author:
WIEAND, Judge:
      SPAETH, President Judge, WICKERSHAM, Judge, DEL SOLE, Judge,

text:
    500 A.2d 462
    COMMONWEALTH of Pennsylvania, Appellee, v. Edward KHOREY, Appellant.
    Superior Court of Pennsylvania.
    Argued July 23, 1984.
    Filed Nov. 1, 1985.

      Vincent C. Murovich, Jr., Pittsburgh, for appellant.
    Lawrence N. Claus, Pittsburgh, for Commonwealth, ap-pellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, WIEAND, CIRILLO, DEL SOLE, MONTEMU-RO, JOHNSON and POPOVICH, JJ.
   WIEAND, Judge:

May a defendant withdraw a negotiated plea of guilty after sentence has been imposed when, in a related case, it is determined that prosecution should have been brought by the District Attorney of Allegheny County and not by the Attorney General of Pennsylvania? The trial court refused to permit the withdrawal of the guilty plea under these circumstances. We affirm.

On January 6, 1982, Edward Khorey, a police officer in the Borough of Munhall, was arrested and charged with bribery, criminal solicitation, obstructing the administration of law, and criminal conspiracy in connection with an alleged attempt by Bruce Carsia, Esquire, to “fix” a criminal case in which Carsia’s clients were involved. The arrest was made as a result of an investigation conducted by the Bureau of Criminal Investigation, a division of the Office of the Attorney General of Pennsylvania. In addition to the charges filed against Khorey, the Attorney General prosecuted Carsia and others involved in the alleged bribery attempts. On September 20, 1982, Khorey filed a pre-trial motion to dismiss the information on grounds that the Attorney General lacked the power and authority to investigate and/or prosecute him for criminal conduct. This motion was subsequently withdrawn as part of a plea agreement the terms of which required Khorey to enter pleas of guilty to all charges in exchange for a sentence of probation. The plea agreement was accepted by the court. Accordingly, Khorey entered pleas of guilty to all charges, and on January 24, 1983 was sentenced to probation for two years for bribery. Sentence was suspended on all remaining charges.

In the criminal action against Bruce Carsia, the trial court subsequently held that the Attorney General lacked authority to prosecute under the Commonwealth Attorney’s Act, 71 P.S. § 732-101 et seq. The information signed by the Attorney General charging Carsia, therefore, was dismissed. Khorey thereupon moved to withdraw the plea of guilty on which he had been previously sentenced. The trial court denied the motion, and Khorey appealed.

“When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing ... it is well established that ‘a showing of prejudice on the order of manifest injustice’ ... is required before withdrawal is properly justified.” Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982) (emphasis in original). See also: Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). Manifest injustice exists where “the plea was involuntary, or was entered without knowledge of the charge.” Commonwealth v. Shaffer, supra 498 Pa. at 346, 446 A.2d at 593, quoting American Bar Association Standards Relating to Pleas of Guilty (2d ed. 1980) Standard 14-2.1(b)(ii)(C).

“A plea of guilty constitutes a waiver of all nonjurisdic-tional defects and defenses____ When a defendant pleads guilty, he waives the right to challenge anything but the legality of his sentence and the validity of his plea.” Commonwealth v. Montgomery, 485 Pa. 110, 114, 401 A.2d 318, 319 (1979). See also: Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982); Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974); Commonwealth v. McNeill, 453 Pa. 102, 305 A.2d 51 (1973).

Khorey was not unaware of the consequences of his guilty plea. He had filed a pre-trial motion to quash the information on grounds that the Attorney General lacked authority to prosecute him. He withdrew the motion to quash in order that he might accept a favorable plea bargain offered by the Commonwealth. The terms of that bargain required the prosecution, in exchange for Khorey’s plea of guilty, to recommend a sentence of probation. The guilty plea was preceded by a full and complete colloquy which included advice regarding the limited number of issues which could be raised on appeal following a plea of guilty. Thus, appellant fully understood that by entering a plea of guilty he would be withdrawing and would thereby waive the right to challenge the Attorney General’s authority to investigate and prosecute his alleged participation in criminal activity in Allegheny County. This was part of the price which he paid for the sentence of probation.

Appellant does not contend on appeal that he failed to understand either the charges to which he pleaded guilty or the effect of his guilty plea. He argues that manifest injustice occurred because Carsia and other defendants similarly investigated and prosecuted were able to argue successfully that the Attorney General lacked authority to investigate and prosecute alleged corrupt practices in Allegheny County. We reject this argument. Subsequent rulings in a related case do not constitute manifest injustice sufficient to permit a post-sentence withdrawal of a guilty plea.

The trial court, contrary to appellant’s argument, did not lack jurisdiction to accept appellant’s guilty plea and impose sentence. The Commonwealth Attorney’s Act, supra, did not limit in any way the jurisdiction of the several courts of common pleas to hear and decide criminal cases. The statute served only to define the scope of the Attorney General’s duties and responsibilities to investigate and prosecute criminal activity vis-a-vis the duties of the several district attorneys. Whether or not the Attorney General had authority to investigate and prosecute criminal activity was not determinative of the competency of the trial court to hear and determine controversies in criminal cases. Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974). The courts of common pleas of each judicial district are vested with “unlimited jurisdiction in all cases except as may otherwise be provided by law.” Constitution of Pennsylvania, Article V, Section 5(b). The jurisdiction of the courts of common pleas to hear and decide criminal cases has been neither abrogated nor limited by the Commonwealth Attorney’s Act.

When Edward Khorey entered pleas of guilty, he abandoned an uncertain argument in exchange for a sentence that was both certain and favorable. He thereby waived the right to question further the fact that he had been prosecuted by the Attorney General and not by the District Attorney of Allegheny County. He will not be permitted to resurrect his pre-trial motion after he withdrew it, entered a plea of guilty and was sentenced for his crime.

The judgment of sentence for bribery, therefore, will be affirmed. The indefinitely suspended sentences for the remaining offenses, however, will be vacated. In Commonwealth v. Ferrier, 326 Pa.Super. 331, 473 A.2d 1375 (1984), this Court said:

Indefinitely suspended sentences were condemned by the Supreme Court in Commonwealth v. Duff, 414 Pa. 471, 200 A.2d 773 (1964), where the Court said:
“Theories of implied probation and indefinite suspension of sentence are not only contrary to the clearly expressed intention of the legislature, but are also violative of true principles of probation and, as in this case, promote confusion where none should exist.”
Id., 414 Pa. at 474, 200 A.2d at 774. Although the Duff Court ascertained the intent of the legislature from earlier sentencing statutes, the same legislative intent is apparent from 42 Pa.C.S. § 9721(a). An indefinitely suspended sentence is not a sanctioned sentencing alternative. Moreover, it is as true now, as it was when Duff was decided, that an indefinitely suspended sentence violates “true principles of probation” and causes confusion where none should exist.

Id., 326 Pa.Superior Ct. at 337, 473 A.2d at 1378. Not only is an indefinitely suspended sentence unauthorized, but it can serve no proper purpose. It cannot subsequently be revoked and an alternate sentence imposed, for the later sentence will violate principles of double jeopardy. Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985). Such a sentence can only be the source of future mischief. See: Commonwealth v. Goldhammer, supra, and Commonwealth v. Ferrier, supra. We hold, therefore, that indefinitely suspended sentences are illegal sentences which serve no valid purpose. They should not be imposed.

The judgment of sentence for bribery is affirmed. The suspended sentences for criminal solicitation, obstructing the administration of law, and criminal conspiracy are vacated.

SPAETH, President Judge, files a concurring opinion in which MONTEMURO, J., joins.

WICKERSHAM, J., files a concurring statement.

DEL SOLE, J., files a dissenting opinion.

SPAETH, President Judge,

concurring:

I join in so much of the majority’s opinion as discusses the issue of the indefinitely suspended sentences. I write separately on the issue of whether appellant should have been allowed to withdraw his guilty plea, for the majority does not appear to me to have met appellant’s argument. Appellant does not, as the majority implies, see At 175-177, assert “manifest injustice” in its equitable sense; he knows, and does not deny, that he settled for the bird in hand — the favorable sentence — and gave up on the two in the bush— complete discharge. His argument is that he suffered “manifest injustice” in an absolute, or purely legal, sense: the trial court, he says, lacked subject-matter jurisdiction to accept his plea, and, therefore, could not impose any sentence on him.

For a trial court to have subject matter jurisdiction to entertain a plea, not only must the crime have been committed within the county in which the court sits, but the defendant must be properly before the court, having been confronted by the Commonwealth “with a formal and specific accusation of the crimes charged.” Commonwealth v. Little, 455 Pa. 163, 168, 314 A.2d 270, 273 (1974). “Since a question of subject-matter jurisdiction goes to the very power of the court to act, it may be raised at any time during the proceedings, ...” Commonwealth v. Ziegler, 251 Pa.Super. 147, 150, 380 A.2d 420, 422 (1977), and “[t]he lack of subject matter jurisdiction cannot be waived, even by a guilty plea, ...” Commonwealth v. Mangum, 231 Pa.Super. 162, 164, 332 A.2d 467, 468 (1974). See, e.g., Commonwealth v. Borris, 280 Pa.Super. 369, 421 A.2d 767 (1980) (trial court lacked jurisdiction to accept guilty plea where petition for allocatur on pre-trial motions was pending).

Appellant’s argument raises just such a challenge to the trial court’s authority to accept his plea. The argument, as I have indicated, proceeds as follows: the Attorney General was without authority under the Commonwealth Attorneys Act, 71 Pa.C.S. § 732-101 et seq., to investigate, arrest, or prosecute him; the prosecution was therefore a nullity; the trial court therefore had no basis upon which to accept his plea and to sentence him. See Brief for Appellant at 14-15. This argument both depends upon and derives its force from our decision in Commonwealth v. Carsia, 341 Pa.Super. 232, 491 A.2d 237 (1985), where we held that the information was without effect because the Attorney General did indeed lack the authority to prosecute the case.

In considering appellant’s argument, I have found it instructive to contrast the respective analyses of this court and the Supreme Court in Commonwealth v. Diaz, 235 Pa.Super. 352, 340 A.2d 559 (1975), rev’d 477 Pa. 122, 383 A.2d 852 (1978) (Diaz I and Diaz II).

