author: CAVANAUGH, Judge:

text:
    434 A.2d 164
    NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant, v. James P. WALTER, Thomas W. MacNeel, State Farm Mutual Automobile Insurance Company, Terry L. Fetter, Richard J. Restifo and William Meyers, T/A, Bucks County Imports.
    Superior Court of Pennsylvania.
    Argued September 9, 1980.
    Filed Aug. 21, 1981.

      William T. Renz, Doylestown, for appellant.
    Frederick E. Smith, Jr., Philadelphia, did not file a brief on behalf of Walter, appellee.
    Richard Giannini, Jr., Doylestown, for MacNeel, appellee.
    Glenn D. Hains, Morrisville, for State Farm, appellee.
    Thomas F. J. MacAniff and Kenneth R. Williams, Doyles-town, for Fetter, appellee.
    Joseph V. Restifo, Philadelphia, did not file a brief on behalf of Restifo, et al., appellees.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   CAVANAUGH, Judge:

Appellant, Nationwide Mutual Insurance Company, filed a petition under the Declaratory Judgment Act, Act of June 18, 1923, P.L. 840, § 1, as amended, 12 P.S. § 831 et seq. to have the court construe certain clauses in a policy of insurance issued by appellant to James P. Walter, one of the appellees before this Court. Following a hearing before Judge Ludwig an adjudication and decree nisi were filed. The court found that Nationwide Mutual Insurance Company was obligated under the automobile liability insurance policy issued to James P. Walter to defend and protect James P. Walter, Terry L. Fetter, Thomas W. MacNeel, Richard J. Restifo, and William Meyers, individually and trading as Bucks County Imports, in regard to an automobile accident which occurred on October 7,1972. Appellant’s exceptions to the adjudication and decree nisi were dismissed and following entry of final decree appellant has filed an appeal with this Court.

The automobile insurance policy issued by the appellant to Mr. Walter contains two clauses which were involved in the proceedings under the Declaratory Judgment Act. The first clause under consideration in the policy contained the following omnibus clause:

To pay all sums which those entitled to protection become legally obligated to pay as damages arising out of the ownership, maintenance or use, including loading and unloading, of the described automobile because of:
(2) bodily injury, sickness, disease or death of any person except for liability under any workmen’s compensation law. Those entitled to protection under these Coverages c(l) and c(2) are (a) the Policyholder; (b) any resident of the same household; and (c) any person or organization legally responsible for the use of the described automobile, provided the actuál operation or (if he is not operating) the other actual use thereof is with the permission, expressed or implied, of the Policyholder or his spouse is such a resident.

The insurance policy also contained the following exclusionary provision which was set forth in the petition for declaratory judgment:

There shall be no protection afforded (2) under Coverages C(l), C(2), D(l) and D(2), to any person or organization or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place, with respect to any occurrence arising out of the operation thereof.
In addition the policy contained the following condition:
c. Condition 9: ‘Such terms [of the policy] as are in conflict with statutes of the state in which this policy is issued are hereby amended to conform.’

James P. Walter, to whom the policy was issued was a resident of Milford, New Jersey. On June 29, 1972, Mr. Walter was the owner of a 1962 Austin Healy automobile, and on that date the appellant issued to him the insurance policy involved in this case. Not long afterwards Mr. Walter decided to sell his car. He attempted to sell it himself by advertising it in the newspapers but was unsuccessful. He was acquainted with Mr. Fetter, who was employed by Bucks County Imports located in Plumsteadville, Bucks County, Pennsylvania. Bucks County Imports was a used car sales agency and Mr. Fetter told Mr. Walter that he was sure they could sell the car for him. Mr. Walter delivered his car to Bucks County Imports and it was agreed that the company would attempt to sell the car for him and that upon its sale he would be paid $600.00 and the balance of the sales price would be retained by Bucks County Imports as its commission. Mr. Walter signed his title certificate in blank and gave it and the registration card to Bucks County Imports. The name of the buyer was left blank to be filled in after a buyer was found for the car. After some time had passed Walter became concerned because Bucks County Imports had not found a buyer. He went to the dealer and said that he would accept $400.00 rather than $600.00 for the car and they could receive whatever was left over after the car was sold.

On October 7, 1972, the car was still unsold. On that date Mr. MacNeel, who was interested in buying the car, stopped by the office of Bucks County Imports to make inquiry. This was about 10 p. m. and after waiting until Mr. Fetter was available, Fetter and MacNeel went for a demonstration ride in the automobile and while so engaged the car was involved in an accident. As a result of the accident Mr. MacNeel and Mr. Fetter suffered personal injuries. The court below found that at the time of the accident Fetter was an agent acting on behalf of Richard J. Restifo and William M. Meyers, individually and trading as Bucks County Imports. It further found that Bucks County Imports and Fetter were acting as agents for Walter and that the vehicle was being operated with Walter’s consent. It is undisputed that the insurance policy in question was in full force and effect when the accident occurred.

After, the accident Mr. Walter was notified by State Farm Mutual Automobile Insurance Company, an appellee herein, that a claim would be made on behalf of Thomas W. MacNeel against him. Walter notified his insurance carrier, the appellant, and as a result a petition for declaratory judgment was filed to determine if the appellant was required to defend Walter, Fetter and Meyers and Restifo trading as Bucks County Imports.

There was some discrepancy in the testimony, especially as to whether Walter left his license plates on the car when he delivered it to Bucks County Imports to be sold by them. There was also a dispute as to whether Fetter or MacNeel was operating the car at the time of the accident and the Chancellor made no findings of fact concerning that issue. However, the chancellor’s findings of fact approved by the court en banc have the force and effect of a jury’s verdict if supported by adequate evidence. Aiken Industries, Inc. v. Estate of Wilson, 477 Pa. 34, 383 A.2d 808 (1978). The facts as found by the chancellor, and approved by the court en banc, were supported by the evidence and are therefore binding on us.

Our initial inquiry concerns the validity of the exclusionary provisions under New Jersey law, the state where the policy was issued to Mr. Fetter in June, 1972, and Pennsylvania law, the state where the accident occurred in October, 1972. The policy of insurance excludes protection to a “sales agency.”

Since the court below found that Bucks County Imports was a sales agency of used cars and was acting as agent for Mr. Walter in the sale of the Austin Healy and that Fetter was the agent of Bucks County Imports, then Richard J. Restifo and William Meyers, trading as Bucks County Imports and Mr. Fetter as an agent and employee of Bucks County Imports, would not be entitled to protection because of the exclusionary provision, unless it is invalid in this case. The type of exclusionary clause found in the insurance policy issued to Mr. Walter is not valid in the State of New Jersey. “The New Jersey courts have consistently invalidated insurance clauses purporting to restrict the ‘omnibus coverage’.” McFarland v. Motor Club of America Insurance Co., 120 N.J.Super. 554, 558, 295 A.2d 375, 378 (1972). Under the New Jersey Motor Vehicle Security-Responsibility Law, N J. S.A. 39:6-46(a) coverage issued to an insured must extend to “any other person using or responsible for the use of any such motor vehicle with the express or implied consent of the insured ...” The case of Unsatisfied Claim and Judgment Fund Board, 117 N.J.Super. 5, 283 A.2d 350 (1971) involved a declaratory judgment proceeding to determine the validity of an exclusionary clause in an automobile liability policy and its effect on the omnibus clause of the policy. The court pointed out at 117 N.J.Super. 8, 283 A.2d 352:

The Motor Vehicle Responsibility Law requires that any liability insurance policy issued in this State shall designate the motor vehicle which is to be covered, and “insure the insured named therein and any other person using or responsible for the use of any such motor vehicle with the express or implied consent of the insured * * N J.S.A. 39:6-46. This statute also prohibits any conflict between the form of the policy and the provisions of the act. N.J.S.A. 39:6-48.

The court held that to the extent the exclusionary clause had the effect of limiting the protection afforded to the permitted user under the omnibus clause, it was invalid.

In the instant case Walter’s automobile was being operated with his implied consent, as the purpose of Mr. Fetter demonstrating the car to Mr. MacNeel was to aid in the sale of the car for Walter, which was the sole reason Bucks County Imports was in possession of the automobile. Under New Jersey law the exclusionary clause would be ineffective.

Pennsylvania, in contrast to New Jersey, has not held a garageman’s exclusion to be invalid. See Stephanelli v. Yuhas, 135 Pa.Super. 573, 7 A.2d 124 (1939); Bechler v. Olivia, 400 Pa. 299, 161 A.2d 156 (1960). However, as the court below pointed out, at the time the policy was issued, Pennsylvania law did not require automobile insurance as a prerequisite for obtaining title to a motor vehicle, but only proof of financial responsibility. Pennsylvania courts have not specifically ruled on the validity of an exclusionary clause such as we have in this case, as a matter of public policy. Nor are we faced with that decision, as we conclude that under the doctrine of conflict of laws, or choice of law, that New Jersey law is applicable in this case.

The case of Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964) laid to rest the lex loci delecti rule that had existed in Pennsylvania for many years. That rule provided that the law of the place of wrong determines whether a person has sustained a legal injury. The Supreme Court stated in 416 Pa. 31, 203 A.2d 805:

Thus, after careful review and consideration of the leading authorities and cases, we are of the opinion that the strict lex loci delicti rule should be abandoned in Pennsylvania in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.

The court pointed out that in tort cases contacts considered vital in determining the state of most significant relationship include place of injury, place of conduct, domicile of the parties, and the place where the relationship between the parties is centered. The Griffith case dealt with choice of laws problems arising in tort actions. Our inquiry goes to the law to be applied in a contract case. As stated in Melville v. American Home Assurance Company, 584 F.2d 1306 (3rd Cir. 1978):

The threshold task in this analysis is to determine whether the flexible conflicts methodology adopted by the Pennsylvania Supreme Court for tort actions in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), has been extended to contract actions. Although no Pennsylvania case clearly so holds, we think, as explained below, that the evolution of Pennsylvania conflicts decisions ineluctably leads to the conclusion that the Griffith approach will be employed in contract actions when the occasion arises.

