author: HESTER, Judge:

text:
    464 A.2d 1299
    COMMONWEALTH of Pennsylvania ex rel. Katherine G. BOWERS v. David WIDRIG, Sr. Appeal of Katherine G. BOWERS.
    Superior Court of Pennsylvania.
    Argued April 13, 1983.
    Filed Aug. 12, 1983.

      David A. Scholl, Bethlehem, for appellant.
    David Widrig Sr., appellee, in propria persona.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   HESTER, Judge:

Once again, we are confronted with a final custody order which rests upon a woefully inadequate record. Due to the fact that the lower court failed to make a comprehensive and searching inquiry into the custodial fitness of the contestants, we are constrained to remand.

The factual and procedural history of this case must be highlighted in order to understand the need for a more thorough hearing. The parties were married in 1970 and divorced in 1972; however, they continued to live together on an intermittent basis following their divorce. Three children resulted from their relationship: David, born July 27, 1970, Cheryl, born March 27, 1972, and John, born April 2, 1973. At all times when the parties were not living together, the mother, appellant herein, had sole custody of the children until August 29, 1981.

On that date, appellant left the children in the care of a babysitter. It is unclear from the record, but apparently the children were removed by their father, appellee herein, to his household. He thereafter retained custody of the three children. Appellant instituted an action in habeas corpus on November 6, 1981, to regain custody of her children. However, on November 20, 1981, a consent order was entered which stipulated that the father was to retain custody of the children provided that the mother be permitted reasonable visitation rights.

On December 8, 1981, appellant filed a petition to modify the order of November 20, 1981, based upon David’s and Cheryl’s expressed desire to remain with her. On January 8, 1982, the court ordered home evaluation of both parties to be conducted by the Children and Youth Division of Northampton County, with interim custody of the three children remaining with appellee. Appellant was granted more liberal visitation rights on March 19, 1982, pending final resolution of the custody matter.

In the early morning hours of July 18, 1982, David and Cheryl, along with bags containing their clothing, were deposited on a street near their great-grandmother’s home by appellee’s girlfriend. Appellant, who was temporarily residing in Texas at that time, immediately returned and resumed caring for her two children. Custody of David and Cheryl has since remained with appellant and is not sought by appellee. However, appellee retained custody of their youngest child, John, and it is custody of this child which is the basis for this action.

On July 23, 1982, appellant filed a petition to modify the interim order which had previously awarded custody of the three children to appellee. At a conference on this matter, a Special Master recommended that temporary custody of John be awarded to appellant, however, appellee refused to agree to this suggestion. The temporary custody of this minor was the subject of a hearing on August 20, 1982, in the Court of Common Pleas in Northampton County. The hearing, scheduled on the Miscellaneous Hearing List, was limited to one hour. At the conclusion of the hearing, the trial judge announced that he would not transfer custody of John on a temporary basis, but would instead render a determination of final custody. On September 13, 1982, the court entered an Order awarding final custody of John to appellee. Appellant thereafter filed this timely appeal.

Appellant contends, and as we have indicated, we agree, that the record upon which the hearing judge rested his decision did not comply with the standards enunciated by this court time and again. We have consistently emphasized that it is incumbent upon the lower courts to conduct a penetrating and comprehensive inquiry in custody matters so as to insure a complete record upon which we can base our review. In re Custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982); Commonwealth ex rel. Montgomery v. Montgomery, 296 Pa.Super. 325, 442 A.2d 791 (1982); Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979); Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979). The character and fitness of the parties seeking custody, their respective homes, their ability to adequately care for the child, and their ability to financially provide for the child are all critical factors which must be explored and developed below. Gerald G. v. Theresa G., 284 Pa.Super. 498, 426 A.2d 157 (1981); Kessler v. Gregory, 271 Pa.Super. 121, 412 A.2d 605 (1979). In its penetrating inquiry, the hearing court should also consider objective testimony from disinterested impartial witnesses who can evaluate the relative environments which the parties could provide. Commonwealth ex rel. Michael R. and Kristin Leigh R. v. Robert R.R., 314 Pa.Super. 335, 460 A.2d 1167 (1983); Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980). Only by eliciting evidence on all of the above subjects will the hearing court be able to discharge its responsibility of securing the best interests of the child.

When the record is incomplete, we will remand the case to the court below so that the evidentiary facts may be supplemented. In re Wesley J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982); Commonwealth ex rel. Lettie H.W. v. Paul T.W., 281 Pa.Super. 262, 422 A.2d 159 (1980); Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa.Super. 249, 421 A.2d 706 (1980); In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978).

In the case at bar, the hearing judge listed fourteen findings of facts, some of which could only be documented by reference to pleadings or reports outside of the hearing. For example, the court found that appellant was receiving welfare benefits and that appellee and his fiancee earned a total of $100.00 to $150.00 weekly. Our review of the record uncovers no direct testimony as to appellant’s livelihood or her financial condition. Likewise, the record is barren of any evidence concerning appellee’s ability to provide for his son financially, except for one vague reference to part-time work. Yet the hearing judge concluded that the parties were on “equal footing” with regard to their financial ability to care for their son.

Similarly, the hearing judge observed that the home circumstances of the parties were comparable, yet no evidence was proffered about appellant’s new residence in Texas and the type of home environment she might provide for her son. Although appellee did describe his present environment, there was no evidence presented from any disinterested objective witnesses to verify his testimony.

The hearing judge based his decision to award custody of John to his father on several factors. First, he observed that appellant’s “leaving for Texas rather than pursuing the custody matter [did not indicate] a significant concern for John’s welfare.” We believe that the procedural history recited above connotes a desire by appellant to seek custody of her children. At no point was this action discontinued. Moreover, no testimony was adduced at the hearing on August 20, 1982, as to appellant’s motivation for her move to another state. Once again, the court’s conclusion that the mother’s actions did not bespeak a significant concern for her son did not rest upon a solid evidentiary foundation.

Another reason for the lower court’s decision was its consideration of appellant’s abuse of alcohol. However, the record only reveals allegations by appellee and his fiancee about appellant’s abuse and reference by John to his mother’s drinking. This problem was not substantiated by any expert testimony as to the actual existence of such abuse, the extent of her dependency, or the present effects of such use upon her child. Gerald G. v. Theresa G., supra. The record must thus be characterized as too inadequate to draw any conclusions regarding this aspect of appellant’s character and fitness as a custodian for her son.

In addition, the hearing court stressed the desirability of continuing the established relationship between John and his father. No apparent consideration was given to the fact that John resided with his mother from birth until August of 1981. Again, no extra-familial witnesses testified as to the existing relationship between appellant and her child. The hearing court did refer to a report by a caseworker for Berks County Children and Youth Services that appellee and his son enjoyed a good relationship. However, no caseworker testified at the hearing. Furthermore, the court relied upon a report prepared by Dauphin County Children and Youth Division which concluded that John was receiving adequate care and that he expressed an emphatic preference for living with his father.

This court has continually cautioned the lower court not to consider facts or evidence dehors the record. To employ information from investigative reports when the person who prepared the reports did not attend the hearing and was not subject to cross-examination constitutes reversible error and mandates a new hearing. Commonwealth ex rel. Michael R. and Kristen Leigh R. v. Robert R.R., supra; In re Long, 313 Pa.Super. 47, 459 A.2d 403 (1983); Palmer v. Tokarek, 279 Pa.Super. 458, 421 A.2d 289 (1980); Jones v. Floyd, supra; Rummel v. Rummel, 263 Pa.Super. 97, 397 A.2d 13 (1979); Wood v. Tucker, 231 Pa.Super. 461, 332 A.2d 191 (1974). Herein, the hearing judge committed error by considering evaluations contained in such reports when the caseworkers were not available for cross-examination.

For all of the above reasons, we cannot agree with the hearing judge’s assessment that he conducted a full custody hearing. Our ability to review this case is seriously impaired by a deficient record. Accordingly, we remand this case for additional hearings wherein a full and complete record will be developed. The lower court shall address itself to all relevant facts and shall allow the introduction of any supplemental information pertinent to John’s physical, intellectual, moral, and spiritual well-being. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972).

Finally, the hearing judge shall file an opinion containing a thorough and comprehensive analysis of the record, addressing both the testimony and the law. Therein, he should “indicate the grounds for selecting the particular findings, and the reasoning process by which [he] reached his ultimate conclusion.” Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 245, 447 A.2d 630, 633 (1982).

Order vacated and remanded for proceedings consistent with this opinion. Proceedings should be held with “utmost dispatch”. In re Interest of La Rue, 244 Pa.Super. 218, 235, 366 A.2d 1271, 1280 (1976). Either party subsequently aggrieved by the lower court’s ultimate order may then take a new appeal to this court. Jurisdiction is hereby relinquished.

      . It is unclear whether appellee was present during this incident. David and Cheryl testified at the hearing conducted on August 20, 1982, that their father did accompany them that evening and threatened them if they revealed his presence. Appellee testified that he was out of town when David and Cheryl were returned to their maternal relatives.

