author: WIEAND, Judge: POPOVICH, Judge,

text:
    560 A.2d 786
    COMMONWEALTH of Pennsylvania v. TAU KAPPA EPSILON, Appellant. COMMONWEALTH of Pennsylvania v. THETA DELTA CHI, Appellant. COMMONWEALTH of Pennsylvania v. ALPHA EPSILON PI, Appellant. COMMONWEALTH of Pennsylvania v. ALPHA CHI RHO, Appellant. COMMONWEALTH of Pennsylvania v. BETA SIGMA BETA, Appellant. COMMONWEALTH of Pennsylvania v. PHI MU DELTA, Appellant. COMMONWEALTH of Pennsylvania v. PHI KAPPA THETA, Appellant. COMMONWEALTH of Pennsylvania v. PI KAPPA ALPHA, Appellant. COMMONWEALTH of Pennsylvania v. PHI KAPPA TAU, Appellant. COMMONWEALTH of Pennsylvania v. SIGMA PI, Appellant. COMMONWEALTH of Pennsylvania v. ACACIA, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1989.
    Filed June 16, 1989.

      Edward S. Blanarik, Jr., Ambridge, for appellants.
    Mark S. Smith, Assistant District Attorney, Bellefonte, for Com., appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge:

The appellants are eleven fraternities at Penn State University. They were tried by a jury and were found guilty of furnishing beer to minors in violation of section 493(1) of the Liquor Code, Act of April 12, 1951, P.L. 90, art. IY, § 493, as reenacted and amended by the Act of June 29, 1987, P.L. 32, No. 14, § 81, 47 P.S. § 4-493(l). Post-trial motions were dismissed. Thereafter, Tau Kappa Epsilon was sentenced to pay a fine of five hundred ($500) dollars, to perform two hundred (200) hours of charitable service, and was placed on probation for a period of one year. The remaining ten fraternities were sentenced to one year of probation, to pay a fine of two hundred ($200) dollars, and to perform fifty (50) hours of charitable service. On direct appeal from the judgments of sentence, appellants argue (1) that the Commonwealth failed to prove that the beverages served to minors were beer; (2) that the entries by police into the fraternity houses were illegal and that evidence obtained as a result thereof should have been suppressed; and (3) that the trial court should have granted a mistrial because of statements made by the prosecuting attorney during closing argument to the jury. We find no basis for disturbing the jury's verdicts and affirm the judgments of sentence.

As part of a general investigation, Laurie Hazenstab and Ann Henry, members of the State College Bureau of Police Services, made visits to off-campus fraternity houses during October and November, 1986, to determine whether alcoholic beverages were being furnished to minors. While dressed in street clothes they would enter randomly selected fraternity houses at which social functions appeared to be underway. During the course of the investigation they entered twelve fraternity houses, gaining admission by showing an expired Penn State identification card or signing a register. At several houses, admissions were wholly unrestricted. When inside, the officers’ practice was to move toward the bar, where they were served a beverage which looked and tasted like beer and was served from a tap in plastic cups of a type furnished by distributors. Hazenstab and Henry then observed the persons who were being served at the bar. When they observed someone who appeared to be underage, they would keep that person under surveillance until he or she left the fraternity house. One of the officers would then follow, and the other would signal uniformed officers who were waiting outside the house. The suspected minor was then stopped and asked for identification and age. Several minors were convicted or entered pleas of guilty to underage drinking as a result of the investigation, and charges were brought against the twelve fraternities for furnishing beer to minors.

In determining the sufficiency of the evidence to support a finding that the beverages supplied to the minors were beer, we apply the general standard of review and decide

whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[ ] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). See also: Commonwealth v. Sabharwal, 373 Pa.Super. 241, 243, 540 A.2d 957, 958 (1988); Commonwealth v. Quarles, 361 Pa.Super. 272, 280-281, 522 A.2d 579, 583 (1987); Commonwealth v. Morton, 355 Pa.Super. 183, 184, 512 A.2d 1273, 1274 (1986).

Appellants rely on Commonwealth v. Erney, 212 Pa.Super. 174, 239 A.2d 818 (1968), where the Superior Court held that testimony alone of minors that they had been served beer was insufficient to support a conviction under this section. The Court reasoned as follows:

Article IV, § 493(1) of the Liquor Code, Act of April 12, 1951, P.L. 90, Art. IV, § 493, as amended, 47 P.S. § 4-493(1), provides that it shall be unlawful “for any * * person to * * * furnish or give any * * * malt or brewed beverages * * * or to permit any * * * malt or brewed beverages to be * * * furnished or given * * * to any minor * * *.”
Article I, § 102, defines “malt or brewed beverages” as “any beer, lager beer, ale, porter or similar fermented malt beverage containing one-half of one per centum or more of alcohol by volume, by whatever name such beverage may be called.” (Emphasis added.)
The Commonwealth made no effort to prove that the beverage was a “malt or brewed beverage” as defined in the Code, apparently being content to rest on statements by the minors involved that they were served “beer” and that they saw “beer” being served to others.

Id., 212 Pa.Superior Ct. at 176, 239 A.2d at 818-819. But see: Appeal of Charsuner Bar Corp., 68 Pa.Cmwlth. 382, 449 A.2d 106 (1982) (in proceeding to suspend liquor license, testimony of minors that they were served beer, daiquiris and kaluha and cream was sufficient to support finding that licensee served alcoholic beverages to minors in violation of § 493(1) of Liquor Code). Appellants contend, therefore, that the Commonwealth’s evidence was inadequate to establish that the “beer” which they served to minors contained at least one-half of one percent of alcohol by volume.

In this case, however, the Commonwealth did not rely solely on the testimony of the minors. In addition to their testimony that they asked for beer, Officer Hazenstab, who had been served the same beverage, testified that the beverages served by appellants looked and tasted like beer and, in her opinion, were beer. Specifically, Officer Hazenstab testified as follows:

Q Now what would you do with your particular glass of beverage?
A After we observed the — what we suspected of being minors — Officer Henry and I would approach the bar and ask for a beer. We would be. served, and—
Q Did it come out of the same tap as the beer that was served to the minor?
A Yes.
Q Do you want to continue.
A We would request a beer, which we would be served. And we would take a few tastes of it and see what — make sure it was beer.
We would then somewhat follow the suspected minor in the fraternity to — we always maintained an eye shot of the individual. And basically waited until they were ready to leave.
Q Now, just for the sake of detail, would you describe what kind of beverage was coming out of the tap system? What color was it? What did it—
A Okay. I would describe beer as an amber color, light amber color. When poured from a tap system, it produces a white foam on the top of the liquid, on the top of the cup. And they used the almost clear plastic cups that beer distributers [sic] give out whenever a keg is purchased at the distributer [sic]. You can see the liquid in the cup.
Q Have you drank beer before?
A Yes, I have.
Q Roughly over the last few years, you drank beer?
A Yes.
Q And are you familiar with the taste of beer?
A Yes, I am.
Q And what kind of beer would that be? It is near beer or what they call three/two beer or full strength? What kind of beer would you drink?
A The regular type of beer, which isn’t the — I never tasted the three/two beer.
Q You are saying—
A The full strength.
Q And the liquid that you would taste at the fraternities, what did that liquid taste like to you?
A It tasted like what I had tasted in the past as beer.

The witness had tasted beer in the past and was familiar with the taste of beer. She described the appearance and taste of the beverages served by appellants and said that in her opinion they were beer. This was sufficient under the circumstances of this case to establish that the substances being furnished to the minors were also beer. Cf. In re Steerman’s Liquor License, 185 Pa.Super. 214, 138 A.2d 292 (1958) (testimony of police officers that patrons had been served beer established violation of § 493(1) for serving visibly intoxicated persons in a license suspension proceeding); Commonwealth v. Mazarella, 86 Pa.Super. 382 (1926) (in prosecution for possession of intoxicating liquor during prohibition, testimony of two witnesses describing liquid found in defendant’s possession as whiskey was sufficient proof that defendant possessed intoxicating liquor). We find no support in the decided cases for appellants’ contention that the Commonwealth was required to perform a chemical test to establish the exact alcohol content of the beverages which appellants served to minors. See: In re Steerman’s Liquor License, supra (in proceeding for suspension of liquor license for serving visibly intoxicated persons, a chemical analysis is not required in order to prove beverage was intoxicating beverage); Appeal of Charsuner Bar Corp., supra (in proceeding to suspend liquor license for serving minors, Commonwealth not required to offer proof of exact alcoholic content of beverages served in order to meet burden of showing service of alcoholic beverages); Commonwealth v. Zoeller, 15 Adams L.J. 138 (1973) (in prosecution for selling liquor without license, chemical test of alcoholic content of beverages sold not required). We conclude, therefore, that the Commonwealth’s evidence was sufficient to support the jury’s finding that appellants served malt or brewed beverages to minors in violation of section 493(1) of the Liquor Code.

The trial court held that the entries made by Officers Hazenstab and Henry were consensual and did not violate the fraternities’ reasonable expectations of privacy. Although several witnesses said that fraternity parties were private, the ease with which the police officers gained admission belied any expectation of privacy and suggested, rather, that their entrances had been consensual. The observations made thereafter were of events within plain view.

In reviewing the order refusing to suppress the officers’ observations, we

determine whether the factual findings of the lower court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).

Commonwealth v. Chamberlain, 332 Pa.Super. 108, 112, 480 A.2d 1209, 1211 (1984). See also: Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 290 (1976); Commonwealth v. Stark, 363 Pa.Super. 356, 365, 526 A.2d 383, 388 (1987); Commonwealth v. DiNicola, 348 Pa.Super. 405, 409, 502 A.2d 606, 608 (1985).

Our review of the suppression hearing discloses competent evidence to support the court’s finding that the entries of Officers Hazenstab and Henry were consensual. The court’s application of the law thereto was without error.

