author: BROSKY, Judge: TAMILIA, Judge,

text:
    489 A.2d 213
    COMMONWEALTH of Pennsylvania v. Elbert GRAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 4, 1984.
    Filed March 1, 1985.

      Paul R. Gettleman, Zelienople, for appellant.
    Melianda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, TAMILIA and ROBERTS, JJ.
   BROSKY, Judge:

This appeal is from the judgment of sentence after a jury found appellant guilty of two counts of robbery. He contends that: (1) trial counsel was ineffective for introducing appellant’s mugshot into evidence and failing to interview potential alibi witnesses; and (2) that the trial court erred in sentencing him on both robbery counts when they arose out of the same transaction. We agree in part with appellant’s first contention and remand for an evidentiary hearing.

On January 26, 1982, a robbery occurred at the Casbah Lounge in Pittsburgh. A man came into the bar and, after being served a glass of water, pulled out a shotgun and robbed the bartender and a customer.

The following month both the bartender and the customer selected appellant’s picture from a photographic array. The customer also identified appellant from a lineup. Both the bartender and the customer identified appellant at the preliminary hearing.

A pre-trial motion to suppress the identification was heard and denied by the trial court. The trial began on October 26, 1982 and, on October 27, 1982, the jury found him guilty of robbery. Post-trial motions were timely filed and denied and, on February 1, 1983, appellant was sentenced to 2% to 5 years imprisonment on one of the robbery counts and 10 years consecutive probation on the other. This appeal timely followed.

Appellant first argues that trial counsel was ineffective for introducing appellant’s mugshot into evidence. During his cross-examination of the Commonwealth’s witnesses counsel used the mugshots the police had shown the witnesses in the photographic array to question these witnesses concerning their identification. After he was done with the questioning, he moved for the admission of the photos into evidence. Trial counsel also indicated that the photos were of people who had been arrested at' some time.

Appellant correctly notes that generally testimony of prior criminal activity is inadmissible. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). Thus, reference to a defendant’s photograph from which a juror could reasonably infer that the accused had engaged in prior criminal activity constitutes reversible error. Id. Instantly, there is no question that a juror could have so inferred from the testimony.

The preceding discussion clearly establishes that appellant’s claim of ineffective assistance is at least of arguable merit. However, in order to prove a claim of ineffective assistance, a defendant must show both that the claim is of arguable merit and that counsel had no reasonable basis for his action. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

There are unquestionably instances where trial counsel may properly elect to allow the introduction of technically objectionable testimony where there is an advantage to be gained by its admission. For example the U.S. Supreme Court recognized that counsel may properly allow his opponent to introduce objectionable evidence where the defense is in possession of information to contradict that testimony and thereby create an issue of credibility which might provide a basis for a jury to acquit. Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564 [569], 13 L.Ed.2d 408 (1965). In Commonwealth v. Goosby, 461 Pa. 229, 336 A.2d 260 (1975) we approved of trial strategy which waived an objection to the admissibility of a statement of the defendant where the statement indicated that the shooting might have been in self-defense or at least in the heat of passion. There we reasoned that although the statement admitted the shooting, the prosecution had eyewitnesses who had presented impressive evidence to establish that appellant was the perpetrator. In that situation we concluded:
“[b]y acquiescing to the admission of the statement and by using the exculpatory portions of it to rebut or weaken the prosecution’s very strong case, counsel had an eminently ‘reasonable basis designed to effectuate appellant’s interest.’ ”

However, in Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974) we held that trial counsel was ineffective for eliciting testimony of defendant’s convictions for charges (which could not have been otherwise introduced). In that opinion we had occasion to observe:

“Even where its use is properly limited to impeaching credibility, the introduction of a defendant’s criminal record possesses a potential for severe prejudicial impact on a jury. Thus, there would rarely be a time when the introduction of such evidence would produce, some result favorable to the defendant.

Commonwealth v. Witherspoon, 481 Pa. 321, 327-28, 392 A.2d 1313, 1316-17 (1978).

Thus, although it is unlikely that counsel’s action had a reasonable basis, we must consider that possibility. “The problem in this case, as in most cases where the claim of ineffective assistance of counsel is raised on direct appeal, is that we have before us no record of any hearing at which is delineated trial counsel’s reasons for taking the steps later challenged ... Where ... it is impossible to tell from the record whether or not the action of trial counsel could have had a rational basis, the appellate court will vacate the judgment ... and remand for an evidentiary hearing at which trial counsel may state his reasons for having chosen the course of action taken.” Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976) (footnote omitted), relying on Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605 n. 8, 235 A.2d 349, 353 n. 8 (1967). Since we find it impossible to tell from the record whether there was a reasonable basis for counsel’s action, we must remand for an evidentiary hearing.

Appellant also argues that counsel was ineffective for failing to interview potential alibi witnesses. “Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective.” Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). In the context of appellant’s claim, Pettus requires him to offer to prove that counsel was aware of the alibi witnesses, see Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040 (1980), and that the witnesses would have been helpful in establishing his alibi defense, see Commonwealth v. Leonard, 499 Pa. 357, 453 A.2d 587 (1982).

This appellant has done. He has offered to prove that he advised counsel that, at the time of the robbery, he was speaking on the phone in a three way conversation with his mother and an attorney and that trial counsel never investigated these facts. We conclude that these facts if proven show that counsel may have been ineffective and will remand for an evidentiary hearing in order to give appellant an opportunity to prove trial counsel’s ineffectiveness.

Appellant’s final contention, is that he should not have been sentenced on both counts of robbery since they arose out of the same transaction. We disagree.

The natural and logical meaning of this definition of the crime of robbery is that a separate robbery may be found to have occurred each time another individual is put in fear, and from whom goods or money is taken. Therefore, if five individuals are robbed in a room at gunpoint, five separate robberies have occurred since each victim was placed in apprehension by the acts of the assailant.

Commonwealth v. Lockhart, 223 Pa.Super. 60, 62-3, 296 A.2d 883, 884 (1972); see Commonwealth ex rel. Otten v. Smith, 126 Pa.Super. 238, 190 A. 525 (1937).

Accordingly, the judgment of sentence is vacated and the case is remanded for an evidentiary hearing on appellant’s two averments that trial counsel was ineffective. If the trial court finds that counsel was ineffective, a new trial must be granted. Otherwise, the sentence shall be reinstated. Jurisdiction relinquished.

TAMILIA, J., files a Concurring and Dissenting Opinion.

TAMILIA, Judge,

concurring and dissenting:

I agree with the majority’s conclusion that this case should be remanded for an evidentiary hearing regarding the strategy chosen by appellant’s counsel whereby he referred to the photographic array, which contained appellant’s photograph, during cross-examination and moved to admit the array into evidence. In view of the fact that the appellee has acknowledged that this strategy presented a degree of risk, it requires remand for an evidentiary hearing in order to evaluate appellant’s claim of ineffective assistance of counsel. This result is mandated by the present state of the record, which contains no explanation for counsel’s trial strategy. As such, the present record is inadequate to make an informed determination of the claim possible. Commonwealth v. Reyes, 321 Pa.Super. 149, 467 A.2d 1173 (1983). In addition, I concur with the majority’s conclusion that the lower court acted properly in sentencing appellant on both counts of robbery. See Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984).

I respectfully dissent, however, from the majority’s decision to remand for an evidentiary hearing regarding trial counsel’s ineffectiveness for failing to interview potential alibi witnesses as this claim is without merit. It is well-settled that the failure of trial counsel to call a potential alibi witness does not constitute ineffective assistance unless there is some showing that the testimony of the absent witness would have been helpful in establishing the asserted defense. See e.g., Commonwealth v. Leonard, 499 Pa. 357, 453 A.2d 587 (1982); Commonwealth v. McIntyre, 492 Pa. 306, 424 A.2d 874 (1981); Commonwealth v. Hoyle, 274 Pa.Super. 220, 418 A.2d 376 (1979). Trial counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without investigation and without adequate explanation, failed to call the witness at trial. Commonwealth v. Hollerbush, 298 Pa.Super. 397, 444 A.2d 1235 (1982).

In the instant case, appellant took the stand in his own defense and when asked by trial counsel if he knew where he was on the day of the alleged incident, appellant replied, “No, I don’t.” (N.T. 155). Appellant’s answer to this inquiry belies the claim which he asserts and negates the need for alibi witnesses since appellant admits he did not know where he was on the day of the incident. Moreover, appellant’s testimony is devoid of any indication that he advised trial counsel of the existence of alibi witnesses. Consequently, it appears that appellant has made a bald assertion of ineffective assistance of counsel which is unsupported by both the facts of the present case and the law of Pennsylvania.

Our Supreme Court has recently held that “where it is clear that allegations of ineffectiveness of counsel are baseless or meritless then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed.” Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984) (citation omitted). As appellant’s alibi defense would have been fruitless in light of his own uncertainty as to his whereabouts on the day the incident occurred, trial counsel cannot be deemed ineffective for failing to pursue this line of defense. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Finally, this Court has recently held that after a defendant has shown counsel was ineffective as defined under the by now familiar precepts of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) and its progeny, in order to be entitled to a new trial, he must show that counsel’s deficient performance resulted in prejudice. Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984) (citing with favor the ineffectiveness standard announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Here, the appellant has unequivocally failed to establish the necessary degree of prejudice to satisfy this requirement.

Accordingly, I would limit the evidentiary hearing on remand solely to the issue of trial counsel’s ineffectiveness for referring to appellant’s photograph during cross-examination and eliciting that they were derived from police files, Commonwealth v. Reiss, 503 Pa. 45, 468 A.2d 451 (1983); Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972).

      . 18 Pa.C.S. § 3701.

