author: JOHNSON, Judge.

text:
    566 A.2d 591
    NORTHAMPTON COUNTY AREA COMMUNITY COLLEGE and Northampton County Area Community College Authority v. DOW CHEMICAL, U.S.A., Masonry Systems of Pennsylvania, Inc., a/k/a Gramar, Inc., Wallace and Watson Associates, Successor in Interest to Coston Wallace Watson, James T. Hartnett Construction Co., Inc., and Clarence B. Haney Mason Contractor, Inc., and Truett Coston, William Wallace and William Watson, Individually and t/a Coston, Wallace and Watson. Appeal of WALLACE AND WATSON ASSOCIATES, Successor in Interest to Coston, Wallace, Watson, James T. Hartnett Construction Company, Inc.: Truett Coston, William Wallace and William Watson, Individually and t/a Coston, Wallace and Watson, Appellants. NORTHAMPTON COUNTY AREA COMMUNITY COLLEGE and Northampton County Area Community College Authority, Appellants, v. DOW CHEMICAL, U.S.A., Masonry Systems of Pennsylvania, Inc., a/k/a Gramar, Inc., Wallace and Watson Associates, Successor in Interest to Coston Wallace Watson, James T. Hartnett Construction Co., Inc., and Clarence B. Haney Mason Contractor, Inc. and Truett Coston, William Wallace and William Watson, Individually and t/a Coston, Wallace and Watson.
    Superior Court of Pennsylvania.
    Argued May 23, 1989.
    Filed Oct. 2, 1989.
    Reargument Denied Dec. 7, 1989.

      Susanne Longenhagen, Philadelphia, for appellants (at 3006PHL88) and appellees (at 316PHL89).

      Shawn Kenny, Harrisburg, for Hartnett Const., appellant (at 3006PHL88) and appellee (at 316PHL89).
    Mark A. Welge, Philadelphia, for Dow Chemical, appellee at (3006PHL88 and 316PHL89).
    Paul Logan, King of Prussia, for Northampton, appellants (at 316PHL89).
    Before BECK, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge.

Northampton Area Community College (the College) appeals from the trial court’s grant of appellee Dow Chemical U.S.A. (Dow)’s motion for summary judgment. We are asked to decide whether a plaintiff community college may defeat a defense of the statute of limitations by asserting the doctrine of nullum tempus occurrit regi (literally, “time does not run against the King.” Black’s Law Dictionary (4th ed. rev. 1968 at 1217)). Because the legislature has conclusively defined Commonwealth parties for the purpose of asserting governmental privileges, and because we conclude that the Community Colleges are not covered by this definition, we hold that a community college may not assert the privilege of nullum tempus. Hence, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The College, located in Northampton County, Pennsylvania, was created pursuant to an enabling statute, The Community College Act of 1963, 24 P.S. § 5201, et seq., which has since been repealed and replaced by 24 P.S. § 19-1901-A et seq. The Northampton Area Community College Authority (Authority) is a body created under another enabling act, the Municipality Authorities Act, 53 P.S. § 301 et seq. The College contracted with James T. Hart-nett Construction Co., Inc. for construction of an Engineering and Business Technologies Center (the building). Prefabricated masonry panels containing Sarabond, a mortar bonding agent manufactured by Dow, were used in the construction. These panels were manufactured by Masonry Systems of Pennsylvania, Inc. using Sarabond purchased from Dow. The panels were then sold to the general contractor. The architect issued a certificate of substantial completion for the building in 1973.

On January 12, 1979, Dow sent a letter to Leon Reichwein, the College’s Vice President For Administrative Services, advising that the building may have been constructed with masonry panels containing Sarabond, and which could cause corrosion problems if Sarabond came into contact with unprotected steel “under certain conditions which may or may not exist in your building____” The letter suggested that the College have an inspection of the masonry construction performed by a qualified person and requested that Dow be permitted to be present during the inspection.

Leon Reichwein distributed the letter to each of the members of the College’s board of trustees, the College’s Superintendent of Buildings and Grounds and the College’s President. He also informed the Authority’s Board of Directors. Shortly after receipt of the letter the Superintendent of Buildings and Grounds visually inspected the building from the outside and noticed cracks. The architect as well as the College’s counsel recommended that an independent party conduct a thorough inspection. The architect also apprised the College that Dow was a defendant in a lawsuit alleging masonry cracking due to Sarabond. The College negotiated with an independent architect for an inspection, but this proposed inspection never took place. Finally, in May of 1980, the College had Dow perform an inspection. Dow issued a report in July of 1981 concluding that the building was basically sound and that cracks in the masonry seemed to be caused by freeze-thaw conditions. In November of 1983 a Sarabond expert who reviewed Dow’s report suggested that the masonry cracking in the building was most likely Sarabond related. On July 2, 1984 the College and the Authority commenced an action against Dow and the other defendants by writ of summons alleging “in excess of $1,000,000.00” in damages. While the College brought the same allegations against the architects and the contractors, this appeal involves only the counts brought against Dow. The co-defendants had filed a notice of appeal which was subsequently withdrawn following Dow’s reinstatement as a third-party defendant.

The College’s first Complaint, filed on October 16, 1984, alleged that Dow breached express and implied warranties, that Dow was strictly liable for the damage to the building under § 402 A, Restatement of Torts (2d), and that Dow failed to warn of possible damage from Sarabond. Following discovery and with leave of court, the College filed an amended complaint on February 11, 1986 adding the allegations that Dow, knowing that Sarabond caused corrosion, fraudulently hid or misrepresented its knowledge and later intentionally falsified the inspection report.

On November 9, 1987 Dow filed a Motion for Summary Judgment alleging that the College had no standing to bring a breach of warranty action, that the statute of limitations barred the tort claims, and that the College had no cause of action in fraud because the College had the opportunity to discover the defects on their own and were thus not dependent upon any of Dow’s representations. On January 5, 1988, following additional discovery, the College replied, asserting that privity was not required for a recovery for breach of contract, that, based upon the discovery rule, its causes of action were all filed within the applicable statutes of limitation, and that because Dow actively concealed Sarabond’s harmful qualities, Dow was estopped from asserting any statute of limitations defense. Additionally, the College argued that it was a Commonwealth agency and thus any statute of limitations defense against it must fail under the doctrine of nullum tempus occurrit regi. The court granted Dow’s motion by Order and Opinion of July 21, 1988. By order of August 25, 1988 the trial court reinstated Dow as a party solely with regard to the existing cross-claims by the co-defendants.

The College then appealed to the Commonwealth Court. On December 8, 1988 the Commonwealth Court determined that it had jurisdiction over neither the College nor the College Authority because neither entity was part of the Commonwealth government. The court transferred rather than dismissed the case because the underlying issues, “the threshold affirmative defense question of the statute of limitations, together with the related nullum tempus issue,” are issues that regulate the affairs of all litigants. Hence this appeal.

On appeal the College argues that the statutes of limitation did not run against their various claims and that, even if they had run, they could not be asserted against the College under the doctrine of nullum tempus. We will first address the nullum tempus issue.

NULLUM TEMPUS

Nullum tempus, which the sovereign asserts as plaintiff, must be viewed together with sovereign immunity, its coordinate doctrine, which the sovereign asserts when it is a defendant. In our system of government, unlike the monarchies under which they originated, these traditional privileges depend upon the legislature for their delineation and implementation. A sovereign asserts sovereign immunity as a defense to avoid the consequences of law under the traditional convention that the King can do no wrong. Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). The Pennsylvania Constitution gives the legislature the power to apply or, implicitly, to waive the privilege:

Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.

Const, art. I, § 11. Although the doctrine was abolished in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973) and again in Mayle v. Pennsylvania Department of Highways, supra on the rationale that modern all-pervasive government should be held responsible for its tortious conduct, the legislature re-established sovereign immunity by enacting the following statutory provision:

Sovereign immunity reaffirmed; specific waiver
Pursuant to section 11 of Article I of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity.

1 Pa.C.S. § 2310. Act of September 28, 1978, P.L. 788, No. 152, § 1. Having said that, the legislature specifically waived the sovereign immunity of the Commonwealth and allowed liability to be imposed within specific tort contexts set forth in 42 Pa.C.S. § 8522. Act of October 5, 1980, P.L. 693, No. 142, § 221.

When the Commonwealth, as a plaintiff, brings an action for which the statute of limitations has run, it may invoke nullum tempus. Under nullum tempus, statutes of limitation do not apply to the plaintiff Commonwealth unless the statute specifically provides that it does. Commonwealth, Department of Transportation v. J.W. Bishop & Co., 497 Pa. 58, 439 A.2d 101 (1981). The rationale is that, in its role of plaintiff, the state seeks:

[T]o vindicate public rights and protect public property. Thus, since its adoption in this country, the rationale for the doctrine of nullum tempus has been “the great public policy of preserving public rights, revenues and property from injury and loss.” United States v. Hoar, 26 Fed.Cas. 329, 330 (C.C.D.Mass. 1821) ... (Story, J.)____ Moreover, the benefits and advantages of the doctrine of nullum tempus extend “to every citizen, including the defendant whose plea of ... limitations it precludes.” Guaranty Trust Co. of New York v. United States, 304 U.S. [126] at 132, 58 S.Ct. [785] at 789 [82 L.Ed. 1224 (1938) ].

Bishop, 497 Pa. at 64, 439 A.2d at 104. In Bishop, the court was asked whether nullum tempus was still viable in light of the judicial abrogation of sovereign immunity (prior to the legislative reinstatement). The court noted the distinction in the doctrines’ rationales and concluded that it found no reason to extinguish the rule that a statute of limitation will not apply to the sovereign unless the words of the statute expressly state that the statute applies to the sovereign. Thus, the legislative power to waive nullum tempus was affirmed as well.

