author: ROWLEY, President Judge.

text:
    662 A.2d 1076
    COMMONWEALTH of Pennsylvania v. Joseph RICO, Appellant.
    Superior Court of Pennsylvania.
    Argued March 1, 1995.
    Filed June 21, 1995.
    Reargument Denied Sept. 5, 1995.

      Jack M. Myers, Philadelphia, for appellant.
    Marilyn F. Murray, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, P.J., and McEWEN and CIRILLO, JJ.
   ROWLEY, President Judge.

Robert Hornickle was killed in January, 1983, after he tried to recover $14,000 that he had borrowed from a Mend and then given to Ronald DeCaprio and appellant Joseph Rico in an unsuccessful attempt to buy marijuana. In April, 1986, DeCaprio was convicted on federal racketeering charges, with one of the predicate offenses being the murder of Hornickle. In May, 1990, appellant was charged with the murder of Hornickle. On February 21, 1992, a jury convicted appellant of murder in the first degree.

In this timely appeal from the judgment of sentence of life imprisonment, appellant contends that he is entitled to an arrest of judgment as the result of prejudicial pretrial delay that violated his right to due process. Alternatively, appellant asserts that he is entitled to a new trial for the following reasons: 1) the trial court erred in failing to strike the jury panel as the result of the prosecutor’s use of peremptory challenges to exclude jurors of Italian descent; 2) prosecutorial misconduct was so pervasive as to deny appellant a fair trial; and 3) the trial court permitted the Commonwealth to introduce inadmissible and prejudicial evidence. After careful review, we conclude that appellant’s rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), were violated and he is entitled to a new trial.

We turn first to appellant’s claim of prejudicial pretrial delay, for such a claim, if successful, would entitle him to be discharged. Commonwealth v. Colson, 507 Pa. 440, 451, 490 A.2d 811, 817 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). In her opinion of July 29, 1994, the trial court has concisely applied the controlling case law to the facts of appellant’s case, and we agree, for the reasons set forth at pages 5-8, that appellant’s claim is without merit. See also Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978) (pre-arrest delay of approximately six years and nine months did not violate due process); Commonwealth v. Grazier, 391 Pa.Super. 202, 570 A.2d 1054 (1990) (accord).

Appellant contends next that under Batson and its progeny, the trial court erred in refusing to strike the jury panel when the prosecutor failed to provide legitimate, race-neutral reasons for exercising peremptory challenges to strike jurors of Italian descent. We agree.

Batson requires that a “criminal defendant’s jury be selected without purposeful racial discrimination.” Commonwealth v. Smulsky, 415 Pa.Super. 461, 464, 609 A.2d 843, 844 (1992), appeal denied, 532 Pa. 663, 616 A.2d 984 (1992). The defendant has the initial burden to establish a prima facie case of purposeful discrimination, Commonwealth v. Dinwiddie, 529 Pa. 66, 601 A.2d 1216 (1992), by demonstrating that the circumstances of his case raise an inference that the prosecutor used his peremptory challenges to exclude venirepersons on the basis of race or ethnicity, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion per Kennedy, J.); Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994); Commonwealth v. Correa, 423 Pa.Super. 57, 620 A.2d 497 (1993), appeal denied, 536 Pa. 638, 639 A.2d 24 (1993).

Once a defendant establishes a prima facie case, the burden shifts to the prosecution to provide a legitimate, race-neutral reason for each peremptory challenge directed at the suspect racial or ethnic group. Dinwiddie, supra. Although the explanation need not rise to the level required for a challenge for cause, Correa, 423 Pa.Super. at 65, 620 A.2d at 501, a bald statement that the prosecutor’s actions involved “no racial motive,” or were undertaken in good faith, is insufficient to meet the burden of production necessary to rebut a prima facie case. Commonwealth v. Wheeler, 435 Pa.Super. 266, 271, 645 A.2d 853, 855 (1994), citing Smulsky, 415 Pa.Super. at 465, 609 A.2d at 844-45. A trial court’s subsequent determination with respect to intentional discrimination is a finding of fact to be given great deference in appellate review, Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313 (1993), and will not be disturbed absent a determination that the trial court’s ruling was clearly erroneous, Commonwealth v. Jackson, 386 Pa.Super. 29, 562 A.2d 338 (1989) (en banc), appeal denied, 525 Pa. 631, 578 A.2d 926 (1990) .

The Commonwealth argues that appellant failed to establish a prima facie case because Italian-Americans are not a cognizable group warranting protection from discrimination under Batson. We disagree. To begin with, in enunciating the now familiar principles of Batson (a case concerned with the exclusion of African-Americans from serving on a petit jury), the Court relied upon a previous decision involving systematic exclusion of Mexican-Americans from grand jury selection in Texas to identify the “showing necessary to establish a prima facie case of purposeful discrimination.” Batson, 476 U.S. at 94, 106 S.Ct. at 1722, citing Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).

Subsequent decisions of the United States Supreme Court, the Pennsylvania Supreme Court, and this Court, have increasingly recognized that any analysis of an alleged Batson violation should necessarily focus on the discriminatory pattern allegedly employed. To suggest, as the Commonwealth contends, that a Batson violation hinges only on whether the excluded group is a “cognizable group” through proof that the group has historically “been or [is] subject to discriminatory treatment,” would be a distortion of the law as it has evolved under Batson. If any identifiable group is excluded on the basis of race, gender, ethnicity, or other reason not related to a perception that the individual member would be unable to adequately perform the functions and duties required of a juror in the case presented, impermissible discrimination has occurred. See, e.g., J.E.B. v. Alabama ex rel T.B., — U.S. —, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (equal protection clause forbids exercise of peremptory challenges on basis of gender); Hernandez, supra (Batson violation would occur if prosecution exercised peremptory challenges to exclude “Latinos by reason of their ethnicity”; no clear error found in trial court’s determination that charge of purposeful discrimination was rebutted); Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (white defendant has equal right to object to exclusion of black veniremen through use of peremptory challenge); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (equal protection rights of challenged juror violated if challenge based on race); Commonwealth v. Horne, 535 Pa. 406, 635 A.2d 1033 (1994) (prosecutor’s reason for exclusion, that prospective juror lived in “high crime” area and was therefore desensitized to crime, was not race-neutral as applied to individual juror excluded) (Nix, C.J., Opinion in Support of Affirmance); Correa, supra (Powers decision eliminated two requirements of prima facie showing previously required of defendant under Batson: defendant no longer need establish that he or she is a member of a cognizable racial group, nor a member of the same group as that excluded through use of peremptory challenges).

We believe that the evolution of the law under Batson and its progeny consistently demonstrates that three distinct interests are implicated. First, a litigant has the right to a jury selection process free of discrimination. Second, a prospective juror has a right to participate in this essential civic duty with confidence that he or she was evaluated by virtue of ability to serve, regardless of race or ethnic heritage, and “free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.” J.E.B., — U.S. at —, 114 S.Ct. at 1421, 128 L.Ed.2d at 97. Lastly, the community has the right to an unquestioned belief that our system of justice operates without discrimination at every level. Dinwiddie, 529 Pa. at 75, 601 A.2d at 1220-21. Only if all three “multiple ends” identified by the Supreme Court are served is equal protection afforded to all. Powers, 499 U.S. at 406, 111 S.Ct. at 1368; Dinwiddie, supra.

Voir dire of prospective venirepersons for appellant’s trial consumed four days. Prior to swearing the first panel of prospective jurors, the trial court and counsel agreed to the questions the court would direct members of the panel to answer. They included inquiries with respect to a juror’s age, occupation, place and length of residence, as well as a specific question, composed by the trial court, regarding a prospective juror’s ability to be fair and impartial in light of “evidence in this case that might tend to connect the defendant and/or one or more of the witnesses with organized crime.” According to the trial court, the question was designed to benefit the prosecution as well as the defense, since it would elicit “whether they would have a prejudice.”

Of the twenty peremptory challenges available to, and used by the prosecutor, appellant points to seven exercised to exclude individuals of apparent Italian descent from those ultimately selected to serve on the jury at appellant’s trial. Appellant raised his first Batson objection when the prosecutor exercised two consecutive peremptory challenges the first day to exclude Cathy R. and Enrico S. When a third venireperson of apparent Italian descent, Linda G., was peremptorily excluded by the prosecutor, appellant’s counsel again objected, noting the prospective juror’s Italian surname. After discussion, the trial court informed the prosecutor, “I will give you notice to start noting down your reasons in case I require you.”

The following day, after the prosecutor exercised three more peremptory challenges to exclude venirepersons with Italian-sounding surnames, Mary T., Vincent G., and Susan B., the trial court acknowledged that a prima facie case of discriminatory intent had been made out in the following exchange:

THE COURT: [ ] We have had very few people of Italian descent on the jury panel. I notice two or three on each one of these panels. The same is true of this panel, very few and[,] except for Mr. DeAngelis who was accepted by the Commonwealth[,] all the others have been peremptory challenged by the Commonwealth.
MR. CAMPOLONGO: So what? Your Honor is saying I am not permitted to exercise?
THE COURT: That’s the entire point of [Batson], Mr. Campolongo, that the court can disallow a challenge if the court believes that the challenges are being used to purposely exclude one particular group and it would appear to me from the record that the record shows a purposeful exclusion o[r] pattern of exclusion on the part of [the] Commonwealth on anybody who appears to be of Italian descent.

