author: TAMILIA, Judge.

text:
    595 A.2d 158
    COMMONWEALTH of Pennsylvania v. Dwayne M. MORNINGWAKE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 12, 1991.
    Filed July 25, 1991.
    Petition for Allowance of Appeal Denied Nov. 25, 1991.

      Robert D. Glessner, York, for appellant.
    H. Stanley Rebert, Asst. Dist. Atty., York, for Com., appellee.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   TAMILIA, Judge.

Dwayne M. Morningwake takes this appeal from judgment of sentence entered September 4, 1990, after a jury found him guilty of first degree murder, robbery, burglary and conspiracy to commit these three offenses. On June 18, 1988, the appellant, then fifteen years old, along with co-defendants Miguel E. Yoder and Michael A. Lehman, allegedly stabbed to death Kwame Beatty, the appellant’s counselor at the York Children’s Home where he resided. During the penalty phase of the trial, the jury recommended a sentence of life imprisonment for the first degree murder conviction. Appellant’s post-trial motions were denied and life imprisonment along with two consecutive terms of eight (8) to sixteen (16) years and one (1) to two (2) years for the robbery and burglary convictions, respectively, were imposed by the court. This appeal followed.

Morningwake’s first argument on appeal is the court erred by failing to suppress statements made by him to the police which, appellant argues, were made without a “voluntary, knowing and intelligent waiver of his rights under all of the circumstances.” (Appellant’s brief at p. 15.) Appellant argues the adult with him when he made his statement to the police, Group Home Director, William Engstrand, was the victim’s supervisor at the Children’s Home and, therefore, his loyalties laid with the victim. Appellant also contends State Trooper David LaRue, one of the officers who took his statement confessing his involvement with the murder of Beatty, improperly suggested to appellant he could better his legal position by cooperating.

A determination of whether a juvenile knowingly waived his Miranda rights and made a voluntary confession is to be based on a consideration of the totality of the circumstances, including a consideration of the juvenile’s age, experience, comprehension and the presence or absence of an interested adult. Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). We find there was sufficient evidence of record to support the trial court’s denial of appellant’s motion to suppress his statements made to the police.

The appellant was fifteen years and eleven months old when he was brought to the police station on June 18, 1988, initially to be interrogated in his capacity as a runaway, but subsequently on the investigation surrounding the death of Beatty. Despite his youth, the appellant had had prior encounters with the police, as indicated in the record and confirmed by his mother. At approximately 9:30 p.m., Officer LaRue, together with Officer Garber, began an interview with appellant concerning his possible involvement with the Beatty killing. Officers LaRue and Garber testified appellant was advised of his Miranda rights and was given the opportunity to consult with William Engstrand, appellant’s counselor and the supervisor of the Children’s Home. Mr. Engstrand was also informed of appellant’s rights. Appellant indicated to Officer LaRue he understood his rights, was willing to make a statement and had no questions. He proceeded to tell the officer it was the co-defendants who murdered Beatty. Approximately five hours later, after co-defendant Yoder implicated appellant, Officer LaRue woke appellant, inquired as to his alertness and again gave appellant his Miranda warnings and allowed him to speak privately with his mother on the telephone. Appellant’s mother was aware of the nature of the investigation and was advised of her son’s rights. Appellant then once more spoke with Mr. Engstrand, before deciding to speak with the officers and offer a statement describing his involvement with the murder. Before putting the confession on tape, appellant was advised a third time of his constitutional rights. The district attorney, who was present when appellant confessed, testified appellant was alert, was in no way under the influence of any drug or medication, nor was he deprived of his ability to hear, understand and respond. Appellant’s mother testified her son had made no indication statements given by him were coerced or forced, and she advised him to cooperate with the police.

Based on the totality of the circumstances surrounding appellant’s questioning and his experience and awareness of the proceedings, we find appellant’s statements and confession were given knowingly, intelligently and voluntarily.

Next, appellant argues the court abused its discretion by refusing to certify his case to Juvenile Court. Appellant contends he is not a dangerous juvenile as defined by the Juvenile Act, section 6302, his prior crimes were against property only and he never had the benefit of sustained rehabilitation, supervision or care.

The decision whether to grant an application for transfer to Juvenile Court of a juvenile charged with murder is within the sound discretion of the hearing judge, whose decision will not be disturbed absent a gross abuse of his broad discretion. Commonwealth v. Brown, 332 Pa.Super. 35, 480 A.2d 1171 (1984). A juvenile seeking transfer of a murder case to Juvenile Court has the burden of proving he belongs in a juvenile setting by showing his need for and amenability to a program with supervision, care and rehabilitation such as that which he would receive as a juvenile. Commonwealth v. Cessna, 371 Pa.Super. 89, 537 A.2d 834 (1988). The determination of whether a juvenile is amenable to the juvenile system is to be made only after a careful scrutiny of the individual’s personal make-up, previous history and the nature and circumstances of the alleged homicide. Id. We have reviewed the transcript of the November 10, 1988, hearing on appellant’s petition to transfer this matter to Juvenile Court, as well as the trial court’s November 30, 1988, decision denying appellant’s petition and find there to have been no abuse of discretion by the trial court.

At the hearing, appellant responded appropriately and without hesitation to questions about his prior crimes and his purposeful shunning of all attempts by his parents and numerous homes and agencies to rehabilitate his behavior. Appellant’s testimony with regard to his extensive journey through this state’s youth residential facilities was matter of fact and offered without any justification other than blaming his cohorts and peers for leading him astray. His testimony reflected he was very much aware of the inappropriateness of his continued criminal behavior and drug and alcohol abuse, yet persisted in running away from all help offered him to change his self-destructive lifestyle. We find there was no evidence presented to convince the court appellant was amenable to programs of rehabilitation, supervision and care provided by the juvenile system. Also, it is unlikely that he could be effectively rehabilitated within the period of time within which Juvenile Court has jurisdiction. Therefore, the court’s refusal to transfer the homicide case to Juvenile Court was proper.

Appellant’s third argument on appeal is the court erred by denying his request for a venue change which was based on overt negative pretrial publicity. A hearing on the motion was held April 10, 1989, after which the court concluded the case could be tried in York County without undue prejudice to the appellant. Unfortunately for our society, the crime of murder is not so unusual so as to provoke the passion a murder such as this might have done 80 years ago. The court found the newspaper articles presented by the appellant in support of his motion were primarily informative rather than purposefully inflammatory, and the mere existence of pretrial publicity will not warrant a presumption of prejudice. Commonwealth v. Keeler, 302 Pa.Super. 324, 448 A.2d 1064 (1982). Also, during individual voir dire, the court allowed defense counsel ample opportunity to discuss and explore with each prospective juror any possible negative prejudice the juror may have experienced regarding the appellant and his involvement with the crime. Once impanelled, the court instructed the jurors not to discuss the case with nonjurors or listen to media coverage during the trial. Having found no abuse of discretion by the trial court in denying appellant’s motion for change of venue, we find appellant’s third argument to be without merit.

Next, appellant argues he was denied a fair trial when the court allowed the Commonwealth to challenge for cause those prospective jurors who indicated they could not impose the death penalty. As stated in the trial court Opinion, this issue has been decided by our Supreme Court which followed the lead of the United States Supreme Court rejecting appellant’s argument. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987). Permitting the Commonwealth to challenge for cause prospective jurors based on the assertion the jurors could not impose the death penalty in a legally proper case did not deprive the appellant of his constitutional right to a fair and impartial jury.

The appellant alleges the trial court erred by refusing to sustain his demurrer to the burglary charge in that there was no evidence to show he had entered a separately occupied part of his residence. We disagree.

The murder took place in the victim’s bedroom at the Children’s Home of York where both appellant and the victim resided. To be found guilty of the crime of burglary the accused must have entered “a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.” 18 Pa.C.S. § 3502(a). The question becomes whether the appellant had the authority or permission to enter the separate part of the Children’s Home where the victim had his bedroom/office. The testimony reflects the appellant, who was at the time a runaway from the Home, gained access to the Home by climbing through an open second floor window. Appellant and his two co-conspirators then went downstairs to the victim’s room, opened the door and robbed and murdered Beatty. We find there was sufficient evidence of record for the jury to conclude the victim’s bedroom/office was not a common area open to the residents of the Home at all hours of the night. It served as the victim’s private sleeping quarters by night and as an office where records were kept and medications and petty cash funds were stored by day, and appellant was not privileged to enter at any time without permission. Accordingly, the court did not err by refusing to grant appellant’s demurrer to the burglary charge.

Next, appellant argues the court erred by not forcing co-defendant, Miguel Yoder, who had not yet come to trial, to testify. Co-defendant Yoder appeared before the court in response to a defense subpoena and asserted his constitutional right under the fifth amendment of the United States Constitution not to testify. We know of no legal basis on which any court could force a defendant to testify against his own interest. For this reason, we find appellant’s argument to be without merit.

Appellant’s final two arguments concern the court’s jury charge regarding the defense of duress. Appellant contends the court omitted the last sentence of the Standard Jury Instruction on duress:

(4) The Commonwealth has the burden of disproving the defense of duress. Thus you cannot find the defendant guilty of the crime of (_) unless you are satisfied beyond a reasonable doubt that the defendant did not act under duress____

Pa. SSJI (Crim) 8.309 Duress. This allegation is unsupported by the record. The following instruction given by the trial court adequately covers this portion of the suggested standard charge.

