source: Caselaw Access Project

author: DEL SOLE, Judge: MONTGOMERY, Judge,

license: Public Domain

text:
    488 A.2d 474
    George R.H. ELDER v. Adam ORLUCK v. BOROUGH OF HARRISVILLE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1984.
    Filed Sept. 14, 1984.
    Reargument Denied Nov. 26, 1984.
    Petition for Allowance of Appeal Granted April 10, 1985.

      David B. Fawcett, Jr., Pittsburgh, for appellant.
    Richard B. Tucker, III, Pittsburgh, for Elder, appellee.
    Louis C. Long, Pittsburgh, for Orluck, appellee.
    Daniel M. Berger, Pittsburgh, Carol Nelson Shepard, Philadelphia, on the brief, for the Pennsylvania Trial Lawyers’ Association, amicus curiae.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   OPINION

DEL SOLE, Judge:

This appeal arises from an action instituted by George R.H. Elder (Elder) against Adam Orluck (Orluck) to recover for personal injuries suffered when the motor vehicle which he was driving was “rear-ended” by a motor vehicle driven by Orluck. The Appellant is the Borough of Harrisville (Harrisville) which was joined as an additional defendant by Orluck.

The motor vehicle accident in question occurred in the afternoon of Memorial Day, May 30, 1977 on Route 8, just outside the borough limits of Harrisville. Route 8 is a state highway which runs in a north-south direction through Harrisville. On the above day, Harrisville held its annual Memorial Day parade. Harrisville had secured permission from the Department of Transportation to close a portion of Route 8 located within the borough for approximately one hour in order to stage the parade. The record indicates that the permit was issued with the express condition that Harrisville would be responsible for “posting, policing, and maintenance of all highways and/or streets used as a detour so that no inconvenience would occur to the traveling public”. There was at least one state policeman present at the parade site, however the record reveals that the policeman only led the parade and did not actively participate in traffic control.

Immediately prior to the start of the parade, at approximately 1:30 p.m., the Harrisville police completely halted all southbound traffic on Route 8 at a point within the borough limits so that parade units could enter onto the parade route. The point of the traffic stoppage was just before the designated parade detour turn-off. Traffic was then allowed to proceed onto the detour route after the stoppage which lasted for about five to ten minutes. The record further reveals that the stoppage of traffic caused some back-up of traffic on Route 8 although there was some dispute over the extent of said back-up.

It was apparently a short time after the traffic stoppage that the accident in question occurred. While the testimony of the two drivers, Elder and Orluck, conflicts on the facts surrounding the accident, it was never denied that Orluck’s vehicle struck the rear-end of Elder’s vehicle. Elder testified that he was traveling southbound on Route 8 towards Harrisville on the day of the accident. He stated that as he neared a hill on Route 8 just outside the Harrisville borough limits, he observed a truck traveling directly in front of his vehicle begin to abnormally slow near the crest of the hill. Elder then testified that he also began to slow down as he neared the crest of the hill and that he was struck from behind by another motor vehicle as he had just cleared the crest of the hill. Soon after, Elder learned that it was Orluck’s vehicle that had struck his vehicle. Elder’s basic contention against Orluck at trial was that Orluck had been negligent in failing to operate his motor vehicle so as to stop it within an assured clear distance.

Orluck’s defense against Elder at trial was that the accident was in whole or at least in part due to the fact that the tail lights on Elder’s vehicle were inoperable at the time of the accident. Orluck differed with Elder as to the time that he believed the accident occurred on the day in question. Elder testified that the accident occurred in the early afternoon, a fact confirmed by the other witnesses at trial. Orluck believed that the accident had occurred in the late afternoon. In addition, Orluck could not recall seeing a woman who testified at trial that she was attempting to signal traffic to slow at the time of the accident. Elder testified that he had seen the woman immediately prior to the accident.

Both Elder and Orluck contended at trial that the complete stoppage of traffic by Harrisville on Route 8 created a dangerous condition for traffic, which was a concurrent cause of the accident. The two parties contended that the accident could have been avoided with proper traffic planning. They argued that it would have been entirely feasible to have the parade units enter onto Route 8 at a point beyond the detour turn-off which would have eliminated the need for a traffic stoppage and consequently eliminated the resulting traffic back-up. It was also argued that with or without the traffic stoppage, Harrisville should have warned motorists approaching the hill on Route 8 that a parade was taking place so that the motorists could exercise more care when entering the borough. Elder and Orluck argued that flares, signs or even a policeman could have been used in this regard.

Harrisville’s defense at trial was that the accident was caused solely through the negligence of one or both of the drivers and that its actions were not negligent. Alternatively, Harrisville argued that even if it had acted negligently its actions were not the legal cause of the accident.

The trial court submitted the case to the jury which returned a verdict for Elder in the amount of $250,000 and apportioned fault as follows: Elder — 25%, Orluck — 60%, and Harrisville — 15%. The trial court then molded the verdict based on the jury’s findings of comparative fault and later molded the verdict a second time to include delay damages. Harrisville then filed its own motion to mold the verdict to deny Elder any recovery from Harrisville on the grounds that Elder was found more negligent than Harrisville. The trial court denied that motion and also subsequently denied Harrisville’s motion for judgment notwithstanding the verdict and/or new trial. Judgment was entered on the verdict and Harrisville filed this timely appeal. Orluck did not appeal although he has filed a brief with this Court.

Harrisville advances the following arguments for reversal of the verdict below: 1) The trial court erred in denying Harrisville’s motion for compulsory nonsuit and directed verdict; 2) The trial court erred in not submitting Harris-ville’s crossclaim against Orluck to the jury; 3) The trial court erred in not charging the jury on superseding and intervening cause and active-passive negligence; 4) The trial court erred in advising the jury that Elder had been awarded payment of all his medical expenses in connection with the accident and $15,000 in work loss benefits; 5) The trial court erred in its charge on the assured clear distance and sudden emergency doctrines; 6) The trial court erred when it instructed the jury that Harrisville had the duty to regulate the traffic caused by the parade, as a matter of law; 7) The trial court erred in charging the jury on the issue of the aggravation of a pre-existing condition suffered by Elder; 8) The trial court erred in denying Harrisville’s point for charge on the duty of a driver to control his speed as he approaches the crest of a hill; and 9) Elder is barred from any recovery against Harrisville based on the language of the Pennsylvania Comparative Negligence Act (hereinafter “the Act”) because the Act prohibits a more negligent plaintiff from recovering against a less negligent defendant.

The first issue raised by Harrisville pertains to the alleged error of the trial court in its denial of the motions for compulsory nonsuit and directed verdict. Harrisville contends that the evidence fails to show that it was negligent in any way with regard to the accident in question and that a nonsuit or directed verdict should have been granted accordingly. In support, Harrisville cites the testimony of Elder and Orluck and concludes that it was not negligent because neither driver explicitly stated that the traffic back-up was a contributing factor to the accident. Our review of the entire record shows this argument to be meritless.

We begin by noting that the issue as framed by Harrisville is not a proper subject for disposition on appeal. It is well settled that the trial court’s failure to grant a compulsory nonsuit is not appealable. Churilla v. Barner, 269 Pa.Super. 100, 409 A.2d 83 (1979); Muchow v. Schaffner, 180 Pa.Super. 413, 119 A.2d 568 (1956). Similarly, we find that the trial court’s refusal of a point for binding instructions, or directed verdict, is also not appealable. What is appealable is the trial court’s order denying a motion for judgment notwithstanding the verdict. Although Harrisville has failed to focus its appellate argument in terms of the j.n.o.v. issue, we note that the trial court opinion treats the issue in the context of its denial of Harrisville’s motion for judgment notwithstanding the verdict. Accordingly, we will review Harrisville’s first argument as alleging error in the denial of its motion for judgment notwithstanding the verdict.

It is well settled that in reviewing the trial court’s denial of a motion for judgment notwithstanding the verdict, we must view the evidence in a light most favorable to the verdict winner, resolving all doubts in his favor and giving him the benefit of every reasonable inference arising from the evidence. Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983); McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991 (1982). It is also well settled that judgment notwithstanding the verdict may only be granted in a clear case when the facts are such that no two reasonable men could fail to agree that the verdict was improper. Walsh v. Pennsylvania Gas & Water Co., 303 Pa.Super. 52, 449 A.2d 573 (1982). Our review of the record in light of the above standards shows that the verdict was supported by ample evidence and thus the refusal of judgment notwithstanding the verdict was proper.

In its brief, Harrisville exclusively concentrates on the testimony of Elder and Orluck but ignores the testimony of other witnesses which shows there to be sufficient evidence for a jury to find that Harrisville was negligent and that its negligence was a concurrent cause of the accident. For example, there was testimony from a woman, whose residence is located near the crest of the hill in question, that she attempted to warn motorists approaching Harrisville on Route 8 of the slowdown in traffic. In addition, she testified that there were no signs or flares in the vicinity of the crest of the hill or any police officers to warn motorists that a parade was in progress. These facts were confirmed by the testimony of the Harrisville police chief and a Harrisville police officer. There is also testimony in the record regarding the stoppage of traffic and parade control. Taken as a whole, the testimony of all the witnesses, including Elder and Orluck, shows that a jury could reasonably find that Harrisville was negligent in failing to exercise ordinary care in regulating the parade traffic. Further, the testimony taken as a whole would also support a finding that Harrisville’s negligence was a contributing factor to the occurrence of the accident. We cannot say that such findings would be unreasonable in light of the record.

Harrisville’s second contention is that the trial court should not have refused to submit its crossclaim against Orluck to the jury. In its crossclaim, Harrisville claimed contribution or indemnity from Orluck. The record reveals that the trial court found that the jury would have been confused by the issues in the crossclaim and that there was no evidence to support a finding of indemnity in favor of Harrisville. The trial judge instructed the jury that Harris-ville was either solely negligent, concurrently negligent or not negligent. In its opinion, the trial court also noted that Harrisville still has the right to seek contribution from Orluck. We agree with th§ trial court.

