text:
    476 A.2d 974
    Jeffrey M. GROSS and Sherry F. Gross, his wife v. JACKSON TOWNSHIP, a Municipal Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1984.
    Filed June 1, 1984.

      Kenneth J. Nolan, Pittsburgh, for appellant.
    Philip P.G. Lope, Zelienople, for appellees.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment entered in the Butler County Court of Common Pleas in favor of appellees, Jeffrey and Sherry Gross. We affirm.

Appellees brought an action in trespass against appellant, Jackson Township, to recover for damages to appellees’ shrubs and hedges sustained when appellant was working on a township road. The jury found in favor of appellees in the amount of $9,674 and the court added $1,571.97 for delay damages pursuant to 42 Pa.C.S.A. Rule 238.

Appellant raises two issues: (1) whether the trial court erred in refusing to strike certain expert testimony; and (2) whether the trial court properly instructed the jury concerning the measure of damages.

In 1979, appellant undertook a construction project to widen a township road adjacent to appellees’ property. In widening the road, appellant removed a length of approximately 360 feet of hedge and various shrubs and trees. Appellant claims this property lay within its right of way. Appellees contend the hedges, etc. were within their property line and based damages on the cost of restoration.

At trial, James Shuty, an experienced survey engineer, testified on behalf of appellees. Based upon his field survey and research, Mr. Shuty stated that the disturbed area was not within the township right of way. (N.T. 51)

The parties agree that appellant is entitled to 33 feet for the width of this road. The method for measuring the width of the road is, therefore, I6V2 feet on each side of the centerline. The centerline becomes the basis for measurement, and it has been defined as the “center line of the road as opened upon the ground”. Lenhart v. Wright, 286 Pa. 351, 357, 133 A. 495, 498 (1926).

Appellant contends Mr. Shuty’s testimony should not have been considered because his expert opinion was not based upon an actual measurement of the road’s center but upon calculations using property deeds.

We do not agree with appellant. Mr. Shuty did testify that he established the centerline by researching deeds and “anyone is entitled to their deed distance.” (N.T. 55) However, this expert also stated that his deed research supported his visual inspection and he found the lines to coincide. (N.T. 60) Mr. Shuty explained his reasoning in using the deeds was “[bjecause when the deed line and the existing centerline have a great deal of difference sometime, your concern is whether you worked up properly the property. In this case it fits, so they are one and the same.” (N.T. 61) Mr. Shuty did consider the center line, and we find this expert’s testimony to have been properly admitted into evidence.

Appellant also argues that the trial court should not have instructed the jury as to the cost of restoration, but, instead, the jury should have used, as the measure of damages, the difference between the property’s value before and after the destruction. It is true that this court has in the past held it proper to measure damages by calculating the resulting depreciation in the land. Norris v. Philadelphia, 49 Pa.Super. 641 (1912). The rationale for such a measure of damages was that the plant life “had a value which cannot he determined.” Id., 49 Pa.Superior Ct. at 646; See also, Bullock v. Baltimore and Ohio Railroad, 235 Pa. 417, 84 A. 421 (1912) (young trees destroyed by fire did not have value as timber and therefore property depreciation method applied).

The facts of this case support a dollar amount being attached to the hedges and shrubs. Appellee secured an estimate from a landscaping service as to the restoration costs and testified that he planned to replace the plant life. The jury’s award was the same figure as the proffered restoration estimate.

In Bell v. Shetrom we stated:

“We have grave doubts that damage to trees can be ascertained only by showing the before and after value of the land on which the trees were growing____ Whatever approach is most appropriate to compensate for the harm should be used, including perhaps the intrinsic value of the trees to the then existing use of the land or the cost of replacement or restoration. Even if the before and after value of the land is an appropriate measure of damages, evidence of the value of the trees themselves would be competent as indicative of the diminution in the value of the land.” 214 Pa.Super. 309, 312, 257 A.2d 323, 324 (1969).

The Restatement (Second) of Torts § 929 (1979) supports the use of the restoration costs as the measure of damages.

“§ 929. Harm to Land from Past Invasions
(1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for
(a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred.
(b) the loss of use of the land, and
(c) discomfort and annoyance to him as an occupant.
(2) If a thing attached to the land but severable from it is damaged, he may at his election recover the loss in value to the thing instead of the damage to the land as a whole.” (emphasis added)

Appellees made their residence on this property and the hedges and shrubs provided them with privacy and a natural fence for their pets. (N.T. 8) The destruction did harm appellees’ use as well as enjoyment of their property. Under these circumstances, the use of restoration costs as a measure of damages was certainly proper. See, generally, Annot., 95 A.L.R.3d 508, §§ 4, 5 (1979), and cases cited therein.

Judgment affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    476 A.2d 977
    COMMONWEALTH of Pennsylvania v. Gerald L. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 28, 1983.
    Filed June 1, 1984.

      Robert A. Longo, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   PER CURIAM:

Gerald L. Smith, appellant herein, was convicted at a jury trial of theft by unlawful taking of property valued at more than $200.00 but less than $2,000.00. The jury verdict was rendered December 17, 1981 in a trial before the Honorable D. Richard Eckman with Robert D. Bacher, Esquire, Assistant Public Defender representing Gerald L. Smith. On March 17, 1982, Judge Eckman sentenced Smith to a term of imprisonment for not less than two and one-half (272) nor more than five (5) years. At sentencing Smith again was represented by Mr. Bacher. No appeal was taken.

Thereafter, Smith filed a petition under the Post Conviction Hearing Act in which he alleged his indigency and requested that counsel be appointed for him. In response thereto Judge Eckman appointed Robert A. Longo, Esquire. The Commonwealth filed an answer to the petition and by order of July 2, 1982 Judge Eckman declared the petition to be “patently frivolous” and dismissed the petition without a hearing.

We reverse and remand. Jurisdiction is relinquished.

In his brief for appellant filed with this court, Robert A. Longo, Esquire asserts that he did not file an amended PCHA petition nor a supporting brief in the lower court for the reason that no trial transcript nor sentencing transcript was available to him in the court below. Mr. Longo notes, and we agree, that “It would have been extremely difficult for counsel to file an amended P.C.H.A. or to have the opportunity to explore all of the facts and legal basis for appellant’s complaints, without the record to substantiate his arguments.” Brief for Appellant, argument section.

In Commonwealth v. Box, 305 Pa.Super. 81, 451 A.2d 252 (1982), we said:

The right to an evidentiary hearing on a PCHA petition is not absolute. Commonwealth v. Cimaszewski, 234 Pa.Super. 299, 339 A.2d 95 (1975). A hearing may be denied if petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence. 19 P.S. § 1180-9. A PCHA petition may not be summarily dismissed, however, as “patently frivolous” when the facts alleged in the petition, if proven, would entitle petitioner to relief. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978).

Id., 305 Pa.Superior Ct. at 84, 451 A.2d at 253.

In his pro se post conviction hearing act petition, appellant alleged various grounds including:

1. There was insufficient evidence to arrest him.
2. Ineffectiveness of counsel in failing to file motions and in failing to take adequate time to prepare defendant’s case.
3. An allegation that defendant’s trial lawyer advised him that if he would drop his appeal he would get “time served.”

We have concluded that by the standards set forth in Sherard, supra, appellant’s claims are not “patently frivolous.” Therefore, we will remand for an evidentiary hearing on appellant’s petition and since the trial record and sentencing record are now available we will further direct that appellate counsel file an amended PCHA petition on behalf of petitioner and further direct that the hearing be conducted as to the allegations to be set forth in the amended PCHA petition.

Case remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . 42 Pa.C.S.A., §§ 9541-9551, Act of May 13, 1982, P.L. 417, No. 122, § 2.


text:
    476 A.2d 978
    COMMONWEALTH of Pennsylvania v. Dwayne Keith HICKS a/k/a Dwayne Hicks, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 27, 1984.
    Filed June 1, 1984.

      Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   PER CURIAM:

Appellant Dwayne Hicks was found guilty in a jury trial on June 29, 1981 of first degree murder, robbery, and criminal conspiracy and, on March 16, 1982 was sentenced to life imprisonment on the murder charge, plus ten to twenty years for the robbery conviction and five to ten years for the criminal conspiracy conviction, consecutive to the life term.

The facts of this case are accurately summarized as follows:

On October 24, 1980, Mr. Dwayne Hicks instructed Miss Tracy Saunders, a prostitute, to go downtown to get a ‘trick’ who looked like he had money and had a nice car. Ms. Saunders was to bring this ‘trick’ back to the apartment that she shared with Mr. Hicks. While Miss Saunders was bathing, in preparation for the evening, Miss Berger, another woman who lived with Mr. Hicks and Miss Saunders, entered the bathroom and told Miss Saunders that Mr. Hicks was going to kill the guy that Miss Saunders was going to lure to the apartment. Miss Saunders and Mr. Hicks then took a cab to town. Miss . Saunders was dropped off and Mr. Hicks proceeded to a store where he purchased handcuffs and a cap gun. Miss Saunders met Mr. Robert Karcz, the victim, and brought him back to the apartment. Miss Saunders and Mr. Karcz undressed. Miss Saunders proceeded to give Mr. Karcz the services he paid for. Mr. Hicks came into the room and told Miss Saunders to leave. Mr. Hicks held the gun on Mr. Karcz and handcuffed Mr. Karcz’s hands behind his back. Mr. Hicks then wrapped a rubber hose around the victim’s neck and tightened it for several minutes. When Mr. Hicks let go the victim was not breathing. Mr. Hicks wrapped Mr. Karcz in a sheet bound with belts, put him the car and drove him to Schenley Park where he left the body. The next morning Mr. Hicks went to Allegheny Center Mall and made a series of purchases, including a radio, some watches, and a portable T.Y. with Mr. Karcz’s credit cards. Later that dajr Mr. Hicks went to downtown Pittsburgh and Monroe-ville Mall and made several other purchases with Mr. Karcz’s credit cards. Saturday evening Mr. Hicks drove to Erie, Pennsylvania with Miss Saunders and spent the night. They returned Sunday. After hearing on the radio, on Monday, that the body was found Mr. Hicks rented a U-Haul trailer with Mr. Karcz’s identification. After loading the U-Haul with their belongings, Mr. Hicks, Miss Berger and Miss Saunders drove to Atlanta, Georgia. Mr. Hicks was arrested in Atlanta and brought back to Pittsburgh where he gave a statement to the police concerning the events of the crime and admitting his involvement in the murder and the use of Mr. Karcz’s automobile and credit cards.

