author: WICKERSHAM, Judge:

text:
    436 A.2d 994
    William TREADWAY, Appellant, v. EBERT MOTOR COMPANY.
    Superior Court of Pennsylvania.
    Argued March 2, 1981.
    Filed Oct. 30, 1981.
    Petition for Allowance of Appeal Denied March 25, 1982.

      Paul Sandler, Philadelphia, for appellant.
    Leslie A. Miller, Philadelphia, for appellee.
    Before CERCONE, President Judge and WICKERSHAM and BROSKY, JJ.
   WICKERSHAM, Judge:

Appellant, William Treadway, filed a Complaint in Trespass against defendant, Ebert Motor Company, for injuries and damages sustained as a result of a fall on February 1, 1975 at defendant’s premises. Appellant alleged, inter alia, that the defendant failed to use due care in installing a metal plate over a ditch outside of defendant’s doorway which the defendant knew, or should have known, would cause an unreasonable risk of harm to the plaintiff and in addition, that the defendant failed to remove wet substances, including snow, which completely covered the plate and created a slippery surface. Furthermore, it was alleged that the defendant was under a duty of reasonable care to warn the invitee of any dangerous or unsafe condition.

The case was tried before the Honorable Joseph H. Stanziani and a jury on March 5 and 6,1980. At trial, defendant admitted that it owned, controlled and possessed the property and was under a duty to maintain said premises. Additionally, defendant admitted that it installed a metal plate approximately ten feet by two feet at or near a doorway used to enter and exit the defendant’s shop. Moreover, the plate was installed several days before appellant’s fall and the purpose of the steel plate was to temporarily cover a worksite ditch while pipe was being laid. Record at 70 71.

At trial, the appellant testified that on February 1, 1975 he was employed by Contract Service Company as a mechanic and truck driver. Upon instructions from his employer, he drove a tractor to the defendant, Ebert Motor Company’s place of business in Lansdale, Pennsylvania, to have the defendant inspect the tractor. Appellant also testified that it had been snowing on his way to work that morning, but that it had stopped by the time he left Contract Service Company to go to Ebert Motor Company, which was approximately 4, 5 or 6 miles away. He testified that the ground and roadways were covered by a layer of snow.

Upon arrival at the defendant’s place of business, William Treadway parked the tractor in front of a big garage door and walked to the office entrance and after having a discussion with Bob Yoder, the shop foreman, with respect to the tractor, he and Yoder went to visually inspect the tractor. They walked through the interior of the building in order to exit through a small doorway which was placed within the larger garage door.

Q Had you ever used that door before?
A Yes.
Q Did anyone ever tell you not to use that door before?
A No.
Q Did anyone ever tell you on the morning of this incident that you should not walk out through that door?
A No.
Q Were there any signs posted which said you shouldn’t use that door?
A No, there weren’t.
Q Were there any signs posted, Mr. Treadway, that there was any type of dangerous condition outside the door?
A No.
Q Mr. Treadway, did you attempt to walk through that door in order to get to where your tractor was?
A Yes, I did.
Q And, what happened, Mr. Treadway, when you walked out the door?
A Well, you have to step over about a six inch piece of the door.
Q I’m sorry, I didn’t mean to interrupt you, you were talking loud. When you say a six inch piece of door—
Q Would you describe the six inch piece that you just referred to?
A The little door don’t go clear to the ground.
Q What is below that?
A Part of the big door.
Q Now, what happened when you attempted to go through the door, Mr. Treadway?
A I stepped out the door and slid on the snow and fell.
Q When you stepped out the door what step were you at when you slipped?
A I had my foot out, I believe.
Q Which step?
A It was my first step out and I fell down and hit my knee.
Q Now, can you describe how you fell, what the surface was underneath you?
A I fell down and hit the ground, that’s all.
Q Can you describe the surface under you and what you felt?
A After I fell I looked and seen there was a snow covered plate there.
Q Can you describe the type of plate that was there?
A It was a wet snow and it was slippery from the wet snow.
Q Now, anytime that you walked through that door before was there ever a plate?
A No.
Q About how much snow would you say accumulated on that plate?
A Just enough to cover everything, the ground. Even the road was covered.
Q Can you describe how you fell?
A I put my hand on the door to open it—. . . And held the door open and I stepped out. And as soon as I stepped out, I slid and I fell and my knee hit the ground.

Record at 24-28.

At the close of plaintiff’s evidence relative to liability, the trial judge granted defendant’s motion for nonsuit, later affirmed by the Montgomery County Court En Banc. This appeal followed.

In McKenzie v. Cost Brothers, Inc., 487 Pa. 303, 307, 409 A.2d 362, 364 (1979), Mr. Justice Nix speaking for our supreme court said:

In reviewing the validity of the entry of a compulsory nonsuit, plaintiff must be given the benefit of every fact and reasonable inference arising from the evidence. See Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977); Forry v. Gulf Oil Corp., 428 Pa. 334, 237 A.2d 593 (1968); Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 219 A.2d 676 (1966). All conflicts in the testimony must be resolved in plaintiff’s favor and the entry of the compulsory nonsuit is only supportable in a clear case where the facts and circumstances have as the only conclusion the absence of liability. See Francioni v. Gibsonia Truck Corp., supra; Antonson v. Johnson, 420 Pa. 558, 218 A.2d 123 (1966); Jurich v. United Parcel Service of New York, 239 Pa.Super. 306, 361 A.2d 650 (1976).

In its opinion under date of July 9, 1980, the Montgomery County Court En Banc, holding that the motion for nonsuit was properly granted said:

Plaintiff now argues that he presented two alternative theories of liability. First, that the defendant was negligent in failing to remove the snow. Second, that the use of the metal plate itself was dangerous and when wet from snow, it created an exceptionally slippery and dangerous condition.
With respect to the first theory (when generally slippery conditions prevail), plaintiff must prove: (1) that snow and ice had accumulated in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians; (2) that the property owner had notice, actual or constructive, of the existence of such conditions; and (3) that it was the dangerous accumulation of snow which caused the plaintiff to fall. Wilson v. Howard Johnson Restaurant, 421 Pa. 455 [219 A.2d 676] (1966), Rinaldi v. Levine, 406 Pa. 74 [176 A.2d 623] (1962). Plaintiff testified there was just enough snow to cover the ground; there were no ridges or elevations of snow or ice which had been allowed to accumulate.
With respect to the second theory, there is no evidence in the record to support plaintiff’s conclusions that the metal plate itself created an especially dangerous condition, or that the plate when covered with snow presented a surface extremely more slippery than the surrounding area. All we know about the plate is that it was 10 feet by 2 feet and it was covering an open ditch.
Based on the evidence presented in plaintiff’s case-in-chief, we find the plaintiff failed to establish a prima facie case of negligence against the defendant. Therefore, the motion for non-suit was properly granted.

Lower court opinion at 3-4.

Appellant maintains that defendant’s failure to remove the snow was merely a tangential aspect of his case and that the primary theory upon which his cause of action was based was defendant’s failure to exercise due care in installing a metal plate at the foot of an exit to defendant’s premises which, when hidden and made slippery by a layer of wet snow, caused an unreasonable risk of harm which required, at a minimum, reasonable care to warn invitees. As to this theory, appellant contends that the court en banc failed to give him the benefit of every fact and inference arising from the evidence by concluding that all that it knew about the metal plate was that it is two feet by ten feet and that it was covering an open ditch, and that there was no evidence that the plate itself created an especially dangerous condition or that the plate when covered with snow presented a surface extremely more slippery than the surrounding area.

“The applicable principles of law with respect to the question of negligence are well settled. Plaintiff was a business visitor upon the premises of defendant, which owed her the duty of keeping the premises reasonably safe and of correcting any unsafe condition which was discoverable by the exercise of reasonable care and diligence. Defendant, however, was not an insurer, and therefore the mere happening of an accident did not impose liability upon it. Parker v. McCrory Stores Corp., 376 Pa. 122 [101 A.2d 377]. In order for plaintiff to recover, it was incumbent upon her to prove that the condition of which she complained was the result of the direct negligence of an employee of defendant, or that defendant had sufficient constructive notice of the defect to have enabled it to correct that defect. Lanni v. Penn[sylvania] R. Co., 371 Pa. 106 [88 A.2d 887].”

Hess v. Sun Ray Drug Co., 387 Pa. 199, 200-201, 127 A.2d 699, 700-701 (1956)(quoting from the opinion of the lower court).

In Crotty v. Reading Industries, Inc., 237 Pa.Super. 1, 7-8, 345 A.2d 259, 262-64 (1975), we said: to feudalism with the relatively recent development of the law of negligence, the limited liability of a possessor of land depending upon the status of the entrant remains in the majority of jurisdictions a viable concept. See, e. g., Annot., Modern Status of Rules Conditioning Landowner’s Liability Upon Status of Injured Party As Invitee, Licensee, or Trespasser, 32 A.L.R.3d 508 (1970); 2 F. Harper and F. James, The Law of Torts, §§ 27.1- .21 (1956). The landowner’s duty of protection toward a business visitor is the highest duty owed to any entrant upon the land. The rule as stated in the early English case of Indermaur v. Dames, L.R. 1 C.P. 274, 35 L.J.C.P. 184, aff’d, L.R. 2 C.P. 311, 36 L.J.C.P. 181 (1866) places the possessor of land under an affirmative duty to protect the business visitor not only against dangers of which he knows but also against those which with reasonable care he might discover. The occupier of the premises ordinarily owes the business visitor ‘not only the duty not to injure him by unreasonably dangerous conduct while he is upon the premises, but also the affirmative duty to use reasonable care to discover unreasonably dangerous conditions of the premises and either put the premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation or warn him of the danger.’ Annot, supra at 518 (footnotes omitted).

