author: POPOVICH, Judge: OLSZEWSKI, Judge,

text:
    663 A.2d 762
    METALIZED CERAMICS FOR ELECTRONICS, INC., Appellant, v. NATIONAL AMMONIA COMPANY, Appellee. METALIZED CERAMICS FOR ELECTRONICS, INC., Appellee, v. NATIONAL AMMONIA COMPANY, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued May 18, 1995.
    Filed Aug. 16, 1995.

      Bruno A. Muscatello, Butler, for Metalized Ceramics.
    Philip M.P. Buttenfield, Pittsburgh, for National Ammonia Co.
    Before POPOVICH, HUDOCK and OLSZEWSKI, JJ.
   POPOVICH, Judge:

This is an appeal from the order of October 19, 1994, entered in the Court of Common Pleas of Butler County dismissing all claims by Metalized Ceramics For Electronics, Inc. (“Appellant”) against National Ammonia Company (“Appellee”) with prejudice. In this matter, we are asked to determine whether a provision of a contract entered into by the parties is unconscionable. We affirm.

The record reveals that appellant is a manufacturer of electronic components, and appellee is a supplier of anhydrous ammonia. Appellee does not manufacture anhydrous ammonia, but rather purchases the chemical from other suppliers and re-sells it to its own customers. RR. 55, 66-67, 292-93.

Appellant used anhydrous ammonia to achieve a particular atmospheric condition for its manufacturing furnace. In 1971, the parties entered into a requirements contract whereby all of appellant’s purchases of anhydrous ammonia would be made from appellee. The agreement provided that the anhydrous ammonia was “to be metallurgical grade, testing not less than 99.999% NH3 minimum purity.” RR. 132. The contract also contained the following language which is the focus of dispute herein:

“Quality to be subject to the Buyer’s test before delivery to Buyer’s tank; acceptance of delivery shall constitute a waiver by Buyer of all claims of defects from any cause whatsoever.”

RR. 132. That language also appeared in receipts given to customers for each delivery made by appellee. RR. 281-82.

From 1971 to October of 1985, appellant purchased all of its anhydrous ammonia from appellee. The deliveries occurred at an approximate rate of once or twice a month during that period. Appellant never tested any delivery of anhydrous ammonia which it received from appellee. RR. 168.

In 1986, the parties’ contractual relationship severed when appellant allegedly discovered that appellee had failed to supply metallurgical grade ammonia. In 1988, appellant brought suit against appellee and sought recovery for damages to its products and manufacturing equipment and for loss of income from accounts cancelled.

Thereafter, appellee moved for summary judgment. Appellee maintained that appellant’s cause of action was barred by the statute of limitations. On February 5, 1991, the lower court entered an order granting partial summary judgment. The court below ruled that appellant’s suit was limited to damages occurring within four (4) years preceding the filing of the complaint. On July 16, 1991, the lower court entered an order denying a supplemental motion for summary judgment filed by appellee. The court below determined that genuine issues of material fact existed as to whether any of the deliveries of ammonia were defective. Trial then commenced in October of 1993. However, the case ended in a mistrial.

Following a pre-trial conference on March 29, 1994, the lower court ordered that an evidentiary hearing be held to resolve an issue raised by appellant in an amended reply to new matter of whether the aforementioned language of the contract was unconscionable. The evidentiary hearing was held on July 15, 1994, and on September 14, 1994, the lower court entered an order and a memorandum opinion holding that the language in question was not unconscionable.

On October 19,1994, the court below entered an order and a memorandum opinion granting appellee’s motion for final order and dismissing all claims against appellee with prejudice. This timely appeal ensued.

The determination of whether a contract or clause is unconscionable is a question of law for the court. Bishop v. Washington, 331 Pa.Super. 387, 399, 480 A.2d 1088, 1094 (1984). Because the lower court held that the provision at issue was not unconscionable and dismissed this action with prejudice, our standard of review is as though a motion for summary judgment was granted.

The standard of review in assessing the grant of a motion for summary judgment requires a court to view the record (including the pleadings and depositions, if any, answers to interrogatories, admissions on file and supporting affidavits) in a light most favorable to the non-moving party. See McDonald v. Marriott Corp., 388 Pa.Super. 121, 564 A.2d 1296 (1989). Judgment shall be entered if the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b).

Zearfoss v. Frattaroli, 435 Pa.Super. 565, 567, 646 A.2d 1238, 1239 (1994).

Herein, appellant contends that the lower court committed an error of law in finding that the provision at issue was not unconscionable. To buttress its assertion, appellant maintains that it was not commercially feasible to test anhydrous ammonia at its place of business. Moreover, appellant argues that the provision in question improperly excluded remedies and was not written conspicuously.

In analyzing whether the contract’s language is unconscionable, we direct our attention to Comment 1 to § 2302 of the Uniform Commercial Code (“U.C.C.”). That comment provides in pertinent part as follows:

This section is intended to allow the court to pass directly on the unconscionability of the contract or particular clause therein and to make a conclusion of law as to its unconscionability. The basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. Subsection (2) makes it clear that it is proper for the court to hear evidence upon these questions. The principle is one of prevention of oppression and unfair surprise ... and not of disturbance of allocation of risks because of superior bargaining power.

13 Pa.C.S.A. § 2302, Comment 1 (emphasis added).

“[W]e recognize the rule that a contract or a clause in a contract is to be considered unconscionable if there is ‘an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other.’ ” Beckman v. Vassall-Dillworth Lincoln- Mercury Inc., 321 Pa.Super. 428, 437, 468 A.2d 784, 788-89 (1983), citing Witmer v. Exxon Corp., 495 Pa. 540, 551, 434 A.2d 1222, 1228 (1981); Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C.Cir.1965).

Appellant maintains that it had no meaningful choice because the testing available to it was inaccurate and unsafe. Appellant argues, “[a]ny testing from a tanker truck would cause every shipment to be rejected because of the inability to perform the test without drawing water into the test sample.” Appellant’s Brief at 16. Further, appellant asserts that an environmental response team must be available during the testing of ammonia and that a spill could result in an evacuation of an area of two (2) miles.

At the evidentiary hearing on July 15, 1994, Mark Tanner, who is Vice President of Tanner Industries of which National Ammonia is a division, testified about a procedure for evaluating the chemical’s purity that was available to customers since 1971 and was simple, accurate and safe. RR. 282-85, 289-90, 295-96, 305-07. The court below found that evidence credible and rejected appellant’s contention that it had no meaningful choice. Trial Opinion at 7. Upon examination, we find that the lower court’s determination of credibility is supported by the record and, thus, we decline to disturb its finding. See Thatcher’s Drug Store of West Goshen, Inc. v. Consolidated Supermarkets, Inc., 535 Pa. 469, 477, 636 A.2d 156, 160 (1994) (absent an abuse of discretion, supreme court is bound by hearing court’s assessment of credibility of witnesses); Kembel v. Sehlegel, 329 Pa.Super. 159, 165, 478 A.2d 11, 14 (1984) (superior court must accept the findings of the lower court with respect to the credibility of witnesses).

Appellant also maintains that the provision at issue is unconscionable since it is not conspicuous and excludes all remedies. The court below determined that the language in question was conspicuous. Trial Opinion 9/14/94 at 7. The U.C.C. defines “conspicuous” as follows:

A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it.
A printed heading in capitals (as: NONNEGOTIABLE BILL OF LADING) is conspicuous.
Language in the body of a form is conspicuous if it is in larger or other contrasting type or color. But in a telegram any stated term is conspicuous.
Whether a term or clause is conspicuous or not is for decision by the court.

13 Pa.C.S.A. § 1201.

Here, the provision is neither of larger print nor of different shade than the remaining language of the contract which is two pages in length. In no way is the language in question highlighted or emphasized. Moreover, the language at issue is not set apart by its own paragraph, but rather is located within a lengthy paragraph which addresses other matters. RR. 181-82. The provision fails to stand out in contrast to the remaining language of the contract. Compare Keblish v. Thomas Equipment, Ltd., 427 Pa.Super. 93, 628 A.2d 840 (1993) (disclaimer was not conspicuous where language was imbedded within body of contract and was the same size and color as the remainder of the contract language). Consequently, we conclude that the lower court erred in finding that the language in question was written conspicuously.

Although the provision is not conspicuous, we, nevertheless, reject appellant’s argument that it is unconscionable. We find that the nature of the provision in question coupled with the circumstances surrounding the commercial relationship compels us to rule in favor of appellee.

As to the nature of the provision in question, we construe its language not as an exclusion of remedies and warranties, but rather as a limitation or a condition precedent to recovery. The enforceability of a limitation of remedy is governed by § 2719 of the U.C.C. That section provides as follows:

§ 2719. Contractual modification or limitation of remedy
(a) General rule. — Subject to the provisions of subsections
(b) and (c) and of section 2718 (relating to liquidation or limitation of damages; deposits):
(1) The agreement may provide for remedies in addition to or in substitution for those provided in this division and may limit or alter the measure of damages recoverable under this division, as by limiting the remedies of the buyer to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts.
(2) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.
(b) Exclusive remedy failing in purpose. — Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title.
(c) Limitation of consequential damages. — Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

18 Pa.C.S.A. § 2719. “Section 2719(c) cannot be used to relieve an experienced merchant of the misfortunes of his or her own poor business practices.” Jim Dan, Inc., supra at 1199.

The language in question clearly and expressly provides that remedies are unavailable to appellant only in the event that it fails to inspect the ammonia. The provision does not affect remedies available to appellant where appellant tests the ammonia and finds it defective. Thus, the provision does not in and of itself bar appellant from recovering damages.

The essential purpose of the provision is to insure that impure ammonia could be identified before it was delivered into appellant’s storage tank. As correctly noted by appellee, “Had [appellant] been able to identify the non-conforming delivery and reject it, under the contract [appellee] would necessarily have had to replace it, since [appellee] agreed in the contract to supply all of [appellant’s] requirements for ammonia.” Appellee’s Brief at 31. We find that the clause in question has not failed of its essential purpose. Compare Jim Dan, Inc., supra at 1199-1200 (limitation clause did not fail of its essential purpose where it merely allocated risks among the parties).