In that case, the defendant, at the preliminary hearing, entered a guilty plea to attempted rape, and a simultaneous waiver of an indictment. The trial court concluded, sua sponte, that it had been without jurisdiction to accept the plea, for there had been no indictment or waiver prior to acceptance of the plea. A new complaint was therefore sworn out; appellant was rearrested; and the trial court vacated the sentence that had been entered on the plea. Appellant moved to dismiss the new complaint, and, after his motion was denied, similarly moved to dismiss the indictment based upon the complaint. On the trial court’s certification, 42 Pa.C.S. § 702(b), we permitted appellant to take an interlocutory appeal, and affirmed. See Diaz I, 235 Pa.Superior Ct. at 353-54, 340 A.2d at 560; Diaz II, 477 Pa. at 124, 383 A.2d at 853-54. Appellant’s sole argument, we noted, was that the trial court having accepted his guilty plea, it was precluded on double jeopardy principles from proceeding with a second prosecution for the same offense. This argument turned upon whether the trial court had jurisdiction, in the absence of a valid indictment, to accept appellant’s plea; if it did not, the first prosecution was a nullity, and the second prosecution was not precluded on double jeopardy principles. See Diaz I, 235 Pa.Superior Ct. at 354; 340 A.2d at 560. We held that the court did not have jurisdiction. “Not only is a grand jury indictment a protection for the individual charged, it is also an embodiment of the charge upon which a trial court may ground its deliberation. The indictment thus becomes a foundation for the court’s subject-matter jurisdiction.” Diaz I, 235 Pa.Superior Ct. at 355; 340 A.2d at 560-61. “[A] bill of indictment or an indictment is a necessary concommitant to subject-matter jurisdiction before a sentence may be .imposed for offenses in court cases.” Diaz I, 235 Pa.Superior Ct. at 356, 340 A.2d at 561. Because there had been no indictment prior to the court’s acceptance of the defendant’s guilty plea, “the acceptance of guilty plea and sentencing were a nullity, the court lacking jurisdiction.” Id.

Were we to follow our analysis in Diaz I here, we should be obliged to conclude, as appellant argues, that the prosecution was a nullity, the Attorney General lacking authority to bring it, and conferred no authority upon the trial court to accept appellant’s plea. We may not follow our analysis, however, for in Diaz II the Supreme Court rejected it.

In Diaz II the Supreme Court agreed with us that the issue turned upon whether the trial court had jurisdiction to accept the plea. It held, however, that the lack of an indictment did not divest the trial court of subject-matter jurisdiction. The purpose of the indictment, Justice MAN-DERINO said, was to give a defendant formal and specific notice of the charges against him. He reasoned that “[f]or-mal notice of the charges is required so that the defendant knows exactly what the accusation is and so that the record will establish exactly what the defendant is guilty of in the event of a conviction.” “Even a defective indictment,” he concluded, could serve the purpose of giving formal notice, and so long as that purpose was served, the trial court had authority to proceed with the case, despite a defective indictment, or no indictment at all. Diaz II, 477 Pa. at 126, 383 A.2d at 854. See also Commonwealth v. Little, supra 455 Pa. at 168, 314 A.2d at 272-73 (absence of criminal complaint does not deprive trial court of subject-matter jurisdiction, if indictment gives defendant notice of crimes of which he is accused.); compare Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979) (SPAETH, J., concurring) (where indictment failed to charge appellant with offense, therefore depriving her of notice of specific charge against her, trial court lacked jurisdiction to entertain her plea.)

Here, there is no question that appellant knew, with all the required specificity, the nature of the charge against him: the specific facts underlying the charge were placed on record in his presence and that of counsel. See Reproduced Record at 38-46. That being so, we are compelled to find that the Attorney General’s lack of authority to bring the prosecution did not affect the trial court’s authority to accept appellant’s plea.

MONTEMURO, J., joins in this opinion.

WICKERSHAM, Judge,

concurring:

I agree with the majority that appellant should not be permitted to withdraw his guilty plea. I write separately to reiterate my disagreement with the decision in Commonwealth v. Carsia, 341 Pa.Super. 232, 491 A.2d 237 (1985), upon which appellant’s motion to withdraw his guilty plea is based.

DEL SOLE, Judge,

dissenting:

I must respectfully dissent.

In the companion case to this one, Commonwealth v. Carsia, 341 Pa.Super. 232, 491 A.2d 237 (1985), this Court was presented with a situation where an attorney was charged with Bribery, Obstructing the Administration of the Law, etc., and where the entire investigation and prosecution was conducted by representatives of the Attorney General’s Office. Under a non-grand jury indictment, the charges were filed and Information signed by the Office of the Attorney General through the Executive Deputy Attorney General, Robert L. Keuch. The same office assumed full responsibility for the prosecution of the case as well. In Carsia, this Court noted the significance of the signature requirement for the filing of criminal informations. Under Pa.R.Crim.P. 225(a), “in counties in which the indicting grand jury has been abolished, after the defendant has been held for court, the Commonwealth either shall move to nolle presequi the charges or shall proceed by preparing an information and filing it with the Court of Common Pleas.” Pennsylvania Rule of Criminal Procedure 225(b) mandates that: “The information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains: 1) a caption showing that the prosecution is carried on in the name and by the authority of the Commonwealth of Pennsylvania.” The reasoning underlying the requirement was drawn from Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983):

Basically, the interest sought to be protected by the signature requirement of Pa.R.Crim.P. 225 is the right of a citizen to be free from unjust or unduly oppressive government interference. In the context of filing of a criminal information, this interest is protected in part, by our requirement in Pa.R.Crim.P. 225 that the information be signed by the government official authorizing the filing of the information ... Thus, due process requires that when the Commonwealth elects to file a criminal information against an individual, a particular identifiable government official must be named on the information, that person must sign the information by manual or fascimile signature, and the signatory must be prepared to establish that the information meets all legal requirements should he be called upon to do that by a court of competent jurisdiction.

Id., 501 Pa. at 587-88, 462 A.2d at 656. This Court then determined that “[i]t is axiomatic that in establishing that the information meets all legal requirements the person signing that information must show that he is authorized to conduct the prosecution. Otherwise, the information cannot meet the requirement that the prosecution is carried on in the name of and by the authority of the Commonwealth of Pennsylvania.’ Pa.R.Crim.P. 225(b)(1).” 341 Pa.Superior Ct. at 239, 491 A.2d at 240.

After a thorough analysis of the Commonwealth Attorney’s Act provision, 71 Pa.C.S. § 732-101, our Court concluded that the Attorney General had no authority to investigate or prosecute Carsia’s case and held “that the information signed by the Deputy Attorney General is defective on its face because it was signed by a person who had no authority to prosecute the case.” 341 Pa.Superior Ct. at 256-57, 491 A.2d at 250. The trial court’s dismissal of the information was affirmed.

Appellant was the police officer charged along with Car-sia. The information was brought in the identical manner as Carsia. No Grand Jury indictment took place. The Appellant filed a Motion to Quash the Information/Request for Habeas Corpus Relief in which he made the identical challenge to the Attorney General’s authority to investigate and prosecute under the Act. On the day of trial, however, Khorey withdrew the petition when offered a plea bargain by the Office of the Attorney General. The court accepted the plea and issued the judgment of sentence. After sentencing, Appellant sought to withdraw his plea, and the court denied the motion.

I would find that the criminal information filed against Khorey was facially defective and, therefore, the court lacked subject matter jurisdiction to accept his plea.

Appellant made several arguments as to why the acceptance of his plea constituted a manifest injustice and warranted the withdrawal of that plea after sentencing. The focus of my dissent is on Khorey’s argument that the trial court lacked subject matter jurisdiction to accept a plea based on invalid information and could not, therefore, impose sentence.

The majority and I agree with the rule that: “[A] plea of guilty constitutes a waiver of all nonjurisdictional defects and defenses ...” Commonwealth v. Montgomery, 485 Pa. 110, 114, 401 A.2d 318, 319 (1979). In my opinion, the majority incorrectly concludes tht the trial court had jurisdiction to accept Khorey’s plea. Judge Spaeth, in his concurring opinion, correctly notes that the jurisdiction here challenged does not rest on any limitations the Commonwealth Attorney’s act, supra, imposes on the courts to decide criminal cases. Instead, the issue becomes whether the court had the ability to accept a plea and impose sentence based on fatally defective criminal information. I believe that it does not.

Judge Spaeth’s concurrence analogizes this most unusual situation to that in Commonwealth v. Diaz, 235 Pa.Super. 352, 340 A.2d 559 (1975), rev’d, 477 Pa. 122, 383 A.2d 852 (1978). In Diaz, the defendant entered a guilty plea to Attempted Rape and simultaneously waived a Grand Jury indictment. The trial court ultimately determined that because there was no indictment or waiver prior to acceptance of the plea, subject matter jurisdiction did not attach and the acceptance of the guilty plea was unauthorized. After a new complaint was filed and defendant rearrested, the trial court vacated the first judgment of sentence. The defendant petitioned to Dismiss the complaint (which was denied), and then motioned to dismiss the indictment based on double jeopardy prohibitions. This court found that the invalid indictment deprived the court of subject matter jurisdiction to accept the plea. Therefore, the second prosecution was not barred by Double Jeopardy. Our Supreme Court reversed, relying on the purpose of an indictment as giving formal notice of the charges, which was afforded the defendant in the case. The Court ruled that even the defective indictment gave the trial court jurisdiction to proceed.

The applicability of Diaz, II to this case is limited because of the nature of the grand jury indictment. Referring back to the signature requirement for criminal informations, Pa.R.Crim.P. 225, I rely on Commonwealth v. Belcher, 258 Pa.Super. 153, 392 A.2d 730 (1978), rev’d 452 Pa.Super. 784, 452 A.2d 784 (1982), where the issue was whether the District Attorney’s ommission of his signature on the information in a county where Grand Jury indictments had been abolished was a “mere formal defect which may be cured by amendment or does the absence of the signature render the purported information void ab initio. Id., 258 Pa.Superior Ct. at 155, 392 A.2d at 730. The Court in Belcher discussed the distinction between Bills of Indictment by Grand Jury and Bills of Information by Petit Jury signed by the District Attorney. We said:

A bill of indictment presented by a grand jury has indicia of reliability not [fjound [sic] in a bill of information. The grand jury has made an independent determination of the sufficiency of the evidence which need merely be ratified by the district attorney. In the case of a bill of information, however, it is the prosecutor alone who must decide whether to bring the defendant to trial. When the vehicle for initiating a criminal trial (i.e. the information) is unsigned, it is not at all apparent that a reasoned evaluation of the advisability of instituting a criminal trial has been made. The signature on the information is, therefore, a vital ingredient which guarantees the authenticity and reliability of the document. The requirement of R. 255(b) that the information be signed by the attorney for the Commonwealth must, as a result, be deemed mandatory rather than merely discretionary.

