author: KELLY, Judge: FORD ELLIOTT, Judge,

text:
    609 A.2d 540
    COMMONWEALTH of Pennsylvania v. Gregory PETERFIELD, Appellant.
    Superior Court of Pennsylvania.
    Argued May 14, 1991.
    Filed May 14, 1992.
    Reargument Denied July 16, 1992.

      Owen Larrabee, Asst. Public Defender, Philadelphia, for appellant.
    Norman Gross, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before McEWEN, KELLY and FORD ELLIOTT, JJ.
   KELLY, Judge:

Appellant appeals from an order denying a Writ of Certiorari to the Court of Common Pleas of Philadelphia. We affirm.

The facts and procedural history may be briefly summarized as follows. On November 19, 1988, at approximately 12:50 p.m., Philadelphia Police Officer George Hoy was approached while on duty in his patrol wagon by an unidentified citizen who told him that a six foot tall black male, with a beard, a three-fourth length ski jacket, a blue knit hat, and dark colored pants was in the parking lot of a nearby supermarket acting “suspiciously.” N.T. 3/20/89 at 4. Officer Hoy immediately proceeded to the location where he observed appellant, who matched the description, quickly leaving the parking lot. Officer Hoy then directed appellant to stop. He did not. Instead, appellant put his left hand inside his coat pocket and fled. Officer Hoy gave chase, but it was to no avail. Appellant successfully escaped, leaving behind what Officer Hoy later recovered and identified as a loaded .25 caliber automatic handgun.

A short time later, other officers, who had been advised of the foregoing facts, encountered appellant and arrested him. Appellant was charged with carrying a firearm without a license and carrying firearms on the public streets of Philadelphia. A motion to suppress the handgun was filed and denied. Appellant was thereafter tried and convicted of both charges in Philadelphia Municipal Court. Appellant timely filed a petition for a Writ of Certiorari which was denied by order of the Honorable Edward E. Russell of the Court of Common Pleas. This timely appeal followed.

On appeal, appellant contends that the court erred in failing to suppress the gun which conclusively established his guilt at trial. His sole argument is that his right to be free of unreasonable searches and seizures as guaranteed under both the United States Constitution and the Pennsylvania Constitution was violated because Officer Hoy lacked probable cause or reasonable suspicion to direct him to stop as he was leaving the parking lot. Appellant maintains that, notwithstanding the fact that he did not comply and, in fact, successfully eluded Officer Hoy, the gun retrieved after the unsuccessful pursuit of him must be suppressed as fruit of an unconstitutional “seizure.” We cannot agree.

Under the United States Constitution, appellant’s claim is manifestly flawed. In the recent case, California v. Hodari D., — U.S. -, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the United States Supreme Court was presented with a fact scenario which is materially indistinguishable from that sub judice. In Hodari D., police encountered a group of youths, including Hodari, who had gathered at a street corner. When police officers approached, the youths quickly dispersed and fled. Police ran after Hodari who, while being chased, tossed away, what appeared to be a small, rock, but later proved to be crack cocaine. An order denying a motion to suppress the cocaine was entered, but later reversed by the intermediate appellate level court of California. The state thereafter successfully petitioned the United States Supreme Court to review the order which reversed the refusal to suppress. Hodari, as respondent, argued that although he had not yet been caught when he discarded the cocaine, he was nonetheless “seized” for the purposes of the Fourth Amendment. A 7-2 majority of the United States Supreme Court disagreed:

The language of the Fourth Amendment, of course, cannot sustain respondent’s contention. The word “seizure” readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. (“She seized the purse-snatcher, but he broke out of her grasp.”) It does not remotely apply, however, to the prospect of a policeman yelling “Stop, in the name of the law!” at a fleeing form that continues to flee. That is no seizure. Nor can the result respondent wishes to achieve be produced— indirectly, as it were—by suggesting that Pertoso’s [the officer’s] uncomplied-with show of authority was a common-law arrest, and then appealing to the principle that all common-law arrests are seizures. An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.

Id., — U.S. at-, 111 S.Ct. at 1550-51, 113 L.Ed.2d at 697 (emphasis added).

Here, no physical force was applied to appellant and he did not submit to the assertion of authority. Rather, when police asserted their authority by requesting him to stop, appellant chose not to comply and immediately fled the scene. Such flight, of course, did not alone give police cause to arrest him. See Commonwealth v. Jeffries, 454 Pa. 320, 325, 311 A.2d 914, 917 (1973); Commonwealth v. Martinez, 403 Pa.Super. 125, 128, 588 A.2d 513, 514 (1991). The success of it, however, does prevent this Court from considering him “seized” for the purposes of the Fourth Amendment. See California v. Hodari D., supra. Thus, under the United States Constitution, appellant’s assertion, that probable cause or reasonable suspicion was necessary to justify police action taken before their recovery of the gun must fail. For the purposes of the Fourth Amendment, we need not even evaluate what, if any, suspicion the police had before they retrieved the gun since appellant was not, at that point, “seized.” See id.

The flaw in appellant’s argument under the Pennsylvania Constitution is perhaps less obvious, but no less fatal. It is of course true that Pennsylvanians’ may adopt a state constitution which imposes greater limitations upon the state, and that Pennsylvania courts may (indeed must) give effect to any such decision to do so. As our Supreme Court most recently reaffirmed in Commonwealth v. Edmunds, 526 Pa. 374, 389, 586 A.2d 887, 894-95 (1991),

Here in Pennsylvania, we have stated with increasing frequency that it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated. Although we may accord weight to federal decisions where they “are found to be logically persuasive and well reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees,” Commonwealth v. Tarbert, 517 Pa. 277, 283, 535 A.2d 1035, 1038 (1987), quoting, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502 (1977), we are free to reject the conclusions of the United States Supreme Court so long as we remain faithful to the minimum guarantees established by the United States Constitution.

Instantly, for appellant to gain relief under the Pennsylvania Constitution, he must establish that Article I, Section 8 of the Pennsylvania Constitution, unlike the Fourth Amendment of the federal constitution, must be interpreted so as to consider an individual “seized” in the absence of an application of actual physical force or the submission to the assertion of authority. However, appellant has not cited, and we cannot find, support for any such proposition. Indeed, no case which we have uncovered has held, suggested or even intimated that a distinction between the Pennsylvania and United States Constitutions exists with regard to the definition of the term “seizure.” Rather, the only Pennsylvania cases defining when a “seizure” of the person occurs are based solely upon interpretations of the term “seizure” as used in the United States Constitution, not the Pennsylvania Constitution. See e.g. Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979) (interpreting Pennsylvania cases following Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977) (same); Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977) (same); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973) (same); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973) (finding Terry v. Ohio, supra, controlling); Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970) (same); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969) (same); Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989) (interpreting Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)); Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984) (quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973)); Commonwealth v. Williams, 287 Pa.Super. 19, 429 A.2d 698 (1981) (interpreting Pennsylvania cases following Terry v. Ohio, supra); Commonwealth v. Howell, 213 Pa.Super. 33, 245 A.2d 680 (1968) (interpreting Pennsylvania cases following Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963)). These cases are limited to the logic that gave them birth. Thus, to the extent that their holdings conflict with the United States Supreme Court’s most recent definition of the term “seizure,” they must be seen as having been overruled, sub silentio, by California v. Hodari D., supra, as the United States Supreme Court is always the final arbiter of the United States Constitution. See Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958).

Moreover, appellant has not properly asked us herein to declare that such a distinction between the constitutions exists. His failure to do so prevents us from finding any merit to his appeal.

In Commonwealth v. Edmunds, supra, our Supreme Court held,

The recent focus on the “New Federalism” has emphasized the importance of state constitutions with respect to individual rights and criminal procedure. As such, we find it important to set forth certain factors to be briefed and analyzed by litigants in each case hereafter implicating a provision of the Pennsylvania constitution. The decision of the United States Supreme Court in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), now requires us to make a “plain statement” of the adequate and independent state grounds upon which we rely, in order to avoid any doubt that we have rested our decision squarely upon Pennsylvania jurisprudence. Accordingly, as a general rule it is important that litigants brief and analyze at least the following four factors:
1) text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania case-law;
3) related case-law from other states;
4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.
Depending upon the particular issue presented, an examination of related federal precedent may be useful as part of the state constitutional analysis, not as binding authority, but as one form of guidance. However, it is essential that courts in Pennsylvania undertake an independent analysis under the Pennsylvania Constitution.

Id., 526 Pa. at 390-391, 586 A.2d at 894-95 (footnotes omitted) (emphasis added). Our Supreme Court’s emphasis on the importance of the proper briefing and review of state constitutions vis a vis individual rights and criminal procedure may not be discounted. We discern from the Edmunds decision, which imposes a “general rule” upon the litigants to “in each case ... brief and analyze at least the ... four factors” set forth therein, that a procedural prerequisite to review of any claim regarding a distinction between the state and federal constitutions has been imposed. We must, therefore, decline review of the merits of any such claim raised without the benefit of such briefing or analysis.

