author: CERCONE, Judge.

text:
    675 A.2d 734
    COMMONWEALTH of Pennsylvania v. James E. CAROTHERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1995.
    Filed April 22, 1996.

      William J. Hathaway, Erie, for appellant.
    Patrick M. Carey, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before TAMILIA, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from a judgment of sentence entered after appellant James E. Carothers was found guilty of burglary, theft by unlawful taking, possession of instruments of crime and criminal mischief. We vacate the judgment of sentence and remand for a new trial.

On February 21, 1993, police officers, responding to the reported burglary of a bar, saw an individual who was dressed in a dark, three-quarter length coat, run from the rear of the bar. While pursuing the suspect, the officers saw appellant crouching in an alley near the bar. When apprehended, appellant was wearing dark clothing, but not a coat. The officers followed tracks left by appellant in the snow and found a three-quarter length coat containing $220.00 in one, five and ten dollar denominations, a pry bar and a particle mask. The police arrested appellant and charged him with the foregoing crimes.

On February 22, 1993, the [Ippellant] applied for a Public Defender and was appointed counsel. The Public Defender’s office then became aware that the Defendant had been employed by Erie Malleable Iron at the approximate rate of $10.00 per hour for aji years until June 29,1993. Therefore, the [appellant] was required to fill out a new application on June 30, 1993, and was denied on the basis that he earned too much money between his previous job and impending unemployment compensation. Consequently, on July 1, 1993, Judge Shad Connelly granted the Public Defender’s motion to withdraw as counsel. Judge Connelly also granted the [appellant’s] request for a continuance of his trial in order to secure an attorney on July 13, 1993. Judge Connelly then became informed of the possibility that the appellant was ineligible for unemployment benefits and requested the Public Defender’s office on August 24, 1993, to inquire into the matter further. On August 25, 1993, the Public Defender’s office wrote a letter to the Defendant asking him to reapply. The appellant did reapply on September 2, 1993, but was again informed that he did not qualify because he was receiving $325.00 per week in unemployment compensation. Subsequently, Judge Connelly granted the appellant a second continuance on September 13, 1993, to the October trial term to enable the appellant to have more time to obtain an attorney. On October 15,1993, the appellant appeared before this Court for his trial. The Defendant informed this Court that he was proceeding pro se since he failed to secure counsel, although he was already granted two continuances that directed him to retain private counsel.

Trial court opinion dated April 17,1995 at 1-2.

The jury found appellant guilty of burglary, theft by unlawful taking and possession of instruments of crime and the trial judge found appellant guilty of criminal mischief. After denying appellant’s post-trial motions, the lower court sentenced appellant to a term of imprisonment of not less than three and one half (3]é) nor more than ten (10) years and to a consecutive five year term of probation.

Appellant filed a pro se notice of appeal and statement of matters complained of on appeal. After filing its opinion, the trial court appointed counsel to represent appellant in this appeal. Appellant presents the following claims for our review:

I. Whether the appellant was afforded ineffective assistance of counsel due to the failure to pursue pre-trial discovery and other pre-trial motions including a motion to suppress evidence?
II. Whether the trial court erred in compelling the appellant to proceed to trial without the benefit of counsel and in otherwise failing to conduct a legally sufficient colloquy with the appellant to establish his voluntary and intelligent waiver of the right to counsel?
III. Whether there was sufficient evidence presented at trial for a reasonable jury to find the appellant guilty of the charges?

Brief of Appellant at 3. We shall begin by addressing appellant’s challenge to the sufficiency of the evidence.

When presented with a challenge to the sufficiency of the evidence, an appellate court must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could have determined that all the elements of the crime have been established beyond a reasonable doubt. Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995); Commonwealth v. Martin, 433 Pa.Super. 280, 285, 640 A.2d 921, 923 (1994). In making this determination, we must evaluate the entire trial record and consider all the evidence actually received. Commonwealth v. Woods, 432 Pa.Super. 428, 432, 638 A.2d 1013, 1015 (1994), appeal denied, 539 Pa. 650, 651 A.2d 537 (1994). It is within the province of the fact finder to determine the weight to be accorded each witnesses’ testimony and to believe all, part, or none of the evidence introduced at trial. Commonwealth v. Molinaro, 429 Pa.Super. 29, 33, 631 A.2d 1040, 1042 (1993).

The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ”

Commonwealth v. Hodge, 441 Pa.Super. 653, 657, 658 A.2d 386, 387-88 (1995) (quoting Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977) and Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943)).

Appellant appears to challenge only the Commonwealth’s identification evidence: “In considering the totality of the identification evidence connected to the appellant, the quantum of proof proffered by the Commonwealth was so weak and inconclusive that a reasonable jury could not have found the appellant guilty of the criminal charges beyond a reasonable doubt.” Brief of Appellant at 14. Preliminarily, we note that a verdict may not be based wholly on inference and suspicion. Commonwealth v. Gorby, 527 Pa. 98, 107, 588 A.2d 902, 906 (1991). Nevertheless, the Commonwealth may rely on circumstantial evidence alone to sustain its burden of proof. Id.; Commonwealth v. Alvarado, 333 Pa.Super. 63, 67, 481 A.2d 1223, 1225 (1984) (circumstantial evidence, including that defendant was found inside a closed grocery store at 4:30 in the morning, the store had been ransacked, a cigarette machine had been broken, defendant was holding a trash bag filled with cigarettes, and defendant fled when approached by the police, was sufficient to sustain burglary and criminal conspiracy convictions).

In this case, Officers Skonieczka and Heidt saw an individual who was wearing a dark, three-quarter length coat, run from the rear of the burglarized bar. They pursued the suspect by foot until he jumped over a fence. Officer Heidt advised other officers of the suspect’s direction of travel. Two police officers then saw appellant crouching in an alley in the area Officer Heidt had described. When apprehended, appellant was wearing dark clothing, but not a coat. He was breathing heavily and perspiring. The officers followed boot tracks left by appellant in the snow and found a three-quarter length coat containing $220.00 in one, five and ten dollar denominations, a pry bar and a particle mask. Both the bar’s cash register and the juke box had been pried open. Moreover, a matching particle mask was found in the trunk of a car which was parked nearby and owned by appellant’s common law wife. Appellant’s boot prints also led to the bar’s rear entrance. Based on the foregoing, we deem appellant’s challenge to the sufficiency of the Commonwealth’s identification evidence meritless. See Commonwealth v. Kale, 331 Pa.Super. 155, 480 A.2d 291 (1984) (evidence was sufficient to support conviction for attempted burglary when police found footprints in the snow leading from the scene of the crime to the place where defendant was hiding, glass and wood fragments found in defendant’s gloves and shoes matched wood and glass from a broken window of the jewelry store, and the witness stated that the window was intact just a few hours before the incident).

We shall next consider whether the trial court erred in directing appellant to proceed pro se. Pursuant to Article I, Section 9 of the Pennsylvania Constitution and the Sixth Amendment of the United States Constitution, criminal defendants have the right to dispense with counsel and to conduct their own defense. Commonwealth v. Starr, 541 Pa. 564, 579, 664 A.2d 1326, 1334 (1995) (citing Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975)). Before a defendant may be permitted to proceed pro se, however, the defendant must first demonstrate that the waiver is knowing, voluntary and intelligent. Id. at 581, 664 A.2d at 1335. The trial court is required to make a searching and formal on-the-record inquiry to ascertain “(1) whether the defendant is aware of his right to counsel or not and (2) whether the defendant is aware of the consequences of waiving that right or not.” Id. The judge must elicit, at a minimum, the following information:

(1) That the defendant understands that he has the right to be represented by counsel, and the right to have free counsel appointed if he is indigent.
(2) The the defendant understands the nature of the charges against him and the elements of each of those charges.
(3) That the defendant is aware of the permissible range of sentences and/or fines for the offenses charged.
(4) That the defendant understands that if he waives the right to counsel he will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules.
(5) That the defendant understands that there are possible defenses to these charges which counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently.
(6) That the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.

Comment to Pa.R.Crim.P. 318, 42 Pa.C.S.A.

The presumption must always be against the waiver of a constitutional right. Nor can waiver be presumed where the record is silent. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver. Thus, this Court is constitutionally bound to place the burden of proving waiver on the Commonwealth.

Commonwealth v. Monica, 528 Pa. 266, 272-74, 597 A.2d 600, 603 (1991).

The circumstances of this case are similar to those enumerated in Commonwealth v. Wentz, 280 Pa.Super. 427, 421 A.2d 796 (1980), appeal dismissed, 495 Pa. 616, 435 A.2d 176 (1981). In Wentz, appellant appeared pro se at his arraignment, entered a plea of not guilty and was advised by the trial court to obtain counsel. He had applied for and been denied the assistance of a public defender. On the day of trial, appellant stated that he had not obtained counsel but failed to reveal whether he had ever attempted to obtain private counsel. The trial court informed appellant that he could retain private counsel or proceed pro se. Appellant explained the absence of counsel by stating that he did not know any attorneys in the area. The trial court directed appellant to proceed pro se. Id. at 431, 421 A.2d at 798. On appeal, the Superior Court held:

[A] criminal defendant who has been duly notified of the date of his trial, and who has been advised to obtain counsel to represent him and who, nevertheless, appears in court on the scheduled date without counsel and with no reasonable excuse for the lack thereof and no concrete plans for the obtaining of counsel has waived his right to counsel.