Id., 258 Pa.Superior Ct. at 155, 392 A.2d at 731. See also: Commonwealth v. Contakos, 492 Pa. 465, 470, 424 A.2d 1284, 1287 (1981). The Court determined that because of the policy considerations involved, the lack of a signature by the District Attorney rendered the information void: “Until a validly signed information is issued there is in reality no information to be quashed. In the instant case there were no charges properly before the court at the time the trial was to commence.” Id. 258 Pa.Super. at 155, 392 A.2d at 73.

Subsequent cases dealt with the issue of valid signature on informations and the void/voidable ramifications. In Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982), we reversed Belcher by ruling that the signature requirement in Pa.R.Crim.P. 225(b) is directory and not mandatory and that lack of a signature causes the information to be voidable and curable and by amendment if raised in a pre-trial motion to quash. Pa.R.Crim.P. 306. The Court reasoned:

We have already concluded that a signed information is required as a memorial that there has in fact been a reasonable decision to proceed with charges by one who holds a public trust. A defendant has a right to demand that a public official who accuses him of a crime give tangible evidence of his prosecutorial decision; that is to require that the attorney for the Commonwealth or his designee sign the information and thereby assume responsibility for his discretionary and deliberative charging act. Such a demand can be reasonably made only prior to trial so that the Commonwealth can have an opportunity to rectify an unsigned information.

306 Pa.Super. 404-405, 452 A.2d at 788.

The problem with this reasoning when applied to Khorey is that under the Pa.R.Crim.P. 306 providing for amendment of criminal information there could be no proper amendment of the information against Appellant. The entire information is defective.

The Court stated two reasons in Veneri for reversing Belcher:

First, it is clear that the absence of a signature does not prejudice the defendant in his preparation for trial. Secondly, it is unrealistic to assume that Pa.R.Crim.P. 255(b) intended the signature of the attorney for the Commonwealth to be the exclusive deliberative act which charged the defendant and that its absence annuls the validity or integrity of an otherwise untainted prosecution process. If the case had gone to a point where the information has lost any meaning, by proof at trial or the defendant stands convicted, to even require a signature at that stage would be not only meaningless but a mere technical vanity.

Id., 306 Pa.Superior Ct. at 405, 452 A.2d at 788. See also: Commonwealth v. March, 308 Pa.Super. 343, 454 A.2d 567 (1982) (mere rubber stamp facimile of the District Attorney’s signature does not satisfy Pa.R.Crim.P. 255(b)). Commonwealth v. Jenkins, 316 Pa.Super. 167, 174, 462 A.2d 847 (1983) (Assistant District Attorney signature on information satisfied, although not literally, the requirements of Pa.R.Crim.P. 255(b)).

I disagree that our courts, in their efforts to interpret Pa.R.Crim.P. 225(b) in such a way as to not “place form over substance”, Commonwealth v. Jenkins, Id., 316 Pa. Superior Ct. at 174, 462 A.2d at 850, intended to preclude Appellant from perfecting a remedy for the wrong that the Rule was intended to prevent. The Court’s reasons in Veneri are inapplicable to Khorey. Khorey’s case had not gone to “a point where the information has lost any meaning,”, 306 Pa.Superior Ct. at 405, 452 A.2d at 788. The court accepted Khorey’s plea based on totally ineffective information. The Attorney General’s Office never had the opportunity to support the charge.

I would find, based on the rationale behind the signature requirement of Pa.R.Crim.P. 225(b), that Appellant has indeed shown a “manifest injustice” worthy of permitting withdrawal of his guilty plea. I would hold, in this limited and highly unusual case, that the court did not have subject matter jurisdiction over the Appellant by drawing a narrow exception to Veneri, where the information is so defective on its face as to be incurable by prompt amendment under Pa.R.Crim.P. 306 and where there was no opportunity to support the information by evidence at trial.

Therefore, I dissent.

      . This Court affirmed in Commonwealth v. Carsia, 341 Pa.Super. 232, 491 A.2d 237 (1985).

      . The majority’s statement that "the Commonwealth Attorney’s Act, supra, did not limit in any way the jurisdiction of the several courts of common pleas to hear and decide criminal cases[]”, At 176, is, of course, true, but it does not address the issue raised by appellant, which is whether the lack of a valid indictment, due to the Attorney General’s lack of statutory authority to prosecute, divested the court of subject matter jurisdiction.

      . See: Commonwealth v. Chew, 338 Pa.Super. 472, 487 A.2d 1379 (1985). "Appellant argues that the information contained ‘defective and inaccurate information’ and should, therefore, have been quashed. There is no merit to this contention. The face of the information was not defective and to quash it would have been improper.” Id., 338 Pa.Superior Ct. at 480, 487 A.2d at 1383.

      . The majority correctly states that "when considering a petition to withdraw a guilty plea submitted to a trial court after sentencing ... it is established that 'a showing of prejudice on the order of manifest injustice’ ... is required before withdrawal is properly justified.” Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1981).


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    500 A.2d 470
    Elmer BAKER and Rosemarie J. Baker, Husband and Wife v. MAGNETIC ANALYSIS CORPORATION and Cyclops Corporation, Sawhill Tubular Division. Appeal of MAGNETIC ANALYSIS CORPORATION.
    Superior Court of Pennsylvania.
    Argued May 13, 1985.
    Filed Nov. 8, 1985.

      Cyril T. Garvey, Sharon, for appellant.
    David Hickton, Pittsburgh, for Cyclops, appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an Order entered on July 19, 1984, (1) denying Magnetic Analysis Corporation’s (appellant) request to join Cyclops Corporation, Sawhill Tubular Division (appellee) as a necessary party plaintiff and (2) sustaining Cyclops’ preliminary objection in the nature of a demurrer to Magnetic’s Complaint to Join Cyclops as an Additional Defendant.

On January 14, 1984, plaintiffs Elmer and Rosemarie J. Baker filed a Complaint in Trespass against Magnetic in which they alleged, inter alia, that Mr. Baker was injured while operating machinery owned by Magnetic and leased to Mr. Baker’s employer, Cyclops. The plaintiffs alleged that Magnetic was liable to them on theories of negligence and strict liability under Restatement (Second) of Torts, § 402(A). Specifically, plaintiffs alleged that Mr. Baker’s injuries were caused by:

(a) The defectively designed machinery of [Magnetic];
(b) The defectively manufactured machinery of [Magnetic];
(c) [Magnetic’s] negligent and careless maintenance of the machinery;
(d) [Magnetic’s] negligent inspection of the machinery;
(e) [Magnetic’s] failure to warn the plaintiff in a proper and adequate manner of the dangers and defects of the machine known to the defendant or which, through reasonable inspection, should have been known to the defendant;
(f) [Magnetic’s] failure to manufacture and maintain a machine in compliance with applicable Federal and State laws and regulations;

Plaintiffs’ complaint at 2.

On February 9, 1984, Magnetic filed preliminary objections to the plaintiffs’ complaint and requested, inter alia, that Cyclops be joined as a necessary party plaintiff. On March 6, 1984, Magnetic filed a “Complaint to Join Additional Defendant” which sought to join Cyclops on the basis of an indemnity clause contained in a lease agreement entered into between Magnetic and Cyclops for the machinery. The clause reads as follows:

INDEMNITY OF PERSONS & PROPERTY: [Cyclops] agrees that it will assume, discharge and pay and at all times indemnify, defend and save harmless [Magnetic] from and against any and all claims, demand, loss, liabilities and damages for injuries to any person and to any property arising out of or in connection with the use, misuse or abuse of the equipment herein leased and from any act, fault or negligence of [Cyclops] or its employees, invitees, and licensees, together with all costs, expenses and attorney’s fees incurred with respect to any such claim, demand or legal proceeding made or brought against [Magnetic], provided, however, that [Magnetic] will indemnify, defend and save harmless [Cyclops] with respect to injuries to any person or any property arising out of the act, fault or negligence of [Magnetic], its agents or employees.

In its complaint, Magnetic alleged only that any injuries sustained by Elmer Baker were “within the scope of the indemnification clause” and that Cyclops was either solely or jointly liable to the plaintiffs or liable over to Magnetic for any injuries sustained by plaintiffs. In response, Cyclops filed a preliminary objection in the nature of a demurrer, maintaining that the Bakers’ allegations of negligence and strict liability were directed solely at Magnetic and that the indemnification clause did not provide that Cyclops would indemnify Magnetic for Magnetic’s own negligent acts.

On July 19, 1984, the trial court entered an order (1) denying Magnetic’s request to join Cyclops as a necessary party plaintiff and (2) sustaining Cyclops’ preliminary objections to Magnetic’s complaint to join Cyclops as an additional defendant. In an opinion accompanying the order, the trial judge, Honorable John Q. Stranahan, interpreted the indemnity clause as follows:

[O]ur interpretation of this provision is that the lessee, Cyclops, agrees that it will indemnify Magnetics against all claims, including damages for injuries to any person arising out of the use of the leased equipment and from any acts, fault or negligence of [Cyclops] or its employees incurred with respect to any such claim made or brought against [Magnetic]. The agreement further provides that [Magnetic] will indemnify [Cyclops] with respect to injuries to any person arising out of the act, fault or negligence of [Magnetic]. This we interpret to mean that [Cyclops] will indemnify for any claims against [Magnetic] caused by [Cyclops’] use, misuse or abuse of the leased machinery. The intention of the parties is obvious and that is while the machine is under the control of [Cyclops] and being used by its employees, that [Cyclops] will indemnify [Magnetic] for any injury, including injuries to the [Cyclops’] employees. The indemnity agreement does not provide, however, that [Cyclops] will indemnify [Magnetic] if the injury to the employee was caused either by a defect in the machinery or by the negligent construction or maintenance of the machine. There would be no purpose for [Cyclops] to assume that responsibility - since [Cyclops] had absolutely no control over the designing or manufacturer [sic] of the machine.
We conclude that the indemnity agreement does not intend to impose a duty for [Cyclops] to indemnify [Magnetic] where the injury was not caused by [Cyclops] but was solely the responsibility of [Magnetic] and we further believe that the parties did not intend to provide an obligation of indemnity under these circumstances.

