author: BECK, Judge: McEWEN, Judge,

text:
    450 A.2d 24
    John T. MONTI, Appellant, v. ROCKWOOD INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1981.
    Filed Aug. 20, 1982.

      John N. Keller, Waynesboro, for appellant.
    Thomas J. Finucane, Chambersburg, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

Truckman John T. Monti purchased from Rockwood Insurance Company a one year business vehicle insurance policy, (hereinafter “policy”) for his 1972 International Tractor and his 1977 Fruehauf Trailer (hereinafter collectively “the rig”). The policy’s coverages included Liability Insurance, Personal Injury Protection and Uninsured Motorists Insurance.

On January 21, 1980, appellant Monti suffered serious bodily injury when the rig, which he was driving, went out of control and overturned on the Ohio Turnpike. When the accident occurred, the rig was leased to Cardinal Transport, Inc., on whose behalf appellant was hauling freight.

Citing the Personal Injury Protection Endorsement in his policy, Monti applied to appellee Rockwood for payment of benefits in excess of $10,000 to compensate him for his medical expenses and other losses arising out of his accident. Rockwood refused payment, asserting that an exclusion in that endorsement relieved it of liability for these charges.

As a consequence of Rockwood’s refusal, Monti brought a declaratory judgment action requesting the lower court to find that the policy required payment by Rockwood of all allowable expenses, work loss, replacement services loss and attorney’s fees as defined by the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq.

After trial without a jury, the lower court held that the Personal Injury Protection exclusion barred recovery by Monti, and entered judgment for Rockwood. The only issue in this case involves the interpretation of the policy. Because we conclude that the lower court misinterpreted the unambiguous terms of the policy, we reverse and remand.

In interpreting this insurance contract, we are mindful that an insurance policy must be read in its entirety, and its words are to be given their plain and proper meanings. Ranieli v. Mutual Life Ins. Co. of America, 271 Pa.Super. 261, 413 A.2d 396 (1979); Pennsylvania Mfrs.’ Ass’n Ins. Co. v. Aetna C. & S. Ins. Co., 426 Pa. 453, 233 A.2d 548 (1967). Where the policy contains definitions for the words contained therein, the court will apply those definitions in interpreting the policy. Adelman v. State Farm Mut. Auto Ins. Co., 255 Pa.Super. 116, 386 A.2d 535 (1978); Great American Ins. Co. v. State Farm Mut. Ins. Co., 412 Pa. 538, 194 A.2d 903 (1963). A court should read the policy provisions to avoid ambiguities, if possible, and not torture language to create them. St. Paul Fire and Mar. Ins. v. U.S. Fire Ins. Co., 655 F.2d 521 (3rd Cir. 1981). A court should not rewrite terms of a policy or give them a construction in conflict with the accepted and plain meaning of language used in the policy. Adelman, supra.

The policy consists of five documents: (1) the Declarations, summarizing the coverage and limits of the policy (hereinafter “Declarations Sheet”); (2) a document headed “Business Auto Policy” setting forth some of the terms and conditions of the policy (hereinafter “BAP”); (3) an endorsement entitled Basic Personal Injury Protection (hereinafter “P.I.P. Endorsement”); (4) an endorsement entitled “Truckers—Insurance for Non Trucking Use” (hereinafter “Trucker’s Endorsement”); (5) an endorsement entitled “Uninsured Motorists Insurance.”

The Declarations Sheet lists the “1972 Int’L Trac 40197” (sic) and the “1977 Fruehauf Trlr. 85850,” i.e. the rig, as “Covered Autos” under the policy. The Declarations Sheet also lists “Coverages” on the same page, with the benefit limits and the premium paid for each coverage. “Coverages” enumerates Liability Insurance as well as Personal Injury Protection and Uninsured Motorists Insurance. It is essential to point out that the Declarations Sheet notations concerning limits on Personal Injury Protection refer the reader to one and only one other document, the P.I.P. Endorsement.

The P.I.P. Endorsement states that Rockwood will pay any or all personal injury protection benefits “[i]n accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act, for ‘(a) medical expenses, (b) work loss, (c) replacement services loss . . . ’ to an eligible person for bodily injury due to an accident resulting from the maintenance or use of a motor vehicle as a vehicle.” (emphasis omitted.) This coverage, however, is subject to certain exclusions which are also set out in the same section of the P.I.P. Endorsement. Exclusion (a) states: “This coverage DOES NOT APPLY to bodily injury to: (a) the named insured . . . resulting from the use of the named insured’s motor vehicle which is NOT an insured motor vehicle.” In other words, a named insured would not be covered for personal injuries resulting from the use of a vehicle belonging to the insured but not covered for bodily injury liability under the policy.

We note that this exclusion focuses on the identity of the insured vehicle, not on its status for insurance purposes at any particular time or while under any particular use. The exclusion refers to a motor vehicle “which is not,” and not “when it is not,” (emphasis added) an insured motor vehicle.

The insurer has provided aids in the form of a marginal notation and definitions to assist in the interpretation of this exclusion. These aids confirm that the exclusion focuses on the identity of the insured vehicle, as opposed to its status under any particular circumstances. The marginal explanative notation accompanying Exclusion (a) reads: “Other autos if not insured under this policy. ” This interpretation is further supported in the P.I.P. Endorsement’s definitions section: “Insured motor vehicle” is therein defined in pertinent part as a “motor vehicle ... to which the bodily injury liability insurance of the policy applies and for which a specific premium is charged.....” Here, the Declarations Sheet sets forth the rig as an insured motor vehicle for the purposes of bodily injury liability insurance with an annual premium of $137.00. It is therefore clear from an analysis of the P.I.P. Endorsement and the Declarations Sheet that the rig is an insured motor vehicle, and Exclusion (a) of the P.I.P. Endorsement does not apply to it.

The plain language of the Declarations Sheet and the P.I.P. Endorsement unambiguously shows that Monti is entitled to the personal injury protections specified in the policy. Read in conjunction with the Declarations Sheet, there is nothing in Exclusion (a) of the P.I.P. Endorsement from which the insured might reasonably conclude that Exclusion (a) applied to him when driving his rig. Exclusion (a) specifies that the insured is covered for personal injuries, so long as the accident occurs when he is driving an “insured motor vehicle,” i.e. “a motor vehicle ... to which the bodily injury liability insurance of the policy applies and for which a specific premium is charged . . . . ” (P.I.P. Endorsement.) The Declarations Sheet lists the rig as a covered vehicle, with bodily injury liability insurance in a specified amount, and for which a specific premium is charged.

In the final analysis, Rockwood’s claim rests on the Trucker’s Endorsement. This endorsement states in pertinent part:

LIABILITY INSURANCE for a covered auto described in this endorsement is changed as follows:
A. The following exclusions are added:
This insurance does not apply to:
1. A covered auto while used to carry property in any business.
2. A covered auto while used in the business of anyone to whom the auto is rented, (emphasis added only for the word “changed.”)

The Trucker’s Endorsement clearly excludes liability coverage as stated under Liability Insurance on the Declarations Sheet when the rig is being used to carry property in any business. There is nothing on the face of the Trucker’s Endorsement to suggest, however, that this endorsement excludes P.I.P. coverage for the insured himself.

Nevertheless, Rockwood argues that the Trucker’s Endorsement relieves it of liability. It contends that the Trucker’s Endorsement activates Exclusion (a) of the P.I.P. Endorsement under the circumstances of this case. Rock-wood correctly asserts that the effect of the Trucker’s Endorsement is to exclude liability coverage for bodily injury or property damage to third parties that might have been caused in the accident, when the rig was under lease to Cardinal Transport, Inc., and being used to carry freight in that company’s business. Rockwood next reasons that since, in effect, Monti had no liability coverage for an accident occurring under these circumstances, the insured’s rig was “NOT an insured motor vehicle” within the meaning of Exclusion (a) of the P.I.P. Endorsement.

For an accident occurring under these circumstances, Rockwood argues, the rig was not a motor vehicle “to which the bodily injury liability insurance of the policy applies and for which a specific premium is charged.” (emphasis omitted.) Thus, Rockwood contends that the Trucker’s Endorsement exclusion activates an otherwise non applicable exclusion in the P.I.P. Endorsement, and thereby bars appellant’s claim for personal injury protection for an accident occurring under the circumstances of this case.

After a careful study of the terms of the policy, we conclude that Rockwood’s argument is without merit. Indeed, the policy unambiguously provides P.I.P. coverage for the insured under the circumstances of this case. The Trucker’s Endorsement states that the policy does not include liability insurance for the appellant’s rig in some situations. Nowhere does it state that the liability exclusion contained therein places the rig, when this exclusion applies, outside the definition of the “insured motor vehicle” contained in the P.I.P. Endorsement.

Further support for this conclusion is found in the prefatory language of the Trucker’s Endorsement. It states that liability coverage is “changed,” so as not to include injury to third parties under certain conditions. Nowhere in this prefatory statement or any where else in the policy is there language which would lead to the conclusion that liability coverage was suspended and that this suspension would alter the entire scheme of coverage for the insured. The effect of the Trucker’s Endorsement is to exclude liability coverage for injured third parties, nothing more. We hold that the rig, in the circumstances of this case, remains an insured motor vehicle “to which the bodily injury liability insurance of the policy applies and for which a specific premium is charged,” even when subject to the liability exclusion contained in the Trucker’s Endorsement.

