author: McEWEN, Judge:

text:
    675 A.2d 1259
    Rita SALAZAR and Celitia Salazar, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1995.
    Filed April 2, 1996.
    Reargument Denied June 6, 1996.

      Arnold Machíes, Bala Cynwyd, for appellants.
    Otis V. Maynard, Philadelphia, for appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   McEWEN, Judge:

This appeal has been taken by Rita Salazar and Celitia Salazar (hereinafter appellants) from the judgment entered against them and in favor of Allstate Insurance Company (hereinafter appellee), after the trial court granted the motion of appellee for summary judgment. We affirm.

Appellants Rita Salazar and Celitia Salazar were involved in an automobile accident on November 21, 1992, when the vehicle in which they were riding, while stopped at a red light, was struck in the rear by a vehicle which immediately fled the scene of the accident. Appellant, Rita Salazar, was operating a vehicle owned by a resident relative, Ruby Brown, which was insured by Allstate Insurance Company under a policy in which Ruby Brown was the named insured.

Ms. Brown had completed an application for original coverage for private passenger motor vehicle insurance under the Assigned Risk Plan on February 13, 1991, which, according to the rules of the Plan, was assigned to Allstate Insurance Company. Ms. Brown indicated her election to waive uninsured motorist (hereinafter UM) coverage for herself and resident relatives when she signed and dated Form PA-2000 as required by 75 Pa.C.S. § 1731. Ms. Brown also selected the limited tort option and signed and dated Form PA-1000 as required by 75 Pa.C.S. § 1705. The policy was renewed the following year with no alterations to the coverages originally selected by Ms. Brown.

Appellants sought UM benefits from Allstate based upon the November 21, 1992, accident. When Allstate denied the requested UM benefits as a result of the waiver of UM protection by Ms. Brown, the named insured under the policy, appellants instituted this action in the court of common pleas seeking recovery of UM benefits. The case was heard before a panel of arbitrators pursuant to 42 Pa.C.S. § 7361(a). The panel of arbitrators awarded appellants a total of $17,500.00 in damages and appellee filed a timely appeal de novo to the court of common pleas and moved for summary judgment on the grounds, inter alia, that the waiver of UM coverage precluded recovery of UM benefits by appellants. The distinguished Judge Albert F. Sabo granted the motion of appellee for summary judgment on May 12, 1995, and the instant appeal timely followed.

Appellants contend that summary judgment was improperly entered against them since:

Appellants are entitled to uninsured motorist benefits where the procedures followed by appellee to have the insured reject uninsured motorist protection at the time of application for original coverage and subsequent renewals were not in compliance with statutory requirements.
The limited tort election form executed by the insured was not a proper form to accomplish a knowing election pursuant to 75 Pa.C.S. § 1705.
Appellants suffered injury that met the limited tort threshold.

Our review of an order granting summary judgment is, of course, plenary.

In reviewing an order granting a motion for summary judgment, we must view the record in the light most favorable to the non-moving party. Dorohovich v. West American Insurance Co., 403 Pa.Super. 412, 589 A.2d 252 (1991). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Moreover, in summary judgment proceedings, it is not the court’s function to determine the facts, but only to determine if an issue of material fact exists. Godlewski v. Pars Manufacturing Co., 408 Pa.Super. 425, 597 A.2d 106 (1991). Summary judgment should only be granted in those cases which are free and clear from doubt. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983).
Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusion that no genuine issue of material fact exists and [that] the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).

Acme Markets v. Federal Armored Express, 437 Pa.Super. 41, 45, 648 A.2d 1218, 1220 (1994), quoting American States Ins. Co. v. Maryland Casualty Co., 427 Pa.Super. 170, 180-81, 628 A.2d 880, 885-86 (1993).

The trial court entered summary judgment against appellants after concluding that recovery by appellants of UM benefits was precluded as a result of the knowing waiver of UM benefits by the named insured, Ms. Brown. Appellants contend that Ms. Brown did not knowingly and intelligently waive UM motorist coverage in the absence of compliance by Allstate with Section 1791 of the Motor Vehicle Financial Responsibility Law. Thus, appellants argue, in the absence of a valid waiver, UM coverage must be extended to appellants.

Section 1791 provides, in relevant part, as follows:

§ 1791. Notice of available benefits and limits.
It shall be presumed that the insured has been advised of the benefits and limits available under this chapter provided the following notice in bold print of at least ten-point type is given to the applicant at the time of application for original coverage, and no other notice or rejection shall be required:
IMPORTANT NOTICE
Insurance companies operating in the Commonwealth of Pennsylvania are required by law to make available for purchase the following benefits for you, your spouse or other relatives or minors in your custody or in the custody of your relatives, residing in your household, occupants of your motor vehicle or persons struck by your motor vehicle:
(6) Uninsured, underinsured and bodily injury liability coverage up to at least $100,000 because of injury to one person in any one accident and up to at least $300,000 because of injury to two or more persons in any one accident or, at the option of the insurer, up to at least $300,000 in a single limit for these coverages, except for policies issued under the Assigned Risk Plan. Also, at least $5,000 for damage to property of others in any one accident.
Additionally, insurers may offer higher benefit levels than those enumerated above as well as additional benefits. However, an insured may elect to purchase lower benefit levels than those enumerated above.
Your signature on this notice or your payment of any renewal premium evidences your actual knowledge and understanding of the availability of these benefits and limits as well as the benefits and limits you have selected.
If you have any questions or you do not understand all of the various options available to you, contact your agent or company.
If you do not understand any of the provisions contained in this notice, contact your agent or company before you sign.

75 Pa.C.S. § 1791.

The MVFRL provides that insurers must offer UM and underinsured motorist (hereinafter UIM) coverages equal to bodily injury liability coverage except where the insured, in writing, requests UM/UIM coverages in amounts less than the limits of liability for bodily injury purchased by the insured. 75 Pa.C.S. §§ 1731,1734.

If the insurer provides notice pursuant to the form set forth in section 1791, the insured is presumed to have been advised of the benefits and limits available under this chapter. 75 Pa.C.S.A. § 1791. If the insurer’s notice does not meet the requirements of section 1791, then the insurer must establish waiver pursuant to the rule set forth in Johnson v. Concord Mutual Insurance Co., 450 Pa. 614, 300 A.2d 61 (1973). Botsko v. Donegal Mutual Insurance Co., 423 Pa.Super. 41, 45-47, 620 A.2d 30, 32 (1993), allo. denied, 536 Pa. 624, 637 A.2d 284 (1993). In accordance with Johnson,
a waiver of the statutory right to certain levels of uninsured motorists coverage must be “[a]ffirmatively expressed in writing by the insured,” which must evidence “[a]n express agreement or acquiescence on the part of the insured to delete or relinquish this protection.... ” 450 Pa. at 621, 300 A.2d at 65.
Botsko [v. Donegal Mutual Insurance Co., supra at 45-47], 620 A.2d at 32, (quoting Byers v. Amerisure Insurance Co., 745 F.Supp. 1073, 1076 (E.D.Pa.1990), affirmed, 935 F.2d 1280 (3d Cir.1991)).

Tukovits v. The Prudential Ins. Co. of America, 448 Pa.Super. 540, 547-48, 672 A.2d 786, 789 (1996).

A knowing and intelligent election to lower or forego UM/UIM coverages may be established by the execution of the notice and waiver forms set forth verbatim in Section 1791. Section 1791 of the MVFRL provides that compliance with the notice creates a presumption “that the insured has been advised of the benefits and limits available under this chapter provided the following notice in bold print of at least ten-point type is given to the applicant at the time of application for original coverage, and no other notice or rejection shall be required!)]” 75 Pa.C.S. § 1791 (emphasis added).

The record lends no support for the argument of appellants that UM coverages equal to the limits of liability coverage must be provided to appellants by Allstate as a result of the failure of Allstate to comply with the notice requirements of Section 1791. The original application for coverage signed by Ruby Brown is contained in the record and reveals (1) that Ms. Brown did receive notice of the benefits and limits available under the MVFRL, (2) that the notice was in conformity with the form notice set forth in Section 1791, and (3) that, contrary to the assertions of appellant, this notice was printed in ten-point type. Thus, Section 1791 provides a presumption that Ms. Brown knowingly elected to waive UM benefits. 75 Pa.C.S. § 1791; Tukovits v. Prudential Ins. Co. of America, supra. Ms. Brown, on February 13, 1991, following receipt of the Section 1791 notice of availability of benefits, signed UM and UIM coverages rejection forms which expressly waived UM and UIM coverages. Ms. Brown’s signature on the waiver of UM/UIM form is further evidence of Ms. Brown’s actuhl knowledge and understanding of the available limits and coverages of UM and UIM benefits. Accordingly, we conclude that the trial court properly found that appellants had failed to establish that there existed a genuine issue of material fact, precluding the entry of summary judgment, as to whether Ms. Brown had knowingly and intelligently waived UM coverage. We, therefore, affirm the order which granted summary judgment in response to the motion filed by appellee.

Order affirmed.

      . The trial court also found that Ms. Brown had made a knowing and intelligent election of the limited tort option pursuant to 75 Pa.C.S. § 1705. Due to our disposition of the issue of the waiver of UM coverage, we do not reach this issue. We note, however, that the issue is presently before the Superior Court en banc in Donnelly v. Bauer, No. 691 Philadelphia 1996, and Havel v. McCarty, No. 695 Philadelphia 1996.

      . The presumption provided by Section 1791 would appear to be factually as well as legally correct in the instant case as Ms. Brown remained insured by Allstate and has not added UM or UIM coverages to her policy despite her actual knowledge of the availability and nature of these coverages.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    675 A.2d 1263
    COMMONWEALTH of Pennsylvania v. John S. HUDAK, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1995.
    Filed April 16, 1996.