      . We note that the issue of trial counsel’s ineffectiveness is properly before us, since this is the first stage of the proceedings at which counsel other than whose ineffectiveness is being alleged is representing appellant. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

      . Appellant also attempts to argue that trial counsel was ineffective in regard to the lineup and preliminary hearing identifications. This issue was not set forth in appellant’s statement of the questions involved portion of his brief nor suggested thereby. Therefore, it will not be considered.
      The statement of the questions involved must state the question or questions in the briefest and most general terms ... This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.
      Pa.R.A.P. 2116(a); see Commonwealth v. Calloway, 313 Pa.Super. 173, 459 A.2d 795 (1983).


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    489 A.2d 218
    COMMONWEALTH of Pennsylvania v. James A. BROADIE, James H. Broadie, James Broadie, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 26, 1984.
    Filed March 1, 1985.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and ROBERTS, JJ.
   BROSKY, Judge:

This appeal is from the judgment of sentence imposed after appellant pled guilty to five counts of robbery and three counts of criminal conspiracy. Appellant contends that: (1) the double jeopardy clause of the United States Constitution was violated when the trial court increased his sentence; (2) the trial court erred by basing the increase in his sentence on uncorroborated statements by the prosecution; and (3) the trial court erred by increasing his sentence without a showing of any change in circumstances. We disagree with appellant, and, accordingly, affirm the judgment of sentence.

On March 21, 1983, appellant pled guilty to five counts of robbery and three counts of criminal conspiracy. He was sentenced to five concurrent terms of five to ten years imprisonment on May 10, 1983. The Commonwealth on May 12, 1983, filed a petition to reconsider the sentence. Following a hearing on the petition on May 19, 1983, the sentencing court vacated one of the concurrent sentences and made it consecutive to the other four sentences. Appellant did not file a motion to modify the new sentence. This appeal timely followed.

All of appellant’s claims involve the propriety of the sentence imposed on May 19, 1983. We note that the Commonwealth contends that all sentencing claims other than those involving the legality of the sentence have been waived by appellant’s failure to file a motion to modify sentence under Pa.R.Crim.P. 1410.

Pa.R.Crim.P. 1410 requires that a motion to modify sentence be filed with the sentencing court within ten days after imposition of sentence. Failure to file such a motion waives all sentencing issues, except those involving the legality of the sentence. See Commonwealth v. Warden, 335 Pa.Super. 315, 484 A.2d 151 (1984); Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982). The purposes of this rule are to give the trial court the first opportunity to modify sentence and to give the appellate court the benefit of the trial court’s views. Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982).

The question that presents itself instantly is whether a second Rule 1410 motion must be filed if a party wishes to challenge a sentence that has already been modified pursuant to Rule 1410. This question could arise if a party is dissatisfied with a sentence that was modified pursuant to its own motion or, as in the instant case, pursuant to a motion by the other party. In either case, although Rule 1410 makes no express provision for the filing of an additional motion, we believe the purposes behind the rule require such a construction.

A modified sentence constitutes a new sentence from the date of which the time for filing a notice of appeal will begin to run anew. See Pa.R.Crim.P. 1410 (comment). The same reasons that supported the filing of a modification motion in regard to the original sentence support the filing of such a motion for the new sentence. If the party who filed the original motion is still dissatisfied with the sentence, a second motion gives the sentencing court the first opportunity to modify the new sentence. Similarly, the trial court will have that opportunity if, as is the case instantly, the party who did not file the original motion is dissatisfied with the new sentence. In both cases, the additional motion will give the appellate court the benefit of the sentencing court’s views of the party’s claims of error as to the new sentence. Such an additional motion will be particularly beneficial where, as is also the case instantly, the defendant wishes to challenge some aspect of the modification hearing or the sentencing court’s reasons for the new sentence rather than simply the length of the sentence. Thus, we conclude that Pa.R.Crim.P. 1410 requires that a motion to modify sentence be filed with the sentencing court within ten days after imposition of a modified sentence in order to preserve any sentencing issues. However, since Rule 1410 does not expressly require this procedure, we believe that it would be unfair and would generate unnecessary post-conviction litigation to enforce this requirement retrospectively. Cf. Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (applying prospectively only requirements of specificity under Pa.R.Crim.P. 1123). Therefore, we hold that effective 60 days from today the procedure set forth above must be followed in order to preserve sentencing issues under Rule 1410.

* * sfc * Hs

We now turn to the merits of this appeal. Appellant first contends that the double jeopardy clause of the United States Constitution, in its protection against multiple punishments for the same offense, prohibited the sentencing court from modifying his sentence so as to increase his punishment.

This issue was decided adversely to appellant in the case of Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982). In Anderson, this Court held that the Commonwealth was required to file a Rule 1410 motion in order to effectuate its right to appellate review of the sentencing decision. In reaching our conclusion we stated:

In fact, the Supreme Court of the United States has held that a federal statute permitting the government to seek an increased sentence on appeal does not violate principles of double jeopardy. United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). The “Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents [review and] later increase.” Id. at 137, 101 S.Ct. at 437, 66 L.Ed.2d at 346. “The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” Id. at 135, 101 S.Ct. at 436, 66 L.Ed.2d at 344, quoting from Bozza v. United States, 330 U.S. 160, 166-167, 67 S.Ct. 645, 648-649, 91 L.Ed. 818, 822 (1947).

Anderson, 304 Pa.Superior Ct. at 481, 450 A.2d at 1014.

Appellant next argues that the sentencing court erred in relying on uncorroborated statements by the prosecutor during the modification hearing as a basis for increasing appellant’s sentence. During the hearing, the prosecutor made statements concerning the factual bases of appellant’s prior convictions. Appellant contends that the court should not have relied on these statements absent corroboration in the form of official records of the prior convictions or testimony by a person with firsthand knowledge of the facts of the case.

In support of this proposition, he relies on the case of Commonwealth v. Schwartz, 275 Pa.Super. 112, 418 A.2d 637 (1980), in which this court stated that “a defendant has a right to minimal safeguards to ensure that the sentencing court does not rely on factually erroneous information, and any sentence predicated on such false assumptions is inimicable to the concept of due process.” Id., 275 Pa.Superior Ct. at 119-20, 418 A.2d at 640 (portion of dissent adopted by majority) (citations omitted).

We note, however, that Schwartz involved a situation in which the sentencing court relied on ex parte information in forming its sentence. The holding of the case was that information relied on by the sentencing court should be disclosed to a defendant so that he might have an opportunity to examine it and dispute its accuracy.

This is precisely the opportunity that was afforded appellant in the case sub judice. The prosecutor made her statements in open court and appellant did not (nor does he now) dispute their accuracy.

As we stated in Schwartz, “[a] sentencing judge ‘may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.’ United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972).” Id., 275 Pa.Superior Ct. at 119-120, 418 A.2d at 640-41; see Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980). Thus, we find no merit to appellant’s second issue.

Appellant’s final contention is twofold. He argues that the sentencing judge failed to state his reasons for modifying the sentence on the record and that, in any event, there was no change in circumstances between the date of the original sentence and the state of the modification hearing justifying the increase. We disagree with appellant as to both points.

While we agree that the case of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (sentencing judge must state his reasons for his sentence on the record), would require that the sentencing judge place his reasons for increasing a sentence on the record, our review of the record indicates that he did so in this case. He clearly stated that he was increasing the sentence because he had been unaware of the serious nature of appellant’s past offenses.

Secondly, we see no need to consider whether the sentence was thus based on a change of circumstances because we believe no such change is necessary to allow modification of a sentence. Although appellant cites no authority in support of his position, it would appear that he is relying on the principle that:

[WJhenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
North Carolina v. Pearce, 395 U.S. [711], at 726, 89 S.Ct. [2072] at 2081, 23 L.Ed.2d [656] at 670 [1969]. The reason for this is primarily to protect the defendant from any vindictiveness on the part of the judge at the second trial

Commonwealth v. DeCaro, 298 Pa.Super. 32, 37, 444 A.2d 160, 162-63 (1982).

DeCaro is obviously distinguishable from the instant case on the basis that the more severe sentence was imposed not after a new trial, but after a modification hearing and the dangers present there are not present here. We see no reason why the sentencing court, pursuant to a motion under Rule 1410, cannot simply reconsider exactly the same facts and circumstances of the case previously considered and conclude that they warrant a different sentence. In fact, this is precisely what defendants frequently request sentencing courts to do in the context of a claim that a sentence is manifestly excessive. For these reasons, we find appellant’s third issue to be meritless.

Finding all of appellant’s issues to be without merit, we must affirm the judgment of sentence.

Accordingly, the judgment of sentence is affirmed.

      . U.S. Const. Amend. V.

      . See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

      . Such a double jeopardy claim raises the issue of the lawfulness of appellant’s sentence. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). Since claims of illegality of sentence cannot be waived, Fortune, supra, this issue would, in any event, be properly before us.

      . We note that appellant argues that nature of the past offenses was contained in the pre-sentence report.

      . A Rule 1410 motion by the Commonwealth, of course, presents no question of vindictiveness by the trial court for any action by the defendant. In the case of a Rule 1410 motion by the defendant, the court could not increase the sentence since it cannot raise issues sua sponte. Commonwealth v. Murphy, 305 Pa.Super. 246, 451 A.2d 514 (1982).


author: WIEAND, Judge:

text:
    489 A.2d 222
    Sonia GOTTFRIED and Leonard Gottfried, H/W, Appellants, v. AMERICAN CAN COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 28, 1984.
    Filed March 1, 1985.

      Jeffrey S. Kahn, Norristown, for appellants.
    Ronald H. Sherr, Norristown, for appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

Sonia Gottfried cut her hand while opening a can of sunflower nuts. In an action against American Can Company, the manufacturer of the can, she contended that the can had been defectively manufactured and/or designed. A jury found that Mrs. Gottfried’s injury had not been caused by a defect in the can but because of her own act of misuse in permitting her hand to come into contact with the sharp edges of the partially opened can. On appeal from the judgment entered on the verdict, Mr. & Mrs. Gottfried, the appellants, contend (1) that the verdict was against the weight of the evidence; (2) that the trial court erred in refusing to allow into evidence a can manufactured four years after the injury for the purpose of showing improvements made in the can by the defendant-manufacturer; (3) that the trial court erred in finding American Can Company’s expert witness qualified to give opinion testimony; and (4) that the trial court failed to give the jury adequate and correct instructions. We have examined these issues carefully but find therein no basis for overturning the verdict of the jury. The judgment, therefore, will be affirmed.