Here, appellant’s brief not only lacks any analysis as to the four factors identified in Edmunds, it lacks even a contention that a distinction between the constitutions exists. Appellant has apparently presumed that he was “seized” for the purposes of both constitutions, and has thus placed in his brief arguments relating only to the degree of probable cause or reasonable suspicion held by the police officers at the time police began chasing appellant. Under these circumstances it would be particularly inappropriate for this Court to address any question as to a distinction between the constitutions. Such sua sponte review of a claim would impermissibly “deprive[ ] counsel of the opportunity to brief and argue the issue[ ] and the court of the benefit of counsel’s advocacy.” Wiegand v. Wiegand, 461 Pa. 482, 485, 337 A.2d 256, 257 (1975); see also Commonwealth v. Butler, 529 Pa. 7,-, 601 A.2d 268, 275 (1991) (Papadakos, J., dissenting). We are mindful of the fact that our Supreme Court has not hesitated in the past to reverse this Court where we have reviewed issues not raised by the parties. See e.g., Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985); Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984); accord see Commonwealth v. Butler, supra, 529 Pa. at-, 601 A.2d at 275 (Papadakos, J., dissenting) (citing cases). This is perhaps especially true where this Court has raised constitutional questions of its own accord. See Wiegand v. Wiegand, supra, 461 Pa. at 485, 337 A.2d at 257 (holding that “[t]he Superior Court by sua sponte deciding the constitutional issues [i.e. whether the Divorce Law violated the Equality of Rights Amendment to the Pennsylvania Constitution] exceeded its proper appellate function of deciding controversies presented to it.”). Thus, in the absence of an appropriate request to do so, we are unauthorized to question for the first time whether the term “seizure,” as used in the Pennsylvania Constitution, affords appellant greater rights than does the federal definition of the same term. Accordingly, we are compelled to consider that, at this point at least, appellant’s rights against the state in this case are not protected to any greater extent by the Pennsylvania Constitution.

CONCLUSION

In short, we find that since no application of actual physical force was used and appellant did not submit, but rather fled upon the assertion of police authority, appellant was not “seized” for the purposes of the Fourth Amendment. Appellant has neither cited support for, nor asked us to find, a distinction between the federal and state constitutions in this regard. We must, therefore, conclude that no probable cause or reasonable suspicion was necessary to recover the “fruit” of the unsuccessful chase. Accordingly, we find his claim on appeal to be without merit.

Order AFFIRMED.

McEWEN, J., concurs in the result of the opinion by Kelly, J.

FORD ELLIOTT, J., files a dissenting opinion.

FORD ELLIOTT, Judge,

dissenting.

I must respectfully dissent. On appeal, appellant presents both a Federal and state constitutional claim and asks this court to determine whether the court below erred in denying appellant’s motion to suppress physical evidence, where the underlying facts did not amount to reasonable suspicion for an investigatory stop, nor cause to arrest. It is appellant’s assertion that the evidence did not support reasonable suspicion or probable cause; therefore, the physical evidence obtained as a result of unlawful police activity should have been suppressed under a theory of forced abandonment.

In response to this argument, the Commonwealth suggests that we need not decide whether the officer had reasonable suspicion to attempt to stop appellant, where such attempt was thwarted by appellant’s decision to run from the officer. The Commonwealth argues that there was no seizure, since appellant fled from the officer; hence, the theory of forced abandonment is factually inapplicable. This theory is premised on the United States Supreme Court decision in California v. Hodari, — U.S.-, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Hodari was decided April 23, 1991, just prior to oral argument in this case, and the Commonwealth presented it to the court at that time. While preserving the responsive arguments presented in its brief, that the police had justification to stop appellant and that in any case the issue is waived, the Commonwealth advocated the adoption in this Commonwealth of the Hodari decision.

I acknowledge and appellant concedes that his Federal question is no longer a viable claim in light of the Supreme Court decision in Hodari. The majority decides that because appellant’s state constitutional argument does not address the standard announced in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), he is precluded from raising it at this time, and we, as an appellate court, are further precluded from addressing this claim. However, Hodari was filed just three weeks before the instant case was argued, and more than one month after briefs herein were filed. The briefing standard directed by Edmunds only applies when federal law deviates from past precedent, disrupting state law which depended thereon. Clearly, there was no need for either party to address the Edmunds standard in their briefs where, prior to the Hodari decision, the state and federal constitutional claims presented herein were co-extensive. Therefore, the failure to comply with the Edmunds briefing directive should not preclude this court from undertaking its own independent analysis under the Pennsylvania Constitution. Contrary to the majority’s assessment, I find that Edmunds requires us to make such an independent analysis.

Undeniably, the facts herein are similar to those in Hodari. In Hodari, plain-clothed officers were patrolling a high-crime section of Oakland, California, when they spotted several youths congregated around a car which was parked on a curb. Upon seeing the officers' unmarked car, the group took flight in different directions. With suspicions aroused, the officers pursued the youths. During a foot chase between Hodari and one officer, Hodari tossed a small rock-like object, and was thereafter tackled and handcuffed. A pager and $130 in cash were found on Hodari, and the abandoned property was determined to be crack cocaine.

At trial, Hodari’s motion to suppress the evidence was denied. On appeal, the appellate court reversed, finding that Hodari had been seized at the time he abandoned the property, and the seizure was in violation of the Fourth Amendment. On certiorari to the Supreme Court, California conceded that the officers did not have the requisite reasonable suspicion to stop Hodari. However, the state argued that the more appropriate inquiry was whether Hodari had been seized when he abandoned the property where the officer’s attempt to stop Hodari had been unsuccessful. The court adopted California’s argument and permitted the inquiry to overstep a question of whether reasonable suspicion existed for a Terry stop, where such attempted stop was thwarted by a fleeing suspect. The opinion, authored by Justice Scalia, utilized a common law approach to the question of seizure and arrest and reasoned that a seizure had not occurred where Hodari refused to submit to the officer’s show of authority and, therefore, there was not a restraint on Hodari’s liberty. Concluding that Hodari had not been seized, the court reasoned that the crack cocaine was abandoned property, which was lawfully recovered by the police and was admissible evidence against Hodari. Hodari, supra.

Instantly, we have an almost identical factual situation. Appellant was approached by a police officer who did not have reason to suspect appellant of criminal activity, but was acting on the reported observation of a passerby that appellant was “acting suspiciously.” As in Hodari, the uniformed officer made a show of authority, which in this case was ordering appellant to “stand fast.” Despite the officer’s attempt to detain appellant, appellant fled the scene. Under an Hodari analysis, we must refrain from inquiring whether the officer had reasonable suspicion to attempt to stop appellant; instead, we focus our analysis on whether appellant was seized at the point where he abandoned the weapon. According to Hodari, appellant’s failure to submit to the officer’s show of authority negates a finding of “seizure” under the Fourth Amendment, since a restraint on appellant’s liberty was never culminated. Thus, appellant’s abandonment of the weapon was voluntary; thereafter, the gun was lawfully retrieved abandoned property and could be used against appellant at trial.

I consider Hodari to represent a radical departure from the law of this Commonwealth on forced abandonment. Heretofore, case law in this jurisdiction has substantiated the use of a two-step analysis when resolving forced abandonment issues. For example, in Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973), our supreme court was presented with a Fourth Amendment forced abandonment challenge and determined that the abandonment of drugs by a defendant during a police chase was coerced. The facts in Jeffries were as follows:

On the afternoon of November 6, 1970, four police officers in an unmarked police automobile observed Jeffries walking along a public street in Pittsburgh. One officer testified when Jeffries saw the officers, he ‘quickened his pace.’ Upon seeing him do so, the officer left the police vehicle and started to pursue Jeffries, who then began to run. While giving chase, the officer observed Jeffries throw a cigarette package under an automobile parked along the street. Shortly thereafter, the officer overtook Jeffries and directed him to stand against a wall. At that moment the other officers arrived on the scene and they were told by the officer, who apprehended Jeffries, to ‘hold him one minute.’ The officer then recovered the cigarette package from underneath the parked vehicle, and it was found to contain several foil-wrapped packages of a substance later determined to be heroin.

Id., 454 Pa. at 322, 311 A.2d at 916. Finding that flight in and of itself is not sufficient to constitute probable cause for an arrest, the court looked to Terry to determine if the officers had reasonable suspicion to initiate the chase.

Instantly, there is not one fact which would give rise to the reasonable belief Jeffries was involved in criminal activity. Jeffries was simply walking along a public street in Pittsburgh in broad daylight and when he saw a police officer he knew, he ‘quickened his pace’ and started to run when the officer began to chase him. This is not enough to justify a seizure under Terry, as interpreted by this Court, absent some other factor which would give rise to suspicion of criminal conduct.
Thus, it is clear the police had no right to ‘arrest’ or ‘seize’ Jeffries and the action of the police in chasing him and subsequently arresting him was a violation of his Fourth Amendment rights.
... The causative factor in the abandonment presently under consideration was the unlawful and coercive action of the police in chasing Jeffries in order to seize him. This is not a situation where the party spontaneously abandons the property upon sight of the police, or where the police are not involved in an unlawful act towards the accused. Cf. Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). We instantly have an unlawful act which motivated the abandonment.

Id. 454 Pa. at 325-27, 311 A.2d at 917-918.

In Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979), a case factually similar to Jeffries, our supreme court again reviewed a forced abandonment question within the context of a police chase. The Barnett court looked to a prior Pennsylvania Supreme Court case to analyze whether the defendant, who had not been ordered to halt by the police or stopped in any other way, was in fact seized or merely approached for questioning by the officers when the chase ensued. The court quoted from Commonwealth v. Jones, 474 Pa. 364, 371, 378 A.2d 835, 839 (1977), as follows:

... If a citizen approached by a police officer is ordered to stop or is physically restrained, obviously a ‘stop’ occurs. Equally obvious is a situation where a police officer approaches a citizen and addresses questions to him, the citizen attempts to leave, and the officer orders him to remain or physically restrains him; here too a ‘stop’ occurs. A more difficult situation arises where no order or physical restraint is involved and the citizen does not attempt to walk away.

