author: TAMILIA, Judge:

text:
    502 A.2d 206
    Emmanuel JOHNSON, a Minor, by His Parent and Natural Guardian, Emma JOHNSON and Emma Johnson in Her Own Right, Appellant v. The TRAVELERS.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1985.
    Filed Dec. 13, 1985.

      Paul M. Perlstein, Philadelphia, for appellant.
    George S. Donze, Philadelphia, for appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, CIRILLO, OLSZEWSKI, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

On June 26, 1981, appellant Emmanuel Johnson, a minor, was struck by an uninsured motor vehicle, sustaining injuries for which he and his mother, appellant Emma Johnson, sought compensation under the Pennsylvania Assigned Claims Plan, (PACP). Because no settlement could be reached with the designated obligor/appellee, Travelers Insurance Co., appellants sought binding arbitration. Their demand was never acknowledged by appellees, and a subsequent Petition to Compel Arbitration was denied by the lower court. This appeal followed, presenting us with the question of the procedure to be followed by a victim seeking to enforce his rights to uninsured motorist benefits.

Prior to reaching the procedural issue which is the crux of this appeal, however, we must address the threshold question presented by appellee’s motion to dismiss for failure to file exceptions to the trial court’s order refusing to appoint an arbitrator. Appellees argue that Distler v. Pa. Assigned Claims Plan, 318 Pa.Super. 487, 465 A.2d 658 (1983), and Jones v. State Automobile Ins. Assoc., 309 Pa.Super. 477, 455 A.2d 710 (1983) present the governing authority. The latter case held that an action for benefits under the No-Fault Insurance Act cannot be by petition and rule, but must be commenced by complaint in assumpsit, and therefore, necessarily involves adherence to Rule 1038, which requires the filing of exceptions in order to preserve issues for appellate review. Distler posits a corollary to this rule, which states that the erroneous filing of a no-fault benefits petition is a waivable defect. In neither of these cases, however, was the issue, as here, one concerning the requisite procedural sequitur to a demand for arbitration. In Distler, the issue was the appointment of an insurance company to represent an uninsured motorist claim, and in Jones, it was the propriety of utilizing petition and rule to commence an action for first party no-fault benefits.

Appellee assumes, somewhat prematurely, that because arbitration is an inappropriate means of resolution in the circumstances of this case, that its impact as a factor in these proceedings is negligible in all respects.

This issue is directly addressed by 42 Pa.C.S.A § 7320(a)(1), which provides that:

§ 7320. Appeals from court orders
(a) General rule. — An appeal may be taken from:
(1) A court order denying an application to compel arbitration made under section 7304 (relating to proceedings to compel or stay arbitration).

This section is similarly applicable to common law arbitration, see 42 Pa.C.S.A. § 7342(a), although its reverse is not true. See Gardner v. Prudential, 332 Pa.Super. 358, 481 A.2d 654, 655 (1984).

Haegele v. Pa. General Ins. Co., 330 Pa.Super. 481, 479 A.2d 1005 (1984) provides us with a persuasive analogue. In Haegele, this Court found that a petitioner, whose request to vacate or modify an arbitrator’s award had been denied, need not file exceptions to the denial Order, since the action was governed by petition practice, which was in turn the proper avenue of relief for arbitration problems.

What becomes crucial then is the subject matter of the petition, that is arbitration, rather than its appropriateness as a procedural vehicle. Once a question of arbitration arises it activates, according to the nature of the claim, either the petitioning mechanism of Haegele if arbitration has occurred, or, if arbitration is sought and denied, the immediate appeal approved by the Rule. The existence of a petition, in and of itself, is insufficient as a determinant of what must properly follow. We, therefore, deny appellees’ motion to quash this appeal.

As to the merits of this appeal, appellant bases his argument on the landmark case of Tubner v. State Farm Mutual Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981). In that case, our Supreme Court interpreted the No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq. (repealed eff. October 1, 1984), as requiring assigned insurers to pay both basic loss and uninsured motorist benefits as if a policy of insurance had been issued including both types of coverage (40 P.S. § 1009.108(b)). Applying the theory of implied contract as his major premise, appellant reasons, using regulatory language of the Pennsylvania Code, that, “all basic loss policies issued in Pennsylvania must also provide for binding arbitration to resolve disputes regarding the entitlement to uninsured motorist benefits, a fortiori, the right to Tubner mandated uninsured motorist benefits must be enforced exclusively by binding arbitration.” (Appellant’s brief at 5). Although appellant’s logic is syllogistically sound, its conclusion misses the mark.

There are two reasons for this. The first is that "... the statute that requires uninsured motorist coverage, Act of Aug. 14, 1963, as amended, 40 P.S. § 2000(a), does not require arbitration, and we have held that in the absence of statutory requirement, arbitration may not be required by regulation. Ellison v. Safeguard Mutual Ins. Co., 209 Pa.Super. 492, 229 A.2d 482 (1967).” Hiller v. Allstate Ins. Co., 300 Pa.Super. 149, 151 n. 1, 446 A.2d 273, 274 n. 1 (1982). (Emphasis added). “As a general rule, questions under an uninsured motorist clause with an arbitration provision are within the exclusive jurisdiction of the arbitrators” (citations omitted). White v. Concord Mutual Insurance Co., 296 Pa.Super. 171, 175, 442 A.2d 713, 715 (1982) (underinsured is not to be equated with uninsured). See also State Farm Insurance Co. v. Bullock, 316 Pa.Super. 475, 463 A.2d 463 (1983) (insolvency of defendant’s insurance company permits recovery by plaintiff under her uninsured motorist coverage and is subject to arbitration). However, the courts will take jurisdiction if the claimant attacks a particular provision of the clause “as being contrary to a constitutional, legislative, or administrative mandate.” White, supra, 296 Pa.Superior Ct. at 176, 442 A.2d at 713, 716. In a similar fashion, where the essential ingredient to trigger the operation of a statute, the clause in a contract requiring arbitration of an uninsured motorist’s claim, is absent, as there is no contract of reference, the No-Fault Statute Assigned Claims Plan, 40 P.S. § 1009.-108, and the uninsured motorists coverage, 40 P.S. § 2000(a), cannot be read together as having the missing ingredient (contract) supplied by an insurance department regulation. Ellison, supra. In Tubner, relied upon by appellant, it is true that the claimant was an uninsured victim of an uninsured driver and that the Supreme Court held that such a claim, in addition to basic loss benefits, qualified for uninsured motorist benefits under the assigned claims plan, as coverage which would have been required had there been a policy of insurance. This was determined to be the intent of the no-fault legislation. “Because assigned insurers are obligated precisely as if they had issued basic loss insurance policies, and because every policy of basic loss insurance issued in Pennsylvania must include uninsured, motorist coverage, the right to uninsured motorist benefits under the assigned claims plan follows a fortiori from a straightforward reading of the statute and the regulation lawfully promulgated thereunder.” Modesta v. SEPTA, 503 Pa. 437, 443 n. 6, 469 A.2d 1019, 1023 n. 6 (1983), quoting Tubner, supra, 496 Pa. at 219, 436 A.2d at 623. This language makes clear the position we must adopt here, that is, the extent of coverage is determined by the statute and while the statute may infer a policy of insurance, Tubner, supra, where it is silent as to the procedure for recovery, this may not be inferred in derogation of constitutional rights. Thus while the legislation provided for coverage, no where in the No-Fault Act or the Uninsured Motorists Coverage Act is there a provision requiring arbitration when a policy of insurance did not, in fact, issue, containing a clause requiring arbitration.

To require by regulation what the legislature omitted from statute is an unlawful delegation of powers to the insurance commissioner. “When the General Assembly failed to include this essential [arbitration] requirement in its enactment neither the executive nor the judiciary may under the guise of interpretation or public policy apply it.” Ellison, 209 Pa.Superior Ct. at 496, 229 A.2d at 484. Further, as the lower court points out, “we cannot abridge defendant’s constitutional right to a trial by jury where no actual contract exists between the parties.” (Slip Op. at 3). Nor, in fact, may the legislature, through the proxy of the Insurance Commission regulation, infringe upon that right.

It is clear that although the benefits conferred upon the victims of motor vehicle accidents by the Tubner decision are consistent with the legislative policy motivating the No Fault Act, the aim of that Act was not to penalize obligors, assigned or contractual, but simply to provide basic coverage for all "... motor vehicle accident victims and the survivors of deceased victims.” 40 P.S. § 1009.102(b). While this intention, once implemented, may incidentally inure to the detriment of the insurers (and in some cases, provide greater benefits to an uninsured than an insured, White, at 719), who are after all in the business of providing insurance and aware of its risks, their punishment is not the statutory objective. If the defendant/insurer’s right to trial by jury is bargained away, and indeed paid for, through negotiation of an insurance contract to which the litigating parties are signatory, deprivation of rights becomes voluntary waiver. In a similar fashion, the parties may waive the right to trial by entering into an arbitration proceeding despite the absence of contract. The PACP designation process does not offer an acceptable approximation of a volitional act, however desirable the administrative effects may be of arbitration as opposed to trial, and a regulation does not correct its deficiencies.

We, therefore, hold that the procedure to be followed in enforcement of uninsured motorist benefits, absent an actual contract containing an arbitration clause, as against the assigned obligor, is the filing of a complaint in assumpsit.

Order affirmed.

Case remanded for proceedings consistent with this Opinion.

