author: CIRILLO, President Judge. CAVANAUGH, Judge,

text:
    578 A.2d 513
    COMMONWEALTH of Pennsylvania v. Christopher WRIGHT, Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1990.
    Filed Aug. 1, 1990.
    Petition for Allowance of Appeal Denied Jan. 24,. 1991.
    Joseph M. Devecka, State College, for appellant.
    W. Jeffrey Yates, Asst. Dist. Atty., W. Bellefonte, for Com.

      Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   CIRILLO, President Judge.

Christopher Wright appeals from the judgment of sentence entered by the Court of Common Pleas of Centre County following his convictions for two counts of possession with intent to deliver marijuana, and two counts of delivery of marijuana. 35 P.S. § 780-113(a)(30). We vacate the judgment of sentence.

Ken Doran and appellant Christopher Wright attended Penn State University in 1982 and were in the same physics class. They also worked together in 1984 at the Saloon, a restaurant/bar located in State College. In March of 1985, Doran was arrested by the local and campus police for selling cocaine. On March 29, 1985 Doran signed a plea agreement with agents of the Commonwealth in which he agreed to help gather information concerning drug dealing on the Penn State campus in exchange for a probationary sentence. The agreement stated that Doran was aware that the Centre County District Attorney’s Office, the University Police Services, and the DEA reserved the right to indicate their approval of the agreement until Doran “fully cooperated.”

Doran came into contact with Wright a few months later. Wright invited Doran to visit his apartment. Doran had not taken any action to satisfy his plea agreement between March 29 and the beginning of July and when he ran into Wright he decided to cultivate a friendship in order to persuade Wright to purchase marijuana for him. Doran visited Wright’s apartment several times between July 8 and August 30 of 1985. Doran either called Wright prior to stopping at Wright’s apartment or just stopped by. Doran occasionally brought beer with him and generally stayed for an hour or two. During the visits Wright and Doran often played games such as Yahtzee and Rummy, drank beer, listened to music, and smoked marijuana.

On August 29, 1985, Doran was made aware that his plea bargain was not going to be approved because he had not “fully cooperated” with the agents of the Commonwealth. Thereafter, Doran contacted Police Officer Ronald Schreffler and told him that Wright was an individual from whom Doran thought he could purchase marijuana. Officer Schreffler testified that he and Doran then placed a phone call to Wright during which Doran attempted to set-up a drug transaction. The set-up, however, was unsuccessful. On August 30, 1985, Officer Schreffler again dialed Wright’s residence and Doran asked to meet with Wright. The purpose of the meeting was for Doran to give Wright the $40.00 he had received from the police to enable Wright to purchase two ounces of marijuana. Doran met with Wright, gave him the money, and made arrangements to meet again later that day to pick up the marijuana. Doran stated that the police were aware of all of his actions; “they took charge of the whole thing.... They made up the lies and I told them to fool [Wright] I suppose, to go along with the guise that I was just some innocent person.”

On September 11, 1985, a similar meeting was set up when Officer Schreffler placed a call to Wright’s residence and Doran requested to meet with Wright for the purpose of purchasing marijuana. Again the transaction took place in two steps; first Doran gave Wright the money and later that day they met to enable Wright to give Doran the drugs. This time, however, Doran was given $42.00 by the police, two dollars representing the money which he would give Wright for gasoline expenses.

On September 18, 1985, a third meeting was set up by the police, through Doran, to identify Wright’s source of marijuana and to enable Doran to meet with Wright’s source. Doran and Wright got into Wright’s car and drove to Kenneth Stouffer’s house in Milesburg. On their way, they stopped for gas and sodas for which Doran paid. After the two men entered Stouffer’s house, Wright asked Stouffer if he could get Doran some marijuana, and Stouffer went downstairs and brought up a bag of marijuana. Doran gave Stouffer $150.00 for a half pound of marijuana. Upon leaving Stouffer’s residence, Doran asked Stouffer if he could continue to do business with him; Stouffer responded yes and told Doran not to call him directly but to call Wright.

Again, on October 3, 1985, Officer Schreffler placed a call to Wright’s residence. Doran spoke with Wright and made arrangements for Wright to purchase some marijuana for Doran. Officer Schreffler gave Doran $280.00 to purchase a pound of marijuana. Officer Schreffler and Agent Albert R. Lumpkin, Jr., a narcotics investigator employed by the Pennsylvania Office of Attorney General, then drove him to a location near the area where he was to meet Wright. Doran and Wright travelled in Wright’s vehicle to Stouffer’s residence. They stopped on their way to Stouffer’s to buy gas and sodas. Again, Doran paid. Once at Stouffer’s, Doran was permitted to go downstairs to the basement where he saw a room filled with marijuana plants. Doran then purchased a pound of marijuana for $280.00. After leaving the Stouffer residence, Doran gave the marijuana to Agent Lumpkin. After each of the incidents, Doran gave a taped statement. Wright was arrested and thereafter was tried before a jury on April 23, 1986.

The aforementioned discussion details the nature and sequence of the events which transpired. However, also relevant to our disposition of this case is the testimony that illustrates the extent of the police department’s involvement and the nature of the relationship between Wright and Doran.

For example, on cross-examination, Officer Schreffler testified that Doran was acting as an informant. He also admitted that he decided to have Doran fabricate a story about working at the University so that Wright would have to go on campus to meet Doran to obtain the money for the marijuana.

In addition, Agent Lumpkin testified that Doran was not charged with possession of marijuana because “he was my informant or our informant, law enforcement agent.” Agent Lumpkin, an agent of the Commonwealth, testified that he had agreed to allow Doran to act as an informant. He also testified that he was aware that each time Wright drove Doran to Stouffer’s residence, Doran gave Wright money for gas. Agent Lumpkin also stated that he initially was not aware that Doran was fronting the money to Wright and that he preferred not to front money but if it was the only method of accomplishing the transaction, he would permit it.

Moreover, Thomas P. King, a criminal investigator with the State College Bureau of Police Services, testified that he had worked in drug enforcement and with the Penn State University Police. On cross-examination, Investigator King referred to Doran as “the informant” when he was explaining that Doran introduced King to Stouffer. King also stated that Doran was advised, to tell Wright that he worked at the University to provide Doran with an excuse for not initially accompanying Wright to obtain the marijuana and to enable the police to control where Doran and Wright would meet to exchange the money and marijuana.

In addition, Doran testified that on August 30, he asked Wright if he could purchase two ounces of marijuana and Wright responded that he would look into it but that he probably could obtain it. Doran stated that during his phone conversations with Wright, Wright never indicated that he did not want to sell him the marijuana. On cross-examination, Doran admitted that he told Wright he had to work, did not have much free time, and that as a result, Wright was doing him a favor by going to purchase the marijuana for him. He also stated that he had to give Wright the money to enable Wright to obtain the marijuana. Doran also stated that Wright’s name did not appear on a list of the persons with whom he had drug deals prior to March 29, 1985; a list which he had given to the police. Doran testified he wanted Wright to “think of him as a friend ” and that Wright introduced him to other persons as his friend. Doran also recounted that he and Wright smoked marijuana together at Wright’s apartment. Doran stated that he intentionally acted as Wright’s friend between July 8 and August 30 to get Wright to purchase marijuana. Doran also stated that he continued to visit Wright even after October 3rd, the last time Wright took Doran to Stouffer’s house. Doran testified that Wright did not make any money on the transactions and that Wright drove Doran to Stouffer’s because Doran asked him to do so and because Wright believed he had no other way of getting there. Doran stated that he was continuously trying to give Wright the impression that he was his friend.

In his own defense, Wright testified that he ran into Doran in the beginning of July and that Doran “started to buddy up to me.” He stated that Doran visited once or twice a week, stayed about an hour or two and occasionally brought a six pack of beer. Wright also testified that he introduced Doran to his friends. Wright also stated that he purchased the marijuana for Doran because Doran told him that he had to work. He agreed to pick up the marijuana for Doran because “he was my friend and it was a favor.” He also stated that he did not ask Doran for compensation on August 30 because he “thought it was a one-time only thing, it was a favor to a friend.” Wright testified that on September 11, Doran came to Wright’s apartment to give him the money to get the marijuana and that the reason Doran could not accompany him to get the marijuana was because he had to work. He also stated that the reason he drove Doran to Stouffer’s was because Doran told him that he did not have a car. Furthermore, he stated that he did not touch the marijuana or the money when he was at Stouffer’s on September 18 or October 3.

On cross-examination, Wright admitted that his fraternity brothers often came to his apartment to smoke marijuana that he provided to them as friends. He stated that he viewed smoking marijuana as a social activity. He admitted that there was some sort of trust between himself and Stouffer. Wright did not dispute the occurrence of the transactions. He stated that he drove back and forth to Milesburg because of his friendship with Doran. Wright never specifically told Doran that he was not going to get him marijuana. He stated that he did not sell Doran marijuana, he only bought it for him. In return for driving four hours and approximately 120 miles, Wright testified that he received nothing other than gas and two cartons of lemonade.

Following trial, the jury found Wright guilty of two counts of possession with intent to deliver in connection with incidents occurring on August 30, 1985 and on September 11, 1985, and two counts of delivery of marijuana in connection with an incident occurring on September 11, 1985. He was found not guilty of two counts of conspiracy to deliver marijuana. On April 26, 1986, Wright filed timely post-trial motions requesting a new trial because the trial court erroneously denied his jury instructions. In addition, he requested that the judgment against him be arrested because the conduct of Doran constituted entrapment as a matter of law. These motions were denied in an opinion and order by the Honorable Charles Brown, Jr., President Judge of the Court of Common Pleas of Centre County.

Wright filed a motion for probation without verdict pursuant to 35 P.S. § 780-117. Judge Brown granted a rule upon the Centre County District Attorney to show cause why Wright’s motion should not be granted. Thereafter the Commonwealth filed an answer to Wright’s motion for probation without verdict. Wright’s motion was denied and on November 10, 1987, Judge Brown entered two orders placing Wright on probation in lieu of sentence on both convictions. This appeal followed.