Id. at 434, 421 A.2d at 800.

In Commonwealth v. Brown, 327 Pa.Super. 505, 476 A.2d 381 (1984), this court distinguished Wentz, supra. On September 27, 1982, appellant Brown applied for public defender assistance but was deemed ineligible. Appellant appeared pro se before the trial court on October 28, 1992. During the ensuing colloquy, appellant advised the trial court that although he could not afford an attorney, he had been denied the assistance of the public defender. The trial court granted appellant a continuance after informing him that he could proceed pro se or hire a private attorney. On the date of trial, appellant claimed that he had made one attempt to hire an attorney but again stressed that he lacked sufficient funds. Appellant proceeded to trial pro se.

Id. at 509, 476 A.2d at 382-83.

The Commonwealth, relying on Commonwealth v. Wentz, supra, argued that appellant had waived his right to counsel. A panel of this court distinguished Wentz and found that appellant, by asserting his inability to afford counsel, had presented a “reasonable excuse” for appearing without counsel. Brown, 327 Pa.Super. at 519-20, 476 A.2d at 388. Furthermore, the reviewing court noted the trial court’s failure to conduct a colloquy into the circumstances of the waiver and remanded for a new trial. Id. at 520, 476 A.2d at 388.

Similarly, the appellant in this case informed the court that he was appearing for trial without counsel because, despite his technical ineligibility for a public defender, he could not afford a private attorney. As in Brown, we find that appellant has presented a “reasonable excuse” for appearing without counsel. Were we to end our inquiry at this point, we would enable defendants to guarantee themselves a basis for a new trial merely by asserting an inability to afford counsel, or other “reasonable excuse”, and proceeding pro se at their first trial. To obviate such manipulation by ensuring a knowing, voluntary and intelligent waiver of counsel, the trial court must comply with the dictates of Rule 318. Commonwealth v. Little, 418 Pa.Super. 558, 614 A.2d 1146 (1992), appeal denied, 533 Pa. 608, 618 A.2d 399 (1992).

In Little, trial counsel filed a petition to withdraw as counsel after appellant refused to pay the requested fee. During a hearing on that petition, appellant stated that counsel’s fee was unacceptable. The trial judge granted counsel’s petition and continued appellant’s case to enable her to obtain a new attorney. Id. at 565, 614 A.2d at 1149-50. At a pre-trial conference, appellant appeared pro se, claiming that she was unable to obtain alternate counsel. The trial court again advised appellant to obtain counsel and informed her of the trial date. Before trial, the court conducted an extensive colloquy, conforming to the requirements of Rule 318, and appellant signed a written waiver. Consequently, the trial court ensured that appellant had effectuated a knowing, voluntary and intelligent waiver of counsel. Id. at 566, 614 A.2d at 1150.

Despite our review of the record certified to this court on appeal, including the notes of testimony, we have been unable to locate any pre-trial colloquy. See Commonwealth v. Monica, supra, 528 Pa. at 272-73, 597 A.2d at 603. Appellant in Monica, like the appellant in this case, applied for but was denied the assistance of a public defender because of financial ineligibility. Further, appellant in that case advised the trial court that he did not have money to pay a lawyer. Although the trial court failed to conduct an on-the-record colloquy, it allowed appellant to proceed pro se. Our Supreme Court ruled that the trial court erred in allowing appellant to proceed without first conducting a thorough on-the-record colloquy to determine whether appellant knowingly and understandingly waived his right to counsel. Id. at 274, 597 A.2d at 604.

Similarly, in Commonwealth v. Smith, 426 Pa.Super. 144, 626 A.2d 614 (1993), trial counsel sought to withdraw, citing irreconcilable differences with her client. Appellant agreed and requested a continuance to retain new counsel. In response, the trial court allowed appellant to choose between proceeding with counsel in whom he had no confidence and who had filed a petition to withdraw and proceeding pro se. Id. at 154, 626 A.2d at 619-20. Appellant explicitly stated that he did not wish to represent himself. Nevertheless, the trial court directed trial counsel to remain in the courtroom as stand-by counsel and treated appellant as though he had voluntarily waived his right to counsel. Id. at 146-47, 626 A.2d at 616. At no time did the court conduct a colloquy to inform appellant of the full consequences of waiver. A panel of this court found that the trial court had denied appellant his right to counsel by compelling him to represent himself absent a valid waiver. Id. at 154, 626 A.2d at 620.

In the instant case, the trial court claims that the following factors demonstrate appellant’s knowing, voluntary and intelligent waiver of counsel: appellant was advised of his ineligibility three times by the office of the public defender; appellant was granted two continuances but failed to seek or retain private counsel and appellant appeared for trial without counsel. Trial court opinion dated April 17, 1995 at 4-5. At no point did the trial judge elicit whether appellant was aware of the nature of the charges against him, the elements of each of those charges or the permissible range of potential sentences. Nor did the trial judge advise appellant of the dangers of waiver. We cannot agree that the factors cited by the trial court illustrate that defendant was aware of the consequences of waiving his right to counsel. Nor shall we presume a waiver from a silent record. Accordingly, we conclude that the trial court committed reversible error by allowing appellant to proceed pro se without first conducting a thorough on-the-record colloquy to ascertain whether appellant knowingly and understandingly waived his right to counsel. Because our resolution of this issue results in an order for a new trial, we need not consider appellant’s remaining claims.

Judgment of sentence is vacated and case is remanded for a new trial. Jurisdiction relinquished.

      . Appellant improperly characterizes this action as an appeal from an order denying his post-trial motions. An order denying post-sentence motions acts to finalize the judgment of sentence for purposes of appeal. Accordingly, appeal must be taken from the judgment of sentence. Commonwealth v. Chamberlain, 442 Pa.Super. 12, 658 A.2d 395 (1995).

      . 18 Pa.C.S.A. § 3502.

      . Id. § 3921.

      . Id. § 907.

      . Id. § 3304.

      . Further, we cannot agree with the trial court that our Supreme Court’s decision in Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984), denial of post-conviction relief affirmed by, 534 Pa. 483, 633 A.2d 1098 (1993) is controlling. The Court in that case held:
      [When] a criminal defendant knowingly and intelligently refuses to take steps to secure private counsel, refuses court appointed counsel until one week before trial, refuses to cooperate with appointed counsel until several days before trial and refuses to waive his right to a speedy trial in order to allow counsel additional time to prepare a defense, that defendant “relinquishes ... many of the traditional benefits associated with the right to counsel” and must be prepared to accept the consequences of his stubborn obstinance.

        Id. at 251, 484 A.2d at 1377. The defendant, in Szuchon, further hindered prosecution by misrepresenting that prison officials had denied him access to telephones, and therefore, to an attorney. Nevertheless, the trial court and appointed counsel questioned appellant Szuchon extensively and repeatedly about his comprehension of the consequences of refusing court appointed counsel and refusing to waive the right to a speedy trial. Moreover, the court informed appellant of the potential penalties for the crimes charged as well as the dangers of inadequate preparation time.


source: Caselaw Access Project

author: CIRILLO, President Judge Emeritus:

license: Public Domain

text:
    675 A.2d 740
    COMMONWEALTH of Pennsylvania v. Jason TAPPER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 29, 1996.
    Filed April 29, 1996.

      Christina A. King, Assistant Public Defender, Doylestown, for appellant.
    Alan M. Rubenstein, District Attorney, Doylestown, for Com., appellee.
    Before CIRILLO, President Judge Emeritus, and POPOVICH and OLSZEWSKI, JJ.
   CIRILLO, President Judge Emeritus:

Jason Tapper appeals from a judgment of sentence entered in the Court of Common Pleas of Bucks County. We affirm.

Tapper was arrested for animal fighting, cruelty to animals, conspiracy, and related summary offenses. A jury trial commenced, and the following evidence was adduced. On July 3, 1994, Tapper, along with his friends/co-defendants Jan Pyatt and Roy Elliot, attended a barbecue party at the home of Mary Callahan in Warminster, Bucks County. Mary Callahan and her husband Pat, owners of a 6/6 year old dalmatian named Duke, were selling their home and would not be permitted to take Duke to their new residence. They were, therefore, in search of a good home for their dog.

During the party, Tapper and Pyatt told Mrs. Callahan that they lived on a nearby farm with several acres and other animals, and would be willing to take Duke. Mrs. Callahan testified that, at the time, they seemed like nice young men and thought that, if they kept Duke, she would be close enough for visits -with the dog. Mrs. Callahan warned the young men that Duke was not especially good with children, and specifically attested that she would allow Tapper and the others to “take [Duke] for the night on the condition that I would go up the next morning and check on him.” Tapper and his cohorts agreed to this condition and, later in the afternoon, the three friends left the property with Duke and returned to the rental property shared by Tapper and Pyatt.

