text:
    524 A.2d 516
    COMMONWEALTH of Pennsylvania, Appellant, v. Nicholas KARABIN.
    Superior Court of Pennsylvania.
    Argued July 10, 1986.
    Filed April 14, 1987.
    See also, 292 Pa.Super. 374, 437 A.2d 431.

      Ernest D. Preate, Jr., District Attorney, Scranton, for Com., appellant.
    Todd J. O’Malley and George V. Lynett, Scranton, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the sentencing court’s order reducing appellee’s sentence from a penalty of death to one of life imprisonment. The Commonwealth contends that the lower court erred in setting aside the death penalty because the jury properly determined that the aggravating circumstances outweighed any mitigating circumstances. We disagree and, accordingly, affirm the lower court’s order.

On August 8, 1979, appellee, Nicholas Karabin was found guilty by a jury of various crimes including murder of the first degree in connection with the death of Mr. Clarence Doolittle. The day after the guilty verdict was handed down, the trial court conducted a sentencing hearing before the jury pursuant to 42 Pa.C.S.A. § 9711(a)(1). At that hearing, the Commonwealth introduced the following evidence of aggravating circumstances: that the defendant was already serving a life sentence in connection with his conviction for the first degree murder of Gerald Walsh, and that the defendant had been convicted of aggravated assault for the shooting of Robert Christiano. After deliberation, the jury sentenced the defendant to death. The jury’s verdict slip read as follows:

We, the jury, unanimously sentence the defendant to death____ We, the jury, have found unanimously one or more aggravating circumstances which outweigh any mitigating circumstances. The aggravating circumstances are, one, a history of felonies, two, already serving a life sentence.

On July 19, 1983, the trial court set aside the penalty of death, and imposed a sentence of life imprisonment. We quote the lower court at length because it best expressed its reasoning and the circumstances surrounding the imposition of its sentence.

[W]e have the very disturbing situation of the introduction of the “conviction” for aggravated assault, amplified by the indictment as involving the shooting in the neck of one Robert Christiano. The clerk of Court testified from a certified copy of the docket entry that on January 17, 1979, the defendant in open court pled guilty; and on March 27, 1979, was sentenced to undergo imprisonment for not more than ten, nor less than five years. There was no objection to this testimony and no cross-examination concerning it.
This is extraordinary and almost incredible, when one examines what actually occurred as evidenced by the complete docket entries. Karabin did, in fact, plead guilty on January 17, 1979, and was sentenced on March 27, 1979; yet on the same day he was sentenced, a petition for allowance to withdraw his guilty plea and substitute a plea of not guilty was filed. On April 9, 1979, the Commonwealth answered the petition and on April 25, 1979, the trial court denied the petition. This denial was appealed to the Superior Court on May 16, 1979. All of these events transpired before the instant trial and all were obviously within knowledge of the defendant’s trial counsel and the prosecuting attorney. However, not one word of this is mentioned before a jury, which is about to deliberate on whether to sentence the defendant to death or life imprisonment. We hasten to add that the trial Judge who, of course, was not the one who had presided over the guilty plea on the aggravated assault charge, was totally unaware of the true nature of the proceeding.
It should also be noted that subsequent to this trial, the Superior Court on November 20, 1981, vacated the order of the Court of Common Pleas of Dauphin County, which had denied the defendant’s petition to withdraw his guilty plea, and remanded the case for a hearing on said motion. On December 30, 1981, the Court of Common Pleas approved Karabin’s motion to withdraw his guilty plea. A trial was held March 22, 1982, and resulted in a deadlock jury. An appeal is currently pending before the Superior Court of Pennsylvania.
Can it be said, therefore, that as of August 8, 1979, the defendant had been “convicted” of aggravated assault? The prosecutor in asking for the death penalty, so argued:
He has shot another man in the neck seriously wounding him. On two separate dates, March 17, 1978 and April 6, 1978, he was tried on the first charge of murder in December and convicted, was in Lackawanna County Jail on a life sentence facing a life sentence when this murder of Clifford Doolittle took place. He was also facing the charge on Mr. Christiano and on the 17th of January, he pled guilty to that charge. He was awaiting sentence and you heard what Judge Cal-well handed down, life plus five to ten years consecutive. There is a man in prison in February of 1979 on a life sentence hanging over his head and potentially more years there.
The trial Judge charged on this evidence:
He has two prior convictions involving violence, one death and the other aggravated assault, a shooting in the neck.
The Sentencing Code (42 Pa.C.S.A. § 9711(h)) provides that in reviewing the death sentence, the Supreme Court is to consider whether the evidence supports the finding of an aggravated circumstance. We think this duty also falls upon the lower court. It may well be that the jury would have sentenced Karabin to death on the basis of his prior murder conviction, since he was already serving a life sentence and such a finding would have been fully warranted and entirely proper. However, there is no way for this court at this time to invade the deliberative process of the jury and determine what weight the jury gave the testimony of the Christiano shooting. The prosecuting attorney should have brought to the trial court’s attention the full circumstances surrounding the defendant’s guilty plea and the subsequent efforts to withdraw it, and certainly defense counsel should have strenuously objected and at least cross-examined Mr. Hoffman as to the other relevant docket entries.

Lower Court Opinion at 21-22. At oral argument in this appeal, it was learned that appellee was subsequently convicted on March 17, 1986 of aggravated assault in connection with the shooting of Christiano. Motions for new trial and arrest of judgment are pending.

The Commonwealth contends that the lower court erred in setting aside the death penalty. We disagree. Our Supreme Court first addressed whether a reviewing court must vacate a death sentence when an aggravating circumstance lacks support and should not have been considered by the jury in Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985). There the Court stated in dicta that the improper presentation of an aggravating circumstance to the jury may be sufficient grounds for vacating a death penalty. Id., 508 Pa. at 69, 494 A.2d at 376. The Court, however, did not have to decide this issue for two reasons. First, the Court concluded that the aggravating circumstance that the appellant had challenged was properly presented to the jury. Id., 508 Pa. at 68, 494 A.2d at 376. Second, the jury found two aggravating circumstances and no mitigating circumstances. Id., 508 Pa. at 58-59, 494 A.2d at 371. Under the Pennsylvania Sentencing Code, 42 Pa.C.S.A. §§ 9701-9781, the jury is required to return a sentence of death if it finds “at least one aggravating circumstance ... and no mitigating circumstances.” Id. § 9711(c)(l)(iv). Thus, even if one of the aggravating circumstances presented to the jury had been improper, the jury was required to impose the death penalty and the reviewing court was powerless to vacate it.

In Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985) (plurality), cert, denied, — U.S. —, 106 S.Ct. 1804, 90 L.Ed.2d 349 (1986), this issue was again before our Supreme Court. There, the jury found that three aggravating circumstances outweighed any mitigating circumstances. Id., 508 Pa. at 474, 498 A.2d at 858 (NIX, C.J., concurring and dissenting). Although the plurality determined that the aggravating circumstances were supported by the evidence, it proceeded, in dictum, to state the consequences of an appellate determination that one or more of the aggravating circumstances were invalid. 508 Pa. at 458-59, 498 A.2d at 850.

First, the plurality cited the relevant part of the sentencing code, which provides that the Supreme Court shall affirm the death sentence unless:

the evidence fails to support the finding of an aggravating circumstance specified in subsection (d).

Id., 508 Pa. at 458, 498 A.2d at 850 (quoting 42 Pa.C.S.A. § 9711 (h)(3)(ii)). The plurality went on to state that

[although the statute could be read as allowing the sentence to stand, if there is at least one valid aggravating circumstance, despite presentation of an improper aggravating circumstance, we hold that if the prosecution presents to the jury an aggravating circumstance that is not supported by sufficient evidence, the sentence must be vacated.

Id. The plurality reasoned that when an improper aggravating circumstance is presented to the jury, it is impossible for a reviewing court to tell from the record how the jury would have decided absent the improperly presented circumstance. Id., 508 Pa. at 459, 498 A.2d at 850. A majority of our Supreme Court adopted this view in Commonwealth v. Aulisio, — Pa. —, —, 522 A.2d 1075, 1080 (1987), and held that a reviewing court must vacate a death sentence when an aggravating circumstance is not supported by the evidence and the jury specifically found some mitigating circumstances.

Here, the jury found that two aggravating circumstances outweighed any mitigating circumstances. The aggravating circumstances it cited were (1) that appellant was already serving a life sentence, see 42 Pa.C.S.A. § 9711(d)(10), and (2) a history of felonies, see id. § 9711(d)(9). The prior felonies that the Commonwealth introduced at the sentencing hearing included the conviction for which appellant was serving a life sentence and the conviction for the aggravated assault of Christiano. At the time appellant was sentenced in the instant case, however, he had moved to withdraw his guilty plea to the aggravated assault charge. This motion was ultimately granted. Thus, his conviction for aggravated assault was effectively overturned. It is true that appellant was later tried and convicted on the same charge of aggravated assault. This conviction, however, occurred after sentencing in the instant case and cannot support an aggravating circumstance in determining this sentence. Here, the lower court, which was the reviewing court, determined that the aggravated assault conviction should not have been considered by the jury as an aggravating circumstance because appellant had subsequently withdrawn his guilty plea to that charge. Lower Court Opinion at 21-22. Although the jury was properly presented with the other aggravating circumstance, that appellant was serving a life sentence at the time of the commission of this offense, we have no way of determining whether the jury would have found that the one proper aggravating circumstance outweighed any mitigating circumstances. Thus, we hold that the lower court was correct in vacating the death penalty and imposing a sentence of life imprisonment, and, accordingly, affirm the lower court’s order.

