author: POPOVICH, Judge:

text:
    490 A.2d 882
    Christos LAMBAKIS, Appellant, v. Nicholas L. EXAR.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1985.
    Filed March 22, 1985.

      C. Walter Whitmoyer, Jr., Lebanon, for appellant.
    James T. Reilly, Lebanon, for appellee.
    Before POPOVICH, WATKINS and LIPEZ, JJ.
   POPOVICH, Judge:

This is an appeal from an order granting a petition to open judgment. We affirm.

The appellant (Christos Lambakis) and appellee (Nicholas L. Exar) entered into an agreement dated November 1, 1982, whereby the appellant sold to the appellee, for $18,-000, an ongoing business (“Athens Pizza”). In securement of the purchase, the appellee executed a promissory note of even date in favor of the appellant in the amount of $3,000. Also, one of the conditions of the sale was the appellant’s agreement to refrain, for a period of three years, from “competing with the business being sold”.

On March 14, 1983, the appellant filed a complaint alleging that the appellee had defaulted in the payment of the installment due on March 1, 1983, and, as a result, he was exercising his option to “demand that all remaining installments become immediately due and payable.” As a consequence, pursuant to the authority contained in the warrant of attorney, the appellant’s counsel appeared for the appellee and confessed judgment in favor of his client and against the appellee in the amount of $2,625. Additionally, on the date stated, the appellant filed a praecipe for writ of execution with the prothonotary of Lebanon County to levy upon and sell the personalty situated in the business establishment.

In response, counsel for the appellee filed, on March 24, 1983, a petition to open judgment wherein he alleged that, inter alia, no money was due the appellant on the promissory note because he (appellant) had violated the agreement of sale “by entering into another business in competition with the [appellee]”. In the remaining portion of the petition, the appellee raised new matter and a two-count counterclaim.

The reaction of counsel for the appellant was to file preliminary objections in the form of a motion to strike the petition/pleading of the appellee seeking, in part, liquidated damages. His belief was that the procedure followed and the relief sought were not contemplated by the Rules of Civil Procedure (e.g., 2959 & 2960). However, albeit mention of the appellee’s claim for violation of the non-competition clause was made, the appellant neither denied nor admitted the appellee’s assertion of contractual breach.

In a memorandum of law in opposition to the preliminary objections, the appellee wrote that “[t]he counts set forth in the Counterclaim”, which requested affirmative relief, “[we]re not relied upon by [him] in the Request to Open the Confessed Judgment.” Rather, the petition to open rested upon the contention that the appellant contravened the non-competition portion of the agreement to sell “and thus there [was] a failure of consideration relieving [the appellee] of [his] obligation to pay [the appellant] under the note, and thus th[e appellee was] not in default.”

On praecipe by counsel for the appellant, the entire record was certified to the court below for disposition of the preliminary objections.

By order and opinion dated August 1, 1983, the court below opened the judgment entered against the appellee. In doing so, it wrote in its order:

The [appellant] is afforded twenty (20) days from the date of th[e] Order to plead to the Counterclaim included within the [appellee’s] Petition to Open Judgment.
The issues to be presented at trial shall include the claims raised in the [appellant’s] Complaint in Confession of Judgment and the defenses presented by the [appellee] thereto in his Petition to Open Judgment; and the claims raised by the [appellee] in his Counterclaim included within his Petition to Open Judgment and the defenses presented thereto in the [appellant’s] Answer, if any, as provided herein.

Further, in the Opinion prepared by the court below, we have insight as to the manner in which the appellant’s complaints were to be appeased:

The issues in the instant case are framed by the complaint in confession of judgment and the [appellee’s] petition to open that judgment. We are not unmindful, however, that since the matter is now before us on the [appellant’s] preliminary objections to the [appellee’s] petition to open judgment, the [appellant] has not been given an opportunity to respond to the counterclaim which was attached to that petition to open judgment. Having determined it appropriate to open the judgment, we will afford the [appellant] the opportunity to answer the counterclaim in the anticipation that the matter can then proceed to resolution.

Thereafter, this appeal ensued.

Instantly, the appellant argues that the court below erred in opening the judgment before he “had an opportunity to prepare and file an Answer to the Petition to Open Judgment and before the procedure required by Pa.R.C.P. No. 209 [] could be followed.”

We begin our discussion with reference to the factors which the courts of this Commonwealth have looked to, traditionally, in evaluating a ruling on a petition to open a confessed judgment. To-wit, 1.) the petition must have been promptly filed; and 2.) a meritorious defense must have been averred. Foerst v. Rotkis, 244 Pa.Super. 447, 368 A.2d 805 (1976). Once a ruling either opening or refusing to open a confessed judgment is appealed, we, as an appellate court, will refrain from reversing a trial court’s decision unless it is shown that the court committed an error of law or manifestly abused its discretion. Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967).

It will be recalled that the appellant’s confessed judgment was followed by a petition to open by the appellee, which averred a contractual breach by the appellant relieving the appellee of any obligation (money) owed the appellant. Moreover, the petition included new matter and a counterclaim.

Our review of the new matter discloses that it merely repeats the appellee’s contention in the petition to open regarding the non-competitive clause. However, the counterclaim section sets forth two counts, one in assumpsit and equity seeking $7,000 for breach of the non-competition clause as provided for in the agreement of sale. The second relates to statements purportedly made by the appellant and his father “to go[ing] into business in competition with [the appellee] and if he made any objection, they would make trouble for him.” In the same count, the appellee averred that the parties just referred to “informed” him that interference with their intention of going into competitive business would be met by the appellee’s employees’ filing, at their insistence, sexual harassment charges. Accordingly, the appellee sought compensatory and punitive damages against the appellant only in excess of $10,000.

The appellant, instead of filing a formal answer denying the averments in the petition to open, submitted preliminary objections in the nature of a motion to strike for the appellee’s inclusion of new matter and a counterclaim in his petition in asserted violation of the Rules of Civil Procedure; in particular, Rules 2959 and 2960. Thereafter, the appellant filed a praecipe with the prothonotary of Lebanon County asking:

Please certify the entire record to the Court for disposition of Preliminary Objections under Lebanon County Rule 25.

A hearing resulted in the entry of an order and opinion, portions of which have been reproduced supra, in which the court below granted the petition to open.

We note at the outset that the petition to open would appear to have been timely filed and the proposed allegation therein would indicate a defense to the claim, i.e., breach of the non-competition portion of the contract by the appellant. Teodori v. Werner, 490 Pa. 58, 415 A.2d 31 (1980). In addition, we conclude that the joinder of new matter and a counterclaim in the appellee’s petition to open is not procedurally defective. As much was stated by this Court in J.M. Korn & Son, Inc. v. Fleet-Air Corp., 300 Pa.Super. 458, 462-463, 446 A.2d 945, 947 (1982):

... there is no rule, substantive or procedural, which prevents the adjudication of the counterclaims asserted by appellee in its petition to open. Rather, the rules pertaining to assumpsit actions are applicable. See Sanctis v. Lagerbusch, 213 Pa.Super. 483, 488, 249 A.2d 919, 922 (1968). The applicable assumpsit rule, found in Pa.R.C.P. 1031(a), permits a defendant to plead as a counterclaim “any cause of action or setoff which he has against the plaintiff at the time of filing the answer ... or which arises from contract or is quasi-contractual.”
The trial court was correct, therefore, when it defined the issues to be decided at trial to include “claims, defenses or counterclaims” pleaded in appellee’s petition to open the judgment. Any other interpretation of the procedural rules would have required two separate trials instead of one in order to adjudicate the respective rights and liabilities of the parties. The record before us discloses no good reason for embarking upon such an absurd misuse of judicial time and resources, not to mention inconvenience to the parties.
Pursuant to the trial court’s order, the litigation can now proceed to trial on the issues framed by pleadings which have already been filed. Those pleadings, however, cannot be amended to allege new defenses or counterclaims.

Next, we need to decide if the appellant’s preliminary objections, following the filing of which a hearing was sought and granted to the appellant, are in the nature of a petition within the ambit of Rule 209. If so, then the failure on the part of the appellant to contravene the appellee’s breach of contract allegation in his petition would render the defense “admitted for the purpose of the [R]ule.” Cf. Teodori v. Werner, supra, 490 Pa. at 62, 415 A.2d at 33 (“Landlords ... fil[ed] their answer without first even attempting to obtain an appropriate rule on tenant as permitted under Rule 209. By so failing to avail themselves of the benefit of Rule 209, landlords have ‘follow[ed] the prior practice,’ Goodrich-Amram 2d § 209:2 at p. 126, under which ‘the ordering of the action for argument on petition and answer admitted for the purpose of the argument the truth of the answer or petition filed by the adverse party.’ Id. § 209:1 at p. 116. See e.g., Harr v. Bernheimer, 322 Pa. 412, 185 A. 857 (1936); Rebic v. Gulf Refining Co., 122 Pa.Super. 149, 186 A. 236 (1936). Because landlords ‘[set] the case down without ruling the petitioner to proceed, [they admit] the averments of the petition.’ 2 Standard Pennsylvania Practice Ch. 9 § 46 p. 494 (1956). See Roach v. Nilson, 54 D. & C.2d 313 (Chester 1971); Price v. Jordan, 76 D. & C. 255 (Fulton 1951).”).

