author: WIEAND, Judge:

text:
    447 A.2d 267
    COMMONWEALTH of Pennsylvania v. George VUKOVICH, Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1979.
    Filed June 18, 1982.

      T. Bowner, Assistant Public Defender, Mercer, for appellant.
    Frances S. Palmer, Assistant District Attorney, Sharon, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

George Vukovich was tried jointly with his brother, John, and was convicted of forgery, conspiracy to commit forgery, and conspiracy to use a forged prescription in violation of Section 8 of the Pharmacy Act of September 27, 1961, P.L. 1700, 63 P.S. § 390-8. Post-trial motions were denied, and sentences of imprisonment were imposed for forgery and conspiracy to commit forgery. On the conviction for conspiracy to violate the Pharmacy Act, sentence was suspended. This appeal followed.

The Commonwealth’s evidence, as recited in the trial court’s opinion, disclosed the following: “On November 5, 1977, in a Thrift Drug Store in the City of Sharon, Pennsylvania, John Vukovich presented a written prescription, purportedly from Dr. Wieneke for Percodan, in the name of George Wilcox .... This was a fictitious name. The doctor testified at trial that none of the writing on the prescription blank was his and that the prescription was a forgery .... Commonwealth witnesses testified that both John Vukovich and George Vukovich were present in the drugstore at the time in question and that the prescription was presented to the pharmacist’s clerk by John Vukovich.

“By circumstance, Robert K. Torrence, a police officer of the City of Sharon, presently assigned to the Mercer County Narcotics Unit, came to Thrift Drug shortly before the attempt to pass the forged prescription. He informed a store employee that he would be next door in the event that anything occurred . . . [having been] assigned to assist the drugstores in their efforts to prevent the filling of forged prescriptions. After the drugstore personnel became suspicious of the prescription passed by John Vukovich, the pharmacist had one of the employees go to the sporting goods store next door and request Officer Torrence to come to the pharmacy immediately.

“John Vukovich apparently became suspicious of the delay and proceeded out of the store without waiting for his prescription to be filled. He met Officer Torrence, who knew him, just outside the door of the drugstore ....

“When the officer then entered the drugstore, George Vukovich arose from where he was seated and started out. Torrence stopped him initially but was informed by the druggist that he had the wrong man. At that point the druggist was not aware of the relationship of the two defendants.” “

George Vukovich, the appellant herein, was subsequently arrested and charged by the District Attorney of Mercer County with forgery in that he “did attempt to procure Percodan, a Schedule II narcotic drug, on a prescription blank belonging to Dr. K. F. Wieneke, not issued or authorized by Dr. K. F. Wieneke, in violation of 18 P.S. 4101.” Appellant was also charged with being part of a conspiracy with John Vukovich, appellant’s brother, to commit forgery. At trial, appellant’s counsel contended that the statutory citation in the information was erroneous and that the offense alleged was a violation of the Pharmacy Act of September 27, 1961, P.L. 1700, Section 8, 63 P.S. § 390-8. He requested that the court instruct the jury according to the provisions of that Act. The trial judge thereupon instructed the jury on both forgery as defined by the Crimes Code and the crime of using a forged prescription under the Pharmacy Act. He also instructed the jury to return separate verdicts on such charges. The jury found appellant not guilty of forging or altering a prescription under the Pharmacy Act but guilty of forgery under the Crimes Code. Appellant was also found guilty of conspiring to violate both Section 4101 of the Crimes Code and Section 8 of the Pharmacy Act. Appellant contends on appeal that the Pharmacy Act is controlling and that he cannot be convicted under Section 4101 of the Crimes Code. We agree.

