author:
      CERCONE, Judge:
      WIEAND, Judge,

text:
    524 A.2d 942
    COMMONWEALTH of Pennsylvania v. Grover TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1986.
    Filed April 23, 1987.

      Michael N. Borish, Philadelphia, for appellant.
    JoAnn M. Verrier, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from judgment of sentence imposed for convictions of robbery, aggravated assault and possessing instruments of crime.

On March 17, 1983, the appellant, Grover Taylor, gained admittance to the apartment of Laura Jean Antonowicz, with whom he was acquainted, under the pretext that he would go to the store for her on an errand. As Ms. Antonowicz turned toward her bedroom to get money for appellant, he approached her from the rear and pulled an electrical cord around her neck. The victim passed out and fell to the floor.

Appellant then got on top of the victim, locked her head between his knees, and stabbed and cut her repeatedly with a knife. When the knife broke in the course of his attack, appellant continued his onslaught first with a pair of scissors, and finally with an ice pick. Ms. Antonowicz, who was in and out of consciousness during this attack, suffered serious disfiguring lacerations of the face, neck, chest and wrist, as well as multiple puncture-type wounds to her chest, breasts, abdomen, genital area and thighs. She was taken to the hospital after being found by a friend.

When the victim’s boyfriend, Louis Carbo, Jr., went to the apartment later that day, he found the icepick and electrical cord in the bedroom. The victim’s jewelry box was missing and a camera which belonged to Carbo had been taken and was later returned to him by the man with whom appellant resided. Additionally, the victim later discovered that the gold chains that she had been wearing at the time of the attack had also been taken.

Appellant, whom the victim identified as her assailant, was arrested five days after the attack in the home of his father where he was found crouching in a pile of clothing in a closet. When he was told that he was under arrest and the charges were being explained, appellant blurted out, “Yeah, I did it, but I’m not the only one that’s going to go to jail for it.”

After a trial by jury in April of 1984, appellant was convicted of robbery, aggravated assault, and possessing instruments of crime. Post-trial motions were denied, and appellant was sentenced to ten to twenty years on the robbery count, five to ten years on the aggravated assault charge and two and one-half to five years on the charge of possessing instruments of crime. All sentences were to be served consecutively.

Appellant’s initial argument is that his inculpatory statement to police after his arrest should have been suppressed on the ground that he was not arraigned within six hours of his arrest. In Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), the Pennsylvania Supreme Court promulgated a rule that when an accused is not arraigned within six hours of arrest, any statements obtained after arrest but before arraignment are generally not admissible at trial. Appellant was arrested in Camden, New Jersey at 11:50 a.m. on March 21, 1983. After clearing his transfer to Philadelphia with Camden authorities, the arresting officers transported him to the South Detective Division in Philadelphia at 5:05 p.m. Sometime thereafter, the Youth Study Center was notified of appellant’s arrest, and later informed the officers that appellant should be kept in custody due to his significant prior record. The appellant was ultimately transferred to the Youth Study Center, although the time of this transfer is not clear from the record. The parties agree that appellant was not arraigned within six hours of his arrest although the record is unclear as to the exact time of arraignment.

Although appellant was not arraigned within six hours of arrest, the development of the law since Davenport was decided demonstrates that this is not the only factor to be considered. In Commonwealth v. Lewis, 350 Pa.Superior Ct. 595, 504 A.2d 1310 (1986) this court, en banc, held that absent police coercion, any “blurt out” by an accused shall be admissible at trial despite a delay of more than six hours between the time of arrest and arraignment where the “blurt out” is unrelated to the illegal detention. Although he was detained for more than six hours before his arraignment, it is undisputed that appellant uttered an inculpatory remark without questioning or provocation soon after his arrest. We therefore find that the illegality of the detention was unrelated to the “blurt out.” As in Lewis, appellant’s remarks were not induced by police inquiry or other official action; rather, the statement was made as a voluntary and spontaneous act of free will. We therefore affirm the denial of the suppression motion.

Appellant’s next argument is that the trial court erred in admitting into evidence the victim’s bloodied and puncture-marked jeans, because this evidence was inflammatory and prejudicial. A decision as to the admissibility of demonstrative evidence such as this is a matter within the discretion of the trial judge, and only an abuse of that discretion will constitute reversible error. Commonwealth v. Frederick, 327 Pa.Superior Ct. 199, 475 A.2d 754 (1984).

The trial judge must initially decide whether the evidence possesses inflammatory characteristics. If the court decides the evidence is not objectionable the evidence is admissible subject to the qualification of relevance. If the evidence is deemed inflammatory, then the trial judge must decide whether its probative value outweighs the likelihood that it will inflame the passion of the jurors. Id.

We agree with the Commonwealth’s assertion that the victim’s jeans were admissible as an indication of the brutality of the attack in order to establish the elements of aggravated assault. In Commonwealth v. McClain, 325 Pa.Superior Ct. 29, 472 A.2d 630 (1984) a panel of this court found that there was no abuse of discretion in admitting into evidence two color photographs of the victim’s face for the purpose of proving the attempt to cause serious bodily injury, an element of aggravated assault. In Commonwealth v. Dockins, 324 Pa.Superior Ct. 305, 471 A.2d 851 (1984) this court held that the victim’s bloody clothing was admissible to aid in establishing the nature of the crime and the intent of the defendant.

Appellant argues that the victim’s testimony and the medical records were adequate to prove the nature and location of the wounds; however, in Commonwealth v. McClain, supra, 325 Pa.Superior Ct. at 37, 472 A.2d at 634 this court approved the trial court’s reasoning that the allegedly prejudicial evidence would “better convey to the jury the injuries received than the clinical comments of an Emergency Room doctor.”

For the foregoing reasons, we conclude that the probative value of the victim’s jeans was not outweighed by the possible prejudicial effect of their admission.

Appellant’s third argument is that there was insufficient evidence to support the robbery conviction. This issue has not been properly preserved for review as it was raised in post-verdict motions in “boilerplate” fashion. In Commonwealth v. Holmes, 315 Pa.Superior Ct. 256, 461 A.2d 1268 (1983) this court held that a post-verdict motion must specify in what respect the evidence was insufficient to support the verdict. Appellant’s post-verdict motion stated in conclusory terms that the court erred in denying the defense demurrer and the motion for a directed verdict and that the Commonwealth failed to prove the elements of robbery beyond a reasonable doubt. The appellant did not specify why he should have been granted a demurrer or directed verdict, or which elements of the crime were not established. Therefore, in accordance with Holmes, supra we find this issue to be waived.

Appellant also contends that the prosecutor’s comment during closing arguments regarding appellant’s failure to produce a certain witness constituted prosecutorial misconduct warranting a new trial. While comments which cause the jury to draw adverse inferences from the absence of a witness are often improper, see e.g., Commonwealth v. Brown, 492 Pa. 320, 424 A.2d 1211 (1981), the record clearly indicates that the prosecutor’s statement was made in direct response to the closing comments of appellant’s counsel. Appellant’s counsel stated;

Is Jimmy Mr. Lester? Where is Jimmy? Why didn’t he come in here and say T am Jimmy. My name is James Lester. Grover Taylor lived with me. He gave me the camera. I gave it to Carbo.’

During her closing argument, the prosecutor responded,

“Where’s James Lester? Where is Jimmy? He was living with Grover. The Commonwealth is supposed to put him on?”

This issue was addressed by the Pennsylvania Supreme Court in Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984). There the Court held that a prosecutor’s remarks during summation which drew attention to the absence of testimony by a certain individual, were not cause for reversal when the remarks were inspired by defense counsel’s own statement which initially drew attention to the absence of that testimony, and implied that the jury should draw an inference favorable to the defendant. We find that the Floyd case is dispositive of this issue, and therefore, reject appellant’s argument.

Appellant’s fifth argument is that for sentencing purposes, his conviction of aggravated assault should have been merged with the robbery conviction. Appellant was sentenced to prison terms of ten to twenty years on the robbery conviction and five to ten years on the aggravated assault conviction, to be served consecutively. Appellant argues that these sentences should have been merged, thereby reducing the sentences for these crimes from fifteen to thirty years to ten to twenty years.

In Commonwealth v. Williams, 344 Pa.Superior Ct. 108, 496 A.2d 31 (1985), an en banc panel of this court reconsidered the common law doctrine of merger. The court stated that to determine whether merger should occur, a court must first determine whether the separate statutory offenses arose out of the same criminal act, transaction or episode. When courts decide under the merger doctrine that two crimes “necessarily involve” one another, it does not always mean that all the elements of one crime are included in the other. It means that on the facts of the case the two crimes were so intimately bound up in the same wrongful act that as a practical matter, proof of one crime necessarily proves the other, so that they must be treated as the same offense. Commonwealth v. Williams, supra, 344 Pa.Superior Ct. at 125, 496 A.2d at 40.

If the criminal conduct arose out of a single criminal act, then the court must determine whether the statutes defining the crimes charged were directed to substantially the same harm or evil. Commonwealth v. Williams, id., 344 Pa.Superior Ct. at 127, 496 A.2d at 42. Therefore, even if the criminal conduct consisted of only a single criminal act, the separate statutory offenses do not merge if the Commonwealth has substantially different interests at stake and each is injured by the defendant’s single act. Summarized, the proper rule of merger is that “an individual can be punished only once for a single act which causes only one injury to the Commonwealth.” Commonwealth v. Williams, supra, 344 Pa.Superior Ct. at 138, 496 A.2d at 47, quoting Commonwealth v. Schilling, 288 Pa.Superior Ct. 359, 370, 431 A.2d 1088, 1093 (1981).