It is true, as already pointed out, the appellant did not file any formal answer to the appellee’s petition to open. Nonetheless, a meritorious defense (with affidavit attached) had been proffered, which, if proven at trial, would entitle the appellee to avoid liability to the extent of his injury. See Teodori v. Werner, supra; Becker v. Schoettle, 277 Pa.Super. 129, 419 A.2d 695 (1980). Despite this, the appellant filed no responsive pleading denying the appellee’s contention. Rather, he requested that the dispute be certified to the court for “disposition”. We deem such an (in)action to have not only obviated the need for the appellee to proceed to take depositions or move the case for argument, see Schultz v. Erie Insurance Exchange, 505 Pa. 90, 477 A.2d 471 (1984), but to constitute a willingness on the part of the appellant to admit in advance the truth of the facts pleaded by the appellee. Cf. Allegheny Home Improvement Corp. v. Franklin, 308 Pa.Super. 225, 234, 454 A.2d 103, 107 (1983) (“Appellants correctly maintain that under Rule 209 Appellee’s decision to forego depositions is considered an admission of ‘the existence of all facts properly pleaded in [Appellant’s] answer.’ ” (Citation omitted)); J.C.S. v. D.M.S., 277 Pa.Super. 612, 622, 419 A.2d 1319, 1324 (1980) (“ ... no answer had been filed, and there was no reason to suppose that the father by requesting calendar priority was indicating his willingness to admit in advance the truth of whatever facts the mother should plead when she did file an answer.” (Emphasis added)).

Accordingly, since there were no disputed issues of fact, the court below properly heard the matter on the appellant’s praecipe. Compare Urban v. Urban, 332 Pa.Super. 373, 481 A.2d 662 (1984) (Plaintiff’s complaint was followed by defendant’s answer, which, in turn, was followed by plaintiff’s preliminary objections in the nature of a motion to strike. Defendant’s argument that plaintiff's preliminary objections were in the nature of a petition under Rule 209 was not valid since the allegations raised therein were self-sustaining, “and no real dispute concerning the [preliminary objections] existfed; thus,] Rule 209 [was] not applicable.”), and contrast Van Arkel & Moss Properties v. Kendor, Inc., 276 Pa.Super. 547, 419 A.2d 593 (1980). If we were to find that the appellant’s preliminary objections required the appellee to resort to depositions, such a ruling would merely serve to delay resolution of the question while depositions were conducted for the sole purpose of stating anew the facts alleged in the appellee’s affidavit attached to his petition to open. Furthermore, while the appellant does state some facts in his preliminary objections, none of these facts disputes the existence of the facts alleged in the appellee’s affidavit. Thus, we find that the court below did not abuse its discretion or commit an error of law in opening the judgment. See generally Bensalem Township v. Terry, 317 Pa.Super. 380, 464 A.2d 371 (1983).

Order affirmed.

LIPEZ, J., concurs in the result.

      . Rule 209. Duty of Petitioner to Proceed After Answer Filed
      If, after the filing and service of the answer, the moving party does not within fifteen days:
      (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact;
      (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

      . Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure
      (a) Relief from a judgment by confession shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to him to enforce the judgment.
      (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order.
      (c) A party waives all defenses and objections which he does not include in his petition or answer.
      (d) The petition and the rule to show cause shall be served as provided in Rule 233, and the answer as provided in Rule 1027.
      (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.
      (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending.

        ible 2960. Proceedings upon Opening of Judgment. Pleadings. Jury Trial. Waiver.
      If a judgment is opened in whole or in part the issues to be tried shall be defined by the complaint if a complaint has been filed, and by the petition, answer and the order of the court opening the judgment. There shall be no further pleadings. The right to a jury trial on the opened judgment shall be deemed waived unless a party files and serves a written demand for jury trial within twenty (20) days after the order opening judgment; but if the issue is referred to compulsory arbitration, Rule 1007.1 shall apply.


source: Caselaw Access Project

license: Public Domain

text:
    490 A.2d 887
    COMMONWEALTH of Pennsylvania v. Jerry E. KARL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1985.
    Filed March 22, 1985.

      William H. Poole, Jr., York, for appellant.
    Thomas L. Donahoe, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before POPOVICH, WATKINS and LIPEZ, JJ.
   POPOVICH, Judge:

This is an appeal by the appellant, Jerry E. Karl, from the judgment of sentence for the summary offenses of driving an unregistered vehicle ($25.00 fine plus costs of prosecution) and leaving the scene of an accident ($25.00 fine plus costs of prosecution). We affirm in part and reverse in part.

The evidence, viewed in a light most favorable to the verdict-winner, reveals that at approximately 10:20 p.m. on the 22nd of September, 1981, the appellant was driving his girlfriend’s (Elaine Marden’s) Chevette at a rate of 2-3 miles per hour in order to coax her back into the vehicle. She refused his importunings and continued to walk on the sidewalk with him driving along side of her. The end result of this lover’s quarrel was that the appellant struck a vehicle driven by Michael E. Grove. The appellant left the scene and Mr. Grove pursued long enough to secure the striking vehicle’s license number. Mr. Grove, with his two passengers, returned to the scene to pick up some of the debris left on the street from the accident. By this time the police had arrived on the scene and obtained a description of the fleeing vehicle from Grove, his passengers and the appellant’s girlfriend, who was still at the site.

During questioning by the police, Grove happened to look down the street and observed the appellant standing on the corner. Grove reacted by telling the police, “Over there he is.” Appellant’s girlfriend confirmed this and called over to the appellant, but “he stood there. That was it.” However, when he started to walk away, the two officers “ran after him[ and] caught up to Mr. Karl as he was opening the driver’s door to a dark green Chevette bearing the registration which [they] had been given.” The appellant was then placed under arrest and taken down to headquarters and charged with various offenses, only two of which are at issue here.

On the charge of leaving the scene of an accident involving an attended vehicle (75 P.S. § 3743), we find that sufficient evidence was presented by the prosecution to warrant affirmation of the sentence imposed. For example, testimony from Grove, his two passengers, the appellant’s girlfriend and even the appellant confirmed the occurrence of a collision. The only explanation proffered by the accused was that he did not realize that an accident had occurred until minutes after leaving the scene. When he returned, on one occasion he claims, no one was present. The trier of fact, being the ultimate arbiter on this credibility question, disbelieved the appellant’s version. We see no reason to overturn such a finding when it is supported by the record. Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154 (1982).

We reach a different result in regard to the conviction of driving an unregistered vehicle. The statute in question reads:

It is a summary offense for any person to drive or for an owner knowingly to permit to be driven upon any highway any vehicle of a type required to be registered under this chapter which is not registered or for which the appropriate fee has not been paid when and as required in this title.

The Act of June 17, 1976, P.L. 162, No. 81, § 1, effective July 1, 1977; 75 P.S. § 1301.

At trial, the following evidence is the sole basis for the driving an unregistered vehicle conviction; viz.:

DIRECT EXAMINATION
BY MR. GENT [Commonwealth’s Attorney]:
THE COURT: You’re still under oath, ma’am.
Q. Elaine, turning your attention back to the evening in question, you were the owner of the green Chevette that was driven by Mr. Karl?
A. Yes, I was.
Q. Would you tell the judge whether that car at that time had a valid registration or not?
A. It was not registered.
Q. And why was it not?
A. It expired.
Q. Now, had you communicated that fact in any way to Mr. Karl at any time prior to that evening?
A. No, because we didn’t plan to be driving that car.
Q. So, to your knowledge, he was not aware that it was unregistered?
A. I really don’t know whether he was or not.
MR. GENT: That’s all I have, Your Honor.
MR. FITZKEE [Appellant’s Attorney]: No questions.
THE COURT: You may step down. Do you want to put him on for any purpose?
MR. FITZKEE: No.
THE COURT: I’ll assume then that he knew that they were expired, Mr. Fitzkee. (RR. 174a-175a)

We find that the trial court’s assumption was not consonant with accepted principles of law on the question of establishing one’s guilt to a level of “beyond a reasonable doubt.”

We recently have had occasion to discuss at length the burden of proof as it applies to criminal cases. In particular, the crime of carrying a firearm without a license and the manner in which proof of licensure can be accomplished and by whom it is to be met. The discourse is instructive to us now; to-wit:

“a State must prove every ingredient of an offense beyond a reasonable doubt and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.”
To hold that the prosecution had satisfied its burden, we believe, would have required the trier of fact to make an unwarranted inference of the presumed fact (nonlicensure under section 6106(a)) from the proven fact of appellant’s nonlicensure in the City of Beaver Falls. This presumption, being a procedural device adhered to in Pennsylvania,
not only permits an inference of the “presumed” fact, but also shifts to the opposing party the burden of producing evidence to disprove the presumed fact. Failure to meet this burden of production will normally result in binding instructions on the issue of the presumed fact’s existence in favor of the party invoking the presumption. But the notion of a directed verdict against a criminal defendant is contrary to accepted tenets of criminal justice. Placing the burden of production on a defendant under the threat of such a sanction would run afoul of the presumption of innocence, see Commonwealth v. Bonomo, 396 Pa. 222, 229-230, 151 A.2d 441, 445-446 (1959), as well as the defendant’s privilege of declining to testify. Thus, where the presumed fact comprises an element of the crime charged, the inference authorized by a presumption can never be compelled by the court. See generally Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974).
Commonwealth v. DiFrancesco, 458 Pa. 188, 193 n. 3, 329 A.2d 204, 207 n. 3 (1974). It requires noting that in DiFrancesco our Supreme Court, in accepting a statutory inference in a criminal case involving driving while under the influence of intoxicating liquor, held that when an inference is used in a criminal case such inference must meet the “beyond a reasonable doubt” standard of proof. The reasonable doubt standard requires that when the inferred fact is an essential element of the crime charged, that fact must logically flow from the given fact beyond a reasonable doubt. Commonwealth v. Slaybaugh, 468 Pa. 618, 624-625, 364 A.2d 687, 690 (1976).

Commonwealth v. Bryant, 341 Pa.Super. —, —, 491 A.2d 181, 187 (1985).