      . We recognize that the issue of the proper scope of review to be applied in custody cases is presently before our en banc court in the case of In re Donna Williams, 674 Pittsburgh, 1981, argued May 10, 1983; however, the exercise of either the abuse of discretion standard or the broad scope of review would not affect the result of this case.

      . The only witnesses who testified at the hearing were the parties themselves, appellee’s fiancee, and the three children, who were examined in open court.

      . In light of our decision to remand for further hearings, we will not address appellant’s alternate argument that the lower court erred in awarding custody of John to appellee.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    464 A.2d 1303
    Stephen CROOM, Appellant v. Milton SELIG and the Selig Foundation.
    Superior Court of Pennsylvania.
    Submitted March 3, 1982.
    Filed Aug. 19, 1983.

      J. Sheridan Toaltoan, Philadelphia, for appellant.
    James 0. Hausch, Philadelphia, for appellees.
    Before WICKERSHAM, WIEAND and HOFFMAN, JJ.
   WICKERSHAM, Judge:

This is an appeal from a lower court order that dismissed appellant Stephen Croom’s complaint and amended complaint and entered judgment against him. Croom’s pleadings allege the following facts.

In August of 1979 the parties entered into an agreement whereby a residence at 4560 North Bouvier Street in Philadelphia was deeded to Croom in exchange for his promise to pay $50 per month towards the $6,000 purchase price. In order to secure payment of the purchase price appellee Milton Selig obtained Croom’s signature on a deed conveying the residence to Colonial Securities Corporation, said deed to be filed in the event of a default by Croom. Subsequently, Croom discovered major defects in the residence which Milton Selig agreed to pay to repair. Selig, however, did not pay for the repairs and in response Croom stopped making his $50 monthly payments. Selig then filed the deed conveying the residence to Colonial Securities Corporation and the Selig Foundation. In July, 1980, Selig commenced a landlord-tenant action against Croom seeking possession of the residence.

Croom then filed his complaint in this action seeking to quiet title against “Milton Selig, President, Colonial Securities Corporation in his individual and official capacity.” Selig filed preliminary objections to the complaint, alleging that he was not a proper party as the complaint failed to state a cause of action against him, and demurring. Twenty-one days later Croom filed an amended complaint adding Colonial Securities Corporation and the Selig Foundation as defendants and containing additional counts alleging fraud and violations of the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, No. 387, as amended, 73 P.S. § 201-1 et seq. The defendants then filed a petition to dismiss Croom’s amended complaint, alleging that Croom had failed to file such amended complaint within ten days after service of the preliminary objections.

The lower court held that the amended complaint had not been timely filed and had not been filed with either leave of court or consent of opposing parties. In addition the court found that neither complaint stated a cause of action against Selig. The court dismissed both the original and amended complaints and entered judgment against Croom. This appeal followed.

Appellant Croom phrases the first question involved as:

Whether judgment could be entered solely on the basis of preliminary objections where there was [a] possible theory to [the] claims.

Brief for Appellant at 3.

In determining whether the lower court properly dismissed the complaint, we must take as true ‘every well

pleaded material fact set forth in the pleading ..., as well as the inferences reasonably deducible therefrom.’ Schott v. Westinghouse Electric Corp., 436 Pa. 279, 282, 259 A.2d 443, 445 (1969). Furthermore, we must bear in mind

the rule that preliminary objections should be sustained and a complaint dismissed only in cases which are clear and free from doubt. Legman v. Scranton School District, 432 Pa. 342, 247 A.2d 566 (1968); Todd v. Shelly, 384 Pa. 423, 120 A.2d 906 (1956); Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491 (1955). To sustain preliminary objections in the nature of a demurrer, it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff. Where any doubt exists as to whether or not the preliminary objections should be sustained, that doubt should be resolved by refusing to sustain the objections. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262 (1951).

Id., 436 Pa. at 291, 259 A.2d at 449.

Harkins v. Zamichieli, 266 Pa.Super. 401, 404-05, 405 A.2d 495, 497 (1979).

Croom’s original complaint in action to quiet title, after identifying the sole defendant as “Milton Selig, President, Colonial Securities Corporation in his individual and official capacity,” recites, inter alia, that:

12. In or about July, 1980, the defendant initiated a Landlord and Tenant Complaint against the defendant [sic], alleging non-payment of rent and seeking possession.

The lower court determined, after preliminary objections, that Croom had “failed to state a cause of action against Selig individually and, therefore, dismissed the complaint.” Lower ct. op. at 2.

Pa.R.C.P. No. 1061(b) provides that an action to quiet title may be brought:

(2) where an action of ejectment will not lie, to determine any right, lien, title or interest in the land or determine the validity or discharge of any document, obligation or deed affecting any right, lien, title or interest in land;

(Emphasis added).

Viewing Croom’s complaint in accordance with the principles recited in Harkins v. Zamichieli, supra, we cannot say that it does not ask for the determination of any right in the residence as against Milton Selig. Indeed, if we accept as true Croom’s allegation that Milton Selig has brought a landlord-tenant action against him regarding possession of the residence it would certainly indicate that Selig was contesting rights to the property. Although it is not clear from a reading of the complaint whether Milton Selig brought the landlord-tenant action personally or as an agent of another entity, the complaint does ask for a determination of Croom’s right to the residence as against Milton Selig; in so doing it states a cause of action to quiet title.

Appellant Croom phrases his second contention of error as:

Whether Pa.R.C.P. 1028(c) should be construed so as to deny a plaintiff the right to amend when he files an amended complaint more than ten days after preliminary objections.

Brief for Appellant at 3.

After Croom filed his original complaint Selig filed preliminary objections alleging that the complaint failed to state a cause of action against Selig individually. Croom then filed an amended complaint adding Colonial Securities and the Selig Foundation as defendants and also adding counts against all defendants for fraud and violations of the Unfair Trade Practices and Consumer Protection Law, supra. This amended complaint was not filed within ten days after service of the preliminary objections (see Pa.R.C.P. No. 1028(c)); nor was it filed with the consent of the opposing parties or the court (see Pa.R.C.P. No. 1033). Subsequently, Selig filed a document entitled “Petition to Dismiss Amended Complaint” wherein he requested that the court strike the amended complaint because of Croom’s failure to file said amended complaint within ten days of the filing of the preliminary objections or with the consent of the defendants or the court. Croom filed a response to Selig’s petition to dismiss the amended complaint wherein he requested the court permit him to file an amended complaint. The lower court then dismissed Croom’s original complaint for failing to state a cause of action against Selig individually and also dismissed Croom’s amended complaint because it was not filed in compliance with Rule, 1028(c) or 1033. In its opinion the lower court stated that in addition to the procedural difficulties surrounding the filing of the amended complaint, said amended complaint contained several other defects. Among these defects cited by the lower court were the failure of the amended complaint to state a cause of action against the Selig Foundation, the improper addition of a claim by a private party under the Unfair Trade Practices and Consumer Protection Law, supra (in the lower court’s opinion, such claims may only be brought by certain government officials) and a lack of specificity in the allegations of fraud. None of these defects were alleged by the defendants in their objections to the amended complaint. Only the procedural noncompliance concerning the filing of the amended complaint and the failure of the complaint and amended complaint to state a cause of action against Selig individually were advanced as reasons for dismissal by the defendants.

“The right to amend should not be withheld where there is some reasonable possibility that amendment can be accompliced successfully.” Otto v. American Mutual Insurance Co., 482 Pa. 202, 205, 393 A.2d 450, 451 (1978). Additionally, we note the extreme disfavor with which the termination of a lawsuit on a non-prejudicial procedural matter is held. Byard F. Brogan, Inc. v. Holmes Electric Protective Co., 501 Pa. 234, 460 A.2d 1093 (1983).

Croom did, as stated earlier in this opinion, state a cause of action against Selig in his original complaint. Croom’s amended complaint was dismissed pursuant to the defendants’ procedural objection concerning its filing. Croom did, however, undo the procedural net he was caught up in by subsequently requesting permission to file an amended complaint, which request was never directly addressed by the lower court.

A review of the record in this case requires us to state that Croom has shown some possibility that amendment could be accomplished successfully. Essentially, Croom alleges that Selig (and Colonial Securities and the Selig Foundation, both acting through Selig) deliberately deceived him into signing a deed conveying the property in question. Further, Croom alleges the “reconveyance upon default” scheme of Selig, Colonial Securities and the Selig Foundation was unfair, deceptive and an attempt to evade the proper procedures for foreclosure. Croom should have been permitted to file an amended complaint advancing his contentions concerning the quiet title and fraud counts.

Whether Croom has shown some reasonable possibility that he could state a cause of action under the Unfair Trade Practices and Consumer Protection Law, supra, is our next question. The lower court indicated that only the Attorney General of Pennsylvania or a district attorney could bring an action under the Unfair Trade Practices and Consumer Protection Law, therefore, Croom’s suit as a private person was patently improper. We note, however, that section 201-9.2 of the Law states:

Private actions

(a) Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act, may bring a private action, to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper.