In Commonwealth v. Weimer, 262 Pa.Super. 69, 396 A.2d 649 (1978), state troopers had gained admission to a private club by ringing a doorbell and being admitted. Although they were questioned at the bar regarding their membership, they were allowed to order and were served drinks. While there, they observed gambling activities which resulted in arrests and prosecution. The Superior Court observed that “opening the door with little regard to the identity of the entrants constitute^] a clear invitation.” Id., 262 Pa. Superior Ct. at 78, 396 A.2d at 653 (footnote omitted). Having permitted entrance, the club had no reasonable expectation that the troopers would not observe the activities then being conducted in plain view on the inside. See also: Commonwealth v. Sweeper, 304 Pa.Super. 537, 450 A.2d 1368 (1982); Commonwealth v. Ginter, 289 Pa.Super. 9, 432 A.2d 1024 (1981); Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); Commonwealth v. Busfield, 242 Pa.Super. 194, 363 A.2d 1227 (1976); Commonwealth v. 9 Mills Mechanical Slot Machines, 62 Pa. Cmwlth. 397, 437 A.2d 67 (1981).

The decision in Commonwealth v. Black, 365 Pa.Super. 502, 530 A.2d 423 (1987), is not apposite. In that case, the right of privacy was premised upon the fact that to gain entrance to the club, one had to enter a vestibule, ring a buzzer, and display membership identification to a doorman. In the instant case, security was so lax as to be virtually non-existent; a person could enter and be furnished beverages. almost at will. Under these circumstances, the fraternities could be found to have consented to the entry of Officers Hazenstab and Henry and to have surrendered any reasonable expectation of privacy with respect to the events occurring in their houses.

Officer Hazenstab testified that her investigation had been prompted by complaints about fraternities in State College involving vandalism and automobile accidents, including a fatal accident involving persons who had been drinking at a fraternity. No objection was made to this testimony. During closing argument, the prosecuting attorney referred to the police investigation and to the testimony about the circumstances which prompted it. Appellants contend that this was improper and that the trial court erred when it denied a defense motion for a mistrial made at the conclusion of the prosecuting attorney’s remarks.

The trial judge, who was present and heard counsel’s remarks, determined that the reference had been based on evidence received and was not harmful. Therefore, he denied the motion for mistrial. We find no abuse of the trial court’s discretion. “[Cjomments by a prosecutor do not constitute reversible error unless the ‘unavoidable effect of such comments [is] to prejudice the jury, forming in their minds fixed bias and hostility toward the defendants] so that they could not weigh the evidence objectively and render a true verdict.’ ” Commonwealth v. Carpenter, 511 Pa. 429, 439, 515 A.2d 531, 536 (1986), quoting Commonwealth v. Anderson, 501 Pa. 275, 282, 461 A.2d 208, 211 (1983). When the remarks of the prosecuting attorney are evaluated in the context in which they occurred, the trial court could conclude, as it did, that appellants were not unfairly prejudiced.

The judgments of sentence are affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I must dissent from the majority’s opinion that the evidence was sufficient to support a finding that the beverage supplied to the minors was beer. Rather, I would find that the evidence presented by the Commonwealth was insufficient to sustain the fraternities’ convictions on the charges of furnishing beer to minors. 47 Pa.S.A. § 4-493(1).

As a result of the instant investigation, several minors were convicted of or entered guilty pleas to underage drinking. At trial, the investigating officers testified that they asked for beer. Officer Hazenstab further testified that she was served a beverage which looked and tasted like beer, and, in her opinion, was beer. The majority ruled: “This was sufficient under the circumstances of this case to establish that the substances being furnished to the minors were also beer.” Majority Op. at 790. I disagree.

Under the Pennsylvania Liquor Code, “beer” has the following very specific definition:

“Malt or Brewed Beverages” means any beer, lager beer, ale, porter or similar fermented malt beverage containing one-half of one per centum or more of alcohol by volume, by whatever name such beverage may be called.

47 Pa.S.A. § 1-102. Definitions.

I equate this case to a criminal action under' the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. S.A. § 780-101 et seq, where the Commonwealth is required to establish the chemical make-up of the controlled substance serving as the basis of the crime. See examples Commonwealth v. Slyman, 334 Pa.Super. 415, 483 A.2d 519 (1984); Commonwealth v. Arenella, 306 Pa.Super. 119, 452 A.2d 243 (1982); Commonwealth v. Albert, 264 Pa.Super. 390, 399 A.2d 1106 (1979). I am convinced that the chemical identity of the beer, as specifically defined by statute, is an element of the crime of serving beer to minors, just as the chemical identity of marijuana is an element of the crime of unauthorized possession of marijuana. No doubt an experienced police officer knows the smell and appearance of marijuana. However, his testimony alone will not establish that the substance is actually marijuana, rather the Commonwealth must submit a chemical analysis identifying the controlled substance. Likewise, the Commonwealth must prove beyond a reasonable doubt that the substance they allege to be beer is actually beer.

Presently, the appellants were convicted of serving beer to minors based solely on lay testimony; no chemical analysis was provided. The majority, citing numerous revocation of liquor license cases, opines such testimony was sufficient. However, I remind the majority that those are civil cases, not criminal actions where the proof must be beyond a reasonable doubt. To be sure, the testimony of the officers was relevant to the question of whether the substance served was, in fact, beer. However, such testimony standing alone should not be allowed to sustain this conviction, especially in light of the fact that a sample of the beer easily could have been seized pursuant to a warrant and then analyzed.

Due process requires that the Commonwealth bear the burden of proving beyond a reasonable doubt each element of the crime charged. If the Commonwealth fails to sustain that burden then the accused must be acquitted. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Commonwealth v. McGuire, 487 Pa. 208, 409 A.2d 313 (1979). I believe that the Commonwealth has failed to sustain this burden since a chemical analysis of the intoxicating liquor was not submitted to the jury. See Commonwealth v. Erney, 212 Pa.Super. 174, 239 A.2d 818 (1968) (“The Commonwealth made no effort to prove that the beverage was a “malt or brewed beverage” as defined in the Code, apparently being content to rest on statements by the minors involved that the were served “beer” and that the saw “beer” being served to others.”) Accordingly, I would reverse the lower court’s denial of the appellants’ motions in arrest of judgment.

      . Specifically, appellants are Tau Kappa Epsilon, Theta Delta Chi, Alpha Epsilon Pi, Alpha Chi Rho, Beta Sigma Beta, Phi Mu Delta, Phi Kappa Theta, Phi Kappa Alpha, Phi Kappa Tau, Sigma Pi, and Acacia. A twelfth fraternity, Sigma Phi Epsilon, was acquitted.

      . This section provides that it is unlawful:
      (1) For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.
      47 P.S. § 4-493(1).

      . Officers Hazenstab and Henry were former Penn State students and displayed expired identification cards when identification was requested.

      . Beer is defined in the Liquor Code as follows:
      “Malt or Brewed Beverages" means any beer, lager beer, ale, porter or similar fermented malt beverage containing one-half of one per centum or more of alcohol by volume, by whatever name such beverage may be called.
      Act of April 12, 1951, P.L. 90, art. I, § 102, as reenacted and amended by the Act of June 29, 1987, P.L. 32, No. 14, § 4, 47 P.S. § 1-102.

      . The motion of defense counsel and the response of the prosecuting attorney were as follows:
      MR. BLANARIK: I object to Mr. Smith’s comments during his closing regarding the vehicular homicide and the fact that there was a death directly related to the fraternities. There was no evidence of that. As the Court is well aware, a question by an attorney is not evidence. It’s the answer to the question. There was a question, but I believe the answer was I don’t know or I wasn’t sure.
      I believe that in this case there was no evidence to submit that. It was used purely to inflame the passions of the jury in this particular case and by virtue of that, is prosecutorial misconduct. On that basis, I would move for a mistrial.
      MR. SMITH: Your Honor, there was testimony by Laurie Hazenstab why this investigation was conducted. She said among other things — she talked about the State College residents’ complaint. She also talked about the fact there had been a vehicular homicide where the driver had been drinking at the fraternity. That is where I am pulling that from to use it in my closing.
      THE COURT: Denied.

      . The sole criminal appellate decision cited by the majority is Commonwealth v. Marabella, 86 Pa.Super. 382 (1926). First, I note this Prohibition case is sixty-three years of age. Second, although no chemical analysis of the liquor was proffered, the court found the evidence was sufficient based on lay testimony of two witnesses and a sample of the contraband whiskey that was available for the jury’s examination. However, instantly, only lay testimony was presented; no sample of beer was preserved, analyzed or presented to the jury for their examination.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    560 A.2d 793
    GRIMME COMBUSTION, INC. v. MERGENTIME CORPORATION and Insurance Company of North America, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1989..
    Filed March 20, 1989.
    Reargument Denied May 30, 1989.

      Carl H. Hanzelik, Philadelphia, for appellants.
    Robert T. Carlton, Jr., Philadelphia, for appellee.
    Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from an Order overruling defendants/appellants’ preliminary objections in the nature of a demurrer and a motion for more specific pleading and which directed appellants to answer the complaint.

This action for breach of contract was brought by appellee, a subcontractor on a contract to provide pressure mortar surfacing in a project to improve a section of the Schuylkill Expressway. Appellant Mergentime Corporation is the general contractor on a contract issued by PennDOT and co-appellant Insurance Company of North America issued payment and performance bonds as Mergentime’s surety. Appellee seeks damages for alleged delays and interferences to its work on the project. Relying on a section of the subcontract between Mergentime and appellee, appellants filed preliminary objections requesting counts two and four of the complaint be dismissed or stayed until disposition of any action Mergentime might initiate against PennDOT before the Board of Claims, which appellants argue has exclusive jurisdiction over claims against Commonwealth agencies arising out of contracts issued by the Commonwealth. Appellants contend the contract clause on which they are relying, dealing with delays and interference, prohibits the subcontractor from recovering damages for delays or interference from the general contractor unless the general contractor has recovered amounts from the owner, namely PennDOT, and then only to the extent of recovery from PennDOT.

As a preliminary matter we must examine the jurisdictional propriety of this appeal. Appellants claim this is an interlocutory appeal as of right pursuant to Pa.R.A.P. 311(a)(4). They argue the trial court’s Order — overruling their preliminary objections requesting either dismissal or a stay of the action until disposition of any future action Mergentime initiates before the Board of Claims — is the equivalent of an Order denying an injunction request. Appellant contends the effect of an Order granting or denying a stay of an action is the same as an Order granting or denying an injunction and is therefore appealable as a matter of right under Pa.R.A.P. 311(a)(4). We disagree and quash this appeal for the following reasons.

