author: CIRILLO, Judge: McEWEN, Judge,

text:
    466 A.2d 1030
    COMMONWEALTH of Pennsylvania, v. Jeffrey CARR, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1981.
    Filed Aug. 26, 1983.
    Reargument En Banc Denied Nov. 8, 1983.
    Petition for Allowance of Appeal Granted April 3, 1984.

      See also 471 Pa. 86, 369 A.2d 1207.

      Marilyn Young, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, McEWEN and CIRILLO, JJ.
   CIRILLO, Judge:

Appellant, Jeffrey Carr, appeals from the denial by the lower court of his petition for post conviction relief pursuant to the Post Conviction Hearing Act (PCHA). In his petition, filed by appointed counsel, appellant alleges ineffective assistance of both trial and appellate counsel because of the introduction of his confession into evidence at trial. Counsel, who represented appellant at the PCHA hearing and who, also, represents him on this appeal, did not represent appellant at trial or on appeal from appellant’s conviction of first degree murder.

Appellant was indicted for murder, voluntary manslaughter, involuntary manslaughter, criminal conspiracy, and possession of an instrument of crime. These charges stemmed from the following events. During the evening of November 23, 1974, appellant, then seventeen years old, engaged in two fistfights with the decedent, Calvin Dantz-ler, fifteen years old. Shortly after the second fight, appellant encountered the victim again and shot him. The police arrested the appellant on November 24, 1974. He was taken to police headquarters, given Miranda warnings, agreed to give a statement to the police; and, pursuant to a police officer’s questions, he admitted fighting with the victim and shooting at the victim’s legs.

On March 27, 1975, appellant filed a motion to suppress this statement. This motion was denied on April 1, 1975. On May 1, 1975, a jury trial commenced, and the appellant was found guilty of first degree murder, criminal conspiracy and possession of an instrument of crime. Motions for new trial and in arrest of judgment, alleging insufficiency of the evidence, were filed and denied on October 7, 1975. Appellant was sentenced to life imprisonment on the murder conviction.

Appellate counsel appealed the conviction to the Supreme Court of Pennsylvania. Appellate counsel raised the issue that:

[A]ppellant’s incriminating statements made to the police during custodial interrogation should not have been introduced at trial as evidence against him because at the time of the questioning he was age seventeen and was not afforded the opportunity to consult with counsel or another interested and informed adult prior to surrendering his constitutional rights.

Commonwealth v. Carr, 471 Pa. 86, 88, 369 A.2d 1207, 1208 (1977). The issue was deemed waived by the Supreme Court of Pennsylvania because it was not raised in appellant’s post-trial motions or during post-trial proceedings. Likewise, from our review of the record, this particular issue was not raised at the suppression hearing. There existed a question as to appellant’s actual age at the time of arrest. At one point during appellant’s interrogation, he indicated that he was eighteen years of age.

Appellant alleges the ineffectiveness of trial counsel at the suppression hearing, at trial, and in post-trial proceedings for not moving for the suppression of his statement based on the absence of a parent or an interested adult at the interrogation; and, he alleges the ineffectiveness of appellate counsel for not placing before the appellate court the ineffectiveness of trial counsel in not raising the above issue.

Ineffectiveness of prior counsel must be raised at the earliest stage in proceedings at which counsel whose ineffectiveness is being challenged no longer represents the accused.

Commonwealth v. Hubbard, 472 Pa. 259, 276-77, 372 A.2d 687, 695 (1977) (FN eight); citing Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975), Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

Since appellate counsel did not raise trial counsel’s ineffectiveness, and trial counsel did not raise his own alleged ineffectiveness, the issue is properly before us on this appeal.

The case of Commonwealth ex rel. Washington v. Maro-ney, 427 Pa. 599, 235 A.2d 349 (1967), discussed at length the basis of our inquiry and the methods of evaluation for allegations of ineffective assistance of counsel.

Our task in cases of this nature therefore encompasses both an independent review of the record (citations omitted), and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized. Obviously, then, if there is no reasonable basis to support trial counsel’s decisions (a finding prerequisite to a conclusion of ineffectiveness), his decisions were a fortiori prejudicial to the client.

Id., 427 Pa. at 605 fn. 8, 235 A.2d at 353 fn. 8.

We stress that each case requires a resolution by examination of the alternatives available to trial counsel balanced against the course chosen.

Id., 427 Pa. at 613, 235 A.2d at 357.

At the suppression hearing, trial counsel challenged on the witness stand the police officer who took the appellant’s statement as to whether the appellant knew of the charges against him, whether only one officer was present at appellant’s questioning, and whether appellant was under the influence of drugs or alcohol. As stated earlier, trial counsel did not argue at the suppression hearing, at trial, or in post-trial motions the absence of a parent’s or interested adult’s consent to the appellant’s waiver of his constitutional rights because the appellant was seventeen at the time of the arrest. At the PCHA hearing, on cross-examination by PCHA counsel, trial counsel was asked whether he verified the age of appellant. He stated that he did not pursue verification of appellant’s age, and that he did not think that it mattered whether appellant was six, seven, eight months or a year younger than eighteen years of age. PCHA counsel asked trial counsel why he did not raise the age of appellant as an issue in the post-trial motions. Trial counsel answered that he did not remember the post-trial motions. Also, during the PCHA hearing, appellate counsel, although not present, stipulated in writing, that he had no tactical reason for his failure to raise trial counsel’s ineffectiveness for failure to raise the issue that appellant was a juvenile at the time of the arrest and at the time when the statement was given.

Counsel’s stewardship must be examined by the standards as they existed at the time of counsel’s action, and counsel will not be deemed ineffective for failing to predict future developments in the law at the time he decided on a course of action. Commonwealth v. Triplett, 476 Pa. 83, 89-90, 381 A.2d 877, 881 (1977); citing, Commonwealth v. Hill, 450 Pa. 477, 480, 301 A.2d 587, 590, Commonwealth v. Alvarado, 442 Pa. 516, 518, 276 A.2d 526, 527 (1971).

At the crux of the appellant’s argument in this appeal is the “interested adult rule” adopted in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669, cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1975). Known as the McCutchen rule, this doctrine provides that an accused under 18 years of age may not effectively waive his constitutional rights against self incrimination and the right to counsel without being provided an opportunity to consult with an attorney or an adult, interested in the welfare of the juvenile suspect. See: Commonwealth v. McCutchen, supra; also: Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); Commonwealth v. Barry Smith, 472 Pa. 492, 372 A.2d 797 (1977). The heart of the McCutchen rule is the concern that the immaturity of a minor defendant requires its added protection. Commonwealth v. Hernandez, supra; Commonwealth v. Barry Smith, supra.

The appellant’s mother arrived at police headquarters within an hour of the appellant’s arrest, was informed about the interrogation which was taking place, but was never told that she could enter the interrogation room where the appellant was detained. A police officer questioned her about the appellant’s age, that is, whether the appellant was seventeen or eighteen years old. The appellant’s mother verified the appellant’s age as seventeen by showing his birth certificate to the police a short time after his arrest. Approximately two and one-half hours after the appellant’s arrest and interrogation his mother was permitted to speak with him.

The McCutchen case was not decided until July 7, 1975, almost two months after this present matter was tried. Therefore, counsel could not be held ineffective for failing to seek suppression of appellant’s statement on McCutchen grounds before the McCutchen rule was adopted. Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979). However, the McCutchen rule was in effect before a decision was rendered on the post-verdict motions. In Commonwealth v. Chaney, 465 Pa. 407, 409, 350 A.2d 829, 830 (1975), the Supreme Court stated:

While appellant’s arrest, confession and trial took place before our decisions concerning a juvenile’s waiver of his Miranda rights, he is nevertheless entitled to the benefit of those decisions since he was on direct appeal at the time of our McCutchen decisions. See Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968).

See also: Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978).

Further, the Court in Commonwealth v. Hernandez, 498 Pa. at 411, 446 A.2d at 1271, articulated the following:

Moreover, the Barnes and Chaney decisions providing for the retroactive application of McCutchen to then pending cases can in no way be construed as allowing new issues to be introduced which were not then under consideration in those proceedings. The retroactive application of McCutchen represented the implicit acceptance of the view that fairness dictated the applicability of the newly announced principle to all similarly situated litigants. Commonwealth v. Hill, 492 Pa. 100, 111, 422 A.2d 491, 497 (1980) (Opinion in Support of Reversal, Roberts, J.); Commonwealth v. Cain, 471 Pa. 140, 167, 369 A.2d 1234, 1248 (1977) (Opinion in Support of Affirmance, Pomeroy, J.). In such an instance it is fair to conclude that all of those litigants were in the same situation and the outcome of their lawsuit should not depend on a race to the courthouse. However, a different situation obtains where one has seen fit to raise the objection and another has not.

In the present matter, trial counsel did not raise the interested adult rule on post-trial motions. Accordingly, we hold that trial counsel was ineffective for failing to raise the narrow exclusionary rule adopted in McCutchen and reiterated in Henderson. Additionally, appellate counsel was ineffective for failing to raise on appeal the issue of trial counsel’s ineffectiveness in this regard. Therefore, we reverse and remand for a new trial.

JURISDICTION IS RELINQUISHED.

McEWEN, J., files a concurring opinion.

