author: HESTER, Judge:

text:
    575 A.2d 949
    COMMONWEALTH of Pennsylvania v. Bernard D. RYAN, Jr. Appellant.
    Superior Court of Pennsylvania.
    Submitted April 23, 1990.
    Filed June 5, 1990.

      Kim W. Riester, Pittsburgh, for appellant.
    Maureen A. Flynn, Asst. Dist. Atty., Warren, for Com.
    Before KELLY, HUDOCK and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the May 16, 1989 order denying appellant, Bernard D. Ryan, Jr., relief under the Post-Conviction Relief Act. We affirm.

On June 21, 1982, appellant pled guilty to rape and involuntary deviate sexual intercourse in exchange for a nol pros of charges of burglary. On July 9, 1982, he was sentenced to fifteen to thirty years imprisonment. Appellant filed a timely motion to modify sentence, which was denied on the basis of his significant history of violent crimes, including a prior rape. He did not, however, file a motion to withdraw his guilty plea or a direct appeal.

On November 15, 1982, appellant filed a petition for relief under the Post-Conviction Hearing Act (repealed), alleging that he received ineffective assistance of counsel and that his plea was induced unlawfully in that counsel had informed him that his sentences would be served concurrently. In 1983, he filed a petition for habeas corpus relief with this court. The habeas corpus petition was remanded and denied, together with the PCHA petition, by the trial court on October 18, 1984. Appellant appealed, and we affirmed, concluding that the five issues raised by appellant were without merit since the record established that his plea was not induced unlawfully either by promises from or ineffective assistance of his guilty plea counsel. Commonwealth v. Ryan, 354 Pa.Super. 630, 508 A.2d 343 (1986).

On February 22, 1989, with privately-retained counsel, appellant filed his second petition for post-conviction relief. This appeal followed denial of that petition without a hearing. Appellant’s allegations on appeal all relate to alleged deficiencies in the plea colloquy.

Initially, we note that since this is appellant’s second petition for post-conviction relief, it “will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Commonwealth v. Lawson, 519 Pa. 504, 513, 549 A.2d 107, 112 (1988); see also Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989) (applying Lawson standard of review to second or subsequent petitions filed under the PCRA). This standard is met if the petitioner can demonstrate either that the proceedings resulting in his conviction were so unfair that a miscarriage of justice which no civilized society can tolerate occurred or that he is innocent of the criminal charges.

With this standard in mind, we examine appellant’s allegations. He contends that the guilty plea colloquy demonstrates that: 1) there was no factual basis for the plea; 2) there were no on-the-record admissions of guilt to rape or involuntary deviate sexual intercourse; 3) he received no explanation of his right to petition to withdraw his guilty plea; 4) the definition of reasonable doubt was not explained to him; and 5) he was not informed of his privilege not to testify at trial and that the right not to testify could not be used as an inference of guilt.

Appellant alleges that he never actually admitted to committing the crimes. Since this is a critical element to a valid guilty plea in the absence of other evidence of guilt, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and because a knowing waiver of important constitutional rights also is a critical component of a valid guilty plea, Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 2257 n. 13, 49 L.Ed.2d 108, 114 n. 13 (1976), we conclude that appellant presents allegations that if true, would establish that a miscarriage of justice may have occurred or that he may be innocent of the charges. Accordingly, we will entertain the petition.

Appellant’s eligibility for relief is governed by the provisions of the Post-Conviction Relief Act. 42 Pa.C.S. § 9543 controls appellant’s eligibility for relief under the PCRA and lists four factors that must be met before such relief may be granted. The third factor requires:

(3) That the allegation of error has not been previously litigated and one of the following applies:
(i) The allegation of error has not been waived.
(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

42 Pa.C.S. § 9543(a). Section 9544 of the PCRA provides in relevant part that an issue is waived if the petitioner failed to raise it and if it could have been raised in a habeas corpus proceeding or any other proceeding actually conducted.

In the present case, appellant could have raised all of the - issues presented herein in his prior PCHA petition. Accordingly, the issues have been waived under section 9544. The waiver in this instance results from appellant’s failure to raise the issues in his prior post-conviction proceedings. Since the waiver was not during pretrial, trial, post-trial or direct appeal proceedings, section 9543(a)(3)(iii) is not applicable. Accordingly, appellant has waived the issues presented herein unless 9543(a)(3)(ii) applies.

Section 9543(a)(3)(ii) does not apply because appellant is guilty. The plea colloquy reads in relevant part:

BY THE COURT: Were there any promises given to you for your plea on the charge of rape and involuntary deviate sexual intercourse other than the charge that the Commonwealth may not prosecute you on the burglary?

BY MR. RYAN: No promises whatsoever.

BY THE COURT: Now, you were arraigned in Court on April 15, 1982, you were given your constitutional rights at that time and you entered a plea of not guilty. Do you recall your constitutional rights given to you at that time by the Court?

BY MR. RYAN: Yes, I do, Your Honor.

BY THE COURT: Now specifically, Mr. Ryan, you are charged concerning the count of rape that you did on or about February 21, 1982, in Brokenstraw Apartments at Brokenstraw Township of Warren County, engage in sexual intercourse with another person not your spouse, forcible compulsion by fright or forcible compulsion that would prevent resistance of a person of reasonable resolution in that you engaged in sexual intercourse with Patricia Lynn Colisimo, not being your spouse forcible compulsion and or by threatening to kill the victim with a knife____ The count of involuntary deviate intercourse charges that you did on the same date and time and place engage in sexual, deviate sexual intercourse with forcible compulsion or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution in that you forced Patricia Lynn Colisimo to perform oral sex upon you by forcible compulsion or by threatening to kill her____ Mr. Ryan, you tell the court in your own words to the best of your recollection what you did on or about February 21, 1982 that brought these charges upon you?

BY MR. RYAN: Well, I was drinking very heavily. I entered the apartment and I did commit the offenses charged.

BY THE COURT: You define for the Court what you consider to be the definition of rape.

BY MR. RYAN: Rape is sexual intercourse by penetration of the penis into the vagina.

BY THE COURT: And in that date of February 21, 1982, did you have sexual intercourse with Patricia Lynn Colisimo?

BY MR. RYAN: Yes, Your Honor.

BY THE COURT: And did you have any permission from her to have the sexual intercourse?

BY MR. RYAN: No, Your Honor.

BY THE COURT: And did you threaten her to have — to kill her with a knife if she did not engage in sexual intercourse with you?

BY MR. RYAN: I made — I may have, Your Honor. I really A — I probably did. I don’t remember saying it.

BY THE COURT: And the charge of deviate — involuntary deviate sexual intercourse; you tell the Court what you did that brought that charge upon you?

BY MR. RYAN: I’m not really certain if that actually happened. I assume it did happen. I assume I did do that. There is gaps in my memory. I remember gagging her. I remember certain portions all the events of the evening. I don’t doubt—

BY THE COURT: You define your definition of involuntary deviate sexual intercourse?

BY MR. RYAN: That would be oral sex performed on me by the—

BY THE COURT: And did you — Did the victim, Patricia Colisimo enter into this activity of deviate sexual intercourse voluntarily?

BY MR. RYAN: No, Your Honor.

Notes of Testimony, 6/21/82, at 4-8 (emphasis added).

The plea court then discussed various constitutional rights that appellant relinquished by pleading guilty. The notes of testimony at the arraignment demonstrate that appellant’s constitutional rights were discussed extensively with him.

Thus, contrary to his allegations on appeal, appellant stated unequivocally during his plea colloquy that he committed the offenses. He stated that he raped the victim and that she did not consent. He admitted to gagging her. He equivocated only when asked if he threatened to kiil her, stating that he did not remember threatening to kill her, but “probably did” so. This is not a denial of the relevant charges, it is only (arguably) a denial of threatening to kill her. Further, he did not deny forcing the victim to engage in oral sex and stated only that he did not remember that specific event since he only remembered portions of his vicious assault on the victim. He went on to admit, however, that the victim was forced to perform oral sex against her will.

Justice McDermott has stated the following regarding the entry of a guilty plea:

A guilty plea is an acknowledgment by a deféndarit that he participated in the commission of certain acts with a criminal intent. He acknowledges the existence of the facts and the intent. The facts that he acknowledges may or may not be within the powers of the Commonwealth to prove. However, the plea of guilt admits that the facts and intent occurred, and is a confession not only of what the Commonwealth might prove, but also as to what the defendant knows to have' happened.
A guilty plea is not a ceremony of innocence, it is an occasion where one offers a confession of guilt. If a defendant voluntarily, knowingly, and intelligently wishes to acknowledge facts that in themselves constitute an offense, that acknowledgment is independent of the procedures of proving or refuting them. How they would be proved, what burdens accompany their proof, what privileges exists to avoid their proof, what safeguards exists to determine their accuracy, and under what rules they would be determined, by whom and how, are irrelevant. The defendant is before the court to acknowledge facts that he is instructed constitute a crime. He is not there to gauge the likelihood of their proof, nor to weigh them in the light of the available procedures for their proof. He is there to voluntarily say what he knows occurred, whether the Commonwealth would prove them or not, and that he will accept their legal meaning and their legal consequences.