Brief for Appellee at 6-7.

In this direct appeal from judgment of sentence, appellant raises the following issues:

I. Did the trial court commit reversible error and abuse its discretion by striking over sixty (60) of the defense counsel’s seventy (70) voir dire questions?
II. Did the trial judge commit reversible error in not allowing defense counsel to go into an evidentiary hearing as proscribed in Commonwealth v. Futch in that the district attorney systematically excluded all black veniremen with his premptory [sic] challenges?
III. Should the jury have been sequestered because the case was highly publicized in the newspapers, on the radio, and on the television?
IV. Did the trial court err by not recusing himself when requested to do so by defense counsel?
V. Did the trial judge commit judicial misconduct by his intrusive conduct throughout the entirety of the proceedings?
VI. Did the trial court err in not granting a mistrial, or at least giving the jury limiting instructions, because of a violation of Commonwealth v. Wright, 456 Pa. 511, 321 A.2d 625 (1974)?
VII. Did the trial judge commit reversible error by allowing the assistant district attorney to ask a series of irrelevant and highly inflammatory questions which had no probative value and which clearly constituted prosecu-torial misconduct?
VIII. Was there no justification for the trial court’s failure to file a substantive opinion in this case?

Brief for Appellant at 3.

This case has been submitted to the Superior Court of Pennsylvania for decision and, accordingly, we will not have the benefit of oral argument. Of more concern however is the fact that we do not have any opinion from the trial court, the Honorable Samuel Strauss. We do not have, therefore, the benefit of Judge Strauss’s discussion of the issues presented in the post trial motions. We will accordingly, and do hereby remand this case to the trial court with directions that an opinion be promptly prepared and returned to us pursuant to the provisions of Rule 1925, Pennsylvania Rules of Appellate Procedure. Jurisdiction is not relinquished.

      . We are of course aware, from the record, that Judge Strauss had issued an order to the Office of the Public Defender of Allegheny County to file a brief and a concise statement of the matters complained of on appeal, by Order of April 20, 1982. Judge Strauss had directed that such response be made by April 27, 1982 and, in fact, it was May 10, 1982 when the concise statement was filed. Be that as it may, we are handicapped in reviewing the record in this case by not having the benefit of Judge Strauss’s thinking and analysis on the various issues presented for our consideration.


author: MONTEMURO, Judge:

text:
    476 A.2d 980
    COMMONWEALTH of Pennsylvania, Appellant, v. David Lee MOSER.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1984.
    Filed June 8, 1984.

      Roy A. Keefer, Assistant District Attorney, Gettysburg, for Commonwealth, appellant.
    John D. Kuhn, Public Defender, Gettysburg, for appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

The Commonwealth takes this appeal from the order of the Court of Common Pleas of Adams County granting the appellee’s motion to quash the information. We conclude that the lower court erred in doing so.

The facts relevant to the present appeal are as follows: On January 29, 1982, Don Jeffries, a parole officer, was notified that one Gina Sheely had been cut with a knife by the appellee, David Lee Moser, a parolee under the supervision of Jeffries. Jeffries conducted an interview with Ms. Sheely on February 2, 1982. She told Jeffries that she had lived with the appellee until October, 1981, that appellee had “cut her clothes on several occasions during domestic quarrels, and that appellee was in possession of a long, black rifle and had gone hunting.” Jeffries was aware that the appellee possessed a knife in connection with his employment.

On February 4, 1982, Jeffries went to the appellee’s apartment. The appellee was not present, but Jeffries gained access into the apartment from the landlord. While at the apartment, Jeffries conducted a thorough search. He found a hunting knife with a six-inch blade and an overall length of ten-inches; a box of ammunition; and a hunting rifle in the bedroom closet. He then returned to the room and discovered, inside a bureau drawer, a sawed-off rifle. The rifle is the subject of the prosecution which engendered the present appeal. Additionally, two C02 pistols were discovered.

The appellee was arrested on February 15, 1982 and charged with possession of a prohibited offensive weapon i.e., the sawed-off rifle. Counsel for the appellee filed a pre-trial motion to suppress the sawed-off rifle, alleging an illegal search and seizure by Jeffries, and a pre-trial motion to quash the information; contending that, as a matter of law, the sawed-off rifle was not a prohibited offensive weapon.

After a hearing on July 7, 1982, the lower court made findings of fact. On August 11, 1982, the lower court issued an order denying the appellee’s motion to suppress, but granted the motion to quash the information. The lower court concluded that the sawed-off rifle was not a prohibited offensive weapon. The Commonwealth took a timely appeal from that order.

The Commonwealth contends that the lower court erred in quashing the information because it ruled that a sawed-off rifle was not a prohibited offensive weapon as a matter of law. We agree that the lower court erred; however, our conclusion has a somewhat different basis. A motion to quash may be used to raise defects apparent on the face of the information or other defects that prohibit prosecution. Commonwealth v. Meoli, 307 Pa.Super. 50, 452 A.2d 1032 (1982), and cases cited therein. See also, 2 Wharton’s Criminal Procedure § 348 (12th ed. Torchia 1975). “A motion to quash an information is neither a guilt determining procedure nor a pre-trial means for determining the sufficiency of the Commonwealth’s evidence, [citations omitted]. The inadequacy, incompetency, or even illegality of the Commonwealth’s evidence does not constitute grounds for quashing an information.” Commonwealth v. Meoli, supra, 307 Pa.Super. at 53, 452 A.2d at 1033.

The trial court’s quash of the information was improper because its rationale for doing so was more a judgment of the Commonwealth’s evidence than a determination of the validity of the information. In the Pa.R.A.P. 1925(a) Opinion filed by the court, the trial judge asserts his disagreement with the ballistics expert proferred by the Commonwealth based upon “his own experience with firearms.” While we express no opinion as to the validity of his conclusion, we do find that it does not serve as a basis for quashing an information which is free from any defect on its face. Consequently, we hold that the lower court abused its discretion in quashing the information. Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980).

We note finally that the appellee raises an additional issue claiming that in the August 11, 1982 order, the trial court erred in denying the motion to suppress the sawed-off rifle as the fruit of an illegal search.

This issue is not properly before us inasmuch as appellee Moser did not file a cross-appeal. Consequently, we are without jurisdiction to entertain his contention. Commonwealth v. Barnes, 307 Pa.Super. 143, 452 A.2d 1355 (1982).

Reversed and remanded. This court does not retain jurisdiction.

      . The rifle was a thirty-thirty Savage hunting rifle Model 340A. The weapon in its original form had a barrel length of twenty-three (23) inches and an overall length of forty (40) inches. The barrel had been "sawed-off’ to twelve and three/quarter (123A) inches. Additionally, the stock or butt-end of the weapon had been cut down. After alteration, the weapon was only twenty-two (22) inches in length.

      . § 908. Prohibited offensive weapons
      (a) Offense defined. — A person commits a misdemeanor of the first degree if, except as authorized by law, he makes, repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon.
      (b) Exception. — It is a defense under this section for the defendant to prove by a preponderance of evidence that he possessed or dealt with the weapon solely as a curio or in a dramatic performance, or that he possessed it briefly in consequence of having found it or taken it from an aggressor, or under circumstances similarly negativing any intent or likelihood that the weapon would be used unlawfully.
      (c) Definition. — As used in this section “offensive weapon” means any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury with serves no common lawful purpose. 1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 1973.


author: CAVANAUGH, Judge:

text:
    476 A.2d 1308
    COMMONWEALTH of Pennsylvania v. Brent Walter DORSEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1983.
    Filed May 4, 1984.
    Petition for Allowance of Appeal Denied Nov. 12, 1984.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Richard A. Sheetz, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.

      Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This is an appeal from a Judgment of Sentence after finding a parole violation imposed by the Court of Common Pleas of Lancaster County. The pertinent facts are as follows: Dorsey pled guilty to a charge of robbery and was sentenced to a term of imprisonment of eleven and one-half months to twenty-three months. He was also fined, ordered to pay costs of prosecution, and to make restitution to the victim. Appellant was paroled less than nine months after being incarcerated and was directed as a specific condition of his parole to make payments on his fine, costs and restitution in the amount of $15.00 per week. Appellant subsequently violated the expressed condition of his parole by failing to satisfy the financial obligation imposed by the lower court and was therefore recommitted to serve the balance of his sentence. Dorsey filed a motion to modify sentence which was denied. He then filed this direct appeal. For the following reasons we affirm in part, reverse in part and remand.

Initially, appellant claims that the notice he received informing him of his alleged parole violation and ensuing hearing was invalid; therefore, the lower court erred in even considering a parole violation. Specifically, he avers that the capias, although signed by the lower court prior to the expiration of his parole period, was not filed with the clerk of court until after the termination of his parole, therefore, the notice was invalid. We find no merit to this contention.

Our review of the record shows that the alleged parole violation occurred during the parole period and the notice in question was signed by the lower court five days prior to the expiration of appellant’s parole, but the notice was not actually filed with the clerk of court’s office for almost sixty more days. While not approving of this delay we see in it no prejudice to appellant. We do not agree with appellant’s position that in all cases notice of an alleged parole violation must be issued prior to the expiration of a parole period. Furthermore, the record discloses that the Commonwealth complied with all of the required provisions regarding notice of the charges and the subsequent parole revocation hearing. See Commonwealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246 (1983); Commonwealth v. Ziegler, 286 Pa.Super. 26, 428 A.2d 220 (1981); Commonwealth v. DeLuca, 275 Pa.Super. 176, 418 A.2d 669 (1980); Pa.R.Crim.P. 1409. We therefore conclude that appellant received valid notice pertaining to his parole violation charge and revocation hearing.

