text:
    465 A.2d 1014
    Herbert HALSBAND, Executor of the Estate of Bonnie L. Cooperman, Deceased v. The UNION NATIONAL BANK OF PITTSBURGH, Executor of the Estate of Jack S. Cooperman, Deceased, Appellant. Eileen BERGER, Administratrix of the Estate of Avery Michael Cooperman, Deceased; Eileen Berger, Administratrix of the Estate of Carla Diane Cooperman, Deceased; and B & C Playlands, Inc., a corporation v. The UNION NATIONAL BANK OF PITTSBURGH, Executor of the Estate of Jack S. Cooperman, Deceased, Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1981.
    Filed Aug. 5, 1983.
    Reargument Denied Oct. 17, 1983.

      James P. McKenna, Jr., Pittsburgh, for appellant.
    John E. Evans, Jr., Pittsburgh, for appellees.

      Before PRICE, BROSKY and MONTEMURO, JJ.

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

   PER CURIAM:

These consolidated appeals arise from an airplane accident which resulted in the deaths of the pilot, Jack S. Cooperman, his wife Bonnie L. Cooperman and their children, Avery Michael and Carla Diane. Suits were brought against appellant, the estate of Mr. Cooperman, by the following appellees: the representatives of the estates of Mrs. Cooperman and the two children, and B & C Playlands, Inc., the company which owned the airplane involved. The jury rendered verdicts in favor of appellant, and appellees moved for a new trial. A new trial was granted on the basis that the trial court erred in refusing to charge the jury on the doctrine of res ipsa loquitur. This appeal followed. We agree with the court below that appellees are entitled to such an instruction and affirm.

On December 8, 1975 at about 3:00 p.m. the twin engine Beechcraft Bonanza took off from Meigs Field in Chicago. The plane was piloted by Mr. Cooperman and carried his wife and children as passengers. Their intended destination was Pittsburgh. It was snowing and the runway was slushy. Shortly after takeoff, two “May Day” calls came by radio from the pilot, followed by the statement that he was “ditching”. The plane came down into Lake Michigan, and although the occupants were apparently uninjured in the descent and managed to get out of the plane, the entire family was drowned.

The National Transportation Safety Broad investigated the accident in an attempt to determine its cause. Although the final conclusion of the Board was not disclosed to the jury, counsel for all parties stipulated that any portion of the report could be offered in evidence, without the necessity of calling witnesses.

Appellees presented two expert witnesses, both professional pilots, who offered detailed opinion testimony in support of their view that the accident was caused by pilot error which constituted negligence on the part of Mr. Cooperman. While both experts stated that they did not know the exact cause of the accident (N.T. 91, 172), each indicated that he had formulated an opinion based upon the information available (N.T. 63, 172).

Appellees’ first witness, Joseph Sabol, had been Mr. Cooperman’s flight instructor. He testified, inter alia, that

The takeoff under the existing conditions would have been challenging for a pilot of far greater experience than Cooperman (N.T. 74) and even Mr. Sabol himself, with great experience, would not have done so (N.T. 77). Before takeoff, Cooperman had to remove snow from the plane and there was slush on the ground which would get on the plane and freeze into ice when it became airborne and the takeoff should not have been attempted (N.T. 64). Because it was snowing the pilot had little visual contact at takeoff, and Cooperman did not have the requisite experience to shift readily from visual to instrument control immediately after takeoff, a thing which is always precarious in conditions such as existed (N.T. 65).
Cooperman failed to turn on manually a heating device to prevent icing of the instrument which gives speed and vertical ascent information, air speed being important to a pilot in lifting off the ground (N.T. 86, 87).
The propellers of this twin engine plane sounded grossly out of synchronization going down a slushy runway into a snowstorm and Cooperman should have aborted the flight in these circumstances (N.T. 77, 90).
Instead of taking the plane into a turn when only 75 to 100 feet from the ground, Cooperman should have waited until 400 to 500 feet from the ground in accordance with the recommended procedure (N.T. 79).
Cooperman flew over water without having the necessary survival equipment aboard (N.T. 81, 88).

Appellee’s second witness was Alex Gregal, a salesman of Beechcraft airplanes, who was familiar with the type of plane involved. The following is a summary of his opinion testimony:

The accident was caused by pilot error (N.T. 169) consisting of an accumulation of shortcomings and mistakes (N.T. 149) due to inexperience and a low proficiency level of the pilot (N.T. 147), there being no record that he had any substantial experience in instrument flying (N.T. 150).
Cooperman took off with slush streaming back along parts of the plane, which at the existing freezing level could result in erroneous reading of flight instruments (N.T. 163), and also the static parts could get water in them and freeze when airborne (N.T. 165) and it was error to take off and fly into a forecast of known icing conditions without de-icing equipment on the wings or tail (N.T. 168).
Cooperman turned left when only 75 to 100 feet in the air, which is hazardous and not good procedure (N.T. 165), and particularly so in the existing weather conditions (N.T. 167) and in view of his level of ability (N.T. 167), and this caused the plane to lose some of its lift (N.T. 167).

Thus, appellees’ expert witnesses were clearly of the opinion that the fatal accident was caused by pilot error, inexperience, and low proficiency under the circumstances.

Appellants produced expert testimony that a mechanical idiosyncracy had been discovered in the type of plane involved, which could cause engine failure under the conditions existing at take-off. Specifically, Joseph Diblin, a retired employee of AVCO Lycoming, the manufacturer of the aircraft’s engines, testified that AVCO Lycoming tests revealed that, with this model, when full alternate air heat is employed for smooth engine performance in cold weather, the alternate air heat handles should be turned to the “off” position for at least two minutes prior to take off. Failure to comply with this waiting period, Mr. Diblin stated, would result in erratic fuel flow to the engines (N.T. 229).

Timothy Doyle, a pilot and accident reconstructionist, testified that it was his opinion that this idiosyncracy in the Beechcraft Bonanza resulted in engine failure which caused the accident (N.T. 299). He also concluded that Mr. Cooper-man would have no way of knowing of such a problem, or how to prevent it, as the flight handbook for the Beechcraft Bonanza contained no information on the subject (N.T. 288-289).

Appellant also pointed to evidence that the pilot accomplished the act of ditching in Lake Michigan without injury to his passengers to counter appellees’ assertion of pilot error and lack of expertise (N.T. 299-300).

The trial judge did not believe that the doctrine of res ipsa loquitur applied in the context of this evidence. On consideration, of appellees’ motion for a new trial, however, the court determined that in accordance with Hollywood Shop, Inc., v. Pa. Gas & Water Co., 270 Pa.Super. 245, 411 A.2d 509 (1979), since appellees had not presented evidence of the “exact” cause of the accident, a res ipsa charge was required.

Appellant does not suggest that appellees’ offer of specific acts of pilot negligence would bar application of the doctrine in this case. Rather, it is argued that appellees were not entitled to such an instruction because they failed to meet their burden under the Restatement (Second) of Torts § 326(D) (1965), adopted as the law of this Commonwealth by the Pennsylvania Supreme court in Gilbert v. Korvette’s, Inc., 457 Pa. 602, 327 A.2d 94 (1974).

Section 328, titled Res Ipsa Liquitur, provides:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.

Restatement (Second) of Torts § 328(D) (1965). We find that the three requirements of § 328(D)(1) were fulfilled, and that appellees were therefore entitled to a jury instruction on the doctrine of res ipsa loquitur.

Appellant does not deny that any negligence of Mr. Cooperman was within the scope of his duty to his passengers, but claims that appellees did not meet their burden under § 328(l)(a) and (b).

Examination of the record in this case clearly shows that this accident was “an event ... of a kind which ordinarily does not occur in the absence of negligence.” The wreckage was raised from Lake Michigan, and inspected. No evidence was introduced to show that the report of the National Transportation Safety Board revealed the failure of any component of the plane which could explain the accident. Although the left engine of the plane was not recovered (N.T. 137), the right engine of the plane was examined, and nothing was found to indicate any mechanical malfunction (N.T. 317, 318). The plane was capable of flying well on one engine alone (N.T. 148, 336). Under these circumstances it would indeed be unusual for an accident of this type to occur in the absence of negligence.

We have unearthed no Pennsylvania case dealing with the application of § 328(D) to an airplane crash. We note, however, that

[t]he earlier cases dealing with aviation took the position that there was not yet such common knowledge and expertise of its hazards as to permit such a conclusion from the unexplained crash of a plane. With rapid technological improvement, the position began to change; and all of the later cases now agree that the safety record justifies the application of res ipsa loquitur to such a crash, or even to the complete disappearance of a plane.

Prosser, Handbook of the Law of Torts § 39 at 216 (4th Ed.1971). While the mere occurrence of an airplane accident will not automatically invoke the doctrine, when an investigation conducted by a qualified and disinterested body reveals no evidence of mechanical malfunction, it is apparent that an accident will not ordinarily have occurred in the absence of pilot negligence.