Commonwealth v. Anthony, 504 Pa. 551, 558-59, 475 A.2d 1303, 1307-08 (1984).

Since we believe that appellant’s statements at the colloquy establish that he actually committed the crimes to which he pled guilty, section 9543(a)(3)(h) does not apply to overcome his waiver of the issues presented. Appellant is not innocent, and he is not eligible for relief under the PCRA.

Order affirmed.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    576 A.2d 53
    James A. DUTTRY, Appellant, v. Lisa TALKISH, Appellee.
    Superior Court of Pennsylvania.
    Submitted Feb. 12, 1990.
    Filed May 31, 1990.
    James A. Duttry, pro se.
    Lisa Talkish, pro se.

      Before WIEAND, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the May 17, 1989, order of the Court of Common Pleas of Erie Count denying a motion for the appointment of counsel by the appellant, James A. Duttry. We quash.

The record reflects the occurrence of the following events: On April 13, 1989, the appellant, an inmate in the State Correctional Institution at Pittsburgh, obtained an order of court permitting him to file a complaint seeking partial custody and visitation rights to his minor child (Erika). The sheriff made service of the complaint on April 17, 1989, and therein the appellant alleged that he was the natural father of the then 12-year-old child born out of wedlock to one Lisa Talkish. The child and Ms. Talkish reside with her present husband, Ernest Talkish.

In seeking partial custody and visitation rights, the appellant averred in his complaint that the best interest and permanent welfare of the child would be served by granting him the relief requested. In particular, the appellant asserted:

a) The plaintiff is the child’s natural father, and has an unqualified right of family autonomy.
b) The child Erika Duttry had visited her father, in prison, until four years ago.
c) The father and child maintained a relationship through letters, phone calls, and visits until the mother made it impossible.
d) The child should be permitted to maintain a relationship with her father [so] that. the child has a proper psychological development.
e) The plaintiff has received certain and specific informations [sic] concerning excessive illegal school absences and of school absences which are deemed not to be normal; and
f) The plaintiff has received certain and specific information concerning excessive alcohol drinking before the cild [sic] and in the household of the child.
g) The father desires to fulfill his parental responsibilities and continue to be a significant person in his daughter’s life.
h) The father also desires to protect his parental rights and his daughter’s rights by utilizing all available means to maintain a contact with his child.

Paragraph 9, subparagraphs (a)-(h).

To resolve the claims of the appellant, the court ordered a hearing for 10:30 a.m. on the 12th of June, 1989, at the Custody Office of the Court House. On May 15, 1989, the appellant submitted a motion for the appointment of counsel since his indigency precluded him from securing private counsel to “prepare ... or to conduct legal arguments in open court in which to ... protect his parental rights and [the] right of the child.” Paragraph 2. The appellant’s request for the appointment of counsel was denied by the court below, which believed that to do so would have opened the flood-gates to every indigent’s request for counsel in all cases, a situation thought by the court to be an “unduly burdensome” expense to the public. Also, the court below held that such a right and duty have not been extended to the field of civil law from the criminal arena. This appeal followed, and the appellant, acting pro se, was granted the right to proceed in forma pauperis.

Intertwined with the appellant’s request that we review the denial of his motion for the appointment of counsel to aid him in his efforts to obtain partial custody/visitation rights of his minor child is the appealability of the order in question.

In this Commonwealth, the jurisdiction of the appellate courts is fixed by statute. As is applicable instantly, 42 Pa.C.S. § 742 provides in relevant part that:

The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved____

The finality of an order under Section 742 has been interpreted to mean, although not literally, Foulke v. Lavelle, 308 Pa.Super. 131, 135-136, 454 A.2d 56, 58 (1982), that the order either ends the litigation or disposes of the entire case. Gerber v. Weinstock, 308 Pa.Super. 11, 13-14, 453 A.2d 1043, 1044 (1982). Phrased differently, we look to “a practical rather than a technical construction” of an order. On this subject, in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978), our Supreme Court, quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), wrote:

In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. at 546, 69 S.Ct. at 1226, 93 L.Ed. at 1536.
We applied Cohen in Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975), where we said: “Whether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.” We have also said that if the practical consequence of the order by the trial court is effectively to put an appellant “out of court” the order will be treated as final. Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 [A.2d] 353, 355 (1968). Similarly, an order is “final” if it precludes a party from presenting the merits of his claim to the lower court. Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970).

483 Pa. at 73, 394 A.2d at 545.

The “collateral order” exception to the final judgment rule enunciated in Cohen was clarified in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), to require that to fit the exception, “ ‘the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.’ ” Lariscey v. United States, 861 F.2d 1267, 1269 (Fed.Cir.1988), quoting Coopers & Lybrand, supra, 437 U.S. at 468, 98 S.Ct. at 2457.

Of interest to this Court is that in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), the Supreme Court held that orders disqualifying counsel in civil cases are not collateral orders subject to immediate appeal. In doing so, the Court remarked:

We acknowledge that an order disqualifying counsel may impose significant hardship on litigants. Particularly where the grounds for disqualification are troubling, this hardship may tempt courts of appeals to assert jurisdiction pursuant to § 1291. But in the words of Judge Adams:
“[I]t would seem to us to be a disservice to the Court, to litigants in general and to the idea of speedy justice if we were to succumb to enticing suggestions to abandon the deeply-held distaste for piecemeal litigation in every instance of temptation. Moreover, to find appeal-ability in those close cases where the merits of the dispute may attract the deep interest of the court would lead, eventually, to a lack of principled adjudication or perhaps the ultimate devitalization of the finality rule as enacted by Congress.” Bachowski v. Usery, 545 F.2d 363, 373-374 (CA3 1976).

472 U.S. at 440, 105 S.Ct. at 2766. Accord Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).

Instantly, “it is quite clear to us that an order disqualifying a party’s choice of counsel is not easily distinguishable from an order denying counsel.” See Smith-Bey v. Petsock, 741 F.2d 22, 25 (3rd Cir.1984). As such, given the credence by our Supreme Court in Pugar v. Greco, supra, to the Cohen criteria, we see no reason not to adhere to the test discussed in Cohen, Coopers & Lybrand and Richardson-Merrell in determining the finality of the order under question here.

An examination of each of the Cohen exceptions leads this Court to conclude, as has a majority of the circuits that have addressed the issue, that orders denying motions for the appointment of counsel in civil cases are not subject to interlocutory appeals.

Under the first tier of the Cohen exceptions, the order from which an appeal is sought must conclusively determine the disputed question. This first tier, “stated in Coopers as ‘must conclusively determine the disputed question,’ was restated in Firestone as ‘the challenged order must constitute a complete, formal and, in the trial court, final rejection ... of a claimed right____’” Miller v. Simmons, 814 F.2d 962, 965-66 (4th Cir.1987), cert. denied, 484 U.S. 246, 108 S.Ct. 46, 98 L.Ed.2d 203 (1987).

This Court is unwilling at this stage of the civil action to view the order of the court below as one which conclusively determines the issue in question. As the Sixth Circuit Court of Appeals has written on this subject, we take guidance from its observations that:

... orders denying appointment of counsel should be presumed tentative because these motions are sometimes made before filing a complaint, ... and more frequently are made with the filing of a pro se complaint and with little or no showing of plaintiff’s efforts to obtain counsel. Also, there is very little in the record upon which the district judge can, for this purpose, determine whether the claim has merit. We believe a practical approach to this issue of appealability, as the Supreme Court directs in Cohen, leads to the conclusion that an order denying appointment of counsel does not conclusively determine the disputed question prior to the district court’s final disposition of the case unless the district court’s order was expressly made final. 337 U.S. at 546, 69 S.Ct. at 1225. Accordingly, we determine that orders denying appointment of counsel in these cases cannot, on this appeal, be said to have conclusively determined the disputed question.

Henry v. City of Detroit Manpower Dept., 763 F.2d 757, 762 (6th Cir.1985). Accord Miller v. Simmons, supra, 814 F.2d at 965 (Order denying appointment of counsel in civil case was interlocutory since it is denied without prejudice, and, thus, could be reconsidered, at a later time, in the exercise of the district court’s discretion if the facts warranted it).

At bar, there is no indication from the face of the order appealed that it was entered with prejudice against the appellant’s pro se motion. Therefore, it is consistent with the teaching of Cohen to conclude that an order denying the appointment of counsel does not conclusively determine the disputed question prior to the court below’s final disposition of the case unless its order was expressly made final. 337 U.S. at 546, 69 S.Ct. at 1225; see also Henry, supra, 763 F.2d at 762.

