author: MONTEMURO, Judge:

text:
    451 A.2d 4
    COMMONWEALTH of Pennsylvania v. Ronald L. BERRY, Joseph H. Bogart, John E. Green, Ronald L. Berry, Terry L. Benshoff, James S. Keller, David C. Shoemaker, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1981.
    Filed Sept. 24, 1982.

      Michael H. Collins, Williamsport, for appellants.
    Kenneth D. Brown, District Attorney, Williamsport, submitted a brief on behalf of Commonwealth, appellee.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

Appellants were convicted by a magistrate of a violation of Section 4901(a) of the Motor Vehicle Code, exceeding the maximum gross permissible weight of a vehicle. Appellants were truck drivers employed by Milk Tank Lines, and each was arrested while operating a truck in the course of his employment for that company. Their convictions were affirmed on their appeals to Common Pleas Court. Because of the factual similarity and identical issue in the cases, the trial court considered all of the cases in a single opinion and order. The sole issue presented to us now on appeal is whether adequate grounds existed to permit the police officers in question to stop and weigh the particular commercial vehicle on each occasion. Appellants contend that the lower court erred in applying the “reasonable and articulable suspicion” standard, instead of a probable cause standard in ruling on the legality of the “stops” of the vehicles. For the reasons set forth below, we agree with the trial court and affirm.

A short recitation of the facts surrounding each of the stops is necessary. Trooper Charles Fama of the Pennsylvania State Police was the arresting officer in four of the seven cases. The first incident involved appellant Ronald Berry. Trooper Fama was stationed at the top of a ramp leading to the northernmost point of the beltway which bypasses the City of Williamsport. The trooper had his cruiser located so as to be able to see at least the top of the approaching truck for a distance in excess of one quarter mile. He was also in a location from which he could observe the speed of the vehicle as it came up the incline of the ramp. He stopped the truck because it was “pulling very hard” and having a “tough time” making the grade. From his experience in observing over one thousand trucks at that site, he concluded that unless the truck was overweight, it would not have had such difficulty in making the grade. Also, the officer knew from prior conversations with drivers from Milk Tank Lines that the drivers would not operate the tank trucks unless they were full. The trucks were not equipped with baffles; and, therefore, if the trucks were partially full, the milk contents would splash and create a hazard to the drivers. The officer concluded from his knowledge of the capacity of the tank, the weight of milk, and the weight of the truck, that if the tanks were filled to capacity, it would exceed the maximum gross weight.

The next two cases involved appellants Bogart and Green. Trooper Fama stopped Green after he came up a ramp. While there, he observed Bogart coming up the ramp and he stopped him also. The trooper stopped Green because he observed milk spilled from the hatch on the top of the tank. When the truck was stopped, he observed that the milk that had spilled was still wet, indicating that the tank was full. The other consideration was again the trooper’s prior conversations with the truck drivers from that company. There was no observation that the trucks were laboring up the grade or any observation of spillage from the truck operated by Bogart.

The next instance again involved appellant Berry. Trooper Fama was located at the same vantage point near the intersection of the ramp and the beginning of the Williams-port bypass. On that day, he was making a systematic check of all large trucks. From his vantage point, he could see an intersection to the north where trucks would enter a bypass or proceed into the city of Williamsport. He had seen Milk Tank Line trucks on a daily basis and had never seen one go through the streets of Williamsport. It was his suspicion that the driver was trying to avoid the location of the weight check. He radioed a mobile weight unit and requested them to follow him until he could effectuate a stop. After losing sight of the truck, he eventually sighted it and followed it through the city and into the suburbs where he eventually stopped it. While following the truck, he observed that the tires were bumping together, a sign indicative of excess weight on the rig. He stopped the rig because of the condition of the tires, because he believed the driver evidenced a guilty mind by avoiding him, and because on that day, he was making a systematic check.

The next three cases involved a stop by Trooper Charles Snyder of three trucks that were driving together, and driven by appellants Benshoff, Keller and Shoemaker. Trooper Snyder was operating a weight check at the intersection of Pennsylvania Route 87 and U.S. Route 220 in the Borough of Montoursville. After the three Milk Tank Line Trucks passed his location, the officer pulled out and followed them up a ramp. He noted that their speed was very slow, and they were “pulling hard” and emitting heavy smoke. He also noted that the tires in each of the three vehicles were bulged, indicating that the trucks were carrying excessive weight. Based on these criteria, he stopped the vehicles. Trooper Snyder had never before stopped a Milk Tank Line truck and had not spoken previously with any of its operators.

It is clear that when a police officer stops a vehicle, such stop constitutes a search and seizure under the Fourth Amendment. Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1970). The Fourth Amendment protects individuals from unreasonable invasions of their privacy. Necessarily, this expectation of privacy varies according to the location of the search, the extent of the search, the time of the search, and the governmental interest in executing the search. See Delaware v. Prouse, supra, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967), Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959). Individuals in motor vehicles have a lesser expectation of privacy than individuals in their personal residence. Chambers v. Maroney, supra. The fact that property which is subject to a search is government regulated, does not destroy all expectations of privacy. Camara v. Municipal Court, supra, See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), see also Marshall v. Barlow’s Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). However, the extent of government regulation is a factor in determining the propriety of a search. The cases before us deal with the stopping of commercial vehicles.

Case law from the Pennsylvania Appellate Courts and the U. S. Supreme Court have recognized the “reasonable and articulable suspicion” standard as the basis for stopping a private motor vehicle. See Delaware v. Prouse, supra, Commonwealth v. Ferraro, 237 Pa.Super. 268, 352 A.2d 548 (1975), Commonwealth v. Nastari, 232 Pa.Super. 405, 335 A.2d 468 (1975).

The “reasonable and articulable suspicion” standard was first articulated in Terry v. Ohio, supra. In that case, the court noted that a dual inquiry was necessary in determining the reasonableness of a search; “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. 392 U.S. at 20, 88 S.Ct. 1868, 20 L.Ed.2d 889. The court, in order to determine whether the justification of the search was proper, enunciated the following test:

... it is necessary “first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,” for there is “no ready test for determining reasonableness other than by balancing the need to search [or seizure] against the invasion which the search [or seizure] entails.

Id. at 391-392, 88 S.Ct. at 1868, 20 L.Ed.2d 889 (Citations Omitted).

In Terry, the court recognized that a police officer could constitutionally “stop” a pedestrian for investigatory purposes on facts amounting to less than probable cause and “frisk” the individual for the limited purpose of police safety in discovering a weapon.

Although the facts and the ultimate holding in that case vary from the case presently before us, the underlying rationale is nevertheless applicable.

When we balance the privacy rights of the truck operators against the expressed governmental interest in maintaining safe highways, we hold that under the facts of these cases, the stopping and weighing of these vehicles was constitutionally permissible. The stops were based on specific and articulable facts and the weighings are in and of themselves a minimally intrusive type of search. Trucks are subject to greater governmental regulations than automobiles because of their obvious burden and heightened danger to the highways. Police officers would effectively be precluded from enforcing the law if they were merely allowed to stop the vehicle without weighing it in situations in which all trucks were not being stopped. Also, the stops were not totally non-discretionary acts, subject only to the whim of the officers. See, U. S. v. Harper, 617 F.2d 35 (4th Cir. 1980), see also Delaware v. Prouse, supra.

We emphasize that our holding today does not endorse a full search of a commercial vehicle. The scope of the search is limited to the minimal intrusion of weighing the vehicle.

For the foregoing reasons, we conclude that the dismissal of the summary appeals was proper.

Accordingly, judgment of sentence is affirmed.

      . Post-trial motions to the Common Pleas Court were not filed. Since the decision in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981), the filing of post-trial motions from the dismissal of summary appeals has been made mandatory. However, since the dismissal of the summary appeals in these cases occurred before the Koch decision, the appeal is properly before us.

      . In Commonwealth v. Swanger, supra, the Pennsylvania Supreme Court apparently enunciated a probable cause standard for stopping an automobile. However, in that case the police stopped a car which exhibited no outward sign of non -compliance with the Motor Vehicle Code. The court based its decision on the absence of any reasonable and articulable facts that would warrant an intrusion. The court, in note 3, specifically excluded systematic stops or roadblocks from its holding. Since Swanger, Pennsylvania courts have interpreted that case to allow a stop on facts amounting to less than probable cause. See Commonwealth v. Nastari, supra, Commonwealth v. Ferraro, supra. The rationale of the stops is consistent with the holding in Terry v. Ohio, infra (stop and frisk of pedestrians).

