text:
    523 A.2d 403
    Juliana GABOVITZ, Executrix of the Estate of Albert J. Gabovitz, Deceased, on her own behalf and as representative plaintiff, Appellant, v. STATE AUTOMOBILE INSURANCE ASSOCIATION, Appellee.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed March 23, 1987.

      Richard C. Angino, Harrisburg, for appellant.
    James R. Clippinger, Harrisburg, for appellee.
    Before WIEAND, BECK and WATKINS, JJ.
   WIEAND, Judge:

Juliana Gabovitz, executrix of the Estate of Albert J. Gabovitz, deceased, commenced a class action on behalf of her deceased husband’s estate and also on behalf of others similarly situated to recover post-mortem work loss benefits under Pennsylvania’s No-fault Motor Vehicle Insurance Act. She now appeals from an order of the Court of Common Pleas of Dauphin County which revoked class certification and from the entry of summary judgment in favor of appellee, State Automobile Insurance Association (State Auto). We affirm.

Albert Gabovitz sustained fatal injuries in a motor vehicle accident on February 18,1976. He was insured pursuant to a policy of no-fault insurance which had been issued by State Auto. In April of 1976, Juliana Gabovitz, acting as executrix of her deceased husband’s estate, filed a claim with State Auto to recover funeral and survivor’s benefits. These were promptly paid by State Auto. Over four years later, on November 26, 1980, Gabovitz caused a letter to be sent to State Auto demanding payment of work loss benefits. State Auto denied this claim. Consequently, on December 1, 1980, Gabovitz commenced an action on behalf of her decedent’s estate to recover work loss benefits from State Auto. Later, on June 22,1982, she filed a class action seeking recovery of post-mortem work loss benefits on behalf of her husband’s estate and also on behalf of the estates of all insureds of State Auto who had died in automobile accidents following passage of the No-fault Act.

State Auto filed a motion for summary judgment, contending that Gabovitz’s claim was barred by the two year statute of limitations contained in the No-fault Act. Gabovitz responded that a four year statute of limitations had application, that this period of limitations had been tolled by previously filed class actions, and, in any event, that State Auto was precluded from raising the statute of limitations defense because of equitable estoppel. The motion for summary judgment was denied by the Honorable William Lipsitt on the ground that disputed factual issues remained with respect to the claim of equitable estoppel.

On December 17, 1984, State Auto filed a “Further Motion for Summary Judgment,” which asserted that a four year statute of limitations operated to bar the claim by Gabovitz for work loss benefits. Gabovitz also filed a petition for class certification. The motions of the parties were consolidated for hearing on March 11, 1985. Following hearing, the Honorable Warren Morgan granted the petition for class certification; however, State Auto’s motion for summary judgment was again denied because of unresolved factual issues regarding the claim of equitable estoppel. State Auto filed a motion to reconsider the denial of its motion for summary judgment and the grant of class certification. Argument was held on this motion and, on October 22, 1985, Judge Morgan revoked class certification and granted State Auto’s motion for summary judgment. In so doing, the court concluded as a matter of law that Gabovitz’s claim was barred by the statute of limitations and that State Auto was not estopped from raising the statute of limitations defense. Gabovitz appealed.

Gabovitz raises three issues on appeal: (1) whether, in entering summary judgment for State Auto, the trial court erroneously determined that her claim was barred by the statute of limitations; (2) whether there existed unresolved factual issues as to whether the doctrine of equitable estoppel precluded State Auto from asserting the statute of limitations as a defense; and (3) whether it was error for the trial court to revoke certification of the class action.

“A motion for summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984). In passing upon a motion for summary judgment, a court must examine the record in the light most favorable to the nonmoving party and resolve all doubt against the moving party. Id. 328 Pa.Super. at 141, 476 A.2d at 930-31.” Mariscotti v. Tinari, 335 Pa.Super. 599, 601, 485 A.2d 56, 57 (1984).

An action to recover post-mortem work loss benefits, to be timely, must be commenced within four years after the date of the fatal accident giving rise to the claim. Himmelright v. United States Fidelity & Guaranty Co., 352 Pa.Super. 517, 519, 508 A.2d 594, 595 (1986). See: 40 P.S. § 1009.106(c)(1). Although Gabovitz concedes that her action for work loss benefits was instituted more than four years after the date of her husband’s fatal accident, she argues nevertheless that her action should not be time barred. This is so, she maintains, because the period of limitations had been tolled by two previously filed class actions, Seibel v. Allstate Insurance Co., No. 653-S-1981 (Dauphin Cty.) and Nye v. Erie Insurance Exchange, No. 5349-S-1979 (Dauphin Cty.), in which, she alleges, her husband’s estate was included as a potential class member.

In Miller v. Federal Kemper Insurance Co., 352 Pa.Super. 581, 508 A.2d 1222 (1986), we held that the antitrust action of Seibel did not toll the statute of limitations for assumpsit actions, such as the present one, which seek recovery of work loss benefits. Id., 352 Pa.Superior Ct. at 590, 508 A.2d at 1227-1228. We also decided, however, that the Nye action did have the effect of suspending the statute of limitations for work loss claims, but only as to members of the class defined in Nye. That class was defined to include all previously employed insureds who had died in automobile accidents after November 15, 1977. Id., 352 Pa.Superior Ct. at 595, 508 A.2d at 1230.

The decedent in the instant case, having sustained fatal injuries on February 18, 1976, was not included in the class defined in Nye. The tolling effect of Nye, therefore, is of no avail to Gabovitz. Because Gabovitz’s present action for work loss benefits was not commenced until almost five years after her husband’s death, it is barred by the No-fault Act’s statute of limitations.

Gabovitz maintains, however, that State Auto should be equitably estopped from asserting the defense of the statute of limitations because the insurance company induced her to refrain from filing her action within the time allowed. Because the facts underlying her equitable estoppel argument are still in dispute, she contends, entry of summary judgment by the trial court was premature. We disagree.

“ ‘[I]n the absence of expressly proved fraud, there can be no estoppel based on the acts or conduct of the party sought to be estopped, where they are as consistent with honest purpose and with absence of negligence as with their opposites.’ ” In re Tallarico’s Estate, 425 Pa. 280, 288, 228 A.2d 736, 741 (1967), quoting Northwestern National Bank v. Commonwealth, 345 Pa. 192, 196, 27 A.2d 20, 23 (1942). Thus, “[a] mutual mistake as to the law, knowledge of which is equally available to both parties, cannot raise an estoppel.” Ham v. Gouge, 214 Pa.Super. 423, 426, 257 A.2d 650, 652 (1969). Similarly, an estoppel cannot be created by representations or opinions concerning matters of law. See: 31 C.J.S. Estoppel § 79.

Gabovitz’s theory of equitable estoppel was premised upon three grounds. The first ground was that agents of State Auto had made oral misrepresentations that post-mortem work loss benefits were not recoverable. This claim, however, is completely without support in the record. Indeed, during the hearing before the court on the motion for summary judgment, Gabovitz conceded not only that she had no recollection of any such misrepresentations, but also that she had had no contact whatsoever with agents of State Auto. Even if there had been evidence that agents of State Auto had informed Gabovitz that she was not entitled to recover post-mortem work loss benefits, however, it would not support a claim of equitable estoppel. Such a representation, even if made, would have been nothing more than an expression of legal opinion. As such, it would not give rise to an estoppel. See: Ryan v. Lumbermen’s Mutual Casualty Co., 485 S.W.2d 548 (Tenn.1972).

Closely related is Gabovitz’s second ground for asserting an estoppel. It must fail for the same reasons which require rejection of the first.ground. She contends that she was misled by a provision within the policy of insurance issued by State Auto which purported to exclude recovery for post-mortem work loss benefits. The substance of this provision, however, merely reflected the legal opinion of State Auto that payment of post-mortem work loss benefits was not required by the No-fault Act. Thus, it could not form the basis for a claim of equitable estoppel. State Auto’s interpretation of the No-fault law was not unreasonable in 1976 when the fatal accident occurred. It was not until 1980 that the Pennsylvania Supreme Court finally determined that a surviving spouse could recover work loss benefits on behalf of his or her deceased husband or wife. See: Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). And it was not until 1983 when it was decided that the estate of a deceased victim could recover such benefits. See: Freeze v. Donegal Mutual Insurance Co., 504 Pa. 218, 470 A.2d 958 (1983). State Auto is not estopped from asserting the preclusive effect of the statute of limitations merely because it relied upon a reasonable, albeit erroneous, interpretation of the No-fault Act. Knowledge of the provisions of the Act was equally available to Gabovitz. Had her interpretation of the Act differed from that of State Auto, she could have commenced an immediate, or at least a timely, action to obtain judicial interpretation. Her failure to do so must be deemed the result of her own mistaken belief that post-mortem work loss benefits were not required by the Act. At best, there was a mutual mistake regarding the requirements of the law. A mutual mistake as to the law, however, does not give rise to an estoppel. See: Ham v. Gouge, supra.

The final ground asserted by Gabovitz in support of her equitable estoppel argument concerns the failure of State Auto to give her formal notice in April of 1976 that it would not pay her post-mortem work loss benefits. She concedes that she did not request payment of such benefits until November of 1980. Nevertheless, she argues, State Auto had an affirmative duty to inform her, at the time she filed her original claim for benefits in April of 1976, of all possible benefits, including those which were not then recognized. We reject this argument. No such duty was imposed upon insurers by the No-fault Act, and we decline to recognize such an obligation here. To do so would impede rather than expedite the processing of no-fault insurance claims and, in so doing, would violate one of the primary objectives of the No-fault Act. Neither fraud nor deception can be implied merely because an insurance company awaited a specific demand for post-mortem work loss benefits before giving formal notice to its insured that such benefits would not be paid. This is especially true in view of the fact that such a claim was generally not recognized until this Court did so for the first time in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982).

