text:
    505 A.2d 303
    Stephen P. LINEBAUGH, Esquire, Personal Representative of the Estate of Charles N. Snyder, Jr., Deceased, and Cynthia M. Snyder, Individually v. George H. LEHR. Appeal of Cynthia M. SNYDER.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed Feb. 20, 1986.

      John Thompson, Jr., York, for appellant.
    George F. Douglas, Jr., Carlisle, for appellee.
    Before WIEAND, OLSZEWSKI and WATKINS, JJ.
   WIEAND, Judge:

Charles N. Snyder, Jr. was killed when the bicycle on which he was riding was struck by an automobile operated by George H. Lehr. Stephen P. Linebaugh, Esquire, the personal representative of the decedent’s estate, together with Cynthia M. Snyder, the decedent’s widow, filed a three count complaint asserting wrongful death and survival actions and a separate cause of action on behalf of the widow for loss of consortium. State Farm Mutual Automobile Insurance Co., which had written a policy of liability insurance for the Lehr vehicle with limits of $25,000 per person and $50,000 per accident, undertook the defense of the action. The insurer subsequently acknowledged liability and offered policy limits of $25,000 to settle the wrongful death and survival actions. This offer was accepted, and the settlement was approved by the court. The widow, however, insisted that she had a separate and independent claim for loss of consortium. A petition for declaratory judgment, therefore, was filed by the insurer to obtain an adjudication regarding any possible liability it might have on a separate claim by the widow for loss of consortium. The trial court held that the widow did not have a separate claim for loss of consortium and dismissed her claim. Mrs. Snyder appealed. We affirm.

“Pennsylvania courts have long held that an action for loss of consortium is derivative [of the injured spouse’s claim].” Scattaregia v. Shin Shen Wu, 343 Pa.Super. 452, 455, 495 A.2d 552, 553 (1985). See: Winner v. Oakland Township, 158 Pa. 405, 27 A. 1110 (1893); Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855 (1973), aff'd, 457 Pa. 90, 320 A.2d 139 (1974); Little v. Jarvis, 219 Pa.Super. 156, 280 A.2d 617 (1971); Elser v. Union Paving Co., 167 Pa.Super. 62, 74 A.2d 529 (1950). See also: Klein v. Council of Chemical Associations, 587 F.Supp. 213 (E.D.Pa. 1984). Recently, in the course of determining whether a spouse’s damages for loss of consortium should be reduced by the percentage of comparative negligence attributed to the injured spouse, this Court characterized a claim for loss of consortium as follows:

“The consortium claim and the personal injury claim are closely interconnected; together, they represent the total, compensable damages — direct and indirect — suffered as a result of the principal plaintiff’s injury____ The consortium plaintiff ... has suffered no direct injury____ Her right to recover is derived, both in a literal and legal sense, from the injury suffered by her spouse.”

Scattaregia v. Shin Shen Wu, supra, 343 Pa.Superior Ct. at 455-456, 495 A.2d at 553-554, quoting Maidman v. Stagg, 82 A.D.2d 299, 304, 441 N.Y.S.2d 711, 715 (1981).

In the instant case, appellant does not dispute the principle that a loss of consortium claim is derivative in the sense that it may be denied or reduced on the basis of an injured or deceased spouse’s contributory negligence. She argues, however, that she is “a second, unwilling victim” and should be able to institute suit in her own right, independent of the wrongful death and survival actions brought by the personal representative of her deceased husband’s estate. See: Brief for Appellant at 6. There is no merit in this argument.

The purpose of the Wrongful Death Statute, 42 Pa. C.S. § 8301, is to compensate “the decedent’s survivors for the pecuniary losses they have sustained as a result of the decedent’s death____ This includes the value of the services the victim would have rendered to his family if he had lived.” Slaseman v. Myers, 309 Pa.Super. 537, 545, 455 A.2d 1213, 1218 (1983). A wrongful death action does not compensate the decedent; it compensates the survivors for damages which they have sustained as a result of the decedent’s death. See: Dennick v. Scheiwer, 381 Pa. 200, 201, 113 A.2d 318, 319 (1955).

Under the wrongful death act the widow or family is entitled, in addition to costs, to compensation for the loss of the contributions decedent would have made for such items as shelter, food, clothing, medical care, education, entertainment, gifts and recreation. The widow is also entitled to the pecuniary value of the services, society and comfort she would have received from the decedent.

Slaseman v. Myers, supra 309 Pa.Super. at 549, 455 A.2d at 1220 (emphasis added), citing Spangler v. Helm’s New York-Pittsburgh Motor Express, 396 Pa. 482, 485, 153 A.2d 490, 492 (1959). See: Altamuro v. Milner Hotel, Inc., 540 F.Supp. 870 (E.D.Pa.1982). It is clear, therefore, that recovery in a wrongful death action includes damages for the loss of the decedent’s society, which is also the essential nature of a claim for loss of consortium. To allow a surviving spouse to maintain a separate cause of action for loss of consortium in addition to the action brought on behalf of the deceased spouse under the wrongful death statute would permit a double recovery for the same death.

We hold, therefore, that a surviving spouse cannot maintain a separate cause of action for loss of consortium resulting from the death of a spouse but must instead recover damages for loss of the deceased spouse’s society in an action for wrongful death. In the instant case the wrongful death and survival actions were settled for policy limits with the approval of the court. The surviving spouse’s additional claim for loss of consortium, therefore, was properly dismissed.

Judgment affirmed.

      . It was determined that, except for his interest in the policy of insurance, the tortfeasor was judgment-proof.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    505 A.2d 305
    Walter L. DRUMHELLER, Franklin W. Drumheller and Betty Jean Armbruster, Executors of the Estate of Elizabeth P. Rothman, Deceased, Appellants, v. David MARCELLO, Administrator of the Estate of Sidney J. Rothman, Deceased, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed Feb. 20, 1986.

      Michael Edridge, Palmerton, for appellants.
    John R. Mondschein, Allentown, for appellee.
    Before WIEAND, OLSZEWSKI and WATKINS, JJ.
   WIEAND, Judge:

Does a wife’s death at the hands of her husband, who then takes his own life, cause the abatement of a claim for equitable distribution in a pending divorce action? The trial court held that the claim had been aborted by the death of the parties and granted a motion to dismiss the divorce action. We affirm the order dismissing the causes of action for divorce and equitable distribution. However, the abatement of these causes of action does not prevent recovery on a pending claim for counsel fees if the deceased wife’s estate is otherwise entitled thereto.

Sidney J. Rothman and Elizabeth P. Rothman were married on February 13, 1969. No children were born of this union. However, both spouses were survived by children of prior marriages. On April 28, 1983, Elizabeth commenced an action in divorce against Sidney in which she sought, in addition to a decree in divorce, an equitable distribution of marital property. The complaint also contained a request for counsel fees. On December 10, 1983, Sidney filed an answer and counterclaim. Pursuant to court order thereafter entered, Elizabeth was permitted to occupy the parties’ condominium in Pompano Beach, Florida, from February 15, 1984 to April 1, 1984. Shortly after she entered the condominium on February 15th, Elizabeth was shot and killed by Sidney who had been waiting for her inside the condominium. Sidney then turned the gun on himself and took his own life.

Walter L. Drumheller, Franklin W. Drumheller, and Betty Jean Armbruster, children of Elizabeth by a prior marriage, were appointed executors of Elizabeth’s estate and were substituted as party plaintiffs in the divorce action. David Marcello was appointed administrator of Sidney’s estate and was subsequently substituted as defendant in the divorce action. On July 11, 1984, a motion was filed to dismiss the divorce and all ancillary claims. The motion was granted on January 15, 1985. This appeal by the executors of Elizabeth’s estate followed.

“[Pjending divorce actions are abated by the death of one of the parties.” Haviland v. Haviland, 333 Pa.Super. 162, 163, 481 A.2d 1355, 1356 (1984). See also: Segars v. Brooks, 248 Ga. 427, 284 S.E.2d 13 (1981); Howsden v. Rolenc, 219 Neb. 16, 360 N.W.2d 680 (1985); Jacobson v. Jacobson, 146 N.J.Super. 491, 370 A.2d 65 (1976). This Court has made it clear that “[ujnless and until a valid decree in divorce has been entered, there can be no equitable distribution of marital property.” Laxton v. Laxton, 345 Pa.Super. 450, 455, 498 A.2d 909, 912 (1985). See also: Dech v. Dech, 342 Pa.Super. 17, 492 A.2d 41 (1985); Mandia v. Mandia, 341 Pa.Super. 116, 491 A.2d 177 (1985). Accord: Bacchetta v. Bacchetta, 498 Pa. 227, 235, 445 A.2d 1194, 1198 (1982) (“equitable distribution of property acquired during the marriage occurs only upon divorce ... ”). Cf. Pastuszek v. Pastuszek, 346 Pa.Super. 416, 499 A.2d 1069 (1985) (death of one party prior to determination of ancillary matters did not abate ancillary matters where decree in divorce had been entered and was no longer subject to modification); Hall v. Hall, 333 Pa.Super. 483, 482 A.2d 974 (1984) (death of one party while direct appeal from entry of divorce decree was pending did not cause divorce action to be abated).