McEWEN, Judge,

concurring:

I am obliged under the McCutchen Rule—the interested adult rule—pronounced by the Pennsylvania Supreme Court in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669, cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1975), to join in the very able majority Opinion but am nonetheless dismayed that we may not consider the totality of the circumstances in such cases and must instead employ a narrow, rigid per se rule of exclusion. Commonwealth v. Henderson, 496 Pa. 349, 437 A.2d 387 (1981). The United States Supreme Court has made clear that the federal constitution does not mandate so unyielding a requirement as the McCutchen Rule. See Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). So rigorous an approach seems, in a word, unreasonable. Our society is far better served—while still adequately protected from the intrusion of government—by a criminal justice system that achieves the goal of fairness. Thus, while the citizens of this Commonwealth would be far better served by application of the totality of circumstances rule in such cases as we here examine, this court has no alternative but to comply with the edict of our Supreme Court in McCutchen, supra.

      . Pa.RXrim.P., Rule 1501, 19 P.S. § 1180-1, et seq.

      . Trial and appellate counsel are different attorneys.

      . Other issues were raised, but not discussed because we grant a new trial.

      . Act of March 26, 1974, P.L. 213, No. 46, § 4, as amended, Act of April 28, 1978, P.L. 84, No. 39, § 1, 18 Pa.C.S.A. § 2502.

      . Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 2503.

      . Id., 18 Pa.C.S.A. § 2504.

      . Id., 18 Pa.C.S.A. § 903.

      . Id., 18 Pa.C.S.A. § 907.

        . The Pennsylvania Supreme Court has recently reinforced the holding of McCutchen and subsequent cases regarding the "interested adult rule.” In Commonwealth v. Henderson, 496 Pa. 349, 437 A.2d 387 (1981), the Court held that the United States Supreme Court interpretation of the federal constitution could not disturb the force of the Commonwealth’s interested adult rule which, as a matter of Pennsylvania law, effects that police, seeking to subject juvenile suspects to custodial interrogation, are first required to provide the juvenile with the opportunity to consult with an adult interested in the juvenile’s welfare.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    466 A.2d 1035
    Daniel B. BRANDSCHAIN and Robin Tiesler v. Fred LIEBERMAN. Appeal of Daniel B. BRANDSCHAIN.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1983.
    Filed Sept. 2, 1983.
    Reargument Denied Nov. 10, 1983.
    Petition for Allowance of Appeal Denied March 7, 1984.

      Sidney M. Deangelis, Norristown, for appellants.
    Richard S. Watt, Norristown, for appellee.
    Before CERCONE, President Judge, and JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an Order of the Court of Common Pleas, Montgomery County, granting a motion for judgment on the pleadings on the ground of res judicata.

The facts and procedural history of this case are set forth as follows. Prior to July 28, 1969, the appellant, Daniel B. Brandschain, and one Robin Tiesler, had purchased some four hundred eighty-three (483) acres of land in Wyoming County, Pennsylvania and formed a company called The Miller Mountain Development Company (hereinafter “Company”). Thereafter, appellant, Tiesler, and appellee, Fred Lieberman, entered into an agreement whereby the acreage of the Company would be transferred to a corporation known as The Miller Mountain Corporation (hereinafter, “Corporation”) of which appellee would own seventy-five per cent (75%) of the equity stock and fifty per cent (50%) of the voting stock. A Shareholders Agreement encompassing these and other provisions was entered into on July 28, 1969.

Pursuant to this Agreement, appellee advanced the sum of $452,624.00 to the Corporation for the acquisition of land, engineering fees, economic surveys and the like. Subsequent to the advancement of these funds, appellee requested that the shareholders elect to qualify the Corporation as a sub-chapter “S” Corporation so that he, appellee, could deduct his advances as losses on his personal income tax return. The parties agreed to this and appellant, as Vice President of the Corporation, signed thirty-eight demand notes to the Order of appellee. On December 6, 1972, the appellee instituted an action in assumpsit against the Corporation seeking to recover on the demand notes and sought a judgment against the Corporation for the sum of $452,-625.00, the amount of his advances. Appellant and Tiesler intervened in the action and filed an Answer, New Matter and Counterclaim alleging that appellee obtained the notes through fraud and deceit and that the notes were merely evidence of debt without independent legal significance. The appellant also alleged that the appellee breeched the terms of the July 28, 1969 agreement which set forth that appellee would provide the Corporation with 2.5 million dollars for land acquisition and would make available to the Corporation his credit line at Fidelity Bank of eight (8) million dollars. Appellant and Tiesler also claimed that appellee had denied them access to the Corporation books and records and that appellee sought to gain control of the Corporation by threatening that he would not provide the Corporation with funds to pursue its business affairs unless he was granted control.

The assumpsit action proceeded to trial before the Honorable William W. Vogel and a jury. Upon an agreement signed by counsel for the parties and by the court, the jury was directed to return a verdict in favor of the appellee for the sum of $724,457.90. After a correction in the computation of interest, the verdict was molded and reduced to $632,843.84 by Order of the court dated March 21, 1978. Judgment was entered on the same day. However, there was no agreement for verdict on the appellant’s counterclaim and no jury verdict was rendered thereon.

Contemporaneous with the directed verdict, the court recited the stipulation of counsel that the appellee would not take further action, on the judgment for a period of sixty (60) days during which appellant and Tiesler would be allowed to institute an action in equity based on their counterclaim. Judge Vogel believed that the only way that the equitable rights of the parties could be properly addressed and resolved was pursuant to the equity action. This stipulation was incorporated into a consent order dated March 21, 1978.

On May 12, 1978, the Complaint in Equity was filed. Appellee filed preliminary objections raising, inter alia, the defense of res judicata alleging that a verdict had been rendered in this matter and therefore appellant and Tiesler could not relitigate it. This preliminary objection was denied by Judge Vogel. Appellee subsequently filed an answer to the complaint raising again the defense of res judicata. Appellee then filed a motion for judgment on the pleadings which was argued before an en banc panel consisting of the Honorable Vincent A. Cirillo, the Honorable Richard S. Lowe as well as the Honorable William W. Vogel. Judge Cirillo, writing for the majority, granted the motion for judgment on the pleadings based on res judica-ta. Judge Vogel filed a dissenting opinion stating that he would deny the motion.

The appellant contends primarily that the complaint in equity should not have been barred by the doctrine of res judicata since the more controlling issues raised therein were not litigated or resolved in the prior assumpsit action. The appellant also argues that the appellee should not have been permitted to raise the res judicata defense in his motion for judgment on the pleadings since that defense had already been briefed, argued and denied in his preliminary objections. Appellee argues that res judicata applies as a result of the agreement of the parties to the directed verdict and the subsequent consent order.

With regard to appellant’s first argument, the doctrine of res judicata will apply where the cause of action in one suit is identical with that involved in a prior judgment. Lebeau v. Lebeau, 258 Pa.Super. 519, 393 A.2d 480 (1978). “Thus a final judgment rendered by a court of competent jurisdiction on the merits is conclusive of the rights of the parties and their privies and constitutes a bar to a subsequent claim, demand or cause of action and issues determined therein.” Id., 258 Pa.Superior Ct. at 525, 393 A.2d at 482, citing Jenkins v. Jenkins, 246 Pa.Super. 455, 371 A.2d 925 (1977). To support a claim of res judicata, four conditions must be established: (1) the identity of the cause of action; (2) the identity of the persons or parties to the action; (3) the identity of the quality or capacity of the parties sued or being sued; and (4) the identity of the thing sued upon. Id., Thompson v. Karastan Rug Mills, 228 Pa.Super. 260, 323 A.2d 341 (1974). Once it has been established that the concurrence of these four identities exist, it must be determined whether the ultimate and controlling issues have been decided in the prior proceeding. Id.

A consent order, such as the one issued here, is not a legal determination of the matters in controversy. Univer sal Builders Supply, Inc. v. Shaler Highlands Corporation, 405 Pa. 259, 175 A.2d 58 (1961). However, it does have a res judicata effect, binding the parties with the same force as a full hearing on the merits. Pennsylvania Human Relations Commission v. Ammon K. Graybill, Jr., Inc., Real Estate, 482 Pa. 143, 393 A.2d 420 (1978). A consent decree will be held to be a final adjudication on the merits binding the parties as res judicata if it appears from the record that the parties intended to be so bound. Keystone Building Supply Corp. v. Lincoln Savings and Loan Association, 468 Pa. 85, 360 A.2d 191 (1976).

In the instant case, we note, initially, that the causes of action of both proceedings are not identical. The prior action was in assumpsit; the subsequent action, in equity. Moreover, while the parties to both actions are identical, each party is operating in different capacities—in the as-sumpsit action, the appellant was an intervenor-defendant and the appellee was the plaintiff; in the equity action the appellant is the plaintiff while the appellee is the defendant. More important, however, is the fact that not all of the issues raised in the appellant’s equity action are identical to those encompassed by the agreement, consent order and final judgment in the assumpsit action.

At the time the parties agreed to the directed verdict, the appellant conceded that the demand notes sued upon were legally valid and binding and that a certain amount of money was owed to the appellee. In exchange for this concession, appellee agreed that no action would be taken on the demand notes until appellant's equity action was filed and resolved. It was also agreed that certain issues regarding interest computation on the debt, interpretation of the Shareholders Agreement of July 28, 1969 and the times and names of execution on the judgment would be reserved for the equity action.

In his Complaint in Equity, the appellant does challenge the validity and legal significance of the demand notes. He alleges that these notes were obtained by appellee through fraud and deceit and therefore appellee should be permanently precluded from executing on the judgment. We disagree with the appellant insofar as this particular issue was resolved by the agreement in the prior action and because a consent order and final judgment were entered thereon, the appellant is barred from relitigating it in his equity action. The appellant argues, however, that his complaint raises other, more controlling issues that were not disposed of in the assumpsit action and, therefore, are not res judicata. We agree.