The test for merger, as stated above, is a “flexible, fact-based tool for determining how many offenses against the Commonwealth have actually been committed ... [T]he question of merger will often turn on an appraisal of the precise facts of the case.” Commonwealth v. Williams, supra 344 Pa.Super. at 143, 496 A.2d at 50. The facts underlying the convictions of aggravated assault and robbery have already been set forth.

As pointed out in Williams, a robbery can be carried out by the infliction of serious injury, but it can also be accomplished by mere threats of force or simple assault. The brutality and heinous nature of the appellant’s violent attack goes beyond the degree conceived of by the Legislature for a completion of the crime of robbery. The merger of aggravated assault and robbery in cases such as the one sub judice would act as an open invitation to violent assailants to compound the injuries they inflict and then escape liability for additional crimes under the guise that the crimes were all part of the same criminal act.

The fact that a defendant has visited one injury upon the person of another does not insulate him from further liability if he chooses to continue his assaultive behavior and in doing so commits additional crimes.

Commonwealth v. Williams, supra, 344 Pa.Superior Ct. at 130, 496 A.2d at 43. This court upheld separate sentences for rape, involuntary deviate sexual intercourse, indecent assault, and unlawful restraint based on a single sexual attack in Commonwealth v. Wojciechowski, 285 Pa.Superior Ct. 1, 9, 426 A.2d 674, 678 (1981) (allocatur denied) saying; “[i]t is unthinkable that a woman, once having been raped, is in the position where her attacker can then abuse her in any other fashion sexually ... without incurring further sanctions for these separate and distinct crimes”.

We also consider whether the statutes defining the crimes charged were directed to substantially the same harm or evil.

In determining how many different “evils” are present in a given criminal act, the sentencing court should devote close attention to the language the Legislature has used and the scheme it has followed in defining offenses in the Crimes Code and other penal statutes. The court must also approach the question with a heavy dose of common sense.

Commonwealth v. Williams, supra 344 Pa.Super. at 143, 496 A.2d at 50. In Commonwealth v. Adams, 350 Pa.Superior Ct. 506, 504 A.2d 1264 (1986) this court sitting en banc, held that under the facts of that case, the crimes of aggravated assault and robbery grew out of the same physical act and merged for sentencing purposes. We agree with the court in Commonwealth v. Adams, id., 350 Pa.Superior Ct. at 516, 504 A.2d at 1270, that the harm against which the Legislature intended to protect by enacting the aggravated assault statute is part of the same harm against which the robbery statute is intended to protect, i.e. protection against infliction of bodily injury. However, we also recognize that the robbery statute more specifically intends to punish those who threaten violence or resort to violent means in order to accomplish their goal of theft.

In Adams, the appellant shot a bartender while attempting to rob a bar; these facts indicate that true to the language of the robbery statute, the appellant inflicted serious bodily injury upon another, while “in the course of committing a theft.” See, 18 Pa.C.S.A. § 3701(a)(1). In the case sub judice, however, the facts show that the assault was not committed in an attempt to rob the victim since once appellant had strangled the victim causing her to lose consciousness, he was free to complete the robbery. He continued a gruesome and prolonged attack separate and distinct from the robbery. This set of facts indicates that the two crimes were two separate criminal acts. As we expressed in Commonwealth v. Wojciechowski, supra, it is unthinkable that a robber, after choking his victim into unconsciousness, could then maim her without fear of further punishment.

We also find that the aggravated assault statute and the robbery statute protect different interests of the Commonwealth as evidenced by the fact the Legislature has classified them separately under “Offenses Involving Danger to the Person” (Title 18, Part II, art. B), and “Offenses Against Property” (id. art. C). Commonwealth v. Williams, supra 344 Pa.Super. at 144, 496 A.2d at 51.

The rule of merger is not to be mechanically applied. After careful scrutiny of the particular facts of the case presently before the court, we decline to subsume a severe assault into a relatively minor robbery. By making the infliction of bodily harm an element of robbery, the Legislature could not have intended to prevent sentencing courts from directly punishing those who commit vicious and prolonged assaults.

Finally, appellant asserts three claims of ineffectiveness of counsel. When confronted with a claim of ineffectiveness of counsel, we must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. If the underlying issue is found to be of arguable 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). Furthermore, an appellant must show that any deficient performance by counsel caused prejudice and affected the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986).

Appellant’s first claim is that trial counsel was ineffective in failing to object to the court’s jury instructions regarding the charge of possessing instruments of crime. The jury was instructed to determine whether or not the knife, scissors and ice pick alleged to have been instruments of crime were in fact such, in light of the definition of instruments of crime. The court then provided the jury with an accurate definition pursuant to 18 Pa.C.S.A. § 907(c). Appellant argues that the charge was improper since the court should have found as a matter of law that the scissors and ice pick were not instruments of crime. Appellant does not challenge the court’s mention of a knife as a possible instrument of crime.

The Legislature has established two alternative criteria for determining whether an object is an instrument of crime: the object must either be one which is regularly used by criminals or it must be one which is physically altered in such a fashion as to demonstrate a criminal objective. Commonwealth v. Rodriquez, 316 Pa.Superior Ct. 203, 462 A.2d 1310 (1983). A review of the case law leads us to agree that an ice pick and a pair of scissors may not fit within the statutory definition of an instrument of crime. See e.g., Commonwealth v. Durrant, 501 Pa. 247, 460 A.2d 732 (1983) (a pool cue does not fit within the statutory definition of an instrument of crime); Commonwealth v. Rodriquez, supra (an ordinary razor blade is not an instrument of crime); Commonwealth v. Aycock, 323 Pa.Superior Ct. 62, 470 A.2d 130 (1983) (18" long piece of channel steel is not an instrument of crime).

Even if the appellant’s underlying claim has merit and counsel should have objected to the jury instruction, we find that the failure to object has not caused provable prejudice nor has it affected the outcome of the trial. Appellant was charged with possessing instruments of crime and the jury was given an accurate instruction setting forth the elements necessary to convict a defendant of that crime. The judge’s charge was a fair, accurate and complete statement of the law. Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983). Since the appellant does not contest that the knife was an instrument of crime and the record is clear that the knife was used in the commission of the crime, the fact that the court also mentioned the ice pick and scissors caused no prejudice. Therefore, this claim of ineffectiveness must fail.

Appellant alleges a further claim of ineffectiveness in counsel’s failure to object to the sentencing judge’s application of the deadly weapon enhancement provision to the aggravated assault conviction. Appellant argues that weapons enhancement was erroneous for two reasons. First, because 204 Pa.Code § 303.4(b) provides that there shall be no deadly weapon enhancement for conviction under 18 Pa.C.S.A. § 2702(a)(4) relating to aggravated assault with a deadly weapon. As appellant was convicted under 18 Pa.C.S.A. § 2702(a)(1) and not § 2702(a)(4), this claim has no merit.

Appellant also argues that the deadly weapon enhancement should be eliminated for aggravated assault pursuant to § 303.4(c) which states, “Where there are sentences for crimes arising from the same transaction, the deadly weapon enhancement shall be applied only to the conviction offense which has the highest offense gravity score.” However, subsection (c) of § 303.4 did not become effective until January 2, 1986, and such amendments are only applicable to offenses committed on or after the effective date. See § 303.1(d). Since the offenses were committed on March 17, 1983, subsection (c) is inapplicable to the case at bar. Therefore, this contention is also meritless.

Appellant further contends that counsel was ineffective in failing to challenge the sentencing court’s error in calculating appellant’s prior record score. The appellant’s sentences on robbery, aggravated assault and possessing instruments of crime were all imposed consecutively and the sentencing judge arrived at a prior record score of “6” for each of these offenses. Appellant argues that his offenses arose out of the same transaction and that under § 303.6 of the Sentencing Guidelines, the trial court should have used his prior record score only once, for robbery, and calculated the remaining sentences with a prior record score of zero. 204 Pa.Code § 303.6, found at 42 Pa.C.S.A. § 9721 provides:

§ 303.6. Consecutive sentences.
(a) When imposing consecutive sentences for convictions arising out of the same transaction, the prior record score is computed for the offense with the highest offense gravity score in such transaction. For the remaining offenses in such transaction, the prior record score shall be zero, (emphasis added)
(b) When imposing consecutive sentences for convictions arising out of separate transactions, the prior record score shall be computed independently for each conviction, (emphasis added)

The issue is whether the convictions arose out of the same transaction. It must be stated at the outset that our holding supra, that aggravated assault and robbery were separate criminal acts precluding sentencing merger, does not dispose of this issue since separate criminal acts which demand consecutive sentences, can arise out of the same transaction. This is implicit in the language of § 303.6. By way of example, in Commonwealth v. Terrizzi, 348 Pa.Superior Ct. 607, 502 A.2d 711 (1985) appellant was convicted of rape and burglary, crimes which did not merge for sentencing purposes. However, the court stated, “It appears that the proper prior record score for burglary should have been zero because the court imposed consecutive sentences involving the same transaction. 204 Pa.Code § 303.-6. ” Id., 348 Pa.Superior Ct. at 615 n. 7, 502 A.2d at 716 n. 7.

We find that appellant’s three criminal convictions comprised one criminal transaction due to the close temporal and logical relationship of the crimes. The Pennsylvania Commission on Sentencing has stated, in reference to section 303.6(a), that:

A “transaction” is a crime or crimes which were committed by a defendant at a single time or in temporally continuous actions that are part of the same episode, event, or incident ...

Pa.C.Sent.2d (September 1, 1986) p. 51. We find that the robbery, aggravated assault and possessing instruments of crime were part of a single contiguous train of criminal events with no substantial “break” in the criminal activity. See Commonwealth v. Flenory, 351 Pa.Superior Ct. 27, 504 A.2d 1341 (1986).