This interpretation is further confirmed by the Trucker’s Endorsement’s use of the term “covered auto.” It does not state that the rig ceases to be a “covered auto,” when it is being used “to carry property in any business” or “while used in the business of anyone to whom the auto is rented.” The Trucker’s Endorsement in no way changes, nor does it claim to change the definition of, or the identity of, a covered auto, but rather states that the insurance will not apply to the already defined covered auto under particular circumstances. Thus, the Trucker’s Endorsement does not have the effect of altering the statements on the Declarations Sheet which show the rig to be a covered auto for liability purposes.

Giving the words of the policy their plain and ordinary meaning, and applying the definitions contained in the policy, we conclude that the Trucker’s Endorsement can not reasonably be read to place the rig outside the definition of “insured motor vehicle” contained in the P.I.P. Endorsement, when the rig is being used for the business purposes specified in the Trucker’s Endorsement.

Although we find the insurance contract is unambiguous on the issue at bar, we observe that the meaning of the policy is not readily accessible to the average layman. Indeed, as our analysis indicates, the policy is a morass of endorsements, exclusions, and definitions which are a breeding ground for misunderstandings harmful to both insurers and consumers. Our law does not and should not encourage such unworkmanlike draftsmanship. Indeed, even if we had decided that the policy was susceptible to more than one reasonable interpretation on whether Exclusion (a) applied to appellant, Pennsylvania law would have required that we resolve the ambiguity in the favor of the insured. Buntin v. Continental Ins. Co., 583 F.2d 1201 (3rd Cir. 1978); Ranieli supra; Shamey v. State Farm Mutual Automobile Ins. Co., 229 Pa. Super. 215, 331 A.2d 498 (1974).

Accordingly, we reverse, relinquish jurisdiction and remand to the lower court for further proceedings not inconsistent with this opinion.

McEWEN, J., files a concurring statement.

McEWEN, Judge,

concurring:

I concur in the result. While I embrace the careful and perceptive analysis of the insurance policy by my distinguished and learned colleague and join in the conclusions reached concerning the issue of coverage presently before us, I am hesitant to predict an anticipated result were we confronted with different facts.

      . Appellant was a Pennsylvania resident when he purchased this insurance through Kennett Insurance Services, Inc., Kennett Square, Pa. The policy, entitled Business Auto Policy No. CAP 11268, was effective March 20, 1979.

      . The trial court upheld appellee’s position on the grounds that the policy was unambiguous and did not cover appellant’s injuries. In reaching this conclusion, the trial court mistakenly considered extrinsic evidence. See Blocker v. Aetna Casualty and Surety Company, 232 Pa.Super. 111, 332 A.2d 476 (1975); Ehrlich v. U.S. Fidelity and Guaranty Co., 356 Pa. 417, 51 A.2d 794 (1947).

      . Under the heading “Liability Insurance,” the Declarations Sheet specifies that the rig is covered in the amount of $100,000/$300,000 BI [Bodily Injury], $50,000 PD [Property Damage],” at an annual premium of $137.00.

      . The Declarations Sheet states that the limit for Personal Injury Protection is “separately stated in each P.I.P. endorsement minus - $- ded. applicable to the named insured and relatives only.” (blanks in original).

      . The term “eligible person ” is defined in the endorsement’s “definitions” section as, inter alia the “named insured. ” The “name insured ” is in turn defined as “the person ... named in Item 1 of the declarations,” i.e. appellant.

      . The P.I.P. Endorsement contains the following definitions for the italicized words and phrases in Exclusion (a):

        “bodily injury” or “injury” means accidental bodily harm and resulting illness, disease or death ...

        “named insured ” means the person or organization named in Item 1 of the declarations ...

        “motor vehicle” means any vehicle of a kind required to be registered under the Pennsylvania Vehicle Code ...

        “insured motor vehicle ” means a motor vehicle (a) to which the bodily injury liability insurance of the policy applies and for which a specific premium is charged and (b) for which the named insured maintains security as required under the Pennsylvania No-Fault Vehicle Insurance Act ....

      . On the Declarations Sheet, “Liability Insurance” is differentiated from “Personal Injury Protection.” Liability Insurance is further defined in the BAP as coverage for “all sums the insured legally must pay as damages because of bodily injury or property damage ... caused by an accident and resulting from the ... use of a covered auto.”
      We also note that the Declarations Sheet states in two separate places that the rig is a “covered auto” for liability purposes.

      . Appellee relies on no other exclusion in the P.I.P. Endorsement.

      . The verb “change" is defined as “to make different in some particular but short of conversion into something else.” Webster’s Third New International Dictionary, 373.

      . We further note that although the Declarations Sheet indicates that the Trucker’s Endorsement is an endorsement “contained in this policy at its inception,” the Declarations Sheet no where suggests that Personal Injury Protection is limited by the Trucker’s Endorsement.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    450 A.2d 29
    COMMONWEALTH of Pennsylvania, Appellant, v. Shirley SETSODI.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed Aug. 27, 1982.

      Daniel G. Spengler, Assistant District Attorney, Easton, for Commonwealth, appellant.

      James C. Hogan, Easton, submitted a brief on behalf of appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   HESTER, Judge:

On September 3, 1979 a criminal complaint was filed against appellee, Shirley M. Setsodi, charging her with homicide by vehicle, 75 Pa. C.S.A. Section 3732. A summary citation was also filed charging her with failure to yield the right of way when making a left turn, 75 Pa. C.S.A. Section 3322. On September 5, 1979, an additional complaint was filed against appellee charging her with involuntary manslaughter, 18 Pa. C.S.A. Section 2504. After a full preliminary hearing on September 19, 1979, the district magistrate found a prima facie case on all charges.

On February 6,1980, appellee filed a petition alleging that the Commonwealth had failed to establish a prima facie case in light of Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980). By agreement of both the Commonwealth and the defendant, Judge Freedberg of the Court of Common Pleas of Northampton County, relied on the transcript of the testimony from the district magistrate’s preliminary hearing. On June 9, 1980, Judge Freedberg issued an order dismissing the misdemeanor charges of involuntary manslaughter and homicide by vehicle and remanding the summary offense to the district magistrate. The Commonwealth has appealed the order of June 9, 1980.

Viewing the evidence presented at the preliminary hearing in the light most favorable to the Commonwealth, on September 1, 1979 at approximately 3:45 p.m., the appellee was operating her vehicle in a northerly direction on Pennsylvania Route 611 on Upper Mount Bethel Township in Northampton County. Route 611 is a two-lane road running in a north-south direction. The weather was sunny and the road surface was dry. As appellee approached the driveway of her daughter’s home, which abuts Route 611 on the west, she activated her left turn signal, applied the brakes, slowed and turned left. Her vehicle was struck on the passenger side while in the southbound lane by a motorcycle heading south on Route 611. The cyclist had his headlights turned on. The cyclist, Bryan Gillner, was unable to avoid the collision and died as a result of injuries sustained.

The General Assembly has defined homicide by vehicle as follows:

“Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.” 75 Pa. C.S.A. Section 3732.

The lower court relied on Commonwealth v. Barone, supra, in concluding the Commonwealth had failure to establish a prima facie case of homicide by vehicle. Barone, supra, has, in effect, been reversed by Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), and the decision of this Court, sitting en banc, in Commonwealth v. Koch, 297 Pa. Super. 350, 443 A.2d 1157 (1982).

As a result of these decisions, the elements of the crime of homicide by vehicle have been summarized as follows:

“(1) Defendant deviated from the standard of care established by the underlying vehicle code provision [or municipal ordinance].
(a) Defendant knew, or should have known, he engaged in the conduct claimed to be in violation of the underlying Vehicle Code provision [or municipal ordinance]. (2) A death occurred.
(b) The death was, at the very least, a probable consequence of the defendant’s violation of the underlying Vehicle Code provision [or municipal ordinance].” Koch, supra, 297 Pa. Superior Ct. at 356, 443 A.2d at 1160.

Our review of the record indicates that the Commonwealth has established a prima facie case, as found by the lower court, concerning the summary offense of failure to yield the right of way when making a left turn.

Although homicide by vehicle is not a strict liability crime, “The culpability required by Section 3732 does not fall into one of the categories defined in 18 Pa. C.S. Section 302 (intentionally, knowingly, recklessly or negligently). It is lesser than criminal negligence, 18 Pa. C.S. Section 302(b)(4), which involves a gross deviation from the standard of care of a reasonable person would observe in the actor’s situation. Proof of criminal negligence or recklessness, 18 Pa. C.S. Section 302(b)(3), is required in order to convict defendant of involuntary manslaughter, 18 Pa. C.S. Section 2504.” Koch, supra, 297 Pa.Super. at 356, 443 A.2d at 1160.