In this contract case, the state having the most vital contacts with the policy of insurance involved was New Jersey. The policy was issued in New Jersey by the appellant in June, 1972, to Mr. Walter, a resident of New Jersey. It was issued for the twofold purpose of giving insurance protection to Mr. Walter and others as set forth in the policy, and to comply with the requirements set forth in the New Jersey Motor Vehicle Security Responsibility Statute, supra. No matter where Mr. Fetter drove his car or gave consent to others to operate his vehicle, he had the right to expect that his policy conformed to New Jersey law and that the laws of New Jersey would apply in interpreting the policy. Pennsylvania had no contact with the transaction involving the insurance policy. It was by mere happenstance that the automobile was involved in an accident while located in Pennsylvania. As noted in Griffith v. United Airlines, Inc., 416 Pa. 24, 203 A.2d 806: “[T]he site of the accident purely fortuitous.”

Appellant argues, and we agree, that to determine the state whose law should be applied, we must look to the contacts with each of the states involved. The appellant is an Ohio corporation registered to do business in Pennsylvania. None of the parties involved in this case contends that Ohio has sufficient contacts with the case to make Ohio law applicable. Appellant argues that Pennsylvania had the most significant contacts as the car was located in Pennsylvania when the accident occurred having been previously delivered to Bucks County Imports by Mr. Walter, the accident occurred in Pennsylvania, and both occupants of the car at the time of the accident were Pennsylvania residents. Appellant overlooks the fact that these points of contact with Pennsylvania pertained to the alleged tort involved. We are concerned with the contract of insurance and as to the insurance policy New Jersey had the most significant contacts. The appellant issued an insurance policy to a New Jersey resident to cover an automobile located in New Jersey. The policy itself stated that any terms of the policy that are in conflict with the statutes of the state in which the policy is issued were amended to conform to the state statute. Finally, the purpose of Mr. Walter in obtaining the policy was, at least partially, to comply with the laws of New Jersey.

Apart from the flexible contacts methodology adopted in Griffith, supra, the law of New Jersey applies under the traditional Pennsylvania law which provides that the construction of a contract is governed by the law of the state where the contract is made. Crawford v. Manhattan Life Insurance Company of New York, 208 Pa.Super. 150, 221 A.2d 877 (1966). That case involved the interpretation of a life insurance policy. The court held that West Virginia law applied although it stated that the result would have been the same even if the standards enunciated in Griffith v. United Airlines, supra, had been applied. “Under Griffith the law of the state which has the most significant relationship with and interest in the occurrence and the parties would control.” 208 Pa.Super. 156, 221 A.2d 881. The court considered the interest of West Virginia in determining that that state had the most significant contacts with the policy as the insured was a resident of West Virginia, the policy was solicited and delivered there, and the beneficiary resided in West Virginia.

Appellant also argues that Walter was not the owner “of the car at the time of the accident, as at least one month prior to the accident he entered into an agreement with Bucks County Imports for the sale of the vehicle.” This argument is based on facts contrary to those found by the chancellor. The chancellor found that the car was delivered to Bucks County Imports to be sold by that firm on behalf of Walter, and that Walter was the owner of the vehicle. The court specifically ruled that the transaction between Walter and Bucks County Imports was a bailment whereby Walter remained the owner and Bucks County Imports was an agent authorized to act for him in offering the car for sale. Further, Walter and Bucks County Imports agreed that Walter would maintain insurance on the car until it was sold. Although the question of legal title is one of law, the facts support the conclusion that title to the vehicle did not pass to Bucks County Imports or anyone else prior to the accident.

Appellant’s final argument that Walter could not have given implied consent for Fetter to take the car out on a demonstration ride at about 11:00 p. m., is not supported by the record. Mr. MacNeel testified that he had observed the car earlier in the day at Bucks County Imports and was interested in buying it. He went to their place of business at about 10 p. m. and found it open. Mr. Fetter was busy with other matters until about 11 p. m. and at that time the car was taken out for a demonstration drive. Appellant argues that Walter’s implied permission “would be limited to the reasonable expectation of Walter that this vehicle would only be operated during business hours.” In this case 11 p. m. was during Bucks County Imports’ business hours as the shop was still open. In this modern age of flexible work hours we cannot conclude that Mr. Walter gave no implied consent to demonstrate the car at 11 p. m. Further, the omnibus clause covered use by a person within the “permission, express or implied, of the policy holder.” Under the New Jersey law once:

a person is given permission to use a motor vehicle in the first instance, any subsequent use short of theft or the like while it remains in his possession, though not within the contemplation of the parties, is a permissive use within the terms of a standard omnibus clause in an automobile liability insurance policy.

Matits v. Nationwide Mutual Insurance Company, 33 N.J. 488, 166 A.2d 345, 349 (1960). See also Butler v. Bonner and Barnewall, Inc., 56 N.J. 567, 267 A.2d 527 (1970).

Order affirmed.


source: Caselaw Access Project

author: DiSALLE, Judge:

license: Public Domain

text:
    434 A.2d 169
    HARRY BLACKWOOD, INC., Appellant, v. Richard CAPUTO, t/a/d/b/a Caputo’s.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1981.
    Filed Aug. 21, 1981.

      John J. Petrush, Beaver Falls, for appellant.
    John A. Caputo, Pittsburgh, for appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   DiSALLE, Judge:

Appellant, Harry Blackwood, Inc., is an insurance agency and the former employer of appellee, Richard Caputo, who is presently doing business as an independent insurance agent. Appellant brought this action in equity in the court below seeking enforcement of its employment contract with appel-lee, specifically the covenant not to compete. Appellant filed this appeal from the Order of the court below dismissing its exceptions to the adjudication, and affirming the decree nisi entered by the chancellor. The appeal raises three issues, all of which we find to be without merit.

First, appellant alleges error in the lower court’s interpretation of the covenant not to compete. The covenant reads as follows:

Caputo agrees that, in case his employment is terminated for any cause, whether voluntary or otherwise, he will not, thereafter, for a period of five (5) years after leaving the employment, for himself or in behalf of any other person, partnership or corporation, directly or indirectly, solicit, divert or take away or attempt to solicit, divert or take away, any of the clients, business or patronage of such clients as were or had been served by the Agent as of the date of termination of his employment hereunder. (emphasis added)

Appellant contends that the covenant precludes appellee from any writing of insurance for any of appellant’s former customers. The lower court interpreted the covenant as prohibiting appellant

from taking any affirmative action either directly or indirectly toward the securing of business from any person or firm who was a customer of the plaintiff at the time the defendant left the plaintiff’s employment. .. the covenant [does not] prohibit. .. the defendant from selling insurance to customer’s of the plaintiff as long as he does not solicit or otherwise attempt to interfere with the relationship between his former employer and the customer.

It has been said that

appellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion. .. The scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious, (citations omitted)

Sack v. Feinman, 489 Pa. 152, 165, 413 A.2d 1059, 1066 (1980). We find no error in the lower court’s interpretation of the covenant. In Hayes v. Altman, 438 Pa. 451, 454, 266 A.2d 269, 271 (1970), our Supreme Court said that “because restrictive covenants are a partial restraint upon the free exercise of trade, . .. they should be strictly construed, particularly when such contracts are ancillary to an employment agreement rather than ancillary to the sale of a business.” Here, appellant would have us interpret the phrase “divert or take away” as synonymous with “writing” or “selling”, and argues that the appellee was hired “not just to solicit new insurance accounts, but also to sell new insurance accounts. .. . ” The obvious answer to this contention is quite simply that the covenant in question does not proscribe the selling or writing of insurance; it prohibits only the soliciting, diverting or taking away of such business. Under the circumstances, we cannot say that the court below erred in its construction of the covenant.

Secondly, appellant contends that the lower court abused its discretion and erred in reducing the duration of the covenant from five years to a period of three years. In Sidco Paper Company v. Aaron, 465 Pa. 586, 591, 351 A.2d 250, 252 (1976), our Supreme Court stated that

[o]ur courts will permit the equitable enforcement of post-employment restraints only where they are incident to an employment relation between the parties to the covenant, the restrictions are reasonably necessary for the protection of the employer, and the restrictions are reasonably limited in duration and geographic extent, (emphasis added) (citations omitted).

And in Boldt Machinery & Tools, Inc. v. Wallace, 469 Pa. 504, 513, 366 A.2d 902, 907 (1976), the Court, quoting from Blake, Employee Covenants Not to Compete, 73 Harv.L.Rev. 625, note 1 at 677-78, stated that

In the present case, appellant’s owner testified at trial that the majority of appellant’s insurance policies are written for only one year, and that it takes only two or three years to solidify the client’s confidence in a new employee. In light of this testimony, we cannot say that the lower court’s limitation was unreasonable, Sidco Paper, supra, an abuse of discretion, or unsupported by the evidence. Sack, supra.

Finally, appellant argues that the lower court erred in not ordering appellee to account for the profits he earned from business obtained in violation of the covenant. Appellant stated at trial, however, that it was no longer seeking monetary damages. This would negate any need for an accounting.

Decree of the lower court is affirmed.


author: PER CURIAM:

text:
    434 A.2d 171
    COMMONWEALTH of Pennsylvania, v. William HOWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 8, 1978.
    Filed Aug. 21, 1981.

      George W. Bills, Jr., Pittsburgh, for appellant.
    Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER, and HOFFMAN, JJ.
   PER CURIAM:

Following a jury trial, appellant was convicted of burglary. The trial court subsequently denied appellant’s post-verdict motions and imposed sentence. No direct appeal was taken. Thereafter, appellant filed a petition pursuant to the Post Conviction Hearing Act (PCHA). After an evidentiary hearing, the post-conviction court concluded that appellant had been denied his right to appeal from judgment of sentence and granted him permission to file this appeal nunc pro tunc.

Appellant contends, inter alia, that his trial counsel was ineffective for failing to secure the testimony of two witnesses. “[C]ounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967) (emphasis in original). If we cannot determine from the record whether counsel had a reasonable basis for not pursuing a claim, we must remand for an evidentiary hearing on that issue. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440, (1975).

