author: WIEAND, Judge:

text:
    564 A.2d 988
    COMMONWEALTH of Pennsylvania v. John NOVAK, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 10, 1989.
    Filed Sept. 28, 1989.

      Chris Rand Eyster, Asst. Public Defender, Pittsburgh, for appellant.
    Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before BROSKY, WIEAND and KELLY, JJ.
   WIEAND, Judge:

John Novak was tried by a jury and was found guilty of aggravated assault and resisting arrest. On appeal from the judgment of sentence, he contends that the trial court erred in refusing to give an instruction to the jury on the crime of simple assault. We disagree and affirm.

On November 22, 1987, at approximately 9:50 p.m., Rochelle Brackney, a uniformed police officer, was sitting in a marked patrol car on the South Side of Pittsburgh, when she was approached by appellant. Appellant knocked on her window and asked for a cigarette and a light. He then removed a wallet from his trousers, threw it at the officer and into the squad car, and walked away. Officer Brackney radioed for assistance and pursued appellant on foot. After she had caught up with and attempted to question him, appellant shouted obscenities at her and made threatening remarks. When appellant continued in this manner despite warnings to desist, Officer Brackney placed him under arrest for disorderly conduct. Appellant pushed the officer against a parked car, threw her against a brick wall, and was “swinging and punching” at her when other officers arrived on the scene. Officer Brackney’s injuries included a cervical strain of her neck, pulled muscles in her back, and torn ligaments of her hands.

Appellant was charged with aggravated assault in violation of 18 Pa.C.S. § 2702(a)(3), as amended, as well as with resisting arrest and disorderly conduct. After the evidence had been presented at trial, defense counsel orally requested the court to instruct the jury on the crime of simple assault. The trial court refused to do so, and appellant contends that this was error.

Prior to 1987, a person was guilty of aggravated assault in violation of 18 Pa.C.S. § 2702(a)(3) if he “attempted] to cause or intentionally or knowingly cause[d] bodily injury to a police officer making or attempting to make a lawful arrest.” However, by amendment of Dec. 11, 1986, P.L. 1517, No. 164, § 1, effective in 60 days, the law was revised so that a person now commits the crime of aggravated assault when he “attempts to cause or intentionally or knowingly causes bodily injury to a police officer or firefighter in the performance of duty.” Appellant was charged with committing aggravated assault in violation of the amended statutory provision.

A person commits the crime of simple assault if he “attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.” 18 Pa.C.S. § 2701(a)(1). Simple assault has been held to be a lesser included offense of aggravated assault. See: Commonwealth v. Sirianni, 286 Pa.Super. 176, 428 A.2d 629 (1981); Commonwealth v. Frank, 263 Pa.Super. 452, 398 A.2d 663 (1979). As a general rule, a trial court should give a charge on a lesser included offense where there is any disputed evidence on an element of the greater offense. See: Commonwealth v. Channell, 335 Pa.Super. 438, 484 A.2d 783 (1984). However,

[t]here is no duty on the part of a trial judge to charge upon law which has no applicability to presented facts. Commonwealth v. Jordan, 407 Pa. 575, 584, 181 A.2d 310 (1962). If under the evidence presented in a criminal case the defendant must be found guilty of the offense charged or be entitled to an acquittal, the jury need not be instructed as to lower grades to which the evidence does not relate. Commonwealth v. Melnyczenko, 238 Pa.Super. 203, 208, 358 A.2d 98 (1976); Commonwealth v. Dessus, 214 Pa.Super. 347, 363-64, 257 A.2d 867 (1969), allocatur refused.

Commonwealth v. Showalter, 275 Pa.Super 1, 4, 418 A.2d 580, 582 (1980). See also: Commonwealth v. Thomas, 376 Pa.Super. 455, 546 A.2d 116 (1988); Commonwealth v. Coleman, 344 Pa.Super. 481, 496 A.2d 1207 (1985).

Appellant argues that a jury could have found that Officer Brackney had made an unlawful arrest and that under such circumstances appellant’s offense would have been simple assault. We reject this argument. Under the 1986 amendment, a lawful arrest is not an essential element to a violation of 18 Pa.C.S. § 2702(a)(3). All that is required is that the officer be “in the performance of duty.” The police officer in the instant case was in uniform and in the performance of her duties at the time of appellant’s assault. There was no contention otherwise. Under the circumstances of this case, therefore, the trial court was not required to instruct the jury on simple assault.

The trial court, in error, charged the jury on aggravated assault as defined pre-1987. This was a more favorable instruction than appellant was entitled to receive. Even under the pre-1987 statute, however, the trial court’s refusal to instruct the jury on simple assault was not error. Whether an arrest is legal is an issue of law for the court. Commonwealth v. Bartman, 240 Pa.Super. 495, 500, 367 A.2d 1121, 1124 (1976). See also: Commonwealth v. Crawford, 334 Pa.Super. 630, 483 A.2d 916 (1984); Common wealth v. Shannon, 320 Pa.Super. 552, 467 A.2d 850 (1983). In this case, Officer Brackney clearly had probable cause to believe that appellant was disturbing the peace, for she was present and heard appellant shouting obscenities in a public place despite warnings to desist. The statute, at 18 Pa.C.S. § 5503, provides that

“[a] person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) engages in fighting or threatening, or in violent or tumultuous behavior; (2) makes unreasonable noise; (3) uses obscene language, or makes an obscene gesture; or (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”

Appellant also contends that his trial counsel was ineffective for failing to make a written request for an instruction on simple assault. Because we have determined that there is no merit in appellant’s underlying claim, appellant’s ineffective assistance claim must also fail.

The judgment of sentence is affirmed.

      . The trial judge also found him guilty of disorderly conduct.

      . Novak was sentenced for aggravated assault to probation for four years, conditional upon outpatient mental health treatment. No further penalties were imposed on the other convictions.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    564 A.2d 990
    Frederick P. HESSENTHALER, F. Ernest McConnell, Ronald J. Cox, David P. Faucher, George R. Holl, and John L. Price, III, t/a Inven Associates v. Mehdi P. FARZIN and Marie R. Farzin, husband and wife, Appellants.
    Superior Court of Pennsylvania.
    Argued June 13, 1989.
    Filed Oct. 3, 1989.

      Thomas Caldwell, Harrisburg, for appellants.
    Robert F. Claraval, Harrisburg, for appellees.
    Before BROSKY, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order and decree nisi directing appellants to specifically perform their obligations under a land sales agreement dated November 17, 1985, and ordering them to convey the property at issue to appellees. Appellants contend that the court erred in directing specific performance because: (1) the court erroneously relied on oral testimony when it held that a memorandum existed sufficient to satisfy the Statute of Frauds; and (2) the only writing signed by appellants does not include the material term of financing. For the reasons that follow, we disagree, and accordingly, affirm the order and decree nisi.

From November 17, 1985 to December 5, 1985, appellants engaged Thomas Dougherty and Barbara Mikulak as real estate agents to help them sell their property, located at 6175-6185 Hocker Drive, Harrisburg, Pennsylvania. Appellant Marie Farzin indicated to her agents that she would accept an offer that consisted of $520,000 as a purchase price with a $220,000 second mortgage. Pursuant to those instructions, appellants’ agents met with appellees and drafted a sales agreement on November 17, 1985. The agreement was drafted exactly as appellant Marie Farzin instructed Thomas Dougherty to draft it. Appellees executed the agreement of November 17, 1985, as prepared by appellants’ agents. Thomas Dougherty told appellant Marie Farzin that if appellants wished to accept the offer of November 17, 1985 they were to send him a telegram confirming their acceptance. On November 19, 1985, appellant Marie Farzin sent Dougherty a mailgram confirming their acceptance. Dougherty then mailed the agreement of November 17, 1985 to appellants for signature. Appellants unilaterally attempted to add an additional term, collateral to the prior agreement. Appellees sued for specific performance of the November 17 agreement. Following a hearing on October 10, 1988, the court below held that a binding contract had been created, and by order dated December 8, 1988, directed appellants to specifically perform their obligations under the agreement, and convey the property to appellees. This appeal followed.

Appellant’s first argument is that the trial court erred because it relied on oral testimony in determining that a memorandum existed sufficient to satisfy the Statute of Frauds (the “Statute”), 33 P.S. § 1 et seq. The Statute requires that agreements for the sale of land be signed and in writing. This requirement can be met by creation of a written memorandum that need not consist of one single document. Target Sportswear v. Clearfield Found., 327 Pa.Super. 1, 10-11, 474 A.2d 1142, 1147-1148 (1984) allocatur denied (July 17, 1984). The Target court also quoted § 208 of the Restatement of Contracts, which sets forth the requirements for the validity of such a memorandum as follows:

The memorandum may consist of several writings,

(a) if each writing is signed by the party to be charged and the writings indicate that they relate to the same transaction, or
(b) though only one writing is signed if
(i) the signed writing is physically annexed to the other writing by the party to be charged, or
(ii) the signed writing refers to the unsigned writing, or
(iii) it appears from examination of all the writings that the signed writing was signed with reference to the unsigned writings.