In Commonwealth v. Houtz, 496 Pa. 345, 348, 437 A.2d 385, 387 (1981), our Supreme Court has further explained the relationship between the crimes of homicide by vehicle and involuntary manslaughter as follows:

“This legislative ‘expansion’ was accomplished not by the elimination of any of the elements of the crime of involuntary manslaughter, but by a relaxation of the degree of proof of two existing elements: culpable conduct and causation. The crime of involuntary manslaughter, as charged here, requires proof that the actor engaged in the Vehicle Code violation in a ‘reckless or grossly negligent manner,’ and that the death was caused ‘as a direct result.’ 18 Pa. C.S. Section 2504. See Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968). By contrast, under the crime of homicide by vehicle, it must be shown only that the actor ‘knew or should have known,’ that he engaged in the conduct claimed to be in violation of the Vehicle Code, and that, at the very least, death was a ‘probable consequence’ of the conduct. Commonwealth v. Field, 490 Pa. at 525, 417 A.2d at 163. These relaxed degrees of culpable conduct and causation set forth in the crime of homicide by vehicle are necessarily established by proof of more strigent counterparts contained in the crime of involuntary manslaughter.” Koch, supra, 297 Pa.Super. at 357, 443 A.2d at 1160-61.

On the basis of the above, there can be no doubt that the Commonwealth has established a prima facie case of homicide by vehicle against appellee.

The testimony established that appellee made a left turn into a private driveway. While in the opposite lane of traffic, appellee’s vehicle was struck by a motorcycle operated by the deceased victim. The cyclist was unable to stop or otherwise avoid the collision because he was too close when appellee made the turn. Thus, appellee created a hazard by failing to yield the right of way to approaching traffic when making a left turn. The testimony at a preliminary hearing also established that Mrs. Grace Palmer, the operator of the vehicle behind appellee, saw the approaching motorcycle. Two other witnesses in the immediate area also saw the motorcycle with its headlights on.

Mrs. Palmer testified as follows:

“A. No. I wouldn’t say she was going very, very fast, but she was just making her turn and her face was—she was facing her—the house, not the road. I mean her eyes were not on the road or it was on where she was going.
Q. Looking into the driveway where she was turning?
A. Right, right, and the motorcycle was right there with his lights on.
Q. Let me ask you: how fast was the motorcycle coming?
A. Well, I don’t know. I don’t know that. I don’t know.
Q. Well, when did you first see the motorcycle, before or after Mrs. Setsodi began to make her left-hand turn?
A. Oh, I saw him before that. I saw him coming.
Q. I see. How far away—
A. That’s why I thought she was going to stop.
Q. How far away from you was the motorcycle when you first saw it?
A. I don’t know.
Q. How far was the motorcycle from the Setsodi automobile when you first saw him?
A. Well, I would say that when she was making her left turn, he couldn’t have been more than a car or two lengths away.”

From this testimony, as well as the other testimony from the preliminary hearing, it is clear that appellee knew or should have known that she engaged in the conduct claimed to be in violation of 75 Pa. C.S.A. Section 3322; and that death was, at the very least, a probable consequence of her violation of this Section of the Vehicle Code.

The lower court’s dismissal of the involuntary manslaughter charge poses more of a problem, since we consider this case to be borderline. The lower court concluded, “That defendant’s conduct, in the instant case, amounts to nothing more than ordinary negligence.” The lower court relied upon Commonwealth v. Trainor, 252 Pa.Super. 332, 338, 381 A.2d 944, 947 (1977). In that case, “brief inattention” caused the driver of a truck to cross the center! line and sideswipe another vehicle.

We disagree, we find that appellee’s conduct may constitute criminal negligence or recklessness, as defined by 18 Pa. C.S.A. Section 302(b)(3), for the purposes of establishing a prima facie case of involuntary manslaughter. We find that Trainor, supra, is inapposite, since that case involved “brief inattention” and a sideswipe. The collision in the instant case is more analogous to a head-on collision as in Commonwealth v. Smoker, 204 Pa.Super. 265, 268-9, 203 A.2d 358, 360 (1964), where this Court held that driving a vehicle in the wrong lane due to inattention was sufficient to establish recklessness. See also Commonwealth v. Rosov, 262 Pa.Super. 121, 396 A.2d 675, 676 (1978); Commonwealth v. Amecca, 160 Pa.Super. 257, 50 A.2d 725 (1947), in which conviction was affirmed where the accused turned into the opposite lane to avoid rough pavement and struck an oncoming motorcycle. We stated, “It was reckless for the defendant not to observe the approaching traffic ....”, 160 Pa.Superior Ct. at 260, 50 A.2d at 727.

Order affirmed in part and reversed in part and case remanded to the jurisdiction of the lower court for further proceedings consistent with this Opinion.

      . Commonwealth ex rel. Scolio v. Hess, 149 Pa.Super. 371, 27 A.2d 705 (1942); Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978).

      . “The driver of the vehicle intending to turn left within an intersection or into an alley way, private road or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is so close as to constitute a hazard.” 75 Pa. C.S.A. Section 3322.
      It has already been established that it is not necessary for a defendant to be charged with a specific violation of the Vehicle Code as a necessary element of homicide by vehicle. Commonwealth v. Wilkinson, 278 Pa.Super. 490, 496, 420 A.2d 647, 650 (1980); Koch, supra 297 Pa.Super. at 356, 443 A.2d at 1161.


author: WICKERSHAM, Judge:

text:
    450 A.2d 32
    CONTINENTAL BANK v. Robert I. TUTEUR, Appellant (No. 762). CONTINENTAL BANK, Appellant (No. 831), v. Robert I. TUTEUR.
    Superior Court of Pennsylvania.
    Argued March 10, 1982.
    Filed Aug. 27, 1982.

      Manya Kamerling, Philadelphia, for appellant (at No. 762) and for appellee (at No. 831).
    James Golden, Philadelphia, for appellant (at No. 831) and for appellee (at No. 762).
    Before WICKERSHAM, HOFFMAN and LIPEZ, JJ.
   WICKERSHAM, Judge:

These appeals are taken from an order entered on March 3, 1981 by the Honorable Judith J. Jamison of the Philadelphia County Court of Common Pleas. The order denied Tuteur’s motion to strike a judgment entered against him but granted his motion to open the judgment. Tuteur appeals the order denying his motion to strike the judgment and Continental Bank appeals the order opening the judgment.

Jurisdiction over this appeal is granted by Pa. R.A.P. 311, which governs interlocutory appeals as of right. Rule 311(a)(1) provides that an appeal may be taken as of right from an order opening a judgment (Continental Bank’s appeal) or an order refusing to strike a judgment (Tuteur’s appeal).

On January 9, 1979 Continental Bank entered a judgment by confession against Robert I. Tuteur in the Court of Common Pleas of Montgomery County. The judgment was confessed pursuant to a warrant of attorney in a note dated March 15, 1978 and was entered for $92,098.85, the $75,-000.00 principal amount plus interest and attorney’s fees. Ten days later Tuteur filed a petition to strike and/or open judgment in Montgomery County. His petition alleged that the note gave exclusive jurisdiction of all disputes concerning the note to the Philadelphia Court of Common Pleas and, therefore, that the Montgomery County Court of Common Pleas was without jurisdiction to enter judgment. The parties conducted depositions examining the circumstances surrounding the loan arrangement between the borrowers and Continental Bank.

The Honorable Vincent A. Cirillo, then a judge of the Montgomery County Court of Common Pleas, granted Tuteur’s motion to strike the judgment and directed the matter transferred to the Prothonotary of Philadelphia County. Reproduced Record at 21a. Continental Bank filed a complaint in confession of judgment in Philadelphia on November 10, 1980. The complaint sought judgment for $123,-795.63, consisting of the original principal amount plus additional accrued interest and attorney’s fees. On December 10, 1980, Tuteur petitioned the Philadelphia Court of Common Pleas to strike or open the second judgment. Judge Jamison denied the petition to strike but did open the judgment. These appeals timely followed.

In September of 1977, Robert I. Tuteur was a partner in the law firm of Eilberg, Corson, Getson and Tuteur. The firm had recently moved into new offices and needed to make office improvements as well as purchase furnishings. Robert Mitchell, a commercial lending officer of Continental Bank, arranged a loan to finance renovation and furnishing of the new offices. On September 12, 1977 Tuteur and his partners signed a note evidencing their debt to the bank. The partners also signed at least one other blank note.

The note of September 12, 1977 expired and was renewed for another ninety days under a note dated December 15, 1977. The second note was due in March 1978. On January 30,1978, Tuteur notified his partners of his withdrawal from the firm. Tuteur testified that when he left the firm the partnership’s obligations were discussed but no specific agreement was reached on how to discharge any debt. Reproduced Record at 375a. The December 15, 1977 note fell due on March 15, 1978; on that date Allan Getson, one of Tuteur’s former partners, delivered a third note to Continental Bank. The delivered note bore Tuteur’s signature although he testified that he did not remember signing the third note. Reproduced Record at 329a-30a.

The note of March 15, 1978 was due on June 30, 1978. Corson and Getson, who continued practicing law together, paid interest on the note until June 30, 1978. Reproduced Record at 284a. When the loan fell into default, Continental Bank confessed judgment against Tuteur.

Tuteur’s first appellate issue is:

1. Whether the warrant of attorney to confess judgment was exhausted by the prior entry of judgment in the Court of Common Pleas of Montgomery County notwithstanding the fact that such judgment had been stricken. Brief for Appellant at 3.

