author: BROSKY, Judge.

text:
    611 A.2d 1218
    COMMONWEALTH of Pennsylvania v. Frederick W. WEIS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1992.
    Filed June 18, 1992.

      Wilbert H. Beachy, III, Public Defender, Somerset, for appellant.
    Carolann A. Young, Asst. Dist. Atty., Somerset, for the Com., appellee.
    Before ROWLEY, President Judge, and CIRILLO and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence entered following appellant’s conviction for driving while under the influence of alcohol to a degree which rendered him incapable of safe driving. The following issues are presented for our review: (1) whether appellant is entitled to an arrest of judgment because the verdict was against the sufficiency and weight of the evidence; (2) whether appellant is entitled to a new trial because: (a) the Commonwealth failed to produce expert testimony relating appellant’s blood-alcohol level back to the time of the accident, and (b) an accident reconstruction expert, who submitted a report after appellant’s trial, concluded that a blown-out tire caused the accident; and (3) whether the trial court erred in refusing to grant appellant’s request for a stay or supersedeas of the surrender of his operator’s license. For the reasons set forth below, we affirm the judgment of sentence.

Before addressing the merits of appellant’s claims, it is necessary to recount the relevant facts of this case. Appellant, Frederick Weis, Jr., was a construction superintendent on a project conducted at Hidden Valley Resort, located in Somerset County, Pennsylvania. After completing his work on October 28, 1988, appellant attended a party that was held at Hidden Valley for the construction employees. Appellant admittedly consumed approximately three seven-ounce beers during the two-hour period in which he was at the party. Appellant left the party at approximately 5:30 p.m. to check on pumps at the construction site. Appellant then proceeded to the Tips Up restaurant where he consumed an entire eight-cut medium-sized pizza and at least three twelve-ounce beers. Appellant remained at the restaurant from approximately 6:00 p.m. until 8:30 p.m. Following the ingestion of his meal, appellant left the restaurant and returned to his weekday residence at Hidden Valley where he showered and placed a telephone call to his family in Pittsburgh, Pennsylvania. At approximately 9:30 p.m., appellant left to socialize with some friends. Because appellant’s companions were not at home, appellant decided to return to the Tips Up restaurant to search for them.

In traveling to the restaurant, appellant turned onto State Route 31 and proceeded in an easterly direction. Mr. Robert Ankney, who was also driving in the eastbound lane of Route 31, observed appellant’s entry onto the highway in front of the Ankney vehicle. Mr. Ankney decided to pass appellant’s truck because appellant was driving at a rate of approximately twenty-five (25) to thirty (30) miles per hour. Mr. Ankney consequently pulled his tractor-trailer into the westbound lane to accomplish this manoeuvre. According to Mr. Ankney, appellant began to accelerate his vehicle as Mr. Ankney began to overtake appellant. In turn, Mr. Ankney increased the speed of his vehicle. While the two vehicles were proceeding down a hill, Mr. Ankney observed appellant’s vehicle suddenly cross the center line and collide with the tractor-trailer. Although Mr. Ankney had moved onto the berm of the westbound side of the highway to avoid a collision, he lost control of his vehicle. The tractor-trailer traveled on the berm and/or westbound lane of the highway for a short distance, then traversed the parking lot of Debbie’s Green Meadow Tea Room, a restaurant that was situated on the westbound side of Route 31. Mr. Ankney’s vehicle finally stopped after it sheared off a large pine tree which measured eighteen inches in diameter. Appellant’s vehicle also crossed the parking lot and stopped in a grassy area behind the restaurant.

Both vehicles sustained extensive damage in the accident and the injured drivers were taken to a hospital for treatment. In investigating the condition of the drivers, Trooper Sandor observed that appellant exuded an odor of alcohol. There was no indication that Mr. Ankney had consumed any alcohol, however. Blood-alcohol tests were performed on appellant while he was receiving treatment at the hospital. The first test, performed at 10:40 p.m., revealed that appellant had a blood-alcohol content of .136%. A second test performed on a sample of whole blood which had been withdrawn at 11:45 p.m. revealed that appellant’s blood-alcohol level had decreased to .101%. N.T. 8/31/89 at 247-248, 251 and 252-253. Appellant was subsequently charged with driving while under the influence of alcohol, as defined by the Motor Vehicle Code. See 75 Pa.C.S.A. §§ 3731(a)(1) and (a)(4). Appellant was additionally charged with a summary violation of failing to give way to an overtaking vehicle. See 75 Pa.C.S.A. § 3303(a)(2).

A jury trial was held from August 30 through September 1, 1989, following which appellant was acquitted of the charge of driving while his blood-alcohol level was .10% or more, but convicted of driving while under the influence of alcohol to a degree which rendered him incapable of safe driving. After the entry of the jury verdict, the trial court acquitted appellant of the summary offense of failing to give way to an overtaking vehicle because no evidence was produced at trial that Mr. Ankney had given a suitable signal of his intent to pass appellant. See 75 Pa.C.S.A. § 3303(b) (defining suitable signal as an intermittent flash of high and low headlight beams or an audible signal).

Appellant filed timely post-trial motions which were denied by the trial court. Appellant was subsequently sentenced on March 14,1991 to a term of forty-eight (48) hours to twelve (12) months’ imprisonment. In addition, appellant was directed to immediately relinquish possession of his operator’s license to the court clerk for transmission to the Pennsylvania Department of Transportation. Appellant thereafter filed a timely motion for modification of sentence in which he contested the confiscation of his operator’s license. Appellant’s motion was denied by the lower court. A timely appeal was then initiated with this court.

Appellant first asserts that he is entitled to an arrest of judgment because the verdict was against the sufficiency and weight of the evidence. With respect to the issue as framed by appellant, we initially note that an arrest of judgment is not the proper form of relief where the verdict is found to be against the weight of the evidence. See Commonwealth v. Taylor, 324 Pa.Super. 420, 424-425, 471 A.2d 1228,1229-1230 (1984) (providing an erudite explanation of the differences between sufficiency and weight of the evidence claims and the tests and relief to be applied for each). Instead, the appropriate remedy is to vacate the judgment of sentence and grant the defendant a new trial. See id.

Although appellant appears to have presented challenges to both the sufficiency and weight of the evidence in his statement of the questions involved, further study of appellant’s brief discloses that his arguments are directed to the sufficiency rather than the weight of the evidence. We will therefore only address the merits of appellant’s sufficiency claim.

In reviewing the sufficiency of the evidence^] we are required to view the evidence, and all reasonable inferences therefrom, in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, when so viewed, is sufficient to prove every element of the crime beyond a reasonable doubt.

Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992) (citations omitted). Accord: Commonwealth v. Modaffare, 529 Pa. 101, 103-104, 601 A.2d 1233, 1234 (1992).

Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact, while passing upon the credibility of the witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986). The evidence presented at trial and appellant’s arguments relating thereto will be evaluated in accordance with these principles.

Appellant contends that the evidence was insufficient to sustain his conviction because it failed to establish that he operated his vehicle in an unsafe manner. Appellant’s analysis begins with his own theory in which he suggests that the accident was caused by the fact that his left-front tire blew-out prior to impact with Mr. Ankney’s tractor-trailer. Appellant also believes that Mr. Ankney’s alleged attempt to pass appellant’s vehicle in a no-passing zone contributed to the collision. Based upon this theory of the accident, appellant reasons that the Commonwealth should have retained an accident reconstruction expert to investigate the merits of appellant’s defense theory. Appellant then concludes that the Commonwealth’s failure to present evidence to negate his defense theory renders the Commonwealth’s evidence insufficient, as a matter of law to sustain the conviction. Aside from a citation to 2 R. Wasserbly, Pennsylvania Criminal Practice § 26.02 (rev. April 1992), appellant does not refer us to any authority which would buttress his novel interpretation of the Commonwealth’s burden of proof and its alleged duty of investigation in criminal proceedings.

We have examined the particular provision of the Wasserbly treatise cited by appellant and, notwithstanding appellant’s construction thereof, find his reliance thereon to be puzzling as it tends to negate rather than advance his argument. Appellant’s defense theory, as described above, falls within the accident category of affirmative defenses. See Wasserbly, supra § 26.01 (rev. April 1992) (identifying various affirmative defenses). In discussing the Commonwealth’s burden with respect to disproving an affirmative defense, Wasserbly explains:

There is no legal burden on the Commonwealth to establish the absence of an affirmative defense unless the defense is raised during the trial. In other words, for purposes of persuasion and burden of proof, the absence of [an affirmative defense] is not an element of any offense unless the issue is raised at some point during the trial____ When evidence from any source exists to raise an issue relating to an affirmative defense, the burden falls on the Commonwealth to disprove the defense____ The evidence raising the issue of an affirmative defense may come from any source, including the defendant’s evidence, defense cross-examination of Commonwealth’s witnesses, the Commonwealth’s cross-examination of defense witnesses, or the Commonwealth’s case in chief.