Denise Orsini visited Tapper’s home on the evening of the picnic; she, too, had been at the Callahan’s party. When Orsini asked how Duke was doing, Tapper told her that Duke had jumped out of the car and had run away. Orsini later phoned Mrs. Callahan to tell her of this development. Mrs. Callahan immediately called the police and went out with her husband that evening looking for Duke. The Callahans continued their search for Duke everyday for the next week, placing about 100 posters with information about the missing dog.

On July 10, 1994, Jeanette Rilling of the SPCA went to Tapper’s home after reports were made regarding a foul odor on the property. A badly decomposed body of a dead dalmatian dog was found in the field and was later identified as Duke. Tapper then admitted to killing Duke, claiming that Duke had attacked him and he was forced to kill the dog with cinder blocks.

An investigation ensued. Mike Cardell, a friend of Tapper’s, testified that he visited Tapper’s home the evening of the picnic, and that Tapper, Pyatt, Elliot, Duke and a pit bull dog went out to a field adjacent to the house. Nearly a half an hour went by before the group returned to the house; Duke was not with them. Cardell testified that Tapper returned holding a dog tail, a razor blade, and duct tape.

Brian Hattrich, who shared the house with Tapper, testified that ten minutes after the group went into the field that night he heard a dog whimpering. When Tapper returned to the house, he told Hattrich that he had cut Duke’s ears off. Hattrich also testified that Tapper returned holding a dog tail. Co-defendant Pyatt told Hattrich that the friends had returned from the party with a dog, tied it to a tree in the field, and taped the dog’s mouth shut. Pyatt also told Hattrich that his pit bull was allowed to attack Duke, and that the pit bull had actually pinned Duke.

Dr. Charles Malinauskas, a veterinarian, testified that Duke’s injuries included a severed tail, throat, and ears, and multiple skull, rib, and jaw fractures. Dr. Malinauskas opined that the tail and ears were cut off while Duke was alive.

Tapper was convicted of animal fighting, cruelty to animals, and conspiracy. He was sentenced to 18 to 36 months imprisonment. This appeal followed.

Tapper raises two issues for our consideration:

(1) Was the verdict against the weight of the evidence in that the evidence clearly establishes that the appellant was the owner of the animal?
(2) Was the verdict against the sufficiency of the evidence in that the Commonwealth failed to establish that the appellant was not the owner of the animal?

Tapper has raised the issue of the weight of the evidence for the first time on appeal. He chose not to file optional post-sentence motions pursuant to Pa.R.Crim.P. 1410, but, rather, filed a notice of appeal after sentence was imposed. The trial court, therefore, was not given an opportunity to exercise its discretion regarding whether Tapper should be awarded a new trial on the grounds that the verdict was against the weight of the evidence. In light of these facts, the Commonwealth argues that Tapper is barred from challenging the weight of the evidence. The recent law on this subject can be summarized as follows:

In Commonwealth v. Brown, 538 Pa. 410, 434-438, 648 A.2d 1177, 1189-1191 (1994), the Pennsylvania Supreme Court made clear that challenges to the weight of the evidence must first be presented to the trial court. An appellate court may only review the trial court’s exercise of discretion in granting or denying a new trial on grounds that the verdict was contrary to the weight of the evidence; it may not address “the underlying question whether the verdict is against the weight of the evidence.” Id. at 435, 648 A.2d at 1189. In so holding, the Supreme Court observed that: ‘An allegation that the verdict is against the “weight” of the evidence is a matter to be resolved by the trial court:
While there may be some legitimacy for a trial court, who [sic] has also observed the witnesses as they testified, to consider the weight of the evidence and to that extent review the jury’s determination of credibility, there is surely no justification for an appellate court, relying upon a cold record, to exercise such a function.
Commonwealth v. Farquharson, 467 Pa. 50, 59-60, 354 A.2d 545, 550 (1976).’
Id. at 437, 648 A.2d at 1190, quoting Commonwealth v. Karkaria, 533 Pa. 412, 418-419 n. 3, 625 A.2d 1167,1170 n. 3 (1993). The court in Brown further declared that:
‘Unlike the challenge of legal sufficiency of the evidence, the complaint that the verdict was against the weight of the evidence requires an assessment of the credibility of the testimony offered by the Commonwealth. It is a rule of the Commonwealth that an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the “cold record.” ’
Commonwealth v. Brown, supra at 438, 648 A.2d at 1191, quoting Commonwealth v. Nelson, 514 Pa. 262, 271 n. 3, 523 A.2d 728, 733 n. 3 (1987), cert. denied, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987) (citations omitted).

Commonwealth v. Widmer, 446 Pa.Super. 408, 420, 667 A.2d 215, 220-21 (1995) (quoting Commonwealth v. Hodge, 441 Pa.Super. 653, 659-61, 658 A.2d 386, 389 (1995) (footnote omitted)).

In light of Brown, Widmer, and Hodge, we are precluded from addressing Tapper’s first issue. By way of further explanation, this court has unequivocally stated:

[T]his Court cannot entertain, in the first instance, a request for a new trial on the 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 a 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-sentence 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.

Widmer, 446 Pa.Super. at 420, 667 A.2d at 221 (quoting Hodge, 441 Pa.Super. at 659-61, 658 A.2d at 389 (footnote omitted)). While Tapper acknowledges in his appellate brief that he is cognizant of this court’s ruling in Hodge, he nonetheless argues that we should address this issue. Specifically, he claims that present counsel was assigned to represent him fourteen days after sentencing, subsequent to the permitted time for filing post-sentence motions. We reject Tapper’s argument, as it in no way alters the fact that we cannot entertain a weight of the evidence challenge that has not been addressed by the trial court. Brown, supra; Widmer, supra; Hodge, supra.

Tapper next claims that the evidence was insufficient to sustain the verdict. In reviewing a sufficiency of the evidence claim, an appellate court must determine whether the evidence and all reasonable inferences therefrom, when viewed in the light most favorable to the verdict winner, was sufficient to enable the fact finder to find every element of the crimes charged beyond a reasonable doubt. Commonwealth v. LaCava, 542 Pa. 160, 171, 666 A.2d 221, 226 (1995); Commonwealth v. Thomas, 527 Pa. 511, 513-514, 594 A.2d 300, 301 (1991).

Specifically, Tapper challenges his conviction for cruelty to animals pursuant to 18 Pa.C.S.A. § 5511(a)(l)(i), which provides, “[a] person commits a misdemeanor of the second degree if he willfully and maliciously: Kills, maims or disfigures any domestic animal of another person____” (emphasis added). Tapper argues that the Commonwealth failed to establish that Duke belonged to “another person;” rather, Tapper claims that he was Duke’s owner, as Mrs. Callahan gave the dog to Tapper on the day of the picnic. We disagree.

We have little difficulty in finding that Mrs. Callahan was Duke’s owner at the time of the killing. Mrs. Callahan permitted Duke to spend the evening with Tapper contingent upon her inspection of the dog and the premises the following day. Upon learning of Duke’s disappearance, Mrs. Callahan immediately began a search for the dog that lasted until his body was found, one week later. Further, during cross-examination, Mrs. Callahan reiterated the fact that there was a condition attached to allowing Tapper to permanently keep Duke. She also testified that upon hearing of Duke’s disappearance she thought: “[W]hen I get [Duke] back, he’s not going back to them.” Additionally, Mrs. Callahan was asked by defense counsel if the reason for her crying when she gave Duke to Tapper was because she knew Duke would no longer be living with her. She answered: “Well, if it worked out, I knew that he [Duke] wouldn’t be.” (emphasis added).

Mrs. Callahan’s visit to Tapper’s home, the condition agreed upon between Mrs. Callahan and Tapper, had never occurred; thus, Mrs. Callahan never relinquished ownership of Duke. Viewing the evidence in the light most favorable to the Commonwealth, we find that the elements of cruelty to animals have been proven beyond a reasonable doubt, LaCava, supra; the evidence was clearly sufficient to sustain the verdict.

Affirmed.

      . We note that Tapper’s sufficiency of the evidence complaints do not apply to the felony animal fighting convictions. A defendant need not be file owner of an animal pursuant to 18 Pa.C.S.A. § 551 l(h. 1).


author: BECK, Judge:

text:
    675 A.2d 743
    COMMONWEALTH of Pennsylvania v. Phillip W. CALLOWAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 29, 1996.
    Filed April 30, 1996.

      Blanche C. Clifford, Harrisburg, for appellant.
    Michael L. Rozman, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Latisha K. Frederick, Harrisburg, for participating party.
    Before BECK, HUDOCK and BROSKY, JJ.
   BECK, Judge:

The trial court’s order on appeal, entered June 28, 1995 (hereinafter “June Order”), denied in part appellant’s motion to dismiss the four criminal counts brought against him by the Commonwealth. We find that the trial court correctly ruled that three out of four of these charges were not barred by the statutory provisions of 18 Pa.C.S. § 111, and therefore affirm the trial court’s order.