The duty of a possessor of land towards a third person entering the land has been historically measured by the status of the entrant at the time of the accident. Resulting from a mixture of a property- law tracing its heritage

The duty of inspection distinguishes the obligation of the possessor owed to business visitors from the obligation owed to licensees. See generally Annot, supra. A visual inspection has long been required for the protection of business visitors; see, e. g., Argo v. Goodstein, [438 Pa. 468, 265 A.2d 783 (1970)] supra; Miller v. Hickey, [368 Pa. 317, 81 A.2d 910 (1951)] supra, (duty to inspect fire escape); Travers v. Delaware County, 280 Pa. 335, 124 A. 497 (1924) (bridge); and indeed, the duty may go beyond a mere visual inspection. Starke v. Long, [221 Pa.Super. 338, 292 A.2d 440 (1972)] supra, (jury may determine whether more than a visual inspection was reasonably required). . . .

The occupier’s duty is one of due care under all the circumstances. That duty includes the duty to inspect the premises and to discover dangerous conditions. Durning v. Hyman, 286 Pa. 376, 133 A. 568 (1926); and the duty to use care not to injure a business visitor by negligent activity. Restatement (Second) of Torts, § 341 A (1965).

Instantly, the lower court failed to consider evidence that the location of the steel plate was perpendicularly adjacent to a door which was used for ingress and egress. The evidence indicated that in order to exit from the door it was necessary to lift one’s foot over a six-inch piece of the garage door and step onto the wet metal plate which had been temporarily installed over a ditch. Furthermore, since the plate was outside the building it could not be observed by the unwary pedestrian until the door was open. Plaintiff’s testimony indicated that the plate was not visible, however, as it was completely hidden by a layer of snow.

The location of the plate was important because it was at a place which the defendant knew would be traveled by invitees. Indeed, it would be impossible not to step on the plate when exiting from that door. “In determining the extent of preparation which an invitee is entitled to expect to be made for his protection, the nature of the land and the purposes for which it is used are of great importance.” McKenzie v. Cost Brothers, Inc., supra, 487 Pa. at 309, 409 A.2d at 365 (quoting Restatement (Second) of Torts § 343, Comment (e) (1965)). Simply by where the plate was located, the risk of injury was increased.

The amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. If the danger becomes greater, the actor is required to exercise caution commensurate with it. W. Prosser, Handbook of the Law of Torts (4th ed. 1971) p. 180. McKenzie v. Cost Brothers, Inc., 487 Pa. 309, 409 A.2d at 365.

McKenzie v. Cost Brothers, Inc., supra, 487 Pa. at 309, 409 A.2d at 365 (quoting W. Prosser, Handbook of the Law of Torts (4th ed. 1971 at 180)).

The fact that the steel plate was not visible is important particularly in view of plaintiff’s undisputed status as a business invitee. An invitee is not required to be on alert to discover defects which are not obvious. The defendant had a duty to keep his premises safe for the plaintiff and to warn him of potential hidden perils which he knew or should have known of in the exercise of reasonable care. Stark v. Lehigh Foundries, 388 Pa. 1, 130 A.2d 123 (1957). An invitee or business visitor is entitled to rely on the assumption that such a duty has been performed. Katz v. John Wanamaker Philadelphia, Inc., 381 Pa. 477, 112 A.2d 65 (1955). The landowner’s duty of protection toward business visitors is the highest duty owed to any entrant upon land, and the landowner is under an affirmative duty to protect the business visitor not only against dangers which he knows, but also against those which with reasonable care he might discover. The business visitor enters landowner’s premises with implied assurance of preparation and reasonable care for his protection and safety while he is there. Crotty v. Reading Industries, Inc., supra.

From the testimony presented, it was a question for the jury to determine whether the metal plate combined with the wet snow created a dangerous condition which the defendant had a duty to render safe or to warn the plaintiff of its existence. It would be a most reasonable inference from the evidence that the commingling of the snow and metal plate produced a skidding surface. This is not a situation which would require expert testimony since the circumstances are familiar and determinable from the common denomination of every-day experience. Indeed, Burton v. Horn & Hardart Baking Co,, 371 Pa. 60, 64, 88 A.2d 873, 875 (1952); see also McKenzie v. Cost Bros. Inc., supra, 487 Pa. at 311-12, 409 A.2d at 366 (1979).

Expert testimony is inadmissible when the matter can be described to the jury and the condition evaluated by them without the assistance of one claiming to possess special knowledge upon the subject. Jacob v. City of Philadelphia, 333 Pa. 584, 5 A.2d 176; Miller v. City of Philadelphia, 345 Pa. 1, 9, 25 A.2d 185 (where this Court, speaking through Mr. Justice Linn, upheld the refusal of expert testimony of an architect regarding the unsafe maintenance and construction of a trail in Fairmont Park).

A theory similar to the plaintiff’s was advanced in Kuminkoski v. Daum, 429 Pa. 494, 240 A.2d 524 (1968). In Kuminkoski, the plaintiff sued a store owner for injuries sustained in a fall when exiting from the premises. The defendant had sprinkled his floor with sawdust, and the sawdust was tracked outside and fell on the steps. Unknown to the plaintiff, and without having a chance to become acquainted with that fact, some wood chips and fine gravel commingled with sawdust on the steps, to form an unfirm surface and the plaintiff slipped. The trial court entered judgment for the defendant, stating that the plaintiff did not meet its burden in establishing an unsafe condition. The Pennsylvania Supreme Court reversed. In its opinion, the supreme court cited the case of Katz v. John Wanamaker Philadelphia, Inc., supra, in which the trial court directed a verdict for the defendant where plaintiff had also fallen on slippery steps. In reversing the lower court in Katz v. John Wanamaker Philadelphia, Inc., supra, 381 Pa. at 481, 112 A.2d at 66-67, the court stated:

From the testimony of two women the jury could have found that there was a considerable quantity of dirt as well as water on the steps, and that the combination of the two can form a slimy and slippery condition. Plaintiff’s evidence must be considered in a light most favorable to her with the benefit of the inferences deduced from the testimony. So considered, we cannot say that plaintiff failed to make out the existence of an unsafe or dangerous condition.

In dismissing plaintiff’s second theory by stating that the plaintiff failed to present evidence that the plate when covered with snow presented “a surface extremely more slippery than the surrounding area,” the court en banc imposed a burden on the plaintiff which has no support in law. Plaintiff’s burden was only to establish a prima facie unsafe or dangerous condition, and, on appeal, we must resolve all conflicts in the evidence therein in his favor and give him the benefit of every fact and inference which may be reasonably deduced therefrom.

Significantly, in Bromberg v. Gekoski, 410 Pa. 320, 189 A.2d 176 (1963) our supreme court reversed a jury verdict for the defendants and ordered a new trial when the trial judge described a defective condition as “one that appears very, very dangerous.” Particularly pertinent to the case at bar, the court declared:

This, of course, was legally incorrect and placed too great a standard upon the plaintiffs in establishing the defendant’s culpability. Sidewalks must be so maintained that they will not present an unreasonable risk of harm to pedestrians. What constitutes such a condition depends upon all of the circumstances. It may generally be defined as one attended with an unreasonable risk of harm, one that is hazardous or unsafe or one that constitutes a danger to persons traveling thereon. It does not have to be such that is very very hazardous, very, very unsafe or very, very dangerous. See, Silberman v. Dubin, 155 Pa.Super. 3, 36 A.2d 854 (1944); McCracken v. Curwensville Boro., 309 Pa. 98, 163 A. 217, 86 A.L.R. 1379 (1932); Lawrence v. City of Scranton, 284 Pa. 215, 130 A. 428, 41 A.L.R. 454 (1925); Davis v. Shenandoah Borough, 273 Pa. 501, 117 A. 207 (1922); Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 623 (1962) (Court’s emphasis).

Id. 410 Pa. at 322-323, 189 A.2d at 177.

Furthermore, there is no requirement that the plaintiff make a comparative analysis of the “slipperiness” of a particular surface. In Loney v. Denenberg, 166 Pa.Super. 378, 71 A.2d 842 (1950) the plaintiff was injured when she slipped on a floor which had been sprinkled with cleaning compound. Recovery in the lower court was affirmed by the superior court on the theory that it was a question of fact for the jury to decide which caused the plaintiff to slip:

Where, as here, there may be a reasonable difference of opinion as to whether appellant’s negligence was the proximate cause of the injuries, the question of legal causation is for the jury.

Id., 161 Pa.Super. at 382, 71 A.2d at 844 (citations omitted), 166 Pa.Super.

The order of the Montgomery County Court En Banc denying plaintiffs motion for removal of the non-suit is reversed and the plaintiff is hereby awarded a new trial consistent with this Opinion.

      . Appellant presents three questions for our consideration:
      Did the Trial Court abuse its discretion and commit an error of law in entering a judgment of non-suit without considering the evidence presented particularly with respect to plaintiffs cause of action that the snow covered metal plate at the exit to defendant’s premises created an unsafe condition?
      Did the Trial Court abuse its discretion and commit an error of law by failing to apply the standard of care of a business invitee which would have required defendant to protect the plaintiff not only against dangers which he knows, but also against those which with reasonable care he might discover?
      Did the lower Court en banc commit an error of law by setting too high a standard to measure defendant’s culpability by requiring the plaintiff to prove that the surface was extremely more slippery than the surrounding area?
      Brief for Appellant at 2.


source: Caselaw Access Project

author: BROSKY, Judge: SPAETH, Judge, WATKINS, Judge,

license: Public Domain

text:
    436 A.2d 1001
    COMMONWEALTH of Pennsylvania, v. Andrew FIUME, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed Oct. 30, 1981.

      Richard F. Andracki, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before PRICE, SPAETH, HESTER, CAVANAUGH, BROSKY, WATKINS and HOFFMAN, JJ.
   BROSKY, Judge:

Andrew Fiume was convicted at a non-jury trial of involuntary manslaughter and driving under the influence of intoxicating liquor. Appellant filed post-file motions which were denied. He was sentenced to three years probation. This appeal followed. We reverse and remand to the trial court for a new trial.

Appellant seeks resolution of three issues: first, whether the arrest was unauthorized because it occurred outside the officers’ jurisdiction; second, whether the officers had probable cause to make the arrest; and, third, whether the verdict was supported by sufficient evidence. We will not discuss the latter two issues since our resolution of the first issue disposes with the case.