In summary, the record is clear that the delay by Gabovitz in filing her claim for work loss benefits was attributable not to any action or inaction on the part of State Auto, but rather to her own mistaken judgment that such benefits simply were not available under the No-fault Act. As we have already suggested, Gabovitz’s misconception regarding her right to recover is not a ground upon which an estoppel will lie. As a matter of law, therefore, State Auto is not estopped from asserting the defense of the statute of limitations. There being no disputed issues of material fact, the trial court properly entered summary judgment in favor of State Auto.

In order to maintain a class action, each of the following prerequisites must be satisfied:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

Pa.R.C.P. 1702.

Although the trial court in the instant case originally certified the Gabovitz action as a class action, it later revoked class certification for the following reasons: (1) that because of the equitable estoppel issue, Gabovitz’s claim lacked commonality and typicality and, therefore, a class action would not be an efficient method of adjudication; (2) that Gabovitz did not possess the commitment necessary to act as an adequate class representative because she displayed a total ignorance of and lack of interest in the action; and (3) that because Gabovitz’s claim was time barred, the purported class lacked a representative plaintiff with a viable claim.

A trial court order regarding class certification “will not be disturbed on appeal unless the court failed to consider the requirements of the rules or abused its discretion in applying them.” Miller v. Federal Kemper Insurance Co., supra 352 Pa.Super. at 598-599, 508 A.2d at 1232, quoting Janicik v. Prudential Insurance Co. of America, 305 Pa.Super. 120, 127, 451 A.2d 451, 454 (1982). After careful review of the record, we conclude that the trial court neither overlooked the prerequisites for class certification nor abused its discretion in determining that they had not been met. See: Chmieleski v. City Products Corp., 71 F.R.D. 118 (W.D.Mo.1976) (class representatives who failed to offer any evidence which would establish that they were aware of their responsibility as class representatives, and who did not show that they either desired or were capable of conducting the proposed class litigation failed to demonstrate that they were adequate class representatives); Brunda v. Home Insurance Co., 353 Pa.Super. 146, 509 A.2d 377 (1986) (not error for trial court to decertify class action where claim of only named representative plaintiff was barred by the statute of limitations). See also: Miller v. Federal Kemper Insurance Co., supra; Janicik v. Prudential Insurance Co. of America, supra.

For the foregoing reasons, we affirm both the entry of summary judgment in favor of State Auto and the order of the trial court which revoked class certification.

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

      . Gabovitz suggests in her brief that it was error for Judge Morgan to overrule Judge Lipsitt’s prior decision to deny State Auto’s motion for summary judgment. We disagree. Although a trial judge ordinarily should not place himself in the position of overruling a decision by another judge of the same court in the same case, where new evidence is placed on the record in the interim between the first trial judge’s ruling and the second trial judge’s reassessment, it is not improper for the second trial judge to reach a result different than the result reached by a colleague where the later result is based upon the new evidence. See: Melendez v. City of Philadelphia, 320 Pa.Super. 59, 62 n. 2, 466 A.2d 1060, 1062 n. 2 (1983). In the instant case, there was neither error nor abuse of discretion by Judge Morgan when, on the basis of new evidence elicited at hearing on March 11, 1985, he overruled the prior decision of Judge Lipsitt and granted State Auto's motion for summary judgment.


source: Caselaw Access Project

author: PER CURIAM: TAMILIA, Judge,

license: Public Domain

text:
    523 A.2d 758
    COMMONWEALTH of Pennsylvania v. Bruce DIVINCENZO, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed Feb. 24, 1987.
    Petition for Allowance of Appeal Denied Aug. 28, 1987.
    Dennis Haines, Erie, for appellant.
    Timothy Lucas, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   PER CURIAM:

The following judgments of sentence are vacated and appellant is discharged:

At No. 444 of 1984, one to two years for Count 5, indecent assault.

At No. 445B of 1984, one to two years for Count 3, indecent assault; one to two years for Count 4, simple assault; one to two years for County 6, simple assault; one to two years for count 8, simple assault; one to two years for Count 13, indecent assault; and one to two years for Count 14, simple assault.

The remaining judgments of sentences imposed on the final indecent assault, and various burglary, rape, and attempt convictions are affirmed.

TAMILIA, J., files a concurring and dissenting opinion.

TAMILIA, Judge,

concurring and dissenting:

This is an appeal from judgment of sentence entered following a jury trial wherein appellant was convicted of multiple rapes, burglaries and related crimes. I write separately on the concurrence as well as the dissent as the majority will file an unpublished Memorandum whereas I believe the issues raised in sentencing are of sufficient importance to warrant publication of the dissent. Therefore, an entire analysis will be more understandable than publishing only that aspect relating to sentencing.

Appellant’s convictions arose out of a series of criminal assaults against eight separate female victims in the Erie area between December 4, 1983 and February 13, 1984. Initially, three informations charged appellant with numerous offenses including burglary, rape, criminal attempt, indecent assault and simple assault. At the conclusion of trial, appellant was found guilty on all counts, with the exception of one count of burglary and one count of simple assault at information No. 445-B of 1984. A rape charge at information No. 445-A of 1984 was reduced to indecent assault pursuant to a plea of nolo contendere. The aggregate sentence imposed was a term of imprisonment totalling 81 to 162 years, composed of eight terms of 10 to 20 years and a term of 1 to 2 years, all to be served consecutively. A concurrent term of imprisonment of 5 to 10 years was also imposed in addition to seven concurrent terms of 1 to 2 years.

In this appeal, appellant has raised five alleged points of error for our review. The first two concern the ineffectiveness of trial counsel and will be considered simultaneously. Appellant contends that trial counsel was ineffective for failing to challenge, via post-verdict motions, both the sufficiency of the evidence and the joinder of the various offenses for trial.

The initial inquiry, upon review of ineffectiveness claims, must be to determine whether the issue underlying the complaint is of arguable merit. Thereafter, our focus shifts to whether the course of action chosen by trial counsel had some reasonable basis designed to effectuate the interests of his client. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Kerpan, 508 Pa. 418, 498 A.2d 829 (1985).

The first of appellant’s claims is that the evidence was insufficient to sustain the verdict because it was wholly circumstantial. Recently our Supreme Court has stated, in Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985), “We have long held that circumstantial evidence alone can be sufficient to convict a defendant of a crime.” (citations omitted).

In determining whether the evidence is sufficient to support appellant’s multiple convictions, we must view all the evidence, together with all reasonable inferences therefrom, upon which the fact finder could have based its verdict and then ask whether that evidence, when viewed in the light most favorable to the Commonwealth, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Hamilton, 339 Pa.Super. 1, 3, 488 A.2d 277, 278 (1985); Commonwealth v. Crawford, 334 Pa.Super. 630, 632-633, 483 A.2d 916, 917 (1984). The Commonwealth’s burden to prove guilt beyond a reasonable doubt may be met by relying on wholly circumstantial evidence. Commonwealth v. Shirey, 343 Pa.Super. 189, 494 A.2d 420 (1985).

After a thorough review of the trial transcript, it is evident that the circumstantial evidence presented in the case sub judice, viewed in a light most favorable to the Commonwealth, was clearly sufficient to prove appellant’s guilt beyond a reasonable doubt. Due to the voluminous testimony taken at trial, it behooves us to forgo a lengthy recitation of the individual crimes, but note, infra, the similarities in the episodes with which appellant was charged.

Since it is apparent from the record that there was sufficient evidence to convict appellant of all charges, trial counsel cannot be held ineffective for failing to perform a futile act; any post-trial motion based on the sufficiency of the evidence would have been unsuccessful. See Commonwealth v. Davis, 313 Pa.Super. 355, 459 A.2d 1267 (1983).

Appellant further contends that trial counsel’s failure to challenge the consolidation of the offenses for trial through post-trial motions, notwithstanding his timely motion to sever the sets of offenses for trial, constitutes ineffectiveness. It is well established that the propriety of consolidating separate indictments for trial is a matter of discretion with the trial judge, and his decision will be reversed only for manifest abuse of discretion or prejudice to the defendant. Commonwealth v. Thomas, 328 Pa.Super. 393, 399, 477 A.2d 501, 504 (1984).

The test of whether consolidation is proper is related to the test of whether evidence of one crime may be admitted at the trial for another. The present rule in Pennsylvania is that the consolidation is proper (i.e., the denial of a motion for severance is not an abuse of discretion) if (1) the facts and elements of the two crimes are easily separable in the minds of the jury; and (2) the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other, (citations omitted)

Commonwealth v. Galloway, 302 Pa.Super. 145, 154, 448 A.2d 568, 573 (1982); Commonwealth v. Terrell, 234 Pa.Super. 325, 328, 339 A.2d 112, 114 (1975).

Additionally, evidence of other crimes is admissible to prove: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the other; or (5) identity. Thomas, 328 Pa.Superior Ct. at 400, 477 A.2d at 505.

Thus, offenses may be joined for trial where the separate offenses show the defendant’s unusual or distinctive modus operandi. In order to establish a common thread between crimes,

[t]he Commonwealth must show more than the other crimes are of the same class as the one for which the defendant is being tried. Rather, there must be such a high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others.