In regard to the commercial setting, the record is devoid of facts which suggest that the parties had unequal bargaining power. In Vasilis v. Bell of Pennsylvania, 409 Pa.Super. 396, 400, 598 A.2d 52, 54 (1991), our court observed:

Courts have upheld limitation of damage provisions in sales contracts between merchants or experienced business concerns because there is no disparity between such entities in either bargaining power or sophistication. See K & C, Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 263 A.2d 390 (1970) (buyers were an experienced attorney and the owner of a used furniture business who dealt with the renovation and sale of the type of machines being purchased); Chatlos Systems, Inc. v. National Cash Register Corp., 635 F.2d 1081 (3rd Cir.1980) (buyer was a manufacturer of complex electronic equipment who purchased a defective computer system).

In the case at bar, both parties were experienced business entities. As we determined above, on-site testing was available to appellant. Thus, appellant had control over the quality of ammonia it accepted from appellee. We agree with the lower court’s assessment that “both parties were, or should have been, aware of the feasibility of on-site testing of ammonia prior to signing a contract which placed such heavy significance on such testing.” Trial Opinion 9/14/94 at 6. We note that appellant does not assert that the provision at issue was a matter of dispute or subject to negotiation before the agreement was entered into by the parties. Compare Vasilis, supra (provision in question was not a matter of concern before parties entered into contract). Additionally, appellant does not allege fraud or incompetence to excuse itself from the terms of the contract. Compare Jim Dan Inc., supra at 1200 (merchant had duty to read contract before signing it). Upon signing the contract in 1971, appellant failed to undertake any testing of the ammonia from 1971 to 1985, even though it was apprised by each delivery receipt of its duty to conduct its own inspection.

From our examination of the record, we conclude that the lower court properly determined that the provision in question was not unconscionable. Hence, we affirm its order dismissing all claims against appellee with prejudice.

Order affirmed.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring.

We concur in the result reached by the majority, but write separately in order to clarify a distinction in the law of unconscionability which the arguments of appellant Metalized Ceramics for Electronics (MCE) have obscured.

While the quasi-equitable doctrine of unconscionability defies precise definition, courts and commentators have recognized that it comprises two distinct aspects: one procedural, and the other substantive. See generally James J. White & Robert S. Summers, Uniform Commercial Code §§ 4-1 to 4-9 (3d ed. 1988). Procedural unconscionability, which our Supreme Court has described as “an absence of meaningful choice on the part of one of the parties,” relates to the process by which the parties enter into the challenged contract. Witmer v. Exxon Corp., 495 Pa. 540, 551, 434 A.2d 1222, 1228 (1981); Denlinger, Inc. v. Dendler, 415 Pa.Super. 164, 177, 608 A.2d 1061, 1068 (1992). Substantive unconscionability, on the other hand, relates to the result of that process; i.e., the court reviews the terms of the contract to determine whether they are “unreasonably unfavorable to the other party.” Witmer, 495 Pa. at 551, 434 A.2d at 1228. Both aspects should be present for a contract to be deemed unconscionable. See id. (“Unconscionability has generally been recognized to include [a procedural element] together with [a substantive element].” (citation omitted, emphasis supplied)); Denlinger, 415 Pa.Super. at 177, 608 A.2d at 1068 (noting that the test for unconscionability is two-fold).

MCE contends that its contract with appellee National Ammonia Company (National) was unconscionable because of a clause which provided that MCE waived all claims of defects by accepting delivery. In support of this claim, MCE presents three separate arguments: 1) the clause at issue was inconspicuous, 2) the clause unfairly destroyed its remedies in case of breach, and 3) MCE’s inability to inspect the shipments before acceptance left it with no meaningful choice.

Applying the distinction outlined above, we find that the first of these arguments presents a claim of procedural unconscionability. MCE essentially asserts that regardless of the actual terms of the clause, it did not meaningfully choose to agree to them because the clause was inconspicuous.

Similarly, we note that MCE’s second argument is addressed squarely to the terms of the clause at issue, and thus presents a claim of substantive unconscionability. MCE in essence contends that because it unfairly limited MCE’s remedies in case of breach, this clause was unreasonably favorable to National.

As to the last of the three arguments, we find that MCE here confuses the procedural and substantive aspects of unconscionability. MCE argues that because it could not possibly comply with the contractual terms, the contract left it without a meaningful choice. The relevant inquiry with regard to the “absence of meaningful choice,” however, is not whether the agreed-upon terms could be performed, but rather whether “the party signing the contract [ ] lacked a meaningful choice in accepting the challenged provision.” Denlinger, supra. Thus, we find that the facts which MCE argues do not mesh with the law that it cites in support.

The majority has read MCE’s argument on its facts, i.e., as an attack on the terms of this clause. We continue that analysis by noting that even if it were interpreted in accordance with the case law cited instead (i.e., as a claim of procedural unconscionability), this argument would still fail. Our review of the record reveals that it supports the trial court’s finding that both parties had commercial alternatives available to them. Opinion (Sept. 14, 1994) at 6-7.

MCE’s manufacturing processes involve the bonding of metal layers to ceramic substrates, which must be conducted in atmospheres of pure nitrogen and hydrogen. Originally MCE had purchased these two gases separately; at some point, however, the company made a business decision to buy anhydrous ammonia instead. As nitrogen and hydrogen are the only elements present in this form of ammonia, MCE hoped to fulfill its requirements for those gases more economically by buying the ammonia and breaking it down into nitrogen and hydrogen. N.T. (July 15,1994) at 7-9,16. MCE conceded at the hearing below that it knew of other companies that could have supplied it with anhydrous ammonia. Id. at 17. Moreover, even if National had been the only source of anhydrous ammonia, MCE also conceded that it still had the option of continuing to purchase nitrogen and hydrogen separately. Id. at 25-26. Therefore, the record would not support a claim that MCE had no meaningful choice but to enter into this contract and accept its provisions.

      . Appellee has also timely filed cross appeals from the orders entered by the lower court on February 5, 1991, and July 16, 1991. Because we affirm the order of October 19, 1994, which dismissed all claims against appellee with prejudice, we need not address appellee’s arguments that the lower court erred in disposing of the motions for summary judgment filed by appellee. Accordingly, we dismiss appellee’s cross appeals.

      . Section 2302 of the U.C.C. reads as follows:
      § 2302. Unconscionable contract or clause
      (a) Finding and authority of court. — If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may:
      (1) refuse to enforce the contract;
      (2) enforce the remainder of the contract without the unconscionable clause; or
      (3) so limit the application of any unconscionable clause as to avoid any unconscionable result.
      (b) Evidence by parties. — When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.
      13 Pa.C.S.A. § 2302.

      . Comment 10 to § 1201 of the U.C.C. provides, “[t]his is intended to indicate some of the methods of making a term attention-calling. But the test is whether attention can reasonably be expected to be called to it.” 13 Pa.C.S.A. § 1201, Comment 10.

      . Our research of Pennsylvania law reveals that courts have enforced contractual provisions even where the language at issue was not written conspicuously. See K & C, Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 263 A.2d 390 (1970) (provision was not unconscionable where loss was commercial in nature, parties were experienced and possessed equal bargaining power); Jim Dan, Inc. v. O.M. Scott & Sons Co., 785 F.Supp. 1196, 1198 n. 1 (W.D.Pa.1992) (although court finds that language in question was conspicuous, it notes that conspicuousness is not required for a limitation of remedies clause).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    663 A.2d 768
    Bonnie Z. HOLLAND, Appellee, v. Clarence A. HOLLAND, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued May 9, 1995.
    Filed Aug. 16, 1995.

      Robert M. Davison, Bethlehem, for appellant.
    Nancy P. Wallitsch, Allentown, for appellee.
    Before OLSZEWSKI, HUDOCK and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

Appellant Clarence Holland (husband) appeals an order of support entered in favor of Bonnie Holland (wife) and the couple’s two minor daughters. For ease of discussion, we reorder husband’s four allegations of error.

Husband disputes the ruling ordering him to pay $455 per month, in addition to his child support obligation, for expenses associated with his eldest daughter’s equestrian activities. Husband argues that such expenses have already been accounted for in the guidelines calculations; in the alternative, he complains that he is being forced to subsidize a luxury activity.

As to the factual question of whether the activities at issue were necessary to the daughter’s well-being, we note that husband chose to present no evidence on this point at trial. As the record supports the trial court’s determination that these activities were necessary, we will not disturb that determination on appeal.

In its opinion, the trial court refers to Rule 1910.16-5(1), which states in relevant part:

The support grids do not take into consideration expenditures for private school tuition, summer camp or other needs of a child which are not specifically addressed by the guidelines. If the trier of fact determines that one or more such needs are reasonable, the expense thereof shall be borne by the parties in reasonable shares.

Like the examples cited in this rule, the daughter’s equestrian activities represent a significant unusual expense that is nevertheless important to the well-being of the child. We therefore find no abuse of discretion in the court’s determination that the activities at issue constituted such “other needs,” and affirm the ruling below on this point.

Husband then argues that the court erred in judging his income to be $9,559 per month. Husband claims that wife in essence stipulated to his level of income at the start of the hearing, by failing to object when the court stated that “[w]e are ... ready, I think, to agree in terms of what the income level should be in terms of utilizing the guidelines and I think that figure is $9,100.00 net a month for Doctor Holland.” N.T. (Jan. 3, 1994) at 3. Husband cites no authority to support his interpretation of a “stipulation.” We note that his assertion is also contrary to fact, as the hearing which followed the court’s statement focused mainly on husband’s level of income. We therefore reject this meritless claim.

Husband also alleges that the court erred in failing to deduct certain expenses in calculating the amount of husband’s income that was available for support. Among these claimed expenses are depreciation, automobile costs and insurance premiums, and the premium for husband’s malpractice insurance. With regard to the depreciation expense husband claims, we find that the relevant case law clearly establishes that depreciation may be deducted from income only if it represents actual cash outlay. See, e.g., McAuliffe v. McAuliffe, 418 Pa.Super. 39, 42-46, 613 A.2d 20, 22-23 (1992); Cunningham v. Cunningham, 378 Pa.Super. 280, 281-84, 548 A.2d 611, 612-13 (1988), alloc. denied, 522 Pa. 576, 559 A.2d 37 (1989). As for the other claimed expenses, we note that husband chose to present no evidence at trial on this issue or, indeed, on any other. We find that the record supports the trial court’s assessment, and affirm on this point as well.