Next appellant claims that there was an unreasonable delay between the alleged parole violation and the parole revocation hearing. He argues that there was almost a five month period of delay and that he was prejudiced by this lapse of time since the hearing took place subsequent to the expiration of his parole.

A revocation hearing may be held after the expiration of the parole period and this does not automatically cause a violation of the parolee’s right to a speedy hearing. Commonwealth v. Gaus, 300 Pa.Super. 372, 446 A.2d 661 (1982); Commonwealth v. Burrell, 497 Pa. 367, 441 A.2d 744 (1982); Commonwealth v. Ruff, 272 Pa.Super. 50, 414 A.2d 663 (1979). A revocation hearing however, must be held as speedily as possible and within a reasonable time after the parole violation. Commonwealth v. Kane, supra; Commonwealth v. Sanders, 303 Pa.Super. 139, 449 A.2d 617 (1982); Pa.R.Crim.P. 1409. In determining the validity of a claim that an unreasonable delay existed between a parole violation and revocation hearing, the relevant period is the length of time between custody of a parolee under a valid warrant and the revocation hearing. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Commonwealth v. Holmes, 248 Pa.Super. 552, 375 A.2d 379 (1977). A triparte test is then employed in each case to determine the reasonableness of the lapse of time:

To determine the reasonableness of the delay, the court examines three factors: the length of the delay, the reasons for the delay, and the prejudice to the defendant, as a result of the delay.

Commonwealth v. Kane, supra, 315 Pa.Super. at 217-218, 461 A.2d at 1249. See also, Commonwealth v. Dubuisson, 303 Pa.Super. 145, 449 A.2d 620 (1982); Commonwealth v. Edwards, 303 Pa.Super. 454, 450 A.2d 15 (1982); Commonwealth v. Sanders, supra; Commonwealth v. Ballard, 292 Pa.Super. 129, 436 A.2d 1039 (1981). The record discloses that a bench warrant was issued for Dorsey’s arrest on November 13, 1981, and he was served with this warrant on November 24, 1981 in a Lancaster County Prison. The revocation hearing took place on February 12, 1982. The length of the delay therefore was not five months but less than three months. See Commonwealth v. Kane, supra (eight month delay was held not unreasonable); Commonwealth v. Dubuisson, supra (five month delay was held not unreasonable); Commonwealth v. Johnson, 277 Pa.Super. 88, 419 A.2d 674 (1980) (seven month delay was held not unreasonable). The reason for the delay was not explained by the Commonwealth, however, appellant does not contend nor do we conclude, based upon our review of the record, that there was a malicious attempt by the Commonwealth to impede appellant’s defense. See, Commonwealth v. Kane, supra; Commonwealth v. Johnson, supra; Commonwealth v. Waters, 252 Pa.Super. 357, 381 A.2d 957 (1977). More so, we find the delay did not cause appellant’s incarceration. Both counsel stipulated that Dorsey was incarcerated on unrelated charges during this period of delay as he was unable to make bail on these charges. We therefore fail to see how appellant was prejudiced by the delay in scheduling the hearing. Consequently we find the revocation hearing was scheduled in accordance with Pa.R.Crim.P. 1409.

Finally, appellant assigns the following as error by the lower court in revoking his parole: (1) the lower court failed to find that he had the ability to pay the fine and costs or, therefore, that he willfully violated his parole; (2) the lower court failed to articulate its reasons for the sentence it imposed in violation of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and as a result appellant is unable to determine whether the sentence was excessive. We agree with appellant in regard to both of these contentions.

The Commonwealth in each probation or parole revocation proceeding must prove by a preponderance of the evidence a violation of such parole. Commonwealth v. Griggs, 314 Pa.Super. 407, 461 A.2d 221 (1983) Pa.R.Crim.P. 1409. However, the issue as to whether parole or probation may be revoked for less than willful conduct has remained as an open question in Pennsylvania. See Commonwealth v. Edward, 303 Pa.Super. 454, 450 A.2d 15 (1982); Commonwealth v. DelConte, 277 Pa.Super. 296, 419 A.2d 780 (1980); Commonwealth v. Holm, 233 Pa.Super. 281, 335 A.2d 713 (1975); Commonwealth v. Rooney, 233 Pa.Super. 225, 335 A.2d 710 (1975). The U.S. Supreme Court however, in Bearden v. Georgia, 461 U.S. 660 at 673-674, 103 S.Ct. 2064 at 2073, 76 L.Ed.2d 221 at 226 (1983) recently decided this question in regard to revocation proceedings for failure to pay a court imposed financial obligation. The Court stated:

We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment. (Emphasis added).

Our review of the record in accordance with the principle enunciated by the United States Supreme Court in Bearden, supra, discloses that the Commonwealth’s witness, a clerk for the Bureau of Collections of the Lancaster County Treasurer’s Office, testified that appellant in excess of one year on parole, made only two nominal payments toward the costs and fine accessed against him by the lower court. We further note appellant did have the opportunity to provide evidence at his revocation hearing that he was indigent and was or would be unable to pay these debts. Commonwealth ex rel. Benedict v. Cliff, 451 Pa. 427, 304 A.2d 158 (1973); Commonwealth v. Schwartz, 275 Pa.Super. 112, 418 A.2d 637 (1980); Pa.R.Crim.P. 1407. Nor did appellant offer any evidence concerning his indigency. However the lower court did not inquire into the reasons for appellant’s failure to pay or did it make any findings pertaining to the willfullness of appellant’s omission as required by Bearden, supra. Based upon our review we conclude that the lower court erred in not making a specific determination and findings in accordance with Bearden v. Georgia, supra.

The sentencing proceeding also failed to comport with the appropriate standards. See Commonwealth v. Kane, supra; Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982); Commonwealth v. Gaus, supra; Commonwealth v. Rudy, 304 Pa.Super. 64, 450 A.2d 102 (1982); Commonwealth v. Gallagher, 296 Pa.Super. 382, 442 A.2d 820 (1982); Commonwealth v. Steward, 276 Pa.Super. 64, 419 A.2d 96 (1980). The court gave no record explanation for recommitting appellant for the balance of his sentence. The record reflects that the parole revocation hearing concluded as follows:

THE COURT: The oral motions as filed by Counsel on behalf of Brent Walter Dorsey are denied and dismissed.
Brent Walter Dorsey is found to be in violation of the terms and conditions of his parole granted on September 4, 1980, and he is recommitted for the balance of his sentence.
THE CLERK: Costs on the Defendant?
THE COURT: Oh, Yes.
MR. CAMPBELL: [Ass’t Public Defender] Your Hon- or, we will file written motions. This will have to be re-set for a hearing to properly deal with it.
THE COURT: Take that up with Mr. Sheetz. [Ass’t District Attorney]
(Whereupon, at or about 9:56 o’clock a.m. the proceeding was concluded.)

It is apparent, the lower court failed to state on the record its reasons for the sentence and this also precludes us from determining if the lower court abused its discretion and imposed a sentence that was excessive. Commonwealth v. Mullen, 321 Pa.Super. 19, 467 A.2d 871 (1983); Commonwealth v. Gaus, supra.

The Commonwealth argues the lower court articulated its reasons for revoking parole and sentencing appellant to the balance of his sentence in its memorandum opinion. Even if we were to agree this procedure is not in accordance with Riggins, supra. An en banc decision of this Court concluded in Commonwealth v. Mullen, supra, that a sentencing court must place on the record at the time of sentencing, in the presence of the defendant, its reasons for the imposition of sentence, otherwise the sentence will not comport with Riggins, supra. Therefore, we may not consider the lower court’s memorandum opinion in evaluating if the court’s imposition of sentence violated Riggins, supra.

Judgment of sentence vacated and case remanded for resentencing. Jurisdiction relinquished.

SPAETH, President Judge, concurs in the result.

      . The clerk for the Bureau of Collections of the Lancaster County Treasurer’s Office testified that appellant satisfied the restitution requirement, therefore only the costs and fine were outstanding.

      . Appellant incorrectly calculated the period of delay to be five months. He erroneously initiated the running of the period on September 18, 1981, when the capias was signed by the lower court but correctly terminated the period on February 12, 1982, the date of his revocation hearing.

      . Appellant does not state in his brief to this court in what manner he was prejudiced by the delay between his parole violation and revocation hearing. The record, however, indicates that appellant’s counsel at the PCHA hearing argued that appellant was prejudiced, "due to his inability to be out on the street making money to pay his fine off, his inability to be out on the street better to cooperate with his attorney in the preparation of a defense. "(PCHA N.T. 13). We cannot agree that this argument amounts to any type of prejudice since Dorsey could not make bail on his previous unrelated charges.

      . There have been cases where this Court has affirmed revocation and has found willful conduct. See Commonwealth v. Holm, 233 Pa.Super. 281, 335 A.2d 713 (1975); Commonwealth v. Rooney, 233 Pa.Super. 225, 335 A.2d 710 (1975). The question, however, of whether a court must determine if a parolee's conduct was a willful violation of such parole remained unanswered.


author: WIEAND, Judge:

text:
    476 A.2d 1313
    COMMONWEALTH of Pennsylvania v. David R. NIXON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 30, 1983.
    Filed May 4, 1984.
    Petition for Allowance of Appeal Denied Oct. 12, 1984.