Wasserbly, § 26.02, supra (footnotes omitted). As made clear by Wasserbly, the Commonwealth has no duty to negate an affirmative defense unless and until it has been raised in some manner at trial. Moreover, Wasserbly does not indicate that the Commonwealth must undertake any investigative duties, such as securing the services of an expert, to disprove any and all affirmative defenses which might possibly arise prior to trial. Wasserbly likewise does not require the Commonwealth to produce additional evidence in fulfillment of its burden to negate an affirmative defense once it has been properly raised, as the Commonwealth can certainly rely upon its existing evidence if it believes such evidence sufficient to negate the affirmative defense. Appellant’s reliance upon Wasserbly is therefore misplaced.

Although appellant does not provide us with reference to other authorities, we find the following discussion set forth by our Supreme Court to be instructive.

In any criminal prosecution, the Commonwealth has an unshifting burden to prove beyond a reasonable doubt all elements of the crime____ This burden is neither increased nor diminished by an attempt by a defendant to disprove [an] element [of the crime]____ Whether the Commonwealth will, in a particular case, elect to carry that burden without introducing evidence to negate the existence of a[n] [affirmative defense], or whether it will seek to introduce such evidence, will be for it to decide; as in every case, the risk of nonpersuasion remains with the Commonwealth____ We emphasize that our insistence upon the Commonwealth’s burden to prove beyond a reasonable doubt all elements of the crime does not require it to disprove a negative. Thus, to enable a defendant to seek to negate [an element of the crime], there must be evidence in the case sufficient to place in issue that fact concerning [that element]. Such evidence may be adduced by the defendant as part of his case, or, conceivably, may be found in the Commonwealth’s own case in chief or be elicited through cross-examination. Once a defendant has come forward with such evidence, or it is in the case otherwise, the Commonwealth, as we have indicated above may introduce testimony to refute it, but is under no duty to do so.

Commonwealth v. Rose (I), 457 Pa. 380, 389-390, 321 A.2d 880, 884 (1974) (emphasis added). Accord: Commonwealth v. Rose (II), 463 Pa. 264, 268-269, 344 A.2d 824, 826 (1975). In his concurring opinion, Chief Justice Jones echoed these sentiments and asserted that “[d]ue process does not require that the Commonwealth disprove affirmative defenses beyond a reasonable doubt.” Commonwealth v. Rose (I), 457 Pa. at 394, 321 A.2d at 887 (concurring opinion by Jones, C.J.). This court has similarly recognized that “it is not necessary for the Commonwealth to anticipate and rebut all possible defenses.” Commonwealth v. Shenkin, 337 Pa.Super. 517, 525, 487 A.2d 380, 384 (1985).

Application of these principles to the facts of this case persuades us that, contrary to appellant’s assessment, the Commonwealth was not required to secure an accident reconstruction expert to investigate and rule out any and all possible defense theories before instituting criminal charges against appellant. Further, the Commonwealth was not required to disprove potential defense theories in its case-in-chief, unless and until an affirmative defense negating a specific element of the crime had been presented. Moreover, once an affirmative defense negating a specific element of the crime was properly raised, the Commonwealth did not have any duty to present additional testimony if it determined that its existing evidence was sufficient to refute the defense. We therefore reject appellant’s contention that the evidence was insufficient per se because of the Commonwealth’s failure to prove that the collision was not due to an accident.

Having found appellant’s initial arguments to be without merit, we will nevertheless proceed to evaluate the sufficiency of the evidence presented by the Commonwealth in this case. To sustain appellant’s conviction under 75 Pa. C.S.A. § 3731(a)(1), the Commonwealth was required to prove: (1) that appellant drove, operated or was in actual physical control of the movement of his vehicle; (2) while he was under the influence of alcohol to a degree which rendered him incapable of safe driving. Commonwealth v. Griscavage, 512 Pa. at 544, 517 A.2d at 1258. With respect to these elements, it was undisputed that appellant was the operator of the vehicle at the time of the accident. Thus, the first element is not at issue here. To establish the second element, the Commonwealth first presented the testimony of Mr. Ankney and Trooper Sandor, who investigated the accident.

Mr. Ankney testified that he was in a passing zone when he initially attempted to overtake appellant’s vehicle. N.T. 8/30/89 at 19. The photographs of the accident site corroborated Mr. Ankney’s testimony in that the zone changed from a passing to a no-passing zone at the western edge of the parking lot of Debbie’s Green Meadow Tea Room. See Defendant’s Exhibit No. 2 and Unmarked Photographs. Thus, Mr. Ankney was lawfully permitted to pass appellant’s vehicle when he initially pulled into the westbound lane. Mr. Ankney further indicated that he had approximately one-half mile in which to complete his pass, but was prevented from doing so by appellant’s actions. N.T. 8/30/89 at 20 and 86. As he attempted to overtake appellant, Mr. Ankney testified that appellant’s vehicle crossed over the centerline, entered the westbound lane in which Mr. Ankney was travelling, and ultimately struck Mr. Ankney’s vehicle. Id. at 21, 76 and 78-79.

Trooper Sandor testified as to his observations of appellant and the accident site. Because the accident rendered appellant unconscious, Trooper Sandor was unable to detect the typical indicia associated with an intoxicated state. However, he did note a moderate odor of alcohol emanating from appellant. Id. at 95 and 163. During his investigation of the accident site, Trooper Sandor also observed skid marks and tire tracks created by the vehicles and concluded that appellant’s vehicle had crossed the centerline into the westbound lane and collided with Mr. Ankney’s tractor-trailer. Id. at 97-98; N.T. 9/1/89 at 82-83. Trooper Sandor’s determinations regarding the placement of appellant’s vehicle remained unshaken despite vigorous cross-examination by defense counsel. N.T. 9/1/89 at 90-91, 94, 97-98, 100, 102, 104, 106, 111 and 114.

In addition to this testimony, the Commonwealth introduced the blood-alcohol test results which revealed that appellant had respective blood-alcohol levels of .114% and .101%, one and two hours after the accident. These test results indicated that appellant’s blood-alcohol level had peaked at some point before the second sample had been withdrawn, and thus, was declining or decreasing when the second sample was taken. N.T. 8/30/89 at 253-254. Moreover, the Commonwealth’s witness indicated that appellant’s rate of dissipation of alcohol was between .013% and .015%. Id. at 253; N.T. 9/1/89 at 129. Using these dissipation rates, appellant’s blood-alcohol level at the time of the accident was calculated to be between .127% and .129%. N.T. 9/1/89 at 129.

To negate the Commonwealth’s evidence, appellant introduced the testimony of various friends, family members and coworkers who either spoke with or observed appellant before he left his residence at 9:30 p.m. N.T. 8/31/89 at 115-194. All of these witnesses testified that appellant did not exhibit the classical signs of intoxication and that appellant appeared to act and speak in a normal manner. However, the absence of extreme impairment or other tangible behavior is not necessarily dispositive of appellant’s ability to operate his vehicle in a safe manner. Commonwealth v. Griscavage, 512 Pa. at 545, 517 A.2d at 1258. In fact, appellant’s own medical expert, Dr. Spiker, indicated that at the blood-alcohol level appellant possessed at the time of the accident, which he estimated to be between .08% and .09%, appellant’s judgment, perception, coordination, reflexes and reaction time would have been affected to some extent. N.T. 8/31/89 at 251-252. Although Dr. Spiker was unable to express an opinion as to the precise degree to which appellant’s blood-alcohol impinged upon his ability to drive safely, he admitted that a blood-alcohol reading of .10% was generally accepted as the point at which 100 percent of the population would be impaired. Id. at 263. See also Commonwealth v. Gonzalez, 519 Pa. 116, 127 n. 3, 546 A.2d 26, 31 n. 3 (1988) (recognizing that it is now universally accepted that a person with a blood-alcohol percentage of .10 should not be driving). Dr. Spiker further stated that as an individual’s blood-alcohol level increased, the individual’s degree of impairment would likewise increase. N.T. 8/31/89 at 262-263. Appellant additionally attempted to demonstrate, primarily through his cross-examination of Trooper Sandor, that the skid marks and tire tracks depicted in the photographs and observed by Trooper Sandor were attributable to the left rather than right front tire. Thus, appellant sought to establish that appellant’s sudden swerve into the path of Mr. Ankney’s vehicle could have been caused by the explosion of the left-front tire on appellant’s vehicle.

Although the Commonwealth did not present additional witnesses to rebut appellant’s defense theory, Trooper Sandor stated that the skid marks were inconsistent with the type of mark which would have been observed if the tire had been deflated prior to the collision. N.T. 9/1/92 at 94, 100, 102 and 111. In fact, Trooper Sandor testified that the left-hand tire was still inflated when he checked the vehicle immediately after the collision. Id. at 111-112. Trooper Sandor further supported his conclusions by indicating that the peculiar pattern found in the skid marks left by appellant’s vehicle was consistent with the type of marks which would be made by an inflated tire that is making a sharp turn. Id. at 97-98. He also indicated that a deflated tire would have left either a gouge mark on the highway or a different type of mark. Id. at 94,100 and 102. In addition, Trooper Sandor traced the skid marks to tire tracks which went through the grassy area behind the restaurant and observed that they led directly to the right side of appellant’s vehicle. Id. at 82 and 90-91.