The can of nuts had been purchased on November 11, 1977. The can was equipped with a self-opening lid; a tab, when pulled, caused the lid to separate from the remainder of the can. Mrs. Gottfried, who knew that opening the can would expose sharp edges of metal, allowed her hand to come into contact with a sharp metal edge of the partially opened can. She wasn’t certain whether the contact had been with the lid or the exposed side of the can because she hadn’t been looking when she cut her hand. The laceration was one and one-half centimeters in length and occurred between the thumb and forefinger of her left hand. Lester Moskowitz, a professor of engineering at Spring Garden College who was called as an expert witness by plaintiffs, testified that the can was defective because inadequate provision had been made for stress and because the can lacked safety features used by other manufacturers to prevent injury by sharp edges. Similar cans designed by other manufacturers were produced and received into evidence for examination by the jurors.

American Can conceded that the can opened by Mrs. Gottfried had not opened precisely as designed. It contended and the jury found, however, that the failure of the can to open as intended had not been the cause of the injury. The laceration had been caused by Mrs. Gottfried’s failure to pay attention to what she was doing and in placing her hand along one of the sharp edges of the partially opened can. Douglass Miller, an employee of American Can who had had experience in the design and manufacture of cans, refuted the testimony of plaintiffs’ engineer. He said that all cans opened by separating metal from metal produced sharp edges. He selected one of the cans produced by plaintiffs’ expert and sliced a banana with a metallic edge of the opened can in order to demonstrate that it, too, had sharp edges. He testified that the can on which Mrs. Gottfried had cut her hand was not defective and had met all manufacturer’s standards. He explained that the safety features recommended by Moskowitz would not have prevented the injury under the circumstances surrounding Mrs. Gottfried’s use of the can in this case. Her injury had been caused, he said, by her own misuse of the product in allowing her hand to rub against or come into contact with the sharp edges of metal present on an opened can. Because it was a well known fact that metal cans, when opened, had sharp edges, he said, the average consumer, being aware thereof, could be expected to realize the danger of allowing his or her hands to come into contact with the sharp edges of an opened can.

A new trial will be granted on grounds that the verdict is against the weight of the evidence “ ‘only where the verdict is so contrary to the evidence as to shock one’s sense of justice____ [The plaintiff] is not entitled to a new trial where the evidence is conflicting and the jury could have decided either way.’ ” Suskey v. Loyal Order of Moose Lodge No. 86, 325 Pa.Super. 94, 102, 472 A.2d 663, 667 (1984), quoting Jacob Kline Cooperage, Inc. v. George W. Kistler, Inc., 286 Pa.Super. 84, 87-88, 428 A.2d 583, 585 (1981) (citations omitted). See: Burrell v. Philadelphia Electric Co., 438 Pa. 286, 289, 265 A.2d 516, 518 (1970); Cianci v. Burwell, 299 Pa.Super. 387, 390, 445 A.2d 809, 810 (1982).

In this case, plaintiffs were required to prove by a preponderance of the evidence not only that the can was defective but also that the defect was a substantial factor in causing the harm. Sherk v. Daisy-Heddon, 498 Pa. 594, 598, 450 A.2d 615, 617 (1982); Evans v. Thomas, 304 Pa.Super. 338, 344, 450 A.2d 710, 712 (1982); Lenkiewicz v. Lange, 242 Pa.Super. 87, 91, 363 A.2d 1172, 1175 (1976). See: Swartz v. General Electric Co., 327 Pa.Super. 58, 69-70, 474 A.2d 1172, 1176 (1984). The evidence was such that a jury could have found that even though the can did not open as fully and precisely as intended, the failure in this respect was not the cause of Mrs. Gottfried’s, laceration. Rather, a jury could have found, Mrs. Gottfried cut her hand on an exposed, sharp edge of the can after the can had been partially opened solely because she did not look where she placed her hand. The fact pattern found by the jury was akin to that envisioned by a panel of this Court in Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444, 467 A.2d 615 (1983), when it said:

The ... issue of causation is raised when the plaintiffs action is so reckless that the plaintiff would have been injured despite the curing of any alleged defect, or is so extraordinary and unforeseeable as to constitute a superseding cause.

Id., 320 Pa.Superior Ct. at 452, 467 A.2d at 619 (citations omitted). See, e.g.: Henrich v. Cutler Hammer Co., 460 F.2d 1325 (3d Cir.1972) (Pennsylvania law); Davis v. R.H. Dwyer Industries, Inc., 548 F.Supp. 667 (E.D.Pa.1982) (Pennsylvania law); Vargus v. Pitman Mfg. Co., 510 F.Supp. 116 (E.D.Pa.), aff'd mem., sub nom. Pitman Mfg. Co. v. Henkels & McCoy, Inc., 673 F.2d 1301 & 673 F.2d 1304 (3 Cir.1981) (Pennsylvania law); Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603 (1968).

We agree with the trial court that the jury’s verdict in the instant case was not so contrary to the evidence as to shock the conscience and require that a new trial be granted. The jury’s acceptance of the manufacturer’s argument that the alleged defect in the can was not the cause of Mrs. Gottfried’s injuries was based upon competent evidence and will not be disturbed.

In order to show that the “state of the art” was such that safety features were available to reduce the danger of sharp edges, plaintiffs’ expert produced cans placed on the market by other manufacturers in 1977. These cans were received into evidence and described to the jury by the witness. However, the trial court refused to allow into evidence a can manufactured by American Can Company in 1981 to show that some of the same features had by then been incorporated into cans made by appellee. Appellants contend that this was error.

The traditional rule in negligence cases has been that post-injury repairs or improvements are inadmissible to show a lack of due care at the time of injury. See: Incollingo v. Ewing, 444 Pa. 263, 294, 282 A.2d 206, 222-223 (1971); Pressler v. Pittsburgh, 419 Pa. 440, 443-444, 214 A.2d 616, 618 (1965); O’Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 289, 423 A.2d 1251, 1260 (1980). In Matsko v. Harley Davidson Motor Co., 325 Pa.Super. 452, 473 A.2d 155 (1984), Cavanaugh, J., dissenting, a panel of this Court held that the usual policy reasons for excluding post-injury alterations did not have application to actions based on strict liability for a defective product. The panel there held that it was not error to admit into evidence a post accident recall notice for the motorcycle involved in the accident. The panel majority concluded that the evidence was not barred by policy considerations and that under the facts of that case the recall notice was relevant. The decision did not alter the general rule that post accident conduct must nevertheless be shown to be relevant in order to be admissible.

In cases in which it has been alleged that a product was defectively designed, the jury is required to determine whether the product lacked any safeguard necessary to make it safe for normal use. Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978). But see: McKay v. Sandmold Systems, Inc., 333 Pa.Super. 235, 482 A.2d 260 (1984). In such cases it is relevant to show the “state of the art.” See: Brogley v. Chambersburg Engineering Co., 306 Pa.Super. 316, 322, 452 A.2d 743, 746-747 (1982); W. Kimble & R. Lesher, Products Liability § 228 (1979). However, it is only the state of the art at the time of design and/or manufacture that is relevant. See: Brogley v. Chambersburg Engineering Co., supra, 306 Pa.Superior Ct. at 322, 452 A.2d at 746-747; W. Keeton & W. Prosser, The Law of Torts § 99, at 701 & n. 38 (5th ed. 1984). Design improvements made four years after an injury has occurred are not relevant to show the state of the art at the time that the injury occurred. Therefore, the trial court did not err in sustaining an objection to the admission of a can manufactured by appellee in 1981 for the purpose of showing that the can manufactured in 1977 had been defectively designed.

Whether a witness has been properly qualified to give expert opinion testimony is vested in the discretion of the trial court. Abbott v. Steel City Piping Co., 437 Pa. 412, 421, 263 A.2d 881, 885 (1970); Tyus v. Resta, 328 Pa.Super. 11, 26, 476 A.2d 427, 435 (1984); Morris v. Moss, 290 Pa.Super. 587, 591, 435 A.2d 184, 186 (1981). “The Pennsylvania standard of qualification for an expert witness is a liberal one. Tf a witness has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his evidence is for the jury.’ Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974).” Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 597-598, 437 A.2d 1198, 1201 (1981) (plurality opinion). See: Pratt v. Stein, 298 Pa.Super. 92, 152-153, 444 A.2d 674, 706 (1982). But see: Burch v. Sears, Roebuck & Co., supra 320 Pa.Super. at 471 n. 4, 467 A.2d at 629 n. 4 (Dissenting Opinion by Wieand, J.); Ragan v. Steen, 229 Pa.Super. 515, 528, 331 A.2d 724, 736 (1974) (Concurring Opinion by Spaeth, J.). Although the witness must demonstrate some special knowledge or skill, there is no requirement that a witness acquire expertise as a result of formal schooling; expertise acquired by experience is expertise nonetheless. See, e.g.: Rutter v. Northeastern Beaver County School District, supra; Abbott v. Steel City Piping Co., supra; Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967); Churbuck v. Union Railroad Co., 380 Pa. 181, 110 A.2d 210 (1955); Hughes v. Emerald Mines Corp., 303 Pa.Super. 426, 450 A.2d 1 (1982).

An examination of the record in this case discloses no abuse of discretion on the part of the trial court which permitted Douglass Miller to testify as an expert witness for the defense. He was employed as American Can’s technical service coordinator and was knowledgeable concerning the design objectives and manufacturing process adopted by the manufacturer. In this capacity he had assisted in the design and modification of containers manufactured by American Can. Although his undergraduate degree had been in chemistry and not engineering, his qualifying expertise had been acquired over an eleven year period as an American Can employee. His employment required that he lecture regularly on can design to industry representatives, and he had participated regularly in providing supervision so that American Can engineers would design containers with due regard for preservation of the contents, as well as for safety and ease in opening. His knowledge and experience were such that he could properly testify as an expert on the design and use of cans.