      . Terry involves a frisk after, a stop. Our case involves a weighing after a stop.

      . In the case before us there are reasonable and articulable facts justifying the stopping and weighing of the vehicles. The legislative act authorizing this procedure, 75 Pa.C.S.A. 4981, imposes no restraint on officers in the stopping and weighing of vehicles. In Delaware v. Prouse, supra, the U. S. Supreme Court, while condemning purely random stops of private automobiles, stated “nor does our holding today cast doubt on the permissibility of a roadside truck weigh station and inspection checkpoints at which some vehicles may be subject to further detention for safety and regulatory inspections than are others” Id., 440 U.S. 648, at 663, 99 S.Ct. 1391, at 1401, 59 L.Ed.2d 660 footnote 26. While we conclude that there were reasonable and articulable facts justifying the stops, we also note that three stops by Trooper Snyder are alternately justifiable as systematic stops under Commonwealth v. Swanger, supra and Delaware v. Prouse, supra. The constitutionality of totally random stops is not now before us.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    451 A.2d 218
    COMMONWEALTH of Pennsylvania v. William Henry TYLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 2, 1981.
    Filed Oct. 1, 1982.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   BROSKY, Judge:

On June 25, 1980, appellant, William Henry Tyler, was convicted of three counts of burglary. No post-verdict motions were filed. On August 4,1980, Tyler was sentenced to serve a term of imprisonment of three and one-half to seven years. He was also ordered to make restitution in the amount of $1,025. On September 17, 1980, Tyler filed a petition under the Post Conviction Hearing Act in which he alleged numerous reasons why his trial counsel was ineffective. The P.C.H.A. court rejected all of Tyler’s claims for relief save one, his request to be permitted to file a direct appeal nunc pro tunc. The P.C.H.A. court found that counsel was ineffective in failing to file an appeal. Tyler then filed this direct appeal. We affirm the decision of the trial court in part but reverse in part and remand for resentencing the remaining count. Tyler’s sole contention in this appeal is that his trial counsel was ineffective.

On June 20, 1979, Tyler, Charles Bullock and Jerry Corbin drove a car to a building at 100 Chestnut Street in Harrisburg. They entered the building using keys which Corbin possessed as an employee of the company hired by the owners of the building to perform janitorial services. Television sets, radios and tape recorders were stolen from several offices, and one office reported missing several escrow checks. All the offices from which things were taken were broken into without any visible signs of force. The escrow checks were taken from an office which was broken into without force. The checks were within a desk which was usually locked. The desk was not forced open. No other articles were taken from that office. All the thefts, except for the checks, were reported the day after the criminal incident. The stolen checks were not reported until several days later. No person in any of the offices knew Tyler.

It is very clear that we will only find trial counsel to have rendered ineffective assistance of counsel where he failed to have any reasonable basis for failing to act in a manner which would have effectuated his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). We will not, however, fault counsel for failing to make frivolous or fruitless motions. Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978). The burden is on the defendant to successfully prove that his counsel was ineffective. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980).

First, Tyler claims that his trial counsel was ineffective for failing to file a pre-trial motion to quash the information. He complains the information was based on evidence of a corrupt source, Charles Bullock. This motion would have been based also upon a challenge to the testimony of Bullock given the fact, again, that Bullock was a corrupt source and that no independent corroboratory evidence was presented. Tyler claims counsel should, therefore, have challenged Bullock’s “right to testify.” Thus, he reasons as the information was based solely on what was Bullock’s testimony, it should have been quashed. This contention is without merit. In Pennsylvania, a criminal conviction can be sustained solely on the basis of the uncorroborated testimony of an accomplice. Commonwealth v. Gordon, 254 Pa.Super. 267, 385 A.2d 1013 (1978).

Next, Tyler states that his trial counsel was ineffective because he did not object to certain remarks made by the trial judge to the jury. Those remarks were said as an introduction to the jury. They include:

The Court: Ladies and gentlemen, we are going to start the trial of the case and we will go on here for a while with a few witnesses....
This will not be a long case. A burglary occurred at the office building that I’m referring to. You will hear from the people connected with the offices that were entered and then the essence of this case is an accusation by one who has already admitted his guilt that the defendant Mr. Tyler was also involved.
So you are going to be involved in judging the credibility of the Commonwealth’s witness who has admitted that he participated in this offense and is implicating Mr. Tyler. So as you listen to the testimony with that thought in mind, I’m sure you will pay close attention to the witnesses who bear on that question.

Tyler states that this statement was objectionable because it “described the case to the jury as one where the only issue for its determination was the credibility of the witness who would implicate appellant.” (Appellant’s brief, page 17.) This is clearly not a correct interpretation of the trial judge’s introductory remarks. The judge stated that the case was essentially, not exclusively, one involving credibility. He explained to the jury that it must appraise the credibility of all the witnesses. The jury was not told, as Tyler complains, that it need not require proof of every element of each crime charged. An objection to the trial judge’s introductory remarks would have been frivolous and entirely without merit. Counsel was not ineffective in this matter. Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980).

Tyler remonstrates, further, that his trial counsel failed to object to certain leading questions asked by the Commonwealth of its key witness, Charles Bullock. These questions specifically concerned the loading of the stolen goods into a car after the burglary was completed. Tyler claims the questioning was improper and that the failure of his counsel to object prejudiced his case. This contention is without merit. The allegedly objectional question was not leading. The Commonwealth through direct questioning established that the stolen items were loaded into a car. Then, the prosecutor asked:

Q. So you loaded the stuff in the car, then what did the
three of you do?
A. Well, we proceeded out to sell it.

An objection to the form of the questions would have been frivolous. Counsel acted properly. Commonwealth v. Butler, 495 Pa. 82, 432 A.2d 590 (1981).

In the next assertion raised by Tyler, he contends that his trial counsel was ineffective because he failed “to cross-examine Detective Martin Lesko in more depth about what transpired between him and Charles Bullock from the time of Bullock’s arrest until he gave a statement implicating appellant.” (Appellant’s brief, page 20.) Essentially, Tyler complains that a more extensive cross-examination would have demonstrated to the jury that Bullock, a known “drug user in need of a ‘fix’ ” id, was vulnerable to both threats and promises made and given by the Commonwealth. This Tyler believes would have impeached Bullock’s credibility and thereby greatly advanced his interests. The record does not support this contention. Trial counsel made vigorous attempts to question Lesko concerning the relationship between Lesko and Bullock and any pressure placed upon Bullock. Tyler has not successfully shouldered his burden of proof in this regard. Commonwealth v. Burton, supra.

Tyler states also that his trial counsel failed to file post-verdict motions arguing that the conviction of burglarizing Title Insurance Company was not supported by sufficient evidence. Counsel had generally demurred to all charges, but had been overruled.

To preserve his claim of insufficient evidence to support a conviction, counsel should have filed post-verdict motions containing that allegation. See Commonwealth v. McNeal, 493 Pa. 395, 396, 426 A.2d 606, 608-609 (1981).

Our review of the evidence convinces us that his failure to do so lost to the appellant a meritorious issue. (See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), abandoned claim must be of arguable merit if counsel is to be found ineffective.) The following facts appear of record.

On July 31, 1979, Linda Zlater, an employee of the Title Insurance Company, testified that she went to work and discovered nothing missing from her office. She stated that she saw no evidence of a break in on that date. Several days later, she noted that several escrow checks were missing from her desk. Having known that several offices in the building were burglarized recently, she reported the apparent theft to the authorities. There is no evidence in the record that anything else was taken from the office. Ms. Zlater stated:

Q. Do you recall are you the last one to leave the suite?
A. Yes, I was.
Q. Did you lock the doors?
A. Yes.
Q. And where were these checks located?
A. In my drawer, the desk drawer.
Q. Is that drawer to your desk locked?
A. Yes.

No evidence was admitted as to whether the keys which Corbin had, as a janitor, included the key to the desk in Title Insurance Company. No evidence was admitted to prove the checks were present in the drawer on the night the burglary occurred. Furthermore, no evidence was admitted, through Bullock’s testimony, that the checks were among the items stolen. Essentially, the Commonwealth’s case was that several days after the burglaries, checks were discovered missing from the Title Insurance Company, that those checks had at one time been locked in a desk and that there was no evidence of a forced break in at the office. We cannot hold that this evidence would have been sufficient to prove beyond a reasonable doubt that Tyler was guilty of the commission of a burglary at the Title Insurance Company. Therefore, post-verdict motions should have been filed raising the sufficiency of evidence issue as to the Title Insurance Company case. Trial counsel was ineffective.