The above evidence, viewed in the light most favorable to the Commonwealth, sufficiently established that appellant drove, operated or was in actual physical control of his vehicle while under the influence of alcohol to a degree which rendered him incapable of driving safely. Appellant admittedly ingested alcohol prior to the accident. While appellant may not have exhibited the typical intoxication symptoms, appellant’s own expert admitted that appellant’s judgment and other faculties were affected to some degree by appellant’s consumption of alcohol. Further indication of appellant’s inability to drive safely is found in the fact that appellant caused his vehicle to cross the centerline and collide with Mr. Ankney’s overtaking vehicle. Although appellant attempted to demonstrate that the accident was caused by a blow-out of his tire, a non-alcohol related factor, it was the responsibility of the jury to evaluate the evidence and determine whether the accident was due to appellant’s alcohol consumption or a mechanical defect. In rendering its verdict, the jury obviously disbelieved appellant’s speculative and unsubstantiated theory. The jury’s rejection of appellant’s theory, however, does not render the Commonwealth’s evidence insufficient. Under these circumstances, the evidence presented by the Commonwealth adequately supported appellant’s conviction under 75 Pa. C.S.A. § 3731(a)(1).

In his second and third issues, appellant contends that the evidence was insufficient to sustain his conviction, or in the alternative, that he was entitled to a new trial because the Commonwealth failed to relate appellant’s blood-alcohol level back to the time of the accident in its case-in-chief. In support of his position, appellant relies upon Commonwealth v. Gonzalez, supra. We have thoroughly reviewed Gonzalez and nowhere therein did the Supreme Court hold that it was necessary for the Commonwealth to relate blood-alcohol test results back to the time of driving to sustain a conviction under 75 Pa.C.S.A. § 3731(a)(1). Rather, the Supreme Court held that if the defendant was convicted under § 3731(a)(4), the expert witness’ testimony was inadmissible for the purpose of relating back the defendant’s blood-alcohol level to the time of the accident because the witness did not have the requisite knowledge of particular facts which would enable him to render an opinion with reasonable certainty. Commonwealth v. Gonzalez, 519 Pa. at 134, 546 A.2d at 35. However, the Supreme Court indicated that the expert’s testimony was admissible with respect to a conviction under § 3731(a)(1) because no specific blood-alcohol level was required to prove a violation of this section, as long as the defendant’s blood-alcohol content exceeded .05%. Id., 519 Pa. at 126 and 134, 546 A.2d at 31 and 35. The Supreme Court further noted that it would have affirmed the defendant’s conviction under § 3731(a)(1), despite the fact that the defendant’s blood-alcohol level could not be related back to the time of the defendant’s driving. Id., 519 Pa. at 135, 546 A.2d at 35.

Although neither the trial court nor the parties had the benefit of the Pennsylvania Supreme Court’s recent decisions in Commonwealth v. Jarman and Commonwealth v. Modaffare, supra, at the time of appellant’s trial, these decisions support appellant’s arguments to the extent that they require the Commonwealth to present sufficient evidence of a defendant’s blood-alcohol level at the time of driving to prove a violation of 75 Pa.C.S.A. § 3731(a)(4) beyond a reasonable doubt. See Commonwealth v. Jarman, 529 Pa. at 95, 601 A.2d at 1230-1231; Commonwealth v. Modaffare, 529 Pa. at 104, 601 A.2d at 1235-1236. Neither of these decisions affords appellant relief, however. In this case, appellant was acquitted of the offense arising under § 3731(a)(4) and was only convicted of driving while under the influence of alcohol to a degree which rendered him incapable of driving safely, as defined by 75 Pa.C.S.A. § 3731(a)(1). As recognized by the Supreme Court, it is unnecessary to establish a specific blood-alcohol level to prove a violation of 75 Pa.C.S.A. § 3731(a)(1). See Commonwealth v. Gonzalez, 519 Pa. at 126, 546 A.2d at 31. Commonwealth v. Jarman and Commonwealth v. Modaffare do not overrule Commonwealth v. Gonzalez nor do they otherwise require the Commonwealth to establish a particular blood-alcohol level to sustain a conviction under 75 Pa.C.S.A. § 3731(a)(1). Because it was unnecessary for the Commonwealth to establish a blood-alcohol level in excess of .10% for a conviction under § 3731(a)(1), the evidence was not rendered insufficient nor is appellant entitled to a new trial on this basis.

In the remaining portion of his third issue, appellant contends that he is entitled to a new trial because of his belated discovery of additional evidence after the conclusion of the trial. A new trial may be granted on this basis only if the new evidence:

(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence;
(2) is not merely corroborative or cumulative;
(3) will not be used solely for impeaching the credibility of a witness; and
(4) is of such nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Nocero, 399 Pa.Super. 346, 355-356, 582 A.2d 376, 380 (1990), allocatur denied, 527 Pa. 643, 593 A.2d 416 (1991), quoting Commonwealth v. Hunter, 381 Pa.Super. 606, 618, 554 A.2d 550, 555 (1989). See also Commonwealth v. McCracken, 373 Pa.Super. 90, 100, 540 A.2d 537, 541-542 (1988), affirmed per curiam, 524 Pa. 332, 572 A.2d 2 (1990) (same). Moreover, “absent a clear abuse of discretion, the trial court’s refusal to grant a new trial on the basis of after-discovered evidence will not be disturbed on appeal." Commonwealth v. Nocero, supra. We will review appellant’s arguments in accordance with this standard.

The after-discovered evidence in this case relates to a report submitted by an accident-reconstruction expert who concluded that the skid marks made by appellant’s vehicle were consistent with a deflated left-front tire, rather than an inflated right front tire. Thus, appellant seeks a new trial to establish that his vehicle remained in its proper lane of travel prior to the accident and that the collision was caused by a blow-out of his left front tire prior to impact with Mr. Ankney’s vehicle. Appellant asserts that the discovery of this report satisfies the above requisites. Although we agree with appellant that the second and arguably the fourth prongs of the test have been satisfied, he has failed to establish either the first or the third elements.

With respect to the first requirement, appellant argues that the report could not have been obtained prior to trial because photographs depicting the skid marks did not become available until the close of the second day of trial. While the expert undeniably based his conclusions upon these particular photographs, appellant does not explain why he was required to rely upon the Commonwealth’s photographs. The location of the accident involved an unrestricted state highway that was equally available to all of the parties. In fact, appellant visited the scene of the accident following his release from the hospital and took measurements of various skid marks. N.T. 8/31/89 at 71-86. Thus, appellant had ample opportunity to obtain his own photographs of the skid marks which he could have submitted to an accident reconstruction expert well in advanee of trial. In addition to appellant’s failure to take his own photographs of the collision site, appellant does not indicate why he could not have submitted the existing evidence, such as his own measurements or the photographs of his vehicle which were taken after the accident, to an accident reconstruction expert. Appellant also could have requested a continuance of the trial upon learning of the existence of the photographs, but chose not to do so. Under these circumstances, appellant has not offered sufficient excuse as to why the accident reconstruction expert’s opinion could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence. Appellant therefore has failed to comply with the first prong of the test.

In support of the third element, appellant suggests that the evidence would not be introduced for the sole purpose of impeaching the credibility of either Mr. Ankney or Trooper Sandor because neither of these individuals was an accident reconstruction expert. The essence of appellant’s ridiculous reasoning is that an expert witness’ opinion does not impeach a contradictory opinion expressed by a less-qualified expert or non-expert witness on the same issue or fact. This is a distinction without a difference. Whenever a party offers a witness to provide evidence that contradicts other evidence previously given by another witness, it constitutes impeachment, regardless of the status of the witnesses as experts or laymen. See, e.g., L. Packel & A. Poulin, Pennsylvania Evidence, § 608 and § 608.10 (1987) (discussing impeachment by contradiction).

More importantly, appellant does not enlighten us as to what other purpose would be served by the introduction of the accident reconstruction’s opinion, except to note that this testimony would establish the truth of how the accident occurred. While appellant’s claim is undoubtedly true, the quest for truth is presumably the object of all litigation and is a matter which is to be determined by the trier-of-fact. It does not advance our present inquiry, however. Assuming that appellant’s accident reconstruction expert would testify to the same conclusions outlined in his report, the only conceivable purpose in introducing his testimony would be to contradict the testimony offered by Trooper Sandor and Mr. Ankney regarding the placement of appellant’s vehicle prior to the accident and the source of the tire that caused the skid marks and tire tracks. Because the evidence would be offered solely for purposes of impeachment by contradiction, the third element has not been met.

Appellant’s final claim relates to the trial court’s refusal to grant his request for a stay or supersedeas of the suspension of his operator’s license. The crux of appellant’s argument is that he should be able to retain his operating privileges during the pendency of an appeal from the criminal conviction which gave rise to the suspension. Appellant again does not refer us to any authority which would support his position. While we empathize with the hardship caused by the loss of his driving privileges, appellant is not entitled to relief.