Id., 327 Pa.Superior Ct. at 11, 474 A.2d at 1148 (quoting Restatement of Contracts § 208, at 283 (1932)). Cf. Restatement (Second) of Contracts § 132 (1981). The first question we must decide is whether or not the mailgram appellants sent to Dougherty constitutes a “signed” writing as contemplated by the Statute. Neither our research nor that of the parties has revealed any Pennsylvania cases that address the issue of whether or not a mailgram can be sufficient to satisfy the Statute. A consideration of the purpose served by the Statute, however, convinces us that the mailgram that was sent in this case is sufficient to constitute a signed writing.

The purpose of the Statute is to prevent the possibility of enforcing unfounded, fraudulent claims by requiring that contracts pertaining to interests in real estate be supported by written evidence signed by the party creating the interest. Burns v. Baumgardner, 303 Pa.Super. 85, 94, 449 A.2d 590, 594 (1982); see also Target Sportswear v. Clearfield Found., supra. Pennsylvania courts have emphasized that the Statute is not designed to prevent the performance or enforcement of oral contracts that in fact were made. See Beeruk Estate, 429 Pa. 415, 418-19, 241 A.2d 755, 758 (1968) (quoting Corbin on Contracts § 498, at 680-681 (1950)); Axler v. First Newport Realty Investors, 279 Pa. Super. 14, 17, 420 A.2d 720, 722 (1980). Therefore, the Beeruk Court noted,

we should always be satisfied with ‘some note or memorandum’ that is adequate ... to convince the court that there is no serious possibility of consummating fraud by enforcement. When the mind of the court has reached such a conviction as that, it neither promotes justice nor lends respect to the statute to refuse enforcement because of informality in the memorandum or its incompleteness in detail.

Beeruk Estate, supra 429 Pa. at 425, 418-19, 241 A.2d 755 at 758 (quoting Corbin on Contracts § 498, at 680-81 (1950)); see also Target Sportswear v. Clearfield Found., supra 327 Pa.Super. at 13-14, 474 A.2d at 1148-1149; Axler v. First Newport Realty, supra.

Turning to the specific question before us, we should emphasize that there is no requirement in the Statute or the decisional law that a signature be in any particular form. Instead, the focus has been on whether there is some reliable indication that the person to be charged with performing under the writing intended to authenticate it. Thus, for example, the Restatement (Second) of Contracts provides that:

The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer.

Id. at § 134 (emphasis supplied); see also Restatement of Contracts § 210, at 287 (1932) (“The signature to a memorandum under the Statute may be written or printed and need not be subscribed at the foot of the memorandum, but must be made or adopted with the declared or apparent intent of authenticating the memorandum as that of the signer.”). Similarly, the courts have refused to require a specific form of signature, so long as there is some indication that the “signer” intended to authenticate the memorandum. See, e.g., Denunzio Fruit Co. v. Crane, 79 F.Supp. 117 (S.D.Cal.1948), aff'd 188 F.2d 569 (9th Cir.1951), cert. denied 342 U.S. 820, 72 S.Ct. 37, 96 L.Ed. 620 (1951) (where agent agreed to sale by teletype, writing bearing mark of agent satisfied Statute); Smith v. Ostly, 53 Cal.2d 262, 1 Cal.Rptr. 340, 347 P.2d 684 (1959) (printed name ordinarily may be adopted as signature, and need not necessarily appear at end of document); Irving v. Goodimate Co., 320 Mass. 454, 70 N.E.2d 414 (1946) (memorandum is sufficient under Statute if signed by person to be charged by printed, stamped or typewritten signature, and if in signing he intended to authenticate paper as his act); Radke v. Brenon, 271 Minn. 35, 134 N.W.2d 887 (1965) (action for specific performance of alleged oral contract; held: written memorandum containing parties' names, map of land and terms of offer satisfied Statute); Hansen v. Hill, 215 Neb. 573, 340 N.W.2d 8 (1983) (typewritten signature may satisfy Statute if signer’s intent to authenticate memorandum is shown); Frohn v. Central Trust Co., 72 N.E.2d 303 (Ohio, 1946) (for purposes of Statute, instrument may be validated by party in any manner which indicates intention to be bound thereby, and may be signed with typewriter if intention is to sign it); Matthews v. Deane, 201 N.J.Super. 583, 493 A.2d 632 (Ch.Div.1984) (although Statute does not define “signature,” signature is that which party intends to be his signature); Weber v. DeCecco, 1 N.J.Super. 353, 356, 61 A.2d 651, 653 (Ch.Div.1948) (“typewritten or printed names, signatures in ink or pencil, or any name or symbol used by a party with the intention of constituting it his signature, is sufficient to comply with the statutory requirements.”) (citations omitted). We agree with these authorities that the proper, realistic approach in these cases is to look to the reliability of the memorandum, rather than to insist on a formal signature.

Applying these principles to the case at bar, it is clear that the mailgram sent by appellants constitutes a signed writing. The mailgram states, in its entirety: “We, Dr. Mehdi and Marie Farzin, accept the offer of $520,000 for our property at 6175 and 6185 Hocker Drive Harrisburg, Pennsylvania.” The detail contained in this mailgram is such that there can be little question of its reliability. Appellants were careful to begin the mailgram by identifying themselves. They then made certain that their intention would be properly understood by declaring their acceptance, and identifying both the property and the consideration involved. In light of the primary declaration of identity, combined with the inclusion of the precise terms of the agreement, we are satisfied that the mailgram sufficiently reveals appellants’ intention to adopt the writing as their own, and thus is sufficient to constitute a “signed” writing for purposes of the Statute. Moreover, this result is consistent with the holdings of courts in other jurisdictions that have addressed the question of whether or not a telegram can be a signed writing for purposes of the Statute. See Hillstrom v. Gosnay, 188 Mont. 388, 614 P.2d 466 (1980) (typewritten name of seller on telegram accepting offer to buy property was sufficient signature to satisfy Statute); Yaggy v. B.V.D. Co., 7 N.C.App. 590, 173 S.E.2d 496 (1970) (printing of defendant’s name on telegram accepting offer to purchase property was sufficient to satisfy Statute).

The next question we must decide is whether or not the mailgram was signed with reference to the unsigned writing in question, i.e., the sales agreement of November 17, 1985. Appellants argue that the court’s finding that the mailgram was signed with reference to the unsigned agreement of November 17, 1985, was improperly based on oral evidence. Absent an error of law or an abuse of discretion, this court is bound by the trial court’s findings of fact. Ecksel v. Orleans Const. Co., 360 Pa.Super. 119, 133, 519 A.2d 1021, 1028 (1987). Upon review of the record we are satisfied that there is sufficient evidence to support such a finding without relying on the oral testimony presented. A comparison of the memo and the sales agreement leaves little question that the “signed” mailgram was written with reference to the unsigned November 17 sale agreement. The agreement, like the memo, identifies Dr. Mehdi and Marie Farzin as the sellers, lists the address of the property as 6175-6185 Hocker Drive and sets the purchase price at $520,000. We note that the November 17 agreement included supplemental terms as well, such as the type of financing to be used in the deal, provisions regarding the zoning of the property, the duration of the mortgage, and the condition of the water and sewer and municipal improvements. Because the record evidence supports the court’s conclusion that the mailgram was signed in reference to the agreement of November 17, the requirements of the Restatement of Contracts § 208(b)(iii) are met and the writings are a sufficient written memorandum for purposes of the Statute.

Appellants next contend that the only writing they signed did not include the material term of financing, and because of that fact, it does not satisfy the Statute. We disagree. A writing required by the Statute of Frauds need only include an adequate description of the property, a recital of the consideration and the signature of the party to be charged. American Leasing v. Morrison Company, 308 Pa.Super. 318, 454 A.2d 555 (1981). Here, the mailgram contained the address of the property, the price of the property and the Farzins’ signatures. Moreover, the financing terms appellants claim they did not agree to are included in the November 17 agreement, which we have concluded appellants accepted by their mailgram. Accordingly, we find that there is sufficient evidence to support the court’s determination that appellants agreed to those terms.

For the above-stated reasons, we conclude that appellants’ claims that there was no memorandum sufficient to satisfy the Statute of Frauds and that the writing signed by them did not include a material term are meritless. Accordingly, we affirm the order and decree nisi.

Order and Decree affirmed.

      . The Statute provides:
      From and after April 10, 1772, all leases, estates, interests of freehold or term of years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents, thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding; except, nevertheless, all leases not exceeding the term of three years from the making thereof; and moreover, that no leases, estates or interests, either of freehold or terms of years, or any uncertain interest, of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall, at any time after the said April 10, 1772, be assigned, granted or surrendered, unless it be by deed or note, in writing, signed by the party so assigning, granting or surrendering the same, or their agents, thereto lawfully authorized by writing, or by act and operation of law.
      33 P.S. § 1.