      Joel M. Dresbold, Pittsburgh, for appellant.
    Barbara A Jollie, Assistant District Attorney, Greensburg, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

In this appeal, we are asked to determine whether the principles of double jeopardy barred the prosecutions of a defendant in two different counties for receiving stolen property (RSP), where the defendant stole an automobile in one county and drove it into a second county. Because we find that the offenses constituted separate criminal episodes initiated and completed in two different counties, we conclude that the principles of double jeopardy were not implicated.

On April 28,1994, John S. Hudak was arrested and charged with RSP in Allegheny County in connection with an automobile that he had taken from a parking lot in Westmoreland County earlier that week. On June 15, 1994, Hudak pleaded guilty to that charge, and the court sentenced him to a term of 6 months’ intermediate punishment followed by 24 months’ probation.

On July 8, 1994, Westmoreland County authorities charged Hudak with theft by unlawful taking or disposition of the same automobile and two counts of RSP in regard to the car and the personal items found therein. Hudak filed a motion to dismiss these charges, claiming that the prosecution in Westmoreland County was precluded because of his guilty plea to the charge in Allegheny County. The court denied this motion. Following a bench trial, Hudak was found guilty of all charges. After determining that the sentence for the RSP convictions merged with the sentence for the theft conviction, the court sentenced Hudak to a term of 2 to 4 years’ imprisonment. This appeal followed.

On appeal, Hudak raises the following issue:

Did the lower court err in trying and sentencing [Hudak] on Theft by Unlawful Taking and two counts of [RSP] in regard to the theft of an automobile, after [Hudak] had previously pleaded guilty and been sentenced in a different county to [RSP] in regard to the theft of the same automobile?

Brief for Appellant at 3.

Initially, we note that a defendant is guilty of theft by unlawful taking or disposition “if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.” 18 Pa.C.S. § 3921(a). A defendant is guilty of RSP “if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen.... ” 18 Pa.C.S. § 3925(a). The word “receiving,” as used by that section, means “acquiring possession, control or title.... ” 18 Pa.C.S. § 3925(b). Further, this Court has determined that one who is the original misappropriator of property can be convicted as the receiver of that property. Commonwealth v. Shaffer, 279 Pa.Super. 18, 26, 420 A.2d 722, 726 (1980); Commonwealth v. Kuykendall, 318 Pa.Super. 429, 465 A.2d 29 (1983).

In his brief to this Court, Hudak maintains that he should not have been prosecuted in Westmoreland County for theft by unlawful taking because “one cannot be sentenced for taking an item after he has been sentenced for illegally receiving the same item____” In making this claim, Hudak relies upon a long line of cases which hold that for sentencing purposes, the crime of RSP merges into the crime of theft by unlawful taking. See Commonwealth v. Wilson, 312 Pa.Super. 77, 81, 458 A.2d 244, 245 (1983); Commonwealth v. Murray, 246 Pa.Super. 422, 427, 371 A.2d 910, 912 (1977). However, there is no merger issue present in this case. Hudak does not allege that the sentence he received in Westmoreland County was improper. In fact, Hudak could not prevail on such a claim because the Westmoreland County sentence for RSP was properly merged with his sentence for theft by unlawful taking. Rather, Hudak maintains that the Westmoreland prosecution should have been barred because of the sentence he had already received in Allegheny County. Hudak fails to set forth any authority to support this position, and we are unaware of any such authority. As a result, we find no merit to this contention.

Hudak also asserts that the Westmoreland County prosecution for RSP in connection with the automobile should have been barred because it violated the provisions of 18 Pa.C.S. § 109. In pertinent part, § 109 provides:

When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances:
(3) The former prosecution resulted in a conviction. There is a conviction if ... a plea of guilty [has been] accepted by the court.

18 Pa.C.S. § 109(3). Here, Hudak was charged with RSP in both jurisdictions, and he entered a guilty plea to the Allegheny County charge, which constituted a conviction for purposes of § 109. However, the trial court found and, after a review of the record, we agree that the prosecutions in each county were based upon different facts. Specifically, the Allegheny County prosecution was based upon Hudak’s possession or retention of the automobile in Allegheny County on April 28, 1994, while the prosecution in Westmoreland County was based upon his possession or retention of the car in Westmoreland County on April 25, 1994. Thus, because these prosecutions were based upon different facts, we conclude that § 109 did not bar the prosecution in Westmoreland County.

Having reached this conclusion, we next address Hudak’s claim that the second prosecution for RSP was barred by principles of double jeopardy. Commonwealth v. Hockenbury, 446 Pa.Super. 593, 606 n. 9, 667 A.2d 1135, 1142 n. 9 (1995) (“necessity to consider double jeopardy complaints only arises once it is determined that statute does not require granting relief requested”), citing Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983).

It is well-settled that protections afforded an individual under the double jeopardy clauses contained in the United States Constitution, U.S. Const., Amend. V, and the Pennsylvania Constitution, Pa. Const., art. I, § 10, are “coextensive, involving the same meaning, purpose and end.” Commonwealth v. Quinlan, 433 Pa.Super. 111, 120 n. 4, 639 A.2d 1235, 1240 n. 4 (1994)[, alloc. granted, 540 Pa. 648, 659 A.2d 986 (1995) ]. Applying a unitary analysis, both provisions protect an individual against a second prosecution for the same offense[ ] where ... a conviction has occurred.

Id. at 606-607, 667 A.2d at 1142. In the present case, although the same car was involved in both offenses, Hudak retained or possessed the stolen car in two different counties on two different dates; thus, the elements of RSP were established in each jurisdiction. Accordingly, we find that the facts support a determination that the Allegheny and Westmoreland County prosecutions involved separate and distinct criminal offenses stemming from separate criminal episodes, initiated and completed in two different counties. Because the “principles of double jeopardy only operate to bar double prosecutions for a single offense[,]” id. at 609, 667 A.2d at 1143, we must conclude that Hudak’s prosecution in Westmoreland County for RSP in connection with the automobile was not barred on those principles.

Finally, Hudak contends, in essence, that the Westmoreland County prosecution for RSP in connection with the personal items located in the automobile should have been barred because it violated the provisions of 18 Pa.C.S. § 110. However, after a review of the record, the briefs of the parties, the applicable law and the Opinion of the trial court, it is our determination that there is no merit to this claim. The distinguished trial judge, the Honorable Gary P. Caruso, adequately discussed and properly disposed of this question. Accordingly, we affirm this contention on the basis of the trial court Opinion, dated September 2,1994, at 3-4.

Based on the foregoing, we affirm the judgment of sentence.

Judgment of Sentence Affirmed.

APPENDIX

In the Court of Common Pleas of Westmoreland County, Pennsylvania

Criminal Division — Law

Commonwealth of Pennsylvania v. John Hudak.

No. 1637 C 1994.

DECISION AND ORDER

CARUSO, Judge.

THIS matter is before the court as the result of the defendant’s Motion to Dismiss. The defendant contends that since he was allegedly convicted of charges stemming from the same incident in Allegheny County, he cannot now be convicted in Westmoreland County. On April 25, 1994, this defendant is alleged to have taken an automobile owned by Jason Ferreti that was then located at 10511 Center Highway, North Huntington, Westmoreland County. On April 28, 1994 the defendant was arrested in while in possession of this vehicle in Glassport, Allegheny County. A criminal information was filed in Westmoreland County charging the defendant with the commission of certain crimes in Westmoreland County that were alleged to have occurred on April 25, 1994. Specifically the charges are Theft by Unlawful Taking or Disposition, and two counts of Receiving Stolen Property. The factual basis for the charges in Westmoreland County are that the defendant committed the theft of the automobile in Westmoreland County, that he intentionally received, retained or disposed of the stolen automobile while in Westmoreland County and that he intentionally received, retained or disposed of certain stolen personal property contained in the automobile while in Westmoreland County.

There was also filed in Allegheny County a criminal information charging the defendant with the crime of Receiving Stolen Property alleging that this crime took place on April 28, 1994. The factual basis is that on April 28, 1994 while in Allegheny County, the defendant received, retained or disposed of the subject stolen automobile.

On June 15, 1994, the defendant entered a plea of guilty to the charge of Receiving Stolen Property in Allegheny County and was sentenced that same day.

The defendant contends that to be prosecuted on the Westmoreland County charges constitutes double jeopardy under the Fifth Amendment of the United States Constitution and Article 1, Sec. 10 of the Constitution of Pennsylvania and that Pennsylvania law bars further prosecution of the defendant.

The defendant first addresses the charge of Receiving Stolen Property. The defendant directs the court’s attention to 18 Pa.C.S. Sec. 109. That section sets forth the following:

When former prosecution is for a violation of the same provisions of the statutes and is based upon the same facts as the former prosecution, it is barred by such former prosecution under the following circumstances:
... (3) The former prosecution resulted in a conviction. There is a conviction if ... a plea of guilty is accepted by the court.

However, the prosecution in Allegheny County is not based upon the same facts as the prosecution in Westmoreland. The prosecution in Allegheny County is based upon possession of the property on April 28, 1994, in Glassport, Allegheny County. The prosecution in Westmoreland County is based upon possession of the property on April 25, 1994 in Westmoreland County. These are two distinct crimes. Certainly, Westmoreland County does not have jurisdiction to prosecute the defendant for possession of stolen property in Allegheny County. These offenses were committed against the peace of the respective counties and therefore the defendant was properly charged in both. Commonwealth v. Caden, 326 Pa.Super. 192, 473 A.2d 1047 (1984).

This same rationale applies to the defendant’s argument with regard to the charge of Theft by Unlawful Taking filed in Westmoreland. The charge of theft requires the proof of different elements to sustain a conviction. The factual basis set forth in the information in Westmoreland County for the charge of Theft by Unlawful Taking is different than the facts set forth as the basis for the charge of Receiving Stolen Property in Allegheny County. Again, the crime of Theft by Unlawful Taking was committed against the peace of Westmoreland County and therefore the defendant was properly charged in this county.

