author: CAVANAUGH, Judge:

text:
    461 A.2d 1309
    Angela FIDELIBUS, Appellant v. STATE AUTOMOBILE INSURANCE ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1983.
    Filed June 24, 1983.
    James A. Hamilton, III, Philadelphia, for appellant.
    James C. Haggerty, Philadelphia, for appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   CAVANAUGH, Judge:

In this case, the appellant, Angela Fidelibus, was injured in a motor vehicle accident on January 28, 1976. Her no fault automobile insurance carrier was State Automobile Insurance Association, the appellee herein. The appellant claimed basic loss benefits from the appellee and payments were made by the appellee until March 3, 1978, when the last payment was made. Subsequently, the appellant made a further claim against the appellee, which claim was not paid. On August 1, 1980, the appellant filed a complaint in assumpsit against the appellee. The court below granted the appellee’s motion for summary judgment and the appellant has appealed to this court from the order granting the motion.

Summary judgment is to be granted only in the clearest of cases, where the right is clear and free from doubt. Thompson Case Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). Under Pa.R.C.P. 1035(b) summary judgment may be granted only if there is “no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” In the instant case there is no dispute as to material facts, and our inquiry is limited to the legal question of interpreting the statute of limitations as set forth in the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. The court below granted summary judgment on the basis of the following statute of limitations set forth in the no-fault act at 40 P.S. § 1009.106(c)(1) which states:

(c) Time limitations on actions to recover benefits.—
(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.

There is no doubt that the appellant claimed additional no-fault benefits more than two years after the last payment of such benefits. The court below properly determined that the instant claim was barred by the no-fault statute of limitations. Platts v. Government Employees Insurance Company. 301 Pa.Super. 379, 447 A.2d 1017, 1018 (1982) strictly applied the statute of limitations that we are dealing with in this case and the court stated at 301 Pa.Super. 382, 447 A.2d 1018:

The purpose of any statute of limitations is to expedite litigation and discourage delay and the presentation of stale claims. Insurance Company of North America v. Carnahan, 446 Pa. 48, 284 A.2d 728, 729 (1971). One who asserts a cause of action against another has a duty to use all reasonable diligence necessary to inform himself of facts and circumstances upon which the right of recovery is based, and to institute the suit within the statutory period. Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267 (1963).

Salvado v. Prudential Property and Casualty Insurance Company, 287 Pa.Super. 304, 430 A.2d 297 (1981) also dealt with the statute of limitations provision found in the instant case. No-fault benefits were paid and the last payment was made on November 18, 1976. On April 27, 1979, a claim was made for additional benefits which the carrier refused to pay. An action in assumpsit was commenced and the court below granted summary judgment. In that case it was held that the statute of limitations was tolled as to one of the claimants- as she was a minor and therefore under a “legal disability” as defined in § 106(c)(5) of the Act. However, as to the other claimants who were not under a legal disability the statute of limitations was held to be a bar. The court stated at 287 Pa.Super. 309, 430 A.2d 300:

However, we reject appellants’ argument that the payment of additional benefits to the minor claimant will establish a new two year period within which adult claimants can also seek additional benefits. These claimants were under no disability, and there is no valid reason for tolling the period of limitations to permit their claims for additional benefits. The two year period within which to commence one or more actions therefor began to run on November 18, 1976, when the last payment of benefits was made. After the expiration of that period, claims for additional benefits by persons under no legal disability were barred.

The principal thrust of the appellant’s argument is that the statute of limitations set forth in the statute is not mandatory and further that it favors the insurance company over the victim, whereas the act is intended to benefit the victim. We, of course, may not disregard the clear language of the statute in order to arrive at a conclusion that may be in keeping with the spirit of the act. See Platts v. Government Employees Insurance Company, supra.

Finally, the Supreme Court has recently interpreted the statute of limitations found in § 106(c)(1) of the No-Fault Act in Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, 500 Pa. 167, 455 A.2d 101 (1982), reargument denied on February 16, 1983. In that case Mr. Sachritz was injured in an automobile accident on September 5, 1975 and died on August 16, 1976. The administra-trix received payment under no-fault on February 28, 1977. A further claim was filed more than two years after February 28, 1977, and denied. On July 23, 1979, the administra-trix sued for additional benefits. Summary judgment was granted by the court below in favor of the insurance carrier as the claim was barred by the statute of limitations. The Superior Court affirmed in Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, 293 Pa.Super. 483, 439 A.2d 678 (1981). An appeal was taken to the Supreme Court which affirmed and stated at 500 Pa. 167, 168, 455 A.2d 101, 102 (1982):

In this case the Superior Court held appellant’s claim for “post-mortem” work loss benefits was barred by the two year statute of limitations in Section 106(c)(1) of the No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176 §§ 101-701, 40 P.S. §§ 1009.101-1009.701 (Supp.1982). We granted review to consider the applicability of the limitations provisions of Sections 106(c)(1) and 106(c)(2) of the Act to the various types of no-fault benefits the legislature has provided in partial replacement of traditional tort damages for personal injury arising out of the operation of automobiles. Upon such review we have concluded that the legislature has provided comprehensive statutes of limitations in Sections 106(c)(1) and 106(c)(2), covering all no-fault benefits by drafting these sections on analogy to the statutes of limitations on traditional tort actions for personal injuries under our law, including survival actions and actions for wrongful death. Since appellant’s claim for “post-mor-tem” work loss benefits is barred by Section 106(c)(1) of the Act, we affirm the Superior Court.
The court further stated at 500 Pa. 176-77, 455 A.2d 106:
Returning now to the provisions of Section 106(c) of the No-fault Insurance Act, we find that the second sentence in Section 106(c)(1): “If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits” has provided appellant in this case with an extension of time from the old period of two years after the injury was done to a period “not later than two years after the last payment of [no-fault] benefits,” i.e. till February 29, 1979 instead of August 16, 1978.

There is no doubt that the statute of limitations set forth in § 106(c)(1) is mandatory and is a bar to the appellant’s action in this case. Accordingly, summary judgment was properly entered by the court below.

Order affirmed.


source: Caselaw Access Project

author: BROSKY, Judge: WIEAND, Judge,

license: Public Domain

text:
    461 A.2d 1312
    NILON BROTHERS ENTERPRISES v. Joseph A. LUCENTE and Mary Perrota, individually and t/a Friendly Caterers, Appellants. NILON BROTHERS ENTERPRISES, Appellant, v. Joseph A. LUCENTE and Mary Perrota, individually and t/a Friendly Caterers.
    Superior Court of Pennsylvania.
    Argued May 26, 1982.
    Filed June 24, 1983.
    Petition for Allowance of Appeal Denied Oct. 5, 1983.

      Michael F. Kraemer, Philadelphia, for Lucente, appellants (at No. 1972) and appellees (at No. 2148).
    Edward R. Paul, Media, for Nilón Bros., appellant (at No. 2148) and appellee (at No. 1972).
    Before BROSKY, WIEAND and BECK, JJ.
   BROSKY, Judge:

We have before us an appeal and cross-appeal from the Chancellor’s order denying Nilón Brothers exclusive rights to cater to Superboxes at Veterans’ Stadium in Philadelphia and also prohibiting Friendly Caterers from engaging in such catering. The order forbidding Friendly’s catering was based upon an enforcement of the Philadelphia Home Rule Charter requiring bidding for concession rights. In his cross-appeal, Nilón argues that, through his concession agreement with the City of Philadelphia, he was granted the exclusive right to cater to the Superboxes.

Facts

In 1966, the City of Philadelphia leased Veterans’ Stadium to the Philadelphia National League Club (Phillies). The City reserved to itself concession rights. In 1970 following bidding, the City granted those concession rights to appellee. Superboxes were then added to the Stadium. The lease between the City and the Phillies for the Super-boxes did not mention catering rights, nor was any bidding conducted by the City for catering rights to the Superboxes.

With the permission of the Phillies, Friendly began catering operations in 1971, when the Superboxes were first used, and has continued them to the present time. Nilon admits that he was aware of Friendly’s catering activities since late 1971. Friendly has spent money in developing its business at the Stadium, including equipping a kitchen at the Stadium in an area provided by the Phillies. In 1975, Nilon instituted the present suit. After its request for a preliminary injunction was denied, and on appeal affirmed, Nilon did not further pursue this case for another year and three quarters. As noted above, the Chancellor found that Nilon was not granted exclusive rights to Superbox catering under its concession with the City. Also, the Chancellor enjoined Friendly’s catering because the city did not grant that concession following bidding, as its Home Rule Charter requires.

Laches

Friendly raised the affirmative defense of laches as New Matter and later in the proceedings as required for its preservation for appellate review.

Laches arises when a defendant’s position or rights are so prejudiced by length of time and inexcusable delay, plus attendant facts and circumstances, that it would be an injustice to permit presently the assertion of a claim against him.

Grote’s Estate, 390 Pa. 261 at 269-70, 135 A.2d 383 at 387 (1957). Quoted in Silver v. Korr, 392 Pa. 26 at 30, 139 A.2d 552 at 555 (1958), and Thompson v. Curwensville Water Co., 400 Pa. 380 at 385, 162 A.2d 198 at 201 (1960). “Lach-es, unlike the statute of limitations, does not operate solely by the passage of time.” Lehner v. Montgomery, 180 Pa.Super. 493 at 501, 119 A.2d 626 at 630 (1956).

The application of the equitable doctrine of laches does not depend upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to institute his action to another’s prejudice.

Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128 at 133, 221 A.2d at 123 at 126 (1966). The rationale is that “acquiescence is presumed from delay.” Leuschen v. Cook, 145 Pa.Super. 568 at 576, 21 A.2d 496 at 499 (1941).