Therefore, the sentencing judge erred in assigning a prior record score of “6” for aggravated assault and possessing instruments of crime. In accordance with 204 Pa.Code § 303.6(a), the prior record score for these two offenses should have been “0” since robbery is the offense with the highest gravity score. This sentencing error caused provable prejudice to appellant. We find that trial counsel was ineffective in failing to object to the calculation of prior record score. We remand for resentencing on the convictions of aggravated assault and possessing instruments of crime. Prior record scores of zero are to be used for both of these offenses, in accordance with the Sentencing Guidelines.

Appellant’s final claim of ineffectiveness is based on counsel’s failure to request that the sentence be vacated as a result of the sentencing judge’s alleged failure to state on the record adequate reasons for deviating from the Sentencing Guidelines. Only the sentence imposed for possessing instruments of crime deviated from the guidelines. Since the lower court erroneously applied a prior record score of “6” when calculating the sentence for this conviction we must remand for resentencing. Therefore, we need not determine whether the reasons supporting the sentence were adequately articulated on the record.

This case is remanded for resentencing on the convictions of aggravated assault and possessing instruments of crime in accordance with this opinion. Jurisdiction relinquished.

WIEAND, J., filed a concurring statement.

WIEAND, Judge,

concurring:

I join Judge Cercone’s excellent opinion. I write separately only to emphasize my continued adherence to the view that the merger of offenses for sentencing purposes is an issue which is waived by failure to raise it in a post-sentencing motion to modify the sentence where, as here, merger is not apparent from the face of the record and can be determined only after a review and analysis of the evidence. See: Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986) (Concurring Opinion by Wieand, J.). Under this view, appellant would have waived the merger issue by his failure to file a motion to modify the sentence imposed by the trial court.

      . Appellant was a minor when these crimes were committed but he was certified to be tried as an adult.

      . ‘Yeah, I did it, but I'm not the only one that’s going to go to jail for it.”

      . Even if, arguendo, this issue had been properly preserved for appellate review, after having considered all of the evidence in the light most favorable to the Commonwealth as the verdict winner, we agree with the trial court that the facts were more than sufficient to allow the jury to conclude that the appellant was guilty of the robbery beyond a reasonable doubt.

      . The record indicates that a motion to modify sentence was not filed. However, a claim of illegal sentence based on the merger of the underlying convictions cannot be waived. Commonwealth v. Adams, 350 Pa.Superior Ct. 506, 504 A.2d 1264 (1986).

      . 18 Pa.C.S.A. § 3701. Robbery
      (a) Offense defined.—
      (1) A person is guilty of robbery if, in the course of committing a theft, he:

        (1) inflicts serious bodily injury upon another;
      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
      (iii) commits or threatens immediately to commit any felony of the first or second degree;
      (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
      (v) physically takes or removes property from the person of another by force however slight.
      (2) An act shall be deemed "in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.

      . 18 Pa.C.S.A. § 2702. Aggravated assault
      (a) Offense defined. — A person is guilty of aggravated assault if he:
      (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
      (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon; ...

      . The traditional test for merger pursuant to the Double Jeopardy Clause of the United States and Pennsylvania Constitutions, is whether all the elements of one crime are also elements of the other. See United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985); Commonwealth v. Maddox, 307 Pa.Superior Ct. 524, 453 A.2d 1010 (1982).
      The doctrine of sentencing merger is broader and more flexible than the double jeopardy protection against multiple punishments for the "same offense.” The doctrine acts to limit the multiplicity of sentences for what is, in practical effect, a single criminal act, even when the elements of the various crimes charged do not reveal that any of those crimes is necessarily included in any other. Commonwealth v. Williams, supra 344 Pa.Super. at 124, 496 A.2d at 40.
      Appellant does not assert that the separate sentences violate the Double Jeopardy Clause of the United States or Pennsylvania Constitution. Therefore, we consider his argument only in the context of the common law doctrine of sentencing merger.

      . For other cases in which it was opined that aggravated assault and robbery should not merge for sentencing purposes, see Commonwealth v. Adams, supra, 350 Pa.Superior Ct. at 523, 504 A.2d at 1273 (Wieand, J., joined by Cavanaugh, J., concurring; McEwen, J., concurring); Commonwealth v. Thompson, 343 Pa.Superior Ct. 468, 495 A.2d 560 (1985); Commonwealth v. Bryant, 282 Pa.Superior Ct. 600, 423 A.2d 407 (1980); Commonwealth v. Hill, 237 Pa.Superior Ct. 543, 353 A.2d 870 (1975) (allocatur denied).

      . 907. Possessing instruments of crime
      (c) Definitions. — As used in this section the following words and phrases shall have the meanings given to them in this subsection:
      ’’Instrument of Crime.”
      (1) Anything specially made or specially adapted for criminal use; or
      (2) Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

      . Pursuant to the Sentencing Guidelines, 204 Pa.Code § 303.8(d), aggravated assault which causes serious bodily injury has an offense gravity score of “7”. With a prior record score of “0” the minimum range for sentencing would be from 8 to 12 months, the aggravated minimum range would be from 12 to 18 months, the mitigated minimum range would be from 4 to 8 months. However, utilizing a prior record score of "6”, the minimum range for sentencing increases to 43 to 64 months, the aggravated minimum range is 64 to 80 months, and the mitigated minimum range is 32 to 43 months.
      While the actual sentence of 60 to 120 months imposed for aggravated assault fell within the Sentencing Guidelines when a prior record score of “6” was used, such a sentence would deviate substantially from the Guidelines if the sentence had been calculated using the correct prior record score of “0”.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    524 A.2d 951
    NEW YORK GUARDIAN MORTGAGE CORPORATION v. Albert DIETZEL & Michele A. Dietzel, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1986.
    Filed April 23, 1987.
    Reargument Denied July 6, 1987.

      Mary Jeffery, Philadelphia, for appellants.
    Lawrence T. Phelan, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and BECK, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County granting appellee’s motion for summary judgment in an action in mortgage foreclosure. We affirm.

Appellant raises three issues for our review: (1) whether the trial court committed an error of law in granting plaintiff summary judgment and concluding that there were no material facts in dispute and that plaintiff was entitled to relief; (2) whether the trial court committed an error of law in concluding that plaintiff did not violate the provisions of 15 U.S.C. § 1601 et seq.; and (3) whether the trial court committed an error of law in concluding, that plaintiff did not violate the provisions of 41 P.S. §§ 401 et seq.

It is axiomatic that in granting a motion for summary judgment, there must be no genuine issue of material fact and as a matter of law the moving party is entitled to prevail. Furthermore, the record is viewed in the light most favorable to the non moving party. Fox v. State Farm Mutual Auto Insurance Company, 322 Pa.Super. 96, 469 A.2d 199 (1983).

With regard to the first issue raised by appellants, we find that the trial court did not err in granting summary judgment as to all issues raised in appellee’s motion. It is clear that the court was correct in granting summary judgment as to the liability issue. Appellants, in their answer to appellee’s complaint, admitted that they were behind in their mortgage payments. Likewise, appellants’ general denial that they “are without information sufficient to form a belief as to the truth of” appellee’s averment as to the principal and interest due is to be considered an admission of those facts. See Pa.R.C.P. 1029(c); Cercone v. Cercone, 254 Pa.Super. 381, 386 A.2d 1 (1978). Unquestionably, apart from appellee, appellants are the only parties who would have sufficient knowledge on which to base a specific denial.

Appellants also claim that there is a genuine issue of material fact as to the attorney fees, costs of suit and title search. In support of this claim, appellants refer to the denial of these items in their answer to appellee’s complaint. This case is very similar to the recent case of Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986). In Stein, we stated that appellant’s “reliance upon the pleadings is misplaced. Pa. R.C.P. 1035(d) specifically provides that they may not rest upon the averments contained in the pleadings. In order to properly raise a genuine issue of fact, the Steins had the burden to present ‘facts’ by counter-affidavits, depositions, admissions, or answers to interrogatories”. 357 Pa.Superior Ct. at 292, 515 A.2d at 982-83.

Here, as in Stein, appellants offered nothing to contradict appellee’s claim except the denial in their answer. Therefore, we find that there was no genuine issue of fact, and summary judgment was proper.

The second issue raised by appellant concerns appellee’s compliance with the federal Truth-in-Lending Act, 15 U.S.C. §§ 1601-1693R. Appellants have asserted, in a counterclaim to the mortgage foreclosure action, the right to set-off for a violation of the Federal Truth-In-Lending Act, 15 U.S.C. §§ 1601-1693R. Section 1640(h) of the Act provides:

A person may not take any action to offset any amount for which a creditor is potentially liable to such person under subsection (a)(2) of this section against any amount owed by such person, unless the amount of the creditor’s or assignee’s liability under this subchapter has been determined by judgment of a court of competent jurisdiction in an action of which such person was a party. This subsection does not bar a consumer then in default on the obligation from asserting a violation of this sub-chapter as an original action, or as a defense or counterclaim to an action to collect amounts owed by the consumer brought by a person liable under this subchapter.

(Emphasis added). Additionally, § 1640(e) of the Act which is labelled “Jurisdiction of courts; limitations on actions” states:

This section does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action____

(Emphasis added). These provisions make clear that a person can assert a claim under the Act only in an action for a money judgment either as a counterclaim to an action to collect money owed by the consumer, or in an original claim brought by the consumer. Therefore, a counterclaim for a set-off under the Act can only be asserted in an action which contemplates a personal judgment.

