author: CAVANAUGH, Judge: SPAETH, Judge,

text:
    442 A.2d 265
    The FIDELITY BANK, v. S. Marshall GORSON, Claire G. Axelrod and Leonard Axelrod, Executors of the Estate of Joseph S. Gorson, Deceased, Harry F. Glazar and S. Marshall Gorson, Individually and t/a Gorson Enterprises, a Pennsylvania Limited Partnership. Appeal of Harry F. GLAZAR. The FIDELITY BANK, v. S. Marshall GORSON, Claire G. Axelrod and Leonard Axelrod, Executors of the Estate of Joseph S. Gorson, Deceased, Harry F. Glazar and S. Mitchell Gorson, Individually and t/a Gorson Enterprises, a Pennsylvania Limited Partnership. Appeal of S. Marshall GORSON, Claire G. Axelrod and Leonard Axelrod, Executors of the Estate of Joseph S. Gorson, Deceased. The FIDELITY BANK, Appellant, v. S. Marshall GORSON, Claire G. Axelrod and Leonard Axelrod, Executors of the Estate of Joseph S. Gorson, Deceased, Harry F. Glazar and S. Marshall Gorson, Individually and t/a Gorson Enterprises, a Pennsylvania Limited Partnership.

      Superior Court of Pennsylvania.
    Argued May 6, 1981.
    Filed Feb. 26, 1982.

      Walter W. Rabin, Philadelphia, for appellants (at Nos. 1885 & 1958) and for appellees (at No. 2066).
    Marc J. Sonnenfeld, Philadelphia, for Fidelity, appellant (at No. 2066) and for appellee (at Nos. 1885 & 1958).
    Before SPAETH, CAVANAUGH and LIPEZ, JJ.
   CAVANAUGH, Judge:

These cases involve appeals from court orders upon petitions to open and strike judgments which were entered upon a promissory note by The Fidelity Bank against S. Marshall Gorson, The Estate of Joseph N. Gorson and Harry F. Glazer, individually and trading as Gorson Enterprises. The note was an unsecured demand note in the amount of three million dollars dated May 23, 1978. It contained a provision empowering Fidelity to confess judgment against the maker at any time before or after maturity. A confession of judgment was entered on the note pursuant to a complaint filed in the Common Pleas Court of Philadelphia County on January 11, 1980. S. Marshall Gorson and Glazer filed petitions to open the confessed judgments. Gorson and the executors of the Estate of Joseph N. Gorson, who had been a maker of the note but had deceased, filed petitions to strike the judgment. The court opened the judgment as to S. Marshall Gorson and denied the petitions filed on behalf of Glazer and the Estate of Joseph N. Gorson. Fidelity has appealed the opening of the S. Marshall Gorson judgment and Glazer and the Gorson Estate have appealed from the order denying their petitions. The three appeals have been consolidated and Fidelity has been designated appellant pursuant to Pa.R.A.P. 2136.

I

Fidelity v. S. Marshall Gorson

After the execution of the note and as a result of certain disputes which had arisen with Fidelity, S. Marshall Gorson entered into negotiations and eventually reached a supplemental agreement with the bank dated October 23, 1979. This agreement contained the following provision relevant to the present dispute:

Gorson (together with others) owes Bank $3,000,000 on a demand basis. Bank agrees not to demand any payment of principal from Gorson for a period of one year from the date hereof, except upon a default in payment of interest by Gorson during that period. Bank agrees that no payment of interest shall be due or payable for a period of sixty days from the date hereof. Thereafter, interest shall be payable at the same rate and at the same intervals as heretofore. Interest which has accrued during the sixty-day period shall become due upon maturity of the note. (Emphasis added).

Following entry of the judgment Fidelity did not seek to execute upon the judgment or obtain payment of the principal. The judgment was entered, said the bank, only for purposes of security. Gorson, on the other hand, argued that under the October supplemental agreement Fidelity was entitled to take action upon the note only in the event that interest was not paid, an event which had not occurred. Thus the issue is whether under the parties’ agreement the bank had the right to enter judgment solely for the purpose of creating a lien for security. The lower court found that the entry of judgment on the demand note was in fact a “demand” in contravention to the above quoted provision of the agreement between the parties which prohibited for one year any demand for payment of principal. The parties are not in disagreement that under Pennsylvania law a judgment note may ordinarily be employed as a security device and that the judgment may be entered at any time. An early Pennsylvania case recognized the general right to employ a note as security. The court stated:

The difficulty in the view of the appellee, and apparently of the learned court below, is in failing to distinguish between the present right of the plaintiff to his judgment as security for a debt payable in the future, and the right to execution or satisfaction on a debt presently due. As security, the creditor has a right to as large collateral, and as many different forms of it, as the parties chose to contract for. That is a matter with which the court cannot interfere. But the enforcement of satisfaction, by execution or otherwise, is a matter to be governed by the rights and equities of the parties, and comes within the jurisdiction of the court. In the present case the creditor did nothing more than enter up his judgment on the bond, as part of the security agreed on. In so doing he was within his strict legal rights, and the court had no authority to interfere with his action.

Integrity Title Insurance, Trust & Safe Deposit Company v. Rau, 153 Pa. 488, 491-92, 26 A. 220 (1893).

The right to enter judgment on a note has been stated to be present whenever the note is silent as to when judgment may be taken. Triangle Building Supplies & Lumber Company v. Zerman, 242 Pa.Super. 315, 363 A.2d 1287 (1976). See also General Electric Credit Corporation v. Slawek, 269 Pa.Super. 171, 409 A.2d 420 (1979). The provision in the October agreement is that “[the] Bank agrees not to demand any payment of principal from Gorson for a period of one year from date hereof, except upon a default in payment of interest by Gorson during that period.” (emphasis added). Since there was no execution, or threat of execution upon the judgment, the act of confessing the judgment was not a demand under a fair reading of this provision. The provision simply insulates Gorson from the obligation to make any payment of the principal sum for a period of one year so long as interest payments are made. The lower court has relied upon two cases in concluding that the entry of judgment was prohibited by the conditional “demand” language of the October agreement. In Better Bilt Door Co. v. Oates, 165 Pa.Super. 465, 69 A.2d 425 (1949), the entry of judgment was held to constitute a sufficient demand to initiate the payment of interest under a note which required a demand before interest became due. In Dominion Trust Co. v. Hildner, 243 Pa. 253, 90 A. 69 (1914), it was held that entry of judgment was sufficient demand so as to negate the need for a prior demand before instituting suit on a note. We think that these cases are not inapposite since they represent a reasonable interpretation of the intent of the parties. Likewise, in this case we conclude that it would unreasonably strain the language of the October agreement to interpret it as precluding the entry of judgment for security. The parties in reaching the terms of the negotiated October agreement could have altered the rights under the original note by prohibiting the entry of judgment on the note by so providing, but they failed to do so. We disagree with the lower court which concluded that entry of judgment was violative of the terms of the October agreement. The order of the court opening the judgment against S. Marshall Gorson is reversed and judgment is reinstated.

II

Fidelity v. Estate of Joseph N. Gorson, Deceased

Joseph N. Gorson was one of the makers of the judgment note dated May 23, 1978. He died on February 4, 1979. The Gorson Estate was not a party to the October 1979 agreement discussed in the case of S. Marshall Gorson, supra. Judgment was entered against the Estate on January 11, 1980. This appeal is from the refusal of the lower court to strike judgment on a demand note after the death of the maker. On close analysis we are unable to accept Fidelity’s conclusion that the cases distinguish between situations where the right to confess judgment is contingent upon a default which occurs after the maker’s death, and the right to enter judgment on a note (as here) not contingent upon a default, and that they permit the entry of judgment in the latter situation. A reading of the cases does not make such a distinction cognizable under Pennsylvania law. Rather, the cases indicate that the maker’s demise terminates the warrant of attorney to confess judgment. First Federal Savings and Loan Association v. Porter, 408 Pa. 236, 183 A.2d 318 (1962). It is true that the early case of Webb v. Wiltbank, 1 Clark 324, 2 Pa.L.J. 303 (1842) is cited by the lower court as support for the principle that the death of the maker does not void the warrant to confess. However, this authority is merely a brief summary of a lower court decision and in light of later pronouncements by the Pennsylvania Supreme Court is of doubtful authority.

It is also true that the validity of the “death voids warranty” principle has been questioned. In Brennan v. Ennis, 219 Pa.Super. 291, 280 A.2d 605 (1971), the court stated:

Cases citing the general rule that judgment cannot be entered by confession after the maker’s death have done so without discussion of any underlying rationale. Stucker v. Shumaker, 290 Pa. 348, 351, 139 A. 114 (1927); First Fed. Savings and Loan Ass’n of Green County v. Porter, 408 Pa. 236, 241, 183 A.2d 318 (1962); Kummerle v. Cain, [82 Pa.Super. 528] supra; Kingston Nat. Bk. v. Walters et ux., supra. Kummerle v. Cain, [163 Pa.Super. 624, 63 A.2d 380] supra (1924), is the latest Pennsylvania appellate case actually implementing the rule, and recent cases have placed possible reasons for the rule in question. See Mid-City Federal Savings and Loan Ass’n of Phila. v. Allen, 413 Pa. 174, 196 A.2d 294 (1964); Chaniewicz v. Chaniewicz, 214 Pa.Super. 294, 257 A.2d 605 (1969); Restatement of Agency 2d, §§ 138, 139(l)(d); Annot., 44 A.L.R. 1309, 1311 et seq.

