author: CAVANAUGH, Judge. DEL SOLE, Judge,

text:
    621 A.2d 654
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee, v. Timothy BROUGHTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1992.
    Filed March 2, 1993.

      Mati Jarve, Cherry Hill, NJ, for appellant.
    Sean M. Corr, Warminster, for appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, CIRILLO, OLSZEWSKI, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge.

Appellant Timothy Broughton appeals from an order granting summary judgment to the appellee State Farm Mutual Automobile Insurance Company. The ultimate issue in this appeal is as follows:

Whether it is against the public policy of this Commonwealth for an insurer to reduce, dollar for dollar, the uninsured motorist coverage payments made to a guest passenger with liability coverage payments made under same policy to the same guest passenger if both the host driver and another uninsured driver are jointly liable for the injuries suffered by the passenger.

Resolution of this issue requires us to revisit the typically troublesome area of the interrelated requirements of the Uninsured Motorists Coverage Act, 40 Pa.C.S.A. § 2000 et seq. (UMCA) and the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A § 1701 et seq. (MVFRL) Our review of this area indicates that summary judgment was appropriately granted. We affirm.

This issue arose in the context of a declaratory judgment action instituted by appellee State Farm against appellant Broughton. The parties stipulated to the following facts. On May 28, 1988, Broughton was injured in a two vehicle accident while riding as a passenger in a vehicle owned by State Farm’s named insured, Nellie Rawlings, and operated by Theodore Rawlings. The other vehicle involved in the accident was uninsured and there is no other insurance available to Broughton. It is claimed that both Theodore Rawlings and the uninsured motorist were negligent and caused the accident.

Broughton sued Theodore Rawlings for negligence and settled the action for a payment of $50,000, which represented the limits of liability coverage under the State Farm policy. However, since Broughton’s damages exceed this amount, Broughton then sought to recover under the uninsured motorist coverage of the State Farm policy. State Farm refused the claim, relying on the following policy provision:

If the bodily injury arises out of the ownership, maintenance or use of:
a. an uninsured motor vehicle, any amount payable under this coverage [uninsured motorist coverage] shall be reduced by any amount paid or payable to or for the insured:
(1) by or for any person or organization who is or may be held legally liable for the bodily injury to insured;

State Farm argued that this provision clearly provides for an offset of all amounts paid to the injured person under the liability coverage against any amount to be paid to him under the uninsured motorist coverage. Since the uninsured motorist coverage limit was $25,000 and Broughton had already received $50,000 in liability coverage, State Farm argued that the effect of the offset provision would be to eliminate any recovery under the uninsured motorist provision.

Broughton countered by arguing that the set-off provision should not be enforced to deny him uninsured motorist benefits. He argued that as an occupant of the insured vehicle at the time of the accident, he falls within the policy identification of an “insured” in the uninsured motorist provision of the policy and is, therefore, due the benefits provided for in that coverage. He asserted that to enforce the set-off and deny him these benefits would contravene the policy underlying mandatory uninsurance coverage.

The trial court entered summary judgment for State Farm, finding the policy provision to be both clear and enforceable. The court summarily dismissed appellant’s contention that the set-off provision should not be enforced, citing to the recent decision of a panel of this court in Kovaleski v. Erie Insurance Group, 398 Pa.Super. 519, 581 A.2d 585 (1990), in which the court allowed a set-off of liability payments against underinsurance payments.

Since the parties in the instant case have stipulated to all the material facts, our review of the trial court’s entry of summary judgment in this case is limited to a determination of whether the trial court erred as a matter of law in deciding that the set-off provision in State Farm’s policy is enforceable and, therefore, that judgment for State Farm should be entered.

The appellant argues that the set-off provision sub judice violates public policy. Although tacitly admitting that several recent cases seem to militate against this position, the force of appellant’s argument is that prior case law is distinguishable because this case involves a two vehicle accident, and the benefits sought are uninsured benefits as opposed to underinsurance benefits. The appellant also argues that as the insurance policy sub judice defines an insured as “any person while occupying your car ...,” his right to collect both liability and uninsured coverage benefits is predicated on his position as an insured individual.

We have thoroughly addressed the thrust of appellant’s argument in a companion case, Jeffrey v. Erie Insurance Company, 423 Pa.Super. 483, -, 621 A.2d 635 (1993), and we rely on the reasoning therein presently.

We also find unpersuasive appellant’s argument that his alleged status as an “insured” militates in favor of his position. The appellant’s claim that he is an insured under the policy derives from the policy’s terminology, which treats as an insured any occupant of the vehicle during an accident. However, notwithstanding the policy’s treatment of an occupant as “insured” under the policy, the tenor of our law does not treat someone in the appellant’s situation as a “class one” insured.

In Selected Risks Ins. v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989), the Supreme Court rejected an analogous argument. In Thompson, a volunteer fireman with the New Galilee Volunteer Fire Department, while responding to an alarm, was involved in a collision with an uninsured motorist. He suffered severe injuries as a result. The Fire Department was covered by an insurance policy that covered six vehicles. The policy was issued in the name of the department and no individuals were specified as named insureds. The fireman claimed that since the department was the “designated insured” under the policy, and because he was a member of that department, he was a “class one” insured and pursuant to Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), thus entitled to stack the uninsurance coverage on each of the six vehicles.

On appeal, the Supreme Court rejected that argument, and held that the fireman was a “class two” insured. Thompson, supra, 520 Pa. at 141, 552 A.2d at 1387. The Court first found that a volunteer fire department is a quasi-governmental unit, and accordingly, the insurance policy covering the six vehicles was essentially a fleet policy issued to a governmental unit. Id. The Court pertinently then declared as follows:

Consequently, because the policy under which the appellee sought coverage was a fleet policy with no explicit designation of insureds, appellee’s entitlement to coverage was predicated on his occupation of a vehicle: a “class two” status. Thus, appellee did not enjoy a recognizable contractual relation with S.R.I., and there was no basis upon which to allow him to stack the coverages applicable to the other vehicles. Therefore, his recovery under the S.R.I. policy is limited to the $30,000 coverage applicable to the vehicle he was occupying at the time of the accident.... Id.

While it is true that this case was decided in the context of a fleet policy, we believe the court’s pronouncements apply also to the case sub judice. The appellant is not specifically designated as an insured in the policy. Rather, the appellant’s claim to be an insured is solely predicated on his occupancy of the motor vehicle. Moreover, there is no contractual relationship between the insurer and the appellant. We will follow the lead of the Thompson Court by not elevating form over substance. We find the argument that the appellant is a “class one” insured unpersuasive.

Order affirmed.

Ford Elliott, J., concurs in the result reached by the majority.

Del Sole, J., files a Dissenting Opinion.

DEL SOLE, Judge,

dissenting:

For the reasons expressed in my dissenting opinion in Jeffrey v. Erie Insurance Exchange, 423 Pa.Super. 483, 621 A.2d 635 (1991), I dissent.

        . We note that our decision is also in comport with a panel decision of this Court, Providence Washington Ins. Co. v. Rosato, 328 Pa.Super. 290, 476 A.2d 1334 (1984). In Providence, we declared that a guest passenger was not made a “class one” insured simply because the policy language in that case defined an insured to include "any other person while occupying an insured highway vehicle.” Id. at 299, 476 A.2d at 1339. Presently, we note the policy language sub judice is substantially the same as that in Rosato, predicating coverage on the appellant's temporary status as an occupant of the vehicle.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    621 A.2d 656
    ERIE INSURANCE EXCHANGE, Appellee, v. Darrin R. DANIELSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1992.
    Filed March 1, 1993.

      Bernard J. Hessley, Warren, for appellant.
    Craig R.F. Murphey, Erie, for appellee.
    Before ROWLEY, President Judge, and DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

Appellant, Darrin R. Danielson, appeals from the trial court order granting a motion for judgment on the pleadings filed by Appellee, Erie Insurance Exchange (“Erie”), in an action for declaratory judgment. We are asked to decide whether a plaintiff seeking to recover damages sustained by him in an automobile accident involving an uninsured motor vehicle and an underinsured motor vehicle, in which he was a passenger, can recover both uninsured and underinsured benefits under a single automobile insurance policy. Based upon statutory law, as well as the language of the policy in the instant case, we determine that such recovery is not permitted and we affirm the order of the trial court.

The facts are undisputed. Appellant was injured on May 3, 1987, as a passenger in a motor vehicle operated by Brian M. Petruney. The Petruney vehicle was involved in an accident with an uninsured vehicle operated by Doreen Flick. Petruney was covered by an automobile insurance policy providing bodily injury liability limits of $15,000 per person/$30,000 per accident. Appellant was insured by a policy issued to his mother (“Mrs. Danielson”) by Erie, which contained uninsured/underinsured motorists coverage benefits of $100,000 per person/$300,000 per accident. The entirety of Petruney’s $30,000 of liability insurance was paid to various persons injured in the accident, including Appellant, who received $12,000. Appellant then demanded payment from Erie in the amount of $100,000 in uninsured motorist benefits and $100,-000 in underinsured motorist benefits from the uninsured/underinsured coverage of the policy issued to Mrs. Danielson by Erie.

