author: HUDOCK, Judge:

text:
    590 A.2d 1261
    COMMONWEALTH of Pennsylvania, Appellee, v. Timothy S. HECKMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued April 3, 1991.
    Filed May 8, 1991.

      Douglas B. Chester, Spring Mills, for appellant.
    J. Karen Arnold, Asst. Dist. Atty., Bellefonte, for Com., appellee.
    Before JOHNSON, HUDOCK and CERCONE, JJ.
   HUDOCK, Judge:

This is an appeal from the judgments of sentence imposed upon Appellant after he was found guilty of two separate instances of driving under suspension and two violations concerning licenses. Timely filed post-verdict motions were granted in part and denied in part by the trial court. Appellant was sentenced to an aggregate term of ninety days incarceration and a total of $1400 in fines. This direct appeal followed. We affirm.

The facts may be summarized as follows: On April 16, 1988, Trooper John Kruse of the Pennsylvania State Police stopped Appellant and cited him for speeding. At that time, Trooper Kruse ran a computer check on Appellant’s driver’s license, which revealed that Appellant’s license was under suspension and that the suspension was possibly DUI-related. According to testimony, Trooper Kruse advised Appellant that his license was under suspension and refused to allow Appellant to drive away from the point where he had been stopped. Trooper Kruse also testified, however, that he was not sure of the status of Appellant’s license at that time and had to verify it with the Pennsylvania Department of Transportation (PennDot). Thus, pursuant to the requirements set forth in 75 Pa.C.S.A. § 1543(d), Trooper Kruse sent to PennDot for a certified driving record in order to verify the suspension and determine the appropriate subsection of § 1543 under which to file his citation. Consequently, Trooper Kruse filed only a citation for speeding at that time, pending verification of the status of Appellant’s driver’s license.

On May 11, 1988, Trooper Kruse received a certified copy of Appellant’s driving record which indicated an indefinite suspension beginning March 14, 1988, for failing to pass an exam. Based on this information, Trooper Kruse filed a driving under suspension citation against Appellant on May 12, 1988, pursuant to 75 Pa.C.S.A. § 1543(a). Appellant’s certified driving record also showed a court ordered DUI/ ARD suspension for thirty days, effective October 6, 1987, which included a notation that official notice was mailed on September 1, 1987. However, Trooper Kruse testified that since there was no indication on Appellant’s record that this DUI/ARD suspension had not expired thirty days from its effective date, he had no reason to file a citation for driving under suspension with regard to the DUI/ARD suspension.

Also on May 11, 1988, Trooper Thomas Breon of the Pennsylvania State Police stopped Appellant and cited him for speeding. Trooper Breon did not run a computer check on Appellant’s license, and was thus unaware of its suspension. Later that evening, Trooper Breon learned from Trooper Kruse that Appellant’s license had been indefinitely suspended, for failing to pass an exam, effective March 14, 1988. Based on this information, Trooper Breon filed citations against Appellant on May 16, 1988, for driving under suspension, supra, and violations concerning licenses, 75 Pa.C.S.A. § 1571(a)(1) and (4). Like Trooper Kruse, Trooper Breon testified that he believed Appellant’s DUI/ARD suspension had terminated November 6, 1987, since the certified driving record did not indicate otherwise.

Appellant entered guilty pleas to the speeding violations and subsequently requested a magistrate’s hearing on all of the remaining citations issued by Troopers Kruse and Breon. This hearing was originally scheduled for June 17, 1988. However, on June 16, 1988, counsel for PennDot advised the Commonwealth via telephone that Appellant was in fact under a DUI/ARD suspension due to the fact that Appellant had not relinquished his license until June 1, 1988. The Commonwealth relayed this information to Troopers Kruse and Breon and contacted the magistrate to request a continuance of the hearing for the purpose of awaiting receipt by the Troopers of more specific, supplemental information from PennDot sufficient to establish DUI-related suspension violations. Counsel who represented Appellant at that time agreed to the continuance. Troopers Kruse and Breon received documentation of this information on July 5, 1988, and used same as the basis to file supplemental driving under suspension citations against Appellant, pursuant to 75 Pa.C.S.A. § 1543(b).

Appellant’s hearing before the magistrate took place on July 20, 1988. After presiding over Appellant’s hearing, District Justice Ronald J. Horner rendered his decision on August 9, 1988. Appellant was convicted of the citations filed by Trooper Breon and found not guilty of the citations filed by Trooper Kruse. Appellant then appealed to the trial court on August 22, 1988, contending that his conviction was barred by the statute of limitations under 42 Pa.C.S.A. § 5553(a) and that he did not receive notice that his license had been suspended. A non-jury trial, (summary appeal), was held on December 20, 1988. Although two citations had been dismissed by the District Justice, the trial court proceeded to try Appellant on all six citations filed. Appellant was found guilty on all six citations.

Timely post-verdict motions were filed by Appellant. The trial court, upon recognizing the fact that two citations had been dismissed by the District Justice, arrested judgment rendered in regard to them. Thus, the trial court ultimately found Appellant guilty of two counts of driving under suspension, pursuant to 75 Pa.C.S.A. § 1543(a) and § 1543(b), respectively, and one count each of violations concerning licenses, 75 Pa.C.S.A. § 1571(a)(1), and violations concerning licenses, 75 Pa.C.S.A. § 1571(a)(4).

Appellant first claims that his conviction under 75 Pa. C.S.A. § 1543(b) is barred by the applicable statute of limitations. Section 5553(a) of the Judicial Code, 42 Pa. C.S.A., provides as follows:

(a) General rule.—Except as provided in subsection (b) or (c), proceedings for summary offenses under Title 75 (relating to vehicles) must be commenced within 30 days after the commission of the alleged offense or within 30 days after the discovery of the commission of the offense or the identity of the offender, whichever is later, and not thereafter. (Emphasis added).

The above-emphasized language is at issue in the present case since it is clear that the § 1548(b) citation was issued more than thirty days after commission of the offense. Appellant argues that this language is likewise inapplicable since the citation was filed more than thirty days after the DUI-related suspension was “discovered” by the police. Appellant supports this conclusion by presenting the following two arguments: The computer check run by Trooper Kruse in April, 1988, provided a legal basis for the filing of § 1543(b) citations under the rationale of Commonwealth v. Larson, 299 Pa.Super. 252, 445 A.2d 550 (1982) and, alternatively, that if “discovery” did not occur at that time, it occurred no later than May 11, 1988, when Trooper Kruse received Appellant’s certified driving record and showed it to Trooper Breon. Appellant further states that if the certified driving record was misinterpreted by the Troopers as not providing a basis for the filing of a § 1543(b) violation, he cannot be held accountable because they should have “discovered” such basis.

Appellant’s reliance on Commonwealth v. Larson, supra, in support of his first argument is misplaced since it was decided prior to the amendment of § 1543(b). In Larson, this Court held a charge of operating while under a DUI-related suspension should have been dismissed because it was filed beyond the thirty-day limitation period from the date of the offense, on the rationale that the officer in that case could have filed the DUI-related citation on the basis of the computer check, which indicated a “suspension”, and, thereafter, if the certified driving record had not been received by the time of the scheduled hearing, a continuance could then be requested. Larson, therefore, suggests that a police computer check would not suffice in lieu of a certified driving record as proof of the suspension at the time of the hearing. Larson was also decided at a time when all suspensions, regardless of the underlying reason therefor, were grouped under the equivalent of what would now be a § 1543(a) violation. Subsequently, § 75 Pa.C.S.A. § 1543(b) was enacted which specifically dealt with DUI-related suspensions.

Following enactment of § 1543(b), several trial court decisions held that, where only a § 1543(a) citation was filed at the time of the offense, absent an amendment or supplemental citation filed prior to the hearing, a defendant could be neither convicted at the hearing of a § 1543(b) violation, nor subject to its mandatory penalties, even where information obtained subsequent to the original filing established that § 1543(b) was applicable. See e.g., Commonwealth v. Lambert, 28 D. & C.3d 339 (Northampton Co. 1983); Commonwealth v. Chapman, 39 D. & C.3d 360 (Clinton Co. 1983). In an apparent response to these cases, the Pennsylvania Legislature, in 1987, enacted 75 Pa.C.S.A. § 1543(d) which provides:

(d) Citation of appropriate subsection.—Prior to filing a citation for a violation of this section with the issuing authority named in the citation, the police officer shall verify the basis of the suspension with the department. Upon receiving the verification, the officer shall cite the appropriate subsection of this section on the citation.

Appellant argues that the Troopers in the present case could have satisfied the verification requirement of the above subsection by phone or a personal visit to PennDot. Our research has failed to uncover an appellate case which interprets the verification requirement of this subsection. However, as stated above, even at the time Commonwealth v. Larson, supra, was decided, a certified driving record was the verification required in order to prove the suspension. Thus, we hold that the verification required under this subsection is the receipt of a certified driving record from PennDot.

