author: CERCONE, Judge: FORD ELLIOTT, Judge,

text:
    618 A.2d 956
    MELE CONSTRUCTION COMPANY, INC., Appellant, v. CROWN AMERICAN CORPORATION.
    Superior Court of Pennsylvania.
    Argued July 28, 1992.
    Filed Nov. 19, 1992.
    Reargument Denied Jan. 29, 1993.

      W. Boyd Hughes, Scranton, for appellant.
    Arthur L. Piccone, Wilkes-Barre, for appellee.
    Before MONTEMURO, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order granting preliminary objections in favor of appellee Crown American Corporation (hereinafter “Crown American” or “appellee”) and against appellant Mele Construction Company, Inc. (hereinafter “Mele” or “appellant”). The lower court’s order also granted appellee’s motion to strike, a mechanic’s lien filed by Mele. For the reasons set forth below, we affirm.

The instant appeal stems from a dispute concerning the construction of the- Viewmont Mall in Lackawanna County. As the trial court explained, Mele entered into five (5) written agreements with Crown American on July 10, 1990. Under these agreements, Mele agreed to provide labor, services and materials upon five parcels of land owned by Crown American “and more commonly described as the Viewmont Mall.’ ” Trial court opinion of 2/27/92 at 1. On June 30, 1991, Mele filed a mechanics’ lien pursuant to the Mechanics’ Lien Law of 1963, 49 P.S. § 1101 et seq. Id. Crown American responded with preliminary objections and a petition to strike the mechanics’ lien on the grounds that Mele had entered into a stipulation against liens in conjunction with each of the agreements covering work on the Viewmont Mall property: The trial court sustained the prehminary objections on October 31, 1991. Mele thereafter filed a timely appeal with this court. Mele also filed a motion for reconsideration with the trial court, raising for the first time the issue of fraud in the inducement regarding the written agreements with Crown American. The lower court denied Mele’s motion for reconsideration.

Appellant has raised three issues for our consideration, whether the lower court erred in granting preliminary objections: (1) on the basis of a waiver of liens dehors the record; (2) without permitting discovery or conducting a hearing when there were “substantial factual issues” as to whether the waiver of liens refers to a particular parcel of land; and (3) when there were “substantial factual issues” regarding the enforceability of a waiver of liens due to fraud in the inducement. Appellee has filed a reply brief which directly responds to appellant’s contentions on appeal. Additionally, Hartford Fire Insurance Company (hereinafter “Hartford”) has filed an amicus brief on behalf of appellant. Hartford argues that the lower court erred in finding that appellee met its burden of clearly demonstrating that the waivers executed by Mele refer to the specific property against which Mele asserted its mechanics’ lien claim. Hartford also contends that it was error to strike Mele’s mechanics’ lien in light of Mele’s assertion of fraud in the inducement of the waiver. We shall consider these claims sequentially.

In the context of an order sustaining preliminary objections and granting a petition to strike a mechanics’ lien, our scope of review is as follows:

A preliminary objection in the nature of a demurrer is an assertion that a pleading fails to set forth a cause of action upon which relief can be granted. The preliminary objection should be overruled if the allegations of the complaint state a cause of action under any theory of law. When reviewing the lower court’s sustaining of a preliminary objection in the nature of a demurrer, all facts set forth in the challenged complaint must be accepted as true as well as all inferences reasonably deducible from these facts.

Patrick McGuigan Roofing v. Kallman, 405 Pa.Super. 586, 588, 592 A.2d 1368, 1369 (1991) (citations omitted). If the trial court has sustained preliminary objections challenging the validity of a mechanics’ lien and has thereby effectively dismissed a suit or denied a claim, the order should be upheld only in cases which are clear and free from doubt. Id.; Chambers v. Todd Steel Pickling, Inc., 323 Pa.Super. 119, 124, 470 A.2d 159, 162 (1983).

When evaluating the grant of a motion to strike a mechanics’ lien, the Superior Court must remain mindful of the fact that such a lien “is a creature of statute.” King’s Oak Liquidators v. Bala Cynwyd Hotel Associates, 405 Pa.Super. 250, 252, 592 A.2d 102, 102 (1991). “The Mechanics’ Lien Law is to be given a strict construction because it is in derogation of the common law and provides a special remedy in favor of a unique class of creditors.” Id., 405 Pa.Super. at 253, 592 A.2d at 103. We agree with amicus curiae Hartford that we are not bound by the trial court’s conclusions of law. DeAngelo v. Fortney, 357 Pa.Super. 127, 129, 515 A.2d 594, 594 (1986). However, we note that upon the sustaining of preliminary objections, “a reviewing court must regard as true all well pleaded facts and the reasonable inferences deducible therefrom.” Id. (quoting Klein v. Raysinger, 504 Pa. 141, 144, 470 A.2d 507, 508 (1983) (emphasis added)).

Appellant’s first argument is two-fold. Appellant initially contends that appellee’s preliminary objections were not properly before the trial court and secondly that the five no-lien stipulations titled “Contractor’s Waiver of Liens Agreement” were dehors the record and thus could not be considered by the trial court. The Mechanics’ Lien Law of 1963 specifically authorizes the filing of preliminary objections:

Procedure for contesting claim; preliminary objections

Any party may preliminary object to a claim upon a showing of exemption or immunity of the property from lien, or for lack of conformity with this act. The court shall determine all preliminary objections. If an issue of fact is raised in such objections, the court may take evidence by deposition or otherwise. If the filing of an amended claim is allowed, the court shall fix the time within which it shall be filed. Failure to file an objection preliminarily shall not constitute a waiver of the right to raise the same as a defense in subsequent proceedings.

49 P.S. § 1505 (emphasis added). Appellant, without citing any direct authority for the proposition, has argued that the terms “exemption” and “immunity” in section 1505 directly relate to section 1303 of the Mechanics’ Lien Law which specifies five sets of circumstances under which mechanics’ liens may not be filed. See 49 P.S. § 1303 (Lien not allowed in certain cases). Under appellant’s theory, section 1505 would permit preliminary objections to be filed only in relation to exemptions and immunities already granted by section 1303. Absent compelling authority requiring us to adopt appellant’s novel interpretation of the Mechanics’ Lien Law, we decline to go against the plain language of the statute which permits preliminary objections to be filed by any party who can demonstrate that the property in question is subject to some type of exemption or immunity from lien. On its face, section 1505 is simply not limited to those categories of exemption or immunity delineated by section 1303. See also Q-Dot, Inc. v. Atlantic City Electric Co., 289 Pa.Super. 155, 432 A.2d 1098 (1981) (ruling by implication that preliminary objections to a mechanic’s lien filed under section 1505 were properly before the trial court although not based on a claim cognizable under section 1303).

The second half of appellant’s initial argument is that the trial court improperly considered matters dehors the record when addressing appellee’s preliminary objections. Specifically, appellant contends that the five “waiver of liens agreements” signed by officers of Mele Construction Company are not part of the official record in the instant case. Thus, according to appellant, the waiver of liens agreements were not properly before the trial court. Our inspection of the record certified to this court belies appellant’s contention.

Crown American filed a document titled “Defendant’s Preliminary Objections and Motion to Strike Claimant’s Mechanics’ Lien Claim” which was docketed August 21, 1991. Appended to this document as “Exhibit A” are copies of the contractor’s waiver of liens agreement which appellant incorrectly alleges were never properly presented to the trial court. As the waiver of liens agreements were actually made part of the official lower court record, the matter contained therein was not dehors the record and the trial judge was free to consider this information in ruling on appellee’s preliminary objections. See Q-Dot, Inc. v. Atlantic City Electric Co., supra (information in waiver of liens provisions incorporated as part of official trial court record could be considered by lower court when ruling on preliminary objections to mechanics’ lien claim); John B. Kelly, Inc. v. Phoenix Plaza, Inc., 249 Pa.Super. 413, 378 A.2d 363 (1977) (preliminary objections may be used to raise the issue of a waiver of liens agreement which has been made part of trial court record). See also Martin v. PennDOT, 124 Pa.Commw. 625, 556 A.2d 969 (1989) (defendant may properly annex copies of written agreements and appendages thereto where plaintiff avers existence of written agreement and relies upon it to establish his cause of action).

In this context, amicus curiae Hartford explains that the lower court was empowered under the Mechanics’ Lien Law to take evidence to resolve the factual disputes raised by the preliminary objections. This is true. However, both appellant and Hartford appear to believe that a trial court must supplement the pleadings once a defendant files preliminary objections. This is not true. “If an issue of fact is raised in such objections, the court may take evidence by deposition or otherwise.” 49 P.S. § 1505 (emphasis added). Nothing in section 1505 requires a trial court to either hold a hearing or to solicit depositions.

Appellant next argues that the trial court erred by granting appellee’s preliminary objections without permitting discovery or conducting a hearing because there are “substantial factual issues” concerning the waiver of liens agreements. Specifically, appellant questions whether the parcels of land covered by the waiver of liens agreements to which appellee’s filings refer were identified for the trial court with sufficient particularity. This court has explained that the party asserting waiver of a mechanics’ lien “must clearly prove its existence.” Patrick McGuigan Roofing v. Kallman, 405 Pa.Super. at 588, 592 A.2d at 1369. However, there is no prescribed formula for identification of the situs covered by a waiver of liens; the document barring liens must merely contain sufficient information to provide notice to a contractor or subcontractor that the location involved is in fact the one for which he or she supplied material and/or labor. Id, 405 Pa.Super. at 589, 592 A.2d at 1369.

It appears to be appellant’s theory that only a metes and bounds description can provide a sufficiently clear identification to form the basis of a waiver of liens agreement for a particular work site. This is a misreading of Patrick McGuigan Roofing, supra, which simply recognizes that one method of describing a location with particularity is via the legal description in a deed. Nothing in that case even implies that only a metes and bounds description will suffice.