The prosecutor exercised a seventh peremptory challenge to exclude a venireperson of conceded Italian descent, John T., from a panel drawn to select alternate jurors on the fourth day.

We find that the record supports the trial court’s determination that an inferential pattern of discriminatory intent was sufficiently established to properly shift the burden to the prosecutor to place on the record his reasons for exercising peremptory challenges against venirepersons of apparent Italian descent. Accordingly, once a prima facie case was made out and the prosecutor required to provide legitimate, ethnically neutral explanations, it is axiomatic that any justification so offered may not be based upon the individual’s ethnicity. Hernandez, 500 U.S. at 360, 111 S.Ct. at 1866, 114 L.Ed.2d at 405 (a neutral explanation means one based on something other than the race of the juror).

We turn, then, to a review of the record to determine if the prosecutor provided legitimate, ethnically neutral reasons for the exercise of its peremptory challenges against venirepersons of Italian descent.

We do not have the benefit of the prosecutor’s reasons for striking the first three jurors of apparent Italian descent, as the trial court, despite its ruling, failed to require the prosecutor to place his reasons on the record.

The record establishes an ethnically neutral reason for the prosecutor’s fourth peremptory challenge exercised against an individual of apparent Italian descent, Mary T. After conceding that Ms. T. was Italian, the prosecutor stated that he struck her for insufficient “intellectfual] wherewithal to comprehend the facts of the case.” The record confirms that the prospective juror struggled to comprehend the trial court’s use of the word “impartial” and admitted to being “a little nervous.” Doubt with respect to a juror’s ability to comprehend the court’s directions is a legitimate, race-neutral explanation. Wheeler, supra.

Similarly, the prosecutor’s peremptory challenge exercised on the last day of voir dire to exclude John T. as an alternate juror, although a closer case, was explained by his perception during the court’s voir dire that John T. was “a very, very strange person,” and “probably an extremely[,] very unusual person, probably gay,” and “not because he’s Italian. That’s really true.”

However, we need look no further than the explanation provided by the prosecutor when a fifth peremptory challenge was exercised to exclude venireperson Vincent G. to find a reason that, under any analysis, is not ethnically neutral:

MR. MYERS: I would ask your Honor that counsel state his reasons why he has used a peremptory challenge.
THE COURT: One moment. Mr. Campolongo?
MR. CAMPOLONGO: Yes, I didn’t like the way he reacted to the question about his ears turned red, he turned red the question asked about organized crime and he said I guess so, something like that. I didn’t like, I detected what I thought was fear in his demeanor and his voice when organized crime was mentioned and that in conjunction with his Italian background led me to believe he would not be a juror suitable with this case.

While the trial court denied defense counsel’s immediate objection and motion to dismiss the panel, we note that, unlike the other peremptory challenges at issue in this case, the trial court makes no attempt to provide an ethnically neutral justification in hindsight for the prosecutor’s reasons for striking this juror.

Our resolution of this case could well end with the conclusion that the prosecutor’s reason for striking prospective juror Vincent G. was impermissibly discriminatory. However, in light of the persuasive reasoning set forth in the Pennsylvania Supreme Court’s decision in Horne, supra, we are also troubled by the prosecutor’s exclusion of the next prospective juror of Italian descent, Susan B. When asked whether evidence that the defendant or one or more witnesses was linked to organized crime would affect her ability to be fair and impartial, she responded:

THE VENIREMAN: I don’t think that would bother me at all. I know I live in South Philadelphia and they consider that the mob area[,] but I don’t know anybody in organized crime so I don’t think it would effect [sic] me at all.
THE COURT: Do you have any doubt about that?
THE VENIREMAN: No.

The prosecutor offered the following justification for striking Susan B.:

THE COURT: Would you please place on the record your reason for peremptory of this juror who obviously is of Italian descent?
MR. CAMPOLONGO: I’ll agree she’s Italian. Appears to be Italian.
THE COURT: She said of Italian descent. Do you want me to ask her what her maiden name is?
MR. CAMPOLONGO: I’ll agree. I don’t think it’s necessary. I’m striking her because she lives in South Philadelphia in an area over which the mob will speak and I think she’s subject to intimidationf.J [I]n an abundance of caution I’m striking her.
THE COURT: I’m disallowing that challenge. There’s absolutely no indication at all of any of that on the part of this juror. She said she doesn’t know anybody and this wouldn’t have any effect on her and I don’t think this is reason for your challenge.

Despite its rejection of the prosecutor’s explanation, the trial court excused Susan B. after the prosecutor complained that exercising a peremptory strike in the juror’s presence would prejudice the prosecution at trial.

This attempt to justify striking Susan B. is especially egregious in light of the fact that the prosecutor went on to accept two jurors who resided in South Philadelphia, for thirty-five and twenty-three years respectively, but who were not of apparent Italian descent. Appellee argues that the prosecutor excluded Susan B. after making a determination that she lived in a specific “part of South Philadelphia subject to Mob or La Cosa Nostra influence.” Even were we to assume that a threat of insidious “mob” intimidation was real, the prosecutor failed to offer any reason why this particular prospective juror was more susceptible to intimidation than the jurors who were accepted. Absent evidence that a challenged venireperson “actually entertained the bias underlying the use of that factor,” place of residence is not necessarily a race-neutral explanation. Horne, 535 Pa. at 409, 635 A.2d at 1034, citing Lynn v. Alabama, 493 U.S. 945, 947-48, 110 S.Ct. 351, 352, 107 L.Ed.2d 338, 340 (1989) (Marshall, J., dissenting from denial of certiorari); but cf. Jackson, 386 Pa.Super. at 59, 562 A.2d at 353 (trial court did not err in accepting as neutral a prosecutor’s striking four prospective jurors who “had a familiarity with the location where this incident was alleged to have taken place,” while accepting three others, as part of over all strategy). The trial court was correct to reject the prosecutor’s explanation when it was offered.

Thus, we cannot agree with the trial court’s conclusion, made in hindsight and after “careful review,” that the Commonwealth “articulated [a]n ethnically neutral basis” for each challenge to which a timely objection was made. The record with respect to the prosecutor’s explanation for peremptorily excluding Vincent G., on its face, belies this contention. The fact that Susan B., a venireperson of Italian descent, lived in South Philadelphia, without more, says nothing about why she was more vulnerable to intimidation than others who were not of Italian descent.

Nor can we agree that any harm inherent in the prosecutor’s pattern of discriminatory exclusion is ameliorated by the fact that “the jury panel did include a juror of Italian descent and one alternate juror with an Italian surname.” Advancing an argument that members of an excluded group eventually found their way onto a jury panel is, at best, a relevant factor for a trial court to consider when faced with making a determination with respect to whether a prima facie case is made out. Jackson, 386 Pa.Super. at 47, 562 A.2d at 346-47. It is not sufficient to overcome the inference of discriminatory intent, once a prima facie case is established. The “improper exclusion of a single juror based upon race is sufficient to ‘taint’ the proceedings, and the number ... that remains to serve is irrelevant for purposes of legitimizing the selection process.” Dinwiddie, 529 Pa. at 72 n. 10, 601 A.2d at 1219 n. 10, citing Powers, 499 U.S. at 411-12, 111 S.Ct. at 1371, 113 L.Ed.2d at 426.

We are not unaware that the conclusion we reach in this case will be perceived to be an additional restriction on the right to exercise peremptory challenges, a practice only recently subject to judicial oversight. A peremptory challenge, properly used, is an extremely useful tool for a trial advocate who wishes to exclude a venireperson for reasons which the advocate sincerely, and perhaps inarticulately, believes will best serve the interests of his or her client. On the other hand, the right to exercise peremptory challenges, although deeply rooted in our history, is not a “constitutionally protected fundamental right; rather [it is] a state-created means to the constitutional end of an impartial jury and a fair trial.” J.E.B., — U.S. at — n. 7, 114 S.Ct. at 1426 n. 7, 128 L.Ed.2d at 102 n. 7, quoting Georgia v. McCollum, 505 U.S. 42, 57, 112 S.Ct. 2348, 2358, 120 L.Ed.2d 33, 50 (1992).

Our decision should not be viewed as a lowering of the standard of substantial deference to be afforded a trial court’s determination of whether purposeful discrimination exists. To the contrary, the primary responsibility for this essential finding of fact must remain with the trial judge, who is most able to pass on the credibility of the litigants, along with the race-neutrality of the litigants’ explanations for exercising peremptory challenges to exclude a suspect group, once a prima facie case of discriminatory intent is made out. It is the trial court’s responsibility to provide proper guidance to litigants with respect to the showing necessary for a prima facie case of discriminatory intent. Once a prima facie case is made out and the burden of production has shifted, it is the trial court’s responsibility to require correspondingly thorough and legitimate responses from the prosecution. In light of the explanations offered, and under the totality of the circumstances, it is then the trial court’s ultimate responsibility to determine whether a defendant may prevail in carrying his burden of proving that discriminatory intent is, in fact, purposeful discrimination. If these steps are followed, appellate review of alleged Batson violations will become less frequent and less painstakingly detailed. See Jackson, 386 Pa.Super. at 51-52, 562 A.2d at 349.

In this case, we concur with the trial court’s conclusion that a prima face case of discriminatory intent to exclude venirepersons of Italian descent existed. Once the trial court made this determination, we concur that it was proper to require the prosecutor to make a record of his reasons for exercising peremptory challenges against individuals of Italian descent.

