author: WIEAND, Judge:

text:
    523 A.2d 779
    COMMONWEALTH of Pennsylvania, Appellee, v. Walter CARTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1987.
    Filed April 2, 1987.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

Walter Carter was tried by jury and was found guilty on two counts of simple assault. On May 9, 1985, he was sentenced to two consecutive, two year terms of probation. On August 16, 1985, Carter was arrested and charged with aggravated assault, simple assault, recklessly endangering another person, and possession of an instrument of crime. On October 21, 1985, Carter and his attorney appeared before the court for a preliminary or Gagnon I hearing to enable the court to determine whether probable cause existed for believing that Carter had violated the terms of his probation by committing one or more new offenses. During the course of this hearing, the court learned that Carter had failed to report as ordered during probation. Upon learning this fact, the court immediately revoked probation and imposed a sentence requiring Carter to serve concurrent terms of imprisonment for not less than one year nor more than two years. The later charges, which had led to the Gagnon I hearing, were subsequently dismissed by the Municipal Court of Philadelphia.

Carter filed an appeal from the order revoking probation and imposing a sentence of imprisonment. He argues (1) that the court erred when it summarily revoked probation without prior written notice that he was being accused of technical violations; and (2) that because he cannot now receive a speedy revocation hearing, the convictions for simple assault should be vacated and he should be discharged.

We must initially determine whether, as the Commonwealth contends, the alleged irregularity in the probation violation proceeding is moot. The sentence of imprisonment imposed for probation violation has been fully served, and the parole period has now expired. Because there are collateral consequences which remain, however, we conclude that the validity of the probation violation adjudication is not a moot issue.

In Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971), the Supreme Court held that when a criminal sentence has been fully satisfied, a collateral attack upon the underlying conviction is not moot and can be considered if it is shown that the criminal sentence may directly affect any subsequent criminal prosecution or conviction. This rule was later extended to have application even if one could not show any criminal consequences, but could show actual or potential civil consequences. See: Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979); Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976). See also: Commonwealth v. Markley, 348 Pa.Super. 194, 501 A.2d 1137 (1985). Although these cases involved attacks upon the underlying convictions, the principles announced therein are equally applicable where, as here, an attack is made upon an order revoking probation and imposing a sentence of imprisonment. See: Nickens v. Board of Probation & Parole, 93 Pa.Cmwlth. 313, 317 n. 8, 502 A.2d 277, 278 n. 8 (1985) (future consequence rule applied where challenge involved order revoking parole). See also: Commonwealth v. Adams, 350 Pa.Super. 506, 519, 504 A.2d 1264, 1271 (1986) (same principles of mootness applied where challenge involved legality of sentence); Commonwealth v. Kelly, 274 Pa.Super. 242, 245, 418 A.2d 387, 388 (1980) (collateral consequence rule applied where defendant challenged sentencing court’s interpretation of his sentence).

In the instant case, the revocation of Carter’s probation and the subsequent imposition of sentence would have potential criminal consequences if Carter were subsequently to be convicted and sentenced for another offense. The fact that it had previously been determined that he was a poor probation risk would most certainly appear in a presentence report and would be given consideration in imposing sentence for a new offense. The validity of the probation violation proceedings, therefore, is not moot.

“[D]ue process requires that a probationer receive written notice of the claimed probation violations prior to commencement of the revocation hearing____” Commonwealth v. Quinlan, 488 Pa. 255, 258, 412 A.2d 494, 496 (1980), citing Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973). See: Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Commonwealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246 (1983). The purpose of requiring prior written notice “is to ensure that the ... probationer can sufficiently prepare his case, both against the allegations of violations, and against the argument that the violations, if proved, demonstrate that ... probation is no longer an effective rehabilitative tool and should be revoked____ [T]he requirement bears directly on the ability to contest revocation.” Commonwealth v. Perry, 254 Pa.Super. 48, 52, 385 A.2d 518, 520 (1978).

In the instant case, the record demonstrates that Carter received no notice of any alleged technical violation of his probation before he appeared before the court. Both he and his attorney appeared at the hearing believing it to be a preliminary, or “Gagnon I”, hearing, for the purpose of determining whether there was probable cause to believe that he had violated the terms of probation by committing another crime. The record reveals that Carter’s probation officer also believed this to be the purpose of the hearing. See: N.T. 10/21/85 at 2. When the hearing court changed direction and, over defense objection, determined that Carter had committed a technical violation by failing to report as ordered, the court committed error. The revocation of probation and the subsequent judgment of sentence, therefore, will be vacated.

Carter argues further that because he cannot now receive a speedy revocation hearing we should not remand for a new hearing, but should discharge him. We disagree. “ ‘When a defendant has appealed from the judgment of sentence resulting from a probation revocation and obtains a new hearing, the court focuses on the period after remand

in assessing whether a hearing has been held with reasonable promptness.’ ” Commonwealth v. Ballard, 292 Pa.Super. 129, 133, 436 A.2d 1039, 1041 (1981), quoting Commonwealth v. Honeyblue, 276 Pa.Super. 107, 111, 419 A.2d 118, 120 (1980). See: Commonwealth v. Martin, 262 Pa.Super. 113, 118 & n. 4, 396 A.2d 671, 673 & n. 4 (1978). Therefore, Carter’s right to a speedy hearing under Pa.R.C.P. 1409 will not be violated by a remand to the hearing court for another probation violation hearing.

Moreover and in any event, the failure to receive a speedy hearing, as required by Pa.R.Crim.P. 1409, would not entitle appellant to a reversal of the judgment of sentence entered following jury trial and conviction. A defect in the probation violation hearing impairs only the validity of the order revoking probation; it can have no effect on the guilty verdict or the sentence of probation entered thereon.

The judgment of sentence for probation violation is reversed, and the case is remanded for a new hearing on Commonwealth allegations that appellant violated the terms and conditions of his probation. Jurisdiction is not retained.

      . The same jury acquitted Carter of two counts of robbery, two counts of aggravated assault, two counts of theft, and one count of possessing an instrument of crime.

      . Because Carter had previously been confined to jail for seventeen months while awaiting trial on the initial charges, however, he was released on parole immediately.

      . See: Gagnon v. Scarpelli, supra.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    523 A.2d 782
    Lorraine WALKER v. Albert WALKER. Appeal of Patricia WALKER.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1986.
    Filed April 2, 1987.

      Caryl A. Oberman, Philadelphia, for appellant.
    William J. Barker, Jr., Philadelphia, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and BECK, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

Appellant is a nineteen year old, mentally retarded woman who seeks relief from the trial court’s order, entered in a custody proceeding, that she visit her mother, undergo a psychological examination, and attend family counseling. In this appeal, appellant argues, inter alia, that the trial court lacked subject matter jurisdiction since she was eighteen years old at the time the trial court issued its order and was no longer a “child” as defined by statute.

Appellant’s parents were separated in 1973 and divorced in 1974. Appellant lived with her mother from 1973 to 1980, visiting her father on alternate weekends. In 1980, father sought custody of appellant. For the next two years, appellant spent time with both parents. In 1982, the parents agreed that each of them would have custody of appellant for alternating six month periods, and that appellant would visit the non-custodial parent every other weekend. A court order was entered upon this agreement in 1983.

At the end of father’s custodial period, he requested mother to allow appellant to remain in his custody with his wife and their two children. Mother agreed, but continued to visit appellant on alternate weekends. In 1985, about the time that appellant turned eighteen years old, she refused to visit her mother. Mother then filed a petition for contempt against father. A hearing was held on this matter on December 20, 1985. Though father received notice of the hearing, appellant did not, nor was she individually represented by counsel at the hearing. However, she did testify regarding her desire not to visit her mother.

The trial court found that appellant had been strongly influenced by father to reject mother and thus entered an order imposing the obligations previously mentioned upon appellant. Appellant filed a timely appeal from this order. In both her brief to this Court as appellee and in a subsequently filed motion to quash, mother asserts first, that appellant was never a party to the trial court action and thus lacks standing to appeal under Pa.R.A.P. 501, and second, that appellant waived her issues by failing to raise them in the trial court. Father has taken no action in this appeal.

We first address the standing issue raised by mother. The relevant rule in this Commonwealth is stated in Newberg by Newberg v. Board of Public Educ., 330 Pa.Super. 65, 478 A.2d 1352 (1984): “an appeal by one who is not a party to a proceeding in the trial court must be quashed.” Id., 330 Pa.Superior Ct. at 68-69, 478 A.2d at 1354 (citations omitted). See also Pa.R.A.P. 501. It is undisputed that appellant was not a named party to the trial court action. However, appellant did participate in the action. Moreover, she was indispensable to that action since the moving party, mother, sought to compel appellant, not father to visit her. Finally, because it is appellant’s rights rather than father’s which are affected, we question who is more aggrieved by the trial court’s order in this matter than appellant?

What distinguishes this case from other custody actions is that the subject of the litigation is no longer a “child.” Yet, her age may not preclude the trial court’s order from being enforced by the local law enforcement agency. We hold that under these circumstances, where a custody order imposes obligations upon an individual who is eighteen years old or older, the person aggrieved has standing to appeal that order.

Regarding mother’s contention that appellant waived her issues by failing to raise them in the trial court action, we note, simply, that under Pa.R.C.P. 1915.10(b) (post-trial motions may not be filed to an order of custody, partial custody or visitation) she was prohibited from doing so. See also Fenstamaker v. Fenstamaker, 337 Pa.Super. 410, 487 A.2d 11 (1985) (no exceptions are required to be filed in the trial court to preserve issues arising out of a contempt order).