The facts and history of this case, as set forth by the trial court in its memorandum opinion, are as follows:

[O]n or about July 26-27, 1995, after George Lendh had exited his parked car, he was approached by four men, one of whom had a gun. With the gun at his back, Lendh was forced to hand over his keys and also had his wallet, a gold chain and a watch removed by the defendants. Lendh was then forced into the back seat of his car with the defendants who drove around for five minutes or so until they found a[sic] automated teller machine (ATM) where they forced Lendh to withdraw money with an ATM card the defendants had taken from his wallet. They then drove Lendh to another location where they tied him to a tree and left. Lendh was able to break free and contacted the police, whereafter the defendants were apprehended.
Defendant was ... subsequently charged with four state crimes: Count I — robbery of a motor vehicle, Count II— robbery of personal property, Count III — kidnaping [sic], and Count IV — conspiracy to commit kidnapping. Defendant was also charged in federal court with three crimes ...: Count I — conspiracy to commit carjacking, Count II— carjacking, and Count III — use of a firearm in the commission of a federal offense. On November 11, 1994, defendant pled guilty to the federal charges and received a sentence of nine years imprisonment, three years supervised release plus fines and restitution to the victim for the jewelry and cash taken during the robbery.
On January 5, 1995, defendant filed a Motion to Dismiss the state charges on the basis that further prosecution violated state law inasmuch as the federal offenses to which the defendant pled guilty were the same as the state criminal charges. 18 Pa.C.S. § 111. A hearing was held on April 27, 1995, after which an Order was issued (“April Order”) dismissing Counts I through III and taking Count TV under advisement with a directive that the parties brief the issue.
On May 10, 1995, a second Order was issued again dismissing Counts I and II (robbery of motor vehicle and robbery of personal property), but taking under advisement the decision on Counts III and IV (kidnapping and conspiracy to kidnap). This Order was officially entered on May 23, 1995 (“May Order”). On May 26, 1995, the Commonwealth filed a Motion for Reconsideration of the May Order. No action was taken on that Motion and on June 22, 1995, the Commonwealth filed an appeal from the May Order dismissing Counts I and II.
On June 28, 1995, notwithstanding the Commonwealth’s appeal, a final Order (“June Order”) was entered which disposed of all the issues presented in defendant’s Motion to Dismiss. In the June Order, I again dismissed Count I (robbery of a motor vehicle) but reversed myself as to Count II (robbery of personal property) and determined that it should not be dismissed. As to Counts III and IV, which had been taken under advisement, I decided that they too should not be dismissed.

Trial Court Op. dated August 15, 1995 at 1-3 (footnote added and footnote omitted).

Appellant appeals the court’s June order. He makes three arguments: (1) that the trial court did not have jurisdiction to enter the June Order because the Commonwealth had filed an appeal from the May Order; (2) that the trial court erred by issuing the June Order “sua sponte; ” and (3) that the trial court erred in holding that Counts II, III and IV were not barred by 18 Pa.C.S. § 111. The foregoing issues all present questions of law which, as such, are subject to plenary review. See Commonwealth v. Wetton, 405 Pa.Super. 1, 591 A.2d 1067, 1071 (1991), aff'd., 537 Pa. 100, 641 A.2d 574 (1994) (applicability of statutory bar under 18 Pa.C.S. § 111 is question of law requiring appellate court’s plenary review).

We first address appellant’s contention that the June Order should be declared a nullity because the trial court did not have jurisdiction to enter the order after the Commonwealth had filed its appeal from the May Order. Appellant relies upon Rule 1701(a) of the Pennsylvania Rules of Appellate Procedure, which states in pertinent part that “after an appeal is taken ..., the trial court ... may no longer proceed further in the matter.” Pa.R.A.P. 1701(a). We note, however, that the same rule provides the following:

After an appeal is taken ..., the trial court ... may:
(6) Proceed further in any matter in which a nonappealable interlocutory order has been entered, notwithstanding the filing of a notice of appeal or a petition for review of the order.

Pa.R.A.P. 1701(b)(6).

The May Order was nonappealable and interlocutory in light of the fact that the trial court did not decide all of the issues raised in appellant’s motion to dismiss. Rather, it dismissed Counts I and II and took the arguments regarding Counts III and IV under advisement, to be decided after further briefing by the parties. Thus, in accordance with Pa.R.A.P. 1701(b)(6), we find that the trial court' did have jurisdiction to enter the June Order.

We turn now to appellant’s second point on appeal, which we find appellant to have waived by failing to offer any support therefor in accordance with Pa.R.A.P. 2119. See Commonwealth v. Rodgers, 413 Pa.Super. 498, 605 A.2d 1228 (1992), appeal denied, 532 Pa. 655, 615 A.2d 1311 (court deemed issue waived where appellant’s brief failed to “include a pertinent discussion of the particular point raised along with citation to pertinent authorities”).

Appellant’s final contention is that under 18 Pa.C.S. § 111 the trial court improperly determined not to dismiss Counts II, III and IV. We examine whether the federal action barred state prosecution under 18 Pa.C.S. § 111, which in pertinent part provides:

When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:
(1) The first prosecution resulted in an acquittal or a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is based on the same conduct unless:
(i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil....

18 Pa.C.S. § 111(1).

In applying the foregoing statute, the courts of this Commonwealth have consistently held that there are three relevant inquiries to be made. The first inquiry is whether or not the prosecution which the Commonwealth proposes to undertake involves the same conduct for which the individual was prosecuted by the other jurisdiction. Commonwealth v. Traitz, 528 Pa. 305, 597 A.2d 1129, 1132-33 (1991); Commonwealth v. Scarfo, 416 Pa.Super. 329, 611 A.2d 242, 256 (1992), appeal denied, 535 Pa. 633, 631 A.2d 1006 (1993); Commonwealth v. Abbott, 319 Pa.Super. 479, 466 A.2d 644, 649 (1983). If the answer to this question is yes, then we must determine whether each prosecution requires proof of a fact not required by the other, and whether the law defining the Commonwealth offense is designed to prevent a substantially different harm or evil from the law defining the other jurisdiction’s offense. Scarfo, supra at 359, 611 A.2d at 257. If the Commonwealth cannot satisfy both of these requisites, then the prosecution may not proceed. Id. In interpreting 18 Pa.C.S. § 111, this court aptly stated in Abbott, supra:

It would seem that an affirmative answer to the initial inquiry lowers the bar to the subsequent prosecution and that only an affirmative response to both of the remaining inquiries can lift the bar.

Abbott, supra at 489, 466 A.2d at 649.

Accordingly, we must first decide whether Counts II, III and IV are based upon the same conduct as was appellant’s prosecution in federal court. In Commonwealth v. Mascaro, 260 Pa.Super. 420, 394 A.2d 998 (1978), this court defined “same conduct,” as “encompassing] all criminal behavior committed in support of a common and continuing scheme.” Id. at 427, 394 A.2d at 1001. The undisputed facts in this case are that both the state and federal prosecutions are predicated on the same acts, against the same victim, which were performed without interruption by appellant in the same incident. The conduct gave rise to the federal prosecution for carjacking and conspiracy to commit carjacking, and the state prosecution for robbery, kidnapping and conspiracy to kidnap.

Having concluded that the same conduct was the basis for both the federal and the proposed state prosecutions, we must now determine whether the Commonwealth met its burden for lifting the statutory bar against prosecution.

Appellant pled guilty in federal court to carjacking, as defined in 18 U.S.C. § 2119, which states:

Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so.

18 U.S.C. § 2119. Appellant also pled guilty to conspiring to commit carjacking. The Commonwealth seeks to prosecute appellant for robbery of personal property, kidnapping, and conspiracy to kidnap, none of which requires proof of appellant’s having taken the victim’s motor vehicle, by force or otherwise. Furthermore, the offenses for which appellant was prosecuted in federal court did not require proof that appellant stole any personal property from the victim, removed the victim a substantial distance from the place where he was found, or agreed with others to do so, as is required for the Commonwealth’s proposed prosecution of appellant for robbery of personal property, kidnapping and conspiracy to kidnap, respectively. Thus, we conclude that the Commonwealth has satisfied the first of the two requisites for lifting the bar against prosecution; each prosecution requires proof of a fact not required by the other.

Finally, we must determine whether the statutes at issue in the federal and state prosecutions are designed to address substantially different harms or evils. We find that they are. As this court noted in Commonwealth v. Wetton, 405 Pa.Super. 1, 591 A.2d 1067, 1071 (1991), aff'd., 537 Pa. 100, 641 A.2d 574 (1994), it is not sufficient merely to assert that both statutes are intended to prevent crime; rather, “[a]n examination of the specific harm or evil targeted by the statute must be conducted, as the evil to be deterred is one of the pivotal considerations in the ... interest analysis.” Id. at 10, 591 A.2d at 1072. The federal carjacking statute is aimed at the taking of motor vehicles from individuals by force, or agreeing with others to do so. The statutes underlying the Commonwealth’s proposed prosecution are aimed at entirely different evils: the taking of personal property (robbery), the removal of victims for enumerated criminal purposes (kidnapping), and the agreement with others to commit a kidnapping (conspiracy to kidnap). Since the federal and state statutes target substantially different evils, the Commonwealth has satisfied the final prong of 18 Pa.C.S. § 111 and may proceed with its prosecution of counts II, III, and IV.