Mindful of the appropriate standard of review previously set forth, we have carefully inspected the record certified to this court. The five “contract purchase orders” into which Mele entered plainly identify the situs of Mele’s work for Crown American as “Viewmont Mall Expansion and Renovation.” Furthermore, the contractor’s waiver of liens agreements, which were signed by an officer of Mele Construction Company and which are part of the certified record, specifically and explicitly indicate that they pertain to the “Viewmont Mall Expansion.” We agree with appellant that each waiver of liens agreement refers to the fact that the situs of the “Viewmont Mall Expansion” is further identified as “real estate described in Exhibit ‘B’.” This exhibit, which purportedly comprises a metes and bounds description of the job site, was apparently attached to each original waiver document. For whatever reason, neither party introduced a copy of “Exhibit ‘B’ ” into the trial court record which was ultimately certified to this court.

The five waiver of liens agreements in the certified record clearly and plainly specify that Mele Construction Company waived all rights to file any mechanics liens in connection with work performed for Crown American on the Viewmont Mall Expansion and Renovation. Appellant has not alleged that the construction work which provides the basis for its mechanics’ lien claims was performed for Crown American in conjunction with any project other than the Viewmont Mall Expansion. Appellant merely contends that the metes and bounds description allegedly contained in the missing “Exhibit ‘B’ ” fails to enclose all the land on which the Viewmont Mall Expansion has been constructed. Under these circumstances, we see no indication that there is any true controversy between the parties regarding the location of the work site covered by the waiver of liens agreements. Accordingly, we find no basis on which to overturn the decision of the trial court.

The final issue raised by appellant is that the trial court erred in granting appellee’s preliminary objections despite the existence of a substantial factual dispute concerning the enforceability of the waiver of liens agreements due to fraud in the inducement committed by Crown American. Appellant did not raise this claim in its original filing. It appears that appellant was unable to discern the existence of the alleged fraud until after the trial court granted appellee’s preliminary objections- on October 31, 1991. Appellant filed a motion for reconsideration on November 18, 1991 raising the question of fraud in the inducement for the first time.

Pennsylvania law is clear that fraud may invalidate even a recorded waiver of lien agreement, at least as between the signatories to the waiver. Stringert & Bowers, Inc. v. On-Line Systems, Inc., 236 Pa.Super. 196, 200-01, 345 A.2d 194, 196 (1975). In Stringert, this court followed the standard for determining the existence of fraud in a mechanics’ lien context which was established by the Pennsylvania Supreme Court prior to the enactment of the Mechanics’ Lien Law of 1963. Id. A waiver of liens is not valid as between the contractor and a fraudulent owner “where the contract is made in bad faith for the purpose of misleading and defrauding subcontractors and materialmen.... ” Id., 236 Pa.Super. at 200, 345 A.2d at 196 (quoting Toll v. Beckerman, 299 Pa. 1, 7, 148 A. 904, 905 (1930)).

In Pennsylvania, the courts have traditionally held that a plaintiff must establish five elements in order to demonstrate the existence of fraud: (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker that the recipient will thereby be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient as the proximate result. Brindle v. West Allegheny Hospital, 406 Pa.Super. 572, 574, 594 A.2d 766, 768 (1991). The second element refers to the intent or scienter required for an utterance to be considered fraudulent. Id.

This intent has been characterized as knowing or reckless, and applies when the maker of the utterance knows or believes that the matter is not as he or she represents it to be, does not have the confidence in the accuracy of the representation that is stated or implied, or knows that there is not the basis for the representation that is stated or implied.”

Id., 406 Pa.Super. at 574-75, 594 A.2d at 768. Our scrutiny of the information presented to the lower court discloses that appellant has not addressed the scienter requirement necessary to show fraud.

Appellant hypothesizes that, despite appellee’s assurances to the contrary, Crown American never possessed adequate financing for the Viewmont Mall expansion project. If true, appellee would have made a misrepresentation and thus the first element of fraud would be satisfied. However, appellant is still required to show that at the time it was made, the misrepresentation was uttered under the knowledge or belief that it was false, that its maker had no confidence in the accuracy of the representation, or knew that there was no factual basis for the representation. Id.

Appellant’s entire allegation of fraud in its motion for reconsideration consists of the following statements:

10. There is substantial evidence that the alleged lien waivers were procured through misrepresentations by Crown American about project financing. For this reason, the enforceability of the lien waivers cannot be determined on preliminary objections. The waiver is invalid due to fraud in its inducement.
11. This motion is supported by a Memorandum and by the Affidavits of John Mele, Sylvio Mele and Bert Occulto, all of which are incorporated by reference herein.

Motion for reconsideration filed November 18, 1991 at 3 (emphasis in original). The memorandum in support of reconsideration filed by appellant merely states that in retrospect, certain statements made by appellee “no longer appear to be true.” Memorandum in Support of Claimant’s Motion for Reconsideration filed November 18, 1991 at 8. The closest approach appellant made to addressing the question of the intent behind appellee’s statement occurred in the affidavit of John Mele which contains the following allegation: “Based upon what I have learned since the execution of the contract agreements in September 1990, I do not believe that Crown American ever had the ‘monies ... in place ... ’ to pay Mele for its work.” Affidavit filed November 18, 1991 (ellipsis in original). These averments simply do not rise to the level necessary to demonstrate the second element of fraud.

Both the appellant’s brief filed by Mele and the amicus brief filed by Hartford discuss the elements of fraud somewhat more fully than did the filings presented to the trial court. However, these briefs still lack the required specificity. We note, moreover, that are not free to consider matters which are in essence raised for the first time on appeal. Pa.R.A.P., Rule 302(a). Under these circumstances, there is simply no basis on which we may overrule the trial court.

Order affirmed.

FORD ELLIOTT, J., files a dissenting statement.

FORD ELLIOTT, Judge,

dissenting:

I respectfully dissent to that part of the majority’s opinion which holds that the waiver of liens agreement was clear as to precisely how much and what land was contemplated by the agreement.

The majority notes on pages 960 and 961 of its opinion that the basis of appellant’s argument, the so-called “Exhibit B,” which allegedly limited the waiver of liens to some plot of land somewhat smaller than the entire Viewmont Mall project, was never introduced into the official record. The majority correctly recites the rule that we may not consider evidence not made a part of the record. However, we find other evidence which is of record that at least presents the issue that the waiver of liens agreement is ambiguous in scope. Specifically, the “Defendant’s Brief in Reply to Claimant’s Brief in Opposition to Preliminary Objections” admits that “the entire tract of land for the Viewmont Mall inadvertently was not included in the legal descriptions for the stipulations against liens.” Additionally, the Stipulation of Counsel signed by both sides clearly implies that there was some amount of land to which appellant was entitled to a lien and to which appellant had not granted a waiver.

While the evidence which is of record is insufficient for us to broadly rule in appellant’s favor, it should at least permit appellant to survive preliminary objections. I would remand for a hearing to determine exactly what land was described and contemplated by the parties in the execution of the waiver of liens.

      . We are cognizant of the fact that appellant has cited authority which would seemingly bolster his contentions. However, the appellate cases cited were either decided before the enactment of the Mechanics’ Lien Law of 1963, or concern factual scenarios played out prior to the effective date of this law.

      . It is well settled that the Superior Court cannot consider evidence which has not been made a part of the certified record. See, e.g., Frank
        v. Frank, 402 Pa.Super. 458, 587 A.2d 340 (1991) (for purposes of appellate review, that which is not of record does not exist).

      . We are cognizant of appellant's argument that our holding in John B. Kelly, Inc. v. Phoenix Plaza, Inc., 249 Pa.Super. 413, 378 A.2d 363 (1977) would compel the trial court in the instant case to hold a hearing before striking the mechanics' lien claim. In John B. Kelly, Inc., the parties entered into two contracts: one which contained a waiver of liens agreement and one which incorporated no such provision. The plaintiff in John B. Kelly, Inc. alleged that the second contract had replaced the original contract and therefore the original waiver provision was null and void. In that case, Superior Court remanded for a determination of whether the original waiver agreement had been invalidated. Appellant has not alleged the existence of contracts in the instant case which omit the waiver of liens provision. The ruling in John B. Kelly, Inc. is therefore inapposite to the facts of the case sub judice.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    618 A.2d 962
    Andrea BOYCE and Brian Boyce v. ST. PAUL PROPERTY AND LIABILITY INSURANCE CO., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1992.
    Filed Nov. 19, 1992.
    Reargument Denied Jan. 29, 1993.

      James C. Haggerty, Philadelphia, for St. Paul Property and Liability Ins. Co.
    Michael W. McCarrin, Media, for Andrea and Brian Boyce.
    Before CIRILLO, MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

Appellant St. Paul Property & Liability Insurance Company appeals from a final order, denying its petition to vacate and/or modify an amended arbitration award of one million dollars in favor of Appellee Boyce. Boyce crossappeals from the same order. For the reasons stated below, we affirm.

Appellee, Andrea Boyce, initiated the present action, seeking to recover uninsured motorist benefits for injuries she sustained in a February 3, 1986 motor vehicle accident which occurred in Philadelphia. At the time of the accident, Boyce was a passenger in an ambulance owned and operated by Paramedical Ambulance Service, Inc. and insured by St. Paul. She was monitoring a sick neonate child being transported to Philadelphia College of Osteopathic Hospital (“PCOM”), where she was head neonate and pediatric nurse. She did not work for the ambulance company. PCOM had contracted with Paramedical to perform the transport.