Appellant’s principal claim is that “other responsible causes were not “sufficiently eliminated by the evidence.” Specifically, appellant argues that in providing an. alternate explanation for the accident (the possibility of engine failure due to peculiarities of the Beechcraft Bonanza), it has precluded the sufficient elimination of “other responsible causes.” We do not find this argument convincing.

As to the second requirement under Section 328(D)(1), comment f, dealing with this clause states that:

[T]he plaintiff is not required to exclude all other possible conclusions beyond a reasonable doubt, and it is enough that he makes out a case from which the jury may reasonably conclude that the negligence was, more probably than not, that of the defendant.

Restatement of Torts (Second) § 328D, comment f.

As our supreme court reiterated in Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981)

Under the teaching of Gilbert, supra, the critical inquiry as to whether “other responsible causes are sufficiently eliminated by the evidence” is whether a particular defendant is the responsible cause of the injury.” Responsibility, of course, may be shared by two or more defendants. See W. Prosser, The Law of Torts (4th Ed.) § 39. “Consequently if the responsibility is vested in and shared by two or more parties, each may be subject to liability....” 457 Pa. 602, 614-615, 327 A.2d 94, 101 (1974).

Jones, supra, 496 Pa. at 475, 437 A.2d at 1139.

The present action is not one wherein the injury was necessarily caused either by the defendant’s negligence or that of third parties. Even if a jury found that the negligence of third parties contributed to appellees’ injuries, it might still reasonably conclude that Mr. Cooperman was also guilty of negligence which was a concurrent and substantial factor in bringing about the accident.

In furtherance of its position, appellant contends that failure of appellees to join Beechcraft and AVCO Lycoming is a fatal flaw barring the application of Section 328D. We do not agree. Clearly, where responsibility is shared by two or more parties, the plaintiff may sue all of them jointly, but is not compelled to do so. He or she may sue any of them, and the nonjoinder of others may not be pleaded as an objection to the suit. Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 478, 437 A.2d 1134, 1141 (1981). See also, 2 Standard Pennsylvania Practice 371. In the instant case, appellant may have joined AVCO Lycoming and Beechcraft if convinced that these companies were responsible for the accident. See Jones, supra, 496 Pa. at 478, 437 A.2d at 1141.

It is quite true that where it is equally probable that acts of parties other than the defendant are the exclusive cause of a plaintiffs injuries, res ipsa loquitur does not apply. This is not the case here, however. Appellees presented considerable evidence of the inexperience and negligence of Mr. Cooperman. Of course, this evidence did not establish the exact cause of the accident—indeed, if it had, no res ipsa instruction would have been necessary. The evidence was sufficient, however, to enable a jury reasonably to infer that Mr. Cooperman’s was a substantial factor in causing the accident. Thus, appellees were entitled to a charge on res ipsa loquitur in accordance § 328b(3). We therefore agree with the court below that appellees are entitled to a new trial.

Order affirmed.

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

      . The testimony of appellees’ experts was too lengthy to be related verbatim. The court below ably summarized the salient points made by these witnesses, and it is this summary which is reproduced here.

      . But see Hunziker v. Scheidemantle, 543 F.2d 489 (3rd Cir.1976) (applying Pa. law).

      . Proximate cause "... may be established by evidence that the defendant’s negligent act ... was a substantial factor in bringing about plaintiff’s harm ... the fact that some other cause concurs with the negligence of the defendant does not relieve the defendant from liability." Hamil v. Bashline, 481 Pa. 256, 265-66, 392 A.2d 1280, 1284, 1285 (1978).

      . It is appellant’s position that AVCO Lycoming was negligent in designing the engine and Beechcraft was negligent in failing to warn of a danger of engine failure in cold weather.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    465 A.2d 1019
    Anne S. LEVIN, a minor by her parents and natural guardians, Marvin J. LEVIN and Charlotte W. Levin and Marvin J. Levin and Charlotte W. Levin in their own right, Appellants, v. DESERT PALACE INCORPORATED t/a Caesar’s Palace.
    Superior Court of Pennsylvania.
    Argued April 21, 1983.
    Filed Aug. 19, 1983.
    Reargument Denied Oct. 11, 1983.

      See also, 291 Pa.Super. 408, 435 A.2d 1292.

      Marvin J. Levin, in propria persona.
    Joel P. Fishbein, Philadelphia, for appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   WICKERSHAM, Judge:

On September 7, 1976, Marvin Levin and his wife and daughter were guests at Caesar’s Palace, a resort hotel in Las Vegas, Nevada owned by the defendant corporation. The Levins claim that in the early morning hours while they were asleep, an unknown intruder entered their suite and stole jewelry valued at $18,550 and $1,500 in cash.

The Levins allege that the negligence of the defendant hotel in failing to provide adequate security measures was the cause of their property loss. Some of the facts concerning this allegation are in dispute. It is clear that each inner door to the Levins’ suite had posted on it a warning to use the night lock before retiring and a notice that safe deposit boxes were available for guests’ valuables. Plaintiffs and defendant disagree, however, as to whether all the doors to the suite were equipped with dead-bolt mechanisms and as to whether the dead-bolts and latches that did exist were in operating order.

On January 23, 1980, by agreement of the court below and counsel for the parties, the facts upon which the plaintiffs were to rely to establish their case were made part of the record by stipulation as though a jury had been impaneled and sworn and had heard the evidence. Counsel for the plaintiffs stated that he was proceeding on a negligence theory only and would present no evidence with regards to “gross negligence.” (RR at 23a). Defendant then moved for a nonsuit.

The nonsuit was granted by the court below on the ground that the Nevada Innkeepers Statute, Nev.Rev.Stat. § 651.010 et seq. (1953), required that plaintiffs prove gross negligence on the part of the defendant, and that plaintiffs, by their counsel, admitted an inability to establish the requisite gross negligence. Following the refusal of the court below to vacate the nonsuit, plaintiffs appealed. Judgment was subsequently entered.

Appellants state the question presented to this court as follows:

Did the lower court properly grant appellee’s motion for a non-suit on the ground that the Nevada Innkeepers’ Statute permitted recovery on a gross neglect theory only?

Brief for Appellants at 2.

Before we specifically address appellants’ question, we must decide whether Pennsylvania or Nevada law is applicable to the case before us.

The incident occurred in Las Vegas, Nevada. The parties agreed and the court below determined that Nevada law was applicable to this claim. We agree.

In Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964), the Pennsylvania Supreme Court adopted a choice of law analysis that focuses on a balancing of the policies and interests underlying the particular issue before the court. The law of that state which has the greater interest in the application of its law governs.

The Nevada Innkeepers Statute emphasizes a limited innkeepers’ liability for guests’ losses. Nev.Rev.Stat. § 651.010 (1953). The statute provides that a hotel owner can be held liable for guests’ losses only upon a finding of “gross neglect.”

In contrast, the Pennsylvania statute requires a higher degree of care on the part of the hotel owner in order for him to escape liability. See Act of June 12, 1913, P.L. 481, 37 P.S. § 61. In Pennsylvania, an innkeeper is liable for his guests’ property losses unless he equips each room with bolts and locks on all doors, locks on all windows, and a copy of the Pennsylvania Innkeepers Statute. He also must have a safe or vault available for guests’ use.

Thus, we are faced with the question of which of these two different standards is applicable to this case. Griffith, supra, requires that we look to the law of the state having the greater interest in the application of its law.

Obviously, Pennsylvania has an important interest in protecting the welfare of its citizens. We conclude, however, that this interest is outweighed by Nevada’s interest in regulating the conduct and prescribing the liability of hotel owners within its jurisdiction. A hotel owner relies on the laws of the state in which the hotel is located to determine the standard of conduct required of him. It could not be expected that a hotel should comply with the laws of all the states of which its guests are citizens.

In Hager v. Etting, 268 Pa.Super. 416, 408 A.2d 856 (1979), this Court discussed a similar conflict of laws question. In Hager, plaintiff, a citizen of Pennsylvania, was injured while attending a party in New Jersey. This court held:

The law of New Jersey should govern in determining the duty the possessor of the land in this case owed to appellee. We see no significant interest that the Commonwealth of Pennsylvania would further by having its law applied as to duties of possessors of land where the alleged tort occurred in New Jersey.

Id., 268 Pa.Superior Ct. at 419, 408 A.2d at 858.

In the instant case, the alleged tort occurred in Nevada. Pursuant to the Hager reasoning, the duty that the hotel owner owed to plaintiffs should be governed by Nevada law.

A choice of law question almost identical to that set forth in the instant claim faced the Federal District Court for the Eastern District of Pennsylvania in Kabo v. Summa Corporation, 523 F.Supp. 1326 (E.D.Pa.1981). As in the present case, the plaintiffs in Kabo were sleeping in their Las Vegas hotel room when their property was stolen. The District Court held that Nevada law governed. The court reasoned:

An innkeeper in Nevada is entitled to rely upon that state’s statutes in not taking precautions that would have been mandated by common law or another state’s statutes .... [WJhen the conduct and injury giving rise to the suit occur in the defendant’s home state, the defendant has a justified expectation that the law of his home state will be applied. A contrary position would penalize Nevada innkeepers for not taking special measures solely for the benefit of Pennsylvania patrons.