To begin with, it is to be observed that section 1301 specifically requires “knowledge” on the part of the owner to hold him liable for permitting the unregistered vehicle on the road. Thus, this element of scienter is essential in establishing the owner’s guilt. The question then arises: Should there be any less of a requirement when it comes to proving “any person”, not the owner, guilty of violating the statute? We think not, for the outgrowth thereof would have us applying two different standards of proof to establish violations of the same statute, e.g., if an “owner” is charged with violating section 1301, “knowledge” of non-registration of the vehicle driven would have to be proven by the prosecution. But, if “any other person” is charged with contravention of the identical statute, the trier of fact could, as was the case here, “assume” proof of the element of scienter on the part of the accused. We cannot attribute such an absurd result to the Legislature. 1 Pa.C.S.A. §§ 1921(a), 1922(1) & (2).

Such a practice, if condoned, would smack of unequal application of the law and raise serious constitutional questions. For example, the defendant would be required to come forward with evidence to rebut the presumption of “knowledge” read into the statute by the court below. If the accused does not take the stand in his own defense, then, as occurred here, the trial judge could “assume” his guilt and cause the verdict to be based “upon a presumption of guilt rather than proof beyond a reasonable doubt. See McCormick on Evidence, § 346 at 988 Point 2 (Presumptions) (3d ed. 1984).” Commonwealth v. Bryant, supra, 341 Pa.Super. at —, 491 A.2d at 187.

Also, we note that the 1983 (amended) version of section 1301 places the burden of proving nonresidency, whenever it is asserted as a defense, upon the person charged under the section. The Act of July 22, 1983, P.L. 122, No. 32, § 2, imd. effective; 75 Pa.C.S.A. § 1301(b) (Supp.1984-85). This evidences a conscious choice on the part of the Legislature to shift the burden of proof from the prosecution to the accused in one particular instance. We find this departure from traditional practice reflective of the Legislature’s determination that the prior practice, as applied to burdens of proof at trial, is to be retained unless legislated otherwise. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). There being no indication by the legislative body that the prosecution is to be relieved of its obligation in the other provisions of section 1301, either past or present, we see no reason to shift the acknowledged burden of proof from the Commonwealth to the defendant in a section 1301 case.

Since this Court’s ruling in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981), the full panoply of rights associated with the Rules of Criminal Procedure have been held to be henceforth applicable to summary cases. No less is this evident than in the requirement that one's guilt is to be established beyond a reasonable doubt, as compared to an assumption of wrongdoing. Cf. Pa.R.Crim.P. 63(b) (“ * * * If the defendant pleads not guilty, the issuing authority shall try the case in the same manner as trials in criminal cases are conducted in the courts of common pleas when jury trial has been waived.”).

The United States Supreme Court said it quite simply, when speaking of a juvenile’s right to be adjudged by a “beyond a reasonable doubt” standard in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970), in terms which are equally applicable here; namely:

... use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In the case at bar, it will be recalled that the appellant’s girlfriend testified that she never communicated the fact of non-registration to the appellant prior to his use of her Chevette. Thus, if we were to apply the “assumption” standard of guilt to the instant section 1301 charge, then any citizen of this Commonwealth who borrows or uses the vehicle of another opens himself/herself up to a motor vehicle violation if inquiry is not made beforehand as to the status of the vehicle’s registration. We believe that the Legislature did not intend such an absurd result. Therefore, in this Court’s view, it would be a travesty of justice if we were to affirm the appellant’s conviction for violating section 1301 on no evidence of scienter as to the non-registration of the vehicle he was seen driving.

Accordingly, judgment of sentence as to leaving the scene of an accident is affirmed; whereas, judgment of sentence for driving a non-registered vehicle is vacated.

LIPEZ, J., concurs in the result.


author: HOFFMAN, Judge:

text:
    490 A.2d 891
    COMMONWEALTH of Pennsylvania v. Thomas Charles JULIANO, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1984.
    Filed March 22, 1985.

      Donald B. McCoy, Newtown, for appellant.

      Seth Weber, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for possession of a counterfeit controlled substance and conspiracy. Appellant contends, inter alia, that the evidence was insufficient to establish his possession of the contraband. We agree and, accordingly, reverse.

In determining whether the evidence is sufficient in law to prove that a defendant is guilty beyond a reasonable doubt of the crime or crimes charged, we must, after a verdict of guilty, accept as true all of the evidence, direct or circumstantial, and all reasonable inferences arising from the evidence, upon which the trier of fact could properly have based the verdict.

Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974) (emphasis in original).

So viewed, the facts are as follows: On October 3, 1981, Detective Joseph Dunner of the Bensalem Township Police Department was contacted by Mrs. Marlene Drueding of Bensalem. Mrs. Drueding informed Dunner that her son Edward was a drug dealer and was going to meet a Chris DiBona at the Philadelphia International Airport that evening, and that DiBona would be arriving at approximately 5:15 p.m. on a Delta Airlines flight. Mrs. Drueding based her information on a telephone call that she had received from DiBona the night before and on a phone conversation between her son and DiBona which she had overheard that morning. During this conversation, Mrs. Drueding overheard her son tell DiBona to bring the “white stuff,” a term which she knew to be the vernacular for cocaine. At approximately 2:30 p.m., Mrs. Drueding again contacted Dunner to tell him that her son had left the house with Joseph Cobuccio in a green Ford automobile with Pennsylvania registration # DCR171.

Dunner, along with Pennsylvania State Trooper Kenneth Anthony and Bensalem Police Officer Charles Maddocks (who knew both Drueding and Cobuccio by sight), proceeded to the Philadelphia International Airport and began surveillance of the Delta Airlines Terminal. At approximately 4 p.m., Edward Drueding and Cobuccio were observed near a refreshment stand in the Delta area. At 5:35, Drueding was observed meeting with DiBona who had arrived on the Delta flight. Drueding and Cobuccio were then observed going to the Delta baggage claim area. Several minutes later, they were seen leaving the baggage claim area carrying a green satchel-type bag with an airline ticket on it. Approximately 10 minutes later, Drueding and Cobuccio were observed driving out of the airport parking area in a green Ford with Pennsylvania registration # DCR171. The car proceeded to the Airport Sheraton Hotel, approximately one mile away, and stopped there just long enough to pick up DiBona and appellant, Thomas Juliano. The vehicle then proceeded north on 1-95 and was stopped on 1-95 in Bensalem Township, Bucks County, Pennsylvania, by marked State Police and Bensalem Township Police units. When stopped, the car was occupied by four men: Cobuccio in the driver’s seat, Drueding in the front passenger seat, appellant in the left rear passenger seat (behind the driver), and DiBona in the right rear passenger seat. After the four got out of the car, police observed through the car window a green bag sitting on the floor in front of the left rear seat which appellant had been occupying. After a warrant was obtained, the police searched the car and seized the green bag along with a brown briefcase. The briefcase was found to contain appellant’s papers and other items, but no contraband. The green satchel was found to contain unmarked articles of clothing and 2002 white tablets, later identified as counterfeit methaqualone.

On these facts, the lower court found that appellant had been in constructive possession of the green satchel containing the contraband and was therefore guilty of violating § 780-113(a)(16) of the Controlled Substance, Drug, Device & Cosmetic Act, as follows:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
* * * * * *
(16) Knowingly or intentionally possessing a eon-trolled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate state board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.

35 P.S. § 780-113(a)(16) (emphasis added). The term “possession” is statutorily defined as “an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.” 18 Pa.C.S.A. § 301(c).

In narcotics possession cases, the Commonwealth may meet its burden by showing actual, constructive, or joint constructive possession of the contraband____ Proof of constructive or joint constructive possession of dangerous drugs requires evidence that the defendant, or in joint constructive possession cases, the defendant and others, had both power to control and the intent to exercise control over the narcotics. A necessary prerequisite of intent to control is proof that he had knowledge of the existence and location of the narcotics.... While a defendant’s mere presence among a group of people, all of whom had equal access to the contraband is not alone, persuasive evidence of constructive possession, the requisite knowledge and intent may be inferred from examination of the totality of the circumstances surrounding the case____ Location of the contraband in an area usually accessible only to the defendant may lead to the inference that he placed it there or knew of its presence if others did so.

Commonwealth v. Thompson, 286 Pa.Superior Ct. 31, 34-35, 428 A.2d 223, 224 (1981) (citations omitted). See also Commonwealth v. Davis, 308 Pa.Superior Ct. 431, 433-435, 454 A.2d 612, 613 (1982); Commonwealth v. Hoetzel, 284 Pa.Superior Ct. 623, 631-633, 426 A.2d 669, 673 (1981).

Here, while it is obvious that appellant knew of the existence and location of the green satchel which had been sitting at his feet during the car ride, we fail to see how appellant’s knowledge of the contents of the green satchel could be inferred from the evidence of this case, even when such evidence is viewed in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom. Appellant was not implicated in the phone conversations reported by Mrs. Drueding, nor was he ever seen physically carry the green bag. In addition, when the police stopped the car, appellant made no furtive movements toward the bag and did not attempt to escape. Indeed, the only evidence tying appellant to the illegal drug transaction were his appearance with DiBona at the Sheraton Hotel, his presence in the car with the three men, and the fact that the green bag was found near where he had been sitting in the car. First, “[g]uilt by association ... is unacceptable.” Commonwealth v. Fortune, supra 456 Pa. at 368, 318 A.2d at 328. Additionally, “mere presence of one person, among a group at a scene of contraband, is not a strong factor indicative of guilt.” Commonwealth v. Cash, 240 Pa.Superior Ct. 123, 125, 367 A.2d 726, 727 (1976). Lastly, we do not believe that the location and proximity of the contraband alone should be conclusive of guilt. Here, the green satchel was already in the car when the vehicle stopped at the Sheraton Hotel. Thus, it may have been only happenstance that appellant or DiBona got into the back seat of the car first and that appellant ended up occupying the left side near the green bag.