The standard for a finding of indemnity in a negligence case can be found in the oft cited case of Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). Our Supreme Court held in McCabe that a person is entitled to indemnity if that person, without active fault on his part, has been compelled, by some legal obligation, to pay for damages occasioned by the active negligence of another. The Court found that this standard does not relate to degree of negligence but rather to the character of the wrong which gives rise to liability. Further, the McCabe Court noted that there can be no indemnity between joint or concurrent tortfeasors. Since Harrisville has not been denied its right of contribution, the issue becomes whether the record would support a finding that Harrisville’s liability was based solely on some legal obligation between it and Orluck. We hold that no such finding can or could be made.

The record is devoid of any evidence showing there to be any type of legal obligation between Harrisville and Orluck, and Harrisville has not expressly set forth any facts to support such a finding. The contention at trial was that Harrisville was actively negligent with regard to the accident and evidence was introduced in support of that argument. Harrisville presented its own evidence to counter that position. No evidence was ever offered by Harrisville which would have supported a finding of indemnity in its favor. The instant case is thus dissimilar to those cases in which indemnity has been permitted, See Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969); Builders Supply Co. v. McCabe, supra; O’Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 423 A.2d 1251 (1980). In all the above cited cases there was liability imposed on a party solely because of another’s active negligence and based on some legal obligation between the two parties. Such is not the case with Harrisville because its fault was based solely on its own actions in parade traffic control. Harrisville was not compelled to pay damages because of any legal relationship between it and Orluck. Thus, the trial judge was correct in not submitting the indemnity issue to the jury. The record shows that Harris-ville fully and vigorously defended against the allegations of its negligence.

Harrisville’s next argument is that the trial judge erred when he declined to charge the jury on the doctrines of superseding and intervening cause and active-passive negligence. This argument is also without merit. First, the record reveals that the attorney for Harrisville requested that the trial judge give an instruction on active-passive negligence. However, no specific point for charge was submitted by Harrisville on this issue. It is well settled that in order to preserve an issue for appellate review the complaining party must submit a specific point for charge or make a timely objection the charge as given. Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977). Thus, we decline to review the specific issue raised on active-passive negligence. Conversely, the issue on superseding and intervening causation was properly preserved for our review, however, we find that the trial court properly denied the specific points for charge requested by Harris-ville.

The record reveals that Harrisville submitted specific proposed points for charge on superseding and intervening cause. The trial court denied said points for charge finding that the charge as given to the jury on the substantial factor test for proximate cause was sufficient to cover the concept of superseding and intervening causation even though that specific concept was not expressly mentioned. The trial court reasoned that the question of superseding and intervening causation is essentially one of proximate cause and thus a proper charge on proximate cause would permit the jury to find superseding and intervening causation by the finding that the act of a defendant was not a substantial factor in-causing plaintiffs injuries. In addition, the court found that an additional specific charge on superseding and intervening cause would confuse the jury. We have reviewed the charge and found it to be accurate. We have also reviewed the extensive and thorough discussion of this issue in the trial court opinion and find that the court correctly disposes of this issue. Accordingly, this argument of Harrisville is dismissed.

Harrisville’s fifth issue concerns its contention that the trial court’s charge on the assured clear distance rule and the sudden emergency doctrine impermissibly mixed the two standards and thus was error. Harrisville argues that the record does not support a charge on the sudden emergency doctrine and that it was error to even mention the concept of emergency to the jury.

It is well settled that where the accuracy of a charge is at issue, an appellate court must look to the charge in its entirety against the background of the evidence to determine whether or not error was committed and whether that error was prejudicial to the complaining party. Berry v. Friday, 324 Pa.Super. 499, 472 A.2d 191 (1984); Slavish v. Ratajczak, 277 Pa.Super. 272, 419 A.2d 767 (1980). We must review the charge in this light.

In his charge to the jury, the trial judge properly instructed the panel on the assured clear distance rule citing section 3361 of the Pennsylvania Motor Vehicle Code, 75 Pa.C.S. § 3361, at which the rule is codified. Section 3361 provides that a driver must operate his vehicle so as to stop within an assured clear distance ahead. That section also provides that a driver shall operate his vehicle at a safe and appropriate speed when approaching a hill crest. This Court has recognized that the above cited rule is one of speed. Turner v. Smith, 237 Pa.Super. 161, 346 A.2d 806 (1975).

However, the record reveals that the trial court also instructed the jury that a driver would not be negligent for stopping within an assured clear distance if confronted with an emergency. In this regard, the trial judge stated that the assured clear distance rule has no application when things suddenly dart out in front of a driver. It was the introduction of this concept that Harrisville claims was error.

The sudden emergency doctrine is a defense available in a negligence action to a driver of a motor vehicle who suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately. Chiodo v. Gargloff & Downham Trucking Co., 308 Pa.Super. 498, 454 A.2d 645 (1983); Carpenter v. Penn Central Transportation Co., 269 Pa.Super. 9, 409 A.2d 37 (1979). The case law in this Commonwealth indicates that the sudden emergency doctrine and the assured clear distance rule are mutually exclusive points of law and that in a given factual situation it is error to charge on both doctrines. Sullivan v. Wolson, 262 Pa.Super. 397, 396 A.2d 1230 (1979); Brown v. Schriver, 254 Pa.Super. 468, 386 A.2d 45 (1978). This is based on the rationale that the assured clear distance rule applies to essentially static or static objects, including vehicles moving in the same direction, while the sudden emergency doctrine applies only to moving instrumentalities thrust into a driver’s path of travel. Brown v. Schriver, supra. However, there is case law for the proposition that it is proper for the court to charge on both points of law if the facts do not conclusively establish the existence of a sudden emergency situation. Potenburg v. Varner, 284 Pa.Super. 19, 424 A.2d 1370 (1981).

A reading of the charge reveals that while the trial court did not use the exact term “sudden emergency”, it is evident that the essence of the doctrine was conveyed to the jury. To this extent we find that the trial court should not have mentioned the concept of emergency because there is no evidence in the record to support a finding of such. Orluck’s defense at trial was not that he was confronted with an object darting in front of his vehicle, but rather that Elder’s tail lights were inoperable. Thus, the record fails to show a need for a charge on the sudden emergency doctrine.

Despite this error by the trial court we are unable to find and Harrisville has failed to show, any specific prejudice resulting from the charge in question. Harrisville’s allegations of prejudice are merely conclusory and Harris-ville has failed to cite any portion of the record proving the existence of such. In addition, a review of the actual jury verdict reveals that the jury did not consider or reject the concept of emergency because Orluck was found to be more negligent than Elder and Harrisville combined. Thus, to the extent the sudden emergency doctrine was mentioned it was error, but not error requiring a new trial.

The next issue raised by Harrisville is that the trial court erred in charging the jury that Harrisville had the duty of regulating the parade traffic independent of any permit from the State and irrespective of the borough limits. We cannot reach this issue since again Harrisville has failed to properly preserve the issue for appellate review. The record reveals that the attorneys for Harris-ville did not specifically object to the charge as given nor was any specific point for charge submitted. The issue is thus waived on appeal.

The eighth issue raised by Harrisville concerns the trial judge’s charge on a potential aggravation of a pre-existing back condition suffered by Elder. Harrisville contends that the charge was improper since there was no evidence in the record to support such an instruction. We reject this argument because a reading of the portion of the charge in question reveals that the trial judge merely reviewed the evidence and arguments presented by Elder and Harrisville on the aggravation issue. In fact, the trial judge specifically noted that it was Harrisville which had argued that Elder’s injuries would have eventually occurred despite the accident due to natural degenerative condition of diseased vertebrae in the cervical region of the spine. Elder also testified that he had had some lower back problems before the accident but that the injuries complained of were unrelated to his pre-existing condition. A close reading of the charge indicates that it was actually favorable to Harrisville because the trial court told the jury that it need not award damages to Elder for his cervical injuries if it found that the injuries would have occurred anyway because of the degenerative condition alleged by Harrisville. There was nothing in the charge that could be construed as prejudicial to Harrisville because the trial judge merely reviewed the evidence and arguments of the parties. In addition, Harrisville cannot now complain since it raised the issue at trial.

Harrisville next contends that the trial court erroneously denied its charge on the duty of a driver to control his speed as he approaches the crest of a hill. This argument is meritless because the record shows that the trial judge’s charge fully and adequately covered the substance of the requested charge. The trial judge instructed the jury that a driver of a motor vehicle shall drive at a safe and appropriate speed when approaching the crest of a hill. A review of Harrisville’s requested points reveals that they are essentially similar to the actual charge. It is well settled that a trial judge may refuse a requested point for charge when the substance of the instruction was contained in his charge to the jury. Perigo v. Deegan, 288 Pa.Super. 93, 431 A.2d 303 (1981). We find such to be the case with the above issue and thus it was not error for the trial court to deny the requested points for charge.

Having disposed of Harrisville’s other issues, we now reach the issue raised in this appeal concerning the interpretation of the Pennsylvania Comparative Negligence Act (the Act), 42 Pa.C.S. § 7102. Harrisville contends that in a multiple defendant case, the Act bars recovery by a plaintiff from a defendant found proportionally less negligent than the plaintiff even if the plaintiffs negligence is not greater than the combined negligence of all the defendants. Accordingly, Harrisville argues that Elder should be denied any recovery against it because it was found only 15% negligent whereas Elder was found to be 25% negligent despite the fact that the combined negligence of Harrisville and Orluck was 75%. Conversely, Elder argues, as does amicus curiae Pennsylvania Trial Lawyers Association (PaTLA), the Act only bars a plaintiff from recovery in any negligence case if his negligence is greater than the combined negligence of all the defendants. Elder thus contends that he can recover the full amount of the allowed damages from Harrisville because his negligence was not greater than the combined negligence of Harrisville and Orluck. This issue is one of first impression in the appellate courts of this Commonwealth.