Fiume and two friends were drinking on the night of October 30, 1976 in Plum Borough, Allegheny County, Pennsylvania. The record indicates that they drank between three and four pitchers of beer that evening. After leaving the tavern where they had been drinking, they drove in appellant’s automobile to parts unknown. After driving several miles, appellant’s car veered to the left and skidded into a telephone pole. Fiume and one other passenger were thrown from the vehicle. The vehicle was broken in two by the force of the utility pole which cracked and fell into the automobile. The third passenger was pinned beneath the pole when it hit the car. He subsequently died.

The police responded to calls reporting the accident. Officer Ronald Meyers of the Plum Borough Police Department, Allegheny County, shortly after arriving at the scene of the accident, directed the three men be taken to Citizens General Hospital which is located in New Kensington, Westmoreland County. Meyers then radioed Officer Focareta who coincidentally was at the hospital to investigate another accident. He was also asked to investigate the accident in this case. Officer Focareta is also a member of the police department of Plum Borough.

Officer Focareta approached one of the victims in this case and asked him who had been driving the vehicle. That person indicated Fiume was driving. Appellant was then questioned, but he did not respond. The officer detected the scent of alcohol surrounding Fiume. He then placed appellant under arrest and read to him his Miranda rights. A blood alcohol test was ordered which indicated a level of ,22%.

At a pre-trial hearing, Fiume sought to have the results of the blood alcohol test suppressed, arguing that it was the fruit of an illegal arrest caused by the fact that the arrest resulted from an investigation which occurred outside the jurisdiction in which the officers were statutorily authorized to make arrests. The suppression motion was denied. Appellant also argued at trial that the accident resulted from a latent steering defect present in his vehicle at the time of the accident.

The Act of August 6, 1963,. P.L. 511, No. 267, § 1, as amended, Act of November 2, 1973, No. 109, § 1, (19 P.S. § 11) states:

Any police officer in the employ of a city, borough, town or township may arrest, with or without a warrant, any felon or person who has committed a misdemeanor or summary offense beyond the territorial limits of the political subdivision employing such officer for such offense committed by the offender within the political subdivision employing the police officer if such officer continues in pursuit of the offender after commission of the offense : Provided, however, that a police officer shall exercise only the power of arrest he would have if he were acting within the territorial limits of the political subdivision employing him.

(Emphasis added.) Had the police sought to arrest appellant at the scene of the accident, they would have made a warrantless arrest.

The Act of April 29, 1959, P.L. 58, § 1204(a), 75 P.S. § 1204(a), amended by the Act of July 20, 1974, P.L. 522, No. 177 § 2, [75 P.S. § 1204(a)] provides:

Police officers, when in uniform and displaying a badge or other sign of authority, may arrest, upon view, any person violating any of the provisions of this act, where the offense is designated a felony or misdemeanor, or in cases causing or contributing to an accident resulting in injury or death to any person, and in all cases of arrest such peace officers shall forthwith make and file with the magistrate, before whom the arrested person is taken a complaint setting forth in detail the offense, and at once furnish a copy thereof to the person arrested. A peace officer may, upon review or upon probable cause without a warrant, arrest any person violating section 103.7 of this act in cases causing or contributing to an accident.

The offense of driving under the influence of liquor or drugs in effect at the time of the accident was:

Section 1037. Driving Under the Influence of Liquor or Drugs.—It shall be unlawful for any person to operate a motor vehicle, tractor, streetcar or trackless trolley omnibus, while under the influence of intoxicating liquor or any narcotic drug or habit producing drug, or permit any person. . .

Act of April 29, 1959, P.L. 58, § 1037 (75 P.S. § 1037).

Thus, warrantless arrests are permitted if police have probable cause to believe a person is driving while intoxicated. Commonwealth v. Meyer, 488 Pa. 414, 412 A.2d 577 (1980); Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976); Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786 (1977).

The record discloses that, although the police had control over the appellant while in their jurisdiction, they at no time sought to arrest him. Thus, without regard to whether they could have arrested him pursuant to 75 P.S. § 1204(a), our inquiry must focus on the legitimacy of the extraterritorial arrest undertaken by Officer Focareta. Essentially, we must determine whether that officer was continuing “in pursuit of the offender after commission of the crime.” 19 P.S. § 11.

The statute requires that an extraterritorial arrest be made by police only when it is undertaken as the result of a “continuous pursuit.” This pursuit need not be “hot” however it must be “fresh.” In United States v. Getz, 381 F.Supp. 43 (E.D.Pa.1974), affirm 3 Cir., 510 F.2d 971, cert. den. 421 U.S. 950, 95 S.Ct. 1684, 44 L.Ed.2d 105 (1976), a case involving an extraterritorial arrest of bank robbers who had been continuously pursued by the police for 35 minutes, District Judge Troutman said in an opinion for the court:

Defendants argue that the arrest was invalid because the officers were not in “hot” pursuit. Apparently, defendants contemplate that only a fender-smashing Hollywood style chase scene would satisfy the requirement of the statute. We do not read the act so restrictively. The statute on its face provides only that arrest may be effected beyond the jurisdiction so long as “such officer continues in pursuit of the offender...” It does not specify that the officer must be in “hot” pursuit. The phrase “continues in pursuit” supports the conclusion that the statute contemplates “fresh pursuit.” In the instant case, Officers Young and Scalzo were in continuous pursuit of the evasive robbers from the time of the initial communication at 2:20 p. m. until the arrest at 2:55 p. m., a period of time encompassing 35 minutes. The . officers proceeded diligently in their search for the fleeing robbers and there was no hiatus or interruption in their efforts. Accordingly, we conclude that the arrest was made beyond the territorial limits of the officers’ jurisdiction, while the officers were in pursuit of the felons within the purview of 19 P.S. § 11.

(Emphasis supplied.) Id. at 46. Pennsylvania decisions have reached a similar understanding of the statute. Commonwealth v. England, 474 Pa. 1 n. 3, 375 A.2d 1297 n. 3 (1977); Commonwealth v. Robb, 238 Pa.Super. 62, 352 A.2d 515 (1975). Although Pennsylvania decisions have appeared to use the term “hot pursuit” and “pursuit” almost interchangeably, Commonwealth v. England, supra, 474 Pa. at 10, 375 A.2d at 1297; Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976), our courts have apparently adopted the same view as expressed in United States v. Gertz, supra. In Commonwealth v. Anzalone, 269 Pa.Super. 549, 410 A.2d 838 (1980), we specifically differentiated “hot pursuit” from “pursuit” stating that “pursuit” was all that was required. We hold that 19 P.S. § 11 requires only that the police be in “pursuit” of persons who have committed crimes in their jurisdiction to make a valid arrest. Id., 269 Pa.Super. at 554, 410 A.2d at 840. We also hold that the pursuit must begin both in the jurisdiction where the police are authorized to act and in that jurisdiction where the crime is committed. Commonwealth v. Anzalone, supra; Commonwealth v. Bable, 254 Pa.Super. 72, 385 A.2d 530 (1978).

Our Supreme Court first discussed the authority of police to make arrests outside of their jurisdiction in Boorse v. Springfield Township, 377 Pa. 109, 112 n. 2, 103 A.2d 708, 710 n. 2 (1954), overruled on unrelated grounds, Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), that police officers were limited in geographical authority to the geographical boundaries of their township. The General Assembly enacted 19 P.S. § 11 as a codification of this principle subject to the exception that police involved in the continuous pursuit of a felon could pursue that person outside their jurisdiction. The authority of police, however, to arrest outside their jurisdiction is specifically limited to the statutory grant. 19 P.S. § 11. Commonwealth v. Kunkel, 268 Pa.Super. 299, 408 A.2d 475 (1979).

In Commonwealth v. Troutman, 223 Pa.Super. 509, 302 A.2d 430 (1973), we noted that:

The legislature has not extended the authority to township police officers to cross township lines in order to make an arrest in hot pursuit of a misdemeanant. . . . Until the legislature grants such power to township police officers, this court cannot permit local law enforcement officials to infringe upon the jurisdiction of other local law enforcement agencies by crossing township lines to arrest.

Id., 223 Pa.Super. at 511, 302 A.2d at 431; Commonwealth v. Ward, supra. Subsequent to our decision in Commonwealth v. Troutman, supra, the legislature expanded the power of local police to pursue a fleeing misdemeanant into another jurisdiction. Act of August 6, 1963, P.L. 511, No. 267, § 1; as amended by the Act of November 2, 1973, No. 109, § 1; imd. effective; 19 P.S. § 11.

In Commonwealth v. Robb, supra, we said that the purpose of the 1973 amendment to 19 P.S. § 11 was to permit officers to pursue intoxicated motor vehicle operators across jurisdictional lines and arrest them. We held that although the crime for which the defendant is eventually charged must occur in the policeman’s jurisdiction, the probable cause for arrest need not arise until after the police officer has pursued the felon or misdemeanant into the neighboring jurisdiction. The Commonwealth argues that this analysis fits their situation perfectly. We cannot agree. While we said in Commonwealth v. Robb, supra, that because 19 P.S. § 11 is not penal in nature that its construction and application must be liberally construed, 1 Pa.C.S.A. § 1928; Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974), we do not believe that the lower court’s interpretation is in accord with even the most liberal of interpretations. To affirm the trial court’s interpretation of 19 P.S. § 11 would contradict the intentions of the General Assembly, 1 Pa.C.S.A. § 1921.

In Commonwealth v. Robb, supra, where police followed by car and eventually arrested, in Bucks County, James H. Robb for an offense arising in Montgomery County, we said:

Appellee also contends that 19 P.S. § 11 did not authorize this arrest because Officer Simes did not “pursue” appellee into Bucks County. Appellee argues that, in this case, Officer Simes directed appellee to cross the border and appellee obeyed. There was not real pursuit because appellee was not fleeing. We agree that generally, the word “pursuit” connotes something more than mere casual following. However, because 19 P.S. § 11 is not penal in nature it must be interpreted liberally. ... A liberal interpretation of the word “pursuit” would include the conduct of the officer in this case.

Id., 238 Pa.Super. at 68-69, 352 A.2d at 517.