73 P.S. § 201-9.2. (footnote omitted).

Yet whether a private action could be brought in the circumstances of this case remains to be established. The Pennsylvania Supreme Court has held that the underlying purpose of the Unfair Trade Practices and Consumer Protection Law is the prevention of fraud and it should be liberally construed to effect that purpose. Commonwealth by Creamer v. Monumental Properties, Inc., 459 Pa. 450, 459, 329 A.2d 812, 816 (1974). Section 201-9.2 provides a remedy for a private person victimized by unlawful acts concerning purchases or leases of goods or services and the negative implication created by the use of these terms could be viewed as pointing away from the conclusion that the Unfair Trade Practices and Consumer Protection Law creates a right for private parties to sue for fraudulent practices they suffer in buying realty. In Commonwealth v. Monumental Properties, supra, the court stated:

‘When American city dwellers both rich and poor, seek ‘shelter’ today, they seek a well known package of goods and services —a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance.’

459 Pa. at 467-68, 329 A.2d at 821, quoting Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 372, 428 F.2d 1071, 1074, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970).

Certainly if the transaction Croom alleges he was deceived on was a lease he could sue under the Unfair Trade Practices and Consumer Protection Law. On the record before us there is evidence that Croom’s transaction with the defendants could possibly be regarded as a lease, including the allegation in Croom’s complaint that Selig had initiated a landlord-tenant action against him for non-payment of

rent. Based on the record before us we are unable to state with certainty whether this transaction was a lease or a sale. If the transaction was a lease Croom would certainly have some reasonable chance of amending successfully and his request to amend should have been granted, completely aside from any other possible theory of recovery under the Unfair Trade Practices and Consumer Protection Law.

Order and judgment reversed and case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . We express no opinion as to whether the Unfair Trade Practices and Consumer Protection Law permits a private party to bring an action for fraudulent conduct he suffers in buying (as opposed to leasing) realty since it is not necessary for us to decide that issue here. We decide only that Croom has shown some reasonable possibility that he will be able to state causes of action under the counts he alleges.


author: ROWLEY, Judge: BROSKY, Judge,

text:
    464 A.2d 1307
    COMMONWEALTH of Pennsylvania v. Charles SIERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1982.
    Filed Aug. 19, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      John J. Poserina, Philadelphia, for appellant.
    Richard P. Myers, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   ROWLEY, Judge:

This is a direct appeal from an order denying appellant’s post-sentence petition to withdraw his pleas of guilty to three counts of robbery and one count of knowingly or intentionally possessing a controlled substance. Appellant pled guilty on July 28, 1978, and was sentenced on September 19, 1978, to concurrent terms of imprisonment of six to twenty years on each robbery charge. Appellant’s sentence on the possession count was suspended. Thereafter, appellant filed a motion to withdraw his guilty pleas along with a petition to reconsider his sentences on the robbery charges. Upon reconsideration, appellant’s sentences were modified and concurrent terms of imprisonment of six to twelve years were imposed. Appellant’s petition to withdraw his guilty pleas, however, was denied. This direct appeal followed.

In considering appellant’s appeal, we emphasize that there is an important distinction between pre-sentencing and post-sentencing attempts to withdraw a guilty plea. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Herberg, 306 Pa.Super. 245, 452 A.2d 536 (1982). “[A] showing of prejudice on the order of manifest injustice” is required before withdrawal of a guilty plea on a post-sentence petition can be justified. Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). This substantial burden of proof is imposed because of the recognition that a plea and its subsequent withdrawal may be used by the accused as a sentence-testing device. Id., 450 Pa. at 489, 301 A.2d at 594. Consequently, before a post-sentence petition to withdraw a guilty plea will be granted under the “manifest injustice” standard, some demonstration must be made that the plea was involuntary. Commonwealth v. Bhillips, 475 Pa. 427, 380 A.2d 1210 (1977).

Appellant states the issues on appeal as follows:

I. Should defendant [sic] be permitted to withdraw his guilty plea[s]?
II. Is the system of assigning Judges to hear criminal cases in Philadelphia, unconstitutional in its application, by coercing defendants to Plea [sic] Guilty?
III. Did the manner in which the Defender Association of Philadelphia assigns [sic] various attorneys to represent appellant, prevent him from receiving adequate representation^]
IV. Did the trial courts [sic] refusal to allow appellant to recover the sum of $500.00 which was seized from him prevent him from securing counsel of his choice?

The first specific contention of error which the appellant raises is that the system of assigning judges to hear criminal cases in the Court of Common Pleas of Philadelphia County is unconstitutional in that it coerces criminal defendants to engage in plea bargaining or to plead guilty in the hope of receiving a more lenient sentencing judge than if he goes to trial before a jury. In Philadelphia County, there are approximately fifteen (15) judges who are assigned to the division which hears major criminal cases. Of the fifteen (15) judges thus assigned, three (3) or four (4) hear non-jury or waiver cases and guilty pleas, while the other twelve (12) or eleven (11) are assigned to the task of hearing jury trials. Those judges who hear only non-jury or waiver cases and pleas are referred to, in the common vernacular of Philadelphia County, as “waiver” judges, while those judges who hear only jury trials are referred to, quite logically, as “jury” judges. Whether a judge in the major criminal division of Philadelphia County receives the designation of “waiver” judge or “jury” judge is not determined by any administrative edict, but rather results from that particular judge’s reputation within the local bar and the criminal community. Criminal defendants and defense attorneys occasionally refuse to waive jury trials or present pleas in front of certain judges who have the reputation of giving “stiff” sentences. As a consequence, those judges reputed to be “tough” judges are forced into the role of “jury” judges, while the judges with more “lenient” sentencing reputations become, by attrition, “waiver” judges.

Although these roles of “waiver” judge and “jury” judge are not administratively mandated, the judges of the criminal division of Philadelphia County have adapted the case assignment system to accommodate for their existence in order to insure an effective caseflow. Therefore, if a case is originally sent to a “waiver” judge as a non-jury trial or as a guilty plea, and the defendant involved subsequently decides to exercise his/her right to a jury trial, the case will be returned to the criminal case calendar room for reassignment to one of the “jury” judges. This is done in order not to disrupt the schedule of the “waiver” judge which, typically, will already be filled with other non-jury trials or guilty pleas. Appellant contends that it is this practice of reassignment adopted by the judges of the criminal division of Philadelphia County which coerces criminal defendants to engage in plea bargaining or to plead guilty.

Although plea bargaining has been common practice in criminal cases for many decades, only in relatively recent times has it gained respectability in the criminal justice system, and has now become so commonplace that the overwhelming majority of criminal cases are disposed of in this manner. It is clear that guilty pleas entered pursuant to bargaining must be entirely voluntary and that it is a violation of due process where such a plea is obtained by coercion or by deception or by a trick. An-not., 10 A.L.R.4th 689, 692 (1981) (citations omitted).

Nevertheless, the United States Supreme Court has stated that there is no per se rule against encouraging guilty pleas or engaging in plea bargaining. Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978). In addition, judges are not forbidden to extend a proper degree of leniency in return for guilty pleas or to make due allowance for plea bargains in sentencing decisions. Id. Our society accepts these mechanisms as beneficial to the implementation of the criminal justice system. Therefore, the fact that the criminal case assignment process employed by the judges of the criminal division of Philadelphia County may encourage criminal defendants to plead guilty, does not, of itself, make such encouragement an undue burden on the exercise of their constitutional right to a jury trial so as to invalidate their guilty pleas. But see Abrams, Systemic Coercion: Unconstitutional Conditions In the Criminal Law, 72 J.CRIM.L. 128 (1981); Folberg, The “Bargained For” Guilty Plea—An Evaluation, 4 CRIM.L.BULL. 201 (1968). However, while inadvertent encouragement may be permissible, deliberate participation by the judiciary in the plea bargaining process has been held to be improper in Pennsylvania. Commonwealth v. Evans, 434 Pa. 52, 252 A.2d 689 (1969); Compare People v. Fox, 38 Ill.App.3d 257, 345 N.E.2d 139 (1975). Even so, before a plea bargain or a guilty plea may be categorized as involuntary by virtue of improper judicial conduct, the participation by the judiciary must be found to be “active” in nature. Commonwealth v. Palmer, 463 Pa. 26, 342 A.2d 387 (1975); Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973).

In this case, there is no evidence of record, nor does appellant advance such a claim, that the case assignment system employed by the criminal division of Philadelphia County was adopted with the avowed purpose of soliciting plea bargains or guilty pleas from criminal defendants. Nor is there a claim that the so-called “waiver” or “jury” judges actively seek out their respective designations with the deliberate purpose of coercing defendants in the criminal system of Philadelphia County to plea bargain or to enter pleas of guilty. On the contrary, such differences as do exist between these jurists, exist as a result of the disparity in the individual beliefs and principles held by them concerning the purpose of the sentencing process in our criminal justice system. The labels they receive are merely a reflection of their honestly and sincerely held sentencing philosophies. Consequently, lacking any evidence of “active” participation by the judiciary in the plea bargaining process in Philadelphia County, we do not find the mandate of Evans, supra, to be applicable.