Clearly, for the Jones court, a police officer’s mere command to stop represented an obvious seizure for Terry purposes.

Applying the Jones analysis to the facts before it, the Barnett court determined that the defendant had been seized and then utilized a Terry approach to analyze the legality of the police conduct. I find the following language instructive.

In the instant case, the facts are clear that Officers Devereau and Wallace were attempting to stop appellee. As there was nothing, on which to base a belief that criminal activity was afoot, appellee was free to walk away. Yet, when he attempted to leave, the officers chased him down the street. Under these circumstances, the suppression court was correct in finding that the officers did more than merely approach appellee for the purpose of allowable questioning. The police conduct here amounted to a coercive factor which was the main reason that appellee abandoned the weapon.

Barnett, 484 Pa. at 215-16, 398 A.2d at 1021.

In Commonwealth v. Jones, supra, our supreme court adopted a wholly objective standard for determining what amount of force constitutes the initiation of a Terry stop. As noted above, the court recognized that the line of distinction between a police officer merely approaching a citizen for questioning and actually making a forcible stop is not subject to precise definition because of the myriad situations by which police and citizens encounter each other on the street. For purposes of analyzing when an encounter escalates into a forcible stop, the court looked to the totality of circumstances in determining whether a reasonable person would have felt that his freedom was restrained.

Thus, to determine when a ‘stop’ has occurred in the more difficult situation all of the circumstances which may in any way evidence a show of authority or exercise of force including such subtle factors as the demeanor of the police officer, the location of the confrontation, the manner of expression used by the officer in addressing the citizen, and the content of the interrogatories or statements must be examined. Once this factual examination has been made, the pivotal inquiry is whether, considering all of the facts and circumstances evidencing an exercise of force, ‘a reasonable man, innocent of any crime, would have thought [he was being restrained] had he been in the defendant’s shoes.’

Jones, 474 Pa. at 372-73, 378 A.2d at 839-840 (citation omitted).

In Commonwealth v. Williams, 287 Pa.Super. 19, 429 A.2d 698 (1981), Jones was again found to be instructive on the question of when a coercive stop occurs. For purposes of applying a Terry analysis, the Williams court relied upon the objective reasonable person inquiry as enunciated in Jones. As noted by Judge Hoffman, this reasonable person inquiry was subsequently adopted by the U.S. Supreme Court in U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Mendenhall recognized the varied nature of police/citizen encounters and attempted to establish guidelines for judging the coercive nature of such interactions.

We adhere to the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’ United States v. Martinez-Fuerte, 428 U.S. 543, 554, 49 L.Ed.2d 1116, 96 S.Ct. 3074. As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.
Moreover, characterizing every street encounter between a citizen and the police as a ‘seizure,’ while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. ‘Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515, [83 S.Ct. 1336, 1344, 10 L.Ed.2d 513].’ Schneckloth v. Bustamonte, 412 U.S. [218], at 225, 36 L.Ed.2d 854, 93 S.Ct. 2041 [2046].
We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. See Terry v. Ohio, supra, [392 U.S.] at 19, n. 16, 20 L.Ed.2d 889, 88 S.Ct. 1868 [1879, n. 16], 44 Ohio Ops.2d 838; Dunaway v. New York, 442 U.S. 200, 207, and n. 6, 60 L.Ed.2d 824, 99 S.Ct. 2248 [2253, and n. 6]; 3 W. LaFave, Search and Seizure 53-55 (1978).

Id. 446 U.S. at 553-55, 100 S.Ct. at 1877, 64 L.Ed.2d at 509.

In Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), the U.S. Supreme Court reaffirmed the reasonable person inquiry as a test for the coerciveness of police conduct in a forced abandonment case. In that case, the defendant began to flee after seeing a police vehicle. The police drove alongside him for a brief time to investigate. During this time, the defendant discarded the contraband. The Supreme Court applied the reasonable person inquiry in determining that the police conduct was not so intimidating that a reasonable person could have believed his freedom was curtailed.

In Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989), this court cited to Chesternut and Jones in analyzing yet another forced abandonment situation. In reviewing the settled law in this Commonwealth, Judge Beck stated:

We note that the Chestemut decision is consistent with Pennsylvania search and seizure jurisprudence. For many years, Pennsylvania courts have applied a similar test in order to determine whether a defendant abandoned property as a result of an illegal police seizure of the person.

Id., 388 Pa.Superior Ct. at 192, 565 A.2d at 179. Also see Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513 (1991).

What seems abundantly clear from a careful examination of the case law and the policy considerations formulated therein, is that to date in this jurisdiction a show of authority by a police officer does, in fact, represent a seizure for purposes of constitutional inquiry, and that this inquiry has consistently centered upon an objective reasonable person test.

Consequently, Justice Scalia’s opinion in Hodari represents a marked departure from this objective test as adopted by our own supreme court in Jones. The majority in Hodari saw the issue as whether the police officer’s pursuit qualified as a “seizure.” The court characterized the narrow question to be decided as “whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield.” Hodari 111 S.Ct. at 1550.

Justice Scalia, speaking for the court, determined “the word ‘seizure’ readily bears the meaning of laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.” Hodari 111 S.Ct. at 1550. Hence the court held that a show of authority by a police officer such as a command to halt or stop when directed at a fleeing suspect who does not heed the command does not represent a “seizure” for Fourth Amendment purposes and therefore the discarding of contraband during the ensuing chase may not be characterized as a forced abandonment. In discussing the court’s prior Mendenhall test for “seizure,” it was stated

Respondent contends that his position is sustained by the so-called Mendenhall test, formulated by Justice Stewart’s opinion in United States v. Mendenhall, 446 U.S. 544, 554 [100 S.Ct. 1870, 1877, 64 L.Ed.2d 497] (1980), and adopted by the Court in later cases, see Michigan v. Chestemut, 486 U.S. 567, 573 [108 S.Ct. 1975, 1979, 100 L.Ed.2d 565] (1988); INS v. Delgado, 466 U.S. 210, 215 [104 S.Ct. 1758, 1762, 80 L.Ed.2d 247] (1984): ‘A person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ 446 U.S., at 554 [100 S.Ct., at 1877]. See also Florida v. Royer, 460 U.S. 491, 502 [103 S.Ct. 1319, 1327, 75 L.Ed.2d 229] (1983) (opinion of White, J.). In seeking to rely upon that test here, respondent fails to read it carefully. It says that a person has been seized ‘only if,’ not that he has been seized ‘whenever’; it states a necessary, but not a sufficient condition for seizure—or, more precisely, for seizure effected through a ‘show of authority.’ Mendenhall establishes that the test for existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person. Application of this objective test was the basis for our decision in the other case principally relied upon by respondent, Chester-nut, supra, where we concluded that the police cruiser’s slow following of the defendant did not convey the message that he was not free to disregard the police and go about his business. We did not address in Chestemut, however, the question whether, if the Mendenhall test was met—if the message that the defendant was not free to leave had been conveyed—a Fourth Amendment seizure would have occurred. See 486 U.S., at 577 [108 S.Ct., at 1981] (Kennedy, J., concurring).

Hodari 111 S.Ct. at 1551 (emphasis in original).

In dissent, Justice Stevens takes issue with the majority’s interpretation of the Mendenhall test and finds that such a narrow interpretation marks an unnecessary departure from Fourth Amendment case law as far back as the Supreme Court decisions in Terry and Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The Court fares no better when it tries to explain why the proper definition of the term ‘seizure’ has been an open question until today. In Terry, in addition to stating that a seizure occurs ‘whenever a police officer accosts an individual and restrains his freedom to walk away,’ the Court noted that a seizure occurs ‘when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen----’ The touchstone of a seizure is the restraint of an individual’s personal liberty ‘in some way.’ Today the Court’s reaction to respondent’s reliance on Terry is to demonstrate that in ‘show of force’ cases no common-law arrest occurs unless the arrestee submits. That answer, however, is plainly insufficient given the holding in Terry that the Fourth Amendment applies to stops that need not be justified by probable cause in the absence of a full-blown arrest.
In United States v. Mendenhall, the Court ‘adherefd] to the view that a person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained.’ The Court looked to whether the citizen who is questioned ‘remains free to disregard the questions and walk away,’ and if she is able to do so, then ‘there has been no intrusion upon that person’s liberty or privacy’ that would require some ‘particularized and objective justification’ under the Constitution. The test for a ‘seizure/ as formulated by the Court in Mendenhall, was whether, ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ... The Court’s unwillingness today to adhere to the ‘reasonable person’ standard, as formulated by Justice Stewart in Mendenhall, marks an unnecessary departure from Fourth Amendment case law.
... Finally, it is noteworthy that in Michigan v. Ckesternut the State asked us to repudiate the reasonable person standard developed in Terry, Mendenhall, Delgado, and Royer. We decided, however, to ‘adhere to our traditional contextual approach.’ In our opinion, we described Justice Stewart’s analysis in Mendenhall as ‘a test to be applied in determining whether “a person has been ‘seized’ within the meaning of the Fourth Amendment” ’ and noted that ‘[t]he Court has since embraced this test.’ Moreover, in commenting on the virtues of the test, we explained that it focused on the police officer’s conduct:
‘The test’s objective standard—looking to the reasonable man’s interpretation of the conduct in question— allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.’ Id. [446 U.S.] at 574 [100 S.Ct. at 1887].
Expressing his approval of the Court’s rejection of Michigan’s argument in Chestemut, Professor LaFave observed:
‘The “free to leave” concept, in other words, has nothing to do with a particular suspect’s choice to flee rather than submit or with his assessment of the probability of successful flight. Were it otherwise, police would be encouraged to utilize a very threatening but sufficiently slow chase as an evidence-gathering technique whenever they lack even the reasonable suspicion needed for a Terry stop.’ 3 W. LaFave, Search and Seizure § 9.2, p. 61 (2d ed. 1987, Supp.1991).
Whatever else one may think of today’s decision, it unquestionably represents a departure from earlier Fourth Amendment case law____ Moreover, by narrowing the definition of the term seizure, instead of enlarging the scope of reasonable justifications for seizures, the Court has significantly limited the protection provided to the ordinary citizen by the Fourth Amendment.

