author: SAYLOR, Judge. EAKIN, Judge,

text:
    678 A.2d 395
    COMMONWEALTH of Pennsylvania, Appellant, v. Brigitte L. KNOCHE, Appellee.
    Superior Court of Pennsylvania.
    Submitted March 20, 1996.
    Filed June 7, 1996.

      David P. Wingert, Assistant District Attorney, Lebanon, for Commonwealth, appellant.
    Kristen A. Lee, Lebanon, for appellee.
    Before POPOVICH, SAYLOR and EAKIN, JJ.

      . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

   SAYLOR, Judge.

This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Lebanon County which granted Appellee’s post-sentence motion and vacated the judgment of sentence. We affirm.

On May 27, 1994, at approximately 11:14 p.m., Officer Gary Garrison of the South Annville Township Police Department made a traffic stop of a vehicle which was driving erratically on Route 241. Upon stopping the vehicle, Officer Garrison noted that there were two occupants, the driver and a passenger, Brigitte Knoche, Appellee herein. Officer Garrison requested assistance from an additional officer and Officer Jeffrey Arnold responded to the call. Subsequently, the officers arrested the driver of the car for driving under the influence of alcohol. As part of their investigation, the officers noted that the inspection sticker on the car had been tampered with and the registration was fraudulent. As a result of the illegal registration and inspection sticker, Appellee was not permitted to drive the vehicle and Officer Arnold offered her a ride. After accepting the offer, Appellee walked toward the patrol car. At this point, Officer Arnold told Appellee that he would have to search her for weapons before she could enter the patrol car. Officer Arnold proceeded to pat down Appellee and found no weapons. He then asked to examine the contents of Appellee’s small purse, and subsequently discovered a marijuana pipe at the bottom of the purse. Thereafter, Appellee was arrested and charged with possession of drug paraphernalia.

Appellee filed a motion to suppress the evidence. Following a hearing, the motion was denied. At the conclusion of a bench trial, the trial court found Appellee guilty of possession of drug paraphernalia. Appellee filed a post-sentence motion contending that the trial court erred in denying her pre-trial motion to suppress the evidence. The trial court, after consideration, granted the motion, having concluded that thj search was illegal because the police did not have the authority to conduct a pat-down search and examine the contents of Appellee’s purse pursuant to Terry v. Ohio, and that Appellee had not consented to the warrantless search. Accordingly, the trial court entered an order vacating her sentence and dismissing the charge against her. This appeal by the Commonwealth followed.

On appeal, the Commonwealth seeks to justify the search of Appellee’s purse on two bases: first, that it was incident to the lawful arrest of the driver of the vehicle, and second, that it was a valid administrative inventory search. We find no merit to either contention.

In Commonwealth v. Shiflet, 543 Pa. 164, 670 A.2d 128 (1995), a Pennsylvania state trooper stopped a vehicle based upon a suspicion that the driver was operating under the influence of alcohol. The driver and two passengers were asked to exit the vehicle. The driver was arrested for driving under the influence and one passenger was arrested for disorderly conduct. The second passenger, Shiflet, was not arrested. The trooper offered Shiflet a ride to the police barracks because she did not have a valid driver’s license and therefore could not drive herself home. Upon acceptance of the offer, the trooper seized Ms. Shiflet’s purse from underneath her arm and searched its contents. The trooper found three marijuana pipes and a small amount of marijuana in the purse. As a result, Shiflet was subsequently arrested and charged with possession of a controlled substance and possession with intent to use drug paraphernalia. Her motion to suppress the marijuana and drug paraphernalia was denied and she was found guilty of the offenses charged. On appeal, the Superior Court reversed, declining to extend the search incident to arrest exception to circumstances where the property being searched was in the possession of a person who had not been arrested.

The Supreme Court granted allocatur to consider whether the exception to the warrant requirement for a search incident to an arrest was applicable to justify a warrantless search and seizure of a defendant’s purse when the defendant vas not arrested and there was neither probable cause nor an articulable suspicion that she was involved in criminal activity. The Supreme Court held that the search incident to arrest exception clearly did not apply because the defendant had not been arrested and the search of her purse was too attenuated from the arrest of the driver and other passenger to properly be considered incident to the other arrests. In reaching this conclusion, the Supreme Court reasoned:

Here, Appellee was not subject to a formal arrest before her purse was seized, and she was standing outside of the vehicle with her purse when the search and seizure took place. The Commonwealth does not present any facts that would indicate that Appellee was subject to a custodial arrest, and it is conceded that the police had neither probable cause nor a reasonable suspicion that Appellee was engaged in any illegal activity.... It was only in connection with Trooper Taylor’s offer to drive Appellee home that the apparent need on the part of Trooper Taylor to search Appellee’s purse arose. Trooper Taylor did not indicate that he needed to search Appellee’s purse incident to the arrest of the driver and the other passenger, and had no reason to believe that Appellee was armed or was engaged in criminal conduct. Thus, the facts do not warrant an expansion of the search incident to arrest exception to this bystander.

Id., 543 Pa. at 169-171, 670 A.2d at 130-131.

In this case, as in Shiflet, Appellee was not under arrest and was standing outside of the vehicle when the officer seized and searched her purse. The police h."d neither probable cause nor reasonable suspicion to believe that Appellee was engaged in any criminal conduct. Officer Arnold did not indicate that he needed to search Appellee’s purse incident to the arrest of the driver and testified that he had no reason to believe that Appellee was armed or dangerous. Officer Arnold testified that the need to search Appellee only arose when Appellee accepted his offer to drive her to the police barracks. On the basis of these facts, the search of Appellee’s purse was clearly too attenuated from the arrest of the driver to be considered a search incident to such arrest.

Nor do we find merit to the Commonwealth’s argument that the search of Appellee’s purse was justified as an administrative inventory of her property. Although an administrative inventory search is a recognized exception to the warrant requirement, it is not applicable under the facts of this case. Inventory searches are properly conducted as part of the booking process after an individual has been placed under arrest. In Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1 (1992), cert. denied, 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993), the Pennsylvania Supreme Court outlined the parameters and purpose of an inventory search:

It is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station house incident to booking and jailing the suspect. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search.

Id., 532 Pa. at 91, 615 A.2d at 7, quoting Commonwealth v. Nace, 524 Pa. 323, 327, 571 A.2d 1389, 1392 (1990), cert. denied, 498 U.S. 966, 111 S.Ct. 426, 112 L.Ed.2d 411 (1990).

In this case, Appellee was not under arrest and was not undergoing booking at the time her purse was searched by Officer Arnold. Accordingly, the search of Appellee’s purse clearly was not part of a routine administrative procedure at a police station and thus could not be classified as an inventory search.

Since the search of Appellee was neither a lawful search incident to an arrest nor an inventory search, the trial court did not err in granting Appellee’s post-sentence motion.

Order affirmed.

EAKIN, J., files a concurring statement.

EAKIN, Judge,

concurring.

I agree that the search here was improper, but write separately to address the issue of consent; our decision should not be read to discourage officers from tendering assistance to persons in appellant’s predicament, nor to disparage the need to protect officers by precluding safety searches.

The officer legitimately offered the appellant a ride from the isolated location in which she found herself by virtue of her companion’s conduct; common sense and simple civility demanded no less. It was likewise legitimate for the officer to condition the ride on a search, for safety reasons or pursuant to policy. His error was that he did not advise the appellant of this condition; he merely searched after she accepted the ride.

The appellant agreed to accept a ride, but the record does not show she knew that agreement was conditioned on a search. Simply accepting a ride without knowing it will subject you to a search is not a consent to search. Had the officer told her of the precondition, she could have consented and been given a ride, or declined and found an alternative to the officer’s benefaction. Since she was not told of the precondition, she cannot have consented to it, and the search was invalid.

      . The Commonwealth also relies upon the case of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), arguing that the search of Appellee’s purse was incident to a lawful arrest because it was a search of the area within the control of the arrestee. The Pennsylvania Supreme Court was confronted with this same argument in Shiflet and found it meritless. The Supreme Court noted that pursuant to its decision in Commonwealth v. White, 543 Pa. 45, 669 A.2d 896 (1995), the Court had rejected the broad Belton rule which permitted the search of the entire passenger compartment of a vehicle and any containers therein incident to the lawful arrest of an occupant. Instead, the Supreme Court adhered to its decision in Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (1980), limiting the warrantless search of an automobile incident to an arrest to areas and clothing immediately accessible to the arrestee. The Supreme Court concluded that the facts in Shiflet did not fall within the ambit of the White standard so as to permit a search. Furthermore, the Court noted that Belton had not been extended to divest a third party of his or her legitimate expectation of privacy.


source: Caselaw Access Project

author: McEWEN, President Judge.

license: Public Domain

text:
    678 A.2d 398
    Stella and Frank PEMPKOWSKI, Appellees v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 13, 1996.
    Filed June 7, 1996.

      James T. Moughan, Plymouth Meeting, for appellant.
    Anthony J. Baratta, Jenkintown, for appellees.
    Before McEWEN, President Judge, and TAMILIA and BROSKY, JJ.
   McEWEN, President Judge.

This appeal has been taken by State Farm Mutual Automobile Insurance Company from the entry of summary judgment in favor of appellees, Stella and Frank Pempkowski, in this declaratory judgment action instituted by appellees to determine whether appellant, State Farm, was obligated to provide uninsured motorist benefits to Stella Pempkowski, a class-one insured under the policy issued to appellees, Stella and Frank Pempkowski, by State Farm, where appellees had already collected the limits of the liability coverage provided under the policy. We find that State Farm was not obligated by the policy of insurance it had issued to appellees to provide uninsured motorist benefits to appellees where the policy clearly provided that all sums paid under the liability coverage of the policy would be deducted from any sums payable under the uninsured motorist coverages. We, therefore, are constrained to reverse.