In the instant case appellant and his trial counsel testified at the PCHA hearing regarding appellant’s ineffectiveness claim. The post-conviction court, however, did not evaluate the witnesses’ credibility or make any findings of fact. In Commonwealth v. Diggs, 254 Pa.Super. 262, 385 A.2d 1010 (1978), our Court, under similar circumstances, remanded the case for a new evidentiary hearing. The lower court in that case had held a PCHA hearing at which testimony was presented on the petitioner’s claim that his trial counsel had been ineffective. After the hearing the court permitted the petitioner to file a nunc pro tunc appeal to this Court because it concluded that he had been deprived of his right to take a direct appeal from judgment of sentence. In accordance with appellate court decisions, the court did not address the ineffectiveness claim. See, e.g., Commonwealth v. Webster, 466 Pa. 314, 319, 353 A.2d 372, 374 (1975) (“[WJhere a post-conviction court determines that a petitioner is entitled to a direct appeal, no decision should then be made on other bases alleged therein for post-conviction relief.”). On appeal we held that because we did not have the benefit of the post-conviction court’s evaluation of the witnesses’ credibility, it was necessary to remand the case for an evidentiary hearing on the petitioner’s ineffectiveness claim. Accord, Commonwealth v. Sims, 265 Pa.Super. 55, 401 A.2d 797 (1979).

Similarly, we must remand this case for an evidentiary hearing on appellant’s ineffectiveness claim. If, following the hearing, the court determines that appellant was denied effective assistance of counsel, it shall enter an order granting appropriate relief. If, on the other hand, the court determines that appellant received effective representation at trial, it shall reinstate judgment of sentence. Either party aggrieved by the court’s decision may take a new appeal to this Court, as provided by law.

Judgment of sentence vacated and case remanded for proceedings in accordance with this opinion.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq.; 19 P.S. § 1180-1 et seq.

      . Appellant contends also that the evidence adduced at trial was insufficient to sustain his burglary conviction. Having carefully reviewed the record, we conclude that there was ample evidence to support the verdict. Appellant argues also that the lower court erred in its charge to the jury. This issue, which was neither raised at trial nor in post-verdict motions, is not preserved for our review. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) (issue waived if no objection made at trial); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975) (issue waived if not raised in post-verdict motions).

      . Appellant asserts that “it was reversible error for him to be represented at the PCHA hearing by a public defender when he was alleging the ineffective assistance at trial of a member of that same office.” Brief for Appellant at 17. (Appellant’s present counsel is not associated with the public defender’s office.) In Commonwealth v. Bundy, 480 Pa. 543, 391 A.2d 1018 (1978), our Supreme Court held that the appellant was entitled to a new PCHA hearing on his claim of trial counsel ineffectiveness because trial and post-conviction counsel were both members of the public defender’s office. The Court reasoned that to “refuse [new counsel’s] requested remand would restrict appellant to a record created by an associate of the counsel whose competency is at issue.” Id., 480 Pa. at 546-47, 391 A.2d at 1020. Because we are remanding this case for a new evidentiary hearing, appellant will receive all of the relief to which he is entitled.


author: PRICE, Judge: WICKERSHAM, Judge,

text:
    434 A.2d 173
    COMMONWEALTH of Pennsylvania, Appellant, v. Fred BYTHEWAY.
    Superior Court of Pennsylvania.
    Argued June 10, 1980.
    Filed Aug. 28, 1981.

      Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellant.
    D. Michael Emuryan, Milmont Park, for appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   PRICE, Judge:

This appeal is from consolidated orders of the Court of Common Pleas of Delaware County denying the Commonwealth’s petition to extend the time for commencement of trial and dismissing the charges against appellee, Fred Bytheway. The Commonwealth contends it was entitled to an extension of time for commencement of appellee’s trial on the basis of judicial delay. See Pa.R.Crim.P. 1100(c). We disagree and thus affirm the orders entered below.

The relevant facts are these. A criminal complaint charging appellee with burglary was filed on November 23, 1977. Appellee was approved for Accelerated Rehabilitative Disposition (ARD) on January 5, 1978 and, on February 14, 1978, he was placed in a two year probationary program. Shortly thereafter, on February 25, 1978, appellee was arrested and charged with two additional burglaries. The Commonwealth consequently moved for appellee’s removal from the ARD program. This motion was granted on May 5, 1978 and on May 31, 1978, appellee pleaded guilty to all three burglaries. The trial court accepted the guilty plea and, on July 19,1978, sentenced appellee to a term of imprisonment. No direct appeal was taken from the judgment of sentence. On September 26, 1978, appellee filed a Post Conviction Hearing Act (PCHA) petition alleging trial counsel’s ineffectiveness in failing to require a complete guilty plea colloquy. Following a hearing, the trial court permitted appellee to withdraw his guilty plea on January 15, 1978. The case was first listed for trial during the week beginning March 5,1979. It was not reached that week, however, and was, therefore, continued by the trial court until April 2, 1979. The case was once again not reached and the trial court again continued the matter until April 30, 1979. A third continuance, until May 29,1979, resulted when the case was not called for trial during the week of April 30, 1979. Pursuant to section (c) of Pa.R.Crim.P. 1100, the Commonwealth filed a petition on May 9, 1979, seeking an extension of time to commence appellee’s trial. A hearing on the petition to extend was held on May 18, 1979 and, on May 23, the trial court refused to grant the extension. On May 25, appellee filed a motion to dismiss the charges pursuant to Rule 1100(f), which motion was granted on May 29, 1979. This appeal followed.

The first issue presented for our determination is whether the Commonwealth’s petition to extend the time for commencement of appellee’s trial was timely. A petition for an extension of time under Rule 1100(c) must be filed prior to the expiration of the mandatory period (1) prescribed by the Rule, or (2) set forth in a previous order granting an extension of time. Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979); Commonwealth v. Smith, 262 Pa.Super. 258, 396 A.2d 744 (1978); Commonwealth v. Bass, 260 Pa.Super. 62, 393 A.2d 1012 (1978). Failure to file a timely extension petition precludes the granting of an extension because the Commonwealth is not permitted to file a petition nunc pro tunc. Commonwealth v. Shelton, 469 Pa. 8,364 A.2d 694 (1976); Commonwealth v. O’Shea, 465 Pa. 491, 350 A.2d 872 (1976); Commonwealth v. Smith, 262 Pa.Super. 258, 396 A.2d 744.

Instantly, the Commonwealth contends its extension petition was timely since it was filed within 120 days of the January 15, 1979 order permitting appellee to withdraw his guilty plea. Positing that an order permitting withdrawal of a guilty plea after sentence has been imposed is analogous to an order granting a new trial, the Commonwealth argues that, under Rule 1100(e)(1), it had 120 days from the date of such an order within which to commence trial. We agree.

Rule 1100(e) “only establishes when a new trial must commence; it does not attempt to define what constitutes an ‘old trial.’ ” Commonwealth v. Legree, 256 Pa.Super. 128, 132, 389 A.2d 634, 636 (1978). In Legree, we reasoned that there was no substantive basis for treating a new trial following a mistrial differently from a new trial following one which went to a verdict. We thus held that, pursuant to Rule 1100(e)(1), the Commonwealth had 120 days from the date of the mistrial within which to commence the defendant’s new trial. Our supreme court has also held that Rule 1100(e) applies to trials following mistrials just as it applies to new trials resulting from successful post-trial motions or appeals. Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980). Relying primarily on the rationale articulated in Commonwealth v. Legree, supra, the court in Manley observed that:

The mandates of the Sixth Amendment to the United States Constitution and Article 1 Section 9 of the Constitution of this Commonwealth are founded upon a joint concern for the fundamental rights of an accused and for the societal interest in the prompt disposition of criminal cases. Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These concerns exist whether an accused faces trial or retrial ....

Commonwealth v. Manley, 491 Pa. at 466, 421 A.2d at 639 (footnote omitted).

We are thus persuaded that, for purposes of Pennsylvania’s speedy trial rule, there is no substantive basis for distinguishing a trial which follows the withdrawal of a guilty plea from one which follows a mistrial or successful post-verdict motions or appeal. “[T]he reason for the retrial is irrelevant.” Id., 491 Pa. at 466, 421 A.2d at 639. We have previously held that, for purposes of Rule 1100, trial commences when, as here, a guilty plea is tendered by an accused and accepted by the trial court. Commonwealth v. Juliano, 282 Pa.Super. 226, 422 A.2d 1088 (1980). Cf. Commonwealth v. Cox, 276 Pa.Super. 29, 419 A.2d 78 (1980) (actions of trial court in taking guilty plea “under advisement” and ordering presentence report did not commence trial for purposes of speedy trial rule). Trial in the present case thus began on May 31, 1978, the date appellee pleaded guilty. As noted earlier, the trial court accepted the plea and imposed sentence. It would be illogical and incongruous to now hold that a second trial following the withdrawal of appellee’s guilty plea is not a new trial within the purview of Rule 1100(e). The withdrawal of the plea by means of post-conviction proceedings in no way negates the fact that a first trial occurred. Furthermore, were we to conclude that the 120 day period prescribed by Rule 1100(e) is not applicable in cases involving withdrawn guilty pleas, the original 180 day period mandated by Rule 1100(a)(2) would recommence on the date the guilty plea is withdrawn. The Commonwealth would thus be forced to commence two trials within 180 days of the date the criminal complaint was filed. Such a result is neither intended nor required by Rule 1100.

Accordingly, the Commonwealth had 120 days from January 15,1979, the date on which appellee withdrew his guilty plea, within which to commence a new trial. Pa.R.Crim.P. 1100(e)(1). The Commonwealth’s petition to extend was timely, therefore, since it was filed on May 9, 1979, six days prior to the expiration of the 120 day period.

The thrust of the extension petition was that, despite being ready to proceed on each of the occasions on which appellee’s case was scheduled for trial, the Commonwealth was prevented from bringing appellee to trial within 120 days of the withdrawal of his guilty plea because of judicial delay. Specifically, the extension petition alleged that ap-pellee’s case was not reached due to the unavailability of courtrooms and court backlog. The Commonwealth now contends the trial court erred in refusing to grant an extension on the basis of that judicial delay. We do not agree.