Appellants argue, also, that the trial court committed error when it refused to instruct the jury, as requested, that the cause of the injury was the failure of the can to open as intended and that there was no evidence of any “secondary cause.” We disagree. The cause of the laceration was in dispute; and the trial court correctly instructed the jury on this issue. Appellants’ requested instruction would in effect have nullified these instructions and directed the jury to find in favor of the plaintiffs. The court did not err by refusing to charge as requested.

Appellants also contend that it was error to instruct the jury that there was an issue of fault which required determination. Specifically, the court told the jury it was American Can’s contention “that Mrs. Gottfried invited or courted disaster when she didn’t even look at the can when she opened it, that if the can had been opened properly there would have been no harm come to her, and that, therefore, it was her fault, not the fault of the can company in the sense that the product was not defective.” This was merely a summary of American Can’s defense. When we read the charge as a whole, as we are required to do, it becomes eminently clear that the court did not introduce negligence concepts into the jury’s deliberations. Contrary to appellants’ contention, fault, in the sense of misuse of a product, has not been removed from products liability cases by the adoption of strict liability concepts under the Restatement (Second) of Torts § 402A. See: Bartkewich v. Billinger, supra; Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966). Accord: Davis v. R.H. Dwyer Industries, Inc., supra; Decorative Precast Stone Erectors, Inc. v. Bucyrus-Erie Co., 493 F.Supp. 555 (W.D.Pa.1980), aff'd mem., sub nom. Bucyrus-Erie Co. v. Jones & Laughlin Steel Corp., 642 F.2d 440 & 642 F.2d 441 (3 Cir.1981). See generally: Anno., Products Liability: Contributory Negligence or Assumption of Risk as Defense under Doctrine of Strict Liability in Tort, 46 A.L.R.3d 240, §§ 5, 9a, 9b (1972).

The issues in this case were well tried and were submitted to the jury on proper instructions pertaining to the law of strict liability. Whether the laceration of Mrs. Gottfried’s hand was caused by a defective container or by her own mishandling of the can during and after the partial opening thereof were issues for the jury. Its finding that she mishandled the container will not be disturbed on appeal.

Judgment affirmed.

      . The complaint filed by Sonia Gottfried and Leonard, her husband, named as defendants, in addition to American Can Company, the Rite-Aid Corporation, which sold the can of nuts, and Standard Brands, Inc., the parent company of Planters, who used the can to package its product. Rite-Aid Corporation and Standard Brands, Inc. were dropped as party defendants by stipulation prior to trial, and the action proceeded against American Can alone.

      . The complaint also contained an averment of breach of warranty. At trial, the plaintiffs relied solely on theories of strict liability for an allegedly defective product.


text:
    489 A.2d 228
    COMMONWEALTH of Pennsylvania, Appellee, v. Richard YACOUBIAN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 9, 1984.
    Filed March 1, 1985.

      Michael F. X. Coll, Media, for appellant.

      Helen T. Kane, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

Richard Yacoubian, alleged to be the leader of a burglary and drug ring in Upper Darby, Delaware County, was found guilty by a jury of seven counts of theft by receiving stolen property, possession and possession with intent to make delivery of controlled substances, corrupt organizations, and eight counts of criminal conspiracy. On direct appeal, he argues (1) that he was incorrectly found guilty of violating the corrupt organizations statute; (2) that incriminating evidence should have been suppressed because the search warrant pursuant to which the evidence was seized had not been issued upon probable cause and also because the search conducted by police exceeded the authority granted by the warrant; (3) that the court committed trial error; and (4) that the sentence was excessive. Our review discloses only a sentencing error. This requires a remand for resentencing.

The Corrupt Organizations section of the Crimes Code, appearing at 18 Pa.C.S. § 911, proscribes in subsection (b) the following activities:

(1) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity in which such person participated as a principal, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in the acquisition of any interest in, or the establishment or operation of, any enterprise: Provided, however, That a purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issue held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern of racketeering activity after such purchase, do not amount in the aggregate to 1% of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer: Provided, further, That if, in any proceeding involving an alleged investment in violation of this subsection, it is established that over half of the defendant’s aggregate income for a period of two or more years immediately preceding such investment was derived from a pattern of racketeering activity, a rebuttable presumption shall arise that such investment included income derived from such pattern of racketeering activity.
(2) It shall be unlawful for any person through a pattern of racketeering activity to acquire or maintain, directly or indirectly, any interest in or control of any enterprise.
(3) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.
(4) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (1), (2) or (3) of this subsection.

The term “enterprise” is defined in subsection (h)(3) as “any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity, engaged in commerce.” This legislatively created offense is based upon Chapter 96 of Title 18 of the United States Code, 18 U.S.C. §§ 1961-1968, entitled Racketeer Influenced and Corrupt Organizations (RICO).

Appellant argues that the Pennsylvania statute was intended to protect legitimate business enterprises from infiltration by racketeers and did not create a separate criminal offense for participating in an association performing only illegal acts. A similar argument was advanced with respect to RICO and rejected by the Supreme Court in United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). Looking to the express language of RICO, the Supreme Court found that the term “enterprise” was unrestricted and, therefore, broad enough to include both legitimate and illegitimate enterprises.

In determining the scope of the Pennsylvania statute, we also look to the language of the statute. When we do this, we find, as with RICO, that the term “enterprise” is unrestricted and sufficiently broad to include both legitimate and illegitimate enterprises. Appellant argues, however, that the preamble to the Pennsylvania statute suggests that the legislature was primarily concerned with infiltration of legitimate businesses by organized crime. This is undoubtedly correct. However, nothing in the preamble requires the restricted scope of the statute advocated by appellant. Neither the preamble nor the express language of the statute prevents its proscription from reaching enterprises organized and existing for illegal purposes. “Accepting that the primary purpose of [18 Pa.C.S. § 911] is to cope with the infiltration of legitimate businesses, applying the statute in accordance with its terms, so as to reach criminal enterprises, would seek to deal with the problem at its very source.” United States v. Turkette, supra, 452 U.S. at 591, 101 S.Ct. at 2533, 69 L.Ed.2d at 260. The recognized sources in many instances are, as here, the fencing of stolen property and the illicit distribution of drugs.

Although theft by receiving stolen property and unauthorized drug distributions are made criminal by other statutory provisions, the corrupt organizations section of the Crimes Code is not superfluous. This section enables law enforcement to reach the criminal enterprise which has no legitimate dimension or has yet to achieve one. To prove a violation of the corrupt organizations provision, the Commonwealth must prove more than the commission of a crime. It must also prove an enterprise. Thus, the Commonwealth was required to show in the instant case that the fencing of stolen property was the work of a group of individuals acting together, or an association, whose purpose was to engage in the commerce of selling stolen goods.

The evidence in this case tended to show that appellant had been head of a ring of burglars engaged in stealing silver from residences and synagogues in eastern Pennsylvania and western New Jersey. Persons who had participated in such burglaries and who testified under grants of immunity or pursuant to plea bargains testified that the stolen silver and other goods had been delivered to appellant who sold the same in altered form to silver dealers. He paid the men who stole the silver in cash or drugs when they needed it and kept a tally book in which credits and debits were shown. There was also testimony that on some occasions appellant would himself designate the places and times when burglaries were to be committed and would select the person or persons to commit the crimes. There was also evidence that appellant had been engaged in selling illegal drugs from a dry cleaning establishment which he owned. The evidence demonstrated, when considered in toto, a racketeering enterprise in violation of the section proscribing corrupt organizations.

A search at the Lansdowne Cleaners, owned by Yacoubian in Upper Darby, had produced various items of stolen property. Appellant argues that there was no probable cause for the search warrant and that the warrant, which had been issued for drugs, did not authorize the seizure of stolen property. The affidavit established the following facts:

On or about January 29th, 1981 and February 4th, 1981, Affiant Rudy D’Alesio was told by a confidential and reliable informant who has given information in the past that has led to the arrest of four (4) individuals for violation of the controlled substance, drug, device and cosmetics act, that he, the confidential informant bought illegal drugs from Richard Yacoubian at Lansdowne Tailors, 267 Wycombe Avenue, Upper Darby, Pennsylvania for the past five (5) years. On or about February 26th, 1981 this confidential informant advised affiant Detective Edward Crawford that he went into the Lansdowne Cleaners, 267 Wycombe Avenue, Upper Darby, Pennsylvania and spoke with Richard Yacoubian regarding buying marijuana. Richard Yacoubian told this informant that he Richard Yacoubian did not have any marijuana at the time but to check back later. On March 27th, 1981, this confidential informant went to the Lansdowne Cleaners, 267 Wycombe Avenue, Upper Darby, Pennsylvania and bought eleven (11) black capsules for thirty ($30.00) dollars from Richard Yacoubian who told the informant the capsules were speed.
On April 6th, 1981 at about 2:15 p.m., officer William Johnson observed two (2) white females park in front of the Lansdowne Cleaners in a black pickup truck and one white female now known to be Elizabeth Jordon enter the Lansdowne Cleaners carrying a denim jacket on her arm. He then observed the same female leave the cleaners after staying inside for about two minutes and re-enter the truck. The truck was then observed leaving and was stopped at Marshall Road and Jackson Avenue, by officers Frank Guille and Joseph Holyenek. Found in the blue denim jacket which officer Johnson observed Elizabeth Jordon carry into and out of the Lansdowne Cleaners was one (1) plastic bag containing about thirty (30) grams of a off yellowish powder suspected to be methamphetamine. Also found in this Denim Jacket was one Hypodermic needle. These articles were found by officer Frank Guille.
The operator of the black pickup truck was one Kathy Mullen who stated that she gave Elizabeth Jordon a ride to the Lansdowne Cleaners because Elizabeth Jordon said she wanted to check on some drugs. Also Kathy Mullen stated that after leaving the cleaners Elizabeth Jordon told her that she got the drugs and they had to get out of there because they were going to be photographed by the cops.
Based on the above information these affiants believe that the above stated location and individuals have in their possession illegal drugs and related paraphernalia and there for [sic] request that a search warrant be issued.