Disappointed expectations alone do not vitiate guilty pleas, Commonwealth v. Sanutti, supra. Likewise, a desire to limit one’s penalty by pleading guilty is not a ground on which to base a claim of involuntariness. Commonwealth v. Bhillips, supra. Because appellant has failed to demonstrate in what manner his plea was not voluntarily given, his first contention of error must fail.

Appellant’s second specific contention of error is that he was deprived of adequate representation by the manner in which the public defender’s office of Philadelphia County assigned various attorneys to represent him during the course of his case. Appellant does not argue that any particular attorney assigned to his case from the public defender’s office was ineffective or provided inadequate counsel, rather he objects in a general fashion to the method employed by the public defender’s office of Philadelphia County of assigning different attorneys to handle the various aspects of a criminal defendant’s case. It is well acknowledged in our law that, while a criminal defendant does have a right to counsel, he does not have the right to select a particular attorney to handle his case. Commonwealth v. Coleman, 482 Pa. 581, 394 A.2d 474 (1978). The test is whether adequate representation was provided the appellant. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). The record in the case at hand is devoid of any evidence showing less than adequate representation at any stage of appellant’s case. Appellant’s second issue of error is, therefore, without merit.

Appellant’s third contention of error is that the trial court’s refusal to allow him to recover the $500.00 seized from him at the time of his arrest prevented him from securing private counsel of his choice. Assuming that appellant could have found an attorney willing to represent him on these charges for the sum of $500.00, appellant filed no motion under Pa.R.Crim.P. 324 for the return of his property. Even if appellant had filed such a motion, however, the evidence on the record supports a finding that the money was derivative contraband. See Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976). Appellant’s final issue of error is likewise without merit.

Judgment of sentence affirmed.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I join the majority opinion and write to comment on the second issue.

This issue raised the question whether appellant was afforded ineffective assistance of counsel by virtue of the handling of different phases of his cases by different Public Defenders. I repeat that I join the majority’s treatment of this issue. Nonetheless, it raises a troubling question.

Since appellant does not allege any specific instances of ineffectiveness on the part of any of the individual counsel who represented him, his challenge is to the system per se of assigning counsel to handle particular phases of a case rather than handling a case from beginning to end. While a certain degree of facility would develop, in such a horizontal assignment of counsel’s duties, some disadvantages are also apparent. Chief among these disadvantages is a lack of in-depth knowledge of the facts of any given case counsel is handling a phase of. A vertical assignment of cases would obviously increase counsel’s familiarity with the facts of a case and consequently greatly aid counsel’s handling of a case.

Whether this particular disadvantage is offset by the advantage of specialized expertise is not presented to us in a manner which would allow us to resolve it. Appellant did not present to the court below, (thus creating a record for our review), data relating to the general quality of representation resulting from the system he challenges. Such data might have taken a variety of forms, including—but not limited to—studies in criminology or jurisprudence on the subject, testimony from qualified experts and case law from other jurisdictions. None of this was presented to the court below or is included in the record before us. Consequently, we are unable to treat the question in its broader context. I write only to bring attention to what may prove to be a serious challenge to the means of providing indigent defendants with counsel.

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), guaranteed, as a federal constitutional right, the assistance of counsel in state-prosecuted criminal cases. It remains for a future case to determine whether the challenged counsel assignment procedure mutes Gideon’s trumpet.

      . Appellant pled guilty to three separate bank robberies. During one of the robberies, appellant was photographed by bank security equipment. A police officer recognized appellant from this photograph and arrested him. Appellant was later identified by tellers from the three banks at a station house line-up.

      . In the body of appellant's brief, an additional argument is made that one of the factors which rendered appellant’s plea involuntary, in addition to those outlined below, was the Commonwealth’s demand for a jury trial. Appellant argues that the possibility of a non-jury trial was foreclosed to him by virtue of the Commonwealth’s demand, and that, as a consequence, the only alternatives open to him were either to plead guilty or to proceed with a jury trial. Appellant maintains that, because his alternatives were thus circumscribed, he was "mentally” coerced into pleading guilty in order to avoid the heavier sentence he anticipated would be forthcoming subsequent to a jury trial. Recently in Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982), our Supreme Court held that the Commonwealth has no right to a jury trial and that 42 Pa.C.S. § 5104(c) which provided for such a right was unconstitutional. The Supreme Court in Sorrell further held that a trial court’s denial of an appellant’s request for a non-jury trial solely in reliance on 42 Pa.C.S. § 5104(c) would be erroneous and in contradiction of Pa.R.Crim.P. 1101. In this case, all the events subject to review took place prior to the holding in Sorrell. However, even if Sorrell were applicable, appellant does not aver that he ever made a request for a non-jury trial which was later denied by the trial court on the basis of 42 Pa.C.S. § 5104(c), or for any other reason. Appellant’s only argument is that he believed that the possibility of a non-jury trial was foreclosed to him by virtue of the Commonwealth's demand for a jury trial, and that that belief caused him to plead guilty in order to avoid a more stringent sanction. We find appellant’s argument to be without merit. In essence, appellant is averring that he pled guilty in order to avoid a possibly heavier sentence. As we note in our discussion, infra, the desire to limit one’s penalty is not a ground on which to base an involuntary guilty plea claim. Commonwealth v. Bhillips, 475 Pa. 427, 380 A.2d 1210 (1977).

      . Appellant makes no contention that the judges of Philadelphia County impose illegal sentences or sentences which violate the statutory maximum. He concedes that the sentences which have been imposed are permissible, and that the judges of Philadelphia County have not abused their discretion in the past when sentencing. What effect our recently enacted sentencing guidelines would have on appellant's arguments is not clear. It is questionable, however, under the new sentencing guidelines whether the categories of "tough” and “lenient” sentencing judges will remain viable.

      . One particular phase where this arrangement could result in specialized expertise would be suppression hearings.

      . Nor, more importantly,, was it so presented to the court below.
      There are, no doubt, a number of other advantages and disadvantages of the horizontal handling of cases. They are not even argued.

      . If the system itself were found on the basis of such a record to generally provide ineffective assistance of counsel, then it would follow that cases under the system would, at the least, have a presumption of ineffective assistance of counsel.


author: WIEAND, Judge:

text:
    464 A.2d 1313
    Norman D. DAY and Nancy V. Day, his wife, Appellants, v. VOLKSWAGENWERK AKTIENGESELLSCHAFT and Volkswagen of America, Inc. and Volkswagen Atlantic, Inc. and Towne Volkswagen, Inc., and Frank Paparo.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1983.
    Filed Aug. 19, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      Carl N. Martin, II, Philadelphia, for appellants.
    Stephen S. Phillips, Philadelphia, for Aktiengesellschaft, appellee.
    Charles W. Craven, Philadelphia, for Volkswagen Atlantic, appellee.
    Donald J. Sweeney, Philadelphia, for Towne, appellee.
    Before BROSKY, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Does a state court action against a distributor and a retailer of an allegedly defective motor vehicle survive after an action in a federal court against the manufacturer and the importer has resulted in a final determination that the vehicle was not defective? The trial court held that the state court action was barred by res judicata and collateral estoppel and entered summary judgment in favor of the distributor and retailer. We affirm. Further proceedings in the state court action are barred by principles of collateral estoppel.

Mrs. Nancy V. Day was seriously injured when the Volkswagen van which she was driving through an intersection in the City of Philadelphia was struck by a vehicle whose driver had disregarded a red traffic signal. After settling claims against the driver of the offending vehicle, Norman and Nancy Day filed simultaneous actions in the United States District Court for the Eastern District of Pennsylvania and the Court of Common Pleas of Philadelphia County alleging that the Volkswagen van had been dangerously defective because not equipped with a harness type seat belt, a condition which was alleged to have contributed to Mrs. Day’s injuries.

The 1968 Volkswagen Type II Van driven by Mrs. Day at the time of the accident had been manufactured and equipped by Volkswagenwerk Aktiengesellschaft (VWAG) in West Germany. It was imported iii the United States by Volkswagen of America, Inc. (VWOA), a New Jersey corporation. At point of entry, title to the vehicle was transferred to Volkswagen Atlantic, Inc. (VW Atlantic), a Delaware corporation and the regional distributor servicing dealers in Southeastern Pennsylvania. The retailer from whom the Days purchased the van was Towne Volkswagen, Inc. (Towne), a Pennsylvania corporation doing business in Philadelphia.