On January 7, 1991, Erie filed a Complaint for Declaratory Judgment, seeking a declaration that Appellant was not entitled to recover more than the $100,000 policy limit of the uninsured/underinsured coverage of Mrs. Danielson’s policy, regardless of the presence of both an uninsured and an underinsured driver in the accident. Appellant filed preliminary objections to Erie’s complaint, alleging that the trial court did not have jurisdiction over the issues raised in the complaint, because of an arbitration clause in Erie’s policy which required submission of the issues to arbitrators. The trial court denied Appellant’s preliminary objections, and after the pleadings were completed, Erie moved for judgment on the pleadings. The trial court granted Erie’s motion, and this appeal followed.

Appellant first challenges the jurisdiction of the trial court, alleging that it lacked jurisdiction to enter judgment on the pleadings when the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”) provides for arbitration where the insurance policy provides that disagreements over the legal right to recover damages or the amount of damages will be settled by arbitration.

Generally, a case turning on the application or construction of an uninsured motorist clause is within the exclusive jurisdiction of the arbitration system. Daley-Sand v. West American Insurance Company, 387 Pa.Super. 630, 564 A.2d 965 (1989). However, when the issue is whether a particular provision of the insurance contract is contrary to a constitutional, legislative or administrative mandate, the courts properly exercise their jurisdiction over the entire matter. Id. Here, Appellant cites Wogelmuth v. Harleysville Mutual Insurance Company, 370 Pa.Super. 51, 535 A.2d 1145 (1988) for the proposition that the MVFRL is to be liberally construed to afford the greatest possible coverage to injured claimants. Appellant argues that because recovery of uninsured motorist benefits is authorized by the Pennsylvania Uninsured Motorist Coverage Law of 1971, and because recovery of underinsured motorists benefits is mandated by the MVFRL, he is entitled to both benefits under the same policy. Thus, Appellant in essence is stating that Erie’s policy provision which prohibits such recovery is contrary to statutory provisions entitling him to this recovery. In Azpell v. Old Republic Insurance Company, 526 Pa. 179, 584 A.2d 950 (1991), the Supreme Court of Pennsylvania stated:

Where, as here, a claimant challenges a provision of an uninsured motorist clause as being contrary to a statute, the Court of Common Pleas may exercise jurisdiction over the claim. See United Services Automobile Association Appeal, 227 Pa.Super. 508, 323 A.2d 737 (1974). [Davis v. Government Employees Ins. Co.,] 500 Pa. [84] at 88, Note 5, 454 A.2d [973] at 975, Note 5 (1982).

Therefore, because Appellant is challenging a provision of the Erie policy as being contrary to the recovery to which he alleges entitlement by statute, the trial court’s exercise of jurisdiction was appropriate and proper.

Appellant’s main contention is that because the accident in which he was injured involved two vehicles, one of which was uninsured and one of which was underinsured, he is entitled to recover both uninsured and underinsured benefits under the single policy issued to his mother by Erie. Appellant claims that the instant case is a “two vehicle Wogelmuth” situation, referring to this court’s decision in Wogelmuth v. Harleysville Mutual Insurance Company, 370 Pa.Super. 51, 535 A.2d 1145 (1988). In Wogelmuth, we held that a policy provision preventing a passenger who was in a one-car accident who had recovered the liability limits of the driver’s insurance policy from also recovering the underinsured motorist coverage of the same policy is not against public policy and is therefore enforceable. Appellants argues that according to Wogelmuth, the decisive factor barring recovery of both uninsured and underinsured benefits was the fact that only one vehicle was involved in the accident. Therefore, Appellant reasons, because an additional vehicle was involved in the accident in which he was injured, he is entitled to both uninsured and underinsured benefits.

Appellant overlooks, however, the distinguishing facts in the instant case: first, that he is attempting to recover both types of benefits when he was involved in a single accident, and second, that he is attempting to do so under a single policy. The fact that there were two tortfeasors involved in the instant case does not warrant a different result. Both the MVFRL and the terms of the Erie policy clearly prohibit the type of recovery sought by Appellant.

The Pennsylvania Motor Vehicle Financial Responsibility Law at the time of the accident provided:

(d) Limitation on Recovery. A person who recovers damages under uninsured motorist’s coverage or coverages cannot recover damages under underinsured motorist’s coverage or coverages for the same accident. (Emphasis added)

75 Pa.C.S.A. § 1731.

The provisions of the Danielson policy issued by Erie in the instant case also provide:

Reductions
A person who recovers damages under uninsured motorist’s coverage or coverages cannot recover damages under underinsured motorist’s coverage or coverages for the same accident. (Emphasis added)

Where the language of an insurance contract is clear and unambiguous, a court is required to give effect to that language. Standard Venetian Blind C. v. American Empire Insurance Company, 503 Pa. 300, 469 A.2d 563 (1983). A court may not “rewrite” an insurance contract, or construe clear and unambiguous language to mean other than what it says. Guardian Life Insurance Company v. Zerance, 505 Pa. 345, 479 A.2d 949 (1984). Such a provision may only be avoided if it violates public policy. Tallman v. Aetna Casualty and Surety Company, 372 Pa.Super. 593, 539 A.2d 1354 (1988).

Because both the MVFRL and the policy issued by Erie specifically prohibit recovery of both underinsured and uninsured benefits for the same accident, the trial court was correct in its denial of the recovery requested by Appellant.

Judgment affirmed.

      . The relevant portion of the Erie policy provides that "|d]isagreement over the legal right to recover damages or the amount of damages will be settled by arbitration.”


author: KELLY, Judge:

text:
    621 A.2d 659
    Carol E. BUTLER, Appellee, v. Leon I. BUTLER, Appellant. Carol E. BUTLER, Appellant, v. Leon I. BUTLER, Appellee.
    Superior Court of Pennsylvania.
    Argued June 8, 1992.
    Filed March 2, 1993.

      Rebecca N. Tortorici, York, for Carol Butler.
    Andrew B. Brown, York, for Leon Butler.
    Before MONTEMURO, KELLY and CERCONE, JJ.

      . Although Judge Montemuro participated in the initial decision rendered in this case, reconsideration of that decision was subsequently granted by the two remaining panel members alter Justice Montemuro’s ascension to the Pennsylvania Supreme Court. Thus, Justice Montemuro did not participate in the reconsideration of this case.

   KELLY, Judge:

In this opinion, we are called upon to determine whether the trial court committed error by apportioning the marital assets, including an accounting firm in which the husband is a shareholder, by their value on the hearing date instead of their value on the separation date when the husband’s ownership interest in the accounting firm decreased from a one-half interest at the time of separation to a one-third interest on the hearing date. In addition, we are called upon to determine whether the trial court properly ascribed the going concern value to the husband’s shares in the accounting firm rather than valuing them in accordance to the accounting firm’s shareholders buy-sell agreement. For the reasons that follow, we vacate the order of equitable distribution and remand for a re-determination consistent with the principles stated herein.

The relevant facts and procedural history of this case are as follows. Carol Butler and Leon Butler were married on May 10, 1964. In the early years of their marriage, the wife worked as a school teacher, but later stayed at home to care for the parties’ three children. In 1980, the wife re-entered the job market as a retail sales clerk and briefly owned a gift shop. Leon Butler is employed as a partner in a certified public accounting firm.

In May of 1983, after nineteen years of marriage, the parties separated. A brief reconciliation from May to December 1984 ended when the parties finally separated. The wife remained in the marital residence with the couple’s children. When the parties were divorced by a decree entered on April 12, 1988, the issue of equitable distribution of the marital property remained unresolved.

A court-appointed master held hearings and received evidence on matters related to equitable distribution, alimony pendente lite, alimony, counsel fees, and costs. The interim master’s report of December 11, 1988 recommended that the wife receive $400.00 per week of alimony pendente lite, retroactive to May 1, 1988.

Evidence presented before the master showed that at the time of the parties separation, the husband was a fifty percent owner in the certified public accounting firm of Einhorn, Butler and Gingerich. In 1986, the firm acquired an additional partner, reducing the husband’s interest in the firm to one-third. According to the wife’s expert, the firm had a value of $546,889.00. The husband asserted that the value of his interest in the firm was actually $2,450.00, the sale price of the husband’s shares, as determined in the buy/sell agreement.

The master also heard evidence that the wife was working in retail sales and earning a gross monthly salary of $1,008.42 per month. The wife introduced evidence that her monthly expenses amounted to $4,237.00. The wife testified that monetary advancement would require an additional six to seven years of work experience. At the time of the hearing, the parties’ youngest child was still living in the marital residence with the wife, and the elder children, who were away at college, would return to the marital residence during their school vacations.

From the time of final separation in December of 1984 until October of 1988, the husband maintained the marital residence and paid child support. During this time, the husband made the monthly mortgage payments, as well as repair bills, insurance, utilities, and other costs associated with the maintenance of the marital residence.