With regard to this, although duress is known as a defense, it is always the Commonwealth’s burden to establish all elements beyond a reasonable doubt, and so it is always the Commonwealth’s burden to disprove the existence of duress to the satisfaction of a Jury beyond a reasonable doubt.

(T.T., 4/12,13,14/89, p. 408.) Appellant maintains the final sentence of the standard jury charge must have been contained verbatim in the judge’s instruction. The judge is not bound by the standard jury instructions, which are merely a guide. We find the court’s charge meets the test required which places the burden on the Commonwealth to disprove duress beyond a reasonable doubt, and therein, unmistakably, is implied the requirement the jury could not enter a guilty verdict on the charge unless duress was disproved beyond a reasonable doubt. Appellant’s argument is, therefore, devoid of merit.

Appellant also argues the court erred by instructing the jury duress was a defense to all criminal activity except first degree murder. On the date the jury was charged, the court’s instruction was correct as it is now.

The defense of duress is generally available to a defendant charged with any crime except one which involves taking the life of an innocent person. 22 C.J.S. Criminal Law § 52, n. 99. The three elements which must be shown to establish a duress defense are: (1) an immediate or imminent threat of death or serious bodily injury; (2) a well grounded or reasonable fear that the threat will be carried out; and (3) no reasonable opportunity to escape the threatened, harm except by committing the criminal act. The law cannot permit a party who places himself in harms way by engaging in felonious criminal activity to exculpate himself by claiming the taking of an innocent life was necessary because of duress, even if his own life was thereby threatened.

Duress must not be confused with justification. Justification entails taking the life of a person who is threatening the life of the defendant or another person to prevent oneself or the other person from being killed. Duress entails the killing of an innocent person under threat of being killed. The law of nature permits a person to kill one who is to take his life and acting in self-defense; it does not permit a person to take the life of an innocent person to prevent his own possible demise by the hand of the person making the threat. For lesser crimes than murder, duress is allowable because, on balance, saving one’s own life, by committing a crime not entailing the death of another, has a higher value in society than avoiding the commission of that crime. One, however, may not be permitted to kill another innocent person to save one’s own life, since society places an equal value on both lives.

In finding harmless its failure to instruct duress was a viable defense to first degree murder, the court in this case reasoned it did properly instruct on the defense of duress with regard to the robbery and burglary charges, and, by finding appellant guilty as charged, the jury apparently determined he was under no duress. “[Tjherefore, it is obvious that they would have disregarded duress as a defense to the more serious offense involved” (first degree murder). (Slip Op., Erb, P.J., 6/26/90, p. 7.) We agree with this reasoning and find there was no error with regard to the jury instruction on duress.

For all of the foregoing reasons, we must affirm appellant’s judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S. §§ 2501 and 2502(a).

      . Id., § 3701.

      . Id., § 3502.

      . Id., § 903.

      . The Commonwealth’s motion to sever the co-defendants’ trial was granted by Order dated January 9, 1989. Therefore, co-defendants Yoder and Lehman are not parties in this action.

      . We note for the record the Commonwealth did not file a brief in this appeal.

      . Appellant was detained at the York County Police Department and appellant's mother resided in Harrisburg, Pennsylvania.

      . Jurisdiction involving murder originally lies in the Criminal Court. See 42 Pa.C.S. § 6302(2)(i) Delinquent Act. Transfer from the Criminal Court to Juvenile Court is provided for in section 6322(a) and is governed by the criterion contained in section 6355(a)(4)(iii)(A). Thus the same criteria which are considered for transfer to Criminal Court under section 6355 are applicable in transfer from Criminal Court pursuant to section 6322 of the Juvenile Act.

      . The relevant considerations by the court as contained in 42 Pa.C.S. § 6355(a)(4)(iii)(A) are as follows:
      § 6355. Transfer to criminal proceedings
      (A) That the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, even though there may not have been a prior adjudication of delinquency. In determining this the court shall consider the following factors:
      Age.
      Mental capacity.
      Maturity.
      The degree of criminal sophistication exhibited by the child.
      Previous records, if any.
      The nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the Juvenile Court to rehabilitate the child.
      Whether the child can be rehabilitated prior to the expiration of the Juvenile Court jurisdiction.
      Probation or institutional reports, if any.
      The nature and circumstances of the acts for which the transfer is sought.
      Any other relevant factors.
      (B) That the child is not committable to an institution for the mentally retarded or mentally ill.
      (C) That the interests of the community require that the child be placed under legal restraint or discipline or that the offense is one which would carry a sentence of more than three years if committed as an adult.

      . Although seven months later, in the appeal of co-conspirator Yoder, this Court found duress to be a defense to all intentional criminal charges, including first degree murder, Commonwealth v. Yoder, 396 Pa.Super. 659, 570 A.2d 1091 (1989) (unpublished memorandum),unpublished memoranda of this Court have no precedential authority for any purpose. If the cases had been tried together, the legal interpretation in one would be binding on the other. Since this case was severed, the ruling in Yoder is not binding here.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    595 A.2d 164
    Paulette WILLETT, Administratrix of the Estate of Richard Lee Willett, Deceased, and Paulette Willett in Her Own Right, Appellants, v. EVERGREEN HOMES, INC., and Michael T. Maloy Individually & tdba Evergreen Homes, Inc., Denise Brogham, Individually and as an Employee of Evergreen Homes, Inc. and James Duncan, Individually and as an Employee of Evergreen Homes, Inc. and Janet Davis, Individually and as an Employee of Evergreen Homes, Inc. and Paul Treacy, Individually and as an Employee of Evergreen Homes, Inc. Armstrong/Indiana Mental Health and Mental Retardation Program, and John D. Hickey, Individually and as Director of the Armstrong/Indiana Mental Health/Mental Retardation Program and Dana Heggenstaller, Individually and as an Employee of Armstrong/Indiana Mental Health/Mental Retardation Program, Appellees.
    Superior Court of Pennsylvania.
    Argued April 10, 1991.
    Filed July 31, 1991.
    Petition for Allowance of Appeal Denied Dec. 16, 1991.

      Richard S. Levine, Pittsburgh, for appellants.
    Robert E. Pryde, Kittaning, for Armstrong/Indiana, appellees.
    Before WIEAND, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order denying Appellant-plaintiff’s Motion to Amend her Complaint and granting partial Summary Judgment in favor of defendants, Family Counseling Center of Armstrong County and two of its employees. Appellant filed her wrongful death and survival action against the Counseling Center, its employees and a number of other parties following her son’s death as a result of drowning in the bathtub of residential facility for mentally retarded individuals where he was residing. In granting Appellees’ motion for summary judgment, the court concluded that the Family Counseling Center, which is a non-profit health and welfare organization, and two of its counselors were immune from suit under Section 603 of the Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4603. Because of this ruling the trial court found Appellant’s request to amend her complaint to include a claim for punitive damages to be moot. On appeal Appellant asks us to review these two conclusions.

Key to our decision in this case is the applicability of the immunity provisions of 50 P.S. § 4603 to the Family Counseling Center and its two employees. The statute provides:

§ 4603 Immunities
No person and no governmental or recognized nonprofit health or welfare organization or agency shall be held civilly or criminally liable for any diagnosis, opinion, report or anything done pursuant to this Act if he acted in good faith and not falsely, corruptly, maliciously or without reasonable cause; provided, however, the causes of action based upon gross negligence or incompetence shall not be affected by the immunities granted by this section.

Appellant in her Brief makes two arguments in support of her position that Appellees are not afforded immunity under the provisions of this statute. She first contends that Appellees’ duties toward her son not only consisted of opinions, reports or diagnoses, for which the statute affords immunity, but Appellees also were officially responsible for her son’s “care and treatment”, conduct for which the statute cannot be construed to provide immunity. Appellant also seeks to have us conclude that her complaint asserts facts sufficient for a claim of gross negligence, conduct which the statute specifically exempts from immunity.

In her first argument, Appellant cites to a decision announced in Saunders v. Latrobe Area Hospital, Inc., 14 Pa.D. & C. 3d 458 (1980). Therein the plaintiffs filed an action against an individual doctor and a hospital, where plaintiff-wife was receiving inpatient treatment. The case involved the alleged negligent and grossly negligent administration of various tranquilizing drugs to plaintiff-wife, which resulted in cardiac and respiratory arrest causing severe brain damage. In construing the application of Section 603 of the Mental Health and Retardation Act of 1966 to the facts of the case, it was stated, in part:

It is defendants’ position that section 603 provides immunity for every facet and phase of admission, day-to-day care and treatment, and discharge of one who is mentally ill or disabled and that liability for any such actions would attach only in cases of gross negligence or incompetence. While we do agree that such is the case as it relates to admissions and discharges, we do not believe that immunity is provided for the negligent day-to-day care and treatment of one who is mentally disabled or ill after he or she has been voluntarily or involuntarily admitted to a treatment facility____
Section 603 of the Mental Health and Mental Retardation Act of 1966 speaks in terms of ‘any diagnosis, opinion, report or any thing done pursuant to the provisions of this act____’ A diagnosis, opinion or report is something utilized in the decision to admit or commit for treatment or to discharge a mentally disabled or ill individual. Though it may be argued that a diagnosis, opinion or report is essential to formulate a plan for care and treatment of an individual, the legislature could have included the terms ‘care,’ ‘treatment’ or words having a similar import. This it did not do. Nor do we believe that the term ‘or anything done pursuant to the provisions of this act’ can be construed to provided immunity for the alleged negligent treatment or care rendered to a mentally disabled or ill individual.
14 Pa.D. & C. 3d at 463-464.