      . It is not disputed that the mailgram is a writing for purposes of the Statute.

      . Although the issue is one of first impression in Pennsylvania, these types of questions are likely to arise with greater frequency in the future, as businesses and individuals increasingly rely on similar methods of negotiation such as electronic mail, telexes and facsimile machines in conducting their business affairs.

      . We find further support for our conclusion in Professor Corbin’s treatise on Contracts. Corbin writes:
      If the name is written or printed in the body of the document as part of the recital identifying the contracting parties, it is held not to be a signature in the absence of other evidence of intention. But, if the document begins "I, James Crockford, agree .." the name may be taken to be a sufficient signature without other evidence.

        Corbin on Contracts, Vol. 2, Section 521 (emphasis added). We note that the language of appellants’ mailgram almost exactly parallels the language Corbin approved in his treatise.

      . Appellants also contend that there was no memorandum sufficient to satisfy the Statdte because the real estate agent who listed the property read the offer to appellants and then delivered appellants’ mailgram to appellees. Because we have found that a memorandum exists for purposes of the Statute, this argument must fail.


author: OLSZEWSKI, Judge:

text:
    564 A.2d 995
    Aliette S. HORN, Appellee, v. Ronald A. HORN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 14, 1989.
    Filed Oct. 2, 1989.

      Gary Kalmeyer, Pittsburgh, for appellant.
    Mark Mansour, Asst. Public Defender, Greensburg, for appellee.
    Before OLSZEWSKI, MONTEMURO and HOFFMAN, JJ.
   OPINION BY

OLSZEWSKI, Judge:

This is an appeal from the denial of a request for reduction of spousal support. The background of this case is somewhat convoluted. The court of common pleas entered an order requiring appellant to pay appellee $700 per month in spousal support. Subsequently, appellant and appellee became entangled in divorce litigation, filed separately at a different term of court. The divorce litigation was bifurcated, and the judge in that action ordered “that the Order of Support entered at No. 1104 of 1984, D.R. 36349 shall continue as Alimony Pendente Lite.”

Appellant then filed the present action, a request for reduction of support. The court of common pleas denied the request, noting that a decision in the divorce action is “imminent” and “will resolve ... the issue of alimony.” This appeal followed.

The only issue properly before the trial court was the issue of spousal support. The trial court’s opinion addresses the issue of alimony pendente lite, rather than spousal support; accordingly, this appeal must be dismissed and the case remanded for a hearing and findings on the issue of spousal support.

This Court has repeatedly held that spousal support and alimony pendente lite are distinct concepts. See generally, Prozzoly v. Prozzoly, 327 Pa.Super. 326, 475 A.2d 820 (1984); Wargo v. Wargo, 184 Pa.Super. 587, 136 A.2d 163 (1957). The duty to provide spousal support is derived from marital obligations, White v. White, 226 Pa.Super. 499, 313 A.2d 776 (1973), and that duty terminates when the marriage does, Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). Spousal support is designed to ensure the dependent spouse a reasonable living allowance. Levine v. Levine, 360 Pa.Super. 297, 301, 520 A.2d 466, 468 (1987). The duty to provide alimony pendente lite arises upon the commencement of litigation and continues until all of the economic issues are settled. Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983). Alimony pendente lite is designed to allow a dependent spouse to pursue the divorce litigation, Keller v. Keller, 275 Pa.Super. 573, 419 A.2d 49 (1980). Spousal support and alimony pendente lite are not mutually exclusive, Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983), nor interdependent, Keller v. Keller, 275 Pa.Super. 573, 419 A.2d 49 (1980) (support obligation ended, but alimony pendente lite obligation continued).

The trial court’s opinion and appellant’s brief address the issue of alimony pendente lite, rather than spousal support. The issue of alimony pendente lite is part of the divorce action at No. 1944 of 1985D; the trial court had no authority to address that issue. Cf. Pa.R.Civ.P. 1910.18 (proceedings to modify or terminate support must be brought in the court which entered the order). Instead, the trial court should have addressed the appropriateness of continuing the $700 per month spousal support award, given the fact that the marriage has been terminated. This appeal is therefore dismissed and remanded to the trial court for appropriate proceedings.

Appeal dismissed. Remanded for hearing and findings on request for reduction of support. Jurisdiction relinquished.

      . No. 1944 of 1985D in the Court of Common Pleas of Westmoreland County.

      . This purported "conversion” may be the source of the confusion in the present action. In appropriate circumstances, a support order can be converted to alimony pendente lite, Levine v. Levine, 360 Pa.Super. 297, 301, 520 A.2d 466, 467 (1987); Desch v. Desch, 329 Pa.Super. 22, 24, 477 A.2d 883, 884 (1984); however, this can only be done by the court which entered the support order. See Pa.R.Civ.P. 1910.18.

      . This distinction was not undermined by our holding in Ritter v. Ritter, 359 Pa.Super. 12, 16, 518 A.2d 319, 321 (1986). Ritter merely recognized that spousal support and alimony pendente lite are indistinguishable for the purpose of determining appealability.


author: DEL SOLE, Judge:

text:
    564 A.2d 996
    JOSEPH PALERMO DEVELOPMENT CORP., Appellant, v. Thomas BOWERS, Appellee.
    Superior Court of Pennsylvania.
    Argued June 6, 1989.
    Filed Oct. 11, 1989.

      Dennis V. Williams, Erie, for appellant.
    John P. Eppinger, Erie, for appellee.
    Before CAVANAUGH, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This is an appeal from an order granting Appellee, Thomas Bowers’ petition to open confessed judgment. Judgment by confession had been entered against Mr. Bowers, in November, 1987. Within thirty (30) days of this judgment, the petition to open was filed. The trial court found that Mr. Bowers had acted promptly and that there existed legitimate factual disputes which required opening the judgment for determination of the issues by a jury.

On appeal, Appellant, Joseph Palermo Development Corp. [Palermo], claims that the trial court erred in finding that Mr. Bowers produced evidence in support of a meritorious defense which raised issues of fact susceptible to jury determination. Pa.R.C.P. No. 2959(e). However, we need not decide this issue because we find that no appeal as of right may be taken from the trial court’s order opening the confessed judgment. Pa.R.A.P., Rule 311(a)(1), 42 Pa.C.S.A. Rather, we hold that this appeal should be quashed because it is interlocutory and premature.

Although neither party has raised the issue of the propriety of this appeal, it is well settled that this court may sua sponte raise a question as to its own jurisdiction. Brady Contracting Co., Inc. v. West Manchester Township, 338 Pa.Super. 144, 487 A.2d 894 (1985); Karpe v. Borough of Stroudsburg, 290 Pa.Super. 559, 434 A.2d 1292 (1981). Although prior to the recent amendments to Rule 311(a)(1) an interlocutory appeal as of right was available to a litigant if the trial court had ordered a judgment opened, this is no longer the case. Under the new Rule, which became effective July 1, 1989, only an order refusing to open, vacate or strike off a judgment is immediately appeal-able.

This amended Rule 311 is consistent with the general principle embodied in Pa.R.A.P., Rule 341, 42 Pa.C.S.A., that an appeal may be taken as of right from any final order which ends litigation, or disposes of an entire case, or effectively puts certain parties out of court, or is an issue which if review were postponed would result in the irreparable loss of the claim. See, Hankin v. Hankin, 338 Pa.Super. 442, 487 A.2d 1363; Foukle v. Lavelle, 454 A.2d 56, 308 Pa.Super. 131 (1982)

An order opening judgment, as in the instant case, does not end the litigation, nor preclude participation by certain parties in the litigation, nor result in the irreparable loss of the claim. On the contrary, this order opens up the possibility of further litigation between the parties, while causing neither irreparable loss nor prejudice to Appellant. Review of the correctness of the trial court’s action in opening the judgment is merely postponed to a later date. As such, we find that the order opening judgment is not a final order, and it should be quashed because it remains unripe for appeal.

In the instant case the petition to open judgment was filed prior to the effective date of amended Rule 311. We are mindful of the fact that this court has sometimes declined to apply a new or amended procedural rule to actions commenced prior to the effective date of the adoption or amendment of the rule. See, Canter v. Canter, 238 Pa.Super. 347, 357 A.2d 659, 666 n. 9 (1976) (rule of civil procedure pertaining to standards for opening confessed judgment was amended after institution of suit to open, amended rule was held not to apply to case at bar); Giacco v. Pampena, 318 Pa.S. 376, 465 A.2d 3 (1983) (court declined to apply amended Rule of Civil Procedure 4003.5 concerning discovery of expert testimony because action was instituted prior to effective date of amended Rule).

However, there are several reasons for applying the amended Rule 311 to the instant case. First, the order adopting amended Rule 311 states that insofar as it is just and practicable new Rule 311 shall govern all matters pending at the time the rule becomes effective, July 1,1989. This case was pending on appeal as of the effective date of the Rule, and insofar as this amendment has the procedural effect only of postponing consideration of Appellant’s claim, it does not enlarge or abolish any substantive rights of the parties. Hence, there is no injustice in applying the Rule to this case.