The master determined that the total value of the marital assets was $444,419.25 and recommended that the wife receive fifty-five percent of the value of the marital assets. The master determined that the following were marital assets retained by the husband:

1. 200 East Market Street......................$107,092.99
2. l/fi interest in Einhorn, Butler and Gingerich.....141,148.16
3. Stocks as follows
140 shares W.L. Morgan 1,558.00
761.86 shares Mellon Bank 20,379.00
44 shares Figgie 1,903.00
75 shares William Home Products 3,023.00
4. Dividends on stocks............................. 8,456.00
5. O.K. Corral................................... 10,000.00
6. Life insurance..................................5,210.00
7. Automobiles
Mercedes
Aztec....................................... 22,500.00
8. Husband’s pension.............................. 7,800.00
9. Grandfather clock.............................. 10,000.00
10. Bank accounts
Community National.............................44.46
York Federal...................................250.00
York Bank and Trust............................60.00
11. B.E.G. Associates...................................0.00
12. Cash Management Account................... $25,120.72
Total...................$364,545.33
Husband to pay the loan he made to fund “All Tied
Up”............................................. 16,000.00
and to pay the Einhorn Est........................141,791.67
and to pay his loan from
Sheldon Lipsity.................................. 6,765.00
Total........................$199,988.66

The master also recommended that the husband should take the office building subject to the encumbrance in favor of the York Bank. In addition, the master determined that the wife ought to retain the following marital assets:

1. 60 Tyler Run Road..........................$154,035.25
2. Fixtures, furniture, silverware, chattels at 60
Tyler Run Road (not including the grandfather clock) ................................ 20,000.00
3. Jewelry....................................... 13,000.00
4. Renault automobile............................. 4,500.00
5. 551.38 shares Continental Bank................. 21,986.06
6. 222 shares Drovers Bank Corporation............ 8,880.00
7. Cash—Cash Management account...............32,514.28
8. Stock dividends................................. 2,272.00
9. Life Insurance (Penn. National).............. 1,000.00
Total...................$258,187.59
Wife to pay Dauphin Deposit Loan........... 13,757.00
Total...................$244,430.59

The master also recommended that the wife take the marital residence subject to a mortgage and that she pay a $1,000.00 credit card debt. Master’s Report of 5/12/88 at 25-27.

After determining that the fair rental value of the marital home was $1,500.00 per month, the master recommended that the husband receive a credit for one half of the fair rental value for the period of May, 1983 until November, 1988, when the wife occupied the home rent-free. In addition, the master further recommended that the wife receive $300.00 per week in alimony. Finally, the master determined that the wife should be awarded counsel fees of $7,500.00 and expenses of $1,750.00. Both the wife and husband filed exceptions to the master’s report.

On October 2, 1991, the trial court issued its opinion and order affirming most of the master’s recommendations, thereby dismissing the majority of the parties’ exceptions. However, the trial court modified the master’s recommended alimony pendente lite award of $400.00 per week retroactive to May 1, 1988 to an alimony pendente lite award of $400.00 per week for the period of May 1, 1988 through June 15, 1989 and $300.00 per week for the period of June 16, 1989 through the date of the entry of the trial court’s order. The trial court also directed that the husband pay $300.00 per week in alimony to the wife for a period of four years. The wife filed this timely appeal and the husband filed a cross-appeal.

On appeal, the wife raises the following issue for our review:

1. THE TRIAL COURT IMPROPERLY DETERMINED THAT THE HUSBAND OWNED ONE-THIRD OF HIS ACCOUNTING PRACTICE FOR EQUITABLE DISTRIBUTION PURPOSES WHEN HUSBAND OWNS FIFTY PERCENT OF THE PRACTICE FOR EQUITABLE DISTRIBUTION PURPOSES.

Wife’s Brief at 5.

In a cross-appeal, the husband raises the following issues for our review:

1. DID THE LOWER COURT ERR IN ESTABLISHING THE VALUE OF THE PROFESSIONAL CORPORATION PARTLY OWNED BY THE HUSBAND, AND PARTICULARLY THE “INTANGIBLE” VALUE OF THE CORPORATION?
2. DID THE LOWER COURT ERR IN AWARDING COUNSEL FEES TO THE WIFE IN ADDITION TO AWARDING ALIMONY PENDENTE LITE TO THE WIFE?
3. DID THE LOWER COURT ERR BY FINDING THAT THE HUSBAND WAS DUE A CREDIT FOR ONE-HALF OF THE FAIR RENTAL VALUE OF THE MARITAL RESIDENCE BETWEEN DECEMBER, 1984 AND OCTOBER, 1988 AND THEN FAILING TO INCORPORATE SAID CREDIT INTO THE FINAL EQUITABLE DISTRIBUTION ORDER?

Husband’s Brief at 1.

The husband and the wife raise various issues on appeal challenging the trial court’s affirmation of the master’s recommendations. Initially, we note that our standard of review is a limited one. We need determine whether the trial court, by misapplication of the law or failure to follow proper legal procedure, abused its discretion. Zollars v. Zollars, 397 Pa.Super. 204, 579 A.2d 1328 (1990), alloc. denied, 527 Pa. 603, 589 A.2d 693 (1991); Malseed v. Malseed, 388 Pa.Super. 214, 565 A.2d 453 (1989); Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987), alloc. denied, 517 Pa. 623, 538 A.2d 877 (1988). Moreover, “an abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.” Zollars, supra, 397 Pa.Super. at 208, 579 A.2d at 1330, quoting Sergi v. Sergi, 351 Pa.Super. 588, 591, 506 A.2d 928, 930 (1986). Specifically, we measure the circumstances of the case and the conclusions drawn therefrom by the trial court against the provision of 23 Pa.C.S.A. § 3502(a), and the avowed intentions of the Divorce Code, namely to “effectuate economic justice between [the] parties ... and insure a fair and just determination of their property rights.” 23 Pa.C.S.A. § 3102(a)(6). A master’s report is entitled to great considerations by, but is not binding upon, the trial court. Morschhauser v. Morschhauser, 357 Pa.Super. 339, 349, 516 A.2d 10, 15 (1986) (citations omitted).

The wife argues that the trial court erred in affirming the master’s findings that the husband owned one-third of the accounting practice. The wife contends that the trial court misapplied the law when it used the day of the hearing as a benchmark for both identifying and valuing the marital assets. The wife argues that the husband’s interest in the accounting firm must be identified as of the date of separation or distribution because either of those dates would provide most adequately for economic justice. We agree in part, and we find that the trial court misapplied the law in looking to the hearing date to determine the husband’s share of the accounting practice.

Our courts distinguish the date for identifying marital property from the date by which to place a value on marital assets for equitable distribution. See Adelstein v. Adelstein, 381 Pa.Super. 221, 553 A.2d 436 (1989); Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928, 930-31 (1986). The Divorce Code mandates the our courts examine the parties’ property as of the date of final separation in order to identify which assets are marital property. See 23 Pa.C.S.A. § 3501. In the same vein, this Court has stated that the “[e]xistence and nature of marital property are determined as of the date of separation.” Adelstein, supra, 381 Pa.Super. at 225, 553 A.2d at 438. Although marital property is identified at the date of separation, the value of the property is determined at the date of distribution. Adelstein, supra; Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988).

When the parties finally separated in December of 1984, the husband owned a one-half interest in the accounting practice. At the time of the master’s hearing in October of 1988, the accounting firm had acquired an additional partner (thus reducing the husband’s share to one-third). However, the decisive date on which to determine which of the parties’ assets were marital assets available for equitable division was the date of the final separation. Therefore, on remand, the equitable distribution scheme must be based on the husband’s fifty percent ownership of the accounting firm of Einhorn, Butler and Gingerich.

In his cross-appeal, the husband argues that the trial court erred in affirming the master’s conclusion that the value of the accounting firm was $423,440.50. Specifically, the husband contends that goodwill was improperly included in the valuation of the firm and that the value of the firm is controlled by the buy/sell agreement. We cannot agree.

Admittedly, placing a valuation on a spouse’s interest in a small business is a difficult task. However, our courts have addressed the factors to be considered. In Buckl v. Buckl, this Court stated that initial consideration must be given to an agreement governing the value of an ownership interest. 373 Pa.Super. 521, 532, 542 A.2d 65, 70 (1988) (en banc). However, the Buckl court noted that it was mindful that “it is most unlikely that the agreement will deal with valuation of a partner’s interest vis a vis equitable distribution upon dissolution of the martial relationship,” and that it “must look at the realities of the situation and avoid an unrealistic valuation.” Id. Thus, other factors must be considered, namely, “the monetary worth of the professional partnership ... diminished by the amount of accounts payable ... [and] any other liabilities not reflected on the partnership books.” Id. The Buckl court further stated that the partnership’s monetary worth

consistís] of the partners’ capital accounts, accounts receivable, the value of work in progress, any appreciation in the true worth of tangible property over and above book value, together with goodwill, should there be any.

Id.

This Court has defined “goodwill” as “the favor which the management of a business has won from the public, and probability that old customers will continue their patronage.” Buckl, supra, at 530, 542 A.2d at 69. The Buckl court correctly noted that “the concept of goodwill is nebulous at best and consequently, the placing of a dollar valuation is most difficult.” Buckl, supra, at 529, 542 A.2d at 68. We have also described the considerations in deciding whether to include goodwill in the value of a business as follows:

If the nature of the economic good will is purely personal to the professional spouse, it is not alienable; hence, it cannot actually be realized and may not be included in the equitable distribution. If, however, a portion of the economic good will is attributable separately to the corporation or business and can be realized by sale to another (by selling the enterprise in whole or in part, buy-in’s and buy-out’s included), then to that extent, there is good will value subject to equitable distribution.

Fexa v. Fexa, 396 Pa.Super. 481, 487, 578 A.2d 1314, 1317 (1990). Whether there is goodwill subject to equitable distribution ultimately depends upon the facts of each particular case. Id.

The husband alleges that the trial court erred in not relying solely on the buy-sell agreement in placing a value on his interest in the accounting practice. In support of this argument, the husband cites our Supreme Court’s decision in McCabe v. McCabe, 525 Pa. 25, 575 A.2d 87 (1990). Husband argues that McCabe mandates a valuation based on the buy-sell agreement alone.