This issue was properly raised at trial and has been preserved in post-verdict proceedings. The information, although citing Section 4101 of the Crimes Code, alleged facts which equally constituted a violation of the Pharmacy Act. Instead of moving pre-trial to quash the information, defense counsel raised the issue of the applicable statutory proscription at trial. He requested the trial judge to charge the jury according to the provisions of Section 8 of the Pharmacy Act. Over objection, the trial judge submitted it to the jury to determine whether appellant had committed one or both forgery offenses. The incorrectness of the court’s instructions was asserted specifically in post-trial motions and was, in fact, considered by the trial court in disposing of such post-trial motions. The Commonwealth does not question that this issue is properly before us for review.

Forgery is defined in Section 4101(a) of the Crimes Code [18 Pa.C.S. § 4101(a)] in pertinent part as follows:

“A person is guilty of forgery if, with intent to defraud or injure anyone . .. the actor:
(1) alters any writing of another without his authority;
(2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act . . .; or
(3) utters any writing which he knows to be forged in a manner specified in paragraphs (1) or (2) of this subsection.”

The Pharmacy Act, supra, makes the use of a forged prescription to obtain controlled substances a misdemeanor in the following language:

“It shall be unlawful for:
(13) Any person by himself or through another to procure or attempt to procure for himself or another any drug:
(ii) by the forgery or alteration of a prescription or any written order.”

It is the policy of the law not to permit prosecutions under the general provisions of a penal code when there are applicable special penal provisions available. Commonwealth v. Brown, 346 Pa. 192, 199, 29 A.2d 793, 796-97 (1943). Thus, in Commonwealth v. Buzak, 197 Pa.Super. 514, 179 A.2d 248 (1962), it was held that a person who knowingly made a false representation in order to obtain compensation under the Unemployment Compensation Law had to be prosecuted under the section of that law which made his act a summary offense and could not be indicted for the felony of false pretenses under the Penal Code of 1939. See also Commonwealth v. Litman, 187 Pa.Super. 537, 144 A.2d 592 (1958).

In the instant case, the evidence showed that appellant had presented a forged prescription for the purpose of obtaining drugs which he could not purchase without a prescription. This was precisely the conduct made a misdemeanor by the Pharmacy Act; and it was this statute about which the jury should have been instructed. The forgery section of the Crimes Code is a general penal provision, which must yield to the special penal provision in the Pharmacy Act.

For this reason, we are constrained to hold that the instructions of the trial court were erroneous and to set aside the convictions for forgery and conspiracy to commit forgery under the Crimes Code. With respect to the instructions concerning conspiracy to obtain drugs by use of a forged prescription in violation of the Pharmacy Act, we observe that the information was sufficient to charge such an offense. The facts averred therein clearly designated appellant’s conduct as being the type of conduct made criminal by the Pharmacy Act. Moreover, at trial, appellant not only consented to the jury’s being instructed under the Pharmacy Act, but actually requested the trial court to so charge.

Appellant argues, however, that he is entitled to a new trial on the charge of conspiracy to violate the Pharmacy Act because of alleged trial errors. He contends, inter alia, that it was error to allow Officer Torrence to testify, over objection, that appellant and his brother had been seen together in another drugstore two days before the events which produced their arrest on the present charges. When Torrence made his presence known on that occasion, John said to appellant, “Let’s get the hell out of here.” Both men thereupon left the drugstore.

“Generally, it may be said that any legally competent evidence which, when taken alone or in connection with other evidence, tends to prove or disprove a material or controlling issue or to defeat the rights asserted by one or the other parties, and sheds any light upon or touches the issues in such a way as to enable the jury to draw a logical and reasonable inference with respect to the matter or principal fact in issue, is relevant. As thus defined, relevancy means the logical relation between the proposed evidence and a fact to be established.” 29 Am.Jur.2d 302, 303, Evidence § 252.

The presence of John Vukovich in the Thrift Drug Store on November 5, 1977, was an issue in the instant case. Similarly, whether appellant and John were co-conspirators acting in concert to obtain drugs was an issue. The Commonwealth contended that John had been present and had tendered a forged prescription while George waited. John was seen outside the drugstore by Officer Torrence, who also had a conversation with him. Both John Vukovich and his brother, George, denied that John had been in the drugstore or had attempted to use a forged prescription to obtain drugs. George, who was present in the drugstore, testified that he arrived alone for the purpose of purchasing Betadine swabs.