The burden having shifted to the prosecutor to rebut the inference of intentional discrimination, he was then required to provide ethnically neutral reasons for each peremptory exclusion of a juror that was of apparent, or conceded, Italian descent. The failure of the prosecutor to advance an ethnically neutral reason for striking prospective juror Vincent G. is alone sufficient to find he failed to carry his burden of production, “and the resulting verdict was thereby ‘tainted.’ ” Dinwiddie, 529 Pa. at 72, 601 A.2d at 1219. When the prosecutor blatantly admitted that the ethnicity of this juror was a reason for his exclusion, it was clear error to permit the juror’s exclusion, or, in the alternative, not to grant defense’s motion to strike the panel.

To summarize, of the seven peremptory challenges exercised against venirepersons of apparent or conceded Italian descent, the record contains no explanation for three, and as to one, the proposed juror’s ethnic background was clearly stated as a reason for exclusion by the prosecutor. When the next juror of Italian descent was excluded for a facially neutral reason, i.e., her place of residence, while two proposed jurors who resided in the same area, but were not of Italian descent, were accepted, at the very least, the trial court erred in not conducting a “step-three” analysis to determine if the reason for the exclusion was, in fact, pretextual. This practice offended appellant’s right to a jury selection process free of discrimination, as well as the rights of the individuals, called upon to serve their community without regard to their ethnic heritage, who were excluded.

Judgment of sentence vacated. Case remanded for a new trial.

Jurisdiction relinquished.

      . Because we conclude that appellant is entitled to a new trial on his Batson claim, we need not reach the issue of prosecutorial misconduct. With respect to appellant’s multiple claims that the trial court erred in admitting inadmissible or prejudicial evidence at trial, a thorough review of the record and briefs submitted discloses no error. We adopt the reasoning of the trial court, as set forth in its opinion at pages 14-19.

      . One of the venirepersons allegedly subjected to the prosecutor’s discriminatory exclusion, Jane C., was in fact challenged by the defense. However, appellant also failed to include in his list a peremptory challenge exercised by the prosecutor to exclude venireperson Linda G. Appellant’s counsel made a Batson objection to this challenge on the record.

      . Although a matter of public record, the nature and content of several side-bar discussions held in this case lead us to conclude that the privacy interests of the venirepersons involved are best served by using initials rather than full last names.

      . In its opinion, the trial court conducts a post hoc evaluation of the record and concludes at page 13 that appellant failed "to establish a prima facie case of a Batson violation.” However, the appropriate time for a determination with respect to whether a prima facie case is established, as occurred here, is during voir dire when the defendant objects to the prosecutor’s challenges.

      . We note that appellee contends on appeal that despite the fact that reasons for striking the first venireperson, Cathy R., are not apparent on the face of the record, she was "apparently struck because of her youth, since all of the jurors selected were older.” We reject this attempt at speculative, post hoc justification de hors the record. See note 9, infra.

      . Because the issue in this case concerns the ethnicity of prospective jurors, we quote the prosecutor’s explanation for excluding this particular juror only for the purpose of demonstrating that it did not apparently involve his ethnicity.

      . Defense counsel immediately moved to strike the panel. The trial court denied the motion without discussion, and appellant proceeded to trial.

      . In Commonwealth v. Horne, 535 Pa. 406, 635 A.2d 1033 (1994), three justices of our Supreme Court concluded that once a prima facie case of discriminatory intent is established, the prosecutor must either advance a totally neutral reason for his peremptory challenges, or, if an exclusion would have a racially disparate effect, demonstrate how that particular juror entertains the alleged bias. Id., 535 Pa. at 411 n. 1, 635 A.2d at 1035 n. 1.

      . It would be the height of inconsistency to accord "substantial deference” to a trial court’s factual findings when they happen, post hoc, to concur with the Commonwealth's position, while ignoring factual findings made at the more relevant time, during voir diire. The fact is, the trial court disallowed the prosecutor’s justification for excluding Susan B. at the time the peremptory challenge was exercised. We fail to see how an explanation unequivocally rejected at the time offered, becomes ethnically neutral in hindsight, or "after careful review.” Absent evidence of clear error, and consistent with the appropriate standard of review, we defer to the trial court’s determination at the time it was made.

      . The United States Supreme Court, in a per curiam opinion, recently addressed the burden of proof required of a party alleging a Batson violation in Purkett v. Elem, —U.S. —, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Our resolution in the instant case is consistent with the Court’s determination that "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Id., — U.S. at —, 115 S.Ct. at 1771, 131 L.Ed.2d at —. In appellant's case, the prosecutor failed, after a prima facie case was made out, to satisfy the burden of production "of articulating a nondiscriminatory reason for the strike.” Id. The prosecutor, having advanced an explanation that was obviously not ethnically neutral, relieved the trial court of any need to proceed to step three, where an evaluation of facially neutral explanations for hidden pretext occurs.

      . Just as our review is hampered by the trial court's failure to require the prosecutor to proffer legitimate, ethnically neutral reasons for striking the first three venirepersons of apparent Italian descent, so is any argument appellee might advance to rebut the presumption of purposeful discrimination.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    662 A.2d 1084
    COMMONWEALTH of Pennsylvania, Appellant, v. William L. CLARK. COMMONWEALTH of Pennsylvania, Appellant, v. Michael BARRETT.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1995.
    Filed June 22, 1995.
    Reargument Denied Sept. 1, 1995.

      Mary B. Seiverling, Deputy Atty. Gen., Harrisburg, for Com., appellant.
    Stephen W. Furst, Bellefonte, for Clark, appellee.
    Joseph L. Amendola, State College, for Barrett, appellee.
    Before TAMILIA, HUDOCK and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

The Commonwealth appeals from the February 16, 1994 Order granting defendants’ motions to suppress evidence seized at appellees’ places of employment during a warrantless inspection of the premises and the subsequent execution of allegedly invalid warrants. The investigation and appellees’ arrest were the result of “whistleblowers’” allegations of wrong-doing provided to Pennsylvania Department of Health officials and the Office of the Pennsylvania Attorney General. A detailed recitation of the circumstances preceding appellees’ arrest, pivotal to the resolution of the issues before us, follows.

At the time of the alleged improper activity, appellee, William L. Clark, was President and Chief Executive Officer of and held an ownership interest in Central Pennsylvania Drug and Alcohol Services Corporation (CPDASC), t/d/b/a Talleyrand Retreat and Central Pennsylvania Individual and Family Counseling (CPIFC). Talleyrand was an in-patient drug and alcohol service provider, established pursuant to the terms of the Pennsylvania Drug and Alcohol Abuse Act, 71 P.S. §§ 1690.101 et seq., and was regulated by the Office of the Drug and Alcohol Programs (ODAP), Pennsylvania Department of Health. CPIFC provided out-patient drug and alcohol counseling. Appellee, Michael Barrett, was an employee of the Centre County Drug and Alcohol Program (Centre County), which utilized services provided by Talleyrand.

In July, 1991, an investigation was begun by ODAP into an alleged conspiracy by appellees to defraud the county of more than $27,000 for services charged to Centre County by Talleyrand but not provided. The investigation was initiated after former CPDASC employees Sandy Taylor, Pam Johnson and Mary Natoli, and a member of Centre County’s Drug and Alcohol Planning Council, Mary Watson, notified Ronald Young, a field representative of ODAP, of, inter alia, suspected improper billing activity at Talleyrand. The disgruntled employees also complained to the Pennsylvania Attorney General’s Office and were interviewed on July 23, 1991 by Special Agent Dan Boden. On August 3, 1991, the employees informed Young, for the first time, of the substance of the billing irregularities and also advised him they had notified the State Attorney General’s Office. Boden testified although the employees’ allegations of wrong-doing were varied, only possible criminal activities such as billing irregularities, supported by documentation provided by Johnson and Taylor, were of interest to the Attorney General.

After being advised the employees had contacted the Attorney General’s Office, Young contacted Boden, as a professional courtesy, and told him he was planning to conduct an unannounced inspection of Talleyrand the following week. Boden asked Young to delay his visit for a few days but made no request of Young to conduct his investigation in any manner other than the norm. On August 7, 1991, Young and another ODAP field representative made an unannounced visit to Talleyrand for the purpose of investigating complaints of noncompliance with confidentiality regulations, failure to follow personnel policies and fraudulent record keeping and billing practices. This inspection was conducted as authorized by 28 Pa.Code § 709.15, Right to enter and inspect. The Talleyrand client files inspected in furtherance of the investigation included one specifically identified by one of the employees, as well as 7 to 10 others selected at random. Young’s notes of this visit were not turned over to the Attorney General. Also on August 7, 1991, Young met with employee Johnson and secured copies of accounting documents she had removed from Talleyrand. Once again, none of this information was provided to the Attorney General. On August 20, 1991, a regularly scheduled visit of Talleyrand was conducted by ODAP field representative, William Foltz, who at Young’s request reviewed specific files to further his investigation into improper billing practices. On September 3, 1991, Young provided a copy of his finished report, with all clients’ names removed, to the Attorney General. Two days later, on September 5, 1991, ODAP informed Talleyrand of two areas of non-compliance, disciplinary actions and confidentiality, but took no further action with regard to any alleged improprieties, i.e. improper billing. This concluded ODAP’s administrative investigation of Talleyrand as prompted by the employees’ complaints.

