author: MONTEMURO, Judge:

text:
    581 A.2d 585
    Donald KOVALESKI and Geraldine Kovaleski, Appellants, v. The ERIE INSURANCE GROUP, Appellee.
    Superior Court of Pennsylvania.
    Argued April 25, 1990.
    Filed Oct. 5, 1990.

      Joseph E. Jane, Bear Creek, for appellants.
    Edward Neyhart, Scranton, for appellee.
    Before MONTEMURO, BECK and FORD ELLIOTT, JJ.
   MONTEMURO, Judge:

Appellants, Donald and Geraldine Kovaleski (Kovaleskis), bring this appeal from a final judgment entered against them in their action for declaratory judgment against appellee, Erie Insurance Group (Erie Insurance), in which the Kovaleskis seek underinsured motorists benefits. The case was submitted for a non-jury trial upon a stipulation of facts. The trial court rendered a verdict in favor of Erie Insurance, and denied the Kovaleskis’ post-trial motions For the following reasons, we reverse the order of the trial court and remand this case for further proceedings.

On or about August 17, 1984, Geraldine Kovaleski was involved in an automobile accident in which she suffered personal injuries. Mrs. Kovaleski brought a claim for damages against the third-party tortfeasor, and subsequently settled the claim for $25,000.00, the liability limits of the tortfeasor’s insurance policy. This settlement figure was insufficient to compensate Mrs. Kovaleski for her injuries; thus, she and her husband initiated a claim against their own insurer, Erie Insurance, for underinsurance benefits, as Mrs. Kovaleski was insured by Erie Insurance at the time of the accident. Erie Insurance denied the claim on the basis that the Kovaleskis did not qualify for underinsurance benefits under the terms and conditions of their policy.

The Kovaleskis brought this declaratory judgment, seeking to resolve the dispute over their entitlement to underinsurance benefits from Erie Insurance. The trial court found that the Kovaleskis’ policy did provide for underinsured motorists benefits, but under the provisions of the policy and the circumstances of this case, the Kovaleskis were not entitled to any further recovery under the underinsured motorists provisions of their policy.

The resolution of this case depends upon the interpretation of the insurance policy. In interpreting insurance contracts, our courts have relied upon the traditional principles of contract interpretation which hold that the court must ascertain the intent of the parties from the wording of the written agreement, and in the absence of ambiguous language, enforce the plain meaning of the contract. Gene & Harvey Builders, Inc. v. Pennsylvania Manufacturers’ Association Insurance Co., 512 Pa. 420, 517 A.2d 910 (1986). “In construing the policy, we are mindful that ‘[p]olicy clauses providing coverage are interpreted in a manner which affords the greatest possible protection to

the insured____’ The insured’s reasonable expectations are the focal point in reading the contract language.” Geisler v. Motorists Mutual Ins. Co., 382 Pa.Super. 622, 626, 556 A.2d 391, 393 (1989) (citation omitted). “Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement.” Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (citation omitted).

Here, the trial court found that the relevant documents consist of the policy declarations sheet, the substantive provisions of the policy and an endorsement to the policy.

The definitional section of the policy states:

(5) “Declarations” means the sheet which shows the coverages you have chosen for each car we insure. It also shows the premium for those coverages and the limits of protection. Your policy is not complete without this sheet.

R.R. at A-26. Item 5 of the declarations sheet includes a column entitled “Uninsured/Underinsured Motorists” which sets the limits for bodily injury for each insured vehicle at $15,000 for each person and $30,000 for each accident, thus indicating that the Kovaleskis purchased coverage for underinsured motorists. See R.R. at A-23, A-24.

While the Kovaleskis agree that their policy included coverage for underinsured motorists, the Kovaleskis contend that the trial court erred in finding that the conditions of the coverage should be determined by reference to endorsement A-MMM-BC3 which is listed as an endorsement to the policy on the declarations sheet. The Kovaleskis claim that the endorsement was not part of the policy on the date of the accident. The policy period runs from June 25, 1984 to June 25, 1985. On July 6, 1984, the Kovaleskis changed their policy by cancelling coverage for one of the three vehicles originally insured. A supplemental declarations sheet which was issued pursuant to the change reflected the removal of the third vehicle from the policy and showed the corresponding premium reduction.

The Kovaleskis claim that because Item 6 of the original declarations sheet references the endorsement and Item 6 of the supplemental declarations sheet does not reference the endorsement, the endorsement may not be considered part of the policy. A close examination of the revised sheet, however, shows that the revised sheet should be read in conjunction with the original. In the upper right hand section of the revision are two boxes that do not appear on the original declarations sheet. One of the boxes notes the effective date of the change and the other box references by code letters those items that have been changed. According to the “Change Code” box, the only items that were changed were Items 3 and 4, corresponding to the change code letters C and D. Item 3 lists the lienholder for the insured vehicles and Item 4 is a description of the cars insured under the policy. Importantly, the change code box does not indicate that Item 6 concerning endorsements, which would correspond to code letter I, has been changed. Also, unlike the original declarations sheet, the revision does not set forth the breakdown of the premiums for each vehicle insured according to the type of coverage, but instead merely contains a “Premium Change” box showing the amount of the premium reduction and the remaining premium balance. There is no evidence to suggest that the endorsement was eliminated from the policy, or that this revised sheet was intended to supplant the original declarations sheet, rather than supplement the original.

We note that the endorsement was submitted as part of the policy in the Stipulation of Facts, see Stipulation of Facts at 5, 12-13; the trial court did not err, therefore, in considering the endorsement as part of the record in this case. We find that the endorsement was part of the policy in effect at the time of the accident, as the original declarations sheet covering the period of June 25, 1984 to June 25, 1985 references the endorsement, and the revised declaration sheet merely reflects the Kovaleskis’ requested change that the Chevy pickup be removed from the policy. The trial court properly considered the endorsement as part of the policy.

Endorsement A-MMM-BC3 provides:

The following is added to the definition of an uninsured motor vehicle:
(4) an underinsured motor vehicle. An underinsured motor vehicle is one that has lower limits (from all liability policies—including other than motor vehicle insurance, bonds, securities or self-insurance plans applicable at the time of the accident) than the limits applicable to one car under this Uninsured Motorists Coverage.

R.R. at A-35.

The policy includes a section entitled “Uninsured Motorists Coverage” which provides that the insurer will pay bodily injury damages that the insured is entitled to recover from the owner or driver of an uninsured motor vehicle. R.R. at A-30. The policy also contains a “no stacking” provision which reads:

Our duty to pay for damages to anyone we protect is limited by the amounts shown on the Declarations for insurance to one car. The insuring of more than one person or car under this coverage does not increase the limits of protection. No one will ever be entitled to more than the highest limit for “each person” applicable to any one motor vehicle under this or any other policy we issue which applies to the injury.
The amount shown for “each person” is the limit of protection for all damages because of injury to one person as the result of one accident. The amount shown for “each accident” is the total limit of protection for all injuries to two or more persons____

R.R. at A-31.

Because the endorsement expands the definition of uninsured motor vehicle to include underinsured motor vehicles as defined above, the trial court properly determined, from a reading of the entire policy, that the Kovaleskis’ insurance policy included coverage for accidents involving under-insured motorists.

The terms of the coverage for underinsured motorists are defined by the endorsement provision and the basic folio provisions on uninsured motorists coverage. Specifically, the policy provisions allow for payment of bodily injury damages arising out of the ownership or use of a motor vehicle which has lower insurance policy limits than the limits for coverage for uninsured motorists applicable to one car as set forth in the declarations sheet. Here, the policy limit of the third party tortfeasor was $25,000, the amount paid in settlement of Mrs. Kovaleski’s claim. The portion of the settlement figure attributable to bodily injury damages was $23,463.00. According to the declarations sheet, the Kovaleskis’ policy provides coverage for uninsured motorists for each car in the amount of $15,000.00 per person up to a maximum of $30,000.00 per accident. Because the policy limit of the third party tortfeasor ($25,-000.00) was greater than the limits of the Kovaleskis’ uninsured motorists coverage ($15,000.00 per person) for one car, the trial court determined that the Kovaleskis were not entitled to any further recovery under the underinsured motorists provisions of their policy with Erie Insurance.

The Kovaleskis argue that because the provisions of the insurance policy are ambiguous, they should be permitted to stack the limits of liability available for the two vehicles covered by the policy so that the total amount of insurance coverage applicable to Mrs. Kovaleski’s accident would be $30,000.00 per person with a maximum of $60,-000. 00 per accident. Hence, the $25,000.00 limit of the third party tortfeasor’s policy would be lower than the limits of the uninsured motorists coverage of the Kovaleskis’ policy, and the underinsured motorists provision would come into play. The Kovaleskis alternatively argue that notwithstanding the language of the endorsement and the no stacking provision of the policy, they should be permitted to stack coverages because of caselaw which invalidates no stacking clauses in insurance policies as contrary to public policy.

Under decisional law in Pennsylvania, the enforceability of no stacking provisions varies, depending upon whether the claim is based upon uninsured motorists coverage or underinsured motorists coverage, and whether the case is governed by the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §§ 1701, et seq. (the MVFRL).