An action in mortgage foreclosure is strictly an in rem proceeding, and the purpose of a judgment in mortgage foreclosure is solely to effect a judicial sale of the mortgaged property. Meco Realty Co. v. Burns, 414 Pa. 495, 200 A.2d 869 (1964). A judgment in a mortgage foreclosure action is not a judgment for money damages and therefore cannot be “an action to collect amounts owed” or “an action to collect the debt” as required under § 1640(h) and (e) of the Truth-In-Lending Act. Therefore, a set-off for an alleged violation of the Truth-In-Lending Act cannot be asserted as a counter-claim in a mortgage foreclosure action.

The final issue raised by appellants challenges the trial court’s determination that appellee adequately complied with the notice provisions of 41 P.S. §§ 401-605. 41 P.S. § 403(c) provides:

(c) The written notice [of the intention to foreclose] shall clearly and conspicuously state:
(1) The particular obligation or real estate security interest;
(2) The nature of the default claimed;
(3) The right of the debtor to cure the default as provided in section 404 of this act and exactly what performance including what sum of money, if any, must be tendered to cure the default;
(4) The time within which the debtor must cure the default;
(5) The method or methods by which the debtor’s ownership or possession of the real estate may be terminated; and
(6) The right of the debtor, if any, to transfer the real estate to another person subject to the security interest or to refinance the obligation and of the transferee’s right, if any, to cure the default.

Appellants claim that the notice sent to them contained an incorrect figure owed as a late charge, and that appellee failed to adequately disclose that the mortgage is assumable. Both contentions are without merit.

By stipulation, the parties agreed that two notices were sent to appellants. First, the total amount to cure the default remained the same in both notices; and, the second notice was sent the same day as the first notice and contained the correct late charge amount. Where the lender correctly states the correct amount due to cure the default but inadvertently states an incorrect amount in the subpart thereof and immediately corrects the error, there can be no confusion as to the amount due to cure the default and thus there is no violation of the disclosure requirements of 41 P.S. § 403.

The argument that the notice to foreclose failed to adequately disclose that the mortgage was assumable belies the plain language of the notice. Any suggestion by appellants that the notice was required to contain a statement that there is an absolute right to have a buyer assume the mortgage ignores the plain language of 41 P.S. § 403(c)(6). See 1 Pa.C.S. § 1903(a); Fireman’s Fund Ins. Co. v. Nationwide Mutual Ins. Co., 317 Pa.Super. 497, 464 A.2d 431 (1983) (words of a statute must be construed according to their common and accepted usage).

Order affirmed.


author: OLSZEWSKI, Judge:

text:
    524 A.2d 954
    Hugh CARROLL, Justice Ad Litem for the Estate of Rita Carroll, Deceased, on Behalf of All Persons Entitled To Share In Damages, Appellant, v. Murray H. KIMMEL, M.D., Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 29, 1987.
    Filed April 23, 1987.

      Neil E. Jokelson, Philadelphia, for appellant.
    John H. McKeon, Jr., Philadelphia, for appellee.
    Before CAVANAUGH, OLSZEWSKI and MONTEMURO, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the entry of a judgment of non pros against appellant Hugh Carroll as trustee ad litem for the estate of Rita Carroll. Appellant claims the trial court erred in granting a judgment of non pros in favor of appellee, Dr. Murray H. Kimmel. We disagree with appellant and consequently affirm the judgment.

The following chronology is drawn from the record and the uncontested facts in the briefs:

February 27, 1978 — Rita Carroll dies.
February 28, 1980 — Plaintiff-trustee files a notice complaint with the arbitration panels for health care claiming appellee, Dr. Kimmell, “has committed torts causing injury and death to Rita Carroll, resulting from the furnishing of medical services which were or should have been provided.” (R.R. la).
April 1, 1980 — Counsel for appellee enters an appearance.
April 9, 1980 — Appellee files a rule to file a complaint.
April 23, 1980, and May 19, 1980 — Appellee grants two twenty-day extensions in which appellant is to file a complaint.
July 3, 1980; August 8, 1980; August 11, 1980; October ■ 30, 1980 — Courtesy letters exchanged between counsel focusing on appellant’s failure/inability to review the case.
October 27, 1980 — Appellee files an election of jurisdiction pursuant to Pa.R.Civ.P. 213(f) to transfer the case from arbitration to the Court of Common Pleas of Philadelphia County.
November 11, 1980 — Appellant sends a courtesy letter stating he will “promptly advise” appellee of his intent to proceed.
November 28, 1980 — The case is transferred to the Court of Common Pleas of Philadelphia County.
December 17, 1980 — Appellant sends letter to appellee explaining that he had not yet received and reviewed the hospital records.
February 18, 1981 — Appellee requests a reply within ten days regarding appellant’s intentions.
November 7, 1983 — Appellant receives notice that the case has been dismissed by the Court of Common Pleas for failure to file a certificate of readiness.
November 25, 1983 — Appellant files a motion to file a certificate of readiness nunc pro tunc.
December 29, 1983 — Court grants appellant’s motion and certificate of readiness is filed.
December 27, 1984 — Parties are called to a pre-trial conference.
January 7, 1985 — appellant’s complaint is filed and service is made. In that complaint, appellant alleges that Dr. Kimmell failed to remove kidney stones during surgery performed on Mrs. Carroll in 1975 and, thereafter, did not provide proper follow-up care. Appellant claims that the doctor’s treatment or lack of treatment contributed to Mrs. Carroll’s death due to a massive myocardial infarction.

On January 25, 1985, appellee filed preliminary objections in the nature of a motion for judgment of non pros pursuant to Pa.R.Civ.R. 1037(c), which provides:

(c) In all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission.

The trial court granted the motion and entered an order on May 8, 1986, which stated in full:

AND NOW, this eighth day of May, 1986, upon consideration of Defendant’s Motion to Determine Preliminary Objections in the nature of a Motion for Judgment of Non Pros and Plaintiff’s Answer thereto, it appearing that:
1. Plaintiff has shown lack of due diligence in the prosecution of this case by delaying FIFTY-EIGHT months before filing complaint, after having filed and served a Notice Complaint;
2. Plaintiff has advanced no compelling reason which would excuse or justify his failure to proceed;
3. Destruction of certain medical records by the hospitals in their regular course of business has prejudically impaired the ability of Defendant to defend this lawsuit, Goldsborough v. City of Philadelphia, 309 Pa.Super. 347, 455 A.2d 643 (1982);
it is hereby ORDERED and DECREED that said Preliminary Objections are GRANTED and Judgment of Non Pros is entered against Plaintiff.

Order, May 8, 1986, reproduced in appellant’s brief at 2.

In this appeal, appellant claims: (1) the record is devoid of evidence that he failed to pursue the case with diligence; (2) that any delay is not attributable to him; and (3) that appellee has not suffered prejudice by the alleged delay. We cannot agree with appellant’s contentions.

Twenty years ago, our Supreme Court authorized the entry of a judgment of non pros pursuant to Pa.R.Civ.P. 1037(c) in a case procedurally similar to the one at hand. In Gallagher v. Jewish Hospital Assoc., 425 Pa. 112, 228 A.2d 732 (1967), plaintiffs commenced an action in 1946 but took no further steps until 1965 when a complaint was filed. Shortly thereafter, defendants filed a motion for entry of a judgment of non pros. Gallagher, 425 Pa. at 113, 228 A.2d at 733. In affirming the grant of a non pros, the Court relied upon two grounds: the inherent power of the court to grant a non pros for an unreasonable delay and Pa.R.Civ.P. 1037(c). Id., 425 Pa. at 116-117, 228 A.2d at 734-735. In reviewing the propriety of the entry of a non pros, the Gallagher Court stated:

It is well settled law that the question of granting a non pros because of the failure of the plaintiff to prosecute his action within a reasonable time rests within the discretion of the lower Court and the exercise of such discretion will not be disturbed on appeal unless there is proof of a manifest abuse thereof.

425 Pa. at 113, 228 A.2d at 733 (citations omitted).

The standards for determining whether the trial court abused its discretion in granting a non pros are also well settled:

A Court may properly enter a judgment of non pros when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses.

Moore v. George Heebner, Inc., 321 Pa.Super. 226, 229, 467 A.2d 1336, 1337 (1983), quoting, James Brothers Lumber Co. v. Union Banking & Trust Co. of DuBois, 432 Pa. 129, 132, 247 A.2d 587, 589 (1968). In view of these standards, we conclude the trial court acted well within its discretion in granting a judgment of non pros.

Diligence Element

Appellant delayed almost five years in pursuing this case. “A delay as long or longer than the applicable period of limitations is generally considered sufficient to warrant a judgment of non pros if the other tests are met.” Kennedy v. Bulletin Co., 237 Pa.Super. 66, 346 A.2d 343, 345 (1975) (footnote omitted) (delay of five and one-half years in bringing tort action justified a judgment of non pros). The delay here continued for a period of time far longer than the two-year statute of limitations governing appellant’s claims of negligence. Consequently, the court’s finding that appellant failed to act diligently is confirmed.

Appellant argues, however, that the onus was on appellee to take action forcing appellant to file a complaint. We disagree. “The duty, therefore, is clearly on the appellant to proceed with his cause of action and he, not the appellee, should bear the risk of not acting within a reasonable time.” Kennedy, 237 Pa.Super. at 71-72, 346 A.2d at 346.

In view of the long delay and appellant’s failure to actively pursue this case, the trial court correctly found that this requirement was met.

Reason for the Delay Element

As we noted above, case law requires us to determine whether a “compelling reason” for the delay was advanced. Nowhere in the record or briefs does appellant offer a “compelling reason” for the lengthy hiatus in this case. Appellant’s only explanation is by way of argument in brief wherein he states that the delay was by “joint agreement of the parties.” Appellant’s brief at 13. Appellant’s argument is belief, however, by the record; the uncontested documentary evidence demonstrates that the only “joint agreement” to delay the case was made in 1980 when counsel for appellee agreed to two twenty-day time extensions. Appellant fails to offer a compelling reason for the other fifty-seven months’ delay before filing the complaint.