The second of the Cohen criteria is unavailing to the appellant in that the denial-order is not independent of the issues to be tried. As stated by the United States Supreme Court in evaluating the non-collateral nature of an order disqualifying counsel in civil cases, “Only after assessing the effect of the final judgment could an appellate court decide whether the client’s right had been prejudiced.” Richardson-Merrell, supra, 472 U.S. at 439, 105 S.Ct. at 2765. This is no less germane here.

We believe that, in light of the profusion of motions and orders prepared and submitted to the court below by the appellant, it is justifiable to believe that this pro se litigant, who had the ability to perfect an immediate appeal upon the denial of the appointment of counsel by the Court of Common Pleas, would be equally adept at raising the denial of the appointment of counsel should he be unsuccessful on the merits and take a final appeal in the matter. See Miller, supra, 814 F.2d at 967. More to the point, the appellant has not demonstrated that circumstances exist which would preclude him from presenting his claim to this Court along with his appeal from the Court of Common Pleas should the ultimate issue of his civil action not be resolved in his favor. Id.; Appleby v. Meachum, 696 F.2d 145, 146 (1st Cir.1983).

For the reasons just stated, we also hold that the third tier of the Cohen test, i.e., whether the denial of immediate review would render impossible any review whatsoever, has not been satisfied. Firestone, supra, 449 U.S. at 376, 101 S.Ct. at 674.

Although not argued by the appellant, we would add that any contention that the failure to appoint counsel would be the “death knell” of the case would not alter our decision. In responding to a similar argument, raised in the context of the district court’s denial of class certification and the plaintiff’s immediate appeal of such an interlocutory order, the United States Supreme Court stated in Cooper & Lybrand:

In addressing the question whether the “death knell” doctrine supports mandatory appellate jurisdiction of orders refusing to certify class actions, the parties have devoted a portion of their argument to the desirability of the small-claim class action. Petitioner’s opposition to the doctrine is based in part on criticism of the class action as a vexatious kind of litigation. Respondents, on the other hand, argue that the class action serves a vital public interest and, therefore, special rules of appellate review are necessary to ensure that district judges are subject to adequate supervision and control. Such policy arguments, though proper for legislative consideration, are irrelevant to the issue we must decide.
There are special rules relating to class actions and, to that extent, they are a special kind of litigation. Those rules do not, however, contain any unique provisions governing appeals. The appealability of any order entered in a class action is determined by the same standards that govern appealability in other types of litigation. Thus, if the “death knell” doctrine has merit, it would apply equally to the many interlocutory orders in ordinary litigation — rulings on discovery, on venue, on summary judgments — that may have such tactical economic significance that a defeat is tantamount to a “death knell” for the entire case.
Though a refusal to certify a class is inherently interlocutory, it may induce a plaintiff to abandon his individual claim. On the other hand, the litigation will often survive an adverse class determination. What effect the economic disincentives created by an interlocutory order may have on the fate of any litigation will depend on a variety of factors.
* * * * *
Accordingly, we hold that the fact that an interlocutory order may induce a party to abandon his claim before final judgment is not a sufficient reason for considering it a “final decision” within the meaning of § 1291.

437 U.S. at 470, 98 S.Ct. at 2458 (Footnotes omitted).

Our review of the documents included in the record, in addition to the brief submitted by the appellant, all of which we find (as to content and form) to have been exemplary for a pro se litigant, indicate no complex issue sufficient to require the designation of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986). Nor are we confronted with a scenario in which an indigent is being faced with the termination of his parental rights. If such were the case, our approach to the matter, as well as to its resolution, might be different. See, e.g., State v. Jamison, 251 Or. 114, 444 P.2d 15, 17 (1968) (Indigent parent at termination proceeding must be supplied with counsel at public expense); In re Rodriquez, 34 Cal.App.3d 510, 110 Cal.Rptr. 56 (1973) (Statute and Due Process required appointment of counsel to indigent parent where termination of parental rights involved); Danforth v. State Dept. of Health & Welfare, 303 A.2d 794 (Me.1973) (Statute gives right to indigent parents to counsel in termination cases); In re Adoption of R.I., 455 Pa. 29, 312 A.2d 601 (1973) (Indigent parent was entitled to the appointment of counsel in an involuntary termination of parental rights case, or, at the very least, to be told of one’s right to free counsel).

We do not find that the denial of the appellant’s request for the appointment of counsel to aid him in his effort to secure partial custody/visitation rights has such cryptic connotations, as in termination, paternity, dependency or involuntary commitment hearings, to authorize the immediacy of his denial-order for appellate review. Compare In Interest of Michael Y., 365 Pa.Super. 488, 530 A.2d 115 (1987) (A party at a dependency hearing has right to be apprised of right to counsel, and free counsel if indigent); In Interest of S.N.W., 362 Pa.Super. 295, 524 A.2d 514 (1987) (Juvenile Act provides for the appointment of counsel for indigent parent in a dependency hearing); In re Hutchinson, 500 Pa. 152, 454 A.2d 1008 (1982) (Right to effective counsel in involuntary commitment proceedings under § 304 of the Mental Health Procedures Act); Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982) (Indigent defendants in civil paternity actions have a constitutional right to appointed counsel).

Accordingly, for the reasons herein stated, we hold that the order appealed is interlocutory in nature, and, because it does not satisfy any of the Cohen exceptions to the finality rule, we quash.

Order quashed. Jurisdiction relinquished.

WIEAND, J., concurs in the result.

      . From the record, it appears that all of the appellant’s petitions, motions and briefs have been filed pro se, save for a petition for review in the nature of mandamus submitted by one “BARS INCORPORATED MEMBER WCM — Inmate Legal Assistance”.

      . The appellant does not indicate in his brief to us what charge(s) he was convicted of committing. However, he does disclose that "since his imprisonment in 1978, the Appellant maintained communications and received visits from his daughter ... until the mother[, during the past three to four years,] gradually terminated those parental rights of the Appellant.....”

      . In the complaint, the appellant avers that “[h]e is possibly still married to the mother of the child due to certain laws under the Pennsylvania Mental Health Procedure Act. Specifically: 50 P.S. § 3511.” Paragraph 3. We need not pass on the validity of this assertion to resolve the case at hand.

      . It is interesting to note that, according to the appellant’s brief, the appellant had representation in his effort to secure partial custody and visitation rights on a prior occasion; to-wit;
      Over the passing years since his imprisonment in 1978, the Appellant maintained communications and received visits from his daughter Erika, until the past three to four years that her mother, Lisa Talkish, gradually terminated those parental rights of the Appellant.....
      Pursuant to the aforesaid events, and the Appellant having great concern for the well being of his daughter Erika, he on or about December, 1986, wrote letters to the Neighborhood Legal Services in Pittsburgh in request for aid in matter of his daughter Erika, which thereby resulted in the Erie County Bar Association requesting the law firm of "Taggart & McBride”, Attorneys at Law, to represent the Appellant in [the] matter of the child Erika. The law firm of Taggart & McBride thereafter filed on behalf of the Appellant a “Complaint for Partial Custody and Visitation” rights in [the] matter of child Erika, which legal action thereto was assigned Erie County Court of Common Pleas Civil Division No. 2706-A-1987. After some several proceedings being there had in case matter, [sic] Court Order issued directing that on August 24, 1987, at 9 o’clock a.m. in the Office of of [sic] the Custody Counselor of Erie County, that a hearing was to be there held in matter of Partial Custody and Visitation rights in the matter of child Erika. The Appellant not being taken to the hearing in the matter of his child Erika, in protest thereto, climbed on top of a building in the prison, and which actions by the Appellant subsequently resulted in his transfer to "Fairview State Hospital” by prison officials. (Apparently “the actual hearing never took place”, as conveyed to the Appellant by the law firm Taggart & McBride, via Carol Morehouse, SSJ; and on April 5, 1988, the Appellant received further legal communication from Carol Morehouse, SSJ, that: “I believe the court would be very concerned over your mental stability and that the recent events surrounding the custody hearing we had scheduled would, in fact, increase that concern. Therefore, it is my opinion that there is no point in attempting to pursue your right to visitation any further, at this time.’’)
      (Appellant’s Brief at 2-3)

      . See Holt v. Ford, 862 F.2d 850, 851 (11th Cir.1989), for a listing of the circuits, wherein 28 U.S.C. § 1291’s provision that the Courts of Appeals shall have jurisdiction over “all final decisions of district courts" was being analyzed as is our 42 Pa.C.S. § 742 finality statute.

      6. We have no indication of record that the appellant made any attempt to obtain counsel, as he had done in 1986 in a previous partial custody/visitation case involving the same minor child. See note 4, supra.

      . The form and content are as good as any this Court has seen prepared by counsel.

      . Custody (i.e., visitation) is an ongoing process which may be modified “at any time the best interest of the child requires such.” Karis v. Karis, 518 Pa. 601, 607-08, 544 A.2d 1328, 1331 (1988); Lewis v. Lewis 271 Pa.Super. 519, 522, 414 A.2d 375, 378 (1979).