Order affirmed.

       The same standard would apply when, as here, the trial court is the reviewing court.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    524 A.2d 520
    The NICHOLSON COMPANY, Appellant, v. PENNSY SUPPLY, INC.
    Superior Court of Pennsylvania.
    Argued Nov. 20, 1986.
    Filed April 14, 1987.

      James F. Carl, Harrisburg, for appellant.
    Brigid Q. Alford, Harrisburg, for appellee.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   JOHNSON, Judge:

During the fall of 1973 the Nicholson Company (hereinafter referred to as Nicholson) was the general contractor in the construction of an industrial storage silo at the Ralston Purina plant in Mechanicsburg, Pennsylvania. A problem arose during construction and Nicholson absorbed the costs of the delay. Nicholson alleged that the delay was caused by faulty concrete provided by Pennsy Supply, Inc. (hereinafter referred to as Pennsy). Suit was filed but discontinued when the parties executed a written agreement to submit their dispute to common law arbitration. The agreement to arbitrate designated Walter H. Price as an arbitrator with expertise in technical matters relative to the dispute.

Arbitration hearings were conducted on March 27 and 28, 1979. Following the conclusion of the hearings, Nicholson submitted two letters to the arbitrator from a materials and concrete consultant who had testified for Nicholson during the hearings. Pennsy objected to the submission of these letters. On May 28, 1979, the arbitrator rendered a written decision holding both parties responsible for the construction failure, with each to bear half of the cost. Pennsy then filed a petition to vacate the arbitration award, alleging that the award was invalid because of the ex parte presentation of post-hearing evidence. The Court of Common Pleas in Cumberland County affirmed the award and Pennsy appealed. On December 2, 1983, this Court reversed the lower court and vacated the arbitrator’s award, holding that the ex parte submission of evidence after the hearings were closed denied Pennsy a fair hearing. See Pennsy Supply, Inc. v. Nicholson Co., 321 Pa.Super. 475, 468 A.2d 808 (1983).

The subject matter of the present appeal is a Petition to Compel Arbitration filed by Nicholson on November 28, 1985. The Court of Common Pleas denied the motion by opinion and order dated April 30, 1986. Nicholson properly brings this appeal from the April 30, 1986 order. See 42 Pa.C.S. § 7342(a) and 42 Pa.C.S. § 7320(a)(1).

Appellant raises a single question for our review: “Should the controversy have been resubmitted to an arbitrator following vacation of the arbitration award by the Superior Court?” The trial court answered this question in the negative. In its written opinion, the court concluded that a controversy may not be resubmitted to an arbitrator once the arbitrator has rendered a final award, citing Hartley v. Henderson, 189 Pa. 277, 42 A. 198 (1899).

The arbitration in this case is governed by common law principles. See Pennsy Supply v. Nicholson, supra, 321 Pa.Super. at 479, n. 1, 468 A.2d at 810, n. 1. It is true that under common law arbitration, an arbitrator completely exhausts his authority when he has made and published a final award.

He cannot correct mistakes in his award, or alter it to conform to his changed views____ He can do nothing more in regard to the arbitration or subject matter. He cannot reopen the case, nor make a new or supplemental award or report, nor alter or amend the award already made, nor file additional, explanatory, alternative or amendatory documents. What he has done must stand or fall without further aid or assistance from him.

Hartley v. Henderson, 189 Pa. at 282, 42 A. at 199. This is not to say, however, that a case may not be resubmitted to an arbitrator after the initial award has been vacated by court order. Both this Court and our Supreme Court have remanded common law cases for re-arbitration upon vacating an improper award. See Bole v. Nationwide Insurance Co., 475 Pa. 187, 379 A.2d 1346 (1977); James D. Morrisey, Inc. v. Gross Construction Co., 297 Pa.Super. 151, 443 A.2d 344 (1982). See also Mellon v. Travelers Insurance Co., 267 Pa.Super. 191, 199, 406 A.2d 759, 763 (1979). We find nothing in the common law of arbitration which required the dismissal of Nicholson’s petition.

The second basis for the trial court’s order turns on the scope of our previous decision in Pennsy Supply v. Nicholson, supra. There, a panel of this Court reversed the order confirming the arbitrator’s award and vacated the award itself. Id., 321 Pa.Super. at 482, 468 A.2d at 812. In denying Nicholson’s subsequent petition to compel arbitration, the trial court noted that we did not remand the case for further arbitration proceedings. The court concluded that Nicholson’s petition amounted to an improper attack upon the correctness of our previous decision. Pennsy now expounds upon this argument, referring to doctrines such as res judicata, collateral estoppel, and the “law of the case”.

Pennsy’s contentions are premised upon a misreading of our prior decision. In Pennsy Supply v. Nicholson, supra, the sole issue for our determination was the validity of the existing arbitrator’s award. Pennsy brought that appeal seeking to vacate the award, and Nicholson sought to defend it. It was in no way litigated, nor did we consider, whether re-arbitration would have been proper. Nicholson’s subsequent petition to compel arbitration does not challenge the propriety of the Pennsy decision. Having accepted the nullification of the initial award, Nicholson merely seeks to compel the arbitration to which it is entitled under the agreement.

Our Supreme Court has summarized the requirements for res judicata and collateral estoppel:

It is well settled that for the doctrine of res judicata to prevail there must be a concurrence of four conditions: 1) Identity of issues, 2) identity of causes of action, 3) identity of persons and parties to the action, and 4) identity of the quality or capacity of the parties suing or sued. With respect to collateral estoppel we have recently stated that a plea of collateral estoppel is valid if, 1) the issue decided in the prior adjudication was identical with the one presented in the latter action, 2) there was a final judgment on the merits, 3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and 4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action.

Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975) (citations omitted). “Thus, for [Pennsy] to invoke either res judicata or collateral estoppel the issues presented [in the previous appeal] must be the same as those raised in the instant action.” Id., 463 Pa. at 575, 345 A.2d at 668. This principle holds true for the law of the case doctrine as well. See Commonwealth v. Tick, 431 Pa. 420, 246 A.2d 424 (1968); Roskwitalski v. Reiss, 338 Pa.Super. 85, 90, 487 A.2d 864, 867 (1985); City of Philadelphia v. Stradford Arms, Inc., 1 Pa.Commw. 190, 274 A.2d 277 (1971). Because the issues now before us are outside the parameters of our previous decision, Pennsy’s arguments must be rejected.

Finally, Pennsy argues that Nicholson’s petition is barred by the equitable doctrine of laches. In support of this argument, Pennsy points to the fact that construction activity began thirteen years ago, that the initial arbitration occurred more than seven and one-half years ago, and that Walter H. Price, the designated arbitrator, may have passed away since the 1979 arbitration. It must be remembered, however, that the relevant delay is the two year period between our decision in Pennsy, supra, (filed December 2, 1983) and Nicholson’s petition to compel arbitration (filed November 27, 1985). In order to prevail on its assertion of laches, Pennsy must establish 1) a delay arising from Nicholson’s failure to exercise due diligence, and 2) prejudice resulting from the delay. See Class of 200 Administrative Faculty Members v. Scanlon, 502 Pa. 275, 466 A.2d 103 (1983); Kehoe v. Gilroy, 320 Pa.Super. 206, 212, 467 A.2d 1, 4 (1983). Assuming that the two year delay was unjustified, Pennsy must nevertheless show that “some change in the condition or relations of the parties occurred during the period [Nicholson] unreasonably failed to act. ” Kehoe, supra, 320 Pa.Super. at 214, 467 A.2d at 5, quoting Leedom v. Thomas, 473 Pa. 193, 201, 373 A.2d 1329, 1333 (1977) (emphasis added). This Pennsy has failed to do.

For the foregoing reasons, we reverse the order of the court below and remand the case for arbitration. Should the trial court find that the designated arbitrator, Walter H. Price, is no longer living or is otherwise unable to render a fair and impartial decision, then the court shall appoint a new arbitrator pursuant to 42 Pa.C.S. § 7305. This provision is expressly applicable to common law arbitration agreements. See 42 Pa.C.S. § 7342.

Order reversed and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.


author: ROWLEY Judge:

text:
    524 A.2d 522
    Alexander L. RICE, Appellant, v. BELL TELEPHONE COMPANY OF PENNSYLVANIA.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1986.
    Filed April 14, 1987.