Appellant next argues that the discovery of the offense occurred when Trooper Kruse received his certified driving record from PennDot and relayed the information concerning the suspension to Trooper Breon on May 11, 1988. In Commonwealth v. Parfitt, 286 Pa.Super. 279, 428 A.2d 991 (1981), this Court held that a driver could not be convicted of driving under suspension during any period between the expiration of an actual suspension period and the physical restoration of the driver’s license, noting that the words “and before such operating privilege has been reinstated,” found in the Vehicle Code of 1959, 75 P.S. § 624(b), had not been incorporated into 75 Pa.C.S.A. § 1543. Another panel of this Court felt constrained to reach this same result in Commonwealth v. Fay, 320 Pa.Super. 399, 467 A.2d 384 (1983).

In apparent response to Parfitt and Fay, the Pennsylvania Legislature, in 1986, amended 75 Pa.C.S.A. § 1543(a) to add the language “and before the operating privilege has been restored.” However, this same language was not added to § 1543(b). Therefore, a driver still cannot be convicted of driving under suspension, DUI-related, once the actual time period of the DUI-related suspension has expired. Thus, by the terms of the suspension itself, it expires on the thirtieth day of the physical receipt of the license by PennDot. However, this expiration date assumes the fact that the license has been surrendered in a timely manner. This did not occur in the present case. Indeed, it was not until June 1, 1988, after Appellant had been pulled over by both Troopers Kruse and Breon, and had been informed by the former that his license was under suspension, that Appellant went to Harrisburg to discover the status of his license and subsequently surrender it to Penn-Dot.

Due to the fact that Appellant had his license in his possession when he was first stopped by Trooper Kruse, and the fact that the certified driving record received and reviewed by the Troopers on May 11, 1988, indicated an indefinite suspension for failing to pass an exam and a DUI-related suspension of thirty days, effective October 6, 1987, there was no indication on the record that Appellant had not surrendered his license in regard to the DUI-related suspension and, therefore, that the DUI-related suspension had not expired on November 6, 1987. Thus, without such documentation, the only citation which properly could be filed was a § 1543(a) citation. This is precisely what both Troopers filed. It was not until June 17, 1990, when the District Attorney’s Office relayed information received from counsel for PennDot that Appellant had not surrendered his license, that the Troopers “discovered” the true status of Appellant’s license. Therefore, June 17, 1990, the date upon which they received supplemental documentation from PennDot, must be treated as the discovery date for purposes of § 5553, supra, and, consequently, the § 1543(b) citation issued by Trooper Breon was filed in a timely manner.

An alternative basis to support Appellant’s § 1543(b) conviction, which was not addressed by either Appellant or the Commonwealth, is the fact that the statute of limitations for the § 1543(b) citation was tolled by Trooper Breon’s timely filing of the other citations. In Commonwealth v. Alessi, 389 Pa.Super. 497, 567 A.2d 713 (1989), the defendant was stopped by a police officer on September 18, 1986. The officer then ran a computer check of the defendant’s driver’s license and found it to be under suspension. The officer issued a citation with the District Justice on that same day. On September 23, 1986, the officer received formal verification of the license suspension from the Bureau of Motor Vehicles, specifying the nature of the suspension. The District Justice then issued a summons on October 26, 1986. Defendant thereafter moved to quash the citation as time-barred by the thirty-day limitation of § 5553(a), supra. This Court held that for purposes of § 5553(a), once the investigating officer has filed the citation with the issuing authority, proceedings have commenced and the statute of limitations is tolled.

In reaching this conclusion, this Court in Alessi cited to Pa.R.Crim.P. 60 which provides as follows:

When it is not feasible to issue the citation to the defendant or when evidence is discovered after the issuance of a citation that gives rise to additional summary charges against the defendant resulting from the same incident, a law enforcement officer shall institute a criminal proceeding in a summary case by filing a citation with the proper issuing authority.

Pa.R.Crim.P., Rule 60, 42 Pa.C.S.A. (emphasis added). In the present case Trooper Breon filed three citations, including a driving under suspension citation under § 1543(a), within five days of the date of the offense. Their discovery that the DUI-related suspension had not expired due to Appellant’s failure to surrender his license constitutes evidence which was discovered after the issuance of the original citations and arose from the same traffic stop. Therefore, the subsequently filed § 1543(b) citation is not time-barred because the applicable statute of limitations had been tolled by the filing of the prior citations. Thus, Appellant’s first claim is without merit.

Appellant next claims that his license was not under a DUI-related suspension when he was stopped by the Troopers. Seemingly, Appellant boldly argues that the DUI-suspension expired even though he had not surrendered his license to PennDot. Initially, we note that this issue was not raised at trial or in post-trial motions and is, therefore, not preserved for appellate review. Commonwealth v. Cook, 377 Pa.Super. 356, 547 A.2d 406 (1988). In any event, Appellant’s claim is patently frivolous. Section 1541 of the Vehicle Code provides in pertinent part:

(a) Commencement of period.—The period of revocation or suspension of the operating privilege shall commence as provided for in section 1540 (relating to surrender of license) [ (“suspension or revocation shall be effective upon a date determined by the court or district attorney or upon the date of the surrender of the license to the court or district attorney, whichever shall first occur.”) ]. No credit toward the revocation or suspension shall be earned until the driver’s license is surrendered to the department, the court or the district attorney, as the case may be.

75 Pa.C.S.A. § 1541(a) (emphasis added). Thus, in the present case, Appellant had not earned any credit toward the completion of either of the suspensions at the time of the stops for speeding since he had the license in his physical possession on both occasions.

The final issue raised by Appellant is that the Commonwealth failed to prove that he had actual notice that his license was suspended. Thus, Appellant claims that the Commonwealth failed to present sufficient evidence to support his convictions. In Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975), our Supreme Court held that evidence that a notice of suspension had been mailed alone was not sufficient to prove beyond a reasonable doubt that the defendant had actual notice of his suspension. In Kane, the notice of suspension was not sent to the defendant’s address of record with PennDot, but instead, due to a typographical error, was sent to a wrong address at which the defendant had never resided. Subsequent cases, however, have held that the Commonwealth proved actual notice where additional evidence which would infer notice was presented. See e.g. Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982) (evidence that the defendant had surrendered license and attempted to conceal he was driving by removing himself from the driver’s seat was found probative of actual notice); Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986), alloc. den’d. in 514 Pa. 638, 523 A.2d 345 (1987) (evidence that the notice had been mailed to his correct address and the fact that the defendant had previously surrendered his license in response to notice mailed to him at the same address was found probative of actual notice); Commonwealth v. Horney, 365 Pa.Super. 152, 529 A.2d 18 (1987) (evidence that notice was mailed and defendant’s admission that he received prior notice, mailed to same address, notifying him to take a special exam in order to keep his license and the fact that he knew he did not complete exam, found probative of actual notice).

Recently, a panel of this Court in Commonwealth v. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990), held that the Commonwealth did not prove actual notice of a license suspension' where there was unrebutted evidence that the defendant no longer resided at the address to which his license was' registered. The panel decision in Taylor does not reveal whether the defendant had notified PennDot of his change of address as required under 75 Pa.C.S.A. § 1515. See also Commonwealth v. Gamble, 376 Pa.Super. 590, 546 A.2d 681 (1988). Unrebutted evidence was presented in the case sub judice that Appellant had failed to notify PennDot. More specifically, evidence was presented that all of the PennDot suspension notices and all of the citations filed by the Troopers on May 12 and May 16, 1988 were sent to Appellant’s address of record with PennDot.

There was no evidence that PennDot sent its notices to an address at which Appellant had never resided. Appellant, who had moved from the address of record with PennDot in 1986, testified that, apart from the two PennDot suspension notices, he had never experienced difficulties in having his mail transferred or delivered to him at this new address. Evidence was also presented that the two PennDot notices were returned “unclaimed.” This evidence reveals not only an attempt to thwart receipt of actual notice by failing to notify PennDot of a new address, a summary violation in itself, but is also probative evidence, as in Commonwealth v. Gray, supra, of actual notice. Thus, we today hold that when a defendant fails to notify PennDot of a change in address pursuant to 75 Pa.C.S.A. § 1515, the defendant cannot rely on this violation of the law to insulate him from more serious violations by claiming lack of actual notice.

Judgments of sentence are affirmed.

      . On appeal, Appellant seemingly argues that all four of the citations issued by Trooper Breon are barred by the applicable statute of limitations. The record reveals that Trooper Breon’s citations filed under 75 Pa.C.S.A. § 1543(a), § 1571(a)(1) and § 1571(a)(4) were filed within five days of the date of the offense. Thus, the only possible basis for Appellant’s statute of limitations claim is in regard to the § 1543(b) citation filed by Trooper Breon on July 7, 1988.

      . Appellant also had his license in his physical possession when he was stopped by Trooper Breon.

      . Accordingly, Appellant’s DUI-related suspension became effective on October 6, 1987, and did not expire until July 1, 1988, thirty days after Appellant’s surrender of his license to PennDot on June 1, 1988. See gen. Commonwealth v. MacSherry, 371 Pa.Super. 164, 537 A.2d 871 (1988).

      . The July 7, 1988, § 1543(b) citation was sent to Appellant’s current address. A review of the record reveals that it was the magistrate’s secretary, a person with whom Appellant was acquainted, who updated the address on the pertinent documents.

      . The trial court found it significant that Appellant readily received other mail that was mailed to his prior address. We also note that Trooper Kruse’s informing Appellant that a computer check of his license indicated that it was suspended provided some evidence of notice to Appellant.

