author: BROSKY, Judge:

text:
    443 A.2d 280
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. UNITED FARM BUREAU MUTUAL INSURANCE COMPANY, a mutual insurance company, Loran Palmer, Brenda Palmer, Regina Palmer and Ryan Palmer, by their parents and natural guardians, Loran and Brenda Palmer, and Harrington & Schweers, P. A. Appeal of UNITED FARM BUREAU MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 18, 1981.
    Filed Sept. 4, 1981.
    Reargument Denied April 13, 1982.
    Petition for Allowance of Appeal Granted Nov. 5, 1982.

      David P. Helwig, Pittsburgh, for appellant.
    Richard S. Dorfzaun, Pittsburgh, for U. S. Fidelity, appellee.
    Dennis C. Harrington, Pittsburgh, for Palmer etc., appellees.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

This action stems from an automobile accident which occurred in Pennsylvania in which appellees, the Palmers, sustained injuries. Appellee, U. S. Fidelity and Guaranty Company, (hereinafter U. S. F. & G.) was assigned to administer claims filed by the Palmers pursuant to the assigned claims plan of the Pennsylvania No-Fault Motor Vehicle Insurance Act. U. S. F. & G. has refused payment to the Palmers because it claims that any benefits owed to them are owed by appellant and it has filed a petition for declaratory judgment seeking such a ruling. The case is before us on appeal from the denial of appellant’s preliminary objections to the petition. The issue for our determination is whether the lower court has personal jurisdiction over this nonresident insurance company. Appellant argues that there is no statutory basis for an assumption of jurisdiction and that such an assumption would violate the Due Process Clause of the Fourteenth Amendment. We disagree and affirm the order of the lower court.

The lower court based its finding of jurisdiction on the terms of 42 Pa.C.S. § 5322(a) (6) which provides:

(a) General rule.—A tribunal of the Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(6)(i) Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting. (ii) Being a person who controls, or who is a director, officer, employee or agent of a person who controls, an insurance company incorporated in this Commonwealth or an alien insurer domiciled in this Commonwealth.

An examination of the facts of this case shows that this statute does provide a basis for exercising jurisdiction over appellant.

Appellant, United Farm Bureau Mutual Insurance Company, hereinafter United Farm, is a mutual insurance company incorporated in the state of Indiana. It issued an insurance policy to Mr. Palmer, also an Indiana resident, which policy U. S. F. & G. claims is the source of United Farm’s liability. The policy contains the following clause:

This policy applies only to accidents, occurrences and loss during the policy period and while the automobile is within the United States of America, its territories or possessions, or Canada, or between ports thereof and is owned, maintained and used for the purposes as set out in the declarations or elsewhere in the policy . . . (Emphasis added.)

The contract itself outlines where the risks which it covers are located and says, in effect, that it covers the risk of accident in, among other places, Pennsylvania.

42 Pa.C.S. 5322(b) provides:

(b) Exercise of full constitutional power over nonresidents.—In addition to the provision of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contract with this Commonwealth allowed under the Constitution of the United States.

Referring to a predecessor statute after which the above quoted subsection is patterned, this court wrote, “the addition of the new section ... is clearly intended to liberalize Pennsylvania’s position.” Proctor & Schwartz, Inc. v. Cleveland Lumber Company, 228 Pa.Super. 12, 323 A.2d 11 (1974).

The subsection indicates that jurisdiction is conferred to the limits permitted by the United States Constitution. We turn next to the question of whether an exercise of jurisdiction in this case would violate the terms of the Due Process Clause of the Fourteenth Amendment.

The Due Process Clause limits the power of a state court to render a valid personal judgment against a nonresident defendant. World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). That clause has been interpreted as mandating that a state may exercise jurisdiction over an absent defendant only if the defendant has certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Company v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).

In Hanson v. Denckla, supra, the Supreme Court wrote: It is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum states, thus invoking the benefits and protections of its laws.

Supra at 253, 78 S.Ct. at 1240.

After discussing the Supreme Court’s opinions in Hanson v. Denckla, supra, and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) (finding minimum contacts in solicitation and sale of single insurance contract by foreign corporation), our court explained,

These decisions provide only a framework under the broad formula of “fair play and substantial justice” and a determination of whether or not the “minimum contacts” of a foreign corporation with a particular state are sufficient to make the corporation constitutionally amenable to process in that state must inevitably be made on an ad hoc case-by-case basis and not by the application of a mechanical rule.

Proctor & Schwartz, Inc. v. Cleveland Lumber Company, 228 Pa.Super. 12, 323 A.2d 11 (1974).

In Proctor & Schwartz, Inc. v. Cleveland Lumber Company, supra, we applied guidelines to aid in the determination of whether an exercise of jurisdiction is constitutionally permissible. Keeping in mind our opinion in Proctor that such decisions are to be made on an ad hoc basis and not by the application of a mechanical rule, we will apply the guidelines to the present appeal.

The guidelines are as follows:

First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws. Hanson v. Denckla, supra. Secondly, the cause of action must arise from defendant’s activities within the forum state. See Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374 (6th Cir. 1968); Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Supp. 550 (D.Conn.1968). Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. International Shoe Co. v. Washington, supra; see Southern Mach. Co. v. Mohasco Indus., Inc., supra; see also In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220 (6th Cir. 1972); Kourkene v. American BBR, Inc., 313 F.2d 769 (9th Cir. 1963).

Id., 228 Pa.Super. at 19, 323 A.2d at 15.

With respect to the first requirement, we explained that: When obligations entered into by a foreign corporation have a realistic economic impact on the commerce of this Commonwealth and where the defendant should reasonably have foreseen that the transaction would have consequences in this Commonwealth the defendant has purposefully availed itself of the privilege of acting within the Commonwealth.

Id., 228 Pa.Super. at 19, 20, 323 A.2d at 15.

When appellant agreed to insure losses incurred in all states, it assumed an obligation that has an economic impact on those states. As the trial court noted in its opinion, the Commonwealth of Pennsylvania has an interest in the administration of its no-fault insurance program since improper administration results in higher premiums, which are paid by Pennsylvania residents. Having agreed to insure losses incurred in all states, appellant cannot now be heard to claim that it was unforeseeable that its contract with Mr. Palmer would have consequences in Pennsylvania.

The second of the guidelines is also met here. The cause of action is based on the terms of the insurance contract which provides the connection between appellant and the Commonwealth.

Finally, and we believe most fundamentally, the last of the guidelines is satisfied. The exercise of jurisdiction over this appellant is reasonable. Appellant chose to insure drivers against losses, accidents and occurrences in states other than Indiana. Given this obligation, it is reasonable to require it to be involved in the administration of the claims made by its insured drivers in other states.

The recent Supreme Court decision in World-Wide Volkswagen Corporation v. Woodson, supra, guides us in our assessment of the reasonableness of an exercise of jurisdiction in this case.

World-Wide Volkswagen was a products liability action brought in Oklahoma against a New York automobile retailer and wholesale distributor to recover for personal injuries sustained in Oklahoma in an automobile purchased by plaintiffs in New York. The Supreme Court held that an exercise of in personam jurisdiction upon them would be unconstitutional since the New York corporations did not have the requisite minimum contacts with Oklahoma. The court explained that although it was foreseeable that a car sold in New York would be driven to other states, “the mere likelihood that a product will find its way into the forum state” is not a sufficient basis for the exercise of jurisdiction. Rather, the court said, critical to a due process analysis is “that the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.” Id. 444 U.S. at 297, 100 S.Ct. at 567.

The court explained further,

When a corporation “purposefully avails itself of the privilege of conducting activities within the forum State,” Hanson v. Denckla, supra, at 253, 78 S.Ct., at 1240, it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State.

Id. at 297, 100 S.Ct. at 567.

We find that by reason of the policy it issued to appellees, appellant had clear notice that it was subject to being involved in suits in Pennsylvania. The policy anticipates that the insured and the company will cooperate in litigation. As a driver, Mr. Palmer was subject to suit in any state into which he ventured. His insurer by agreeing to cover his losses incurred while operating his automobile and by requiring a cooperative effort in litigation was put on notice that it could be involved in litigation in Pennsylvania. The due process requirements have been satisfied in this case.

Order affirmed.

MONTEMURO, J., concurs in the result.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.108.

      . The appeal is pursuant to 42 Pa.C.S. 5105(c) which provides for appeal of certain interlocutory orders and Pa.R.A.P. 311(b)(2) which states that an appeal only be taken as of right ... if:
      2. the court states in the order that a substantial issue of jurisdiction is presented.