COMMONWEALTH PARTY STATUS

Because authority discussing nullum tempus is scarce, both the College and Dow address whether the College may assert nullum tempus by analogizing to cases that address sovereign immunity. The College emphasizes the differences between the doctrines, while Dow emphasizes the doctrines’ common roots. Both are correct to suggest a functional relationship, but both fail to recognize the dispositive factor, what the doctrines have in common: the same class of parties may invoke each. The legislature has clearly set forth the entities that comprise this class. Therefore, when the question is whether an entity is a Commonwealth party, a determination should and can be made solely with reference to the legislative intent as expressed in the statutes; no judicial test is required. That the rationales supporting the two doctrines differ has no bearing on the legislature’s ultimate and exclusive power to grant or to waive each privilege. We conclude that to adopt the position that one doctrine may apply to a party while the other may not contravenes the plain intent of the legislature.

Generally, the issue of whether a statute of limitations will preclude a claim is properly addressed by a motion for summary judgment, and specifically, whether the doctrine of nullum tempus applies to negate a statute of limitations defense is a question of law that is properly decided on a motion for summary judgment. See General State Authority v. Lawrie and Green and John McShain, Inc., 64 Pa.Commw. 102, 439 A.2d 228 (1982).

The trial court found that the College and Authority were not Commonwealth parties and thus could not invoke nullum tempus. We agree, but we reach this conclusion by a different route. The trial court applied a traditional test for whether a governmental entity can claim governmental immunity, whether the controversy arose by virtue of a governmental or by virtue of a proprietary action by the entity. The court concluded that contracting for the college building was a proprietary and not a governmental function and therefore the College was not a Commonwealth party. The trial court then reached the underlying issues, found that the applicable statutes of limitation had expired for all the claims and granted Dow’s motion for summary judgment. We agree with the trial court that all the applicable statutes of limitation had run. However, we conclude that statute and caselaw in this Commonwealth have rejected a “governmental vs. proprietary function” test and, most significantly, such tests have been rendered obsolete by the recent legislative definitions and classifications of Commonwealth parties.

The legislature’s classification of Commonwealth parties is unambiguous. We must construe the statute according to its plain meaning and interpret it to give effect to legislative intent. Commonwealth v. Edwards, 384 Pa.Super. 454, 559 A.2d 63 (1989). Under 42 Pa.C.S. § 8522(a), the legislature waived sovereign immunity for “Commonwealth parties” with respect to certain enumerated actions. The legislature defines a Commonwealth party as:

[A] Commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment.

42 Pa.C.S. § 8501. Under 42 Pa.C.S. § 102, the definition section of the Judicial Code, a Commonwealth agency is “any executive or independent agency.” An executive agency is “[t]he Governor and the departments, boards, commissions, authorities and other officers and agencies of the Commonwealth government.” An independent agency is defined as “boards, commissions, authorities and other agencies and officers of the Commonwealth government which are not subject to the policy supervision and control of the Governor ...” 42 Pa.C.S. § 102; see Hall v. Acme Markets, Inc., 110 Pa.Commw. 199, 532 A.2d 894 (1987). All authorities and agencies coming under one of these categories are now amenable to suit in a tort action enumerated in § 8522. See Gallagher v. Bureau of Correction, 118 Pa.Commw. 516, 545 A.2d 981 (1988); alloc. denied 520 Pa. 620, 554 A.2d 511.

Therefore, we conclude that the Community Colleges cannot be construed as being Commonwealth parties under any of these definitions because the legislature did not create them but merely authorized their creation by means of an enabling statute, 24 P.S. §§ 19-1901 et seq. An examination of the enabling act further demonstrates the accuracy of this interpretation of legislative intent. Under the act, “Community College:”

... [S]hall mean a public college or technical institute which is established and operated in accordance with the provisions of this act by a local sponsor which provides [a post-secondary program].

24 P.S. § 19-1901-A (emphasis added). A local sponsor is a:

[s]chool district or a municipality or a county board of school directors or any combination of school districts, municipalities or county boards of school directors which participate in the establishment and operation of a community college.

24 P.S. § 19-1901-A (2). The local sponsor must submit a plan to the Board of Education, which must then approve or disapprove of the plan. The plan must outline the need for the proposed college, must outline the proposed financial backing and must propose the contemplated educational programs. In addition, the sponsor must set forth a detailed financial program for the college’s operation, which shall provide:

[T]hat at least two-thirds of the annual operating costs and up to one-half of the annual capital expenses shall be appropriated or provided by the local sponsor ... The plan shall indicate whether the appropriation shall come from general revenues, loan funds, special tax levies or from other sources, including student tuitions.

24 P.S. § 19-1913-A(a). The college is administered by a Board of Trustees, which may enter into contracts in the name of the college. All property purchased by the board of trustees shall be held in the name of a community college on behalf of the local sponsor of the college. 24 P.S. 19-1905-A.

Thus, the Commonwealth does not control the Colleges’ creation and operation. Local establishment of Community Colleges implements the legislative purpose of creating community colleges in response to local needs, providing that local financial support could be developed. In contrast, the legislature expressly created the State Colleges as part of its State System of Higher Education, a “public corporation and government instrumentality ... which shall consist of ... [the fourteen enumerated State Colleges].” 24 P.S. § 20-2002-A. Hence, as did the Commonwealth court, we reject the College’s claim to Commonwealth party status. In relying upon the above-cited statutes to ascertain the status of an entity, we adopt an approach taken by other courts of this Commonwealth. For instance, in Bradley v. Pennsylvania Turnpike Commission, 121 Pa.Commw. 51, 550 A.2d 261 (1988), the court relied on the fact that the Turnpike Commission was included in the complete list of independent agencies in 71 P.S. § 732-102 and on that basis held that the Commission was therefore a Commonwealth agency entitled to sovereign immunity.

Further, we recognize that the privilege of nullum tempus does not, in the absence of express provision, usually extend to municipalities, counties, or other political subdivisions, Pocono Township v. Hall, — Pa.Commw. —, 561 A.2d 53 (1989); City of Philadelphia v. Litvin, 211 Pa.Super. 204, 235 A.2d 157 (1967), unless these entities seek to enforce strictly public rights and obligations imposed by law. See Pocono Township, supra; City of Philadelphia v. Holmes Electric Protective Co., 335 Pa. 273, 6 A.2d 884 (1939). While we agree with the College that public education is a public right, the College does not argue that it is an integral part of any political subdivision. We conclude that it is as independent of municipalities and political subdivisions as it is independent of the Commonwealth.

For the same reason we reject the College’s argument in the alternative that, regardless of its status as a Commonwealth party, application of the proprietary versus governmental functions test yields the result that any function having to do with education is a core governmental function. We have concluded that any “functions” test is obsolete when the legislature has, by defining Commonwealth parties, eliminated the need for it. Bishop, discussed supra, upon which the College heavily and erroneously relies, decided only that elimination of sovereign immunity as a general principle did not mean elimination of nullum tempus as a general principle. It did not hold that a party that may not assert one privilege may nevertheless assert the other. The college cites no authority, nor do we find any, for this proposition. In fact, in making this argument and suggesting that it may not be entitled to sovereign immunity, the College inadvertently pinpoints the critical weakness in its position. The legislature has now designated which entities are Commonwealth parties, and, as we held above, this is dispositive of whether an entity may assert any governmental privileges.

ACCRUAL OF THE CAUSES OF ACTION

Having decided that the statutes of limitation may be asserted against the College, we will now discuss the College’s remaining challenges to the trial court’s ruling. There is no dispute over which statutes of limitation are applicable, nor are any of the facts in dispute. The trial court granted summary judgment because it determined that Spring of 1979 was the latest that any of the causes of action could have arisen. Because the applicable statutes of limitation in contract, tort and fraud ran before July 2, 1984, the date that the College commenced the action, the court granted Dow’s motion for summary judgment. We find no error in the trial court’s decision.

In reviewing a grant of a motion for summary judgment, the reviewing court must decide whether the record demonstrates both an absence of genuine issues of fact and an entitlement to judgment as a matter of law. Pa.R.G.P. 1035(b); Chicarella v. Passant, 343 Pa.Super. 330, 340, 494 A.2d 1109, 1114 (1985). When the date of accrual is certain, whether an action is timebarred is a question of law properly decided on a motion for summary judgment, unless there are disputed factual allegations. Cathcart v. Keene Industry Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). The College claims that its action was timely filed because, under the discovery rule, the latent defect in the building was not reasonably discoverable until less than two years before it filed suit. The College claims that the date of accrual of the action is a disputed question of fact that makes summary judgment for Dow inappropriate. The College also claims that Dow should be estopped from asserting the statutes of limitation because it fraudulently induced the College to sit on its rights.

Under the judicially-created discovery rule, the running of the statute of limitations on a cause of action in tort may be delayed by a plaintiffs ignorance of its cause of action until such time as the cause of action could or should have been discovered through the exercise of due diligence. Bickell v. Stein, 291 Pa.Super. 145, 435 A.2d 610 (1981). If, as in this case, the plaintiff alleges the existence of a latent defect in construction, the cause of action does not accrue until the plaintiff became aware or, through exercise of reasonable diligence, should have become aware of the defect. General State Authority v. Lawrie and Green and John McShain, Inc., supra. While most questions relating to whether a party has exercised due diligence in discovering the incidentce of his injury so as to toll the statute are jury questions, Taylor v. Tukanowicz, 290 Pa.Super. 581, 435 A.2d 181 (1981), summary judgment is proper where the plaintiff has failed to plead facts sufficient to toll the statute. Id. The College argues that the discovery rule applies to both its warranty and tort actions.