      Dennis M. DiMartini, Monaca, for appellant.
    Anthony J. Berosh, Assistant District Attorney, Beaver, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and HESTER, JJ.
   WIEAND, Judge:

David R. Nixon entered a plea of guilty to burglary and pleas of nolo contendere to two charges of escape. On the burglary charge, he was sentenced to serve a term of imprisonment for not less than two and one-half nor more than ten years and was ordered to make restitution. On the escape charges, he was sentenced to two concurrent terms of imprisonment for not less than two and one-half nor more than seven years to be served consecutively to the sentence for burglary. On direct appeal from the judgments of sentence, Nixon argues that his sentences for escape were contrary to law and that the total time to be served was excessive. We conclude that one of the sentences for escape exceeded, the maximum authorized by statute and must be vacated. In all other respects appellant’s sentences are proper. His contention of excessiveness is lacking in merit.

The crime of escape is graded by Section 5121(d) of the Crimes Code, 18 Pa.C.S. § 5121(d), as follows:

(d) Grading.—
(1) An offense under this section is a felony of the third degree where:
(1) the actor was under arrest for or detained on a charge of felony or following conviction of crime;
(ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or
(iii) a public servant concerned in detention of persons convicted of crime intentionally facilitates or permits an escape from a detention facility.
(2) Otherwise an offense under this section is a misdemeanor of the second degree.

The information filed to No. 276 of 1981 accused appellant of escape in that he did “unlawfully remove himself from official detention or fail to return to official detention following temporary leave granted for a specific purpose or limited period, all of which is against ... 5121(a).” There were no facts recited in the information to suggest whether the offense committed by appellant was a felony or misdemeanor.

In Commonwealth v. McNeill, 293 Pa.Super. 319, 439 A.2d 131 (1981) (Popovich, J., dissenting), a panel of this Court held that “if an indictment or information fails to set forth the degree of the offense, a conviction for escape must be graded as a misdemeanor of the second degree.” Id., 293 Pa.Superior Ct. at 322, 439 A.2d at 133. See also and compare: Commonwealth v. Jones, 279 Pa.Super. 93, 420 A.2d 1046 (1980) and Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979).

The Commonwealth argues that McNeill is not controlling where, as here, the plea colloquy disclosed to appellant that his offense was a felony for which a maximum sentence of seven years could be imposed by the court. This argument must fail. In Commonwealth v. Longo, supra, another panel of this Court considered a similar issue where the information gave no indication of the grade of the retail theft alleged therein. The Court held that the guilty plea colloquy could not change the offense charged in the information. When a defendant enters a plea of guilty to an information charging one offense, he cannot be sentenced for another, more serious offense. This is so even though the guilty plea colloquy suggests that he is to be sentenced for the more serious offense.

These decisions are controlling. When appellant entered a plea of nolo contendere to the information at 276 of 1981, his plea was entered to escape, a misdemeanor of the second degree. The maximum sentence for such an offense was imprisonment for two years. 18 Pa.C.S. § 1104. Because the sentence imposed by the court exceeded the statutory maximum, it must be vacated.

The same result does not follow in No. 370 of 1981. The information filed in that case averred that appellant had acted “feloniously” in making his escape. The offense to which appellant entered a plea of nolo contendere in this case, therefore, was a felony; and he could properly be sentenced for a felony of the third degree. See: Commonwealth v. Jones, supra.

Appellant’s remaining contention is wholly without merit. The sentencing guidelines, it may be observed, have no application for appellant’s sentences were imposed on August 5, 1981, prior to the effective date of the sentencing guidelines. The sentencing court had broad discretion in imposing sentence, and this Court will not find an abuse of discretion unless the sentencing court exceeded the maximum sentence authorized or imposed a sentence that was manifestly excessive. Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984); Commonwealth v. Black, 321 Pa.Super. 44, 467 A.2d 884 (1983); Commonwealth v. Gaus, 300 Pa.Super. 372, 377, 446 A.2d 661, 664 (1982); Commonwealth v. Corson, 298 Pa.Super. 51, 56, 444 A.2d 170, 172 (1982); Commonwealth v. Rooney, 296 Pa.Super. 288, 292, 442 A.2d 773, 774-775 (1982).

In the instant case, the sentencing court considered the seriousness of appellant’s offenses, the plea bargain negotiated on appellant’s behalf, appellant’s assistance in solving other burglaries, his prior criminal record, his personal circumstances and the potential for rehabilitation. Our review of these same considerations fails to support appellant’s contention that the cumulative effect of the sentences was manifestly excessive.

The judgments of sentence imposed at Nos. 201 and 370 of 1981 are affirmed. The sentence imposed at No. 276 of 1981 is vacated, and that case is remanded for resentencing.

      . An immediate appeal was not filed, but after a P.C.H.A. proceeding, Nixon was permitted to file a direct appeal nunc pro tunc.

      . Appellant has also argued that the sentencing court’s comments following a hearing on the petition to modify sentence evidenced an intent that appellant be given early eligibility for pre-release programs. There is no merit in this contention. Moreover, there is a federal detainer which is now pending against him.


author: LIPEZ, Judge:

text:
    476 A.2d 1316
    COMMONWEALTH of Pennsylvania v. James McINTOSH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1983.
    Filed May 4, 1984.

      Robert F. Pappano, Assistant Public Defender, Media, for appellant.
    Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   LIPEZ, Judge:

Defendant James McIntosh was convicted in a jury trial of robbery, 18 Pa.C.S. § 3701, theft by unlawful taking, 18 Pa.C.S. § 3921, recklessly endangering another person, 18 Pa.C.S. § 2705, terroristic threats, 18 Pa.C.S. § 2706, possession of firearms without a license, 18 Pa.C.S. § 6106, committing crimes with firearms, 18 Pa.C.S. § 6103, and criminal conspiracy, 18 Pa.C.S. § 903. Post-verdict motions were denied, and defendant was sentenced to ten to twenty years’ imprisonment for robbery and a consecutive two to four years’ imprisonment for conspiracy, with sentences suspended on all other charges. In this appeal, defendant contends: (1) that he should be granted a new trial on all charges because the lower court erred in allowing witnesses who had viewed an uncounseled photographic array to make in-court identifications of defendant; and (2) that his conspiracy conviction should be reversed because of a fatal variance between the criminal information on that charge and the proof at trial. We agree that the judgment of sentence for conspiracy must be reversed, but we find that defendant’s motion for a new trial on the other charges was correctly denied.

I

The charges were brought in connection with an incident that occurred at Wyeth Laboratories in Radnor, Pennsylvania at approximately 12:00 noon on June 14, 1979. Lewis Oswald, an employee of Wyeth’s cashier’s office, was approached by a man with a revolver who ordered him to open the door to the cashier’s cage. When Oswald did so, a second man entered the office, ordered him to lie on the floor, and handcuffed his wrist and ankles. Gerry Mixon, another Wyeth employee, saw the two men in the cashier’s office and, believing something was wrong, left the area to notify security.

Catherine Welch, another Wyeth employee, was walking down the hallway to the cashier’s office to cash a check when she was stopped by a young man who asked her if she had a match. She replied that she did not, then walked up to the cashier’s window, where she saw a second man kneeling on the floor. A third man was also in the cashier’s office, and one of them pointed a gun at her. The men in the office then ran, carrying a blue canvas bag. Kate Eby, another Wyeth employee, saw the two men with the blue bag leave the cashier’s cage, join a third man in the hallway, and leave the building. The three men also passed another group of Wyeth employees as they fled from the building, nearly stepping on the foot of one of the employees, Maria Weber, as they did so. After the men left, a red car which had been noticed by several employees because it lacked a Wyeth parking sticker was found to be gone from the parking lot. Approximately $47,000.00 had been taken from the cashier’s office.

Stephen Cauterucci and Thomas Tone were eating their lunch in a truck parked in a lot a few miles from Wyeth Laboratories on the day of the incident. At about 11:30 that morning, they had seen a black car and a red car pull into an adjacent parking lot and the two men who had been in the black car park it and get into the red car. The red car then left the lot. About twenty-five minutes later, Tone and Cauterucci saw the same red car speed into the parking lot and park. Four men got out of that car and entered the black car, which was parked next to that of Phyllis Murphy, who was in her car about to pull out of the parking lot. Murphy waited to let the black car leave first, but when the driver, whom she later identified as defendant, had trouble starting the car, she drove away. Tone and Cauterucci then saw one of the men get out of the car and walk toward a nearby train station, carrying a blue bag. In the meantime, however, the other men succeeded in starting the black car. The man with the bag got back into the car and drove it from the lot. Tone and Cauterucci later identified defendant as one of the men seated on the driver’s side of the car.

At trial, Catherine Welch, Gerry Mixon, Maria Weber, Phyllis Murphy, Thomas Tone and Stephen Cauterucci all made positive in-court identifications of defendant as one of the men involved in the robbery. Defendant contends that none of these witnesses should have been permitted to make in-court identifications because all of them had previously been shown a photographic array, including a picture of defendant, without the presence of defendant’s counsel. He contends that the in-court identifications were the result of exposure to defendant’s picture in this impermissible procedure and hence should have been excluded. The suppression court, however, in granting defendant’s motion to suppress the identifications made at the time of photo array itself, found that the witnesses had an independent basis for their in-court identifications and that such identifications were therefore admissible. We agree.

It is well established that despite a witness’ participation in an uncounseled or suggestive pre-trial identification procedure, his in-court identification may be admitted so long as the Commonwealth establishes by clear and convincing evidence that the in-court identification has a basis independent of the illegal pretrial confrontation. Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970); Commonwealth v. Townsend, 280 Pa.Super. 155, 421 A.2d 452 (1980). In reviewing the suppression court’s determination that the in-court identifications here did have an independent basis, we consider only the Commonwealth’s evidence and so much of the evidence presented by the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Ivy, 302 Pa.Super.Ct. 114, 119, 448 A.2d 553, 555 (1982). The factors to be considered in determining whether the in-court identification testimony of the witnesses was based on their observations at the time of the robbery and thus had a basis independent of the tainted photographic array are: (1) the witnesses’ opportunity to observe the criminal act; (2) the existence of any discrepancy between the witnesses’ prior description of the criminal and the defendant’s actual appearance; (3) any identification of anyone other than the defendant; (4) any failure to identify defendant; and (5) the lapse of time between the crime and the identification. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Commonwealth v. Whiting, supra.