Tuteur argues that a warrant of attorney to confess judgment is exhausted once it is exercised. Therefore, the initial confession of judgment in Montgomery County exhausted Continental Bank’s warrant of attorney to confess judgment and the bank had no power to confess judgment a second time in Philadelphia. The bank asserts that the terms of the note, which permit more than one confession of judgment, should control.

Initially, we note that the standards governing motions to strike judgments are clearly set forth in the cases. In Bethlehem Steel Corp. v. Tri-State Industries, 290 Pa.Super. 461, 434 A.2d 1236 (1981) we explained:

A petition to strike a judgment is a common law proceeding, Hamborsky v. Magyar Presbyterian Church, 78 Pa.Super. 519, 522 (1922), and operates as a demurrer to the record, Advance Building Services Co. v. F. & M. Schaefer Brewing Co., 252 Pa.Super. 579, 582 n. 3, 384 A.2d 931, 932 n. 3 (1978), citing, Master Homecraft Co. v. Zimmerman, 208 Pa.Super. 401, 222 A.2d 440 (1966). Thus, a petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. Matters dehors the record will not be considered, and if the record is self-sustaining, the judgment will not be stricken. Cameron v. Great Atlantic and Pacific Tea Co., 439 Pa. 374, 266 A.2d 715 (1970); Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969); Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979); Advance Bldg. Services Co. v. F. & M. Schaefer Brewing Co., supra; Metropolitan Federal Savings & Loan Ass’n of Eastern Pennsylvania v. Bailey, 244 Pa.Super. 452, 368 A.2d 808 (1976); Policino v. Ehrlich, 236 Pa. Super. 19, 345 A.2d 224 (1975).

Id., 290 Pa.Superior Ct. at 470-71, 434 A.2d at 1240 (quoting Kophazy v. Kophazy, 279 Pa.Super. 373, 421 A.2d 246 (1980)). In this case, Continental Bank’s complaint in confession of judgment under Pa. R.C.P. No. 2952 filed in Philadelphia states that a judgment on the note was entered in Montgomery County at No. 79-432 and that the judgment was stricken for lack of jurisdiction in Montgomery County. Reproduced Record at 2a. The record thus reveals that Continental Bank entered judgment twice on the same principal debt.

It has long been the rule in Pennsylvania that a judgment may be confessed but once for the same debt. In Scott Factors, Inc. v. Hartley, 425 Pa. 290, 228 A.2d 887 (1967), a confession of judgment was entered by a representative of Scott Factors, Inc., who was not an attorney of any court of record. The warrant of attorney contained in the agreement at issue required confession of judgment by an attorney of a court of record. The first judgment was struck by the lower court and a second judgment was entered in accordance with the terms of the warrant of attorney. The lower court refused to strike the second judgment. Our supreme court ordered the judgment stricken and said:

In Pennsylvania, we have long recognized and permitted the entry of a judgment by confession upon the authority of a warrant of attorney contained in an agreement between the parties. However, fully cognizant of the possibilities of abuse which might arise from the recognition of the right to enter such judgments by confession,'our courts have been strict in passing upon the validity of judgments so entered. The entry of a valid judgment by confession can only be accomplished if such entry is accomplished in rigid adherence to the provisions of the warrant of attorney; otherwise, such judgment will be stricken. The determination of the validity of such judgments rests upon a strict construction of the language of the warrant of attorney and any doubt as to the validity of such judgments must be resolved against the party entering the judgments.
The warrant constitutes a grant of authority by one contracting party to the other, upon the happening of a certain event, i.e., a breach of the terms of the agreement wherein the warrant is contained, to enter that which results ordinarily only after a trial of the issue between the parties, i.e., a judgment. Such judgment when entered carries with it the same legal consequences as any judgment of a court. Not only must the given authority be exercised in the exact manner agreed upon between the parties but also the authority, once exercised, ceases to exist.
Under our case law, it is clear beyond question that, once a judgment has been entered under a warrant of attorney, the authority to use the warrant vanishes and the warrant cannot again be exercised. Upon the entry of a judgment by confession under a warrant of attorney, the warrant is exhausted. . . . [T]his Court said: ‘When the first judgment was entered pro confesso, the power of attorney was exhausted and the warrant became functus officio. After the entry of the first judgment, neither the court, the prothonotary, nor the attorney who confessed the judgment, had power to do any act which would have the effect of giving vitality to an exhausted power. This is a settled rule of law in Pennsylvania and has been recognized by our courts for a century.’ . ..
In the case at bar, upon the entry of the first judgment, even though such entry was not in accord with the provisions of the warrant of attorney, the warrant of attorney ceased to have vitality upon which to enter the second judgment and the court below should have stricken off the judgment.

425 Pa. at 292-94, 228 A.2d at 888-89 (citations omitted). See also, Citizens National Bank of Evans City v. Rose Hill Cemetery Association of Butler, 218 Pa.Super. 366, 368 n. 2, 281 A.2d 73, 74 n. 2 (1971).

Continental Bank would limit the applicability of the general rule to cases where the note does not allow more than one confession of judgment. The bank points out that Tuteur, an experienced attorney, signed a loan agreement that specifically authorized repeated confessions of judgment.

The loan agreement provides that any attorney of a court of record can confess judgment against a borrower and that: “Judgment may be confessed from time to time under the aforesaid powers which shall not be exhausted by one exercise thereof.” Reproduced Record at 12a (emphasis added). The supreme court construed a similar warrant of attorney in American Bowling Club, Inc. v. Kanefsky, 370 Pa. 136, 87 A.2d 646 (1952). The warrant of attorney at issue in American Bowling Club was part of a lease and read: “Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time ...” when rent fell due. Id., 370 Pa. at 136, 87 A.2d at 646. The court held that such a clause could not give authority to enter more than one judgment for the same debt. Id., 370 Pa. at 638, 87 A.2d at 647. Here, Continental Bank has entered judgment twice for the same debt and this it cannot do.

The Philadelphia court judge acknowledged that a judgment cannot be confessed twice upon the same debt but declined to apply the rule to this case because the second judgment was entered pursuant to the order of the Montgomery County court. The Montgomery County court struck the first judgment entered and then ordered the matter transferred to Philadelphia. The opinion of the Philadelphia court states that the order to strike the judgment in Montgomery County “was not to operate in the usual fashion .. . The judgment was not to be nullified in its entirety; rather it was to be erased from the docket in Montgomery County and placed where it properly belonged in Philadelphia.” Lower ct. op. at 4-5.

The Montgomery County order read as follows:

AND NOW, this 1st day of May, 1980, after argument, the Motion to Strike is granted, and the matter is directed to be transferred to the Prothonotary of Philadelphia County.

The order of the Montgomery County court cannot revive the warrant of attorney exhausted by its exercise in Montgomery County; therefore, the Philadelphia court improperly refused to strike the judgment.

Reversed and remanded for proceedings consistent with this opinion.

      . The Complaint, in paragraphs 3-5 provided:
      3. Defendant Robert I. Tuteur executed a Non-Discount Note dated March 15, 1978. A true and correct copy of this note is attached hereto as Exhibit ‘A.’
      4. Defendant Robert I. Tuteur is in default in this note. The amount due is $75,000 principal, interest from June 30, 1978, to October 30, 1980, in the amount of $33,517.94, and 15% percent attorney’s fees of $15,277.69.
      5. A judgment on this Non-Discount was entered in Montgomery County, No. 79-432. On May 1, 1980 this judgment was stricken for lack of jurisdiction in Montgomery County.

      . We do not, of course, decide that such a confession of judgment clause could not be used to collect discrete parts of a debt as they come due. Here, Continental Bank did not use the clause to confess judgment for parts of a debt but rather to confess judgment for the entire debt twice.

      . Tuteur’s second appellate issue is:
      2. Whether the amount of interest was grossly improper in that after default it was computed at the rate applicable during the term of the note rather than the legal rate of interest.
      Continental Bank’s issue in its cross appeal is:
      Whether Tuteur produced evidence which would require a jury to consider whether he revoked authority previously given to Continental Bank to complete the note.
      In view of our disposition of the first issue raised by Tuteur’s appeal, we need not reach these issues.


author: WIEAND, Judge:

text:
    450 A.2d 36
    Michael F. CHORBA, John Stahl, Kay Cadden and Carmen Stambone, Jr., Administrators of the Estate of Carmen Stambone, Deceased, Appellants, v. DAVLISA ENTERPRISES, INC.
    Superior Court of Pennsylvania.
    Argued March 2, 1982.
    Filed Aug. 27, 1982.

      John J. Brazil, Scranton, for appellants.
    Richard S. Bishop, Scranton, for appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

In this equity action the administrators of the Estate of Carmen Stambone, deceased, requested a decree compelling Davlisa Enterprises, Inc. (hereinafter sometimes “Davlisa”) to convey lands which were the subject of an alleged agreement of sale between Davlisa’s grantor, Pennsylvania Coal Co., and Carmen Stambone. The trial court sustained preliminary objections in the nature of a demurrer and dismissed the complaint. We reverse.