Adopting the reasoning in Saunders, the trial court in this case ruled that other named defendants in the underlying action, specifically Evergreen Homes, Inc., which operated the residence where Appellant’s son lived, and a number of its employees were not entitled to summary judgment because immunity was not applicable to them where their alleged negligence occurred as part of the day-to-day care and treatment of Appellant’s decedent. Although this ruling is not the subject of this appeal, Appellant suggests that the trial court erred in not adopting the same rationale to the Appellees. Appellant asserts that both Appellees and Evergreen Homes were responsible for her son’s care and treatment and that the trial court “grossly trivialize[d] the significant official and profession responsibilities of [Appellees] as professional ‘case managers.’ ” She maintains that foremost among Appellees professional responsibility as case manager was to ensure that Evergreen was an appropriate placement where her son would be carefully supervised during his bathing activities.

We find it unnecessary to adopt or reject the rationale utilized in the Saunders decision since it is clear from the record and pleadings before us that Appellees were not responsible for the day-to-day care of Appellant’s son. As stated in her Brief and in her Complaint, Appellees were responsible for her son’s transfer from another facility and his placement in the Evergreen Homes facility. Although Appellant may question Appellees’ wisdom and/or motivation in arranging this transfer and may allege that the recommendation of placement in the new facility was done without proper evaluation, these allegations each concern Appellees ultimate “opinion” on her son’s placement. In Saunders it was even noted that a “diagnosis, opinion or report is something utilized in the decision to admit or commit for treatment or to discharge a mentally disabled or ill individual.” Id. The allegations made against defendants, the Family Counseling Center and two of its employees relate only to what can be characterized as a “diagnosis, opinion or report” addressing the proper facility for placement of Appellant’s son. These actions of this organization and its employees are clearly subject to the immunity provisions of Section 603.

Appellant further alleges that even if Appellees conduct is not excused from immunity on the basis that it involved the day-to-day treatment of her son, immunity should not attach since she has alleged that Appellees acted in a grossly negligent manner. We cannot accept this argument. The allegations made against employee Dana Heggenstaller included claims that she was responsible for instituting the transfer of Appellant’s son to the new residence, that she persuaded Appellant to approve the transfer, she ignored reports of his adjustment to the facility where he was residing and she failed to properly evaluate the program content, quality of supervision and personnel prior to recommending his placement in the new facility. With respect to defendant-employee Betty Beale, Appellant alleged that she caused Appellant to rely on her expertise and, without a proper investigation, informed Appellant that Evergreen Homes, Inc. was experienced in dealing with epileptic residents. It was also alleged that Ms. Beale ignored the advice of personnel at the facility where Appellant’s son was residing concerning the inadvisability of a transfer and that she based her decision to approve the transfer on the advice of co-workers rather than her own findings. These allegations do not form a basis for a complaint of “gross negligence” and/or “incompetency” which would limit Appellees’ immunity.

In Rhines v. Herzel, 481 Pa. 165, 392 A.2d 298 (1978) a wrongful death and survival action was brought against individual hospital personnel, staff psychiatrists, the superintendent of the hospital, Harrisburg State Hospital and the Department of Public Welfare. It was alleged that the defendants’ failure to provide adequate supervision of a patient with known homicidal tendencies resulted in the death of plaintiff’s decedent. The trial court’s dismissal of the individual defendants on the basis of immunity was reversed by the supreme court which found that the plaintiff alleged facts which placed these defendant’s outside of the immunity protection of Section 603. The court stated:

The facts alleged in the complaint that individual defendants allowed a patient with homicidal tendencies, who required maximum security control, to associate with patients who required no such supervision; that because of the lack of such supervision patient Miller was able to kill patient Rhines and conceal her body on the hospital grounds for several weeks thereafter are ones from which gross negligence could be inferred. These facts may also prove relevant to liability for conduct by official or employees which is lacking in good faith or is false, corrupt, malicious or without reasonable cause, standards which were enunciated in § 603.

481 Pa. at 167-168, 392 A.2d at 300.

In Freach v. Commonwealth, 471 Pa. 558, 370 A.2d 1163 (1977), it was also held that a complaint set forth allegations of gross negligence or incompetence to which immunity was inapplicable. In Freach two teenage boys were allegedly murdered by a William Wright who was released from custody of Farview State Hospital and thereafter obtained a position of authority as a special policeman with the City of Scranton and the Northeast Vector Association. In examining the allegations of the plaintiff’s complaint, the court remarked:

The complaint ... avers that the defendant Shovlin, among others at Farview, failed properly to treat William Wright and unlawfully terminated supervision and released him from confinement; that the release of Wright was improperly approved by agents of the parole division; and that Wright’s release was in part due to a failure on the part of the defendants McEwen and Hughes to inform the officials at Farview of a court order requiring Wright’s commitment. We are satisfied that the complaint, despite its patent prolixity, makes allegations of gross negligence or incompetence as to the defendants Shovel, Burke, McEwen, and Hughes in the performance of acts pursuant to the Mental Health and Mental Retardation Act of 1966.

471 Pa. at 569, 370 A.2d at 1168-1169.

In keeping with the holdings of the Rhines and Freach decisions, the trial court found that other defendants, Evergreen Homes, Inc. and its employees, were not protected by the immunity offered in Section 603, not only because the alleged negligent conduct concerned the day-to-day treatment and care of Appellant’s son, but also because a factfinder could infer gross negligence from the facts alleged against these defendants. The court found that Evergreen Homes, Inc. and its employees were aware of the decedent’s history of seizures, knew the importance of monitoring his bathing activities, and yet left the decedent unattended resulting in his death. Appellant again likens the allegations made against these defendant’s to the allegations made against Appellees and argues that the trial court erred in failing to find that she alleged sufficient facts to support a possible claim against Appellees for grossly negligent conduct. However, unlike the claims she raised against Evergreen Homes, and its employees and unlike the Complaints in Rhines and Freach, Appellant’s complaint in this case cannot be said to include allegations of gross negligence against the Family Counseling Center and its employees. Appellant’s allegations with regard to these defendants concern their approval of a transfer which was allegedly made without obtaining a sufficient evaluation of the program and against the advice of others. This action or inaction by Appellees can not be characterized as “gross negligence”, which is “simply a greater degree of negligence.” Henry v. First Federal Savings and Loan Association, 313 Pa.Super. 128, 459 A.2d 772 (1983).

Appellant submits that her proposed amendments to her Complaint would “amplify” and “specifically detail the original causes of action” while also adding a clause seeking punitive damages. These allegations, however, maintain that Appellees acted with “reckless indifference” to the life of Appellant’s son and made active “misrepresentations” concerning the program content of Evergreen Homes to Appellant and the staff of the facility where he was staying prior to his transfer. Such allegations differ greatly from those contained in her Complaint which do no more than allege ordinary negligence. We do not agree that these amendments will act merely as an amplification of the claims Appellant has already made against Appellees, for which we have judged them to be immune. Rather, Appellant is seeking to allege facts which would take Appellees outside of the protection. of Section 603 and which would add another measure of damages.

While the trial court did not examine the contents of the proposed amendments because it found the motion to be moot in light of its conclusions regarding immunity, we conclude that Appellant’s Motion to Amend, which was filed approximately three years after the death of her son, cannot be permitted since it is barred by the two year statute of limitations. 42 Pa.C.S.A. § 5524. Although amendments to pleadings are freely allowed, an amendment may not introduce a new cause of action after the statute of limitations has run because such may cause prejudice to an adverse party. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981); Junk v. East End Fire Department, 262 Pa.Super. 473, 396 A.2d 1269 (1978). “A new cause of action does arise ... if the amendment proposes a different theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed.” Daley v. John Wanamaker, 317 Pa.Super. 348, 464 A.2d 355, 361 (1983) citing Junk v. East End Fire Department, supra. Appellant here is clearly seeking to allege something other than “ordinary negligence” in her proposed amendments and is basing this theory of recovery on facts which will place Appellees outside of the protection of Section 603. This cannot be done since the operative statute of limitations has expired.

Because we conclude that the trial court correctly determined that Appellees are entitled to the immunities of Section 603, we affirm the order granting them Summary Judgment.

Affirmed.


author: BECK, Judge.

text:
    595 A.2d 169
    COMMONWEALTH of Pennsylvania v. Troy Anthony YINGLING, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1991.
    Filed Aug. 8, 1991.

      Eugene Orlando, Jr., Reading, for appellant.
    Charles Coleman, Asst. Dist. Atty., Reading, for Com., appellee.
    Before WIEAND, BECK and HUDOCK, JJ.
   BECK, Judge.

In the instant case appellant Troy Yingling argues that his previous conviction for underage consumption of alcohol bars a subsequent prosecution for driving under the influence of alcohol on the grounds that the DUI prosecution would violate his constitutional guarantee against double jeopardy. Appellant bases his claim for relief on the recent United States Supreme Court decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), and this court’s en banc opinion in Commonwealth v. Labelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990). The trial court held that Grady did not require dismissal of the DUI prosecution on double jeopardy grounds. We agree and affirm.