Appellant continues in this regard by summarily arguing that a non pros may not be entered where the delay was caused by counsel’s excusable neglect. See, generally, Moore, 321 Pa.Super. at 229, 467 A.2d at 1338-1339 (neglect of counsel may be a “compelling reason” for delay if counsel offers a reasonable explanation for the neglect). Appellant’s counsel does not pursue this argument and fails to offer a reasonable explanation for any conceivable mistake, oversight, or neglect on his part. We refuse to speculate as to either the cause or the reason for the delay.

Prejudice Element

We also find that this final element has been satisfied. In support of its motion for non pros, appellee submitted an affidavit stating that every diagnostic x-ray, film, and report pertaining to the decedent’s urological problems and surgery have been destroyed as a matter of routine and regular housekeeping practice. Affidavit of Denise M. Barger, exhibit G of appellee’s motion for non pros. The type of prejudice necessary to support a non pros is not “limited to the death or absence of a material witness or the disappearance of a record” but “includes any substantial diminution of (the) ability to present factual information in the event of trial which has been brought about by plaintiffs delay.” American Bank and Trust Co. v. Ritter, Todd and Haayen, 274 Pa.Super. 285, 289, 418 A.2d 408, 410 (1980).

Given the allegations in appellant’s complaint, supra, such evidence undoubtedly would have been crucial to an effective defense and, perhaps, to the presentation of appellant’s own case. For example, appellant averred that during a March 1975 operation to remove ureteral stones, appellee failed to remove a “mass of other stones. then present within the left kidney of the plaintiff’s decedent.” (R. 24a, par. 4.) Appellee’s ability to refute that claim has been seriously prejudiced by the destruction of a post-operative film of the abdomen which, according to appellee, “showed no evidence of remaining stones.” (R. 53a.) There can be no dispute that the post-operative film, together with the subsequent films documenting the decedent’s urological condition, would not have tended “to make a fact at issue more or less probable” and therefore have constituted material evidence under Pennsylvania law. Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983). Further, appellant’s claim that appellee failed to provide proper follow-up care to the decedent would be jeopardized given that the post-operative reports have been destroyed.

We are convinced that the destruction of such material evidence, coupled with the inevitable fading of memory and diminution of appellee’s ability to produce evidence, firmly supports the trial court’s finding of prejudice.

Finally, we reject appellant’s claim that appellee has waived the right to file for a judgment of non pros. Such a waiver would occur where the movant “indicates through his conduct a willingness to try the case on the merits notwithstanding the delay.” De Siato v. Shahboz, 277 Pa.Super. 333, 336-337, 419 A.2d 798, 800 (1980). After a careful examination of the record, we can find no action by appellee indicating a waiver had occurred. Appellee’s grant of two time extensions to appellant was a mere courtesy and occurred early in the proceedings. Nor do we believe that appellant’s filing of a certificate of readiness after three years of inactivity prevents the entry of a judgment of non pros. As in Kennedy, supra, a judgment of non pros may be granted despite the filing of a certificate of readiness. Furthermore, as we noted above, it was incumbent upon appellant to advance his cause of action; appellee cannot be held to have waived the opportunity for a non pros by failing to make such a request at an earlier time.

In sum, we are convinced that the requirements for a non pros have been adequately demonstrated. Finding no abuse of discretion, we affirm the order and judgment.

      . A direct appeal may be filed from a judgment of non pros. See Erie Human Relations Commission v. Erie Insurance Exchange, 304 Pa.Super. 172, 450 A.2d 157 (1982).

      . The reproduced record contains a letter dated June 16, 1981, addressed to appellant stating that a motion to dismiss will be filed within five days. Because counsel for appellant claims that his letter is not in his files, we will not consider it.


author: WIEAND, Judge:

text:
    524 A.2d 958
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. UNITED PENN BANK and Phoenix Industries. Appeal of UNITED PENN BANK.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1986.
    Filed April 24, 1987.

      Arthur L. Piccone, Wilkes-Barre, for appellants.
    Anthony J. Piazza, Jr., Scranton, for appellee.
    Before WIEAND, CERCONE and HOFFMAN, JJ.
   WIEAND, Judge:

The dispute in this case is between United States Fidelity & Guaranty Company (USF & G), a corporate surety which was called upon to make good a contractor’s nonpayment of the purchase prices for certain materials and supplies, and the United Penn Bank, a lending institution which held a perfected security interest in the same goods. After Phoenix Industries, Inc. (Phoenix), the contractor, had defaulted in the repayment of its loan to the bank, both the bank and USF & G asserted claims against the contractor’s inventory. The trial court, in an interpleader proceeding, held that USF & G had a superior interest in the inventory and awarded to it the proceeds of a sale thereof. The bank appealed.

Between 1978 and 1980, United Penn Bank made various loans to Phoenix, a construction contractor. On July 28, 1981, the parties entered into a loan agreement which consolidated all outstanding loans and established a future line of credit. Pursuant to this agreement, Phoenix executed two promissory notes in favor of the bank: one for the amount of the consolidated indebtedness and the other to evidence an indebtedness for monies to be advanced pursuant to the new line of credit. As security, Phoenix gave the bank a security interest in all inventory and accounts of Phoenix, including future inventory and accounts thereafter acquired. The bank perfected its security interest by filing financing statements in Lackawanna County on July 30, 1981, and in the office of the Pennsylvania Secretary of State on September 1, 1981. In May, 1983, the bank renewed the line of credit which it had previously extended to Phoenix. Advances made by the bank pursuant to the new credit line were evidenced by a third promissory note which Phoenix executed and delivered to the bank on May 1, 1983.

Phoenix was thereafter awarded a contract to perform roofing and sheet metal work on a federal project to renovate the Chamberlain Munitions Plant in Scranton, Pennsylvania. Before Phoenix could begin work on the project, it was required, under federal law, to obtain performance and payment bonds. To satisfy this requirement, Phoenix made application to USF & G, which, on October 24, 1983, issued the performance and payment bonds which enabled Phoenix to begin work on the Chamberlain project.

Phoenix thereafter ordered materials which were necessary for performance of the Chamberlain job. On October 26, 1983, Phoenix ordered insulation from Apache Building Products Company (Apache), which Apache delivered to Phoenix’s plant on March 16, 1984. Phoenix also ordered and received roofing supplies from GAF Roofing Materials Company (GAF). Because of growing financial difficulties, Phoenix was unable to pay for the materials delivered by Apache and GAF. Consequently, a demand for payment was made by Apache and GAF to USF & G in accordance with the terms of the payment bond which USF & G had issued on behalf of Phoenix.

On March 31, 1984, Phoenix defaulted on one of the promissory notes which it had executed in favor of the bank. Consequently, all promissory notes became immediately due and payable. On April 3, 1984, the bank confessed judgment against the subcontractor on one of the 1981 notes and caused the Sheriff of Lackawanna County to levy upon various items of personal property held by the subcontractor, including the materials which had been supplied by Apache and GAF for use on the Chamberlain project. These goods were scheduled for sheriff’s sale on May 4, 1984.

On the day prior to the sheriff’s sale, USF & G filed a sheriff’s interpleader claim in which it objected to the sale of insulation and roofing materials delivered by Apache and GAF. With respect thereto, USF & G contended that Apache and GAF had acquired a “secured ownership interest” in the material which each had delivered to Phoenix. The claim was later amended by USF & G to assert its own security interest in the inventory by virtue of the surety bonds which it had issued to Phoenix for the Chamberlain project. The bank contested USF & G’s claim but agreed that the disputed goods should be excluded from the sheriff’s sale pending determination of the sheriff’s interpleader action.

After hearing, the Lackawanna County Sheriff determined that although USF & G possessed a superior ownership interest in the insulation which had been sold to Phoenix by Apache, the bank’s interest in the roofing material supplied by GAF had priority. Both the bank and USF & G filed exceptions to the sheriff’s decision, and an appeal was subsequently filed by the parties in the Court of Common Pleas of Lackawanna County. Thereafter, the bank and USF & G entered into an escrow agreement pursuant to which the disputed property was sold, with the proceeds being deposited in an interest bearing escrow account at First State Bank in Scranton, Pennsylvania, to await decision of the pending litigation.

Following trial without jury, the court found that USF & G’s interest in the inventory was superior to the security interest held by the bank, and the proceeds from the sale of the inventory were awarded to USF & G. Exceptions were filed and dismissed. In doing so, the trial court expressly relied upon a decision of this Court in Himes v. Cameron County Construction Co., 289 Pa.Super. 143, 432 A.2d 1092 (1981), aff'd, 497 Pa. 637, 444 A.2d 98 (1982) and upon the decision of the Pennsylvania Supreme Court in Jacobs v. Northeastern Corp., 416 Pa. 417, 206 A.2d 49 (1965).

Article Nine of the Uniform Commercial Code, 13 Pa.C.S.A. § 9101 et seq., establishes a comprehensive scheme for the regulation of security interests in personal property and fixtures. See: 13 Pa.C.S.A. § 9101 comment-1972. Pursuant to 13 Pa.C.S.A. § 9201, a security agreement is effective not only between debtor and creditor, but also against subsequent purchasers of the secured collateral and against other creditors. Thus, a creditor with a perfected security interest in collateral has, under the Code, an interest therein which is superior to that of unsecured creditors. See: 79 C.J.S. Secured Transactions § 58. Generally, an unsecured surety “cannot retain security as against [a] prior attaching creditor[ ].” Aetna Casualty & Surety Co. v. Brunken & Son, Inc., 357 F.Supp. 290, 293 (D.S.D.1973). See: 72 C.J.S. Principal and Surety § 241.

