author: HESTER, Judge:

text:
    480 A.2d 1066
    COMMONWEALTH of Pennsylvania v. Dale Richard ARNOLD, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 17, 1984.
    Filed June 29, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.

      Lawrence J. Hracho, Reading, for appellant.
    Leonard J. Frawley, Jr., District Attorney, Towanda, for Com., appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   HESTER, Judge:

Jane Marie Moran, a then recent graduate of the respiratory therapy program at Robert Packer Hospital in Bradford County, Pennsylvania, met Phillip Evans, a security guard at the hospital, at 11:00 p.m. on May 14, 1979. Miss Moran was a resident in the nurse’s dormitory located next to the hospital. Mr. Evans was completing his workshift when he met Miss Moran at the guard’s station. The couple had planned a date.

Evans and Moran departed in Evan’s automobile and drove to a convenience store in Waverly, Pennsylvania. Following their purchase of a six-pack of beer, the couple proceeded to the “Sheshequin Narrows” in Sheshequin Township, Bradford County. The “Narrows” is that section of Legislative Route 08077 which cuts into a steep hillside on the east side of the Susquehanna River at a point where the Chemung and Susquehanna Rivers merge. At one particular place on the river side of the “Narrows” exists a twelve-foot gravel shoulder. Evans parked his vehicle on this shoulder so that he and Miss Moran could enjoy the view of the rivers two hundred feet below. They drank beer and listened to music as they sat in the automobile.

Sometime after midnight on May 15, 1979, while Evans and Moran remained in the parked vehicle at the “Narrows”, the driver’s door was abruptly and unexpectedly opened by appellant, Dale Richard Arnold. Appellant pulled Evans from the vehicle, shot him several times with a sawed-off .22 caliber rifle, dragged him across the shoulder of the road and pushed him over the embankment. Evan’s body was discovered later that day lying a few feet from the river. An autopsy disclosed gunshot wounds in his neck, right chest wall, left arm, left lower leg, left knee and diaphragm. His neck was also broken at the second cervical vertebra.

Immediately following his disposal of the body, appellant entered Evan’s car and drove it a short distance. Moran was lying in the backseat at his direction. Having driven Evan’s car for a few moments, appellant stopped and ordered Moran to get out and accompany him. With the sawed-off rifle in hand, he walked with Moran several hundred yards to his two-tone blue, Ford pick-up truck. Both entered the truck, and appellant drove back to Evan’s car. As directed, Moran lay across the seat of the truck. Appellant then removed a Pioneer FM radio/cassette tape player from the murder victim’s car.

Appellant re-entered the truck and began a nightlong period of driving on isolated roads. .He informed Moran that he was seeking the “boss’ ” house. If the “boss” were found, appellant would release her to him, at which time she would be injected with narcotics and compelled to join his harem. Moran repeatedly expressed her desire to go home.

Following one hour of driving, appellant removed Moran’s clothing and compelled her to engage in sexual intercourse in the truck. Thereafter, he drove again, commenting on his inability to find the “boss’ ” house and the alternative of driving Moran to New York City where she could work as a prostitute. Appellant stopped the truck a second time, again engaging in sexual intercourse against Moran’s will.

As daylight approached on May 15, 1979, appellant promised to drive Moran to Robert Packer Hospital, providing she remained quiet about the evening’s events and released her name, address and telephone number to him. He informed her that he had “men” on the Sayre police force and threatened to kill her if she reported what had transpired to authorities. Miss Moran provided the requested information and pledged her confidence. Appellant did in fact release her at the hospital at 8:00 a.m. on May 15, 1979.

Moran reported to law enforcement officials later that day; however, appellant was not arrested until August, 1980, fifteen months following the commission of the crimes. The investigation proved lengthy and complicated as a result of Miss Moran’s need of psychiatric counseling. The night-long episode left her mentally afflicted, which particularly affected her ability to identify appellant as the assailant.

Appellant was charged with murder of the first, second and third degrees, aggravated assault, terroristic threats, kidnapping, robbery, theft by unlawful taking or disposition, crimes committed with firearms and prohibited offensive weapons.

On March 19, 1981, following a jury trial in Bradford County, appellant was found guilty of first degree murder, theft and kidnapping. Motions for a new trial and arrest of judgment were denied. Life imprisonment, concurrent with unrelated sentences, was imposed. This appeal was taken from the judgment of sentence dated May 26, 1982. We address, in particular, four issues raised by appellant. We acknowledge numerous remaining arguments; however, due to the fact that they are clearly meritless and do not carry the significance of the issues hereafter addressed, we summarily dismiss them.

Appellant’s first assignment of error was the lower court’s denial of his request for a change of venue. It is appellant’s contention that the empaneling of an impartial jury from Bradford County was barred by the cumulative reporting of three area newspapers, The Daily Review, the Elmira Star Gazette, and The Evening Times. He points out that many articles covering the case were “headline” news, that portions of Jane Moran’s pre-trial testimony were published, that his criminal past was reported and that the reports of pre-trial proceedings were exhaustive.

An accused’s right to impartial and indifferent jurors is dictated by the constitutional standard of fairness. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Prospective jurors can qualify, however, despite their exposure to media reports on the crime and pretrial proceedings. Whether veniremen enter voir dire with opinions of guilt or innocence is also not reflective of partiality, providing they can dismiss their externally-induced opinions and produce a verdict reflective solely of the evidence presented at trial. Murphy v. Florida, supra; Irvin v. Dowd, supra.

Therefore, pre-trial publicity alone does not preclude the empaneling of an objective, impartial jury, nor does it create a presumption of prejudice. Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978). Moreover, it is the accused’s burden to develop a presumption of partiality and to demonstrate actual and unyielding prejudice among jurors. Commonwealth v. Rolison, 473 Pa. 261, 374 A.2d 509 (1977), cert. den., 434 U.S. 871, 98 S.Ct. 215, 54 L.Ed.2d 150 (1977); Commonwealth v. Hoss, 469 Pa. 195, 364 A.2d 1335 (1976). Appellant neither convinces us of the jury’s actual prejudice nor raises the presumption of partiality. Accordingly, we perceive no abuse of discretion and defer to the judgment exercised by the lower court in refusing a change of venue. See Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).

The three print media covering these proceedings reported extensively, but responsibly and objectively. The cumulative effect of their publications was not “so pervasive, so inflammatory, and so inculpatory” as to raise a presumption of prejudice. Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977).

The Daily Review, serving Sayre, Athens, South Waverly and Towanda, Pennsylvania, and Waverly, N.Y., reported on the proceedings in approximately thirty editions between May 16, 1979 and February 11, 1981. The Evening Times, circulated among the residents of Sayre, Athens and South Waverly, Pennsylvania, and Waverly, N.Y., used thirty-five publications to report on the proceedings between May 18, 1979 and January 15, 1981. Finally, the Elmira Star Gazette, of Elmira, N.Y., reported on thirty-two separate occasions between May 19, 1979 and January 13, 1981. From May, 1979 through November, 1980, the vast majority of articles on this case was published by these newspapers. Reporting during that period was limited to the discovery of Phillip Evan’s body and to the procedural developments in the investigations and court proceedings. At no time prior to November, 1980 did the print media report on the substantive nature of the crime.

During the fifteen-month investigation prior to appellant’s arrest, state and municipal officers declined to comment on their progress. This policy was due to the delicate condition of Jane Moran’s psyche. Shortly after the crimes, she incorrectly identified a Robert Packer Hospital cafeteria employee as the assailant. This man was arrested and detained in jail for two weeks before Moran withdrew her identification. Thereafter, until August, 1980, Jane Moran received psychotherapy, hypnotherapy and psychodiagnostic treatment. Her clinical psychologist, Mary Louise Marley, testified that she suffered from acute anxiety which caused her to repress the events and the identification of her assailant. Therefore, law enforcement officials proceeded cautiously and released minimal information to the press in order to protect Miss Moran and to assure a correct second identification. Miss Moran’s name was not released to the public until after appellant’s arrest.

On August 23, 1980, one day following appellant’s arrest, The Daily Review reported:

For almost a year, police have had little to say about the case. A few weeks after the dismissal of charges against Marshall (first man incorrectly accused), there was widespread comment that investigators were back on the trail of ‘the original bearded suspect.’
Speaking for the police, Lt. Bloomer expressed concern that revealing information to the public and press as the investigation progressed might be damaging to the case, noting that a policy had been initiated not to comment on the multitude of rumors floating around about the case last May and June.
The Daily Review, August 23, 1980, at 1, col. 6.

Therefore, throughout the fifteen-month investigation pri- or to appellant’s arrest, there was little information available to the newspapers. Although they reported often, they did not report intensively. From May, 1979 to August, 1980, articles repeatedly described the murder scene and the body’s wounds and attire, identified the investigating team of officers and reported on the search for the murder weapon, on the composite sketch of the assailant’s face and on the arrest and subsequent release of William A. Marshall, the incorrectly-accused man. This type of journalism is not so complete, descriptive or inculpatory as to arouse the prejudice of many readers against appellant. In fact, appellant’s name was not reported in connection with this crime until after his arrest on August 22, 1980.

Appellant complains that reports on his criminal history prior to his arrest raised a presumption of partiality. In June, 1979, the three newspapers reported on charges filed against him for the assault of Sharon Smith and the burglary of two private residences, unrelated incidents occurring in December, 1978. In June, 1979, appellant was not publicly reported as a suspect in this case. As charges were brought fourteen months later, we cannot agree that the earlier arrests were so fresh in the public’s mind as to generate a partial outlook on these proceedings.

It is injurious to appellant’s position to note that on August 24, 1980 the Elmira Star Gazette published remarks of William M. Gallow, Esquire, the attorney for William A. Marshall. In a conspicuously-arranged article, the newspaper reported on Mr. Gallow’s belief that a conviction of appellant would be difficult due to the mistaken identification of his client and the volatile mind of the principal Commonwealth witness, Jane Moran. He remarked on how the tarnished credibility of Miss Moran forced investigating officers to rely less upon their principal witness and more upon circumstantial evidence. Of course, we are unaware whether this particular article actually buttressed appellant’s defense; nevertheless, such an article is evidence of objective journalism that could not lead to the empaneling of partial jurors.