Whether one applies the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) or the totality of the circumstances test adopted in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), it is readily apparent that the suppression court correctly concluded that the warrant to search for illegal drugs had been issued upon probable cause. Yacoubian had no expectation of privacy with respect to the truck being driven by Kathy Mullen or the jacket being carried by Elizabeth Jordon. Similarly, he had no interest in the controlled substance whose possession he had surrendered to a third person. Thus, he could not require that the Commonwealth, in order to establish probable cause for believing the substance had originated in his dry cleaning establishment, prove the validity of the police stop of the Mullen vehicle. See: Commonwealth v. Metzger, 295 Pa.Super. 267, 441 A.2d 1225 (1981). Contrary to appellant’s contention, moreover, the reliability of Mullen and Jordon, who had been eyewitnesses to the events narrated to the police and who had made declarations against penal interest, was clearly established. See: Commonwealth v. Moyer, 270 Pa.Super. 393, 411 A.2d 776 (1979).

When the police, in execution of the warrant for controlled substances, came upon silver jewelry, candlesticks and Jewish religious artifacts believed to be stolen, they were not required to ignore them. “Where police have a right to be in the position of observation, they can lawfully seize objects in plain view.” Commonwealth v. Mitchell, 489 Pa. 537, 540, 414 A.2d 1021, 1023 (1980) quoting from Commonwealth v. Harris, 479 Pa. 131, 138, 387 A.2d 869, 873 (1978); Commonwealth v. Millard, 273 Pa.Super. 523, 528, 417 A.2d 1171, 1174 (1979); Commonwealth v. Casuccio, 308 Pa.Super. 450, 468, 454 A.2d 621, 630-631 (1982). The incriminating character of the evidence, however, must be apparent. We agree with the trial court that the contraband in this case was properly seized. The police were lawfully on the premises and the suspicious secreting of silver and other items throughout the cleaning establishment, combined with the officer’s knowledge of recently stolen property and Yacoubian’s reputation as a fence, supported the officer’s conclusion that the items were contraband. Commonwealth v. Millard, supra; Commonwealth v. Cascuccio, supra.

Appellant next complains because the Commonwealth introduced evidence of burglaries committed at the Suburban Jewish Community Center, Temple Sholom and Kenneth Clay residence which it failed to connect by evidence with appellant. To prove appellant’s role in an alleged burglary ring, the Commonwealth relied upon the testimony of accomplices. It is correct, as appellant avers, that their testimonies did not connect appellant with the burglaries at the Jewish Temple and Community Center and that the testimony connecting him with the Clay burglary was hypothetical. The trial court denied a defense motion for mistrial on this ground, but instructed the jury that the evidence failed to show that appellant had been involved in these burglaries and that the evidence of such burglaries, therefore, was irrelevant and should be ignored.

The decision whether to declare a mistrial is within the discretion of the trial court, and its decision will not be reversed in the absence of a flagrant abuse thereof. Commonwealth v. Stokes, 279 Pa.Super. 361, 371, 421 A.2d 240, 245 (1980). There was no abuse of discretion in the instant case. This is not a situation in which a defendant was prejudiced by evidence that he had committed crimes unrelated to the offense for which he was being tried; and decisions requiring a mistrial under such circumstances are not apposite. The evidence of burglaries at the Clay residence and at the Temple and Community Center did not prejudice appellant, for there was no evidence that he was in any way involved in them. When the Commonwealth’s proof failed to connect him with these burglaries, appellant was not entitled to a mistrial on other charges then being tried. It was enough that the court gave an unequivocal instruction that the Commonwealth had not shown appellant’s connection with these several offenses and that, consequently, the evidence of such crimes was irrelevant and could not be considered by the jury. It cannot be said, therefore, that appellant was prejudiced by the Commonwealth’s failure to prove all the charges which had been made against appellant.

The final argument to be discussed pertains to the sentence imposed by the court. “The imposition of a sentence is vested in the discretion of the trial court, and [it] will not be disturbed absent a manifest abuse of that discretion.” Commonwealth v. Plank, 498 Pa. 144, 145, 445 A.2d 491, 492 (1982). Accord: Commonwealth v. Russell, 313 Pa.Super. 534, 544, 460 A.2d 316, 322 (1983). “[I]f the sentence imposed is within statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment.” Commonwealth v. Gaus, 300 Pa.Super. 372, 377, 446 A.2d 661, 664 (1982). The record must indicate, however, that the sentencing court was cognizant of and considered the standards set forth in the Sentencing Code, and the reasons for imposing a particular sentence must be articulated. Id. In the instant case, the sentencing court was also required to give consideration to sentencing guidelines. Finally, for purposes of directing restitution, the court was required to determine on the record (1) the amount of loss suffered; (2) that the loss was caused by the defendant; (3) that the award did not exceed the defendant’s ability to pay; and (4) the method of payment best suited to the particular circumstances. Commonwealth v. Walton, 326 Pa.Super. 492, 494, 474 A.2d 348, 349 (1984). Where, as here, a fine was imposed, the record must also disclose (1) the convict’s ability to pay; (2) that the imposition of a fine will not preclude payment of restitution; and (3) the method of payment pertaining to the imposition of a fine. Commonwealth v. Mead, 300 Pa.Super. 510, 514, 446 A.2d 971, 973 (1982); Commonwealth v. Reardon, 297 Pa.Super. 193, 199, 443 A.2d 792, 795 (1981); 42 Pa.C.S. § 9726.

The court properly concluded that appellant could not be sentenced for both conspiracy and corrupt organizations. Both are inchoate offenses. See: 18 Pa.C.S. § 906. The court did impose consecutive sentences of not less than 3V2 nor more than seven years for each of the 7 convictions for theft by receiving stolen property, a consecutive sentence of not less than ten nor more than twenty years for a second offense of possessing a controlled substance with intent to deliver, and a consecutive sentence of not less than ten nor more than twenty years for a corrupt organization. In addition to total incarceration for not less than 44V2 nor more than 89 years, the sentencing court directed appellant to pay fines in the total amount of $145,000.00 and make restitution in the amount of $100,000.00, to be pro-rated among all victims.

The sentences of imprisonment imposed by the court were consistent with the maximum sentences authorized by law. The reasons for the sentences, as given by the court, covered more than five pages of the record and included the court’s conclusion that appellant was the “principal architect and ring leader” of a criminal enterprise which had adversely affected the lives of many people in Delaware County. The total sentence, although severe, was not an abuse of discretion under the circumstances presented to the court.

The sentencing court erred, however, when it imposed a fine which precluded restitution to the victims of appellant’s offenses. The court conceded that the losses caused by appellant’s criminal conduct exceeded the restitution which appellant was ordered to make. It stated that restitution for all such losses would not be ordered because the evidence did not establish that appellant had an ability to make total restitution. The evidence, although vague, demonstrated appellant’s apparent ability to make partial restitution but not total restitution. Under these circumstances, the imposition of fines of $145,000.00 cannot be justified. 42 Pa.C.S. § 9726(c). Rather than merely vacate the fine, we have determined that it would be preferable to remand for resentencing. In this manner the sentencing court will be able to receive additional evidence to assist it in determining the amount of restitution which appellant can reasonably be expected to make.

The judgments of sentence are vacated, and the proceedings are remanded for resentencing consistent with the foregoing opinion. Jurisdiction is not retained.

      . 18 Pa.C.S. § 3925.

      . 35 Pa.S. § 780-113.

      . 18 Pa.C.S. § 911.

      . 18 Pa.C.S. § 903.

      . The totality of the circumstances test has not been adopted by the Supreme Court of Pennsylvania for purposes of interpreting Article I, Section 8 of the Pennsylvania Constitution. See: Commonwealth v. Jones, 506 Pa. 262, 484 A.2d 1383 (1984). The test announced in Illinois v. Gates, however, has been followed by the Superior Court in Commonwealth v. Ensminger, 325 Pa.Super. 376, 473 A.2d 116 (1984) and Commonwealth v. Gray, 322 Pa.Super. 37, 469 A.2d 169 (1984).

      . Appellant’s arguments that hearsay evidence was improperly introduced during his preliminary hearing; that the Commonwealth provided Bill of Particulars was inadequate; that evidence of drug transactions between appellant and a Commonwealth witness were inadmissible because dates were not specific; and that the trial court erred in denying several requested points for charge are lacking in merit. They have been adequately discussed in the opinion of the trial court.

      . 42 Pa.C.S. § 9701 et seq.

      . 204 Pa.Code § 303.1 et seq.

      . The total loss to all victims, according to testimony produced during trial, was $726,000.00.


author: OLSZEWSKI, Judge:

text:
    489 A.2d 235
    COMMONWEALTH of Pennsylvania v. George Michael PEMBERTH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1984.
    Filed March 1, 1985.

      Richard J. Jacobs, Bethlehem, for appellant.
    James M. Connell, Assistant District Attorney, Bethlehem, for Commonwealth, appellee.
    Before SPAETH, President Judge, and OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

Appellant challenges his conviction under 18 Pa.C.S. Sec. 3928, Unauthorized Use of a Motor Vehicle.

We are asked to decide whether a defendant charged only with theft by unlawful taking or disposition, 18 Pa.C.S. Sec. 3921, and receiving stolen property, 18 Pa.C.S. Sec. 3925, can be validly convicted for unauthorized use of a motor vehicle, 18 Pa.C.S. Sec. 3928.

It is well-settled that upon indictment for a particular crime, a defendant may be convicted of a lesser offense included within that crime. Commonwealth v. Soudani, 398 Pa. 546, 159 A.2d 687, cert. denied 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960). The test for whether a given offense is lesser than and included in another asks whether the greater offense “necessarily involves” the lesser. Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941).

