author: ROWLEY, Judge:

text:
    494 A.2d 1119
    David R. VAN NORMAN and Mary Ellen Van Norman, his wife, Appellants, v. Walter JONES, Appellee. Walter JONES v. David R. VAN NORMAN and Mary Ellen Van Norman, his wife, and First Valley Bank. Appeal of David VAN NORMAN and Mary Ellen Van Norman, his wife. Walter JONES, Appellant, v. David R. VAN NORMAN and Mary Ellen Van Norman, his wife, and First Valley Bank.
    Superior Court of Pennsylvania.
    Argued March 6, 1985.
    Filed June 14, 1985.

      Ronold J. Karasek, Bangor, for appellants (at 314 and 315) and appellees (at 384).
    Peter S. Steinberger, Allentown, for appellant (at 384) and appellee (at 314 and 315).

      Michael A. Filingo, Bangor, for First Valley, appellee.
    Before ROWLEY, WATKINS and GEISZ, JJ.

       Judge John A. Geisz, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OPINION OF THE COURT

ROWLEY, Judge:

These three appeals arise from two separate actions instituted in the trial court: 1) an action for wrongful appropriation of four checks brought by Walter Jones against David Van Norman (Jones’ former employee), Mary Ellen Van Norman (David’s wife), and the First Valley Bank, wherein the Van Normans counterclaimed for sums owed by Jones to David Van Norman on sixteen specific job contracts; and 2) a subsequent action in equity for a full and complete accounting brought by David and Mary Ellen Van Norman against Walter Jones.

In the action for wrongful appropriation of funds, the trial court entered a non-jury verdict in favor of Jones against the Van Normans only, in the sum of $6,000.00. The Van Normans appealed from the Judgment entered on the verdict following the dismissal of all exceptions filed by the parties (No. 315 Philadelphia, 1984) and Walter Jones filed a cross appeal (No. 384 Philadelphia, 1984).

In the equity suit, the trial court sustained Walter Jones’ preliminary objections to the Van Normans’ complaint, dismissed the complaint with prejudice, and Judgment was entered in favor of Jones. The Van Normans have also appealed from that determination (No. 314 Philadelphia, 1984).

Upon a thorough review of the record herein, we reverse the Judgment entered in the wrongful appropriation action and remand the case for a new trial. The Judgment entered on the trial court’s Order dismissing the complaint in equity filed by the Van Normans is affirmed.

WRONGFUL APPROPRIATION ACTION APPEALS NOS. 315 AND 384 PHILADELPHIA, 1984

The evidence presented at the non-jury trial in the wrongful appropriation action reveals the following facts. David Van Norman began working for Walter Jones in his boiler sales, service and installation business sometime in 1977. In late 1978, or early 1979, Jones and Van Norman agreed to a method of payment whereby Van Norman would receive 50% of the net profit on each customer contract and reimbursement for expenses. Since Jones and Van Norman traveled frequently to their work, Walter Jones gave Mary Ellen Van Norman (David’s wife), deposit slips so that she could deposit customer payment checks sent to her in Walter Jones’ New York bank account at Manufacturers Hanover Bank. Mrs. Van Norman was authorized by Jones to endorse these checks with his name for deposit only into the New York bank account.

During the period from May 1979 through December 1980, Mrs. Van Norman received four customer checks payable to Walter Jones which she endorsed by signing Walter Jones’ name and her name, or her husband’s name. Instead of being deposited in Walter Jones’ New York bank account, however, the checks were either deposited into the Van Normans’ personal account at First Valley Bank in Pennsylvania or cashed by First Valley Bank, with part of the proceeds paid in cash to Mrs. Van Norman and part of the proceeds deposited in the Van Normans’ personal account. In late 1980, Walter Jones drew several checks on his New York checking account which were returned for insufficient funds. Jones then contacted several customers whom he thought had paid him and they sent him copies of payment checks that they had forwarded to Mrs. Van Norman. Upon learning that the checks were processed through a bank in Pennsylvania rather than Manufacturers Hanover Bank in New York, Jones contacted his attorney.

On February 25, 1982, Walter Jones filed a complaint in assumpsit and trespass against the Van Normans and First Valley Bank for conversion of funds wherein he sought to recover the proceeds of the four checks which totaled $10,878.58. Jones alleged that the Van Normans were not authorized to receive payment on the checks from First Valley Bank and that Mrs. Van Norman’s endorsement on the checks to achieve that purpose was a forgery.

The Van Normans filed an Answer to the complaint containing New Matter wherein they alleged that Mrs. Van Norman was authorized to endorse Walter Jones’ name on customer checks made payable to him and to either deposit or cash those checks as directed by Walter Jones. The Van Normans’ Answer included a counterclaim against Walter Jones for payments and expenses due David Van Norman pursuant to his employment contract with Jones. The counterclaim averred that David Van Norman was owed $47,-160.57 in past-due profits on sixteen separate customer contracts and for a vehicle purchased by David Van Norman which was necessary for his work.

First Valley Bank’s Answer to Walter Jones’ complaint included New Matter in the form of the Joinder of the Van Normans as additional defendants. See Pa.R.C.P. 2252(d). First Valley Bank averred that in the event it was determined that the Van Normans were not authorized to endorse the four checks made payable to Walter Jones, the Van Normans were solely liable to Walter Jones or liable over to the First Valley Bank for the proceeds thereof.

The case was scheduled for hearing non-jury on January 17, 1983. On February 2, 1983, the trial court entered an adjudication consisting of findings of fact, conclusions of law and a verdict in favor of Walter Jones against the Van Normans only in the sum of $6,000.00. The trial court held that Mrs. Van Norman was authorized to endorse the checks with Walter Jones’ name, but that she wrongfully appropriated the four checks when she placed them in her personal account rather than Walter Jones’ New York bank account. Thus, the court determined that the Van Normans were liable to Walter Jones for the proceeds of the four checks. Nonetheless, in resolving the Van Normans’ counterclaim, the court allowed a credit against the amount of the checks, for money owed David Van Norman from Walter Jones’ business. The court declined to enter a verdict against First Valley Bank in favor of Walter Jones, reasoning that because Mrs. Van Norman was authorized to sign Walter Jones’ name in the first instance, her actions did not constitute a forgery and First Valley Bank was entitled to rely on her endorsements in accepting and cashing or depositing the checks.

Following entry of the court’s adjudication, exceptions were filed by the Van Normans and by Walter Jones. By Opinion and Order of the court en banc dated January 3, 1984, all exceptions were denied and dismissed. Judgment was entered on the verdict on January 9, 1984 and appeals were filed by the Van Normans and by Walter Jones.

On appeal, Walter Jones argues that the trial court erred in finding that the Bank was not liable for making payment on Mrs. Van Norman’s unauthorized endorsement. Because we find that this claim of error has merit and a new trial is warranted, we need not address the other issues raised by appellants.

Walter Jones argues that Mrs. Van Norman’s authority to endorse checks with his name was limited to endorsing those checks for deposit only in his New York account. Jones claims that Mrs. Van Norman was not authorized to affix his name to customer checks made payable to him and to deposit them with First Valley Bank or to cash them at that Bank. Thus, Jones claims that the First Valley Bank is liable for conversion for making payment on a forged endorsement. Jones’ theory of liability is predicated on Section 3-419(a) of the Uniform Commercial Code which provides:

(a) Acts constituting conversion. — An instrument is converted when:
(1) a drawee to whom it is delivered for acceptance refuses to return it on demand;
(2) any person to whom it is delivered for payment refuses on demand either to pay or to return it; or
(3) it is paid on a forged indorsement.

13 Pa.Cons.Stat. § 3419. In light of our Court’s recent decision in Levy v. First Pennsylvania Bank, 338 Pa.Super. 73, 487 A.2d 857 (1985) (petition for allowance of appeal pending), we find appellant’s contention to be persuasive.

In Levy, an attorney was given limited authorization by his clients to endorse checks made payable to them for deposit into the clients’ accounts at Girard Bank and Industrial Valley Bank. Thereafter, the attorney received three checks from his clients’ broker, which he deposited in his own personal bank account at First Pennsylvania Bank. He accomplished this by signing the back of the checks with the names of his clients’ business enterprises and his own account number. In an action against the First Pennsylvania Bank for conversion, the clients were awarded $222,-776.87 and the Bank appealed from the judgment entered following the dismissal of its exceptions by the trial court. In affirming the judgment, this Court determined that the trial court properly found that the attorney’s authority to endorse checks was limited to endorsing them for deposit into his clients’ accounts at two specified banks. Accordingly, this Court agreed that the attorney was not authorized to endorse the checks as he did and deposit them in his own account. Nonetheless, the question remained whether an unauthorized endorsement was the same as a forged instrument under 13 Pa.Cons.Stat. § 3419. The Court stated:

Although no court in the Commonwealth has held on this point, to our knowledge, other courts have held that “forgery” under UCC § 3-419 includes ‘unauthorized signature.’ We conclude that an unauthorized signature is the same as a forgery for purposes of an action for conversion under 13 Pa.C.S. § 3419. The trial court properly found the bank liable for paying the checks to Robinson [the attorney]. (Footnote omitted.)

Id, 338 Pa.Superior Ct. at 79, 487 A.2d 861.