Our position is consistent with relevant caselaw. In Commonwealth v. Armstead, 452 Pa. 49, 305 A.2d 1 (1973), police officers stopped the car in which the defendant was a passenger and requested both the driver and the defendant to get out. No weapon was observed at that time. Then, a second police car arrived and, because the door of the stopped car was open, the arriving police officers saw a .38 caliber automatic pistol lying in the middle of the front seat. The Commonwealth argued by inference that the weapon must have been on the front seat next to the defendant during the time he was a passenger and that therefore he must have known of its presence. Our Supreme Court disagreed, stating that “[a]n equally logical argument can be made that the weapon was on the person of the driver during the time appellant was a passenger, and that the driver discarded the weapon as he got out of the car.” Id., 452 Pa. at 52, 305 A.2d at 2. In finding the evidence insufficient to sustain the defendant’s conviction for unlawful possession of a firearm, the Court stated that “mere presence in an automobile in which a weapon is found is not sufficient to prove that a defendant-passenger is in possession of the weapon.” Id., 452 Pa. at 51, 305 A.2d at 2. In Commonwealth v. Wisor, 466 Pa. 527, 353 A.2d 817 (1976), the police found a pipe containing marijuana in the bottom of the well beneath the right front passenger’s seat of the defendant’s car. This space was only disclosed when the front seat was pushed forward. At the time of the search, the defendant was sitting in the driver’s seat and there were five passengers in the car. The Supreme Court found the evidence insufficient to support the inference that the defendant was in constructive possession of the pipe. Because of the presence of other persons in the car, the Court reasoned that the defendant did not have exclusive control of the area where the pipe was found, stating that “the fact of possession loses all persuasiveness if persons other than the accused had equal access with him to the place in which the property was discovered.” Id., 466 Pa. at 531, 353 A.2d at 818. In Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977), the evidence was found insufficient to sustain the defendant’s conviction for possession of a controlled substance on the following facts: County deputy sheriffs obtained a search warrant for the defendant’s trailer. Because the trailer was locked, they waited until the defendant’s roommate arrived with his girlfriend before executing the search. The search disclosed marijuana seeds on the kitchen floor, marijuana cigarette butts in the living room ashtray, a “baggie” containing marijuana residue in the living room, and approximately 80 grams of marijuana in the milk delivery box attached to the trailer hitch. When the defendant arrived home, the officers arrested him and then obtained a warrant to search the car which the defendant had been driving. They found two marijuana cigarettes in the console between the front seats of the car. However, the car belonged to the defendant’s attorney and the defendant had only picked up the car to repair it. The Court reasoned that all of the marijuana found in and around the trailer were in areas equally accessible to the defendant’s roommate and his girlfriend. It also found that the Commonwealth failed to prove beyond a reasonable doubt that the defendant knew about the two marijuana cigarettes seized from his attorney’s car.

Similarly, here, appellant was merely present in the automobile in which the contraband was found, there was no evidence that he knew of the presence of the counterfeit methaqualone in the green satchel, and the other three occupants of the car had equal access to the area in which the green satchel was found. Therefore, on the facts of this case, we hold that the circumstantial evidence of appellant’s guilt was insufficient to prove him guilty beyond a reasonable doubt of knowingly or intentionally possessing a counterfeit controlled substance.

Accordingly, we reverse the judgment of sentence and order appellant discharged.

      . Appellant was sentenced to two consecutive terms of one year probation.

      . Appellant also contends that counsel was ineffective in failing to raise a Rule 1100 issue and that the search warrant was invalid. Because of our disposition of this case, however, we need not address those claims.

      . At trial, appellant offered exculpatory evidence that he had met DiBona, an acquaintance, by chance at the Sheraton Hotel, and had accepted DiBona’s offer to give him a ride to Atlantic City after appellant’s date failed to show up at the hotel due to car problems. He denied any knowledge of the contents of the green bag found in the car.

      . Cases in which the evidence was found sufficient to sustain a conviction based upon the defendant’s possession of contraband are distinguishable from the instant case. See Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178 (1982) (when stopped by police, defendant was carrying a bag containing a hat removed from the burglarized home); Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981) (25 packets of heroin were found under the couch cushion in the “combination parlor-bedroom” of defendant’s second floor apartment; although two other people were present in the apartment at the time of the search, one was on the third floor when police entered and the other was sitting in the kitchen staring into the oven); Commonwealth v. Gray, 322 Pa.Superior Ct. 37, 469 A.2d 169 (1983) (marijuana was found in the locked trunk of defendant’s car which was placed on cinderblocks in the driveway of a residence occupied by defendant and another person); Commonwealth v. Diaz, 319 Pa.Superior Ct. 538, 466 A.2d 674 (1983) (during a routine search of defendant’s closed but unlocked prison cell, a plastic bag containing 64 marijuana cigarettes fell from items of defendant’s clothing in the cell); Commonwealth v. Wilcox, 310 Pa.Superior Ct. 331, 456 A.2d 637 (1983) (defendant was in exclusive possession of the vehicle stopped by police; a controlled substance was found in the cigarette case on the driver’s seat by the officer who took control of the car while another officer was chasing defendant); Commonwealth v. Thompson, 286 Pa.Superior Ct. 31, 428 A.2d 223 (1981) (defendant, along with two other inmates, inside defendant’s cell, were observed in possession of small packets of marijuana; a larger packet was observed in plain view on defendant’s bunk); Commonwealth v. Bentley, 276 Pa.Superior Ct. 41, 419 A.2d 85 (1980) (a loaded handgun was found on the floor in front of the driver’s seat in the car driven by defendant and registered to defendant’s wife, two live bullets were found on the ground beside the driver’s door, defendant and his passenger locked the car after exiting, and a gym bag containing another handgun was found in the tire well of the car); Commonwealth v. Jones, 250 Pa.Superior Ct. 236, 378 A.2d 914 (1977) (marijuana was found among defendant’s personal effects in a place normally accessible only to defendant); Commonwealth v. Ferguson, 231 Pa.Superior Ct. 327, 331 A.2d 856 (1974) (defendant was the exclusive operator of a garage in which police located heroin in the supply room, in a loft in the back room, behind the water cooler, and underneath defendant’s desk, which were all places to which defendant as operator of the garage alone would have access); and Commonwealth v. Updegrove, 223 Pa.Superior Ct. 7, 296 A.2d 854 (1972) (LSD was found in a plastic box lying among defendant’s personal effects on the bedroom floor of the apartment to which defendant and another person had free access).


author: CERCONE, Judge:

text:
    490 A.2d 896
    VALE CHEMICAL COMPANY v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, and Transamerica Insurance Co., and Manufacturers’ Casualty Insurance Company. Appeal of MANUFACTURERS’ CASUALTY INSURANCE COMPANY and Transamerica Insurance Company Appeal of HARTFORD ACCIDENT AND INDEMNITY COMPANY
    (at No. 169).
    (at No. 170).
    Superior Court of Pennsylvania.
    Argued June 11, 1984.
    Filed March 22, 1985.

      Wayne A. Schiable, Philadelphia, for Manufacturers’, appellants (at 169) and for appellees (at 170).
    Matthew R. Sorrentino, Bethlehem, for Hartford, appellant (at 170) and for appellee (at 169).
    Bruce W. Weida, Allentown, for Vale, appellee.
    Before CIRILLO, BECK and CERCONE, JJ.
   CERCONE, Judge:

The plaintiff, Vale Chemical Company, Inc. (Vale), brought a declaratory judgment action against two of its former insurers, Manufacturers’ Casualty Insurance Company (Manufacturers’) and Hartford Accident and Indemnity Company (Hartford), as well as Transamerica Insurance Company as successor in interest to Manufacturers’. The action was brought to determine which, if any, of these insurers has a duty to defend and, if necessary, to indemnify Vale in an action brought against Vale by a Sandra Smith in 1980 in the Circuit Court of Cook County, Illinois.

In order to understand the contentions of each party to this suit, we must examine Sandra Smith’s claim against Vale since her lawsuit is the underlying basis for determining the insurers’ obligations under their policies. Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959); Wilson v. Maryland Casualty Co., 377 Pa. 588, 105 A.2d 304 (1954). In her lawsuit, Ms. Smith claims damages for personal injuries in the nature of vaginal cancer. She allegedly sustained this injury as a result of her mother’s ingestion during her pregnancy with Sandra in 1952-53 of a drug, stilbestrol. The drug was produced and sold by Vale and carried the trade name, diethylstilbestrol or DES (hereinafter DES). Ms. Smith alleges that the DES set in motion a misalignment of vaginal cellular growth during her fetal development and is the causative event of vaginal cancer which became manifest and so diagnosed in 1978 when Ms. Smith was 25 years old. She alleges that Vale’s negligence is the proximate cause of her condition. At the time Sandra’s mother ingested DES, Vale was insured under a policy with Manufacturers’. At the time Sandra’s cancer became manifest and diagnosed, Vale was insured under a policy issued by Hartford. The question posed by Ms. Smith’s allegations is how do they relate to the insurers’ responsibilities under the policies they issued to Vale to defend and, if necessary, to indemnify Vale in the Sandra Smith case against Vale, the manufacturer of DES.