      Daniel W. Ernsberger, Pittsburgh, for appellant.
    Harriet F. Withstandley, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and POPOVICH, JJ.
   OPINION OF THE COURT

ROWLEY Judge:

This is an appeal from the entry of a summary judgment in favor of Bell Telephone Company of Pennsylvania. Appellant presents two issues for review. We affirm.

Appellant is a former employee of ARCO, and he received numerous harassing phone calls. After consulting a local police chief and the current Beaver County telephone book which said that “unless that person has first obtained the consent of one or both of the parties” participating in the call, it is a crime for that person to tap the phone, appellant taped some phone calls. Thereafter appellant obtained the consent of his supervisor at ARCO, who himself had obtained the consent of ARCO’s in-house counsel, to tape a phone conversation between appellant and a former ARCO employee whom appellant suspected of making the harassing calls. The call was made on ARCO’s premises, and thereafter, appellant and his supervisor were fired for illegally taping the phone call with the former employee.

Appellant sued Bell by filing a five count complaint. The second count of the complaint is for negligent rendering of legal advice and counts three and four are for products liability under sections 402A and B of the Restatement (Second) of Torts. After the pleadings were closed, both parties moved for summary judgment. Appellant’s motion was denied, but Bell’s motion was granted as to all counts of the complaint. In this appeal, appellant raises issues only as to counts two, three and four of his complaint.

Appellant first argues that sections 402A and B of the Restatement should be extended to include recovery for non-physical harm such as injury to reputation and wage loss caused by defective products because tort liability in the present case is consistent with the expressed public policy behind the Restatement sections. Bell argues, inter alia, that products liability applies only where there is physical harm caused by exposure to a hazardous product and that appellant’s economic loss is not property damage and therefore not recoverable under a theory of products liability. In entering summary judgment in favor of Bell as to counts three and four of appellant’s complaint, the trial court concluded that “the factual situation alleged by [appellant] does not come within the purview of said legal theory” and that appellant did “not allege the type of condition or harm contemplated” by the Restatement.

Appellant’s complaint alleges that: 1) Bell is in the business of selling telephone books; 2) that the book reached appellant without a substantial change in its condition, and 3) that the phone book was defective and unreasonably dangerous in that it a) misstated the law on wire taps, b) misstated its authority to render legal advice, and c) was made without authority to render legal advice. The damages alleged are that appellant “suffered both financial and emotional harm relating to the benefits of employment and the stigma associated with such a discharge. [Appellant] has suffered and will continue to suffer harm to his reputation in the community.” R.R. 159-160.

We have reviewed the record under the applicable standard of review, Washington Federal Savings and Loan Assoc. v. Stein, 357 Pa.Super. 286, 515 A.2d 980 (1986), and have accorded due consideration to appellant’s argument and the authorities offered in support of it. Although the trial court found, inter alia, that the facts did not support appellant’s claim, we affirm the entry of summary judgment on a narrower ground. See Green v. Juneja, 337 Pa.Super. 460, 487 A.2d 36 (1985) (reviewing court may affirm decision of trial court if the result is correct on any ground).

We conclude that appellant’s damage allegations do not satisfy the requirement of 402A that liability be premised on “physical harm ... to the ultimate user ..., or to his property____” See Johnson v. General Motors Corp., 349 Pa.Super. 147, 502 A.2d 1317 (1986) (appellant’s complaint failed to assert that alleged defects in her automobile’s transmission made it unreasonably dangerous to the detriment of persons or property); Industrial Uniform Rental Co., Inc. v. International Harvester Co., 317 Pa.Super. 65, 463 A.2d 1085 (1983) (record must indicate that defect is a condition potentially dangerous to persons or property). Accordingly, we find no merit to appellant’s first issue.

Appellant next argues that Bell, in its corporate capacity or through its attorneys, had a duty to give non-negligent legal advice under the Restatement (Second) of Torts §§ 311 and 552. He also argues that the attorneys’ duty to appellant was established because Bell’s attorneys share Bell’s public duty to inform the public under 52 Pa.Code § 63.21 and under third party beneficiary contract law.

Bell argues that appellant has raised the applicability of § 552 for the first time on appeal and therefore has waived the issue. Alternatively, Bell argues that cases under § 552 all involve substantial business transactions and the false information relied upon is information specifically requested or information which the government is obligated to provide. Bell argues that § 311 is not applicable because it applies only where there is physical harm. Bell submits that it cannot be liable for legal malpractice because it was not practicing law: Bell did not agree to perform any legal service for appellant and appellant never contacted a legal representative of Bell. Moreover, it is submitted that third party beneficiary contract law cannot apply because there was no contract and appellant was not a foreseeable, intended beneficiary of any relationship between Bell and its attorneys.

Our review of the record, as certified to us, reveals that appellant did not raise the applicability of § 552 in the trial court. In fact, appellant only opposed Bell’s motion for summary judgment on counts three and four of his complaint. To uphold the entry of summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law. Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983). It should be noted that appellant does not argue that there are any disputed material issues of fact. Thus, the trial court was required to determine whether Bell was entitled to judgment as a matter of law. Our review of the trial court’s opinion satisfies us that the trial court, based on the record before it, properly concluded that Bell was entitled to summary judgment.

Judgment affirmed.

      . Bell sought summary judgment in its favor on all counts of appellant’s complaint; appellant’s motion for summary judgment was limited to counts three and four of its complaint and certain defenses raised by Bell in its new matter.

      . Bell assails almost every element of appellant’s products liability claim. Because of our disposition of appellant’s first issue, we express no opinion as to the other elements of appellant’s products liability claim.


author: BECK, Judge:

text:
    524 A.2d 896
    The BANK OF LANDISBURG and Alfred Albright v. Curtis W. BURRUSS, Carol E. Burruss, Shady Lane Dairy Sales, Inc., and Glen D. Fite, Appellants.
    Superior Court of Pennsylvania.
    Submitted June 25, 1986.
    Filed Feb. 24, 1987.
    Reargument Denied May 8, 1987.
    Petition for Allowance of Appeal Denied Sept. 30, 1987.

      John F. Pyfer, Jr., Lancaster, for appellants.
    William P. Douglas, Carlisle, for appellees.
    Before WIEAND, BECK and WATKINS, JJ.:
   BECK, Judge:

The issue is whether a corporation or its officers are liable for conversion when they sell a farmer’s cattle and pay the proceeds of the sale to the farmer where the cattle are subject to a third party’s security interest.

This is an appeal by Shady Lane Dairy Sales, Inc. (“Shady Lane”), a family-owned corporation engaged in livestock auctioneering, and by its president Glenn D. Fite, from a grant of summary judgment. We affirm summary judgment against both Glenn D. Fite and Shady Lane.

I. FACTUAL BACKGROUND

The Bank of Landisburg lent $46,925 for the purchase of 34 head of cattle to Curtis and Carol Burruss, a husband and wife engaged in farming operations in Cumberland County. The Burrusses purchased the cattle from Alfred Albright, who guaranteed the loan. In return, the Burrusses signed three security agreements granting Albright a security interest in the cattle. In these agreements, the Burrusses promised not to sell or otherwise dispose of the cattle without Albright’s prior written authorization. Al-bright perfected his security interest by filing financing statements in the office of the Cumberland County prothonotary.

According to appellants Shady Lane and Fite the following events then occurred. The Burrusses contacted Shady Lane in order to arrange for the sale of their cattle. After visiting the Burrusses’ farm, Fite hired a man to transport the cattle from Cumberland County to Shady Lane’s place of business in Lancaster County. About four days later, an independent contractor acting for Shady Lane auctioned off the cattle for $24,170. Shady Lane retained $2507 as costs and commission and remitted the balance to the Burrusses, who took the money and promptly disappeared.

In essence, appellants maintain that Fite had no reason to suspect that the Burrusses had violated security agreements and that Fite at all times acted in good faith. However, it is undisputed that neither Fite nor anyone else associated with Shady Lane ever searched the records of the Cumberland County prothonotary’s office to determine if a security interest was perfected as to the cattle.

II. LIABILITY OF SHADY LANE CORPORATION The theory of the Bank of Landisburg and Albright, the appellees, is that Shady Lane’s sale of the cattle constitutes a conversion. In order to address this argument, we must consider the scope of the tort of conversion at common law.

Pennsylvania’s appellate courts have not previously considered whether a broker of livestock may be held liable to a secured party for conversion. See United States v. Sommerville, 324 F.2d 712, 722 (3rd Cir.1963) (Steel, J., concurring), cert, denied 376 U.S. 909, 84 S.Ct. 663, 11 L.Ed.2d 608 (1964). Yet, in other jurisdictions, the clear weight of authority supports the view that a broker converts cattle when he sells them without the secured party’s permission. See United States v. Matthews, 244 F.2d 626 (9th Cir., 1957); Annotation, Personal Liability of Auctioneer to Owner or Mortgagee for Conversion, 96 A.L.R.2d 208 (1964). This position has been adopted by federal courts applying Pennsylvania law. United States v. Chesley’s Sales, Inc., 523 F.Supp. 528 (W.D.Pa.1981); United States v. Sommervile, 324 F.2d at 718-725 (Steel, J., concurring). Similarly, we find that appellees have a cause of action for conversion.