Having found that this appeal is properly before us, we now address the merit of appellant’s claim that the trial court lacked the authority to order her to visit her mother, undergo a psychological examination, and submit to family counseling.

A “child” is defined in this Commonwealth for domestic relations purposes, including custody proceedings, as “[a]ny unemancipated person under 18 years of age.” 23 Pa.C.S.A. § 5302 (Purdon Supp.1986). The trial court’s jurisdiction in these proceedings is limited to proceedings involving children. Fernald v. Fernald, 224 Pa.Super. 93, 302 A.2d 470 (1973). Though appellant functions at a moderate level of retardation, chronologically she was eighteen years old at the time the trial court issued its order. Thus, because she was not a child at that time, the trial court was without proper subject matter jurisdiction. While other remedies may be available to the mother, she cannot compel appellant to visit her through this type of action. Therefore, we reverse and set aside the trial court’s order. This decision is in accord with Schmidt v. Schmidt, 313 Pa.Super. 83, 459 A.2d 421 (1983) in which we held that an adult cannot be compelled by court order to visit a parent against his or her will. Schmidt also involved an adult daughter with reduced mental capacity. However, unlike the facts in the case before us, there was strong evidence in Schmidt that the parent seeking visitation was abusive and evoked intense feelings of fear and anger in the daughter.

The appellee’s motion to quash is denied. Order appealed from is reversed.

      . Because of our disposition of this appeal on the issue of subject matter jurisdiction, we do not reach the merits of appellant's other issues.

      . Newberg further states that while the Appellate Rules do not define “party,” the note following the appellate definitional rule, Pa.R.A.P. 102, refers to 42 Pa.C.S. § 102 which does define "party” as a "person who commences or against whom relief is sought in a matter____” 330 Pa.Super. at 68-69, 478 A.2d at 1354. In the instant case, since relief is sought from appellant, she is a "party” as defined by 42 Pa.C.S. § 102.

      . This holding is limited to individuals eighteen years old or older. We do not at this time decide what right, if any, extends to children to appeal.

      . In its opinion, the trial court emphasizes that its visitation order is temporary pending the outcome of the psychological examination and family counseling. Pursuant to the filing of this appeal, appellant petitioned this Court for an expedited stay pending appeal which we granted on February 18, 1986. Thus, no further action has been taken to make the trial court’s order permanent. Though neither party has raised this issue, that part of the order involving visitation at least is interlocutory. However, we find per the collateral order doctrine, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), that the entire order is appealable. See also Cady v.

        Weber, 317 Pa.Super. 481, 464 A.2d 423 (1983) (custody award held appealable even though court also ordered additional studies for further consideration).


text:
    523 A.2d 784
    COMMONWEALTH of Pennsylvania, Appellee, v. Thomas FOWLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 20, 1986.
    Filed April 2, 1987.

      Sandra F. Zavodnick, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

Thomas Fowler was tried by jury and was found guilty of attempted rape, attempted involuntary deviate sexual intercourse, robbery, theft by unlawful taking, simple assault and possession of an instrument of crime. Post-verdict motions were denied, and Fowler was sentenced to serve a term of imprisonment for not less than three and one-half years nor more than ten years. On direct appeal, he contends that the trial court erred by denying a request for a mistrial when, during the polling of the jury after a verdict had been returned, it was discovered that a juror had observed portions of a fictional television show pertaining to rape. Fowler also contends that trial counsel was ineffective because he refused to permit him to testify in his own behalf. We find no merit in these contentions and affirm the judgment of sentence.

The victim, according to the Commonwealth’s evidence, was accosted on a public street at 5:00 a.m. and was forced into an enclosed school yard where she was assaulted physically and sexually at knife point. When, after approximately two hours, the victim was able to seize the knife, her assailant took a plastic bag, in which the victim had been carrying personal items, and fled. The principal issue at trial was whether Fowler had been the assailant.

The jury began its deliberations at or about 2:00 p.m. on October 30, 1985. When, at 5:07 p.m., the jury had not reached a verdict, the trial court permitted the members of the jury to disperse with instructions that they should not discuss the case with anyone and to return on the following day. On October 31, 1985, the jury deliberated from 9:15 a.m. until 11:15 a.m., when a verdict of guilty was returned. The jury was polled, and all members indicated agreement with the announced verdict. Thereafter, but before the jurors had been discharged, defense counsel requested the trial court to poll the jurors regarding the possible influence of an episode of the television series entitled “Hotel” which, on the prior evening, had depicted the circumstances of a fictional rape. The trial judge initially denied the request, then relented, changed his mind and conducted an individual poll of the jurors. This revealed that one juror had seen the television show, and that he had seen only “the tail end of it.” When asked further if it had had an impact on his deliberations, he responded, “I don’t think so.” The trial court then directed that the verdict be recorded. However, defense counsel proceeded to cross-examine the juror without objection by the prosecuting attorney and without interruption by the court. Although the juror continued to say that he did not think the television production had affected his deliberations, he finally conceded, in response to a leading question posed by defense counsel, that he could not be certain. The juror was then taken into the judge’s chambers and, after being individually instructed in the presence of counsel, assured the court that he could follow the court’s instructions and reach a decision based solely on the evidence produced during trial. The court then directed the jury to retire once again and resume deliberations. At this point, defense counsel moved for a mistrial, which the court denied. Twenty-five minutes later, at 11:55 a.m., the jury sent a note to the trial judge to the effect that they could not “reach a verdict with total agreement.” The jurors were asked to continue deliberating. At 2:50 p.m., a note to the trial judge, signed by the foreman, again suggested an inability to reach a unanimous agreement. The trial court instructed the jury consistently with Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971), and asked the jury to continue its deliberations. At 3:55 p.m., a third note to the trial judge suggested that further deliberations would not break the impasse. The trial court thereafter excused the jurors for the day and permitted them to disperse until the following morning. A verdict of guilty on all charges was returned at 10:59 a.m. on November 1,1985.

The proceedings following the initial return of a verdict were ill-advised. This is patently clear. The ABA Standards pertaining to Trial by Jury, at § 5.7(a), direct that “[u]pon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror or concerning the mental processes by which the verdict was determined.” This is consistent with the well-settled principle of public policy in this Commonwealth that “post-trial affidavits and evidence of jurors elicited by the examination of counsel or by a litigant for the purpose of ... impeaching the verdict are improper, and such practice is to be discouraged.” 38 P.L.E. Trial § 397. See: Commonwealth v. Pierce, 453 Pa. 319, 309 A.2d 371 (1973). “Little will be gained and much lost by such inquiries.” Commonwealth v. Zlatovich, 440 Pa. 388, 396, 269 A.2d 469, 473 (1970).

It was improper for the trial court, following the polling of the jurors, to interrogate an individual juror regarding the mental processes by which he had reasoned and then permit the juror to be cross-examined by defense counsel. This error was compounded when the trial court thereafter directed the members of the jury to resume their deliberations. A valid, unanimous verdict had been returned by the jury, and there was no good reason for requiring the jurors to renew their deliberations after the verdict had been received and the jurors polled. Neither party had requested further deliberations. The Commonwealth had objected to the trial court’s refusal to accept the verdict, and the defense had moved for a mistrial. Nevertheless, after much further deliberation and three notes suggesting inability to agree, the jury returned a verdict identical to that initially returned.

If the intervening proceedings were redundant and ill-advised, appellant is, nevertheless, hard pressed to show harm. It was the defendant, not the Commonwealth, who improperly attempted to impeach the jury’s verdict by cross-examining one of the jurors concerning the possible effect of extra-evidentiary influences. Although the initial verdict was unanimous and should have been recorded, it was the defense which importuned the trial court to take further steps to insure the impartiality of the jury’s deliberations and the sanctity of its verdict. The trial court denied a defense motion for mistrial, a result which the defendant clearly was not entitled to receive, and when the trial court improvidently required the jury to deliberate further even after a proper verdict had once been returned, the subsequent deliberations resulted in a confirmation of the initial verdict. Thus, even if the additional deliberations were unnecessary and redundant, there was no harm to the defendant, for further deliberations did not alter the unanimous verdict which the jury had previously announced.

Following trial, present counsel was appointed to represent Fowler and filed post-trial motions. Included in these post-trial motions was an averment that trial counsel had been ineffective for failing to permit Fowler to testify in his own behalf at trial. An evidentiary hearing was held, and at this hearing testimony was received from both Fowler and his trial counsel. This evidence disclosed, and the court found as fact, that although counsel had recommended that Fowler should not testify, the final decision not to testify had been made by Fowler. The court found that counsel’s recommendation had been reasonable and that Fowler’s testimony, if he had testified, would have been “confused and less than credible.” Trial Court Opinion at p. 12. Therefore, the trial court concluded, no basis existed for finding that counsel had rendered constitutionally ineffective assistance. We agree.