      . The appellant in Distler actually sought uninsured motorist benefits, as does appellant herein, rather than no-fault benefits. The trial court held that although appellee had waived the defect in appellant’s implementation procedure, the final order appealed from had to be entered prior to the decision in Floczak v. Nationwide Mutual Insurance Co., 289 Pa.Super. 438, 433 A.2d 885 (1981), in order for the waiver to take effect. Since the Order had been entered after Floczak, appellee’s waiver was obviated, and the appeal was consequently quashed. We note that Floczak, in which this Court held that a claim for no-fault benefits could only be instituted by praecipe for writ of summons or complaint, provides the major underpinning for the Order denying arbitration in the instant case.

      . This, of course, assumes that arbitration is a proper means of resolution in the context. As will appear below, in cases such as the one before us, it is not.

      . Per 31 Pa.Code § 63.2 Exhibit C, III.8.
      8. Arbitration. If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this endorsement, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this endorsement.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    502 A.2d 210
    WILKES-BARRE IRON & WIRE WORKS, INC., Appellant, v. PARGAS OF WILKES-BARRE, INC. v. Edward CALADIE, Appellee.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed Dec. 13, 1985.

      Miles A. Jellinek, Philadelphia, for appellant.
    Arthur Silverblatt, Sr., Wilkes-Barre, for appellee.
    Before BECK, POPOVICH and TROMMER , JJ.

      Judge Evelyn Trommer, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   BECK, Judge:

This is an appeal from an order granting a new trial in a products liability action. Plaintiff/appellant Wilkes-Barre Iron & Wire Works’ plant sustained severe damage when a liquid propane cylinder supplied by defendant/appellee Par-gas of Wilkes-Barre exploded. While an employee of appellant was using the cylinder, it slipped and fell. The valve on the cylinder broke off in the fall, and propane gas leaking from the damaged cylinder caused an explosion.

Appellant’s suit against Pargas sounded in both negligence and strict liability under section 402A of the Restatement (Second) of Torts (1965). The negligence claim was non-suited at the close of appellant’s case. The essence of appellant’s strict liability claim was that the cylinder was defectively designed because it lacked a protective collar around the valve which would have shielded the valve from the impact received in the fall.

The jury returned a verdict in favor of appellant, but the trial court granted appellee’s motion for a new trial, holding that crucial testimony of appellant's expert witness should have been excluded because it exceeded the “fair scope” of his pretrial report under Pa.R.C.P. No. 4003.5(c). This is the principal issue before us on appeal. For the reasons stated below we affirm the order granting a new trial.

The decision whether to grant or deny a new trial is within the sound discretion of the trial court. Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981). Although appellant cites us to a statement in Hilbert v. Katz, 309 Pa.Super. 466, 471, 455 A.2d 704, 706 (1983), that “an appellate court may be more exacting in reviewing a new trial grant than a new trial denial,” because the grant of a new trial interferes more with the function of the jury, the context of that statement was strictly with respect to new trials granted on the ground that the verdict was against the weight of the evidence. Elsewhere in the Hilbert opinion, we specifically state with respect to new trials awarded for other reasons, including as in the instant case erroneous rulings on the admission of evidence, the trial court has “broader discretion.” Therefore the appropriate standard is still whether the trial court has abused its discretion.

We hold that the trial court did not abuse its discretion in ruling that a new trial was required because the testimony of appellant’s expert witness exceeded the fair scope of his pretrial report. Discovery of information concerning expert testimony is governed by Pa.R.C.P. No. 4003.5. Subsection (a)(1)(b) of the Rule states in pertinent part:

A party may through interrogatories require ... the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Subsection (c) of the Rule then defines the permissible scope of the expert’s trial testimony:

To the extent that the facts known or opinion held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.

In the instant case, appellant retained Mr. Frederic Blum, a mechanical engineer, to testify regarding the cause of the explosion with particular reference to the design of the propane tank. In response to interrogatories served by Pargas, appellant Wilkes-Barre Iron & Wire Works disclosed Mr. Blum’s identity and attached his report which read as follows:

National Fire Protection Association/ANSI Standard No. 58, concerning Storage and Handling of Liquified Petroleum Gases (1976) states in Paragraph 2130 that:
Portable containers of 1,000 pounds (nominal 120 gallons) water capacity or less shall incorporate protection against physical damage to container appurtenances and immediate connections to these while in transit, storage, while being moved into position for use, and when in use ... by (means of): (b) A ventilated cap or collar____ Construction (of the cap or collar) shall be such that the force of a blow will not be transmitted to the valve.
The subject tank had no such protective collar, although many similar tanks provided by Pargas did. If the sub ject tank had been provided with such a collar, it is clear the accident would not have occurred.
The falling tank would have struck the object with the collar instead of the valve. The valve would have experienced only a low-acceleration force due to inertia instead of the high-acceleration shock of direct impact. As a result, the valve would not have broken off. It is just such accidents that protective collars are designed to prevent.
C. CONCLUSIONS
(1) The tank’s shut-off valve broke off due to impact with a foreign object, as reported.
(2) The accident would not have occurred if the tank had been fitted with a protective collar around its shut-off valve as required by NFPA/ANSI regulations. The lack of a collar represents a clear safety violation on the part of the supplier, Pargas.

Record at 71a, 72a, 76a (emphasis added).

Significantly, Mr. Blum’s report was silent as to the means for attaching the protective collar to the cylinder. The NFPA/ANSI standards cited do not state that the collar must be welded on. At trial, however, Blum specifically testified that the cylinder was defective because it lacked a permanently welded-on protective collar. Blum stated that a cylinder supplied only with a detachable collar would not be completely safe because the collar could be accidentally or deliberately removed, leaving the valve unprotected.

The trial court allowed this testimony over Pargas’ objection. Pargas argues that Blum’s trial testimony exceeded the fair scope of his report because the report did not put Pargas on notice that only a permanently attached collar would have been sufficient, in Blum’s opinion, to discharge Pargas’ duty to produce a safe product.

We agree. Both parties cite the same line of cases construing Rule 4003.5(c) and similar local rules, each side claiming that the cases support its position. See, e.g., Augustine v. Delgado, 332 Pa.Super. 194, 481 A.2d 319 (1984); Klyman v. SEPTA, 331 Pa.Super. 172, 480 A.2d 299 (1984); Mapp v. Dube, 330 Pa.Super. 284, 479 A.2d 553 (1984); Martin v. Johns-Manville Corp., 322 Pa.Super. 348, 469 A.2d 655 (1983); Brogley v. Chambersburg Engineering Co., 306 Pa.Super. 316, 452 A.2d 743 (1982).

The experience of this Court as revealed in these cases has been that it is impossible to formulate a hard and fast rule for determining when a particular expert’s testimony exceeds the fair scope of his or her pretrial report. Rather, the determination must be made with reference to the particular facts and circumstances of each case. The controlling principle which must guide us is whether the purpose of Rule 4003.5 is being served. The purpose of requiring a party to disclose, at his adversary’s request, “the substance of the facts and opinions to which the expert is expected to testify” is to avoid unfair surprise by enabling the adversary to prepare a response to the expert testimony. See Augustine v. Delgado, 332 Pa.Super. at 199, 481 A.2d at 321 (“Pa.R.Civ.P. 4003.5 favors liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise”); Martin v. Johns-Manville Corp., 322 Pa.Super. at 358, 469 A.2d at 659 (“[W]e have found experts’ reports to be adequate ... when the report provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness.”)

In other words, in deciding whether an expert’s trial testimony is within the fair scope of his report, the accent is on the word “fair.” The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert’s pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response.

In the instant case it is clear that appellee Pargas was prejudiced by the discrepancy. The fundamental issue in this products liability action is whether the propane cylinder was in a safe condition when it left appellee’s control. Mr. Blum’s report simply indicated that it was his opinion that a cylinder lacking a protective collar was defective. Appellee was therefore prepared to defend with evidence that the cylinder in question was equipped with a collar (albeit a removable one) when it was delivered to appellant. This defense was of course ineffectual against the claim that the only safe procedure was to weld the collar to the cylinder.

Appellant argues that the expert’s report was adequate because it disclosed the basic theory that the absence of a collar caused the accident, and the absence of a fixed collar is just a specific example included within the scope of the report. As a matter of pure logic, this argument has some appeal, but it misses the point. There were two courses of action open to Pargas to protect the valves on its cylinders. We shall call installing a removable collar Option A and installing a fixed collar Option B. Mr. Blum’s report states that a propane cylinder must have a collar conforming to certain standards to be safe. Pargas could choose either Option A or Option B and meet those standards. However, according to Blum’s trial testimony, appellee would have supplied a safe product only if it chose Option B. In other words, Blum did not simply state that a welded-on collar was a particular type of safe collar; rather, his trial testimony changed the parameters of what he deemed safe and unsafe. Appellee was thus seriously misled in the preparation of its defense.

The trial court correctly concluded that Blum’s testimony relating to the absence of a welded or permanent collar constituted a different and distinct defect on which liability could be predicated. The trial court noted that this type of defect had not been previously articulated and was not addressed in the expert’s report. Blum had failed to indicate prior to trial that the cylinder was defective because its collar was not welded or permanently affixed to the cylinder. A fair reading of Blum’s report indicates that the only design defect contemplated by it was the absence of any protection to the shut-off valve in the event of a fall.

The expert’s opinion offered at trial was based on a design defect not in his report and one different in character from that described in his report. Blum’s testimony presented at trial permits the inference that appellee Par-gas supplied a defective cylinder because the company did not consider the possibility that a non-permanent collar might be removed or fall off. Under Blum’s in-court statement, Pargas would have supplied a defective product unless the collar were welded or permanently affixed. This new definition of design defect took appellee by surprise and constituted the kind of surprise that Rule 4003.5 seeks to prevent.

“Fair scope” contemplates a reasonable explanation and even an enlargement of the expert’s written words. However, it does not constitute a new and different definition of design defect.