Judicial delay may serve as the basis for an extension of time under Rule 1100(c). Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979); Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). For example, an extension is justified “where the Commonwealth is prepared to commence trial prior to the expiration of the mandatory period but the court because of scheduling difficulties or the like is unavailable.” Id., 469 Pa. at 18, 364 A.2d at 699. Before an extension under Rule 1100(c) may be granted, however, the record must show:

(1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Commonwealth v. Mayfield, 469 Pa. at 222, 364 A.2d at 1349-50. The Commonwealth thus has the burden of proving by a preponderance of the evidence that the requirements of Rule 1100(c) have been satisfied. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979).

The record before us fails to support the Commonwealth’s contention that the judicial delay was unavoidable, as required by Commonwealth v. Mayfield, supra. Rather, it strongly suggests that the delay could have been avoided and appellee’s trial commenced within 120 days following the withdrawal of his guilty plea.

The sole witness at the May 18, 1979 hearing on the Commonwealth’s petition to extend was Linda McGough, Assistant Deputy Court Administrator of Delaware County, who testified regarding the scheduling of criminal cases during the period from March 5, 1979 to the first week of May, 1979. Miss McGough testified on cross-examination that representatives from the court administrator’s office, the district attorney’s office, and the public defender’s office meet during the week before a trial term to determine the priority of cases for trial. When asked the manner in which priority is determined, Miss McGough stated: “The standards that we use are the ABA standards/1 jail before bail, the old cases before the new cases, specially assigned cases, seriousness of the offense.” (N.T. 48). Despite these scheduling priorities, Miss McGough testified that at least eleven of the seventeen criminal jury trials held in Delaware County between March 5 and May 9, 1979 involved defendants who, like appellee, were awaiting trial while on bail. None of the prosecutions in those cases began prior to November 23, 1977, the date on which the first burglary charge was filed against appellee. Indeed, in three cases, the defendants were arrested on criminal complaints filed in 1979. Appellee’s case was thus older than any of the seventeen cases tried during the period in question. Furthermore, ten of the seventeen cases tried involved crimes less serious than the burglaries with which appellee was charged, and only three of the cases were specially assigned. On the basis of the assistant deputy court administrator’s testimony, we agree with the court below that “[appellee’s] case could have been listed and tried had the priority procedures been followed.” Slip op. at 5. Having failed to prove that the judicial delay could not be avoided, the Commonwealth was not entitled to an extension of time within which to commence appellee’s trial. See Commonwealth v. Crowley, 11 Pa.Super. 26, 421 A.2d 1129 (1980), allocatur granted (No. 81-3-373, February 23, 1981).

The orders of the court of common pleas denying the Commonwealth’s petition to extend and dismissing the charges against appellee are, therefore, affirmed.

WICKERSHAM, J., files a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

I dissent because I believe that the majority misconstrues the test contained in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976) for determining whether judicial delay may serve as the basis for an extension of time for trial under Pa.R.Crim.P. 1100(c). The majority construes the Mayfield test as requiring a record showing that the judicial delay was unavoidable. Because the record in the instant case suggests that the delay in trying Bytheway could have been avoided had the trial court given him priority over other cases, the majority concludes that the Commonwealth failed to meet its burden of proof.

The record before us fails to support the Commonwealth’s contention that the judicial delay was unavoidable, as required by Commonwealth v. Mayfield, supra. Rather, it strongly suggests that the delay could have been avoided and appellee’s trial commenced within 120 days following the withdrawal of his guilty plea.

Maj. op. at 177.

I do not agree.

Mayfield does not require a record showing that the judicial delay was unavoidable but only that the trial court exercised due diligence in its efforts to proceed within the prescribed period. The court stated in Mayfield that:

[t]his Court is aware that, despite diligent efforts by the trial courts, cases may arise when a trial of a defendant cannot be held within the prescribed period. In such circumstances, the policies which prompted the adoption of rule 1100 would not be served by disallowing a reasonable, limited extension specifying “the date or period within which trial shall be commenced.” Pa.R.Crim.P. 1100(c). The rule recognizes that “due diligence” is the most that should be demanded from the prosecutor and that if despite such efforts, he cannot prepare for trial within the prescribed period, an extension is permissible. No more rigid result under our present rule is justified when the inability of a trial court to proceed within the prescribed period is at issue.

Commonwealth v. Mayfield, id., 469 Pa. at 220, 364 A.2d at 1348—49.

In the instant case, the Assistant Deputy Court Administrator, Linda M. McGough, testified in great detail concerning the scheduling difficulties that the court encountered in bringing Bytheway to trial, and I believe that the standard of due diligence was met. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). Accordingly, I would reverse and remand for trial.

      . Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq., as amended, repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a) (1397), effective June 27, 1980. The Post Conviction Hearing Act is presently implemented by Pennsylvania Rules of Criminal Procedure 1501 through 1506.

      . Pa.R.Crim.P. 1100(c) provides:
      At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.
      The extension petition filed by the Commonwealth on May 9, 1979 was the second such petition filed in the instant case. The Commonwealth had previously filed a petition to extend on February 5, 1979, but withdrew that petition at the close of a hearing on February 28, 1979. Furthermore, on April 20, 1979, appellee filed a motion to dismiss the charges pursuant to section (f) of Rule 1100, which provides, in part, that “[a]t any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this Rule has been violated.” Appellee’s motion to dismiss was denied on April 30, 1979.

      . Appellee’s earlier motion to dismiss the charges under Rule 1100(f) was denied. See note 2, supra.

      . Pa.R.Crim.P. 1100(e)(1) provides that “[w]hen a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.”

      . In pertinent part, we stated:
      First, for the purpose of Rule 1100, trial had commenced on September 10, 1975, and it is not logical to hold that a subsequent event which caused a mistrial eradicated the fact of the trial’s commencement as if it never existed. Second, the scheduling problems which follow the granting of a mistrial are not substantially greater than those which follow the granting of a new trial when no appeal is taken. Finally, applying Rule 1100(e)(1) to mistrial would not create the gaping loophole in Rule 1100 that the Supreme Court refused to afford to the use of nolle prosequis in Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976). The principal difference is that, subject to the court’s approval, nolle prosequis may be voluntarily taken by the Commonwealth despite the defendant’s objection. Pa.R.Crim.P., Rule 314. That is not the case with mistrials which, on the contrary, may be granted only on defendant’s motion or on motion of court, despite the Commonwealth’s objection. Pa.R.Crim.P., Rule 1118. Furthermore, if the Commonwealth deliberately provokes a mistrial in order to gain the extension of time to which it would not be entitled under Rule 1100(c), the double jeopardy clause of the constitution operates as a bar to further prosecution. Commonwealth v. Bolden, 472 Pa. 602, 640-43, 373 A.2d 90 (1977).

        Commonwealth v. Legree, 256 Pa.Super. 128, 132, 389 A.2d 634, 636 (1978). See also Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979).

      . “When a case has possible Rule 1100 problems, prosecutors must do everything reasonable within their power to see that the case is tried on time.” Commonwealth v. Smith, 477 Pa. 424, 428, 383 A.2d 1280, 1282 (1978).

      . March 5, 1979 was the first trial date assigned to appellee’s case at the time he withdrew his guilty plea. As noted earlier, the case was continued three times, on March 8, April 6, and May 9, 1979.

      . The ABA Standards Relating to Speedy Trial § 1.1 (Approved Draft, 1968), provide, in pertinent part, that:
      [t]o effectuate the right of the accused to a speedy trial and the interest of the public in prompt disposition of criminal cases, insofar as is practicable:
      (a) the trial of criminal cases should be given preference over civil cases; and
      (b) the trial of defendants in custody and defendants whose pretrial liberty is reasonably believed to present unusual risks should be given preference over other criminal cases.

      . “Unavoidable” is defined in Black’s Law Dictionary as incapable of being prevented. Black’s Law Dictionary 1366 (5th ed. 1979).


author: WICKERSHAM, Judge:

text:
    434 A.2d 179
    COMMONWEALTH of Pennsylvania, v. Kevin WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1979.
    Filed Aug. 28, 1981.

      Ronold J. Karasek, Bangor, for appellant.
    Michael Vedomsky, Assistant District Attorney, Easton, did not file a brief on behalf of Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and ROBERTS, JJ.

       Justice SAMUEL J. ROBERTS of the Supreme Court of Pennsylvania is sitting by designation.

   WICKERSHAM, Judge:

On March 12, 1979, appellant, Kevin Williams, was found guilty by a district magistrate court of failing to stop for a steady red signal in violation of 75 Pa.C.S. § 3112(a)(3)(i). The district magistrate court imposed a fine in the amount of twenty-five dollars ($25.00) plus costs. Appellant appealed the case to the Court of Common Pleas of Northampton County, where, on May 14, 1979, this case was heard de novo.

The testimony at the trial de novo established that on February 6, 1979, at approximately 8:40 a.m., Richard Lu-tack was driving his car through an intersection in Easton, Pennsylvania, when it was hit by a car driven by appellant. The intersection had a traffic-control signal, and there was conflicting testimony as to whether Mr. Lutack or appellant had a green light at the time of the accident. At the end of the trial, the lower court found appellant guilty of the summary offense and imposed the mandatory fine of twenty-five dollars ($25.00) plus costs. This appeal followed.

Appellant raises several issues on appeal, but we are unable to consider these issues for the following reasons. There is no indication in the record that appellant made any post-verdict motions in accordance with Pa.R.Crim.P. 1123. Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981). Appellant does not allege on appeal that his waiver was unintelligent or involuntary or that the trial court failed to comply with Pa.R.Crim.P. 1123(c) (duty of trial court to advise defendant, after verdict, of right to file post-verdict motions and consequences of failure to so file).

As we stated in Commonwealth v. Koch, supra, there has been a divergence of opinion in this court as to whether we should conduct a sua sponte review of the record for the purpose of determining whether the lower court has complied with Rule 1123(c).