Since we have found that the conviction is not supported by sufficient evidence and that counsel was ineffective in not pursuing that claim, we reverse as to the counts involving Title Insurance Company.

Next, Tyler asserts that his trial counsel rendered ineffective assistance of counsel in failing to object to the lower court’s charge to the jury. The pertinent portion of the charge states:

In this case there are obvious conflicts, someone is not telling the truth, it is that simple, and you have to decide that issue.
There is a maxim in the law taken from the Latin phrase falsus in uno, falsus in omnibus; false in one thing, false in many. This concept is that if a witness testifies falsely to a material fact and you as jurors are satisfied that the witness made a conscious falsehood or an intentional misstatement you may, if you wish, disregard everything that that witness has said. That is an option that you have. You do not have to exercise it but you may disregard all the testimony of any witness who tells a falsehood consciously about an important matter.
I think that is only a rule of common sense if someone lies to us bluntly about an important matter, we are going to be very careful about anything else that that person tells us relating to anything important.

This instruction was proper. Commonwealth v. Joyce, 202 Pa.Super. 350, 197 A.2d 226 (1963). Therefore, trial counsel was not ineffective in failing to object to the charge.

Finally, Tyler contends that his trial counsel was ineffective in failing to clarify certain aspects of Tyler’s prior record at the sentencing hearing, in implicitly admitting Tyler’s guilt, and in failing to object to the court’s characterization of Tyler as a threat to the community. Initially, we note that Tyler fails to state what aspects of his prior record his trial counsel failed to present the court. Therefore, Tyler has not met his burden to show ineffectiveness. Commonwealth v. Burton, supra. Secondly, we are unwilling to hold that it is an improper strategy for a trial attorney to admit his client’s guilt after he has been convicted and especially where no post-verdict motions have been filed. Cf., Commonwealth v. Mizel, 493 Pa. 161, 425 A.2d 424 (1981). We are persuaded also that the trial court properly considered all relevant factors in sentencing Tyler in compliance with Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1978). Trial counsel was not ineffective.

Sentence vacated as to the counts involving Title Insurance Company. Judgment of sentence reversed and remanded for resentencing on the other counts.

      . 18 Pa.C.S.A. § 3502.

      . 19 P.S. § 1180-1 et seq.

      . This decision is controlled by our recent opinions in Commonwealth v. May, 296 Pa.Super. 435, 442 A.2d 1129 (1982), and Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982). We are satisfied that the record in the instant case is sufficiently complete for us to determine the ineffectiveness issues raised in this direct appeal, without remanding to the P.C.H.A. court for an evidentiary hearing.

      . Tyler states that his counsel should have objected to the imposition of sentence on the basis of his employment and financial status. While the court considered Tyler’s employment record and financial status in making its sentence, we are convinced that the trial court sentenced Tyler after considering numerous factors, one of which was his employment history. We are unable to find this procedure was at fault. The trial court provided individualized sentencing in compliance with Commonwealth v. Martin, supra. Thus, trial counsel was not ineffective in failing to object to the trial court’s consideration of Tyler’s employment history and economic status.


author: HOFFMAN, Judge:

text:
    451 A.2d 223
    COMMONWEALTH of Pennsylvania v. Joan WELLINGTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1982.
    Filed Oct. 8, 1982.

      George B. Ditter, Ambler, for appellant.
    Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant, a resident alien, contends in this appeal from a denial of a PCHA petition, that the trial court erred, or, alternatively, that counsel was ineffective, in failing to advise her that pleading guilty to retail theft, second offense, could render her subject to deportation. We conclude that the trial court did not err, but that counsel was ineffective in failing to so advise her. Accordingly, we reverse the PCHA court, allow appellant to withdraw her plea, and remand for further proceedings consistent with this opinion.

Appellant is a resident alien and a citizen of Jamaica. Represented by counsel, she pled guilty to retail theft, second offense, and was sentenced to probation and a fine. She neither petitioned to withdraw her plea nor took a direct appeal. Almost a year later, federal authorities commenced deportation proceedings. Represented by new counsel, she petitioned under PCHA to withdraw her guilty plea on grounds that neither counsel nor the court had advised her of the possible deportation consequences of her proposed guilty plea. After the parties agreed that this factual issue was not in dispute, Lower Ct.Op. at 1, the evidentiary hearing was waived. The lower court then held Lhat appellant had no right to such advice. This appeal followed.

Appellant contends first that the lower court should have advised her in the plea colloquy that by pleading guilty to this offense she could be subject to deportation. We disagree. Deportation is a potential collateral consequence of certain convictions of those subject to the immigration laws. See 8 U.S.C. § 1251. It is, however, imposed by “another agency over which the trial judge has no control and for which he has no responsibility.” Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974). Courts have thus consistently held that a trial court’s failure to inform a defendant of this potential collateral consequence does not invalidate his plea. Fruchtman v. Kenton, 531 F.2d 946 (9th Cir. 1976); Michel v. United States, supra; Edwards v. State, Fla.App., 393 So.2d 597 (1981); State v. Reid, 148 N.J.Super. 263, 372 A.2d 626 (App.Div.1977). Accordingly, we cannot find the court’s omission to be a basis for allowing appellant to withdraw her guilty plea.

Appellant contends alternatively that her trial counsel was ineffective in failing to advise her before she entered the guilty plea of the possible deportation consequences. We agree. A guilty plea is a waiver of treasured rights, and to be valid it must be knowingly, intelligently, and voluntarily made. See Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040 (1980). Counsel’s ineffectiveness in failing to advise a defendant before a guilty plea of the significant legal consequences may therefore require that the plea be withdrawn. See Commonwealth v. White, 277 Pa.Superior Ct. 109, 419 A.2d 685 (1980) (counsel’s failure to advise of consequences of not timely petitioning to withdraw plea); Commonwealth v. Dyas, 263 Pa.Superior Ct. 129, 397 A.2d 434 (1979) (duty to advise defendant of consequences of plea unless court does so). Deportation is indeed a significant consequence of certain convictions, see 8 U.S.C. § 1251(a), and has been likened to a “life sentence of exile,” Jordan v. DeGeorge, 341 U.S. 223, 243, 71 S.Ct. 703, 714, 95 L.Ed. 886, 898 (1981) (JACKSON, J., dissenting); accord, Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433, 436 (1947) (“the equivalent of banishment”); Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938, 943 (1922) (may result in the “loss of property or life; or of all that makes life worthwhile”). “Defense counsel is in a much better position [than the trial court] to ascertain the personal circumstances of his client so as to determine what indirect consequences the guilty plea may trigger.” Michel v. United States, supra at 466. Consequently, we now hold that counsel has a duty to an alien client to inquire into and advise her of the possible deportation consequences of a contemplated plea. See Michel v. United States, supra; Edwards v. State, supra. Cf. People v. Giron, 11 Cal.3d 793, 114 Cal.Rptr. 596, 523 P.2d 636 (1974) (defendant’s lack of awareness of deportation consequences good cause for vacating plea). Because counsel’s failure to undertake such actions could have no reasonable basis designed to effectuate appellant’s interests, see Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), he was ineffective, and appellant must be permitted to withdraw her guilty plea. Accordingly, we must reverse the lower court and remand for further proceedings consistent with this opinion.

So ordered.

      . Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, No. 554, 19 P.S. § 1180-1 et seq.

      . The Commonwealth contends that appellant has waived any challenge to the colloquy and to counsel’s effectiveness because she did not raise counsel’s additional ineffectiveness in not timely petitioning the lower court for permission to withdraw the plea and in not taking a direct appeal. Under PCHA, a petitioner may not seek review of claims that were finally litigated or waived in an earlier proceeding, see 19 P.S. § 1180-3(d), absent a showing of extraordinary circumstances such as ineffectiveness of counsel, see id. § 1180-4(b)(2). See, e.g., Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978). However, appellant asserts that her trial counsel was ineffective in abandoning at an early stage of the action her right to be advised of deportation consequences. She may not be penalized for counsel’s failure to discover or assert his own ineffectiveness. See, e.g., Commonwealth v. Glasco, 481 Pa. 490, 393 A.2d 11 (1978), Because her petition was appellant’s first opportunity to assert this continuing pattern of ineffectiveness through independent counsel, the issues are properly before us on this appeal.