The parties submitted cross-motions for summary judgment seeking declaratory relief based upon the following stipulated facts:

On September 10,1992, Stella Pempkowski was a front-seat passenger in a vehicle driven by her husband Frank Pempkowski which was involved in an accident.
At the time of the accident, Mr. Pempkowski was [the] named insured on a policy issued by defendant, State Farm. That policy contained bodily injury limits of $25,000 per person and $50,000 per accident and uninsured motorist coverage of $15,000 per person and $30,000 per accident. Plaintiff filed a third party claim against her husband and State Farm tendered its [liability] limits of $25,000 to plaintiff.
Plaintiff then sought to recover uninsured motorist benefits under the same policy issued to her husband, claiming that the “phantom” motorist share[d] liability for the accident. Mr. Pempkowski’s insurance policy language contains a set-off provision which says that if bodily injury arises out of the use of an uninsured vehicle then any amount payable under the uninsured motorist coverage is to be reduced by the amount paid to an insured for bodily injury under the liability coverage of the policy.
The only issue is whether the set-off provision is enforceable where plaintiff is a “class-one” insured and her uninsured motorist claim is for liability of the second “phantom vehicle”.
If the court finds that the set-off provision is enforceable then plaintiff is not entitled to uninsured motorist benefits.
If the court finds the set-off is not enforceable, plaintiff may recover the policy limits of $15,000 without further proof of damages.

Our review of the decision of the trial court, which was based upon the above-recited stipulated facts, is plenary. Keselyak v. Reach All, Inc., 443 Pa.Super. 71, 74-75, 660 A.2d 1350, 1352 (1995). Accord: State Farm Mutual Auto. Insurance Co. v. Broughton, 423 Pa.Super. 519, 521-22, 621 A.2d 654, 655 (1993) (en banc). Accordingly, we are required to determine whether, as a matter of law, the trial court erred in concluding that the set-off provision in the State Farm policy is void as violative of the public policy of this Commonwealth.

The trial court found that, although the unambiguous set-off provision contained in the limitation of liability section of the insurance agreement precluded recovery by Stella Pempkowski of uninsured motorist benefits, the clause was unenforceable since it violated the public policy of this Commonwealth. The clause at issue provides:

Limits of Liability
1. If an uninsured motor vehicle causes the accident, the amount of coverage is shown on the declarations page under “Limits of Liability — U—Each Person, Each Accident”. Under “Each Person” is the amount of coverage for all damages due to bodily injury to one person. “Bodily injury to one person” includes all injury and damages to others resulting from this bodily injury. Under “Each Accident” is the total amount of coverage, subject to the amount shown under “Each Person”, for all damages due to bodily injury to two or more persons in the same accident.
5. If the bodily injury arises out of the ownership, maintenance or use of:
a. an uninsured motor vehicle, any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured:
(2) for bodily injury under the liability coverage.

It is well settled that, in interpreting a contract of insurance, Pennsylvania courts are required to give effect to clearly worded provisions manifesting the intent of the parties.

The task of interpreting a contract is generally performed by a court rather than by a jury. See Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979); Community College of Beaver County v. Society of the Faculty, 473 Pa. 576, 375 A.2d 1267 (1977). The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. See Mohn v. American Casualty Co. of Reading, 458 Pa. 576, 326 A.2d 346 (1974). Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. See Mohn v. American Casualty Co. of Reading, supra. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language. See Pennsylvania Manufacturers’ Ass’n Insurance Co. v. Aetna Casualty & Surety Insurance Co., 426 Pa. 453, 233 A.2d 548 (1967).

Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304-05, 469 A.2d 563, 566 (1983). As our esteemed colleague Judge Donald E. Wieand observed in Insurance Company of the State of Pennsylvania v. Hampton, 441 Pa.Super. 382, 657 A.2d 976 (1995):

When interpreting a contract of insurance it is necessary to consider the intent of the parties as manifested by the language of the instrument. St. Paul Mercury Ins. Co. v. Corbett, 428 Pa.Super. 54, 59, 630 A.2d 28, 30 (1993)(en banc), appeal discontinued, 535 Pa. 658, 634 A.2d 221 (1993) . Where the policy language is clear, the contract will be applied as written. Nationwide Mutual Ins. Co. v. Cummings, 438 Pa.Super. 586, 593, 652 A.2d 1338, 1341 (1994) . However, where a provision of a contract is ambiguous, it will be construed in favor of the insured. Britamco Underwriters, Inc. v. Weiner, 431 Pa.Super. 276, 281, 636 A.2d 649, 651 (1994), allocatur denied, [540] Pa. [575], 655 A.2d 508 (1994). To determine whether a contract of insurance provides coverage, the reasonable expectations of the insured must be examined. Frain v. Keystone Ins. Co., supra. An insured may not complain that his or her reasonable expectations were frustrated by policy provisions and limitations which are clear and unambiguous. Britamco Underwriters, Inc. v. Grzeskiewicz, supra [433 Pa.Super. 55] at 60, 639 A.2d [1208] at 1210. See also: Frain v. Keystone Ins. Co., supra [433 Pa.Super. 462] at 467, 640 A.2d [1352] at 1354.

Insurance Company of the State of Pennsylvania v. Hampton, supra at 385-86, 657 A.2d at 977-78.

The overall limitation of liability effectuated by the set-off provision in the instant policy reducing uninsured motorist benefits by any amounts paid under the liability coverage is clear and unambiguous. Accordingly, the set-off provision which operates to limit the amounts recoverable under the combined liability and uninsured motorist coverages must be enforced according to its express terms unless the clause violates the public policy of this Commonwealth as embodied in the provisions of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §§ 1701 et seq. (hereinafter MVFRL). The eminent Supreme Court Justice John P. Flaherty recently reiterated the standard which must be met before a provision of an insurance agreement may be declared by a court to be void as contrary to public policy:

Public policy is more concrete than a general desideratum which presumably supports the legislation in question and thus forms part of the legislature’s intention. Public policy is more than a vague goal which may be used to circumvent the plain meaning of a statute. Both the United States Supreme Court and this court have been unequivocal in this regard.
It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring. There must be a positive, well-defined, universal public sentiment, deeply integrated in the customs and beliefs of the people and in their conviction of what is just and right and in the interests of the public weal____ Only in the clearest cases, therefore, may a court make an alleged public policy the basis of judicial decision.

Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409 (1941). It would be easy to state a public policy in the forbidden sense of “general considerations of supposed public interest,” to elevate it to the status of unstated statutory language, thence to hold that an agency interpretation or insurance contract provision which is perfectly consistent with the plain words of the statute nonetheless violates the judicially perceived public policy and is therefore unenforceable. Although uninsured motorist coverage serves the purpose of protecting innocent victims from irresponsible uninsured motorists, that purpose does not rise to the level of a public policy overriding every other consideration of statutory construction.

Hall v. Amica Mutual Insurance Co., 538 Pa. 337, 346-50, 648 A.2d 755, 760-61 (1994). Accord: Paylor v. Hartford Insurance Co., 536 Pa. 583, 585, 640 A.2d 1234, 1235 (1994).

The Superior Court sitting en banc in State Farm Mutual Auto. Insurance Co. v. Broughton, 423 Pa.Super. 519, 621 A.2d 654 (1993)(en banc), found that there is no public policy violation where a policy of insurance issued pursuant to the MVFRL provides “for an insurer to reduce, dollar for dollar, the uninsured motorist coverage payments made to a guest passenger with liability coverage payments made under the same policy to the same guest passenger [where] both the host driver and another uninsured driver are jointly liable for the injuries suffered by the passenger.” State Farm v. Broughton, supra at 520, 621 A.2d at 654.

The Superior Court also held, in Jeffrey v. Erie Insurance Exchange, 423 Pa.Super. 483, 621 A.2d 635 (1993)(en banc), allo. denied, 537 Pa. 651, 644 A.2d 736 (1994), that it was not “against the public policy of this Commonwealth for an insurer to reduce, dollar for dollar, the uninsured motorist coverage payments made to a guest passenger with liability coverage payments made under [the] same policy to the same guest passenger [where] both the host driver and another uninsured driver are jointly liable for the injuries suffered by the passenger.” Jeffrey v. Erie Insurance Exchange, supra at 486-88, 621 A.2d at 637. “Neither the UMCA[] or the MVFRL contains a provision which either directly or by implication precludes an insurer from reducing uninsured motorist benefits by the amounts recovered under the liability portion of the same policy.” Jeffrey v. Erie Insurance Exchange, supra at 494-95, 621 A.2d at 641.

Appellee, however, while acknowledging the holdings of this Court in Broughton and Jeffrey, contends that the instant case is not controlled by those decisions since (1) Mrs. Pempkowski, as a class-one insured, is deemed to have paid the premiums for the uninsured motorist coverage and the set-off effectively denies her the coverage for which she paid, and (2) the set-off provision is repugnant to the restorative goal of the MVFRL.

We are not persuaded that the status of appellee as a class-one insured is alone sufficient to render the reasoning of Broughton and Jeffrey inapplicable to the instant case. Our Supreme Court in Hart v. Nationwide Insurance Company, 541 Pa. 419, 663 A.2d 682 (1995), in a per curiam order citing Windrim v. Nationwide Insurance Company, 537 Pa. 129, 641 A.2d 1154 (1994), reversed the decision of this Court which had held that a policy provision which excluded uninsured motorist coverage for “[bjodily injury suffered while occupying a motor vehicle owned by you or a relative but not insured for Underinsured Motorists coverage under this policy; nor to bodily injury from being hit by any such motor vehicle,” was void as violative of public policy. The Supreme Court found the exclusion valid despite the fact that the injured plaintiff in Windrim was a class-one insured.