As to witnesses Tone, Cauterucci and Murphy, the evidence at the suppression hearing clearly establishes the existence of an independent basis for in-court identification. All three of these witnesses had ample opportunity to observe defendant for several minutes as he and his companions attempted to start the black car. The witnesses’ attention had been drawn to the four men by their unusual behavior in speeding into the parking lot and changing cars. All three witnesses had an unobstructed view of the two men on the driver’s side of the car in bright daylight, Tone and Cauterucci from a distance of twenty to thirty feet, Murphy from only a car’s width away. The record does not reveal whether any of the three witnesses gave a prior description of the men to police, beyond a general statement describing the color of the cars and the fact that the men were black. However, neither Tone nor Murphy ever failed to identify defendant or identified anyone other than defendant. Cauterueci never failed to identify defendant and the only occasion on which he identified anyone other than defendant was when he was shown the photo array and picked four pictures, defendant’s among them, as being of the four men involved in the incident. Moreover, Tone and Cauterucci’s first identification of defendant at the photo array occurred only four days after the incident. Murphy first identified defendant on June 27, thirteen days after the incident. All three witnesses testified that their in-court identifications were made on the basis of their recollection of the incident and not on their having viewed defendant’s photograph in the array or having seen him at his preliminary hearing or arraignment. We think that in light of these witnesses’ excellent opportunity to observe defendant and in the absence of any factors casting serious doubt upon the accuracy of their identifications, the lower court correctly found that an independent basis existed for their in-court identifications.

As to witnesses Gerry Mixon and Catherine Welch, we also think that the lower court correctly found an independent basis for in-court identifications. Both were able to observe the robbers in good light under circumstances likely to focus attention upon them. Mixon viewed defendant for several seconds from a distance of about twenty feet and Welch viewed him for one or two minutes from only two feet away. Both witnesses’ prior descriptions of defendant, though sketchy, were accurate. Although both witnesses failed to identify defendant positively in the photographic array four days after the incident, neither of them ever identified anyone other than defendant. Both witnesses made positive identifications of defendant at the suppression hearing and testified that their identifications were based upon having seen defendant during the robbery and not upon having seen him in the photographic array or at preliminary proceedings. We think that this record bears out the suppression court’s findings of an independent basis for Mixon’s and Welch’s in-court identifications. Although the failure to identify defendant in the photo array is a factor that we must consider in assessing this finding, it is only one of several factors. We agree with the lower court that these other factors, particularly the witnesses’ excellent opportunity to view the robbers during the incident, outweigh the failure to make a photographic identification in this case. Thus the failure to identify defendant’s photograph was properly treated as a factor to be brought out on cross-examination as affecting the weight rather than the admissibility of the in-court identifications. See Commonwealth v. Silver, 499 Pa. 228, 237, 452 A.2d 1328, 1332 (1982); Commonwealth v. Ivy, supra, 302 Pa.Super. at 121, 448 A.2d at 556.

As to witness Maria Weber, we agree with defendant that the suppression court’s decision to permit an in-court identification may have been erroneous. Weber’s opportunity to observe defendant was poorer than that of the other witnesses, for she saw him only as he ran out of the building. She was unable to identify him in the photo array, and made a positive identification only after seeing a photograph in the newspaper which showed defendant in police custody and indicated that he had been arrested for the robbery at Wyeth. Moreover, the suppression court’s findings of fact contained no specific references to Weber which would support its conclusion that she had an independent basis for making an in-court identification. Even if admission of her identification was error, however, we must conclude that it was harmless in view of the positive identifications made by five other witnesses and the extensive cross-examination on the factors casting doubt on her identification. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978); Commonwealth v. Ivy, 302 Pa.Super.Ct. 114, 122, 448 A.2d 553, 557 (1982). Accordingly, we hold that defendant’s motion for a new trial based on the admission of the in-court identifications was correctly denied.

II

Defendant’s second claim is that his conspiracy conviction should be reversed because of a variance between the information on that charge and the proof at trial. The conspiracy information charged defendant of conspiring with Gerald Scott to commit the crimes at Wyeth Laboratories. Although Gerald Scott was originally charged along with defendant, all charges against him were later dropped by the Commonwealth, and when defendant went to trial it was with another individual as co-defendant. The information was never amended to name this co-defendant as co-conspirator, however, nor did the information contain any language charging defendant with conspiring with unknown persons or with anyone other than Gerald Scott. At trial, Gerald Scott was never mentioned by any of the Commonwealth’s witnesses, nor was there any evidence indicating that Gerald Scott was one of the four men involved in the incident.

We agree with defendant that this variance between the information and the proof is fatal to the validity of the conspiracy conviction. The purpose of a criminal information is to notify the defendant of the charge he has to meet. Commonwealth v. Petrillo, 338 Pa. 65, 77, 12 A.2d 317, 324 (1940). Although the information is not to be read in an overly technical manner, we must arrest judgment where an error in the information is one that could “mislead the defendant or [that] involves an element of surprise prejudicial to the defendant’s efforts to prepare his defense, or precludes the defendant from anticipating the prosecution’s proof, or impairs a substantial right.” Commonwealth v. Pope, 455 Pa. 384, 390-91, 317 A.2d 887, 890, (1974). In Commonwealth v. Thomas, 278 Pa.Super.Ct. 39, 419 A.2d 1344 (1980), this court held that naming the wrong co-conspirator in an information had precisely such prejudicial effect:

We think it clear that an outright substitution of a named co-conspirator in a complaint constitutes “a different set of events” and could require “materially different defenses” of the accused. A charge of conspiring with one [person] to commit certain offenses must necessarily embrace a unique factual setting which is radically altered when the Commonwealth seeks to charge that appellant conspired with [a second person] and not [the first]. Further, a proposed defense to a conspiracy charge may be rendered useless and a new defense strategy called for depending upon whom the defendant is alleged to have conspired with____ When a defendant can be misled by the complaint, then he does not have fair notice of the charges pending____

Id., 278 Pa.Superior Ct. at 48-49, 419 A.2d at 1349-50. We thus conclude that the variance between the information here, which charged conspiracy only with Gerald Scott, and the proof at trial, which, if it showed a conspiracy at all, showed only that defendant conspired with his co-defendant Stanley Pugh or other unknown persons, requires reversal of the conspiracy conviction in this case.

It is not clear from the record of sentencing proceedings in this case whether the conspiracy conviction actually influenced the court in imposing sentence on the other convictions. However, we certainly cannot say that it is obvious that the same sentences would be imposed if we were to remand for resentencing on those convictions, see Commonwealth v. Crowson, 267 Pa.Super.Ct. 46, 405 A.2d 1295 (1975), or that such a remand would be “a mere procedural exercise,” see Commonwealth v. Grant, 235 Pa.Super.Ct. 357, 341 A.2d 511 (1975). As it thus appears that the invalid conspiracy conviction may have influenced the sentence on one or more of the other convictions, we will vacate all of those sentences and remand for resentencing on the valid charges without consideration of the invalid one. See Commonwealth v. Thomas, supra, 278 Pa.Super. at 49-51, 419 A.2d at 1350-51; Commonwealth v. Lockhart, 223 Pa.Super.Ct. 60, 296 A.2d 883 (1972).

Judgment of sentence for conspiracy is reversed and defendant is discharged on that count. Judgments of sentence on all other charges are vacated, and the case is remanded for resentencing on those counts. Jurisdiction is relinquished.

      . Welch did pick a photograph which was not of defendant out of the array, but it is clear from the record that she believed the photograph was of the other man she had seen in the cashier’s office, not the man she later identified as defendant.

      . The Commonwealth's argument that the variance is harmless because the information gave defendant as much notice as would a permissible information charging him with conspiracy with persons unknown was also rejected in Thomas:

      This is ... not a case wherein the complaint alleges a conspiracy, but avers that the identities of one or more co-conspirators are unknown, 16 Am.Jur.2d, Conspiracy, § 28 ____ Indeed, the Supreme Court over 100 years ago drew a marked distinction between the latter cases and the issue at hand. In Rough v. Commonwealth, 78 Pa. 495 (1875), where the defendant was accused of selling liquor without a license, the name of his buyer was inserted on the space theretofore left blank in the indictment. The court did not find this to be a material change and stated, "We are of the opinion the amendment was proper. Had another name been in the indictment, and evidence offered exhibiting a variance, the case would have fallen within the letter of the Act [permitting only amendments to indictments which are 'not material to the merits of the case’]. It seems to us a blank is not so great a variance as the averment of a wrong name. The former merely conveys no information; but the latter actually misleads." 78 Pa. at 496 (emphasis added); see Anno. 14 A.L.R.3d 1358.

        Id., 278 Pa.Superior Ct. at 48-49, 419 A.2d at 1349-50.


text:
    476 A.2d 1322
    Concetta GALLO, Appellant, v. J.C. PENNEY CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 8, 1984.
    Filed May 11, 1984.
    Petition for Allowance of Appeal Denied Sept. 25, 1984.

      Ronald W. Shipman, Easton, for appellant.
    Robert E. Simpson, Jr., Easton, for appellee.
    Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

The appellant, Concetta Gallo, commenced an action in trespass and assumpsit against appellee, J.C. Penney Casualty Insurance Company, to recover No-Fault benefits to which she claims entitlement by reason of injuries sustained as a passenger in a snowmobile involved in an accident. The Court of Common Pleas of Northampton County, per the Honorable Franklin S. Van Antwerpen, granted the appellee’s motion for judgment on the pleadings on the ground that a snowmobile is not a motor vehicle as defined by the policy and by the No-Fault Act. The court concluded that because a snowmobile is not a vehicle, the contract of insurance between appellant and appellee does not provide coverage for the snowmobile accident.