We find that the holding in Levy is controlling with regard to the Bank’s liability in the case now before us. In the instant case, the trial court found that Mrs. Van Norman was authorized to accept checks made payable to Walter Jones, affix his name to the checks, and deposit them in his New York bank account. Because she was authorized to sign Jones’ name in the first instance, the trial court found that no forgery existed and that First Valley Bank was not liable for making payment on Mrs. Van Norman’s endorsement. The same theory was rejected in Levy v. First Pennsylvania Bank, 338 Pa.Super. at —, 487 A.2d at 860. Because Mrs. Van Norman was authorized to endorse checks with Jones’ name for one purpose does not mean that she had unlimited power to sign his name for other purposes. It is clear that Mrs. Van Norman’s authority to endorse Walter Jones’ name was limited to endorsing checks payable to Jones in order to deposit those checks into Jones’ New York bank account. Mrs. Van Norman did not have authority to endorse checks with Jones’ name in order to deposit those checks into her personal account at a different bank, or to cash those checks at any bank. Thus, her conduct in signing Jones’ name to achieve such a purpose was unauthorized. Under the holding in Levy, her unauthorized signature was the same as a forgery for purposes of an action for conversion instituted against First Pennsylvania Bank. Thus, on the facts of record in this case, First Valley Bank may have been liable for paying the checks to Mrs. Van Norman. Since the trial court found no liability on the part of the Bank, the question whether the Bank would be liable to Jones for the full amount of the proceeds of the checks or whether the Van Normans would be solely liable or liable over to the Bank were not litigated. Under these circumstances, we find that a new trial as to all parties must be granted in order to allow all issues raised in the pleadings to be properly and fairly decided.

We note that one of the errors alleged by the Van Normans on appeal from the Judgment entered is that the trial court improperly denied their request for a jury trial which was appended to a pre-trial conference memorandum. The court held that the Van Normans had waived their right to a trial by jury by failing to timely file their request in accordance with Pa.R.C.P. 1007.1. We note that our decision to reverse the Judgment entered and remand for a new trial is without prejudice to the right of the Van Normans to renew their request for a jury trial. See Hawley Bank v. Santini, 256 Pa.Super. 203, 389 A.2d 671 (1978).

The Judgment entered is reversed and the case is remanded for a new trial as to all parties.

EQUITY ACTION

APPEAL NO. 314 PHILADELPHIA, 1984

The Van Normans filed a complaint in equity on September 29, 1983, seeking: 1) to enjoin Walter Jones’ disposition of any goods or cash with respect to an alleged “partnership” between the parties which existed from sometime in 1977 through 1981; and 2) an account of all monies received by Walter Jones and payment of any monies due to David Van Norman as a result of the accounting. At the time the equity complaint was filed, the parties’ exceptions to the verdict in the wrongful appropriation action were pending.

Walter Jones filed preliminary objections to the complaint in equity under the caption “Demurrer”, wherein he claimed that the Van Normans were barred from bringing suit in equity by principles of res judicata, collateral estoppel, a prior pending action, and because the discovery proceedings in the wrongful appropriation action constituted a full accounting. The trial judge entered an Order dismissing the equity complaint on the same day that the parties’ exceptions to the verdict in the wrongful appropriation action were dismissed by the court en banc.

The trial court found no merit in the defenses of collateral estoppel and res judicata. Certainly these defenses are of no avail to Jones at this point, since we have granted a new trial in the wrongful appropriation action and, thus, there is no final determination in that case. Moreover, we point out that res judicata and collateral estoppel are affirmative defenses that should properly have been pled in a responsive pleading under New Matter, and not by way of preliminary objections. See Pa.R.C.P. 1030.

Nonetheless, the trial court sustained Walter Jones’ preliminary objections on the ground that a complete accounting had already been provided the Van Normans by virtue of the documentation obtained through discovery conducted in the action for wrongful appropriation of funds. Jones’ preliminary objection in this regard, in effect, constituted an assertion that a full, complete and adequate remedy at law existed in this case and that the Van Normans had been afforded that remedy. See Pa.R.C.P. 1509(c).

Appellants contend that they were not afforded a full and complete accounting through discovery in the wrongful appropriation action because the discovery was incomplete and it did not afford them with the relief they requested. We find that appellants are correct in their assertion that the documentation obtained through discovery was not the equivalent of a full and complete accounting. Nonetheless, we conclude that the facts pled in the equity complaint show that the Van Normans do have an adequate remedy at law and that a prior action regarding the same controversy is pending. Thus, we affirm the dismissal of the equity complaint.

In dismissing the equity complaint, the trial court held that Walter Jones had produced what he had in the way of “books” in the discovery proceedings in the prior action and that there was no aspect of the business which was “peculiarly within” the knowledge of Walter Jones since he and David Van Norman traveled the country fixing and installing boilers together. Thus, the court held that there was no need for a court ordered accounting as the Van Normans “could arrive at an accounting themselves,” (Trial Court Opinion, filed January 3, 1984 at p. 7). We disagree.

If indeed David Van Norman was a full partner in the boiler installation and repair business, he would be entitled to a full and formal account regarding the partnership affairs. 59 Pa.Cons.Stat. § 335 (Uniform Partnership Act). In the discovery proceedings in the wrongful appropriation action, Walter Jones produced bank statements from his business checking account, check stubs, and a breakdown of profits and expenses for the sixteen contracts listed in the Van Normans’ complaint. Jones may have provided all the business records in his possession that relate to the period of the parties’ working relationship, but that, in itself, did not provide the Van Normans with the relief they requested in their equity complaint. There was no reconciliation of all the documents provided, including a determination by the court of what, if anything, was due the Van Normans. Moreover, the Van Normans’ complaint in equity seeks not only payment of monies due as would be shown in a formal accounting, but also an injunction against Walter Jones barring disposition of any cash or assets of the business. Thus, the Van Normans were not afforded the relief they sought through the discovery in the prior action. Nonetheless, we find that the Van Normans do have an adequate remedy at law for the claim pled in their complaint.

Initially, we note that the Van Normans did not plead facts that would have necessarily entitled them to a formal accounting. The complaint avers that David Van Norman entered into an employment contract with Walter Jones whereby he would receive fifty percent of the profits of each job that was contracted plus expenses for services that he rendered. The complaint admits that the arrangement entered into by the parties was not a full partnership, but instead, a partnership “in regard to the method and amount of payment for the Husband-Plaintiff’s services.” (Paragraph # 4). A partnership relationship must be properly pled and established in order to give a partner the right to a formal account. See Barbet v. Ostovar, 273 Pa.Super. 256, 417 A.2d 636 (1979). It is clear that the receipt of a share of the profits of a business is not prima facie evidence of a partnership if such profits are received in payment as wages. 59 Pa.Cons.Stat. § 312. Thus, the complaint does not plainly state that David Van Norman was a partner in the boiler business.

The equity complaint does allege, however, that David Van Norman and Walter Jones entered into an oral employment contract. The remedy for loss suffered for breach of such an agreement would be a suit on the contract to recover monies due David Van Norman which were not paid to him by his employer during the life of the contract. Thus, an adequate remedy at law exists in the form of an action for breach of contract and equitable relief is not warranted. See Aughenbaugh v. North America Refractories Co., 426 Pa. 211, 231 A.2d 173 (1967).

Moreover, the Van Normans had already elected to pursue a remedy at law in the nature of a counterclaim filed in the action for wrongful appropriation of funds. In their counterclaim, they asserted that Walter Jones had breached the aforementioned employment contract by failing to pay David Van Norman monies due him on sixteen customer jobs and accounts and by failing to compensate him for a truck he purchased in order to perform his work for the business. A close reading of the counterclaim reveals that it alleges a claim at law, arising out of the same controversy and covering the same substantive issues involved in the equity complaint. In such a situation, transfer of the equity complaint to the law side, as directed in Pa.R.C.P. 1509(c), is unnecessary and the equity complaint may properly be dismissed. Redmond Finishing Co., Inc. v. Ginsburg, 301 Pa.Super. 51, 446 A.2d 1330 (1982); Mysh-ko v. Galanti, 453 Pa. 412, 309 A.2d 729 (1973).

The Van Normans argue that the equity complaint covers profits realized through customer contracts during the entire employment relationship, while the counterclaim involves profits derived only from sixteen customer accounts. Hence the Van Normans urge that the issues raised in the counterclaim are not the same as those raised in the complaint. We find this distinction to be unpersuasive. There is nothing in the record which indicates that David Van Norman did not receive the profits to which he was entitled on customer contracts other than the sixteen contracts listed in the counterclaim. See Herzog v. Witco Chemical Corp., 447 Pa. 202, 205, 290 A.2d 256 (1972). In addition, the language in the counterclaim indicates that the Van Normans sought all the unpaid profits due them for the duration of the employment contract. If there are other sums due David Van Norman pursuant to his employment contract on customer contracts that were not included in the counterclaim, the Van Normans’ remedy is to seek to amend the counterclaim, rather than to sue separately in equity.

Accordingly, the Judgment entered in the action at law is reversed and the case is remanded for a new trial.

The Final Decree entered in the equity action is affirmed.

Jurisdiction is relinquished.

      . We note that the trial court did not have the benefit of reviewing our decision in Levy v. First Pennsylvania Bank, supra, since it was not filed until January of 1985, almost one year after the determination of the court en banc in the instant case.

      . Forgery is not defined in the Uniform Commercial Code. Thus, in finding that forgery under UCC § 3-419 encompasses an unauthorized signature, the court took guidance from the definition of forgery provided in the Pennsylvania Crimes Code. Section 4101 provides:
      (a) Offense defined. — A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
      (1) alters any writing of another without his authority;
      (2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize the act, or to have been executed at a time or place or in a number sequence other than was in fact the case, or to be a copy of an original when no such original existed; or
      (3) utters any writing which he knows to be forged in a manner specified in paragraphs (1) or (2) of this subsection.
      18 Pa.Cons.Stat. § 4101. Levy v. First Pennsylvania Bank, 338 Pa.Super. at 79 n. 11, 487 A.2d at 861 n. 11.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    494 A.2d 1127
    CARLSON MINING COMPANY, Appellant, v. TITAN COAL COMPANY, INC., Energy Services, Charles Barletto, Robert L. Todd, Pete Mercurio and West Penn Power Company.
    Superior Court of Pennsylvania.
    Argued March 6, 1985.
    Filed June 14, 1985.