The trial court decided that, by virtue of Dow’s January 12, 1979 letter to the College and the College’s actual knowledge of the cracks, the facts pleaded established that the College reasonably should have become aware of the defect by the spring of 1979 at the latest. We have held that summary judgment is proper where the court can establish from undisputed facts the reasonable time for discovery of a defect. Cathcart v. Keene Industrial Insulation, supra. In Cathcart, an asbestos claim case, this Court, sitting en banc, decided that once the injured party discovers that he has an injury and that he is aware of the cause, the burden is upon him to discover the party whose breach was responsible. We held that the mere allegation of difficulty in identifying the defendants was not sufficient to toll the statute of limitations for those defendants who had not been named in the initial action and were named in a subsequent action only after they had been finally discovered. Therefore we granted summary judgment in favor of these later-discovered defendants. See also Huber v. McElwee-Courbis Construction, 392 F.Supp. 1379 (E.D.Pa. 1974).

We now apply the same reasoning to the case before us and affirm the trial court's conclusion that the statute began to run when the College received the letter from Dow and gained knowledge that the building was potentially defective because there were cracks in the masonry, or as the trial court determined, several months after this at the latest, by which time the College should have completed an inspection. The College presents scant evidence upon which to base a later date for discovery of the cause of action. It relies solely on the fact that, some time after the inspection, an independent expert read Dow’s report and informed the College that Sarabond probably caused the defect. The facts, construed in a light most favorable to the College, support the trial court’s conclusion that no genuine issue for trial exists regarding when the College should reasonably have discovered the defects.

STATUTES OF LIMITATION: APPLICATION

Now that we have established the outside date of accrual of the College’s claims, we will apply the statutes of limitation. The College asserted claims for breach of warranty, claims in tort and claims for fraud. The applicable statute of limitations for breach of warranty, 13 Pa.C.S. § 2725, permits an action to be brought within four years from tender of delivery of the goods. The building was completed in 1973. An exception addressing the situation in which the warranty extends to future performance does not apply in this case because there was no express warranty extending to future performance. Cucchi v. Rollins Protective Services, 377 Pa.Super. 9, 546 A.2d 1131 (1988). Further, the tort discovery rule does not apply to breach of warranty actions. Patton v. Mack Trucks, Inc., 360 Pa.Super 1, 519 A.2d 959 (1986). Therefore, the action would have had to have been brought by spring of 1983. We do not reach the issues of standing and status of parties raised by the College. The College’s strict liability and failure to warn claims in tort are also time-barred. The statute of limitation for these actions, 42 Pa.C.S. § 5524, sets forth a two-year time period. Therefore, these actions were time-barred after the spring of 1981 at the latest.

Finally, the College received leave to amend its complaint on December 30, 1985 to bring fraud charges against Dow. Generally a claimant has six years in which to bring suit for fraud claims arising before February, 1983. Borysowski v. State Farm Mutual Auto Insurance Co., 368 Pa.Super. 399, 534 A.2d 496 (1987); 42 Pa.C.S. § 5527. Because the building was substantially completed in 1973, the College would have had to bring fraud claims based upon fraudulent misrepresentation upon sale of Sarabond by 1979. The College asserts that because Dow’s concealment prevented it from discovering that Sarabond caused defects, the statute should not have begun to run until the College’s claimed date of discovery, or, in the alternative, that Dow should be estopped from asserting a statutes of limitation defense altogether.

If the party committing fraud is also guilty of some acts of concealment or deception which hides from the plaintiff that he has a cause of action, then the statute will run from the time discovery of the alleged fraud is made, or in the exercise of reasonable diligence should have been made. Turtzo v. Boyer, 370 Pa. 526, 88 A.2d 884 (1952). The College alleged that Dow’s report was a fraudulent misrepresentation that lulled it into believing that it could have no action against Dow. We agree with the trial court that, following Dow’s 1979 letter recommending that the College have an independent inspection performed, the College’s discovery of cracks and the knowledge that Dow was being sued elsewhere for damages due to Sarabond, no reasonable person would have relied on Dow’s subsequent denial of liability in the report.

We also agree with the trial court that Dow’s behavior was not such that the equitable principle of estoppel should preclude it from asserting the statute of limitations. Where by fraud or concealment the defendant causes the plaintiff to relax viligance or deviate from his right of inquiry, the defendant is estopped from invoking the statute of limitations. Molineux v. Reed, 516 Pa. 398, 532 A.2d 792 (1987). Although mere silence or nondisclosure is not enough to trigger estoppel, the adversary must commit some affirmative independent act of concealment upon which the plaintiffs justifiably rely in order to toll the statute. Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967); Dobbs on Remedies § 2.3 at 42 (1973). Dow’s 1979 letter actually served to warn the College, not lull it into complacency, about a possible cause of action. The College was not even aware before receipt of the letter that its building contained Sarabond. Further, the letter suggested that the College have an independent inspection. Following this entire chain of events, it was completely unreasonable for the College to rely on Dow’s disclaimer of liability in its later report, and, in fact, this disclaimer of liability cannot even be characterized as concealment. Therefore, we conclude, as did the trial court, that no estoppel principle operates here.

The trial court refuted Dow’s assertion in its motion for summary judgment that the statute of repose for construction projects, 42 Pa.C.S. § 5536, bars any action against Dow. We do not address this issue. The purpose of the statute is to bar actions brought beyond twelve years from completion of construction for personal injuries resulting from construction defects. Catanzaro v. Wasco Products, Inc., 339 Pa.Super 481, 489 A.2d 262 (1981). The present case does not involve a claim resulting from personal injuries.

The trial court’s exhaustive analysis of all aspects of the motion for summary judgment led it to conclude that the College demonstrated an egregious lack of diligence in bringing its cause of action against Dow. No facts were disputed. The nonmoving party, in response to a properly supported motion for summary judgment, must in response “set forth specific facts showing that there is a genuine issue for trial.” Pa.R.C.P. 1035(d). The trial court concluded that the College failed to do this. The trial court’s grant of Dow’s motion for summary judgment was proper. Hence, we affirm the order.

Order affirmed.

      . It has been suggested that the judicial tests like the one applied by the trial court were merely judicial rationalizations invoked for various policy reasons whenever it appeared that liability may prove too financially burdensome. See Bucci, Judicial Clarification of a Common Law Doctrine: The Pennsylvania Doctrine of Official Immunity, 84 Dick.L.Rev. 473 (1980). Determining when an entity is enforcing public rights and obligations has always been a source of difficulty; the efficacy of one of the traditional analyses used, whether an entity is performing a proprietary or governmental function, has been all but discredited. See Ayala, supra; “[The distinction] has caused confusion not only among the various jurisdictions but almost always within each jurisdiction (Citation omitted)____ Compare Shields v. Pittsburgh, supra [408 Pa. 388, 184 A.2d 240 (1962) ] (operation of playground during vacation is a governmental function) with Morris v. Mt. Lebanon Township School District, supra, [393 Pa. 633, 144 A.2d 737 (1958)] decided four years earlier, (operation of summer recreation program is a proprietary function).” Ayala, 453 Pa. at 598, 305 A.2d at 885. See also Falls Township v. McManamon, 113 Pa.Commw. 504, 537 A.2d 946 (1988). Further, the fiscal autonomy test, also used by courts to determine whether an agency is amenable to suit, is also no longer viable because of the legislative definitions of “Commonwealth agency.” See 84 Dick.L.Rev., supra.

      . The determination of liability for actions of individual officials, official immunity, which is a common law doctrine, is to be distinguished from the present discussion of whether an agency may assert sovereign immunity, a constitutionally-based doctrine. See Freach v. Commonwealth, 471 Pa. 558, 370 A.2d 1163 (1977). Determination of individual immunity may still require application of judicial tests.


source: Caselaw Access Project

author: WIEAND, Judge: OLSZEWSKI, Judge,

license: Public Domain

text:
    566 A.2d 600
    Milton L. METZEL, Individually and Rae Jean Metzel, Individually and Milton L. Metzel and Rae Jean Metzel, Parents and Natural Guardians of Alicia Metzel, a Minor, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 8, 1989.
    Filed Oct. 5, 1989.
    Reargument Denied Dec. 6, 1989.
    Petition for Allowance of Appeal Denied May 8, 1990.

      Kenneth J. Sparler, York, for appellants.
    George F. Douglas, Jr., Carlisle, for appellee.
    Before WIEAND, McEWEN and OLSZEWSKI, JJ.
   WIEAND, Judge:

The issue in this appeal is whether occupants of a Winnebago motor home are entitled to be paid benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act for injuries sustained as a result of an explosion which occurred while the vehicle was being used for lodging purposes. The trial court held that no such benefits could be recovered and entered summary judgment in favor of the no-fault insurance carrier. We affirm.

On December 26, 1983, Milton and Rae Jean Metzel, together with their daughter, Alicia, left their home in York, Pennsylvania, for a winter vacation in Florida. They stopped and parked their Winnebago motor home that night in Santee, South Carolina. At or about 2:30 a.m. on the following morning, Milton Metzel was awakened by a pounding noise in the side of the motor home. When he reached to adjust the thermostat, an explosion occurred which blew out the sides of the motor home and caused burns to the three members of the Metzel family. The explosion, it was subsequently determined, had been caused by a malfunction of the regulator valve in the motor home’s propane system.

The insurer of the Metzel vehicle was State Farm Mutual Automobile Insurance Company (State Farm), which had issued a policy in accordance with the Pennsylvania No-fault Act. State Farm denied liability for no-fault benefits, asserting that at the time of the explosion the Winnebago was being used as a place of lodging and not as a vehicle for purposes of transportation. When the Metzels filed suit to recover no-fault benefits, State,Farm filed a motion for summary judgment. Thereafter, the Metzels also moved for summary judgment, and the parties entered a stipulation of the facts relevant to a decision of the case.

Summary judgment is appropriate where it is clear that there remain no genuine issues of fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b). In the instant case, the facts are not in dispute, and the only issue is whether, under the circumstances, appellants are entitled to recover no-fault benefits.

