author: POPOVICH, Judge:

text:
    437 A.2d 992
    COMMONWEALTH of Pennsylvania, v. Robert PRENGLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Nov. 30, 1981.
    Petition for Allowance of Appeal Denied March 26, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

Appellant, Robert Prengle, also referred to as Robert Pringle, was arrested on March 12, 1979, and charged with burglary, theft, receiving stolen property, criminal trespass and possessing an instrument of crime. A timely filed pre-trial motion to suppress evidence was heard and denied. Immediately thereafter, appellant was found guilty in a non-jury trial of burglary only. Post-verdict motions were denied and appellant was sentenced to serve an eighteen month to three year term of imprisonment. This direct appeal followed.

Appellant’s sole contention on appeal is that the evidence obtained as a result of his allegedly illegal arrest was impermissibly admitted into evidence. We disagree and affirm the judgment of sentence.

The facts, which are not in dispute, are as follows: On March 12, 1979, at approximately 5:50 A.M., Officer Randy Jaudon of the Philadelphia Police Force received a J Band radio bulletin advising him that a burglary had been committed at 1020 Spring Garden Street. The bulletin further advised the officer that an unknown male would be driving a truck “loaded with tires and bearing the logo ‘Center City Tire Company.’ ” Officer Jaudon immediately proceeded to an exit ramp on the Expressway on a “hunch” that, based on the location of Center City Tire Company, the driver probably would use the expressway and exit at that ramp. Within five minutes of his arrival at the exit ramp, Officer Jaudon stopped an individual, later identified as appellant, driving a truck loaded with tires, and bearing the logo “Center City Tire Company.” The officer approached the truck, asked appellant to remove himself from the cab, conducted a frisk of appellant’s outer clothing for the purpose of discovering dangerous instrumentalities, and asked appellant for identification. After failing to respond to Officer Jaudon’s request to produce a driver’s license and an owner’s card, appellant was placed under arrest. Officer Jaudon then searched the truck and recovered forty-three tires and two boxes filled with cigarettes, peanuts, and crackers. Appellant was found to be in possession of a screwdriver and “what appeared to be a switch with a key.”

Appellant contends on appeal that his arrest was unlawful. More specifically, appellant argues that because the Commonwealth failed to satisfy its burden of demonstrating either (1) probable cause for the issuance of the bulletin which prompted the arrest or (2) that the arresting officer independently possessed reasonable suspicion to stop appellant, all physical evidence should have been suppressed as the fruit of an unlawful arrest.

For the following reasons, we reject appellant’s contention.

To begin with, the United States Supreme Court has said that:

“[t]he Fourth amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary. . .it may be the essence of good police work to adopt an intermediate response. ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972) (citations omitted) (emphasis added).

Therefore, even in the absence of probable cause, an individual may be stopped and briefly detained provided the investigating officer can point to specific and articulable facts which in conjunction with rational inferences deriving therefrom reasonably warrant the intrusion. Adams v. Williams, supra.

Moreover, this court has addressed the reason why a brief detention may be permissible under circumstances substantially similar to those of the instant appeal, stating:

“[w]e should permit our police in the early stage of their investigative work (before a warrant has been issued for specific individuals), to adopt the “intermediate response” mentioned in Adams—to rely on radio information for the purpose of detaining individuals suspected of criminal activity, at least long enough to determine identity. If such a stop can be shown to actually have been based on probable cause, or if the stop discloses new information, then the police should be permitted to proceed in a reasonable manner, detaining for further investigation, or, where appropriate, making an arrest.” Commonwealth v. Benson, 239 Pa.Super. 100, 107, 361 A.2d 695, 698 (1976), aff’d per curiam, 482 Pa. 1, 393 A.2d 348 (1978) (emphasis added).

Hence, we recognize that a police officer may rely upon information which is broadcast over a police radio in order to justify an investigatory stop and subsequent arrest where the Commonwealth can establish either (1) that probable cause existed for issuing the bulletin or (2) that new information disclosed during the stop gave rise to probable cause for arrest.

Instantly, the information supplied to Officer Jaudon over the J Band was that: (1) a burglary had been committed at 1020 Spring Garden Street; (2) the perpetrator would be driving a truck with “Center City Tire Company” written on the sides; and (3) the truck probably would be filled with tires. Based on the foregoing information, Officer Jaudon, within fifteen minutes of receiving the report, stopped a truck at 6:05 A.M. in the vicinity of the burglarized premises, that matched the exact description of the truck suspected of having been stolen.

Appellant now contends that because the officer failed to establish at the suppression hearing that he personally observed “unusual conduct” that led him to conclude that appellant was armed and dangerous, his action in stopping appellant for investigatory purposes and patting him down for weapons was illegal. We disagree.

The police officer’s failure to observe personally appellant engaging in “unusual conduct” does not vitiate the reasonableness of the officer’s action in the instant case. The facts known to the officer prior to the frisk in question show that a crime of violence was reported, and, within minutes of the reported crime, the officer saw a moving vehicle matching the exact description of the stolen truck in the vicinity of the crime. Under these circumstances, we will not ignore the probable existence of danger and require that the officer first ask for identification prior to conducting a protective frisk. As Justice Harlan so aptly stated in Terry v. Ohio:

[w]here such a stop is reasonable . . . the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence. Just as a full search incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop must often be rapid and routine. There is no reason why an officer rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet. Terry v. Ohio, 392 U.S. 1, 36, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889, 913 (1968) (Harlan, J., concurring) (emphasis added).

The facts of this case are illustrative of a proper investigatory stop and an incident frisk. Moreover, appellant’s inability to produce a driver’s license or an owner’s card provided the officer with new information sufficient to justify appellant’s arrest. Commonwealth v. Benson, supra. Accordingly, the lower court did not err in denying appellant’s motion to suppress.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3502 (1973).

      . The J Band is a city-wide radio band that broadcasts information on emergencies and high priority crimes within minutes after their occurrence. A J Band call clears all other bands so that every policeman in the city can receive the information.

      . We are not now deciding, nor did either party question whether appellant has standing to challenge the admissibility of physical evidence seized from a stolen truck. We do note, however, that because appellant’s presence in the truck was unlawful, any claim to a reasonable expectation of freedom from government intrusion into a stolen vehicle would be ludicrous. See Commonwealth v. Merbah, 270 Pa.Super. 190, 195 n. 2, 411 A.2d 244, 247 n. 2 (1979).

      . Burglary is a felony of the first degree, 18 Pa.C.S.A. § 3502(c) (1973), and also is recognized to be a crime of violence. In this connection, it is important to note that Officer Jaudon rightfully could assume not only that the perpetrator was a fleeing felon, but also that he had engaged in violent criminal activity.

      . We are mindful of Justice Robert’s opinion in Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1975), wherein he opined that a “pat down” of a burglary suspect was without lawful justification where the police officer was unable to point to any particular facts from which he reasonably inferred that the suspect was armed or dangerous, and conducted the frisk for his own protection. Nevertheless, the circumstances of this case, specifically, the detailed description furnished over the J Band, the nature of the crime, the time of morning, and the fact that the officer was stopping a truck that matched the exact description of the one suspected of having been stolen, warrant a result different from that reached in Pegram, supra.


source: Caselaw Access Project

license: Public Domain

text:
    437 A.2d 995
    Philomena DAVANZO, Appellant, v. Robert FINELLI.
    Superior Court of Pennsylvania.
    Submitted Feb. 2, 1981.
    Filed Nov. 30, 1981.

      Ronald J. Karasek, Bangor, for appellant.
    Ronald W. Shipman, Easton, for appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

Appellant, Philomena Davanzo, instituted an action in trespass against the appellee, Robert Finelli, for injuries she sustained when struck by his vehicle. A jury trial was held in the Court of Common Pleas of Northampton County, which resulted in a verdict being rendered in favor of the appellee. Appellant filed Motions for a New Trial or Judgment Non Obstante Veredicto, which were denied by the Court en banc by Order dated June 23, 1980. Appellant’s appeal is from said Order. We must quash the appeal, inasmuch as it was taken to this Court without final judgment having been entered.

Although the appellee does not raise the propriety of appellant’s appeal, we have oft-stated that the appealability of an order goes to the appellate court’s jurisdiction and may be raised sua sponte. Turner v. May Corp., 285 Pa.Super. 241 n. 2, 427 A.2d 203, 204 n. 2 (1981). In applying such tenet to the case at bar, we note that “[a]n appeal does not lie from the refusal of either a new trial or judgment n. o. v., but from the judgment entered subsequent to the court’s disposition of after verdict motions. Simpson v. Pennsylvania Turnpike Commission, 384 Pa. 335, 121 A.2d 84 (1956).” Bodick v. Harcliff Mining Co., 207 Pa.Super. 159, 160, 214 A.2d 735, 736 (1965). The entry of judgment is a prerequisite to our exercise of jurisdiction. See Slaseman v. Myers, 285 Pa.Super. 167, 427 A.2d 165 (1981); 2 Goodrich-Amram 2d § 1038(b):l, at 501 (1976); 6A Standard Pennsylvania Practice § 169, pp. 221-222 (1960). Our review of the record in the present appeal evidences that judgment had not been entered on the verdict when the appeal was taken nor at any time thereafter. As a result, the appeal is premature and must be quashed. See Garttner v. F. Jay Smith, Inc., 291 Pa.Super. 341, 435 A.2d 1257 (1981); Crawford v. Manhattan Life Insurance Company of New York, 207 Pa.Super. 161, 215 A.2d 299 (1965); Bodick v. Harcliff Mining Co.; supra; accord Carl v. Matzko, 212 Pa.Super. 204, 240 A.2d 561 (1968); Pa.R.A.P. 301(c); see also 42 Pa.C.S.A. § 5105 (Pamphlet, 1981).