      . Although in May v. Sharon, 377 Pa.Super. 261, 546 A.2d 1256 (1988), a panel of this Court reviewed the denial of counsel sought by the appellant to aid him in his effort to sue criminal defense counsel, it did so without addressing the interlocutory nature of such an order. As such, we do not consider May to be controlling in the case at bar. We restrict it to the facts of that case.
      It should be noted that the issue of jurisdiction can be raised sua sponte. See May v. Turner Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981). And, as such, we have done so in the case at bar to address the preliminary question of jurisdiction, which is our right and obligation as an appellate court.


author: CERCONE, Judge.

text:
    576 A.2d 59
    Thomas N. LOGSTON and Foresta Ann Logston, his wife, Judson Riley Anderson and Marlene Anderson, his wife J.C. Carp, and Penn-Craft Community Association, by Joseph Shaw, trustee ad litem v. PENNDALE, INC., a Pennsylvania corporation and Mary Jo Sinosky, individually and t/d/b/a Mr. G’s Family Ties, Appellants.
    Superior Court of Pennsylvania.
    Argued March 27, 1990.
    Filed May 30, 1990.

      Thomas A. Bowlen, Uniontown, for appellants.
    John M. Purcell, Uniontown, for appellees.
    Before TAMILIA, KELLY and CERCONE, JJ.
   CERCONE, Judge.

The trial court, after a non-jury trial, imposed a perpetual injunction restraining the appellants, Penndale, Inc., a Pennsylvania corporation, and Mary Jo Sinosky, individually, and trading and doing business as Mr. G’s Family Ties, from using a lot in violation of the restrictive covenants running with the land. Specifically, the appellants are restricted from selling alcoholic beverages at the restaurant located on lot number 54 in the Village of Penn-Craft. Appellants timely filed a motion for post-trial relief which the trial court denied. This is an appeal from the denial of that relief. We affirm.

The facts of this case, as determined by the trial court, are as follows. The Penn-Craft community was developed by the American Friends Services Community organized by the Quakers. It began as an experiment of co-operative development whereby the unemployed worked together to build their own homes, produce their own food, and develop new skills. The goal was to achieve economic stability without total reliance on the local coal industry for employment. The cornerstone of the development was a co-operative store owned by the members of the community. This store provided clothing and food as well as dairy and stock feed necessities.

On December 12, 1937, the real property was initially conveyed from American Friends Service Committee, Inc. to Friends Services, Inc. On January 20, 1938, the first official community plan of the Penn-Craft tract set forth fifty-four separate numbered lots. On April 23, 1946, all of the residential lots, lots numbered 1 through 53 were conveyed by Friends Service, Inc. to A. Hurford Crosman. The deed conveying these lots included, inter alia, the following restrictions:

(c) That no intoxicating liquor of any kind shall be sold or kept for sale or manufactured for sale on said premises.
(g) That these restrictions shall remain in force for a period of twenty years from the date of this agreement and thereafter perpetually unless and until revoked or modified after that time by a majority vote of the persons then holding deed to Lots in the portions of the Penn-Craft Tract to which these restrictions apply, who are at that time residing on their Lots, such deed holders to have one vote for each such Lot as laid out on the Plan held by them respectively; all of which the grantee by the execution hereof, hereby covenants for himself, his heirs, executors, administrators and assigns to keep and perform as covenants running with the land.

The deed further stated:

1. In the event that Friends Service, Inc. should in the future lay out some other portions of the land known as the Penn-Craft Tract ... in a manner similar to the lots herein referred to, it shall impose restrictions, similar to those herein referred to, upon all such lots which are to be used for home sites, and Homesteaders, whether leaseholders or owners thereof, acquiring such lots, shall become members of the Community Association hereinafter provided for. Until Friends Service, Inc. lays out such other portion of the tract in lots ready for development, however, no restrictions of any kind shall bind the other portions of the Penn-Craft Tract.

On the same date as the above deed, April 23, 1946, these fifty-three lots were reconveyed from A. Hurford Crosman to Friends Services, Inc. The deed reconveying these lots contained a clause referring to the covenants in the prior deed: “all of which the grantee by the execution hereof, hereby covenants for itself, its successors and assigns to keep and perform as covenants running with the land.”

On August 14, 1946, Friends Services, Inc. platted and subdivided the tract of land by filing a map and plat of said tract. The lot numbered 54 was marked on the plan as “Co-op Store Site,” and “unrestricted.” On February 7, 1947, the Friends Service Inc. conveyed lot 54, the co-op store site, to the Penn-Craft Cooperative Association. There were four restrictions in the deed conveying this property. They included, inter alia:

(c) that no intoxicating liquor of any kind shall be sold or kept for sale or manufactured for sale on said premises.

All succeeding deeds which conveyed lot 54 contained the same four restrictions.

On March 9, 1948, a second plan was recorded setting forth the original fifty-four lots and five additional lots. The lot numbered 54 was no longer marked as the co-operative store site, nor was it marked “unrestricted.” On May 14, 1951, the initial deed for the other community oriented properties, i.e. the trade center and the community center, also contained the four restrictive clauses included in the deed conveying lot 54. On November 1, 1952, a third plan was recorded. Again, there was no reference to lot number 54 as being the co-operative store nor being “unrestricted.” However, the record reveals that the lot was at all times used as a non-residential lot.

On July 10, 1985 there was a conveyance of lot 54 to appellant, Penndale, by a deed which included the above-mentioned four restrictions. However, on February 19, 1987, Penndale recorded a corrective deed which stated: “This is a corrective Deed since it was never intended that any restrictions be placed on the property at the original time of conveyance.” It was this unilateral removal of the four restrictions by appellant, Penndale, in the corrected deed along with the application for a liquor license to be used in the restaurant now on lot 54, that prompted the appellees to file a complaint in equity for injunctive relief.

Appellants raise the following four issues for our review: whether the trial court erred (1) in concluding that the restrictive covenant pertaining to intoxicating liquor runs with the land; (2) in failing to conclude that the restrictions in the deed pertaining to intoxicating liquor are personal in nature; (3) in concluding that the character of the neighborhood as developed by the American Friends Service Committee and organized by the Quakers in the 1930’s remains the same because descendants of some of the original developers reside there; and (4) in concluding that the sale of alcoholic beverages at the appellants’ restaurant would have any affect on the use and enjoyment of neighboring residential properties. We will consider each issue seriatim.

Initially, we note that our standard of review is very narrow. As we stated in Waksmunski v. Delginis, 391 Pa.Super. 37, 570 A.2d 88 (1990):

We are constrained by a narrow standard of review and are bound by the trial court’s determination pertaining to the credibility of the witnesses and the weight to be accorded the evidence:
Appellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion. The scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious, (citations omitted)

Id. 391 Pa.Super. at 43, 570 A.2d at 91-92, quoting Hostetter v. Hoover, 378 Pa.Super. 1, 6, 547 A.2d 1247, 1250 (1988).

Appellants combine their first two arguments. We will likewise consider these issues together. Specifically, appellants contend that the trial court erred in concluding that the restrictive covenant pertaining to intoxicating liquor runs with the land as opposed to being personal in nature. Covenants, to run with the land, ordinarily must affect the land and are intended to pass with it, and covenants which are merely personal do not so run. Caplan v. City of Pittsburgh, 375 Pa. 268, 100 A.2d 380 (1953). In construing a restrictive covenant, we must ascertain the intentions of the parties by examining the language of the covenant in light of the subject matter thereof, the apparent purpose of the parties, and the conditions surrounding execution of the covenant. Gey v. Beck, 390 Pa.Super. 317, 568 A.2d 672 (1990). A covenant that the premises involved shall not be used for the sale of intoxicating liquors has been held to run with the land. Benner v. Tacony Athletic Association, 328 Pa. 577, 196 A. 390 (1938); Appeal of J. C. Grille, Inc., 181 Pa.Super. 456, 124 A.2d 659 (1956). No formal or specific technical language is required to set forth a covenant running with the land, nor is it required that the covenant be expressed as such. Electric City Land & Improvement Company v. West Ridge Coal Company, 187 Pa. 500, 511, 41 A. 458, 462 (1898) cited with approval in Mock v. Hoffman, 27 Pa.D. & C.3d 169 (1980). Restrictive covenants which restrict the use of property, although not favored by the law, are legally enforceable. Grasso v. Thimons, 384 Pa.Super. 593, 559 A.2d 925 (1989) citing Morean v. Duca, 287 Pa.Super. 472, 430 A.2d 988 (1981). Restrictive covenants are to be strictly construed against persons seeking to enforce them and claiming benefit thereof and in favor of the free, unrestricted use of property. Covey v. Gross, 377 Pa.Super. 580, 547 A.2d 1214 (1988).