Essentially, the appellant alleges in his complaint that appellee embarked on a scheme to seize control of the Corporation and divest the plaintiff of any interest in the same. It is alleged that appellee has done this by putting the Corporation in a financially embarrassing predicament and then refusing to advance funds to the Corporation in violation of paragraph 7 of the Shareholders Agreement. With regard to these claims, appellant generally seeks (1) a court order appointing a receiver to conduct the business of the Corporation for the benefit of the shareholders; and (2) an order directing appellee to advance funds to the Corporation as needed to go forward with the development of the Corporation pursuant to the Shareholders Agreement. The appellant also requests an order restraining any payment of funds to appellee until the Corporation has enough funds that are not used for other purposes and until the Corporation has exhausted the possibilities of development, sale or acquisition of capital from other investors. Other claims include the allegation that appellee has refused to allow the appellant to inspect the Corporation’s various books and records.

The appellee argues, and the court below determined, that these issues are res judicata as they constitute an attempt to modify the final judgment in the prior assumpsit action. Our review of the record discloses, however, that the only issue disposed of in the prior action was that of the validity and legal significance of the demand notes. The issues in question are either entirely unrelated to the demand notes or are among those which, by agreement, were reserved for the equity action. Because these issues were not litigated or resolved by agreement in the prior action and because no final judgment was entered on their merits, we hold that the doctrine of res judicata is inapplicable. To hold otherwise would be to deny the appellant his day in court.

The order of the court below granting the motion for judgment on the pleadings is affirmed to the extent that the appellant is precluded from challenging the validity and legal significance of the demand notes in his equity action. With regard to all other issues raised in the appellant’s equity action, the order granting the motion for judgment on the pleadings is reversed and this case is remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

CERCONE, J., concurs in the result.

      . This Order was not entered in a separate document as required by Pa.R.A.P., Rule 301(b), 42 Pa.C.S.A. However, it is evident that the opinion of the court below was intended to represent the final decision in this case and the docket refers to this decision as an order. Moreover, the appellee did not object to the taking of the appeal in absence of a separate judgment. Under these circumstances, the parties are deemed to have waived this procedural requirement. See Pa.R.A.P., Rule 301, Note.; Bankers Trust Co., v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978).

      . Robin Tiesler is not a party to this appeal.

      . The Honorable William W. Vogel, dissenting opinion, p. 6.

      . The Honorable Vincent A. Cirillo is now serving on the Superior Court of Pennsylvania.

      . Notes of Testimony (hereinafter, N.T.) February 22, 1978, pp. 12-13, 16.

      . N.T. February 22, 1978, pp. 15-16.

      . We note that while appellant attempted to relitigate the issue of the legal validity of the demand notes in his equity action, on appeal, he acknowledges that such notes are valid and that a certain amount of money, as agreed, is owed to the appellee.

      . The pertinent portion of the Shareholders Agreement provides as follows:
      "... Investor further agrees that he will provide the Corporation with whatever funds are necessary to pay any written contractual and tax obligations which have been incurred by the corporation with his written consent...”

      . In light of this decision, we need not consider the merits of appellant’s argument that the appellee should be precluded from arguing the defense of res judicata in the motion for judgment on the pleadings.


author: HOFFMAN, Judge:

text:
    466 A.2d 1039
    COMMONWEALTH of Pennsylvania v. Gary Lee GONCE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 3, 1983.
    Filed Sept. 30, 1983.
    Petition for Allowance of Appeal Denied Feb. 28, 1984.

      Brian S. Quinn, Havertown, submitted a brief on behalf of appellant.
    David E. Fritchey, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the verdict was against the weight of the evidence, and that the lower court erred in (1) refusing to dismiss the charges against him pursuant to the Interstate Agreement on Detainers; (2) granting the Commonwealth’s petition to extend under Pa.R.Crim.P. 1100 and the Detainer’s Agreement; (3) permitting evidence of prior convictions; (4) refusing to recuse itself; and (5) making various trial rulings. Finding no merit in appellant’s numerous contentions, we affirm the judgment of sentence.

On October 24, 1980, following an October, 1977 robbery in Delaware County, appellant was extradited from the state of Delaware to Pennsylvania after lengthy proceedings pursuant to the Interstate Agreement on Detainers, 42 Pa.C.S.A. § 9101 et seq. Once in Pennsylvania, appellant was found guilty after a jury trial of robbery and conspiracy. Following the denial of post-trial motions, appellant was sentenced to consecutive terms of ten-to-twenty years imprisonment for robbery and five-to-ten years for conspiracy, both Pennsylvania sentences to run consecutive to appellant’s Delaware sentence. A motion to reconsider sentence and post-verdict motions were denied, prompting this appeal.

I.

Appellant contends first that the jury’s guilty verdict was contrary to the weight of the evidence. “The grant of a new trial on the ground that the verdict is against the weight of the evidence is generally committed to the sound discretion of the trial court. Where the evidence is conflicting, the credibility of the witnesses is solely for the jury, and if its finding is supported by the record, the trial court’s denial of a motion for a new trial will not be disturbed.” Commonwealth v. Larew, 289 Pa.Superior Ct. 34, 37, 432 A.2d 1037, 1038 (1981) (citations omitted). Further, “it must appear from the record that the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative.” Commonwealth v. Barnhart, 290 Pa.Superior Ct. 182, 185, 434 A.2d 191, 192 (1981). So viewed, the evidence is as follows: Robert Mattei, owner and manager of Spam’s seafood restaurant, testified that on October 31, 1977, at 2:00 a.m., he was robbed by two hooded, armed men, outside of his restaurant, struck with a gun and thrown into the trunk of his car. Appellant’s co-conspirators, Bearl Bonecutter, Jr., and Steven Davidson, testifying for the Commonwealth pursuant to plea agreements, both stated that appellant was involved in planning and executing the crime and drove the car transporting them to and from the scene. (N.T. March 30, 1981 at 36.) Police Officer Narvell testified that in the early morning hours he had seen an orange and white Ford Pinto on Baltimore Pike driving toward and away from Spam’s restaurant four times. Although Narvell could not identify the passengers, he noted that their number changed several times. Appellant offered the testimony of three alibi witnesses who stated that appellant was at a party at one of their homes on the morning in question. Appellant also presented a letter allegedly signed by Bone-cutter, his signature verified by an expert witness, stating that Bonecutter was lying about appellant’s involvement in order to receive a favorable deal from the Commonwealth. The Commonwealth’s own handwriting expert testified that in his opinion, Bonecutter had not signed the letter.

Although the testimony of Bonecutter and Davidson stems from corrupt, polluted sources and must therefore be carefully scrutinized by the fact-finder, Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980), “guilt or innocence may be predicated on [the] uncorroborated testimony of an accomplice.” Id.; see also Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975). In addition, the jury, in evaluating the witness’ credibility may accept all, part or none of his testimony. Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981). Here, the jury accepted the Commonwealth’s evidence of appellant’s direct participation in and execution of the robbery. We cannot find the verdict so against the weight of the evidence as to shock one’s sense of justice and, accordingly, find no merit in appellant’s contention.

II.

Appellant next raises several challenges to the lower court's refusal to dismiss the charges against him pursuant to the Interstate Agreement on Detainers, 42 Pa.C.S.A. § 9101 et seq.

A.

First, appellant argues that his application for habeas corpus relief should have been granted because Delaware officials failed to comply with Art. III(c) of the Agreement on Detainers. Although we agree that Delaware prison officials failed in their duty toward appellant, his requested relief, dismissal of charges in Pennsylvania, cannot be granted. When a foreign state has lodged a detainer against a prisoner

[t]he warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.

42 Pa.C.S.A. § 9101, Art. III(c). Here, the testimony at appellant’s habeas corpus hearing leaves us in doubt as to whether appellant was fully informed of the Pennsylvania detainers lodged against him and his accompanying rights. On direct examination, appellant contended that he was shown the Pennsylvania detainers but they were never explained and he was never informed of his right to request a final disposition of charges. On cross-examination, however, he admitted that he was told on July 10, 1980, that there were outstanding charges, detainers lodged against him, and that he “knew they were trying to get me up here [Pennsylvania].” (N.T. January 9, 1981 at 7). Appellant also testified that he knew from approximately August of 1979 that Pennsylvania was attempting to extradite him from Delaware. The Commonwealth elicited testimony indicating that appellant viewed the detainers and refused to sign them on July 10, 1980. We are not convinced that appellant was informed of his right to request a final disposition, however, because the Commonwealth failed to present evidence of Delaware’s full compliance with Art. III(c). Cuyler v. Adams, 449 U.S. 433, 440, 101 S.Ct. 703, 707, 66 L.Ed.2d 641 (1981), implies that the rights accorded prisoners under Art. III(c) must be provided by officials. In Cuyler, the Supreme Court held that prisoners involuntarily transferred by detainer pursuant to Art. IV were entitled to the same pre-transfer rights as those prisoners transferred under the Extradition Act. The Court noted that those prisoners who initiate their own transfer under Art. Ill, however, are not entitled to these same rights, i.e. a pre-trial hearing, because Art. Ill has its own safeguards that “[require] the warden to notify the prisoner of all outstanding detainers and then to inform him of his right to request final disposition of the criminal charges underlying those detainers.” Id. at 444, 101 S.Ct. at 709. Therefore, appellant was clearly entitled to not only be informed of the detainers, but to be told of his right to request a final disposition.

Notwithstanding our doubt that appellant was fully informed of his rights, we do not agree that the Delaware prison officials’ lapse dictates that the Pennsylvania charges be dismissed. The Detainers Agreement specifically provides for a remedy of dismissal of charges in three situations: (1) if trial is not commenced within the period prescribed in Art. 111(a) and Art. IV(c) as specified by Art. V(c); (2) under Art. IV(e) where trial does not commence before the prisoner is returned to the sending state; and (3) when the receiving state fails or refuses to accept temporary custody under Art. V(c). Because the legislature chose to mention the specific situations when dismissal of charges is the appropriate relief, we will not generalize the relief and extend it to cover possible procedural errors made by another state’s prison officials. Accordingly, under the Detainers Agreement we will not dismiss the Commonwealth’s charges against appellant.