The facts from which this appeal arises are as follows. Police officers came upon a one vehicle accident involving a pickup truck belonging to appellant. When the officers first saw the vehicle, no one was in it, but soon thereafter, the officers located appellant nearby. He appeared to be injured from the accident and intoxicated. He had a strong odor of alcohol about him and had difficulty standing and walking. He was taken to the hospital for treatment of minor injuries and at the same time a blood sample was drawn with appellant’s consent to test for blood alcohol content.

The police issued a citation charging appellant, who was nineteen years old, with the consumption of alcoholic beverages in violation of 18 Pa.C.S. § 6308. A criminal complaint was also filed charging Yingling with driving under the influence of alcohol, 75 Pa.C.S. § 3731(a)(1) and (a)(4). Yingling was convicted of underage consumption of alcohol at a summary trial held before the district justice and sentenced to pay fines and costs.

Prior to trial on the DUI charge, appellant petitioned the trial court to dismiss the DUI prosecution. Appellant argued that the Commonwealth is barred from proceeding with the DUI charges because to do so would violate the double jeopardy guarantee. The trial court held that appellant’s prior conviction for underage drinking does not preclude the subsequent prosecution for drunk driving. After analyzing Grady, the trial court succinctly reasoned that “while consumption of alcohol is an essential element of driving under the influence of alcohol, and the conduct for which the Commonwealth will prove, the Commonwealth need not prove the underage consumption, merely the consumption____ [therefore] the Commonwealth would not need to prove conduct for which defendant had been previously prosecuted and would not place the defendant again in jeopardy based on that conduct.” (Trial Court opinion at 3). For the following reasons, we agree with the trial court.

The principles by which courts must interpret what constitutes prosecution for the “same offense” for purposes of the double jeopardy guarantee, have now been settled by the Supreme Court in Grady v. Corbin, supra. In Grady, the Supreme Court stressed the dangers inherent in successive prosecutions and concluded that a mere comparison of statutory elements of the charged offenses was insufficient, by itself, to protect defendants from the harassment and anxiety of multiple trials. Therefore, the Court constructed a two part inquiry to resolve the double jeopardy issue.

To determine whether a prosecution is barred by double jeopardy, the first prong of the inquiry requires the application of the Blockburger test. Blockburger compares the statutory elements of the charged offenses to determine whether they are either identical or one is a lesser included offense of the other. If each statutory provision requires proof of an additional fact which the other does not, they are not the “same offense” under Blockburger and as such the prosecution survives the initial prong of the inquiry.

The second prong of the inquiry was established in Grady. Even if the offenses would pass muster under the Blockburger test, the Grady Court held that an additional requirement must be met to overcome a double jeopardy challenge. We must determine “[whether] the government, to establish an essential element of an offense charged in [a subsequent] prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady v. Corbin, — U.S. at-, 110 S.Ct. at 2093, 109 L.Ed.2d at 564 (emphasis added).

In light of these principles, we assess appellant’s double jeopardy claim. It is clear that the DUI prosecution here is not barred by application of Blockburger. Underage drinking and drunk driving each contain at least one element which the other does not and therefore survive the Block-burger analysis. The former offense requires proof that the accused is under twenty-one years of age, which drunk driving does not. The latter offense requires proof that the accused has operated a vehicle while under the influence of alcohol to the degree specified by the statute. Underage drinking requires neither the use of a vehicle, nor a showing of a particular degree of intoxication. The inquiry does not end here. Pursuant to Grady, we must also determine whether the Commonwealth must prove the conduct which constituted Yingling’s underage drinking offense in order to convict him of DUI. If so, double jeopardy would bar the second prosecution.

Appellant argues that in order to establish the drunk driving charge the Commonwealth necessarily must show that he consumed alcoholic beverages. According to appellant, the consumption of alcoholic beverages was the only conduct involved in his previous conviction for underage drinking. He emphasizes that the fact of his age, although an essential element of the offense, was not conduct. Therefore, he reasons that the conduct for which he was prosecuted was the consumption alone and that because the Commonwealth must re-establish this conduct to prove DUI, Grady bars the subsequent prosecution. We do not agree.

In our view, appellant overlooks an indispensable aspect of the double jeopardy analysis. In order to constitute the “same offense” for double jeopardy purposes, the “conduct” used to establish an essential element of the subsequent charge, must be conduct for which the defendant was convicted in the first prosecution. In the instant case, the mere consumption of alcohol was not the conduct that constituted the previous offense; indeed, such conduct does not constitute an offense at all. In the first prosecution Yingling was not prosecuted for or convicted of consuming alcohol. Without the additional and key element of being underage, the conduct upon which appellant relies would not be a crime for which appellant previously could have been in jeopardy. The status of being underage is an integral aspect of the conduct for which appellant was convicted in the previous prosecution. It cannot be severed from the offense without rendering it meaningless. Thus, while it is true that in order to establish DUI in the subsequent prosecution here, the Commonwealth must prove that appellant had to have consumed alcohol, consuming alcohol is not the conduct for which he was previously prosecuted, nor did that conduct constitute an offense for which appellant previously has been convicted. Since the Commonwealth need not in any way rely on the underage consumption of alcohol to prove DUI, double jeopardy does not bar the instant prosecution.

Order affirmed.

      . 18 Pa.C.S. § 6308 provides, in pertinent part:
      (a) Offense defined.—A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages, as defined in section 6310.6 (relating to definitions).

      . 75 Pa.C.S. § 3731(a)(1) and (a)(4) (Purdon 1991) provide that:
      A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (1) under the influence of alcohol to a degree which renders the person incapable of safe driving; ____or
      (4) the amount of alcohol by weight in the blood of the person is" 0.10% or greater.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . In a singularly analogous case, the Court of Appeals of Wisconsin confronted the same issue. In State v. Harris, 161 Wis.2d 758, 469 N.W.2d 207 (App.1991), the defendant had previously pled guilty to operating a motor vehicle after revocation. Subsequently he was charged with feloniously operating a motor vehicle without the owner’s consent, a charge that arose from the same incident. Relying on Grady and making an argument identical in reasoning to the one appellant advances here, the defendant in Harris argued that double jeopardy barred the second prosecution. In Harris, the defendant argued that his only conduct in the operating after revocation offense was operating a motor vehicle and that the additional element of revocation was a status, not conduct. Therefore, the Harris defendant argued, the conduct (i.e., operating the car) which formed the basis for the first prosecution would be used to prove an essential element (i.e., operating the car) in the second prosecution and therefore offended double jeopardy. The Wisconsin Court of Appeals rejected this argument. Instead it found that "operating while revoked!” was the pertinent conduct in the first prosecution, not merely operating the vehicle. The court held, "For purposes of evaluating the quality or nature of an actor’s conduct ... the actor’s status is an essential component of his behavior and therefore is not to be ignored or separated.” Harris, 469 N.W.2d at 210. Therefore, the court concluded, "Harris’ conduct here was operating while revoked. That is not the conduct upon which the state relies to prove the second prosecution.” Id. By analogy, precisely the same reasoning applies here.


author: HOFFMAN, Judge:

text:
    595 A.2d 172
    Concepcion L. RIVERA, Administratrix of the Estate of Frederick L. Rivera, deceased, Appellant, v. The PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC. a/k/a St. Charles Seminary and Our Lady of Lourdes Catholic Church.
    Superior Court of Pennsylvania.
    Argued April 25, 1991.
    Filed Aug. 13, 1991.

      Jeffrey M. Stopford, Media, for appellant.
    Walter A. McClatchy, Jr., Upper Darby, for participating party.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order sustaining the preliminary objections of appellee/garnishee, First State Insurance Company, challenging personal jurisdiction. The single issue presented is whether, under the Pennsylvania Rules of Civil Procedure governing service in garnishment proceedings, service can properly be effected outside of Pennsylvania on an out-of-state garnishee who holds title to no real property in Pennsylvania. After careful review, we agree with the trial court that service was improper in this case and, thus, we affirm.

The trial judge, The Honorable Louis G. Hill, has aptly summarized the relevant facts as follows:

This garnishment action was commenced by [appellant], Concepcion L. Rivera, who holds a judgment against Our Lady of Lourdes Catholic Church. The garnishee, First State Insurance Company, is the excess insurance carrier for the Archdiocese of Philadelphia, with respect to any judgment greater than $500,000. First State is a Delaware Corporation with its principal office located in Boston, Massachusetts. It has no office within the Commonwealth of Pennsylvania.
On October 4, 1989, [appellant] served a writ of execution by adult resident of Massachusetts on an employee of the mailroom of First State’s office in Boston. On March 6, 1990, First State filed preliminary objections on the grounds that service was ineffective and venue improper.

Trial Court Opinion, August 30, 1990, at 1-2. After argument, the court, on August 30, 1990, sustained First State’s preliminary objections. This timely appeal followed.

Appellant contends that service was proper because it was made in accordance with Pa.R.Civ.P. 3112(b)(2), which permits substituted service by competent adult on an out-of-state garnishee. Appellant claims that the trial court’s interpretation of Rule 3112 erroneously limited the Rule to garnishment actions involving in-state garnishees and/or garnishees with in-state property. We cannot agree.