The fact that Officer Torrence had observed appellant and his brother two days earlier in a drugstore was relevant to show that they were not total strangers to him, thus lending credence to Torrence’s testimony that it was John Vukovich whom he had observed at the door of Thrift Drugs on November 5, 1977.

There was no relevance, however, to John’s statement, “Let’s get the hell out of here” when he became aware of the presence of Officer Torrence. This statement did not tend to prove or disprove any material issue in the case. Neither was the admission of this statement harmless. The irrelevant conclusion to be drawn from the statement was that appellant and his brother did not wish to remain in the drugstore in the presence of a policeman. This could only serve to prejudice the appellant without serving any valid evidentiary purpose. Thus, it was not only irrelevant but unfairly prejudicial as well; and it was error to receive the same. Accordingly, a new trial must be granted on the charge of conspiracy to violate the Pharmacy Act by using a forged prescription to obtain drugs.

Reversed and remanded for a new trial in accordance with the foregoing opinion.

CERCONE, President Judge, concurs in the result.

      . 18 Pa.C.S. § 4101.

      . 18 Pa.C.S. §§ 901, 4101.

      . Vukovich was found not guilty of using a forged prescription in violation of the Pharmacy Act.

      . The information charged appellant with forgery in the following language:
      “... on or about November 5, 1977 at Thrift Drug Store, Towne Plaza, Sharon, Pennsylvania, with intent to defraud or injure anyone, or with knowledge that he was facilitating a fraud or injury to be pertetrated [sic] by anyone, the defendant did make, complete, execute, authenticate, issue or transfer a writing so that it purports to be the act of another who did not authorize that act, in that he did attempt to procure Percodan, a Schedule II narcotic drug, on a prescription blank belonging to Dr. K. F. Wieneke, not issued or authorized by Dr. K. F. Wieneke, in violation of 18 P.S. § 4101
      The information also charged appellant with conspiracy as follows:
      “... on or about November 5, 1977 with the intent of promoting or facilitating the commission of the crime of forgery, defendant did unlawfully and feloniously agree with John Vukovich or others, that they or one or more of them would engage in conduct which would constitute the crime aforesaid, or an attempt or solicitation to commit such crime, and did an overt act in pursuance thereof, in violation of 18 P.S. § 903 .... ”

      . It may be observed, although appellant has not raised it in the instant case, that the Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, No. 64, § 13(a)(12) as amended, 35 P.S. § 780-113(a)(12) also makes criminal and grades as a misdemeanor “[t]he acquisition or obtaining of possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.”

      . Act of March 30, 1955, P.L. 6, No. 5, § 7, 43 P.S. § 871, amending the Unemployment Compensation Law.

      . Penal Code of June 24, 1939, P.L. 872, § 836, 18 P.S. § 4836, now repealed.

      . We do not now decide whether the intent to obtain drugs attainable only by prescription, even though payment therefor is made, constitutes an “intent to defraud or injure anyone” as required by Section 4101(a) of the Crimes Code.

      . This issue has not been waived. Defense counsel’s objection was a general objection. Subsequent argument on the objection was premised, inter alia, on the grounds that the testimony was prejudicial and had no probative value. This was sufficient to preserve the issue of relevancy for post-trial review. In fact, it was fully considered in the trial court’s opinion denying post-trial motions.

      . Because of our decision that a new trial must be granted for this reason, we find it unnecessary to consider appellant’s additional contention that it was error to allow Dr. Wieneke to testify that upon examination of appellant one month before arrest he observed needle marks up and down the major veins in appellant’s arms and neck.


source: Caselaw Access Project

author: WIEAND, Judge.

license: Public Domain

text:
    447 A.2d 271
    COMMONWEALTH of Pennsylvania v. John VUKOVICH, Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1979.
    Filed June 18, 1982.
    Michael C. Gruitza, Sharon, for appellant.
    Frances S. Palmer, Assistant District Attorney, Sharon, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WIEAND and HOFFMAN, JJ.
   WIEAND, Judge.