The trial court noted that hindsight instructed it that Pargas had established prejudice and that the testimony complained of should have been excluded. At page 19 of its written opinion, the trial court observes that

[t]he record clearly reflects that Pargas was prepared to defend and did introduce evidence in the form of a receipt signed by an agent of Wilkes-Barre Iron indicating that the cylinder was delivered on February 17, 1977, with a protective collar, albeit a non-permanent one. Since that date was the one on which the product left the control of Pargas, it was the crucial point in time for determining whether the cylinder was indeed defective within the meaning of [Section] 402A. Pargas understandably then had reason to forego the use of an expert witness to rebut the opinions and grounds contained in Blum’s report. By establishing that such a protective collar did accompany the cylinder and that an employee of Wilkes-Barre Iron had removed the collar, the detrimental impact of Blum’s conclusions as contained in the report would have been absolutely negated. However, with the insertion of the new theory [new definition of defect], Pargas was surprisingly caught off guard without the availability of an expert to rebut that opinion testimony. It is also significant to note that the opinion complained of concerned one of the ultimate issues involved in this case. Accordingly, we are satisfied that Pargas was prejudiced when the court permitted the introduction at trial of what was, in effect, a new theory of liability [new definition of defect].

Appellant claims that any error was harmless for several reasons. First, appellant argues that other competent evidence on the absence of a welded collar was properly admitted at trial, thereby rendering the erroneous admission of such evidence harmless error. Appellant also asserts that this evidence was known to Pargas long before trial, thereby obviating any claim of surprise.

We disagree. The evidence referred to consists of deposition and trial testimony of a district manager of Pargas (called by appellant at trial as on cross-examination) that Pargas began fitting welded collars on its tanks after the accident on appellant’s premises occurred. Although this is evidence that Pargas knew that the collars could be welded on and in fact did so subsequent to the accident, it does not address the question whether welding the collar on was necessary to make the tank safe. Therefore it is not duplicative of Blum’s expert testimony. As for the significance of the district manager’s substantially similar deposition testimony, we do not believe that the deposition of a third person can substitute for deficiencies in the report of an expert witness. A party who has received inadequate notice of the facts and opinions of an opponent’s expert cannot be expected to prepare a response on the speculative supposition that his testimony will be consistent with that of some other witness.

Finally, appellant contends that the admission of Blum’s testimony was harmless error because the case was submitted to the jury on three theories of liability, only one of which depended on Blum’s opinion that the collar should have been welded on, and the jury returned only a general verdict.

The three theories of strict liability were: 1) that the cylinder was defective because it was delivered without a protective collar; 2) that even if delivered with a protective collar, the cylinder was nevertheless defective because the collar was not permanently affixed or welded to the cylinder, and 3) that Pargas supplied a defective product by refilling the tank with highly explosive propane.

Appellant urges us to hold that because the jury may have found in its favor without relying on Blum’s testimony, the jury’s verdict should be upheld. This contention is meritless.

In view of the general verdict, we cannot determine on what theory the jury’s decision was premised. Since the challenged testimony addressed one of the ultimate issues involved in the case, we can only speculate as to the basis for the jury’s verdict. It is precisely because we can only speculate as to the basis for the jury’s verdict that the verdict cannot be upheld. Where the verdict of the jury may have been based on improperly admitted evidence, the grant of a new trial is appropriate. Bell v. Western Pennsylvania Hospital, 293 Pa.Super. 37, 437 A.2d 978 (1981); Kelly v. Buckley, 280 Pa.Super. 353, 421 A.2d 759 (1980); Warren v. Mosites Construction Co., 253 Pa.Super. 395, 385 A.2d 397 (1978). Here the jury’s verdict clearly could have been based on the improperly admitted evidence. We agree with the trial court that under these circumstances a new trial is warranted to give both parties the opportunity to address all the issues fully and fairly.

The order of the trial court is affirmed.

      . Contrary to appellant’s further suggestion, the statement in the report that the cylinder should have a collar protecting the valve does not necessarily imply that the collar must be welded on. There arc many examples in common knowledge of safety devices which are removable or defeatable by the user.

      . Evidence of post-accident modifications is admissible in a products liability case. Matsko v. Harley-Davidson, 325 Pa.Super. 452, 473 A.2d 155 (1984).


author: WATKINS, Judge:

text:
    502 A.2d 215
    COMMONWEALTH of Pennsylvania v. Todd M. STORM, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Dec. 13, 1985.
    John P. Lawler, Stroudsburg, for appellant.

      James F. Marsh, District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before BROSKY, WATKINS and HOFFMAN, JJ.
   WATKINS, Judge:

This appeal raises questions concerning sentencing of the defendant-appellant, Todd M. Storm, after negotiated pleas concerning a bank robbery in Mount Pocono, PA. The factual allegations in Count I of the Criminal Information No. 723-1984 allege that “The Defendant did enter First Eastern Bank, Mount Pocono, PA, with a gun and did demand money from a teller of said bank and did take unlawful control over approximately $4,808.00, belonging to said bank, in violation of Section 3701(a)(l)(ii, iii, v) of the Crimes Code.” On December 31, 1984, the appellant was sentenced to a period of five to ten years of incarceration. The appellant, by his counsel filed a timely Petition for Reconsideration on January 7, 1985. The trial court denied the petition without a hearing. This appeal followed.

Appellant raises two questions on appeal:

1. Did the trial court err in failing to permit the appellant or appellant’s counsel to advised the court, prior to imposing sentence, that the appellant had co-operated with the prosecution of other individuals?

2. Was the sentence imposed by the trial court excessive and an abuse of discretion in that a sentence under 42 Pa.C.S.A. 9712, et seq., requires notice to defendant of the Commonwealth to proceed under this Section?

The Commonwealth concedes in its brief that the appellant and his counsel were not afforded an opportunity to submit information to the court and make argument prior to the imposition of sentence and that the sentence should be vacated for appropriate disposition. Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982). The Commonwealth further concedes that the court below did not permit either the Commonwealth or the appellant to present argument at the sentencing hearing in accordance with 42 Pa.C.S.A. Section 9712(b) and to thereby apprise the court properly of the respective positions of the appellant and the Commonwealth concerning the application of 42 Pa.C.S.A. § 9712 and its required minimum sentence of five years.

The appellant contends, therefore, that his sentence should be remanded to the court below for sentencing that is consistent with The Sentencing Code, 42 Pa.C.S.A. § 9701, et seq. and that he be given notice that the Commonwealth intends to proceed under 42 Pa.C.S.A. § 9712. He further argues that he must be given an opportunity to present any additional evidence to determine whether this section is applicable. See Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980) that which held the Rules of Criminal Procedures provide: “At the time of sentencing, the Judge shall (a) afford the defendant the opportunity to make a statement in his own behalf ... relative to sentencing.” See also, Commonwealth v. Gates, 429 Pa. 453, 457, 240 A.2d 815, 818 (1968).

This appeal is remanded to the court below so that a new sentence can be rendered in accordance with the procedural requirements set forth in the Sentencing Code and in accordance with the requirements of 42 Pa.C.S.A. § 9712(b).

Jurisdiction is relinquished.


author: PER CURIAM: ROBERTS, Judge,

text:
    502 A.2d 216
    COMMONWEALTH of Pennsylvania, Appellant v. Elwood Lamar YOST.
    Superior Court of Pennsylvania.
    Submitted Aug. 5, 1985.
    Filed Dec. 13, 1985.

      Anthony J. Rosini, Assistant District Attorney, Shamokin, for Com., appellant.
    Vincent V. Rovito, Jr., Shamokin, for appellee.
    Before WICKERSHAM, BROSKY and ROBERTS, JJ.
   PER CURIAM:

On September 9, 1984, Elwood Lamar Yost was charged by the Shamokin Police Department, in a criminal complaint, of disorderly conduct, resisting arrest and underage consumption of alchohol. A reckless driving charge was also involved.

A motion to compel discovery pursuant to Pa.R.Crim.P. No. 305 A was granted by court order dated November 21, 1984. On January 29, 1985 the court, by the Honorable Peter Krehel, President Judge, issued the following Order:

AND NOW, this 29th day of January, 1985, upon finding that the Commonwealth has not complied with this Court’s Order of 21 November 1984 compelling discovery, and upon finding that the lapse of (10) weeks is unexplainable by the Commonwealth, the Defendant’s Motion for Sanctions is GRANTED and the charges filed to the above-captioned Information are DISMISSED with prejudice.

The Commonwealth filed the instant appeal from the January 29, 1985 order dismissing the charges.

Judge Krehel, in an opinion dated February 5, 1983, explained his action in this manner:

On January 1985, the Commonwealth called this case for trial. At that time, Defendant made a Motion for Sanctions against the Commonwealth, alleging that the Commonwealth had failed to comply with this Court’s Discovery Order of 21 November 1984 and requesting that the Commonwealth not be permitted to introduce at trial any evidence which was subject to the Discovery Order.
Pa.R.Crim.P. 305 E. provides,
If at any time during the course of the proceedings it is brought to the attention of the Court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances. (Emphasis added)
sjs s}e sfc s¡s s¡« }fc
In this case, the Commonwealth had called this case for trial. It indicated that a jury panel was available and that it was ready to proceed to trial. The Commonwealth had been served with the Discovery Order more than ten (10) weeks previously, yet it had not yet responded to the request.

The Defendant’s Discovery Request did not ask the Commonwealth to disclose anything extraordinary. The request covered the items required by Brady v. Maryland. (Citation omitted).

Defendant’s Motion for Sanctions was properly granted, because to allow the Commonwealth to introduce the evidence encompassed by the Discovery Order would have been a significant infringement of Defendant’s constitutional right to a fair trial. Rule 305 E. provides that in such circumstances, the Court may prohibit the Commonwealth from introducing the evidence not disclosed.