Vale contends that both insurers are responsible to defend and, if necessary, to indemnify it in the Sandra Smith case, reasoning that any step in the progression of a DES-related disease, from exposure to manifestation, triggers coverage of Vale’s liability under each policy. Manufacturers’, on the other hand, contends that policy coverage was triggered only when the injury became manifest and diagnosed in 1978 which was the time the Hartford policy was in effect. Manufacturers’ also argues, that even if Sandra had suffered bodily injury during her fetal period, it was not the result of an accident as provided by the policy, and thus, outside the policy coverage. Hartford, understandably, contends that the policy coverage was triggered at the time of ingestion of DES by Sandra’s mother at which time the Manufacturers’ policy was in force and effect.

All the parties filed cross-motions for summary judgment and, after oral argument, the lower court entered summary judgment in favor of Vale, the plaintiff, against both defendants. Both insurers have appealed the grant of summary judgment and their appeals have been consolidated.

Manufacturers’ Policy

The Manufacturers’ policy (the policy in force and effect at the time Sandra Smith’s mother ingested DES) contains the following language:

Coverage A Bodily Injury Liability.
To pay on behalf of the Insured, within the limits expressed in the declarations, all sums which the insured shall become obligated to pay by reasons of the liability imposed upon the Insured by law, for damages ... because of bodily injury, sickness or disease, including death at any time resulting therefrom, suffered or alleged to have been suffered by any person or persons while this policy is in force, as a result of any accident occurring by reason of the existence, possession, consumption or use of any product manufactured, sold, handled, delivered or distributed by the Insured during the time of this policy or prior thereto ... (emphasis added).

The policy further follows:

bodily injury shall be construed to mean also sickness, disability, or mental anguish resulting from the existence, possession, consumption or use of any product, covered by the policy...

The two issues to be decided concerning coverage to be provided by the Manufacturers’ policy are (1) Did Sandra Smith “suffer” bodily injury within the terms of Manufacturers’ policy coverage, and (2) If she did suffer “bodily injury,” “sickness” or “disease” while in útero, what is the effect of the provisional clause, “as a result of any accident,” which Manufacturers’ contends did not occur in this case.

Manufacturers’ presents three points in its argument on the first issue, contending that Ms. Smith did not “suffer” physical injury during its policy period. The first point on this issue is that Ms. Smith failed to allege in útero suffering in her initial complaint. As the result of this failure to so allege, Manufacturers’ maintains that the trial court went beyond the pleadings in the underlying case in determining the parties’ duty to defend. This argument is predicated on the fact that in her complaint against Vale, Ms. Smith averred that she “was diagnosed to be suffering from clear cell adenocarcinoma of the vagina in September, 1978.” (emphasis added) Since it is settled that the obligation of an insurer to defend an action against the insured is fixed solely by the allegations of the complaint in the underlying action, Wilson v. Maryland Casualty Co., supra, Manufacturers’ contends that Ms. Smith did not allege any “suffering” during the time its policy was in force, that is, at the time of her mother’s ingestion of DES and, therefore, they have no duty to defend Vale in the underlying action. We disagree.

Manufacturers’ view of the complaint against Vale, particularly its reliance upon one paragraph of that pleading to absolve itself of a duty to defend, it much too narrow. The complaint not only alleged that the adenocarcinoma was diagnosed in 1978, but also that it was proximately caused by her mother’s DES ingestion in 1952 and 1953, and that the DES was manufactured by Vale. It is undisputed that Vale was insured in 1952 and 1953 under a policy with Manufacturers’. We also take judicial notice here of the medical history concerning the effect of DES effect on a fetus. In view of the foregoing, we have no hesitancy in concluding that Smith’s claim clearly comprehended an injury potentially within the scope of the Manufacturers’ policy. See Cadwallader v. New Amsterdam Cas. Co., supra; Brugnoli v. United Nat. Ins. Co., 284 Pa.Super. 511, 426 A.2d 164 (1981). Furthermore, we note that Illinois courts allow for liberal amendment of pleadings so as not to defeat a cause of action because of inartful pleading. While we have no jurisdiction to order the Illinois court to allow for amended pleadings, we see no reason why that court will not allow such amendments as are appropriate. See Ill.Stat.1977, ch. 110, par. 33(3) and Bebee v. Fields, 79 Ill.App.3d 1009, 35 Ill.Dec. 264, 398 N.E.2d 1214 (1979) (“To sustain the dismissal of a complaint on the basis of a correctable pleading defect would be unfair.” 35 Ill.Dec. at 269, 398 N.E.2d at 1219.)

The second point of Manufacturers’ contention that bodily injury was not suffered by “any person” while its policy was in effect is answered by the law of Pennsylvania which holds that a child born with embryonic injuries can seek damages for those injuries caused by the negligence of another. See Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960); Transamerica Ins. Co. v. Bellefonte Ins. Co., 490 F.Supp. 935 (E.D.Pa.1980).

Manufacturers’ final point on the issue of whether Sandra Smith suffered bodily injury at the time of her mother’s ingestion of DES is premised on Manufacturers’ contentions that “bodily injury,” “sickness” or “disease,” within the meaning of the policy, refer only to the time the condition manifests itself.

This issue would appear to be one of first impression in the appellate courts of Pennsylvania. Other jurisdictions have wrestled with various aspects of the question as to when “bodily injury” occurs, that is, whether it occurs at time of the initial assault of a disease when it does not manifest itself, or, at time of its ultimate manifestation. No clear majority position has evolved. A.C. & S., Inc. v. Aetna Cas. & Sur. Co., 576 F.Supp. 936 (E.D.Pa.1983). The Manufacturers’ policy clearly provided that the injury and not the occurrence of accident must take place during the policy period.

In the case of Eli Lilly v. Home Ins. Co., No. 82-0669 (D.D.C. April 12, 1984) a case of first impression under Indiana law, a federal court held that any insurer providing coverage to a DES manufacturer between the initial ingestion of the drug and the manifestation of a DES-related disease is fully liable to the manufacturer for indemnification. The Lilly court took note of the three views of when “bodily injury” occurs in latent disease cases. Under one view, the injury is found to have occurred at the time of exposure to the hazardous substance. Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.1981), cert. denied 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650; Ins. Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir.1980), cert. denied 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). A second view is that the injury takes place when the disease manifests itself. Eagle-Picher Industries, Inc. v. Liberty Mutual Ins. Co., 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1280, 75 L.Ed.2d 500 (1983). The third view is the “multi-trigger" theory which holds that any insurer that covered the risk between exposure and manifestation of the disease is liable for defense and indemnification. After finding that Indiana courts have not addressed the “three views” issue and that the policy provision at issue was ambiguous, the court adopted the multi-trigger theory. The court, rather than inquiring into extensive evidence, noted that Indiana courts apply the basic principle of interpreting insurance policies to give effect to the parties’ reasonable expectations. Thus, the court ignored the insurers’ evidence that Lilly’s actual intent was to purchase single-trigger coverage (exposure or manifestation). For this reason, the court rejected the manifestation theory, finding it to be based on extrinsic evidence regarding actual intent. The court also rejected the exposure theory, finding that theory to be based on medical evidence of the etiology of the particular disease. Consequently, the court based its rejection of the exposure theory on the strong public policy in favor of promoting coverage.

In the Lilly court’ view, only the multi-trigger theory is based on the principle that where an insurance policy is ambiguous, it should be interpreted to give effect to the reasonable expectations of the parties. The court found that Lilly, the insured manufacturer of DES, could reasonably have expected that, in purchasing its policies, it was obtaining coverage for all future liability arising from the use of DES.

In Keene Corp. v. Ins. Co. of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875, rehearing denied, 456 U.S. 951, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982), the court held that the policy language before it was not helpful in deciding when “bodily injury,” “sickness” or “disease” occurred. Although the Keene case involved an asbestos-related disease, its language is applicable to our case. Therein, the court stated that the terms “bodily injury,” “sickness” or “disease” simply lacked the precision necessary to identify a point when the physical damage or debility occurred so as to determine adequately at which time coverage was triggered. Without assistance from case law or any specific terms of the policy before it, the Keene court held that insurers, from time of exposure to time of manifestation, are responsible for the defense and, if necessary, the indemnification of the insured. It came to this conclusion by utilizing equitable principles with insurance principles and the general terms and purposes of the policy.

In the case of A.C. & S., Inc. v. Aetna Cas. & Sur. Co., supra, the court adopted the Keene resolution of the “bodily injury” issue. It said that courts which consider the three views of when “bodily injury” occurs in latent disease cases, adopt an interpretation designed to “promote coverage” and to fulfill the dominant purpose of providing the maximization of coverage. Because the A.C. & S. court found the terms “bodily injury,” “sickness” or “disease” in the policies before it to be ambiguous as to the time of occurrence, it adopted the Keene multi-trigger principle so as to afford the insured maximum coverage. As the Keene court said, “in construing the policies’ coverage of liability for asbestos-related diseases, our objective must be to give effect to the policies’ dominant purpose of indemnity.” 667 F.2d at 1041. In Keene, recovery was allowed for an asbestos-related disease from time of exposure through time of manifestation.

Since an asbestos-related disease is similarly separated in time from its initial assault to the time of the manifestation of its debilitating effect, we see no reason not to adopt this same approach to DES-related diseases. If the concept of exposure were to be adopted, it would trigger coverage only under the policy in force at the time of ingestion. That is to say, a DES exposure would be considered a discrete injury and there could be no future injury related to the use of DES. Consequently, no insurable coverage would be available at time of manifestation of the disease. By the same token, if we were to adopt the “manifestation” theory, the claim for injury at time of ingestion would not be cognizable at law even though physical injury was suffered at that time and despite the fact that a products liability insurance policy was in force and effect at the time of ingestion of DES. See Kremers-Urban Co. v. American Employers Insurance Co., 119 Wis.2d 722, 351 N.W.2d 156 (1984) (sufficiency of allegations to meet requirements of policy coverage).