Clauses prohibiting accumulation of uninsured motorists coverages have been held to be void as violative of the purposes and policies underlying the Uninsured Motorist Act, which requires all insurance policies to include uninsured motorists coverage. 40 Pa.S. § 2000(a). Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). Policy provisions which prohibit stacking of underinsurance coverage within a single policy are not violative of public policy, provided the case is not governed by a statute which requires that motor vehicle liability policies contain underinsured motorists coverage. Votedian v. General Accident Fire & Life Assurance Corp., 330 Pa.Super. 13, 18, 478 A.2d 1324, 1327 (1984). Thus, where the case is governed by the now defunct No-Fault Motor Vehicle Insurance Act (No-Fault Act), a policy limitation which prevents stacking of the underinsured motorists benefits violates no public policy. Votedian, supra, 330 Pa.Superior Ct. at 19-20, 478 A.2d at 1327. In Votedian, we held that where the legislature has not established a policy which mandates that insurers provide underinsured motorists coverage, the terms and limitations of the underinsurance coverage “are not controlled by statute or by public policy but by the agreement reached by the parties.” Id., 330 Pa.Superior Ct. at 18-19, 478 A.2d at 1327.

Where a case arises under the provisions of the MVFRL, a provision which prohibits stacking of the under-insurance coverages of two vehicles insured under the policy is void as violative of public policy as expressed in the MVFRL, because the MVFRL requires that motor vehicle liability insurance policies contain both uninsured and underinsured motorists coverage. 75 Pa.C.S.A. § 1731(a). Tallman v. Aetna Casualty and Surety Co., 372 Pa.Super. 593, 539 A.2d 1354, allocatur denied 520 Pa. 607, 553 A.2d 969 (1988).

Because this case is governed by the No-Fault Act, rather than the MVFRL, the disposition of this case depends upon whether the policy coverage at issue may be properly classified as uninsured motorists coverage or underinsured motorists coverage. In this respect, we find the case of Geisler v. Motorists Mutual Insurance Co., supra, to be controlling. In Geisler, we held that where the policy at issue is drafted in an ambiguous manner such that it reasonably appears that an underinsured motorist is to be “treated” as an uninsured motorist, the no stacking clause in the policy is unenforceable. Id., 382 Pa.Superior Ct. at 628-31, 556 A.2d at 394-96.

In Geisler, the father and son appellees had suffered injuries in excess of the $35,000 maximum limit of liability coverage under the tortfeasor’s policy, and after receiving that amount from the tortfeasor, sought to recover uninsured motorists benefits from their own insurer. Id., 382 Pa.Superior Ct. at 624-25, 556 A.2d at 393. The limit of liability for uninsured motorists benefits under the appellees’ policy was $50,000 per person with a maximum of $100,000 per accident; the policy covered two automobiles. In resolving the question of whether the policy’s no stacking clause was enforceable, the Court first determined whether uninsured or underinsured benefits were at issue. The sole reference to underinsured motorists coverage in the Geisler policy was contained in an amendment to the policy, similar to the endorsement in the Kovaleskis’ policy, which expanded the term uninsured motor vehicle to include underinsured motor vehicles:

POLICY PROVISION AMENDMENTS
sj! sfc sj« s]:
PART C-UNINSURED MOTORISTS COVERAGE 1. When the term uninsured motor vehicle is used in Part C, it shall also include underinsured motor vehicle as defined below.
“Underinsured motor vehicle” means a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is less than the limit of liability for this coverage.

Geisler, supra, 382 Pa.Superior Ct. at 629, 556 A.2d at 395. The Court found that because the insurance company had chosen to have the specific coverage for underinsured motorists “subsumed” within the general coverage for uninsured motorists, rather than separated from the uninsured coverage, the Geislers were seeking uninsured motorists benefits and therefore they were allowed to stack coverages. Id., 382 Pa.Superior Ct. at 630, 556 A.2d at 395. In reaching this holding, the Court relied on the fact that the only reference to underinsured motorists coverage was in the amendment. Id. The declaration sheet did not list any underinsurance coverage, no separate premium was charged for the underinsured motorists benefits, the “quick reference” guide made reference to uninsured motorists coverage and the no-stacking clause referred only to general uninsured coverage. Id.

Although there are some differences between the policy at issue here and the policy in Geisler, the strong similarities between the structure and wording of the two policies leads us to conclude that under the Kovaleski policy, under-insured motorists are to be treated as uninsured motorists, and thus the Kovaleskis are entitled to stack the coverages.

With the exception of a reference to underinsured motorists coverage in the declarations sheet, the only part of the Kovaleski policy relating to underinsurance coverage is contained in the Policy Change Endorsement. As in Geisler, the policy and endorsement are drafted in such a manner that coverage is provided for uninsured motorists, with the definition of uninsured motor vehicle being expanded to include underinsured motor vehicle. Under the endorsement provision, underinsured motor vehicles are to be included within the category of uninsured vehicles. Similar to the policy in Geisler, the no stacking provision at issue here is included within the section of the policy dealing with uninsured motorists coverage, and the provision makes no reference to underinsured motorists coverage.

No separate premium was charged for the Kovaleskis’ underinsured motorists coverage. Although the declarations sheet contains a column entitled “Uninsured/Underinsured Motorists,” the premium charge which corresponds to this coverage is not divided according to uninsured and underinsured benefits. We also note that the nine dollar ($9.00) premium for the uninsured/underinsured motorists coverage is the same amount as the premium charged for uninsured motorists coverage before the underinsured motorists coverage was added to the policy. See R.R. at A-20, A-22, A-23. Although the “quick reference” guide makes various references to uninsured motorists coverage, the guide contains no reference to coverage for underinsured motorists.

In holding that the insureds in Geisler were entitled to stack coverages, Judge Hoffman reasoned as follows:

As we have noted above, the insured’s reasonable expectations are the focal point in interpreting contract language____ Here, in light of the contractual structure outlined above, an insured could reasonably have understood the amendment to mean merely that appellant had expanded the uninsured motorists coverage to include underinsured motorists. Thus, even though their insurer was not required to provide underinsurance coverage, and even though their insurer could limit underinsurance coverage with a no stacking provision, appellees could reasonably have concluded that, under the peculiar language in their policy, if they were injured by an underinsured driver they were entitled to all of the benefits allowed by statute and decisional law to those seeking uninsured benefits, including stacking. We recognize, of course, that the amendment lends itself to a contrary, and equally reasonable interpretation: i.e., because the terms “uninsured” and “underinsured” are separately defined, and obviously refer to different factual situations, the under-insured provision must be treated as a separate and distinct coverage. Because the meaning of the amendment is at best ambiguous, ..., we must construe the provision in favor of the insured and against the insurer.

Geisler, supra, 382 Pa.Superior Ct. at 631, 556 A.2d at 396 (citations omitted) (footnote omitted).

In accordance with the holding and reasoning set forth in Geisler, we conclude that under the language of the policy at issue in this case, the Kovaleskis could reasonably have concluded that the endorsement merely expanded the uninsured motorists benefits to include underinsurance benefits, and that in the event that they sought underinsurance coverage, they would be entitled to all of the benefits afforded to uninsured motorists under Pennsylvania case-law, including stacking. Because we conclude that stacking is appropriate in this case, the applicable policy limit for uninsured motorists coverage under the Kovaleski policy is $30,000.00. The tortfeasor’s motor vehicle had a liability limit of $25,000.00, which is lower than the limits applicable to one car under the uninsured motorists coverage. Thus, according to the endorsement definition of “underinsured motor vehicle,” the Kovaleskis are entitled to additional coverage under the uninsured motorists provisions of the policy.

The Kovaleskis also argue that the “set-off” provision of the policy which requires that uninsured motorists payments be reduced by the amount paid by a third party tortfeasor is invalid because the clause prevents the Kovaleskis from recovering any underinsurance payments. The set-off clause reads:

Uninsured Motorists payments will be reduced by:
(1) the amounts paid by or for those liable for bodily injury to anyone we protect.

R.R. at A-31.

In several cases, we have upheld the validity and enforceability of clauses which require a set-off of underinsurance payments for sums previously paid by persons liable for bodily injury damages. See Geisler, supra; Bateman v. Motorists Mutual Ins. Co., 377 Pa.Super. 400, 547 A.2d 428 (1988); Sparler v. Fireman’s Ins. Co. of Newark, N.J., 360 Pa.Super. 597, 521 A.2d 433 (1987) (en banc); Votedian, supra. In keeping with this line of cases, we interpret the set-off provision contained in the Kovaleskis’ policy to require that the $30,000.00 limit on underinsurance benefits be reduced by $23,463.00, the amount received by Mrs. Kovaleski from the tortfeasor in compensation for her bodily injuries. Mrs. Kovaleski is therefore entitled to recover up to $6,537.00 in underinsurance benefits from Erie Insurance. The Stipulation of Facts does not indicate the extent of the injuries suffered by Mrs. Kovaleski. If Mrs. Kovaleski’s injuries amount to greater than $30,000, then she is entitled to recover the full $6,537.00. If Mrs. Kovaleski’s damages are less than $30,000.00, then she may recover an amount equal to her actual damages minus the $23,463.00 set off. See Geisler, supra, 382 Pa.Super. at 633, 556 A.2d at 397.

For the foregoing reasons, we reverse the judgment and remand this case for further proceedings consistent with this decision.

Reversed and remanded. Jurisdiction is relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq., repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . We note that under Erie Insurance’s interpretation of the Kovaleskis’ policy, the Kovaleskis would rarely, if ever, be entitled to receive underinsurance coverage. The No-Fault Act required all owners of motor vehicles registered or operated in Pennsylvania to obtain liability insurance for the payment of sums up to a total of $30,000 per accident, subject to a sublimit of $15,000 for bodily injury damages arising out of injury to one person. 40 P.S. § 1009.104(a). Without stacking, the tortfeasor’s motor vehicle would never fit within the definition of “underinsured" set forth in the endorsement. Under the No-Fault Act, the tortfeasor’s lower limits could not be lower than $15,000 per person, $30,000 per accident. The endorsement defines an underinsured motor vehicle as one with lower limits than the limits applicable to one car under the uninsured motorists coverage. Without stacking, the Kovaleskis’ uninsured motorists limits are $15,-000 per person up to a maximum of $30,000 per accident. Thus, provided the tortfeasor complied with the No-Fault Act, the tortfeasor’s limits would never be lower than the Kovaleskis’ limits for uninsured motorists coverage and the underinsurance provision would never apply.


source: Caselaw Access Project

author:
OLSZEWSKI, Judge:
      CIRILLO, President Judge,

license: Public Domain

text:
    581 A.2d 592
    Frank G. CHMURA and Eleni P. Chmura, t/d/b/a The Embroidery Works, Appellees, v. Sherry DEEGAN, an Individual, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1990.
    Filed Oct. 9, 1990.