Following his arrest and until the empaneling of the jury, the newspaper reports covered more completely the actions of appellant; however, these reports were no less objective than those published during the pre-arrest stage. First, a gag order barred the press and public from appellant’s preliminary hearing on September 16 and 17, 1980. Prior to the preliminary hearing, the press reported on defense counsel’s numerous pre-trial motions, the results of those motions, arguments of counsel, the gag order and other procedural events. Afterwards, the press reports on pre-trial hearings concerning the actual criminal acts were accurate and responsible; we detected no innuendos suggesting appellant’s guilt or inflammatory reiteration of the facts. Once again, the reporting following appellant’s arrest did not raise a presumption of prejudice.

The effect of the pre-trial publicity is perhaps shown most accurately upon review of the voir dire testimony of the empaneled jurors. Three jurors read nothing concerning the case. Four other jurors recalled reading articles when reporting began in May, 1979; however, all four protested to know nothing more than that a murder occurred. One juror read one article the day before she appeared for voir dire, and another juror read her first article following the commencement of jury selection proceedings. Two other jurors read a few articles in the Daily Review only. Just one juror followed the case through the Daily Review and believed that he comprehended and retained the substance of the reports. This juror’s familiarity with the case did not harm appellant, however. He testified that his reading and discussions convinced him that appellant was innocent. It is most significant to note that every juror, with the exception of one who believed in appellant’s innocence, had no opinion of guilt or innocence. All believed that they could limit their deliberations and verdict solely to admissible evidence.

For the foregoing reasons, no presumption of prejudice arose from pre-trial publicity, and appellant was unsuccessful in proving “actual and unyielding prejudice” among the empaneled jurors. Consequently, the lower court properly rejected a motion for change of venue.

Next, appellant contends that it was error to deny his motion to dismiss the charges on the basis of the fifteen-month delay between the crimes and arrest. This delay allegedly weakened his defense due to the death of his alibi witness, Glenn Keene, prior to trial. At the pre-trial hearing on this motion to dismiss, appellant testified that upon completing work at 11:00 p.m. on May 14, 1979, he drove to his Litchfield Township home. He was greeted at 11:30 p.m. by his live-in mate, Mary Louise Beeman, who was also the mother of his two sons. Appellant ate dinner, but did not remain at home. Instead, he drove to Sayre, Pennsylvania, to visit his girlfriend, Lulu Felicita, at her place of employment. Following a brief visit, he began his journey to home. While traveling on Mt. Pleasant Road, appellant allegedly struck and killed a deer. He stopped, placed the deer on the bed of his pick-up truck and drove to Glenn Keene’s house located on Mt. Pleasant Road. Appellant testified that he gave the deer to Mr. Keene and that the two men spent the rest of the evening until sunrise removing the entrails and hide and cutting the meat. Appellant could not recall the date of Mr. Keene’s death; however, he believed that his death occurred prior to November, 1979.

Passage of time between crime and arrest is not a matter within the context of Sixth Amendment speedy trial rights. Only a formal indictment, information or arrest, any of which binds an accused to respond to a criminal charge, invokes Sixth Amendment privileges. Once a citizen’s liberty is restrained, his speedy trial rights are activated. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

The primary safeguard against undue delay between crime and arrest is the applicable statute of limitations. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). On occasion, however, the statute of limitations does not provide the necessary protection. This is particularly true with murder charges where there is no limitations period. Our United States Supreme Court commented on those occasions where the statute of limitations has not expired, yet prejudice is inflicted on the accused:

____ it is appropriate to note here that the statute of limitations does not fully define the appellees’ rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.
United States v. Marion, 404 U.S. at 324, 92 S.Ct. at 465, 30 L.Ed.2d at 480, 481.

This Court in Commonwealth v. McCloud, 218 Pa. Super. 230, 275 A.2d 841 (1971), reviewed the constitutionality of an eight-month delay between the defendant’s use and sale of narcotics and his arrest. The McCloud court studied several decisions of our United States Supreme Court and Circuit Courts of Appeal and gleaned therefrom that identification testimony and the effect of the pre-arrest delay on the identification are dispositive factors in determining whether the delay impinged upon the accused’s due process rights. Consequently, the McCloud court extracted and adopted a two-part analysis of the effect of pre-arrest delay. First, “a proper balance must be struck between defendant’s right to identification testimony of probative value and the public’s right to effective police detection...” Id., 218 Pa.Superior Ct. at 235, 275 A.2d at 844. Secondly, “the reasonableness of the delay necessitated by the conduct of an effective investigation” must be weighed against any prejudice suffered by the defendant. Id., 218 Pa.Superior Ct. at 236, 275 A.2d at 844.

The McCloud test was utilized in Commonwealth v. Barnes, 237 Pa.Super. 407, 352 A.2d 107 (1975), where this Court considered the propriety of a six-month delay between the crime and arrest. First, the Barnes court noted the definite identification of the defendant by the narcotics’ agent. The identification was uncorroborated, but it was unwavering and independent of the agent’s records. Secondly, the informant’s unavailability for trial was not so prejudicial to the defendant as to outweigh the Commonwealth’s interest in the delay. It was noted that the absent informant could affect credibility only of other witnesses; the defendant agreed that the informant’s testimony would offer no fresh evidence. Accordingly, the Barnes court held that the delay did not adversely affect the defendant’s due process rights.

A result more akin to the instant matter was reached in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), reh. den., 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977). There, the offenses of possessing firearms stolen from the United States mails and dealing in firearms without a license occurred eighteen months prior to indictment. The defendant complained that two defense witnesses, who could support his position that several firearms were purchased from individuals without connection with the postal service, died during the eighteen-month interim. The Lovasco court conceded that the death of two witnesses may have weakened the defendant’s case; nevertheless, the reasons for the delay outweighed any prejudice sustained.

Lovasco made it clear that prosecutors are not obligated to arrest and file charges at the moment probable cause exists and prior to their belief that there is sufficient evidence to prove the suspect’s guilt beyond a reasonable doubt. In noting the advantages of purposeful delay for the prosecution, suspect and judiciary, the Lovasco court commented:

In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely ‘to gain tactical advantage over the accused,’ United States v. Marion, 404 U.S. at 324, 92 S.Ct. at 465, precisely because investigative delay is not so one-sided. Rather than deviating from elementary standards of ‘fair play and decency’, a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of ‘orderly expedition’ to that of ‘mere speed,’ Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959). This the Due Process Clause does not require. We therefore hold that to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time. (Emphasis added). 431 U.S. at 795, 796, 97 S.Ct. at 2051, 2052, 52 L.Ed.2d at 762, 763.

Here, the following evidence was accumulated within two months of the crime: Jane Moran’s composite of the assailant, the murder weapon, Phillip Evan’s automobile, Phillip Evan’s empty plastic wallet inserts, Phillip Evan’s FM radio/cassette tape player, and Jane Moran’s identification of a red and white ice chest and blue flag from appellant’s truck. The accumulation of this evidence made appellant a suspect, but it was not enough to overcome the apprehension of investigating officers. This apprehension was primarily due to Jane Moran’s emotional affliction. She retracted her identification of William Marshall as the assailant two weeks following his arrest. This prompted the dismissal of charges. It also dictated the investigators’ strategy of giving Miss Moran ample time to recover so that her next identification would be positive and correct.

Jane Moran made no progress through December, 1979 despite psychiatric care. Her attempts to identify appellant from photographic arrays failed on at least two occasions. Chief investigating officer Lt. Edward Bloomer called Miss Moran and her mother monthly to check her progress. His conversations with them and Dr. Marley left him with the impression that Moran involuntarily refused to identify appellant for fear of reprisal.

Miss Moran sustained another blow to her frail mental condition in 1980 when her fiancé died of an epileptic seizure. Although she responded adequately to professional treatment in 1980 to enable her to testify at pre-trial hearings and trial, she never issued a positive identification of appellant.

Lt. Edward Bloomer of the Pennsylvania State Police explained why appellant’s arrest was delayed:

I felt then and I feel now that Jane Moran as our witness, as a witness in this case, she identified the wrong person at one time and since then she was under mental stress and strain. We were waiting for her to give her an opportunity not only mentally but physically to be able to correctly identify the person responsible. The reason for the delay was strictly giving her an opportunity to be able to be treated,____
(N.T., December 18, 1980, p. 90).

The decision to finally arrest appellant was based upon the investigating team’s consensus that Jane Moran might never positively identify appellant and that arrest and prosecution should proceed with the accumulated evidence alone.

It is apparent that the prosecution was not utilizing the fifteen-month hiatus between crime and arrest to prejudice appellant and gain a tactical advantage. The embarrassment of the misidentification forced them to strike a balance between an intense investigation and a gentle handling of Jane Moran. This approach was not only an attempt to assure the propriety of prosecution, but to justify the expense of criminal proceedings and to have the actual murderer answer the charges. We do not lightly dismiss the loss of his alleged alibi witness, but we remind appellant that the delay also served his interests as officials exhausted all means to assure arrest of the correct man. Furthermore, inasmuch as Glenn Keene was a corroborative witness only, his death did not preclude new and exonerating evidence. Therefore, we conclude that the delay was justified and any prejudice incurred by appellant did not outweigh the benefits of an assiduous investigation.

It is also appellant’s contention that the lower court erred in refusing to suppress pieces of white plastic tubing, a plastic wallet insert and pieces of yellowish-cream foam rubber seized from appellant’s Litchfield Township home on June 5, 1979. According to appellant, the search warrant was invalid as a result of the absence of probable cause, and officers improperly relied upon the consent of appellant’s father to search the home.

On June 1, 1979, two weeks following the murder of Phillip Evans and abduction of Jane Moran, appellant was arrested at his house for his offenses committed against Sharon Smith in December, 1978. He was incarcerated pending trial. His house was located on Legislative Route 08084 in Litchfield Township; his father, Wallace Arnold, resided across the roadway, approximately two hundred yards away.