219 Pa.Super. at 294 n.1, 280 A.2d at 606 n.1.

Indeed, in Mid-City Federal cited by the Brennan decision’ as one of the cases questioning the authority of the no entry of judgment after the maker’s death line of cases, Justice Eagen wrote in a case involving mental incompetency of the maker:

A power of attorney to confess judgment for a proper consideration is security to the creditor, is coupled with an interest and is irrevocable. The entry of the judgment is not a new act of the debtor, but is a legal result beyond his control. Lunacy will not revoke a power of attorney to confess judgment, which was valid when executed.

413 Pa. at 175, 196 A.2d at 294 (citations omitted, emphasis added).

From this it is argued that the proper rule is that an irrevocable power which was validly granted and which requires no further occurrence to become operative does not terminate upon the grantor’s death or incompetence. It is contended that while the authority in a note that permits confession of judgment after a default might expire on the death of the maker, the authority in a note which, as here, permits the entry of judgment at any time does not. The other case cited by Brennan as questioning the rule, Chaniewicz, involves the post death entry of a judgment on a support order which had been fully litigated and had fixed the decedent’s obligations prior to his death.

Despite the report of the early Wiltbank case and the question raised in Brennan we hold that it is the law of Pennsylvania that the death of the maker revokes the warrant to confess judgment even for purposes of security and even if the warrant is not contingent upon a default under the obligation. In so holding we are persuaded by the following line of cases which support our conclusion.

In Lanning v. Pawson, 38 Pa. 480, 486 (1861), it was held that:

It was manifestly very proper ... to strike off the judgment that had been entered on the warrant of attorney, on the fact being found that the defendant was dead before it was entered.

In Kummerle v. Cain, 82 Pa.Super. 528, 529 (1924), the court stated:

The authorities in this state are to the effect that a judgment entered by confession on the authority accompanying a simple promise to pay money, after the death of the promisor and without an action brought in the lifetime of such party is irregular and will be vacated [on application].

In Stucker v. Shumaker, 290 Pa. 348, 351, 139 A. 114 (1927) it was stated that:

The warrant to confess . . . lost its efficacy when the maker died.

In Kingston National Bank v. Walters, 163 Pa.Super. 624, 626, 63 A.2d 380, 381 (1949) it was held that:

It is the rule that a judgment entered by confession after the death of the maker will be stricken off.

See also: First Federal Savings & Loan Association v. Porter, supra; Ehnes v. Kissinger, 364 Pa. 334, 72 A.2d 65 (1950); Shuchman, Judgment Notes in Pennsylvania, § 23.1, p. 83 (1961). Nor can we accept Fidelity’s claim that even if the death of the maker prevents the holder from executing on the note, that entry of judgment for security purposes only is permissible. We do not find this distinction to be supported by the cases. Rather, the language of our Supreme Court is absolute. In Strucker v. Shumaker, supra, the court stated “the warrant to confess . . . lost its efficiency when the maker died.” And in First Federal Savings and Loan, supra, it was stated at page 241 that: “[the maker’s] demise automatically terminated the warrant of attorney to confess judgment.” The order of the lower court is reversed and the judgment entered in favor of Fidelity Bank against the Estate of Joseph N. Gorson, Deceased, is ordered stricken.

Ill

Fidelity v. Harry R. Glazer

The only argument made on behalf of Glazer is that the lower court erred in not permitting the opening of the judgment since Glazer is a third party beneficiary of the October agreement which should be held to prohibit the entry of judgment. We need not reach the issue of whether Glazer is a third party beneficiary of the Fidelity—S. Marshall Gorson agreement since we have already held that that agreement did not prevent Fidelity from entering judgment for purposes of security against the maker of the note. The order of the lower court as to Harry F. Glazer is affirmed.

SPAETH, J., files concurring and dissenting opinion.

SPAETH, Judge,

concurring and dissenting:

I join in Parts I and III of the majority opinion. But I dissent from Part II. For I am unable to agree with the majority’s conclusion, slip op. at 269, that “the death of the maker revokes the warrant to confess judgment even for purposes of security and even if the warrant is not contingent upon a default under the obligation.”

Professor Seavey noted in his article, Termination by Death of Proprietary Powers of Attorney, 31 Yale Law Journal 283, 286 (1921), that

[t]he first case in the United States raising the question of the termination of [an agency] power by death of the grantor was that of Bergen v. Bennett in which Chancellor Kent held that a power of sale in a mortgage was a “power coupled with an interest” and was not affected by the death of the mortgagor. It was Hunt v. Rousmanier’s Administrators, however, which proved to be the foundation of later American cases.

In Hunt v. Rousmanier’s Administrators, 8 Wheat. 174, 5 L.Ed. 589 (1823), Rousmanier had given Hunt a power of attorney to sell certain vessels as security for the repayment of a loan. Rousmanier died insolvent without having repaid the loan. When Hunt sued to recover, Rousmanier’s administrator demurred. The lower court sustained the demurrer. Although Chief Justice Marshall reversed the order of the lower court and remanded the case for argument on the issue of mutual mistake, he outlined the law of agency as applied to a power of attorney held as security for a debt:

This instrument contains no words of conveyance or of assignment, but is a simple power to sell and convey. As the power of one man to act for another depends on the will and license of that other, the power ceases when the will, or this permission, is withdrawn. The general rule, therefore, is, that a letter of attorney may, at any time, be revoked by the party who makes it; and is revoked by his death. But this general rule, which results from the nature of the act, has sustained some modification. Where a letter of attorney forms a part of a contract, and is a security for money, or for the performance of any act which is deemed valuable, it is generally made irrevocable in terms, or if not so, is deemed irrevocable in law. Although a letter of attorney depends, from its nature, on the will of the person making it, and may, in general, be recalled at his will, yet, if he binds himself for a consideration, in terms, or by the nature of his contract, not to change his will, the law will not permit him to change it. Rousmanier, therefore, could not, during his life, by any act of his own, have revoked this letter of attorney. But does it retain its efficacy after his death? We think it does not. We think it well settled, that a power of attorney, though irrevocable during the life of the party, becomes extinct by his death.
This principle is asserted in Littleton (sec. 66.), by Lord Coke, in his commentary on that section (52b.), and in Willes’ Reports (105, note, and 565). The legal reason of the rule is a plain one. It seems founded on the presumption that the substitute acts by virtue of the authority of his principal, existing at the time the act is performed; and on the manner in which he must execute his authority, as stated in Coombes’ case.1 In that case it was resolved that “when any has authority as attorney to do any act, he ought to do it in his name who gave the authority.” The reason of this resolution is obvious. The title can, regularly, pass out of the person in whom it is vested, only by a conveyance in his own name; and this cannot be executed by another for him, when it could not, in law, be executed by himself. A conveyance in the name of a person who was dead at the time, would be a manifest absurdity.
This general doctrine, that a power must be executed in the name of a person who gives it, a doctrine founded on the nature of the transaction, is most usually engrafted in the power itself. Its usual language is, that the substitute shall do that which he is empowered to do in the name of his principal. He is put in the place and stead of his principal, and is to act in his name. This accustomed form is observed in the instrument under consideration. Hunt is constituted the attorney, and is authorized to make, and execute, a regular bill of sale in the name of Rousmanier. Now, as an authority must be pursued, in order to make the act of the substitute the act of the principal, it is necessary that this bill of sale should be in the name of Rousmanier; and it would be a gross absurdity that a deed should purport to be executed" by him, even by attorney, after his death; for the attorney is in the place of the principal, capable of doing that alone which the principal might do.
This general rule, that a power ceases with the life of the person giving it, admits of one exception. If a power be coupled with an “interest,” it survives the person giving it, and may be executed after his death.
As this proposition is laid down too positively in the books to be controverted, it becomes necessary to inquire what is meant by the expression, “a power coupled with an interest.” Is it an interest in the subject on which the power is to be exercised, or is it an interest in that which is produced by the exercise of the power? We hold it to be clear that the interest which can protect a power after the death of a person who creates it, must be an interest in the thing itself. In other words, the power must be engrafted on an estate in the thing.
The words themselves would seem to import this meaning. “A power coupled with an interest” is a power which accompanies, or is connected with, an interest. The power and the interest are united in the same person. But if we are to understand by the word “interest,” an interest in that which is to be produced by the exercise of the power, then they are never united. The power, to produce the interest, must be exercised, and by its exercise, is extinguished. The power ceases when the interest commences, and, therefore, cannot, in accurate law language, be said to be “coupled” with it.
But the substantial basis of the opinion of the court on this point, is found in the legal reason of the principle. The interest or title in the thing being vested in the person who gives the power, remains in him, unless it be conveyed with the power, and can pass out of him only by a regular act in his own name. The act of the substitute, therefore, which, in such a case, is the act of the principal, to be legally effectual, must be in his name, must be such an act as the principal himself would be capable of performing, and which would be valid if performed by him. Such a power necessarily ceases with the life of the person making it. But if the interest, or estate, passes with the power, and vests in the person by whom the power is to be exercised, such person acts in his own name. The estate, being in him, passes from him by a conveyance in his own name. He is no longer a substitute, acting in the place and name of another, but is a principal acting in his own name, in pursuance of powers which limit his estate. The legal reason which limits power to the life of the person giving it, exists no longer, and the rule ceases with the reason on which it is founded. The intention of the instrument may be effected without violating any legal principle.

Id. at 198, 5 L.Ed. at 596 (footnotes omitted).