Husband’s next claim concerns the court’s division of the $4,633 monthly support award into separate amounts allocable to wife ($2,392) and the children ($2,041). The court used the guidelines to determine the total amount of support payable, but did not adjust the award upon allocation. Husband claims that the court’s failure to adjust the award was error, basing his argument on the following language from Rule 1910.16-5(f): “if an order is to be allocated, an adjustment shall be made to the award giving consideration to the federal income tax consequences of an allocated order as may be appropriate under the circumstances.”

Rule 1910.16 provides that a court may make an unallocated award in favor of spouse and children, or may in the alternative divide the award into amounts allocable to the spouse and to each child. While the entire amount of an unallocated award is taxable as income to the recipient spouse, the child support portion of an allocated award is taxed instead to the payor. Therefore, the tax consequences of the decision to allocate may affect both how much of an award the obligor can pay, and how much of the award is actually available to the recipients for support. See Coffey v. Coffey, 394 Pa.Super. 194, 200-04, 575 A.2d 587, 590-91 (1990); Reisinger v. Reisinger, 324 Pa.Super. 223, 224-27, 471 A.2d 544, 545-46 (1984).

Tax concerns are more likely to be significant when the parties are in higher income brackets. “Consequently, in certain situations an award only for the children will be more favorable to the obligee than an award to the spouse and children. In this situation, the trier of fact should utilize the guidelines which result in the greatest benefit to the obligee.” Pa.R.C.P„ Rule 1910.16-59(f).

Husband claims that the court erred in considering “the greatest benefit to the obligee” because the award allocated to the children ($2,041) was still less than the amount that would have remained after taxes if the total support award ($4,433) had been unallocated. As wife has no other income, husband’s calculation seems correct. Under his interpretation of Rule 1910.16-5®, however, a court could consider the benefit to the obligee only in cases where the tax burden would completely destroy what would be the spousal portion of the unallocated award. The rules clearly did not intend such a nonsensical result. Closer examination of husband’s argument reveals that it is based on a misreading of the rule, which considers “an award only for the children,” and not, as husband argues, “the award only for the children.”

One potential benefit of allocation is to increase the total income available to the family unit, and we have recognized a trend toward allocation. See Reisinger, 324 Pa.Super. at 224-27, 225 n. 1, 471 A.2d at 545-46, 546 n. 1. Allocation also permits the court to determine more easily whether modification of a support order is warranted. Pa.R.C.P., Rule 1910.16, explanatory comment — 1994. Moreover, Rulé 1910.16-59(f) clearly indicates that an adjustment upon allocation is mandatory only when “appropriate under the circumstances.” Husband fails to demonstrate that the court abused its discretion in this instance, and we will not disturb the ruling below.

Husband next claims that the court erred in the way it accounted for the fact that while the parties share custody of one of their two children equally, wife has sole custody of the other. The judge first calculated each party’s responsibility for the child in joint custody, and then calculated husband’s responsibility for the support of wife and the child in her sole custody. We find that this formula was inappropriate given wife’s lack of other income, and vacate and remand for a recalculation of the child support award.

In deriving his formula, the trial judge followed Rule 1910.16- 5(h), which addresses the calculation of support awards when custody of the minor children is divided or split. In essence, this rule instructs the court to determine each party’s obligation for the period of time during which the other exercises custody, and then to subtract the smaller obligation from the larger in order to determine the award to be assessed against the payor.

The rule expressly cautions, however, that “[t]he procedure should not necessarily be followed where one party’s income is minimal and the other party’s income is significantly greater.” The reason for this admonition, as the rule explains, is that in such a case the party with the lower income is not contributing to the other’s support of the child, a result that is “inequitable.” As the formula which the trial court applied has the forbidden result in this case, the award as calculated is erroneous and cannot stand.

On remand we instruct the court instead to apply Rule 1910.16— 5(j), which addresses support obligations when the custodial parent owes spousal support. Under this rule, the first step with regard to the child in joint custody would be to calculate a “gross” spousal support obligation. Considering this “gross” award to be income to the recipient, the next step is to calculate the amount of support due for the child while it is in the other parent’s custody. Finally, the actual spousal support obligation is derived by subtracting this child support obligation from the “gross” spousal support figure. This method properly assesses a responsibility on each parent to contribute to the care of the child while the child is in the other parent’s custody.

Order affirmed in part, vacated in part, and remanded with instructions. Jurisdiction relinquished.

      . The other $200 was allocated to arrearages.


author: HESTER, Judge.

text:
    663 A.2d 771
    COMMONWEALTH of Pennsylvania v. Damon Darnell HOLMES, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 10, 1995.
    Filed Aug. 18, 1995.

      Joseph P. Burt, Erie, for appellant.
    Anthony R. Himes, Assistant District Attorney, Erie, for Com., appellee.
    Before CIRILLO, SAYLOR and HESTER, JJ.
   HESTER, Judge.

Appellant was convicted of recklessly endangering another person and aggravated assault on November 9, 1994, following a jury trial. No post-verdict motions were filed. Appellant was sentenced on December 13, 1994, to a term of five to ten years imprisonment. This appeal followed. We affirm.

The trial court summarized the trial testimony in its opinion pursuant to Pa.R.A.P. 1925 as follows:

In the early evening hours of March 20, 1993, an individual by the name of Jeffrey Stovall, accompanied by one Susan Cooley, decided to go out for what they thought would be an innocent evening. For Mr. Stovall, however, the night would end in tragedy. Mr. Stovall and Ms. Cooley travelled to an establishment known as the Brown Derby where they apparently remained for a couple of hours. During this time, the two ate pizza and consumed a number of pitchers of beer. Upon leaving the Brown Derby, Mr. Stovall and Ms. Cooley stopped at a place called Hut’s where they stayed for only a short time, before finally arriving at a bar named Angie’s Last Stop. It was here that Mr. Stovall had the misfortune of playing pool with the Defendant. The game of choice was eight ball, and Mr. Stovall and the Defendant were playing for money with the stakes being one dollar a ball and two dollars a game. While the two played pool, Ms. Cooley sat at the bar and talked to her Mend Michael Purdue; she did not see any of the activities around the pool table.
Ultimately, it was the wagering, amidst allegations of cheating, which sparked the initial dispute. At the conclusion of the game, the Defendant claimed that Mr. Stovall owed him approximately twenty dollars. Conversely, Mr. Stovall believed that the Defendant had cheated by removing the cue ball from the pocket in an attempt to conceal the fact that he had scratched on the eight ball. The two exchanged some words, and Mr. Stovall offered to buy the Defendant a beer and call it even. The Defendant, who had become extremely agitated and angry, refused this offer. Not wanting to engage in any more discussion, Mr. Stovall took Ms. Cooley to the dance floor area where the Defendant again approached and demanded money. Hoping to avoid further confrontation, Mr. Stovall decided to leave.
As Mr. Stovall, Susan Cooley, and her Mend Michael Purdue left the bar, they were greeted outside by the Defendant who had a pool cue in hand. After exchanging some more words, Mr. Stovall began walking away from the Defendant. As he did so, he heard gunshots behind him. Wflien Mr. Stovall turned around, a bullet pierced his lower left leg causing a grade one compound fracture of his tibia. The uppermost portion of Mr. Stovall’s tibia was shattered into multiple fragments and he suffered extensive muscle loss. At trial, Mr. Stovall testified that the Defendant then walked up to him immediately after the shooting, stood over him, and momentarily pointed the gun at his head before finally departing.

Trial court opinion pursuant to Pa.R.A.P. 1925(a), 4/7/95, at 2-4.

Appellant raises the following issues for our review:

1. There was a lack of sufficient evidence for the aggravated assault verdict with respect to identity.
2. The verdict was against the weight of the evidence for the aggravated assault verdict with respect to identity.

Ora* standard for reviewing a challenge to the sufficiency of the evidence is well-established.

In reviewing a sufficiency of the evidence claim, we view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth. A mere conflict in the testimony does not render the evidence insufficient, because it is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence.

Commonwealth v. Moore, 436 Pa.Super. 495, 501, 648 A.2d 331, 333 (1994) (citations omitted).

Appellant makes no specific claim in addressing the sufficiency of the evidence other than suggesting that Susan Cooley and the victim were incredible witnesses. We have noted repeatedly that the mere assertion of error, without elaboration, will not be addressed. Commonwealth v. Adamo, 431 Pa.Super. 529, 637 A.2d 302 (1994); see also Commonwealth v. Shaw, 494 Pa. 364, 370 n. 3, 431 A.2d 897, 900 n. 3 (1981) (failure to elaborate on mere assertion in brief that admission of confession violated fifth amendment results in waiver); Commonwealth v. Badman, 398 Pa.Super. 315, 322-23 n. 2 and n. 3, 580 A.2d 1367, 1370 n. 2 and n. 3 (1990) (issue waived if argument is mere assertion); Commonwealth v. Long, 367 Pa.Super. 190, 532 A.2d 853 (1987) (we will not review issues that are not properly developed by citation to the record and reference to supporting case law); Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982) (same); Commonwealth v. Chew, 338 Pa.Super. 472, 487 A.2d 1379 (1985); Commonwealth v. Ignatavich, 333 Pa.Super. 617, 482 A.2d 1044 (1984).

Moreover, even if appellant properly had developed his argument regarding the sufficiency of the evidence, we would conclude that it has no merit. The record refutes his factual position. Appellant asserts that Cooley was intoxicated, that she saw appellant for a brief period, and that on the night of the crime, she stated that she could not identify the assailant. He also claims that Mr. Stovall was intoxicated, he saw his assailant only a short time, and he lied to the jury about playing pool for a dollar a ball as evidenced by Ms. Cooley’s prior testimony that Mr. Stovall did not have any money that night.