In McCabe, supra, our Supreme Court held that this Court properly remanded the case to the trial court to re-determine the distribution award based on the value of the husband’s partnership interest as listed in the partnership agreement, rather than the going concern value ascribed by the trial court. Id. at 31, 575 A.2d at 89. The Supreme Court determined that it would be inequitable to apply a going concern value to the husband’s partnership interest where the going concern value could never be realized by the husband because the husband’s shares could not be publicly or privately traded (thus there was no market for establishing the value of the partnership interest), the firm could not be sold or liquidated at a partner’s direction, and, under the partnership agreement, a partner could not:

remove from the firm a proportionate share of the accounts receivable, work-in-progress accounts, or other accounts included in the ‘going concern’ value [;] ... receive a proportionate share of the firm’s total value, including equipment, accounts receivable, etc; ... sell his interest to another individual; ... [or] retire from the firm and continue to receive a share of the firm’s profits.

Id.

The husband argues that McCabe is factually analogous to the case at hand and mandates that the trial court value his interest in the accounting practice at $2,450.00, as fixed by the buy-sell agreement entered into by the husband and his fellow shareholder. We do not agree.

The facts in McCabe are distinguishable in several respects. First, the husband in McCabe was one of many partners in a large law firm. 525 Pa. at 28, 575 A.2d at 88. Here, the husband was one of two shareholders at the time of the parties’ final separation. Second, the partnership agreement in McCabe limited the partner’s recovery upon leaving the firm to his share of the capital account, less indebtedness to the firm and his share of undistributed profits, id., and provided that the same sum was payable upon the death of a partner. Id. at n. 1. Here, the buy-sell agreement specifies that upon termination of employment or disability, the company would purchase the husband’s shares for $10.00 each, or a total of $2,450.00. However, in the event the husband died owning shares, the company would purchase them for $100,-000.00. Thus, in contrast to McCabe, the agreement here does not give a clear valuation for the husband’s interest.

In Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1986), this Court concluded that a sole proprietorship did not have goodwill for equitable distribution. The Beasley court stated:

[a] sole proprietorship can be distinguished from a partnership, or a professional corporation, to which an ascertainable value can be ascribed for the purpose of buying into or withdrawing from the relationship; but it is the association, or some share of it, that is valued and not the individual partner upon which the value is placed. See Geesbreght v. Geesbreght, 570 S.W.2d 427 (Tex.Civ.App.1978). The productivity or work effort of the partner is often not the measure of the share possessed by various members of the association. That, share is a measurable and marketable commodity and is generally defined by contract. When a sole proprietor terminates his activity, the lights go out, the value of the sole proprietorship is extinguished and is nontransferable; the clients in the law firm cannot be sold, they can only be transferred and they have the absolute right to select their own future representation; nothing remains in residue which could be determined of value aside from tangible physical property, or work performed on partially completed cases, which may entitle the lawyer or his heirs to a quantum meruit payment.

Id. 359 Pa.Super. at 35, 518 A.2d at 552. There, the husband, a solé proprietor, alone generated business. The clients patronized the husband, not the firm. Thus, goodwill was not included in the equitable distribution of marital property.

Similarly, in DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987), this Court did not include goodwill when valuing a spouse’s business for equitable distribution. There, as in Beasley, the court considered the husband, a medical doctor with a specialty in rheumatology, to be a sole practitioner. The DeMasi court reasoned that because the husband did not share clients with his partner, the goodwill of the husband’s practice was merely personal and had no “present value” to be distributed. Id. at 44-45, 530 A.2d at 884.

On the other hand, this Court has determined that goodwill ought to be included in the value of a spouse’s business. In Fexa, supra, we concluded that the value of the husband’s interest in a dental practice contained goodwill subject to equitable distribution. There, we noted that although the dental practice experienced several changes in its partnership makeup,

[t]he form of the business and its work continued unchanged, ... thereby demonstrating that the good will of the clients of the business toward the business was not tied exclusively to the presence or skills of particular individuals but was tied to some extent to the service that could be provided by any of a number of dentists.... The good will was capable of being valued for the purpose of buying into or withdrawing from the partnership itself, making it an asset to the business, rather than a purely personal asset.

Fexa, supra, 396 Pa.Super. at 489, 578 A.2d at 1318.

Instantly, we find that the goodwill value of the accounting firm of Einhorn, Butler, and Gingerich is a business asset subject to equitable distribution. A close scrutiny of the record reveals that the facts in this case are more similar to Fexa than to Beasley and DeMasi. Here, the husband’s father established the accounting practice, and the husband joined the firm after graduating from college. Following the husband’s father’s death, a third shareholder came into the firm and was subsequently bought out, yet the firm still remained. Therefore, the husband’s practice cannot be equated with a sole proprietorship as in Beasley and DeMasi. Moreover, the husband himself acquired clients from his father, warranting an inference that the clients had some loyalty to the firm rather than a particular accountant’s skills.

The husband next raises the issue of whether the trial court may award both alimony pendente lite and counsel fees and costs. The husband contends that the trial court erred in awarding the wife fifty-five percent of the marital assets, together with alimony pendente lite, and counsel fees. We cannot agree.

The recommendations of the master in a divorce proceeding, although entitled to careful consideration, are advisory only; the trial court is required to review the master’s report, determine if his or her recommendations are appropriate, and enter a final decree. Reed v. Reed, 354 Pa.Super. 284, 511 A.2d 874 (1986). However, the determination of the amount of alimony pendente lite warranted rests in the first instance on the trial court’s exercise of sound discretion; absent an abuse of discretion, a trial court’s award of alimony pendente lite will not be disturbed. Miller v. Miller, 352 Pa.Super. 432, 508 A.2d 550 (1986).

The purpose of alimony pendente lite is to sustain the dependent spouse on an equal basis with the other spouse while he or she maintains or defends a divorce action. Krakovsky v. Krakovsky, 400 Pa.Super. 260, 583 A.2d 485 (1990). The simple fact that one spouse earns more than the other spouse does not automatically entitle the other spouse to alimony pendente lite. Rather, the spouse seeking alimony pendente lite must need such relief to adequately defend his or her rights in the principal litigation. Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984).

Instantly, the trial court reviewed the master’s recommendations that the wife receive alimony pendente lite and concurred with the report. The trial court weighed the relevant factors necessary to determine an award of alimony pendente lite and determined that the wife was entitled to alimony pendente lite. Our review of the record reveals that there was a great disparity between the income levels of the parties, with the husband enjoying a substantially higher income. Also, the record shows that the wife resorted to selling her jewelry to maintain the divorce proceedings. Accordingly, we find ample evidence in the record to support the trial court’s finding that the wife was entitled to alimony pendente lite.

The purpose of an award of counsel fees is to ensure that the financially dependent spouse will be able to maintain or defend against an action for divorce, as well as to effectuate economic justice. Schubert v. Schubert, 398 Pa.Super. 284, 580 A.2d 1351 (1990). Counsel fees in a divorce proceeding are not awarded automatically; the petitioning spouse must show actual need before such an award is justified. Kohl v. Kohl, 387 Pa.Super. 367, 564 A.2d 222 (1989). Moreover, a “dependent spouse may be entitled to alimony pendente lite and counsel fees because both are necessary to maintain the divorce proceeding.” DeMasi, supra at 530 A.2d at 880. The amount of an award for counsel fees, costs, and expenses awarded in a divorce action is within the discretion of the trial court and is subject to an abuse of discretion standard on appeal. Williamson v. Williamson, 402 Pa.Super. 276, 586 A.2d 967 (1991).

Here, the trial court adopted the master’s recommendations that, due to the great disparity in the parties incomes, the wife was entitled to have the husband pay a portion of her counsel fees and costs. Simply because the wife will receive alimony pendente lite and fifty-five percent of the marital estate does not preclude an award of counsel fees and costs. Our review of the record reveals that the assessment of the wife’s counsel fees and costs to the husband allows the wife to defend herself in this divorce action and effectuates economic justice. Accordingly, we find no abuse of discretion in the trial court’s adoption of the master’s recommendation that the husband be ordered to pay a portion of the wife’s counsel fees and costs.

Finally, the husband asserts that the trial court improperly credited him with the fair rental value of the marital residence. The husband argues that the trial court erred in including the fair rental value of the marital residence, $34,-500.00, in the marital estate, then crediting the wife as having received her share of the fair rental value. We agree.

A court engaged in equitably distributing the marital estate must consider the efforts each spouse expended to preserve marital assets. See 23 Pa.C.S.A. § 3502(a)(7). Thus, an equitable distribution scheme may include an award, to the non-possessing spouse, of one-half of the rental value of the marital residence, when possessed exclusively by the other spouse during the parties’ separation. Powell v. Powell, 395 Pa.Super. 345, 577 A.2d 576 (1990); Gruver v. Gruver, 372 Pa.Super. 194, 200, 539 A.2d 395, 398 (1988); Hutnik v. Hutnik, 369 Pa.Super. 263, 270, 535 A.2d 151, 154 (1987); Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). However, we have also upheld deductions from rental value awards for: the non-possessing spouse’s share of expenses related to preserving the marital residence (i.e. mortgage, insurance, taxes, maintenance), see Powell; Hutnik; Gee, and for amounts owed by the non-possessing spouse to the possessing spouse’s parents. See Gruver, supra, 372 Pa.Super. at 200, 539 A.2d at 398.