      Richard J. Schubert, Pittsburgh, for appellant.
    George Basara, Pittsburgh, for appellees.
    Before CIRILLO, President Judge, and OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

Sherry Deegan appeals the trial court’s order preliminarily enjoining her from using, copying, disclosing, or otherwise deriving benefit from various computerized embroidery patterns developed by the Chmuras. Deegan asserts that the trial court erred in finding that the computer discs constituted trade secrets, in finding that the Chmuras had the exclusive right to use and enjoy the designs, and in finding that the trade secrets were disclosed while Deegan was an employee of the Chmuras. We find that these issues are beyond the scope of appellate review; accordingly, we affirm the trial court’s order.

Frank and Eleni Chmura own and operate The Embroidery Works, a company that creates computer embroidery designs and embroiders those designs on hats, shirts, and other soft goods. Sherry Deegan worked for the Chmuras for three years, operating the computerized embroidery machine. Deegan did not have the artistic or technical knowledge necessary to create the computer designs. In November 1988, Deegan left The Embroidery Works and set up her own shop in competition with The Embroidery Works.

At some time, Deegan obtained copies of the Chmuras’ computer disks and began using the Chmuras’ designs in her business. The Chmuras noticed products made with their programs in the marketplace and brought this action alleging theft of trade secrets, unfair competition, and unjust enrichment. They also requested a preliminary injunction to prevent Deegan from using their computer patterns. The trial court granted the injunction. Deegan appeals.

When reviewing an order granting a preliminary injunction, we do not inquire into the merits of the underlying action. Pennsylvania Interscholastic Athletic Assn. v. Geisinger, 81 Pa.Cmwlth. 421, 426, 474 A.2d 62, 65 (1984). We may examine the record only to determine whether the trial court had reasonable grounds for its order. Id. Our scope of review is particularly limited where, as here, the injunction is merely prohibitive rather than mandatory. Mazzie v. Commonwealth, 495 Pa. 128, 133, 432 A.2d 985, 988 (1981). We may reverse only if there are no grounds to support the decree or if the rule of law was palpably erroneous or misapplied. Roberts v. Board of Directors of School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975).

Deegan does not allege that there are no grounds to support the decree, nor does she allege that the rule of law was palpably erroneous or misapplied. Her arguments on appeal relate solely to the merits of the underlying action, a matter beyond the scope of review.

At best, we can view Deegan’s appeal as challenging the Chmuras’ “clear right to relief,” a necessary element for a preliminary injunction. See, e.g., T. W. Phillips Gas v. Peoples Natural Gas, 89 Pa.Cmwlth. 377, 384, 492 A.2d 776, 780 (1985). To establish a “clear right to relief,” the party seeking an injunction need not prove the merits of the underlying claim, but need only show that substantial legal questions must be resolved to determine the rights of the respective parties. Fischer v. Department of Public Welfare, 497 Pa. 267, 271, 439 A.2d 1172, 1174 (1982). This case presents many substantial legal questions, including the question whether the computer designs in this case are entitled to protection as trade secrets. Consequently, we affirm the trial court’s order.

Order affirmed.

Concurring opinion by CIRILLO, President Judge.

CIRILLO, President Judge,

concurring.

I join in the result reached by the majority, however, I write separately to clarify this court’s standard of review. When reviewing a trial court’s decree which grants a preliminary injunction, an appellate court examines the record only to determine if there are any apparently reasonable grounds for the action of the court; we will not inquire further into the merits of the case or pass upon the reasons for or against such action unless it is plain that no such grounds existed or that the rules of law relied upon were palpably wrong or clearly inapplicable. Valley Forge Historical Society v. Washington Memorial Chapel, 493 Pa. 491, 426 A.2d 1123 (1981); New Castle Orthopedic Assoc. v. Burns, 481 Pa. 460, 392 A.2d 1383 (1978); Intraworld Industries, Inc. v. Girard Trust Bank, 461 Pa. 343, 354, 336 A.2d 316, 322 (1975); Moore v. Mobil Oil Co., 331 Pa.Super. 241, 480 A.2d 1012 (1984). Thus, we need not scrutinize the trial court’s legal analysis unless there are no apparent reasonable grounds for the grant of preliminary injunctive relief. Air Products & Chemicals v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114 (1982).

Deegan argues on appeal that the trial court erred in determining that the Chmuras’ computer discs constituted trade secrets, and that they were not entitled to injunctive relief because they did not establish that the discs met the legal definition of a trade secret as stated in the Restatement of Torts § 757 (1939), and adopted by this Commonwealth. See Felmlee v. Lockett, 466 Pa. 1, 351 A.2d 273 (1976). The majority states that Deegan’s arguments relate solely to the merits of the underlying action and are therefore beyond our scope of review. Although this characterization of appellant’s arguments is correct in this case, I am compelled to add that Deegan’s misunderstanding of our standard of review was possibly prompted by cases which utilized the “closer scrutiny” level of our standard of review. See, e.g., Tyson Metal Products, Inc. v. McCann, 376 Pa.Super. 461, 546 A.2d 119 (1988); Air Products and Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114 (1982). In both of these cases, this court’s closer scrutiny was accomplished by engaging in a legal analysis of whether certain information constituted a trade secret.

In order to reach what I view as the second level of our standard of review, or “closer scrutiny,” we must first reach the conclusion that there are no apparent reasonable grounds for the grant of the preliminary injunction. A court may grant a preliminary injunction where the moving party establishes (1) that relief is necessary to prevent immediate and irreparable harm, (2) that greater injury will occur from refusing the injunction than from granting it, (3) that the injunction will restore the parties to the status quo as it existed prior to the alleged wrongful conduct, (4) the alleged wrongful conduct is actionable and the injunction is reasonably suited to abate that conduct, and (5) the right to relief is clear. Valley Forge, supra.

“A recognized purpose sought to be achieved by the issuance of a preliminary injunction is the avoidance of irreparable injury or gross injustice until the legality of the challenged action can be determined.” Fischer v. Department of Public Welfare, 497 Pa. 267, 270, 439 A.2d 1172, 1174 (1982). See also Wilkes Barre Independent Co. v. Newspaper Guild, 455 Pa. 287, 314 A.2d 251 (1974); Sameric Corp. of Market St. v. Goss, 448 Pa. 497, 295 A.2d 277 (1972); Slott v. Plastic Fabricators, Inc. 402 Pa. 433, 167 A.2d 306 (1961). Here, the Chmuras’ allegation that Deegan was misappropriating trade secrets supplied the irreparable harm requirement for the issuance of the preliminary injunction. In addition, it is clear that greater injury would result by refusing the Chmuras’ request for a preliminary injunction, than by granting it, and that the preliminary injunction does nothing more than restore the status quo as it existed prior to Deegan’s challenged act. Moreover, the activity sought to be restrained, the misappropriation of trade secrets, is actionable and a preliminary injunction is reasonably suited to abate that activity. Valley Forge, 493 Pa. at 501, 426 A.2d at 1129.

With respect to the clear right to relief requirement, I agree with the majority that the core of this dispute is whether the allegation that the computer discs are trade secrets is of sufficient substance to warrant the grant of a preliminary injunction. Fischer, 497 Pa. at 271, 439 A.2d at 1174. In Fischer, our supreme court explained that although the party requesting a preliminary injunction must demonstrate a clear right to relief, the “clear right” requirement was “not intended to mandate that one seeking a preliminary injunction establish his or her claim absolutely.” Id. In other words, where substantial legal questions must be resolved to determine the rights of the parties, the clear right to relief requirement has been satisfied. Id. The question remaining, whether the computer discs are trade secrets, is a substantial legal question which must be resolved in order to determine the rights of the respective parties, and therefore the Chmuras have met the clear right to relief requirement.

Unlike Tyson, supra, and Air Products, supra, since our first level of review allows us to conclude that the trial court’s action was warranted, closer scrutiny of the court’s action in this case is unnecessary. As such, any further inquiry into the trial court’s analysis would transcend our scope of review.


author: FORD ELLIOTT, Judge: WIEAND, Judge,

text:
    581 A.2d 595
    COMMONWEALTH of Pennsylvania v. James ELLIS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 30, 1990.
    Filed Oct. 9, 1990.

      William C. Kaczynski, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND, McEWEN, MONTEMURO, BECK, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is a direct appeal from a judgment of sentence entered on December 7, 1987, in the Court of Common Pleas of Allegheny County. On appeal, appellant alleges numerous trial court errors as well as claims of ineffective assistance of counsel. Following an extensive review of the record, the parties’ arguments, and the applicable law, we affirm the judgment of sentence.

Appellant was arrested on November 13, 1985, and charged with one count of robbery and one count of driving while under the influence of alcohol. On September 4, 1986, appellant appeared before the Honorable Walter R. Little for a suppression hearing and an inconclusive plea. On January 6, 1987, appellant proceeded to a jury trial before the Honorable Raymond A. Novak. Appellant was convicted of the robbery charge on January 8, 1987. Post-trial motions were filed and denied. Appellant was sentenced to a term of imprisonment of five to ten years on December 7, 1987. This timely appeal followed.