The sole question before us is whether the trial court erred in deciding as a matter of law that a snowmobile is not a motor vehicle. In reviewing a trial court’s order granting judgment on the pleadings, we are guided by the following standard:

[A] motion for judgment on the pleadings may be granted in cases which are so free from doubt that a trial would clearly be a fruitless exercise. Such a motion is in the nature of a demurrer; all of the opposing party’s well pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him.

Karns v. Tony Vitale Fireworks Corporation, 436 Pa. 181, 184, 259 A.2d 687, 688 (1969); Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966). A judgment on the pleadings shall not be entered when there are unknown or disputed issues of fact. North Star Coal Company v. Waverly Oil Works, Co., 447 Pa. 241, 288 A.2d 768 (1972); Sun Oil Company v. Bellone, 292 Pa.Super. 341, 437 A.2d 415 (1981). In conducting this inquiry, the court should confine its consideration to the pleadings and relevant documents. DiAndrea v. Reliance Savings and Loan Association, 310 Pa.Super. 537, 456 A.2d 1066 (1983); Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 437 A.2d 1262 (1981); SN, Inc. v. Long, 208 Pa.Super. 38, 220 A.2d 357 (1966). No affidavits, depositions or briefs may be considered. Id. Finally, we note that the “granting of a motion for judgment, on the pleadings may be appropriate in cases that turn upon the construction of a written agreement.” DiAndrea v. Reliance Savings and Loan Association, supra, 310 Pa.Super. at 546, 456 A.2d at 1070.

The question before us was put into issue in the pleadings. See Defendant’s Answer and New Matter at p. 3, para. 17; Plaintiff’s Reply to New Matter at p. 1, para. 17. On May 6, 1982, the appellee filed a motion for judgment on the pleadings in which appellee contended, inter alia, that appellant had failed to state a claim upon which relief could be granted in that the insurance contract did not cover accidents involving snowmobiles. After briefs were filed by the parties and argument was held, the court granted the motion by order of July 6, 1982.

The insurance contract between the appellant and the appellee provides as follows:

SECTION I
PERSONAL INJURY PROTECTION COVERAGE
In accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act, the Company will pay any or all personal injury protection for:
(a) medical expenses,
(b) work loss,
(c) replacement services loss,
(d) funeral expenses, and
(e) survivor’s loss
for bodily injury to an eligible person due to an accident resulting from the maintenance or use of a motor vehicle as a vehicle.
DEFINITIONS
“Motor Vehicle” means any vehicle of a kind required to be registered under the Pennsylvania Vehicle Code. (Emphasis in original).

This provision parallels the requirements of the Pennsylvania No-Fault Act. Accordingly, reference to the Pennsylvania Vehicle Code is necessary to establish whether the term “motor vehicle” encompasses snowmobiles.

Section 102 of the 1976 Vehicle Code defines the terms “motor vehicle” and “vehicle”:

“Motor vehicle. ” A vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated upon rails.
“Vehicle. ” Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks.

75 Pa.C.S.A. § 102. These definitions are somewhat intertwined in that the definition of “motor vehicle” requires that the instrument or device in question be a “vehicle”. Construing these provisions in pari materia, and in conjunction with other provisions of the Vehicle Code which will be discussed infra we conclude that a snowmobile is a motor vehicle.

To qualify as a vehicle, a snowmobile is required to be (1) a device, (2) in, upon or by which persons or property may be transported upon a highway. The term “device” is not defined by the Vehicle Code; however, according to the common and approved usage of the word, 1 Pa.C.S.A.App. § 1903(a), we unhesitatingly conclude that a snowmobile is a “device”. Moreover, the Vehicle Code makes it clear that a snowmobile may be transported upon a highway.

The general rule is set forth at 75 Pa.C.S.A. § 7721(a), which states: “Except as otherwise provided in this chapter, it is unlawful to operate a snowmobile on any street or highway which is not designated and posted as a snowmobile road by the governmental agency having jurisdiction.” The exception is set forth at 75 Pa.C.S.A. 7722(a) which states:

§ 7722. Designation of snowmobile roads

(a) General rule. — The Department of Transportation on State-designated highways and local authorities on any highway, road or street within its jurisdiction may designate any highway, road or street within its jurisdiction as a snowmobile road and may, in its discretion, determine whether such road shall be closed to vehicular traffic or whether snowmobiles may share this designated road with vehicular traffic.

This statute authorizes the use of motor vehicles on designated streets and highway. As such, snowmobiles qualify as “vehicles” under the Vehicle Code in that they are devices which may be legally transported, albeit under limited circumstances, upon highways in this Commonwealth. Moreover, a snowmobile is a “motor vehicle” because it is a (1) vehicle, (2) which is self-propelled, (3) does not receive power from overhead wires, and (4) does not operate exclusively on rails or tracks. Consequently, a snowmobile is both a “vehicle” and a “motor vehicle” as defined by 75 Pa.C.S.A. 102.

A snowmobile is also required to be registered under the Motor Vehicle Code. 75 Pa.C.S.A. § 7712. Thus, it appears that a snowmobile is potentially a “motor vehicle” under both the No-Fault Act and the terms of the insurance contract between appellant and appellee. The appellee argues that a snowmobile is not a motor vehicle on two grounds: (1) that a snowmobile cannot be used on a highway; and (2) that the Regulations interpreting the No-Fault Act specifically exclude snowmobiles. 31 Pa.Code § 66.1-103 C., 5 Pa.B. 897 (April 11, 1975). Having disposed of appellee’s first argument, we turn to the second.

The appellee argues that the form of the insurance policy issued to the appellant was one required to be used by the Insurance Department; that it had been submitted to, and approved by, the Insurance Department, and further that the policy provides it is “[i]n accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act.” Consequently, it is asserted that the No-Fault Act, and the Regulations promulgated thereunder, were intended to be incorporated into the policy. The reference to the No-Fault Act has been duly noted, supra at 3; however conspicuous by its absence in the policy is any reference, expressed or implied, to the Regulations promulgated under the No-Fault Act.

The Regulations are guidelines for the interpretation of the No-Fault Act. The definition found in the Regulations is not dispositive in the interpretation of a statutory phrase. Habecker v. Nationwide Insurance Company, 299 Pa.Super. 463, 470 n.6, 445 A.2d 1222, 1226 n.6 (1982). While the Regulations are often persuasive, we conclude that in the present case they do not mandate the exclusion of snowmobiles from coverage under the No-Fault Act.

Alternatively, we would conclude that the Regulations, while affording a minimum standard for a No-Fault insurance policy, do not put a ceiling on specified amount or type of coverage. 31 Pa.Code § 66.101. “An insurance company is free, out of motives of altruism, generosity or naked commercial advantage, to provide broader coverage than the No-Fault Act, and if it does so, the policy language controls.” Drake v. Donegal Mutual Insurance Company, 422 F.Supp. 272, 274 (W.D.Pa.1976); 7 Blashfield Automobile Law and Practice, Section 2715, pp. 7-8 (3d ed. 1966). Our conclusion is, therefore, that a motor vehicle as defined by the No-Fault Act and by the insurance contract includes snowmobiles.

Our analysis is not complete without an examination of the prior decisions of this court refining the definition of motor vehicle. In Siefert v. Nationwide Insurance, supra, we held that a trail bike, which was not equipped with a head lamp, tail lamp or horn, was not a “motor vehicle” for the purposes of the No-Fault Act. In Siefert, the panel’s analysis focused on the trail bike’s lack of equipment which would have been necessary for street use; equipment which was necessary for the bike to be registered.

In Crawford v. Allstate Insurance Company, supra, we held that a pick-up truck, which was operating on railroad tracks by means of a special adapting device when it was involved in an accident, was a motor vehicle under the No-Fault Act. The truck in question was registered in Ohio, and had been used both prior to and subsequent to the accident on highways in this Commonwealth. This court dismissed the insurer’s argument that the accident was not covered by insurance because it occurred on railroad tracks and not on a highway, stating: “[W]e are of the opinion that the proper test in applying the ‘maintenance and use’ concept to individual fact situations is whether the injury is causally related to the use of a motor vehicle.” Id., 305 Pa.Super. at 173, 451 A.2d at 477.

In Bills v. Nationwide Mutual Insurance Company, we held that a dune buggy which was unregistered and was not equipped with a rear lighting system, turn signals and hazard warning lights, a muffler or rear wheel shields (as required by the Vehicle Code) was not a “motor vehicle” under the No-Fault Act.

In Bills, Judge Johnson, in a characteristically well-reasoned opinion, went beyond the Siefert analysis and further refined the Crawford analysis by looking to the stated findings and purposes of the No-Fault Act. In response to those findings and purposes, Judge Johnson stated:

It seems reasonable to assert that our legislature did not have in mind that every conceivable injury arising from the use of any conceivable self-propelled vehicle where the accident might occur anywhere in the Commonwealth would résult in no-fault benefits under the Act. Even in Crawford, we were able to determine that the vehicle there involved had been used, from time to time, on the public highways.
Appellees argue that since the dune buggy here involved could have been driven on the highway, and since it is self-propelled, it fits the definitions of “vehicle” and “motor vehicle” contained in the Vehicle Code. With this proposition, we readily agree. See 75 Pa.C.S.A. § 102. As appellees point out in their Brief, however, the issue remains whether this dune buggy is a vehicle “of a kind required to be registered under [the Vehicle Code].”
We need not decide, nor do we attempt to determine, whether some other dune buggy, differently equipped or put to some other use, might fit within the ambit of the No-Fault Act. We here merely hold that an uninsured, unregistered vehicle which upon assembly lacks a substantial portion of the minimum equipment required for registration in this Commonwealth and which at the time of the accident continuously has been operated exclusively off of public highways without such required equipment, is not “a vehicle of a kind required to be registered under [the Vehicle Code],” (Footnote omitted)

Bills v. Nationwide Mutual Insurance Company, id., 317 Pa.Super. at 194-95, 463 A.2d at 1151-52. We find Judge Johnson’s observation especially relevant herein. Snowmobiles, while registered under the Vehicle Code, and potentially usable on highways in this Commonwealth, are not vehicles which are principally used on Commonwealth highways. Rather, they are more often operated on private lands and private roads. We do not believe that the legislature intended that coverage be provided for vehicles which are principally off-road vehicles when they are being operated other than on Commonwealth highways. With this in mind, we would hold that under the No-Fault Act snowmobiles are motor vehicles, but that coverage under the Act is provided only when the accident occurs on a public road, street or highway, which has been designated and posted as a snowmobile road by the government agency having jurisdiction, and when the vehicle is registered and has the equipment mandated by statute.