Wright raises the following issues for our consideration:

1. Must the defendant receive a new trial due to the failure of the trial court to give any one of the defendant’s requested jury instructions on the defense of consent.
2. Must the defendant receive a new trial due to the failure of the trial court to instruct the jury as requested in Instruction No. 2, as modified that in considering the entrapment defense, Ken Doran was a Commonwealth agent.
3. Was the conduct of the police and Ken Doran concerning Christopher Wright, entrapment as a matter of law requiring arrest of judgment.

Because we find that Wright’s third issue is meritorious and requires vacatur of his judgment of sentence, we address only that issue.

Wright argues that he was entrapped as a matter of law and consequently contends that his judgment should be arrested. He asserts that the Commonwealth should not be permitted to use the bonds of friendship to induce the purchase of marijuana.

The Commonwealth, on the other hand, states that Do-ran’s social meetings with Wright were merely part of the strategy generally employed in undercover drug investigations. Moreover, the Commonwealth notes that it merely offered Wright the opportunity to commit the crimes as he was already predisposed with the intent to sell and deliver controlled substances as evidenced by his friendship with Stouffer, the man from whom he purchased the marijuana for Doran. The Commonwealth concludes that there was no evidence presented to clearly establish entrapment as a matter of law. We disagree.

Prior to addressing whether Wright was entrapped as matter of law, we will briefly examine the relevant law on entrapment. Entrapment is defined as:

(a) General rule.—A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof.—Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment....

18 Pa.C.S. § 313.

Recently our supreme court in Commonwealth v. Weiskerger and Commonwealth v. Clapps, 520 Pa. 305, 554 A.2d 10 (1989), considered whether 18 Pa.C.S. § 313 embodies an objective standard to a guide a fact finder in the application of the defense of entrapment. The court quoted at length from this court’s decision in Commonwealth v. Jones, 242 Pa.Super. 303, 363 A.2d 1281 (1976), where we stated:

Prior to the adoption of the 1972 Crimes Code, the Pennsylvania test for entrapment was “... whether the criminal design was created by the officer or whether the officer merely afforded an opportunity for the commission of a crime by the person already disposed to commit the crime ...” ... This test was derived from the majority opinions in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), which focused on the predisposition of the accused to commit the crime____ The present codification of entrapment finds its origin in Mr. Justice FRANKFURTER’S concurring opinion in Sherman: “This does not mean that the police may not act so as to detect those engaged in criminal conduct and ready and willing to commit further crimes should the occasion arise. Such indeed is their obligation. It does mean that in holding out inducements they should act in such a manner as is likely to induce to the commission of crime only these persons and not others who would normally avoid crime____ This test shifts attention from the record and predisposition of the particular defendants to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime." Thus, the test for entrapment has shifted in emphasis from a consideration of a particular defendant’s readiness to commit crime, a subjective test, to an evaluation of the police conduct, an objective test, to determine whether there is a substantial risk that the offense will be committed by those innocently disposed. To determine whether an entrapment has been perpetrated in any particular case, therefore, the inquiry will focus on the conduct of the police and will not be concerned with the defendant’s prior criminal activity or other indicia of a predisposition to commit crime.

Weiskerger/Clapps, 520 Pa. at 311, 554 A.2d at 13 (emphasis in original), citing Jones, supra, 242 Pa.Super. at 310-11, 363 A.2d at 1284-85. The court, thus, concurred in our interpretation of section 313 as set forth in Jones and unequivocally concluded that the “objective test represents the more enlightened approach and fosters the constitutional idea of equal justice for all.” Weiskerger/Clapps 520 Pa. at 312, 554 A.2d at 14. The court noted that its conclusion was consistent with the legislative intent behind section 313 and opined that the burden of proof language in subsection (b) should not be read to indicate otherwise. Id. Subsection (b) was “merely intended to explicitly place the burden of proof on the defendant to establish the defense of entrapment as defined in subsection (a) with its language focusing on the conduct of the police officers.” Id. (emphasis in original).

Several cases decided prior to Weiskerger/Clapps are illustrative of this court’s application of the objective test. For example, in Commonwealth v. Stokes, 264 Pa.Super. 515, 518, 400 A.2d 204, 206 (1979), we stated that when viewed objectively “the police conduct did no more than afford appellant an opportunity to make a sale of heroin [because] the undercover agent ... merely provided a market if appellant wished to sell.” We stated the police conduct, that is, the actions of the deputy sheriff working undercover, was “not calculated to induce an innocent man to deal in heroin.” Id., 264 Pa.Superior Ct. at 518-19, 400 A.2d at 206. Accordingly, we found no entrapment. Id. at 518, 400 A.2d at 206. See also Commonwealth v. Danko, 281 Pa.Super. 97, 421 A.2d 1165 (1980) (court found that the evidence showed that the police officer merely provided appellant with the opportunity to commit the crime of prostitution, that the officer did not importune her to commit the crime, and that the officer’s behavior would not have induced an innocent person to act as a prostitute, and thus the court concluded that the trial court properly found no entrapment as a matter of law.)

Moreover, in Commonwealth v. Lee, 262 Pa.Super. 218, 396 A.2d 724 (1978), we stated,

Artifice and stratagem are legitimate tactics that may be employed by law enforcement officials to detect and combat crime. Merely affording opportunities or facilities for the commission of a crime by one who already had the criminal intent to engage in such a crime does not defeat the prosecution.

Id., 262 Pa.Superior Ct. at 221, 396 A.2d at 725. There, we found no entrapment where an auxiliary policewoman acted as a decoy prostitute and did not initiate conversation with appellant potential customer, quote prices or suggest locations for the proposed work. Id., 262 Pa.Superior Ct. at 222, 396 A.2d at 725.

Furthermore, in Commonwealth v. Clawson, 250 Pa.Super. 422, 378 A.2d 1008 (1977), a case factually similar to the case before us, appellant contended that the trial judge erred in refusing to instruct the jury on entrapment. We agreed and reversed appellant’s conviction of delivery of marijuana and remanded for a new trial. Id., 250 Pa.Superior Ct. at 426, 378 A.2d at 1011. There, a police informant asked appellant to obtain some marijuana for him, gave the appellant the money to purchase the drugs, and the appellant purchased the drugs for the informant. The appellant in Clawson had never been a drug dealer, did not make a profit on the deal, and testified that he delivered the marijuana only because the informant was a friend.

In addition, this court sitting en banc in Commonwealth v. McGuire, 339 Pa.Super. 320, 488 A.2d 1144 (1985), reviewed the evolution of the defense of entrapment and noted that by enacting section 313 the legislature rejected the subjective standard that formerly comprised the entrapment defense. Id. 339 Pa.Super. at 327, 488 A.2d at 1148. In McGuire, we stated,

Pennsylvania’s entrapment statute addresses the concern over ‘unconventional’ investigatory methods, and the potentialities inherent in these overreaching tactics. As such, the analysis only incidentally involves a particular defendant.
* * .* * * *
... Official conduct designed to provoke criminal behavior, or which creates a substantial risk that unwitting citizens will be implicated in criminal schemes, should not be tolerated in Pennsylvania.”

Id., 339 Pa.Superior Ct. at 328, 334, 488 A.2d at 1149, 1151 (emphasis added).

Thus, it is clear that this Commonwealth has adopted an-objective standard for evaluating whether entrapment has occurred. Generally speaking, this standard is employed by the fact finder. Whether an “entrapment has occurred is a question for the jury, unless the evidence points to only one conclusion, in which case it may be decided as a matter of law.” Clawson, supra, 250 Pa.Super. at 425-26, 378 A.2d at 1008, citing Commonwealth v. Mott, 234 Pa.Super. 52, 334 A.2d 771 (1975), (court held that as a matter of law the defense of entrapment was not available and should not go to the jury); see also Weiskerger/Clapps, supra (court stated that in order to prevail on a claim that the evidence demonstrated entrapment as a matter of law, appellants must show that the evidence was so overwhelming that it could admit no other conclusion and because appellants did not meet this standard, the court concluded that the question of whether the evidence demonstrated entrapment was one of fact and thus properly submitted to the jury); Commonwealth v. Delligatti, 371 Pa.Super. 315, 538 A.2d 34, allocatur denied, 520 Pa. 595, 552 A.2d 250 (1988) (court disagreed with appellant’s contention that the detective’s conduct amounted to entrapment as a matter of law where detective approached appellant, asked him to buy heroin for detective, and appellant readily accepted the proposition on five separate occasions without the detective’s insistence); Commonwealth v. Manley, 252 Pa.Super. 77, 380 A.2d 1290 (1977) vacated on other grounds 491 Pa. 461, 421 A.2d 636 (1980) (where appellant acted as a middle man in several drug sales which were set-up by an informant who was a friend of appellant, court employed objective test, looked at the police conduct to determine if there was a substantial likelihood that the offense would be committed by one innocently disposed, stated that the evidence did not admit of only one conclusion and concluded that the trial court was correct in presenting this issue to the jury); Commonwealth v. Wright, 235 Pa.Super. 289, 340 A.2d 544 (1975) (where the uncontradicted testimony revealed that other than the initial inquiry by police agent to appellant as to whether he had any cocaine to sell, all the affirmative action was at the insistence of appellant; the court found no misrepresentation, threat or coercion by the agent, stated that the asking of the initial question by the police agent did not amount to an inducement sufficient to dissuade an individual from his law abiding ways, and concluded that the trial court erred in holding as a matter of law that the police conduct constituted entrapment as a matter of law). Moreover, where there is conflicting testimony on the subject of inducement, the matter is properly left for the jury to resolve. Commonwealth v. Cameron, 247 Pa.Super. 435, 441, 372 A.2d 904, 907 (1977); see also Commonwealth v. Berrigan, 234 Pa.Super. 370, 343 A.2d 355 (1975).

