognizant of the conflict between the factual situation at hand and the application of the statutory language. Pursuant to section 1731, underinsured motorist coverage is to be provided at an amount equal to the bodily injury liability coverage. Appellant’s bodily injury liability coverage is $50,000. Davis argues that she, therefore, is entitled to $50,000 underinsurance coverage, ah amount equal to her bodily injury coverage, pursuant to section 1731. As discussed above, the trial court found as fact that underinsurance coverage to $50,000 would have increased appellant’s premiums whereas the statutory minimum of $15,000 coverage for one person in one accident would not increase premiums. We will not disturb this factual finding.

We reject Davis’ assertion in her appeal at 502 Philadelphia, 1990, that the writing requirement of 75 Pa.C.S. § 1734 Request for lower or higher limits of coverage, read in conjunction with section 1731, mandates Erie to provide $50,000 underinsured liability coverage. Section 1734 provides:

A named insured may request in writing the issuance of coverages under section 1731 (relating to scope and amount of coverage) in amounts less than the limits of liability for bodily injury but in no event less than the amounts required by this chapter for bodily injury. If the named insured has selected uninsured and underinsured motorist coverage in connection with a policy previously issued to him by the same insurer under section 1731, the coverages offered need not be provided in excess of the limits of liability previously issued for uninsured and underinsured motorist coverage unless the named insured requests in writing higher limits of liability for those coverages.

After a studied examination of the statute, we decline to contort its clear meaning in order to apply it in a manner which will inure to Davis’ benefit.

This Court has stated:

When underinsured motorists coverage is included, the terms and limitations thereof are not controlled by statute or public policy but by the agreement reached by the parties. That agreement, as expressed in the policy of insurance, may place limitations upon underinsured motorist coverage, subject only to the requirement that the limitation be clearly worded or conspicuously displayed.

Votedian v. General ACC Fire & Life Assur. Corp., 330 Pa.Super. 13, 19, 478 A.2d 1324, 1327 (1984).

The liberalization clause operated to reform Davis’ insurance policy to include the newly mandated underinsured motorist coverage. In so holding we have resolved the issues presented by Erie in its appeal at 425 Philadelphia, 1990. In that appeal, Erie maintains that the above analysis cannot be sustained as the liberalization clause applies only to policies issued after the effective date of the MVPRL, and to apply requirements of the new Act to the old No Fault Motor Vehicle Act, was to reform the contract. Secondly, even if the liberalization clause applied, the under-insurance in this case was “gap” insurance and, therefore, would result in zero benefits.

In support of its first position, Erie relies on Employees Benefit Plan v. Harleyville Mutual Insurance Co. v. Grode, 112 Pa.Cmwlth. 470, 535 A.2d 739 (1989). It is inapplicable because the Court in Harleyville found that the effective date of the MVFRL did not apply to insurance policies issued before October 1, 1984 in interpreting the application of the Catastrophic Loss Trust Fund (Cat Fund). The Cat Fund stood separate from the policy of insurance and required payment of a $5 premium upon registration of the vehicle. It required issuance or renewal of the policy and a registration after October 1, 1984, to be applicable. Eligibility did not occur in that case and the facts, law and circumstances are not applicable here.

Erie relies on Ostroff v. Keystone, 357 Pa.Super. 109, 515 A.2d 584 (1986), as holding a liberalization clause may not be used to imply underinsured coverage where only uninsured motorist coverage is specified in the contract. That case may be distinguished from this case on its facts and the wording of the contract. There, the liberalization clause applied only to such changes in the forms published and used by the company, which would result in extended or broadened coverage, without additional premium charge. The underinsured coverage as interpreted in the "Private Car Manual” used by Keystone agents provided coverage without additional charge, limited to the basic limits of $15,000, (as required here), against any operator of a vehicle from a state not requiring $15,000 worth of coverage. In other words, Keystone agreed to permit underinsurance to apply, up to $15,000, only in the instance where an out-of-state driver’s coverage was not up to the $15,000 minimum coverage required in Pennsylvania. Pennsylvania drivers could not qualify as underinsured drivers under that policy because they were required to have a minimum of $15,000 basic insurance. Payment of the $15,000 minimum on a claim satisfied any possible claim that might have arisen under underinsurance basic coverage. We see no relationship to this case.

The liberalization clause in the present policy, as stated supra, provides:

(2) HOW YOUR POLICY MAY BE CHANGED
This policy conforms to the laws of the state in which you live at the time it is issued. We will give you the benefit of any broadening of this policy, if it does not require additional premium. The policy may be changed by endorsement issued by us.

(Policy at p. 11.) Erie maintains a new law cannot effect the policy as it was not within the contemplation of the policy. We do not agree.

A new law requiring additional premiums and a new and different type of coverage not contemplated by the policy, would fall within this category. However, underinsurance was contemplated by the policy at least as part of an uninsured claim under Uninsured Coverage to the extent that the sum of the limits of all applicable policies is less than the coverage under the Uninsured Coverage. The change in that coverage was to extend it beyond Uninsured Coverage and make it mandatory as a separate coverage which would provide for payment to the minimum statutory amount, $15,000/30,000, of damages which exceeded the limits of those policies which were liable. As such, the law broadened the coverage contained in the policy and, therefore, came within the liberalization clause. The liberalization clause recognized that its minimum coverage “conforms to the law of the state in which you live at the time it is issued.” It was the intent of the parties that the policy would at all times conform to the law of the state, as soon as it was legally practical to do this, which generally occurred at the renewal date after the effective date of the policy, or, if no additional premium was required, upon the effective date of the new law. We, therefore, conclude that in reading the underinsured coverage provision contained in the Uninsured Coverage portion of the policy, which provides for “gap” coverage, the addition to that coverage by the 1984 statutory amendment could only mean that under-insurance coverage means in addition to the limits of liability by policies covering the accident to the extent of the damages, but not in excess of the $15,000/30,000 limit. Erie’s position on “gap” coverage is, therefore, not sustainable. We, therefore, affirm the Order of the trial court.

Order affirmed.

      . Underinsured coverage was included only as an extension of uninsured coverage to the extent that the sum of all applicable policies was less than the respective bodily injury or property damage limits under the Uninsured Motorists Coverage. As such, there was no underinsured coverage beyond the limits of Uninsured Motorists Coverage. Pioneer family auto insurance policy, p. 7, Uninsured Motorists Coverage (4).

      . Pursuant to the law in effect at the time, Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq., insurance carriers were not required to issue policies containing underinsurance coverage.

      . “Financial responsibility.” The ability to respond in damages for liability on account of accidents arising out of the maintenance or use of a motor vehicle in the amount of $15,000 because of injury to one person in any one accident, in the amount of $30,000 because of injury to two or more persons in any one accident and in the amount of $5,000 because of damage to property of others in any one accident. The financial responsibility shall be in a form acceptable to the Department of Transportation.
      75 Fa.C.S. § 1702.

      . In Votedian, the policy was not controlled by 75 Pa.C.S. § 1731 because the agreement was entered into prior to the statute’s effective date. However, the Votedian policy did not have a liberalization clause, as here, which included, albeit limited, the underinsurance coverage provided pursuant to section 1731.

      . Erie also relies on Walconis v. Erie Insurance Company, 400 Pa.Super. 632, 576 A.2d 1144 (1990). Although our decision in that case supports Erie's position, an unpublished memorandum is not proper for precedential purposes.