Commonwealth v. Morris, 493 Pa. 164, 176, 425 A.2d 715, 721 (1981).

No error is evident in trial counsel’s failure to challenge, via post-trial motion, the consolidation of the offenses for trial. First, it is clear that the facts of the incidents were easily separable in the minds of the jury. The evidence of each episode was not complex and there has been no suggestion that the consolidation caused the jury to be confused in weighing the evidence. Moreover, the incidents are so similar in perpetration that they can properly be placed in that uncommon category of crimes where they are deemed to be of common scheme, plan or design. See Thomas, supra.

In support of this conclusion, the record establishes the following similarities: (1) all assaults occurred at approximately the same time during the evening and only on nights the appellant’s wife was working; (2) entry was made through the front door in all but one case; (3) all the victims were physically assaulted and, in the cases where the victims could not control the situation, were sexually assaulted; (4) all sexual assaults were done from the rear and there was never a vaginal ejaculation; (5) in all the sexual assaults, a lubricant was used and the substance was wiped up or removed by the perpetrator; (6) in all cases, the perpetrator was a white male wearing a dark knit ski mask which covered his entire face except his eyes; (7) in all cases, the perpetrator wore a dark ski jacket or dark nylon jacket and wore gloves; (8) the victims were all young white females; and (9) all the assaults occurred in the same general neighborhood over a nine-week period.

Therefore, since joinder of the episodes was proper, counsel can not be held ineffective for failing to pursue the claim in post-trial motions since such claim would have been properly denied. See Davis, supra.

Appellant also asserts that he was given concurrent terms of imprisonment for offenses that should have been deemed to merge, as a matter of law, with other offenses for which sentence had also been imposed. Specifically, appellant was sentenced to two consecutive terms of imprisonment of 10 to 20 years for rape and burglary against one victim and also two concurrent terms of 1 to 2 years for indecent and simple assault against her. Likewise, two consecutive terms of imprisonment of 10 to 20 years were imposed for rape and burglary against a second victim as were two concurrent terms of 1 to 2 years for indecent and simple assault. Concurrent terms of 1 to 2 years were also imposed for simple assaults against two other victims in conjunction with consecutive terms of 10 to 20 years for burglaries. Finally, a concurrent term of 1 to 2 years was imposed for indecent assault against a fifth victim in addition to a consecutive term of 10 to 20 years for burglary. This issue can be easily resolved as the Commonwealth concedes that the court erred in imposing the aforementioned concurrent sentences. It is clear, pursuant to 18 Pa.C.S.A. 3502(d), that sentencing appellant on both the burglary charges and the lesser included offenses of indecent and simple assault constituted error. 18 Pa.C.S.A. 3502(d) provides that:

A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.

Therefore, I agree with the majority in vacating the concurrent sentences for indecent and simple assault while affirming the sentences for burglary and rape. There is no need for a remand to resentence appellant on these matters since it is clear the court below, by imposing concurrent terms for the merged offenses, intended to treat the other offenses as the principal and controlling crimes. See Commonwealth v. Nelson, 337 Pa.Super. 292, 486 A.2d 1340 (1984).

On a related point, appellant asserts ineffectiveness of counsel for his attorney’s failure to challenge the constitutionality of 18 Pa.C.S.A. 3502(d) (supra). Appellant claims this provision draws an irrational distinction between offenses which will merge or not merge with the principle offense of burglary. This argument stems from appellant’s consecutive terms of 10 to 20 years for two rapes imposed as well as consecutive terms of 10 to 20 years imposed for two burglaries. Appellant’s contention is totally devoid of merit. The burden rests with appellant, who is alleging unconstitutionality, to show that the provision “clearly, palpably and plainly violates the constitution.” Commonwealth v. Sutley, 474 Pa. 256, 260-261, 378 A.2d 780, 782 (1977) (citations omitted). In Commonwealth v. Whetstine, 344 Pa.Super. 246, 496 A.2d 777 (1985), Cirillo, J. (now President Judge) stated:

The doctrine of merger of offenses for sentencing insures that separate sentences are not imposed for what in practical effect was a single criminal act. Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980). In deciding whether offenses merge, the question is whether the offenses charged “necessarily involve” one another, or whether any additional facts are needed to prove additional offenses once the primary offense has been proven. See Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981). In deciding merger questions, we focus not only on the similarity of the elements of the crimes, but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed but a single criminal act. Commonwealth v. Boettcher, 313 Pa.Super. 194, 459 A.2d 806 (1983).
Additionally, we note that analysis of merger claims traditionally has revolved around the concept of injury to the sovereign; in order to support the imposition of more than one sentence, it must be found that the defendant’s conduct constituted more than one injury to the Commonwealth. Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d 207 (1985); Commonwealth v. Padden, 335 Pa.Super. 51, 483 A.2d 950 (1984); cf. 18 Pa.C.S. § 110(1)(iii)(A) (multiple convictions permitted when same conduct violates different statutory provisions “intended tq prevent substantially different harm[s] or evil[s]____”).

Id., 344 Pa.Superior Ct. at 251, 496 A.2d at 779-780.

A rational legal base exists in addition to the statute 3502(d) which clearly distinguishes between a felony and lesser crimes for a proper enhancement of sentence for the more serious crime. The legislature clearly intended that where the major crime, burglary, was found to be committed, it was not in the public interest to sentence also on the subsidiary crime; however, when the secondary offense was of equal seriousness to the primary offense, both justified a sentence.

Appellant has not met this burden by merely alleging the statute in question is irrational. Therefore, counsel cannot be held ineffective for failing to raise the constitutionality of a statute when there has been no showing by appellate counsel that the statute is, in fact, unconstitutional. Trial counsel will not be held ineffective for failing to raise a baseless claim. See Davis, supra.

Appellant further asserts that evidence seized from appellant at the time of his arrest was obtained in violation of his right to be free from unreasonable searches and seizures. At the time of appellant’s apprehension, the police seized several items of physical evidence including: his clothing, a bottle of “Keri” brand lotion taken from appellant’s person, a ski mask taken from the front seat of his car, a cooking mit located in the rear seat of the car and a pair of panties and a handkerchief taken from the hood of a parka being worn by appellant’s daughter. Appellant now claims that all items were the fruit of an illegal detention that preceded his arrest and that the panties and handkerchief were the fruit of an illegal search of his daughter. A careful review of the record supports the lower court’s conclusion that there was sufficient probable cause to detain and arrest appellant, and thus the search incident to that arrest was proper.

Finally, appellant challenges his sentence as being excessive; first, in exceeding the sentencing guidelines by imposing the maximum punishment allowable by law for the offenses, and second, in light of the imposition of consecutive terms of imprisonment. Appellant was sentenced to eight consecutive terms of imprisonment of 10 to 20 years each for the commission of eight first degree felonies. These sentences, combined with a 1 to 2 year consecutive sentence imposed on a related count, total a minimum of 81 years imprisonment and a maximum of 162 years imprisonment. (Concurrent terms of imprisonment imposed are not considered in the calculation of the total minimum and maximum sentence.)

Initially, I note that a sentencing court may deviate from the sentencing guidelines if a written statement of its reasons is provided. Commonwealth v. Chesson, 353 Pa. Super. 255, 509 A.2d 875 (1986); Commonwealth v. Mills, 344 Pa.Super. 200, 496 A.2d 752 (1985); Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984); 42 Pa.C.S.A. § 9721(b). It is also well established that trial judges are vested with broad discretion in sentencing and appellate courts will interfere only if the sentence exceeds the statutory limits or upon a showing of manifest abuse of discretion. Commonwealth v. Arent, 352 Pa.Super. 520, 508 A.2d 596 (1986); Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985); Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985). A trial judge is required to state his reasons for the sentence reflecting his consideration of the Sentencing Code, the circumstances of the offense and the character of the offender. White, supra; Commonwealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246 (1983); 42 Pa.C.S.A. § 9721. The statement is not required to cite specifically to the Sentencing Code but must demonstrate that the factors in the Code have been considered. White, supra; Commonwealth v. McCall, 320 Pa.Super. 473, 467 A.2d 631 (1983); Kane, supra.

In exceeding the sentencing guidelines by imposing maximum sentences, the court stated its reason for so doing:

My reasons for doing this are that in each one of these incidents involving the several victims, the Defendant’s attitude and plan was so calculated and so callous as to be an absolute and complete disregard for the rights of others. An examination of the facts will show that in one instance, the Defendant even threatened to harm an infant child if the mother of that infant child did not submit to him. Next, the crimes that he committed were particularly heinous, and the results and the trauma thereof particularly long-lasting to the victim____ It is the opinion of the court that if the maximum is to have any meaning whatsoever, that this is a case in which it must be imposed____

(Record 34 A, Reasons for Sentencing Outside the Guidelines, 3/7/85, p. 2).

It is also clear, from a review of the sentencing transcript, that the court was aware of the minimum and aggravated range of the sentencing guidelines for each of the offenses with which appellant was charged. (S.T. 3/7/85, pp. 35-38). The court further considered a presentence investigation report and stated appellant was “mentally disabled, severe, and a danger to himself; and he has mixed disturbances of emotion and conduct.” (S.T. 3/7/85, p. 32). Having determined that the court considered the relevant factors when sentencing appellant, I see no need for further recitation of such factors.

Although the court’s comments demonstrate that it generally considered the factors relevant to the proper determination of a sentence, I would nonetheless find the court has committed an abuse of discretion in sentencing appellant to consecutive terms of imprisonment for the rape and burglary charges resulting in a net minimum term of 81 years imprisonment. I would find the sentence to be excessive under the circumstances.

In Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986), we said:

What we find objectionable is the total length of the minimum sentence. Although none of the individual sentences is excessive, the cumulative sentence is. See Arent, supra. A sentence must be imposed based on the minimum amount of confinement that is consistent with the gravity of the offense, the need of the public for protection and the rehabilitative needs of the defendant. Arent, supra; Parrish, supra; Commonwealth v. Campolei [284], Pa.Super. [291], 425 A.2d 818 (1981); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), 42 Pa.C.S.A. § 9721(b).
Although we agree with the trial court that the offenses are serious in nature, we do not think the protection of the public and the rehabilitative needs of appellant mandate such a sentence.
Our specific objection to the sentence is based on the court’s imposition of six (in this case nine) consecutive sentences. The same considerations which are involved in imposing a single sentence should also be the basis for determining the appropriateness of consecutive terms of imprisonment rather than concurrent. Martin, supra. This would apply equally when sentencing convictions of multiple crimes arising from the same or separate incidents when tried at the same time.
It is clear that the court focused on the nature of the crimes rather than the totality of the requirements mandated by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and the Sentencing Code, 42 Pa.C.S.A. §§ 9722-9725. At § 9725, Total confinement, the Sentencing Code provides:
§ 9725. Total confinement
The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.
Unquestionably the court was justified, under this section, to impose a sentence of total confinement, and pursuant to section 9727, consecutive sentences were also permissible. However, in the language of the statute above, in addition to the nature and circumstances of the crime(s), the court must also consider the history, character and condition of the defendant.

Id., 353 Pa.Superior Ct. at 478-79, 510 A.2d at 762. To impose a minimum sentence of 81 years on appellant is, in effect, an imposition of a life sentence with no conceivable possibility of parole. Eighty-one years of incarceration precludes the possibility of rehabilitation and effectively removes appellant from society for the remainder of his natural life. It is also necessary to weigh the effect of a cumulative minimum sentence of 81 years, which would take a relatively young man through the prime of his life for a term six times as long as the average life sentence under a system which, unlike the federal system or that of other states, does not permit review and parole upon good behavior in substantially less time than the minimum sentence provides. The trial court recognized all of the above, stating: “It’s the intention of this Court that you do, in fact, spend the remainder of your life in prison.” (S.T. 3/7/85, p. 40). While not in any way diminishing the heinous and depraved nature of appellant’s conduct, I think a more appropriate sentence could be structured. Since it is unlikely that for at least the latter fifty years of the sentence the appellant would be a threat to society (he is presently 33 years of age), such a sentence appears to be directed toward retribution and punishment rather than the needs of society; this is despite the fact that the court stated:

The various factors which I consider in addition to these, retribution, no, there isn’t a place in our penology for retribution. We don’t go an eye for an eye, we try to accomplish something.

(S.T. 3/7/85, p. 40).

In his own words, the court expressed the intent to make an example of the appellant, stating:

Deterrence, yes. This sentence that I am going to impose will deter you from ever doing this again and one can only hope that the message that goes out of this courtroom with respect to deterrence is that anyone else contemplating making such a conscious decision to prey upon others will think twice about it and decide to seek help rather than to seek gratification at the expense of others.

(S.T. 3/7/85, p. 41).

I would not take seriously the majority’s attempt at minimizing the effect of this sentence as being greater than that of a life sentence or that his future is not “as bleak as it would appear.” (Majority Memorandum, p. 6). The majority points out that pursuant to 62 P.S. § 1053, 37 Pa. Code § 94.3, appellant could be transferred to a prerelease program after serving one-half his minimum sentence. Assuming appellant should live so long, it is inconceivable that the parole board would consider having a person in prerelease for forty-one and one-half years, and at any rate, appellant would be seventy-three and one-half years old at the time, making it useless as a rehabilitation tool. The second suggestion of the majority, that appellant could request commutation of sentence by the Board of Pardons is equally untenable. The grant of such a request is no more likely than the appellant being given a good conduct medal for his behavior. Research and observation on the role of commutation and pardons on the correctional process shows it to be nil. The following comment illustrates this.

Except insofar as they may create public interest in particular cases, appeals to the executive for a pardon or commutation of sentence do not greatly affect the criminal-law process nor have they, in the past, represented a very important branch of criminal appeals. Rather, this appeal process is a seldom-used mechanism for either alleviating injustices or, more importantly, for making the criminal law responsive to political considerations at the executive level of government.

Ch. 17, Appeals from Criminal Convictions, p. 674. Handbook on Criminology (Daniel Glaser ed. 1974) Rand McNally College Pub. Co., Chicago.

A recent example of this is the political advertisement of the Lieutenant Governor, during the Gubernatorial campaign, that he, as Chairman of the Pardon Board, had commuted no criminal sentences during his eight years in office. Sentencing should not be subject to the vagaries of political or public opinion. The Pardon Board particularly reflects differing philosophies from one administration to another which are unrelated to the thoughtful, analytical and while sometimes inadequate, scientifically oriented concepts of sentencing contained in modern sentencing codes such as the one we are dealing with here.

The court in this case did focus primarily on the nature of the crimes, made a decision that rehabilitation was impossible (“This Court stands by its earlier statement that even with the best system, this defendant could not be rehabilitated.” (Slip Op., Nygaard, J., 4/3/85, p. 2)) during defendant’s lifetime and made a decision that he would never walk the streets again. In doing so, he turned away from the sentencing guidelines which provide for sentences in the aggravated range in cases precisely such as this where the crimes are heinous, rehabilitation prospects are limited and prior records are extensive. Again, turning to the above statement by the court in his Opinion, the Court also rules out the possibility that within the next 80 years, the psychosocial biological sciences will achieve success in treating violent sexual disorders. Comments on this aspect are fully developed in Chapter 4, Biological and Psychophysiological Factors in Criminality, by Saleem A. Shah and Loren H. Roth, National Institute of Mental Health, in the Handbook on Criminology, supra,:

Money (1970) and other workers at Johns Hopkins University are investigating the effectiveness of Provera (a progestational compound with anti-androgen effects) with sexual offenders.
A more recent report by Cooper et al. (1972) describes the results of anti-androgen therapy (using cyproterone acetate) in three cases of hypersexuality accompanied by compulsive and aggressive sexual behavior. One of the cases, for example, involved a 40-year-old man who had made a number of sexual assaults upon his 15-year-old daughter, and had manifested various other forms of sexually deviant behavior. In all cases there was considerable erotic arousal and compulsive sexual fantasies, along with poorly controlled behavioral manifestations of such urges. Administration of the drug resulted in reductions in erotic fantasies, sexual urges, and related sexual behaviors in all cases. In addition to the sexual inhibitory effects, the drug also had an unmistakable general tranquilizing action. Three weeks after stopping the drug, sexual responsiveness had returned to pretrial levels, along with increases in levels of plasma testosterone. Thus, the effects of the drug are not only quick, but they are readily reversible with no side effects or toxic manifestations noted. Moreover, there were no signs of feminization (an advantage over estrogen), and both clinical and endocrine effects were completely reversible after eight weeks.
Pharmacological treatment in certain cases (e.g., assaultive and violent individuals and those convicted for sexual crimes) has possible advantages where very long penal sentences are typically provided. Similarly, in twenty-eight states there are special laws pertaining to “sexual psychopaths” (and similarly designated sexual and other dangerous offenders) which provide for their indeterminate confinement (Brakel & Rock, 1971).
With further advances in therapeutic methods, appropriate outpatient treatment and handling of such offenders could offer an alternative to long-term confinement in penal and related institutions. Moreover, while the endocrine agents used with sex offenders do not have lasting effects after the drug is discontinued, their treatment could be accompanied with other forms of behavioral therapy designed to bring about better discrimination and control in the expression of sexual urges without running afoul of the law.
We do wish to emphasize, however, that prior to the use of these treatment modalities further research is needed to ascertain the consequences (after- and side effects) of long-term use of such drugs, as well as to obtain more precise information about their effectiveness based upon carefully controlled experimental studies. Since incarceration, especially for long-term and indeterminate periods, reflects a very stringent and even deleterious form of social control, the possibilities for community-based treatment could offer a socially acceptable, as well as a more humanitarian, approach to the treatment and handling of such offenders. Use of these drugs in legal settings, however, would clearly require very careful monitoring in order to guard against possible misuse of such therapeutic procedures.

Id. at 152.

It is clear that the court has substituted his view of the sentencing system and not that imposed by the legislature. The court stated:

Sentencing guidelines, while approved of and followed by this court in 90% of its sentences, do have a serious flaw. It is this: No statistical analysis can ever fully take into account the flesh and blood defendant who is standing before the Court for sentence. Some defendants look worse “on paper” than they really are — some look “better” than they really are. In the instant case, Mr. Divincenzo’s guidelines provided for a sentence which was less severe than the Court believed was necessary.

(Slip Op., 4/3/85, p. 2).

In summation, after due consideration to matters properly considered by the court in opting for a harsh sentence, those considerations that went beyond the principle of individualized justice were: 1) deterrence to anyone else contemplating similar crimes; 2) the court’s intention that the defendant spend the rest of his life in prison; 3) the court’s finding that rehabilitation is impossible; and 4) the court’s determination that the guidelines are seriously flawed and are thereby not to be followed.