Our review of the testimony reveals that Ms. Cooley testified that she had been drinking beer on the evening of the crime, but she was not intoxicated. Notes of testimony (“N.T.”), 11/7/94, at 30. She identified appellant at trial as the man who shot Mr. Stovall. Id. at 32, 37. She testified that she observed appellant “face to face” for ten seconds and was certain in her identification. N.T., 11/8/94, at 53, 64-65. Similarly, the victim identified appellant at trial as the man who shot him. Id. at 91, 98. He stated that he had not told Susan Cooley anything about whether he had money on the night of the shooting. Id. at 81-82.

Thus, appellant’s claim essentially is that Ms. Cooley and Mr. Stovall gave incredible testimony. It is clear that the jury chose to believe these witnesses. “The jury was free to believe either witness’ account of the story. On appeal we may not disturb its determination as to credibility.” Commonwealth v. Owens, 437 Pa.Super. 64, 73, 649 A.2d 129, 133 (1994).

Appellant’s second argument is that the verdict is against the weight of the evidence. Appellant raises the claim regarding the weight of the evidence for the first time on appeal. He chose under Pa.R.Crim.P. 1410 not to file optional post-sentence motions but instead, filed a notice of appeal after sentencing. Therefore, the trial court was not given an opportunity to exercise its discretion in determining whether appellant should be awarded a new trial on grounds that the verdict was contrary to the weight of the evidence.

We addressed this situation recently in Commonwealth v. Hodge, 441 Pa.Super. 653, 658 A.2d 386 (1995). We stated in Hodge,

It seems clear, therefore, that this Court cannot entertain, in the first instance, a request for a new trial on grounds that the verdict was contrary to the weight of the evidence. This is not an issue of waiver. Even though, as a general rule, a defendant need not file a post-sentence motion in order to preserve issues for appellate review, a weight of the evidence argument may be addressed only by the trial court. Therefore, a defendant, who wishes to seek a new trial on grounds that the verdict was contrary to the weight of the evidence, must necessarily raise this issue via post-sentencing motion in the trial court. If the trial court denies the motion, the defendant may then file an appeal in which the trial court’s exercise of discretion will be subject to review. Because appellant did not challenge the weight of the evidence in the trial court in this case, we will not address the issue on appeal.

Id., 441 Pa.Super. at 660, 658 A.2d at 389 (emphasis added, footnote omitted). The fact that the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) in the instant case does not distinguish it from Hodge in that notwithstanding appellant’s statement pursuant to Pa.R.A.P. 1925, the trial court had no basis upon which to grant a new trial without a motion for a new trial before it. Thus, it could not exercise its discretion in granting or denying same.

Moreover, even if we were able to review the weight of the evidence, we find no basis for disturbing the verdict of the jury in this case. Our review of challenges to the weight of the evidence is governed by the following principles:

A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. The decision whether to grant a new trial on this basis rests within the discretion of the trial court. A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative so that right may be given another opportunity to prevail. The role of an appellate court in reviewing the weight of the evidence is very limited. The purpose of that review is to determine whether the trial court abused its discretion and not to substitute the reviewing Court’s judgment for that of the trial court. Accordingly, where the evidence is conflicting, the credibility of the witnesses is solely for the jury, and if its finding is supported by the record, the trial court’s denial of a motion for new trial will not be disturbed.

Commonwealth v. Horton, 434 Pa.Super. 478, 482, 644 A.2d 181, 183 (1994) (citations omitted), quoting Commonwealth v. Manchas, 430 Pa.Super. 63, 71, 633 A.2d 618, 622-23 (1993).

Appellant advances no specific argument regarding the weight of the evidence, and we conclude that there is nothing in the verdict based upon the evidence offered at trial which can be deemed so shocking to one’s sense of justice as to require the award of a new trial.

Judgment of sentence affirmed.


author: POPOVICH, Judge:

text:
    663 A.2d 775
    COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth HRITZ, Appellant.
    Superior Court of Pennsylvania.
    Argued June 15, 1995.
    Filed Aug. 18, 1995.

      Xavier Hayden, West Conshohocken, for appellant.
    Mary M. Killinger, Executive Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Montgomery County following appellant’s convictions on charges of possession with intent to deliver marijuana, possession of marijuana and possession of drug paraphernalia. Appellant contends that the lower court erred in denying his request to compel production of the confidential informant. We affirm.

The record reveals that on June 29, 1993, Detective Sherman Nowlin of the Montgomery County Narcotics Enforcement Team and other police officers executed a search warrant at appellant’s residence. Appellant was present when the warrant was executed, and the search uncovered 1.28 kilograms of marijuana, $27,500.00 in cash, a scale, a paging device and various items of illegal contraband.

On May 11, 1994, appellant filed a motion to disclose the identity of the confidential informant. In that motion, appellant alleged, in pertinent part, as follows:

3. [Appellant] avers that this informant provided false information to the police in material parts which is contained in the Affidavit of Probable Cause.
4. The aforesaid confidential informant is a white male, whose actual identity is unknown to [appellant] and whom at all times relevant repeatedly and continuously through coercive means, engaged in a course of conduct to involve [appellant] in drug activity on or about to June 29, 1993.
5. This coercive activity by the confidential informant consisted of numerous phone calls as well as other coercive efforts by the informant to involve [appellant] in illegal activity.
6. The [appellant’s] sole defense in this case is entrapment.
7. The aforesaid unidentified confidential informant at all times relevant was working under the direction and control of the Montgomery County Detectives. He is a material and critical witness who will provide material and favorable testimony for the defense in this case.

“Motion to Produce Confidential Informant” at 1-2.

On June 1, 1994, the lower court held a hearing on the aforementioned motion. At that hearing, the following exchange occurred in regard to appellant’s offer of proof to compel the identity of the confidential informant:

ASSISTANT D.A.: Since the first argument to be heard then is on the motion to produce confidential informant, I call the Court’s attention to Rule 305 relating to discovery. And it would appear that it is then [defense counsel’s] burden to prove under Rule 305 that this information is necessary. So, I don’t know he intends to do that, but that is the first step.
THE COURT: All right.
DEFENSE COUNSEL: I have no problem with that. I would just call Detective Nowlin, I guess, then.
ASSISTANT D.A.: Offer of proof.
DEFENSE COUNSEL: To establish what I intend to establish, that there is a reasonable possibility under the case law, reasonable probability, that the production of this informant is necessary to the defense of this case, both with regard to the search and seizure warrant, as well as with regard to the entrapment.
THE COURT: I will let you call him. But I don’t know ...
ASSISTANT D.A.: I don’t think we get that far, Judge. I think that there is case law clearly, even dealing with entrapment defenses, that you need an offer of proof that says why we need to do it.
DEFENSE COUNSEL: I just gave my offer of proof. My offer of proof is — I will repeat it again — is that this information was acting under the direction and control of the Montgomery County Detectives throughout this investigation relating to [appellant]; therefore, he was an agent of the Commonwealth, number one.
Number two, that this confidential informant engaged in repeated and continuous coercive conduct, contacts with [appellant], coercive influence with [appellant], had certain conversations that only he and [appellant] were privy to.
ASSISTANT D.A.: How would Detective Nowlin know anything about it?
DEFENSE COUNSEL: He has to—
ASSISTANT D.A.: It would be hearsay.
DEFENSE COUNSEL: I was going to call him to establish the fact that the informant was working under the direction and control of the Detectives. Okay.
But to finish my offer of proof, the offer of proof that I am giving is that this informant’s testimony in court and the production of this informant would be essential to the presentation of the defense in this case.
I mean, that is what my offer of proof is.
ASSISTANT D.A.: He has got to say how.
DEFENSE COUNSEL: I just said how.
ASSISTANT D.A.: There are plenty of cases that go into much more detail than [defense counsel] says and it has been rejected.
‡ jH ‡
THE COURT: After discussing this with counsel, I grant you an exception, [assistant district attorney], but I will permit him to call Detective Nowlin to come up, ... under [Commonwealth v. Herron, 475 Pa. 461, 380 A.2d 1228 (1977)].

Hearing N.T. 6/1/94 at 6-8 (counsel’s titles added for clarification purposes).

Detective Nowlin then took the stand and recounted the following events: In February of 1993, the informant telephoned the detective and told him about a drug-related conversation he had with appellant at a bar. Hearing N.T. 6/1/94 at 11-12. The informant worked under the direction and control of Detective Nowlin in other cases prior to February of 1993. Hearing N.T. 6/1/94 at 11. From February, 1993, to June 1993, the informant had numerous contacts with appellant. Hearing N.T. 6/1/94 at 17-24. During those contacts, law enforcement personnel were not present, and the conversations were not recorded by a body wire or any type of electronic device. Hearing N.T. 6/1/94 at 12-13,15,16,17,18-19, 20. The informant was paid for his services by Detective Nowlin and stood to make more money with more contacts. Hearing N.T. 6/1/94 at 20-21.

On June 10, 1994, the court below entered an order which denied appellant’s motion to produce the confidential informant. On June 21, 1994, the parties stipulated to a non-jury trial and agreed to incorporate the notes of testimony from the preliminary hearing on October 18, 1993, to establish the facts of the case. Trial N.T. 6/21/94 at 2. The trial court found appellant guilty and sentenced him to a term of imprisonment of one (1) to two (2) years on the charge of possession with intent to deliver marijuana.

On June 30, 1994, appellant filed a motion for judgment of acquittal. Appellant contended that the lower court erred in denying his request to produce the confidential informant on the ground that it improperly analyzed the entrapment question by applying the subjective test, i.e., indicia of defendant’s predisposition to commit the crime. On August 15, 1994, the court below heard oral arguments on appellant’s post-sentence motion. On October 26,1994, the lower court, sitting en banc, heard rearguments and on November 22, 1994, entered an opinion and an order that denied the motion for judgment of acquittal. On December 21, 1994, appellant filed a notice of appeal.