B.

Appellant next challenges the lower court’s refusal to hold a hearing on and the denial of his pre-trial petition to dismiss for violation of his Art. 111(a) speedy trial rights. Art. 111(a) provides:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint

42 Pa.C.S.A. § 9101, Art. 111(a) (emphasis added). Appellant maintains that on July 24, 1980, he requested final disposition of the detainers and should therefore have been tried within 180 days or by January 26, 1981. We find this contention without merit. First, appellant delivered his alleged request for final disposition to the Delaware County Clerk of Courts and not to the prosecuting officer as required by Art. 111(a). Second, we cannot reasonably interpret the document, entitled “Defendant’s Answer to Application for Extending Time for Commencement of Trial and Motion to Dismiss Charges”, as requesting final disposition. In appellant’s pro se answer he wrote, “The petitioner states that he was ready, and prepared and able to proceed with the trial since September, 1979 ____” This language does not request final disposition of the detainers. In addition, appellant’s answer was filed in response to the Commonwealth’s petition to extend under Pa.R.Crim.P. 1100. Accordingly, we find that appellant was not entitled to be tried by January 26, and thereby was not denied his speedy trial rights under Art. III(c).

C.

Appellant next alleges that the lower court erred in granting the Commonwealth’s request to extend time until trial pursuant to Art. IV(c) and Pa.R.Crim.P. 1100. We find these contentions without merit. The dates pertinent to evaluating appellant’s claims are as follows: On August 9, 1979, the Commonwealth entered the criminal complaint against appellant. On January 25,. 1980, the Commonwealth petitioned to extend time for trial to 120 days after appellant’s (then future) arrival in Pennsylvania. The petition was granted on March 5, 1980 and continued on July 25. On October 29, appellant arrived in Pennsylvania to face three related robbery charges, making the rúndate February 21, 1981. All three were listed for trial as of January 26, 1981; however, on January 13 the Commonwealth petitioned to consolidate the three. The lower court, pursuant to appellant’s opposition, denied the request. Trial proceeded on one of the other cases on January 26 and appellant was acquitted of that robbery on January 28. The next day, the Commonwealth petitioned to extend time for trial pursuant to both Art. IV(c) and rule 1100.

Under Art. IV(c), “trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” 42 Pa.C.S.A. § 9101 Art. IV(c) (emphasis added). The record indicates that the lower court was not available to try defendant on January 29. The court noted that

The Court [had] been specially ordered by the Chief Justice of Pennsylvania to preside in Philadelphia in a trial beginning tomorrow which will take approximately three or four days. In addition to that, we have an extensive motion list for the end of next week. In addition to that, we have a case involving a prosecution for murder in the first degree where I understood the Commonwealth is seeking the death penalty which has been scheduled for trial either the latter part of, I believe, the latter part of February.
In addition to that, we have several other rather protracted cases all scheduled for jury trials in the month of February where Rule 1100 is of paramount importance and the Court makes the assertion on the record that there is simply no time available prior to the trial and disposition of those cases to have the cases involving this defendant tried by a jury.

(N.T. January 29, 1981 at 6). We find the court’s documented unavailability good cause to grant the Commonwealth’s petition to extend under Art. IV(c).

Similarly, under Pa.R.Crim.P. 1100(c),

[T]he trial court may grant an extension ... only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-50 (1976). See Commonwealth v. Bytheway, 290 Pa.Superior Ct. 148, 434 A.2d 173 (1981); Commonwealth v. Delpiano, 290 Pa.Superior Ct. 510, 434 A.2d 1260 (1981). Here, the Commonwealth, demonstrating due diligence, petitioned for a consolidation of the three actions pending against appellant. The lower court denied the petition because of appellant’s opposition. Had the Commonwealth been successful, appellant would have been tried on this information in late January, 1981, well before the February 21 rúndate. Furthermore, the record clearly indicates that trial was scheduled for the earliest date consistent with the court’s availability and demonstrates the specific causes of the court’s delay. Accordingly, the lower court properly granted the Commonwealth’s petition to extend time for trial under rule 1100(c).

III.

Appellant next challenges several of the lower court’s trial rulings.

A.

Appellant contends that the lower court erred in permitting Officer Narveli’s testimony because it was unduly prejudicial. We find this contention meritless. Evidence that establishes a material fact or tends to make a fact at issue more or less probable, is relevant. Commonwealth v. Brown, 489 Pa. 285, 303, 414 A.2d 70, 79 (1980); Commonwealth v. Myers, 439 Pa. 381, 384, 266 A.2d 756, 758 (1970). Further, rulings on evidentiary questions “are controlled by the discretion of the trial court and this Court will reverse only for clear abuse of that discretion.” Commonwealth v. Scott, 469 Pa. 258, 270, 365 A.2d 140, 146 (1976). In the instant case, Officer Narvell testified that while on duty in the early morning hours of October 31, 1977, he saw an orange and white Ford Pinto with Delaware license plates travelling on Baltimore Pike toward Spam’s restaurant two times, and away from the restaurant, two times. On the car’s first trip, headed toward the restaurant, three persons were in the car. On its return, the car had only one occupant. As it headed a second time in the direction of the restaurant it had one occupant, but it headed away from Sparns the last time with three. All four sightings occurred between approximately 12:30 a.m. and 2:30 a.m. Officer Narvell’s testimony corroborated Bone-cutter’s and Davidson’s testimony that an orange and white Pinto was the vehicle used to transport the conspirators to and from the scene of the crime. Characterized as such, the evidence aided the court’s inquiry and was therefore probative and relevant. Accordingly, we find no merit in appellant’s contention.

B.

Appellant next challenges the lower court’s manner of deciding and final decision to admit evidence of his prior criminal record. With regard to the lower court’s decision-making process, appellant challenges (1) the court’s refusal to hold a pre-trial hearing, and make a pre-trial ruling on the evidence’s admissibility; and (2) the court’s decision to determine admissibility only after appellant took the stand. Appellant’s first contention is patently meritless as the lower court held a pre-trial hearing at which appellant’s counsel requested a ruling under Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), as to the admissibility of appellant’s prior convictions. Appellant’s remaining three contentions concerning the court’s refusal to definitively rule on the Bighum motion are equally without merit in light of Commonwealth v. Bryant, 247 Pa.Superior Ct. 386, 372 A.2d 880 (1977). In Bryant, after the Commonwealth had rested its case, the trial court stated that it intended to rule that evidence of the defendant’s prior convictions was permissible but indicated that if the defendant took the stand, prompting the Commonwealth to attempt to impeach his credibility, that it would reconsider the tentative ruling. The Superior Court rejected the defendant’s argument that a binding evidentiary ruling was required and stated:

to hold that the trial judge must make a binding ruling on the admissibility of the convictions before the defense has presented any evidence would serve to remove the most crucial factor by which the judge is to be guided in making his ruling that being whether or not appellant has any means of presenting a defense other than by taking the stand himself.

Id., 247 Pa.Superior Ct. at 392, 372 A.2d at 882. In the instant case, the court ruled tentatively on the evidence, reiterated its view after the Commonwealth rested, and left open the possibility of reconsideration after appellant took the stand. Accordingly, the lower court properly adhered to the procedure employed and upheld in Bryant.

Appellant also challenges the lower court’s final decision to permit the Commonwealth to impeach appellant with evidence of his prior criminal activity. The trial judge, acting in his discretion, may permit the Commonwealth to introduce evidence of prior convictions, if they reflect on the defendant’s veracity, after considering

... the age and nature of the prior crimes; the length of the criminal record; the age and circumstances of the defendant; the extent to which it is more important to search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction. This last factor is of critical importance. Where the defendant has no other means by which to defend himself, it would be particularly unjust to subject him to the introduction of prior convictions. Or where the prior conviction is not critically important to the Commonwealth’s case—e.g. where other adequate means of attacking defendant’s credibility are available—exclusion of prior convictions is strongly indicated.

Commonwealth v. Bighum, supra 452 Pa. at 567, 307 A.2d at 263. See Commonwealth v. Roots, 482 Pa. 33, 38, 393 A.2d 364, 366 (1978). Testimony at the pre-trial hearing on appellant’s Bighum motion indicates that appellant had been sentenced on June 25, 1980, in Delaware, for several other robberies taking place within a nine month period from 1977 through 1978, when appellant was 24-25 years old. The hearing also revealed that the robberies had a similar “modus operandi,” whereby “people of various business establishments were assaulted, money was relieved of them by force and through fear and intimidation. Several of the persons were locked in different places, rooms, trunks, et cetera.” (N.T. March 26, 1981 at 8). In addition, appellant’s counsel noted that there were two defenses; one, authorizing the chain of custody of Bonecutter’s alleged letter, requiring appellant’s taking the stand and the other, the alibi defense, not requiring appellant’s participation. Counsel explained that both defenses were of equal value to appellant. (N.T. March 26, 1981). The Commonwealth, on the other hand, needed to impeach appellant’s veracity as the only witnesses linking appellant to the crime were his alleged accomplices and the jury therefore had to make an important credibility determination. Based on these factors, the lower court could reasonably have concluded that the balance of the Commonwealth’s need for the evidence and its prejudice to appellant weighed more heavily in favor of the Commonwealth.