At the time Elizabeth was killed, a decree in divorce had not been entered. The divorce action, therefore, abated upon her death. Elizabeth’s claim for equitable distribution was also abated by death. There can be no equitable distribution of marital property except upon the entry of a decree in divorce.

Appellants argue that to allow the claim for equitable distribution to abate will enable Sidney to benefit by his own wrong. They suggest that Section 401(c) of the Divorce Code, which vests broad equitable powers in a court having jurisdiction over an action in divorce, should be interpreted to authorize a court to make equitable distribution under the facts of this case. We reject this argument.

The broad powers vested in a divorce court by Section 401(c) were to be exercised to “effectuate the purposes of [the Divorce Code].” The power of a court to distribute marital property exists only in the context of a divorce action. Indeed, “ ‘marital property’ does not survive death. If a party to a pending dissolution proceeding dies, there is nothing left upon which the court’s jurisdiction can operate.” 24 Am.Jur.2d Divorce and Separation § 877 (1983). Neither Section 401(c) nor any other portion of the Divorce Code was intended to preserve the power of a court to distribute property to or among the heirs of a spouse who has died before a divorce has been decreed. The Divorce Code was not designed to distribute property of a deceased spouse.

With respect to property owned at the time of death by one spouse who has been killed by the other spouse, the rights of the decedent’s heirs are determined by the Slayers Act, 20 Pa.C.S. § 8801 et seq. With respect to such a factual scenario, the Divorce Code is silent. The property of spouses after one of them has died is no longer marital property and cannot be distributed by a court in which an action of divorce is pending but not decided.

An award of counsel fees, however, does not depend upon the granting of a decree in divorce. Campana v. Campana, 186 Pa.Super. 472, 142 A.2d 169 (1958). Such an award is based upon the need of one party and the ability of the other to pay. Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984), rev’d on other grounds, 509 Pa. 282, 502 A.2d 109 (1985). The death of a party to a divorce does not necessarily extinguish the need for an award of counsel fees. The estate of a deceased party may nevertheless remain liable to an attorney for services which have been rendered in the divorce action. In an appropriate case, therefore, a court may award counsel fees even after the divorce action has abated because one of the parties has died. See: Fulton v. Fulton, 204 N.J.Super. 544, 499 A.2d 542 (1985). Contra: Louthian & Merritt, P.A. v. Davis, 272 S.C. 330, 251 S.E.2d 757 (1979). Such an order is not precluded by any provision of the Divorce Code.

The order dismissing the causes of action for divorce and equitable distribution is affirmed, without prejudice, however, to the right of the appellant estate to pursue a claim for counsel fees.

      . 23 P.S. § 401(c).

      . Act of April 2, 1980, P.L. 63, 23 P.S. § 101 et seq.


text:
    505 A.2d 308
    Louis A. ORLANDO and Alice C. Orlando, husband and wife, Appellants, v. HERCO, INC.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1985.
    Filed Feb. 20, 1986.

      David L. Lutz, Harrisburg, for appellants.
    Roger T. Shoop, Harrisburg, for appellee.
    Before WIEAND, OLSZEWSKI and WATKINS, JJ.
   WIEAND, Judge:

Louis A. Orlando purchased and consumed shrimp creole in the dining room of the Hotel Hershey. Later, on the same evening, he experienced stomach cramps, nausea, sweating, vomiting, diarrhea and a general weakness. Orlando and his wife brought an action to recover damages against Herco, Inc., the owner and operator of the Hotel Hershey. The complaint contained a count in trespass based upon alleged negligence in the preparation of food and a count in assumpsit for breach of an implied warranty of merchantability, i.e., that the food was fit for human consumption. Immediately prior to trial, however, Orlando’s counsel informed the trial court that he would proceed only on the claim for breach of warranty. He requested that the court exclude any and all evidence pertaining to the purchase of ingredients and the manner of preparing shrimp creole served on the night of his illness. Because the negligence count had been withdrawn, Orlando argued, the exercise of care in preparing the food was irrelevant. Orlando also requested the trial court to exclude evidence that shrimp creole had been consumed without complaint by other guests of the hotel on the same evening. The trial court refused to grant Orlando’s motion to exclude this evidence, and the jury which tried the case returned a verdict for the defendant. A motion for new trial was denied, and judgment was entered on the verdict. Orlando appealed. We affirm.

Orlando contends that the trial court erred when it permitted Herco to introduce evidence that the shrimp creole had been carefully prepared. Specifically, he complains about testimony given by Celester Deimler, Jr., the hotel’s food controller, and Heinz Hautle, the chef. Deimler testified to quality control procedures followed in ordering, storing and inspecting food prior to preparation and sale to guests of the hotel. He said that on the evening on which Orlando had been a guest of the hotel, his inspection of the ingredients used in preparing the shrimp creole had detected no imperfections. Hautle testified about food preparation in general and about the procedure which had been followed in preparing the shrimp creole from which Orlando had eaten.

In an action based on breach of an implied warranty of merchantability, the “seller may be held liable irrespective of the existence or absence of negligence on his part, and it is not necessary that his negligence, if any, be shown.” 63 Am.Jur.2d Products Liability § 456. “[T]he concern of both § 402A [of the Restatement (Second) of Torts] and warranty law is with the fitness of the product, not the conduct of the producer as measured by due care.” MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 391, 257 A.2d 676, 680 (1969). See also: Vlases v. Montgomery Ward & Co., 377 F.2d 846 (3d Cir.1967); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). If it is unnecessary to establish negligence in order to recover for breach of warranty, it does not follow that evidence showing the absence of a defect is inadmissible merely because it also tends to show that due care was exercised in the product’s preparation or manufacture.

In the instant case, Orlando was required to show a food product that was unfit for human consumption and, therefore, unmerchantable. He was not required to show that the shrimp creole which he had eaten was unmerchantable because of Herco’s negligence. In defense, Herco could show that its food product was not defective. In order to accomplish this, Herco could show the nature of the ingredients used, the manner in which the ingredients were stored to preserve their wholesomeness, the inspections made prior to use, and the manner in which the shrimp creole had been prepared on the night when appellant consumed it. This evidence was relevant to show that the food consumed by Orlando was fit for human consumption and merchantable. Its relevancy was not impaired merely because it also tended to show that Herco had exercised due care in ordering, inspecting and preserving the ingredients and in preparing the food product consumed by Orlando.

This interpretation is confirmed by the Uniform Commercial Code Comment appearing at 13 Pa.C.S. § 2314, where it is stated as follows:

In an action based on breach of warranty, it is of course necessary to show not only the existence of the warranty but the fact that the warranty was broken____ [Evidence indicating that the seller exercised care in the manufacture, processing, or selection of the goods is relevant to the issue of whether the warranty was in fact broken.

U.C.C. § 2-314 comment 13, reprinted in 13 Pa.C.S. § 2314 Uniform Commercial Code Comment (emphasis added).

In the instant case, the evidence that Herco had exercised due care in preparing the food product sold to Orlando at the Hotel Hershey was relevant to show that the shrimp creole was in fact merchantable and fit for human consumption. Without evidence pertaining to the purchase, storage and inspection of the ingredients and the preparation of the shrimp creole, Herco would have had no way of defending the charge that it had breached an implied warranty of merchantability with respect to the shrimp creole which it had sold to Orlando. The trial court’s allowance of this evidence was not error.

It is also argued that the trial court committed error when it allowed evidence that on the same evening on which Orlando became ill, twenty other guests had ordered shrimp creole and had not complained of illness. It is correct, as appellant argues, that the issue for determination by the jury was whether the portion served to Orlando was unmerchantable and not whether the shrimp creole sold to other guests was defective. Nevertheless, the fact that all other shrimp creole sold that evening, prepared at the same time and using common ingredients, was found to be fit for human consumption was a relevant fact for the jury to consider. Although not conclusive with respect to the wholesomeness of the shrimp creole sold to Orlando, it could be considered and weighed by the jury.

The decision in Vaccarezza v. Sanguinetti, 71 Cal.App.2d 687, 163 P.2d 470 (1945), cited by appellant, supports this rule. There the plaintiffs had become ill after eating salami and coppe purchased from the defendants. At trial, defendants introduced evidence that the lab tests performed on the unconsumed portions of the sticks of salami and coppe purchased by plaintiffs revealed no trichinella infection. The court held that this evidence did not conclusively establish that the meat consumed by plaintiffs had not been infested, because it was possible for only a portion of the stick to be infested. Nevertheless, the Court said, “The fact that the remainder of the salami and the coppe were free of the larvae, while of some evidentiary weight, was not conclusive. It was a factor to be weighed____” Id. at 696, 163 P.2d at 475 (emphasis added). We agree with this analysis. Herco’s evidence regarding the absence of complaints from other patrons who had ordered shrimp creole, while not conclusive that the food sold to Orlando was merchantable, was a relevant fact to be considered by the jury. The trial court did not err in receiving it.

Orlando’s final argument pertains to the jury instructions delivered by the trial court. The court erred, he argues, when it instructed the jury that it might consider “evidence of ‘due care’ and [should] determine whether the batch of shrimp prepared, rather than the individual portion served Plaintiff, was contaminated.” Brief for Appellant at 3 (emphasis in brief). The record discloses, however, that appellant failed to object to these portions of the trial court’s jury instructions. Consequently, they have been waived. See: Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982); Crosbie v. Westinghouse Elevator Co., 297 Pa.Super. 304, 443 A.2d 849 (1982).