We are persuaded, moreover, that the intent of the legislature, as reflected by the Act 6 amendments to the MVFRL, which caused uninsured and underinsured motorist coverages to be optional, rather than mandatory, also militates against the public policy argument urged upon us by appellees.

A class-one passenger injured in a two-car collision may recover up to the limits of the applicable liability coverage under a policy such as the one at issue herein, based upon the negligence of the host driver. The injured passenger may also recover uninsured motorist benefits under the same policy where the applicable uninsured motorist coverage exceeds the amounts recovered under the liability coverage under that same policy. The set-off as applied in this case operates to preclude recovery of any uninsured motorist benefits by appellee only because the named insured purchased only $15,000 in uninsured motorist coverage. As we noted in Newkirk v. United Services Automobile Association, 388 Pa.Super. 54, 60, 564 A.2d 1263, 1266 (1989), allo. denied, 528 Pa. 624, 597 A.2d 1153 (1990) while appellees, as class-one insureds paid premiums for uninsured motorist coverage, “they paid only for that coverage which is provided for in the policy.... Thus, contrary to the [appellees’] contention, the [appellees] did not pay [their insurer] for the coverage which [they are] now seeking to recover.”

Thus, we are unable to conclude that the clause at issue violates the public policy of this Commonwealth where the policy of insurance, issued in conformity with the MVFRL, provides for a dollar-for-dollar reduction of the uninsured motorist coverage payments made to a class-one insured with the liability coverage payments made under the same policy to the same class-one insured where the driver of the vehicle and the driver of a phantom vehicle are jointly liable for the injuries suffered by the class-one insured passenger.

Similarly meritless is the contention of appellant that the set-off clause is repugnant to the restorative goal of the MVFRL.

The Jeffrey court specifically dispelled any misapprehension as to the “restorative goal” of the MVFRL and held that the aim of “maximum feasible restoration” underlying the No-Fault Act had not been carried over to the MVFRL. Jeffrey v. Erie Insurance Exchange, supra at 495 n. 5, 621 A.2d at 641 n. 5. While we have recognized that the MVFRL is a remedial statute which we are to liberally construe, such liberal construction does not warrant “as broad a judicial mandate to effectuate coverage as [did] the ‘maximum feasible restoration’ principle.... ” Jeffrey v. Erie Insurance Exchange, supra at 495 n. 5, 621 A.2d at 641 n. 5. The argument presently urged upon us by appellees was rejected by this Court in Frazier v. State Farm Mutual Automobile Insurance Co., 445 Pa.Super. 218, 665 A.2d 1 (1995):

In the case sub judice, it is clear that appellee did not fit the criteria required to be eligible for recovery of uninsured motorist benefits under the language of the policy. She cannot overcome that deficiency by reliance on the theory of “maximum feasible restoration” as that principle no longer exists in Pennsylvania jurisprudence. Therefore, the order granting her recovery of uninsured motorist benefits in reliance on the transcendent hegemony of that doctrine was error.

Frazier v. State Farm Mutual Automobile Insurance Co., supra at 222, 665 A.2d at 3 (footnote omitted). Accord: Nationwide Mutual Insurance Co. v. Cummings, 438 Pa.Super. 586, 593-95, 652 A.2d 1338, 1342 (1994), allo. denied, 540 Pa. 650, 659 A.2d 988 (1995).

Based upon the foregoing, we find that the trial court could not, based on public policy, disregard the unambiguous set-off provision contained in the policy of insurance issued to appellees by appellant. The judgment entered in favor of appellees must, therefore, be vacated and judgment entered in favor of appellant.

Judgment vacated. Case remanded for entry of judgment in favor of appellant. Jurisdiction relinquished.

      . Class-one insureds are (1) the named insured, (2) any designated insureds, and (3) spouses and relatives of either, while they are residents of the same household. Jeffrey v. Erie Insurance Exchange, 423 Pa.Super. 483, 499-501, 621 A.2d 635, 644 (1993) (en banc), allo. denied, 537 Pa. 651, 644 A.2d 736 (1994).

      . Act 6 contains a repealer provision which declares that “[a]ll other acts and amendments to acts are repealed insofar as they are inconsistent with this act.” Act of February 7, 1990, P.L. 11, No. 6, § 31(c). Accordingly, the UMCA has been repealed insofar as it requires uninsured motorist coverage in contravention of section 1731 of the MVFRL.

      . Similarly, in Insurance Company of the State of Pennsylvania v. Hampton, supra, this Court observed that:
      The Pennsylvania courts nave allowed uninsured and underinsured motorist coverage to be restricted in certain circumstances by the clear and express terms of a policy. In Windrim v. Nationwide Ins. Co., 537 Pa. 129, 641 A.2d 1154 (1994), the Supreme Court held that policy language which excluded coverage for an injury suffered by an insured while driving a vehicle not covered by the policy was a valid limitation of underinsured motorist benefits.
      In Steinbacher v. Page, supra, the plaintiff was injured when her vehicle was struck by a Pontiac Firebird operated by the son of the defendant. The plaintiff sued the defendant’s insurance carrier seeking first party benefits under a policy of insurance for which the defendant was the named insured. Although the defendant’s son was also an "insured” as defined in the MVFRL, the Superior Court held that there could be no liability on the policy because the Firebird was not a "covered auto” and because the policy clearly limited first party benefits to accidents involving covered autos. Id. [410 Pa.Super. 586] at 589, 600 A.2d [608] at 610.
      In St. Paul Mercury Ins. Co. v. Corbett, supra, the Superior Court applied a similar analysis in the context of uninsured and underinsured motorist benefits. In that case, the insured, who had purchased a policy of insurance for an antique Roadster, filed a claim for uninsured motorist benefits after he had been injured while traveling in a different vehicle. The Court held that the policy did not extend uninsured or underinsured motorist coverage to the insured unless he was injured while using the Roadster. The Court distinguished between a policy covering a personal use auto, in which uninsured and underinsured motorist coverage applied to the insured while using other than the insured vehicles, and a specialty or limited use policy, in which uninsured or underinsured motorist coverage applied only when the insured was operating a covered vehicle. Id. at 62, 630 A.2d at 32.
      Although the Court recognized that the MVFRL mandated uninsured and underinsured motorist coverage for all policies issued in the Commonwealth, it observed that such coverage could be limited to the "circumstances as provided in the clear language of the policy.” Id. at 59, 630 A.2d at 30. The Court held that the contract language in a policy covering a special use vehicle, which limited the availability of uninsured and underinsured motorist benefits to accidents involving the covered auto, was consistent with the policy behind the MVFRL. Id. at 63, 630 A.2d at 32.

        Insurance Company of the State of Pennsylvania v. Hampton, supra at 387-89, 657 A.2d at 979.

      . Since an insured may elect to purchase stacked uninsured motorist coverages in an amount equal to the liability coverage, in many instances insureds will have sufficient uninsured motorist coverages available that application of a set off clause such as the one at issue in the instant case will not result in the denial of all uninsured motorist benefits in circumstances such as presented here.

      . We note that the model insurance agreement promulgated by the Department of Insurance also contains a set-off provision:
      Conditions
      6. Limits of Liability
      (b) any amount payable under the terms of this endorsement because of bodily injury sustained in an accident by a person who is an insured under this coverage shall be reduced by[:]
      (1) all sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured automobile and (ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under the Bodily Injury Liability Coverage of the policy, and
      (2) the amount paid and the present value of all amounts payable on account of such bodily injury under any workmen's compensation law, disability benefits law or any similar law.
      (c) any payment made under this endorsement to or for any insured shall be applied in reduction of the amount of damages which he may be entitled to recover from any person insured under the Bodily Injury Liability Coverage of the policy.
      31 Pa. Code § 63.2. The interpretation of a statute, such as the MVFRL, by the administrative agency charged with its enforcement is entitled to consideration by the court. Terminato v. Pennsylvania National Insurance Co., 538 Pa. 60, 71-72, 645 A.2d 1287, 1293 (1994).


author: FORD ELLIOTT, Judge. TAMILIA, Judge,

text:
    678 A.2d 404
    Richard L. MYEROWITZ, M.D., Appellant, v. PATHOLOGY LABORATORY DIAGNOSTICS, INC., Carlos D. Bedetti, M.D., Nematollah Mirzabeigi, M.D., and Robert D. Tronzo, M.D.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1996.
    Filed June 10, 1996.

      John W. Jordan, IV, Pittsburgh, for appellant.
    Edward J. Kabala, Pittsburgh, for appellees.
    Before TAMILIA, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge.

Appellant comes before us challenging the trial court’s granting of appellees’ petition to stay appellant’s petition for a preliminary injunction. The trial court granted the stay because it found that the matters in dispute were subject to arbitration and the court believed that the Uniform Arbitration Act mandated the granting of a stay, citing 42 Pa.C.S.A. § 7304(d). We disagree and will remand.

The parties before us are a corporate medical facility and its four shareholder physicians. Pitted against each other are our appellant, the former president and member of the board of directors of the corporate entity, and the appellees, the three remaining shareholders, who are also members of the board of directors, as well as the corporation itself.