Finding that “the power given in this case is a naked power of attorney, not coupled with an interest,” id. at 202, 5 L.Ed. at 597, the Chief Justice concluded that Hunt’s interest did not survive the death of Rousmanier. Thus Hunt lost his position as a secured party despite the parties’ undisputed intention to the contrary.

Since 1823, when Hunt v. Rousmanier's Administrators was decided, many courts “have seen the equity of the situation and have attempted to avoid the consequences of Marshall’s opinion.” Seavey, supra at 294. The result has been great confusion:

The courts are not at all clear, save in England, as to what constitutes a power coupled with an interest. ... in many cases the American courts have used “power coupled with an interest” as meaning a contractual power. When a square determination as to the termination of the power by death has been presented, there are a variety of holdings. Thus where a legal title to real estate is given to a power holder, it is everywhere held that the title survives. Where there is a legal lien upon real property, it would seem that the existence of the lien should be held to create an interest and make the power nonterminable. But some of the courts, finding that the power of sale can not be exercised in the name of the mortgagee, hold that the power terminates with the death of the mortgagor. Where there is less than a lien, the courts have generally held that the power does not survive upon the ground that the power can not be exercised in the name of a dead man. Seavey, supra at 297.

This confusion is apparent in the Pennsylvania cases. While many cases accord with the majority’s view, others have held the power of attorney to survive the grantor’s death. In Keys’s Estate, 137 Pa. 565, 20 A. 710 (1890), Daniel Keys died after having executed a power of attorney to his sister authorizing her to collect the proceeds from a real estate sale and to keep so much of the money as was necessary to repay a debt he owed her. Upholding the power, the Court stated:

The manifest purpose of Daniel Keys was to specifically appropriate so much of his share in his brother’s estate as was necessary to pay the indebtedness therein mentioned; and, to that end, he invested his sister with full authority to receive the money that was coming to him from the land that was then about being sold, and credit the same on account of that indebtedness. There is nothing in the evidence to indicate any other intention. The land referred to in that and subsequent letters is undoubtedly the same that was shortly afterwards sold under the proceedings in partition, and the money in court is part of the proceeds of that sale. What, then, was the effect of the power of attorney and accompanying letter, both of which appear to have been delivered to appellant at the same time? Without pausing to inquire what is necessary to constitute a power coupled with an interest, and wherein it differs from a specific appropriation of property, or the proceeds thereof, to the payment of a particular debt, or for any other special purpose, we are of opinion that the power of attorney and letter above quoted operated as an equitable assignment to appellant of so much of Daniel Keys’s interest in the estate of his brother John as would be sufficient to pay the indebtedness of $250, and interest, specified in the letter. To that extent, appellant thereby acquired a vested right to the purchase money raised by the sale in partition, and that right was not divested by the subsequent death of Daniel Keys in April, 1887. Id., 137 Pa. at 568-69, 20 A. 710.

For cases upholding a power of attorney after the grantor’s death where the grantor had delivered to the holder the property securing the debt, see In Fisher v. New York & Middle Coal Field R. & Coal Co., 31 Wkly. Notes Cas. 502 (1892), and Droste’s Estate, 9 Wkly. Notes Cas. 224 (1880).

The present case is of course distinguishable from such cases. Fidelity Bank was neither equitably assigned nor given possession of specific property as security for the debt. But such requirements seem archaic. Fidelity’s power of attorney was “coupled with an interest” insofar as its exercise was to benefit the holder and not the creator. Had Fidelity taken control of property sufficient to secure its three million dollar debt, it is unlikely that Gorson Enterprises could have been maintained as a going business. The effect of the majority opinion is to interfere with, if not make unavailable, a sensible commercial divorce.

The American Law Institute’s treatment of the problem of irrevocable agency reflects such commercial considerations. Instead of defining when a power is “coupled with an interest,” Restatement (Second). Agency emphasizes the concept of security. Section 138 provides:

§ 138. Definition
A power given as security is a power to affect the legal relations of another, created in the form of an agency authority, but held for the benefit of the power holder or a third person and given to secure the performance of a duty or to protect a title, either legal or equitable, such power being given when the duty or title is created or given for consideration.

Section 139 defines the circumstances in which a power given as security may be terminated:

§ 139. Termination of Powers Given as Security
(1) Unless otherwise agreed, a power given as security is not terminated by:
(a) revocation by the creator of the power;
(b) surrender by the holder of the power, if he holds for the benefit of another;
(c) the loss of capacity during the lifetime of either the creator of the power or the holder of the power; or
(d) the death of the holder of the power, or, if the power is given as security for a duty which does not terminate at the death of the creator of the power, by his death.
(2) A power given as security is terminated by its surrender by the beneficiary, if of full capacity; or by the happening of events which, by its terms, discharges the obligations secured by it, or which makes its execution illegal or impossible.

In the Comment to Section 139 it is said:

* * * üc *
<1. Death. If the power holder dies, a court of equity will direct the exercise of the power for the benefit of the beneficiary. If the creator of the power dies and the power is given to secure the performance of a duty not terminated by the death of the power giver, the power survives.

Among the illustrations to the Section are the following:

5. P sells shares in a corporation to A and delivers to A his share certificate, and a power of attorney to transfer the shares upon the books of the corporation. P dies before the shares are transferred upon the books. A’s power to make the transfer is not terminated.
6. P borrows money from A and as security gives A a power, in case of P’s default in payment, to collect a debt owed by T to P and to pay himself out of the proceeds. A’s power to collect the debt is not affected by the death of P.
7. P borrows money from A, and as security in case of nonpayment, gives A a power of attorney to take and sell certain ships belonging to P, then at sea. P makes default in payment, and A takes possession of the ships in pursuance of the power. P dies. A can now sell the ships, notwithstanding P’s death.

This formulation of the law first appeared in Preliminary Draft # 54, which was issued by the American Institute of Law in 1932 (Professor Seavey acting as Reporter). The draft was accompanied by an explanatory Note to the Council, which stated:

Note to the Council: This Section is a departure from the corresponding Sections in the Second Tentative Draft (§§ 233, 234 and 235) in that it states that a power given for security is not terminated by the death of the power giver. In § 233 it was stated that a power of attorney given as security is terminated by “. . . (e) the death of the giver of the power except as stated in § 235.” In § 235 it was stated: “A power given as security is not terminated by the death of the giver of the power if such power (a) constitutes a term in or a part of the creation of a legal or equitable estate in or mortgage upon property of the person giving the power, or (b) forms a part of a transaction which creates a legal or equitable lien upon property of such giver, or (c) forms a part of a transaction which constitutes a legal or equitable assignment of the whole or a part of a debt or demand due to such giver, or (d) forms a term in a transaction amounting to a pledge of property of such giver, or (e) is a term in a contract whose obligations survive against such giver’s estate, and which grants rights to receive, retain, possess or appropriate property of such giver.”
These Sections were written in light of the case of Hunt v. Rousmanier, 8 Wheat. 174 [5 L.Ed. 589] (1823). In this case, the owner of a vessel in borrowing money gave as security a power of sale of the vessel, this being given rather than a mortgage, in order that there should be no change in registration. The court held that the power terminated with the death of the grantor of the power. The American courts have professed to follow the authority of this case but have distinguished the cases involving the point so that it may be fairly said that today in substantially all situations in which a power has been given, the death of the giver of the power does not terminate it. The only cases in which it can be said to have any remaining validity are those where the power is given in reference to land and in which the court finds that it was not intended to give either an equitable interest in the land or a lien upon it. The cases holding that the power terminates upon the death of the giver are almost all fifty years old or more, and the rule does not accord with the modern idea that one having a power in regard to something has an interest in it. It may fairly be said therefore that with the change of view in regard to the creation of an interest in things, in every case where a power of this sort is created, the rule as stated satisfies the requirement of Marshall in Hunt v. Rousmanier, that in order to survive a power must be coupled with an interest. The views of the Reporter upon this matter were expressed in 31 Yale Law Journal 283 (1922). The more recent case of Mulloney v. Black, 244 Mass. 391 [138 N.E. 584] (1923) is typical since, although citing Hunt v. Rousmanier, it held that a power to appropriate money due the power giver was not terminated by his death. The original sections purported to follow Hunt v. Rousmanier but a critical examination of them shows that their meaning is substantially similar to that of the present Section. It appears to the Reporter that it will serve the profession better to state frankly that the law as to these powers has become consistent with the law of contracts and property.
Preliminary Draft of Restatement of Agency # 54 at 155-57 (1934).

In my opinion, the American Law Institute has stated the better rule, and we should adopt it. I acknowledge that doing so would be inconsistent with some cases. But it would be consistent with others, and would bring our law up-to-date by recognizing the practical considerations of the commercial world.

As to the Estate of Joseph N. Gorson, the order of the lower court should be affirmed.

      . In its opinion, the Court acknowledged the parties’ intention, stating that “[i]t remains to inquire, whether the appellant is entitled to the aid of this Court to give effect to the intention of the parties to subject the interest of Rousmanier in the Nereus and Industry to the payment of the money advanced by the plaintiff on the credit of those vessels, the instrument taken for that purpose having totally failed to effect its object.” Hunt v. Rousmanier’s Administrators, supra at 206, 5 L.Ed. at 598.