For all of the foregoing reasons, we do not find any merit to appellant’s arguments and affirm the trial court’s order in its entirety.

Order affirmed.

      . It is well settled in Pennsylvania that a defendant is entitled to an immediate interlocutory appeal as of right from an order denying a non-frivolous motion to dismiss on state or federal double jeopardy grounds. Commonwealth v. Savage, 388 Pa.Super. 561, 566 A.2d 272, 275 (1989). The same reasoning underlying this right to appeal applies equally to an order denying a non-frivolous motion to dismiss pursuant to 18 Pa.C.S. § 111. Id. See also Commonwealth v. Breeland, 445 Pa.Super. 147, 664 A.2d 1355, 1358 n. 1 (1995) (quoting Commonwealth v. Haefner, 473 Pa. 154, 156, 373 A.2d 1094, 1095 (1977)).

      . 18 Pa.C.S. § 3702(a).

      . 18 Pa.C.S. § 3701(a)(l)(i) and (ii).

      . 18 Pa.C.S. § 2901(a)(2).

      . 18 Pa.C.S. § 903.

      . 18 U.S.C. § 371.

      . 18 U.S.C. § 2119.

      . 18 U.S.C. § 924(c)(1) and (2).

      . The record reveals that the court amended the April Order after being advised that it had incorrectly stated therein that Count III was for robbery. After the court was informed that Count III was for kidnapping, the Court decided to take Count III under advisement with Count IV.

      . Appellant filed a motion to dismiss the Commonwealth's appeal on the grounds that the May Order was nonappealable, and the Superior Court granted the motion on August 8, 1995.

      . We nevertheless note that we find no merit to appellant's contention that the trial court issued the June Order "sua sponte," nor to his position that a sua sponte order would constitute error on the part of-the trial court.

      . When a defendant has raised a non-frivolous motion to dismiss based upon 18 Pa.C.S. § 111, this court has placed the burden of proof upon the Commonwealth to prove, by a preponderance of the evidence, either that the proposed prosecution is not based upon the same conduct as the previous prosecution, or that the prosecutions each require proof of facts different from the other and are based upon statutes aimed at substantially different evils. Commonwealth v. Savage, 388 Pa.Super. 561, 566 A.2d 272 (1989).

      . "Kidnapping” is defined in 18 Pa.C.S. § 2901, as follows:
      (a) A person is guilty of kidnapping if he unlawfully removes another a substantial distance from the place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following intentions:
      (2) To facilitate commission of any felony or flight thereafter.

      . Appellant contends that the Commonwealth should not be permitted to proceed with its prosecution because his federal sentence for carjacking was enhanced on the basis of the kidnapping and robbery, and because he was ordered to pay restitution to the victim for the robbery. We first note that appellant has waived this argument because he raises it for the first time in this appeal. Even if this argument were not waived, however, our conclusions herein would not change. Appellant has offered no case law in support of his argument that sentence enhancement based upon the facts surrounding appellant's caijacking somehow satisfies the clear language of 18 Pa.C.S. § 111, nor do we find such support in the statute itself.


author: TAMILIA, Judge.

text:
    675 A.2d 749
    COMMONWEALTH of Pennsylvania v. Timothy BRYANT, Appellant.
    Superior Court of Pennsylvania.
    Argued March 27, 1996.
    Filed April 30, 1996.

      Nancy D. Wasser, Philadelphia, for appellant.
    Joseph J. Mittleman, Deputy District Attorney, Media, for Commonwealth, appellee.
    Before CAVANAUGH, TAMILIA and MONTEMURO, JJ.

       Retired Justice assigned to the Superior Court.

   TAMILIA, Judge.

Timothy Bryant appeals from the January 26, 1995 Order denying his request for expungement of his criminal record upon completion of the Accelerated Rehabilitative Disposition (ARD) program.

Appellant was arrested on February 22, 1990 and charged with theft and related offenses after he and his three co-conspirators stole two vehicles from a car dealership. Upon petition by the district attorney of Delaware County, appellant was placed in the ARD program for a period of 12 months and ordered to make restitution. Defendant successfully completed ARD on July 31, 1991. Four months later, appellant was arrested for receiving stolen property and carrying a firearm without a license. Those charges were dismissed, however, on February 28, 1992. On May 11, 1994, appellant filed a petition to expunge his criminal record. On May 20, 1994, the Commonwealth was ruled to show cause why defendant’s petition should not be granted, and a hearing was set for June 27, 1994. The Commonwealth filed its statement of reasons opposing expungement on June 23, 1994, and after oral argument and consideration of the parties’ briefs, the trial court denied defendant’s petition, reasoning the Commonwealth’s interest in preserving defendant’s criminal record outweighed defendant’s “right to be free from the harm attendant to maintenance of the criminal record.” (Slip Op., Surrick, J., 10/19/95, p. 10.)

Appellant argues the court abused its discretion by denying his petition. He also contends attorneys’ fees are appropriate due to the Commonwealth’s obdurate behavior. For the reasons which follow, we reverse the Order denying appellant’s petition, but affirm the court’s decision to deny attorneys’ fees.

Factors to be considered by a court considering expungement of a criminal record due to successful completion of ARD include the strength of the Commonwealth’s case, the Commonwealth’s reasons for wishing to maintain the record, the petitioner’s age, criminal record and employment history, the length of time which has elapsed since the crime, and the adverse consequences the petitioner may endure should his petition be denied. Commonwealth v. Cohen, 395 Pa.Super. 536, 577 A.2d 920 (1990). The policy considerations underlying ARD mandate the grant of expungement absent an overriding societal interest in retaining the arrest record. Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (1981); Cohen, supra. While arguably the Commonwealth’s case against appellant with regard to the underlying crimes was solid, we find the Commonwealth’s reasons for wanting to maintain appellant’s criminal record, which were limited to the seriousness of the auto theft and the defendant’s desire to become a police officer, do not rise to the level necessary to overcome defendant’s due process rights. Appellant successfully completed ARD in July, 1991, at age 19, and requested formal dismissal of the charges and expungement of his record in May, 1994. As stated above, charges relating to appellant’s arrest subsequent to ARD completion were dismissed. Now a 24-year old security guard, appellant is seeking full-time employment with the Philadelphia Police Department which, according to defense counsel, is fully aware of appellant’s brush with the law and his attempt to expunge his record. We find the Commonwealth has failed to set forth a compelling societal interest in retaining Bryant’s arrest record which would supersede his right to be free from the harm which necessarily accompanies possessing a criminal record.

As for an award of attorneys’ fees, we agree it is inappropriate. The Commonwealth’s conduct in opposing ex-pungement was neither arbitrary, vexatious nor in bad faith, as required by 42 Pa.C.S. § 2503.

Therefore, the Order appealed from is reversed and the matter is remanded for proceedings consistent with this Opinion.

Order reversed.

Case remanded.

Jurisdiction relinquished.

      . Although the record does not indicate why the charges were dismissed, defense counsel avers it was because the wrong individual had been arrested.


author: OLSZEWSKI, Judge:

text:
    675 A.2d 751
    Edie OWENS, Appellee, v. THE TRAVELERS INSURANCE CO., as Designee of the Pennsylvania Assigned Claims Plan, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1996.
    Filed May 1, 1996.

      Michael Senoyuit, III, Montgomeryville, for appellant.
    Nicholas J. Renzi, Philadelphia, for appellee.
    Before BECK, KELLY, and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Appellant, The Travelers Insurance Co., as designee of the Pennsylvania Assigned Claims Plan, filed the instant appeal from the Honorable Eugene Edw. J. Maier’s denial of a motion for summary judgment. Judge Maier concisely summarized the facts as follows:

This action arises from a motor vehicle accident which occurred on July 15, 1992. [Appellee], Edie Owens, claims to have been a pedestrian who was struck by an unidentified motorist near 36th and Spruce Streets in Philadelphia, Pennsylvania. [Appellee] reported the accident to her employer, the Hospital of the University of Pennsylvania who completed an “Employer’s Report of Occupation, Injury or Disease”. However, [appellee] failed to report the unidentified motor vehicle accident to the police.
[Appellee] then filed an application for benefits with [appellant] pursuant to the Pennsylvania Financial Responsibility Assigned Claims Plan. On December 6,1994, [appellant] presented to [the trial court] a Motion for Summary Judgment. The sole issue was whether [appellee] had fulfilled the reporting requirements of the Pennsylvania Motor Vehicle Financial Responsibility Law. 75 Pa.C.S.A. § 1702(3). [The trial court] found that [appellee], through her employer, had satisfied the prerequisites of 75 Pa.C.S.A. § 1702(3) thereby denying the motion.

Trial court opinion, 3/21/95 at 1-2.