While we have affirmed the trial court’s awarding one spouse a portion of the rental value of the marital home, when possessed exclusively by the other spouse, an award of rent is not mandatory. In Sutliff v. Sutliff, supra, we affirmed an equitable distribution scheme which lacked an award for rent for the non-possessing spouse. 361 Pa.Super. 504, 522 A.2d 1144 (1987), reversed on other grounds, 518 Pa. 378, 543 A.2d 534 (1988). See also King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). In declining to mandate such a practice, we stated in Sutliff that:

[although an award of rent is permissible, we do not deem it an abuse of discretion by the court to refuse to take such an action in this case.... We evaluate the court’s decision in light of the totality of the circumstances and the equitable distribution order as a whole.

361 Pa.Super. at 525, 522 A.2d at 1154. Likewise, in Powell, supra, we stated: “[i]n the trial court’s discretion, he [the non-possessor spouse] may be entitled to a portion of the fair market rental value of the marital home.” 395 Pa.Super. at 361, 577 A.2d at 584 (emphasis added). This is consistent with our opinion in Hutnik, supra, where we held that the spouse who is out of possession must be compensated for his or her rights and interests in the marital property, and that an award of fair market rental value of the marital residence, while in the exclusive possession of the other spouse, was one proper means of compensating the non-possessor. See also Gee, supra (rental payments, though not specifically requested, compensated the non-possessor spouse for rights and interest in land and not abuse of discretion).

Here, the husband left the marital residence and the wife remained in the home with the couple’s youngest child and their older children, who would return to the marital home on school vacations. Although he was not in possession of the marital residence, the husband preserved the marital residence by paying the mortgage payments, insurance, bills and utilities from the time of separation until October, 1988. The trial court included the fair market rental value of the marital residence as an asset in the marital estate. Having included the fair market rental value in the marital estate, the trial court then credited the wife as having received her one-half of the rental value. We find the methodology employed by the trial court of adding in the entire fair market rental value into the marital estate as a marital asset before the division of the marital estate, then multiplying the entire marital estate by wife’s fifty-five percent share and granting the husband a credit from this figure of one-half the fair market value of the marital home to be incorrect for the following reasons.

The fair market rental value of the marital residence cannot be considered a marital asset subject to equitable distribution as it represents revenues that were foregone by the marital estate due to the wife’s residence in the property after the parties separated. Therefore, the fair market rental value of the marital home was improperly deemed a marital asset by the trial court, thereby artificially inflating the value of the marital estate. As the wife’s share of these foregone potential revenues, which would have been part of the aggregate marital estate, were consumed during her tenure in the marital home; she is not entitled to receive any portion of these foregone revenues. Accordingly, the proper methodology for granting the husband a credit for his share of the foregone fair market rental value of the marital residence is to deduct his share of the foregone revenues from the wife’s ultimate distribution of the marital estate.

In addition, we note that the trial court incorrectly calculated the fair rental value based on forty-two months. The husband financially maintained the marital residence while the wife enjoyed exclusive possession for forty-seven months, not forty-two months. Thus, the trial court should have used the forty-seven month figure in its calculation of the fair rental value of the marital home.

In light of our determination that the trial court erred by using the hearing date in its valuation of the husband’s business rather than the date of separation, and both its improper inclusion of the fair market rental value of the marital home into the marital estate and its failure to calculate the fair market rental of the marital home based upon the forty-seven months that the wife exclusively possessed it, the order of equitable distribution must be vacated and the matter is remanded for further proceedings. Additionally, as the trial court’s usage of the separation date for the valuation of the husband’s business -will substantially change the economic positions of the parties and upset the original carefully crafted scheme of the trial court’s order concerning alimony pendente lite, counsel fees and costs, the distribution of- the marital estate, and the wife’s alimony award, we are constrained to vacate entirely the trial court’s order and remand the case for proceedings consistent -with this opinion, so that economic justice between the parties may be achieved.

Order vacated and remanded. Jurisdiction relinquished.

      . 23 P.S. § 401 (repealed). The Divorce Code, 23 Pa.C.S.A. § 3101 et seq., replaced the existing code, 23 P.S. § 101 et seq. Thus, we will refer to the section numbers under the new code.

      . 23 P.S. § 102 (repealed).


author: McEWEN, Judge. TAMILIA, Judge,

text:
    621 A.2d 669
    In the Interest of BARRY W. Appeal of BARRY W.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1992.
    Filed March 2, 1993.

      Steven C. Scarpa, Philadelphia, for appellant.
    John K. McDonald, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, McEWEN, DEL SOLE, BECK, TAMILIA, KELLY, POPOVICH and FORD ELLIOTT, JJ.
   McEWEN, Judge.

This is an appeal from an order which adjudicated appellant delinquent based upon commission of the offenses of aggravated assault, 18 Pa.C.S. § 2702(a)(3), and resisting arrest, 18 Pa.C.S. § 5104. A divided panel of this Court found the evidence insufficient as to the offense of resisting arrest but affirmed the adjudication of delinquency on the basis of the charges of aggravated assault. This Court, in response to the petition for reargument filed by the Commonwealth and its contention that reargument was imperative in order to “have this Court confine itself to its proper role of appellate review of sufficiency of the evidence claims”, granted en banc review. We have engaged, pursuant to our prescribed standard of review, in a thorough review of the record and the applicable law, and again find the evidence insufficient to sustain the conviction for resisting arrest, but affirm the order adjudicating appellant delinquent based upon the aggravated assault charges.

The opinion of the distinguished Judge Frank X. O’Brien provides an accurate summary of the evidence presented by the Commonwealth at trial:

On September 4, 1990, the defendant, Barry W., (d.o.b. 8/24/72) was tried and found guilty of aggravated assault, simple assault, and resisting arrest and adjudged delinquent. A post-trial motion for a new trial on grounds that there was insufficient evidence to show intent or knowledge under 18 Pa.C.S. § 2702(a)(3) (aggravated assault) or prohibited conduct under 18 Pa.C.S. § 5104 (resisting arrest) was denied on October 2, 1990.
Testimony at trial indicated that on August 6, 1990, at approximately 10:05 p.m., police officer David Ashby, while in a marked police vehicle with a partner, received a radio call: “Investigating (sic) male selling narcotics” at a specific location. Officer Ashby, in uniform, observed two (2) males standing on a corner at the designated location. He approached the two (2) males and said: “stop police”. The two (2) males, one being the defendant, began to run. Officer Ashby pursued the defendant in the belief that the latter was selling drugs and observed the defendant throw an object to another person which the officer believed was narcotics. Officer Ashby pursued on foot and his partner followed in the police vehicle. At that point, Officer Ashby and his partner were joined by uniformed police officers Mays and Borans.
Officer Ashby attempted to arrest and “cuff’ the defendant while Officer Delores Borans tried to hold defendant. At some point the defendant turned and struck Officer Borans. In the continuing struggle defendant then pushed Officer Borans with the flat of his hand into a truck parked a couple of feet away. As a result of the push Officer Borans fell against the rear of the truck and cut her hand on a broken window.

Appellant first argues that the evidence is insufficient to establish the essential elements of the offense of resisting arrest, 18 Pa.C.S. § 5104, or aggravated assault, 18 Pa.C.S. § 2702(a)(3) since the Commonwealth’s evidence failed to establish that there had been a lawful arrest or that the arresting officer was “discharging any other public duty”. While we find the evidence sufficient as to the offense of aggravated assault, we find it insufficient to establish one of the essential elements of the offense of resisting arrest, specifically, that the arrest itself was lawful.

Our scope of review in an appeal involving a challenge to the sufficiency of the evidence is well-settled:

The test for the sufficiency of the evidence in a criminal case is whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. See: Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). In making this determination, the reviewing court must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980).

Commonwealth v. Hughes, 521 Pa. 423, 438, 555 A.2d 1264, 1267 (1989). Accord: Commonwealth v. Thomas, 522 Pa. 256, 262-64, 561 A.2d 699, 702 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 244-46, 546 A.2d 1101, 1105 (1992); Commonwealth v. Gaynor, 417 Pa.Super. 417, 419-21, 612 A.2d 1010, 1011 (1992); Commonwealth v. Sample, 270 Pa.Super. 47, 49-51, 410 A.2d 889, 891 (1979).

The Commonwealth, in its brief, characterizes the evidence produced at trial as follows:

The Commonwealth’s evidence in this case clearly met that standard. The officers here received a radio call of a male selling narcotics at a corner only three blocks from their location. A few minutes later, they pulled up in their marked patrol car and saw two males standing at the very corner named in the radio call. One of the uniformed officers exited the car to investigate. At that moment, the two males, who were under a shelter, immediately fled into the driving rain. The officer ordered them to stop, but they continued to run from him. In flight, defendant tossed an object, which the officer believed to be drugs, to his cohort. The officer chased defendant and, after a struggle, subdued and handcuffed him.

While we agree with the Commonwealth that we are not free to substitute our view of the evidence for the factual findings of the trial court, the issue presented by the sufficiency challenge in this case involves the legal conclusion to be drawn from the facts found by the trial court. We as an appellate court are authorized, indeed required, to utilize a plenary scope of review in determining the validity of the legal conclusions made by the trial court.

The determination of whether probable cause or reasonable suspicion of criminal activity exists is a legal conclusion to be drawn from the facts as found by the suppression court. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

Commonwealth v. Stubblefield, 413 Pa.Super. 429, 435, 605 A.2d 799, 802 (1992).