Several cases have held that the absence of a specific allegation by appellant that his waiver was unintelligent or involuntary precludes as independent review of the record. Commonwealth v. Tegano, 265 Pa.Super. 453, 402 A.2d 526 (1979); Commonwealth v. Smith, 258 Pa.Super. 148, 392 A.2d 727 (1978); Commonwealth v. Harmon, [267] Pa.Super. [224], 406 A.2d 775 (1979). However, another line of decisions mitigates the harshness of the automatic waiver rule by reasoning that if the record is devoid of an 1123 colloquy by the lower court then appellant cannot be found to have knowingly waived his rights thereunder. Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978); Commonwealth v. Steffish, 243 Pa.Super. 309, 365 A.2d 865 (1976).

Id., 288 Pa.Super. 290, 431 A.2d 1052.

In the instant case, we have engaged in a sua sponte review of the record, because this court recognized in Koch that there has been confusion among the members of the practicing bar and the judiciary concerning the applicability of Rule 1123 to summary convictions.

[Heretofore, no explicit statement was contained within the rules themselves. In fact this ambiguity was recently rectified by a revision to the comments to Rule 1123 enacted April 24, 1981.... The necessity of this revision bespeaks the confusion which existed in the minds of the members of the practicing bar as well as the judiciary. As exemplified by the instant case, many judges who regularly preside over de novo proceedings in summary conviction cases, render verdict and sentence at the same time thereby failing to advise the defendant of his 1123 rights.

Id., 288 Pa.Super: at 290, 431 A.2d 1052. (footnote omitted).

The record in this case does not indicate that the lower court informed appellant of his right to file post-verdict motions, of the time within which he must file such motions, of the consequences of his failure to do so, and of his right to counsel in the filing of those motions and on appeal as required by Rule 1123(c). The lower court’s only actions were to find appellant guilty and to thereupon impose sentence. If trial counsel had understood the necessity of filing post-verdict motions, there was no opportunity to do so in the instant case. Under these circumstances, we conclude that appellant did not knowingly and intelligently waive his right to file post-verdict motions, and it is, therefore, necessary to remand this case to the court below for the filing of post-verdict motions nunc pro tunc. Commonwealth v. Koch, supra; Commonwealth v. Edwards, 268 Pa.Super. 202, 407 A.2d 1316 (1979).

Judgment of sentence vacated and the cause remanded for proceedings consonant with this opinion.

      . See Pa.R.Crim.P. 67.

      . See 75 Pa.C.S. § 6502(a) and (b).

      . In Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981), we determined that it was evident that neither counsel nor the lower court in that case were aware of the relevancy of Pa.R. Crim.P. 1123 to the summary conviction and, therefore, it would be unconscionable to find a waiver of post-verdict motions. Id, 288 Pa.Super. at 290, 431 A.2d 1052.

      . Post-verdict motions must be decided before sentencing. Commonwealth v. Hill, 282 Pa.Super. 462, 466, 422 A.2d 1385, 1387 (1980); Commonwealth v. Middleton, 242 Pa.Super. 421, 364 A.2d 342 (1976).


text:
    434 A.2d 181
    COMMONWEALTH of Pennsylvania, Appellant, v. George H. BRADSHAW.
    Superior Court of Pennsylvania.
    Argued May 26, 1981.
    Filed Aug. 28, 1981.

      Ellen Mattleman, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Edward Reif, Philadelphia, for appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   WICKERSHAM, Judge:

This is an appeal from an order granting appellee’s motion to suppress evidence. The sole issue presented is whether evidence obtained pursuant to a facially valid search warrant should be suppressed because the informant’s tip, which was reasonably believed by the governmental affiant, was based on a deliberate misstatement.

The pertinent facts are as follows. On April 14, 1980, silver and jewelry worth over $30,000 were stolen from a house in Media, Pennsylvania. The next day, the Philadelphia police received a tip from a reliable informant stating that he was with appellee, George Bradshaw, in his home during the late evening of April 14, 1980 and that he saw silver and jewelry stolen from a home in Media. After verifying the occurrence of such a burglary in Media, the Philadelphia police obtained a warrant that same day to search Bradshaw’s house. While conducting the search, the police found the silver and jewelry which was taken during the burglary in Media.

A suppression hearing was held on October 31, 1980. Bradshaw testified that on the night of the burglary he was in Atlantic City, New Jersey from approximately 7:15 p. m. until 4:00 a. m. Appellee’s testimony was supported by three witnesses and various bills and receipts from Atlantic City establishments. The suppression court concluded that Bradshaw had spent the evening of the burglary in Atlantic City and, accordingly, found that the informant had falsely reported to the police affiant that he saw the stolen items in appellee’s house and in appellee’s presence. The court then suppressed the evidence because of the informant’s misrepresentation even though it concluded that the search warrant was facially valid and that it had been obtained in good faith by the police on what appeared to be reliable information.

The fourth amendment prohibits “unreasonable searches” and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation . .. . ” U.S. Const, amend. IV. To safeguard this guarantee, the exclusionary rule prohibits the admission of evidence seized in violation of the fourth amendment in both federal courts, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and state courts, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The question we must now decide is whether the criminal defendant’s fourth amendment rights were violated because the police officer’s affidavit was based on a deliberate misrepresentation by the informant.

The United States Supreme Court has recently dealt with a similar case in which false statements were allegedly included in the affidavit supporting the search warrant. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In Franks, it was held that a court must invalidate the warrant and suppress the fruits of the search if the criminal defendant can prove that the affiant made deliberate misstatements or made statements with reckless disregard for the truth and these statements were necessary to the finding of probable cause. Even though the instant case concerns an intentional misstatement by the informant, not the governmental affiant, the rationale and dicta of Franks is instructive.

The Court in Franks began its analysis by noting that the warrant clause of the fourth amendment is premised on the affiant’s good faith. Id. at 164, 98 S.Ct. at 2680, 57 L.Ed.2d at 677. The requirement that a warrant be supported by an “Oath or affirmation” presupposes that there is a truthful factual showing sufficient to establish probable cause. Id. at 164-65, 98 S.Ct. at 2680, 57 L.Ed.2d at 677-678. The facts recited in the affidavit must be truthful, however, only to the extent “that the information put forth is believed or appropriately accepted by the affiant as true.” Id. at 165, 98 S.Ct. at 2681, 57 L.Ed.2d at 678. The Supreme Court then stated that “[t]he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” Id. at 171, 98 S.Ct. at 2684, 57 L.Ed.2d at 682.

Numerous federal courts have interpreted Franks to hold that a criminal defendant may only challenge a search warrant by attacking the veracity of the affiant and not the veracity of the informant. See United States v. Barnes, 604 F.2d 121 (2nd Cir. 1979); United States v. Edwards, 602 F.2d 458 (1st Cir. 1979); United States v. Weingartner, 485 F.Supp. 1167 (D.N.J.1979). The court in United States v. Brian, 507 F.Supp. 761 (D.R.I.1981) stated that “[t]he question is whether agent Conley [government affiant] accurately and truthfully represented what the informants told him, not whether the informants lied to agent Conley.” Id. at 764 (citations omitted). Although we believe that the limitation in Franks permitting veracity challenges of the affiant but not of the informant is dicta and, therefore, not controlling, we find the limitation to be logical and necessary.

First, the constitutional prohibition of the fourth amendment is against unreasonable searches, not searches based on inaccurate data. As the Supreme Court in Franks noted, the oath or affirmation presupposes that the affidavit is truthful only to the extent that it is reasonably believed by the affiant. If, therefore, the affiant has a reasonable belief in the truthfulness of the information contained in the affidavit, even though a mistaken one, the fourth amendment’s protection against unreasonable searches and seizures is not violated. See United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973 (en banc).

Second, we note that permitting challenges to an informant’s veracity is inconsistent with the traditional conception of the exclusionary rule as a balance between competing social values: deterrence of police misconduct, on one hand, and conviction of guilty persons, on the other. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Good faith errors like the instant police officer’s belief in the informant’s misstatement cannot be deterred. Such challenges, therefore, would have no potential deterrence on unreasonable police behavior, yet guilty persons would go free—obviously an unacceptable situation.

Finally, we note that the evidence obtained pursuant to such a search is not likely to be misleading for, no matter how it is obtained, the probative value of physical evidence remains the same.

In conclusion, we acknowledge that Pennsylvania courts do, of course, have the right to increase the substantive and procedural constitutional mínimums set forth in Franks. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979); Pa.Const. art. 1, § 8. Long before Franks was even decided, it was well established that criminal defendants in Pennsylvania had the right to go beyond the “four corners” of the search warrant and challenge deliberate and material misstatements by the governmental affiant. Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973); Commonwealth v. D’Angelo, 437 Pa. 331, 263 A.2d 441 (1971); Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980); Commonwealth v. Scavincky, 240 Pa.Super. 550, 359 A.2d 449 (1976). For the foregoing reasons, however, we find no logical or convincing arguments for extending veracity challenges to informants under the Pennsylvania Constitution.

Order of the lower court reversed.

      . The Commonwealth has alleged that the order of the lower court granting the motion to suppress will substantially handicap its prosecution of appellant. This appeal is, therefore, properly before us. Commonwealth v. Martz, 259 Pa.Super. 201, 393 A.2d 787 (1978).

      . Appellee alleges that the Commonwealth has waived this issue because it failed to object to the admission of the evidence allegedly proving that the informant deliberately lied. In light of our holding, the admission of the evidence in question is immaterial.

      . For a discussion of Franks v. Delaware, see 32 Baylor L.Rev. 369 (1980) and 1980 Ill.L.F. 601.

      . Black’s Law Dictionary defines dicta, in pertinent part, as follows: Expressions in court’s opinion which go beyond the facts before court and therefore are individual views of author of opinion and not binding in subsequent cases.
      Black’s Law Dictionary, 408 (5th ed. 1979).


author: BROSKY, Judge:

text:
    434 A.2d 183
    David H. SPEICHER and Beverly Speicher, his wife, Appellants, v. Tony REDA and Delilah Reda t/d/b/a Duffy’s Tavern and Donald H. Reynolds.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1981.
    Filed Aug. 28, 1981.