Our discussion must begin with the text of the Act which is as follows:

(a) General Rule. In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
(b) Recovery against joint defendant; contribution. Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount from any defendant against whom the plaintiff is not barred from any recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

42 Pa.C.S. § 7102.

The parties have asked this Court to interpret the above language and thus we look to the statutory provisions on the interpretation of statutes. The rules of statutory interpretations are set forth at 1 Pa.C.S. §§ 1921-1939. The section most relevant to our inquiry is section 1921 which provides:

§ 1921. Legislative intent controls.
(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
(c) When the words of a statute are not explicit, the intention of the General Assembly may be ascertained by considering among other matters:
1. The occasion and necessity for the statute.
2. The circumstances under which it was enacted.
3. The mischief to be remedied.
4. The object to be attained.
5. The former law, if any, including statutes upon the same or similar objects.
6. The consequences of a particular interpretation.
7. The contemporaneous legislative history.
8. Legislative and administrative interpretations of such statute.

1 Pa.C.S. § 1921. We will review the Act within the above framework.

A close reading of the Act shows that it does not explicitly provide that in a multiple defendant case the negligence of the plaintiff must be compared to each individual defendant or if plaintiffs negligence is to be compared to the combined or aggregate negligence to determine if plaintiff is barred from recovery. What the Act does provide is that the plaintiffs negligence will not bar his recovery “where the negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought”. The issue then becomes whether the Act’s language can be clearly and unambiguously read to either interpretation presented by the parties in this appeal.

Harrisville argues in favor of the “individual” approach contending that the phrase “defendant or defendants” was merely a recognition by the legislature that cases frequently involve more than one defendant. Harrisville argues that the proper interpretation of the Act is found by reference to section (b). Harrisville asserts that the legislature intended to create a clear distinction in section (b) between defendants “against whom recovery is allowed” and those defendants “against whom plaintiff is barred from recovery”. Harrisville argues that the latter phrase was placed in the Act to encompass the classes of defendants against whom plaintiff could not recover, primarily those defendants found less negligent than plaintiff. To hold otherwise, Harrisville contends, would render that language meaningless because there is no other significant class of defendant to which it is applicable. Harrisville concludes that this language clearly indicates that a defendant found less negligent than the plaintiff in a multiple defendant case cannot be compelled to pay damages to the plaintiff even if the plaintiff's negligence was not greater than that of all the defendants.

Elder and PaTLA contend that the Act clearly contemplates the use of the “combined” or “aggregate” approach in multiple defendant cases and that a plaintiff can still recover from a proportionally less negligent defendant so long as the plaintiff’s negligence does not exceed the combined negligence of all the defendants. Elder and PaTLA contend that the use of the plural by the legislature in the phrase “where the negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought” clearly supports the “combined” approach. In response to Harrisville’s argument on section (b) of the Act, Elder and PaTLA argue that there were classes of defendants when the Act was enacted against whom plaintiff was barred from recovery which have since been abolished. One example cited is interspousal immunity which was abolished in Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981). They also contend that the most simple interpretation to be placed on the language relied upon by Harrisville is that it applies to those defendants from whom plaintiff seeks recovery but are found not negligent. Elder and PaTLA conclude that there is nothing in the Act to clearly show that the legislature intended to bar a plaintiff’s recovery from a proportionally less negligent defendant in a multiple defendant case when the plaintiff’s negligence was not greater than the combined negligence of all the defendants. Rather, they conclude that the Act clearly favors the “combined” approach.

As we have noted, our Act is not explicit on whether the “individual” or “combined” approach is to be used unlike other jurisdictions which have expressly adopted the combined approach. See Conn. Gen. Stats. Ann. § 52-572h; Mass. Gen. Laws Ann. Ch. 231 § 85; Nev. Rev. Stats. § 41.141; Ore. Rev. Stat. 18.470; Tex. Rev. Civ. Stats. Article 2212a; Hawaii Rev.Stat. § 663-31 (1975 Supp.). Since our review of the language of the Act shows it not to be clear and unambiguous as to the legislature’s intent, we must look to other sources to discover the intent of the General Assembly.

Harrisville’s alternative argument is that if the Act is ambiguous then intent of the legislature can be clearly seen as favoring the “individual” approach through reference to the Act’s legislative history and other jurisdictions with statutes similar to our Act which have adopted the “individual” approach. Specifically, Harrisville cites to the remarks of the Act’s sponsor, the portion which seems to indicate that the Act was based on the Wisconsin comparative negligence statute, Wis. Stats. Ann. § 895.045. Harrisville contends these remarks are significant in light of case law in Wisconsin which has interpreted the Wisconsin act in favor of the “individual” approach. Harrisville also cites the comparative negligence statutes of other jurisdictions as similar to our Act that have been interpreted in favor of the “individual” approach.

Elder and PaTLA argue that if the Act is ambiguous, then we must interpret the Act in favor of the “combined” approach based on the objectives and purposes of the Act and based interpretations of the comparative negligence statutes of other jurisdictions which are more similar to our Act than the statutes cited by Harrisville and which adopt the “combined” approach over the “individual” approach. Specifically, they cite two jurisdictions as similar to Pennsylvania, Kansas, and Arkansas, because they use the plural whereas the statutes cited by Harrisville all use the singular. This distinction is crucial, argue Elder and PaT-LA, because it indicates the legislature’s intent when it uses the plural that a plaintiff’s negligence must be compared to the combined negligence of all defendants in a multiple defendant case. Elder and PaTLA dismiss the legislative history cited by Harrisville as merely being an indication that Pennsylvania was adopting the same “type” of comparative negligence act and not that Pennsylvania was adopting every interpretation of the Wisconsin statute.

Our review of the legislative history cited by Harrisville does not persuade us that our legislature intended to adopt the Wisconsin act in toto together with all the judicial interpretations thereof. Indeed, the fact that the language of the two acts is not the same leads us to conclude that there must have been some reason for the differences. There is simply not enough legislative history behind our Act for us to conclude that our legislature intended to accept the “individual” approach or the “combined” approach. Indeed, this lack of legislative history behind the Act has already been noted by this Court in Heckendorn v. Consolidated Rail Corp., 293 Pa.Super. 474, 439 A.2d 674 (1981), in which we held that in an action by an employee against a third-party tortfesor, the employer could not be joined as an additional defendant for purposes of apportioning negligence under the Act. Despite this lack of legislative history, our review below will show that the legislature could not possibly have intended to adopt the Wisconsin or “individual” approach.

Before proceeding further, we note that there exist four basic “types” of comparative negligence statutes: 1) pure; 2) not greater than; 3) less than; and 4) slight-gross. See Pinto, Comparative Responsibility — An Idea Whose Time Has Come, 45 Ins. Counsel J. 115, 120-121 (Jan. 1978). We do not intend here to review the relative characteristics and merits of each type of statute. It is sufficient to note that the particular issue in this case would only arise under a type 2 or type 3 statute, and the statutes cited by the parties fall into these two types. Our act is a type 2 statute, that is the plaintiff’s negligence must not be greater than the negligence of the defendant or defendants for plaintiff to recover. Elder and PaTLA have cited some type 3 statutes in support of their position and Harrisville argues that we should not consider such statutes and judicial interpretations thereof because they are a different “type” of statute. We summarily dismiss this argument because there is essentially no difference between the two types as far as determining when a plaintiff’s recovery is barred by his contributory negligence. In the type 2 statute, a plaintiff can be up to 50% negligent and still recover, whereas under the type 3 statute, a plaintiff can only be a maximum of 49% negligent and still recover. The one percent difference is not crucial in our view to the issue presented in this case. What is crucial in our view is the language employed by a particular statute and the judicial interpretation of said statute. Thus, our analysis will center on the language of the particular statute and not its “type”.

The main jurisdiction cited by Harrisville in support of its position is Wisconsin. The Wisconsin comparative negligence statute provides:

§ 895.045. Contributory Negligence. Contributory Negligence shall not bar recovery in an action by any person or his legal representative to recover damages resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.

Wis. Stat. § 895.045.

The issue of the “individual” v. “combined” approaches first arose in Wisconsin in Walker v. Kroger Grocery and Baking Co., 214 Wis. 519, 252 N.W. 721 (1934), in which the Wisconsin Supreme Court concluded that the language of the statute must be interpreted to mean that a plaintiff could only recover from a defendant if the plaintiff was not more negligent than that particular defendant regardless of the total negligence of all the defendants. In Schwenn v. Loraine Hotel Co., 14 Wis.2d 601, 111 N.W.2d 495 (1961), the Wisconsin Supreme Court reaffirmed Walker and concluded that it did not believe the legislature intended that a more negligent plaintiff could recover from a less negligent defendant even if the plaintiffs negligence was not greater than the combined negligence of all the defendants in a multiple defendant case. Later Wisconsin cases have followed the “individual” approach, although as will be seen the view is not unanimous on the Wisconsin Court.

Other states have followed the Wisconsin approach, such as Minnesota. In Marier v. Memorial Rescue Service, Inc., 296 Minn. 242, 207 N.W.2d 706 (1973) the Minnesota Supreme Court adopted the individual approach noting that its own statute was taken verbatim from the Wisconsin act and that in such cases the Minnesota courts adopt the judicial interpretations of the state from which the statute was taken. No other reason was cited by the Minnesota Court for its adoption of the “individual” approach. Harrisville also cites the statutes of Vermont and New Jersey which have been interpreted in Stannard v. Harris, 135 Vt. 544, 380 A.2d 101 (1977); and Van Horn v. William Blanchard Co., 173 N.J.Super. 280, 414 A.2d 265 (1980), respectively, in favor of the “individual” approach in support of its position.