After granting the Motion for Sanctions, this Court then looked to what remained of the Commonwealth’s case. It was clear that by excluding the evidence covered by the Discovery Order, the Commonwealth would not be able to introduce statements by the Defendant (See: the Affidavit of Probable Cause). In addition, the Commonwealth would not be able to introduce statements or testimony of its witnesses. Defendant’s Motion for Discovery, Paragraphs 7, 8, 9.

At this point, it was apparent that this case had become demurrable. In the interest of judicial economy, it would have been foolish to pick a jury and begin the trial only to have a demurrer granted. In addition, the District Attorney has repeatedly reminded everyone of the overcrowded criminal trial docket, so it was decided that the Dismissal of the charges was in the best interest of justice.

Accordingly, the Order of 29 January 1985 was entered.

In this case, appellant presents the following issue for our consideration:

1. Did the lower court err in dismissing the charges against the defendant for failure of the Commonwealth to provide discovery without holding a hearing on the merits of the defendant’s motion and thereby providing the Commonwealth with an opportunity to respond to the allegations of the defendant.

Brief for Appellant at 1.

In its brief before this Court, the Commonwealth maintains that:

1. The lower court erred in dismissing the charges against the defendant for failure of the Commonwealth to provide discovery without holding a hearing on the merits of the defendant’s motion and providing the Commonwealth with an opportunity to respond to the defendant’s allegations.
2. The lower court erred in failing to hold a hearing on the defendant’s oral motion for discovery and allowing the Commonwealth time to respond to said motion.
3. A copy of the defendant’s request for discovery is set forth in the record. (R.R. 17a-18a) While the Commonwealth did not file a formal [response,] if the court had permitted a hearing the Commonwealth would have indicated that the response to the mandatory disclosure portion, i.e. paragraphs 1 through 7 in the request would have been “none”. The Commonwealth would not have provided discretionary material requested in defendant’s request in paragraph’s number 8 through 12 without an order of court. In this case the court entered an ex-parte order ordering the Commonwealth to provide its file and the Commonwealth complied with this order. (R.R. 5a) After defense counsel was provided with the Commonwealth’s file no further request for discovery was made. The Commonwealth would submit that there was no violation of the Rules of Criminal Procedure since the court’s order was complied with. However, if any remedy would have been in order in this matter, it would certainly have been only a brief continuance. In this case the court never held a hearing to determine whether the information requested by the defendant should be provided. While the court may enter an order prohibiting the Commonwealth from introducing testimony of undisclosed witnesses, it is submitted that in this matter the defendant was informed of witnesses through the preliminary hearing at which time witnesses testified against him. In fact the defendant had an eyewitness to the incident who was a passenger in his car and the defendant would have been able to obtain this eyewitness without the Commonwealth’s informing him thereof. Additionally, when the Commonwealth’s file was delivered to the defendant it contained the [names] of all potential witnesses.
The purpose of Rule 310 is to afford the defendant the opportunity to discover evidence which he does not know exists as well as to seek possession of evidence which he is aware of. In fact where the defendant has already obtained the information, such as through a preliminary hearing, the courts have held denial of a request for further discovery is proper.
This is not a case where there is any evidence of record below that the defendant’s rights were violated by withholding evidence favorable to the defendant or which the defendant was unaware of.
While the court may have discretion in selecting a remedy for the Commonwealth’s failure to provide discovery in this case, the record is clear that the lower court abused its discretion in failing to allow the Commonwealth to respond to the defendant’s motion by putting on evidence of its compliance with the court’s order and that the discovery otherwise requested was already available to the defendant and his counsel.

Brief for Appellant at 7-9. (Citations omitted).

The Rule in question (Rule 305 Pa.R.Crim.P.) provides for [B(l) ] mandatory disclosure by the Commonwealth of various listed items or information and [B(2)] discretionary disclosure of names and addresses of eyewitnesses, all written or recorded statements of Commonwealth witnesses and statements of co-defendants, co-conspirators or accomplices and “any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.”

If a party “has failed to comply” with Rule 305, then: E. REMEDY:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.
Pa.R.Crim.P. 305 E.

In Commonwealth v. Johnson, 310 Pa.Super. 385, 456 A.2d 988, 993, (1983) our Judge Spaeth (now President Judge) indicated an appropriate remedy for failure of the Commonwealth to comply with Rule 305:

Finally, in [Commonwealth v. ] Rodgers [472 Pa. 435, 372 A.2d 771 (1977)] there was no violation of Pa.R.Crim.P. 305(B)(1). Pa.R.Crim.P. 305 E gives the trial court broad discretion in formulating remedies for a failure to comply with discovery requirements. In many cases, ordering a continuance will be an adequate remedy. This will be so where the undisclosed statement or other evidence is admissible and the defendant’s only prejudice is surprise. E.g., Commonwealth v. Parente, 294 Pa.Superior Ct. 446, 440 A.2d 549 (1982); Commonwealth v. Bey, 294 Pa.Superior Ct. 229, 439 A.2d 1175 (1982). Sometimes, however, the prejudice will go beyond surprise; if the prejudice is so great that the fairness of the trial has been affected, a new trial should be ordered. Commonwealth v. Jenkins, 476 Pa. 467, 383 A.2d 195 (1978).

Compare Commonwealth v. Parente, 294 Pa.Super. 446, 452, 440 A.2d 549 at 552 (1982) where termination of the entire prosecution was called “a penalty far too drastic.”

We believe that dismissing the charges against the defendant is an abuse of discretion and uncalled for under the circumstances of this case. A continuance would have been much more appropriate. See Commonwealth v. Melendez, 326 Pa.Super. 531, 474 A.2d 617 (1984); where we granted a new trial based upon a prosecutor’s nondisclosure. The purpose of the rule has been said to afford defendant the opportunity to discover evidence which he did not know existed, as well as to seek possession of evidence of which he was aware. Commonwealth v. Brocco, 263 Pa.Super. 51, 396 A.2d 1371 (1979).

Case remanded for trial. Order reversed. The Commonwealth shall fully comply with Rule 305 forthwith.

Jurisdiction relinquished.

ROBERTS, J., files a dissenting opinion.

ROBERTS, Judge,

dissenting:

I would affirm the trial court. Its order dismissing the charges was a proper discretionary remedy under Pa.R. Crim.P. 305 E. As the rule states:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

Here, the Commonwealth’s failure for ten weeks to comply with the court’s discovery order supports the sanction of dismissal. In all respects, it is an order “just under the circumstances.”

The record reveals that the trial court initially directed discovery on November 21, 1984. Yet, it was not until January 29, 1985, the day of trial, that the Commonwealth made any response to the order. The Commonwealth never noted its exception to the order until that day. It now would be anamolous to reward the Commonwealth with a continuance after its ten week disregard of a direct court order.

In Commonwealth v. Johnson, supra, now President Judge Spaeth observed that Rule 305 E “gives the trial court broad discretion in formulating remedies for a failure to comply with discovery requirements.” 310 Pa.Super. at 395, 456 A.2d at 933. On this record, it cannot be concluded that an abuse of discretion occurred. Because of the Commonwealth’s failure to provide the requested discovery materials, the court found that the defendant would have been deprived of his constitutional right to fair trial. Plainly, where such significant infringement has been occasioned, the Commonwealth has not established its entitlement to a continuance. Accord Johnson, supra, 310 Pa.Superior Ct. at 395, 456 A.2d at 993. Thus, the trial court’s dismissal was indeed a sound exercise of discretion.

In its dismissal order, the trial court noted:

After granting the Motion for Sanctions, this Court then looked to what remained of Commonwealth’s case. It was clear that by excluding the evidence covered by the Discovery Order, the Commonwealth would not be able to introduce statements by the Defendant____ In addition, the Commonwealth would not be able to introduce statements or testimony of its witnesses____
At this point, it was apparent that this case had become demurrable. In the interest of judicial economy, it would have been foolish to pick a jury and begin the trial only to have a demurrer granted. In addition, the District Attorney had repeatedly reminded everyone of the overcrowded criminal trial docket, so it was decided that the Dismissal of the charges was in the best interest of justice.

This well formulated order properly considered the circumstances surrounding the Commonwealth’s failure to comply with the discovery order and the absence of admissible evidence to deny a demurrer.

The majority apparently accepts the Commonwealth’s argument that the trial court should have held a hearing on the merits of defendant’s motion for sanctions. The record, however, discloses that neither a written nor oral request for a hearing was made in the trial court. This issue having been presented here for the first time is not properly preserved for appeal. See Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).

Accordingly, I dissent.

      . Section 5503(a)(3) obscene language or obscene gestures — a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience.


author: CIRILLO, Judge: WICKERSHAM, Judge,

text:
    502 A.2d 221
    COMMONWEALTH of Pennsylvania v. Joseph D. TARBERT, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1985.
    Filed Dec. 6, 1985.

      William H. Poole, Jr., York, for appellant.
    Thomas L. Kearney, Assistant District Attorney, York, for Com., appellee.
    Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of York County. Appellant, Joseph D. Tarbert, was arrested and charged with driving under the influence of alcohol. Following a trial by jury, appellant was convicted of the charged crime. Timely post-verdict motions were filed and denied. Tarbert was sentenced to thirty days to twelve months imprisonment, a $500.00 fine, and to pay the costs of prosecution. We reverse.

In the early morning hours of July 30, 1983, the York Township Police Department established a roadblock on a county road, at which all vehicles proceeding in each direction were stopped. The operators of the stopped vehicles were asked to produce their licenses and owner’s cards. The officers involved in the operation made a physical examination of each automobile to determine whether any inspection violations were present. Each motorist was carefully observed to ascertain whether he was under the influence of alcohol.