The express words of the restrictive covenant in each of the deeds conveying lot 54, state:

(c) that no intoxicating liquor of any kind shall be sold or kept for sale or manufactured for sale on said premises.

The common reading of this language indicates that there is a prohibition of the sale of intoxicating liquor on lot 54. This terminology not only appeared in the first deed conveying lot 54, but also was set forth in every subsequent deed, including the initial deed that conveyed the property to the appellants. The restrictive covenants were not removed until the appellants, sua sponte, removed the language in the “corrective deed” filed almost two years after the property was originally transferred to them. Appellant Sinosky’s testimony that she was not aware of the covenant when the property was initially transferred to appellants is of no moment. A provision in a deed restricting the use of land binds successive owners thereof, regardless of the grantee’s knowledge of the restriction. Appeal of J.C. Grille, supra.

Appellants correctly point out that the initial map and plat of the Penn-Craft tract indicated that lot 54 was the “Co-op Store Site,” and “unrestricted.” However, we note that the second and all subsequent plans were not so marked. Further, the fact that every deed conveying lot 54 contained the restrictive covenants supports the trial court’s conclusion that under the circumstances presented, the covenants run with the land, continue indefinitely and are binding on all successors in title. We find no abuse of discretion nor error of law in the trial court’s decision.

Appellants’ next contention is that the trial court erred in concluding that the character of the neighborhood as developed by the American Friends Service Committee and organized by the Quakers in the 1930’s remains the same because descendants of some of the original developers reside there. Appellants argue that the nature of the community has moved away from the Quaker philosophy that was prevalent at the community’s inception. While appellants infer that this was a “Quaker” community which opposed intoxicating liquor on the basis of moral beliefs, we do not find support for this position in the record.

Contrary to appellants’ contention, there was no one religious affiliation in the Penn-Craft community. The community was made up of a variety people, differing not only in their ethnic and racial background, but also in their religious orientation. The only common thread among the community was that each family had been dependent on the coal industry and were adversely affected by the unreliable nature of their employment. The original developers of Penn-Craft were recruited to be a part of the rehabilitation of the community. The selection of the group of families that participated in the development of Penn-Craft had no relation to religious background.

Appellants have failed to show that the nature of the community has changed in any significant way. The evidence produced at the hearing goes beyond the fact that many of the original developers or their descendants reside there. To the contrary, the record supports the trial court’s conclusion that the community remains primarily residential with a community association, a community ball field, and monthly town meetings. The fact that alcohol is served at various residences does not affect this conclusion. The deed makes no reference to the prohibition of alcohol being served, it only prescribes the sale or manufacture for sale of alcoholic beverages. Appellants’ argument to the contrary is meritless.

Appellants’ final contention is that the trial court erred in concluding that the sale of alcoholic beverages at the appellants’ restaurant would have any effect on the use and enjoyment of neighboring residential properties. Appellants claim that there was no evidence presented as to how the sale and consumption of alcohol would adversely affect the appellees’ use and enjoyment of residential and community property. However, appellants appear to have ignored the trial court’s memorandum. Citing our supreme court’s decision in Loeb v. Watkins, 428 Pa. 480, 240 A.2d 513 (1968) as authority, the trial court specifically and correctly stated that the right to enforce a restrictive covenant is absolute and not dependent upon proof that plaintiffs will suffer damage or harm as a result of the breach of the covenant. We find no reason to elaborate on the trial court’s resolution of this issue and find no merit to appellant’s final argument.

Order affirmed.

      . The record reveals that Penndale was incorporated by appellant Mary Jo Sinosky. Ms. Sinosky is also the sole shareholder of the corporation.

      . The record reveals that Mr. G’s Family Ties is a restaurant in the business of serving food. The restaurant applied for a liquor license with the intent of serving alcoholic beverages with meals.

      . As further support for the trial court’s position, we note that the deeds for lots 1 through 53 contain additional restrictions not found in the deed for lot 54. As mentioned above, lots 1 through 53 were intended for residential use while lot 54 was intended for commercial use. The term “unrestricted,” as lot 54 is marked on the plan, could have been an inarticulate attempt to indicate that the more stringent residential restrictions did not apply to lot 54. Given the ambiguity of the term "unrestricted” and the above plausible meaning, the clear language of the restrictions contained in each of the deeds that conveyed lot 54 would not be in conflict with the notation on the initial map and plat. This interpretation reconciles appellants' concern with regard to the apparent inconsistency between the notation on the initial plan and the intent of the parties to have the covenants run with the land.


author: WIEAND, Judge:

text:
    576 A.2d 63
    COMMONWEALTH of Pennsylvania v. Paul LEWIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1990.
    Filed June 6, 1990.

      Helen Marino, Philadelphia, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND and BROSKY, JJ.
   WIEAND, Judge:

Paul Lewis was tried in the Municipal Court of Philadelphia and was found guilty of possession of cocaine, a controlled substance. He was sentenced to probation for a period of one year. A petition for writ of certiorari to the Court of Common Pleas was denied, and Lewis appealed. He contends that the trial court improperly refused to suppress cocaine seized from him by police following an arrest which was illegal because it was unsupported by probable cause. We agree and reverse.

Appellant, by his counsel, moved orally in the Municipal Court to suppress the cocaine in the following manner:

[Defense Counsel]: Your Honor, we have a motion to suppress the physical evidence on the grounds the physical evidence was seized in violation of the Pennsylvania and United States Constitution.

Although the motion was made in general terms, subsequent argument, made after testimony of the arresting officer had been received, specifically identified the absence of probable cause for and the illegality of the arrest as the bases for the suppression of the evidence seized. The Municipal Court, in response to this challenge, ruled on the merits as follows:

THE COURT: In this instance the officer has justification. He has a defendant flaunting him. He has a defendant ignoring his order. He has the atmosphere, the condition on the street with which he is faced and I think he made a justifiable determination to arrest the defendant on the basis of his conduct. He has enough to arrest him.

THE COURT: I accept the officer’s testimony and I think it was a justifiable arrest, a search pursuant to that arrest. The motion to suppress is denied.

Contrary to the suggestion appearing in the Common Pleas Court’s opinion, the absence of probable cause for the arrest was not waived as a basis for the suppression of evidence.

In reviewing the denial of appellant’s motion to suppress evidence, a reviewing court must

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

Commonwealth v. Chamberlain, 332 Pa.Super. 108, 112, 480 A.2d 1209, 1211 (1984). See also: Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989); Commonwealth v. Tau Kappa Epsilon, 385 Pa.Super. 247, 255, 560 A.2d 786, 790 (1989).

The only witness at the suppression hearing was Officer Rawle, who had made the arrest. He said that Sergeant Gallo had asked him to keep an eye on “a black male, tan shorts, blue shirt, tan hat on the southeast corner of Tackawanna and Orthodox,” an area in which drugs were known to be sold. Later, Rawle observed Paul Lewis, who fit the description given by Gallo, standing on the corner. Rawle knew Lewis. He approached Lewis, at or about 1:30 a.m., and asked him to leave the area. Lewis walked across the street to the opposite corner, where he turned and grinned at Rawle. Rawle thereupon crossed the street, placed Lewis under arrest for “failure to disperse” and conducted a search of Lewis’s person. From Lewis’s back pocket Rawle. seized a blue, safari sunglass pouch which, when opened, was found to contain fifty-eight clear, plastic packets of a white powder believed to be cocaine. Subsequent testing revealed that the packets did, in fact, contain cocaine. - When asked why he had arrested Lewis, Rawle explained to the suppression court:

THE WITNESS: One factor that Sergeant Gallo had stated to me he told the male to leave the area prior to that. The other factor is that I had seen the male on this same location several times, hundreds of times as a matter of fact and I suspected him to be a seller of narcotics and every time I asked him to leave the area I usually get a hard time. Most of the times he leaves.

THE COURT: What is it about the area that is special?

THE WITNESS: There has been numerous arrests and numerous complaints about the area.

THE COURT: It’s a high drug area?

THE WITNESS: That’s correct.

“As a general rule, a search or seizure without a warrant is deemed unreasonable for constitutional purposes.” Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978), citing Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971). See also: Commonwealth v. Chandler, 505 Pa. 113, 122, 477 A.2d 851, 855 (1984); Commonwealth v. Silo, 480 Pa. 15, 20, 389 A.2d 62, 65 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979); Commonwealth v. Conn, 377 Pa.Super. 442, 445, 547 A.2d 768, 769-770 (1988); Commonwealth v. Ehrsam, 355 Pa.Super. 40, 51, 512 A.2d 1199, 1204 (1986); Commonwealth v. Hinkson, 315 Pa.Super. 23, 27, 461 A.2d 616, 618 (1983).