It is well-settled that an appeal will lie only from a final Order unless otherwise permitted by statute or rule. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Katz v. Katz, 356 Pa.Super. 461, 514 A.2d 1374 (1986), appeal denied, 515 Pa. 581, 527 A.2d 542 (1987); Indiana County Hospital Authority v. McCarl’s Plumbing and Heating Company, 344 Pa.Super. 226, 496 A.2d 767 (1985). Pennsylvania Rule of Appellate Procedure 311 implements 42 Pa.C.S. § 5105(c), which provides for appeal as of right of certain interlocutory Orders that have a final aspect. Appellant relies upon Pa.R.A.P. 311(a)(4), which provides:

Rule 311. Interlocutory Appeals as of Right
(a) General Rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(4) Injunctions. An order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except for injunctions pursuant to Sections 401(c) and 403(a) of the Divorce Code, Act of April 2, 1980, P.L. 63, 23 P.S. §§ 401(c) and 403(a).

Here, the dismissal of appellants’ preliminary objections neither effectively ends the litigation nor ends the entire case and is, therefore, interlocutory. Appellants reliance on Rule 311(a)(4) concerning appeals as of right from Orders dealing with injunctions is without merit. Subsection (a)(4) makes no mention of a “stay of proceedings” or dismissal of a complaint, which is the relief requested by appellants in their preliminary objections. A “stay of proceedings” is not an “injunction” under the rules of procedure. None of the prerequisites to an injunction set forth in Pa.R.C.P. 1531, such as a written notice or hearing, were ever complied with nor was the trial court requested to make an equitable determination of the necessity of an injunction. Appellate review of an Order dismissing preliminary objections does not lie. Davis v. Supermarkets, Inc. v. United Food and Commercial Workers Local 23, 368 Pa.Super. 290, 533 A.2d 1068 (1987) (citing Ratz v. Ratz, 359 Pa.Super. 8, 518 A.2d 317 (1986)). Rule 311 “is an extraordinary measure which allows an appeal as of right where an appellate court can prevent irreparable harm to a party by reviewing certain interlocutory Orders prior to the ultimate decision of the case.” Beckman v. Abramovitz, 344 Pa.Super. 149, 496 A.2d 53 (1985), appeal dismissed, 512 Pa. 377, 516 A.2d 1386 (1986) (finding a petition to freeze corporate assets could not be characterized as a preliminary injunction within the meaning of Pa.R.A.P. 311(a)(4)).

Appellants reliance on Petition of Woodland Hills School District, 81 Pa.Commw. 199, 473 A.2d 257 (1984), is misplaced. In that case a labor grievance was filed by a school district employee over the school district’s procedures in hiring for a football coaching position. The employee had requested arbitration pursuant to a collective bargaining agreement and the school district petitioned the trial court to stay the arbitration, arguing that under the circumstances, the employee could not seek arbitration under the collective bargaining agreement. The trial court denied the petition and the school district appealed to the Commonwealth Court, which found the appeal properly before it under Pa.R.A.P. 811(a)(4), in a one sentence footnote without elaboration. We find Woodland Hills distinguishable due to the equitable nature of the school district’s proceedings in that case when compared with the assumpsit action at law brought by appellee. Woodland Hills does not stand for the proposition that a denial of a stay in proceedings automatically allows an appeal as of right under the injunction provision of Rule 311(a)(4).

Accordingly, appeal quashed.


author: BROSKY, Judge:

text:
    560 A.2d 795
    COMMONWEALTH of Pennsylvania v. Ralston W. MERCHANT, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 6, 1989.
    Filed June 12, 1989.

      James A. Ashton, Pittsburgh, for appellant.
    Scott A. Bradley, Assistant District Attorney, Washington, for Com., appellee.
    Before BROSKY, MELINSON and WATKINS, JJ.
   BROSKY, Judge:

This is an appeal from judgment of sentence imposed upon appellant after his conviction for driving under the influence.

Appellant was arrested in Aspinwall Borough by a police officer of a neighboring municipality, Etna, who drove through Aspinwall on a “routine patrol.” Appellant raises one issue for our resolution: whether the trial court erred in not granting appellant’s motion to suppress due to the stop and arrest being in violation of 42 Pa.C.S.A. § 8953. Upon consideration of all arguments, we vacate the judgment of sentence, grant appellant’s motion for suppression and remand for a new trial.

On October 21, 1988, appellant was operating a motor vehicle in the Borough of Aspinwall when he was stopped by a police officer of the Borough of Etna. The Etna officer was neither in pursuit of a suspect nor responding to a request for aid but, instead, apparently, was on a “routine patrol” of the neighboring borough. Apparently this is a frequent occurrence as the officer testified, “[w]e routinely go through Aspinwall and Sharpsburg.” After field sobriety tests were taken, appellant was arrested for driving under the influence and later administered Blood Alcohol Content (BAC) tests. He was later convicted in a bench trial.

We do not have great difficulty in deciding that the arrest in the present case was in violation of the Municipal Police Jurisdiction Act. Curiously, the Commonwealth does not even assert that the arrest was allowed under the Act. In contrast, the trial court asserts that the detention by the police was authorized under subsection (a)(5) of the Act. The portions of the Act relevant to our discussion read as follows:

(a) Section 8953. General Rule. Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
(4) Where the officer has obtained the prior consent of the chief law enforcement officer, or a person authorized by him to give consent, of the organized law enforcement agency which provides primary police services to a political subdivision which is beyond that officer’s primary jurisdiction to enter the other jurisdiction for the purpose of conducting official duties which arise from official matters within his primary jurisdiction.
(5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace or other act which presents an immediate, clear and present danger to persons or property.

(Emphasis added). The trial court evidently believes that any time an officer, while on duty in his or her own jurisdiction, enters another jurisdiction he would be “on official business.” However, we cannot agree that an on-duty officer in a jurisdiction foreign to his own automatically obtains this status. Rather, when subsections (4) and (5) are read simultaneously, the import of those terms, we believe, becomes much clearer.

The general purpose of the statute is to restrict the jurisdiction of police to their own municipalities, on the one hand, while allowing certain practical and policy exceptions to the general rule on the other hand. In subsection (4), the ability of police to perform functions in another jurisdiction related to or incident to matters developing in their primary jurisdiction is recognized. Commonwealth v. Sestina, 376 Pa.Super. 441, 546 A.2d 109 (1988), provides an example of the conduct contemplated in subsection (4). In Sestina, officers investigating a motor vehicle accident scene where the driver left the scene without notifying police or identifying himself, were led, by information provided by witnesses, to the driver’s apartment situated in another borough. This conduct was classified by a panel of this court to fall within subsection (4).

When the material in subsection (5), placed logically, we must assume, after subsection (4) is read, it appears that subsection (5) allows police officers, who are in the foreign jurisdiction on “official business” under the guise of subsection (4), and who witness the commission of a crime or offense, to perform the same functions in the foreign jurisdiction that they can perform in their own jurisdiction in similar circumstances: namely, detain the offender. If subsection (5) is read to consider “official business” as any visit by an on-duty officer into another jurisdiction the exception would swallow the rule and, further, would make many of the specified subsections superfluous. There would be, in effect, virtually no limitation on the jurisdiction of the municipal police at all and, of course, this would run contrary to the purpose of the statute. As stated by our colleague, Judge Watkins, in Commonwealth v. Ebersole, 342 Pa.Super. 151, 492 A.2d 436, 438 (1985):

A careful reading of the subject statute reveals that its purpose is to provide police officers with authority to make arrests outside of their primary jurisdictions in limited situations. In providing for such authority, the statute also insures that police departments will be kept apprised, to the greatest possible extent, of action taken in the municipality by police from outside the jurisdiction.

(Emphasis added). Certainly, this purpose would be frustrated if police could, perhaps on quiet or uneventful days or evenings, enter neighboring jurisdictions in hope of making an arrest. Thus, we have little difficulty in determining that the stop and arrest in the present case was in violation of the statute and thus unlawful. Thus remains the question of the remedy to be applied.

In the instant case appellant seeks suppression of all evidence obtained subsequent to the unlawful detention, no other remedy is urged. There is authority indicating that suppression is an appropriate remedy for violation of the Municipal Police Jurisdiction Act. Commonwealth v. Fiume, 292 Pa.Super. 54, 436 A.2d 1001 (1981); Commonwealth v. Fischer, 348 Pa.Super. 418, 502 A.2d 613 (1985); Commonwealth v. Roberts, 356 Pa.Super. 309, 514 A.2d 626 (1986).

However, there is also some authority suggesting that suppression is an inappropriate remedy for a violation of the Act. Commonwealth v. Saul, 346 Pa.Super. 155, 499 A.2d 358 (1985); Commonwealth v. Peppers, 357 Pa.Super. 270, 515 A.2d 971 (1986); Commonwealth v. Sestina, Supra. Apparently relying upon this authority, the Commonwealth has, bypassed argument on the legality of the Etna police officer’s activity in entering and patrolling Aspinwall and stated that even if it was violative of the Act, suppression would be an inappropriate remedy. In our view a willful disregard of legislative jurisdictional restrictions on police powers can neither be condoned nor encouraged explicitly or implicitly by this court. Nothing breeds contempt for the law more so than when those entrusted to enforce it readily violate it. This is true even if the law disregarded does not relate to a “fundamental” right. We acknowledge the authority indicating that suppression is sometimes an inappropriate remedy for a violation of the Act. However, this authority cannot be properly read to suggest that all violations of the Act will be free from the remedy of suppression.

In actuality, of the cases cited by the Commonwealth to support their position, only one of those cases makes a holding that suppression was inappropriate for the violation committed, Commonwealth v. Saul, supra. In both Peppers and Sestina, the panel found that the Act was not violated and, as an aside, also stated that had the conduct engaged in there been found to be a violation, suppression would be inappropriate. In Peppers, the panel prefaced the statement regarding suppression with the words “under these circumstances”, and, even Saul prefaced its conclusion regarding suppression with the statement “[u]nder the circumstances of the instant case.” Thus, clearly, these cases do not have the all-conclusive and encompassing nature implicitly represented to us by the Commonwealth.