In the complaint filed in the federal court the named defendants were VWAG, the manufacturer of the van, and VWOA, the importer. The claim was based upon negligence, breach of express and implied warranties and strict liability under Section 402A of the Restatement (Second) of Torts for an alleged defect in the design, manufacture and sale of the van without a shoulder restraint or harness type seat belt. The complaint in the Court of Common Pleas of Philadelphia contained identical causes of action and named as defendants VW Atlantic, the regional distributor, and Towne, the retailer who had sold the vehicle to the Days, as well as VWAG and VWOA.

The federal action was tried first and resulted in a verdict in favor of VWAG and VWOA. The jury which tried the case, in response to written interrogatories, found specifically that the van had not been defective and that neither VWAG nor VWOA had been negligent in failing to install shoulder restraints. Moreover, because the absence of shoulder restraints was obvious to a buyer, the court held as a matter of law that there had been no duty to warn. A motion for new trial by the Days was denied by the trial court, and its judgment was affirmed by the Court of Appeals for the Third Circuit. See: Day v. Volkswagenwerk Aktiengesellschaft, 451 F.Supp. 4 (E.D.Pa.1977), aff'd, 578 F.2d 1373 (3rd Cir.1978). In the Court of Appeals, appellants argued, inter alia, that the trial court had erred in excluding evidence that “the advertising campaign of Volkswagen over-sold it from the standpoint of safety and minimized its dangers to conservative-type purchasers such as the Days, who were interested in economical, safe transportation____” (Appellants’ brief in the U.S. Court of Appeals, No. 77-2389, pg. 10).

In the state court, all defendants moved for summary judgment on grounds of res judicata and collateral estoppel. On September 19, 1980, the motions of VWAG and VWOA were granted. Summary judgments were entered in their favor, and no appeals were taken from such judgments. The court declined to enter summary judgment in favor of YW Atlantic and Towne, however, but expressly provided that its action was without prejudice to a reconsideration after discovery had been completed. After discovery had been completed, the motions of VW Atlantic and Towne were renewed, and the trial court granted summary judgment in their favor. It is this judgment from which the instant appeal has been taken and which now compels our attention and review.

“The law on summary judgment is well-settled. ‘Summary judgment is made available by Pa.R.C.P. 1035 ... when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. This severe disposition should only be granted in cases where the right is clear and free from doubt. To determine the absence of a genuine issue of fact, the court must take the view of the evidence most favorable to the non-moving party, and any doubts must be resolved against the entry of the judgment.’ ” Acker v. Palena, 260 Pa.Super. 214, 218-219, 393 A.2d 1230, 1232 (1978) quoting Husak v. Berkel, Inc., 234 Pa.Super. 452, 458, 341 A.2d 174, 177 (1975). Accord: Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 469 (1979); Wilson v. Central Penn Industries, Inc., 306 Pa.Super. 146, 148, 452 A.2d 257, 258 (1982); Boothman v. Prudential Property & Casualty Insurance Co., 304 Pa.Super. 137, 139-40, 450 A.2d 139, 140 (1982); McNair v. Weikers, 300 Pa.Super. 379, 388-389, 446 A.2d 905, 909-910 (1982); Taylor v. Tukanowicz, 290 Pa.Super. 581, 586, 435 A.2d 181, 183 (1981). The burden rests upon the moving party to demonstrate clearly that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., supra, 488 Pa. at 204, 412 A.2d at 468-469; McNair v. Weikers, supra, 300 Pa.Super. at 399, 446 A.2d at 910; Aimco Imports, Ltd. v. Industrial Valley Bank & Trust Co., 291 Pa.Super. 233, 236, 435 A.2d 884, 885 (1981). Summary judgment is properly granted on grounds of res judicata and/or collateral estoppel if there is no genuine issue of material fact and the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits disclose that the moving party is entitled to judgment as a matter of law. See: Brown v. Cooney, 296 Pa.Super. 117, 442 A.2d 324 (1982); Exner v. Exner, 268 Pa.Super. 253, 407 A.2d 1342 (1979); Haines Industries, Inc. v. City of Allentown, 237 Pa.Super. 188, 355 A.2d 588 (1975); Davis v. O’Brien, 230 Pa.Super. 449, 326 A.2d 511 (1974) allocatur denied December 30, 1974.

The doctrine of res judicata has been judicially created. It reflects the refusal of the law to tolerate a multiplicity of litigation. It holds that “an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” 46 Am.Jur.2d, Judgments § 394 at 558-559 (footnotes omitted). “ ‘The original cause is “barred” by a judgment for the defendant and “merged” in one for the plaintiff. [The doctrine] forbid[s] relitigation of matters actually decided, on the ground that there is no assurance the second decision will be more correct than the first. Moreover, a party is commonly forbidden to raise issues that could have been litigated in the first suit but were not, because of the desirability of settling the entire controversy in a single proceeding.’ ” In re Estate of R.L.L., 487 Pa. 223, 228 n. 7, 409 A.2d 321, 323 n. 7 (1979), quoting Cramton, Currie and Kay, Cases on Conflicts of Laws 2d Ed. ABC, p. 655 (1975). See also: Haring v. Prosise, 462 U.S. 306, — n. 10, 103 S.Ct. 2368, 2375 n. 10, 76 L.Ed.2d 595, 606 n. 10 (1983). For the doctrine of res judicata to prevail there must be a concurrence of four conditions: (1) identity of issues, (2) identity of causes of action, (3) identity of persons and parties to the action, and (4) identity of the quality or capacity of the parties suing or sued. Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975). Accord: Duquesne Slag Products Company v. Lench, 490 Pa. 102, 105, 415 A.2d 53, 55 (1980); In re Estate of R.L.L., supra, 487 Pa. at 228 n. 7, 409 A.2d at 323 n. 7; Keystone Building Corp. v. Lincoln Savings & Loan Assn., 468 Pa. 85, 91, 360 A.2d 191, 194 (1976); Schubach v. Silver, 461 Pa. 366, 375, 336 A.2d 328, 332 (1975); Stevenson v. Silverman, 417 Pa. 187, 190, 208 A.2d 786, 787-788 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965); Dunham v. Temple University, 288 Pa.Super. 522, 534, 432 A.2d 993, 999 (1981); Notoro v. Hyer Estate, 239 Pa.Super. 10, 14, 361 A.2d 766, 768 (1976). “The doctrine of res judicata applies to and is binding, not only on actual parties to the litigation, but also to those who are in privity with them. A final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the same parties or their privies on the same cause of action.” Stevenson v. Silverman, supra, 417 Pa. at 190, 208 A.2d at 788 (citations omitted) (emphasis in original). Accord: Haefner v. County of Lancaster, 543 F.Supp. 264, 265 (E.D.Pa.1982); Keystone Building Corp. v. Lincoln Savings & Loan Assn., supra, 468 Pa. at 91, 360 A.2d at 194; Goldstein v. Ahrens, 379 Pa. 330, 334, 108 A.2d 693, 695 (1954); Lebeau v. Lebeau, 258 Pa.Super. 519, 525, 393 A.2d 480, 482 (1978); Thompson v. Karastan Rug Mills, 228 Pa.Super. 260, 266, 323 A.2d 341, 344 (1974).

To determine whether the state action against the distributor and retailer was barred by res judicata we must determine whether these parties were in privity with the manufacturer. If not, the state court action may proceed so long as it is based upon a cause of action different than that asserted against the manufacturer in the federal court action.

Generally, there is no prevailing definition of “privity” which can be applied automatically to all cases. Privity for purposes of res judicata is not established by the mere fact that persons may be interested in the same question or in proving the same facts. The Restatement (Second) of Judgments applies principles of res judicata to different parties where one is vicariously responsible for the conduct of another, such as principal and agent or master and servant. ' Restatement (Second) of Judgments § 51. In such cases there is, in an important sense, a single claim. “The same loss is involved, usually the same measure of damages, and the same or nearly identical issues of fact and law. The substantive legal basis for vicarious responsibility rests largely on the notion that the injured person should have the additional security for recovery’ of his loss that is represented in imposition of liability on a person other than the primary obligor. The optional additional security thus afforded by rules of vicarious responsibility should not, however, afford the injured person a further option to litigate successively the issues upon which his claim to redress is founded. He is ordinarily in a position to sue both obligors in the same action and may justly be expected to do so. Beyond this, if he is allowed to sue the second obligor after having lost an action against the first, two anomalous consequences may result. First, he may be given recovery for conduct that has already been determined not to be wrongful. Second, if the first action is unsuccessfully maintained against the primary obligor, and the second successfully maintained against the person vicariously responsible, it could happen that the latter could obtain indemnity from the primary obligor. The result would be that the primary obligor would have to pay indirectly an obligation from which he had been directly exonerated.” Restatement (Second) of Judgments § 51, comment b at 50-51.

The Texas Court of Civil Appeals has held that “[pjrivity connotes those so connected in law with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right.” Olivarez v. Broadway Hardware, Inc., 564 S.W.2d 195, 197 (Tex.Civ.App.1978). It concluded that the relationship between the retailer and manufacturer of a pellet gun was not sufficient to meet the technical requirements of privity for purposes of res judicata. It also concluded, however, that principles of collateral estoppel, which is issue oriented rather than party oriented, did bar an action against the retailer of the gun after a jury in the first action against the manufacturer had found that the gun was not defective.