Trial court opinion at 8-10.

Initially we note the applicable standard of review is expressed in Donnelly v. DeBourke, 280 Pa.Super. 486, 489, 421 A.2d 826, 828 (1980) (citations omitted):

[W]hen considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom ... [Preliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt, i.e., it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.

See also Bickell v. Stein, 291 Pa.Super 145, 149, 435 A.2d 610, 612 (1981). Any doubt as to whether a demurrer should be sustained is to be resolved against the moving party. DeSantis v. Swigart, 296 Pa.Super. 283, 285-286, 442 A.2d 770, 771-772 (1982); Commonwealth, Department of Environmental Resources v. Peggs Run Coal Co., 55 Pa.Commw.Ct. 312, 423 A.2d 765 (1980).

We have reviewed the record and have accorded due consideration to the issues argued by Magnetic. We agree with the trial court’s interpretation of the indemnity clause and, therefore, we affirm.

In attempting to join Cyclops as an additional defendant, Magnetic alleged in its complaint that “any injuries sustained by the plaintiff Elmer Baker are within the scope of the indemnification clause contained in the lease.... ” Magnetic’s Complaint to Join Additional Defendant, paragraph 8. Because Magnetic has premised its claim against Cyclops solely upon the indemnification clause, we focus our inquiry on whether the trial court properly interpreted that clause.

The record reveals that plaintiffs do not allege that their injuries were caused by Cyclops or its employees. It is true that plaintiffs aver negligence; however, those allegations are directed at Magnetic and cannot be read as inculpating, Cyclops. Moreover, Magnetic’s complaint does not allege any wrongdoing on the part of Cyclops or its employees. Magnetic, however, in spite of the absence of any claim of wrongdoing against Cyclops, contends that Cyclops has a duty to indemnify it under the lease which requires that Cyclops be joined in plaintiffs’ underlying action. This argument disregards the duties imposed upon Magnetic by the latter portion of the indemnity agreement. Under the agreement, Magnetic, as lessor, agreed to “indemnify ... [Cyclops] with respect to injuries to any person ... arising out of the act, fault or negligence of [Magnetic], its agents or employees.”

We hold that the trial court correctly considered the entire clause and correctly interpreted it to mean that Cyclops did not intend to indemnify Magnetic for injuries arising out of any “act, fault of negligence of [Magnetic].” After it correctly interpreted the clause, the trial court found that Magnetic’s complaint failed to state a cause of action against Cyclops and properly dismissed the complaint.

Magnetic also argues that sustaining “[Cyclops’] demurrer to the complaint to join it as an additional defendant deprives [Magnetic] of the opportunity of proving that while the machine was under the control of [Cyclops] and being used by its employees, Baker was injured as a result of negligence on the part of [Cyclops] or its employees.” Magnetic’s brief at 9. Leaving aside the fact that no such negligence is alleged in any of the pleadings, including Magnetic’s, that is not an accurate statement of the law. The dismissal of Magnetic’s Complaint to Join Additional Defendant does not preclude it from offering evidence at trial to prove that plaintiffs’ injuries were not caused by Magnetic or its employees. See generally McKee v. McHugh Brothers, 327 Pa.Super. 170, 174, 475 A.2d 153, 155 (1984) (if instrumentality causing plaintiff’s injuries “was, in accordance with parties’ agreement, exclusively in. the control of the plaintiff’s employer, then plaintiff’s cause of action against the alleged third-party tortfeasor fails because the injury was not caused by the third party, but rather by the plaintiff’s own employer.”) (emphasis in original.)

As to Magnetic’s second issue, we find that Judge Stranahan, in his opinion of July 19, 1984, adequately discussed and properly disposed of that issue also. See Kelly v. Carborundum, 307 Pa.Super. 361, 453 A.2d 624 (1982), aff'd, 504 Pa. 238, 470 A.2d 969 (1984) (per curiam, in accordance with Heckendorn v. Consolidated Rail Corporation, 502 Pa. 101, 465 A.2d 609 (1983)).

Order affirmed.

      . While Magnetic’s complaint also alleged that Cyclops was alone or jointly liable to plaintiff’s, those claims are barred. Szemanski v. Vulcan Materials Co., 272 Pa.Super. 240, 415 A.2d 92 (1979).

      . As to plaintiffs’ allegations that Magnetic negligently maintained and inspected the equipment, we note that the lease agreement provides as follows:
      MAINTENANCE AND INSPECTION: [Cyclops] shall maintain a suitable electrical service to operate each equipment and a suitable mechanism for feeding the material to be tested through each equipment. [Magnetic] will maintain the leased equipment(s) in working condition against damage or inoperativeness arising from ordinary wear and tear and from defects inherent in the equipment .... [Magnetic] may inspect and maintain the equipment(s) at all normal business times, subject to all rules and regulations of the United States Government and any of its agencies.


author: OLSZEWSKI, Judge:

text:
    500 A.2d 474
    COMMONWEALTH of Pennsylvania v. David PREDMORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 12, 1985.
    Filed Nov. 8, 1985.

      D. Bruce Cahilly, Coudersport, for appellant.
    Jeffrey E. Leber, District Attorney, Coudersport, for Commonwealth, appellee.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   OLSZEWSKI, Judge:

Appellant challenges his conviction of driving while his operating privilege was suspended. Appellant’s driver’s license was initially suspended for refusing to take a blood test, and as a condition of his acceptance into an A.R.D. program, in connection with a charge of driving under the influence. While the suspension was in effect, appellant operated an unregistered three-wheel all terrain vehicle (A.T.V.) on a public highway.

Appellant concedes that he was in violation of the prohibition against driving an unregistered vehicle on the highway, but claims that: (1) the suspension of an operator’s privilege does not prohibit operation of an A.T.V. since Pennsylvania does not require a driver’s license to operate an A.T.V.; (2) an A.T.V. is not a “motor vehicle” for purposes of the statute prohibiting operation of a motor vehicle during suspension of one’s operating privilege; and (3) he had no notice that his right to operate an A.T.V. had been suspended. We agree with the court below that appellant’s operation of an A.T.V. on a highway at a time his operating privilege was suspended violated Section 1543(b) of the Motor Vehicle Code.

This court has addressed the issue of what constitutes a motor vehicle. E.g., Gallo v. J.C. Penney Casualty Ins. Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984) (snowmobile); Bills v. Nationwide Mutual Ins. Co., 317 Pa.Super. 188, 463 A.2d 1148 (1983) (dune buggy). The issue in each of these cases was whether the device involved was a motor vehicle within the context of the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act). Id. Under the No-fault Act a motor vehicle was defined as “a vehicle of the kind required to be registered under ... The Vehicle Code.” 40 P.S.Sec. 1009.103. See Bills, 317 Pa.Superior Ct. at 190-192, 463 A.2d at 1150. These cases distinguish the term “motor vehicle” as used in the No-fault Act from the same term as used in the Motor Vehicle Code. Gallo, 328 Pa.Super. at 270-273, 476 A.2d at 1324-1325; Bills, 317 Pa.Super. at 190-192, 463 A.2d at 1150. It is clear that a device may be a motor vehicle under the Motor Vehicle Code, but not a motor vehicle for purposes of recovery under the No-fault Act. Gallo, 328 Pa.Super. at 270-275, 476 A.2d at 1324-1326; Bills, 317 Pa.Super. at 190-192, 463 A.2d at 1150. See Bindernagel v. Nationwide Mutual Automobile Ins. Co., 335 Pa.Super. 419, 484 A.2d 773 (1984).

A motor vehicle is “(a) vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated upon rails.” 75 P.S. Sec. 102. Under this definition, provided by the Motor Vehicle Code, the A.T.V. is clearly a motor vehicle.

Appellant urges us to find that an A.T.V. is not a motor vehicle because no license is required to operate it, just as no license is required to operate a snowmobile. We have already determined that a snowmobile is a motor vehicle. Gallo, 328 Pa.Super. at 272-273, 476 A.2d at 1325. The reason no license is required for such vehicles is that they are not normally operated on the public roadways. See 75 P.S.Sec. 7721(a) (“Except as otherwise provided ..., it is unlawful to operate a snowmobile on any street or highway____”); 75 P.S.Sec. 1502(5) (persons operating farm equipment exempt from licensing requirement, operation restricted to one- and two-lane highways bisecting or immediately adjoining their residence); Gallo, 328 Pa.Super. at 272-277, 476 A.2d at 1325-1327.

When the Commonwealth issues a driver’s license it is conferring upon the recipient the privilege of operating a vehicle on the highways. See, e.g., Commonwealth v. Halteman, 192 Pa.Super. 379, 162 A.2d 251 (1960) (operator’s license “is a limited right to use a public highway”). The Commonwealth is exercising control over use of a public area, the highway, for the protection of the public. See Commonwealth v. Gassoway, 199 Pa.Super. 479, 185 A.2d 671 (1962) (“A license to operate a motor vehicle on the public highways is a privilege which the Commonwealth limits to those who can and will do so with a reasonable degree of safety to themselves and to the other users of the highways.”).

Appellant had notice that his privilege to operate a motor vehicle on the highway was suspended. This was sufficient to put him on notice that operation of any motor vehicle on the public roadway was in violation of this suspension.

Use of the highways is a privilege. Appellant’s license was originally suspended for abuse of that privilege. It would frustrate the public safety purpose of the operator licensing laws to allow appellant to operate a vehicle on the highway merely because his use of the vehicle off the highway would not require the Commonwealth’s consent.

Order affirmed.

      . Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at at time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.
      75 Pa.Con.Stat.Ann.Sec. 1543(b) (Purdon Supp.1985).

      . Act of July 19, 1974, P.L. 489, as amended, 40 P.S.Sec. 1009.101 et seq., repealed, Act of February 12, 1984, P.L. 26, Sec. 8(a) (effective October 1, 1984).


author: TAMILIA, Judge:

text:
    500 A.2d 476
    WAINWRIGHT’S TRAVEL SERVICE, INC. v. Sigrid SCHMOLK and Hawaiian Fantasy, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Nov. 8, 1985.