In Himes v. Cameron County Construction Corp., supra, a general contractor had been awarded a contract by a municipal authority to construct sewer systems and perform related construction work. Before commencing work, the contractor obtained payment bonds from a surety as required by law. To finance the construction, the contractor borrowed money from a bank and, as collateral for the loan, granted to the bank a security interest in the proceeds of the construction contract. After construction was complete, the contractor experienced financial troubles and defaulted in repaying the bank loan. Financial difficulties also prevented the contractor from paying subcontractors who had performed work on the project. Unable to receive payment from the surety, which had become insolvent, one of the subcontractors commenced an action directly against the contractor to recover for labor and materials which the subcontractor had supplied to the project. After the subcontractor obtained a judgment against the contractor, he attempted to enforce the same by attaching funds which the municipal authority had withheld from the contract price as retainage. At or about the same time, the bank filed a claim with the authority in which it asserted a security interest in the retained contract funds and requested payment therefrom of the unpaid balance of its loan to the contractor. To resolve these conflicting claims, the authority commenced an interpleader action in the Court of Common Pleas of Cambria County and joined all known creditors of the contractor, including other subcontractors who had not been paid for work performed on the sewer project. After hearing, the trial court ordered that the subcontractors, rather than the bank, should receive the funds retained by the authority on the project. The Superior Court affirmed. In so doing, our Court observed that although the bank had been granted a security interest in the contract proceeds, its interest had never been perfected by attachment of the fund. In order for the bank’s security interest to attach, the Court observed, it was necessary for the contractor to acquire rights in the proceeds of the contract. Id., 289 Pa.Superior Ct. at 149-150, 432 A.2d at 1096. Under the terms of its contract, however, the contractor was not entitled to receive the proceeds until it had paid all suppliers who had performed work on the project. Because the contractor failed to satisfy this contractual obligation, the Court held, he was not entitled to the retained proceeds, and, therefore, the security interest of the bank did not attach. Id. As a result, the Court concluded, the bank had no interest in the retained proceeds upon which to base a claim. Id., 289 Pa.Superior Ct. at 152, 432 A.2d at 1097. The Supreme Court of Pennsylvania agreed and affirmed. See: Himes v. Cameron County Construction Corp., supra.

The decision in Himes does not create an exception to the general rule of priority which favors a secured creditor over an unsecured surety. Himes resolved conflicting claims between unsecured subcontractors and an unsecured creditor of a defaulting general contractor. As between the unsecured subcontractors and the unsecured creditor, Himes held, the subcontractors had priority in and to retained contract proceeds. However, the Himes Court did not determine the rights of an unsecured surety vis a vis a secured creditor. Therefore, the Himes decision does not compel or even support the surety’s claim of priority in the instant case.

The result in Himes was based, in part, upon an earlier decision of the Pennsylvania Supreme Court in Jacobs v. Northeastern Corp., supra. There, a general contractor had entered contracts with governmental authorities for the erection of a state building and for the construction of certain state roads. In accordance with state law, the contractor had obtained performance and payment bonds for both projects, the bonds for each project being issued by a different surety. The contractor defaulted in paying claims for labor and material supplied for both projects, and the sureties made payment in compliance with the bonds which they had issued. Each surety then petitioned the court of common pleas to recover monies which the governmental authorities had withheld as retainage. A receiver appointed on behalf of the contractor challenged the petitions and counterclaimed for the retained funds. He contended that the sureties were entitled only to their pro rata shares as creditors, and not, as successors to the rights of the contractor, to the full retainage. The trial court granted the petitions and awarded all retained funds to the sureties. In affirming the award of the trial court, the Supreme Court observed that the right of the sureties to the retained funds rested upon the doctrine of equitable subrogation. Id., 416 Pa. at 419, 206 A.2d at 50. Under that doctrine, “ ‘a surety who pays the debt of another is entitled to all of the rights of the person he paid to enforce his right to be reimbursed.’ ” Id., 416 Pa. at 425-426, 206 A.2d at 53, quoting Pearlman v. Reliance Insurance Co., 371 U.S. 132, 136-137, 83 S.Ct. 232, 235, 9 L.Ed.2d 190, 193-194 (1962). The Court reasoned:

Had the surety [sic] not paid the labor and materialmen, the funds held by the Commonwealth agencies would not have been available to the general creditors. Since the sureties stand in the places of those whose claims they have paid, ..., the funds must be paid to the sureties, just as the funds would have gone, in the absence of a bond, to the labor and materialmen rather than to the general creditors. See Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 229, 17 S.Ct. 142, 147, 41 L.Ed. 412 (1896), quoted in Pearlman.

Id., 416 Pa. at 426-427, 206 A.2d at 54. This was so, the Court concluded, even though the sureties had failed to acquire perfected security interests in the contract proceeds under the Uniform Commercial Code. In rejecting the receiver’s argument that, absent perfected security interests, the sureties’ claim to the proceeds was subordinate to the claims of the contractor’s general creditors, the Court stated:

The contract balance withheld would never have become due and payable to [the contractor] (or its receiver or creditors) as long as [the contractor] defaulted on its obligation to pay labor and materialmen. Payment of the retained balance became due and available only upon performance by the sureties of [the contractor’s] obligations. It is clear that all labor and material claims must be fully discharged before there is entitlement to the full contract payment. In all respects, the result so far as [the contractor] and its creditors are concerned is precisely the same whether the sureties satisfy the unpaid laborers and materialmen, or whether the Commonwealth directly pays the claimants out of the retained funds. Surely, the creditors of [the contractor] are not adversely affected because the sureties were called upon to, and did, perform their undertaking to pay labor and material claims.

Id., 416 Pa. at 428, 206 A.2d at 54 (emphasis in original).

Like Himes, Jacobs did not alter the priority which secured creditors enjoy over unsecured sureties in the property of a defaulting contractor. Jacobs involved the priority between an unsecured surety and the receiver of a defaulting contractor; it did not determine the rights of the surety as against a secured creditor of the contractor. Indeed, the Jacobs Court observed that “[a]s a legal and practical matter, no creditor [of the contractor] could or did advance credit on the basis of the funds withheld by the Commonwealth for payment to labor and materialmen.” Id., 416 Pa. at 428, 206 A.2d at 55.

Nevertheless, the trial court interpreted Jacobs as generally favoring sureties over the contractor’s secured creditors. We reject this interpretation. At most, Jacobs can be construed as suggesting that where a surety has paid labor and materialmen on behalf of a defaulting contractor, the surety becomes equitably subrogated to all rights which the labor and materialmen held as creditors of the contractor, including the right to recover the unpaid contract balance. In such a situation, the Jacobs court indicated, the surety acquired an equitable interest in the unpaid contract balanee which would supersede conflicting claims by the contractor’s unsecured creditors.

In the instant case, it does not appear that the doctrine of equitable subrogation is applicable. It can have no application unless and until the surety has paid the outstanding debts of its principal or sustained some loss by reason of its suretyship. See: Bishoff v. Fehl, 345 Pa. 539, 542, 29 A.2d 58, 60 (1942); Etter v. Industrial Valley Bank and Trust Co., 356 Pa.Super. 502, 506, 515 A.2d 6, 8 (1986); 74 Am.Jur.2d Suretyship § 171. Here, the record does not disclose that USF & G has paid the claims of Apache and GAF for materials sold to Phoenix. The surety, in its brief, acknowledges only that these suppliers have demanded payment and that, because of the payment bond which it issued to Phoenix, it “would be” obligated to pay these claims. See: Brief of Appellee, USF & G, at 3. Unless and until USF & G pays the suppliers, it cannot be subrogated to the rights of the materialmen against the subcontractor.

However, our decision does not rest upon such nonpayment. Even if USF & G had paid for the materials supplied by Apache and GAF, it could only have been subrogated to the rights which the materialmen themselves had in and to the inventory of Phoenix. Apache and GAF were general, unsecured creditors. They had not reserved a security interest in the goods delivered to Phoenix, but had relied upon the credit of the subcontractor. Under the Uniform Commercial Code, their unsecured claims were subordinate to the perfected security interest of the bank.

The dictum in Jacobs which favored a subrogated surety does not require a contrary result in this case. Where a surety has undertaken the obligations of a defaulting contractor, the dictum in Jacobs suggests, the surety should be accorded priority in unpaid contract proceeds. It does not even imply that the surety be given priority in personal property of the defaulting contractor where such property is subject to another’s perfected security interest. Such a rule of law would be ill-considered, for the equities which favor recovery by a surety from the proceeds payable under the principal’s contract have no application to property in which another has a perfected security interest. In the latter situation, the priority established by the Uniform Commercial Code is controlling.