      . Act of July 9, 1976, P.L. 586, No. 142 § 2, as amended.

      . This “traveling” obligation is not the obligation of Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966). In Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980), the Supreme Court refused to apply a Seider v. Roth analysis to bring an individual defendant into the court of a state with which he had no contacts. Using a Seider v. Roth approach, he would have been subject to that state’s jurisdiction through the garnishment of his insurance policy, the terms of which Seider treated as giving rise to a debt owed to the insuree. Unlike Seider v. Roth, and Rush v. Savchuk, it is the insurance company that plaintiffs seek to bring into court in this case—not the insured. The “obligation” upon which jurisdiction is based, is the obligation of the company.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    443 A.2d 284
    AGSCO EQUIPMENT CORPORATION, Appellant, v. BOROUGH OF GREEN TREE. BOROUGH OF GREEN TREE, v. AGSCO EQUIPMENT CORPORATION and Anthony M. Lombardi, Appellants.
    Superior Court of Pennsylvania.
    Argued April 29, 1981.
    Filed Sept. 4, 1981.
    Reargument Denied April 13, 1982.
    Petition for Allowance of Appeal Denied June 16, 1982.

      James R. Fitzgerald, Pittsburgh, for appellants.
    Donald J. Lee, Pittsburgh, for appellee.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   PER CURIAM:

Appellant, Agsco Equipment Corporation, and appellee, Green Tree Borough, entered into a “Lease and Fill” Agreement which provided that Agsco would operate a landfill on property owned by the Borough. The contract stated that Agsco would operate the landfill for a period of three years and would pay the Borough rent in the amount of 35% of the gross income received by Agsco from the operation.

The Borough filed a complaint and petition seeking, inter alia, an accounting of all income from the landfill. In separate actions which have been consolidated in an equity proceeding, both parties sought damages for alleged breaches of the contract and the Borough sought compensation for damages to the site. The chancellor found that Agsco and its President, Anthony M. Lombardi, had breached the contract. Specifically, the court found that both the corporation and the individual appellant, Lombardi, had concealed and withheld public funds and that the corporation had not complied with the agreed upon procedures for the operation of the landfill.

The claims of Agsco and Lombardi were denied. The case is before us on appeal from an order denying appellant’s exceptions to the chancellor’s adjudication and decree. We affirm.

Appellants raise several issues of a factual nature with which we will deal briefly. Additionally, appellant Lombardi contests the admissibility of evidence of his conviction of mail fraud and the award of damages against him as an individual.

Our standard of review was explained in Frowen v. Blank, 266 Pa.Super. 145, 403 A.2d 585 (1979) where we wrote:

The standard of review by an appellate court in an equity case has been discussed many times. It has been held that the findings of the chancellor will not be reversed unless it appears that he has clearly abused his discretion or committed an error of law. Yuhas v. Schmidt, 434 Pa. 447, 258 A.2d 616 (1969). The chancellor’s findings have the full forcé of a jury verdict, and if supported by sufficient evidence, and if affirmed by the court en banc, will not be disturbed on appeal. Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975); Girard Trust Bank v. Sweeney, 426 Pa. 324, 231 A.2d 407 (1967); Philadelphia Fresh Food v. M. Levin & Co., 239 Pa.Super. 287, 288, 361 A.2d 886, 889 (1976).

Id., 266 Pa.Super. at 147, 403 A.2d at 586.

Appellant contends essentially that the chancellor’s findings that the written contract was not modified orally and that appellant-Lombardi was liable individually lack sufficient factual basis. We do not agree.

Appellants contend that the written contract was orally modified by the Borough Manager to' permit a deduction from the amount due the Borough from Agsco for expenses incurred by Agsco. The lower court found Mr. Lombardi’s testimony to be the only evidence of such a modification. Indeed, appellants point to no other support in the record for their allegation. The lower court, in a better position to judge the credibility of witnesses than are we, decided that Mr. Lombardi’s testimony was not credible. We find no abuse of discretion in its conclusion.

Appellant also argues that there is not sufficient evidence to support the imposition of damages on Mr. Lombardi individually.

The lower court found Agsco and Mr. Lombardi had withheld a report of the total receipts of the landfill operation in violation of the contract. The court found this deception to constitute fraud by both the company and its president. We agree and note that,

. . . [T]he appropriate occasion for disregarding the corporate existence occurs when the court must prevent fraud, illegality, or injustice, or when recognition of the corporate entity would defeat public policy or shield someone from liability for a crime.

Zubick v. Zubick & Sons, Inc., 384 F.2d 267, 272 (3rd Cir. 1967), cert. denied 390 U.S. 988, 88 S.Ct. 1183, 19 L.Ed.2d 1291 (1968).

Mr. Lombardi was convicted of mail fraud in the U.S. District Court for the Western District of Pennsylvania. As the lower court noted, when the District Court imposed sentence upon him, it specified that he should pay restitution as provided by the Court of Common Pleas, Allegheny County. The lower court’s imposition of individual liability, then, prevented Mr. Lombardi from avoiding liability for a crime.

Having concluded on the basis of the facts before it that Mr. Lombardi had individually defrauded the Borough, the lower court acted within its discretion in imposing damages upon him.

Related to the previously discussed question is appellants’ contention that evidence of Mr. Lombardi’s conviction for mail fraud should not have been admitted as evidence of fraud. The conviction stems from the same circumstances that gave rise to the instant civil proceeding—that is, the reporting of false information to the Borough.

In Hurtt v. Steroni, 416 Pa. 493, 498, 206 A.2d 624, 626 (1964), our Supreme Court wrote, “We are equally of the opinion that when one has been convicted of a felony, the result of which is of financial benefit to him, the record of his guilt should bar his avoidance of restitution therefor.” The court went on to find a prior conviction of extortion to be conclusive evidence of the fact of extortion in a civil case arising from the same circumstances. The court explained,

The defendant was presented with more than ample opportunity to overcome the charges lodged against him while he was swathed in a cloak of presumed innocence. His case was twice presented to a federal jury which found him guilty of extortion beyond a reasonable doubt, upon the same facts which are now urged as the basis for his civil liability. To now hold that the effect of those jury determinations is nil not only would be to fly in the face of reason, but also would be a general indictment of the whole American jury system. We are not now prepared to say that the mere technical effect of the doctrines of res judicata and collateral estoppel regarding identity of parties is sufficient to overcome the policy which requires us to give conclusive effect to the prior conviction herein. The defendant should not now be heard to deny that which was established by his prior criminal conviction, without proof that his conviction was procured by fraud, perjury or some manner of error now sufficient to upset the conviction itself. Defendant has had his day in court and has failed to instill even a reasonable doubt in the collective mind of his then jury.

The chancellor in the present case, then, properly admitted evidence of appellant Lombardi’s prior conviction.

Finally, appellant contends that it is entitled to damages for breach of the contract by the Borough.

We conclude from our reading of appellants’ brief and the lower court opinion that appellants’ central claim is that the contract called for the leasing by the Borough of certain property owned by the Keystone Oaks School District, as additional landfill property. No such lease was made. The lower court made no specific finding as to this claim, but did note that it believed any such claim to have been waived by appellants’ continued performance of the contract in the face of what they considered to have been a breach by the other party.

In Gray v. Maryland Credit Finance Corporation, 148 Pa.Super. 71, 25 A.2d 104 (1942), this court wrote,

The principle is general that whenever a contract not already fully performed on either side is continued in spite of a known excuse, the defense thereupon is lost and the injured party is himself liable if he subsequently fails to perform, unless the right to retain the excuse is not only asserted, but assented to.

Id., 148 Pa.Superior Ct. at 76, 25 A.2d at 106-107.

The chancellor found the following facts. Appellants entered into the written contract and began performance in June, 1972. Shortly thereafter, appellants received a report from an engineering firm that indicated that use of the School District property was contingent upon obtaining a lease to it. In late 1972 or early 1973, Agsco began to dump on the School District land. In September, 1973, Agsco asked the Borough to obtain a lease to the property. Inspections of the property by the Environmental Health Supervisor of the Division of Water Pollutants and Solid Waste Control of Allegheny County resulted in the finding of violations and shortly thereafter, Agsco ceased the operation of the site.