[W]arrantless searches and seizures are per se unreasonable “subject only to a few specifically established and well-delineated exceptions.” E.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022 [2031-32], 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507 [516], 19 L.Ed.2d 576 (1967); see Commonwealth v. Shaffer, 447 Pa. 91, 103, 288 A.2d 727, 734 (1972), cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972); Commonwealth v. Cockfield, 431 Pa. 639, 644, 246 A.2d 381, 383 (1968). Furthermore, in this jurisdiction the burden is upon the Commonwealth to prove by a preponderance of the evidence that a search or seizure did not violate the fourth amendment. Commonwealth v. Ravenell, 448 Pa. 162, 166, 292 A.2d 365, 367 (1972); Commonwealth v. Mazzella, 231 Pa.Super. 247, 250, 331 A.2d 784, 785 (1974); see Pa.R.Crim.P. 323(h).

Commonwealth v. Silo, supra 480 Pa. at 20-21, 389 A.2d at 65. See: Commonwealth v. Holzer, supra 480 Pa. at 102 and n. 6, 389 A.2d at 106 and n. 6 (stating warrant requirement and listing exceptions thereto); Commonwealth v. McBride, 391 Pa.Super. 113, 119-120, 570 A.2d 539, 542 (1990) (same).

One of the recognized exceptions to the general rule is a search which is incidental to a lawful arrest. Commonwealth v. McBride, supra; Commonwealth v. York, 381 Pa.Super. 55, 61, 552 A.2d 1092, 1094 (1989). See also: Commonwealth v. Norris, 498 Pa. 308, 315, 446 A.2d 246, 249 (1982); Commonwealth v. Walker, 348 Pa.Super. 207, 217, 501 A.2d 1143, 1148 (1985). “A lawful arrest may be made without a warrant if an officer, given all of the circumstances known to him and his making a practical common sense decision therefrom, had probable cause to believe that a crime was committed or was in the process of being committed by the suspect.” Commonwealth v. York, supra, 381 Pa.Super. at 61, 552 A.2d at 1095. See also: Commonwealth v. Fromal, 392 Pa.Super. 100, -, 572 A.2d 711 (1990); Commonwealth v. Butler, 354 Pa.Super. 533, 537-538, 512 A.2d 667, 669-670 (1986).

To be constitutionally valid, a warrantless arrest must be supported by probable cause. Commonwealth v. Voss, 333 Pa.Superior Ct. 331, 339, 482 A.2d 593, 598 (1984). Probable cause for arrest exists when the facts at the time of arrest would warrant a prudent person in believing that a criminal offense had been committed, and that the suspect was the perpetrator of the offense. Commonwealth v. Woodson, 342 Pa.Superior Ct. 392, 395, 493 A.2d 78, 79 (1985).

Commonwealth v. Anderson, 360 Pa.Super. 466, 470, 520 A.2d 1184, 1186 (1987). See also: Commonwealth v. Merriwether, 382 Pa.Super. 411, 419, 555 A.2d 906, 910 (1989); Commonwealth v. Bells, 373 Pa.Super. 57, 60, 540 A.2d 297, 299 (1988); Commonwealth v. Ellis, 354 Pa.Super. 11, 17-18, 510 A.2d 1253, 1256 (1986).

When appellant was arrested, he was standing alone on a street corner. When approached by a police officer and told to leave the area, he crossed the street to the opposite corner, looked back and grinned at the officer. Appellant did not speak to the officer and made no other gesture to or at the officer. He did not then commit a crime or give cause to believe he was engaged in criminal activity.

Section 5502 of the Crimes Code defines the offense of failure to disperse as follows:

§ 5502. Failure of disorderly persons to disperse upon official order
Where three or more persons are participating in a course of disorderly conduct which causes or may reasonably be expected to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor of the second degree.

18 Pa.C.S. § 5502. To violate this section, it is necessary that a person be part of a group of three or more persons. See: Commonwealth v. DeFrancesco, 481 Pa. 595, 393 A.2d 321 (1978). It is also necessary that such person be engaged in a course of disorderly conduct. Appellant was standing alone and was not engaged in disorderly conduct. Under these circumstances, Rawle did not have probable cause to arrest appellant for “failure to disperse.”

It is equally clear that Rawle did not have probable cause to believe that appellant was engaged in committing a drug offense. Although the area was a high drug area and although Rawle assumed that appellant was a drug pusher, there was nothing in appellant’s conduct to suggest that he was then engaged in illegal drug activity. On the contrary, appellant was merely standing alone on the street corner. See and compare: Commonwealth v. Mackie, 456 Pa. 372, 320 A.2d 842 (1974); Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1973); Commonwealth v. Anderson, 360 Pa.Super. 466, 520 A.2d 1184 (1987). See also: Commonwealth v. Boyer, 455 Pa. 283, 314 A.2d 317 (1974) (fact that defendant gave police an unusual look as he drove past them did not establish probable cause to stop and search his vehicle); Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968 (1987) (mere presence of defendant in high crime area does not provide police with reasonable and articulable suspicion necessary to justify investigatory stop and frisk).

Appellant contends that his arrest for failure to disperse was pretextual.

The term “pretext arrest” is used to describe an arrest made only to conduct a search without a warrant. “When the arrest is merely a subterfuge for conducting a search, the search is illegal in spite of the validity of the arrest. Amador-Gonzales [Gonzalez] v. United States, 391 F.2d 308 (5th Cir.1968).” Commonwealth v. Freeman, 222 Pa.Super. 178, 181, 293 A.2d 84, 85 (1972).

Commonwealth v. Tenney, 227 Pa.Super. 337, 339, 324 A.2d 401, 402 (1974). See also: Commonwealth v. Freeman, 222 Pa.Super. 178, 181, 293 A.2d 84, 85 (1972). It is not necessary in this case to determine whether appellant’s arrest was pretextual, for even the arrest for failure to disperse was unsupported by probable cause and improper. Appellant’s conduct did not evidence a violation of any criminal law, and the record is clear that Rawle did not have anything more than an unsupported suspicion that appellant intended to engage in drug related activity.

The evidence in this case was seized as a direct consequence of the unlawful arrest. As such, it was “fruit of the poisonous tree” and should have been suppressed. See: Commonwealth v. Harris, 491 Pa. 402, 408-409, 421 A.2d 199, 202 (1980); Commonwealth v. Shaw, 476 Pa. 543, 554-556, 383 A.2d 496, 501-502 (1978); Commonwealth v. Anderson, supra 360 Pa.Super. at 473, 520 A.2d at 1187-1188. See also: Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . Pa.R.Crim.P. 6005(a), governing procedure in Philadelphia Municipal Court, specifically permits the making of an oral motion for the suppression of evidence.

      . The Commonwealth did not file a formal brief but relied upon the opinion of the Court of Common Pleas.

      . Disorderly conduct is defined at 18 Pa.C.S. § 5503(a) as follows:
      § 5503. Disorderly conduct
      (a) Offense defined. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
      (1) engages in fighting or threatening, or in violent or tumultuous behavior;
      (2) makes unreasonable noise;
      (3) uses obscene language, or makes an obscene gesture; or
      (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.


author: JOHNSON, Judge:

text:
    576 A.2d 67
    Cynthia SCOTT, Appellant, v. George MERSHON.
    Superior Court of Pennsylvania.
    Argued March 21, 1990.
    Filed June 6, 1990.

      Nicholas J. Casenta, Jr., Asst. Dist. Atty., Downingtown, for Scott, appellant.
    James P. Green, Downingtown, for appellee.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

In this support action Cynthia Scott appeals from the order of September 11, 1989 dismissing her complaint for support against George Mershon, Jr. and her motion for the parties to have blood tests to determine paternity. The child was born to Cynthia Scott and her husband Ira Lee Scott; thus the presumption of Ira Lee’s paternity attaches. Because the facts of record fail to overcome the presumption, paternity is not a “relevant fact” warranting the ordering of blood tests under 42 Pa.C.S. § 6133. The court properly denied the motion for blood tests and dismissed the complaint for support. Hence, we affirm.

Cynthia Scott, a domiciliary of Texas, married Ira Lee Scott on April 11, 1987. The child in question, Cameron Lee Scott, was born in Burleson County, Texas on August 21, 1987. Ira Lee Scott is named as the father on Cameron Lee’s birth certificate. On January 19, 1989, Cynthia Scott commenced a support action in Pennsylvania pursuant to 23 Pa.C.S. § 4301 against Mershon, a Pennsylvania resident. At that time as now, she was married and living with Ira Lee Scott. Mershon denied paternity. On May 9, 1989 Cynthia Scott petitioned the court, through the Chester County District Attorney’s office, to order blood testing for herself, Cameron Lee and Mershon. The petition alleged no facts but merely stated that Mershon was the father of Cameron Lee. The court granted the petition and ordered the testing. Mershon filed preliminary objections and asked for a stay of all proceedings pending their disposition. The court entered a temporary stay on June 27, 1989. The preliminary objections were briefed and argued, and on September 11, 1989 the Honorable Alexander Endy denied the motion for a blood test and dismissed the complaint for support. This appeal follows.