Judgment affirmed.

      . Orlando’s wife joined in the complaint and alleged that she had suffered loss of consortium and had incurred expenses in seeking aid for her husband as a result of the incident. Because her claim is derivative of that of her husband, see: Scattaregia v. Shin Shen Wu, 343 Pa.Super. 452, 495 A.2d 552 (1985); Klein v. Council of Chemical Associations, 587 F.Supp. 213 (E.D.Pa.1984), we will confine our discussion to the claim of Louis Orlando as the primary plaintiff in this action.

      . See: 13 Pa.C.S. § 2314.


author: CIRILLO, Judge: JOHNSON, Judge,

text:
    505 A.2d 310
    COMMONWEALTH of Pennsylvania v. Lawrence M. SPEAKS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1985.
    Filed Feb. 21, 1986.

      Lawrence A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
    Katherene E. Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence imposed by the Court of Common Pleas of Dauphin County. Following a non-jury trial, Lawrence Speaks, appellant, was found guilty of possession with intent to deliver marijuana. 35 P.S. § 780-113(a)(30). Appellant was sentenced to pay the cost of the proceedings, a fine of $300.00, and to be imprisoned in the county prison for not less than one month nor more than six months.

The evidence produced at trial revealed that a Detective Teel, accompanied by five other officers, arrived at a residence for the purpose of executing a search warrant for narcotics. Appellant and two unidentified persons were inside the premises at the time. After knocking on the door, the officers identified themselves as police and advised appellant that they had a search warrant. Upon gaining entry to the premises, Officer Teel read appellant the contents of the warrant, advised him of his Miranda rights and questioned him as to whether he understood those rights. Appellant responded in the affirmative to this question and was then immediately asked if there was any marijuana in the house. Appellant answered yes and indicated that the marijuana was located in the living room closet. A search of the closet yielded six bags of marijuana. After these items were discovered, appellant was searched and a bag of marijuana was found in his pocket. The police also seized $240.00 in currency from the premises, including marked bills that Officer Teel had given to an informant the previous day for the purpose of a controlled buy.

Appellant raises a number of issues on appeal: 1) whether the suppression court erred in ruling that appellant validly waived his Miranda rights; 2) whether the suppression court erred in refusing to suppress the marijuana seized from appellant’s person; 3) whether the evidence presented was sufficient as a matter of law to sustain a guilty verdict; and 4) whether the trial court erred in denying appellant’s request seeking disclosure of the identity and whereabouts of the informant who participated in the controlled buy. We find no merit in any of the issues raised by appellant and we therefore affirm.

Initially, appellant contends the suppression court erred in ruling that he validly waived his Miranda rights. After a careful review of the record, we conclude that appellant explicitly waived his Miranda rights as required by Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979), and the suppression court did not err in so holding.

In reviewing an order denying a motion to suppress, our function is to determine whether the factual findings of the suppression court are supported by the record. Commonwealth v. Scatena, 332 Pa.Super. 415, 481 A.2d 855 (1984); Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984). There is credible evidence of record that Speaks explicitly waived his Miranda rights.

In Commonwealth v. Bussey, supra, the Supreme Court held that a waiver of Miranda rights must be explicit in order to be effective in Pennsylvania. In defining explicit waiver, the Bussey Court stated that it “mean[t] an outward manifestation of a waiver such as an oral, written or physical manifestation.” Bussey, 486 Pa. at 230 n. 11, 404 A.2d at 1314 n. 11. Additionally, the Court asserted that by requiring an explicit waiver of Miranda, it “d[id] not mean to imply [that] an express waiver for each and every right [was] necessary.” Id., 486 Pa. at 231 n. 12, 404 A.2d at 1314, 1309 n. 12.

Under the facts of the case sub judice, it is apparent that appellant’s waiver of his Miranda rights complied with the requirements promulgated in Bussey. After reading appellant the contents of the search warrant and giving him his Miranda warnings, Officer Teel specifically asked appellant if he understood the Miranda rights. Appellant answered in the affirmative and only then did Officer Teel question him as to whether there was any marijuana in the house. In response to this question, appellant indicated to the officer that there was marijuana in the living room closet on the first floor. Appellant’s unequivocal recital of his understanding of these rights combined with his response to the aforementioned question clearly constituted an explicit waiver of his Miranda rights.

The Bussey Court succintly and unambiguously defined an explicit waiver as “an outward manifestation of a waiver such as an oral, written or physical manifestation.” Bussey, 486 Pa. at 230 n. 11, 404 A.2d at 1314 n. 11. Appellant’s statement that he understood his rights followed immediately by his incriminatory answer to the officer’s question was tantamount to a physical manifestation of his present intent to waive his rights. Such a physical manifestation qualifies as an explicit waiver under the definition provided by the Bussey Court. While such statements as “I want to talk,” or ‘T waive my rights,” easily satisfy the requirements of Bussey, these assertions are not the sole means by which an accused may explicitly waive his rights.

By requiring an express waiver of Miranda rights, the Bussey Court hoped to limit the number of cases in which the ultimate finding of a waiver depended upon the multitude of manifestations which occur between an expression of understanding by an accused and his giving a statement. The time lapse between the reading of Miranda rights and the accused’s incriminating statement was a significant consideration for the Bussey Court in determining whether a waiver was explicit.

In Bussey, there was a delay of a quarter of an hour between the reading of the Miranda warnings and the accused’s decision to make a statement. Additionally, Bussey did not specifically acknowledge his understanding of the rights when they were read to him. At the particular time that the accused incriminated himself, he again did not acknowledge his understanding of his Miranda rights nor indicate that he waived such rights.

The instant case is distinguishable on this very point. Officer Teel read appellant his rights, appellant indicated his understanding of these rights and he immediately thereafter answered the officer’s question in an incriminating manner. The time span between the warnings, the expression of understanding and the giving of the statement was minimal, a matter of one or two minutes. No consideration need be given to Speaks’ actions or thoughts occurring between his expression of understanding and his giving of a statement; they occurred almost simultaneously. The suppression court could determine with certainty that appellant waived his rights without delving into what was going on in the accused’s mind at the time he incriminated himself.

Appellant’s reliance on Commonwealth v. Nixon, 288 Pa.Super. 78, 431 A.2d 296 (1981), is misplaced. In Nixon, appellant was read his Miranda rights and was then asked if he understood them and if, keeping them in mind, he wished to talk. Appellant never answered these questions. He merely started to answer general background inquiries. Obviously, appellant in Nixon never explicitly waived his rights — there was no outward manifestation of a waiver either orally, physically, or in writing.

Once again, this case is easily distinguishable. Not only was appellant warned of his Miranda rights but the officer expressly asked him if he understood these rights. Speaks did not merely start answering questions but explicitly stated that he understood his Miranda rights, which include the right to remain silent.

The Bussey standard is difficult to apply because the Court “did not elaborate on what constitutes an explicit waiver.” Nixon, 288 Pa.Super. at 82, 431 A.2d at 297. Therefore, the Court must be careful not to extend Bussey beyond its intended scope. Bussey did not hold that for a waiver to be deemed explicit an accused must state “I want to talk,” or “I waive my rights.” For our Court to now so require would broaden Bussey well beyond its original intended purview.

Even if the suppression court erred in ruling that appellant validly waived his Miranda rights, it was harmless error.

The doctrine of harmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt. Its purpose is premised on the well-settled proposition that “[a] defendant is entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593.

Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981).

The evidence pertaining to the discovery of the marijuana was properly admitted at appellant’s trial on the ground that it would ultimately or inevitably have been discovered even if no violation of any constitutional provision had taken place. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). In Nix, the Court stated that “the exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” Id. 467 U.S. at 446, at 389, 104 S.Ct. at 2510.

In the present case, Officer Teel arrived at appellant’s residence armed with a valid search warrant. The warrant enabled Teel to search the residence for “marijuana, cocaine, heroin, all drug related paraphernalia, drug records, and proceeds from drug sales.” The marijuana discovered would have been uncovered by the police regardless of Speaks’ statement. Even if Teel’s failure to ask Speaks if he wanted to talk or waive his rights constituted error, the evidence in question would inevitably have been discovered without reference to such error. “In [this] situation, the State has gained no advantage at trial and [Speaks] has suffered no prejudice.” Nix, 467 U.S. at 447, 104 S.Ct. at 2511, 81 L.Ed.2d at 390. As the Court stated in Nix, “suppression, in these circumstances, would do nothing whatever to promote the integrity of the trial process, but would inflict a wholly unacceptable burden on the administration of criminal justice.” Nix, 467 U.S. at 447, 104 S.Ct. at 2511, 81 L.Ed.2d at 389. For these reasons, we find that appellant’s waiver of his Miranda rights was valid.

Additionally, appellant alleges the suppression court committed error when it refused to suppress the marijuana seized from his person. Appellant was searched after he led police to the marijuana in the living room closet. Under these circumstances, we are compelled to hold that the search of appellant’s person was reasonable. Appellant answered the door when the police arrived and told the officers where the marijuana was located and led the officers to the marijuana. At that point, the police had probable cause to arrest appellant for illegal possession of marijuana. The police found him in constructive possession of an amount of marijuana which was twice the amount the legislature has deemed a small amount. 35 P.S. § 780-113(a)(31).