Other jurisdictions which have considered the relationship between manufacturer, distributor and retailer in products liability cases have also eschewed the language of res judicata in favor of holdings which rely upon principles of collateral estoppel to bar successive actions. See: Brown v. R.D. Werner Co., 428 F.2d 375 (1st Cir.1970) (collateral estoppel bars federal suit against manufacturer where the same issues have been litigated in state court action against retailer); Cantrell v. Burnett & Henderson Co., 187 Tenn. 552, 216 S.W.2d 307 (1948) (collateral estoppel bars suit against manufacturer where same issues have been litigated in prior action against retailer); Meyer v. Droms, 68 App.Div.2d 942, 414 N.Y.S.2d 67 (1979) (collateral estoppel bars relitigation of issues in suit against distributor where issues were determined by entry of summary judgment in favor of manufacturer in prior action); Billman v. Nova Products, Inc., 328 So.2d 244 (Fla.App. 1976) (collateral estoppel bars suit against manufacturer where the same issues have been litigated in prior action against retailer). See also: Anno., Judgment in Action Against Seller or Supplier of Product as Res Judicata in Action Against Manufacturer for Injury From Defective Product, or Vice Versa, 34 A.L.R.3d 518 (1970).

In Thompson v. Karastan Rug Mills, supra, however, this Court held that a manufacturer of carpeting and the retail carpet outlet which sold the carpeting were in privity for purposes of applying the doctrine of res judicata. It held that both res judicata and collateral estoppel were applicable to bar a separate action against the manufacturer for defective carpeting after a prior action between retailer and purchaser had resulted in a determination that the carpeting was not defective.

Whether successive actions are barred by res judicata becomes important if an unsuccessful action against the manufacturer is followed by an action against the retailer in which the consumer seeks to raise issues not raised in the prior action. Res judicata bars not only those issues actually raised but also those issues which could have been litigated in the first action. See: In re Estate of R.L.L., supra; McCarthy v. Township of McCandless, 1 Pa. Cmwlth. 611, 617, 300 A.2d 815, 819 (1973). See also: Restatement (Second) of Judgments §§ 24, 25. The instant action, however, sought to raise precisely the same issues as had been determined adversely to appellants in the prior action against the manufacturer. Therefore, we need not resolve in this appeal the apparent discord between the decision in Thompson v. Karastan Rug Mills, supra, and the decisions of other jurisdictions which have eschewed, res judicata in favor of collateral estoppel in successive products liability cases between retailer and manufacturer. Instead, we pass to a consideration of principles of collateral estoppel which are dispositive and upon which our decision will be based.

The doctrine of collateral estoppel is a broader concept than res judicata. It operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit. See: Keystone Building Corp. v. Lincoln Savings & Loan Assn., supra, 468 Pa. at 92 n. 7, 360 A.2d at 195 n. 7; Schubach v. Silver, supra, 461 Pa. at 377, 336 A.2d at 333; Oak Lane Shopping Center, Inc. v. Flame, 264 Pa.Super. 9, 14, 398 A.2d 721, 724 (1979); Lebeau v. Lebeau, supra, 258 Pa.Super. at 525, 393 A.2d at 482-483; Davis v. O'Brien, supra, 230 Pa.Super. at 451, 326 A.2d at 512; Thompson v. Karastan Rug Mills, supra, 228 Pa.Super. at 264, 323 A.2d at 343-344; Restatement (Second) of Judgments § 27. Unlike res judicata, there is no requirement that there be an identity of parties between the two actions to invoke the bar. “Parties to a subsequent action need not be the same as those in the prior suit in order to raise the question of collateral estoppel. Collateral estoppel may be used as either ‘a sword or a shield’ by a stranger to the [prior] action, as long as the party against whom the defense is invoked is the same.” Thompson v. Karastan Rug Mills, supra, 228 Pa.Superior Ct. at 265, 323 A.2d at 344. See also: Davis v. O’Brien, supra, 230 Pa.Super. at 451 & n. 2, 326 A.2d at 512 & n. 2. “ ‘[A] plea of collateral estoppel is valid if, 1) the issue decided in the prior adjudication was identical with the one presented in the later action, 2) there was a final judgment on the merits, 3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and 4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in the question in a prior action.’ ” In re Estate of R.L.L., supra, 487 Pa. at 228 n. 8, 409 A.2d at 323 n. 8, quoting Safeguard Mutual Insurance Company v. Williams, supra, 463 Pa. at 574, 345 A.2d at 668. See also: Oak Lane Shopping Center, Inc. v. Flame, supra, 264 Pa.Super. at 14-15, 398 A.2d at 724; Lebeau v. Lebeau, supra, 258 Pa.Super. at 525-526, 393 A.2d at 483; Thompson v. Karastan Rug Mills, supra, 228 Pa.Super. at 265, 323 A.2d at 344.

The question of whether the van was defective and the defendants strictly liable under 402A of the Restatement (Second) of Torts because of the absence of shoulder restraints was fully and finally litigated in the federal action. Therefore, it may not be relitigated in the state court. The issue of possible negligence for failing to install shoulder harnesses in the van was also determined adversely to the appellants after a full and fair opportunity to litigate the issue and is similarly not available to appellants in this action. Appellants argue that the issue of failure to warn under 402A of the Restatement (Second) of Torts and Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), was not “litigated” in the federal action. However, it is clear that this argument is not well founded. The federal court ruled as a matter of law that there was no liability for a failure to warn. The absence of shoulder restraints, said the federal trial court, “was both obvious to the naked eye of anyone who made even a cursory inspection of the vehicle, and was specifically referred to in the owner’s manual.” Day v. Volkswagenwerk Aktiengesellschaft, supra at 6. The federal trial court also held as a matter of law that “the danger inherent in riding in the front seat of a rear-engine type vehicle [was] not a latent limitation requiring a warning of the risk involved.” Id. at 6. Cf. Greiner v. Volkswagenwerk Aktiengesellschaft, 540 F.2d 85 (3rd Cir.1976), on remand, 429 F.Supp. 495 (E.D.Pa. 1977). This issue was also raised in post verdict motions and in the brief filed by appellants in the Court of Appeals. Thus, the issue regarding failure to warn has clearly been litigated. It has been determined finally against appellants. Contrary to appellants’ argument, it was not necessary in order to be “litigated” that the issues have been determined by the jury. See and compare: Holt Hauling and Warehousing Systems, Inc. v. Rapistan, Inc., 448 F.Supp. 991 (E.D.Pa.1978); Oak Lane Shopping Center, Inc. v. Flame, supra, 264 Pa.Super. at 14-15, 398 A.2d at 724; Brower v. Berlo Vending Co., 254 Pa.Super. 402, 406, 386 A.2d 11, 13 (1978); Haines Industries, Inc. v. City of Allentown, supra; Davis v. O’Brien, supra.

Appellants argue further, in their effort to avoid the application of collateral estoppel, that they wish to assert in this action an independent cause of action, involving a separate issue, against Towne. This cause, it is argued, is based upon an averment that the salesperson “overpromoted” a defective vehicle. There is no merit in this contention. That the vehicle was not defective has been finally determined. Moreover, that appellants attempted to assert the same or a similar contention in the federal action is evidenced by the brief which they filed in the Court of Appeals. Most significantly, discovery depositions in the instant action disclose, without any dispute, that Norman Day, because of prior experience with a Volkswagen van, had complained to the salesman about (1) insufficient engine power; (2) instability in cross-winds; and (3) passenger compartment noise levels. The salesman represented that the 1968 model had increased engine power, greater stability, and lower noise levels. Appellants concede that they did not inquire about the adequacy of the existing seat belts or the “crashworthiness” of the vehicle and that the salesman made no representations regarding these qualities of the van. Appellants have not alleged and do not contend that the salesman misrepresented the vehicle to them. Instead, they rely upon a miscomprehension of the decision in Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971).

The decision in Incollingo did not create a separate cause of action for “overpromotion.” There, the issue was whether printed warnings attached by the manufacturer to the containers in which Chloromycetin was sold, were adequate or whether they had been, in effect, cancelled out by a very active advertising campaign conducted primarily through detail men who minimized the danger of the drug. The Supreme Court conceded that the issue was close but held that a jury could find “in the setting of this case” that the printed warnings had been inadequate. See also: Baldino v. Castagna, 308 Pa.Super. 506, 454 A.2d 1012 (1982).

In the instant case, it has been finally determined in the federal action that the Volkswagen van was not dangerously defective and that an absence of warnings regarding the absence of shoulder restraints did not render the van defective.

It is clear, therefore, that all issues have been litigated and determined finally; and appellants cannot relitigate them in this action. The trial court properly entered an order granting summary judgment in favor of appellees.

Affirmed.