We have already noted that the reference to Wisconsin in the legislative history of the Act hardly gives us crystal clear guidance in our interpretation of the Act. In addition, a close reading of the Wisconsin act and the other acts cited by Harrisville shows that they differ from our Act in one crucial respect. The statutes cited by Harrisville are all similar in that they refer only to the singular “person” or “defendant” in the clause of the statute which delineates when the plaintiff’s negligence will bar his recovery. The Wisconsin, Minnesota, and New Jersey comparative negligence statutes all state that the plaintiffs contributory negligence will not bar recovery “if such negligence was not greater than the negligence of the person against whom recovery is sought”. The Vermont statute cited by Harris-ville provides for a similar result as long as the plaintiff’s negligence was “not greater than the causal negligence of the defendant”. The use of the singular in the above acts differs from the wording of our Act which allows recovery by a plaintiff so long as his negligence was “not greater than causal negligence of the defendant or defendants against whom recovery is sought”. We cannot lightly dismiss this difference as Harrisville attempts to do when it argues that the inclusion of the plural was merely a recognition by our legislature that cases often involve multiple defendants. To hold with Harrisville would render meaningless the inclusion of the plural of “defendant” especially when not all statutes include the plural. We cannot assume that the legislature intended to include excess or meaningless words in the Act. Thus, we must look to those jurisdictions which include the plural in their act for guidance on the interpretation of our Act.

One state that employs the plural is Kansas. The Kansas comparative negligence statute provides that a plaintiff can recover so long as his negligence is less than “the party or parties against whom the claim is made”. Kans. Stats. Ann. § 60-258a. The Kansas Supreme Court has held that the inclusion of the plural requires that in a multiple defendant case the negligence of the plaintiff must be compared to the combined negligence of all the defendants. See Negley v. Massey Ferguson, Inc., 229 Kan. 465, 625 P.2d 472 (1981). Another state which has adopted the “combined” approach is Arkansas, despite that fact that there was originally no plural in the Arkansas comparative negligence statute. See Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962); Riddell v. Little, 253 Ark. 686, 488 S.W.2d 34 (1972). The Arkansas statute was later amended to include the plural and the statute now provides that “if the fault chargeable to a party claiming damages is equal to or greater in degree than any fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claiming party is not entitled to recover damages”. Ark. Stats. Ann. §§ 27-1763 to 27-1765 (supplement). Thus, the Arkansas legislature apparently codified what had already been the law in its state.

The legislative intent that the plural of “defendant” or some similar term should be interpreted in favor of the combined approach is best seen in the example of Vermont following the Vermont Supreme Court’s decision in Stannard v. Harris, supra. The statute interpreted by the Stannard court in favor of the “individual” approach made reference to only the singular term “defendant”. Shortly after the Stannard decision, the Vermont legislature amended its statute to include the plural so that now a plaintiff can recover if his negligence was “not greater than the causal total negligence of the defendant or defendants”. Vt. Stat. Ann., Tit. 12, § 1036. The Vermont legislature, by inclusion of the plural and the word “total”, appears to have definitely adopted the combined approach. Indeed, its statute is now similar to those cited above by this Court as explicitly adopting the “combined” approach.

Thus, our review of the comparative negligence statutes and judicial interpretations thereof reveals that the Wisconsin or “individual” approach has only been adopted in those states whose comparative negligence statute contains only the singular of “party” or “defendant” in their acts. Every state that employs the plural in its act, as well as some states that employ the singular, have adopted the “combined” approach. The fact that the “combined” approach should be the law in Pennsylvania is also clearly seen in the light of the policy reasons for the enactment of the statute.

An examination of the objectives and purposes of our Act and comparative negligence acts in general shows the “combined” approach, and not the “individual” approach, to be more in keeping with those goals. In all the Wisconsin cases which have adopted the “individual” approach there are offered few, if any, policy reasons for such an interpretation. The main reason appears to be the belief that the Wisconsin legislature could not have intended that a more negligent plaintiff could ever recover from a less negligent defendant. See Schwenn v. Loraine Hotel Co., supra. Indeed, some members of the Wisconsin Supreme Court have recently criticized its longstanding interpretation of its act to be unfair to plaintiffs and the cause of inequitable results that the comparative negligence act was meant to remedy. See May v. Skelley Oil Co., 83 Wis.2d 30, 264 N.W.2d 574 (1978); Gross v. Midwest Speedways, Inc., 81 Wis.2d 129, 146-148, 260 N.W.2d 36 (1977) (Abrahamson, J. dissenting). However, that court has apparently decided to leave any change to the legislature. See Reiter v. Dyken, 95 Wis.2d 461, 290 N.W.2d 510 (1980).

Harrisville’s main policy argument in favor of the “individual” approach is that the “combined” approach causes an inequitable result in cases where a minimally negligent defendant is forced to pay the entire amount of the allowed recovery and is unable to secure total contribution because the other tortfeasors are insolvent or have minimal insurance coverage. This is the position that Harrisville contends it has been put in in the instant case because it apparently has little hope of recovering the full amount of contribution from Orluck. The Arkansas Supreme Court eloquently rejected this argument over twenty years ago in Walton v. Tull, when it stated:

We realize that where some tortfeasors are insolvent or unavailable, our conclusion may require a single defendant to bear the entire burden of the verdict. But this possibility of disportionate liability always exists when some of the wrongdoers cannot be made to pay their fair share. At common law, if the plaintiff was free from contributory negligence, he could recover his entire damages from any defendant whose negligence, however slight, was a concurring proximate cause of his injuries. We cannot adopt a narrow construction of our comparative negligence statute in the vain hope of avoiding inequitable situations due to insolvency. Obviously, either the plaintiff or the solvent defendant must suffer, and the loss has traditionally fallen on the wrongdoer.

234 Ark. at 893-94, 356 S.W.2d at 26.

The adoption of the “individual” approach would penalize a plaintiff who attempts to recover from as many defendants as possible because it is possible for a plaintiff to be only slightly negligent and be completely barred from recovery. Take for example a negligence case with one plaintiff and ten defendants. In the case, the jury finds the plaintiff to be only 10% negligent and all ten defendants to be a total of 90% negligent. However, the jury also finds that each defendant is equally negligent in the amount of 9% each. Under the approach advocated by Harrisville, the plaintiffs negligence must be compared to the negligence of each individual defendant, and the plaintiff could not recover from anyone because his individual negligence was greater than the individual negligence of any single defendant. We cannot believe that our legislature intended such a result to occur. In fact the Arkansas Supreme Court observed similarly in Walton v. Tull, when it stated:

We are not convinced that the legislature meant to go any farther than to deny recovery to a plaintiff whose own negligence was at least 50 percent of the cause of his damage. To refuse redress to an injured person whose negligence was only 10 percent of the total would almost be a return to the common law doctrine of contributory negligence.

234 Ark. at 893, 356 S.W.2d at 26.

It is beyond question that the Pennsylvania Comparative Negligence Act was enacted to remedy the harshness of the common law doctrine of contributory negligence, under which even 1% negligence by a plaintiff would bar his recovery. In any interpretation of the Act, therefore, we must choose that view which most effectuates the purpose of permitting recovery by a plaintiff who is not more negligent than those who committed the wrong against him. To adopt the “individual” approach could lead to situations, as shown above, where a plaintiff that the legislature intended should be able to recover some of his damages would be completely foreclosed from any recovery. We cannot sanction any interpretation of the Act which would produce such a result. The Act has adequate protections for defendants in the form of contribution based on the relative percentages of fault and the reduction of the verdict in favor of plaintiff by the plaintiff’s percentage of negligence, if any, in a particular case. To the extent any other inequity is caused by the application of the Act, the defendant or defendants must bear such a burden.

Accordingly, we hold that the Pennsylvania Comparative Negligence Act, 42 Pa.C.S. § 7102, will bar recovery by a plaintiff only when his causal negligence is greater than that of the combined or aggregate negligence of all the defendants guilty of causal negligence in connection with plaintiff’s injuries. We also find that the mere fact that an individual defendant’s percentage of causal negligence is less than the percentage of the plaintiff’s negligence will not bar the plaintiff from recovering the full amount of the allowed recovery from that defendant so long as the plaintiffs negligence is not greater than the combined or aggregate negligence of all the defendants. This is the only logical and fair approach to take in light of the language and purposes of our Act. Any other conclusion would violate the intent of the legislature which enacted the Act. Based on this reason, as well as other foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

MONTGOMERY, J., files a dissenting opinion.

MONTGOMERY, Judge,

dissenting:

I respectfully dissent. I would reverse and order a new trial on two grounds. First, I disagree with the conclusion reached by the Majority that it was not error for the lower court to have charged the jury on the sudden emergency doctrine. I do not believe that the record contains any evidence of the type which would have supported a charge regarding that doctrine. Moreover, I believe that the error in giving that charge was compounded by the lower court’s explanation to the jury of the assured clear distance rule. In the fact situation presented in the instant case, I believe that the charges on sudden emergency and assured clear distance were mutually exclusive. See and compare Sullivan v. Wolson, 262 Pa.Super. 397, 396 A.2d 1230 (1978). Confusion by the jury was unavoidable in these circumstances and a new trial is mandated.

Secondly, I would award a new trial based upon my conclusion that the evidence was insufficient to find the Borough of Harrisville negligent. In light of the record as a whole, I cannot conclude that sufficient evidence was presented to show a departure by the Borough from a reasonable standard of care in connection with the events leading to the collision which gave rise to this litigation. Thus, I would also reverse on that ground.