The decision in Saul was, essentially, an application of the Mason decision of our Supreme Court to a situation involving a violation of the Municipal Police Jurisdiction Act. In Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985), our Supreme Court indicated that suppression was an inappropriate remedy for a violation of the Rules of Criminal Procedure relating to issuance and execution of search warrants when the violation was more technical than substantive.

In Mason, a police officer from Montgomery County had reason to believe that a resident of Reading, Berks County, had committed a burglary in Montgomery County. A search warrant was issued and the Montgomery police, accompanied by two officers from Reading, searched the suspect’s apartment. A panel of this Court found a violation of the rules, and granted suppression, essentially, because the Reading police did not “participate” in the search. Our Supreme Court indicated, while holding that the search was not in violation of the rule, that suppression would be an inappropriate remedy under such circumstances.

The panel in Saul believed the same result should follow under the facts of that case. There, an officer from Harrisburg engaged in a controlled drug buy at the appellant’s apartment located in Susquehanna Township without either permission or a request for aid from Susquehanna Township Police. The panel, concluding that the violation was similar to the one in Mason, found that suppression was inappropriate. Although not engaging in a thorough discussion on the nature of the violation, the panel implicitly concluded that the violation was not substantive, or at least, not substantive enough to require suppression of evidence. We believe it is important to note that the conduct of the police in Saul was not, by itself, of a type wholly unauthorized by the statute. By this we mean that we don’t believe that extra jurisdictional investigations are always in violation of the Act. Certainly police, under the Act, can conduct investigations outside their primary jurisdiction if they follow proper procedures. Thus, the violation itself was a result of a failure to proceed properly in the extra-territorial’ investigation. It was not a result of the fact that extra-territorial investigations were unauthorized under the Act. Similar comments would apply to the decisions in both Peppers and Sestina.

In Commonwealth v. Peppers, supra, we were faced with a situation where a description of a car involved in a robbery was relayed over the radio. An officer of a nearby jurisdiction saw what he believed was the suspect vehicle, and began pursuing that vehicle while notifying the police in the borough where the robbery took place. When another police vehicle approached, the suspect vehicle was stopped and the appellant was ultimately apprehended and arrested. The arrest took place in a third jurisdiction, Harrisburg. The panel found the arrest to be in conformity with the Act, yet indicated under those circumstances suppression would be appropriate. Of course, arrests in other jurisdictions are recognized under the Act when police follow in fresh pursuit or respond to a request for aid. As such, the police conduct in Peppers was of a type contemplated in the Act. Similarly, in Commonwealth v. Sestina, supra, as already related, police, while investigating an accident, were provided information regarding a suspect who lived in a nearby township. The only question in that case regarded whether or not the police had proper consent to enter the other township in following up the accident. The panel found that they did. There is no question that the Act contemplates and allows police to enter another jurisdiction to investigate matters originating in their own jurisdiction and also to arrest an individual for a crime committed in their jurisdiction. The only question in Sestina regarded whether the police had proceeded properly in doing so.

In all three of these cases, the actions taken by the police revolved around, or were in response to, specific criminal behavior. This is where the present case diverges from the others in a fashion which we believe to be substantial. In the present case, the intrusion by the police into the neighboring jurisdiction was not in response to any specific criminal action or behavior. Nor can the intrusion into the jurisdiction under those circumstances, be said to have been contemplated under the Act.

The Act clearly does not contemplate or condone extra-territorial patrols. In fact, the entire purpose of the Act is to provide a general limitation on such activity while allowing exceptions, for, in essence, extra-territorial activity in response to specifically identified criminal behavior, that occurring within the primary jurisdiction of the police. We cannot conclude that, in the present case, the police in question were engaging in activity of a type allowed or contemplated in the Act, yet perhaps failed to proceed in total conformity with Act. Nor can we, in good conscience, say that there was only a “technical” violation of the Act. The conduct in the present case, although not necessarily abusive or pernicious, was in direct conflict with the general purpose and/or spirit of the Act. Hence, it was quite clearly a substantive violation of the Act.

The fact that the violation here is substantive militates toward a finding that suppression is appropriate. This position is further strengthened by portions of the Saul and Mason opinions. It is stated in Saul that where the alleged violation is not “fundamental”, suppression is required only where there was prejudice in the sense that the search might have occurred. Saul, 499 A.2d at 361, quoting from Mason, 507 Pa. at 406-07, 490 A.2d at 426.

Regardless of whether the violation was considered “fundamental”, the prejudice element would seem to compel suppression. If there had been compliance with the Act, appellant would have never been stopped, “searched” and arrested. Furthermore, under the Act and the facts presented in this case, there is no scenario which would have allowed the Etna officer to make the detention made here.

In contrast, in Saul, the investigation made was within contemplation of the Act, although strict compliance might have required prior approval from police in the jurisdiction in question or, perhaps, their participation. In Mason, the search made was also within the general contemplation of the rule, although the procedure followed raised a question of whether there was technical compliance with that rule. (The Supreme Court found that there was.) Thus, although we read Saul, Mason, Peppers and Santina to support the disallowance of suppression where there is a technical violation of the Act and where the, police are engaged in conduct contemplated within the Act, but perhaps simply fail to proceed properly, we do not read those cases to compel the same result when the very purpose and spirit of the Act is violated and there is no question of technical compliance with the Act. If there was never a threat of suppression, the law could be made a mockery by willful non-compliance without any adverse consequences. This, we will not allow.

For the above reasons, we vacate the judgment of sentence, reverse the order denying suppression and remand for a new trial.

      . Much was made of the fact, during suppression proceedings, that the municipalities in question were part of a large group of municipalities party to a mutual aid and assistance agreement. We find the agreement to be immaterial to our decision for two reasons. First, the agreement itself cannot be read to allow the activity in question. The agreement contemplates the provision of assistance upon request and also speaks of responding to a request for aid. The agreement does not appear to authorize blanket approval of routine patrols by police from a neighboring jurisdiction. Secondly, nothing in the Act itself would appear to authorize the expansion of the jurisdictional parameters of the Act by agreement, and certainly parties to an agreement, even if themselves governmental entities, cannot contractually expand or alter the limitations of applicable law.


author: CIRILLO, President Judge:

text:
    560 A.2d 800
    COMMONWEALTH of Pennsylvania v. Lawrence FOSTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 2, 1988.
    Filed June 22, 1989.

      Eliot D. Moskowitz, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and WATKINS and MONTGOMERY, JJ.
   CIRILLO, President Judge:

This is an appeal from the denial without hearing of a petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (repealed and replaced by the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, effective April 13, 1988). The petition was denied as part of a “Finley disposition” in the hearing court upon court-appointed counsel’s request to withdraw from representation of the petitioner due to the frivolousness of his claims for relief. Thus the hearing court’s order was based upon its conclusion, after independent review of the record, that the PCHA petition was frivolous. Despite this determination and the grant of permission for PCHA counsel to withdraw, the hearing court appointed new counsel, Eliot D. Moskowitz, Esquire, to represent petitioner in this appeal. Mr. Moskowitz has also requested permission to withdraw based on frivolousness, however, and that petition is before us for determination.

Before addressing the petition to withdraw, we note that under the present state of the law, appointment of appellate counsel following the withdrawal of PCHA counsel in a Finley disposition would be unnecessary and improper. Commonwealth v. Turner, 518 Pa. 491, 493-95, 544 A.2d 927, 928-29 (1988) (“When, in the exercise of his professional judgment, counsel determines that the issues raised under the PCHA are meritless, and when the PCHA court concurs, counsel will be permitted to withdraw and the petitioner may proceed pro se, or by privately retained counsel, or not at all.” (emphasis added)); Commonwealth v. Finley, 379 Pa.Super. 390, 394, 550 A.2d 213, 215 (1988) (“Once counsel for the petitioner determines that the issues raised under the PCHA are ‘meritless/ and the PCHA court concurs, counsel will be permitted to withdraw and the petitioner may proceed on his own or with the aid of private counsel to pursue a review of the ruling entered, ifhe/she so wishes.” (citing Turner, supra) (emphasis added)). In this case, however, because appellate counsel was appointed prior to the decisions in Turner and Finley, we cannot conclude that the hearing court acted improperly and we will thus hold counsel, in seeking to withdraw, to the same standards applicable to attorneys properly appointed under Turner and Finley

Counsel’s original petition to withdraw in this matter was filed prior to the Pennsylvania Supreme Court’s decision in Turner or the en banc decision of this court in Commonwealth v. Finley. Although the United States Supreme Court decision in Pennsylvania v. Finley, supra, had made it clear that, as a matter of federal constitutional law, the procedures of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), were not prerequisites to attorney withdrawal in postconviction matters, the requirements of Pennsylvania law in light of Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), were not clear at that time. Accordingly, in reviewing counsel’s petition, this court continued to apply the standards enunciated in McClendon for withdrawal in direct appeals despite the fact that this was a petition for collateral relief.

Under these standards, counsel’s original petition, filed on March 2, 1988, was denied based on his failure to establish that he had provided the necessary notice of his actions to his client. He was given permission, however, to resubmit his petition to withdraw accompanied by evidence that he had complied with the notice requirements of McClendon, supra. As of May 18, 1988, counsel had failed to take any further action in the matter, and on that date we entered an order directing him, within ten days and on pain of sanctions, either to provide notice to his client and renew his withdrawal petition or to file an advocate’s brief on appellant’s behalf. Counsel did neither, but instead filed a new petition to withdraw, this time alleging personal reasons for the withdrawal. The reasons alleged in this new petition were insufficient to justify the withdrawal of court-appointed counsel and it was therefore denied, with directions to counsel to file an advocate’s brief on or before June 10, 1988.