The defendant next contends that he cannot be prosecuted for the crime of Receiving Stolen Property with regard to the personal property that was located in the automobile at the time that it was stolen because this crime should have been charged in Allegheny County at the time the defendant was found in possession of the automobile. In support of this contention the defendant cites the case of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) and 314 A.2d 854 (Pa.1974) and 18 Pa.C.S. Sec. 110. This case and the provisions of the cited section establishes protection against multiple prosecutions arising from the same conduct or criminal episode. However, as the Superior Court directed in the case of Commonwealth v. Harris, 275 Pa.Super. 18, 418 A.2d 589 (1980), regardless of the relationship of the offenses, the application of Sec. 110 requires that the offense must have been within the jurisdiction of a single court. It will certainly remain a matter of proof regarding what items of personal property were in the vehicle at the time that it was taken in Westmoreland County, however, the charges were properly brought in this jurisdiction. There is a statutory qualification that the offenses have been “within the jurisdiction of a single court.” 18 Pa.C.S. Sec. 110(l)(ii) Here, the offenses have been committed in two different jurisdictions.

ORDER OF COURT

AND NOW, this 2nd day of September, 1994, in accordance with the foregoing DECISION, the Motion to Dismiss is DENIED.


author: HESTER, Judge.

text:
    675 A.2d 1267
    ERIE INSURANCE EXCHANGE, Appellant, v. Sandra W. MIDILI in Her Own Right and as Executrix of the Estate of Arnold W. Midili, Deceased.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1996.
    Filed May 1, 1996.

      Stephen P. McCloskey, Washington, for appellant.
    John A. Tumolo, Pittsburgh, for appellee.
    Before JOHNSON, FORD, ELLIOTT and HESTER, JJ.
   HESTER, Judge.

Erie Insurance Exchange appeals the June 21,1995 order in which the trial court sustained the preliminary objections of appellee and dismissed this action. Appellee argues that the order appealed from has the effect of requiring the parties to arbitrate this matter, and therefore, it is not a final, appeal-able order. We agree and quash this appeal.

Appellant instituted this action against Sandra W. Midili both individually and in her capacity as executrix of the estate of her deceased husband, Arnold W. Midili. On October 3, 1994, Mr. Midili was killed in an automobile accident when his car was struck by a vehicle operated by Donald Weis acting within the course of his employment with Allegheny County. Since Mr. Weis had proceeded through a red light, Allegheny County paid the $500,000 limits of its liability under the Political Subdivision Tort Claims Act.

At the time of the accident, Mr. Midili was insured under a automobile policy issued by appellant with underinsured motorist coverage in the amount of $300,000. The policy provides that an underinsured vehicle does not include a motor vehicle owned by any governmental unit or agency. The policy also provides that all disagreements over the legal right to recover damages from the operator or owner of an underinsured motor vehicle will be determined by arbitration.

Pursuant to the arbitration provision of the policy, appellee demanded that appellant arbitrate her right to recover under-insured motorist coverage and appointed an arbitrator. In response, appellant filed this declaratory judgment action asking the trial court to declare that the underinsured motorist coverage provided under the policy did not apply to the accident. Appellee then filed preliminary objections contending that the trial court did not have jurisdiction over this matter since the parties had agreed to submit underinsuredmotorist-coverage issues to arbitration. See 42 Pa.C.S. § 7541(c)(2)(relief under the Declaratory Judgments Act may not be granted as to any proceedings within the exclusive jurisdiction of a tribunal other than a court). Thus, in essence, appellee requested that the parties be required to arbitrate the coverage issue. The trial court granted the preliminary objections and dismissed the complaint. This appeal followed.

Appellee asks that we quash this appeal based on the fact that the order from which the appeal has been taken is, in effect, a non-final order compelling the parties to arbitrate the issue. Appellant counters that since the courts have jurisdiction to entertain whether a provision of an insurance contract is contrary to a constitutional, legislative, or administrative mandate, we have jurisdiction despite the provisions of 42 Pa.C.S. § 7541(c)(2) and the parties’ agreement to arbitrate the issue of underinsured motorist coverage. See Azpell v. Old Republic Insurance Co., 526 Pa. 179, 584 A.2d 950 (1991); Sands v. Andino, 404 Pa.Super. 238, 590 A.2d 761 (1991). Under Sands and Azpell, the courts have jurisdiction pursuant to the Declaratory Judgments Act to decide coverage issues under an insurance contract even though the parties have agreed to arbitrate coverage issues.

Both parties are correct, but their arguments involve different issues. Appellee’s position relates to the timing of an appeal to this court; appellant’s position relates to whether the courts have jurisdiction to entertain the issue at all under the Declaratory Judgments Act.

Sands concerns whether we even may entertain the merits of an issue that the parties agreed to arbitrate under 42 Pa.C.S. § 7541(c)(2), which provides that the Declaratory Judgments Act does not apply to actions within the jurisdiction of another tribunal. Appellee’s position is not that we do not have and never will have jurisdiction to decide the merits of this action. Appellee’s position is that the appeal is prematurely taken from a non-final, interlocutory order and that appellant will have to wait to seek judicial review of this matter until after the arbitration transpires.

The effect of the trial court order is to compel arbitration of this matter. The law is clear that an order compelling the parties to arbitrate a matter is not a final order. Maleski v. Mutual Fire, Marine and Inland Insurance Co., 534 Pa. 575, 633 A.2d 1143 (1993); 42 Pa.C.S. § 7320. Appellant must proceed to arbitrate the issue presented, as required under its own insurance policy, and may obtain court review of the arbitrators’ decision in accordance with the appropriate procedure.

Appellant refers us to a plethora of cases in which a coverage issue under an insurance policy was decided on the merits by the courts even though the parties had not previously arbitrated the issue. We are aware of these cases, but they are not applicable because in them, neither party requested arbitration of the coverage issue. In those cases, either the insured or the insurer instituted a Declaratory-Judgments-Act action, and the other party did not request arbitration but instead, elected to submit the coverage issue to the trial court. In that situation, the parties must be viewed as mutually waiving the arbitration provision in their contract.

Herein, however, appellee has not agreed to submit this case to the courts pursuant to the Declaratory Judgments Act and has invoked the arbitration provision of the contract. Since that provision was invoked rather than waived, it must be enforced. The arbitrators now have jurisdiction, regardless of appellant’s assertion that its right to prevail in this action is clear. Messa v. State Farm Insurance Co., 433 Pa.Super. 594, 641 A.2d 1167 (1994). Since the order has the effect of requiring the parties to arbitrate this matter, it is a non-final order from which no appeal lies.

Appeal quashed.


author: POPOVICH, Judge.

text:
    675 A.2d 1269
    COMMONWEALTH of Pennsylvania, Appellee, v. Michael J. MORAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1996.
    Filed May 2, 1996.

      Deborah T. Lux, Bellefonte, for appellant.
    J. Karen Arnold, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.
    Before POPOVICH, SAYLOR and EAKIN, JJ.
   POPOVICH, Judge.

This case involves an appeal from the judgment of sentence for possession of a controlled substance (marijuana), driving without a license, driving on the wrong side of the roadway and driving a vehicle at an unsafe speed by the appellant, Michael J. Moran. We affirm in part and vacate in part.

The facts of this case are undisputed: On January 21, 1993, the appellant operated his vehicle into the opposite lane of traffic and collided with a truck (causing injuries to its occupants) and a tractor trailer. On March 26, 1993, the appellant was charged by Pennsylvania State Trooper David M. Toohey with violating 75 Pa.C.S.A. § 3731(a)(2)(Driving Under the Influence of Marijuana), § 1501(a), § 3301(a), § 3361, and 35 Pa.S.A. § 780-113(a)(3), the latter of which arose when a container of marijuana was found on the appellant’s person while being treated at Centre Community Hospital for injuries.

After all charges were held for court, the appellant filed a writ of habeas corpus challenging the sufficiency of the evidence (as to the DUI charge) and the prosecution of the summary offenses as filed exceeding the statute of limitations for instituting such charges. The court denied the writ and a subsequently filed Omnibus Pre-Trial Motion seeking dismissal of the summary offenses as violative of the statute of limitations. A jury trial followed resulting in guilty verdicts being returned on all charges save for the DUI charge.

The sentencing hearing was set for December 6, 1994, wherein counsel for the appellant questioned the Pre-Sentence Report’s recommendation that “restitution” in the amount of $543.99 be paid the “Victim ... Centre County District Attorney’s Office----* * * This amount include[d] $480 in Airfare for Dr. Tony Constantino”. It was counsel’s position that the appellant was not responsible for such “restitution” since the doctor “had testified for the Commonwealth with respect to the marijuana level in [the appellant’s] blood and urine samples ... with respect to the DUI charge[, an offense for which the appellant] was acquitted____ [S]o[, the appellant] ... objected] to ... being ordered to pay any restitution----” N.T. 12/6/94 at 2-3.

Notwithstanding the appellant’s argument, the court imposed the following sentence for the conviction of possessing a small amount of marijuana; to-wit:

... probation ... for a period of thirty days subject to the following requirements: You pay the costs of prosecution and supervision fee. Pay a fine in the amount of $200.00. Violate no law of the Commonwealth or any other jurisdiction during ... probationary period. You comply with all conditions, rules and regulations as required by the probation office. If you have not already done so, you make restitution in the amount of $51+8.99 to the Centre County District Attorney’s Office. Judgment will be entered against you and in favor of the probation department for all restitution, fees, fines and costs so ordered.[] [Emphasis added]

Id. at 10; see also Record No. 16 (Sentence reduced to written order dated December 6,1994, and provided that the appellant pay the costs of prosecution [Paragraph 1]) and restitution (in the amount of $543.99) to the District Attorney’s Office [Paragraph 5],

The appellant filed a Post-Sentence Motion claiming that “[t]he restitution ordered in this case [wa]s improper and inappropriate in that the jury acquitted [the appellant] of ... Driving Under the Influence of Marijuana * * * [and the appellant] d[id] not have the necessary financial resources ... to pay restitution....” Paragraphs 3 and 4. The sentencing court disagreed and denied the appellant’s motion to modify his sentence. This appeal ensued and raises two issues for our consideration, the first of which alleges that the trial court erred in denying the appellant’s writ of habeas corpus and motion to dismiss the summary offenses with the complaint’s filing beyond the 30-day statute of limitations under 42 Pa.C.S.A. § 5553 to initiate prosecution of summary offenses.