Conversion is defined as “the deprivation of another’s right of property in, or use or possession of, a chattel, or other interference therewith, without the owner’s consent and without lawful justification.” Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 451, 197 A.2d 721, 726 (1964). When such an act occurs, the plaintiff may bring suit if he had an immediate right to possession of the chattel at the time it was converted. Potts Run Coal Co. v. Benjamin Coal Co., 285 Pa.Super. 128, 135, 426 A.2d 1175, 1178 (1981).

The security agreements between Albright and the Burrusses entitled Albright to “retake immediate possession” of the cattle if they were sold without his prior consent. By auctioning the cattle, Shady Lane intentionally — although perhaps unknowingly — interfered with Al-bright's use and possession of a chattel in which he had a property interest. We are therefore satisfied that a conversion took place.

Counsel for appellants contends that there can be no conversion unless the defendant has exercised a substantial degree of dominion or control over the property of another. Yet, counsel concedes that Shady Lane was in possession of the cattle for approximately four days, that Shady Lane had the cattle transported from county to county, and that Shady Lane had the cattle sold. Shady Lane clearly had a sufficient degree of control to be held accountable. In Lindsley v. First National Bank of Philadelphia, 325 Pa. 393, 190 A. 876 (1937), the Court found that a collecting bank which improperly credits a check to a depositor's account has exercised such dominion over the check so as to be liable for conversion to the true payee. Lindsley indicates that the extent of the control which a converter must have over a chattel is far less than counsel would have us believe.

We also note that appellants have not come forward with any evidence from which a jury could infer that Albright waived his security interest by consenting to the sale of the cattle. Compare United States v. Walter Dunlap & Sons, 800 F.2d 1232 (3rd Cir.1986); East Central Fruit Growers Production Credit Ass’n. v. Zuritsky, 346 Pa. 335, 30 A.2d 133 (1943) (mortgagee’s acquiescence in sale of chattel through broker constitutes waiver).

We need only consider further whether Shady Lane should be shielded from liability on the grounds that its officer acted in good faith.

Ordinarily, there is no inconsistency between finding that a defendant acted in good faith and finding that he is a converter. See United States v. Matthews, 244 F.2d at 626. Fraudulent intent is not an element of the tort of conversion. Baker v. Rangos, 229 Pa.Super. 333, 348, 324 A.2d 498, 505 (1974). Nevertheless, First National Bank of Blairstown v. Goldberg, 340 Pa. 337, 17 A.2d 377 (1941), indicates that there are unusual circumstances in which good faith will defeat a conversion claim under Pennsylvania law.

The Goldberg case concerned an attorney who innocently assisted a client in selling stolen negotiable bonds. The true owner of the bonds sued the attorney for conversion. The Court first noted that:

... the general rule, is, as formulated in Restatement, Agency, section 349, that ‘An agent who does acts which would otherwise constitute conversion of a chattel is not relieved from liability by the fact that he acts on account of his principal and reasonably, although mistakenly, believes that the principal is entitled to possession of the chattels.

340 Pa. at 341, 17 A.2d at 379. The Court, however, declined to apply this general rule on the grounds that to do so would thwart the purpose of the law regulating the exchange of negotiable bonds.

The purpose of the Negotiable Instruments Law is to enhance the marketability of such securities and to allow bankers, brokers, and people generally to trade in them in confidence. That object would be defeated if liability were to be imposed upon one who, mistakenly but in good faith, deals with negotiable instruments on the assumption that they belong to the person who employs him to effect their sale through ordinary market channels.

340 Pa. at 343, 17 A.2d at 380. Accordingly, the Court found that since the attorney had demonstrated his good faith, he was not liable.

Goldberg, stands for the principle that when the question of good faith is raised in response to a conversion claim, it is permissible for the court to consider the objectives of the commercial legislation regulating the exchange of the chattel which the defendant is accused of converting. In the case sub judice, the debtors’ livestock were covered by security agreements which by their own terms were governed by the provisions of Pennsylvania’s enactment of the Uniform Commercial Code (U.C.C.), 13 Pa.Cons.Stat. Ann. § 1101 — § 9507 (Purdon 1984). We conclude that finding Shady Lane liable will not frustrate the policies behind the U.C.C. even though Shady Lane’s officers may have acted in good faith.

One purpose of Article 9 of the U.C.C. is to protect the interests of secured parties so that they will be willing to extend credit to farmers and other businessmen. See Garden City Production Credit Ass’n v. Lannan, 186 Neb. 668, 672-673, 186 N.W.2d 99, 102 (1971). Farmers who raise livestock are particularly dependent upon the availability of credit extended in return for pledging their livestock as collateral. See Note, Commercial Law — Uniform Commercial Code — Security Interests in Livestock, 8 Nat.Resources J. 183 (1968). Failing to impose liability on brokers may spur lenders to implement more restrictive credit policies which in turn may impede agricultural development. See Id.

Moreover, Article 9 establishes a comprehensive system for recording security interests. There is no evidence here that Albright did not properly file his financing statements or that Shady Lane could not have discovered these financing statements by conducting a search. Imposing liability provides an incentive for corporations dealing in livestock to consult the Article 9 recording system. This will help prevent unauthorized sales of collateral by farmers. See Production Credit Ass’n. of Chippewa Falls v. Equity Coop Livestock Sales Ass’n., 82 Wis.2d 5, 8, 261 N.W.2d 127, 128 n. 5 (1978).

This is not to say that the U.C.C. exists solely in order to safeguard the secured party’s investments. The U.C.C. balances the interests of the secured party and the interests of the other parties involved in the commercial transaction. For example, section 9307(a) protects a person who buys goods in the ordinary course of business from the claims of a creditor with a perfected security interest in the goods. This provision indicates that one objective of the U.C.C. is to facilitate free trade in chattels. In this sense, Article 9 is perhaps analogous to the Negotiable Instruments Law discussed in Goldberg which fostered free trade by implicitly protecting brokers as well as buyers.

The problem with applying this argument to the case sub judice is that the Burrusses’ cattle were farm products. Unlike the policy in the Goldberg case, the policy of the U.C.C. as it relates to farm products is to protect the secured party. This policy is spelled out in section 9307(a) which provides:

A buyer in ordinary course of business ... other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.

13 Pa.Cons.Stat.Ann. § 9307(a) (Purdon 1984) (emphasis added).

The above quoted section protects the secured party rather than the buyer in the ordinary course of business in a dispute over farm products. In the instant case, the dispute is between the secured party and the broker. Yet, insofar as section 9307(a) favors the interests of creditors who have security interests in farm products, we find that the section is equally applicable to both brokers and buyers. The overall effect of this “farm products exception” to the buyer in ordinary course rule is to subordinate the goal of promoting the free movement of farm products to the goal of protecting a creditor’s right to claim farm-related collateral. See generally Dolan, Section 9-307(1): The U.C.C.’s Obstacle to Agricultural Commerce in the Open Market, 72 Nw.U.L.Rev. 706 (1977). Therefore, we cannot say that holding a broker such as Shady Lane liable will interfere with legislative policy. The Goldberg case is clearly distinguishable.

[61 In summary, we are not convinced that there is sufficient cause to exempt Shady Lane from the rules of conversion liability which ordinarily apply. When a corporation auctions livestock without the authorization of the secured party, it is liable for conversion without regard to good faith — at least where the broker could have learned of the security interest by resorting to the recording system, and where the livestock sold fall within the farm product exception of section 9307(a).

III. LIABILITY OF CORPORATE OFFICER

Counsel for appellants argues that even if Shady Lane is guilty of conversion, its president, Glenn D. Fite, should not be held jointly and severably liable. The question of Fite’s liability must be considered in light of Wicks v. Milzoco Builders, 503 Pa. 614, 621-22, 470 A.2d 86, 90 (1983) in which the court stated that:

Pennsylvania law recognizes the participation theory as the basis of liability.
The general, if not universal, rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor; but that an officer of a corporation who takes no part in the commission of the tort committed by the corporation is not personally liable to third persons for such a tort, not for the acts of other agents, officers or employees of the corporation in committing it, unless he specifically directed the particular act to be done or participated, or cooperated therein.
3A Fletcher, Cyclopedia of the Law of Private Corporations § 1137, p. 207 (perm. ed. rev. 1975).

Under the particular facts of this case, we find that Fite’s conduct involved a sufficient degree of participation in Shady Lane’s tort to impose liability. Fite personally visited the Burrusses’ farm to negotiate a sale of cattle, and he personally made arrangements for the delivery of the cattle to Shady Lane’s auction. At the same time, Fite neglected to search the recording system himself, and he failed to delegate responsibility for searching the recording system to another. He must bear the consequences.