Appellant contends that the search was illegal because it was not a search incident to a lawful arrest. The fact that he was not formally arrested until after the search is irrelevant. The time of the formal arrest is not controlling, but rather the point at which “appellant could reasonably assume that he was under arrest.” Commonwealth v. Crissy, 304 Pa.Super. 38, 42, 450 A.2d 89, 91 (1982). The police had read appellant his Miranda rights, located a sizeable quantity of marijuana under appellant’s direction and searched appellant subsequent to the discovery of the marijuana. These factors were sufficient to lead appellant “to believe that the officer had subjected [appellant] to his actual control and will.” Crissy, 304 Pa.Super. at 42, 450 A.2d at 91.

Appellant’s reliance on Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980) is misplaced. In the case sub judice, police searched appellant only after he led them to the marijuana. The discovery of this contraband and appellant’s knowledge of its whereabouts was sufficient to establish probable cause to arrest him. Accordingly, the search incident to the arrest was proper and the lower court did not err when it refused to suppress the marijuana seized from Speaks’ person.

Appellant also argues that the evidence presented at trial was insufficient to sustain the verdict of guilty. More specifically, he contends that the Commonwealth failed to prove possession with intent to deliver. The test for determining whether the evidence presented is sufficient to support the verdict is well-established.

The test for sufficiency of the evidence in a criminal case is whether, viewing all of the evidence admitted at trial in a light most favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Tribble, 502 Pa. 619, 620, 467 A.2d 1130, 1131 (1983). Accord Commonwealth v. Smith, 333 Pa.Super. 155, 481 A.2d 1352 (1984); Commonwealth v. Leatherbury, 322 Pa.Super. 222, 469 A.2d 263 (1983).

In the case sub judice, the evidence clearly demonstrated appellant’s possession of marijuana and his intent to deliver. The evidence presented at trial revealed that six bags of marijuana (65.5 grams in all) were discovered in the living room closet. The prosecution was required to demonstrate that appellant possessed the power to control the contraband and the intent to exercise that control, i.e., constructive possession. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). Appellant’s constructive possession of the marijuana in the closet may be inferred from the totality of the circumstances. Commonwealth v. Macolino, supra; Commonwealth v. Thompson, 286 Pa.Super. 31, 428 A.2d 223 (1981). Appellant’s possession may also be established by circumstantial evidence. Commonwealth v. Bentley, 276 Pa.Super. 41, 419 A.2d 85 (1980).

We hold that the Commonwealth’s evidence in this case sufficiently demonstrated beyond a reasonable doubt that appellant had constructive possession of the marijuana and the intent to deliver it. The evidence clearly demonstrated that appellant had access to the contraband, the power to control it, and the requisite intent to exercise control over it. Commonwealth v. Gilchrist, 255 Pa.Super. 252, 386 A.2d 603 (1978). Additionally, the Commonwealth established that there were six bags stored in the living room closet containing 63.5 grams of marijuana; appellant admitted that the contents of the bags belonged to him; a search of the premises revealed the presence of packaging materials commonly used in the sale of marijuana; a controlled buy occurred within forty-eight hours of the execution of the search warrant; the marked bills used in the controlled buy were recovered in the search of the premises; and appellant was present at the time of the controlled buy. Taken together, these facts clearly support the trier of fact’s finding that appellant not only was in possession of the marijuana, but did so with the intent to deliver.

Appellant’s final issue concerns the question of whether the trial court properly denied appellant’s motion for disclosure of the confidential informant. In determining whether a particular case favors disclosure, we must consider the crime charged, the possible defenses and the significance of the testimony. Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967); Commonwealth v. Davis, 318 Pa.Super. 507, 465 A.2d 669 (1983). However, our fundamental concern is fairness. “The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Carter, 427 Pa. at 59, 233 A.2d at 287 (quoting Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 627-28, 1 L.Ed.2d 639 (1957)).

Appellant contends that the identity of the informant must be disclosed and that the informant must testify regarding the controlled buy. We cannot accept these contentions. In Carter, the Supreme Court adopted the qualified privilege rule with respect to disclosure of confidential informants. This privilege permits the Commonwealth “to refrain from disclosing the identity of an informer” and “limits the prosecution’s duty to make available to the defense the names and whereabouts of all material eyewitnesses.” Carter, 427 Pa. at 55-56, 233 A.2d at 285. There is no fixed rule as to when the privilege is applicable.

In this case, appellant merely asserts that the identity of the informant would aid his defense. This claim is insufficient to outweigh the public’s interest in protecting the flow of information from informants to the police. Commonwealth v. Herron, 475 Pa. 461, 380 A.2d 1228 (1977); Commonwealth v. Fleck, 324 Pa.Super. 227, 471 A.2d 547 (1984); Commonwealth v. Dorsey, 266 Pa.Super. 442, 405 A.2d 516 (1979). Appellant failed to demonstrate that there was a “reasonable possibility that the informant could give testimony that would tend to exonerate [appellant] so that it would be unfair to withhold it.” Fleck, 324 Pa.Super. at 235, 471 A.2d at 550.

Judgment of sentence affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I agree with the majority that Appellant waived his Miranda rights. However, I believe that this waiver was implicit, and not explicit, as is required by the Pennsylvania Supreme Court in Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979). Accordingly, I dissent and I would reverse the judgment of sentence and remand for a new trial.

The Bussey court defined explicit waiver as “an outward manifestation of a waiver such as an oral, written or physical manifestation” Id., 486 Pa. at 230 n. 11, 404 A.2d at 1314 n. 11. Bussey discussed the United States Supreme Court case of North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), saying that:

the United States Supreme Court held an implicit waiver of rights could be found where an accused expresses understanding of his rights and gives a statement without expressly waiving his rights. We could distinguish the instant case on the basis that Bussey never expressed an understanding of his rights prior to incriminating himself at 1:45 a.m., but we decline to do so and we decline to follow North Carolina v. Butler, supra.

Bussey, 486 Pa. at 230, 404 A.2d at 1314. Thus, our supreme court made it clear that a waiver, which consists of an expression of understanding of rights plus an inculpatory statement, does not qualify as an explicit waiver. Id. It may be enough to constitute an implicit waiver, but is insufficient to effectively waive appellant’s Miranda rights applying Pennsylvania state law.

The explicit waiver requirement is discussed in Commonwealth v. Nixon, 288 Pa.Super. 78, 431 A.2d 296 (1981). In Nixon, a panel of our Court stated:

As mentioned previously, appellant was read his Miranda rights and was then asked if he understood them and if, keeping them in mind, he wished to talk. Since appellant did not answer this question, and instead merely proceeded to respond to general background inquiries, we cannot say that an explicit waiver has occurred. Indeed, this particular set of facts is strongly indicative of an implicit waiver, rather than an explicit one. Certainly, there was no “outward manifestation of a waiver,” such as an affirmative response to the question regarding appellant’s desire to speak despite his right not to (i.e. an oral “yes” or a physical nod). And, as already noted, the available forms for a written waiver were not used. Hence, we are unable to say that an explicit, Bussey- type waiver took place during the subject interrogation.

Id., 288 Pa.Superior Ct. at 82, 431 A.2d at 298. The Bussey decision was reached after appellant Nixon had filed his appeal. The Nixon court refused to apply Bussey retroactively, and affirmed the judgment of sentence. However, the reasoning of the Nixon court and the interpretation the Nixon court gives to Bussey is in keeping with the mandate of our supreme court in Bussey. A different interpretation, in my view, renders the requirement of an explicit waiver meaningless.

As noted by the court in Nixon, a physical manifestation of waiver would exist where an appellant nods his head in answer to a question regarding appellant’s desire to speak. Nixon, supra. It is not a physical manifestation of explicit waiver for an appellant to merely respond to the substantive police question and thereby incriminate himself. An immediate inculpatory response may indicate an implicit waiver, but certainly not an explicit one. The fact that appellant acknowledged that he understood his rights does not mean that he also waived them. It is a logical inference to say that when an appellant responds to substantive police questions he is waiving his right to remain silent, etc. However, the thrust of Bussey is that Pennsylvania courts are not to draw inferences that a waiver exists; rather, they are to look for an explicit waiver. To equate an inculpatory response by an appellant with an explicit waiver is to render the word “explicit” meaningless surplusage.

The majority distinguishes Bussey, in part, based on the fact that in Bussey there was a delay of a quarter of an hour between the reading of the Miranda warnings and the accused’s statement. The majority notes that appellant Speaks’ expression of understanding and his giving of a statement occurred almost simultaneously. I find this to be all the more indicative of a lack of explicit waiver. Our supreme court stated in Bussey that “by our ruling, we seek to promote a deliberate and conscious decision before any statement is given. Common sense teaches persons often speak before they think.” Bussey, supra, 486 Pa. at 231 n. 14, 404 A.2d at 1314 n. 14 (emphasis in original). Such was the case sub judice. To find that an explicit waiver exists under the facts before us ignores the purpose and express language of Bussey. Given my position on this issue, I would not reach the other issues raised by appellant.


author: LIPEZ, Judge:

text:
    505 A.2d 317
    COMMONWEALTH of Pennsylvania, v. Joseph GIUGLIANO, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Feb. 25, 1986.