It is undisputed that the appellant was not charged with the summary offenses recited earlier until more than sixty days after the vehicular accident. As observed by the trial court on this point:

... the Defendant and the occupant of one of the two remaining vehicles involved in the collision were both hospitalized for a significant period, the test results establishing the presence of marijuana in Defendant’s blood on which the Section 3731(a)(2) charge was based were not received until after the thirty day period, and the results of the test of the marijuana confiscated from the Defendant following the incident, on which the possession/small amount count is based was received later. It was impossible for the Commonwealth to have filed the court charges in its complaint prior to its receipt of the test results or within the thirty day period and therefore, we hold that Defendant’s Petition for Writ of Habeas Corpus shall be denied.

Court Opinion, 9/1/93 at 2. We agree. The summary offenses sought to be dismissed were part and parcel of the criminal misdemeanor complaint charging the appellant with DUI, and, as such, “shall be charged in the same complaint as the higher offensef ] and shall be disposed of as part of the court case.” Commonwealth v. Kline, 405 Pa.Super. 412, 592 A.2d 730, 731 n. 1 (1991). If such did not occur, we would be confronted with a double jeopardy issue. See Commonwealth v. Caufman, 417 Pa.Super. 131, 611 A.2d 1300 (1992); Commonwealth v. Bellezza, 412 Pa.Super. 469, 603 A.2d 1031 (1992); Commonwealth v. Adams, 406 Pa.Super. 493, 594 A.2d 727 (1991). Moreover, the appellant has failed to show how he was prejudiced by the delay in initiating prosecution beyond the thirty-day time-limit set forth in Section 5553 in litigating summary offenses. Cf. Commonwealth v. Schimelfenig, 361 Pa.Super. 325, 522 A.2d 605 (1987)(en banc) (defendant must show how he was prejudiced by failure to file complaint in timely manner for DUI offense to be dismissed; defendant’s inability to show prejudice warranted prosecution for DUI offense). Accordingly, the appellant’s first claim is found wanting.

The second issue posed for our consideration challenges the “legality” of the sentence with the court’s requirement that “restitution” be paid the District Attorney’s Office despite the appellant’s exoneration of the charge underlying the “restitution” order.

Even the Commonwealth concedes in its brief at page 12 that 16 P.S. § 1403 governs the imposition of the costs of prosecution; it reads:

All necessary expenses incurred by the district attorney or his assistants or any officer directed by him in the investigation of crime and the apprehension and prosecution of persons charged with or suspected of the commission of crime, upon approval thereof by the district attorney and the court, shall be paid by the county from the general funds of the county. In any case where a defendant is convicted and sentenced to pay the costs of prosecution and trial, the expenses of the district attorney in connection with such prosecution shall be considered a part of the costs of the case and be paid by the defendant. [Emphasis added].

Giving the statute a common sense interpretation, the statute explicitly, permits a District Attorney to be reimbursed for expenses incurred in prosecuting cases, with the proviso that the defendant be “convicted” and the expenses have arisen “in connection with such prosecution.” Here, the expenses for which the court required the appellant to repay the District Attorney relate specifically to a charge for which no conviction was obtained — DUI; to-wit:

Restitution in the amount of ... $543.99 was imposed by the court to cover: (1) court costs and fees; and (2) airfare in the amount of $480.00 for Anthony G. Constantino, Ph.D., the director of Toxicology at the American Medical Laboratories, Inc., in Chantilly, Virginia, who testified for the Commonwealth at trial concerning the levels of THC in Defendant’s blood and urine samples.
Restitution may be imposed by the Court in accordance with 42 Pa.C.S.A. § 9721(c), which provides:
Restitution — In addition to the alternatives set forth in Subsection (a) of this section the court may order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained.

Court Opinion, 5/25/95 at 2. We read the court’s remarks as an erroneous application of the statutes permitting imposition of “restitution” as part of the sentencing scheme. In other words, the court has exceeded its statutorily permitted discretion in requiring “restitution” to the District Attorney’s Office, which in no way is a “victim” of the appellant’s DUI charge and subsequent dismissal thereof.

Here, as written, 42 Pa.C.S.A. § 9721(c)’s reference to “victim” is reserved to those who have sustained “damage or injury” because of the defendant’s criminal behavior. As for 16 P.S. § 1403, its very verbiage provides for the District Attorney’s expenses incurred in the investigation, apprehension and prosecution of a defendant to be paid by a defendant provided he/she “is convicted and sentenced ... in connection with such prosecution.” None of these objectives was stated by the court, either at the sentencing hearing on December 6, 1994, or in its opinion in reply to the appellant’s complaint that “restitution” was improper. Rather, the court stated clearly that the “restitution” portion of the sentencing order was to compensate the District Attorney for expenditures associated with producing an expert (Dr. Constantino) to testify with regard to a charge ultimately found by the jury to be insufficient to convict the defendant. Thus, we read the court’s issuance of an order of “restitution” of $543.99 to be contra the purpose and intent of 42 Pa.C.S.A. § 9721(c) and 16 P.S. § 1403, and, therefore, illegal.

In light of the error committed by the court, we have the option either to remand for resentencing or amend the sentence directly. Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750, 756 (1981). However, because the “restitution” is not an integral part of the sentencing scheme necessitating remand, contrast Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281, 1289-90 (1983), we will remedy the impropriety of the sentence now. Accordingly, we vacate that portion of the court’s sentence imposing restitution in the amount of $543.99; in all other regard, the judgment of sentence is affirmed.

Judgment of sentence affirmed in part and vacated in part. Jurisdiction relinquished.

      . 35 Pa.S.A. § 780-113(a)(31).

      . 75 Pa.C.S.A. § 1501.

      . Id. at § 3301(a).

      . Id. at § 3361.

      . The trial judge, sitting as a District Justice, rendered the verdicts on the summary offenses.

      . Albeit the appellant was sentenced for violating Sections 1501(a), 3301(a) and 3361 of the Motor Vehicle Code, the absence of a challenge to the penalty imposed for these offenses dispenses with the need to address the judgment of sentence as to these summary offenses. See Pa.R.Crim.P. 1410.

      . The appellant’s Post-Sentence Motion was filed December 9 and resulted in an order of court dated December 13, 1994, setting January 9, 1995, to hear argument on the motion. However, on December 28, 1994, the appellant perfected an appeal to this Court assailing the judgment of sentence. As to how, and if, this Notice of Appeal affected the lower court’s jurisdiction to hear and rule upon the sentencing issue, see note 8, infra.

      . Prosecution of summary offenses in a timely fashion affects the jurisdiction of a court to hear the case. Thus, when a defendant questions the timeliness of his/her prosecution, we, as an appellate court, may address the subject matter jurisdiction argument in such a format or sua sponte. Cf. Commonwealth v. Stadtfeld, 445 Pa.Super. 271, 665 A.2d 487 (1995) (Subject matter jurisdiction to hear appeal of summary offense, after statute of limitations set forth in 42 Pa.C.S.A. § 5553 had expired, could be raised at anytime or sua sponte by the court).
      Therefore, we find that the statute of limitations issue is subject to appellate review, it having been preserved for our review by the appellant's pre-trial motion and writ.

        . Appellant has failed to establish that evidence was lost, witnesses died or memories waned to the extent of hampering his defense. Thus, he cannot complain about the timeliness of his prosecution per Section 5553's thirty-day period.

      . The legality of sentence is a non-waivable issue and may be raised at any time or sua sponte by the court. Commonwealth v. Ford, 315 Pa.Super, 281, 461 A.2d 1281 (1983). This renders specious the Commonwealth’s argument that the issue is waived.

      . The term "prosecution” would have to be read as synonymous with "conviction” since a defendant's exoneration of all charges would not permit the imposition of costs of "prosecution” under 16 P.S. § 1403. There must be a nexus between the “conviction” and "restitution” imposed to uphold its imposition by the court. None exists here.


author: OLSZEWSKI, Judge.

text:
    675 A.2d 1273
    COMMONWEALTH of Pennsylvania v. Thomas STANDEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 12, 1996.
    Filed May 3, 1996.

      Michael J. Malloy, Assistant Public Defender, Media, for appellant.
    Joseph J. Mittleman, Deputy District Attorney, Media, for Commonwealth, appellee.
    Before BECK, KELLY and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge.

Appellant, Thomas Standen, appeals from the judgments of sentence entered in the Court of Common Pleas of Delaware County on September 22,1994. We affirm.

On the night of October 19,1993, Detective Michael Honieker of the Criminal Investigation Division of the Office of the Delaware County District Attorney was working on an undercover narcotics operation. Detective Honicker made arrangements to meet an individual named Joe Ward at the Country Squire Diner in Broomall, in order to purchase narcotics from him. The officer met Ward inside the diner and they discussed the proposed transaction. After some negotiation, the pair agreed that Ward would leave the diner to obtain the marijuana that Detective Honicker had requested and that they would rendezvous in the parking lot. Ward left in his own car and proceeded to appellant’s residence. Several minutes later, Ward returned to the diner in appellant’s vehicle, a 1989 Ford Bronco, which was being driven by appellant. Appellant drove to the rear of the Detective’s automobile where he stood waiting. Ward exited the vehicle and walked toward the Detective while appellant parked it approximately 15 feet from them. When the Detective asked why appellant was present, Ward replied that appellant was his marijuana supplier and was present to supervise the transaction and thereby protect his investment in it. Detective Honicker then gave Ward $400 for the marijuana. Ward got back into appellant’s vehicle and they returned to appellant’s house. On several occasions after that night, Ward confirmed to Detective Honicker that appellant was his marijuana supplier.