      Anthony F. LoFrisco, Philadelphia, for appellants.
    Marc J. Sonnenfeld, Philadelphia, for appellee.
    Before McEWEN, MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from the final decree of June 14, 1985 enforcing the injunction of February 8, 1985, which prohibits appellant/Schmolk from continuing her employment with appellant/Hawaiian Fantasy, Inc. (hereinafter Fantasy). It also prohibits her participation or assistance in its business in any way for a period of one year either from the date she ceases to be a shareholder in Wainwright’s Travel Service, Inc. (hereinafter Wainwright’s), or from the date she tenders her shares to Wainwright’s.

The basis of the injunction is a restrictive employment covenant contained within a “Shareholder Agreement” entered into by appellant/Schmolk on November 2, 1978, while an employee of Wainwright’s, and contemporaneously with the signing of a “Purchase Agreement” for twenty shares of Wainwright stock.

The restrictive covenant reads as follows:

The Shareholders agree that while they are shareholders and/or directors and for twelve (12) months thereafter, that they will not compete directly or indirectly with the business of the Corporation within its service and trade area of Pennsylvania, New York, New Jersey, Delaware and Maryland.

Plaintiff’s exhibit 1.

Appellants raise four issues on appeal: 1) the covenant not to compete is unenforceable because it is in a shareholder agreement as opposed to an employment agreement; 2) Schmolk is not a shareholder because she paid only $6,000 of the agreed purchase price of $20,000; 3) the covenant not to compete is not supported by adequate consideration; and 4) the covenant is not reasonable in time and geographic scope.

In examining a final decree in equity, our scope of review is limited and the decree will not be disturbed absent an error of law or abuse of discretion. Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980); Rosen v. Rittenhouse Towers, 334 Pa.Super. 124, 482 A.2d 1113 (1984).

A court sitting in equity may issue an injunction to enforce a covenant not to compete where it is ancillary to an employment relationship between parties to the covenant. John G. Bryant Co. v. Sling Testing and Repair Inc., 471 Pa. 1, 369 A.2d 1164 (1977); Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976). It is only necessary that it be ancillary to another agreement incident to an employment relationship between the parties. The stock purchase agreement, offered to appellant because of her status as a key employee of the corporation, is sufficiently related to the employment relationship to meet this requirement. See N.T. 3/5, 6/85 pp. 15, 45, 46. To be enforceable, the covenant must be reasonably necessary for the protection of the party seeking to enforce it and the restriction must be reasonably limited in duration and geographic extent. Bryant, supra. In addition, the covenant must be supported by adequate consideration. George W. Kistler, Inc. v. O’Brien, 464 Pa. 475, 347 A.2d 311 (1975).

Appellants contention, that failure to pay the full price for the twenty shares listed on the agreement prohibits appellant/Schmolk from assuming shareholder status, does not comport with the situation as it existed.

Schmolk, from the time of the agreement, was by all indications a shareholder. A stock certificate was issued in Schmolk’s name and held by the escrow agent as called for by the terms of the agreement (Plaintiffs exhibits 2 and 8). She had paid $5,000 initially which entitled her to ownership of five shares. The minutes of corporate meetings signed by Schmolk designate her as a shareholder. In all respects she was treated as and entitled to the rights of a shareholder. The clear intent of all parties to the purchase agreement was that Schmolk would become a stockholder immediately upon payment of the $5,000 as opposed to 1993 when the final payment came due.

Title 15 P.S. § 1604 provides in part:

... Shares for which the agreed consideration has been paid, delivered, or rendered to the corporation shall be
fully paid shares and non-assessable____

We believe the trial court was correct in finding that even if the purchase agreement is construed as a subscription agreement, to the extent she actually paid for the shares, she was a shareholder.

The claim that the covenant is not supported by adequate consideration also fails. It is true that where a restrictive covenant is executed after commencement of employment it will not be enforced unless the employee restricting himself receives a corresponding benefit or change in status. Maintenance Specialties Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974). In the present situation, appellant/Schmolk, by entering into the agreement and thereby restricting herself, gained an ownership interest in the corporation. This certainly was a change in status from the one she maintained as an employee. Although immediate monetary gains were not recognized from this change of status, the potential to realize gains existed. She would ultimately benefit from an increase in value of the business and profits, whereas as an employee, she was limited to only those benefits provided to any employee of the firm.

Appellants’ fourth argument is that the covenant is not reasonable in time and geographic scope and would impose an undue hardship on Schmolk. They also assert the restraint is unreasonable because it relates to the time of ownership of the stock rather than the time of termination of employment. We find shareholder status is sufficient to justify continued enforcement of the injunction. As a shareholder in a small closely held corporation, Schmolk would have access to corporate information either through attendance at meetings or review of corporate records. The corporation is reasonable in wanting to protect this information from its competitors. It is clear that the “burden is on him who sets up unreasonableness as the basis of contractual illegality to show how and why it is unlawful.” (citations omitted) Bryant, supra, 471 Pa. at 12, 369 A.2d at 1169. Appellants have failed to demonstrate the unreasonableness of this action.

Insofar as the geographic restrictions are concerned, again appellants have failed to sustain their burden of showing unreasonableness. The five state area is sufficiently restricted so as to encompass Wainwright’s primary business area.

In determining whether the enforcement of the covenant would impose an undue hardship on appellant/Schmolk, we must not view this from a singular perspective but rather one which includes both parties to the agreement. The hardship brought upon her by enforcement of the covenant must be reviewed in conjunction with what is reasonably necessary to protect the interest of the employer. Jacobson and Co. v. Int. Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967).

The contacts and goodwill built up by Schmolk are certainly a protectable interest. Sidco, supra; Bettinger v. Carl Berke Assoc, Inc., 455 Pa. 100, 314 A.2d 296 (1974). In addition, the type of information available to Schmolk as a shareholder is justifiably entitled to protection.

The transcript amply demonstrates the key functions performed by Schmolk to the extent that she became president of Wainwright’s and completely ran the company (N.T. 3/5, 6/85 pp. 24, 28). It could be reasonably found that Schmolk’s employment by Fantasy would cause irreparable harm to Wainwright’s by disturbing business relationships established by Schmolk as a representative of Wainwright’s and providing insider information to a competitor as to business and publicity strategies.

We do not agree with appellants’ contention that enforcement of the covenant excludes employment in the entire travel agency business. While the geographic area outlined in the agreement is specific as to the states covered and the clientele, groups and services appellant and appellee offer are identical in nature, there are other distribution areas and prospects from which to draw within the travel industry without being in violation of the injunction. It is precisely the targeting of the restricted class and area which makes Schmolk so important to Fantasy and so damaging to Wainwright’s. In a more diffuse operation, reasonably available to Schmolk, the damage would be mitigated.

Decree affirmed.


author: FEENEY, Judge:

text:
    500 A.2d 479
    Dominic VERNER and Helen Verner, Appellant v. George L. SHAFFER and George L. Shaffer, Jr., Appellant
    at No. 707 Pgh. 1984,
    at No. 586 Pgh. 1984.
    Superior Court of Pennsylvania.
    Argued March 18, 1985.
    Filed Nov. 8, 1985.

      John J. Petrush, Beaver, for appellants (at 707) and appellees (at 586).
    Robert J. Taylor, Ambridge, for appellants (at 586) and appellees (at 707).
    Before BROSKY, ROWLEY and FEENEY, JJ.

       The Honorable John M. Feeney, Judge of the Court of Common Pleas of Allegheny County, Pennsylvania, is sitting by designation.

   FEENEY, Judge:

This case is before us on cross-appeals filed by plaintiffs Dominic Verner and Helen Verner (No. 707 Pittsburgh, 1984) and by defendants George L. Shaffer and George L. Shaffer, Jr. (No. 586 Pittsburgh, 1984) to entry of judgment on the verdict in favor of plaintiffs. A verdict was entered in favor of plaintiffs following a jury trial on plaintiffs’ breach of contract action against the defendants as guarantors for V & H Oil Company, (V & H OIL). Plaintiffs filed this action when V & H Oil defaulted on an Installment Sales Agreement involving the sale of certain property by plaintiffs to V & H Oil.

The plaintiffs entered into the Sales Agreement with V & H Oil in July of 1976. Pursuant to the Agreement, V & H Oil was to pay the sale price of $225,000 to the plaintiffs in monthly installments over a fifteen year and five month period. At the same time the Agreement was signed, the defendants executed and delivered to the plaintiffs a separate, written guaranty for the satisfaction of all the obligations of V & H Oil under the Agreement. In September of 1981, V & H Oil filed a Petition for Reorganization under the federal bankruptcy law and continued to operate as a debtor in possession. In August of 1982, V & H Oil went into default under the terms of the Sales Agreement and in September of 1982, the Bankruptcy Court converted the case into a liquidation proceeding. On January 12, 1983, at the plaintiffs’ request and pursuant to a Court Order, the Trustee in Bankruptcy executed and delivered to plaintiffs a written “Abandonment and Assignment of Installment Sales Agreement,” the effect of which abandoned back to plaintiffs the interests of V & H Oil in the Agreement.

Plaintiffs then filed against the defendant-guarantors a breach of contract action, claiming damages exceeding $115,000. Defendants counterclaimed for restitution for improvements, repairs and additions to the property in the amount of $78,000. After a jury trial, the jury entered a verdict in favor of plaintiffs for $88,398.44, and found in favor of plaintiffs and against defendants on defendants’ counterclaim. Subsequently, defendants’ post-verdict motions were denied, as was plaintiffs’ Motion for Molding of the Verdict to include prejudgment interest from January 12, 1983. Defendants then filed a timely appeal, and plaintiffs filed a timely cross-appeal.

Defendants present two arguments on appeal and plaintiffs make one argument on their cross-appeal. Defendants first contend that the trial court erred in failing to instruct the jury that the plaintiffs’ resale of the property in question, which occurred subsequent to the abandonment, for an amount exceeding the defendants’ underlying obligation, extinguished that obligation. Second, defendants argue that the trial court erred in failing to instruct the jury that the Deficiency Judgment Act, 42 Pa.C.S.A. § 8102, applied to the facts of this case, and operated to bar plaintiffs’ claim. In their cross-appeal, plaintiffs argue that they are entitled to prejudgment interest from January 12, 1983, the time they claim defendants’ obligations of payment became mature.