In accordance with our past practice in similar situations, the record is remanded to the Court of Common Pleas of Northampton County without prejudice to the right to enter judgment on the verdict and to appeal therefrom to the proper court.

Appeal quashed and record remanded.

      . The aggrieved litigant should, if necessary, cause a judgment to be entered on the undisturbed verdict in order that she might properly perfect an appeal. See Simpson v. Pa. Turnpike Comm’n, supra; 2 Goodrich-Amram 2d § 1039:1 (1976); 6A Standard Pennsylvania Practice § 169, p. 222 (1960).


author: SHERTZ, Judge:

text:
    437 A.2d 996
    COMMONWEALTH of Pennsylvania, Appellant, v. Larry WALLACE.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1981.
    Filed Nov. 30, 1981.

      Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Vincent C. Murovich, Pittsburgh, for appellee.
    Before SPAETH, SHERTZ, and MONTGOMERY, JJ.
   SHERTZ, Judge:

This is an appeal by the Commonwealth from an order granting Appellee’s, Larry Wallace, motion to suppress evidence. The Commonwealth advances two arguments: (1) that because the “Knock and Announce” Rule is inapplicable to unoccupied dwellings, the lower court erred in invoking the rule in the instant case, and (2) that even assuming the applicability of the “Knock and Announce” Rule, the police conduct in question was not a violation thereof. We disagree and affirm.

The relevant facts are as follows. Based upon information received from an informant, Margaret Perez, McKeesport police obtained a warrant to search Larry Wallace’s apartment for drugs and drug related items. The police proceeded to Appellee’s apartment, knocked on the door, and waited several minutes without getting a response. They then went to look for Appellee in a bar that he owned and operated on the first floor of the apartment building. Because Appellee was not there, a police officer asked the barmaid to telephone certain of Appellee’s relatives to find out whether they could give the police access to Appellee’s apartment. She did so, and Appellee’s mother, sister and brother-in-law arrived at the bar soon thereafter. Although none had a key to the apartment, Appellee’s brother-in-law entered Appellee’s apartment through a window and unlocked the door from the inside. Without knocking or identifying themselves, the police then entered the apartment and searched it. Twenty-one manila envelopes containing marijuana and one pill containing methaqualone were seized.

Appellee was subsequently arrested and charged with four counts of promoting prostitution, one count of corrupting the morals of a minor, one count of criminal conspiracy and three counts of violating the Controlled Substance, Drug Device and Cosmetic Act. Following his arrest, Appellee filed an omnibus pre-trial motion to suppress. The motion was granted because the Commonwealth offered no testimony to indicate that the police officers ever announced their identity or their purpose before forcibly entering Appellee’s apartment. The lower court, therefore, found that the police had violated Pa.R.Crim.P. 2007, the “Knock and Announce” Rule. It is from that order that the Commonwealth has appealed.

Pa.R.Crim.P. 2007 provides in pertinent part that in executing a search warrant, a police officer “shall, before entry, give or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant unless exigent circumstances require his immediate forcible entry.” See Commonwealth v. Burstin, 259 Pa.Super.Ct. 584, 393 A.2d 979 (1978). It is undisputed that there was no announcement of purpose in the instant case. Nor were there any exigent circumstances that would justify entry without proper announcement. Rather, the Commonwealth advances the argument that the “Knock and Announce” Rule did not apply in the instant case. The Commonwealth reasons as follows. Both at common law and today, the “Knock and Announce” Rule serves three goals. It is aimed at “reducing the potential for violence to both the officers and occupants of the house, guarding against needless destruction of private property and furthering respect for individual privacy.” Commonwealth v. Duncan, 257 Pa.Super.Ct. 277, 285-86, 390 A.2d 820, 825 (1978) (citing United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1973)). Because Appellee’s apartment was unoccupied at the time of the police entry, none of the goals of the “Knock and Announce” Rule would have been served by requiring the police officers to announce their identity and purpose. Thus, the Commonwealth contends, the “Knock and Announce” Rule should not have applied in the instant case.

This argument is disingeneous. The police officers did not know that Appellee was away from his apartment until they entered and searched it. The simple fact that there was no response to their knock was insufficient to establish Appellee’s absence. As the trial court aptly stated, “(h)e could have been asleep, or avoiding an old girlfriend or a bill collector.” Lower court slip op. at 3. Moreover, Appellee could have returned home between the time of the initial arrival of the police and their return to Appellee’s apartment after making inquiries at the bar downstairs. Thus, the actions of the police officers in the instant case cannot be excused by the fact that ultimately Appellee’s apartment was discovered to be unoccupied particularly when the officers did not even knock on Appellee’s door after they returned to Appellee’s apartment. We, therefore, conclude that the “Knock and Announce” Rule applied in the instant case and that the police conduct in question violated its clear mandates.

Turning to the Commonwealth’s second argument, we also conclude that the unannounced intrusion by the police officers was not reasonable under the circumstances. As this court has stated on several occasions, it is not “too much to expect of the officers to announce their purpose in demanding admission .... ‘the burden of making an express announcement is certainly slight. A few more words by the officers would have satisfied the requirements in this case.’ ” Commonwealth v. Newman, 429 Pa. 441, 447, 240 A.2d 795, 798 (1968) (quoting Miller v. United States, 357 U.S. 301, 309-10, 78 S.Ct. 1190, 1195-96, 2 L.Ed.2d 1332 (1958)); Commonwealth v. Golden, 277 Pa.Super.Ct. 180, 186, 419 A.2d 721, 724 (1980). There were no exigent circumstances sufficient to justify the officers’ failure to comply with Rule 2007. Nor did the police have a reasonable belief that evidence was about to be destroyed or that delay in entry would endanger their lives. Commonwealth v. Samuels, 235 Pa.Super.Ct. 192, 203, 340 A.2d 880, 885 (1975). We, therefore, find no merit to the Commonwealth’s contentions.

Accordingly, the order of the lower court is affirmed.

      . This Court’s jurisdiction is invoked pursuant to 42 Pa.Cons.Stat. Ann. § 742 (Purdon 1981), the Order in question being deemed final in light of Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), and the Commonwealth’s right of appeal having vested in accordance with Commonwealth v. Kunkel, 254 Pa.Super.Ct. 5, 385 A.2d 496 (1978).

      . 18 Pa.Cons.Stat.Ann. §§ 5902(b)(1), (b)(2), (b)(6) & (b)(8) (Purdon 1979).

      . 18 Pa.Cons.Stat.Ann. §§ 6301 (Purdon Supp. 1981-82).

      . 18 Pa.Cons.Stat.Ann. 903(a)(1) (Purdon 1979). The charges of promoting prostitution, corrupting the morals of a minor, and criminal conspiracy were dismissed when the Commonwealth’s key witness refused to testify against Appellee.

      . 35 Pa.Cons.Stat.Ann. §§ 780-113(a)( 16) & (a)(30) (Purdon 1977).


author: HOFFMAN, Judge:

text:
    437 A.2d 999
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard C. SCHOMAKER. COMMONWEALTH of Pennsylvania, v. Richard C. SCHOMAKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed Nov. 30, 1981.

      H. David Rothman, Pittsburgh, for appellant in No. 1595 and for appellee in No. 1600.
    F. Peter Dixon, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant in No. 1600 and appellee in No. 1595.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   HOFFMAN, Judge:

These are cross appeals from an order granting a new trial on a charge of theft by deception. In its appeal, the Commonwealth contends the jury was properly instructed and therefore seeks reinstatement of the jury’s verdict. Defendant seeks arrest of judgment in his appeal, or alternatively, to uphold the order granting a new trial. Because we agree with defendant that a fatal variance existed between the indictment and the jury instructions, we affirm the order granting a new trial.

The evidence indicated that defendant (an attorney), one of his clients (Todd), and a bail bondsman (Leavitt) formed a coal brokerage business, American International Company, which contracted to supply a local utility with low-sulfur coal. If the average sulfur content for any month’s shipment exceeded the specified level, the utility could cancel the remainder of the contract and pay only half the approximately $120,000-per-month contract price for the non-conforming shipment. To measure sulfur content, the utility would accumulate samples of pulverized coal for each 10-day period, store them in a shed, and subsequently test them before making payment. American International’s first twenty days of shipment drastically exceeded the specified sulfur level. The defendant met several times with Todd and Leavitt to discuss the problem. One night soon thereafter Todd and Leavitt went to the utility’s shed and replaced the last 10-day sample from their company with a similar quantity of extra-low-sulfur metalurgical grade coal. Although Todd told defendant about the sample switch the following day, defendant did not notify the utility. As a result of the switch, the month’s sulfur content was within specified levels, and a few weeks later defendant accepted the utility’s full payment of $120,000 on behalf of American International.