Appellant next alleges that the lower court placed the burden upon him to request that the court not permit evidence of prior convictions, rather than requiring the Commonwealth to explain its need for the evidence. We agree with appellant that at a Bighum hearing the burden of proof is on the prosecution to demonstrate that its need for evidence attacking the defendant’s credibility overcomes the evidence’s potential prejudice. Commonwealth v. Roots, supra. Here, however, the record supports the lower court’s assertion that the burden was placed on the Commonwealth. The lower court asked appellant’s counsel, “Now, what is the reason why this record should not be received in evidence on rebuttal if the defendant takes the witness stand and I assume that is what the Commonwealth’s application is?” (N.T. March 26, 1981 at 6). Rather than placing the burden on appellant, the lower court attempted to elicit the various factors required for a determination of the evidence’s admissibility that might possibly weigh in favor of barring the evidence. Accordingly, we find no merit in appellant’s contention.

C.

Appellant next alleges that the lower court erred in falsely characterizing Bonecutter’s and Davidson’s plea agreements. Specifically, he argues that by informing the jury that the agreements had not been accepted, rather than informing the jury they were conditional upon the co-conspirator’s testifying, the lower court so misled the jury as to the facts that prejudice resulted. We do not find that the lower court’s remark prejudiced the jury to the extent requiring a new trial. A remark to a jury is deemed prejudicial if “it is of such a nature of substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.” Commonwealth v. Rhodes, 272 Pa.Superior Ct. 546, 558, 416 A.2d 1031, 1037 (1979). Here, while Bonecutter was being questioned on direct examination about his agreement with the Commonwealth, the lower court interrupted the District Attorney and explained the plea agreement to the jury.

So that the jury has this whole picture in proper perspective, with respect to the concept of plea negotiations or as it is sometimes called plea bargains, the plea negotiations or the plea bargains is something in which the Court does not participate. It is a decision initiated solely by the District Attorney’s office.
The District Attorney and counsel for the defendant in this particular case, Mr. Bonecutter, arrived at an arrangement which to them is mutually satisfactory. That arrangement is then presented to the Court in open Court for approval or disapproval.
If the Court approves of the arrangement, the sentence is automatically imposed. The approval of the negotiated plea is not evidence [sic] by the Court unless and until the sentence is actually imposed. If the Court disapproves of the arrangement, the defendant is given the right if he chooses to do so, to withdraw the plea of guilty that he has tendered and then to stand trial.
As you heard Mr. Bonecutter state whatever arrangements, if any, he has with the Court were not made with this Judge, they were made with another Judge. Whether or not Judge Wright will ultimately approve of the negotiated plea will be determined at the time sentence is imposed.
As Mr. Bonecutter has stated, sentence has not yet been imposed. And I simply call this to your attention so that you might, if you have any preconceived ideas as to the negotiated plea in this case, have them possibly clarified in your mind.

(N.T. March 30, 1981 at 27-28). Far from prejudicing appellant, the lower court simply clarified the status of the agreement and thereby aided the jury’s credibility determination by informing the jury exactly what Bonecutter and Davidson had already received and would receive as a result of the plea agreement. We fail to see how this clarification misled or prejudiced the jury.

D.

Appellant next contends that the lower court erred in refusing to grant a mistrial after the Commonwealth asked Bonecutter who had participated in the robbery of which appellant had been acquitted in January, 1981. The granting of a mistrial is within the discretion of the lower court and will not be reversed absent an abuse of that discretion. Commonwealth v. Green, 287 Pa.Superior Ct. 220, 429 A.2d 1180 (1981). Here, the lower court correctly refused to grant a mistrial. On cross-examination appellant’s counsel questioned Bonecutter about his involvement in locking the victim of the earlier robbery in the car. On redirect, the District Attorney asked Bonecutter who had participated in the robbery. “If a defendant delves into what would be objectionable testimony on the part of the Commonwealth, the Commonwealth can probe further into the objectionable area.” Commonwealth v. McCloughan, 279 Pa.Superior Ct. 599, 604, 421 A.2d 361, 363 (1980). By raising on cross-examination the earlier robbery and the similar action of placing the victim in the vehicle’s trunk, the defense “opened the door” for the Commonwealth’s question on redirect. Moreover, defense counsel on re-cross established that appellant had been acquitted in the earlier robbery. Thus, finding that appellant was not prejudiced by Bonecutter’s testimony, we hold that the lower court properly denied the motion for mistrial.

E.

Appellant alleges finally the lower court’s error in refusing his motion for recusal. We find no merit in this contention. After appellant was acquitted by a jury on January 28, 1981, in a related robbery, the lower court allegedly informed the jury that it disagreed with the jury’s verdict. On January 29 appellant’s counsel motioned for the court to recuse itself in the instant case. Recusal may be appropriate where the trial judge feels unable to dispose of the case fairly and without prejudice. Commonwealth v. Conrad, 241 Pa.Superior Ct. 324, 361 A.2d 421 (1976). However, where appellant is “tried by a jury which exercised sole responsibility for evaluating the testimony and arriving at a verdict ... the integrity of the fact finding process [is] insulated from any predispositions held by the trial judge.” Commonwealth v. West, 270 Pa.Superior Ct. 301, 309, 411 A.2d 537, 541 (1979). In the instant case, the lower court refused appellant’s motion for recusal noting that its comments on the earlier trial “related solely and exclusively to [the prior] prosecution” and that “[t]he Court has no idea of [appellant’s] participation, if any, in any of the remaining charges.” (N.T. January 29, 1981 at 7). We find the court’s explanation of its reason for denying the motion to recuse, coupled with the fact that here, appellant was found guilty by a jury, sufficient to find no abuse of discretion in the lower court’s presiding over appellant’s trial.

Accordingly, having found no merit in appellant’s contentions, we affirm the judgment of sentence entered by the lower court.

Affirmed.

      . Because we find the verdict supported by the weight of the evidence, we need not address appellant’s related claim that the evidence was insufficient to find him guilty beyond a reasonable doubt. In reviewing the weight of the evidence we look to all of the evidence; however, in evaluating sufficiency we look only to the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Lewis, 276 Pa.Superior Ct. 451, 454, 419 A.2d 544, 546 (1980).

      . The appropriate vehicle for relief may be a civil lawsuit against Delaware prison officials. See Cuyler v. Adams, supra.

      . Appellant alleges also that pursuant to Commonwealth v. Young, 262 Pa.Superior Ct. 243, 396 A.2d 736 (1978), our Court should remand for a more complete record. We disagree, finding that appellant’s answer to the Commonwealth’s Petition to Extend is all that is needed to dispose of this issue.

      . Hence, the Art. IV and rule 1100 rundates were the same, February 21, 1981.

      . Appellant does not challenge any of the Commonwealth’s requests for continuances up to the point of his arrival in Pennsylvania.

      . Robbery is a crime reflecting appellant’s veracity, Commonwealth v. Campbell, 244 Pa.Superior Ct. 505, 368 A.2d 1299 (1966) (aggravated robbery a crime involving serious moral turpitude).


author: CAVANAUGH, Judge: BROSKY, Judge

text:
    466 A.2d 1049
    Mary A. GULENTZ, Administratrix of the Estate of James P. Gulentz, Deceased, Appellant, v. Wayne A. FOSDICK, B & C Trucking, Inc., Schanno Transportation, Inc., and Todd A. Trice.
    Superior Court of Pennsylvania.
    Argued March 29, 1983.
    Filed Oct. 7, 1983.
    Petition for Allowance of Appeal Denied Jan. 31, 1984.

      Cyril T. Garvey, Sharon, for appellant.
    P. Christian Hague, Pittsburgh, for appellees.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

On June 5, 1980, James Gulentz was a passenger in a car which was proceeding on the Ohio Turnpike in Portage County, Ohio, near the Pennsylvania border. The vehicle in which Gulentz was a passenger was operated by Todd A. Trice and allegedly collided with a tractor-trailer being operated by Wayne A. Fosdick. The tractor-trailer, immediately prior to the accident, had traversed Pennsylvania from Port Jervis, New York on Route 80 and had entered Ohio shortly before the accident. The tractor was owned by B & C Trucking, Inc. and the trailer by Schanno Transportation, Inc. Mr. Gulentz died as a result of the accident and the administratrix of his estate commenced wrongful death and survival actions in Mercer County, Pennsylvania, against Wayne A. Fosdick, B & C Trucking, Inc., Schanno Transportation, Inc. and Todd A. Trice. Schanno Transportation, Inc. maintains its principal office in Saint Paul, Minnesota. The defendants filed preliminary objections raising the question of jurisdiction which were sustained by the court below by order of Acker, J. The plaintiff below, the admin-istratrix of the Estate of James P. Gulentz, deceased, appealed to this court.

At the outset, we note that the preliminary objections of all defendants were sustained by the court below but the appeal is only from that part of the order sustaining the preliminary objections of Schanno Transportation, Inc. Since the accident occurred outside of Pennsylvania, the basis of in personam jurisdiction is Pennsylvania’s Long Arm Statute, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. § 5301 which provides in pertinent part:

§ 5301. Persons
(a) General rule.—The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:
(2) Corporations.—
(iii) The carrying on of a continuous and systematic part of its general business within this Commonwealth.

The appellant, in an effort to establish that Schanno Transportation was “carrying on a continuous and systematic part of its general business within this Commonwealth” filed several interrogatories to be answered by Schanno Transportation, Inc. In Interrogatory 11 appellant asked Schanno to list the names and addresses “of every place of business in Pennsylvania where Schanno picked up or delivered merchandise, commodities or freight in 1980...” Schanno objected on the grounds that to answer this would be burdensome and require the company to go through thousands of invoices for the year 1980. The court below directed Schanno to answer the following interrogatory:

List the name and address of five places of business in Pennsylvania where Schanno picked up and delivered merchandise, commodities, or freight in 1980 indicating in each instance whether it is the place of pickup or place of delivery.