It is well-settled that preliminary objections should be granted only in cases that are clear and free from doubt. See, e.g., Patton v. Republic Steel Corp., 342 Pa.Super. 101, 113, 492 A.2d 411, 417 (1985); see also Interstate Traveller Serv., Inc. v. Commonwealth Dept. of Environmental Resources, 486 Pa. 536, 406 A.2d 1020 (1979).

Service in garnishment proceedings is governed by Rules 3108, 3111, 3112, and 3113. Rule 3108(a)(5) provides as follows:

(a) Service of the writ [of execution] shall be made by the sheriff in the case of
(5) real property of the defendant, title to which is recorded in the name of a third party, by levy and attachment as provided by Rule 3112;

Id. Rule 3111(a) provides that:

The writ shall be served by the sheriff upon the garnishee in the manner prescribed by Rule 402(a) except as otherwise provided by Rules 3112 and 3113. The sheriff shall furnish the garnishee with an additional copy of the writ for each defendant. If the garnishee served was not named in the writ he shall be added as a garnishee and return made accordingly.

Id. Rule 3112, the exception referred to in Rule 3111(a), in turn, provides as follows:

Rule 3112. SERVICE OF THE WRIT UPON GARNISHEE. REAL PROPERTY OF DEFENDANT IN NAME OF THIRD PARTY.
(a) The sheriff shall execute the writ against real property of the defendant, title to which is recorded in the name of a third party, by serving the third party as garnishee and noting upon the writ a description of the real property and a statement that he has levied upon defendant’s interest therein.
(b) The plaintiff shall have the right of service upon the garnishee
(1) in any other county by having the sheriff of the county in which the writ is issued deputize the sheriff of the other county where service be may be had, or
(2) outside the state by having any competent adult serve the garnishee personally and file an affidavit thereof in the action.
(c) If the garnishee cannot be served as provided in Rules 3111(a) or 3112(b), he shall be served by (1) posting a copy of the writ on a public part of the property and (2) handing a copy of the writ to the person in actual possession of the property or, if no one is in actual possession, by sending the garnishee a copy of the writ together with an inventory of the property attached, by registered mail directed to his last known address or, if no address is known and an affidavit to that effect is filed, by publication in such manner as the court by special order shall direct.

Id. (emphasis added).

At issue in the instant case is the proper construction of Rule 3112(b)(2) which permits substituted service by a competent adult outside the Commonwealth. We are asked to decide whether an out-of-state garnishee who does not hold real property in this Commonwealth may be served pursuant to Rule 3112(b)(2). This apparently is an issue of first impression for this Court.

Appellant argues that Rule 3112(b) is not limited to garnishees holding title to real property within the Commonwealth. Specifically, appellant claims that (1) the absence of any reference to real property in subsection (b) indicates an intent that the rule is not so limited; (2) the title of Rule 3112, “Service of the Writ upon Garnishee. Real Property of Defendant in Name of Third Party,” suggests two separate areas, the former referring to subsection (b) and the latter to subsection (a); and (3) nothing in the plain meaning of Rule 3112 limits its scope to real property. After careful review, we agree with the trial court that Rule 3112(b)(2) permits substituted service on an out-of-state garnishee only where the judgment creditor seeks to attach real property located within the Commonwealth. See Trial Court Opinion, August 30, 1990, at 5. Because the trial court has thoroughly and, in our view, properly disposed of this issue in its Opinion, we quote from that Opinion at length.

After an extensive review of the applicable rules, this court declines to interpret Rule 3112 as urged by plaintiff and finds that Rule 3112(b)(2) permits substituted service by competent adult only in cases involving real property.
Rules 3111, 3112 and 3113 governing service in a garnishment proceeding must be read within the framework of the rules governing the “Enforcement of Money Judgments for the Payment of Money.” Pa.R.Civ.P. 3101 et seq.
Rule 3108(a)(5) provides as follows:
(a) Service of the writ shall be made by the sheriff in the case of
* * sjt # sj«
(5) real property of the defendant, title to which is recorded in the name of a third party, by levy and attachment as provided by Rule 3112;
Pa.R.Civ.P. 3108(a)(5).
Rule 3108(a)(5) refers to “Rule 3112” as a whole without limiting its reference to “Rule 3112(a).” In this court’s opinion, had it been the drafters’ intent that only subsection (a) of Rule 3112 apply to real property, the reference within Rule 3108(a)(5) would have indicated as much. Plaintiff would have this court ignore the plain meaning of Rule 3108(a)(5) which unequivocally provides that Rule 3112 as a whole applies in the very limited circumstance where real property is held of record in the name of a third party.
Also, to interpret Rule 3112(b) as permitting substituted service generally would make the rule internally inconsistent. Subsection (c) of Rule 3112, which refers to service by ‘posting a copy of the writ on a public part of the property,’ can only be read as applying to cases involving real property, even though “real property” is not specifically mentioned. The fact that subsections (a) and (c) of Rule 3112 apply to real property, compels a conclusion that subsection (b) is limited to real property as well.
In this court’s opinion, the Supreme Court intended to create this limited exception permitting substituted service on an out-of-state garnishee only where the judgment creditor seeks to attach real property located within the Commonwealth. In such a case, the court’s jurisdiction is derived from the location of the real property within the state. Thus, the due process rights of the out-of-state garnishee are not violated. See 9 Goodrich Amram 2d § 3112(b):l.

Trial Court Opinion, August 30, 1990, at 5-6.

We note also that, in addition to the difficulty with appellant’s argument as a matter of statutory construction, the interpretation proposed by plaintiff could raise serious due process concerns. As the trial court aptly stated:

If Rule 3112(b) is interpreted, as urged by plaintiff, to permit any competent adult to serve a writ of execution on a resident of State A as a garnishee, it could force the garnishee to appear in Pennsylvania regardless, for example, of whether there was long-arm jurisdiction or not. It would afford less protection to an out-of-state resident as a garnishee than that same party would receive had that party been the defendant in the underlying case. [Footnote omitted.] The interpretation of Rule 3112(b) urged by plaintiff would have the far reaching effect of permitting a judgment holder to attach out-of-state property and to force an out-of-state garnishee to answer to the garnishment proceedings in the Commonwealth regardless of whether the courts of this Commonwealth have any jurisdiction over the garnishee or the property involved.
Admittedly, the facts in the instant case are not as compelling since the courts of this Commonwealth have jurisdiction over an out-of-state insurance company by virtue of its doing business in the Commonwealth and the existence of minimum contacts within the state.

Trial Court Opinion, August 30, 1990, at 6-7.

In summary, we agree with the trial court that Rule 3112(b) permits substituted service by competent adult on an out-of-state garnishee only where the judgment creditor seeks to attach real property located within Pennsylvania. Because First State is an out-of-state garnishee with no real property in Pennsylvania, we conclude that service of process was improper. Accordingly, we affirm the trial court’s grant of appellee’s preliminary objections.

Order affirmed.

      . See Pa.R.Civ.P. 3108, 3111, and 3112.

      . We note preliminarily that an order that sustains preliminary objections in the nature of a demurrer without dismissing the complaint or otherwise terminating the action between the parties is interlocutory, and, therefore, lacks the requisite finality to be an appealable order. See Leach v. Hough, 352 Pa.Super. 213, 215, 507 A.2d 848, 849 (1986). The trial court’s order here did not sustain preliminary objections in the nature of a demurrer. Rather, the court sustained preliminary objections challenging jurisdiction over the person of the garnishee. An order sustaining preliminary objections challenging personal jurisdiction is final and appealable. See, e.g., Bergere v. Bergere, 364 Pa.Super. 100, 102, 527 A.2d 171, 172 (1987); Radakovich v. Weisman, 241 Pa.Super. 35, 41-42, 359 A.2d 426, 430 (1976). Accordingly, this appeal is proper.

      . Pa.R.Civ.P. 402(a) is the general rule for service of process in civil cases and provides as follows:
      (a) Original process may be served
      (1) by handing a copy to the defendant; or
      (2) by handing a copy
      (i) at the residence of the defendant to an adult member of the family with whom he resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or
      (ii) at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides; or
      (iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.

        Id.

      . We note that an almost identical issue was presented to Judge Hill in the related case of Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, 1 Pa.D. & C.4th 106 (1988). There, appellant attempted to collect from Our Lady of Lourdes’ primary insurance carrier, Zurich Insurance Company. Zurich was based in Illinois and had a local office in Pittsburgh, Pennsylvania. In that case, service of the writ of execution was made by a competent adult on an employee in Zurich’s Illinois office. Judge Hill sustained Zurich’s preliminary objections on the grounds that service was ineffective under Pa. R.Civ.P. 3111 and 3112, holding that Rule 3112(b) was limited to cases involving real property.

      . We note also that appellant is not without the means to enforce her judgment. She has the option of transferring the case to Massachusetts and pursuing attachment there or serving First State in Pennsylvania through the Insurance Commissioner or the Secretary of State in Harrisburg.


author: CERCONE, Judge:

text:
    595 A.2d 176
    Paul BAVERSO, Appellant, v. STATE FARM INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued May 16, 1991.
    Filed Aug. 14, 1991.

      Robert A. Loch, Pittsburgh, for appellant.
    John C. Donaher, III, Pittsburgh, for appellee.
    Before CAVANAUGH, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the July 2, 1990 order of the Court of Common Pleas of Allegheny County denying the appellant’s petition to compel arbitration. We reverse.