The proper subsidiary test for determining whether one offense necessarily involves another, is whether all of the essential elements of the lesser offense are included in the greater. Stated another way, if the essential elements of crime A are also elements of crime B, and if crime A is less culpatory than crime B, then crime A is a lesser-included offense of crime B.

Commonwealth v. Ackerman, 239 Pa.Super. 187, 192, 361 A.2d 746, 748 (1976) (citations omitted).

Applying this analysis to the case at bar, we conclude that neither 18 Pa.C.S. Sec. 3921 nor 18 Pa.C.S. Sec. 3925 necessarily involve the conduct proscribed by 18 Pa.C.S. Sec. 3928, Unauthorized Use of a Motor Vehicle.

Section 3928 defines the offense of unauthorized use: “A person is guilty of a misdemeanor of the second degree if he operates the automobile without consent of the owner.” 18 Pa.C.S. Sec. 3928(a) Receiving stolen property is defined by Section 3925:

A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

18 Pa.C.S. Sec. 3925(a).

This Court in Commonwealth v. Robinson, 317 Pa.Super. 135, 463 A.2d 1121 (1983), distinguished the two as necessarily involving different mental elements. We find an additional distinction. Conviction under Sec. 3928 requires proof of use, more than the showing of possession necessary to sustain a conviction under Sec. 3925. Therefore, the conviction for unauthorized use cannot follow as a “lesser-included” to the charge of receiving stolen property.

With respect to the offense of theft by unlawful taking, Section 3921 provides: “A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.” 18 Pa.C.S. Sec. 3921(a). Appellant contends that the conduct proscribed by Sec. 3921 does not necessarily involve the activity penalized under Sec. 3928. In short, he argues that a person can steal a car without operating it. This Court in Commonwealth v. Nace, 222 Pa.Super. 329, 295 A.2d 87 (1972), admitted that there could be situations in which the allegations made in the indictment, while sufficient for conviction of larceny, would not sustain a conviction for “joy-riding.” A person could push a car, tow the car or receive possession of a previously stolen car, and then exercise control over that car. Because the crime of theft by unlawful taking does not necessarily involve all the essential elements of unauthorized use, we conclude that Sec. 3928 is not a lesser-included offense to Sec. 3921.

Our decision today calls into question the continuing validity of Commonwealth v. Nace, 222 Pa.Super. 329, 295 A.2d 87 (1972). The Court there stated that the operation of a motor vehicle without the knowledge or consent of the owner was a lesser-included offense to larceny of a motor vehicle. Although the statement was dicta, it has been widely cited as law. For that reason we explain why Nace does not control our decision here.

Nace deals with the old “joy-riding” statute, 75 P.S. Sec. 624(5), which made it a crime to “use” as well as to operate another’s motor vehicle without his or her consent. At the time Nace was decided, larceny by motor vehicle was a common law crime. Both the “joy-riding” statute and the common law larceny have been replaced under the Crimes Code by Sec. 3928 and Sec. 3921, respectively. Definition of the offenses under current law is stricter than it was under the antecedent law. As stated above, an actor could conceivably “exercise control” over a vehicle without actually operating it. The distinction is more than metaphysical. Penal statutes by law are to be strictly construed in favor of the defendant. Commonwealth v. Darush, 256 Pa.Super. 344, 389 A.2d 1156 (1978). If a doubt exists, it must be turned to defendant’s advantage.

The Court in Nace admitted, even after finding “joy-riding” a lesser-included offense, that there could be instances where allowing the fact-finder to convict on the lesser-in-eluded offense could prejudice counsel in presentation of a defense. It noted that if counsel were unaware of the possibility of conviction for the lesser-included offense, a violation of due process could result.

At the heart of the issue is notice, a means of assuring the defendant an opportunity to put forth an adequate defense to the charge. Commonwealth v. Gouse, 287 Pa.Super. 120, 429 A.2d 1129 (1981); see Commonwealth v. Stots, 227 Pa.Super. 279, 281 n. 3, 324 A.2d 480, 481 n. 3 (1974) (“whether conviction for a less serious or less culpable offense may lie on an indictment for another more serious or more culpable defense is principally a question of whether the indictment will fairly put the defendant on notice of the charges against him so that he may prepare an adequate defense.”) This end has frequently been achieved in one of two ways: either the Commonwealth will give an accused express notice by charging him with the less culpable offense or it will give him implicit notice through the information where the proven, but uncharged crime is a lesser-included offense of the charged, but unproven, offense. Commonwealth v. Gouse, 287 Pa.Super. at 126, 429 A.2d at 1132.

In the instant case, appellant was not explicitly charged with unauthorized operation. Rather, the charge was given to the jury, at Commonwealth’s request, after appellant had testified. Nor was appellant impliedly put on notice. Unauthorized operation is a separate offense, distinct from the crimes of theft by taking or receiving stolen goods. Commonwealth had the power to charge appellant with the offense of unauthorized operation. It chose not to do so. We are left with no alternative but to discharge the appellant.

The conviction is reversed and the appellant is discharged. Jurisdiction relinquished.

SPAETH, President Judge, concurs in the result.

      . The actual holding in Nace was that the PCHA court had acted improperly in dismissing, without hearing, appellant’s petition.


author: MONTEMURO, Judge:

text:
    489 A.2d 238
    Deborah HOLLAND, Appellant, v. GENERAL ACCIDENT, FIRE AND LIFE ASSURANCE CORPORATION, LTD.
    Superior Court of Pennsylvania.
    Argued July 25, 1984.
    Filed March 1, 1985.

      Marshall E. Kresman, Philadelphia, for appellant.
    David M. McCormick, Philadelphia, for appellee.
    Before CIRILLO, MONTEMURO and CERCONE, JJ.
   MONTEMURO, Judge:

On February 2, 1983, the Honorable Ethan Allen Doty, of the Court of Common Pleas of Philadelphia County, granted appellee’s, General Accident Fire and Life Assurance Corporation, Ltd.’s, motion for summary judgment. This appeal followed.

The sole issue before us is whether appellant’s action against appellee, the assigned servicing carrier under the Pennsylvania Assigned Claims Plan [PACP], for “uninsured motorist benefits” is barred by the applicable statute of limitations.

The undisputed facts are as follows: On November 6, 1976, appellant was injured in an automobile accident while riding as a passenger in an automobile owned and operated by Richard Shapiro. Neither Shapiro nor appellant were covered by an applicable automobile insurance policy. On July 23, 1977, appellant filed an application for “basic loss benefits” pursuant to the PACP and, on May 9, 1978, appellee made payment to appellant in the amount of $14,-429.27. This payment was the final payment made to appellant with regard to the injuries she allegedly suffered in the November 6, 1976 accident. Following a denial of appellant’s request for uninsured motorist benefits, appellant instituted the instant action against appellee on April 21, 1982.

Appellant’s claim for uninsured motorist coverage is founded upon our supreme court’s opinion in Tubner v. State Farm Mutual Automobile Insurance Company, 496 Pa. 215, 436 A.2d 621 (1981). In Tubner, the court held that a company assigned to provide insurance coverage pursuant to the PACP is required to pay not only basic loss benefits, but also uninsured motorist benefits. The Tubner court reasoned,

Because assigned insurers are obligated precisely as if they had issued basic loss insurance policies, and because every policy of basic loss insurance issued in Pennsylvania must include uninsured motorist coverage, the right to uninsured motorist benefits under the assigned claims plan follows a fortiori from a straightforward reading of the statute and the legislation lawfully promulgated thereunder.

Id., 496 Pa. at 219-220, 436 A.2d at 623 (emphasis in original).

In Lewis v. General Accident Group, 336 Pa.Super. 373, 485 A.2d 1128 (1984), this court posited,

The Tubner court found the right to uninsured motorist benefits a corollary to the right to basic loss benefits.... Consistent with the Tubner court’s reasoning, we find ‘basic loss and uninsured motorist benefits’ wherever the statute reads ‘basic loss benefits.’ Section 108 [PACP], by reference to Section 106 [(c), relating to time limitations on actions for no-fault benefits], provides the applicable statute of limitations. 40 P.S. §§ 1009.106, 1009.-108.

Id., 336 Pa.Superior Ct. at 376, 485 A.2d at 1129.

In finding that the claim for uninsured motorist coverage, presented to us in Lewis, was barred by a four-year limitation on actions, this court relied on our earlier opinion in Warren v. Reliance Insurance Company, 318 Pa.Super. 1, 464 A.2d 487 (1983) (en banc). In Warren, we held that a claim, timely filed with the Assigned Claims Bureau, entitles the claimant to written notification of rejection by the assigned obligor and then to at least sixty days in which to file an action. Significantly, we further held, however, that in any event a claimant must bring the action for benefits within four years of the accident.

Based upon the facts before us in Lewis, we found our Warren decision to be controlling. However, the four-year limitation upon actions for benefits under the PACP, announced in Warren and applied to an uninsured motorist claim in Lewis, is expressly limited in its application to only those actions initiated by claimants who have not already received benefits. See Warren, supra, 318 Pa.Super. at 6-7, 6-7 n. 5, 464 A.2d at 490, 490 n. 5.

Section 106(c)(1) states, in pertinent part:
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.

40 P.S. 1009.106(c)(1).

Appellant herein applied for basic loss benefits on July 23, 1977 and received $14,429.27 as satisfaction of her claim on May 9, 1978. It is clear from the record before us that this was the last payment of benefits made to appellant prior to her commencement of the instant action for further benefits on April 21, 1982. In order for the instant action to have not been barred by the applicable statute of limitations, it must have been commenced within the two year period following May 9, 1978. Clearly it was not.

Mindful of the pertinent standards and scope of our review of the entry of a summary judgment, see Just v. Son’s of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308 (1976), we affirm the lower court’s order granting appellee’s motion for summary judgment on the basis of the foregoing discussion.