The trial court has the discretion to order disclosure of an informant’s identity. Commonwealth v. Washington, 438 Pa.Super. 131, 140, 651 A.2d 1127, 1132 (1994), citing Commonwealth v. Bonasorte, 337 Pa.Super. 332, 355, 486 A.2d 1361, 1374 (1984) (en banc). See Commonwealth v. Jennings, 428 Pa.Super. 297, 304, 630 A.2d 1257, 1261 (1993) (disclosure of a confidential informant is a discovery matter wherein the trial court is given discretion under Pa.R.Crim.P. 305B(2), 42 Pa.C.S.A.). “Where the confidential informant is not a witness to the incident at issue, the defendant must show that the Commonwealth’s disclosure of the identity of the informant is ‘(1) material to his defense; (2) reasonable; and (3) in the interests of justice.’ ” Commonwealth v. Ross, 424 Pa.Super. 570, 574, 623 A.2d 827, 829 (1993), quoting Commonwealth v. Redmond, 395 Pa.Super. 286, 300, 577 A.2d 547, 553 (1990), appeal dismissed, 528 Pa. 601, 600 A.2d 190 (1992); Common wealth v. Bonasorte, supra. See Pa.R.Crim.P. 305B(2)(d), 42 Pa.C.S.A.

It is important to note that the Rule [Pa.R.Crim.P. 305B(2)(d)] speaks in terms of a showing by the defendant. These conditions cannot be assumed, and they must be supported by evidence on the record. It is in this context that the evidence presented at the hearing must be examined to determine whether the defendant met his burden.

Commonwealth v. Novasak, 414 Pa.Super. 21, 32, 606 A.2d 477, 483 (1992), alloc. denied, 532 Pa. 662, 616 A.2d 984 (1992), quoting Commonwealth v. Iannaccio, 505 Pa. 414, 424, 480 A.2d 966, 971 (1984), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985) (Zappala, J., opinion in support of affirmance) (emphasis in original).

Herein, appellant raises two points of error in the lower court’s assessment of whether his offer of proof was sufficient to require the disclosure of the informant. First, appellant asserts that the court below improperly examined his offer of proof under the subjective standard, i.e., defendant’s predisposition to commit the crime, rather than under the objective standard, i.e., conduct of the police. Second, appellant argues that his offer of proof was sufficient under application of the latter standard.

In its evaluation of appellant’s discovery request, the lower court directed its attention to the analysis espoused by our supreme court in Commonwealth v. Herron, 475 Pa. 461, 380 A.2d 1228 (1977). In Herron, the defendant was charged with selling marijuana to an undercover police officer. An informant introduced the undercover police officer to the defendant. The informant was not present when the defendant and the police officer made arrangements for the drug transaction. Id. at 461-65, 380 A.2d at 1228-29. In support of his entrapment defense, the defendant sought the identity of the informant. Defense counsel made the following offer of proof:

“I believe [informant] might offer evidence that the entire plan and format as to how this entire purchase was to be set up was made between the informant and this Police Officer in advance; that the conversations between [defendant] and [informant] may have been much more by predesign; that [informant] may have well been told by this Officer that he was to tell [defendant] certain things to induce the sale, that is, as to where he worked, who he was, who he knew, that sort of thing.”

Id. at 464, 380 A.2d at 1229.

There, our supreme court recognized that disclosure of an informant’s identity “calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Id., quoting Commonwealth v. Carter, 427 Pa. 53, 59, 233 A.2d 284, 287 (1967), quoting Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628-29, 1 L.Ed.2d 639 (1957). To ensure that the balancing of interests was not thwarted, our supreme court in Herron determined that a defendant shouldered the following burden:

[B]efore disclosure of an informer’s identity is required in the face of the Commonwealth’s assertion of privilege, more is necessary than a mere assertion by the defendant that such disclosure might be helpful in establishing a particular defense. To hold otherwise would be to disregard the Roviaro balancing test announced and applied in those decisions. See also Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). Although the defendant plainly cannot be expected to show that such information will actually be helpful to his defense, the record should at least suggest a reasonable possibility that the information might be helpful, so that it would be unfair to withhold it. Herron, 475 Pa. at 466-67, 380 A.2d at 1230 (footnote omitted).
“This means that where the defendant asserts the possibility of entrapment, he should present, in support of his contention that the informant may exculpate him, facts relating directly to the two elements of the entrapment defense, i.e., ‘(1) a defendant not disposed to commit the crime, and also (2) conduct likely to entrap the innocently disposed.’” Id. at 468, 380 A.2d at 1231 (emphasis in original) (citations omitted), quoting Commonwealth v. Pritchett, 225 Pa.Super. 401, 407-8, 312 A.2d 434, 438 (1973).

Our supreme court found that the proof offered by the defendant, in support of his request to disclose the identity of the informant, was speculative and completely lacking in specificity. Herron, 475 Pa. at 467-69, 380 A.2d at 1231. Our highest court then held, “[sjince there was no basis in either the evidence or the offer for such a conclusion, we cannot conclude that the trial judge erred in determining that disclosure would be neither relevant nor helpful and that it was thus not unfair to withhold it.” Id. at 469, 380 A.2d at 1232.

In the case at bar, the lower court determined that the Herron decision was instructive as to the offer of proof a defendant must establish to disclose an informant’s identity. However, the court below found that a defendant need not provide facts to demonstrate that he was not disposed to commit the crime, and specifically rejected this as a requirement. Trial Opinion 11/22/94 at 8.

Our research reveals that Pennsylvania appellate courts have not expressly held that the offer of proof for disclosure of an informer’s identity is limited to the application of the objective test, i.e., circumstances of police conduct, where the defendant asserts an entrapment defense. We observe that our supreme court in Herron required application of the subjective test, in addition to the objective test, because the crime in that case occurred before the effective date of 18 Pa.C.S.A. § 313. See id. at 468, 380 A.2d at 1231 n. 2. Under that statute, the subjective test is not considered in the analysis of entrapment. In light of our supreme court’s decision in Commonwealth v. Weiskerger/Clapps, 520 Pa. 305, 554 A.2d 10 (1989), our courts have fervently embraced the objective standard to analyze entrapment questions. See Commonwealth v. Lucci, 443 Pa.Super. 1, 662 A.2d 1 (1995). Because the subjective standard has been discounted by our courts, we conclude that the offer of proof for disclosure of an informer’s identity must be examined solely by applying the objective standard where the defendant raises an entrapment defense.

From our view of the trial court’s opinion, we conclude that the court confined its assessment of the offer of proof under the objective standard. Thus, we find without merit appellant’s contention that the lower court improperly employed the subjective standard in its analysis.

Our inquiry now focuses upon the question of whether the proof offered by appellant was sufficient under the objective test to compel disclosure of the informant’s identity. Does “the record ... at least suggest a reasonable possibility that the information might be helpful, so that it would be unfair to withhold it.”? Herron, 475 Pa. at 467, 380 A.2d at 1230. Appellant “should present, in support of his contention that the informant may exculpate him, facts relating directly to ... conduct likely to entrap the innocently disposed.” Id. at 468, 380 A.2d at 1231.

“In exercising its discretion, the trial court should Veigh the proof offered by the defendant against the government’s privilege to withhold the identity of the informant.’ ” Commonwealth v. Washington, 438 Pa.Super. at 141, 651 A.2d at 1132, quoting Commonwealth v. Bonasorte, 337 Pa.Super. at 355, 486 A.2d at 1374. See Commonwealth v. Eicher, 413 Pa.Super. 235, 257-58, 605 A.2d 337, 348 (1992), appeal denied, 533 Pa. 598, 617 A.2d 1272 (1992) (trial court did not abuse its discretion in denying defendant’s motion to compel disclosure of the informant’s identity where defendant possessed no concrete nor specific evidence to corroborate his entrapment defense). “[T]he proper focus of our analysis must concern whether [defendant] provided the court of common pleas with enough factual data to justify granting the discovery request.” Commonwealth v. Novasak, 414 Pa.Super. at 33, 606 A.2d at 483. “Before an informant’s identity may be revealed, the defendant must lay an evidentiary basis or foundation that the confidential informant possesses relevant information that will materially aid the defendant in presenting his or her defense and that the information is not obtainable from another source.” Commonwealth v. Payne, 540 Pa. at 64, 656 A.2d at 81 (Castille, J., concurring) (emphasis in original) (citations omitted).

Herein, we find that appellant’s offer of proof in support of his discovery request lacked specificity and concreteness. Appellant maintains that the informant, who worked for the Commonwealth on a contingency basis, initiated numerous contacts with him from February, 1993 to June, 1993. During those contacts, appellant alleges that the informant coerced and pestered him into obtaining and selling marijuana. Appellant completely fails to provide any facts that describe the nature and manner by which he was influenced by the informant. Compare Commonwealth v. Ross, 424 Pa.Super. 570, 623 A.2d 827 (1993), appeal denied, 537 Pa. 639, 644 A.2d 162 (1994) (offer of proof specifically alleged that informant assured defendant that since defendant had a legal prescription for dilaudid pills, the sale of these pills was not against the law). Appellant presents merely broad and speculative allegations. Further, the testimony presented by Detective Nowlin at the hearing on June 1, 1994, does not substantiate appellant’s claim that the informant pressured him into unlawful activity. Indeed, the record is devoid of a foundation to suggest a reasonable possibility that the informant’s identity might be helpful to appellant’s entrapment defense. Hence, we hold that the lower court did not abuse its discretion in denying appellant’s motion to produce the confidential informant.

Having scrutinized appellant’s claims and finding them to be without merit, we, accordingly, affirm the judgment of sentence.

Judgment of sentence affirmed.

      . The record is not clear as to the number of contacts between the informant and appellant from February, 1993 to June, 1993. The lower court found that Detective Nowlin testified as to four (4) contacts. Trial Opinion at 3. Herein, appellant argues that there were at least ten (10) contacts between the informant and appellant during that period. Appellant’s Brief at 13. We note that appellant declined to cross-examine Detective Nowlin, Hearing N.T. 6/1/94 at 24, and thus failed to probe into this factual question.

      . At the hearing on June 1, 1994, Detective Nowlin was the only person to testify.