      . The complaint filed in the United States District Court for the Eastern District of Pennsylvania contained averments, inter alia, as follows:
      6. The vehicle in question was manufactured by the defendant VWAG and sold or shipped by it to the defendant VWOA, for distribution and sale in the United States.
      7. The defendant VWOA sold or shipped the said vehicle to a Volkswagen distributor for sale and distribution in Pennsylvania.
      8. The said vehicle was sold to Towne Volkswagen, Inc., Philadelphia, Pennsylvania, where it was subsequently sold to the plaintiffs, as described in paragraph 5.
      12. The injuries of the plaintiff Nancy V Day were heightened and aggravated by the negligence of the defendant VWAG in its design, manufacture and inspection of the Microbus, and by the negligence of the defendant VWOA in its inspection and sale of a dangerously defective vehicle, and by the negligence of both defendants in failing to warn the plaintiffs of the uncrashworthings [sic] of the Microbus.

      COUNT II
      CLAIM OF PLAINTIFF NANCY V. DAY FOR ABSOLUTE LIABILITY IN TORT
      14. The averments of paragraphs 1 through 9, and paragraph 11, are incorporated herein.
      15. The injuries of the plaintiff Nancy V. Day were heightened and aggravated by a defective condition of the Microbus, which condition was unreasonably dangerous to the plaintiff Nancy V. Day and which existed at the various times when the various defendants sold the vehicle and the defendants are liable to the plaintiff Nancy V. Day by virtue of the Restatement of Torts, 2d, § 402A.

        count ill
      CLAIM OF PLAINTIFF NANCY V. DAY FOR BREACH OF WARRANTY
      17. The averments of paragraphs 1 through 9 and paragraph 11 are incorporated herein.
      18. The injuries of the plaintiff Nancy V. Day were heightened and aggravated by the defendants’ breach of their express and implied warranties that the Microbus was safe for use and appropriate for the purpose intended.

      . The cause of action for breach of warranty has also been "litigated.” It was eliminated prior to trial in favor of the cause based on absolute liability.

      . The owner’s manual provided with the vehicle noted that ‘‘[e]ach outboard seat is equipped with a third mounting point to facilitate subsequent installation of combination shoulder/lap belts.”


author: McEWEN, Judge:

text:
    464 A.2d 1320
    COMMONWEALTH of Pennsylvania, Appellant, v. Doreen PRICE.
    Superior Court of Pennsylvania.
    Argued March 29, 1982.
    Filed Aug. 19, 1983.

      Mark S. Gurevitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Lenard H. Sigal, Philadelphia, for appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   McEWEN, Judge:

The Commonwealth appeals from an order granting a pretrial motion to suppress physical evidence seized from the residence of appellee pursuant to a search warrant. Since we conclude, contrary to the finding of the Common Pleas Court, that the search warrant was adequately supported by probable cause, we reverse the order of suppression and remand for trial.

The search warrant challenged here was executed by members of the narcotics unit of the Philadelphia Police Department on October 9, 1980, at the apartment of appellee located at 1241 Catherine Street in the Richard Allen Housing Project. As a result of the search, the police officers seized fourteen packets of heroin, five plastic bags of amphetamine, one bag of cocaine, one envelope containing marijuana and a second envelope containing marijuana and also capsules of amobarbital and secobarbital, all of which were seized from the handbag of appellee when they executed the warrant. Appellee was arrested and charged with possession of and possession with intent to deliver controlled substances. 35 P.S. § 780-113(a)(16), id., § 780-113(a)(30). Appellee subsequently filed a pre-trial motion to suppress the physical evidence seized pursuant to the search warrant, based upon her contention that the warrant authorizing a search of her residence was invalid since it was “not supported by probable cause.” The motion to suppress was presented to the court on the basis of a stipulated statement of facts drawn entirely from the search warrant affidavit. The full text of the affidavit of probable cause in the search warrant reads:

On 10-8-80, a concerned citizen who stated that she wish to remain anonymous related the following to the affiant: She stated that she lives in the Richard Allen Project and was very upset with the drug pushers in her neighborhood. She further stated that her 16 year old son goes to 1241 Catherine Street and buys marihuana from Doreen Price inside her apartment 8L. She confronted her son with the marihuana and he told her the following: The son collects money from his friends and goes to Doreen Price’s apartment to purchase whatever they asked for. The son purchased from Doreen on 10-7-80, twenty-five (25) manila envelopes of marihuana and ten (10) packets of heroin for a total of $170.00. Five of these manila envelopes of marihuana were found by the mother in her son’s room. She refused to turned them over to the police for fear of reprisal for her son once his name was known. The son further stated that he calls Doreen on 985-0230, tells her what he wants, she makes up his packet, which she delivers to him when he arrives. He returns to the Richard Allen Project and distributes the items purchased among his friends. As a result of this information, the affiant checked with the Phila. Housing Authority which revealed that the apartment is registered to Doreen Price. A check with police records revealed she has been issued Phila. Photo number 269845, with prior contacts with police while living at 1241 Catherine street apartment 8L. The telephone was checked through Bell Security which revealed it is registered to 1241 Catherine street apartment 8L. The affiant went to this location on 10-9-80 between the hours of 12:30 pm and 1:30 pm, during this time, while standing in the stairwell, I could hear a male and female voice from within discussing prices. The male left a few minutes later and while the door was open, I could smell the strong odor of marihuana coming from within the apartment. Therefore, I have reason to believe that the above person does keep and sell controlled substances from 1241 Catherine street apartment 8L.

The Common Pleas Court determined that the second prong of the Aguilar/Spinelli “two pronged test” for determining whether there is sufficient probable cause for the issuance of a search warrant was not met since the police officer affiant did not have any basis for crediting the hearsay report of the informant. The reasons provided by the hearing judge for his determination were:

The informant had never provided prior reliable information; the informant’s factual information was not corroborated by any other source (except for name, ¿ddress and the phone number, all of which can be corroborated by the telephone book); the informant’s statements were definitely not made against his/her penal interest and there was no evidence that the defendant’s reputation supported the tip. (Slip Op. at p. 3).

The court further recognized that the tip was, in effect, a double hearsay report—the underlying circumstances of the tip provided by the first anonymous informant (the mother), having been based upon hearsay information received from a second unidentified first time informant (the son). (Slip Op. at p. 2). As a result, the hearing judge determined that probable cause for the issuance of a search warrant was lacking and granted the motion to suppress all physical evidence seized as a result of the search. On appeal, the Commonwealth argues that the affidavit of probable cause in the search warrant set forth more than sufficient information to support a finding of probable cause and that the order of the Common Pleas Court granting the motion to suppress was clearly erroneous. We agree.

The United States Supreme Court recently abandoned, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the “two-pronged test” for evaluating the sufficiency of search warrant affidavits that had been established by its decisions in Aguilar v. Texas, supra, and Spinelli v. United States, supra, and declared the decision of the majority of the court to “reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations.” Id. at —, 103 S.Ct. at 2332. Citing, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The court observed in Gates that a totality of the circumstances approach “is far more consistent with our prior treatment of probable cause than is any rigid demand that specific ‘tests’ be satisfied by every informant’s tip.” Id. 462 U.S. at —, 103 S.Ct. at 2328. Central to the probable cause standard is the idea that it is a “practical, non-technical conception,” “a fluid concept—turning on the assessment of probabilities in particular factual contexts— not readily, or even usefully, reduced to a neat set of legal rules.” Id.

In reaching its decision to abandon the Aguilar/Spinelli test, the Court reasoned, inter alia, that:

[t]he ‘two-pronged test’ directs analysis into two largely independent channels—the informant’s ‘veracity’ or ‘reliability’ and his ‘basis of knowledge.’ There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in a totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability (citations omitted).
Unlike a totality of circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip, the ‘two-pronged’ test has encouraged an excessively technical dissection of informants’ tips, with undue attention being focused on isolated issues than cannot sensibly be divorced from the other facts presented to the magistrate.

Id. at---, 103 S.Ct. at 2328-2330. See also Commonwealth v. Prosdocimo, 308 Pa.Super. 187, 197-98, 454 A.2d 84, 89 (1982).

After emphasizing the preference accorded to the warrant procedure, the court went on to observe that:

[T]he traditional standard for review of an issuing magistrate’s probable cause determination has been that so long as the magistrate had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. We think reaffirmation of this standard better serves the purpose of encouraging recourse to the warrant procedure and is more consistent with our traditional deference to the probable cause determinations of magistrates than is the ‘two-pronged test’.

Illinois v. Gates, supra, 462 U.S. at —, 103 S.Ct. at 2331.

Under the revived traditional test, the court stated that “[t]he task of the issuing magistrate j practical, common-sense 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.” Id. at —, 103 S.Ct. at 2332.

In reasoning to this decision the court declared that these elements, e.g., the informant’s “veracity”, “reliability” and “basis of knowledge”, are “all highly relevant in determining the value of his report.” Id. at —, 103 S.Ct. at 2327. However, the court stated that “these elements should [not] be understood as entirely separate and independent requirements to be rigidly exacted in every case.... Rather, ... they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” Id. (footnote omitted).