      . The Court has used the theory of equitable assignment to save a power of attorney in circumstances other than the death of the principal. In Lightner’s Appeal, 82 Pa. 301 (1976), the Court upheld a power of attorney after the bankruptcy of the principal.
      The bill set forth substantially, that on the 9th of June 1875, Frank J. Herr was adjudged a bankrupt, and on the 12th of August following, Joel L. Lightner was duly appointed assignee of his estate; that the said Herr at the time of the assignment was the owner of sixty-three shares of the capital stock of the First National Bank of Strasburg, and as such owner had drawn the dividends thereon to the time of the commencement of the proceedings in bankruptcy; that by these proceedings the title to this stock was vested in the assignee; that said bank claimed to hold said stock by virtue of an alleged transfer as collateral security for an indebtedness of said bankrupt to the bank, and in pursuance of said claim, the directors of said bank had directed the stock to be sold; that it is denied that said bank is entitled to said stock or that it has ever been transferred to the bank, or that it had any interest therein, and that it is the duty of said assignee to sell said stock for the benefit of the estate of the bankrupt, and he therefore prays the court to grant an injunction to restrain the bank from selling and transferring the stock and for an order to permit the assignee to transfer the same.

        Id. at 302.
      The Court refused to enjoin the bank from selling the stock and held instead that the power of attorney
      was not only by its own terms irrevocable for value received, but it was so by the legal operation of the agreement which induced it. It is a power coupled with an interest, and was made and executed for the very purpose of carrying the agreement into performance. When a power of attorney is thus adopted by the parties, as the means of carrying out their valid agreement made upon sufficient consideration, its operation must be sustained upon the nature and purpose of the contract to which it is ancillary and which it is intended to effectuate. If the effect of the contract, inter partes, is, as here, to give a right of property or interest in the subject-matter itself of the agreement, to the party for whose benefit the execution of the power is intended, the power follows the estate or interest thus agreed to be transferred, and becomes irrevocable by operation of law.

        Id. at 304-305.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    442 A.2d 275
    James E. BARNES, Appellant, v. Shirley M. BARNES.
    Superior Court of Pennsylvania.
    Argued April 14, 1981.
    Filed Feb. 26, 1982.

      Henry A. Hudson, Jr., Greensburg, for appellant.
    Shirley M. Barnes, appellee, in pro. per.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   CAVANAUGH, Judge:

This appeal is taken from a custody order entered by the Court of Common Pleas of Westmoreland County following hearings on a petition to modify a previous custody order. The appellant asks us to reverse the lower court’s order or, alternatively, to remand the case for a more extensive evaluation of the testimony. Appellee also requests that the case be remanded, but for entirely different reasons. She alleges that her counsel was “incompetent” in that he failed to present important evidence relevant to her fitness as the primary custodial parent. She desires an opportunity to present such evidence at a new hearing. We agree that a remand is necessary.

The dispute in this case concerns custody of the parties’ two daughters. The original order, entered August 1, 1978, stipulated that custody was awarded on a shared basis. The children were to reside with their mother, appellee, from Monday through Friday, and with appellant every weekend.

On September 27, 1979, appellant filed a petition requesting that appellee be found to be in contempt of court for refusing to abide by the provisions of the order and also requesting that the order be modified to provide that primary custody be with appellant. Following two hearings on the petition, the lower court entered a new order directing that primary custody remain with appellee during the school year, with appellant to have custody two weekends per month, and that appellant have primary custody during the summer, with appellee to have weekend visitation rights twice a month.

This court has broad discretion to review custody orders. See In re Custody of White, 270 Pa. Super. 165, 411 A.2d 231 (1979) and cases cited therein. In order to facilitate this broad review, “we have consistently emphasized that the hearing court must provide us not only with a complete record, but also with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s ultimate decision.” White, supra, 270 Pa.Super. at 167-68, 411 A.2d at 233 (citation omitted).

The opinion entered by the trial court in this case discusses only two changes in circumstances since the original order was entered. First, only the mother was living with a paramour at the time of the original order, while both parties were living with persons to whom they were not married at the time of the hearing on the petition for a modification. Secondly, the appellee had moved since the time of the original hearing to a place which was a forty minute drive from appellant’s residence, while the parties had lived only twenty minutes apart before the appellee’s move. The opinion does not discuss the testimony presented in support of appellant’s allegation that appellee has repeatedly interferred with his rights to weekend visitation. It also contains no reference to the testimony of the children which was taken in chambers.

While we recognize that this hearing did not involve an initial custody determination, we nevertheless feel that the opinion does not comply with the requirements set forth in White, supra, and therefore we find it necessary to remand the case. However, we do not agree with appellant’s contention that the lower court must address every issue raised at the hearings. Much of the “testimony” in this case consisted of unsupported or irrelevant accusations. The court need only discuss testimony which is credibly relevant to a determination of whether there are changed circumstances in this case which warrant a change in custody.

Since well over a year has elapsed since the order in question was entered, the court should permit a new hearing on remand so that evidence can be presented to reflect current circumstances. Following the hearing the court shall file an opinion containing a discussion of all relevant testimony as well as an order regarding custody.

Order vacated. Case remanded for further proceedings. We do not retain jurisdiction.

Decision was rendered prior to SHERTZ, J., leaving the bench of the Superior Court.

      . Appellant also alleges that the lower court improperly ordered him to provide visitation with the maternal grandparents while he had custody of the children. The court made no such order. It merely ordered Mrs. Barnes not to interfere with visitation by the maternal grandparents if Mr. Barnes wished to provide the opportunity for such visitation while the children were with him. No affirmative duty to provide the visitation was placed on appellant.


author: WICKERSHAM, Judge:

text:
    442 A.2d 277
    COMMONWEALTH of Pennsylvania v. Walter ADAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 6, 1981.
    Filed Feb. 26, 1982.

      Frank Palumbo, Jr., Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   WICKERSHAM, Judge:

Walter Adams, appellant herein, was tried before the Honorable Stanley L. Kubacki sitting with a jury at a trial commencing June 23, 1980 and was convicted of numerous offenses involving the abduction and rape of a young woman.

The evidence at trial established that on two separate occasions Adams committed sexual crimes against a young woman named Kim Walker. The victim testified that on November 28,1979, she was approached by Adams inside the Pony Trail Bar, 52nd and Stiles Street, Philadelphia. Adams tried to have a conversation with the victim, but she cut him short and stated she had to go out on an errand. She was pregnant at the time and not interested in his company. Adams persisted in his attempts to become intimate with her and offered to talk with her. Using the pretext that he would protect her on the streets against unknown dangers, he accompanied her. He persuaded her to stop with him, for a moment, at his sister’s house. On their way back to the Pony Trail Bar, he took a knife from his pocket, stuffed a bandana in the victim’s mouth, pulled her into an alley, and pushed her to her knees. He demanded that she perform an act of deviate sexual intercourse. When she refused, he punched her in the stomach and the face. He pulled her to her feet, dragged her out of the alleyway, down 51st Street and into a cemetery located at 51st Street and Girard Avenue. Adams pushed the victim and punched her again. He forced her to partially disrobe. He hit her in the face and made her commit oral sex on him. The victim vomited. At that point Adams took her wristwatch and left her in the cemetery. The victim made her way back to the Pony Trail Bar where she told some friends what had happened. The police were summoned and the victim was taken to the hospital.

Several weeks later, on December 18, 1979, Adams and several unknown cohorts abducted the victim from the street at the intersection of 52nd and Warren Avenue in Philadelphia. The victim, on this second occasion, was taken to a nearby house, stripped of her clothing, tied to the bedstead and raped repeatedly.

The men, with the exception of defendant also forced her to commit oral sex on them. One of the men gave her injections which caused her to become somewhat disoriented, nervous, and confused. The victim estimated that her ordeal lasted four days during which she was subjected to frequent sexual abuse. She was injected with drugs, denied food and drink, and left tied to a bed. Finally, on what she estimated to be the fourth day she managed to escape when the men forgot to tie her up. She managed to gather her clothes together, open a window, jump out, and run away. The police were summoned and Adams was arrested shortly thereafter. The victim was hospitalized. It was determined in the hospital that she had been injected with a quantity of methamphetamine. For these crimes, Adams was sentenced to terms which, in the aggregate, constitute a sentence of twelve to twenty-five years.

I. WHETHER THE CHARGE OF INVOLUNTARY DEVIATE SEXUAL INTERCOURSE MERGED IN THE RAPE CHARGE WHEN BOTH OF THE CHARGES AROSE OUT OF THE ONE CRIMINAL EPISODE, MAKING IMPOSITION OF SEPARATE CONSECUTIVE SENTENCES FOR BOTH CRIMES AMOUNT TO DOUBLE JEOPARDY?

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) the applicable rule for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was set forth:

The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb.’ It has long been understood that separate statutory crimes need not be identical-—either in constituent elements or in actual proof—in order to be the same within the meaning of the constitutional prohibition. . . .
[T]he Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.
The Double Jeopardy Clause ‘protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. . . . ’ Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. . . .
The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180 [182] 76 L.Ed. 306 (1932):
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not... .
This test emphasizes the elements of the two crimes. ‘If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . . ’

Id. at 165, 97 S.Ct. at 2225, 53 L.Ed.2d at 193-94.

Walter Adams alleges that he was placed twice in jeopardy due to the imposition of separate consecutive sentences after his conviction for two counts of involuntary deviate sexual intercourse and one count of rape. Although rape, 18 Pa.C.S.A. § 3121 and involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123, may constitute the same crime for the purposes of the double jeopardy clause, where the defendant’s actions constitute separate injuries to the “peace and dignity of the Commonwealth,” then each separate act may be punished separately.