If appellants are correct in their allegation that the School District property should have been available to them, (the record indicates much controversy on that question) they certainly were aware of any breach by the Borough well before they ceased operations. As early as July, 1972, when they received the engineers’ report, appellants knew that some other step had to be taken before they could commence dumping operations on their property. Instead of seeing that a lease was secured, appellants dumped fill on the property giving rise to complaints from those nearby. Almost ten months after dumping fill on the School District property, during which time operation continued pursuant to the contract, appellants asked the Borough to secure a lease. Under these circumstances, we agree that appellants waived any claim that failure to secure a lease constituted a breach by the Borough.

Finding no abuse of discretion in the lower court’s findings, we affirm.

      . The initial requests of the parties for an injunction and an accounting are within the equitable jurisdiction of equity. The lower court opinion explains that no request was made by any party to sever the damage issues or to have a jury trial. If, as here, equity has jurisdiction of a case because of other remedies sought in the proceeding, there is nothing unusual or objectionable in the court making a decree for the payment of money which might have been recovered in an action at law. Comm. v. Smith, 344 Pa. 381, 25 A.2d 694 (1942).

      . Appellants raise as a separate issue the question of whether the Borough Manager had authority to make such a modification. Because we agree with the lower court’s finding that no such modification was entered into, we will not address this issue. Similarly, we will not address appellant’s issue number “V” as it is also based on the assumption that an oral modification occurred.

      . In that portion of their argument in which they claim a right to damages, appellants make no statement of what breaches they allege occurred. We gather from an earlier section of their brief that in addition to the above discussed question, appellants complain that they suffered damages because of the removal of an asphalt road from the landfill site. We make no judgment as to the merits of their claim but find that the lower court was justified in not granting damages to appellants. The testimony of the President of the Borough Council was that appellants made no request that the Borough “do anything about the road.” The chancellor was entitled to believe this testimony and find appellants to have waived any such claim.


author: SPAETH, Judge:

text:
    443 A.2d 288
    COMMONWEALTH of Pennsylvania, v. Stephen TANUR, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Oct. 16, 1981.
    Reargument Denied April 13, 1982.

      Paul R. Gettleman, Zelienople, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and POPOVICH, JJ.
   SPAETH, Judge:

This is an appeal from an order denying relief under the Post Conviction Hearing Act without a hearing. The issues are whether the guilty plea colloquy was defective, and if so, whether appellant should be granted a new trial. The plea was entered as the result of a plea bargain. We find that the colloquy was defective. Because the record does not reveal whether the plea bargain was favorable and whether appellant understood and was satisfied to accept it rather than go to trial, we remand for an evidentiary hearing.

Appellant was charged with twenty counts of theft by deception, twenty counts of passing bad checks, one count of criminal conspiracy, and one count of theft by receiving stolen property. On March 16,1977, he pleaded guilty to all counts except the one count of theft by receiving stolen goods, which was dismissed pursuant to a plea bargain. The lower court sentenced him to two concurrent five-year terms of probation and ordered him to pay the costs of prosecution. Appellant took no appeal from the judgment of sentence.

Appellant was subsequently found to be in violation of his probation and, on November 13,1978, was sentenced to serve a term of eleven and one-half to twenty-three months imprisonment. Sometime later appellant, filed a petition under the Post Conviction Hearing Act alleging that he had been denied his “constitutional right to representation by a competent lawyer,” that his guilty plea had been unlawfully induced, and that he “was not fully advised of all the rights [he] would be giving up if [he] pled guilty.” Oh November 8,1979, the lower court denied appellant’s petition, without a hearing, by an opinion and order that read in their entirety as follows:

AND NOW, to wit, this 8th day of November, 1979, it appearing to the Court that petitioner’s Application for Post Conviction Relief is deficient on its face, that the issues therein raised are without merit, have been waived, and are not supported by the record, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT petitioner’s Application for Post Conviction Relief is denied.

It is from this order that appellant appeals.

Appellant contends that the March 16, 1977, guilty plea colloquy was defective and that his former counsel was ineffective in failing to file a motion to withdraw the plea because of the defective colloquy. It is clear that the colloquy was defective, for appellant was not advised on the record of his right to a jury trial or his right to the presumption of innocence, as required by Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) and Pa.R.Crim.P. 319(a).

When a defective guilty plea colloquy is attacked on direct appeal, we must reverse the conviction and award a new trial; we do not remand for an evidentiary hearing because, the defect appearing on the face of the record, a hearing would be superfluous:

In Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976), this court stated:
“The Comments to Rule 319(a) of the Pennsylvania Rules of Criminal Procedure recommend that ‘at a minimum the judge ask questions to elicit the following information:’
“(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
“(2) Is there a factual basis for the plea?
“(3) Does the defendant understand that he has the right to trial by jury?
“(4) Does the defendant understand that he is presumed innocent until he is found guilty?
“(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
“(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?
“We reiterate here what was said in Ingram, [Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) ] 455 Pa. at 204-205, 316 A.2d at 81: ‘Adherence to [the guidelines set out in the Comments to Rule 319(a) ] will serve to protect the rights of defendants while simultaneously facilitating appellate review.’ Failure to satisfy these minimal requirements will result in reversal. Commonwealth v. Schork, 467 Pa. 248, 356 A.2d 355 (1976); Commonwealth v. Miner, 467 Pa. 230, 356 A.2d 346 (1976).” (Emphasis supplied.)
The above language makes clear that the above six questions are mandatory during a guilty plea colloquy and the failure to “satisfy these minimal requirements will result in reversal.”
Commonwealth v. Willis, 471 Pa. 50, 50-52, 369 A.2d 1189, 1189-90 (1977) (emphasis in original).

See also Commonwealth v. Reed, 488 Pa. 221, 412 A.2d 477 (1980); Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978); Commonwealth v. Tabb, 477 Pa. 115, 383 A.2d 849 (1978); Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978); Commonwealth v. Edwards, 269 Pa.Super. 556, 410 A.2d 841 (1979). The question here, however, is whether “failure to satisfy the [ ] minimal requirements” of Commonwealth v. Ingram, supra, and Rule 319(a) will also result in reversal when the defective colloquy is attacked not by petition to withdraw the plea and then on direct appeal, but rather collaterally, under the Post-Conviction Hearing Act, on a claim that prior counsel was ineffective in not attacking the defective colloquy.

Appellant argues that we should reverse and grant a new trial whenever the record discloses a defective guilty plea colloquy—that is, whether the defective colloquy is attacked on direct appeal or collaterally. As an original proposition, the argument has a certain appeal: since the defendant would have been permitted to withdraw his plea and go to trial if counsel had attacked the defective colloquy, either at the time of the plea or later by petition to withdraw and on direct appeal, why shouldn’t counsel be declared ineffective per se for failing to attack the colloquy? However, in Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979), the Court seems to have rejected such a per se rule. In that case the defendant, charged with first degree murder, pleaded guilty to third degree murder after the Commonwealth agreed to accept that plea and to nol pros a related charge of theft. Several months after his sentence, the defendant collaterally attacked the colloquy as defective. In dissent, two Justices said that the colloquy was defective, and that the defendant should be permitted to withdraw his plea. Justice NIX said:

The issue presented is not whether appellant was aware of his right to appeal or whether or not he was satisfied with his sentence. The majority does not question the fact that the colloquy was constitutionally infirm. It is also not disputed that counsel failed to advise appellant of this inadequacy during the period of time that an appeal could have been timely filed. Regardless of how advantageous a negotiated plea may be, the decision to enter it and to waive the right to appeal is a decision of the client and not counsel. Moreover, the decision to waive the right of appeal in this case could only be a knowing one if appellant had first been apprised of the constitutional deficiency in the colloquy and the legal effect of that deficiency. This did not occur and thus occasions my dissent.

Id., 486 Pa. at 478, 406 A.2d at 735.

Justice MANDERINO said that “the plea cannot have been said to be voluntarily, intelligently and knowingly made,” since it did not explain the elements of the crime of third degree murder, and that “[cjoünsel was ineffective for failing to so advise” the defendant. Id. The other five Justices, however, rejected this per se rule and held that counsel would not be found ineffective because the'record showed that the defendant had understood the plea bargain, had been satisfied with his sentence, and had chosen not to appeal.