      . We note that this result may have differed had the incident which gave rise to the cause of action herein occurred after enactment of either the Political Subdivision Tort Claims Act, 53 P.S. § 5311.101 et seq. (repealed) or Sections 8541-64 of the Judicial Code, 42 Pa.C.S.A. §§ 8541-64. These acts created general governmental tort immunity with certain specified exceptions to that immunity.


author: JOHNSON, Judge: BROSKY, Judge,

text:
    483 A.2d 490
    M.N.C. CORPORATION, a Delaware Corporation, Appellant, v. MOUNT LEBANON MEDICAL CENTER, INC., a Pennsylvania Corporation; and William J. Bartram, President and William J. Bartram, an Individual.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1984.
    Filed Sept. 14, 1984.
    Reargument Denied Nov. 27, 1984.

      Rochelle S. Friedman, Pittsburgh, for appellant.
    John B. Nicklas, Jr., Pittsburgh, for appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ.
   JOHNSON, Judge:

This appeal arises from the order of March 17, 1982 opening judgment and permitting appellees Mount Lebanon Medical Center, Inc. and William J. Bartram to enter a defense.

The factual and procedural history indicates that in 1978, M.N.C. Corporation (M.N.C.) entered into a lease agreement for use of a building owned by Mount Lebanon Medical Center, Inc. (Center) and located in the municipality of Mount Lebanon. The municipality began issuing daily citations to M.N.C. for building code and zoning violations in February of 1979. M.N.C. then instituted an equity action against the municipality for injunctive relief. A preliminary settlement was reached on March 8, 1979. In December of 1979, the Center sought to intervene by petition, which was granted in March of 1980. The Center filed a cross-claim against M.N.C. and the municipality for damages and unpaid rent. Following dismissal of the municipality from the cross-claim, the Center and M.N.C. reached a final settlement as to both the original equity action and cross-claim on April 18, 1980.

By the terms of the settlement, the Center was to issue a note in the amount of $15,000 plus interest to M.N.C., payable within 90 days and immediately recordable. The Center was also to supply M.N.C. with a certificate of existing liens on the property and their value. M.N.C. was required to discontinue the prior action and provide the Center with access to the building.

M.N.C. duly recorded the note and judgment was entered on it on April 23, 1980. The premises in question were vacated by M.N.C. on May 5. Execution on the judgment was commenced by M.N.C. on July 30, following the due date on the note and failure of the Center to pay. The bank accounts of the Center and appellee Bartram were then garnished.

The Center’s petition to open judgment was filed August 8, 1980. It alleged, inter alia, that M.N.C. had failed to comply with the April 18 order by (1) failing to remove its padlocks and deliver access, (2) failing to remove all personal property, and (3) unlawfully removing certain property. Also, the petition alleged that the note was issued to compensate M.N.C. for certain permanent improvements made to the premises leased and that the alleged unlawful removal of property by M.N.C. involved some of the improvements on which the note was based. The petition alleged that appellees attempted to settle these compliance problems with M.N.C., without success, and requested the judgment be opened so that they might enter a defense of counterclaim and set-off.

The Center’s petition was denied on October 8, 1980 following a hearing. The initial appeal by the Center to this court resulted in the vacation and remand of the case to the trial court, as the trial court’s opinion filed pursuant to Pa.R.A.P. 1925 set forth that it had erred in denying the petition to open. M.N.C. Corp. v. Mt. Lebanon Medical Center, Inc., 294 Pa.Super. 405, 440 A.2d 528 (1982). Following remand, the trial court granted the Center’s petition and this appeal followed.

M.N.C. raises two issues on appeal: (1) whether the trial court erred in granting the Center’s petition for leave to intervene and (2) whether the trial court erred in granting the Center’s petition to open.

We first address the Center’s argument that this appeal should be quashed, as it raises the same issue already adjudicated by the prior appeal to this court. We disagree.

The original order on the petition to open judgment denied said petition without opinion. Following the filing of a notice of appeal to this court, the trial court issued an opinion stating that its decision was erroneous, but, because of its loss of jurisdiction of the case while on appeal, it was powerless to reverse its determination. The Superior Court, in vacating and remanding the case to the trial court stated:

Inasmuch as the lower court admits the inappropriateness of the October 8, 1980 order, we shall remand the matter to the lower court to reconsider its order based upon its Rule 1925 opinion.

M.N.C. Corp. v. Mt. Lebanon Medical Center, Inc., 294 Pa.Super. at 406, 440 A.2d at 529.

If the Center is correct in its allegation that the prior appeal constituted a decision on the merits, then the instant appeal would be barred. See Albright v. Wella Corp., 240 Pa.Super. 563, 359 A.2d 460 (1976). However, we believe that the prior opinion of this court was not meant to constitute an adjudication on the merits. Had the court desired to make such a decision on the merits, there would have been no necessity to remand for reconsideration by the trial court, but merely a reversal of the trial court’s order. Hence, we find the instant order appealable.

Appellant’s first issue concerns the validity of the trial court’s order granting the Center’s petition to intervene in the action between M.N.C. and Mount Lebanon. The said order was granted on March 12, 1980 and the judgment entered on the note issued pursuant to the settlement agreement on April 23, 1980.

Ordinarily, an order permitting intervention is interlocutory and not appealable. In re Manley, 305 Pa.Super. 332, 451 A.2d 557 (1982); Kovacs v. Redevelopment Authority of Philadelphia, 16 Pa.Commw. 410, 328 A.2d 545 (1974). However, such an order granting intervention is reviewable after entry of final judgment. See Sailor Planing Mill & Lumber Co. v. Moyer, 35 Pa.Super. 503 (1908); 5 Am.Jur.2d Appeal & Error § 859 (order granting intervention may ordinarily be reviewed on appeal from final judgment).

In the instant case, the parties consented to the judgment, pursuant to the April 18 order of court which was signed by counsel for appellant and appellees. Ordinarily, a party who consents to, or acquiesces in, a judgment or order cannot appeal from that judgment or order. Brown v. Commonwealth Department of Health, 495 Pa. 456, 434 A.2d 1179 (1981); 16 Std.Pa. Practice 2d § 85:52. In any event, appellant failed to appeal from either the April 18 order or the subsequent entry of judgment, thus precluding our review of the intervention issue.

The second issue concerns whether the trial court erred in granting the Center’s petition to open judgment.

In order to open a confessed judgment, 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. West Chester Plaza Associates v. Chester Engineers, 319 Pa.Super. 196, 465 A.2d 1297 (1983); Bell Federal Savings & Loan Association of Bellevue v. Laura Lanes, Inc., 291 Pa.Super. 395, 435 A.2d 1285 (1981); see also Pa.R.C.P. 2959. The standard of sufficiency a court must employ is that of the directed verdict — viewing all the evidence in the light most favorable to the petitioner and accepting as true all evidence and proper inferences therefrom supporting the defense while rejecting adverse allegations of the party obtaining the judgment. Weitzman v. Ulan, 304 Pa.Super. 204, 450 A.2d 173 (1982).

A petition to open judgment is an appeal to the equitable powers of the court and is addressed to its sound discretion; a reviewing court will not reverse the determination of the trial court absent a clear and manifest abuse of discretion. Weitzman v. Ulan, supra; Industrial Valley Bank & Trust Co. v. Lawrence Voluck Associates, Inc., 285 Pa.Super. 499, 428 A.2d 156 (1981).

The instant judgment was based on the consent order dated April 18, 1980. A consent decree or order is a contract binding the parties to the terms thereof, and a court has neither the power nor the authority, absent fraud, accident or mistake, to modify its contents. Sabatine v. Commonwealth, 497 Pa. 453, 442 A.2d 210 (1981). The Center’s defense supporting its petition to open was based on a counterclaim or set-off, alleging that part of the consideration for the note, namely permanent improvements made by M.N.C., had been removed from the premises, thereby entitling the Center to a set-off against the full amount of the note due and payable.

As stated in J.M. Korn & Son, Inc. v. Fleet-Air Corp., 300 Pa.Super. 458, 462, 446 A.2d 945, 947 (1982) (citations omitted):

In the absence of fraud, an unliquidated counterclaim or set-off is not grounds for opening a judgment confessed under a warrant of attorney. The reason for the rule is understandable. “To a judgment there can be no set-off of a debt not in judgment. One judgment may be set off against another, through the equitable powers of the court, but to a judgment ripe for execution, there can be but one answer, to wit, payment pure and simple.”

An exception exists, however, where the subject matter of the defense is attached to the judgment or the consideration on which it rests. Bell Federal Savings & Loan Association of Bellevue v. Laura Lanes, Inc., supra; Pollard & Brant, Inc. v. Stein, 81 Pa.Super. 374 (1923). This exception holds true even where the defense does not exist until subsequent to the judgment. Id.

M.N.C. argues that contrary to the conclusion of the trial court, the Center’s defense does not fall within the exception to the general rule that an unliquidated counterclaim or set-off is not grounds for opening a judgment. We agree.

While it may initially appear that the Center’s defense falls within the exception, upon a review of the order which serves as the basis for the judgment, it is clear that the allegations concerning permanent improvements, serving as consideration for the note, are unfounded.

The April 18 order required: (1) the Center to issue a judgment note for $15,000 plus interest to M.N.C., said note to be immediately recordable, (2) the Center to supply M.N.C. with a certificate of existing liens on the property along with a statement of market value, and (3) M.N.C., upon receipt of the aforementioned, to settle and discontinue its action against Mount Lebanon, in which the Center had intervened. The order also dissolved the prior injunctive decree and required that M.N.C. and Mount Lebanon remove their padlocks from the premises and deliver possession to the Center. Attached and made a part of the order was a letter written by counsel for the Center to counsel for M.N.C. This letter set forth the liens and value of the property, as required by the consent order. The letter also reiterates some of the terms of the order, i.e., the delivery of the judgment note “representing the agreed value of permanent improvements made to the premises” by M.N.C. We note, however, that no mention is made in the order of this alleged consideration for the issuance of the note. Also, it is clear that the order, on its face, indicates that consideration for the note exists through M.N.C.’s requirement to settle and discontinue the action.