At the close of testimony, the lower court instructed the jury on the elements of theft by deception and accomplice liability. Additionally, it instructed the jury, over defendant’s objection, that, even if it could not find defendant had acted intentionally, it could convict him of theft by deception if it found he had recklessly omitted to perform a duty imposed by law upon the brokerage business for which he was the primary responsible agent. The jury convicted defendant. Upon defendant’s post-trial motions the lower court en banc deemed the additional instructions concerning reckless omission to be error and granted a new trial. These appeals followed.

Appellant contends that the instruction concerning reckless omission of a corporate duty was at such a variance from the indictment as to be fatal to the verdict. We agree. The indictment charged defendant as follows:

On or about May 13, 1975, said actor did personally or through an accomplice intentionally obtain $61,542.49, being the property of West Penn Power Company, by deception; to wit said actor did create and reinforce a false impression as to the quality and value of coal delivered to the Armstrong Power Station at Reesdale during April, 1975, said deliveries being made pursuant to a contract between West Penn Power Company and American International Company.

(Emphasis added.) The Commonwealth’s indictment thus alleged that defendant, personally or through an accomplice, intentionally obtained or withheld the utility’s property. The lower court properly submitted that issue to the jury. However, the court also instructed the jury to determine if defendant had omitted a duty imposed upon the brokerage business, if he were the primary responsible agent for that duty, and further instructed that it could find defendant guilty even if it could not find he had acted intentionally, as follows:

. . . then you must decide if [the defendant] acted recklessly when he failed to advise West Penn Power regarding the sample switch prior to its payment to American International. If you believe he did act recklessly under those circumstances you may find him guilty of [theft by deception]....

(N.T. at 2050) (Emphasis added.) The additional jury instructions along with certain evidence supporting them thus put before the jury the allegation that defendant had obtained or withheld the utility’s property through the reckless omission of a duty imposed by law upon his corporation. This allegation varied from that in the indictment. A variance between the indictment and proof will be deemed fatal to the verdict when a defendant could be: (1) misled at trial; (2) prejudicially surprised in efforts to prepare a defense; (3) precluded from anticipating the prosecution’s proof; or (4) otherwise impaired with respect to a substantial right. Commonwealth v. Kelly, 487 Pa. 174, 177, 409 A.2d 21, 23 (1979); Commonwealth v. Pope, 455 Pa. 384, 390, 317 A.2d 887, 890 (1977). We find the variance between the indictment and the charge submitted to the jury here could have sufficiently misled the defendant, been prejudicial to his efforts to prepare a defense, precluded him from anticipating the prosecution’s proof, and impaired his substantial rights so as to be fatal to the verdict.

The Commonwealth contends that there is no variance because the indictment adequately apprised defendant of his potential liability as a corporate agent under section 307(e)(2) of the Crimes Code, 18 Pa.C.S.A. § 307(e)(2), particularly by naming American International and using the words “or through an accomplice.” We disagree. Section 307(e)(2) states that:

(2) Whenever a duty to act is imposed by law upon a corporation or unincorporated association any agent of the corporation or unincorporated association having primary responsibility for the discharge of the duty is legally accountable for a reckless omission to perform the required act to the same extent as if the duty were imposed by law directly upon himself.

18 Pa.C.S.A. § 307(e)(2) (emphasis added). Section 307, concerning the criminal accountability of corporations, associations, and their agents for acts on behalf of one another, “supplements” the general principles of accomplice liability, Model Penal Code § 2.07, Comment (TentDraft No. 4,1975), and is “applicable” to all offenses defined by the Crimes Code. See 18 Pa.C.S.A. § 107(a). Indicting for accomplice liability does indirectly alert a defendant that he may be held accountable for another’s conduct by the definition of the specific offense, by any form of accomplice liability in the general accomplice section, or by some other accessorial principles in the Crimes Code. 18 Pa.C.S.A. § 306(b)(2) (“A person is legally accountable for the conduct of another person when ... he is made accountable for the conduct of such other person by this title.”). However, by the scheme of the Crimes Code, provisions holding a defendant liable for offenses upon a lesser degree of culpability—recklessness— than ordinarily required for an intentional offense such as theft by deception, see 18 Pa.C.S.A. § 3922—violate the general principle that “the liability of an accomplice ought not extend beyond the criminal purposes he shares or knows,” Model Penal Code § 2.06, Comment (TentDraft No. 1, 1953). Such liability is thus “created by special section[s] dealing with the special situation^].” Id. Section 307(e)(2), relied upon by the Commonwealth, is such a special provision. It purports to hold an agent liable for even an intentional crime upon a showing of: (1) recklessness; (2) omission of a duty; (3) which duty is imposed by law upon the agent’s principal, a corporation or association; and (4) the agent’s primary responsibility for the duty. 18 Pa.C.S.A. § 307(e)(2). By placing section 307 in a separate section from the general accomplice provisions, the legislature manifested its intent to create a special form of accessorial liability with attendant substantive and procedural distinctions. Cf. Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979) (equally divided Supreme Court allowed jury to be charged on accomplice liability even though indictment only charged defendant as a principal; opinion in support of affirmance relied on Model Penal Code comments and grouping of general accomplice provisions in one section). Accordingly, because section 307(e)(2) so alters the elements of Commonwealth’s proof, we believe the better view is to require the indictment to set forth specifically each of the elements of section 307(e)(2) whenever the Commonwealth elects to proceed under it. See People v. King, 5 Ill.App.3d 357, 283 N.E.2d 294 (1972) (dismissing complaint and holding that individual could not be held criminally liable under the Illinois version of section 307(e)(2) for corporation’s failure to file a state tax return when complaint charged him individually without setting forth any relation he may have had to the corporation).

Failure to specify in the indictment each of the elements of section 307(e)(2) can seriously mislead the defendant, prejudicially surprise him, preclude him from anticipating the prosecution’s proof, and impair his substantial rights. For example, he may be deprived of the opportunity to present a factual defense on the issue of whether he is the “primary responsible agent.” 18 Pa.C.S.A. § 307(e)(2). Cf. Commonwealth v. Petrilla, 46 Luz.L.Reg. 50, -, 5 Pa.D. & C.2d 707, 708 (1956) (“Where an offense may be committed by persons of a certain class or description only, accused must be described with certainty and directness as being of that class or description at time of the act charged.”). Further, an agent acting affirmatively on behalf of the corporation or association must be proven to have the same degree of culpability as if the act were performed on his own behalf, 18 Pa.C.S.A. § 307(e)(1), whereas it is only in the case of an “omission” that the agent’s recklessness can subject him to liability for an intentional crime. 18 Pa.C.S.A. § 307(e)(2). Thus where the indictment seeks conviction upon a theory of reckless omission, the Commonwealth must confine its proof to the omission. This consideration is especially significant here. The indictment charged defendant with committing an offense “on or about May 13, 1975,” the day he affirmatively acted by accepting full payment on behalf of the corporation; it did not specify the “duty to act imposed by law” upon the corporation; nor did it elucidate how the duty had been breached. We cannot say that defendant was not prejudiced in preparing his defense to section 307(e)(2) liability by such an indictment. Finally, the Commonwealth’s failure to specify that it sought conviction upon mere proof of recklessness could have impaired a substantial right, for instance, by affecting defendant’s decision whether to testify at trial. Defendant testified that he did not believe Todd’s report that the samples had been switched. (N.T. at 1487-88). Such testimony, if believed, may have tended to negate “intent,” particularly as it has been applied in theft by deception cases. 18 Pa.C.S.A. §§ 302(b)(1), 3922(a)(1). See, e.g., Commonwealth v. Gallo, 473 Pa. 186, 191, 373 A.2d 1109, 1111 (1977); Commonwealth v. Lynch, 270 Pa.Superior Ct. 554, 567, 411 A.2d 1224, 1236 (1979). Such testimony, however, could be damaging on the issue of recklessness—“consciously disregarding a substantial risk,” 18 Pa.C.S.A. § 302(b)(3)—and may never have been offered by defendant had he known he was being held subject to liability for.a reckless omission. For the foregoing reasons we find the variance between the indictment and the case as submitted to the jury fatal to the verdict so as to entitle defendant to a new trial.

Defendant contends in his appeal the he should be entitled to an arrest of judgment because of the variance, prosecutorial misconduct, and numerous alleged trial errors. This contention is without merit. “It is . . . well settled .. . that only causes appearing on the face of the record, or insufficiency of the evidence, will justify a granting of a motion in arrest of judgment.” Commonwealth v. Jackson, 223 Pa.Superior Ct. 497, 501, 302 A.2d 420, 422-23 (1973). Causes appearing on the face of the record include such fundamental defects as lack of jurisdiction, former jeopardy, or failure of the information to charge an offense. See, e.g., Commonwealth v. L. E. Wilson Co., 458 Pa. 470, 472, 328 A.2d 502, 504 (1974); Commonwealth v. Kacko, 258 Pa.Superior Ct. 516, 393 A.2d 478 (1978); Straley License, 51 Pa.D. & C.2d 493, 494 (C.P. Centre County 1971). For trial errors, prosecutorial misconduct, if any were to be found, and for a fatal variance a new trial is the appropriate relief. Commonwealth v. Perkins, supra; Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967). We thus affirm the order granting a new trial.