Secondly, amended Rule 311 is a rule of appellate procedure, while in those cases where this court declined to apply an amended rule, the rule in question was a rule of civil procedure. There is a stronger argument to be made for finding that the procedural rights derived from the rules of civil procedure are determined by the law in force when the action is initiated, not only because Pa.R.C.P. No. 152 provides that the new provisions of an amended rule shall be construed as effective only from the date when the amendment becomes effective, but also because of the injustice inherent in changing the rules in the middle of the game when the parties are relying on certain procedures. However, the change in Rule 311, affects the litigants only upon appeal, not at the commencement of the case, and hence it is not unfair to apply this Rule to pending cases.

Therefore, for all of the above reasons we find that Appellant may not take an appeal as of right from this order granting Mr. Bowers’ petition to open confessed judgment. Rather, we hold that Pa.R.A.P. 311(a)(1) as amended, effective July 1, 1989, applies to all cases pending on appeal on the effective date unless to deny review would result in the irrevocable loss of a litigants’s rights. Therefore, we quash this appeal from the order opening the confessed judgment and remand the matter to the trial court. Jurisdiction relinquished.


author: CIRILLO, President Judge:

text:
    564 A.2d 1263
    Sandra C. NEWKIRK, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Charles G. Newkirk.
    Superior Court of Pennsylvania.
    Argued May 18, 1989.
    Filed Aug. 8, 1989.
    Reargument Denied Oct. 20, 1989.

      Mark H. Scoblionko, Allentown, for appellant.
    Eugene J. Maginnis, Philadelphia, for United Services, appellee.
    Before CIRILLO, President Judge, and ROWLEY and HESTER, JJ.
   CIRILLO, President Judge:

The issue presented in this appeal is whether a “class one” beneficiary, who was injured in a motor vehicle accident involving only the insured’s vehicle, is precluded from recovering both liability and underinsured motorist coverage under an automobile insurance policy which excludes family-owned vehicles from the definition of underinsured vehicles.

Appellant, Sandra C. Newkirk, was riding as a passenger in a car owned and operated by her husband, Charles Newkirk, when her husband lost control of the car. The car went off the roadway and struck three tree trunks. While Mrs. Newkirk survived the crash, she sustained serious personal injuries.

Mr. Newkirk was insured at the time of the crash by appellee, United States Automobile Association (USAA). His policy with USAA provided him with $300,000 of liability coverage per person. An exception in the policy, however, limited liability coverage for bodily injury sustained by family members to $15,000.

Mrs. Newkirk filed suit against her husband in the Court of Common Pleas of Lehigh County to recover for the injuries she sustained in the accident. On behalf of Mr. Newkirk, USAA tendered a settlement offer to Mrs. New-kirk in the amount of $15,000. This figure represented the maximum amount of liability coverage provided for family members under Mr. Newkirk’s policy with USAA. Mrs. Newkirk refused to accept USAA’s settlement offer.

Mrs. Newkirk subsequently made a settlement demand to USAA for $300,000, which was the maximum amount of underinsured motorist coverage available per person under Mr. Newkirk’s policy. USAA rejected this demand based on the following definition provision in its policy (hereinafter referred to as the “family car exclusion”):

[N]either “uninsured motor vehicle” nor “underinsured motor vehicle” includes any vehicle ... [ojwned by or furnished or available for the regular use of you or any family member.

Mrs. Newkirk then filed the instant action against USAA in the Court of Common Pleas of Lehigh County, seeking a declaration of her right to recover underinsured benefits pursuant to her husband’s policy with USAA. When pleadings closed, the parties filed cross-motions for summary judgment. Both parties agreed that there were no disputed issues of fact to be resolved and that the only issue in dispute was whether Mrs. Newkirk was potentially entitled to receive underinsured motorist benefits for her injuries under Mr. Newkirk’s policy with USAA.

On December 8, 1988, the Honorable John E. Backenstoe ruled that Mrs. Newkirk was not entitled to underinsurance coverage pursuant to her husband’s insurance policy, and entered an order denying Mrs. Newkirk’s motion for summary judgment and granting USAA’s motion for summary judgment. Shortly thereafter, Mrs. Newkirk filed this appeal.

The issue raised in this appeal is an issue of first impression which was specifically left unanswered by our court en banc in Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa.Super. 51, 535 A.2d 1145 (1988). In Wolgemuth, we addressed the issue of whether a guest passenger injured in a single vehicle accident, who had already recovered the maximum amount of liability coverage under the insurance policy carried by the host of the vehicle, was entitled to recover underinsured motor vehicle coverage under the same policy. The policy, like the policy at issue in the present case, excluded family cars from the definition of underinsured motor vehicles.

The appellant in Wolgemuth argued that because the legislature made underinsured motorist coverage mandatory, any policy provision such as the family car exclusion, which operates to deny a claimant underinsured motorist benefits, violates the public policy of this Commonwealth. Id., 370 Pa.Superior Ct. at 56, 535 A.2d at 1147. We rejected this argument, finding that it was based on a misapprehension of the nature of underinsured motorist coverage.

In reaching this conclusion, we reviewed the history behind the legislature’s decision to make underinsured motorist coverage mandatory. We explained that prior to the passage of the MVFRL, “underinsured motorist coverage, unlike uninsured motorist coverage, was not required in Pennsylvania or regulated by statute.” Id., 370 Pa.Superior Ct. at 56, 535 A.2d at 1148. Because of this, those claimants who purchased uninsured motorist coverage were in a better position when they were involved in a car accident with an uninsured tortfeasor rather than an under-insured tortfeasor. If they were hit by an uninsured tortfeasor, they could recover from their uninsured motorist benefits; however, if they were hit by an underinsured tortfeasor, they could not recover from that coverage but were limited to recovering the minimal amount of benefits available to them under the tortfeasor’s insurance. The legislature enacted the underinsured motorist coverage in the MVFRL to resolve this anomaly.

With this history in mind, we expounded on the purpose of underinsured motorist coverage:

The purpose of underinsured motorist coverage is to protect the insured (and his additional insureds) from the risk that a negligent driver of another vehicle will cause injury to the insured (or his additional insureds) and will have inadequate liability coverage to compensate for the injuries caused by his negligence. Thus, an insured who purchases $100,000.00 of liability coverage to protect others from his negligence, must, by law, be offered the option of purchasing up to $100,000.00 of underinsured motorist coverage to protect himself and his additional insureds from the risk that they will be severely injured by a negligent driver who has liability coverage in an amount insufficient to fully compensate them for their injuries. '

Id., 370 Pa.Superior Ct. at 58, 535 A.2d at 1149 (emphasis in original). We also noted that the language utilized by the legislature in section 1731(c) of the Motor Vehicle Financial Responsibility Law (MVFRL) suggests that underinsured motorist coverage requires the existence of at least two policies of motor vehicle insurance. Id. Discussing this observation, we stated:

An underinsured motor vehicle, must, by definition, be an insured vehicle. Thus, the statute contemplates one policy applicable to the vehicle which is at fault in causing the injury to the claimant and which is the source of the liability coverage (which is ultimately insufficient to fully compensate the victim), and a second policy, under which the injured claimant is either an insured or a covered person. It is the second policy which the statute contemplates as the source of underinsured motorist coverage, where the liability coverage provided by the first policy of insurance is insufficient to fully compensate the claimant for his injuries.

Id. Based on our findings, we held that the public policy of this Commonwealth was not violated by the exclusion of vehicles owned, furnished, or available for the regular use of an insured or the insured’s family from the definition of underinsured vehicles.

We narrowed our holding in Wolgemuth, however, by including the following comments in our discussion:

We are not here asked to determine, and express no opinion upon, whether an insured, as that term is defined by the Motor Vehicle Financial Responsibility Law, could, under certain circumstances, recover under both the liability and underinsured motorist provisions of a single policy. [The passenger of the host vehicle in this case] was a class two beneficiary of the policy issued by appellee Harleysville. As a class two beneficiary, Gail M. Wolgemuth had no recognizable contractual relationship with the insurer of the vehicle, had paid no premiums for such coverage, and had no reasonable expectations as to coverage under the policy issued by appellee. To permit appellant to recover underinsured motorist benefits under the circumstances of this case would be to convert essentially first party underinsured motorist coverage into third party liability coverage.

Id., 370 Pa.Superior Ct. at 59-60, 535 A.2d at 1149-50 (footnote omitted). With the inclusion of these comments, we expressly limited the applicability of our holding in Wolgemuth to class two beneficiaries and specifically left open the question with which we are now presented, namely whether a class one beneficiary such as Mrs. Newkirk could recover underinsured motorist benefits under the same insurance policy from which she received liability benefits.

Mrs. Newkirk contends that we should answer this question in the affirmative. The rationalization she uses to convince us to adopt this position is based in part on the passage from Wolgemuth which we quoted directly above.