Cynthia Scott avers that the trial court committed error in dismissing the complaint for support. Cynthia’s allegations do not overcome the presumption that a child born in wedlock is a child of the marriage and thus of the husband, one of the strongest presumptions in our law and one recently reaffirmed in John M. v. Paula T. and Michael T., 524 Pa. 306, 571 A.2d 1380 (1990). This well-established common law presumption has been traditionally referred to as the presumption of legitimacy. However, because all children are now deemed legitimate by statute, the John M. court has decided that the paternity presumption should now always be labeled as “the ‘presumption that a child born to a married woman is a child of the marriage/ and therefore of the woman’s husband.” 524 Pa. at -, n. 2, 571 A.2d at 1383, n. 2.

Although the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S. §§ 6131 et. seq. allows the presumption to be overcome if blood test evidence is conclusive, see 42 Pa.C.S. § 6137, the act articulates a threshold requirement that paternity be a “relevant fact” before tests may be ordered:

In any matter subject to this subchapter in which paternity, parentage or identity of a child- is a relevant fact, the court upon its own initiative ... may, or upon motion ... shall order the mother, child and alleged father to submit to blood tests.

42 Pa.C.S. § 6133.

In this case Cynthia implicitly challenges the paternity of her husband by alleging that another man is the father. In order to reach' the question of whether paternity is a “relevant fact,” we must first decide whether the presumption that the husband is the father of the child has been overcome under the facts of this case. If the presumption stands firm, then paternity is not a relevant fact, and blood tests cannot be ordered.

Generally, a presumption is a legal rule governing the procedural effect to be given certain evidence. Watkins v. Prudential Ins. Co. of America, 315 Pa. 497, 173 A. 644 (1934). However, the force and effect of all presumptions is not the same but rather depends upon the reasons for which courts and legislatures have created a particular presumption. Watkins, supra; see L. Packel and A.B. Poulin, Pennsylvania Evidence, § 306 (1987). One reason for creation of a presumption is to further a preferred social policy.' Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987); See In re Manfredi’s Estate, 399 Pa. 285, 159 A.2d 697 (1960).

When the purpose of a presumption is to further a preferred social policy, it is understood to be more like a substantive rule of law. See Michael H. v. Gerald D., 491 U.S. -, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). In Michael H. the United States Supreme Court was asked to decide whether the presumption, codified in a California statute, denied due process to a third party who sought to establish his paternity. The court looked to California law, as expressed in the opinion of the California Court of Appeal below, to discover the role of the presumption as it developed in that state. The Supreme Court concluded that the presumption:

is actually a substantive rule of law based upon a determination by the Legislature as a matter of overriding social policy that, given a certain relationship between the husband and wife, the husband is to be held responsible for the child, and that the integrity of the family unit should not be impugned.

Michael H., 491 U.S. at -, 109 S.Ct. at 2340, 105 L.Ed.2d at 103, quoting 191 Cal.App.3d 995, 1005, 236 Cal.Rptr. 810, 816 (1987).

Having determined the reasons behind the presumption, the Supreme Court considered the alleged biological father’s countervailing interests in light of the state’s overriding interest in the integrity of and preservation of the family. The Court decided that, even were the putative father to prevail in proving that he is the biological father, the state would not in fact award him substantive parental rights when there is an extant family in which the husband already exercises these with the child. The Court wrote:

It is no conceivable denial of constitutional right for a State to decline to declare facts unless some legal consequence hinges upon the requested declaration.

Michael H., 491 U.S. at -, 109 S.Ct. at 2343, 105 L.Ed.2d at 108.

Recently, in John M., supra, the Pennsylvania Supreme Court interpreted our judicially-created, common law presumption under a set of facts similar to those before the Michael H. court. In John M., as in Michael H., a third party to a marriage sought to establish his own paternity to gain paternal privileges. Our Supreme Court accorded the rights of the party claiming paternity and seeking parental rights more weight than did the United States Supreme Court. Nevertheless, our Supreme Court concluded that the rights and interests of the mother, the husband, the Commonwealth and the family unit prevailed. John M., 524 Pa. at -, 571 A.2d at 1385. The court emphasized that the needs and interests of the child were paramount. John M., 524 Pa. at -, 571 A.2d at 1386. While not articulating a particular evidentiary burden which must be sustained in order to overcome the presumption, the court implied that the burden is extremely heavy. Deciding that the presumption remained intact, the court denied blopd tests for the purpose of challenging the paternity of the husband.

The Michael H. court annunciated the principle that the effect of the presumption, the evidentiary role it plays, is judicially determined. This is true regardless of whether the presumption is legislatively or judicially created. It has always been well settled in Pennsylvania, as it is now reaffirmed by the John M. decision, that the purpose of the presumption that the husband is the father of a child born in wedlock is to reinforce the strong state interest in the preservation of the family, John M., 524 Pa. at -, 571 A.2d at 1386, citing Commonwealth ex rel. O’Brien v. O’Brien, 390 Pa. 551, 136 A.2d 451 (1958), which in turn protects the child’s welfare. John M. In John M. the Supreme Court decided that the presumption precluded an assertion of paternity by a party outside the marriage. We conclude that, under the facts of the present case, the presumption precludes an attempt by one of the partners in the intact marriage to assert paternity against a third party to the marriage.

Such an inquiry into paternity can yield no positive result for the child. Here, Mershon denies paternity. Cynthia alleges no contact between Mershon and Cameron Lee that could benefit the child. See Dallas, Rebutting the Marital Presumption: A Developed Relationship Test, 88 Colum.L.Rev. 369 (1988). Cynthia seeks support only. Even if blood tests were conducted and did show incontrovertibly that Mershon was the biological father, this declaration would have no legal effect, see Michael H., because Ira Lee Scott already carries the legal obligation to support Cameron Lee. A declaration that Mershon is the biological father could only disrupt the intact family, the maintenance of which is in the child’s best interests.

Both the United States Supreme Court in Michael H. and the Supreme Court of Pennsylvania in John M. treat the presumption as a rule established to carry out important social policy that cannot be easily abrogated, if at all. In both cases, the courts concluded that the presumption prevailed against arguable countervailing rights of one asserting paternity. The present case diverges factually from these two cases in an important respect that only serves to strengthen the operation of the presumption. The third party to the marriage, Mershon, is not asserting his own paternity and seeking to be accorded rights. It is Cynthia who attempts to destabilize her own family by claiming that her husband is not the father.

In this case no arguably valid countervailing interests oppose the primacy of the presumption that Ira Lee Scott, married to Cynthia when the child was born, is the child’s father. The record contains no evidence, not one factual averment, that could possibly be so construed. Not only does the presumption stand unchallenged, but successful challenge would have no legal effect, since the purpose of having Mershon declared the father is to collect support, and Ira Lee is legally responsible for and already fulfills his support obligation. Essentially, there is no aggrieved party. The child’s needs and interests are best served by the status quo, interruption of which would in itself be harmful. No party loses rights by this result, and no party’s interests are slighted. We conclude that nothing warrants overcoming the presumption. Therefore, because Cynthia fails to rebut the presumption that Ira Lee is the father of the child, paternity never becomes a relevant fact under § 6133. The court properly refused to order blood tests.

For the purpose of clarification, we now discuss a coordinate rationale employed by courts to resolve paternity cases, equitable estoppel. The John M. court, too, discussed equitable estoppel, although the court was careful to point out that the facts precluded decision upon that ground; the discussion was dicta. Nevertheless, the discussion provides guidance. The equitable estoppel doctrine, as expressed by the John M. court, is that “under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as father of the child.” John M., 524 Pa. at -, 571 A.2d at 1386. The classic example of this is the situation in which a child is born out of wedlock, but the couple lives together and the father treats the child as his own. This principle has been codified in the Marriage Law, 48 P.S. § 1-1 et seq. After establishing that all children are legitimate irrespective of the marital status of the parents, the Act declares:

Children; legitimacy; determination of paternity
(b) For purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined by and one of the following ways:
(1) If the parents of a child born out of wedlock shall have married each other.
(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.

48 P.S. § 167.

Courts have held that courses of action described by the statute estop the man from denying paternity. In In re Montenegro, 365 Pa.Super. 98, 528 A.2d 1381 (1987) we held that a man who marries the mother after the birth of the child may not subsequently, upon the couples’ separation, deny paternity. We went further and wrote that if the estoppel principle operates, even where blood tests had been taken and had demonstrated that the husband was not the biological father, the finding “is a nullity and provides no basis upon which the [husband] can deny paternity.” John M., 524 Pa. at -, 571 A.2d at 1387, citing Montenegro, 365 Pa.Super. at 103, 528 A.2d at 1382.

Our courts have also employed estoppel to preclude a husband from denying paternity when a child is born in wedlock but the couple separates and the ex-husband attempts to deny paternity subsequent to separation. Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990); Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa. Super. 171, 384 A.2d 1285 (1978); Commonwealth ex. rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963). The John M. court articulated the rationale of these cases concerning whether blood tests could be ordered: “These estoppel cases indicate that where the principle is operative, blood tests may well be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted.” John M., 524 Pa. at -, 571 A.2d at 1386.