Order affirmed.

PRICE, J., did not participate in the consideration or decision of this case.

      . Defendant was charged in three counts with theft by deception, conspiracy to commit theft, and conspiracy to commit burglary. Because his demurrer to the conspiracy to commit burglary was sustained, and because he was acquitted of conspiracy to commit theft, we are concerned here only with the theft by deception charge.

      . Model Penal Code Comments are not binding, but may be used to resolve problems in interpreting Crimes Code provisions. See Commonwealth v. Brown, 473 Pa. 458, 462 n. 4, 375 A.2d 331, 334 n. 4 (1977).

      . Defendant contends also that the lower court erred in allowing Todd to testify against him after receiving an allegedly improper grant of immunity. Because the issue is likely to arise at retrial, we note our agreement with the lower court en banc that defendant lacks standing to challenge the immunity granted to a third person. Commonwealth v. Russell, 225 Pa.Superior Ct. 133, 136, 310 A.2d 296, 298 (1976) (“[0]nly the person whose rights have been violated has standing to challenge [the validity of an order granting immunity]”). Defendant may, of course, raise Todd’s immunity in cross-examination. Id., 225 Pa.Super. at 137, 310 A.2d at 298. Because we do not believe that defendant’s other alleged trial errors or prosecutorial misconduct are likely to recur, we express no view on appellant’s remaining contentions.


text:
    437 A.2d 1004
    Doris CORRELL v. Robert WERNER and Jo Anne Finken, Additional Defendant. Appeal of Robert WERNER. Marvin McCAMMON, a minor, by his Parent and Natural Guardian, Betty McCammon, and Betty McCammon, Individual v. Robert WERNER and Jo Anne Finken and Doris Correll. Appeal of Robert WERNER. Jo Anne FINKEN, v. Robert WERNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1981.
    Filed Nov. 30, 1981.

      Thomas F. Traud, Jr., Allentown, for appellant.
    Kevin J. Kelleher, Easton, for appellees.
    Before PRICE, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in directing verdicts for appellees in these vehicular negligence actions because the issue of contributory negligence should have been submitted to the jury. We agree and, accordingly, reverse the judgments of the court below and remand for a new trial.

“In our Commonwealth, it has long been held that only in a case where the facts are all clear, and there is no room for doubt, should the case be removed from the jury’s consideration, and a motion for a directed verdict or binding instructions be granted.” Stephens v. Carrara, 265 Pa. Superior Ct. 102, 105, 401 A.2d 821, 822 (1979) (citation omitted). “[0]n a motion for a directed verdict, the 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 differences [sic] to the contrary.” Cox v. Equitable Gas Co., 227 Pa. Superior Ct. 153, 155, 324 A.2d 516, 518 (1974) (citations omitted). See also McElhinny v. Iliff, 436 Pa. 506, 511, 260 A.2d 739, 741 (1970). So viewed, the facts may be stated as follows.

At approximately four o’clock on a Friday afternoon, appellant’s automobile struck the rear of appellees’ automobile on Route 191, a two-lane highway, in Bangor, Pennsylvania. Appellant testified that he had been driving southward at thirty to thirty-five miles per hour when he first noticed appellees’ automobile about two hundred feet ahead. Appellant did not then know whether the car was stationary or moving. Appellant next noticed it when he was one or two car lengths behind. He immediately applied his brakes, but could not stop his automobile before colliding with appellees’ automobile. Appellant testified also that he never saw appellees’ brake lights, turn signals, or hand signals. A policeman who had been about seventy-five to one hundred feet from the scene testified that he saw appellees’ automobile drive by, followed about ten seconds later by appellant’s automobile, and that he never saw appellees’ brake lights or turn signals before the accident. The officer testified also that he recognized appellees’ automobile having stopped it two days earlier for defective brake lights and turn signals. Another policeman testified that the turn signals and brake lights did not work after the accident.

At the close of testimony, the lower court directed verdicts against appellant on the issue of liability, ruling that appellees’ contributory negligence could not be submitted to the jury because the lack of appropriate signals was not a proximate cause of the accident. We disagree. “ ‘The rules which determine the causal relation between the plaintiff’s negligent conduct and the harm resulting to him are the same as those determining the causal relation between the defendant’s negligent conduct and resulting harm to others.’ ” Cebulski v. Lehigh Valley Railroad Co., 441 Pa. 230, 233-34, 272 A.2d 171, 173 (1971), quoting Restatement (Second) of Torts, § 465(2) (1965). In Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), our Supreme Court restated the salient principles of proximate causation:

It is settled in the law that except in rare situations not here involved the mere occurrence of an injury does not prove negligence and that an admittedly negligent act does not necessarily entail liability; rather even when it is established that the defendant breached some duty of care owed the plaintiff, it is incumbent on a plaintiff to establish a causal connection between defendant’s conduct and the plaintiff’s injury. Stated another way, the defendant’s conduct must be shown to have been the proximate cause of plaintiff’s injury. . . . Proximate cause is a term of art denoting the point at which legal responsibility 'attaches for the harm to another arising out of some act of defendant, . . . and it may be established by evidence that the defendant’s negligent act or failure to act was a substantial factor in bringing about the plaintiff’s harm.. .. The defendant’s negligent conduct may not, however, be found to be a substantial cause where the plaintiff’s injury would have been sustained even in the absence of negligence.

Id., 481 Pa. at 264-65, 392 A.2d at 1284 (citations omitted throughout). See also Takach v. B.M. Root Co., 279 Pa. Superior Ct. 167, 170-71, 420 A.2d 1084, 1086-87 (1980) (distinguishing “but for” standard from “substantial factor” standard). Thus, a plaintiff’s contributory negligence will bar his recovery if it was a substantial factor in bringing about his injury. See, e.g., Restatement (Second) of Torts, supra § 465(1). If the accident would have occurred even if appellees had not been contributorily negligent, then such contributory negligence would not be a substantial factor. Hamil v. Bashline, supra; Restatement (Second) of Torts, supra § 432(1). Viewing the record, as we must, in the light most favorable to appellant, we cannot conclude that the facts clearly show that this accident would have occurred even if appellees had properly signalled their intention to stop and turn. See McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971) (trial court erred in failing to submit contributory negligence issue to jury when plaintiff-driver had failed to signal intention to stop and turn left before being struck from behind by defendant). In McMahon, as here, the trial court refused to instruct the jury of the plaintiff-driver’s duty to signal. In reversing, the Court stated:

The court en banc, in its opinion, explained that it was not error to refuse the request because: “The accident in this case did not occur because of a turn; Mrs. McMahon did not make a turn, nor did she begin to do so. Assuming that Mrs. McMahon did not operate her turn signals, we do not see that this omission was legally contributory to the accident.” However, proximate cause is for the jury. If Mrs. McMahon’s decision to stop was reached suddenly without warning, a jury might have found a proximate causal relationship between the lack of warning and the appellant’s failure to stop in time to avoid hitting Mrs. McMahon’s car. This would depend on how fast the appellant was found to be driving and how much distance she was found to have kept between her car and Mrs. McMahon’s car.

Id., 442 Pa. at 487, 276 A.2d at 536 (emphasis added). Consequently, we hold that the court below should have submitted the issue of contributory negligence to the jury.

Judgments reversed and case remanded for a new trial.

PRICE, J., did not participate in the consideration or decision of this case.

      . This case arose before the effective date of the comparative negligence statute, Act of July 9, 1976, P.L. 855, No. 152, §§ 1-2, 17 P.S. §§ 2101-2102 (repealed and substantially reenacted by the Act of April 28, 1978, P.L. 202, No. 53, § 10(19), as amended, 42 Pa.C.S.A. § 1702, et seq.). See Costa v. Lair, 241 Pa. Superior Ct. 517, 363 A.2d 1313 (1976) (comparative negligence inapplicable to causes of action accruing before September 7, 1976).

      . At retrial, the lower court should allow the jury to consider appellee-driver’s contributory negligence vis-a-vis her own cause of action, and her alleged negligence vis-a-vis the two appellee-passengers. We note, however, that the lower court should not allow the jury to consider contributory negligence on the part of appellee-passengers absent evidence of their own contributory negligence as opposed to the negligence of appellee-driver. See Thomas v. Tomay, 413 Pa. 270, 273, 196 A.2d 740, 742 (1964).


author: PER CURIAM:

text:
    437 A.2d 1007
    Harold NOVOSELLER v. ROYAL GLOBE INSURANCE CO. and General Accident Group. Appeal of ROYAL GLOBE INSURANCE CO.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed Nov. 30, 1981.