The ratio decidendi of the federal decisions is both helpful and persuasive. In Aetna Casualty & Surety Co. v. Brunken & Son, Inc., supra, the issue before the United States District Court for the District of South Dakota was “whether or not an unsecured surety, who [had been] called upon to perform, acquire[d] priority in the defaulting contractor’s personal property over secured creditors whose security interests ha[d] been perfected in compliance with the South Dakota Uniform Commercial Code provisions.” Id. at 292. The unsecured surety requested the court to extend the priority which the surety enjoyed in retained proceeds under a construction contract to the contractor’s equipment. The court rejected this request. The court concluded that “[t]he practical consequence of [the surety’s] theory [was] nothing less than an appropriation of a secured creditor’s collateral to reimburse the performing surety, a judicial act in contravention of South Dakota law.” Id. at 293. The court reasoned:

The cases providing [the surety] with the foundation from which it launches its arguments are readily distinguishable from the circumstances presented by the immediate suit. Those cases deal with the retained proceeds of a defaulting contractor where the surety fulfills his obligations under payment or performance bonds, and the surety then asserts an interest in those retained funds under the equitable doctrine of subrogation.
The equitable doctrine of subrogation is grounded in the principle that, when one, not a volunteer, pursuant to an obligation, fulfills the duties of another, he is entitled to assert the rights of that other against a third party. By paying the contractor’s debts, the surety acquires the right of substitution to the position of the contractor’s creditors when he pays. The doctrine does not arise from any specific contractual provision but is an assignment created by operation of law to prevent unjust enrichment. [Comment, Equitable Subrogation-Too Hardy a Plant To Be Uprooted By Article 9 of the UCC?, 32 Pitt.L. Rev. 580, 583 (1971)].
It is this subrogation principle that entitles the surety to assume the position of those parties he has made whole. When, on default of the contractor, the surety pays all the bills of the job to date and completes the job, it stands in the shoes of the contractor, laborers, and materialmen insofar as there are receivables due them. National Shawmut Bank of Boston v. New Amsterdam Casualty Co., 411 F.2d 843, 845 (1st Cir.1969). Thus the surety accedes to these retained funds to preclude unjust enrichment.
However, as a general rule a surety cannot retain security as against prior attaching creditors. 72 C.J.S. Principal and Surety § 318 (1951). While the equitable lien theory that [the surety] relies upon has been held to have survived the enactment of the UCC, Warren Tool Co. v. Stephenson, 11 Mich.App. 274, 161 N.W.2d 133 (1968), it has been held more recently that the doctrine of equitable mortgages is no longer necessary or useful in commercial transactions since Article Nine reduces formal requisites to a minimum. Shelton v. Erwin, 472 F.2d 1118 (8th Cir.1973). An equitable lien is recognized as an equitable remedy and the doctrines and maxims which form the foundation of equity jurisprudence are applicable. 51 Am.Jur.2d Liens Sec. 24 (1970). Thus the considerations of unjust enrichment and unconscionable retention of property come to bear. Upon the facts now before this Court I find that [the surety] is not entitled to an equitable lien upon the proceeds from the sale of the [contractor’s] personal property. The [secured creditors] have not been unjustly enriched by acting upon their secured interests and foreclosing upon the secured construction equipment.

Id. at 293-294.

Similar reasoning was employed by the United States District Court for the Middle District of Georgia in In re Merits Equipment Co., 438 F.Supp. 295 (M.D.Ga.1977). In rejecting the surety’s claim to the equipment of a bankrupt contractor, the court distinguished the claim before it from cases where sureties had been accorded priority in retained contract funds over secured creditors.

The equitable rights of the surety in these cases is founded upon the common sense proposition that the contract retainage funds would never become available to any creditor unless the surety completed the project. Stated differently, the contract funds were never really in the possession of the contractor, either as an asset for his general creditors or as collateral for the secured creditor, because the payment of the funds is conditioned upon the completion of the construction project:
This is not an interest in or lien upon, property or funds in the possession or control of the bankrupt [contractor]. Until the obligation to the city [owner] was fulfilled the bankrupt had no claim upon the retained funds.
In re Bray, 127 F.Supp. 627, 628 (D.Conn.1954).
Thus, the surety who completes the project is given first chance at the contract funds even if other creditors of the bankrupt contractor have previously secured their interest in the funds. The consequence of this equitable lien or equitable subrogation doctrine is that an exception is created to the general rule that only those creditors who perfect a security interest by following the U.C.C. or by obtaining a lien judgment can prevail over the trustee in bankruptcy, who, as of the day of the filing of the petition, stands in the position of a judgment creditor.
The basis of any priority must be the result of an equitable lien or right of subrogation. However, the rationale for according such a lien to the surety does not apply in the case of equipment____ [T]he equipment in question was fully in the possession of the bankrupt and ownership was not in any way conditioned upon contractual performance. Stated differently, the surety has done nothing with respect to the bankrupt creditor’s equipment which raises up in the surety an equity superi- or to that of later judgment creditors. The equitable lien protects the surety whose performance enables funds to become available, but in the case of equipment the surety is in no better position than any other unsecured creditor. The surety cannot accede to the general assets of the contractor absent some assignment of title or attachment through a perfected security interests. In conclusion, because no equities arise in favor of the surety with respect to the bankrupt contractor’s equipment, the surety stands as general unsecured creditor who must defer to the [secured creditors]. Aetna Casualty & Surety Co. v. J.F. Brunken & Sons, Inc., 357 F.Supp. 290 (D.S.Dakota 1973).

Id. at 297, 298.

We hold, therefore, that where a creditor has obtained a perfected security interest in personal property owned by a defaulting contractor, the rights of the secured creditor in and to such personal property are superior to and have priority over a claim thereto asserted by an unsecured surety which has been compelled to pay claims made by materialmen against the contractor. When the trial court concluded otherwise, it fell into error.

USF & G also argues that the bank entered an agreement with USF & G to subordinate its security interest in Phoenix’s inventory in favor of the surety, and that USF & G relied thereon when it issued performance and payment bonds to Phoenix. Under this theory, even if the bank’s security interest would entitle it to priority in the property of Phoenix, that superior right would have been subordinated to the claim of USF & G.

Although this issue was the subject of written and oral evidence at the hearing before the trial court, the court did not address the same in its decision. Having determined — erroneously, we have held — that the rights of USF & G were superior to those of the bank, the trial court did not make findings pertinent to USF & G’s contention that the bank had agreed to subordinate its rights in and to the inventory of its creditor. Therefore, it is necessary that we remand in order that the trial court may determine whether the bank agreed to subordinate its security interest in the inventory of its creditor to the claim of the surety which was called upon to satisfy claims of materialmen.

Reversed and remanded for determination of unresolved issues. Jurisdiction is not retained.

      . See: Miller Act, 40 U.S.C. § 270a.

      . Phoenix eventually filed a petition in bankruptcy.

      . USF & G argues that the bank’s security interest did not attach to materials supplied by GAF where the purchase order for these items had been signed not only by Phoenix but also by the general contractor. We reject this argument. According to the Uniform Commercial Code, the bank’s security interest in Phoenix’s inventory would attach as soon as Phoenix had acquired "rights in the collateral.” See: 13 Pa.C.S.A. § 9203(a)(3). Although Phoenix did not ever pay for the materials, it had acquired rights in these goods when it obtained possession thereof. See: In re Pinettas-Pasco Wholesale Tire Co., 36 B.R. 559 (Bankr.M.D.Fla.1983); Galleon Industries, Inc. v. Lewyn Machinery Co., 50 Ala.App. 334, 279 So.2d 137 (1973); First National Bank of Arizona v. Carbajal, 132 Ariz. 263, 645 P.2d 778 (1982); Babson Credit Plan, Inc. v. Cordele Production Credit Association, 146 Ga.App. 266, 246 S.E.2d 354 (1974); Thrift, Inc. v. A.D.E, Inc., 454 N.E.2d 878 (Ind.App.1983). Phoenix’s rights in these materials were no less real merely because the general contractor may also have acquired rights therein.

      . USF & G has asserted one final issue. It contends that we should dismiss this appeal and affirm the award of the trial court in accordance with the escrow agreement entered into by the parties because the bank consented therein to abide by the trial court’s distribution of the proceeds. This issue, however, was not raised by USF & G at any time before the trial court; and, therefore, it is not properly before this Court for review. See: Commonwealth v. National Federation of the Blind, 471 Pa. 529, 536, 370 A.2d 732, 736 (1977); Keystone Building Corp. v. Lincoln Savings and Loan Corp., 468 Pa. 85, 91, 360 A.2d 191, 194 (1976); Kovach v. General Telephone Co. of Pennsylvania, 340 Pa.Super. 144, 149, 489 A.2d 883, 885 (1985).


text:
    524 A.2d 966
    GENIE TRUCKING LINE, INC., Appellant, v. AMERICAN HOME ASSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1987.
    Filed April 24, 1987.
    Petition for Allowance of Appeal Denied Aug. 26, 1987.

      James D. Flower, Jr., Carlisle, for appellant.
    Kenneth F. DeMarco, Philadelphia, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

The issue in this appeal is the correct computation of premiums owed by Genie Trucking Lines, Inc. (Genie) for workers’ compensation coverage provided by a policy of insurance issued by American Home Assurance Company (American Home). Genie contended that it had overpaid the premiums by $7,506.09 and commenced an action to recover the same. American Home contended that the premiums had been underpaid by $17,764.00 and counterclaimed for that amount. After trial without jury, the court found that Genie was indebted to American Home in the amount of $17,764.00 and, following denial of Genie’s post-trial motion, judgment was entered in favor of American Home for that amount. Genie appealed. We affirm.

G. Kenneth Bishop was president and one of three stockholders of Genie. Shortly after becoming president in 1981, Bishop requested the issuance of a policy of workers’ compensation insurance from James E. Bankes, a member of the Rollins-Burdick-Hunter Agency. Bishop told Bankes that Genie regularly utilized the services of trucking contractors whose trucks were driven by drivers employed by the trucking contractors, and that he wanted a policy of insurance which did not provide coverage for the contractors or their drivers. Bankes, despite diligent efforts, was unable to find an insurance company willing'to issue workers’ compensation coverage without charging a premium because of the exposure created by potential claims on behalf of the trucking contractors and their drivers. Bankes ultimately obtained a policy from American Home, for which Genie was billed $8,776.00. This premium was determined by including trucking contractors and their drivers in the premium rate base. It was paid by Genie.