On June 5, 1979, Lt. Bloomer and Troopers Renninger and Van Yliet of the Pennsylvania State Police drove to Wallace Arnold’s home with a search warrant in the Sharon Smith case authorizing a search of appellant’s home. At that time, appellant was only a suspect in this matter. Records showed that legal title to appellant’s real estate was registered jointly in the names of Wallace Arnold and his wife. Trooper Renninger testified that when the search warrant was served upon him, Wallace Arnold pledged his cooperation and insisted that the “paperwork” was not necessary. Thereafter, Mr. Arnold walked with the officers to appellant’s house, may have assisted with unlocking the door and accompanied them to the inside. He remained inside while the officers executed the Sharon Smith search warrant, which authorized the search and seizure of, inter alia, lipstick, cosmetics, Christmas ornaments, wallet, purse and pieces of black fur.

As Trooper Renninger was searching in the basement for those items enumerated on the Sharon Smith warrant, he discovered plastic tubing and foam rubber similar to that attached to the barrel of the murder weapon recovered two days earlier. The plastic and foam rubber served as a crudely-hewn silencer. Renninger also discovered .22 caliber shell casings matching those found at the gravel berm above Phillip Evan’s body. Shortly thereafter, Trooper Perechinsky arrived, and both he and Renninger departed to apply for a search warrant in this matter to authorize seizure of the newly-discovered items in the basement and other items pertinent to this matter but not in plain view. Wallace Arnold and the other officers remained at appellant’s house while Perechinsky and Renninger presented their application for a search warrant to an available magistrate.

This second search warrant (No. A24063) was also read to Wallace Arnold upon the two officers’ return to the search scene. Again, he did not object. Pursuant to the execution of this warrant, the officers seized plastic tubing, six pieces of foam rubber, black work shoes and an assortment of .22 caliber shell casings from the basement. An empty plastic wallet insert, bearing an ink impression of Phillip Evan’s name, was removed from appellant’s bedroom. This warrant authorized the seizure of a blue flag on a metal stem, work shirt, blue jeans, brown work shoes, .22 caliber ammunition and casings, foam rubber, plastic tubing and a man’s belt and wallet.

Appellant specifically argues that this second search warrant was invalid inasmuch as the passage of three weeks from the crimes to the issuance of the warrant rendered stale the information in the search warrant affidavit. According to appellant, the criminal activity must continue up to the time of the issuance of the warrant. Secondly, he maintains that his father was without authority to consent to the search in lieu of a valid search warrant. Appellant contends that his incarceration while he awaited prosecution in the Sharon Smith case was not evidence that he abandoned his house. Nor was there adequate evidence of Wallace Arnold’s joint control of the house, giving him authority to consent to the search.

We do not agree that the search warrant was defective because of staleness. An issuing authority must employ a fact and circumstances test in determining whether the passage of time between a criminal occurrence and the issuance of a search warrant makes it unreasonable to find probable cause that certain evidence remains on the premises to be searched. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974).

Investigating officers were aware since May 15, 1979 that .22 caliber shell casings, the blue flag, Phillip Evan’s wallet and belt, and the assailant’s work shirt, blue jeans and work boots were potential physical evidence. After all, the shell casings were found at the murder scene, the murder victim’s wallet and belt were missing and Jane Moran described the clothing worn by her abductor. Furthermore, the delay was not the result of sloth. As alluded to earlier, investigating officers proceeded cautiously and deliberately since William A. Marshall’s release. Jane Moran’s malady was such that she could not generate prosecutorial confidence in her as the principal Commonwealth witness. The risk of searching the home of an innocent person was more acute than the risk of allowing delay to result in “staleness.”

Next, the discovery of the foam rubber, shell casings and PCV tubing in plain view during the execution of the Sharon Smith search warrant did much to revitalize the information upon which probable cause was based. These items of physical evidence were linked to the murder weapon recovered on June 3, 1979. They were also related to the assailant’s attire and personal effects missing from Evan’s body.

Moreover, it is unfair to evaluate probable cause by a three-week delay to the extent it authorized search and seizure of the foam rubber and PCV tubing. The murder weapon, with its barrel covered with this material, was recovered only two days prior to the issuance of this warrant. The purpose of the foam rubber and tubing was not known until the weapon was seized. Certainly a two-day delay, with only a hunch that appellant was the murderer, would not cause stale information.

Also, the foam rubber, plastic tubing and shell casings were in “plain view” on the basement floor. Equipped with a valid, enforceable search warrant for the Sharon Smith case, the officers were rightfully inside appellant’s home. Therefore, objects within their plain view were subject to seizure and admissible as evidence. Harris v. United, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Commonwealth v. Martin, 252 Pa.Super. 265, 381 A.2d 491 (1977). A search warrant, then, was a superfluous mechanism for the seizure of those three items.

Appellant further complains that the search and seizure of his 1974 Ford pick-up truck and certain items therein was unlawful. On June 4, 1979, investigating officers in the Sharon Smith case applied for and received a search warrant for appellant’s truck. The search warrant was presented to appellant’s father, Wallace Arnold. Shortly thereafter, the truck was towed to the Towanda barracks of the Pennsylvania State Police. On June 5, 1979, officers prepared a written consent for further search of the truck with regard to general criminal investigation not limited to the Sharon Smith case. Wallace Arnold signed the consent enabling officers to search the vehicle on June 7, 1979 and to recover dog hair and pieces of paper.

As we are of the opinion that Wallace Arnold exercised common control with appellant over the 1974 truck, his consent to the seizure of the truck and to the search and seizure of items therein was binding. Our United States Supreme Court explained the effect of a consenting third party:

____when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 249, 250 (1974).

Third party consent may also be explained in terms of one party having a diminished expectation of access to and use of premises shared with another. Therefore, a person exercising “common authority” over property may bind the absent, non-assenting person to the ramifications of a consensual search and seizure. Commonwealth v. Van Jordan, 310 Pa.Super. 516, 456 A.2d 1055 (1983).

There is sufficient evidence of Wallace Arnold’s joint access and control over the 1974 Ford pick-up truck. Wallace Arnold purchased the truck in October, 1978 primarily for appellant’s benefit. Although appellant paid the monthly installments and insurance, title was registered in Wallace Arnold’s name. Wallace Arnold admitted to driving the truck on occasion. Following appellant’s incarceration on June 1, 1979 for the Sharon Smith charges, Wallace Arnold transferred the truck to his driveway. With title registered in his name, he considered it his "responsibility” to prepare the vehicle for inspection. His plans to sell the truck were made without consultation with appellant. These facts demonstrate that appellant was bound by his father’s consent to the search.

For identical reasons, appellant’s argument that the June 13, 1979 search and seizure of pliers and an eight-foot, ten-inch plastic pipe from his house and yard was invalid, must also fall. Wallace Arnold and his wife were record owners of appellant’s house, and they had access thereto as evidenced by Mr. Arnold’s assisting investigating officers to enter. Further evidence of Wallace Arnold’s common authority was his removing Mary Beeman and her two children from appellant’s house to his house, making appellant’s house available to appellant’s sister while he remained incarcerated.

Appellant also argues that the lower court erred in not suppressing the .22 caliber rifle and cardboard box. He objects to the intrusion by a Bradford County correction officer into his private conversation with Albert Raymond in the visitor’s area of the Bradford County Jail. This intrusion alerted investigating officers to the whereabouts of the murder weapon.

On June 3, 1979, Phil Shamoun, a correction officer at the Bradford County Jail, was doing paper work at a desk located twenty feet from the visitor’s area. Mr. Shamoun testified that he overheard appellant instruct his visitor, Albert Raymond, to bury the .22 caliber sawed-off rifle. Shamoun was familiar with appellant’s voice, and he knew that Raymond was appellant’s visitor. Shamoun contacted the Pennsylvania State Police barracks at Towanda a few minutes after overhearing the conversation. A cardboard box housing the weapon was retrieved by Troopers Perechinsky, Petti and Lt. Bloomer from Raymond’s garage later that day. Raymond informed the officers that he loaned the rifle to him in April, 1979, and that he learned from appellant on June 3, 1979 that Lulu Felicita, appellant’s girlfriend, had possession of the weapon. Raymond recovered it from Felicita later that day, prior to releasing it to the officers.

Appellant introduced evidence that Mr. Shamoun was not scheduled to work on June 3, 1979, and that there was no time card to reflect his working that day. Phil Shamoun admitted that Trooper John George instructed him to remain attentive to any conversation engaged in by appellant. Appellant deduces from this information that Shamoun was within the jail on June 3, 1979 for the purpose of eavesdropping, not to report for regular assignment.

The issue presented here is whether appellant’s Sixth Amendment right to assistance of counsel and Fourth Amendment protections against unreasonable search and seizure were violated by the admission into evidence of the murder weapon and of appellant’s incriminating conversation with Albert Raymond at the jail.

Since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), unreasonable search and seizure is not restricted to actual physical penetration of a person’s curtilage. Eavesdropping may rise to the level of physical intrusion, although it need not be equated with property law trespass. In United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), the defendant was detained in a Norfolk, Virginia jail pending a charge of armed robbery. An inmate of the jail became a confidential informant for the Federal Bureau of Investigation. He was directed to remain alert to statements of the defendant, but not to initiate a conversation with him concerning the pending charge. When the informant was released from jail, he informed an F.B.I. agent of the defendant’s admission to the armed robbery.

In holding the informant’s activities to be an infringement upon the defendant’s right to counsel, the Henry court noted the informant’s paid assignment, the informant’s cover as a fellow-inmate of the defendant and the defendant’s incarceration under indictment at the time of the incriminating statement. Particularly irksome to the Henry court was the informant’s impetus to produce useful information due to his assignment on a contingent-fee basis. Therefore, the court was unimpressed with an F.B.I. agent’s instructions to the informant not to actively seek conversation with the defendant concerning the robbery. The court also noted the likelihood that an accused would speak more freely without counsel to a confrere, doubling as an informant, than to a known law enforcement officer. Finally, the defendant’s incarceration was viewed as a mechanism to promote free conversation and association with an inmate ostensibly sharing a similarly undesirous confinement.