      George D. Sheehan, Philadelphia, for appellant.
    Benjamin Pomerantz, Philadelphia, for Novoseller, appellee.
    Charles W. Craven, Philadelphia, for General, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

This is an appeal from the order of the lower court directing the prothonotary to enter judgment on the award of the arbitrators in favor of Harold Novoseller and against Royal Globe Insurance Co. The prothonotary has not entered the judgment on the docket.

Under Rule 301(c), Pa.R.A.P., such an order is not appealable unless it has been reduced to judgment and docketed before an appeal is taken. Therefore, we must quash this appeal as it is premature. See Ayre v. Commonwealth Court, 58 Pa.Cmwlth. 510, 427 A.2d 1294 (1981).

Appeal quashed.


text:
    437 A.2d 1007
    COMMONWEALTH of Pennsylvania, v. Wilbur Lee BELLAMY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 6, 1981.
    Filed Nov. 30, 1981.
    Francis M. Walsh, Assistant Public Defender, Norristown, for appellant.

      Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

This is an appeal from judgments of sentence for robbery, theft, and criminal conspiracy. Appellant requests an arrest of judgment or a new trial, or remand for an evidentiary hearing on his trial counsel’s effectiveness. Appellant has made no argument in support of an arrest of judgment or a new trial that has not been adequately addressed by the lower court. We shall therefore affirm the judgments of sentence. Appellant’s request for an evidentiary hearing, however, has merit, and will be granted.

Before trial, appellant’s counsel moved to suppress appellant’s criminal record. The lower court stated that it would “defer a ruling on that [motion] until the close of the Commonwealth’s case.” Suppression Hearing at 43. At the close of the Commonwealth’s case, however, trial counsel did not renew the motion to suppress. As a result, appellant contends, he did not testify in his own defense. The failure to testify may be devastating to one’s defense. It may be assumed that a jury will give a silent defendant the benefit of the presumption of innocence due him, but still, the defendant will have lost the value of his own testimony regarding the events that led to his arrest. Here we cannot tell from the record why counsel did not renew the motion to suppress, nor whether his failure to do so was a substantial factor in appellant’s decision not to testify. Accordingly, we must remand for an evidentiary hearing. See, Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Miller, 283 Pa.Superior Ct. 411, 424 A.2d 531 (1981). On remand, the lower court should appoint counsel to represent appellant who is not associated with the Public Defender, who represented appellant at trial and on this appeal.

The judgments of sentence are affirmed, and the case is remanded for further proceedings consistent with this opinion.


text:
    437 A.2d 1008
    Michael LITT and Howard Snitow, Esquire, Co-Executors of the Last Will and Testament of Arlene Litt, Deceased, and Michael Litt, in his own right v. ROLLING HILL HOSPITAL (R. H. Medical Services, Inc.), Appellant and M. H. Alexander, M. D. Appeal of ROLLING HILL HOSPITAL (R. H. Medical Services, Inc.).
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1981.
    Filed Nov. 30, 1981.

      John J. O’Brien, Jr., Philadelphia, for appellant.
    Barton A. Haines, Philadelphia, for Litt, appellees.
    Stephen A. Ryan, Philadelphia, did not file a brief for Alexander, appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   PER CURIAM:

This is an appeal from three judgments aggregating $2,050,000 entered upon praecipe following jury verdicts. Because the court below did not dispose of appellant’s post-trial motions, we do not address the merits of appellant’s contentions and, instead, quash the appeal.

On September 29, 1977, appellees filed an amended complaint against appellant Rolling Hill Hospital (Hospital) and a physician. During trial, appellees elicited evidence that Hospital was a wholly-owned subsidiary of R. H. Medical Services, Inc. (Services), and thereupon they moved to amend their complaint to add Services as an additional defendant. The lower court allowed the amendment over Hospital’s objection. On February 8,1980, the jury returned substantial verdicts for appellees against both Hospital and Services. Three days later, Hospital filed post-trial motions asserting, inter alia, that the lower court erred in permitting appellees to amend their complaint to add Services as a defendant after the statute of limitations had expired. However, Services filed no post-trial motions within the ten-day period allowed under Pa.R.Civ.P. 227.1. On March 7, 1980, appellees filed a praecipe for judgment against Services pursuant to Pa.R.Civ.P. 1039(1) on the ground that it had filed no post-trial motions. That day, the prothonotary duly entered judgments against Services. Although its post-trial motions had not yet been decided, Hospital took this appeal on March 25, 1980. Subsequently, Hospital filed various other motions in the court below. All of Hospital’s motions remain unresolved.

Rule 1701(a) of the Rules of Appellate Procedure provides, in pertinent part, that “after an appeal is taken . . . the lower court . . . may no longer proceed further in the matter.” The lower court relied upon that rule in declining to act upon Hospital’s assorted motions, including its post-trial motions. We agree with the court below that the present appeal is premature and must be remanded for disposition of Hospital’s motions. It is beyond peradventure that an appeal following a jury verdict is premature and must be quashed if taken before the lower court has disposed of post-trial motions. Cf. Slotsky v. Gellar, 455 Pa. 148, 150, 314 A.2d 495, 496 (1974) (appeal following nonjury trial premature when taken before court en banc decided exceptions). See Murray v. Abcon, Inc., 291 Pa. Superior Ct. 428, 435 A.2d 1301 (1981); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa. Superior Ct. 402, 435 A.2d 1288 (1981) (Pa.R.A.P. 301 and Rules of Civil Procedure intermesh to provide essentially uniform procedural prerequisites for appeals in civil matters). Because the filing of the notice of appeal deprived the court below of the opportunity to rule upon Hospital’s post-trial motions and because such disposition is a prerequisite to an appeal we must quash this appeal.

Appeal quashed.

PRICE, J., did not participate in the consideration or decision of this case.

      . Normally, such a failure would effectively preclude appellate review of any issue which could be raised by Services. Gibson v. Miller, 265 Pa. Superior Ct. 597, 602, 404 A.2d 1033, 1036 (1979) (each party is required to file its own exceptions). However, it is well settled that the court may, in its discretion, grant a new trial in the interests of justice to all defendants, even if only one of them has moved for that relief. Bergen v. Lit Brothers, 354 Pa. 535, 537-38, 47 A.2d 671, 673 (1946) (when corporate defendant moved for new trial, lower court could also grant a new trial sua sponte to individual defendants who had not filed any post-trial motions). See also Ferruzza v. Pittsburgh, 394 Pa. 70, 84, 145 A.2d 706, 712 (1958); Sames v. Wehr, 373 Pa. 282, 283-84, 95 A.2d 654, 655 (1953); Lorenz v. Caste Development Co., 368 Pa. 131, 138, 81 A.2d 887, 890 (1951); Thomas v. DeSabato, 168 Pa. Superior Ct. 586, 589, 80 A.2d 862, 863 (1951); Steckel v. Strickland, 50 Pa.D. & C.2d 784, 786-89 (C.P. Monroe County 1971).

      . Rule 1701(c) of the Rules of Appellate Procedure does not affect this appeal. The rule states:
      Limited to matters in dispute. Where only a particular item, claim or assessment adjudged in the matter is involved in an appeal, . . . the appeal . . . shall operate to prevent the lower court ... . from proceeding further with only such item, claim or assessment, unless otherwise ordered ... as necessary to preserve the rights of the appellant.
      The purpose of that provision was to prevent a pending appeal from affecting “separate disputes between other parties or involving separate subject matter.” Pennsylvania Bar Institute, Pennsylvania Appellate Practice under the Rules of Appellate Procedure (Pub. No. 1980-130) at 18. See also Commonwealth v. Baldwin, 282 Pa. Superior Ct. 82, 87, 422 A.2d 838, 841 (1980) (Pa.R.A.P. 1701(c) does not foreclose Superior Court review of wire-tap issue pending Supreme Court review of nighttime search issue); Commonwealth v. Mazzocone, 8 Pa.D. & C.3d 309, 312 (C.P. Chester County 1978) (support order separable from issue of arrearages such that former may be modified while latter is pending appeal to Superior Court). On the present record, we cannot discern whether the matter appealed indeed involves separate parties and separate issues than those presented in Hospital’s post-trial motions.


author: BROSKY, Judge:

text:
    437 A.2d 1010
    COMMONWEALTH of Pennsylvania v. James Michael BARRETT, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1980.
    Filed Dec. 4, 1981.

      William W. Boyd, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.

      Before BROSKY, WATKINS and MONTGOMERY, JJ.
   BROSKY, Judge:

Appellant, James M. Barrett, pleaded guilty to two counts of robbery. On November 15, 1979, he was sentenced to one to four years on the first robbery count and nine months to three years on the second robbery count. The sentences were to be served consecutively. Barrett filed a motion to modify his sentence in light of the fact that two codefendants received lesser sentences through negotiated guilty plea agreements. The motion was denied. This appeal followed. We vacate Barrett’s sentence and remand to the trial court for resentencing. Commonwealth v. Thurmond, 257 Pa.Super. 464, 390 A.2d 1330 (1978).

Barrett contends that the sentence he received is inconsistent with that received by his codefendants. He further asserts that, that being so, the trial court erred in failing to state,in the record, its reasons for giving inconsistent sentences. We agree.