Appellant, Paul Baverso, sustained personal injuries when the motorcycle he was driving was involved in an accident with an underinsured motorist. Baverso settled with the motorist’s insurer, and with his insurance carrier which held his underinsurance coverage. He then made a claim with appellee, State Farm Insurance Company, under an automobile insurance policy it had issued to his mother. That policy purports to provide underinsurance coverage to the mother and anyone who lives with her. Appellee denied coverage on the grounds that Baverso was not an “insured” under the policy because he did not live with his mother at the time of the accident. Appellant filed a petition to compel arbitration in the Court of Common Pleas which the lower court denied. This timely appeal followed.

Appellant raises the following questions for our review:

1. did the trial court erred in finding that the issue of whether the appellant was an “insured” and therefore eligible to receive underinsurance benefits under appellee’s automobile insurance policy was beyond the scope of the arbitration provision in the policy and further err in denying appellant’s petition to compel, arbitration;
2. did the trial court err in failing to grant appellant’s petition for counsel fees incurred for the preparation and presentation of the petition to compel arbitration, where appellee’s failure to respond to appellant’s demand for arbitration constituted arbitrary and vexatious conduct.

We will address each of these issues seriatim.

In its opinion, the lower court determined that it was inappropriate to submit the question of whether appellant was insured under the policy to the arbitration panel. The court reasoned that the policy provisions relating to arbitration presuppose that the claimant is an insured under the policy and that arbitration will occur only if the claimant’s status as an insured is not in dispute. The pertinent provisions of the insurance policy in question are as follows:

Section III—Uninsured Motor Vehicle, and Underinsured Motor Vehicle

Who is an Insured
Insured—means the person or persons covered by uninsured motor vehicle and underinsured motor vehicle coverage.
This is: ...
3. their relatives;
“Relatives” is further defined as follows:
Relative— ... means a person related to you [the insured] or your spouse by blood, marriage or adoption who lives with you. [emphasis added]

The policy’s arbitration provisions include the following clauses:

Deciding Fault and Amount
Two questions must be decided by agreement between the insured and us:
1. is the insured legally entitled to collect damages from the owner or driver of an uninsured motor vehicle or underinsured motor vehicle; and
2. If so, in what amount?
If there is no agreement, these questions shall be decided by arbitration at the request of the insured or us. The Pennsylvania Uniform Arbitration Act, as amended from, time to time, shall apply.

The Supreme Court of Pennsylvania has recently discussed the scope of an arbitration hearing relating to an underinsurance provision similar to the one set forth here. In Brennan v. General Accident Fire and Life Assurance Corporation, 524 Pa. 542, 574 A.2d 580 (1990), an estate administrator filed suit against an insurer to compel arbitration. The trial court issued an order compelling arbitration. At the arbitration, the estate administrator proffered a theory of estoppel to recover from the insurer. The arbitration panel found, however, that estoppel did not preclude the insurer from raising any policy defenses. The arbitrators also found, that the insurer was liable to the estate in the amount of $30,000.00. Id., 524 Pa. at 546, 574 A.2d at 581.

Following the award, the insurer filed a petition to vacate the award claiming that the arbitrators exceeded their jurisdiction and/or authority by deciding an issue not before them. Specifically, the insurer argued that the issue of whether it could “set-off” any monies appellant received from third party settlements was beyond the scope of the arbitration. The court of common pleas denied the petition and affirmed the arbitration award. On appeal, this court reversed, holding that the set-off issue was beyond the scope of the arbitration. Id., 524 Pa. at 547, 574 A.2d at 582. Allocatur was subsequently granted by the supreme court which reversed this court. In his learned opinion, Justice Papadakos held that a review of the arbitration clause reveals that arbitration is mandated whenever the insured and the insurer disagree when a party is legally entitled to recover damages. Id., 524 Pa. at 549, 574 A.2d at 583. The court also found that once it is determined that a substantive dispute is arbitrable, the arbitrator normally has the authority to decide all matters necessary to dispose of the claims. Id.

Various decisions of this court have applied the holding in Brennan to find a variety of issues properly before a panel of arbitrators. In Anderson v. Erie Insurance Group, 384 Pa.Super. 387, 558 A.2d 886 (1989), for instance, a panel of this court found that questions relating to the validity of an insurance policy and issues relating to persons covered under the policy were properly before a panel of arbitrators. Citing our supreme court’s decision in Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184 (1975), another panel of this court held that even a general attack on an insurance policy for fraud must be decided by the arbitration panel. Anderson, supra, 384 Pa.Super. at 394, 558 A.2d at 890.

More recently, a panel of this court held that the type of wording found in Brennan creates no limit to the jurisdiction of the arbitrators over what issues may be submitted and that all disputes between the insurance company and the insured will be arbitrated. Lamar v. Colonial Penn Insurance Company, 396 Pa.Super. 527, 531, 578 A.2d 1337, 1339 (1990). See also Nationwide Mutual Insurance Co. v. Pitts, 400 Pa.Super. 269, 583 A.2d 489 (1990) (wording of insurance policy was broad enough to encompass a requirement that any dispute concerning coverage be referred to arbitration). The reasoning in Anderson, Flightways, and Lamar applies with equal weight in the present case. While the issue of whether appellant, Baverso, is an insured under the contract is seemingly a prerequisite to arbitration under State Farm’s policy, all issues under this type of arbitration clause must be determined by the panel of arbitrators.

In support of its argument for judicial determination of extrinsic matters, appellee cites the decision of the Third Circuit in Allstate Insurance Company v. Gammon, 838 F.2d 73 (3rd Cir.1988). In a case directly on point, the court of appeals decided that under Pennsylvania law, an automobile insurer had the right to a judicial interpretation of whether an insured’s stepson was a “person insured” under the policy, despite the presence of an arbitration clause. Id. at 76. The court found such a determination to be a prerequisite to arbitration. Unfortunately, however, the scholarly court of appeals did not have the benefit of our supreme court’s determination in Brennan when deciding Gammon. Had the court been able to follow Brennan and its progeny, we are confident their result would have been different.

In fact, various federal district courts have now applied the Brennan holding to find arbitrability of various issues. In Hawthorne v. Kemper Group, 758 F.Supp. 296 (E.D.Pa. 1991), the federal district court found the issue of whether the plaintiffs were entitled to coverage under defendant’s uninsured motorist, policy was properly before a panel of arbitrators. In fact, the insurer expressly argued that plaintiff was not a “named insured” under his employer’s policy. Id. at 297. The court held the arbitration panel had full authority to reach coverage issues based on Brennan, supra.

In Aetna Casualty & Surety Company v. Hameen, 758 F.Supp. 1049 (E.D.Pa.1990), the district court found that questions relating to the maximum amount of coverage available under an insurance policy was within the scope of arbitration proceedings. The court found that Brennan grants broad jurisdiction to arbitrators chosen under an arbitration clause virtually identical to the one presented. If the insurer had wished to exclude questions of coverage from the scope of arbitration, it could have specifically done so. Id. at 1051.

Similarly, State Farm has characterized the issue presented here as a coverage dispute. We agree with the district court in Aetna, supra, that if State Farm wished to exclude this particular issue from arbitration, it could have drafted clear exclusionary language to that effect. If this panel were to find that all questions relating to coverage were properly raised in a judicial proceeding rather than in arbitration, a claimant would be subject to the cumbersome process of litigating issues before a judge. Such a procedure would undoubtedly cost insureds countless amounts of money and time to compel arbitration. This court declines to erect another hurdle for insureds to surmount where the impending result would discourage the submission of claims. The objective of arbitration is to rid the claims process of precisely that tedious procedure. Arbitration allows the parties to arrive at a more expeditious resolution of their disputes without the impediments of judicial suit, such as the ones found in the instant suit. See Elkins & Co. v. Suplee, 371 Pa.Super. 570, 538 A.2d 883 (1988) (the courts of this Commonwealth favor the settlement of disputes by arbitration to promote the swift and orderly disposition of claims). We therefore reverse the trial court and remand for entry of an order granting appellant’s petition to compel arbitration.

Appellant asks this court to award counsel fees to him in this action resulting from State Farm’s vexatious conduct. 42 Pa.C.S.A. § 2503(7). We find no evidence that State Farm's actions were intended to harass the appellant. Nor do we find the methods State Farm employed in this litigation to be oppressive. The primary issue raised here was ripe for judicial review in this jurisdiction. We therefore find that the trial court did not err in denying an award of counsel fees.

Order of July 2, 1990 vacated and remanded with directives.

Jurisdiction relinquished.


author: TAMILIA, Judge:

text:
    595 A.2d 179
    UNION NATIONAL BANK OF PITTSBURGH, Assignee of Housing Mortgage Corporation, Appellant, v. James A. CIONGOLI and Louise T. Ciongoli, his Wife.
    Superior Court of Pennsylvania.
    Argued May 22, 1991.
    Filed Aug. 6, 1991.

      Louis P. Vitti, Pittsburgh, for appellant.
    Kenneth R. Behrend, Pittsburgh, for appellees.
    Before TAMILIA, POPOVICH and MONTGOMERY, JJ.
   TAMILIA, Judge:

Union National Bank (mortgagee) appeals from the September 5, 1990, Order denying its petition to reassess damages against mortgagors, James A. and Louis T. Ciongoli, appellees herein. The pertinent procedural facts follow.