The purpose of the No-fault Insurance system was to provide “basic loss benefits for motor vehicle accident victims....” 40 P.S. § 1009.102(b). Section 1009.103 contained the following definitions:

“Victim” means an individual who suffers injury arising out of the maintenance or use of a motor vehicle; ... “Maintenance and use of a motor vehicle” means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it----

(emphasis added). The test used in applying the “maintenance and use” requirement of the No-fault Act to individual fact situations is whether the injury suffered was causally related to the use of a motor vehicle as a vehicle. Crawford v. Allstate Insurance Company, 305 Pa.Super. 167, 173, 451 A.2d 474, 477 (1982). “[W]hile the causal connection need not rise to the level of proximate causation, for purposes of coverage under the No-fault Act there must be some connection, more than mere chance or happenstance, between the injuries sustained and the insured vehicle” while the vehicle was being used as a vehicle. Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 303, 452 A.2d 735, 737 (1982). See also: Howe v. Harleysville Insurance Companies, 313 Pa.Super. 65, 67, 459 A.2d 412, 413 (1983).

The facts of this case closely parallel those of Crusco v. Insurance Company of North America, 292 Pa.Super. 293, 437 A.2d 52 (1981). In that case, appellant’s decedent was killed while she was occupying a motor home parked in a parking lot. Gas had been leaking from a faulty gas line connected to the refrigerator, and an explosion had occurred when the decedent attempted to light the stove to prepare dinner. In an action to recover benefits under the No-fault Act, the trial court entered summary judgment in favor of the insurer, and the insured appealed. The Superi- or Court affirmed, reasoning as follows:

[W]e agree with the conclusion reached by the New York Supreme Court, Appellate Division, which was faced with an almost identical situation in Reisinger v. Allstate Insurance Company, 58 A.D.2d 1028, 397 N.Y.S.2d [52] (1977). In Reisinger, the plaintiff had sought to recover under the No-fault Act for injuries suffered when the gas cook stove in the insured “mini motor home” exploded during the preparation of breakfast. As in this case, the motor home was parked at the time of the accident. Rejecting the claim, the New York court explained:

The No-fault coverage required by the statute applies for use of the motor vehicle qua motor vehicle, not the use of equipment built into the vehicle to serve some other function.” (citing inter alia, 12 Couch on Insurance 2d § 45:47) 58 A.D.2d at 1028, 397 N.Y.S.2d at 52, 53.

We would add that the construction of the statute urged upon us by appellant would require that we ignore the statute’s mandate that the accident result from the use of the vehicle as a vehicle. Yet, in construing the language of a statute, the court must assume that the legislature intended that every word of the statute would have effect. See Commonwealth v. Driscoll, 485 Pa. 99 401 A.2d 312 (1979), Lukus v. Westinghouse Electric Corporation, 276 Pa.Super. 232, 419 A.2d 431 (1980). Furthermore, it is assumed that the legislature uses words in their standard, or accepted, sense. See Commonwealth v. Ashford, 263 Pa.Super. 100, 397 A.2d 420 (1979).

Id. 292 Pa.Super. at 297, 437 A.2d at 53-54 (emphasis in original).

In the instant case, appellants’ motor home was being used for overnight lodging when the faulty propane regulator valve caused an explosion of the furnace which, at that time, was being used for heating purposes. It seems clear, therefore, that the motor home was not, at the time of the explosion, being used as a vehicle within the meaning of the No-fault Act. See also: Quinn v. By-Pass Garage, Inc., 333 Pa.Super. 412, 482 A.2d 634 (1984) (injuries suffered when insured fell from upper bunk of motor home while parked for overnight lodging did not arise from maintenance or use of vehicle as vehicle, and benefits were properly denied). Cf. Schenk v. Ohio Casualty Insurance Group, 346 Pa.Super. 42, 498 A.2d 1361 (1985) (child who cut leg on parked automobile was not entitled to no-fault benefits; injury did not result from use or maintenance of automobile as vehicle); Burger v. State Farm Insurance Companies, 30 D. & C. 3d 398 (1984) (child injured in refrigerated meat truck while mother was shopping for meat not entitled to no-fault insurance benefits; activity was not related to use of motor vehicle as vehicle).

We need not decide whether the decision in Spisak v. Nationwide Mutual Insurance Company, 329 Pa.Super. 483, 478 A.2d 891 (1984) is out of line with other decisions of the Superior Court, for it is, in any event, distinguishable. In Spisak, the bodies of plaintiffs decedent and his female companion were found in the decedent’s car, which had been pulled off the highway and stopped while the motor had been left running. While engaged in “compromising activities,” the occupants of the vehicle were overcome by carbon monoxide fumes from the automobile’s exhaust system. The trial court entered summary judgment in favor of the insurer, concluding that the occupants were not using the automobile as a vehicle at the time they were overcome. A panel of the Superior Court reversed. It distinguished the decision in Crusco on its facts because in Spisak death had resulted directly from the “operation of the vehicle’s engine while it was parked.” In the instant case, as well as in Crusco and Quinn, the motor home had been removed from the highway, it had been parked in a stationary position with its engine shut off, and it was being used for living and/or sleeping purposes when the injury occurred. At the time of the explosion, therefore, appellants’ motor home was not being occupied or used “as a vehicle” but as living quarters. This fact is not altered merely because the defective propane valve regulated the supply of propane not only to the heater and various appliances but also to the auxiliary fuel tank which could be used when the vehicle was in operation.

Appellants’ argument that they were charged a higher premium because coverage was being provided for a Winnebago and that, therefore, they could reasonably expect coverage for the type of accident occurring in this case is being made for the first time on appeal and is not supported by the record. What is clear is that neither the Pennsylvania No-fault Law nor the policy issued by State Farm required the payment of no-fault benefits for an incident which occurred while the Winnebago was being used as a home and not as a vehicle. We hold, therefore, that the trial court properly entered summary judgment in favor of the appellee-insurer.

Affirmed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

After long reflection, I regret that I must respectfully disagree with my learned colleagues’ conclusion that the facts of the instant case do not fall within the confines of the No-fault Act. While the case relied upon by the majority, Crusco v. Insurance Company of North America, 292 Pa.Super. 293, 437 A.2d 52 (1981), is factually similar to the ease sub judice, when applied to the facts herein, its analysis runs counter to the liberal interpretation our Courts have always used when determining whether coverage existed under the Act. I must, therefore, respectfully dissent.

In order for an insured to be entitled to no-fault benefits, the injury or death must be causally related to the use of a motor vehicle. Crawford v. Allstate Insurance Company, 305 Pa.Super. 167, 451 A.2d 474 (1982). Section 103 of the No-fault Act defines a “maintenance and use of a motor vehicle” as a “maintenance or use of a motor vehicle as a vehicle ...” (emphasis added). 40 P.S. § 1009.103. In discussing the intent of the legislature in drafting the No-fault Act, this Court in Dull v. Employers Mutual Casualty Company, 278 Pa.Super. 569, 420 A.2d 688 (1980) noted:

The purpose of the No-fault Act is “to establish at reasonable cost ... a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims ...” 40 P.S. § 1009.102(b). See Dubose v. McCoy, 277 Pa.Super. 149, 419 A.2d 705 (1980); Hayes v. Erie Insurance Exchange, 261 Pa.Super. 171, 395 A.2d 1370 (1978); Singer v. Sheppard, 33 Pa.Cmwlth. 276, 381 A.2d 1007 (1978). The Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq., which provides that “[wjords and phrases shall be construed ... according to their common and approved usage,” id. § 1903, also provides that statutes such as the No-fault act “shall be liberally construed to effect their objects and to promote justice.” Id. § 1928(c) ... In Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), our Court stated: “Historically, the courts of this Commonwealth have ... found coverage for the insured in close or doubtful insurance cases. The tendency has been that if we should err in ascertaining the intent of the legislature ..., we should err in favor of coverage for the insured.” Id. 265 Pa.Super. at 187, 401 A.2d at 1162-63 (footnote omitted).

Id., 278 Pa.Superior Ct. at 571-572, 420 A.2d at 689.

Typical of the kind of case in which a liberal approach is used in interpreting the provisions of the No-fault Act is Spisak v. Nationwide Mutual Insurance Company, 329 Pa.Super. 483, 478 A.2d 891 (1984). In Spisak, the plaintiff’s decedent was killed when he and a female companion engaged in “compromising activities” in the back of his vehicle which had been parked off the road. The engine had been running at the time and the occupants of the car were overcome by carbon monoxide poisoning due to a faulty exhaust system. In upholding an order awarding no-fault benefits, this Court distinguished the Crusco holding as involving a situation in which coverage was denied because the injury was caused by an instrumentality external to the vehicle itself. In Spisak, however, the Court determined that the harm arose directly from the carbon monoxide fumes emanating from the faulty exhaust system while the vehicle was parked and the engine running. Under those circumstances the Court was quick to find a causal connection between the death of the victim and the use of a vehicle as a vehicle.

Instantly, we are presented with a factual situation that is distinguishable from that presented in Crusco. Here, as in Crusco, we have an injury which occurred due to an explosion occasioned by a faulty propane system. Unlike Crusco, however, evidence appears on the record that the propane system in the present case could also be used to fuel the vehicle itself. While the trial court found this fact of no consequence, I find its reasoning to be tenuous at best. Nor does the majority offer sufficient justification for so finding. Because I believe this to be a close case, I would conclude, as in Spisak, that the auxiliary use of the propane system to propel the motor home provides the causal connection between the injury and the use of the motor home as a vehicle. To hold otherwise, in my opinion, would be to strictly construe against insureds an Act that historically has been liberally interpreted in favor of them. This, I am not prepared to do.