      Charles W. Garbett, Ellwood City, for appellant.
    John M. Silvestri, Pittsburgh, for appellees.
    Before OLSZEWSKI, HESTER and SHIOMOS , JJ.

       Judge Thomas N. Shiomos, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OLSZEWSKI, Judge:

In this case, Carlson Mining Company, appellant-plaintiff below, appeals the grant of a new trial to Charles Barletto, appellee-defendant below. Appellant argues that the court improperly based its grant of a new trial on grounds not preserved by. objection and brief; that the grounds are improper for the granting of a new trial; and that the trial court’s original error, if any, was rendered harmless.

The facts are these. Appellant agreed to sell coal on credit to Robert Todd, one. of the defendants in the original action. Appellant was not paid and subsequently, sued Appellee Charles Barletto, among others, claiming that his misrepresentations induced Appellant to extend credit when he knew or should have known that the purchaser would not pay.

At trial, counsel for Appellant asked Appellee Barletto whether he had ever been convicted of a crime. After objection and sidebar, the court allowed the question; the answer was that Barletto had been convicted two years earlier of conspiracy to transport stolen goods in interstate commerce. Subsequently the president of Appellant, when cross-examined, admitted to a conviction for armed robbery in 1963. The court cautioned the jury that these convictions could be considered only on the issue of witness credibility. The jury returned a verdict for Appellant for $68,000; Appellant had demanded $135,000 in its complaint.

On Appellee’s motion, the court granted a new trial, stating that allowing cross-examination of Barletto as to his conviction was error. There were no other reasons given for the grant.

Our standard of review for the grant of a new trial requires us to examine the reasoning of the court: absent manifest abuse of discretion or an error of law, we will not disturb the decision of the lower court. Giambra v. Aetna Casualty and Surety Co., 315 Pa.Super. 231, 461 A.2d 1256 (1983). Finding no manifest abuse of discretion, we turn to whether the court below committed an error of law.

An examination of the record shows counsel for Appellee did not properly preserve, on the record, any objection to the question other than that of prejudice. Therefore, if the court relied on a reason other than prejudice in awarding a new trial, it erred, since a court may only rule on questions preserved and presented to it by a litigant. Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981). The court relied on two reasons: failure of Appellant to document the finality of the conviction, and prejudice to Appellee exceeding probative value of the evidence. The court could not properly hold on the first issue. Our decision thus turns on whether the court’s decision that the evidence should have been excluded, based on prejudice to Appellee, is correct as a matter of law.

Impeachment by Prior Conviction

Evidence of proof of prior convictions to impeach witness veracity is a subset of character evidence generally. The underlying rationale for allowing impeachment by showing prior convictions is that a person who has demonstrated his contempt for social constraints by committing crimes is less reluctant to lie under oath than persons who have not been convicted of committing crimes. Pennsylvania permits the use of prior convictions to impeach witness credibility in criminal cases. 42 Pa.C.S. Sec. 5918 (Purdon’s 1982). In Pennsylvania we have no rule on whether the credibility of a witness in a civil case may be impeached by proof of prior convictions.

It has been held, however, that evidence of the good character of a witness is not admissible in civil cases unless a witness’ character has been attacked. Greenberg v. Aetna Insurance co., 427 Pa. 494, 235 A.2d 582 (1967). That decision implies that evidence of a witness’ bad character may be introduced. As impeachment by prior convictions is a subset of character evidence generally, we see no reason under our cases why prior convictions may not be used in civil cases to impeach witness credibility.

The question remains as to when we should allow the use of convictions to impeach. The major concern in using criminal convictions to impeach credibility is that the jury will misapprehend the use for which such evidence is advanced. There is prejudice inherent in permitting prior convictions to be used to impeach the credibility of the criminal defendant:

The most troublesome aspect of impeachment by evidence of conviction if presented when the witness is himself the accused in a criminal case____ There is apparent a growing uneasiness that impeachment in this form not only casts doubt upon his credibility “but may also result in casting such an atmosphere of aspersion and disrepute about the defendant as to convince the jury that he is a habitual lawbreaker who should be punished and confined for the general good of the community.” Richards v. United States, 89 U.S.App.D.C. 354, 357, 192 F.2d 602, 605 (1951).

Advisory Committee’s Note to 1971 Draft of the Federal Rules of Evidence, 10 Moore’s Federal Practice Sec. 609.01 (1982).

Our Supreme Court has laid down guidelines for criminal proceedings, but has never addressed the issue in a civil case. However, the federal courts have.

The federal courts apparently use the same standard in civil cases as they do in criminal cases. For example, in United States v. Mahone, 537 F.2d 922 (7th Cir.1976), the Court of Appeals for the Seventh Circuit stated the rules for admitting prior convictions in a criminal case were:

(1) The impeachment value of the prior crime.
(2) The point in time of the conviction and the witness’ subsequent history.
(3) The similarity between the past crime and the charged crime.
(4) The importance of the defendant’s testimony.
(5) The centrality of the credibility issue.

The Court of Appeals for the Fifth Circuit, in United States v. Preston, 608 F.2d 626 (5th Cir.1979), cited the Mahone factors and added, “The danger that a jury will think, 'once a criminal, always a criminal’ makes it important that the Trial Judge focus on prejudice as well as probative value.” 608 F.2d at 639.

The latest civil case in the federal courts setting forth the standards to be used is Lenard v. Argento, 699 F.2d 874 (7th Cir.1983). In this civil rights case, the Court of Appeals for the Seventh Circuit cited Mahone and stated, “The determination whether the evidence of a prior conviction is more probative than prejudicial is within the trial court’s discretion.” 699 F.2d at 895. The court disallowed the use of a conviction to impeach the plaintiff-witness, because the conviction was 24 years old, occurred when the witness was a juvenile, and was unrelated to his truth-telling capabilities or the events in the action. Id. at 895.

Drawing from the federal cases, we conclude that the same standard should be used in a civil action to determine whether a conviction should be used to impeach as in a criminal action. Accordingly, the court below correctly used the test enunciated in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). We will not disturb its determination that, under the Bighum-Roots factors, the evidence was more prejudicial than probative.

The order granting a new trial is affirmed.

      . Prior to trial, verdicts were entered against defendants Titan Coal, Robert Todd and Pete Mercurio. Trial proceeded against Energy Services, Charles Barletto and West Penn Power.

      . The theories asserted include negligent misrepresentation of a material fact, innocent misrepresentation of a material fact, and contract.
      A nonsuit was entered on the first two theories.

      . There were apparently two reasons why the court found error: the finality of the conviction was not properly documented, and the information was more prejudicial than probative. Lower court op. at 3, 5-6

      . McCormick on Evidence 549-64 (Cleary 3d ed. 1984).

      . See Uviller, Evidence of Character to Prove Conduct; Illusion, Elog-ie and Injustice in the Courtroom, 130 U.Pa.L.Rev. 845, 866 (1982). Wé express no opinion on whether this presumption has merit.

      . We note that Federal Rule of Evidence 608 permits the introduction of character evidence:
      Rule 608. Evidence of Character and Conduct of Witness.
      (a) Opinion and reputation evidence of character. — The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
      (b) Specific instances of conduct. — Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

        The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.

      . We note that the Federal Rules of Evidence do not differentiate between civil and criminal cases on the use of evidence of this nature. F.R.E. 609 permits the use of prior criminal convictions:
      Rule 609. Impeachment by Evidence of Conviction of Crime (a) General rule. — For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant or (2) involved dishonesty or false statement, regardless of the punishment____
      For various civil cases allowing the use of criminal convictions to impeach, see Lenard v. Argento, 699 F.2d 874 (7th Cir.1983); Shows v. M/V Red Eagle, 695 F.2d 114 (5th Cir.1983); Carlsen v. Javurek, 526 F.2d 202 (8th Cir.1975); and Abbott Laboratories, Ross Laboratories Division, v. NLRB, 540 F.2d 662 (4th Cir.1976).

      . In Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), the United States Court of Appeals for the District of Columbia held that the trial court should exercise discretion in permitting the use of prior convictions:
      In exercising discretion in this respect, a number of factors might be relevant, such as the nature of the prior crimes, the length of the criminal record, the age and circumstances of the defendant, and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction.

        Id. at 157, 348 F.2d at 769.
      The approach was modified somewhat in Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967):
      One important consideration is what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. Even though a judge might find that prior convictions are relevant to credibility and the risk of prejudice to the defendant does not warrant their exclusion, he may nevertheless conclude that it is more important that the jury have the benefit of the defendant’s version of the case than to have the defendant remain silent out of fear of impeachment.

        Id. at 347-48, 383 F.2d at 940-41. Pennsylvania courts go by the Luck and Gordon courts’ analysis; see Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). The federal judicial system has modified its rule since Luck and Gordon to permit always the use of crimes of dishonesty of falsehood (crimen falsi), but leaves the matter to the trial court’s discretion where the crime is serious, but does not involve dishonesty or falsehood, F.R.E. 609(a). The rule as promulgated incorporates part of the Luck court’s approach. Advisory Committee’s Note to 1971 Draft, 10 Moore Federal Practice Sec. 609.01, 1.-5. (1982). The federal approach on matters not crimen falsi is very similar to the process used by Pennsylvania courts in determining whether to use a conviction. We first require a determination of whether the conviction is for crimen falsi, and, if it is, use the Luck and Gordon factors in weighing probative value against prejudicial effect. Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).

      . Appellant’s third argument, that the admission of the plaintiff’s prior conviction made the admission of the defendant’s conviction harmless, is meritless. Contrary to his belief, two wrongs do not make a right.


author: BECK, Judge:

text:
    494 A.2d 1131
    COMMONWEALTH of Pennsylvania v. William HOOVER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1985.
    Filed June 14, 1985.