The decision whether to testify in one’s own behalf is ultimately to be made by the accused after full consultation with counsel. Commonwealth v. Rawles, 501 Pa. 514, 523 n. 3, 462 A.2d 619, 624 n. 3 (1983); Commonwealth v. Wallace, 347 Pa.Super. 248, 254, 500 A.2d 816, 819 (1985); Commonwealth v. Mancini, 340 Pa.Super. 592, 607, 490 A.2d 1377, 1385 (1985). In order to support a claim that counsel was ineffective for not “putting” the appellant on the witness stand, the appellant must demonstrate either that (1) counsel interfered with his client’s freedom to testify, or (2) he gave specific advice so unreasonable as to vitiate a knowing and intelligent decision by the client not to testify in his own behalf. Cf. Commonwealth v. Martin, 346 Pa.Super. 129, 142, 499 A.2d 344, 351 (1985) (decision to testify was ultimately and solely the defendant’s, and strategic errors, without specific incidents of counsel impropriety, were insufficient to find trial counsel ineffective). In the instant case, the evidence failed to show that trial counsel had interfered with appellant’s freedom to testify or that counsel’s advice had been unreasonable. Therefore, appellant “must bear the burden of his decision not to testify and [he] cannot shift the blame to his attorney.” Commonwealth v. Mancini, supra 340 Pa.Super. at 610, 490 A.2d at 1385. See: Commonwealth v. Wallace, supra.

Appellant’s final contention is that the sentencing court erred when it denied his motion to reconsider the sentence without a hearing. He argues that he should have been given the opportunity to present evidence which, allegedly, was not available to the court at the sentencing hearing. This information included his home environment, his juvenile history and background, and his abuse of alcohol.

Appellant’s argument is not supported factually or legally. The record discloses that the sentencing court had the benefit of a pre-sentence report and a mental health evaluation. Moreover, appellant’s alcohol problem and his treatment therefor were specifically called to the attention of the sentencing court.

The law is clear that a sentencing court may deny a petition to modify sentence without a hearing and without stating reasons for its denial. Commonwealth v. Ziomek, 291 Pa.Super. 251, 435 A.2d 894 (1981). “A petition for modification of sentence is designed to give the sentencing court an opportunity, before appellate review is undertaken, to correct any errors it may have committed at sentencing____ A modification of sentence hearing, therefore, is only necessary if the sentencing record discloses error by the trial court. Should the modification petition fail to raise such errors, then the trial court is under no obligation to hold an obviously frivolous hearing or write an unnecessary opinion supporting its denial of the modification petition. It is within the trial court’s discretion to rely upon the sentencing record.” Id., 291 Pa.Superior Ct. at 254-255, 435 A.2d at 896.

The sentence imposed by the court in the instant case was within the range of sentences recommended by the sentencing guidelines, and appellant does not contend otherwise. Indeed, appellant is hard put to demonstrate any abuse of discretion; and our own review of the record discloses none. Because the record discloses neither defect in the sentencing process nor abuse of the sentencing court’s discretion, it was not error to deny appellant’s modification petition without hearing.

The judgment of sentence is affirmed.


text:
    523 A.2d 788
    Marjorie SMITH, Appellee, v. David ADAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1986.
    Filed April 2, 1987.

      Michael J. Donohue, Scranton, for appellant.

      Robert G. Dean, Montrose, for appellee.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   WIEAND, Judge:

The issue of first impression in this appeal is whether the owner of the fee underlying a township road can maintain an action in ejectment against a cable t.v. company which, with township consent, has placed three utility poles within the public right of way. The trial court held that an action in ejectment could be maintained by the landowner and ordered the removal of the poles from the public right of way. We reverse.

The case was submitted to the trial court on an agreed statement of facts. Marjorie Smith is the owner of a seventy-eight (78) acre tract of land in Clifford Township, Susquehanna County. The tract is bisected by Township Road 387. David Adams, doing business as Adams Cable T.Y., installed three cable poles, with connecting cable lines, along and within the thirty-three feet wide right of way where the township road abuts Smith’s land. The placement of these poles was authorized by agreement between Adams and Clifford Township. The trial court was asked to decide whether Smith, “as an abutting landowner along a township road, has a legal right to object to the placement of cable t.v. poles and line within the township road right of way, or whether the placement of such poles and line has been conferred [upon] the township ... by virtue of the right of way, held for public passage.”

The law in Pennsylvania is that a public street or road may be used for any public service without additional or further compensation becoming due an abutting landowner. Pittsburgh National Bank v. Equitable Gas Co., 421 Pa. 468, 220 A.2d 12 (1966). It is the municipal government which has the power and the authority to grant permission for the use of public roads and streets within its boundaries. See: Borough of Scottdale v. National Cable Television Corp., 476 Pa. 47, 51, 381 A.2d 859, 861 (1977). When a public road is established, it is contemplated that it will be available for public travel and commerce. Pittsburgh National Bank v. Equitable Gas Co., supra, 421 Pa. at 474, 220 A.2d at 16. “As the means and modes of public commerce increase, what at one time would have been considered a burden on the abutting landowner is no longer so____ Evolutionary changes must be considered in determining whether a burden is imposed on the servient tenement.” Id., 421 Pa. at 474-475, 220 A.2d at 16.

The power of municipal governments to control public roads and streets has been confirmed in second class townships by statute. Section 1156 of the Second Class Township Code, as amended, 53 P.S. § 66156 (Supp.1986), provides as follows:

No railroad or street railway shall hereafter be constructed upon any township road, nor shall any railroad or street railway crossings, nor any gas pipe, water pipe, electric conduits, or other piping, be laid upon or in, nor shall any telephone, telegraph, or electric light or power poles, or any coal tipples or any other obstructions be erected upon or in, any portion of a township road except under such conditions, restrictions and regulations relating to the installation and maintenance thereof, as may be prescribed in permits granted by the township for such purpose____

Cable communications have become a part of the public commercial scene. They are a vital part of the communications system by which Americans in one part of the country keep in touch with people in other parts of the nation. The Congress of the United States has established a national policy pertaining to cable communications and has established guidelines for the exercise of local authority with respect to the regulation of cable systems. See: 47 U.S.C. § 521 et seq. Pursuant thereto, the operator or franchisee of an authorized cable system is guaranteed the right to construct its system over public rights of way. See: 47 U.S.C. § 541.

An abutting landowner, even though he or she may own the fee underlying the public right of way, does not have the power to veto uses of the public road which have been duly authorized by public authority. Pittsburgh National Bank v. Equitable Gas Co., supra; 46 South 52nd Street Corp. v. Manlin, 398 Pa. 304, 157 A.2d 381 (1960). Accordingly, the plaintiff in the instant case, who is the abutting landowner, cannot compel the removal of poles which have been placed within the public right of way, with the permission of the township, as part of a cable communications system.

Judgment reversed and now entered in favor of appellant.


text:
    523 A.2d 790
    FARMERS TRUST COMPANY, Appellant, v. Ralph H. BOMBERGER and Kathryn M. Bomberger, his wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1986.
    Filed April 2, 1987.

      Thomas P. Harlan, Lebanon, for appellant.
    Samuel G. Weiss, Jr., Lebanon, for appellees.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   WIEAND, Judge:

This appeal requires that we determine the priority of the liens of two purchase money mortgages, one of which is held by the seller of the mortgaged property and the other by a lending institution which advanced money to the mortgagor to enable the mortgagor to purchase the mortgaged property.

By agreement dated May 29, 1981, Leroy Schucker agreed to sell and Ralph and Kathryn Bomberger agreed to buy the Halfway Tavern in Lebanon County for a consideration of One Hundred Twenty-Five Thousand ($125,000.00) Dollars. The agreement was subsequently amended to provide that the sellers would borrow Eighty-Five Thousand ($85,000.00) Dollars from Farmers Trust Company, to be secured by mortgage constituting a first lien on the premises. The seller agreed to provide the remaining Forty Thousand ($40,000.00) Dollars, which, by the express terms of the agreement, was to be secured by a mortgage whose lien would be “a second mortgage on the premises after the first mortgage of the Farmers Trust Company.” In reliance on this supplemental agreement, the bank agreed to lend the purchasers the sum of Eighty-Five Thousand ($85,-000.00) Dollars. The transaction was closed on June 24, 1981. The deed was recorded at 2:10 p.m.; the mortgage to the bank was recorded at 2:11 p.m.; and the seller’s mortgage was recorded at 2:12 p.m. As a result of a mutual mistake, however, the bank’s mortgage did not contain language expressly providing that it was a purchase money mortgage; and the mortgage held by the seller did not contain language that it was intended to be subordinate to the mortgage held by the bank.

The purchasers defaulted and, on June 7, 1983, the bank instituted foreclosure proceedings. When the purchasers went into bankruptcy, however, the foreclosure proceedings were stayed. On March 21, 1984, the stay order was vacated, and the premises were thereafter scheduled for sale by the sheriff. Shortly before the sale, Schucker, the seller, notified the sheriff that he held a first lien on the tavern and expected to be paid first from the proceeds of the sale. At the sheriff’s sale, the bank purchased the tavern property for a high bid of Forty-Four Thousand ($44,000.00) Dollars. The sheriff filed a schedule of distribution in which he proposed to pay the Schucker mortgage in full before distributing any part of the proceeds to Farmers Trust Company. The bank filed exceptions to the sheriffs schedule of distribution in which it alleged the foregoing facts and to which were attached copies of the relevant documents. The seller did not deny the facts. Instead, he filed a motion for summary judgment in which he conceded the correctness of the facts recited by the bank. His motion for judgment did not allege estoppel as a basis for the entry of judgment in his favor; it relied solely on the state of the record at the time of the sale. The motion was argued before the Honorable John Walter, who denied the same. Thereafter, the bank filed a separate motion for summary judgment which came before the Honorable Robert J. Eby for decision. Judge Eby denied the bank’s motion and, instead, entered an order granting summary judgment in favor of Schucker, the seller. The basis for this decision was the trial court’s determination that the bank should be estopped to assert a mistake in the preparation of the mortgage documents because it had waited too long to correct the same. Farmer’s Trust Company appealed. We reverse.