      Leonard E. Price, Pittsburgh, submitted a brief on behalf of appellants.
    Harry K. McNamee, Butler, for appellees.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   BROSKY, Judge:

Appellants, David Speicher and Beverly Speicher, instituted an action against appellees, Tony Reda and Delilah Reda, trading as Duffy’s Tavern, pursuant to 47 Pa.C.S.A. § 4—497, which subjects a licensee to liability for serving a “visibly intoxicated” person liquor. A compulsory nonsuit against appellants was granted at the end of their case at trial. A motion to set aside the nonsuit was denied, and this appeal followed. We do not agree with the trial court’s analysis and therefore reverse.

On July 2, 1975, at 1:10 a. m., five or ten minutes after leaving Duffy’s Tavern, Donald Reynolds was travelling along a highway when his car struck a motorcycle operated by David Speicher. Speicher was severely injured. The policeman who investigated the accident, Officer Beal, described Reynolds as:

Well, upon my interviewing Mr. Reynolds a strong odor of alcoholic beverage was detected. The operator didn’t know that he hit anyone, and he had trouble standing. As Mrs. Sloan said, he had slurred speech, a staggering gait. Mrs. Sloan, a photographer whom the police engaged to

take photographs of the accident scene testified:

Urn, he was interfering with me taking the photographs. He kept telling me—he was visibly drunk and kept telling me that I wasn’t going to take any pictures of his, quote, “God damn car,” unquote, and every time I’d go to take one he would step in front of me staggering wise, and it got to the point—usually in a situation like this I can work around people, you know, but this one got to the point where I had to go to the police officer and have him remove him while I took the pictures.
Officer Beal also stated:
Q. Okay. And by the way, touching for a minute on what Mrs. Sloan said about requesting cooperation from the police to have Mr. Reynolds stand aside, were you the one she requested, or was it one of the Township police? A. It was myself, I recall her coming up to me and telling me that she was having a difficult time with him. Donald Reynolds refused to take a breathalyzer examina-

tion. Officer Beal testified in this regard:

Yes, sir. I requested he submit to a breathalyzer or a blood alcohol content taken by a physician, of which he refused.

Reynolds subsequently pleaded guilty to driving under the influence of alcohol.

Donald Reynolds testified that he did not remember any of the events which occurred during the accident. He testified:

Do you remember seeing David Speicher’s motorcycle? No.
Do you remember crossing the center line?
No.
Do you remember hitting the motorcycle?
No.
Do you remember knocking his motorcycle into the guardrail?
No.

The appellants did not present any testimony regarding Reynolds’ condition while at Duffy’s bar. The trial court granted a compulsory nonsuit because it held there was no evidence that the licensee or its employees served Reynolds while he was “visibly intoxicated.”

In Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 135, 359 A.2d 822, 825 (1976), we said:

On appeal from a compulsory non-suit the plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiff’s favor. A compulsory nonsuit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion. Paul v. Hess Bros., 226 Pa.Super. 92, 94-95, 312 A.2d 65, 66 (1973) (citations omitted). In a trespass case, a plaintiff need not exclude every other reasonable possibility that could have caused the accident. “It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability.” Jones v. Treegoob, 433 Pa. 225, 230, 249 A.2d 352, 355 (1969).

(Emphasis added). Couts v. Ghion 281 Pa.Super. 129, 421 A.2d 1184 (1980), Gill v. McGraw Electric Co., 264 Pa.Super. 368, 399 A.2d 1095 (1979).

The evidence, when viewed in light of this standard, indicates that Reynolds was visibly intoxicated to police and to Ms. Sloan. He was belligerent and subsequently unable to recall any of his actions. In addition, Reynolds pleaded guilty to driving under the influence of alcohol. And, the record discloses that the last location where Reynolds was located before entering his car was Duffy’s tavern.

A recent case very much in point is Couts v. Ghion, supra, 281 Pa.Super. at 142, 421 A.2d 1188, there, this court stated:

Viewing the evidence in light of these principles, we conclude that the issue of whether Ghion was visibly intoxicated when he was served his last drink at the Holiday House bar should have been submitted to the jury. Evidence presented at trial established that Ghion had consumed a substantial amount of alcohol before being served his last drink; that Ghion had driven erratically and without using his car’s lights in the dark; and that Ghion had appeared intoxicated to the investigating police officer. Additionally, improperly excluded evidence of Ghion’s blood alcohol content (see infra) would have lent further support to an inference that Ghion may have been visibly intoxicated at the Holiday House bar. Despite the lack of direct evidence bearing on Ghion’s condition when he was served his last drink, we think that the jury could have reasonably concluded that he was visibly intoxicated at that time. Accordingly, we hold that the lower court erred in refusing to take off the compulsory nonsuit entered in favor of Holiday House.

(Emphasis added.)

However, the trial court relied upon our reasoning in Simon v. Shirley, 269 Pa.Super. 364, 409 A.2d 1365 (1979), in which we held that the lower court properly ordered summary judgment in favor of the tavern owners. There, the only evidence submitted at trial and agreed to by all the parties was that an accident occurred within one hour after the defendant left the tavern. Appellants, therein, argued that 47 Pa.C.S.A. § 4-493(1), regarding the liability for a licensee to an injured third party for serving a minor was applicable. However, subsequent to the incident in Simon v. Shirley, supra., the General Assembly enacted 47 Pa.C.S.A. § 4-497. 47 Pa.C.S.A. § 4-497 alternatively required a showing of visible intoxication in order to find a licensee liable for serving a person who injures a third person. We affirmed the trial court’s decision to grant summary judgment.

In Keating v. Zemel, 281 Pa.Super. 129, 421 A.2d 1181 (1980), we held:

Summary judgment may only be granted “if the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b).

Id., 281 Pa.Super. at 131, 421 A.2d at 1182. In light of this standard, we affirmed the trial court’s decision in Simon v. Shirley, supra., because there was no disputed evidence regarding the visibility or nonvisibility of the minor appellant’s actions. In other words, the appellant’s counsel argued that liability should attach because the appellant was a minor, 47 Pa.C.S.A. § 4-493, rather than arguing facts from which the trial court could have found sufficient circumstantial facts to warrant a denial of the motion for summary judgment.

In Couts v. Ghion, supra., the parties presented evidence from which visible intoxication could be proven circumstantially. The record disclosed the appellant in Couts v. Ghion, supra., had an odor of alcohol, walked in a swaggering fashion and had slurred speech, in addition to evidence that an accident had occurred. Apart from the dissimilarity between issues in Simon v. Shirley, supra., (summary judgment) and Couts v. Ghion, supra., (compulsory nonsuit), the facts in Couts v. Ghion, supra., indicated that circumstantial evidence would prove that the appellant therein was visibly intoxicated. Furthermore, to resolve the issue of the legitimacy of the order of a compulsory nonsuit, we must determine, viewing the evidence to the plaintiff’s benefit, whether a compulsory nonsuit was entered upon a showing of “a clear case where the facts lead unerringly to but one conclusion,” Paul v. Hess Bros., 226 Pa.Super. 92, 94-95, 312 A.2d 65, 66 (1973), rather than the lack of any genuine issue in dispute required for the granting of a motion for summary judgment. Certainly, our review of cases involving similar facts but different issues may result in different results.

Therefore, the facts and issues presented in Simon v. Shirley, supra., and Couts v. Ghion, supra., are quite distinguishable from one another. The appropriate analysis in the instant case must rely on that presented by this court in Couts v. Ghion, supra. Clearly, the facts in the instant case are similar to those found in Couts v. Ghion, supra., with the exception that even more persuasive evidence, that Reynolds pleaded guilty to driving while under the influence of alcohol, exists in the appellant’s case. We believe that our decision in Couts v. Ghion, supra., requires that the appellant’s motion to set aside the compulsory nonsuit should have been granted. Accordingly, the order of the trial court is reversed, and a new trial is ordered.

SHERTZ, J., concurs in result.

      . Prior to trial, appellants settled any claims against Donald Reynolds for the limit of his coverage of his automobile insurance policy. Appellants granted Reynolds a release.

      . We are aware that evidence of the guilty plea is sought to be used not only in a subsequent civil litigation but specifically as it relates to a third party. Compare Cromley v. Gardner, 253 Pa.Super. 467, 385 A.2d 433 (1978); Cusatis v. Reichert, 267 Pa.Super. 247, 406 A.2d 787 (1979). In the instant case, however, no objection was made to the admissibility of that evidence. Thus, we present no discussion on that issue herein.

      . Liquor Code 47 Pa.C.S.A. Section 4—497 states:
      No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensee or his agent, servant or employe when the said customer was visibly intoxicated.


author: BROSKY, Judge-

text:
    434 A.2d 187
    Joseph D. NEVLING and Francis Elensky, Administrators d/b/n/c/t/a of the Estate of Abraham Nevling, Deceased, Appellants, v. Joanne C. NATOLI, Jack Carns and James Carns, Devisees of Edgar Nevling and Margaret Nevling Carns.
    Superior Court of Pennsylvania.
    Submitted April 30, 1981.
    Filed Aug. 28, 1981.

      Carl A. Belin, Jr., Clearfield, for appellants.
    James K. Nevling, Clearfield, for appellees.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   BROSKY, Judge-

Appellants commenced this action to quiet title against appellees claiming ownership of rights to coal located below the surface of a certain tract of land located in Clearfield County.

Appellees claim title to both the surface and underlying coal rights by inheritance from one who received his title by deed.

Appellants argue that the deed conveyed an interest only in the land surface and allege that the lower court erred in its decision to grant appellees’ motion for judgment on the pleadings. Specifically, appellants contest the lower court’s conclusion that the deed clearly conveyed to appellees’ predecessor in title, interests in both the surface and the coal. Appellants also contend that the lower court erred in holding that they could not be found to have adversely possessed the subject property. We agree with appellants’ contentions and reverse the order.

In reviewing the order of the lower court, we are guided by the following principles. To grant a motion for judgment on the pleadings, the court must be confronted with a very clear case; if there is any issue of fact which is unresolved, the motion should not be granted. Coal Operators Casualty Co. v. Charles T. Easterley and Co., Inc., 440 Pa. 218, 221, 269 A.2d 671, 672 (1970). See also Eckborg v. Hyde-Murphy Co., 442 Pa. 283, 276 A.2d 513 (1971). A judgment on the pleadings should not be granted unless the moving party’s right to prevail is “so clear that ‘a trial would clearly be a fruitless exercise’ ...” Wade v. Heisey, 243 Pa.Super. 8, 364 A.2d 423 (1976) (citing cases). All of the well pleaded allegations of the party opposing the motion must be accepted as true, while only those facts specifically admitted by the party opposing the motion may be considered against him. Wade v. Heisey, supra.