Id. at 1329.

Of course, we are not bound by this decision. Nevertheless, we find in the instant case, as the Eastern District Court did in Kabo, that Nevada’s interests outweigh Pennsylvania’s and that, therefore, Nevada law governs.

Plaintiffs would have us apply Nevada common law rather than the Nevada Innkeepers Statute (Nev.Rev.Stat. § 651.010 et seq. (1953)). Under Nevada common law, an innkeeper is liable practically as an insurer for property losses suffered by his guests. See Cloward v. Pappas, 79 Nev. 482, 387 P.2d 97 (1963). Plaintiffs argue that section 651.010 is not controlling because it refers only to property “left” in a guest’s hotel room and does not apply when property is stolen from a room that is occupied by the guests. Conversely, defendant contends that section 651.-010 is applicable whether or not the guests are present at the time of the loss and relieves defendant of liability unless gross negligence is shown.

. No Nevada state court has yet had the opportunity to discuss the meaning of section 651.010. We believe that the Nevada Supreme Court would accept defendant’s interpretation of the statute.

Plaintiffs contend that the phrase “property left in the room” indicates that the statute applies only in those cases in which the guests place their belongings in the hotel room and then absent themselves from their room. This interpretation is illogical. It would impose upon the hotel owner a different standard of care depending upon whether or not a room is occupied. Plaintiffs’ argument would have the effect of requiring the hotel owner to assume a higher degree of responsibility for property loss when guests are present in their rooms than when a room is unoccupied. Such an incongruous effect was recognized by the Court of Appeals for the Second Circuit.

While we need not reach the issue, we do note that appellees’ construction of the Nevada statute would have the anomalous effect of requiring the innkeeper to exercise the highest degree of care while the guest was in the room, presumably the time when the risk of theft would be slightest.

Levitt v. Desert Palace, Inc., 601 F.2d 684, 686 n. 2 (2d Cir.1979). Accord Owens v. Summa Corporation, 625 F.2d 600, 603 (5th Cir.1980). The Nevada legislature could not have intended such a result.

The more logical interpretation of the statute is that the phrase “property left in the room” distinguishes between property turned over to the hotel for safekeeping and property that guests allow to remain in their rooms. Our interpretation of the statute is in accord with the determination of the Court of Appeals for the Fifth Circuit in Owens v. Summa Corporation, supra:

We believe that the statute’s reference to ‘property left in the room of any guest’ distinguishes between property left in the room and property given to the hotel for safe-keeping rather than between property left in the room while the guests are out and property that they keep with them while they sleep.

Id. at 602. Accord Kabo v. Summa Corporation, 523 F.Supp. 1326, 1330 (E.D.Pa.1981). We agree with the Fifth Circuit that this is the most reasonable interpretation of the statute.

Thus, absent guidance from the Nevada courts, we conclude that section 651.010 applies to any guests’ property not turned over to the hotel for safekeeping. Section 651.010 is applicable in the instant case regardless of the fact that the plaintiffs were present in the room when the theft occurred.

Since we have concluded that the Nevada Innkeepers Statute is applicable and since that statute imposes liability only when gross negligence is proved, defendant hotel cannot be held liable in the instant case. Plaintiffs admitted through counsel that they were unable to prove gross negligence. Therefore, the trial court’s grant of defendant’s motion for nonsuit was proper.

Judgment affirmed.

      . Nev.Rev.Stat. § 651.010 (1953) provided:
      651.010 Civil liability of innkeepers limited. No owner or keeper of any hotel, inn, motel, motor court, or boardinghouse or lodginghouse in this state shall be civilly liable after July 1, 1953, for the loss of any property left in the room of any guest of any such establishment by reason of theft, burglary, fire or otherwise, in the absence of gross neglect upon the part of such keeper or owner.
      Although this section was amended in 1979, the 1953 version of the statute was in effect at all times relevant to this proceeding and therefore will be the focus of our consideration.

      . 37 P.S. § 61 provides:
      § 61. Non-liability for valuables not deposited in safe
      No innkeeper or hotelkeeper, which term, as used in this act, shall include apartment hotelkeepers, whether individual, partnership, or corporation, who constantly has in his inn or hotel, which term, as used in this act, shall include apartment hotels, a metal safe or suitable vault, in good order and fit for the custody of money, bank notes, jewelry, articles of gold and silver manufacture, precious stones, personal ornaments, railroad mileage books or tickets, negotiable or valuable papers, and bullion, and who keeps on the doors of the sleeping-rooms used by guests suitable locks or bolts, and on the transoms and windows of said rooms suitable fastening, and who keeps a copy of this section, printed in distinct type, constantly and conspicuously posted, in not less than ten conspicuous places in all, in said hotel or inn, shall be liable for the loss or injury suffered by any guest, unless such guest has offered to deliver the same to such innkeeper or hotelkeeper, for custody in such metal safe or vault, and such innkeeper or hotelkeeper has omitted or refused to take it and deposit it in such safe or vault for custody, and- to give such guest a receipt therefor: Provided, however, That the keeper of any inn or hotel shall not be obliged to receive from any one guest, for deposit in such safe or vault, any property hereinbefore described exceeding a total value of three hundred dollars, and shall not be liable for any excess of such property, whether received or not.


text:
    August 19, 1983.
    464 A.2d 535
    Brobst, Appellant v. United Wesleyan College.
    Argued September 8, 1982.
    Robert P. Grim, for appellant; Thomas Alfred Wallitsch, for appellee.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   Order affirmed.


text:
    464 A.2d 535
    Commonwealth v. Brown, Appellant.
    Argued April 27, 1983.
    Martin Murray Scoratow, for appellant; Dara A. DeCourcy, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   Judgment of sentence affirmed.

POPOVICH, J. concurred in the result.


text:
    464 A.2d 535
    Commonwealth v. Byrd, Appellant.
    Argued June 9, 1982.
    Harry C.J. Blair, for appellant; James Martin Connell, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 535
    Commonwealth v. Daniels, Appellant.
    Petition for Allowance of Appeal Denied April 3, 1984.
    Submitted February 4, 1983.
    Anne L. Wall, Assistant Public Defender, for appellant; Kenneth D. Brown, District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   The judgment of sentence of the learned Lycoming County Common Pleas Court Judge Thomas C. Raup is affirmed.


text:
    464 A.2d 536
    Commonwealth v. DeLeur, Appellant.
    Submitted January 19, 1982.
    Albert Joseph Flora, Assistant Public Defender, for appellant; Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 536
    Commonwealth v. Godfrey, Appellant.
    Submitted February 9, 1983.
    Joseph N. Bongiovanni, III, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   Order affirmed.


text:
    464 A.2d 536
    Commonwealth v. Gordon, Appellant.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.
    Argued February 8, 1983.
    George W. Westervelt, Jr., for appellant; John B. Dunn, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and MONTEMURO, JJ.
   Judgment of sentence affirmed.

MONTEMURO, J., concurred in the result.


text:
    464 A.2d 537
    Commonwealth v. Humphreys, Jr., Appellant.
    Petition for Allowance of Appeal Denied Dec. 14, 1983.
    Argued May 4, 1983.
    W. Russell Carmichael, for appellant; Sandra L. Elias, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   The judgment of sentence is affirmed on the opinion of the learned Delaware County Common Pleas Court Judge Clement J. McGovern, Jr.


text:
    464 A.2d 537
    Commonwealth v. Moore, Appellant.
    Submitted June 9, 1982.
    Jon C. Lyons, for appellant; Louise G. Herr, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    464 A.2d 537
    Commonwealth v. Vasquez, Jr., Appellant.
    Petition for Allowance of Appeal Denied Dec. 19, 1983.
    Argued May 25, 1982.
    Larry B. Maier, for appellant; Heather J. Mumma, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Judgment of sentence is affirmed.

BROSKY, J., filed a memorandum concurring opinion.

WIEAND, J., concurred in the result.


text:
    464 A.2d 538
    Commonwealth v. Wentling, Appellant.
    Submitted November 9, 1982.
    J. Stevenson Suess, for. appellant; William M. Kern, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and MONTGOMERY, JJ.
   Order affirmed.


text:
    464 A.2d 538
    Commonwealth v. Williams, Appellant.
    Petition for Allowance of Appeal Denied Dec. 14, 1983.
    Argued June 8, 1982.
    Gary R. Egoville, Assistant Public Defender, for appellant; J. William Ditter, III, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 538
    Gibson, et al., Appellants v. Botti, et al.
    Argued February 22, 1983.
    C. Gates, Jr., for appellants; Alfred C. Maiello, for appellees.
    Before SPAETH, BROSKY and JOHNSON, JJ.
   Order is affirmed.


text:
    464 A.2d 538
    Hayes, Appellant v. SEPTA.