Our review of the case law addressing entrapment as a matter of law leads us to conclude that based on an application of the objective test, the evidence admits of only one conclusion—that Wright was entrapped. We reach this conclusion by implementing the analysis utilized by this court in Commonwealth v. Thompson, 335 Pa.Super. 332, 484 A.2d 159 (1984), the leading case on entrapment as a matter of law. In Thompson we stated that once “the defense of entrapment has been properly established the trial court should determine the question as a matter of law wherever there is no dispute as to the operative facts relating to the defense.” Id., 335 Pa.Superior Ct. at 341, 484 A.2d at 164. There, we found that the appellant had properly established the defense because he had proven by a preponderance of the evidence that his conduct was in response to an entrapment. Id., 335 Pa.Superior Ct. at 345, 484 A.2d at 166. We examined the testimony to determine whether there was any dispute as to the operative facts of the defense. We noted there that not only was the testimony regarding the course of dealings of the undercover agent who feigned a romantic interest in appellant, uncontradicted, it was corroborated by the testimony of appellant. Id., 335 Pa.Superior Ct. at 341-42, 484 A.2d at 164. We stated:

A careful review of the record in this case reveals no significant discrepancy in testimony of the Commonwealth’s sole witness (Trooper Hammond) and of appellant regarding the course of conduct between the two over a ten month period. Appellant was a middle-aged black male and the trooper was a young, blonde, attractive female. A series of meetings and telephone calls occurred over a ten month period, all at the initiative of Trooper Hammond. Drugs were constantly discussed. Although it is not always clear who brought the subject up on each occasion; what is clear is that beginning on September 29, 1980, Hammond began requesting drugs from the appellant. By early 1981, and perhaps earlier, Hammond began to chide and criticize appellant for his consistent failure to obtain or provide drugs. Beginning in late 1980 or early 1981, the two began kissing after each meeting. Hammond also permitted appellant to put his arm around her, walked around in public with him, and socialized with his friends.

Id.

The court then stated that the goal which the defense of entrapment seeks to establish is “ ‘public confidence in the fair and honorable administration of justice’ ” id., 335 Pa.Superior Ct. at 342, 484 A.2d at 165, citing United States v. Sherman, 356 U.S. 369, 380, 78 S.Ct. 819, 824, 2 L.Ed.2d 848 (1958), and noted that the objective test is “aimed at condemning certain impermissible police conduct which, regardless of who may be induced to commit a crime, falls below standards to which common feelings respond, for the proper use of government power.” Thompson, 339 Pa.Super. at 342, 484 A.2d at 165, citing Sherman, supra, 356 U.S. at 382, 78 S.Ct. at 825. Next, the court stated that although whether an entrapment exists must be evaluated upon the facts in each case, “impermissible [police] activity may include ‘appeals to sympathy, friendship, the possibility of exorbitant gain, ... ’ ‘extreme pleas of desperate illness, appeals based primarily on sympathy, pity or close personal friendship, and offers of inordinate sums of money.’ ” Thompson, 339 Pa.Super. at 343, 484 A.2d at 165 (emphasis added) (citations omitted).

In concluding that appellant was entrapped as a matter of law, the court in Thompson stated that the conduct of Trooper Hammond was not police conduct which presented the mere opportunity to commit a crime but instead constituted inducement. Thompson, 339 Pa.Super. at 344, 484 A.2d at 166. Moreover, the court distinguished the facts in Thompson from those in Commonwealth v. Manley, su pra, where appellant had acted as a middle man in several drug sales to an undercover agent; sales which were set up by an informant who was appellant’s friend. The court in Manley found no entrapment as a matter of law thus disagreeing with appellant’s contention that he was induced by the informant’s request for drugs. The court based its finding on the fact that there was “no evidence indicating that the police were aware of the number or type of requests made by the informant, nor that the agent had encouraged the informant’s repeated requests in order to wear down appellant’s resolve.” Thompson, 339 Pa.Super. at 343-44, 484 A.2d at 159, citing Manley, supra 252 Pa.Super. at 87, 380 A.2d at 1294. In Thompson, on the other hand, the evidence clearly demonstrated that the police were aware of Trooper Hammond’s actions. The court stated “[n]ot only was Trooper Hammond obviously aware of her actions and of appellant’s interaction with her, she also admitted to suspecting the effect her conduct was having on appellant, i.e., romantic or sexual desires.” Thompson, 339 Pa.Super. 345, 484 A.2d at 166.

Wright, like the appellant in Thompson, has successfully invoked the defense of entrapment by proving by a preponderance of evidence that his conduct occurred in response to an entrapment. Id.; see also 18 Pa.C.S. § 313(b). Both Wright and the appellant in Thompson met this burden by the unconflicting testimony presented by the witnesses. Our review of the testimony reveals no dispute as to the occurrence of the transactions or the tactics employed by the police to lure Wright into participating in those transactions. Because there is no dispute as to the operative facts of the defense, we will, as we did in Thompson, determine whether the uncontradicted testimony establishes entrapment as a matter of law.

We are guided by our statements in Thompson where we acknowledged that impermissible police activity may include appeals to friendship. Here, Doran feigned friendship with Wright in order to manipulate him into purchasing marijuana as a favor to Doran. Doran, acting in cooperation with the police, induced and encouraged Wright to purchase the marijuana for him. This inducement and encouragement was accomplished by Doran’s deception of Wright. Doran purposefully appealed to Wright as a friend and Wright responded to Doran’s requests for favors as would any friend. For “to friendship every burden’s light.” The police, acting through Doran, induced Wright’s conduct by fabricating the stories Doran told Wright in order to lead Wright to believe that Doran himself could not purchase the marijuana. Doran’s appeals to friendship constituted methods of persuasion which created a substantial risk that Wright would, solely as a favor to Doran, purchase the marijuana. See 18 Pa.C.S. § 313.

The present case is distinguishable from those cases in which no entrapment as a matter of law was found. For example, in Commonwealth v. Frank, 357 Pa.Super. 442, 516 A.2d 64 (1986), we found that the issue of entrapment was properly submitted to the jury where a female undercover police agent posed as a patient who wished to control her weight and did no more than provide appellant physician with an opportunity to dispense medication. Id., 357 Pa.Superior Ct. at 447, 516 A.2d at 67. We stated that she merely provided appellant with an opportunity to commit an illegal act by establishing an artificial doctor-patient relationship and did not persuade him or induce him to dispense drugs illegally. Id. “There is no evidence that she established or promised, expressly or by implication, any relationship other than that of patient and physician.” Id. (emphasis added).

Clearly, such is not the case here. The testimony of both Wright and Doran illustrate that Wright’s actions were made in response to Doran’s implicit promise of friendship, not a professional doctor-patient relationship. For example, Doran testified that he feigned friendship in order to get Wright to purchase marijuana for him. Moreover, Doran’s testimony is buttressed by Wright’s testimony that he agreed to pick up the marijuana because Doran was his friend and it was a favor.

Furthermore, we, like the court in Thompson, find the facts in this case distinguishable from those in Commonwealth v. Manley, supra, where this court found that the trial court properly submitted the issue of entrapment to the jury. Manley, 252 Pa.Super. at 87, 380 A.2d at 1295. In Manley, although the evidence demonstrated that appellant told informant that he did not deal in drugs, and that he had no personal access to them, and that it was only after repeated telephone calls from the informant that he agreed to help obtain the drugs, it also revealed that the friendship between informant and appellant “was marked by only one social encounter in a bar, and ... there were no telephone calls and no visits by either of them to the other’s home.” Id., 252 Pa.Superior Ct. at 86, 380 A.2d at 1294. The court noted that despite the appellant’s claim that his sole motivation was friendship, appellant did admit to receiving profits from the drug transactions. Id., 252 Pa.Superior Ct. at 87, 380 A.2d at 1294. In finding no entrapment as a matter of law, the court in Manley noted that even though the police were aware of the informant’s friendship with appellant there was no evidence to establish that the police were aware of the type or number of contacts informant made prior to the first sale. Here, there were telephone calls and visits to Wright’s home by Doran and Wright received no money for any of the transactions. Doran made the police aware of that he was cultivating a friendship with Wright during July and August.

In addition, this case differs from Commonwealth v. Delligatti, supra. There, a detective approached appellant and asked appellant to obtain heroin for him. Appellant readily accepted the proposition on five separate occasions without the detective’s insistence. We stated that the conduct of the detective “was in no way calculated to induce an innocent person to deal with heroin,” and concluded that appellant was not entrapped as a matter of law. Delligatti, 371 Pa.Super. at 324-25, 538 A.2d at 39. In Delligatti, unlike here, appellant was not doing a favor for a friend when she purchased the heroin and retained some of the heroin from the transactions as a “copping fee.”

Thus based on the aforementioned discussion we conclude that the trial court erred in submitting the issue of whether Wright was entrapped to the jury. Doran, acting as a deputy of the police, rekindled a friendship with an unsuspecting Wright in order to further his own gain. The police, through Doran, employed tactics which created a controlled environment. In this environment, Wright acted as a good friend and demonstrated his friendship by doing favors for Doran. Doran used Wright and in the process abused a friendship that had flourished between them.

A man that hath friends must show himself friendly; and true is a friend that striketh closer than a brother. Proverbs 18:24.

Judgment of sentence vacated.

CAVANAUGH, J., dissents.

CAVANAUGH, Judge,

dissenting.

I respectfully dissent. The majority correctly states the rule that generally it is the fact finder which determines if entrapment has occurred, and that this issue may be decided as a matter of law only if the evidence points to one conclusion. It then goes on to state that the evidence, which is subject to different reasonable interpretations, leads to only one conclusion, namely that the appellant was entrapped.

In my opinion, the evidence raises a substantial factual issue as to whether the appellant was entrapped and the factual question clearly fell within the province of the jury. It seems to me that the majority has usurped the jury’s function by the simple expedient of determining as a matter of law what is clearly a question of fact.