The accident occurred when an uninsured motorist, Louis Pocco, struck the ambulance broadside. The impact of the collision threw Boyce into the doors of the ambulance, striking her head, neck, shoulders and back. Immediately after impact, the ambulance driver saw Boyce lying in a prone position on the floor of the ambulance. A second ambulance transported her to PCOM, where she was treated for a concussion and sent home. After experiencing increased dizziness, nausea, and pain, Boyce was hospitalized. She was subsequently released, but continues to suffer from the permanent damages received.

Following the accident, Boyce instituted an action in the Court of Common Pleas of Philadelphia County, seeking recovery of damages in tort. Named defendants included Paramedical, the ambulance driver, and Pocco. In addition, she made demand upon St. Paul for recovery of uninsured motorist benefits.

Paramedical’s insurance policy stated that all disputes regarding uninsured motorist benefits were to be resolved by arbitration upon written demand by either party. After St. Paul refused to pay the uninsured motorist claim, Boyce demanded arbitration in Philadelphia County and named Philadelphia attorney, Mayer Horowitz, as her arbitrator. When St. Paul refused to name an arbitrator, Boyce filed a petition in Philadelphia Common Pleas Court for appointment of the defense and neutral arbitrators. Immediately thereafter, St. Paul chose a Philadelphia attorney, Robert Coleman, as its arbitrator, and obtained an order, compelling Boyce to submit to a physical examination by an ENT specialist.

Boyce subsequently objected to Coleman’s appointment, since his firm represented St. Paul. St. Paul then withdrew Coleman and appointed James Palmer, a Bucks County attorney.

In addition, St. Paul requested arbitration in Bucks County. St. Paul argued that both the policy and Pennsylvania Uniform Arbitration Act required arbitration in the county in which the protected person/Boyce lives. At the time of the accident, Boyce resided in Delaware County. During pendency of the uninsured motorist claim, she lived in Bucks County. At the time of the arbitration hearing, she was a resident of California. Since the parties could not agree on a neutral arbitrator, Boyce next filed an amended petition in Philadelphia Common Pleas Court, asking the court to appoint the arbitrator. On June 21, 1990, the court appointed a Philadelphia attorney, Melvin Greenberg, as chairman of the arbitration panel, and ordered that the arbitration hearing take place in Philadelphia, in accordance with common law.

The arbitration hearing was held in Philadelphia on September 27, 1990, September 28, 1990, October 18, 1990 and November 24, 1990. During the hearing, St. Paul stipulated that Pocco was uninsured and that he was the substantial cause of the accident. The panel determined that the insurance policy provided $1,000,000 in uninsured motorist coverage. On December 20, 1990, the arbitrators entered an award in favor of Andrea Boyce in the amount of $1,393,500, and awarded her husband, Brian Boyce, $90,000.

On July 8, 1991, the trial court vacated the award since it exceeded the $1,000,000 policy limit. The court ordered that a rehearing be held for the purpose of re-assessing damages. On October 18, 1991, the arbitration panel reduced Boyce’s award to $1,000,000 and her husband’s award to zero. Thereafter, St. Paul sought to have the amended arbitration award vacated. When its petition to vacate and/or modify was denied, it filed this appeal.

The first issue raised by appellant is that the Philadelphia Court of Common Pleas and the Philadelphia arbitrators had no authority to hear the present action in Philadelphia County. The insurance contract in question provided that arbitration was to take place in the “county where the protected person lives.” The protected person in the instant action, appellee, lived in Delaware County at the time of the accident, Bucks County at the initiation of the arbitration dispute and subsequently in Los Angeles County, California. Although appellant correctly asserts that under the insurance contract the correct venue for the arbitration should have been in one of these towns, appellant has failed to preserve this issue for our review.

In Clark v. State Farm Auto Insurance, 410 Pa.Super. 300, 599 A.2d 1001 (1991), this court refused to review a challenge to venue in a similar case involving a petition to compel arbitration. In refusing to review the claim, we stated:

A petition to compel arbitration is the functional equivalent of of a complaint. The proper way to challenge venue in a civil action is through a preliminary objection: Pa.R.C.P. Rule 1006 provides in pertinent part:
(e) Improper venue shall be raised by preliminary objection and if not so raised shall be waived ...
Instead of first filing a preliminary objection to challenge venue, appellant proceeded directly to its responsive pleadings. The failure to file appropriate preliminary objections to contest improper venue results in waiver of the challenge.

Id. at 311, 599 A.2d 1001, 1006 (1991). We find this case to be indistinguishable from the Clark case, and therefore find that appellant has waived this issue.

Appellant’s second and fourth argument on appeal is that the arbitrators exceeded their authority in entering an amended arbitration award without a re-hearing as ordered by the trial court. In its July 8 order vacating the arbitration award, Judge Cohen ordered that a rehearing be conducted for the purpose of reassessing damages. Appellant alleges that since the arbitrators entered an amended award without conducting a full hearing, they were denied their due process rights to such a hearing. We disagree. The trial court stated that the reason the original award was being vacated was because the arbitrators granted an award in excess of the policy limits. The arbitration panel had already conducted a full hearing on the issue of damages. They heard four days of testimony from both the appellees and the appellants. Appellants clearly had every opportunity to present all of their evidence and were awarded their right to a full and fair hearing. The arbitration panel was not required to conduct another full blown hearing regarding appellee’s damages in order to come up with an amended award. It already had all of the evidence presented to it, and was fully capable of determining an appropriate award without the unnecessary burden of another full blown hearing. Accordingly, we find appellant’s contention to be without merit. Appellant’s next issue is that the the original arbitration panel could not fairly and justly re-assess damages in the present matter. More specifically, appellant avers that Judge Cohen, when he ordered that the first arbitration award be vacated, should have ordered a hearing before a new panel because the original panel could not fairly reassess damages. We disagree.

Section 7314 Of the Uniform Arbitration Act provides that if the court vacates an arbitration award, the court may order a rehearing before the arbitrators who made the award, unless the award is vacated on grounds affecting the competency of the arbitrators. 42 Pa.C.S.A. § 7314(c). In the instant case, the original award was not vacated because of any incompetency of the arbitrators, but rather was vacated because the award exceeded the limits of the policy. This had nothing to do with the competency of the arbitrators, and therefore, the court did not err in ordering the same arbitrators to enter a new award. Furthermore, we do not agree with appellant’s assertion that the arbitrators were partial to appellee. There is simply no evidence to support this assertion, and thus the order should not be vacated.

Appellant’s next assertion is that the arbitration hearing was improperly conducted under common law. Although the trial judge initially labeled this as a common law arbitration matter, before it reviewed the arbitration award it correctly stated that, according to the terms of the insurance contract, this case was to be conducted under the Uniform Arbitration Act. Thus, the court properly reviewed the award according to the provisions in the Act. As the trial court noted, the type of arbitration, i.e., common law or statutory, only governs the scope of review on appeal, any error resulting from the court’s initial determination that the arbitration should proceed under common law arbitration was rendered inconsequential by the court’s review of the award in accordance with the rules of statutory arbitration. Additionally, although appellant asserts that the arbitration was improperly-conducted under the rules of common law arbitration, he fails to state how he was prejudiced by this procedure. We have carefully reviewed the record and the proceedings of the arbitration panel and fail to see how the hearing did not comply with the mandates of 42 Pa.C.S.A. § 7307. Thus, since the award was properly reviewed under the rules of statutory arbitration and since there is no indication or assertion that the hearing failed to conform to the requirements of the Uniform Arbitration Act, appellant’s contention is without merit.

The sixth issue raised by appellant is that it was deprived of statutory and contractual rights by the appointment of a neutral arbitrator by the court. The insurance contract provided that in the event the parties could not agree on a neutral arbitrator within thirty days of when arbitration is demanded, either party could request that the selection be made by a Judge or a Court having jurisdiction. The trial court clearly had jurisdiction to compel arbitration in this case as it had personal jurisdiction over both of the parties. See Shapiro v. Keystone Insurance Co., 384 Pa.Super. 397, 558 A.2d 891 (1989). Since the parties could not agree on a neutral arbitrator, the court also had the authority, upon appellee’s request, to appoint the neutral arbitrator. Appellants’ contention that they were not given the opportunity to select the neutral arbitrator is without merit. At least thirty days had passed since the demand for arbitration was given. The fact that the appellants’ did not act within the time frame provided by the contract is no one’s fault but their own. If they were deprived of their right to select the neutral arbitrator, therefore, they can only blame themselves for not acting within the time provided for in the contract. Thus, the court acted within its authority in appointing the arbitrator and appellant’s contention is without merit.

Next, appellant argues that the arbitration hearing should have been stayed pending the trial of the plaintiffs tort claims against the ambulance driver and the ambulance company. Appellant, however, in making this argument, fails to cite to the provision of the Uniform Arbitration Act which governs the granting of a stay of an arbitration hearing. Section 7304(b) provides:

(b) Stay of arbitration.—On application of a party to a court to stay an arbitration proceeding threatened or commenced the court may stay an arbitration on a showing that there is no agreement to arbitrate. When in substantial and bona fide dispute, such an issue shall be forthwith and summarily tried and determined and a stay of the arbitration proceedings shall be ordered if the court finds for the moving party. If the court finds for the opposing party, the court shall order the parties to proceed with arbitration.

42 Pa.C.S.A. § 7304(b). In Sanitary Sewer Authority v. Dial Associates Construction Group, Inc., 367 Pa.Super. 207, 532 A.2d 862 (1987), this court held that § 7304(b) means that

When one party to an agreement to arbitrate seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the questions of whether an agreement to arbitrate was entered into and whether the dispute involved falls within the scope of the arbitration provision.

Id. at 210, 532 A.2d at 863. The fact that there was a related action pending before a trial court which had taken up a substantial amount of time and which was directly related to and involved the parties to the arbitration proceeding was irrelevant. Id. The central focus is only on whether the parties agreed to arbitrate and whether the dispute involved in the arbitration proceeding falls within the arbitration clause. Id. Instantly, there is no question that the parties agreed to arbitrate and that the dispute falls within the arbitration clause. Thus, under § 7304(b) the trial court had no authority to grant a stay of the proceedings and appellant’s argument to the contrary is without merit.