      Isadore E. Krasno, Pottsville, for appellant.
    Richard C. Lengler, Harrisburg, for Commonwealth, appellee.
    Before CAVANAUGH, CERCONE and LIPEZ, JJ.
   LIPEZ, Judge:

Defendant, the secretary-treasurer of Cheryl Ann, Inc., was convicted of forty-two counts of the summary offense of failure to pay wages due to employees of Cheryl Ann, Inc., under section 3(a) of the Wage Payment and Collection Law (WPCL). 43 P.S. § 260.3(a) (Supp.1985). Defendant was sentenced to pay fines totalling $4200, and ordered to pay court costs. On appeal, a panel of this court vacated the sentence and remanded so that defendant could have an opportunity to file post-verdict motions. Commonwealth, Department of Labor and Industry v. Giugliano, 318 Pa.Super.Ct. 32, 464 A.2d 503 (1983). On remand, defendant’s post-verdict motions were denied, the sentence was reimposed, and defendant took this appeal. Because we agree with defendant that the evidence failed to establish beyond a reasonable doubt that defendant was within the class of persons who can be held criminally liable under the WPCL, we reverse the judgment of sentence and discharge the defendant.

The problems presented by the issue in this case primarily involve statutory construction. We must first clarify which sections of the WPCL can serve as the basis for criminal liability when the employer is a corporation. The opinion of the court below agrees with the Commonwealth that there are two separate bases for finding defendant criminally liable under the WPCL. The first of these involves subsection (b) of the criminal penalties section, which provides in pertinent part that “any employer who violates any provision of this act shall be guilty of a summary offense.” 43 P.S. § 260.11a(b) (Supp.1985). The Commonwealth contends that the term “employer” is defined for purposes of this subsection by the definitions section of the WPCL, which provides:

The following words and phrases when used in this act shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:
“Employer. ” Includes every person, firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth.

43 P.S. § 260.2a (Supp.1985). The Commonwealth argues that defendant fell within the phrase “agent or officer.”

The other statutory basis for defendant’s criminal liability claimed by the Commonwealth is 43 P.S. § 260.11a(c), which provides:

(c) Where such employer is a corporation, the president, secretary, treasurer or officers exercising corresponding functions shall each be guilty of such summary offense.

It is clear that anyone who comes within the phrase “the president, secretary, treasurer or officers exercising corresponding functions” in subsection 260.11a(c) would necessarily fall within the much broader phrase “agent or officer” in the general definition of “Employer” in section 260.2a. Subsection 260.11a(c) would therefore be completely unnecessary if section 260.2a’s broad definition of “Employer” to include every “agent or officer” were applied to corporate employers under subsection 260.11a(c).

We do not believe there is any conflict between subsection 260.11a(c) and section 260.2a, because the introductory clause to section 260.2a states that its definitions apply “unless the context clearly indicates otherwise.” We hold that the specific rule for corporate employers in subsection 260.11a(c) clearly indicates that the “agent or officer” portion of the “Employer” definition in section 260.2a is not to be applied to subsection 260.11a(b) when the employer is a corporation. This is because the class defined by subsection 260.11a(c), “the president, secretary, treasurer or officers exercising corresponding functions,” adds nothing to the phrase “agent or officer.” The legislature could not have intended subsection 260.11a(c) to have no effect. See 1 Pa.C.S. § 1922(2). Since we hold that subsection 260.11a(c) is the exclusive basis for criminal liability of officers of corporate employers under the WPCL, we need not examine the sufficiency of the evidence to determine whether it established that defendant was an “agent or officer,” but only whether it established that he fell within the phrase “the president, secretary, treasurer or officers exercising corresponding functions.”

The relevant facts are not in dispute. When Cheryl Ann, Inc. was incorporated on March 28, 1978, defendant was named as secretary-treasurer and Mrs. June Morrison was named as president. Cheryl Ann, Inc. was in the sewing business and had two plants, one in Port Carbon and one in Shamokin Dam. The company owned no assets, but leased its buildings and equipment from another company, called Shiro.

Defendant was the full-time manager of the Shamokin Dam plant for Cheryl Ann, Inc. In this capacity, he supervised the operations of the Shamokin Dam plant, but had no relationship at all with the plant in Port Carbon. For his work as manager of the Shamokin Dam plant, defendant was paid, like all other employees of Cheryl Ann, Inc., by a bi-weekly check signed by Mrs. Morrison, the president of the company.

Defendant was never paid any separate compensation for being secretary-treasurer, and there is no evidence that he ever performed the functions of a corporate secretary or treasurer. The Commonwealth’s argument that defendant did function as secretary-treasurer rests entirely on the fact that around January, 1979, defendant began to sign payroll checks for the Shamokin Dam plant only. It is clear, however, that this was because the company had run into financial difficulties and was unable to meet its payroll, so defendant borrowed money personally in order to continue meeting the payroll. Only defendant himself, and not the company, was obligated on these loans, and the money was kept not merely in a separate account, but in a separate bank, from the account which the company had previously used for meeting the payroll. This money eventually ran out, and as a result, the Shamokin Dam plant employees were not paid for the period ending March 16, 1979, giving rise to the charges in this case.

Although Mrs. Morrison, the Commonwealth’s chief witness, answered “Yes” when the prosecutor asked her whether defendant had been signing the checks since January in his capacity as secretary-treasurer, this was a bald legal conclusion unsupported by even a factual allegation. Indeed, the clearest indication that defendant was not functioning as secretary or treasurer of the corporation comes out of Mrs. Morrison’s own testimony that at about the time the payroll was missed in March, 1979, the Shamokin Dam plant was shut down and defendant was locked out on orders of Mrs. Morrison’s husband, who was nominally not even an officer of Cheryl Ann, Inc.

It is thus clear that although defendant held the title of secretary-treasurer of Cheryl Ann, Inc., he never exercised the functions of either secretary or treasurer. We must therefore reject the Commonwealth’s argument that defendant did exercise those functions as a basis of liability under subsection 260.11a(c). The Commonwealth, however, argues in the alternative that the phrase “the president, secretary, treasurer or officers exercising corresponding functions” in subsection 260.11a(c) includes a defendant who holds merely the title, but does not exercise the functions, of the office of corporate president, secretary or treasurer. We reject this argument also.

We believe that if the legislature had intended those who hold merely the title to be liable, it would have used “and” rather than “or” to connect the phrase “the president, secretary, treasurer” to the phrase “officers exercising corresponding functions.” By making those who exercise the functions an alternative, rather than an addition, to those who have the titles, the legislature clearly implies that there are some circumstances in which those who have the title might not be liable, and those circumstances occur when those who have the title are not performing any of the functions.

In resolving a problem of statutory construction of the word “or,” a panel of this court quoted an opinion of our Supreme Court, which had stated, “ ‘Or’ obviously is a disjunctive particle and means one or the other of two propositions; never both.” Commonwealth v. Bretz, 289 Pa.Super.Ct. 259, 264, 433 A.2d 55, 58 (1981), quoting Marnell v. Mount Carmel Joint School System and Joint School Committee, 380 Pa. 83, 88, 110 A.2d 357, 360-61 (1955); cf. Bensalem Township School District v. Bucks County Commissioners, 8 Pa.Commw.Ct. 411, 421-22, 303 A.2d 258, 265 (1973). Applying this rule to this case would be conclusive in favor of the defendant.

We note, however, that our Supreme Court on occasion has qualified the strict terms of the rule:

“Or” in its ordinary usage and meaning clearly and undoubtedly means “or”. “Or’ can only be construed to mean “and” when to give the word “or” its ordinary meaning would be to produce a result that is absurd or impossible of execution or highly unreasonable or would manifestly change or nullify the intention of the legislative body.

Garratt v. Philadelphia, 387 Pa. 442, 445, 127 A.2d 738, 740 (1956); accord, Commonwealth ex rel. Specter v. Vignola, 446 Pa. 1, 5, 285 A.2d 869, 871 (1971); compare 30 Words and Phrases 66-98 (1972) with id. at 98-108, 111— 133. Here it is plain that none of the stated qualifications applies, and hence “or” should be given its normal disjunctive meaning. This result is consistent not only with the express language of what appears to be a carefully drafted section of the statute, but also with the general principle of strict construction of penal statutes. 1 Pa.C.S. § 1928(b)(1). We hold that the correct interpretation of 43 P.S. § 260.-lla(c) (Supp.1985) is that the president, secretary, and treasurer of the corporate employer can only be criminally liable if they exercise at least some functions of their offices; otherwise, only those officers exercising those functions can be held liable. Since defendant held only the title of secretary-treasurer, but exercised no functions of either office, he must be discharged.

Judgment of sentence reversed, and defendant is discharged.

      . The Wage Payment and Collection Law is the Act of July 14, 1961, P.L. 637, §§ 1 etseq., 43 P.S. §§ 260.1 etseq. (1964). A comprehensive set of amendments to the Law was passed in the Act of July 14, 1977, P.L. 82, No. 30, §§ 1 et seq. The amended sections appear at 43 P.S. §§ 260.2a et seq. (Supp.1985). Both the 1961 Act and the 1977 Act differ in the manner of section numbering from the codification in the Purdon's Pocket Part. To reduce confusion, the Purdon’s Pocket Part section numbers will be used throughout this opinion, with the lone exception of the reference to section 2(1) of the 1961 Act in footnote 3, infra.