We find the instant situation similar to that found in Weitzman v. Ulan, supra, where this court held that an alleged oral agreement between the parties to a written lease regarding application of rent payments to the cost of certain repairs did not constitute a valid defense sufficient to open judgment confessed on the lease. We therefore hold that the Center’s defense of failure of consideration as based on the alleged removal of permanent improvements is not a valid defense, entitling them to open the instant judgment, because the said consideration does not appear in the terms of either the consent order or judgment itself. The Center’s petition to open failed to adequately allege fraud, accident or mistake, such that the contents of the order were modifiable. See Sabatine v. Commonwealth, supra.

We also note that to allow a defense, such as the one posed by the Center, to serve as a basis for opening a judgment entered pursuant to a consent order, raises serious questions of fairness where the other party has complied with its part of the bargain. If, for example, M.N.C. did settle and discontinue the action as required by the order, then they are placed in a position of severe disability if the judgment is opened. As other legal means exist for the Center to enforce its rights, the judgment should not have been opened.

The order of March 17, 1982 is reversed.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. I would affirm the trial court’s order granting the Center’s petition to open judgment because I believe that the defense asserted by the Center falls within the exception to the general rule that an unliquidated counterclaim is not grounds for opening a judgment. That is, I believe that the subject matter of the defense asserted by the Center is attached to the consideration on which the judgment rests.

As the majority explains the April 18 order provided the basis for the judgment. Attached to that order and made a part of it was a letter written by counsel for the Center to counsel for M.N.C. Unlike the majority, I interpret that letter as stating that the judgment note for $15,000 was given in consideration for the permanent improvements made by M.N.C.

The first paragraph of the letter is as follows:

In connection with the settlement agreed upon in Chambers, whereby it was agreed that your client, M.N.C. Corporation, would forthwith vacate the storeroom premises of the building owned by Mt. Lebanon Medical Center, Inc., situate at 370 Castle Shannon Boulevard, Mt. Lebanon Township, Allegheny County, Pennsylvania, our client, Mt. Lebanon Medical Center, Inc., Intervenor, would deliver to your client, M.N.C. Corporation, a judgment note in the sum of $15,000.00 payable on or before three months from the date thereof with interest at 6'% representing the agreed value of permanent improvements made to the premises by your client.
(emphasis added)

The Center’s proffered defense, that the permanent improvements had been removed from the premises, seems to me to be clearly attached to the consideration on which the judgment rests. The consideration may have included M.N. C.’s agreement to settle and discontinue its action, but it also included the permanent improvements made to the property by M.N.C.

In this respect the present case differs from Bell Federal Savings and Loan Association of Bellevue v. Laura Lanes, Inc., 291 Pa.Super. 395, 435 A.2d 1285 (1981) in which the appellant sought to open a judgment based on the possibility of another unrelated judgment being entered.

Nor do I agree that the present situation is similar to that found in Weitzman v. Ulan, 304 Pa.Super. 204, 450 A.2d 173 (1982) in which the defense asserted by the appellants was based on an alleged oral modification of a lease which provided that any alteration of its terms was to be in writing.

On the contrary, the defense asserted by the appellee before us is based on the written terms of a letter made part of the order on which the judgment rests. The order of the lower court opening the judgment and permitting the Center to present a defense should be affirmed.

      . References hereinafter to appellee Center shall include individual appellee Bartram.

        . It is undisputed that the Center’s counterclaim or set-off was unliquidated.


author: POPOVICH, Judge:

text:
    483 A.2d 495
    COMMONWEALTH of Pennsylvania, Appellant, v. Earl CARTER.
    Superior Court of Pennsylvania.
    Argued July 10, 1984.
    Filed Sept. 18, 1984.
    Reargument Denied Nov. 20, 1984.

      Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Donald Bronstein, Assistant Public Defender, Philadelphia, for appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Philadelphia County granting a motion to suppress evidence in favor of appellee, Earl Carter. We affirm.

The sole issue on appeal is whether the lower court erred in granting the motion to suppress evidence. This court has held that the Commonwealth may appeal from an order suppressing evidence if the record shows that the order terminates or substantially handicaps the prosecution. Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983). The lower court’s decision may be upheld only if the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977).

On June 8, 1983, at approximately 4:00 a.m., Officer Schu observed appellee walking northbound on Watts Street carrying a large bundle. He intercepted him on Second Street where he was stopped by a trash dumpster. Appellee was attempting to stuff his bundle into a trash bag. Officer Schu noticed “a large mantelpiece-type clock pro-trading from the bag.” (S.N.T. 6) After noticing the clock, Officer Schu “walked a little closer and peered into the top of the bag” (S.N.T. 7) observing a clock, radio cassette player and a camera inside. Officer Schu then asked appellee what he was doing whereupon the latter answered that he was “trashpicking”. Officer Schu then removed the items from the bag and examined them closely. Next, Officer Schu frisked appellee and found on his person a walkman-type radio, two watches, a change pouch with approximately $44.00 inside and miscellaneous cash. He handcuffed appellee and arranged for his transport to the police station. Officer Schu then returned to the area where he had first observed appellee and noticed an open window with items strewn under the window. Through it, he observed that the room “appeared to be ransacked.” (S.N.T. 10) Officer Schu then rang the doorbell to awaken the residents who subsequently identified the confiscated items as their own.

The lower court held that “the police officer lacked reasonable, articulable grounds to support a suspicion that criminal activity was afoot at the time that he observed and stopped the defendant.” Since the stop was concluded to have been unlawful, the lower court suppressed the fruits thereof.

A policeman may legally stop a person and question him.

But he may not without a warrant restrain that person from walking away and “search” his clothing, unless he has “probable cause” to arrest that person or he observes such unusual and suspicious conduct on the part of the person who is stopped and searched that the policeman may reasonably conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous.

Commonwealth v. Berrios, 437 Pa. 338, 340, 263 A.2d 342, 343 (1970).

It is unnecessary for us to decide when or whether the officer observed such unusual conduct that he could have reasonably concluded that criminal activity was afoot at the time of the stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Officer Schu’s search of appellant and of the contents of the parcel were violative of the restrictions of a “stop and frisk”.

It appears that Officer Schu conducted a search of appellee’s clothing and bag in an attempt to discover contraband. None of the items found on appellant’s person could have reasonably been mistaken for weapons. Where probable cause to arrest is absent, the search of a suspect must be limited to a search of the suspect’s person for the protection of the officer.

The basis for a brief search or frisk of a person who has been lawfully detained for questioning short of arrest is based on the personal regard for safety of the police officer detaining the suspicious person. A search of this nature is the contact or patting down of the outer clothing by the sense of touch to detect a concealed weapon. This type of search is much less an invasion of privacy than a full search of the person would be. We adopt the language in People v. Rivera, supra, perhaps the leading case on this subject, when it states, 14 N.Y.2d 441 at 447, 252 N.Y.S.2d 458 at 463, 201 N.E.2d 32 at 35: “And as the right to stop and inquire is to be justified for a cause less conclusive than that which would sustain an arrest, so the right to frisk may be justified as an incident to inquiry upon grounds of elemental safety and precaution which might not initially sustain a search.” This is not to say that in every case the investigating policeman may automatically frisk a suspect for weapons. Such a frisk must be based on the reasonable belief by the policeman that safety so required. Such a search must also be limited to the person and his immediate surroundings, and only to the extent necessary to discover any dangerous weapons which may on that occasion be used against the officer.

Commonwealth v. Hicks, 209 Pa.Super. 1, 223 A.2d 873, 877 (1966) (emphasis added).

Moreover, since appellant made no inexplicable sudden movements and there was no evidence of any suspicious bulge in his clothing, it is unclear whether Officer Schu would have had reason to conduct even a limited Terry search on a belief that appellee was armed and dangerous. “[T]he arresting officer must be able ‘to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.’ ” Commonwealth v. Berrios, supra, 437 Pa. at 341, 263 A.2d at 343, quoting from Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968).

No further information came to light during the detention or the frisk to justify an arrest, which could have properly included a complete warrantless search. Commonwealth v. Prengle, 293 Pa.Super. 64, 437 A.2d 992 (1981). No crime had thus far been reported, nor were any weapons seized from appellee’s person.

Accordingly, since the scope of the search far exceeded that justified by the Terry standard and since there was no probable cause of appellee’s arrest or search incident thereto, we affirm the order of the lower court.

Order affirmed.

WIEAND, J., noted his dissent.


author: WIEAND, Judge:

text:
    483 A.2d 498
    COMMONWEALTH of Pennsylvania, Appellant, v. Alvin MILLER.
    Superior Court of Pennsylvania.
    Argued March 14, 1984.
    Filed Sept. 21, 1984.
    Reargument Denied Nov. 26, 1984.

      Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Donald S. Bronstein, Assistant Public Defender, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   OPINION

WIEAND, Judge:

Where the Commonwealth, in order to protect the life of an informant, refuses to disclose publicly the informant’s identity or the identity of prior cases in which he cooperated with the police, does a suppression court properly strike the search warrant affidavit reciting probable cause provided by the informant and suppress the fruits of an armed robbery found in the accused’s residence? We conclude that the evidence in this case was improperly suppressed. Therefore, we reverse and remand for further proceedings.