Hodari 111 S.Ct. at 1556-59 (citations omitted) (emphasis in original).

In line with our mandate in Edmunds, I find the views expressed by Justice Stevens, in dissent, far more consonant with the long standing constitutional law of search and seizure in this Commonwealth. This line of precedent defines clearly the meaning of seizure and the implications of constitutional protections in this Commonwealth. To adopt Justice Scalia’s rationale in Hodari would radically alter the long line of precedent in this jurisdiction on the definition of forced abandonment. I would argue strenuously that this is something we as an intermediate appellate court may not do, and as a matter of Pennsylvania Constitutional jurisprudence it is unwise to do.

To the extent that the majority states Hodari has overruled past precedent in this Commonwealth sub silentio, preventing this court from addressing the matter on our own, I vehemently disagree. Even though a state constitutional provision has been interpreted as co-extensive with a federal constitutional provision, “[w]hen confronted with a change in federal precedent a state court need not, however, continue to adhere to the concept of co-extensiveness. Several courses are open to a state court. The state court is free to reinterpret the source of the prior state constitutional requirement.” See Edmunds, supra; Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982); Commonwealth v. Henderson, 496 Pa. 349, 437 A.2d 387 (1981); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975). Echoing the majority's concern for our proper role as an intermediate court, I would propose that “until a change in federal constitutional requirements is ratified by the Pennsylvania Supreme Court, a lower Pennsylvania court must treat an analogous state constitutional claim as a matter of independent constitutional interpretation, no matter how closely federal authority has been followed in the past.” See Zettlemoyer, supra; Henderson, supra; and Triplett, supra.

Returning to the instant case, I believe we must apply the objective standard adopted by our Supreme Court in Jones to answer the first question in our two-step inquiry; i.e., whether appellant was seized at the time he discarded the firearm. Specifically, I believe we are required to resolve whether a reasonable person in appellant’s position would have concluded that his freedom was curtailed by the officer’s conduct in ordering him to stand fast, then chasing him when he ran. I conclude that appellant had been seized where, in exercising his right to disregard the officer’s order, appellant was nevertheless pursued and tackled by the police. My determination parallels that of our supreme court’s assessment in Jones, Jeffries, and Barnett that a reasonable person would have felt he was not free to go about his business thereby implicating the protections of Article I, Section. 8, of the Pennsylvania Constitution.

Proceeding to the second step of our analysis, I find that the constitutionality of the police conduct herein must be measured by the circumstances as they existed at the time of the initial show of authority—the officer’s command to stand fast. Therefore, my analysis focuses on whether Officer Hoy had a reasonable suspicion that appellant was engaging in criminal activity.

The sum and substance of Officer Hoy’s testimony at the suppression hearing was as follows: While on duty near the comer of Wayne and Chelton, he was approached by a civilian who said there was a black male in the parking lot of the Super Fresh and that he was acting suspiciously. Based on the civilian’s description of the black male, the officer identified the appellant as he was exiting the parking lot. The officer then ordered appellant to stand fast and appellant, placing his left hand inside his pocket, started to run. The officer pursued him, for close to seventy-five yards, when appellant threw the firearm which he was carrying into the bushes. The firearm was retrieved by the officer and appellant was apprehended shortly thereafter by another officer in a patrol wagon.

The Commonwealth would argue that the information supplied to the officer by a disinterested civilian and the flight of appellant are two independent factors suggesting appellant’s involvement in criminal activity. With regard to the first factor, the Commonwealth contends that a disinterested civilian’s characterization of conduct as suspicious suggests in and of itself criminal activity. I disagree. It is not the civilian’s assessment of the conduct which is relevant but rather the independent assessment of the report by the police officer. For it is the officer who must have formed the reasonable suspicion, based on articulable facts, that criminal activity was afoot. My review of Officer Hoy’s testimony does not reveahjany facts upon which he might have formed such a reasonable suspicion.

As to the second independent factor suggested by the Commonwealth that appellant’s flight from police should be considered, I find Jeffries and Barnett controlling on this issue. Absent articulable facts which would have led Officer Hoy to conclude that appellant was involved in criminal activity as he exited the parking lot, appellant’s flight cannot be used to justify a Terry stop as defined by Pennsylvania law. As in Jeffries and Barnett, I find that absent reasonable suspicion, the officer’s actions in pursuing appellant were not only unlawful, but also the causative factor in appellant’s abandonment of the firearm. Consequently, the evidence should have been suppressed.

My belief that we should refuse to adopt the decision of the United States Supreme Court in Hodari does not represent a change or departure from the current state of the law within this jurisdiction; rather, it reaffirms the long line of precedent in this Commonwealth on the issue of forced abandonment, as it relates to the protections embodied in Article I, Section 8 of this Commonwealth’s constitution. Consequently, I would reverse the judgment of sentence and remand the case for a new trial.

      . 18 Pa.C.S.A. §§ 6106 & 6108.

      . Appellant argues in his brief that:
      Since the officer possessed neither probable cause to arrest nor justification for an investigatory stop, the intrusion that forced appellant’s abandonment of the weapon was unlawful, and in violation of the Fourth Amendment to the United States Constitution and Article I, § 8 of the Pennsylvania Constitution.
      Appellant’s Brief at 5. The Commonwealth contends, however, that appellant has waived for the purposes of appeal the question of whether reasonable suspicion existed to justify an investigatory stop since appellant argued to the suppression court only that probable cause was lacking to arrest him. Due to our disposition, the Commonwealth’s waiver argument is rendered moot. Thus, we need not address this question.

      . See also Commonwealth v. Metz, 412 Pa.Super. 100, 118, 602 A.2d 1328, 1337 (1992) (No. 1632 Pittsburgh 1990) (Kelly, J., concurring) ("The free citizen in a free country such as ours of course retains the discretion to run, walk, crawl or stop ..., and accordingly, neither the police nor the courts can draw any adverse inferences from the exercise of any such discretion").

      . Art. I, Section 8 of the Pennsylvania Constitution provides as follows:
      Security from Searches and Seizures
      Section 8. The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize and person or thing shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
      (Emphasis added). The 4th Amendment of the United States Constitution reads:
      Amendment IV
      “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
      (Emphasis added).

      . Appellant’s presumption in this regard is not, perhaps, surprising, given the fact that the Commonwealth and the trial court also labored under the impression that appellant’s "seizure” was a foregone conclusion. California v. Hodari D., supra, was not filed until shortly before oral argument was heard in this case. However, such facts neither provide an exception to the waiver doctrine nor preclude us from affirming appellant’s conviction based on grounds other than those used by the trial court. See Commonwealth v. Allem, 367 Pa.Super. 173, 532 A.2d 845 (1987). Regardless of the state of the law at the time of appellant’s conviction, we are bound to apply the law as it stands today, on direct appeal. California v. Hodari D., supra, currently stands as the only relevant expression of the point at which a person is “seized.” We are therefore bound to follow it, rather than any previous cases which have been overruled by it, sub silentio.

      . See also, Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984) (finding no evidence of coercive or unlawful police activity when defendants dropped stolen credit cards when officers parked car and began walking toward them without an order to halt or any chase).

      . The court noted that an objective standard was the better test for two reasons:
      (1) a wholly subjective test would require police investigating crime to modify their behavior towards each and every person they approach and thereby result in the police being unable to predict what type of behavior on their part will result in a seizure, cf. Hicks v. United States, 127 U.S.App.D.C. 209, 382 F.2d 158 (1967); and,
      (2) a subjective-objective test, which would require the accused to subjectively conclude he was being restrained and to conclude so reasonably, would not serve the deterrent purpose of the exclusionary rule because a policeman might escalate his exercise of force when confronting persons he believes are not easily restrained by authority.

      . Under Justice Scalia’s reasoning, if the police officer merely touches the suspect before flight, a seizure would occur.

      . The court in Katz concluded that the use of electronic surveillance did constitute a seizure and, therefore, Fourth Amendment protections were triggered.

      . B. Ledewitz, “The State Constitution Assumes New Importance," Pennsylvania Law Journal Reporter, Vol. 7, No. 42 (November 5, 1984) at 1, 10.

      . id.

      . Under the majority’s analysis, if the Supreme Court were to overrule such landmark decisions as Terry v. Ohio, supra, or Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), major portions of Pennsylvania Constitutional jurisprudence regarding search and seizure claims and coerced confessions would fall as well.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    609 A.2d 553
    GENERAL CREDIT COMPANY, Appellant, v. Frederick L. CLECK, Clair K. Lauver, and McVeytown Limited Partnership, Appellees.
    Superior Court of Pennsylvania.
    Argued March 11, 1992.
    Filed May 19, 1992.