      Submitted February 10, 1983.
    Thomas R. Kline, for appellant; Stuart A. Schwartz, for appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   Judgment affirmed.


text:
    464 A.2d 539
    In Matter of DuPuis and Green.
    Argued May 24, 1983.
    Marilyn Woolery, for appellant; Joseph Martone, for participating party.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   Decree affirmed.


text:
    464 A.2d 539
    Rosato, et ux. v. Fry, Appellant.
    Argued March 10, 1982.
    Angela E. Nolan, for appellant; Bruce A. O’Neill, for appellees.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Order affirmed.


text:
    August 26, 1983.
    464 A.2d 539
    Black Top, et al. v. Carlo, et al., Appellants.
    Argued March 29, 1983.
    John P. Liekar, Jr., for appellants; Lawrence R. Zewe, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   The judgment of the lower court is hereby affirmed.


text:
    464 A.2d 539
    Brazell, et al., Appellants v. DeRose, et al.
    Petition for Allowance of Appeal Denied Jan. 31, 1984.
    Argued March 30, 1983.
    Michael Hahalyak, for appellants; Michael W. Burns, for appellees.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   The order of the lower court is hereby affirmed.


text:
    464 A.2d 540
    Commonwealth v. Cowgill, Appellant.
    Petition for Allowance of Appeal Denied Dec. 14, 1983.
    Submitted April 28, 1983.
    Barry M. Miller, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   Order affirmed.


text:
    464 A.2d 540
    Commonwealth v. Dorsey, Appellant.
    Submitted March 8, 1982.
    Kevin J. Kelleher, for appellant; John L. Obrecht, Assistant District Attorney, for Commonwealth appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 540
    Commonwealth v. Evans, Appellant.
    Submitted April 6, 1983.
    Joan A. Brown, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 540
    Commonwealth v. Faust, Appellant.
    Petition for Allowance of Appeal Granted May 24, 1984.
    Argued March 2, 1983.
    Ronald David Ashby, for appellant; John A. Reilly, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., CAVANAUGH and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 541
    Commonwealth v. Forrest, Appellant.
    Submitted May 2, 1983.
    Barbara L. Charles, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    464 A.2d 541
    Commonwealth v. Frazier, Appellant.
    Submitted May 19, 1983.
    Vincent T. Snyder, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 541
    Commonwealth v. Hassinger, Appellant.

      Submitted March 8, 1983.
    John B. Schaner, for appellant; William A. Helm, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., WICKERSHAM and MONTEMURO, JJ.
   Judgments of sentence affirmed.


text:
    464 A.2d 541
    Commonwealth v. Johnson, Appellant.
    Submitted April 21, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    464 A.2d 542
    Commonwealth v. Jones, Appellant.
    Petition for Allowance of Appeal Denied Feb. 10, 1984.

      Submitted April 7, 1983.
    Daniel Paul Alva, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   The judgment of sentence is affirmed.


text:
    464 A.2d 542
    Commonwealth v. Linder, Appellant.
    Argued May 19, 1983.
    Timothy C. Ficchi, for appellant; Michael Clarke, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and BROSKY, JJ.
   The judgment of sentence is affirmed.


text:
    464 A.2d 542
    Commonwealth v. McCullough, Appellant.
    Argued June 7, 1983.
    Jay Stuart Nedell, for appellant; Shad Connelly, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., SPAETH and HESTER, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    464 A.2d 543
    Commonwealth v. Pelzer, Appellant.
    Submitted April 14, 1983.
    Gary Phillip Heslin, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, POPOVICH and HOFFMAN, JJ.
   Order affirmed.


text:
    464 A.2d 543
    Commonwealth v. Sullivan, Appellant.
    Argued June 1, 1983.
    Donna DeVita, for appellant; Robert Borthwick, for participating party.
    Before ROWLEY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    464 A.2d 543
    Commonwealth v. Zehring, Jr., Appellant.

      Argued April 13, 1983.
    Larry B. Maier, for appellant; Richard A. Sheetz, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    466 A.2d 705
    Feingold, Appellant v. Gilmore.
    Reargument Denied Oct. 25, 1983.
    Petition for Allowance of Appeal Denied Feb. 29, 1984.
    Argued September 14, 1982.
    James L. Womer, Jr., for appellant; Christopher J. Pakuris, for appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Ethan Allen Doty is affirmed.


text:
    464 A.2d 543
    Forman, et ux., Appellants v. Rybas, et al.

      Argued May 18, 1983.
    Gerald J. Williams, for appellants; Benjamin Paul, for appellees.
    Before HESTER, BROSKY and BECK, JJ.
   Order affirmed.


text:
    464 A.2d 544
    Gough v. Gough, Appellant.
    Argued June 17, 1983.
    Albert Momjian, for appellant; B. Shane, for appellee.
    Before ROWLEY, McEWEN and WATKINS, JJ.
   Order affirmed.


text:
    464 A.2d 544
    Henderson etc., et al. v. State Farm Ins. Co., Appellant.
    Argued March 22, 1983.
    Michael T. Dolan, for appellant; Richard B. Schwartz, for appellees.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Order is affirmed.

POPOVICH, J., filed a memorandum concurring statement.

HESTER, J., filed a memorandum dissenting opinion.


text:
    466 A.2d 705
    Kashetta, Appellant v. Kashetta.
    Reargument Denied Oct. 25, 1983.
    Petition for Allowance of Appeal Denied June 12, 1984.
    Submitted March 1, 1983.
    Andrew A. Kashetta, appellant, in propria persona; John Brooks Randle, for appellee.
    Before CERCONE, P.J., CAVANAUGH and WIEAND, JJ.
   The order of the lower court is affirmed.


text:
    464 A.2d 544
    Liptak v. Liptak, Appellant.
    Submitted April 13, 1983.
    Robert Liptak, appellant, in propria persona; Lila F. Levy, for appellee.

      Before HESTER, CAVANAUGH and POPOVICH, JJ.
   Order affirmed.


text:
    464 A.2d 545
    Parker v. Parker, Appellant.
    Argued June 17, 1983.
    Howard R. Cohen, for appellant; Rosalie Davies, for appellee.
    Before ROWLEY, McEWEN and WATKINS, JJ.
   Order affirmed.


text:
    464 A.2d 545
    Pashman, Appellant v. Arlene Chin. Pashman, Appellant v. Edwin Chin, et al.
    Argued April 20, 1983.
    Marc S. Weisberg, for appellant; Andrew F. Napoli, for appellees.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    464 A.2d 545
    Schumacher v. Schumacher, Appellant.
    Argued June 16, 1983.
    Michael A. Tier, for appellant; Fred T. Cadmus, III, for appellees.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   Affirmed.

McEWEN, J. concurred in the result.


author: SPAETH, Judge:

text:
    465 A.2d 1023
    COMMONWEALTH of Pennsylvania v. Joyce BYRON, a/k/a Byron Joyce, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1983.
    Filed Sept. 2, 1983.
    Petition for Allowance of Appeal Denied Feb. 7, 1984.

      Mitchell A. Kaufman, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERONE, President Judge, and SPAETH and HESTER, JJ.
   SPAETH, Judge:

This is an appeal from judgments of sentence for burglary and indecent assault. Appellant was convicted of forcibly entering the home of the victim, a 60 year old woman, and assaulting her. The trial court sentenced appellant to IV2 to 5 years imprisonment for burglary, and 2 years probation for assault, the sentences to be served consecutively. We agree with appellant’s argument that he should not have been sentenced for both offenses. We therefore vacate the judgment of sentence for indecent assault as the lesser of the two sentences. Appellant makes other arguments, but these lack merit. The judgment of sentence for burglary is therefore affirmed.

1

When before the trial court, appellant failed to question the legality of his sentence. This failure, however, did not result in his waiving the argument he now makes. See, Commonwealth v. Paige, 287 Pa.Super. 133, 142 n. 3, 429 A.2d 1135, 1140 n. 3 (1981) (objections to an illegal sentence not waived by failing to raise them in post-trial proceedings); Commonwealth v. Everett, 277 Pa.Super. 323, 419 A.2d 793 (1980) (same).

Section 3502(d) of the Crimes Code provides:

(d) Multiple convictions.—A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree. 18 Pa.C.S.A. § 3502(d).

It was permissible for the trial judge, who tried appellant without a jury, to find appellant guilty of both burglary and indecent assault. However, since indecent assault is not a felony of the first or second degree but a misdemeanor, 18 Pa.C.S.A. § 3126, it was not permissible for the judge to convict appellant of both offenses, which is what the judge did by sentencing appellant for both burglary and indecent assault. In Commonwealth v. Black, 267 Pa.Super. 598, 407 A.2d 403 (1979), we said:

Of the distinction between a verdict and a conviction our Supreme Court long ago said: “When the law speaks of a ‘conviction,’ it means & judgment, and not merely a verdict, which in common parlance is called a ‘conviction.’ ” Smith v. Commonwealth, 14 Serg. & R. 69, 70 (1826).
In situations where the trial court has wrongfully convicted appellant of burglary and the offense which it was his intent to commit after the burglarious entry, and sentenced him on both, we have not talked of verdicts “unauthorized by the law” and awarded appellants new trials. Instead, we have merely vacated the lesser of the two sentences. See, e.g., Commonwealth v. Price, 258 Pa.Super. 625, 391 A.2d 696 (1978); Commonwealth v. Wilks, 250 Pa.Super. 182, 378 A.2d 887 (1977); Commonwealth v. Simmons, 233 Pa.Super. 547, 336 A.2d 624 (1975).