In Commonwealth v. Thurmond, supra, 257 Pa.Super, at 467, 390 A.2d at 1331, we said:

In order for a trial judge to impose different sentences on codefendants, he must find differences between the codefendants to justify the sentences. Commonwealth v. Fitzgerald, 101 Pa.Super. 308 (1931). This writer has said: “Probably nothing has corroded respect for the criminal justice system more than judicial indulgence in unexplained widely disparate sentences.” Commonwealth v. Andrews, 248 Pa.Super. 1, 7, 373 A.2d 459, 462 (1977) (Dissenting Opinion by Spaeth, J.), allocutor granted.

In Commonwealth v. Andrews, 480 Pa. 484, 485, 391 A.2d 989, 989 (1978), our Supreme Court stated that the Superior Court’s opinion was reversed and the judgments of sentence were “vacated and the record remanded to the trial court for consideration in light of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).”

In the instant case, the trial court stated its reasons for sentencing, at some length. However, at no point in its statement was there any discussion regarding the disparity in sentences between Barrett and his two codefendants. The trial court’s statement discloses its knowledge that Barrett had not cooperated with the police when first questioned. However, this may have resulted from a misguided effort to help his codefendants. Commonwealth v. Thurmond, supra., 257 Pa.Super. at 466, 390 A.2d at 1330. The trial court noted also that at the second robbery one of Barrett’s codefendants confronted the victim with a gun. While Barrett stood near the victim and the victim felt he may have had a gun, Barrett was shown not to have had a gun and not to have played an actively affirmative role in that robbery. In the other robbery, Barrett acted as a lookout. The court noted Barrett’s age, 19, and his education, high school drop out, and that Barrett had come from a strictly disciplined family. The court also concluded that Barrett was probably more “passive, although a fully active participant along with” one of his codefendants. And, then Barrett was sentenced. At no time in the court’s formal statement of reasons for sentencing did it explain its reasons for Barrett’s comparatively more severe sentence.

The record does, nevertheless, indicate also that the trial court was presented evidence as to what sentences Barrett’s codefendants received, that they cooperated with the Commonwealth, and that they agreed to testify against Barrett. The court knew something about the history of Barrett’s relationship with his codefendants. And, finally, the court was cognizant of the fact that Barrett’s codefendants had entered negotiated guilty pleas. However, the trial court never stated how these facts influenced its decision to sentence Barrett. Thus, we can only speculate as to the court’s reasons for sentencing Barrett more severely than his codefendants.

Accordingly, we are obliged to vacate Barrett’s judgment of sentence and remand to the trial court for resentencing.


author: MONTEMURO, Judge:

text:
    437 A.2d 1012
    COMMONWEALTH NATIONAL BANK, Appellant, v. C. M. MILLER, Defendant, v. AMERICAN BANK AND TRUST CO. OF PA., Garnishee.
    Superior Court of Pennsylvania.
    Argued May 12, 1981.
    Decided Nov. 30, 1981.

      Robert C. Spitzer, Harrisburg, for appellant.
    R. Hart Beaver, Lebanon, did not file a brief on behalf of Miller, appellee.
    Clemson N. Page, Jr., Reading, for American Bank, appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   MONTEMURO, Judge:

The instant action is the result of a battle between two creditors for the assets of a debtor who had pledged his securities to one financial institution as collateral for refinancing of prior debts and later used his personal assets to obtain a second loan for his corporation. There is no doubt that each bank had a legitimate claim, to repayment. When the debtor’s financial situation collapsed, only one of the creditors was paid in full.

The only issue concerns the claim of the unpaid creditor that two acts of the debtor in regard to the securities amount to fraudulent conveyances, and that it therefore has the right to set aside the transactions and retrieve the assets for repayment of its own debt.

The facts are as follows: several months before the financial difficulties of the debtor became obvious, he requested and was permitted the right to transfer the securities from his own name to that of his and his wife’s name. American Bank, which had held the securities since 1966 and continued to hold them, had no objection to the transfer into entireties property on the explanation that it was for estate planning purposes. Under the U.C.C., 13 Pa.C.S.A. 9203(a)(1), physical possession of collateral perfects the security interest of the creditor. Five months after the transfer into entireties, debtor and his wife executed an hypothecation by which they both agreed that the securities should be applied to the obligations held by American Bank.

Appellant in this action is Commonwealth National Bank (CNB), who argues that the two stock transfers were fraudulent and that American Bank’s participation in these transfers was also fraudulent, with intent to insulate the debtor’s securities from the debt owed CNB. CNB, therefore, argues that it may set aside the transfers as fraudulent conveyances, and that creditor American Bank must disgorge the proceeds it obtained when it sold the securities and applied the money received to its own debt. The proceeds would then, of course, be available to cover the debts owed to CNB.

As to the first transfer of the securities by the debtor from his own name only into his own and his wife’s name, we find the transfer was fraudulent under 39 P.S. 354. Intent is specifically made irrelevant by the statute, and a conveyance of securities into entireties property, thus rendering the husband/debtor insolvent, is per se fraudulent. Appellee, American Bank, argues vigorously that this transaction was in fact part of a three-way transfer supported by fair considerations, but the evidence, as noted by the court below, simply cannot support any such inference.

As to the second transaction by which debtor and his wife repledged the securities to American Bank, there are several important aspects to be considered. The execution of the hypothecation was clearly lacking in “fair consideration” as required by 39 P.S. 354. The transaction took place months after the transfer into entireties property had taken place, and, therefore, would appear to be a gratuitous act by which the owners of the securities returned American Bank to the totally secured position it had enjoyed prior to giving permission for change in ownership into the entireties.

However, although by this act, the debtor returned to his original creditor the ability to sell the securities without impediment, the preference he showed in no way improved the financial standing of the debtor himself.

The Supreme Court, interpreting the Uniform Fraudulent Conveyances Act, has held that a conveyance of property between family members is indeed invalid as to creditors if by the conveyance the grantor renders himself unable to pay his debts:

. . . the theory being that a conveyance whereby a debtor puts his property beyond reach of his creditors under an agreement that it shall be devoted in any way to his own use is constructively fraudulent. Commonwealth v. Smith, 344 Pa. 381, 25 A.2d 694 (1942) and numerous cases cited therein.

The hypothecation in no way devoted the property to the use of debtor or his wife. Indeed, it removed a possible barrier to the use of the securities for repayment of a debt to a bona fide creditor. This court agrees with the court below that the transaction was not fraudulent undér the Uniform Fraudulent Conveyances Act and amounted “to nothing more than an already existing creditor preference.”

This state has long held that there is no fraud involved in the preference of one creditor over another, even if the preferred creditor and the debtor agree in the full knowledge that other creditors will be left unpaid.

One creditor of a bankrupt has a right to take full payment of his debt, knowing that another will not be paid. Hopkins v. Beebe, 26 Pa. 85, 13 L.I. 260, 21 PLJ 628 (1856)
If a creditor takes a judgment or conveyance, or payment in any form, to secure an actual debt, the transaction will be valid against other creditors, although he knew that the effect would be to postpone the others, that the debtor intended it to have that effect and although he took it to aid that intent as well as to protect himself. Whitman v. O’Brien, 29 Pa.Super. 208 (1905)

Decisions since the passage of the Uniform Fraudulent Conveyances Act are in accord with the earlier holdings. See e.g. Pennsylvania Turnpike Commission v. Evans, 13 D&C2d 290, aff’d 392 Pa. 110, 139 A.2d 530 (1958); Berger v. Kraisman, 376 Pa. 127, 101 A.2d 717 (1954).

The securities held by American Bank were sold for a sum exceeding the debt owed it. The original transfer of the securities into entireties property was, as noted above, fraudulent as to both creditors by application of the standards set forth in Section 354 of the Uniform Act. Therefore, that transaction may be set aside by CNB, the money realized from the sale thus becomes husband-debtor’s sole property, and the sum in escrow is therefore subject to levy by the remaining creditor.

We agree with the lower court that an award of counsel fees in the instant matter would be unjustified as the purposes for which such a remedy was provided are not apparent under the facts of the instant action.

The order of thé lower court is hereby affirmed.

HOFFMAN J., concurs in result.

      . The securities sold for an amount in excess of the debt owed to American Bank. The amount over and above the debt has been placed in an escrow account for disposal to the proper party by the court.

      . Appellee’s claim in fact, is errant nonsense. No creditor is going to regard a debtor’s request to transfer securities into entireties as an offer by the debtor to “give up a half interest in exchange” for the creditor’s “forebearance from denying permission” for the transfer. Equally incredible is appellee’s suggestion that the bank was considering demanding full payment of indebtedness in early 1976 and that the transfer into entireties was consideration for forebearing to demand full payment. Had American been considering demanding payment, the last thing it would have requested was that its debtor transfer his securities from his own name into the less-accessible form of entireties property.


text:
    437 A.2d 1229
    In the Interest of H. B., a minor. Appeal of M. L. B.
    Superior Court of Pennsylvania.
    Submitted May 20, 1981.
    Filed Aug. 7, 1981.
    Reargument Denied Jan. 4, 1982.