Appellant would have us subscribe to the Henry analysis and grant a new trial. We do not think Henry to be controlling. Instead, we find this matter more closely resembling the issues addressed in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), reh. den., 386 U.S. 940, 951, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967). While Teamster’s President James Hoffa occupied a suite in a Nashville hotel during his trial on charges of violating the Taft-Hartley Act, a Teamster Union official from Louisiana frequently visited him. This official superficially sought Hoffa’s advice on local union problems, when in fact he was surreptitiously gathering information for federal agents regarding Hoffa’s attempts to tamper with the jury. Based upon several incriminating statements made by Hoffa to the union official, Hoffa was convicted of attempting to bribe members of the jury.

The Hoffa court first rejected the Fourth Amendment challenge. The court conceded that the informant was working for the government from the moment he arrived in Nashville. It also recognized that Fourth Amendment protections extend beyond the home and tangible evidence to hotel rooms and oral statements. What the court found dispositive, however, was the absence of a legitimate Fourth Amendment protection.

Hoffa was not relying upon the sanctity of his hotel room when he incriminated himself. The informant was Hoffa’s guest, and every word was directed to him or uttered in his presence. The incriminating statement, therefore, was the result of Hoffa’s misplaced confidence in the informant. The Sixth Amendment challenge was rejected due to the fact that incriminating statements regarding bribery of jurors were unrelated to the pending charges of Taft-Hartley violations.

Here, appellant’s instructions to Raymond to bury the weapon were not issued in direct conversation with an informant.. They were issued freely with the purpose of concealing evidence of a crime for which he was not yet charged. As in Hoffa, appellant did not expect Fourth Amendment protections when he spoke with Raymond in the visitors’ area. Testimony demonstrated that a partition with a small perforated section for speaking separated visitors and inmates. Due to the noise from the general population in the cell block, the inmate often spoke loudly to his visitor. He did not occupy a separate room; instead, he stood before the visitors’ partition at one end of the cell block. Just as Hoffa had misplaced his trust in the union official, appellant misplaced his trust in the visitors’area of the cell block.

Although we must recognize that Shamoun was instructed to remain alert and that he overheard appellant’s incriminating statements on a non-scheduled workday, there was testimony that Shamoun was present for the purpose of instructing a new employee on the operating procedures of the visitors’ area. He did not engage in conversation with appellant in an attempt to elicit useful prosecution material.

In addition to having no expectation of Fourth Amendment privileges in the visitors’ area, appellant has no justifiable complaint that his Sixth Amendment right to counsel was violated. As in Hoffa, he was not yet charged with the Evans/Moran crimes. His attorneys in the Sharon Smith case were not present, and the incriminating statements were wholly unrelated to that pending proceeding. Without Fourth and Sixth Amendment expectations at the time Phil Shamoun overheard appellant’s incriminating statements, the murder weapon was properly admissible.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Prior to trial in this matter, appellant pled guilty to aggravated assault, kidnapping, robbery and impersonating a public servant for the December, 1978 beating and abduction of Sharon E. Smith. He was sentenced to not less than four nor more than twelve years for these offenses. Prior to beating Smith with a tire iron in an abandoned house, appellant drove aimlessly in his truck with her for an extended period under the pretense of finding the "boss'" house.

      . Sexual offense charges were not filed against appellant due to the fact that it was not known whether the sex acts were committed in Pennsylvania or New York; neither state was certain it had jurisdiction. Jane Moran was unfamiliar with the roads taken by appellant. Furthermore, it was dark, and she was unable to detect landmarks.

      . Appellant’s remaining arguments are as follows:
      1) The lower court erred in failing to amend or redact the information or in the alternative in failing to suppress references to the rape of Jane Moran;
      2) The lower court erred in failing to allow cross-examination of defense witnesses regarding the similarity of offenses committed by a William Payton with those for which appellant was tried;
      3) The lower court erred in finding the Commonwealth’s firearm’s witness to be a qualified expert;
      4) The lower court erred in denying a mistrial despite a Commonwealth reference to a defense ballistics test when the Commonwealth had been notified of appellant’s intent not to use the test results as evidence;
      5) The lower court erred in denying a mistrial on grounds of an improper cross-examination of appellant’s girlfriend, Lulu Felicita;
      6) The lower court erred in allowing Lulu Felicita to testify despite allegations that she was an incompetent witness as appellant’s common-law wife;
      7) The lower court erred in allowing several Commonwealth witnesses to testify as to "state of mind”;
      8) The lower court erred in allowing the testimony of several Commonwealth witnesses who testified as to appellant's "consciousness of guilt”;

        9) The lower court erred in allowing a correction officer to testify as to appellant’s prison conversation which disclosed prior criminal activity;
      10) The lower court erred in allowing the Commonwealth's rebuttal testimony of Janet Parmenter;
      11) The lower court erred in denying a mistrial due to the prosecutor’s improper closing remarks.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    480 A.2d 1080
    Suzanne S. WILLIAMS v. Sharon M. DULANEY, Appellant. Suzanne S. WILLIAMS, Appellant v. Sharon M. DULANEY.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1984.
    Filed July 6, 1984.
    Petition for Allowance of Appeal Denied Nov. 19, 1984.

      Donald B. Hoyt, York, for Dulaney, appellant (at No. 345) and appellee (at No. 348).

      William B. Anstine, Jr., York, for Williams, appellant (at No. 348) and appellee (at No. 345).
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   WICKERSHAM, Judge:

Before us are cross-appeals from an order of the Court of Common Pleas of York County (1) denying Ms. Dulaney’s motions for a new trial or judgment non obstante veredicto, (2) denying Ms. Williams’ motion for additur, and (3) entering judgment on the molded verdict plus delay damages in favor of Ms. Williams in the amount of $78,138.20, plus interest. We affirm in part and reverse in part.

On September 8, 1979, the parties were involved in an automobile accident at the intersection of Route 94 and Sunset Drive in York County. Ms. Williams, who suffered personal injuries as a result of the accident, filed her complaint on April 28, 1980. Trial before a jury was held from February 23-25, 1981. The jury, which was given a set of nine (9) interrogatories to answer, found Ms. Dulaney to have been 100% negligent and awarded Ms. Williams $90,000.00 in damages. Following the trial, Ms. Dulaney filed motions for a new trial and for judgment non obstante veredicto. Ms. Williams filed a motion for additur. On December 10, 1981, the court entered orders (1) molding the verdict by deducting $15,000.00 to reflect the maximum amount that could be awarded to Ms. Williams for lost income under the No-Fault Act, and (2) adding delay damages of $6,291.72 to the $75,000.00 molded verdict. The parties’ post-trial motions were denied on Oct. 4, 1982 and judgment was entered on the molded verdict plus delay damages. These cross-appeals timely followed.

Ms. Dulaney raises the following issues for our consideration:

I. Whether the Trial Court erred in not deciding the No-Fault thresholds itself, and in favor of the Defendant?
II. Whether the Trial Court erred in allowing testimony on permanent loss of earning capacity under the circumstances of the case?
III. Whether the Trial Court erred in refusing to strike the testimony of Plaintiffs psychiatrist?
IV. Whether a $90,000.00 total verdict for an injury such as this is excessive?

Brief for Appellant at 3. To these issues, Ms. Williams, the verdict winner above, adds one more:

V. Whether the trial court erred in molding the jury’s verdict by deducting $15,000.00 from the jury’s award?

Brief for Appellee and Cross-Appellant at 1. After a careful review of the record, the briefs of counsel, and the applicable law, we conclude that the trial court, in its opinion of October 4, 1982, thoroughly discussed the third and fourth issues and correctly concluded that the testimony of Ms. Williams’ psychiatrist was properly admitted and that the verdict was not excessive.

We additionally find that the second issue, whether the trial court erred in allowing Mr. Gordon’s testimony on permanent loss of earning capacity, has been waived because Ms. Dulaney never raised this objection during the trial. See N.T., pp. 71-97 (Mr. Gordon’s testimony) and pp. 200-210 (motions after close of plaintiff’s case). Since no objection was raised to the competency of Mr. Gordon at trial, Ms. Dulaney cannot now complain of any harm done. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); See also, Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); McKnight v. City of Philadelphia, 299 Pa.Super. 327, 445 A.2d 778 (1982); Love v. Harrisburg Coca-Cola Bottling Co., Inc., 273 Pa.Super. 210, 417 A.2d 242 (1979); Stacy v. Thrower Trucking, Inc., 253 Pa.Super. 150, 384 A.2d 1274 (1978).

Ms. Dulaney urges us to find error by the trial court in allowing the jury to determine whether the no-fault thresholds had been met. We decline to do so.

Under the Pennsylvania No-Fault Motor Vehicle Insurance Act, before non-economic damages can be awarded against a defendant, a plaintiff is required to prove that she has met at least one of the threshold requirements of section 301(a)(5). 40 P.S. § 1009.301(a)(5). Ms. Williams argued that three of these thresholds had been met in her case: serious and permanent injury; reasonable and necessary medical bills in excess of $750.00; and a physical or mental impairment in excess of sixty (60) consecutive days. 40 P.S. § 1009.301(a)(5)(A), (B) and (C). Testimony concerning these various thresholds was taken during trial and the jury was instructed to answer interrogatories that specifically asked whether Ms. Williams had suffered (1) serious and permanent injuries, (2) reasonable and necessary medical bills in excess of $750.00, and/or (3) a physical or mental impairment in excess of 60 consecutive days. (N.T. at 256-257). The jury found that the first two thresholds had been met, but the 60-day threshold had not been met.

In submitting the threshold issue to the jury, the lower court reasoned that the question of whether or not a plaintiffs cause of action meets the threshold standard set by the No-Fault Act is a question of fact, to be determined by the jury as finder of fact. Lower ct. op. at 3. We agree.