      . Doran admitted that when he ran into Wright he did not have any indication that Wright was involved in drugs. He also stated that he called Wright later that month because he "was getting pressure from the police, the university police, just reminding me what I was here for, that I was suppose to be—to act as an informant, and let’s get moving. And, I thought well, let’s see what kinds of leads we have. And at that point Chris was the only real person I had known in State College that I thought I had a chance of doing anything with.” (emphasis added)

      . Investigator King was introduced to Stouffer to allow King to purchase marijuana from Stouffer. King stated that because “the informant had gained the trust of Stouffer, it was not difficult for [King] to make a buy from Stouffer."

      . Although the orders of sentence are dated November 5, 1987, these orders are reflected as being entered on the docket on November 10, 1987.

      . We note, as we did in Commonwealth v. Taylor, 299 Pa.Super. 113, 445 A.2d 174 (1982), that although this court in both Lee, supra and Clawson, supra purported to apply the objective test, it did consider the predisposition of the defendant.

      . We conducted this review in the context of our discussion of whether a criminal defendant should be required to admit every element of the offense with which he is charged before the entrapment defense will be available to him. McGuire, 339 Pa.Super. at 333, 488 A.2d at 1149.

      . We also stated that “a particular defendant’s attitude is not relevant; he need not prove that he was not ‘ready to commit the crime.’ Rather, he must establish by a preponderance of the evidence that the methods of persuasion directed toward him, if utilized again, present a substantial risk that otherwise honest, law abiding citizens may at some time be ensnared. McGuire, 339 Pa.Super. at 328, 488 A.2d at 1148-49.

      . We note that although the Thompson court stated that it must first determine whether the appellant has properly established the defense before determining whether the operative facts of the defense are in dispute, the court actually made its conclusion that the appellant had proven by a preponderance of the evidence that his conduct occurred in response to an entrapment on the basis of its finding that the testimony was unconflicting. See Thompson, 335, Pa.Super. at 345, 484 A.2d at 166.

      . We note that, initially, the court describes the testimony relating to the course of dealing between Trooper Hammond and appellant as "having no significant discrepancy” and later states the same testimony is “uncontradicted."
      In a footnote the court explained that when the trial court rejected appellant's motion for new trial or motion in arrest of judgment, it stated that there was "some conflicting testimony regarding the extent of the parties’ emotional involvement with each other and as to the effect this may have had on [appellant’s] actions.” The court went on to explain that this conflicting testimony was improperly considered by the trial court. The court stated that it would not address appellant’s issue that the trial court erred in allowing the Commonwealth to elicit prejudicial, conjectural testimony from the Commonwealth witness. However, in dicta, the court stated:
      this conflicting testimony relates not to the trooper’s conduct and appellant's response to it, but rather to the supposed state of mind of this particular appellant. By considering the testimony, the trial court focused subjectively on appellant’s mental state and not on the conduct of the police as contemplated by the statute. Also, what appellant ‘thought’ and what Hammond supposed he ‘thought’ are not ‘conflicting’ but only different.

        Thompson, 335 Pa.Super. at 341 n. 9, 484 A.2d at 164 n. 9.

      . The court stated "the testimony of [Trooper] Hammond and appellant corroborate each other, as both agreed to dates and locations of meetings, the clothes worn by [Trooper] Hammond on different occasions, the approximate time the kissing began, her repeated requests for drugs and the criticism.”

      . Gay-The Hare with many friends.

      . The trial court stated:
      In the instant case, the police used an informant who became friendly with defendant, visited defendant in his apartment on a few occasions at which times they drank beer and smoked marijuana, and subsequently, asked defendant to buy marijuana for him, which defendant did. The evidence does not show any resistance or apprehension on the part of defendant. Cf. Commonwealth v. Thompson, supra.


source: Caselaw Access Project

author: CERCONE, Judge.

license: Public Domain

text:
    578 A.2d 523
    COMMONWEALTH of Pennsylvania v. Richard W. WILSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 14, 1990.
    Filed July 30, 1990.

      Gerald M. McClain, Williamsport, for appellant.
    Daniel E. Holmes, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before TAMILIA, CERCONE and HESTER, JJ.
   CERCONE, Judge.

This is an appeal from the judgment of sentence of the Court of Common Pleas of Lycoming County. Appellant was charged with driving under the influence, possession of a controlled substance, and possession of drug paraphernalia. Appellant pleaded guilty to the possession charges and after a jury trial, was convicted on the driving under the influence charge. The lower court sentenced appellant to’ a term of forty-eight (48) hours to one (1) year on the driving under the influence charge, and a consecutive term of one (1) month to six (6) months on the charge of possession of drug paraphernalia. On the charge of possession of a controlled substance (marijuana), appellant was sentenced to a term of two (2) weeks to one (1) month, to be served consecutively to the sentences on the other charges. Appellant filed a motion for reconsideration of sentence which the lower court denied. Appellant then filed the instant timely appeal.

In his concise statement of matters complained of on appeal, appellant alleged that the court’s sentence was manifestly excessive. On appeal, counsel for appellant has petitioned to withdraw as counsel on the grounds that he finds the issues to be meritless and the appeal totally frivolous. In order to withdraw as counsel, counsel must comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Under Anders and its Pennsylvania progeny, in order to withdraw, counsel must (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court’s attention. Id.; Commonwealth v. McFarland, 386 Pa.Super. 91, 562 A.2d 369 (1989). The determination of whether the appeal is frivolous remains with the court. Commonwealth v. McClendon, supra, 495 Pa. at 471, 434 A.2d at 1186.

In this case, counsel has complied with the Anders requirements. He has filed a petition to withdraw, submitted a so-called “Anders” brief, and notified appellant of his right to retain new counsel or proceed in propria persona. We are left, then, to determine the merits of appellant’s claim since counsel’s right to withdraw is conditional upon a finding that the appeal is wholly frivolous. Commonwealth v. Bradley, 320 Pa.Super. 504, 467 A.2d 826 (1983).

Appellant has alleged that the sentence imposed by the lower court was excessive. Such a contention challenges the discretionary aspects of sentence. In such a case, the appellant must set forth in his brief a separate concise statement of the reasons relied upon for allowance of appeal. Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A. Failure to include in the appellate brief the required Rule 2119(f) statement renders the appeal defective. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In the instant case, appellant has not included such a statement in the Anders brief submitted by counsel, and the Commonwealth has objected to this defect. Thus, even if we were to find merit to the appeal, we would be precluded from reviewing it because of the absence of the required statement under Rule 2119(f). See Commonwealth v. Gambal, 522 Pa. 280, 561 A.2d 710 (1989) (absence of required Rule 2119(f) statement is procedural violation which superior court is not entitled to ignore where there is proper objection by opposing party).

Nevertheless, it is necessary for us to examine the merits of the appeal to determine if it is “wholly frivolous” so as to permit counsel’s withdrawal. Commonwealth v. Bradley, supra. Turning to appellant’s allegation that the sentence imposed was excessive, we note that sentencing is a matter that is within the sound discretion of the trial court, which will not be disturbed on appeal absent an abuse of that discretion. Commonwealth v. Dykes, 373 Pa.Super. 258, 541 A.2d 1 (1988), appeal denied 520 Pa. 602, 553 A.2d 965 (1988). To constitute an abuse of discretion, a sentence must either exceed the statutory limits or be patently excessive. Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985); Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983).

In the instant case, appellant was sentenced to the mandatory minimum term of forty-eight (48) hours for his conviction of driving under the influence. See 75 Pa.C.S.A. § 3731(e)(1). The maximum term to which appellant was subject for that offense was two years. See 18 Pa.C.S.A. § 1104(2). He actually received a maximum sentence of one (1) year for the DUI offense. On the charge of possession of drug paraphernalia, appellant’s minimum sentence of one month was the lowest possible sentence in the standard range of the applicable sentencing guidelines. 204 Pa.Code § 303.9 (standard range of one to six months for this offense with prior record score of one). The six month maximum which the court imposed for this offense is within the one-year statutory maximum authorized in 35 P.S. § 780-113(i). As to appellant’s conviction for possessing a small amount of marijuana, id. § 780-113(a)(31), the two week minimum is one-half of the thirty day maximum sentence imposed by the court, which is the same as the statutory maximum for this offense. See id. § 780-113(g). The lower court noted at sentencing that it would impose the thirty day maximum for the possession offense so as to avoid minimizing the seriousness of the offense to appellant, as there had been reference in the presentence report to a disposition on the part of appellant to minimize the seriousness of this crime.

In his Anders brief, counsel makes no argument as to why the sentence imposed by the lower court was excessive. He does, however, state that he thoroughly reviewed the record and diligently investigated the possible grounds of appeal, and concluded that there was no basis upon which an abuse of the lower court’s discretion could be alleged. We agree. The minimum sentence for the DUI offense is statutorily required and the minimum for possession of drug paraphernalia is the lowest possible within the standard range of the guidelines. The maximum sentences imposed for both of these offenses are well below the statutorily authorized máximums. The maximum sentence imposed on the possession of a controlled substance offense is the maximum authorized by statute (and the minimum imposed is one-half thereof); however, the lower court stated on the record its reasons for imposing the thirty-day maximum, and we would find, had it been alleged, no abuse of discretion in this regard. Counsel theoretically could have alleged excessiveness because of the lower court’s imposition of consecutive sentences. However, we would have found no error in that regard because the sentencing court has the discretion to impose consecutive sentences for multiple convictions. Commonwealth v. Norris, 248 Pa.Super. 330, 375 A.2d 122 (1977). All that is required to impose a consecutive sentence for multiple offenses is that the lower court indicate the minimum sentence to be served for the total of all offenses. 42 Pa.C.S.A. § 9757. This total minimum sentence was stated by the lower court in the instant case.