Here, the first criminal act of Adams occurred during the November 29 incident when he coerced Ms. Walker into an act of oral sodomy. For this act, he was convicted and sentenced on Bill 1507, charging involuntary deviate sexual intercourse during the November 29 incident [N.T. 5.67], Because the act of Adams leading up to his conviction on Bill 1507 was separate from the other charges of rape and involuntary deviate sexual intercourse arising out of the December incident, the double jeopardy clause has not been affected by his sentence.

The second and third criminal acts of Adams occurred during the second incident of December 15-18. During this second incident, Adams first coerced Ms. Walker into an act of oral sodomy and then had coerced vaginal sex with Ms. Walker (N.T. 2.25). As a result of the second incident, he was convicted and sentenced under Bill 1511, charging involuntary deviate sexual intercourse. He was also convicted and sentenced on Bill 1509, charging rape for the separate act of vaginal intercourse. It is also noteworthy, that in its charge the trial court stated that a conviction for involuntary deviate sexual intercourse required proof of coerced sexual intercourse between the mouth or the anus of two persons not married to each other (N.T. 5.67), and then charged that a verdict of guilty on the rape count required proof of coerced intercourse between two persons not married to each other. As a result of these instructions, there can be no doubt that the two verdicts of guilty returned on Bills 1509 and 1511 were based upon the two separate acts of Adams. The sentences on these bills are, hence, also based on two separate acts and are, therefore, not violative of double jeopardy.

As stated in Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976):

Analysis of duplicitous sentence questions has traditionally revolved around the concept of injury to the sovereign, in this case the Commonwealth. One of the purposes of the criminal law is to punish offenses against the Commonwealth, as defined by the Legislature, and it follows that, ‘[t]he criminal prosecution is for the injury done to the Commonwealth, and not for the injury done to the individual who may, if entitled, obtain redress through a civil action. Where there is but one act of cause of injury, or death of a number of persons, there is but one injury to the Commonwealth, but where the acts or causes are separate, they are separate injuries to the peace and dignity of the Commonwealth.’

Id., 468 Pa. at 331, 362 A.2d at 231.

In Commonwealth v. Wojciechowski, 285 Pa.Super. 1, 426 A.2d 674 (1980), we said:

It is well established that for two crimes to merge, one must ‘necessarily involve’ the other.... It has oft been stated that in order for one crime necessarily to involve another, the essential elements of one must also be essential elements of the other. ... A less mentioned and perhaps more obvious requirement is that the crime be part of the same transaction.
Since the evidence presented supported all the convictions, defendant was appropriately and properly sentenced for each offense. It is unthinkable that a woman, once having been raped, is in the position where her attacker can then abuse her in any other fashion sexually, such as penetrating her anus or mouth with his penis, without incurring further sanctions for these separate and distinct crimes.
‘Defendant cannot escape criminal liability merely because he chose to subject the victim to every possible kind of aggressive, physically abusive, sexual behavior in his depraved arsenal.’

Id., 285 Pa.Superior Ct. at 9, 426 A.2d at 677-78 (citations omitted).

II. WHETHER THE TRIAL JUDGE’S EXTRAJUDICIAL COMMENT DURING CROSS-EXAMINATION OF A DEFENSE WITNESS CONSTITUTED PREJUDICE WHICH MAY REASONABLY BE SAID TO HAVE DEPRIVED THE APPELLANT OF A FAIR AND IMPARTIAL TRIAL?

Adams argues he was deprived of a fair trial due to the comment of the trial judge during the Commonwealth’s cross-examination of a defense witness. The particular witness Ms. April Brooks, testified on direct examination that Adams had appeared at her home with a female companion on the night of the first incident and had asked to use a room. Ms. Brooks further testified that she refused to give him the use of a room. According to Ms. Brooks, he then left her house and returned fifteen minutes later with a note from his sister, who lived with Ms. Brooks, stating that Adams had permission to use a room in the house (see N.T. 3.83-85).

On cross-examination, the Commonwealth asked Ms. Brooks if she had ever before been presented with a note giving permission to use a bed in her house. Ms. Brooks responded “No” (N.T. 3.88). The following then transpired:

Q. Didn’t that strike you rather strange and unusual?

Mr. Stanshine: Objection

The Court: No, overruled. It’s a strange story.

N.T. at 3.88-3.89.

We find no merit to the assertion of appellant that the above statement by the trial judge was prejudicial. To the contrary, the statement was made in the context of an evidentiary ruling and was used to explain that ruling to the defense. In any event, even if error, it was harmless.

Even in the event we hold this comment to be unduly prejudicial to the appellant, we certainly cannot hold that it is of such a nature or substance or delivered in such a manner as to have deprived appellant of a fair and impartial trial. Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977). Thus, we also dismiss the contention.

Commonwealth v. Henderson, 275 Pa.Super. 350, 357, 418 A.2d 757, 761 (1980).

III. WHETHER THE CONDUCT OF THE PUBLIC DEFENDER HAD NO REASONABLE BASIS DESIGNED TO EFFECTUATE HIS CLIENT’S INTERESTS, DENYING THE APPELLANT HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAW?
IV. WHETHER, IF IN THE CONGLOMERATE, THE APPELLANT WAS DENIED A FAIR AND IMPARTIAL TRIAL DUE TO THE TRIAL COURT’S EXTRAJUDICIAL COMMENT AND THE INEFFECTIVENESS OF THE PUBLIC DEFENDER, AND WHETHER THIS AMOUNTED TO HARMFUL ERROR REQUIRING A NEW TRIAL?
‘[Bjefore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.’ Commonwealth v. Hill, 427 Pa. 614, 617, 235 A.2d 347, 349 (1967). Once it has been determined that the particular course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests, counsel will be deemed constitutionally effective. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Additionally, there is a presumption in the law that counsel is effective, Commonwealth v. Witherspoon, 481 Pa. 321, 392 A.2d 1313 (1978); Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973); thus, the burden of establishing ineffectiveness rests upon appellant. Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980); Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976).

Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 234-35 (1981).

And in Commonwealth v. Davenport, 494 Pa. 532, 431 A.2d 982 (1981):

Our inquiry here, as in every case where the effective assistance of counsel is at issue, is defined by Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). There, we stated:
[0]ur inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

427 Pa. at 604-605, 235 A.2d at 352-53.

Id., 494 Pa. at 535, 431 A.2d at 984.

Instantly, an independent evaluation of the record shows a reasonable basis for the course employed by counsel. The fact that counsel requested a Bighum motion (N.T. 1.69) indicates that he had considered placing defendant on the stand. It thus cannot be said that this is a case where counsel was ineffective because of oversight or failure to consider the various alternatives available. Commonwealth v. Twiggs, 460 Pa. 105, 109, 331 A.2d 440, 443 (1975).

The defendant offered a consent defense for the first incident on November 29 and an alibi defense for the incident of December 19. According to the testimony of Detective Vale (N.T. 2.212), defendant had made a statement regarding the first incident after his arrest. In that statement defendant claimed that the November 29 incident with Ms. Walker was consensual and that the two had had vaginal sex. “We screwed, went to bed. We laid down and had sex on the grass.” (N.T. 2.12).

Ms. Walker’s version of the events of November 29 was notably different. She testified defendant coerced her into an act of oral sex by beating her, knocking her over and threatening her with a knife. After the incident, Ms. Walker had either vomited or regurgitated on a tombstone (N.T. 1.143).

After her escape, Ms. Walker informed the police and was taken to a hospital. Samples from her throat indicated the presence of spermatozoa. Samples taken of the regurgitated matter found on the tombstone also indicated the presence of spermatozoa. Further evidence adduced at trial showed Ms. Walker had bruises on her face and neck and was hospitalized for three days with abdominal problems (N.T. 1.157, 2.106, 3.09, 3.57).

Had defendant reiterated his original story of consensual vaginal sex, he would have been subject to impeachment because the physical evidence proved beyond dispute that Ms. Walker had forcible oral intercourse on November 29.

Had defendant altered his story to coincide with the physical evidence, e.g., claimed that he and Ms. Walker had consensual oral sex, his story would have again been discredited by his earlier inconsistent statement to the police, his certain inability to give a credible explanation of Ms. Walker’s subsequent injuries, hospitalization and vomiting, and by Ms. Walker’s own version of the night’s events.

Defense counsel, under these circumstances, wisely chose not to put the defendant on the stand. Instead, counsel tried to show consent for the first incident circumstantially e.g., testimony by defendant’s friend and sister that they had seen defendant and Ms. Walker together on November 29 holding hands and asking to use a bed (N.T. 3.107, 3.105, 3.84). Of course, these same considerations regarding cross examination also applied if defendant took the stand to give his alibi defense. Even if he tried to avoid testimony regarding the first incident, his failure to explain that, while claiming an alibi for the second incident would have destroyed his very viable alibi defense for that second incident. Under such circumstances, defendant’s counsel wisely chose to place other individuals on the stand to give the alibi defense, individuals whose credibility was not so easily assailed.

Defendant also claims counsel was ineffective for failing to call certain witnesses who allegedly could have, helped defendant’s case: e.g. Angelitude Hines, Francis Smith, Mark Blackwell and Venessa Lee.

Defendant’s has failed to produce evidence to support his contention that counsel was ineffective for failing to call additional witnesses. Commonwealth v. Bullock, 272 Pa.Super. 362, 415 A.2d 1240 (1979). Defendant must substantiate his claim that the unadduced evidence would have been helpful to his defense, Commonwealth v. Charleston, 251 Pa.Super. 311, 380 A.2d 795 (1977), and this he has failed to do.