      . State v. Reid, supra, relied upon by the Commonwealth, is inapposite because appellant there never alleged ineffectiveness of trial counsel.


text:
    451 A.2d 225
    Philip ROTHMAN v. Gloria FILLETTE and Ronald Fillette, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1981.
    Filed Sept. 17, 1982.
    Petition for Allowance of Appeal Granted Jan. 6, 1983.

      Alan H. Ross, Philadelphia, for appellants.
    Edgar R. Einhorn, Philadelphia, for appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend the lower court erred in striking an order to settle, discontinue and end appellee’s personal injury action. Finding no abuse of- discretion, we affirm the order of the lower court.

Appellee, injured in a 1971 automobile accident, brought suit in trespass in 1972. His attorney negotiated with appellants’ insurer, and, in 1974, agreed to a $7000 settlement. The attorney delivered a release, accepted a draft, and filed a praecipe to mark the case settled. Unaware of these events and believing his case would eventually go to trial, appellee maintained contact with his attorney until 1979, when he discovered that the case had been marked “settled”, and his attorney had appropriated the settlement proceeds. Appellee immediately engaged a new attorney and promptly petitioned to strike the settlement order. The lower court granted the petition, finding appellee’s attorney lacked authority to settle the claim and had forged his client’s signature on both the release and draft. This appeal followed.

“As between the parties involved, the settlement and discontinuance had the same effect as the entry of a judgment for the defendant in the proceedings.” Sustrik v. Jones & Laughlin Steel Corp., 413 Pa. 324, 326-27, 197 A.2d 44, 46 (1964). Accord, Miller v. Commonwealth, Department of Highways, 52 Pa. Commonwealth Ct. 127, 129, 415 A.2d 709, 710 (1980). A petition to strike a settlement and reopen a case is addressed to the discretion of the lower court, whose decision will not be reversed absent an abuse of discretion. Yarnall v. Yorkshire Worsted Mills, 370 Pa. 93, 87 A.2d 192 (1952) (petition to set aside stipulation settling suit and to reopen case). “[A] settlement is a contract which may be attacked only for want of consideration or authority or on the usual equitable grounds.” Baumgartner v. Whinney, 156 Pa. Superior Ct. 167, 171, 39 A.2d 738, 739-40 (1944). Accord, Berg v. Cypher, 291 Pa. 276, 281, 139 A. 844, 846 (1927) (fraud or imposition); Greentree Cinemas, Inc. v. Hakim, 289 Pa. Superior Ct. 39, 42, 432 A.2d 1039, 1041 (1981) (fraud or mistake). Therefore, we must decide whether the court below abused its discretion in holding that appellee could avoid the unauthorized, fraudulent settlement by his attorney.

Appellants contend that appellee was bound by the settlement because he had impliedly authorized his attorney’s action or is estopped from denying his agency. See generally, Apex Financial Corp. v. Decker, 245 Pa. Superior Ct. 439, 443, 369 A.2d 483, 485 (1976) (principal may be liable for acts of agent on the basis of estoppel or express, implied, or apparent authority). The Pennsylvania rule concerning an attorney’s authority, however, is quite explicit: absent express authorization from the client, an attorney cannot compromise his client’s claim or release his cause of action, see, e.g., Tucker v. Tucker, 370 Pa. 8, 19, 87 A.2d 650, 656 (1952), or settle litigation, International Organization Masters, Mates & Pilots of America, Local No. 2 v. International Organization Masters, Mates & Pilots of America, Inc., 456 Pa. 436, 441, 318 A.2d 918, 921 (1974). See generally, Archbishop v. Karlak (Senyshyn v. Karlak), 450 Pa. 535, 539-41, 299 A.2d 294, 296-97 (1973); McLaughlin v. Monaghan, 290 Pa. 74, 78, 138 A. 79, 80 (1927); Township of North Whitehall v. Keller, 100 Pa. (4 Outerbridge) 105, 108 (1882); Chambers v. Miller, 7 Watts 63, 63-64 (Pa.1838); Lodowski v. O'Malley (Lodowski v. Roenick), 227 Pa. Superior Ct. 568, 570-573, 307 A.2d 439, 440-41 (1973); Baumgartner v. Whinney, supra, 156 Pa.Super. at 171, 39 A.2d at 739; Garnet v. D’Alonzo, 55 Pa. Commonwealth Ct. 263, 265, 422 A.2d 1241, 1242 (1980); 2 S. Feldman, Pennsylvania Trial Guide § 24.6 (1978). Although “the authority to conduct a transaction includes the authority to do acts incidental to it, usually accompanying] it, or . . . reasonably necessary to its accomplishment,” and “an attorney, by virtue of his office, may have broader powers than the ordinary agent to bind his clients by admissions and acts in the course of suit or in the management of the regular course of litigation,” settlement authority must still be expressly granted. Starling v. West Erie Avenue Building & Loan Association, 333 Pa. 124, 126-27, 3 A.2d 387, 388 (1939) (citations omitted). “The necessity of special authority set forth in [Pennsylvania] cases not only denies the existence of implied authority, but also of apparent authority of an attorney to bind his client to such obligations by virtue of his office.” Id., 333 Pa. at 127, 3 A.2d at 388. Accord, Lodowski v. O’Malley (Lodowski v. Roenick), supra 277 Pa.Super. at 572-73, 307 A.2d at 441 (local rule requiring attorney to have full settlement authority does not imply such authority from the attorney’s mere presence, it must be “in writing; by his client’s presence; or by any other method that brings to the court the knowledge of the client’s direct consent to the settlement”); Garnet v. D’Alonzo, supra, 55 Pa.Cmwlth. at 265, 422 A.2d at 1242 (“ordinary employment of an attorney . . . with respect to litigation does not itself give the attorney the implied or apparent authority to bind the client with settlement or compromise”). Because appellee’s contingency fee agreement with his attorney is silent as to settlement authority, and appellee never extended such authority, the attorney lacked the express authority upon which a binding settlement could rest. Similarly, appellee is not bound to the settlement through agency by estoppel. “Authority by estoppel occurs when a principal by his culpable negligence, permits an agent to exercise powers not granted to him, even though the principal did know or have notice of the agent’s conduct.” Apex Financial Corp. v. Decker, supra 245 Pa.Super. at 444-45, 369 A.2d at 487. The record is devoid of any evidence supporting agency by estoppel, establishing instead that appellee had acted prudently. Appellee, an individual who did not normally engage in litigation, retained an attorney who had once represented him in an unrelated personal injury action, and regularly inquired about the status of his case. Promptly after discovering his attorney’s defalcation, appellee repudiated the purported settlement, and initiated these proceedings to strike the order marking the case settled, discontinued and ended. Consequently, the lower court properly held that appellee could avoid the unauthorized settlement.

Appellants contend also that the lower court disregarded the fact that their insurer, an innocent party, would ultimately bear the loss because neither appellee nor his attorney had offered to restore it to the position it had occupied before the fraudulent settlement. Cf., Township of North Whitehall v. Keller, supra (within two days of repudiating unauthorized settlement, client offered to return money). They argue that “[wjhere one of two innocent persons must suffer by reason of the fraud of another, the loss must fall on him by whose act the wrongdoer has been enabled to commit the fraud.” Mielcuszny v. Rosol, 317 Pa. 91, 96, 176 A. 236, 238 (1934) (citations omitted). Accord, Keller v. N. J. Fidelity & Plate Glass Ins. Co., 306 Pa. 124, 135, 159 A. 40, 44 (1932); Franklin Fire Ins. Co. v. Bradford, 201 Pa. 32, 38, 50 A. 286, 288 (1901); Lipman v. Noblitt, 194 Pa. 416, 418, 45 A. 377, 378 (1900); DeTurck v. Matz, 180 Pa. 347, 357, 36 A. 861, 864 (1897); Rykaczewski v. Kerry Homes, Inc., 192 Pa. Superior Ct. 461, 465, 161 A.2d 924, 926 (1960). See also, Restatement (Second) of Agency §§ 261, 262 (1958). In Lipman, DeTurck, and Rykaczewski, the court was determining which of the two parties was the principal of a third party agent. Although DeTurck involved an attorney, he was acting as a general agent for the transaction in question. These cases, as well as Keller and Franklin Fire Ins. Co., were all governed by general agency law. Both North Whitehall and Mielcuszny involved attorney/client relationships, an agency which has unique status in Pennsylvania law. In North Whitehall, our Supreme Court noted that an attorney’s power was specific, not general, and courts could “relieve clients from unwarranted acts of their attorneys.” 100 Pa. (4 Outerbridge) at 108, 109. In Mielcuszny, our Supreme Court observed that the loss should be borne by the debtors who had failed to ascertain whether the attorney to whom they paid the mortgage principal had the creditor’s authorization. 317 Pa. at 95-96, 176 A. at 237-238. See also, Browne v. Hoekstra, 279 Pa. 418, 123 A. 861 (1924) (no prior knowledge of third party’s tendency to misconduct); Mynick v. Bickings, 30 Pa. Superior Ct. 401 (1906) (prudent inquiry). Accord, Starling v. West Erie Avenue Building & Loan Association, supra 333 Pa. at 127, 3 A.2d at 388 (“Anyone who deals with an attorney is bound to notice and inquire into the authority he proposes to exercise.”) (dicta). Nothing in the present record shows either appellants or their insurer attempted to ascertain the attorney’s authority before consummating settlement. They might have, for example, required any release to be notarized; requested that appellee personally execute the release in their presence; or obtained, consistent with disciplinary rule 7-104 of the Code of Professional Responsibility, permission to contact appellee to verify settlement. No such efforts were made. Thus, were we to apply the “two innocents” rule, appellants’ failure to discharge their own duty to inquire into the attorney’s settlement authority would not warrant a reversal of the lower court’s order.