In terms of the time element, a lack of due diligence in prosecuting one’s claim—as well as a lack of due diligence in instituting it—can activate laches. Fidelity & Casualty Co. of New York v. Kizis, 363 Pa. 575 at 578, 70 A.2d 227 at 229 (1950).

Lastly, even though Nilon’s argument on the Home Rule Charter is on behalf of the interests of the municipality of Philadelphia, this will not prevent the application of laches. Laches can be imputed to a municipality itself. In re Heidorn’s Appeal, 412 Pa. 570 at 573, 195 A.2d 349 at 351 (1963). It follows that when a taxpayer is grounding his suit in the interests of the municipality, that laches can also be applied.

Given the above quoted law regarding laches, we are satisfied that it is just to apply the doctrine here. Nilón delayed approximately three and a half years in instituting its suit and delayed a further year and a half in prosecuting its suit following the rejection on appeal of its request for a preliminary injunction. Nilón offers no excuse or explanation but merely argues that Friendly benefitted from his catering. We reject this argument. Obviously, any defendant benefits from the activity sought to be enjoined or he wouldn’t contest the suit. The requisite prejudice here is not to be defined in these terms.

Rather, the prejudice resulting from the delay will be the greater adverse consequences of the grant of the sought for injunction. In the context of Nilon’s presumed acquiescence, Friendly has expanded his business, invested capital in equipment and concentrated the bulk of his activities in the Stadium catering. The adverse consequences of the injunction would have been immeasurably less serious had Nilón asserted its claim with reasonable promptness. Lach-es is a bar to Nilon’s action here.

The order enjoining Friendly from catering to the Super-boxes is, therefore, reversed; and, consequently, the refusal to grant Nilón exclusive catering rights is affirmed.

WIEAND, J., files dissenting opinion.

WIEAND, Judge,

dissenting:

The lease agreement for Veterans Stadium between the City of Philadelphia, lessor, and the Philadelphia National League Club, Inc., lessee, reserved to the lessor “the exclusive right to offer for sale and sell ... [a]ll foods and beverages designed for human consumption____” Pursuant thereto, the City of Philadelphia entered into an agreement granting to Nilón Brothers Enterprises, the appellee herein, “the exclusive privilege of operating the Stadium Club and Restaurant and General Concessions at [Veterans Stadium]____” This included specifically “food, drink, souvenirs, etc.” The agreement required that appellee, in exchange for such exclusive privilege, pay a designated percentage of gross receipts to the City of Philadelphia.

When superboxes were subsequently added to the stadium, Joseph A. Lucente and Mary Perrota, trading as Friendly Caterers, provided food catering services to the occupants. They did so at the instance of the owners of the boxes and with the consent of the Phillies and Eagles, who were tenants of the stadium, but without the consent of the City of Philadelphia and without complying with the bidding procedure required by the Philadelphia Home Rule Charter.

On the basis of these facts, the trial court entered an order enjoining Friendly Caterers from conducting a “food service business within the confines of Veterans Stadium, including the Super Boxes thereof.” Friendly Caterers appealed.

A majority of this Court makes an independent determination—the trial court did not so find—that appellee was guilty of laches and reverses the injunction entered by the trial court. I am unable to agree with this disposition; and, therefore, must respectfully, but vigorously, dissent.

The essential elements of laches are inexcusable delay in instituting suit and prejudice resulting to defendant from such delay. It is an equitable defense; its existence depends on the particular circumstances of each case. Many decisions teach that laches should not be declared by an appellate court unless the existence thereof is clear on the face of the record. Laches is an issue of fact, primarily addressed to the sound discretion of the trial court. The exercise of the trial court’s discretion regarding the defense of laches will not be disturbed in the absence of an abuse thereof. In Re Estate of Marushak, 488 Pa. 607, 610, 413 A.2d 649, 651 (1980); Leedom v. Thomas, 473 Pa. 193, 200-201, 373 A.2d 1329, 1332 (1977); Siegel v. Engstrom, 427 Pa. 381, 386, 235 A.2d 365, 368 (1967); Thomson v. Mid-State Theatres, Inc., 403 Pa. 111, 113, 168 A.2d 737, 738 (1961); Manson v. First National Bank in Indiana, 366 Pa. 211, 215-216, 77 A.2d 399, 401 (1951); Margolis v. Blecher, 364 Pa. 234, 236, 72 A.2d 127, 128 (1950); Hansel v. Hansel, 300 Pa.Super. 548, 556-559, 446 A.2d 1294, 1298-1300 (1982); Anaconda Co. v. Metric Tool & Die Co., 485 F.Supp. 410, 427 (E.D.Pa.1980).

The trial court in the case sub judice did not find that Nilón had been guilty of laches. In ruling otherwise, the majority has made an independent determination and has substituted its discretion in a matter peculiarly within the purview of the trial court. My review of the facts and circumstances presented to the trial court does not disclose an abuse of that court’s discretion. Indeed, even the majority seems hard put to discern prejudice where, as here, appellants have continued to serve food in the stadium throughout the purported delay.

I would affirm the order of the trial court.

      . In relevant part, the concession agreement provides:
      (c) It will be the obligation of the Concessionaire to offer for sale all foods and beverages designed for human consumption whether served at the counters or vended at stands or dispensed by itinerant venders about the premises or dispensed from vending machines...
      It will be noted that no reference is made to Superboxes.

      . The Chancellor's order enjoining appellant’s catering was stayed pending this appeal.
      At least three other firms, including appellee, have also catered to Superboxes.

      . For this issue, Nilon was asserting the municipality’s interests in its position as taxpayer.

      . The Chancellor’s failure to address this defense in his findings cannot bar our acting upon this preserved issue.

      . This result does not, of course, interfere with Nilon's catering to Superboxes, along with others.


author: ROWLEY, Judge:

text:
    461 A.2d 1315
    COMMONWEALTH of Pennsylvania v. William RICHARDSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 20, 1983.
    Filed June 24, 1983.
    Petition for Allowance of Appeal Granted Sept. 28, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   ROWLEY, Judge:

Appellant was convicted, after a jury trial, of rape and involuntary deviate sexual intercourse. Post-trial motions were filed and denied, and appellant was sentenced to a total term of four to ten years imprisonment. This appeal followed.

Appellant is black. The victim is white. The jury consisted of eleven white persons and one black man. The sole issue raised on appeal is whether the court erred in refusing to ask, during voir dire, several questions posed by appellant concerning racial prejudice.

Appellant posed the following five questions:

1. Are there any people on the jury who are prejudiced in any way against black people?
2. Mr. Richardson is a black man who is charged with raping a white woman. Because of the races of the two parties involved in this case, do you think you would have any difficulty being fair to either side?
3. Do you believe that black people are generally more dishonest than white people?
4. Do you believe black men like to rape white women?
5. If the woman were to testify that the incident happened one way and Mr. Richardson would testify that the incident happened in an entirely different way, would you tend to believe the testimony of the complainant merely because she was white?

The court agreed only to ask the second question, which it rephrased as follows:

THE COURT: I have just been advised that the victim in this case was a white person. You see that the defendant is black. Would these racial differences present such a problem to you that it could interfere with your honest appraisal of the case and interfere with your ability to be completely fair to both the Commonwealth and the Defendant?

The record indicates that there was no response to that question. This was the only question designed to explore the issue of racial prejudice that was permitted by the Court during voir dire.

The scope of voir dire examination rests within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Commonwealth v. Fulton, 271 Pa.Super. 430, 413 A.2d 742 (1979). We have concluded, however, that the court’s refusal to ask three of appellant’s remaining four questions and limiting the voir dire on the issue of racial prejudice to just one question constituted an abuse of discretion in this case. Therefore, appellant will be granted a new trial.

The Commonwealth is correct in stating that detailed voir dire on racial prejudice is not required merely because the defendant is black and the victim is white. Commonwealth v. Boone, 286 Pa.Super. 384, 428 A.2d 1382 (1981). Each case must be considered in light of the factual circumstances of the particular criminal episode. Commonwealth v. Christian, 480 Pa. 131, 389 A.2d 545 (1978). Under the particular circumstances of this case, the one general question asked by the court was not adequate to reveal prejudices which might bear on the case. As the Court pointed out in Christian, prejudices are often deep-rooted and unrecognized. Therefore, specific questions may be necessary to probe the issue. Id,., 480 Pa. at 138 n. 9, 389 A.2d at 548 n. 9.

The nature of the crime made this case particularly race-sensitive. See Commonwealth v. Holland, 298 Pa.Super. 289, 293, 444 A.2d 1179, 1181 (1982) (Van der Voort, J., dissenting). Prejudice as to differing sexual drives between the races could definitely affect a juror’s ability to be fair. This apparently was what appellant was attempting to reveal by his fourth question. This type of question was considered proper in Christian. It is true that in Christian, the prosecutor intended to introduce evidence of prior advances made by the defendant towards a white woman, in order to establish defendant’s sexual proclivity for white women. No such evidence was to be introduced here. However, inquiry into this area was still relevant in this case since the defense was consent. Because it is specifically related to the facts of the case, inquiry into this area should have been permitted. Even if the question as posed by appellant might be improperly constructed, the court had a duty to fashion a permissible inquiry into the subject. Commonwealth v. Christian, 480 Pa. at 140, 389 A.2d at 549.