The issues raised in this appeal have been fully considered in an opinion filed in Commonwealth v. George Vukovich, 301 Pa.Super. 111, 447 A.2d 267 (1982). For reasons appearing therein, the judgment of sentence entered against John Vukovich is reversed, and the case is remanded for a new trial on the charge of conspiracy to violate Section 8 of the Pharmacy Act of September 27, 1961, P.L. 1700, 63 P.S. § 390-8.

CERCONE, President Judge, concurs in the result.


author: PRICE, Judge:

text:
    447 A.2d 272
    COMMONWEALTH of Pennsylvania v. Efrain MARTINEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed June 25, 1982.

      Kenneth C. Sandoe, Lebanon, for appellant.
    David J. Brightbill, District Attorney, Lebanon, for Commonwealth appellee.
    Before PRICE, CAVANAUGH, and WATKINS, JJ.
   PRICE, Judge:

Appellant, Efrain Martinez, appeals from the judgment of sentence imposed after his conviction for unlawful delivery of a controlled substance. Appellant claims that the trial court erred in permitting the Commonwealth’s introduction, in its case in chief, of evidence of appellant’s subsequent criminal activity. We agree and, therefore, grant appellant a new trial.

The following facts were adduced at trial. At approximately 7:20 p.m. on May 1, 1978, Officer Joel Hicks and an informant, Stephanie Lynch, entered DiNunzio’s Spaghetti House in Lebanon, Lebanon County. Shortly thereafter, Miss Lynch was approached by appellant, who engaged her in a private conversation. Following this conversation Miss Lynch, appellant and Officer Hicks left the spaghetti house and pursuant to appellant’s directions drove Officer Hicks’ van to Seventh and Lehman Streets. Upon their arrival and in response to an inquiry by appellant, Officer Hicks gave appellant a one hundred dollar bill and said that he wanted to purchase a fifty dollar bag of heroin. Appellant exited the van and walked outside Officer Hicks’ and Miss Lynch’s range of vision. Less than one-half hour later appellant returned to the van carrying a tin foil packet containing a brownish powder, a small jar of water and fifty dollars. Appellant gave the foil packet and money to Officer Hicks, and offered him a syringe and water with which to inject the heroin. Officer Hicks ignored appellant’s offer and, at appellant’s request, left appellant in the vicinity of the William Penn Bar.

Appellant was charged with the unlawful delivery of heroin and tried before a jury on September 5 and 6, 1978. For the limited purposes of showing state of mind and intent the trial court permitted the prosecution to introduce evidence of a second sale of heroin allegedly made by appellant in DiNunzio’s Spaghetti House on May 19, 1978. The charges filed against appellant for the alleged subsequent sale of heroin were unresolved at the time of trial. The jury rendered a guilty verdict, following which appellant filed post-verdict motions alleging, inter alia, that the evidence of the later sale had been improperly admitted. Appellant’s motions were denied on June 7, 1979, and this appeal ensued.

“It is well established that evidence of other criminal activity generally is inadmissible against a defendant at his trial on another charge. Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973).” Commonwealth v. Stokes, 279 Pa. Superior Ct. 361, 371, 421 A.2d 240, 245 (1980). “The Commonwealth must prove beyond a reasonable doubt that a defendant has committed the particular crime of which he is accused, and it may not strip him of the presumption of innocence by proving that he has committed other criminal acts.” Commonwealth v. Stanley, 484 Pa. 2, 7, 398 A.2d 631, 633 (1979). See also Commonwealth v. DeVaughn, 488 Pa. 629, 413 A.2d 660 (1980). Evidence of other crimes may be admissible, however, when it is offered to prove: “(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan, or design embracing the commission of two or more crimes so related to each , other that proof of one tends to prove the others; or (5) the identity of the person charged with the crime.” Commonwealth v. Brown, 280 Pa. Superior Ct. 303, 307, 421 A.2d 734, 736 (1980). See also Commonwealth v. Wright, 259 Pa. Superior Ct. 293, 393 A.2d 833 (1978); Commonwealth v. Hude, 256 Pa. Superior Ct. 439, 390 A.2d 183 (1978).