      . Appellant was also sentenced to one (1) year probation on the charge of possession of marijuana and one (1) to two (2) years probation on the charge of possession of drug paraphernalia. All of the sentences ran concurrently.

      . In the case at bar, appellant was charged with possession with intent to deliver marijuana, possession of marijuana and possession of drug paraphernalia. Those crimes stemmed from the search of his residence on June 29, 1993. The informant was not present during that search. Consequently, we conclude that the informant was not a witness to the incident at issue. Compare Commonwealth v. Washington, 438 Pa.Super. at 140-41, 651 A.2d at 1132 (informant was not an eyewitness to the events for which defendant was being prosecuted); Commonwealth v. Bonasorte, 337 Pa.Super. at 349, 486 A.2d at 1370 n. 12. (defendant was charged with crimes following the execution of a search warrant; informant was not a percipient witness where he was not present during the search). See Commonwealth v. Payne, 540 Pa. 54, 656 A.2d 77 (1994) (supreme court distinguishes cases where informer provides probable cause for the issuance of a search warrant from non-warrant cases where informer is a material witness to the commission of the crime).


author: DEL SOLE, Judge:

text:
    663 A.2d 780

    The ESTATE OF Paul S. ROYER, and Virginia Rhine and Kathryn Claar, Co-Executrices of the Estate of Paul S. Royer, Appellants, v. WINELAND EQUIPMENT, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued April 26, 1995.
    Filed Aug. 21, 1995.

      Edward E. Zang, Altoona, for appellants.
    Shari R. Routch, Hollidaysburg, for appellee.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   DEL SOLE, Judge:

In a deed drafted October 31, 1966, Margaret and Paul Royer, both now deceased, conveyed to Wineland Equipment, Inc. (Appellee) title to certain land. The deed also contained a provision regarding a right to purchase a remaining twenty acres for $6000 should the Royers decide to sell that property. In 1994, after the death of Mr. and Mrs. Royer, an action seeking to Quiet Title was brought by Appellants, the Co-Executrices of the Estate of Paul S. Royer. Appellants asked the court to declare the language of the deed, granting the right of first refusal, a nullity. Appellants wanted to offer the acreage for sale without being required to first offer it to Wineland for a purchase price of $6,000. The trial court denied the relief sought and ruled that the “right of first refusal” language does not violate the Rule Against Perpetuities (20 Pa.C.S.A. 6104., et seq.) and does not constitute an unreasonable restraint on alienation. Therefore, the court concluded the provision was valid and enforceable. From this ruling, Appellants appeal.

We are now presented with the sole question of whether the provision contained in the deed which grants to Wineland the right to purchase the property in question for a fixed price, should the Grantors decide to sell, is valid and enforceable. Appellants argue that the long delay of 27 years, coupled with the death of the owners of the property and a substantial increase in its value, terminates any rights of Wineland.

The specific language at issue reads:

In accordance with an Article of Agreement made the day of March, 1965, with Galen F. Wineland and Foster F. Wine-land, co-partners trading and doing business as Wineland Farm Implements, now doing business as Wineland Equipment, Inc., the Grantors herein agree that if they decide to sell the remainder of the farm, containing an estimated Twenty (20) acres, more or less, together with a house, barn and outbuildings, that they will give the first opportunity and privilege to the Grantee herein to purchase the same at a fixed sum of Six Thousand ($6,000.00) Dollars. If Grantors decide to sell the remainder of the farm, they shall give the Grantee herein notice in writing of said intention to sell and the Grantee shall have a period of Thirty (30) days there-after within which to accept or reject the opportunity to purchase the remainder of the farm, they shall first give the Grantee herein notice in writing of said intention to sell and the Grantee shall have a period of Thirty (30) days thereafter within which to accept or reject the opportunity to purchase the remainder of the farm, said notice of acceptance or rejection must be made in writing to Grantors within the Thirty (30) day period. If the Grantee gives notice of acceptance in writing as aforesaid, settlement and possession shall be made within Thirty (30) days of the date of said acceptance notice. If the Grantee rejects said option privilege, the Grantors shall be free to convey the property to any other party at the receipt of the notice of rejection.

Our review of the provision at issue and the relevant law causes us to conclude that the trial court did not error in ruling that the “right of first refusal,” or right of pre-emption, as it is sometimes called, was not an unreasonable restraint on alienation, nor was it unconscionable. In return for certain consideration, the original parties made a bargained-for exchange, in which a portion of farm land was conveyed with an option to purchase the remainder at a fixed price should the sellers ever decide to sell it. Although the agreement did not set forth a time limit after which this provision will expire, we need not try to impose an interpreted “reasonable” period of time as Appellants would wish. Rather, the rule against perpetuities, which provides that an interest must vest, if at all, within twenty-one years of a life in being, governs. See, Pa.C.S. § 6104.

In Central Delaware County v. Greyhound 527 Pa. 47, 588 A.2d 485 (1991), the court was considering the validity of a repurchase option, which like the “right of first refusal” option in the instant case, is not a vested estate. The court quoted from Barnes v. Rea, 68 A. 836, 219 Pa. 279 (1908), when describing how an option is a future interest, not a presently vested interest, and therefore the rule against perpetuities applies:

An option is a unilateral agreement, binding upon the optionor from the date of its execution, but does not become a contract inter parties in the sense of an absolute contract to convey on the one side and to purchase on the other until exercised by the optionee.
Central Delaware County v. Greyhound, at 53, n. 6, 588 A.2d 485.

Thus, this “right of first refusal” is subject to the rule against perpetuities. Because the common law rule was replaced in Pennsylvania by a wait-and-see statute, See Id., at 55 n. 8., 588 A 2d 485, the interest in this case will not expire until twenty-one years after the death of the last life in being at the time the interest was created. 20 Pa.C.S.A. 6104(b). In this case, twenty-one years after the death of the last life in being, which is measured from the death of Paul S. Royer, is June 3, 2014. Until such time the provision at issue remains valid and enforceable. If Appellants wish to sell the property prior to that date, they must first offer it for sale to Wineland under the provisions of their agreement. If Appellants choose to wait until the year 2014, the right of first refusal will have expired and they would then remain free to sell the property to whomever they wish at whatever price is agreed.

We do not view this “right of first refusal” as an unreasonable restraint on alienation. While it necessarily limits to some degree the transfer of this property, the limitation is not unreasonable. The agreement was part of a transaction which was a bargained-for exchange. Although the original parties set on a fixed price, this does not prevent the present parties under the present conditions from renegotiating and establishing a new price. Realistically, each must take into account an understanding of their existing rights and responsibilities. The parties can negotiate realizing that the property may now be worth far more than the price stated in the agreement, and realizing that Winelands’ right of first refusal will terminate in the year 2014. If Appellants believe it is to their advantage to transfer the property before that time, they can attempt to negotiate a new price. Likewise if Wineland desires to obtain the land prior to the expiration of its right of first refusal, it is free to enter a new agreement with Appellants. Further, for a specified price, the parties can agree to be released from their obligations. Thus, while some courts have viewed a pre-emptive right which sets forth a fixed price as an unreasonable restraint on alienation, See Pre-emptive Rights to Realty As Violation of Rule Against Perpetuities or Rule Concerning Restraints On Alienation, 40 ALR3d 920, we conclude that such a restraint is not unreasonable. Its presence establishes the parties rights which they are free to change by subsequent agreement.

For these reasons, we affirm the trial court’s order.

Order affirmed.


text:
    663 A.2d 783
    LESWAT LIGHTING SYSTEMS, INC., Appellant, v. LEHIGH VALLEY RESTAURANT GROUP, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued June 15, 1995.
    Filed Aug. 23, 1995.

      Edward H. McGee, Allentown, for appellant.
    Jeffrey D. Lobach, York, for appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the order of August 10,1994, entered in the Court of Common Pleas of Lehigh County dismissing the complaint filed by Leswat Lighting Systems, Inc. (“Appellant”) against Lehigh Valley Restaurant Group, Inc. (“Appellee”). In this matter, we are asked to determine whether appellant is barred from bringing an action in Pennsylvania on the ground that it lacks a certificate of authority to do business in this Commonwealth. We affirm.

We recount the history of this case as follows: On May 25, 1994, appellant filed a complaint that contained the following allegations:

1. The [Appellant], ..., is a corporation with an office located at 2022-E South Grand Avenue, Santa Ana, California, 92705.
2. The [Appellee], ..., is a Pennsylvania corporation with an office located at 4688-A Broadway Allentown, Le-high County, Pennsylvania, 18104.
3. An agreement was entered into between the [Appellant] and [Appellee] whereby the [Appellant] was to provide energy efficient lighting products for a price of $25,855.18 as indicated in the quotation form attached hereto as Exhibit “A”. The quotation form and the instructions from [Appellee] indicates that the bills should be invoiced to WBG Construction, Inc. Following the original order, additional orders were placed for energy efficient lighting products for a total price of $26,909.96 as indicated on the copies of the invoices attached hereto collectively as Exhibit “B”.
4. [Appellant] has delivered the energy efficient lighting products to WBG Construction, Inc., at the address of 4688-A Broadway, Allentown, Lehigh County, Pennsylvania at the direction of the [Appellee].
5. Defendants have paid nothing toward the $26,909.96 due.
6. [Appellant] has demanded of [Appellee] that the account be paid. [Appellee] has so far refused. This is the fair and reasonable value of the goods provided by the [Appellant] on behalf of the [Appellee] and at the [Appellee’s] direction.
WHEREFORE, the [Appellant] demands judgment against [Appellee] in the amount of $26,909.96, plus interest and costs.

R. 1.

Thereafter, appellee filed preliminary objections requesting a dismissal of the complaint on the basis that appellant lacked the capacity to institute suit in Pennsylvania. Appellee alleged that appellant had not applied for and had not been issued a certificate of authority to do business in the Commonwealth. R. 4.

On August 10, 1994, the court below entered an order sustaining the preliminary objections and dismissing the complaint. The lower court found that appellant failed to secure a certificate of authority and thus lacked the capacity to bring action in Pennsylvania. R. 7. This timely appeal ensued.