A demurrer admits all relevant facts pleaded in the complaint and all inferences fairly deducible therefrom, but not conclusions of law. Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976); Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 139, 320 A.2d 117, 120 (1974); Borden v. Baldwin, 444 Pa. 577, 582, 281 A.2d 892, 895 (1971); Tanenbaum v. Sears, Roebuck and Co., 265 Pa.Super. 78, 81, 401 A.2d 809, 810 (1979). A demurrer may not be sustained unless the complaint evidences on its face that the claim cannot be sustained because the law will not permit recovery. Gekas v. Shapp, supra 469 Pa. at 5, 364 A.2d at 693; Allstate Insurance Co. v. Fiorvanti, 451 Pa. 108, 111, 299 A.2d 585, 587 (1973); Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 503-504, 267 A.2d 867, 868 (1970); Schott v. Westinghouse Electric Corp., 436 Pa. 279, 291, 259 A.2d 443, 449 (1969); Pike County Hotels Corp. v. Kiefer, 262 Pa.Super. 126, 133-134, 396 A.2d 677, 681 (1978). In ruling on a demurrer, a court may not consider factual matters not disclosed in the record. International Union of Operating Engineers v. Linesville Construction Co., 457 Pa. 220, 223, 322 A.2d 353, 356 (1974); Muia v. Fazzini, 416 Pa. 377, 205 A.2d 856 (1965). The court, moreover, may not take judicial notice of the record of another case, if not pleaded. See: Goodrich-Amram 2d § 1017(b):11. See also: Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 309, 243 A.2d 385, 386 (1968); Naffah v. City Deposit Bank, 339 Pa. 157, 160, 13 A.2d 63, 64-65 (1940); Commonwealth ex rel. Milk Marketing Board v. Sunnybrook Dairies, Inc., 32 Pa.Cmwlth. 313, 316 n. 4, 379 A.2d 330, 332 n. 4 (1977). If there is any doubt, the doubt should be resolved in favor of overruling the demurrer; summary judgment should be entered only in cases which are clear and free from doubt. Gekas v. Shapp, supra 469 Pa. at 5, 364 A.2d at 693; Clevenstein v. Rizzuto, 439 Pa. 397, 401, 266 A.2d 623, 625 (1970); Adams v. Speckman, 385 Pa. 308, 309, 122 A.2d 685, 686 (1956); Todd v. Skelly, 384 Pa. 423, 428, 120 A.2d 906, 909 (1956). Judgment should not be entered against a plaintiff if the pleadings indicate that he could state a better case by amendment. Tide Water Associated Oil Co. v. Kay, 168 Pa.Super. 263, 77 A.2d 754 (1951); Goodrich-Amram 2d § 1017(b):11.

The complaint alleges that on or about October 25, 1974, Carmen Stambone paid $3,500 to Pennsylvania Coal Co. as a deposit toward the purchase of a tract of land containing 67.23 acres in the Borough of Olyphant, Lackawanna County. Pennsylvania Coal Co. acknowledged receipt of the deposit by letter signed by its president on the same day. The letter contained a description of the tract and the following paragraph:

This offer is subject to the approval of the Board of Directors of Pennsylvania Coal Company. If your offer is not approved the deposit will be returned to you. If your offer is approved by the Board of Directors it will be subject to the conditions that you close the transaction within thirty (30) days after you receive notice . . . that the deed for the parcels is ready for delivery to you. If you fail to close within said thirty (30) days, the acceptance of your offer will be of no force and effect and your deposit will be forfeited.
NAMES OF THE GRANTEES WILL BE FURNISHED AT A LATER DATE.

The complaint does not disclose that the offer was expressly accepted or approved by the Board of Directors of Pennsylvania Coal Co. On the other hand, the deposit was not returned to the offeror and even now remains in the possession of Pennsylvania Coal Co. Closing, of course, has never been held. Between 1974 and 1977, appellants’ engineer did go upon the land on several occasions to make soil and water studies.

On or about December 5, 1977, the vice president of Pennsylvania Coal Co. forwarded to the administrators of the Estate of Carmen Stambone, who was then deceased, a letter requesting that they “make known their intention as to whether or not they wish to proceed with the purchase of this land at the earliest possible time.” Almost 5¥¿ months later, on May 26, 1978, an attorney for the administrators advised Pennsylvania Coal Co. by letter that the administrators were “exercising our option to purchase the property owned by the Pennsylvania Coal Company relative to the option of October 25, 1974.” The letter concluded, “Please contact me so that we may make arrangements for a closing date.”

On December 28, 1978, the tract was conveyed to “Davlisa,” the appellee herein. The complaint does not aver that Davlisa then had knowledge, active or constructive, of the agreement, if any, between appellants and Pennsylvania Coal Co. or that appellants were then asserting an interest in the land. Although the complaint is silent with respect to such notice, appellants recite in their brief, and appellee agrees, that an action in equity for specific performance had been commenced by appellants against Pennsylvania Coal Co. on November 3,1978, prior to the conveyance to Davlisa. The trial court could not take judicial notice of the pleadings in the prior case. Consequently, the record in the instant case is inadequate to support appellants’ argument that the action in equity for specific performance constituted constructive notice to appellee of appellants’ interest in the tract prior to and at the time when appellee took title thereto on December 28, 1978.

In view of the present state of the record, we are constrained to agree that the complaint failed to state a cause of action. It seems clear, however, that appellants can state a better cause of action if they are permitted to file an amended complaint. Appellants’ decedent had made a deposit of 10% of the price referred to and recited in the written offer of October, 1974. A receipt therefor, executed on behalf of Pennsylvania Coal Co., contained the terms of the sale but was subject to approval by the corporation’s board of directors. Whether the offer was expressly approved and accepted does not appear. However, it does appear from the complaint that for more than four years Pennsylvania Coal Co. retained and exercised dominion over the deposit made by Carmen Stambone without ever rejecting the offer.

Silence will not constitute acceptance of an offer in the absence of a duty to speak. Solis-Cohen v. Phoenix Mutual Life Insurance Co., 413 Pa. 633, 636, 198 A.2d 554, 555 (1964); Howell v. McCloskey, 375 Pa. 100, 104-105, 99 A.2d 610, 612 (1953); Royal Ins. Co. v. Beatty, 119 Pa. 6, 12 A. 607 (1888). See also: Restatement (Second) of Contracts, § 69; 8 P.L.E., Contracts § 24. The facts pleaded in the instant case, however, suggest the existence of such a duty. The offeror had paid to the offeree the sum of $3,500 on account of the purchase of land; and the offeree had agreed that if the offer were not approved by its board, the down payment would be returned to the offeror. The offeree could not thereafter retain and exercise dominion over those moneys for four years while remaining silent. Silence under these circumstances was inconsistent with an intent to reject the offer. Retained possession and the exercise of dominion over the down payment, being inconsistent with the offer- or’s ownership thereof, bound the offeree to the terms of the offer. Restatement (Second) of Contracts, § 69(2) and Comment e.

A party who purchases real estate with notice that his grantor has a prior obligation to convey to another is subject to an action for specific performance by a prior purchaser. 34 P.L.E., Specific Performance § 5. See also: Atlas Portland Cement Co. v. American Brick & Clay Mfg. Co., 280 Pa. 449, 124 A. 650 (1924); Dillinger v. Ogden, 244 Pa. 20, 90 A. 446 (1914); Henry v. Black, 210 Pa. 245, 59 A. 1070 (1904); Maguire v. Heraty, 163 Pa. 381, 30 A. 151 (1894). However, the complaint in the instant case, as we have observed, failed to allege that appellee had notice of an obligation of Pennsylvania Coal Co. to convey to appellants. The briefs of both parties are agreed, nevertheless, that appellants had filed an action for specific performance against Pennsylvania Coal Co. prior to the deed to appellee. If this is factually correct, the action for specific performance was pending when appellee took title. These facts, if pleaded, would establish a basis on which appellants can contend that appellee had constructive notice of appellants’ interest in and to the land.

Lis pendens literally means a pending suit. McCahill v. Roberts, 421 Pa. 233, 237, 219 A.2d 306, 308 (1966). It is construed to be the jurisdiction, power or control which courts acquire over property involved in a suit, pending the continuance of the action and until final judgment. Dorsch v. Jenkins, 243 Pa.Super. 300, 305, 365 A.2d 861, 863 (1976). “[T]he doctrine does not establish an actual lien on the effected property, but rather merely gives notice to third parties that any interest that may be acquired in the property pending the litigation will be subject to the result of the action.” McCahill v. Roberts, supra 421 Pa. at 238, 219 A.2d at 309; Dorsch v. Jenkins, supra 243 Pa.Super. at 305, 365 A.2d at 863.

For these reasons, we conclude that although the trial court properly sustained appellee’s preliminary objections in the nature of a demurrer, it erred when it dismissed the complaint without leave to amend.

Reversed and remanded for proceedings consistent with the foregoing opinion.

BECK, J., concurs in the result.

      . Appellee’s brief would tell us that by letter dated June 5, 1978, Pennsylvania Coal Co. disclaimed knowledge of an option and requested that counsel supply a copy thereof. This fact, however, is not a matter of record and can have no effect on the present decision.


author: CIRILLO, Judge: McEWEN, Judge,

text:
    450 A.2d 40
    COMMONWEALTH of Pennsylvania v. Cedrioue Omar MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1981.
    Filed Aug. 27, 1982.

      Gary S. Fronheiser, Assistant Public Defender, Reading, for appellant.
    George Yatron, District Attorney, Reading, for Commonwealth, appellee.