We do not hold, as the Commonwealth would have us hold, that the very liberal interpretation of the statute adopted by the trial court is correct. It appears to us that the trial court has permitted greater authority to the police than the statute permits. The trial court stated in the relevant portion of its opinion:

Officer Meyers, the first officer to arrive on the scene, took control of the situation. Under his authority and at his direction the accident scene was secured; a tow truck was called and operated according to his instructions; and the three accident victims were taken to the hospital. Thus, Meyers had already exercised control over the injured defendant in Plum. Under these circumstances he would have had the authority to direct the blood seizure, ideally at the first safe moment. This authority was then transferred to Focareta at the hospital.
More importantly, it would be contrary to public policy to hold, under the facts of this case, that the evidence must be suppressed on the basis that the arresting officer was outside his territorial jurisdiction. Police officers should never find themselves in a situation in which they must choose between obtaining possibly crucial evidence of a highly evanescent nature and safeguarding the health or life of a suspect by transporting him or her to the closest hospital. In such situations the police would be encouraged to ignore the latter course of action in favor of the former. And when the police act out of humanitarian instincts the suspect should not receive a windfall.
Moreover, there are not competing Fourth Amendment policy considerations here: the defendant has suffered no violation of his constitutional rights by being arrested in New Kensington by a Plum police officer.

The trial court was apparently swayed by the humanitarian purpose of the police in sending the injured men to the hospital. This action, however, cannot be construed to permit the police of Plum Borough to make an arrest outside their jurisdiction. If we were to expand upon the meaning of 19 P.S. § 11 as the trial court would like us to do, we would be taking an action which is better left to the legislature and not the courts. Even if the police had probable cause to arrest in Plum Borough, which we did not require in Commonwealth v. Robb, supra, there clearly was no pursuit. The record does not disclose even a suspicion on the part of Officer Meyers that the accident was in some way related to a possible violation.

The record indicates that Officer Meyers testified:

Q. Do you know where the three individuals were taken? Where were they taken?
A. Citizens General Hospital, New Kensington.
Q. Did you have an opportunity that night to talk to your dispatcher?
A. Yes.
Q. What information did you put over the radio?
A. The approximate time that the first ambulance was getting ready to leave the scene of the accident. I got in the patrol car and I called the police station and I was aware that Officer Focareta was—called the police station and told him to call Citizens Hospital and request Officer Focareta to remain at the hospital and collect information from the victims that I was sending down to him by way of ambulance.
Q. What did you do subsequent to putting that radio call in? Subsequent to that call what did you do? Did you remain at the scene?
A. I remained at the scene until the scene was completely cleaned up and secured.

Officer Meyers also testified that there was a reasonable likelihood that many accidents occurred on the highway. Furthermore, at the turn in the road, where the accident occurred, the utility pole was not visible until a driver was quite near it. There is also no dispute as to the fact that the appellant was driving within the speed limit.

Q. Now, you have identified Picture No. 1 as being approximately a quarter mile from the accident scene. Correct?
A. Correct.
Q. From that point you are unable to observe the pole in question. Correct?
A. Correct, because of the trees.
Q. Because of the trees and the fact that there is a curve in the road?
A. Correct.

Thus, while the Commonwealth need not prove that probable cause existed to arrest in Plum Borough, in order to make an extraterritorial arrest valid, the record does indicate that Officer Meyers was apparently not even suspicious of the accident circumstances and certainly saw no reason to pursue the appellant. Compare, Commonwealth v. Guerry, 469 Pa. 20, 364 A.2d 700 (1976). Clearly, Meyers notified Officer Focareta so that he could investigate the accident in accordance with normal police procedures. There was no pursuit.

Furthermore, while we want to make it clear that a policeman may delegate responsibility or seek assistance from a fellow officer, in his own jurisdiction, or one outside his jurisdiction, when the policeman is in pursuit of a felon or misdemeanant, from his own jurisdiction to a foreign jurisdiction, no such pursuit existed here. Any suspicion that any type of violation had occurred did not arise until Officer Focareta visited the accident victims. Quite obviously, Officer Meyers was not in pursuit. Any actions by Officer Focareta began outside his jurisdiction and, therefore, were beyond any conceivable reasoning involving pursuit.

We also note the Commonwealth made no attempt to show that Officer Focareta could act or acted under his official capacity while in New Kensington, Westmoreland County, under any agreement between Plum Borough, Allegheny County, and New Kensington, Westmoreland County, for mutual police aid. See 53 P.S. §§ 56554, 65590; Com monwealth v. Kunkel, supra, 268 Pa.Super., at 302 n. 3, 408 A.2d at 476 n. 3. Clearly, there is no plausible argument which would legitimize Officer Focareta’s actions as that of a deputy of the New Kensington, Westmoreland County, Police Department.

We hold that these circumstances do not fall within the purposes envisioned by the General Assembly when it enacted 19 P.S. § 11. The provisions were intended to facilitate police pursuit and arrest of persons who violate laws and then attempt to secret the jurisdiction in which they committed the offense. Certainly, the General Assembly proposed to permit police to “pursue” individuals who were also driving while intoxicated over jurisdictional boundaries so that the safety of those people and others might be preserved.

Similarly, the General Assembly sought to permit police the opportunity to obtain evanescent evidence by permitting a continued pursuit. However, the General Assembly did not intend to endorse police investigations involving several members of a police force that did not flow from “continuous pursuit” of offenders. Pennsylvania decisions have restricted police from engaging in unauthorized extrajurisdictional arrests for many years. Boorse v. Springfield Township, supra. Subsequently, the General Assembly provided limited circumstances under which extrajurisdictional arrests may be undertaken by police. 19 P.S. § 11. However, in light of the restricted extrajurisdictional authority accorded police by our courts and by the General Assembly, we must assure that the police do not seek to legitimize their authority in other jurisdictions than their own beyond the scope of the purposes the General Assembly undertook when it passed 19 P.S. § 11.

Finally, the appellant argues he should be discharged if we find the arrest to have been illegal. We cannot agree.

In Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), the United States Supreme Court articulated that a United States citizen who had been forcibly removed from a foreign country for trial in a state court could not challenge the indictment, or his conviction thereunder, on the grounds that he was improperly brought within the court’s jurisdiction in violation of his Fourteenth Amendment right to due process of law. This decision was reaffirmed many years later in Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, reh. den. 343 U.S. 937, 72 S.Ct. 768, 96 L.Ed. 1344 (1952).

An exception to this rule was carved out in United States v. Toscanino, 500 F.2d 267, reh. den. 504 F.2d 1380 (2nd Cir. 1974), wherein that court said:

In light of these developments we are satisfied that the “Ker-Frisbie” rule cannot be reconciled with the Supreme Court’s expansion of the concept of due process, which now protects the accused against pretrial illegality by denying to the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on its part. Although the issue in most of the cases forming part of this evolutionary process was whether evidence should have been excluded (e. g., Mapp, Miranda, Wong Sun, Silverman), it was unnecessary in those cases to invoke any other sanction to insure that an ultimate conviction would not rest on governmental illegality. Where suppression of evidence will not suffice, however, we must be guided by the underlying principle that the government should be denied the right to exploit its own illegal conduct, Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, [417], 9 L.Ed.2d 441 (1963), and when an accused is kidnapped and forcibly brought within the jurisdiction, the court’s acquisition of power over his person represents the fruits of the government’s exploitation of its own misconduct. Having unlawfully seized the defendant in violation of the Fourth Amendment, which guarantees “the right of the people to be secure in their persons . . . against unreasonable . . . seizures,” the government should as a matter of fundamental fairness be obligated to return him to his status quo ante.

Id. at 275.

The Toscanino exception to the Ker-Frisbie rule has not been ruled upon by the Supreme Court except in United States v. Marzano, 537 F.2d 257 (7th Cir. 1976), cert. den. 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977), where the Supreme Court denied certiorari in a decision of the Seventh Circuit Court of Appeals in which the court held that where no facts were alleged or proved which could be termed outrageous—shocking to the conscience—that the court would not inquire into the facts surrounding the appellant’s apprehension and delivery into the court’s jurisdiction. Thus, only where outrageous conduct is alleged and proved will the court inquire into the circumstances of the arrest to determine whether the person of the defendant should have been excluded from evidence and thereby discharging the defendant.

The Pennsylvania Supreme Court has only discussed this exception on one occasion. In Commonwealth v. Pass, 468 Pa. 36, 360 A.2d 167 (1976), the court said:

Appellant argues that the federal indictments which brought him to Pennsylvania were a subterfuge and, therefore, his state convictions must fail because he was brought to Pennsylvania illegally. We do not agree. Appellant, with the advice of counsel, chose to voluntarily come to Pennsylvania. Moreover, the manner in which appellant was brought into Pennsylvania by federal authorities would not affect the jurisdiction of the Pennsylvania court in this case. Appellant was neither forcibly brought into Pennsylvania nor was he kidnapped by state or federal authorities for the purpose of bringing him to Pennsylvania. See Lujan v. Gengler, 2 Cir., 510 F.2d 62 (1975); Cf. United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974).

Id., 468 Pa. at 48, 360 A.2d 170.

In the instant case, Fiume has not alleged or proved that his presence before the Allegheny County Court of Common Pleas resulted from some outrageous police conduct. Thus, we will not even inquire into the possibility that the Toscanino exception is applicable. Accordingly, the appellant cannot be discharged.

The established standard by which the trial court must view the evidence in the instant case is clear. The interpretation of the due process clause was greatly expanded in the Frisbie decision. See Griswold, The Due Process Revolution and Confrontation, 119 U.Pa.L.Rev. 711 (1971). In so doing, the court has interpreted the due process clause so as to deter police misconduct. Thus, the Commonwealth is not permitted to realize the “fruits” of its own lawlessness in bringing an accused to trial. See United States v. Russell, 411 U.S. 423, 430-431, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Thus, all evidence which was obtained by the police which was the “fruit” of the illegal arrest must be excluded.

Accordingly, we reverse and remand the case for a new trial to determine at what precise moment in time Fiume was illegally placed under arrest and at said trial, the court shall exclude from admission into evidence any facts which came to the knowledge of the Commonwealth as a result of the illegal arrest.

Judgment of sentence reversed and remanded for a new trial.

HESTER, CAVANAUGH and HOFFMAN, JJ., concur in the result.

SPAETH, J., files a concurring and dissenting opinion.

WATKINS, J., files a dissenting opinion.