Motor homes are recognized as being “vehicles” under the No-fault Act. See 40 P.S. § 1009.103; 75 Pa.C.S.A. § 102; Crusco, supra, 292 Pa.Super. at 295, 437 A.2d at 53. Moreover, their intended purpose is clear — to provide transportation as well as temporary living quarters. Since the insurer is surely cognizant of this dual role, the proper way for it to have excluded coverage for an accident such as the one herein, would be to expressly state as such in the policy of insurance. Because this was not done, and because the appellants could not possibly be aware of the consequences of the accident in terms of their no-fault coverage, I would reverse the trial court’s order granting summary judgment.

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

      . Appellants’ reliance on the decision in Crawford v. Allstate Insurance Company, 305 Pa.Super. 167, 451 A.2d 474 (1982) is misplaced. The issue in that case pertained to the use as a vehicle of a pickup truck which had been equipped with a special device to permit its operation on railroad tracks. The court held that it was being used as a vehicle when it collided with a pedestrian while being operated on railroad tracks.

      . The trial court reasoned that as the system was being used to heat the vehicle, much like one would use a furnace at home, the fact that the system could be used to propel the vehicle did not affect the outcome of their decision. This use, however, is arguably similar to that in Spisak.


author: BROSKY, Judge.

text:
    566 A.2d 605
    COMMONWEALTH of Pennsylvania, Appellant, v. Joseph E. HESS.
    Superior Court of Pennsylvania.
    Argued June 13, 1989.
    Filed Oct. 24, 1989.
    Reargument Denied Dec. 7, 1989.
    Petition for Allowance of Appeal Granted May 29, 1990.

      Syndi L. Norris, Asst. Dist. Atty., Carlisle, for Com.
    William Costopoulos, Lemoyne, for appellee.
    David M. McGlaughlin, Philadelphia, amicus curiae.
    Before BROSKY, BECK and HOFFMAN, JJ.
   BROSKY, Judge.

This appeal, taken by the Commonwealth of Pennsylvania, is from an Order vacating a temporary restraining order and dismissing the Commonwealth’s Motion for preservation of property subject to forfeiture.

On appeal, the Commonwealth contends that an evidentiary hearing was necessary to determine the nature and source of the restrained assets and the nature of the contractual agreement between the parties relative to these assets. The Commonwealth also asserts that the procedure of restraining assets used to pay attorneys’ fees by the issuance of a temporary restraining order does not violate a criminal defendant’s right to counsel under the Sixth Amendment to the United States Constitution or under Article I, Section 9 of the Pennsylvania Constitution, does not violate due process of law under the Fifth and Fourteenth Amendments to the United States Constitution or under Article I, Section 9 of the Pennsylvania Constitution and does not constitute an unlawful seizure in contravention of the Fourth and Fourteenth Amendments to the United States Constitution or Article I, Section 8 of the Pennsylvania Constitution; nor, the Commonwealth maintains, is the forfeiture statute overly broad and void for vagueness. Lastly, but not the least, the Commonwealth argues in support of the viability of the statute in terms of the public policy interests at stake in ferreting out those responsible for illegal drug trafficking and the concomitant evils which that trade engenders.

For reasons that follow, we are of the opinion that the trial court was required to conduct an evidentiary hearing to determine, as a threshold matter, whether the assets restrained pursuant to the temporary restraining order are traceable to an illegal drug exchange, thus making them subject to forfeiture. Accordingly, we vacate the Order of the trial court of November 28, 1988, which vacated the temporary restraining order entered on September 22, 1988, and dismissed the Motion of the Commonwealth for preservation of property, and remand for the holding of such evidentiary hearing.

On September 15, 1988, Joseph E. Hess (hereinafter, “Hess”) was arrested by a Tri-County Narcotics Strike Force and charged with the sale and delivery of one quarter pound of cocaine and conspiracy to sell and deliver the cocaine. Subsequently, he obtained the services of William C. Costopoulos, Esquire, (hereinafter, “Costopoulos”) of the law firm of Kolias, Costopoulos, Foster and Fields (hereinafter, “the law firm”) to represent him on the above charges.

On September 22, 1988, the Commonwealth filed a Motion for preservation of property subject to forfeiture in which it averred, inter alia, that the law firm which Hess had retained required payment of a significant cash retainer prior to representation, that Hess did not have the means to acquire the amount of cash needed for the retainer, except for funds which the Commonwealth believed were derived directly from illegal drug trafficking, and that the monies paid to the law firm represent proceeds which are traceable to such drug trafficking.

The Commonwealth requested injunctive relief to preserve during the pendency of the forfeiture claim all money, securities, negotiable instruments and other thing of value paid to the law firm by Hess for legal representation. That same day, Judge Bayley of the Court of Common Pleas issued a temporary restraining order enjoining Hess and the law firm from disposing of any monies, securities, negotiable instruments and/or any other thing given by Hess to the law firm as payment of the retainer for legal services on the pending drug charges. The Order also directed that these assets be preserved in the law firm’s escrow account pending further order of court. The restraining order was to remain in effect until the conclusion of the hearing set for September 29,1988. The hearing date was continued to September 30, 1988, by agreement of the court and the parties.

On that date, i.e., September 30, 1988, Hess, through Costopoulos, filed a Motion to strike the Commonwealth’s Motion for preservation of property and to lift the temporary restraining order. This Motion alleged, inter alia, that the law firm had complied with the directive of the temporary restraining order. Hess also set forth various constitutional and statutory objections to the enabling legislation, 42 Pa.C.S.A. § 6801 et seq., the Commonwealth’s Motion to preserve and the temporary restraining order. By permission of the court, the Pennsylvania Association of Criminal Defense Lawyers (hereinafter, “amicus”), intervened as amicus curiae and also filed a Motion to vacate the temporary restraining order. The Motion of amicus launched a constitutional attack upon the forfeitures statute, supra, both facially and as applied.

However, on September 30, 1988, the date set for the hearing on the temporary restraining order, Costopoulos informed the court that he wished to brief the constitutional issues raised in Hess’ Motion to strike and vacate as threshold issues prior to any hearing. The court agreed and, by Order filed October 4, 1988, it continued the temporary restraining order and and set oral argument on the Motion and the briefs for October 18, 1988. At the September 30, 1988, “proceeding” the court informed the parties that it would not hold a hearing on October 18, 1988, or subsequently, unless the parties could demonstrate that relevant evidence was available to supplement the record. By Order of November 28, 1988, the trial court vacated the temporary restraining order entered on September 22, 1988, and dismissed the Commonwealth’s Motion for preservation of property. This appeal followed.

The parties, in their respective appellate briefs, and the trial court, in its Opinion filed in conjunction with the above Order, assumed, for the purpose of analyzing the statutory and constitutional claims, that the monies or other thing(s) of value tendered to the law firm as a retainer for Hess’ drug charge defense and which are the subject of the temporary restraining order represent proceeds directly traceable to illegal drug transactions.

The court, in its Opinion, reasoned that the phrase “all proceeds traceable to such an exchange” as used in the statute (see 42 Pa.C.S.A. § 6801(a)(6)(i)(A)) exempts from its reach legal fees tendered for legitimate representation because “if a criminal defendant pays a retainer to an attorney for legitimate criminal defense representation, that constitutes a contract with the attorney. As long as the attorney provides the legal services [] and charges a fee that is not illegal or excessive, he or she is entitled to the money paid on retainer” regardless of the source of that money. Trial Court Opinion, 11; footnote omitted. The court also held that the above phrase does not contemplate subjecting the assets of “bona fide innocent persons”, i.e., attorney fees paid for legal representation, to forfeiture. Id. at 9. Moreover, the court was

not willing to conclude that an attorney reasonably knows that the money received as a retainer for criminal defense representation comes from a prohibited activity____ Payment of money for legitimate legal services under these circumstances, even though there is a possibility that it was obtained from an illegal source, does not constitute a sham transaction [ ] or the ‘parking’ of money with an attorney [ ] and does not change the status of the attorney from a bona fide innocent person____

Id. at 12; emphasis in original.

In deciding that the retainer funds were not subject to forfeiture under the statute, the trial court believed that the payment of legal fees represents a valid contractual arrangement between attorney and client for the performance of services and that this contractual arrangement confers upon the attorney the status of a bona fide innocent third person whose assets, for that purpose, are beyond the reach of the statute. Indeed, the trial court stated that “[o]nly a seizure from a [drug] dealer or a non-innocent third party subjects [the assets of] those persons to forfeiture under [the statute].” Id. at 13.

The trial court summarily decided the matter “based upon the averments by the Commonwealth in this case ...” (Id. at 14) without first conducting an evidentiary hearing into the viability of continuing the temporary restraining order and in ascertaining the traceability of the funds temporarily restrained and sought to be forfeited.

While we are loathe to criticize the trial court for handling this matter in the summary fashion in which it did, we are equally hard pressed to justify its failure to conduct such a hearing based upon what we believe to be the statute’s clear directive in this regard. The trial court stated that an evidentiary hearing was not necessary in this case because it was of the opinion that the Commonwealth had produced no evidence that the transaction between Hess and the law firm which involved the temporarily restrained funds was a sham. A hearing is only necessary, according to the trial court, “[i]f the Commonwealth has information in a particular case and avers that the payment of a retainer to an attorney by a defendant is for purposes other than for legitimate criminal defense representation____” Id., note 18; emphasis in original. The trial court found, in other words, that, even assuming the illegality of the source, funds given to a third party for a lawful purpose, e.g., in this case, as payment for validly contracted for legal services, fall outside the reach of the forfeitures statute.