We begin with a review of the relevant provisions of the Vehicle Code and the authorities relating thereto. In this case, appellant was convicted of driving while under the influence of alcohol to a degree which rendered him incapable of driving safely. Appellant was therefore subject to a mandatory suspension of his operating privileges for a period of twelve (12) months. 75 Pa.C.S.A. § 1532(b)(3). Upon conviction for this offense, appellant was required to surrender his license to the trial court and his suspension would become effective as of the date of surrender. 75 Pa.C.S.A. § 1540(a) and § 1541(a). Where an individual’s operating privileges have been suspended by the Department of Transportation, he or she may appeal the suspension to the appropriate court. 75 Pa.C.S.A. § 1550(a). In hearing the appeal, the trial court only has the discretion to determine whether the aggrieved party is in fact the person whose operating privilege is subject to suspension and whether the suspension was properly imposed by the department. 75 Pa.C.S.A. § 1550(c). See also Commonwealth, Department of Transportation v. Johnson, 144 Pa.Commw. 599, 660, 601 A.2d 1339, 1340 (1992) and Commonwealth, Department of Transportation v. Russo, 96 Pa.Commw. 187, 189, 506 A.2d 1349, 1350 (1986) (discussing the limited inquiry in a suspension hearing). However, the trial court’s discretion is more restricted in cases involving a mandatory suspension because the suspension must be upheld once the trial court finds that the individual was convicted of the crime which led to the suspension. Commonwealth, Dept. of Transp. v. Russo, supra. In making this limited determination, the trial court may not inquire into the merits of the underlying criminal conviction. Commonwealth v. Bursick, 526 Pa. 6, 12, 584 A.2d 291, 294 (1990); Commonwealth, Dept. of Transp. v. Johnson, supra. Rather, the trial court can only ascertain whether there was a conviction and whether the department acted in accordance with the applicable law by imposing the suspension. Commonwealth, Department of Transp. v. Johnson, supra.

Application of these provisions and considerations compels us to conclude that appellant’s attempt to utilize the appeal procedure set forth in 75 Pa.C.S.A. § 1550 was premature and that an appeal of the suspension would not have resulted in the grant of relief. Following the close of his sentencing hearing, appellant was directed to surrender his operator’s license to the court clerk. Sentencing Hearing Transcript, 3/14/91 at 6-7. Appellant's suspension thus became effective on that date. 75 Pa.C.S.A. § 1540(a) and § 1541(a). Although appellant’s suspension became effective, the Department of Transportation had not received notice of appellant’s conviction, and therefore, could not have formally suspended appellant’s operating privileges or notified appellant of this event. Thus, an appeal from the suspension to the trial court would have been interlocutory because there was no official action by the Department of Transportation which could properly have been the subject of an appeal at this time. The trial court therefore did not err in disallowing appellant’s appeal from the surrender of his license.

Even if it is assumed that an appeal would have been appropriate at this stage of the proceedings, appellant would not have been able to retain his driving privileges. As indicated above, the trial court’s scope of inquiry is extremely narrow in mandatory license suspension cases where the suspension results from a criminal conviction. See Commonwealth, Dept. of Transp. v. Johnson, supra; Commonwealth, Dept. of Transp. v. Russo, supra; 75 Pa.C.S.A. § 1550(c). Because there is no question that appellant was convicted of a vehicular offense which required the mandatory suspension of his license, an appeal from the suspension would not have resulted in the restoration of appellant’s operating privileges. Further, an appeal of the license suspension would not have entitled appellant to a supersedeas or stay of the suspension during the pendency of an appeal to the appellate courts. See 75 Pa.C.S.A. § 1541(a) (permitting the department to grant a six (6) month delay in the commencement of the suspension upon the request of the aggrieved party) and § 1550(b) (which only provides for a limited supersedeas of a suspension by the department until the trial court makes a final determination). See also In re: Appeal of Revocation of Operating Privileges of Patchel, 133 Pa.Commw. 270, 272, 575 A.2d 966, 967 (1990) (discussing the limited supersedeas authorized by § 1550).

Although appellant acknowledges the procedure outlined in the Vehicle Code, he contends that an individual who must surrender his license and wait until notification of the suspension by the department is unfairly penalized by suffering the loss of operating privileges which could theoretically be restored after an appeal. Appellant’s argument lacks merit. In enacting the Vehicle Code, the legislature has determinéd that those individuals convicted of driving while under the influence of alcohol must forfeit their driving privileges for a specific period of time. Neither the trial court, the Department of Transportation nor the appellate courts have the power to alter or delay the imposition of this penalty beyond the periods prescribed by the legislature. See 75 Pa.C.S.A. § 1541(a); In re: Appeal of Revocation of Operating Privileges of Patchel, supra; Commonwealth, Dept, of Transp. v. Russo, supra. Appellant’s driving privileges were suspended upon the date of his conviction. See 75 Pa.C.S.A. § 1540(a) and § 1541(a). Appellant therefore no longer possessed these privileges and it is specious to suggest that an appeal under § 1550 of the Vehicle Code would have resulted in the restoration of his operator’s license.

Appellant additionally asserts that even if he could not immediately appeal the surrender of his driver’s license, he was nevertheless entitled to a supersedeas of the suspension during the pendency of an appeal of his underlying criminal conviction to this court. We disagree. The Vehicle Code provides:

Upon conviction by a court of competent jurisdiction for any offense which calls for mandatory suspension in accordance with section 1532 (relating to revocation or suspension of operating privilege), the court or the district attorney shall require the surrender of any driver’s license then held by the defendant and shall forward the driver’s license together with a record of the conviction to the department. The suspension or revocation shall be effective upon a date determined by the court or district attorney or upon the date of surrender of the license to the court or district attorney, whichever shall first occur.

75 Pa.C.S.A. § 1540(a). Although this provision vests the trial court or district attorney with discretion to determine the effective date of the suspension, this discretion is limited. The statute directs that the suspension shall be effective upon the date of surrender of the license to the court or upon the date set by the court or district attorney, whichever occurs first. 75 Pa.C.S.A. § 1540(a) and § 1541(a). As a result, neither the trial court nor the district attorney has the authority to extend the effective date of the suspension beyond the date of conviction, i.e., the date on which sentence is imposed. 75 Pa.C.S.A. § 1540(a) and § 1541(a), supra. See also Commonwealth, Dept. of Transp. v. Russo, supra (providing that the imposition of sentence constitutes a conviction for purposes of determining whether the suspension of an operator’s license was proper). A grant of a supersedeas or stay of the suspension by the trial court would, in effect, extend the effective date of the suspension beyond the date of conviction and is thus impermissible.

Moreover, we previously recognized that the legislature has provided for a limited supersedeas or delay in the commencement of a license suspension. See 75 Pa.C.S.A. § 1550(b) (providing for a supersedeas while an appeal from the department is pending in the trial court) and § 1541(a) (which permits the department, upon request by the affected individual, to grant a six month delay in the commencement of the suspension in cases of hardship). The legislature was thus aware of the hardship associated with the loss of driving privileges and ameliorated it to a limited extent. Had the legislature intended to grant additional relief to affected drivers, it would have drafted the statutes accordingly. As the legislature did not do so, we are constrained to apply the statutes as written. Because there is nothing in the record which would indicate that appellant requested the department to grant a six month delay in the commencement of the suspension, and because appellant was not entitled to any other supersedeas or stay of the suspension during the pendency of this appeal, the trial court did not err in refusing to grant appellant’s request.

In sum, we have thoroughly reviewed all of appellant’s allegations of error in light of the certified record. Because none of appellant’s claims warrant the grant of appellate relief, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 3731(a)(1).

      . Appellant testified that he drank three twelve-ounce bottles of beer at the restaurant. N.T. 8/31/89 at 53. However, a defense medical expert indicated that appellant would have had to consume approximately four or five twelve-ounce beers in order to attain the blood-alcohol level which he possessed. Id. at 251 and 257-258.

      . Appellant’s truck was primarily dented on the driver’s side. Mr. Ankney’s tractor, however, had been severed from the trailer and was utterly demolished. See Defendant’s Exhibits 4-1 to 4-3 (photographs of appellant’s truck); Commonwealth’s Exhibits A to D (photographs of tractor-trailer). Appellant was rendered unconscious by the collision and sustained a severe concussion, a dislocated shoulder and minor lacerations. N.T. 8/31/89 at 62. Mr. Ankney’s injuries were not described in the certified record.

      . This test result was obtained for medical purposes and apparently only blood serum, i.e., blood from which the red blood cells have been removed, was analyzed rather than whole blood. N.T. 8/30/89 at 251-252. Because a test performed on blood serum will yield a higher reading than one conducted on a sample of whole blood, this reading was adjusted to arrive at a more accurate whole blood equivalent of .114%. Id. at 252.

      . Because appellant expressed his intent to appeal, he was permitted to remain free on bond during the pendency of the appellate proceedings. Consequently, appellant has not served any portion of his sentence.