The trial court below rejected defendants’ two claims, as well as plaintiffs’ sole contention. First, the court found that the defendants had waived their initial claim, alleging trial court error in failing to instruct the jury concerning the resale of the property in question, because defendants did not raise this issue with specificity in their points for charge, nor did they specifically object to the court’s alleged omission following the jury charge. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 225, 322 A.2d 114 (1974); Brancato v. Kroger Co., 312 Pa.Super. 448, 458 A.2d 1377 (1983). The court did consider the merits of defendants’ second argument, that plaintiffs’ failure to comply with the Deficiency Judgment Act barred their recovery, but rejected this argument as meritless. In so doing, the court found that the present case did not involve a “sale” of real property to a “judgment creditor;” therefore the Act was inapplicable. As to plaintiffs’ sole claim in their cross appeal, the trial court concluded that plaintiffs were not entitled to prejudgment interest.

After a thorough review of the record, we agree with the trial court’s conclusion with respect to the defendants’ two claims on appeal, and we therefore affirm as to these issues based on the trial court opinion. However, as to the trial court’s rejection of plaintiffs’ claim on their cross-appeal that the verdict should be molded to include prejudgment interest, we disagree. The court refused to mold the verdict because it found that when the Bankruptcy court ordered the Trustee in Bankruptcy for V & H Oil to “abandon” the property to plaintiffs, the contract between the parties was also abandoned, so that full title was restored in the plaintiffs and they became free to dispose of the property to third parties. From this, the court concluded that, since plaintiffs, and not defendants, then had use or control of the property, plaintiffs were not entitled to prejudgment interest.

In their claim for prejudgment interest, however, plaintiffs are not seeking compensation for use and control of the property by defendants after January 12, 1983; they are seeking prejudgment interest based on the damages they incurred prior to the date of the abandonment. As the trial court recognized, prejudgment interest is compensation allowed by law or fixed by contract for the use or detention of a plaintiff’s property by the defendant. See Barium Steel Corp. v. Wiley, 379 Pa. 38, 108 A.2d 336 (1954). See also Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 473 A.2d 584 (1984) (Traditionally, Pennsylvania has followed the Restatement (Second) of Contracts § 354, which provides in part: “(1) If the breach consists of a failure to pay a definite sum in money or to render a performance with fixed or ascertainable monetary value, interest is recoverable from the time for performance on the amount due less deductions to which the party in breach is entitled”). The trial court reasoned that as a result of the abandonment, there no longer existed any contractual obligations between the parties after January 12, 1983, since the property was no longer a part of defendants’ estate. There remained, however, an obligation on the part of defendants to compensate plaintiffs for the damages plaintiffs incurred prior to January 12, 1983, as a result of the default on the Sales Agreement. These damages, which the jury calculated as $88,398.84, included such items as the loss resulting from the failure of defendants to maintain the premises in good order and repair, as well as the failure to make certain installment payments under the Installment Sales Agreement. This amount in damages was due plaintiffs when the Agreement was abandoned back to plaintiffs on January 12, 1983, and plaintiffs are entitled to prejudgment interest at the legal rate of 6% for the deprivation of the use of that money from the date of the abandonment until the date of the verdict, December 7, 1983.

We have stated on a number of occasions that in a contract action, the award of prejudgment interest is not a matter of discretion, but is a legal right. See, e.g., Gold & Co. v. Northeast Theatre Corp., 281 Pa.Super. 69, 421 A.2d 1151 (1980). Moreover, we find that even if the issue of prejudgment interest was not submitted to the jury, the trial court may mold the verdict to include it. See Commonwealth to the Use of Walters Tire Service, Inc. v. National Union Fire Insurance Co., 434 Pa. 235, 252 A.2d 593 (1969); Metropolitan Edison Co. v. Old Home Manor, Inc., 334 Pa.Super. 25, 482 A.2d 1062 (1984). Finally, we note that we have authority to mold the verdict by adding interest, see Berkeley Inn, Inc. v. Centennial Insurance Co., 282 Pa.Super. 207, 422 A.2d 1078 (1980). Accordingly, here we mold the verdict to provide for interest on the sum of $88,398.34 at 6% from January 12, 1983 to December 7, 1983.

The judgment is modified by adding interest as aforesaid.


author: PER CURIAM:

text:
    500 A.2d 482
    Harry and Tillie FILLER Appellants v. COMMONWEALTH FEDERAL SAVINGS AND LOAN ASSOCIATION and City of Philadelphia.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1985.
    Filed Nov. 8, 1985.

      Norman Shigon, Philadelphia, for appellants.
    Bernard F. Pettit, Philadelphia, for Com. Federal, appel-lee.
    Michael Tolcott, Assistant City Solicitor, for Philadelphia, appellee.
    Before ROWLEY, DEL SOLE and BECK, JJ.
   PER CURIAM:

Appellant, Harry Filler, and his wife filed this action in trespass to recover damages for personal injuries alleged to have been sustained by Mr. Filler when he fell on an accumulation of snow and ice on a public sidewalk in the City of Philadelphia. The trial court sustained the City’s preliminary objections in the nature of a demurrer. Appellant’s claim, on appeal, that the City is primarily liable rather than secondarily liable requires the construction and application of Philadelphia Police Department Directives Nos. 31 and 21, Section 10-719 of the Philadelphia Code, and the effect of the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8542(b)(7), on the Directives and Code.

Exclusive jurisdiction of appellants’ direct appeal is vested in the Commonwealth Court of Pennsylvania. 42 Pa.C.S.A. § 762(a)(4)(i)(A) and (B). We are aware, of course, that where, as here, the appellee has not objected to our Court’s jurisdiction we have discretion either to decide the case on the merits or to transfer it to the Commonwealth Court. 42 Pa.C.S.A. §§ 704(a) and 705. Pa.R.A.P. 741(a) and 751(a). We are of the opinion that transfer to the Commonwealth Court is appropriate in this case because of the special expertise of the Commonwealth Court in dealing with issues such as those raised here. Transfer will also avoid a possible conflict of decisions between our Court and the Commonwealth Court. See Osser v. City of Philadelphia, 295 Pa.Super. 447, 441 A.2d 1317 (1982).

For the foregoing reasons, this case is transferred, pursuant to Pa.R.A.P. 751(a), to the Commonwealth Court of Pennsylvania for further proceedings.


author: WATKINS, Judge:

text:
    500 A.2d 483
    COMMONWEALTH of Pennsylvania, Appellant, v. John Robert BAKER.
    Superior Court of Pennsylvania.
    Argued March 18, 1985.
    Filed Nov. 15, 1985.

      Phyllis R. Streitel, Assistant District Attorney, West Chester, for Com., appellant.
    JoAnn Selleck, Assistant Public Defender, West Chester, for appellee.
    Before WIEAND, WATKINS and GEISZ , JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania is sitting by designation.

   WATKINS, Judge:

This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Chester County suppressing a revolver seized from under the driver’s seat of the defendant’s automobile pursuant to a warrantless search.

The question raised on appeal is that the court below erred in suppressing the revolver seized from under the seat of defendant’s vehicle pursuant to a warrantless search of the vehicle based on probable cause and exigent circumstances.

The facts are as follows: On August 16, 1983, at 2:00 P.M. the police received the following information from a reliable informer, who on several prior occasions had given the police reliable information concerning illegal activities, that he had witnessed the defendant waving a gun at a Puerto Rican. The informant called it a cannon with a six-inch barrel. He said the defendant was driving an old beat-up red convertible Plymouth and that he was wearing a camouflage hat. The informer identified the defendant by his first and last names.

Thirty minutes after receiving this information, the following events took place: Police testified that they were notified that the defendant was parked in the Yearsley Parking Lot. When the police arrived, the defendant was sitting by himself in a red convertible. The police maintained surveillance while other officers were summoned.

As they observed the car a female, Beverly Root, got into the car and the car was driven east on Market Street and the police lost it. However, they were advised by police radio that the car was now parked by the Salvation Army. As he was backing out of the parking space when the officers approached it, the defendant jumped out of the car noisily abusing the police. He was informed that they had information that he had a weapon in the car.

The defendant was wearing a T-shirt and cut-off blue jeans so that they could easily ascertain that he was not armed. The defendant had turned off the ignition when he exited his vehicle. He was highly irate, yelling at the police to leave him alone and leave. The defendant had prior police contacts and a history of violent reactions.

The defendant was with the police about twenty feet from the car. His girlfriend was about five feet from the car. Defendant was not handcuffed, but the police then searched the vehicle and found a six-inch revolver under the driver’s seat. The defendant was then placed under arrest. Ms. Root retrieved a Machete from the passenger side of the car. The car was impounded.

The Commonwealth contends that the warrantless search fell under “automobile” exception based on probable cause and exigent circumstances.

The court below found that the exception did not apply in this case because exigent circumstances did not exist. He also held that the fact that the defendant was twenty feet from the vehicle with the police negated the automobile exception.

The court below based its finding that the car was “immobile” and exigent circumstances did not justify the warrant-less search under the “automobile exception”. We disagree. The focus on immobility of the car after the stop misses the point. It is the general mobility of vehicles before and after a stop that resulted in the creation of the “automobile exception”. Police control during intervention does not affect the inherent mobility of the vehicle. Once police officers have probable cause to believe there is contraband or evidence of crime in the car stopped on the road, they may “conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody ... it is this clear that the justification to conduct a warrantless search does not vanish once the car has been immobilized.” Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982).

So the fact that after the police stopped the defendant’s car it was unlikely to go anywhere did not negate the validity of the search. The item sought was dangerous and of evidentiary value and Michigan v. Thomas, supra, recognized that a search at roadside establishes exigent circumstances. See Commonwealth v. Burgwin, 292 Pa.Superior 273, 437 A.2d 41 (1982).

In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) the Supreme Court recognized that a brief intrusion upon personal security was reasonable when weighed against the legitimate interest in crime preservation and deletion. The Supreme Court concluded:

The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articula-ble facts which, if taken together with the rational inferences from those facts reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

The two cases relied on by the court below are Commonwealth v. Stagliano, 273 Pa.Superior Ct. 237, 417 A.2d 627 (1979) and Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (1980).

Stagliano, supra, is distinguishable. In that case the court found that the seizure from the defendant’s “passenger’s purse” was not justified as a search incident to the lawful arrest of the operator, who was outside the vehicle and in police control at the time. The court carefully noted that the Commonwealth’s failure to raise the two precise arguments as decided in Carroll v. United States and Terry v. Ohio so that the issues raised in this appeal were not addressed in Stagliano, supra.