Order affirmed.

      . PACP is contained in section 108 of the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, art. I, § 101, et seq., 40 P.S. § 1009.101, et seq.

      . We note that this court has recently ruled that the Tubner decision applies retroactively. Lewis v. General Accident Group, 336 Pa.Superior Ct. 373, 376, 485 A.2d 1128, 1129 (1984) ("As a rule, a court’s interpretation of a statute is considered to have been law from the date of the statute’s enactment”).

      . Despite appellant’s arguments to the contrary, we expressly decline to apply to the case sub judice the six-year statute of limitations for actions based on contract, which this court has found applicable to policyholder actions under uninsured motorist coverage endorsements in written contracts of insurance. See Boyle v. State Farm Mutual Automobile Insurance Company, 310 Pa.Super. 10, 456 A.2d 156 (1983). We note that we find the holdings of this court in Boyle regarding the applicable statute of limitations and regarding the date from which that period of limitation runs to be inapposite for the following reasons: (1) the Boyle decision was based on pre-No-fault Act law; (2) the action at issue in Boyle was essentially an action for enforcement of a contract; and, most significantly, (3) this court in Lewis found the limitations set forth in section 106(c) of the No-fault Act to be applicable to claims for uninsured motorist coverage brought pursuant to the PACP.


author: JOHNSON, Judge:

text:
    489 A.2d 240
    Edmund VIADOCK, Guardian of the Estate of Beverly Ann Viadock, Incompetent; Edmund Viadock, Parent and Natural Guardian of Shawn Viadock and Scott Viadock, Minors; and Edmund Viadock, In His Own Right v. NESBITT MEMORIAL HOSPITAL, Wilkes-Barre General Hospital, Victor T. Ambruso, M.D., Samuel Mackall, M.D., and John Doe, M.D. William H. BOYLE, Gordon H. Earles, M.D., Bernard Holleran, M.D., Jacob G. Hyman, M.D., Albert J. Klem, M.D., A.A. Mascali, M.D., Robert H. Peters, M.D., Shishir C. Prasad, M.D., N-7, Fernando Araya, M.D., Craig D. Aicher, M.D. Appeal of PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1984.
    Filed March 1, 1985.

      Bradford Dorrance, Harrisburg, for appellant.
    Paul J. Drucker, Philadelphia, for Viadock, appellees.
    Before CAVANAUGH, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

This case comes before us on appeal from an Order denying Appellant, the Pennsylvania Department of Public Welfare (the Department), the right to intervene in a suit claiming damages arising from alleged medical malpractice.

Beverly Ann Viadock, the plaintiff in the instant case, became ill in September of 1978, thereby incurring substantial medical bills. In August of 1980, before the Arbitration Panel for Health Care, plaintiff instituted suit against two hospitals and twelve physicians for injuries incurred as a result of their alleged malpractice. In December of 1980, plaintiff transferred the case to the Court of Common Pleas of Luzerne County.

The Department, which had paid plaintiffs medical expenses and had provided funds to the plaintiffs family during the pendency of the action, sought to intervene in order to recover the monies which had been expended on behalf of plaintiff and her family.

The trial court recognized that, as a general proposition of law, the Department has a right to be reimbursed for public assistance payments from certain types of assets owned by a recipient and by his or her spouse and unemancipated minor children, Section 4(a) of The Support Law, and that the Department’s regulations specifically include a personal injury claim as one of the assets available for such purpose. Shearer v. Moore, 277 Pa.Super. 70, 419 A.2d 665 (1980); 55 Pa.Code § 257.28(c).

Any public body or public agency may sue the owner of such property directly for monies so expended, 62 P.S. § 1974(a), or may sue for and recover from third parties any sum of money due such person. 62 P.S. § 1975(a). If the amount due shall have been reduced to judgment, the public body or public agency may be substituted as plaintiff in the judgment and, if the sum due is founded on an order or decree of court, the public body or public agency shall have the right to recover the same. 62 P.S. § 1975(b).

In 1980, the legislature enacted the Fraud and Abuse Control Act, Section 1409(b)(1) of which provides, in pertinent part:

§ 1409. Third Party Liability
(b)(1) When benefits are provided or will be provided to a beneficiary under this section because of an injury for which another person is liable, or for which an insurer is liable in accordance with the provisions of any policy of insurance issued pursuant to Pennsylvania insurance laws and related statutes the department shall have the right to recover from such person or insurer the reasonable value of benefits so provided. (Emphasis added.)

The trial court, when confronted with the issue of the Department’s right to intervene, considered whether the above-cited case law and statutory provisions were applicable to the case before it. Conceding that the provisions of the Fraud and Abuse Control Act would seem to mandate that intervention be allowed in all actions against a third party for recovery of damages by a recipient of public assistance, the trial court, relying upon the Allegheny County Court of Common Pleas decision in Chiesa v. Fetchko, 9 P.L.J. 363 (1982), denied intervention. Applying the rationale of Chiesa to the facts before it, the trial court in the instant case held that under Section 602, part of the arbitration process under the Health Care Service Malpractice Act (HCSMA), intervention by the Department as a subrogee was precluded. 40 P.S. § 1301.602 provides:

Section 1301.602. Reduction of award by other benefits
The loss and damages awarded under this act shall be reduced by any public collateral source of compensation or benefits. A right of subrogation is not enforceable against any benefit or compensation awarded under this act or against any health care provider or its liability insurer.

On appeal the Department contends, as it did below, that there is an irreconcilable conflict between the applicable provisions of the Fraud and Abuse Control Act and the HCSMA — that the Fraud and Abuse Control Act, having been enacted subsequent to the HCSMA, must be deemed to prevail over the conflicting anti-subrogation provision in the HCSMA. Inasmuch as the arbitration process in the area of medical malpractice has recently been declared unconstitutional, however, Section 602 of the HCSMA is no longer viable. See Chiesa v. Fetchko, 504 Pa. 503, 475 A.2d 740 (1984); Heller v. Frankston, 504 Pa. 528, 475 A.2d 1291 (1984); Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980). Hence, Sections 1974 and 1975 of The Support Law and Section 1409 of the Fraud and Abuse Control Act are controlling.

The question of intervention is a matter within the sound discretion of the court below and unless there is a manifest abuse of such discretion, its exercise will not be disturbed upon review. Darlington v. Reilly, 363 Pa. 72, 69 A.2d 84 (1949); Harrington v. Philadelphia City Employees Federal Credit Union, 243 Pa.Super. 33, 364 A.2d 435 (1976); 16 Standard Pennsylvania Prac. § 91:53. The trial court indicated that were it not for Section 602’s prohibition of the enforceability of the right of subrogation, intervention would seem to be mandated under the Fraud and Abuse Control Act. In its disposition of the Department’s petition to intervene, however, the trial court relied upon the applicability of Section 602 and, therefore, never considered the averments in the petition respecting the right to intervene pursuant to The Support Law, the Fraud and Abuse Control Act, and Pa.R.C.P. 2327. We therefore vacate the Order of November 16, 1982, and remand for proceedings not inconsistent with this opinion.

We note additionally that Section 1409(b)(9) of the Fraud and Abuse Control Act provides:

No judgment, award, or settlement in any action or claim by a beneficiary to recover damages for injuries, where the department has an interest, shall be satisfied without first giving the department notice and an opportunity to perfect and satisfy his [sic] lien.

After argument, but prior to the trial court’s subsequent denial of the Department’s petition to intervene, the court approved a compromise agreement which plaintiff had reached with defendants. The Department was neither notified of, nor made a party to, the settlement agreement.

Irrespective of the issue of the Department’s right to intervene in any particular case we are satisfied that, where the Department has an interest, Section 1409(b)(9) requires that the Department be given notice and an opportunity to perfect and satisfy its lien prior to satisfaction of the judgment, award or settlement. Hence, in the instant case, Appellant should have been notified that a settlement agreement had been reached among the parties.

Order vacated and case remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . Cash and medical assistance benefits are included within the general statutory definition of public assistance. 62 P.S. § 402.

      . Act of June 24, 1937, P.L. 2045, § 4, os amended, Act of June 9, 1939, P.L. 310, § 1; Act of September 26, 1951, P.L. 1455, § 2; Act of June 19, 1961, P.L. 475, § 1; Act of August 22, 1961, P.L. 1029, § 2; Act of July 26, 1963, P.L. 318, § 1; Act of August 13, 1963, P.L. 682, § 1, 62 P.S. § 1974(a).

      . Act of June 13, 1967, P.L. 31, No. 21, as amended, Act of July 10, 1980, P.L. 493, No. 105, § 3, 62 P.S. § 1401 et seq.

      . Act of October 15, 1975, P.L. 390, No. Ill, 40 P.S. § 1301.101 et seq.

      . Subsequent to the decision of the trial court in the instant case, however, Chiesa v. Fetchko, 9 P.L.J. 363 (1982) was expressly overruled by this Court in Chiesa v. Fetchko, 318 Pa.Super. 188, 464 A.2d 1293 (1983), aff’d on other grounds, 504 Pa. 503, 475 A.2d 740 (1984).

      . Rule 2327. Who May Intervene
      At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if

        (1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or
      (2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or
      (3) such person could have joined as an original party in the action or could have been joined therein; or
      (4) the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.


author: HOFFMAN, Judge:

text:
    489 A.2d 243
    Robert Ellis BURTON v. John E. BOLAND, Individually and trading as Condominium Development Corporation, d/b/a Hill Cafe Apartments, also trading as Winters-Boland Agency, 4401 Linglestown Rd., Harrisburg, PA. Appeal of CONDOMINIUM DEVELOPMENT CORPORATION.
    Superior Court of Pennsylvania.
    Submitted Aug. 14, 1984.
    Filed March 1, 1985.

      Roger M. Simon, Harrisburg, for appellant.
    William J. Fulton, Harrisburg, for appellee.
    Before WICKERSHAM, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in granting a new trial. We agree and, accordingly, reverse.