      . The Commonwealth also argues that Commonwealth v. Kane, supra, is inapplicable to the notice issue since the facts in that case arose under the now repealed Vehicle Code of 1959 which provided that driving under suspension was a misdemeanor. Under the present Vehicle Code, driving under suspension is a summary offense. The Commonwealth then argues, citing 18 Pa.C.S.A. § 305, that the requirement of culpability does not apply to summary offenses unless culpability is included in the definition of the offense or where the court determines that its application is consistent with the effective enforcement of the law defining the offense. While we agree that § 1543(b), supra, does not include a culpability requirement in its definition, we cannot agree that such a requirement is "patently inconsistent” with effective enforcement of driving under suspension. Thus, while we today hold that where a defendant’s own conduct renders actual notice impossible, the defendant cannot use such lack of notice as a shield to other, more serious violations, we do not hold that actual notice of suspension is no longer necessary.


source: Caselaw Access Project

author: FORD ELLIOTT, Judge:

license: Public Domain

text:
    590 A.2d 1267
    David J. HUMPHREYS, and Humphreys & Nubani, P.C. Appellants, v. NIAGARA FIRE INSURANCE COMPANY and Dexter-Bertholon-Rowland, Inc.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1991.
    Filed May 9, 1991.
    Petition for Allowance of Appeal Denied Oct. 1, 1991.

      Theodore E. Breault, Pittsburgh, for appellants.
    Richard S. Dorfzaun, Pittsburgh, for Niagara Fire Ins., appellee.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the August 6, 1990, order of the Court of Common Pleas of Allegheny County sustaining appellee’s preliminary objections in the nature of a demurrer and dismissing Counts I, II, and III of the appellants’ complaint. Appellants argue that the trial court erred in sustaining appellee’s preliminary objections since, according to appellants, the complaint does set forth valid claims upon which relief can be granted. Although we do not agree with the reasoning offered in the trial court’s opinion, we do agree with the result; therefore, we affirm the trial court’s decision.

The action giving rise to this appeal is one for breach of contract; specifically, the breach of a duty to defend under a professional liability insurance agreement. The suit was instituted by attorney David J. Humphreys and his law firm, Humphreys & Nubani, P.C., against their professional liability insurance carrier, Niagara Fire Insurance Company.

In January of 1983, appellants responded to an insurance advertisement circular distributed by the Dexter-Bertholon-Rowland agency which outlined a new professional liability insurance program for lawyers. In response to the appellants’ inquiry, Dexter-Bertholon-Rowland, Inc. sent to Humphreys & Nubani a quotation for lawyers professional liability insurance through the Niagara Fire Insurance Company. On March 14, 1983, appellants accepted this quotation and as of that date Niagara Fire Insurance Company has been appellants’ insurer for professional liability purposes.

On September 26, 1983, David J. Humphreys was served with a complaint which had been filed in the federal district court for the Western District of Pennsylvania. That complaint, in which Mr. Humphreys was one of several named defendants, sought recovery under the civil remedies provision of the federal Racketeer Influenced and Corrupt Organizations Act (RICO) of 1970. The complaint against Mr. Humphreys also alleged violations of the federal mail fraud statute and the federal wire fraud statute as the underlying predicate acts constituting a pattern of racketeering activity. Count II of the federal complaint against Mr. Humphreys alleged that he, along with the other named defendants, conspired to restrain and/or monopolize trade in violation of the Sherman Anti-Trust Act. The federal complaint contained two additional counts pertaining to other defendants in that action and have no relevance for the purposes of the disposition of this appeal.

Immediately upon being served with the federal complaint, Mr. Humphreys, through his counsel, put Professionals Risk Management and Service Company on notice of the suit and requested that they tender a defense. By letter of October 4, 1983, Professionals Risk Management and Service Company informed Mr. Humphreys that it was declining to provide him with a defense for the federal action because all of the allegations set forth in the complaint against Mr. Humphreys were founded upon alleged intentionally fraudulent actions, which clearly were excluded from coverage under the terms of the policy. In response to a second request from Mr. Humphreys that he be provided with a defense for the federal action, under the terms of his professional liability insurance policy, Underwriters Adjusting Company informed Mr. Humphreys that it was now handling all claims for professional liability coverage under Niagara policies, and that it concurred with the decision not to provide Mr. Humphreys with a defense for this action. Underwriters, like Professionals Risk Management, based its decision on the language of the policy excluding from coverage any claims arising from dishonest, fraudulent or malicious acts. Specifically, the exclusionary language relied upon by both Professionals Risk Management and Underwriters Adjusting reads as follows:

This policy does not apply:
a) to any claim arising out of any criminal act or omission of any insured, partner or employee hereunder:
b) to any claim arising out of any dishonest, fraudulent or malicious acts or omissions of an insured, partner or employee committed with actual dishonest, fraudulent or malicious purpose or intent. However, notwithstanding the foregoing, the company shall defend any and all “personal injury” claims.

Mr. Humphreys eventually retained his own legal counsel to defend him in the action filed in federal court. Subsequent to the termination of the federal action, Mr. Humphreys and his law firm filed an action in state court against Niagara Fire Insurance Company and Dexter-Bertholon-Rowland, Inc. seeking damages for refusing to provide a defense to the federal court action under the terms of the professional liability insurance policy, including a recovery of the $73,693.74 expended in counsel fees to defend the federal action. The first three counts of that complaint pertain to appellee, and allege that Niagara breached its obligation to defend; breached its fiduciary duty to act in good faith; and is liable to appellant for punitive damages because it failed to act in good faith.

In response to the complaint filed against it, Niagara Fire Insurance Company filed preliminary objections in the nature of a demurrer arguing that plaintiffs had failed to state a claim or claims upon which relief could be granted. By order of court dated August 6, 1990, Judge Judith Friedman sustained the preliminary objections and dismissed Counts I, II, and III of the complaint. It is from that order the appellants appeal.

Appellants raise three issues for our consideration.

I. Does the complaint’s cause of action entitled “breach of obligation to defend” state a claim upon which relief can be granted?
II. Does the complaint’s cause of action entitled “breach of fiduciary duty to act in good faith” state a claim upon which relief can be granted?
III. Does the complaint’s cause of action entitled “punitive damages” state a claim upon which relief can be granted?

In reviewing an order sustaining preliminary objections in the nature of a demurrer, it is necessary for this court to accept as true all well-pleaded facts and the reasonable inferences therefrom, and only sustain the demurrer if it is certain that no recovery is permitted. Douglas v. Schwenk, 330 Pa.Super. 392, 479 A.2d 608 (1984).

Regarding Count I of the underlying complaint, appellants argue that the trial court erred in concluding that Niagara properly refused the request for a defense since the federal complaint did not involve Mr. Humphreys’ status as an attorney and did not allege any malpractice on the part of Mr. Humphreys. Appellants maintain that the federal complaint does pertain to Mr. Humphreys as an attorney and concerns legal work which he performed. Appellants further maintain that because the federal complaint encompasses acts done by Mr. Humphreys as an attorney, and because none of the exclusions in the policy are applicable, Niagara had a duty to defend Mr. Humphreys and breached that duty by refusing his requests for a defense. Appellee, on the other hand, agrees with the trial court that the federal action did not involve Mr. Humphreys as a lawyer, but rather as a RICO co-conspirator. Appellee further argues that even assuming the federal complaint did state a cause of action based upon Mr. Humphreys acts as an attorney, it was still correct in refusing to defend based upon the exclusionary language in the policy. While we note that the question of whether the federal complaint concerns Mr. Humphreys’ actions as an attorney is not as easily answered as appellee would lead us to believe, it is quite clear that, as appellee argues, the exclusionary language prohibits coverage for the claims raised in the federal action; therefore, the trial court was correct in dismissing Count I of the underlying complaint since Niagara had no duty to defend Mr. Humphreys based on the nature of the federal court action.

In determining whether appellants had any potential basis for recovery under a theory of breach of duty to defend, the critical consideration is that the obligation of an insurer to defend an action is fixed solely by the allegations in the underlying complaint. United Services Auto Assoc. v. Elitzky, 358 Pa.Super. 362, 517 A.2d 982 (1986). The obligation to defend arises whenever the underlying complaint, in this instance the federal complaint, potentially may come within the coverage of the policy. State Auto mobile Insurance Assoc. v. Kuhfahl, 364 Pa.Super. 230, 527 A.2d 1039 (1987).

The test to be applied in determining whether an insurer has a duty to defend its insured was summarized aptly in D’Auria v. Zurich Insurance Co., 352 Pa.Super. 231, 507 A.2d 857 (1986).

Even though the insurance policy states that the insurer must defend against allegations which are groundless, false, or fraudulent, this does not mean that the insurer has a duty to defend any suit filed against the insured. The duty to defend is limited only to those claims covered by the policy. Thus, the insurer owes a duty to defend if the complaint against the insured alleges facts which would bring the claim within the policy coverage if they were true. It does not matter if in reality the facts are completely groundless, false or fraudulent. It is the face of the complaint and not the truth of the facts alleged therein which determines whether there is a duty to defend.

Id., 352 Pa.Superior Ct. at 235, 507 A.2d at 859 (emphasis in original, citations omitted).