Schanno answered that it had pick ups in Harrisburg and Carlisle and deliveries in Norristown, Altoona and Monaca. In addition, Schanno’s answer to interrogatories indicated that in 1980, $735,000 of its gross receipts were attributable to its trucking activities in Pennsylvania and that this represented 3.7% of its gross receipts. This indicates that Schanno’s gross receipts for 1980 were approximately twenty million dollars on a nationwide basis. On the date of the accident Schanno was transporting shoe and boot factory supplies from Brockton, Maine to Chippawa Falls, Wisconsin. In 1980 the trucking company leased or owned one hundred and seventy-four tractors and leased or owned three hundred trailers. Further, in 1980 Schanno’s tractors and trailers travelled about 2.6 million miles on Pennsylvania highways and Schanno purchased five hundred and fifty-six thousand gallons of fuel in Pennsylvania, on which it paid $63,238.00 in fuel taxes. The issue to be decided on this appeal is whether the activities of Schanno in Pennsylvania were sufficient to give our courts in personam jurisdiction over Schanno Transportation, Inc.

Pennsylvania has long evidenced an interest in extending in personam jurisdiction over foreign corporations doing business within its boundaries, for acts occurring outside the state. This interest must be balanced against a foreign corporation’s constitutional right to due process. However, as noted in the landmark case of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945):

due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’.

Pennsylvania’s long arm statutes go back to the Act of June 13, 1896, P.L. 568 but “[successive restrictive judicial construction of the long-arm statute by Pennsylvania courts led to legislative amendments broadening the scope of jurisdiction over foreign corporations.” Garfield v. Homowack Lodge, Inc., 249 Pa.Super. 392, 396, 378 A.2d 351, 354 (1977). Today under the Pennsylvania Long Arm Statute in personam jurisdiction over a foreign corporation is co-extensive with the permissible limits of jurisdiction under the due process clause of the federal constitution. Crompton v. Park Ward Motors, Inc., 299 Pa.Super. 40, 445 A.2d 137 (1982).

The leading case of Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974) dealt with the 1972 amendment to the long arm statute and provided that in order for the minimum contacts to be present; (1) the defendant must have purposely availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws, (2) the cause of action must arise from defendant’s activities within the forum state and (3) the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable.

It was held that the 1972 amendment required that a foreign corporation be “doing business” within Pennsylvania to be subject to in personam jurisdiction and the court stated at 228 Pa.Super. 16, 323 A.2d 13:

Pennsylvania’s recently enacted “long-arm” statute is expressly intended to extend the jurisdiction of the courts of this Commonwealth to the fullest extent permitted by the Fourteenth Amendment. The pertinent section is § 8309(b) which reads as follows:
“(b) Exercise of full constitutional power over foreign corporations:—In addition to the provisions of subsection (a) of this section the jurisdiction and venue of courts of the Commonwealth shall extend to all foreign corporations and the powers exercised by them to the fullest extent allowed under the Constitution of the United States.”

The court further stated at 228 Pa.Super. 17, 18, 323 A.2d 14:

Although the statute retains the requirement of “doing business” as a jurisdictional trigger, the addition of the new section 8309(b), quoted supra, is clearly intended to liberalize Pennsylvania’s position. Under this section those contacts sufficient to satisfy the constitutional requirements of due process are also sufficient to satisfy the “doing business” requirement of Pennsylvania law. Thus, for purposes of in personam jurisdiction over unregistered foreign corporations the evolution of the Pennsylvania “long-arm” statute has now become coexistent with the evolution of substantive jurisdictional due process as expressed by the United States Supreme Court.

The present Long Arm Statute, 42 Pa.C.S.A. § 5308, which is applicable to this case provides that: “The tribunals of this Commonwealth may exercise jurisdiction under this subchapter only where the contact with this Commonwealth is sufficient under the Constitution of the United States.” While it is clear that a foreign corporation must have minimum contacts with Pennsylvania to establish due process, “[t]he ‘minimum contact’ test of International Shoe is not susceptible of mechanical application; rather the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.” Kulko v. Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132, 141 (1978). In addition, it is essential that in each case the foreign corporation purposely avail itself of the privilege of conducting activities within the forum state. Kenny v. Alexson Equipment Co., 495 Pa. 107, 432 A.2d 974 (1981).

In the instant case the second requirement of the three part test of Proctor & Schwartz, Inc., supra, has not been met. The second requirement is that “the cause of action must arise from defendant’s activities within the forum state.” Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 19, 323 A.2d 11, 15. The accident in this case occurred in Ohio and it is immaterial that the tractor-trailer in question had traversed the breadth of Pennsylvania and had just entered Ohio when the accident occurred. The result would have been the same if the truck had been driven east across Ohio and had not yet entered Pennsylvania. The accident had nothing to do with Schan-no’s activities in Pennsylvania. We are satisfied, therefore, that the Proctor & Schwartz test was not met, but this does not necessarily deprive our courts of jurisdiction.

In Bork v. Mills, 458 Pa. 228, 329 A.2d 247 (1974) the plaintiff was injured in Virginia in an accident involving a truck allegedly hauling freight for hire to points in Pennsylvania. The Supreme Court stated at 458 Pa. 231, 329 A.2d 249:

since their complaint makes clear that their cause of action occurred in Virginia and did not arise out of any business which Mills does within the Commonwealth, appellants must also allege that Mills’ freight hauling activities are continuous and substantial enough to permit the courts of Pennsylvania to exercise jurisdiction over him with respect to an unrelated cause of action.

The case of Garfield v. Homowack Lodge, Inc., supra, involved a plaintiff who was injured while ice skating in Spring Glen, New York, at a resort owned by the defendant. It was agreed that the defendant advertised in a newspaper with circulation in the Philadelphia area, maintained a toll free telephone number for Philadelphia area residents to make reservations at the lodge, and paid Philadelphia travel agents a ten percent referral fee. This court considered the three-pronged test of Proctor & Schwartz to determine if the requisite contacts with Pennsylvania were present and noted at 249 Pa.Super. 397, 378 A.2d 354: “Secondly the cause of action must arise from defendant’s activities within the forum state. ” (Emphasis added). However, the court reached the conclusion that even in the absence of a relationship between the cause of action and the defendant’s activities in Pennsylvania in personam jurisdiction would lie if the defendant engaged in substantial and continuous activities in this Commonwealth. The court stated at 249 Pa.Super. 397, 398, 378 A.2d 354:

The dissent would not resolve these issues, however, reasoning that there is no evidence on record that the cause of action arose from appellant’s activities in Pennsylvania. Nonetheless, our inquiry is not concluded for this reason, in light of the United States Supreme Court’s statement in International Shoe Co. v. Washington, supra, that:
“There have been instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” 326 U.S. at 318-19, 66 S.Ct. at 159.
We hold here that the defendant’s method of soliciting business in Pennsylvania consisted of such substantial and continuous activities in this Commonwealth as to render it amendable to in personam jurisdiction. The stipulated facts of the case dictate this result. (Emphasis added).

In Whalen v. Walt Disney World Co., 274 Pa.Super. 246, 418 A.2d 389 (1980) the plaintiff was injured in Florida at a hotel owned by Walt Disney World Company. Suit was brought in Pennsylvania and the court below dismissed Walt Disney World Company’s preliminary objections based on lack of in personam jurisdiction. On appeal, we reversed on the ground that the defendant’s activities in Pennsylvania were not substantial and continuous. The only contacts that Walt Disney World Company had with Pennsylvania were the purchase of one and one-half million dollars worth of merchandise from a Pennsylvania company and the purchase of liability insurance from a company incorporated in Pennsylvania.

The tri-partite test of Proctor & Schwartz has been modified so that sufficient minimum contacts may be present even if the cause of action does not arise from the defendant’s activities within the forum state. In Koenig v. International Brotherhood of Boilermakers, 284 Pa.Super. 558, 567-8, 426 A.2d 635, 640 (1980), Cavanaugh, J., dissenting, this court stated:

In Kingsley and Keith (Canada) Limited, et al. v. Mercer International Corp., et al. [284] Pa.Super. [524] 426 A.2d 618 (1980) (J. 1608/79), The Union National Bank of Pittsburgh, Exec’r. v. L.D. Pankey Institute et al. [284] Pa.Super. [537] 426 A.2d 624 (1980) (J. 1740/79), and Goff v. Ambrecht Motor Truck Sales, Inc., et al., [284] Pa.Super. [544] 426 A.2d 628 (1980) (J. 1620/79), three cases recently filed together, we evolved a two-step test for determining whether the exercise of this state’s jurisdiction over a particular nonresident was constitutional. The first step is to apply the test formulated in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 19-20, 323 A.2d 11, 15 (1974).
$ # # sfe * *
If it appears that this test is not satisfied, the second step is to decide whether the non-resident defendant’s activities in Pennsylvania unrelated to the cause of action were “continuous and substantial." Bork v. Mills, 458 Pa. 228, 329 A.2d 247 (1974). (Emphasis added).

The language of the applicable long arm statute in this case refers not to Pennsylvania activities which are “continuous áhd substantial” but to the “carrying on of a continuous and systematic part of its general business within this Commonwealth.” The statute is not in conflict with Bork v. Mills, supra, and the subsequent cases relying on Bork but expresses the same concept in slightly different language.