On April 29, 1987, appellant filed a mortgage foreclosure complaint against the appellees. By Order dated July 11, 1988, the trial court granted mortgagee’s motion for summary judgment and entered judgment in mortgage foreclosure in appellant’s favor. Judgment was affirmed by Order of this Court dated April 27, 1989, 563 A.2d 201 and, on September 17, 1990, the Supreme Court granted mortgagors’ petition for allowance of appeal, which appeal is pending. In the interim, on February 9, 1990, the appellant filed a praecipe for writ of execution and a sheriff’s sale was ultimately scheduled for August 6, 1990. The face amount of the writ was $5,451.81, which included the amount owed by mortgagors, interest through May 7, 1990, the date of the originally scheduled sheriff’s sale, and sheriff’s costs. On Friday, August 3, 1990, appellees paid the sheriff the $5,451.81 to stop the sale and the sheriff accepted the amount, disregarding two written requests by appellant’s counsel to amend the writ to include an additional $9,735.80, representing interest and late charges, escrow advances, attorneys’ fees and costs. On Monday, August 6, 1990, the sheriff’s office advised counsel for appellees additional funds in the amount of $9,735.85 were required to prevent the sale. Appellees refused to pay the additional money and, on August 15, 1990, obtained a stay of the sheriffs sale pending the outcome of appellant’s petition to reassess damages. The petition was denied as was appellant’s motion for reconsideration and this appeal followed.

Appellant/mortgagee argues the court abused its discretion by refusing to amend the judgment without a factual hearing on the matter which, appellant argues, would have disclosed local practice and custom in Allegheny County, as well as the sheriff’s alleged clerical error.

In finding the appellants were precluded from amending the judgment the appellees had satisfied in full, the trial court analogized the case to Chase Home Mortgage Corp. v. Good, 370 Pa.Super. 570, 537 A.2d 22 (1988), wherein on the day of the scheduled sheriff sale, the mortgagor tendered the judgment amount plus costs and this Court affirmed the trial court’s dismissal of mortgagee’s petition to reassess damages, holding the judgment could not be amended after it had been paid in full. Id., 370 Pa.Superior Ct. at 573-74, 537 A.2d at 24. Appellant contends Chase is distinguishable from the facts before us arguing he did take action to amend the judgment and, unlike the mortgagee in Chase, was not afforded the opportunity for an evidentiary hearing on his petition to reassess.

Appellant’s attempts to distinguish the present case from Chase must fail. Appellant zealously followed the Pennsylvania Rules of Civil Procedure throughout its mortgage foreclosure action against appellees up to and including its praecipe for writ of execution on judgment entered, yet there is no indication appellant petitioned the court for an amendment to the judgment they received prior to payment in full of the face amount of the writ. Instead, appellant relies on an alleged Allegheny County custom to support its contention the letters it sent to the sheriff were sufficient to increase the amount owed by appellees. It is this alleged local custom upon which appellant relies to distinguish this case from Chase. While there is no evidence the appellant made any attempt to notify appellees of its two unilateral attempts to increase the amount due, appellees did receive notice that the amount they were required to pay to satisfy the judgment against them and retain their home was $3,684.17 plus interests and costs. Accordingly, the appellees, in good faith, three days prior to the scheduled August 6, 1990, sheriffs sale, satisfied the face value of the writ, $5,451.81. We find appellant’s ex parte attempts to increase the writ of execution figure were procedurally futile as well as constitutionally unsupportable. Because the holding in Chase prohibits amendment of a judgment after it has been satisfied, and letters or affidavits to the sheriff to increase a judgment, without amendment of the judgment by the court before the judgment is satisfied, are of no effect, we find no merit to appellant’s contention the trial court abused its discretion by refusing to amend the previously satisfied judgment.

Appellant also attempts to distinguish Chase on the theory appellant herein did not have an evidentiary hearing on its petition to reassess damages. The record indicates appellant notified appellees and the sheriff the Petition to Reassess would be presented to the motions judge of Allegheny County on August 17, 1990, at 9:00 a.m. The next record entry is appellee’s reply to the petition and brief in support thereof which, according to the certificate of service, was hand delivered to appellant’s counsel on August 17th. The record does not disclose what occurred on August 17th, however, on September 5, 1990, the Honorable David Cercone denied the petition. All three documents, the petition, reply and Order, were filed in the prothonotary’s office on September 6, 1990. We can therefore assume the trial court had the petition and reply available for his review when considering the matter before him. There is no evidence of record which indicates appellant requested a hearing on the matter nor do we believe appellant has been prejudiced by the lack of a hearing. Appellant certainly could have presented a brief in support of his motion to the trial court. Moreover, as a brief was submitted and argument presented before this Court, we have had the opportunity to carefully review and consider appellant’s full argument and find it is not persuasive. The trial judge considered the pleadings presented to him and no prejudice ensued to appellant due to the court’s failure to hold a hearing as the result would not have been different had there been a hearing. Appellant relies on the alleged local custom to justify his course of action and error by the sheriff in failing to follow the practice of increasing the judgment amount, pursuant to letters from the appellant, prior to payment by appellee. As discussed below, this could not have any bearing on the result.

Appellant argues the court erred by failing to take judicial notice of his assertion Allegheny County custom and practice dictate a creditor may arbitrarily and unilaterally increase a dollar certain judgment on the face of a sheriff’s writ in a mortgage foreclosure action. Appellant, however, has failed to offer any evidence of such a custom but rather relies on the bald allegation such a custom exists. In 1984, the Commonwealth Court held it could not, under the concept of judicial notice, enlarge upon the actual record by conducting a title search. Active Amusement Co. v. Zoning Board of Adjustment, 84 Pa.Cmwlth. 538, 479 A.2d 697 (1984). For the same reason, this Court cannot and will not go beyond the record before us to search for support for appellant’s custom and usage argument. Assuming arguendo the appellant had established by competent evidence the existence of the local custom in Allegheny County, the result would not be different.

Recently, the United States Supreme Court handed down an Opinion which held it is violative of the fourteenth amendment to, without prior notice or hearing and merely upon plaintiff’s verification of the validity of his claim and petition to the state court, obtain an attachment on respondent’s home. In Connecticut and Digiovanni v. Doehr, — U.S. -, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), the Court found unconstitutional a Connecticut statute which permitted ex parte attachment on a mere showing of probable cause and when notice of attachment was received by respondent only after the sheriff had attached the property. The fact the respondent was notified of the right to a post-attachment hearing was inconsequential because it permitted ex parte attachment absent a showing of extraordinary circumstances.

While the case sub judice is not on all fours with Connecticut, the principle applied there is fully applicable here. If failure to give notice and provide for a hearing is violative of due process in an attachment proceeding, how much more critical are those requirements in an execution proceeding. The mere taint of attachment is held to be a deprivation. Here, execution would result in a total deprivation for a homeowner unprepared to meet the increased amount of the judgment and without having the opportunity to contest the validity of the additional charges. The test as to the validity of any procedure involving deprivation of property through state action, such as a sheriffs sale, has been enunciated in numerous holdings by the United States Supreme Court. The analysis employed in Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), is cited in Connecticut as the underlying principle which should guide such action.

That analysis resulted in the now familiar threefold inquiry requiring consideration of ‘the private interest that will be affected by the official action’; ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards’; and lastly ‘the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’

Id., — U.S. at-, 111 S.Ct. at 2112, quoting Matthews, 424 U.S. at 334, 96 S.Ct. at 902. As pursued in Connecticut, the Matthews test, when applied here, makes it absolutely clear that a custom or procedure which presents amounts to be garnered in execution, which were not reviewed by a court and without notice to the defendant and presented to him for the first time at the sheriff sale, violate the fourteenth amendment due process clause which prohibits the taking of property without due process of law. Once judgment was entered, pursuant to the procedures employed in this case which comport with due process, any additional amounts levied without a proper court proceeding but simply by letter or affidavit to the sheriff cannot be sustained. Thus the issue raised by appellant as to custom and usage, when measured against Matthews and aside from the binding effect of Chase, supra, in satisfying the judgment, leads to the inescapable conclusion it is totally without merit. In essence, the alleged custom permits a prejudgment execution since the additional amounts charged to the preexisting judgment were never considered or passed upon by the court and notice of their imposition was never given to the defendant. On its face, an addition to a judgment two or three times the amount of the writ, without notice to the debtor and absent judicial review as to the validity of the claim, and without recourse to a bond in the event of error, is unfair if not illegal.

The alleged customary practice for revising/increasing the amounts due on judgments in Allegheny County can not be condoned. Unilateral additions by a creditor without notice to the debtor or to the court, which could review the validity of the increase, satisfy no state interest and impose an intolerable burden on the private interests of the homeowner. See Matthews, supra. If appellant knew the amount of the judgment was in error and believed it necessary to reassess the amount of the damages, it should have petitioned the court to amend the judgment prior to its satisfaction by appellee. The burden placed on the government in providing additional safeguards is outweighed by protection which must be afforded to the homeowner/debt- or under the facts of this case.

For the foregoing reasons, we agree with the trial court Chase is controlling and the appellant is precluded from reassessing damages on a judgment which has been satisfied in full. We also hold local custom or practice as alleged by appellant is a denial of due process and can not be a basis for awarding a new hearing under the circumstances of this case.

Order affirmed.

POPOVICH, J., concurs in the result.