In so doing, the trial judge went too far in substituting his independent views for the structure imposed by law, designed to create a fair, just and universal (statewide) standard of sentencing. The legislature, by implementing the guidelines, studied the problem thoroughly and considered uniform sentencing codes and similar guidelines in existence elsewhere. It also involved the judges and penal authorities in the process. It thus provided a system which assures, to a greater degree than ever before in Pennsylvania, that punishment will be graded according to both severity of the crime and potential for rehabilitation, measured to some degree by prior criminal records. It allowed for considerable discretion in the trial judge within sentencing ranges to tailor the sentence to individual situations. It also provided judicial discretion to go outside the guidelines in rare and unusual cases, which, however, must meet a stringent test and establish that the guideline ranges are inadequate to serve the purposes of sentencing. Finally, the guidelines provide for uniformity of sentencing so that defendants throughout the Commonwealth, convicted of identical crimes under similar circumstances, will receive approximately the same sentence and to assure that there is uniform sentencing throughout the state. This is vital in a democracy to assure its citizens that justice is evenhanded and fair, punishment will be consistent and reasonably certain and the individual sentenced will not be subject to vacillating fads and philosophies of penology or politics but be treated in a manner that provides both protection to society and rehabilitation. Also, the correctional system is much better able to manage prisoners who have been sentenced in a manner consistent with other prisoners similarly charged.

It is apparent that with the onset of the sentencing guidelines, our jails have become overloaded so they cannot be said to favor leniency as opposed to more stringent sentences. Unquestionably, some judges would opt for more serious penalties, while others would wish for less. The guidelines appear to have struck a fair and reasonable middle ground. The studies conducted by the Sentencing Commission establish that they are working well and fulfilling the legislative objective. As we become more confident of their fairness and appropriateness, we should also be less willing to permit them to be ignored. We do not hesitate to remand for resentencing when the sentence is outside the guidelines, when too lenient, Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985), and we are now paying equal attention to those sentences which go outside the guidelines in the direction of unreasonable harshness.

As in Drumgoole, where the court held that the lower court is not permitted to “factor in” considerations in mitigation already factored into the guidelines, to avoid imposing any sentence, so should we hold that considerations already built into the aggravated guideline range may not be considered a second time to go beyond the guidelines in imposing a sentence of incarceration more severe than indicated. Widespread excessive sentences can backfire and lead to increasing overcrowding of prisons resulting in legislation or federal court orders empowering prison officials to release prisoners after short periods thus effectively nullifying the vaunted discretion in the trial court to determine length of incarceration. This is no idle consideration as the prisons of 34 states are now under federal court order and the power to release is now in the hands of prison officials in those states.

To illustrate by comparison this sentence with all other sentences for either burglary or rape, monitored by the Pennsylvania Commission on Sentencing in 1985, the following is informative:

The overall average sentence for rape was 56.9 to 128.2 months (4-3/4 to 10-2/3 years).
A single reported rape sentence exceeded these ranges (conceivably the sentence under review here)

Since most of the sentences imposed in this case were on the burglary charges underlying the rape charges, a similar analysis of reported burglary sentences is in order.

Thus taking the longest average sentence for those rapes reported (5.3 years min. — 11.9 years max.) and aggregating eight consecutive terms based on that average, we derive a sentence of 42.4 years minimum and 95.2 years maximum. This compares with the present sentence of 80 years to 160 years.

Applying the averages given for burglaries since the appellant was sentenced in most of the cases on burglary charges underlying the rape, taking the longest average sentence for burglary (2.9 minimum to 6.8 maximum), the total sentence on eight consecutive charges would be 23.2 to 54.4 years, again compared to 80 to 160 years.

The needs of society could just as well be met, with less cost to the taxpayers and without complete disregard for appellant, by a sentence which combines total incarceration with long periods of parole and/or probation. A significant period of incarceration is still in order, however, I would find a minimum of 81 years imprisonment to be excessive. The guidelines provide for an aggravated range of sentences when justified and would more than adequately meet the sentencing needs here. The guidelines were intended to establish fair and consistent sentences throughout the Commonwealth and to eliminate disparity in sentencing. When they are ignored, even with the reasons stated here by the trial judge, and maximum sentences are imposed in each case assuring no possibility of parole before death, I believe the legislative intent has been ignored and discretion has been abused. If this was the legislative intent, the legislature could have provided for mandatory life sentences in multiple rape cases. The trial judge’s statement that he intended that the appellant spend the rest of his life in prison indicates he imposed a life sentence without possibility of parole, a sentence which the legislature never intended. In this case, the sentence imposed is 54 years over the máximum of the aggravated range permissible under the guidelines.

In comparison, Jerry Whitworth, convicted of selling vast amounts of classified Navy coding material and cryptographic key lists to the Soviet Union through the John A. Walker spy ring, received a sentence totalling 365 years, which would make him eligible for parole in 60 years. His treason allowed the Kremlin to decode one million United States navy messages between 1974 and 1983 and was “the most important operation in KGB history” and “would have been devastating to the United States in the event of war.” (UPI, Sanfrancisco, July 24, 1986). Obviously those crimes and the present are noncomparables, but it illustrates the fact that even with the most heinous crimes (nothing is more heinous than jeopardizing the nation and every man, woman and child in it), our system provides a limitation on punishment. Eligibility for parole in 60 years for Jerry Whitworth is a slap on the wrist compared to 81 years before parole consideration is given to the appellant.

I would vacate the judgments of sentence imposed on the final indecent assault, various burglary, rape and attempt convictions and remand for resentencing.

      . Burglary 18 Pa.C.S.A. 3502 (6 counts)
      Criminal Attempt (rape) 18 Pa.C.S.A. 901 (2 counts)
      Indecent Assault 18 Pa.C.S.A. 3126 (3 counts)
      Rape 18 Pa.C.S.A. 3121 (2 counts)
      Simple Assault 18 Pa.C.S.A. 2701 (4 counts)
      Criminal Attempt (involuntary deviate sexual intercourse) 18 Pa.C. S.A. 901 (1 count)


author: HOFFMAN, Judge:

text:
    523 A.2d 768
    COMMONWEALTH of Pennsylvania v. Norman BOND, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1987.
    Filed March 30, 1987.

      Richard S. Packel, Media, for appellant.
    Dennis C. McAndrews, Assistant District Attorney, Wayne, for Com., appellee.
    Before CIRILLO, President Judge and ROWLEY and HOFFMAN, JJ.
   HOFFMAN, Judge:

These are consolidated appeals from the judgments of sentence for robbery and related offenses. Appellant contends that the sentencing court erred in applying the mandatory sentencing provisions contained in 42 Pa.C.S.A. § 9712, because the Commonwealth failed to prove that appellant possessed a “firearm” as that term is defined in § 9712(e). For the reasons that follow, we affirm the judgments of sentence.

On August 20, 1984, appellant pled guilty to a total of nine charges on two criminal informations, which arose out of two separate incidents. The Commonwealth later notified appellant and the lower court of its intention to pursue mandatory minimum sentences on each information, pursuant to 42 Pa.C.S.A. § 9712. At the sentencing hearing, the Commonwealth attempted to prove that appellant visibly possessed a firearm during each of the two incidents, thus mandating a minimum sentence of five years total confinement on each information. The lower court, finding that the Commonwealth met its burden under § 9712, imposed the following mandatory sentence. On Information number 2132-84, appellant was sentenced to three five-to-ten-year terms of imprisonment, and one one-to-two-year term of imprisonment, all terms to be served concurrently. On Information number 2311-84, appellant was sentenced to three five-to-ten-year terms of imprisonment, all terms to run concurrently. The court further specified that the sentences under Information number 2311-84 were to run consecutively to the sentences imposed under Information number 2132-84. The total period of confinement thus was ten-to-twenty years. Appellant’s motion to modify was denied, and this appeal followed.

Appellant contends that the lower court erred in sentencing him pursuant to the mandatory minimum sentencing provisions contained in 42 Pa.C.S.A. § 9712, because the Commonwealth produced insufficient evidence to prove that the weapon he possessed in both incidents was a “firearm” as that term is defined in § 9712(e). Under § 9712 the sentencing court is required to impose a minimum sentence of five years of total confinement, if the court determines, by a preponderance of the evidence, that the defendant “visibly possessed a firearm” during the commission of, inter alia, a robbery. 42 Pa.C.S.A. § 9712(a), (b). Section 9712(e) defines a “firearm” as

any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.

Id.

Appellant does not deny that he possessed a weapon during these two incidents. The issue, instead, is what type of evidence the Commonwealth must produce to prove that the weapon possessed was a “firearm” for purposes of § 9712(e). Appellant argues that, to prove that a weapon “will or is designed to or may readily be converted to expel a projectile,” the Commonwealth must introduce “objective proof” of operability and cannot rely on mere inferences. Brief for Appellant at 13. To objectively prove operability, appellant apparently would require the Commonwealth to introduce evidence that the weapon was fired, was recovered and examined, or that its operating mechanism was observed by a witness. Here, appellant emphasizes, “there is no evidence that the firearm in question was discharged nor was the firearm recovered [n]or its internal mechanism otherwise observed.” Id. at 13, 17. Appellant thus concludes that, because the Commonwealth failed to introduce objective evidence that the gun was operable, it failed to prove by a preponderance of the evidence that appellant possessed a “firearm” under § 9712, and thus the lower court erred in applying the mandatory sentencing provision to him.