As stated previously, the federal complaint naming Mr. Humphreys as a defendant was a four count complaint, in which two of those counts specifically applied to Mr. Humphreys. The first count alleged that Mr. Humphreys, acting in concert with other named defendants, violated the federal RICO act by engaging in a pattern of racketeering activity. The underlying predicate acts giving rise to this alleged RICO violation, as set forth in the federal complaint, include violations of the federal mail fraud and wire fraud statutes. Our inquiry is whether, based upon the allegations in the first count of the federal complaint, there are any alleged facts which, if proven to be true, could possibly bring the claim within the scope of coverage of the Niagara policy.

Exclusion (a) of the Niagara policy applies to any criminal act or omission by the insured. While the federal RICO statute is first and foremost a federal criminal statute, the claim giving rise to the dispute as to whether Niagara owed Mr. Humphreys a defense is one grounded in the civil remedies section of the RICO statute. Therefore, we are of the opinion that the first exclusion is inapplicable under the present circumstances. The second exclusion set forth in the insurance policy excludes from coverage any claims arising out of intentionally fraudulent, dishonest, or malicious acts. In order for this exclusion to apply, the fraudulent, dishonest, or malicious act must have been committed with purpose or intent. Count I of the federal complaint alleges RICO violations along with violations of the federal mail fraud and wire fraud statutes. Numerous federal courts have concluded that to maintain a successful RICO action, either civil or criminal, it is necessary to establish that the defendant acted with fraudulent intent. See Kane v. Shearson Lehman Hutton, Inc., 916 F.2d 643 (11th Cir.1990); United States v. Indelicato, 865 F.2d 1370 (2d Cir.1989); and Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46 (2d Cir.1987). These courts have further concluded that fraudulent intent is a requisite element to establishing mail or wire fraud as the predicate acts giving rise to the RICO violation. Beck v. Manufacturers Hanover Trust Co., supra. Thus, in order for the allegations in the federal complaint to have been proven true it would have been necessary to establish that Mr. Humphreys acted with fraudulent intent. Clearly, under the language of the second exclusion set forth in the policy, the policy does not provide coverage for any acts committed with fraudulent intent. Therefore, under these circumstances Niagara had no duty to defend against the alleged claims for RICO violations. Once an insurer looks to the facts alleged in the complaint and determines that if those facts were found to be true coverage would not apply, then the insurer properly may refuse to provide a defense. See D’Auria v. Zurich Insurance Co., supra. Since coverage for this type of claim clearly was excluded under the terms of the policy, the insurer would not be exposed to cover such a claim, and properly refused to provide Mr. Humphreys with a defense with respect to Count I of the federal action.

The second count of the federal complaint alleged Mr. Humphreys’ violations of sections 1 and 2 of the Sherman Anti-Trust Act. Again, the same analysis is applicable to this count of the complaint as was applied to the RICO count. In order to establish a violation of section 1 of the Sherman Act it is necessary to prove that the defendant acted with an anticompetitive intent. SI Handling Systems, Inc. v. Heisley, 658 F.Supp. 362 (E.D.Pa.1986). In order to establish a violation of section 2 of the Sherman Act it is necessary to prove that the defendant acted with the specific intent to destroy competition or build a monopoly. Mutual Fund Investors v. Putnam Management Co., 553 F.2d 620 (9th Cir.1977). In each of these instances we hold that such allegations, if proven to be true, would be tantamount to intentionally fraudulent, dishonest, or malicious acts as set forth in the second exclusion of the professional liability insurance policy. Therefore, upon reviewing the facts alleged in Count II of the federal complaint it was within reason for the insurer to determine that if these alleged facts were proved to be true, then coverage for claims arising under that count would be excluded from coverage by operation of the second exclusionary clause. Since the insurer would not be obligated to provide coverage for this claim, it was proper to deny Mr. Humphreys a defense with respect to Count II of the federal complaint.

Count II of the underlying complaint alleges that Niagara Fire Insurance Company breached its fiduciary duty to act in good faith towards its insured, Mr. Humphreys. In support of their position on this issue, appellants cite to Dercoli v. Pennsylvania National Mutual Ins. Co., 520 Pa. 471, 554 A.2d 906 (1989), but see, Miller v. Keystone Insurance Co., 402 Pa.Super. 213, 586 A.2d 936 (1991).

Appellants maintain that since Niagara failed to make any investigation into the truthfulness of the facts underlying the allegations in the federal complaint, that they therefore breached a fiduciary duty to act in good faith. However, “It is the face of the complaint and not the truth of the facts alleged therein which determines whether there is a duty to defend.” D’Auria v. Zurich Insurance Co., supra. “It is not the actual details of the injury, but the nature of the claim which determines whether the insurer is required to defend.” Springfield Twp., et al. v. Indemnity Insurance Co. of North America, 361 Pa. 461, 64 A.2d 761 (1949). Thus, Niagara was required merely to look to the complaint, look at the nature of the claims against Mr. Humphreys, and decide whether, if the allegations were proven to be true, would the policy provide coverage. Since the factual allegations on the. face of the federal complaint fell within the exclusionary language of the policy, Niagara properly declined the requested defense.

Count III of the underlying complaint seeks to recover punitive damages from Niagara for breaching its duties to defend and to act in good faith. Because we conclude that the trial court correctly dismissed Counts I and II of the underlying complaint for failing to state claims upon which relief could be granted, we necessarily conclude that appellants had no valid claim for punitive damages and that the trial court was also correct in dismissing Count III of the underlying complaint.

Order of the Court of Common Pleas of Allegheny County dismissing Counts I, II, and III of appellants’ complaint is hereby affirmed.

      . This court may affirm the decision of the trial court on any basis, even if the reason^ given by the trial court for its decision are incorrect. See, Coatesville Development Co. v. United Food and Commercial Workers, AFL-CIO, 374 Pa.Super. 330, 542 A.2d 1380 (1988).

      . Dexter-Bertholon-Rowland, Inc. (DBR) is also a named defendant in the underlying action. However, the preliminary objections, which are the focus of this appeal, were filed by Niagara Fire Insurance Company, only. DBR has indicated to this court that it did not intend to participate in this appeal. Since the trial court's order dismissed all counts as to the appellee, and completely dismissed them from the case, this is an appealable order. See, United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985).

      . 18 U.S.C. section 1961 et seq. Specifically, 18 U.S.C. section 1964(c) allows for a civil cause of action to recover damages caused by a violation of the RICO act.

      . 18 U.S.C. section 1341.

      . 18 U.S.C. section 1343.

      . 15 U.S.C. sections 1, 2.

      . Professionals Risk Management and Service Company was the acting risk manager designated under the insurance policy.

      . For purposes of this appeal, we set forth only those sections of the exclusionary clause which are relevant.

      . The Niagara policy provides coverage, "To pay on behalf of the insured all sums which the insured shall become obligated to pay as damages because of any claim or claims ... arising out of ... any act or omission of the insured in rendering or failing to render professional services for others in the insured's capacity as a lawyer ... except as excluded or limited by the terms, conditions and exclusions of this policy." The policy does not state that it will only cover claims brought by clients of the attorney or third party beneficiaries to the attorney-client relationship. Further, the policy does not state that it will only cover claims for malpractice. Rather, the language of the policy clearly states that it will provide coverage to the insured for any claim arising out of any act or omission of the insured in his capacity as a lawyer. A review of the federal complaint demonstrates that Mr. Humphreys was identified in the complaint as acting at all relevant times as an attorney, and was alleged to have performed the necessary legal work to help further the goals of the RICO enterprise. Thus, the question of whether the allegations in the federal complaint relate to acts done by Mr. Humphreys in his capacity as an attorney, is open to debate. However, because we conclude that for other reasons the trial court’s decision was correct, we are free to affirm that decision. See Coatesville Development Co. v. United Food and Commercial Workers, AFL-CIO, supra.

      . 18 U.S.C. 1964(c).


author: DEL SOLE, Judge:

text:
    590 A.2d 1273
    Richard L. WOODBURN and Beatrice Woodburn, His Wife v. CONSOLIDATION COAL COMPANY; Industrial Resources, Inc., Mountaineer Resources Inc., Mohawk Construction & Supply Company, Inc., Plasteel Products Corporation, Hi-Lo Powered Scaffolding, Inc. v. PANTHER CONSTRUCTION COMPANY, a Corporation, James Gordon, Sr., James Gordon, Jr., and Jeffrey Gordon, Individually and t/d/b/a Panther Construction Company (Two Cases). Appeal of MOHAWK CONSTRUCTION & SUPPLY COMPANY, INC. Appeal of INDUSTRIAL RESOURCES, INC.
    Superior Court of Pennsylvania.
    Argued Jan. 17, 1991.
    Filed May 3, 1991.
    Petition for Allowance of Appeal Denied Oct. 17, 1991.

      Avrum Levicoff, Pittsburgh, for Mohawk Const., appellant (at 854) and appellee (at 1038).
    John Fessler, Erie, for Indust. Resources, appellant (at 1038) and Thomas M. Lent, Erie, for Indust. Resources, appellee (at 854).
    Before ROWLEY, President Judge, and DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Appellee, Richard Woodburn, a sheeter employed by Western Avella Contracting Inc. (WACI), suffered severe injuries in a construction accident at a coal preparation plant owned by Consolidation Coal Company (Consol). He had been installing sheet metal siding approximately 80 feet off the ground on a scaffold supported by two power stirrups, one of which failed causing the scaffolding to fail. Mr. Woodburn fell to the ground, sustaining serious and permanent injuries.