IV. MEASURE OF DAMAGES

Under Pa.R.C.P. 1035(b), summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Thorsen v. Iron & Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984). In light of the foregoing discussion, we affirm the grant of summary judgment against Shady Lane and Glenn D. Fite.

Appellants contend that the trial court erred by awarding damages of $24,170. The measure of damages for conversion is the market value of the converted property at the time and place of conversion. Northcraft v. Edward C. Michener Associates, 319 Pa.Super. 432, 466 A.2d 620 (1983). This was the $24,170 which the cattle brought in at auction.

Judgment affirmed.

      . The common law, rather than Pennsylvania’s Uniform Commercial Code, is controlling as to whether a secured party may bring suit for conversion. 13 Pa.Cons.Stat.Ann. § 9306(b) (Purdon 1984) states: "Except where this division otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise ...” Comment 3 further explains: “In most cases when a debtor makes an unauthorized disposition of collateral, the security interest, under prior law and under this Article, continues in the original collateral in the hands of the purchaser and other transferee. That is to say since the transferee takes subject to the security interest, the secured party may repossess the collateral from him or in an appropriate case maintain an action for conversion.” Nevertheless, the Code does not specify what is and is not an "appropriate case” for maintaining this cause of action. We must therefore resort to 13 Pa.Cons.Stat.Ann. § 1103 which states: “Unless displaced by the particular provisions of this title, the principles of law and equity ... shall supplement its provisions.” See United States v. Sommerville, 324 F.2d 712, 724-25 (3rd Cir.1963) (Steel, J., concurring) cert, denied 376 U.S. 909, 84 S.Ct. 663, 11 L.Ed.2d 608 (1964).

      . See Restatement (Second) of Agency § 349 (1958). See also Restatement (Second) of Torts § 233 (1965) (related principle).

      . We recognize that an auctioneer’s efforts to search the recording system are complicated by 13 Pa.Cons.Stat.Ann. § 9401(a)(1) (Purdon 1984). Under that provision, a security interest in cattle is perfected merely by filing a financing statement with the prothonotary of the Pennsylvania county in which the debtor resides. On the other hand, for most types of collateral, the secured party can perfect his security interest only by filing both on the local county level and with the Secretary of the Commonwealth. See 13 Pa.Cons.Stat.Ann. § 9401(a)(3).

      . In Top Line Equip, v. National Auction Serv., 32 Wash.App. 683, 649 P.2d 165 (1982), the Washington Court of Appeals held that livestock brokers have constructive notice of security interests recorded pursuant to the U.C.C. Although we do not reach this issue, we believe that the existence of a public recording system is one factor which weighs against recognition of a special good faith exception to conversion for brokers.

      . As to the significance of the farm-product exception in depriving brokers of protection from liability for conversion, See 2 Grant Gilmore, Security Interests in Personal Property, § 26.10 (1965); Skilton, Buyer In Ordinary Course of Business Under Article 9 of the Uniform Commercial Code (and Related Matters), 1974 Wis.L.Rev. 1, 71. The farm products exception has been criticized by many commentators. The wisdom of that provision is a matter for the legislature to address.

      . Professor Martin J. Aronstein has forcefully argued that a corporate officer whose acts directly lead to the breach of a security agreement, but who neither knew nor should have known of the existence of the security agreement, should not be held liable for conversion. Good Faith Performance of Security Agreements: The Liability of Corporate Managers, 120 U.Pa.Rev. 1, 37 (1971). We need not reach this issue since we believe that Fite could have learned of the existence of the Albright-Burruss security agreements if he had diligently searched the prothonotary’s records.


author: BECK, Judge: CIRILLO, President Judge ,

text:
    524 A.2d 902
    COMMONWEALTH of Pennsylvania v. John Francis MEO, Appellant. COMMONWEALTH of Pennsylvania v. Phyllis Marci TIZER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1986.
    Filed March 13, 1987.
    Concurring Statement May 1, 1987.
    Reargument Denied May 18, 1987.

      John P. Lawler, Stroudsburg, for appellant John Francis Meo.
    Mark S. Love, Stroudsburg, for appellant Phyllis Marci Tizer.
    Jane Roach, Assistant District Attorney, Allentown, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY and BECK, JJ.
   BECK, Judge:

These are consolidated appeals from appellants’ judgments of sentence for possession of a controlled substance (methamphetamine) with intent to manufacture. Appellants contend that (1) there was insufficient evidence introduced at trial to show that they possessed the methamphetamine; (2) evidence seized pursuant to a search warrant should have been suppressed because (a) the probable cause affidavit supporting the warrant was insufficient and (b) the execution of the search warrant was defective because the police did not wait a reasonable period of time before forcibly entering the premises; (3) the trial court committed various sentencing errors; and (4) the trial court erred in denying defense counsel access to a report prepared by a police officer that the officer reviewed before he testified at appellants’ joint trial. In addition, appellant Meo contends that he was entitled to a mistrial because the Commonwealth failed to disclose fingerprint evidence as required by Pa.R.Crim.P. 305 B(l)(f). Because we find that the trial court erred in denying appellants access to the police report, and because we cannot determine if that error is harmless on this record, we remand for an evidentiary hearing on harmless error.

On April 26, 1984, appellants were arrested and charged with various violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.Stat.Ann. §§ 780-101 through 780-144 (Purdon 1983). The cases were consolidated and appellants were tried before a jury in January, 1985. On January 8, 1985, the jury found appellants guilty of possession of a controlled substance with intent to manufacture. Appellant Meo was later sentenced to a four-and-one-half-to-nine-year term of imprisonment, and appellant Tizer was sentenced to a one-to-five-year term of imprisonment. Both Meo and Tizer appealed, and the two appeals were thereafter consolidated.

Appellants first contend that there was insufficient evidence introduced at trial to show that they possessed the methamphetamine, and that evidence seized pursuant to a search warrant should have been suppressed. In addition, appellant Meo contends that he was entitled to a mistrial because the Commonwealth failed to disclose fingerprint evidence as required by Pa.R.Crim.P. 305 B(l)(f). After carefully reviewing the record and the parties’ briefs, we conclude that the lower court has adequately disposed of appellants’ sufficiency and suppression claims, as well as Meo’s claim regarding discovery of fingerprint evidence.

Appellants next contend that the trial court erred in sentencing them. These claims are meritless.

Appellant Meo argues that his sentence exceeded the sentencing guidelines because the Commonwealth failed to produce sufficient evidence of his prior convictions, and thus the court should not have sentenced him as a repeat offender.

[T]he defense has the burden of alleging invalid prior convictions, and ... if the allegations appear to have merit, the court ordinarily should inquire into the circumstances surrounding the convictions. If the allegations warrant it, the court should require the production of evidence by the Commonwealth showing the validity of the convictions. If the defendant fails to prove to the satisfaction of the court that the inference of constitutional adjudications is wrong, the court may infer that a presentence report showing convictions is accurate, and proceed on that basis.

Commonwealth v. Charles, 339 Pa.Super. 284, 296, 488 A.2d 1126, 1132 (1985).

Here, appellant Meo challenged the accuracy of the prior record score that was contained in the pre-sentence report. The court held a hearing, where the probation officer who prepared the report testified. The officer testified that, in preparing his report, he relied on computer printouts from Philadelphia and New Jersey courts, as well as rap sheets from the F.B.I. and the Pennsylvania State Police. The officer’s testimony established that the only error in his original report was that he had listed appellant as having ten, rather than nine, prior convictions. This error in the calculation of appellant’s prior convictions, however, had no effect on his prior record score. Moreover, appellant offered no evidence to show that any of the remaining nine convictions were invalid. Accordingly, we conclude that the court did not err in relying on this prior record score when it sentenced appellant. See Commonwealth v. Charles, supra.

Appellant Tizer argues that the trial court abused its discretion in sentencing her because (1) it failed to consider probation as an alternative to total confinement; and (2) its reasons for imposing a sentence of total confinement lacked merit and were insufficiently articulated. Sentencing is a matter vested in the sound discretion of the trial court and a trial court’s judgment of sentence will not be disturbed unless an abuse of discretion is shown. Commonwealth v. Rooney, 296 Pa.Super. 288, 292, 442 A.2d 773, 774 (1982). Nevertheless, sentencing judges must state for the record the reasons that lead them to impose a particular sentence. Commonwealth v. Riggins, 474 Pa. 115, 133, 377 A.2d 140, 149 (1977). The trial court’s statement of reasons should demonstrate that it has considered the factors set forth in the Sentencing Code, 42 Pa.Cons. Stat.Ann. §§ 9701-9781 (Purdon 1982), and that it has balanced the defendant’s background and character against the circumstances of the crime, the need for incarceration, and the possibility of rehabilitation. Commonwealth v. Wicks, 265 Pa.Super. 305, 314, 401 A.2d 1223, 1227 (1979).