Where exceptions to the distribution of the proceeds of a foreclosure sale are filed, a court will hear and determine them according to law and equity. 22 Std.Pa. Prac.2d § 121:120. See: Donnan v. Barnes, 272 Pa. 33, 115 A. 883 (1922). The priority of liens as they appear on record is prima facie evidence of the manner in which the proceeds are to be distributed. 22 Std.Pa.Prac.2d § 121:120. See: Gosser v. Yohn, 67 Pa.Super. 521 (1917). However, if the exceptant can produce evidence that he is equitably entitled to priority, the order of payment of the proceeds of a foreclosure sale will be changed. 22 Std.Pa. Prac.2d § 121:120. See: Gosser v. Yohn, supra.

Priority for the liens of purchase money mortgages is provided by statute at 42 Pa.C.S. § 8141(1) as follows:

Liens against real property shall have priority over each other on the following basis:
(1) Purchase money mortgages, from the time they are delivered to the mortgagee, if they are recorded within ten days after their date; otherwise, from the time they are left for record. A mortgage is a “purchase money mortgage” to the extent that it is:
(i) taken by the seller of the mortgaged property to secure the payment of all or part of the purchase price; or
(ii) taken by a mortgagee other than the seller to secure the repayment of money actually advanced by such person to or on behalf of the mortgagor at the time the mortgagor acquires title to the property and used by the mortgagor at that time to pay all or part of the purchase price, except that a mortgage other than to the seller of the property shall not be a purchase money mortgage within the meaning of this section unless expressly stated so to be. (emphasis added)

The recorded mortgages in this case suggest by their terms that the seller’s mortgage was a purchase money mortgage, while the bank’s mortgage, because it did not recite that it was intended to be a purchase money mortgage, was not. Although the recorded mortgage documents alone were sufficient under the statute to raise an inference of lien priority in favor of the seller, that inference could be rebutted by evidence that the parties intended a different result.

The priority which a mortgage lien would otherwise have may be altered by agreement of the parties. 24 P.L.E. Mortgages § 106. See: Thomas v. Equitable Building & Loan Association, 215 Pa. 259, 64 A. 531 (1906); Wheatcroft v. Auritt, 226 Pa.Super. 118, 312 A.2d 441 (1973). See also: Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 282 A.2d 335 (1971). In determining the rights of parties to a dispute involving the distribution of proceeds from a foreclosure sale, therefore, consideration must be given not only to the recorded documents, but also to any agreement by the parties which affects lien priorities between them. See: Sidle v. Kaufman, 345 Pa. 549, 557, 29 A.2d 77, 82 (1942). See also: Knoell v. Carey, 285 Pa. 498, 500, 132 A. 702 (1926).

In the instant case, there was no dispute that the parties had entered into a pre-sale agreement whereby the bank was to advance slightly more than two-thirds of the purchase price and was to be secured by a first mortgage; and the seller was to provide slightly less than one-third of the purchase price and was to be secured by a second mortgage. Notwithstanding the lien priorities which would have been established by statute when applied to the recorded mortgages, the expressed intent of the parties, as evidenced by the supplemental agreement of sale, was to subordinate the seller’s mortgage to that of the bank. Because the intention of the parties is clear, their agreement is controlling. The bank’s mortgage must be given priority over the mortgage held by the seller. Having reached this conclusion, we direct our consideration to whether the bank should be equitably estopped from asserting the agreement which provided for the priority of its lien.

“Equitable estoppel is a doctrine that prevents one from doing an act differently than the manner in which another was induced by word or deed to expect.” Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 435, 457 A.2d 502, 503 (1983). It “applies to prevent a party from assuming a position or asserting a right to another’s disadvantage inconsistent with a position previously taken.” Blofsen v. Cutaiar, 460 Pa. 411, 417, 333 A.2d 841, 843 (1975). “[T]he person inducing the belief in the existence of a certain state of facts is estopped to deny that the state of facts does in truth exist, over a different or contrary state of facts as existing at the same time, or deny or repudiate his acts, conduct or statements.” Novelty Knitting Mills, Inc. v. Siskind, supra 500 Pa. at 436, 457 A.2d at 504, quoting Blofsen v. Cutaiar, supra 460 Pa. at 417, 333 A.2d at 844. See also: Northwestern National Bank v. Common wealth, 345 Pa. 192, 197, 27 A.2d 20, 23 (1942). “An estoppel requires the presence of two essential elements. The first is an inducement to act. The second is a justifiable reliance on that inducement.” Havas v. Temple University, 357 Pa.Super. 353, 356, 516 A.2d 17, 18 (1986), citing Novelty Knitting Mills, Inc. v. Siskind, supra 500 Pa. at 436, 457 A.2d at 503. The burden rests upon the party asserting estoppel to establish the elements thereof by evidence which is clear, precise, and unequivocal. Novelty Knitting Mills, Inc. v. Siskind, supra, 500 Pa. at 436, 457 A.2d at 504; Blofsen v. Cutaiar, supra, 460 Pa. at 417, 333 A.2d at 844.

In the instant case there was no evidence to support a finding of estoppel against the bank. There was no evidence of an inducement by the bank and no evidence that the seller had acted in justifiable reliance on a belief that the lien of his mortgage was to be superior to the lien of the bank’s mortgage. In deciding summarily the issue of lien priority, the trial court concluded that the bank was es-topped because it had delayed in discovering the mistake in the terms of its mortgage and in moving promptly to correct the mistake. This was error.

As a general rule, mere silence or inaction is not a ground for estoppel unless there is a duty to speak or act. See: Brown v. Haight, 435 Pa. 12, 19, 255 A.2d 508, 512 (1969). See: 14 P.L.E. Estoppel § 52. There is no estoppel where both parties are equally aware of the facts and where the failure to speak or act by one party does not mislead the other. In such cases there is no duty to speak or act. See: 14 P.L.E. Estoppel § 47; Richards v. Buffalo Etc. R. Co., 137 Pa. 524, 19 A. 931 (1890).

Here, the record does not show that the bank did anything to mislead the seller with respect to the lien priorities of the two mortgages. The seller was a party to a supplemental contract by which he had agreed that the lien of his mortgage would be subordinated to the lien of the bank’s mortgage. If any party was misled to its prejudice by the mistake in drafting the mortgage documents, it was the bank and not Schucker.

The record before this Court consists of averments of fact contained in the bank’s exceptions to the sheriff’s schedule of distribution. The correctness of those facts has been conceded by the seller. One of the facts alleged and not disputed is that the mortgage documents failed to contain the language necessary to preserve the priority of the bank’s lien because of mistake. It has also been conceded that the intent of the parties was correctly stated in the supplemental agreement of sale by which the seller agreed that the lien of his mortgage was to be second to the lien of the mortgage held by the bank which had advanced the major portion of the purchase price. Under these circumstances, the result is clear. The bank is entitled to be paid first from the proceeds realized at the sheriff’s sale. The seller will not be permitted to take advantage of a mistake in drafting the mortgage documents to gain for himself an unintended windfall.

Reversed and remanded for distribution consistent with the foregoing opinion. Jurisdiction is not retained.

      . Appellant informs us that the estoppel issue was raised for the first time during oral argument on the bank's motion for summary judgment.


text:
    523 A.2d 794
    David BOOKS and Carolyn Books, his wife v. PENNSYLVANIA POWER & LIGHT COMPANY and Agway, Inc. v. MACK TRUCKS, INC., Trailer Company of Lancaster and Hill Manufacturing Company. Appeal of PENNSYLVANIA POWER & LIGHT COMPANY.
    Superior Court of Pennsylvania.
    Submitted Nov. 10, 1986.
    Filed March 31, 1987.

      Charles E. Wasilefski, Harrisburg, for appellant.
    Leslie M. Fields, York, for Books, appellees.
    William F. Martson, Carlisle, for Agway, appellee.
    William A. Addams, Carlisle, for Mack Truck Inc., appellee.
    Susan E. Grosh, Lancaster, for Trailer Co., appellee.
    Robert J. Brown, York, for Hill Mfg., appellee.
    Before ROWLEY, WATKINS and ROBERTS, JJ.
   OPINION OP THE COURT

ROWLEY, Judge:

In this appeal from the entry of a summary judgment in favor of Mack Trucks, Inc. and Hill Manufacturing Company, appellees, Pennsylvania Power & Light Company (PPL), the appellant, presents a single issue for review: whether adequate warnings on a Mack tractor and a Hill dump trailer might have caused plaintiff to act differently at the time of his injury. In order to resolve that issue it is necessary to ascertain whether the record shows that plaintiff fully appreciated the risk of operating the tractor and dump trailer in the vicinity of overhead power lines without coming into actual contact with the lines. After having carefully considered the parties’ arguments, we find merit in PPL’s contention and vacate the summary judgment.

David Books (plaintiff) and his wife filed a complaint in trespass against PPL and Agway alleging that plaintiff was electrocuted when the dump trailer he was unloading at Agway “came into contact or was caused to be electrified by the overhanging power lines owned, operated and controlled by [PPL].” R.R. 4a. No one saw the trailer hit the power lines and the record is not clear whether the accident resulted from the equipment coming in contact with the lines or whether the electrical current arced across a space between the lines and the nearby trailer. Plaintiff maintains that PPL negligently placed its power lines near a dumping site and that Agway was negligent in directing that materials be dumped near the lines.