The parties have cited no cases, and our research revealed none, detailing the type and quality of evidence that the Commonwealth may introduce to prove that a weapon is a “firearm” under § 9712(e). In Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973), however, the Pennsylvania Supreme Court, in an analogous situation, observed that the Commonwealth need not introduce “direct evidence” to show that a weapon was operable, and thus was a “firearm” for purposes of the Uniform Firearms Act. 452 Pa. at 498, 307 A.2d at 844.

In Layton, the defendant was convicted under the following section of the Uniform Firearms Act:

No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or under his control.

18 Pa.C.S.A. § 6105. The Court stated that, because the Uniform Firearms Act “was obviously intended to cover only objects [firearms] which could cause violence by firing a shot,” the defendant could not be convicted under § 6105 unless the weapon he possessed was operable, i.e., was capable of firing. Commonwealth v. Layton, supra. Turning to the question of how the Commonwealth could prove operability, the Court then stated that “[a] reasonable factfinder may, of course, infer operability from an object which looks like, feels like, sounds like or is like, a firearm. Such an inference would be reasonable without direct proof of operability.” Id. (emphasis added). See also Commonwealth v. Yaple, 238 Pa. Superior Ct. 336, 338, 357 A.2d 617, 618 (1976) (victim’s testimony sufficient to prove that appellant possessed firearm; Commonwealth not required to introduce gun itself to prove possession). As noted by this Court in Commonwealth v. Hammond, 350 Pa.Superior Ct. 477, 504 A.2d 940 (1986), the rationale for allowing such inferences is the ease with which the most objective proof — the weapon itself — may be discarded. Id., 350 Pa.Superior Ct. at 482, 504 A.2d at 942.

We see no reason why the reasoning in Layton and its progeny should not apply here. Indeed, the same exigency that justified the use of indirect proof of operability in cases involving possession of a firearm — the disposability of the weapon — also obtains in cases involving proof of possession for purposes of applying the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9712. We therefore adopt the reasoning employed in Layton and hold that, to find that a weapon is operable and hence a “firearm” under § 9712(e), the factfinder need not be presented with direct proof of operability — i.e., introduction of the weapon itself, evidence that it was fired, or evidence that a witness observed its operating mechanism — but can infer operability from circumstantial evidence.

A review of the sentencing hearing convinces us that the Commonwealth introduced sufficient evidence under § 9712 to prove by a preponderance of the evidence that the weapon appellant possessed in both incidents was a “firearm.” On Information number 2311-84, the Commonwealth presented the testimony of the two victims, Peter Rawlik and Helen Spears. Spears testified that appellant

came into my tavern, sat at the bar, had a glass of beer, pulled out a gun and put it on the bar, covered it with his hand and told the bartender to call me, which he did. When I came there, [appellant] pointed the gun at me and told me to get into the men’s room, and if I didn’t get in, I was dead.

N.T. June 24, 1985 at 6. Spears also testified that the gun “looked like the police officer’s gun,” that the barrel was silver, and that it was six or seven inches long. Id. at 7-8. Rawlik testified that he was present when appellant entered the bar, and that appellant pulled a gun and pointed it at his midsection. Id. at 9-11.

On Information number 2132-84, the Commonwealth also presented the testimony of the victims. Both Sam and Geraldine Nucho testified that appellant came to the back door of their home, pulled out a gun, put it into Geraldine Nucho’s stomach, and ordered the couple to get back into their home. Id. at 18, 24-25. In addition, Sam Nucho described the gun as a “.45 automatic,” id. at 19, which was similar to the one he was issued when he was in the military. Id. at 22. Nucho further testified

that the gun was a heavy object. It was a heavy metal gun. It was not a toy. It was not a plastic gun. It was a heavy gun, and he struck me on the head with it and it caused my head to bleed profusely, and I sat there---He stayed there for one half hour and I looked at that gun for a half an hour.

Id. at 20.

Thus, in both cases, the Commonwealth presented the testimony of victims, who stated that the weapon appellant possessed either “looked like,” “felt like,” “sounded like,” or “was like” a firearm. See Commonwealth v. Layton, supra. On these facts, we cannot conclude thát the lower court erred in finding that appellant possessed an “operable” weapon, or firearm, and thus was subject to the mandatory sentencing provisions contained in § 9712.

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

Affirmed.

      . Information number 2132-84 charged appellant with two counts of robbery, and single counts of burglary, criminal conspiracy, and possession of a firearm without a license. Information number 2311-84 charged appellant with two counts of robbery and single counts of burglary and criminal conspiracy.

      . Section 9712 provides, in relevant part:
      (a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of ... robbery ... shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement.

        Id. § 9712(a).

      . Layton involved the old Uniform Firearms Act, the Act of June 24, 1939, P.L. 872, § 628, as amended 18 Pa.Stat. 4628. Under the Pennsylvania Consolidated Statutes, the Uniform Firearms Act is now codified at 18 Pa.C.S.A. §§ 6101-6120. The pertinent language of the Act, including what is now § 6105, is unchanged. To avoid confusion, this Opinion utilizes the current Pennsylvania Consolidated Statutes citations.

      . Appellant also contends that the sentencing court (1) abused its discretion in imposing consecutive sentences rather than concurrent sentences; and (2) failed to state on the record adequate reasons for the sentence imposed. After carefully reviewing the record and the parties’ briefs, we conclude that the lower court has correctly disposed of these contentions in its opinion.


author: OLSZEWSKI, Judge:

text:
    523 A.2d 771
    Ronald E. PARK and Aileen J. Park, His Wife, Appellees, v. GREATER DELAWARE VALLEY SAVINGS & LOAN ASSOCIATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1986.
    Filed March 30, 1987.

      Robert J. Hoelscher, Philadelphia, for appellant.
    William R. Hagner, Paoli, for appellees.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order granting appellant, Greater Delaware Valley Savings and Loan Association (GDV), restitution in the amount of $1,590.00 plus partial pre-verdict interest at the rate of 5V2% simple interest. The $1,590.00 award constitutes the sum of tax and insurance payments made by GDV’s predecessor-in-interest, Lansdowne Federal Savings and Loan Association (Lansdowne), which appellees, the Parks, failed to tender to GDV.

Appellant raises two issues on appeal: (1) whether the trial court’s findings were at variance with the facts stipulated by the parties; and (2) whether the trial court erred in concluding that pre-verdict interest commences at the time demand is made by the mortgagee (GDV), where the mortgagee recovers pre-verdict interest on the mortgagors’ (the Parks) debt resulting from the miscalculations of the mortgagee’s predecessor-in-interest (Lansdowne).

We adopt the trial court’s accurate statement of the stipulated facts:

In February of 1963, plaintiffs entered into a home mortgage agreement with Lansdowne Federal Savings and Loan Association (“Lansdowne”). The mortgage was security for a loan of $16,000 to be repaid with interest at the rate of 5V2% per annum over 25 years.
With each monthly installment of principal and interest, the Parks also paid a portion of the annual taxes and insurance on the property, which Lansdowne paid on behalf of the Parks pursuant to the following clause of the mortgage agreement: “(T)he Mortgagor shall pay monthly to the Mortgagee one-twelfth (¥12) of said charges (if same are not certain as to amount, said amount to be reasonably estimated by Mortgagee): and failure by Mortgagor to pay each month as provided in this paragraph shall be a default hereunder.”
During the first thirteen years of this arrangement, Lansdowne underestimated the taxes and insurance which were due in a particular year. As a result, between 1963 and 1975 Lansdowne paid out more for taxes and insurance on the Parks’s property than it collected from the plaintiffs. However, the plaintiffs at all times made all requested payments to Lansdowne.
When Lansdowne received payments for taxes and insurance from the Parks’, the bank applied the sums to reduce the mortgage principal. Conversely, when Lansdowne made payments for taxes and insurance, the payments were added to the unpaid mortgage balance. The “capitalization” method of accounting was reflected in the plaintiffs’ mortgage passbook.
In 1975 Lansdowne merged with defendant, Greater Delaware Valley Savings and Loan Association (“GDV”). The surviving entity changed to the “escrow” method of accounting for the tax and insurance payments on the plaintiffs’ property. Under GDV’s system of accounting, all tax and insurance payments were credited to a separate account, leaving the mortgage principal unaffected.
It was not until October 31, 1979 that GDV informed the plaintiffs that the principal balance of their loan was not being reduced according to schedule. On that date, GDV by letter advised the Parks’ that as a result of Lansdowne’s errors, the loan balance was $10,973.86, rather than the $7,756.64 which it should have been under the terms of the mortgage agreement. The $3,217.22 difference was the total of the excess taxes and insurance paid by Lansdowne (Lansdowne paid a total of $1,590.00 more in taxes and insurance than it had collected from the Parks), plus interest at the rate of hk% dating from February, 1963 ($1,627.22 in interest). In November, 1979, the Parks’, under protest, began to pay an additional $39.88 each month to GDV to make up the deficiency.
The Parks’ initially sought a declaratory judgment stating that they did not owe GDV either the tax and insurance undercharges or any interest thereon. GDV counterclaimed for all excess taxes and insurance payments made by Lansdowne, plus interest. At argument, counsel for the plaintiffs conceded that GDV was entitled to reimbursement for the tax and insurance undercharges. However, counsel protested paying any interest on the sum which accrued during the period prior to October 31, 1979, the date of GDV’s notice to the plaintiffs.

(Trial court opinion at 2-4).