A review of the sentencing hearing convinces us that the trial court properly applied the above standards. Looking to appellant’s background and character, the court noted her prior drug problems and her apparent inability to remove herself from the “drug culture.” The court concluded from these facts that appellant’s “frame of mind” was such that she was unlikely to break free from that culture and thus was likely to commit this type of crime again. The court further noted that the crime of manufacturing drugs is a particularly serious one. Looking to mitigating factors, the court noted that, although appellant had no relevant prior record, there still was no provocation involved, nor were there other grounds to justify her conduct. Finally, the court noted that, because appellant has no dependents, incarceration would impose no undue hardship. These statements demonstrate both the trial court’s awareness of Sentencing Code factors and a balancing of appellant’s character with the nature of the crime, the need for incarceration, and the possibility of rehabilitation. Thus, we conclude that the lower court did not abuse its discretion in sentencing appellant Tizer to a sentence of confinement.

Appellants next contend that they are entitled to a new trial because the trial court erred in refusing to allow defense counsel to examine a police report prepared by a police officer who testified for the Commonwealth. The law governing defense entitlement to view such reports is well-settled:

There is no bar ... to requesting discovery of a witness’s written statements during trial. Commonwealth v. Kontos, 442 Pa. 343, 276 A.2d 830 (1971). In fact, “relevant, pre-trial statements of witnesses in the possession of the Commonwealth must be made available to the accused, upon request, during the trial.” Commonwealth v. Morris, 444 Pa. 364, 366, 281 A.2d 851 (1971)____ This rule extends to reports made by police officers who testify as witnesses. Commonwealth v. Swierczewski, 215 Pa.Super. 130, 257 A.2d 336 (1969).

Commonwealth v. Robinson, 229 Pa.Super. 131, 136, 324 A.2d 441, 444 (1974) (emphasis added). See also Commonwealth v. Grimm, 249 Pa.Super. 441, 448, 378 A.2d 377, 381 (1977). Defense counsel is allowed access to such statements “so that he may uncover inconsistencies between a witness’ pre-trial statements and his testimony at trial.” Commonwealth v. Rines, 247 Pa.Super. 429, 434, 372 A.2d 901, 903-04 (1977). In this analysis, “[w]hether the statements of the prosecution’s witnesses would have been helpful to the defense is not a question to be determined by the prosecution or by the trial court.” Commonwealth v. Grayson, 466 Pa. 427, 429, 353 A.2d 428, 429 (1976). Instead, defense counsel must be able to view the statement “with the eyes of a trial advocate,” thus insuring that the defense has a fair opportunity to cross examine the witness. Id.

Here, the Commonwealth’s first witness was Ronald M. Kutch of the Pennsylvania State Police Strike Force. On direct examination, Kutch described the police surveillance of the home where appellants were later arrested, his obtaining a search warrant, and the execution of that warrant, culminating in the arrest of appellants and the seizure of evidence from the home. On cross-examination, Kutch admitted that he had prepared a police report on the case, and that he had reviewed his report prior to testifying. Defense counsel then asked to examine the report, which Kutch had brought with him to court, before continuing with cross-examination. After an extensive discussion at sidebar, the trial court denied the defense request because the report contained only Kutch’s account of the investigation, and did not contain exculpatory or verbatim statements from witnesses.

The lower court thus drew a distinction between police reports that contain statements of non-police witnesses and a report, like the one at issue here, which contains only the account of the officer who prepared it. In Commonwealth v. Rines, supra, this court rejected this approach, holding that: “[a]ny argument based on a distinction between police and civilian witnesses is precluded by Commonwealth v. Swierczewski, [supra].” Commonwealth v. Rines, supra, 247 Pa.Super. at 434, 372 A.2d at 903. See also Commonwealth v. Cooper, 240 Pa.Super. 477, 493, 362 A.2d 1041, 1051 (1976) (police reports are to be made available to defendant subject only to review by the trial judge for relevancy), remanded on other grounds 468 Pa. 390, 363 A.2d 783, cert, denied sub nom. Cooper v. Pennsylvania, 429 U.S. 1048, 97 S.Ct. 758, 50 L.Ed.2d 763 (1977). We therefore conclude that the lower court erred in denying appellants’ request to see the police report.

The Commonwealth contends that any error in the trial court’s denial is harmless because the police report contains “nothing more than the facts recited in the probable cause affidavit and testified to at the suppression hearing and at trial.” Brief of Appellee at 6. The failure to grant a defense request for police reports may indeed be harmless error. Commonwealth v. Grimm, supra 249 Pa.Super. at 449, 378 A.2d at 381. The Commonwealth bears the burden of establishing that the error was harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 406 n. 11, 383 A.2d 155, 162 n. 11 (1978). The difficulty in analyzing the harmlessness of the error in the instant case is that the officer’s report is not part of the record, and we therefore cannot “determine what effect the court’s ruling might have had on the jury’s verdict.” Commonwealth v. Grimm, supra 249 Pa.Super. at 449, 378 A.2d at 381. In such cases, we must remand to the trial court for an evidentiary hearing to determine whether the failure to allow appellants access to the report prepared by the police officer witness was harmless error. Commonwealth v. Cooper, 468 Pa. 390, 391, 363 A.2d 783, 783 (1976), cert, denied sub nom. Cooper v. Pennsylvania, 429 U.S. 1048, 97 S.Ct. 758, 50 L.Ed.2d 763 (1977); Commonwealth v. Grimm, supra.

If the trial court determines the claimed error to have been harmless, the judgments of sentence will stand. If the trial court determines the claimed error not to have been harmless, we direct the trial court to vacate the judgments of sentence and order a new trial for appellants. The trial court’s determination may be appealed.

Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

CIRILLO, President Judge ,

concurring:

I agree with the result reached by the majority. However, I would not decide the sentencing issues raised by the appellants because neither appellant has “set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of ... sentence.” Pa.R.A.P. 2119(f). Accordingly, since neither appellant has properly petitioned for allowance of appeal on the discretionary aspects of sentence by attempting to demonstrate a “substantial question that the sentence imposed is not appropriate under [the Sentencing Code],” 42 Pa.C.S. § 9781(b), we should not allow their appeals on the sentencing issues. See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

      . Appellant Tizer also contends that the trial court erred in sentencing her in excess of the sentencing guidelines, without adequately explaining the deviation. This contention is meritless. Appellant was sentenced to a one-to-five-year term of imprisonment. Appellant correctly states that her "prior record score is zero, [and her] offense gravity score is six.” Brief for Appellant Tizer at 36 n. 3. These scores result in a suggested minimum sentencing range of four-to-twelve months. 204 Pa.Code § 303.9. Thus, appellant’s sentence fell at the upper limit of the minimum range, and her claim that the sentence exceeds the guidelines must fail.

      . In an attempt to display the harmlessness of the trial court’s denial of access to the police report, the Commonwealth filed an Application for Relief pursuant to a Pa.R.A.P. 123, requesting leave to supplement the record with a copy of the police report. The application was denied by order of this court.

       Filed May 1, 1987


author: CIRILLO, President Judge:

text:
    524 A.2d 906
    COMMONWEALTH of Pennsylvania ex rel. James HARMON v. Thomas FRANE—Warden of the Chester County Prison. Appeal of James HARMON.
    Superior Court of Pennsylvania.
    Submitted Jan. 15, 1987.
    Filed March 17, 1987.
    Reargument Denied April 24, 1987.

      James J. DeMarco, Philadelphia, for appellant.
    Janice V. Quimby, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   CIRILLO, President Judge:

This is an appeal from a denial by the Court of Common Pleas of Chester County of a Writ of Habeas Corpus. We affirm.

Appellant, James Harmon, is challenging a warrant issued by the Governor of Pennsylvania on June 16, 1986 which was served on Harmon on July 3, 1986. The warrant was issued at the request of the Governor of New York under authority of the Pennsylvania Uniform Extradition Act. See 42 Pa.C.S.A. § 9101 et seq. In New York, Harmon has been charged with grand larceny and delivering regulated waste in violation of a permit. The charges arose from a contractual agreement between Harmon and Montifiore Hospital of New York whereby Harmon agreed to incinerate the hospital's waste within New York State. Between October 24, 1983 and September 1, 1985, the waste was allegedly dumped illegally in Pennsylvania. On March 12, 1986, Harmon was arrested in Pennsylvania pursuant to a fugitive warrant issued by New York authorities. On June 30, 1986, the Court of Common Pleas of Bucks County dismissed a fugitive warrant on the same charges because the Commonwealth failed to produce a governor’s warrant within the 90 day period required by the Act. See 42 Pa.C.S.A. §§ 9136, 9138. On July 3, 1986, Harmon was arrested pursuant to a Governor’s Warrant dated June 16, 1986. That same day he filed a Writ of Habeas Corpus challenging his extradition. The hearing court dismissed the writ and Harmon appealed.

Appellant presents two issues for our review: (1) whether his rearrest was invalid because the governor’s warrant was signed on June 16, 1986, prior to his discharge on June 30; and (2) whether the governor’s warrant failed to comply with the Extradition Act by failing to specify that appellant was present in New York State when the crimes in question were committed.