      . This is not to say that, by local rule, a means can not be established whereby the parties can adjust the judgment amount by agreement mutually considered and entered into with the interests of the parties fully protected.


author: DEL SOLE, Judge: CIRILLO, Judge,

text:
    595 A.2d 183
    COMMONWEALTH of Pennsylvania v. Frank EDWARDS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 22, 1991.
    Filed Aug. 19, 1991.

      John C. Tylwalk, Public Defender, Lebanon, for appellant.
    Daniel G. Ehrgood, Asst. Dist. Atty., Lebanon, for Com., appellee.
    Before CIRILLO, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgment of sentence imposed following a jury trial. Appellant, Frank Edwards was charged with escape as a result of two incidents which occurred while he was an inmate at the Lebanon County Correctional Facility. Appellant who was a participant in the work release program was late twice in returning to the prison. Pursuant to placement in this program, Appellant signed a work release agreement in which he agreed that he would go directly to and from his place of employment according to an agreed upon travel route. On one occasion, Appellant who was to return to the prison at 12 midnight, returned six minutes late and another time he was seven minutes late. Following his conviction, he was sentenced to an additional term of 8-23 months to run at the conclusion of his current sentence and fined $300. Motions for a new trial/arrest of judgment were denied.

Evidence at trial established Appellant had admittedly deviated from his assigned route of travel. He had accepted a ride on two occasions in violation of the work release agreement and visited the home of a friend. On one of these occasions, Appellant confessed to drinking a small amount of beer, also a violation of the agreement. It was these deviations which twice caused Appellant to be late returning to the prison.

On appeal, Appellant first contends the trial court erred in charging the jury that placement in the work release program constitutes being in “official detention” as that term is understood in the escape statute. Appellant argues that when one is out of prison under terms of the work release program they are not in any type of detention. We can not agree. The crime and definition of escape is codified in 18 Pa.C.S. § 5121 and reads as follows:

(a) Escape.—A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
(e) Definition.—As used in this section the phrase “official detention” means arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; ...

In Commonwealth v. Brown, 261 Pa.Super. 240, 396 A.2d 377 (1978), this court held that a prisoner’s participation in a work release program was official detention. Therefore, the trial court did not err in charging the jury that placement in a work release program constitutes being in official detention.

Having determined that Appellant was in official detention during his participation in the work release program, we must further determine whether there was sufficient evidence to support the verdict. In determining whether the evidence is sufficient to support a conviction, we accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Crawford, 334 Pa.Super. 630, 483 A.2d 916 (1984). Appellant contends the Commonwealth failed to establish beyond a reasonable doubt that he had removed himself from official detention. We agree.

This very issue was recently addressed by a panel of this court in Commonwealth v. Hall, 402 Pa.Super. 23, 585 A.2d 1117 (1991). In that case a prisoner in the work release program was picked up by his girlfriend who was to drive him to his place of employment. Instead of proceeding directly to work, they stopped at his home for approximately one hour. This deviation was not requested and no emergency existed. Hall was charged with escape. Our court held that the conduct proscribed by the escape statute did not include Hall’s behavior because the statute requires that a prisoner intend to remove himself from official detention. The court stated that the Commonwealth failed to show that Hall intended unlawfully to remove himself from official detention; that the reasonable definition of unlawful removal in subsection (a) of the escape statute does not encompass a situation where a prisoner does not substantially deviate from a prescribed travel route, goes to work and returns to official custody as prescribed by his work release program.

We acknowledge that the present case differs from the facts in Hall in two insignificant ways. In the case sub judice, unlike the prisoner in Hall, Appellant was late in returning to the prison. Appellant also admitted to having consumed a small amount of alcohol. Nevertheless, in light of our decision in Hall, we find in the present case that although Appellant violated the terms of the work release agreement, conduct we by no means condone, his ill advised detour to the home of a friend, fails to rise to the level of a substantial deviation. As the majority concluded in Hall, Appellant’s violation of his work release agreement is an administrative matter. Prison officials have recourse via administrative sanctions, such as revocation of Appellant’s participation in the work release program. Therefore we hold that Appellant’s challenge to the sufficiency of the evidence has merit.

We note that we agree with the concern expressed by Judge Olszewski in his concurrence in Hall, that this decision will provide a poor precedent by inviting prisoners participating in a work release program to abuse this privilege through conduct such as that of the appellant herein. However, like Judge Olszewski, we can not conclude it was the intent of the legislature to characterize the conduct of Appellant in the instant case to constitute an escape under 18 Pa.C.S. § 5121. If conduct which amounts to less than a substantial deviation from a prescribed travel route, while a participant in a work release program, is to be characterized as a violation of the escape statute, we hold it is better left to the legislature to express this view through an amendment.

Judgment of sentence reversed, and sentence for escape is vacated. Jurisdiction is relinquished.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent.

I agree with the majority that Edwards was in official detention during his participation in the work release program, see 18 Pa.C.S. § 5121(e); Commonwealth v. Brown, 261 Pa.Super. 240, 396 A.2d 377 (1978), however, I strongly disagree with that part of the majority opinion which con-eludes that the Commonwealth failed to prove beyond a reasonable doubt that Edwards’ actions constituted escape.

It is well settled in courts of this Commonwealth that [i]n reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt.

Commonwealth v. McIlvaine, 385 Pa.Super. 38, 45, 560 A.2d 155, 159 (1989). Instantly, the Commonwealth presented the following evidence in support of its charge that Edwards was attempting escape: 1) on two occasions Edwards returned to prison from his place of employment beyond the midnight deadline set for his return; 2) Edwards admitted to deviating from his assigned route of travel from his place of employment to the prison by accepting an automobile ride from a friend and by stopping at the home of that friend; and 3) Edwards confessed to drinking beer on one of these occasions. Despite this evidence, which unequivocally demonstrates that Edwards purposefully breached the work release agreement which specified that he was to go directly to and return directly from his place of employment by walking a specific travel route, the majority finds that Edwards’ behavior does not constitute an attempt to remove himself from official detention. I disagree.

The crime of escape is defined as follows:

A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose.

18 Pa.C.S. § 5121(a). Official detention is described as ... arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.

18 Pa.C.S. § 5121(e). See also Brown, supra.

The majority relies upon a recent opinion by a panel of this court for the proposition that if a prisoner does not intend to unlawfully remove himself from official detention as demonstrated by a “substantial deviation” from a mandated travel route prescribed by his work release program, he has not “escaped” as that term is defined in section 5121. See Commonwealth v. Hall, 402 Pa.Super. 23, 585 A.2d 1117 (1991). However, I can find no basis for such an interpretation and dilution of section 5121 within the escape statute itself. Furthermore, absent any authority to the contrary, I am not convinced that the legislature intended such an interpretation. See Commonwealth v. Lisboy, 392 Pa.Super. 411, 573 A.2d 222 (1990) (when language of a statute is clear and unambiguous the judiciary must interpret provisions according to their plain meaning and common usage); Commonwealth v. Revtai, 343 Pa.Super. 149, 494 A.2d 399 (1985) (where the words of a statute are clear, the letter thereof will not be disregarded under the pretext of pursuing an unstated legislative intent).

First, I note that section 5121 makes no mention of the prisoner’s intent with regard to his unlawful removal from official detention. 18 Pa.C.S. § 5121(a). Section 5121(a) clearly states that a person has committed the offense of escape if he “unlawfully removes himself from official detention.” 18 Pa.C.S. § 5121(a). As there is no doubt that work release is a form of official detention, see Brown, supra, it would seem obvious on its face, that a deliberate breach of the work release agreement which results in unapproved rides to the home of an unknown person, and the consumption of an alcoholic beverage, as well as two late returns to prison, constitutes an unlawful removal from official detention. I believe that Edwards’ intent in pursuing this behavior is irrelevant to the application of the statute.

Furthermore, both Commonwealth v. Hall and the opinion propounded by the majority today make no attempt to define exactly what constitutes a “substantial deviation” from a prescribed travel route sufficient to constitute an intent to remove oneself from official detention. In Hall and this case, the defendants deliberately and flagrantly breached their work release agreements by deviating from their prescribed travel routes and engaging in other prohibited activity. Consequently, if intent were relevant, it is beyond me what actions the majority would require in order to find that the “substantial” deviation threshold had been met. The practical consequences of such an open-ended interpretation of section 5121 could be devastating to the penal and judicial systems of this Commonwealth as we “will provide a poor precedent by inviting prisoners participating in a work release program to abuse this privilege through conduct such as that of appellant, herein.” Commonwealth v. Hall, 402 Pa.Super. at 26, 585 A.2d at 1119 (Olszewski, J., concurring). See also Commonwealth v. Long, 395 Pa.Super. 495, 577 A.2d 899 (1990) (in attempting to ascertain the meaning of a statute, the court is required to consider the intent of the legislature and is permitted to examine the practical consequences of a particular interpretation and is to presume that the legislature did not intend a result that is absurd or unreasonable).

Based upon the foregoing, and viewing the evidence and all the reasonable inferences taken therefrom in a light most favorable to the Commonwealth as verdict winner, I conclude that the evidence is more than sufficient to support the jury’s finding that Edwards was guilty of escape. McIlvaine, supra; Revtai, supra; Lisboy, supra; Long, supra. I would, therefore, affirm the judgment of sentence.

      . Although Appellant phrased this issue as a challenge to the weight of the evidence in his brief, a reading of the argument presented clearly identifies this as a challenge to the sufficiency of the evidence.