      Before HESTER, CIRILLO and McEWEN, JJ.
   CIRILLO, Judge:

Appellant, Cedrique 0. Miller, was convicted in a jury trial of resisting arrest. Appellant filed motions for new trial and in arrest of judgment which were denied. He was then sentenced to a term of imprisonment of nine months to two years. This appeal followed.

Appellant asserts that 1) the evidence was insufficient, as a matter of law, to sustain a conviction, 2) the verdict was contrary to the weight of the evidence and 3) the trial court erred in denying defense counsel’s motion for a mistrial when the Commonwealth introduced evidence of appellant’s parole violations. Appellant’s contentions are without merit and we, therefore, affirm.

In appraising the sufficiency of the evidence, we must apply a two-part test. First we must regard the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the factfinder could properly have based its verdict; then we must ask whether that evidence with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981).

The record so viewed, establishes that on March 20, 1980, at approximately 1:15 p.m., two Pennsylvania state parole officers were “tipped off” by the West Reading Borough Police that appellant, a parolee, was living in a West Reading motel. Appellant was required, as a condition of parole, to notify his parole officer of any change in his address, failure to do so constituted a parole violation. Appellant had given his parole officer another address in Reading as his place of residence.

Upon receiving the tip as to appellant’s whereabouts, the parole officers proceeded to the motel, where they were advised that the room in question was registered under the name of “Mike Peoples.” One of the staff of the motel admitted the officers to the room. Upon entering the room, the officers noticed appellant sleeping and noted several parole violations around the room. Appellant was advised that he was under arrest for violation of parole and was told to get dressed. After dressing, appellant “bolted” from the room and got 20 feet outside, only to run into a local police officer coming into the motel. The police officer attempted to restrain appellant but it took the combined efforts of two police officers and the two parole officers to subdue him and take him into custody.

Appellant first contends that the evidence was insufficient to sustain a conviction. Specifically, appellant argues that to be guilty of resisting arrest there must be a “lawful arrest” and here the arrest was illegal because it was made without an arrest warrant.

The offense of Resisting Arrest or other law enforcement is defined as:

A person commits a misdemeanor of the second degree if with the intent of' preventing a public servant from effecting a lawful arrest or discharging any duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance. (emphasis added)

Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa. C.S.A. § 5104.

It is well-settled law that it is for the trial court and not the jury to determine whether the arrest was lawful. Commonwealth v. Franklin, 248 Pa. Super. 145, 374 A.2d 1360 (1977). The lower court was correct in its conclusion that the arrest by the parole officer was lawful. When performing his normal duties, a parole agent is not required to obtain a search warrant. Commonwealth v. Brown, 240 Pa. Super. 190, 199, 361 A.2d 846, 850 (1976). A parole officer has the authority to arrest parolees without a warrant for visible violations of parole. Commonwealth v. Pincavitch, 206 Pa. Super. 539, 214 A.2d 280 (1965). This authority is provided by Section 331.27, Parole Officers as peace officers; powers, which states:

Parole officers appointed by the board are hereby declared to be peace officers and are hereby given police power and authority throughout the Commonwealth to arrest without a warrant, writ, rule or process any parolee or probationer under the supervision of the board for failing to report as required by the terms of his probation or parole, or for any other violation thereof.

Act of August 6, 1941, P.L. 861, § 27, 61 P.S. § 331.27. Reviewing the evidence in light of the applicable law, we find it is sufficient to sustain appellant’s conviction.

Appellant’s second contention is that the verdict was against the weight of the evidence. It is settled that a new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. Antolik v. Kerstetter, 278 Pa. Super. 55, 419 A.2d 1353 (1980). The decision to grant or deny a new trial on this ground lies within the sound discretion of the trial judge. Junk v. East End Fire Dept., 262 Pa. Super. 473, 396 A.2d 1269 (1973), and will be reversed only if he acts capriciously or palpably abuses his discretion. Antolik, supra. In the instant case, the evidence was overwhelming as to appellant’s guilt on the charge of resisting arrest. The uncontested testimony showed that when appellant bolted from the motel room, it took two parole officers to restrain him and take him into custody. Based on the above, it is clear that the jury’s verdict of guilty was not so contrary to the evidence as to shock the court’s conscience. Therefore, we find that the trial judge did not abuse its discretion in refusing to grant a new trial on the ground that the jury’s verdict was against the weight of the evidence.

Appellant’s third and final contention is that the lower court committed reversible error in refusing to declare a mistrial when the Commonwealth brought forth evidence of appellant's parole violations. Specifically, appellant argues that this was tantamount to informing the jury that appellant had a prior criminal record and this was highly prejudicial.

It is well settled that the admission and exclusion of evidence is a matter within the sound discretion of the trial judge. Commonwealth v. Krajci, 283 Pa. Super. 488, 424 A.2d 914 (1981). Accordingly, reversal by an appellate court is inappropriate unless the judge’s ruling on such matters amounts to an abuse of discretion. Commonwealth v. Niemetz, 282 Pa. Super. 431, 422 A.2d 1369 (1980).

The general rule concerning the admissibility of prior convictions is set forth in Commonwealth v. Stokes, 279 Pa. Super. 361, 371-372, 421 A.2d 240, 245 (1980):

• It is well-established that evidence of other criminal activity generally is inadmissible against a defendant at his trial on another charge. The reason behind this rule is that the Commonwealth should probe beyond a reasonable doubt that a defendant has committed the particular crime of which he is accused, without stripping him of the presumption of innocence by proving that he has committed other criminal acts. However, when such evidence is offered to prove matters other than criminal activity, the trial judge, in his discretion may admit it.
We have noted in the past that our cases have not established a per se rule requiring a new trial for every prejudicial reference of this type. The prejudicial effect of the reference may be overcome by cautionary instructions or an appellate court may find that any error was harmless, (citations omitted)

Another exception to the above rule of exclusion was stated in Commonwealth v. Stevens, 237 Pa. Super. 457, 463, 352 A.2d 509, 512 (1975):

There are however, other purposes for which evidence of separate criminal acts may be offered, and when so offered the rule of exclusion is not applicable. One of these purposes is to complete the story of the crime for which the accused is being tried by proving the immediate context of events. This is often classified as proving a part of the “same transaction” or the “res gestae.” The Pennsylvania Supreme Court recently discussed this exception, stating that such evidence is admissible where “ ‘such prior conviction or criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts.’ ” (citations omitted) (emphasis added).

In order to prove the charge against appellant of resisting arrest, the Commonwealth had to prove among other things, that appellant was being “lawfully arrested.” In establishing that a “lawful arrest” was taking place, the Commonwealth properly showed appellant was being arrested by two parole officers for violations of parole. The evidence was offered for the limited purpose of demonstrating the circumstances surrounding the arrest and to place the offense charged in context. Appellant would have this element of the offense tried in a vacuum and without furnishing an explanation as to who the arresting officers were and the reasons for the arrest. In considering a charge of resisting arrest, the factfinder has a right to know the reason for which appellant is being arrested. See Commonwealth v. Markle, 245 Pa. Super. 108, 369 A.2d 317 (1976) (court held it was proper on an indictment for escape to permit the Commonwealth to present evidence that appellant was being held for a felony at the time of the escape). In the instant case, the Commonwealth did not attempt to bring out the details of the parole violations or to develop the specifics of the offense for which appellant was originally convicted and subsequently placed on parole. The trial judge in his instructions to the jury charged that any evidence of appellant’s prior criminal record was not evidence of his guilt of this particular charge and the Commonwealth bears the burden of proving each element of the offense beyond a reasonable doubt.

Since the parole violation by appellant was introduced into evidence for a limited purpose and the court instructed the jury as to its limited use, we find that appellant was not prejudiced and the lower court did not abuse its discretion in refusing to grant a mistrial. See Commonwealth v. Markle, supra; Commonwealth v. Stokes, supra.

Judgment of sentence affirmed.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

I respectfully dissent. The appellant was charged with resisting arrest. The Commonwealth must, of course, prove that the appellant offered resistance during an arrest that was lawful. I conclude that the Commonwealth has not established that there was a lawful arrest and, therefore, would reverse the judgment of sentence imposed.

A review of the testimony presented by the Commonwealth reveals that on March 20, 1980, two Pennsylvania Board of Probation and Parole agents were “tipped off” by Officer Spannuth of the West Reading Borough Police that appellant, who was a parolee under the supervision of Parole Agent Richard C. Shaffer, was in room 125 of the Pennview Motel located in Reading. Agent Shaffer accompanied by his partner Agent Robert Reber apparently then proceeded to the West Reading Borough police station and met Officer Spannuth. The testimony of Officer Spannuth indicates that, prior to the departure of the group from the police station, he telephoned the motel and spoke to the desk clerk or manager of the motel to arrange for access to the room in preparation for the search. Officer Spannuth then transported the parole agents in a West Reading Borough police car to the motel. The testimony of Officer Spannuth established that when they arrived at the motel at approximately 1:15 p.m., both he and Parole Agent Shaffer knocked on the door of the room. Officer Spannuth further testified that, when there was no response to their knocks, “we obtained a pass key to open up the room . .. from a maintenance man . . . employed by the motel.” (N.T. Trial 5-6). The testimony of Agent Shaffer established that he had no reason whatsoever to believe that appellant was in violation of parole until after they had entered the room.