Recently, we have filed two decisions consistent with Commonwealth v. Newell, supra. In Commonwealth v. Simpson, 290 Pa.Super. 11, 434 A.2d 103 (1981), the defendant pleaded guilty and received a sentence of probation, but later, when his probation was revoked and he was sentenced to prison, he collaterally attacked the guilty plea colloquy as defective. In fact the colloquy was defective. We nevertheless denied relief because at the PCHA hearing the defendant testified that even if counsel at the time of the plea had told him that the colloquy was defective, he would not have chosen to withdraw the plea and go to trial unless counsel had assured him that if convicted, he would still have received a sentence of probation. In Commonwealth v. Weiss, 289 Pa.Super. 9, 432 A.2d 1020 (1981), the facts were similar. There too the guilty plea colloquy was defective. We nevertheless held that counsel was not ineffective for failing to challenge it because counsel had negotiated a very favorable plea bargain, and a fair reading of the defendant’s testimony at the PCHA hearing was that he understood the plea bargain and was satisfied to accept it rather than go to trial.

In the present case, in which no hearing has been held, the record does not permit us to make the sort of determinations made in Newell, Simpson, and Weiss.

We shall therefore reverse and remand for an evidentiary hearing at which the lower court can determine whether the plea bargain was favorable and whether appellant understood and was satisfied to accept it rather than go to trial. If the court determines that the bargain was favorable, and that appellant understood and was satisfied to accept it rather than go to trial, the conclusion will follow that counsel’s failure to challenge the defective guilty plea colloquy had a reasonable basis designed to effectuate appellant’s interests, with the result that appellant’s petition should be denied. If, however, the court determines that the bargain was not favorable, and that had appellant understood that fact he would not have accepted it, then the conclusion will follow that counsel’s failure to challenge the defective guilty plea colloquy was a failure to give appellant effective representation, with the result that appellant’s petition should be granted.

The ORDER of the lower court is reversed and the case remanded for proceedings consistent with this opinion.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge, dissenting:

I must dissent. The majority remands the matter “[bjecause the record does not reveal whether the plea bargain was favorable and whether appellant understood and was satisfied to accept it rather than go to trial.” At 289. I cannot agree. The clear import of the majority’s decision is to demand a perfect record in every ineffectiveness case even though there is evidence that counsel’s actions had a reasonable basis.

First of all, this writer cannot agree that in the instant case because no post-conviction hearing was held, the record is inadequate. In fact, oddly enough Commonwealth v. Weiss, 289 Pa.Super. 9, 432 A.2d 1020 (1981), the case which the majority cites for support offers some insight into why the claim of ineffectiveness can be resolved without a remand. In Weiss, the guilty plea colloquy was defective, and counsel failed to object to the plea. This Court said that “[h]ad an objection been registered, the plea may have been invalidated and appellant could have faced much stiffer sentencing at trial.” Commonwealth v. Weiss, 289 Pa.Super. at 7, 432 A.2d at 1023 (emphasis added). So, too, in the instant case, this writer hardly can conceive of a clearer case where “had an objection been registered, the plea may have been invalidated and appellant could have faced much stiffer sentencing at trial.” Id. By concluding that enough is not known about the facts of the case before us, the majority is reading the record with a set of judicial blinders.

At the guilty plea hearing, representatives of the complainant, a banking institution, “recommended a term of probation to be determined by the court (N.T. 3/16/77 at 10) (Emphasis added). The other relevant portions of the colloquy are the following:

“THE COURT: And do you realize you could receive a maximum period of probation up to five years?
APPELLANT: Yes, I do.
THE COURT: And that the meaning of a probationary period of up to five years, if you were fortunate enough to receive that, that you could be sentenced to jail for that period if you violated the terms of the probation?
APPELLANT: Yes, I do, Your Honor.
THE COURT: And understanding that, do you still wish to enter a plea of guilty to each of these charges?
APPELLANT: Yes, I do.
THE COURT: Is there anything further to be presented here?
[DEFENSE COUNSEL]
MR. WEISS: I would like to make a statement before you pass sentence, Your Honor.
I think it is quite relevant here, first of all, at the time of these offenses Mr. Tanur—
THE COURT: Move your microphone over.
MR. WEISS: At the time of these offenses, Your Honor, Mr. Tanur did, and will admit to, having had a drug problem. That problem has since cleared up. He realizes what he did and he realizes he made a mistake, and he is willing to pay for that mistake. I think it is also relevant to note his father, during the whole process, has stood behind him and, as the gentlemen from the banks testified, has agreed to make restitution in the hope his son will pay him back, obviously, but he does have a family to go to.
I also believe he has a job to go to, and I believe these should all be taken into consideration when passing sentence, Your Honor.
THE COURT: All right. Is there anything else?
[THE PROSECUTION]
MR. GARGER: No, Your Honor, we have nothing further.
THE COURT: Now, the plea bargain in this case, it was the recommendation he would receive, in view of the fact restitution had been made in full, that he would receive a probation to be determined by the Court, of course, contemplating the court costs to be fixed by the Court, too.
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THE COURT: Is there anything you wish to say at this point?
THE DEFENDANT: Your Honor, when I did it, I was wrong. I just want to go back to work and live a constructive life.
THE COURT: All I want to say to you is: Your father, who sat quietly by, impresses me as a sort of a decent human being. You almost talked yourself into jail the other day on a probation violation. Do you remember that?
THE DEPENDANT: Yes, sir, I do.
THE COURT: Well, that is as close as you will ever come to it happening, because the next time if we have any problems with you, you are going.
On this Criminal Information at 7608818A, upon which the Defendant has this day entered a plea of guilty before this Court to twenty-three counts altogether, eleven counts of passing bad checks, eleven counts related and including theft by deception, and a 23rd count of criminal conspiracy on that Indictment, the sentence of the Court is that you pay the costs of prosecution on these cases, that you do so at the rate of $25 per month until the costs are paid, that you be placed on probation for a period of five years. A condition of that probation is that you will remain drug-free, that you will not violate the laws of this Commonwealth with any worthless checks such as you have engaged in here; and in the alternative, if you do violate the terms of your probation, then you will have to undergo incarceration for a period of not less than two and a half nor more than five years.
Do you understand that?
THE DEPENDANT: Yes, sir, I do.
THE COURT: You are getting a five-year probation. Now, I want you to know that we mean business. That is on that Indictment. On the other Indictment at 7608698A, the sentence of the Court is: On the nine counts of theft by deception and nine counts of bad checks, the sentence of the Court will run concurrent with the sentence imposed; that is, the costs of prosecution must be paid by you, and you will undergo a five-year probation.
Now, do you understand that?
THE DEFENDANT: Yes, sir, I do.
THE COURT: If you violate it, we are going to see you again, and if you do you are in trouble, so you had better straighten up, shape up or ship out, because that is the next trip. And if you come here again, don’t bring your
Dad along because he could be spared what will happen to you.
Now, you have a right to appeal judgment of the sentence of this Court to a higher court within a period of thirty days. If you are indigent and wish to take an appeal, the Court will appoint counsel free of charge to represent you in connection with any appeal you desire to take.
Do you understand you have that right?
THE DEFENDANT: Yes, sir, I do.”
(N.T. 3/16/77, at 10-11, 16-20) (emphasis added).

From the above excerpted portions of the colloquy and from the fact that appellant could have received a sentence of approximately forty-one years in prison and fined $96,000, trial counsel had a reasonable basis for not objecting to the defective colloquy. Cf. Commonwealth v. Johnson, 489 Pa. 129, 133 n. 4, 413 A.2d 1047, 1049, 1050 n. 4. (The Court may look to extrinsic facts). One need not be a legal scholar to determine that the trial court was a split second away from imposing a more severe sentence when he said “Well, that is as close as you will ever come to it [jail] happening, because the next time if we have any problems with you [the appellant], you are going.” (N.T. 3/16/77 at 18). I submit, that under these circumstances, defense counsel would have been ineffective had he interposed an objection during or after the court’s colloquy.

The situation which trial counsel faced in the instant case is similar to the one that was presented in Commonwealth v. Brightwell, 492 Pa. 424, 424 A.2d 1263 (1981). In Brightwell, the jury returned inconsistent verdicts of .murder of the third degree and voluntary manslaughter. Defense counsel, rather , than request that the jury reconsider its decision, did not object to the trial court’s determination that the verdict be recorded as guilty of murder of the third degree. Our Supreme Court decided that since “the trial court could have ordered thé jury to redeliberate on all possible counts of homicide [, although counsel could have asked that the jury be ordered to redeliberate on only murder of the third degree and voluntary manslaughter,” id., 492 Pa. at 427, 424 A.2d at 1265 (emphasis added), counsel had a reasonable basis for not objecting. That is, counsel “ ‘didn’t want to give the jury another opportunity to go out and come back with first degree murder.’ ” Id.