Counsel did file an additional brief before this deadline, but it was not an advocate’s brief — rather, it alleged that the issues raised by appellant’s PCHA petition are frivolous. It thus failed to satisfy either our order or the requirements of McClendon. However, since its filing, any doubts as to the requirements of Pennsylvania law regarding attorney withdrawal in postconviction matters have been resolved by the decisions in Turner and Commonwealth v. Finley. Upon review of the brief in light of these decisions, we must conclude that counsel has substantially complied with their requirements. Moreover, upon review of the record and the hearing court’s opinion outlining its reasons for concluding that the PCHA petition was frivolous, we must agree that the petition is entirely meritless, that counsel should thus be permitted to withdraw, and that the hearing court’s order denying the petition should be affirmed.

Although changes in the law have resulted in a windfall to counsel in that he can now be permitted to withdraw despite his failure to comply with the requirements of case law in existence at the time he originally filed his request, we cannot overlook his failure to comply with our explicit directives. Accordingly, we direct the PCHA court to withhold any fees which might otherwise be due Eliot D. Moskowitz, Esquire, in connection with his appointment in this matter.

Order affirmed. PCHA court is directed to withhold any fees due court-appointed appellate counsel.

      . We have no difficulty in reaching this conclusion despite dictum in Commonwealth v. Harris, 381 Pa.Super. 206, 218 n. 6, 553 A.2d 428, 434 n. 6 (1989), to the effect that, absent an explicit statement by our supreme court that prior cases such as Commonwealth v. Thompson, 431 Pa. 161, 245 A.2d 268 (1968), and Commonwealth v. Hoffman, 431 Pa. 160, 245 A.2d 256 (1968), requiring appointment of counsel to pursue a PCHA appeal, are no longer viable, it would be assumed that appellate counsel should continue to be appointed after Finley dispositions in the hearing court. Thompson and Hoffman based their holdings upon a determination that the right to counsel in a collateral action was of constitutional dimension and thus that Pennsylvania’s statutory right to assistance of counsel in PCHA proceedings was coextensive with the federal constitutional right to counsel outlined in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and its progeny. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), however, made it clear that there is no federal constitutional right to counsel at any stage of a post-conviction proceeding. Commonwealth v. Turner, supra, then clarified that the right to counsel provided in Pennsylvania by supreme court rule is vindicated if counsel is permitted to withdraw after following procedures akin to those used in Finley. These decisions thus tacitly overrule the prior Pennsylvania Supreme Court decisions referred to by the Harris panel and carve out an exception to Pa.R.Crim.P. 1503(b) (providing that a court appointment of counsel continues on appeal from a denial of PCHA relief) where the appointment has been terminated by the court based upon its finding that the petition is frivolous and thus that counsel cannot ethically advocate it.

      . The appointment of appellate counsel and counsel’s original request that he be permitted to withdraw also occurred before this court’s decision in Commonwealth v. Perry, 373 Pa.Super. 422, 541 A.2d 388 (1988), which, although it did not hold reappointment of counsel improper in this situation, did state that where such an appointment has occurred, "subsequent counsel, if so desired, is not required to utilize any formal procedures in order to withdraw, and does not have to continue representation on appeal.” Id., 373 Pa.Superior Ct. at 427, 541 A.2d at 390. Perry’s elimination of procedural requirements for withdrawal of subsequent counsel thus has no application to this case.


text:
    560 A.2d 802
    COMMONWEALTH of Pennsylvania v. Duane E. BRADY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1989.
    Filed June 21, 1989.

      Nancy A. Patterson, New Bloomfield, for appellant.
    Gloria J. McPherson, Assistant District Attorney, Shermans Dale, for Com., appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge:

Duane E. Brady, a juvenile, was tried as an adult on charges of burglary, theft by receiving stolen property, and criminal conspiracy. At trial, the Commonwealth produced evidence which showed that on the afternoon of August 5, 1986, Brady sat in a car while the driver of the vehicle, Frederick J. Miller, left the vehicle, entered a residential dwelling through a window, removed items of property which included stereo equipment, a rifle, a shotgun, and a chain saw, and placed them in the trunk of the car. There was no evidence that Brady had exited the car or assisted Miller during these events. Later, during the evening of the same day, Brady was a passenger in the back seat of the same vehicle when Donald Miller, an informant, drove Fred Miller to a Mini-Mart where some of the stolen property was sold by Fred Miller to an undercover state trooper. After Fred Miller had sold the rifle and shotgun to the undercover state trooper for one hundred ($100.00) dollars, Miller gave Brady sixty ($60.00) dollars in repayment of a debt owed by Miller to Brady. On this evidence a jury found Brady guilty of burglary, theft by receiving stolen property, and conspiracy to commit theft by receiving stolen property. The jury found Brady not guilty of conspiracy to commit burglary. A post-trial motion in arrest of judgment was denied, and Brady was sentenced to serve a term of imprisonment. On direct appeal, Brady contends that the Commonwealth’s evidence was insufficient to show that he had participated in any culpable way in the offenses committed by Fred Miller. We are constrained to agree.

“To sustain a conviction, the facts and circumstances which the Commonwealth prove must be such that every essential element of the crime is established beyond a reasonable doubt. Although the Commonwealth does not have to establish guilt to a mathematical certainty, and may in the proper case rely wholly on circumstantial evidence, the conviction must be based on more than mere suspicion or conjecture.” Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973) (footnotes omitted). See also: Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975); Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972); Commonwealth v. Weaver, 309 Pa.Super. 509, 455 A.2d 1199 (1982). However, in conducting appellate review to determine the sufficiency of the evidence we must determine “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Common wealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). Additionally, “[w]hen conflicts and discrepancies arise, it is within the province of the jury to determine the weight to be given each testimony and to believe all, part, or none of the evidence as they deem appropriate.” Commonwealth v. Verdekal, 351 Pa.Super. 412, 419-420, 506 A.2d 415, 419 (1986). See also: Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975).

The only testimony about the burglary came from Fred Miller. He testified as follows:

Q. Did anyone go with you to that home?
A. Not inside the premises.
Q. How did you get there?
A. I drove up in a Fleetwood Cadillac.
Q. Was anyone with you in the car?
A. Yes, Duane Brady.
Q. The defendant here today?
A. Yes.
Q. He was in the car?
A. Yes.
Q. Did he know what you were planning to do?
A. I believe so.
Q. Why do you think he knew what you were planning to do?
A. I went in through a window. I came out with stereo equipment and some guns and I placed them in the trunk of the car.
Q. Did you come out the window?
A. No, I came out the basement door.
Q. What did you bring out of the house?
A. A shotgun, a rifle, stereo equipment ... let me think ... a VCR, and — I can’t think of the name of the thing. It’s used for — A Satellite decoder.
Q. Did Duane Brady see the things that you brought out of the house?
A. Yes.
Q. And you put them in the car where Duane Brady was?
A. Yes.
Q. The window that you went in, how did you get in?
A: I knocked the screen out and I went through. The window was already open.
Q. Did you know the people that lived there?
A. No.
Q. Did you have permission to enter the house?
A. No.
Q. Did you discuss it with Duane Brady before you went up?
A. ... Yes.
Q. Did you tell him what you were going to do?
A. More or less. He knew I didn’t live there.

He also testified on cross-examination as follows:

Q. Did [Brady] participate in any way in the burglary?
A. No, he did not. He never got out of the car at all if I remember correctly.
Q. He was simply along with you?
A. Yes.

This testimony failed to establish that appellant had entered the residence with an intent to commit a crime therein. In order to establish appellant’s guilt, therefore, it was essential for the Commonwealth to prove that appellant was an accomplice of Fred Miller in the commission of the burglary. An accomplice is one who “knowingly and voluntarily cooperates with or aids another in the commission of a crime.” Commonwealth v. Carey, 293 Pa.Super. 359, 373, 439 A.2d 151, 158 (1981). See: 18 Pa.C.S. § 306. See also: Commonwealth v. Jones, 213 Pa.Super. 504, 508, 247 A.2d 624, 626 (1968). To be an accomplice, “one must be an active partner in the intent to commit [the crime].” Commonwealth v. Fields, supra 460 Pa. at 319-320, 333 A.2d at 747; Commonwealth v. McFadden, 448 Pa. 146, 150, 292 A.2d 358, 360 (1972). “An [accomplice] must have done something to participate in the venture.” Commonwealth v. Flowers, 479 Pa. 153, 156, 387 A.2d 1268, 1270 (1978). “[A] showing of mere presence at the scene of a crime is insufficient to support a conviction: evidence indicating participation in the crime is required.” Commonwealth v. Keblitis, 500 Pa. 321, 324, 456 A.2d 149, 151 (1983). See also: Commonwealth v. Smith, 490 Pa. 374, 416 A.2d 517 (1980); Commonwealth v. Blankenbiller, 362 Pa.Super. 477, 524 A.2d 976 (1987); Commonwealth v. Johnson, 355 Pa.Super. 372, 513 A.2d 476 (1986). “Even presence at the scene of a crime in the company of its perpetrator has been held to be insufficient to sustain a conviction.” In re Hawthorne, 374 Pa.Super. 104, 107, 542 A.2d 167, 169 (1988). See also: Commonwealth v. Roscioli, supra 454 Pa. at 63-64, 309 A.2d at 399; Commonwealth v. Garrett, 423 Pa. 8, 12-13, 222 A.2d 902, 905 (1966); In re Amos, 287 Pa.Super. 446, 449, 430 A.2d 688, 690 (1981).

In the instant case, the Commonwealth’s evidence showed only that appellant had been present in a car when the driver stopped the car, broke into a home, and removed personal property. There was no evidence that appellant had agreed to aid or did in fact aid Miller in the commission of the burglary. We know only that appellant was present in the car.

The Commonwealth argues that a jury could infer that Miller, when called as a Commonwealth witness, was protecting Brady and that he testified untruthfully when he said that appellant had merely remained in the car. We reject this argument. Although the jury could certainly disbelieve Miller’s testimony, it could not find appellant guilty in the absence of evidence showing participation. The only testimony which the Commonwealth offered regarding appellant’s presence was the testimony of Fred Miller. Therefore, when Miller failed to implicate appellant there was no other evidence upon which the jury could rely. A finding that Miller was not credible did not support an affirmative inference that appellant was guilty. To convict, evidence of participation was necessary.