Id. 267 Pa.Super. at 602, 407 A.2d at 405. See also, Commonwealth v. Miller, 269 Pa.Super. 589, 410 A.2d 857 (1979).

2

Appellant argues that he should have been permitted to prove that he was too intoxicated to have the intent to commit burglary. This argument lacks merit. Section 308 of the Crimes Code provides:

Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense, except that evidence of such intoxication or drugged condition of ’the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.

18 Pa.C.S.A. § 308.

Appellant challenges the constitutionality of 18 C.P.S.A. § 308, but we may not address this argument, for as appellant failed to make it when before the trial court, it is waived. P.R.App.Pro. 302(a); Commonwealth v. Hawkins, 295 Pa.Super. 429, 441 A.2d 1308 (1982); Commonwealth v. Danko, 281 Pa.Super. 97, 421 A.2d 1165 (1980).

The judgment of sentence for indecent assault is vacated. The judgment of sentence for burglary is affirmed.


author: PER CURIAM:

text:
    465 A.2d 1024
    Charlotte T. SCHWARTZ, Appellant, v. Donald SCHWARTZ. Charlotte T. SCHWARTZ, Appellant, v. Donald SCHWARTZ.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1983.
    Filed Sept. 2, 1983.
    Allen N. Brunwasser, Pittsburgh, for appellant.
    Donald Schwartz, appellee, in propria persona.
    Before SPAETH, MONTEMURO and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from an order dated September 5, 1980 of the Court of Common Pleas of Allegheny County vacating a Protection from Abuse order which had been issued in accordance with the provisions found at 35 P.S. 10181 et seq. Unfortunately, we are unable to address the merits of appellant’s contentions as the record reveals a failure to enter the order on the lower court docket. Consequently, we lack jurisdiction. Commonwealth ex rel. Nixon v. Nixon, 312 Pa.Super. 313, 458 A.2d 976 (1983). Pa.R.A.P. 301(c).

This appeal is quashed.


author:
SPAETH, Judge:
      WIEAND, Judge,

text:
    465 A.2d 1025
    COMMONWEALTH of Pennsylvania v. Michael LLOYD, Appellant.
    Superior Court of Pennsylvania.
    Argued April 5, 1983.
    Filed Sept. 9, 1983.

      William H. Mitman, Jr., West Chester, for appellant.
    Eric Gavin Marttila, Assistant District Attorney, Doyles-town, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for robbery and related offenses. Appellant filed a motion in arrest of judgment or for a new trial, and later, a motion for a new trial based on after-discovered evidence. When the motions were called for argument the trial court dismissed them because appellant was a fugitive. Appellant was apprehended, and filed an application to reinstate the motions. Without ruling on the application to reinstate, the trial court imposed sentence. In its opinion in response to this appeal the court states that it denies the application to reinstate, and also, denies the motion in arrest of judgment or for a new trial and the motion for a new trial based on after-discovered evidence. However, the court had no power to deny either the application to reinstate the motions or the motions themselves, for this appeal had divested it of jurisdiction. Given the trial court’s failure to rule on the application to reinstate, we have concluded that we should rule on it. So ruling, we grant the application to reinstate the motions, vacate the judgment of sentence, and remand with instructions to the trial court to hear argument on the motion in arrest of judgment or for a new trial, and to hold a hearing on the motion for a new trial based on after-discovered evidence.

On January 23, 1981, a jury found appellant guilty of robbery and related offenses. On January 28 appellant filed a motion in arrest of judgment or for a new trial, and on July 17, a motion for new trial based upon after-discovered evidence. Meanwhile, on July 1, appellant had escaped from the county prison. On August 10, when appellant’s motions were called for argument, the trial court dismissed the motions on the ground that appellant was still a fugitive.

On September 19, 1981, appellant was apprehended and returned to prison, and on November 13 he filed an application to reinstate his motion in arrest of judgment or for a new trial and his motion for a new trial based on after-discovered evidence. The record discloses that the trial court failed to rule on the application to reinstate: the docket contains no entry of an order in response to the application; the record papers contain no such order; and from the transcript of the sentencing proceeding, it appears that no such order was announced from the bench. On March 15, 1982, without ever having ruled on the application to reinstate, the trial court sentenced appellant to 10 to 20 years in the state penitentiary. In its opinion in response to this appeal the court states for the first time that it denies appellant’s application to reinstate his motion in arrest of judgment or for a new trial and his motion for a new trial based on after-discovered evidence. Slip op. at 3. After referring to its earlier order dismissing the motions, on the ground that appellant was a fugitive, the court continues:

Assuming that it is still within our discretion to refuse to hear Defendant’s motions at this level, we deny Defendant’s petition [application to reinstate the motions]. Since we anticipate that the Superior Court might overturn this decision, we will proceed to the merits of the Post-Trial Motions.

Slip op. at 3.

The court then discusses the issues raised by the motions, and concludes its opinion by stating: “Accordingly, we deny all post-verdict motions.” Slip op. at 27.

We cannot accept this manner of proceeding. The trial court should not have sentenced appellant without first ruling upon the application to reinstate the motion in arrest of judgment or for a new trial and the motion for a new trial based on after-discovered evidence. The court’s initial dismissal of the motions, when they were called for argument, was proper, for appellant was then a fugitive. Commonwealth v. Albert, 260 Pa.Super. 20, 393 A.2d 991 (1978). However, when the application to reinstate the motions was filed, the issue became whether in a sound exercise of its discretion the trial court should grant the application to reinstate the motions so that they could be heard and a determination made whether appellant had been properly convicted. Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975); Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981). If the court had determined that the application to reinstate the motions should be denied, then it could have imposed sentence, and on appeal the issue would be whether in denying the application the court had exercised its discretion properly. If, on the other hand, the court had determined that the application to reinstate the motions should be granted, then it could have heard argument on the motion in arrest of judgment or for a new trial, and have held a hearing on the motion for a new trial based on after-discovered evidence. If after argument and hearing the court had concluded that the motions should be denied, it could have denied them and imposed sentence, and on appeal we could have reviewed the motions on their merits.

By proceeding to sentence appellant without first ruling on the application to reinstate the motions, the trial court has precluded appellate review of its decisions. It is true that the court says in its opinion that it has decided that the application to reinstate the motions should be denied. But that isn’t the sort of decision that we can review, for the court didn’t make it until after it had sentenced appellant and he had appealed. By then, the court had lost its jurisdiction to rule on the application to reinstate. It is also true that the court says in its opinion that it has decided that both the motion in arrest of judgment or for a new trial and the motion for a new trial based on after-discovered evidence should be denied. But neither is that the sort of decision that we can review, for it too wasn’t made until after sentencing and appeal, and therefore not until after the court had lost its jurisdiction to rule on the motions. (It may also be noted in this regard that, the matter of jurisdiction aside, the court had precluded itself from ruling on the motions: it had dismissed them, on the ground that appellant was a fugitive, and had never reinstated them.) See Pa.R.App.P. 1701(a) (“[Ajfter an appeal is taken ... the trial court ... may no longer proceed further in the matter.”) See also, Comment to Pa.R.Crim.P. 1123 (“Post-verdict motions must be decided before sentencing, because the appeal lies from the final order of the trial court, which ordinarily includes sentence.”) and Comment to Pa.R.Crim.P. 1405 (“The sentencing proceeding should not take place until all post-verdict motions have been disposed of,____”)

This state of the record does not, however, entirely disable us. We may ourselves rule on appellant’s application to reinstate his motion in arrest of judgment or for a new trial and his motion for a new trial based on after-discovered evidence. Commonwealth v. Borden, 256 Pa.Super. 125, 389 A.2d 633 (1978) (petition for leave to refile post-verdict motions nunc pro tunc considered and granted).