PRICE, J., did not participate in the consideration or decision of this case.

SPAETH, Judge,

concurring and dissenting:

I concur in the majority’s conclusion that appellant is entitled to a new trial, but not to discharge. I dissent because in ordering a new trial, the majority suggests that the lower court should hold a hearing in order to determine whether the blood was the fruit of the illegal arrest. See the last paragraph of the majority’s opinion. The lower court should not hold such a hearing. The Commonwealth has—correctly—conceded that the blood was the fruit of the arrest. See Brief for Commonwealth at 4, 11. Its argument has been that the arrest was not illegal.

I also wish to make one further comment.

On February 7, 1978, appellant was given a sentence of three years probation. He took an appeal from the judgment of sentence, and on January 4,1980—almost two years later—a panel of this court issued an opinion vacating the judgment and ordering appellant discharged. On March 13, 1980, the Commonwealth’s application for reargument was granted, and on November 14, 1980, the case was re-argued before the court en banc. I recite this procedural history to emphasize that when appellant was initially discharged by this court, he had already served nearly two years of his three year sentence of probation. This fact does not, as appellant contends it does, entitle him to discharge rather than a new trial. However, if after a new trial, appellant should again be convicted, the lower court will not be able to impose a more severe sentence than the initial sentence of three years probation, “[ajbsent valid and sufficient intervening conduct by the defendant articulated in the record.” Commonwealth v. Brenizer, 477 Pa. 534, 538, 384 A.2d 1218, 1220 (1978). See also Commonwealth v. Pearson, 450 Pa. 467, 303 A.2d 481 (1973). Furthermore, it is constitutionally required that “punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 718-719, 89 S.Ct. 2072, 2077-2078, 23 L.Ed.2d 656 (footnote omitted).

WATKINS, Judge,

dissenting:

I dissent, I would not hold that the officer’s actions in seeing to it that the defendant got to a hospital in another jurisdiction before he arrested the defendant deprived the officer of his right to make the arrest.

In situations involving serious automobile accidents the investigating officer’s first priority must be to see that those injured receive proper medical attention as soon as possible. Merely because an officer does this and sends an injured motor vehicle operator to a hospital in another municipality rather than immediately arresting him does not divest the officer of his right to make the arrest. I would hold that 19 P.S. § 11 is sufficiently broad to cover this type of situation, as said Act is a procedural one and not one involving substantive criminal law. As such, it need not be so strictly construed. I would affirm the conviction.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1964).

      . The Commonwealth does not contend that the Officer’s arrest may have been a citizen’s arrest. However, as we said in Commonwealth v. Ward, 235 Pa.Super. 550, 556 n. 5, 344 A.2d 650, 653 n. 5 (1975):
      5 The Commonwealth does not press the point that we should treat the officer’s arrest as a citizen’s arrest. First, it is questionable whether the arrest would have been valid as a citizen’s arrest. See 3 P.L.E. § 5 Arrest, p. 38-39, and cases cited therein. Second, we rejected the same argument in Commonwealth v. Troutman, supra, 223 Pa.Super. at 512, 302 A.2d at 432: “Once an officer invokes the power of the township to make an arrest, he cannot preserve the legality of the arrest by labelling his behavior a citizen’s arrest.”

        Commonwealth v. Edwards, 269 Pa.Super. 556, 410 A.2d 841 (1980).

      . Repealed. April 28, 1978, P.L. 202, No. 53, § 2(a)[14], effective June 27, 1978. Clearly, the instant case falls in the period of time during which the statute was effective.

      . The General Assembly by the Act of July 9, 1976, P.L. 586, No. 142, § 2, eff. June 27, 1978 (42 Pa.C.S.A. § 8901) substantially reenacted 19 P.S. §11. It states:
      Any police officer of any political subdivision may arrest with or without warrant any person beyond the territorial limits of such political subdivision for a summary or other offense committed by such person within such political subdivision if the officer continues in pursuit of such person after commission of the offense. The police officer shall exercise under this section only the power of arrest which he would have if he were acting within the territorial limits of his political subdivision.
      We note with particular interest that in a very recent opinion we interpreted 42 Pa.C.S.A. § 8901 as requiring fresh and continuous pursuit rather than hot pursuit. Commonwealth v. Holderman, 284 Pa.Super. 160, 425 A.2d 752 (1981). We also find that the General Assembly has not expanded its reasoning to include a rationale upon which the lower court’s analysis could be theoretically justified, even if 42 Pa.C.S.A. § 8901 were applicable in the instant case. Clearly, fresh and continuous pursuit remains a requirement of the statutory provision.


author: MONTEMURO, Judge:

text:
    436 A.2d 1009
    COMMONWEALTH of Pennsylvania, v. Frank Edward WYATT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dee. 5, 1980.
    Filed Oct. 30, 1981.

      Barry M. Miller, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before CAVANAUGH, DiSALLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an order denying relief to appellant, Frank Edward Wyatt, under the Post Conviction Hearing Act. Pursuant to a plea bargain, appellant was sentenced to a term of seven and one half (7V2) to fifteen (15) years imprisonment for Kidnapping on December 5, 1974.

Appellant contends that trial counsel was ineffective for failing to object to an improper guilty plea colloquy. He argues that his guilty plea was not knowing and intelligent because he was not informed of his “presumption of innocence” during the colloquy. Appellant was not, in fact, informed of his presumption of innocence. He was, however, informed that the Commonwealth had to prove every element of the crime beyond a reasonable doubt.

The duty to make an inquiry into the areas listed in the comments of Pa.R.Crim.P. 319(a) was not made mandatory until March 17, 1976, a date subsequent to appellant’s guilty plea. See Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976). In Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), the court acknowledged that a guilty plea had never been vacated simply because the defendant’s “presumption of innocence” had not been mentioned, as long as a factual basis for the plea was demonstrated and the defendant understood the nature of the charge lodged against him. See also Commonwealth of Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979). From a reading of the colloquy, it is clear that these requisites were established and that therefore the appellant’s guilty plea was knowing and intelligent. Despite our finding that the colloquy was proper, and despite the absence of contemporary cases which would have alerted trial counsel to the necessity of advising appellant on the record of his “presumption of innocence,” we are constrained to reverse.

In Commonwealth v. Dello Buono, 271 Pa.Super. 572, 414 A.2d 631 (1979), our court voided a 1975 guilty plea because of the same defect without discussing the retroactive impact of such a decision. However, our failure to understand the reasoning of the Dello Buono decision does not affect our obligation to follow it. Accordingly, the order of the lower court is reversed and a new trial is ordered.

      . 18 Pa.C.S.A. § 2901.

      . Appellant also raises two other issues, both of which are meritless. Because of our disposition in this case, it is unnecessary to address these issues.

      . Defendant must be informed of his “presumption of innocence.”


author: HOFFMAN, Judge:

text:
    436 A.2d 1010
    COMMONWEALTH of Pennsylvania, Appellant, v. Millard BURTON.
    Superior Court of Pennsylvania.
    Argued April 29, 1981.
    Filed Oct. 30, 1981.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    Stanton D. Levenson, Pittsburgh, for appellee.

      Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

The Commonwealth appeals two orders of the lower court: the first, suppressing evidence seized from appellee’s automobile; and the second, finding appellee not guilty of possessing a small quantity of cocaine. For the reasons which follow, we: (1) reverse the suppression order and remand for further proceedings; and (2) quash the appeal from the order finding appellee not guilty.

At approximately 1:50 a. m. on September 15, 1978, the doorman at Zelda’s Greenhouse, a bar located on Forbes Avenue in Pittsburgh, informed Officer Ernest Tomasko that appellee was inside the bar and that he had a gun. Upon viewing appellee through the window of the bar, Officer Tomasko recognized him as the man he had seen leave the bar and go to a nearby automobile on several occasions throughout the evening. As appellee left the bar, Officer Tomasko approached him, and seized the gun which he saw beneath appellee’s jacket. When Officer Tomasko asked appellee if he had a permit for the gun, appellee replied that it was located in the trunk of his car. Officer Tomasko and several other policemen who had responded to his request for assistance accompanied appellee to his car. Appellee could not unlock the trunk and claimed that he had dropped the key. While the officers assisted appellee in looking for the key, Officer Tomasko again asked him if he had a permit for the gun. When appellee admitted that he had no permit, Officer Tomasko immediately arrested him for possessing the gun without a license. A subsequent search of appellee incident to his arrest produced a small vial containing a marginal amount of white powder subsequently identified as cocaine. Contemporaneously with appellee’s arrest and search incident, Officer John Sitarik, still looking for the missing trunk key, approached the driver’s side of appellee’s car and shined his flashlight into the interior. He then saw on the front seat a plastic bag containing a substance which he believed to be marijuana. While retrieving the bag from the car, Officer Sitarik noticed a similar bag protruding from a partially opened briefcase. He then removed that bag from the briefcase and noticed that it contained a quantity of rice and a smaller plastic bag containing white powder which he believed to be cocaine.

As a result of the incident, appellee was charged with the following offenses: (1) possession with intent to deliver cocaine; (2) possession with intent to deliver marijuana; (3) possession of cocaine; (4) possession of marijuana; and (5) carrying a firearm without a license. Appellee subsequently filed a motion to suppress all of the evidence seized from his person and his automobile. Following a hearing on appellee’s motion, the lower court upheld the seizure of the gun and the small vial containing cocaine but suppressed all of the evidence found in appellee’s car. After a brief recess, the lower court conducted a nonjury trial on the charges of possessing cocaine and carrying a weapon without a license. Appellee was found guilty of the weapons offense and not guilty of possessing cocaine. These appeals followed.

The Commonwealth contends, inter alia, that the lower court erred in suppressing the evidence seized from appellee’s automobile. We agree. “Where police have a lawful right to be in the position of observation, they can lawfully seize objects in plain view. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973).” Commonwealth v. Veal, 287 Pa.Super. 113, 115, 429 A.2d 1125, 1126 (1981), quoting Commonwealth v. Harris, 479 Pa. 131, 138, 387 A.2d 869, 873 (1978). In a comparable case, this Court upheld, under the plain view doctrine, an officer’s warrantless seizure of a quantity of marijuana from the interior of a truck while his partner engaged the defendant in a field sobriety test.