Commonwealth v. Timko, supra, is of questionable continuing authority. In that case the court concluded that the zippered valise could not be searched without a warrant simply because it was seized in an automobile. In the instant case, the weapon was not packed.

Since Timko, supra, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) which held that a lawful custodial arrest justified the contemporaneous search of an automobile and any containers or compartments found therein.

In Commonwealth v. Stein, 303 Pa.Superior Ct. 336, 339, 449 A.2d 716 (1982), this Court held that a warrantless search of automobile and suitcase found therein was proper both under the automobile exception and exception pertaining to searches incident to arrest. See Note 4, Stein, 303 Pa.Superior Ct. page 344, 449 A.2d page 720:

In the instant case, the search of the suitcase was not so remote as to time and place of the arrest that it could be said not to be contemporaneous with the arrest. The search occurred within moments of the arrest and in the immediate area. It should also be noted that it does riot matter that the chance that the evidence in the automobiles may be destroyed or seized by the arrestees is remote, as long as it is possible.

We find that the warrantless search was legal under the “automobile exception”.

The suppression order is reversed; and the case remanded for trial. Jurisdiction is relinquished.


author: DEL SOLE, Judge:

text:
    500 A.2d 485
    Catherine J. MILLER, Appellant, v. David A. JOLLY.
    Superior Court of Pennsylvania.
    Submitted June 18, 1985.
    Filed Nov. 15, 1985.

      Thomas S. Kubinski, Erie, for appellant.
    Suzanne L. Brunsting, Bedford, for appellee.
    Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

The sole issue in this appeal is whether the trial court erred in dismissing Appellant’s complaint for support, and withdrawing certification of the complaint to the state of Arizona by applying the statute of limitations contained in 42 Pa.C.S.A. § 6704(b).

The facts of this case are as follows: On March 29, 1984, Appellant filed a Complaint in the Court of Common Pleas, Erie County, for support of her minor child. The Complaint alleged that Appellee was the father of Appellant’s child who was born on May 9, 1974. The Complaint also asserted that Appellee resided in Tucson, Arizona. In accordance with the rules outlined in the Revised Uniform Reciprocal Enforcement of Support Act, 42 Pa.C.S.A. 6741 et seq. (RURESA), the Complaint was certified by the Erie County court and three copies of it were sent to the Court of Prima County, Tucson County Seat, Arizona. Thereafter, the Complaint was served on Appellee. Appellee filed an Answer and New Matter in the Erie County Court admitting that he resided in Tucson Arizona, and claiming that the Complaint should be dismissed based on the six year statute of limitations found in 42 Pa.C.S.A. § 6704(b). After a hearing, the court dismissed the Complaint and withdrew its certification of the Complaint to the state of Arizona. Appellant has appealed from this order claiming that the court erred in applying the Pennsylvania statute of limitations regarding the commencement of support actions to this case. We agree, and accordingly reverse the order of the trial court.

Both Pennsylvania and Arizona have adopted the 1968 version of the Revised Uniform Reciprocal Enforcement of Support Act. This legislation was designed to improve and extend the enforcement of duties of support. Oman v. Oman, 333 Pa.Super. 356, 482 A.2d 606 (1984). The question of which body of law to apply in a given factual situation is answered in Section 6747 of the Act which provides:

Choice of Law
Duties of support applicable under this subchapter are those imposed under the laws of any state where the obligor was present for the period during which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown.

The term “obligor” is defined as “any person owing a duty of support or against whom a proceedings for the enforcement of a duty of support or registration of support order is commenced.” 42 Pa.C.S.A. § 6742. Herein, Appellee fits the definition of an “obligor” since a proceeding for the enforcement of support had been commenced against him. The state in which Appellee, “obligor”, was present was Arizona. In view of the above, any duties of support applicable in this case are those imposed under the laws of the state of Arizona. For this reason it was error to apply the Pennsylvania statute of limitations as a bar to this action. Further, Appellee can not avoid the provisions of this statute and choose his own forum by filing his Answer in a Pennsylvania Court.

The trial court failed to apply the “Choice of Law” provision of RURESA, and instead dismissed the Complaint based on 42 Pa.C.S.A. § 6704(b) which states:

Limitations of actions — All actions or proceedings to establish the paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action or proceedings may be commenced at any time within two years of any such contribution or acknowledgment by the reputed father. (Emphasis added).

The above speaks in relation to actions “brought under this section”. Section 6704 is entitled “Commencement of Support action or proceedings” and refers to those actions commenced under subchapter A of Chapter 67. “Support Proceedings” is the title of Chapter 67, and subchapter A contains “General Provisions”. The provisions of RURESA are outlined in Subchapter B of Chapter 67.

It is clear that this action was not commenced under subchapter A, but rather under subchapter B, RURESA. Contained in the record is the Complaint which states:

WHEREFORE, the Petitioner prays for the following relief, based upon the general powers of the Court and specifically upon the provisions and remedy in such cases provided for by Act No. 50 of the Commonwealth of Pennsylvania, approved the 10th day of May, A.D. 1951, 279 P.L. and known as the “Uniform Reciprocal Enforcement of Support Act,” as last amended in 1972.

Further, the Erie County Court certified in the record that the Complaint was “duly filed in the Reciprocal Support Office, Domestic Relations Division in a proceeding against the above-named Respondent commenced under the provisions of the ‘Uniform Reciprocal Enforcement of Support Act’ as last amended in 1972”. Since this action was commenced under Subchapter B, RURESA, the trial court erred in not applying the provisions of that subchapter.

In conclusion, we find that Section 6747 of RURESA mandates that any duties of support for which Appellee may be responsible are those imposed under the laws of Arizona, and any defenses available should be raised in an Arizona court applying Arizona law. Accordingly, we reverse the trial court order which dismissed Appellant’s Complaint in support and withdrew certification of the Complaint to the state of Arizona, and direct the court to certify the Complaint to the state of Arizona in accordance with this opinion and 42 Pa.C.S.A. § 6754.

Order reversed. Case remanded with directions.


author: McEWEN, Judge: BECK, Judge,

text:
    500 A.2d 487
    The SHELBY MUTUAL INSURANCE COMPANY, Appellant, v. Mark W. KISTLER and as Interested Parties: Mayme Reichard, Executrix of the Estate of Howard E. Reichard; Leon W. Mazurie and Clark M. Benfield, Individually and T/A Benfield Insurance Agency, Appellees.
    Superior Court of Pennsylvania.
    Argued June 6, 1985.
    Filed Nov. 15, 1985.
    Beck, J., concurred and filed statement.

      Mark H. Scoblionko, Allentown, for appellant.
    W. Hamlin Neely, Allentown, for Kistler, appellees.
    Before SPAETH, President Judge, and McEWEN and BECK, JJ.
   McEWEN, Judge:

Appellant instituted a declaratory judgment action to determine whether it was obligated to provide insurance coverage or to afford a defense to appellee in litigation arising from a motor vehicle accident in which a vehicle driven by appellee allegedly struck and killed a pedestrian. The Chancellor, in this case of first impression, determined that the contract between appellant and appellee provided for automatic coverage during the relevant notice period. We affirm.

The pertinent facts are not disputed and reveal that appellee purchased a 1969 Lincoln Continental automobile on October 9, 1981, at which time he also owned a 1973 Ford pick-up truck which was the subject of a motor vehicle insurance policy written by appellant. Seven days thereafter, on October 16, 1981, appellee was operating the newly purchased 1969 Lincoln Continental when his vehicle struck and killed a pedestrian. On November 14, 1981, appellee provided for an agent of appellant to add liability coverage for the 1969 Lincoln Continental to the policy issued by appellant upon the 1973 Ford pick-up truck.

The pertinent policy provision states:

‘Your covered auto’ means:
1. Any vehicle shown in the Declarations.
2. Any of the following types of vehicles on the date you become the owner:
a. a private passenger auto; or
b. a pickup, panel truck- or van, not used in any business or occupation other than farming or ranching.

This provision applies only if you:

a. acquire the vehicle during the policy period; and
b. ask us to insure it within 30 days after you become the owner.

The sole question presented by this appeal is:

Where an automobile insurance policy provides that insurance coverage will be provided under the policy to an automobile acquired during the policy period on condition that the insured notifies the insurance company within thirty days of the acquisition of such automobile and requests such coverage, if the insured in fact fails to notify the insurance company within thirty days of acquisition but is involved in an accident within the thirty-day period, does the insurance policy nonetheless afford automatic coverage to the insured notwithstanding the failure of the insured to comply with a condition of the policy?

The distinguished Judge James N. Diefenderfer has, in his able opinion, clearly expressed the contentions of the parties, accurately stated the issue for determination and quite perceptively addressed as well as correctly ruled upon that question in the following portion of his able opinion:

Shelby contends that it has no obligation to provide coverage for the October 16, 1981 accident because Kist-ler failed to notify them within 30 days of the purchase of the Lincoln, claiming that such notice is required for coverage under the policy to be retroactive for 30 days after purchase. Shelby’s position is that unless the assured requests coverage within 30 days, no obligation exists on its part to provide “automatic” insurance and any insurance requested after the 30 day period will take effect only as of the date of the request and will not be made retroactive.
Kistler contends that the policy provisions provide automatic coverage for 30 days from the date of purchase of an additional vehicle, regardless of when notice of the purchase is given.
Thus, the issue to be determined is whether the notice provision is a condition precedent, required in order for the insurance coverage to attach for the 30 day period or a condition subsequent under which the insurance coverage attaches to the additional vehicle without notice, but is not continued at the end of the thirty day period if no notice is given. After reviewing the policy we find that the applicable provisions are unclear as to whether notice within 30 days is required for coverage to attach during the 30 day period following the purchase or whether notice within 30 days is required only to extend coverage beyond the thirty day period. The interpretation of an insurance policy is a question of law for the court and where the terms of the policy are ambiguous or uncertain, the policy is to be construed strictly against the insurer and liberally in favor of the insured to effect the policy’s dominant purpose of indemnity or payment to the insured.
Although we have found no Pennsylvania case law directly on point, the majority of courts in other jurisdictions have held, with similar notice provisions, that insurance coverage automatically attaches during the notice period, and subsequently becomes void after said period of time if notice is not given.