      Scott A. Petri, Richboro, for appellant.
    Samuel L. Andes, Lemoyne, for appellees.
    Before POPOVICH, HUDOCK and HESTER, JJ.
   HUDOCK, Judge:

Without benefit of a trial court opinion, we are asked to assess several factual and legal findings by the trial judge regarding a mortgage executed by one joint tenant on property held with another joint tenant with right of survivorship. In response to a petition for declaratory judgment by the non-mortgagor joint tenant Clair Lauver (Lauver), the trial court ordered that the mortgage was null and void. The mortgagee, General Credit Company (General Credit), appeals. We reverse.

The trial court’s brief account of the facts appears at page 57 of the trial transcript. After reviewing the record, we glean the following facts to be undisputed. This case began with the purchase of a piece of real estate known as the McVeytown Property, situated in Mifflin County, Pennsylvania, by Frederick L. Cleck (Cleck) and Lauver in February 1989. They took by deed as joint tenants with right of survivorship. General Credit, a limited partnership engaged in the business of providing loans to developers of Farmer’s Home Administration (FHA) projects, provided the funds necessary for Cleck and Lauver to purchase the McVeytown Property. In October 1989, Cleck signed a promissory note for $60,000.00 from General Credit. Cleck intended to use the loan to meet the operating expenses and job requirements of his FHA construction company, T.R. Construction, Inc. Lauver had no interest in deck’s construction company and apparently would not benefit from the FHA loan. As collateral for the loan, Cleck executed a mortgage for $60,000.00 in favor of General Credit on the McVeytown Property.

General Credit had previous dealings with both Cleck and Lauver. Furthermore, a credit report received less than one month prior to execution of the mortgage indicated that General Credit had notice of the joint tenancy held by Cleck and Lauver on the McVeytown Property. The deed into Cleck and Lauver at Deed Book 0346, page 0390, in the Office of the Recorder of Deeds of Mifflin County also served as notice that Cleck and Lauver held the McVeytown Property as joint tenants with right of survivorship. Despite this notice, General Credit agreed to accept the promissory note and mortgage executed by Cleck alone, relying on a statement in the mortgage regarding deck’s interest in the property: “Ownership: You are the sole owner of the Premises. You have the legal right to mortgage it to us.” Complaint in Law at No. 109-91, Exhibit C—Mortgage between General Credit and Frederick L. Cleck.

Two months after Cleck executed the mortgage on the McVeytown Property, he and Lauver conveyed the property to McVeytown Limited Partnership, of which Cleck and Lauver were general partners. General Credit then filed suit against Cleck, Lauver and McVeytown Limited Partnership under the Uniform Fraudulent Conveyance Act, seeking a reconveyance of the McVeytown Property to Cleck and Lauver. General Credit claimed Cleck and Lauver conveyed the property in fraud of creditors and without adequate consideration. Lauver filed a petition for declaratory judgment, requesting the mortgage be declared null and void as he had no knowledge of the transaction between Cleck and General Credit and did not consent to the mortgage as a lien on his interest in the McVeytown Property. General Credit filed an answer and new matter. The same day Lauver filed his answer to the new matter, a bench trial was held , before the Honorable Francis A. Searer. Transcript of September 24, 1991. Judge Searer entered his order one month later, declaring the note and mortgage for $60,000.00 null and void. Order of October 30, 1991. General Credit filed post-trial motions for relief, which the trial court denied. Declining to write an opinion in this case, Judge Searer stated that he had adequately explained his reasons when rendering his decision. Order of December 20, 1991. While those reasons appear nowhere in the record, their absence does not hamper our review.

As a result of Judge Searer’s order, General Credit is left with no collateral securing the $60,000.00 it extended to Cleck. On appeal, General Credit claims the mortgage is a valid lien against deck’s one-half interest in the McVeytown Property. Moreover, claims General Credit, the declaration of the mortgage as null and void acts as an unjust enrichment to Cleck and Lauver. General Credit requests a reversal and a remand for a determination of the following factual and legal issues presented for our review:

1. Whether the trial judge erred in failing to find as a fact that Lauver and Cleck acquired the McVeytown Property as joint tenants with right of survivorship and not as tenants in common?
2. Whether the trial judge erred in failing to find as a fact that Lauver knew that Cleck had pledged the McVeytown Property as collateral for the $60,000.00 loan from General Credit?
3. Whether the trial judge erred in failing to find as a matter of law that the mortgage was a valid lien against the McVeytown Property at the time the mortgage was recorded?
4. Whether the trial judge erred in failing to find as a matter of law that one tenant may pledge real property as security for a loan without the other tenant’s consent?
5. Whether the trial judge erred in failing to find as a matter of law that a joint tenant who pledges real property as security for a loan, by the Joint Tenant’s Act, severs the joint tenancy creating a tenancy in common?
6. Whether the trial judge erred in failing to find as a matter of law that Lauver is barred by the doctrine of laches from contesting the validity of the mortgage lien having first contested the validity of the mortgage nearly a year and a half after the recording of the mortgage against the McVeytown Property?
7. Whether the trial judge erred in failing to find as a fact and a matter of law that Lauver consented, by his silence, to the pledging of the McVeytown Property as collateral for the loan from General Credit?

Appellant’s brief at pp. 3-9. We will address the issues above in seriatim. Initially, we dispose of issue one as meritless because neither party questioned that Cleck and Lauver took the McVeytown Property by deed as joint tenants with right of survivorship. Because this was not a disputed fact, a finding by the trial court was not necessary.

Issue number two concerns whether Lauver, the non-mortgagor joint tenant, knew about the mortgage Cleck entered into with General Credit. We find no merit to this challenge. There exists ample evidence in the record to support the trial court’s finding that Lauver was not aware of the September 1989 mortgage Cleck alone executed with General Credit. The testimony of both Cleck and Mr. Sunday, a business partner and employee of deck’s, clearly suggests that Lauver had no knowledge of the mortgage in question. Transcript of September 24, 1991, at pp. 20, 24-25, 45-46. The trial court, as fact finder, may choose to believe part or all of the testimony presented. We find no abuse of its discretion in believing the fact pattern suggesting Lauver was without knowledge of the mortgage.

Issue number three presents dual questions for our consideration: 1) Does a mortgage executed by one joint tenant on property held in joint tenancy with right of survivorship sever the joint tenancy? and 2) To what interest does a mortgage executed by one joint tenant on his undivided one-half interest in property held in joint tenancy with right of survivorship attach, only the undivided one-half interest or the whole?

Lauver argues that deck’s mortgage to General Credit severed the joint tenancy and created a tenancy in common. Consequently, because Cleck acted without Lauver’s knowledge or consent, the mortgage lien is null and void as to Lauver’s interest. General Credit agrees that the mortgage severed the joint tenancy and created a tenancy in common. However, General Credit contends that the mortgage was, nonetheless, a valid lien against deck’s interest, which lien deck and Lauver sought to avoid by fraudulently conveying the property to McVeytown Limited Partnership.

According to the record, Cleck and Lauver were clearly joint tenants with right of survivorship before the mortgage; therefore, the law of joint tenancy governs our decision, not the law of tenancy in common or tenancy by the entireties.

The essence of a joint tenancy created in this Commonwealth is the four unities: interest, title, time and possession. Allison v. Powell, 333 Pa.Super. 48, 481 A.2d 1215 (1984). Furthermore, specific intent of survivorship is required to create a joint tenancy, otherwise the interest is presumed to be a tenancy in common. Margarite v. Ewald, 252 Pa.Super. 244, 381 A.2d 480 (1977). These requirements were satisfied as evidenced by the deed into Cleck and Lauver, dated February 6, 1989. Complaint at 109-91, Exhibit A (Deed at Book 0346 Page 0390).

Each joint tenant holds an undivided share of the whole estate. American Oil Co. v. Falconer, 136 Pa.Super. 598, 8 A.2d 418 (1939). The survivorship characteristic of a joint tenancy precludes a joint tenant from disposing of his interest by will. Hoffert v. Bastian, 54 Pa. D. & C. 146 (1945). During his lifetime, however, a joint tenant may convey his interest to a third party, or he may have the joint tenancy property partitioned, or his interest may be seized and sold by his creditors in execution. Ladner, Conveyancing in Pennsylvania, § 1.06 at p. 11-12 (Bisel, 4th ed. 1979).

A joint tenancy is severed when one or more of the four unities is destroyed. Riccelli v. Forcinito, 407 Pa.Super. 629, 595 A.2d 1322 (1991). A joint tenancy in realty with right of survivorship is severable by the act, voluntary or involuntary, of either of the parties. Sheridan v. Lucey, 395 Pa. 306, 149 A.2d 444 (1959). For example, where both joint tenants executed an agreement of sale, their joint tenancy with right of survivorship was destroyed. Yannopoulos v. Sophos, 243 Pa.Super. 454, 365 A.2d 1312 (1976). Likewise, where property is sold upon execution of a judgment against one of the joint tenants, an involuntary severance of the joint tenancy results. In re Estate of Larendon, 439 Pa. 535, 266 A.2d 763 (1970). In the context of realty, an act must be a sufficient manifestation of an intent to sever the joint tenancy that the actor is unable to retreat from the position of creating a severance of the joint tenancy. See, Allison v. Powell, 333 Pa.Super. 48, 481 A.2d 1215 (1984) (petition to partition joint tenancy, without more, is not sufficient act to sever tenancy because petitioner can withdraw before severance occurs).