The relevant facts are not in dispute. On April 18, 1982, Korman’s Discount Store on Ridge Avenue in Philadelphia was robbed by two men, one of whom wielded a sawed-off shotgun. Jewelry was taken having a value of several thousand dollars. On the following day, April 19, Detective John Knowles obtained a search warrant, with authority to conduct a nighttime search, for premises occupied by Alvin Miller at 2149 West Sherwood Street, Philadelphia. The affidavit of probable cause provided as follows:

On Monday 4-19-82 Kormans Discount 2163 Ridge Ave was robbed by two negro males at approximately 4:10 PM. This robbery was committed point of shot gun. When the two males were unable to gain entrance to the safe they broke the glass of a display case and removed several thousand dollars worth of jewelry[.] These items are discribed [sic] above as items to be searched for. On Monday 4-19-82 the affiant received [sic] a telephone call at about 7:25 PM from a person who has given the affiant information in the past. The affiant met the informant and after having him identify a photo of the above named male the informant directed the affiant to the actors [sic] residence. The informant went on to say that earlier that day (4-19-82) he had been told by a Rodney Brooks that he and another male were “going to get down”. A short time after this the informant saw Rodney Brooks in the company of the above named actor and was asked if he wished to buy any jewelry. Both the actor and Rodney Brooks had a large guanity [sic] of jewelry on them. He further stated that he heard both Brooks and Miller tell another male that they had robbed the Korean store at 22nd and Ridge and that is where the jewelry came from.
The affiant noted that the owners of Kormans Discount are Korean and that the actor fits the description [sic] of one of the males. This discription [sic] was given by the Korean owner and a negro employee.
CREDITABILITY: [sic] The affinat [sic] notes the following to attest to the creditability [sic] of the informant: On Thursday 4-15-82 the informant gave the affiant information leading to the arrest of two males involved in a burglary and an auto theft. This information also led to the recovery of the stolen motor vehicle. The affiant then contacted Det [sic] Louis Green #9179 who stated that he had received information from the same informant that had led to two arrests in the past 4 weeks and in one of the cases property was recovered.
On Monday 4-19-82 the affiant again spoke to the informant at 10:30PM and was advised that Alvin Miller had just been seen by him on the street and he was still wearing some of the jewelry.
Based on the affiants belief that the above statements are true and based on reliability of the informants past information the affiant respectfuly [sic] requests the issuence [sic] of this warrant to facilitate the recovery of the stolen goods.
The affiant further requests that a night time search be permitted due to the ease with which the stolen property can be moved or disposed of. All of the listed items except for the shotgun can be secreted on the body of one individual and removed from the property.

When the warrant was executed, police found a sawed-off shotgun and numerous pieces of jewelry which had been taken in the armed robbery on the previous day.

At a pre-trial suppression hearing, Miller’s counsel attempted to challenge the reliability of the informant whose “tip” had led to discovery of the stolen jewelry. He did not contend that the affiant had falsified the existence of the informant. During cross-examination of Knowles, the affiant, defense counsel asked for the names of the persons previously arrested because of information provided by the informant. Knowles said that he would not divulge this information in open court because its disclosure would lead to identification of the informant, whose life would thereafter be in serious danger. After the hearing judge and counsel had conferred in chambers, without the defendant being present, the hearing was continued until the following morning and Knowles was requested to obtain from another police officer the identities of the other persons who had been arrested as a result of information supplied by the informant.

When the proceedings were resumed the following morning, the Commonwealth requested the hearing judge to receive evidence pertaining to the informant’s prior activities in camera without the presence of the defendant or his counsel. This request was denied. Detective Knowles then testified and explained that identification of the persons whose arrests had been made possible with assistance from the informant would make it possible to identify the informant and explained also why the informant’s life would be endangered by disclosure of his identity. When the court nevertheless required the witness to disclose the information requested, the attorney for the Commonwealth offered to disclose the names of persons arrested by the witness, Detective Knowles, based upon information supplied by the informant. Defense counsel insisted on knowing the names of persons arrested by other police as well. Since the informant had also been a witness in one of these cases, Knowles refused to provide this information. Thereupon, the hearing court ordered all information supplied by the informant stricken from the affidavit. With this information deleted, the court found the affidavit insufficient to show probable cause for the issuance of a warrant to search. It concluded, therefore, that the search had been illegal and entered an order suppressing the evidence obtained from the defendant’s residence. The Commonwealth appealed.

“When confronted with a Commonwealth appeal from an order suppressing evidence, we must determine for ourselves whether the order is appealable — whether it terminates or substantially handicaps the prosecution; and we must make that determination on the basis of the record ____” Commonwealth v. Lapia, 311 Pa.Super. 264, 277, 457 A.2d 877, 884 (1983). See also: Commonwealth v. Markman, 320 Pa.Super. 304, 308 n. 1, 467 A.2d 336, 338 n. 1 (1983); Commonwealth v. York, 319 Pa.Super. 13, 15, 465 A.2d 1028, 1029-1030 (1983); Commonwealth v. Johnson, 315 Pa.Super. 579, 582, 462 A.2d 743, 744-745 (1983). In the instant case, there can be no doubt that the Commonwealth’s prosecution of the defendant was substantially handicapped by an order suppressing the weapon used in the robbery and the jewelry taken in the robbery. The only other evidence connecting appellee with the robbery was identification made by the victim. This identification, although positive at the preliminary hearing, had been tentative during an earlier lineup. See and compare: Commonwealth v. Rodriguez, 330 Pa.Super. 295, 297-298, 479 A.2d 558, 559 (1984); Commonwealth v. York, supra; Commonwealth v. Walsh, 314 Pa.Super. 65, 460 A.2d 767 (1983); Commonwealth v. Mack, 313 Pa.Super. 372, 459 A.2d 1276 (1983); Commonwealth v. Williams, 313 Pa.Super. 243, 459 A.2d 830 (1983).

“To support a search warrant, an affidavit must provide a magistrate with sufficient information to persuade a reasonable person that there is probable cause for a search.” Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 454, 445 A.2d 1214, 1217 (1982). It is well-settled that a “tip” from an unnamed informant can properly form the basis for probable cause, provided there is adequate evidence of the informant’s credibility. Following the decision of the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the courts of this State employed a “two pronged test” to determine whether an informant’s tip was sufficient to show probable cause. A police affiant requesting a warrant was required to state the circumstances by which the informant obtained the information recited in the affidavit. He was also required to state in the affidavit the basis for finding the informant reliable. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), however, the United States Supreme Court replaced the “two pronged test” with a totality of the circumstances test. This Court has followed Illinois v. Gates, supra, and has applied a totality of the circumstances approach in cases subsequently coming before it. See: Commonwealth v. Corleto, 328 Pa.Super. 522, 525-526, 477 A.2d 863, 865 (1984); Commonwealth v. Ensminger, 325 Pa.Super. 376, 383, 473 A.2d 116, 118 (1984); Commonwealth v. Gray, 322 Pa.Super. 37, 46, 469 A.2d 169, 173 (1983); Commonwealth v. Rosario, 320 Pa. Super. 215, 217, 467 A.2d 5, 6 (1983); Commonwealth v. Price, 318 Pa.Super. 240, 244, 464 A.2d 1320, 1323 (1983). Now, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, supra 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548; Commonwealth v. Price, supra 318 Pa.Super. at 247, 464 A.2d at 1324. “[A]n informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report____ [H]owever, ... these elements should [not] be understood as entirely separate and independent requirements to be rigidly exacted in every case ... Rather, ... they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” Illinois v. Gates, supra 462 U.S. at 230, 103 S.Ct. at 2327-2328, 76 L.Ed.2d at 543. See: Commonwealth v. Gray, supra 322 Pa.Super. at 46, 469 A.2d at 173.

A defendant may go beyond the four corners of an affidavit on which a search warrant is issued to challenge the veracity of the affiant whose assertions established probable cause. “To rule otherwise would permit the police in every case to exaggerate or expand on the facts given to the magistrate merely for the purpose of meeting the probable cause requirement, thus precluding a detached and objective determination of whether probable cause for the warrant existed.” Commonwealth v. D’Angelo, 437 Pa. 331, 337-338, 263 A.2d 441, 444 (1970). See: Commonwealth v. Ryan, 268 Pa.Super. 259, 265, 407 A.2d 1345, 1348 (1979). Thus, in Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973), the Supreme Court held that the affiant could be cross-examined at a suppression hearing to determine the veracity of a statement in the affidavit that a confidential informant had supplied information on prior occasions leading to five arrests and three convictions. The Court said:

[T]he allegation of “5 arrests and 3 convictions” resulting from an unnamed informant’s earlier information is an assertion that is impossible for a defendant to explore prior to the suppression hearing, and is clearly a proper subject for inquiry there____ Indeed, the only existing method to effectively probe the veracity of the assertion is to allow a defendant meaningful cross-examination of the police officer-affiant at the suppression hearing____
It must be concluded that appellant at the suppression hearing should have been afforded the opportunity through “the traditional safeguard” of cross-examination, to test the truthfulness of the recitals in the warrant alleging the informant’s previous reliability.

Id, 451 Pa. at 207-208, 302 A.2d at 345-346. See also: Commonwealth v. DeCaro, 298 Pa.Super. 32, 47, 444 A.2d 160, 167-168 (1982); Commonwealth v. Zimmerman, 282 Pa.Super. 286, 296-297, 422 A.2d 1119, 1124-1125 (1980).