Tarbert’s van was stopped at the roadblock site. The officer who stopped appellant testified that he noticed the odor of alcohol coming from the vehicle. As a result, several field sobriety tests Were administered, and appellant was placed under arrest. A subsequent breathalyzer test resulted in a .12 reading. Appellant filed a pre-trial suppression motion based upon a lack of probable cause to stop his vehicle. The motion was denied.

We are asked to pass upon the constitutionality of police roadblocks, which, without probable cause or a reasonable suspicion that a crime has been or is being committed, stop all vehicles travelling on a public highway for the purposes of checking licenses, registrations, inspection violations, and for drivers operating vehicles under the influence of alcohol.

I

ADEQUATE AND INDEPENDENT STATE GROUNDS

Initially, we are compelled to note that our decision today is based entirely upon the Constitution of the Commonwealth of Pennsylvania. Any reliance on federal cases is only for the purpose of guidance, with these cases not compelling the result reached. Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983). We intend to clearly and expressly indicate that our decision rests “on bona fide, separate, adequate, and independent [state] grounds ...” Id.

II

A. CONSTITUTIONAL FRAMEWORK

Embodied in any state constitutional analysis is the power of a state to guard an individual’s rights more zealously than that mandated by the Federal Constitution. Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983); Kroger Co. v. O’Hara Township, 481 Pa. 101, 392 A.2d 266 (1978); In re Gartley, 341 Pa.Super. 350, 491 A.2d 851 (1985); Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Co., 335 Pa.Super. 493, 485 A.2d 1 (1985). “[A] state may provide through its constitution a basis for the rights and liberties of its citizens independent from that provided by the Federal Constitution, and that the rights so guaranteed may be more expansive than their federal counterparts.” Commonwealth v. Tate, 495 Pa. 158, 169, 432 A.2d 1382, 1387 (1981). One commentator has characterized the function of a state constitution as “a second line of defense for those rights protected by the federal constitution and as an independent source of supplemental rights unrecognized by federal law.” Note, The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324, 1367 (1982), quoted with approval in Commonwealth v. Beauford, 327 Pa.Super. 253, 263, 475 A.2d 783, 788 (1984). Indeed, Pennsylvania courts interpreting our Constitution have not hesitated in “affording greater protection to defendants than the federal Constitution.” Commonwealth v. Sell, 504 Pa. at 64, 470 A.2d at 467. See e.g., Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979) (waiver of Miranda rights requires an explicit waiver; contra North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert, denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980) (police cannot gain access to banking records without a warrant based on probable cause; contra Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975) (statements of a defendant declared inadmissible by suppression court cannot be used for impeachment purposes; contra Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971)); Commonwealth v. Beauford, supra (use of a pen register requires a warrant based upon probable cause; contra Smith v. Maryland, supra).

“Article 1 [of the Pennsylvania Constitution] is entitled ‘Declaration of Rights’ and all of the first twenty-six sections of Article 1 which states those specific rights, must be read as limiting the powers of government to interfere with the rights provided therein." Commonwealth v. National Gettysburg Battlefield Tower, Inc., 454 Pa. 193, 200, 311 A.2d 588, 592 (1973) (emphasis added). The fundamental rights delineated by our Constitution serve as “commands to the legislature to enact laws to carry out the purposes of the framers of the Constitution, [and may act as] ... restrictions upon the power of the legislature to pass laws.” O’Neill v. White, 343 Pa. 96, 99, 22 A.2d 25, 26 (1941) (citation omitted).

Perhaps a most basic example of a provision evidencing a deep-rooted fundamental right recognized by the framers of our Constitution can be found in Section 8 of Article 1.

§ 8. Security from searches and seizures
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affi-ant.

This right, also acknowledged in the Federal Constitution, “safeguard[s] the privacy and security of individuals against arbitrary invasions by governmental officials.” Ca-mara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). Accord Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975). So important is the right guaranteed by Section 8, that it has been held to extend “beyond the home to protect the individual against unwarranted government intrusions into any area where the individual may harbor a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980), cert, denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); Commonwealth v. Gabrielle, 269 Pa. Super. 338, 409 A.2d 1173 (1979); Commonwealth v. Adams, 234 Pa.Super. 475, 341 A.2d 206 (1975).” Commonwealth v. Beauford, 327 Pa.Super. at 261-62, 475 A.2d at 787.

To achieve the ends sought by our constitutions, the proscriptions contained in the Fourth Amendment and in Section 8 of Article 1 of our Constitution “impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement agents____” Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). Consequently, any encroachment upon one’s privacy rights by “a particular law enforcement practice [must be] judged by balancing its intrusion on the individual’s Fourth Amendment [and Section 8] interests against promotion of legitimate governmental interests.” Id. at 654, 99 S.Ct. at 1396 (footnote omitted).

B. ROADBLOCKS

Dicta from the United States Supreme Court’s decision in Delaware v. Prouse, supra, is the foundation for many state courts finding roadblocks such as the one in this case constitutional. However, no court has adopted a per se rule of constitutionality. Rather, these courts hold that, only where the efficacy of the roadblock in achieving increased safety and minimal intrusion upon society’s rights are both shown by the state, can a seizure at a roadblock pass constitutional muster.

Our analysis of the issue sub judice begins with the notion that “[a]n automobile is a place where an individual has a reasonable expectation of privacy.” Commonwealth v. Swanger, 453 Pa. 107, 111, 307 A.2d 875, 877 (1973). When a vehicle is stopped by a police officer and its occupants are detained, a seizure within the meaning of the Fourth Amendment and Section 8 has occurred. Id. See also Delaware v. Prouse, supra; United States v. Martinez—Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); Commonwealth v. Berry, 305 Pa.Super. 8, 451 A.2d 4 (1982). Cf., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Prouse involved a random stopping of motor vehicles to check an occupant’s license and the vehicle’s registration. The Supreme Court held that,

except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

440 U.S. at 663, 99 S.Ct. at 1401. In dicta contained in the next two sentences of the decision however, the Court, in essence, “signaled to local authorities that they could still stop vehicles absent any articulable suspicion of wrongdoing, so long as the haphazard stopping was replaced by a systematic and controlled alternative.” Rogers, The Drunk-Driving Roadblock: Random Seizure or Minimal Intrusion?, 21 Crim.L.Bulletin 197 (1985) (hereinafter cited as Rodgers) (emphasis in the original). The Court stated: “Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.” 440 U.S. at 663, 99 S.Ct. at 1401.

What troubled the Court most in the scenario presented by Prouse was the use of “unbridled discretion” by the police in stopping an automobile. Id. The Court noted other alternative means of fostering the state’s interest in highway safety, 440 U.S. at 659, 99 S.Ct. at 1399, and that the “marginal contribution” of spot checks could not justify the magnitude of the intrusion upon an individual. Id. at 661, 99 S.Ct. at 1400. Without probable cause or some “articulable basis amounting to reasonable suspicion” to believe there is a violation of the motor vehicle law, the Court could not “conceive any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver.” Id. With this conclusion, we are in total agreement.

Six years prior to the Prouse decision, our Supreme Court was faced with the question of random stops in Pennsylvania. In Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), the Court held that in order to stop a single vehicle to check compliance with the Motor Vehicle Code, a police officer “must have probable cause based on specific facts which indicate to him either the vehicle or the driver are in violation of the code.” Id., 453 Pa. at 115, 307 A.2d at 879. We can find no compelling reason to deviate from this rule in situations involving a systematic stopping of vehicles.

The intrusion upon the individual in systematic stops is no less an intrusion because of the mere fact that all vehicles travelling on the highway are stopped. While the discretion of the police officer is limited to a degree, we cannot sanction “random seizures based on ‘luck and hunch’ alone ... which inconvenience citizens without any justification of substance.” State v. Kirk, 202 N.J.Super. 28, 58, 493 A.2d 1271, 1288 (1985) (citations omitted). In short, systematic and random roadblocks are nothing more than fishing expeditions which “constitute police seizure and detention in the absence of the faintest scintilla of criminal wrongdoing.” Rogers, supra at 214.

As noted supra, states that have grappled with the roadblock issue have unjustifiably avoided adopting a per se rule. It is apparent that the courts of these states also are not viewing the dicta of Prouse as a hard and fast rule for all roadblocks.

In State v. Kirk, supra, the New Jersey Superior Court surveyed the decisions of many state courts and found a common theme running throughout the cases.

If the road block was established by a command or supervisory authority and was carefully targeted to a designated area at a specified time and place based on data justifying the site selection for reasons of public safety and reasonably efficacious or productive law enforcement goals, the road block will likely pass constitutional muster. Other factors which enhanced judicial approval were (1) adequate warnings to avoid frightening the travelling public, (2) advance general publicity designed to deter drunken drivers from getting into cars in the first place, and (3) officially specified neutral and courteous procedures for the intercepting officers to follow when stopping drivers. Simply sending out officers to set up road blocks when and where they felt like it, without any command participation as to site, time and duration, and not based on articulated and rational law enforcement needs which justified the balance in favor of intrusion and outweighed the privacy, is a technique which has not survived constitutional scrutiny very well.

Kirk, 202 N.J.Super. at 40--41, 493 A.2d at 1277-78.