The rape occurred in the victim’s apartment, which was located across the hall from the apartment of appellant’s brother. Evidence was introduced to corroborate the testimony of both the victim and appellant. Therefore, a determination of the credibility of the appellant and the victim was crucial. Appellant’s third and fifth questions specifically related to the potential jurors’ ability to make a fair determination of credibility. An argument could be made that the fifth question was too suggestive of the ultimate facts to be developed at trial. However, as we have already stated, the court may rephrase the questions. Appellant clearly is entitled to specifically inquire into the area of racial prejudice affecting a fair determination of credibility.

The first question posed by appellant was very general and not related in any way to the facts of this case. A potential juror might have a specific prejudice concerning black people which would not affect his or her ability to be fair and objective in this case. Therefore, we cannot say that the trial court abused its discretion in refusing to ask appellant’s first question.

However, the remaining three questions posed by appellant and not allowed by the court were proper and failure to ask them, under the facts of this case, constituted reversa-ble error.

Judgment of Sentence reversed. Case remanded for a new trial.

Jurisdiction relinquished.


author: CIRILLO, Judge:

text:
    461 A.2d 1318
    In re ESTATE OF Walter VAUGHN, Deceased. Appeal of Jack VAUGHN.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1983.
    Filed June 24, 1983.

      R. Heffner, Huntingdon, for appellant.
    H. Fry, Mifflintown, for appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   CIRILLO, Judge:

Walter Vaughn, a resident of Juniata County, died intestate on February 22, 1967 survived by his wife, Sadie Vaughn, and nine adult sons and daughters. On June 19, 1967, Letters of Administration were issued by the Register of Wills of Juniata County to Homer Vaughn, one of the decedent’s sons. On September 14, 1968, the administrator filed his First and Intended Final Account of the Estate. On October 14, 1968, Sadie Vaughn filed exceptions to the administrator’s account for failure to provide a family exemption. However, Sadie Vaughn died before any action was taken on her exceptions. The administrator’s account lay dormant for a period of approximately 12 years until May 19, 1980 when appellant Jack Vaughn, another of the decedent’s sons, filed exceptions and a petition for the appointment of an auditor. Appellant’s exceptions included inter alia, the administrator’s failure to include in his account of the estate certain assets of the decedent in his possession, specifically, a 1956 Ford tractor and a Springfield rifle, and the administrator’s liability for failure to invest the estate funds during the period his account of the estate was open.

The Orphans’ Court of Juniata County appointed an auditor and a hearing was held on July 11, 1980. At that hearing, both the administrator and the appellant testified. The administrator testified that he did not include the tractor and rifle in his account of the estate because his father intended that he have those items after his father’s death. The parties stipulated that no income had been earned by the estate since the filing of the administrator’s account. The administrator had kept the estate funds in a non-interest bearing checking account. The parties further stipulated that the balance in that checking account had been $4,706.86 since the date of the filing of the administrator’s account.

On November 13, 1980, the auditor filed his report. The auditor found that no valid inter vivos gift of the tractor and rifle had been made by the decedent to the administrator, and the auditor included these assets in the estate. The auditor assessed the value of the tractor and rifle at $1,500.00 and $150.00 respectively. With these assets included, the total estate available for distribution on the date of the filing of the administrator’s account was $6,389.70. The auditor also found that the administrator had breached his fiduciary duty to invest the estate funds and surcharged him 2% interest. This surcharge amounted to $1,492.56 and brought the total estate on the date of the auditor’s report to $7,882.26. The auditor assessed his fee at $1,608.00 and imposed the $2,164.68 total cost of the audit on the estate. Both the appellant and the administrator filed exceptions to the auditor’s report. After a hearing, the Orphans’ Court reduced the auditor’s compensation to $1,337.00. All other exceptions were denied, and this appeal followed.

On appeal, appellant raises several claims of error, all relating to the Orphans’ Court’s assessment and imposition of various fees, costs and surcharges. Preliminarily, we note that the imposition of costs in an Orphans’ Court proceeding is a matter left to the sound discretion of that court and will not be disturbed on appeal absent an abuse of discretion. Istocin’s Estate, 126 Pa.Super. 158, 190 A. 382 (1937). An abuse of discretion occurs when the court misapplies existing law, makes a manifestly unreasonable judgment, or rules with partiality, prejudice or ill will. M. London, Inc. v. Fedder Corp., 306 Pa.Super. 103, 452 A.2d 236 (1982). It is within this scope of review that we proceed to consider appellant’s claims of error.

Appellant first contends that the Orphans’ Court erred in refusing to order that his counsel fees be compensated from estate funds. While ordinarily the exceptant to the account of an administrator must pay his own counsel fees, in very exceptional cases the exceptant may be allowed counsel fees out of estate funds. In re Estate of Lux, 480 Pa. 256, 389 A.2d 1053 (1978). Where the estate is substantially benefitted by the efforts of an exceptant’s counsel, which have resulted in an administrator being required to include in his inventory of the estate valuable assets previously not included, it is within the discretion of the court to compensate the exceptant’s counsel fees out of estate funds. Id. In the instant case, the Orphans’ Court recognized that the estate had received benefits as a result of the efforts of appellant’s counsel but found these benefits to be overshadowed by the delay in the pursuit of appellant’s exceptions.

Notwithstanding this delay, we find that the Orphans’ Court abused its discretion in denying compensation for appellant’s counsel fees from the estate funds. There can be no doubt that the estate was substantially benefitted by the efforts of appellant’s counsel. 'As a result of these efforts, assets valued at $1,650.00 were brought into the estate, a bill in the amount of $32.84 paid by the administrator was disallowed, and a surcharge of $1,492.56 was imposed upon the administrator. The total increase in the estate resulting from counsel efforts was $3,175.40. Given this substantial increase in this modest estate, the delay is not dispositive under the circumstances of this case. The effect of the Orphans’ Court’s denial of compensation for appellant’s attorney’s fees out of estate funds is to permit the other heirs, who have never filed exceptions, to reap the benefits of the efforts of appellant’s counsel without having to share in the expense of producing those benefits. This would be a manifestly unreasonable and inequitable result. As our Supreme Court recognized in the early case of Commonwealth ex rel. Hensel v. Order of Solon, 193 Pa. 240, 242-43, 44 A. 327, 328 (1899),

[W]here the attorney of one of several parties, all equally interested, secures a fund which would otherwise have been embezzled or lost, and all share equally in the distribution, it is but equitable that all should share in the expense which produced the fund, although but one moved in the matter.

Under the circumstances of this case, appellant must be allowed reasonable counsel fees out of the estate funds.

Secondly, appellant claims that the surcharge imposed on the administrator of 2% interest for failure to invest the estate fund is inadequate. Appellant argues that the surcharge should be at least 5% to coincide with the prevailing interest rates paid by banks on savings accounts. It is well established that where the administration of an estate is delayed for an extended period of time, it is the duty of the personal representative to invest the estate funds, and where he breaches this duty of investment he may be charged with appropriate interest. In re Estate of Pitone, 489 Pa. 60, 413 A.2d 1012 (1980); Lare Estate, 436 Pa. 1, 257 A.2d 556 (1969). The relevant section of the Probate, Estates and Fiduciaries Code provides, “A personal representative who has committed a breach of duty with respect to estate assets shall, in the discretion of the Court, be liable for interest not exceeding the legal rate on such assets.” 20 Pa.C.S.A. § 3544. The maximum lawful interest rate in the Commonwealth is 6%. 41 P.S. § 201. Subject to this limitation, the determination of what rate of interest to surcharge an administrator is a matter left to the discretion of the Orphans’ Court. See In re Estate of Pitone, supra; Lare Estate, supra.

In the present case, the administrator permitted the estate funds to remain in a non-interest bearing checking account for approximately 12 years. Clearly this constituted a breach of his duty of investment. The auditor surcharged the administrator 2% interest and the Orphans’ Court affirmed. In affirming the auditor’s surcharge of 2% interest, the Orphans’ Court considered as mitigating factors the relatively small size of the estate, that the administrator himself was an heir, that there was no evidence of self-dealing involving the estate funds, and the appellant’s failure to file exceptions for 12 years. The 2% interest surcharge imposed on the administrator amounted to $1,492.56. Under all the circumstances of this case, the Orphans’ Court could properly limit the interest surcharge to 2%.

Appellant also contends that since the audit in this case was necessitated by the administrator’s failure to include a substantial portion of the assets of the estate in his account, he should bear the cost of the audit. While ordinarily the costs of an audit are deducted from the estate, an administrator may be charged with the costs of an audit made necessary by his fault. Lewis Estate, 349 Pa. 455, 37 A.2d 559 (1944); Kline’s Estate, 280 Pa. 41, 124 A. 280 (1924); Grollman’s Estate, 273 Pa. 565, 117 A. 351 (1922); Istocin’s Estate, supra. However, the disposition of the costs of an audit is within the discretion of the Orphans’ Court. Istocin’s Estate, supra. In the case at bar, the Orphans’ Court concluded that the administrator’s conduct in this case was not so improper as to require that the costs of the audit be imposed upon him. The court found that the administrator had simply breached his duty to invest the estate funds while waiting for proceedings on his account. The court found that there was no bad faith, gross negligence or misuse of estate funds. We note also that while the auditor and Orphans’ Court held that no valid inter vivos gift of the tractor and rifle had been made by the decedent to the administrator, there is no evidence of bad faith or concealment of these assets on the part of the administrator. On the contrary, there was evidence that the appellant borrowed the tractor from the administrator, used it and returned it to him. Under the circumstances of this case, we will not reverse the Orphans’ Court determinations that the costs of the audit should be borne by the estate.