Thus, utilizing only the evidence presented by the Commonwealth , this Court must determine whether that evidence was sufficient to establish each of the elements of the offense of resisting arrest and aggravated assault. Commonwealth v. Williamson, 582 Pa. 568, 616 A.2d 980 (1992).

Section 5104 of the Crimes Code provides:

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

18 Pa.C.S. § 5104. The eminent Justice Frank J. Montemuro, Jr., while still our colleague, clarified the essential elements of the offense of resisting arrest when he opined:

The provisions of 18 Pa.C.S. § 5104 are clearly disjunctive. To be convicted under the first provision of § 5104, it is essential that there be a lawful arrest. See Commonwealth v. Eberhardt, 304 Pa.Super. 222, 450 A.2d 651 (1982); Commonwealth v. Whitner, 241 Pa.Super. 316, 361 A.2d 414 (1976); Commonwealth v. Bartman, 240 Pa.Super. 495, 367 A.2d 1121 (1976); Commonwealth v. Stortecky, 238 Pa.Super. 117, 352 A.2d 491 (1975). In this case there is no evidence to show that the arrest underlying the resisting arrest charge was lawful. In fact both parties and the trial court agree that the York police officers did not have the authority to make a lawful arrest for “hit and run”—that is, leaving the scene of an accident after hitting an attended vehicle—because the incident did not occur in the presence of the officers. Under such circumstances, the appellant could not, as a matter of law, be convicted under the provisions of § 5104 pertaining to lawful arrest.
In light of the foregoing, the latter provision of § 5104, pertaining to “discharging any other public duty” besides effecting a lawful arrest, must be relied upon. To be convicted under the latter provision of § 5104, it is essential that there be a “discharge of any other duty” within the meaning of the statute. If we accept the argument of the Commonwealth, as did the trial court, the statute would be interpreted to allow every resisting arrest charge to stand whether or not supported by a lawful arrest. The police would undoubtedly argue in every case where there was an unlawful arrest that they were merely discharging a duty by investigating the circumstances surrounding the underlying incident. The grave abuse invited by such an interpretation of the “discharge of any other duty” provision of § 5104 was clearly not contemplated. An indication of what was contemplated is found by turning to Section 242.2 of the Model Penal Code, which § 5104 was modeled after. The Model Penal Code § 242.2 comment 5 (Official Draft and Revised Comments 1980), which deals with the physical obstruction of discharge of public duty, states:
‘Section 242.2 covers physical interference in a host of circumstances in which public servants discharge legal duties other than arrest. These include, for example, a policeman executing a search warrant, a fireman putting out a blaze, a forest or agricultural official making required inspections, an election official charged with monitoring balloting, and the like.’
Therefore we hold that the court below should not have sent the issue of resisting arrest to the jury because the evidence was not sufficient to support a verdict of guilty beyond a reasonable doubt.

Commonwealth v. Karl, 328 Pa.Super. 97, 102-03, 476 A.2d 908, 911 (1984) (emphasis in original). The rationale of the eminent jurist is just as applicable and compelling here, and so we hold that the Commonwealth is required to establish that the arrest of appellant was lawful in order to establish one of the essential elements of the offense of resisting arrest.

I. PROBABLE CAUSE

The Commonwealth first argues that there was probable cause to arrest appellant when, during the chase, “he took an object that he was carrying and tossed it to his fleeing cohort”, citing the opinion of this Court in Commonwealth v. Chase, 394 Pa.Super. 168, 575 A.2d 574 (1990) as dispositive of the probable cause issue before us. We find this contention devoid of merit. This Court found probable cause to arrest existed in Chase although characterizing the case as a “close one”, where an undercover officer purchased drugs from the defendant and immediately radioed his uniformed partner, stationed a few blocks away, that “he had just purchased narcotics from a black man wearing a blue shirt in the 1900 block of Orthodox, at the corner of Lackawanna and Orthodox”. The uniformed officer, upon arriving at the corner observed the defendant, a black man, dressed in a blue shirt, standing at the aforementioned corner. The officer alighted from his vehicle and announced “Police”, whereupon the appellant fled, only to be overtaken by the pursuing officer. In the instant case, there was no evidence of a contemporaneous drug sale to anyone much less to an undercover officer. There was no physical description of any kind of the person alleged to be selling drugs by the anonymous tipster. And there is no description of or reference to the item thrown by appellant to his companion other than references to an “object” by Officer Ashby. The officer was not asked to describe this object in any way and was not asked if the “object” was large or small, shiny or dull, metallic or cloth, dark or light. Certainly, so bland and undescriptive a reference to an “object”, even after attribution of all reasonable inferences arising therefrom cannot suffice to establish probable cause for a warrantless arrest.

II. REASONABLE SUSPICION

The Commonwealth argues in the alternative that the forcible stop of appellant was lawful since Officer Ashby, as a result of an anonymous tip to investigate a male selling drugs at the corner of 61st Street, had reasonable suspicion to support an investigatory stop of appellant.

“If [the] police have a reasonable suspicion that criminal activity is afoot, they may make a temporary, investigatory stop even though they lack probable cause to make an arrest”. Commonwealth v. Capers, 340 Pa.Super. 136, 141, 489 A.2d 879, 881 (1985) (citation omitted). The initial stop of a person is legitimate if the investigating officers “[c]an point to specific and articulable facts which in conjunction with rational inferences deriving therefrom reasonably warrant the intrusion”. Commonwealth v. Prengle [293 Pa.Super. 64, 68, 437 A.2d 992, 994 (1981) ], supra. Such a stop facilitates the acquisition of information useful to the investigating officers:
Terry recognizes that it may be the essence of good police work to adopt an intermediate response---- A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time.
Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (citations omitted).

Commonwealth v. Jackson, 359 Pa.Super. 433, 437, 519 A.2d 427, 429-430 (1986).

However, in order for a Terry stop to be constitutionally permissible, a police officer “must rely on specific and articulable facts which, if taken together with rational inferences from those facts, reasonably warrant a belief that criminal activity is afoot.... Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-17 (1972); Commonwealth v. Smith, 396 Pa.Super. 6, 577 A.2d 1387, 1389 (1990).” Commonwealth v. Martinez, 403 Pa.Super. 125, 127-28, 588 A.2d 513, 514 (1991) (emphasis supplied). Accord: Commonwealth v. Brown, 388 Pa.Super. 187, 190, 565 A.2d 177, 178 (1989); Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d. 301 (1990);. Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ; U.S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); and Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). As this Court recognized in In re Interest of Jermaine, 399 Pa.Super. 503, 582 A.2d 1058 (1990), allo. denied, 530 Pa. 643, 607 A.2d 253 (1992), the purpose of the Fourth Amendment to the United States Constitution as well as the purpose of Article 1 Section 8 of the Pennsylvania Constitution, is

“to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976). As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification____ “But if the person refuses to answer and the police take additional steps ... to obtain an answer, then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure.”

In re Jermaine, supra at 509-11, 582 A.2d at 1061, quoting INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984).

The Commonwealth concedes that the only basis for the initial approach by Officer Ashby was the radio bulletin to “investigate male selling drugs”. There was no description of the alleged felon, and the anonymous tip possessed no other indicia of reliability. This information was certainly insufficient as a matter of both state and federal constitutional law to establish reasonable suspicion to support a stop in the absence of corroborating observations by the investigating officers.

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Adams v. Williams, supra, demonstrates as much. We there assumed that the unverified tip from the known informant might not have been reliable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop. 407 U.S. [143] at 147, 92 S.Ct. 1921 [at 1923], 32 L.Ed.2d 612. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the “totality of the circumstances—the whole picture”, United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, [695], 66 L.Ed.2d 621, (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The [Illinois v.] Gates [462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527], Court applied its totality of the circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable suspicion context, the only difference being the level of suspicion that must be established.

Alabama v. White, 496 U.S. 325, 330-331, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990) (emphasis added).

The fact , that Officer Ashby and his partner were directed by a radio message based upon an anonymous tip to “investigate male selling drugs” does not alter the fact that upon approaching the two men standing under the roof ledge out of the rain, the officers did not then have sufficient information to justify a Terry stop. See: Commonwealth v. Jackson, 359 Pa.Super. 433, 437, 519 A.2d 427, 430 (1986); Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Cf. Commonwealth v. Lagana, 517 Pa. 371, 375, 537 A.2d 1351, 1354 (1988) (Terry stop and frisk permissible where radio broadcast indicated a white male 20 to 25 years of age wearing a yellow raincoat was at the corner of 9th and Wharton Streets in Philadelphia with a gun and, upon arriving two minutes later, the officers observed “a white male in his early twenties wearing a yellow raincoat who made his presence even more obvious because he was casing a business establishment with a pair of binoculars in the pouring rain”); Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978) (Police did not have reasonable suspicion for Terry stop and frisk based on a radio broadcast that a black male named Perry about 5'10" tall with a bush style haircut wearing a dark coat, who had escaped from a drug rehabilitation program, was in a bar at 57th and Master Streets in Philadelphia).

The Commonwealth argues that appellant’s flight, upon being approached by the uniformed police officer, constituted the requisite corroborating detail and created á reasonable suspicion that criminal activity was afoot, justifying a forcible stop. This argument raises important, interesting and exceedingly complex issues regarding the scope of the constitutional protections afforded to the citizens of this Commonwealth.