      . Even were we to examine appellant’s challenge to the weight of the evidence, it does not appear that appellant would be entitled to a new trial on this basis. A new trial may only be ordered on the ground that the verdict is against the weight of the evidence when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice, and the award of a new trial is imperative so that right may be given another opportunity to prevail. Commonwealth v. Murray, 408 Pa.Super. 435, 438, 597 A.2d 111, 113 (1991) (en banc), allocatur denied, 529 Pa. 668, 605 A.2d 333 (1992). See also Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984) (for similar considerations). The evidence contained in the certified record revealed that appellant admittedly ingested alcohol prior to the accident. N.T. 8/31/89 at 46 and 53. Although appellant presented testimony that he did not exhibit extreme signs of intoxication, appellant's own medical expert testified that alcohol consumption would have affected appellant’s mental and physical functioning to some degree. Id. at 251-252. Appellant’s collision with the tractor-trailer further indicates that appellant’s faculties were impaired by his consumption of alcohol. While appellant attempted to demonstrate that the accident occurred because of a blown-out tire or alleged misconduct by Mr. Ankney, the jury did not accept appellant’s theory of the accident. The fact that the jury rejected appellant’s version of the incident does not render the verdict so shocking or contradictory as to mandate the award of a new trial.

      . Aside from the single assertion that Mr. Ankney’s alleged passing violation may have caused the accident, appellant does not further develop this issue. Presumably, appellant wishes us to infer that if Mr. Ankney had remained in the eastbound lane and if the accident was due solely to an explosion of the tire, then the collision might not have occurred. Appellant’s speculation as to what might have happened if Mr. Ankney had not attempted to pass, even if accepted, is only relevant insofar as it may affect Mr. Ankneys ability to recover in the event that civil proceedings are instituted against appellant. However, appellant’s theory of "what ifs” does not offer any insight as to the manner in which Mr. Ankneys actions induced appellant’s vehicle to enter the westbound lane and strike Mr. Ankneys vehicle. Appellant likewise does not describe how Mr. Ankneys alleged misconduct is related to appellant’s own criminal conduct. To the extent that Mr. Ankneys actions may have been relevant, it was a matter for the jury to consider in assessing appellant’s ability to drive safely in light of his admittedly intoxicated condition.

      . Assuming the dissipation rate was .013%, appellant’s blood-alcohol level at the time of the accident is mathematically calculated to be .127%. If the greater dissipation rate of .015% is utilized, appellant’s blood-alcohol level at the time of driving would commensurately increase to .129%.

      . Appellant’s arguments might have been more persuasive if appellant had been convicted of violating 75 Pa.C.S.A. § 3731(a)(4). In view of appellant’s acquittal on this charge, the sufficiency of the evidence to establish this offense and/or appellant’s entitlement to a new trial therefor is moot. See Commonwealth v. Dorler, 403 Pa.Super. 150, 152-153, 588 A.2d 525, 526 (1991) (defining mootness and providing that the appellate courts will not decide moot or abstract questions). While we will not deem an issue to be moot where it is capable of repetition yet will evade review, such is not the case here. See id. We presume that the Commonwealth is aware of the Supreme Court's recent decisions in Commonwealth v. Jarman and Commonwealth v. Modaffare and that it will conform its prosecution of future drunk driving cases accordingly. Thus, the contentions raised by appellant relating to the Commonwealth’s proof of the § 3731(a)(4) offense, and the trial court’s denial of his motions for demurrer and judgment of acquittal as to this offense are all moot.

      . This report has been included as part of the certified record.

      . Appellant has satisfied the second requirement because the report is not merely cumulative or corroborative of existing evidence to the extent that no other evidence was introduced to support appellant’s theory that the skid marks were in fact caused by a deflated tire which had exploded prior to impact. Compare Commonwealth v. McCracken, 373 Pa.Super. 90, 100-101, 540 A.2d 537, 542 (1988) (finding after-discovered evidence to be cumulative of the defendant’s defense theory where extensive evidence on this theory had been presented at trial). The fourth prong is arguably satisfied since the expert’s opinion would considerably strengthen appellant’s defense theory, although this evidence, in and of itself, does not prove or disprove that appellant committed the offense for which he was convicted.

      . These photographs were taken by Mr. Ankney’s son the day after the accident. N.T. 8/31/89 at 299; N.T. 9/1/89 at 55. The Commonwealth indicated that it was unaware of the existence of the photographs until the second day of trial. Id. at 297-298.

      . We note that appellee has not responded to this argument in its brief.

      . This statute was amended by the Act of May 30, 1990, P.L. 173, No. 42, § 3 and the Act of July 10, 1990, P.L. 356, No. 83, § 6. The amendments do not affect our analysis of the supersedeas issue.


source: Caselaw Access Project

author: CERCONE, Judge.

license: Public Domain

text:
    611 A.2d 1232
    Ronald W. SEVIN and Joyce M. Sevin, his Wife, Appellants, v. Terence KELSHAW and Hazel Kelshaw, his Wife, Municipal Authority of the Borough of Edgeworth, Howard Hanna Company Realtors, Howard Hanna Financial, Howard Hanna Real Estate Service, Merrill Lynch Realty and Prudential Preferred Realty.
    Superior Court of Pennsylvania.
    Argued April 22, 1992.
    Filed June 23, 1992.

      Timothy E. Finnerty, Pittsburgh, for appellant.
    John H. Morgan, Pittsburgh, for Kelshaw, appellee.
    Anthony G. Sanchez, Pittsburgh, for Howard Hanna, appellee.
    Before KELLY, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the order of the Court of Common Pleas of Allegheny County dated August 13, 1991, which granted preliminary objections in the nature of a demurrer in favor of appellees and dismissed appellants’ complaint. We affirm.

The pertinent facts as alleged in the complaint are as follows: appellants, Ronald and Joyce Sevin, purchased real property in Sewickley, Pennsylvania from appellees, Terence and Hazel Kelshaw on September 2, 1989. Appellees Merrill Lynch Realty and Prudential Preferred Realty were the listing brokers for the property. Appellee Howard Hanna Real Estate Service was the selling broker for the Kelshaws. Appellants allege that prior to the transfer of property, the Kelshaws entered into an agreement with the Municipal Authority of the Borough of Edgeworth to establish an easement over the Kelshaw property for purposes of extending the municipal water line through the subject property. This easement was never recorded. Appellants further contend that when they made the decision to purchase the property, none of the appellees informed them of the easement, which contained pipes below the surface and a blow-off valve onto the property where appellants contend they wished to build an addition.

Appellants filed their complaint on April 25, 1991. The complaint included one count each of fraudulent and negligent misrepresentation against each party. Each of the appellees filed preliminary objections to the complaint, which the trial judge granted without prejudice on July 3, 1991. Appellants filed an amended complaint on July 22, 1991 which modified, in pertinent part, two paragraphs from the original complaint and added one count of breach of contract against the sellers. Preliminary objections were again filed. The trial judge granted preliminary objections on August 14, 1991 and dismissed the complaint with prejudice. This timely appeal followed.

As a preliminary matter, appellees, Howard Hanna, Prudential Preferred Realty and Merrill Lynch Realty contend that this appeal should be quashed on the grounds that appellants’ brief and reproduced record violate a variety of Rules of Appellate Procedure. Although we agree with appellees that the quality of appellants’ brief is disgraceful and should not be condoned by this court, we find that our review of the issues raised has not been substantially hampered by the defects. Our review of the issues presented in this case simply requires us to analyze the complaint. If our review were more extensive and caused us to filter through voluminous records, we would be more inclined to quash the appeal. Presently, however, we will review the merits of the appeal.

Appellants contend that the trial judge erred in granting preliminary objections as their complaint sufficiently stated causes of action against the appellees. The Honorable R. Stanton Wettick, Jr. of the Court of Common Pleas of Allegheny County held that by law appellants could not be damaged by an unrecorded easement of which they had no notice. He found that under 21 P.S. § 351, unrecorded interests in land are invalid as to subsequent bona fide purchasers. He further held that any damages caused by relocation of the water line were unsupportable because appellants never alleged that they attempted to ascertain the location of this material information. While we agree with Judge Wettick’s conclusions of law, we are compelled to elaborate on the pertinent law regarding actionable misrepresentations.

Our standard of review in an appeal from an order sustaining preliminary objections in the nature of a demurrer is the same as that which the trial court employs: all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are admitted as true for purposes of review. Eckell v. Wilson, 409 Pa.Super. 132, 135, 597 A.2d 696, 698 (1991). However, we cannot accept as true conclusions of law. Id. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Id. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim on which relief may be granted. Id. A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory. Id.

Pennsylvania is a fact-pleading jurisdiction. Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa.Super. 293, 298, 464 A.2d 1349, 1352 (1983); Pa.R.Civ.P. Rule 1019, 42 Pa.C.S.A. A complaint must therefore not only give the defendant notice of what the plaintiffs’ claim is and the grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential to support the claim. Alpha Tau Omega, supra. Allegations of fraud require pleading with particularity. Pa.R.Civ.P. Rule 1019(b), 42 Pa.C.S.A. As our Supreme Court has stated:

While it is impossible to establish precise standards as to the degree of particularity required in a given situation, two conditions must always be met. The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense and they must be sufficient to convince the court that the averments are not merely subterfuge.

Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 380, 224 A.2d 174, 179 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967).