With regard to mortgages effectuating a severance, we note that Pennsylvania subscribes to the lien theory of mortgages, i.e., a mortgage does not transfer title to the mortgagee; rather, it constitutes a lien on the mortgagor’s interest, thereby securing the mortgagee’s loan. In re City of Philadelphia, 360 Pa. 589, 63 A.2d 42 (1949). In essence, a mortgage is a conveyance that acts only as security for the debt incurred. Ladner, Conveyancing, § 12.08 at p. 12. Depending on how many joint tenants execute a mortgage, two positions have developed in the law of this Commonwealth regarding severance. First, the Pennsylvania Supreme Court has held that the action of both joint tenants in executing a mortgage for the purchase price of property jointly held did not destroy any of the four unities necessary for a joint tenancy with right of survivorship; consequently, the joint tenancy was not severed. Estate of Kotz, 486 Pa. 444, 406 A.2d 524 (1979). Second, where fewer than all of the joint tenants executed a mortgage on the joint tenancy property, the mortgage did effectuate a severance of the joint tenancy. Simpson v. Ammons, 1 Binn. 175 (Pa.1806).

This case involves a fact pattern similar to the Simpson case, a mortgage by one of two joint tenants. In light of the Simpson holding, we agree with the parties that the mortgage in this case effectuated a severance of the joint tenancy held by Cleck and Lauver.

Having found that deck’s mortgage to General Credit did sever the joint tenancy, we turn now to the validity of the mortgage in relation to the respective interests of the joint-tenants-turned-tenants-in-common. On this issue, we disagree with the trial court, again following the lead of the Simpson case. The Simpson court allowed the mortgagee’s assignee to pursue satisfaction of the mortgage; this suggests to us that the mortgage was deemed to be valid. The court limited satisfaction to the interests of the two joint tenants who joined in the mortgage. The interest of the non-mortgagor joint tenant was not available as security. Applying Simpson to the facts at hand, deck’s encumbrance of his interest in the McVeytown Property did not also encumber Lauver’s interest. The practical result of our decision is that General Credit must seek satisfaction of its lien from that portion of the McVeytown property which belonged to Cleck when the mortgage was executed.

Issue four is disposed of in accordance with our holding that the mortgage created a valid lien against deck’s interest in the McVeytown Property.

Issue five is disposed of in accordance with our holding that the mortgage effectuated a severance of the joint tenancy.

Issue six has been waived. While General Credit raised the issue of laches in its motion for post-trial relief, it did not raise laches in the initial pleadings or during the trial phase. “[A] matter not raised in the trial court will not be considered on appeal____ To preserve an issue for appellate review, an appellant must make a timely objection at the appropriate stage of the proceedings before the trial court and must specifically raise the issue in post-trial motions.” Taylor v. Celotex Corp., 393 Pa.Super. 566, 583, 574 A.2d 1084, 1093 (1990).

Issue seven is disposed of as meritless given our conclusion that the trial court did not abuse its discretion in finding that Lauver had no knowledge of the challenged mortgage. Lauver’s silence was the product of his lack of knowledge. We are hard pressed to agree that such silence amounts to actionable consent.

Order reversed. Jurisdiction relinquished.

      . Lauver relies on the cases of Caveny v. Curtis, 257 Pa. 575, 101 A. 853 (1917) and Lichtenfels v. Bridgeview Coal Co., 344 Pa.Super. 257, 496 A.2d 782 (1985), as controlling this case. We disagree because Caveny and Lichtenfels concerned property held by tenants in common, not joint tenants with right of survivorship. If Cleck and Lauver were ever tenants in common, they would have been only after the mortgage, assuming the mortgage severed the joint tenancy.

      . The Simpson court addressed two questions very similar to those presented herein: 1) Whether the mortgage by two of three joint tenants severed the joint tenancy? and 2) Would the assignees of the mortgage be entitled to collect on the debt secured by the mortgage? Counsel for the joint tenant argued that, pursuant to the lien theory, no severance occurred because no title was passed via the mortgage. The court made no reference to this argument in deciding that the mortgage by two of the three joint tenants severed the tenancy. Rather, "the court [was] of the opinion that the mortgage was a severance of the jointtenancy [sic]. The interest of Baynton and Morgan passed by it, but the interest of Wharton was not effected." Simpson, 1 Binn. at 177. As to satisfaction of the mortgage, the court held that the assignee was entitled to recover only Vi of the whole interest because Wharton’s interest did not vest in the mortgage^ by means of the mortgage.


author: DEL SOLE, Judge.

text:
    609 A.2d 558
    Bradley CONOVER, Appellant, v. Stephen J. MIKOSKY Prothonotary; Donetta W. Abrose, Judge; Charles Loughran, Judge, Court of Common Pleas, Tenth Judicial District of Pennsylvania; Israel and Wood, P.C. Attorneys at Law; Donald Minahan, Dennis Kistler, Gloria Tischuk, Deputy Attorneys General for the State of Pennsylvania; Ila Jeanne Sensenich, Chief, United States Magistrate-Judge; and William Standish, United States District Judge, United States District Court for the Western District of Pennsylvania, Appellees.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1992.
    Filed June 5, 1992.

      Bradley Conover, pro se.
    Zygmont A. Pines, Philadelphia, for Court of Common Pleas, Tenth Judicial Dist. of Pennsylvania, appellee.
    James F. Israel, Pittsburgh, for Israel and Wood, appellee.
    Ernest D. Preate, Jr., Atty. Gen., Harrisburg, for Deputy Attys. Gen. for the State of Pa., appellees.
    Thomas W. Corbett, Sr., Glenshaw, for U.S. Dist. Court for the Western Dist. of Pa., appellee.
    Before DEL SOLE, TAMILIA and HESTER, JJ.
   DEL SOLE, Judge.

This is an appeal from an order denying Appellant permission to proceed in forma pauperis. We affirm the trial court’s decision.

Appellant claims that he was awarded a certain sum of money in a settlement and that the named defendants have conspired to deprive him of the proceeds from that settlement. The trial court examined Appellant’s complaint and his Motion for a temporary restraining order or preliminary injunction and concluded that the claims set forth in Appellant’s complaint were frivolous. Accordingly, the trial court ordered that Appellant should not be permitted to proceed in forma pauperis. Following the trial court’s decision, Appellant filed this timely appeal wherein he alleges that the trial court erred in failing to grant the petition.

First, it is imperative that we discuss the appealability of the order from which Appellant is appealing. In its order dated September 9,1991, the trial court denied Appellant’s petition to proceed in forma pauperis based upon the trial court’s belief that “the underlying complaint [was] frivolous.” The judge did not specifically state in the order or in his opinion that Appellant’s complaint was dismissed. Although the trial court never expressly dismissed Appellant’s complaint, we can infer that the denial of Appellant’s petition to proceed in forma pauperis effectively dismissed Appellant’s complaint and prevented him from proceeding further.

It has long been recognized that in ascertaining whether an order is final, we must look beyond the technical effect of the adjudication to its practical ramifications. Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975) ... "... [c]ertain orders which have not put a litigant literally out of court or completely terminated the litigation have nevertheless been held to possess sufficient aspects of finality to be appealable immediately because the effect of the order has been to preclude the litigant from asserting the cause of action alleged.” [Praisner v. Stocker,] 313 Pa.Super. 332, 459 A.2d [1255] at 1258-1259 [(1983)].

Trackers Raceway, Inc. v. Comstock Agency, Inc., et al., 400 Pa.Super. 432, 437, 583 A.2d 1193, 1195 (1990), (en banc). In the present case, since the practical effect of the trial court’s denial of the petition was a dismissal of the complaint, Appellant’s appeal is properly before this court.

Appellant asserts that the trial court erred by denying him in forma pauperis status. Subsection (b) of Rule 240 of the Pennsylvania Rules of Civil Procedure provides that:

A party who is without financial resources to pay the costs of litigation is entitled to proceed in forma pauperis. Pa.R.C.P. No. 240(b).

On November 26, 1991, the Pennsylvania Supreme Court added the following subsection (j) to Pa.R.C.P. No. 240, effective as of January 1, 1992.

“(j) If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party filed a petition for leave to proceed in forma pauperis, the court prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous.
NOTE: A frivolous action or proceeding has been defined as one that lacks an arguable basis in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1990).
Pa.R.C.P. No. 240(j).

Although the current appeal was pending at the time that Rule 240(j) went into effect, Pa.R.C.P. No. 52 enables this court to apply it to the present case.

From our review of the record, it is apparent that the trial court did not address the issue of Appellant’s alleged indigence. Instead, it focused on the potential merit of the claim set forth in Appellant’s complaint and concluded that Appellant’s claim was frivolous. On that basis, alone, the trial court denied Appellant’s petition to proceed in forma pauperis. We agree with the trial court’s conclusion that Appellant’s claim is frivolous and in accordance with Rule 240(j), we dismiss Appellant’s complaint.

The Explanatory Comment following Rule 240(j), states that “[N]ew Rule 240(j)[ (i) ] would allow the court to dismiss an action in which a petition for leave to proceed in forma pauperis has been filed and either ‘the allegation of poverty is untrue’ or ‘the court is satisfied that the action, proceeding or appeal is frivolous.’ ” (emphasis added). In the present case, Appellant’s claim does not have a basis in law or in fact.

The purpose of granting in forma pauperis status to indigent litigants is to enable them to access the court system without having to pay the costs normally associated with court proceedings. As society grows more litigious and economic resources become more scarce, it is increasingly important that both litigants and courts act responsibly. An individual seeking to proceed in forma pauperis, thus requesting to have court costs paid for from funds provided to this Commonwealth by its taxpayers, has a responsibility to present a valid cause of action. To hold otherwise would violate Rule 240(j) and would display a blatant disregard for the notion of judicial economy. Courts should not allow a litigant seeking in forma pauperis status to use the court’s time and the taxpayer’s money to support a frivolous claim.