The United States Supreme Court recently altered the analysis historically utilized in reasonable suspicion/flight cases when, in California v. Hodari D., — U.S. -, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the Court held that items abandoned during a flight from an attempted Terry stop were admissible without any inquiry into the legality of the basis for the attempted stop.

In Hodari, plain-clothed officers were patrolling a high crime section of Oakland, California, when they spotted several youths congregated around a car which was parked on a curb. Upon seeing the officers’ unmarked car, the group took flight in different directions. With suspicions aroused, the officers pursued the youths. During a foot chase between Hodari and one officer, Hodari tossed a small rock-like object, and was thereafter tackled and handcuffed. A pager and $130 in cash were found on Hodari, and the abandoned property was determined to be crack cocaine. At trial, Hodari’s motion to suppress the evidence was denied. On appeal, the appellate court reversed, finding that Hodari had been seized at the time he abandoned the property, and the seizure was in violation of the Fourth Amendment. On certiorari to the Supreme Court, California conceded that the officers did not have the requisite reasonable suspicion to stop Hodari. However, the state argued that the more appropriate inquiry was whether Hodari had been seized when he abandoned the property where the officer’s attempt to stop Hodari had been unsuccessful. The court adopted California’s argument and permitted the inquiry to overstep a question of whether reasonable suspicion existed for a Terry stop, where such attempted stop was thwarted by a fleeing suspect. The opinion, authored by Justice Scalia, utilized a common law approach to the question of seizure and arrest and reasoned that a seizure had not occurred where Hodari refused to submit to the officer’s show of authority and, therefore, there was not a restraint on Hodari’s liberty. Concluding that Hodari had not been seized, the court reasoned that the crack cocaine was abandoned property, which was lawfully recovered by the police and was admissible evidence against Hodari. Instantly, we have an almost identical factual situation. Appellant was approached by a police officer who did not have reason to suspect appellant of criminal activity, but was acting on the reported observation of a passerby that appellant was “acting suspiciously”. As in Hodari, the uniformed officer made a show of authority, which in this case was ordering appellant to “stand fast”. Despite the officer’s attempt to detain appellant, appellant fled the scene.

Commonwealth v. Peterfield, 415 Pa.Super. 313, 324-25, 609 A.2d 540, 546 (1992) (emphasis supplied) (Dissenting Opinion by Ford-Elliott, J.).

In the instant case, pursuant to Hodari D, had Officer Ashby retrieved the “object” thrown by appellant, and had it been a prohibited weapon or contraband, it would have been admissible into evidence as abandoned property. However, the question presented by the case at bar is whether that flight established reasonable suspicion to forcibly detain appellant. We think not.

This Court has previously held, that “flight, in and of itself, cannot constitute probable cause to arrest. Commonwealth v. Pegram, 450 Pa. 590, 593, 301 A.2d 695, 697 (1973). The mere fact that a person ‘quickens his pace’ upon being observed by police and starts to run when a police officer begins to chase him does not give rise to a reasonable belief that criminal activity is afoot, and is therefore insufficient to justify even a Terry stop, absent some other factor which would give rise to criminal conduct”. Commonwealth v. Martinez, 403 Pa.Super. 125, 128, 588 A.2d 513, 514 (1991) citing Commonwealth v. Jeffries, 454 Pa. 320, 325, 311 A.2d 914, 917 (1973) (emphasis supplied).

A panel of this Court, in Commonwealth v. Metz, 412 Pa.Super. 100, 602 A.2d 1328 (1992), recently grappled with a closely belated issue—whether the attempt by a driver to avoid a roadblock was sufficient, standing alone, to constitute reasonable suspicion justifying an investigatory stop. While the Court, in a plurality decision, held that it was, the reasoning of our esteemed colleague, Judge John T.J. Kelly, Jr., is instructive in our reflection upon and resolution of the issue presently before this Court:

Because I believe that compliance with a roadblock within the motorist’s sight is legally obligatory, I would hold that avoidance of such a roadblock provides a basis for the police to presumptively infer that the motorist who does so is conscious of his or her guilt and is seeking to avoid its detection. The presumption could, of course, be rebutted by the facts which might otherwise dispel such suspicion, e.g. evidence of a medical emergency, etc. Where no evidence to rebut the presumption exists, however, I would find the officer maintains a reasonable suspicion that criminal activity is afoot and that an investigatory stop made thereafter is constitutionally permissible.
I note that I find nothing about such a presumption in any way inconsistent with either Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or its progeny which concludes that a pedestrian’s flight alone does not constitute reasonable suspicion. See Commonwealth v. Jeffries, 454 Pa. 320, 325, 311 A.2d 914, 917 (1973); Commonwealth v. Martinez, 403 Pa.Super. 125, 128, 588 A.2d 513, 514 (1991). No court of which I am aware, certainly none cited by any sub judice, has authorized police to conduct systematic obligatory “sidewalk blocks”. The pedestrian, therefore, has no obligation to comply with any detention upon merely being viewed by police. See Florida v. Bostick [501 U.S. -, 111 S.Ct. 2382, 115 L.Ed.2d 389], supra. The free citizen in a free country such as ours of course retains the discretion to run, walk, crawl or stop at that moment or any other under such circumstances, and accordingly, neither the police nor the courts can draw any adverse inferences from the exercise of any such discretion.

Commonwealth v. Metz, supra at 118-19, 602 A.2d at 1387 (emphasis in original) (Concurring opinion by Kelly, J.)

We are unwilling, as a matter of law, to hold that an anonymous tip bearing no indicia of reliability, and containing no predictions of future behavior, and unsupported by any corroborative observations by an officer, when coupled with flight, justifies a forcible Terry stop.

This Court, in Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513 (1991), allo. denied, 530 Pa. 653, 608 A.2d 29 (1992), noted that we had earlier rejected, in Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968 (1987), a similar argument seeking to justify a Terry stop on the basis of an obvious attempt to evade police officers:

[I]n order for a stop, or “seizure”, to be reasonable, and therefore legal under Terry v. Ohio, the police officer’s reasonable and articulable belief that criminal activity was afoot must be linked with his observation of suspicious or irregular behavior on behalf of the particular defendant stopped. 364 Pa.Super. at 609, 528 A.2d at 970. Mere presence near a high crime area or in the vicinity of a recently reported crime does not justify a Terry stop. Id. Conversely, an officer’s observation of irregular behavior without a concurrent reasonable belief that crime is afoot renders a stop unreasonable. 364 Pa.Super. at 609-10, 528 A.2d at 970.
What are the specific, articulable facts which would reasonably warrant a belief that criminal activity was afoot, when Officer Lee ordered Martinez to put her hands on the police vehicle? Martinez had walked quickly away from a street corner, at 12:20 a.m. She was holding her hands in the front of her coat and walking quickly up the street. There are no other articulable facts attributable to Martinez.
This case is quite similar on its facts to those presented in Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973). There, four police officers in an unmarked vehicle observed Jeffries walking along a public street. When Jeffries saw the officers, he quickened his pace. One officer left the vehicle and began to pursue Jeffries who then began to run. Before being overtaken, Jeffries threw a small package under a nearby automobile. The package was recovered and found to contain heroin. Our Supreme Court rejected the Commonwealth’s arguments that Jeffries’ flight supplied the necessary factual foundation for probable cause or, in the alternative, reasonable grounds to believe criminal activity was afoot under Terry v. Ohio. The court went on to hold that the evidence retrieved from under the automobile must be suppressed, due to the police officers’ unlawful and coercive activity, citing Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973).

Commonwealth v. Martinez, supra at 131-133, 588 A.2d at 515-517 (1991). See also: Commonwealth v. Harper, 416 Pa.Super. 608, 617 n. 3, 611 A.2d 1211, 1216 n. 3 (1992) (“[I]n Michigan v. Chesternut [486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565], the Court reiterated that in determining whether a Terry stop has occurred, it is necessary to utilize a standard that ‘allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment’. Such is certainly not the case in Hodari D., for what would otherwise be a groundless and thus illegal Terry seizure becomes conduct totally outside the Fourth Amendment merely because of the suspect’s nonsubmission”); Commonwealth v. Hunt, 280 Pa.Super. 205, 210, 421 A.2d 684, 686 (1980) (“Appellant’s flight alone, of course, is insufficient to establish probable cause”.)

Our Supreme Court recently reaffirmed that the requirements necessary to justify a Terry stop are constitutionally based and must be narrowly construed:

We emphatically reject the Superior Court’s “ends justify the means” analysis. By focusing its attention only upon the serious ills inflicted upon society by illegal narcotics, the Superior Court failed to recognize and respond to necessary constitutional constraints on excessive police conduct. The seriousness of the criminal activity under investigation, whether it is the sale of drugs or the commission of a violent crime, can never be used as justification for ignoring or abandoning the constitutional right of every individual in this Commonwealth to be free from intrusions upon his or her personal liberty absent probable cause.
Accordingly, we decline to adopt the rationale of the Superi- or Court or the arguments offered by the Commonwealth, and thus, we decline to expand the appropriately narrow “reasonable suspicion” exception to probable cause already established by the United States Supreme Court in Terry v. Ohio and by this Court in Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).

Commonwealth v. Rodriquez, 532 Pa. 62, 73, 614 A.2d 1378 (1992).