The court below determined that Schanno’s activities were not a systematic part of its general business. We must disagree with this conclusion. To begin with, the court below only required Schanno Transportation to list five places of business in Pennsylvania where it picked up or delivered goods in 1980. The appellant wanted to know all of such places of business and requested this information in its interrogatories. The fact that the court below limited the answer to the interrogatory to five such locations does not in any way indicate that Schanno’s business activities were limited to pick up and delivery at five locations. In addition, we note that the five locations were in widely divergent parts of the Commonwealth. Of even greater importance, is the fact that Schanno’s trucks drove over two and one-half million miles in Pennsylvania in 1980 and purchased over a half million gallons of fuel in Pennsylvania on which substantial taxes were paid. It is unrealistic to conclude that the appellee did not have a continuous and systematic business presence in Pennsylvania in 1980 or that its activities were not substantial. The company availed itself of the privilege of conducting business within the state and used its highways in a very extensive manner as a way of furthering its business interests. Schanno had gross receipts of almost three quarters of a million dollars from its trucking business conducted in Pennsylvania. Its contention that the gross receipts from Pennsylvania activities amounted to only 3.7% of its total gross receipts does not deprive our courts of jurisdiction. The appellee operated in the forty-eight continental states and its activities here were systematic and continuous notwithstanding that they represented only a small fraction of its total business. Finally, we must recognize that appellee’s business is transportation and that its contacts within the Commonwealth are expectedly transient but, nevertheless, substantial.

The court below in determining that Pennsylvania lacked in personam jurisdiction over Schanno under 42 Pa.C.S.A. § 5301(b)(iii) cited Mobay Chemical Corp. v. Air Products & Chemicals, Inc., 290 Pa.Super. 489, 434 A.2d 1250 (1981). In that case an explosion occurred in West Virginia resulting in property damage in 1978. Since 1977 the defendant was engaged solely in the business of performing high pressure water cleaning operations at various plants, but never conducted this business in Pennsylvania. The defendant never offered its services in Pennsylvania. Its only contact with Pennsylvania was that between 1973 and 1976 the defendant’s predecessor corporation shipped twenty-seven valves which it repaired in West Virginia to customers in Pennsylvania. From 1972 until 1976 the defendant engaged exclusively in repairing valves in West Virginia. This court held that the defendant’s contacts in Pennsylvania from 1973 to 1976 did not constitute a continuous and systematic part of its business and that the defendant foreign corporation did not have sufficient minimum contacts with Pennsylvania to form a basis of in personam jurisdiction. The facts in Mobay Chemical are readily distinguishable from those in the instant case.

In order to extend in personam jurisdiction over Schanno it must appear that its conduct was within the long arm statute and that application of the statute does not violate the Fourteenth Amendment of the United States Constitution. Kingsley & Keith (Canada) Limited v. Mercer International Corporation, 291 Pa.Super. 96, 435 A.2d 585 (1981). While the tri-partite test of Schwartz & Proctor, supra, is often referred to, the secbnd requirement is in effect disregarded if the corporation engages in substantial and continuous activities in this state and the other requirements are met. Further, it has been stated that: “the third part of the [Proctor & Schwartz] test is the most significant.” Kingsley & Keith (Canada) Limited v. Mercer International Corporation, supra, 291 Pa.Super. at 108, 435 A.2d at 591. This case was affirmed by an equally divided Supreme Court, 500 Pa. 371, 373, 456 A.2d 1333, 1335 (1983). The case involved a breach of contract rather than a wrongful death and survival action. The appellant was a Canadian firm which entered into a contract to transport goods manufactured in Pennsylvania from Pennsylvania to Canada. A claim was brought for improper carriage of goods and it was held that the Canadian firm was subject to the jurisdiction of Pennsylvania courts, notwithstanding lack of proof that the alleged breach of contract occurred in Pennsylvania. The Supreme Court stated at 500 Pa. 371, 373, 456 A.2d 1333, 1334, 1335:

The state’s interest in assuring that a contract for the safe transportation of Pennsylvania goods is properly performed must be evident. Not only does Pennsylvania have an interest in highway safety; it also has an interest in assuring that Pennsylvania manufacturers do not bear unwarranted liability for goods proper when made and delivered to the buyer’s carrier.
The test can be illustrated by the facts of Peters v. Robin Airlines, 281 A.D. 903 [120 N.Y.S.2d 1] (2d Dept. 1953). A New York statute purported to grant jurisdiction over operators of aircraft in collision litigation if the craft had landed at or departed from a New York airfield. In a brief opinion, the Peters court refused to apply the statute because the New York stopover did not contribute to the crash. The stopover was of no substantive relevance to the dispute, since the complaint did not allege that the collision was due to negligent operation or maintenance there. For this reason, it should be categorized as an unrelated contact. [Footnotes omitted.]
Id. at 84.
The purpose of the second prong, as it relates to substantive relevance, is to insure that the acts of the nonresident defendant within the forum state represent the factual predicates upon which a cause of action are to be based. Without this requirement the nexus between the defendant’s activities, the cause of action and the forum state have not been established. Such a causal connection is critical to the assertion of long-arm jurisdiction. (Emphasis added).

We recognize that under our application of Pennsylvania’s long arm statute to the facts in this case that the appellant could possibly select any state of the forty-eight continental United States as the forum state, assuming the selected state had a similar long arm statute and that Schanno had the same or similar contacts with the forum state as it has with Pennsylvania. Nevertheless, we believe that Schanno had sufficient minimum contacts with Pennsylvania to render in personam jurisdiction over it reasonable and proper under the law.

Order reversed and case remanded for further proceedings consistent with this opinion.

BROSKY, J., filed a dissenting opinion.

BROSKY, Judge

dissenting:

I respectfully dissent. I do not believe that the acts of Schanno have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable in this case.

Initially, I note that I fully agree with the majority that the requirement of Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974), that the cause of action must arise from a corporation’s activities within the forum state is disregarded if the corporation engages in substantial and continuous activities in this state.

I also agree with the majority that the other requirements of Proctor & Schwartz must still be met and that in this case the first requirement that a defendant must have purposefully availed itself of the privilege of acting within the forum state has been met. Finally, I agree with the majority’s statement that the third requirement of Proctor & Schwartz is the most significant, but I believe that it is here where the majority’s analysis falls short.

The focus of the third part of the Proctor & Schwartz test is on whether “the exercise of jurisdiction in this particular case [would] be fair and reasonable under the circumstances.” Id., 228 Pa.Superior Ct. 20, 323 A.2d at 16. As previously noted, the determination of whether an exercise of jurisdiction is reasonable depends on the burden that would be imposed on the defendant, in light of several factors, including the forum state’s interest in resolving the dispute; the plaintiff’s interest in obtaining convenient and effective relief; the interstate judicial system’s interest in the most efficient resolution of the controversy; and the interest of the several states in furthering substantive social policies.

Kingsley & Keith (Canada) Limited v. Mercer International Corporation, 291 Pa.Super. 96, 108-109, 435 A.2d 585, 591 (1981), citing World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

The only treatment by the majority of the requirement appears to be its discussion of the Supreme Court case of Kingsley & Keith, supra. The only relevance the quoted portion of that case would seem to have is in the statement that Pennsylvania has an interest in highway safety. As noted above, there are, however, several other factors to be considered in determining whether an exercise of jurisdiction is reasonable.

Certainly, Pennsylvania has some interest in adjudicating this dispute, since appellant and Todd Trice are residents of Pennsylvania, as was James Gulentz. However, this interest is not as strong as it would be had the accident taken place in Pennsylvania.

Also, I believe that exercise of jurisdiction by a Pennsylvania court would not advance appellant’s interest in obtaining convenient and effective and definitely would not further the interstate judicial system’s interest in obtaining the most efficient resolution of controversies.

Appellant has already filed a protective action in Ohio, where all parties involved are amenable to suit, in case of an adverse decision on the jurisdictional question in Pennsylvania. Since this appeal is only from that part of the order sustaining Schanno’s preliminary objections will have to pursue her action in Ohio against Wayne Fosdick and B & C Trucking regardless of the outcome of this appeal.

In addition, defendant Todd Trice filed cross-claims in the court below against Fosdick, B & C Trucking, and Schanno. These claims were dismissed on preliminary objections raising the question of jurisdiction. Thus, Schanno would almost certainly be subjected to suit in Ohio by Trice in addition to having to defend appellant’s suit in Pennsylvania under the result reached by the majority. Furthermore, two other lawsuits involving all the defendants in this case have also been filed in Ohio. Lastly, I note that appellant was not precluded from entering, and did, in fact, enter a forum where she could have obtained a resolution of her claims against all the defendants in this case.

I “believe that in these circumstances the exercise in Pennsylvania of jurisdiction over [Schanno] would be unreasonable within the meaning of the third part of the Proctor & Schwartz test. Crompton v. Park Ward Motors, Inc., 299 Pa.Super. 40, 47, 445 A.2d 137, 140 (1982); cf. Kingsley & Keith v. Mercer International Corp., 291 Pa.Super. 96, 435 A.2d 585 (1981) (exercise of jurisdiction reasonable when breach of contract affected Pennsylvania domiciliary and all other parties to the transaction were in Pennsylvania.)

Therefore, I would affirm the order of the court below.

      . It was not the appellant but rather Schanno Transportation, as the moving party, which had the burden of supporting its objections to the court’s jurisdiction. Holt Hauling and Warehousing Systems, Inc. v. Aronow Roofing Company, 309 Pa.Super. 158, 454 A.2d 1131 (1983) and cases cited therein.