The facts of this case are summarized as follows. On November 13, 1985, Mary Killer-Walker tended bar in her husband’s after hours club into the early morning hours. Walker closed the bar around 3:00 a.m. and took the bar’s receipts, approximately $300.00 in a Mellon Bank bag, home with her. While driving home Walker noticed a car following her. As she pulled into her driveway, the other car pulled in also, thus blocking her car. Walker leaned on her horn as a man approached her car and put what she thought was a shotgun to her window. As he yelled “give it up,” Walker jumped out of her car on the passenger side and ran to her neighbor’s house for help. The man took Walker’s purse and left in an old, rusted burgundy Chevy. Soon thereafter, Walker described her assailant to the police as an old black man with gray hair and glasses wearing blue jeans. Walker told police that she knew that this man was the same man with whom she had had an altercation earlier that morning in the club.

Pursuant to a tip, police drove to the Uptown section of Pittsburgh with Walker’s description of her assailant. While talking to another officer, the police spotted a burgundy Chevy parked at a nearby gas station. Police observed appellant chasing two youths down the street. An officer walked over to the burgundy Chevy and looked inside the car through the open door. He noticed a large purse in the lighted interior of the car with a bank bag sticking out of it. As the officer looked inside the purse, he found Walker’s identification in it. Appellant approached the police claiming that the two youths had robbed him. The police asked appellant if the Chevy was his and as he answered affirmatively, he was placed under arrest. Later, Walker identified appellant as her assailant and the purse as hers.

Before addressing the substantive issues presented on appeal, we must decide an initial procedural question: whether and under what circumstances this court will consider pro se briefs in criminal cases where appellant is represented by counsel on appeal. Presently, appointed counsel for appellant has filed a brief which raises seven issues for this court’s review and appellant has filed a separate brief presenting four additional claims. Upon careful scrutiny, the basis for relief presented in both briefs is not dissimilar. This court’s practiced pro se policy is as follows:

All pro se petitions, motions, and briefs shall be filed in this Court and docketed by the Prothonotary. If the litigant himself or herself files a petition, motion, or brief and is represented by counsel, copies of the said document filed shall be forwarded to his or her counsel of record.

20 Pa.Bull. 3147 (1990) (to be codified at 210 Pa.Code Ch. 65 § 65.24).

Initially, any resolution of this procedural issue necessarily must involve an examination of the basic constitutional right of appeal and right to counsel. Historically, the United States Supreme Court held that the right to appeal from a criminal conviction was not absolute absent a state constitutional or statutory provision allowing such review. See McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). Although the Supreme Court has broadened and defined its role of protecting constitutional guarantees over the past century by choosing to review certain state criminal convictions, the Pennsylvania Constitution always has guaranteed defendants the right of appeal. Pa. Const, art. 5 § 9 states:

There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.

In conjunction with the right of appeal, the Pennsylvania Constitution affords the defendant in a criminal prosecution the right to an attorney. Pa. Const, art. 1 § 9. Moreover, it is well recognized that the United States Constitution provides the same right. U.S.C. Const. Amend. 6. However, growing out of this right, the United States Supreme Court has ruled that an individual has the right to self-representation in a state criminal trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant may exercise this right if he renders an express knowing and intelligent waiver of his right to counsel. Faretta v. California, supra. In compliance with the Supreme Court’s ruling, the Pennsylvania Rules of Criminal Procedure have embodied the policy and procedure of self-representation at the trial court level. Pa.R.Crim.P. 318; see Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978).

At the appellate level, we have permitted, and at times encouraged, a criminal defendant to prosecute his own case. See Commonwealth v. Maple, 385 Pa.Super. 14, 559 A.2d 953 (1989); Commonwealth v. McDowell, 220 Pa.Super. 449, 289 A.2d 245 (1972). However, the more pertinent question concerns the right of self-representation together with counseled representation at the appellate level. This circumstance is better known as “hybrid” representation. In Commonwealth v. Williams, 270 Pa.Super. 27, 35, 410 A.2d 880, 883 (1979), we held that “there is no right, deriving from either the United States Constitution or [the] Constitution of Pennsylvania, for a criminal defendant to proceed as co-counsel in his own defense.” See Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985) cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986); cf. Pa.R.Crim.P. 318(d) (upon acceptance of defendant’s waiver of counsel, standby counsel may be appointed to give the defendant consultation and advice); Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976); Hall v. Dorsey, 534 F.Supp. 507, 509 (E.D.Pa.1982) (“the accused has the right to be heard by himself; the accused has the right to be heard by his counsel; but not both.”).

As this “hybrid” representation per se is not tolerated at the common pleas level, we see no distinction, and today would not choose to define one, which would allow for a different policy at the appellate level. Generally, when confronted with this issue in the past this court would not consider the separate briefs of counsel and appellant, but remanded the matter to the trial court to conduct a hearing in order for appellant to choose whether he wished to represent himself or remain counseled on appeal. Commonwealth v. Kibler, 294 Pa.Super. 30, 439 A.2d 734 (1982); see Commonwealth v. Knapp, 374 Pa.Super. 160, 542 A.2d 546 (1988); Commonwealth v. Henry, 341 Pa.Super. 146, 491 A.2d 193 (1985); Commonwealth v. Moore, 321 Pa.Super. 1, 467 A.2d 862 (1983).

Clearly, there are obvious problems which surface when an appellant files a pro se brief and counsel has filed one as well. First of all, at the heart of the right to counsel on appeal is appellant’s entitlement to a professional evaluation of his case. As an officer of the court, appellant’s counsel is required to present arguments to the appellate tribunal which she believes possess merit. Smith v. Commonwealth of Pennsylvania Board of Probation and Parole, 524 Pa. 500, 574 A.2d 558 (1990). While fulfilling her duties as an officer of the court, counsel also must meet her obligation of fidelity to her client. In doing so, counsel must present issues which have been preserved properly or perhaps be prepared to argue the viability of issues that have not been preserved due to prior counsel’s ineffectiveness. If counsel is not afforded discretion as to which issues to present to the appellate court, then the attorney-client relationship is prejudiced. For example, counsel and the pro se could be arguing different issues to the appellate court. Thus, counsel and/or the pro se could be undermining appellant’s success for the grant of appellate relief by asking this court to referee their opposing points. Moreover, counsel’s defense strategy and trial tactics may prove to be fruitless if appellant files a pro se brief alleging appellate counsel’s ineffectiveness either at trial or on appeal.

Further, under no other circumstances do we allow counsel and her client to present opposing defense arguments to this court. Even in the circumstance of permitting counsel to withdraw from her client’s case, we do not allow counsel to “sandbag” her client. A proper Anders brief requesting withdrawal requires counsel to petition this court and state that after making a conscientious examination of the record and interviewing appellant, she has determined that the appeal is wholly frivolous. She must file a brief referring to anything in the record that arguably might support the appeal, but the brief must not resemble a no-merit letter or an amicus curiae brief. Finally, counsel must furnish a copy of the brief to appellant informing him of his right to raise any additional points that he deems worthy of this court’s attention. See Commonwealth v. McFarland, 386 Pa.Super. 91, 562 A.2d 369 (1989). Clearly, even in this circumstance we permit counsel to fulfill her obligation as an officer to the court by not raising frivolous issues for appellate review, and to maintain her fidelity to her client by not presenting a brief in support of affirmance. To do anything else would only drive a wedge between counsel and client, and place counsel between the proverbial—rock and a hard place. In essence, allowing “hybrid” representation per se to occur at the appellate level promotes the possibility of an adversarial relationship developing between attorney and client where once existed a relationship built upon confidentiality and trust.

Further, the administrative burdens placed upon the court as well as the Commonwealth in addressing the pro se’s brief would lead to nothing other than procedural confusion and delay in the appeal process. We agree with the analysis enunciated by former President Judge Spaeth in his Concurring and Dissenting Opinion in Commonwealth v. Almeida, 306 Pa.Super. 197, 215-16, 452 A.2d 512, 520-21 (1982) when he stated:

In the opinion I wrote as a member of the panel, I said that I saw no reason not to consider appellant’s pro se brief, adding that if we were to refuse to consider it, “most likely” appellant would file a petition for post-conviction relief alleging counsel’s ineffectiveness “for failing to make the argument he tried to make in his pro se brief. Thus it will avoid undue procedural confusion, and also avoid delay, to address the issue presented in appellant’s pro se brief now.” Especially did I think this so since the pro se brief “not only does not pose any danger to appellant, but benefits him by presenting another argument on his behalf.” Panel Slip op. at 16 n. 7.
On reargument, the Commonwealth has persuaded me that I was wrong, and that “[t]his Court should announce that it will not consider pro se pleadings until these are reviewed by counsel.” Brief for Commonwealth at 16. On reflection, I’ve concluded that the distinction between pro se arguments that “benefit[ ]” an appellant and those that pose “[a] danger” to him is unsound. Whatever the nature of the argument, by considering it we may, as the Commonwealth suggests, encourage other appellants to submit pro se briefs, which the Commonwealth “will have to decipher and respond to,” thereby “creating] a shadow docket of hundreds of appeals.” Id. It is not unusual for a judge to receive a pro se letter or petition of some sort from a defendant. The general practice is for the judge, or the prothonotary, to refer the letter to counsel who represents the defendant. I think we should follow the same practice with respect to pro se briefs, leaving it to the defendant to file a petition for post-conviction relief if, after we have decided his appeal, he continues to believe that counsel should have made, and we should have responded to, the argument he made pro se. It may be that sometimes this will, as I suggested in my opinion as a member of the panel, unduly prolong litigation. But on balance, I think, it will result in a more orderly and therefore more efficient administration of justice; and in most cases, at least, the defendant will not be prejudiced, for counsel will be able to consider the defendant’s pro se argument, and if it has any merit, present it to us or the lower court in one way or another.