The record reveals that while the four physician shareholders were essentially equal partners in the corporation, in some respects appellant was apparently first among equals. The following articles contained in the corporate by-laws established appellant’s primacy:

4. The property and business of the corporation shall be managed by a Board of four (4) members, as shall be determined from time to time by the shareholders of the corporation.
Notwithstanding the foregoing, Richard L. Myerowitz, M.D., shall be a Director of the Corporation, until death or permanent disability, as defined in the Employment Contracts of the employee-shareholders of the Corporation, this directorship not to be subject to amendment, unless unanimously approved by the Board of Directors.
6. A majority vote of the Board of Directors shall be required to carry any matter; except that, if there is a deadlock with respect to a vote on the involuntary termination of any pathologist-employee of the Corporation, then Richard L. Myerowitz, M.D., shall cast an additional vote in order to resolve such deadlock. A provision containing language to this effect shall be included in the Employment Contract of each physician-employee of the Corporation.
11. The officers of the corporation, other than the President, who shall serve in accordance with the terms set forth below, shall be chosen by the Board of Directors for such terms and compensation as the Board of Directors may determine. Such officers shall consist of a President, such Vice Presidents as may be determined by the Board of Directors, and a Secretary-Treasurer. The President shall, at all times, be Richard L. Myerowitz, M.D., until death or permanent disability, as defined in the Employment Contracts of the employee-shareholders of the Corporation, this provision not to be subject to amendment, unless unanimously approved by the Board of Directors. The Board of Directors may, in the Board’s discretion, leave any of the foregoing offices unfilled to the extent permitted by law. Any two or more offices may be held by the same person. The Board of Directors may from time to time appoint such additional officers, agents, employees and independent contractors as the Board shall deem advisable and prescribe their duties, conditions of employment and compensation. Subject to the power of the Board of Directors, the President may employ from time to time such other agents, employees and independent contractors as the President may deem advisable and prescribe their duties, conditions of employment and compensation.

Articles 4, 6, and 11 of the By-laws of Pathology Laboratory Diagnostics, Inc. Thus, the by-laws established appellant as permanent director and president of appellee corporation. While he could be removed from either office by unanimous vote of the directors, obviously unanimity would require his vote also.

Appellee physicians apparently chafed under these circumstances, ultimately rebelling and seeking to establish a new equilibrium. They found the instrument of their independence within a loophole in a clause contained in the employment contracts signed by and between all four physicians and the corporation:

21. Termination. Employee’s employment hereunder shall be terminated under the following conditions:
(h) Involuntary Termination. Employee may be terminated by Employer, with or without cause, if such termination is approved by a majority of the Board of Directors of Employer. In the event of a deadlock with respect to such a vote by the Board, Richard L. Myerowitz, M.D. shall cast an additional tie-breaking vote which shall determine whether or not Employee’s employment shall be terminated.

Employment Contract of Richard L. Myerowitz, M.D., dated February 27, 1992, clause 21(h) at 13 and 16. Thus, the curious and somewhat paradoxical situation arises wherein the three appellee shareholders, by uniting, could terminate appellant from his employment by appellee corporation, even while they could not directly remove appellant from his offices as director and president.

On November 17, 1994, the three appellee shareholders acted by serving notice of termination of employment, as required by the employment contract, upon appellant. According to the letter of termination, the appellee shareholders also amended the corporate by-laws, apparently to delete those portions favorable to appellant. The letter further demanded that appellant surrender his shares of stock on the corporation pursuant to a Stock Transfer Restriction Agreement, which required such surrender upon termination. Finally, the letter of termination also offered appellant reemployment, albeit on a truly equal footing with the three appellee shareholders.

Appellant chose not to accept such employment. Rather, on November 23, 1994, appellant filed the instant suit in equity. Among the various reliefs eventually sought were injunctive relief prohibiting appellees from removing appellant from his offices as director and president of appellee corporation, from terminating appellant’s employment, and from making representations to third parties regarding appellant’s status. In the alternative, appellant sought the winding up and dissolution of the corporate appellee.

Ultimately, the injunctive relief requested by appellant was effectively denied by the staying of his petition by the court below pending arbitration. Both appellant’s Employment Contract and the Stock Transfer Restriction Agreement contained clauses requiring the submission of any dispute arising thereunder to arbitration by the American Arbitration Association. The trial court ruled that it was required to stay appellant’s petition for a preliminary injunction pursuant to the Uniform Arbitration Act:

(d) Stay of judicial proceedings. — An action or proceeding, allegedly involving an issue subject to arbitration, shall be stayed if a court order to proceed with arbitration has been made or an application for such an order has been made under this section. If the issue allegedly subject to arbitration is severable, the stay of the court action or proceeding may be made with respect to the severable issue only. If the application for an order to proceed with arbitration is made in such action or proceeding and is granted, the court order to proceed with arbitration shall include a stay of the action or proceeding.

42 Pa.C.S.A. § 7304(d).

The propriety of this ruling presents appellant’s only issue on appeal, wherein he poses the following question:

Should a petition for a preliminary injunction to preserve the status quo anti [sic] which is filed in an equity action prior to the filing by the adverse party of a petition to stay the action pending arbitration be denied without hearing and without other consideration of its merits upon granting of the petition for stay?

Appellant’s brief at 4.

Preliminarily, we must address a contention raised by appellees that the instant appeal is interlocutory in nature and must be quashed. We agree that, unless authorized as of right or by permission of court, the appeal of an interlocutory order must be quashed. See Continental Bank v. Andrew Building Company, 436 Pa.Super. 559, 648 A.2d 551 (1994). We note that an order compelling arbitration and staying court action is considered an unappealable, interlocutory order, because the parties are forced into, rather than put out of, court. See Maleski v. Mutual Fire, Marine and Inland Insurance Co., 534 Pa. 575, 633 A.2d 1143 (1993). Moreover, there is specific statutory authority enabling the appeal of an order denying an application to compel arbitration. See 42 Pa.C.S.A. § 7320(a)(1). What is uncertain, however, is the appealability of an order which neither compels nor denies arbitration, but merely stays court action pending arbitration. We have found such an order to be appealable where the ultimate effect puts the litigant out of court. See Canter’s Pharmacy, Inc. v. Elizabeth Associates, 396 Pa.Super. 505, 578 A.2d 1326 (1990). Today we determine whether the staying of injunctive relief pending arbitration is appealable.

We observe that the denial or refusal to enjoin is an interlocutory matter specifically authorized for appeal as of right by our Rules of Appellate Procedure. See Pa. R.A.P. 311(a)(4), 42 Pa.C.S.A. However, since the trial court neither denied nor refused the petition for an injunction, but rather only stayed it, the matter does not constitute the denial or refusal to enjoin that is appealable as of right. Nevertheless, we find that the matter is appealable under the rationale of Canter’s Pharmacy.

Because the nature of the harm sought to be avoided by an injunction is one that is immediate and irreparable, the ultimate effect of staying such a decision is tantamount to denying such relief. The appealability analysis is effectively a two-stage process; first, we ascertain whether the litigant has been put out of court as to the matter at issue, then we ascertain whether relief on that matter may still be obtained on appeal once all remaining matters are resolved. If the litigant has not been put out of court or if he or she may yet obtain relief once all matters are resolved, then the matter appealed is interlocutory and unappealable. However, by its very definition, immediate and irreparable harm cannot await resolution of matters still pending. A litigant so injured cannot obtain relief by appeal once all matters still pending are resolved. Thus, the staying of a petition for injunctive relief is effectively a denial of said petition for the purpose of appeal. As we stated in Canter’s Pharmacy:

Here, the order did not expressly direct or compel the parties to proceed to arbitration. Rather, the trial court stayed the proceedings pending arbitration. The effect of the instant order, however, is [that] ... no proceedings will take place in the court of common pleas until the arbitration process has concluded.
In any event, an order temporarily staying proceedings is generally not appealable. Reynolds Metals Company v. Berger, 423 Pa. 360, 362, 223 A.2d 855, 856-857 (1966). However, if the effect of the stay order is tantamount to a dismissal of the cause of action or amounts to a permanent denial of relief requested, the party aggrieved should undoubtedly be afforded the opportunity to appeal on the basis that such stay order is a final disposition of some, if not all, of the rights involved.

Canter’s Pharmacy at 507, n. 1, 578 A.2d at 1327, n. 1. We hold that the staying of a petition for injunctive relief pending arbitration is appealable as the effective equivalent of a final disposition. We now turn to the issue on appeal before us.

We find that our resolution of the issue presented is directly controlled by this court’s prior decision in Langston v. National Media Corporation, 420 Pa.Super. 611, 617 A.2d 354 (1992). Therein we held that the Uniform Arbitration Act, as codified at 42 Pa.C.S.A. § 7301 et seq., does not preclude the granting of equitable relief in the nature of a preliminary injunction in order to preserve the status quo ante between the parties pending the outcome of arbitration. Following an examination of relevant federal and state decisions, we were guided to the conclusion that the arbitration process is best served by allowing such relief, stating, “Indeed, ... arbitration would become a ‘hollow formality’ if parties were able to irretrievably alter the status quo pending the outcome of the underlying dispute.” Langston at 616, 617 A.2d at 356-57. We therefore found that a trial court could properly issue a preliminary injunction preserving the status quo ante provided that the prerequisites for such an injunction were present. Likewise, we so find instantly and will remand this matter to the trial court with directions that it is empowered to issue a preliminary injunction in this matter, providing that the trial court determines that the prerequisites for such relief are present and that such relief is appropriate. The trial court is not prohibited from issuing such relief by the Uniform Arbitration Act, as codified at 42 Pa.C.S.A. § 7301 et seq.

Accordingly, the order below, dated January 9, 1995 and entered January 13, 1995, is hereby vacated, and the matter is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

TAMILIA, J., files a dissenting statement.

TAMILIA, Judge,

dissenting:

I respectfully dissent. The majority misconstrues the effect of the claim for injunctive relief as to prevent irreparable harm. This is not the case as the arbitrators can make the appellant whole financially or in damages if his colleagues have not acted properly. Because of the arbitration clause, the trial court lacks jurisdiction and cannot usurp the function of the arbitration board to grant the relief requested to render the function of arbitration in this case meaningless.


author: CAVANAUGH, Judge:

text:
    678 A.2d 408
    COMMONWEALTH of Pennsylvania v. William HIGGINBOTTOM, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 1, 1996.
    Filed June 12, 1996.