Finally, appellant contends that since the total assets of the estate are less than $10,000, the auditor’s fee of $1,337.00 is excessive. The compensation of an auditor is a matter left largely to the sound discretion of the Orphans’ Court. Matthews Estate, 431 Pa. 616, 246 A.2d 412 (1968). The factors to be considered in measuring an auditor’s compensation include the nature and difficulty of the questions involved, the character and volume of the work done, and the time necessarily required to complete the work. Lewis Estate, supra; Wilbur’s Estate, 334 Pa. 45, 5 A.2d 325 (1939). The amount involved in the account also must be considered. Lewis Estate, supra. In the instant case, the auditor originally assessed his fee at $1,608.00, based on the rate of $40.00 per hour. The Orphans’ Court allowed compensation on an hourly basis but reduced the rate to $35.00 per hour to bring it in line with the hourly rate paid specially appointed public defenders in Juniata County. The court found that due to the lack of opportunity in the County to acquire experience in the auditing of accounts, the auditor’s inexperience was excusable and the amount of time spent by the auditor was not unreasonable. The court also found that the auditor’s work product provided ample verification of the time spent in its preparation. The Orphans’ Court reduced the auditor’s compensation to $1,337.00—compensation for 38.2 hours at $35.00 per hour. The Orphans’ Court of Juniata County was in a better position than we to form a correct judgment of the reasonableness of the auditor’s fee, and we will not disturb it on appeal.

Affirmed in part, reversed in part.

      . The administrator’s account showed total receipts of $5,347.22, minus total disbursements of $1,679.36, leaving a balance of $3,667.86. However, checks made payable to Henry Vaughn in the amounts of $900.00, $25.00 and $14.00 as reimbursement for decedent’s funeral, physician and ambulance expenses paid by Henry Vaughn were never cashed. Also, $100.00 reserved by the administrator in his account for a headstone was moot since at the time of the audit a headstone had already been erected.

      . This figure also includes $32.84, the amount of a hospital bill paid by the administrator but disallowed by the auditor as a result of the efforts of appellant’s counsel.

      . The Orphans’ Court discovered that this figure was the result of a miscalculation in the number of billable hours and thus overbilled by $80.00.


author: JOHNSON, Judge: SPAETH, Judge,

text:
    461 A.2d 1322
    Edward McCLELLAND and Margaret McClelland, his wife, both individuals v. Martin DEVINE, Sr. and Elizabeth Devine, his wife, and James Devine, all individuals, and Animal Repellent, Inc., a Corporation, v. Richard ALLEN and Shirley Allen, his wife. Appeal of Martin DEVINE, Sr. and Elizabeth Devine, his wife, and James Devine, all individuals, Appellants.
    Superior Court of Pennsylvania.
    Argued March 17, 1982.
    Filed June 24, 1983.

      Richard L. Rosenzweig, Pittsburgh, for appellants.
    Gary J. Gushard, Pittsburgh, for appellees.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

The order appealed from in this case denied appellants’ petition to join as involuntary plaintiff the United States Postal Service. Appellants are the original individual defendants named in a complaint in trespass brought by plaintiffs/appellees. The complaint alleges that plaintiff Edward McClelland, a letter carrier for the U.S. Postal Service, was delivering mail at a certain address when he was attacked and bitten by the defendant Devines’ dog. The Devines filed a complaint against additional defendants the Allens, alleging that it was the Allens’ dog, not the Devines’, that bit the plaintiff.

The defendant Devines also filed a Petition to Join the United States Postal Service as an Involuntary Plaintiff, alleging that the Postal Service had paid compensation to its employee for the injuries, that the Postal Service was claiming subrogation against the defendants, and that the Postal Service was negligent. The Devines cited, as authority for their petition, Sheldon v. West Bend Equipment Corp., 502 F.Supp. 256 (W.D.Pa.1980). The court denied the petition on the grounds that the joinder of the Postal Service was barred by the doctrine of sovereign immunity and by section 8116(c) of the Federal Employee’s Compensation Act. It is this denial from which the Devines appeal.

The trial court ruled that the defendants were barred from pursuing a tort action against the United States Postal Service because of federal immunity. Appellees argue that the United States, through its instrumentality, the United States Postal Service, is immune from suits of this type. Appellants argue that the United States Postal Service is not immune from suit. It appears that appellees and appellants are blending two distinct parties—the United States, and the United States Postal Service. While appellants are correct that the United States Postal Service by statute has the capacity “to sue and be sued”, 39 U.S.C. § 401(1), their reliance on garnishment cases, Beneficial Finance Co. of New York Inc., v. Dallas, 571 F.2d 125 (2d Cir.1978), and Goodman’s Furniture Co. v. United States Postal Service, 561 F.2d 462 (3d Cir.1977), where the courts held that the Postal Service is not immune to state garnishment procedure, is misplaced. The Postal Service Act, at 39 U.S.C. § 409(c), has made the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2679(a), fully applicable to tort claims arising out of the activities of the Postal Service. The Tort Claims Act provides that suits based on torts allegedly committed by a federal agency must name the United States, not the agency, as the defendant. See Meyers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252 (2d Cir.1975); Stewart v. United States, 503 F.Supp. 59, 61 (N.D.Ill.1980), aff'd 655 F.2d 741 (7th Cir.1981); Grasso v. United States Postal Service, 438 F.Supp. 1231 (Conn.1977). See also Insurance Co. of North America v. United States Postal Service, 675 F.2d 756 (5th Cir.1982). Thus, in a tort action against the Postal Service, the United States would be the proper party defendant.

As the Postal Service is not a proper party to this action, it may not be joined.

The trial court was correct. The order of Judge Del Sole for the Court of Common Pleas is affirmed.

SPAETH, J., files a concurring statement.

HOFFMAN, J., concurs in the result.

SPAETH, Judge,

concurring:

I join Judge JOHNSON’S opinion, on the understanding, however, that it does not imply that the United States would be a proper party. While I agree that the Postal Service is not a proper party, I’m not sure, and see no need to decide, whether the United States would be.

      . In the Sheldon case, the plaintiff employee had fallen from a man-lift while at work, and sued the manufacturer of the man-lift. The manufacturer sought to join the employer as an involuntary plaintiff because of the employer’s right to subrogation, and asserted Rule 19 of the Federal Rules of Civil Procedure as the appropriate rule. The court permitted the joinder, preferring to follow another district court case, Lipari v. Niagara Machine & Tool Works, 87 F.R.D. 730 (W.D.Pa.1980), aff’d per curiam 661 F.2d 914 (3d Cir.1981), which allowed the employer’s joinder as involuntary plaintiff under Fed.R. Civ.P. 17(a), rather than decisions of the Pennsylvania supreme and superior courts which hold that the employer may not be joined as an additional defendant, e.g., Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980). But see, with respect to the law of Pennsylvania on this issue, Kelly v. Carborundum Co., 307 Pa.Super. 361, 453 A.2d 624 (1982), and Reliance Insurance Co. v. Richmond Machine Co., 309 Pa.Super. 430, 455 A.2d 686 (1983).

      . See 5 U.S.C. § 8116 (1976), which provides in relevant part:
      § 8116. Limitations on right to receive compensation
      (c) The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen’s compensation statute or under a Federal tort liability statute. However, this subsection does not apply to a master or a member of a crew of a vessel.
      The Supreme Court of the United States has recently held that section 8116(c) does not bar a manufacturer’s third party indemnity action against the United States. Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 103 S.Ct. 1033, 74 L.Ed.2d 911 (1983).

      . 39 U.S.C. § 409(c) provides:
      § 409. Suits by and against the Postal Service
      (c) The provisions of chapter 171 and all other provisions of title 28 relating to tort claims shall apply to tort claims arising out of activities of the Postal Service.

      . 28 U.S.C. § 1346(b) provides:
      § 1346. United States as defendant
      (b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
      28 U.S.C. § 2679(a) provides:
      § 2679. Exclusiveness of remedy
      (a) The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are • cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.


author: LIPEZ, Judge:

text:
    461 A.2d 1324
    SILCO VENDING COMPANY, Appellant v. Charles QUINN and Mary Quinn, individually and trading as Quinn’s Tavern.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1982.
    Filed June 24, 1983.

      Howard Wallner, Philadelphia, for appellant.
    William L. Zeitz, Philadelphia, for appellees.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   LIPEZ, Judge:

Silco Vending Company (Silco), plaintiff in this action in assumpsit, appeals from the lower court’s order finding against Silco and in favor of defendants Charles and Mary Quinn, against whom suit had been brought as individuals and as the partnership trading as Quinn’s Tavern. Silco argues that the lower court’s decision, premised upon a finding that Mary Quinn had not been a partner with her deceased husband in the operation of the business, must be reversed because defendants admitted in pleadings and during trial that Mrs. Quinn was a partner in the operation of Quinn’s Tavern. We agree and vacate the order of the lower court.

The contract sued on was headed, “Exclusive Contract— Consideration For Term”, and was executed on July 18, 1974. It recites that the agreement was made between Silco and Charles and Mary Quinn doing business under the name of Quinn’s Tavern, and provides that in consideration of $500.00 cash and a commission on cigarettes sold at the location the Quinns would give Silco the exclusive right to sell cigarettes at Quinn’s Tavern for a five-year period. It also provides that if the business were to be sold before expiration of the contract’s term, the Quinns would notify Silco of the impending sale at least two weeks before settlement and would include in the agreement of sale a provision requiring the purchaser to assume the obligations of the contract with Silco. The final clauses of the contract set out a formula for determining the amount of liquidated damages to be awarded to Silco upon breach of the contract.