      Thomas E. Kuhn, Erie, for appellant.
    Joseph T. Kownacki, Erie, for H. B., appellee.
    William A. Dopierala, Erie, for Children’s Services, participating party.
    Before MONTGOMERY, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in adjudicating her daughter dependent, and ordering that the child be placed in foster care under the supervision of Children’s Services of Erie County (CSEC). For the reasons which follow, we vacate the order of the lower court and remand for proceedings consistent with this opinion.

On November 15, 1979, appellant’s daughter, H. B., then six months old, was taken into custody and placed in temporary foster care pursuant to an order of the lower court. On that same day CSEC filed a petition pursuant to the Juvenile Act requesting that the child be declared dependent. Following a detention hearing before a master, the lower court ordered that the child be kept in foster care pending proceedings on the dependency petition. Thereafter, on November 28 and December 3, 1979, the master heard testimony from various witnesses on the issue of dependency. At the close of these proceedings the master issued a report in which he concluded that the evidence did not warrant an adjudication of dependency and recommended that the petition be dismissed. CSEC filed exceptions to the master’s report, and the lower court heard argument thereon. Without taking any further testimony, the court issued an order on January 23, 1980, in which it rejected the master’s recommendation and adjudicated the child dependent. Subsequently, on February 22, 1980, the court ordered, inter alia, that the child continue indefinitely in foster care under the supervision of CSEC. This appeal followed.

The facts underlying the decision of the lower court are substantially undisputed. At the time of the proceedings below appellant was twenty years old, unmarried, unemployed, and on welfare. In late August or early September, 1979, appellant contacted CSEC and requested assistance in finding a new residence and developing parenting skills. Although appellant had been living in her mother’s home, the mother had asked her to leave, and appellant lacked the means to procure new housing and provide properly for her infant daughter. A CSEC caseworker contacted appellant on September 18, and the next day appellant voluntarily placed her daughter in a foster home for thirty days so that she could try to secure a new residence. Appellant thereafter stayed with friends at various addresses until she obtained an apartment of her own sometime in late October or early November. The child remained in the foster home until October 17, after which appellant once again assumed custody.

After being returned to appellant, the child was taken to hospitals on three separate occasions. On October 21, the child was taken to Erie Osteopathic Hospital for treatment of what appellant then described as a red lump on the back of the child’s neck. Examination revealed only heat rash on the neck plus a severe case of diaper rash. The examining doctor recommended an ointment for the latter condition, and the child was released. The other two hospital visits both occurred on November 14. Early in the afternoon and again late in the evening, appellant summoned local ambulances to take her child to two area hospitals when it appeared to her that the child had stopped breathing. On both occasions the child was breathing regularly when ambulance attendants arrived, and upon examination she was found to be suffering from nothing more than a slight upper respiratory infection and was released from the hospitals. On the first occasion, Nurse Virginia Kisko of Erie Osteopathic Hospital noticed that the child was dirty and smelled badly of both vomit and urine. Nurse Kisko observed also that the child had a large sore on her left hand, which was later identified as a cigarette burn. Nurse Jane Ann Meador saw the burn that evening when the child was taken to St. Vincent’s Hospital and also noticed that the child was wearing soiled clothing and smelled of vomit. Both nurses also testified that appellant did not appear to be greatly concerned about her daughter’s condition and that she did not initiate any efforts to hold or comfort the child while at their respective hospitals.

On the basis of what they had observed on the evening of November 14, personnel at St. Vincent’s Hospital filed a report of suspected abuse, and on November 15, CSEC obtained a court order to take custody of the child. Appellant’s caseworker found appellant and the child later that day in a restaurant near appellant’s apartment. Immediately upon entering the restaurant the caseworker noticed that the child quite obviously needed a diaper change. The caseworker further discovered that the milk in a bottle which appellant had given the child was sour. The caseworker then took custody of the child and placed her in foster care, after which these proceedings were commenced.

The testimony before the master revealed additionally that the child had not received certain unspecified immunizations. Appellant explained that she had made several appointments to have her daughter immunized, but that on each occasion she was either unable to obtain transportation to the doctor’s office or the child was ill. Appellant testified also that the cigarette burn on the child’s hand had apparently occurred accidentally while appellant’s sister was babysitting. Regarding the events in the restaurant when the caseworker detained the child, appellant explained that she had been unable to smell her daughter’s sour milk and soiled diaper because her nose was congested from a head cold. Appellant also presented the testimony of several friends who stated that she was a loving mother who had always cared well for her daughter.

Our Court has summarized the standards governing our review of dependency cases as follows:

The Juvenile Act defines a “dependent child,” in pertinent part, as a child who “is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals . . . . ” 42 Pa.C.S.A. § 6302. “Before interfering with a parent’s care or control of a child and ordering the intervention of an agency of the state, a court must first determine that the child is dependent.” In the Interest of Theresa E., 287 Pa.Super. 162, 172, 429 A.2d 1150, 1155 (1981). See 42 Pa.C.S.A. § 6341(a). “[T]he fact of dependency must be proved by evidence that is ‘clear and convincing.’ ” In the Interest of Theresa E., supra, 287 Pa.Super. at 172, 429 A.2d at 1155. See 42 Pa.C.S.A. § 6341(c). “[I]n determining whether a child is dependent, the hearing judge should not ask what are the child’s ‘best interests’ but whether the child is presently without proper parental care and, if so, whether such care is immediately available.” In the Interest of Pernishek, 268 Pa. Super. 447, 458, 408 A.2d 872, 877-78 (1979) (citing In the Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976)). Accord, In the Interest of Theresa E., supra; In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980). A child who has been adjudicated dependent may not be separated from his parents unless such separation is clearly necessary. 42 Pa.C.S.A. § 6301(b)(3); In the Interest of Theresa E., supra; In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132 (1981) (collecting cases). “To ensure a proper resolution of these issues, separate counsel should represent the child at the dependency hearing, and the hearing judge should conduct a comprehensive inquiry by receiving evidence from both interested and disinterested witnesses and should support his decision in an opinion in which he discusses and analyzes the evidence fully.” In the Interest of Pernishek, supra [268 Pa.Super.] at 457, 408 A.2d at 877. Accord, In the Interest of Theresa E., supra; In the Interest of S. M. S., 284 Pa.Super. 9, 424 A.2d 1365 (1981).

In re A. E. M., 288 Pa.Super. 284, 288, 431 A.2d 1049, 1051-52 (1981).

Viewing the case under the aforementioned standards, we conclude that the lower court’s adjudication of dependency cannot stand. It may be that before the hearings appellant’s daughter was without proper parental care or control as set forth in the Juvenile Act. Appellant concededly had sought agency assistance in parenting and finding a new residence, and for a time her life after her departure from her mother’s home was somewhat unsettled. Although the evidence hardly establishes a pattern of abuse, it does strongly suggest that appellant had neglected her daughter’s physical and emotional well-being to some extent. The present record, however, does not clearly and convincingly establish that proper parental care or control was not immediately available. In re A. E. M., supra; In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980); In the Interest of Pernishek, 268 Pa.Super. 447, 408 A.2d 872 (1979). The isolated incidents of neglect set forth in the record do not necessarily warrant the conclusion that the child was likely to continue suffering such treatment. Cf. In the Interest of Black, supra (evidence that parents’ two previous children had died because of improper care and precautions taken by parents warranted finding of dependency of newborn infant). There was precious little evidence directly addressing appellant’s abilities and shortcomings as a parent. The record contains the subjective impressions of nurses who saw appellant with her daughter briefly during hospital visits, as well as those of the foster mother and the caseworker. Absent, however, is any professional evaluation of appellant’s parenting abilities and the child’s prospects with appellant. Cf. In the Interest of S. M. S., 284 Pa.Super. 9, 424 A.2d 1365 (1981) (virtually unanimous conclusions of social workers, psychiatrists, and psychologists constituted clear and convincing evidence of risk of substandard care if child were returned to parents). Moreover, appellant had apparently found a permanent residence as of the time of the master’s hearings, thereby taking a major step toward reversing the “pattern of instability” which motivated the lower court’s decision at least in part. Lower Court Opinion at 6-7. While we do not mean to minimize the risks facing a child whose parent is unwilling or unable to care properly for her, we simply cannot conclude on the present record that such is the case here. Accordingly, we vacate the order of the lower court and remand for further proceedings at which the parties may present evidence regarding appellant’s present capacity to provide the necessary care and control for her daughter. We stress that after conducting the comprehensive inquiry which our cases mandate, should the lower court conclude that appellant is unable to provide proper care and control for her daughter, the court should consider all feasible alternatives in rendering its dispositional order. As noted above,

[t]he law is clear that a child should be removed from her parent’s custody and placed in the custody of a state agency only upon a showing that removal is clearly necessary for the child’s well-being. In addition, this court [has] held that clear necessity for removal is not shown until the hearing court determines that alternative services that would enable the child to remain with her family are unfeasible.