Although counsel’s Anders brief is theoretically lacking in that it does not contain reference to anything in the record that might arguably support the appeal, Anders v. California, supra, we will not saddle counsel with an impossible burden in attempting to conform his brief to the requirements of Anders. See Commonwealth v. McClen don, supra, 495 Pa. at 472-73, 434 A.2d at 1188 (counsel is saddled with an impossible burden if he is required to file a brief containing arguments that are nonexistent). As our supreme court stated in McClendon,

“[o]nce we are satisfied with the accuracy of counsel’s assessment of the appeal as being wholly frivolous, counsel has fully discharged his responsibility. The role of an advocate, insisted upon in Anders, refers to the manner in which the record was examined in an effort to uncover grounds to support the appeal. Where counsel has in good faith satisfied that obligation and found the appeal to be wholly frivolous, he can do more.

Id., 495 Pa. at 473-74, 434 A.2d at 1188.

We are satisfied with the accuracy of counsel’s assessment in the instant case. Our independent review reveals that the appeal is wholly frivolous. We will therefore permit counsel to withdraw.

Judgment of sentence affirmed; petition for leave to withdraw as counsel granted.

      . 75 Pa.C.S.A. § 3731.

      . 35 P.S. § 780-113(a)(16).

      . Id. § (a)(32).

      . Specifically, appellant was convicted of violations of §§ 3731(a)(1) and (a)(4) of the Vehicle Code. 75 P.S. §§ 3731(a)(1) & (a)(4).

      . We note that neither the record nor the briefs contains the necessary information from which the prior record score could be computed or reviewed by this court; however, the sentencing transcript refers to a standard range of one to six months for an offense in the offense gravity score level of “M". From this, it can be deduced that the pre-sentence report (which is not part of the record) referred to a prior offense which would yield a prior record score of one.


author: KELLY, Judge:

text:
    578 A.2d 526
    Jeffrey H. KLINE and Donna L. Kline, Husband and Wife v. Richard P. BEHRENDT, M.D. Appeal of Donna L. KLINE.
    Superior Court of Pennsylvania.
    Argued March 27, 1990.
    Filed July 30, 1990.

      James A. Stranahan, IV, Mercer, for appellant.
    Maria Zulick, Verona, for appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   KELLY, Judge:

The sole issue raised on appeal is whether the trial court properly denied appellant’s request to recall an expert witness to give rebuttal testimony. We affirm the trial court.

Appellant, Donna Kline, brought a malpractice action against the appellee, Richard P. Behrendt, M.D. alleging that his administration of spinal anesthesia during the birth of her child resulted in neurologic damage to her. Appellee’s defense was that any injury that may have occurred was the result of pressure by the baby on her sciatic nerve during the birth and not the anesthesia.

After the defense rested, appellant attempted to recall one of its expert witnesses, purportedly to rebut the testimony of the defense’s experts on the need for the injection and its causation of any possible injury. After an offer of proof was given, however, the trial court denied allowance to present the proffered rebuttal evidence because the witness would only be repeating what he had already stated during prior direct testimony. (N.T. 1/20/88 at 569-580). After a jury verdict in favor of the appellee, appellant filed post-trial motions which were denied. This timely appeal followed.

Upon review of the record, the briefs, and the well-reasoned opinion of the trial court, and especially the testimony of the experts, we find that the trial court did not err when it denied appellant’s request to recall one of its expert witnesses. The appellant’s proposed rebuttal testimony was composed solely of information already presented or immaterial to the issue of causation; consequently, there was no abuse of discretion in its exclusion. Jewelcor Jewelers v. Corr, 373 Pa.Super. 536, 542 A.2d 72 (1988); Neal by Neal v. Lu, 365 Pa.Super. 464, 530 A.2d 103 (1987). Rebuttal is not intended as a vehicle to permit an expert to repeat prior testimony so as to have the last word.

Based on the foregoing, we affirm the judgment entered on August 29, 1989 by the Court of Common Pleas of Mercer County. Jurisdiction is relinquished.


author: HUDOCK, Judge:

text:
    578 A.2d 527
    COMMONWEALTH of Pennsylvania v. James JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 23, 1990.
    Filed Aug. 1, 1990.
    Petition for Allowance of Appeal Denied Jan. 4, 1991.

      Kevin G. Sasinoski, Pittsburgh, for appellant.
    Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before KELLY, HUDOCK and HESTER, JJ.
   HUDOCK, Judge:

At the conclusion of a non-jury trial, Appellant was found guilty of two violations of the Uniform Firearms Act (18 Pa.C.S.A. § 6106 and § 6105) and one count of criminal conspiracy (18 Pa.C.S.A. § 903(a)(1)). Timely filed post verdict motions were denied and appellant was sentenced to 30 to 60 months imprisonment and fined $200. This direct appeal followed. We affirm the judgment of sentence.

The facts of the case can be summarized as follows: On October 21, 1988, at approximately 2:15 a.m., Officer Wesley McKenith observed a vehicle parked on a curb. Appellant and co-defendant, Mark Jackson, were seated in the car. Mark Jackson was seated in the driver’s side drinking from a styrofoam cup. The officer approached the men and smelled alcohol in the cup. There was a half gallon of wine in the front seat which was about two-thirds empty. After observing that co-defendant Jackson had been drinking, Officer McKenith advised him not to drive. Approximately 20 minutes later, the officer observed Jackson driving his vehicle the wrong way down a one way street. He stopped the vehicle and arrested Jackson for driving under the influence. While securing Jackson, Officer McKenith noticed Appellant “moving around in the car” and “fumbling around under the seat of the car”. Appellant then moved from the passenger seat to behind the driver’s seat. Officer McKenith ordered Appellant out of the car, searched him, and told him to leave, which Appellant did.

After calling for a tow truck, the officer searched the vehicle. Under the passenger seat, he discovered a .22 caliber pistol. The officer returned to his car and asked Jackson where appellant would be walking to. After driving around looking for appellant, the officer returned to the location of Jackson’s car. Appellant, who had returned to the scene of the arrest, drove off in the vehicle when Officer McKenith arrived. After a high speed chase, Appellant was apprehended.

The issue presented on this appeal is whether the trial court erred in denying Appellant’s motion to suppress the evidence obtained from Jackson’s automobile. After careful review of the facts and relevant case law, we conclude there was no error.

When Officer McKenith searched the automobile and found the gun under the passenger seat, he was conducting a search “incident to arrest”. Neither the record nor Appellant’s brief suggests why the contested search cannot be properly characterized as such. The law regarding such searches was established in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). “When a policeman has made a lawful arrest of the occupant of an automobile [footnote omitted], he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile, [footnote omitted]” Id. at 460, 101 S.Ct. at 2864. Both parties agree that Belton applies in the present case. However, Appellant, citing U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), argues that the existence of probable cause independent of that supporting Jackson’s arrest is necessary for the validity of the search of the automobile. Appellant’s reliance on Ross is misplaced as it speaks only to the issue of probable cause to search in the absence of an alternate justification. Belton specifically provides that a custodial arrest based on probable cause is all the probable cause that is necessary to authorize a search incident to that arrest. Id. at 460-461, 101 S.Ct. at 2864. Moreover, in adopting Belton, supra, this Court, in Commonwealth v. Henry, 358 Pa.Super. 306, 517 A.2d 559 (1986), applied this principle to Pennsylvania law by holding “a search incident to a lawful arrest required no other justification in order to be valid under Article I, Section 8 of the Pennsylvania Constitution.” Id. 517 A.2d at 564 (emphasis added).

Appellant also claims that the search is invalid because it was conducted out of curiosity or with a subjective expectation of finding drugs. Appellant frames his argument in terms of a “pretextual search”, which we find equally lacking in merit. This appears to be a novel question to Pennsylvania Appellate Courts. However, “pretext” arguments have been consistently rejected when raised with regard to police conduct surrounding an arrest. When facing the question of whether or not an arrest was reasonable, the United States Supreme Court has expressed that “[w]hether a Fourth Amendment violation has occurred, ‘turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,’ and not on the officer’s actual state of mind at the time of the challenged action was taken.” Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1722-23, 56 L.Ed.2d 168 (1978). (Emphasis added). See also United States v. Vilamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22; Commonwealth v. Williams, 390 Pa.Super. 493, 506 and n. 6, 568 A.2d 1281, 1287, and n. 6 (1990) (review of an officer’s decision to arrest is limited to an objective assessment of the probable cause to arrest in light of the circumstances confronting the officer at the time, and as such an officer’s uncommunicated intent to do an illegal act is irrelevant). Cf. United States v. Trigg, 878 F.2d 1037 (7th Cir.1989) (so long as police are doing no more than they are legally permitted and objectively authorized to do, an arrest is constitutional).

We find the logic underlying the above cited authority equally applicable to the facts of this case. Our review of Officer McKenith’s decision to search the automobile is limited to an objective assessment of the probable cause justifying such a search, as determined by the attendant circumstances confronting the officer at the time. We have already determined that the search of the automobile was valid, based on sufficient probable cause stemming from Jackson’s arrest. The legality of the search which followed Jackson’s arrest is not vitiated simply because the officer thought he would find something other than what was ultimately recovered. The officer was free to search the automobile regardless of what he subjectively expected to discover. See U.S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Commonwealth v. Henry, supra.

The judgment of sentence is affirmed.

      . Appellant was granted permission to join in a pretrial motion, filed by Jackson, to suppress evidence seized from Jackson's automobile.

      . In reaching this conclusion, we note that the Appellant does not raise on this appeal the issue of whether probable cause existed to arrest co-defendant Jackson.