As this court stated in Commonwealth ex rel. Holcombe v. Strode, 266 Pa.Super. 39, 402 A.2d 1067 (1979), “it is well-settled that where a defendant has been held on detainers or warrant and is discharged, there is no prohibition against rearrest on a new warrant.” Id., 266 Pa.Superior Ct. at 43, 402 A.2d at 1068. “[0]nce the relator has been arrested under the authority of a valid governor’s warrant, the legality or illegality of the prior extradition proceedings becomes moot.” Id., 266 Pa.Superior Ct. at 45, 402 A.2d at 1069. Harmon was rearrested on July 3, 1986. The legality of that arrest hinges solely on the validity of the warrant pursuant to which he was arrested at that time. His complaint that this warrant should have been served prior to June 30, 1986 is an impermissible attempt to challenge the prior proceedings.

Appellant argues that his situation is controlled by Commonwealth ex rel. Coffman v. Aytch, 238 Pa.Super. 584, 361 A.2d 652 (1976). We disagree. In Coffman, a petitioner was held for ten months before the Commonwealth produced a governor’s warrant. This court ruled that the detention was illegal and production of the warrant did not constitute a “rearrest” because the petitioner had been continuously in custody without ever being discharged. Id., 238 Pa.Superior Ct. at 587, 361 A.2d at 654. However, as long as a fugitive has first been discharged, he may be rearrested pursuant to a valid warrant. Id. Harmon was discharged and rearrested and therefore, Coffman is inapplicable to his case.

Harmon’s contention that the warrant is invalid is likewise without merit. The warrant specifies that the crimes in question were committed on a continuous basis from October 24, 1983 to September 1, 1985. The warrant also states that Harmon was present in New York State during this time period.

A requisition for extradition is entitled to prima facie validity if it alleges that the subject was present in the demanding state at the time of the alleged commission of the crime. Commonwealth ex rel. Edgar v. Davis, 425 Pa. 133, 228 A.2d 742 (1967). It is the duty of the petitioner to contradict this presumption. If he offers no evidence to rebut the allegation, he is not entitled to habeas corpus. Id., 425 Pa. at 135-36, 228 A.2d at 744.

As the hearing court stated: “He [Harmon] remained tacit on the question of whether he was in New York at the time the crime occurred.” Because Harmon has offered no evidence to contradict its allegations, we must uphold the validity of the governor’s warrant.

Accordingly, the order of the Court of Common Pleas of Chester County is affirmed.


author: MONTEMURO, Judge: CIRILLO, President Judge,

text:
    524 A.2d 908
    Frederick DICKERSON, Appellant, v. BRIND TRUCK LEASING, and Keenan Motors, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1986.
    Filed April 16, 1987.

      William C. Kauffman, Philadelphia, for appellant.
    Diane A. Dichter, Philadelphia, for Brind Truck Leasing, appellee.
    Before CIRILLO, President Judge, and MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

Appellant Frederick Dickerson challenges a grant of summary judgment by the Philadelphia Court of Common Pleas. Because Mr. Dickerson failed to bring his personal injury claims within the applicable two-year period of limitations, 42 Pa.C.S.A. § 5524, we affirm.

The parties agree that Mr. Dickerson suffered injuries after he fell from the back of a truck while attempting to close the truck’s rear door. The parties also agree that this mishap occurred on December 3, 1979. Appellee Brind Truck Leasing does not appear to dispute that it leased the truck in question to Mr. Dickerson’s employer, Fuller Wholesale Meats, Inc.

Mr. Dickerson commenced this action on December 8, 1981 by filing a praecipe for a writ of summons. The summons named Brind Truck Leasing (Brind) and Keenan Motors as defendants. Keenan had sold the ill-fated truck to Brind. In his complaint, Mr. Dickerson alleged that he fell while “in the act of loading and/or unloading the truck” and that he did not discover the resulting injuries until “on or after December 9, 1979.” Mr. Dickerson divided his complaint into two counts, one “in assumpsit” for breach of implied and express warranties and the other “in trespass” for negligence and for distribution of an allegedly “defective” truck. Brind responded with an answer and new matter and a motion for judgment on the pleadings. In its motion, Brind contended that the two-year statute of limitations barred Mr. Dickerson’s action. The trial court denied judgment on the pleadings.

Nonetheless, on November 30, 1983, Mr. Dickerson, now represented by new counsel, sought to amend his complaint to include “allegations ... required to be pleaded, in accordance with the Pennsylvania No-fault Motor Vehicle Insurance Act.” The trial court denied the petition to amend, but gave Mr. Dickerson the right to file another petition that “specifically sets forth the proposed amendments to the complaint.” Mr. Dickerson neither filed another petition nor challenged the denial of the first one. On January 30, 1985, Brind again raised the two-year statute of limitations, this time in a motion for summary judgment. The trial court granted the motion by order of June 21,1984, and this timely appeal followed.

In its opinion, the trial court found that Mr. Dickerson’s cause of action accrued on December 3, 1979, the date of the accident. The court therefore concluded that the two-year statute of limitations for personal injury actions had elapsed before Mr. Dickerson instituted suit on December 8, 1981. Moreover, because appellee Brind had only leased, rather than sold its truck to Fuller Wholesale Meats, Inc., the court refused to apply the Uniform Commercial Code’s four-year period of limitations, 13 Pa.C.S.A. § 2725, to Mr. Dickerson’s breach of warranty claim. On appeal, Mr. Dickerson raises two arguments against the holding of the trial court. First, he contends that the now-repealed Pennsylvania No-fault Motor Vehicle Insurance Act governs his tort claims and that the two-year period of limitations therefore did not begin to run until he knew or should have known that he had crossed one of the No-fault “thresholds.” Second, he maintains that Article Two of the Uniform Commercial Code, 13 Pa.C.S.A. § 2101 et seq., governs his breach of warranty claims and that the trial court therefore should have applied the Code’s four-year period of limitations. We will address these arguments in turn.

Section 301 of the No-fault Act, which was in effect at the time of the mishap in this case, abolished tort liability for injuries that arose “out of the maintenance or use of a motor vehicle.” 40 P.S. § 1009.301(a). This section retained tort liability, however, in certain enumerated circumstances. In particular, a tortfeasor remained liable for “non-economic” injuries that exceeded one of the four “thresholds” set forth in Section 301(a)(5), 40 P.S. § 1009.-301(a)(5). Our supreme court recognized in Bond v. Gallen, 503 Pa. 286, 469 A.2d 556 (1983), that a cause of action for such “non-economic” injuries does not accrue until the victim knows or reasonably should know that his or her injuries meet a No-fault threshold. The court thus established a variant of the “discovery rule” for tort actions governed by the No-fault Act. Generally, the cause of action accrues, and the period of limitations begins to run, on the date of the accident. If on the date of the accident, however, the victim is reasonably unable to discover that he or she has crossed a No-fault “threshold,” the cause of action will not then accrue.

Mr. Dickerson argues that the accident in this case “arose out of the maintenance or use of a motor vehicle” and that the discovery rule of Bond v. Gallen therefore applies to his cause of action. We disagree. Even assuming that Mr. Dickerson suffered injuries while maintaining or using a motor vehicle, he failed to plead a cause of action under the No-fault Act. This court will not plead the cause for him. We acknowledge that Pa.R.C.P. 1019(a) requires the plaintiff to provide only a “concise and summary” statement of the “material facts” that underlie the plaintiff’s claims. Nevertheless, the complaint must notify the defendant of the plaintiff’s claims by stating the grounds upon which those claims rest and by identifying the issues in dispute. See Cassell v. Shellenberger, 356 Pa.Super. 101, 514 A.2d 163 (1986); Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa.Super. 293, 464 A.2d 1349 (1983); Weiss v. Equibank, 313 Pa.Super. 446, 460 A.2d 271 (1983); Smith v. Brown, 283 Pa.Super. 116, 423 A.2d 743 (1980). This notice enables the defendant to prepare a proper and responsive defense. See Cassell v. Shellenberger, supra; Weiss v. Equibank, supra. It also promotes the speedy and inexpensive resolution of disputes. The complaint in this case failed to notify Brind that Mr. Dickerson was asserting a claim under the No-fault Act. In fact, Mr. Dickerson appears to have deliberately avoided pleading such a claim. He alleged in paragraph 5 of his complaint that he was “in the act of loading and/or unloading the truck” at the time of the accident. Section 103 of the Act expressly excludes “conduct in the course of loading or unloading a motor vehicle” from the definition of “maintenance or use of a motor vehicle.” 40 P.S. § 1009.-103. Brind therefore could not have known from reading the complaint that it would have to defend an action governed by No-fault. For the past five years, Brind has focused its entire defense against an apparently ordinary common-law tort claim. The No-fault Act and Bond v. Gallen played no part. We decline to change the course of the litigation this far down stream merely because Mr. Dickerson raised No-fault in his answer to Brind’s motion for summary judgment. Mr. Dickerson could have attempted to amend his complaint to state a claim . under the No-fault Act, but he failed to do so.