Mrs. Newkirk argues that her status as a class one beneficiary distinguishes her in several respects from the passenger claiming underinsured coverage in Wolgemuth. As a class one beneficiary, she states, she had a recognizable contractual relationship with USAA. In addition, unlike the passenger in Wolgemuth, she and her husband paid premiums to USAA for the coverage from which she now seeks to recover. Moreover, she and her husband had a reasonable expectation that she was entitled to coverage under her husband’s policy with USAA. These differences between the passenger in Wolgemuth and herself, she asserts, render the reasoning which we utilized in Wolgemuth to uphold the validity of the “family car exclusion” inapplicable in determining the validity of the exclusion in this case.

Mrs. Newkirk states that in this case it would be unconscionable to uphold the validity of the “family car exclusion” because it would allow USAA to refrain from paying underinsured motorist benefits despite full premiums having been paid for that coverage. In addition, if the exclusion is enforced, she asserts, the scheme provided by the MVFRL which requires underinsured motorist coverage to be contained in all policies issued in Pennsylvania would be defeated. Furthermore, section 1731(a) of the MVFRL would be violated since coverage would not be provided by USAA in an amount equal to the liability coverage provided under its policy. Consequently, she states, this court must rule that the “family car exclusion” in her husband’s policy with USAA is unenforceable, and hold that she is entitled to recover underinsured motorist benefits for her injuries under USAA’s policy.

Having reviewed the record, the MVFRL, and relevant case law, we find ourselves unpersuaded by these arguments and hold, accordingly, that Mrs. Newkirk is not entitled to recover underinsured benefits pursuant to the same policy from which she recovered liability coverage. We reach this conclusion for several reasons.

First, Mrs. Newkirk’s assertion that it would be unconscionable for us to uphold the “family car exclusion” in Mr. Newkirk’s policy because it would allow USAA to refrain from paying underinsured motorist benefits despite full premiums having been paid for such coverage is specious. While the Newkirks may have paid their premiums in full for Mr. Newkirk’s policy with USAA, they paid only for that coverage which is provided for in the policy. Mr. Newkirk’s policy specifically excludes automobiles owned by Mr. Newkirk or any family member from the definition of underinsured vehicles. Thus, contrary to Mrs. Newkirk’s contention, the Newkirks did not pay USAA for the coverage which Mrs. Newkirk is now seeking to recover.

In addition, the language employed by USAA to exclude family cars from the definition of underinsured vehicles in Mr. Newkirk’s policy is clear, unambiguous and conspicuous. Any expectation, therefore, which the Newkirks had that they were paying for underinsured motorist coverage under the circumstances present in this case was unreasonable. See Votedian v. General Accident Fire and Life, 330 Pa.Super. 13, 17, 478 A.2d 1324, 1326 (1984) (when policy expressly denies coverage, it would be disingeneous, if not absurd, to hold that insured has a “reasonable expectation” that he or she is covered). See also Neil v. Allstate Insurance Company, 379 Pa.Super. 299, 311, 549 A.2d 1304, 1309-10 (1988) (“Where coverage is clearly worded and conspicously displayed, failure to read a limitation or to understand it is no defense.”)

Furthermore, the arguments which Mrs. Newkirk makes with regard to the MVFRL are meritless. She argues that the family car exclusion in her husband’s policy should be declared void because its enforcement would defeat the purpose of the underinsured motorist coverage provisions of the MVFRL, which requires underinsured motorist benefits to be contained in all policies issued in Pennsylvania. She asserts more specifically that the enforcement of the “family car exclusion” would violate section 1731(a) of the MVFRL since underinsured motorist coverage would not be provided in her husband’s policy in an amount equal to the liability coverage. These arguments are similar to those arguments regarding the MVFRL which we thoroughly discussed and rejected in Wolgemuth. They are different in only one respect.

In Wolgemuth, our enforcement of the “family car exclusion” did not deny underinsured motorist coverage to the appellant, but rather required him to pursue such benefits through a policy of insurance under which the passenger of the host vehicle was insured. In this case, however, our enforcement of the exclusion provision in Mr. Newkirk’s policy will prevent Mrs. Newkirk from recovering any underinsured motorist benefits to compensate her for her injuries. The reason for this difference is that Mrs. New-kirk is insured for automobile accidents through her husband’s policy with USAA. Unlike the passenger in Wolge muth, she has no automobile insurance policy of her own.

This difference in the results of our enforcement of the “family car exclusion” in Wolgemuth and in this case, however, does not render our analysis of the exclusion provision in Wolgemuth inapplicable to this case. When the legislature created the underinsured motorist coverage provisions of the MVFRL, they simply did not intend for an individual to recover third party liability benefits and first party underinsured motorist benefits from the same automobile insurance policy. See Wolgemuth, 370 Pa.Super. at 56-61, 535 A.2d at 1148-50 (1988).

As we explained in Wolgemuth, our legislature enacted underinsured motorist coverage to resolve the inequities which resulted when only uninsured motorist coverage was mandatory and a claimant who had purchased uninsured motorist coverage was involved in a car accident with an underinsured motorist rather than an uninsured motorist. Our legislature thus intended underinsured motorist coverage to operate in the same manner as uninsured motorist coverage only for motorists who were injured by underinsured motorists.

With uninsured motorist coverage, a claimant cannot recover third party liability benefits and uninsured motorist coverage from a tortfeasor’s policy of insurance. The reason for this is clear. If the tortfeasor has third party liability coverage from which the claimant can recover, then the tortfeasor is not uninsured and the claimant is not eligible to recover any uninsured motorist benefits. See 75 Pa.C.S. § 1701 (uninsured motor vehicle is a motor vehicle for which there is no liability insurance). When the claimant is entitled to recover uninsured motorist benefits because the tortfeasor is uninsured, the claimant recovers those benefits through his or her own policy of insurance.

Applying this manner of operation to underinsured motorist coverage, it follows logically that a claimant cannot recover third party liability benefits and underinsured motorist coverage from the same policy of insurance. Rather, the recovery of underinsured motorist coverage is dependent on the existence of two policies of insurance: the tortfeasor’s policy and the claimant’s policy. When a tortfeasor is underinsured, the claimant recovers third party liability benefits from the tortfeasor’s insurance and supplements this recovery with the underinsured motorist benefits available through his or her own policy of insurance.

Therefore, despite the séemingly harsh result rendered by our enforcement of the “family car exclusion” in Mr. Newkirk’s policy, our holding is consistent with the legislature’s intent and purpose in enacting the underinsured motorist provisions of the MVFRL. Furthermore, our enforcement of the “family car exclusion” does not violate section 1731(a) of the MVFRL. Mr. Newkirk’s policy with USAA does provide underinsured motorist vehicle benefits in an amount equal to the liability coverage included in the policy. The fact that Mrs. Newkirk cannot recover such benefits in this situation does not nullify the existence of those benefits in the policy.

Only three other jurisdictions have decided the issue involved in this case. Our holding to enforce the “family car exclusion” is supported by the decisions of two of those three jurisdictions. See Holz v. North Pacific Insurance Company, 53 Wash.App. 62, 765 P.2d 1306 (1988); Pre ferred Risk Mutual Insurance Company v. Tank, 146 Ariz. 33, 703 P.2d 580 (1985); but see Bratcher v. National Grange Mutual Insurance Company, 292 S.C. 330, 356 S.E.2d 151 (App.1987) (applying state policy of construing motor vehicle insurance statutes strictly against insurers, court held “family car exclusion” to be invalid on basis that legislature authorized insurance carriers only to restrict the amount of underinsurance motorist coverage to the limits of the liability coverage). In Holz v. North Pacific Insurance Company, supra, Mrs. Holz was injured in a single car accident involving her husband’s car. After she had recovered the maximum amount of liability coverage which was available through her husband’s insurance policy with North Pacific, she sought to recover underinsured motorist benefits through that same policy. Like USAA’s policy in the instant case, Mrs. Holz’s husband’s policy with North Pacific contained a clause excluding family cars from the definition of underinsured vehicles.

The Court of Appeals of Washington upheld the validity of the “family car exclusion” in Mr. Holz’s policy. In so doing, the court stated:

If Holz wishes greater protection while riding as a passenger in her own car, she should increase her liability insurance. Underinsured motorist insurance is purchased to protect oneself from other drivers whose liability insurance purchasing decisions are beyond one’s control.. Underinsured motorist coverage is not meant as insurance in case a person underinsures his own vehicle. The policy language makes that clear. To construe it as such would have the practical effect of transforming less expensive underinsured motorist coverage into liability insurance.

Holz, 53 Wash.App. 62, 68, 765 P.2d 1306, 1309-10. We find this rationale applicable in this case.