With our standard of review in mind, we now look at the specifics of appellants’ complaint. Appellants have averred that they entered into an agreement to purchase property from appellees, the Kelshaws, located in the Borough of Sewickley, Pennsylvania. Appellee Howard Hanna was the Kelshaws’ selling agent and appellees Merrill Lynch Realty and Prudential Preferred Realty were the listing agent for the Kelshaws. Complaint, paragraph 9. They further allege that prior to the purchase, the Kelshaws entered into, but failed to record, an agreement with the Municipal Authority of the Borough of Edgeworth which created an easement over the property for the extension of the municipal water line through the property. Complaint, paragraph 10. Appellants contend that the easement was under an area on which the appellants wished to build an addition to their home. They further allege that the fraudulent and/or negligent failure of the appellees to make known the existence of the unrecorded easement caused appellants to purchase the property at a higher price than they otherwise would have paid. They contend that they suffered further financial loss by having to move the water line to another part of the property. Amended complaint, paragraph 11. Paragraph 12 of the amended complaint reiterates the same contentions as in paragraph eleven and adds that Howard Hanna, as the selling broker, was required to investigate and disclose to appellants the existence of any relevant encumbrances on the property.

Appellants contend that all the appellees fraudulently or negligently failed to record the easement and fraudulently or negligently failed to apprise them of the existence of the easement. Lastly, appellants allege a cause of action against the Kelshaws for breach of contract. They aver that the agreement warranted that any encumbrances for utility lines would not adversely affect the use of the property for residential purposes. Amended Complaint, paragraph 39. We will consider each of the three claims on appeal separately.

Fraud must be averred with particularity by the following elements: 1) a misrepresentation; 2) a fraudulent utterance of it; 3) the maker’s intent that the recipient be induced thereby to act; 4) the recipient’s justifiable reliance on the misrepresentation; and 5) damage to the recipient proximately caused. Lokay v. Lehigh Valley Co-op. Farmers, Inc., 342 Pa.Super. 89, 96, 492 A.2d 405, 408 (1985) (citations omitted). We have also held that a vendor or his agent may be liable for failure to disclose material information, pursuant to the Restatement (Second) of Torts § 550 (1977). Roberts v. Estate of Barbagallo, 366 Pa.Super. 559, 568, 531 A.2d 1125, 1130 (1987). Section 550 states:

One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering.

Restatement (Second) of Torts § 550 (1977). Liability under section 550 is encompassed by the rule that fraud may arise from the making of a knowingly false representation of fact, from an intentional concealment of true facts which is calculated to deceive the other party, or from a nonprivileged failure to disclose facts to the other party. Roberts, supra. The concealment must be intentional and it must relate to material information. Id. Mere silence in the absence of a duty to speak, however, cannot suffice to prove fraudulent concealment. Smith v. Renaut, 387 Pa.Super. 299, 306, 564 A.2d 188, 192 (1989).

Appellants proffer two theories in support of their fraud claim — one, that the appellees failed to record the easement, and two, that the appellees failed to apprise them of the existence of the easement. As to the first contention, we agree with the trial court that any fraudulent failure to record the easement could not cause appellants damage. Section 351 of Title 21 of the Pennsylvania Statutes specifically declares all unrecorded easements null and void as to subsequent bona fide purchasers. 21 P.S. § 351. The complaint avers that appellants took possession of the property without notice of the encumbrance. Therefore, as subsequent bona fide púrchasers, appellants were not bound by any of the terms of the unrecorded easement and were free to alter their property.

More to the point, however, is appellants’ second theory of recovery that appellees fraudulently or negligently failed to disclose the existence and location of the easement. They allege damages emanating from their relocation of the water lines to accommodate their plans for an addition to the house. In order for appellants’ cause of action in fraud to be sustained, however, we must ascertain whether the information withheld from them was material to the transaction. A misrepresentation is material if it is of such character that had it not been made, or in the present case, had it been made, the transaction would not have been consummated. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 108, 464 A.2d 1243, 1252 (1983).

The question as to whether the existence and location of water lines pursuant to an easement can, of themselves, be actionable as material information has not been addressed by the courts of this Commonwealth. We must therefore consider those cases which have discussed the concept of “material information” in the context of real estate transactions. In Roberts, supra, Northwood Realty, the listing broker for a parcel of real property which contained a building with rental units, received information from the U.S. Consumer Products Safety Commission on the ban on future use of ureaformaldehyde foam insulation. The advisory directed the broker to disclose to both buyers and sellers the presence of the insulation as a potential health hazard. Despite the advisory, however, Northwood did not ascertain the type of insulation used in the property.

After closing, the purchaser learned that the residence contained formaldehyde based insulation. The purchaser sought to rescind the deed and subsequently filed suit against the seller and the real estate agent based on the seller’s failure to disclose the presence of the insulation. Roberts, 366 Pa.Super. at 564, 531 A.2d at 1128. The trial court denied the purchaser’s claim for rescission, but granted judgment for damages.

On appeal, a panel of this court discussed the duties a real estate broker acting as an agent for the seller owes to a purchaser. The panel held that any nondisclosure of information must be intentional and must relate to material information. In that case, we found that the realtor, with belief that the insulation ban was material information in the sale of property, had an intentional policy of nondisclosure. Id., 366 Pa.Superior Ct. at 569, 531 A.2d at 1132. Accordingly such concealment was found to be actionable as fraud.

In Quashnock v. Frost, 299 Pa.Super. 9, 445 A.2d 121 (1982), we held that a seller has an affirmative duty to disclose a termite infestation of which he has knowledge. Id., 299 Pa.Superior Ct. at 23, 445 A.2d at 125. We reasoned that such a condition was a serious, dangerous and latent defect. Id. In National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 381 A.2d 963 (1977), the sellers of a piece of property demolished a number of buildings on the property and buried the debris in the ground where they knew the purchasers wished to build a trucking terminal. The buyers alleged that this conduct was fraudulent and caused the purchasers to expend money to remove the debris. In that case, we reversed the trial court’s order sustaining preliminary objections to the appellant’s fraud count. We reasoned that active concealment of defects known to be material to the purchaser is legally equivalent to affirmative misrepresentation. Id., 252 Pa.Superior Ct. at 376, 381 A.2d at 966, citing Restatement (Second) of Torts § 550 (1977) (emphasis added).

Our line of cases provides meaningful insight to the disposition of the present matter. The location of the water lines on the property here was not a dangerous condition on the land which the sellers or their agents had a duty to disclose. Furthermore, appellants have not alleged that the water lines were defective, thereby causing physical damage to the property. We note that utility easements are a common and natural implication of property ownership in urban and suburban residential developments. Their existence is expected in all parcels of land where such services are supplied and are duly provided for in the sales contract governing this case. We therefore hold that the existence of these easements and their location were not material parts of this real estate transaction.

Our decision in Byler teaches us that a vendor or his agent may be responsible for concealing the existence of an imperfection in the property which is known to be material to the purchaser. Thus, despite the existence of various utility encumbrances, a purchaser of real property may deem their location material because of an intended use personal for the property. In such a case, it is incumbent on the purchaser to make known to the appropriate parties the use he or she intends. In the present case, however, appellants have not alleged in the complaint that they ever informed the appellees of their wish to build an addition on the site where the water easement prevents them from building. Without this missing fact, we are constrained to hold that appellants have not sufficiently alleged a cause of action for fraudulent misrepresentation. Despite appellants’ bald allegations of materiality, we have no basis in the certified record for finding that this information was necessary to appellants’ decision to purchase the property. We therefore find that the trial court was correct in granting preliminary objections to appellants’ fraud claim.

Appellants have also alleged a claim of negligent misrepresentation under the Restatement (Second) of Torts § 552. That section holds a person liable who, in the course of his business, profession or employment, supplies false information for the guidance of others in their business transactions, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Restatement (Second) of Torts § 552. In the case at hand, no information regarding the existence or location of the municipal authority’s easement was given. Nor does the complaint aver that such a request for information was ever made to any of the appellees. Appellants merely maintain that neither the vendors nor the brokers informed them of the easement when they were under a duty to do so. As we have already held that, absent a request for the information, no duty was imposed on the vendor and broker, we hold that appellants have not sufficiently averred facts to trigger application of section 552.

In their final argument, appellants contend that the trial court erred in granting preliminary objections on their breach of contract claim against the Kelshaws. The sales agreement states in pertinent part:

18. Under and Subject: Buyer shall take title to the property SUBJECT to the following: ... (c) water, sewer, gas, electric, cable television, and telephone lines or easements therefor of record or as presently installed, provided, however, that said lines or easements shall not adversely affect the use of the Property for residential purposes ...

See Exhibit A attached to the Complaint (emphasis added). Appellants contend that the existence of the easement adversely affects the use of property for residential purposes because they are not able to build additions to their home without the inconvenience of moving the water line.

It is well established that in the absence of technical terminology we give the words used in an agreement their plain and ordinary meaning. Warren v. Greenfield, 407 Pa.Super. 600, 607, 595 A.2d 1308, 1311 (1991). This issue raises the question of what is to be considered “residential purposes” as used in paragraph 18 of the contract. The Random House College Dictionary provides the following useful definitions:

residential. 1. of or pertaining to residence or residences. 2. adapted or used for residence.

“Residence” is further defined in pertinent part as:

residence. 1. the place, especially the house in which a person lives or resides; dwelling place; home.