On appeal, the Commonwealth argues that a hearing was necessary in order to enable it to establish that the funds paid to the law firm as a retainer were subject to forfeiture pursuant to 42 Pa.C.S.A. § 6801(a). Sections 6801 and 6802, tit. 42 Pa.C.S.A., concern controlled substances forfeitures. Section 6801 sets forth, inter alia, what property shall be subject to controlled substances forfeiture. In relevant part, it provides:

(a) Forfeitures generally. — The following shall be subject to forfeiture to the Commonwealth and no property right shall exist in them:
(6)(i) All of the following:
(A) Money, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act, and all proceeds traceable to such an exchange.

Emphasis added. Section 6802, entitled “Procedure with respect to seized property subject to liens and rights of lienholders”, describes the steps which the Commonwealth must take and the proofs to which it is subject in obtaining an adjudication of forfeiture and details the procedure which the court is to follow in making its determination. The procedure followed in the instant case is provided for in subsections (f) and (g) as follows:

(f) Preservation of the property subject for [sic] forfeiture. — Upon application of the Commonwealth, the court may enter a restraining order or injunction ... to preserve the availability of property described in section 6801(a) for forfeiture under this section ...
(1) ...
(2) prior to the filing of such an indictment or information, if, after notice to persons appearing to have an interest in the property and an opportunity for a hearing, the court determines that:
(i) there is a substantial probability that the Commonwealth will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court or otherwise made unavailable for forfeiture; and
(ii) the need to preserve the viability of the property through the requested order outweighs the hardship on any party against whom the order is to be entered.
However, an order entered pursuant to this paragraph shall be effective for not more than 90 days unless extended by the court for good cause shown or unless an indictment or information ... has been filed.
(g) Temporary restraining order. — A temporary restraining order under subsection (f) may be entered upon application of the Commonwealth without notice or opportunity for a hearing when an information or indictment has not yet been filed with respect to the property, if the Commonwealth demonstrates that there is probable cause to believe that the property with respect to which the order is sought would be subject to forfeiture under this chapter and that provision of notice will jeopardize the availability of the property for forfeiture. Such a temporary order shall expire not more than ten days after the date on which it is entered, unless extended for good cause shown or unless the party against whom it is entered consents to an extension for a longer period. A hearing requested concerning an order entered under this subsection shall be held at the earliest possible time and prior to the expiration of the temporary order.

All emphasis supplied. Moreover, subsection (h) provides with respect to the above two subsections as follows: “(h) Hearing regarding property; rules of evidence. — The court may receive and consider, at a hearing held pursuant to subsection (f) or (g), evidence and information that would be inadmissible under the rules of evidence.”

Unlike the trial court and the parties, we believe that the threshold consideration is to determine whether the assets paid to the law firm and/or Costopoulos do represent proceeds traceable to an exchange for a controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq. In our view, this can only be accomplished by the holding of an evidentiary hearing into the source of these proceeds. The forfeitures statute is not silent in this regard. We have set forth, supra, the subsections of Section 6802 of the forfeitures statute which we believe are controlling in this regard.

Section 6802(f), which speaks of the procedure to be followed in requesting preservation of property subject to forfeiture and the power of the court to enter a restraining order or injunction in response to an application therefor, provides in subsection (f)(2) for a hearing prior to entry of any restraining order or injunction. At that hearing, the Commonwealth must demonstrate a substantial probability that it will be successful on the forfeiture issue and that the property will be destroyed, removed or be made otherwise unavailable for forfeiture if the order is not entered. The Commonwealth must also show that the need to preserve the property outweighs any hardship on the part of any party who would be adversely affected by the entry of such order.

Section 6802(g), describing the method by which the Commonwealth may seek a temporary restraining order to preserve property, as was done instantly, eliminates the necessity for a hearing prior to the entry of a temporary order if the Commonwealth demonstrates the existence of probable cause to believe that the preservation of the subject property is in jeopardy. However, it provides for the holding of a hearing once the temporary order is entered and before the expiration of the temporary order.

That both procedural scenarios described under these subsections contemplate the holding of a hearing is illustrated by the language contained in Section 6802(h) which refers to the scope and kind of evidence admissible “at a hearing held pursuant to subsection (f) or (g).” The final sentence of Section 6802(g) envisions a situation where a hearing is held concerning the viability of a permanent or continuing type of restraining order after entry of a temporary order. It is evident that subsections (f) and (g) complement each other, and it is further apparent that both subsections provide for the holding of an evidentiary hearing before the entry of a permanent restraining order or the continuation of a temporary order.

Prior to assessing any statutory construction claims or constitutional attacks upon the statute, itself, the plain wording of Section 6802(f) and (g) contemplates the holding of an evidentiary hearing to meet the threshold problem of ascertaining the source of the funds, monies or proceeds and to determine if its/their source is traceable to an illegal drug transaction. The failure of the trial court to conduct such threshold hearing and its disposition of the matter in summary fashion was error, and we so hold.

In United States v. Monsanto, — U.S.-, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989), a case almost factually and procedurally similar to the matter at bar, the United States of America, pursuant to the criminal forfeitures provision of the Comprehensive Forfeiture Act of 1984, 21 U.S.C. § 853, sought and was granted, under subsection (e)(1)(A) thereof, a temporary restraining order freezing certain assets of Monsanto pending trial. Monsanto moved to vacate the restraining order, alleging that he needed these assets to enable him to retain counsel. Monsanto also raised the identical statutory and Sixth Amendment and due process claims now advanced by Hess.

On appeal from the denial of Monsanto’s Motion to vacate, a panel of the United States Court of Appeals for the Second Circuit remanded the matter to the United States District Court for an “adversarial hearing ‘at which the government ha[d] the burden to demonstrate the likelihood that the assets are forfeitable;’ if the Government failed its burden at such a hearing ... any fees paid to an attorney would be exempt from forfeiture irrespective of the final outcome at respondent’s [Monsanto’s] trial.” At —-, 109 S.Ct. at 2661. Following this mandate, the District Court held a hearing, which spanned four days, on the feasibility of continuing the restraining order. At the conclusion of the hearing, the District Court directed that the restraining order remain in effect “because the Government had ‘overwhelmingly established a likelihood’ that the property in question would be forfeited at the end of trial.” Id?

The Supreme Court declined to consider whether a hearing must be held before imposition of a pretrial restraining order, even though the panel of the Court of Appeals ordered that such hearing be held, in response to which directive the District Court held a four-day hearing, as noted above. The High Court stated that given the United States’ success on the Motion for a restraining order at the hearing and the failure of the Court of Appeals sitting en banc to address this procedural due process issue, it would be pointless to consider whether the Due Process Clause requires such a hearing and, if so, whether the hearing conducted in the District Court was adequate.

We do not read the above as an express or implied disapproval of the holding of a hearing of the type for which we now remand. In fact, the Supreme Court, in its holding, agreed with the finding of the District Court at the conclusion of the four-day hearing that the United States had satisfactorily discharged its burden of proving that the assets in question were forfeitable. Moreover, the Supreme Court limited its dicta to possible constitutional requirements rather than to a plain reading of the forfeitures statute.

The Commonwealth further maintains that if it is successful in establishing at such a hearing that the funds are subject to forfeiture because of their illegal use or possession, the burden then shifts to the claimants), i.e., the law firm and/or Costopoulos, to prove that such illegal use or possession by Hess was without his/their reasonable knowledge or consent and that his/their acquisition of the funds was lawful. Section 6802 of the forfeitures statute specifically allocates this burden as follows:

(j) Owner’s burden of proof. — At the time of the hearing, if the Commonwealth produces evidence that the property in question was unlawfully used, possessed or otherwise subject to forfeiture under section 6801(a), the burden shall be on the claimant to show:
(1) That the claimant is the owner of the property____
(2) That the claimant lawfully acquired the property.
(3) That it was not unlawfully used or possessed by him. In the event that it shall appear that the property was unlawfully used or possessed by a person other than the claimant, then the claimant shall show that the unlawful use or possession was without his knowledge or consent. Such absence of knowledge or consent must be reasonable under the circumstances presented.

With regard to a hearing, subsection (i) provides: “(i) Hearing time set. — Upon the filing of a claim for the property setting forth a right of possession, the case shall be deemed at issue and a time shall be fixed for the hearing.”

We believe, however, that the Commonwealth’s argument regarding the allocation of the burden of proof, just like its statutory and constitutional assertions, is not ripe for adjudication at this juncture.

At this point in the proceedings, the trial court must ascertain, initially, whether the monies restrained are traceable to an illegal drug trafficking exchange so as to render these funds subject to forfeiture. It is for a determination of this threshold issue that we remand. If the Commonwealth is able to demonstrate to the satisfaction of the trial court at the evidentiary hearing to be held for this purpose that the funds restrained are traceable to such an exchange, making them subject to forfeiture, then the restraining order will remain in effect until the conclusion of the forfeiture proceedings.

The burden of proof delineated in Section 6802(j) is triggered by the filing of a claim for property sought to be forfeited pursuant to subsection (i) thereof. At the hearing to be held on remand, the determination to be made is whether the restrained assets are traceable to an illegal drug exchange, thus subjecting them to forfeiture proceedings. If the Commonwealth successfully demonstrates that the subject assets are traceable to an illegal drug transaction, then the burden of proof shifts to Hess, and/or Costopoulos and/or the law firm as set forth in Section 6802(j). In sum and for the above-stated reasons, we are remanding this matter to the trial court for the holding of an evidentiary hearing to determine the threshold concern whether the assets in question are traceable to any illegal drug exchange which would make these funds subject to forfeiture to the Commonwealth as provided by 42 Pa.C.S.A. § 6801.

Order of November 28, 1988, vacating the temporary restraining order of September 22, 1988, and dismissing the Motion of the Commonwealth for preservation of property is vacated. Matter remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

      . The court, in its Opinion, did not reach the constitutional claims raised by the parties.

      . The record does not contain any transcript of an oral argument. The Opinion of the trial court only notes that oral argument was scheduled for October 18, 1988, and indicates that "[t]he threshold [constitutional and statutory] issues have been briefed and argued and are ready for decision." At 4.