As we find that the policy language in the instant case does not direct us unambiguously to either an “exposure” or “manifestation” interpretation, we must look to the general expectations of the insured at the time of purchase in order to determine the extent of coverage. See, e.g., Blue Anchor Overall Co. v. Pennsylvania Lumberman’s Mut. Ins. Co., 385 Pa. 394, 123 A.2d 413 (1956) and Collister v. Nationwide Life Ins. Co., 479 Pa. 579, 388 A.2d 1346 (1978). Manufacturers’ policy was entitled “Products Public Liability Policy.” The fact that Vale purchased a general products liability policy indicates that it reasonably expected that it was free of the risk of becoming liable for latent injuries which were incurred during the policy period but manifested at a later time. There is no clear indication in the Manufacturers’ policy, considering its totality, that the parties intended to exclude coverage for these latent diseases.

In view of the foregoing discussion, we have no hesitancy in finding that the language “bodily injury,” “sickness” or “disease” includes coverage from time of exposure to time of manifestation. We note that this holding is limited to the issue arising pre-trial as to which insurance company has a duty to defend or indemnify the insured. At trial, insofar as the Manufacturers’ policy is concerned, Ms. Smith will be obliged to substantiate the allegations in her complaint, inter alia, that her mother ingested DES while she was pregnant and that DES was the proximate cause of her cancerous condition.

The second issue raised by Manufacturers’ can be stated as follows: Did Sandra Smith’s injury arise “as the result of any accident?” Unless the injury was the result of an accident, according to the insurer, Sandra Smith’s claim would be outside the ambit of the policy and Manufacturers’ would have no obligation to provide a defense or indemnity for Vale. More specifically, Manufacturers’ contends that Sandra Smith’s adenocarcinoma did not result from any sudden, distinct and identifiable events and that, therefore, her disease was not the result of an accident.

While neither the insurer nor the insured may have been fully aware of the characteristics of DES-related diseases at the time of the writing of the policy, the taking of risk is an inherent incident to the insurance industry limited only by the terms of policies. Looking at the composite terms of the policy, its language exhibits no intention to exclude coverage of diseases with long gestation periods. This court, then, will not interpret the phrase “as a result of any accident” as providing such an exclusion.

There are certainly many drugs whose onset of ill effects cannot be precisely determined. Manufacturers’ contends that even if it conceded that Sandra Smith suffered injury as the result of her mother’s ingestion of DES, it would still not be responsible under the policy unless Sandra Smith’s injury was the result of an accident. This is an illusory attempt at a defense since there is no evidence at this point in the case that a DES-related disease does not arise out of an accident. But, more important, there is an ambiguity between the clause “as a result of any accident” and the general terms and objectives of the policy. What is meant by the phrase, “as a result of any accident?” Does the policy refer to Vale’s sale of its product to the public as an accident? Does it refer to Sandra Smith’s mother’s ingestion of DES as an accident? Or is the phrase so specific and clear in its context to the remaining provisions of the policy as to exclude Sandra Smith’s vaginal adenosis from coverage under the Manufacturers’ policy issued to Vale. As to this, in these pre-trial proceedings, who can say? To ask the question is to reveal the glaring ambiguities contained in this inscrutable phrase, “as a result of any accident.”

This court has held that if it is determined that the language of a policy prepared by an insurer is either ambiguous, obscure, uncertain or susceptible to more than one construction, the language must be construed most strongly against the insurer, and the construction most favorable to the insured must be adopted. See Cohen v. Erie Indemnity Co., 288 Pa.Super. 445, 448, 432 A.2d 596, 597 (1981); see also Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (1983). It has also been held that if a policy is reasonably susceptible to two interpretations, it will be construed in favor of the insured in order not to defeat, without necessity, the claim to indemnity which the insured seeks to obtain. Armon v. Aetna Cas. & Sur. Co., 369 Pa. 465, 87 A.2d 302 (1952). In the instant case, there is an irrefutable clash between the phrase “as a result of any accident” and the clearly intended purpose of protection for the insured against claims of diseases arising out of use of its products.

The meaning of the provisional clause in this case, “as a result of any accident,” was not clearly drafted and was cumbersomely worded. In view of the potential variations, grades and origins of diseases that might arise out of the use of pharmaceutical products, the clause should have been more clearly explained in the policy in order to be binding. Klischer v. Nationwide Life Ins. Co., 281 Pa.Super. 292, 422 A.2d 175 (1980); see also Standard Venetian Blind Co. v. American Empire Ins. Co., supra.

In view of the foregoing, we find that the clause “as a result of any accident” is ambiguous and, therefore, cannot be considered as a refutation of the reasonable expectations of the insured.

Therefore, we find Manufacturers’ to be liable for the defense and possible indemnity of Vale in this case.

The Hartford Policy

Hartford issued a comprehensive personal liability policy to Vale which was effective December 1, 1977 to December 1, 1978, and which provided:

The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of bodily injuries or property damage, (emphasis added) The pertinent definitions appearing in the Hartford policy

are:

“Bodily injury” means bodily injury, sickness or disease sustained by any person which occurs during the policy period; including death at any time resulting therefrom ... (emphasis added)
“Occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.

There is no question in this case that diagnosis and manifestation of Ms. Smith’s cancerous condition in 1978 was the result of an “occurrence” which took place during Hartford’s policy coverage. The Hartford policy provided coverage for injuries taking place during the policy period and brought about by an occurrence. Hartford argues, however, that that occurrence was the injury caused by exposure to DES, the in utero cellular changes, and not the manifestation of the cancer diagnosed in 1978. In support of this argument, Hartford urges that this court is bound to accept the affidavit of its specialist and conclude that the “injury” caused by DES ingestion occurred in útero because no other medical evidence had been tendered as to this issue. At this stage in the proceedings, we need not make the factual decision urged by Hartford. As we previously stated, the obligation of an insurer to defend an action against the insured is fixed solely by the allegations of the complaint in the underlying cause of action. Wilson v. Maryland Casualty Co., supra. Ms. Smith alleged that she suffered an injury in 1978, during Hartford’s policy period. It is upon that factual allegation that we must interpret the meaning of Hartford’s policy.

The policy language clearly does not limit coverage to incidents of exposure during the policy period, but rather to conditions which result in bodily injury during the policy period. The fact that the policy places a time of occurrence clause in its definition of “bodily injury” and not in its definition of “occurrence” supports our conclusion that it was the intention of the parties to include coverage for a situation such as the one in this case. Based on the interpretation of very similar policy language, in a DES case, the Supreme Court of New York reached the same conclusion in American Motorists Ins. Co. v. E.R. Squibb & Sons, 95 Misc.2d 222, 406 N.Y.S.2d 658 (1978). See also Kremers-Urban Co. v. American Employers Ins. Co., su pra, (Court restricted its interpretation of coverage to the language of the insurance contracts.)

Hartford further attempts to avoid its obligation to Vale by arguing that Vale failed to establish the conditions precedent entitling it to enjoy the benefits of the Hartford policy. In particular, Hartford contends that Vale, prior to the Hartford policy, should have expected or anticipated Smith’s injury. As the policy provided for coverage of bodily injury “neither expected nor intended,” Hartford claims Vale failed to establish that it had no forewarning of the Smith claim. Thus, it is submitted that a material fact remained in dispute. Since a summary judgment should only be granted where there is no genuine issue of material fact, Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983); Williams v. Pilgrim Life Ins. Co., 306 Pa.Super. 170, 452 A.2d 269 (1982), Hartford contends summary judgment should not have been entered in Vale’s favor. Nevertheless, a careful reading of the pleadings does not support Hartford’s position. In paragraph ten of its amended complaint, Vale averred that it had “complied with all obligations required of it under the aforesaid insurance policy.” Hartford’s amended answer, paragraph ten “denied that [Vale had] satisfied all requirements of the Hartford Insurance policy entitling it to a defense as requested.” We fail to see how either pleading raised an issue as to Vale’s expectations of the Smith suit. Such was not placed in issue and therefore the trial court was not required to consider it. See Boyle v. Pennsylvania R. Co., 346 Pa. 602, 31 A.2d 89 (1943); McCormick v. Harris, 130 Pa.Super. 175, 196 A. 885 (1938).

We hold, for the reasons stated above, that both Manufacturers’ and Hartford are required to defend Vale in the underlying case and, if necessary, to indemnify Vale. Therefore, we affirm the lower court’s grant of summary judgment in favor of plaintiff and against both defendants.

Order affirmed.

      . Transamerica will be included in the term "Manufacturers’.”

      . Manufacturers’ and Hartford’s policies were issued in Pennsylvania and all terms were to be performed in Pennsylvania, making Pennsylvania law applicable. Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964).

      . The drug, DES, was prescribed for pregnant women to prevent possible spontaneous abortion and to enable them to carry their pregnancies to full term and also for treatment of estrogenic deficiencies. Although we do not consider the medical testimony taken in this case in our determination of the issues, since it must rest solely on the legal significance of the policies, we do take judicial notice of the nature and character of the effects of DES on a fetus in útero, as revealed by the medical testimony, i.e., that ingestion of DES by a woman during the first trimester of pregnancy may interfere with the normal process of tissue replacement on the vaginal walls of the female fetus. The resulting state of incomplete tissue replacement is known as vaginal adenosis, which is thought to create a disposition to the development, later in life, of clear cell adenocarcinoma of the vagina. It is known with reasonable medical certainty that adenosis occurs during the first trimester of pregnancy and, additionally, that the cells which later make the transition to adenocarcinoma arc present in the embryonic development by the end of the first trimester.