In July, 1975, after the death of Charles Quinn, Mary Quinn sold the business without notifying Silco or requiring the purchaser to assume the contract. Silco then brought this action, alleging that the sale constituted a breach of the agreement and seeking damages calculated according to the formula contained in the contract. In her answer, Mary Quinn denied any liability under the contract, alleging that she had not signed it, and raised several affirmative defenses to its enforcement. Her answer also stated, “It is averred that Mary Quinn was formerly a partner with her late husband, Charles Quinn, in a business known as Quinn’s Tavern. Said partnership was dissolved by the death of Charles Quinn.” Answer to Complaint in Assumpsit, para. . Statements that Mrs. Quinn had been a partner in the tavern were also made in response to plaintiff’s interrogatories and by defendant’s counsel during the course of the trial.

The lower court found that Mary Quinn had not signed the contract, and that finding is not challenged in this appeal. It also found, however, that Mary Quinn had never been her husband’s partner in operating the tavern, and therefore rejected Silco’s contention that Mrs. Quinn might be bound by the contract under the provisions of the Uniform Partnership Act, 59 P.S. % let seq., specifically 59 P.S. § 31. Silco’s sole contention in this appeal is that, in light of Mrs. Quinn’s admissions of partnership, this finding was erroneous. We agree.

“Admissions ... contained in pleadings, stipulations, and the like, are usually termed ‘judicial admissions’ and as such cannot later be contradicted by the party who made them.” Tops Apparel Manufacturing Co. v. Rothman, 430 Pa. 583, 587, 244 A.2d 436, 438 (1968). Although conclusions of law contained in pleadings are not treated as admissions of facts in issue, Srednick v. Sylak, 343 Pa. 486, 492-93, 23 A.2d 333, 337 (1942), it is well established that in Pennsylvania the existence of a partnership and the identities of its members are considered questions of fact, and admissions of such facts are binding upon the party making them. See, e.g., Rowland v. Canuso, 329 Pa. 72, 196 A. 823 (1938); Gay v. Waltman, 89 Pa. 453 (1879). It is thus clear that, having admitted to partnership in pleadings, defendant could not have denied that she was a partner and demanded proof of partnership at trial.

Defendant argues, however, that while she might have been bound by her admission of partnership, those admissions were not binding on the court. She cites L.P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co., 253 F. 914 (7th Cir.1918) as authority for her contention that the lower court was within its discretion in avoiding the effect of the admissions in this case. The language of the Larson opinion, however, indicates that this was not a proper case for the exercise of such discretion:

Undoubtedly a litigant has no cause for complaint if the court accepts his solemn and sworn admissions in pleadings and testimony as true. But we reject the contention that his adversary has the right to compel the court to do so. Otherwise a court could be forced by parties to decide moot, feigned, and collusive cases ____ But the present case ... is not moot, feigned or collusive ....
... In a real and legitimate controversy, a party should be left within the knot of his averments in pleadings and admissions in testimony, unless the court can find an absolute demonstration from other evidence in the case or from facts within judicial notice, like the laws of physics, etc., that under no circumstances could the averments and admissions be true.

Id. at 917-18 [emphasis added]. Here, the facts that Mrs. Quinn was co-owner of the tavern as a tenant by the entireties and was co-holder of the license issued by the Pennsylvania Liquor Control Board for operation of the taproom provide a basis for at least the possibility that her averment of partnership in the business was true. To ignore her admissions under these circumstances was thus an abuse of discretion.

Accordingly, we hold that Mary Quinn should be bound by her admission of partnership and that the lower court should consider the merits of both Silco’s contention that she is liable for breach of a partnership contract and defendant’s affirmative defenses to enforcement of the contract.

Order vacated; case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Although the contract bore a signature appearing to be that of Mary Quinn, as well as that of Charles Quinn and Silco’s president Harvey Siller, Mrs. Quinn denied that the signature on the document was hers.

      . Act of March 26, 1915, P.L. 18, part III, § 9, repealed, Act of December 19, 1975, P.L. 524, No. 155, § 2 and replaced, Act of December 19, 1975, P.L. 524, No. 155, § 1 (59 Pa.C.S. § 321). The section reads, in pertinent part:
      Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member, binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.

      . Defendant also contends, relying on Nesbitt v. Turner, 155 Pa. 429, 26 A. 750 (1893), that an admission made through counsel’s inadvertence may be overlooked by the court. We need not address the merits of that claim or the continued vitality of Nesbitt, however, because it is clear on the record in this case that defendant’s averments of partnership, even if ill-advised, were intentionally made. Admissions of partnership were made repeatedly in pleadings, in her pre-trial brief, and at trial. Moreover, in answers to plaintiff’s interrogatories, she admitted not only to partnership status, but also to co-ownership of the business premises, active participation in business operations, and entitlement to 50% of the business profits.

      . Defendant argues that we should hold the liquidated damages clause void as a penalty and, since plaintiff proved no actual damages, affirm the order in defendant’s favor. The lower court, however, made no findings of fact as to losses suffered by Silco, and we are thus unable to assess the reasonableness of the damages clause on the facts of this case. We therefore remand resolution of this claim, as well as defendant’s other affirmative defenses, to the lower court.


author: PER CURIAM:

text:
    461 A.2d 1327
    Paul HOPKINS, v. Frank STEPLER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 15, 1983.
    Filed June 24, 1983.

      Fronefield Crawford, Jr., West Chester, for appellant.
    Michael D. Carr, West Chester, submitted a brief on behalf of appellee.
    Before CERCONE, President Judge and ROWLEY and CIRILLO, JJ.
   PER CURIAM:

One Paul Hopkins, appellee, filed a complaint in equity against Frank Stepler, his neighbor, who kept eight German Shepherd dogs on his property. The complaint set forth the appellant’s dogs as causing a nuisance to appellee because of continuous “barking, yelping, and howling,” which disturbed appellee and his family. Appellee prayed

(a) that the defendant be adjoined [sic] from making or causing or permitting to be made the noises on their premises complained of;
(b) that the defendant be compelled to move the kennels and runs to another location on his property which is not audible from plaintiff’s premises;
(c) that the defendant be compelled to pay the costs and legal expenses occurred [sic] by the plaintiffs in bringing this suit; and
(d) such other relief as the court deems proper in these circumstances.

After a full hearing on the complaint, and a visit to the neighborhood involved, the chancellor granted relief to ap-pellee by rendering a decree nisi:

... [I]t is hereby ordered and decreed that defendant Frank Stepler shall maintain no more than three (3) dogs on his property. During the day, two (2) of the three (3) dogs may run at large in and around defendant’s yard and the third dog must be kept in the pen and run furthermost from plaintiff’s home and situated south-westwardly from the defendant’s residence. Between the hours of 8:00 p.m. and 8:00 a.m. (prevailing time) all three dogs must be kept in defendant’s residence. Parties to pay their own costs.

Appellant Frank Stepler argues on appeal that the lower court erred in making certain findings of fact, in concluding that the dogs were an enjoinable nuisance, in finding the plaintiffs were persons of ordinary sensibilities, and in ordering the defendant to maintain no more than three dogs on his property.

Our scope of review in this case is well-settled. A chancellor’s findings of fact will not be disturbed on appeal where there is adequate evidence in the record to support those findings. Gilmore v. Northeast Dodge Co., Inc., 278 Pa.Superior Ct. 209, 420 A.2d 504 (1980). Even meager or uncorroborated evidence will support the chancellor’s findings if the evidence is of record and properly before the court. Eldridge v. Melcher, 226 Pa.Superior Ct. 381, 313 A.2d 750 (1973). Where the evidence is contradictory, the chancellor’s findings will be given greater weight, since he must necessarily pass on the credibility of witnesses.

We have examined the record and the opinion of the lower court and we find that except for the court’s inaccurate tally of how many neighbors testified on appellee’s behalf, and its finding that “Plaintiff repeatedly requested defendant to abate the noise”, that the court’s findings are substantiated by the record. Three witnesses in addition to appellee and his wife constituted appellee’s case against the appellant. And, the record reveals that appellee requested appellant to control his dogs only once, in 1978. However, we decline to find that these inaccuracies warrant the grant of a new trial. We are also inclined to agree with the lower court that the evidence portrayed the dogs as an enjoinable nuisance.

However, it is from the lower court’s remedy that we must depart. In all cases, the appropriateness of a particular form of relief is to be tested by balancing the seriousness of the injury against the cost of avoiding it and the importance of the conduct causing it. Dexter v. Bebenek, 458 Pa. 1, 327 A.2d 38, 39 (1974). We note that in no instance did appellee ever request that the chancellor order appellant to get rid of any of his dogs. Such a plea does not appear in the complaint, nor in testimony. On the contrary, appellee was desirous of having the noise of the barking dogs stopped and in having the dog runs moved further from appellee’s property. The court’s decree grants the requested relief by ordering that all dogs be kept in appellant’s residence between 8:00 p.m. and 8:00 a.m. In addition, only two dogs may run free in appellant’s yard. (Appellant’s property comprises 3.9 acres.) The two older dogs were described by appellant as not expected to live very long. Because the four younger and most noisy dogs are now two years older than at the time of the hearing, and because we feel that compelling appellant to get rid of three dogs is unduly harsh, we choose to modify the lower court’s order. We, therefore, eliminate the part of the decree which orders appellant to reduce the number of his dogs to three, and modify the second sentence to read “during the day, two (2) of the six (6) dogs may run at large in and around defendant’s yard and the other four (4) dogs must be kept in the pen and run furthermost from plaintiff’s home and situated southwestwardly from the defendant’s residence.” In all other respects, the decree shall stand.

Decree vacated and remanded for the entry by the lower court of a modified decree for plaintiff consistent with this opinion. Jurisdiction is relinquished.