The pleadings filed in the present case reveal the following facts. Appellants and appellees are heirs of Abraham Nevling who, until his death on July 2, 1904, was the owner of the subject premises which was comprised of 159 acres and 121 perches of coal and approximately 105 acres of surface overlying the coal. The remaining 54 acres of surface had earlier been sold to one of his daughters.

In his holographic will, Mr. Nevling made separate devises of the surface and coal interests. His will provided in pertinent part:

ARTICLE FOURTH: I direct that in case I do not dispose of the coal under the old homestead farm or what is known as the Lionell place during my lifetime, then and in such case I direct that the coal be sold or leased by my executor to the best advantage and the proceeds divided equally among the above mentioned heirs herein mentioned.
* * *
ARTICLE SIXTH: I direct that all the residue or remainder of my land being the surface only after deducting the 54 acres deeded to my daughter, Jane Merifield, be sold to the best advantage by my executor and the proceeds of such sale be distributed among my ten heirs already mentioned.

L. Z. Nevling, named executor in Abraham Nevling’s will, served in that capacity until his death in 1928. Neither the coal nor surface rights were sold during L. Z. Nevling’s tenure as executor. Following his death, Letters of Administration d.b.n.c.t.a. were granted to Clayton Nevling who made the conveyance in question to Edgar Nevling by deed of March 12, 1943.

The deed to Edgar Nevling conveyed the following property.

BEGINNING at a post corner of Samuel K. Hegarty’s survey in the line of James H. Hegarty; thence by lands of James H. Hegarty, South one and a half (IV2) degrees West seventy-seven (77) perches to a post where an old hickory formerly stood; thence by lands of Lionel Weld and Aaron Weld, North eighty-eight and a half (88V2) degrees West two hundred and thirty-one (231) perches to an old dogwood corner burnt down; thence by lands commonly called Broadhead surveys, North one and a half (1%) degrees East, one hundred and sixty-two (162) to a hemlock; thence by lands lately belonging to John Spangle, South eighty-eight and a half (88V2) degrees East one hundred and sixteen (116) perches to a post of said John Spangle’s survey; thence by lands surveyed for Samuel K. Hegarty South one and a half (IV2) degrees West eighty (80) perches to a dead hemlock; thence by same South eighty-eight and a half (88V2) degrees East one hundred and twelve (112) perches to the place of beginning and containing one hundred and fifty-nine (159) acres and one hundred and twenty-one (121) perches and usual allowance. Being part of a larger tract of land surveyed under Warrant to John Funk.
EXCEPTING AND RESERVING THEREFROM, HOWEVER, all that certain tract or parcel of land conveyed by Abraham Nevling on September 12, 1894, by deed recorded in Deed Book 120, page 137, to Jane Marefield, otherwise known as Jane Merrifield, who by deed dated April 22,1929, recorded in Deed Book 291, page 263, conveyed to Nellie Nevling such premises being described as follows:

Upon Edgar Nevling’s death on November 2, his title to the premises descended by his will to his sister, Margaret Nevling Cams. Upon her death on January 5, 1970, title descended to her three children, Joanne C. Natoli, Jack Cams and James Cams, the present appellees.

On April 9, 1979, appellants commenced this action to quiet title averring that the coal underlying the above described street was not conveyed by the 1942 deed to Edgar Nevling and seeking to have title declared to rest in them as administrators d.b.n.c.t.a. of the Estate of Abraham Nevling. Appellants cite that portion of the deed wherein title is recited as support for their position. That portion of the deed states:

The present conveyance comprises one hundred and five (105) acres, more or less, out of the said one hundred and fifty-nine (159) acre tract which the Executors and Trustees of Hardman Philips conveyed to Abraham Nevling, by deed dated May 30, 1864, recorded in Deed Book “AA”, page 647 and the said Abraham Nevling being so thereof seized, died testate on the 2nd day of 1904 and by his Will dated the 19th day of September, 1901, remaining of record in Clearfield, in Will Book “M” page 46, devised the coal hereunder to his Executor for the purpose of lease or sale for the benefit of all the heirs and empowered his Executor, L. Z. Nevling, to sell the surface.

Appellants claim that this section of the deed indicated that only the surface was to be conveyed. The lower court dismissed that argument saying that a recital in a deed cannot diminish a grant contained elsewhere in the instrument. After finding appellants’ claim to ownership by adverse possession to be deficient, the court granted appel-lees’ motion.

We cannot agree that it is clear and free from doubt that the deed to Edgar Nevling conveyed both surface and coal interests.

Appellees’ answer to appellants’ complaint includes an averment that the quoted recital “is a mistaken and improper interpretation of the will of Abraham Nevling . . . and incorrectly interpreted the will of Abraham Nevling to sell only the surface of the land. .. . ” Appellees’ own pleading admits that the quoted portion of the deed could be interpreted as an indication that its draftsman believed that the grantor could convey only surface rights. We need not and will not determine whether the quoted clause actually had that meaning. What is important to the case before us is that it could have such significance. If that were the meaning of the section, how could the deed be seen as a grant of the coal rights also? After all, our primary object [in construing the terms of a deed] is to ascertain and effectuate the intention of the parties. In Re Conveyance of Land Belonging to City of DuBois, 461 Pa. 161, 335 A.2d 352 (1975). If the quoted language has the meaning ascribed to it by both parties, then the deed from the grantor contains an expression of a limitation of his power.

A deed is to be interpreted in light of the conditions existing when it was executed. The entirety of the language is to be considered. In Re Conveyance of Land Belonging to City of DuBois, supra (emphasis added). In Hardes v. Penn Charcoal & Chemical Co., 175 Pa.Super. 431, 107 A.2d 176 (1954), this court refused to accept the “inflexible” rule of property that the interest conveyed by a granting clause is not be cut down by what follows in the description. We based our rejection of such a rule in part on our belief that such a construction would require an utter disregard of the terms of a reservation of certain acreage which was found in a paragraph containing inter alia, a recital of consideration and chain of title. The court wrote, “It is also a cardinal rule of construction of deed that no part shall be rejected if it can be given a meaning.” Id., 175 Pa.Super. at 436, 107 A.2d at 178.

Considering the language of the entire deed in the present case, it cannot be said that it is clear and free from doubt that the deed conveyed both surface and coal rights. A trial to determine what was conveyed to Edgar Nevling would not be a fruitless gesture.

We come next and finally to appellants’ claim that, if the deed is found to have conveyed all rights in the land to appellees, appellants nonetheless are entitled to a trial to prove their claim of ownership by adverse possession.

The lower court granted the motion for judgment on the pleadings as to this claim because it believed that appellants had not adequately pleaded adverse possession. The court stated that for purposes of this case, all parties are co-tenants and therefore appellants must plead and prove ouster as well as the other requisites of adverse possession in order to prevail. No averment of ouster was made by appellants in their pleadings.

It is true that one co-tenant cannot claim adverse possession against another co-tenant unless there is an ouster of the latter. Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949). However, if the lower court finds on remand, as it did before, that appellees received title to the coal rights through the deed, then appellants are no longer co-tenants. In that event, proof of hostile, adverse, open, visible, notorious and continuous possession for a period of at least 21 years would vest adverse possession in appellants. See Smith v. Peterman, 263 Pa.Super. 155, 397 A.2d 793 (1978).

Although appellants’ complaint did not use the above quoted language, it was understood by all parties and the lower court to contain an averment of adverse possession.

Therefore, if appellees received title to the coal rights, trial on appellants’ claim to title by adverse possession would not be a fruitless gesture.

The order is reversed and the case is remanded to the lower court for trial.

      . We note additionally that in passing on a motion for judgment on the pleadings, the court may consider only the pleadings themselves and any documents properly attached to the pleadings. Wade v. Heisey, supra. The “exhibits” discussed and included in appellants’ supplemental brief were not attached to the pleadings and will not be considered by us. Furthermore, evidence not introduced in the trial court cannot be submitted on appeal. Temple University v. Zoning Board of Adjustment of Cheitenhen Township, 414 Pa. 191, 199 A.2d 415 (1964), Platt v. City of Philadelphia, 183 Pa.Super. 486, 133 A.2d 860 (1957).


author: WIEAND, Judge: SHERTZ, Judge,

text:
    434 A.2d 191
    COMMONWEALTH of Pennsylvania, v. Cecil David BARNHART, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Aug. 28, 1981.

      Alphonse P. Lepore, Jr., Uniontown, for appellant.
    Gerard R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SHERTZ and WIEAND, JJ.
   WIEAND, Judge:

Cecil David Barnhart was tried by jury and was convicted of burglary and criminal conspiracy. After post trial motions had been denied and sentence imposed, Barnhart appealed on the grounds that (1) the verdict was against the weight of the evidence and (2) that the trial court erred in denying a defense motion for mistrial when a co-conspirator, testifying as a Commonwealth witness, mentioned other burglaries committed earlier during the same evening. We disagree and affirm the judgment of sentence.

Roy Paul Warman, an admitted accomplice, testified that on the evening of December 27,1978, he, Marty Cole and the appellant, Cecil Barnhart, had agreed to burglarize a Gas and Go station in Normalville, Fayette County. Appellant was the driver. While he remained in his car, Warman and Cole entered the gas station and removed money, cigarettes, a telephone and a set of torches. These were placed in the trunk of appellant’s car whereupon the three men drove away. Warman could not recall how the stolen items were distributed.