Detective Honicker prepared a criminal complaint and appellant was charged, in information # 5357-93, with possession of a controlled substance, possession of a controlled substance with intent to deliver, and criminal conspiracy as a result of the October 19, 1993 transaction. The Detective also prepared an affidavit of probable cause based upon which an arrest warrant was issued by District Justice David T. Videon. Thereafter, on January 14, 1994, Detective Honicker and two other detectives went to appellant’s residence to execute the warrant. Upon arrival, the officers informed appellant that they were arresting him for his involvement in the October 19, 1993 incident and also that his truck was being confiscated pursuant to the Controlled Substances Forfeiture Act, 42 Pa.C.S.A. § 6801 et seq., for its employment therein. Without provocation, appellant stated that there were additional controlled substances located in the vehicle. Police searched the vehicle and found the specified drugs exactly where appellant said they would be. As a result of the drugs found in the vehicle, a second criminal complaint, docketed at # 148-94, was filed against appellant in which he was charged with possession of a controlled substance and possession with intent to deliver.

The cases against appellant were consolidated and appellant filed a suppression motion. This motion was denied. Appellant then waived his right to a jury trial and entered into an agreement with the Commonwealth to present a stipulated trial to the court. Consequently, the notes of testimony from two preliminary hearings and from the suppression hearing as well as Pennsylvania State Police laboratory reports were presented to the lower court in lieu of further testimony. At the same time, the Commonwealth withdrew, in both matters, the charge of possession of a controlled substance. After a review of the materials proffered, the lower court found appellant guilty of all the remaining charges. Appellant was immediately sentenced on September 22, 1994, under # 5357-93, to two concurrent terms of incarceration of six to twenty-three months. On information # 148-94, appellant was also sentenced to imprisonment for six to twenty-three months; this sentence was to run concurrently with that imposed on # 5357-93.

This appeal, presenting challenges to the lower court’s denial of appellant’s motion to suppress evidence, followed. Appellant bases these challenges upon the alleged illegality of his arrest and the related warrantless search of his automobile. We therefore address, preliminarily, the issue of exactly which evidence appellant sought to have suppressed at trial. Our review of the record reveals that appellant filed suppression motions on both transcripts and that these were consolidated to facilitate the suppression hearing. See trial court opinion, 10/5/95 at 1. As to information # 148-94, the lower court held that the controlled substances found in appellant’s truck were not subject to suppression. Id. at 11. Further, following exhaustive discussion on information # 5357-93, the lower court concluded that it properly denied appellant’s “Motion to Suppress his Arrest.” Id. at 8.

Our analysis, however, indicates that the issue of suppression is entirely irrelevant to the charges contained in information # 5357-93. In so holding, we rely upon Commonwealth v. Verdekal, in which we held that

the United States Supreme Court has ruled that an illegal arrest, without more, has never been viewed as a bar to a subsequent prosecution nor as a defense to a valid conviction. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). A person is not a suppressible fruit and any illegality of detention cannot deprive the government of the opportunity to prove guilt through the introduction of evidence wholly untainted by the police misconduct. [Id.] The Pennsylvania Supreme Court has also held that an appellant cannot seek the suppression of his very person. Commonwealth v. Krall, 452 Pa. 215, 304 A.2d 488 (1973).

351 Pa.Super. 412, 421, 506 A.2d 415, 419-20 (1986). Accordingly, we conclude that it is not necessary to consider whether appellant’s arrest should be suppressed. Additionally, we note that the admissibility of the marijuana obtained on October 19, 1993, is unaffected by the legality of the police actions at the time of appellant’s arrest since such was obtained prior thereto.

In proceeding, therefore, we address appellant’s claims only as they relate to the lower court’s denial of suppression of the controlled substances involved in information # 148-94 which were obtained upon appellant’s arrest and the accompanying search of his truck. Our standard of review in such matters is well-settled:

In reviewing an order denying a motion to suppress evidence[,] we must determine whether the factual findings of the lower court are supported by the evidence of record. In making this determination, we may only consider the evidence of the Commonwealth witnesses and so much of the witnesses for the defendant as, fairly read in the context of the record as a whole, remains uncontradicted. If the evidence supports the findings of the lower court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Frank, 407 Pa.Super. 500, 502, 595 A.2d 1258, 1259 (1991) (citations omitted).

First, appellant claims that the affidavit upon which the warrant for his arrest was issued contained insufficient information to establish probable cause for his arrest and, as a result, the controlled substances subsequently found in his vehicle should have been suppressed on that basis. We disagree.

While appellant’s mere presence at the scene of the crime on October 19,1993, may not have been sufficient to constitute probable cause to arrest, we find that when such is considered in light of the remaining facts and circumstances contained in the affidavit submitted to District Justice Videon, there existed ample allegations to support a finding that appellant participated in the criminal transaction. Notably, we find Joe Ward’s movement between the diner and appellant’s home during a critical stage of the drug sale to be significant in establishing appellant’s involvement therein. Specifically, Ward met with appellant following the Detective’s request for marijuana and prior to supplying such to him. In light of this fact, we also find Ward’s statements to Detective Honicker regarding appellant on the night of October 19,1993, to weigh heavily in finding that probable cause existed for the issuance of an arrest warrant. Accordingly, appellant’s first argument must fail.

Appellant next claims that the search of his vehicle was illegal because no authority existed to search it without a warrant. Since we find that appellant consented to this search and that, therefore, no warrant was required, we must disagree.

We recently addressed the issue of consent and, in so doing, observed that

one of the specifically established exceptions to the requirement of a ... warrant ... is a search that is conducted pursuant to consent. It is well settled that if a person voluntarily consents to a search, evidence found as a result of that search is admissible against him. The consent, however, must be given freely, specifically, unequivocally, and voluntarily. The question [of] whether [the] consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.
The fact that a defendant has been placed under arrest and that he has not been informed of his constitutional rights, although factors which must be considered, do not constitute per se a barrier to a finding that consent to search was voluntarily given.

Commonwealth v. Washington, 438 Pa.Super. 131, 136-37, 651 A.2d 1127, 1130 (1994) (citations and quotations omitted).

In the instant case, appellant, upon being arrested and informed that his car was to be confiscated, supplied the arresting officers with the keys to his Ford Bronco. Further, without provocation or request for information from the officers, appellant voluntarily informed them that there were controlled substances, marijuana and magic mushrooms, in the vehicle. See N.T., 2/25/94 at 29-32, 56-57. Clearly, the fact that appellant informed the officers of the contents of his automobile when considered in conjunction with the fact that he provided them with the keys is sufficient to establish his consent to the search in conformity with the above stated standard.

Based upon the foregoing we conclude that the lower court did not err in denying appellant’s motion to suppress. Nevertheless, we pause to address the findings of the lower court that the search was proper on two other independent bases: (1) as a search incident to arrest and (2) as a search incident to the officers’ seizure of appellant’s vehicle under the Controlled Substances Forfeiture Act. We find that the lower court erred in its holding on both counts.

First, we address the trial court’s finding that the contraband was properly admissible since it was obtained pursuant to a valid search conducted incident to arrest. Our Supreme Court recently stated that:

Merely arresting someone does not give police carte blanche to search any property belonging to the arrestee. Certainly, a police officer may search the arrestee’s person and the area in which the person is detained in order to prevent the arrestee from obtaining weapons or destroying evidence, but otherwise, absent an exigency, the arrestee’s privacy interests remain intact as against a warrantless search.

Commonwealth v. White, 543 Pa. 45, 57, 669 A.2d 896, 902 (1995) (emphasis in original) (footnotes omitted). In the case sub judice, the search of appellant’s vehicle was not conducted pursuant to a search of the immediate area which appellant occupied while in custody. Clearly, then, a valid search incident to arrest was not conducted in this case.

Next, we address the lower court’s determination that the search of appellant’s vehicle was proper as incident to the officers’ seizure of appellant’s vehicle under the Controlled Substances Forfeiture Act. Following perusal of the Forfeiture Act itself and related case law, we hold that there does not exist an incidental right to conduct a search as held by the trial court.

The Forfeiture Act provides, in pertinent part, as follows:

§ 6801. Loss of property rights to Commonwealth
(a) Forfeitures generally. — The following shall be subject to forfeiture to the Commonwealth and no property right shall exist in them:
:fc * ^ ‡ Hs
(4) All conveyances, including ... vehicles ..., which are used ... to transport, or in any manner facilitate the transportation, sale, receipt, possession or concealment of [controlled substances, drug paraphernalia, and equipment.]
* % # H* ‡ *
(b) Process and seizure. — Property subject to forfeiture under this chapter may be seized by the law enforcement authority ... without process ... if:
(4) there is probable cause to believe that the property has been used or is intended to be used in violation of The Controlled Substance, Drug, Device and Cosmetic Act.
******
(c) Seizure without process. — In the event seizure without process occurs, as provided herein, proceedings for the issuance thereof shall be instituted forthwith.

42 Pa.C.S.A. § 6801.

A reading of this statute indicates that a person’s property right in seized assets is not relinquished until forfeiture occurs. 42 Pa.C.S.A. § 6801(a). Consequently, at the time of seizure, the person whose property is taken retains an interest in that property. In subsequently determining whether forfeiture is appropriate, it is first necessary to comply with sections 6801(c) and 6802. These sections mandate the issuance of process and set forth the necessary procedures to be conducted in the Court of Common Pleas in the district where the property is located. See Commonwealth v. Nineteen Hundred and Twenty Dollars United States Currency, 149 Pa.Commw. 132, 612 A.2d 614 (1992); Commonwealth v. One 1988 Suzuki Samurai, 139 Pa.Commw. 68, 589 A.2d 770 (1991).