The trial court found in GDV’s favor and awarded GDV $1,590.00 for the taxes and insurance premiums that the Parks had not paid to Lansdowne from February 1963 to October 1984. The trial court also awarded partial pre-verdict interest at the rate of 5V2% from November 1, 1979 (when GDV made demand on the Parks for payment) to October 1, 1984 (the date of the trial court’s order), with credit given for each monthly payment of $39.88 made by the Parks to GDV. GDV, however, was dissatisfied with the court’s findings concerning the interest due on the award entered in its favor. GDV, consequently, filed a motion for post-trial relief, seeking an award of interest on the tax and insurance payments retroactive to February 1963 (the period when Lansdowne began advancing more for taxes and insurance on the Parks’ property than Lansdowne collected from the Parks). The trial court denied GDV’s motion and this timely appeal followed.

Appellant’s first contention is that the trial court’s finding, that GDV “added to the mortgage principal the amount of the undercharges as well as interest,” was contrary to the parties’ stipulated facts. (See trial court adjudication at 8). We recognize that stipulated facts are binding upon the court as well as the parties. See Commonwealth v. Carheart Corp., 450 Pa. 192, 299 A.2d 628 (1973); George v. Commonwealth, Department of Transportation, 70 Pa.Commw. 574, 453 A.2d 717 (1982). Appellant additionally argues that the trial court’s own specific findings of fact, based on the parties’ stipulations, do not support the trial court’s finding which is at issue on this appeal.

GDV argues that “when the notion of a hidden added charge is removed from the balance, the only significant charge of wrongdoing against GDV is gone.” (Brief for appellant at 13) (emphasis added). Thus, it appears that appellant is interpreting the trial court’s use of the term “undercharges” to refer to some “hidden added charge.” We find that this contention is without merit.

When the trial court stated that GDV “added to the mortgage principal the amount of the undercharges as well as interest,” the trial court properly was referring to the amount of money the Parks were undercharged for taxes and insurance from February 1963 to October 1, 1984. The underpaid taxes and insurance plus interest were not viewed by the trial court as a “hidden added charge” by GDV. After reviewing the trial court adjudication, we find that the trial court’s statement that, GDV “added to the mortgage principal the amount of the undercharges as well as interest,” was not at variance with the facts stipulated by the parties nor was it contrary to the trial court’s own specific findings of fact.

The second issue raised in this case is one of first impression in this Commonwealth: when does pre-verdict interest commence where the mortgagee recovers pre-verdict interest on the mortgagor’s debt which is the result of the miscalculations of the mortgagee’s predecessor-in-interest. We must determine whether pre-verdict interest commences at the time the mortgagee makes demand on the mortgagor for payment or when the mortgagee’s predecessor-in-interest began advancing the money on behalf of the mortgagor.

We recognize that our scope of review of a final decree in equity is limited. See Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980), decided after remand, 495 Pa. 100, 432 A.2d 971 (1981). The decision whether to award pre-verdict interest and the amount of such interest is vested in the discretion of the trial court sitting in equity and should not be disturbed absent an abuse of discretion. See Sack supra. We agree with the trial court that in determining when interest begins to run on a restitution obligation owed by the mortgagor to the mortgagee, we are guided by our Supreme Court’s decision in Murray Hill Estates, Inc. v. Bastin:

An examination of the cases dealing with the charge and allowance of interest will disclose many difficulties, but the decided trend of courts of law and courts of equity has been “to break away from hard and fast rules and charge and allow interest in accordance with principles of equity, in order to accomplish justice in each particular case” ... Unless a case be found, which is a conclusive precedent, the safest and at the same time the fairest way for a court is to decide questions pertaining to interest according to a plain and simple consideration of justice and fair dealing.

442 Pa. 405, 410, 276 A.2d 542, 545 (1971) (quoting McDermott v. McDermott, 130 Pa.Super. 127, 130, 196 A. 889, 890 (1938)). Since there is no conclusive precedent concerning the issue raised in this case, we must decide when pre-verdict interest commences based on considerations of “justice and fair dealing.”

We find that the trial court did not abuse its discretion in balancing the equities when it concluded that the just and fairest resolution of this matter required an award of partial pre-verdict interest to GDV from the date that GDV gave notice to the Parks. In his comprehensive opinion, the Honorable Robert S. Gawthrop, III aptly considered the relevant facts:

The plaintiffs (Parks) cannot be characterized as wrongdoers, either before or after the defendant’s (GDV) October 31st demand letter. The plaintiffs made all requested payments in a timely manner during the first sixteen years of the mortgage, and nothing suggests that they would have refused to pay the necessary increments if requested. Noteworthy too is the Parks’ payment, under protest, of the defendant’s additional monthly charge of $39.88 to cover the deficiency principal and interest thereon, which this court also considered indicative of the plaintiffs’ good faith. Furthermore, there is no evidence that the Parks’ were aware prior to the defendant’s October 31st notice letter, that the taxes and insurance had been underpaid. Thus, the plaintiffs did not act willfully to deprive Lansdowne or GDV of any funds; instead, they justifiably relied, as they were entitled to do, on the mortgagee’s “reasonable estimation” of the charges due. Nothing in the mortgage agreement suggests that the plaintiffs were charged with the responsibility for determining whether the information and requests for payment which they received from the mortgagee were accurate and complete. It follows, therefore, that plaintiffs should not be penalized by awarding the defendant over $1,600.00 in interest simply because Lansdowne mismanaged the plaintiffs’ account.
In balancing the equities, the relative degree of fault allocable to each party is also a factor for the court’s consideration. Wade v. S.J. Groves & Sons Co., 283 Pa.Super. 464, 424 A.2d 902 (1981). Hence, this court found significant the fact that the defendant waited four years after its merger with Lansdowne before notifying the Parks of the undercharges and their accumulated interest. In essence, GDV sat on the debt owed by the Parks, permitting the interest thereon to mount, and then added the surcharges thus generated to the debt while the plaintiffs, in good faith, believed the mortgage principal was dwindling according to plan. Under the defendant’s reasoning, a mortgagee could conceivably undercharge a mortgagor during the initial years of a long-term mortgage, allow the interest on the debt to mount, and then let the avalanche of surcharges hit the mortgagor in the last months of the mortgage. Even without imputing bad faith to either GDV or its predecessor, this court of equity cannot countenance the result that this rationale entails.

(Trial court opinion at 6-8) (footnote in original).

In addition, we are not persuaded by GDV’s arguments that Lansdowne, not GDV, underestimated the amount of taxes and insurance from 1963 (when the mortgage agreement was executed) to 1975 (when Lansdowne merged with GDV) and that these undercharges impose a hardship on GDV. {See Brief for appellant at 18-19). When Lansdowne merged with GDV in 1975, GDV became the mortgagee under the mortgage agreement involved in the instant case. When corporations merge, the surviving corporation succeeds to both the rights and obligations of the constituent corporations. See Dawejko v. Jorgensen Steel Co., 290 Pa.Super. 15, 434 A.2d 106 (1981); 15 Pa.S.A. Sec. 803 (Purdon’s 1967). In the case sub judice, GDV, as the surviving corporation, succeeded to the rights and obligations of Lansdowne, the constituent corporation. Consequently, GDV bears the responsibility for Lansdowne’s errors in underestimating the amount of taxes and insurance that had to be paid on the Park’s property.

We acknowledge, as the trial court did, that the Parks “are receiving something of a windfall in that they in effect have been permitted the use of certain sums of money (the money they did not pay in taxes and insurance) for free.” (Trial court opinion at 8). Nonetheless, the evidence in this case suggests that the Parks would have paid the necessary increase in the amount of taxes and insurance if Lansdowne had made such a request. In fact, Lansdowne increased the tax and insurance premiums on three occasions and the Parks readily made payments in the increased amount. These increases, however, were insufficient to overcome the deficiency. We find no reason to require the Parks to pay interest for the period before they were notified of the mistakes made by Lansdowne.

We find that the trial court did not abuse its discretion in concluding that considerations of justice and fair dealing were served by the trial court’s order which entitled GDV to pre-verdict interest only from the time demand for payment was made (the date of GDV’s notice to the Parks). Accordingly, we hold that under the facts of the instant case, pre-verdict interest commenced at the time demand was made by the mortgagee who had previously recovered preverdict interest on the mortgagors’ debt due to the miscalculations of the mortgagee’s predecessor-in-interest.

Order of trial court affirmed. Pre-verdict interest to be paid on the unpaid balance of taxes and insurance ($1,590.00) from the date of GDV’s notice to the Parks (November 1, 1979) to the date of the trial court’s order (October 1, 1984) at the rate of 572% simple interest with credit given for each monthly payment of $39.88 made by the Parks to GDV.

      . Appellant argues that the following findings of fact by the trial court are contrary to the trial court’s statement that GDV “added to the mortgage principal the amount of the undercharge as well as interest.” (See trial court adjudication at 8):
      6. The Parks submitted a passbook for the mortgage to Lansdowne whenever they made payment. Lansdowne then made entries, including charges for actual amounts disbursed for taxes and insurance, and returned the passbook to the Parks.
      Trial court adjudication at 3. See Stipulation of facts at 3-4.
      7. ... All disbursements by Lansdowne for taxes and insurance were added to the unpaid balance. These payments and disbursements are reflected in the Parks’ mortgage passbook.
      Trial court adjudication at 3. See Stipulation of facts at 3.
      9. ... The Parks were notified of this change by GDV in a letter dated February 18, 1976, and received annual mortgage statements from GDV thereafter. Under the escrow method, advance payments for taxes by the mortgagor, and payments of taxes by the mortgagee, do not affect the principal balance of the loan.
      Trial court adjudication at 4. See Stipulation of facts at 4-5.