Between January and April, 1978, appellant, John Boland, and appellee, Robert Burton, an architect, met several times to discuss the renovation of a piece of property owned by Condominium Development Corporation, a corporation owned by appellant and his wife. Appellee agreed to perform certain services in order to prepare for the renovations. When his bills for those services were not paid, appellee brought this action in assumpsit against Condominium Development Corporation and appellant, individually, for $4,894.05. Following a trial on December 5 and 6, 1979, a jury returned a verdict for appellee against Condominium Development Corporation in the amount of $2,500. . On December 17, 1979, appellee filed a motion for a new trial. On June 13, 1983, the lower court granted that motion, finding that (1) appellant had not disclosed that he was acting as an agent for Condominium Development Corporation when appellee was hired and therefore appellant was personally liable, and (2) Condominium Development Corporation was a “shell” and therefore the corporate entity should be disregarded in the interest of justice. This appeal followed.

While the grant of a new trial is within the sound discretion of the trial judge, that discretion is not absolute; an appellate court will review the action of the court below and reverse if it determines that the court below acted capriciously or palpably abused its discretion. Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123, 124 (1969); Cianci v. Burwell, 299 Pa.Superior Ct. 387, 390, 445 A.2d 809, 810 (1982); Bertab, Inc. v. Fox, 275 Pa.Superior Ct. 76, 79, 418 A.2d 618, 620 (1980).

A trial judge will be held to have abused his discretion when he grants a new trial merely because he would have arrived at a different conclusion on the facts of the case than that reached by the jury. Austin v. Ridge, supra; see Carroll v. Pittsburgh, 368 Pa. 436, 445-46, 84 A.2d 505, 509 (1951); ____ Thus a trial judge should only grant a new trial when the jury’s verdict is so contrary to the evidence as to shock his sense of justice and a new trial is necessary to rectify the situation. Austin v. Ridge, supra; Ditz v. Marshall, 259 Pa.Super. 31, 393 A.2d 701 (1978). In reviewing the grant of a new trial, the appellate court looks to all of the evidence. Ditz v. Marshall, supra.

Bertab, Inc. v. Fox, supra, 275 Pa.Superior Ct. at 79, 418 A.2d at 620 (citation omitted).

Here, the court below correctly stated the law when it held that an agent who enters into a contract without disclosing that he is acting for a principal is personally liable on the contract. See Revere Press v. Blumberg, 431 Pa. 370, 246 A.2d 407 (1968); Dwyer v. Rothman, 288 Pa.Superior Ct. 256, 431 A.2d 1035 (1981). However, we disagree with the finding of the court below that “no such disclosure had been made.” (Lower Court Opinion at 5).

At trial, appellee testified that appellant had not disclosed his agency when appellee agreed to perform the services, and that he had always dealt with appellant as an individual. (N.T. December 5, 1979 at 33, 35). He said that he was unaware of the existence of Condominium Development Corporation until August, 1978 when appellant requested that appellee send his bills to the corporation (Id. at 28, 63). He also testified that he did not become fully aware that appellant claimed to be acting on behalf of Condominium Development Corporation until he received a letter from appellant on corporate stationary in December, 1978 in which appellant said that the corporation might be unable to pay appellee’s bills. (Id. at 31-32).

Appellant, on the other hand, testified that he had disclosed that Condominium Development Corporation owned the property being renovated when he and appellee first met to discuss the project. (Id. at 69-70). He also introduced into evidence two letters addressed to appellee and signed by appellant as president of Condominium Development Corporation. The first, dated March 10, 1978, authorized appellee to begin working on a survey of the project. (Id. at 77). The second letter, dated May 14, 1978, requested appellee to change the mailing address for Condominium Development Corporation. (Id. at 80). Although appellant’s secretary testified that she typed and mailed both letters, N.T. December 6, 1978 at 130-32, appellee denied having received them. (N.T. December 5, 1978 at 41-42). Appellee did admit that he received a copy of the deed to the property, although he denied that it disclosed the owner’s identity. (Id. at 62-63). Appellant, however, introduced into evidence a copy of the deed listing Condominium Development Corporation as the owner. (N.T. December 6, 1978 at 128-29).

In order to find that Condominium Development Corporation was solely liable to appellee, the jury must have believed appellant’s assertion that he had disclosed his agency. We find that this result was supported by the evidence and did not warrant the grant of a new trial.

The court below also found that Condominium Development Corporation was a “shell” and should therefore be disregarded in the interest of justice. (Lower Court Opinion at 6).

The law is well settled in this Commonwealth as to when the corporate existence may be denied. As this court held in Sams v. Redevelopment Authority, 431 Pa. 240, 244, 244 A.2d 779, 781 (1968): “The. corporate entity or personality will be disregarded only when the entity is used to defeat public convenience, justify wrong, protect fraud or defend crime. ...
“In applying this test, however, any court must start from the general rule that the corporate entity should be recognized and upheld unless specific, unusual circumstances call for an exception____ Care should be taken on all occasions to avoid making ‘the entire theory of the corporate entity * * * useless.’ ” Zubik v. Zubik, 384 F.2d 267, 273 (3d Cir.1967) (citations omitted).

Wedner Unemployment Compensation Case, 449 Pa. 460, 464, 296 A.2d 792, 794-95 (1972) (citations omitted). Furthermore, “[e]ven when a corporation is owned by one person or family, the corporate form shields the individual members of the corporation from personal liability and will be disregarded only when it is abused to permit perpetration of a fraud or other illegality.” Kellytown Co. v. Williams, 284 Pa.Superior Ct. 613, 623, 426 A.2d 663, 668 (1981); see also Barium Steel Corp. v. Wiley, 379 Pa. 38, 47, 108 A.2d 336, 341 (1954). Here, no fraud or illegality has been alleged, and we therefore find that the court below abused its discretion in disregarding the corporate entity.

For the foregoing reasons, the order of the court below granting a new trial is reversed.

Reversed.

       This conclusion is buttressed by the fact that the jury awarded appellee only $2,500 rather than the $4,898.05 he had requested, apparently relying upon appellant’s testimony that he had only agreed to pay appellee $2,000 to $2,500 for his services. Thus, the jury appears to have found appellant’s evidence more credible than appellee’s throughout the trial.


author: PER CURIAM:

text:
    489 A.2d 246
    FRANKLIN DECORATORS, INCORPORATED, Appellant, v. HENDE-JON FURNITURE SHOWROOMS, INCORPORATED.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1984.
    Filed March 1, 1985.

      W. Thomas Laffey, Jr., Pittsburgh, for appellant.
    Neal Brendel, Pittsburgh, for appellee.
    Before BROSKY, ROWLEY and JOHNSON, JJ.
   PER CURIAM:

This case comes before us on appeal from an Order denying a request by Plaintiff, Franklin Decorators, Inc., for preliminary injunctive relief. We affirm.

The facts, as set forth by the trial court, are as follows:

Plaintiff-lessee Franklin Decorators, a corporation, filed a complaint in equity and for declaratory relief against defendant-lessor Hende-Jon Furniture Showrooms, a corporation, alleging various violations by the defendant of the terms of a lease agreement for commercial space, which was executed by the parties on May 22, 1978. The lease agreement, effective August 1, 1978 through July 31, 1983, states, as herein relevant, that the lessor agrees to provide heat between October 1st and May 31st; and that the lessor will invoice the lessee for its share of increases from the year 1978 in the cost of utilities assessments, real estate taxes, elevator maintenance and rubbish removal. On April 14, 1981, the parties signed an addendum to the lease by which Hende-Jon agreed to lease additional space to Franklin.
The complaint alleges that the defendant has failed to provide adequate ventilation; that the indoor temperature has reached 80°-90° on occasion; that a bathroom exhaust fan is inoperable; that the defendant has failed to clean the bathroom; and that the defendant has turned lights out in portions of the building to which the plaintiff had access. The plaintiff asserts that its business has been hindered and that it has chosen to withhold rental payments as a result of the foregoing. By letter, dated April 13, 1983, the defendant notified the plaintiff that it was in default of the rental payment due April 1, 1983. The letter also stated that Franklin was delinquent in the payment of utility surcharges and operating expenses as required under the lease. Hende-Jon indicated that it would “... exercise all available remedies under the lease as necessary to protect its interest” unless full payment was made. The plaintiff has possession of the leased property.
Appellant raises two issues on appeal:
1. Whether Plaintiff had an adequate remedy at law when it had alleged a breach by the Defendant/lessor of the Covenant of Quiet Enjoyment under its lease, and [would suffer] irreparable harm if the Defendant was not enjoined from confessing judgment or utilizing options under the lease if rent was not paid including termination of the lease?
2. Whether Plaintiff was entitled to a hearing on its Request for a Preliminary Injunction?

There is no absolute duty on the court to grant an evidentiary hearing on an application for a preliminary injunction; it is a matter for the discretion of the trial court, but a refusal to grant a hearing will be reversed where it is an abuse of discretion. 15 Standard Pennsylvania Prac.2d § 83:161. See also Commonwealth v. Schall, 6 Pa. Commw. 578, 297 A.2d 190 (1972). The scope of appellate review of a refusal to enter a preliminary injunction is limited to determining if there are any reasonable grounds for the action of the lower court. See Hospital Association of Pennsylvania v. Commonwealth of Pennsylvania Department of Public Welfare, 495 Pa. 225, 433 A.2d 450 (1981); Boyd v. Cooper, 269 Pa.Super. 594, 410 A.2d 860 (1979).

We have carefully reviewed the record and the briefs of the parties, and we agree with the trial court that Appellant has an adequate remedy at law. See Pollock v. Morelli, 245 Pa.Super. 388, 369 A.2d 458 (1976). Accord Checker Oil Co. of Delaware, Inc. v. Harold H. Hogg, Inc., 251 Pa.Super. 351, 380 A.2d 815 (1977). Thus, we do not find that the trial court’s refusal to grant a hearing constitutes an abuse of discretion.

Order affirmed.