      . In the instant case the appellant’s complaint alleged:
      15. Plaintiff is unaware of the exact number of tractor-trailers owned or operated by defendant Schanno Transportation, Inc. which daily travel over Pennsylvania highways or of the names and addresses of the points of call, origin, destination, terminal, warehouse or office to or from which defendant Schanno Transportation, Inc. hauls freight, but plaintiff believes that Schanno’s corporate activities are of such a continuous and substantial nature within the State of Pennsylvania that they justify an exercise of jurisdiction against it in this cause of action.

      . The case of Kingsley and Keith (Canada) Limited, et al. v. Mercer International Corp., 284 Pa.Super. 524, 426 A.2d 618 (1980) has been withdrawn from publication.

      . Although in Koenig v. International Brotherhood of Bookbinders, supra, the court dealt with the same act as involved in the instant case, Act of July 9, 1976, P.L. 586, No. 142, different sections of the act were under consideration. Koenig dealt with the section found in 42 Pa.C.S.A. § 5322(a) and (b) and our case deals with the provisions in 42 Pa.C.S.A. § 5301. The provision of 42 Pa.C.S.A. § 5322(a) is not applicable as this pertains to a cause of action arising from the transaction of business in Pennsylvania.

      . The instant case involves an action based on negligence rather than on contract, and with respect to trespass, this court stated in Kingsley & Keith (Canada) Limited v. Mercer International Corporation, supra, 291 Pa.Super. at 106, 107, 435 A.2d 590:
      In contrast, in actions in trespass the courts have focused on where the injury took place. Thus in the leading Pennsylvania case of Bork v. Mills, 458 Pa. 228, 329 A.2d 247 (1974), our Supreme Court held that although a Maryland defendant had done business in Pennsylvania, the business was not so continuous or substantial as to make him subject to suit in Pennsylvania in connection with an automobile accident that had occurred in Virginia. There was no claim in Bork that the plaintiff or the accident had any connection with the defendant’s business activities in Pennsylvania. See

        also, Whalen v. Walt Disney World Co., 274 Pa.Super. 246, 418 A.2d 389 (1980); Lebkuecher v. Loquasto, 255 Pa.Super. 608, 389 A.2d 143 (1978); Garfield v. Homowack Lodge, Inc., 249 Pa.Super. 392, 378 A.2d 351 (1977).

      . The opinion in support of reversal deals with the troublesome second prong of the Proctor & Schwartz test and states at 500 Pa. 371, 456 A.2d 1338:
      One commentator has suggested that the activities of the non-resident defendant are related to the cause of action when there exists “substantive relevance” between the facts constituting the forum contact and the facts required to prove the substantive cause of action. 1980 Supreme Court Review at 82.

      . Although the majority states in footnote 1 of its opinion that Schan-no had, as the moving party, the burden of proof on the issue of jurisdiction, this question does not appear to have been settled under Pennsylvania case law. See and compare, Crompton v. Park, Ward Motors, Inc., 299 Pa.Super. 40, 445 A.2d 137 (1982) and cases cited therein with Holt Hauling and Warehousing Systems, Inc. v. Aronow Roofing Co., 309 Pa.Super. 158, 454 A.2d 1131 (1983) and cases cited therein.

      . Subsection (b) of 42 Pa.C.S.A. § 5301 states the following:
      (b) Scope of jurisdiction.—When jurisdiction over a person is based upon this section any cause of action may be asserted against him, whether or not arising from acts enumerated in this section. Discontinuance of the acts enumerated in subsection (a)(2)(i) and (iii) and (3)(i) and (iii) shall not affect jurisdiction with respect to any act, transaction or omission occurring during the period such status existed. 1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978; as amended 1978, April 28, P.L. 202, No. 53, § 10(60), effective June 27, 1978. As amended 1981, July 10, P.L. 237, No. 77, § 3, effective in 60 days.
      Thus, once the conclusion is reached that Pennsylvania activities that are continuous and substantial are encompassed by § 5301(2)(iii) (carrying on of a continuous and systematic portion of general business), subsection (b) clearly provides that the cause of action need not arise from those activities. Cf. 42 Pa.C.S.A. § 5322(c) (scope of jurisdiction limited to causes of action arising from acts enumerated in the section).

      . Prior cases have not been entirely clear as to whether satisfaction of the “continuous and substantial activities" test enunciated in Bork v. Mills, 458 Pa. 228, 229, 329 A.2d 247, 249 (1974), is alone sufficient for the exercise of jurisdiction or whether the test is only meant to be an alternative to the second requirement of Proctor & Schwartz. The case cited by the majority in regard to this issue, Koenig v. International Brotherhood of Boilermakers, 284 Pa.Super. 558, 426 A.2d 635 (1980), appears to treat the Mills test as one that is independent of the Proctor & Schwartz requirements, but that should only be applied if the Proctor & Schwartz test is not satisfied.
      However, in practical effect, I believe it would make very little difference which way the Mills test is applied. The test stated in Mills was that “jurisdiction ... may be found where the nonresident’s activities in the forum state are ‘so continuous and substantial as to make it reasonable’ to require the nonresident defendant to submit to the jurisdiction of the Pennsylvania courts. Bork v. Mills, 458 Pa. 228, 232, 329 A.2d 247, 249 (1974).” Kingsley & Keith (Canada) Limited v. Mercer International Corp., 500 Pa. 371, 382, 456 A.2d 1333, 1339 (1983) (Opinion in Support of Reversal). Thus, it can be seen that this test actually incorporates the third requirement of Proctor & Schwartz of reasonability. Furthermore, it is difficult to conceive of a case in which a defendant’s activities are so continuous and substantial as to make the exercise of jurisdiction reasonable, but in which it has not purposefully availed itself of the privilege of acting within the forum state. Therefore, it appears that if the Mills test is satisfied, so also will be the first and third requirement of Proctor & Schwartz.


author: ROWLEY, Judge:

text:
    466 A.2d 1058
    COMMONWEALTH of Pennsylvania v. William SUFRICH, Appellant. COMMONWEALTH of Pennsylvania v. Mahala SUFRICH, Appellant.
    Superior Court of Pennsylvania.
    Argued June 2, 1983.
    Filed Oct. 7, 1983.

      Richard J. Orloski, Allentown, for appellants.
    Frank J. Danyi, Jr., City Solicitor, Bethlehem, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   ROWLEY, Judge:

These are consolidated appeals from orders “changing venue” of summary criminal proceedings from one district justice to another.

Appellants were charged with two counts of driving during suspension and one count each of abandonment of a vehicle and allowing a dog to remain at large. The charges were filed with District Justice Dennis Monaghan. Appellants pled not guilty and requested a hearing. On September 25, 1981, the Court of Common Pleas, at the request of the Commonwealth, entered an ex parte order transferring the cases to another district justice. The transfer was granted on the ground that the original district justice had a predisposition about the case which was prejudicial to the Commonwealth. No written motion requesting the transfer was ever filed by the Commonwealth. Appellants were given no notice that the Commonwealth intended to make such a request and no opportunity to respond.

We must first determine whether the order transferring the cases is appealable. The Commonwealth Court has ruled on this question in a case involving the same appellants, but different charges. Sufrich v. Commonwealth, 68 Pa.Cmwlth. 42, 447 A.2d 1124 (1982). That court decided that such an order is appealable under Pa.R.A.P. 311(a)(3) which provides that an appeal may be taken as of right from an order changing venue in a criminal proceeding. According to Schedule Article V, Section 14 of the Pennsylvania Constitution, the civil and criminal procedural rules relating to venue shall apply to magisterial districts. Therefore, we agree that the order transferring these cases, which in effect was a “change of venue” in a criminal proceeding, is appealable.

Appellants argue that the court erred in ordering a change of venue without first giving them notice and an opportunity to be heard.

In Sufrich v. Commonwealth, supra, the Commonwealth Court agreed with that argument. The court reasoned that under Pa.R.Crim.P. 1, the Rules of Criminal Procedure govern criminal proceedings in all courts, including summary criminal proceedings before district justices. According to Rule 306, an application for a change of venue is a pretrial motion and must comply with the formalities prescribed by the rule. Rule 307 requires that such a motion be served on the opposing party. Rule 308 gives an opposing party the right to file an answer. The court concluded that the change of venue was ordered without complying with the procedural requirements of Rules 306, 307 and 308. It therefore reversed and remanded the case so that those procedures could be followed.

The reasoning of the Commonwealth Court has been criticized by the Criminal Procedural Rules Committee of the Pennsylvania Supreme Court. See Vol. 13, Pennsylvania Bulletin, page 1766. According to the Committee, Rules 306, 307 and 308 were never intended to apply to summary cases. Id., at 1767. The Committee also questioned the use of the term “change of venue” in this situation, and considered this case to actually involve the temporary assignment of a district justice under Pa.R.Crim.P. 23. However, the Committee agreed that when a party requests temporary assignment to insure fair and impartial proceedings, the only means of making such a request should be by motion, with notice and an opportunity to respond. Id., at 1768. As a result of Sufrich v. Commonwealth, the Committee has proposed that Rule 23(b) be amended to specifically permit temporary assignment of a district justice in order to insure fair and impartial proceedings. The Committee also proposed that a subsection (d) be added to Rule 23, which would read as follows:

(d) A motion may be filed requesting a temporary assignment under paragraph (b) on the ground that the assignment is needed to insure fair and impartial proceedings. Reasonable notice and opportunity to respond shall be provided to the parties.

We believe that whether the court order in question is considered to be a change of venue under Rule 306 or a temporary assignment under Rule 23, fairness requires that appellants be given notice of the Commonwealth’s request for a transfer, which should be in the form of a written motion. Appellants must also be given an opportunity to respond to such a request. Therefore, we will reverse the order of the trial court and remand this case so that the proper procedure may be followed.

Order reversed. Case remanded for further proceedings.

Jurisdiction relinquished.