Affirmed.

      . Under some limited circumstances, clients have been forced to bear the burden of their attorneys’ improper acts. See, e.g., Williams v. Cook, 289 Pa. 207, 137 A.2d 232 (1927) (client’s prior failure to object to attorney’s unauthorized practice of collecting principal payments ratified act and prohibited client from asserting lack of express authority when attorney kept subsequent payment); Zidek v. West Penn Power Co., 145 Pa. Superior Ct. 103, 20 A.2d 810 (1941) (express settlement not invalidated by attorney’s forged release and failure to inform client of settlement); Himes v. Herr, 3 Pa. Superior Ct. 124 (1869) (longstanding attorney/client relationship warranted assumption that debt could be paid to attorney; client ratified attorney’s act by accepting deed from attorney in satisfaction of claim); Appeal of Scott Township, 31 Pa. Commonwealth Ct. 505, 377 A.2d 826 (1977) (accepting a $10,000 tax rebate resulting from settlement agreement ratified attorney’s unauthorized act). Nothing in the present record, however, indicates that appellee’s relationship with his attorney was of the type or duration described in these cases, or that he benefited from or ratified the settlement.

      . Citing Murdoch v. Murdoch, 418 Pa. 219, 210 A.2d 490, appellants contend appellee did not meet his burden of proving fraud. In Murdoch, the unsuccessful client had acknowledged and accepted a settlement in 1958 and was attempting to set it aside in 1962. She stated that pertinent information had been withheld from her, and implied that her attorney may have had conflicting interests, causing her to settle her claim for less than one-quarter its value. She offered no proof that the missing information had been sought, or that she would not have been able to obtain it independently, nor did she substantiate her conflict of interest claim. In this case, appellee denies all knowledge of the settlement, and complied with the requirements of Pa.R.Civ.P. 209, by going forward with his deposition after appellants denied the forgery. Appellants were represented at the deposition and did not challenge or rebut appellee’s testimony. Although appellee may have been well-advised to introduce expert testimony regarding the forgery or to depose his former attorney, the record adequately supports the lower court finding.

      . The amicus curiae contends we should adopt the reasoning of several jurisdictions which do not permit a client to avoid unauthorized, consummated settlements. Seybert v. Robert E. Lee Pontiac, Inc., 244 F.Supp. 184 (E.D.Pa.1965) (purportedly applying Pennsylvania law); Cohen v. Goldman, 85 R.I. 434, 132 A.2d 414 (1957); Crouch v. Fisher, 43 Ga.App. 484, 159 S.E. 746 (1931); Belheumer v. Thomas, 78 Vt. 279, 62 A. 719 (1906). Accord, Parker v. Board of Trustees of Southern Illinois University, 74 Ill.App.2d 467, 220 N.E.2d 258 (1966) (client bound by judgment based upon stipulations made by attorney without authorization; client’s only remedy was to sue attorney). But cf., Whittier Union High School District v. Superior Court, 66 Cal.App.3d 504, 136 Cal.Rptr. 86 (1977) (voluntary dismissal set aside but defendant entitled to offset amount paid in settlement against any subsequent judgment for plaintiffs); Nehleber v. Anzalone, 345 So.2d 822 (Fla.Dist.Ct.App.1977) (unauthorized, consummated settlement does not bar client’s action on underlying claim). We decline to do so for several reasons. In Crouch, the Georgia court did not discuss the facts or its reasoning in detail, choosing instead to rely on Patterson v. Southern Railway Co., 41 Ga.App. 94, 151 S.E. 818 (1930), in which the attorney/client relationship was longstanding, giving rise to apparent settlement authority, and the client ratified the settlement by choosing to sue for the amount of money paid his attorney rather than reopening the original action. In Beiheumer, the client actually signed the release, albeit unaware of its import. 78 Vt. at 280, 62 A. at 720. Only Cohen fits squarely within the facts of this instant case, but it was based on Rhode Island agency law, 85 R.I. at 439, 132 A.2d at 417, contrary to the Pennsylvania rule that a principal is not liable for the unauthorized, fraudulent acts of an agent absent the principal’s scienter, Shane v. Hoffman, 227 Pa. Superior Ct. 176, 324 A.2d 532 (1974). Additionally, this Commonwealth has long required express authority for an attorney to settle a claim, displacing appellants’ and the amicus’ reliance upon Seybert, a cursory opinion which misconstrued Pennsylvania precedents. If such longstanding rules are to be abrogated, we believe the decision rests with our Supreme Court.

      . We express no view as to whether any party or appellants’ insurer can successfully recover on the instrument for payment over a forged endorsement. See, 13 Pa.C.S.A. § 3419(a)(3); Zidek v. Forbes National Bank, 159 Pa. Superior Ct. 442, 48 A.2d 103 (1946).


author:
WIEAND, Judge:
      JOHNSON, Judge,
      SPAETH, Judge,

text:
    451 A.2d 229
    SCHUYLKILL PRODUCTS, INC., Appellant, v. H. RUPERT & SONS, INC., International Fidelity Insurance Company, United Bonding Insurance Company and Emmco.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1981.
    Filed Sept. 24, 1982.

      William D. Hutchinson, Pottsville, for appellant.
    John Arnold Crisman, Berwick, for appellees.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

May a materialman maintain a direct action against a reinsurer who has contracted with the surety on a contractor’s bond to insure any loss which the surety may be called upon to pay? The trial court held that such an action could not be maintained and sustained preliminary objections in the nature of a demurrer to the materialman’s second amended complaint. We affirm.

H. Rupert & Sons, Inc., (Rupert) entered a written contract to perform work for the Bloomsburg Sewer Authority. Schuylkill Products, Inc., the appellant herein, was a materialman who supplied sewer pipe to Rupert. In this action, appellant alleged that Rupert was indebted to it for materials sold and delivered in the amount of $7,407.

Prior to the commencement of work, Rupert delivered to the Authority a public works contractor’s bond, with surety, providing security for costs of labor and materials. The co-sureties on that bond were United Bonding Insurance Company and Prudence Mutual Casualty Company. An affidavit attached to the bond recited:

That Treaties of (automatic) Reinsurance now exist between the Prudence Mutual Casualty Company and certain other surety companies by which the liability assumed by said Company under the Bond above described, is Reinsured in accordance with the following percentages, or in the following “Limits of Availability” (or, by Specific Facultative Reinsurance):
Reinsurers and Participants Amount Available Amount Reinsured
1) International Fidelity-Ins. Co. Newark, New Jersey $ 62,300.00 $ 42,000.00
2) Allegheny Mutual Casualty Company Meadville, Pennsylvania 110,000.00 63.000. 00
3) United Bonding Insurance Company Indianapolis, Indiana 100,000.00 60.000. 00
4) Home Owners Insurance Company Minneapolis, Minnesota 130,000.00 60,000.00
5) Prudence Mutual Casualty Company Chicago, Illinois 110,350.00 63.000. 00
6) Emmco Insurance Company South Bend, Indiana 2,900,000.00 180,000.00
7) Wisconsin Surety Company Madison, Wisconsin 48,000.00 42.000. 00

One of the defendants named in appellant’s second amended complaint was International Fidelity Insurance Company. It caused preliminary objections in the nature of a demurrer to be filed on the grounds that it was a reinsurer whose contract was with a surety. However, it had no contract with and no obligation to pay appellant. The trial court agreed, and this appeal followed.