      . Our discussion is limited to the facts of this case. We express no opinion concerning the admissibility of the seized property had the facts demonstrated that the police engaged in a deliberate scheme to evade the requirements of the Fourth Admendment.


author: DEL SOLE, Judge:

text:
    578 A.2d 530
    Agnes HATFIELD and Herbert Hatfield, H/W, Appellants, v. CONTINENTAL IMPORTS, INC. and Martin Gross and M. Leonard Gross, Individually and Trading as Warehouse Imports and Talin Industria Arredmanti, S.P.A., Appellees. Appeal of CONTINENTAL IMPORTS, INC., and Martin Gross and M. Leonard Gross, Individually and Trading as Warehouse Imports, Appellants. Agnes HATFIELD and Herbert Hatfield, Her Husband, Appellants v. CONTINENTAL IMPORTS, INC. and Martin Gross and M. Leonard Gross, Individually and Trading as Warehouse Imports and Talin Industria Arredmanti, S.P.A.
    Superior Court of Pennsylvania.
    Argued May 1, 1990.
    Filed Aug. 10, 1990.

      Edward J. Marcantonia, Philadelphia, for appellant (at 132) and appellee (at 317).
    James L. Womer, Jr., Philadelphia, for appellees (at 132) and appellants (at 317).
    Raymond J. Quaglia, Philadelphia, for Talin, appellee.
    Before DEL SOLE, JOHNSON and HOFFMAN, JJ.
   DEL SOLE, Judge:

Following this court’s grant of permission to take an interlocutory appeal, these appeals were filed challenging a trial court order which determined that it was appropriate for a settlement agreement to be brought into evidence at trial. We reverse.

This action was initiated by Agnes and Herbert Hatfield seeking to recover damages which were alleged to be a result of injuries Mrs. Hatfield sustained to her back following a fall from a chair which suddenly collapsed. The Hatfields set forth causes of action in negligence and products liability against Continental Imports Inc., and Marvin Gross and Leonard Gross individually and trading as Warehouse Imports (hereinafter called original defendants.). Original defendants subsequently joined as an additional defendant, Talin Industria Arredamenti, an Italian manufacturer, (hereinafter Talin).

The day before trial was scheduled to begin Talin presented a motion in limine to the court, seeking permission to introduce a settlement agreement and release into evidence. This agreement entered into between the Hatfields and the original defendants provided in part:

In addition to the foregoing, the plaintiffs also agree to pursue an action against Talin Industria Arredamenti. If the action against Talin Industria Arredamenti is successful the plaintiffs will return fifty-thousand ($50,000.00) dollars to releasees, free and clear of all fees and expenses except that releasors agree to pay 50% of the expenses of the litigation against Talin Industria Arredamenti, incurred after the signing of this release. If releasees are able to settle their claim against Talin prior to trial, they will return to the releasees twenty-five thousand ($25,000.00) dollars free and clear of all fees and expenses.

The trial court granted Talin’s motion, ruling that the release would be admissible at trial. Subsequently, the Hatfields and the original defendants sought, and were granted, permission to appeal this interlocutory order.

Our sole concern in this appeal is the admissibility of the agreement and release. The trial court ruled that it was admissible, accepting Talin’s argument that the release constituted a “Mary Carter Agreement”. The term “Mary Carter Agreement” was made popular after a Florida decision in Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla.App.1967). Such an agreement has certain classic features. They include a secret agreement which dictates that the defendant must remain in the action and will pay to the plaintiff a certain monetary recovery regardless of the outcome of the action and will have his or her own maximum liability diminished proportionately by increasing the liability of the other co-defendants. The trial court adopted the position taken in the later Florida case of Ward v. Ochoa, 284 So.2d 385 (Fla.1978), and found that such an agreement should be admitted into evidence by citing the following passage:

Secrecy is the essence of such an agreement because the court or jury as trier of the fact, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the non-signing defendant. Ward v. Ochoa, supra, at 387.

We decline to accept the position adopted by the trial court in this case. While the Appellants opine that the instant agreement is not a classic “Mary Carter Agreement” since the agreement was fully disclosed to the court, this jurisdiction has not considered or defined what is a “Mary Carter Agreement”. We will not undertake such consideration here or determine the effect such an agreement would have on this action because we find this case to be controlled by 42 Pa.C.S.A. § 6141(c). This statute provides:

Admissibility in evidence.—Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment referred to in subsections (a) [relating to personal injuries] and (b) [relating to damages to property] shall not be admissible in evidence on the trial of any matter.

This statute plainly states that settlements and releases shall not be disclosed to a jury. The only exception concerns a situation which is inapplicable here, where the settlement and release are pleaded as a complete defense. Although the settlement and release was not sought to be admitted as a complete defense to this action, the trial court believed a further exception should exist with respect to this settlement agreement which it found to be unduly prejudicial and biased against Talin. The trial court concluded that “in the interests of fairness and justice, to ensure that the jury fairly weighs the credibility of the witnesses, and properly determines liability, the jury must be apprised of the settlement agreement.” This ruling was contrary to the express mandate of § 6141(c) which prohibits admission of such an agreement.

Exceptions to the rule announced in § 6141(c) have been considered by the courts of this Commonwealth and rejected. In Weingrad v. Philadelphia Electric Co., 324 Pa.Super. 16, 471 A.2d 100 (1984), the Superior Court was ask to consider the propriety of a trial court’s decision to disclose to the jury the fact that one of the defendants had settled with the plaintiff prior to trial. Citing to § 6141(c), this court determined that the trial court erred in informing the jury of the settlement. In Weingrad the trial court ruled that evidence of the settlement was admissible by relying upon a Wisconsin decision, Hareng v. Blanke, 90 Wis.2d 158, 279 N.W.2d 437 (1979). The trial court found the Hareng decision persuasive since, as in Hareng, the settlement in effect “cause[d] a realignment of parties so that a settling defendant [became] an actual or potential ally of the plaintiff.” In such a factual situation the trial court believed the settlement should be disclosed to the jury. Weingrad v. Philadelphia Electric Co., supra, 471 A.2d at 103 fnt. 3. On appeal, the Weingrad court remarked that in its opinion “the public policy of promoting settlements would not be frustrated by a law similar to that in Wisconsin, which permits the admission of evidence of settlements when offered to prove bias or prejudice of a witness.” Id. However, the court noted that the Pennsylvania statute was “comparatively inflexible” and reversed the trial court’s decision to admit the settlement into evidence.

The Weingrad decision was relied upon by a panel of this court in Wilkerson v. Allied Van Lines, 360 Pa.Super. 523, 521 A.2d 25 (1987). As in this case, the non-settling defendant in Wilkerson sought to create an exception to the provision of § 6141(c). It maintained “that the statute should be interpreted to create an exception where a settlement may be relevant to attack the credibility of testimony given by a settling party by showing bias, prejudice or interest.” 521 A.2d at 30. The court rejected this claim and, referring to the “inflexibility” of the statute as recognized in the Weingrad decision, ruled that the trial court did not err when it refused to permit the jury to learn of the settlement.

Talin submits in this case that the settlement agreement and release entered into between the Hatfields and the original defendants differed from the settlement agreements at issue in the Weingrad and Wilkerson cases. Both the trial court and Talin believe that this agreement should be classified as a “Mary Carter Agreement”. Because it creates a “common interest in seeing that Talin, the non-settling defendant is found liable at trial”, the trial court found that it “undermines the adversary nature and integrity of the proceedings.”

The trial court’s rationale is grounded on the premise that an agreement such as this should be viewed by the jury to enable them to weigh the credibility of the witnesses and their respective interests in the outcome of the cases. These precise arguments concerning bias, prejudice and interest have been rejected by the courts in Weingrad and Wilkerson as exceptions to the rule set forth at 42 Pa.C. S.A. § 6141(e).

We conclude the outcome of this decision is mandated by the language of 42 Pa.C.S.A. § 6141(c) and the cases which interpret it to be without further exceptions. Accordingly, we reverse the trial court’s order which granted Talin’s motion in limine to introduce into evidence the settlement agreement and release.


author: CAVANAUGH, Judge:

text:
    578 A.2d 532
    CHURCHILL CORPORATION, Appellant, v. THIRD CENTURY, INC., A/K/A Chase Third Century Leasing Company, Inc., Appellee. Benson FISHMAN, Individually and Transmedia, Inc., D/B/A Professional Marketing Advisors, Appellees, v. THIRD CENTURY, INC. A/K/A Chase Third Century Leasing Company, Inc., Appellant.
    Superior Court of Pennsylvania.
    Argued April 19, 1990.
    Filed Aug. 15, 1990.

      John F. Peoples, Broomall, for Churchill Corp. and Fish-man, et seq.
    Michael Coughlin, Blue Bell, for Third Century, Inc.
    Before CAVANAUGH, ROWLEY and HUDOCK, JJ.
   CAVANAUGH, Judge:

This consolidated appeal involves two cases in which small Pennsylvania companies who had each leased a single office machine from Chase Third Century Leasing Co., Inc., a Missouri corporation doing business in Pennsylvania, sought to enjoin that company from bringing suits against them in a rural Missouri county. The Courts of Common Pleas in Philadelphia and Montgomery counties reached inconsistent decisions in these factually similar cases. After an extensive review of applicable Pennsylvania, Missouri, and federal law relating to jurisdiction and due process, choice of law, and the enforceability of forum selection clauses, we conclude that the Court of Common Pleas of Philadelphia County was correct in enjoining Third Century from pursuing its Missouri suit and that the Court of Common Pleas of Montgomery County erred in not doing the same. Therefore the injunction entered September 13, 1989 in the Philadelphia (No. 2676 Philadelphia 1989) case is affirmed and the March 8, 1989 denial of the injunction in the Montgomery County case (No. 961 Philadelphia 1989) is reversed and the case remanded with instructions.

The facts of each case are as follows. Plaintiff-appellant in the Montgomery County case is Churchill Corporation, a Pennsylvania corporation doing business within the state. Churchill entered into a contract with Chase Third Century. Churchill did not seek out Chase but rather was induced to sign the lease through an office equipment dealer, Select Copy, which secured financing for a facsimile machine through Chase. Churchill used the facsimile machine owned and leased by Chase for a few months until it failed to operate properly. For some time after the machine ceased to function properly, Churchill continued to make payments but when the machine could not be fixed, Churchill ceased to make payments and Chase repossessed the machine. Thereafter, Chase sought to recover the remaining payments on the lease after giving Churchill a small credit.