A reason of arguable merit for not calling these witnesses is clear from the record. Two of the witnesses, Venessa Lee ¿hd Mark Blackwell, had gone to the Pony Trail Bar with Ms. Walker on the evening of the first incident and had assisted her after defendant had sexually assaulted her (N.T. 1.153-1.156). Indeed, Venessa Lee had taken Ms. Walker to the hospital after the November 29 incident and was on-call as a Commonwealth witness throughout the trial (N.T. 5.75, 511).

The other two witnesses would presumably have been additional alibi witnesses for defendant whose testimony would have been merely cumulative, since defendant had already presented four alibi witnesses.

Finally defendant claims his trial counsel was ineffective because he failed to object to the hearsay testimony of Detective Vale. Counsel did in fact object to the testimony and his objection was overruled (N.T. 4.183).

Because defendant’s allegations of ineffectiveness are all either tactical decisions by counsel or frivolous claims, defendant is not entitled to a new trial.

It is axiomatic that failure to raise a meritless claim cannot render counsel ineffective. Thus, in evaluating appellee’s claim of ineffective assistance of counsel, we must first determine whether an object to the clerk’s remark would have been of arguable merit:
The initial factor which must be considered... is whether the claim which post-trial counsel is charged with not pursuing had some reasonable basis .... It is only when the claim which was foregone was of arguable merit that we must make an inquiry into the basis for . . . counsel’s decision not to pursue the matter.
Commonwealth v. Hubbard, 472 Pa. 252 [259], 277-78, 372 A.2d 686, 695-96 (1977) (Emphasis supplied). Because we are convinced that the jurors here voluntarily and unequivocally assented to the verdict in direct response to a clear and unambiguous question individually submitted to each of them, an objection by trial counsel to the jury poll would have been manifestly futile. See Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974) (counsel will not be held ineffective for failing to perform a futile act).

Commonwealth v. Ciotti, 496 Pa. 232, 236-37, 436 A.2d 983, 985 (1981).

As was said in Commonwealth v. Bandy, 494 Pa. 244, 431 A.2d 240 (1981):

There is no indication in this case that a more intensive investigation than was conducted would have developed more than was already known. Moreover, we reiterate that ‘a finding of ineffectiveness [can] never be made unless [it can be] concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.’ .... We simply cannot reach such a conclusion here and therefore must reject appellant’s claim that his guilty plea was based upon the ineffective assistance of counsel.

Id., 494 Pa. at 249, 431 A.2d at 243 (citation omitted).

Judgment of sentence affirmed.


author: WIEAND, Judge:

text:
    442 A.2d 284
    HARLEY DAVIDSON MOTOR CO., INC., Appellant, v. Robin HARTMAN and Linda Hartman.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1981.
    Filed Feb. 26, 1982.

      David H. Radcliff, Harrisburg, for appellant.
    William M. Brandt, Palmyra, for appellees.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

This is an appeal from an order dismissing a complaint in assumpsit after plaintiff’s counsel had neglected to file a brief, as required by Lebanon County Rule 1028, in response to defendants’ preliminary objections. We reverse.

On May 27, 1980, appellant, Harley Davidson Motor Co., Inc., filed a complaint in assumpsit against Robin and Linda Hartman, appellees, alleging that appellees had guaranteed the payment of certain advances made by appellant to Harrisburg Harley Davidson, Inc. On June 16, 1980, appellees filed preliminary objections in the nature of a demurrer, together with a supporting memorandum of law. The preliminary objections contended (1) that the written contract was incomplete because it failed to state the amount of the obligation being guaranteed, and (2) that the contract disclosed that appellant’s contractual rights thereunder had been assigned to another company. A copy of the preliminary objections and brief were sent to appellant via first class mail.

Lebanon County Rule 1028, Section B, provides that any party desiring to oppose the sustaining of preliminary objections shall file a brief or memorandum of law within ten days after service of the preliminary objections. Appellant’s counsel neglected to file a responsive brief or memorandum of law. On July 14,1980, twenty-eight days later, appellees certified the records to the Lebanon County Court of Common Pleas for disposition pursuant to Lebanon County Rule 1028. When the preliminary objections came before the court, they were sustained, and an order was entered which dismissed the complaint without leave to amend.

Following notice of appeal, the trial judge prepared a memorandum opinion in which he wrote: “Where, as here, no opponent’s brief or memorandum of law having been filed within ten days, we have consistently interpreted the rule as meaning that the party does not oppose the sustaining of the preliminary objections. We find the preliminary objections facially valid. In that no opponent’s brief has been filed for nearly thirty days after the service of the preliminary objections, we can only assume that the plaintiff does not oppose our sustaining the preliminary objections.”

Lebanon County Rule 1028 does not provide for any sanctions against a party who fails to file a brief or memorandum of law in opposition to preliminary objections. Rather, Section C establishes the procedure by which the record is certified to the Court, and Section D provides: “Upon receipt of the record the Court shall make such disposition as it deems appropriate, including, but not limited to, a sustaining or overruling of the preliminary objections based upon the briefs or memorandums before it, or ordering that the case be listed at the next regular term of argument court.”

In the instant case, the trial court observed that the preliminary objections were “facially valid” and dismissed the complaint for failure to file a brief or memorandum of law. This was not an “appropriate disposition” of appellees’ preliminary objections. “To sustain preliminary objections in the nature of a demurrer, it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.” Harkins v. Zamichieli, 266 Pa. Superior Ct. 401, 404-405, 405 A.2d 495, 497 (1979), quoting Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 282, 259 A.2d 443, 445 (1969).

Appellees contend that the trial court could properly assume that appellant’s failure to file a responsive brief within ten days implied consent to an order sustaining the pending preliminary objections. We do so not understand the rule. In the first place, the rule permits no sanctions for failing to file a responsive brief and does not excuse the court from making an “appropriate disposition.” It does, to be sure, vest substantial discretion in the trial court; but the exercise of that discretion is always subject to review on appeal. Moreover, if Section B is to be interpreted as permitting an inference that a non-filing party does not desire “to oppose the sustaining of the preliminary objections,” such an inference cannot be stretched to include consent to the dismissal, without leave to amend, of a complaint where there has been no judicial determination that it fails to state a cause of action.

Appellees also argue that the court, by determining that the objections were “facially valid,” did consider the substance of appellant’s complaint and found it inadequate. A close examination of the court’s opinion, as well as the complaint and preliminary objections thereto, discloses, as appellant contends, that the trial court did not consider the sufficiency of the complaint but based its order solely on the failure of appellant’s counsel to file timely a responsive brief or memorandum of law. This failure of the trial court to consider the sufficiency of the complaint before sustaining appellees’ preliminary objections and dismissing the complaint without leave to amend was an abuse of discretion.

Even where a trial court sustains preliminary objections on their merits, it is generally an abuse of discretion to dismiss a complaint without leave to amend. “There may, of course, be cases where it is clear that amendment is impossible and where to extend leave to amend would be futile. . . . [However], [t]he right to amend should not be withheld where. there is some reasonable possibility that amendment can be accomplished successfully.” Otto v. American Mutual Insurance Company, 482 Pa. 202, 205, 393 A.2d 450, 451 (1978). “In the event a demurrer is sustained because a complaint is defective in stating a cause of action, if it is evident that the pleading can be cured by amendment, a court may not enter final judgment, but must give the pleader an opportunity to file an amended complaint .... This is not a matter of discretion with the court but rather a positive duty.” Framlau Corporation v. County of Delaware, 223 Pa. Superior Ct. 272, 276, 299 A.2d 335, 337 (1972). See also: Longo v. Rago, 287 Pa. Superior Ct. 509, 510, 430 A.2d 1006, 1007 (1981); Mace v. Senior Adult Activities Center of Montgomery County, 282 Pa. Superior Ct. 566, 567, 423 A.2d 390, 391 (1980); Itri v. Lewis, 281 Pa. Superior Ct. 521, 524, 422 A.2d 591, 593 (1980); Mellon Bank, N.A. v. Joseph, 267 Pa. Superior Ct. 307, 312, 406 A.2d 1055, 1057 (1979); 2 Goodrich-Amram, Standard Pa. Practice § 1028(e):2 and § 1017(b):11.

We conclude, therefore, that the trial court abused its discretion when it dismissed the complaint without leave to amend and thereby put appellant out of court without ever considering the sufficiency of the cause of action alleged in the complaint.

When Lebanon County Rule 1028 is construed to require the trial court in all instances to exercise its discretion to make an appropriate disposition of preliminary objections, it is clear that the rule is not in conflict with the Rules of Civil Procedure. It provides merely for prompt submission of preliminary objections to the court, which is thereupon required to consider them, with or without briefs, and make an appropriate disposition. It is not appropriate, however, for the court to dismiss a complaint finally without considering the sufficiency of the complaint or the possibility that a defective complaint can be cured by amendment.

Because we remand we do not now decide the sufficiency of the cause of action alleged in the complaint. This issue, as we have observed, was not considered by the trial court and was not argued on appeal.

Reversed and remanded for further proceedings consistent with the foregoing opinion.