Appellant’s next assertion is that the arbitrators had no authority to reform the uninsured motorist policy limits. More specifically, appellant claims that the testimony at trial established that the uninsured motorist benefits in the policy were limited to $300,000, and that the arbitrators erred in finding the coverage to be $1,000,000.00. We disagree.

Initially we note that our scope of review regarding findings of fact by an arbitration panel is very limited. In cases where statutory arbitration is involved Sections 7314 and 7315 of the Uniform Arbitration Act delineate the circumstances under which a statutory arbitration award can be vacated by a court. Resolution of factual disputes is within the province of the arbitrators, and the court may review and modify or correct arbitrators where there was evident miscalculation of figures, or evident mistakes in description of any person, thing or property, or where the award is deficient in matter of form. Greenspan v. U.S. Auto Association, 324 Pa.Super. 315, 471 A.2d 856 (1984). Additionally, these sections provide for the vacating of a statutory arbitration award upon the showing of fraudulent, irregular or partial conduct on the part of the arbitrators. 42 Pa.C.S.A. § 7314.

Here, the appellant claims that the determination by the arbitrators that the policy provided for $1,000,000 in uninsured motorists benefits is contrary to the law. Appellant does not allege fraudulent, irregular, or partial conduct on the part of the arbitrators, or that the award contains miscalculations or deficiencies in form. Such a claim, that the award is contrary to the law, is not a sufficient basis for vacating the award pursuant to § 7314 and 7315. Even if we were to review the claim, we note that there was no error on the part of the arbitration panel. As the arbitration panel correctly found, there was no indication of a signed waiver as required by 75 Pa.C.S.A. § 1731 and 1734, and therefore, the uninsured motorists benefits must be equal to the liability benefits of $1,000,000. As such, this determination of the arbitration panel is affirmed.

Appellant’s next argument is that the arbitrators erred in permitting duplicate recovery of worker’s compensation benefits. In support of this proposition, appellant cites to a number of cases which declare that double recovery of benefits for identical special damages is prohibited in Pennsylvania. While this is generally trae, appellant completely fails to cite to the portion of the Motor Vehicle Financial Responsibility Act which provides:

The Coverages required by this subchapter shall not be made subject to an exclusion or reduction in amount because of any worker’s compensation benefits payable as a result of the same injury.

75 Pa.C.S.A. § 1735. Appellant also fails to cite to the cases decided under this section which have held that an individual injured by an uninsured motorist while in the scope of her employment is entitled to recover both uninsured motorist benefits and worker’s compensation benefits. Ferry v. Liberty Mutual Insurance Co., 392 Pa.Super. 571, 573 A.2d 610 (1990) and Chatham v. Aetna Life & Casualty Co., 391 Pa.Super. 53, 570 A.2d 509 (1989). Accordingly, appellant’s contention is without merit.

Appellant’s tenth argument is that the arbitrators erred in permitting testimony of appellee’s expert beyond the scope of the expert’s report. More specifically, appellant claims that the arbitrators erred in allowing appellee’s treating physician to testify as to appellee’s permanent injuries where the doctor’s reports did not discuss the permanency of the injuries. We find this contention to be without merit. Appellant knew well in advance of the arbitration hearing as to what appellees’ treating physician was going to testify about. The doctor had been deposed two times. At both depositions, one which was at least a year before the arbitration hearing, the doctor testified regarding the permanency of appellees’ injuries. Appellant’s cannot now claim that they were surprised at the hearing when, for the third time, the doctor testified regarding the permanency of appellees’ injuries. They had an ample opportunity to prepare for the testimony and were clearly put on notice that the testimony would be adduced from the treating physician. Their claims to the contrary are without merit. The arbitration panel did not abuse its discretion in permitting the testimony.

Appellant’s final argument on appeal is that the arbitration award was excessive. As stated above, an arbitration award will only be reversed upon a showing of fraudulent, irregular or partial conduct on the part of the arbitrators, or where the award contains miscalculations or deficiencies in form. Here, there is no indication that any of these reasons for vacating the award are present. Thus appellant’s claim that the award is excessive, in the absence of an allegation of any of the above factors, does not provide a sufficient basis to vacate the award.

Appellee has also appealed from the trial court’s order. In its cross appeal, appellee states that the trial court erred in vacating the initial award of the arbitrators. Appellee asserts that the trial court should have either 1) confirmed the initial award of the arbitrators, or 2) modified, rather than vacated, the initial award of the arbitrators. This claim is without merit. Appellant’s liability is limited to the one million dollar uninsured motorist coverage as provided for in the insurance policy. The initial arbitration award exceeded this one million dollar limit. As this was the cap on appellant’s liability, the trial court was correct in vacating the award. Although the proper procedure may have been for the trial court to simply modify the award to fall within the policy limits, its failure to do so, in light of the amount awarded by the arbitration panel after its rehearing, does not entitle appellee to any relief. Appellant’s liability is limited to one million dollars. Appellee was awarded one million dollars. Appellee cannot possibly receive more than one million dollars from appellant. Accordingly, appellee’s claim is without merit.

Order affirmed.

      . That action has been stayed by order of the court pending resolution of the present appeal.

      . The trial court later conceded that the arbitration should have proceeded in accordance with the Pennsylvania Uniform Arbitration Act, but held that such an error was harmless as long as the statutory standard of review was applied.

      . We also note that we find no merit in appellant’s contention to whom the provisions regarding waiver should not apply.

      . Appellant argues that this issue is waived. We disagree. The Pennsylvania Uniform Arbitration Act, 42 Pa.C.S. § 7320, states, in pertinent part, "An appeal may be taken from: [a] court order vacating an award without directing a rehearing." § 7320(a)(5) (emphasis added). By implication, this provision also means that an appeal cannot be taken from an order vacating an arbitration award and directing a rehearing. Such an appeal would be interlocutory. Accordingly, the Boyces have not waived this issue as an immediate appeal from the initial order which vacated the award and directed a rehearing would have been interlocutory.


author: TAMILIA, Judge:

text:
    618 A.2d 969
    COMMONWEALTH of Pennsylvania, Appellant, v. Dominic EVOLA.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1992.
    Filed Nov. 18, 1992.
    Reargument Denied Jan. 29, 1993.
    Norman Gross, Asst. Dist. Atty., Philadelphia, for the Com., appellant.
    Joseph C. Santaguida, Philadelphia, for appellee.
    Before CIRILLO, MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

The Commonwealth takes this appeal from the orders granting defendant/appellee Dominic Evola’s petition for early parole. The factual and procedural history of this case are as follows.

On February 14, 1991, [the trial court] found the defendant guilty of two counts of Involuntary Manslaughter (Bills 2934 & 2989) and of Driving Under the Influence (Bill 2983) for causing the deaths of Jason Gammuto and Mark Mulhern through his reckless operation of a motor vehicle with noticeably balding tires at a high rate of speed. On May 1, [the trial court] sentenced Evola to a term of eight to twenty-three months on each count of Involuntary Manslaughter to run consecutively and to forty-eight hours on DUI to run concurrently. [The trial court] specified on the record that Evola was to be confined at a Philadelphia County prison facility. (N.T. 5/1/91, p. 50) and permitted the defendant to surrender on May 13th.
On October 8, 1991, after receiving approval from [the trial court], defense counsel, Joseph Santaguida, Esquire, filed a Petition for Early Parole/Work Release. [The trial court] set a héaring on this petition for October 21, 1991. Before the hearing could be held, the Philadelphia County Prison System submitted an Earned Time/Good Time Parole Petition on behalf of Evola . Evola had earned a total of fifty-two days. [The trial court] then granted the petition which the Philadelphia County Prison System Population Management Unit correctly calculated to reduce the defendant’s minimum date of release on the first count of Involuntary Manslaughter, Bill No. 2984, from January 13, 1992 to November 22, 1992. The original Petition for Early Parole had therefore been mooted.
On November 22,1991, [the trial court] permitted defense counsel to file a new Petition for Early Parole on the second charge. [The trial court] set a hearing on this petition for November 26th. On that day, [the trial court] granted the defendant’s petition and placed Evola on parole for the remainder of this sentence on the second court [sic] of Involuntary Manslaughter, Bill No. 2989.
On December 5th, [the trial court] received the Commonwealth’s Petition to Modify and/or Vacate [the trial court’s] order granting the defendant’s early parole.
[The trial court] denied the petition without a hearing. On December 26, the Commonwealth filed a Notice of Appeal. Pursuant to such notice, [the trial court] ordered the District Attorney of Philadelphia County to file a concise Statement of Matters Complained of on appeal in accordance with Pa.R.A.P. 1925(b). The Commonwealth filed the statement on January 22, 1992.

(Slip Op., Richette, J., 6/8/92, pp. 1-3.)

It is abundantly clear under Pennsylvania law that the authority to parole convicted offenders lies with both the common pleas courts and the Pennsylvania Board of Probation and Parole. “When an offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains authority to grant and revoke parole; when the maximum term is two years or more, authority to grant and revoke parole is vested in the Parole Board.” Commonwealth v. McDermott, 377 Pa.Super. 623, 631, 547 A.2d 1236, 1239 (1988); see also 61 Pa.S. §§ 331.17, 331.26.

In the present case, appellee was serving consecutive sentences of eight (8) to twenty-three (23) months. At first blush, then, this case would appear to involve the trial court’s authority rather than that of the Parole Board. Pertinent statutory law, however, provides:

Whenever the court determines that a sentence should be served consecutively to one being then imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which sentence is imposed. Such minimum sentence shall not exceed one-half of the maximum sentence imposed.