      Christopher J. Youngs, Meadville, for appellant.
    John F. Spataro, Assistant District Attorney, Meadville, for Commonwealth, appellee.

      Before BECK, POPOVICH and HANDLER , JJ.

       Judge Earl Handler, Senior Judge of the Court of Common Pleas of Indiana County, is sitting by designation.

   BECK, Judge:

Appellant was convicted under section 1543 of the Vehicle Code, 75 Pa.C.S. § 1543, of driving while his license was suspended. Because the license suspension resulted from a conviction for driving under the influence of alcohol (“DUI”), appellant was sentenced to a 90-day prison term and fine of $1000 pursuant to subsection (b) of § 1543, 75 Pa.C.S. § 1543(b), which reads as follows:

(b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

The sole issue raised on appeal is the constitutionality of § 1543(b). For the reasons stated below we affirm.

Appellant argues that § 1543(b) violates the equal protection clause by making an improper classification of “suspension offenders” and imposing a much harsher penalty on DUI-related suspension offenders than others, with no rational basis for the distinction. He further argues that the mandatory sentence imposed under § 1543(b) constitutes cruel and unusual punishment, that it violates the separation of powers doctrine by taking away the court’s sentencing discretion, and that the mandatory fine violates due process. Finally, he argues that the statute should not be applied where' the underlying DUI conviction took place before the January 14, 1983 effective date of the “New Drunk Driving Law,” Act of December 15, 1982, P.L. 1268, No. 289, §§ 9-11, 75 Pa.C.S. §§ 3731, 3732, 3735. In this context he contends that such application “denies him due process of law by retroactively increasing the legal consequences of his prior guilty plea to driving while intoxicated.”

Section 1543(b) was enacted in coordination with the New Drunk Driving Law as part of the legislature’s broad response to the serious problem of intoxicated drivers. The economic losses, social disruptions and personal tragedies resulting from drunk driving are well documented and the subject of increasing public awareness. See Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983).

Appellant’s constitutional challenges to § 1543(b) are without merit for the same reasons that similar constitutional attacks on the New Drunk Driving Law itself have failed. Hoover’s equal protection, separation of powers, and cruel and unusual punishment arguments are essentially indistinguishable from those advanced against the mandatory sentencing provisions of 75 Pa.C.S. §§ 3731 and 3735 in Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985). In Hernandez this court held that the mandatory sentences prescribed by § 3731 did not violate the separation of powers doctrine because the enactment of statutes defining criminal conduct and imposing certain penalties for that conduct is a proper exercise of legislative power. On the cruel and unusual punishment issue, the Hernandez court found that the mandatory sentences for drunk driving comported with current societal standards of decency and held that “[t]he statutes do not impose a penalty so out of proportion to the crimes as to shock a balanced sense of justice.” 339 Pa.Super. at 41, 488 A.2d at 298. Finally, on the equal protection question, we held in Hernandez that the legislative classification need only meet the rational relationship test, because no “suspect class” was implicated, and the classification was clearly rationally related to the legitimate state interest in highway safety.

We agree with the reasoning of Hernandez and believe it is equally applicable to the corresponding arguments raised by appellant with respect to § 1543(b). Section 1543(b) does not violate the separation of powers doctrine because the legislature was acting within its recognized power to delineate the penalties for criminal conduct. The sentences imposed under § 1543(b) are not disproportionate to the gravity of the offense and are not repugnant to societal standards of justice. Finally, section 1543(b) is rationally related to the same state interests which motivated the legislature to enact the statutes at issue in Hernandez. The imposition of mandatory license suspensions for drunk driving reflects a proper legislative determination of the seriousness of the drunk driving problem, and § 1543(b) is rationally related to the legitimate goal of keeping those convicted drunk drivers off the roads during the period of their suspensions.

Appellant makes an additional equal protection claim not directly addressed in Hernandez. He argues that the distinction drawn in § 1543(b) between different classes of “suspension offenders” is constitutionally infirm because other violators whose suspensions or revocations stemmed from serious offenses, such as homicide by vehicle or racing on the highway, are not subject to the stiffer penalties of § 1543(b), and there is an equally persuasive rationale for imposing additional penalties to discourage such persons from driving. This argument fails because the equal protection clause does not force the legislature to choose between attacking all aspects of a problem or none at all. Dandridge v. Williams, 397 U.S. 471, 486-87, 90 S.Ct. 1153, 1162-63, 25 L.Ed.2d 491 (1970). We have determined that the legislature had a proper rational basis for being especially concerned about drunk drivers violating the conditions of their license suspensions and for imposing special sanctions designed to deter such suspension violations. The fact that the legislature could have made a similar judgment with respect to other classes of hazardous motorists does not render invalid the actions it chose to take.

Appellant further contends that § 1543(b) may not constitutionally apply to cases where the underlying DUI conviction resulting in a suspension antedated the January 14, 1983 effective date of the New Drunk Driving Law. Appellant frames his argument in due process terms, urging that the imposition of the sentence prescribed by § 1543(b) denies him due process by retroactively increasing the consequences of his pre-January 14, 1983 guilty plea to DUI.

Although appellant does not refer to § 1543 as an impermissible ex post facto law, his argument is in substance a claim that § 1543(b) changes the punishment for his prior DUI offense, making it greater than it was when the offense was committed. This is one of the criteria for determining whether a statute violates the prohibition against ex post facto laws. See Commonwealth v. Hoetzel, 284 Pa.Super. 623, 426 A.2d 669 (1981). This court rejected a claim that the recidivist section of the New Drunk Driving Law, 75 Pa.C.S. § 3731(e)(1), was an ex post facto law in Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962 (1984). We held in Grady that the amendment of § 3731 imposing stiffer sentences for second and subsequent DUI offenders did not impermissibly increase the sentence imposed for the prior conviction antedating the effective date of the amendment. Rather, the amendment simply defines the penalty for the subsequent offense based on the defendant’s prior record.

As the Grady court correctly noted, recidivist statutes have generally been upheld against ex post facto challenges. Appellant’s “due process” claim is identical in substance to the ex post facto claim in Grady despite the difference in language. Grady therefore controls and appellant’s argument is meritless. Section 1543(b) does not impose an additional punishment for the underlying DUI conviction. The fact that appellant’s DUI conviction followed a plea of guilty is irrelevant. Although a defendant must be informed before pleading guilty to a crime of the sentences which may be imposed for that crime, there is no requirement that the guilty plea colloquy include discussion of the penalties for subsequent offenses which the defendant may commit at some unspecified time in the future. When appellant chose to drive while under suspension, section 1543(b) was in effect and appellant knew or should have known what the statutory punishment would be for his offense. Therefore, appellant had adequate prior notice of the possible consequences of his conduct and cannot claim his due process rights have been violated.

Finally, appellant argues that the imposition of a mandatory $1000 fine regardless of the defendant’s ability to pay violates the due process clause. Appellant correctly notes that in Commonwealth v. Mead, 300 Pa.Super. 510, 446 A.2d 971 (1982), this court held that the sentencing court must inquire into the defendant’s ability to pay where the imposition and amount of a fine is discretionary, but reserved judgment on whether a sentencing court must inquire into a defendant’s ability to pay a “legislatively mandated fine.” Id., 300 Pa.Superior Ct. at 515 n. 3, 446 A.2d at 974 n. 3.

However, we do not read Mead as holding or even suggesting that we should find a statute unconstitutional merely because it imposes a mandatory fine. Rather, we believe the proper focus of our due process inquiry is on what procedural safeguards exist in the event a defendant is unable to pay a “legislatively mandated fine.” Appellant’s claim that section 1543(b) “rob[s him] of a fair procedure — indeed, any procedure — for determining how large a fine he is able to pay” (Appellant’s Brief at 21), is meritless in light of 75 Pa.C.S. § 6504, which provides that the court may order installment payments where the defendant demonstrates his inability to pay a fine imposed under the Vehicle Code. Moreover, it is clear that appellant cannot be imprisoned for nonpayment of the fine if he establishes he is unable to pay. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Commonwealth v. Farmer, 319 Pa.Super. 542, 466 A.2d 677 (1983); Commonwealth v. Schwartz, 275 Pa.Super. 112, 418 A.2d 637 (1980); see also Pa.Crim.P. 65. Because relief is available to appellant if he is unable to pay the $1000 fine, we hold that § 1543(b) does not deny appellant due process.

Judgment of sentence affirmed.

      . The penalty for driving under suspension in cases not covered by § 1543(b) is a fine of $200. 75 Pa.C.S. § 1543(a).

      . Section 6504 applies only to Vehicle Code offenses. We do not decide at this juncture what procedures should be followed in other cases involving “legislatively mandated fines.”


author: CERCONE, Judge:

text:
    494 A.2d 1135
    CITY OF PHILADELPHIA v. James WATKINS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1985.
    Filed June 14, 1985.

      Jeffrey P. Lowenthal, Philadelphia, for appellant.
    Before McEWEN, CERCONE and TROMMER , JJ.

       Judge Evelyn M. Trommer of the Court of Common Plea of Philadelphia County, Pennsylvania is sitting by designation.

   CERCONE, Judge:

This is a tax sale redemption case. Appeal is taken from the lower court’s order making appellant’s petition to redeem absolute upon payment to appellees, who had purchased the property at Sheriff’s Sale, of their expenses totaling $30,878.10 plus interest. The crux of appellant’s argument is that the lower court erred in finding that approximately $21,000.00 worth of expenses incurred by appellee in renovating and insuring the property constituted necessary expenses within the meaning of the redemption statute, 53 P.S. § 7293.