Even if Mr. Dickerson somehow did plead a cause of action under the Act, he cannot take advantage of the Bond v. Gallen discovery rule. Section 301(a)(2) of the Act provides that

[a] person in the business of designing, manufacturing, repairing, servicing, or otherwise maintaining motor vehicles remains liable for injury arising out of a defect in such motor vehicle which is caused or not corrected by an act or omission in the course of such business, other than a defect in a motor vehicle which is operated by such business.

40 P.S. § 1009.301(a)(2). This broad exception to the abolition of tort liability enables the motor vehicle accident victim to recover in tort the full measure of his or her loss against persons who manufacture, repair, service or otherwise maintain motor vehicles, regardless of the No-fault monetary thresholds. See West American Ins. Co. v. Oberding, 305 Pa.Super. 55, 451 A.2d 239 (1982). The General Assembly thus sought to deter the manufacture and distribution of dangerously defective products by preserving without qualification the right to bring product liability actions. See Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975); West American Ins. Co. v. Oberding, supra. Because Mr. Dickerson seeks to hold Brind liable for leasing a defective truck, his claim falls squarely within the category of actions defined by Section 301(a)(2). His injuries therefore did not have to exceed one of the No-fault thresholds before he could file suit. In Bond v. Gallen, of course, our supreme court addressed only those cases to which the thresholds applied. The court sought to avoid the “Catch-22” that would have arisen if the period of limitations began to run on tort claims that had not yet ripened under the No-fault Act. See Bond v. Gallen, supra 503 Pa. at 289, 469 A.2d at 558. In the present case, on the other hand, Mr. Dickerson’s product liability claim arose on December 3, 1979, the day the alleged defect in the truck caused him to fall.

Mr. Dickerson also argues that the trial court should have applied the Uniform Commercial Code’s four-year period of limitations, 13 Pa.C.S.A. § 2725(a), to his breach of warranty claim against Brind. Although his argument on appeal is unclear, Mr. Dickerson apparently believes that Keenan Motors made express and implied warranties when it sold the truck in question to Brind. These warranties, according to Mr. Dickerson “followed” the truck “through the stream of commerce” and in the process somehow bound not only Keenan, the seller, but also Brind, the buyer. Mr. Dickerson therefore maintains that he, as third-party beneficiary of the warranties, can hold Brind liable for breach under the Commercial Code. We must disagree. A seller’s warranties will not bind the buyer in an action for breach brought by an injured third party beneficiary. Mr. Dickerson thus cannot take advantage of the Commercial Code’s four-year period of limitations.

We recognize that the concept of “privity” has no place in modern sales warranty law and that a seller’s warranties protect a broad class of beneficiaries other than the buyer. See Williams v. West Penn Power Co., 502 Pa. 557, 467 A.2d 811 (1983); Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974). The warranties that Keenan gave to Brind, if any, very well could have traveled “through the stream of commerce” to protect Mr. Dickerson. If so, then Keenan, not Brind, must account for the breach. Express and implied warranties under the Commercial Code are of course seller’s warranties. A buyer, as such, does not warrant the quality, merchantibility or fitness of the goods he or she purchases. To hold otherwise would offend the plain meaning and obvious design of the Code’s warranty provisions, 13 Pa.C.S.A. §§ 2313 to 2318.

We need not consider whether Brind made warranties of its own when it leased the truck to Mr. Dickerson’s employer. The trial court reasoned that Article Two of the Uniform Commercial Code applies by its own terms to “sales” only and that a “lease” is not a “sale” within the meaning of the Code. The court therefore concluded that the Code, with its four-year period of limitations, does not govern Mr. Dickerson’s breach of warranty claim against Brind. In his brief on appeal, Mr. Dickerson appears to agree that the lease alone would not support a breach of warranty claim against Brind under the Code. His argument in favor of applying the Code rests entirely upon the express or implied warranties that might have arisen when Keenan sold the truck to Brind. We have already disposed of this reasoning, and we will not construct an alternative argument that the appellant has failed to pursue on appeal, see Giant Markets, Inc. v. Sigma Marketing Systems, Inc., 313 Pa. Super. 115, 459 A.2d 765 (1983).

For the foregoing reasons, we affirm the order of the trial court granting summary judgment in favor of appellee, Brind Truck Leasing.

Order affirmed.

CIRILLO, President Judge, files a concurring opinion.

CIRILLO, President Judge,

concurring:

I concur in the result reached by the majority. I agree with my learned colleague that Mr. Dickerson may not take advantage of the discovery rule recognized by the Bond Court. His cause of action for distribution of a defective product is covered by 40 P.S. § 1009.301(a)(2). The period of limitations on the plaintiffs claim began to run when he was injured. The statute was not tolled until Dickerson reached the no-fault threshold. Therefore, his claim was barred by the statute of limitations. Because this issue is dispositive of the trespass claim, I believe that any further discussion concerning difficult questions of statutory interpretation is unwise and unnecessary.

Mr. Dickerson’s claim for breach of warranty may likewise be disposed of in a more restrictive manner. It is unnecessary for us to determine whether a “lease” constitutes a “sale” under the Pennsylvania version of the Uniform Commercial Code. On appeal, Dickerson has argued that he is a third party beneficiary of the warranties given by Keenan to Brind. However, as my colleague aptly notes, any warranty which might exist binds only Keenan, the seller, not Brind, the buyer. Because this appeal is from Brind’s motion for summary judgment, any discussion of Keenan’s liability is irrelevant dicta. Therefore, we have no call to reach the novel issue as to whether a lease is equivalent to a sale in Pennsylvania under the warranty provisions of the U.C.C.

Accordingly, I concur in the result.

      . The relevant statute requires a party to commence within two years any action "to recover damages for injuries to the person ... caused by the wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S.A. § 5524(2). We cannot determine whether Brind wanted the court to apply this provision to the breach of warranty claim as well as the negligence and strict liability claims.

      . No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 179, repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), eff. October 1, 1984.

      . Section 103 of the No-fault Act provides in part that “[mjaintenance or use of a motor vehicle does not include ... conduct in the course of loading or unloading a motor vehicle unless the conduct occurs while occupying, entering into, or alighting jrom it." 40 P.S. § 1009.-103 (emphasis supplied). Mr. Dickerson now alleges that he was standing on the back of the truck at the time of the accident. He therefore argues that he was "occupying” a motor vehicle within the meaning of Section 103. This allegation and argument, however, appear for the first time in Mr. Dickerson’s memorandum of law in opposition to Brind’s motion for summary judgment. In the complaint, Mr. Dickerson alleged only that he was loading or unloading the truck at the time of the accident.

      . Mr. Dickerson himself admits in his answer to the motion for summary judgment that his former counsel "failed to present plaintiff s No-fault claim.” Although Mr. Dickerson’s present counsel petitioned to amend the defective complaint, counsel for unexplained reasons failed to furnish the information that the court requested concerning the contents of the proposed amendments.

      . We decided Bond on October 16, 1981, see Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981) (en banc), and the supreme court affirmed on December 30, 1983, see Bond v. Gallen, 503 Pa. 286, 469 A.2d 556 (1983).

      . All suppliers of defective products, including lessors, are potentially liable for defects in the product when the defect injures the ultimate user. See Nath v. National Equipment Leasing Corp., 497 Pa. 126, 439 A.2d 633 (1981); Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977); Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615 (1983).

      . At the time of Mr. Dickerson’s accident, the original version of the Uniform Commercial Code was in effect in this Commonwealth, see Act of April 6, 1953, P.L. 3, No. 1, repealed by Act of November 1, 1970, P.L. 255, No. 86, 58, eff. January 1, 1980. Although the current version of the Code contains some minor revisions, the new limitations provision, 13 Pa.C.S.A. § 2725(a), mirrors the former provision almost exactly. We therefore will cite to the current, consolidated statute version of this provision to avoid confusion.

      . The codified versions of these provisions are almost identical to those which were in effect at the time of Mr. Dickerson’s accident, see Act of April 6, 1953, P.L. 3, No. 1; §§ 2-313 to 2-318, repealed by Act of November 1, 1979, P.L. 255, No. 86, § 8, eff. January 1, 1980. Again we cite to the current version to avoid confusion.

      . The Code defines "sale” as “the passing of title from the seller to the buyer for a price.” 13 Pa.C.S.A. § 2106(a). We note, however, that some courts have examined the realities of the transaction to determine whether the purported “lease” is actually a “sale.” See, e.g., Barco Auto Leasing Corp. v. PSI Cosmetics, Inc., 125 Misc.2d 68, 478 N.Y.S.2d 505 (N.Y.Civ.Ct.1984); Chatlos Systems, Inc. v. National Cash Register Corp., 479 F.Supp. 738 (D.N.J.1979). Other courts have determined outright that Article 2 of the Uniform Commercial Code applies to leases as such. See, e.g., Xerox Corp. v. Hawkes, 124 N.H. 610, 475 A.2d 7 (1984). See generally Anno., 4 A.L.R. 4th 85 (1981).