Chase brought an action for $1,700.00, the sum total of the remaining payments under the lease minus the credit, in the Circuit Court of Randolph County, MO, pursuant to a boilerplate forum selection clause appearing on the reverse side of the lease. That clause stated that jurisdiction would be deemed proper in the Missouri courts and that venue would lie in the Circuit Court of Randolph County. In addition, the lease contained a choice-of-law provision stating that Missouri law would govern the contract and that the contract would be deemed executed in Missouri, regardless of where it was signed.

It is not disputed that Churchill’s president, who signed the lease, never read the forum selection clause and was unaware of its import. The court of Randolph County is located in Moberly, MO, which is sixty miles north of Jefferson City and is accessible only by automobile. Indisputably, it would have cost Churchill far more to defend against the Missouri suit due to the enormous transportation expenses than to have satisfied a default judgment against it. Churchill chose not to defend the suit, but instead brought an action in the Court of Common Pleas of Montgomery County to have Chase dissolve any judgment and dismiss the action. In the alternative, Churchill sought to restrain Chase from docketing a default judgment in the Court of Common Pleas of Montgomery County.

On December 28, 1988, Churchill obtained a temporary restraining order signed by the Hon. Albert Súber. On January 6, 1989, the Hon. Paul Tressler presided over a hearing and overturned the temporary restraining order. By order entered March 8, 1989, the court refused to issue a preliminary injunction and dismissed the action with prejudice for lack of personal jurisdiction over the defendant Chase. Churchill filed this timely appeal.

In the Philadelphia County case, the defendant-appellant is Chase Third Century and appellees are Benson Fishman and Transmedia, Inc., doing business as Professional Marketing Advisors [collectively referred to as Transmedia]. Transmedia is a Pennsylvania corporation which conducts no business in the state of Missouri.

In June 1986, Chase and Transmedia entered into a lease for a Minolta copying machine. The machine delivered to Transmedia was in fact a Royal copier. Transmedia did not seek out Chase but rather leased the machine from Chase, for financing purposes, at the suggestion of the dealer of the machine, American Duplicating, Inc. As in the other case, the signatory, Mr. Fishman, never read the forum selection clause, which appeared on the back of the lease. (It should be noted that in both leases, the lessee’s signature appears on the bottom of the front side of the lease; however, there is a notation on the front to see the reverse side for additional terms and conditions.)

The copier machine failed to operate properly. Investigation revealed that the serial number on the machine was not genuine and that the machine, though represented to be new, was actually used. Transmedia made twelve lease payments before it ceased to make further payments. Chase repossessed the machine and thereafter filed suit in the Circuit Court of Randolph County for the remaining payments on the lease. In its Missouri petition [equivalent to a complaint under Pennsylvania law], Chase did not set forth any credit due to Transmedia for the value of the repossessed machine.

After being served with the Missouri petition, Transmedia sought injunctive relief in the Court of Common Pleas of Philadelphia County. Chase filed a petition to remove the case to the U.S. District Court for the Eastern District of Pennsylvania; it was denied and the case remanded back to Philadelphia. Chase filed preliminary objections for lack of jurisdiction by reason of the forum selection clause contained in the lease. The court denied the preliminary objections and granted injunctive relief following a hearing on the matter. Chase has appealed from the injunction which prevents it from continuing prosecution of its suit in Randolph County.

In these cases, we must determine, first, whether the Pennsylvania courts have jurisdiction to hear these cases and, second, whether the granting of injunctive relief is proper under the circumstances. We must do so by reference to the appropriate law, since this case involves choice-of-law issues as well. Finally, constitutional considerations of due process must inform our decision since the fundamental question in this appeal is whether Churchill and Transmedia, by virtue of each having leased a single office machine, should be required to defend suits brought in Missouri, a forum with which neither has significant ties.

Chase argues that Pennsylvania courts do not have jurisdiction to hear these cases. It contends that the forum selection or “consent-to-jurisdiction” clause appearing in the form lease deprives any court except the Circuit Court of Randolph County of jurisdiction and venue to hear cases arising under the lease.

However, even if we momentarily assume the validity of the forum selection or consent-to-jurisdiction clause to create personal jurisdiction in the Missouri courts over Churchill and Transmedia, it does not necessarily follow that the clause operates to deprive Pennsylvania courts of jurisdiction as well. In Central Contracting v. Youngdahl, 418 Pa. 122, 209 A.2d 810 (1965), the Pennsylvania Supreme Court reviewed the law relating to contractual forum selection and found that it would be against public policy where the parties are brought before a competent tribunal to allow an agreement made in advance of the dispute to oust the tribunal's jurisdiction. Also, In Rea’s Appeal, 13 W.N.C. 546 (1883); Healy v. Eastern Building and Loan Association, 17 Pa.Super. 385 (1901) (plaintiff’s agreement to sue only in a New York county could not deprive Pennsylvania courts of their jurisdiction to hear the case). Therefore, the Court of Common Pleas of Montgomery County erred in finding that the lease deprived that court of its jurisdiction to hear the case.

Pennsylvania does have personal and subject matter jurisdiction over these disputes. Chase Third Century is a corporation doing business nationwide and licensed to do business in Pennsylvania. It negotiates and contracts to finance and lease office equipment to Pennsylvania companies and individuals for the purpose of realizing pecuniary benefit. Therefore, Chase is amenable to suit under the Pennsylvania long-arm statute, which appears at 42 Pa.C.S.A. § 5322. See, McCrory Corp. v. Girard Rubber Corp., 459 Pa. 57, 327 A.2d 8 (1974).

The exercise of jurisdiction by Pennsylvania is also constitutional under federal law: Chase has purposefully availed itself of the privilege of conducting activities within the Commonwealth thus invoking the benefits and protections of its laws. E.g., Burger King v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

Next, we must determine whether Pennsylvania should decline to exercise jurisdiction because of the forum selection clause. A Pennsylvania court should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation. Youngdahl, supra. An agreement is unreasonable where its enforcement would, under all circumstances existing at the time of litigation, seriously impair plaintiffs ability to pursue its cause of action. Id. Mere inconvenience or additional expense is not the test of unreasonableness if the plaintiff received under the contract consideration for its agreement to litigate in a specified forum. See, id. If the agreed upon forum is available to plaintiff and said forum can do substantial justice to the cause of action then plaintiff should be bound by its agreement. Id. See also, Continental Bank v. Brodsky, 225 Pa.Super. 426, 311 A.2d 676 (1973) (forum selection or consent to jurisdiction by prior consent may be enforced when the parties have dealt on an equal basis and there is nothing unfair about their agreement).

Applying these factors to the instant cases, we find that Pennsylvania should not decline to exercise jurisdiction. The requisites for the enforcement of the forum selection clause under the circumstances of these cases at the time of litigation are not present. Enforcement of forum selection under these leases would also offend notions of due process, see infra, and is therefore per se unreasonable.

First, we note that enforcement of these clauses would seriously impair Churchill’s and Transmedia’s ability to pursue their defenses. Where it is more expensive to defend a cause of action than to pay a default judgment solely because of the location in which the matter is being adjudicated, litigation in the foreign forum is no longer a matter of mere inconvenience or additional expense; rather it rises to the level of serious impairment of the parties’ ability to defend against the action.

Second, there is absolutely no indication that Churchill or Transmedia received any consideration for agreeing to the forum selection clause. The testimony was uncontroverted that neither entity’s representative read or was aware of the clause in question. The forum selection clause was simply not an aspect of the agreement for which the parties bargained. Moreover, the forum selection clause is unfair and arguably unconscionable as well.

Third, the “agreed upon” forum cannot do substantial justice because no resolution of the case in Missouri could compensate Churchill and Transmedia for the extraordinary expenses they will incur litigating in a forum to which they have virtually no connections whatsoever.

Having determined that the lower courts should have exercised jurisdiction to hear these cases, we must still determine whether the standards for preliminary injunctions have been met and whether the injunctions should issue. Churchill and Transmedia are requesting the injunctions based on the Missouri court’s lack of jurisdiction to hear these cases, the unfairness and inconvenience of forcing Churchill and Transmedia to litigate in the foreign forum, and the immediate and irreparable harm which the parties will suffer if Chase is not enjoined from pursuing its actions in the Randolph County Circuit Court. Before we decide whether the standards for the issuance of a preliminary injunction against Chase have been met, we must address the underlying jurisdictional concerns.

We have already determined that Pennsylvania has jurisdiction over these cases. However, it must be borne in mind that these cases were initially filed in the Circuit Court of Randolph County. Normally, we would defer to the jurisdiction of our sister state where the cases were first filed. Nonetheless, Churchill and Transmedia argue that Missouri lacks jurisdiction and that they will be seriously prejudiced if the cases are allowed to proceed in that forum, where raising a defense would cost more than paying a subsequent default judgment.

The first issue, then, is whether the forum selection clauses, while not ousting Pennsylvania jurisdiction, have nonetheless conferred personal jurisdiction on the Missouri courts so that the actions, once having been brought there, should be heard there. We are of the opinion that Missouri lacks jurisdiction pursuant to the forum selection clause.

The parties have briefed the issue of whether this court should apply Missouri or Pennsylvania law to determine the validity of the forum selection clause in the lease. The form lease contains a provision that Missouri law will govern the contract. Pennsylvania courts will uphold choice-of-law provisions in contracts to the extent that the transaction bears a reasonable relation to the chosen forum. 13 Pa.C.S.A. § 1105(a). Ordinarily the law chosen must be that of a jurisdiction where a significant enough portion of the making or performance of the contract is to occur or occurs. Uniform Commercial Code Comment, 1972.

We are not entirely certain that the choice-of-law provision in this contract is valid. The choice-of-law clause, like the forum selection clause, was not bargained-for by Churchill or Transmedia. Nor do the contracts, which were negotiated, signed and performed in Pennsylvania, bear a significant reasonable relation to Missouri.