      . At the time of trial, two dogs had died.

      . An appellate court may affirm, modify, vacate, set aside or reverse any order brought before it for review, and may remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances. 42 Pa.C.S.A. § 706.


author: McEWEN, Judge:

text:
    462 A.2d 243
    COMMONWEALTH of Pennsylvania v. Mark Steven PALM and Edward Eugene Zendt, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1981.
    Filed May 20, 1983.
    Reargument Denied Aug. 2, 1983.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Allen E. Hench, Newport, for appellants.
    R. Scott Cramer, Assistant District Attorney, Duncannon, for Commonwealth, appellee.

      Before BROSKY, McEWEN and BECK, JJ.
   McEWEN, Judge:

Appellants were charged with a violation of the Pennsylvania Game Law by the unlawful killing of a deer out of season, and convicted as charged before a District Justice. A summary appeal proceeding was taken and after a trial de novo appellants were found guilty. The court entered an order which dismissed the appeal and reimposed the sentence imposed by the District Justice.

Appellants present in their brief the following Statement of Questions:

I. Is probable cause necessary for a Game Commission Officer to stop and seize a vehicle in the course of investigating a suspected Game Law violation?
II. Do Game Law Enforcement Officers have probable cause to stop and seize a vehicle observed near an area later in time than the possible occurrence of a suspected violation?
III. Should Game Law Enforcement Officers give Miranda warnings before a custodial and accusatory interrogation regarding a suspected Game Law Violation?
IV. Is a search of a vehicle stopped to investigate a suspected Game Law violation proper where no probable cause for a stop existed and no free or unconstrained consent was given?

The quite careful opinion of distinguished President Judge Keith B. Quigley, provides a fine analysis of the fundamental issues presented and we share his views that game protectors must have reasonable suspicion to stop a vehicle and must have probable cause to search a vehicle, but we reverse for the reason that we conclude appellants were subjected to custodial interrogation by the game protectors and were, therefore, entitled to Miranda warnings.

The District Game Protector and his deputy supplied in their testimony a history of the occurrence. That testimony reveals that as the deputy, in full uniform, drove to investigate the sound of gunshots, a fast moving van with distinctive taillights passed him proceeding in the opposite direction, leaving tire tracks in the freshly fallen snow. The game protector followed the path of the vehicle to a location in a field where he found evidence that a deer had been killed out of season. The deputy summoned the District Game Protector who further examined the site and also concluded that a deer had been killed. As the game protectors proceeded toward the residence of one of the appellants, Mark Palm, by reason of their suspicion that the distinctive looking van belonged to Mr. Palm, the van passed them from the opposite direction. The game protectors immediately gave chase in their marked enforcement vehicle and brought the van to a halt.

Appellant Palm was the owner and driver of the vehicle and the other appellant, Edward Zendt, was in the front seat. The District Game Protector, with the aid of a flashlight, first observed the front interior of the van and saw what appeared to be blood on the hands of appellants. When the game protector inquired about the blood, appellant Palm responded that it was from an injured cow. The game protector secured the permission of appellant Palm to look in the rear of the van, where he saw “deer hair sticking up on the red carpet.” As a result, the protector told appellant Palm to turn off the motor while expressing to them his belief that “[appellants] were responsible for taking the deer and ... had some problems.” Appellants were further informed of certain penalties for the suspected game law violation and advised, if involved, that “it would be a lot better if [they] owned up to it.”

The District Game Protector proceeded to tell appellant Palm that he “would need some information” and to “come back to my vehicle with me.” In compliance with this order, appellant Palm seated himself in the front passenger seat of the enforcement vehicle, flanked to his left by the District Protector and to his rear by the deputy protector, while appellant Zendt remained alone by the van. The District Protector initially asked appellant Palm such questions from a routine identification slip as “age, date of birth, and so on” before repeating that he “was sure [appellants] were responsible for the killing of the deer and that [appellant Palm] had some big problems,” and again outlining certain penalties for violation of The Game Law. It was after further interrogation that appellant Palm admitted the unlawful killing of a deer. The game protector next instructed Palm to return to the van and to send appellant Zendt to them so that information could likewise be obtained from him. Zendt testified that he was informed by the protector that “[Palm] admitted shooting the deer” and that the deer had been crippled. Zendt thereafter confessed to involvement in the killing of the deer. Miranda warnings had not been supplied to either appellant.

Appellants contend that probable cause is required for the stopping or seizure of a vehicle where a game law violation is under investigation and that the trial court erred when it determined that probable cause existed for the game protectors to stop the vehicle in which appellants were traveling.

While the legality of the stop of the vehicle is justified by the specific facts of this case, it must be emphasized that any stop involves a balancing, on the one hand, of the interest of private citizens in being free from unreasonable searches and seizures with, on the other hand, the societal interests in providing for the enforcement of the law for the protection of the community. The eminent Justice Robert N.C. Nix, Jr., carefully discussed this delicate balance as he declared in Commonwealth v. Murray, 460 Pa. 53, 61, 331 A.2d 414, 415 (1975):

Because a motorist’s extreme mobility may otherwise allow him to avoid police confrontation, the State has an equally strong interest in these cases in stopping a moving vehicle to freeze momentarily a situation of suspected criminality. However, ... to justify the intrusion the police officer must be able to point to specific and articu-lable facts which taken together with rational inferences from those facts reasonably warranted the intrusion. Thus, it is also clear that an investigative stop of a moving vehicle to be valid must be based upon objective facts creating a reasonable suspicion that the detained motorist is presently involved in criminal activity, (citations omitted).

See also Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982).

The trial court concluded that the game protector “must have some basis before he invades legally protected interest areas of our citizens: probable cause to search; something less than that to stop.” We agree and here hold that a condition precedent to the exercise of such power by game protectors is the existence of reasonable suspicion to stop a vehicle and probable cause to search the vehicle.

The Pennsylvania Game Law, in pertinent part, confers upon lawfully qualified game protectors the following power:

To stop and inspect or search at any time, without warrant, any vehicle or conveyance, and its occupants or contents, any time or place within this Commonwealth: Provided, however, Such officer shall be in uniform and display his badge or other insignia of identification and shall state to the person in charge of said vehicle or conveyance the purpose of the inspection or search.

34 P.S. § 1311.214(h).

A determination of the legality of a stop and search of a vehicle by a lawfully qualified game protector begins with a consideration of the requirements of the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The United States Supreme Court declared in Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), in the context of a police stop:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry, [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] recognizes that it may be the essence of good police work to adopt an intermediate response ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

See also, Commonwealth v. LeSeuer, 252 Pa.Super. 498, 382 A.2d 127 (1977). In Terry v. Ohio, supra, it was established that a law enforcement officer, to justify a particular intrusion in the absence of probable cause, “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” Terry v. Ohio, supra at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. See also Adams v. Williams, supra; Commonwealth v. Murray, supra; Commonwealth v. Berry, 305 Pa.Super. 8, 451 A.2d 4 (1982); Commonwealth v. Merbah, 270 Pa.Super. 190, 411 A.2d 244 (1979). The Terry decision proceeds to describe the objective standard to be used in making that determination:

[WJould the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?

Terry v. Ohio, supra at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. We believe that this Terry rationale is applicable, as well, to other duly qualified law enforcement officials, including state game protectors. See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (Terry rationale applied in context of investigatory stop of an automobile by Border Patrol); United States v. Munoz, 701 F.2d 1293 (9th Cir.1983) (roving vehicle stops by Oregon game trooper without founded suspicion violates Fourth Amendment rights). Thus, a brief investigatory stop is allowable as an intermediate response when a game protector can demonstrate articulable facts and rational inferences from the facts which indicate that such a stop is appropriate.

Our study of the record convinces us that the game protectors provided an adequate factual basis to warrant the initial stop of the vehicle in which appellants were traveling. The game protector heard shots, observed the van of appellants coming from the direction of the shots, in an isolated rural area where no other vehicles were sighted, and followed for approximately one-half mile the tire tracks in the snow left by the van to a field where the following indicia of a violation were found: (1) broken cornstalks; (2) footprints; (3) hair thought to be from a deer; and (4) the appearance of blood. The deputy protector saw sufficient distinctive features of the van to suspect that it was owned by appellant Palm. We conclude that the facts as revealed by the record, together with all rational inferences therefrom, demonstrate such a reasonable and articulable suspicion as was sufficient to justify the stop.

While we conclude that the initial stop of the vehicle was valid, the game protectors did not have probable cause at that moment to search. It is well settled that probable cause to justify a search without a warrant exists only where the facts and circumstances within the knowledge of the arresting or searching officer, or of which the officer had reasonable trustworthy information, are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Commonwealth v. Bartlett, 486 Pa. 396, 406 A.2d 340 (1979); Commonwealth v. Rutigliano, 310 Pa.Super. 364, 456 A.2d 654 (1983). An officer may, however, briefly detain a suspect for questioning and then proceed to conduct an actual search if the questioning ripens into probable cause. United States v. Pillo, 522 F.Supp. 855, 861 (M.D.Pa.1981) (Citing Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979) and United States v. Brignoni-Ponce, supra 422 U.S. at 881-82, 95 S.Ct. at 2580, 45 L.Ed.2d 607). See also Commonwealth v. Pullano, 295 Pa.Super. 68, 440 A.2d 1226 (1982); Commonwealth v. LeSeuer, supra; Commonwealth v. Ferraro, 237 Pa.Super. 268, 352 A.2d 548 (1975).