      . This disposition makes it unnecessary to decide defendant’s other contentions: (1) that we should "pierce the corporate veil” and find that Cheryl Ann, Inc., of which defendant was secretary-treasurer, was a mere instrumentality or alter ego of another corporation, Shiro, of which defendant was not an officer, and hence Shiro was the true employer under the WPCL and defendant could not be liable; and (2) defendant was denied equal protection by the Commonwealth’s decision to continue prosecuting defendant, while dismissing the same charges against Mrs. June Morrison, the president of Cheryl Ann, Inc.

      . If there were a conflict, the Statutory Construction Act would require that it be resolved in favor of the specific definition for corporate employers in subsection 260.11a(c), under the rule that the particular controls the general. 1 Pa.C.S. § 1933. Moreover, because subsection 260.11a(c) was first put into the WPCL with the amendments of July 14, 1977, while section 260.2a’s definition of "Employer" simply reenacts the definition in section 2(1) of the original WPCL passed in 1961, 43 P.S. § 260.2(1), the controlling effect of subsection 260.1 la(c) in the event of conflict is also supported by the rule that the section last in order of date or position shall prevail. 1 Pa.C.S. § 1934.

      . Defendant testified that his motive in borrowing the money was to save the jobs of the workers at the Shamokin Dam plant. This testimony, of course, could have been rejected by the trial judge as fact-finder, but we have no need to rely on it, because defendant’s motive is irrelevant, so long as there is no evidence that he acted as the secretary or treasurer of the company.

      . The record is not clear as to how Mrs. Morrison’s husband was able to order the plant shut down and have defendant locked out, although it appears to be related to his control of Shiro, the company of which defendant claims Cheryl Ann, Inc. is the mere instrumentality or alter ego. See note 2, supra. No determination of this factual matter is needed, since it relates only to the "piercing the corporate veil” issue which, as we stated in note 2, it is unnecessary to decide.

      . Cases could arise in which the functions of the president, secretary and treasurer are shared by officers with and without the appropriate titles. In such cases, each could be held criminally liable. It might be asked how this squares with our disjunctive interpretation of "or" to mean that either "the president, secretary, treasurer” or "officers exercising corresponding functions” can be liable. The answer is that in such cases, the officers liable would be only those that fell within the latter phrase, which because it refers to "officers” rather than "other officers," would encompass all those exercising the functions, whether or not they held the title of president, secretary or treasurer.


author: WICKERSHAM, Judge:

text:
    505 A.2d 321
    COMMONWEALTH of Pennsylvania v. Lee GREEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1985.
    Filed Feb. 25, 1986.

      Spero T. Lappas, Harrisburg, for appellant.
    Katherene E. Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Com., appellee.

      Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   WICKERSHAM, Judge:

Lee Green files this direct appeal from the judgment of sentence imposed upon him by the Court of Common Pleas of Dauphin County following his murder conviction.

On the evening of October 10, 1983, Michael Bollinger was shot to death at the corner of Susquehanna and Clinton Streets in the City of Harrisburg. He had left his place of employment earlier in the evening, stopped to visit his girlfriend for a short while, and was walking to his residence a few blocks away. An autopsy performed two days later revealed that he died as a result of a single gunshot wound to the head. There were apparently no eyewitnesses to the murder.

Ten days after the shooting, the police arrested William Pew, who implicated himself and a Marcel Everson in Bollinger’s murder. Subsequently, William Pew changed his story and stated that the other person involved was appellant, Lee Green, and not Mr. Everson. Appellant’s involvement in the murder being corroborated by two other sources, he was arrested on October 26, 1983 and taken in for questioning. After being advised of his rights, and of the fact that Pew was in custody, he made a statement admitting his participation in the robbery which led to the shooting death of the victim. The gist of the statement was that on the night of the murder, he had met Pew on Market Street, where they discussed robbing someone. Appellant borrowed a gun, and gave it to Pew. They went “uptown,” saw the victim walking down an alley and began chasing him. Pew caught up with him first and when appellant arrived, Pew had the victim standing against the wall on Clinton Street. Appellant bent over to pick up a dollar bill which was laying on the ground. When Pew asked the victim if he had any more money, he said no, whereupon Pew shot him in the head. Appellant and Pew fled from the scene.

On October 27, 1983, the police recovered the gun that had been loaned to appellant on the date of the murder. Subsequent testing proved it to be the gun from which the fatal shot was fired.

Appellant was charged with murder, robbery, criminal conspiracy, and unlawful carrying of firearms, and was ordered to stand trial with William Pew, who was similarly charged. Appellant’s motion to suppress his inculpatory statement was denied, following a hearing on January 13, 1984; however, a motion to sever his trial from Pew’s was granted. After a jury trial on March 12-14 of 1984, appellant was convicted of murder in the second degree, robbery, criminal conspiracy, and unlawful carrying of firearms. Post-trial motions were filed and denied and on July 10, 1984, appellant was sentenced to life imprisonment on the murder conviction, a concurrent term of ten (10) to twenty (20) years on the robbery conviction, a consecutive term of two and one-half (2V2) to five (5) years on the firearms conviction, and a term of five (5) to ten (10) years on the conspiracy conviction, the last sentence being consecutive to the first three. Appellant’s motion to modify sentence was denied on July 30, 1984, and his timely appeal followed.

Appellant raises five issues on appeal:

1. Did the lower court err in denying [appellant’s] motion to suppress statements?
2. Did the lower court err in allowing, at [appellant’s] trial for murder, testimony that [appellant] was involved in an unrelated conspiracy to commit robbery?
3. Did the lower court err in allowing [appellant] to be impeached at trial by his suppression hearing testimony?
4. Was [appellant’s] right to be free from double jeopardy violated when, after being sentenced and taken from the courtroom, he was returned to the courtroom to be given a more severe sentence?
5. Are the convictions against the evidence, or against the weight of the evidence?

Brief for Appellant at 2.

After careful consideration of the record, the briefs of the parties, and the relevant caselaw, we have concluded that issues 1, 3, and 5 were correctly and adequately addressed by the September 24, 1984 opinion of the Honorable Warren G. Morgan. We see no need to discuss them further.

Appellant argues that the trial court erred in admitting testimony during the trial that appellant was involved in a later conspiracy to rob a convenience store. Specifically, part of appellant’s written statement to the police contained the following exchange, which was admitted into evidence at trial:

Q. Did you ask Pew why he shot the man?
A. Yeah. He said so the dude couldn’t identify him.
Q. Did you after that go to the AM-PM Mini Mart at 17th and Derry?
A. We walked to the crossroads, me, him, and about two more people. There was a whole lot of peoples with us.
Q. How many shots did Pew fire that night?
A. One. That’s all I know of. We was down at the AM-PM and I couldn’t find him. And then I went back to 14th and Regina and we couldn’t find him. And we went back to the AM-PM again, when I seen Pew again.
Q. I thought you still had the gun. Explain that statement.
sjc * Jft # * *
A. Pew gave me the gun back. Then he wanted to rob the AM-PM and I gave the gun back to him. Then later on at the AM-PM, I got it back from him.
Q. Did Pew rob the AM-PM store?
A. No. He said there was too many people there.

N.T., Trial, at 104-05.

Appellant objected to this testimony on the ground that the statement involved evidence of an unrelated robbery.

Where the trial court has admitted evidence of other crimes committed by a defendant and his cofelon(s), our scope of review is whether the trial court abused its discretion in allowing the admission of such evidence. Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977); Commonwealth v. Middleton, 320 Pa.Super. 533, 467 A.2d 841 (1983) .

The general rule, of course, prohibits testimony regarding unrelated criminal acts of the accused. Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984); Commonwealth v. Reiss, 503 Pa. 45, 468 A.2d 451 (1983); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984) ; Commonwealth v. Shealey, 324 Pa.Super. 56, 471 A.2d 459 (1984). There are, however, special circumstances justifying exceptions to the general rule: for example, when the evidence of other criminal acts tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; (5) the identity of the person charged with the commission of the crime on trial; or (6) that the evidence is part of the same transaction as the case on trial. Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080 (1985); Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984); Commonwealth v. Thomas, 328 Pa.Super. 393, 477 A.2d 501 (1984); Commonwealth v. Shealey, supra; Commonwealth v. Boyd, 315 Pa.Super. 308, 461 A.2d 1294 (1983). Even if one of these exceptions applies, however, the trial court must balance the need for the evidence against its potential prejudice in order to determine its admissibility. Commonwealth v. Ulatoski, supra; Commonwealth v. Shirey, supra; Commonwealth v. Middleton, supra.

The lower court admitted the contested testimony as evidence going to show appellant’s state of mind. “Evidence of an unrelated crime is admissible to show state of mind only when it is so close in time to the alleged offense as to have bearing upon [the accused’s] state of mind at that time.” Commonwealth v. Martinez, 301 Pa.Super. 121, 127, 447 A.2d 272, 275 (1982). (quotations omitted). While we recognize that evidence of subsequent offenses is less strongly probative of intent than prior offenses since it does not establish that a defendant possessed the requisite intent prior to the commission of the crime being tried, id., we nonetheless agree with the lower court that the testimony admitted went to show the state of mind or intent of appellant at the time the victim was killed.