What we can discern from these cases is a concern “over the unregulated discretion of field officers.” Rogers, supra at 203. As a result, a number of courts have concluded that in the absence of factors indicating careful control and minimal discretion by police officers, the use of roadblocks is violative of the Fourth Amendment. See e.g., State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 663 P.2d 992 (1983); Jones v. State, 459 So.2d 1068 (Fla.Dist.Ct.App. 1984); People v. Bartley, 125 Ill.App.3d 575, 80 Ill.Dec. 894, 466 N.E.2d 846 (1984); State v. McLaughlin, 471 N.E.2d 1125 (Ind.App.1984); Commonwealth v. McGeoghegan, 389 Mass. 137, 449 N.E.2d 349 (1983); State v. Olgaard, 248 N.W.2d 392 (S.D.1976); Koonce v. State, 651 S.W.2d 46 (Tex.App.1983). The intrusion upon the individual’s right of privacy outweighs the government’s interests in highway safety in this situation.

Courts upholding the constitutionality of roadblocks are not unmindful of their intrusiveness, but rather, stress that careful control and absence of discretion can bring the use of the roadblock within the Fourth Amendment. See e.g., State v. Golden, 171 Ga.App. 27, 318 S.E.2d 693 (1984); People v. Long, 124 Ill.App.3d 1030, 80 Ill.Dec. 332, 465 N.E.2d 123 (1984); State v. Garcia, 481 N.E.2d 148 (Ind. App.1985); State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983); Kinslow v. Commonwealth, 660 S.W.2d 677 (Ky.Ct.App.1983); State v. Shankle, 58 Or.App. 134, 647 P.2d 959 (1982); State v. Marchand, 37 Wash.App. 741, 684 P.2d 1306 (1984).

While the arguments supporting the constitutionality of systematic roadblocks are persuasive, the rationale supporting them is flawed. No amount of control or limited discretion can justify the “seizure” that takes place in the complete absence of probable cause or reasonable suspicion that a motor vehicle violation has occurred. Certainly the Constitution of our Commonwealth affords its citizens the right to be free from intrusions where one has a reasonable expectation of privacy.

An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion, every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles.

Prouse, 440 U.S. at 662-63, 99 S.Ct. at 1400-01.

We hold that police roadblocks, which, without probable cause or a reasonable suspicion that a crime has been or is being committed, stop all vehicles travelling on a public highway for the purposes of checking licenses, registrations, inspection violations, and for drivers operating vehicles under the influence of alcohol are so violative of our citizen’s rights that they must be declared unconstitutional.

Consequéntly, appellant’s conviction is reversed and the case is remanded to the trial court for proceedings consistent with this opinion. Jurisdiction is relinquished.

WICKERSHAM, J., files a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

I dissent. I would recognize the validity of non-discriminatory, non-arbitrary roadblocks. See Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). I read nothing in the Pennsylvania Constitution that calls for a different interpretation than that espoused by our United States Supreme Court in the above cited cases.

I would also note that the state legislature has recently passed amendments to Title 75 of the Pennsylvania Motor Vehicle Code which authorize “systematic vehicle inspection programs,” 75 Pa.C.S. § 4704(A)(2) (as amended 1985, June 19, P.L.-, No. 20, § 5, effective in 60 days) and which give authority to police officers who are “engaged in a systematic program of checking vehicles or drivers” to “stop a vehicle ... for the purpose of checking the vehicle’s registration ... or [a] driver’s license....” 75 Pa.C.S. § 6308(b) (as amended 1985, June 19, P.L. -, No. 20, § 10, effective in 60 days), without the requirement of articulable and reasonable grounds to suspect a violation of the code.

In conclusion, I would find non-discriminatory, non-arbitrary roadblocks valid under the Pennsylvania Constitution; accordingly I would affirm the judgment of sentence in the case sub judice.

      . The new amendment to 75 Pa.C.S. § 4704(A)(2) reads:
      § 4704. Inspection by police or [Department] Commonwealth personnel.
      (A) Authority To Inspect
      (2) Systematic vehicle inspection programs. — Any Pennsylvania State Police Officer or qualified Commonwealth employee engaged in a systematic vehicle inspection program may inspect any vehicle, driver, documents, equipment and load to determine whether they meet standards established in department regulations. (Underscored material is added, bracketed material is deleted).

        . The new amendment to 75 Pa.C.S. § 6308(b) reads:
      § 6308. Investigation by police officers.
      ******
      (B) Authority of police officer. — Whenever a police officer is engaged in a systematic program of checking vehicle or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of [inspecting the vehicle as to its equipment and operation, or] checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title. (Underscored material is added, bracketed material is deleted).


text:
    502 A.2d 227
    COMMONWEALTH of Pennsylvania v. Julius WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1985.
    Filed Dec. 20, 1985.

      Daniel M. Preminger, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   BECK, Judge:

The issue before us is one of first impression: whether a defendant’s double jeopardy protections are violated when he is twice sentenced, each time after a lawful trial, for the immediate and later consequences of his actions stemming from a single incident? We conclude that the defendant’s double jeopardy protections are not violated.

Two months after appellant was convicted of aggravated assault, attempted murder, criminal conspiracy, possessing an instrument of crime, and violation of the Uniform Firearms Act, his victim, Horace Wallace, died. Although appellant stood convicted, he had not yet been sentenced. He was then tried and convicted and sentenced for third degree murder. Subsequent to the sentence for murder, appellant was sentenced on his original convictions (hereinafter referred to as “the lesser convictions”).

The procedural history of this case is important. The Superior Court originally non prossed a direct appeal from appellant’s judgment of sentence on the lesser convictions. Thereafter, appellant filed a PCHA petition challenging the judgment of sentence for the lesser convictions and his counsel’s stewardship. The PCHA court originally vacated the judgment of sentence on the grounds that it violated the state and federal double jeopardy clauses as well as Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), reinstated on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert, denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).

The Commonwealth petitioned for reconsideration. Upon reflection, the PCHA court decided that no double jeopardy or Campana violations existed. However, the PCHA court ruled that the judgment of sentence violated 18 Pa.C.S.A. § 906 inasmuch as it imposed consecutive sentences for two inchoate crimes, namely, criminal conspiracy and possessing an instrument of crime. Accordingly, the PCHA court vacated the judgment of sentence for the lesser convictions and remanded the matter for resentencing. Appellant, contending that it is unlawful to impose sentence on him for the lesser convictions, appeals the PCHA court order. Appellant also challenges the PCHA court’s findings that his counsel was effective in the original sentencing hearing on the lesser convictions.

We must now decide whether appellant’s double jeopardy protections were violated when he was twice sentenced, each time after a lawful trial, for the immediate and later consequences of his actions stemming from a single incident.

This question was left undecided by the Pennsylvania Supreme Court in Commonwealth v. Washington, 481 Pa. 474, 393 A.2d 3 (1978). The Washington court’s holding is relevant to the instant case. The court held that a defendant’s double jeopardy protections were not violated when he was made to stand trial on a charge of murder after he had already been convicted of other offenses which ultimately resulted in the death of the victim. The court did not decide the legality of the second sentence. See Washington, 481 Pa. at 478, 393 A.2d at 5 (Manderino, J., concurring).

We first address the challenge to counsel’s ineffectiveness at the original sentencing on the lesser convictions. Our standard of review in ineffective counsel claims is to determine if the underlying claim is of arguable merit. If it is, to then ascertain if counsel had some reasonable basis for the course taken, and finally to evaluate whether counsel’s error affected the judgment and was prejudicial to the defendant. Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984). Because we find that appellant’s underlying claims of double jeopardy and Campana violations lack arguable merit, we conclude counsel was not ineffective in failing to raise the claims.

Based on the rationale of double jeopardy, Section 110 of the Crimes Code, 18 Pa.C.S.A. § 110, and Campana together make a clear statement that all charges arising from the same criminal episode must be prosecuted in a single trial. However, Washington held that double jeopardy and Campana were not violated if a defendant is tried separately for murder after a conviction for lesser offenses which later resulted in the death of the victim. Under 18 Pa.C.S.A. § 110(l)(ii), a subsequent prosecution for any additional offense arising from a single incident is not barred if the additional offense was not known or knowable at the commencement of the earlier trial on the incident.

Appellant concedes that his murder trial was not barred by double jeopardy principles or by Campana. He objects, though, to the imposition of sentence for the lesser convictions after sentence was imposed for murder. We find appellant’s argument unpersuasive. Since we conclude that sentencing for the lesser convictions did not violate appellant’s double jeopardy protections, we cannot say that imposition of sentence is prohibited. The orderly progression in a criminal proceeding contemplates sentencing after conviction unless the sentencing clearly violates the rights of the defendant. Here no such violation of appellant’s rights is implicated.

Our analysis of double jeopardy principles and of Campa-na convinces us that the contemplated sentencing on the lesser convictions is permissible. “[DJouble jeopardy represents two fundamental and distinct protections: that no person should be harassed by successive prosecutions for a single wrongful act and that no person should be punished more than once for the same offense.” Commonwealth v. Bolden, 472 Pa. 602, 618, 373 A.2d 90, 97-98 (1977) (footnote deleted).

The prohibition against double jeopardy is ancient and revered in Anglo-American jurisprudence. Bolden; Annot., 98 A.L.R.3d 958 (1980); Note, Twice in Jeopardy, 75 Yale L.J. 262 (1965). At the heart of the prohibition against double jeopardy is the concern that permitting the sovereign freely to subject a citizen to a second trial or a second sentence for the same offense would arm the government with a potent instrument of oppression. 21 Am.Jur.2d Criminal Law § 244 (1981). Justice Black’s stated reasons for double jeopardy protections are illuminating:

The underlying idea, one that is deeply engrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957) (Black, J., dissenting).

We emphasize that the question before us is not multiple sentences for the same offense, but multiple sentences arising from two trials for different offenses based on the same incident. If the sentences for the firearms violation, third-degree murder and one of the inchoate crimes were the result of a single trial, no double jeopardy violations would arise. We do not find that double jeopardy violations arise because the sentences result from two lawful trials. Commonwealth v. Adams, 296 Pa.Super. 24, 442 A.2d 277 (1982). Appellant is not being sentenced twice for the same offense. He is being sentenced for separate offenses. Because the consequence of appellant’s act gave rise to sequential wrongs which were lawfully tried separately, we conclude that he can be sentenced for each wrong he committed. Double jeopardy is simply not violated.