Similarly, in the case before us, had the guilty plea been vacated, the trial court would have had another “opportunity” to redeliberate and impose a stiffer sentence.

With respect to whether or not this Court should remand for an evidentiary hearing to establish if counsel’s actions were reasonable, we have said that:

“[s]uch a procedure is not necessary, however, if from the record it is apparent that the action claimed to constitute ineffectiveness was in fact within the realm of trial tactics or strategy.” Commonwealth v. Roberts, 263 Pa.Super. 237, 243, 397 A.2d 1187, 1190 (1978) allocatur denied April 16, 1979. (emphasis added).

This writer considers the failure by counsel to object to have been a decision which was borne “within the realm of trial tactics or strategy”. After the defective colloquy occurred, counsel’s client was “fortunate enough to receive” (N.T. 3/16/77 at 10) concurrent probationary periods of five years. By not moving to challenge the defective guilty colloquy, counsel exercised a trial strategy which had the effect of leaving his client’s “fortunate” sentence undisturbed. This writer cannot characterize such a trial strategy as ineffective because “the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest.” Commonwealth v. Musi, 486 Pa. 102, 107, 404 A.2d 378, 380 (1979) (citations omitted) (emphasis added). Indeed, from these facts, counsel probably was “happily” effective at the end of the hearing.

To reiterate, the record is replete with testimony from which this Court could infer that trial counsel’s strategy in not objecting had a reasonable basis, his client having received probation without the imposition of any fines, a much lighter sentence than the one appellant could have received. Cf. Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975) (where defense counsel’s conclusion that it was in the defendant’s best interests to plead guilty was reasonable under the circumstances). Because the majority remands unnecessarily for an evidentiary hearing for counsel to explain what is already evident on the face of this record, I must register my dissent.

      . 19 P.S. § 1180-1 et seq.

      . 18 Pa.C.S.A. § 3922.

      . 18 Pa.C.S.A. § 4105.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 3925.

      . According to the briefs for appellant and the Commonwealth, appellant’s petition was filed “sometime” in March 1979. The lower court record, however, indicates that it was filed on May 10, 1979.

      . We note that sometimes this court has awarded a new trial even though the guilty plea was entered into as a result of a plea bargain.
        See, e.g., Commonwealth v. Morris, 271 Pa.Super. 362, 413 A.2d 708 (1979); Commonwealth v. Manning, 263 Pa.Super. 430, 398 A.2d 212 (1979). However, those cases did not consider whether counsel might have had a reasonable basis for not objecting to the colloquy in that the defendant understood the bargain and preferred to accept it rather than go to trial.

      . These figures were reached according to the following guidelines: Passing bad checks is a summary offense where the amount involved does not exceed $200.00, 18 Pa.C.S.A. § 4105(c) (1973). The sentence for a summary offense should not be more than 90 days imprisonment, and any fines imposed should not be more than $300.00. 18 Pa.C.S.A. § 1105 (1973) and § 1101(6) (Supp.1980-81). In this case, the trial court properly noted that each of the twenty bad checks constituted a separate offense under the law. See 18 Pa.C.S.A. § 4105. Each check involved did not exceed $200.00. Therefore, appellant could have received a total sentence of approximately five years imprisonment and a maximum fine of $6,000.00 for the twenty counts of passing bad checks.
      With respect to the twenty theft by deception counts, a court could consider each of the theft charges separately. Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1 eff. June 6, 1973, 18 Pa.C.S.A. § 3903(a) (1973) and § 3903(b) (Supp.1980-81). Under this method, fourteen of the theft by deception charges would be misdemeanors of the second degree because the amounts of fourteen of the checks ranged from $50.00 to less than $200.00. 18 Pa.C.S.A. §§ 3903(b)(1) and (c)(2)(i) (Supp.1980-81). The possible sentence for a misdemeanor of the second degree is to be not more than two years imprisonment, and any fine should not be more than $5,000. 18 Pa.C.S.A. § 1104(2) (1973) and § 1101(4) (Supp.1980-81). The six remaining counts of theft by deception involve amounts less than $50.00 and would be classified as misdemeanors of the third degree. 18 Pa.C.S.A. § 3903(b)(2) and (c)(2)(i) (Supp.1980 -81). The possible sentence for a misdemeanor of the third degree is not more than one year imprisonment and not more than $2,500 in fines. 18 Pa.C.S.A. § 1104(3) (1973) and § 1101(3) (Supp.1980-81). For the twenty theft by deception counts, appellant could have received a 34 year imprisonment term, and fines could have totaled not more than $85,000.
      On the one count of criminal conspiracy of theft by deception and passing bad checks, appellant would have been sentenced on the same grade and degree as the most serious offense which was the object of the conspiracy. 18 Pa.C.S.A. § 905(a) (Supp.1980-81). In this case, the most serious offense would have been the theft by deception charge which was a misdemeanor of the second degree. 18 Pa.C.S.A. § 3903(a) (1973) and 3903(b) (Supp.1980-81). As mentioned above, the sentence for a misdemeanor of the second degree is no more than two years in prison, and any fine imposed cannot exceed $5,000.
      Of course, a court may aggregate the theft by deception counts if the court found that the “thefts [were] committed pursuant to one scheme or course of conduct, whether from the same person or several persons”. 18 Pa.C.S.A. § 3903(c)(3) (Supp.1980-81).
      Under the aggregate method, the possible sentence would have been less than the sentence calculated above. See 18 Pa.C.S.A. §§ 3903(a) (1973), 3903(b) (Supp.1980-81), 1101(3) (Supp.1980-81) and 1104(1) (1973).


author: SHERTZ, Judge:

text:
    443 A.2d 295
    COMMONWEALTH of Pennsylvania, Appellant, v. ONE ELECTRO-SPORT DRAW POKER MACHINE, SERIAL NO. 258.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1981.
    Filed Dec. 18, 1981.
    Reargument Denied April 13, 1982.
    Petition for Allowance of Appeal Denied July 1, 1982.

      Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

      Wayne V. DeLuca, Pittsburgh, for appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SHERTZ, Judge:

This is an appeal by the Commonwealth from the order of the Trial Court, entered on May 21, 1980, granting a Motion for Return of Property and to Prohibit Seizure. We affirm the order of the court below.

Harold 0. Allen is the owner and operator of an establishment known as “Allen’s Grill.” For the entertainment of his customers, Mr. Allen maintained on his premises an electronic coin operated device known as an Electro-Sport Draw Poker Machine. On March 11, 1980, a Pennsylvania State Trooper obtained a warrant for Mr. Allen’s arrest, charging him with a violation of 18 Pa.Con.Stat.Ann. § 5513 (Purdon 1973), which prohibits the maintaining, etc. of a device used for gambling purposes. Upon learning of the issuance of the warrant, Mr. Allen voluntarily appeared before the issuing authority. The machine was then seized by the State Police. On May 14, 1980, by order of court, the caption was amended from Commonwealth v. Harold O. Allen, to its present form, reflecting the fact that the sole purpose of the proceeding was to determine whether seizure of the machine was lawful. On Mr. Allen’s filing of a Motion for Return of Property and to Prohibit Seizure, an evidentiary hearing was held. Following the hearing, the court held that the machine was not a gambling device per se and granted Mr. Allen’s motion for return of the property. The Commonwealth appealed.

The Electro-Sport Draw Poker Machine is an electronic game which simulates five-card draw poker. The machine is operated by the insertion of one or more quarters. One quarter entitles the player to play one hand of poker. The deposit of more than one quarter does not affect the odds or chance of winning, but merely increases the number of free games, the sole “reward” provided by the machine, if the player has a winning hand. Fifty-two (52) “cards” in the computer program are electronically shuffled by the machine and then dealt. The cards received by a player appear on a viewing screen. As in poker, the player may “stand pat”, i.e. play the hand dealt, or draw cards by pushing a draw button and indicating which cards he wishes to discard. The cards are not reshuffled prior to the draw. The odds are precisely the same as those in an ordinary game of poker. Since the machine is “solid state,” the odds cannot be altered without replacing the integrated circuits that store the contents of the computer program for the Draw Poker Machine.