      Erwin Miller, Philadelphia, for appellant.
    Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, KELLY and BROSKY, JJ.
   CAVANAUGH, Judge:

William Higginbottom was tried by jury and was found guilty of possession of a controlled substance with intent to deliver and criminal conspiracy. He was sentenced to serve a term of imprisonment for not less than eighteen (18) months nor more than thirty-six (36) months, to be followed by a three (3) year period of probation, and to pay a fine of $5,000. Thereafter, pursuant to a motion for post-sentence relief, Higginbottom’s sentence was modified in order to make him eligible to participate in a boot camp program. On direct appeal from the judgment of sentence, Higginbottom asserts that: (1) his trial should have been barred by principles of double jeopardy because he had been subjected to a prior civil forfeiture action arising out of the same drug transaction; (2) the trial court erred by permitting the Commonwealth to present improper expert testimony during rebuttal; (3) his trial counsel was ineffective for failing to call appellant as a rebuttal witness; and (4) the trial court erred by limiting defense arguments during closing argument. After careful review, we affirm the judgment of sentence.

The evidence which was presented at appellant’s trial has been summarized by the trial court in the following manner:

The record shows that on April 29, 1994, Police Officers Frank Green and John Keen were in plainclothes. At approximately 6:30 p.m., they established a surveillance post in an unmarked 1975 blue Buick in the 2500 block of Trenton Avenue, Philadelphia. Each officer had a set of binoculars. Officer Green was using his binoculars, and Officer Keen was slouched down trying to hide from view.

Officer Green testified that he observed three white males standing in front of a pizza shop on the corner of Trenton Avenue and Hazzard Street. Officer Green stated that at the time he observed the males, he was approximately seventy-five feet from them and that he had an unobstructed view across Trenton Avenue to their position.

Officer Green saw an unidentified white male approach co-defendant Richard Hamilton, engage him in a short conversation, and hand him what Officer Green believed to be U.S. currency. Hamilton put the money in his left front pocket and pointed to the defendant, William Higginbottom. The white male then approached defendant Higginbottom, who reached inside his shorts in the groin area and removed a brown paper bag. Higginbottom took a number of small bright yellow packets from the brown bag and handed them to the white male who then walked away from the scene.

Approximately five minutes later, a Pontiac Firebird stopped in the middle of the street in front of the pizza shop. Both defendants stepped off the sidewalk into the street and approached the driver’s window of the Firebird. Defendant Hamilton accepted what Officer Green believed to be U.S. currency from the driver of the vehicle, and defendant Higginbottom withdrew the brown paper bag from his pants and handed the driver a bright yellow packet from the bag.

Officer Green informed Officer Keen of what was happening, and Officer Keen relayed the information by radio to Sergeant William Britt, who was also in plainclothes, in an unmarked vehicle which was parked around the corner from the pizza shop.

Sergeant Britt radioed for uniformed back-up units to come to his location and when they arrived advised them and Officer Keen to move to the pizza shop.

Officer Keen drove his vehicle to the corner of Trenton Avenue and Hazzard Street. The only persons standing on the corner at that time were defendants Higginbottom and Hamilton. When Officer Green left the vehicle being driven by Officer Keen, defendant Hamilton ran north on Trenton Avenue. Officer Keen pursued him in the vehicle and stopped him. Defendant Higginbottom was placed under arrest by Officer Green and Sergeant Britt.

Following Officer Green’s directions, Sergeant Britt retrieved a brown paper bag (Exhibit C-2) from the defendant’s pants. Officer Green identified C-2 as the same bag the defendant had hidden in his pants. The bag contained forty yellow tinted packets which held a total of 5.44 grams of a cocaine-based substance. C-2, the bag, had a list of numbers with additions or subtractions, and the word “Birdie” was marked on it in blue ink. Defendant Higginbottom also had $252.00 in cash on his person.

William Higginbottom denied that he had engaged in the drug transactions as described by Officer Green. He testified that he had purchased forty nickel bags, i.e. bags which would sell for $5.00, for $160.00 earlier in the day. He claimed that he had received a discount for purchasing in quantity. Defendant Higginbottom testified that he initially went to the corner of 4th and Berks Streets, at which location he had purchased drugs in January of 1994. The dealer he had patronized in January was not there so he went to Fourth Street and Cecil B. Moore Avenue to purchase the drugs. He stated that he purchased the drugs for his personal use, not for resale.

Defendant Higginbottom testified that on the day in question, he had borrowed his cousin’s car, drove to Fourth Street and Cecil B. Moore Avenue and purchased the forty bags. He returned the car to his cousin, who lived at Trenton and Hazzard Streets next door to the pizza shop, and was talking to Wayne Malcolm and Richard Hamilton, the co-defendant, when the police arrived in several cars and arrested all three of them. Wayne Malcolm was not charged and was subsequently released. Defendant Higginbottom also testified that the police did not find the brown bag until they strip-searched him at the police station.

Wayne C. Malcolm, the individual who was arrested at the same time as defendants Higginbottom and Hamilton testified that he was standing on the corner talking with the co-defendants when the police arrested them for no reason. He testified that the police recovered the brown paper bag from defendant Higginbottom when they strip-searched him at the police station.

Sergeant Lisa King was qualified as an expert in the area of use, abuse and distribution of cocaine. She was permitted to testify as a rebuttal witness notwithstanding the objection of counsel.

Sergeant King was asked to examine the brown bag with the writing, the packets containing cocaine and the seizure analysis. She testified that in her opinion each packet would have a street value of $10.00 and the total value of the 40 packets would be $400.00.

Sergeant King was asked, based on the evidence in the case, if she had an opinion as to whether the drugs which were found on defendant Higginbottom were for personal use or for sale. Sergeant King stated that it was her opinion that the drugs were held for sale and not personal use. She based her opinion on the street value of the drugs which she stated was $400.00, the quantity and packaging of the drugs and the fact that the brown bag had writing on it which was consistent with a person keeping a tally of sales made.

Trial Court Opinion at 2-6.

On May 12,1994, the Commonwealth filed a petition seeking the forfeiture of the $252.00 in United States currency that was seized from appellant at the time of his arrest. When appellant failed to oppose the forfeiture of the money seized, the Commonwealth’s petition was granted on August 4, 1994. Subsequently, appellant was brought to trial on the criminal charges that are the subject of the instant appeal. Upon being convicted and sentenced, appellant asserted in his post-sentence motions that his criminal trial should have been barred on double jeopardy grounds because of the prior civil forfeiture action. As such, appellant contends that the judgment of sentence should be reversed and he should be discharged. We disagree.

In the first place, appellant has waived any double jeopardy challenge by having failed to file a pre-trial motion to dismiss the criminal charges against him on grounds that he had previously been placed in jeopardy via the civil forfeiture action. “Usually, the issue of double jeopardy should be raised in pretrial motions.” Commonwealth v. Johnson, 319 Pa.Super. 463, 472, 466 A.2d 636, 641 (1983). The failure to file a pre-trial motion to dismiss a prosecution on grounds of double jeopardy, therefore, will result in the waiver of this argument on appeal. See: Commonwealth v. Gilman, 485 Pa. 145, 151, 401 A.2d 335, 338 (1979); Commonwealth v. Peters, 473 Pa. 72, 75, 373 A.2d 1055, 1057 (1977); Commonwealth v. Perillo, 426 Pa.Super. 1, 12 n. 6, 626 A.2d 163, 168 n. 6 (1993).

Moreover and in any event, appellant’s assertion that his criminal trial was held in violation of principles of double jeopardy is without substantive merit. It is appellant’s contention that the prior forfeiture of the $252.00 seized by police at the time of his arrest constituted a punishment for purposes of double jeopardy. Therefore, appellant argues, when he was sentenced upon his criminal conviction of drug offenses, he was subjected to multiple punishments for the same criminal conduct in violation of constitutional principles of double jeopardy.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution “prohibits the Commonwealth from punishing an accused twice for the same offense.” Commonwealth v. Owens, 437 Pa.Super. 64, 80, 649 A.2d 129, 137 (1994), citing Commonwealth v. Walker, 468 Pa. 323, 331, 362 A.2d 227, 231 (1976). See: North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 665 (1969). In United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), the United States Supreme Court considered the question of “whether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause.” Id. at 446, 109 S.Ct. at 1901, 104 L.Ed.2d at 500-501. The Halper Court concluded as follows:

In making this assessment, the labels “criminal” and “civil” are not of paramount importance. It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties. Ibid. The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law, and for the purposes of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeopardy Clause, we must follow the notion where it leads. Cf. Hicks v. Feiock, 485 U.S. 624, 631, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988) (“[T]he labels affixed either to the proceeding or to the relief imposed ... are not controlling and will not be allowed to defeat the applicable protections of federal constitutional law”). To that end, the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.
These goals are familiar. We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. See, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168, 83 S.Ct. 554, 567, 9 L.Ed.2d 644 (1963) (these are the “traditional aims of punishment”). Furthermore, “[r]etribution and deterrence are not legitimate non-punitive governmental objectives.” Bell v. Wolfish, 441 U.S. 520, 539, n. 20, 99 S.Ct. 1861, 1874, n. 20, 60 L.Ed.2d 447 (1979). From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. Cf. Mendoza-Martinez, 372 U.S., at 169, 83 S.Ct., at 568 (whether sanction appears excessive in relation to its nonpunitive purpose is relevant to determination whether sanction is civil or criminal). We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.