Appellant suggests that the prosecutor should have invalidated the earlier trial in order to try the lesser charges and the murder together. Neither double jeopardy nor Campa-na considerations require this. Indeed, to have tried appellant a second time for the lesser offenses may have violated double jeopardy principles. Commonwealth v. Waters, 491 Pa. 85, 418 A.2d 312 (1980).

We conclude that the PCHA court was correct in finding that appellant’s counsel was not ineffective.

Order of the PCHA court is affirmed. Case is remanded for resentencing on the violation of the Uniform Firearms Act and one inchoate offense. Jurisdiction is relinquished.

      . Appellant was not sentenced for aggravated assault and attempted murder. Under the doctrine of merger these convictions merged with the conviction for murder for sentencing purposes. Commonwealth v. Wilcox, 310 Pa.Super. 331, 456 A.2d 637 (1983).

      . Appellee asserts that the order before us is interlocutory and not yet. appealable. We agree with appellant that the order is a final judgment for purposes of review. 42 Pa.C.S.A. § 9550.

      . The remand for resentencing on the lesser convictions is limited to sentencing on the violation of the Uniform Firearms Act and on one inchoate crime since the convictions for aggravated assault and attempted murder merged for sentencing purposes with third-degree murder and since sentencing for one of the two inchoate crimes (possessing an instrument of crime and criminal conspiracy) was barred by 18 Pa.C.S.A. § 906. See Pennsylvania v. Goldhammer, — U.S. —, 106 S.Ct. 333, 88 L.Ed.2d 183 (1985), rev’g Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985); United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980).


author: DEL SOLE, Judge:

text:
    502 A.2d 230
    SUBURBAN MECHANICAL CONTRACTORS, INC. v. John E. LEO and Mary Leo. Appeal of John E. LEO.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Dec. 20, 1985.

      Richard A. Breuer, Paoli, for appellant.
    Before ROWLEY, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

This appeal arises from the Order of January 2, 1985 opening judgment and permitting Mary M. Leo to enter a defense but denying the Petition to Open and/or Strike Judgment as to the Appellant, John E. Leo.

The factual history indicates that the note at the center of this dispute arose out of a condominium construction project owned and developed by Charlestown Arms Corporation of which the Appellant was president and his wife secretary.

The Appellee’s principal, John H. Taggart, had entered into contracts with Charlestown Arms for various plumbing and mechanical services on the condominium project. The contracts were solely between the corporations and did not involve the Leos individually.

Subsequently, the Appellee filed a Mechanic’s Lien Claim against Charlestown Arms for unpaid work. Negotiations ensued and the parties entered two separate settlement agreements resulting in the mechanic’s lien being released.

Charlestown Arms again developed delinquency problems. Following a discussion between Mr. Taggart and the Appellant, the note at issue here was executed. The Appel-lee alleges the note was the Leo’s personal guarantee of Charlestown’s indebtedness. The Leo’s allege the note was procured by fraud, that there was no consideration to them for the execution of the note, that they were not personally indebted to Appellee, and that part of the sum represented by the note had previously been settled.

The Appellee entered judgment by confession against Mary M. Leo and Appellant pursuant to the note. The Leo’s petitioned to Open and/or Strike Judgment. The trial court granted the petition as to Mary M. Leo but denied the Petition to Open and/or Strike Judgment as to the Appellant since he failed to produce sufficient evidence in support of his defenses to require submission of the issue to a jury. It is from this order that Appellant appeals.

On appeal, the Appellant contends that in order to open a judgment by confession, a defendant’s proffered proof of meritorious defense need not meet the stringent standard of “clear and convincing” evidence as applied by the trial court.

We begin our discussion by noting that traditionally “(a) judgment taken by confession will be opened in only a limited number of circumstances, and only when the person seeking to have it opened acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to the jury.” First Seneca Bank v. Laurel Mt. Development Corporation, 506 Pa. 439, 443, 485 A.2d 1086, 1088 (1984). “Once a ruling either opening or refusing to open a confessed judgment is appealed, we, as an appellate court, will refrain from reversing a trial court’s decision unless it is shown that the court committed an error of law or manifestly abused its discretion.” Lambakis v. Exar, 340 Pa.Super. 483, 488, 490 A.2d 882,-884 (1985) citing Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967).

With respect to Appellant’s defense of fraudulent inducement the trial court stated, “we determine the defendant’s proffered testimony to be less than clear and convincing”. Trial Court Opinion at 6. As to the Appellant’s allegation that there was no consideration to them for the execution of the note, the trial court found “the defendant has not introduced clear and convicing evidence that no benefit to Charlestown Arms accrued ...” Trial Court Opinion at 8. Since consideration for the note was found, it was determined that the Appellant’s defense of no underlying debt was without merit. Trial Court Opinion at 8. Nevertheless, the trial court noted the Appellant failed to refute proof of the existence of the underlying debt by clear and convincing evidence. Trial Court Opinion at 8-9. Finally, the trial court determined that an agreement between the parties was insufficient to be the basis of an accord and satisfaction defense. Trial Court Opinion at 10-11.

Resolution of the issue in this case is controlled by reference to Pa.R.C.P. 2959(e) which provides with respect to confessed judgments,

that ‘if evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment’, (citation omitted) This rule determines the standard to be applied in determining whether a moving party has properly averred a meritorious defense, (citation omitted) The test in evaluating the petitioner’s evidence is whether there is a sufficiently disputed issue to go to the jury, (citation omitted).

Haggerty v. Fetner, 332 Pa.Super. 333, 343, 481 A.2d 641, 646 (1984).

We recently reiterated that “(t)he standard of sufficiency a court must employ is that of the directed verdict — viewing all the evidence in the light most favorable to the petitioner and accepting as true all evidence and proper inferences therefrom supporting the defense while rejecting adverse allegations of the party obtaining the judgment.” Germantown Manufactoring Co., v. Rawlinson, Jr., 341 Pa.Super. 42, 46-47, 491 A.2d 138, 140-41 (1985) citing Weitzman v. Ulan, 304 Pa.Super. 204, 209, 450 A.2d 173, 176 (1982). Furthermore, “(r)ule 2959(e) has been interpreted since its promulgation in 1973 as prohibiting a court from ‘weighing’ the sufficiency of the evidence.” First Pennsylvania Bank, N.A. v. Lehr, 293 Pa.Super. 189, 193, 438 A.2d 600, 602 (1981). Pre 2959(e), the judgment debtor was required to offer clear, direct precise and convincing evidence and the trial court was to weigh the sufficiency of the evidence in this light. First Pennsylvania Bank, N.A. v. Lehr, 293 Pa.Super. 189, 201, 438 A.2d 600, 606-607 (1981). “(T)he key change cause by 2959(e) ... is the elimination of the requirement of ‘convincing’ evidence; for ‘convincing’ evidence by definition requires a weighing of the evidence ... now that requirement has been substantially liberalized to require only clear, direct, and precise and ‘believable’ evidence ...” First Pennsylvania Bank, N.A. v. Lehr, 293 Pa.Super. 189, 201-202, 438 A.2d 600, 607 (1981).

The trial court cites Owens v. McCurdy, 304 Pa.Super. 510, 450 A.2d 1028 (1982) in support of the proposition that the petitioner must proffer clear and convincing evidence to substantiate his averments. Reliance on Owens in this instance is misplaced. The Owens court merely stated this proposition as dicta and in so doing relied upon Johnson v. Leffring, 211 Pa.Super. 84, 235 A.2d 435 (1967). Johnson however predates by some six years the amendment to Pa.R.C.P. 2959(e) that sets forth the standard by proof that now governs. Accordingly, the order of the lower court is reversed and the case remanded. Jurisdiction relinquished.


author: BROSKY, Judge:

text:
    502 A.2d 232
    SECURITY BANK AND TRUST COMPANY, Appellant, v. ROLLIN, INC., Rollin Lloyd Baumgardner and Alice Perkins Baumgardner, His Wife v. MONROE COUNTY GENERAL AUTHORITY.
    Superior Court of Pennsylvania.
    Submitted Aug. 6, 1985.
    Filed Dec. 20, 1985.

      James A. Butz, Stroudsburg, for appellant.

      Edmund G. Flynn, Stroudsburg, for Monroe, appellee.
    Before BROSKY, ROWLEY and OLSZEWSKI, JJ.
   BROSKY, Judge:

This is an appeal from the order quashing appellant’s writ of garnishment against garnishee, the Monroe County General Authority. The central issue for our determination is whether either of two exceptions to the established doctrine of custodia legis permits appellant to name the Monroe County General Authority (herein the Authority) as garnishee. The trial court held that the Authority can not be subject to garnishment. We affirm.

Appellant, Security Bank and Trust Company, obtained a Confession of Judgment against defendant corporation, Rol-lin, Inc. on November 13, 1984 for the sum of $55,231.41. On December 12, 1984, the Authority, by a resolution made at its regular meeting, decided to seek an option contract on a certain 9.7 acre tract of land owned by Rollin. At that time, the Authority was in the beginning stages of the design and construction of a waste to energy facility in Monroe County. Consideration for this option contract was to be $5,000. Appellant obtained a Praecipe for a Writ of Execution against Rollin on the Confession of Judgment, naming the Authority as garnishee. The Authority answered interrogatories raising the objections that as an agency of the Commonwealth it was exempt from garnishment, and also that the $5,000 was not property owing to Rollin until acceptance of the option contract and tender of the consideration to Rollin. The trial court heard arguments and entered its order quashing the writ of garnishment.