      . Nothing in the record indicates that an indictment had been found or that an information had been filed against Hess on the drug charges at the time the Commonwealth filed its Motion to preserve.

        . The Supreme Court considered and rejected these claims. See also Caplin & Drysdale, Chartered v. United States, — U.S. —-, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) (identical constitutional claims raised by law firm seeking to exempt funds transferred for payment legal fees to it by client charged with CCE drug trafficking from restraining order for possible forfeiture rejected).

      . We pause to note only as a matter of information that Monsanto was ultimately tried and convicted of multiple violations of RICO and CCE as well as tax and firearm offenses. He proceeded to trial with counsel appointed under the Criminal Justice Act. After Monsanto’s trial had commenced, the Court of Appeals vacated the panel opinion and granted reargument before the court en banc. During Monsanto’s trial, a very divided Court of Appeals ordered modification of the restraining order to permit Monsanto to pay counsel fees from the restrained assets. Pursuant to this mandate, the trial court held a hearing at which it offered to permit Monsanto to use the restrained assets to hire private counsel. Monsanto refused the court's offer, and the trial continued with court-appointed counsel. After rendition of a verdict of guilty on the substantive charges, the jury returned a special verdict finding the restrained assets forfeitable beyond a reasonable doubt.

      . 21 U.S.C. § 853(e) essentially tracks the language of 42 Pa.C.S.A. § 6802(f), (g) and (h) with regard to the holding of an evidentiary hearing on the propriety of a pre-trial restraining order.

      . We do not decide at this time whether the Motion to strike the Commonwealth’s Motion for preservation of property and to lift the temporary restraining order filed on behalf of Hess by Costopoulos qualifies as a claim for property under Section 6802(i).

      . We are cognizant of decisions of the appellate courts of this Commonwealth decided under the former forfeitures provision of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-128 and 780-129. See e.g., Commonwealth v. One 1985 Cadillac Seville, 371 Pa.Super. 390, 538 A.2d 71 (1988); Commonwealth v. Tate, 371 Pa.Super. 611, 538 A.2d 903 (1988); Commonwealth v. Fifteen thousand eight hundred thirty six dollars and eighty-five cents — Cash, 354 Pa.Super. 279, 511 A.2d 871 (1986); Commonwealth v. Graham, 334 Pa.Super. 170, 482 A.2d 1277 (1984); Commonwealth v. One (1) Chevrolet Box-Type Truck, 126 Pa. Commw. 173, 559 A.2d 76 (1989); Commonwealth v. One 1976 Oldsmobile Cutlass Supreme, 85 Pa. Commw. 433, 482 A.2d 686 (1984). However, none of these cases involved the entry of a restraining order pursuant to a Commonwealth Motion to preserve property subject to forfeiture now provided by the new drug forfeitures provision, 42 Pa.C.S.A. §§ 6802(f) and (g). The former legislation, contained as part of the Drug Act, itself, simply did not provide for a procedure whereby the Commonwealth could file an application with the court to have property preserved by the entry of a restraining order pending forfeiture. Even so, in those cases, forfeiture hearings were held at which the Commonwealth was permitted to present evidence concerning the forfeitability of the property in question. In Commonwealth v. One (1) Chevrolet, supra, Commonwealth Court remanded for the holding of a hearing to allow the Commonwealth to present its evidence.
      We also recognize the existence of other cases involving appeals from denials or grants of applications for return of property which had been seized pretrial. The applications were filed pursuant to Pa.R.Crim.P. 324, and, except in one case, the property seized did not involve underlying drug-related charges. See, e.g., Petition of McLaughlin, 367 Pa.Super. 60, 532 A.2d 453 (1987) (involving Forfeiture and Condemnation of Vehicles Act, 35 P.S. § 831.1 et seq.); Sugalski v. Cochran, 365 Pa.Super. 370, 529 A.2d 1104 (1987) (involving 18 Pa.C.S.A. § 5513(b), confiscation of gambling devices, and Liquor Code provision, 47 Pa.C.SA. § 6-602(e)); Commonwealth v. Doranzo, 365 Pa.Super. 129, 529 A.2d 6, allocatur denied, 517 Pa. 614, 538 A.2d 497 (1987); Estate of Peetros v. County Detectives, 341 Pa.Super. 558, 492 A.2d 6 (1985); Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985). Again, none of the above-cited cases involved the issuance of a restraining order pursuant to a Motion to preserve, although Pa.R.Crim.P. 324(b) does provide for forfeiture in the event the court determines that the property sought to be returned to the aggrieved person is contraband.


author: OLSZEWSKI, Judge:

text:
    566 A.2d 612
    COMMONWEALTH of Pennsylvania v. ONE 1984 BLUE/SILVER OLDSMOBILE CAR SEIZED FROM LOUIS THOMPKINS. Appeal of Louis THOMPKINS. (Two Cases) COMMONWEALTH of Pennsylvania ex rel. Louis THOMPKINS v. PHILA. POLICE DEPT. POLICE COMMISSIONER.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1989.
    Filed Nov. 20, 1989.

      Arnold F. Laikin, Norristown, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Phila. Police Dept, Police Com’r, appellee (at 3240).
    Laurie Magid, Asst. Dist. Atty., Philadelphia, for the Com., appellee (at 3241).
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

On August 4, 1988, at approximately 2:00 in the afternoon, police officer Thomas Smith (hereinafter “Officer Smith”) and his partner were in plain clothes conducting surveillance in the area of 16th and Mount Vernon Streets, Philadelphia, Pennsylvania. Officer Smith observed appellant, Louis Thompkins, driver and owner of the subject vehicle, a 1984 Oldsmobile, stop at the southwest corner of 16th and Mount Vernon Streets. Officer Smith was within 30 feet of appellant’s automobile. Officer Smith observed appellant’s passenger, Eric Williams (hereinafter “Williams”), exit the vehicle, cross the street, and briefly talk to an unidentified male. Williams then went back to appellant, who had by now exited the vehicle himself. Appellant handed Williams some cash. Williams then crossed the street and received several small packets from the other man. Officer Smith was approximately 50 feet away from this man. Williams returned to the vehicle, and both individuals drove away. Officer Smith followed and observed Williams hand appellant a packet. The vehicle was stopped. The police found a small plastic packet of cocaine (71 milligrams) and a small straw on the bucket seat between appellant’s legs. Under the passenger’s left leg, the police found a small, bluish, plastic zip-lock packet of marijuana (2.1 grams). The officers arrested both individuals and seized the automobile.

Appellant states that he drove Williams to 16th and Mount Vernon Streets because Williams had to pick up something. When they arrived, Williams disappeared and came back a minute or so later. As they drove away, Williams handed appellant a small plastic bag with a straw in it. As soon as appellant looked at it, the police pounced.

After a hearing on October 14, 1988, appellant’s petition for return of his automobile was denied. On October 17, 1988, the same court issued an order granting the Commonwealth’s forfeiture petition. On May 1, 1989, these cases were consolidated by stipulation. Appellant appeals to this Court.

Appellant advances two arguments: (1) that there was insufficient evidence to find that the Commonwealth had met its burden of proving by a preponderance of the evidence that the owner of the automobile was connected with the unlawful use of the automobile; and (2) that the hearing court did not properly apply the facts to the applicable law.

I.

42 Pa.C.S.A. § 6801(a)(4)(ii) provides as follows:

(a) Forfeitures generally. — The following shall be subject to forfeiture to the Commonwealth and no property right shall exist in them:
(4) All conveyances, including aircraft, vehicles or vessels, which are used or are intended for use to transport, or in any manner facilitate the transportation, sale, receipt, possession or concealment of, property described in paragraph (1) or (2), except that:
(ii) no conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent, which absence of knowledge or consent must be reasonable under the circumstances presentedf.]

The hearing judge found that the automobile in question was unlawfully used in furtherance of a drug transaction and was directly involved in an illegal sale of controlled substances. Appellee is required to prove material allegations by a preponderance of the evidence. Commonwealth v. Tate, 371 Pa.Super. 611, 614, 538 A.2d 903, 905 (1988). We agree that there was sufficient evidence to prove by a preponderance of the evidence that the automobile in question was used to facilitate the transportation, sale, receipt, possession, and concealment of cocaine and marijuana.

II.

We disagree with appellant that the lower court improperly applied the applicable law to the facts. Testimony of police officer was sufficient to establish by preponderance of the evidence that defendant’s car was used to facilitate transportation and possession of a controlled substance and, thus, sustained forfeiture of the car. Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 552, 468 A.2d 1125, 1127 (1983). In the case sub judice, the police officer testified that he saw appellant hand cash to Williams, who then obtained several small packets from an unidentified male. While driving away, Williams handed a packet to appellant. We think that Judge McCrudden could reason that it was more probable than not that the automobile in question was used to facilitate a drag transaction and a sale of controlled substances.

Orders affirmed.

      . This paragraph includes marijuana and cocaine.

      . Judge McCrudden cited 35 Pa.S.A. § 780-128 as the law which was applicable to forfeitures. However, that section of the statutes was repealed effective June 30, 1988, and was replaced by 42 Pa.C.S.A. § 6801. A comparison of the applicable paragraphs of § 780-128 to § 6801(a)(4)(h) reveals that these paragraphs are substantially similar. For purposes of the instant case there is no difference between the two sections. Therefore, Judge McCrudden’s analysis of the law and the facts was proper.