In order to sustain preliminary objections in the nature of a demurrer and dismiss the complaint without leave to amend, “it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.” Harley Davidson Motor Co., Inc. v. Hartman, 296 Pa.Super. 37, 41, 442 A.2d 284, 285-286 (1982) quoting Schott v. Westinghouse Electric Corp., 436 Pa. 279, 282, 259 A.2d 443, 445 (1969). Accord: Otto v. American Mutual Insurance Company, 482 Pa. 202, 205, 393 A.2d 450, 451 (1978); Longo v. Rago, 287 Pa.Super. 509, 510, 430 A.2d 1006, 1007 (1981).

Appellant contends that a reinsurer on a surety bond issued under the Public Works Contractors’ Bond Law is a proper party defendant in an action by an unpaid supplier. The law is clear, however, that there is no right of direct action against a reinsurer by any party except the reinsured. “[T]he ordinary contract of reinsurance operates solely between reinsured and reinsurer, and creates no privity whatever between reinsurer and the persons originally insured, the contract of insurance and that of reinsurance remain totally distinct and unconnected, and reinsurer is in no respect liable, either as surety or otherwise, to reinsured’s policyholders; and accordingly they have no right of action against reinsurer on the contract of reinsurance, nor have they any right of action against reinsurer to reform the policy.” 46 C.J.S., Reinsurance, § 1232.

The rule in Pennsylvania is in accord: “Re-insurance is properly applied to an insurance effected by one underwriter with another, the latter wholly or partially indemnifying the former against the risks which he has assumed; that is to say, after an insurance has been effected, the insurer may have the subject of insurance re-insured to him by some other. There is in such case, however, no privity between the original insured and the re-insurer; the latter is in no respect liable to the former, as a surety or otherwise, the contract of insurance and of re-insurance being totally distinct and disconnected.” Appeal of Goodrich, 109 Pa. 523, 529, 2 A. 209, 211 (1885) (emphasis supplied).

This view is shared almost unanimously by the courts of other jurisdictions which have considered actions by an insured against a reinsurer. See Morris and Company v. Skandinavia Insurance Co., 279 U.S. 405, 408, 49 S.Ct. 360, 361, 73 L.Ed. 762 (1929); Citizens Casualty Company of New York v. American Glass Company, 166 F.2d 91, 94 (7th Cir. 1948); Taggart v. Keim, 103 F.2d 194, 197-198 (3rd Cir. 1939); United States to the Use of Colonial Brick Corp. v. Federal Surety Co., 72 F.2d 964, 967 (4th Cir. 1934), cert. denied, 294 U.S. 711, 55 S.Ct. 508, 79 L.Ed. 1245 (1935); American Cast Iron Pipe Co. v. Statesman Insurance Co., 343 F.Supp. 860 (D.Minn.1972); Appeal of Goodrich, supra; Fontenot v. Marquette Casualty Co., 258 La. 671, 247 So.2d 572 (1971); In Re Security General Insurance Co., 82 S.D. 47, 140 N.W.2d 676 (1966); Winneshiek Mutual Insurance Asso. v. Roach, 257 Iowa 354, 366, 132 N.W.2d 436, 444 (1965); Crozier v. Lenox Mutual Insurance Asso., 252 Iowa 1176, 1181, 110 N.W.2d 403, 406 (1961); Melco System v. Receivers of Trans-America Insurance Co., 268 Ala. 152, 157-158, 105 So.2d 43, 46-47 (1958); Appeal of Schunk, 231 Minn. 219, 222-223, 43 N.W.2d 104, 108-109 (1950); Pink v. American Surety Company, 283 N.Y. 290, 28 N.E.2d 842 (1940); American Bonding Co. v. American Surety Co., 127 Va. 209, 218, 103 S.E. 599, 602 (1920); Moseley v. Liverpool & London & Globe Insurance Co., 104 Miss. 326, 337, 61 So. 428, 430 (1913); Vial v. Norwich Union Fire Insurance Society, 257 Ill. 355, 357, 100 N.E. 929, 930 (1913); Barnes v. Hekla Fire Insurance Co., 56 Minn. 38, 40, 57 N.W. 314, 314 (1893). See also 19 Couch on Insurance 2d § 80.66; 13 A. Appleman, Insurance Law and Practice §§ 7681, 7694; Annotation, Who May Enforce Liability of Reinsurer, 103 A.L.R. 1485-(1936).

We perceive neither practical nor policy reason for altering this rule in cases of reinsurers who contract with sureties on contractors’ bonds. The appellant, a material-man, cpntracted with Rupert, the contractor, and is protected by the bond, with sureties, which the contractor filed. The contract of reinsurance was between one of the sureties and appellee and, in the absence of language creating rights in third persons, vested no rights in appellant. Thus, appellant cannot maintain the present action against appellee, a reinsurer.

Appellant argues in the alternative that International Fidelity Insurance Company should be estopped from asserting its status as a reinsurer rather than a co-surety on the bond. This requires that we review the history of the proceedings in the court below.

Appellant’s original complaint was filed on June 26, 1974. It contained an incorrect averment that the attached bond had been executed by appellee as co-surety with' United Bonding Insurance Company. Despite the fact that an examination of the bond would have disclosed that it had not been executed by appellee, the answer contained an admission that appellee had executed the bond as co-surety. Appellee’s defense, set forth in “new matter,” was the statute of limitations of one year contained in the Public Works Contractors’ Bond Law at 8 P.S. § 197. The error was discovered during a pre-trial conference. Appellee thereafter requested and was granted leave of court to withdraw its answer and file preliminary objections nunc pro tunc. Appellant then requested and received leave to file an amended complaint. An amended complaint was filed, and preliminary objections thereto were argued and sustained with leave to appellant to file another amended complaint. See Schuylkill Products, Inc. v. H. Rupert & Sons, Inc., 13 D. & C.3d 324 (Columbia Co. 1980).

When the second amended complaint was filed, with copy of bond and affidavit attached, it contained an averment that appellee was estopped from asserting that it was not a co-surety and merely a reinsurer. In support of this conclusion, appellant alleged that appellee’s counsel had advised appellant that appellee was a principal surety. It was also alleged that appellant had relied thereon and had failed to discover that appellee was not a signatory to the bond. Preliminary objections were again sustained, this time without leave to file further amended pleadings.

An “estoppel arises when one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.” In Re Estate of Tallarico, 425 Pa. 280, 286, 228 A.2d 736, 741 (1967) quoting Northwestern National Bank v. Commonwealth, 345 Pa. 192, 196, 27 A.2d 20, 23 (1942) (emphasis supplied). However, “[a]n estoppel does not arise where both parties are ignorant of the truth; the statement upon which an estoppel may be based must have been made with a fraudulent purpose.” Maurer v. International Union United Automobile, Aerospace and Agricultural Implement Workers of America, 487 F.Supp. 731, 738 (M.D.Pa.1979) (applying Pa. law) (citations omitted). Moreover, “[tjhere can be no equitable estoppel where the complainant’s act appears to be rather the result of his own will or judgment than the product of what defendant did or represented. The act must be induced by, and be the immediate or proximate result of, the conduct or representation, which must be such as the party claiming the estoppel had a right to rely on. The representation or conduct must of itself have been sufficient to warrant the action of the party claiming the estoppel. If notwithstanding such representation or conduct he was still obliged to inquire for the existence of other facts and to rely on them also to sustain the course of action adopted, he cannot claim that the conduct of the other party was the cause of his action and no estoppel will arise .... [A] party may not properly claim that an estoppel arises in his favor from his own ommission or mistake.” Northwestern National Bank v. Commonwealth, supra 345 Pa. at 197, 27 A.2d at 23 (emphasis supplied). Accord Goodwin v. Hartford Life Insurance Company, 491 F.2d 332, 334 (3rd Cir. 1974) (applying Pa. law); American Kitchen Foods Incorporated v. Hersch Cold Storage Company, 435 F.Supp. 1127, 1132-1133 (W.D.Pa.1977) on reconsideration 449 F.Supp. 34 (W.D.Pa.1978); In Re Estate of Watt, 409 Pa. 44, 65-66, 185 A.2d 781, 792 (1962); Cerami v. Dignazio, 283 Pa.Super. 424, 436-437, 424 A.2d 881, 888 (1980); Livingston v. Livingston, 275 Pa.Super. 285, 292, 418 A.2d 724, 728 (1980); Cheltenham National Bank v. Snelling, 230 Pa.Super. 498, 504, 326 A.2d 557, 560 (1974), cert. denied, 421 U.S. 965, 95 S.Ct. 1955, 44 L.Ed.2d 453 (1975).