A little more than fifty percent of all of this court’s appeals are of a criminal nature. To effectuate a policy of addressing pro se briefs in counseled appeals would enable this “shadow docket of appeals” to take on an ominous shape. This court’s institution of such a policy virtually would stymie any conviction for and practice of an efficient administration of appellate justice. In effect, such practice could cause the breakdown of the criminal appeal’s process thereby resulting in painstakingly long delays and the denial of a careful appellate review for the parties. Accordingly, we will not institute nor accept such a policy and practice.

Having held so, we need to reexamine a recent decision from a panel of this court. In Commonwealth v. Shaw, 379 Pa.Super. 491, 550 A.2d 555 (1988), the panel believed that they had to address appellant’s pro se arguments due to the Pennsylvania Supreme Court’s per curiam order in Commonwealth v. Gaerttner, 518 Pa. 452, 543 A.2d 1091 (1988), which remanded a case to this court for consideration of the issues raised in the pro se brief. For the following reasons, we no longer abide by the Shaw principle concerning pro se briefs. First of all, we believe that Gaerttner can be limited to its facts. During his trial, defendant Gaerttner represented himself with standby counsel in the wings to offer assistance and advice when needed. Although counsel was appointed pursuant to his request for the post-trial stage, Gaerttner filed pro se post-trial motions. Following sentencing and the withdrawal of appellate counsel, Gaerttner informed this court that he wished to proceed pro se. After filing his pro se brief and the Commonwealth filing a responsive brief, Gaerttner requested the appointment of counsel. Upon remand, the trial court appointed appellate counsel and a supplemental appellant’s brief was filed. This court reviewed the counseled brief on appeal and did not review appellant’s pro se issues. In a per curiam order, the Pennsylvania Supreme Court remanded the case to our court for a review of the pro se issues. Commonwealth v. Gaerttner, supra. A fair interpretation of this order reflects that the supreme court recognized that the pro se had expressed a clear intention for self-representation at various stages of his case.

Although we are aware of Commonwealth v. Gretz, 520 Pa. 324, 554 A.2d 19 (1989), a brief per curiam order stating that such orders constitute precedent, we recognize the problems that are apparent from such a holding. Essentially, an unexplained per curiam affirmance or reversal fails to inform the bench and the bar of the precise questions adjudicated, and the actual precedent established. For example, the Supreme Court in Gaerttner did not state that its mandate in that case was based upon a specific rule of law, nor did it authorize “hybrid” representation on appeal. It did not overrule a long line of cases from this court which hold that a pro se brief and a counseled brief will not be reviewed together on appeal. Commonwealth v. Kibler, supra; Commonwealth v. Knapp, supra. In Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), a supreme court case filed after Gaerttner, the court considered a pro se supplemental brief filed in compliance with Pa.R.A.P. 2501(a), Post-Submission Communications, but did not cite Gaerttner as support for considering the pro se issue, nor did it announce a rule recognizing the right in every appellate case to hybrid representation. The court simply acted in the interests of justice given the exceptional circumstances, without establishing a broad procedural rule. This is the context within which we as an intermediate appellate court must read Gaerttner.

Based on the foregoing, and our desire to balance a pro se’s constitutional rights and the apparent administrative burdens in an hybrid appeal, our revisit to the pro se policy of this court leads us to hold as follows. We will accept for filing pro se appellate briefs, but we will not review a pro se brief if a counseled brief has been filed, either before, simultaneously with, or after the pro se, due to the judicial confusion and delay that ensues. Because we refuse to play a timing game or that of a mind reader, trying to determine what the pro se really wants, we see no difference as to when the pro se brief is filed in relation to the counseled brief. If a pro se brief is filed in a counseled appeal, we direct the prothonotary to send the pro se brief on to counsel who is best able to determine in her professional judgment which of the pro se’s issues should be presented for our review. Counsel may argue such pertinent issues in her brief to the court, or if the appellate brief has been filed, she may file a supplemental brief addressing those same issues. If the pro se brief alleges ineffectiveness of appellate counsel or an affirmative desire to be heard pro se, we direct counsel to petition this court to remand the case to the trial court so that it may conduct a full hearing in order to determine appellant’s knowing and intelligent waiver of his right to appellate counsel, and of his desire to proceed pro se, or in the case of ineffectiveness, an appointment of new appellate counsel.

Instantly, appellant filed a pro se notice of appeal, an application for leave to file and proceed in forma pauperis, and for appointment of counsel on December 14, 1987. On May 26, 1988, appellant filed another pro se motion for the appointment of new counsel. On June 10, 1988, we entered a per curiam order remanding this appeal to the trial court for the appointment of new counsel. Present counsel was appointed on June 22, 1988, to represent appellant on appeal. Appellant’s counsel filed a brief on October 17, 1988, but a stipulation in the record reveals that the Commonwealth and appellant’s counsel received a copy of the pro se’s brief on or about September 30, 1988. Our prothonotary has docketed appellant’s pro se brief as being filed October 17,1988, the same day as counsel. This appeal was argued before a panel of this court on January 26, 1989. However, prior to a decision from the panel, this case was certified to the full court for a decision on the pro se matter.

In keeping with our pro se policy, as appellant is represented by counsel on appeal, and counsel has been provided a copy of appellant’s pro se brief, and has not filed a supplemental brief, we will review counsel’s brief on appeal. Accordingly, appellant raises the following arguments for our review.

I. Whether the trial court erred in denying trial counsel’s request for continuance, thereby preventing the appellant from obtaining a copy of the suppression transcript for use in impeaching the sole eyewitness, who had made material inconsistent statements, and alternatively, whether trial counsel was ineffective in failing to obtain said transcript in a timely manner.
II. Whether the trial court erred in ignoring and failing to honor a prior order of the suppression court which had reduced the grade of robbery charged from felony one to felony three, and, alternatively, whether prior counsel, were ineffective for failing to pursue this issue.
III. Whether the appellant’s trial counsel was ineffective in failing to investigate and pursue at trial a defense of mental infirmity due to intoxication, given the obvious state of his intoxication at the time of his arrest.
IV. Whether the trial court erred in admitting into evidence a bumper jack found in appellant’s car at the time of his arrest, where there was absolutely no evidence that a bumper jack had been seen or used in the crime charged.
V. Whether the appellant was denied the effective assistance of trial counsel by virtue of said counsel’s failure to object to a knowingly false and misleading statement made by the prosecutor in her closing argument, which had the clear effect of suggesting prior criminal activity, was untrue, and unfairly disparaged appellant’s character.
VI. Whether the trial court erred in failing to strike testimony of a police officer as to his belief in the appellant’s guilt.
VII. Whether trial counsel was ineffective in failing to present a meaningful and advocate-like closing argument, where said argument was merely perfunctory and neutral, and whether post-trial counsel was ineffective for not preserving this issue.

Initially, appellant asserts that the trial court erred in denying his motion for a continuance thereby precluding him from effectively impeaching the only eyewitness in the case. Further, appellant avers that trial counsel was ineffective for failing to secure a suppression hearing transcript in a timely fashion. It is well-settled that “the refusal to grant a continuance to enable defense counsel to obtain a transcript of the suppression hearing for use in cross-examination at trial is grounds for reversal only when a defendant can show that he was actually prejudiced by that refusal.” Commonwealth v. Johnson, 291 Pa.Super. 566, 577, 436 A.2d 645, 651 (1981), citing Commonwealth v. McKelvie, 471 Pa. 541, 370 A.2d 1155 (1977). At the time of appellant’s trial on January 7, 1987, the September 4, 1986 suppression hearing transcript was not available for use as an impeachment tool. Due to this, the defense requested a continuance in order to obtain a transcript. The trial court denied the request because the Commonwealth stipulated to the fact that the victim’s testimony at the suppression hearing concerning which side of her car the assailant approached first was inconsistent. Presently, appellant argues that not only was this stipulation insufficient, but there were other inconsistent statements as well.

In addition to the stipulated inconsistency, appellant asserts four other inconsistencies between the victim’s suppression hearing testimony and her eventual trial testimony. They are: (1) whether the victim gave a description oí the assailant’s clothing to the police; (2) whether or not the object the assailant leveled at the victim outside the car was a shotgun; (3) where the victim’s car was located during the episode, and (4) whether appellant was seated in the back seat of the police car when the victim identified him. Appellant avers that these material inconsistencies in the victim’s testimony, coupled with his inability to impeach her, prejudiced him.

Instantly, appellant was scheduled for trial before the Honorable James F. Clarke on May 14, 1986, but Judge Clarke recused himself on August 8, 1986. As the case was transferred to the Honorable Walter A. Little, trial was scheduled for September 4, 1986. A suppression hearing was commenced that day, but ended when appellant expressed his desire to plea. However, appellant decided not to plea and the case was transferred to the Honorable Raymond A. Novak. Appellant appeared before the court on September 8, 1986, a defense continuance was requested and granted due to counsel’s inability to proceed. Appellant’s case was rescheduled for trial on January 6, 1987. During a pre-trial motion that day, the defense requested a continuance, but was denied relief. Following this denial, the trial court conducted a new suppression hearing. Appellant asserts that the denial of his request deprived him of the opportunity to impeach fully the victim’s testimony.