United States v. Halper, supra at 447-449, 109 S.Ct. at 1901-1902, 104 L.Ed.2d at 501-502 (footnote omitted). A civil penalty, moreover, becomes a punishment for double jeopardy purposes when it “bears no rational relation to the goal of compensating the Government for its loss----” Id. at 449, 109 S.Ct. at 1902, 104 L.Ed.2d at 502.

Subsequent to its decision in Halper, the Supreme Court held, in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), that forfeitures of conveyances and real property under the Controlled Substances Act, 21 U.S.C. §§ 881(a)(4) and (a)(7), constituted punishment and were, thus, subject to the Eighth Amendment’s Excessive Fines Clause. See also: United States v. Ursery, 59 F.3d 568 (6th Cir.1995), cert. granted, — U.S. —, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996) (forfeiture of real property constituted punishment for purposes of Double Jeopardy Clause). Similarly, in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), the Supreme Court held that a tax imposed upon illegal drugs, after the taxpayer had already been punished criminally and was no longer in possession of the contraband, constituted a second punishment in violation of the Double Jeopardy Clause. The Court reasoned that the high rate of the tax and its deterrent purpose, along with the fact that the tax was conditioned upon the commission of a crime and imposed after the destruction of the taxed goods, set it apart from other revenue raising measures and transformed the tax into a punishment for double jeopardy purposes. Id. at —, 114 S.Ct. at 1946-1948, 128 L.Ed.2d at 779-781.

At issue in the instant case, however, is the forfeiture of money which was directly derived from the sale of illegal drugs. With respect thereto, the United States Court of Appeals for the Fifth Circuit has declared:

The forfeiture of proceeds of illegal drug pales serves the wholly remedial purposes of reimbursing the government for the costs of detection, investigation, and prosecution of drug traffickers and reimbursing society for the costs of combatting the allure of illegal drugs, caring for the victims of the criminal trade when preventative efforts prove unsuccessful, most productivity, etc. See One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237, 93 S.Ct. 489, 493, 34 L.Ed.2d 438 (1972) (stating that forfeiture of property under the customs laws serves remedial purpose by “provid[ing] a reasonable form of liquidated damages for violation of the inspection provisions [by] ... reimbursing] the Government for investigation and enforcement expenses”); Halper, 490 U.S. at 444, 109 S.Ct. at 1900 (stating that costs of detection and investigation are remedial in nature); Rex Trailer Co. v. United States, 350 U.S. 148, 153-54, 76 S.Ct. 219, 222 & n. 6, 100 L.Ed. 149 (1956) (recognizing market and societal costs resulting from wrongdoing and avoidance of unjust enrichment as remedial purposes); Ward, 448 U.S. at 254,100 S.Ct. at 2644 (recognizing repayment of damages to society as remedial).
The Supreme Court’s recent opinion in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), does not affect our holding today. Austin, 509 U.S. at 604-606, 113 S.Ct. at 2803, dealt with whether forfeitures under §§ 881(a)(4) — conveyances, or means of transporting drugs such as automobiles — and (a)(7) — real estate used in drug transactions — constituted punishment under the Excessive Fines Clause. In distinguishing the civil forfeiture in One Lot Emerald Cut Stones, 409 U.S. at 237, 93 S.Ct. at 493 — a double jeopardy case in which a forfeiture was held not to constitute punishment — the Austin Court, 509 U.S. at 619-22, 113 S.Ct. at 2811-12, stated that the forfeitures of conveyances and real estate have no correlation to, or proportionality with, the costs incurred by the government and society because of the large and unpredictable variances in the values of real estate and conveyances in comparison to the harm inflicted upon government and society by the criminal act. Unlike the real estate forfeiture statute that can result in the confiscation of the most modest mobile home or the stateliest mansion, the forfeiture of drug proceeds will always be directly proportional to the amount of drugs sold. The more drugs sold, the more proceeds that will be forfeited. As we have held, these proceeds are roughly proportional to the harm inflicted upon government and society by the drug sale. Thus, the logic of Austin is inapplicable to § 881(a)(6) — the forfeiture of drug proceeds.

United States v. Tilley, 18 F.3d 295, 299-300 (5th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994).

In considering the same issue, the United States Court of Appeals for the Third Circuit concluded as follows:

In United States v. Tilley, 18 F.3d 295 (5th Cir.), cert. denied, — U.S. —, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994), the Fifth Circuit held that forfeiture of illegal drug proceeds under § 881(a)(6) is not “punishment.” Applying the test of Halper — whether the amount forfeited was so great that it bore “no rational relation to the costs incurred by government and society from the defendant’s criminal conduct,” id. at 298-99, and citing national statistics on revenues produced and costs imposed by illegal drug activities, the court held that the amounts confiscated in that case were not grossly disproportionate to governmental and societal costs. Id. at 299. The court distinguished A ustin, reasoning that the concerns about forfeitures of conveyances and real estate under §§ 881(a)(4) and (a)(7), i.e., that they could be wildly disproportionate to the costs imposed by the defendant’s illegal activities, were not applicable to forfeitures of proceeds under § 881(a)(6). “[T]he forfeiture of drug proceeds will always be directly proportional to the amount of drugs sold. The more drugs sold, the more proceeds that will be forfeited. As we have held, these proceeds are roughly proportional to the harm inflicted upon government and society by the drug sale.” Id. at 300.
Alternatively, the court held, even without the “rational relation” test of Halper, forfeiture of illegal drug proceeds is not “punishment” because of their very nature as illegally derived property. “When ... the property taken by the government was not derived from lawful activities, the forfeiting party loses nothing to which the law ever entitled him____ The possessor of proceeds from illegal drug sales never invested honest labor or other lawfully derived property to obtain the subsequently forfeited proceeds. Consequently, he has no reasonable expectation that the law will protect, condone, or even allow, his continued possession of such proceeds because they have their very genesis in illegal activity.” Tilley, 18 F.3d at 300.
We And the Fifth Circuit’s reasoning to be sound. We therefore hold that the forfeiture under 21 U.S.C. § 881(a)(6) of proceeds from illegal drug transactions, or proceeds traceable to such transactions, does not constitute “punishment” within the meaning of the Double Jeopardy Clause.

United States v. $184,505.01 In U.S. Currency, 72 F.3d 1160, 1168-1169 (3d Cir.1995). See also: United States v. Ogbuehi, 897 F.Supp. 887, 891-893 (ED.Pa.1995). But see: United States v. $405,089.28 In U.S. Currency, 33 F.3d 1210, 1218-1222 (9th Cir.1994), modified, 56 F.3d 41, cert. granted sub nom. U.S. v. Ursery, — U.S. —, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996). Cf. Austin v. United States, supra at 621, 113 S.Ct. at 2811, 125 L.Ed.2d at 504-505 (Recognizing “that the forfeiture of contraband itself may be characterized as remedial [rather than punitive] because it removes dangerous or illegal items from society.”).

Accordingly, upon careful review of the pertinent case law, we are persuaded that the forfeiture of proceeds that are directly traceable to the sale of illegal drugs is a remedial measure and does not constitute a punishment for purposes of double jeopardy. Our holding in this regard is fully consistent with the remedial purposes of Pennsylvania’s Forfeiture Act, 42 Pa.C.S. § 6801 et seq., “of depriving the defendant of the means to commit additional offenses and [ ] helping] the state defray the costs of investigation and prosecution.” Commonwealth v. Wingait Farms, 659 A.2d 584, 591 (Pa.Cmwlth.1995), alloc. granted, 542 Pa. 676, 668 A.2d 1137 (1995). Therefore, because the forfeiture of the $252.00 that appellant derived from the illegal sale of drugs was remedial, and not punitive in nature, the prior forfeiture proceeding did not bar appellant’s subsequent criminal prosecution for offenses arising from the same drug transaction. The judgment of sentence imposed following appellant’s criminal conviction was a first, not a second, imposition of punishment, and, as such, was not violative of the Double Jeopardy Clause.

Other issues are raised in this appeal which are treated in a memorandum filed in conjunction with this opinion. Since we find no merit to any of the appellant’s issues, we affirm the judgment of sentence.

      . Higginbottom was tried jointly with co-defendant Richard Hamilton, who was convicted of the same offenses.


author: DEL SOLE, Judge.

text:
    678 A.2d 414
    Robert G. LYNCH, Wilbert E. Mader and Douglas J. Ravas, Appellees, v. BRIDGES & COMPANY, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1996.
    Filed June 26, 1996.

      David M. Priselac, Turtle Creek, for appellant.
    Todd T. Zwikl, Coraopolis, for Douglas J. Ravas, appellee.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   DEL SOLE, Judge.

Appellees are employees of a subcontractor who was hired to perform work at a construction site in Maryland. The employees worked weekdays, and on weekends returned home to Pittsburgh, leaving the tools they personally owned in a locked “job box” at the Maryland site. Following a dispute between Appellees’ employer/subcontractor and the contractor, Appellant, the subcontractor instructed the Appellees not to return to the job site on Monday morning. Subsequently, Appellant refused Appellees’ repeated requests to return the job box. When the box was eventually returned, the lock had been broken and 90% of the tools were missing.

Appellees instituted an action for the replacement value of their missing tools and the trial court entered a non-jury verdict for Appellees in the amount of $1,864.00. This appeal follows the entry of judgment.

Appellant raises two issues on appeal. First Appellant alleges that the court erred in awarding replacement value for the tools rather than market value at the time of loss. Second, Appellant questions whether Appellees presented sufficient evidence that a bailment existed by merely testifying that some of their tools were not returned by Appellant.