The record discloses the following pertinent facts. On June 6, 1983, appellant’s property, a residential dwelling located on Catherine Street in Philadelphia, was exposed for sale by the Sheriff of Philadelphia because of unpaid municipal taxes in the amount of $348.00 for the year 1979. Appellees purchased the property for $8,200.00. The Sheriff’s deed conveying the property to appellees was acknowledged on June 30, 1983.

On February 28, 1984, appellant filed a petition to redeem the property. Thereafter, appellees filed an answer and new matter which averred, in pertinent part, that appellant’s right to redeem be conditioned upon his payment of their bid price of $8,200.00, and additional alleged necessary expenses they had incurred in connection with their purchase of the property. Appellant’s answer to appellees’ new matter denied that the additional expenses were necessary. The case was then set down for a hearing before the Honorable Alfred J. Di Bona, Jr., on April 26, 1984. After taking testimony and exhibits, Judge Di Bona, on May 4, 1984, issued a decree which made appellant’s petition to redeem absolute, conditioned upon his payment to appellees of their expenses in the following amounts:

(a) $8,200.00, representing the amount bid at Sheriff’s Sale on June 6, 1983, the date of purchase;
(b) $20,688.30, representing the sum respondents paid for renovation of the property from July 6, 1983;
(c) $904.50, representing cost of carpeting paid by respondents for installation in the property, paid on October 29, 1983;
(d) $402.80, representing real estate taxes on the property paid by respondents on 1/20/84;
(e) $682.50 representing casualty and liability insurance on the property paid for by the respondents;
$170.00 paid on 6/15/83.
$267.50 paid on 9/19/83.
$245.00 paid on 12/6/83.
plus interest at the rate of ten per cent per annum from the respective date of each of the above payments.
This appeal followed.

The statute in question, 53 P.S. § 7293(a), provides in relevant part:

(a) The owner of any property sold under a tax or municipal claim, or his assignees, or any party whose lien or estate has been discharged thereby, may, except as provided in subsection (c) of this section, redeem the same at any time within one year from the date of the acknowledgment of the sheriff’s deed therefor, upon payment of the amount bid at such sale; the cost of drawing, acknowledging, and recording the sheriff’s deed; the amount of all taxes and municipal claims, whether not entered as liens, if actually paid; the principal and interest of estates and encumbrances, not discharged by the sale and actually paid; the insurance upon the property, and other charges and necessary expenses of the property, actually paid, less rents or other income therefrom, and a sum equal to interest at the rate of ten per centum per annum thereon, from the time of each of such payments.
(Emphasis added).

The principal issue in the case at bar is whether the costs incurred by appellees for renovations, carpeting, and casualty and liability insurance, fall within the definition of “other charges and necessary expenses.” Appellant maintains that only those repairs which are made to preserve the property from damage or deterioration can be deemed necessary expenses. Appellees, however, argue that their expenses were necessary because the property had deteriorated to the point where it was uninhabitable and unsafe without extensive repairs. Thus the issue is reduced to whether expenses incurred for habitability purposes are reimbursable under the statute. We believe that reasonable expenses so incurred are recoverable.

In urging a contrary result, appellant cites the case of Philadelphia v. Rutherford, 163 Pa.Super. 476, 62 A.2d 122 (1948). In that case, which was affirmed per curiam on the basis of the trial judge’s opinion, a distinction was drawn between necessary expenses and additions or improvements to the property. The court first determined that title insurance on the property was not a necessary expense as it was obtained by the tax sale purchaser merely for peace of mind. More specifically, it was stated that:

With respect to the large amount of money the purchaser put into the property to make it profitable to himself, such expenditures are, we think, entirely within the category of improvements, as distinguished from necessary expenses, and as to which he is not entitled to reimbursement or redemption.
The purchaser bought the property with full knowledge of the right of redemption in the debtor and his assignee, and, therefore, took the risk of not being able to demand of the redemptor such expenditures as were not necessary to keep it in the condition in which it was bought. If this were not the rule, the door would be opened to improvements, whether they be small or extensive, which the purchaser might choose to make in the hope the property would not be redeemed. Additions to a property, such as the installation of bathrooms, plumbing fixtures and an electric lighting system, made in order that the property might be rented profitably, are not maintenance items, but improvements, and such items are, we think, clearly not recoverable from redemptor either under the Act or within the spirit and purpose of such laws.

Id., 163 Pa.Superior Ct. at 477-78, 62 A.2d at 122-23.

At first blush, appellant’s reliance upon Rutherford would seem well founded. We find it distinguishable, however, for several reasons.

In Rutherford there is no indication as to the nature of the property or its condition at the time it was purchased at the tax sale. Indeed we do not know whether the premises there were ever intended or used for habitation. Given the fact that the purchaser added bathrooms, plumbing fixtures and an electric lighting system so as to rent the property profitably, we may reasonably infer that the property was not a residential dwelling. By contrast, in the case at bar, we are concerned with a residential dwelling that had these bare necessities, but due to fire and neglect had fallen into such a deplorable condition that it had been unoccupied since 1981 and unfit for human habitation. Ap-pellee-husband testified that he and his wife purchased the property with the intent of residing there and that extensive repairs were necessary to preserve and maintain it. Indeed appellant while taking strenuous objection to the extent and cost of repairs performed by appellees, acknowledged that he would not have lived there without it first having been repaired. We need not recite in detail all the evidence presented at the hearing below. Appellees’ testimony and exhibits, including before and after pictures of the premises, established beyond a doubt that the property was unsafe and uninhabitable without extensive renovations. As Judge Di Bona stated: “The hearing revealed that the property had been damaged by fire and had deteriorated into an uninhabitable state. Evidence revealed that the buyer used the most cost-effective means of maintaining the property as a habitable dwelling and preventing its further deterioration. Therefore, we ruled that [appellant] must pay all of the items of renovations as necessary expenses.” Lower court opinion at 2.

Appellant argues, however, that because he had a statutory right to redeem the property within one year, appellees were “not entitled to do anything to the property not necessary to maintain it in the condition in which it was bought.” Appellant’s brief at 22. Appellant suggests that if this were not the law, “then tax sale purchasers can effectively destroy the right of redemption by simply making extravagant improvements, putting the cost of redemption out of the reach of a potential redemptor.” Id. at 12. Superficially, this argument appears meritorious. When viewed in context of the facts of this case, however, we find it disingenuous.

Appellant is a New Jersey resident who retained the property, which had been unoccupied since October of 1981, for rental purposes. Appellant neglected to pay municipal taxes on this property for the years of 1979, 1980, 1982, and 1983. Furthermore, appellant made no appreciable efforts to restore the property after the fire in 1981, and testified that he now intends to sell it to his niece. Appellees, by contrast, purchased the property so that they could use it as a retirement home. To that end, they engaged a contractor to repair the property in July of 1983. The work was completed in November of 1983, and appellees now reside there part-time until Mr. Scarborough retires from his employment with Cheyney State University in the near future. In short, the record discloses that appellant is an absentee landlord who, for all intents and purposes, ignored the property for several years and expressed no interest in it until becoming aware that appellees had significantly increased its value. Under these circumstances, we believe that the lower court properly rejected appellant’s arguments and correctly decided that the expenses incurred by appellees for renovations, carpeting and insurance, were necessary within the meaning of 53 P.S. § 7293.

The final alleged error we need address is appellant’s contention that it was error to admit into evidence, without authentication, appellees’ unitemized contract for work performed on the property, and copies of their receipts of payment for the work. We are unpersuaded.

Appellee-husband, a plumbing, heating and steel supervisor at Cheyney State University, testified as to each repair measure listed in the contract and the necessity for it. We think it manifest that Mr. Scarborough as a party to that contract, could properly testify as to its authenticity. See generally McCormick, McCormick on Evidence, § 219 et seq. (3rd Ed. 1984). Given Mr. Scarborough’s employment background, we believe he was qualified to testify as to these repairs. Appellees also produced receipts for every cost they incurred. In addition, appellant testified that he was capable of performing most home repair work, and took vigorous exception to the nature and cost of virtually every repair item. In sum, Judge Di Bona, who heard the testimony and provided appellant the opportunity to present contrary evidence, was convinced that appellees utilized the most cost effective measures for preserving the existing property. We find no reason to disturb that decision.

Order affirmed.

      . By contrast, the court concluded that expenditures made for compliance with the Fire Marshal’s orders were necessary.


author: HESTER, Judge:

text:
    494 A.2d 1139
    COMMONWEALTH of Pennsylvania v. PENN VALLEY RESORTS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed June 14, 1985.

      Jeffrey E. Leber, District Attorney, Coudersport, for Commonwealth, appellee.
    Before DEL SOLE, HESTER and FEENEY, JJ.

       Judge John M. Feeney, of the Court of Common Pleas of Allegheny County, Pennsylvania, is sitting by designation.

   HESTER, Judge:

On October 20, 1983, a jury convicted appellant, Penn Valley Resorts, Inc., of involuntary manslaughter, reckless endangerment and two counts of furnishing liquor or malt beverages to minors and visibly intoxicated persons. Post trial motions for a new trial and in arrest of judgment were denied, and appellant was fined $10,000.00 on the involuntary manslaughter conviction and $1.00 on each count of furnishing liquor or malt beverages to minors and visibly intoxicated persons. The charge of reckless endangerment was held to merge with involuntary manslaughter for purposes of sentencing. Appellant perfected this appeal from the judgment of sentence of January 19, 1984. The facts were as follows:

On May 8, 1981, 60 undergraduate students from the State University of New York at Alfred, New York (hereinafter “Alfred Tech”), a two-year agricultural and technical college, drove to Genesee, Potter County, Pennsylvania for a dinner dance at appellant’s resort facility. A student representative made arrangements with appellant’s president, Edwin Clancy, whereby appellant agreed to provide appropriate facilities, serve dinner and furnish an open bar. The students arranged for the music for dancing.