In ruling on appellant’s application to reinstate his motions, we may start by noting that this is a case of some gravity: appellant has been sentenced to 10 to 20 years in prison. While this is of course not dispositive, still, the graver the case, the greater the interest in deciding whether the conviction was proper. Certainly one may forfeit his right to a review of his conviction, and by becoming a fugitive, appellant did forfeit it. However, appellant was apprehended and returned to the jurisdiction shortly after he became a fugitive, and his application to reinstate his motions seeking reversal of his conviction was filed promptly after his return and before he was sentenced. Moreover, the motions raise serious issues, in particular, perhaps, the motion for a new trial based on after-discovered evidence, in which appellant alleges that the principal witness against him at his trial later testified at the trial of another case that appellant had not committed the robbery for which he had been convicted but that another man had. And finally, since appellant is no longer a fugitive he is responsive to whatever orders may be entered on his motions. In these circumstances we have concluded, as we have in comparable cases, that it is “not an injudicious exercise of our discretion”, Commonwealth v. Borden, supra, 256 Pa.Superior Ct. at 127, 389 A.2d at 634, to grant appellant’s application to reinstate his motions. And see Commonwealth v. Galloway, supra; Commonwealth v. Harrison, supra. We therefore enter the following order:

Appellant’s application to reinstate his motion in arrest of judgment or for a new trial and his motion for a new trial based on after-discovered evidence is granted; the judgment of sentence is vacated; and the case is remanded with instructions to the trial court to hear argument on appellant’s motion in arrest of judgment or for a new trial, and to hold a hearing on his motion for a new trial based on after-discovered evidence. Jurisdiction relinquished.

WIEAND, J., files a concurring and dissenting statement.

WIEAND, Judge,

concurring and dissenting:

I agree with the majority that this matter should be remanded for an evidentiary hearing on appellant’s motion for new trial based on after-discovered evidence. However, I disagree with the majority’s decision to vacate the judgment of sentence and reinstate appellant’s motion in arrest of judgment and his motion for new trial based on alleged trial errors.


author: CAVANAUGH, Judge:

text:
    465 A.2d 1028
    COMMONWEALTH of Pennsylvania, Appellant v. Phillip YORK, Jr., Appellant
    (1687 Oct. 1979).
    (1718 Oct. 1979).
    Superior Court of Pennsylvania.
    Argued June 9, 1980.
    Filed Sept. 9, 1983.

      David M. McGlaughlin, Assistant District Attorney, Nor-ristown, for Commonwealth, appellant (at No. 1687) and for Commonwealth, appellee (at No. 1718).
    Martin King, New Hope, for appellant (at No. 1718) and for appellee (at No. 1687).
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

This is an appeal and cross appeal of a suppression order issued by the Court of Common Pleas, Montgomery County. The Commonwealth appeals from the lower court’s suppression order granting appellee’s motion to suppress all of the testimony of Pennsylvania State Police Agent Denise Duez, who was an undercover police officer in the case, and the testimony of Jeffery Knoll, an alleged co-conspirator in this matter. In addition the defendant, Phillip York, filed a cross appeal claiming that the charges should be dismissed with prejudice. For the reasons discussed below, we reverse the suppression order of the lower court and remand for trial.

The initial issue to be determined is whether the suppression order is appealable. This court recently stated in Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983) that “[wjhen confronted with a Commonwealth appeal from an order suppressing evidence, we must first determine for ourselves whether the order is appealable— whether it terminates or substantially handicaps the prosecution; and we must make that determination on the basis of the record, and on that basis alone.” Applying the test to this case we conclude that the suppression order is appealable. The appellee was charged with various drug offenses. Based upon our review of the record it is apparent the Commonwealth would be at least substantially-handicapped without the testimony of Agent Duez and alleged coconspirator Jeffery Knoll. The testimony of Agent Duez and Jeffery Knoll is vital and necessary for the prosecution to prove the substance and character of the charges against the appellee.

The facts giving rise to the case at hand are as follows. During the fall of 1978, Pennsylvania State Police Agent Denise Duez was acting as an undercover agent for the Region One Strike Force making various purchases of alleged controlled substances. During the course of this undercover work the appellee was arrested and charged with the aforementioned crimes in conjunction with four transactions.

The crux of this appeal is based upon an investigative technique employed by Agent Duez. She would record oh a cassette tape all of the details she had memorized from the course of a transaction. She would do this immediately following the completion of a purchase. In turn, within one day to one week later she would use these personal narratives in the preparation of her official written report. Subsequently she would tape over the same recordings with the consequence of erasing the previously recorded notes relating to other transactions. At the preliminary hearing, as well as the suppression hearing, Agent Duez did not have a comprehensive recollection of all the details surrounding the events leading to appellee’s arrest. Therefore she found it necessary to rely upon the previously mentioned written police reports. Agent Duez admitted that in making her official report she included only the details from her taped notes which she determined were relevant to the transaction. She also testified that she had included in her tape recorded notes impressions of her interactions with alleged co-conspirator, Jeffery Knoll, who was scheduled to testify as a witness for the prosecution.

The lower court ruled at the suppression hearing that Agent Duez’s testimony as well as that of Jeffery Knoll should be suppressed. The lower court based it’s opinion and subsequent order on the theory espoused by appellee, that Agent Duez’s action of destroying her tape recorded notes was a complete usurpation of a judicial function in deciding what is admissible and that defense counsel would be severely hindered in their cross examination of Commonwealth witnesses due to their inability to review Agent Duez’s tape recorded notes. The appellant claims the lower court erred in suppressing all of the testimony of Agent Duez and Jeffery Knoll. Appellee contends the lower court properly found a violation of his right to due process as well as other constitutional rights. Appellant makes the threshold contention that the written reports of' Agent Duez are not discoverable regardless of how they were prepared. Pennsylvania Rule of Criminal Procedure 305 governs the area of pre-trial discovery. Though it might be argued to the contrary, in applying Pa.R.Crim.P. 305 to the instant facts, we can see no specific requirement that a police officer’s official report or taped notes is discoverable by the defense. However, the duty to preserve evidence and its admissibility at trial is not determined by its discoverability. Evidence which may not be the subject of discovery may be relevant at trial. Therefore, the present issue cannot be decided on the basis of discoverability.

Both appellant and appellee in their respective arguments rely upon a series of federal cases which address the issues of the suppression and destruction of potential evidence. U.S. v. Harris, 543 F.2d 1247 (9th Cir.1976); U.S. v. Harrison, 524 F.2d 421 (D.C.Cir.1975); U.S. v. Bryant, 448 F.2d 1182 (D.C.Cir.1971). The courts in determining a remedy in these cases have primarily based their holding on a conclusion that the destruction or suppression was a violation of the Jencks Act, a federal statute, 18 U.S.C. § 3500 and/or Federal Rule of Criminal Procedure 16. U.S. v. Harris, supra; U.S. v. Harrison, supra; U.S. v. Bryant, supra. The aforementioned Act, Rule and cases decided thereunder are not binding in our Commonwealth. The federal rule is not of constitutional dimension and does not bind the states U.S. v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969).

Nor do we agree with appellee’s contention that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) requires that the testimony be suppressed. In order to prevail on a claimed violation of Brady and its progeny proof is required of each of the following: “(a) suppression by the prosecution after a request by the defense; (b) evidence’s favorable character for the defense; and (c) the materiality of the evidence.” Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 rehearing denied, 409 U.S. 897, 93 S.Ct. 87, 34 L.Ed.2d 155 (1972). See also, Commonwealth v. Wallace, 500 Pa. 270, 274-75, 455 A.2d 1187, 1189 (1982).

In the instant matter there is no evidence that the prosecutor suppressed or destroyed the tapes. On the contrary, testimony from the suppression hearing reveals that Agent Duez obliterated the tapes by using them for further recording. Moreover, there is no evidence that it was done in bad faith and the prosecution never had a chance to see it much less suppress it. In Commonwealth v. Giles, 500 Pa. 413, 456 A.2d 1356 (1983) our Supreme Court found no Brady violation when it was shown that the “police 48” a preliminary recording of information by police following an incident, was mislaid before it was ever in the possession of the prosecutor.

In the instant matter while we cannot approve the procedure by Agent Duez which erased her recorded impressions, we do not agree that the action taken by the lower court was appropriate. Appellee’s right or opportunity to cross-examine the witnesses is not so severely affected by the absence of the tapes as to warrant the harsh sanction of the witnesses’ suppression. Appellee still has the chance to fully cross-examine the witness regarding her recollections of the events giving rise to the arrest. Appellee can scrutinize Agent Duez’s official report in any aspect, as to its contents and compilation, and explore the effect of the destruction of the tapes on the witnesses’ credibility. The credibility of a witness is within the sole province of the finder of fact. Commonwealth v. Kennerly, 269 Pa.Super. 404, 410 A.2d 319 (1979).

The lower court in its opinion referred to “accounts of interviews” by Agent Duez with Jeffery Knoll which were included in Agent Duez’s tape recorded notes. This statement of fact is not supported by the record in this case. The record contains no testimony that Agent Duez actually interviewed appellee or Jeffery Knoll. The record only reflects that Agent Duez had tape recorded her initial impressions as to the alleged drug transactions with appel-lee and Jeffery Knoll. For the reasons stated above we cannot agree that the appellee had been hindered or limited in cross-examining Jeffery Knoll to the degree that the testimony of Knoll should be suppressed because of the possible value that Duez’s recorded impressions may have in his cross-examination.

We have determined that the issue raised by York in his cross-appeal has been waived. He contends that if any error was committed by the lower court it was in restricting his remedy to. suppression. He alleges that Agent Duez’s unsuccessful action of attempting to interview York, after bis arrest, without the presence of counsel constituted a willful and bad faith violation of the attorney-client relationship. The lower court noted in its findings that it was shocked by the agent’s conduct and such conduct could well be called a “deliberate attempt to destroy the attorney-client relationship.” York now claims that this intentional bad faith conduct requires that the charges be dismissed with prejudice.