      . Lebanon County Local Rule 1028 provides as follows:
      “RULE 1028. PRELIMINARY OBJECTIONS: SPECIAL PROCEDURE.
      “A. All preliminary objections shall be accompanied by a brief or a memorandum of law containing a concise statement of the legal contention and authorities relied upon in support of said preliminary objections. A copy of each such preliminary objection and memorandum or brief shall be served upon the opposing party.
      “B. Any party desiring to oppose the sustaining of the preliminary objections shall file with the Court within ten (10) days after service of the copy of the preliminary objections and memorandum or brief, a brief or memorandum of law containing a concise statement of the legal contentions and authorities relied upon in opposition to the sustaining of the preliminary objections.
      “C. On the eleventh day after the service of all preliminary objections and briefs and memorandums of law upon all parties, unless an amended pleading has been filed, the prothonotary, on praecipe by a party, shall certify the entire record to the court for disposition.
      “D. Upon receipt of the record the Court shall make such disposition as it deems appropriate, including, but not limited to, a sustaining or overruling of the preliminary objections based upon the briefs or memorandums before it, or ordering that the case be listed at the next regular term of argument court.
      “E. The prothonotary, on praecipe of a party, shall issue a rule, returnable five (5) days after service, upon a party who has filed preliminary objections without a brief or memorandum, to show cause why the aforesaid preliminary objections should not be dismissed on motion for failure to file a brief or memorandum.
      “F. Nothing herein shall prohibit any party from listing preliminary objections filed at a regular session of argument court.”

      . Appellant’s counsel has represented in this Court that his failure to file a timely brief or memorandum of law was caused by a lack of ■ awareness of the local rule adopted in Lebanon County.

      . Compare Lebanon County Rule 1028 with Montgomery County Rule 302(d), as construed by this Court in Seidel v. Great Factory Store, 291 Pa. Superior Ct. 255, 435 A.2d 896 (1981); Ryman v.

        Microcom Corp., 290 Pa. Superior Ct. 577, 434 A.2d 1301 (1981); Dunham v. Temple University, 288 Pa. Superior Ct. 522, 432 A.2d 993 (1981); Shapiro v. Albright, 287 Pa. Superior Ct. 414, 430 A.2d 672 (1981); Hesselgesser v. Glen-Craft Contractors, Inc., 287 Pa. Superior Ct. 319, 430 A.2d 305 (1981) (allocatur granted).


author: McEWEN, Judge:

text:
    442 A.2d 287
    COMMONWEALTH of Pennsylvania, Appellant, v. Owen X. BAGLEY.
    Superior Court of Pennsylvania.
    Argued June 1, 1981.
    Filed Feb. 26, 1982.

      Rex R. Gary, Assistant District Attorney, Media, for Commonwealth, appellant.
    Roy H. Davis, Public Defender, Media, for appellee.
    Before McEWEN, MONTEMURO and SHERTZ, JJ.
   McEWEN, Judge:

The Commonwealth brings this appeal from an Order of the Court of Common Pleas of Delaware County granting the motion of appellee in arrest of judgment on the charge of possession with intent to deliver a controlled substance, after a jury trial in which appellee, Owen X. Bagley, was convicted of both that charge and an accompanying charge of possession of a controlled substance. In viewing the evidence in the light most favorable to the Commonwealth as verdict winner, the following facts were established. On January 26, 1979, a search and seizure warrant was issued for a 1974 black and silver Cadillac automobile owned by the appellee, Owen X. Bagley, and itemized heroin, methamphetamine, any substance used for cutting drugs and any items used to weigh, package, administer or measure controlled substances as the contraband to be seized. On that same day Chester City Police Officers Thomas Fennell and John Gretsky observed the vehicle specified in the search warrant as it passed their vehicle, followed it, and saw the driver of the Cadillac gradually decrease the speed of the car, open the driver’s window and toss a small white package about the size of a pack of cigarettes to the side of the road and then accelerate rapidly. Officer Fennell stopped briefly to locate the discarded package on the side of the road, resumed pursuit, and quickly caught up to the vehicle. Officer Gretsky ordered the driver to pull to the side of the road. The driver of the vehicle, the appellee, was placed under arrest at the scene on an outstanding arrest warrant based upon a domestic complaint that had been lodged against him by his wife. Bagley was further informed by Officer Gretsky that they had a search warrant for his automobile and gave it to him. An immediate search of the person of appellee, his automobile and his male companion, Sammy Davis, at the scene of arrest revealed no contraband. While other Chester City Police Officers took appellee and the three other occupants of the vehicle, as well as the vehicle, to the police station, Officers Fennell and Gretsky returned to the area where they had observed appellee toss the white object from the car and there found a white box which contained eleven glassine bags or envelopes bound together with a rubber band. Each glassine bag contained a white powder. A field test conducted by Officer Gretsky indicated the presence of opiates.

At the police station, a further search of appellee and his automobile, as well as a search of the persons of his three companions revealed no contraband. Appellee was subsequently placed under arrest on the charges of possession of a controlled substance and of possession with the intent to deliver a controlled substance. Chemical analysis of the powder revealed it to be a substance containing heroin, quinine, caffeine and mannitol. The total weight of the powder was 15.3 grams and the purity of the heroin in the bags ranged from four percent to eighteen percent.

A preliminary hearing was held on February 23, 1979 and appellee was held for court on both charges. A petition to suppress the package of eleven glassine bags containing the heroin was dismissed. A trial, held before the Honorable John V. Diggins on June 20 and 21, 1979, was concluded by declaration of a mistrial after the jury was unable to agree upon a verdict. A motion to discharge the indictments, based upon a claim that the jury was deadlocked by reason of insufficient evidence, was denied by Judge Diggins and no appeal was taken from this order. After a trial which was commenced on November 7, 1979 before the Honorable Robert A. Wright, appellee was found guilty by a jury on the charges of possession of a controlled substance and of possession with intent to deliver a controlled substance.

After argument upon post-trial motions, Judge Wright, by order of December 3, 1980, granted the motion of defendant in arrest of judgment on the charge of possession with intent to deliver a controlled substance and discharged the defendant on that count. All other motions of this defendant were denied. The imposition of sentence was continued pending this appeal by the Commonwealth.

The sole contention of the Commonwealth on appeal is that the trial court erred when it granted the motion of defendant to arrest judgment on the charge of possession of a controlled substance with intent to deliver. The Commonwealth argues that the evidence presented at trial with regard to the quantity of the heroin seized, its street value, its relative purity, the manner of its packaging, as well as the fact that this controlled substance was in the physical possession of the appellee, was sufficient to permit the jury to render a verdict of guilty against the appellee on the charge of possession with intent to deliver a controlled substance. We disagree with this contention. Our review of the record and examination of the relevant case law does not permit us to conclude that the trial judge erred and, therefore, we affirm.

The established test for reviewing the propriety of a motion in arrest of judgment was restated by this Court in Commonwealth v. Barnes, 237 Pa.Super. 407, 352 A.2d 107 (1975):

[T]he sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences therefrom. The effect of such a motion is to admit all the facts which the Commonwealth’s evidence tends to prove. (Citations omitted). Also, in passing upon such a motion, all evidence actually received must be considered, whether the trial rulings thereon are right or wrong.” Commonwealth v. Terenda, 433 Pa. 519, 523, 252 A.2d 635, 637 (1969) quoting from Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965) (Emphasis in original).

Id., 237 Pa.Super. at 410, 352 A.2d at 109.

In order for a trial court to properly grant the motion of a criminal defendant to arrest judgment on the basis of insufficient evidence, it must determine, after accepting all of the evidence it chooses to believe and all reasonable inferences therefrom, upon which the verdict could properly have been based, that such evidence and such inferences would, nonetheless, be insufficient as a matter of law to find the defendant guilty of the crime charged beyond a reasonable doubt. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977); Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973).

The Commonwealth cites a number of decisions from our Pennsylvania Courts to support its contention that the evidence presented at trial was sufficient to allow a jury to properly draw the inference that appellee, the possessor of the heroin, had the requisite intent to deliver to support a conviction of possession with intent to deliver a- controlled substance. See Commonwealth v. Santiago, 462 Pa. 216, 340 A.2d 440 (1975); Commonwealth v. Smith, 250 Pa.Super.Ct. 460, 378 A.2d 1239 (1979); Commonwealth v. Hill, 236 Pa.Super.Ct. 572, 346 A.2d 314 (1975), affirmed in part, vacated in part, 481 Pa. 37, 391 A.2d 1303 (1978); Commonwealth v. Wright, 234 Pa.Super.Ct. 83, 340 A.2d 544 (1975); Commonwealth v. Wallace, 265 Pa.Super.Ct. 91, 401 A.2d 816 (1979); Commonwealth v. Sojourner, 268 Pa.Super.Ct. 472, 408 A.2d 1100 (1978); Commonwealth v. Harris, 241 Pa.Super.Ct. 7, 359 A.2d 407 (1976); Commonwealth v. Brown, 232 Pa.Super.Ct. 463, 335 A.2d 782 (1975). We concur with the trial court that each of the cited cases is readily distinguishable from the instant case.