It was further established that prior to their entry into the room, neither the parole agents nor the police officers had procured a search warrant authorizing their entrance to the room. As the majority noted, once they had entered the room, the officers noticed appellant sleeping on the bed and observed several parole violations around the room.

It was not until after the parole agent had entered the room and had observed the parole violations inside the room, that he informed appellant that he was under arrest. At this point both of the parole agents, as well as Officer Spannuth, were in the motel room. After appellant was informed that he was under arrest he made two requests: (1) that he be permitted to use the phone (2) that he be permitted to comb his hair. After appellant had done so, he bolted from the room but ran directly into Borough Police Chief Crawford who happened to be outside the door. Appellant was finally subdued by the officers after a short struggle.

I would hold that the entry into the room and the search were unlawful and that the parole violations observed as a result of the unlawful entry could not, therefore, provide the probable cause necessary for a lawful arrest of appellant. I would, therefore, reverse the Common Pleas Court which concluded that the warrantless search and subsequent arrest was lawful.

It is clear that a parole officer when acting in the course of his administrative duties need not obtain a search warrant before making a search of the living quarters of a parolee to whom he is assigned. Commonwealth v. Berry, 265 Pa. Super. 319, 401 A.2d 1230 (1979). Commonwealth v. Brown, 240 Pa. Super. 190, 361 A.2d 846 (1976); See Smith v. Rhay, 419 F.2d 160 (9th Cir. 1969).

The Pennsylvania Statute governing the authority of parole agents provides:

Parole officers appointed by the board are hereby declared to be peace officers and are hereby given police power and authority throughout the Commonwealth to arrest without warrant, writ, rule or process any parolee or probationer under the supervision of the board for failing to report as required by the terms of his probation or parole or for any violation thereof. 61 P.S. § 331.27.

The Pennsylvania Board of Probation has the responsibility “to make general rules of conduct and supervision of persons heretofore and hereafter placed upon parole.” 61 P.S. § 331.23. These conditions include the requirement that the parolee regularly report to a parole agent, that he live in a specified residence, that he seek permission of the agent before moving or temporarily leaving the jurisdiction, that he avoid “undesirable” companions, the incurring of substantial indebtedness, the excessive use of intoxicating beverages and, that he seek employment. 37 Pa. Code § 63.4; See Commonwealth v. Brown, supra, 240 Pa.Superior Ct. at 195, 361 A.2d at 848.

It is the contention of the Commonwealth that these statutes and the foregoing case law are dispositive of the case before us. We are, however, not so persuaded since the evidence presented at the trial of appellant reveals that the Commonwealth did not establish that appellant had failed to report to his parole agent as required by the terms of his parole agreement, but, to the contrary, the Commonwealth established that the parole agents were not aware, in advance of their entry and search, that appellant was in violation of parole. Indeed, the testimony of agent Shaffer makes quite clear that prior to entering the motel room the parole agents had no reason to believe that appellant had in any way violated his parole. While there was an offer of proof to the effect that the Commonwealth would prove that appellant was in violation of the condition that he not change his residence without notifying his parole agent, the Commonwealth did not introduce any evidence at trial as to (1) a parole agreement reflecting a certain address for appellant as a parolee (2) the parole agreement reflecting the agreement of appellant that he would not move from the address without approval (3) the fact that appellant had changed his residence or (4) any other misbehavior of appellant.

It has been established that parolees, despite having reduced expectations of privacy because of their status, are entitled to the protection against unreasonable searches and seizures afforded by the Fourth Amendment. See United States v. Bradley, 571 F.2d 787 (4th Cir. 1978); Latta v. Fitzharris, 521 F.2d 246 n. 2 (9th Cir. 1975). While Commonwealth v. Brown, supra, makes clear a parole agent does not normally require a warrant, this court also expressed there a certain concern:

When performing his normal duties, a parole agent is not required to obtain a search warrant. We are, however, cognizant of another distinction cited in relevant case law: Once a parole agent involves the police in the search and arrest of a parolee, upholding the search permits the police to circumvent the warrant requirement in what in reality is the normal function of the police.

Id., 240 Pa.Superior Ct. at 197, 361 A.2d at 850; See People v. Coffman, 2 Cal.App.3d 681, 82 Cal.Rptr. 782 (1969). Cf. People v. Thompson, 252 Cal.App.2d 76, 60 Cal.Rptr. 203 (1967), cert. denied, 392 U.S. 930, 88 S.Ct. 2276, 20 L.Ed.2d 1388 (1968); People v. Hernandez, 229 Cal.App.2d 143, 40 Cal.Rptr. 100 (1964), cert. denied, 381 U.S. 953, 85 S.Ct. 1810, 14 L.Ed.2d 725 (1965). The Fourth Amendment right of a parolee to be secure against unreasonable searches and seizures is not violated when his living quarters are searched without a search warrant by his parole officer under circumstances where the parole officer’s conduct is “rationally and reasonably related to the performance of his duty as a parole officer.” (emphasis supplied). People v. Candelaria, 63 App.Div.2d 85, 89, 406 N.Y.S.2d 783, 785 (1978) (quoting People v. Huntley, 43 N.Y.2d 175, 179, 401 N.Y.S.2d 31, 33, 371 N.E.2d 794, 796 (1977)). While it is true that “the basis for holding that a parolee has diminished Fourth Amendment rights is the necessity for an agent to have free access to supervise the parolee.” Commonwealth v. Brown, supra, 240 Pa.Superior Ct. at 197, 361 A.2d at 849, it is also every bit as clear that

[a] parole officer may not conduct a warrantless search of items in a parolee’s possession while acting on the prior request of law enforcement officials and in concert with them. The parole officer is in such case acting, not as the supervising guardian, so to speak, of the parolee, but as the very agent of the very authority upon whom the authority for the search warrant is imposed. To permit concerned effort among officials in an attempt. . . to circumvent [a parolee’s] rights cannot be done.

Smith v. Rhay, 419 F.2d at 162-163. Accord, Commonwealth v. Berry, supra; Commonwealth v. Brown, supra; United States v. Hallman, 365 F.2d 289 (3rd Cir. 1966).

While there is nothing in the record before us which would allow us to conclude with certainty that the police officers engaged the assistance of the parole agents to effect the arrest of appellant and thereby circumvent the warrant requirements of the Fourth Amendment in violation of the principles established in the above cited cases, we nonetheless conclude that this entry and search—conducted without a warrant and without knowledge of parole violation—as well as the subsequent arrest of appellant were unlawful.

This court has held that a lawful arrest is an essential element of the crime of resisting arrest. Commonwealth v. Stortecky, 238 Pa. Super. 117, 352 A.2d 491 (1975); Commonwealth v. Whitner, 241 Pa. Super. 316, 361 A.2d 414 (1976). Since the Commonwealth has not demonstrated that the arrest was a lawful one it has not adequately established the offense of resisting arrest. Therefore, I would reverse the judgment of sentence and order the appellant discharged.

      . a/k/a Mike Peoples.

      . Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa. C.S.A. § 5104.

      . Testimony was limited to the fact that parole violations were the reason for the arrest, enumeration of what the violations actually were was not offered.

      . Our Supreme Court defined abuse of discretion: An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality prejudice, bias or illwill, as shown by the evidence or the record, discretion is abused. Commonwealth v. Niemetz, 282 Pa.Super. 431 n. 12, 422 A.2d 1369, 1376 n. 12 (1980), quoting, Man O’War Racing Ass’n, Inc. v. State Horse Racing Comm’n., 433 Pa. 432, 451 n. 10, 250 A.2d 172, 181 n. 10 (1969).

      . Direct Examination by Assistant District Attorney of Parole Agent Richard C. Shaffer:
      Q. Now in this particular instance, did you have reason to believe, prior to entering that room, that Mr. Miller had violated probation? A. No.
      Q. Did you have reason to believe he was living on North Sixth Street [the address of defendant on parole board records] or the Pennview Motel?
      A. North Sixth Street.
      Q. Now when you entered the room, you had determined that he was in violation, right?
      A. Yes.
      Q. All right. And you placed him under arrest?
      A. Yes.
      Mr. Stevens: Cross Examination.
      By Mr. Fronheiser:
      Q. Mr. Shaffer did you say that you had no reason to believe that Mr. Miller was in violation until you entered the room, is that correct?
      A. Pardon me.
      Q. You had no reason, I believe one of your last statements was you had no reason to believe Mr. Miller was in violation of his probation until you entered the room. Is that correct?
      A. That’s correct.
      Q. And is it true that you did not have any warrant to arrest? A. That is correct.

      . We observe, as has the majority, that there was no evidence presented at the trial, nor is there any indication in the record, as to what the parole violations were.

      . See footnote 1, supra.

      . See footnote 2, supra.


author: JOHNSON, Judge:

text:
    450 A.2d 47
    COMMONWEALTH of Pennsylvania v. Joseph VILLALOZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 16, 1981.
    Filed Aug. 27, 1982.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.