Mr. Newkirk paid a specified premium to USAA for his insurance policy. For that premium, USAA agreed to provide, among other benefits, the maximum of $15,000.00 of liability coverage for bodily injury to any of Mr. Newkirk's family members. Were we to allow Mrs. Newkirk to recover additional liability benefits through Mr. Newkirk’s less expensive underinsured motorist coverage by holding the “family car exclusion” to be invalid, we would be requiring USAA to pay well over $15,000.00 in liability coverage for Mrs. Newkirk’s injuries and thus be forcing USAA to assume a much greater risk of loss than it had agreed to assume for the amount of premium which Mr. Newkirk paid. Moreover, to compensate in the future for the additional liability coverage which we would be forcing it to provide through its underinsured motorist coverage, USAA would have to raise its customers’ premiums. This in turn would harm those customers of USAA who may not be able to afford or may not wish to pay higher premiums for more extensive liability coverage for their families. Furthermore, because many insurance companies, like USAA, restrict the underinsured motorist coverage they provide to their insureds by including the “family car exclusion” in their policies, these effects would be experienced not only by USAA and its insureds but also by other insurance companies and their customers throughout the Commonwealth.

Given these considerations, we conclude that while it would benefit the Newkirks, it would be against the interests of the public for us to rewrite Mr. Newkirk’s policy with USAA to allow Mrs. Newkirk to recover third party liability benefits from Mr. Newkirk’s underinsured motorist coverage with USAA. Mr. and Mrs. Newkirk could have contracted for greater liability coverage to protect themselves in situations such as the one with which they are now confronted. They did not choose to do so, and unfortunately they must now bear the harsh consequences of that decision.

Order affirmed.

      . Class one beneficiaries consist of "the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either.” Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 338, 473 A.2d 1005, 1010 (1984).

      . Mr. Newkirk’s policy with USAA defines "you" and "your" as "[t]he named insured shown in the Declarations; and [t]he spouse if a resident of the same household.” The policy defines "family member" as "a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child.”

      . Mrs. Newkirk’s complaint contained the following allegation:
      Plaintiff disputes the contention of the Defendant that the limits of liability coverage under the motor vehicle policy in question and provided for the benefit of Charles G. Newkirk as a result of this accident are only $15,000.00, but, for purposes of this action only, and in order to receive an adjudication of her rights under the motor vehicle policy in question, Plaintiff, without being bound thereby in any future actions, assumes that the limits of liability under the motor vehicle policy in question for the benefit of Charles G. Newkirk is in the amount of only $15,000.00. (emphasis added).
      For purposes of this appeal, therefore, we will assume that the limit of liability protection afforded Mrs. Newkirk under her husband’s policy with USAA is $15,000.

      . The policy in Wolgemuth, supra, stated:
      [N]either “uninsured motor vehicle” nor "underinsured motor vehicle” includes any vehicle or equipment:
      1. Owned by or furnished or available for the regular use of you or any family member.

        Wolgemuth, 370 Pa.Super. at 56, 535 A.2d at 1148.

      . The appellant in Wolgemuth, Galen H. Wolgemuth, was the administrator of the estate of Gail M. Wolgemuth, who was the guest passenger in the automobile involved in the accident.

      . A class two beneficiary is any individual whose entitlement to coverage under an automobile insurance policy is based solely upon his or her occupation of the insured vehicle at the time of the accident. Utica Mutual Insurance Company, supra, 504 Pa. at 338, 473 A.2d at 1010.

      . Section 1731(a) of the MVFRL provides, in pertinent part:
      (a) General rule. — No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth ... unless uninsured motorist and underinsured motorist coverages are provided therein or supplemental thereto in amounts equal to the bodily injury liability coverage....
      75 Pa.C.S. § 1731(a) (Supp.1988).

      . It is important to keep in mind in this case that we are considering whether Mrs. Newkirk is precluded from recovering both liability and underinsured motorist coverage from the same policy, that is, her husband’s policy with USAA. We are not addressing the issue of whether the “family car exclusion” could be enforced to bar a wife’s recovery of underinsured motorist benefits through her own separate automobile insurance if she was injured while riding as a passenger in her husband’s vehicle, where the third party benefits which she recovered from the husband’s insurance failed to pay her losses and damages. See e.g., DeVille v. State Farm Mutual Automobile Insurance Company, 367 N.W.2d 574 (Minn.Ct. Appeals 1985) (rule that "family car exclusion” is enforceable against plaintiff who is attempting to convert underinsured motorist coverage into liability coverage does not apply or extend to situation where wife recovered under husbandtortfeasor’s "liability coverage and is now seeking underinsured motorist benefits from her own personal policy with underinsured motorist coverage purchased by her for her own individual protection.”).


author: TAMILIA, Judge: KELLY, Judge, CAVANAUGH, Judge,

text:
    564 A.2d 1269
    COMMONWEALTH of Pennsylvania, Appellant, v. Brian HAGGERTY. COMMONWEALTH of Pennsylvania, Appellant, v. Ernest O. MATOS. COMMONWEALTH of Pennsylvania, Appellant, v. Alicea ROSA. COMMONWEALTH of Pennsylvania, Appellant, v. Andrea SOTO.
    Superior Court of Pennsylvania.
    Submitted May 2, 1989.
    Filed Oct. 5, 1989.

      Catherine Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    John Packel, Asst. Public Defender, Philadelphia, for appellees.
    Before CAVANAUGH, TAMILIA and KELLY, JJ.
   TAMILIA, Judge:

These are consolidated appeals by the Commonwealth from the Orders of court entered June 8, 1988 suppressing approximately two and one-half pounds of cocaine and drug paraphernalia seized by police on a finding that the “four corners” of the challenged search warrant did not establish probable cause.

A bail commissioner issued the search warrant in this case, based on an affidavit which failed to provide the date on which the confidential informant witnessed the persons, whose home was to be searched, in possession of drugs. Even so, the Commonwealth asserts the warrant was based on probable cause under the good faith exception to the exclusionary rule. The United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), recognized a good faith amendment to the exclusionary rule of the fourth amendment when it held the rule should not be applied so as to bar the use in the prosecution’s case-in-chief of inherently trustworthy, tangible evidence obtained by officers acting in reasonable reliance on a search warrant, issued by a detached and neutral magistrate, which ultimately is found to be defective. Id. at 907, 104 S.Ct. at 3412, 82 L.Ed.2d at 688.

Although we do not as yet have clear directions from the Pennsylvania Supreme Court on the good faith exception announced in Leon, supra, and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), we believe if the doctrine were approved by our Supreme Court, this case would clearly fall within it, even under the restricted view taken by the dissent of the probable cause statement contained in the search warrant and affidavit.

We agree with the following discussion by the Supreme Court in Leon:

The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. ‘Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury.’ An objectionable collateral consequence of this interference with the criminal justice system’s truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains. Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. Indiscriminate application of the exclusionary rule, therefore, may well ‘generate disrespect for the law and administration of justice.’ Accordingly, ‘as with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.’

Id. at 907-8, 104 S.Ct. at 3412-13, 82 L.Ed.2d at 688-9.

Although a search warrant is defective if the issuing authority is not supplied a time frame upon which to ascertain when the affiant obtained his information from his informant and when the informant himself obtained the information he allegedly had, Commonwealth v. Kalinowski, 303 Pa.Super. 354, 449 A.2d 725 (1982), citing Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973), we find the information as to the date of the drug activity was available for the bail commissioner’s use in issuing the warrant. See discussion, infra. An inadvertant error in processing a search warrant should not result in the dismissal of charges against alleged drug dealers. We find, however, aside from the good faith exception which remains to be construed by our Supreme Court, under the totality of the circumstances test, announced by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and adopted by our Supreme Court in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), the probable cause section does meet the test required for specificity relating to time, place and alleged criminal activity required to be contained within the four corners of the affidavit.

The trial court acknowledged the officers would have testified credibly that in supplying the information to the officer typing the warrant, all of the essential information was given to the effect that the criminal activity was observed by the informant on August 20, 1987, and while this date was typed in the affidavit as the date the information was received, it was inadvertently left out as the date when the activity was observed. We find that upon reading the affidavit from the point of view not of judges applying a critical legalistic eye, but of officers and magistrates working under time limits and urgency to proceed expeditiously, the only inference which can be drawn from the affidavit as written is that drug activity was currently in progress. Reading the affidavit within its four corners, it is fair to assume it informs that on Thursday, August 20, 1987, in the early evening hours, Sergeant Perez received information from a proven reliable informant that he/she had occasion to be inside 2549 N. Mascher Street, Philadelphia, Pennsylvania, in the company of Rivera a/k/a Brian where he observed Brian in possession of several large blocks of white chunky substance Brian referred to as cocaine, and that he had in his possession clear plastic baggies and two scales and Brian had a conversation with another person that he was going to start bagging cocaine so it could be picked up by his workers for distribution.