First, appellant avers that the victim’s testimony concerning which side of her car appellant approached her was not adequately covered in the stipulation. We disagree. Our review of the record reveals that the victim’s inconsistent testimony concerning appellant’s approach of her car was presented clearly to the jury. In fact, on cross-examination, the victim conceded that there was a conflict in her testimony. Later she explained that this was due to her confusion and inexperience as a witness. However, she did not deny having stated the conflicting testimony and the jury was well aware of the circumstances surrounding this testimony. Consequently, we cannot understand how appellant was prejudiced thereby.

Similarly at trial, the victim testified that appellant put what she thought was a shotgun to her car window. However, during the initial suppression hearing, the victim was inconclusive as to what appellant was holding. During the trial, Judge Novak read into the record a combined summarization of the victim’s testimony as given by Judge Little and the prosecutor in order to facilitate the defense in cross-examining the victim as to inconsistencies in her testimony. Once again all testimony was presented to the jury during trial in order to help them determine the credibility of all the witnesses. Clearly, appellant was not prejudiced by not having the suppression hearing transcript.

Appellant’s argument concerning the victim’s inconsistency as to the location of her car is also devoid of merit. During the trial, the jury heard testimony concerning the victim’s account of the robbery from the initial suppression hearing as well as on direct and cross-examination at trial. The testimony revealed that while the victim was driving home she was followed into her driveway by another car. After running from her assailant and seeking assistance, the victim returned to her car to find that it had been moved from the previous location. Upon our review of the record, we do not find that the trial court’s refusal to grant the continuance prejudiced appellant in this regard.

Appellant questions the victim’s suppression testimony of whether he was seated in the backseat of the police vehicle when she identified him as her assailant, because a police officer testified that appellant was outside the police car when he was identified by the victim. This contradiction of accounts concerning appellant’s location either in or outside the police car occurred again during the new suppression hearing prior to trial. Consequently, defense counsel’s lack of the initial suppression transcript was no impediment to cross-examination on this subject at trial. Accordingly, appellant was not prejudiced.

Finally, appellant asserts that the victim testified at the initial suppression hearing that she did not describe her assailant’s clothing. At trial the victim testified that she told the police that he wore blue jeans. The police officer who arrived minutes after the robbery testified, at the new suppression hearing and at trial, that when he interviewed the victim she described her assailant as wearing blue jeans. Assuming that this lone and popular article of clothing constitutes a description of appellant’s clothing, then a contradiction exists. However, given the fact that the police officer who initially interviewed the victim following the robbery testified that the victim described her assailant as wearing blue jeans, and the description of the clothing was not so distinctive so as to stand out from other clothing styles, we cannot hold that appellant was prejudiced in this regard. As we have found each of appellant’s claims devoid of merit, we cannot hold trial counsel ineffective for failing to pursue a baseless claim. Commonwealth v. Tavares, 382 Pa.Super. 317, 555 A.2d 199 (1989).

Secondly, appellant contends the trial court erred in ignoring the prior order of the suppression court which reduced the robbery charge to a felony of the third degree. Also, appellant alleges trial and post-trial counsel’s ineffectiveness for failing to pursue this claim. The Commonwealth argues that the initial suppression court never made a dispositive order effectively quashing the criminal information insofar as it charged robbery as a felony of the first degree and reducing the charge to robbery as a felony of the third degree. Accordingly, the Commonwealth asserts the trial court was not obliged to adhere to such a ruling.

The applicable statute, 18 Pa.C.S. § 3701, reads:

§ 3701. Robbery
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(1) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
(v) physically takes or removes property from the person of another by force however slight.
(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.
(b) Grading.—Robbery under subsection (a)(l)(iv) is a felony of the second degree; robbery under subsection (a)(l)(v) is a felony of the third degree; otherwise it is a felony of the first degree.

Following the Commonwealth’s summary of the evidence at the plea proceeding, the Honorable Walter R. Little stated:

The crime does not arise to the rating which is listed in the information by the Commonwealth, the District Attorney’s office. It only arises, in the Court’s opinion to a felony three in Section 3701 a, Subsection 5, which indicates robbery or the taking or removing by force, however slight, which is classified as a felony three. And so that is the rating that I will accept on the nolo contendere plea.

Notes of Testimony, N.T., 9/4/86 at 17-18. Although the Commonwealth objected to the trial court’s classification of the robbery as a felony of the third degree, Judge Little remained firm concerning the classification of the offense for an acceptance of appellant’s plea of nolo contendere. However, following a colloquy with appellant concerning his plea, the trial court refused to accept appellant’s plea due to his inability to assure the court of his actual willingness to enter the plea. Consequently, the trial court ended the proceedings and ordered appellant to be returned to jail.

When appellant appeared before the Honorable Raymond A. Novak with his pre-trial motion to enforce Judge Little’s ruling, the trial court stated:

We find that the proceeding before Judge Little on September 4, 1986, was incomplete both as to the Defendant’s pretrial motion to suppress as well as the proper plea. There was no order suppressing evidence, and that there was no plea. We, therefore, find that any findings of Judge Little during the course of those proceedings were tentative and not final orders of the Court.

N.T., 1/6/87 at 12. In essence, the trial court accepted the Commonwealth’s characterization of the matter as not a final ruling but a statement as to what Judge Little would accept in terms of a plea in this case. Moreover, both parties agreed that Judge Little did not enter an order in regard to this matter. We agree with the Commonwealth’s approach that this issue is best considered from the general principle of law that the withdrawal of a guilty plea returns a criminal defendant to the status quo. For example, in Commonwealth v. Potosnak, 289 Pa.Super. 115, 432 A.2d 1078 (1981), we stated that all charges either dismissed or nolle prossed pursuant to a plea agreement are revived upon withdrawal of the plea. Also, jeopardy attaches upon the trial court’s acceptance of the plea. Finally, the withdrawal of a guilty plea is not a bar to reprosecution unless the defendant’s motion was caused by prosecutorial overreaching such that the prosecutor’s intent was to subvert the protections afforded by the Double Jeopardy Clause. Commonwealth v. Arelt, 308 Pa.Super. 236, 454 A.2d 108 (1982).

Initially, the trial court never accepted appellant’s plea of nolo contendré; therefore, jeopardy never attached. Moreover, the trial court never entered an order concerning the grading of appellant’s offense. As the plea proceeding began to break down, and appellant began to argue contingent matters before the court, the trial court’s non-acceptance of appellant’s plea returned appellant to status quo thereby re-exposing appellant to all previous charges. Accordingly, the trial court did not err in this regard, and prior counsel cannot be deemed ineffective for failing to pursue this claim. See Commonwealth v. Tavares, supra.

Thirdly, appellant argues that trial counsel and post-trial counsel failed to pursue a defense of involuntary intoxication and/or mental infirmity where the issue of appellant’s intoxication was crucial to the defense. It is well-settled that:

Neither voluntary intoxication nor voluntary drugged condition is a defense in a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent to the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.

18 Pa.C.S. § 308. Clearly, voluntary intoxication is statutorily precluded as a defense to robbery. Moreover, our supreme court has ruled “it is obvious that an actor should not be insulated from criminal liability for acts which result from a mental state that is voluntarily self-induced.” Commonwealth v. Hicks, 483 Pa. 305, 311, 396 A.2d 1183, 1186 (1979). As appellant has offered nothing to support his claim that prior counsel could have pursued an involuntary intoxication defense, we are not prepared to premise a defense on chronic alcoholism. See Commonwealth v. Brode, 523 Pa. 20, 564 A.2d 1254 (1989) (expert evidence properly excluded as a defense where defendant’s intoxication on morning of shooting was a necessary factor in defendant’s mental condition at time of shooting); Commonwealth v. Kuhn, 327 Pa.Super. 72, 475 A.2d 103 (1984) (plurality opinion) (involuntary intoxication cannot as a matter of law be established through evidence showing that criminal defendant was a chronic alcoholic incapable of voluntarily refraining from ingestion of alcohol). Accordingly, appellant’s claim is devoid of merit.

Appellant claims that the trial court erred when it permitted the bumper jack, found in the back seat of appellant’s car, to be admitted into evidence even though the sole prosecution eyewitness was unable to identify it other than to state that she saw something “wrapped up.” A review of the record reveals that the victim testified that she believed appellant held a shotgun up to her car window, but she did not know for sure because the object was wrapped in a black coat. It is well-settled that:

A weapon shown to have been in a defendant’s possession may be properly admitted evidence even though it cannot be identified positively as the weapon used in committing a crime; it may tend to prove that the defendant had a weapon similar to the one used. Any uncertainty that the weapon is not the actual weapon used in the crime, goes to the weight of such evidence. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981); Commonwealth v. Royster, 472 Pa. 581, 372 A.2d 1194 (1977); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974).

Commonwealth v. Lark, 316 Pa.Super. 240, 254, 462 A.2d 1329, 1336 (1983), affirmed on other grounds, 505 Pa. 126, 477 A.2d 857 (1984). The trial court found that:

[Although the bumper jack was not positively identified as the robbery weapon, it could, at a quick glance under stressful circumstances, very easily have been mistaken for a shotgun. Additionally, the fact that the jack was found in the back seat as opposed to the trunk was circumstantial evidence which the jury was free to weigh in its deliberations.

Trial court opinion, 4/14/88 at 8. As we agree with the trial court, we hold that the bumper jack was admitted properly into evidence.

Appellant alleges that the trial court erred in denying his post-trial motion which claimed that the prosecutor made a knowingly false and misleading statement during her closing argument. Also, appellant alleges that trial counsel was ineffective for failing to object to the prosecutor’s statement. During the prosecutor’s closing to the jury, she stated:

The defendant says he was in the service. He was born in October of 1926. In July of—he says of either ’43 or ’44 he was discharged. He would have been 18 or 17 when he was discharged. How could this be an honorable discharge at 17?