It is to be noted that the hearing judge in this case, the distinguished Judge Alfred J. DiBono, did not have the benefit of this decision of the United States Supreme Court since his decision and opinion had preceded the Gates decision. Appellant, here the Commonwealth, has preserved the precise issue addressed in Gates and is entitled to the benefit of the decision since the pre-trial suppression issue raised here was on direct appeal at the time the decision in Gates was rendered. See generally Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1975); Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968). See also Commonwealth v. Glasco, 298 Pa.Super. 189, 444 A.2d 724 (1982).

Appellee would contend, of course, that Gates was not the law at the time that the police sought the warrant from the magistrate and that, therefore, Gates is inapplicable and cannot now be applied retrospectively to validate a search warrant already found defective under the two-pronged test. This assertion of appellant overlooks the fact that an effect of the Gates decision was to enable the State of Illinois to proceed to trial against John Gates and to utilize in the presentation of the case of the prosecution the very evidence seized pursuant to the warrant of the magistrate but suppressed by the hearing judge. It must also be noted that we do not here decide—nor need we, by reason of our holding, need to discuss—the argument of the Commonwealth that, aside from the Gates case, there was sufficient evidence to enable a magistrate to conclude there was probable cause for the issuance of a warrant.

The factual situation presented in Illinois v. Gates, supra, was analogous to that presented in the instant case. In Gates, the Bloomingdale Police Department received an anonymous handwritten letter in the mail which identified a married couple by the name of Lance and Sue Gates who, according to the letter, made their living entirely by selling drugs. The letter described the condominium development in the Bloomingdale area where they resided, stated that “most of their buys [were] done in Florida”, and outlined their method of operation by describing their trips to and from Florida for the purchase and transportation of drugs to Illinois. The letter indicated that the wife drove the couple’s car to Florida where she would leave it to be loaded with drugs and that the husband would then fly to Florida and drive the car loaded with the contraband back to the Chicago area. The informant’s letter provided a specific date on which the wife would be driving to Florida and advised that the husband would fly down to Florida a few days later and return with the automobile. The letter further advised the authorities that the car would be loaded with over one hundred thousand dollars worth of drugs on the return trip and that, at the time of the writing of the letter, the couple had over one hundred thousand dollars worth of drugs stored in their basement.

The information provided in the letter was investigated by the Bloomingdale Police who determined that (1) Lance Gates had been issued an Illinois driver’s license and a specific address in the Bloomingdale area; (2) an individual designated as “L. Gates” had made a reservation for a flight from Chicago to West Palm Beach, Florida, on May 5, just two days after the wife was, according to the letter, scheduled to drive to Florida. The Bloomingdale Police then made arrangements with an agent of the Drug Enforcement Administration for surveillance of the May 5 Eastern Airlines flight, who subsequently reported that Gates had boarded the flight and had been placed under surveillance by federal agents after he had arrived in West Palm Beach. It was further reported that Gates took a taxi to a Holiday Inn where he occupied a room registered to Susan Gates and that at 7 a.m., the morning after he had arrived, Gates left the motel with an unidentified woman in a Mercury bearing Illinois license plates and drove northbound on an interstate freeway commonly used by persons traveling to the Chicago area. The agent also informed the police that the license plate number on the Mercury was registered to a Hornet station wagon titled in Gates name. On the basis of this information, the Bloomingdale Police prepared an affidavit setting forth the details of the investigation made on the basis of the anonymous letter and affixed a copy of the anonymous letter itself. The search warrant was granted and was executed when Gates and his wife returned to their condominium in Bloomingdale, driving the same car in which they had departed West Palm Beach the preceding morning. A search of the trunk of the automobile revealed approximately 350 pounds of marijuana and a further search of the Gates’ residence revealed marijuana and other contraband.

The United States Supreme Court reasoned, as it reversed a divided Illinois Supreme Court, that the corroboration by independent police investigative work of major portions of the predictions contained in the anonymous letter, when considered together with the range of details provided in the letter provided a substantial basis for the conclusion that the Gates’ were engaged in drug dealing and, thus, was sufficient to constitute probable cause to search the home and car of the Gates’. While acknowledging that “standing alone, the anonymous letter sent to the Bloomingdale Police Department would not provide the basis for a magistrate’s determination that there was probable cause to believe contraband would be found in the Gates’ car and home”, id. 462 U.S. at —, 103 S.Ct. at 2326, the court observed that it has ‘consistently recognized the value of corroboration of details of an informant’s tip by independent police work” in its decisions applying the totality of the circumstances test. Id. at---, 103 S.Ct. at 2334; citing Jones v. United States, supra; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

The Court remarked that although “anonymous tips seldom could survive a rigorous application of either of the Spinelli prongs,” because the veracity of persons supplying such information is “unknown, and unknowable”, “such tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise ‘perfect crimes.’ ” Illinois v. Gates, supra, 462 U.S. at —, 103 S.Ct. at 2332. Thus, although conceding that “a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment,” the Court opined that “a standard that leaves virtually no place for anonymous informants is not.” Id.

In Gates, the Court observed that the range of details contained in the letter, when considered together with the predictions as to the future actions of the parties which proved remarkably accurate, was of such a character that it “was not unlikely that [the anonymous informant] also had access to reliable information of the Gates’ illegal activity.” Id. at —, 103 S.Ct. at 2335. Cognizant of the possibility that much of this information might have been learned from an indirect source, the court stated that “[i]t is enough that there was a fair probability that the writer of the anonymous letter had obtained his entire story either from the Gates or someone they trusted. And corroboration of major portions of the letter’s predictions provides just this probability.” Id. at —, 103 S.Ct. at 2336.

Similarly, in the instant case, the surveillance by the affiant of the apartment of appellant served to corroborate the information provided by the anonymous informant who obtained her information from her own son. The police officer affiant himself placed the identified apartment in the project under surveillance the day after receiving the anonymous call; and he heard a male and female discuss prices within the designated apartment and, when the door opened and the male exited, was able to detect a strong odor of marijuana that originated from within the apartment. Thus, the independent investigation by the affiant police officer corroborated not only the “innocent details” of appellee’s name, address and telephone number but also confirmed, through his olfactory sense, the presence of burning marijuana, one of the items described by the informant, in the apartment; the conversation overheard by the police officer affiant concerning prices, when combined with the details of the informant’s advice and the odor of illicit drugs emanating from within the apartment, provided a substantial basis for the conclusions that drug prices were the subject of discussion, that drugs were being sold inside the apartment and that the activity was of a continuing nature. This police corroboration of the substance of the tip, by itself, was sufficient to establish the credibility of the informant. See Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974); Commonwealth v. Norwood, 456 Pa. 330, 319 A.2d 908 (1974); Commonwealth v. Dial, 445 Pa. 251, 285 A.2d 125 (1971); Commonwealth v. Grabowski, 306 Pa.Super. 483, 452 A.2d 827 (1982); Commonwealth v. Freeman, 295 Pa.Super. 467, 441 A.2d 1327 (1982); Commonwealth v. Marzel, 291 Pa.Super. 553, 436 A.2d 639 (1981); Commonwealth v. Toner, 289 Pa.Super. 200, 433 A.2d 25 (1981); Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980); Commonwealth v. Whitehouse, 222 Pa.Super. 127, 292 A.2d 469 (1972); Commonwealth v. Billock, 221 Pa.Super. 441, 289 A.2d 749 (1972).

The fact that the informant withheld her name from the police so as to protect her son, the fact of her status as an untested first time informant and the double hearsay nature of her report should not, as the Supreme Court recognized in Gates, erect a barrier to effective police use of the information she provided. All that was required of the magistrate was to determine whether there was, on the basis of the facts supplied within the affidavit, including the corroboration of the information supplied by the independent police investigation, “a fair probability that contraband ... [would] be found in a particular place.” Illinois v. Gates, supra, 462 U.S. at —, 103 S.Ct. at 2332. The wealth of detail, provided by the informant concerning the purchases of drugs by her son from appellant, including the types of drugs available, the quantities purchased, the prices, the methods of packaging and the explicit account of the arrangements for and the details of the actual purchases by the son, when viewed in conjunction with the independent police corroboration of a number of crucial details provided by the informant, and most significantly, the personal observations of the affiant, furnished an ample informational basis for the determination of the magistrate. Therefore, we hold that the information in the affidavit was clearly sufficient under the totality of the circumstances test set forth in Illinois v. Gates, supra, to constitute the probable cause necessary for the issuance of the search warrant.

Order reversed. Case remanded for trial.

Jurisdiction is relinquished.

POPOVICH, J., concurs in the result.

      . Our examination of the record has led to the independent conclusion that the instant suppression order will finally terminate the prosecution, since it is clear that the prosecution could not proceed without the evidence seized pursuant to the search warrant. Therefore, the order suppressing the physical evidence seized is appealable. See Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983).

      . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).