The court determines all questions of law while the jury passes on the credibility of witnesses and determines the facts. General Electric Credit Corp. v. Aetna Casualty & Surety Co., 437 Pa. 463, 263 A.2d 448 (1970). However, a jury cannot be permitted to reach its verdict on the basis of speculation or conjecture. Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959). It is the duty of the trial judge to determine, prior to sending the case to the jury, whether or not the plaintiff has introduced sufficient evidence to establish the elements necessary to maintain an action. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983). The trial judge herein specifically ruled at trial that Ms. Williams had produced sufficient evidence for the jury to decide that the no-fault thresholds had been met, leaving the final determination of the facts surrounding attainment of the thresholds to the jury. (N.T. at 211).

In holding that the question of whether or not Ms. Williams’ cause of action met the threshold standards set by the No-Fault Act was a question of fact to be determined by the jury, the lower court cited two Court of Common Pleas cases. We have discovered a number of other such cases that discuss the threshold requirements, with varying outcomes. We have also considered a number of appellate cases on the subject from other jurisdictions that have similar no-fault acts. There is little Pennsylvania appellate case law on the subject. The lower court cites our decision in Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982), as support for its holding. However, the Pennsylvania Supreme court, in Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983), reversed our decision, and held that medical expenses are not admissible to prove pain and suffering. On the topic of thresholds, the court stated:

Finally, the Superior Court theorized that evidence of medical expenses must be admitted in order for the trial court to determine whether it has subject matter jurisdiction of a suit in which satisfaction of the monetary threshold requirement is placed in dispute. This issue is not presented by the case before us, and, in any event has no bearing on the question of the admissibility of evidence to show pain and suffering. Moreover, in the hypothetical situation posited by the Superior Court, the question is not one of jurisdiction, i.e., the court’s power to adjudicate, but of the plaintiff’s right to maintain an action for damages. See, e.g., In re Jones & Laughlin Steel Corp., 488 Pa. 524, 412 A.2d 1099 (1980).

Id., 502 Pa. at 426, 466 A.2d at 1026.

Therefore, we find Martin v. Soblotney to be of little assistance in this case.

Nor are the cases cited by Ms. Dulaney in her brief on point. Ms. Dulaney relies on Commonwealth v. McKetta, 469 Pa. 223, 364 A.2d 1350 (1976) and United States v. Lanni, 466 F.2d 1102 (3rd Cir.1972), for the principle that statutory interpretation is a function of the court and not the jury. Lanni concerned not the Pennsylvania No-Fault Insurance Act, but a conviction of a union official under the Taft-Hartley Act. McKetta involved a challenge to the trial judge’s determination that a specific, agreed upon substance was dangerous within the meaning of a statute. Both of these cases are inapplicable to the instant question.

We hold that the judge must make an initial determination of whether the facts presented to the jury can, as a matter of law, meet the threshold requirements of the No-Fault Act. If he finds that they can, he must then submit the factual question to the jury. Since the trial judge did just that in this case, we find no basis to reverse his decision.

However, Ms. Dulaney also argues that even if it is within the province of the jury to decide the ultimate factual threshold questions, the court erred in finding, as a matter of law, that Ms. Williams presented sufficient evidence upon which to submit those issues to the jury. In examining this issue, we need only concern ourselves with two thresholds: serious and permanent injury, section 301(a)(5)(A), and the $750.00 of reasonable and necessary medical bills, section 301(a)(5)(B).

First, Ms. Dulaney argues that Ms. Williams did not plead that her injuries were “serious and permanent.” However, in paragraph 6 of the complaint, Ms. Williams stated that the collision resulted in “the infliction of serious and permanent injuries which shall be set forth more particularly hereafter.” R.R. at V. Paragraph 9 of the complaint stated that “as a result of her injuries she is suffering from a disability referrable to her cervical sprain, which is permanent, irreparable and severe.” R.R. at VI. While we note that several of the common pleas courts have required “serious and permanent” to be pleaded with some particularity, we agree with the lower court that it would be a matter of semantics to contend that in her complaint, Ms. Williams had alleged only a “permanent and severe disability” rather than a “permanent and serious injury.”

Ms. Dulaney also argues that Ms. Williams did not present testimony showing that her injury was serious and permanent. The primary testimony on the severity of the injury was by Dr. Cohen, an orthopedic surgeon and Ms. Williams’ treating physician. He testified that her condition was “chronic” (N.T. at 41), that the normal aging process and normal wear and tear would add onto any problem she had at the time of trial (N.T. at 45), that she had to avoid activities involving an increased stress to her cervical spine (N.T. at 44), that she should change jobs (N.T. at 41, 50), and that her future was indefinite (N.T. at 44). The extent of the severity of the necessary changes in Ms. Williams’ lifestyle and job was illustrated by the vocational expert, Mr. Gordon, who testified that her inability to do secretarial work reduced her earning ability capacity to that of the minimum wage, a loss to her of $60,000.00 over her work life expectancy. (N.T. at 87).

The testimony of doctors as expert witnesses need not be stated precisely in statutory language. In re Jones, 432 Pa. 44, 246 A.2d 356 (1968). Expert testimony should be reviewed in its entirety to determine if it expresses the reasonable medical certainty required. Sears, Roebuck & Co. v. Workmen’s Compensation Appeal Board, 48 Pa.Commw. 161, 409 A.2d 486 (1979). Having reviewed the testimony in its entirety, we agree with that lower court that:

Keeping in mind the difficulty in dealing with semantical absolutes, and assuming that the Legislature intended the application of a commonsense test, we are satisfied that Dr. Cohen’s testimony that the Plaintiff’s injury was chronic and her future indefinite as a result, was sufficient to permit the Jury to find that her injury was both severe and permanent. We are therefore satisfied that the testimony did in fact support the Jury’s finding that the Plaintiff met the threshold standard which required her to show a severe and permanent injury.

Lower ct. op. at 5.

Ms. Dulaney also argues that Ms. Williams did not prove that she had met the $750.00 medical threshold because she failed to prove that her medical bills were necessary. However, from both Dr. Cohen’s testimony and Dr. Fawcett’s letters admitted into evidence, the jury could infer the reasonableness of the medical bills. Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979). Nonetheless, the trial court later felt it was bound to hold that the $750.00 threshold was not met, because Dragun v. Volk, 301 Pa.Super. 443, 447 A.2d 1381 (1982), held that any physical therapy expenses over $100.00 could not be included in the $750.00 threshold amount. Once the physical therapy bills were deducted, the amount of medical bills in the instant case fell $8.75 short of the required $750.00. Lower ct. op. at 6. Since the time of the lower court opinion, however, Dragun v. Volk, supra, has been reversed by our supreme court, which held that the costs of physical therapy are not necessarily rehabilitation costs subject to the $100.00 ceiling. Dragun v. Volk, 500 Pa. 613, 459 A.2d 333 (1983). The court then remanded that case for a determination of whether the plaintiff’s physical therapy expenses were rehabilitation costs or reasonable medical services.

We find it unnecessary to remand the instant case for a similar determination. Only one of the section 301 thresholds must be met in any case and we have already held that the serious and permanent threshold was met. Therefore, the issues of liability and damages were properly submitted to the jury.

Turning to the last issue, Ms. Williams cross-appeals that the lower court erred in molding the verdict by deducting $15,000.00 from the jury’s verdict of $90,000.00. The amount deducted represented the possible wage loss benefits collectible by Ms. Williams from her own no-fault insurance carrier under 40 P.S. § 1009.202(b) of the No-Fault Act. In answer to an interrogatory, the jury awarded Ms. Williams $50,000.00 for “lost income to date plus loss of future earnings” and $40,000.00 for “pain and suffering,” for a total verdict of $90,000.00. From this, the trial court deducted the $15,000.00 work loss benefit. It is clear from the evidence presented at trial and the charge given to the jury that all but $1,481.55 of the award for “lost income” was actually compensation for lost earning capacity. It is this amount, and not the full $15,000.00, that Ms. Williams argues should have been deducted from the verdict. We agree.

The Act does not specifically define “loss of future earning capacity.” “Loss” is defined as “accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to ... work loss____” 40 P.S. § 1009.103. “Work loss,” for which the Act provides benefits, is defined as “loss of gross income of a victim____” Id. The plain meaning of the Act is clear: work loss is economic detriment resulting from the inability to work; in other words, the loss of a paycheck. Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 469 A.2d 1382 (1983). However, the concept of work loss is vastly different from loss of earning capacity. The consideration of loss of earning capacity is not solely the comparative amount of money earned before and after an accident. The test is whether there is a loss of earning power and of the ability to earn money. Christides v. Little, 274 Pa.Super. 343, 418 A.2d 438 (1980). An injured plaintiff may recover for loss of future earning capacity whether the loss in capacity actually reduces his earnings or not. Messer v. Beighley, 409 Pa. 551, 187 A.2d 168 (1968); Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983).

Therefore, we hold that the No-Fault Act does not provide basic loss benefits for lost earning capacity, but only for recovery of wages actually lost. The amount of wages actually lost by Ms. Williams, and compensated by her no-fault carrier, was $1,481.55. This amount clearly should be deducted from the jury award. However, there should be no further deduction from the remaining award for loss of future earning capacity, which will not be compensated under the No-Fault Act.

We affirm the judgment of $90,000.00 in favor of Ms. Williams. We reverse the order of the court deducting $15,000.00 from that verdict, and we modify the judgment to $92,713.98.

      . Act of July 19, 1974, P.L. 489, No. 176 §§ 101 et seq., 40 P.S. §§ 1009.101 et seq.

      . Even if this issue were not waived, we find it to be meritless. We are satisfied that a jury question was properly raised, and was decided adversely to Ms. Dulaney.

      . Since the jury by its answer to Interrogatory No. 3, found that Ms. Williams had not suffered a disability which existed for at least 60 consecutive days, Ms. Dulaney was not harmed by the court’s alleged failure to make that determination itself.

      . The court cited Beazley v. Pierce, 19 Pa.D. & C.3d 729 (York Co. 1981); (whether an injury is permanent, irreparable, and severe [under § 301(a)(5)(D) ] is not so clear that the court can remove it as a question of fact for the jury), and Miller v. Brenneman, No. 272, Sept. Term (Chester Co., 1977).