All parties agree that it is well settled law in this state that the Commonwealth and its political and economic subdivisions are generally exempt from attachment proceedings of the instant kind. City of Erie v. Knapp, 29 Pa. 173 (1857), Commonwealth v. Mooney, 172 Pa.Super. 30, 92 A.2d 258 (1952). The reason for such a holding is logical; it would cause a great amount of public inconvenience if money held by the Commonwealth could be garnished. Essential public projects could be stopped; and the time taken to employ counsel, answer interrogatories, etc., would unduly burden the Commonwealth in the performance of its functions. Central Contracting Company v. C.E. Youngdahl & Co., 418 Pa. 122, 209 A.2d 810 (1965), Bucholz v. Cam, 288 Pa.Super. 33, 430 A.2d 1199 (1981).

Appellant correctly points to two exceptions to this exemption established by case law. The Commonwealth and its political and economic subdivisions are not exempt from garnishment proceedings when: (1) the political subdivision is authorized to routinely enter into industrial or commercial ventures and is permitted to “sue or be sued”. Youngdahl, supra; or (2) the public purpose for which the funds held has been achieved and the assets to be attached merely await distribution. Bucholz, supra; Wheatcroft v. Smith, 239 Pa.Super. 27, 362 A.2d 416 (1976); Commonwealth v. Collingdale Milkwork Company, 71 Pa.Cmwlth. 286, 454 A.2d 1176 (1983). The trial court correctly found that the Authority was exempt from garnishment proceedings because it was not routinely authorized to enter into commercial ventures, thus distinguishing it from Youngdahl, supra. It was on this finding that the court quashed the writ of garnishment. However, the trial court failed to completely address the second exception to the doctrine of custodia legis.

Turning our attention to this exception, we believe that the trial court was correct in its result. However, further discussion is warranted. A political entity of the Commonwealth remains exempt from garnishment proceedings when the public purpose for which the funds are held has yet to be achieved. Bucholz, supra. Here, the public purpose that the Authority intends to achieve is the construction and operation of a solid waste to energy plant, with the expectation that any electricity so produced will be sold to the public utility. The public purpose is not the purchasing of an option contract. Thus, the public purpose was not yet achieved in the instant case.

This project, as with all major construction projects, will require several months or years to complete. During this time many phases of construction will be completed where the payment of monies will be required to individuals or companies involved in the project. In this case, the Authority is only in the very beginning stages of the project. No land has been obtained, no bids taken for building the plant, no contractor hired. The Authority is attempting to purchase an option contract to purchase land which may or may not be the site of the proposed project. Appellant appears to contend that it is the end of these individual phases (i.e. the purchasing of the option contract) which allows the Authority to be named garnishee. Although this is an ingenious argument on behalf of appellant, we do not agree with the contention. Furthermore, none of the cases cited by appellant give rise to such a presumption and no argument has been made to justify our extending the exception.

Even if there were merit in appellant’s separate phases contention, the first stage of the Authority’s project would clearly be the designation and purchase of a specific site for the facility. Thus, since the land owned by Rollin may or may not be the site finally approved and purchased for the project, no singularly identifiable phase of the overall project has been achieved.

Therefore, we agree with the trial court that neither exception to the exemption of custodia legis has been met in the instant case. Thus, the Authority remains exempt from garnishment proceedings. Order affirmed.

ROWLEY, J., concurs in the result.

      . It is not clear from the record whether the proposed payment of $5,000 is property subject to garnishment. However, due to our holding that the Authority is exempt from being named garnishee, the question is not dispositive.


author: PER CURIAM: OLSZEWSKI, Judge,

text:
    502 A.2d 235
    In re ADOPTION OF B.K.W., Born: 1/23/73. Appeal of G.T.W. and S.W., Parents of Child. In re ADOPTION OF D.M.W., Born: 8/22/74. Appeal of G.T.W. and S.W., Parents of Child.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1985.
    Filed Dec. 20, 1985.

      John A. Roth, Latrobe, for appellants.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM:

Appellants, G.T.W. and S.W., appeal from an order of the Court of Common Pleas of Westmoreland County dismissing exceptions and making final an order terminating their parental rights with regard to their son, B.K.W., age 12, and daughter, D.M.W., age 11. We affirm.

On January 5, 1982, Westmoreland County Children’s Bureau filed a petition seeking the involuntary termination of appellants' parental rights. 23 Pa.C.S. § 2511(a)(2) and (5). A hearing was held on March 10, 1982, and was continued for six months to provide appellants an opportunity to engage in psychotherapy. After the six month period, a hearing was held and the trial judge found no significant improvement had taken place in appellants’ ability to care for their children. The single issue raised in the appeal before us is whether appellants “have received and are willing to continue to receive sufficient mental health treatment such as to cause their attitude and emotional stability to be sufficient to reunify the family and to avoid termination of parental rights.”

This court will not reverse an order for termination of parental rights unless it is apparent the trial court abused its discretion or committed an error of law. In Re Baby Boy P., 333 Pa.Super. 462, 482 A.2d 660 (1984). Of course, the burden of proof on the party seeking to terminate another’s parental rights is one of clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982):

Appellants have not requested custody but request that parental rights not be terminated and visitation reinstituted. The children have been under the custody of Westmoreland County Children’s Bureau since 1977. Appellants’ sole challenge to the termination proceeding is that they have improved sufficiently during the six month period of mental health treatment, and termination of their parental rights is no longer warranted.

After reviewing the record, we cannot agree. Both experts who testified at the hearing stated the necessary improvement had not occurred. Dr. Hugh Chavern, Director of the mental health center treating appellants, testified “both seem to be no different than they had been prior”, and “there have been no significant positive changes on the part of either.” (N.T. 10/22/82 p. 4 and p. 7). Gloria Bakin, a licensed psychologist, said “they both continue to exhibit the same behavior that brought them to my office the first time, that is, they showed a tendency toward expansive hostile acting out behavior and people with that behavior pattern generally become abusive parents.” (N.T. 10/22/82 p. 24). There was no other expert testimony with appellants relying only on their own personal testimony and that of the parent of a child for whom they babysat. We cannot say the trial court erred in concluding significant improvement had not occurred.

Order affirmed.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

Although I concur in the decision rendered by my esteemed colleagues, I differ in the reasoning supporting this judgment.

It is well settled that when an appellate court is faced with a termination of parental rights case, it must employ a broad, comprehensive scope of review. Matter of Adoption of Baby Boy Allen, 337 Pa.Super. 133, 486 A.2d 517 (1984); In re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984); Matter of Adoption of Ferrante, 334 Pa.Super. 53, 482 A.2d 1076 (1984); In re Baby Boy P., 333 Pa.Super. 462, 482 A.2d 660 (1984); In re Adoption of James J., 332 Pa.Super. 486, 481 A.2d 892 (1984) (en banc). In the latter case, this Court carefully noted a distinction between the duties imposed on the trial and appellate courts. It indicated that while the lower court is obligated to draw a conclusion based on clear and convincing evidence, the appellate court must insure that the trial court has satisfactorily examined all evidentiary resources, has conducted a full hearing, and has set forth its decision in a full discursive opinion. James J., 332 Pa.Superior Ct. at 491, 481 A.2d 894. Thus, unless it is apparent that the trial court abused its discretion, committed an error of law, or lacked eviden-tiary support for its findings, the reviewing court will not reverse an order terminating parental rights. Id., 332 Pa.Superior Ct. at 494, 481 A.2d at 896.

The obligation imposed on the trial and appellate courts in respectively deciding and reviewing parental termination cases is a serious one. Not only does a decision to terminate parental rights place upon a parent a stigma of parental unfitness, but it also ends the fundamental liberty interest of natural parents in their children. Because of the “delicate tension between the right of a parent to exercise the rights and obligations of a parent toward his child, ... and society’s interest in the nurturing, care, safety, and training of children,” the lower court must “insist that the full story be told and demonstrate in its opinion that the evidence has been weighed in consideration of the statutory requirements and the applicable standard of proof.” Id., 332 Pa.Superior Ct. at 492, 481 A.2d at 895. This need for a heightened standard of review can be understood by the United States Supreme Court’s analysis in Santosky v. Kramer, 455 U.S. 745,102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

455 U.S. at 753-754, 102 S.Ct. at 1394-1395, 71 L.Ed.2d at 606.

With this in mind, I affirm the trial court’s decision terminating the appellants’ parental rights in B.K.W. and D.M.W.

In the first instance, it is noteworthy that the burden of producing clear and convincing evidence is on the party seeking termination of parental rights. The parents, on the other hand, are not obligated to introduce any evidence to contradict what has been offered against them. As a result, this Court should not be concerned with the lack of testimony offered on behalf of the parents.

Thus, it is my belief that competent evidence exists to support the trial court’s findings. The children involved in this proceeding, D.M.W. and B.K.W., were ages three and four respectively when they were removed from their parents’ custody. Eight years have passed since this action. Throughout this period, appellants were instructed by authorities what they had to accomplish in order to maintain their rights in their children. The parents, however, have failed to achieve these goals. Instead their problems still exist in the form of substance abuse, dependency, manipulation of the system, explosive behavior, and a refusal to accept help.

1 therefore conclude that clear and convincing evidence of the appellants’ repeated, continued, and irremediable incapacity, abuse and neglect has been shown pursuant to 23 Pa.C.S.A. Sec. 2511(a)(2). In addition, I find support in the record that the parents have failed to remedy the conditions which initially occasioned the children’s removal from their care. Consequently, I feel that the termination would best serve the needs and welfare of the children under Sec. 2511(a)(5) of title 23.