The Commonwealth argues in the alternative that the jury could have found that appellant was acting as a “look out” while Fred Miller entered the home. It contends that it would be unreasonable to assume that appellant “did not assist his friend at least by acting as lookout while Miller was inside the house during daylight hours at a time when the residents could soon be returning home from work or school.” There is no evidence, however, from which it can be found that appellant agreed to act or did act as look out. Nothing more has been shown than that appellant was present. This was insufficient to show that appellant was an accomplice. Commonwealth v. Henderson, 249 Pa.Super. 472, 482-483, 378 A.2d 393, 398 (1977). See also: Commonwealth v. Everett, 297 Pa.Super. 320, 327, 443 A.2d 1142, 1145 (1982).

“[T]he mere fact that a person is present at the scene of a crime but does not in any way participate in or encourage its commission does not make him a principal even in the second degree. Hence, although a man is present while a felony is committed, yet if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal in the second degree merely because he does not endeavor to prevent the felony or apprehend the felon.
“The fact that the witness may approve the commission of the crime does not make him a principal if he had not in any way manifested to the criminals that the shares their purpose and is acting with them. Something must be shown in the conduct of the bystander which indicates a design to encourage, incite or in some manner afford aid or consent to the particular act.”

Commonwealth v. Roscioli, supra 454 Pa. at 64-65 n. 5, 309 A.2d at 399 n. 5, quoting 1 Wharton’s Criminal Law and Procedure, § 108 (1957). See also: Commonwealth v. Johnson, supra 355 Pa.Super. at 375-376, 513 A.2d at 478 (“We cannot ... convict a man who did not actively participate, but merely watched as the crime took place.”). In the instant case, the Commonwealth was able to prove no more than that appellant was present and that he knew Miller was committing a burglary. This was insufficient to support appellant’s conviction of burglary.

To convict appellant of theft by receiving stolen property, the Commonwealth was required to prove beyond a reasonable doubt (1) that the property which Fred Miller had removed from the residential dwelling had been stolen; (2) that appellant received, retained or disposed of such property; and (3) that he knew or had reason to believe that the property in question was stolen. See: 18 Pa.C.S. § 3925; Commonwealth v. Deemer, 316 Pa.Super. 28, 82, 462 A.2d 776, 778 (1983). See also: Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978); Commonwealth v. Jerry, 323 Pa.Super. 299, 470 A.2d 601 (1983); Commonwealth v. Grabowski, 306 Pa.Super. 483, 452 A.2d 827 (1982). Here, it is clear that the property had been stolen and that appellant knew it had been stolen. To establish that appellant received or possessed the stolen property it was sufficient to show that appellant had joint or constructive possession of it. See: Commonwealth v. Stasiak, 305 Pa.Super. 257, 451 A.2d 520 (1982); Commonwealth v. Breslin, 194 Pa.Super. 83, 165 A.2d 415 (1960). Where the Commonwealth proceeds under a theory of joint or constructive possession, however, it must establish that the accused exercised conscious control or dominion over the stolen property. Commonwealth v. Scudder, 490 Pa. 415, 419 n. 2, 416 A.2d 1003, 1005 n. 2 (1980). See also: Commonwealth v. Davis, 444 Pa. 11, 15, 280 A.2d 119, 121 (1971) (absent literal possession, a defendant may be deemed to be in possession of stolen property only when it is proved that he exercised conscious control or dominion over such property). The Commonwealth could also establish guilt by showing that appellant was an accomplice of Miller in the disposition of the stolen property. See: 18 Pa.C.S. § 306.

The Commonwealth does not contend that appellant was guilty of receiving stolen property because he received sixty ($60.00) dollars from the proceeds realized by Miller upon sale of the stolen guns. The receipt of proceeds from the sale of stolen property will not alone support a charge of theft by receiving stolen property. See: 76 C.J.S., Receiving Stolen Goods § 5(a)(3); Wharton’s Criminal Law, Volume IV, § 458 at p. 21 (14th ed. 1981); Commonwealth v. Light, 10 Pa.Super. 66, 72 (1899), affirmed, 195 Pa. 220, 45 A. 933 (1900) (“The receiving of something for which the stolen property was exchanged, or the proceeds of its sale, will not support the charge of receiving stolen goods.”); Commonwealth v. Riley, 13 Pa.Dist. 669, 670, 30 Pa.Co. 316, 318 (1904) (same). It is the receipt, disposition, or possession of the stolen property which constitutes the offense of receiving stolen property.

The paucity of evidence in this case leads us inevitably to the conclusion that the Commonwealth failed to prove that appellant ever received or had possession of the stolen property. Although appellant was again present in Donald Miller’s car when Fred Miller attempted to dispose of the stolen property, appellant’s role, if any, was not explained. The evidence does not show what, if anything, occurred between the time of the burglary and Fred Miller’s attempt to sell the stolen property to an undercover state trooper. Neither does it show that the stolen property was ever subject to appellant’s control. The evidence did not show that appellant had helped to place the stolen property in the trunk of Miller’s car or that he had helped to remove it. Indeed, the evidence does not show that appellant had ever touched the stolen property or that he had ever driven or otherwise controlled the car in which Fred Miller had placed the stolen property. The arrangements for Fred Miller to meet the undercover policeman had been made by Donald Miller. There was no evidence that appellant had aided therein or that he had participated in any way in the negotiations between Miller and the undercover policeman for the sale of the stolen property. During these negotiations, according to all the evidence, appellant remained seated in the rear of the car. Thus, according to the evidence, appellant was nothing more than a spectator who was present but did not participate. This was insufficient to support a conviction for theft by receiving stolen property. See: Commonwealth v. Scudder, supra (fact that defendant was a passenger in a stolen van which had stolen property in the back, along with paint used for painting van’s side windows, and that the operator attempted to avoid police, was insufficient to support defendant’s conviction for receiving stolen property). Cf. Commonwealth v. Armstead, 452 Pa. 49, 51, 305 A.2d 1, 2 (1973) (mere presence in an automobile in which a weapon is found is not sufficient to prove that a defendant-passenger is in possession of the weapon); Commonwealth v. Whitner, 444 Pa. 556, 281 A.2d 870 (1971) (mere proximity to stolen goods insufficient to show possession as an element of larceny).

For similar reasons, we hold that there was insufficient evidence to establish that appellant was part of a conspiracy to commit theft by receiving stolen property. While it is true that “a conspiracy may be inferentially established by showing the relationship, conduct or circumstances of the confederate which demonstrate a unity of purpose to accomplish an unlawful act[,]” Commonwealth v. Weaver, supra 309 Pa.Super. at 513, 455 A.2d at 1201, “to prove criminal conspiracy circumstantially, ‘the evidence must rise above mere suspicion____’ ” Commonwealth v. Frey, 264 Pa.Super. 212, 215, 399 A.2d 742, 743 (1979), quoting Commonwealth v. Burdell, 380 Pa. 43, 49, 110 A.2d 193, 197 (1955). “[P]roof of guilt on a charge of conspiracy fails if it shows only that the accused was present at the scene of the crime and knew of its commission.” Commonwealth v. Henderson, supra 249 Pa.Super. at 483, 378 A.2d at 398. On the facts of the instant case, the Commonwealth proved nothing more than appellant’s presence in an automobile with knowledge that stolen property was present in the trunk and that such property was going to be sold. The Commonwealth did not show that appellant had agreed to participate or aid in the sale of the stolen property or that he had exercised the slightest degree of dominion or control over such property. This was insufficient to permit an inference that appellant was guilty of criminal conspiracy to receive, retain or dispose of the stolen property.

Thus, although appellant’s presence at the times when the offenses were committed by Fred Miller was a suspicious circumstance, it was insufficient, without more, to support a finding that appellant had participated actively therein.

The judgment of sentence is reversed, and appellant is discharged.

POPOVICH, J., files a dissenting statement.

POPOVICH, Judge,

dissenting:

I dissent. I am convinced that the evidence presented was sufficient to sustain the appellant’s conviction on the charge of theft by receiving stolen property.

Instantly, the record reveals that, at approximately 3:00 p.m., the appellant went with Frederick Miller to the Bate-man home located down a back road in rural Perry County. After seeing Harry Bateman exit his house, the appellant, waiting inside Frederick Miller’s car, watched as Miller entered the residence through a window. The appellant knew the residence was not Miller’s home. The appellant witnessed Miller remove items of personal property, including a rifle and a shotgun, from the home and place them in the trunk of the car in which he was a passenger. Hours later during the evening of the same day, the appellant was present when Miller sold the stolen weapons to an undercover state trooper. Immediately thereafter, Miller gave $60.00 from the proceeds of the sale to the appellant in repayment of a debt.

To sustain a conviction for receiving stolen property, the Commonwealth must prove beyond a reasonable doubt that: 1) the property was stolen; 2) the accused knew or had reason to believe the property was stolen; and 3) the accused received, retained or disposed of the property. 18 Pa.C.S.A. § 3925; Commonwealth v. Deemer, 316 Pa.Super. 28, 31, 462 A.2d 776, 778 (1983).

It is undisputed that the property was stolen and that the appellant knew the rifle and shotgun were stolen. Thus, the only question remaining is whether the appellant had joint or constructive possession of the property. See Commonwealth v. Stasiak, 305 Pa.Super. 257, 451 A.2d 520 (1982). Instantly, the appellant was not only present when the weapons were stolen but also was present at the sale of the guns. Significantly, the appellant, immediately after the sale of the stolen property, accepted $60.00 in proceeds from the sale.

The majority holds that “receipt of proceeds from the sale of stolen property will not alone support a charge of theft by receiving stolen property[,]” citing Commonwealth v. Light, 10 Pa.Super. 66, 72, affirmed, 195 Pa. 220, 45 A. 933 (1900). However, under the facts before us, I fail to discern the difference between the appellant having actually touched the stolen property even for a brief moment (an event which would have certainly sufficed to sustain the conviction), and the appellant’s receipt of the proceeds immediately after the sale. In the case sub judice, I would hold that the appellant’s receipt of the proceeds did in fact constitute constructive possession of the property and ergo was sufficient to support his conviction for receiving stolen property.