Therefore, both adherence to the presumption and application of estoppel lead to the same point: the blood test is no longer necessary, whatever the result may be, because legal paternity has been established, and biological paternity is simply no longer relevant. While it is possible to resolve a born-in-wedlock case upon an estoppel rationale, it is not necessary, and therefore it may not be desirable, to do so. The better course is to rely upon the presumption that the husband is the father. It may be logically correct to say that having a child in wedlock estops one from denying paternity. However, we believe that the estoppel rationale will retain more power if reserved for cases to which it alone and not the presumption applies. In the same way, although it could be said that Cynthia, by having a child in wedlock, is estopped to deny her husband’s paternity, the presumption alone speaks eloquently and conclusively.

To close, we address two points raised by Cynthia Scott. Cynthia correctly avers that the trial court misapplied the case of Coburn v. Coburn, 384 Pa.Super. 295, 558 A.2d 548 (1989) (en banc), which holds that a prior agreement or judicial determination regarding paternity will collaterally estop a subsequent action for paternity. As there have been no prior agreements or determinations on the paternity issue in the present case, Coburn is inapposite.

Last, Cynthia Scott contends that the trial court erred in relying solely upon the fact that Cameron Lee’s birth certificate listed Ira Lee as the father. This argument fails. The marriage itself and the fact that the child was born to the marriage alone establishes the presumption. The birth certificate is merely documentary evidence of the date of birth and the names of the parents; it possesses no independent talismanic significance.

For all the foregoing reasons, we affirm the order denying blood testing.

Order affirmed.


author: CERCONE, Judge:

text:
    576 A.2d 72
    David PESTALOZZI, Appellant, v. PHILADELPHIA FLYERS LTD, Philadelphia Hockey Club, Inc., Spectacor, Inc. and the National Hockey League.
    Superior Court of Pennsylvania.
    Argued March 6, 1990.
    Filed June 7, 1990.

      Leonard L. Campbell, West Chester, for appellant.
    Mark D. Mazza, West Chester, for appellees.
    Before MCEWEN, M0NTEMUR0 and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County which granted appellees’ motion for summary judgment. We affirm.

On appeal, appellant argues that the lower court erroneously granted appellees’ motion for summary judgment. Specifically, appellant states that genuine issues as to material facts exist which support his cause of action. In this case, appellant was struck by a hockey puck while attending a professional game as a spectator. Appellant argues that the lower court improperly found that he assumed the risk of being struck. Central to this contention, appellant states that he intentionally sought to avoid this danger by securing a seat two rows behind the protective plexiglass near center ice. We reject appellant’s argument for the reasons outlined below.

As an appellate court, we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 104, 557 A.2d 1064, 1066 (1989). The trial court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 170, 551 A.2d 283, 284 (1988). Summary judgment should not be entered unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa.Super. 613, 615, 561 A.2d 1261, 1262 (1989). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the lower court’s conclusion that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. No. 1035, 42 Pa.C.S.A. See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989) (entire record before lower court must be thoroughly examined and all doubts as to the existence of a genuine issue of material fact are to be resolved against a grant of summary judgment). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988).

Citing our supreme court’s decision in Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978), the lower court found that appellant had assumed the risk of personal injury and granted appellee’s motion for summary judgment. In Jones, our supreme court discussed the so-called “no-duty” rule applicable to spectator sports. Id. Specifically, the court in Jones declared that baseball parks are not generally the insurer of its spectators with regard to batted balls. Id., 483 Pa. at 84, 394 A.2d at 550. Due to the unique facts presented in the Jones case, however, the supreme court declined to apply the “no-duty” rule in that instance. Id., 483 Pa. at 86-87, 394 A.2d at 551-52.

Thus, our probe is two-fold. First, we must determine whether the law articulated in Jones concerning flying baseballs is applicable to similar incidents involving hockey pucks. Second, we must decide whether this “no-duty” rule is applicable to the facts presented in the case sub judice. For the reasons outlined below, we find the rule applicable and affirm the lower court’s order granting appellee’s motion for summary judgment.

A review of the law of this Commonwealth reveals that Jones shines brightly as a polestar with regard to the so-called “no-duty” rule. In Jones, our supreme- court relied upon well-established common law concerning amusement facilities in determining the duty owed by a baseball park to its patrons. Id., 483 Pa. at 81-82, 394 A.2d at 548-49. “Only when the plaintiff introduces adequate evidence that the amusement facility in which he was injured deviated in some relevant respect from established custom will it be proper for an ‘inherent-risk’ case,-to go to the jury.” Id., 483 Pa. at 84, 394 A.2d at 550. The court in Jones explained that ball park management has no duty to protect spectators from risks inherent to the game of baseball. Id. Most importantly, this so-called “ ‘no-duty’ [rule applies] only to risks which are common, frequent and expected.” Id., 483 Pa. at 85, 394 A.2d at 551 (citations omitted).

In Jones, however, appellant/ spectator was struck in the eye with a batted ball during batting practice while using an interior walkway within Three Rivers Stadium. Id., 483 Pa. at 79-80, 394 A.2d at 547-48. Appellant was not aware that batting practice had begun and was going to the concession stand to purchase food when she was struck. Id., 483 Pa. at 79, 394 A.2d at 548. Furthermore, the court in Jones found that appellant had not previously attended any event held in Three Rivers Stadium. Id., 483 Pa. at 80, 394 A.2d at 548. In fact, our supreme court noted that the pertinent incident occurred on July 16, 1970, the facility’s inaugural date. Id., 483 Pa. at 79, 394 A.2d at 547. Thus, appellant in Jones was neither in close proximity of the playing field or cognizant of the risk involved. Given these factors, our supreme court concluded that such an incident was not a reasonably foreseeable danger inherent to the game of baseball and found the “no-duty” rule inapplicable. Id., 483 Pa. at 86-87, 394 A.2d at 551-52.

We do not find, nor does appellant proffer, any reason for this Court to differentiate flying hockey pucks from batted baseballs with regard to the risk assumed by the spectators of the two sports. To the contrary, we find the risks involved similar. The omnipresent specter of a deflected Mario Lemieux missile whizzing towards spectators seated at center ice is as inherent to the sport of hockey as the unnerving probability of a Von Hayes rocket flying towards patrons sitting in first base box seats is to a baseball game. Thus, we find the “no-duty” rule applicable to hockey spectators as well as baseball patrons. Therefore, we must determine whether risk in the instant case was “common, frequent and expected.”

Unlike the spectator in Jones, appellant was struck by the relevant orb while sitting in close proximity to the playing surface. Also, appellant, unlike his compatriot in Jones, was struck during the course of the game. We reject appellant’s contention that appellee was liable for his injuries since he [appellant] sought to avoid injury by purchasing seats behind the protective plexiglass. Our review of the record reveals that appellant had previously attended a professional hockey game and should have been familiar with the inherent risks involved. We find, therefore, that the risk of a spectator being struck by an errant puck, even for an individual sitting behind plexiglass, is common and reasonably foreseeable. Thus, we conclude that appellant assumed the risk of being struck by a flying puck.

Our decision with regard to this matter is consistent with the approaches taken by other states. In an early decision, Ingersoll v. Onondaga Hockey Club, Inc., 281 N.Y.S. 505, 245 A.D. 137 (1935), the New York Supreme Court also equated hockey spectators with their baseball counterparts and found that there was no duty on the part of the operator of a hockey game to protect a spectator from being struck by a errant puck. Id. The court stated as follows:

There was no obligation on the part of respondents to protect appellant against a danger incident to the entertainment which any reasonable spectator could foresee and of which [he] took the risk. The risk of being hit by a baseball or by a puck at a hockey game is a risk incidental to the entertainment and is assumed by the spectator. Any other rule of law would place an unreasonable burden upon the operator of a ball park or hockey rink.

Id. at 508. We find this logic persuasive and consistent with our supreme court’s decision in Jones, supra.

We find, therefore, that the lower court properly granted appellee’s motion for summary judgment. Even accepting as true all of appellant’s well-pleaded facts, we find that appellant is not entitled to judgment as a matter of law. Thus, we affirm the order of the lower court.

Order affirmed.

      . At least two of our sister states have decreed that injured hockey spectators assumed the risk of being struck with a flying puck with accordance with the baseball "no-duty” rule. See Modec v. Eveleth, 224 Minn. 556, 29 N.W.2d 453 (1947); Ingersoll v. Onondaga Hockey Club, infra.

      . This decision should not be misconstrued, however, to suggest that spectators injured at hockey games in all instances shall be barred from recovery. Utilizing Jones as our polestar, we note that the baseball "no-duty" rule is only applicable to risks occurring during a hockey game which are "common, frequent and expected."