Appellant asserts that the trial court erred in finding that the reporting requirements of 75 Pa.C.S.A. § 1702(3) were satisfied. Section 1702(3) of the Motor Vehicle Financial Responsibility Law (MVFRL) requires that an unidentified motor vehicle accident be reported “to the police or proper governmental authority.” 75 Pa.C.S.A § 1702(3). The trial court found that appellee reported the accident to a proper governmental authority when she reported the accident to her employer, the Hospital of the University of Pennsylvania (HUP), who in turn reported it to the Pennsylvania Department of Labor and Industry (DOLI). After reviewing the applicable statute and the relevant case law, we must disagree with the trial court’s determination.

In cases where a claimant did not notify the police, our initial inquiry is whether the claimant notified a “governmental authority.” In Gunter v. Constitution State Service Company, this Court concluded that the Philadelphia Fire and Rescue Squad was a governmental authority. 432 Pa.Super. 295, 304-08, 638 A.2d 233, 238-39, appeal denied, 539 Pa. 678, 652 A.2d 1324 (1994). We held that the term “governmental authority” must be read to encompass all government “agents” who are performing governmental “functions” at the time of the reporting. Id. Relying on Black’s Law Dictionary, we defined governmental functions as, inter alia, “functions of a municipality which are essential to its existence, in sense of serving public at large, and are to be distinguished from those which are private, which are not necessary to its existence, and which enure to advantage of its inhabitants.” Id. (quoting Black’s Law Dictionary (6th Ed.1990) at 695-96). Since the Emergency Medical Technicians (EMT’s) from the Fire and Rescue Squad were acting on behalf of the municipality and were performing essential public safety functions when they responded to the motor vehicle accident, they were included within the scope of the term “governmental authority.” Id.

Applying this analysis to the facts of the instant case, it is evident that HUP does not fall within the scope of the term “governmental authority.” HUP is a hospital affiliated with the University of Pennsylvania. At the time of the reporting, HUP was acting as a private employer who was simply being notified that an employee may have been injured during the course and scope of her employment. HUP was not performing any essential public functions. Thus, HUP is not a “governmental authority” and appellee could not have satisfied the section 1702(3) reporting requirement by informing HUP of the accident. DOLI, however, is a governmental authority, as it is a department of the executive branch of the Commonwealth of Pennsylvania. Since DOLI is a governmental authority, we must move on to the second part of our inquiry: whether DOLI is a “proper governmental authority.”

The MVFRL does not define “proper” as it is used in section 1702(3). Moreover, the only case in the Commonwealth that interprets the term is Gunter, supra. While the Gunter panel did a thorough analysis of the term “governmental authority,” it did not clearly define the qualifying adjective “proper.” Nevertheless, in concluding that the Fire and Rescue Squad was a proper governmental authority, despite the fact that the Squad is not ordinarily charged with reporting or investigating motor vehicle accidents, the Gunter panel seemed to focus on the prevention of fraud in the recovery of uninsured motorist benefits. A Fire and Rescue Squad’s immediate, on the scene reporting of injury-related information serves to prevent fraud as effectively as a report to the police. Thus, if a particular governmental authority is not one that is ordinarily charged with the reporting or investigating of motor vehicle accidents, such as the police or the Department of Transportation, we must examine whether it is in a unique position to prevent fraud as effectively as the police. See Gunter, supra.

Instantly, we conclude that DOLI was not a proper governmental authority for purposes of the section 1702(3) reporting requirements. As the department deals primarily with employment-related issues, it is not ordinarily involved in the reporting or investigating of motor vehicle accidents. Hence, we must consider whether the report to DOLI could have served to prevent fraud as effectively as a report to the police.

Unlike the Fire and Rescue Squad, DOLI is not a part of the government’s emergency response team, is not present at the scene of the accident, does not observe, first-hand, the alleged injuries, and does not make a contemporaneous report of the circumstances of both the accident and the injury. Instead, DOLI receives a simple notification, through an individual’s employer, that an employee has been injured during the course and scope of employment. See 77 P.S. § 994 (relating to an employer’s report to the Department of Labor and Industry for Worker’s Compensation purposes). This non-contemporaneous, second-hand notification simply does not act to prevent fraud in the reporting of unidentified motor vehicle accidents as effectively as a report to the police. Therefore, we must conclude that DOLI is not a proper governmental authority for purposes of section 1702(3) reporting requirements.

Since the trial court erroneously concluded that appellee satisfied the section 1702(3) reporting requirements by notifying HUP and DOLI, we must reverse the trial court’s order denying summary judgment and enter summary judgment in favor of appellant.

Order reversed. Summary judgment entered in favor of appellant. Jurisdiction relinquished.

      . While the order denying summary judgment is interlocutory, the trial court certified it for review and this Court, on April 10, 1995, granted permission to appeal. See 42 Pa.C.S.A. § 702(b).


author: TAMILIA, Judge:

text:
    675 A.2d 753
    David E. MOLLANDER and Stacey J. Mollander, Appellants, v. Regina M. CHIODO. David E. MOLLANDER and Stacey J. Mollander v. Regina M. CHIODO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 10, 1996.
    Filed May 8, 1996.

      Lisa C. Coppolo, St. Marys, for Mollander.
    Anthony V. Clarke, Olean, NY, for Chiodo.
    Before TAMILIA, FORD ELLIOTT and EATON, JJ.
   TAMILIA, Judge:

David E. and Stacey J. Mollander, prospective adoptive parents, appeal from the April 19, 1995 Order awarding primary legal and physical custody of child M.C., born April 4, 1992, to appellee/mother, and partial physical custody to appellants, as the parties may agree. Recently, this Court, in Vicki N. v. Josephine N., 437 Pa.Super. 166, 649 A.2d 709 (1994), set forth the appropriate standards when reviewing a custody dispute involving a parent and third party.

The cases are legion in this Commonwealth that the paramount concern in issues of child custody is the best interest of the child, based on all factors which legitimately have an effect on the child’s physical, intellectual, moral and spiritual well-being. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992); Sawko v. Sawko, 425 Pa.Super. 450, 625 A.2d 692 (1993).
On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the factfinding function of the trial court in order to substitute our judgment for that of the trial court. Rather, we are bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. See Karis v. Karis, 518 Pa. 601, 608, 544 A.2d 1328, 1332 (1988); Lombardo v. Lombardo, 515 Pa. 139, 147-48, 527 A.2d 525, 529 (1987); Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 236-37, 478 A.2d 800, 805-06 (1984). Zummo v. Zummo, 394 Pa.Super. 30, 53-55, 574 A.2d 1130, 1142 (1990).
In determining the appropriate standard for adjudication of custody disputes between a parent or parents and a third party, our Supreme Court adopted the carefully fashioned principles set forth by this Court in In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980).
In such cases,
The parties do not start out even; the parents have a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side. [Hernandez ] at 286, 376 A.2d at 654 (footnote omitted).
We agree that this approach is appropriate. Clearly these principles do not preclude an award of custody to the non-parent. Rather they simply instruct the hearing judge that the non-parent bears the burden of production and the burden of persuasion and that the non-parent’s burden is heavy.
Id. at 367-369, 416 A.2d at 514. The Supreme Court soon thereafter reiterated the standard in such cases was
not to be construed as precluding a custody award to a non-parent, absent a demonstration of the parent’s dereliction. We again emphasize that the standard seeks only to stress the importance of parenthood as a factor in determining the best interests of the child. However, other factors which have significant impact on the well-being of the child can justify a finding in favor of the non-parent, even though the parent has not been shown to have been unfit.
Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 328-329, 421 A.2d 157, 161 (1980).
Finally, this Court spoke again, enumerating the considerations which weigh against the elevation of parenthood above all other factors in custody determinations.
First, although parenthood is a highly important factor, it should not be accorded determinative weight in our decision. Other factors, like the value of stability, are also to be accorded great weight. Indeed, in Ellerbe itself the Supreme Court affirmed the trial court’s grant of custody to grandparents over a parent of the subject child for the very reason that the child had developed a stable relationship with the grandparents and had a stable environment with them. The same basic situation was presented in Albright, and once again the grandparents were given custody. Second, the Hernandez standard is first and foremost an allocation of the burden of proof to the third parties, but it does not impose on them the burden of showing that the parent is unfit. Thus, the issue centers on the child, and not on the parent.
Snarski v. Krincek, 372 Pa.Super. 58, 76-78, 538 A.2d 1348, 1358 (1988).

Vicki N., supra at 168-170, 649 A.2d at 710-711.

Prior to addressing the custody dispute, we shall first review mother’s cross-appeal claiming appellants lacked standing to seek custody. According to the record, in July of 1992, mother, then 17 and unmarried, placed her three-month old daughter with appellants. Appellants obtained physical custody of M.C. on July 14, 1992 and filed a report of intention to adopt on July 29, 1992. On March 23, 1993, appellants filed a petition for adoption, to which was attached mother’s consent to adoption dated July 28, 1992. At this point, mother returned to Florida, her home state. Subsequently, mother returned to Pennsylvania and filed a motion to revoke her consent, which the trial court granted by Order of May 24, 1993. On June 11, 1993, mother filed a petition for a hearing to dismiss appellants’ adoption proceedings and to regain custody of M.C. On July 19, 1993, appellants filed the present custody complaint in which they claimed to stand “in loco parentis” to M.C.