In October, 1991, Boden and the Criminal Investigation and Prosecution section of the Office of the Attorney General received a copy of Young’s September 3rd report. Based in part upon the statements contained in Young’s report, as well as the information provided by the employee confidential informants, Boden obtained and executed, on December 18, 1991, a search warrant at the Centre County Drug and Alcohol Program.

On September 1, 1992, CPDASC sold Talleyrand to HUB Centre Inc. Clark, however, retained ownership of the real estate with HUB as a tenant. As part of this transaction, CPDASC turned over all Talleyrand client files with the understanding they would be retained for six years following any patient’s treatment, as required by law. In December, 1992, search warrants were obtained by the Attorney General’s Office and executed upon records of CPDASC and Talleyrand, now operating under the auspices of HUB. The affidavits of probable cause in support of the warrants were based on the employees’ information and, in part, on Young’s September 3, 1991 report.

As a consequence of the information secured via the initial administrative inspections at Talleyrand and the execution of the search warrants subsequently obtained, appellees were arrested and charged with tampering with public records or information and criminal conspiracy. Additionally, appellee Clark was charged with theft by deception. In granting appellees’ motion to suppress, the court reasoned unless Young’s search was clearly administrative, appellees were entitled to a reasonable expectation of privacy, necessitating the implementation of a warrant. In further support of its decision, the court characterized Young and his co-workers as agents of the state, whose investigation centered on criminal conduct from its inception.

The Commonwealth argues both the administrative, warrantless search and those subsequent searches conducted with the benefit of warrants were constitutional. Appellant contends the Department of Health employees acted properly in their capacity as administrative supervisors and as authorized by 28 Pa.Code § 709.15, investigating alleged wrong-doing by a Pennsylvania licensed drug and alcohol treatment services provider. The affidavits of probable cause to secure the warrants contained a detailed explanation of the information provided by the whistleblowers, and used that information obtained during the Department of Health’s investigation of Talleyrand only as supplemental support. Moreover, the Commonwealth argues, even if the purportedly tainted information provided by Young is excised from the affidavits of probable cause, sufficient probable cause still remained upon which to secure valid warrants.

In reviewing an Order granting a motion to suppress, we must first determine whether the suppression court’s factual findings and legal conclusions are supported by the record. Commonwealth v. Slaton, 530 Pa. 207, 608 A.2d 5 (1992); Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992), alloc. denied, 533 Pa. 598, 617 A.2d 1273 (1992). To determine whether the findings of fact are supported by the record, an appellate court must review only the evidence of the appellee and so much of the evidence of the appellant which, when read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093 (1993). If the factual findings are supported by the record, then we may reverse only for an error of law. Id.

We find the warrantless inspections made by Health Department employee Young and his co-workers were legitimate, investigative visits, statutorily authorized by 28 Pa.Code § 709.15. Accordingly, appellees enjoyed no expectation of privacy and no warrant was necessary. The Health Department’s purpose in conducting the unannounced visits, during August of 1991, was to investigate several employees’ allegations of noncompliance with confidentiality regulations, the facility’s failure to follow personnel policies, staffing problems, sexual harassment and fraudulent billing practices. Young’s purpose in conducting the initial unscheduled visit was specifically articulated to the individual in charge of Talleyrand on that particular day. Although admittedly the State Attorney General’s Office was aware of ODAP’s visits, it neither counseled Young as to how to proceed nor did it attempt to supervise or assume control of the Health Department’s investigation. The records reviewed by Young during the initial inspection, with the exception of one specific client identified by a confidential informant/employee, were selected at random and, only by chance, happened to support the employees’ allegations of overcharging. We particularly note with interest that after ODAP’s follow-up investigation, corrective administrative action was taken with regard to only two areas of Talleyrand’s noncompliance, neither of which related to the allegations of billing improprieties.

From our thorough review of the record, we find the warrantless search of the state regulated agency was statutorily authorized, clearly administrative, and legitimately conducted. Moreover, we also find there was no indication Young and his co-workers were acting as agents of the Pennsylvania State Attorney General, but rather as supervisors conducting an independent, administrative investigation. Having so found, it is unnecessary to address the law as set forth in Slaton, supra, and relied upon by the suppression court herein. (Officers were required to advise pharmacy owner/defendant of a change in the focus of a criminal investigation from a customer to him, and to obtain either owner’s informed consent or a warrant in order to search the premises.) Id.

Turning to the Attorney General’s investigation, we find, based on the totality of the circumstances test adopted by this Commonwealth, sufficient probable cause existed for the issuance of warrants pertaining to the Talleyrand investigation. See Commonwealth v. Murphy, 427 Pa.Super. 578, 629 A.2d 1020 (1993), appeal denied, 537 Pa. 648, 644 A.2d 734 (1994). The informants independently provided the Attorney General’s Office with allegations of wrong-doing supported, in part, by documentation. Young’s findings served merely to confirm or corroborate the employees’ charges. Moreover, for the sole purpose of argument, conceding the information provided by Young to be tainted, which we expressly do not so find, excising said information still leaves the Commonwealth with facts sufficient to support affidavits for probable cause for the issuance of the warrants. See Commonwealth v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341 (1990). We find the sworn facts contained in the affidavits of probable cause provided reasonable bases upon which to issue the search warrants requested.

Having found the record fails to support the decision of the suppression court, and having found further the searches conducted both with and without warrants to have been valid, there is no need to address the Commonwealth’s argument probing the appellees’ standing to challenge the inspections and searches at the provider facility and/or government agency.

After careful consideration of all written and oral arguments presented, we find the suppression court’s ruling granting appellees’ motion was not supported by the record. Accordingly, we vacate the suppression Order of February 16, 1994 and remand this matter to the trial court for proceedings consistent with this Opinion.

Order vacated; case remanded.

Jurisdiction relinquished.

      . Defendants’ motions to suppress were consolidated for the purpose of the preliminary hearing and this Court has, sua sponte, by per curiam Order dated May 18, 1994, consolidated the cases for appeal.

      . The record is unclear as to whether appellee Clark was physically present at the facility at the time of the inspection.


author: HESTER, Judge:

text:
    662 A.2d 1089
    Joseph LONG, Appellant v. NORRITON HYDRAULICS, INC., Globe Hoist Company, Dresser-Wayne, Individually and/or T/A Wayne Division, Dresser Industries, Inc., and/or T/A Globe Hoist Company.
    Superior Court of Pennsylvania.
    Argued March 14, 1995.
    Filed June 27, 1995.
    Reargument Denied Sept. 8, 1995.

      Frank A. Rothermel, Philadelphia, for appellant.
    Alan S. Gold, Elkins Park, for Norriton Hydraulics, appellee.
    Kevin Maginnis, Philadelphia, for Globe Hoist, appellee.
    Before HUDOCK, SAYLOR and HESTER, JJ.:
   HESTER, Judge:

We hold that the trial court improperly ruled that the plaintiff in this products liability action voluntarily proceeded to face a known and obvious risk in using the product thereby absolving the defendants from legal liability for his injuries. We therefore reverse the grant of summary judgment to defendants and remand for trial.

Appellant, Joseph Long, instituted this products liability action to recover for damages which he sustained when a hydraulic automotive lift suddenly shifted downward while he was working under the lift. To avoid being struck by the device, appellant moved quickly from under it, slipped on hydraulic fluid which had leaked from the lift’s cylinders, and sustained permanently disabling head and back injuries from the fall.

Defendants included the lift’s designer and manufacturer, Globe Hoist Company and Dresser-Wayne individually and t/a Wayne Division, Dresser Industries, Inc. and t/& Globe Hoist Company, and the lift’s seller and servicer, Norriton Hydraulics, Inc. After the close of discovery, the defendants, appellees, filed motions for summary judgment, arguing that since appellant was aware that the lift occasionally shifted downward, he assumed the risk of injury. The trial court agreed and granted summary judgment to appellees. This timely appeal followed.

Appellant’s deposition indicates the following. Appellant was an automotive mechanic employed by Purolator Courier (“Purolator”) on the date of the accident, July 22, 1985. He was thirty-eight years old and the father of four children. Appellant had been employed by Purolator for eight years repairing its fleet of courier trucks and vans and primarily worked the third shift from 11:00 p.m. to 7:30 a.m. In addition to performing this night shift work, appellant owned and operated an automotive repair shop in Philadelphia.

Norriton sold three lifts, including the one which injured appellant, to Purolator in 1980. Two were used to lift smaller, lighter trucks and vans, and the third was a heavy-duty lift which serviced heavier fleet vehicles. After installation, all three lifts started to leak hydraulic fluid at the base of the cylinders. Appellant described this leakage problem as constant. Appellant and his fellow mechanics would bring this to Purolator’s attention, and Purolator regularly called in Norriton to repair the lifts.

In addition to the leaking fluid problem, the two light-duty lifts sporadically and without warning, shift upward or downward. This happened “[q]uite a few times.” Deposition of Joseph P. Long, 1/23/89, at 41. Appellant described this problem as one where the lift would “jump” either up or down one to three inches and would make a banging sound. Id. Every time this happened to appellant, he reported it to his employer so that it would be repaired. The lift never had come down while he was under it, as it did on July 22, 1985. Appellant indicated that while the shifting happened frequently enough that he was on the “look out” for it, it never happened every day. Id. The majority of the time, the lift would jump immediately after the truck or van had been raised. The safety pins that were designed to stop the lift from shifting downward either had broken off or did not work. Id. at 55. Appellant testified that he continued to work with the lifts because they were necessary to the performance of his job.