42 Pa.C.S. § 9757 (emphasis added). “Our Commonwealth Court has interpreted [section 9757] to mandate automatic aggregation of sentences once the trial court imposes a consecutive sentence. Gillespie v. Commonwealth Department of Corrections, 106 Pa.Commw. 500, 508, 527 A.2d 1061, 1065 (1987).” Commonwealth v. Ford-Bey, 404 Pa.Super. 281, 284, 590 A.2d 782, 783 (1991). This Court in Fordr-Bey adopted the rationale of Gillespie, and we continue to follow Ford-Bey today.

Nevertheless, the trial court discounts the holdings of Gillespie and Fordr-Bey, relying instead on a discussion of state versus county incarceration. The issues of state and county incarceration, and of consecutive and aggregate sentences, operate independently of each other, and are relevant only to the extent that they indicate where the trial court diverted from its intention to its result. We do not dispute that the decision requiring a sentence to be served in a state as opposed to a county institution “is purely within the discretion of the trial judge limited only by statutes or Department of Correction regulations as to where a sentence, of particular duration ..., may be served.” Commonwealth v. Morrison, 391 Pa.Super. 449, 457, 571 A.2d 453, 457 (1990).

The trial court, however, states:

Even where a consecutive sentence is imposed, unless the Court specifically orders aggregation, the county sentence prevails. The Webster definition of aggregation is “to collect or gather into a mass or whole, to total.”
The adjective “consecutive,” on the other hand, means “following one after the other in order,” “successive.”

(Slip Op. at 4-5.) It appears the trial court sought to have appellee serve his sentence in a county institution rather than a state one, and believed that unless it “specifically order[ed] aggregation, the county sentence prevailed].” The decision to confine appellee in a county institution is always within the trial court’s discretion, where the sentence was more than two years but less than five years. 42 Pa.C.S. § 9762(2); Allegheny County v. Commonwealth, 518 Pa. 556, 544 A.2d 1305 (1988). However, aggregation of consecutive sentences was not within the trial court’s discretion, but occurred by operation of law under section 9757.

Therefore, as the trial court’s parole Orders are contrary to the clear statutory provisions concerning the imposition of consecutive sentences, as well as the appellate decisions thereon, they are hereby vacated, and we order appellee to surrender to the custody of the Superintendent of the Philadelphia Department of Prisons for completion of each of his two eight-month minimum sentences as aggregated.

Orders vacated; case remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.

Decision rendered prior to MONTEMUEO, J. leaving the bench.

      . Earned Time/Good Time is a program which allows county prisoners to earn time off their sentences in return for good behavior and/or working in the prison pursuant to Joing [sic] Regulation No. 90-7.

      . See attached Exhibit 1 which is a copy of the petition and Order submitted by Philadelphia Prison Population management Unit effectuating Mr. Evola’s release on parole on bill # 2984—Involuntary Manslaughter.

      . We note with some concern that a copy of the Philadelphia County Prison System Population Management Unit (“PPMU”) parole petition filed in appellee’s behalf is contained nowhere in the Quarter Session file for this case, nor is there any indication in the file that the petition was filed with the Clerk of Quarter Sessions, let alone properly served on the district attorney, as required. 61 Pa.S. § 314; Pa.R.Crim.P. 9023(b). Indeed, the only indication that the PPMU petition was filed is the trial court's statement in its Opinion that this occurred. Further, although the trial court in footnote 2 of its Opinion states the PPMU petition is attached thereto as Exhibit 1, such was not appended.

      . We note with some sympathy the able trial court’s position that legislation and prosecutorial discretion have increasingly limited the ability of trial courts to use their discretion in evaluating appropriate sentencing of offenders. However, we too have diminished discretion as appellate judges to consider individualized findings and are constrained by legislation and case law to follow the legislative intent.

      . In light of our finding that the aggregate sentence is one which comes under the exclusive jurisdiction of the Parole Board, it necessarily follows that the good time provisions under the Philadelphia County Prison Regulations do not apply and release is governed by Parole Regulations.


author: HUDOCK, Judge:

text:
    618 A.2d 972
    COMMONWEALTH of Pennsylvania, Appellee, v. Tracy Eugene DENNIS, Appellant.
    Superior Court of Pennsylvania.
    Argued July 29, 1992.
    Filed Dec. 8, 1992.

      Gary B. Zimmerman, Pittsburgh, for appellant.
    Mary B. Seiverling, Deputy Atty. Gen., Harrisburg, for Com., appellee.
    Before TAMILIA, HUDOCK and HESTER, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed on Appellant following conviction on two counts of corrupt organizations, four counts of delivery of a controlled substance (methamphetamine), and one count of criminal conspiracy. Post-trial motions were filed and denied, and Appellant was sentenced to seven and one-half (7íé) to twenty (20) years in prison on the corrupt organizations conviction, and concurrent sentences of two and one-half (2!/¿) years on three of the controlled substance convictions, and a concurrent sentence of five (5) to ten (10) years on the criminal conspiracy conviction. This appeal followed. We affirm.

The facts involved in this case concern a series of three-way transactions for the sale of methamphetamine which involved individuals in Pennsylvania, New Jersey and Florida. The testimony at trial revealed that over a period of time from 1981 to 1989, Appellant was involved in a methamphetamine distribution scheme involving several people, including Craig Mahlon, Kevin Reilly, and William Bell. Both Mahlon, and, later, Reilly received the drugs either in the Pocono Mountains region of Pennsylvania or in New Jersey. Mahlon left the operation and substituted Reilly, who moved to Florida in 1986. While continuing to be involved in this same scheme of distribution, due to Reilly’s move to Florida, the methamphetamine was sent by mail or U.P.S. to Florida and then sent by Reilly from Florida to William Bell in Clearfield County, Pennsylvania. Bell then sold the drugs to individuals who worked for him.

As part of the evidence submitted at trial, the Commonwealth offered the results of a search of Appellant’s residence which took place pursuant to a New Jersey search warrant on October 6, 1986. During this search, $218,000 in U.S. currency was found in a safe in Appellant’s basement.

Appellant raises the following issues in his appeal:

I. The evidence is insufficient to sustain Appellant’s conviction for violating 18 Pa.C.S. Section 911(B)(3) Corrupt Organization and 18 Pa.C.S. Section 911(B)(4) Conspiracy, Corrupt Organizations in that the evidence failed to prove the existence of a separate enterprise apart from the drug conspiracy activity.
II. The evidence is insufficient to maintain Appellant’s conviction on counts V, VI and VII, as the crimes charged were committed outside the territorial limits of Pennsylvania.
III. The evidence was insufficient to convict Appellant with delivery of Methamphetamine, 35 Pa.C.S. 780-113(A)(30), because the proof was not reasonably certain as to date and time so that the double jeopardy requirements of the Pennsylvania and United States Constitutions were not satisfied. The charge itself failed to adequately notify Appellant of the crime and the lower court created a new crime without the approval of the legislature.
IV. The fruits of an unlawful search by New Jersey officials were erroneously admitted into evidence at the trial of this case as the search was conducted on the basis of a search warrant issued without probable cause.

Appellant’s Brief at 4.

Appellant’s first issue concerns the sufficiency of the evidence presented at trial. In reviewing the sufficiency of the evidence, we must examine the evidence in the light most favorable to the Commonwealth as verdict winner and, in light of this and the permissible inferences which may be drawn therefrom, whether all of the elements of the crime have been established beyond a reasonable doubt. Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986).

18 Pa.C.S. § 911(b) reads in pertinent part:

(3) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.
(4) It shall be unlawful for any person to conspire to violate any of the provisions of paragraphs (1), (2) or (3) of this subsection.

18 Pa.C.S. § 911(h) reads in pertinent part:

(1) “Racketeering activity” means:

(ii) any offense indictable under section 13 of the act of April 14,1972 (P.L. 233, No. 64) known as The Controlled Substance, Drug, Device and Cosmetic Act [35 P.S. § 780-101 et seq.] (relating to the sale and dispensing of narcotic drugs);
(iii) any conspiracy to commit any of the offenses set forth in subparagraphs (i) and (ii) of this paragraph;
sH ^ sfs
(3) “Enterprise” means any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity, engaged in commerce.
(4) “Pattern of racketeering activity” refers to a course of conduct requiring two or more acts of racketeering activity one of which occurred after the effective date of this section.

Appellant does not dispute the presence of a pattern of racketeering activity, but rather, argues that the Commonwealth failed to prove the existence of an “enterprise”, as defined by the corrupt organizations statute, separate and apart from the drug conspiracy activity. We disagree. As we stated in Commonwealth v. Yacoubian, 339 Pa.Super. 413, 420, 489 A.2d 228, 231 (1985):

Although ... drug distributions are made criminal by other statutory provisions, the corrupt organizations section of the Crimes Code is not superfluous. This section enables law enforcement to reach the criminal enterprise which has no legitimate dimension or has yet to achieve one. To prove a violation of the corrupt organizations provision, the Commonwealth must prove more than the commission of a crime. It must also prove an enterprise. Thus, the Commonwealth was required to show in the instant case that the fencing of stolen property was the work of a group of individuals acting together, or an association, whose purpose was to engage in the commerce of selling stolen goods.

The holding in Yacoubian was recently reaffirmed by this Court in Commonwealth v. Besch, 418 Pa.Super. 1155, 614 A.2d 1155 (1992).