The sole issue raised on appeal is whether the court below erred in concluding that the Electro-Sport Draw Poker Machine is not a gambling device per se. A machine is a gambling device per se only if it can be used for no purpose other than gambling. Nu-Ken Novelty, Inc. v. Heller, 220 Pa.Super.Ct. 431, 288 A.2d 919 (1972). In order to apply this test, an analysis of the term “gambling” is necessary. “Gambling” is not defined in the Pennsylvania Crimes Code, but historically and traditionally, gambling has been held to include three elements—consideration, reward and a result determined by chance as opposed to, and exclusive of, skill. A device or machine, to be a gambling device “per se”, must meet all three criteria. See In re Gaming Devices Seized at American Legion Post No. 109, 197 Pa.Super.Ct. 10, 176 A.2d 115 (1961); In Re: Treasure Chest Amusement Device, 9 D&C 3d 295 (1978).

The Commonwealth, contending as it does that the Electro-Sport Draw Poker Machine satisfies the definition of gambling as stated above and is therefore, ipso facto, a gambling device per se, bears the burden of establishing the existence of each of these elements. However, because the proceeding is in rem, the Commonwealth need not prove each element beyond a reasonable doubt, but rather by a preponderance of the evidence. See Nu-Ken Novelty, Inc. v. Heller, 220 Pa.Super.Ct. at 433, 288 A.2d at 920; Commonwealth v. Landy, 240 Pa.Super.Ct. 458, 362 A.2d 999 (1976).

It is conceded that a player must insert a coin to activate the machine in question and hence the first element, consideration, is present. However, Mr. Allen contends that both of the other elements, a result dependent on chance alone, and reward, are absent. We agree.

In order to conclude that a machine is a gambling device per se, it is necessary to find that successful play is entirely a matter of chance as opposed to skill. See Nu-Ken Novelty, Inc. v. Heller, 220 Pa.Super.Ct. at 433, 288 A.2d at 920; In re Wigton, 151 Pa.Super.Ct. 337, 344, 30 A.2d 352, 356 (1943). Webster’s Third New International Dictionary defines chance as “something that happens unpredictable without discernable human intention or direction and in dissociation from any observable pattern, causal relation, natural necessity or providential dispensation.” This court, in In re Gaming Devices, supra, focused on the degree of chance required to find that a machine is a gambling device per se. There the testimony was clear that the machine was purely a game of chance in which neither the odds nor the outcome could be influenced by the skill, or lack thereof, of the player. In the instant case, however, the converse is true. The cards ultimately played, and the result produced thereby, are, at least in part, within the control of the player, control which, of course, is affected by the order in which the remaining “cards” are subsequently “dealt.”

A device or game does not involve gambling per se merely because an element of chance is involved in its play or because it may be the subject of a bet. Football, baseball and golf, as well as bridge, ping pong, billards or, for that matter, tiddledywinks, all involve an element of chance, yet the mere playing thereof is not gambling; betting on them is. See Commonwealth v. Mihalow, 142 Pa.Super.Ct. 433, 16 A.2d 656 (1940). Admittedly, someone might attempt to bet on the outcome of games played with the Electro-Sport Draw Poker Machine. This possibility, however, does not make the machine a gambling device per se.

In support of its argument that no skill is involved in the play of draw poker, the Commonwealth compares it to a slot machine where the object of the game, to match a variety of objects on a visual display, depends entirely on a random spin. We find the analogy to be inapplicable. Draw poker involves far more than a mere glance at the faces of cards, whether they appear on pieces of pasteboard, or on a viewing screen. Skill is exercised in choosing which cards to hold, in deciding which to discard, in considering whether to stand pat and in weighing the probabilities of drawing the desired card. It is disingenuous to compare the Draw Poker Machine to a game in which the player merely inserts a coin and waits for bells, bars, cherries, oranges, etc., to match up. In playing the Draw Poker Machine, there are a variety of “hands” which can be sought and a varying range of probabilities of obtaining them through a draw. A player faces similar odds to any game of draw poker; he has a measure of control over the outcome and he is similarly dependent upon his individual skill. To successfully play the Draw Poker Machine, as in regular poker, the player must be familiar with the relative value of the various combinations which may be held and must also know the odds against improving any given combination by drawing to it. See Foster's Complete Hoyle, supra at 169. An expert witness, testifying in Mr. Allen’s behalf, Mr. Kadane, Professor of Statistics at Carnegie Mellon University, found, after over a hundred plays, that it was possible to win four times as many games playing a “smart” strategy as opposed to a “dumb” strategy. Professor Kadane therefore concluded that success with Electro-Sport Draw Poker depends “a great deal” on the player’s skill.

The assertion by the Commonwealth that the “maximum score that a player can achieve is preordained upon the deal” is correct, but irrelevant; it is equally applicable to any game of cards. Once the cards are shuffled and cut, they are aligned so that the maximum hand is predetermined, unless someone engages in improper dealing, but the extent to which that hand is subsequently achieved is dependent upon the skill of each player as manifested by his subsequent play. In the Draw Poker Machine, in particular, the element of skill comes into operation when the player calculates the odds and determines whether to draw cards, and if so, how many.

The argument that a player may occasionally win against the law of probabilities does not mean that the game does not require considerable skill. A peculiar combination of luck and skill is the sine qua non of almost all games common to modern life. It is hard to imagine a competition or a contest which does not depend in part on serendipity. It cannot be disputed that football, baseball and golf require substantial skill, training and finesse, yet the result of each game turns in part upon luck or chance. Can it be disputed that chance plays a role in determining whether a punt, which hits on the ten yard line, rolls into the end zone, goes out of bounds at the one yard line or bounces backward toward the kicking team; whether a hard ground ball will take a hop into the shortstop’s glove or will ricochet over his head into the outfield; or whether an errant golf ball which strikes a tree will rebound into the rough or onto the fairway? Even so cerebral a card game as bridge involves an element of chance, as anyone who has ever attempted to “finesse” a king will most assuredly agree.

As we have already indicated, the game of poker requires substantial skill for successful play. The fact that the game is played here with a computer rather than a deck of cards is not meaningful. Here the cards are shuffled as in any game of poker. That the cards exist in a computer memory and are displayed on a screen is irrelevant, particularly in a day and age when electronic computers daily take the place of more familiar forms of objects. To claim that this game is different in substance from a card game of poker is to ignore contemporary reality.

Finally with respect to the issue of reward, we note that the only compensation for successful play of the Draw Poker Machine is free games, merely entitling the player to continue play without the further insertion of coins. Such compensation is insufficient to merit the reward requirement. In re Wigton, supra. In Wigton, the court considered the “free game” concept and held:

Bearing in mind that penal laws must be strictly construed, we are not persuaded that the legislature intended a definition of gambling broad enough to make unlawful gaming in which the player, in addition to the pleasure of playing, stands to gain nothing but the right to play again without paying for it and the loser to lose nothing but the compulsion to let him play.
We hold that the “free game” feature does not warrant the destruction of the machines as devices used for the purpose of unlawful gaming.

Id., 151 Pa.Super.Ct. at 342, 30 A.2d at 355.

In the instant case, the machine was equipped with a device that would vary the number of credits allocable to each coin. The machine also contained a “knock-off switch” and a meter to record the number of free games erased by the switch. The Commonwealth mistakenly relies on In re Gaming Devices, supra, for the proposition that such mechanisms are sufficient and competent circumstantial evidence of monetary reward. The machines there were multiple coin devices with concealed adjustment plugs allowing the owner to alter the odds unbeknownst to the unwitting player. Also the multi-coin aspect increased the odds. Id., 197 Pa.Super.Ct. at 10, 176 A.2d 120. These features are not present here. The odds, for all practical purposes, cannot be altered; the multi-coin aspect of the Draw Poker Machine does not affect the odds. The knockdown button on the Draw Poker Machine can be construed as an item that is business related, as opposed to evidence of gambling use. It may be used to clear machines at days end or when a player tires of playing. This serves an accounting function and can assure the owner he is not being cheated. In other words, this button insures that a player must pay to play.

Although the Commonwealth established that the element of consideration exists, it has not established the required elements of reward and chance. The machine in question, not substantially different from the thousands of electronic amusement machines which have proliferated in stores and in arcades across this country today, is not a gambling device per se.

Accordingly, the order of the lower court is affirmed.

      . Act of Dec. 6, 1972, P.L. 1482, No. 334 § 1, eff. June 6, 1973.

      . The record does not reflect the disposition of the criminal action against Mr. Allen.

      . Points are scored by making various combinations of cards. A straight flush wins fifty skill points; four of a kind wins twenty-five points; a full house wins ten points; a straight wins five points, etc. The minimum winning hand is a pair of aces which wins one point. In regular draw poker players compete for the best hand amongst themselves and the reward is determined by the players during betting intervals. See 14 Encyclopedia Britannica 624 (1974).