Consol had hired Industrial Resources, Inc. (Industrial) to act as general contractor for the project. Industrial subcontracted the steel erection phase of the job to Mountaineer Resources, Inc., and further subcontracted with Mohawk Construction and Supply Company (Mohawk) to supply and install all of the sheeting. Mohawk supplied the sheeting and in turn subcontracted the installation of the sheeting to WACI. The defective stirrups had been supplied by Plasteel Products Corporation (Plasteel) and manufactured by Hi-Lo Scaffolding, Inc. (Hi-Lo).

Appellee and his wife sued the above parties, asserting various causes of action for negligence and strict liability. All of the defendants asserted crossclaims for contribution. Consol asserted claims for indemnification against Industrial and Mohawk under their respective construction contracts, and Industrial asserted a claim for indemnification under its subcontract with Mohawk. Following a jury trial, Appellee and his wife received a verdict of $8,000,000.00. The jury found Industrial, Mohawk and Plasteel to be negligent and apportioned their negligence as 45%, 35%, and 20% respectively. Prior to the commencement of the trial, Plasteel settled with the Woodburn’s under a joint tortfeasor’s type release patterned after the decision of the Pennsylvania Supreme Court in Charles v. Giant Eagle Markets, Inc., 513 Pa. 474, 522 A.2d 1 (1987).

Industrial and Mohawk filed timely motions for post-trial relief. In addition, both parties submitted briefs on Industrial’s contractual indemnity claim against Mohawk. The trial court denied the motions for post trial relief and ordered that Mohawk was contractually obligated to indemnify Industrial. Mohawk filed an appeal from that part of the trial court’s order and Industrial filed an appeal of its own raising numerous errors. For the purpose of this appeal, the cases have been consolidated.

We think it prudent to note the action has been settled between the Woodburns and those defendants found liable. The suit before us continues only to determine Industrial’s right to indemnification from Mohawk. During the pendency of these appeals, Mohawk and the Woodburns entered into a release and settlement agreement, wherein Mohawk paid $6.4 million to settle the claims against it, its insurer, and all other parties to the litigation except Industrial. Mohawk preserved the right to appeal the determination that it is obligated to indemnify Industrial. The agreement provides that, in the event of a final determination affirming the award of indemnity to Industrial, the claims of the Woodburns against Industrial would also be released. However, in the event of a final determination that Mohawk is not obligated to indemnify Industrial, then the Appellees have assigned to Mohawk all of their right to recover on their judgment against Industrial.

Appeal No. 00854 PGH 1990

In this appeal, Mohawk contends that the language of the indemnification clause in the contract between Mohawk and Industrial is insufficient to impose an obligation upon Mohawk to indemnify Industrial for liability caused by Industrial’s own negligence. The relevant indemnification clause contained in the portion of the agreement between Mohawk and Industrial states as follows:

ARTICLE 8—INDEPENDENT CONTRACTORS: INDEMNIFICATION OF CORPORATION: SUBCONTRACTOR agrees that in the performance of the work under this construction agreement, it shall act as an independent contractor, and all of its agents and employees, and the agent and employee of its subcontractors, shall be subject solely to the control, supervision and authority of SUBCONTRACTOR or its subcontractors— the right of inspection being reserved herein by INDUSTRIAL solely to determine whether the work is done in accordance with the contract documents and to evaluate completed works in connection with payments. SUBCONTRACTOR acknowledges that it has investigated the site where the work will be done under the construction agreement and is satisfied with all the local conditions pertinent to the work. SUBCONTRACTOR shall use extreme care, that is, care beyond that ordinarily required, in the performance of its work hereunder and shall adequately protect the materials, the work, persons working in the premises, the general public and adjacent property and SUBCONTRACTOR shall assume all risks of the premises and shall indemnify and hold harmless Consol and Industrial, their directors, officers and employees, from and against any and all claims and/or demands including all costs and expenses, including attorneys fees, for injury or alleged injury or death to persons, or damage to property, caused by, arising from, incidental to, connected with or growing out of the work to be performed under this construction agreement, including, but not limited to, any work to be performed by a subcontractor or agent of SUBCONTRACTOR; provided, however, that such indemnification and hold harmless shall not apply to claims for injury or alleged injury or death to persons, or damage to property (other than loss of, damage to, or loss of use of SUBCONTRACTOR’S property) caused by the sole negligence of Consol or INDUSTRIAL.

Mohawk specifically argues that the pertinent indemnity language is silent on whether it has a duty to indemnify Industrial for losses caused by the concurrent negligence of Mohawk and Industrial. Industrial claims that the last clause of the applicable provision precludes indemnification for injuries caused by Industrial’s sole negligence, and therefore the negative inference to be drawn is that any injuries occurring by less than the sole fault of Industrial fall within the scope of the indemnification clause. We agree with the position advanced by Industrial.

The question of whether an indemnity contract requires a contractor to indemnify an owner against the latter’s own negligence was first dealt with by our Supreme Court in Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907). That case involved an indemnification provision in a contract which required the contractor to indemnify the owner “from all loss, costs or expense ... arising from accidents to mechanics or laborers employed in the construction of said work____” An employee of the subcontractor was killed due to the owners negligence. After the owner paid a judgment to the estate, he attempted to recover from the contractor based on the indemnification clause. The court, wanting to avoid situations where indemnitors would act as insurers, concluded the general wording of the clause would not be construed to mean an indemnitor must indemnify the indemnitee for losses caused by the indemnitee’s own negligence. Lacking in that contract was a clause similar to the one involved in the present case that would relieve the contractor’s obligation to indemnify when injuries were caused by the sole negligence of the owner.

The indemnification issue was addressed again in Pittsburgh Steel Company v. Patterson, Emerson-Comstock, Inc., 404 Pa. 53, 171 A.2d 185 (1961). Pittsburgh Steel hired Patterson as a general contractor to construct a mill on property it owned. After one of Patterson’s subcontractor’s employees was injured, it was determined that both Pittsburgh Steel and Patterson were negligent. Pittsburgh Steel settled and sought indemnification from Patterson pursuant to their contract. The court denied indemnification, finding that the provision was ambiguous as to whether the indemnity clause covered the negligence of Pittsburgh Steel. Again this contract contained no “sole negligence” clause.

In 1971, this court addressed the situation involving a contract containing general indemnification language as well as a sole negligence clause. In Babcock & Wilcox Company v. Fischbach & Moore, Inc., 218 Pa.Super. 324, 280 A.2d 582 (1971), Fischbach & Moore’s (F & M) agreement to indemnify Babcock & Wilcox (B & W), specifically excluded situations where injuries were due wholly to the negligence of B & W. After an injury resulted from the combined negligence of the parties, B & W sought indemnification from F & M. This court concluded there was no ambiguity in the terms of the agreement and found that F & M had agreed to indemnify B & W from claims where B & W was partly at fault but not from claims arising wholly from the negligence of B & W.

Our Supreme Court has recently considered a case involving a contract which contained an indemnity clause, but lacked a sole negligence provision. In Ruzzi v. Butler Petroleum Company, Pa., 588 A.2d 1 (1991). A gasoline station operator entered into an agreement with Butler Petroleum Company to refurbish the station. The agreement contained an indemnity clause, wherein the operator agreed to indemnify Butler Petroleum from liability for damage caused during the reconstruction. The contract was without a sole negligence provision. After an employee was injured and a suit was initiated, Butler Petroleum was found to have been 84% negligent. On appeal Butler Petroleum queried whether the indemnity clause in the agreement was legally binding. The court stated that the law has been well settled in this Commonwealth for 87 years that if parties intended to include within the scope of their indemnity agreement a provision that covers losses due to the indemnitee’s own negligence, they must do so in clear and unequivocal language. The court went onto say that because Perry was the law when the indemnification agreement was entered into, we must assume the parties knew that the law would not recognize as effective their agreement concerning the negligent acts of the indemnitee (Butler Petroleum) unless an express stipulation concerning negligence was included in the document. As a result the court concluded that the only intent to be gleaned from the agreement was that the parties did not intend to indemnify for acts of the indemnitee’s own negligence.

In the case at hand, we find that Industrial and Mohawk expressly agreed, by the terms of their contract, and intended, that Mohawk would indemnify Industrial against any and all claims arising from the work to be conducted under the contract, except for any injuries caused by the “sole negligence” of Industrial. Since a jury found Industrial to be less than 100% negligent, Mohawk is contractually bound to indemnify Industrial.

Mohawk next questions whether the application of the indemnification clause, which allows Industrial to be indemnified for liability based upon violations of statutory and regulatory safety provisions contravenes public policy. We find that it does not.

This court recently addressed this issue in Fulmer v. Duquesne Light Co., 374 Pa.Super. 537, 543 A.2d 1100 (1988). In that case, Fulmer an employee of Rust Chimney, was injured while working on property owned by Duquesne Light. Rust Chimney, a subcontractor had agreed to indemnify Duquesne Light for any injuries occurring on the job unless the injury was the result of Duquesne Light’s own negligence. Rust Chimney argues that the indemnity clause was invalid and against public policy because Duquesne Light was attempting to shift their liability for their violations of the state safety standards. The Superior Court stated:

The indemnification clause in the agreement between Duquesne Light and Rust Chimney does not require Rust Chimney to indemnify Duquesne Light or make contribution unless it was negligent. It is not liable to make indemnification if Duquesne light was solely negligent in causing Fulmer’s injuries. Moreover, the agreement does not have the effect of defeating plaintiffs recovery, ... indemnification agreement in the instant case neither shifted liability for a violation of statute nor diminished the statutory safeguards which Fulmer was entitled to receive. The agreement did not violate public policy.