On the night in question, appellant was working alone, drove a truck onto one of the light-duty lifts, and began to work underneath the truck. Approximately fifteen to thirty minutes later, the lift dropped. When appellant moved quickly to avoid being struck on the head with the truck, he slipped on hydraulic fluid, landing on his back and the back of his head. The lift made a banging sound similar to the sounds made when it shifted before, only the sound was louder. Id. at 136. This time, the lift dropped significantly more than one to three inches.

Appellant immediately was taken to the hospital by a Purolator dispatcher working in the office and was treated, prescribed codeine for pain, and released. However, that night and the next day, appellant was dazed, confused, and unable to remember how he was transported home. He immediately started to treat with physicians, who advised him that he no longer could lift heavy objects. He never returned to work at Purolator, was forced to sell his automotive repair business, and has experienced consistent pain and depression since the accident. He now occasionally drives a truck for a construction company when that work is available and he is able to work. He also does indoor painting with his brother.

Based on this evidence, the trial court granted summary judgment to appellees on the basis of assumption of the risk. The narrow issue before this court is whether summary judgment was granted properly. In two cases, our Supreme Court has affirmed a trial court’s determination that the plaintiff voluntarily proceeded in the face of a known risk and absolved the defendant from responsibility for the injuries sustained. Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993) (four justices concurring in this portion of holding); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). An incisive reading of those cases, including the portion of Howell commanding a majority, indicates the following. The question of whether the plaintiff has assumed the risk of his injuries should not be decided as a matter of law except where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving the defendant of responsibility for his injuries.

In Carrender, an invitee parked on the landowner’s parking lot on a sheet of ice even though the rest of the parking lot had been cleared of snow and ice. The invitee wore a prosthesis, became aware of the ice before exiting her car, and also was aware that maneuvering on ice was especially difficult for her. She slipped and fell on the ice when re-entering her car and instituted the action against the landowner. The Court indicated that a landowner owes no duty to an invitee who proceeds to face an obvious and avoidable dangerous condition of the land since, by his conduct, the invitee has agreed to accept the risk and to undertake to look out for himself. Similarly, in Howell, a licensee of the landowner was socializing with the landowner and asked to ignite a homemade fireworks cannon. He injured himself in the process.

Thus, in both cases, the plaintiffs proceeded voluntarily. The plaintiff in Carrender easily could have parked in a non-icy area. The plaintiff in Howell did not have to engage in the recreational activity of firing the cannon. Furthermore, the risks at issue in both cases were dangerous, known, and obvious. Ice always is slippery, and a person walking on ice always runs the risk of slipping and falling. Fireworks always explode, and a person always encounters a risk of injury from that explosion when he uses fireworks. See also Kotovsky v. Ski Liberty Operating Corp., 412 Pa.Super. 442, 603 A.2d 663 (1992) (when one voluntarily engages in the recreational sport of skiing which always carries an extremely high risk of falling, one voluntarily assumes the risk of injuries from a fall).

Thus, as Justices Flaherty and Cappy noted in Howell, the problems in resolving the assumption of the risk issue as a matter of law is in determining whether the plaintiff actually knew of the risk and whether his actions were voluntarily and deliberately taken. There was no question in either Howell and Carrender that this was the case.

The evidence here, however, was vastly different. First, there is a question as to whether the risk was faced voluntarily. Appellant used the lift where he worked and needed it to perform his job. Thus, there is a question of whether appellant had a choice in encountering the risk.

Second, there is a question of whether the risk was a known or obvious risk. The lifts shifted sporadically. Appellant complained immediately to his employer if he experienced any problems, and he knew that the lifts regularly were repaired. The majority of the time, the shifting occurred immediately after the lift was elevated, and appellant stated that he was on the look out or in other words, took care to avoid the problem. Appellant had been working on the lift fifteen to thirty minutes when the accident occurred. The lifts usually shifted only one to three inches. Appellant stated that the lift jumped almost a foot on the night in question. Appellant did indicate that the shifting problem occurred quite a few times. However, this was over the five years he worked with the lifts. Thus, while ice always is slippery and fireworks always explode, these devices did not always shift downward.

The trial court seemed to confuse two separate problems with the lifts. These are the leaking-fluid problem and the shifting problem. There is no question that appellant testified that the lifts constantly leaked fluid. However, this was not true of the shifting problem. Furthermore, there was no evidence linking the two defects, and in fact, the evidence indicates that they probably were not related. Appellant testified that all three lifts constantly leaked fluid, but only the two light-duty lifts had the shifting problem.

In light of the evidence presented, there is a question as to whether appellant voluntarily and knowingly assumed the risk of his injuries, and summary judgment improperly was granted.

Order reversed and case remanded.

      . Since this appeal involves the grant of summary judgment, these facts are based on a review of the record in the light most favorable to the appealing party.

      . As moving parties in this summary judgment proceeding, appellees properly relied solely upon appellant’s deposition in seeking summary judgment.

      . Appellant argues that assumption of the risk is not a viable defense in Pennsylvania. However, assumption of the risk is a viable defense according to four of our seven justices. See Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993) (four justices agreeing that the trial court properly granted a compulsory nonsuit to defendant based on voluntary assumption of the risk). Thus, this contention must be rejected.


author: McEWEN, Judge.

text:
    662 A.2d 1092
    HOMART DEVELOPMENT CO., Appellee, v. Thomas SGRENCI t/a TG’s Deli, Appellant.
    Superior Court of Pennsylvania.
    Argued May 10, 1995.
    Filed July 14, 1995.

      Karen L. Saraco, Langhorne, for appellant.

      Daniel J. Dugan, Philadelphia, for appellee.
    Before ROWLEY, P.J., and WIEAND, McEWEN, CIRILLO, DEL SOLE, KELLY, POPOVICH, FORD ELLIOTT and SAYLOR, JJ.
   McEWEN, Judge.

This appeal, taken from an order which dismissed the petitions to open a judgment for money as well as a judgment for possession, both confessed against appellant Thomas Sgrenci by appellee Homart Development Co., pursuant to the terms of a commercial lease, requires that we decide whether the trial court erred in concluding that appellant had not presented sufficient evidence to create a jury question as to whether the terms of the lease had been breached by appellee. Appellee, however, contends that, even if we find that sufficient credible evidence was produced to create a jury question, appellant is not entitled to any relief as his signature on the tenant estoppel certificate precludes any relief based upon conduct occurring prior to December of 1990. Our study compels the conclusion that both the money judgment entered for all future rents due under the ten-year lease and the judgment for possession of the leased premises must be opened so as to enable litigation of the issue of which party breached the lease, as well as a determination of the amount of damages resulting therefrom. We, therefore, reverse and remand.

Appellant became a commercial tenant of the Neshaminy Mall in December of 1985 pursuant to an assignment of a ten-year lease entered into in July of 1983 between Donuts Galore and the owner of the Neshaminy Mall. Thereafter, in 1989, appellant, who operated a donut shop in the 945 sq. ft. leased space, was approached by the management of the mall, and asked to consider becoming a part of a planned “Food Court”. Negotiations between the parties resulted in appellant terminating his prior lease and entering into a new 10-year lease on March 16, 1989, which provided, inter alia:

ARTICLE 1. BASIC LEASE PROVISIONS AND CERTAIN DEFINED TERMS
1.1 Date of Lease: March 16, 1989
1.2 “Landlord”: U.S. 1 AND BRISTOL ROAD ASSOCIATES
1.3 Address of Landlord:
c/o Strouse, Greenberg & Co., Inc.
1626 Locust Street
Philadelphia, Pennsylvania
29204
1.4 “Tenant”: THOMAS SGRENCI
1.6 Tenant’s Trade Name: “TG’S DELI”
1.7 “Demised Premises”: Food court space FC-9, consisting of approximately 730 square feet.
A delicatessen for the retail sale of the following items in prepared form for on and off premises consumption (i) the following sandwiches: corned beef; pastrami; beef brisket; roast beef, turkey; ham; swiss; tuna salad; chicken salad; egg salad; American cheese, seafood salad and Reuben; (ii) hoagies; (iii) the following cold platters: tuna salad; fruit and cottage cheese; (iv) the following hot platters: beef brisket; turkey breast; corned beef; hot pastrami; hot ham; and macaroni and cheese; (v) soups; and as incidental thereto the sale of the following in prepared form for on and off premises consumption: (a) the following side dishes: potato pancakes; cheese blintzes; cole slaw; potato salad; macaroni salad; french fries; onion rings; pasta salad; orange juice; sauerkraut and “vegetable of the day”; (b) the following breakfast items: muffins, bagels, danish and hard roll with butter or cheese; (c) the following nonalcoholic beverages: coffee; tea; lemonade; hot chocolate and plain carbonated sodas; and (3) the following desserts: cheesecake; donuts; danish; brownies; cookies; fudge and chocolate. Except for the items specifically set forth above, Tenant shall not sell any other foods or beverages. Without enlarging upon what Tenant may sell it is specifically understood that Tenant shall not sell: any form of hot dog except that Tenant may sell Kosher hot dogs only; sausage; chili; ice cream; yogurt; oriental food; pizza; Italian food; cinnamon buns; hamburgers; Med chicken; and fruit drinks other than lemonade; orange juice and soda such as grape or cherry soda, [emphasis supplied] Landlord agrees that so long as Tenant remains in good standing pursuant to the terms of this Lease and as long as the Food Court (as defined in Rider Section # 4) shall not be altered substantially in size or configuration, that it shall not lease any space in the Food Court to a “Delicatessen” or “Delicatessen Operation”. As used in the immediately preceding sentence, the terms “Delicatessen” or “Delicatessen Operation” shall be construed to mean an operation that specializes in the preparation and sale of cooked meats, salads and sandwiches which are typically offered in Jewish, Italian and other European type delicatessens.
* * * * * *
ARTICLE 26. REMEDIES
26.1
A. ....
B. Tenant agrees and it is hereby made a condition of this Lease that if Tenant shall fail or omit to pay rent, additional rent, or charges herein reserved as rent, on the days and at the place where the same are made payable (after written notice as hereinbefore provided), or if Tenant shall fail in the performance and/or observance of any of the other covenants, conditions, terms and agreements of this Lease, after written notice (for such defaults as require notice as hereinbefore provided); or if any other default shall occur____:
(1) This Lease shall at the option of the Landlord cease and determine, without any right on the part of Tenant to save the forfeiture by payment of the rent due or other performance of the conditions, terms, or covenants thus violated, and Landlord shall at once become entitled to receive from Tenant damages which shall be equal to the difference between the aggregate rentals reserved under the terms of this Lease for the balance of the term, less an adjustment for interest at the legal rate, and the fair rental value of the demised premises for that period determined as of the date of such termination.
(2) Without terminating the Lease, Landlord may re-enter and repossess the Demised Premised, breaking open locked doors, if necessary, and may use as much force as necessary to effect entrance without being liable to any action or prosecution for such entry or the manner thereof, nor shall Landlord be liable for the loss of any property upon the premises. Landlord may thereupon lease the Demised Premises to any other person upon such terms as Landlord shall deem reasonable entirely at Landlord’s discretion and for a term within or beyond the term of this Lease and Tenant shall remain liable for any loss in rent for the balance of the then current term together with any expenses or costs incurred by Landlord in re-renting the premises, such as the payment of commissions, the making of alterations, or otherwise.
>fc * j{: * * *
26.6 On the occurrence of any of the foregoing acts of default (and after notice as hereinbefore provided) Tenant agrees that the whole rent for the balance of the term and all other sums payable hereunder as rent for the balance of the term, or any part thereof at the option of the Landlord, shall immediately without act or further notice become due and payable as if by the terms of this Lease the same were payable in advance, and Landlord may immediately proceed to distrain, collect, or bring action for the said whole rent or such part thereof as aforesaid, as rent being in arrears, or may enter judgment therefor in an amicable action as herein elsewhere provided for in case of rent in arrears, or may file a proof of claim in any bankruptcy or insolvency proceedings for such rent, or Landlord may institute any other proceedings whether similar to the foregoing or not, to enforce payment thereof.
26.7 For the purpose hereof, the rent for the balance of the term as used herein shall be deemed to be the aggregate of the fixed annual minimum rent payable at the time of such default or breach by Tenant, plus the annual average of the percentage rent theretofore paid or payable by Tenant for the three (3) years last preceding such breach or default, or if three (3) years of the term hereof have not then elapsed, then the average of the annual percentage rent theretofore paid or payable by the Tenant.
26.8 In the event of any default by Tenant either in the payments of rent or any other charge herein reserved, or in the performance of any of the terms, conditions, promises and covenants herein set forth, either during the original term of this Lease, or any extension thereof, Tenant hereby empowers any Prothonotary or attorney of any Court of Record to appear for Tenant in any and all actions which may be brought for rent or the charges, payments, costs and expenses reserved as rent, or agreed to be paid by Tenant and/or to sign for Tenant an agreement for entering in any competent Court an amicable action or actions for the recovery of rent or other charges or expenses, and in said suits or in said amicable action or actions to confess judgment against Tenant for all or any part of the rent specified in this Lease and then unpaid including, at Landlord’s option, the rent for the entire unexpired balance of the term of this Lease, computed as aforesaid, and other charges, payments, cost and expense reserved as rent or agreed to be paid by Tenant, and for interest and costs together with an attorney’s commission of five (5) per cent. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time and as often as any of said rent or other charges reserved as rent shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term and/or during any extension or renewal of this Lease and after the expiration thereof at any time.
sK & * sk
26.10 In any amicable action of ejectment or for rent in arrears, Landlord shall first cause to be filed in such action an affidavit made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this Lease be filed in such action, it shall not be necessary to file the original as a warrant of attorney, any rule of Court, custom or practice to the contrary notwithstanding.
sK ‡ * *
26.12 All of the remedies hereinbefore given to Landlord and all rights and remedies given to Landlord by law, shall be cumulative and concurrent. No determination of this Lease or the taking or recovering of the Demised Premises shall deprive Landlord of any of its remedies or actions against Tenant for rent due at the time or which, under the terms hereof, would in the future become due as if there had been no determination, or for sums due at the time or which, under the terms hereof, would in the future become due as if there had been no determination, nor shall the bringing of any action for rent or breach of covenant, or the resort to any other remedy herein provided for the recovery of rent be construed as a waiver of the right to obtain possession of the premises.
ARTICLE 27. NO WAIVER
27.1 Failure of the Landlord to insist upon the strict performance of any provision or to exercise any option or any rules and regulations shall not be construed as a waiver for the future of any such provision, rule or option. The receipt by Landlord of rent with knowledge of the breach of any provision of this lease shall not be deemed a waiver of such breach. No provision of this lease shall be deemed to have been waived unless such waiver be in writing signed by the Landlord____

Appellee on August 31, 1992, confessed judgment against appellant in the amount of $261,822.90 which it computed as follows:

$ 14,455.14 Base rent and $2,538.35 in “other charges” for the period March 1, 1991, through July 1, 1992, although the “other charges”, as admitted in the answer of appellee to paragraph 5(J) of the petition to open judgment filed by appellant, had been paid.
$ 18,900.00 Accelerated rent from August 1, 1992, to March 31, 1993 at the rate of $2,362.50 per month.
$216,000.00 Accelerated rent from April 1, 1993, to March 31, 1999 at the rate of $3,000.00 per month.
$ 12,467.76 Attorneys fees.

Appellee also confessed judgment for possession of the premises.

Appellant in his petitions to open the judgments argued that he had not breached the lease but rather that appellee had breached the lease and rendered appellant’s performance impossible, by leasing an adjacent area of the food court to a vendor with an almost identical menu, Bagel Builders, in violation of the express terms of the lease and the understanding of the parties. Appellant alleged, inter alia, in his petition to open that:

Appellee had been properly notified of its breach of the terms of the lease;
Appellee had overcharged appellant on the “other charges” reserved as rent and had refused to provide an accounting of those charges;
The confessed judgment improperly included amounts already paid by appellant; and
Rents had been “wrongfully accelerated through the end of the lease term”.

The trial court found that appellee had not breached the lease agreement since “although certain tenants may be selling a few of the same items that appear on defendant’s menu, plaintiff has not leased any space to a delicatessen or a delicatessen operation. Nowhere in the ‘Permitted Use’ clause is [appellant] given the exclusive right to sell all the items enumerated. [Appellee] therefore has not breached the lease agreement.” (emphasis supplied). Since we find sufficient evidence to support a finding by a jury that appellant was granted the exclusive right to sell the enumerated delicatessen style food items and find that there was sufficient evidence to raise a jury question as to whether Bagel Builders was specializing in the sale of foods typically sold by a delicatessen, we must reverse and remand.

A petition to open a confessed judgment is an appeal to the equitable powers of the court. It is well settled that in order to obtain relief,

a party must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issues to a jury. Bell Federal Savings & Loan Ass’n of Bellevue v. Laura Lanes, Inc., 291 Pa.Super. 395, 435 A.2d 1285 (1981); Pa.R.Civ.P. 2959. Although at one time it was further required that a party establish equitable considerations sufficient to impress the court with the need for relief, it is now held that equitable considerations are no longer relevant unless related to a particular asserted defense. Bell Federal Savings & Loan Ass’n of Bellevue v. Laura Lanes, Inc., supra; Kardos v. Morris, 470 Pa. 337, 368 A.2d 657 (1977).

West Chester Plaza Assoc. v. The Chester Engineers, 319 Pa.Super. 196, 199, 465 A.2d 1297, 1298 (1983).

This court has made it clear on prior occasions that, in addition to the petition to open, it is proper to also consider depositions, Ecumenical Enterprises, Inc. v. NADCO Construction Company, 253 Pa.Super. 386 fn. 4, 385 A.2d 392 fn. 4 (1978); Kilgallen v. Kutna, 226 Pa.Super. 323, 310 A.2d 396 (1973), additional testimony, B.C.Y. Inc., Equipment Leasing v. Bukovich, 257 Pa.Super. 121, 390 A.2d 276 (1978), as well as supplemental memorandae, Silverman v. Polis, 230 Pa.Super. 366, 326 A.2d 452 (1974), in assessing a meritorious defense.

West Chester Plaza Assoc. v. The Chester Engineers, supra at 202, 465 A.2d at 1300, quoting Shainline v. Alberti Builders Inc., 266 Pa.Super. 129, 134 n. 1, 403 A.2d 577, 579 n. 1 (1979).