Random House College Dictionary, 1123 (Rev.Ed.1980). Thus, the dictionary definitions of “residential” coupled with “purpose” imply an ability to live on the property. In the context of clause 18 in the sales agreement, we find that “residential purposes” means the ability to live on the subject property without impediments from the utility easements. We do not take appellants’ expansive view that the clause means that any loss of enjoyment of the property renders it unfit for residential purposes. Appellants have not alleged that they are unable to live at the subject property. Therefore, we find, under the circumstances of this case, that appellants have failed to sufficiently state a cause of action for breach of contract.

Order affirmed.

      . Appellants named the Municipal Authority of the Borough of Edge-worth as a defendant in the lower court action. The lower court entered an order on August 9, 1991 which granted leave to discontinue the action against the Municipal Authority with prejudice. As a result, the municipal authority is not a party to the present appeal.

      . Specifically, the brokers proffer the following violations: failing to include a proper statement of questions with the lower court’s disposition of the questions raised on review, Pa.R.A.P. Rule 2116, 42 Pa. C.S.A.; failure to state the location of facts in the record, id. Rule 2117; inclusion of a summary of argument which exceeds two pages, id. Rule 2118; failure to include citations to the record, id. Rule 2119(c); failure to number pages in the reproduced record, id. Rule 2173; failure to include a table of contents to the reproduced record, id. Rule 2174, and failure to separate the brief and the reproduced record, id. Rule 2171(b).

      . We note that appellants allege in their brief to this court that they apprised appellees of their desire to build a garage where the easement was located and were not informed of the existence of the easement there. It is quite clear, however, that an appellate brief may not be used to prove a fact missing from the certified record. Commonwealth v. Rini, 285 Pa.Super. 475, 481, 427 A.2d 1385, 1389-90 (1981). The complaint fails to allege that appellees knew of the materiality of the location of the easement. Appellants cannot now use the appellate brief to supply that vital allegation.

      . Although the complaint also avers that the sales agreement covenants that appellants were to take title in fee simple clear of all liens and encumbrances, appellants fail to include the following additional language in the agreement, “except as hereinafter set forth.” This language demonstrates that we must look at the entire contract to ascertain whether there has been breach.


author: DEL SOLE, Judge:

text:
    611 A.2d 1239
    GARDEN STATE STANDARDBRED SALES CO., INC., Appellant, v. Clarence (Herb) SEESE, Clarence I. Seese and Leah M. Seese, his Wife, as Tenants by Entireties, Appellees.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1992.
    Filed June 24, 1992.

      Nicholas D. Krawec, Pittsburgh, for appellant.
    Jay D. Marinstein, Pittsburgh, for appellees.
    Before DEL SOLE, TAMILIA and HESTER, JJ.
   DEL SOLE, Judge:

Appellant, Garden State Standardbred Sales Company, Inc., obtained an arbitration award against Appellee, Clarence Seese. Judgment was entered in the Superior Court of New Jersey and thereafter filed in Pennsylvania pursuant to the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S.A. § 4306. Subsequently, Appellant took the deposition of Clarence Seese in the offices of Appellant’s counsel, and garnishment proceedings were commenced by filing interrogatories on Clarence I. Seese and Leah M. Seese, his wife, as tenants by the entireties, and garnishees. Mr. and Mrs. Seese filed preliminary objections claiming that as tenants by the entireties they were immune from garnishment, and that under Rules 3144 and 3253, Pa.R.C.P., 42 Pa.C.S., Appellant’s interrogatories were improper. The Honorable Judith Friedman, Court of Common Pleas, Allegheny County, granted the Appellees’ preliminary objections, finding that a tenancy by the entireties can not be garnished, that garnishment proceedings were improperly used to invalidate the conveyance of individually owned property into an entireties account, and that an action in equity under Section 4 of the Fraudulent Conveyance Act was the proper procedure to follow to invalidate the allegedly fraudulent conveyance. This appeal followed.

First, Appellant claims that the Seeses were proper garnishees under Rule 3101(b), Pa.R.C.P., 42 Pa.C.S. which states:

Rule 3101. Definitions. Garnishee

(b) Any person may be a garnishee and shall be deemed to have possession of property of the defendant if he
(1) owes a debt to the defendant;
(2) has property of the defendant in his custody, possession or control;

However, the defendant, Clarence Seese, is one of the owners of the tenancy, and he cannot owe a debt to himself, nor can he be garnishee of his own property which he possesses and controls. Garnishment is a “proceeding through which a creditor collects his debt out of property of the debtor in the hands of a third party,” Triffin v. Interstate Printing Co., Inc., 357 Pa.Super. 240, 244 n. 4, 515 A.2d 956, 958 n. 4 (1986), and may be used to determine whether the garnishee owes a debt to the judgment debtor, or has property of the judgment debtor. Wheatcroft v. Smith, 239 Pa.Super. 27, 362 A.2d 416, 419 (1976). In the instant case, Mr. Seese holds an undivided interest in entire-ties property, and therefore in garnishing entireties property, Appellant attempts to garnish the defendant himself rather than garnishing a third party who possesses the property of the defendant.

Lastly, a tenancy by the entireties is not a person as defined by Rule 76, Pa.R.C.P., 42 Pa.C.S., and only persons may be garnishees according to Rule 3101. Persons are defined to include a corporation, partnership and association, as well as a natural person, and a tenancy by the entireties is none of these. Therefore, for all these reasons, the garnishment of Clarence Seese and his wife Leah Seese, as tenants by the entireties, was improper, and preliminary objections were correctly granted.

If Appellant is seeking to identify entireties property held by a third party, then the proper procedure is to take testimony pursuant to Rule 3117, Pa.R.C.P., 42 Pa.C.S., Discovery in Aid of Execution. This procedure may be used to subpoena the defendant or a garnishee in order to ascertain the assets of the defendant and their location. Then, in the case of a joint bank account held by the defendant as tenant in the entireties, the bank in which the account is located is the proper garnishee.

Next, Appellant argues, citing Patterson v. Hopkins, 247 Pa.Super. 163, 371 A.2d 1378 (1977), that a garnishment proceeding may be used to determine whether a fraudulent conveyance by the judgment debtor occurred, and that Interrogatories to Garnishee, Rule 3144, Pa.R.C.P., 42 Pa.C.S.A., may be used to ascertain whether Mr. Seese transferred property into an entireties account in fraud of his creditor.

In Patterson, the judgment creditor executed on property held by the debtor and his wife as tenants in the entireties. The debtor and his wife objected to the execution and levy, claiming the property was immune from execution because it was held by the entireties. A hearing was held to determine the true state of ownership of the entireties properties, and although there had been no garnishment of the checking accounts at the time of the hearing, the checking account was discussed and testimony was adduced concerning the origins of the funds in the checking account. The trial court held that the conveyances were fraudulent and the assets held as tenancies by the entireties were not immune to execution. In affirming in part and reversing in part, we held that the hearing held by the trial court, in which it was determined that certain conveyances into the checking accounts were fraudulent, was procedurally proper. However, where there was no evidence adduced at the hearing concerning the ownership of the savings account and the origin of the funds in that account, and the debtor did not realize that the savings account was subject to execution and therefore did not raise any defense to that execution, the trial court erred in including the savings account in its adjudication.

The trial court, relying on Corbett v. Hunter, 292 Pa.Super. 123, 436 A.2d 1036 (1981), held that Appellant must commence a separate, equitable action requesting that a court order the tenants by the entireties to reconvey the alleged fraudulent conveyances into the name of Clarence I. Seese alone, if Appellant wants to reach those assets in satisfaction of the debt. Once such action is taken it may be determined whether fraudulent conveyances took place. This was the procedure followed in Corbett, and we hold that because of our supreme court’s holding in Greater Valley Terminal Corporation v. Goodman, 415 Pa. 1, 202 A.2d 89 (1964), the procedure followed in Corbett is required.

Greater Valley concerned the question of whether an alleged fraudulent transfer of property may be set aside in supplementary proceedings in aid of execution, Rule 3118, Pa.R.C.P., 42 Pa.C.S. The court held that although each state which has adopted the Uniform Fraudulent Conveyance is free to devise its own enforcement procedures within constitutional limits, Schline v. Kine, 301 Pa. 586, 591, 152 A. 845, 846 (1930), these supplementary proceedings may not be used to adjudicate conflicting rights or claims made in good faith to property in the possession of third persons, because it deprives defendants in such actions of the protection afforded by the safeguards of a full hearing.

The Greater Valley court went on to hold that the issue of rights to property in the hands of third persons sought to be executed against is properly adjudicated in proceedings in which a defendant’s rights are fully protected. The procedures recommended were those in place at the time in the Sheriff’s Interpleader Act, in the trial courts sitting as a courts in equity, in garnishment proceedings in which there was a right to trial by jury or in an action in ejectment. In general, the Greater Valley court held that the defendant’s rights must be protected by a “full plenary proceeding and the attendant safeguards thereof,” Id., 301 Pa. at 7, 152 A. 845.