Id., 374 Pa.Superior Ct. at 546, 543 A.2d at 1104. We find that the reasoning of that case applies equally to the case sub judice. Mohawk had no duty to indemnify Industrial if, Industrial, through its own negligence was found to have been the sole cause of injuries suffered by Appellee. Industrial remained liable for its own negligence if that negligence was the singular cause of the injury. Furthermore, the agreement does not vitiate Woodburn’s right to recover since he could claim payment from any party responsible, and is not bound by any indemnification agreements.

The public policy argument asserted by Mohawk was likewise considered in Egan v. Atlantic Richfield Company, 389 Pa.Super. 290, 566 A.2d 1249 (1990). Our court held that since the Federal regulation involved in that case required joint responsibility of the indemnitor and the indemnitee for compliance with the safety regulations, public policy was not circumvented. In the present case, Mohawk contends that to enforce the indemnity provision would relieve Industrial from their obligation to comply with Federal safety regulations. We disagree. Industrial remains liable for compliance with Federal regulations. Its obligation to compensate those injured as a result of safety violations is shared by Mohawk, only if Mohawk was also negligent. Despite the indemnity clause, under the terms of the agreement, Industrial would be liable for any injuries caused by its sole negligence. This furnished Industrial with ample motivation to comply with the federal safety regulations.

We also point out that for a party responsible with complying with safety regulations, to ignore those regulations because of an indemnity clause in a contract is very risky. That clause only has meaning if the indemnitor has the assets to satisfy its agreed indemnification. In these cases, the plaintiff can seek collection of his entire judgment against any party found liable. The indemnitee may be required to pay the full judgment and, if the indemnitor is financially weak, not be compensated. This is also incentive to require compliance with federal regulations. Accordingly, we hold that the indemnity clause contained in the agreement between Mohawk and Industrial was not violative of public policy.

Appeal No. 1038 PGH 1990

Due to our determination of the indemnity issue, we find it unnecessary to reach the issues raised by Industrial. These issues are moot because of the settlement by Mohawk of the plaintiffs’ claims.

Judgment affirmed.

      . The Woodburns had also filed a separate cause of action in the Court of Common Pleas of Allegheny County against other parties who were also joined as additional defendants in the instant action. After the actions were consolidated, the additional defendants were either dismissed prior to trial or were granted non-suits. Industrial has not appealed these rulings.


author: CIRILLO, President Judge:

text:
    590 A.2d 1278
    Raymond and Georgene PAGE, h/w, Individually and as Parents and Natural Guardians of Frank Page, a Minor, Appellants, v. Dr. Lamar EKBLADH, M.D.
    Superior Court of Pennsylvania.
    Argued Dec. 11, 1990.
    Filed May 13, 1991.

      John P. McKelligott, Philadelphia, for appellants.
    Joseph A. Ricci, Harrisburg, for appellee.
    Before CIRILLO, President Judge, and JOHNSON and BROSKY, JJ.
   CIRILLO, President Judge:

Raymond and Georgene Page, (the “Pages”) individually and as parents and natural guardians of Frank Page, appeal the order entered in the Court of Common Pleas of Dauphin County granting defendant-appellee Dr. Lamar Ekbladh’s (“Ekbladh”) preliminary objections in the form of a motion to dismiss pursuant to the doctrine of forum non conveniens. See 42 Pa.C.S. § 5322(e). We vacate the order entered by the trial court and remand for further proceedings.

The factual and procedural history of the case is as follows. On July 19, 1983, in Williamsburg, Virginia, Ekbladh, an obstetrician, admitted Georgene Page, in active labor, to the Williamsburg Community Hospital. Mrs. Page had been under the care of the medical offices of Jones and Jenkins with whom Ekbladh was associated. Ekbladh had previously examined Georgene Page on July 15, 1983, at which time he told her she was experiencing false labor. On July 20, 1983, Ekbladh delivered the Pages’ son, Frank. Frank was born with numerous congenital anomalies and retardation so severe that he will always require care and assistance with the most basic activities of daily living. At the time of Frank’s birth both the Pages and Ekbladh were citizen-residents of the Commonwealth of Virginia.

In 1985, the Pages moved to Philadelphia, Pennsylvania, where they presently reside. In 1987, Ekbladh moved to Dauphin County, Pennsylvania, where he continues to reside. On February 8, 1989, the Pages filed the present action in Dauphin County, alleging that Frank’s irreversible condition was caused by Ekbladh’s negligent pre- and postnatal treatment of Georgene Page. On February 28, 1989, Ekbladh filed preliminary objections in the form of a motion to dismiss pursuant to the doctrine of forum non conveniens. On April 6, 1990, the trial court sustained Ekbladh’s preliminary objections and dismissed the Pages’ action based on the premise that the Commonwealth of Virginia was a more convenient forum than Dauphin County for litigation of the Pages’ malpractice action. This timely appeal followed.

We note that although the Pages have enumerated two issues and several sub-issues in their statement of questions involved, essentially, they claim that the trial court abused its discretion in dismissing their action pursuant to the doctrine of forum non conveniens. We therefore address these issues as a single claim.

The decision to dismiss an action because it may be more conveniently litigated elsewhere is discretionary with the trial court and is, therefore, reviewable only for an abuse of discretion. Beatrice Foods Co. v. Proctor and Schwartz, 309 Pa.Super. 351, 359, 455 A.2d 646, 650 (1982) (citations omitted). Moreover, “[a]buse of discretion is shown by a record of misapplication of the law, or judgment that is manifestly unreasonable, or motivated by partiality, prejudice, bias, or ill-will.” Id., 309 Pa.Superior Ct. at 359, 455 A.2d at 651 (citing Buchanan v. Century Federal Savings and Loan Association, 259 Pa.Super. 37, 393 A.2d 704 (1978)). With this standard in mind, we address the trial court’s application of the doctrine of forum non conveniens to the facts of this case.

The doctrine of forum non conveniens, which allows a court to decline jurisdiction when a more convenient or appropriate forum for the litigation is available, developed in Scotland in the early 19th Century. See Multinationals Fight Back With The Doctrine of Forum Non Conveniens, 56 Def.Couns.J. 391, 392 (Oct. 1989). In this country, the doctrine has traditionally been applied by federal, admiralty and state courts when a plaintiff chooses a forum not solely in search of justice but to “vex, harass, or oppress” the defendant. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). See also Alford v. Philadelphia Coca-Cola Bottling, 366 Pa.Super. 510, 531 A.2d 792 (1987) (same). In recent years, the doctrine has been applied with some frequency to deny foreign plaintiffs a forum where their chief purpose in pursuing the litigation is to benefit from more favorable law. See Norman v. Norfolk and Western Railway Company, 228 Pa.Super. 319, 323 A.2d 850 (1974). See also In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India, in December 1984, 634 F.Supp. 842 (S.D.N.Y.1986), aff'd and modified, 809 F.2d 195 (2d Cir.1987), cert. denied, 484 U.S. 871, 108 S.Ct. 199, 98 L.Ed.2d 150 (1988); Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981).

Neither of these underlying policy concerns, harassment of the defendant and application of more favorable law, are applicable to the case at hand. The record reveals that the Pages have sued Ekbladh in Pennsylvania solely because it is their home forum, as well as the home forum of Ekbladh. We can find no case law, either in this Commonwealth or in the federal courts, where, although both the plaintiff and the defendant have been citizen-residents of the original forum, the trial court has dismissed the action because another forum appears more convenient. The fact that both the plaintiffs and the defendant presently reside in Pennsylvania would seem to warrant the retention of jurisdiction by the trial court over this action. However, for the purpose of completeness, we will undertake a further review of the forum non conveniens factors as they apply to the Pages’ suit.

First,
the two most important factors for the court to consider are (1) a plaintiff’s choice of the place of suit will not be disturbed except for weighty reasons, and (2) no action will be dismissed unless an alternative forum is available to the plaintiff.

Beatrice, 309 Pa.Super. at 359, 455 A.2d at 650. Furthermore, “a court will therefore not dismiss for forum non conveniens unless justice strongly militates in favor of relegating the plaintiff to another forum.” Id., 309 Pa.Superior Ct. at 360, 455 A.2d at 650 (emphasis added). This is especially true when the plaintiff has chosen to litigate in his or her home forum. In re Union Carbide, supra; Piper, supra.

In order to determine if there are sufficient “weighty reasons” which may overcome a plaintiffs choice to litigate in his or her home forum, the trial court must consider both the interests of the parties and the interests of the public. Alford, supra; Beatrice, supra; Norman, supra. Although the doctrine is flexible, traditionally, the following factors are considered: ease of access to sources of proof; availability of compulsory process; cost of obtaining attendance of witnesses; enforceability of a judgment; and the interests of the two forums in the outcome of the litigation, which bears upon the costs and time imposed upon the people of a community which may or may not have a relation to the litigation. See Flaxman v. Burnett, 393 Pa.Super. 520, 531-32, 574 A.2d 1061, 1067 (1990). See also Alford, supra; Beatrice, supra; Norman, supra; In re Union Carbide, supra; Piper, supra; Gilbert, supra.