Assuming that the initial stop was proper, as it certainly seems, Officer Garrett did nothing illegal or in violation of the constitutional rights of this defendant when he approached the passenger side of the truck, nor when he went to the driver’s side of the truck on a public street, nor when he shined the flashlight through the open door into the interior of the truck. At that point, the suspect material was in “plain view” of the officer.
The suppression judge obviously did not accept Officer Garrett’s claim that his movement to the driver’s side was motivated by a fear that the passenger might be of personal danger to him and/or his fellow officer; but his motivation is of no legal significance in this present case, since the officer had a legal right to be where he was when he [shined] the flashlight into the interior of the truck. See Commonwealth v. Janek, 242 Pa.Super. 340, 363 A.2d 1299 (1976).
At that point, without any acceptable, proved motivation for using the flashlight, did the officer have a legal right to bring into “plain view” what was hidden by the darkness? We find he did, and so held in Commonwealth v. DeJesus, 226 Pa.Super. 79, 310 A.2d 323 (1973). See also Commonwealth v. Nastari, 232 Pa.Super. 405, 412, 335 A.2d 468 [,471-72] (1975).

Commonwealth v. Lehman, 265 Pa.Super. 480, 484, 402 A.2d 539, 541 (1979). The officer’s discovery, albeit with the aid of a flashlight, of the marijuana in plain view was not improper. Id. See also Commonwealth v. Clelland, 227 Pa.Super. 384, 389, 323 A.2d 60, 61 (1974). Having properly seized the bag of marijuana, Officer Sitarik then had probable cause to seize the similar bag which he saw protruding from the open briefcase. See Commonwealth v. Veal, supra, 287 Pa.Super. at 115, 429 A.2d at 1126 (experienced police officer had probable cause to seize glazed paper packets which he suspected contained heroin and which were similar to packets seized shortly beforehand). See also Commonwealth v. Whitner, 241 Pa.Super. 316, 361 A.2d 414 (1976). Accordingly, because we conclude that the lower court erred in suppressing the marijuana and cocaine seized from appellee’s automobile, we must reverse the suppression order and remand for trial on counts one, two, and four of the information.

The Commonwealth next contends that the lower court erred in finding appellee not guilty of possessing cocaine. Although the Commonwealth may appeal from an order arresting judgment in a criminal case, see, e. g., Commonwealth v. Blevins, 453 Pa. 481, 482, 309 A.2d 421, 422 (1973), or from an order sustaining a defendant’s demurrer, see, e. g., Commonwealth v. Matsinger, 288 Pa.Super. 271, 273, 431 A.2d 1043, 1044 (1981), it is clear, as the Commonwealth readily concedes, that it may not appeal from a finding that a defendant is not guilty. See Commonwealth v. Thinnes, 263 Pa.Super. 79, 83, 397 A.2d 5, 6 (1979). Even if the lower court erroneously entered the verdict of not guilty, the Commonwealth still cannot appeal. Id.

It may be in the instant case that the trial judge’s decision turned on an issue of law. It may also be that he intended to sustain the demurrer and dismiss the criminal complaint. In fact, however, he adjudicated the defendant not guilty. It is this adjudication which one finds when he examines the record. From such an order the Commonwealth has no right of appeal.

Id., 263 Pa.Super. at 84, 397 A.2d at 7. We cannot look behind the order finding appellee not guilty of possession of cocaine. Consequently, we must quash the Commonwealth’s appeal from that order.

The order appealed at No. 202 April Term, 1979 is hereby reversed and remanded for proceedings consistent with this opinion. The appeal at No. 203 April Term, 1979 is hereby quashed.

      . The Commonwealth’s Brief contains the following jurisdictional statement:
      The pretrial order, granting appellee’s motion to suppress, necessarily involves a question of law. Furthermore, the suppression of the recovered items, amounts of cocaine and marijuana, effectively terminated the prosecution of appellee on Counts One, Two and Four of the Information filed at CC7805508A. These counts included possession with intent to deliver a controlled substance, i. e., cocaine, possession with intent to deliver a controlled substance, i. e., marijuana [,] and possession of marijuana. Termination of the prosecution was necessary since the Commonwealth was left without evidentiary means of proving that appellee was in possession of these controlled substances. See Commonwealth v. Kinkel [sic], 254 Pa.Super. 5, 385 A.2d 496 (1978), Commonwealth v. Hargraves, 268 Pa.Super. 95, 407 A.2d 454 (1979).
      This statement adequately “articulate[sj ... how ‘the suppression will terminate or substantially handicap the prosecution, [and includes] a brief explanation, not inconsistent with the record, why [that] is so.’ ” Commonwealth v. Montgomery, 292 Pa.Super. 32, 34, 436 A.2d 705, 706, (J. 11/1981), quoting Commonwealth v. Kunkel, 254 Pa.Super. 5, 10, 385 A.2d 496, 499 (1978). Consequently, the Commonwealth has perfected our jurisdiction to entertain this appeal from the suppression order. We note, additionally, that because the Commonwealth has apparently abandoned any claim that the lower court erred in suppressing certain narcotics paraphernalia which had also been seized from appellee’s automobile, we express no view on that aspect of the suppression order.

      . Because of our disposition of this issue, we need not address the Commonwealth’s alternative contention that the search of appellee’s automobile fit within the so-called automobile exception. We note, additionally, that the Commonwealth never contended that the search of the automobile was justified as a search incident to appellee’s arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

      . Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1980), cited by the Commonwealth, is not contrary. In Wimberly, the Supreme Court looked behind the lower court’s order sustaining the defendant’s demurrer—an order which would be appealable—and held that the lower court, by ruling upon the credibility of the Commonwealth’s witness in the course of granting the demurrer, “entered a de facto judgment of acquittal . . . [from which] the Commonwealth has no right to appeal.” Id., 488 Pa. at 173, 411 A.2d at 1195 (quotations and citations omitted).


author: VAN der VOORT, Judge:

text:
    436 A.2d 1014
    COMMONWEALTH of Pennsylvania, v. Richard NASH, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1980.
    Filed Oct. 30, 1981.
    Petition for Allowance of Appeal Denied Jan. 29, 1982.

      Albert C. Oehrle, Norristown, for appellant.
    David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellant was convicted in a nonjury trial of involuntary deviate sexual intercourse, two counts of burglary, and loitering and prowling at night time. Post verdict motions were denied and appellant was sentenced. A timely appeal was filed with this court. Prior to argument, appellant petitioned this court to remand for an evidentiary hearing concerning his contention involving Rule 1100, Pa.R.Crim.P. This court granted such petition. The lower court held an evidentiary hearing and filed a supplemental opinion. The case then proceeded along the normal appellate path.

Since appellant’s complaints are basically procedural in nature, an abbreviated factual account of the case is all that is needed. Two female residents of the Kingswood Apartments in King of Prussia, Upper Merion Township, Montgomery County were burglarized on consecutive Tuesdays. The intruder either attempted to or actually succeeded in sexually abusing the two residents. Both incidents occurred in the early morning hours, one at approximately 3:30 a. m., the other at approximately 4:00 a. m. The police established a surveillance of the apartment complex. On the following Tuesday, appellant was observed at approximately 3:40 a. m. walking along a line of trees in the rear of one of the apartment buildings. As appellant approached a location where a police officer was located, the officer revealed and identified himself and then began to question the appellant. The appellant admitted that he did not live in the apartments. He claimed he was looking for a place to relieve himself and that he became lost and was unable to locate his car. Mr. Nash was placed under arrest for loitering and prowling. He was advised of his rights, and transported to the police station.

Appellant signed, with counsel present, two written postponement requests, both requests were accompanied by a “Rule 1100 Waiver”; both were granted. The three cases came up for trial on March 13, 1979. Argument on pretrial motions were held after which, the court denied appellant’s application to dismiss under Rule 1100 and denied his motion to suppress his statement. Appellant was tried before the same judge sitting without a jury and found guilty.

Appellant raises four issues on this appeal which we will discuss seriatim.

1. Did probable cause exist to arrest appellant?

Appellant recites that there are four elements to the crime of loitering and prowling, the conduct: must occur at night; around a dwelling house; consisting of either loitering or prowling; with, evidence of malice. Appellant claims that he was not “around a dwelling house”; that he was not loitering or prowling nor did he act with malice.

Appellant’s argument contains one major flaw, which he overlooks. When questioning the probable cause of an arrest, we are not concerned with establishing guilt beyond a reasonable doubt; nor are we to determine if a prima facie case exists; “we look to whether the police officers reasonably could have believed that crime was afoot.” Commonwealth v. Dennis, 236 Pa.Super. 348, 350, 344 A.2d 713, 715 (1975). This case is dissimilar to the cases like Commonwealth v. Dial, 445 Pa. 251, 285 A.2d 125 (1971) where the defendants were standing on the sidewalk of a major thoroughfare in front of a supermarket. Here, appellant was observed in the early morning hours walking around an apartment complex to which he was not a tenant. See Commonwealth v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974). We find appellant’s conduct sufficient to justify the police in believing crime was afoot.

Probable cause did exist for appellant’s arrest for loitering and prowling.

2. Should appellant’s inculpatory statements have been suppressed?

Appellant presents two arguments on this point. First, he argues that since probable cause did not exist for the arrest that such statements were the fruits of the unlawful arrest. As we find probable cause did exist we need not address such claim. Secondly, appellant contends that the unnecessary pre-arraignment delay tainted his statements. He argues that the delay was a factor in coercing his statement in that after repeated requests to talk to an attorney he succumbed to the pressures of the situation.

In Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) the Supreme Court fashioned what has commonly become known as the “six hour rule.” “If the accused is arraigned within six hours of arrest, pre-arraignment delay shall not be grounds for suppression of such statements except as the delay may be relevant to constitutional standards of admissibility. See Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 926 (1968), “Id. at 286-87. Therefore, appellant’s claim that a delay of 5 hours and 47 minutes requires his statements to be suppressed is without merit, though such a delay may be considered in determining the voluntariness of such statements.

“In reviewing this (suppression) ruling our initial task is to determine whether the factual findings are supported by the record. ‘In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’ Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975). If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may only reverse if the legal conclusions drawn therefrom are in error.” Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976).