Moreover, this appellant clearly was not a mere innocent bystander: He knew the property was stolen; he was present at the burglary; he was a passenger in the car where the stolen property was stored; he was present at the sale of the stolen property; and he knowingly accepted proceeds from the sale of the stolen property. While standing alone any one of those facts would not support a conviction, I believe that their amalgamation does support the conviction of the appellant on the charge of theft by receiving stolen property.

      . Donald Miller was the owner of the vehicle. He and Fred Miller are not related by blood or marriage.

      . The defense offered no evidence and rested upon completion of the Commonwealth’s case.

      . Fred Miller entered pleas of guilty to charges arising out of the events of August 5, 1986.

      . We reject the Commonwealth’s contention that appellant could be found guilty of theft by receiving stolen property because he remained silent and did not warn the undercover state trooper that the property being sold had been stolen. Although this was a relevant circumstance, it did not alone constitute the crime with which appellant had been charged.

      . Appellant’s remaining issues are without merit. At the transfer hearing, appellant, who was represented by counsel, did not oppose his transfer from juvenile to adult criminal court. In fact, during the hearing appellant stated: "Well, I might as well go ahead ... And be transferred, yes.” (N.T. August 13, 1986 at p. 4). Under these circumstances, we will not find error on the part of the juvenile court for not fully explaining the reasons for appellant’s transfer to adult court. See: 42 Pa.C.S. § 6355(c). We also find no basis for holding that appellant was denied the effective assistance of counsel at the transfer hearing.

      . Immediately after the sale. Miller and the appellant were arrested. When the appellant was searched, three of the marked twenty dollar bills used in the purchase were found on the appellant’s person.

      . Moreover, "[i]f the property comes under the control of the receiver it is not necessary that the possession be manual; it is sufficient if he has control of the custodian, as if the receiving be by a servant, by direction of his master[.]" Light, 10 Pa.Super. at 72. Presently, the appellant had control over the custodian, Miller, to the extent that Miller owed the appellant $60.00.


author: OLSZEWSKI, Judge:

text:
    560 A.2d 809
    Edward KIRKBRIDE and Carole Kirkbride, Appellees, v. LISBON CONTRACTORS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1986.
    Filed June 26, 1989.

      David G. Battis, Philadelphia, for appellant.
    William H. Lamb, West Chester, for appellees.

      Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a final judgment entered by the Court of Common Pleas of Chester County following the denial of appellant’s motion for a new trial or judgment n.o.v.

Appellees, the Kirkbrides, own a home in East Cain Township, Chester County, which is situated on a thirty-acre wooded tract between Norwood Road and the Brandy-wine Creek. About 120 feet of the Kirkbrides’ lot fronts on Norwood Road and extends across a ridge back to a former railroad easement that runs parallel to the Brandywine for more than 1000 feet behind their property.

In 1977, the Uwchalan Township Municipal Authority (“UTMA”) obtained an easement for construction of a sewer line behind the Kirkbrides’ property. The easement ran along the former railroad line and was parallel to the Brandywine. Later that year, Chester County took the land along the easement outright in order to construct a bike path and jogging path over the sewer line.

In furtherance of its plan, UTMA contracted with appellant, Lisbon Contractors, Inc. (“Lisbon”), to construct the sewer line and bike path. Lisbon began working on the project in February of 1978. The next month, a Lisbon bulldozer drove onto the Kirkbrides' property and proceeded to make a 1,200-foot clearing which would later be used as a storage area (“clearing incident”). After the sewer line was completed, Lisbon began restoration work. While doing so, Lisbon created an 800-foot embankment on the Kirkbrides’ property which it later regraded to meet the adjoining hillside along the sewer line and bike path (“embankment incident”).

In response, the Kirkbrides instituted a suit in trespass. Following a jury trial, the Kirkbrides were awarded $7,000 in compensatory damages and $70,000 in punitive damages for the clearing incident, and $12,000 in compensatory damages for the embankment incident. Following the denial of Lisbon’s post-trial motions, Lisbon filed an appeal with this Court. On appeal, Lisbon contended that: (1) the trial court erred in instructing the jury that the amount awarded as punitive damages need not bear a reasonable relationship to the amount awarded as compensatory damages; (2) the amount awarded as punitive damages was grossly excessive and unsupported by the evidence; and (3) grading the embankment was a permanent alteration of the land which inflicted no compensable injury, thereby not entitling the plaintiffs to recover for the estimated cost of reconstructing the land to its former contours.

Upon review, this Court held that the trial judge did err in instructing the jury that punitive damages need not bear a reasonable relationship to the amount awarded as compensatory damages. Kirkbride v. Lisbon Contractors, Inc., 357 Pa.Super. 322, 516 A.2d 1 (1986). Accordingly, we reversed the decision of the trial court and appropriately refrained from ruling on the other issues presented by Lisbon. In response, the Kirkbrides appealed to the Supreme Court of Pennsylvania, which proceeded to reverse the decision of this Court and remand the matter to this Court for disposition of the remaining issues. Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800 (1989). These issues involve the alleged excessiveness of the amount awarded for punitive damages and whether the Kirkbrides were entitled to recover for damages due to the embankment, as it constituted a permanent alteration of their land.

The first issue for our review is whether the punitive damages awarded for the clearing incident were excessive and unsupported by the record. Specifically, Lisbon contends that the evidence does not show a malignant motive or animus on their part against the Kirkbrides thereby justifying the jury’s ability to award punitive damages. In support, Lisbon argues that, while its conduct may have constituted a reckless disregard of the Kirkbrides’ property rights, it did not amount to malice. Further, Lisbon argues that since the jury’s award of punitive damages is ten times greater than its award for compensatory damages, the award is clearly excessive. In sum, Lisbon’s arguments focus on its motive in creating the damage and on the disparity between the jury’s award for compensatory and punitive damages.

In Pennsylvania, an award of punitive damages is controlled by Section 908(2) of the Restatement (Second) of Torts. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). In pertinent part, Section 908(2) provides:

(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

As such, in making its determination as to punitive damages, the jury must weigh the character of the act, the nature and extent of the harm, and the wealth of the defendant. Kirkbride, supra.

Generally, the assessment of the excessiveness of a punitive award is within the sound discretion of the trial court. Sulecki v. Southeast National Bank, 358 Pa.Super. 132, 516 A.2d 1217 (1986). A trial court’s failure to reduce a punitive award which is so disproportionate when compared to the character of the act, the nature and extent of the harm, and the wealth of the defendant that it will shock the court’s sense of justice, however, may amount to an abuse of discretion. Kirkbride, supra.

In consideration of these factors, it is clear that Lisbon’s argument with regard to the excessiveness of the punitive award as compared to the award for compensatory damages is unfounded. As such, this Court must assess the merit of Lisbon’s argument as to its motive in creating the damage caused by the clearing incident.

Lisbon contends that its actions were neither intentional nor malicious, as is required by the Restatement (Second) of Torts § 908(2). Lisbon admits, however, that its actions may have constituted a reckless disregard of the Kirkbrides’ property rights. Accordingly, although its actions may not have been intentional or malicious, they were admittedly reckless and therefore fall under the mandates of the Restatement, since punitive damages may be awarded for “conduct that is outrageous, because of defendant’s evil motive or his reckless indifference to the rights of others.” Therefore, Lisbon’s assertions are meritless.

Moreover, a review of the record shows that the jury was presented evidence which would support a finding that Lisbon acted with reckless disregard in performing the clearing incident. While this evidence, as is contended by Lisbon, may not show malice, it does support the conclusion that Lisbon acted with reckless disregard for the property rights of the Kirkbrides. In addition, the record shows that the jury was presented with evidence of Lisbon’s wealth and that its award was in compliance with this evidence. Further, to ensure that the jury fully comprehended the nature and extent of the damages, it was transported to the scene of the incident where it was able to view the harm firsthand. Accordingly, the evidence supports the determination that the jury adequately weighed Lisbon’s wealth, the nature and extent of the harm, and the character of the act in calculating its punitive award. In comparing the resultant award with these factors, we conclude that it is not so disproportionate as to shock this Court into tampering with the jury’s determination.

Next, Lisbon argues that the measure of compensatory damages for regarding the embankment is not the reasonable cost of repairs, but is the decrease in the fair market value of the property. In support, Lisbon asserts that the injury to the property should be characterized as a permanent injury, not a reparable injury.

The measure of damages for injury to property is the cost of repairs where that injury is reparable unless such cost is equal to or exceeds the value of the injured property. Rabe v. Shoenberger, 213 Pa. 252, 62 A. 854 (1906); Wade v. S.J. Groves & Sons Co., 283 Pa.Super. 464, 424 A.2d 902 (1981). Where the cost of repair does exceed the value of said property, the cost of damages becomes the value of the property. Id. Where, however, the injury is deemed to be permanent, the measure of damages becomes the decrease in the fair market value of the property. Id.; Bumbarger v. Walker, 193 Pa.Super. 301, 164 A.2d 144 (1960).

Applicable judicial precedent establishes that a permanent injury is limited to those instances where the damage was caused by a de facto taking or where the injury was unequivocally beyond repair. Rabe, supra, (the destruction of five springs of water due to the defendant mining company’s failure to adequately support the surface of the land constituted permanent injury); Hoffman v. Berwind-White Coal Mining Company, 265 Pa. 476, 109 A. 234 (1920) (the destruction of plaintiffs’ springs as the result of defendant’s coal mining activities constituted permanent injury); Schlichtkrull v. M.P. Oil Company, 301 Pa. 553, 152 A. 829 (1930) (infusion of salt water into plaintiff’s wells due to defendant’s oil drilling activities was deemed to be permanent injury); Frye v. Pennsylvania Railroad Company, 187 Pa.Super. 367, 144 A.2d 475 (1958) (damages caused by flooding of property due to defendant-railroad’s clogging of drainage pipe constituted reparable injury); Bumbarger v. Walker, 193 Pa.Super. 301, 164 A.2d 144 (1960) (the infiltration of water with high sulphur content into plaintiffs spring due to defendant’s strip mining activities resulted in permanent injury); Ridgeway Court, Inc. v. Landon Courts, Inc., 295 Pa.Super. 493, 442 A.2d 246 (1982) (court held that landowner’s act in altering landscape of property which resulted in increase of water drainage onto plaintiff’s property, amounted to reparable injury); Duquesne Light Company v. Rippel, 329 Pa.Super. 289, 478 A.2d 472 (1984) (where two drivers struck and damaged utility poles, injury was reparable); Gross v. Jackson Township, 328 Pa.Super. 226, 476 A.2d 974 (1984) (plaintiffs entitled to receive restoration costs for damage done to shrubs and trees sustained when the township widened road).