While recognizing the Yacoubian holding, Appellant argues that the Commonwealth cannot merely establish the enterprise necessary for the racketeering charges by proving the predicate drug conspiracy offenses, but rather, must prove the existence of an enterprise separate and apart from establishing the commission of the drug offenses. In support of his claim, Appellant'relies on an unpublished memorandum opinion of a panel of this Court which affirmed, by adopting the trial court opinion, the grant of habeas corpus relief to two petitioners on the basis that, absent proof of an enterprise separate and apart from the underlying bookmaking activities, a prima facie case on corrupt organization charges was not established. Initially, we note that it is well-established, by rule and case law, that an unpublished memorandum opinion of this Court cannot be considered precedent and cannot be cited by the parties to an action for any purpose. Common wealth v. McPherson, 368 Pa.Super. 274, 533 A.2d 1060 (1987). Moreover, as shall be discussed below, upon review of the entire record, we hold that the Commonwealth sufficiently established an enterprise beyond that necessary for the predicate drug offenses.

The trial court opinion adopted by a panel of this Court, in an unpublished memorandum opinion, found that the Commonwealth had failed to meet the test established for Racketeer Influenced and Corrupt Organizations (RICO) convictions under the federal statute. 18 U.S.C. §§ 1961-1968. Although Pennsylvania’s corrupt organizations statute is based on the federal corrupt organizations statute, federal case law in this area is instructive, but not controlling. Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984). Nevertheless, in United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), the United States Supreme Court held that an enterprise may be established if there is (1) “evidence of an ongoing organization,” (2) evidence that the various associates function as a formal or “continuing unit,” and (3) evidence that the enterprise has an existence “separate and apart from the pattern of activity in which it engages.” Id. at 583, 101 S.Ct. at 2528.

The third element of Turkette has subsequently been interpreted by the Third Circuit as follows:

As we understand this last requirement, it is not necessary to show that the enterprise has some function wholly unrelated to the racketeering activity, but rather that it has an existence beyond that which is necessary to commit each of the acts charged as predicate racketeering offenses. The function of overseeing and coordinating the commission of several different predicate offenses and other activities on an ongoing basis is adequate to satisfy the separate existence requirement.

United States v. Riccobene, 709 F.2d 214, 223-224 (3d Cir. 1983), cert. den., sub nom. Ciancaglini v. U.S., 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983). We find this interpretation to be wholly consistent with this Court’s statement in Yacoubian, supra, that, in order to prove a corrupt organizations charge, the Commonwealth must prove an enterprise in addition to proving commission of crime.

The evidence in the present case, taken in the light most favorable to the Commonwealth, is that Appellant was in control of the distribution of methamphetamine to individuals in Clearfield County, Pennsylvania, through an organization involving various individuals including Craig Mahlon and Kevin Reilly as his immediate contacts, whether in Pennsylvania or Florida. And that through these individuals, and the use of the mail or U.P.S., the methamphetamine was then delivered to William Bell in Clearfield County who then distributed them to other individuals working for Bell. The evidence shows that Appellant, Mahlon, Reilly, and Bell were in control of the process by which the drugs would be picked up and delivered to Bell’s employees, and that these transactions occurred over a period of time with the ultimate goal of distribution of methamphetamine in Clearfield County, Pennsylvania. Appellant controlled how the drugs were to be picked up, by whom, how he was to be contacted, and who had access to contact him. Although Mahlon dropped out of the operation at some point, Bell was involved all along and Appellant was fully aware of Bell’s involvement and controlled how money would flow from Bell to Appellant. We find, therefore, that, under the definition of “enterprise”, its interpretation in Yacoubian, and the instructive reasoning of Riccobene, the Commonwealth satisfied its burden of proving the existence of such an enterprise in addition to the proof necessary for the predicate offenses in the present case.

Appellant next argues that his convictions on counts V, VI, and VII are not supported by sufficient evidence because the crimes were committed outside of Pennsylvania, and, therefore, Pennsylvania lacked jurisdiction over these offenses. We disagree.

18 Pa.C.S. § 102(a) (Purdon 1983) controls the jurisdiction of the courts of common pleas. It reads in pertinent part:

(a) General rule.—Except as otherwise provided in this section, a person may be convicted under the law of this Commonwealth of an offense committed by his own conduct or the conduct of another for which he is legally accountable if either:
(1) the conduct which is an element of the offense or the result which is such an element occurs within this Commonwealth;
(3) conduct occurring outside this Commonwealth is sufficient under the law of this Commonwealth to constitute a conspiracy to commit an offense within this Commonwealth and an overt act in furtherance of such conspiracy occurs within this Commonwealth.

Appellant concedes that the Commonwealth has the statutory authority to prosecute him on the conspiracy charge. Commomvealth v. Thomas, 410 Pa. 160, 189 A.2d 255 (1963); Commonwealth v. Snowdy, 412 Pa.Super. 493, 603 A.2d 1044 (1992). Appellant claims, however, that the Commonwealth was without authority to charge him with the object of the conspiracy, that is, the delivery of methamphetamine. This claim is without merit. The trial court correctly notes that “[t]he determination of jurisdiction may rest on the theory of vicarious criminal responsibility which rises out of the existence of a conspiracy.” Trial Court Opinion at p. 6. In Thomas, supra, our Supreme Court held that Pennsylvania had jurisdiction to try Thomas for felony-murder even though Thomas had taken part only in the planning of the underlying robbery and was not even present in Pennsylvania when the homicide was committed. The high court reached this result by citing the well-established rule of law that “the law imposes upon a conspirator full responsibility for the natural and probable consequences of acts committed by his fellow conspirator or conspirators [even if he was not physically present when the acts were committed] if such acts are done in pursuance of the common design or purpose of the conspiracy.” Id. 410 Pa. at 165, 189 A.2d at 258.

The evidence presented at trial revealed that Appellant, a resident of New Jersey, delivered drugs to Kevin Reilly who then delivered the drugs to William Bell in Clearfield County, Pennsylvania. On two occasions, Bell sent money directly to Appellant, and on one occasion, after Reilly had moved to Florida, Appellant agreed to permit Bell to pick up the drugs directly from Appellant. While transporting the drugs back to Clearfield County, however, Bell was stopped for speeding. While no drugs were discovered during this traffic stop, Appellant and Reilly thereafter arranged to have future transactions conducted through the mail and U.P.S. to Florida and from there to Pennsylvania. Upon Appellant’s request, the trial court charged the jury with regard to the delivery counts:

A Defendant may not be convicted of a crime which occurs in Pennsylvania unless it was committed by his own conduct or the conduct of another for which he is legally accountable. Thus 'if you find that there was a delivery of drugs from Kevin Reilly to William Bell as alleged in counts six and seven, but that [Appellant] did not participate in that delivery in Pennsylvania nor had any control over Kevin Reilly concerning their delivery, this delivery, you must find him not guilty as if his act was completed in New Jersey or Florida. He has not committed a crime in Pennsylvania.
Also as to counts four and five, if you find that a delivery of drugs was made in New Jersey and that transaction was completed in New Jersey and after that transaction, [Appellant] did not have any control over what either Reilly or Bell did with the drugs, you must find [Appellant] not guilty as if his act was completed in New Jersey. He has not committed a crime im Pennsylvania.

N.T., 4/10/91, at p. 150. Based upon the above, it was for jury determination whether Appellant’s actions outside Pennsylvania were acts committed in furtherance of a conspiracy to distribute methámphetamine in Pennsylvania or whether Appellant was only the New Jersey supplier of the drug to a Florida or Pennsylvania buyer. Finding Appellant guilty on all counts, it is obvious that the jury concluded that Appellant was involved in all aspects of the drug operation and, therefore, rejected Appellant’s contention that he had no control over the drugs once they were delivered to either of the two men. Upon review of the record, we find that more than sufficient evidence was presented by the Commonwealth to support this conclusion. Indeed, it is the very fact that the jury found Appellant to be involved in the conspiracy to distribute methamphetamine which provided this Commonwealth with jurisdiction to prosecute him on the delivery charges. Thus, Appellant’s claim to the contrary is without merit.

Appellant’s third issue challenges his conviction under count IV for delivery of a controlled substance. Count IV reads as follows:

Defendant, not being authorized by law, did unlawfully deliver a controlled substance, that is, from about August 1985 to about November 1986, Defendant did deliver to Kevin Anthony Reilly methamphetamine, a Schedule II controlled substance, in violation of Section 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-110(a)(30).

Appellant argues that he was charged with an offense not created by the legislature in that he was charged with delivery of a controlled substance as a continuing offense. He further claims that the “theory of a continuous crime has, until this case, been limited to young children in sexual abuse cases.” Appellant’s brief at p. 25. Appellant continues:

Appellant submits to the Court that Article I, Section 9 and Section 11 of the Pennsylvania Constitution and the 5th and 14th Amendments to the United States Constitution prohibit this type of broad allegation of wrong doing [sic], thereby, requiring a charging document and the proof in any criminal case to be specific as to time and date with reasonable certainty thereby maintaining the integrity of the Double Jeopardy Clause in both constitutions. Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975).
There is not one case in the law of this Commonwealth which supports that the violation of 35 [P.S. §] 780-113(a)(30) is or can be a continuing offense. After all, that is what the statute charging conspiracy, 18 Pa.C.S. [§] 903, is all about, and which Appellant was charged with violating in Count III of this Information.

Appellant’s Brief at p. 26-27. While our research also fails to discover case law in which a drug offense was charged as a continuous offense, we do find that continuing offenses have been charged in areas other than child sex abuse. For the reasons stated below, we find that the criminal information supporting Appellant’s conviction under count IV was sufficient.

Initially, we note that Appellant’s constitutional claims are undeveloped. “It is not the function of this Court to consider, and respond to, vacuous claims.” Commonwealth v. Delligatti, 371 Pa.Super. 315, 329, 538 A.2d 34, 41 (1988), alloc. den., 520 Pa. 595, 552 A.2d 250. We have also cautioned that “when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof.” Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982). The only case cited by Appellant in support of his constitutional claims is Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975). Devlin, however, involved a situation where the defendant was accused of performing a single act of sodomy upon a retarded, adult male who was unable to specify a specific date upon which the single event occurred. Thus, Devlin did not involve a continuing offense and does not support Appellant’s claim. Likewise, it appears that Appellant argues that he cannot be charged with both conspiracy and delivery, as a continuing offense, on double jeopardy grounds. This one sentence claim is also undeveloped and will not be addressed.