Mother claims, first, she lacked the capacity for a proper assignment of custody because she was a minor, appellants and their extended family had exerted undue influence and pressure on her to sign the consent, and she was in a state of extreme emotional distress due to the recent death of her father. As such, appellants attained “in loco parentis” status under improper circumstances and thus do not have standing to pursue the matter. Mother also claims, in the alternative, that appellants only obtained “in loco parentis” status to the extent they could pursue involuntary termination of parental rights during the period when the adoption was pending. Once the consent to said adoption properly was withdrawn, this status ended.

After our thorough review of the record, we find appellants achieved loco parentis status and have standing to challenge the custody of M.C.

The phrase “in loco parentis” refers to a person who puts himself in the situation of assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of “in loco parentis” embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties.

Cardamone v. Elshoff, 442 Pa.Super. 263, 659 A.2d 575 (1995).

Initially, we find no merit to mother’s contention she was coerced into signing the adoption agreement and she was under extreme emotional distress due to the death of her father, therefore appellants achieved in loco parentis status as the result of improper circumstances. Rather, the trial court, responding to these alleged improper circumstances, noted that “there has been a great deal of testimony under the circumstances of which [M.C.] was placed with the Hollanders.” (N.T., 4/12/95, pp. 271-272.) The court continued, “I’m not persuaded and I do not think that circumstances were such that there was a conspiracy or that anyone acted in bad faith or attempted to steal or appropriate this child. It appears to me that the parties, everyone involved, was acting with good intention, I think motivated by some legitimate concern for [M.C.] given the circumstances that Regina was in at the time.” Id. As for mother’s status as a minor, it is an unfortunate truth that many adoption-related cases entail a great deal of emotional distress for the biological mother and, many times, the biological parent is a minor. This does not, however, negate the actions of the parties who assume parental responsibilities and obligations. Here, both parties agree mother had little or no contact with the child from July of 1992 until she returned to Pennsylvania in March of 1993 during which time appellants were the primary caretakers of M.C. Furthermore, from March, 1993 until the present Order was entered on April 19, 1995, appellants continued to be the primary caretakers of M.C. with mother exercising continued visitation and partial physical custody of M.C. Accordingly, we find the trial court did not err in finding appellants achieved in loco parentis status.

Next, we find appellants maintained “in loco parentis” status after mother revoked her consent to adoption and thus have standing to seek custody, and in support of this decision rely on our decision in In Re: Baby Boy S., 420 Pa.Super. 37, 615 A.2d 1355 (1991), aff'd Per Curiam, 540 Pa. 302, 657 A.2d 484 (1995). As in the case here, the mother in Baby Boy S. was a teenage girl who gave birth to a child out of wedlock, the relationship which produced the child had been superficial and of short duration, and the mother’s family, which the court termed dysfunctional, was unable to offer her assistance. After giving birth, the mother moved in with a woman who had opened her home as a shelter for abused and neglected children and teenage unwed mothers, and shortly thereafter gave custody of her child to prospective adoptive parents, after having executed an entrustment agreement whereby the prospective adoptive parents agreed to return the child if the mother changed her mind. After the prospective adoptive parents filed a notice of intention to adopt, the mother revoked her consent and demanded the return of the child. The prospective adoptive parents then filed a Complaint for Custody, and petitioned for termination of the mother’s parental rights.

The biological mother claimed that the prospective adoptive parents lacked standing to proceed with a termination action on the basis that no blood relationship existed between the third parties and the child, they were never granted custody by the court, and the mother revoked the entrustment agreement. In rejecting the mother’s argument, this Court stated:

Appellant’s revocation of the entrustment agreement, despite the fact that it could by statute occur at any time prior to entry of a final decree of adoption, nevertheless operated ás an automatic eraser of standing no more than does any other revocation of consent to placement of the child out of the natural parent’s control. For example, a temporary placement of a child in foster care is not automatically ended by the natural parent’s attempt to retrieve the child, nor does the attempt deprive the agency to which the child was surrendered of the standing to contest the retrieval.
Appellant would have us believe that upon revocation of consent by the natural mother, the adoptive parents are faced with no option other than returning the child, and that with loss of physical custody standing is also compromised. However, this court has concluded, albeit in a different context, that even removal of a child from the home of prospective adoptive parents does not preclude their protesting such removal, or from prosecuting a previously filed petition to adopt. Standing to seek termination of parental rights has also been found in prospective adoptive parents who received custody from an agency, and where the custodians of the child received him from relatives of the mother, with no agency acting as intermediary. We have also ruled, in a case having certain features in common with this one, that where the natural mother has revoked her relinquishment of parental rights shortly after the child has been received by the adoptive parents, they can return the child, or, “if they ha[ve] any basis for doing so, [can] file[] a petition under the Adoption Act asking the court to terminate [the mother’s] parental rights involuntarily.”

Id. at 43, 615 A.2d at 1357-1358 (citations omitted) (footnote omitted).

Furthermore, we find mother’s reliance upon T.J.B. v. E.C., 438 Pa.Super. 529, 652 A.2d 936 (1995), misplaced as her revocation of the consent for adoption in no way altered appellants’ in loco parentis status, rather, it merely terminated the adoption proceeding. The trial court correctly distinguished T.J.B. from the present case as the prospective adoptive parents in T.J.B. did not file a complaint in custody but rather proceeded under the Adoption Act and its statutory requirements. Finding appellants have standing to pursue custody, we shall now turn to their contention the trial court’s award of primary physical and legal custody to appellee was manifestly unreasonable. Specifically, appellants contend the trial judge placed undue weight on the status of appellee as a parent, while ignoring the best interests of the child.

The trial court, in awarding custody to appellee, considered the following:

I have considerable concerns about Regina. I don’t mean to be over familiar, Miss Chiodo. In terms of psychological testimony from Dennis Vaughn and of the report of Doctor Addis indicating that the relationship between Miss Chiodo and [M.C.] may be one of sisters, sister [rather] than parent to daughter. I have some concerns about the concerns Doctor Addis expresses about the validity of the psychological profile. I think Mr. Vaughn also indicates that. I have some concerns about your maturity and the fact that you are not steadily employed and on a career path. Having said that, on the plus side I think there’s also been abundant evidence that you are motivated by care and concern for [M.C.] and your genuine love for her. You have provided apparently a place for her to live which is clean and safe. You have undertaken efforts to educate yourself about parenting skills and the testimony of Miss Strayer that she has observed you, I believe ten times, in the apartment and other times at the Family Center and parenting appears to be appropriate and [M.C.] appears to be safe and comfortable in your care. In addition, although there are concerns that I have expressed about your ability, it also appears that support services are in place to assist you in your care of [M.C.] Weighing all of this it is my opinion that the law of Pennsylvania requires that primary physical custody by awarded to Regina Chiodo.

(N.T. at 273-274.)

After our review of the transcripts and analysis set forth by the trial court, we find the court carefully balanced all of the relevant factors and weighed the evidence presented pursuant to the standards set forth in Vicki N., supra. Accordingly, we do not find the trial court’s award of custody manifestly unreasonable.

Order affirmed.

      . In Rowles v. Rowles, 542 Pa. 443, 668 A.2d 126 (1995), the Pennsylvania Supreme Court recently considered the standard to be applied in deciding a custody dispute between parents and third parties. While the Court unanimously reversed the custody determination, the' Court was divided three-three on reconsideration of the presumption of parents' prima facie right to custody. Justice Flaherty, joined by Justices Nix and Castile, would have “abandon[ed] the presumption that a parent has a prima facie right to custody as against third parties," and instead "mandat[ed] that custody be determined by a preponderance of evidence, weighing parenthood as a strong factor for consideration.” Id. at 444, 668 A.2d at 128 (emphasis in original).
      The Concurring Opinion by Justice Montemuro, however, found “no particular advantage in dispensing with the ‘presumption’ " and found “no reason to alter a process which already takes into proper account both the ideal and the reality of parental behavior." Id. at 452, 668 A.2d at 130-131.
      While we are not bound to follow the plurality decision in Rowles, we point out that changing the applicable standard in this matter would not change the result.
      We are also cognizant of this Court's decision in Campbell v. Campbell, 448 Pa.Super. 533, 672 A.2d 835 (1996), wherein the possible trend toward the elimination of a natural parent’s presumptive right to custody was recognized.


author: MONTEMURO, Retired Justice, Assigned.

text:
    675 A.2d 1256
    REDEVELOPMENT AUTHORITY OF the CITY OF PHILADELPHIA, Appellant v. INSURANCE COMPANY OF NORTH AMERICA and Cigna Property and Casualty Companies, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1996.
    Filed March 26, 1996.
    Reargument Denied June 4, 1996.

      Robert J. Sugarman, Philadelphia, for appellant.
    E. Douglas Sederholm, Philadelphia, for appellees.
    Before KELLY and POPOVICH, JJ., and MONTEMURO, Retired Justice, Assigned.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Retired Justice, Assigned.