In Commonwealth v. Santiago, supra, the Pennsylvania Supreme Court, adopting the reasoning of the Tenth Circuit Court of Appeals in United States v. King, 485 F.2d 353 (10th Cir. 1973), concluded that mere possession of a sufficient quantity of a controlled substance is a circumstance from which the trier of fact may infer that the possessor had the intent to sell, deliver or otherwise distribute. In Santiago, however, appellants were found to be in possession of a large quantity of heroin with a street value of approximately $250,000 in addition to a quantity of empty glassine bags, rubber bands, razor blades and other assorted drug trafficking paraphernalia. In that case, the police search yielded a bundle of twenty-five packets of heroin, seventeen other similar bundles and two pouches containing together approximately one half pound of heroin. Id., 462 Pa. at 223, 340 A.2d at 442. Among the factors there considered by the Supreme Court in determining whether the evidence warranted the inference of possession with intent to deliver were the quantity of the drugs, their street value, the manner of packaging and the presence of paraphernalia used in drug trafficking. Id., 462 Pa. at 223, 340 A.2d at 444. The extent of the physical evidence seized in this case was a small box in which eleven glassine packets containing a white powder were found. Chemical analysis established the contents of the packets to be adulterated heroin with a total weight of 15.3 grams.

In Commonwealth v. Smith, supra, we indicated that such large quantities of a controlled substance, namely, heroin, need not be shown in order to permit the fact finder to infer that the heroin was possessed with intent to deliver. There, police seized sixty-seven glassine bags of heroin, a plastic bag of uncut heroin and an open foil of heroin with a combined street value of approximately $3,000. Police found, in addition, drug paraphernalia suitable to the preparation of heroin for street sale. Further, some $575 in bills of large denomination were found under a mattress in the bed on which the girlfriend of appellant was sleeping. Appellant, himself, was injecting the drug into his arm at the time the police entered the house and was situated approximately two or three feet from the table on which the contraband was located. These circumstances were held sufficient to allow the inference that appellant possessed the heroin with the intention of using it for other than personal needs. Again, this case involves only eleven packets of the heroin substance which had a net weight of 15.3 grams. The police search of appellee, his companions and the Cadillac revealed no other drug paraphernalia, cutting implements, substances or dilutants, nor was any more heroin discovered. Indeed, there was no other evidence that appellee had delivered any heroin or intended to deliver the quantities of heroin seized prior to his arrest.

The reliance of the Commonwealth upon Commonwealth v. Hill, 236 Pa.Super.Ct. 572, 346 A.2d 314 (1975), affirmed in part, vacated in part, 481 Pa. 37, 391 A.2d 1303 (1978) is misplaced. We find Hill to be inapposite to the instant case.

Nor are we pursuaded by the citation of appellant to Commonwealth v. Wright, supra (Spaeth, Hoffman, JJ., dissenting). In Wright, the arresting police officer stopped the vehicle of the defendant because he was driving too slowly and was interfering with the flow of traffic. When the defendant was unable to produce a registration card, the police officer requested permission to check the vehicle serial number on the door jamb against his list of stolen vehicles and, while doing so, noticed in plain view on the floor of the car, a number of glassine packets containing a white powder which were bound together with a rubber band. Suspecting their contents to be heroin, the officer arrested the defendant. Id., 234 Pa.Super.Ct. at 85, 86, 339 A.2d at 105. Subsequent chemical analysis of the twenty-five packets in the bundle established their contents to be a mixture of heroin and quinine, each packet weighing between 1.3 grains and 1.9 grains with the composite weight of the bundle being approximately two grams. Id., 234 Pa.Super.Ct. at 90, 92, 339 A.2d at 107, 108. Expert testimony was presented in Wright to establish that the appellant was neither a heroin addict nor a narcotic user, which evidence provided substantial support for the inference that the heroin was possessed with the intent to deliver.

The instant case is clearly distinguishable from the Wright case in that the Commonwealth here introduced into evidence only eleven packets (albeit each of greater weight), less than half of the number of packages of heroin submitted in Wright, and failed to produce any evidence as to whether the appellee was an addict or a user of heroin. Expert opinion testimony elicited to determine whether the quantity of heroin seized from a defendant was consistent with possession for personal use or with sale or distribution has been admitted in a number of cases to support the inference that the controlled substance was possessed with the intent to deliver or distribute. See, e.g., Commonwealth v. Wallace, 265 Pa.Super.Ct. 91, 401 A.2d 816 (1979); Commonwealth v. Sojourner, 268 Pa.Super.Ct. 472, 408 A.2d 1100 (1978), affirmed on rehearing, modified on other grounds, 268 Pa.Super.Ct. 488, 408 A.2d 1108 (1979); Commonwealth v. Harris, 241 Pa.Super.Ct. 7, 359 A.2d 407 (1976); Commonwealth v. Brown, 232 Pa.Super.Ct. 463, 335 A.2d 782 (1975). Not only did the Commonwealth fail to produce any evidence at trial to indicate whether appellee was a heroin user or addict, it neglected to present any evidence to establish whether possession of eleven bags of heroin containing in all 15.3 grams would be a quantity consistent with the personal needs of an addict or a user over some certain span of time or, whether possession of eleven bags would be more consistent with delivery for sale on the street rather than with its retention for personal use. Compare Commonwealth v. Sojourner, supra, 268 Pa.Super.Ct. at 477, 408 A.2d at 1102 (the expert testimony of a police officer experienced as an undercover narcotics agent that a person who had fifty bags of heroin more than likely had them for sale was sufficient to permit the jury to infer intent to deliver); and Commonwealth v. Brown, supra, 232 Pa.Super.Ct. at 466, 335 A.2d at 784 (where appellant possessed three bundles of glassine packets and the bundles contained 25, 25, and 21 packets respectively for a total of seventy-one packets, and an experienced police narcotics agent testified that street vendors of heroin frequently package their product in bundles of twenty-five glassine envelopes, such evidence was sufficient to support the inference that the possessor intended to distribute the drugs rather than retain them for personal use).

We acknowledge that in Brown, supra, we stated that even without the expert testimony it was reasonable for the lower court to conclude there that the possession by an individual of such a large quantity of packets of heroin supported the inference that the possessor intended to distribute the drugs rather than retain them for personal use. The instant case, however, involves far fewer packages of heroin and we believe that, absent additional expert opinion evidence such as that presented in the foregoing cases, the quantity of heroin seized in this case, despite the manner of its packaging, does not clearly support an inference of possession with intent to deliver.

Our decision in Commonwealth v. Wallace, 265 Pa.Super.Ct. 91, 401 A.2d 816 (1979) provides us with additional support for the position we here express. There, the appellant appealed from his conviction on the charge of possession with intent to deliver a controlled substance (heroin) arguing that the evidence presented at trial did not establish that he was a seller of the heroin. In that case, police set up a surveillance of appellant in the Pittsburgh Hill District on the basis of a tip received from a reliable informant, observed appellant on the street for thirty-five minutes, during which time he paced back. and forth within a one block radius, and saw him on two occasions being approached by two different males, both of whom exchanged articles with him. After the second exchange, the appellant was arrested. A search incident to arrest produced a plastic bag containing fourteen foil packets of white powder. Chemical analysis revealed each packet to contain a half-spoon measure (five grams) of a substance containing heroin. The expert testimony of an officer who had several years of experience in the narcotics division of the Pittsburgh Police Department indicated that the quantity of heroin found on the person of the appellant was large enough to indicate that he was in the business of selling heroin rather than retaining it for his own personal use. The within case differs from Wallace in at least three substantial ways. First of all, the Commonwealth was unable to produce such expert testimony. Secondly, a far greater quantity of heroin was involved in Wallace than in this case. And, finally, the activity of the defendant just prior to his arrest supported the inference that he possessed the heroin with the intent to deliver a controlled substance. Here, although the Commonwealth exerted a determined effort to qualify the officers who arrested Bagley as experts in the field of narcotics, it did not succeed. Nor was it successful in establishing whether or not the glassine bags seized were the type normally used for the sale of heroin on the street in Chester. What the Commonwealth did establish was that the measure of heroin found in each of the eleven glassine bags was a “New York quarter” which has a value of about $50 and weighs approximately 1.4 grams. This evidence without more was not sufficient to permit a jury to infer that the appellant possessed the heroin with the intent to deliver. The circumstances presented in this case are just as consistent with personal use as with delivery or sale.

The Commonwealth also presented evidence that the relative purity of the contents of the eleven bags of heroin ranged between four percent and eighteen percent and it argues, inter alia, that the unusually high percentage of heroin found in at least one of these bags supports the inference that Bagley possessed the heroin with intent to deliver. In Commonwealth v. Harris, supra 241 Pa.Super.Ct. at 15, 359 A.2d at 411, Judge Hoffman stated, in his dissenting opinion in which Judge Spaeth joined, that the relative purity of seized heroin samples is a factor which may be considered in determining whether the heroin was possessed with intent to deliver. The higher the purity of the heroin seized, the reasoning goes, the more likely that the possessor is a trafficker, since heroin users rarely receive uncut heroin. Id. The Commonwealth in this case failed, however, to establish how many of the bags contained heroin of higher purity than the average packet sold on the street in Chester which the evidence indicated was approximately four percent. Absent evidence as to the number of bags of higher purity, the inference that the heroin was possessed with the intent to deliver is conjecture, since the possibility remains that the variance of the purity in one or another of the bags was an aberration of the heroin cutting process.

We believe that the trial court did not err when it granted the motion of appellant in arrest of judgment on the charge of possession with the intent to deliver a controlled substance for the reason that the evidence presented at trial was not sufficient to permit the jury to infer that the appellee, Owen X. Bagley, had the requisite intent to deliver the heroin he had discarded on the roadside.

Order affirmed.

SHERTZ, J., did not participate in the consideration of this case.

      . Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, No. 64 § 13(a)(30) as amended, 35 P.S. § 780-113(a)(30) (Supp.1981-82).

      . Id. at § 13(a)(16), 35 P.S. § 780-113(a)(16).