PPL joined Mack and Hill as additional defendants and filed a complaint against them on grounds of negligence, strict liability under the Restatement (Second) of Torts § 402A, and the breach of express and/or implied warranties. The dump trailer that plaintiff was operating was manufactured by Hill and was pulled by a tractor manufactured by Mack. In its complaint, PPL alleged that Mack and Hill failed to affix a warning on their products of the danger of raising the dump trailer “in the vicinity of overhead electrical transmission lines.” R.R. 20a.

After the pleadings were closed, PPL, Mack and Hill filed motions for summary judgment. They relied on the deposition testimony of plaintiff and a co-worker. Neither Mack nor Hill were represented at the deposition, presumably because it was taken prior to the filing of the complaint joining them in the action. In order to fully understand the bases of the motions, it is necessary to first set forth the facts, as viewed under the appropriate standard. The record must be examined in a light most favorable to the nonmoving party and all doubts must be resolved against the moving party. See Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 515 A.2d 980 (1986). Plaintiff was directed by his employer to take a load of lime to Agway and dump it there. A second truck, also bearing lime for Agway, followed plaintiff. That truck was driven by plaintiffs co-worker, Wayne Espenshade, Jr. When they arrived at Agway, they were told to dump the lime in an area where overhead power lines were located. Plaintiff stated that he was aware of the power lines. When asked if there was any discussion about the lines, he responded, “I said, we would watch the lines, we didn’t want to hit the lines.” R.R. 90a. The decision was made to dump Espenshade’s load first. Plaintiff testified as follows:

Q When you got out of your trucks, then, you saw that the lime was at the end of the building?
A Yes, sir.
Q At that point, did you look at the wires overhead?
A Not particularly.
Q Did you have any discussion about the wires?
A Other than we knew they were there and we didn’t want to hit them.
* * * # sft *
Q Did you look overhead while you were in that open spot?
A Yes, I did, and I seen that there was enough room to dump if we watched the lines, where we stayed behind them.
# * * sjc >je ik
Q When you judged that you had room to dump, you took into consideration the location of those power lines, did you not?
A Yes, sir.
Q It was based upon what you observed, it was your decision to go ahead and make that dump, despite the fact that it may be a little bit difficult because of the power lines overhead, isn’t that true?
A I wouldn’t really say difficult. If you watch what you are doing and use common sense, there’s not a whole lot of things that are really difficult.

R.R. 94a-95a, 105a-106a.

To raise the dump trailer, the driver had to operate the clutch inside the cab and two levers located on the outside of the cab on the driver’s side. R.R. 146a, 151a & 155a. While Espenshade remained in the cab and operated the clutch and the levers to raise the trailer, plaintiff stood near the truck and watched the lime pouring out of the rear of the trailer. R.R. 144a. After a portion of the load was dumped, Espenshade lowered the trailer and pulled the truck forward, closer to the power lines, in order to dump more lime. R.R. 107a-108a & 145a. This placed the cab of the tractor under the lines and the trailer behind them. Id. at 109a. Plaintiff watched so that the trailer remained behind the lines as Espenshade pulled forward. For the second dump, plaintiff operated the levers while Espenshade remained in the cab and operated the clutch. Plaintiff also watched the “bed going up, so we wouldn’t tip it over, and the lines, and stuff.” Id. at 92a.

Q Do you remember at that point when you had your hands on the levers, whether or not you saw the power lines overhead?
A We were behind the power lines.
Q How had you determined that?
A I could see between the trailer and the power lines.
* * ii« * * it
Q At some point you took your eyes off the lines and observed to see if the limestone was coming out the back, is that true?
A Yes, sir, when I knew we were clear of them.
Q When you say clear of them, what does that mean to you?
A Behind them, we weren’t going to touch them.
Q Was the trailer or part of the bed above the lines when you made that determination?
A I couldn’t really say whether it was above the lines or what, but you could see we were behind them — you could see the lines and the trailer, and there was a space between them.
Q You made a determination that you were not going to contact the line, is that correct?
A Yes, sir.
sfc * * sis * If.
Q When this accident occurred and the wires struck the bed, you do not know if that bed was still raising, do you?
A I don’t know, no. The only thing I do know is that we were behind it.
Q When you say behind it, it was your estimation that you would clear the wires as it raised up, is that correct?
A Yes, sir.

R.R. 93a, 113a-114a & 117a. Plaintiff was electrocuted as the dump trailer was being raised and while he had his hands on the levers which raised the trailer.

In its motion for summary judgment, Mack alleged that plaintiff’s theory of how the accident occurred was that he raised the dump trailer which came in contact with the power lines. Mack contended that plaintiff’s deposition testimony revealed that he was aware of the danger in operating the equipment near the power lines and thought he could avoid contact between the lines and the dump trailer. Mack’s argument is that because the danger involved in the trailer coming into contact with the power lines was obvious to plaintiff, no warning was required; therefore, Mack submits that the failure to warn was not a substantial factor in causing plaintiff’s injuries.

In its motion for summary judgment, Hill also limited plaintiff’s theory to contact between the lines and the trailer. Hill, however, argued not only that the failure to warn was not a substantial factor in causing plaintiff’s injuries, but that plaintiff assumed the risk of injury by operating the dump trailer despite his knowledge of the danger associated with contact between the equipment and the power lines.

Contrary to the position taken by appellees in their motions for summary judgment, PPL (appellant) claimed that plaintiff assumed the risk of injury by operating the dump trailer in the vicinity o/the power lines. The trial court denied PPL’s motion, but granted the motions of Mack and Hill. Although PPL could not and did not appeal from the order denying its motion, we find it helpful to set forth the trial court’s reasons for denying PPL’s motion since they shed light on the court’s reasons for granting Mack and Hill’s motions for summary judgment, which are the subject of the present appeal by PPL.

After reviewing plaintiff’s deposition testimony, the trial court concluded that plaintiff was aware of the power lines and that he had made an effort to avoid contact between the dump trailer and the power lines. The court refused to enter summary judgment in favor of PPL, however, because the court found that issues of material fact remained as to whether plaintiff assumed the risk that electrocution could have occurred from the wind blowing the power lines into contact with the dump trailer or the risk that electric current might jump or arc from the power lines to the nearby dump trailer as it approached the lines. Thus, the court concluded that although plaintiff assumed the risk of danger associated with the dump trailer coming in contact with the power lines, the court refused to find that plaintiff assumed the risk of operating the dump trailer near the power lines.

The trial court granted Mack and Hill’s motions for summary judgment, however, finding that a warning on the truck and dump trailer would not have caused plaintiff to act differently. The trial court emphasized that Mack and Hill’s motions for summary judgment were based on an assumption of risk defense with regard to a failure to warn. The court noted that a warning “could have stated no more than [plaintiff] already knew: don’t raise the trailer where it might touch electrical wires.” Trial court’s op. at 6. The trial court distinguished the assumption of the risk defense asserted by Mack and Hill from that advanced by PPL by noting that Mack and Hill’s defense was limited to danger resulting from the failure to warn only, whereas PPL’s defense required the court to find that plaintiff generally accepted all danger associated in working near the power lines which was not clear from the record.

On appeal, PPL argues that two issues of material fact bar the entry of summary judgment: 1) whether a warning would have caused plaintiff to act differently, and 2) whether plaintiff fully appreciated the risk of electrocution from operating the vehicle near the power lines. We agree.

Summary judgment may be entered only if there is no issue of material fact to be tried. Washington Federal Savings and Loan Association v. Stein, supra. “A summary judgment should only be entered in those cases which are clear and free from doubt.” Roland v. Kravco, Inc., 355 Pa.Super. 493, 499, 513 A.2d 1029, 1033 (1986) (citation omitted).

A review of Mack and Hill’s motions for summary judgment reveals that the trial court incorrectly characterized the motions as limited to the defense that plaintiff assumed the risk of injury. In its motion, Mack alleged only that its failure to warn was not a legal cause of plaintiff’s injury; it did not raise assumption of the risk. Hill similarly challenged the causation element, although Hill also raised an assumption of the risk defense. Under either theory, we conclude, based on the record before us, that Mack and Hill failed to establish that their right to summary judgment was clear and free from doubt.

In Pennsylvania, a properly designed

product may be in an unreasonably dangerous defective condition if its manufacturer fails to warn the user or consumer of latent dangers in the use or operation of the product. See, e.g., Sherk v. Daisy-Heddon, A Division of Victor Comptometer Corporation, 498 Pa. 594, 450 A.2d 615 (1982). Before strict liability will be imposed on a manufacturer for failure to warn adequately of latent dangers in the use of a product, however, the plaintiff must establish that the failure to warn adequately of such dangers was the cause-in-fact and proximate cause of his or her injuries____ Where the theory of liability is failure to warn adequately, the evidence must be such as to support a reasonable inference, rather than a guess, that the existence of an adequate warning may have prevented the accident before the issue of causation may be submitted to the jury.

Conti v. Ford Motor Co., 743 F.2d 195, 197-198 (3rd Cir. 1984) (citation omitted).

From the inception of the case, plaintiff advanced alternate theories of how the accident occurred: either the equipment came into contact with the power lines, or the equipment was somehow electrified by the lines. PPL advanced the same alternate theories when, in its complaint joining Mack and Hill to the action, it alleged the Mack and Hill should have placed warnings on their products of the danger of operating the equipment in the vicinity of power lines. The trial court recognized the importance of the alternate theories when it agreed that plaintiff assumed the risk of contact, but denied PPL’s motion for summary judgment because the accident could have occurred when electrical current arced from the power lines to the equipment. This theory would not require the equipment to come in contact with the power lines. However, the trial court disregarded this possibility when it found that a warning would have been limited to the danger of contact with the power lines. The trial court was unduly restrictive when it created such a warning since PPL alleged that the warning should have been broader and included the danger of working near the power lines.