In the instant case, appellant had attached a copy of the contractor’s performance bond to its initial complaint. That copy readily disclosed upon even cursory examination that appellee had not signed the bond and was not a principal surety but only a reinsurer. Appellant could not properly rely upon alleged conclusory averments of appellee’s counsel when it had in its possession the written contract which disclosed that appellee was not a principal party. In this action, therefore, it cannot establish a “lack of knowledge and of the means of knowledge of the truth as to the facts in question.” Goodwin v. Hartford Life Insurance Company, supra at 334, quoting In Re Estate of Watt, supra 409 Pa. at 65-66, 185 A.2d at 792. Finally and significantly, with the means available to determine the true facts and proceed accordingly, appellant is unable to show prejudice. The trial court correctly held that appellee was not estopped from asserting in preliminary objections its status as a reinsurer. That status was obvious from the documents attached to appellant’s second amended complaint.

The judgment is affirmed.

JOHNSON, J., files a concurring opinion.

SPAETH, J., files a dissenting opinion.

JOHNSON, Judge,

concurring:

I agree with Judge WIEAND in his conclusion that, on the facts of the instant case, the judgment should be affirmed. However, I cannot join in that part of his opinion which states that a reinsurer is in no respect liable to the original insured.

In the instant case, Appellant filed suit against, inter alia, International Fidelity Insurance Company (Fidelity), based on a public works contract. The record clearly indicates that despite Fidelity’s erroneous averment, Fidelity was solely a reinsurer of the contract between Appellant and H. Rupert & Sons, Inc. and not a co-surety. I therefore agree with J. WIEAND’S opinion that (1) Fidelity was solely a reinsurer of the original contract, (2) Appellant’s estoppel argument lacks merit and (3) the judgment should be affirmed, based on the facts of the case.

However, there are situations that I foresee where the original insured should be permitted to sue a reinsurer directly. An example would be where an agency relationship exists between the reinsured (the original insurer) and the reinsurer and the reinsurer has significant control over the actions of the original insurer. In such a case, the fact that the insurance company with control is labeled a “rein-surer” should not necessarily relieve it of liability on contractual actions arising out of certain conduct of the “rein-surer”, e.g., bad faith.

The instant facts do not lead me to the conclusion that Fidelity had, for example, any agency relationship with H. Rupert & Sons, Inc., nor does Appellant allege any fact that would lead me to the conclusion that Appellant’s suit should be permitted.

Therefore, although I agree with the result in the instant case, I cannot join that portion of Judge WIEAND’S opinion concerning the validity of the rule disallowing any action by an original insured against a reinsurer.

SPAETH, Judge,

dissenting:'

I am unable to subscribe to the majority’s holding that appellant, the original insured, may not bring a cause of action against its reinsurer. The traditional rule barring such actions has been more often invoked than examined. The majority states that it can “perceive neither practical nor policy reason[s] for altering this rule,” at 232, but I submit that there are such reasons, and that the rule should be reexamined and abandoned.

The traditional rule grew up in the 1800’s, as the vintage of the authority cited by the majority indicates, when reinsurance and insolvency of insurance companies were not common. Today, reinsurance is common. One commentator considers it essential on major risks. Thompson, Critical Issues of the Eighties: How Trends in Reinsurance Will Affect Legal, Legislative, and Regulatory Actions, 26 Forum 1038, 1039 (1981) [hereinafter “Trends in Reinsurance”]. Insolvency of insurance companies is also, if not common, at least not rare, and the majority of states have enacted legislation designed to compensate insureds in the event of an insolvency. Shulman, Reinsurance: A Primer for the Practitioner, 3 L.A.Law. 34, 36 (1980). Thus the practical considerations in support of the traditional rule have changed.

The law has changed, too. The rationale of the traditional rule, relied on by the majority, is that there is no privity between the insured and the reinsurer. At 231. See 44 Am.Jur.2d, Insurance § 1877 (1969). But as appellant argues, the doctrine of privity, has been “largely discredited.” Appellant’s Brief at 15.

A look at the doctrine of privity in products liability law is instructive. From the 1800’s until about 1916, the doctrine was invoked to prevent persons injured by defective products from suing the manufacturer of the product. In MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), Justice CARDOZO, observing that “[precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day,” supra at 391, 111 N.E. at 1053, held that a person injured as a result of a defective automobile tire had a right of action against the manufacturer of the tire, despite the lack of privity. The rationale was that the manufacturer expected that its product would be used in a certain manner, and was in a better position than the innocent consumer to know of the potential danger. This decision has been regarded as the impetus for changes in the law “responsive to ever-growing pressure for protection of the consumer coupled with a realization that liability would not unduly inhibit the enterprise of manufacturers and that they were well placed both to profit from its lessons and to distribute its burdens.” James, Products Liability, 34 Tex.L. Rev. 44 (1955). See Keeton, Owen, Montgomery, Products Liability and Safety, 41-55 (1980).

Similar policy considerations argue against invoking the doctrine of privity here. First, the reinsurer’s expectations are not disturbed if a suit by an original insured is brought directly against it, in the case of the intermediary’s insolvency, because the reinsurer was presumably prepared to pay anyway. In fact, in exchange for its accepting its share of the risk, the reinsurer typically “receives from the ceding company [the intermediate insurance company] an agreed percentage of the premiums, or a negotiated amount, payable to the ceding company by the insured.” Shulman, Reinsurance: A Primer for the Practitioner, 3 L.A.Law. 34 (1980). Second, like the product manufacturer, the reinsurer is often in a better position than the original insured to know the financial health of the insurance company, and, unlike the insured, can consider this in entering into the reinsurance agreement. Finally, the original insured may well go uncompensated in the event of insolvency of his insurance company if suit against the reinsurer is not permitted. Here, although the majority states that appellant “is protected by the bond, with sureties, which the contractor filed,” at 232, it is not evident that that is so. If it were, why would appellant file this suit? In any case, the majority’s argument proves too much: accept it, and MacPherson would have been decided the other way.

In this regard, it may be noted that the provisions of the Pennsylvania Insurance Guaranty Association Act, Act of Nov. 25, 1970, P.L. 716, N. 232, Art. 1, § 101, 40 P.S. § 1701.101 et seq. do not afford as direct a remedy for insureds as a suit against the reinsurer, given the Act’s prerequisites to recovery. See, Sands v. Pa. Ins. Guaranty Ass’n, 283 Pa. Superior Ct. 217, 423 A.2d 1224 (1980). Moreover, why should the Association, to which all property and casualty carriers are required to belong, be compelled to deplete its funds to pay an insured, when a specific reinsurer has been receiving premiums indirectly from the insured, and when that reinsurer accepted the risk of entering into a reinsurance agreement with a financially unsound insurance company? Surely the reinsurer is the party that should in fairness absorb the risk, and the one that can most effectively prevent it from occurring.

In addition to the lack of privity, one other reason has been advanced for barring the insured from an action against the reinsurer. It has been said that “[t]he theory behind precluding the original insured party from suing the reinsured directly is that such a party usually has no knowledge of the reinsurance contract and cannot claim that it relied upon such a contract . . . .” Housing Authority of Lebanon v. Envirohousing, 442 F.Supp. 1193, 1196 (M.D.Pa. 1978). Here, however, appellant knew of the existence of the reinsurance agreement, for the agreement was attached to the contractor’s bond. Thus, appellant reasonably expected that it was “doubly protected” by insurance company and reinsurer—it argued in fact that it thought the reinsurer was a co-surety—and yet the majority defeats that expectation by preventing appellant from asserting the reinsurer’s obligation. In my view, we should uphold appellant’s reasonable expectations. See Keeton, Insurance Law § 6.3(a) (1971) (discussing the importance of honoring the reasonable expectations of the insured). As one commentator explains,

Despite the general principle of law that the policyholder has no right to seek payment directly from a reinsurer, it should be evident that reinsurance can be a mainstay behind the original policy. The individual who purchases insurance is fortified by a virtual network of reinsurance companies. For example, an individual who purchases a $10 million policy may trigger the interrelationship of American and international capital; the insurance company may retain a small portion of the original policy it has written and pass on the balance to an American reinsurer or several American reinsurers who may choose to retain a part of that risk and, in turn, pass the remainder to markets throughout the world. Therefore, the original insured’s security has become international. When this is multiplied by the many sets of reinsurance relationships, the economic life of the general public is strengthened and both trade and industry are enhanced.
Thompson, Trends in Reinsurance, supra at 1043.
I should reverse the order of the lower court.