On the state of the record before us, we cannot determine whether these requisites have been met. Consequently, the case must be remanded to the trial court to determine the registration status of the vehicle, how it was equipped and most importantly, the situs of the accident. The order of the trial court granting judgment on the pleadings is vacated and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101, et seq.

      . The policy provision defining "motor vehicle” suffers from a defect similar to that in the corresponding provision in the No-Fault Act, 40 P.S. § 1009.103, in that it is not apparent whether reference is made to the 1959 Vehicle Code or the 1976 Vehicle Code. Previous panels of this court have referred to the 1976 Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81; 75 Pa.C.S.A. § 101, etseq., when construing the term motor vehicle. Bills v. Nationwide Mutual Insurance Company, 317 Pa.Super. 188, 191 n. 3, 463 A.2d 1148, 1150 n. 3 (1983); Crawford v. Allstate Insurance Company, 305 Pa.Super. 167, 171 n. 1, 451 A.2d 474, 476 n. 1 (1982); Siefert v. Nationwide Insurance, 289 Pa.Super. 160, 432 A.2d 1101 (1981). We likewise conclude that the 1976 Vehicle Code is the logical reference point.

      . “device ... e. a piece of equipment or a mechanism designed to serve a special purpose or perform a special function.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1961).

      . § 7712. Registration of snowmobiles
      (a) General rule. — Upon application therefor upon a form prescribed and furnished by the department which shall contain a full description of the snowmobile, the actual and bona fide name and address of the owner, proof of ownership and any other information the department may reasonably require, and which shall be accompanied by the required fee, the department shall issue a certificate of registration of a snowmobile and a decal showing the expiration date to the owner.

      . The cited Regulations stated in the definitional section:
      " 'Motor Vehicle’ — Motor Vehicle means a vehicle of a kind required to be registered under the Vehicle Code and shall not include: ... (f) snowmobiles.”
      31 Pa.Code § 66.1-103C.(f) It is interesting to note that Section 66.1 has been amended to read: " 'Motor Vehicle’ A vehicle of a kind required to be registered under the Vehicle Code (75 Pa.C.S.A. §§ 101-8122). 31 Pa.C. § 66.1, 10 Pa.B. 3656 (September 13, 1980).

      . § 1009.102 Findings and purposes
      (a) Findings. — The General Assembly hereby finds and declares that:
      (1) motor vehicles are the primary instrumentality for the transportation of individuals;
      (2) the transportation of individuals by motor vehicle over Commonwealth highways and other highways significantly affects interstate commerce, particularly in metropolitan areas;
      (3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce;
      (b) Purposes. — Therefore, it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims. (Emphasis added).

      . See 75 Pa.C.S.A. § 7721 (operation on streets and highways); 75 Pa.C.S.A. § 7741 (requiring head lamp and tail lamp); 75 Pa.C.S.A. § 7742 (requiring brakes); and 75 Pa.C.S.A. § 7743 (requiring a muffler)


author: HOFFMAN, Judge:

text:
    476 A.2d 1328
    ESTATE OF Marissa ROSATO v. HARLEYSVILLE MUTUAL INSURANCE COMPANY and Safeco Insurance Company. Appeal of HARLEYSVILLE MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1984.
    Filed May 11, 1984.
    Reargument Denied June 29, 1984.
    Petition for Allowance of Appeal Denied Nov. 13, 1984.

      James J. McCabe, Philadelphia, for appellant.
    Edward F. Silva, Philadelphia, for Rosato, appellee.
    Joseph Goldberg, Philadelphia, for Safeco, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

The question presented on appeal is whether a passenger in a vehicle struck by an uninsured motorist can stack or cumulate uninsured motorist benefits under her father’s automobile insurance policy covering three vehicles not involved in the accident where (1) the policy limits liability to single coverage, and (2) although not a named insured or premium-payor, she is an insured under the policy. We hold that she can stack uninsured motorist coverages and, accordingly, affirm the order of the court below.

On October 14, 1979, at approximately 1:30 a.m., Michael Coyle was operating a motorcycle on Conestoga Road in Radnor, Pennsylvania, when he was struck from behind by a negligently operated uninsured vehicle. Both Coyle and his passenger, Marissa Rosato, sustained injuries. Rosato’s injuries resulted in her death approximately 18 hours after the accident. Coyle’s motorcycle was owned by his employer, Wright Enterprises, Inc. d/b/a Devon Honda, which had insured it along with nine other motorcycles under a “garage fleet policy” with Providence Washington Insurance Company. At the time of Marissa’s death, James Rosato, her father, had in effect two separate insurance policies with Harleysville Mutual Insurance Company (appellant Harleysville) and Safeco Insurance Company (Safeco). The Harleysville “business auto” policy provided a single limit coverage of $30,000 uninsured motorist benefits on each of three vehicles. The Safeco “family auto” policy provided uninsured motorist coverage of $15,000 per person/$30,000 per accident on three other vehicles owned by James Rosato. On May 25, 1982, following a hearing, the arbitrators, in a two-to-one decision, awarded Rosato’s estate $90,000 under the Harleysville policy and $45,000 under the Safeco policy. Both Harleysville and Safeco petitioned to modify or vacate the arbitration award, alleging that the arbitrators made a mistake of law in allowing the decedent to cumulate coverages on the vehicles insured under the policies issued to James Rosato. On February 25, 1983, the lower court denied the petitions and confirmed the arbitration award. This appeal by Harleysville followed.

The Pennsylvania Uninsured Motorist Act provides, in relevant part:

No motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as are fixed from time to time by the General Assembly in section 1421 of article XIV of “The Vehicle Code”, act of April 29, 1959 (P.L. 58), under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom,

40 P.S. § 2000(a) (footnote omitted) (emphasis added). The legislative intent behind this act was noted by our Supreme Court in Harleysville Mutual Casualty Company v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968);

The purpose of the uninsured motorist law is to provide protection to innocent victims of irresponsible drivers. The amount of the coverage to be afforded by the uninsured motorist feature of the policy is set by the statute, but nowhere, explicitly or implicitly, does the act place a limit on the total amount a victim may recover if he suffers a loss resulting from the negligence of an uninsured motorist.
In Pattani v. Keystone Ins. Co., 426 Pa. 332, 231 A.2d 402 (1967), we quoted with approval the language of Katz v. American Motorists Ins. Co., [244 Cal.App.2d 886,] 53 Cal.Rptr. 669 (1966), that such statutes are “designed to give monetary protection to that ever changing and tragically large group of persons who while lawfully using the highways themselves suffer grave injuries through the negligent use of those highways by others.” We there declared for liberal construction of the statute in order to achieve the legislative intent, and we here adhere to that declaration.

Id., 429 Pa. at 395, 241 A.2d at 115. Accord, Novoseller v. Royal Globe Insurance Company, 317 Pa.Superior Ct. 217, 221-222, 463 A.2d 1163, 1165 (1983). The Uninsured Motorist Act allegedly ensures that innocent victims recover the damages they would have received had the uninsured tortfeasor maintained liability insurance. Bankes v. State Farm Mutual Automobile Insurance Company, 216 Pa.Superior Ct. 162, 168, 264 A.2d 197, 199 (1970). “The Act does not place any statutory maximum on the amount of coverage any individual insured can obtain, only the minimum amount of coverage each insurance policy must provide.” Antanovich v. Allstate Insurance Company, 320 Pa.Superior Ct. 322, 340, 467 A.2d 345, 354 (1983), allocatur granted, No. 18 W.D. Appeal Docket (February 10, 1984).

Because of this legislative intent and the absence of any statutory maximum, our courts have conclusively determined that an insured may stack uninsured motorist policies. In Harleysville Mutual Casualty Company v. Blumling, supra, 429 Pa. at 395-96, 241 A.2d at 115, our Supreme Court stated that “where the actual loss exceeds the limits of one policy, the insured may proceed under other available policies up to their individual limits or to the amount of the actual loss.” See also Novoseller v. Royal Globe Insurance Company, supra (stacking of insurance coverages is permissible in Pennsylvania). Stacking allows the injured insured to obtain the full benefit of all coverage paid for in premiums. Parker v. State Farm Insurance Company, 543 F.Supp. 806 (E.D.Pa.1982). Attempts by insurance companies to preclude stacking through exclusionary or limitation of liability clauses have been expressly rejected by our courts. See, e.g., State Farm Mutual Automobile Insurance Company v. Williams, 481 Pa. 130, 392 A.2d 281 (1978) (exclusionary clause prohibiting an insured’s recovery if the injury was sustained in a vehicle owned by a member of his household held invalid); Harleys-ville Mutual Casualty Company v. Blumling, supra, 429 Pa. at 396, 241 A.2d at 115 (automobile insurer eould not avoid its statutorily imposed liability by unilaterally inserting a liability-limiting clause). In Sones v. Aetna Casualty and Surety Company, 270 Pa.Superior Ct. 330, 334, 411 A.2d 552, 554 (1979), we stated:

[A] liability-limiting provision in a policy, the effect of which is to prohibit and preclude an injured person who is an insured under the policy from pyramiding or cumulating the separate uninsured motorist coverages available to him is in derogation of and repugnant to the Uninsured Motorist Act which requires uninsured motorist coverage in all policies of insurance with respect to each motor vehicle insured.