      . The issues in this case concern the proper construction of insurance policies. This is a matter of law. Adelman v. State Farm Mutual Auto Ins. Co., 255 Pa.Super. 116, 386 A.2d 535 (1978); Baldwin v. Magen, 279 Pa. 302, 123 A. 815 (1924). It is properly resolved by the court on motion for summary judgment in a declaratory judgment proceeding. Pa.R.C.P. 1035; Pa. P.U.C. Bar Association v. Thornburgh, 62 Pa.Cmwlth. 88, 434 A.2d 1327 (1981).

      . H.H. Porter Co., Inc. and Armstrong World Industries, Inc. were permitted to file after oral argument on amicus briefs.

      . In 1970 a statistical association was shown between the ingestion of DES by pregnant women and the occurrence of vaginal clear-cell adenocarcinoma (cancer) in the female offspring exposed in Utero to DES. See Herbst and Scully, Adenocarcinoma of the Vagina in Adolescence: A Report of 7 Cases Including 6 Clear Cell Carcinomas (so-called mesonephromas), 25 Cancer 745-57 (1970); See also Stafl and Mattingly, Vaginal adenosis: A Precancerous Lesion?, 120 Am.J. Obstet.Gynecol. 666-73 (1974).

      . In Cadwallader the court quoted extensively from the opinion of Judge LEARNED HAND in the case of Lee v. Aetna Casualty & Surety Co., 178 F.2d 750 (2d Cir.1949). Judge HAND’S cogent analysis bears repeating here.
      In finding the insurer obliged to defend a complaint filed against the insured which alleged an injury that "might or might not” be covered under the policy, Judge HAND, speaking for the court observed: “ ’... the injured party might conceivably recover on a claim, which, as he had alleged it, was outside the policy; but which, as it turned out, the insurer was bound to pay. Such is the plasticity of modern pleading that no one can be positive that that could not happen. In such a case of course the insurer would not have to defend; yet, even then, as soon as, during the course of the trial, the changed character of the claim appeared, we need not say that the insured might not insist that the insurer take over the defence. When, however, as here, the complaint comprehends an injury which may be within the policy, we hold that the promise to defend includes it.

      ******
      ‘It follows that, if the plaintiff’s complaint against the insured alleged facts which would have supported a recovery covered by the policy, it was the duty of the defendant to undertake the defence, until it could confine the claim to a recovery that the policy did not cover ...’ (Emphasis supplied.)” Cadwallader, 396 Pa. at 589-90, 152 A.2d at 488, quoting Lee, 178 F.2d at 752-53.

      . Cook County, Illinois is the locale of Ms. Smith's lawsuit against Vale.

      . The question has been faced by the Philadelphia Court of Common Pleas. See Crown Cork & Seal Co., Inc. v. Aetna Cas. & Sur. Co., No. 1292 September Term, (Philadelphia Court of Common Pleas, August 2, 1983) (Keene was adopted in an asbestos-related case).

      . See American Motorists Ins. Co. v. E.R. Squibb, 95 Misc.2d 222, 406 N.Y.S.2d 658 (Sup.Ct.1978); Ins. Co. of North America v. Forty-Eight Insulations, Inc., supra (asbestos-related disease cases). See Transamerica Ins. Co. v. Bellefonte Ins. Co., supra, where court found disease had taken place at time of ingestion and manifestation but in behalf of two different insureds.

      . Based on his view that an insurance policy is a contract of adhesion, Professor (now Judge) Keeton has suggested that construction of these contracts be guided by the following general principle:
      The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.
      Keeton, Insurance Law Rights at Variance with Policy Provisions, 83 Harv.L.Rev. 961, 967 (1970); Keene, 667 F.2d at 1042 n. 12.

      . Here, interestingly, the phrase “bodily injury ... caused by an occurrence” is substituted for the phrase “as a result of any accident” which appeared in the 1952-53 Manufacturers’ policy. This new wording was arrived at by insurance policy writers in the late 1960’s to avoid confusion brought about by the phrase “as a result of any accident” which appeared in the Manufacturers’ policy. See Elli Lilly v. Home Ins. Co., supra.

      . Such holding is especially appropriate here since Hartford itself moved for summary judgment contending that no material facts were in dispute.


author: PER CURIAM:

text:
    490 A.2d 905
    COMMONWEALTH of Pennsylvania v. Cheryl M. PARRISH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1984.
    Filed March 22, 1985.

      Basil J. Freeman, Port Allegheny, for appellant.
    David B. Acker, District Attorney, Coudersport, for Commonwealth, appellee.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from judgment of sentence following a guilty plea/plea bargain as to charges without specification as to the sentence. The charges and sentences were homicide by vehicle (11/2 — 3 years), driving under the influence (1 — 2 years consecutive to the homicide by vehicle sentence) and leaving the scene of an accident (6 — 12 months concurrent with the driving under the influence sentence). Appellant’s motion for modification of sentence was denied and she filed this timely appeal. Appellant, Cheryl Parrish, presents only one issue on appeal, that is, excessiveness of sentence in that the sentence imposed violates or exceeds the sentencing guidelines.

After careful consideration of the briefs, record and sentencing guidelines, we would agree with appellant that the sentence imposed is improper in that the guidelines were misapplied, the result being an excessively harsh and manifestly excessive sentence. We, therefore, reverse the trial court and vacate the judgment of sentence.

An analysis of the possible sentences for the three crimes in question is, necessarily, the first matter we will address. Homicide by vehicle, 75 Pa.C.S.A. § 3732, is a misdemeanor of the first degree. Applying the Sentencing Guidelines, 42 Pa.C.S.A. § 9721, 204 Pa.Code § 303.1 et seq., with an undisputed prior record score of 0, the suggested minimum sentencing range is 0 — 12 months, the mitigated sentence, non-confinement, and the aggravated minimum range, 12— 18 months. The statutory maximum for a misdemeanor of the first degree is 5 years. Appellant was sentenced to 11/2 —3 years — the most extreme sentence suggested under the aggravated range.

Leaving the scene of an accident, involving death or personal injury, 75 Pa.C.S.A. § 3742(a), is a misdemeanor of the third degree; the guidelines indicating 0 — 6 months in the minimum range, non-confinement in the mitigated minimum range, and the statutory limit — 1 year for misdemean- or Ill’s, is the aggravated range. Appellant was sentenced 6 — 12 months — the extreme end of the minimum range.

Driving under (the) influence of alcohol or controlled substance, 75 Pa.C.S.A. § 3731, is a misdemeanor of the second degree. The guidelines, written when drunk driving was a misdemeanor of the third degree, suggest a minimum sentence range of non-confinement to 6 months, a mitigated sentence of non-confinement and an aggravated sentence of six months. If one applies the statutory maximum for a misdemeanor of the second degree, it is 2 years and the mandatory sentences under 75 Pa.C.S.A. § 3731 provide: (i) not less than 48 hours for a first offense; (ii) not less than 30 days for a second offense; (iii) not less than 90 days for a third offense and (iv) not less than one year for a fourth offense. In this instance, appellant was sentenced to 1 — 2 years. The sentence is far beyond that suggested by the guidelines for D.U.I.; it is identical to the maximum mandatory sentence for a four-time offender and in this instance, appellant had no prior convictions of any kind.

Sentencing is a matter within the sound discretion of the sentencing court, and, generally, will not be disturbed absent an abuse of discretion. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Giffin, 279 Pa.Super. 264, 420 A.2d 1134 (1980). “If the sentence imposed is within the statutory limits, there is no abuse of discretion, unless the sentence is so manifestly excessive so as to inflict too severe a punishment.” Commonwealth v. Martin, 328 Pa.Super. 498, 503, 477 A.2d 555, 557 (1984) citing Commonwealth v. Garrison, 292 Pa.Super. 326, 437 A.2d 407 (1981).

Although none of the individual sentences imposed here are in excess of the statutory maximum, we find each of the individual sentences and hence, the cumulative sentence, to be so manifestly excessive so as to inflict too severe a punishment.

In the exercise of its discretion,

[t]he court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence, that is the minimum sentence, consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.

Commonwealth v. Wicks, 265 Pa.Super. 305, 310, 401 A.2d 1223, 1225 (1979). See also Commonwealth v. Martin, supra; Commonwealth v. Giffin, supra, Commonwealth v. Knight, supra and Commonwealth v. Martin, supra.

In this instance, we find a manifest abuse of discretion which requires a vacation of the sentence. Although the trial judge had before him the required pre-sentence report and fully considered it at the sentencing proceeding, and although he recognized the generally good character and reputation of the defendant, putting a clear and concise statement of his reasons for sentencing as he did on the record, we find that he failed to impose a sentence consistent with the protection of society and the rehabilitative needs of the defendant.

The record reveals Cheryl Parrish, age 27, had an impeccable record up to this time. She had no prior adult or juvenile arrests; she is separated from her husband and the mother of three children; she is gainfully employed with two jobs and at the time of sentencing had a possibility for alternative employment; she is active in her church and recently came to know Jesus Christ as her Savior (S.T. 52-55). The trial judge recognized all of these things and said “you enjoy things that seem to be healthy to enjoy and that would seem to take one in the right direction in life” (S.T. 55). Implicit in that statement would .seemingly be a recognition that there are many mitigating circumstances in this appellant’s case and that society need not be protected from Cheryl Parrish for the minimum 21/2 years the trial judge would have her incarcerated at the State Correctional Institution at Muncy. Unfortunately, however, the trial court did not recognize that his statements, standing alone, would indicate a necessity for only minimal, if any, incarceration in order to be consistent with the needs of society and the rehabilitative needs of appellant.