      . See generally, D. Shrager, The Pennsylvania No-Fault Motor Vehicle Insurance Act (1979 at 206-219, and Supp.1983 at 143-155), and the cases cited therein. See also, Walker v. Mayers, 27 Pa.D. & C.3d 1 (Dauphin Co., 1983).

      . Allstate Insurance Co. v. Ruiz, 305 So.2d 275 (Fla.App.1974); Vitale v. Danylak, 74 Mich.App. 615, 254 N.W.2d 593 (1977); Falcone v. Branker, 135 N.J.Super. 137, 342 A.2d 875 (1976); Rugamer v. Thompson, 130 N.J.Super. 181, 325 A.2d 860 (1974); Morell v. Vargas, 83 Misc.2d 30, 371 N.Y.S.2d 828 (1975); Scarola v. Goldman, 81 Misc.2d 977, 367 N.Y.S.2d 186 (1975).

      . Nor do we find the line of cases beginning with Donnelly v. DeBourke, 280 Pa.Super. 486, 421 A.2d 826 (1980), overruled by Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981) (en banc), aff’d Bond v. Gallen, 503 Pa. 286, 469 A.2d 556 (1983), to be determinative of the instant case. These cases concern the commencement of the two-year statute of limitation on tort actions arising from motor vehicle accidents under 40 P.S. § 1009.301, and do not really discuss whether meeting the thresholds under that section is a jury or judicial question.

      . In McKetta, the court stated:
      [A]ppellee and the trial court are undoubtedly correct in their assertion that an issue of fact must be resolved by the jury and that a court cannot intrude upon this function. Schaefer v. United

        States, 251 U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360 (1920); General Electric Credit Corporation v. Aetna Casualty & Surety Co., 437 Pa. 463, 480, n. 21, 263 A.2d 448, 458, n. 21 (1970). It is equally axiomatic that questions of law are for the court to decide and not the jury. Schofield Discipline Case, 362 Pa. 201, 218-219, 66 A.2d 675, 683 (1949). Our difference with the result reached by the court below stems from our belief that the question presented was one of law and therefore solely within the province of the court to resolve.
      A distinction must be recognized between a challenge to the identity of a substance and where the identity is known and its classification is at issue. The former has traditionally been recognized as a factual dispute and its resolution has been left to the trier of fact.

        Id., 469 Pa. at 227, 364 A.2d at 1352. In McKetta, the identity of the substance was known. Applying McKetta to the instant case, if the only question was whether a specific, agreed upon set of injuries or damages meets the threshold requirements, then the question becomes one solely of statutory interpretation, and the judge should decide it. But where, as here, the facts are in dispute, then the jury must make the determination of what the facts truly are.

      . See note 3, supra.

      . 40 P.S. § 1009.202(b) states:
      (b) Work loss limits. — Work loss, as defined in section 103 shall be provided:
      (1) up to a monthly maximum of:
      (A) one thousand dollars ($1,000) multiplied by a fraction whose numerator is the average per capita income in this Commonwealth and whose denominator is the average per capita income in the United States, according to the latest available United States Department of Commerce figures; or
      (B) the disclosed amount, in the case of a named insured who, prior to the accident resulting in injury, voluntarily discloses his actual monthly earnings to his obligor and agrees in writing with such obligor that such sum shall measure work loss; and
      (2) up to a total amount of fifteen thousand dollars ($15,000).

      . We note that molding of the verdict by the trial judge is not a procedure to be used lightly. It is well settled that a trial court has the power to mold a jury’s verdict to conform to the clear intent of the jury. Groh v. Philadelphia Electric Co., 441 Pa. 345, 271 A.2d 265 (1970). The Rules of Civil Procedure authorize the court to mold the verdict if necessary to prevent more than one recovery of the same item of damages. Pa.R.C.P. 1020(d)(3). But the power of the court to mold a verdict is not unlimited and a verdict may not be molded where the intention of the jury is not obvious, where the jury has failed to return a verdict, where the question was never submitted to the jury, or to satisfy the supposed equities of the case. House of Pasta, Inc. v. Mayo, 303 Pa.Super. 298, 449 A.2d 697 (1982). Here, the question of the $15,000.00 set-off was never presented to the jury. While we do not normally encourage the molding of a verdict under these circumstances, we feel that the trial court was merely attempting to comply with its interpretation of the statutory mandate of 40 P.S. § 1009.202(b). The court explained that it felt it was more appropriate for the court to reduce the jury award by that amount, rather than instruct the jury that they should do so, due to the confusion element. Lower ct. op. at 10. Although the court erred in deducting from its verdict $15,000.00, rather than $1,481.55, we cannot fault the trial court for its attempt to conform to the dictates of the legislature.

      . In order to avoid confusion when charging a jury on damages, a trial court should make clear the distinction between actual loss of earnings (wages), both past and future, and loss of future earning capacity. Since the two are entirely different types of damages, in a no-fault case it might be wise to report them as separate amounts. It would then be clear what portion of the damage award could be compensated by the No-Fault Act.

      . It should be noted that Ms. Williams returned to her employment on a full-time basis within ten weeks after the accident. Therefore, it is unlikely that she will suffer any further actual wage loss due to the accident.

      . $90,000.00 verdict — $1,481.55 lost wages = $88,518.45; + $4,195.53 delay damages ($24.25 per day from September 8, 1980 to February 25, 1981) = $92,713.98.


author: ROWLEY, Judge:

text:
    480 A.2d 1088
    Robert R. BISHOP and Bailey Bishop, Administrators of the Estate of John Leboutillier Bishop, Appellants, v. Walter WASHINGTON and Nationwide Insurance Company,
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1983.
    Filed July 6, 1984.

      Fred T. Magaziner, Philadelphia, for appellants.
    William J. Gallagher, West Chester, for appellees.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, JOHNSON and HOFFMAN, JJ.
   ROWLEY, Judge:

In this declaratory judgment action, appellants, the Administrators of the Estate of John Leboutillier Bishop (Administrators), requested the trial court to determine whether the Estate was entitled to receive payment up to the limit of liability coverage for bodily injury under each of two automobile insurance policies issued by Nationwide Insurance Company (Nationwide) despite the clear language contained in exclusionary clauses in each of the policies which prohibited double recovery. Appellants contend that the $25,000 liability coverage limit under one policy should be “stacked” upon the $25,000 liability coverage limit under the second policy, thereby obligating Nationwide to pay a total of $50,000 for injuries sustained by the Administrators’ decedent.

The Administrators and Nationwide filed Cross Motions for Summary Judgment based upon the pleadings, the insurance policies and Nationwide’s Answers to Interrogatories. The trial court denied the Administrators’ motion and granted Nationwide’s motion, holding that Nationwide was only obligated to pay the Administrators the limit of liability coverage for loss due to bodily injury under one policy of insurance. We granted en banc review to consider the application of this Court’s decision in Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974) to the circumstances of this case. Upon a thorough review of the record, we affirm.

The principles governing an order entering summary judgment, and an appeal therefrom, are well settled. Summary judgment will be granted only “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). The trial court must accept as true all well-pleaded facts, resolving any doubts regarding the existence of a genuine issue of material fact against the moving party. Carrollo v. Forty-Eight Insulation, Inc., 252 Pa. Super. 422, 381 A.2d 990 (1977). On appeal, we must examine the record in the light most favorable to the appellant. Speyer, Inc. v. Goodyear Tire & Rubber Co., 222 Pa.Super. 261, 295 A.2d 143 (1972).

The undisputed facts as they appear from the record in this case are as follows. Appellants’ decedent, John L. Bishop, died from injuries he sustained on December 15, 1974, when his Volkswagen was struck from the rear by a bus driven by Walter Washington (Washington) and owned by the First Baptist Church of Coatesville. At the time of the accident, Washington was the owner of an automobile and a truck. Both of Washington’s vehicles were insured by Nationwide under separate, but identical policies. The policy terms provided, inter alia, liability coverage for property damage and bodily injury in the event that the insured was involved in an accident while driving a “non-owned” motor vehicle. Liability coverage for bodily injury under each policy was limited to $25,000 per person. In addition, the policies included an “other insurance” provision which stated, in pertinent part:

For losses involving the use of other motor vehicles, we will pay the insured loss not covered by other insurance. If Property Damage or Bodily Injury Liability coverage in more than one policy applies to a loss, we will pay only up to the highest limit in any one policy. (Emphasis added)

This provision was listed in the policy under the general heading of “Limits of Payment”.

The bus involved in this accident was covered by an insurance policy issued to First Baptist Church of Coatesville by General Accident Group. Following settlement negotiations, General Accident Group paid the Administrators $50,000 — the limit of liability coverage under their policy. The Administrators then demanded a total payment of $50,000 from Nationwide on the ground that Nationwide was liable for $25,000 under the policy issued on Washington’s car and an additional $25,000 under the policy issued on Washington’s truck.

Nationwide paid $25,000 to the Administrators under the terms of one policy, but refused to pay an additional $25,000 under the second policy. The Administrators filed this declaratory judgment action to recover the additional $25,-000. Nationwide maintains that it is only liable for the highest coverage limit in any one policy pursuant to the express limitation contained in the “other insurance” provision.

The parties to this appeal agree that appellant’s damages would be in excess of $100,000, if the case were tried. We point out, however, that a General Release was executed by the Administrators and filed in the court below on July 2, 1980. That document provides:

[The Administrators] for and in consideration of TWENTY-FIVE THOUSAND (25,000.00) DOLLARS payable immediately and the additional sum of TWENTY-FIVE THOUSAND ($25,000.00) DOLLARS if a court of competent jurisdiction shall determine that the defendant, WALTER WASHINGTON’S limit of liability shall be a combined total of $50,000.00/$100,000.00 because of insuring two separate vehicles with Nationwide ... do hereby remise, release and discharge, WALTER WASHINGTON ... from all and all manner of actions and causes of action, suits, debts ... judgments, claims and demands whatsoever in law or equity, especially to No. 47 July Term, 1975, in the Court of Common Pleas of Chester County, regarding an automobile accident which occurred on December 15, 1974 in the Borough of Kennett Square, Chester County, Pennsylvania ...