Appellant introduced substantial evidence in support of his assertion that he had been granted the exclusive right to sell the food items specifically enumerated in his lease and that appellee had breached those provisions of the lease by permitting Bagel Builders to offer identical sandwich selections for sale in direct competition with appellant. We are mindful that

[i]n construing a contract “each and every part of it must be taken into consideration and given effect, if possible, and the intention of the parties must be ascertained from the entire instrument.” Marcinak v. Southeastern Greene School Dist., 375 Pa.Super. 486, 491, 544 A.2d 1025, 1027 (1988). In order to ascertain the intention of the parties, “the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject-matter of the agreement.” International Organization Master, Mates and Pilots of America, Local No. 2 v. International Organiza tion Masters, Mates and Pilots of America, 497 Pa. 102, 109, 439 A.2d 621, 624 (1981) (quoting Foulke v. Miller, 381 Pa. 587, 593, 112 A.2d 124, 127 (1955)). The court will adopt an interpretation that is most reasonable and probable bearing in mind the objects which the parties intended to accomplish through the agreement. Metzger v. Clifford Realty Corporation, 327 Pa.Super. 377, 385, 476 A.2d 1, 5 (1984).

Wrenfield Homeowners Association v. DeYoung, 410 Pa.Super. 621, 627, 600 A.2d 960, 963 (1991).

The express terms of the lease at issue prohibit appellant from selling any food item not specifically listed, and appellant produced evidence to establish that when he introduced a salad bar to combat the competition from Bagel Builders, he was informed by appellee that salad could be sold only by the yogurt shop. Appellant testified that he had been approached in 1988 by an agent of Strouse Greenberg, the manager of the Mall, who asked appellant to consider terminating the lease which he had obtained by assignment in 1983 and becoming an operator of a food service in the proposed food court. Appellant testified that he was told that he could select the food service that he desired and choose a delicatessen. Appellant, in support of this testimony, produced a letter, dated September 15,1988, written in response to the proposed menu he had been required to submit, which provided inter alia:

By and large this menu looks fine. I would like to reserve judgment however until we have fine tuned some of the other lessees’ menus so that we minimize the possibility of overlap. The only areas that I could see we might have to modify at this time would be the dessert items as it is possible we would have a tenant specializing in the cooking and sale of brownies and cookies. I will keep you posted on this. I look forward to hearing from you in the near future. Appellant also produced the following letter from the

Strouse Greenberg agent, Ted DeSwart, dated February 8, 1989:

Dear Gene and Tommy:
Further to our discussion on the possibility of our giving you some protection under the terms of your lease against another delicatessen operator coming into the mall, I would be prepared to propose to the owners that they consider a language along the following lines.
“Landlord agrees that so long as Tenant remains in good standing under the terms of this lease and so long as the Food Court is not altered substantially in size or configuration, that it will not lease to another Delicatessen or Delicatessen-type operation in this Food Court.
For the purposes of this clause the term ‘Delicatessen Operations’ shall be construed to mean an operation specializing in the preparation and sale of cooked meats, salads and sandwiches as typically offered in Jewish, Italian or other European type Delicatessens.”
Please adjust this language to make yourselves feel comfortable and let me know what you think. I look forward to hearing from you.

Mr. DeSwart conceded in his deposition testimony that it had been necessary to induce appellant to participate in the proposed food court since:

... Mr. Sgrenci’s location where the donut shop was a key location in as much [as] it was on a corner which was critical to the layout of the food court____ He was one of the first people we approached with the concept, and as such gave him his choice of operation.

R.R. at 256a.

Although appellee argues that the lease only permits appellant to sell the enumerated food items and does not provide an exclusive right to sell those items, we believe that the language of the lease, especially when viewed in conjunction with the evidence of the response of appellee to the sale of salad by appellant, provides a sufficient basis to require submission of the issues to a jury. Thus, the petitions to open should have been granted.

Appellee, however, argues that even if there was sufficient evidence produced by appellant to require submission of the issues to a jury, the petitions to open should be dismissed since appellant is estopped from asserting the breach of the lease as a result of his execution of a tenant estoppel certificate in November of 1990.

The doctrine of equitable estoppel prevents one party from acting differently than the manner in which it induced another party to reasonably expect. Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 434-436, 457 A.2d 502, 503 (1983). The doctrine may be applied where the party asserting estoppel establishes by clear, precise and unequivocal evidence (1) that the party against whom the doctrine is sought to be asserted intentionally or negligently misrepresented a material fact, knowing or with reason to know that the other party would justifiably rely on the misrepresentation, (2) that the other party acted to his or her detriment by justifiably relying on the misrepresentation, and (3) that there was no duty of inquiry on the party seeking to assert estoppel. Foster v. Westmoreland Casualty Co., 145 Pa.Cmwlth. 638, 643-645, 604 A.2d 1131, 1134 (1992); Arasi v. Neema Medical Services, 407 Pa.Super. 393, 400-401, 595 A.2d 1205, 1209 (1991), allo. denied, 529 Pa. 655, 604 A.2d 247 (1992).

Mere argument or doubtful inference is insufficient to establish the critical element of changing one’s position to his or her detriment. Whiteco Metrocom v. Department of Transportation, 151 Pa.Cmwlth. 154, 616 A.2d 193 (1992), appeal denied, 533 Pa. 647, 622 A.2d 1379 (1993); Pennsylvania Liquor Control Board v. Venesky, 101 Pa.Cmwlth. 456, 516 A.2d 445 (1986), appeal denied, 515 Pa. 590, 527 A.2d 549 (1987). Moreover, equitable estoppel “is [a doctrine] of fundamental fairness, and whether it is applicable is dependent upon the particular facts of each case.” Central Dau phin Sch. Dist. v. Department of Education, 63 Pa.Cmwlth. 48, 55, 437 A.2d 527, 530 (1981).

Quinn v. Commonwealth, 168 Pa.Cmwlth. 447, 452, 650 A.2d 1182, 1184-1185 (1994).

Appellant testified that he did not understand the effect of the tenant estoppel certificate and signed it only as an accommodation to the Mall management which he believed was working to resolve his “menu overlap” problems in the fall of 1990, when he executed the certificate. Appellee has not alleged that it was unaware of the negotiations between Strouse Greenberg and appellant regarding menu overlap or that its lack of knowledge prejudiced it in any way. The issue of the effect of the certificate must, therefore, be resolved by the factfinder.

In light of our remand for proceedings on the respective claims of the parties, we find it necessary to address the existence of an independent basis requiring that appellant be granted relief from the money judgment confessed against him by appellee for accelerated rental payments.

It is a basic tenet of our system of civil justice that a plaintiff may not obtain a double recovery for a single wrong and yet that is precisely what the appellee proceeded to obtain via the two judgments entered by confession in this case. This Court, more than 60 years ago, in Greco v. Woodlawn Furniture Co., 99 Pa.Super. 290 (1930), condemned the precise practice which appellee followed in the instant case. The Greco Court held that a petition to open a judgment confessed upon a commercial lease containing an acceleration clause for calculation of damages was properly granted where the landlord had also confessed judgment for possession of the leased premises:

This case was rightly decided in the court below. It is ruled by Grakelow v. Kidder, 95 Pa.Super. 250. We there decided that where a landlord elects to terminate a lease and recover possession by writ of habere facias, following confession of judgment in an amicable action of ejectment, he cannot also enter judgment against the tenant for the rent for the balance of the term which accrued after the judgment in ejectment, but became sooner payable under an acceleration clause in the lease for default in payment of prior installments of rent. He cannot forfeit the lease, for default by the tenant, and recover possession, on the allegation that the lease is then and there ended, and at the same time enter judgment against the tenant for the rent accruing after the eviction as if the lease were in full force and effect to the end of the term. He cannot eject the tenant and yet hold him responsible for rent accruing under the lease after the tenant has been evicted. This ruling is in accord with earlier decisions of this court, (Pusey v. Sipps, 56 Pa.Super. 121; Hochman v. Kuebler, 53 Pa.Super. 481); and of the Supreme Court, (Stevenson v. Dersam, 275 Pa. 412 [119 A. 491]). The landlord may cumulate remedies provided in the lease (Purvis v. Dempsey, 238 Pa. 173 [85 A. 1091]; Murphy v. Marshell, 179 Pa. 516 [36 A. 294]), but he may not avail himself of double remedies insofar as they are conflicting or antagonistic. He can eject the tenant and at the same time enter judgment for the rent accrued when the tenant was evicted; Murphy v. Marshell, supra; but he cannot recover both the possession and the rent for the balance of the term: Grakelow v. Kidder, supra, p. 256. If the defendant had abandoned the premises a month or two previous, as is urged upon us by the appellant in this case, and the latter desired to hold it responsible for the rent accruing to the end of the term, she should not have declared the lease forfeited and terminated the tenant’s right of possession by judgment in ejectment and eviction under habere facias, but could have resumed possession in the interest of the tenant for the protection of the property, as pointed out in Hochman v. Kuebler, supra; Auer v. Penn, 99 Pa. 370; Ralph v. Deiley, 293 Pa. 90 [141 A. 640], and kindred cases; but any rent received by her thereafter on a re-letting would have been in relief of her claim against the tenant and for its benefit. The distinction must always be made “between possession of vacated premises taken by the landlord merely to protect the property or minimize the damages that would follow the tenant’s abandonment, and a possession which would be adverse to any resumption of occupation by the tenant and thus amount to an eviction”: Hochman v. Kuebler, supra, at 53 Pa.Super. 487.