We are persuaded by the reasoning of Gulf Mortgage and Realty Investments v. Alten, 286 Pa.Super. 253, 428 A.2d 978 (1981) (Opinion per Hester, J., Spaeth, J. and Cavanaugh, J. concurring in the result), in which the Honorable John P. Hester stated that in a suit to set aside an alleged fraudulent conveyance, the burden of proof is on the moving party, and the ultimate issue, whether the transfer in question is fraudulent is an issue of fact for the jury. Judge Hester reasoned that if there is no pre-execution or pre-attachment judicial determination or finding that there had been a fraudulent conveyance, then the entirely ministerial attachment/gamishment procedure will serve to allow a creditor to attach the bank account of another person by the mere allegation of a fraudulent conveyance, without the creditor having to meet the requisite burden proof or persuasion before a jury.

Given this reasoning and the supreme court’s holding in Greater Valley, which was evidently designed to afford defendants clear procedural safeguards in claims in which a fraudulent conveyance is alleged, we must conclude that the trial court was correct in ruling that the use of the garnishment proceeding was improper. This proceeding, then, can not be used as a substitute for the institution of an equitable action in which the conflicting rights of the parties in the contested property may be adjudicated prior to the institution of execution proceedings and the service of the writ upon the garnishee which automatically results in the attachment of the property. Rule 3111(b), Pa.R.C.P., 42 Pa.C.S.

We are also constrained to agree with the trial court that in the instant case, because of precedent in our supreme court and in this court, a conveyance to an entireties account may be set aside by Section 4 of the Fraudulent Conveyance Act, 39 Pa.S. § 354. First National Bank of Marietta v. Hoffines, 429 Pa. 109, 239 A.2d 458 (1968); Stinner v. Stinner, 300 Pa.Super. 351, 446 A.2d 651 (1982); Patterson v. Hopkins, 247 Pa.Super. 163, 371 A.2d 1378 (1977); Corbett v. Hunter, 292 Pa.Super. 123, 436 A.2d 1036 (1981).

This section provides:

§ 354. Conveyances by insolvent
Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent, is fraudulent as to creditors, without regard to his actu al intent, if the conveyance is made or the obligation is incurred without a fair consideration, (emphasis added)

Under this section, if a creditor establishes that the grantor was in debt at the time of a conveyance, and the conveyance was made for inadequate or nominál consideration, then the conveyance is presumptively fraudulent as to the debtor’s creditors. The burden then shifts to the defendant to establish by clear and convincing evidence, either that the debtor was solvent at the time of the conveyance and was not rendered insolvent by the conveyance, or that the debtor received fair consideration for the conveyance. Speiser v. Schmidt, 387 Pa.Super. 30, 563 A.2d 927, 931 (1989); Stinner v. Stinner, supra, 300 Pa.Super. at 352, 446 A.2d at 652 (1982); First National Bank of Marietta v. Hoffines, supra, 429 Pa. at 115, 239 A.2d at 463 (1968). Where reliance is placed on this section of the Fraudulent Conveyance Act, proof of intent to defraud is not required. Hoffines, supra, 429 Pa. at 115, 239 A.2d at 463; Farmers Trust Co. of Lancaster v. Bevis, 331 Pa. 89, 91, 200 A. 54 (1938).

However, under § 7 of the Fraudulent Conveyance Act, 39 Pa.S. § 357, the plaintiff must adequately establish the fraudulent intent of the conveying debtor. Leopold v. Tuttle, 378 Pa.Super. 466, 549 A.2d 151 (1988). This section provides:

§ 357. Conveyance made with intent to defraud
Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors.

This section of the Act does not require that the debtor make himself insolvent or execution proof, only that the debtor convey with intent to hinder, delay or defraud creditors. “Since fraud is usually denied, it must be inferred from all facts and circumstances surrounding the conveyance, including subsequent conduct.” Godina v. Oswald, 206 Pa.Super. 51, 55, 211 A.2d 91 (1965).

It is well settled that Pennsylvania subscribes to the majority view which holds that entireties property is unavailable to satisfy the claims of the creditor of only one of the tenants. Patwardhan v. Brabant, 294 Pa.Super. 129, 132, 439 A.2d 784 (1982). However, when a spouse conveys individual property to a tenancy by the entireties in fraud of creditors, the creditor may nevertheless execute against the property so conveyed. Id., Stinner, supra, 300 Pa.Superior Ct. at 352, 446 A.2d at 652.

While we agree that any property conveyed into entireties property in fraud of creditors is not immune from execution, we invite the General Assembly to adopt the view that the presumption of a fraudulent conveyance which results from a conveyance when the debtor is insolvent or rendered insolvent (§ 354) should be inapplicable when the conveyance results in the creation of entireties property, and that in such cases the plaintiff should be required to prove fraudulent intent under section 357. We ask the General Assembly to do so because the application of section 4 of the Fraudulent Conveyance Act has resulted in holdings which are contrary to public policy and to the intent of the Fraudulent Conveyance Act, that is to invalidate conveyances made in fraud of creditors. For example, in Stinner, supra, it was held that the regular and routine deposit of a debtor/husband’s salary and bonuses into an account held by husband and wife as tenants by the entireties was a fraudulent conveyance, and proof that the funds in a joint checking account were deposits of debtor/husband’s salary meant that the deposits were in defraud of creditors because there was no fair consideration for the conveyance, and therefore, the checking account, held by the entireties, was available to satisfy the judgment against the debt- or/husband. Patterson v. Hopkins, 247 Pa.Super. 163, 168, 371 A.2d 1378 (1977).

As Judge McEwen noted, in Stinner, supra, 300 Pa.Superior Ct. at 358, 446 A.2d at 655 (McEwen, J., concurring), he was compelled to concur in the result because of the precedent set in Patterson, supra, however he stated, “These facts do not portray a conveyance in fraud of creditors. In fact, it would be difficult to invent a more compelling factual basis for a decision that this entireties account should be unavailable to any creditor of either tenant.” As we stated in Corbett v. Hunter, supra, 292 Pa.Super. at 127, 436 A.2d 1036, “What the [c]ourt is dealing with in a fraudulent conveyance contest is the reality of the situation,” and the reality is that the factors of a insolvency and indebtedness at the time of a conveyance without consideration, “are considered as showing actual intent to defraud.” Godina v. Oswald, 206 Pa.Super. at 56, 211 A.2d 91.

When a conveyance occurs, satisfying the statutory requirements of § 4, but otherwise showing that there was no intent to defraud one of the tenant’s creditors, then property held in the entireties should not be available for execution to creditors of one of the tenants. Otherwise, every indebted spouse who is part of a household, who is the sole income-earner, and who regularly and routinely deposits income into a joint account used to pay household expenses is potentially making a fraudulent conveyance. If we also hold that such deposits lack fair consideration, as we did in Stinner, supra, 300 Pa.Superior Ct. 351, 446 A.2d at 651, n. 1., and Patterson, supra, then, contrary to public policy, we depreciate the role and value of the services rendered by a homemaker whose support may make it possible for the wage-earning spouse to contribute funds to the entireties property. Estep v. Estep, 353 Pa.Super. 227, 509 A.2d 419, 422 (1986); Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151, 153 (1987). “Our courts must provide careful scrutiny of the facts and employ extreme care when permitting entireties property to be available for execution to creditors of one of the tenants.” Stinner, supra, 300 Pa.Superior Ct. at 358, 446 A.2d at 655, (McEwen, J. concurring).

In furtherance of that goal of extreme care, we believe that when a conveyance is challenged, evidence should be adduced showing that the conveyance was made in fraud of creditors, and that there was an intent to defraud as required under Section 357 of the Fraudulence Conveyance Act. As stated above, a conveyance which converts property into an estate by the entireties may be invalidated if the plaintiff can adequately establish the fraudulent intent of the conveying debtor as well as the existence of a present or future creditor. Leopold v. Tuttle, supra, 378 Pa.Superior Ct. at 471, 549 A.2d at 154.

The change we propose today in this case need not cause concern for the future ability of creditors to invalidate conveyances which are fraudulent. Such instances will be marked by signs of fraudulent intent such as the timely conveyance of property long held in the debtor’s name only, First National Bank of Marietta v. Hoffines, supra, the conveyance of a considerable portion of the debtor’s estate, or of such substantial property as a home, shares of stock, or a partnership interest, (property which is not regularly and frequently transferred), Baker v. Geist, 457 Pa. 73, 321 A.2d 634 (1974); Godina v. Oswald, supra, the giving of incredible explanations for a conveniently timed transfer, Canter v. Canter, 238 Pa.Super. 347, 357 A.2d 659 (1976), or, the lack of proof or inability to trace the proceeds from the conveyance given as “fair” consideration for the conveyance. Godina v. Oswald, supra. Even evidence that the conveyance was made when the debtor was insolvent or rendered insolvent, or not made for fair consideration can be evidence of fraudulent intent, but such evidence alone should not render the conveyance per se or presumptively fraudulent, Taylor v. Kaufhold, 379 Pa. 191, 108 A.2d 713 (1955).

Therefore, we hold that an estate by the entireties is not a proper garnishee, and that a garnishment action may not be used to invalidate a fraudulent conveyance. Furthermore, because of prior authority, we are constrained to hold that an equitable action under section 4 of the Fraudulent Conveyance Act is proper, although the better course would be to require that the creditor seeking to invalidate a conveyance prove fraudulent intent when property is conveyed to an estate by the entireties as required by section 357. In sum we affirm the trial court’s order dismissing Appellant’s garnishment action.

Order affirmed.