See, e.g., Republic Mutual Auto Insurance Co. v. State Farm Mutual Auto Insurance Co., 527 F.2d 1002, 1003 (4th Cir.W.Va., 1975); Inland Mutual Insurance Co. v. Stallings, 263 F.2d 852 (4th Cir.Md.1959); Hall v. State Farm Mutual Auto Insurance Co., 268 F.Supp. 995, (D.C.S.C.1966) aff'd 378 F.2d 371 (4th Cir.S.C.1967); Brown v. Security Fire & Indemnity Co., 244 F.Supp. 299 (W.D.Va. 1965); Canal Insurance Co. v. CIT Financial Services Corp., 357 So.2d 308, 312 (Miss., 1978); Grant v. Emmco Services Corp., 295 N.C. 39, 52, 243 S.E.2d 894, 903 (1978); State Farm Mutual Auto Insurance Co. v. Carpenter, 116 N.H. 783, 784, 367 A.2d 609, 610 (1976); Baker v. Unigard Insurance Co., 269 Or. 204, 207, 523 P.2d 1257, 1259 (1974); Central National Insurance Co. v. Le Mars Mutual Insurance Co. of Iowa, 294 F.Supp. 1396, 1401 (S.D.Iowa, 1968); Consumers United Insurance Co. v. Johnson, 26 Wash.App. 795, 797, 614 P.2d 657, 659 (1980); Knotts v. Hardware Mutual Casualty Co., 272 So.2d 788, 790 (La. App., 1973); McCarty v. Grange Mutual Casualty Co., 27 Ohio App.2d 181, 183, 273 N.E.2d 345, 347 (1971); Pride v. State Farm Fire & Casualty Insurance Co., 434 S.W.2d 146, 149 (Tex.Civ.App.1968); Sheffield v. Aetna Casualty & Surety, 57 Misc.2d 559, 293 N.Y.S.2d 213, 218 (1968); Patrick v. State Farm Mutual Auto Insurance Co., 90 N.J.Super. 442, 450, 217 A.2d 909, 914 (1966); National Union Fire Insurance Co. v. Falciani, 87 N.J.Super. 157, 168, 208 A.2d 422, 430 (1965); Anno., Construction and Application of Automatic Insurance Clause or Substitution Provision of Automobile Liability or Indemnity Policy, 34 A.L.R.2d 936 (1954).

Order affirmed.

BECK, J., files a concurring statement.

BECK, Judge,

concurring:

I join in the thoughtful opinion of the majority and write separately only to clarify one point.

The majority, adopting the language of the well-reasoned trial court opinion, states: “The interpretation of an insurance policy is a question of law for the court. ...” At225. This statement is entirely proper in the context of the present case. However, for all purposes, it is too broad a proposition of law.

The general rule is that the interpretation of a writing is for the court. Where, however, extrinsic evidence is introduced in aid of its interpretation, the question of its meaning should be left to the jury except where, after taking the extrinsic evidence into account, the meaning is so clear that reasonable men could reach only one conclusion, in which event the court should decide the issue as it does when the resolution of any fact is equally clear. Where extrinsic evidence is not introduced, the question is one of law.

J.D. Calamari & J.M. Perillo, The Law of Contracts 124 (1977); see also Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563, 566 (1983).

I find the majority’s opinion does not state a correct proposition of law inasmuch as it implies that the interpretation of the terms of an insurance policy is a question of law for the court in all circumstances. In all other respects however, I join the fine opinion of the majority.


author: WIEAND, Judge:

text:
    500 A.2d 490
    Edith HUNTER and Royal Hunter, H/W v. EMPLOYERS INSURANCE OF WAUSAU and Martin A. Blaker, M.D. and Z.B. Friedenberg, M.D. Appeal of EMPLOYERS INSURANCE OF WAUSAU.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Nov. 15, 1985.

      Joseph T. Bodell, Jr., Philadelphia, for appellant.
    Before WIEAND, CERCONE and ROBERTS, JJ.
   WIEAND, Judge:

After a summary judgment becomes final because no appeal has been taken within the time allowed, may the court which entered the judgment vacate it sua sponte? We agree with appellant that the judgment in this case had become final and that the trial court’s order attempting to vacate the judgment was improper. Therefore, we reverse.

In 1980, Edith Hunter and Royal Hunter, husband and wife, commenced an action for civil damages against Employers Insurance of Wausau (Employers) and against Doctors Martin A. Blaker and Z.B. Friedenberg. On July 24, 1984, Employers filed a motion for summary judgment. The motion was granted by order of the Honorable Alfred J. DiBona, Jr. on September 11, 1984, and judgment was entered in favor of Employers. No appeal was ever filed from this judgment. On January 4, 1985, however, an order was filed which contained the signature of Judge DiBona and which purported to vacate the judgment entered on September 11, 1984 and assign Employers’ motion for summary judgment to the Honorable Curtis C. Carson, Jr. for disposition. This order was entered sua sponte and without notice to the parties. On January 8, 1985, Judge Carson entered an order denying Employers’ motion for summary judgment. On January 29, 1985, Employers appealed from the order entered January 4, 1985, which had sua sponte and without notice vacated the summary judgment entered on September 11, 1984.

Pa.R.App.P. 311(a) provides that “an appeal may be taken as of right from (1) an order opening, vacating or striking off a judgment____” An order vacating a summary judgment falls within this rule and is immediately appeal-able. See: Nordmann v. Commonwealth of Pennsylvania, 79 Pa.Cmwlth. 187, 190 n.1, 468 A.2d 1173, 1174 n.1 (1983). The present appeal, therefore, is properly before this Court for determination.

The law pertaining to the vacation or modification of court orders is stated at 42 Pa.C.S. § 5505 as follows:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within thirty days after entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

If no appeal is taken within thirty days, an order becomes final; and it cannot thereafter be modified, rescinded or vacated by the court. See: Leonard v. Anderson Corp., 300 Pa.Super. 22, 445 A.2d 1279 (1982). See also and compare: Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984); Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983).

The judgment in the instant case was entered by order of court on September 11, 1984. When no appeal was taken within thirty days thereafter, the judgment became final. It could not thereafter be vacated by the court. It could not be vacated without the consent of the party in whose favor the judgment had been entered merely to permit reconsideration by another judge.

The order vacating the summary judgment in favor of appellant is reversed, and the summary judgment previously entered in favor of appellant is reinstated.

CERCONE, J., did not participate in the consideration or decision of this appeal.

      . The order bore the date of November 30, 1984; it was not filed, however, until January 4, 1985.


text:
    500 A.2d 492
    Jeffrey VALEO, Appellant, v. POCONO INTERNATIONAL RACEWAY, INC. and Auto Sports Associates, Ltd., Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Decided Nov. 15, 1985.

      James V. Fareri, Stroudsburg, for appellant.
    Joseph P. Lenahan, Scranton, for appellees.

      Before WIEAND, CERCONE and ROBERTS, JJ.
   WIEAND, Judge:

Jeffrey Valeo was the driver of a race car. His car was damaged and he was injured while racing at the Pocono International Raceway in a race conducted by Auto Sports Associates, Ltd. He commenced a civil action against the owner of the track and the sponsor of the race to recover damages, alleging negligent maintenance of the track. In an answer containing new matter, the defendants averred that Valeo had executed an exculpatory agreement in which he stated that he had inspected the racing area and had found it “safe and reasonably suited for” racing. The agreement provided further that Valeo “releases, waives, discharges and covenants not to sue” the defendants “from all liability ... for all loss or damage and any claim or demands therefore [sic] on account of injury to the person or property ..., whether caused by the negligence of Releases or otherwise while the Undersigned is in or upon [the racing surface] and/or competing ... observing, working or for any purpose participating in such event.” Based on this release, the trial court granted summary judgment for the defendants. Valeo appealed. We affirm.

Automobile racing is hazardous. It gives rise to various situations in which injury or death may result to drivers and mechanics. Experienced racedrivers, such as appellant, are aware of the risks attending the sport of automobile racing. Therefore, it is not unusual for participants to examine the conditions of the raceway before agreeing to enter an event and then to release the sponsor of the event and the owner of the raceway from liability for injuries to person or damage to property occurring while the raceway is being used.

Such agreements are not contracts of adhesion. See: Schlessman v. Henson, 83 Ill.2d 82, 46 Ill.Dec. 139, 413 N.E.2d 1252 (1980). Each party is free to participate or not to participate; a race driver is under no compulsion, economic or otherwise, to engage in automobile racing on a track whose condition he has examined. An agreement exculpating the sponsor of the race and the owner of the track does not contravene public policy. It is a contract between individuals pertaining to their private affairs and does not impair generally the rights of members of the public. Such an agreement meets the test for validity enunciated in Zimmer v. Ness, 253 Pa.Super. 474, 385 A.2d 437 (1978), aff'd, 490 Pa. 428, 416 A.2d 1011 (1980). Its exculpatory provisions, therefore, are enforceable. See: Schlessman v. Henson, supra; Morrow v. Auto Championship Racing Association, Inc., 8 Ill.App.3d 682, 291 N.E.2d 30 (1972).

It must be conceded, of course, that contracts providing for immunity from liability are not favorites of the law and will be construed strictly. See: Employers Liability Assurance Corp. v. Greenville Business Men’s Association, 423 Pa. 288, 292, 224 A.2d 620, 623 (1966). Nevertheless, where the intention of the parties is spelled out with particularity and their agreement shows an unequivocally expressed purpose to release from liability, the law will give effect to that agreement. The language of the agreement in the instant case is clear. It released the owner and sponsor of the race from liability for injury to person or damage to property, whether caused by negligence or otherwise, while the injured person was competing, observing or working in the area to which the agreement pertained. The effect of the release was not avoided by an averred conclusion in the complaint that the negligent maintenance of the track amounted to gross negligence. The language of the exculpatory clause was broad enough to exclude liability for all degrees of negligence.

The trial court relied upon an earlier opinion in which it had upheld the enforceability of the same agreement. The court’s holding, we are told, was affirmed per curiam by a panel of the Superior Court. That decision, however, is not precedential, and we have not relied on it. Instead, we have conducted our own review of the record and have made our own analysis of the exculpatory language of the agreement. Having done so, we conclude that the trial court’s grant of summary judgment was proper.

Order affirmed.

CERCONE, J., did not participate in the consideration or decision of this appeal.