Rule 225(b) of the Rules of Criminal Procedure, 42 Pa.C.S. (Purdon 1989), lists the requisite contents of a criminal information. With regard to the date of the offense, Rule 225(b)(3) reads:

(3) the date when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient. (Emphasis added).

In Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980), the information filed against the defendant charged that the alleged sex offenses occurred beginning in 1972 and continuing until August, 1977. In finding that the trial court properly denied the defendant’s motion to quash the information, this Court, citing Rule 225(b)(3), stated:

... the pertinent allegation contained in the information appears to fit precisely Rule 225’s proviso that an allegation that an offense was committed “on or about any date within the period fixed by the statute of limitations shall be sufficient” [emphasis in original] when (1) time is not of the essence [that is, date of commission is not an element of the offense] and (2) a precise date is unknown.
Moreover, we do not believe that it would serve the ends of justice to permit a person to rape and otherwise sexually abuse his child "with impunity simply because the child has failed to record in a daily diary the unfortunate details of her childhood. Since the facts of the instant case preclude a definitive enumeration of events and because the record belies any assertion that the Commonwealth sought to abuse the flexibility of Rule 225, we hold that it was not an abuse of discretion to deny the motions.

Id., at 440, 422 A.2d at 1373 (footnote omitted); see also Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984) (claims that informations charging continuing offenses against girls over a three month period were overly vague dismissed by this Court on the basis of Niemetz).

Contrary to Appellant’s claims, case law has not limited the application of Rule 225(b)(3) to child sexual abuse cases. In a case involving criminal conspiracy, theft by deception, and Public Welfare Code violations, we held that where the Commonwealth establishes that the crime charged was a continuing one, and where the dates fell within the applicable statute of limitations for the substantive crime, the dates in the information were sufficiently certain despite their lack of specifying one particular date upon which the crimes occurred. Commonwealth v. Volk, 298 Pa.Super. 294, 444 A.2d 1182 (1982). What constitutes a continuing offense must be determined by the facts of the individual case. In Volk, this Court found that the defendant’s claim of trial counsel’s ineffectiveness for failing to move to quash the information against him, where the information was not specific as to the dates or times of the crimes charged therein, lacked arguable merit:

Herein, the Commonwealth established that the crime was a continuing one. Appellants received a total of forty-eight checks, commencing on June 20,1975, and continuing at the rate of two per month until May 12, 1977. Moreover, the informations set forth that the offenses were committed on or about May 12, 1977, and at divers times prior thereto. With reference to the welfare fraud charge, the informations specifically provided:
[Said defendant(s) ] ... deliberately concealed] the receipt of income and other available resources ... during the period June 20, 1975 through May 12, 1977.
On the basis of our discussion dealing with the applicable statutes of limitations for each of the three crimes for which appellants were convicted, we can conclude that the dates represented within the information fell “within the period fixed by the statute of limitations” and therefore, were “sufficient.”

Id. at 306-07, 444 A.2d at 1188.

The definition of theft by deception reads, in pertinent part:

(a) Offense defined.—A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;

18 Pa.C.S. § 3922(a)(1) (Purdon 1983). The definition of a violation of the Public Welfare Code under which the defendant was convicted in Volk reads:

(a) Any person who, either prior to, or at the time of, or subsequent to the application for assistance, by means of a willfully false statement of misrepresentation, or by impersonation or other fraudulent means, secures, or attempts to secure, or aids or abets any person in securing assistance, or Federal food stamps, under this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000), or to undergo imprisonment not exceeding one year, or both, and also shall be sentenced to make restitution of any moneys he has received by reason of any such false statement, misrepresentation, impersonation, or fraudulent means.

Volk, at 302-03, 444 A.2d at 1186 (emphasis omitted) citing 62 P.S. § 481(a) (Purdon Supp.1981).

It is clear from‘the reading of these two definitions that there is nothing contained therein indicating that these crimes are inherently of a continuing nature. Therefore, when the facts of a particular case indicate an ongoing, or continuing nature, as they did in Volk, the court is justified in finding that, under Rule 225, an information is sufficient if the dates stated are within the applicable statute of limitations. The applicable statute of limitations for the delivery of methamphetamine, 35 Pa.S. § 780-113(a)(30), supra, is five years. 42 Pa.C.S. § 5552(b)(2) (Purdon Supp.1992). The information charged Appellant with violations from August 1985 to November 1986, and Appellant was arrested on August 21, 1990, which is within the five year statute of limitations. We also find that “time is not of the essence” in that the date of commission is not an element of the drug charge. Moreover, a review of the record does not indicate that the Commonwealth abused the flexibility provided in Rule 225(b)(3), Niemetz, supra. Finally, while Appellant makes general claims of constitutional violations, he does not sufficiently demonstrate how he was prejudiced by this particular count in the criminal information. We therefore find that, based on the facts in the present case, which indicate that numerous transactions occurred between Appellant and Reilly from August of 1985 to November 1986, the information was sufficiently certain. See also Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1988), alloc. den., 520 Pa. 604, 553 A.2d 967 (finding interference with custody of child to be a continuing offense— it is not merely the taking or enticing of the child that constitutes the offense, but rather, the continued maintenance of the child outside the custodial dominion).

Finally, Appellant argues that the results of a search upon Appellant’s property in New Jersey conducted in October 1986 should not have been admitted into evidence at Appellant’s trial because the search warrant was issued without probable cause. More specifically, Appellant argues that the information providing probable cause was stale, and the issuance of the warrant was therefore improper. It is a fundamental principal of the conflicts of laws that a court employs its own state’s procedural rules. “That is true in both civil and criminal cases, but especially in criminal cases as a sort of corollary to the local nature of substantive criminal law. Procedures in criminal cases are always those of the forum.” Leflar, American Conflicts Law, Fourth Edition, § 116 (1977). The law of evidence, including the admissibility of specifically offered evidence, has traditionally been characterized as procedural law. Id.; see also Restatement (Second) of Conflict of Laws, § 138 (1971). Thus, we need only determine whether the application for the search warrant and accompanying affidavit was sufficient to establish probable cause for the search warrant under Pennsylvania law. In reviewing a magistrate’s determination that probable cause exists to support the issuance of an arrest or search warrant under the “totality of the circumstances” test of Commonwealth v. Gray, 509 Pa. 476, 477, 503 A.2d 921, 922 (1985) citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), this Court must ensure that the magistrate had a substantial basis for concluding that probable cause existed. Commonwealth v. Moore, 321 Pa.Super. 1, 467 A.2d 862 (1983). The test for probable cause “is not one of certainties, but rather of probabilities dealing with the considerations of everyday life. It is not equivalent to the ‘proof beyond a reasonable doubt’ standard applied in a criminal trial.” Commonwealth v. Sirbaugh, 347 Pa.Super. 154, 165, 500 A.2d 453, 459 (1985) (citations omitted). The task of the issuing magistrate is to simply make a common sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of the knowledge of persons supplying the information, there is sufficient information to conclude that probable cause exists. Commonwealth v. Yerger, 333 Pa.Super. 501, 482 A.2d 984 (1984), alloc. granted, 515 Pa. 593, 528 A.2d 602 (1987), dismissed 518 Pa. 465, 544 A.2d 446 (1988).

Suppression or exclusion of evidence is a most extreme remedy that is justified only when necessary to vindicate fundamental rights and to correct or deter police abuse. Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985). In reviewing the denial of a motion to suppress evidence, this Court must determine whether the factual findings of the suppression court are supported by the record:

In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).

Commonwealth v. Chamberlain, 332 Pa.Super. 108, 112, 480 A.2d 1209, 1211 (1984). The magistrate’s decision must be based on the four corners of the affidavit in support of the issuance of the warrant, Commonwealth v. Way, 342 Pa.Super. 341, 492 A.2d 1151 (1985), although oral testimony is permitted. See, generally Pa.R.Crim.P. 119(a) and 2003(a), 42 Pa.C.S. (Purdon 1989), and the comments thereto.

“It is well established in this Commonwealth that stale information cannot supply the probable cause necessary for the issuance of a search warrant. If, however, it is demonstrated that criminal conduct has in fact continued, then the relevant information, in spite of its vintage, may not be deemed stale.” Commonwealth v. Eazer, 455 Pa. 320, 323, 312 A.2d 398, 399 (1973) (citations omitted). “Courts have been reluctant, however, to set a hard and fast rule as to what constitutes staleness; such a determination must be made on a case by case basis. Mere lapse of time between discovery of criminal activity and issuance of the warrant will not necessarily dissipate probable cause; a showing that the criminal activity is likely to have continued up to the time of issuance of the warrant will render otherwise stale information viable.” Commonwealth v. Stamps, 493 Pa. 530, 536, 427 A.2d 141, 144 (1981) (footnote omitted) (emphasis added). Therefore, we must look at the warrant and the affidavit of probable cause which were before the magistrate in New Jersey at the time the warrant was issued.

The affidavit of probable cause in this case is the transcript from the proceeding before the magistrate in New Jersey. This proceeding was conducted on October 7,1986, at approximately 4:30 p.m. The testimony submitted by the affiant, Investigator Michael King, was that he was contacted by Detective Dennis Holba of the Mount Holly Township Police Department. Detective Holba had interviewed Eva Young who told him that, on October 4, 1986, Appellant had threatened to blow up her house. Acting on that information, King reviewed records in the Prosecutor’s office regarding Appellant’s prior involvement with explosive devices. These records included a previous investigation in November 1985 in cooperation with New Jersey State Police Narcotics Central Bureau in which pipe bombs and explosive powder were turned over to the police by Appellant’s brother.