While the measure of damages for conversion is the market value of the converted property at the time and place of conversion, such a value is often unaseertainable. Bank of Landisburg v. Burruss, 362 Pa.Super. 317, 524 A.2d 896, 899 (1987) alloc. denied, 516 Pa. 625, 532 A.2d 436 (1987). It is also well-settled that mere uncertainty as to the amount of damages will not bar recovery where it is clear that the damages are the result of defendant’s conduct. Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897, 909-910 (1979). In addition, replacement cost as the measure of damages has been a long-established exception to the general rule as to market value of personal belongings:

What a thing will bring in the market at a given time is perhaps the measure of its value then; but it is not the only one. Many of the goods for which compensation is here asked were of such a character that their market value could not compensate for their loss, as, for instance, clothing and other personal belongings. It cannot be said that they had no value in the open market, since at public auction they would most likely have brought something, but manifestly the price they would have there commanded would not represent their value to the owner ... Where this is the case the just rule of damages is the actual value of the thing destroyed to him who owns it, taking into account its cost, the practicality and expense of replacing it, and such other consideration as in the particular case affect its value to the owner.

Lloyd v. Haugh & Keenan Storage & Transfer Co., 223 Pa. 148, 72 A. 516, 518 (1909).

In the instant case the evidence was that the tools were not new, and probably had little market value. Appellant asserts therefore, that the tools are not worth the amount of damages awarded by the trial court. We disagree. Because the tools were old and had little market value does not mean that the tools were valueless, and that damages cannot be recovered by Appellees. The trial judge, siting as fact finder has broad discretion to determine damages in conversion cases. “Indeed, it is the traditional function of the fact finder in conversion actions to estimate damages.” Penn Electric Supply Co., Inc. v. Billows Electric Supply Co., Inc., 364 Pa.Super. 544, 528 A.2d 643, 646 (1987). Furthermore, we held in Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983):

Though justice and public policy require that the wrongdoer bear the risk of uncertainty which his own wrong has created and which prevents the precise computation of damages, the fact-finder still may not render a verdict based on speculation or guesswork. Yet, the fact-finder may make a just and reasonable estimate of the damage based on relevant data, and in such circumstances may act on probable and inferential, as well as upon direct and positive, proof. Thus, the law does not demand that the estimation of damages be completely free of all elements of speculation.

Each Appellee was required as a condition of employment, to personally own various hand tools, such as hammers, screwdrivers and ratchets. Because neither the contractor nor the subcontractor supplied tools to the employees, Appellees would be unable to work without possessing these tools. Appellees admitted at trial that most of the tools at issue were not new, and would have little or no market value. In Pikunse v. Kopchinski, 429 Pa.Super. 46, 631 A.2d 1049 (1993), we addressed the same argument raised by Appellant herein. In Pikunse, although the landlord who discarded the tenant’s property claimed that the articles were old and not worth the damages awarded by the trial court, we disagreed. We held that recovery was not precluded merely because the damages awarded to appellee for her loss were estimated by the trial court. Id., 631 A.2d at 1051. Similarly, in the instant case we agree with the Honorable Lee Mazur that Appellees have suffered an actual loss, and the true measure of damages is the cost of replacing the missing tools. In circumstances where there exists no “market” for the goods lost, it is permissible to measure damages by replacement costs.

In the second issue raised on appeal, Appellant alleges that there was no evidence at trial that it failed to take the required measures to protect the tools from loss or harm. In addition, Appellant argues that it is not a bailee. It is well settled that an appellate court will not consider on appeal issues not raised in the trial court. Appellant’s arguments were never raised at trial or in post trial motions and are therefore waived. Even if we were to consider the arguments on the merits, we would find them to be meritless. The evidence adduced at trial reveals that the tools were left at Appellant’s job site. Appellant admitted to having a locksmith pry the locks open on the job box and removing the gang box from the site. Appellant’s witness also admitted that the box was full when he first encountered it and empty when Appellees remaining tools were returned to them. Therefore, we cannot agree with Appellant’s contentions.

Judgment affirmed.


author: POPOVICH, Judge.

text:
    678 A.2d 416
    Jay REDMAN, Appellee v. Starlet RADOVICH, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 2, 1996.
    Filed June 25, 1996.

      Benita J. Sumey, Assistant Public Defender, Uniontown, for appellant.
    Samuel J. Davis, Uniontown, for appellee.
    Before POPOVICH, EAKIN and HESTER, JJ.
   POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Fayette County entered on November 2, 1995, which directed the parties to submit to DNA blood testing in order to determine whether appellee is the father of appellant’s minor daughter. We affirm the order directing the parties to submit to blood testing. Further, we find that appellant’s appeal is wholly frivolous and sanctions against her are warranted. Upon remand, we direct the lower court to compute appellee’s reasonable counsel fees for defense of this appeal and award the same to appellee as authorized by Pa.R.A.P. 2744.

Herein, appellant contends: 1) The lower court did not have jurisdiction to direct appellant and the child to submit to blood testing; and 2) Pa.R.C.P. 1915.8(a) does not authorize the court to compel blood testing. Although appellant claims to raise two distinct issues, she actually addresses both issues in one argument which in no manner assails the jurisdiction of the Court of Common Pleas to adjudicate appellee’s complaint for custody. Appellant, without citation to any authority, simply argues that since Pa.R.C.P. 1915.8(a) does not specifically name “DNA blood testing” as a type of physical testing of a child or party in a custody action permitted under the rule, the lower court had no power to order such testing.

However, contrary to appellant’s assertion, the lower court is expressly granted the power to order blood tests by statute. The Uniform Act on Blood Tests to Determine Paternity, 23 Pa.C.S.A. § 5104, specifically provides:

(c) Authority for test. — In any matter subject to this section in which paternity, parentage or identity of a child is a relevant fact, the court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to the tests, the court may resolve the question of paternity, parentage or identity of a child against the party or enforce its order if the rights of others and the interests of justice so require.

Further, our Rules of Civil Procedure also anticipate that the lower court would have the need to order physical examination of children or parties to a custody action. Pa.R.C.P. 1915.8, Physical and Mental Examination of Persons, in subsection (a), provides: “The court may order the child or a party to submit to an evaluation by an appropriate expert or experts.” The fact that “blood test” is not specifically listed as a type of permitted examination in no way lessens the court’s authority to order such testing when paternity is at issue, especially when we consider the express statutory grant of such authority.

In sum, we find that the issues raised herein are not only meritless but are, in fact, frivolous, given the court’s clear statutory authority to order blood testing of the parties and appellant’s child. Accordingly, we affirm. Further, upon appellee’s request, we remand the case to the lower court to determine damages to appellee as set forth in Pa.R.A.P. 2744, including reasonable counsel fees of appellee for this appeal.

Order affirmed. Case remanded for proceedings in accordance with this opinion. Jurisdiction relinquished.

      . We note that, although interlocutory, a court order directing the parties to submit to a blood test is immediately appealable. Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993).

      . Appellant’s third issue, “Whether the pre-trial praecipe was filed timely where there is no evidence that the appellant was notified of the thirty (30) days‘within which to file the same”, is moot since the court recognized that appellant was not properly served with the order of August 11, 1995, which initially directed the parties to arrange for blood testing and the court permitted appellant to respond to the blood test request.


author: SAYLOR, Judge.

text:
    678 A.2d 784
    COMMONWEALTH of Pennsylvania v. Frances Theresa DERBY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1996.
    Filed June 4, 1996.

      Robert D. Glessner, York, for appellant.
    Laura A. Pawloski, Assistant District Attorney, York, for Commonwealth, appellee.
    Before POPOVICH, SAYLOR and EAKIN, JJ.
   SAYLOR, Judge.

Where husband and wife have an equal right to occupy their home, does the wife have a duty to retreat from the home, if safe retreat be possible, rather than use deadly force against her husband, at whose hands she fears death or serious bodily injury? We conclude that she does not. Because the jury was incorrectly instructed on this point, we reverse the judgment of sentence imposed upon Appellant, Frances Derby, following her conviction of voluntary manslaughter in connection with the shooting death of her husband, Robert Derby (“Husband”), and remand for a new trial.

Husband was killed on November 1, 1993, following an altercation in the basement of the couple’s home. According to Appellant, Husband threatened to kill her and then went upstairs. Appellant thought she heard Husband enter his bedroom, where she knew he kept a gun. Although she could have left the house from the basement, Appellant decided not to do so because she wanted to get her car keys, which were upstairs in the kitchen, in order to drive to a friend’s house. Accordingly, Appellant picked up a loaded revolver which Husband kept in the basement and proceeded cautiously up the stairs, cocking the gun as she went. As she came around the kitchen door, she saw Husband sitting in a chair with his hand on or near a revolver. Appellant fired six shots, killing Husband.

At Appellant’s trial on homicide charges, defense counsel asked the Court of Common Pleas of York County to instruct the jury that Appellant had a duty to retreat from her home if, and only if, she had been the initial aggressor. The court rejected the request, instructing the jury instead that because Appellant and Husband had an equal right to be in their home, Appellant had a duty to retreat from the home if she knew that she could do so with complete safety. During its deliberations, the jury asked that it be furnished with a written copy of the court’s instruction on the elements of self-defense. Because written jury instructions are not permitted in Pennsylvania, the court repeated the instruction orally. The jury then found Appellant not guilty of first degree or third degree murder, but guilty of voluntary manslaughter. Appellant was sentenced to five to ten years imprisonment, post-sentence motions were filed and denied, and this appeal followed.

When presented with a claim that the trial court erred in charging the jury, we must determine whether the court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995). In making that determination, we may not look at the challenged portion of the jury charge out of context, but must instead consider the charge in its entirety. Id. We “will not grant a new trial on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental.” Id., 539 Pa. at 606, 654 A.2d at 540.