Appellant Redevelopment Authority of the City of Philadelphia (RDA) initiated this declaratory judgment action in the Court of Common Pleas of Philadelphia County, seeking a determination of whether Appellee Insurance Company of North America (INA) has a duty to defend RDA in an action instituted by the University City Science Center (Science Center). The trial court denied RDA’s Motion for Summary Judgment and granted INA’s Cross-Motion for Summary Judgment. RDA appealed.

An insurer’s duty to defend is distinct from its duty to provide coverage. Erie Ins. Exch. v. Transamerica Ins. Co., 516 Pa. 574, 583, 533 A.2d 1363, 1368 (1987). In a typical liability policy, the insurer agrees to defend the insured against any suits arising under the policy, even if a suit is groundless, false or fraudulent. Id. Accordingly, if a complaint filed against an insured may potentially come within the coverage of the policy, the insurer has the duty to defend, until the claim is confined to a recovery that is not covered under the policy. Id.

In its complaint, Science Center alleged that in 1967, RDA acquired the property in issue through condemnation and that in 1967, RDA entered into a redevelopment agreement with Science Center. It also alleged that RDA leased the property to Amoco Oil Company (Amoco) for the operation of a service station from 1967 until sometime prior to June, 1977, at which time Amoco relinquished possession and control of the property to RDA. Science Center further alleged that in June, 1977, RDA and/or its agent performed a partial demolition of the service station, during which petroleum products and wastes were released into the property. Finally, Science Center alleged that after obtaining legal title in 1985, it had to remove and remediate the contamination, so that it could redevelop the property, fulfill its obligations under state and local law, and prevent future harm to the public health and safety.

On appeal, RDA seeks a review of the trial court’s determination that INA does not have a duty to defend RDA in the Science Center litigation, based on its interpretation that the policy does not contain separate and distinct demolition liability insurance and that the claims in the Science Center complaint fell within the “owned property exclusion” to the policy.

The principles governing the interpretation of insurance contracts are well settled. The court is to ascertain the intent of the parties from the language of the document. Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). Where a provision of a policy is ambiguous, it should be construed against the insurer, as the drafter of the document. Id. However, if the language is clear and unambiguous, the court must give effect to its plain and ordinary meaning. Id.

At issue in this action is the interpretation of several provisions in the insurance policy issued by INA to RDA for the term of January 1, 1977 to January 1, 1978. The Declarations page of this policy identified RDA as the named insured. It also stated that coverages were limited to those that were indicated and were subject to all of the terms of the policy. The Coverage Parts section indicated that INA would provide “Owners’, Landlords’ and Tenants’ Liability Insurance” (OLT-LI). This included a subheading for “Structural Alterations, New Construction, Demolition” coverage, which was indented immediately below the provision for OLTLI.

On the next page, the policy contained OLTLI Additional Declarations. It consisted of a schedule entitled “COVERAGE FOR DESIGNATED PREMISES AND RELATED OPERATIONS IN PROGRESS INCLUDING STRUCTURAL ALTERATIONS, NEW CONSTRUCTION AND DEMOLITION.” Within the section relating to structural alterations, new construction and demolition, the policy indicated coverage for the specific hazards of “Wrecking” and “Construction Operation Owner.”

The policy also enumerated several exclusions to coverage. The relevant exclusions are the “pollution exclusion,” the “owned property exclusion,” and the “alienated property exclusion.” The policy specifically provided the following:

This insurance does not apply:
(f) to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon the land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.
(k) to property damage to
(1) property owned or occupied by or rented to the Insured,
(2) property used by the Insured, or
(3) property in the care, custody or control of the Insured or as to which the Insured is for any purpose exercising physical control.
(l) to property damage to premises alienated by the Named Insured arising out of such premises or any part thereof.

Thus, it would appear from the language of the document, coupled with the format of the policy, that ‘Wrecking” and “Construction Operation Owner” coverage is encompassed within “Structural Alteration, New Construction, Demolition” coverage, which in turn is a part of the overall OLTLI. Accordingly, the trial court did not err in its determination of this issue. Therefore, we must now consider whether any of the relevant exclusions set forth in the policy apply, thereby precluding coverage.

As the trial court concluded that the claims asserted by Science Center fell within the “owned property exclusion,” thereby precluding recovery by RDA, we will review this provision first.

RDA contends that Pennsylvania law precludes denial of coverage under an owned property exclusion if there is a threat of damage to third parties, if the clean-up is legally required, or if the pollution is a threat to public health and safety. Furthermore, RDA contends that it was not the owner, nor was it in control of the property at the time the demolition occurred; therefore, the owned property exclusion is not applicable.

In Leebov v. United States Fidelity and Guar. Co., 401 Pa. 477, 165 A.2d 82 (1960), an insured purchased a contractor’s liability policy. Id. at 478, 165 A.2d at 83. When a landslide occurred during the course of excavation work, the insured took measures to arrest the landslide and prevent further damage. Id. at 479-80, 165 A.2d at 83. The Court held that the insurer was obligated to pay for the preventative measures taken by the insured. Id. at 481, 165 A.2d at 84.

In Aronson Assoc., Inc. v. Pennsylvania Nat’l Mut. Cas. Ins. Co., 14 Pa.D. & C.3d 1 (Dauphin Co. 1977), aff'd per curiam, 272 Pa.Super. 606, 422 A.2d 689 (1979), the insured was covered under “General-Automobile” and “Commercial Umbrella” liability policies. Id. at 4. Both of the policies contained pollution and owned property exclusions. Id. at 4-5. The insured filed a claim seeking reimbursement for expenses incurred, when it undertook measures to prevent contamination of water supplies of neighboring properties. Id. at 4. The insurer denied coverage, stating that the leakage was confined to premises in the insured’s control. Id. The court found that the owned property exclusion did not apply, as the streams and pools under the insured’s land constituted waters of the Commonwealth. Id. at 9. Furthermore, the court noted that the insured did not act as a mere volunteer when it undertook preventive measures, rather the insured acted pursuant to the advisement of the Department of Environmental Resources and its obligations under the Clean Streams Law. Id.

In Lehigh Elec. & Eng’g Co. v. Selected Risks Ins. Co., 30 Pa.D. & C.3d 120 (Luzerne Co. 1982), the insured was covered by a general liability insurance policy, Id. at 120, containing both pollution and owned property exclusions. Id. at 122-23. The insured filed a claim under the policy, seeking to recover amounts expended to prevent damage to adjoining properties due to a PCB spill. Id. at 127. The court found that the owned property exclusion only applied to a situation where the damage was limited to the premises owned or leased by the insured, and that it did not exclude coverage where preventative measures were taken due to a concern for the imminent risk of substantial harm to the property of others. Id. at 128. Ultimately, the court concluded that the determination of whether there was an imminent risk of substantial harm required the presentation of factual evidence, which it did not have before it. Id. at 127, 129. Accordingly, the court denied the insurer’s preliminary objections. Id. at 130.

In this case, it is clear that Science Center’s claim that RDA is primarily liable under state and local law for the clean up of the property falls squarely within the purview of the policy section dealing with coverage. However, the legal obligation to clean up the property does not, in and of itself, overcome the exclusions for owned property. There must also be an imminent threat of substantial harm to the property of others. However, as in Lehigh, the facts alleged in the Science Center complaint are insufficient to make this determination. As such, INA’s motion for summary judgment should not have been granted on this basis.

Although not explicitly dealt with by the trial court, our analysis must continue with a review of the other exclusions raised by INA as a defense to the instant action. If coverage is precluded by one of these exclusions, the grant of INA’s motion for summary judgment may still be upheld. Accordingly, we turn to the pollution exclusion.

In Techalloy Co. v. Reliance Ins. Co., 338 Pa.Super. 1, 487 A.2d 820 (1984), the Court held that the insurer did not have a duty to defend, where the allegations in the complaint and the facts in the record established that there was regular or sporadic discharge over a period of twenty-five years, thereby negating any potential for finding a sudden event. Id. at 15, 487 A.2d at 827-28.

In Centennial Ins. Co. v. Lumbermens Mut. Cas. Co., 677 F.Supp. 342 (E.D.Pa.1987), the Court found that the insured’s waste was released on the site on numerous occasions over a thirteen month period. Id. at 348. Accordingly, it held that the continuous nature of the waste disposal precluded coverage, because the discharge was not sudden. Id. at 349.

In this case, Science Center alleged in its complaint that the partial demolition instigated the discharge of the pollution, but that it continued over a period of nearly eleven years. Clearly, this situation is analogous to those in Techalloy and Centennial and falls squarely within the policy exclusion for gradual pollution damage. Therefore, we conclude that INA does not have a duty to defend RDA in the Science Center litigation.

Accordingly, based on the reasoning set forth above, the order of the Court of Common Pleas of Philadelphia County is hereby affirmed.

      . In this case, the insurance policy provided, in relevant part:
      The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages ... to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or properly damage, even if any of the allegations of the suit are groundless, false or fraudulent ... but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company’s liability has been exhausted by payment of judgments or settlements.

      . This agreement was amended and extended between August 17, 1970, and December 23, 1985; but it was not materially altered so as to affect this litigation.

      . As we have found that coverage would have been precluded under the pollution exclusion, it is unnecessary to discuss the applicability of the alienated property exclusion.