Appellant’s brother, in June of 1986, again spoke with the State Police Narcotics Unit indicating he had personal knowledge that Appellant was in possession of explosive devices which were stored both at Appellant’s residence and at a commercial establishment in Juliustown Township, New Jersey. In June of 1986, the Mount Holly Police spoke with another individual who had seen approximately five cases of dynamite in Appellant’s possession in January 1986. Investigator King also testified to having received information from a confidential informant in June of 1986 to the effect that Appellant had access to weapons and bombs. The reliability of this informant was established. After this testimony, the magistrate made the following findings:

I find there is adequate probable cause to believe that located at the residence of 7 Ridgely Street you will find explosive devices or other destructive devices and records of other materials that would be evidence in connection with the prosecution for possession of those items, and I find in the same way that you have reasonable cause—probable cause to believe that at the Auto Craft establishment you will find various explosive devices, records and components with explosive devices. I believe that the search should reasonably extend to buildings and any containers, which could contain these items, and including the safes; and the typed warrant doesn’t indicate the safes, but I will specifically add that into Paragraph 6 of each.
I find that there is reasonable cause to believe that Mr. Dennis may have such explosives on his person because they’re described as small enough to be portable and that it would be proper to search him as well, that there is a logical connection between the fact that there is evidence that he was in possession of these things in the past at these two locations, that he’s currently making threats to blow people up, that there’s reasonable grounds to believe that he presently has access to those materials located at the residence and at the place of business.

(N.T., 10/7/86, at pp. 25-26).

Based on the testimony which constitutes the affidavit of probable cause, we find that the magistrate properly found the presence of probable cause. The Commonwealth argues that Appellant has failed to have the suppression hearing transcript before our Court of Common Pleas made a part of the record pursuant to Pa.R.A.P.1911, 42 Pa.C.S. (Purdon 1989). We agree that there is no transcript in the official record, and that we may take such action as we deem appropriate, including dismissal of the appeal. Because of the presence of the New Jersey warrant and “affidavit”, our appellate review has not been hampered by the absence of the suppression hearing transcript, and while we do not countenance Appellant’s failure to provide the transcript, we decline to dismiss the appeal for this reason.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 911 (Purdon 1983 & Supp.1992).

      . 35 Pa.S. § 780-113(a)(30) (Purdon Supp.1992).

      . 18 Pa.C.S. § 903 (Purdon 1983).

      . As shall be discussed infra, on one occasion Bell went to New Jersey to receive the drugs directly from Appellant.

      . Appellant also takes issue with the charge given the jury on this particular point and, in support, cites to a portion of the charge. Upon review of the entire charge, Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983), we find that the charge given as to this offense was consistent with the holding in Yacoubian and was, therefore, a correct statement of the law in Pennsylvania.

      . We note that New Jersey has also adopted the "totality of the circumstances” test in State v. Novembrino, 105 N.J. 95, 519 A.2d 820 (1985).


author: OLSZEWSKI, Judge:

text:
    618 A.2d 982
    Thomas TROTMAN, Appellee, v. Albert MECCHELLA, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1992.
    Filed Dec. 30, 1992.

      Rames J. Bucci, Philadelphia, for appellant.
    Edward D. Conway, Philadelphia, for appellee.
    Before OLSZEWSKI, BECK and KELLY, JJ.
   OLSZEWSKI, Judge:

Albert Mecchella appeals the judgment entered July 14, 1992, in the Court of Common Pleas of Philadelphia County. This case arose out of an incident which occurred on September 10, 1988. In the early morning hours of that day, Mecchella was driving three friends around Philadelphia in his car. Thomas Trotman was walking along Sixth Street in Philadelphia when Mecchella called out to Trotman and motioned for him to come over to the car. As Trotman approached the stopped car, he saw the barrel of a gun being pointed at him from the back seat of the car. Trotman heard a popping sound and felt a sharp pain in his left eye. Consequently, Trotman was operated on at a Philadelphia hospital for removal of a BB pellet from near his left eye. As a result of the trauma from the shooting, Trotman lost his left eye.

A criminal trial was held in December of 1989. At trial, Mecchella stated that he and the other men in his car had been drinking all that night, driving around Philadelphia. Mecchella admitted that he knew there was a BB gun in his car, and that one of the men was firing it from the back seat. Mecchella was convicted of criminal conspiracy.

After the criminal trial, a personal injury bench trial was held on the issue of Mecchella’s negligence on July 24, 1991. The court entered a judgment against Mecchella for $150,000 in compensatory damages and $50,000 in punitive damages. Mecchella filed post-trial motions, alleging that any reference in the civil case to his criminal conviction was error because Mecchella was not a principal actor in the shooting of Trot-man. The court denied the post-trial motions, and this appeal followed.

Mecchella argues that the negligence action should have been dismissed because it was a new cause of action for which he was unable to timely formulate a defense. This allegation is flatly contradicted by the record in this case. The docket entries show that Trotman’s complaint was filed on March 12, 1991, and that Mecchella’s answer was filed March 27, 1991.

Mecchella also argues that the evidence was insufficient because it did not support a finding of negligence, or a finding that his conduct was outrageous and merited punitive damages. Initially, we note that the findings of a trial judge in a non-jury case are given the same weight and effect on appeal as a jury verdict. Mancini v. Morrow, 312 Pa.Super. 192, 458 A.2d 580 (1983). We will not disturb the findings of the trial judge on appeal unless they are predicated on errors of law or unsupported by competent evidence of record. Id. In addition, we are required to consider the evidence in the light most favorable to the verdict winner. Id. Our role on appeal is to determine whether the findings of fact are supported by competent evidence and whether the trial court committed error in any application of the law. Rivera v. Phila. Theological Seminary, 398 Pa.Super. 264, 580 A.2d 1341 (1990). In this case, we find that the trial court correctly applied the law, and that the court’s holding is supported by competent evidence.

As to Mecchella’s first allegation of error, we note that at trial, Mecchella’s counsel argued that since Mecchella’s plea was nolo contendere and not a plea of guilty, the plea could not have been used as an admission of guilt to the conspiracy charge. Counsel argued that the trial court impermissibly used the conviction as evidence in the negligence action against Mecchella. We disagree.

At Mecchella’s personal injury bench trial, Mecchella testified that on the night of the incident, he had been driving his companions throughout Philadelphia in his car all night. He testified that they had been drinking, that he knew the gun was in the car, and that the gun was being randomly fired out of the car windows while the car was moving. (N.T., 7/24/91 at 28-29.) In pronouncing its decision on the case, the trial court stated:

At no time did the defendant take any steps to remove the user of the rifle from the car or to restrain him from such reckless actions, and in my opinion that was grossly reckless and negligent conduct. And for that reason I found in favor of the plaintiff and awarded damages in the amount of $150,000.00 for the loss of an eye. This was a young man who was going to have problems with his eye forever and I felt that the negligence and recklessness of the defendant was so gross in character that it warranted the addition of punitive damages in the amount of $50,000.00. As to the plea of nolo contendere, there was testimony offered at the time of trial that the defendant was charged with conspiracy to commit an assault on the plaintiff. He was represented by counsel and that charge arose out of this incident. He was represented by counsel and at the criminal trial he entered a plea of nolo contendere, which he was told and which he conceded at this trial was—he understood was equivalent to a guilty plea. He was sentenced to some five years of probation. However, the criminal charges had no effect on my decision. I found on the fact issues alone in favor of the plaintiff and against the defendant for the reasons stated.

(N.T., 4/7/92, at 13-14.)

Mecchella’s assertion that the evidence was insufficient to support the verdict is without merit. While the court mentioned Mecchella’s plea of nolo contendere, the court did not rely on it in its finding of liability for compensatory damages. The court held that the other factual evidence before it was the basis for its holding. The court’s ruling was in compliance with the law of this Commonwealth:

A plea of nolo contendere, when accepted by the court is, in its effect upon the case, equivalent to a plea of guilty. It is an implied confession of guilt only, and cannot be used against the defendant as an admission in any civil suit for the same act. The judgment of conviction follows upon such plea as well as upon a plea of guilty.

Eisenberg v. Com., Dept. of Public Welfare, 512 Pa. 181, 185, 516 A.2d 333, 335 (1986) (citations omitted). The court stated on the record the reasons for its liability finding, and clearly stated that the conviction was not evidence by which the court found an admission or on which the court relied to arrive at a finding of negligence. We find no error in the court’s judgment. Mecchella’s first allegation of error therefore fails.

Mecchella’s final contention of trial court error is that the evidence was insufficient to sustain the punitive damage award. We disagree.

We know that in order to impose punitive damages, the wrongful conduct must be outrageous. Conduct is outrageous when it is “malicious, wanton, reckless, willful or oppressive”. Rizzo v. Haines, 520 Pa. 484, 506, 555 A.2d 58, 69 (1989). Such conduct must show the actor’s evil motive or reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984).

Hess v. Hess, 397 Pa.Super. 395, 399, 580 A.2d 357, 359 (1990). The determination of whether a person’s actions amount to outrageous conduct lies within the sound discretion of the fact finder, and will not be disturbed by an appellate court so long as there is no abuse of discretion. Kirkbride v. Lisbon, 385 Pa.Super. 292, 560 A.2d 809 (1989). In this case, the trial court found that Mecchella’s act of driving around Philadelphia while intoxicated, with his intoxicated companions shooting a BB gun randomly out of the moving car, was sufficiently outrageous to support an award of punitive damages. We find no abuse of discretion in the trial court’s ruling. Mecchella’s final allegation of error fails.

For the reasons stated above, judgment affirmed.