A fair reading of the affidavit leads to the conclusion the informant reported what he had just seen. Any other interpretation would be strained and would require that we ignore the more common sense approach announced by Gray and return to the hypertechnical standard required under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The necessity to establish the time frame concerning which the search warrant is sought is to avoid staleness as a warrant can only issue upon probable cause that exists at the time of issuance. Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981). Mere lapse of time between discovery of criminal activity and issuance of a search warrant will not necessarily dissipate probable cause and a showing that criminal activity is likely to have continued up to the time of issuance of a warrant will render otherwise stale information viable. A period of fourteen days between the observed criminal activity and the issuance of the warrant was not too remote to support a finding of probable cause. Id. Here, the large quantity of cocaine, the need to weigh and bag it, and the use of workers to provide distribution, pointed to a large operation conducted over a period of time. The informant had delivered valid information leading to the arrest of a person and confiscation of cocaine within the previous five days. Pursuant to this information, the officer seeking the warrant, the officer typing the warrant, the bail commissioner who issued the warrant and the assistant district attorney who approved the affidavit for the officer believed the affidavit provided sufficient probable cause to support the warrant. None caught the inadvertent lapse in supplying the date the informant viewed the activity because the affidavit could reasonably be read to mean he reported the activity immediately after he viewed it on August 20, 1987.

For these reasons, we reverse the trial court and remand the case for trial permitting the evidence seized to be admitted.

While we have not attempted to support the admission of this evidence on the basis of the good faith exception adopted by the United States Supreme Court, we believe that rule is also applicable here. Where the police are not chargeable with any misconduct and in all respects their procedures have been in compliance with the law in pursuit of a search warrant, the mere inadvertence of those involved in preparing an affidavit, in failing to provide a fact which was known to the officials involved, should not result in the nullification of that effort. To do so would not be to assure protection of the innocent, as intended by the constitution, but it would provide undeserved escape mechanisms for the guilty.

Orders reversed at Nos. 02123, 02124, 02125 and 02126 Philadelphia, 1988; cases remanded for trial permitting the seized evidence to be admitted.

Jurisdiction relinquished.

KELLY, J., joins TAMILIA, J., and files a concurring statement.

CAVANAUGH, J., dissents.

KELLY, Judge,

concurring:

I join the majority opinion. I agree that the affidavit adequately indicates the immediacy of the affiant’s observations and that the clerical omission of the date of the observations is not fatal to the validity of the warrant in this case.

I have no doubt that even if the warrant was deemed defective, the officers’ subsequent search would plainly fall within the recognized “good faith” exception to the federal exclusionary rule. See Annotation, Admissibility in Criminal Case of Evidence Obtained by Law Enforcement Officer Allegedly Relying Reasonably and in Good Faith on a Defective Warrant, 82 L.E.2d.2d 1054 (1986 & 1988 supp.) (collecting cases). I have noted previously my concerns regarding the existence and scope of a state constitutionally based exclusionary rule given our Supreme Court’s historical rejection of the federal exclusionary rule. See Commonwealth v. Shaeffer, 370 Pa.Super. 179, 262-271, 536 A.2d 354, 396-400 (Kelly, J., concurring and dissenting); allocatur granted 520 Pa. 596, 552 A.2d 251 (1988); see also Commonwealth v. Melson, 383 Pa.Super. 139, 171-75, 556 A.2d 836, 852-53 (1989) (Kelly, J., dissenting). The recent opinion in Commonwealth v. Mellini, 521 Pa. 405, 555 A.2d 1254 (1989), indicates the existence of a state constitutionally based exclusionary rule without delineating its scope. Consequently, rather than viewing this case as recognizing an exception to the state constitutionally based exclusionary rule applied in Mellini, I would view this case as declining to expand the scope of our nascent state exclusionary rule beyond the bounds which our Supreme Court’s decision commands. Whatever the scope of the new state exclusionary rule may be, I cannot believe it is intended to cover the error which occurred here.

CAVANAUGH, Judge,

dissenting:

This case involves an appeal by the Commonwealth from an Order of the court below by Bernstein, J. suppressing evidence consisting of approximately two and one-half pounds of cocaine and drug paraphernalia seized by the police.

A warrant was issued by a bail commissioner based on an affidavit which did not set forth probable cause for issuance of the warrant as it did not state the time in which the informant observed drugs in possession of the persons whose home was to be searched. As the warrant did not set forth probable cause, and there was nothing before the issuing authority to indicate probable cause when the warrant was issued, I dissent and would affirm the order of the court below.

The majority opinion does not support the admission on the basis of the good faith exception adopted by the Supreme Court, but instead has determined that the affidavit when read in a non technical way “leads to the conclusion [that] the informant reported what he had just seen.” Looking at the four corners of the affidavit there is clearly no indication when the informant observed the contraband. All that the affidavit states is that the informant notified a police officer, Sergeant Perez, that he had occasion to be inside a house located at a specific address and he observed a Mr. Rivera in possession of a white substance which Rivera referred to as cocaine and Rivera had in his possession plastic bags and two scales. Also, Rivera stated he was going to start bagging the cocaine for sale. Clearly the informant observed drug related activities, but the essential element missing is when did this observation take place.

The majority states at page 5, slip opinion.

We find that upon reading the affidavit from the point of view not of judges applying a critical legalistic eye, but of officers and magistrates working under the limits and urgency to proceed expeditiously, the only inference which can be drawn from the affidavit as written is that drug activity was currently in progress. (Emphasis added.)

In my opinion, there is no such inference at all and the majority opinion finds the inference so that the search warrant will prevail notwithstanding its lack of specificity as to when the contraband was observed.

The majority opinion posits at page-a situation that did not exist in this case when it states:

Where the police are not chargeable with any midconduct and in all respects their procedures have been in compliance with the law in pursuit of a search warrant, the mere inadvertence of those involved in preparing an affidavit, in failing to provide a fact which was known to the officials involved, should not result in the nullification of that effort. (Emphasis added)

The flaw is that while the police were aware when the informant observed the drugs, the issuing authority was not provided with a factual basis as to when the observations occurred. The knowledge must be conveyed to the impartial arbiter issuing the search warrant and that is what is lacking in this case. The police and the magistrate do not work as a unit. The magistrate is an independent arbiter who must determine if probable cause exists for the issuance of a search based on information supplied to him prior to the issuance of the warrant.

A search warrant is defective if the magistrate is not furnished a time frame upon which to ascertain when the affiant obtained his information from the informant and when the informant himself obtained the information he allegedly had. Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973). Stale information cannot supply the probable cause necessary to support issuance of a search warrant. Commonwealth v. Samuels, 326 Pa.Super. 561, 474 A.2d 632 (1984). For a search warrant to be constitutionally valid, the issuing authority must decide that probable cause exists at the time the warrant is issued. Commonwealth v. Carelli, 308 Pa.Super. 522, 454 A.2d 1020 (1982). The determination that probable cause exists must be made before the search and not subsequent to it. Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984). Finally, the determination of probable cause for issuance of the warrant must be based on facts described within the four corners of the supporting affidavit. Commonwealth v. Way, 342 Pa.Super. 341, 492 A.2d 1151 (1985).

In the case before us, after the search warrant was issued and the evidence seized, the defendants below filed a motion to suppress on the grounds that the search warrant was invalid. At argument, the Commonwealth conceded that the search warrant was defective on its face since it did not allege the date or time when the informant observed drugs and drug paraphernalia at 2549 N. Mascher Street in Philadelphia. The Commonwealth argued that the police officer in preparing the affidavit inadvertently omitted that the informant observed the drugs on the premises to be searched on August 20, 1987, the date of the affidavit. The court below determined that there was no probable cause for issuance of the warrant and suppressed the evidence as a result of an illegal search and seizure.

There is a fundamental right under both the Fourth Amendment to the Constitution of the United States and the Constitution of Pennsylvania to be free from unreasonable search and seizure. See Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984). Before a search warrant may be issued sufficient information must be presented to a magistrate to enable him to determine probable cause and his action cannot be a mere ratification of the conclusions of another. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The Constitution of the Commonwealth of Pennsylvania gives its citizens protection against unreasonable search in Article I, Section 8 which states:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

When evidence is seized in violation of the Fourth Amendment, it must be suppressed in state courts. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Commonwealth argues that Pennsylvania has adopted a good faith exception to the rule that excludes evidence seized pursuant to an improperly issued search warrant. In Commonwealth v. Melilli, 361 Pa.Super. 429, 522 A.2d 1107 (1987) the court below suppressed evidence obtained by the Commonwealth from pen registers and telephone interceptions because a magistrate had not determined that there was probable cause for the use of a pen register. When the Municipal Court judge issued the order authorizing the use of the pen register, he believed that a warrant based upon probable cause was not a necessary condition for the use of a pen register and accordingly, he did not consider whether probable cause existed. We relied on the decision of the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) which established a good faith exception to the exclusionary rule, and reversed the court below. We determined that the evidence was not subject to suppression as the law enforcement officials had acted in reasonable, good faith reliance upon authorization of a neutral magistrate, although the authorization was defective because unsupported by probable cause. Our decision was reversed by the Supreme Court in Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989) and the evidence was suppressed. The Supreme Court rejected the good faith exception as applied by the Superior Court in Melilli, stating at 521 Pa. 415, 555 A.2d at 1259: “Unfortunately, the present Superior Court simply misreads Justice Byron White’s language in those cases [United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).] and the doctrine as applied here must be rejected on review.” The Supreme Court expressly stated that it would leave for another day and different facts to determine if a good faith exception would be read into the law of Pennsylvania.