The deceased, William Edward Frazer, Jr., a 20-year-old Alfred Tech student, attended the dinner dance. He consumed sufficient alcohol during the affair to cause him to stagger, slur his speech, quickly alternate his moods and ultimately cause a fatal automobile accident.

At the end of the evening, several of Frazer’s friends, notably Phillip Knapp, tried extensively to prevent Frazer from driving his vehicle on the 45-minute return trip to Alfred Tech. Eventually, Knapp was alone with Frazer in the parking lot of appellant’s resort. Knapp held Frazer’s car keys and waited for the arrival of state police who were summoned by two of appellant’s patrons who lived nearby. At one point, Knapp had to wrestle and strike Frazer to resist his attempts to grab the car keys.

Before the police arrived, Frazer went to his car and told Knapp that he was looking for a gun to force Knapp to release the keys. Fearing for his safety, Knapp reluctantly released the keys, and Frazer drove away. Shortly thereafter, Mrs. Gavitt and her daughter, the aforementioned neighbors/patrons, returned and offered to drive Knapp back to the campus. En route some six and one-half miles from appellant’s facility, Knapp and the Gavitts came across Frazer’s overturned vehicle on Route 19 just across the state border into New York. Frazer’s body was trapped inside.

It was ascertained that Frazer had operated his vehicle into the opposite, southbound lane and struck a bridge abutment, causing said vehicle to flip and become airborne for 75 feet. It landed on its roof, slid 400 feet and came to rest in mid-highway. Frazer was dead at the scene, having suffered massive head injuries. A blood alcohol ánalysis disclosed blood alcohol content of .23. After investigation, appellant was charged with the four offenses.

Appellant’s first argument is that a corporation is not a “person” who can be found guilty of involuntary manslaughter or reckless endangerment. Additionally, appellant argues that without proof that Edwin Clancy’s actions were “condoned, sanctioned or recklessly disregarded by the Board of Directors,” it cannot be held criminally responsible for such actions.

Under § 307(a)(3) of the Crimes Code, appellant may be convicted of a crime committed by Edwin Clancy in his position as “a high managerial agent.” Section 307(a)(3) sets forth that:

A corporation may be convicted of the commission of an offense if.....the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment.

Section 307(a) does not limit those offenses in the Crimes Code for which a corporation may be held accountable. Furthermore, this principle of criminal accountability of corporations has been held to apply to all offenses set forth in the Code. Commonwealth v. Schomaker, 293 Pa.Super. 78, 437 A.2d 999 (1981), reversed on unrelated grounds, 501 Pa. 404, 461 A.2d 1220 (1983). We do not agree with appellant that “persons,” as used in the statutory definition of involuntary manslaughter and reckless endangerment, see 18 Pa.C.S.A. §§ 2504(a), 2705, applies only to individuals to the exclusion of corporations.

There is no requirement in § 307(a)(3) that the criminal action must be “condoned, sanctioned or recklessly disregarded” by the Board of Directors. Corporations are criminally accountable for the actions of a “high managerial agent” who commits a wrongdoing in the scope of his office. This corporate accountability is based upon a simple principal/agency relationship and not upon a corporation affirming the officer’s act. Appellant concedes that Edwin Clancy, acting as president, was its high managerial agent.

We hold, therefore, that a corporation is indeed a “person” for criminal culpability purposes and that it need not affirm the actions of its high managerial agents to be accountable therefor.

Next, appellant raises several sufficiency arguments. First, it asserts that involuntary manslaughter was not proven beyond a reasonable doubt because there was insufficient evidence to prove that 1) any of its employees committed a lawful or unlawful act in a “reckless or grossly negligent manner”, and that 2) such act or acts directly caused Frazer’s death and were the probable and foreseeable cause of his death. With respect to reckless endangerment, appellant argues that 1) none of the employees recklessly engaged in conduct which 2) placed Frazer or other patrons in “danger of death or serious bodily injury.”

In support of these sufficency arguments, appellant loosely interprets the facts. According to appellant, neither Edwin Clancy nor other employees knew Frazer prior to the dinner dance. They also did not know that Frazer had a low tolerance for alcohol.

Appellant also points out that Edwin Clancy immediately refused to serve Frazer more alcohol upon discovering his intoxication and offered to talk with him concerning his possible alcoholism. Moreover, appellant contends Clancy demonstrated exemplary behavior by walking to the parking lot, assisting the other patrons in subduing Frazer and departing only upon seeing that Frazer was in the care of his best friend, Phillip Knapp.

Appellant cites incidents that, when reviewed in an isolated manner, point to reasonable behavior. By reviewing these incidents in context with all the facts, and in a light most favorable to the verdict winner, Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983); Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982), the acts of Mr. Clancy do indeed support guilty verdicts for involuntary manslaughter and reckless endangerment.

Dorm council president James Corriveau and resident hall director Jeff Hurrin testified that they called Edwin Clancy several times in preparation for the dinner dance. Both men instructed Clancy that most students attending were not yet 21 years old, the minimum age for alcohol consumption in Pennsylvania. Clancy replied that his facility had no problems entertaining minors in the past.

The victim was 20 years old on May 8, 1981. He was born September 20, 1960, which establishes his exact age as 20 years and 8 months at his death. Since the forensic toxicologist verified that Frazer’s blood alcohol content was .23, it follows that he drank intoxicating beverages shortly before the fatal accident. Furthermore, there was sufficient evidence that he consumed all this alcohol on appellant’s premises since his friends testified that he was not drinking prior to arriving at Penn Valley Resorts, Inc. and that he did not leave the resort from 7:00 P.M. until closing between 1:00 A.M. and 2:00 A.M.

Students Sue Mariott and James Roth, who were under 21 years of age on May 8, 1981, testified that they were not asked to present a liquor control card or other documentation of age before being served alcoholic beverages at the dinner dance. There was also testimony that Edwin Clancy himself served drinks from the open bar throughout most of the evening. The jury properly concluded, therefore, that, through its president, appellant violated the Pennsylvania Liquor Code by serving the victim, a person not of drinking age.

In addition to having served alcohol to minors, there was sufficient evidence that appellant, through its high managerial agent Edwin Clancy, served alcohol to a visibly intoxicated person in William Frazer. From 7:00 P.M. until the open bar closed at 10:30 P.M., Frazer drank double shots of whiskey and a sloe gin fizz. It was not known how many drinks he consumed from the open bar tended by Clancy; nevertheless, Frazer’s behavior reflected significant drinking.

Frazer danced to fast music, something his friends rarely observed. While sitting at the dinner table as the band played until 1:00 A.M., Frazer would alternate between depression and gaiety. He was also seen staggering to the men’s room.

After the open bar was closed, Frazer went to the public bar. When he complained about the amount of whiskey poured into a double shot glass at 1:00 A.M., Edwin Clancy intervened. In an effort to temper Frazer, Clancy poured more whiskey into the glass. Immediately thereafter, Clancy allowed Frazer to order another drink. As Frazer drank, Clancy remarked that Frazer obviously had a problem with excessive alcohol consumption.

Frazer would not leave, so Clancy presented a challenge in hope of compelling him to leave. The challenge was Clancy’s placing a cocktail on the bar and instructing Frazer that if he were not an alcoholic, Frazer could leave without drinking the cocktail. Frazer drank it and finally walked to the parking lot with his friends.

Once outside, Frazer’s friends pleaded with him to allow someone to drive his car. When Frazer locked himself in the car, James Corriveau returned to appellant’s facility to call the police. Clancy prevented Corriveau from calling the police; instead, Clancy tried to settle the matter himself. He walked to the parking lot and challenged Frazer to a fight to get Frazer to step from his car. When Frazer emerged, two friends locked the car doors, and Clancy retreated to his facility instructing the friends to resolve the problem themselves.

As the parking lot confrontation continued, Frazer’s friends left, except Phillip Knapp, who remained to prevent Frazer from driving. When Knapp wrestled the car keys from him, Frazer ran to appellant’s facility, where Clancy and other employees were preparing to leave. Knapp followed and attempted to call the police.

Clancy prevented Knapp from calling by pushing him outside. Clancy then acquired the keys from Knapp and promptly handed them to Frazer. This evidence supports the inference that Clancy had grown weary of Frazer’s temper and obstreperous conduct. Fearing dire consequences to his business and liquor license if the police were summoned, Clancy subdued Frazer by opting for the only available alternative of giving him his car keys.

After Clancy and his employees departed, Knapp was left alone with Frazer. As discussed above, after Knapp wrestled the keys from Frazer a second time, Frazer searched his car for a gun and Knapp released the keys. Frazer then drove away and was killed shortly thereafter.

This evidence establishes that appellant, through its high managerial agent, committed involuntary manslaughter and reckless endangerment. With respect to involuntary manslaughter, Clancy committed the unlawful act of serving alcohol to Frazer within the scope of his employment. This was done in a reckless or grossly negligent manner because, despite having notice that most students were not of legal drinking age, Clancy served them without requiring proof of their age. Furthermore, regardless of Frazer’s age, Clancy served him while he was visibly intoxicated and after Clancy commented on Frazer’s drinking problem. This behavior also amounts to reckless endangerment.

In addition, the causation factors of both offenses were satisfied by the facts. Clancy’s reckless and grossly negligent manner placed Frazer in danger of death or serious bodily injury. We must clarify that the serving of intoxicating beverages to a minor or visibly intoxicated person alone may not constitute involuntary manslaughter or reckless endangerment. Here, it was the serving of alcohol, coupled with several crucial elements known to Clancy, which established causation and therefore, the offenses.