It has long been the law of this Commonwealth that the uncorroborated testimony of an accomplice is sufficient to convict a defendant. Commonwealth v. Bradley, 449 Pa. 19, 21, 295 A.2d 842, 844 (1972). See also: Commonwealth v. Bruno, 316 Pa. 394, 402, 175 A. 518, 521 (1934); Commonwealth v. Richbourg, 263 Pa.Super. 494, 398 A.2d 685 (1979); Commonwealth v. Ridgely, 243 Pa.Super. 397, 365 A.2d 1283 (1976). Before a court will award a new trial on the ground that the verdict was against the weight of the evidence, it must appear from the record that the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative, so that right may be given another opportunity to prevail. Lupi v. Keenan, 396 Pa. 6, 8, 151 A.2d 447, 449 (1959). This is not such a case. The court below properly refused to find the verdict contrary to the weight of the evidence.

During Warman’s direct examination, he was asked if he and his co-conspirators had discussed the burglary at the Gas and Go prior to its occurrence. The witness responded, “No, there was prior burglaries—it was just on our way back.” Appellant’s counsel moved for a mistrial, which was denied. On appeal, he contends that this was error.

This testimony clearly implicates appellant in other, unspecified burglaries committed shortly prior to the one giving rise to the charges for which he was being tried. It suggests that while appellant and his co-conspirators were returning from the commission of other burglaries, they discussed and then decided to enter the Gas and Go service station.

As a general rule, evidence of other, distinct crimes is inadmissible because the commission of one crime is not proof of the commission of another and because of the prejudice caused to the defendant by such evidence. Commonwealth v. Fortune, 464 Pa. 367, 372-73, 346 A.2d 783, 786 (1975) ; Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973); Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). However, special circumstances justifying exceptions to the general rule exist when evidence of other crimes tends to prove (1) motive; (2) scienter or intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes so related that proof of one tends to prove the other as well; and (5) to establish the identity of the person charged with the commission of the offense. Commonwealth v. Peterson, 453 Pa. 187, 197-98, 307 A.2d 264, 269 (1973); Commonwealth v. Boulden, 179 Pa.Super. 328, 116 A.2d 867 (1955). Recent decisions of this Court have added an additional consideration. Thus, even if a particular exception to the general rule is applicable, the trial court is nevertheless required to balance the need for the evidence against its potential prejudice in order to determine its admissibility. Commonwealth v. Wright, 259 Pa.Super. 293, 393 A.2d 833 (1978); Commonwealth v. Bradley, 243 Pa.Super. 208, 364 A.2d 944 (1976) .

In the instant case, appellant was seated in his car during the time when Warman and Cole effected entry of and removed property from the Gas and Go. The fact that appellant, together with Warman and Cole, had been engaged in the commission of other burglaries immediately prior thereto was relevant to show that appellant was not an innocent bystander but a knowing and active participant in an unlawful criminal confederation. The fact that the three men were returning from other burglaries when they decided to enter the Gas and Go also demonstrated a common scheme or plan which tended naturally to show that appellant was a participant in the burglary for which he was being tried.

Evidence of crimes committed prior to the offense charged has been held relevant and admissible to explain the relationship between alleged co-conspirators. Commonwealth v. Darcy, 362 Pa. 259, 66 A.2d 663 (1949); Commonwealth v. Strantz, 328 Pa. 33, 195 A. 75 (1937); Hester v. Commonwealth, 85 Pa. 139 (1877); Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 224 A.2d 96 (1966). Evidence of other attacks on different men on the same night has also been held relevant and admissible to show scheme, plan or design in a prosecution for assault and battery. See: Commonwealth v. Krolak, 164 Pa.Super. 288, 64 A.2d 522 (1949). Similarly, evidence of other robberies committed the same night as the offense for which the defendant was on trial has been held to be relevant and admissible because it constitutes a link in a chain of closely connected crimes and thus tends to show the intention of the defendant. See: Commonwealth v. Foster, 364 Pa. 288, 292, 72 A.2d 279, 281 (1950); Commonwealth v. Darcy, supra, 362 Pa. at 281-82, 66 A.2d at 674-75 (1949); Commonwealth v. Brooks, 355 Pa. 551, 553, 50 A.2d 325, 327 (1947).

Under the circumstances of the instant case, the application of a balancing test did not compel the grant of appellant’s motion for mistrial. The testimony was introduced by Warman’s responsive but unexpected answer to a proper question by the District Attorney. When it became apparent that appellant and his alleged accomplices had been engaged in a burglary spree on the night of the offense for which appellant was being tried, the trial judge determined that the evidence was relevant and admissible. Indeed, it then appeared that the evidence was quite necessary. It was necessary to show that appellant, who was merely seated in his car while the burglary was being committed, was a knowing, intentional and active participant in the crime which had been physically committed by Warman and Cole.

Appellant also complains that the trial court gave no cautionary instructions. The record discloses, however, that no such instructions were requested at the time when the motion for mistrial was made and denied. Moreover, at the close of the trial court’s jury instructions, appellant expressed satisfaction therewith and requested no additional instructions. This issue, therefore, has not been preserved for appellate review. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

The judgment of sentence is affirmed.

SHERTZ, J., files a concurring opinion.

SHERTZ, Judge,

concurring:

Although I agree with the conclusion reached by the majority, I would affirm on other grounds. Reference to prior criminal activity need not always be deemed so prejudicial as to have denied a defendant a fair trial. Minor, isolated and ambiguous references, such as the one in the instant case, do not mandate a reversal. Commonwealth v. Colon, 264 Pa.Super. 314, 399 A.2d 1068 (1979); Commonwealth v. Jackson, 248 Pa.Super. 420, 375 A.2d 168 (1977).

Warman’s unsolicited response (at 192) did not: (a) identify the Appellant as being the person, or one of the persons, who accompanied Warman “on (their) way back”; (b) indicate where Warman and his unidentified companion(s) were coming from “on (their) way back”; (c) describe the activities of Warman and his unidentified companion(s) at the unspecified location(s) from which they were coming; (d) indicate that Warman, Cole or Appellant had participated in the “prior burglaries”; (e) indicate that Appellant had any knowledge of the “prior burglaries”; (f) indicate when the “prior burglaries” had occurred; nor (g) identify the targets) of the “prior burglaries”. Consequently, Warman’s response, taken in context with the District Attorney's question, may reasonably be interpreted to mean that “prior burglaries” of the Gas & Go had been successfully perpetrated by others, thereby leading Warman to believe that he, Cole and Appellant could similarly burglarize the establishment successfully.

The impact, if any, on the jury, of such an isolated, fleeting, muddled and ambiguous response, was necessarily minor and was allowed to remain so by the trial judge, who appropriately avoided calling undue attention to it, with cautionary instructions. Jackson, 248 Pa.Super. at 425, 375 A.2d at 170.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 903.

      . The question put to Warman by the District Attorney was:
      Did you at any time prior to burglarizing, as you say, the Gas and Go, discuss the matter with Mr. Barnhart and the other party you named, Mr. Cole?

      . As the majority notes, no such instructions were requested. (At 193).


author: MONTGOMERY, Judge:

text:
    434 A.2d 194
    COMMONWEALTH of Pennsylvania, Appellant, v. Frank H. LABIAUX.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1981.
    Filed Aug. 28, 1981.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    John H. Corbett, Jr., Pittsburgh, submitted a brief on behalf of appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Appellee Frank H. Labiaux was arrested without a warrant and charged with the offense of driving while under the influence of alcohol. Appellee filed a Motion to Suppress the results of a breathalyzer test. At the conclusion of the hearing, thereon, Appellee’s motion was granted and the Commonwealth filed this direct appeal. We reverse.

The sole issue is whether the police had probable cause to arrest Appellee. The initial call to police was regarding a domestic situation. Upon the officer’s arrival at the site and as a result of what they were told by the owner of the building, the officers asked Appellee to leave the building. Appellee was drinking beer when the officers arrived, appeared to have a flushed face and bloodshot eyes and his speech was slurred. Because Appellee was staggering, the officers had to assist him down the stairs. In addition, they noticed a strong odor of beer on his breath. Appellee placed a basket, which one officer had carried out of the building, into a truck which he had identified as being his. One of the officers, Larry Sangricco, advised Appellee not to drive the truck but to take a taxicab or walk home. He further advised Appellee that he would arrest him if he drove the truck. The officers left, got in their cars, and cruised the area, consistent with their practice in domestic situations. Approximately fifteen minutes after the initial stop, Officer Sangricco saw Appellee driving his truck. He subsequently arrested Appellee for driving under the influence. Officer Sangricco testified that he saw no other Vehicle Code violations. On the basis that the Appellee was safely operating the vehicle, the lower court found there was no probable cause to arrest him for driving under the influence.

We believe that the lower court’s reasoning is incorrect. The offense is defined as follows:

A person shall not drive any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving . ..
75 Pa.C.S. § 3731

We have specifically repudiated Appellee’s position in cases brought under the previous driving under the influence statute. Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980); Commonwealth v. Kelly, 196 Pa.Super. 265, 175 A.2d 918 (1961). We do not believe the modifying phrase “to a degree which renders the person incapable of safe driving” requires the police to permit an obviously intoxicated person to operate a motor vehicle on the highway until that person has committed some other Vehicle Code violation, perhaps damaging another’s property or injuring or killing someone, before they are permitted to arrest that individual. Sufficient protection from unwarranted arrest is provided by the requirement that the Commonwealth prove the person was driving the vehicle and also was under the influence of alcohol.

There was certainly sufficient indication that Appellee was intoxicated which the officers gleaned first-hand from their previous encounter with him. In addition, a very short period of time had elapsed from the time the officers had to assist Appellee down the stairs until the time they saw him operating the vehicle. Therefore, there was sufficient evidence presented to show probable cause for the arrest, and the lower court erred in finding that the lack of some other Vehicle Code violation precluded a finding of probable cause.

Reversed. We relinquish jurisdiction.

      . At some time subsequent to the filing of the appeal, the Commonwealth was notified that the lower court had modified its order to indicate the sustaining of a demurrer rather than the granting of the Motion to Suppress. Having reviewed the record, including the transcript of the hearing, we believe that all parties understood the lower court’s ruling to be on the suppression issue and we will so treat it on this appeal.

      . The Vehicle Code provides that an arrest for a violation of 75 Pa.C.S.A. § 3731 (Driving Under Influence of Alcohol) may be made without a warrant if a police officer has probable cause to believe a person has violated that law, regardless of whether the alleged violation was committed in the presence of the officer.