While we find the evidence insufficient to establish the offense of resisting arrest, we find that the challenge to the sufficiency of the evidence as to aggravated assault is meritless. Aggravated assault is defined by Section 2702 of the Crimes Code as follows:

(a) Offense defined—a person is guilty of aggravated assault if he:
(3) attempts to cause or intentionally or knowingly causes bodily injury to a police officer or firefighter in the performance of duty.

18 Pa.C.S. § 2702(a)(3) (emphasis supplied).

Appellant contends that the evidence was insufficient to establish that the injury to Officer Borans occurred “in the performance of duty”, an essential element of the offense. Unlike Section 5104 of the Crimes Code, the offense of aggravated assault, 18 Pa.C.S. § 2702(a)(3), does not require that the assault occur during an attempt to effectuate a lawful arrest. In 1986, the legislature amended 18 Pa.C.S. § 2702(a)(3) and substituted the words “in the performance of duty” for the words “making or attempting to make a lawful arrest”. This change broadened the scope of the statute, evidencing the concern of the legislature with protecting police officers from bodily injury under any circumstances.

In the instant case, when Officer Borans arrived on the scene to assist Officer Ashby and his partner, she was performing her official duty as a police officer. Consequently, when appellant pushed Officer Borans into the broken window, he committed an aggravated assault as defined by 18 Pa.C.S. § 2702(a)(3). Whether or not Officer Ashby was in the process of making a lawful arrest is irrelevant since Officer Borans was performing a necessary function of a police officer in coming to the aid of Officer Ashby. The evidence was, therefore, sufficient to establish the element of “performance of duty” and, therefore, this challenge to the sufficiency of the evidence must be rejected.

We, therefore, vacate the finding of guilty of resisting arrest, but affirm the adjudication of delinquency based upon the finding that appellant committed the offense of aggravated assault, 18 Pa.C.S. § 2702(a)(3).

TAMILIA, J., files concurring and dissenting opinion.

TAMILIA, Judge,

concurring and dissenting.

I join the majority in its affirmance of the adjudication of delinquency based on the aggravated assault. I dissent to the vacation of the finding of guilt as to resisting arrest. In conformity with the principles set forth by our Supreme Court in Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992), the Commonwealth as verdict winner is entitled to have this Court determine whether the evidence, and all reasonable inferences drawn therefrom, in a light most favorable to the Commonwealth, is sufficient to establish the elements of the crime. I fail to see the logic in the majority’s reasoning that permits the finding of aggravated assault because the police officer is attempting to subdue a suspect in the performance of his duty yet finds the same behavior is not the basis of a resisting arrest charge. The performance of the officers’ duty was an attempt to subdue the appellant to effect an arrest. Under a myriad of cases such a forceful attempt to take control of appellant would be construed as an arrest or at least a taking into custody and would result in suppression of any statement obtained from the person without providing Miranda warnings. To say this was not a lawful arrest or discharging any other duty is to ignore the realities of modern police duties. This Opinion imposes a burden on police which revisions of 18 Pa.C.S. § 5104, Resisting arrest or other law enforcement, attempted to alleviate. We cannot ask the police to vigorously pursue activity of a suspicious nature relying on their street expertise then move to limit the results of their reasonable actions. I would affirm the trial court.

CAVANAUGH, J., joins.

      . As set forth more fully hereinafter, we reject as meritless the challenge to the sufficiency of the evidence as to the charges of aggravated assault.

      . The Commonwealth presented the testimony of Officer Ashby and Officer Borans. Officer Ashby was the officer who initiated the chase, and Officer Borans was the female officer who was injured when she fell against the truck while attempting to assist the arresting officers.

      . Officer Ashby testified as follows:
      BY MR. RILEY:
      Q. What was the information received?
      A. Investigating male selling narcotics.
      Q. Where is that?
      A. 61st and Lansdowne.
      Q. Did you go to 61st and Lansdowne?
      A. Yes, that’s correct.
      Q. What if anything did you observe?
      A. I observed two males standing on the corner 61st and Lansdowne as I approached they start running.
      Q. Is one of them here?
      A. Young man right here.
      Q. What if anything did you say to them when you approached them?
      A. I said, "Stop police” they start running down the street. It was raining hard. I was chasing behind them down in the middle of the block as radio came out with "Pursuit of one black male” 19-Tom-#, with Officer Mays and Officer Borans of the 19th District, we start closing in on their vehicle. They came up on the pursuit. As we met we got hold of him in front of the truck, he started to tussle.
      Q. You say started to tussle? Who got ahold of him?
      A. I got hold of him. I was trying to cuff him. Officer Borans was trying to hold him down. He swung around hit her the first time.
      Q. Where was she standing when he struck her?
      A. She was behind him. Second time he turned around toward her pushed her toward the truck.
      Q. What happened to the officer?
      A. She cut her hand on something on the truck.
      Q. Now, did you in fact succeed in apprehending the defendant?
      A. Yes. I didn’t cuff him, my partner cuffed him. I was holding him down.
      Q. Officer, for what if any purpose did you chase the defendant? Why did you begin to chase the defendant?
      A. Because he started to run. He threw an object in the air as he was running.
      íH sis 4: sft
      Q. What if anything did you believe was going on when you got there?
      A. I believe they were selling drugs.
      BY MR. BANK:
      Q. When you arrived on the scene, after you got the radio call, how much time afterward was it?
      A. About two or three minutes.
      Q. Where were you when you got the radio call?
      A. 64th and Lansdowne.
      Q. You went from 64th Street down Lansdowne Avenue?
      A. That’s correct.
      Q. It was raining hard?
      A. Real hard.
      Q. Dark night?
      A. Yes, it was.
      Q. When you arrived there at 61st Street and saw these two males they were just standing there?
      A. Yes. Under ledge or roof.
      Q. Standing over a ledge?
      A. Yes.
      Q. Did you proceed to exit the vehicle?
      A. As I exited they ran.
      Q. Both ran?
      A. Yes.
      sj: sf: s[s sfc !■* s{i
      Q. From the time you saw the two young men under the ledge until you caught him, how long a distance was it?
      A. Three-quarters of the block.
      Q. Three-quarters of a block?
      A. Yes.
      Q. Your partner was chasing him, too?
      A. Driving the vehicle behind him.
      Q. When you caught him three-quarters of the way down the block that was still on 61st Street or Lansdowne?

        A. On 61st Street.
      Q. At that point when you saw him your partner was in a vehicle. Was Officer Borans there?
      A. Yes, she was.
      Q. You were trying to cuff him when this occurred?
      A. Yes.
      Q. How were you trying to cuff him?
      A. Grab Him. He was tussling. He was sweaty. He was slippery. We were trying to hold him.
      Q. Did you have his arms behind him?
      A. After everybody got on him we did.
      * # * * * *•

      [OFFICER BORANS:]
      Q. When you first arrived on the scene what was occurring?
      A. Officer from the other patrol car was in foot pursuit.
      Q. Officer Ashby?
      A. Yes.
      Q. He’s been here today. He just testified.
      A. Officer Ashby and his partner.
      Q. Did you in fact arrive when Officer Ashby was exiting his vehicle?
      A. The Officer went to approach the male.
      Q. You saw the Officer approach the male before he ran; is that correct?
      A. When he went over to the male, the male fled from him.
      Q. You saw that?
      A. Yes.
      Q. Where was that?
      A. They were going north on 61st and Lansdowne.
      Q. Where did the incident occur? Where were you with cuff’s and where was the van with the broken window parked?
      A. On 61st Street.
      Q. When Officer Ashby approached the males did you see them do anything beside run?
      A. I don't recall.

      . Appellant has not briefed the issue of the effect of Article 1, Section 8 of the Pennsylvania Constitution on this issue.

      . Judge Popovich wrote the lead opinion finding reasonable suspicion to stop, Judge Wieand filed a concurring opinion based upon the defendant’s waiver of the issue, and Judge Kelly filed a concurring statement.

      . Centuries ago, some observers proclaimed: Innocent men do not flee because the earth is flat. Some beliefs, of course, die hard. The observations of United States Supreme Court Justice John Paul Stevens aptly addresses this notion:
      The Court’s gratuitous [Biblical] quotation ... mistakenly assumes that innocent residents have no reason to fear the sudden approach of strangers. We have previously considered, and rejected, this ivory-towered analysis of the real world for it fails to describe the experience of many residents, particularly if they are members of a minority.... It has long been "a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion’ ”. Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, [868], 40 L.Ed. 1051 (1896).

        California v. Hodari D., — U.S. -, - n. 4, 111 S.Ct. 1547, 1553 n. 4, 113 L.Ed.2d 690, 700 n. 4 (Stevens, J., dissenting).

      . Similarly, if appellant had been convicted of aggravated assault based upon an attack upon Officer Ashby, the issue of the legality of the arrest would have been irrelevant to a determination of the sufficiency of the evidence to sustain the conviction since " ‘even an unlawful arrest does not excuse an assault upon an arresting officer’ ”, Commonwealth v. French, 396 Pa.Super. 436, 445, 578 A.2d 1292, 1296 (1990), quoting Commonwealth v. McKeirnan, 337 Pa.Super. 403, 408, 487 A.2d 7, 10 (1985).

      . We summarily reject the argument that the Commonwealth failed to establish the necessary mens rea for aggravated assault. See Commonwealth v. Fry, 341 Pa.Super. 333, 336, 491 A.2d 843, 844-845 (1985); In the Interest of J.L., 327 Pa.Super. 175, 178, 475 A.2d 156, 157 (1984).