There is evidence in the record before us from which a jury could find that plaintiff raised the dump trailer near power lines. Whether the electrical charge that injured plaintiff was the result of the trailer coming into contact with the power lines or was the result of the phenomenon known as arcing is a material fact that is yet to be determined. The trial court recognized this when in its opinion, it noted that, “electricity may have somehow ‘arced’ from the power lines to the truck bed as the dumping trailer approached the lines.” Trial court’s op. at 4. Although plaintiff testified that he was aware of the danger from contact between the trailer and the power lines, there is no evidence in the record to suggest that he was aware of the danger in allowing the trailer to be operated near the power lines. Because there is no evidence to suggest that plaintiff was aware of the danger of operating the dump trailer near the power lines, a genuine issue of material fact exists as to whether the type of warning suggested by PPL would have caused plaintiff to act differently. Since all doubts must be resolved against Mack and Hill, their right to summary judgment is not clear and free from doubt. Accordingly, the trial court erred in entering summary judgment in favor of Mack and Hill.

Summary judgment entered in favor of Mack Trucks, Inc. and Hill Manufacturing Company is vacated. The case is remanded to the trial court for further proceedings. Jurisdiction is relinquished.

      . Plaintiffs have not participated in the appeal.

      . PPL also joined Trailer Company of Lancaster. The trial court granted the Trailer Company’s motion for summary judgment which is not contested in the present appeal.

      . By finding that a warning would merely have informed plaintiff of a danger he was already aware of, the trial court determined that the warning would not have caused plaintiff to act differently and, accordingly, the failure to warn was not the legal cause of plaintiff’s injuries. See Conti v. Ford Motor Co., supra. Since we have concluded that there is no record evidence that plaintiff was aware of the danger of raising the dump trailer near the power lines, such a finding would be erroneous at this juncture.

      . The electrical phenomenon known as arcing is dependent on a number of variables including relative humidity, atmospheric pressure, insulation of the wires, and the shape of the portion of the trailer closest to the power lines, all of which are subject to proof at trial.


author: TAMILIA, Judge:

text:
    523 A.2d 799
    COMMONWEALTH of Pennsylvania v. Norman P. CRUM, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1987.
    Filed March 31, 1987.

      Charles B. Swigart, Huntingdon, for appellant.
    Stewart L. Kurtz, District Attorney, Huntingdon, for Com., appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence entered following a jury trial wherein appellant was convicted of driving under the influence. Appellant, a first time offender, was sentenced to five (5) days to twenty three (23) months imprisonment.

On May 2,1985, at approximately 2:25 a.m., State Trooper Richard Kuny observed appellant’s vehicle parked along the berm of Pa. Route 26 in Huntingdon County. (N.T., 11/4/85, pp. 10, 11). Trooper Kuny found appellant slumped across the front seat of the car, with the motor running and the lights on. (N.T., 11/4/85, p. 11). Trooper Kuny eventually roused appellant from a deep sleep, and based upon observations of appellant's demeanor, placed him under arrest. (N.T., 11/4/85, p. 13). A subsequent intoxilizer test performed at the Pennsylvania State Police barracks revealed appellant had a blood/alcohol content of 0.19%. (N.T. 11/14/85, p. 13).

Appellant now argues that even if the evidence presented by the Commonwealth was legally sufficient to prove that he was, at the time he was observed by Trooper Kuny, under the influence of alcohol to a degree which rendered him incapable of safe driving, there was not sufficient evidence to prove that he either drove, operated, or was in actual physical control of the movement of a vehicle.

The test for reviewing a sufficiency of the evidence claim on appeal from a criminal conviction is well settled:

[W]hether, viewing the evidence in the light most favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence ... Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered ... Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. (Citations omitted).

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986), citing Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979).

Driving Under the Influence of Alcohol or Controlled Substance, 75 Pa.C.S.A. § 3731 (a)(1) provides:

(a) offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;

As it is not disputed that appellant was under the influence of alcohol, our inquiry must focus upon whether appellant drove, operated or was in actual physical control of the movement of his vehicle. The history of 75 Pa.C.S.A. § 3731 is instructive in this regard.

Section 1037 of the Vehicle Code, Act of April 29, 1959, P.L. 58, formerly 75 P.S. § 1037 provided that “[i]t shall be unlawful for any person to operate a motor vehicle ... while under the influence of intoxicating liquor ...” (emphasis added). In Commonwealth v. Kallus, 212 Pa.Super. 504, 243 A.2d 483 (1968), this Court interpreted the word “operate”, as used in the statute, as follows: “it is not necessary that the vehicle itself must be in motion but that it is sufficient if the operator is in actual physical control of either the machinery of the motor vehicle or of the management of the movement of the vehicle itself.” Id., 212 Pa.Superior Ct. at 507, 243 A.2d at 485. In Kallus, the defendant, who was found seated in the driver’s seat of the car behind the steering wheel, with the engine running, car in gear, the rear wheels spinning, and the left wheel spinning against the main portion of the highway, was determined to have operated the vehicle for purposes of section 1037.

In 1976, 75 P.S. § 1037 was repealed by 75 Pa.C.S.A. § 3731, as enacted by the Act of June 17, 1976, P.L. 162, § 1. This statute provides, in relevant part, that, “[a] person shall not drive any vehicle while ... under the influence of alcohol____” (emphasis added). In Commonwealth v. Brown, 268 Pa.Super. 206, 407 A.2d 1318 (1979), this Court concluded that since the term “operate” is a broader term than “drive”, the legislature intended to limit the scope of the statute when it substituted the term “drive” for the term “operate”. Thus we found that “[i]n order to prove that a defendant charged with a violation of § 3731 ‘drove’ a motor vehicle, evidence must be adduced showing that the vehicle was (at the time in question), in fact, in motion.” Id., 268 Pa.Superior Ct. at 211, 407 A.2d at 1320.

This holding was further delineated in Commonwealth v. Matsinger, 288 Pa.Super. 271, 431 A.2d 1043 (1981), wherein the court found that Brown does not require direct evidence of motion, but rather, circumstantial evidence may be sufficient. In applying this standard, the court held that evidence that the defendant was found asleep behind the wheel of his vehicle with the motor running and the car in gear was sufficient to support an inference that the vehicle had been in motion and that appellant had been in control.

In 1982, 75 Pa.C.S.A. § 3731 was amended to the version of the statute we now have before us. 75 Pa.C.S.A. § 3731 (a), as amended by the Act of December 15, 1982, P.L. 1268, § 9 provides that, “[a] person shall not drive, operate, or be in actual physical control of the movement of any vehicle while ... under the influence of alcohol____” Upon review of this version of the statute, it is clear that the legislature intended to expressly broaden the scope of section 3731. The Commonwealth Court, upon passing on the meaning of the phrase “actual physical control of the movement of a motor vehicle”, considered this history of 75 Pa.C.S.A. § 3731.

In accordance with the statutory construction principles that effect should be given to all of the words of the law, 1 Pa.C.S. § 1921(a), 1922(2), and that earlier judicial interpretations of terms should be heeded when the legislature includes those terms in a subsequent statute, 1 Pa.C.S. § 1922(4), this court must conclude that the concept “actual physical control” in the present chemical test section conveys the same meaning as that which the Superior Court had accorded to the concepts of operating and having physical control — as involving control of the movements of either the machinery of the motor vehicle or of the management of the vehicle itself, without a requirement that the entire vehicle be in motion.

Commonwealth v. Farner, 90 Pa.Commw. 201, 205, 494 A.2d 513, 515-516 (1985).

Additionally, the concept of “actual physical control” has recently been embodied in the Pennsylvania Suggested Standard jury instructions for driving under the influence of alcohol.

[(2) The crime of driving under the influence can be committed not only by a person who drives but also by one who “operates” or is “in actual physical control of the movement” of a vehicle. A person does not drive unless he actually has the vehicle in motion, however, a person may operate or be in actual physical control of the movement of a standing vehicle. These terms are more comprehensive than the term drive. (They cover certain situations where a person under the influence is a threat to public safety even though he is not driving at the time.) Thus a person operates a vehicle if he is in actual physical control of either the machinery of the motor vehicle or the movement of the vehicle itself.]

Pa.SSJI (Crim.) 173731.

We find that since the jury could have reasonably found appellant to be in violation of the earlier versions of the statute, there is no doubt appellant can be convicted under the present statute. The amended version of 75 Pa.C.S.A. § 3731 is much broader than the version applied in Matsinger. The facts of the instant action are sufficient to support an inference that appellant was in control of either the machinery of the motor vehicle or the management of the motor vehicle itself, despite the fact that appellant’s vehicle was not observed in motion.

Appellant next argues that the presumption of being under the influence, arising from a blood/alcohol test result of 0.10 per cent or greater, has been eliminated by the 1982 amendments to the vehicle code. Thus, appellant contends it was error for the court below to instruct the jury that a test result of 0.10 per cent or more required them to find that he was under the influence, when he was only charged with section 3731(a)(1) and not section 3731(a)(4).

The lower court, in its charge to the jury, stated, inter alia:

Any person who has alcohol by weight in their blood of .10 or more, under those circumstances, the test result requires you to find that the defendant was under the influence of alcohol. What this means is that the test result, if accepted by you as accurate and reliable, is conclusive evidence that the defendant was under the influence of alcohol and requires you to so find. (Emphasis added).

(N.T. 11/5/85, p. 46).