Since a party whose assets are seized but not yet forfeited has a property right in those assets and the entitlement to process before title may be divested, we find that that party also has a legitimate expectation of privacy in that asset. An investigative warrantless search of the asset during such period, as occurred in the present case, would, therefore, be violative of the constitution absent the independent applicability of an exception to the warrant requirement. See United States v. Salmon, 944 F.2d 1106 (3d Cir.1991); White, supra.

AFFIRMED.

BECK and KELLY, JJ., concur in the result.


author: CAVANAUGH, Judge:

text:
    675 A.2d 1278
    COMMONWEALTH of Pennsylvania v. Roxie AIELLO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 12, 1995.
    Filed May 6, 1996.

      Joseph E. Buckley, Jr., Brookville, for appellant.
    Charles J. Duke, Dist. Atty., Bradford, for Com., appellee.
    Before CAVANAUGH and JOHNSON, JJ., and CERCONE, President Judge Emeritus.
   CAVANAUGH, Judge:

Roxie Aiello appeals from the judgment of sentence of two days to one year in the McKean County Correctional facility. The Honorable John Cleland of the McKean County Court of Common Pleas imposed this sentence after a jury found Aiello guilty of driving under the influence of alcohol, careless driving and driving with a blood alcohol content of greater than .10%. We affirm.

The record supports the facts as follows. On November 29, 1993, at approximately 9:00 p.m., Aiello lost control of her car on Oak Street in Kane Borough, McKean County. She skidded into a parked car, forcing that car into the vehicle in front of it. This impact caused Aiello’s head to strike the steering wheel and the windshield of the car. It also caused her to briefly lose consciousness.

After receiving calls from residents of Oak Street, Officer Anderson of the Kane Borough Police arrived on the scene. He escorted Aiello to the hospital in his police vehicle. Upon arriving at the hospital, Officer Anderson advised Aiello that she could either consent to a blood test for alcohol or be subject to a potential suspension of her license for one year. Aiello consented to the blood test, which was administered. This test revealed Aiello’s blood alcohol content to be .35%. The results of this blood test were admitted as evidence during trial.

On appeal, Aiello raises the following issue:

Is it manifestly unfair and therefore violative of Due Process under the Federal and State Constitution to advise a motorist who is not actually under arrest, that she will be subject to the mandatory license suspension requirements of 75 Pa.C.S. § 1547 which are only applicable to a motorist actually under arrest for violation of 75 Pa.C.S. § 3731 [driving under the influence of alcohol]?

After reviewing the relevant law, we find appellant’s contentions to be without merit. Section 1547(a)(1), which authorizes blood tests for alcohol, provides:

(a) General Rule. Any person who, drives, operates, or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of the motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both;

75 Pa. Cons. Stat. Ann. § 1547(a)(1) (emphasis added).

Initially, we note that appellant cites Gresh v. Commonwealth, 76 Pa.Cmwlth. 483, 464 A.2d 619 (1983) for the proposition that an arrest is necessary for the Department of Transportation to suspend a driver’s license under the mandatory suspension provisions of § 1547(b). Appellant correctly notes that a person must be placed under arrest prior to being subject to the mandatory license suspension provisions of § 1547(b), but this arrest requirement has not been extended to situations where a person’s blood is tested under the implied consent law of § 1547(a)(1). Commonwealth v. Mordan, 419 Pa.Super. 214, 615 A.2d 102 (1992), aff'd 534 Pa. 390, 633 A.2d 588.

It is clear that, under § 1547(a)(1), a person may be subjected to blood tests for alcohol without first being arrested. See Commonwealth v. Urbanski, 426 Pa.Super. 505, 511, 627 A.2d 789, 792 (1993). Moreover, since the statute implies consent, a person’s informed consent to submit to the blood tests is unnecessary. Mordan, 419 Pa.Super. at 219, 615 A.2d at 107. Neither does a person have an unsanctioned right to refuse the blood test, since consent is given as a condition of a license to drive. Id.

Rather, to administer a blood test under § 1547(a)(1), a police officer need only have reasonable grounds to believe that a person was driving under the influence of alcohol. See Urbanski, supra. “Reasonable grounds” has been interpreted to mean “probable cause;” thus, the police officer must have “knowledge of sufficient facts and circumstances, gained through trustworthy information, to warrant a prudent man in the belief that a crime has been committed.” Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974). See also Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308, 315 (1992).

Instantly, the police arrived after a vehicle obviously driven by Aiello had crashed into a parked car. The trial court summarized the facts to support probable cause that appellant was driving under the influence as follows:

Officer Anderson testified that he found the defendant sitting at the wheel of her car; she had blood on her face and clothing; she refused medical assistance at the scene; she “staggered and was not good on her feet;” and she told him that “she had one or two mixed drinks.”

Based on these facts, Officer Anderson had reasonable grounds to believe that Aiello had been driving under the influence of alcohol. Therefore, the police officer had authority to administer the blood test under § 1547(a) and the results of this test were properly admitted at trial.

Appellant also argues that her constitutional rights were violated because she was transported to the hospital without being placed under arrest so that the blood tests could be administered. Appellant cites Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452, 467 (1974) for support. In Quarles, this court determined that, while administering blood tests at the scene of a stop may be reasonable, transporting a person to a hospital or police barracks to conduct blood tests for alcohol may constitute an unreasonable search and seizure.

Instantly, although Officer Anderson escorted appellant to the hospital, she required medical attention for the injuries sustained in the accident. That the blood tests were administered at the hospital rather than at the accident scene therefore placed no additional burden on appellant. See Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414, 417 (1985) (distinguishing Quarles where defendant transported to hospital for serious injuries, not solely for blood tests). Therefore, appellant was not required to be placed under arrest prior to being read the “implied consent” provisions and, thereafter, being administered blood tests to determine blood alcohol content.

Therefore, we affirm the judgment of sentence.

      . It is respectfully suggested that this holding in Quarles is questionable. The decision rendered in 1974 was made by five members of the then seven member court with three judges concurring in the result only.


author: TAMILIA, Judge.

text:
    675 A.2d 1281
    Randy H. GRIM, Appellant v. Pamela J. GRIM, Deceased.
    Superior Court of Pennsylvania.
    Submitted March 18, 1996.
    Filed May 8, 1996.

      J. Christian Ness, York, for appellant.
    Karen L. Semmelman, York, for appellee.
    Before BECK, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge.

Husband, Randy S. Grim, appeals from the October 13,1995 Order directing him to pay $3,510.25 to Attorney Karen L. Semmelman, who represented wife in husband’s divorce action. The question before this Court is whether wife’s attorney may proceed in her own right, under the captioned divorce action, following the death of her client and prior to the entry of a divorce decree or resolution of related economic issues, to collect counsel fees from the surviving spouse.

Husband commenced the action on October 24, 1989. Wife retained Attorney Semmelman to represent her, but thereafter died on September 20, 1991, before the resolution of the divorce proceedings. Upon petition of counsel, and after a determination of the parties’ economic situations as they existed prior to wife’s death, the trial court granted relief to Semmelman reasoning wife’s death did not abate the issue of the counsel fees, the fees were reasonable, and the parties’ economic circumstances were such that would support an award of fees in wife’s favor. (Slip Op., Brillhart, J., 10/13/95, p. 3.)

In appropriate situations, the trial court may award counsel fees even after a divorce action has been abated because one of the parties has died. Drumheller v. Marcello, 351 Pa.Super. 139, 505 A.2d 305 (1986) (reversed on other grounds, 516 Pa. 428, 532 A.2d 807 (1987)). The Drumheller court made this finding when faced with a factual scenario wherein husband killed his estranged wife and then took his own life, adding “[t]he estate of a deceased party may nevertheless remain liable to an attorney for services which have been rendered in a divorce action.” Id. at 142, 505 A.2d at 307 (emphasis added). Therefore, while Semmelman may be entitled to recover fees for legal services rendered, her claim is against wife’s estate as she cannot proceed against husband for a debt which he did not incur and for which he is not legally responsible. Semmelman’s reliance on McDonald v. McDonald, 423 Pa.Super. 422, 621 A.2d 604 (1993), wherein the court found surviving husband liable for wife’s counsel fees, is misplaced. In McDonald, an interim court Order directing husband to pay counsel fees while the proceedings were pending had been entered prior to wife’s demise. There, a debt or “fixed obligation” existed. Id. at 425, 621 A.2d at 605. Such is not the situation herein. A logical analogy exists where wife incurs a debt via legal representation in a personal injury suit, but dies prior to resolution of the suit. The debt does not pass to husband upon wife’s untimely demise, but becomes a debt of wife’s estate. While admittedly the end result of Semmelman’s litigation may well be husband’s payment of wife’s debt, by a reduction of his share of wife’s estate, we nevertheless must vacate the Order of October 13, 1995, or risk setting undesirable precedent. Indeed, if a divorce action is abated, thereby divesting the trial court of jurisdiction, a third party cannot proceed against one of the parties to the litigation under the protection or guise of the discontinued caption. Accordingly, we find Semmelman’s action to recover fees for services rendered on wife’s behalf must be brought in Orphans Court against wife’s estate, rather than against husband pursuant to the divorce action.

Based on the foregoing reasons of law and fact, we vacate the Order entered October 13,1995.

Order vacated.

Jurisdiction relinquished.


author: CERCONE, Judge: JOHNSON, Judge,

text:
    675 A.2d 1282
    COMMONWEALTH of Pennsylvania, v. Kenneth McGINNIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1995.
    Filed April 22, 1996.

      R.E. Valasek, Lower Burrell, for appellant.
    John W. Peck, II, District Attorney, Arnold, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence for robbery, recklessly endangering another person, simple assault, theft, burglary, and related charges. We affirm.

In December, 1992, the Commonwealth filed a petition alleging appellant, a juvenile (age 17), had committed various criminal offenses and requesting certification of those offenses to adult criminal court. On January 6, 1993, the District Attorney’s office withdrew the petition to transfer. Subsequently, the Westmoreland County Juvenile Probation office filed a transfer petition. After a hearing, the lower court, on January 25, 1993, ordered that the charges, with one exception, be transferred to the criminal division of the lower court.