At trial, appellant denied that he and Mr. Pew had formulated a plan to rob someone, or that he had obtained the gun for purpose of robbing someone. In effect, appellant testified that he was an unwitting bystander, who just happened to be in Pew’s company, when Pew suddenly held up the victim and shot him. Furthermore, appellant stated at trial that after he ran from the site of the murder, he did not see Pew later at the AM-PM store, or anywhere else until the next day. Obviously this testimony was in direct conflict with appellant’s inculpatory statement made at the time of his arrest, and subsequently admitted at trial.

The testimony concerning the planned robbery of the AM-PM store took place close in time and space to the slaying of the victim. The same weapon was involved. The same persons were involved.

Because the testimony is relevant to events close in time and place to the shooting of [the victim], it tends to demonstrate the appellant’s criminal intent with regard to the shooting. Moreover, the testimony shows the appellant’s continued association with [Pew] and participation in further criminal acts that evening. As such it tends to rebut the appellant’s assertion that he lacked the necessary state of mind to establish second degree murder____

Commonwealth v. Middleton, supra, 320 Pa. at 550-51, 467 A.2d at 849-50. See also Commonwealth v. Styles, 494 Pa. 524, 431 A.2d 978 (1981); Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980); Commonwealth v. Evans, 460 Pa. 313, 333 A.2d 743 (1975); Commonwealth v. Barnhart, 290 Pa.Super. 182, 434 A.2d 191 (1981). We cannot say that the lower court abused its discretion in admitting the statement concerning the AM-PM store.

Appellant also argues that he was placed in double jeopardy when the court returned him to the courtroom, after sentencing, and increased his sentence. After examining the notes of testimony at sentencing, we do not think that appellant’s interpretation of what occurred at sentencing is correct.

The sentencing court first ordered that appellant undergo imprisonment for life on the murder conviction. Next, appellant received a ten (10) to twenty (20) year sentence on the robbery conviction, this sentence to be served concurrently with the murder sentence. Then, appellant was sentenced to two and one half (2V2) to five (5) years on the firearms conviction, this sentence to be served consecutively to the murder and robbery sentences. The final sentence handed down by the court was a five (5) to ten (10) year prison térm on the conspiracy conviction, this sentence to also be served consecutively to the murder and robbery sentences.

While the court did indicate that the conspiracy sentence would run consecutively to the murder sentence and the robbery sentence, it failed to indicate whether the conspiracy sentence was to run consecutively to or concurrently with the firearms sentence. Apparently, realizing that the sentence as imposed could have been subject to two interpretations, the District Attorney inquired as follows:

MR. STEWART: Your Honor, just so I am clear, the Court has sentenced this defendant to a term of life, and concurrent to that a ten to twenty-year term on the robbery; that he has sentenced the defendant to a consecutive term, then, of seven and a half to fifteen years?
THE COURT: That is correct. That should be indicated that the consecutive term is seven and a half to fifteen years.

N.T., Sentencing, at 9-10.

Obviously the seven and one-half to fifteen year figure is the sum of the sentences on the firearms and conspiracy convictions. It seems clear to us that the court intended from the start of sentencing that the conspiracy sentence was intended to run consecutively to the murder, robbery, and firearms sentences.

After the sentencing colloquy was completed, the sentencing court apparently perceived a need for further clarification of the “seven and a half to fifteen year” statement above, so appellant, his counsel, and the district attorney were called back to the bar to ensure that the court’s statement of its sentence previously imposed was clear. This clarification, which occurred a mere fourteen minutes later, is the basis for appellant’s claim that his guarantee against double jeopardy was violated:

THE COURT: All right. Just stand at the bar. Do you have the informations there?
I have recalled the defendant to the bar, and he is standing in the presence of his counsel, Mr. Lappas, and the district attorney, Mr. Stewart, to ensure that our statement of our sentence previously imposed is clear; and namely, that the sentence imposed to 2321 Criminal Docket 1983, on a charge of conspiracy, shall be served consecutively to the sentence imposed on the firearms charge at 2267(a) CD 1983, Count Two. That should take care of it.
MR. STEWART: That’s fine, Your Honor.
THE COURT: We have already indicated that with the consecutive sentences, that the minimum sentence shall be seven and a half years and the maximum shall be fifteen.
MR. LAPPAS: Your Honor, I feel constraint [sic] to state for the record that that was not the way I understood the originally announced sentences of the Court on the non-homicide charges.
THE COURT: Well, I don’t see how you could have understood it otherwise, because Mr. Stewart put the question to me very directly as to whether or not the consecutive sentences represented a minimum of seven and a half and a maximum of fifteen. The only thing that I hadn’t recalled having stated specifically was in my sentence of 2321 CD 1983, that it was consecutive to the second count in 2267(a). Is there anything further?
MR. STEWART: Well, it was consecutive to that count, is that correct? I mean, I thought I understood the Court to be imposing a life sentence, and the robbery to run concurrently, that the firearms was to run consecutive to the life and robbery, and that the conspiracy charge was to run consecutive to the firearms charge.
THE COURT: That is precisely what I intended. I think "that’s what I stated. All right. I don’t think it requires anything further.

N.T., Sentencing, at 11-12.

It again seems clear to us that appellant’s sentence was never modified, let alone increased. Therefore, we find appellant’s argument that his double jeopardy rights were violated to be meritless.

Although we find appellant’s various contentions to be meritless, we cannot affirm the judgment of sentence as it now stands. Appellant was sentenced to concurrent terms of imprisonment of life for murder and ten to twenty years for robbery, followed by consecutive terms of two and one-half to five years for unlawful carrying of firearms and five to ten years for conspiracy. Based upon our review of the relevant case law, we are constrained to hold that appellant cannot be sentenced for both robbery and murder in the second degree. Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981); Commonwealth v. Thomas, 335 Pa.Super. 323, 484 A.2d 155 (1984); Commonwealth v. Gillespie, 333 Pa.Super. 576, 482 A.2d 1023 (1984); Commonwealth v. Hairston, 323 Pa.Super. 449, 470 A.2d 1004 (1984) (Per Johnson, J., with one Judge concurring in the result); Commonwealth v. Ruffin, 317 Pa.Super. 126, 463 A.2d 1117 (1983); Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982); Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982). See also Commonwealth v. McDuffie, 499 Pa. 325, 453 A.2d 331 (1982); Commonwealth v. Colon, 496 Pa. 650, 437 A.2d 1228 (1981).

Because appellant’s sentence of life imprisonment for murder in the second degree is mandatory and because appellant was sentenced to the maximum terms available under the sentencing code for his convictions for conspiracy and possession of an instrument of crime, it is clear that the concurrent sentence of five to ten years for robbery did not affect the length of the other sentences imposed upon appellant. Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984); Commonwealth v. Ruffin, supra. Therefore, we need not remand but will instead vacate the sentence imposed upon appellant for robbery.

Judgment of sentence for murder in the second degree, conspiracy, and possession of an instrument of crime is affirmed. The separate sentence for robbery is vacated.

      . Subsequent to appellant’s trial, his co-defendant, William Pew, pled guilty to first degree murder on April 2, 1984. He was subsequently sentenced, under Dauphin County 2271, 2271(a), 2322 C.D. 1983, to life imprisonment, plus a total of 22-45 years on the remaining convictions. An appeal from a denial of his P.C.H.A. petition is currently pending before a different panel of our court at 297 Harrisburg 1985.

      . Issues 1, 2, 3, and 5 were properly preserved by their inclusion in appellant’s post-trial motions. Issue 4 was properly preserved in appellant’s motion to modify sentence.

      . Even were we to find that the admission of the testimony concerning the planned robbery of the AM-PM store was error, "where this court is convinced beyond a reasonable doubt that the error did not contribute to the verdict, we may hold that reversal is not required because the error was harmless.” Commonwealth v. Green, 315 Pa.Super. 564, 576-77, 462 A.2d 736, 742 (1983). In the instant case, the jury could reasonably infer that appellant had been involved in another attempted crime, but that inference was rendered harmless in light of the overwhelming evidence of appellant’s guilt, in particular his confession, presented by the Commonwealth. Id. See also Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

      . Even if we agreed that the court modified appellant’s sentence, given the immediacy of the "change” and the fact that the sentence as recorded shows the conspiracy conviction to be consecutive to both the murder and robbery convictions and the firearms conviction, we would find no violation of appellant’s double jeopardy rights. See, e.g., Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983); Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985); Commonwealth v. Fleming, 332 Pa.Super. 118, 480 A.2d 1214 (1984); Commonwealth v. Gallagher, 296 Pa.Super. 382, 442 A.2d 820 (1982).

      . It is well settled that the illegality of sentence is not waivable and may be raised sua sponte by the reviewing court. Commonwealth v. Johnston, 348 Pa.Super. 160, 501 A.2d 1119 (1985); Commonwealth v. Fulton, 315 Pa.Super. 420, 462 A.2d 265 (1983); Commonwealth v. Roach, 307 Pa.Super. 506, 453 A.2d 1001 (1982); Commonwealth v. Gilliam, 302 Pa.Super. 50, 448 A.2d 89 (1982).


text:
    505 A.2d 327
    Raymond I. SHEPLEY, Appellant v. Melinda Baker DOBBIN and Mid Penn Bank, Trustee for Geoffry E. Dobbin, Gregory E. Dobbin and Jeremy A. Dobbin, Minors.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1985.
    Filed Feb. 26, 1986.