“On review, we must determine whether the complaint’s factual allegations, if proven, would be sufficient to entitle appellant to relief. In making that determination, we accept as true all well-pleaded facts and the reasonable inferences to be drawn therefrom.” Parano v. O’Connor, 433 Pa.Super. 570, 574, 641 A.2d 607, 609 (1994), citing Gordon v. Lancaster Osteopathic Hospital Assoc., 340 Pa.Super. 253, 260, 489 A.2d 1364, 1368 (1985). “[Preliminary objections should be sustained and a complaint dismissed only in cases which are clear and free from doubt.” Croom v. Selig, 318 Pa.Super. 206, 210, 464 A.2d 1303,1305 (1983), quoting Harkins v. Zamichieli, 266 Pa.Super. 401, 404-05, 405 A.2d 495, 497 (1979) (citations omitted).

Herein, appellant raises the following issue for our evaluation: “WHETHER THE [APPELLANT’S] COMPLAINT SHOULD HAVE BEEN DISMISSED BASED ON A LACK OF REGISTRATION AS A FOREIGN CORPORATION EVEN THOUGH THE MATTER SUED UPON WAS A SALES ORDER ACCEPTED OUTSIDE THE COMMONWEALTH OF PENNSYLVANIA AND IN INTERSTATE COMMERCE.” Appellant’s Brief at 3.

Section 4141(a) of the Pennsylvania Business Corporation Law (“PBCL”) states in pertinent part:

§ 4141. Penalty for doing business without certificate of authority
(a) Right to bring actions or proceedings suspended.— A nonqualified foreign business corporation doing business in this Commonwealth within the meaning of Subchapter B (relating to qualification) shall not be permitted to maintain any action or proceeding in any court of this Commonwealth until the corporation has obtained a certificate of authority....

15 Pa.C.S.A. § 4141(a) (emphasis added).

Appellant does not dispute the fact that it failed to apply for and obtain a certificate of authority. Appellant maintains, however, that it was not required to secure a certificate of authority because it was not doing business in Pennsylvania. To buttress its argument, appellant directs our court’s attention to § 4122(a)(6) and (9) of the PBCL which provide:

§ 4122. Excluded activities
(а) General rule. — Without excluding other activities that may not constitute doing business in this Commonwealth, a foreign business corporation shall not be considered to be doing business in this Commonwealth for the purposes of this subchapter by reason of carrying on in this Commonwealth any one or more of the following acts:
‡ :{: * sf: $ *
(б) Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, and maintaining offices therefor, where the orders require acceptance without this Commonwealth before becoming binding contracts.
sf: sf: if: * * %
(9) Transacting any business in interstate or foreign commerce.

15 Pa.C.S.A. § 4122(a)(6) and (9).

Our examination of the complaint and the attached exhibits reveals that appellant entered into a contract with appellee, a Pennsylvania party, and that from December of 1992, to May of 1993, appellant shipped products to Allentown on approximately six occasions. We construe these facts as within the realm of “doing business” in this Commonwealth and not as excluded activities. See Committee Comment to 15 Pa.C.S.A. § 4122 (“any conduct more regular, systematic, or extensive than that described in subsection (a) constitutes the transaction of business and requires the corporation to obtain a certificate of authority”); Commonwealth by Preate v. Events International, Inc., 137 Pa.Commw. 271, 280-81, 585 A.2d 1146, 1151 (1991) (foreign corporations’ solicitation of charitable donations by phone calls to donors in Pennsylvania constituted “doing business” in the Commonwealth and was not excepted under § 4122(a)(6) of the PBCL).

Because we find that appellant was “doing business” in Pennsylvania and failed to obtain a certificate of authority, we conclude that the lower court properly determined that it lacked the capacity to institute suit in this Commonwealth. Hence, we hold that the court below did not commit an error of law in dismissing the complaint.

Order affirmed.

      . Appellee engaged WBG Construction, Inc., a general contractor, for the construction of a restaurant in Allentown. Appellant sent the invoices to WBG’s address in New York, NY.

      . Appellee also requested that the complaint be dismissed or stricken because appellant failed to comply with Pa.R.Civ.P. 1024, 42 Pa.C.S.A.R. 4.


author: CAVANAUGH, Judge:

text:
    663 A.2d 785
    Carol L. KELLEY, Appellee, v. Leonard KELLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1995.
    Filed Aug. 24, 1995.

      George A. Gallenthin, III, Doylestown, for appellant.
    Paul R. Beckert, Jr., Bensalem, for appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CAVANAUGH, Judge:

This matter is presently before this court on Leonard Kelley’s appeal from the order of the Court of Common Pleas of Bucks County which, on November 10, 1994, denied his petition to suspend support payments. For the reasons which follow, we affirm.

The facts pertinent to our disposition of this case begin on August 19, 1993 when the parties attended a support hearing in the Court of Common Pleas of Bucks County before the Honorable Michael J. Kane. Apparently unhappy with the proceedings of August 19th, on August 20, 1993 appellant telephoned the law offices of Eastburn and Grey, P.C. and allegedly threatened to kill attorney Eastburn and Judge Kane. Appellant was arrested, tried and found guilty of two counts of terroristic threats. He was sentenced to serve a term of imprisonment of from six months to five years.

After his sentence was imposed appellant petitioned to suspend his support obligation claiming that, since he was incarcerated, his income had been reduced to zero. This petition was denied on November 10, 1994. The propriety of that order is before us today.

On appeal, Mr. Kelley claims only that the court below abused its discretion when it denied his petition to suspend his existing support order while he was incarcerated.

“Our scope of review in support matters is well settled. Absent an abuse of discretion, we will not disturb on appeal a properly entered support order.” Depp v. Holland, 431 Pa.Super. 209, 213, 636 A.2d 204, 205 (1994), quoting Oeler v. Oeler, 527 Pa. 532, 594 A.2d 649, 651 (1991).

“When determining whether to allow a reduction in a support order, the trial court must consider all pertinent facts and base its decision upon facts included in the record.” Fitzpatrick v. Fitzpatrick, 412 Pa.Super. 382, 386, 603 A.2d 633, 635 (1992). “A court may only modify an existing support award when a material and substantial change in circumstances has occurred since the entry of the original support order. The petitioner has the burden of proving such change in circumstances.” Id., 386, 603 A.2d at 635.

Appellant failed to meet this burden. Appellant relied exclusively on his incarceration to support his petition to suspend. This was insufficient in that it was but one of several factors that the court considered (including the fact that the appellant’s imprisonment was a direct result of his anger and frustration over his support obligation) in refusing to suspend appellant’s support order. Clearly the court did not abuse its discretion by finding that appellant had not proved a sufficient change of circumstances so as to modify the existing support order.

Appellant also claims that the court below failed to “distinguish” the case of Leasure v. Leasure, 378 Pa.Super. 613, 549 A.2d 225 (1988) in its decision. In Leasure a panel of this court directed that support be suspended for an incarcerated defendant. However, in that case, the defendant’s other assets were also considered and the court was “satisfied that appellant [was] unable to pay support during his incarceration.” Id., at 618, 549 A.2d at 228. Appellant herein made no such showing.

We also wish to highlight the lower court’s cogent statement made in its opinion to this court:

... if we were to relieve defendant of his support payments, the message being sent to the parents of Bucks County would be — if you are unhappy over the status or amount of your support order, and you threaten to kill an attorney or the judge handling your case, your duty of support ends during any period of time you are incarcerated for making such threats.

We agree and therefore hold that a payor parent may not use a self-imposed incapacity to earn an income as a reason to avoid support responsibility.

Order affirmed.


author: CERCONE, Judge:

text:
    663 A.2d 787
    COMMONWEALTH of Pennsylvania, Appellant, v. Terrell Buttons JOHNSON a/k/a Howard McCam a/k/a Howard McKamey.
    Superior Court of Pennsylvania.
    Submitted July 17, 1995.
    Filed Aug. 24, 1995.

      Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellant.
    Stephen H. Begler, Pittsburgh, for appellee.
    Before KELLY, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This is a Commonwealth appeal from an order of court granting appellee’s suppression motion. We vacate and remand for further proceedings consistent with this opinion.

The Honorable W. Terrence O’Brien has provided us with a synopsis of the pertinent facts:

On April 9, 1994, Pittsburgh police detective Christopher Deasy was the front seat passenger in an undercover police vehicle driven by his partner, Detective Stegana. These officers were working with three other officers in a car ahead of them, in the Hazelwood section of Pittsburgh. During the course of this patrol Deasy observed the front seat passenger of a station wagon [appellee Terrell Buttons Johnson a/k/a Howard McKam a/k/a Howard McKamey] travelling ahead of the other police car throw a number of plastic baggies out of the window. Deasy asked Stegana to stop their police car so he could get out and inspect the baggies. Upon doing so Deasy noticed the corners of the baggies were missing. Knowing from his years as a narcotics detective that illegal drugs are often packaged in corners cut from such baggies, Deasy’s suspicions were aroused. He got back in his car, radioed his findings to the other police vehicle and followed the station wagon. As Stegana and Deasy drew closer to it, Deasy observed [appellee] ... turn around and reach back to the back seat passenger. The officers then pulled the station wagon over and ordered the occupants out. When Detective Weismantle observed a large object in the front pants pocket of the back seat passenger, he seized it from her. It was a handgun.

Suppression court opinion 5/24/95 at 1-2 (citation to the record and footnote omitted).

The officers arrested appellee, charging him with carrying a firearm without a license, disorderly conduct, resisting arrest, and corruption of minors. Appellee filed a motion to suppress, claiming that because the police lacked justification to conduct the stop, the gun seized pursuant to that stop was inadmissible. At the conclusion of the suppression hearing, the lower court granted appellee’s motion. In the instant timely appeal, the Commonwealth argues that the baggies were sufficiently indicative of a crime to provide the police with reasonable suspicion to stop appellee’s vehicle. As such, the lower court improperly granted appellee’s motion to suppress. In its Opinion dated 5/24/95, the lower court reconsidered its suppression order and likewise recommended reversal.