Thus, Washington will not be held individually liable for any additional losses involved herein, regardless of our decision in the instant case.

On the parties’ Cross Motions for Summary Judgment, the Court of Common Pleas of Chester County determined that the limitation contained in both insurance policies was clearly and simply stated and should be accorded its plain and ordinary meaning. Consequently, the court refused to allow “stacking” of coverage under the second policy upon coverage provided under the first policy.

Appellant’s main contention on appeal is that Nationwide is precluded from relying on the “other insurance” limitation contained in the policies to deny additional liability coverage to Washington because: 1) Nationwide failed to demonstrate that the effect of the limitation was explained to the insured as mandated by Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974); and 2) Washington paid premiums to secure liability coverage under both policies. Because the appeal raised important issues regarding the scope of the Hionis doctrine, it was certified for consideration by the court en banc and arguments were heard on October 17, 1983. In the interim, this Court learned that the Hionis case had been questioned in arguments before our Supreme Court and, thus, our decision herein was delayed pending disposition of that case. On December 30, 1983, the opinion in Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983) was filed. We analyze this case in light of our Supreme Court’s most recent pronouncement regarding principles governing the interpretation of insurance contracts.

In Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974), a restauranteur secured fire insurance to protect against loss to improvements made on the building he leased. The insurance policies provided that he was entitled to full coverage if the improvements were replaced within a reasonable time, but only partial coverage if the improvements were not replaced. When the restaurant was destroyed by fire, the insurer denied full coverage on the ground that the restauranteur had failed to replace the improvements. This Court determined that the insured was entitled to full coverage under both policies despite the exclusionary language contained therein. The Court stated:

When a defense is based on an exception or exclusion in a policy, our Supreme Court has held that such a defense is an affirmative one, and the burden is upon the defendant to establish it. Weissman v. Prashker, 405 Pa. 226, 233, 175 A.2d 63 (1961). Even where a policy is written in unambiguous terms, the burden of establishing the applicability of an exclusion or limitation involves proof that the insured was aware of the exclusion or limitation and that the effect thereof was explained to him. (citations omitted)

The Court specifically determined that the limiting language in the fire insurance policies in Hionis was not to be given effect because it was “technical and unclear” and because the insurer failed to offer any proof of the insured’s awareness and understanding of the exclusion.

Subsequently, our Court relied on Hionis in holding that the insurer has the burden of establishing the insured’s awareness and understanding of an exclusion from coverage before the insurer may rely on the exclusion to deny coverage, even if the policy language is clear and unambiguous. Kelmo Enterprises v. Commercial Union Insurance Co., 285 Pa.Super. 13, 426 A.2d 680 (1981); Klischer v. Nationwide Life Insurance Co., 281 Pa.Super. 292, 422 A.2d 175 (1980); See also, O’Malley v. Continental Insurance Co., 305 Pa.Super. 302, 451 A.2d 542 (1982) (insurer met burden of establishing the insured’s awareness of the exclusion in the policy and its meaning). The federal courts have interpreted Hionis as establishing a rule of insurance contract interpretation in Pennsylvania. See Selected Risks Insurance Co. v. Bruno, 718 F.2d 67 (3rd Cir.1983), and cases cited therein. A number of exceptions to the rule in Hionis have also been recognized. See e.g., McDonald v. Keystone Insurance Co., 313 Pa.Super. 404, 459 A.2d 1292 (1983) and Miller v. Prudential Insurance Co. of America, 239 Pa.Super. 467, 362 A.2d 1017 (1976) (insurer not obligated to prove insured’s awareness of an exclusion where basic coverage did not include incurred loss and insured’s reasonable expectations were fulfilled); Broker’s Title Co., Inc. v. St. Paul Fire & Marine Insurance Co., 610 F.2d 1174 (3rd Cir.1979) and Brezan v. Prudential Insurance Co. of America, 507 F.Supp. 962 (E.D.Pa.1981) (insurer not obligated to prove that exclusion was explained to the insured where parties to insurance contract were of relatively equal bargaining power).

Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983), involved the interpretation of a policy of liability insurance issued by American Empire Insurance Co. (American) to Standard Venetian Blind Co. (Venetian). The policy provided liability coverage for all sums which the insured would be obligated to pay as damages for personal injury and property damage. American was also obligated to defend any suit instituted against the insured on account of such personal injury or property damage. The “Exclusions” section of the policy provided that the insurance did not apply “to property damage to [Venetian’s] products arising out of such products,” or “to property damage to work performed by or on behalf of [Venetian] arising out of the work or any portion thereof or out of materials, parts or equipment furnished in connection therewith.”

When a portico installed for a customer of Venetian, by Venetian’s subcontractor, collapsed during a heavy snowstorm causing damage to the customer’s property stored underneath, American agreed, on behalf of Venetian, to indemnify the customer for the cost of the damaged property and the cost of labor. Nonetheless, American refused to defend Venetian in an assumpsit action brought by the customer and also refused to tender payment for the cost of the portico itself, on the ground that damage to Venetian’s products was expressly excluded from coverage under the terms of the policy. On Venetian’s petition for declaratory judgment, the trial court found that the exclusions were “plain and free of ambiguity”. However, relying on Hionis, the court determined that Venetian was entitled to full coverage for the total loss, since Venetian was not aware of the exclusion and its meaning had not been explained. The Superior Court affirmed by per curiam order and the Supreme Court reversed.

The court reiterated the traditional rules governing interpretation of insurance contracts:

The task of interpreting a contract is generally performed by a court rather than by a jury. See Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979); Community College of Beaver County v. Society of the Faculty, 473 Pa. 576, 375 A.2d 1267 (1977). The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. See Mohn v. American Casualty Co. of Reading, 458 Pa. 576, 326 A.2d 346 (1974). Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. See Mohn v. American Casualty Co. of Reading, supra. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language. See Pennsylvania Manufacturers’ Ass’n Insurance Co. v. Aetna Casualty & Surety Insurance Co., 426 Pa. 453, 233 A.2d 548 (1967). “[I]n the absence of proof of fraud, ‘failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.’ ” Olson Estate, 447 Pa. 483, 488, 291 A.2d 95, 98 (1972), quoting Orner v. T.W. Phillips Gas & Oil Co., 401 Pa. 195, 199, 163 A.2d 880, 883 (1960).

503 Pa. at 304, 469 A.2d at 566. Relying on these principles, the court determined that Venetian could not avoid the application of the clear and unambiguous policy limitations contained in its contract with American. In overruling the Hionis doctrine, the court stated:

We believe that the burden imposed by Hionis fails to accord proper significance to the written contract, which has historically been the true test of parties’ intentions. By focusing on what was and was not said at the time of contract formation rather than on the parties’ writing, Hionis makes the question of the scope of insurance coverage in any given case depend upon how a factfinder resolves questions of credibility. Such a process, apart from the obvious uncertainty of its results, unnecessarily delays the resolution of controversy, adding only unwanted costs to the cost of procuring insurance. Thus, Hionis, which would permit an insured to avoid the application of a clear and unambiguous limitation clause in an insurance contract, is not to be followed.

Id., 503 Pa. at 306, 469 A.2d at 567.

In the instant case, the limitation clause in Nationwide’s policies provides: “If Property Damage or Bodily Injury Liability coverage in more than one Nationwide policy applies to a loss, we will pay only up to the highest limit in any one policy.” The trial court determined that the language of the limitation in the insurance policies issued to Washington was a “model of clarity” and the “essence of simplicity”. The court afforded the words their plain and ordinary meaning and concluded that Nationwide was responsible only for the highest liability coverage limit in any one policy of insurance. We find, as did the trial court, that the limiting language in the policies herein was clear and unambiguous and easily understandable by the ordinary purchaser of insurance. We will not “torture” the language in order to create ambiguity where none exists. See Garber v. Traveler’s Insurance Co., 280 Pa.Super. 323, 421 A.2d 744 (1980). By the terms of these contracts, Nationwide was clearly liable only for the liability coverage limit of $25,000 under one insurance policy for the loss that occurred in this case. The insured may not avoid the application of the clear and unambiguous policy limitation by relying on Nationwide’s failure to prove that the insured was aware of the limitation and that its meaning was explained to him. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. at 305, 469 A.2d at 566.

However, appellants also contend that the “other insurance” limitation in the policies issued to Washington was unconscionable. In Standard Venetian, our Supreme Court tempered its rejection of Hionis:

Although on this record we reject Hionis, we note that in light of the manifest inequality of bargaining power between an insurance company and a purchaser of insurance, a court may on occasion be justified in deviating from the plain language of a contract of insurance. See 13 Pa.C.S. § 2302 (court may refuse to enforce contract or any clause of contract if court as a matter of law deems the contract or any clause of the contract to have been “unconsionable at the time it was made”).

503 Pa. at 307, 469 A.2d at 567. The Uniform Commercial Code, 13 Pa.C.S.A. § 2302, referred to by the Supreme Court, specifically provides in subsection (a):

(a) Finding and authority of court. — If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may:
(1) refuse to enforce the contract;
(2) enforce the remainder of the contract without the unconscionable clause; or
(3) so limit the application of any unconscionable clause as to avoid any unconscionable result.