Instantly, the injury to the Kirkbrides’ land did not amount to a permanent injury, since it did not involve a taking and is in fact reparable. Unlike the cases in which the applicable injury constituted one of permanence, Lisbon has the capacity to restore the property to its previous form. Accordingly, the Kirkbrides were entitled to receive the costs of restoring their land back to its original condition.

Lisbon also argues that pursuant to the Restatement (Second) of Torts, the Kirkbrides were permitted to elect restoration only if such costs would be reasonably incurred. In furtherance, Lisbon contends that the costs of repair must be weighed against the diminution in value of the land and, if the repair costs significantly exceed the diminution in value, such costs are unreasonable and impermissible.

In Lobozzo v. Adam Eidemiller, Inc., 437 Pa. 360, 263 A.2d 432 (1970), the Pennsylvania Supreme Court specifically noted that, with regard to remedial damage to realty, a plaintiff may recover only the cost of repair or restoration without regard to the diminution in value of the property. In making its determination, the Court looked to the holding of Rabe, supra, which unequivocally held that where an injury is reparable, the damage is the cost of repair or restoration. Lobozzo, supra. Accordingly, Lisbon’s argument is clearly erroneous.

With regard to the reasonableness of the award, the determination of damages clearly lies within the discretion of the jury, which weighs the evidence and assesses the credibility of the witnesses. Glomb by Salopek v. Glomb, 366 Pa.Super. 206, 530 A.2d 1362 (1987). Thus, we will not substitute our decision for that of the jury’s absent a clear abuse of that discretion. Id. Demeanor and credibility of witnesses are issues solely for the trier of fact. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Included in the province of the jury is the weight to be accorded the evidence. Wilson v. Benjamin, 332 Pa.Super. 211, 481 A.2d 328 (1984). As such, this Court must accept the findings of the court below with respect to the credibility of witnesses. Kembel v. Schlegel, 329 Pa.Super. 159, 478 A.2d 11 (1984).

A review of the record establishes that the jury did not abuse its discretion in making its determinations. As was noted by the trial court, the amount of compensatory damages awarded by the jury are far closer to the estimates given by Lisbon’s witnesses than to those given by the Kirkbrides’ witnesses. The jury, having relied on the testimony of Lisbon’s witnesses with regard to the costs of repair, cannot be deemed to have abused its discretion. As such, we find no merit in Lisbon’s contention.

Additionally, Lisbon argues that the grading of the embankment caused no injury to the Kirkbrides’ property. In support, Lisbon alleges that prior to its act of regrading, the embankment was unstable and that the face of the embankment was sheer and exposed. Lisbon contends that it improved the property by stabilizing the area and by subsequently seeding the area.

Instantly, a review of the record reveals that a witness for the plaintiffs testified that Lisbon’s actions resulted in erosion along the hillside of the embankment. In contrast, witnesses for the defense testified that Lisbon’s actions actually prevented future erosion and served to stabilize a previously unstable area. Thereafter, in his instructions to the jury, the trial judge advised the jury to weigh the credibility and accuracy of the testimony of the witnesses. Further, he left the question of whether the Kirkbrides actually suffered an injury to the discretion of the jury. In doing so, the judge specifically instructed the jury that one may not be compensated for an improvement to his land and that the jury was to consider any form of compensation rendered by the defendant in making its determination. Thereafter, based upon the evidence adduced at trial, the jury appropriately utilized its discretion in making its determination. There is nothing in the record to indicate that its determination was unsubstantiated or worthy of our interference.

Accordingly, since the injury to the Kirkbrides’ property is reparable, the trial court did not err in instructing the jury that the damages constituted the cost of repairing the injury. The judge then allowed the jury to determine whether the injury was worthy of repair and, if so, the costs attributable to said repair. As such, we affirm the determinations of the trial court.

Therefore, we affirm the judgment and order of the trial court.

      . There are other judicially mandated foundations for determining that an injury is permanent. Early case law established that damages based upon the diminution of the value of the injured property applied only where the defendant had entered the property under the power of eminent domain. Lentz v. Carnegie, 145 Pa. 612, 23 A. 219 (1891); Robb v. Carnegie Brothers & Co., 145 Pa. 324, 22 A. 649 (1891).
      Subsequent cases involving trespass actions for nuisance held that this form of computing damages was applicable where the nuisance was continuous or where the nuisance resulted in an indeterminable cost of repair. Milan v. Bethlehem, 372 Pa. 598, 94 A.2d 774 (1953); Evans v. Moffat, 192 Pa.Super. 204, 160 A.2d 465 (1960) (court held that damage to property by air pollution could not be rectified merely by repairing the damaged paint to the plaintiffs’ houses). Since these cases are not factually compatible with the case at bar, they need not be discussed in context with the instant case.


author: CAVANAUGH, Judge:

text:
    560 A.2d 814
    Nicholas G. PERAKIS v. LUCERNE ENERGY, INC. and AG Services, Inc. v. AMERICAN BANK AND TRUST COMPANY OF PENNSYLVANIA, R-Towne Development Company, and York County Industrial Development Authority.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1989.
    Filed June 21, 1989.

      Michael Handler, Indiana, for appellants.
    Morton J. Earley, Indiana, for Perakis, appellee.
    Before CAVANAUGH, DEL SOLE and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

This is an appeal from a judgment entered in favor of a commercial landlord, appellee Perakis, for the amount of unpaid rent due from tenants after they had vacated the premises prior to the expiration of the lease term. On appeal, the tenants allege error by the lower court in not finding that under the terms of the lease agreement they were free to terminate the lease prior to the stated end of term date.

The property in question is a commercial facility which landlord’s predecessor in interest, R-Towne Development Company, had leased to tenants, Lucerne Energy, Inc. and A.G. Services, Inc. Perakis had arranged to purchase the property with financing provided through the York County Industrial Development Authority (IDA) in order to take advantage of certain federal tax exemptions. On December 31, 1984 title to the property was conveyed to IDA, and Perakis leased the property from IDA after it issued notes and mortgages to American Bank and R-Towne. On the same date R-Towne assigned to Perakis its interest in the lease with appellants.

On January 21,1985, appellants attorney informed Perakis that appellants intended to vacate the premises by February 1, 1985, eleven months prior to the termination date set in the lease. The basis for this early termination was the asserted breach by landlord of the paragraphs in the lease relating to a taking for public use and quiet enjoyment. No rental payments were remitted after January, 1985.

The lower court found that there had been no breach by landlord and, therefore, rental for each of the remaining eleven months was due. On appeal, tenants present argument that the terms of the lease allowed them to terminate the lease and vacate the premises.

The clauses of the lease in question provide as follows:

12. Taking for Public Use — Lessor agrees that if said premises, or any part thereof, shall be taken by any Government or Governmental authority by eminent domain proceedings or otherwise, for any purpose whatsoever, Lessee shall have the right to terminate this Lease at the end of any rental month by serving upon Lessor not less than ten (10) days’ previous notice in writing of its election so to do, said termination, however, to be subject to all the rights and liabilities of the parties hereto that may have accrued hereunder at the time of such termination; but if Lessee should not elect to terminate, then from and after the taking as aforesaid the rent reserved herein shall abate in a just and fair proportion.
17. Quiet Enjoyment — Provided Lessee performs all its covenants, agreements and obligations hereunder, Lessor will warrant and defend Lessee in the peaceful and quiet enjoyment of the premises but only against the lawful claims of all persons claiming by, through or under Lessor.

We agree with the analysis of the lower court that the transaction did not constitute a “taking” within the meaning of paragraph 12. In order for lessee to have the right to terminate the lease a governmental authority must engage in a taking of the premises. The voluntary sale of the property by one private owner to another private equitable owner, through the medium of a governmental authority as legal title holder, is not a taking.

Not every acquisition of land by a governmental authority is a taking. Where the public authority acquired title to land through private negotiation and sale, rather than by condemnation, there is no taking of the property. See Petition of Fisher, 433 Pa. 113, 248 A.2d 849 (1969). The element of compulsion that is necessary for a taking to occur is missing from the instant situation.

Appellants argue that the phrase “by eminent domain proceedings or otherwise, for any purpose whatsoever” brings the transaction within the scope of paragraph 12. This ignores, however, the prerequisite that there be a taking. The quoted phrase relates to the means by which the government authority effectuates the taking; it does not expand the coverage to other sorts of transfers that do not involve a taking.

Further, the title of the paragraph, “Taking for Public Use,” indicates that the paragraph relates to the concept of a condemnation action, as provided for in the Eminent Domain Code, 26 P.S. § 1-101 et seq. Condemnation may occur by a declaration of taking, an overt exercise of the power of eminent domain, or by a de facto taking. See, City of Philadelphia v. Sorrentino, 95 Cmwlth.Ct. 236, 505 A.2d 373 (1986). Outside of this context, the phrase “taking for public use” does not appear. “In the absence of peculiar conditions, the common acceptance of the use of the word must prevail.” Staisey v. Tucker, 7 Cmwlth.Ct. 649, 300 A.2d 518 (1973), citing Commonwealth v. Dickert, 195 Pa. 234, 241, 45 A. 1058, 1061 (1900).

We also agree with the lower court’s treatment of the alleged breach of the covenant of quiet enjoyment. The averments of harm that appellants would suffer, if they had remained tenants of the premises, are entirely speculative in nature. They presented no evidence in support of the claim that the purported restrictions imposed upon them as a “principal user” of the property by the Internal Revenue Code, 26 U.S.C. § 103(b)(6)(O), then in effect, had actually damaged them. The mere possibility that tenants’ business opportunities relating to other properties may have been effected by the sale of the leased premises does not constitute a breach of their right to quiet enjoyment.

Judgment affirmed.