The game protector testified that when he and his deputy stopped the appellants and viewed, with the aid of a flashlight, “something red on their hands [that] appeared to be blood ... [he] felt sure they were involved.” The sum of all of the facts, from the sound of the shots through the observation of the blood on the hands of appellants provided the probable cause necessary to allow the search. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). We conclude, therefore, that the trial court correctly concluded that there was probable cause for the search of the vehicle.

Appellants next assert they were subject to custodial interrogation by the game protectors and were, therefore, entitled to Miranda warnings. The Court in Miranda defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, supra 384 U.S. at 444, 86 S.Ct. at 612, 16 L.Ed.2d at 706 (footnote omitted). Our venerable colleague, Judge J. Sydney Hoffman, pronounced four theorems for guidance in any study of whether an interrogation was custodial in nature when he synopsized the law of Pennsylvania upon this issue in Commonwealth v. Anderson, 253 Pa.Super. 334, 385 A.2d 365 (1978):

(1) The mere fact that a police investigation has focused on a particular person will not require Miranda warnings before police interviews with that person.
(2) If the police in fact place a person in custody or restrict his freedom in any significant way prior to, or during the interview, the interrogators must advise the person of his Miranda rights.
(3) A suspect may be in custody even if the police have not taken him to a police station or formally arrested him.
(4) Custodial interrogation occurs when a suspect is placed in a situation in which he reasonably believes that his freedom of action of movement is restricted by such interrogation.

Commonwealth v. Anderson, supra, 253 Pa.Superior at 345, 385 A.2d at 670-71.

It must be noted during any such determination that: [M]ere focus on a subject is not automatically dispositive of custodial status, but the fact that the subject was the focus of an investigation is a relevant factor during consideration of the second and fourth theorems, namely, whether the freedom of the subject is restricted or the subject is in custody, and whether the subject could reasonably believe that his freedom of movement is restricted.

Commonwealth v. Schoellhammer, 308 Pa.Super. 360, 366, 454 A.2d 576, 579 (1982) (citations omitted).

An application of the Anderson theorems to this appeal compels the conclusions that: (1) the freedom of appellants was restricted in a significant way; and (2) an adequate factual basis existed to support a reasonable belief by appellants that their freedom of action was restricted. The following circumstances of the entire occurrence compel such conclusions: (1) the game protectors pursued the vehicle of appellants with flashing signals; (2) after the vehicle of appellants had halted, the two uniformed and armed game protectors, possessing both real and apparent authority to enforce The Game Law, flanked the van, probed with a flashlight the interior of the vehicle and conducted interrogation of the occupants; (3) appellants were advised that the protectors suspected they were responsible for killing the deer; (4) the District Game Protector “told” appellant Palm to accompany him to the enforcement vehicle; (5) appellants were isolated from one another as the individual interrogation was conducted; (6) the interrogation was conducted while one protector sat next to and the other protector behind each appellant individually in the police vehicle; (7) the interrogation conducted in the protectors’ vehicle went beyond routine questions of an informational nature and became accusatory; (8) the interrogation included advice of certain of the penalties for violation of The Game Law; and (9) appellants had been led to believe “it would be a lot better if [they] owned up to it.” All of these circumstances lead us to conclude that the questioning by the protectors was custodial interrogation and that the statements of appellants must be suppressed.

We hold that a game protector may upon reasonable suspicion stop a vehicle and may upon probable cause search a vehicle but that the game protector must apprise an individual so halted of the rights which Miranda safeguards prior to turning the inquiry from questions of an investigative nature to interrogation that is accusatory. Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980); Commonwealth v. Anderson, supra; Commonwealth v. Bonser, 215 Pa.Super. 452, 258 A.2d 675 (1969). See also Annot., 31 A.L.R.3d 565.

We are of a mind that such a holding is required by the pronouncement of the United States Supreme Court in Estelle v. Smith, 451 U.S. 454, 466-67, 101 S.Ct. 1866, 1875, 68 L.Ed.2d 359, 371 (1981), that:

In Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966), the Court acknowledged that ‘the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.’ Miranda held that ‘the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.’ Id., at 444, 86 S.Ct., 25 1612. Thus, absent other fully effective procedures, a person in custody must receive certain warnings before any official interrogation, including that he has a ‘right to remain silent’ and that ‘anything said can and will be used against the individual in court.’ Id., at 467-469, 86 S.Ct., at 1624-1625. The purpose of these admonitions is to combat what the Court saw as ‘inherently compelling pressures’ at work on the person and to provide him with an awareness of the Fifth Amendment privilege and the consequences of foregoing it, which is the prerequisite for ‘an intelligent decision as to its exercise.’ (emphasis added).

The order of the Common Pleas Court reimposing sentence is vacated and appellants are granted a new trial. Jurisdiction is relinquished.

      . 34 P.S. § 1311.701.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The Game Law confers upon lawfully qualified game protectors the following powers, inter alia:
      (1) enforce The Game Law;
      (2) execute all warrants for violation of The Game Law;
      (3) serve subpoenas issued for the examination, investigation and trial of all offenses against The Game Law;

        (4) carry firearms or other weapons, concealed or otherwise, in the performance of official duty;
      (5) arrest without warrant any person in the act of violating The Game Law, or in pursuit immediately following such violation;
      (6) stop and inspect or search at any time, without warrant, any vehicle or conveyance and its occupants or contents, at any time or place within the Commonwealth;
      (7) inspect or search at any time, without warrant, any clothing worn by any person, or any boat, conveyance or other vehicle of any type or kind, or any receptacle for game, or any hunting party roster or any camp, tent, cabin or detached automobile, trailer or truck used as a temporary abode for the purpose of hunting or trapping, or the dwelling house or outbuildings of a caretaker or a camp or boardinghouse used for the purpose of hunting or trapping, or harboring hunters or trappers;
      (7) secure and execute search warrants, and, in pursuance thereof, enter any building, dwellinghouse, tavern, hotel, boardinghouse, enclosure or car, and break open any apartment, chest, locker, box, trunk, crate, basket, bag, package, or container, and examine the contents thereof;
      (8) seize and take possession of all birds or animals which may have been caught, taken or killed;
      (9) seize all guns, shooting or hunting paraphernalia, traps, dogs, boats, decoys, automotive equipment, or any unlawful device, implement or other appliance used in violation of The Game Law; and
      (10) administer any oath relative to any violation of any law relating to game or other wild birds or wild animals, and where game is found in a camp or in possession or control of any individual or hunting party, to question such person or persons, under oath, relative to the taking, ownership or possession of such game. 34 P.S. § 1311.214.

      . Appellants were confronted with the following penalties under Article VII of The Game Law: (1) fines and costs of prosecution in excess of two hundred dollars ($200.00) each; (2) loss of hunting license for three years; (3) forfeiture of (i) a vehicle, (ii) firearms and (iii) spotlights; and (4) a term of imprisonment in excess of two hundred days each if the fines and costs of prosecution were not paid. 34 P.S. § 1311.731.


author: CERCONE, President Judge:

text:
    462 A.2d 250
    COMMONWEALTH of Pennsylvania v. Samuel Eugene MAXFIELD, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 22, 1983.
    Filed June 24, 1983.

      Robert Bruce Evanick, Public Defender, York, for appellant.
    Floyd Paul Jones, Assistant District Attorney, York, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CIRILLO, and HOFFMAN, JJ.
   CERCONE, President Judge:

This is a direct appeal from judgment of sentence entered after the lower court denied appellant’s motion in arrest of judgment on a robbery conviction. The lower court concludes in its opinion pursuant to Pa.R.A.P. 1925, that it erred in denying appellant’s motion in arrest of judgment as to his robbery conviction. That is, the lower court re-examined the evidence as presented at trial and concluded that it did not support a finding that appellant knew that his co-defendant took a rape victim’s wallet, of which rape appellant was found guilty, nor that appellant acted as an accomplice with his co-defendant in securing the wallet. However, because the case was no longer within the lower court’s jurisdiction, it having been appealed to our Court, the lower court had no authority to rectify the error made.

Inasmuch as the lower court admits the error of its decision, we shall remand the matter to the lower court to reconsider its denial of appellant’s motion in arrest of judgment based upon its Rule 1925 opinion.

Judgment of sentence vacated and case remanded to the lower court.

      . Appellant was also convicted of rape in connection with the same criminal episode, but has preserved no issues as to that conviction.

      . Although appellant’s argument is framed in terms of court error in refusing to grant his demurrer which was lost as an appealable issue when appellant elected to present his case, it is considered as court error in refusing to grant appellant’s motion in arrest of judgment. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976).

      . Our decision renders appellant’s second contention moot. Thus, we will not discuss it.


author: SPAETH, Judge:

text:
    462 A.2d 251
    COMMONWEALTH of Pennsylvania v. Pearl L. KANOUFF, Appellant.
    Superior Court of Pennsylvania.
    Argued April 6, 1983.
    Filed June 24, 1983.

      J. Michael Williamson, Lock Haven, for appellant.
    Frederick D. Lingle, District Attorney, Lock Haven, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   SPAETH, Judge:

This is a consolidated appeal from judgments of sentence for receiving stolen property. One of appellant’s arguments is that the affidavit in support of the search warrant that led to the seized property was not supported by probable cause and that the seized property should therefore have been suppressed as the fruits of an illegal search. We agree and therefore reverse and remand for a new trial.