By its terms, the Uniform Commercial Code — Sales is applicable only to transactions involving the sale of goods “[u]nless the context otherwise requires ____” 13 Pa.C.S.A. § 2102. Nonetheless, many courts have recognized that a wide variety of business transactions are subject to scrutiny under the unconscionability doctrine contained in § 2302. See e.g., Melso v. Texaco, Inc., 532 F.Supp. 1280 (E.D.Pa.1982), aff’d 696 F.2d 983 (3rd Cir.1982) (dealership credit card agreement); Leasing Service Corp. v. Broetje, 545 F.Supp. 362 (S.D.N.Y.1982) (lease agreement); Stanley Klopp, Inc. v. John Deere Co., 510 F.Supp. 807 (E.D.Pa.1981) aff’d 676 F.2d 688 (3rd Cir.1982) (franchise contract); In Re Elkins-Dell Manufacturing Co., 253 F.Supp. 864 (E.D.Pa.1966) (security agreement); Albert Merrill School v. Godoy, 78 Misc.2d 647, 357 N.Y.S.2d 378 (1974) (educational services agreement). In particular, it has been held that the sale of insurance and contracts of insurance are within the scope of the unconscionability section of the Uniform Commercial Code. See e.g., Yankelevitz v. Royal Globe Insurance Co., 107 Misc.2d 636, 435 N.Y.S.2d 900 (1981) rev’d on other grounds; 451 N.Y.S.2d 166, 167, 88 A.D.2d 934 (1982); C & J Fertilizer, Inc. v. Allied Mutual Insurance Co., 227 N.W.2d 169 (Iowa 1975). See generally, 2 R. Anderson, Uniform Commercial Code § 2-302:20 (3rd ed. 1982). Thus, we analyze the insurance contracts herein under the Code concept of unconscionability.

Initially, we note that whether a contract or clause is unconscionable is a question of law for the court. Stanley A. Klopp, Inc. v. John Deere Co., 510 F.Supp. at 810; 13 Pa.C.S.A. § 2302. Generally, the party challenging a contract or a particular contract term has the burden of proving unconscionability. See Argo Welded Products, Inc. v. J.T. Ryerson Steel & Sons, 528 F.Supp. 583 (E.D.Pa.1981); 2 R. Anderson, Uniform Commercial Code § 2-302:12 (3rd ed. 1982). On a motion for summary judgment, a court may conclude, as a matter of law, that a contract or clause is enforceable regardless of an allegation of unconscionability, as long as there is no genuine issue of material fact. Camerlo v. Howard Johnson Co., 545 F.Supp. 395, 397-398 (W.D.Pa.1982); Argo Welded Products Inc. v. J.T. Ryerson Steel & Sons Inc., 528 F.Supp. at 593; Stanley A. Klopp, Inc. v. John Deere Co., 510 F.Supp. at 810.

It is impossible to formulate a precise definition of the unconscionability concept. The drafters of the Uniform Commercial Code have expressed the principle as “one of prevention of oppression and unfair surprise ...” U.C.C. § 2-302, Comment 1. In Witmer v. Exxon Corp., 495 Pa. 540, 434 A.2d 1222 (1981), our Supreme Court quoted the “classic” definition of unconscionability articulated by Judge Skelly Wright in Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C.Cir.1965):

Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.
495 Pa. at 551, 434 A.2d at 1228 quoting Williams v. Walker-Thomas Furniture Co., 350 F.2d at 449.

Appellants contend that the insurance contracts herein were unconscionable on the grounds that: 1) Nationwide took “unfair advantage” of Washington by including the “other insurance” provisions in the policies; and 2) Washington received no additional liability insurance for the premium he paid on his second policy.

Insurance contracts are generally viewed as contracts of “adhesion”. Under such a contract, the parties are usually not of equal bargaining power and the buyer must adhere to the terms of a form contract which are not negotiable. See Brokers Title Co. v. St. Paul Fire and Marine Insurance Co., 610 F.2d 1174 (3rd Cir.1979); Corbin on Contracts, Part I, § 559c at 327 (1984 Supp.). We note, however, that appellants have not alleged that disparity of bargaining power between the parties to this insurance contract resulted in an absence of assent on the part of the insured; nor is there any evidence of record tending to prove that the insured was unaware of the policy terms or that he was deceived in some way by Nationwide. Nonetheless, even assuming that there was a disparity of bargaining power between the parties, it would not be sufficient, by itself, to render the contract unconscionable. Witmer v. Exxon Corp., 495 Pa. at 551, 434 A.2d at 1228; Melso v. Texaco, Inc., 532 F.Supp. at 1297. Once a contract is deemed to be one of adhesion, its terms must then be examined by the court for fairness, in order to determine whether they were unreasonably favorable to one party. Melso v. Texaco, Inc., 532 F.Supp. at 1297; Corbin on Contracts, Part I, § 559c at 327 (1984 Supp.)

The language of a contract clause which limits liability coverage must be clear and precise in order to prevent unfair surprise. See K & C, Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 308-309, 263 A.2d 390, 393 (1970); Stanley A. Klopp, Inc. v. John Deere Co., supra. The insurance policy involved in this case is a “plain talk” policy, written in understandable, straight-forward language. The “other insurance” provision is a conspicuously labeled, bold-type sub-section listed under a larger bold-type heading entitled “Limits of Payment”. This is not a case where an exclusion from coverage that defeats the reasonable expectations of the insured is buried in fine print deep in the insurance contract. Compare, C & J Fertilizer, Inc. v. Allied Mutual Insurance Co., 227 N.W.2d 169 (S.Ct. Iowa 1975). See also, Leasing Service Corp. v. Broetje, 545 F.Supp. 362 (S.D.N.Y.1982); Williams v. Walker-Thomas Furniture Co., supra.

The Nationwide policies issued to Washington do not exclude all recovery for losses such as the one involved in this case. Rather, under the “other insurance” provision, Nationwide confined its obligation to pay bodily injury liability losses to the highest limit in any one policy ($25,-000). The limitation is expressed in precise and conspicuous language and there is no per se rule which prohibits an insurance company from so limiting its liability. Indeed, the premium rate charged by Nationwide to provide coverage under these policies was approved by the Pennsylvania Insurance Commissioner (RR. p. 32a). We do not find that Nationwide took “unfair advantage” of Washington by including the “other insurance” provision in its insurance policies.

Moreover, appellants’ argument that Washington received no additional liability insurance coverage for the premium he paid on his second policy is unpersuasive. For the premium payment made on the second policy of insurance, Washington secured substantial insurance coverage on his pick-up truck. Such coverage was in addition to the insurance provided under his first policy, since that policy covered the operation of another motor vehicle — his car. In particular, he received additional liability coverage since Nationwide was obligated to pay damages for inter alia, bodily injury or property damage sustained by third persons as a result of the operation of Washington’s truck. Nationwide collected two premiums for the two separate policies because it provided protection against the risks attendant to having two insured vehicles on the road instead of one. See Antanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 467 A.2d 345 (1983).

However, appellants argue more specifically that the policies were unconscionable because Washington received no additional liability coverage for that part of his second premium payment which was applicable to the risk that third parties would suffer bodily injury caused by the insured’s use of “other motor vehicles”. In other words, appellants argue that Washington should have been entitled to twice the dollar amount of liability coverage because he paid relatively equal annual premiums on two policies of insurance, and both policies covered the loss that occurred in this case. This argument presupposes that Nationwide calculated its premiums by affixing a separate unit price to each risk of loss covered in a particular insurance policy. Nonetheless, there were countless permutations and combinations of risks assumed by the insurer under the policies issued to Washington, and there is no evidence of record indicating that Nationwide arrived at its premiums by assigning a price tag to each risk. Indeed, Nationwide’s Answers to Interrogatories stated that Nationwide’s premiums were based upon other factors, such as age, sex and marital status of the insured, the type of vehicle, and the policy holder’s residence. It would be impossible for the Court to determine, on the basis of the record in this case, what part, if any, of Washington’s second premium payment was meant to apply to the risk that a third party would sustain injuries caused by the insured’s operation of a non-owned vehicle. See Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 505-509, 464 A.2d 431, 436-438 (1983) (court declines to utilize premium-based proration method to calculate pro rata contribution one insurer is entitled to receive from another because of complications inherent in determining what portion of an insurance premium is paid to cover anyone risk assumed by the insurer). Presumably, Washington’s main purpose in purchasing the second policy was to secure insurance coverage for his truck. Appellants have provided us with no evidence that Nationwide collected twice the amount in premiums for the particular risk attendant to providing “other vehicle” liability coverage, nor is there evidence that Washington’s purpose in purchasing the second policy was to secure double coverage against this specific risk. See Pusti v. Nationwide Mutual Insurance Co., 415 Pa. 318, 326, 203 A.2d 660, 664 (1964).

Accordingly, we find nothing “unconscionable” about the “other insurance” provision contained in Nationwide’s policies as applied to the facts in this case. This is not a case in which the insured bought no insurance for the second premium paid; rather, Washington secured substantial insurance coverage for the operation of his second vehicle. Thus, Nationwide was not precluded from asserting the clear policy limitation on the ground that it accepted a second premium payment. See Pusti v. Nationwide Mutual Insurance Co., supra. Nationwide simply prohibited the “stacking” of payment limits under a policy which provided liability coverage for one vehicle, upon payment limits under a second policy which provided liability coverage for a second vehicle. Allowing the Administrators to recover the payment limits under both policies would require that we “recast” the bargain struck by Nationwide and Washington. We are convinced that such a result is not warranted under the circumstances of this case. Thus, on the basis of the terms of the insurance policies and the undisputed facts of record, we find that Nationwide was liable only for the $25,000 payment limit under one policy issued to Washington.

The trial court’s order entering Summary Judgment in favor of Nationwide is affirmed.

      . Nationwide has not challenged appellants’ right to maintain this action against it.

        . Nationwide offered no evidence that its agent explained the limiting language in the policies to Washington when he purchased the insurance covering his car and his truck. Conversely, the Administrators offered no evidence that Nationwide failed to explain the limiting language to Washington or that Washington was unaware of the meaning of the limitation.

      . We recognize that the Court in Witmer v. Exxon Corp., 495 Pa. 540, 434 A.2d 1222 (1980), expressly declined to reach the question whether the unconscionability doctrine in the Uniform Commercial Code was applicable to a rental adjustment clause in a lease agreement. However, the Court’s opinion in Standard Venetian clearly indicates that a court may police unfair or oppressive insurance contracts under the unconscionability concept in the code.

      . Washington paid an annual premium of $122.60 for insurance coverage on his car and $125.00 for insurance coverage on his truck.