However, it is not necessary for us to address the choice-of-law issue for two reasons. First, Churchill and Transmedia are amenable to the application of Missouri law. Presumably Chase is as well, since it was the party responsible for drafting the Missouri choice-of-law provision into the equipment leases. Also, Chase has cited certain Missouri cases on the subject in its brief. Second, our research discloses that Pennsylvania and Missouri law relating to the enforcement of forum selection clauses is very similar.

We have alréady discussed Pennsylvania law relating to contractual forum selection. Missouri courts have evinced the same reluctance to enforce these clauses where they are unfair or unreasonable.

As recently as 1981, Missouri appellate courts held that forum selection clauses were void as being against public policy. State of Missouri ex. rel. Gooseneck Trailer Manufacturing Co., Inc. v. Barker, 619 S.W.2d 928 (Mo.App.1981). Although several decisions by federal district courts in Missouri and the Eighth Circuit Court of Appeals enforced forum selection clauses, these decisions explicitly relied on federal law, see, e.g., Sun World, Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066 (8th Cir.1986), and are not binding upon Missouri courts as a matter of state law.

Since 1981, Missouri appellate decisions have allowed a party to consent to the jurisdiction of a given court provided the forum selection clause is not unfair or unreasonable and comports with applicable due process standards. State ex rel. Marlo v. Hess, 669 S.W.2d 291 (Mo.App.1984); Chase Third Century Leasing v. Williams, 782 S.W.2d 408 (Mo.App.1989). A forum selection clause “could be unreasonable if it resulted in undue hardship, such as a necessity to travel or transport witnesses such a distance that expenses would render access to the courts impractical. ” Marlo, supra, at 294. Such a clause “could be unfair if imposed upon one not in a position to negotiate because of the superior bargaining power of the other party, as in the case of ... financial credit and small loan agreements or adhesion contracts.” Id. (Emphasis ours.)

It is undisputed that transportation and witness expenses for Churchill and Transmedia would render access to the Circuit Court of Randolph County impractical. It would simply cost less to pay the costs of a default judgment. Moreover, the contracts containing the clause are small loan financing agreements drawn up by a large and established company which possessed superior bargaining power and resources and, in effect, dictated the terms of the agreement by using a form lease. In contrast to the Williams case cited by Chase, Churchill and Transmedia presented specific evidence to support their allegations of unfairness and unreasonableness in the enforcement of the forum selection clause.

Having concluded that the forum selection clause could not confer jurisdiction on the Missouri court under either Missouri or Pennsylvania law, we turn to Chase’s assertions that even absent the clause, Missouri courts have jurisdiction over Churchill and Transmedia by virtue of Missouri’s long-arm statute. That statute appears at Mo.Rev.Stat. § 506.500 and confers jurisdiction over, inter alia, persons transacting any business within the state or making contracts within the state. Naturally, jurisdiction must also comport with due process under the federal constitution.

Decisions by Missouri appellate courts are instructive. In M & D Enterprises, Inc. v. Fournie, 600 S.W.2d 64 (Mo.App.1980), the Missouri Court of Appeals determined that Missouri did not have jurisdiction over a Delaware corporation with its principal place of business in Illinois which had purchased certain material from a Missouri corporation. Through a series of telephone calls, Fournie ordered and agreed to pay for materials from M & D in Missouri for use in Illinois. The court decided that the telephone calls made from Illinois by agents of the Delaware corporation were not sufficient minimal contacts with Missouri to invoke jurisdiction under the Missouri long-arm statute. The court said:

Fournie ... was a buyer, not a seller. It did not enter the state of Missouri or initiate a flow of commerce into Missouri.- The flow of commerce was initiated by M & D.... To permit Missouri courts to have jurisdiction in this case would amount to an open invitation to Missouri residents to go into other states, solicit business as an aggressor, and then, as a practical defense to any claim asserted by a nonresident buyer that the product sold was defective, drag the buyer into Missouri courts, as a strategic counter-move, through the use of § 506.500. Such a practice would violate the traditional notions of fair play and substantial justice, as mandated by International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ]. We cannot believe that the legislature, in enacting § 506.500 intended that it would apply to the factual situation before us.

600 S.W.2d at 69.

Scullin Steel Company v. National Railway Corp., 676 F.2d 309 (8th Cir.1982), a federal case which reviewed case law interpreting Missouri’s long-arm statute, is virtually on all fours with the instant cases. In Scullin, an officer of Scullin, a Delaware corporation with its principal place of business in Missouri, went to Philadelphia to negotiate a contract of sale with National Railway, a South Carolina corporation with its principal place of business in Pennsylvania. Scullin prepared the agreement and it was executed by National Railway in Philadelphia and by Scullin in Missouri. No National Railway employee visited Missouri in connection with negotiations or performance of the agreement. All payments were sent by National Railway to Scullin in Missouri.

The court found that the statutory requirement of transacting any business within Missouri was not satisfied. It relied on the fact that all negotiations were conducted in Pennsylvania, that National Railway had no office, personnel, real property, or agent in Missouri, and that National Railway’s sole contacts to Missouri were through telephone calls and the use of the mails. See also, Breiner Equipment Co. v. Dynaquip, Inc., 539 F.Supp. 204 (E.D.Mo.1982) (use of telephone calls and the mails alone were insufficient to subject defendant to personal jurisdiction, even where defendant conducted other business in the jurisdiction which was unrelated to the cause of action).

The Scullin court also found alternatively that minimum contacts were not present to justify the exercise of personal jurisdiction. “ ‘Merely entering into a contract with a forum resident does not provide the requisite contacts between a nonresident defendant and the forum state.’ ” 676 F.2d at 313, quoting Iowa Electric Light and Power Co. v. Atlas Corp., 603 F.2d 1301 (8th Cir. 1979).

Chase argues that the Missouri long-arm statute is intended to give the Missouri courts jurisdiction to the extent permissible under the due process clause of the federal constitution. In claiming that the Missouri long-arm statute and due process permit Missouri to exercise jurisdiction, Chase has argued that these cases are similar to Burger King, supra, in which the United States Supreme Court upheld a forum selection clause which was part of a franchisor-franchisee agreement. Assuming that Missouri courts are statutorily permitted to exercise jurisdiction to the limits of due process, we think that Burger King is sufficiently distinguishable from the present case to invalidate Chase’s argument.

A franchisor-franchisee agreement involves a long-term business relationship. The agreement’s terms encompass virtually every aspect of the franchisee’s business. Given the extent to which the franchisor is involved in the franchisee’s business and the numerous and significant contacts between them, it is not unreasonable to expect that the franchisee may be hailed into court where the franchisor is domiciled. Contrasting the instant cases, we note that the only contact which Churchill and Transmedia had with the Missouri corporation was the short-term lease of a single piece of office equipment. Were we to find minimum contacts in this case, we would completely eviscerate the requirement that personal jurisdiction be consistent with traditional notions of fair play and substantial justice.

Having found that Missouri lacks personal jurisdiction over Churchill and Transmedia, we turn to the propriety of granting an injunction to prevent Chase from prosecuting its cases in the Missouri courts. The purpose of a preliminary injunction is to preserve the status quo as it exists or existed before the acts of which the plaintiff complains. Three Co. Services v. Philadelphia Inquirer, 337 Pa.Super. 241, 486 A.2d 997 (1985). The plaintiff must prove that the injunction is necessary to prevent immediate and irreparable harm. Id. An injunction is appropriate where the loss that would be incurred pending final adjudication would not likely be compensable by an award of money damages. Id.

In enjoining a foreign suit, the court does not proceed upon any claim to stay proceedings in the courts of another state or jurisdiction, but upon the grounds that the person against whom the restraining order is entered is subject to the power of the restraining court. Baltimore & O.R.R. Co. v. Halchak, 71 F.Supp. 224 (W.D.Pa.1947). We have already established that Chase is clearly subject to the lower courts’ jurisdiction.

Irreparable and immediate harm to Churchill and Transmedia would result from the entry of default judgments against them by a forum which lacks personal jurisdiction over them and which is so grossly inconvenient that it would be a breach of due process to require them to defend there or even to enter special appearances to contest jurisdiction. As we have noted previously, if it were permitted to continue suit in Missouri, Chase would be able to force Churchill and Transmedia into default judgments, since the amount of judgment would be less than the costs of mounting a defense. In practical terms, a default judgment could lead to attachment of Churchill’s or Transmedia’s property in Pennsylvania while an attempt is made to attack collaterally the jurisdiction of the Missouri court. (Moreover, once judgment has been entered, it is extremely difficult to convince a court in a sister state that the court rendering judgment lacked jurisdiction.)

On the other hand, the inconvenience to Chase in having to pursue suit in Pennsylvania rather than Missouri is minimal. Chase carries on business within Pennsylvania on a regular basis and retains local counsel. It is no stranger to the Pennsylvania court system. The equities of these cases clearly dictate that Chase be enjoined from pursuing further action against Churchill and Transmedia in the courts of Missouri.

Affirmed as to the order entered by the Court of Common Pleas of Philadelphia, reversed as to the order entered by the Court of Common Pleas of Montgomery County. The Montgomery County case (No. 961 Philadelphia 1989) is remanded for entry of an order enjoining Chase from further action against Churchill in the Missouri courts and preventing Chase from docketing any default judgment entered in Missouri against Churchill in the courts of this Commonwealth.

Jurisdiction relinquished.

      . In both the Churchill and Transmedia cases, the leases were actually negotiated and executed in Pennsylvania.

      . Youngdahl also stands for the proposition that a court in which jurisdiction and venue are proper may nonetheless decline to adjudicate a cause of action when the parties have freely agreed that litigation shall be conducted in another forum, provided such agreement is not unreasonable at the time of litigation. 209 A.2d at 816. The application of this rule to the case at hand will be discussed infra.