      . Although the cocaine was not found on appellant’s person per se, it was found in an area that would indicate that it had been between appellant’s inner thighs, a very personal area of the body. Regardless of whether appellant was actually in possession of the controlled substances, he was in constructive possession. Possession can be proven by showing actual possession, i.e., a controlled substance found on appellant’s person, or by showing that appellant constructively possessed the controlled substances. Constructive possession has been defined as the ability to exercise a conscious dominion over the illegal substance: the power to control the contraband and the intent to exercise that control. Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983). An intent to maintain a conscious dominion may be inferred from the totality of the circumstances. Id. When we examine the totality of the circumstances in this case, we find that appellant stopped his car and his passenger got out and crossed the street to talk to an unidentified male. Passenger returned and appellant handed him cash. Passenger proceeded to buy small plastic packets from the other man. Passenger returned to the vehicle and as they drove away he handed a packet to appellant who examined it and placed it between his inner thighs. These facts certainly suggest that appellant intended to control the contraband. Also, in Commonwealth v. Cruz Ortega, 372 Pa.Super. 389, 539 A.2d 849 (1988), we found that appellant was in constructive possession of two ounces of cocaine which was under the front passenger seat of a rented automobile in which he was a passenger. Since we found constructive possession in Cruz Ortega, we have no trouble in finding that appellant in the case sub judice had constructive possession of cocaine that was on the driver’s seat of his car and had been between his inner thighs. o


author: TAMILIA, Judge:

text:
    566 A.2d 615
    COMMONWEALTH of Pennsylvania v. John Michael KARNS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 11, 1989.
    Filed Nov. 14, 1989.

      F. Walter Bloom, III, Oil City, for appellant.
    William G. Martin, Jr., Dist. Atty., Franklin, for Com., appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

On February 17, 1987, appellant John Michael Karns was charged with manufacture, delivery or possession of marijuana with the intent to manufacture or deliver. Earlier that day, state police, executing a search warrant, entered a dwelling in Venango County, conducted a search and seized approximately 208 marijuana plants growing in soil in the basement of the dwelling, as well as various paraphernalia and other items of evidence. After a nonjury trial on May 26, 1988, appellant was found guilty and sentenced to between 20 and 48 months imprisonment and fined $5,000. Post-verdict motions having been denied, appellant now appeals the judgment of sentence.

On appeal, appellant first argues the affidavit of probable cause of Trooper G.F. Kuffer does not, on its face, establish probable cause for the issuance of the search warrant. In determining probable cause, Pennsylvania has adopted the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and followed in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The test now utilized for analyzing warrants is as follows:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding] that probable cause existed.”

Commonwealth v. Melilli, 521 Pa. 405, 418-419, 555 A.2d 1254, 1261 (1989) (citation omitted), quoting Gates, supra at 237-38, 103 S.Ct. at 2332.

Without directly arguing as much, appellant would have us apply the pre-Gray two-prong test, independently analyzing both the veracity and basis of knowledge the confidential informants who supplied Trooper Kuffer with the information upon which he based his affidavit of probable cause. This we cannot do. Instead, applying the standards of Gates and Gray to the instant case, we find the affidavit established probable cause for the issuance of the search warrant.

Informant “A” supplied information to police on ten previous occasions which led to purchases of controlled substances by an undercover officer. Informant “B” had not given information to police in the past, however, he stated to police he had known appellant for two years and often purchased marijuana from him in that period. This information was corroborated by appellant’s prior arrest record. Informant “A” indicated appellant was living at the residence to be searched, a fact substantiated by independent police investigation of postal records. Informants “A” and “B” independently described a hydroponic system of marijuana growth at the residence. Although a true hydroponic system was not discovered during the search, literature concerning hydroponic growth and growing lights for such a system were found in the house (T.T. 5/26/88, pp. 39-40). Such independent information by one informant may corroborate the independent information of another, notwithstanding the fact the information is partially inaccurate or based on hearsay. Commonwealth v. Jones, 506 Pa. 262, 484 A.2d 1383 (1984); Commonwealth v. Rodriguez, 379 Pa.Super. 24, 549 A.2d 578 (1988). There is a low probability two independent sources would supply identical information if it were not probably accurate, and this probability produces the necessary reliability to establish probable cause.

Appellant also claims the failure of the affidavit to demonstrate the freshness of the information relied upon and contained therein rendered the search warrant invalid. The Supreme Court stated in Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986):

An issuing authority presented with the sworn testimony of an affiant may, absent obvious chronological inconsistencies, rely that the affiant is speaking of the present or the immediate past. “Staleness” when raised must not be determined by rigorous exactitude, but rather by the experience of reasonable men, cognizant that events in the real world, and more specifically criminal events, have a life of their own, in which hours and days are measured not by clocks and calendars, but rather by who will be watching, and when will the coast be clear.
Many police informants, particularly in drug related offenses, themselves often victims, are hard-pressed to know night from morning, and live a permanent dateless time. In such cases the issuing authority should try as close as possible to establish dates. However, where not possible, magistrates should use the experience of reasonable men under the circumstances to prevent offenders, loaded with poisonous contraband, from walking free because the evidence was “stale.” ... Common sense can determine what is a reasonable age under the circumstances.

Id., 513 Pa. at 28, 518 A.2d at 804.

In a similar case recently decided by this Court, Commonwealth v. Haggerty, et al., 388 Pa.Super. 67, 564 A.2d 1269 (1989), a search warrant was held to be valid despite an inadvertent error in omitting the date the alleged criminal activity was observed. There, we found the required specificity of time, place and alleged criminal activity contained within the four corners of the affidavit established the necessary elements to show probable cause. The large quantity of drugs and related weighing and bagging equipment pointed to a large operation conducted over a period of time and currently in progress. “Mere lapse of time between discovery of criminal activity and issuance of a search warrant will not necessarily dissipate probable cause and a showing that criminal activity is likely to have continued up to the time of issuance of a warrant will render otherwise stale information viable.” Id., 388 Pa.Superior Ct. at —, 564 A.2d at 1272.

In the instant case, the informants described an ongoing operation with a large number of growing marijuana plants. This information is supported by appellant’s prior arrest for manufacturing marijuana, his sales to Informant “B” over the prior two years, and police investigation of the residence and postal records and the statement of Informant “B”, appellant “will be harvesting the crop within the next month”, in the week before the search warrant was issued. Agreeing that “probable cause determinations must be based on common sense nontechnical analysis,” Gray, supra, 509 Pa. at 484, 503 A.2d at 925, we find the magistrate and the trial court acted properly in determining probable cause had been established, and we dismiss this claim.

Appellant next argues all the evidence seized pursuant to the execution of the search warrant is the fruit of an illegal, warrantless search by Informant “B”, acting at the direction of Trooper Kuffer, the affiant, who requested Informant “B” to provide specific proof that marijuana was being grown at the dwelling in question. Informant “B” then surreptitiously obtained a marijuana leaf from the residence and passed it on to Trooper Kuffer. In a case with facts similar to those instantly, this Court held:

[T]he state trooper’s admitted prior knowledge of the warrantless search, and acquiescence therein, was sufficient to constitute ratification of the informant’s illegal activity on behalf of the Commonwealth. Accordingly, the informant’s search must be deemed a governmental search for purposes of the Fourth Amendment and its attendant exclusionary rules. Therefore, since the sample contraband unlawfully seized by the informant obviously supplied the foundation upon which the subsequent search warrant was obtained, all of the evidence seized pursuant to the warrant must be suppressed as the “fruit of the poisonous tree.”

Commonwealth v. Borecky, 277 Pa.Super. 244, 251, 419 A.2d 753, 757 (1980) (citations omitted). So, too, we find the actions of Informant “B” and Trooper Kuffer to have been in violation of the fourth amendment prohibition against illegal searches and seizures. This, however, is not dispositive of the case sub judice.

As the suppression court noted,

Borecky is, however, distinguishable in that the illegal search in that case was the initial step of the investigation. Therefore that Court suppressed all the evidence as the fruits of the illegal search. Here, however, the primary investigation preceded the illegal search and seizure. This preceding investigation in no way violated [appellant’s] rights and should not be excluded on the grounds of subsequent illegal activity. Only that information acquired as a result of the illegal search should be excluded____ Despite elimination of this information, the total effect of the warrant is to give indicia of probable cause.

(Slip Op., Breene, J., 10/26/87, pp. 10-11.) We agree. The investigation proceeded on a valid basis which supported a warrant by suitable probable cause findings and is, therefore, untainted by the subsequent incidental illegality. In this instance, while we have not yet obtained ratification by the Pennsylvania Supreme Court, we believe the validity of the search warrant is sustainable pursuant to federal due process requirements under the good faith doctrine recently espoused by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). See Haggerty, supra.

Finally, appellant argues the trial court erred in receiving into testimony appellant’s oral statement because the corpus delicti had not been established, i.e., the court erred in finding appellant guilty of the manufacture, delivery or possession of marijuana, or possession with intent to deliver, as the weight of the evidence established that other individuals manufactured or possessed the same. In Pennsylvania, the corpus delicti rule of evidence precludes admission by the Commonwealth of a defendant’s confession or admission unless it offers independent evidence a crime in fact occurred. Commonwealth v. Fried, 382 Pa.Super. 156, 555 A.2d 119 (1989). We agree with the trial court the corpus delicti of possession with intent to deliver requires only proof, independent of appellant’s statement, of illegal possession by someone, although not necessarily appellant.

From the evidence presented at trial prior to the admission of appellant’s statement, it appears clear the Commonwealth established a crime was committed by someone. A quantity of marijuana much larger than would be consistent with personal use was found in the house, nurtured by growing lights and additional heat and water. Appellant was also found, along with his personal effects, occupying one of the two bedrooms at the time of the search. In addition to the plants, a screen of the type used for sorting marijuana and weighing scales were also found, as well as assorted baggies and small packages of marijuana and marijuana seeds. Therefore, we find the Commonwealth met its burden for introduction of appellant’s statement into evidence.

Judgment of sentence affirmed.

      . 35 Pa.C.S. § 780-113(a)(30).