15] The crimes committed here are serious ones, the gravity of them not to be ignored — a young boy was killed, appellant was under the influence of alcohol and she did leave the scene of the accident. As grievous as these facts are, however, their severity will not be reduced nor will appellant be helped by a long period of incarceration. A court may not, as this trial court seemed to do, base its sentence upon the seriousness of the crime alone, Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979); Commonwealth v. Rooney, 296 Pa.Super. 288, 442 A.2d 773 (1982). The total picture must necessarily be examined and considered before a sentence of total confinement is imposed.

In addition to the excessive sentence imposed, we find fault in the trial court having accepted a guilty plea to driving under the influence and homicide by vehicle and then imposing a minimum sentence nearly equal to that which would have been the 3 year mandatory sentence for homicide by vehicle while driving under (the) influence (75 Pa.C.S.A. § 3735). While we, as the trial court did, recognize the plea bargain as, undeniably, an attempt to avoid the 3 year penalty, we, unlike the trial court, do not find it conscionable to then have the nearly identical sentence imposed. In fairness, the least one would expect the trial court to do was to inform the appellant that the likelihood of receiving a three year maximum sentence was as great under the charges pled to, as would be the case under the mandatory § 3735. The trial judge, in accepting the plea bargain, should have accepted it and applied it for what it was — a young mother with a previously unblemished record attempting to avoid or at least reduce the length of any possible jail time. Otherwise, he should have rejected it, as was his right, and permitted appellant to decide if her chances were better with a jury.

Appellant, Cheryl Parrish, does deserve to be punished for her actions but incarceration at Muncy is not the only alternative; a work release program with a substantial period of probation and, possibly, community service would appear to be more suitable. In this particular case, the loss the community has suffered by the death of one of its members would likely be exacerbated by the loss to appellant’s children by her prolonged imprisonment, and the loss occasioned by removing a wage earner from the community. Where a case requires a correction of sentence, this Court has the option of either remanding for resentencing, or amending the sentence directly. Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980) citing Commonwealth v. Portalain, 223 Pa.Super. 33, 297 A.2d 144 (1972).

An examination of the sentencing code, 42 Pa.C.S.A. § 9722-Order of probation and 42 Pa.C.S.A. § 9725-Total confinement, convinces us that while probation only may not be a reasonable sentence neither is an extensive period of total confinement. Under § 9722 there are 12 factors which, while not controlling, are to be accorded weight in favor of an order of probation:

(1) The criminal conduct of the defendant neither caused nor threatened serious harm.
(2) The defendant did not contemplate that his conduct would cause or threaten serious harm.
(3) The defendant acted under a strong provocation.
(4) There were substantial grounds tending to excuse or justify the criminal conduct of the defendant, though failing to establish a defense.
(5) The victim of the criminal conduct of the defendant induced or facilitated its commission.
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.
(8) The criminal conduct of the defendant was the result of circumstances unlikely to recur.
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.
(10) The defendant is particularly likely to respond affirmatively to probationary treatment.
(11) The confinement of the defendant would entail excessive hardship to him or his dependants.
(12) Such other grounds as indicate the desirability of probation.

At the minimum, the final 6 factors apply in this case and were ignored by the sentencing court.

Section 9725 states the following with regard to an imposition of total confinement:

The court shall impose a sentence of total confinement if, having regrad to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendent.

These 3 factors simply do not apply and cannot control the situation under review.

If we followed the sentencing guidelines applying the minimum range, the sentence at its lowest end would be probation and its highest, 24 months incarceration. Under the mitigated range, which might be considered here since the appellant has three children dependent on her and is her own and their sole support in addition to being respected in the community, the sentence would be probation, no incarceration called for. In our judgment, an appropriate sentence would be a period of six months incarceration in the county jail accompanied by work release followed by three year probation. Such a sentence could be fashioned in the following manner: Homicide by vehicle, 6 — 18 months in the county jail under a work release program, to be followed by 18 months probation for the D.U.I., to run concurrent with 12 months probation for leaving the scene of an accident involving death or personal injury, the probation sentences to commence at the completion of the 6 — 18 months sentence on the homicide by vehicle. We generally rely on the good judgment of the trial court to amend a manifestly excessive sentence on remand, see Commonwealth v. Smith, 257 Pa.Super. 435, 390 A.2d 1315 (1978); Commonwealth v. Spahn, 255 Pa.Super. 157, 386 A.2d 556 (1978); Commonwealth v. Riggins, 232 Pa.Super. 32, 332 A.2d 521 (1974), rev’d on other grounds, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Zelnick, 202 Pa.Super. 129, 195 A.2d 171 (1963), allocatur denied February 13, 1964, cert. denied, 377 U.S. 1006, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964), and we remand to the lower court for resentencing in conformity with the discussion above.

Judgment of sentence of the trial court is vacated and the case is remanded for resentencing in conformity with this Opinion. Jurisdiction relinquished.

      . Although both parties and the trial court have expressed concern over the court’s consideration of a police officer’s unsubstantiated statements contrary to appellant’s best interest made at sentencing, we need not reach that issue in view of our determination that the sentence was manifestly excessive.

      . Although both briefs and the trial court discuss the Superior Court Memorandum in Commonwealth v. Taylor, No. 703 Pittsburgh, 1983, the case is not mentioned in this Opinion as memoranda are not to be cited or relied upon as precedent.


author: WIEAND, Judge:

text:
    490 A.2d 910
    Alexander D. PERSON and Sharon D. London Person, his wife, Appellants, v. C.R. BAXTER REALTY COMPANY v. EDWARD P. CARROLL CONSTRUCTION COMPANY, LTD. Alexander D. PERSON and Sharon D. London Person, his wife, Appellants, v. Thomas R. SMITH and Margaret E. Smith, his wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Filed March 29, 1985.

      John P. Lawler, Stroudsburg, for appellants.
    Harry A. Vican, Stroudsburg, for appellee.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   WIEAND, Judge:

Alexander Person and Sharon Person, husband and wife, purchased from Thomas Smith and Margaret Smith, husband and wife, a residential dwelling in Monroe County. After the Persons had taken title and moved into the property, they discovered that the dwelling was structurally unsound. Not only was there an inadequate foundation, but there had also been extensive rotting of floor joists, wall studs and exterior sheathing. The roof also leaked. They commenced an action against the sellers alleging fraud and deceit for having failed to disclose the existence of structural defects. They also brought an action in assumpsit against Edward P. Carroll Construction, Co., Ltd., alleging that it had negligently performed a contract to inspect the structural condition of the dwelling prior to closing. The actions were consolidated for trial before a jury. At the close of the evidence, the trial court entered directed verdicts in favor of all defendants. This appeal followed. We reverse.

In Quashnock v. Frost, 299 Pa.Super. 9, 445 A.2d 121 (1982), this Court adopted the modern view “that where there is a serious and dangerous latent defect known to exist by the seller, then he must disclose such defect to the unknowing buyer or suffer liability for his failure to do so.” Id., 299 Pa.Superior Ct. at 17-19, 445 A.2d at 125 (footnotes omitted).

The plaintiff-appellants introduced evidence that the house was in danger of collapse. Mrs. Person, in fact, had fallen when a floor board broke under her foot. There was also evidence that the sellers had been aware of the defective condition of the home and had been attempting to “unload” it. The evidence showed that the sellers had not disclosed to the buyers that the home was structurally unsound.

A directed verdict can properly be granted by a court only if the facts are clear and free from doubt. Correll v. Werner, 293 Pa.Super. 88, 90, 437 A.2d 1004, 1005 (1981). In ruling on a motion for directed verdict, a court must “accept as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made and must reject all testimony and inferences to the contrary.” Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Super. 333, 339, 455 A.2d 637, 639 (1982). Accord: Correll v. Werner, supra.

When we review the record in this case and apply thereto the law existing in this Commonwealth, we are led inexorably to the conclusion that appellants’ evidence of fraud and deceit by the sellers was sufficient to create a jury issue. The trial court was in error, therefore, when it took the case from the jury and entered a directed verdict in favor of the seller-defendants.

The trial court also erred when it entered a directed verdict in favor of the contractor. The court entered the directed verdict, it explained, because it believed there had been no contract between the buyers and the contractor. This was erroneous.

The evidence showed that, after signing an agreement of sale, appellants had requested the realtor to obtain for them a contractor to inspect the premises prior to closing. The realtor obtained the services of the defendant, Edward P. Carroll Construction Co., Ltd., who inspected the premises and submitted a written report. This report, delivered to appellant-buyers by the realtor, opined that the property was in good condition. The contractor was paid for his inspection at the time of closing with moneys paid by the buyers. This evidence, if believed, was sufficient to show that the realtor had been acting as the buyers’ agent in employing the contractor to inspect the property being sold. This was particularly so in view of the fact that the contractor had been paid by the buyers. The testimony of the contractor’s president that the check had not been cashed and that the inspection had been made gratuitously was not an adequate reason for entering a directed verdict against the appellant-buyers. “Where inferences are not entirely clear, questions of agency are for the jury’s determination.” Schneider v. Albert Einstein Medical Center, Northern Division, 257 Pa.Super. 348, 365-366, 390 A.2d 1271, 1280 (1978). Accord: Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974). It was error, therefore, to enter a directed verdict in favor of the contractor on grounds that the buyers had not contracted directly with him.

Because there was evidence from which a jury could find liability against both sellers and contractor, it was improper to enter directed verdicts in their favor.

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

      . The realtor, C.R. Baxter, was also named as a defendant in this action, but he was subsequently excused and released.

      . The trial court rested its entry of a directed verdict, at least in part, on evidence produced by appellees that the building had been structurally sound. The court also expressed the opinion that the sellers had been truthful when they said they had had no knowledge of any defects. It was not within the province of the court to weigh the conflicting evidence when it ruled upon appellees’ motion for directed verdict. When it did so, it usurped the function of the jury.