Commonwealth v. Cooke, 260 Pa.Super. 528, 394 A.2d 1271 (1978).

Appellant complains that upon being arrested he was thrown up against a police car; his face pushed against the car. He alleges that the police threatened to allow a police dog to attack him. He claims racial slurs were directed towards him. During questioning he felt intimidated when he observed a service revolver readily accessible. He saw a number of police officers with their hands on their gun. One officer is alleged to have threatened him with a nightstick.

Our review of the notes of testimony taken of the suppression hearing supports appellant’s contention in part. The Commonwealth did not present evidence to contradict appellant as to the police behavior at the scene of arrest. However, we find that the prosecution did adequately contradict appellant’s version of the police behavior at the police station, where the first statement was given. In rebuttal, the officer accused of threatening appellant clearly denied having done so. There was testimony that the police must have ready access to weapons when questioning suspect and that the police had not gone beyond their normal procedure in dealing with appellant. The lower court placed great weight on one factor the appellant has chosen to overlook. Appellant’s argument is premised upon his claim that he was only able to relate the incidents to his interrogators because the police in questioning him had frequently referred to portions of the victims’ statements. The Commonwealth rebutted this claim with testimony that such statements had not been reduced to paper as of the time of appellant’s statement. Nor had the interviewing detective been present when such statements were tape recorded. The lower court found appellant’s statements were voluntary; we agree.

Appellant further claims that he had on at least five occasions prior to giving his inculpatory statements requested to talk to a lawyer. The Commonwealth offered testimony that the appellant had been advised of his Miranda rights on four occasions. On two occasions after receiving his rights appellant somewhat equivocally stated that he felt that he should not talk with the police without first consulting an attorney. On both such occasions the detective offered to call an attorney for appellant but appellant declined the offer. Approximately, a half hour after the second offer, appellant broke down crying and admitted his involvement in the two sexual assaults. The lower court chose to believe the Commonwealth’s account. We must respect such finding of the suppression court. Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978). We find that under the circumstances appellant was not denied his right to the assistance of counsel. See: Commonwealth v. Weaver, 274 Pa.Super. 593, 418 A.2d 565 (1980).

3. Were the lower court proceedings in violation of Rule 1100? Was counsel ineffective in delaying the trial?

The complaints in this case were filed on June 13, 1978. The 180 day period required by Pa.R.Crim.P. R. 1100, would have expired on December 10, 1978. On November 14, 1978, appellant signed a motion to postpone trial as counsel was awaiting a transcript of proceedings in a sister county, which he hoped to be of help in the present cases. Accompanying such motion was a waiver of Rule 1100 for 120 days. The motion was presented to the court on December 4,1978; it was granted. A second similar postponement was granted on January 26, 1979. Trial commenced on March 13, 1979.

Appellant puts forth alternate arguments. First, he relies on Rule 1100(d)(2), which reads:

(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:

(1) the unavailability of the defendant or his attorney;

(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded;

[Emphasis added]

He contends that the first thirty (30) days of the continuances are not excludable. Had the waiver not accompanied the continuance appellant’s position would be correct; for if a postponement was granted for 120 days the first thirty days would not be excludable. However here appellant signed a valid waiver for 120 days. See Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980); Commonwealth v. Scott, 272 Pa.Super. 236, 414 A.2d 1095 (1979). Appellant effectively waived his right to be tried within the original 180 days, and further agreed to be tried within 120 days from the granting of the continuance.

Appellant next argues that counsel was ineffective in having the appellant sign the above waiver. Appellant reasons that since counsel received the awaited transcripts and had sufficiently reviewed them by the end of December, counsel was ineffective in seeking the continuance for 120 days.

“[T]he only inquiry is whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered as advancing and protecting the appellant’s interest.” Commonwealth v. Roundtree, 469 Pa. 241, 249, 364 A.2d 1359 (1976). Here, the record demonstrates that counsel sought a continuance for the purpose of obtaining a transcript of proceedings in a neighboring county which appellant had led counsel to believe would be helpful in the current case. We find counsel’s action was reasonable.

However, appellant argues that it was not reasonable to continue the case for 120 days and that a date certain should have been set. We disagree for three reasons. First, the record indicates that counsel was uncertain as to when the transcript would be available. Second, the court has within its discretion to grant or deny a postponement. We find no abuse of discretion in continuing a case for a maximum of 120 days conditioned on the waiver of Rule 1100 for that period. See: Commonwealth v. Austin, 224 Pa.Super. 230, 302 A.2d 413 (1973). Nor was the continuance for a date uncertain as condemned in Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978), as appellant was to be tried within 120 days. Finally, we take note as described on the record, of the administrative procedures of Montgomery County. Judicial delay may justify the granting of an extension of time. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). Similarly, we hold here that a court in granting a continuance may consider administrative delays in relisting the case.

4. Was trial counsel ineffective in not seeking the suppression judge to recuse himself?

Appellant bases his argument on several facts which were brought to the court’s attention during the hearing on the pretrial motions. The court became aware that charges were pending against Mr. Nash in Bucks County. Furthermore, appellant claims he was prejudiced when the court “was advised in detail concerning the substance of the confession”. He claims several prejudicial details were brought out wherein it was made apparent that the appellant had confessed. Appellant continues that he was denied the right to challenge the voluntariness of the confession before an impartial fact finder.

This current appeal is almost identical to Commonwealth v. Corbin, 447 Pa. 463, 291 A.2d 307 (1972). Here as in Corbin, the decision to proceed before the suppression judge was freely and knowingly made. The lower court on several occasions asked appellant how he wished to proceed. The record clearly indicates the counsel fully advised appellant of the various options and his opinion of the advantages, disadvantages and the chance of success of each. Corbin holds that in such situation it is not improper for the suppression judge, who denies the motion to suppress to preside in a non-jury trial. We hold likewise here.

Nor does the current appeal involve the situation that was present in Commonwealth v. Jones, 259 Pa.Super. 103, 393 A.2d 737 (1978). In Jones, the pre-trial motion judge heard evidence of a defendant’s prior conviction. Prior to trial defendant requested the judge to disqualify himself. The judge refused and this Court reversed and ordered a new trial. In the current appeal, appellant did not request the trial judge to recuse himself. And as previously discussed above, appellant freely chose to proceed before such judge. Accordingly, trial counsel cannot be found ineffective when he fully advises his client of the choices in respect to proceeding before the suppression judge. Counsel cannot be held to be ineffective when his client makes a voluntary informed decision to proceed before a judge who may have heard information adverse to appellant.

Judgment affirmed.

CAVANAUGH, J., concurs in the result.

      . Appellant’s argument sounds more like a challenge to the sufficiency of the evidence, however appellant later gave a statement in which he admitted peering into the apartment windows on the night of his arrest. Therefore, we need not address the issue as to whether malicious conduct existed.

      . Since we find that the first waiver was valid; we need not discuss whether the second postponement and waiver were likewise valid as the actual trial date fell within the time frame of the first waiver.

      . Counsel had prepared the postponement form some three weeks prior to presenting it. He had hoped that the transcript would be available prior to the time the case was to be called for trial, and then the postponement would not be necessary.


author: LIPEZ, Judge:

text:
    436 A.2d 1019
    Ann W. CASANI v. LINCOLN BANK, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1981.
    Filed Oct. 30, 1981.

      Albert Ring, Philadelphia, for appellant.
    Robert G. Bauer, Philadelphia, for appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   LIPEZ, Judge:

This is an appeal by defendant Lincoln Bank from an order denying Lincoln Bank’s motion for judgment on the pleadings in an action to quiet title. Because this order is interlocutory and not made appealable by rule or statute, the appeal must be quashed. See 42 Pa.C.S. § 704(b)(2).

Lincoln Bank claims the order is appealable under Pennsylvania Rule of Appellate Procedure 311(a)(7) and the Act of April 18, 1874, P.L. 64, § 1, 12 P.S. § 1097. Rule 311 provides:

(a) General Rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(7) Other cases. An order which is made appealable by statute or general rule.

Pa.R.A.P. 311. Section 1097 provides:

In all actions now pending, or which may hereafter be brought, wherein, by act of assembly or rule of court, the plaintiff is entitled to ask for judgment for want of a sufficient affidavit of defense, and the court shall decide against his right to such judgment, plaintiff may except to such decision and take a writ of error to the supreme court.

12 P.S. § 1097.

Section 1097 was repealed effective June 27, 1980, but Lincoln Bank claims it is applicable here because the order of the lower court was entered before that date. The order was entered on June 26, 1980, but the appeal was taken on July 21, 1980. We have not located any case determining whether a statute conferring appellate jurisdiction is applicable when the order appealed was entered before the repeal date of the statute, but the appeal was taken afterward. We find it unnecessary to decide that issue.

Section 1097 by its very terms applies only to appeals by plaintiffs, whereas Lincoln Bank is the defendant. Our Supreme Court has specifically held that an order denying a defendant’s motions for judgment on the pleadings is interlocutory and nonappealable, and section 1097 is inapplicable to such an order. Bellotti v. Spaeder, 438 Pa. 219, 220 & n. 1. 249 A.2d 843, 344 & n.1 (1969). Therefore section 1097 does not give us jurisdiction, even if its repeal was not yet effective when this appeal was taken.

Lincoln Bank also claims in its brief that we should accept this appeal under Rule of Appellate Procedure 312, which provides:

An appeal from an interlocutory order may be taken by permission pursuant to Chapter 13 (interlocutory appeals by permission).

Pa.R.A.P. 312. The Chapter 13 referred to in Rule 312 specifically states in Rule 1311:

(a) General rule. An appeal may be taken by permission under 42 Pa.C.S. § 702(b) (interlocutory appeals by permission) from an interlocutory order of a lower court or other government unit. See Rule 312 (interlocutory appeals by permission).

Pa.R.A.P. 1311.

It is clear that an appeal by permission must meet the requirements of section 702(b) of the Judicial Code, which provides:

(b) Interlocutory appeals by permission.—When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.