      . Inasmuch as the Commonwealth does not contend that the machine was used by Allen or his patrons for gambling, in order for the property to be subject to confiscation and destruction the machine must be so intrinsically connected with gaming as to constitute gaming per se. Nu-Ken Novelty Inc. v. Heller, 220 Pa.Super.Ct. 431, 288 A.2d 919 (1972).

      . Illustrations of the kinds of choices available to Draw Poker Machine players are found in R. F. Foster, Foster’s Complete Hoyle, at 174 (1927):
      There is no rule to prevent his throwing away a pair of aces and keeping three clubs if he is so inclined; but the general practice is for the player to retain whatever pairs or triplets he may have, and to draw to them. Four cards of a straight or a flush may be drawn to in the same way, and some make a practice of drawing to one or two high cards, such as an ace and a king, when they have no other choice. Some hands offer opportunities to vary the draw. For instance: A player has dealt to him a small pair; but finds he has also four cards of a straight. He can discard three cards and draw to the pair; or one card, and draw to the straight; or two cards, keeping his ace in the hope of making two good pairs, aces up.

      . Appellant also contends that the brief duration of the game, approximately fifteen seconds, is further evidence that the machine is a gambling device. Laris Enterprises, Inc. Appeal, 201 Pa.Super.Ct. 28, 192 A.2d 240 (1963). While in a proper case, brevity of play may tend to prove one of the elements required for a finding that a machine is a gambling device per se, we conclude that since there is ample evidence that skill is required to play Electro-Sport Poker, the fact that the playing time is brief provides little, if any, support for Appellant’s position.


author: HOFFMAN, Judge:

text:
    443 A.2d 299
    COMMONWEALTH of Pennsylvania, v. Carl Melvin SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued May 11, 1981.
    Filed Jan. 19, 1982.
    Reargument En Banc Denied April 16, 1982.

      Hubert D. Yollin, Abington, for appellant.
    Joseph J. Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant was convicted in a nonjury trial of robbery, kidnapping, burglary, recklessly endangering another person, terroristic threats, and possession of an instrument of crime. Following the denial of post-verdict motions and the imposition of sentence, new counsel was appointed for appellant to pursue this appeal. Appellant now contends, inter alia, that trial counsel was ineffective for failing to raise in post-verdict motions the lower court’s patently defective jury trial waiver colloquy. We agree and, accordingly, reverse the judgment of sentence and grant appellant a new trial.

The Commonwealth concedes that the lower court’s colloquy with appellant concerning the waiver of a jury trial was defective under the standards enunciated in Common wealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). In order to knowingly and intelligently waive his right to a jury trial, an accused must be aware of the essential elements of a jury trial, i.e., “that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.” Id., 454 Pa. at 373, 312 A.2d at 600 (emphasis added). See also Commonwealth v. Greene, 483 Pa. 195, 394 A.2d 978 (1978); Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978); Commonwealth v. Fortune, 289 Pa.Superior Ct. 278, 433 A.2d 65 (1981); Commonwealth v. Phillips, 285 Pa.Superior Ct. 485, 427 A.2d 1391 (1981); Commonwealth v. Duncan, 266 Pa.Superior Ct. 112, 403 A.2d 119 (1979); Commonwealth v. Bouie, 263 Pa.Superior Ct. 556, 398 A.2d 716 (1979). The lower court failed to inform appellant that he could participate in the jury selection and that the verdict must be unanimous. Appellant contends that the failure of his prior counsel to raise the improper colloquy in post-verdict motions denied him the effective assistance of counsel. We agree. As our Supreme Court held under similar circumstances, “the only conclusion possible is that appellant’s previous counsel was ineffective for failing to raise the issue of the validity of the jury trial waiver in post-verdict motions . . . . ” Commonwealth v. Morin, supra, 477 Pa. at 86, 383 A.2d at 832. When counsel has been found ineffective for failing to raise the adequacy of a jury trial waiver colloquy, the proper remedy is to remand for a new trial. Id., 477 Pa. at 87-88, 383 A.2d at 835.

The Commonwealth contends, however, that although the colloquy itself was insufficient, appellant signed a waiver setting forth all the essential elements of a jury trial, and thus, his consent was knowing and intelligent. We disagree. Rule 1101 of the Pennsylvania Rules of Criminal Procedure provides, in pertinent part:

In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record.

(Emphasis added.) “The intelligence of such a waiver may not be presumed, guessed or conjectured.” Commonwealth v. Tami, 264 Pa. Superior Ct. 535, 539-40, 400 A.2d 214, 216 (1979), quoting Commonwealth v. Hooks, 450 Pa. 562, 565, 301 A.2d 827, 828 (1973). The lower court failed to inform appellant during the colloquy of his right to participate in the jury selection and the need for a unanimous verdict. Although appellant signed a purported waiver containing that information, the lower court did not ask appellant whether he had read it, and, if he had, whether he understood it. Thus it was impossible for the lower court to have determined whether appellant had knowingly and intelligently waived a jury trial. Accordingly, because the lower court has failed to comply with the requirements of Pa.R. Crim.P. 1101 and Commonwealth v. Williams, supra, we must reverse the judgment of sentence and grant appellant a new trial.

Judgment of sentence reversed and appellant granted a new trial.

       Because of our disposition of this matter, we ■ need not address appellant’s remaining contentions.


author: CAVANAUGH, Judge:

text:
    443 A.2d 301
    COMMONWEALTH of Pennsylvania v. Victor GONZALES, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1981.
    Filed March 5, 1982.

      Fincourt B. Shelton, Philadelphia, for appellant.
    Mark Gurevitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before HESTER, CAVANAUGH and DiSALLE, JJ.
   CAVANAUGH, Judge:

Appellant, having waived his right to a jury trial, was tried before the Honorable Marvin Halbert of Philadelphia County and found guilty of burglary, attempted theft, possession of instruments of crime, generally, and criminal conspiracy. The lower court denied post-trial motions and sentenced appellant to not less than two months to twenty-three months of partial (weekend) confinement for burglary and attempted theft and three years concurrent probation on the other convictions.

The question raised on appeal is whether the evidence was sufficient to support appellant’s conviction for burglary. 18 Pa.C.S.A. § 3502. We conclude that the evidence was sufficient to support his conviction of burglary and affirm the judgment of sentence.

When appellant challenges the sufficiency of the evidence supporting his conviction, we must accept as true all the evidence upon which the finder of fact could properly have reached its verdict and give the Commonwealth the benefit of all reasonable inferences arising from that evidence. Commonwealth v. Madison, 263 Pa.Super. 206, 210, 397 A.2d 818, 820 (1979). So considered, the facts in this case are as follows. On December 11, 1978, at or about 4:45 p. m., Police Officer Richard Wajda of the Philadelphia Police Department, observed two males exit and run from a property located at 2439 N. Second Street in Philadelphia, Pennsylvania. Officer Wajda chased the two individuals and finally apprehended one of them, the appellant herein, Victor Gonzales. After searching the appellant, the officer found a twelve inch pry bar on his person. The 2439 N. Second Street property was a garage, which apparently had been used for repair work.

At the time of the incident, the premises, owned by Patricia Corey, was leased to Elmer Causey, and managed by the owner’s agent, Freda Koenig, who testified at trial. Ms. Koenig stated on the record that she had the doors repaired and new locks installed after these same premises had been broken into by four individuals including the appellant, just five days prior to the date of the incident which gave rise to the present charges.

Further Ms. Koenig testified that on December 11, 1978 she observed that one of the recently repaired doors had been broken into thus allowing access to the garage. Also, she observed that various items in the garage had been thrown around and the premises appeared to have been ransacked.

Appellant challenges the sufficiency of the evidence to convict him of burglary because he claims that the Commonwealth failed to prove that the appellant was not privileged or licensed to be on the premises or that the garage was not open to the public. But we must disagree.

Under the Crimes Code of Pennsylvania, a person is guilty of burglary if he enters a building or occupied structure with the intent to commit a crime therein, unless the premises are at the time open to the public or the person who enters is licensed or privileged to do so. 18 Pa.C.S.A. § 3502(a). In order to prevail at trial, the Commonwealth must prove beyond a reasonable doubt the following three elements: (1) entry of a building or occupied structure by the defendant; (2) with the. contemporaneous intent on the part of the defendant of committing a crime therein; (3) at a time when the premises are not opened to the public and the defendant was not then licensed or privileged to enter. Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980); Commonwealth v. Brosko, 243 Pa.Super. 312, 315, 365 A.2d 867, 868 (1976). At trial, evidence showed that appellant and his unknown companion entered the garage without the permission or license of Freda Koenig (at that time in control of the premises) at a time when it was not open to the public. Our focus, then, is upon the issue of whether sufficient evidence was adduced at trial to prove beyond a reasonable doubt that appellant at the time of entry intended to commit a crime inside of the garage.