Clancy knew that Frazer was continuously entertained at Penn Valley from 7:00 P.M. until after 1:00 A.M. Clancy observed Frazer’s highly inebriated condition, commented on his drinking problem, observed his violent resistance to his friends’ attempts to prevent his driving, refused to call the police, grabbed the keys from Knapp and handed them to Frazer and drove away ridding himself and appellant of the confrontation. This evidence supports a finding that Clancy’s serving of alcohol to Frazer, and subsequent encouragement of Frazer’s driving his automobile, placed Frazer in danger of death.

It is appellant’s next contention that the lower court erred in submitting a written instruction to the jury on the elements of involuntary manslaughter which included three points for charge prepared by the Commonwealth. Appellant complains that this written instruction called the jury’s attention to malice, the unrelated charge of third degree murder and certain language underlined by the Court. Also, according to appellant, this written instruction emphasized elements which the Commonwealth did not have to prove.

On three occasions during deliberations, the jury requested a definition of involuntary manslaughter. Following a discussion with counsel, the court decided to submit the written definition of involuntary manslaughter as set forth in Pa. Suggested Standard Jury Instructions (Criminal), Chapter 15.2504.

In addition, the lower court submitted three Commonwealth points for charge. One point stated that reckless conduct need not be the sole cause of death; rather, it was sufficient to sustain a verdict of involuntary manslaughter if such conduct was a direct and substantial factor in causing death. The second charge discussed recklessness and how it may exist where the accused intentionally disregarded a standard of care and, in doing so, failed to perceive the risk of death or serious bodily harm. Finally, the third Commonwealth point for charge discussed causation and how it was sufficient proof that the accused’s conduct started a chain of causation leading to death, rather than proving that it was the immediate cause of death.

We find no error in the submission of this written jury instruction along with three written points for charge to the jury. Having requested thrice for the definition of involuntary manslaughter, the jury’s misunderstanding of the offense was not rectified by earlier oral instructions. Furthermore, the court instructed the jury to disregard the underlineations on the written definition of involuntary manslaughter.

We believe that this written instruction did not call attention to third degree murder; that offense was not charged and the jury was obviously aware, having started deliberations, that a third degree murder charge was not before them. Also, the charge did not emphasize what the Commonwealth need not prove. Rather, it defined the scope of involuntary manslaughter and causation.

Even without this instruction of precaution, we do not agree that appellant would have suffered prejudice. Admittedly, the underlineations called attention to “death” and “negligent” conduct. At the same time, they focused on “unjustifiable risk” of death, “grossly unreasonable” disregard of that risk and conduct that was “grossly negligent.” These qualifying words made clear to the jury that an accused’s conduct must be extreme before criminal liability can be found. Considering the charge as a whole, we hold that there was no reversible error. Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983); Commonwealth v. Wortham, 471 Pa. 243, 369 A.2d 1287 (1977).

Finally, appellant argues that the lower court erred in denying its request to charge the jury on the possibility of intervening causes of death. Appellant states, without reference to specific events or where they were discussed in the record, that there were “numerous events and interrelationships between the victim and others besides the defendant” that could have served as intervening causes of death. Without reference to specific intervening causes and evidence thereof, we shall not find reversible error for the court’s refusal to instruct on intervening causes.

Judgment of sentence affirmed.


author: LIPEZ, Judge:

text:
    494 A.2d 1146
    COMMONWEALTH of Pennsylvania v. Roderick Y. CURRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 22, 1985.
    Filed June 14, 1985.

      Mitchell A. Kaufman, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before POPOVICH, WATKINS and LIPEZ, JJ.
   LIPEZ, Judge:

In a non-jury trial, defendant was convicted of robbery, aggravated assault, and two firearms violations. A pre-trial motion to suppress evidence of a handgun was denied.. Post-trial motions were denied, sentence was imposed, and defendant took this appeal alleging that the lower court erred in refusing defendant’s motion to suppress evidence of the gun seized from defendant’s apartment, because the police activities in question violated the Fourth Amendment’s rule against unreasonable searches and seizures. We affirm.

The facts surrounding this incident are as follows: police officers responded to a call regarding a robbery and shooting incident. At the scene, police first secured aid for the victim they found lying in the street, then were conducted by an eyewitness to the nearby home of the defendant. As police approached the defendant’s apartment, they noticed that the front door was wide open, and they could see the defendant clearly through the screen door. Police saw that the defendant was sweating, and that his shirt was spattered with blood. They asked defendant to step out on to the porch, which he did. The accompanying eyewitness then identified defendant as the assailant, and the officers placed defendant under arrest. Incident to the arrest, the victim’s wallet was discovered by a pat-down search of the defendant. The arresting officers were joined by a back-up team, who were directed to secure defendant’s apartment. One of the officers described the procedure of securing the apartment:

Check to make sure nobody is in it. First make sure the back door was closed, the windows were secured, nobody could get into the house other than through the front door with a key ... I waited before I locked the entry, wanted to make sure no other means of entry like the back door or the windows. (N.T. 28).

The officer testified that it was the responsibility of the back-up team to secure the apartment and lock it up. The officers went through the entire apartment to make sure the windows were closed and other entrances were locked so that nobody would disturb potential evidence, and to determine if there were any other occupants in the apartment. During this security check, one of the officers noticed the barrel of a gun protruding from a piano stool case, and a spent casing on the floor. It is this handgun which defendant seeks to suppress.

Defendant does not argue that the arrest of defendant was invalid. Police clearly had probable cause to arrest defendant in this case. Instead, defendant claims: (1) that Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), strictly prohibits the search of a dwelling incident to an arrest which occurred outside the dwelling; and (2) that there were no “exigent circumstances” which justified the security check of his apartment.

Initially we note that other federal courts have not interpreted Vale as absolutely prohibiting a search of a dwelling incident to an arrest made outside the dwelling. Rather, these courts have focused on whether “exigent circumstances” existed which justified a search, even though a suspect was arrested outside the dwelling. U.S. v. Astorga-Torres, 682 F.2d 1331 (9th Cir.1982), cert. denied at 459 U.S. 1040, 103 S.Ct. 455, 74 L.Ed.2d 608 (1982), cert. denied at 459 U.S. 1108, 103 S.Ct. 734, 74 L.Ed.2d 957 (1982); U.S. v. Allison, 639 F.2d 792 (D.C.Cir.1980); McGeehan v. Wainwright, 526 F.2d 397 (5th Cir.1976); Hopkins v. Alabama, 524 F.2d 473 (5th Cir.1975). Thus, our inquiry will be: given the fact that defendant was arrested on his porch, were there “exigent circumstances” that justified the subsequent security check of his apartment?

The case law with regard to search and seizure has been summarized as follows:

The Fourth Amendment safeguard against unreasonable searches and seizures is aimed at deterring, inter alia, physical entry into the home. U.S. v. U.S. District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Securing a warrant under the discernment of a detached and impartial issuing authority prevents the dangers of unfettered intrusions into such sacrosanct environments. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed.2d 436 (1948). As a result, warrantless searches and seizures inside a home are presumptively unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). This presumption can be overcome where a lawful arrest necessitates the search and seizure of dangerous weapons within reach of the accused in the interest of insuring the safety of the arresting officers. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Commonwealth v. Bess [395 U.S. 752, 89 S.Ct. 2034], 23 L.Ed.2d 685 (1969); Commonwealth v. Bess, 476 Pa. 364, 382 A.2d 1212 (1978). Neither Chimel, supra, nor Bess, supra, permit searches of that portion of the premises beyond the accused’s immediate control.

Commonwealth v. Henkel, 306 Pa.Super. 346, 352, 452 A.2d 759 (1982). The United States Supreme Court has recognized that there are “exigent circumstances” which justify a warrantless search incident to an arrest. The rationale underlying these exceptions to the warrant requirement is to ensure the safety of police officers and to prevent the destruction or removal of evidence. Chimel v. California, supra; Coolidge v. New Hampshire, supra; Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). In light of this rationale, the Pennsylvania Supreme Court has ruled that police may search the entire building incident to an arrest, for the purpose of seeking other people who may threaten the officer’s well being, if the officers have reason to believe that others are present. Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982), accord: Commonwealth v. Henkel, 306 Pa.Super. 346, 452 A.2d 759 (1982).

In Mincey v. Arizona, supra, the U.S. Supreme Court held that an extensive search by police of defendant’s home incident to an arrest was improper because there was “no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant.” 437 U.S. at 394, 57 L.Ed.2d at 301. Other federal courts have recognized the need to allow police, after an arrest, to make security checks of a dwelling to determine whether any other persons were in the dwelling who might pose a threat to police or destroy, tamper with, or remove evidence. U.S. v. Irizarry, 673 F.2d 554 (1st Cir.1982) (the court upheld the validity of a post-arrest security check of defendant’s hotel room, where the search was motivated by concern for the safety of fellow officers, and the police had reason to believe that other people, possibly armed, were in the hotel room); U.S. v. Vasquez, 638 F.2d 507 (2nd Cir. 1980) (the court upheld the validity of a security check of defendant’s apartment, and a plain view seizure of items in the apartment during the security check, where police reasonably believed that other persons were in the apartment and might destroy evidence); U.S. v. Allison, 639 F.2d 792 (D.C.Cir.1980) (upheld warrantless search of hotel room, where agents were informed by arrested defendant that another person was staying with him at the hotel, and that this person had “dope” and a “gun”; this provided the necessary “exigent circumstances” because the contraband was threatened with “imminent removal or destruction”); U.S. v. Gomez, 633 F.2d 999 (2d Cir.1980) (warrantless security check and evidence seized in plain view during security check are valid, where agents arrested defendant who was with three other people in the apartment; agents had reason to believe that other people might be in the apartment); U.S. v. Looney, 481 F.2d 31 (5th Cir.1973) (upheld the admissibility of weapon seized in plain view during cursory search of entire house where police knew that defendant was dangerous and had a known propensity for using confederates); U.S. v. Christophe, 470 F.2d 865 (2d Cir.1972) (agents “were entitled to conduct a cursory examination of the premises to see if anyone else was present who might threaten their safety or destroy evidence.”).