In the Interest of K. B., 276 Pa.Super. 380, 384, 419 A.2d 508, 515 (1980) (Opinion of SPAETH, J.) (citations omitted). See also In the Interest of Pernishek, supra; In the Interest of Whittle, 263 Pa.Super. 312, 397 A.2d 1225 (1979). Finally, in the interest of securing the speediest possible resolution of this matter, we direct the lower court to “proceed with utmost dispatch,” In the Interest of LaRue, 244 Pa.Super. 218, 235, 366 A.2d 1271, 1279-1280 (1976) (plurality opinion), render its final order as soon as the development and consideration of a complete record will allow. Any party aggrieved by the court’s ultimate decision may file a new appeal with this Court, as provided by law.

Order vacated and case remanded for proceedings consistent with this opinion.

      , Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended; 42 Pa.C.S.A. § 6301 et seq.

      . The Juvenile Act requires that such a hearing be held “not later than 72 hours after the child is placed in detention or shelter care to determine whether his detention or shelter care is required” before the full hearing on the petition for dependency. 42 Pa.C.S.A. § 6332(a).

      . The court ordered additionally that appellant participate in a parenting skills program and undergo individual counseling, that “casework counseling be provided in conjunction with both of these programs,” that appellant be provided with “a concrete treatment plan regarding what [she] needs to do prior to the child’s return,” and that appellant have weekly visitation privileges.

      . This case was submitted to us on May 20, 1981, fourteen months after appellant filed her notice of appeal. The delay resulted from the failure of the lower court to file its opinion until December 1, 1980, which the court attributed to appellant’s tardiness in filing a statement of the matters complained of on appeal, pursuant to Pa.R.A.P. 1925. Whatever the reason for it, such inordinate delay seriously affects the vital interests of all concerned in matters involving the welfare of children. Parent and child alike are kept in limbo waiting for a final disposition, and if the decision of the lower court is ultimately reversed on appeal, an unjustified separation of the family may have been needlessly prolonged. Moreover, our ability to review such matters meaningfully is greatly hampered when we are provided with a stale record which may well no longer accurately reflect the circumstances of the parties. Accordingly, members of the bar and bench alike are urged to take all possible steps to ensure the speedy disposition of such cases.

      . The child’s father lives apart from appellant, has apparently never cared for nor had custody of the child, and has not taken part in these proceedings.

      . Even before appellant first contacted CSEC, the agency had received several confidential referrals concerning appellant’s daughter, at least one of which alleged that the child was suffering from “lack of supervision, abuse ..., neglect, and a severe diaper rash.” N.T. November 28, 1979 at 44. It appears further that appellant left her daughter in the care of a babysitter for the entire month of August, 1979. The record does not reveal the identity of this individual, the circumstances or total duration of the placement, or the frequency of appellant’s visits (if any) while the child was in the custody of the babysitter.

      . Appellant removed her child from the foster home for the period from October 5 to October 13, explaining at the hearing that “I wanted her with me.” N.T. December 3, 1979, Vol. II at 13. It is not clear where appellant and her daughter resided during that eight-day period.

      . Additionally, the foster mother testified that during a visit with the child in the foster home in late September, appellant had seemed not to know how to take care of and relate to her daughter, and the child did not appear to recognize appellant.


author: SPAETH, Judge:

text:
    437 A.2d 1234
    Tony VESPAZIANI and Viola Vespaziani, his wife, v. Pete INSANA, individually and t/d/b/a Pete Isana Auto Body Repair and Towing, and Richard Insana. Appeal of TRANSPORT INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed Oct. 9, 1981.
    Reargument Denied Jan. 4, 1982.
    Petition for Allowance of Appeal Granted June 17, 1981.

      Joseph F. Grochmal, Pittsburgh, for appellant.
    Daniel M. Berger, Pittsburgh, for appellees.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from an order denying a petition for leave to intervene as use plaintiff in a trespass action. We affirm.

Tony Vespaziani, while in the course of his employment, was injured in a motor vehicle accident. As a result, he received workmen’s compensation benefits from The Transport Insurance Company. When Vespaziani brought an action in trespass against the driver and owner of the other vehicle, Transport filed a petition for leave to intervene as use plaintiff.

The petition alleged that Transport is subrogated to Vespaziani’s rights against the driver and owner of the other vehicle “to the extent that Workmen’s Compensation Benefits paid and payable to Vespaziani are in excess of Basic Loss Benefits as construed under the Pennsylvania No-Fault Motor Vehicle [Insurance] Act [Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101, 40 P.S. § 1009.101 et seq (Supp.1981-22)].” Petition, para. 10. The lower court denied the petition, and Transport took this appeal.

The No-Fault Act “abolished” Vespaziani’s right to sue the driver and owner of the other vehicle, with certain exceptions. 40 P.S. § 1009.301(a). One of these exceptions is that the driver and owner of the other vehicle “remain[] liable for loss which is not compensated because of any limitation in accordance with section 202(a), (b), (c), or (d) of this Act.” 40 P.S. § 1009.301(a)(4). Section 202 is entitled “Basic loss benefits.” 40 P.S. § 1009.202. Section 202(b) provides that “[w]ork loss . . . shall be provided ... up to a total amount of fifteen thousand dollars ($15,000).” 40 P.S. § 1009.202(b).

In other words—and surely Dante would have condemned the authors of the No-Fault Act to be lost in a labyrinth of their own devising—if one is hurt in an automobile accident, he has no right to sue the other driver, unless he has suffered a work loss of over $15,000. If he has suffered a work loss of over $15,000, he may sue the other driver for so much of his loss as exceeds $15,000, for as to that excess he will not have been compensated by his No-fault insurance.

The question presented by this appeal is, How is one’s right to sue the other driver affected if, like Vespaziani, one has received not only No-fault insurance benefits but also workmen’s compensation benefits?

Under the No-Fault Act “[b]asic loss benefits” means “benefits provided . . . for the net loss sustained by a victim.” 40 P.S. § 1009.103. “Net loss” means “loss less benefits or advantages required to be subtracted from loss in calculating net loss.” Id. One of the benefits required thus to be subtracted is “all benefits . . . that an individual receives or is entitled to receive from . . . workmen’s compensation.” 40 P.S. § 1009.206(a).

In other words: Suppose as a result of a motor vehicle accident one has suffered a work loss of $100,000, and has received workmen’s compensation benefits of $25,000. In determining his ability to sue the driver of the other vehicle, such a person must proceed with the following computation. From his work loss of $100,000 he subtracts the $25,000 he has received in workmen’s compensation benefits, giving him a net loss of $75,000. Under the No-Fault Act he is entitled to be compensated for his loss, but only up to a total amount of $15,000. Consequently, to the extent of $60,000 he has not been compensated for his loss. Therefore, to that extent the other driver “remains liable” to him, and may be sued.

Such an exercise shows, or so we hope, that Transport’s petition to intervene is without merit. Vespaziani may maintain his trespass action against the driver and owner of the other vehicle—using the figures of the case we have just supposed, he may recover $60,000. However, Transport is not entitled to share in that recovery. If Vespaziani were entitled to recover from the driver and owner of the other vehicle the $25,000 workmen’s compensation benefits received from Transport—again, to use the figures we have supposed—then he would be entitled to recover not $60,000 but $85,000, and Transport would be entitled to subrogation to the extent of the $25,000 workmen’s compensation benefits it had paid. However, Vespaziani is not entitled to recover the workmen’s compensation benefits from the driver and owner of the other vehicle. He is not because he is only entitled to recover from them an amount computed after subtracting those benefits. To resort to a colloquialism: Vespaziani is suing the driver and owner of the other vehicle for apples. Transport is only entitled to oranges. Cf. Brunelli v. Farelly Brothers, 266 Pa.Super. 23, 402 A.2d 1058 (1979).

No doubt the Legislature might have provided otherwise. Certainly in a fault-based system, a workmen’s compensation carrier might reasonably be allowed to recoup the benefits it had paid an employee, and to do so by intervening in the employee’s action against the tortfeasor. However, the purpose of the No-Fault Act is not to place the cost of a wrong upon the wrongdoer but instead, to provide a comprehensive low-cost system of compensating victims of motor vehicle accidents without regard to fault. 40 P.S. § 1009.-102. In providing such a system the legislature has decided to place the initial burden of compensating motor vehicle accident victims on primary insurers such as workmen’s compensation carriers, even though this may have the effect of lessening the amount of damages the tortfeasor may have to pay.

Affirmed.

      . Pa.R.Civil P. 2328(a) provides:
      (a) Application for leave to intervene shall be made by a petition in the form of and verified in the manner of a plaintiff’s initial pleading in an action of assumpsit, setting forth the ground on which intervention is sought and a statement of the relief or the defense which the petitioner desires to demand or assert. The petitioner shall attach to the petition a copy of any pleading which he will file in the action if permitted to intervene or shall state in the petition that he adopts by reference in whole or in part certain named pleadings or parts of pleadings already filed in the action.
      Transport did not comply with this rule, for it did not “attach to [its] petition a copy of any pleading which [it would] file in the action if permitted to intervene,” nor did it state that it would “adoptQ by reference in whole or in part” any pleading “already filed.” See also, Goodrich Amram 2d, § 2328(a). However, the lower court accepted the petition as filed and ruled on its merits, and appellee has not objected.

      . There are separate provisions telling how “work loss” is to be cálculated, but they are not pertinent to our discussion. 40 P.S. § 1009.205.