Applying these factors to the action before us, we are compelled to conclude that jurisdiction should properly have been retained in the Commonwealth of Pennsylvania. Furthermore, as application of the doctrine of forum non conveniens in this instance results in dismissal of the Page’s suit in this Commonwealth, we conclude that the proper analysis involves an evaluation of the appropriateness of the two Commonwealths, Pennsylvania and Virginia, as opposed to the evaluation which the trial court conducted, of the appropriateness of Dauphin County and Virginia. See Beatrice Foods Co. v. Proctor and Schwartz, 309 Pa.Super. 351, 455 A.2d 646 (1982) (forum non conveniens analysis evaluated the forums of Pennsylvania and Maryland). An analysis of the appropriateness of a county as a forum is proper when evaluating transfer of venue from one county to another, within the Commonwealth, pursuant to Pennsylvania Rule of Civil Procedure 1006(d)(1). See Petty v. Suburban General Hospital, 363 Pa.Super. 277, 525 A.2d 1230 (1987) (forum non conveniens analysis evaluated the forums of Philadelphia County and Montgomery County on motion to transfer venue).

We first consider the private interest factors of the parties. Initially, we note that although sources of proof are located in Virginia, the burden of obtaining this evidence falls upon the Pages who have clearly undertaken it and its accompanying costs. Further, Ekbladh admits that compulsory process is available to him in securing unwilling witnesses.

In examining other private interest factors it is also necessary to consider that the true party at interest in this action, Frank Page, is a citizen-resident of this Commonwealth whose health and welfare, due to his profound retardation, will likely be the responsibility of this Commonwealth for the rest of his natural life. Frank’s parents, the Pages, work and live in Pennsylvania and pay taxes to this Commonwealth. As citizens of this Commonwealth they have a right to pursue legal actions in its courts. The Pages have spent time, money and energy instituting their action in the courts of Pennsylvania; if their appeal is denied, such efforts and expenses will have to be duplicated in the courts of Virginia.

The Pages also assert that they will be greatly prejudiced if they choose to pursue their action against Ekbladh in Virginia because of the difficulty and expense in traveling, maintaining accommodations, and caring for Frank while they are away from their home. If their action continues in Pennsylvania, however, one parent can stay home with Frank while the other parent is present in court. We note that this situation is further compounded by the fact that the Pages have other young children who require parental supervision. On the other hand, Ekbladh will suffer no personal hardship if the action is litigated in Pennsylvania.

We next address the public interest factors which must be considered in a forum non conveniens analysis. The trial court concluded that retaining jurisdiction in Pennsylvania would increase court congestion and impose jury duty upon a Pennsylvania community which has no relation to the litigation. On the contrary, the fact that all the parties are citizen-residents of this Commonwealth dictates that the courts of this Commonwealth are the proper arena for resolving disputes between them. See Flaxman, supra; In re Union Carbide, supra; Piper, supra; Gilbert, supra. Furthermore, neither Ekbladh nor the trial court has made any effort to demonstrate that the trial courts of Virginia are less congested than those of Pennsylvania and that, therefore, the burden of litigating the action in Virginia would be less onerous to the courts of that Commonwealth than litigation in this Commonwealth would be to our own judicial system.

Moreover, although the cause of action accrued in Virginia, neither party is now a resident of that Commonwealth. Virginia, therefore, has little interest in who wins or loses a suit which involves citizens of another jurisdiction. We further note that although six of the Pages’ thirteen counts in their complaint involve Virginia law, mathematically, it follows that an equal or greater number of counts involve Pennsylvania law, lending weight towards retaining jurisdiction in Pennsylvania. Additionally, if the action must be litigated in Virginia there is a possibility that two of the Pages’ counts will actually be lost, due to the expiration of a Virginia statute of limitations. This result would seem to indicate not only that Virginia is an “inconvenient” alternative forum, but that Virginia may not be even an adequate alternative forum for this action. See Beatrice, supra; In re Union Carbide, supra; Piper, supra; Gilbert; supra.

In conclusion, the doctrine of forum non conveniens is a discretionary doctrine which attempts to balance the interests of the plaintiff, the defendant and the forum. See Petty v. Suburban General Hospital, 363 Pa.Super. 277, 525 A.2d 1230 (1987); Flaxman, supra; Beatrice, supra; Piper, supra; Gilbert, supra. The plaintiff’s choice of forum is given great weight, especially if it is his or her home forum. Norman, supra; Piper, supra; Gilbert, supra. “A court should not deprive a plaintiff of his or her chosen forum unless the defendant clearly adduces facts that ‘either (1) establish such oppressiveness and vexation to a defendant so as to be all out of proportion to a plaintiffs convenience ... or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems.’ ” Petty, 363 Pa.Super. at 281, 525 A.2d at 1232 (citations omitted). We are not persuaded that Ekbladh has met the burden necessary to overcome the Pages’ choice of their own forum to litigate this action. Petty, supra. As a result, we conclude that the trial court abused its discretion in misapplying the doctrine of forum non conveniens to the Pages’ claims. Beatrice, supra.

The order entered by the trial court is vacated and the case is remanded for proceedings consistent with this opinion.

      . Section 5322(e) of Title 42 provides:
      (e) Unconvenient forum.—When a tribunal finds that in the interest of substantial justice the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.
      42 Pa.C.S. § 5322(e).

      . The Pages present the following issues in their statement of questions involved:

        1. Whether the discretionary doctrine of forum non conveniens justifies a Court’s depriving Plaintiffs of one or more causes of action, timely brought in a Court of proper jurisdiction and venue, by dismissing the Complaint to have it filed elsewhere when such cause of action (although timely filed herein) was barred by the statute of limitations?
      a. Whether the causes of action herein were timely brought when this action was filed?
      b. Whether any of the causes of action stated in the Complaint were time barred when the Order was entered granting the Preliminary objection based on the doctrine of forum non conveniens?

      c. Whether a Court is entitled, solely on grounds of its own convenience, to deprive Plaintiffs of a forum in which to pursue their claims when jurisdiction and venue are proper?
      2. Whether the Plaintiffs’ choice of forum should be lightly disturbed by the Court?

      . Because we determine that there are sufficient reasons to retain jurisdiction over this action whether or not the Pages will lose two of their thirteen counts, we will not undertake a detailed analysis of this problem.


author: JOHNSON, Judge.

text:
    590 A.2d 1282
    COMMONWEALTH of Pennsylvania v. Kenneth B. FORMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued April 4, 1991.
    Filed May 13, 1991.

      Stuart M. Golant, Towanda, for appellant.
    Albert Ondrey, Asst. Dist. Atty., Towanda, for Com.
    Before JOHNSON, HUDOCK and CERCONE, JJ.
   JOHNSON, Judge.

We are asked to consider whether the corpus delicti rule, which prohibits criminal convictions based solely upon a confession of the accused, applies to proceedings involving summary offenses. We hold the rule applicable and accordingly reverse judgment of sentence and direct that the defendant be discharged.

At the conclusion of a trial de novo in the Court of Common Pleas of Bradford County, Kenneth B. Forman was found guilty of the summary offense of Unlawful Use of Lights While Hunting, 34 Pa.C.S. § 2310(a)(2). He was immediately sentenced to pay a fine of $600.00 and costs. The Honorable John C. Mott then advised Forman of his post-verdict rights and stated that the sentence would become effective only after the denial of any post-verdict motions, if filed. Forman appeals from the denial of his post-verdict motions, filed after sentencing.

At trial, Officer Daniel Reynolds of the Sayre Police Department testified that on November 11,1989, he stopped Forman because a tail light on the truck that he was driving was not functioning. Officer Reynolds testified that he observed a .22 rifle on the front seat of the truck between two passengers, and that he directed the four occupants to exit the vehicle. Officer Reynolds testified that, after the occupants left the vehicle, he observed what appeared to be blood on the floor mat on the passenger’s side. He testified that, upon searching the vehicle, he also found a knife, a spot light, a flashlight, one live .22 cartridge, and one spent .22 cartridge. Officer Reynolds also testified that he discovered a box of 20-gauge shotgun shells in the rear of the vehicle, as well as a tarp with what appeared to be hair and more blood. Officer Reynolds testified that he called his dispatcher and asked that the Game Commission be contacted.

Wildlife Conservation Officer William Bower of the Pennsylvania Game Commission was qualified as an expert in the field of deer hair identification. He testified that he arrived at the scene at approximately 11:00 p.m., and that he observed what appeared to him to be blood and deer hair in the back of the truck. One hair, and a paper towel with some of the substance which appeared to be blood, were entered into evidence. Officer Bower testified that, in his opinion, that hair was deer hair. Officer Bower further testified that Forman had been advised of his Miranda rights, and admitted to killing a deer with a 20-gauge shotgun and the aid of his vehicle’s headlights two nights earlier.