A magistrate issued a search warrant for a search of appellant’s residence. The affidavit in the application for the warrant contained the following statement on probable cause:

Stolen from the Big Spring Camp, owned by Elmer Wen-rick was 1 Ladys Home Journal Magazine, issued to C. Wenrick, RD 3, Box 156, Halifax, Pa., 17032. The only way mail is sent to C. Wenrick, RD 3, Box 156, Halifax, Pa., is from Ladys’ Home Journal Magazine. C. Wenrick received a chain letter addressed to her at RD 3, Box 156, Halifax, Pa., from Pearl L. Kanouff, 209 4th St., Renovo, Pa., the only way this address could be obtained is from the stolen magazine. Also a confidential person who is a realiable [sic] and upstanding person within the community advised Herb Nesman unloaded a truck of old furniture and other type of older articles at 209/211 4th St., Renovo, Pa., and also that a man in a black pick up truck with partial PA registration CH 6379—arrived at 209-211 4th. St., on October 16, 1979 and left there with a load of articles in his truck. This officer, Tpr. Toboz, knows a John Brownlee, who drives a black pick up truck with PA registration CH 63797, and John Brownlee was contacted by Tpr. Toboz and John Brownlee stated that he went into 211 4th. St., and purchased articles there. While in 211, he observed many boxes containing dishes, pots and pans, towles [sic] furniture etc. Also advised he was in the downstairs of 209 4th. street, Renova, Pa., and this place was completly [sic] remodeled. John Brownlee advised that the person he bought the furniture from had access and had both 209 and 211 4th. Street up for sale. Also advised he is the person who remodeled 209 4th Street. Brownlee further stated that the subject did not live at 209-211 4th. St., but lived up Kettle Creek towards the Dam.
Realiable [sic] sources from the Renovo area who are upstanding citizens informed Tpr. Toboz that Pearl Ka-nouff and Herbert Nesman reside together up Kettle Creek. They also advised that the property at 209/11 4th. Street is owned by Pearl Kanouff, and remodeled by Herbert Nesman.

“Probable cause to issue a search warrant has been defined as those facts reasonably necessary to show (1) that the items sought are connected with criminal activity, and (2) that the items will be found in the place to be searched.” Commonwealth v. Council, 491 Pa. 434, 443, 421 A.2d 623, 627 (1980); Commonwealth v. Ryan, 300 Pa.Super. 156, 446 A.2d 277 (1982). The facts stated in an affidavit will support a search warrant only when they would persuade a reasonable person that there is probable cause for a search; mere suspicion or conjecture is insufficient. Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 445 A.2d 1214 (1982).

Here, the facts stated in the affidavit suggested the possibility that stolen property might be found at 209/211 4th Street, but no facts were stated that would lead a reasonable person to believe that appellant’s residence contained stolen property. Many of the facts, moreover, were described as having been learned from unnamed persons who were “reliable,” but very little basis for the conclusion that they were reliable was stated. The statement that because she had sent a chain letter to a certain person, appellant must have had in her possession a stolen magazine from which she had obtained that person’s address was a non sequitur.

The judgments of sentence are vacated and the case remanded for new trial. Jurisdiction relinquished.

      . Appellant also argues that the Commonwealth violated Pa.R.Crim.P. Rule 1100. This argument lacks merit. Appellant makes other arguments, but because of our holding, we do not reach them.


author: WIEAND, Judge:

text:
    462 A.2d 253
    WILLIAM J. HECK BUILDERS, INC. v. Sheilamarie MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 3, 1983.
    Filed June 24, 1983.

      Lawrence D. MacDonald, Wilkes-Barre, for appellant.
    John Charles Mascelli, Scranton, for appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

In this assumpsit action to recover a final installment of $9,000 allegedly due under a contract for the construction of a vacation home in Pike County, the plaintiff made an oral motion for summary judgment during a bench trial. The court, without hearing defendant’s evidence, made findings of fact and entered “summary judgment” in.favor of the plaintiff. The defendant, who contended that plaintiff’s work was incomplete and defective, appealed the judgment to this Court. We reverse.

The complaint filed by William J. Heck Builders, Inc., appellee, contained averments that Sheilamarie Martin, appellant, was indebted to appellee for the final installment on a building contract and for unpaid extras in the amount of $307.50. Martin filed an answer admitting that she had withheld $9,000 but asserting that appellee had not completed the dwelling. Under the heading of “counterclaim” she referred to a separate action which she had commenced for defective workmanship and requested that her action for defective performance be consolidated with the action commenced by appellee. Without a prior order allowing consolidation, appellee’s action for the final installment went to trial. At the conclusion of appellee’s case, the court entertained an oral motion by appellee for summary judgment in its favor. After hearing argument, but without receiving appellant’s evidence, the court granted appellee’s motion and entered summary judgment. The court did so because it deemed the general averments of appellant’s answer insufficient to constitute a denial that moneys were owed.

Pa.R.C.P. 1035(a) permits a party to move for summary judgment “after the pleadings are closed, but within such time as not to delay trial.” The function of a summary judgment is to avoid a useless trial. See: Rose v. Food Fair Stores, Inc., 437 Pa. 117, 120, 262 A.2d 851, 853 (1970); Goodrich-Amram 2d, § 1035:1. After trial has commenced, a motion for summary judgment is no longer appropriate. See and compare: Ruhe v. Kroger Company, 425 Pa. 213, 228 A.2d 750 (1967). Where, as here, the trial was without jury, the proceedings should have followed that prescribed by Pa.R.C.P. 1038.

Moreover, summary judgment may be entered only in the clearest of cases where there is no doubt as to the absence of a triable issue of fact. Barber v. Harleysville Mutual Insurance Company, 304 Pa.Super. 355, 358, 450 A.2d 718, 719 (1982); Staino v. Johns-Manville Corporation, 304 Pa.Super. 280, 285, 450 A.2d 681, 685 (1982); Harvey v. Hansen, 299 Pa.Super. 474, 478, 445 A.2d 1228, 1229-1230 (1982); Community Medical Services of Clearfield, Inc. v. Local 2665, American Federation of State, County and Municipal Employees, AFL-CIO, 292 Pa.Super. 238, 242, 437 A.2d 23, 25 (1981); Cercone v. Cercone, 254 Pa.Super. 381, 386, 386 A.2d 1, 3 (1978). The moving party has the burden of demonstrating that no genuine issue as to any material fact exists and that he is entitled to judgment as a matter of law. Barber v. Harleysville Mutual Insurance Company, supra, 304 Pa.Superior at 358, 450 A.2d at 719; Harvey v. Hansen, supra, 299 Pa.Superior Ct. at 478, 445 A.2d at 1230; Dippold v. Amherst Insurance Company, 290 Pa.Super. 206, 208, 434 A.2d 203, 204 (1981); Giannini v. Carden, 286 Pa.Super. 450, 454, 429 A.2d 24, 26 (1981); Tom Morello Construction Company, Inc. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980) allocatur denied December 31, 1980; Cercone v. Cercone, supra, 254 Pa.Superior at 385-386, 386 A.2d at 3. In determining a motion for summary judgment the court must view the record in a light most favorable to the non-moving party. Staino v. Johns-Manville Corporation, supra, 304 Pa.Superior at 285, 450 A.2d at 685; Harvey v. Hansen, supra, 299 Pa.Superior at 478, 445 A.2d at 1230; Dippold v. Amherst Insurance Company, supra, 290 Pa.Superior at 208, 434 A.2d at 204; Giannini v. Carden, supra, 286 Pa.Superior at 454, 429 A.2d at 26; Cercone v. Cercone, supra, 254 Pa.Superior at 386, 386 A.2d at 3.

In the instant case, the trial court entered summary-judgment for the plaintiff-appellee because the court deemed defendant-appellant’s answer insufficient to deny the averments of the complaint. The answer, as we have observed, admitted that moneys had been withheld but alleged that the dwelling had not been completed satisfactorily. The averments of the answer, as appellee contends, were general. However, Pa.R.C.P. 1019(g) permits a party to incorporate by reference “any matter which is recorded or transcribed verbatim in the office of the prothonotary, clerk of any court of record, recorder of deeds or register of wills of such county.” The answer in the instant case had been filed pro se and in some respects failed to comply with Pa.R.C.P. 1029(a). Nevertheless, the intent of the answer was clear. It contained a reference to and an incorporation of the allegations of fact contained in the separate complaint filed by Ms. Martin against Heck Builders for defective workmanship. In effect, her answer admitted that $9,000 had not been paid to the builder, contained a general averment of defective performance, and incorporated by reference the specific averments of a pleading on file in the office of the prothonotary in a separate action between the same parties. This answer was sufficient to demonstrate the existence of a material issue requiring resolution by the trier of the facts. Under these circumstances, the trial court could not properly enter a summary judgment at the conclusion of the plaintiff-appellee’s case. Appellant was entitled to be heard on the issue of whether appellant had fully performed the contract by constructing the home in a workmanlike manner.

The judgment is reversed and set aside, and the case is remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Pa.R.C.P. 1038 provides, inter alia:
      "(a) Except as otherwise provided in this rule, the trial of an action in assumpsit, by a judge sitting without a jury, shall be conducted as nearly as may be as a trial by jury is conducted and the parties shall have like rights and privileges, including the right to suffer or move for nonsuit.
      (b) The decision of the trial judge may consist only of general findings as to all parties but shall dispose of all claims for relief. The trial judge may, if he wishes, include as part of the decision specific findings of fact and conclusions of law with appropriate discussion.
      (c) The decision may be made orally in open court at the end of the trial, and in that event shall be forthwith transcribed and filed in the office of the prothonotary, or it may be made thereafter in writing and filed forthwith. In either event the prothonotary shall notify all parties or their attorneys of the date of filing. The trial judge shall render his decision within seven (7) days after the conclusion of the trial except in protracted cases or cases of extraordinary complexity.

      . Admissions and denials did not refer specifically to the paragraph in which the averment admitted or denied was set forth.