In reviewing an appeal taken by the Commonwealth from a suppression order,

we must consider only the evidence of the defendant’s witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. Furthermore, our scope of appellate review is limited primarily to questions of law. We are bound by the suppression court’s findings of fact if those findings are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected.

Commonwealth v. Bennett, 412 Pa.Super. 603, 606, 604 A.2d 276, 277 (1992) (quoting Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988), appeal denied, 520 Pa. 588, 551 A.2d 215 (1988) (citations omitted)). Although we are bound by the lower court’s findings of fact which are supported by the record, we are not bound by the legal conclusions drawn from those facts. Commonwealth v. Toanone, 381 Pa.Super. 336, 340, 553 A.2d 998, 999 (1989).

In ascertaining whether reasonable suspicion or probable cause exists, a reviewing court must examine the totality of the circumstances to discern whether there exists a particularized and objective basis for suspecting the individual stopped of criminal activity. Commonwealth v. Epps, 415 Pa.Super. 231, 233-34, 608 A.2d 1095, 1096 (1992). A police officer may properly consider the

modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.... [T]he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Epps, 415 Pa.Super. at 234, 608 A.2d at 1096. The police need not establish their suspicions to a level of certainty, a preponderance, or even a fair probability. Id. at 233, 608 A.2d at 1096. Rather, the minimal intrusion attendant to an investigatory stop is justified by reasonable suspicion that criminal activity is afoot. Id.

In this case, Officer Deasy stopped appellee’s car after watching appellee discharge plastic baggies from the -window. Closer inspection revealed that the corners of the baggies had been cut. The officer knew from his experience in investigating narcotics offenses that the corners of plastic baggies are used for drug packaging. See also Commonwealth v. Torres, 421 Pa.Super. 233, 617 A.2d 812 (1992), appeal denied, 535 Pa. 618, 629 A.2d 1379 (1993) (expert noted that drugs are often wrapped in the corners of sandwich bags and testified that unopened boxes of sandwich bags constituted drug packaging material sufficient to support a conviction for possession of drug paraphernalia). As such, the officer acted pursuant to an articulable, particularized suspicion, based on objective physical evidence and a trained officer’s reasonable inferences therefrom, that a specific crime, namely possession, was being committed. See Epps, supra, 415 Pa.Super. at 235-36, 608 A.2d at 1097 (officer who noticed broken vent window on a car and consequently stopped its driver, based reasonable suspicion on the knowledge gained from his experience in investigating automobile theft that thieves often gain entry to automobiles by breaking vent windows, rather than a car’s larger, more conspicuous windows). We conclude, therefore, that the baggies, as understood by those versed in the field of law enforcement, provided the investigating officer with reasonable suspicion to suspect criminal activity was afoot. Because the officer was therefore justified in conducting an investigatory stop, suppression of evidence seized pursuant to that stop was improper.

We vacate the suppression order and remand for further proceedings consistent with this opinion. Jurisdiction is relinquished.

KELLY, J., concurs in the result.

      . 18 Pa.C.S.A. § 6106.

      . Id. § 5503(a)(1)-(04).

      . Id. § 5104.

      . Id. § 6301.

      . Counsel for appellee has conceded that if the stop were lawful, then the seizure of appellee’s gun was proper. Accordingly, we need not address the propriety of that seizure. N.T. 2/27/95 at 19. Further, we note with disfavor, appellee’s woefully inadequate exercise in appellate advocacy. Rather than filing a responsive brief, appellee has presented this court only with the following statement:
      In light of the opinion written by Judge W. Terrence O’Brien, and the Brief submitted by the Commonwealth of Pennsylvania, the Appellee concedes this appeal of the Commonwealth and consents to the Order Denying Suppression in the above-captioned matter.
      Statement of Appellee at 1.


text:
    663 A.2d 790
    COMMONWEALTH of Pennsylvania v. Rhonda JARVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1995.
    Filed Aug. 24, 1995.
    Aaron C. Finestone, Philadelphia, for appellant.

      Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, P.J., and HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from a judgment of sentence entered after a bench trial. We dismiss the appeal.

The Philadelphia police arrested appellant, Rhonda Jarvis, on April 19, 1993 and charged her with murder and abuse of corpse. These charges stemmed from the death of appellant’s three year old daughter, Marissa Jarvis, whose corpse was thrown out a fifth floor hotel window. Appellant filed an omnibus pre-trial motion, and requested several continuances. On August 12,1993, the Honorable Legróme D. Davis ordered a psychiatric examination for appellant. The defense filed a supplemental omnibus motion concerning a requested competency hearing, and the case was again continued. On November 3, 1993, the Honorable Lisa A. Richette found appellant incompetent to stand trial and ordered her committed to Norristown State Hospital for sixty days. Appellant was recommitted to Norristown several times. Finally, on July 20, 1994, Judge Richette determined that appellant was competent to stand trial.

On July 27, 1994, appellant waived her right to a jury trial and entered a plea of not guilty on all charges. After conducting a non-jury trial, Judge Richette found appellant guilty of involuntary manslaughter and abuse of corpse. The lower court has explained the facts underlying the convictions in the following manner:

The defendant, a native of St. Louis, Missouri, arrived in Philadelphia in early April, 1993 from Milwaukee, Wisconsin where she had been staying with her sister. Accompanying her was her three year old daughter Marissa. She and the child checked into the Apollo Hotel at 1918 Arch Street, a five story structure. According to the manager of the hotel the defendant had checked in a day or two before the tragedy occurred and then left for Newark, New Jersey for a few days before returning.
At about 8:30 a.m. on April 17, 1993, the manager of the Apollo Hotel heard a loud sound; the awning of the building had collapsed and on the sidewalk lay the motionless body of Marissa Jarvis. Beside her was a small plastic toy which, according to Officer Virginia Pagano, [looked] as though it had flown out of the child’s hand. Superficially, the scene was designed to represent an accidental fall.
However, the testimony of the medical examiner, Dr. Ian Hood, convincingly established a totally different scenario. The child had been dead before her body hit the sidewalk. She had suffered a serious skull fracture. There were dry abrasions on her left forehead and left eye. Her body temperature at the time she arrived in the emergency room was 87 degrees, indicating that she had been dead for several hours. The fracture to her skull had been caused by a severe impact to the back of her head. According to Dr. Hood, the surface her head struck was either a wall, [a] radiator, or a headboard of a bed. The injury caused a linear fracture to the brain stem and brain; a trauma that would inevitably cause death. Dr. Hood established conclusively via slides that the fall from the window did not contribute to Marissa’s death.
When she was arrested, the defendant told police investigators that Marissa wet the bed; she then hit Marissa causing her to fall on the floor between the heater and an armchair. Unable to find a heart beat, the defendant decided to stage a fake accident by placing the child’s body on the window sill with her toy and then pushing her out the window.

Trial court opinion filed February 24,1995 at 3-5 (emphasis in original; citation to notes of testimony omitted).

After entering the guilty verdicts, the lower court ordered pre-sentence and mental health evaluations for appellant. On October 26, 1994, Judge Richette sentenced appellant to serve two and one-half (2]é) to five (5) years imprisonment for involuntary manslaughter with a consecutive term of one (1) to two (2) years incarceration for abuse of corpse. The lower court also committed appellant to Norristown State Hospital for ninety days. On January 26,1995, the trial court ordered appellant to complete her sentence at the S.C.I. Muncy.

Appellant filed a timely notice of appeal on October 27,1994. She raises one issue for our consideration: “Did the Lower Court abuse its discretion in imposing maximum consecutive sentences for involuntary manslaughter ... and abuse of corpse ... where the sentences imposed were greater than the aggravated range of the Sentencing Guidelines, the Defendant had no prior criminal record, the Defendant completed what would have been a Guidelines sentence by the date of sentencing, and the Defendant needed mental health treatment?” Appellant acknowledges that this claim goes to the discretionary aspects of sentencing, not to the legality of the sentence.

As an initial matter, we note that appellant never filed a post-sentence motion requesting reconsideration/modification of sentence. The version of Rule of Criminal Procedure 1410 applicable to determinations of guilt which have occurred after January 1, 1994 does not dispense with the need to preserve challenges to the discretionary aspects of a sentence by means of such a motion. Although the new rule characterizes a motion to modify sentence as “optional,” the rule plainly states that only issues which were presented to the trial court before or during trial shall be deemed preserved for appeal in the absence of a post-trial motion. Pa.R.Crim.P., Rule 1410B(1)(c), 42 Pa.C.S.A. The modifications to Rule 1410 have not altered the requirement of Rule of Appellate Procedure 302 which states that “[fissues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. See Commonwealth v. Krum, 367 Pa.Super. 511, 513-15, 533 A.2d 134, 135-36 (1987) (en banc) (issues not going to the legality of a sentence are waived if they have not been raised via oral or written motion to modify sentence prior to appeal). Because appellant never provided the trial judge with the opportunity to reconsider or modify sentence, this issue is waived. Appellant may not challenge the discretionary aspects of her sentence for the first time on appeal.

Appeal dismissed.

      . 18 Pa.C.S.A. § 2502.

      . Id. at § 5510.

      . The transfer to Muncy was made conditional on appellant’s medication being made available to her at the State Correctional Institution.

      . We are cognizant of the fact that defense counsel must have signified in some unspecified manner to the trial court that he disapproved of the sentence at issue here. At appellant’s sentencing hearing, Judge Richette explained that she was going to impose the maximum term possible “despite [defense counsel’s] objections.” N.T. 10/26/95 at 3. However, the nature of counsel's disapproval and the form the "objections” took is not a matter of record in this case. We have meticulously scrutinized the certified record and find it devoid of any other indication that appellant found the sentence unacceptable until she lodged her notice of appeal with this court.
      The Comment to Rule 1410 clearly states that issues raised at the sentencing proceeding need not, but may, be raised in a motion to modify sentence in order to preserve them for appeal. The Comment specifically cautions that counsel should carefully consider whether the record created at the sentencing proceeding is adequate for appellate review of the issues. See R.Crim.P., Rule 1410, 42 Pa.C.S.A., Comment (Miscellaneous) ¶ 6. It suffices to state that the record was inadequate in this case to preserve appellant’s discretionary challenge.