N.T., 1/8/87 at 291. Appellant alleges that this commentary cast aspersions upon his credibility, and inferred to the jury that he had been dismissed from the service for a bad mt or a criminal offense. It is well established that not every intemperate or uncalled for remark made by the prosecutor requires a new trial. Our supreme court has held:

[CJomments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.

Commonwealth v. D'Amato, 514 Pa. 471, 490, 526 A.2d 300, 309 (1987) (citations omitted) quoting Commonwealth v. Carpenter, 511 Pa. 429, 439, 515 A.2d 531, 536 (1986). Moreover, “the prejudicial effect of the prosecutor’s remarks must be evaluated in the context in which they occurred.” Id. Finally, the supreme court has set forth the appellate courts’ scope of review in regard to these matters:

Whether this standard has been violated by the language of the district attorney is not in the first instance our decision to make. It is the duty of the trial judge to rule upon the comments; this Court is limited in its review to whether the trial court abused its discretion.

Commonwealth v. D'Amato, supra, 514 Pa. at 491, 526 A.2d at 310 quoting Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). The trial court in this instance found that: “the remark was merely a brief comment about the defendant’s credibility during the prosecutor’s rather lengthy closing argument. It was not made in an effort to prejudice the defendant; rather, it was made merely for purposes of questioning the defendant’s credibility as a witness.” Trial court opinion, 4/14/88 at 15-16. Upon our careful review of the record, we agree. Accordingly, trial counsel cannot be deemed ineffective for failing to pursue a baseless claim.

Next, appellant asserts that the trial court erred in denying trial counsel’s motion to strike improper testimony of a police officer and that trial counsel was ineffective for failing to seek a mistrial. Upon the prosecutor’s cross-examination of Officer Howard McQuillan, a certified Intoxilyzer operator, McQuillan, stated that in his opinion, appellant was capable of driving but not safely. Then the following exchange occurred:

Q. Do you believe that he [the defendant] had motor coordination and sense enough to rob someone?
A. I believe so. Yes, he could.
Q. He could have robbed this woman?
A. I believe so, yes.

N.T., 1/8/87 at 240. In order to clarify the officer’s response, the trial court proffered:

Q. Officer, when you ... answered the District Attorney’s question as to whether this man was capable of committing a robbery, you have no knowledge of the facts of this case, do you?
A. I—I know—you know, my subpoena says a robbery and the other one.
Q. So you are not saying that you have an opinion as to whether the defendant committed the crime?
A. I don’t believe that was the question.
Q. It wasn’t the question, but I am just making it clear. I don’t want the jury to be under the impression that you have an opinion as to whether he committed the crime.
A. No I have no opinion as to—no—whether he committed or he didn’t commit the crime.
Q. In fact, you have no factual basis for opining one way or the other?
A. That’s correct.
Q. What you meant to say was that, in your opinion, he was physically capable of wielding a weapon, or taking a purse, or actions of that kind when considered in the abstract?
A. That’s correct.

N.T., 1/8/87 at 241-42. Following the court’s questioning, a sidebar conference was held during which defense counsel requested that the prosecutor’s question and the officer’s response be stricken. The trial court denied defense counsel’s request. Upon our review of the record, we agree with the trial court that:

it was obvious to the jury that Officer McQuillan would have no independent knowledge of the crime nor would he have any basis for an opinion as to the defendant’s guilt or innocence. As our questions quite clearly obviated any prejudice to the defendant, we find that it was unnecessary to either strike this testimony or declare a mistrial.

Trial court opinion, 4/14/88 at 14. Accordingly, appellant’s claim of error is meritless.

Finally, appellant asserts that trial counsel’s closing argument to the jury was meaningless and nonadversarial. Also, appellant contends that post-trial counsel was ineffective for failing to pursue this matter. “The constitutional right to representation by counsel in a criminal proceeding includes the right to make a closing argument.” Commonwealth v. Sparks, 372 Pa.Super. 463, 467, 539 A.2d 887, 889 (1988). Our review of defense counsel’s closing argument reveals that, although it was briefer than the Commonwealth’s, it informed the jury that their fundamental role was to determine if there were conflicts in the witnesses’ testimony, especially the victim’s, and if such conflicts undermined the witnesses’ credibility. As this case involved a determination of which witness was more credible, particularly the victim or appellant, and there was no complex scientific evidence for the jury to ponder, we believe that defense counsel’s closing argument was quite appropriate. Accordingly, appellant has not supported his ineffectiveness claim as it relates to trial and post-trial counsel. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Tavares, supra.

Judgment of Sentence affirmed.

WIEAND, J. files a concurring and dissenting opinion.

WIEAND, Judge,

concurring and dissenting.

After reviewing the briefs filed pro se by appellant and by his counsel, I concur in the decision of the majority to affirm the judgment of sentence. However, I respectfully dissent from the majority’s formulation of a policy which precludes consideration by the Superior Court of pro se briefs where separate briefs have been filed by counsel. It is not that I disagree necessarily with the substance of such a policy as much as I disagree with this Court’s right to determine the same. My review of the Supreme Court’s per curiam order in Commonwealth v. Gaerttner, 518 Pa. 452, 543 A.2d 1091 (1988), which remanded the case to the Superior Court with directions to consider the defendant’s pro se brief, suggests that the Supreme Court has already adopted a policy which is contrary to the policy which this Court attempts to set in the instant case. See also: Commonwealth v. Shaw, 379 Pa.Super. 491, 495 n. 2, 550 A.2d 555, 557 n. 2 (1988). Although it is correct that the Supreme Court in Gaerttner acted merely by per curiam order and did not provide us with the reasons for its decision, I can only assume that it acted in the interest of achieving full and complete appellate review as speedily as possible and with a minimum waste of judicial resources, both in the trial and appellate courts. Whatever the Supreme Court’s reasons, however, its per curiam order in Gaerttner, in my judgment, has precedentially established a procedural policy which the Superior Court is required to follow.

      . In 1988, 3,265 of the 6,439 new appeals filed in this court were criminal matters, generally either direct appeals from a judgment of sentence or an appeal from the denial of post-conviction relief. In 1989, the number of criminal matters comprised 3,103 of the 6,040 new appeals filed. Superior Court of Pennsylvania Annual Report (1988) and (1989).


author: CERCONE, Judge:

text:
    581 A.2d 607
    COMPOSITION ROOFERS LOCAL 30/30B, Appellants, v. Bernard N. KATZ, Esq. and Meranze and Katz, a partnership.
    Superior Court of Pennsylvania.
    Argued June 6, 1990.
    Filed Oct. 9, 1990.

      Regina C. Hertzig, Philadelphia, for appellants.
    Thomas A. Allen, Philadelphia, for appellees.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.

      . At the time of oral argument, The Honorable James R. Cavanaugh recused himself from this case and neither voted nor participated in this matter.

   CERCONE, Judge:

This is an appeal from an order which sustained the preliminary objections of appellees and dismissed the action filed by the Composition Roofers Local 30/30B, (hereinafter referred to as “Union”). For the reasons outlined below, we affirm.

The underlying facts are as follows. The Union retained Bernard Katz, Esquire, and the law firm of Meranze & Katz, (hereinafter collectively referred to as “Katz”), to advise it on all legal matters. In October of 1986, thirteen of the Union’s former officers and agents were indicted in the United States District Court for the Eastern District of Pennsylvania for its alleged criminal attempts to benefit the Union and its members. See United States v. Roofers Local 30, 686 F.Supp. 1139 (E.D.Pa.1988), affirmed 871 F.2d 401 (3rd Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 363, 107 L.Ed.2d 350 (1989). In response to the Union’s request, Katz advised that the Union could lawfully pay the legal expenses of the thirteen then current and former Union officers and employees who were under indictment. On November 25, 1987, the thirteen defendants were convicted of 152 counts of racketeering, RICO conspiracy, bribery of federal, state, and local officials, mail fraud, extortion, illegal kickbacks from providers to an employee benefit plan, embezzlement from the Union’s legal services plan, and collecting debts for organized crime. None of the thirteen individuals was convicted of illegal use of union funds or violation of 29 U.S.C.A. § 501. On January 8, 1988, Katz advised the Union that it was lawful for the Union to pay for the appeals of the now convicted criminal defendants. The Union voted to authorize the payment of the attorneys’ fees for the indicted Union officials and employees. The Union expended over one million dollars in attorneys’ fees and related costs.

On November 9, 1988, the Union filed the instant action against Katz. On February 1, 1989, the Union filed an amended complaint alleging legal malpractice and common law breach of fiduciary duty. On March 23, 1989, Katz filed preliminary objections in the nature of a demurrer. On November 1, 1989, the trial court entered an order granting Katz’ preliminary objections and dismissing the Union’s complaint. The Union filed this timely appeal. It raises one issue for our consideration: whether the Union’s complaint states a cause of action sufficient to withstand Katz’ preliminary objections in the nature of a demurrer.

We note initially that preliminary objections in the nature of a demurrer admit every well-pleaded fact in the complaint and all inferences reasonably deducible therefrom. Rosen v. Empire Valve and Fitting, Inc., 381 Pa.Super. 348, 352, 553 A.2d 1004, 1005 (1989). It tests the legal sufficiency of the challenged pleadings and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief can be granted. Id. When determining whether preliminary objections in the nature of a demurrer was properly granted, an appellate court must accept as true all properly pleaded material facts. Roach v. Port Authority of Allegheny County, 380 Pa.Super. 28, 30, 550 A.2d 1346, 1347 (1988). We must confine our analysis to the complaint and decide whether sufficient facts have been pleaded to permit recovery if the facts are ultimately proven. Id. The demurrer may be granted only in cases which are so free from doubt that a trial would certainly be a fruitless exercise. Smith v. Brink, 385 Pa.Super. 597, 600-01, 561 A.2d 1253, 1255 (1989).