Finally, in light of the addition of subsection (j) to Rule 240, we advise trial courts that, if upon consideration of an in forma pauperis petition the trial court determines that the underlying claim in the complaint, procedure or appeal is frivolous, the trial court should dismiss that claim and expressly state so in its order.

Therefore, we dismiss Appellant’s complaint and affirm the order of the trial court.

      . Rule Pa.R.C.P. No. 52 states in pertinent part:
      Rule 52. Effective Date. Application to Pending Actions.
      (a) A rule or an amendment to a rule shall be effective upon the date specified by the Supreme Court ... (c) Unless the Supreme Court specifies otherwise, a rule or an amendment to a rule shall apply to actions pending on the effective date.


author: ROWLEY, President Judge:

text:
    609 A.2d 560
    Elbert Gary COOK, Jr., Appellant, v. Lanie S. Cook COVEY.
    Superior Court of Pennsylvania.
    Argued Jan. 16, 1992.
    Filed June 17, 1992.

      C. Barry Buckley, West Chester, for appellant.
    Daryl S. Endy, Paoli, for appellee.
    Before ROWLEY, President Judge, and OLSZEWSKI and MONTEMURO, JJ.
   ROWLEY, President Judge:

Elbert G. Cook, Jr., (Father) appeals from the order entered March 28, 1991, in the Court of Common Pleas of Chester County in this civil action. Father raises three issues for our review: (1) whether the trial court’s enforcement of a 1980 separation agreement resulted in retroactive application of the Pennsylvania divorce code, (2) whether the trial court erred in not determining that a period of non-communication between Father and Elizabeth Lane Covey (Elizabeth) resulted in estrangement sufficient to relieve Father of his duty to provide educational support, and (3) whether the trial court erred in requiring Father to compensate Mother for college expenses incurred without Father’s approval. Having thoroughly reviewed the record and considered the arguments of the parties, we now affirm.

The facts of the case are as follows: Father and Lanie S. Cook Covey (Mother) were married in Texas on September 10, 1964. Elizabeth is the couple’s only child. Father and Mother were divorced in Ohio on April 7, 1980, and Mother has remarried. The Ohio divorce decree incorporated “as though fully rewritten” a separation agreement entered into by the parties. The separation agreement contained the following clause:

9. College Expenses Husband agrees to pay college expenses of the minor child of the parties limited to tuition, room, board, books and monthly allowance at an amount that husband deems appropriate, at a college agreed upon by husband. These payments shall not cease merely because of child reaching majority.

(Reproduced Record at 11a).

Elizabeth performed extremely well in high school, and was awarded a National Merit Scholarship. She matriculated, with Father’s approval, at the University of Texas in Austin in the fall of 1988. During Elizabeth’s freshman year, Mother and Father became concerned about changes in Elizabeth’s behavior. Elizabeth’s lifestyle troubled her parents, and her academic performance declined. Accordingly, both parents visited Elizabeth in order to evaluate the situation. In addition, Father and Elizabeth discussed her behavior during her Christmas vacation. Father subsequently wrote Elizabeth a letter on January 4, 1989, memorializing the conversation and establishing specific behavioral guidelines for her to follow. In June, 1989, Father called Elizabeth regarding her poor grades for the spring semester. At that time, Elizabeth relayed her feelings of pressure and told Father to stop interfering in her life. Elizabeth also informed Father that she no longer wanted his monetary support for college, and that Mother would pay for her college expenses. Pursuant to this conversation, Father withdrew all financial support and did not communicate with Elizabeth for approximately one year. During this period, Mother and her husband paid for all of Elizabeth’s college expenses. When Father and Elizabeth reestablished communication, Father resumed making college payments.

Mother subsequently filed a petition seeking reimbursement of the money which she paid for Elizabeth’s college expenses during the year in which Father did not contribute. A hearing was held on November 30, 1990, and the trial court entered an order on March 28, 1991 directing Father to pay Mother $11,784.64. This timely appeal followed.

We note initially that this case involves the enforcement of a post-nuptial agreement. The factual determinations in such cases are within the purview of the trial court, and “absent an abuse of discretion, the Superior Court will not usurp the trial court’s fact-finding function.” Nitkiewicz v. Nitkiewicz, 369 Pa.Super. 504, 507, 535 A.2d 664, 665 (1988) (citation omitted).

In the first issue for our review, Father contends that Pennsylvania Courts cannot enforce the separation agreement incorporated in the Ohio divorce decree since the divorce occurred prior to the enactment of the 1980 divorce code and its subsequent amendments. Specifically, Father claims that enforcement of the separation agreement under 23 Pa.C.S.A. § 3105 and 23 Pa.C.S.A. § 3705 (previously 23 Pa.C.S.A. § 401.1 and 23 Pa.C.S.A. § 506) would result in retroactive application of the divorce code.

Pennsylvania courts have used the amended divorce code to enforce property settlement agreements entered into prior to the amendments, finding that such application does not retroactively alter the substantive rights of the parties, but merely provides a procedural mechanism for the enforcement of contractual rights. Jackson v. Culp, 400 Pa.Super. 519, 522, 583 A.2d 1236, 1238 (1990); DeMatteis v. DeMatteis, 399 Pa.Super. 421, 434, 582 A.2d 666, 672 (1990); see also Cohen v. Cohen, 352 Pa.Super. 453, 508 A.2d 561 (1986). In addition, the Pennsylvania Supreme Court has stated the following with regard to retroactive application of legislation:

Retroactive application of new legislation will offend the due process clause if, balancing the interest of both parties, such application would be unreasonable ... Traditionally, retrospective laws which have been deemed reasonable are those which “impair no contract and disturb no vested rights, but only vary remedies, cure defects in proceedings otherwise fair, and do not vary existing obligations contrary to their situation when entered into and prosecuted.”

Krenzelak v. Krenzelak, 503 Pa. 373, 382-83, 469 A.2d 987, 991 (1983) (citations omitted). We have applied the reasoning employed in the above-cited cases, and we find that application of the divorce code does not affect the substantive rights of the parties in violation of the due process clause. Accordingly, the trial court properly enforced the 1980 property agreement under current law.

In his second issue, Father contends that the trial court erred in not determining that Elizabeth unilaterally estranged herself from Father, thus relieving Father of his duty to provide educational support. The trial court permitted Father to assert estrangement as a defense for his failure to pay the college expenses, but found that the estrangement in the instant case was insufficient to relieve Father of his obligation under the agreement. (Trial court opinion, 3/28/91, p. 4, n. 2.) Although the trial court extended its inquiry into this issue, we are not persuaded that the issue of estrangement is pertinent to Father’s obligation under the agreement.

Pennsylvania courts have held that a parent owes a limited duly to provide his or her child with a college education if the parent has the necessary funds and the child is willing and able to pursue higher education. Sutliff v. Sutliff, 515 Pa. 393, 407, 528 A.2d 1318, 1325 (1987). If the parent asserts that the child has willfully severed the parent/child relationship, the courts have held that the resulting estrangement may relieve the parent of the obligation to provide post-minority support. Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989). However, the child must have caused the estrangement unilaterally, and the estrangement must continue in the face of the parent’s “concerted and good faith effort to establish and develop a relationship with his or her child.” Fager v. Fatta, 395 Pa.Super. 152, 156, 576 A.2d 1089, 1091 (1990).

The cases in which estrangement is relevant, however, have been those cases in which a child has asked the court to judicially impose on a parent an obligation to provide post-minority educational support in the absence of a specific agreement by the parent to do so. See Jackson v. Culp, supra; see also Sutliff v. Sutliff, supra; see also Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963) Since Father agreed, in writing, to pay Elizabeth’s college expenses, the trial court did not judicially impose an obligation on Father. Rather, the court merely enforced an obligation that Father has already assumed. The agreement specifically imposes Father’s obligation and is enforceable as written. The agreement is between Mother and Father. Elizabeth is a third-party beneficiary. As we cannot presume to know what concessions were made in the formation of the separation agreement, or what rights Mother may have relinquished in return for Father’s promise to pay college expenses, we will not look beyond the written agreement. If the parties had intended Father’s obligation to provide college support to be contingent on a continuing relationship with Elizabeth, the qualifier presumably would have been included in the agreement. Accordingly, whether Father and Elizabeth were estranged does not affect Father’s duty under the agreement with Mother.

Our Court has held that in enforcing post-nuptial agreements, the intent of the parties is to be derived from the written agreement, and if the agreement does not make a reference to the child’s emancipation, “the child’s status as [an] independent adult is not a release from the obligations of the post-nuptial agreement.” Schmucker v. Hanna, 377 Pa.Super. 301, 305, 547 A.2d 379, 381 (1988); See also Frank v. Frank, 402 Pa.Super. 458, 464, 587 A.2d 340, 343 (1991). In addition, the child, as a beneficiary of her parent’s agreement, cannot negotiate a new contract absent the consent of the parties to the original contract. Schmucker v. Hanna, supra 377 Pa.Super. at 307, 547 A.2d at 381-82. As Elizabeth was not a party to the agreement, she did not have the authority to shift her college expenses onto Mother, and Mother cannot be required to bear the responsibility for Father’s misplaced reliance on Elizabeth’s assertion.