Greco v. Woodlaum Furniture Co., supra, 99 Pa.Super. at 291-293 (emphasis supplied).

Six years later, this Court reiterated the principle that a landlord

can confess a judgment for future rent accruing under the acceleration clause, or a judgment in ejectment, but not both. Under the election he has made in this case, he can collect only the rent of $60 for the month of February, 1935.

Matovich v. Gradich, 123 Pa.Super. 355, 363, 187 A. 65, 69 (1936) (emphasis supplied).

Similarly, in Grakelow v. Kidder, 95 Pa.Super. 250 (1929), and Pierce v. Hoffstot, 211 Pa.Super. 380, 236 A.2d 828 (1967), this Court held that a landlord may not confess judgment for possession and confess judgment under an acceleration clause for all future rents which would have become due between the default and the end of the rental term. In Grakelow, supra, the Court explained:

Clearly, it would be unjust to permit the lessor to eject the lessee under the eighth clause and confess a judgment for future rent under the acceleration clause, if the apartment was rented to another tenant during all or any part of the eleven months in question. He cannot have both the possession and the rent of the apartment at the same time. Under all the circumstances we are satisfied that the money judgment was irregular and invalid and that the court below was justified in striking it off.

Grakelow, supra, 95 Pa.Super. at 256.

The principle for which these cases stand is not complex — a landlord must elect whether to confess judgment for possession and for all monies then due, or to confess judgment for all monies due for the entire term. When the judgment is entered for possession, the landlord is, of course, entitled to recover, as damages in a civil action, those losses which he suffers in attempting to relet the premises for the term of the lease. The lease in the instant case sets forth the proper calculation of those damages at Paragraph 26.1(B)(1). The landlord, however, cannot, as it did in the instant case, enter judgment for possession and for all moneys which would otherwise be due as rents through the end of the term.

Where a judgment is entered for items “clearly [authorized by] the judgment note, but excessive in amount, the court will modify the judgment and cause a proper judgment to be entered. If the judgment was entered for an amount which was grossly excessive, the judgment must be stricken in its entirety”. Dollar Bank v. Northwood Cheese Co., 431 Pa.Super. 541, 552, 637 A.2d 309, 314 (1994). Accord: Roche v. Rankin, 406 Pa. 92, 97-99, 176 A.2d 668, 672 (1962); Housing Mortgage Corp. v. Tower Development and Investment Corp., 402 Pa. 388, 389-390, 167 A.2d 146, 147 (1961).

The money judgment entered in the instant case was excessive as containing amounts allegedly due for “other charges” in the amount of $2538.35 which appellee admitted it had received. This error should have been corrected by the court in response to the petition to open. The judgment, however, also contained $234,900.00 in accelerated rental payments for the period of August of 1992 through March 31, 1999. The money judgment was, therefore, “entered for an amount which was grossly excessive”, in light of the entry of the judgment for possession, and is subject to a motion to strike. Appellant, however, did not file a motion to strike and, thus, has waived his right to this relief. See: Pa.R.Civ.P. 2959. The judgment should, however, have been opened, in response to the petition to open filed by appellant, so as to resolve the issue of the amount of the money judgment, where appellee had also confessed judgment for possession, even if the trial court believed that there was not sufficient evidence of a breach of the lease by appellee to warrant submission of that issue to a jury.

Orders reversed. Case remanded. Jurisdiction relinquished.

      . The issues, as framed in the brief submitted by appellant, are:
      a. Did Homart breach the lease because it violated Sgrenci’s exclusive right to sell delicatessen food items?
      b. Did Homart breach the lease because other vendors in the food court were operating “delicatessens" in violation of the lease?
      c. Were Sgrenci’s defenses based on principles of estoppel and waiver meritorious so as to require that judgment be opened?
      c. Would the parol evidence rule bar the introduction of Sgrenci’s meritorious defenses?

      . The record suggests that appellee is currently in possession of the leased premises pursuant to the confessed judgment for possession.

      . Appellant alleged in his answer to the complaint in confession of judgment that the following dealings occurred between the parties during 1988 and 1989:
      7. In or about 1988, plaintiff’s predecessor in title desired to alter the configuration of the stores within its shopping center so as to create a centralized "Food Court”.
      8. Plaintiffs’ predecessor in title approached defendant for the purpose of terminating the lease between plaintiff and defendant and incorporating defendant’s business in the Food Court.
      9. During the course of negotiations between plaintiff and defendant, plaintiff created certain revenue projections for defendant and based the defendant’s proposed monthly rental upon those projections.
      10. On March 16, 1989, defendant agreed to terminate his lease with landlord in exchange for certain considerations including the granting to plaintiff of the first option on "choice of location” within the newly created Food Court as well as first option of “menu” to be granted exclusively to defendant, all of which was incorporated into the lease executed on that same date.
      11. Defendant expended large sums of money in an effort to prepare the newly demised premises for its opening on June 9, 1989.
      12. Upon opening in June, 1989, defendant did meet or exceed his gross revenue projections for approximately three (3) months.
      13. In or about the fall of 1989, landlord began leasing other space within the newly created Food Court to entities serving menus in direct competition with defendant and in violation of the lease with defendant.
      14. As a result of the breach of the lease with defendant as aforesaid, defendant’s monthly revenues and receipts declined substantially. Between approximately September 1989 and March 1991, defendant continued to pay monthly rental payments in accordance with the lease agreement.
      15. Defendant believes and therefore avers that in November of 1991, plaintiff's predecessor transferred its interest in the shopping center known as the Neshaminy Mall to plaintiff.
      16. Plaintiff Homart Development Co. notified defendant of the restructuring and transfer and requested an estoppel certificate from defendant.
      17. In or about December 1991, defendant notified plaintiff of the breaches to the lease agreement as occasioned by plaintiff’s predecessor. Defendant refused to execute the estoppel certificate as requested by plaintiff.

        18. In March of 1991, with the agreement and acquiescence of plaintiff, defendant continued making lease payments to plaintiff at the rate of 6% of defendant’s gross monthly receipts.
      19. Defendant is in compliance with the covenants and conditions of the lease agreement with plaintiff.
      20. Plaintiff is not in compliance with the covenants and conditions of the lease agreement and has breached the lease agreement for the reasons aforesaid.

      , Appellee’s answer provided: "It is admitted that some or all of those items listed as additional rent and charges other than minimum rent may have been paid in part or in full at the time that the complaint in ■ confession of judgment was recorded on August 31, 1992.”

      . "Except for the items specifically set forth above tenant shall not sell any other foods or beverages.”

      . We will assume for purposes of ruling upon the motion that the yogurt shop was operating under a lease similar to that of appellant since appellee has not suggested otherwise.

      . The tenant estoppel certificate provided:
      The undersigned, Thomas Sgrenci (Tenant), is the tenant under that certain Lease dated as of March 16, 1989 (the “Lease”) by and between Tenant and U.S. 1 and Bristol Road Associates ("Landlord”) with respect to property located at Neshaminy Mall, Bensalem, Pennsylvania (the "Shopping Center”). Tenant hereby ratifies the Lease and certifies to Buyer, as purchaser of a portion of the Shopping Center of which the premises ... is a part ... as follows:
      i. The term of the Lease has commenced and Tenant has unconditionally accepted the Premises.
      ii. Tenant hereby attorns to Buyer as its lessor, to be effective and self-operative without execution of any further instrument upon the conveyance of the Premises from its owner to Buyer, and at such time, will be bound to Buyer under all of the terms, covenants and conditions of the Lease for the balance of the term thereof and any extensions or renewals with the same force and effect as if Buyer were the Landlord under the Lease.
      iii. The current monthly installment of minimum rent under the lease is $2,362.50, the payment of which has commenced. No advance rental or other payment has been made in connection with the Lease.
      iv. A security deposit of $0 is being held by Landlord in connection with the Lease.
      v. The Lease is a valid Lease, is in full force and effect, and represents the entire agreement between the parties. There is no existing default on the part of Landlord or Tenant in any of the terms and conditions thereof and no event has occurred which, with the passing of time or giving of notice, or both, would constitute an event of default. Tenant has no offsets or credits against rent due or payable under the Lease. The Lease has not been amended, modified, supplemented, extended, renewed or assigned except as follows: None.
      Tenant has received no notice of any assignment of the Lease by Landlord.
      Tenant has received no rent concessions or other inducements to execute the Lease other than as set forth in the Lease.
      The current term of the Lease expires on March 31, 1999. The Lease contains no options to extend or renew the term thereof, or to expand the Premises, except as follows: None. Tenant does not have any option or preferential right to purchase all or any portion of the Premises or the Shopping Center.
      Landlord has not rebated, reduced or waived any amounts due from Tenant under the Lease, either orally or in writing.
      There are no actions, voluntary or involuntary, pending against Tenant under the bankruptcy laws of the United States or any state thereof and, to Tenant's knowledge, none are contemplated.
      Tenant does not, has not and will not use or dispose of hazardous materials at the Shopping Center in violation of any environmental law, rule, regulation or ordinance at anytime applicable to the Shopping Center.
      Tenant understands that Buyer and its lenders, partners and assigns may and will rely upon this Estoppel Certificate with respect to the matters set forth herein in determining whether to proceed with its contemplated acquisition of a portion of the Shopping Center.