(Emphasis added). In the instant case, appellant’s “business auto” policy contains an endorsement for uninsured motorists insurance. This indorsement includes the following liability-limiting clause:

1. Regardless of the number of covered autos, insureds, claims made or vehicles involved in the accident, the most we will pay for all damages resulting from any one accident is the limit of UNINSURED MOTORISTS INSURANCE shown in the declarations.

The amount of uninsured motorists insurance shown in the declarations is the single limit of $30,000. Clearly, under the cases outlined above, this clause is void as repugnant to the Uninsured Motorist Act. Additionally, we note that our Supreme Court rejected a similar limitation of liability clause in Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 337-338, 473 A.2d 1005, 1010 (1984).

We must next address whether appellee should have been precluded from stacking because of decedent’s status as an unnamed insured who paid none of the premiums under appellant’s policy. In State Farm Mutual Automobile Insurance Company v. Williams, supra, our Supreme Court allowed the named insured, who had already received the maximum under his wife’s uninsured motorist policy, to recover the remainder of his actual loss under his own uninsured motorist policy. The Court thereby rejected an exclusionary clause which prohibited all recovery by the insured if the insured was occupying a motor vehicle owned by a resident of his household at the time of the accident. In holding the clause invalid, the Court concluded:

The insured may recover uninsured motorist benefits:

1. If the insured party paid the premiums of the policy and was the named insured; and
2. If the recovery under the second uninsured motorist coverage was limited to actual damages; and
3. If the recovery is not limited by the statutory exclusions.

Id. 481 Pa. at 143, 392 A.2d at 287. Following Williams, the courts debated whether the first criterion noted above was to be strictly adhered to or whether an unnamed insured under the policy who did not pay the premiums could nevertheless cumulate uninsured motorist coverages. In Sones v. Aetna Casualty and Surety Company, supra, we allowed a passenger in her husband’s automobile to stack uninsured motorist coverages because she was an insured under her husband’s policy, even though her husband paid the'premiums for his three covered automobiles. We stated:

The Supreme Court [in Williams ] ruled that the uninsured motorist statute mandates a floor of minimum protection to be afforded to the owner or operator of a motor vehicle within the state and that while the legislature has permitted enhancement of that minimum, the statute does not permit a diminution of that protection.

270 Pa.Superior Ct. at 333-34, 411 A.2d at 553-54 (emphasis in original). In Michael v. The Aetna Casualty and Surety Company, 6 D. & C.3d 691 (Philadelphia Co.1978), aff'd, 272 Pa.Superior Ct. 622, 422 A.2d 699 (1979), the insured was driving a city-owned vehicle in his capacity as a police officer when he was struck by an uninsured vehicle. The court allowed the injured officer to stack uninsured motorist benefits for his two personally-owned automobiles, stating: “The legislative intent in enacting the uninsured motorists law ... requires a liberal construction of the statute, and a pronounced propensity ... to find coverage unless equally strong legal or equitable considerations to the contrary are present.” Id. at 694, quoting Sands v. Granite Mutual Insurance Company, 232 Pa.Superior Ct. 70, 80, 331 A.2d 711, 716 (1974). In Marchese v. Aetna Casualty and Surety Company, 284 Pa.Superior Ct. 579, 426 A.2d 646 (1981), an automobile dealer’s employee was driving a dealer-owned vehicle with license plates assigned to him by the dealer when he was injured in a collision with an uninsured vehicle. The “garage” policy of insurance issued to the dealer covered 20 “dealers plates” owned by the dealer who paid 20 premiums for uninsured motorist coverages. In allowing the employee to stack uninsured motorist coverage for the 20 plates even though he did not pay the premiums and was not a named insured, this Court found that: (1) it was definitely provided in the policy that the employee was one of the persons to whom a dealer’s plate would be issued for use on a vehicle owned by his employer; and (2) in light of Sones and Michael, payment of the premium by the injured party was not a “condition precedent to recovery in all cases”. Id., 284 Pa.Superior Ct. at 585, 426 A.2d at 649. Recently, our Supreme Court conclusively decided the issue in Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), aff'g in part and rev’g in part 312 Pa.Superior Ct. 549, 459 A.2d 358 (1983). In Utica, the decedent was operating his employer’s automobile when he was involved in a minor traffic accident with another vehicle. A police officer arrived at the scene and the decedent was standing beside the police car when he was struck and killed by the uninsured vehicle. Under the Utica policy which covered 15 of the employers’ vehicles, the decedent could be considered an insured only if he was “occupying” the insured vehicle. The Supreme Court held that “when a person is engaged in the lawful use of an insured vehicle, he will be considered to be ‘occupying’ that vehicle within the meaning of the policy, provided he can meet [certain, specified] criteria[.]” 504 Pa. at 336, 473 A.2d at 1009. The Utica Court then held that, although the decedent was “occupying” the insured vehicle at the time of the accident and hence was an insured under the Utica policy, he could not stack coverages because he was not a specifically intended beneficiary of the insurance policy. Id., 504 Pa. at 337-340, 473 A.2d at 1010-11. The Court distinguished between the three classes of insureds contained in most uninsured motorist policies: (1) “class one” includes “the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either”; (2) “class two” includes “any other person while occupying an insured highway vehicle”; and (3) “class three” includes “any person with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under [(1)] or [(2)] above.” Id., 504 Pa. at 338, 473 A.2d at 1010. In holding that “class two” insureds could not stack, the Court reasoned that:

Since the decedent here asserted nothing more than “class two” coverage, his entitlement arose from his temporary status as an occupant, rather than from his being a specifically intended beneficiary of the insurance policy. Therefore there is no basis upon which to allow his estate to stack the coverages applicable to the other vehicles, and his recovery under the Utica policy is limited to the 15,000 dollar coverage applicable to the vehicle he was operating.

Id., 504 Pa. at 339, 473 A.2d at 1011 (footnote omitted). Therefore, the Utica Court held that the decedent’s estate could not stack uninsured motorist coverages under the Utica policy covering the employer’s vehicles.

The Utica Court, however, also held that the decedent’s estate was entitled to cumulate coverages under the Aetna policy which was carried by the decedent’s father. That policy covered three vehicles not involved in the accident and designated the decedent as the driver of one of the insured automobiles. The Aetna policy included in its “class one” coverage “the named insured and any relative”. The Court noted that the decedent was the son of the named insured and resided in the latter’s household. In allowing the decedent’s estate to stack uninsured motorist coverages under the Aetna policy, the Court rejected Aet-na’s argument that the decedent did not fall within the first criterion of Williams, i.e. that he be a named insured who has paid the premiums, stating:

Contrary to the assumption of Aetna, the criteria set out in Williams are not necessarily applicable to all claimants, in that they are not absolute conditions precedent to recovery in all cases. The Court in Williams merely defined one group of persons who were entitled to stack coverages, and nothing therein precludes us from extending the right to stack coverages to all persons within the “class one” category of “insureds”. We believe that such an extension is consistent with our decisions in Harleysville, supra., and Williams, supra.; and that it comports with our decision above to condition a claimants’ entitlement to stack on his status as a specifically intended beneficiary of the policy.

Id., 504 Pa. at 340, 473 A.2d at 1011.

It follows from the above cases that appellee cannot be precluded from stacking simply because the decedent was not a named insured in the policy and did not pay any of the premiums. Moreover, Utica is dispositive of the instant case. Under part D of the endorsement for uninsured motorists insurance in the instant Harleysville policy, persons insured include:

1. You or any family member.
2. Anyone else occupying a covered auto or temporary substitute for a covered auto.
3. Anyone for damages he is entitled to recover because of bodily injury sustained by another insured.

(Emphasis added). Part A defines “Family member” as “a person related to you by blood, marriage or adoption who is a resident of your household including a ward or foster child.” Here, the decedent was James Rosato’s daughter and resided in his household. We note that, like the Aetna policy in Utica which included in its “class one” coverage “the named insured and any relative”, the Harleysville policy in the instant case also has a category of insureds corresponding to “class one” classification, which contains relatives residing in the household of the named insured. Therefore, appellee’s decedent, being a “class one” insured, was a specifically intended beneficiary of the Harleysville policy issued to her father, even though she was not a named insured or premium-payor, and appellee should be allowed to cumulate uninsured motorist coverages. The fact that the decedent was not occupying a vehicle covered under appellant’s policy at the time of the accident is not determinative. See Utica Mutual Insurance Company v. Contrisciane, supra; Michael v. The Aetna Casualty and Surety Company, supra.

Accordingly, we affirm the order of the court below confirming the arbitration award.

Affirmed.

      . The decision of the Court of Common Pleas of Philadelphia County that Rosato’s estate could not stack benefits under Devon Honda’s uninsured motorist policy with Providence Washington Insurance Company was the subject of an appeal to this Court at No. 1583 Philadelphia 1982. On appeal, we affirmed the order of the lower court limiting appellant to the minimum coverage. Providence Washington Insurance Company v. Rosato, 328 Pa.Superior Ct. 290, 476 A.2d 1334 (1984).

      . Because the question of cumulative coverages is a question of law, the lower court had the power to hear the petition to modify or vacate the arbitration award and the issue is properly before us on appeal. See Novoseller v. Royal Globe Insurance Company, 317 Pa.Superior Ct. 217, 221, 463 A.2d 1163, 1165 (1983); Davis v. Government Employees Insurance Company, 296 Pa.Superior Ct. 198, 202, 442 A.2d 727, 729 (1982).

      . Appellant also contends that the decedent was not a person protected by the Uninsured Motorist Act, see 40 P.S. § 2000(a), because she was not included within the definition of an “insured” under the primary liability portion of the Harleysville policy. We find this contention meritless. In part IV of the policy, persons insured under the liability insurance portion must have been using a “covered auto”. The uninsured motorists insurance portion of the policy, however, expressly states that "THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY." The endorsement provides that persons insured would include “any family member”. The decedent clearly meets that criterion.