We do not reach the merits of this issue because York did not preserve it for the purpose of appeal in accordance with Pa.R.Crim.P. 306(e), which reads as follows:

Rule 306. Omnibus Pretrial Motion for Relief
(e) All grounds for the relief demanded shall be stated in the motion and failure to state a ground shall constitute a waiver thereof

York did not present this contention in his Ominibus Pretrial Motion for Relief. The doctrine of waiver has become' firmly entrenched in Pennsylvania law and it is clear that on appeal a new and different theory of relief may not be successfully advanced for the first time on appeal. Morgan v. Sbarbaro, 307 Pa.Super. 308, 453 A.2d 598 (1983).

Order reversed, case remanded. We relinquish jurisdiction.

      . Phillip York is the appellant in the cross appeal. Hereinafter we will refer to York as appellee for the sake of clarity.

      . The decision in this case was held pending the disposition in Commonwealth v. Lapia, supra.

      . The appellee was charged with four separate violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.S.A. § 780-113(a)(6), (30) and Criminal Conspiracy, 18 Pa.C.S.A. § 903.

      . Appellee specifically proposed the following arguments:
      (a) By unilaterally destroying the tape recorded transcriptions made when her recollection was fresh and by subjectively determining what was “relative” to the prosecution, the Agent usurped the trial court’s function of an in camera review of the evidence and the determination of admissibility
      (b) Law enforcement authorities have destroyed a substantial means of challenging the credibility of Commonwealth witnesses and the only means of the court verifying the representations of the contents of the notes therefore the Commonwealth cannot complain of the remedy fashioned by the court.
      (c) Due to the destruction of the tapes there is no requirement that the defendant show prejudice.

      . See for example Pa.R.Crim.Pro 305(B)(1)(a).


text:
    465 A.2d 1032
    Thomas E. MYERS v. COMMERCIAL UNION ASSURANCE COMPANIES, Nicel Industries, Inc., the Travelers Insurance Companies, Bradley A. Miller, and the City of McKeesport. Appeal of COMMERCIAL UNION ASSURANCE COMPANIES and Nicel Industries, Inc. Appeal of TRAVELERS INSURANCE COMPANIES The TRAVELERS INSURANCE COMPANIES, Appellant, v. COMMERCIAL UNION ASSURANCE COMPANIES.
    (No. 205)
    (No. 114)
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1982.
    Filed Sept. 9, 1983.
    Petition for Allowance of Appeal Granted & Denied Jan. 19, 1984.

      William K. Herrington, Pittsburgh, for appellant (at Nos. 114 and 115) and appellee (at No. 205).
    Jeffrey S. Weiss, Pittsburgh, for Myers, appellee (at Nos. 114 & 205).
    Fred C. Trenor, Louis C. Long, Pittsburgh, for appellant (at No. 205) and for appellee (at Nos. 114 and 115).
    Before CAVANAUGH, ROWLEY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

This appeal involves declaratory judgment proceedings and an equity action which were consolidated in the court below and heard as a case stated. Thomas E. Myers is an Illinois resident who was seriously injured in a motor vehicle accident in McKeesport, Allegheny County, Pennsylvania, on December 7, 1978. The vehicle in which Mr. Myers was a passenger was operated by Bradley A. Miller. Myers was a carpenter who had been sent to Munhall, Pennsylvania, by his employer, Nicel Industries, Inc., to supervise the installation of chalk boards at the Steel Valley High School. On the day of the accident, he worked at the job site and then left with another carpenter, Bradley A. Miller, who drove Myers to various car rental agencies in an attempt to rent a car for Myers. It was while engaged in this activity that the vehicle being operated by Miller collided with a pole. As a result of the accident, Myers sustained permanent damage to his spinal cord resulting in paralysis.

Mr. Myers sought workmen’s compensation benefits in Illinois where he was employed and ultimately received an award which is being paid by the Commercial Union Assurance Companies, the workmen’s compensation carrier for Nicel Industries. Travelers Insurance Companies was the insurer on the automobile insurance policy issued to Mr. Miller and that company paid almost $75,000 for medical bills under the basic loss provisions of the Pennsylvania No-Fault Act. Travelers Insurance Companies also paid $250,000 in settlement of a claim which Mr. Myers made against Mr. Miller for his non economic loss.

Mr. Myers’ petition for declaratory judgment sought an adjudication of the rights of the various parties in the controversy, namely Thomas E. Myers, Commercial Union Assurance Companies, Nicel Industries, Inc., The Travelers Insurance Companies, Bradley A. Miller and the City of McKeesport. Subsequently, Travelers Insurance Companies, as the no-fault carrier, filed a complaint in equity seeking reimbursement from the workmen’s compensation carrier, Commercial Union, of $81,587.29 consisting of its payments to Mr. Myers for medical expenses and work loss benefits. Commercial Union sought subrogation of the workmen’s compensation benefits it paid from the settlement that Myers received from Travelers Insurance for non economic loss. The court below dismissed the claims of both insurance carriers. The appeals do not involve an adjudication of any rights of Mr. Myers against the City of McKeesport as that action is still pending.

Commercial Union, to the extent of workmen’s compensation benefits paid to Myers, seeks subrogation from Myers’ settlement with Travelers for non economic loss. The answer to this complex question depends on whether we apply Pennsylvania’s No-fault Motor Vehicle Insurance Act, Act of July 19, 1974 P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. or the law of Illinois which does not have a no-fault act. In a more simplistic legal era, the law of the place where the accident occurred would prevail. Today, in determining what law applies in a conflict of law situation we are governed by Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). That case abandoned the strict lex loci delicti rule which had been the law in Pennsylvania. Under Griffith the law of the state which has the most significant relationship with the parties should be applied. Contacts considered vital in determining the state with the most significant relationship include place of the injury, domicile of the parties, and the place where the relationship between the parties is centered. Under the flexible contacts methodology applied in Griffith, we believe that Illinois had the most significant contacts with the workmen’s compensation aspect of the case. Mr. Myers, a resident of Illinois obtained workmen’s compensation benefits from Commercial Union Assurance Companies which was the workmen’s compensation carrier for his employer. Myers’ employer was also domiciled in Illinois and he was in Pennsylvania on a temporary sojourn on his employer’s behalf. This case is multifaceted but all of the contacts vis a vis workmen’s compensation were in Illinois. The fact that the accident occurred in Pennsylvania is of relatively slight significance, if any at all, with respect to the workmen’s compensation aspects of the case.

In Elston v. Industrial Lift Truck, Co., 420 Pa. 97, 216 A.2d 318 (1966), William Elston, a Pennsylvania resident was injured in New Jersey while working at the plant of his employer, Hussman Refrigerator Company, in Haddonfield, New Jersey. He received workmen’s benefits under New Jersey law. Subsequently, Elston sued industrial Lift Truck Company, Inc. in Pennsylvania as a third party tortfeasor. Industrial sought to join Hussman as an additional defendant. This was not permitted under New Jersey law and the court below granted Hussman’s motion for judgment on the pleadings. This was affirmed by our Supreme Court which held that the sole issue was choice of law and that the law of New Jersey was properly applied. New Jersey law was in accord with the prevailing notion of insulating a statutory employer from contribution, as distinguished from Pennsylvania law. As stated at 420 Pa. 109, 110, 216 A.2d 323:

In the instant case, however, Industrial, the party asserting a right to contribution, is a stranger to the compensation system. And, in a narrow sense, unlike an employee covered by New Jersey’s compensation program, it received no quid pro quo from that state to compensate for the loss of its right to contribution. This factor, though, does not alter or in any way weaken the crucial consideration that New Jersey has the paramount interest in the manner by which its workmen’s compensation program will be administered. New Jersey has undertaken to define the obligations of an employer for injuries to his employees and makes that obligation the exclusive liability of the employer. (Emphasis added).

In Goodemote v. Mushroom Transportation Company, Inc., 427 F.2d 285 (3rd Cir.1970) the plaintiff, a New York resident, sued Mushroom Transportation Company, Inc., a Pennsylvania corporation, in the district court for the Eastern District of Pennsylvania. The compensation carrier for the plaintiff’s employer paid benefits to the plaintiff under New York law. The plaintiff settled with the alleged tort-feasor and under New York workmen’s compensation law the compensation carrier was entitled to reimbursement, after certain payments were made. The court followed Elston v. Industrial Lift Truck Co., supra, and found that New York had the most significant contacts, stating at 427 F.2d 287:

Adopting the Elston approach here, we can find no Pennsylvania policy which would justify the application of its law to this issue. On the contrary, we think all the relevant factors indicate the paramount nature of New York’s interest. Plaintiff, rather than his counsel, is the real party in interest. He is a New York resident. His employment was covered by the New York Workmen’s Compensation Law. (Emphasis added).