In his final issue, Father asserts that the trial court erred in requiring him to compensate Mother, for college expenses incurred without his approval. The college expense clause states that Father is to pay college expenses “limited to tuition, room, board, books and monthly allowance at an amount that husband deems appropriate, at a college agreed upon by husband.” Father contends, therefore, that he should not be required to reimburse Mother for Elizabeth’s college expenses incurred during the period in which Father did not contribute, as he did not approve the expenses as they were incurred. Father’s argument lacks merit.

As noted by the trial court, it is not clear from the agreement whether the phrase “at an amount that husband deems appropriate” modifies all of the expenses, or just the “monthly allowance.” Once Father approved Elizabeth’s choice of college, expenses such as tuition and books were no longer within Father’s discretion. However, assuming arguendo that all expenses were subject to Father’s approval, our review of the record does not reveal any evidence that Father found Elizabeth’s expenses inappropriate. Father bases his claim on his lack of involvement in the decision making process, not on the appropriateness of the expenses incurred. Although Father did not have input into each and every expense, Father had agreed to Elizabeth’s choice of college. As Father and Elizabeth were not in contact with each other for one year, Father was not consulted about her expenses. The record shows, however, that Father did not make any effort to be involved with Elizabeth’s college life during that period. Furthermore, Father did not attempt to be involved in the decision making process, and he did not voice any objections to the expenses as they were incurred. Instead, as discussed previously, Father wrongly assumed that Mother would pay Elizabeth’s expenses. If Father had abided by the terms of his separation agreement, he should have monitored Elizabeth’s financial needs. As Father failed to meet his obligations under the separation agreement, the trial court acted well within its discretion in finding that Father’s self-imposed lack of input did not excuse him from reimbursing Mother for her contributions toward Elizabeth’s college related expenses.

Order affirmed.

      . We note that Father’s issue, as phrased and argued, does not address the applicability of § 3705 to agreements involving the payment of post-minority educational support, but only raises the issue of whether the divorce code was retroactively applied in violation of due process. Although Father attempts to challenge the application of § 3705 in the body of his brief, this issue was not preserved for our review. Accordingly, it is assumed for the purpose of this appeal that the statutory provision was correctly applied. However, we express no opinion as to whether or not § 3705 is applicable in cases involving post-minority educational support.


author: DEL SOLE, Judge:

text:
    609 A.2d 564
    HARLEYSVILLE MUTUAL INSURANCE COMPANY and Richard Mills, Appellants, v. Anthony Eric MADISON, William Tiller, Individually, and as the Administrator of the Estate of Carla Vanessa Payne a/k/a Carla Vanessa Payne Tiller, a/k/a Carla Vanessa Tiller, Deceased, Robin Payne, Jody L. Kenny, Jeff Reimers, Randal Lee Barnes, and Wind River Trucking, Inc., a Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued March 5, 1992.
    Filed June 24, 1992.

      Thomas J. Madigan, Pittsburgh, for appellants.
    Albert C. Gáudio, Monessen, for appellees.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order granting defendant’s preliminary objections and dismissing Appellant’s Complaint, ruling that was appropriate to refuse jurisdiction over Appellant’s action for declaratory judgment. The trial court based its ruling upon its finding that the declaratory judgment action sought judgment “on matters which are speculative and which may never occur.”

The underlying action was filed as a consequence of a tragic vehicular accident. The automobile involved was owned by Ricardo Mills and insured by him under a policy issued by Appellant, Harleysville Mutual Insurance Company (Harleysville). The car was being driven by Anthony Madison and traveling with him were nine passengers. Two passengers were injured and one was killed as a result of an accident which involved the automobile and a tractor trailer.

Those injured together with the estate of the deceased passenger instituted actions against Mills, Madison, and others related in some manner to the tractor trailer. The Complaints alleged that Mills negligently entrusted his vehicle to Madison and that Madison’s negligence in the operation of the car caused the accident.

Harleysville’s investigations led them to adopt the position that Madison was not granted permission to use the Mills vehicle on the day of the accident. As a result of this conclusion Harleysville filed a complaint in action for declaratory judgment seeking a determination that it did not have a duty to defend or indemnify Madison under the policy it issued to Mills which contained an exclusion from coverage for “any person using [a covered] vehicle without a reasonable belief that that person is entitled to do so.” Appellees filed preliminary objections to the complaint, which the trial court granted based upon its conclusion that the controversy was too remote for declaratory judgment jurisdiction.

The trial court premised its ruling on the conclusion that the outcome of the third party proceedings will determine whether there was a conversion or negligent entrustment of the vehicle and that the relief Harleysville seeks in the form of a declaration may not be necessary following the resolution of the ancillary proceedings. In support of its decision the trial court referenced Avrich v. General Accident Insurance Co., 367 Pa.Super. 248, 532 A.2d 882 (1987) for the proposition that a declaratory judgment action is inappropriate to determine rights in anticipation of events which might never occur, and Prudential Property and Casualty Insurance v. McDaniel, 342 Pa.Super. 557, 493 A.2d 781 (1985), for its holding that where ancillary proceedings have been used to resolve the issues, a declaratory judgment action is improper. While the trial court correctly notes the holdings of these cases, which remain valid, these cases are clearly inapplicable to the factual situation presented in this case.

In Avrich parties injured in an automobile accident with another vehicle sought to have resolved a question of whether the insurer of the second car owner or the insurer of the second car driver would be obligated to pay. The court ruled that the injured parties, who were not parties to the insurance contracts at issue and who had not obtained a judgment in a personal injury action, could not demonstrate any present interest in having the insurance contracts in question construed.

The situation in Avrich clearly differs from that presented in this case where the insurance company which may ultimately be required to provide coverage is seeking a determination of its duty under its own policy provisions to one accused of negligence in a related action. Here the plaintiff is the insurance company seeking an interpretation of its policy, not a third party seeking a determination of which insurer will ultimately be responsible if plaintiff should win an award.

The case of Prudential v. McDaniel, supra, was also misapplied by the trial court to this case. Prudential concerned an attempt by an insurance company to collaterally attack an unfavorable arbitration decision. The court ruled that the plaintiffs could not obtain review of an arbitration award by means of a declaratory judgment proceeding which sought to have determined whether the arbitration award was invalid. In this case, however, there has been no prior judicial proceeding and the issues regarding the third party action in this case are dissimilar to the issues found in Prudential regarding the validity of an arbitration decision.

Harleysville’s declaratory judgment action also does not seek, as the trial court suggests, to litigate the same issues which will be addressed in the third party action; Harleysville in its complaint seeks relief in the form of a declaration that it owes no duty to defend Madison in the related action and correspondingly no duty of indemnification. In the third party action the plaintiffs make a claim of negligent operation of the vehicle against Madison and a separate claim of negligent entrustment against Mills. Harleysville does not dispute its duty to defend its insured, Mills. However, a determination of whether Harleysville should defend against the claim of negligent operation by Madison depends upon a finding of whether Madison is an insured under the Mills policy. This is separate and distinct issue from the negligence questions which will need to be resolved in the third party action.

Declaratory judgment actions have, in the past, been used to resolve issues of an insurance company’s duty to defend and indemnify. In Uguccioni v. USF & G, 408 Pa.Super. 511, 597 A.2d 149 (1991) a person was killed while operating an all-terrain vehicle on a private roadway. An action was commenced on behalf of the deceased against the owner of the vehicle. The insurance company which provided a homeowner’s policy to the owners of the vehicle refused to defend. In a declaratory judgment action the trial court held that the insurance carrier was required to defend the action brought against its insureds and indemnify them in the event they were found liable for the death of the driver. This court affirmed, finding that the vehicle was on an “insured location” at the time of the fatal accident and the provisions of the policy applied.

Most recently in Solcar v. Pa. Manufacturer’s Assoc. Ins. Co., 414 Pa.Super. 110, 606 A.2d 522 (1992), a declaratory judgment proceeding was utilized to determine whether the plaintiffs insurance policy covered damages resulting from plaintiff’s concrete work, and if so, whether the insurer was required to defend it in pending lawsuits in which the insured was an additional defendant. Therein the court referred to earlier pronouncements regarding an insurer’s duty:

[i]t is axiomatic that an insurer under a general liability policy has two duties to its insured. The first duty is to defend its insured against claims where the allegations are sufficient to bring those claims under the terms of the policy and the second duty is to pay that which it has agreed to pay in appropriate cases under the terms of the policy.

Id., 414 Pa.Superior Ct. at 110, 606 A.2d 522, citing Creed v. Allstate Ins. Co., 365 Pa.Super. 136, 529 A.2d 10, 11 (1987).

The court in Solear ultimately ruled that the allegations of the underlying action did not identify a claim which would be covered under the insurance policy. Accordingly, the trial court’s entry of summary judgment in favor of the insurer in the declaratory judgment action was affirmed.

In the instant case Madison’s relationship with Harleysville has properly been brought into question by means of a declaratory judgment action. If it is found that Madison fits the definition of an insured under the policy Harleysville had with Mills, then Harleysville will be required to defend him and ultimately be responsible for indemnification in the event the related suit should result in the plaintiff’s favor. Contrary to the trial court’s ruling, Harleysville rights and duties to its potential insured cannot await a determination of the negligence action. Harleysville has right to seek a judicial determination of its obligations to Madison, including its duty to defend him, in advance of the conclusion of the negligence action. Because the trial court misapplied the existing law to this issue, we reverse its order granting defendants’ preliminary objections and dismissing Harleysville’s complaint.

Order granting preliminary objections and dismissing Complaint in declaratory judgment action is reversed. Case remanded for further proceedings not inconsistent with this opinion. Jurisdiction relinquished.

FORD ELLIOTT, J., notes her dissent.