42 Pa.C.S. § 702.

Section 702(b) does not give us jurisdiction, because the lower court’s order does not include the certification required by this section. Augelletta v. Fox, 278 Pa.Super. 1, 3—4, 419 A.2d 1325, 1326 (1980). Furthermore, even if the lower court had certified the case, we would have no jurisdiction, because Lincoln Bank has not filed a petition for permission to appeal, as required by Rule of Appellate Procedure 1311(b). Commonwealth v. Pfender, 280 Pa.Super. 417, 421, 421 A.2d 791, 793 (1980). The order of the court below not being appealable on any basis, we must quash the appeal.

Appeal quashed.

      . The reference in section 1097 to taking “a writ of error to the supreme court” presents no difficulty, because the section was suspended to the extent inconsistent with the Rules of Appellate Procedure by Rule 5105(e), and specifically repealed to the extent inconsistent with the Appellate Court Jurisdiction Act of 1970 [ACJA] (now superseded by the Judicial Code) by section 509(g)(19) of ACJA, added by Act of June 3, 1971, P.L. 148, No. 6, 17 P.S. § 211.509(g)(19) (Supp. 1978-79).

      . See sections 2(a) [633] and 4(b) of the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, No. 53, 42 P.S. §§ 20002(a) [633], 20004(b).

      . Lincoln Bank asserts that the order was entered on June 23, 1980, but June 26, 1980 was the date of entry as defined by Rule of Appellate Procedure 108(b). The difference does not affect any question before us.

      . Our Supreme Court stated in Kilian v. Allegheny County Distributors, 409 Pa. 344, 350-51, 185 A.2d 517, 520 (1962) that rights in jurisdictional matters are determined by the law in force at the time of the institution of the action, and we have applied this rule in deciding questions of appellate jurisdiction. E. g., Gallardy v. Ashcraft, 288 Pa.Super. 37, 44, 430 A.2d 1201, 1204 (1981). Neither Galiardy nor any of the cases it cited, however, involved the situation we have here.


author: O’KICKI, Judge: SPAETH, Judge,

text:
    436 A.2d 1021
    COMMONWEALTH of Pennsylvania ex rel. Anne DURSO, v. Richard A. DURSO, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1979.
    Filed Oct. 30, 1981.

      Stanley M. Poplow, Philadelphia, for appellant.
    Joseph P. Cronin, Jr., Milmont Park, did not file a brief on behalf of appellee.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       President Judge Joseph F. O’Kicki, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   O’KICKI, Judge:

The issue in this case is whether or not the Family Division of the Common Pleas Court has jurisdiction to enforce a private agreement of support that has been entered into record by mutual consent of the parties at a prior court hearing on the matter.

The Trial Court entered a Consent Order on April 24, 1974, encompassing the parties’ private agreement which had set forth their respective obligations of custody and support of a son, distribution of property, and other marital matters.

Again on March 22, 1979, another Order was entered by the Court of Common Pleas of Philadelphia County, Family Division, which directed Richard A. Durso (Father/Appellant) to pay the sum of $454.20 to Anne M. Durso (Mother/Appellee) for certain expenses of Richard A. Durson (son). The Trial Court’s Order was predicated on an Agreement made on February 25, 1970. This present matter arises out of the hearing which was held on mother’s Petition for Support, filed February 26, 1979 in which she alleged that Appellant had failed to comply with the terms of the aforesaid Agreement, and she sought compliance.

As the Trial Court aptly noted in the first paragraph of its opinion, an actual support order was entered in this case pursuant to an Agreement between Appellee and Appellant. It is abundantly clear from a reading of the Trial Court’s Opinion that it treated this matter as being an action on a court order rather than a support agreement.

Had the Trial Court used the Civil Procedure Support law as a remedy to collect payments due under a Separation Agreement executed pursuant to a divorce, it would have been improper. Commonwealth ex rel. Jones v. Jones, 216 Pa.Super. 1, 260 A.2d 809 (1969). However, the case at bar goes beyond a mere Agreement, as is evidenced by the language of her Petition, Appellee was indeed asking that Appellant comply with the terms of their previous Agreement, embodied in a prior court order.

“Defendant has failed to comply with terms of the Agreement which was entered as an Order of this Court on February 26, 1974. Petitioner seeks a Court Order for the defendant’s compliance with the terms of the Agreement as set forth on the Court Order.”

We do agree with the above stated purpose of the Legislature. However, consideration should be given also to the policy by which the Act was conceived. As Jones, id, further states “the object of all interpretation and construction of laws is to ascertain and effectuate the intention of the Legislature (citations omitted)” p. 810. The policy and purpose from which the Act arises is that of providing the amount of support needed for the maintenance of dependents. When these types of agreements are entered into by the legally obligated parties, even if not formally filed or court ordered, where else but in the Family Division of the court should they be challenged and enforced or dismissed? The function of this Division of the court system is precisely that—to deal with family, support and custody matters. Accordingly, we extend the dicta of Jones to include not only formal court ordered duties “imposable by law”, but also agreements as to support which deal with duties “imposable by law” due to the natural legal obligation placed upon parents and guardians to support their dependents.

This natural obligation need not have been set out in a mutually consented agreement. Nevertheless, for practicality and convenience sake, in some cases it has been. Those cases do not need a court determination as to the terms of separation since these terms are mutually agreed and binding. However, the parties should not suffer because of their diligence and amiability. It would be ironic indeed if those parties who choose to expend the court’s time and effort by requiring it to determine the support amount and terms and enter an Order to that effect would be more protected, and have more recourses open to them, than those parties who take it upon themselves to agree to the separation arrangements without initial court intervention.

The case of Commonwealth ex rel. Eqolf v. Eqolf, 49 D. & C.2d 400 (1970) at page 402 states:

“The Pennsylvania Civil Procedure Support Law applies to “duty imposed or imposable by law” . . . Commonwealth ex rel. Jones v. Jones, supra.

By filing the Agreement as part of the Court Order in 1974, the parties entered into “duties imposed or imposable by law.”

Thus, the foregoing analysis amply demonstrates that, under the instant factual and procedural setting, the Civil Procedural Support law and the Family Court Division of the Court of Common Pleas of Philadelphia County were the correct remedy and correct forum for this dispute.

As an alternative basis of non-liability, Appellant asserts that the Petition for Support was improperly brought in the name of Appellee/Mother, Anne Marie Durso. When the Petition was filed on February 26, 1979, the son was 21 years of age, being born June 8,1967. In view of this, Appellant alleges that he should have brought the Petition in his own name (i. e. the son’s name).

Appellee’s Petition was filed under the Civil Procedural Support Law Act of August 14, 1963, P.L. 872, § 1; 62 P.S. § 2043.35(b). It provides in pertinent part that “a complaint may be filed by any person ... to whom a duty of support is owing.” Although we need not reach the issue of the son’s self-supportiveness as a separate factor in determining the case, we address it here in conjunction with Appellant’s contention that Appellee cannot bring the action in her name.

The Trial Court found “that Richard is not entirely self-supporting.” Trial Court Opinion at p. 3. As fact finder, the Trial Court was in a better position than we to make this determination. After a review of the proffered testimony contained in the Notes of Testimony, we must agree with the Trial Court’s determination. Son, Richard, still requires support at this time by either of his parents during his college educational years, and until he moves onto the adult working world, sets up his own “home” and provides for himself. Age is not the only determining factor in the definition of “majority”. Blacks Law Dictionary at p. 1107 defines majority not only as “full age” but also as “the age at which, by law, a person is entitled to the management of his own affairs. . . ”. The Agreement here provides for Appellant’s payment of support to Appellee during Richard’s educational years. Thus, although 21 years of age, the Trial Court recognized the Agreement that he is not managing his own affairs and Appellee is still in the position “to whom a duty of support is owing” as she was before Richard attained the age of 21. Support of their still-dependent son is due her under the Court enforced Agreement. She can bring the action herself or on behalf of her son as the real party in interest.

This action has been brought in the correct forum by the correct party, contrary to Appellant’s first two arguments in support of his non-liability. In reaching these findings we necessarily hold that there has been no abuse of the Trial Court’s discretion in its decision. A reviewing court will overrule a Trial Court’s determination of a support Order when there is a clear abuse of discretion. Commonwealth ex rel. Schmidt v. Schmidt, 223 Pa.Super. 20, 296 A.2d 855 (1972). The Trial Court, as fact finder, has found that Richard is not self-supporting (as discussed above) and that the transportation expenses claimed by Appellee not only “are included in the Father’s obligations under the 1970 Agreement” but in addition, “appear reasonable.” Accordingly, they were granted.

We see no evidence in the Notes of Testimony or supplied Briefs contrary to these findings requiring that they be overturned.

Order Affirmed.

CAVANAUGH, J., concurs in the result and joins in the concurring statement of SPAETH, J.

SPAETH, Judge,

concurring:

I agree with the majority that the order of the lower court should be affirmed. Appellee originally filed a petition for support on March 5, 1971, which made no reference to the prior private agreement between the parties; she merely recited that she was receiving $25 a week in support of their son, and requested an increase in that amount. It was appellant in his answer to the petition for support who pleaded the private agreement, attached it as an exhibit, and asked the court to rescind it in part and require him to pay only $10 a week. The response of the lower court was to enter an order on April 6, 1971, requiring appellant to continue to comply with the existing agreement. The April 1974 consent order resulted from a petition for support that was filed by appellee and alleged breach of the April 6,1971, order. Thus it is clear that the order now being appealed from is not an order enforcing a private agreement but rather an order enforcing at least two prior court orders.

Having said this much, I believe we should stop. I find the language in the majority opinion, slip op. at 3, too broad. Until and unless the terms of a private agreement have been embodied in a court order, however entered, whether by consent or not, the holding of Commonwealth ex rel. Jones v. Jones, 216 Pa.Super. 1, 260 A.2d 809 (1969), is clear: a private support agreement that has not been entered as a court order may not be enforced as a support order but may only be the subject of a law suit, like any other private agreement. This principle, of course, does not prevent one to whom a duty of support is owing from filing a petition for support in an amount in keeping with the agreement, and then seeking enforcement of whatever order the court enters.

      . Neither appellant’s statement of the case, Brief for Appellant at 3, nor his highly selective listing of docket entries, Reproduced Record at la, makes any mention of the 1971 court order.