      Douglas M. Johnson, Assistant Public Defender, Norris-town, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

Appellant was charged with Criminal Conspiracy, Criminal Attempt—Theft of Movable Property, Possessing Instruments of Crime, and Burglary. Appellant pled guilty to Burglary and Criminal Conspiracy, and the Commonwealth nol prossed the other charges. On February 13,1981, Appellant was sentenced to imprisonment for a period of two and one-half to ten years. Ten days later, Appellant filed a Motion to Withdraw Guilty Plea and/or Petition for Reconsideration of Sentence. After a hearing on March 20, 1981, the lower court denied both motions. Appellant filed this appeal from the foregoing order on April 14, 1981.

Appellant presents two issues for our consideration. First, did the lower court err when it denied the motion to withdraw the guilty plea? Second, did the lower court impose an unduly harsh sentence?

In discussing his first issue, Appellant presents three reasons why the lower court should have allowed Appellant to withdraw his guilty plea. First, Appellant claims that he believed he would receive a lesser sentence if he pled guilty. After a careful review of the hearing transcript, we are convinced that this argument lacks merit. Appellant’s second reason to withdraw the plea is that he did not enter the plea intelligently and voluntarily. Appellant answered every question and initialed every page of a comprehensive written colloquy. In addition, the court questioned Appellant to determine if his plea was knowing, intelligent, and voluntary. Thus, Appellant’s second argument lacks merit. Finally, Appellant contends that his counsel refused to represent him in a jury trial if Appellant did not pay a fee of $1,000.00. Since Appellant is indigent, he could not pay the fee. This argument is devoid of merit since Appellant testified that his attorney agreed to represent him in a jury trial even if Appellant could not pay $1,000.00. After a thorough review of the record, we are convinced that Appellant knowingly, voluntarily, and intelligently entered his guilty plea. The lower court did not err in denying Appellant’s motion to withdraw his plea.

As his second issue, Appellant contends that his sentence was unduly harsh. Appellant filed a motion for modification of sentence within the ten-day period designated by Pa. R. Crim. P. 1410. Appellant did not appeal to our court until the lower court denied the motion for modification of sentence. Thus, Appellant did not file an appeal until 60 days after the judgment of sentence.

Our court has held that “ ‘a petition for reconsideration does not extend the time for appeal from a judgment of sentence.’ ” Commonwealth v. Thompson, 277 Pa.Super.Ct. 267, 419 A.2d 765 (1980) (quoting Commonwealth v. Wilkinson, 260 Pa.Super.Ct. 77, 393 A.2d 1020 [1978]). The failure of the lower court to act upon the petition for reconsideration within the thirty-day appeal period does not toll the thirty-day period within which an appeal from, the judgment of sentence must be filed. Commonwealth v. Lee, 278 Pa.Super.Ct. 609, 612, 420 A.2d 708, 709 (1980). The lower court’s failure to act upon the petition within the thirty-day period has the same effect as a denial of the motion. Id., 278 Pa.Superior Ct. at 612, 420 A.2d at 709. Also, the Comment to Rule 1410 states:

Under this rule, the mere filing of a motion for modification of sentence and the court’s scheduling of a hearing on the motion do not affect the running of the thirty day period for filing a timely notice of appeal, and the need for the defendant to file his appeal (both of the case or as to the sentence) within that period.

Because Appellant did not appeal from the judgment of sentence within the thirty-day period, Appellant’s issue concerning the alleged excessiveness of the sentence has been waived.

We note that Appellant’s appeal from the motion to withdraw the guilty plea was preserved because, under Pa. R.A.P. 343, the thirty-day period, within which to appeal from the denial of a challenge to a guilty plea, commences on the date of the order denying the motion. Since Appellant filed his appeal within thirty days of the denial of his challenge to the guilty plea, the issue concerning the guilty plea was not waived. As stated above, this issue lacks merit.

For the foregoing reasons, the order is affirmed.

      . 18 Pa. C.S.A. § 903.

      . Id § 901.

      . Id § 907.

      . Id § 3502.

      . See note 1, supra.


text:
    450 A.2d 49
    DISCOUNT DRUG CORPORATION, Appellant, v. HONEYWELL PROTECTION SERVICES, DIVISION OF HONEYWELL, INC.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1981.
    Filed Aug. 27, 1982.

      Mark D. Turetsky, Norristown, for appellant.
    Brian Sullivan, Norristown, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

This is an appeal from a summary judgment that dismissed Appellant’s complaint against Appellee for breach of warranties and negligence. For the following reasons, we reverse and remand for trial.

Appellant leased premises in New York City from a New York corporation (lessor). In a separate agreement, Appellant paid lessor for the use of a burglary alarm system that had been previously installed by Appellee. Appellee was not a party to the aforesaid contract.

Later, Appellant requested the lessor to obtain additional security devices, for which Appellant agreed to pay additional money to the lessor. Pursuant to a contract with the lessor, Appellee installed new devices and integrated them into the general alarm system. Appellant alleges, first, that the new devices did not operate properly since their installation, and, second, that Appellee did not make any effort to correct the problem, despite Appellant’s numerous calls.

Appellant’s premises were burglarized a month after the installation of the new equipment, but the alarm remained silent, allegedly because the system was defective.

Appellant filed the complaint as a third-party beneficiary of the contract between Appellee and the lessor. After pretrial discovery, Appellee’s motion for summary judgment was granted. This is an appeal from the order of April 21, 1981, which granted Appellee’s motion and dismissed Appellant’s complaint.

Appellant raises two issues for our consideration. First, should a summary judgment have been based upon a limitation of liability clause in the contract for installation and service of a burglary alarm system? Second, can a limitation of liability clause bar a claim based on express and implied warranties when the clause neither mentions the warranty nor contains any language which purports to modify or limit any warranties? Because of our disposition of this case, we will discuss only the second issue.

Preliminarily, we note that both Appellant and Appellee, as well as the lower court, agree that New York law applies to the instant case. Since the choice of law is not an issue properly presented for our consideration, we cannot discuss this issue sua sponte.

We proceed, therefore, to consider the issue concerning the limitation of liability clause, which states:

14. Contractor does not represent or warrant that the system may not be circumvented or compromised, or that the system will in all cases provide the protection for which it is installed or intended. EXCEPT AS MAY BE PROVIDED ELSEWHERE IN THIS AGREEMENT, IT IS NOT THE INTENTION OF THE PARTIES THAT THE CONTRACTOR ASSUME RESPONSIBILITY FOR ANY LOSS DUE TO CONTRACTOR’S NEGLIGENT PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR FOR ANY LOSS OR DAMAGE SUSTAINED THROUGH BURGLARY, THEFT, FIRE, OR ANY OTHER CAUSE. Because of the nature of the services to be performed, it is impractical and extremely difficult to fix the actual damages, if any, which may proximately result from the failure on the part of Contractor to perform any of its obligations under this agreement, or from the failure of the system to operate properly. Therefore, if notwithstanding the above provisions there shall at any time be or arise any liability on the part of the Contractor by virtue of this agreement, whether due to the negligence of the Contractor or otherwise, such liability shall be limited to an amount equal to the aggregate of six (6) monthly payments or the sum of two hundred fifty dollars ($250.00) whichever is greater. This sum shall be paid and received as liquidated damages and not as a penalty. This liability shall be complete and exclusive. It is understood and agreed by the parties hereto that the Contractor is being paid for the installation and maintenance of the system only, and is not charging a sum sufficient to insure the premises or property of Subscriber or the property of others on Subscriber’s premises. Insurance, if any, shall be obtained by the Subscriber. IN THE EVENT THAT SUBSCRIBER DESIRES CONTRACTOR TO ASSUME GREATER LIABILITY FOR THE PERFORMANCE OF ITS SERVICES UNDER THIS AGREEMENT, a choice is hereby given of obtaining full or limited liability by paying an additional amount under a graduated scale of rates proportioned to the amount of liability Contractor will assume. If this option is chosen, an additional rider shall be attached to this agreement setting forth the additional liability of Contractor and the additional charge.

The foregoing disclaimer neither mentions the term, “merchantability,” nor employs phrases to indicate that the buyer takes the goods “with all faults” or “as is.” Under section 2-316 of the Uniform Commercial Code of New York, an implied warranty of merchantability cannot be excluded unless the foregoing terms are utilized. Likewise, an implied warranty of fitness for a particular purpose cannot be excluded unless the contract employs language to indicate that no warranties exist beyond the face of the agreement. The relevant portions of section 2-316 state:

(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”
(3) Notwithstanding subsection (2)
(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and
(b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and
(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

The courts have refused to recognize a disclaimer that fails to comply with the foregoing requirements. See Laudisio v. Amoco Oil Co., 108 Misc.2d 245, 437 N.Y.S.2d 502 (1981). Since the disclaimer of liability in the instant case does not meet the requirements of section 2-316, the implied warranties of merchantability and of fitness for a particular purpose have not been waived.

Appellant alleges that the additional equipment, which Appellee installed approximately a month before the burglary occurred, did not function from the time that it was installed.

Since Appellant’s allegations involve a factual controversy, the case must be remanded for trial. If the finder of fact determines that the equipment was defective, Appellant may have a cause of action against Appellee for breach of warranty of merchantability and/or breach of warranty of fitness for a particular purpose.

For the foregoing reasons, the order of April 21, 1981, is reversed; and the case is remanded for trial.

      . N.Y. U.C.C. § 1-101 et seq. (Consol. 62'h).