In the criminal division, a jury trial was held on November 9, 1993 (appellant was convicted of robbery, retail theft, recklessly endangering another person, simple assault, carrying firearms without a license, criminal conspiracy, theft, and receiving stolen property — 2 counts). Appellant did not file post-verdict motions. A second trial was held January 10-14, 1994. Appellant was convicted of theft — 2 counts, receiving stolen property — two counts, burglary — 2 counts, and criminal conspiracy. Appellant was sentenced to a five to ten year term of incarceration on the robbery charge, concurrent sentences of eleven and one-half to twenty-three months for carrying firearms without a license, criminal conspiracy, receiving stolen property, and theft. On the burglary conviction, appellant was sentenced to one to two years, consecutive to the robbery sentence, a concurrent sentence of one to two years on a second burglary conviction, and a concurrent term of eleven and one-half to twenty-three years for criminal conspiracy. Appellant did not file an appeal of the judgment of sentence.

In October, 1994, appellant filed a petition for post-conviction relief on the basis that he was denied his right of allocution at sentencing. The lower court granted the petition and conducted a re-sentencing hearing. At the re-sentencing hearing, the lower court re-instated the previous sentence. Appellant then filed the instant timely appeal in which he raises the following issues:

1. Whether the juvenile court erred in allowing the Westmoreland Juvenile Probation Office to initiate proceedings to adult criminal court when the district attorney’s office withdrew their petition for certification?
2. Whether the juvenile court erred in certifying appellant to be tried as an adult for the alleged offenses?

Brief for Appellant at 3.

We will first address the Commonwealth’s contention that the appeal should be dismissed. The Commonwealth has filed a motion to dismiss the appeal on the basis of appellant’s failure to file post-verdict motions after either trial, and his failure to file a direct appeal from the first judgment of sentence. We find no merit to this argument. The issue of certification of a juvenile to stand trial as an adult is jurisdictional and cannot be waived. Commonwealth v. Johnson, 542 Pa. 568, 669 A.2d 315 (1995); Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d 207 (1985).

Appellant first contends that the juvenile court erred in allowing the Westmoreland County juvenile probation office to initiate transfer proceedings after the district attorney’s office withdrew their petition. He contends that such an action was inconsistent with the role of a probation officer under the Juvenile Act. 42 Pa.C.S.A. §§ 6301-6365. We find no merit to this contention.

A petition for an adjudication of dependency or delinquency may be filed by “any person.” Id. § 6334. After a petition alleging delinquency based on criminal conduct has been filed, the court may then determine whether to transfer the matter to criminal court. Id. § 6355(a). A probation officer has certain designated roles under the Juvenile Act. Those roles include, inter alia, receiving and examining “complaints and charges of delinquency or dependency of a child for the purpose of considering the commencement of proceedings under this chapter.” Id. § 6304(a). Excluded from a probation officer’s duties are “[i]ncompatible roles, such as the power of arrest, conducting the accusatory proceeding in juvenile court, [and] representing the child in court.” Id. § 6304 (Official Comment).

It is clear under sections 6344 and 6304 that a probation officer may initiate proceedings under the Juvenile Act relating to the delinquency of a particular child. The probation officer may not conduct the accusatory proceeding in juvenile court or represent the child in court; however, the initiation of proceedings by the filing of a petition does not fall within these categories of incompatible activities. Here, the record reveals that the probation officer did not conduct the proceedings or represent appellant in court. It also reveals that the juvenile probation office determined after evaluating appellant in light of the charges at issue in this case, that appellant was not amenable to treatment in the juvenile system. Therefore, the office made the decision to initiate certification proceedings. N.T. 1/13/93 at 21-27. We find no error in the juvenile court’s decision to allow the juvenile probation office to initiate the proceedings in this matter.

Next, appellant contends that the juvenile court erred in certifying him to be tried as an adult. Before an appellate court will set aside a decision to transfer, the appellant must show a gross abuse of the broad discretion afforded the hearing judge. Commonwealth v. Bey, 249 Pa.Super. 185, 375 A.2d 1304 (1977). An abuse of discretion “is not merely an error of judgment, but the misapplication or overriding of the law or the exercise of a manifestly unreasonable judgment based upon partiality, prejudice or ill will.” Id. at 191, 375 A.2d at 1308. In order to comply with the Juvenile Act, a certification court must make a statement “sufficient to demonstrate that the question of certification has received the careful consideration of the juvenile court.” Commonwealth v. Sanders, 339 Pa.Super. 373, 383, 489 A.2d 207, 212 (1985). Such statement must set forth the basis for the certification order “with sufficient specificity to permit meaningful appellate review.” Id. (citations omitted).

Where a petition has been filed alleging delinquency on the basis of criminal conduct, the case may be transferred to criminal court for prosecution “if all of the following exist:”

(1) The child was 14 or more years of age at the time of the alleged conduct.
(2) A hearing on whether the transfer should be made is held in conformity with this chapter.
(3) Notice in writing of the time, place, and purpose of the hearing is given to the child and his parents, guardian, or other custodian at least three days before the hearing.
(4) The court finds:
(i) that there is a prima facie case that the child committed the delinquent act alleged;
(ii) that the delinquent act would be considered a felony if committed by an adult; and
(in) that there are reasonable grounds to believe all of the following:
(A) That the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, even though there may not have been a prior adjudication of delinquency. In determining this the court shall consider the following factors:
Age.
Mental capacity.
Maturity.
The degree of criminal sophistication exhibited by the child.
Previous records, if any.
The nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the Juvenile Court to rehabilitate the child.
Whether the child can be rehabilitated prior to the expiration of the Juvenile Court jurisdiction.
Probation or institutional reports, if any.
The nature and circumstances of the acts for which the transfer is sought.
Any other relevant factors.
(B) That the child is not committable to an institution for the mentally retarded or mentally ill.
(C) That the interests of the community require that the child be placed under legal restraint or discipline or that the offense is one which would carry a sentence of more than three years if committed by an adult.

42 Pa.C.S.A. § 6355(a). The burden falls on the Commonwealth to establish that the statutory prerequisites for transfer to adult criminal court have been met. Commonwealth v. Rush, 522 Pa. 379, 562 A.2d 285 (1989).

A juvenile court will be deemed to have properly considered and weighed the relevant information supplied for its consideration. Commonwealth v. McDonald, 399 Pa.Super. 250, 262, 582 A.2d 328, 333 (1990), citing Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). “[A]n appellate court may not require detailed or intricate explanations of the rationale for certification when a detailed juvenile file and arguments of counsel have been presented for consideration.” McDonald, 399 Pa.Super. at 262, 582 A.2d at 333-34. In such a case, the appellate courtjs focus of review is limited to whether the record as a whole reveals an abuse of discretion. Id. at 265, 582 A.2d at 335.

Appellant cites various instances of alleged error on the part of the trial court in determining that certification was proper. Brief for Appellant, at 12-14. We have reviewed those allegations, as well as the record of the proceedings in the lower court. The record shows that the lower court considered all of the relevant factors under 42 Pa.C.S.A. § 6355(a). It also supports the findings made by the court in its January 25, 1993 certification order. We conclude, based on our review, that the lower court did not abuse its discretion in certifying appellant to be tried in the adult criminal division of the court.

Judgment of sentence affirmed; motion to dismiss for failure to preserve issues denied.

JOHNSON, J. files a concurring statement.

JOHNSON, Judge,

concurring:

While I agree that the judgment of sentence should be affirmed, I write separately to express my discomfort with the Majority’s assertion, without discussion, that “[t]he issue of certification of a juvenile to stand trial as an adult is jurisdictional and cannot be waived.” Majority op. at 314. This principle has been applied in various contexts in this Commonwealth. For example, courts have held that entry of a guilty plea in criminal court does not preclude the defendant from challenging the trial court’s refusal to transfer the matter to juvenile court on direct appeal. See Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982); Commonwealth v. Austin, 444 Pa.Super. 601, 664 A.2d 597 (1995); Commonwealth v. Leatherbury, 390 Pa.Super. 558, 568 A.2d 1313, appeal denied, 525 Pa. 643, 581 A.2d 570 (1990); Commonwealth v. Zoller, 345 Pa.Super. 350, 498 A.2d 436 (1985). In addition, it has been determined that failure to raise the propriety of the certification or transfer proceedings in post-verdict motions does not result in waiver of the issue on direct appeal. Commonwealth v. Reed, 435 Pa.Super. 304, 645 A.2d 872 (1994) (en banc), appeal denied, 540 Pa. 630, 658 A.2d 794 (1995) ; Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d 207 (1985). However, the present case is factually distinguishable from the above cases. Here, the juvenile was tried and convicted in two separate proceedings. No post-trial motions were filed following either proceeding. Subsequently, the juvenile was sentenced, and no direct appeal was filed. The juvenile later filed a Post Conviction Relief Act petition, in which he raised only one issue; namely, that he had been denied his right of allocution at sentencing. His petition was granted, and he was resentenced. He has now filed a direct appeal, which challenges for the first time the certification procedures that took place prior to trial. My research has failed to disclose any case that has similar facts to those at bar. Accordingly, I am reluctant to conclude, without analysis and discussion, that the issue of certification has not been waived given the particular procedural posture of this appeal.

      . The sixteen separate counts of which appellant was convicted were the result of two separate criminal incidents. Two separate trials were held.