      . The trial court explained:
      The Adjudication was founded on the principles of equity and not on the basis of GDV’s accounting practices. Whether the defendant "added” the deficiency and interest into a separate debit or escrow account was immaterial to this court’s ultimate conclusion that GDV was not entitled to the full amount of its counterclaim.
      Trial court opinion at 9.

      . The trial court found that GDV was entitled to restitution for the tax and insurance undercharges. The trial court aptly stated:
      GDV’s predecessor in interest, Lansdowne, paid all taxes and insurance on the property until it merged with GDV. It is a fundamental legal principal (sic) that one who has been unjustly enriched at the expense of another must make restitution to the other. Sack v. Feinman, 495 Pa. 100, 106, 432 A.2d 971, 974 (1981); Binns v. First Nat'l. Bank, 367 Pa. 359, 372, 80 A.[2d] 768, 776 (1951); Restatement of Restitution Sec. 1 (1937). Here, Lansdowne paid the tax and insurance debts of the Parks and is entitled to restitution for those sums, for which it has not been reimbursed by the Parks under either a theory of restitution or the mortgage instrument itself, which required the Parks to pay all charges for taxes and insurance to the mortgagee.
      Trial court adjudication at 8.
      The trial court, after balancing the equities, also properly found that GDV was entitled to pre-verdict interest. Pre-verdict interest is granted "in order to prevent unjust enrichment or where the payment of interest is required to avoid injustice." Sack, 489 Pa. at 165, 413 A.2d 1065. Consequently, on appeal, we only must determine when preverdict interest should commence in this case.

      . An abuse of discretion occurs when "the record discloses that the judgment exercised was manifestly unreasonably or the result of partiality, prejudice, bias, or ill-will." M. London, Inc. v. Fedders Corp., 306 Pa.Super. 103, 107, 452 A.2d 236, 237 (1982).

       Indeed, Lansdowne did on three occasions increase the tax and insurance pre-payment charges, which were duly paid by the Parks. However, these increases were insufficient to make up the deficiency at issue here.

      . GDV requested an award of interest of 5!/2%, the rate of the mortgage agreement.


author: BROSKY, Judge:

text:
    523 A.2d 776
    ESTATE OF Carl GRITZAN, Alias Dictus, Carl Gritzan, Jr., An Alleged Incompetent. Appeal of Dorothy A. (Gritzan) McCREERY, Daughter and Heir of Carl Gritzan, Alias Dictus, Carl Gritzan, Jr., Deceased.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1987.
    Filed March 27, 1987.

      Brian S. Fenton, Latrobe, for appellant.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   BROSKY, Judge:

This is an appeal from the August 1, 1986 Order of the trial court dismissing appellant’s exceptions to the decree of May 6, 1986 and entering a Final Decree.

Appellant raises five issues for our consideration: (1) whether the trial court erred in entering an Order of Court finding that Carl Gritzan was incompetent on or before March 24, 1984; (2) whether the trial court erred in its conclusion that it was proper for the Guardian, Pittsburgh National Bank (PNB), to redeem certain Government bonds after the death of Carl Gritzan; (3) whether the trial court erred in its conclusion that it is proper for PNB to retain the proceeds of the redeemed Government bonds when the joint owner and survivor (appellant), requested that those proceeds be paid over to her directly; (4) whether the trial court erred in its conclusion that it was proper for the Guardian, PNB, to retain, in its possession, the unredeemed Government bonds when the co-owner and survivor, Dorothy A. Gritzan McCreery, has requested the return of those bonds; (5) whether the trial court erred in its conclusion that it was proper for the Guardian, Sandra Gritzan Mag-nus, to retain the amount of $4,296.69 in her possession which was part of the estate of Carl Gritzan. The trial court responded to the above issues in the negative and, while we agree with regard to issues (1) and (5), we reverse on issues (2), (3) and (4).

This appeal arises from an Orphan’s Court proceeding for the Appointment of a Temporary Guardian of Carl Gritzan, filed by one of his daughters, Sandra Gritzan Magnus, on April 30, 1984. Sandra Gritzan Magnus was, at that time, appointed temporary guardian of the estate of Carl Gritzan. Carl Gritzan’s other daughter, Dorothy A. (Gritzan) McCreery, (appellant), filed an answer to the above Petition on July 10, 1984. On July 27, 1984, a Consent Order was entered into by the two sisters which terminated Sandra as temporary guardian and appointed William S. Ferraro, Esquire and Joseph P. Covelli, Esquire, as guardians. This Order also indicated that both Sandra and Dorothy were to deliver all property they had in their possession, owned individually or jointly by Carl Gritzan, to the guardians. This property included, inter alia, 326 Series E U.S. Savings Bonds, jointly titled in the names of “Carl Gritzan or Dorothy Gritzan McCreery”, (this is the only permissible manner in which to entitle such bonds under 31 C.F.R. § 315.7) and proceeds of two Certificates of Deposit.

By Order dated September 26, 1984, PNB was appointed successor guardian of the estate of Carl Gritzan and William S. Ferraro and Joseph P. Covelli, guardians, dispersed to PNB 326 Series E U.S. Savings Bonds, in kind, along with all other property they had received as guardians.

Carl Gritzan died on November 17, 1984. PNB endorsed a number of Series E U.S. Savings Bonds and sent them to the Federal Reserve to be redeemed. On or about December 20,1984 PNB filed its first and final account. Joseph P. Covelli and William S. Ferraro filed their first and final account on April 4, 1985. On or about August 26, 1985, Sandra Gritzan Magnus filed her first and final account.

Appellant filed exceptions to all accounts. A hearing was held and testimony taken from all guardians. A final decree and Opinion were rendered on August 1, 1986.

Beginning with appellant’s first contention, we find it to be wholly without merit. The trial court, relied upon the testimony of a physician hired by appellant, who stated that Carl Gritzan was not competent on March 29, 1984 when he executed a Deed and a Will. Thus, the trial court found Carl Gritzan to have been incompetent “... on or before March 29, 1984.” Further, appellant fails to claim to have suffered any harm by this finding and we cannot see where it has any bearing on the case before us.

Appellant next contends that PNB had no right to redeem the Series E U.S. Savings Bonds after the death of Carl Gritzan. Appellant claims that PNB redeemed the bonds after Carl Gritzan died. However, PNB avers that the redemption began on November 13, 1984 and were eventually receipted by the Federal Reserve Board on November 27, 1984. Thus, according to PNB, they were only doing what they had authority to do because they began the redemption process during Gritzan’s lifetime. Although 13 Pa.C.S.A. § 4405 allows a bank to process orders made by a decedent for up to ten days after actual notice of decedent’s death, ownership and redemption of Series E U.S. Savings Bonds are controlled by federal law not by state law. See 31 C.F.R. § 316.3. 31 C.F.R. § 315.20(a) states that “the Department of the treasury will not recognize a judicial determination that gives effect to an attempted voluntary transfer inter vivos of a bond, or a judicial determination that impairs the rights of survivorship conferred by these regulations upon a co-owner or beneficiary.” Also, 31 C.F.R. § 315.70(b) states that upon the death of one co-owner, the surviving co-owner becomes the sole and absolute owner of the bond. In the instant case the bonds were issued and titled in accordance with Federal regulations and, therefore, presently belong to appellant.

Additionally, we do not find persuasive the agreement set forth by the trial court as evidence of appellant’s intent to relinquish ownership of the Bonds. The agreement reads as follows:

Dorothy A. McCreery and Sandra Gritzan Magnus shall forthwith deliver and transfer to the above named guardians of the estate of Carl Gritzan, alias dictus Carl Gritzan, Jr., any and all sums, accounts, coins, stamps, collectables [sic], bonds, certificates, property, both real and personal, whether owned individually by the said Carl Gritzan, alias dictus Carl Gritzan, Jr. or owned jointly with either or both of the said daughters, including but not limited to the following: (1) U.S. Savings Bond (2) Certificates of Deposit (3) Checking and Savings Accounts (4) Government and Pension Checks (5) Coin and Stamp Collections (6) Contents of House located at R.D. # 2, Box 770, Leechburg, Pennsylvania, (emphasis added). (Order of Court, Paragraph 4).

We interpret the “deliver and transfer ...” language to refer to possession, not ownership. See, Providence Trust Company of Philadelphia, 346 Pa. 37, 29 A.2d 524 (1943). Therefore, we reverse the decision of the trial court and order PNB to return to appellant the unredeemed Series E bonds along with the proceeds of those Bonds which were redeemed.

The third and fourth issue raised by appellant are also covered by the preceding rationale and holding, thus we see no necessity for its repetition.

Turning now to appellant’s fifth contention, we are, once again, in agreement with the trial court. The record indicates that each daughter of the decedent turned over $10,000.00 while retaining approximately $4,000.00. Appellant never rebutted this testimony given by Sandra Gritzan Magnus. Applying the rules of equity, we are faced with the “clean hands” rule whereby “he who seeks equity must do equity.” In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984). Being bound by Sandra’s testimony absent any contradiction of it, Kelly v. Oxgrove Development Corp., 465 Pa. 306, 319 A.2d 424 (1974), we find that appellant is challenging an action which she herself is guilty of doing. Therefore, we cannot afford her relief in this instance.

Accordingly, we affirm the decision of the trial court with regard to issues (1) and (5), but we reverse with regard to issues (2), (3) and (4).

Order affirmed in part, and reversed in part. Jurisdiction relinquished.