Colombo v. Republic Steel Corp., 448 F.Supp. 833 (W.D. Pa.1978) also involved a choice of law problem. The plaintiff resided in New York and received workmen’s benefits in that state. His employer was also located in New York. The plaintiff was injured while working in Pennsylvania. The issue was whether the plaintiff’s employer was liable to the original defendant for contribution or indemnity. The district court stated at 448 F.Supp. 834:

Having weighed the interests of both New York and Pennsylvania in having their diametrically opposed workmen’s compensation provisions with respect to employer contribution or indemnity applied herein, and relying on the overriding emphasis accorded to the state from which a plaintiff in such cases elects to receive workmen’s compensation found in Elston and Goodemote v. Mushroom Transportation Co., 427 F.2d 285 (3d Cir.1970), this Court holds that since plaintiff has elected to receive benefits from his home state, New York, that state has the paramount interest in controlling the administration of its workmen’s compensation program.

In Lewis v. Chemetron Corp., 448 F.Supp. 211 (W.D.Pa. 1978) the plaintiff was injured in Pennsylvania while employed by Eazor Express Company in Ohio as a truck driver. The plaintiff resided in Pennsylvania. He obtained workmen’s compensation benefits under the Ohio workmen’s compensation system. The plaintiff sued Chemetron in the United States District Court for Western Pennsylvania claiming negligence on the part of Chemetron’s employees while loading the truck. Chemetron sought to join Eazor as a third party defendant. The court granted Ea-zor’s motion for summary judgment noting that while several states were factually involved in the case “Ohio, where Mr. Lewis is employed, is a state under whose workmen’s compensation system the plaintiffs have received benefits.” 448 F.Supp. at 213. The court further stated at 448 F.Supp. 213:

The law does not require us to apply the law of the state whose contacts are the most numerous, but rather demands a sensitivity to the relative importance of each of the several contacts to the substantive policy of workmen’s compensation. Our efforts to assign weights to the variety of contacts presented here are guided by the analysis of the Pennsylvania Supreme Court in Elston v. Industrial Lift Truck, 420 Pa. 97, 216 A.2d 318 [1966], which this Court followed in Madrin v. Wareham, 344 F.Supp. 166 [W.D.Pa.1972]. (Emphasis added).

As far as workmen’s compensation benefits and subrogation under the workmen’s compensation act are involved, the law of Illinois under which the benefits were paid has the most significance. If Pennsylvania’s no-fault motor vehicle act were applied, Commercial Union Assurance Companies would be entitled to subrogation from the settlement fund of $250,000 of amounts paid to Myers by way of workmen’s compensation, to the extent of the compensation carrier’s contribution over and above its contribution to the first $15,000.00 of work loss compensation. Vespaziani v. Insana, 501 Pa. 612, 462 A.2d 669 (1983) reversing this court’s opinion in Vespaziani v. Insana, 293 Pa.Super. 117, 437 A.2d 1234 (1981) We must remember that absent the Pennsylvania No-Fault Motor Vehicle Insurance Act, full subrogation would be permitted. The Pennsylvania Workmen’s Compensation Act provides in 77 P.S. § 671:

“[wjhere the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer ____”

It is basic in Pennsylvania that if an employer’s liability is occasioned by the fault of a third person, the employer may pursue its subrogation rights under the Workmen’s Compensation Act. See Fashion Hosiery Shops v. Workmen’s Compensation Appeal Board, 55 Pa.Commw. 465, 423 A.2d 792 (1980). The law in Pennsylvania as far as subrogation is concerned has been modified by the no-fault act. In Illinois, which does not have a no-fault motor vehicle act, the employer or his workmen’s compensation carrier has a right to subrogation of amounts paid by way of workmen’s compensation where the employee recovers from a third party tortfeasor. The Illinois Workmen’s Compensation Act provides at 48 Ill.Anno.St. 138.5(b):

Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee, or personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative, there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to Paragraph (a) of Section 8 of this Act. (Emphasis added).

There is no basis for concluding that because the accident occurred in Pennsylvania that the Pennsylvania no-fault act should extend to Illinois’ system of administering workmen’s compensation benefits. Appellee argues that Elston v. Industrial Lift Truck, supra, and Goodemote v. Mushroom Transportation, Inc., supra, have no relevance because they were decided prior to the enactment of the Pennsylvania No-Fault Motor Vehicle Insurance Act. This argument misses the point. The question is whether the law of Illinois or Pennsylvania applies. Clearly, no-fault in Pennsylvania has changed the law of subrogation as to cases in which the Pennsylvania No-Fault Act applies, but we have determined that as to the subrogation aspect of this appeal, the state of Illinois has the most significant contacts. Accordingly, Commercial Union Assurance Companies is entitled to subrogation from Myers.

The second issue we must deal with is the claim of Travelers Insurance Companies for reimbursement from Commercial Union Assurance Companies for medical expenses paid by Travelers to Mr. Myers. This is the question involved in Appeal No. 115 Pittsburgh 1982. The court below found for Commercial Union and we agree that its decision with respect to this phase of the case was correct. The basis of Travelers’ claim for reimbursement is section 106 of the No-Fault Act, 40 P.S. § 1009.106(a)(3) which states:

(3) A claim for no-fault benefits shall be paid without deduction for the benefits or advantages which are to be subtracted from loss in calculating net loss if such benefits or advantages have not been paid or provided to such claimant prior to the date the no-fault benefits are overdue or the no-fault benefits claim is paid. The obligor is thereupon entitled to recover reimbursemnt from the person obligated to pay or provide such benefits or advantages or from the claimant who actually receives them.

In the instant case, Commercial Union, the workmen’s compensation carrier for Nicel Industries initially denied coverage until its liability was determined by the workmen’s compensation board in Illinois. In the meantime, the no-fault insurance carrier for Mr. Miller, Travelers Insurance Companies, paid Mr. Myers’ medical bills in the amount of almost $75,000 under the basic loss provisions of the no-fault act. We are now confronted with a dispute between the no-fault carrier and the workmen’s compensation carrier. The court below determined that Section 106 of the no-fault act deals with the question of a primary obligor with respect to no-fault carriers. It stated that “while this is a case of first impression, and no cases have been cited to us, we feel that section 106 applies to the priority as between no-fault carriers and not as to priority with any other insurers.” We do not believe it is necessary to reach this conclusion, and prefer to limit our decision to the issue before us as to whether this section applies to claims for reimbursement involving a workmen’s compensation carrier which has paid benefits in another state in accordance with the law of that state. There are no cases under the no-fault act to guide us in interpreting Section 106 in this respect and the act itself does not provide us with a very bright light with which to find our way. However, following our earlier analysis concerning workmen’s compensation we conclude that any claim against the workmen’s compensation carrier shall be governed by the law of Illinois, the state with the most significant contacts with workmen’s compensation questions. Travelers Insurance Companies seeks reimbursement solely on the basis of the Pennsylvania No-Fault Act which in the circumstances of this case does not apply to benefits paid by the compensation carrier of an Illinois employer to an Illinois employee. The claim, therefore, must fail.

In appeals 114 Pittsburgh 1982 and 205 Pittsburgh 1982, the judgment for Thomas E. Myers is reversed and judgment is entered in favor of Commercial Union Assurance Companies. In Appeal No. 115 Pittsburgh 1982 judgment is affirmed.

      . In the court below, Thomas Myers filed a declaratory judgment action against Commercial Union Assurance Companies, Nicel Industries, Inc., The Travelers Insurance Companies, Bradley A. Miller and the City of McKeesport at GD 80-02731 in the Court of Common Pleas of Allegheny County. Subsequently, Travelers Insurance Companies filed a complaint in equity against Commercial Union Assurance Companies at GD 80-8732 in the Court of Common Pleas of Allegheny County. Both actions were consolidated in the court below. The action against the City of McKeesport is still pending.

      . The Supreme Court stated in Vespaziani v. Insana, supra, 501 Pa. at 619-20, 462 A.2d at 673:
      Accordingly, we hold that the subrogation claim of the workmen's compensation carrier is negated to the extent of those benefits paid by the workmen’s compensation carrier which constitute a contribution toward the compensation of the first $15,000.00 of work loss sustained. Beyond the workmen’s compensation carrier’s contribution toward this first $15,000 of compensation, the subrogation claim for recovery of benefits payable has not been affected by the No-Fault Act.

      . It is not intended under the Pennsylvania No-Fault Act to give double reimbursement for items paid under the Workmen's Compensation Act. As pointed out in Shrager “The Pennsylvania No-Fault Motor Vehicle Insurance Act”, pages 145-146:
      Thus, if an injured claimant is eligible to receive Workmen’s Compensation, Medicare, or other governmental benefits, but they have not yet been paid, he is entitled to full payment of his no-fault claim. No deduction may be made for the expectancy of payment of governmental benefits. The obligor who has provided full no-fault compensation to the claimant is entitled to reimbursement from the party obligated to pay or provide such benefits, or from the claimant after he has actually received them. (Emphasis Added)