The court below maintains that its comments to the jury “did not amount to a presumption, but rather a permissible inference that defendant was under the influence.” (Slip Op., Taylor, J., 9/5/86, p. 8).

Under 75 Pa.C.S.A. § 1547(d)(3), Presumptions From Amount of Alcohol, if chemical testing of a person’s breath, blood or urine shows:

(3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, this fact may be introduced into evidence if the person is charged with violating section 3731. (Emphasis added).

Pursuant to the pre-1982 version of 75 Pa.C.S.A. § 1547(d)(3), if chemical analysis of a person’s breath or blood shows:

(3) that the amount of alcohol by weight in the blood of the person tested is 0.10% or more, it shall be presumed that the defendant was under the influence of alcohol. (Emphasis added).

Thus appellant’s argument centers on how the court should instruct the jury regarding the significance of the blood alcohol level when the defendant is charged under section 3731(a)(1) and there is evidence of a blood alcohol level of 0.10 per cent or more.

Although the pre-1982 versions of 1547(d)(3) spoke in terms of “presumptions”, the Pennsylvania Supreme Court, in Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204 (1974), held that what is described in the vehicle code as a “presumption” is “really no more than an inference which the jury may accept or reject in light of all of the evidence in the case.” Id., 458 Pa. at 199, 329 A.2d at 211. The court further elaborated on the non-compulsory nature of the inference and the charge to the jury as follows:

The jury should be instructed that the test results are evidence that the defendant was under the influence of intoxicating liquor, and permit a finding to that effect, but that such a finding is not mandatory; that the test results should be considered together with all the other evidence in the case; and that if there is a reasonable doubt in the minds of the jurors as to whether the defendant was under the influence of intoxicating liquor, they should return a verdict of “not guilty.”

Id., 458 Pa. at 200, 329 A.2d at 211.

The amended version of 1547(d)(3) does not speak in terms of “presumption”, however, it would appear that the “permissive inference” approach of DiFrancesco continues to apply. This is so despite the fact that the 1982 amendments also added section 3731(a)(4) which expanded the crime of driving under the influence to include driving with a 0.10 per cent or greater blood alcohol level. If a defendant is specifically charged under section 3731(a)(4) and evidences a blood alcohol level of 0.10 per cent, it is conclusively proven that he was driving under the influence. However, when a defendant, such as appellant herein, is charged under section 3731(a)(1), evidence of a 0.10 per cent blood alcohol level is but one piece of evidence to be considered in determining whether he was under the influence.

This point was recently addressed by the court in Griscavage, supra. The defendant in Griscavage was charged with driving under the influence, section 3731(a)(1), and registered a blood alcohol level of .09 per cent. 75 Pa.C. S.A. § 1547(d)(2) provides that if:

[T]he amount of alcohol by weight in the blood of the person tested is in excess of 0.05% but less than 0.10%, this fact shall not give rise to any presumption that the person tested was or was not under the influence of alcohol, but this fact may be considered with other competent evidence in determining whether the person was or was not under the influence.

This Court concluded that “a result between .05% and .10% therefore indicates at most that the person had been drinking. It does not allow an inference to be made that the person was undey the influence.” (Emphasis added). Commonwealth v. Griscavage, 336 Pa.Super. 141, 152, 485 A.2d 470, 476 (1984), rev’d, 512 Pa. 540, 517 A.2d 1256. However, the Pennsylvania Supreme Court found that:

The Superior Court in failing to recognize the statute’s qualification mischaracterized the import of the statute. A correct construction is to the effect that when combined with other competent evidence of the person’s drinking, including observation of witnesses, admissions and the manner in which the person operated the automobile, a blood/alcohol test result higher than .05% but less that .10% allows the trier of fact to find that a defendant was “under the influence” beyond a reasonable doubt.

Id., 512 Pa. at 547, 517 A.2d at 1259 n. 6.

We can only conclude then, that the “permissible inference” approach is embodied in the 1982 amendments. Consistent with this finding, the Pennsylvania Suggested Standard jury instructions, in a case where the defendant is charged with a violation of section 3731(a)(1) and there is proof of a 0.10 per cent or greater blood alcohol level, would be as follows:

According to a Commonwealth witness, _, chemical analysis showed that the amount of alcohol by weight in the defendant’s blood was__If accurate and reliable, a test result of 0.10% or more permits a jury to infer, if it chooses to do so, that the person tested was under the influence of alchol to a degree which rendered him incapable of safe driving. You should consider the test result along with all other evidence in the case. If, after considering all the evidence, you have a reasonable doubt that the defendant was under the influence to a degree which rendered him incapable of safe driving you must find him not guilty regardless of the test result.

Pa.SSJI (Crim.) 17.1547A.

This charge, we believe, is an accurate recitation of the current law. The judge’s charge to the jury in the instant action was improper insofar as it required the jury to find that the defendant was under the influence of alcohol if his blood/alcohol was .10 per cent or more. While this would be a proper charge if appellant was held for a violation of section 3731(a)(4), a charge pursuant to section 3731(a)(1) must speak of permissible inferences. We note that the identical jury charge by the same judge was affirmed in Commonwealth v. Hess, 349 Pa.Super. 440, 503 A.2d 448 (1986), but there was also a finding of sufficient evidence beyond that of the blood alcohol level to establish the degree of intoxication rendering the defendant incapable of safe driving. Here, no other evidence was submitted to establish intoxication and the finding was compelled by the erroneous instruction given by the trial court.

Judgment of sentence vacated and case remanded for a new trial consistent with this Opinion.

      . 75 Pa.C.S.A. § 3731(a)(1).

      . 75 Pa.C.S.A. § 3731(a)(1) and 75 Pa.C.S.A. § 3731(a)(4) have been determined to be separate and distinct offenses. Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986). We determine that the proper jury charge in a case in which a defendant is charged with a violation of section 3731(a)(1) is in the form or consistent with that Pa. SSJI (Crim.) 17.1547A above.


author: CERCONE, Judge:

text:
    523 A.2d 804
    WOODSTOWN CONSTRUCTION INCORPORATED, Appellant, v. George H. CLARKE.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1986.
    Filed April 3, 1987.

      Matthew J. Creme, Jr., Lancaster, for appellant.
    Christina L. Hausner, Lancaster, for appellee.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This appeal arises from an order of court directing appellant, Woodstown Construction Inc. (Woodstown) to pay liquidated damages to appellee, George Clarke, for failing to timely strike a judgment it had entered against appellee as satisfied.

In August, 1982 Woodstown entered into a contract with appellee for the sale of certain real property. At the time for closing, appellee was unable to obtain a mortgage. In order to extend time for settlement, appellee executed a non-interest bearing judgment note in favor of Woodstown for $17,900.00 which appellant recorded in Columbia County. However, settlement never occurred. On March 11, 1983 Woodstown agreed to accept $1,000.00 as payment in full on the note and release Clarke from all claims related to the original contract. The release also provided that Woodstown would cause the judgment to be marked satisfied. In February, 1984 appellee brought suit pursuant to 42 Pa.C.S.A. § 8104 against appellant seeking liquidated damages for appellant’s failure to mark the judgment satisfied. Appellant responded by moving for a compulsory non-suit claiming that appellee had not complied with the “notice” provision of § 8104. After hearing testimony the lower court awarded appellee liquidated damages in the amount of $8,950.00, 50% of the amount of the recorded judgment. This timely appeal followed.

The issue before us is whether the court below erred in concluding that appellee had complied with the notice requirement of 42 Pa.C.S.A. § 8104 and in ordering appellant to pay liquidated damages.

Appellant alleges that appellee is not entitled to receive liquidated damages because (1) appellee as judgment debtor failed to request satisfaction in writing; (2) appellant did not receive payment in full of the underlying debt instrument but instead agreed to accept a lesser amount; and (3) liquidated damages are only awarded upon a finding that failure to satisfy the judgment is willful or wanton, a situation not present here.

We find that appellant has waived its second and third allegations for failing to raise them in post-trial motions. Pa.R.A.P. 302; Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) (issues cannot be raised for the first time on appeal). Nevertheless, appellant’s contention that appellee as judgment debtor had a duty to request satisfaction of the note in writing has been preserved for our review.

Appellant avers that appellee as judgment debtor was required under 42 Pa.C.S.A. § 8104 to request in writing that the judgment be marked satisfied and tender the fee for entry of satisfaction. Appellant further avers that appellee failed to comply with this section of the statute. We find appellant’s argument to be frivolous for it gives no credence to the release agreement entered into between the parties which contain the following proviso:

2. Woodstown agrees to cause the judgment entered in Columbia County to be satisfied and to return The Note marked satisfied to Clarke.

Furthermore the release was signed by Mr. John H. Luecker, president of Woodstown which indicated that appellant had actual notice of the obligation to satisfy the judgment. Hence, it is of no moment that appellee did not make a request in writing for satisfaction. While the release agreement does not speak to who was to tender the necessary fee for the expenses of satisfying the judgment, we find that since appellant was to satisfy the judgment and return to appellee the note marked satisfied he was also to expend all monies necessary to do so. We note that despite its argument, appellant on February 27, 1984 caused the judgment to be marked satisfied. Accordingly, this argument that it was to receive monies is meritless and made it subject to the imposition of liquidated damages.

As the lower court states in its opinion:

The judgment was satisfied by Woodstown on February 27, 1984. Clarke paid Woodstown the sum of $1,000.00 called for by the release April 19, 1983. Thirty days thereafter is May 20, 1983, representing a deficiency total of 282 days. The statute allows the award of liquidated damages up to 50% of the original judgment. Therefore, the total award of liquidated damages in this case is 50% of $17,900.00 which is $8,950.00. We shall direct that a judgment shall be entered accordingly.