To set forth a legal malpractice cause of action, three elements must be established: (1) the employment of the attorney or other basis for duty; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that such negligence was the proximate cause of damage to the plaintiff. McHugh v. Litvin, Blumberg, Matusow & Young, — Pa.-, 574 A.2d 1040 (1990). In any cause of action for malpractice, some harm must be shown to have occurred to the persons bringing the action, Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983). An attorney is negligent in a malpractice case if he fails to use ordinary skill, knowledge, and care which would normally be possessed and exercised under the circumstances by members of the legal profession. McPeake v. William T. Cannon, Esquire, P.C., 381 Pa.Super. 227, 553 A.2d 439 (1989). An informed judgment on the part of counsel, even if subsequently proven erroneous, is not negligence. Mazer v. Security Insurance Group, 368 F.Supp. 418 (E.D.Pa.1973), affirmed 507 F.2d 1338 (3rd Cir.1975).

In the instant case, the Union claims that Katz was negligent in advising it that it could lawfully pay the attorneys’ fees to defend its officers charged with criminal activity. In support of this contention, the Union primarily relies on the holding of the United States District Court for the Eastern District of Pennsylvania in United States v. Roofers Local 30, 686 F.Supp. 1139 (E.D.Pa.1988), affirmed 871 F.2d 401 (3rd Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 363, 107 L.Ed.2d 350 (1989). The court in Roofers Local 30 stated:

The use of union funds to pay for bail bonds, criminal defense and related costs incurred in criminal cases against Union officials is a breach of the Union officers’ fiduciary responsibility under the LMRDA, [Labor Management Reporting and Disclosure Act], 29 U.S.C.A. § 501, and constitutes illegal disbursements, (citations omitted)

Id. 686 F.Supp. at 1166.

The Union’s reliance on the District Court’s holding is misplaced. As we stated above, an informed judgment on the part of counsel, even if subsequently proven erroneous, is not negligence. Mazer v. Security Insurance Group, supra. Based on our review of the law at the time Katz advised the Union that it could lawfully pay the attorneys’ fees to defend its officers charged with criminal activity, we find no negligence on the part of Katz.

Unions have been paying the legal fees of, or on behalf of, its members since the early part of the century. See United Mine Workers of America v. Illinois State Bar Association, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967) (wherein the Supreme Court held that the First and Fourteenth Amendments gave unions the right to hire attorneys on a salary basis to assist its members in assertions of legal rights). The Union that is party to the case presently before us has paid for the legal defense of its members since at least 1972. U.S. v. Local 30, 871 F.2d 401, 407 (3rd Cir.1989).

The Union claims that Katz was negligent because he should have known that the payment of legal fees was in violation of § 501 of the Labor Management Reporting and Disclosure Act, (hereinafter referred to as the “LMRDA”), 29 U.S.C.A. § 501. This provision generally deals with the fiduciary responsibility of officers of labor organizations. The purpose of § 501 is not to provide judicial oversight to union decisions, but to redress the unreasonable and arbitrary action of unions. Kleppick v. Pennsylvania Telephone Guild, 631 F.Supp. 1073, 1081 (W.D.Pa.1986). A brief review of the various cases construing the application of § 501 to the payment of legal fees reveals that Katz was not negligent.

In Highway Truck Drivers and Helpers Local 107 v. Cohen, 182 F.Supp. 608 (E.D.Pa.1960) affirmed 284 F.2d 162 (3rd Cir.1960) cert. denied 365 U.S. 833, 81 S.Ct. 747, 5 L.Ed.2d 744 (1961), union members brought suit under the LMRDA against: (1) union officials, who had allegedly conspired to cheat and defraud the union of large sums of money; and (2) against the union to enforce fiduciary responsibilities of union officials. The union officials filed a motion to have the complaint dismissed, and the union members sought a preliminary injunction to prohibit the use of union funds to defray the legal costs and other expenses being incurred by union officials in defense of civil and criminal actions brought against them. The District Court held that the union could not pay for legal fees of union officials for alleged conspiracy to cheat and defraud the union of money, even though the majority vote at a regular union meeting authorized such expenditures. In reaching its decision, the District Court recognized that there are circumstances when the union could pay the legal fees for its officers. Id. 182 F.Supp. at 620-21. Specifically, the court stated:

There are undoubtedly situations in which a suit against a union officer would have a direct and injurious effect upon the union itself or would in reality be directed at the union. In such a situation the union would have the power to lend its financial support to such officer. When the question of whether the union has a sufficient interest to spend large sums of money to defend such a suit arises, it must ultimately be resolved by the court.

Id. 182 F.Supp. at 620.

In the related case of Highway Truck Drivers and Helpers Local 107 v. Cohen, 334 F.2d 378 (3rd Cir.1964) cert. denied 379 U.S. 921, 85 S.Ct. 277, 13 L.Ed.2d 335 (1964), the Court of Appeals for the Third Circuit held that payment by the union for legal fees to its officers in connection with charges brought against them for looting the union treasury was inconsistent with the aims and purposes of the LMRDA and beyond the powers of the local union. Thus, the Third Circuit in Cohen concluded that a money judgment was properly entered against the union officers for the amount of such fees paid by the union and a subsequent amendment to the international’s constitution ratifying the resolution of the local which approved the payments did not and could not validate an illegal local resolution.

In Urichuck v. Clark, 689 F.2d 40 (3rd Cir.1982), a union and several of its officers were sued in separate lawsuits for alleged violations of the LMRDA. The plaintiff in Urichuck, a union member, filed suit to prohibit the joint legal representation of the union and its individual officers and to prohibit the union from paying the officers’ legal fees in the underlying suit. The court began its analysis by recognizing that a union could not provide counsel for its officers in suits against them if the interests of the union as distinguished from the interests of its officers in the outcome of the case may be adverse. The Urichuck court stated: “Conflict of interest between a union and its officers is most clearly apparent in suits brought pursuant to Title V of the LMRDA charging union officers with pilfering union funds.” Id. 689 F.2d at 42-43. The Urichuck court completed its analysis by holding that actions of union officers are tested by common law theories of agency; if their actions fall within the scope of their authority, they are acting for the union and whatever liability flows from their actions, flows to the union also, but if their illegal actions fall without the scope of this authority, they must bear the consequences alone. Ultimately, the Urichuck court found that since the verdict was against both the individual defendants and the union, there was an indication that the individuals were found to be acting on behalf of the union such that the union was free to reimburse the union officers for counsel fees. Id. 689 F.2d at 44.

None of the cases we have reviewed, nor any of the cases cited by the Union are factually similar to the instant case. Until the decision in United States v. Roofers Local 30, supra, which was filed subsequent to the issuance of Katz’ advice to the Union, there was no clear statement of the law with these particular facts on which Katz could base his recommendation. Katz was left to his perception of the existing law. We do not presume to disagree with the District Court’s finding in United States v. Roofers Local 30, supra, that the payment of legal fees for the thirteen Union officials was a breach of the Union officers’ fiduciary responsibility under § 501 of the LMRDA. However, at the time of the issuance of Katz’ advice, court decisions, as set forth above, justified an opposite result. Under the cases prior to the District Court’s decision in Roofers Local 30, the following argument could have been developed. The actions of the thirteen Union officials were not adverse to the Union. Their efforts were for the purpose of promoting the widespread existence of the Union. While their acts were ultimately found to be illegal, they were done on behalf of the Union. Thus, Katz’ advice that the Union could lawfully pay the attorneys’ fees to defend its officers charged with criminal activity, was not negligent. See Mazer v. Security Insurance Group, supra (an informed judgment on the part of counsel, even if subsequently proven erroneous, is not negligence).

Further, we note that the Union will, not be denied a remedy by our decision. Assuming that it can act in a timely manner, the Union has the opportunity to seek reimbursement for the attorneys’ fees paid to defend the thirteen Union officials. It can implement the proper procedure against the parties that benefitted from the legal representation: the thirteen Union officials themselves.

Finally, the Union baldly asserts that Katz breached the fiduciary duty owed to it. The Union merely refers to the decision in Newman v. Silver, 553 F.Supp. 485 (S.D.N.Y.1982), affirmed in part, vacated in part, 713 F.2d 14 (2d Cir.1983), which held that an attorney is bound to conduct himself as a fiduciary or trustee occupying the highest position of confidence and trust such that in all relations with clients, he must exercise and maintain the utmost good faith, integrity, fairness and undivided loyalty. The Union then claims that Katz’ advice did not and could not benefit it since the Union did not receive anything for its expenditures. We fail to understand how this argument establishes the Union’s claim that Katz breached the fiduciary duty owed to it. As explained more fully above, while Katz’ advice may not have been correct, there is no indication that he acted in any manner other than with the utmost good faith, integrity, fairness and undivided loyalty. Thus, we find no merit to this claim.

Order affirmed.

      . For further support of Katz’ perception of the law as it existed prior to the District Court’s decision in Roofers Local 30, supra, see U.S. v. Hart, 417 F.Supp. 1314 (S.D.Iowa 1976) (wherein the District Court upheld the payment of attorneys’ fees for union officials charged with criminal offenses arising out of strike related violence and specifically held that such payment was not a breach of § 501); and Frantz v. Sheet Metal Workers Union Local No. 73, 470 F.Supp. 223 (N.D.Ill.1979) (wherein the District Court upheld the payment of attorneys’ fees for union official charged with antitrust violations).