Wildlife Conservation Officer Richard Larnerd of the Pennsylvania Game Commission testified that he had read Miranda warnings to Forman, who answered the questions. Officer Larnerd testified that he asked Forman what he knew about the deer hair and deer blood in the back of the truck, and that Forman stated “I killed the deer. Just give me the citation.” Officer Larnerd testified that Forman admitted to having killed the deer a couple days prior. He also testified that Forman admitted to using headlights on his pickup truck and a 20~gauge shotgun with slugs to kill the deer. When asked about Forman’s clothing that night, Officer Larnerd testified that they were covered with blood and hair. Officer Larnerd also testified that Forman admitted to having a hind quarter of the deer at his house and that the rest had been given away.

We first consider Forman’s contention that the corpus delicti rule was not satisfied, and that therefore his confession was not properly admissible at trial. The initial issue for our consideration is whether the corpus delicti rule is applicable to proceedings on summary offenses.

Pennsylvania courts apply the rule that “a criminal conviction may not stand merely on the out of court confession of one accused, and thus a case may not go to the fact finder where independent evidence does not suggest that a crime has occurred.” Commonwealth v. Edwards, 521 Pa. 134, 144, 555 A.2d 818, 823 (1989); Commonwealth v. Byrd, 490 Pa. 544, 566, 417 A.2d 173, 179 (1980). As stated by our Supreme Court:

[t]his rule is rooted in a hesitancy to convict one of crime on the basis of his own statements only.
“The grounds on which the rule rests are the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed....”
Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940).

Commonwealth v. Ware, 459 Pa. 334, 365-66, 329 A.2d 258, 274 (1974). Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967), illustrates one of the justifications for this rule. In that case, our Supreme Court reversed a conviction for arson where no evidence other than the defendant’s confession had been presented that a fire had been the result of arson. It was noted that Leslie had, on a previous occasion, confessed to crimes which further investigation proved to be false. Leslie, 424 Pa. at 333, n. 1, 227 A.2d at 902, n. 1.

Several Pennsylvania courts have suggested that the rule applies primarily in felony prosecutions. Commonwealth v. Palmer, 265 Pa.Super. 462, 465-66, 402 A.2d 530, 532 (1979) (applicability of rule in misdemeanor case is “doubtful proposition at best”); Commonwealth v. Gerhart, 93 Montg. 10 (1970) (rule not applicable to summary offenses); Commonwealth v. Quick, 15 Pa.Dist. 260, 31 Pa.Co. 541 (1905) (reason for rule does not exist in misdemeanor and violations of police regulations). However, in Commonwealth v. Krzesniak, 180 Pa.Super. 560, 119 A.2d 617 (1956), an en banc panel of this court stated by way of dictum that the “classification of crimes as felonies or as misdemeanors is most illogical in Pennsylvania, and in general we will ... require proof of the corpus delicti on charges of misdemeanors as a prerequisite to the admission of a defendant’s confession.” Krzesniak, 180 Pa.Super. at 565-66, 119 A.2d at 619. And in Commonwealth v. Brogan, 270 Pa.Super 197, 411 A.2d 248 (1979), our court applied the rule to a summary offense without comment.

We believe that the primary purpose of the rule is to protect against unjust convictions that might result from coercion, confusion or mental illness, and that this concern is involved in all criminal trials, whether the offenses are classified as summary, misdemeanor or felony. Further, the rule may be especially important where an accused has no counsel or cannot have one appointed, as is often the case in lesser offenses. Finally, the language of the rule, as stated by our Supreme Court, encompasses “criminal convictions,” not merely “felony convictions.” See, e.g., Byrd, 490 Pa. at 556, 417 A.2d at 179 (1980) (“a criminal conviction may not stand merely on the out of court confession of one accused____”). Accordingly, we hold that the corpus delicti rule is applicable to criminal proceedings involving only summary offenses. We know of no authority, nor any rationale, which would compel a contrary result.

We turn to the instant case to determine whether the requirements of the rule were satisfied. As stated, the corpus delicti rule prohibits a case from going to the jury “where independent evidence does not suggest that a crime has occurred.” Edwards, supra, 521 Pa. at 144, 555 A.2d at 823; Byrd, 490 Pa. at 556, 417 A.2d at 179 (1980). That evidence must be sufficient to establish a corpus delicti, which consists of two elements: the occurrence of a loss or injury, and some person’s criminal conduct as the source of that injury. Ware, supra, 459 Pa. at 365, 329 A.2d at 274 (1974) (citing 7 Wigmore, Evidence § 2072 at 401 (3d ed. 1940)); Leslie, supra. While the burden of establishing the corpus delicti “is not equivalent to the Commonwealth’s ultimate burden of proof [and] the Commonwealth need not prove the existence of a crime beyond a reasonable doubt” in order to introduce an incriminating out-of-court statement, Edwards, 521 Pa. at 144, 555 A.2d at 823; Byrd, 490 Pa. at 556, 417 A.2d at 179, the evidence of a corpus delicti is insufficient if it is merely equally consistent with noncriminal acts as with criminal acts. Byrd, 490 Pa. at 556, 417 A.2d at 179 (citing Leslie).

In this case, Forman was charged under a section of the Game and Wildlife Code which states, in pertinent part:

§ 2310. Unlawful use of lights while hunting
(a) General rule.—[I]t is unlawful for any person or group of persons to engage in any of the following activities to any degree:
(2) Aid, assist or conspire either in the killing or taking or in an attempt to kill, take, possess, transport or conceal any game or wildlife or a part thereof which has been killed or taken by use of any artificial light.

34 Pa.C.S. § 2310(a)(2). The Commonwealth’s evidence of the loss or injury element of the corpus delicti consisted of 1) what appeared to be blood in the truck and 2) a deer hair. Although the corpus delicti may be proved by circumstantial evidence, Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982), this evidence fails to establish a “loss or injury” in satisfaction of the Byrd and Leslie standard. This evidence also fails to demonstrate the “criminality” element; indeed, the evidence does not even suggest that, if a deer was killed, it was done illegally. The evidence presented by the Commonwealth, considered in the absence of Forman’s admissions, was insufficient to carry the burden of demonstrating that a crime had, in fact, occurred. Accordingly, we reverse judgment of sentence, and remand this case to the trial court with directions to enter an order arresting the judgment and discharging Forman. Commonwealth v. Moyer, 277 Pa.Super. 172, 419 A.2d 717 (1980).

Our resolution of the corpus delicti issue renders consideration of Forman’s other issues unnecessary. Nevertheless, we address the sentencing procedure employed by the trial court, if only by way of dictum.

The trial court in this case immediately imposed sentence at the conclusion of the trial, before post-verdict motions were filed or decided. This was done over the objection of defense counsel, who referred the court to Pa.R.Crim.P. 1123. Summary Appeal Trial Transcript, April 30, 1990, pages 96-100. In his opinion, Judge Mott states that “[t]his has been the long-standing practice of the present and former judges of this Court when hearing summary cases,” and that it “complies with Rule 83(d)” of the Pennsylvania Rules of Criminal Procedure. Opinion of September 25, 1990, at 2.

Contrary to the Opinion of Judge Mott, Rule 83 applies to summary proceedings only, and not to de novo trials resulting from appeals therefrom. We have held that de novo proceedings must comply with general post-verdict rules. Commonwealth v. Adame, 363 Pa.Super. 405, 408, 526 A.2d 408, 409-10 (1987); Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (opinion by Popovich, J., with Montgomery, J. concurring in result, and Brosky, J. dissenting). In Ragoli, we stated:

At this time we would point out that the procedure employed by the court below in imposing sentence prior to the disposition of post-verdict motions is in contravention of settled practice in this area of procedural law. See Comment to Pa.R.Crim.P. 1123, which reads:
Post-verdict motions must be decided before sentencing, because the appeal lies from the final order of the trial court, which ordinarily includes sentence. See Judicial Code, 42 Pa.C.S. §§ 102, 722, 742, 5105(a). See also, Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).
The implementation by the court below of a procedure ostensibly at odds with accepted practice created the anomalous situation in which once the sentence was “imposed” ... the appellant had thirty (30) days therefrom to perfect an appeal. See Pa.R.App.P. 903(a). Yet the court below attempted to avoid this result by “suspending” sentence pending the filing and disposition of post-verdict motions.
In the future, to avoid this procedural entanglement which does little to advance the interests of the judiciary and the litigants, the disposition of post-verdict motions must precede the imposition (“suspended” or otherwise) of the judgment of sentence. See Commonwealth v. Pringle, 304 Pa.Super. 67, 450 A.2d 103 (1982); Commonwealth v. Williams, 290 Pa.Super. 158, 434 A.2d 179 (1981).

Ragoli, 362 Pa.Super. at 395-96, n. 2, 524 A.2d at 935-6, n. 2 (1987). We have further articulated the problems that are created by failing to adhere to this procedure in other cases. See, e.g., Commonwealth v. Eliason, 353 Pa.Super. 321, 509 A.2d 1296 (1986), alloc. den. 517 Pa. 592, 535 A.2d 81 (1987); Commonwealth v. Bradley, 381 Pa.Super. 528, 554 A.2d 127 (1989); Commonwealth v. Hurst, 367 Pa.Super. 214, 532 A.2d 865 (1987). We reaffirm the position we took in those cases, and express our disapproval of the procedure followed by the trial court here.

Judgment of Sentence reversed. Case remanded with directions to arrest judgment and discharge the appellant.