An accused’s right to cross-examine the affiant regarding the reliability of the informant will, at times, conflict with the Commonwealth’s right to withhold from disclosure the identity of persons who furnish information to police of violations of law. This privilege, as Justice Larsen has observed, “is undoubtedly an important and necessary ingredient of the criminal justice system____ ‘[It] recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.’ ” Commonwealth v. Iannaccio, 505 Pa. 414, 436, 480 A.2d 966, 977 (1984) (Opinion in support of reversal), quoting Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, 644 (1957). The tension between the Commonwealth’s privilege of nondisclosure and the right of an accused to test the reliability of information placed in an affidavit must be resolved by “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Commonwealth v. Fox, 267 Pa.Super. 341, 347, 406 A.2d 1072, 1075 (1979), quoting Roviaro v. United States, supra 353 U.S. at 62, 77 S.Ct. at 628-629, 1 L.Ed.2d at 646. Accord: Commonwealth v. McGinn, 251 Pa.Super. 170, 173, 380 A.2d 431, 433 (1977); Commonwealth v. Williams, 236 Pa.Super. 184, 189-191, 345 A.2d 267, 270 (1975). See also: Commonwealth v. Herron, 475 Pa. 461, 466-467, 380 A.2d 1228, 1230 (1977); Commonwealth v. Garvin, 448 Pa. 258, 266, 293 A.2d 33, 38 (1972); Commonwealth v. Carter, 427 Pa. 53, 59, 233 A.2d 284, 287 (1967); Commonwealth v. Davis, 318 Pa.Super. 507, 513, 465 A.2d 669, 671-672 (1983); Commonwealth v. Garcia, 261 Pa.Super. 296, 300, 396 A.2d 406, 408 (1978).

As a general rule, the disclosure of information leading to the identification of an unnamed informant will be required only upon “some showing that revelation is necessary.” Commonwealth v. McGinn, supra 251 Pa.Super. at 173, 380 A.2d at 433. A panel of this Court held in McGinn that it was error for a suppression court to require a police witness to answer a question tending to disclose the location of the informant’s residence. In Commonwealth v. Fox, supra, this Court refused to compel disclosure of an informant in order that the accused might obtain the informant’s criminal record to challenge his motive and credibility. Disclosure would not be required, the Court said, in the absence of a “substantial interest in disclosure.” Id. 267 Pa.Super. at 349, 406 A.2d at 1076. Finally, in Common wealth v. Williams, supra, this Court upheld the trial court’s refusal to order an in camera interview with the informant where the defendant’s only contention was that the informant did not exist, contrary to the testimony of several police officers. See also: Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980) (disclosure of informant’s identity properly refused where person in question was only one of 62 witnesses to riot whose name was not given to the defense and whose knowledge of the event was of very limited probative value, if any); Commonwealth v. Garvin, supra (disclosure of the identity of an informant properly denied where the defendant had been positively identified by the two victims of a robbery, rendering informant’s observations, if any, unimportant to the defense); Commonwealth v. Davis, supra (counsel not ineffective for failing to seek disclosure of informant’s identity where there was no evidence as to how such information would have assisted the defense and overcome the Commonwealth’s privilege of nondisclosure); Commonwealth v. Garcia, supra (disclosure properly denied where informant was not an eyewitness nor the sole means of identifying accused). Compare: Commonwealth v. Washington, 463 Pa. 206, 344 A.2d 496 (1975) (where informant is sole eyewitness, identity must be disclosed); Commonwealth v. Carter, supra (where testimony from a more disinterested source is available, it is error to refuse to disclose an informant who constitutes that source).

“In striking these individualized balances,” the Court of Appeals for the Second Circuit has said, “the most persuasive case for disclosure is where the examination of the informant is necessary to vindicate a defense on the merits and where the withholding of the information will thereby compromise the truth finding function of the trial. Conversely, ... the need for disclosure is far less compelling when it is sought in connection with pre-trial issues, such as the propriety of search or seizure, which do not bear upon the ultimate question of guilt or innocence.” United States v. Manley, 632 F.2d 978, 985 (2d Cir.1980), cert. denied, sub nom. Williams v. United States, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981).

In pre-trial suppression hearings, where the need to protect the informant’s identity clashes with the accused’s right to test the veracity of an affidavit of probable cause, the judge may conduct an in camera hearing. The informant can be identified at this hearing and, if necessary, can be produced. The prosecutor may be present, but not the accused or his attorney. It is not at all realistic to believe that the anonymity of the informant will long be preserved after it has been disclosed to counsel for the defendant. Therefore, defense counsel should not be present. He may, if he chooses to do so, submit in writing any questions which he wishes the hearing judge to ask the informant. A general report, which preserves the anonymity of the informant, can be prepared by the court, and this report can then be made a part of the record and disclosed to counsel for the accused. Such a procedure has been adopted and followed in other jurisdictions. See, e.g.: United States v. Perez-Gomez, 638 F.2d 215 (10th Cir.1981); United States v. Manley, supra; United States v. Cortese, 614 F.2d 914 (3rd Cir.1980); United States v. Freund, 525 F.2d 873 (5th Cir.) cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 377 (1976); People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 (1974); State v. Potter, 25 Wash.App. 624, 611 P.2d 1282 (1980).

Appellee contends that this procedure has been precluded by the decision of the Pennsylvania Supreme Court in Commonwealth v. Hall, supra. We disagree. The Court in Hall was not faced with a need to protect the identity of an informant. Therefore, it did not consider the conflict which has caused other courts to adopt the in camera, ex parte hearing as a compromise of the conflicting interests of Commonwealth and accused. Moreover, in Commonwealth v. Iannaccio, supra, both the opinion in support of affirmance and the opinion in support of reversal expressed approval of innovative procedures intended to protect the anonymity of the informant. In that case, the trial court had suggested a procedure by which the Commonwealth could have produced the informant in camera.

The danger to the life of the informant in this case is real; it is not disputed. Disclosure of cases in which he previously gave information will most likely lead to the accused’s ability to identify the informant. The need to preserve his anonymity is substantial. On the other hand, identification of the informant will serve only a limited interest of the appellee. He does not challenge the existence of the informant but seeks only to challenge the reliability of the informant as established by prior conduct recited in the search warrant affidavit. Compare: Commonwealth v. Williams, supra. He seeks to challenge the credibility of the information relied upon by the issuing authority in issuing the warrant to search. That this is a valid purpose has been established in Pennsylvania by the decision in Commonwealth v. Hall, supra. However, appellee has not been deprived of the right to cross-examine the affiant, which Hall guarantees. He has been deprived only of the right to cross-examine the affiant regarding the identity of the informant. The identity of the informant will not assist appellee in establishing his innocence of the charges brought against him. Under these circumstances, the credibility of the affiant’s representations concerning the informant can be inquired into in camera, without the presence of the accused or his counsel. In this manner the safety of the informant can be assured without depriving the accused of the right to insist that a search warrant be issued only upon probable cause.

The Commonwealth argues that an additional suppression hearing is unnecessary because, even without the informant’s history of reliability, the information which he supplied was sufficiently corroborated by other facts recited in the affidavit. We are unable to accept this argument. Our examination of the affidavit discloses corroboration of the fact that a robbery occurred, but corroboration of nothing more. Specifically, there is no corroboration of the "tip” that appellee was a participant in the robbery or that there was reason to believe that contraband could be found in his residence. See and compare: Commonwealth v. Corleto, supra (tip corroborated by observation of indicia of drug dealing); Commonwealth v. O’Shea, 328 Pa.Super. 104, 476 A.2d 911 (1984) (tip corroborated by observation of marijuana being unloaded at house in question); Commonwealth v. Price, supra (tip corroborated by police officer who established surveillance near accused’s apartment, overheard drug transactions and detected strong odor of marijuana); Commonwealth v. Deemer, 316 Pa.Super. 28, 462 A.2d 776 (1983) (tip leading to warrantless arrest corroborated by officers' observation of vehicle, occupants thereof, and stolen property at a time and place described beforehand by informant); Commonwealth v. Miley, 314 Pa.Super. 88, 460 A.2d 778 (1983) (tip corroborated by surveillance and detection of odor of methamphetamine); Commonwealth v. Barba, 314 Pa.Super. 210, 460 A.2d 1103 (1983) (tip from named informant corroborated by officers’ direct observation of stolen goods in accused’s buildings). The search warrant affidavit must be sufficient to allow the issuing authority to determine whether the informant is credible. This, in the instant case, depended entirely on whether the assertions of prior reliability were worthy of belief. The reliability of the information provided by the informant was not established other than by the recited history of prior accurate information which he had supplied.

Reversed and remanded for proceedings consistent with the foregoing opinion. Jurisdiction relinquished.

CAVANAUGH, J., concurs in the result.

      . An issue factually similar to that in Williams was recently argued before an en banc panel of this Court in Commonwealth v. Bonasorte, No. 1009 Philadelphia, 1982.

      . Darden was expressly disapproved on other grounds in People v. Belton, 50 N.Y.2d 447, 429 N.Y.S.2d 574, 407 N.E.2d 420 (1980), which, in turn, was reversed on other grounds by the United States Supreme Court in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

      . An otherwise insufficient informant’s tip can afford a basis for probable cause upon corroboration by the police. See, e.g.: Illinois v. Gates, 462 U.S. 213, 241, 103 S.Ct. 2317, 2334, 76 L.Ed.2d 527, 550 (1983); Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 567, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306, 312-313 (1971); Commonwealth v. Corleto, 328 Pa.Super. 522, 526, 477 A.2d 863, 864 (1984); Commonwealth v. O'Shea, 328 Pa.Super. 104, 110, 476 A.2d 911, 913 (1984); Commonwealth v. Price, 318 Pa.Super. 240, 250-252, 464 A.2d 1320, 1326-1327 (1983); Commonwealth v. Barba, 314 Pa.Super. 210, 215, 460 A.2d 1103, 1115 (1983); Commonwealth v. Miley, 314 Pa.Super. 88, 95, 460 A.2d 778, 782 (1983); Commonwealth v. Grabowski, 306 Pa.Super. 483, 493, 452 A.2d 827, 833 (1982).