      . See Public Works Contractors’ Bond Law, Act of December 20, 1967, P.L. 869, § 1, 8 P.S. § 191 et seq.

      . Although the second amended complaint contained an averred conclusion that International Fidelity Insurance Company was a co-surety, the copy of the bond and attached affidavit which were attached to the complaint establish beyond peradventure of a doubt that appellee was a reinsurer and not a co-surety. In cases of such contradictions, it is the attached documents which are controlling. See Eberhart v. Nationwide Mutual Ins. Co., 238 Pa.Super. 558, 564 n.6, 362 A.2d 1094, 1097 n.6 (1976); Framlau Corp. v. County of Delaware, 223 Pa.Super. 272, 277, 299 A.2d 335, 338 (1972); McCoy v. Home Insurance Co., 170 Pa.Super. 38, 42, 84 A.2d 249, 251 (1951). See also Goodrich-Amram 2d § 1019(h):2.

      . This section was repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1413], effective June 27, 1978.


author: SPAETH, Judge: MONTGOMERY, Judge,

text:
    451 A.2d 236
    COMMONWEALTH of Pennsylvania v. Tyrone ELDER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 8, 1981.
    Filed Oct. 1, 1982.

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

Appellant was convicted by a judge of receiving stolen property and retail theft and was sentenced to a minimum of two years and a maximum of four years imprisonment. He argues on appeal, inter alia, that the lower court erred in admitting his oral confession before the Commonwealth had proved the corpus delicti of the crime. We agree, and therefore grant appellant a new trial.

The corpus delicti must be proved before a confession may be admitted into evidence. Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980); Commonwealth v. Daniels, 281 Pa.Superior Ct. 334, 422 A.2d 196 (1980). The reason for this requirement is “rooted in a hesitancy to convict one of crime on the basis of his own statements only.” Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974).

To prove the corpus delicti, the Commonwealth must show that an injury or loss has occurred, and that criminal activity caused the injury or loss. Commonwealth v. Ware, supra. Proof that the accused was the perpetrator of the crime is not required. Commonwealth v. Turza, 340 Pa. 128, 16 A.2d 401 (1940). The corpus delicti may be proved by circumstantial evidence. Commonwealth v. Brogan, 270 Pa. Superior Ct. 197, 411 A.2d 248 (1979). What constitutes sufficient circumstantial evidence has been defined by the Supreme Court as follows:

Although independent corroborative evidence is insufficient if it is equally as consistent with accident as with crime, Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967), the prosecution has no duty to exclude the possibility of an accident in order to establish the corpus delicti. Commonwealth v. Moore, 466 Pa. 510, 515, 353 A.2d 808, 810 (1976) [other citations omitted].
Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173, 179 (1980).

The Commonwealth sought to prove the corpus delicti by the testimony of Linda Jackson. (Its only other witness was the detective who took appellant’s statement.) Ms. Jackson’s testimony may be summarized as follows: She is the manager of the furniture department at one of the Lord & Taylor stores. As manager she must keep track of items coming into and leaving the furniture department, which encompasses the rug department, and make “audits” of the inventory every six months. N.T. 4/21/80, 7-8. The rug department received the rug in question, style number 2B121, on October 6, 1977. Id. 10. She conducted an audit on June 27, 1979, and again on January 5, 1980. Id. 11-12. She testified, and the inventory sheets admitted into evidence showed, that the rug in question appeared at the June audit but not at the January audit. Id. 9-12. She also testified that other items were missing from the January audit but that “they have since been located at another Lord & Taylor store.” Id. 15.

The Commonwealth argues that “the logical inference which arises from Ms. Jackson’s testimony is that someone stole the rug in question.” Appellee’s Brief at 5. Under the test stated in Commonwealth v. Byrd, supra, this would mean that the inferences from Ms. Jackson’s testimony are not “equally as consistent with accident as with crime.” In other words, under Byrd the Commonwealth is not entitled to draw an inference that the rug was stolen unless that inference is stronger than the inference that appellant would draw—that it was lost.

In Byrd the Supreme Court illustrated its meaning by citation to Commonwealth v. Leslie, supra, as a case in which the evidence was insufficient to support an inference of loss caused by crime, and Commonwealth v. Moore, supra, as a case in which the evidence was sufficient. We think this case is much more like Leslie than Moore.

In Leslie, the loss was a burned building, and the charge was arson. The proof that criminal activity caused the loss was testimony of an expert, a deputy fire marshall, who had examined the site of the fire. The expert testified that he had found nothing to indicate that the fire was caused deliberately, but said, “I couldn’t find any way where the building could have gone spontaneously and in my investigation I felt it was other than an accidental fire, and I pursued it further.” 424 Pa. at 332, 227 A.2d at 902. The Court held this to be insufficient proof that criminal activity caused the fire, for the expert’s testimony “reveal[ed] that he had only a mere suspicion that the fire was caused by other than accident or natural causes.” Id., 424 Pa. at 335, 227 A.2d at 903. The evidence, therefore, was “equally as consistent with accident as with crime,” Commonwealth v. Byrd, supra.

Moore also involved an arson. In that case, the proof that criminal activity caused the loss was testimony of a witness who had heard the sounds of a scuffle before the fire broke out, and testimony of an expert on the causes of fires. The expert testified that the type of fire and its burn pattern indicated that “the fire was probably incendiary because the usual causes of accidental fires were not present,” even though it “could have been started accidentally.” 466 Pa. at 514, 353 A.2d at 810. The Court held this evidence sufficient, distinguishing Leslie on the basis of the difference in the experts’ testimony. Id., 466 Pa. 515-516 n. 3, 353 A.2d at 810 n. 3.

Ms. Jackson’s testimony established only that the rug was lost. She did not testify at all about the cause of the loss as did the expert in Moore. She did not even express a suspicion, as did the expert in Leslie. The Commonwealth asks us to infer from her testimony that the cause of loss was theft, but that inference is no more persuasive than that the cause of loss was accident. Indeed, the inference of theft is arguably less persuasive than the inference of accident, given Ms. Jackson’s testimony that the other items missing at the January audit “have since been located” at another store.

The correctness of our conclusion is confirmed by Commonwealth v. Gibson, 201 Pa.Superior Ct. 573, 193 A.2d 690 (1963), which also involved inventory loss. In Gibson, a company’s stock of drugs was inventoried on a daily basis. The loss was discovered on a Monday. The last inventory had been on the Friday afternoon before the weekend preceding the loss. The defendant, the shipping supervisor, was one of 36 employees having access to the stock, and was the only employee on the premises over the weekend. The Commonwealth also showed that a burglar alarm system protected most of the windows, and those not protected had not been tampered with or disturbed. Clearly, this circumstantial evidence that criminal activity caused the loss was far stronger than the evidence here. Here, not only did the evidence suggest that the rug might have disappeared because, like other items, it had accidentally been sent to another store, but the audits were conducted only every six months, and during that time, others than appellant had access to the stock.

In its opinion the lower court states, in support of its ruling that the Commonwealth proved the corpus delicti, that “The Pre-Sentence Investigation Report . . . amplified the evidence introduced at trial .. .. ” The court then cites the report as saying that “an employee . . . saw [appellant] leave the rug department with the oriental.” The court concludes by saying, “No reason appears in the record as to why this employee was not introduced as a witness.” Slip op. at 4, n. 1. Since the employee was not introduced as a witness, the statement of what she saw is not evidence; it did not “amplif[y] the evidence introduced at trial;” and it should not have been cited by the lower court.

The judgment of sentence is reversed and the case is remanded for trial.

MONTGOMERY, J., files a dissenting statement.

MONTGOMERY, Judge,

dissenting:

I respectfully dissent as I believe that the facts set forth in the majority opinion support the trial court’s determination that the corpus delicti was proved and appellant’s confession properly admitted. I would affirm the judgment of sentence.

      . Because of our disposition of this issue, we do not consider the other issues raised by appellant.