The Commonwealth may prove its case by circumstantial evidence, and the specific intent to commit a crime necessary to establish the second element of burglary may thus be found in the defendant’s words or conduct, or from the attendant circumstances together with all reasonable inferences therefrom. Commonwealth v. Madison, supra; Commonwealth v. Nutter, 256 Pa.Super. 111, 389 A.2d 626 (1978).

While we have said that mere presence of a defendant at the scene is not sufficient to prove burglary, or conspiracy beyond a reasonable doubt. Commonwealth v. Eddington, 255 Pa.Super. 25, 386 A.2d 117 (1978); Commonwealth v. Smith, 264 Pa.Super. 303, 399 A.2d 788 (1979). We have also held that a factfinder may conclude beyond a reasonable doubt that when one enters a building by force, he did so with the intent to commit a crime therein. Commonwealth v. Lynch, 227 Pa.Super. 316, 319, 323 A.2d 808, 810 (1974).

Applying these familiar principles to the matter at hand and accepting the Commonwealth’s evidence as true, we are bound to conclude that there was sufficient evidence presented to support the verdict of guilty rendered by the trial judge upon the charge of burglary, beyond a reasonable doubt. Ms. Koenig, the only person with access to the premises, did not give the appellant permission to enter into the garage nor did she open the garage to the public. The door through which appellant gained entry to the garage had been forced open. When discovered, appellant was fleeing from a ransacked premises with a pry bar in his possession within minutes of his flight from the scene of the incident. Indeed we believe that the circumstances in this case give rise to an exceedingly strong inference that appellant committed the burglary. Accordingly, we hold that there is sufficient evidence to support appellant’s conviction for burglary. Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750 (1982) (attempted entry into a commercial establishment after business hours creates inference of intent to commit theft); Commonwealth v. Madison, supra.

Appellant’s second contention is that the evidence was insufficient as a matter of law to sustain his conviction for possession of instruments of crime, generally, 18 Pa.C. S.A. § 907(a) and criminal conspiracy, 18 Pa.C.S.A. § 903. Our examination of the record indicate that these issues have been waived since appellant failed to include these arguments in post-trial motions in the court below.

Appellant’s third contention is that the attempted theft count should have merged with the burglary conviction. We agree with this argument and, accordingly, vacate appellant’s conviction for • attempted theft. Crimes Code, 18 Pa.C.S. § 3502(a) (1973); Commonwealth v. Miller, 269 Pa.Super. 589, 410 A.2d 857 (1979). But where, as here, it is clear that the illegal, conviction had no effect on the actual sentence, we need not remand for resentencing. See Commonwealth v. Senyszyn, 266 Pa.Super. 480, 405 A.2d 535 (1979); Commonwealth v. Fant, 263 Pa.Super. 533, 398 A.2d 704 (1979); Commonwealth v. Miller, supra; Commonwealth v. Grant, 235 Pa.Super. 357, 341 A.2d 511 (1975).

Appellant’s fourth contention is that the trial judge committed an error of law in convicting the appellant of both possessing instruments of crime, Crimes Code, 18 Pa. C.S. § 907(a) and criminal, conspiracy, 18 Pa.C.S. § 903, thereby violating 18 Pa.C.S. § 906, which provides:

“A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.”

Both offenses for which appellant was found guilty fall within the purview of chapter 9, of the Crimes Code, the chapter mentioned in Section 906, and it is apparent in reviewing the facts that both offenses were perpetrated with one objective in mind. Accordingly, appellant’s conviction for criminal conspiracy and possessing an instrument of crime was improper. Commonwealth v. Jackson, 280 Pa.Super. 522, 421 A.2d 845 (1980); see also Commonwealth v. Tingle, supra.

Given the error committed by the lower court, we have the option to either remand for sentencing, or amend the sentence, directly. Commonwealth v. Eberts, 492 Pa.Super. 140, 422 A.2d 1154 (1980); Commonwealth v. Richbourg, 260 Pa.Super. 438, 446 n.6, 394 A.2d 1007, 1011 n.6 (1978); act of July 9, 1976, P.L. 586, No. 142, § 2, June 27, 1978; 42 Pa.C.S.A. § 706 (Purdon’s 1981). As recited earlier in this opinion, the appellant was sentenced concurrently to terms of three years probation for criminal conspiracy and for possession of an instrument of crime. Since the sentence for possession obviously did not affect the sentence for criminal conspiracy, we shall not remand but shall merely vacate the sentence imposed for possession of an instrument of crime as the lesser offense. Commonwealth v. Von Aczel, supra; Commonwealth v. Crocker, 280 Pa.Super. 818, 421 A.2d 818 (1980).

Finally, appellant contends that trial counsel was ineffective because he failed to renew his objection to testimony of a prior incident and appellant’s statement at the time of that incident, which he contends contributed significantly to his conviction. Though appellant cites no authority for this argument, we recognize that “any error that deprives a defendant of due process can... properly be remedied by a claim of ineffective assistance of counsel.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). The test to determine whether counsel’s representation comported with the constitutional mandate is whether the action or failure to act was designed to serve the best interest of the client. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979) (citing many cases). Thus where the representation is deemed effective and the failure to raise the objection was designed to serve the interest of the client, it cannot be said that the client has been treated unfairly.

Appellant contends that counsel’s failure to renew his objection to testimony of defendant’s prior act and his statement at the prior incident, deprived the appellant of a fair trial. It is of course axiomatic that evidence of prior crimes or acts is inadmissible against a defendant at this trial on another charge. E.g., Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973). The Commonwealth may not strip a defendant of the presumption of innocence by proving that he has committed other criminal acts. E.g., Commonwealth v. Roman, supra; Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). There are, however, important exceptions to this rule where the prior criminal acts are so closely related to the crime charged that they show inter alia motive, intent, malice, identity, or a common scheme, plan or design. E.g., Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972); Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955).

In the present case, the witness, Freda Koenig testified that these same premises had been broken into just five days prior to the present incident by the appellant and three companions. At that time, appellant stated that the lessee, Mr. Causey, owed him two weeks pay. We think this testimony was relevant and material in proving intent, motive and identity. Commonwealth v. Glover, supra; Commonwealth v. Faison, supra; Commonwealth v. Wable, supra. When confronted with a claim of ineffectiveness of counsel, we must utilize a two-step analysis. First, we must determine whether the issue underlying the charge of ineffectiveness is of arguable merit. If the underlying issue is found to be of adequate merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Applying the first part of this test, we conclude that Gonzales’ claim of ineffectiveness of counsel is without merit. The testimony of the prior incident including appellant’s statement were relevant and material to the charge he was presently being tried on and thus, trial counsel was not ineffective for failing to renew the motion to strike the testimony.

Judgments of sentence for burglary and criminal conspiracy are affirmed; judgments of sentence for attempted theft and possession of instrument of crime are vacated.

DiSALLE, J., did not participate in the consideration or decision in this case.

      . Appellant argues that the garage was under the control of the lessee, Mr. Causey, and not the agent, Ms. Koenig, and is thus fatal to the Commonwealth’s case. But we must disagree since Ms. Koenig was in total control of the premises at the time of the incident as she was the only person with a key to the newly installed locks. Therefore Ms. Koenig was the only person who could testify that appellant was not a licensee or privileged and the premises were not open to the public at the time.

      . In light of our disposition of the attempted burglary conviction, we need not consider this argument in reference to that conviction.

      . Criminal conspiracy is a felony of the second degree, 18 Pa.C.S.A. §§ 3502 and 905, and thus exposed the appellant to a possible term of imprisonment of up to 10 years, id. at § 1103(2). Possession of an instrument of crime is a misdemeanor of the first degree, id, at § 907, carrying a possible term of imprisonment of five years. Id. at § 1104(1).

      . In light of our disposition in this case, we need not consider appellant’s other claims of ineffective assistance of counsel.

      . “... [T]his court was convinced beyond a reasonable doubt that Gonzales was indeed involved in this burglary, and that his purpose of entering the premises was that of theft. This was especially true in light of his statement to Ms. Koenig that the tenant owed him money.” (Emphasis added). L.Ct. Op. p. 3.