      . Subparagraph (v) of the robbery charge at juvenile complaint No. 92-010764-1285.


author: WIEAND, Judge:

text:
    675 A.2d 1287
    Daniel L. SPRANKLE, Calvin Moon, Joseph McCutcheon, June L. McCutcheon, Dale K. Furry, Shirley A. Furry, Benjamin R. Zoll, Sylvia Zoll, Bill Anderson, Vincent Deleo, Art Decampli, William Diehl, Thomas A. Hostler, Grace H. Gates, Margery C. Snellbaugh, Anna E. Hostler, Charles E. Hostler, Mary Hostler, Margaret I. Yaudes, Dorothy J. Garman, Robert G. Hostler, Donald Kimberling, Margaret M. Kelly, Thomas W. Kelly, C. Donald Fink, Joyce Fink, Frank Long, Jr., Sarah Jane Long, James H. Bigelow, Mary Bigelow, Maxine M. Searer, and Howard Searer v. Craig BURNS, Charles H. Sprankle, Wanda S. Christine, and David Christine Appeal of Craig BURNS.
    Superior Court of Pennsylvania.
    Submitted Oct. 2, 1995.
    Filed Jan. 17, 1996.
    Reargument Denied May 21, 1996.

      David M. Axinn, Hollidaysburg, for appellant.
    J. Kirk Kling, Altoona, for appellees.
    Before WIEAND, McEWEN and HESTER, JJ.
   WIEAND, Judge:

This is an appeal from an order which enjoined the defendant, Craig Burns, from blocking or otherwise impeding passage over a road lying across unenclosed woodland in Blair County. The trial court reasoned that defendant should be enjoined (1) because he had failed to prove that his ownership of the underlying surface extended to the full width of the road at all points; and (2) because the court intended to declare the road a public way, it was unnecessary to determine whether neighboring landowners had prescriptive rights in the roadway. Unfortunately, the trial court was wrong on both counts. Moreover, the court’s refusal to consider the prescriptive rights, of the plaintiffs, if any, prevented consideration of the Act of April 25, 1850, P.L. 569, § 21, as reenacted and amended by the Act of July 1, 1981, P.L. 198, § 1, 68 P.S. § 411. This statute prohibits the creation of a right of way by adverse user through unenclosed woodland.

On appeal from an adjudication in an equity matter, the scope of review of an appellate court is narrow and is limited to determining whether the findings of fact are supported by competent evidence, whether an error of law has been committed or whether there has been a manifest abuse of discretion. Velazquez v. Gupta, 443 Pa.Super. 18, 21, 660 A.2d 645, 647 (1995); Purdy v. Zaver, 398 Pa.Super. 190, 196, 580 A.2d 1127, 1130 (1990). However, “conclusions of law or fact, being derived from nothing more than the chancellor’s reasoning from underlying facts and not involving a determination of credibility of witnesses, are reviewable.” Krosnar v. Schmidt Krosnar McNaughton Garrett Co., 282 Pa.Super. 526, 534, 423 A.2d 370, 374 (1980). See also: Felmlee v. Lockett, 466 Pa. 1, 7, 351 A.2d 273, 276 (1976).

Daniel Sprankle and Calvin Moon initiated this action against Craig Burns, and others having an interest in the Burns tract which is situated at or near the beginning of a certain road, claiming that they had acquired the right to use the road by prescription and that the road was the only means of access to their property. The road is an old dirt road located in a predominantly wooded area of Brush Mountain in Blair County. Burns had blocked vehicle access to portions of the road and thereby had thwarted Sprankle and Moon’s attempts to use the roadway for timbering purposes. At the trial court’s request, Sprankle and Moon contacted additional landowners along both sides of the road and advised them of their action. Many of these landowners were joined as plaintiffs. The road runs in a southerly direction for three to four miles from Skelp Road before reaching a dead end.

“A party seeking to enjoin an invasion of his or her right in and to real property must demonstrate that he or she has a clear right to the property in question.” Cannon Bros. Inc. v. D’Agostino, 356 Pa.Super. 286, 291, 514 A.2d 614, 617 (1986). See also: McDonald v. Noga, 393 Pa. 309, 313, 141 A.2d 842, 844 (1958). “An easement or right-of-way by prescription arises by adverse, open, continuous, notorious, and uninterrupted use of the land for twenty-one years.” Matakitis v. Woodmansee, 446 Pa.Super. 433, 440, 667 A.2d 228, 231 (1995). See: Bodman v. Bodman, 456 Pa. 412, 414, 321 A.2d 910, 912 (1974); Shaffer v. Baylor’s Lake Assoc., 392 Pa. 493, 496, 141 A.2d 583, 585 (1958); Burkett v. Smyder, 369 Pa.Super. 519, 522, 535 A.2d 671, 673 (1988). “To meet [his or her] burden, the plaintiff must rely upon the strength of his or her own title or other legal right to the property, and not upon the weakness of the title or legal right asserted by the defendants.” Cannon Bros. Inc. v. D’Agostino, supra.

A review of the record in this case discloses an utter failure by the plaintiffs to show a prescriptive right to use the roadway. When the trial court found the existence of an easement over the right of way because defendant had failed to prove ownership of the roadway to its entire width, the trial court clearly erred. The burden was on the plaintiffs to demonstrate that they had a legally recognized right to use the roadway. This, as we have observed, they failed to do. They did not meet their burden by challenging the quality of the defendant’s ownership of the subsurface of the road.

The trial court “declared [the] roadway to be open as a public way;” and, therefore, did “not reach the question raised by the parties with respect to an easement by prescription.” This too was error. The record discloses no basis that would permit the court to declare a public right of way by taking private property.

In view of the trial court’s action, the court did not consider whether the plaintiffs had established an easement by prescription over the roadway. Therefore, the court heard insufficient evidence and failed to make findings of fact. Similarly, the court did not consider the Act of April 25,1850, P.L. 569, § 21, reenacted and amended by the Act of July 1, 1981, P.L. 198, § 1, 68 P.S. § 411. Under this statute, “ ‘a right by prescription to a road through unenclosed woodland cannot be obtained.’” Minteer v. Wolfe, 300 Pa.Super. 234, 242, 446 A.2d 316, 321 (1982), quoting Kurtz v. Hoke, 172 Pa. 165, 173, 33 A. 549, 550 (1896). This statute applies equally to alleged private and public prescriptive easements. See: Brake v. Crider, 107 Pa. 210 (1984). It is the character of the land itself which is determinative of the application of the Act of 1850. Humberston v. Humbert, 267 Pa.Super. 518, 521, 407 A.2d 31, 32 (1979). See also: Matakitis v. Woodmansee, 446 Pa.Super. 433, 667 A.2d 228 (1995).

Appellees attempt to overcome the statute by arguing that they are not mere “users,” as that word is used in the statute, rather they are “owners of uninclosed woodlands accessed by and abutting the subject road.” This position is untenable, however, given the clear wording of the statute. “The act of 1850 ... admits of but one meaning, viz. that a right by prescription to a road through unenclosed woodland cannot be obtained.” Minteer v. Wolfe, supra at 242, 446 A.2d at 320-321. See also: Trexler v. Lutz, 180 Pa.Super. 24, 27,118 A.2d 210, 211 (1955). This result is not unjust. The landowners along the road are not without a proper remedy. See, e.g.: Act of June 13, 1836, P.L. 551, § 11, Act of April 4, 1901, P.L. 65, § 1, Act of April 28, 1927, P.L. 485, § 1, 36 P.S. § 2731 et seq. (discussing the laying out, opening and repair of private roads). See also: Eminent Domain Code, Act of June 22, 1964, P.L. 84, § 101, 26 P.S. § 1-101 et seq.

Appellees asserted a prescriptive right to use a road through woodland. Since the road passes through unenclosed woodland, the Pennsylvania statute prohibits adverse user from establishing a prescriptive easement through such lands. Because the appellee-plaintiffs failed to establish á valid, prescriptive right to use the road, the order of the trial court must be reversed.

Reversed.

      . The parties are agreed that the plaintiffs do not have an express easement over the roadway and that the roadway is not a public road.

      . The statute provides:
      “No right of way shall be hereafter acquired by user, where such way passes through uninclosed woodland; but on clearing such woodland, the owner or owners thereof shall be at liberty to enclose the same, as if no such way had been used through the same before such clearing or enclosure.”


author: PER CURIAM: CAVANAUGH, Judge,

text:
    675 A.2d 1290
    INDIAN TRAILS PROPERTY OWNERS ASSOCIATION, INC. a/k/a Indian Rocks Property Owners Association v. Thomas J. GILL and Nancy A. Gill, His Wife, Daniel G. Pagella and Louisa G. Pagella, Frederick D. Ruziecki, Miguel A. Rivera and Hortensia Rivera, His Wife, George J. Poiani and Catherine Poiani, His Wife, John Palermo and Martha Palermo, His Wife, Kimberly A. Rosensweet, Valerie A. Rosensweet and Lawrence Rosensweet, Husband and Wife. Appeal of Thomas J. GILL and Nancy A. Gill, His Wife, Daniel G. Pagella and Louisa C. Pagella, Frederick D. Ruziecki, Miguel A. Rivera and Hortensia Rivera, His Wife, John Palermo and Maria Palermo, His Wife, Kimberly A. Rosensweet, Valerie A. Rosensweet, Lawrence Rosensweet, Husband and Wife.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1995.
    Filed May 13, 1996.

      Robert F. Bernathy, Hawley, for appellants.
    Ronald M. Bugaj, Honesdale, for Indian Trails, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   PER CURIAM:

Appeal quashed. Jurisdiction relinquished.

CAVANAUGH, Judge,

concurring.

I join the well-reasoned majority memorandum. I write separately in the form of a Concurring Opinion simply to point out that I feel this case was properly considered and decided by this panel even though jurisdiction is proper with the Commonwealth Court of Pennsylvania since there has been no objection to our assumption of jurisdiction. See Pa.R.AP. 741.

As pointed out by the majority, this case involves the affairs of Indian Rocks Property Owners Association, Inc., a nonprofit corporation. Proper jurisdiction of this appeal lies with the Commonwealth Court of Pennsylvania, 42 Pa.C.S. § 762(a)(5). I write to urge that any future appeals in this case, or other appeals involving the affairs of Indian Trails Property Owners Association, Inc., be pursued in the Commonwealth Court and to encourage that other similar appeals involving non-profit corporations be pursued in that court where rightful jurisdiction is vested.