Thereafter, an audit was conducted to verify the number of persons covered, together with their remuneration, so that the precise amount of the premium could be determined. After the audit had been completed, Bishop became displeased because the contractors and their drivers had been included in the premium rate base. Bishop requested another audit and displayed to the auditor the lease agreements with trucking contractors. He was thus able to persuade the auditor that the trucking contractors were independent contractors and that their drivers were not employees of Genie. In reliance thereon, Genie contended that it had overpaid the correct premium ($1,269.91) by $7,506.09. American Home denied that a refund was owed. It notified Genie that the premium had initially been underestimated and that the correct premium was $26,540.00. Based on this computation, Genie allegedly owed a balance of $17,764.00.

The dispute at trial was whether the trucking contractors and their drivers were to be included in the premium rate base. According to the language of the policy, coverage was provided for “clerical employees and truckmen,” and the premium was to be determined according to whether the truck drivers “may render the company liable under the policy for injury to or death of such person in accordance with the workmen’s compensation law.” The trial court found that potential liability did exist with respect to the drivers of the trucking contractors and that those drivers, therefore, were properly included in the premium rate base.

Genie argues that its contracts with trucking contractors contain terms which make the truckers independent contractors. Therefore, the argument continues, the drivers employed by the trucking contractors cannot be deemed employees of Genie and cannot present valid claims under the Workers’ Compensation Law.

In Mature v. Angelo, 373 Pa. 593, 97 A.2d 59 (1953), the Supreme Court stated:

Where one is engaged in the business of renting out trucks, automobiles, cranes, or any other machine, and furnishes a driver or operator as part of the hiring, there is a factual presumption that the operator remains in the employ of his original master, and, unless that presumption is overcome by evidence that the borrowing employer in fact assumes control of the employe’s manner of performing the work, the servant remains in the service of his original employer____
Facts which indicate that the servant remains the employe of his original master are, among others, that the latter has the right to select the employe to be loaned and to discharge him at any time and send another in his place, that the lent servant has the skill of a technician or specialist which the performance of the work requires, that the hiring is at a rate by the day or hour, and that the employment is for no definite period____

Id., 373 Pa. at 596-597, 97 A.2d at 61. See: Patterson v. Workmen’s Compensation Appeal Board, 86 Pa.Cmwlth. 608, 612, 485 A.2d 886, 889 (1985); Lego v. Workmen’s Compensation Appeal Board, 66 Pa.Cmwlth. 593, 596, 445 A.2d 1324, 1325 (1982); Martin Trucking Co. v. Workmen’s Compensation Appeal Board, 30 Pa.Cmwlth. 367, 371, 373 A.2d 1168, 1169 (1977).

The relevant criteria for distinguishing between an employer and independent contractor were enumerated by the Commonwealth Court in J. Miller Co. v. Mixter, 2 Pa. Cmwlth. 229, 277 A.2d 867 (1971), as follows:

The courts have not formulated a hard and fast definition for the determination of whether any given relationship is one of independent contractor or that of employer-employee. They have, however, set forth indicia of such relationship to be used as guides in making such a determination, some of which are: Control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one employed is engaged in a distinct occupation or business; which party supplies the tools; whether payment is by the time or by the job; whether work is a part of regular business of the employer, and also the right of employer to terminate the employment at any time____ These indicia are not to be considered as circumstantial in nature and whether some or all of them exist in any given situation is not absolutely controlling as to the outcome; each case must be determined on its own facts.

Id. at 232, 277 A.2d at 869 (citations omitted).

Genie contends that the agreements with the trucking contractors provide expressly that the truckers shall have control over the operation of a leased vehicle and the person operating the same. However, the terms of the lease are but one factor to be considered, and each case must be decided on its own facts. If Genie were in fact to exercise control over the driver of a truck, according to the decided cases, the provisions of the agreement of lease for a truck would not bar a finding of the existence of an employer-employee relationship. Cf. Patterson v. Workmen ’s Compensation Appeal Board, supra 86 Pa.Cmwlth. at 614, 485 A.2d at 889 (despite provision in lease that owner/lessor relinquished all control over leased vehicle to carrier/lessee, court found that driver was employee of lessor and not lessee because, in fact, control had not been transferred). This Court cannot, as Genie would have us do, determine solely from the provisions of Genie’s standard lease, that none of the trucking contractors or their drivers could assert a successful claim against it for worker’s compensation benefits.

The evidence produced at trial indicated that despite the provisions of the lease, Genie required contractors and drivers to complete forms pertaining to their driving ability and former experience and could accept or reject them on the basis of this information. Genie also tested drivers and was able to terminate a driver’s employment for enumerated reasons. Moreover, drivers were not allowed to drive for another carrier without Genie’s prior approval and were required to carry documents identifying Genie as the carrier. Occasionally, Genie advanced funds to drivers to cover trip expenses, and on every trip, Genie required the drivers to report to it. The vehicles leased by Genie carried permanently affixed decals bearing Genie’s name. Finally, there was no evidence that the employees of the trucking contractors had been covered by other valid workers’ compensation insurance.

The trial court found from the evidence that a claim for workers’ compensation benefits by a driver was a distinct possibility and that the trucking contractors and their drivers, therefore, were properly to be included in determining the amount of the premiums to be paid for coverage. That an employer-employee relationship between Genie and its truckers could be found is supported by the decided cases. See and compare: North East Express, Inc. v. Workmen’s Compensation Appeal Board, 77 Pa.Cmwlth. 255, 465 A.2d 724 (1983) (court found that claimant-driver was employee of carrier-lessee despite fact that lessee did not specify routes to be taken in hauling loads where control of driver was exercised in other ways); Lego v. Workmen’s Compensation Appeal Board, supra (court upheld referee’s finding that decedent-driver had been employee of carrier-lessee where vehicle had borne decal logo of lessee, lease had given lessee right to control vehicle, lessee had right to specify routes taken by decedent and decedent had been required to report to lessee during trip); North Penn Transfer, Inc. v. Workmen’s Compensation Appeal Board, 61 Pa.Cmwlth. 469, 434 A.2d 228 (1981) (court concluded that decedent-driver had been employee of lessee where decedent had exclusively driven vehicles leased to lessee, decedent had been required to keep log book in lessee’s name, lessee’s agent had contacted decedent when jobs were to be assigned and had designated the routes to be taken, lessee could terminate lease if lessor did not fire a driver at lessee’s request and lessee had control over who could drive the trucks leased to it). In view of the decided cases, we do not perceive error in the trial court’s determination that employees of the trucking contractors were potential workers’ compensation claimants.

Genie contends further that the trial court erred by receiving parol evidence to assist it in determining the meaning of the policy. It contends that the court should have made its determination solely on the basis of the provisions contained in the written policy, which disclosed the intent of the parties and the proper means for calculating the premium due.

It is well settled in Pennsylvania law that in the absence of fraud, accident or mistake, parol evidence as to preliminary negotiations or oral agreements is not admissible in evidence if it adds to, modifies, contradicts or conflicts with the written agreement between the parties. Servomation Mathias Pa., Inc. v. Lancashire Hall, Inc., 442 Pa. 602, 276 A.2d 547 (1971); Nicolella v. Palmer, 432 Pa. 502, 248 A.2d 20 (1968); Keyser v. Margolis, 422 Pa. 553, 223 A.2d 13 (1966). However, it is equally well settled that this general rule does not apply where the agreement is ambiguous. In such a situation parol evidence is admissible to explain the agreement and resolve ambiguities to ascertain the meaning of the parties. Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001 (1980 3rd Cir.); Silver v. Gene K. Kolber Advertising, Inc., 518 F.Supp. 939 (E.D.Pa.1981); In Re Fessman’s Estate, 386 Pa. 447, 126 A.2d 676 (1956); Pavlich v. Ambrosia Coal Co., 441 Pa. 210, 273 A.2d 343 (1971);

Kohn v. Kohn, 242 Pa.Super. 435, 364 A.2d 350 (1976). Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 29, 473 A.2d 584, 592 (1984).

In the instant case, Genie contended that the parties had not intended to provide workers’ compensation coverage for trucking contractors and drivers and offered extrinsic evidence to show this to be the case. The trial court received such evidence. Conversely, American Home contended that the contractors and drivers were included in the policy under the category of “truckmen,” and it, too, offered extrinsic evidence to support its interpretation of the policy. We find no error in the trial court’s receiving the extrinsic evidence offered by American Home. The existence of a latent ambiguity became apparent when the coverage for “truckmen” was considered to determine whether it included trucking contractors and their drivers. A similar ambiguity became apparent when the coverage provided by the policy was made the basis for determining the amount of the premium owed. Genie must have been aware of this, for it, too, offered evidence of extrinsic circumstances to assist the court in interpreting the policy language. The trial court did not err in receiving evidence of extrinsic circumstances from American Home as well.

Judgment affirmed.

      . The term of the policy was for one year, commencing July 4, 1981.

      . Specifically, the policy purchased by Genie provided that the personnel to be covered in Pennsylvania included clerical office employees and "truckmen” and that the personnel to be covered in Alabama included clerical office employees and "truckmen NOC-all employees and drivers.” The policy further provided that the premium was to be determined by remuneration and contained the following provision:
      When used as a premium basis, "remuneration” means the entire remuneration ... earned during the policy period by (a) all executive officers and other employees of the insured engaged in operations covered by this policy, and (b) any other person performing work which may render the company liable under this policy for injury to or death of such person in accordance with the workmen’s compensation law. "Remuneration” shall not include the remuneration of any person within division (b) foregoing if the insured maintains evidence satisfactory to the company that the payment of compensation and other benefits under such law to such person is secured by other valid and collectible insurance____

      . The fact that many of these requirements were mandated by state and federal law would not operate to defeat a finding that an employer/employee relationship existed for workers’ compensation purposes. See: Rugh v. Keystone-Lawrence Transfer & Storage Co., 197 Pa.Super. 526, 179 A.2d 242 (1962).