However, we conclude that the lower court’s ordering appellant to pay appellee $8,950.00 as liquidated damages for failure to timely satisfy the judgment is in error. Here, the original agreement between the parties was subsequently modified. Specifically, the parties agreed to a mutual release of obligations and appellee’s payment to appellant, Woodstown, of $1,000.00 in lieu of full payment on the note. Because appellant only received $1,000.00 as full payment on a $17,900.00 note, we believe it would be a windfall were appellee to receive liquidated damages of $8,950.00 based on the amount of the original note.

For the aforestated reasons the order of the court below is vacated and this case remanded for an assessment of liquidated damages predicated on appellee’s payment of $1,000.00 on the note. Jurisdiction relinquished.

      . § 8104. Duty of judgment creditor to enter satisfaction
      (a) General rule. — A judgment creditor who has received satisfaction of any judgment in any tribunal of this Commonwealth shall, at the written request of the judgment debtor, or of anyone interested therein, and tender of the fee for entry of satisfaction, enter satisfaction in the office of the clerk of court where such judgment is outstanding, which satisfaction shall forever discharge the judgment.
      (b) Liquidated damages. — A judgment creditor who shall fail or refuse for more than 30 days after written notice in the manner prescribed by general rules to comply with a request pursuant to subsection (a) shall pay to the judgment debtor as liquidated damages 1% of the original amount of the judgment for each day of delinquency beyond such 30 days, but not less than $250 nor more than 50% of the original amount of the judgment. Such liquidated damages shall be recoverable pursuant to general rules, by supplementary proceedings in the matter in which the judgment was entered. 1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978.

      . Our decision herein does not overrule this court’s holding in Busy Beaver Building Centers, Inc. v. Tueche, 295 Pa.Superior Ct. 504, 442 A.2d 252 (1981) (where judgment creditor has not received payment in full on the note, liquidated damages may not be assessed for creditor’s failure to mark note as satisfied). We find this case to be distinguishable from Busy Beaver. There no release agreement existed between the parties. Busy Beaver, although taking a mortgage from the debtor, did not look to the mortgage as satistion in full of its judgment and contested the debtor’s allegations to the contrary.


author: HOFFMAN, Judge:

text:
    523 A.2d 806
    Rita DEEMER v. Donnamarie OROS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1987.
    Filed April 6, 1987.
    William T. Renz, Doylestown, for appellant.
    Dean P. Arthur, Doylestown, for appellee.

      Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order granting a new trial on the issue of damages. Appellant contends that (1) the release from liability executed by appellee was admissible at trial because it was not within the scope of 42 Pa.C.S.A. § 7101; and (2) appellee waived any right to challenge the release because she retained the settlement benefits. For the reasons that follow, we reverse the order granting a new trial and enter judgment on the jury’s verdict.

On December 7, 1982, at approximately 11:00 p.m., appellant and appellee were involved in an automobile accident. Appellee was taken to a hospital emergency room where she was x-rayed and treated for various cuts and bruises. N.T. April 29, 1986 at 1-21. She left the emergency room at about 4:00 a.m. Id. at 1-22. On December 13, 1982, six days after the accident, an adjuster employed by the company that insured appellant went to appellee’s home and obtained a release from liability in return for $2,100. In November, 1984, appellee filed this negligence action against appellant. The jury returned a verdict in favor of appellant because it found that the release was valid and not a product of fraud. Appellee filed a post-verdict motion requesting a new trial. The lower court granted appellee’s motion and ordered a new trial on the issue of damages. This appeal followed.

Appellant first contends that a release from liability is not inadmissible under 42 Pa.C.S.A. § 7101 if the release was not obtained while the releasor was confined to a hospital or sanitarium. Section 7101 provides the following:

(a) General rule.—
(1) No person whose interest is or may become adverse to a person injured who is confined to a hospital or sanitarium as a patient shall, within 15 days after the date of the occurrence causing the injury to such patient:
(i) Negotiate or attempt to negotiate a settlement with such patient.
(ii) Obtain or attempt to obtain a general release of liability from such patient.
(iii) Obtain or attempt to obtain any statement, either written or oral, from such patient for use in negotiating a settlement or obtaining a release.
(2) Any settlement agreement entered into, any general release of liability or any written or oral statement made by any person who is confined in a hospital or sanitarium after he incurs a personal injury, which is not obtained in accordance with the provisions of subsection (b) shall not be admissible in evidence in any matter relating to the injury and shall not be utilized for any purpose in any matter in connection therewith.
(3) Where a person is injured and confined as a patient to a hospital or sanitarium due to such injuries, no attorney shall, during the first 15 days of the confinement of such patient, enter or attempt to enter into an agreement relating to compensation wholly or partly on a contingent basis with such patient in connection with his injuries.
(b) Exception. — Subsection (a) shall not apply if at least five days prior to obtaining the settlement, release, statement or contingent fee agreement, the injured person has signified in writing, by a statement acknowledged before a notary public who has no interest adverse to the injured person, his willingness that a settlement, release, statement or contingent fee agreement be given or entered into.

42 Pa.C.S.A. § 7101.

The lower court held that the release was inadmissible because it was obtained within fifteen days of the accident and appellant had been hospitalized for a part of the fifteen days. The court relied on the reasoning expressed in Mar shall v. Powers, 75 Pa.D. & C.2d 416 (C.P.Phila.1975), aff'd per curiam, 240 Pa.Superior Ct. 729, 360 A.2d 230 (1976), vacated on other grounds, 477 Pa. 306, 383 A.2d 946 (1978). In Marshall, the trial court interpreted the predecessor to 42 Pa.C.S.A. § 7101, which contained substantially similar language to § 7101. The court concluded that:

When the nature of the injuries involved compel confinement in a hospital for a minimum period of time to treat serious injuries, the legislature chose a period of 15 days “from the date of the occurrence causing the person’s injury,” ... “during the first fifteen days of confinement” to invoke the terms of the statute, and it seems to us that the 15-day period under subsection (a) can run whether the person is actually confined to a hospital or not, so long as there was a minimum confinement to a hospital initially.

Marshall v. Powers, supra at 420. This Court affirmed by per curiam order. In Marshall, however, the court need not have reached this issue because the court initially concluded that the release had been signed while the plaintiff was in the hospital. Id. at 417-18, 419. Even if we are bound by our per curiam affirmance of this case, we are not bound by the court’s interpretation of the statute because that part of the court’s opinion was dictum. See In re Cassell’s Estate, 334 Pa. 381, 384, 6 A.2d 60, 61 (1939).

Since Marshall, none of our courts has addressed this precise issue. Therefore, our task is to interpret the statute. When words of a statute are not explicit, the Legislature has directed that their intent may be ascertained by considering various factors surrounding the enactment of the statute. 1 Pa.C.S.A. § 1921(c). When the words are clear and free from ambiguity, however, the letter of the statute should not be disregarded under the pretext of pursuing its spirit. Id. § 1921(b).

Here, the relevant words of the statute are clear and free from ambiguity. Webster’s Third New International Dictionary defines “confine” as “to hold within bounds,” or “to keep from leaving accustomed quarters under pressure of infirmity, childbirth, detention, [or] business reasons.” We need not reach the question whether one who was confined to a hospital or sanitarium for some period following an accident and who signed a release within fifteen days of the accident but at a time when he or she was no longer in the hospital falls within the protection of § 7101 because here appellant was never “confined to a hospital or sanitarium as a patient.” 42 Pa.C.S.A. § 7101(a)(1) (emphasis added).

At trial, appellant testified that she was in the hospital emergency room for several hours in the early morning following the accident. She was not admitted to the hospital as a patient, but instead, was treated in the emergency room and then sent home. While she was at the hospital she was free to leave at any time. Her injuries were not so severe as to prevent her from leaving the emergency room. On review of these facts, we conclude that she was not confined to the hospital as a patient within the plain meaning of the statute. But see Justice Larsen’s dissent in Marshall v. Powers, 477 Pa. 306, 309-310, 383 A.2d 946, 948 (1978) (LARSEN, J., dissenting) (one who appears at hospital for treatment or checkup as result of injury and remains until released or discharged has been confined for purposes of [the predecessor to 42 Pa.C.S.A. § 7101]).

Accordingly, the lower court erred in holding that the release is inadmissible under § 7101, and we reverse the order granting a new trial and enter judgment on the verdict for appellant.

Order reversed; judgment entered for appellant.

      . The jury determined that appellant was negligent but that the release from liability was valid. Thus, damages would be the only remaining issue in a new trial in this case.

      . The predecessor to 42 Pa.C.S.A. § 7101 is 12 P.S. § 1630 (repealed 1978).

      . The accident occurred on December 10, 1972, and the release was dated December 18, 1972. Marshall v. Powers, supra, at 417. The plaintiff stated in her answer to the defendant’s motion to strike that the release was taken within fifteen days of the accident and at a time when she was hospitalized. Id.

      . Our Supreme Court has held that a per curiam affirmance by the Supreme Court of a Superior Court opinion does not constitute an adoption of the Superior Court’s reasoning. See Pennsylvania Eng’g Corp. v. McGraw-Edison Co., 500 Pa. 605, 611 n. 5, 459 A.2d 329, 332 n. 5 (1983). We would apply this principle equally when the Superior Court affirms a trial court opinion by per curiam order.

      . Because of our disposition of appellant's first contention, we need not reach her second contention.