Notwithstanding the Supreme Court’s decision in Commonwealth v. Melilli, supra, the Commonwealth contends that two other cases on which it relies remain intact and support its position. In Commonwealth v. Morris, 368 Pa.Super. 237, 533 A.2d 1042 (1987) a state police officer verbally related facts to a magistrate which clearly supported a determination of probable cause. An affidavit was typed with the assistance of the magistrate’s secretary but the relevant facts were not included in the affidavit of probable cause. When the application for the search warrant was presented to the magistrate, she merely glanced at it before signing it. We held that under Leon and this court’s decision in Melilli, that the police acted in good faith in relying on the magistrate’s certification of probable cause. Our case is readily distinguishable as in Morris there was probable cause to issue the search warrant presented to the magistrate before the warrant was issued. In the instant case, there was nothing presented to the issuing authority on which it could base its determination that probable cause was present.

The Commonwealth’s reliance on Commonwealth v. Edmunds, 373 Pa.Super. 384, 541 A.2d 368 (1988), appeal granted by Commonwealth v. Edmunds, 520 Pa. 595, 552 A.2d 250 (1988), is similarly misplaced. In that case, the affidavit did not contain facts from which the date of the informant’s observation of marijuana could be ascertained. However, information concerning the date of the observation had been communicated to the issuing authority, but had been omitted inadvertently from the affidavit when it was prepared in the magistrate’s office. We held that the evidence would not be suppressed as the police acted reasonably in relying on the warrant issued by the magistrate, stating at 373 Pa.Super. 384, 541 A.2d at 373 (1988):

The suppression court’s determination comported with the decision in Commonwealth v. Morris, 368 Pa.Super. 237, 533 A.2d 1042 (1987), where a panel of this Court held that a good faith exception would be applied to a situation in which facts sufficient to establish probable cause were known to the officer and issuing authority but were inadvertently omitted from the affidavit. (Emphasis added.)

The Commonwealth would have us grant a good faith exception to the exclusionary rule where the issuing authority did not have before it sufficient facts to constitute probable cause, on the basis that the police acted in good faith in executing the search warrant. We should not do this, especially in view of our Supreme Court’s admonition that it will determine in the future whether Pennsylvania should recognize a good faith exception at all.

In Commonwealth v. Chandler, supra, our Supreme Court stated:

The people of this state and nation are constitutionally entitled to an independent judicial determination of probable cause before they must open to the policeman’s knock at the door in the night.
The issuing judicial authority, in this case a District Justice, has the authority and obligation to draw such reasonable inferences as he will from the material supplied to him by police applying for a warrant and to make a finding on the issue of probable cause. Moreover, the magistrate is free to exact such assurances as he deems necessary to insure that the information on which probable cause is based has been obtained in a reliable way from a credible person. Illinois vs. Gates, 462 U.S. 213 at 240, 103 S.Ct. 2317 at 2333, 76 L.Ed.2d 527 at 549 (1983).
The magistrate’s function is more than the ministerial one of administering an oath to an officer who has set forth facts the officer believes constitute probable cause. The magistrate must make a judicial determination, albeit a non-technical, common sense judgment, see Gates, as to whether probable cause exists. (Emphasis added.)

505 Pa. at 121-123, 477 A.2d at 854-856.

A magistrate need not apply a highly technical reading to an application for a search warrant but where, as in this case, the application irrefragably fails to set forth probable cause, and the magistrate is not given any facts prior to the issuance of the warrant to establish probable cause, the search warrant may not serve as the basis for a valid search and seizure. This comports with the requirements of United States v. Leon, 468 U.S. at 923, 104 S.Ct. at 3405, 82 L.Ed.2d at 699 wherein the Court stated:

Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.

In my opinion warrant in this case was fatally defective for failing to set forth the date or dates on which the informant observed the presence of drugs and drug paraphernalia at the premises to be searched. The error could not be corrected by testimony after the seizure of evidence was completed to the effect that the objects to be seized were observed on the date the affidavit was taken, when this fact was not communicated to the magistrate prior to the issuance of the search warrant.

Accordingly, I dissent.

      . The Commonwealth appeals on the basis of Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), as suppression of the evidence of drugs and drug paraphernalia effectively terminated the prosecution.

      . The affidavit stated:
      On Thursday 8-20-87 in the early evening hours Sgt. M. PEREZ #428 Narcotics unit received information from a proven reliable informant, who within the past (5) days provided information to Sgt. M. PEREZ resulting in the arrest of (1) person and the confiscation of an amount of cocaine and heroin. This informant went on to state to PEREZ that he/she had occasion to be inside 2549 N. Mascher St., Phila. Pa. in the company of a H/M known to him/her as Jose RIVERA who also uses the name BRIAN, and while there the informant states he/she did observe RIVERA/BRIAN in possession of several large blocks of a white chunky substance which RIVERA did refer to as cocaine, the informant states that RIVERA also had in his possession several empty clear plastic baggies and (2) scales. The informant went on to state that he/she did hear a conversation between RIVERA and another unidentified H/M, and RIVERA did state to this H/M that he was going to start bagging up the cocaine so it could be picked up by his workers who would transport the cocaine to different locations for the purpose of selling it.

      . The Commonwealth appeals on the basis of Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) as suppression of the evidence of drugs and drug paraphernalia effectively terminated the prosecution.

      . The probable cause section of the search warrant and affidavit stated:
      On Thursday 8-20-87 in the early evening hours Sgt. M. PEREZ #428 Narcotics unit received information from a proven reliable informant, who within the past (5) days provided information to Sgt. M. PEREZ resulting in the arrest of (1) person and the confiscation of an amount of cocaine and heroin. This informant went on to state to PEREZ that he/she had occasion to be inside 2549 N. Mascher St., Phila. Pa. in the company of a H/M known to him/her as Jose RIVERA who also uses the name BRIAN, and while there the informant states he/she did observe RIVERA/BRIAN in possession of several large blocks of a white chunky substance which RIVERA did refer to as cocaine, the informant states that RIVERA also had in his possession several empty clear plastic baggies and (2) scales. The informant went on to state that he/she did hear a conversation between RIVERA and another unidentified H/M, and RIVERA did state to this H/M that he was going to start bagging up the cocaine so it could be picked up by his workers who would transport the cocaine go different locations for the purpose of selling it.

      . The Commonwealth does not contend that the affidavit set forth probable cause. At the hearing in the court below, the following took place:
      THE COURT: If I’m understanding the basis of your argument, the Commonwealth is conceding that the warrant is deficient on its face.
      MR. BASEWITZ: [Assistant District Attorney] I didn’t want to, but I guess I have to, yes, Your Honor.

      . The majority states at page 1271:

        An inadvertant error in processing a search warrant should not result in the dismissal of charges against alleged drug dealers. (Emphasis added.)
      If the error results in a deprivation of constitutional rights, the fact that an alleged drug dealer is involved is of no legal significance. The Constitution applies to all those charged with crime, notwithstanding the seriousness of the alleged offense.

      . Officer Snead, who prepared the search warrant, testified that:
      I then went from my headquarters to the Roundhouse, to the District Attorney’s trailer; and I had the warrant reviewed and approved. From that point on, I went over to the arraignment court and I had the warrant signed by a bail commissioner.
      Q. When you say you want to the D.A.’s Charging Unit and had it approved, in what capacity was the person from the D.A.’s office that reviewed it, if you know?
      A. Assistant District Attorney.

      . Aguilar v. Texas, supra, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) set forth a two pronged test which must be met to show probable cause, i.e., establishment of (1) the basis of the informant’s knowledge and (2) the reliability or veracity of the informant. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) the two pronged test was replaced with a totality of the circumstances analysis in determining the existence of probable cause. See also, United States v. Feliz-Cordero, 859 F.2d 250 (2nd Cir.1988). Pennsylvania adopted the totality of the circumstances test of Illinois v. Gates, supra, in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985).

      . The majority opinion bases its opinion on the theory that the affidavit was not deficient, but nevertheless reaches the conclusion that it also falls within the good faith exception to the exclusionary rule. It seems to me that the majority position is inconsistent. If the affidavit formed a valid basis for issuing the search warrant, there would be no need to find a good faith exception. The Commonwealth argument is consistent and it does not contend that the affidavit was sufficient.

      . The Supreme Court in Melilli noted at 521 Pa. 414-415, 555 A.2d at 1259:
      That decision [of the Superior Court in Melilli ] represents the only instance in our state jurisprudence so far to have attempted to read our State Constitution according to the Leon or Sheppard rationale.