At common law a defendant who sought to prevail on a claim of self-defense was required to demonstrate, inter alia, that he or she had not violated a duty to avoid the danger at hand by retreating. Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970); Commonwealth v. Collazo, 407 Pa. 494, 180 A.2d 903 (1962); Commonwealth v. Johnson, 213 Pa. 432, 62 A. 1064 (1906). If a person was attacked in his or her home by an assailant who was not a member of the household, an exception to the general rule applied: the person attacked was not required to retreat even if retreat could be safely accomplished. Johnston, supra ; Commonwealth v. Fraser, 369 Pa. 273, 85 A.2d 126 (1952). If, however, the assailant was a fellow member of the household who had an equal right to be in the home, the general rule, not the exception, applied. Fraser, supra; Johnson, supra. In Johnson, the Supreme Court observed that

[t]he judge, ... in charging the jury, stated as an essential ingredient of justifiable killing in self-defense, that the [defendant] must have reasonably believed that he had no other means of escape from death or great bodily harm____The [defendant], it is true, had a right to be in the house where he was, but so had the deceased---Neither had any right to eject the other, and when the struggle between them took place the ordinary rules as to self-defense were alone applicable. Rights of a householder against a violent intruder have no relevancy [in such a situation].

Id., 213 Pa. at 433-34, 62 A. at 1064-65. In the present case, the trial court relied on Johnson in charging the jury as it did.

Since June 6, 1973, the effective date of the Crimes Code, claims of self-defense have been governed by section 505 of the Crimes Code, 18 Pa.C.S.A. § 505 (“Use of force in self-protection”). For the most part, section 505 codifies the common law of Pennsylvania with regard to self-defense. Commonwealth v. Walley, 466 Pa. 363, 353 A.2d 396 (1976); Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975). The Official Comment — 1972 to section 505 explains that

[t]his section is derived from Section 3.04 of the Model Penal Code,[] and makes no substantial change in existing law. The intent of this section is to codify existing case law pertaining to “self-defense” and to cover in a single rule the law governing the use of defensive force against both attack and in crime prevention.

With regard to self-defense when attacked in one’s home, subsection 505(b) provides as follows:

(2) The use of deadly force is not justifiable ... if:
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating ..., except that:
(A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be[.]

18 Pa.C.S.A. § 505(b)(2)(ii)(A).

The Official Comment’s expression of intent notwithstanding, it is immediately apparent that subsection 505(b)(2)(ii)(A), on its face, works a substantial change in the law of self-defense: no longer is a person obliged to retreat from his or her dwelling when assailed by a person who has an equal right to be there. This subsection is identical to the analogous provision of section 3.04 of the Model Penal Code, upon which section 505 was based. As explained by the American Law Institute, drafter of the Model Penal Code, in the Explanatory Note to section 3.04, the Institute considered

whether the right to stand one’s ground should be preserved when the attack is by a co-dweller or co-worker. The proposal originally submitted to the Institute did not extend the exception in either instance; a wife was thus compelled to retreat from an attack by her husband in their common home (if she knew she could do so with complete safety, of course), as was one partner from an attack by another partner at their place of work. The Institute voted [in 1958] to require retreat from attacks at one’s place of work in such a context, but not from attacks at one’s dwelling. The language of Subsection (2)(b)(ii)(A) [of section 3.04] states that position.

(Footnotes omitted; emphasis added.) Curiously, however, the summary of existing case law which is set forth in the Official Comment to subsection 505(b)(2)(ii)(A) of the Crimes Code includes the following:

A person is not required to retreat if he is attacked in his own home. Commonwealth v. Fraser, [supra ]. But where the deceased and the defendant both had a right to be in the home where the killing occurred, the ordinary rules as to self-defense are applicable. Commonwealth v. Johnson, [supra ].

The Supreme Court addressed the meaning of subsection 505(b)(2)(ii)(A) in Commonwealth v. Eberle, 474 Pa. 548, 379 A.2d 90 (1977). The appellant in Eberle was convicted of voluntary manslaughter after admitting that she had stabbed to death, in her apartment, a friend who sometimes lived there. On appeal, the appellant argued that the Commonwealth had failed to disprove her claim of self-defense. Noting that the offense had occurred in 1974, after the effective date of the Crimes Code, the Supreme Court observed that “[i]n light of [the] appellant’s claim we must examine section 505 of the Code which spells out the requirements for the defense of self-protection,” formerly called self-defense. Id., 474 Pa. at 552, 379 A.2d at 92. After quoting subsection 505(b)(2)(ii)(A), see supra, the Supreme Court stated that

[t]his portion of the statute represents a change from the prior law. Previously, one had no duty to retreat from one’s dwelling, even if retreat could have been effectuated with safety, unless the retreat was from a member of the same household who had an equal right to be in the dwelling. Commonwealth v. Wilkes, 414 Pa. 246, 199 A.2d 411[, cert. denied, 379 U.S. 939, 85 S.Ct. 344, 13 L.Ed.2d 349 (1964) ]; Commonwealth v. Fraser, [supra ]; Commonwealth v. Johnson, [supra]. In the above statute that standard is adopted for a place of work but not for a dwelling. The actor therefore is not required to retreat from his dwelling.

Id., 474 Pa. at 553-54, 379 A.2d at 93 (emphasis added). “In addition to the above law,” the court went on to say, “we must keep in mind [that] ‘... the burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-defense.’ ” Id., 474 Pa. at 554, 379 A.2d at 93, quoting Commonwealth v. Cropper, 463 Pa. at 537-38, 345 A.2d at 649.

Having set forth the principles of law governing its analysis, the Supreme Court then considered the evidence of record and concluded that the Commonwealth had failed to prove beyond a reasonable doubt that the appellant: 1) had not reasonably believed herself in danger of death or serious bodily injury, 2) had provoked the use of force, or 3) had been under a duty to retreat and could have retreated in complete safety. As for a duty to retreat, the court noted that “[this] requirement, as pointed out earlier, is not applicable if the [appellant] was in her dwelling,” Id., 474 Pa. at 556, 379 A.2d at 94, as in fact she was. Although the trial court had found that the apartment was the residence of both the appellant and the deceased, the Supreme Court determined that that finding was not supported by the record. “Under these circumstances,” the court reasoned, “the appellant, who was without a doubt within her dwelling, had no duty to retreat.” Id., 474 Pa. at 557, 379 A.2d at 95. The court added that even if such a duty had existed, the record did not establish beyond a reasonable doubt that the appellant could have retreated in complete safety. “Having failed to negate any of the elements of the defense of self-defense,” the court concluded, “the prosecution has failed to prove beyond a reasonable doubt that [the] appellant was guilty of criminal homicide.” Id., 474 Pa. at 558, 379 A.2d at 95. Accordingly, the court reversed the judgment of sentence and discharged the appellant.

The Commonwealth contends that the Supreme Court’s interpretation of subsection 505(b)(2)(ii)(A) “was not a part of the holding of Eberle ” and, implicitly, that it is therefore dictum and may be disregarded. We disagree. As the Superior Court observed in Manley v. Manley, 193 Pa.Super. 252, 164 A.2d 113 (1960), appeal denied,

[w]here a decision rests on two or more grounds, none can be relegated to the category of “obiter dictum.” Nor is a decision of the court on a certain point dictum, merely because something else was found in the end which disposed of the whole matter. The fact that the same result may be reached by either of two rulings of a court does not make either “dictum.”

Id., 193 Pa.Super. at 263 n. 3, 164 A.2d at 119 n. 3 (citations omitted). Accord Commonwealth ex rel. Fox v. Swing, 409 Pa. 241, 186 A.2d 24 (1962); Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830 (1986), appeal denied, 514 Pa. 643, 523 A.2d 1132 (1987); Mackey v. Adamski, 286 Pa.Super. 456, 429 A.2d 28 (1981); Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980). The Supreme Court’s ruling in Eberle that the appellant had violated no duty to retreat rested on several grounds. We are without authority to relegate any of those grounds to “the inferior status of obiter dictum.” Swing, 409 Pa. at 245, 186 A.2d at 26. Moreover, our analysis of Eberle is supported by the Supreme Court’s subsequent opinion in Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500 (1979), in which the court quoted its discussion of subsection 505(b)(2)(ii)(A) in Eberle without giving any indication that it considered that discussion to be dictum. See Swing, supra (noting that prior ruling, allegedly dictum, had for 29 years been followed and recognized as law by lower courts).

The Commonwealth suggests that “if a narrow reading of the Eberle holding is rejected, then the intent of Section 505 — as evidenced in the official comments to it — is undermined.” The responsibility for correcting any inconsistency between a statute and its comment does not lie with the Superior Court, however, but with the legislature. Accordingly, we conclude that the trial court’s instruction to the jury on the question of self-defense was erroneous.

Finally, the Commonwealth contends that the error, if any, was harmless. We disagree. The facts of the case, together with the jury’s request that the self-defense instruction be given to them in writing, suggests that the instruction was crucial to the jury’s verdict. Where there is a reasonable possibility that an error might have contributed to the conviction, the error is not harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). Accordingly, we reverse the judgment of sentence and remand for a new trial.

Judgment of sentence reversed. Case remanded. Jurisdiction relinquished.

      . In Johnston, the Supreme Court extended the no-retreat exception to include situations in which a person is attacked in his or her place of business.

      . Section 505 of the Crimes Code had no predecessor in the now-repealed Penal Code of 1939, 18 P.S. § 4101 ef seq. With regard to the Model Penal Code, see infra.

      . Both Eberle and Helm were decided by five members of the Supreme Court, with three justices in the majority and two dissenting (in Eberle) or concurring in the result (in Helm). Because each of the opinions was joined by a majority of the participating justices, the opinions constitute binding precedent. Commonwealth v. Mason, 456 Pa. 602, 322 A.2d 357 (1974).