      John J. Krafsig, Jr., Harrisburg, for appellant.
    Heath L. Allen, Harrisburg, for appellees.
    Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   WICKERSHAM, Judge:

This is an appeal from a final decree in equity denying appellant, Raymond I. Shepley’s request for a constructive trust or in the alternative, for an accounting.

Appellant, owner in fee simple of two tracts of land in Halifax Township, Dauphin County, Pennsylvania (hereinafter “the Halifax farm”) conveyed the remainder interest in that property to Betty L. Baker, his stepdaughter and Carl E. Baker, her husband on May 1, 1971. Appellant retained a life estate for himself in the property. On the same day, however, appellant entered into a concurrent agreement with the Bakers, which inter alia provided the Bakers with the right to reside on the farm with appellant at their cost and expense. Under the terms of this agreement, the Bakers were also required to furnish appellant with food and laundry service.

Carl E. Baker died on October 17, 1973 and his wife died the following year. After her mother's death, appellee, Melinda Baker Dobbin, appellant’s step-granddaughter orally agreed with appellant, in July 1975, to assume the obligations of her deceased parents. At the same time, with appellant’s consent, appellee and Edward Dobbin,' her husband, acquired the remainder interest of Betty L. Baker in the farm from Mid Penn Bank, executor of Baker’s estate. The Dobbins were divorced in 1978. Appellee remained on the Halifax farm with the three minor children of their marriage: Geoffry E. Dobbin, Gregory E. Dobbin and Jeremy A. Dobbin. On October 25, 1978, appellee and her ex-husband conveyed a one-half interest in the farm to appellee alone and the remaining half interest to Mid Penn Bank as trustee for the three minor children.

On June 25, 1982, appellant filed a complaint in equity, alleging that appellee had been unjustly enriched by receiving the benefits accruing from possession of the Halifax farm without satisfying her concomitant obligations to appellant under the agreement which she had assumed. Appellant also claimed that appellee had converted certain personalty in which he held an interest.

After hearing two days of testimony from a dozen witnesses, the chancellor, The Honorable Clarence C. Morrison, ultimately found that the testimony of appellant was not credible. Lower ct. op., October 4, 1983 at 4. Concluding that appellee had not been unjustly enriched, he dismissed both of appellant’s claims. Id. See Lower ct. op., September 20, 1984 at 3. Appellant duly filed timely exceptions to the decree, which were dismissed by the chancellor who directed that the decree nisi be entered as a final decree. Id.

Appellant presents three issues for our review. We turn now to his first issue and that part of his third issue which contests the conclusiveness of the chancellor’s findings of fact.

It is beyond cavil that the factual conclusions of a chancellor should be accorded great weight. These conclusions have the force of a jury verdict and will be disturbed on appeal only where they are not supported by adequate evidence. Biglan v. Biglan, 330 Pa.Super. 512, 479 A.2d 1021 (1984); Valley Forge Historical Society v. Washington Memorial Chapel, 330 Pa.Super. 494, 479 A.2d 1011 (1984).

Particularly, where as in this instance, the evidence is contradictory, the chancellor’s findings deserve even greater weight, since it is he who must necessarily pass on the credibility of witnesses. Hopkins v. Stepler, 315 Pa.Super. 372, 461 A.2d 1327 (1983). The chancellor’s findings are entitled to special weight in such determinations because he has had the opportunity to hear and observe all the witnesses. Village Beer and Beverage, Inc. v. Vernon D. Cox and Co., Inc., 327 Pa.Super. 99, 475 A.2d 117 (1984); Dudash v. Dudash, 313 Pa.Super. 547, 460 A.2d 323 (1983).

Under our thus closely confined scope of review, we do not find the chancellor’s determination of facts in this case to be so lacking in evidentiary support that his findings should be set aside. See Biglan v. Biglan, supra. On the contrary, there is ample support in the extensive record for his findings, as apparent from both the testimony and the documentary evidence. See Dudash v. Dudash, supra. The fact that the evidence on which the chancellor chose to rely was not uncontroverted does not indicate that he failed to take contradictory evidence into consideration. We therefore dismiss appellant’s claims with respect to the facts as found by the chancellor.

Regarding appellant’s second issue and that part of his third which alleges error by the chancellor as to a matter of law, we remain unpersuaded that the “palpable error” alleged actually occurred. Both issues asserting an error of law appear to be based on the contention that the chancellor erred as a matter of law in basing his findings on credibility. Instead, appellant proposes that the chancellor should have found that a confidential relationship existed between the parties, that this relationship was violated and that therefore, a constructive trust in appellant’s favor should have been imposed on the Halifax farm. We, however, find no error in the chancellor’s failure to apply appellant’s suggested formula when it would have been inappropriate.

First, the premise of appellant’s argument, i.e., that a confidential relationship existed, is not relevant when it was never established that appellant and appellee operated in this capacity. Merely pointing to the step-granddaughter/step-grandfather relationship between the parties or to the disparity in their ages does not suffice to show the existence of a confidential relationship. As we stated in Moreland v. Metrovich, 249 Pa.Super. 88, 95, 375 A.2d 772, 775 (1977):

A plaintiff may establish a confidential relationship as a matter of law or as a matter of fact. As our Supreme Court stated in Truver v. Kennedy, supra, 425 Pa. [294] at 306, 229 A.2d [468] at 474 [1967]: “[A confidential relationship] may exist as a matter of law in certain recognized fiduciary relations, as in the case of trustee and cestui que trust, attorney and client, and guardian and ward. It may also exist as a matter of fact wherever one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on the one side, or weakness, dependence or justifiable trust, on the other.” See also Butler v. Butler, 464 Pa. 522, 347 A.2d 477 (1975); Brunier v. Stanert, 369 Pa. 178, 85 A.2d 130 (1952). The existence of a close family relationship, such as sister to sister, does not per se justify recognition of a confidential relationship. Truver v. Kennedy, supra; Thompson Will, 387 Pa. 82, 126 A.2d 740 (1956); Stewart v. Hooks, 372 Pa. 542, 94 A.2d 756 (1958). Instead, the plaintiff must prove the confidential relationship as a matter of fact. Truver v. Kennedy, supra.

The record simply does not indicate that appellant and appellee stood in a confidential relationship as a matter of fact such as to create unequal dealings.

Second, even were a confidential relationship found to exist, this finding alone would not mandate that a constructive trust be imposed by the chancellor. Appellee, Melinda Baker, faithfully provided or stood ready to provide regular meals and laundry service for appellant. It was not appellee who did not fulfill her obligations under the parties’ agreement but appellant who rendered impossible any promised performance by appellee by choosing to absent himself from the Halifax farm.

Equity will impose a constructive trust under appropriate circumstances. However, our case law is exigent in demanding evidence of unjust enrichment before a trust will be created: See, e.g., Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976); Buchanan v. Brentwood Federal Savings & Loan Association, 457 Pa. 135, 320 A.2d 117 (1974); Pierro v. Pierro, 438 Pa. 119, 264 A.2d 692 (1970). As the chancellor correctly concluded, where he found in this case that no unjust enrichment had occurred which would warrant the imposition of a constructive trust, it was unnecessary for him to consider whether appellant and appellee were in a confidential relationship. This determination would have no effect unless appellee was unfairly advantaged; the chancellor specifically found that she was not.

We therefore hold that the chancellor committed neither abuse of discretion nor error of law and affirm the decree entered below.

      . Specifically, regarding appellant’s rights, the Shepley-Baker agreement provided:
      [Shepley] shall have the right to reside on said premises with [Bakers] for and during the term of his natural life and to occupy the same bedroom together with such bedroom fixtures as he now and has formerly been using and occupying and that he shall be supplied his regular meals at the same table and at the same times with the same food as are enjoyed and eaten by [Bakers], free of any charges or costs____ [Shepley] shall be permitted to live a life of ease and retirement ... [Bakers] agree to provide the usual food, meals and shelter on said premises ... to attend to his laundry needs and generally to strive to make his life as pleasant and enjoyable as possible.
      Shepley-Baker Agreement, May 1, 1971, Plaintiffs Exhibit "A" at 1.

      . These exceptions included all issues presently raised on appeal. See Exceptions to Decree Nisi, filed December 14, 1983.

      . Those issues are as follows:
      A. Can the Chancellor completely ignore established evidence of a confidential relationship and the shifting of the burden of proof, and as the result of the same, thereby deny equitable relief by imposing an erroneous burden of proof on the Appellant?
      B. Did the Chancellor further commit a gross abuse of discretion and commit [a] palpable error of law by failing to impose a constructive trust and grant equitable relief pursuant to Appellate Guidelines mandated by our Appellate Court?
      C. Did the Chancellor’s findings lack evidentiary support and [show] a capricious disbelief of the evidence and constitute a palpable error of law by failing to address the substantial evidence presented by other witnesses than the Appellant?
      Brief for Appellant at 3.