In U.S. v. Agapito, 620 F.2d 324 (2d Cir.1980), cert. denied 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980), the Second Circuit Court of Appeals minimized the intrusiveness of a security check:

The reasonableness of a security check is simple and straightforward. From the standpoint of the individual, the intrusion on his privacy right is slight; the search is cursory in nature and is intended to uncover only ‘persons, not things.’____ From the standpoint of the public, its interest in a security check is weighty. The delay attendant upon obtaining a warrant could enable accomplices in another room to destroy evidence. More important, the safety of the arresting officers or members of the public may be jeopardized.

Id. at 336. The court in Agapito, however, held that the security check in this instance was unreasonable because the agents had watched the place for several days and had no reason to believe that anyone else was in the room.

A few federal courts have upheld security checks of dwellings even when police have not had a reasonable belief that other persons were inside the dwelling. In Hopkins v. Alabama, 524 F.2d 473 (5th Cir.1975), police were fired upon from within defendant’s house, shot tear gas to force defendant to exit the house, arrested the defendant outside, and then conducted a security check of the house. The court reasoned that since police had been shot at, and defendant did not have a gun when he came out of the house, the police did not act unreasonably in searching the house to check if anyone else was there who might use the as yet unfound weapon.

Similarly, in U.S. v. Astorga-Torres, 682 F.2d 1331 (9th Cir.1982), cert. denied, at 459 U.S. 1040, 103 S.Ct. 455, 74 L.Ed.2d 608 (1982), cert. denied, at 459 U.S. 1108, 103 S.Ct. 734, 74 L.Ed.2d 957 (1982), the court upheld a search of a dwelling incident to an arrest made outside the dwelling. The police were fired upon after they kicked-in defendant’s front door. Officers fired tear gas into the cabin, forcing two defendants to throw out their guns and come out of the cabin. In upholding the subsequent search of the cabin, the court reasoned that “[w]hile the presence of anyone else in the cabin was most unlikely ... officers who have been subjected to pistol fire from [within the cabin] can hardly be said to be acting unreasonably when they take steps to make sure of their safety.” (emphasis added) Id. at 1335.

Moreover, in both Hopkins and Astorga-Torres, the courts upheld the validity of a search of a dwelling incident to an arrest made outside the dwelling. The court in Hopkins specifically stated that the Vale decision did not prohibit the search in question because Vale did not present “the exigent circumstances and fact setting shown in this case.” Vale involved a search for narcotics, and there was no indication that the suspect was armed. In Hopkins, however, police were fired upon from within the house, and the weapon was not yet accounted for when they arrested the suspect outside the house. The court in Hopkins concluded that “[t]he immediate need to ensure that no one remained in the house prepared to fire the yet unfound weapon obviously justified the warrantless search.” Hopkins v. Alabama, supra at 475.

The facts in Astorga-Torres were similar to those in Hopkins in that police were fired upon from within the cabin, and searched the cabin after arresting two suspects outside the cabin. Here, the court upheld the search even though the two suspects had surrendered their guns to police. In both cases, the courts reasoned that the need to ensure the safety of the police officers justified the war-rantless searches.

The facts of our case do not fit neatly into any of the precise fact situations in the many search and seizure cases noted above. But the circumstances of our case are similar to those in Hopkins and Astorga-Torres. Although in the case sub judice police were not fired upon from within defendant’s apartment, they had no way of knowing whether or not anyone else was in the apartment. More importantly, police knew that a shooting incident had just occurred, an eyewitness identified defendant as the assailant, defendant was observed to be sweaty and his shirt was blood-spattered, and the gun used in the shooting incident was not yet accounted for when they arrested defendant on his porch. Under these circumstances, it was not unreasonable for police to enter the apartment and make a brief security check to ensure that no one remained inside the apartment who might use the as yet unaccounted for weapon. Such conduct is perfectly consistent with the rationale underlying the exigent circumstances doctrine, namely: the need to ensure the safety of police officers. In an emergency situation such as this, the potential threat of the unknown can be more dangerous than the threat of the known. We think it is unreasonable to ask police officers arriving at the scene of a shooting incident and arresting defendant on his porch, to assume that nobody else was in defendant’s apartment. “Courts must be careful not to use hindsight in limiting the ability of police officers to protect themselves as they carry out missions which routinely incorporate danger.” Astorga-Torres, supra, at 1335.

Our holding, of course, is limited to the particular circumstances of this case. Had this not been an emergency situation; had this not involved a dangerous shooting incident which had just occurred with the gun not yet accounted for; had the police activities been more intrusive than a security check, the holding might be different. But in the circumstances of this case, we believe our holding to be a reasonable and logical, but limited extension of our courts’ ruling in Commonwealth v. Norris, supra, and Commonwealth v. Henkel, supra, and most of the federal court rulings discussed earlier in this opinion, and consistent with the reasoning of Hopkins, supra, and Astorga-Torres, supra

Defendant’s reliance on Mincey v. Arizona, supra, is misplaced. Mincey did not involve the mere securing of an apartment by police. In Mincey, the search by police lasted four days, during which officers opened drawers and closets, and inspected their contents; emptied clothing pockets; and even pulled up sections of the carpet in defendant’s apartment. In all, 200-300 objects were seized. The police activities in our case do not even remotely resemble those in Mincey.

Our case is distinguishable from Commonwealth v. Getz, 236 Pa.Super. 469, 344 A.2d 686 (1975) in two important respects. First, in Getz, the police searched defendant’s second floor apartment after arresting him on the ground floor. Whereas in our case, the arrest occurred on the defendant’s porch just outside the apartment’s screen door (the solid front door was wide open). Second, in Getz, police arrived at the scene of a reported burglary. They had no information indicating that the suspect was armed. In our case, however, police arrived at the scene of a reported shooting, secured aid for the victim of this incident, arrested the person identified as the assailant, but discovered that the gun was unaccounted for. The potential danger to police in the case sub judice was clearly greater than that in Getz.

It would be stretching the boundaries of logic to hold that the need to ensure the safety of an arresting officer (and, in this case, the people who had gathered near the apartment) is not as great when he arrests a suspect on his porch, in front of the screen door, as when he arrests a suspect inside the apartment, just on the other side of the screen door. Furthermore, it is clear from the facts of this case that police could have legally arrested defendant inside of his apartment. A crime of violence had been committed; it was reasonable to assume that the suspect had a gun; police had probable cause to arrest; and they had a strong reason to believe that the suspect was on the premises. Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), cert. denied at — U.S. —, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984). Therefore, we attach even less significance to the fact that the arrest occurred on the porch.

Thus, given the underlying rationale for the “exigent circumstances” doctrine, we hold that the particular circumstances of this case justified the police activities in undertaking to secure defendant’s apartment incident to the arrest. Since the police activities were reasonable and justified under the circumstances, the handgun, spotted in plain view protruding from the piano-stool case, was admissible evidence. “The police may seize any evidence that is in plain view during the course of their legitimate emergency activities.” Mincey v. Arizona, 437 U.S. at 393, 98 S.Ct. at 2413, 57 L.Ed.2d at 300. See also Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980) (Flaherty J., with three justices concurring).

Judgment of sentence affirmed.

      . It is unclear just how long the police officers remained at the apartment after defendant’s arrest. One of the back-up officers testified that after searching through the other rooms of the apartment and securing other entrances, the officers had difficulty locking one of the doors. This was explained by one of the arresting officers who testified that he mistakenly gave the back-up team the wrong set of keys with which to lock-up the apartment. Thus, the officers had to wait for the arresting officer to return the keys to them. One of the back-up officers said that this delay lasted fifteen or twenty minutes. The arresting officer said it might have taken an hour or so, but that he was not sure. In either case, there is no evidence that during this delay, the officers did anything other than unsuccessfully attempt to lock the door. There is no indication from the evidence to support defendant’s claim that the officers conducted "a calculated and thorough search.”

      . We note further that the United States Supreme Court has yet to address this specific question. However, in the recent case of Segura v. U.S., 486 U.S. —, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), in dicta, Chief Justice Burger (who wrote the majority opinion) joined by Justice O’Connor opined that, having arrested the defendant in the lobby of an apartment building, agents should be permitted to conduct a limited security check of defendant’s third-floor apartment to ensure that nobody else was there who might pose a threat to their safety or destroy evidence. The Chief Justice distinguished between the possessory interests and the privacy interests of a dwelling; and between the seizure of premises and a search of premises. A seizure of premises affects possessory interests, while a search of premises affects privacy interests. The Chief Justice characterized the temporary securing of a dwelling as a seizure of the premises, not a search. He concluded, "the heightened protection we accord privacy interests is simply not implicated where a seizure of the premises, not a search, is at issue” Id. at —, 104 S.Ct. at 3389, 82 L.Ed.2d at 612. Only Justice O’Connor joined in this part of the Chief Justice’s opinion.

      . We need not decide whether the other rationale of the "exigent circumstances” doctrine — the need to prevent the removal or destruction of evidence — also justified the police activity in this case. We only note that the threat posed to evidence is not as weighty a circumstance as a threat posed to the lives of police officers. As stated before, in this emergency situation police simply had no way of knowing whether or not anyone else was in the apartment. One officer testified that shortly after defendant’s arrest, a woman who identified herself only as defendant’s girlfriend’s mother tried unsuccessfully to get him to surrender the premises to her. There were also several other people gathered outside the apartment. This case, then, does not fit neatly into the facts of prior cases where police had some reason to believe that others might be present inside the defendant’s house or apartment. Here, police had reason to believe that at least one person immediately outside the apartment might attempt to remove evidence if given a chance to enter the apartment.