The Commonwealth first argues that evidence of the subsequent sale was admissible in its case in chief to show appellant had the “intent to deliver.” Record at 12a. “An intent is a mental state, which can be inferred from conduct.” Commonwealth v. Abney, 195 Pa. Superior Ct. 317, 322, 171 A.2d 595, 598 (1961). However, intent was not at issue at the time the Commonwealth raised this evidence. In fact, the Commonwealth conceded that it was introducing this evidence “to rebut any possible entrapment defense.” Record at 35a (emphasis added).

[W]hen the crime charged involves the element of knowledge, intent, or the like, the state will often be permitted to show other crimes in rebuttal, after the issue has been sharpened by the defendant’s giving evidence of accident or mistake, more readily than it would as part of its case in chief at a time when the court may be in doubt that any real dispute will appear on the issue.

McCormick on Evidence, § 190 at 452 (Cleary Ed. 1972) (emphasis added). See also Commonwealth v. Bond, 261 Pa. Superior Ct. 311, 396 A.2d 414 (1978); Commonwealth v. Wright, 259 Pa. Superior Ct. 293, 393 A.2d 833 (1978). At the time of the introduction of this evidence the Commonwealth had established delivery of the heroin and did not need to produce evidence of the later sale to prove its case. Moreover, appellant had not raised the defense of entrapment. The Commonwealth’s introduction of this evidence, therefore, could only be inflammatory and was not warranted at this stage in trial.

We also recognize that the other crime introduced by the Commonwealth occurred subsequent to the crime being tried. Moreover, appellant had not yet been convicted of this later sale at the time of trial. See generally Commonwealth v. Bond, 261 Pa. Superior Ct. 311, 396 A.2d 414 (1978). “[EJvidence of prior occurrences . . . and prior offenses, if they are related to the offense for which defendant is on trial, may be admitted ... to show intent.” Commonwealth v. Faison, 437 Pa. 432, 446, 264 A.2d 394, 401 (1970) (emphasis added). “Such evidence is normally used to establish that the ‘crime currently being considered grew out of or was . . . caused by the prior facts.’ ” Commonwealth v. Green, 290 Pa. Superior Ct. 76, 81, 434 A.2d 137, 139 (1981), quoting Commonwealth v. Schwartz, 445 Pa. 515, 285 A.2d 154 (1971). Evidence of subsequent offenses is less strongly probative of intent than prior offenses since it does not establish that a defendant possessed the requisite intent prior to the commission of the crime being tried. Evidence of a later crime is so tenuously related to intent at the time of an earlier crime that it is admissible only if proof of both crimes is necessary to prove the Commonwealth’s case. In the instant case the Commonwealth clearly had sufficient evidence to establish the first sale without introducing evidence of the later sale. Accordingly, the evidence was not admissible for the purpose of establishing appellant’s intent.

The Commonwealth also contends that evidence of the alleged subsequent sale of heroin was admissible to show appellant’s “state of mind.” Record at 7a, 34-35a. Evidence of an unrelated crime is admissible to show state of mind only when it is “ ‘so close in time to the alleged offense as to have bearing upon [the accused’s] state of mind at that time.’ ” Commonwealth v. Bradley, 243 Pa. Superior Ct. 208, 217, 364 A.2d 944, 948 (1976), quoting Commonwealth v. Boulden, 179 Pa. Superior Ct. 328, 116 A.2d 867 (1955). “If the event took place on the same day, and possibly within a very few days, it might [be] evidence of the ‘state of mind’ of the [appellant] at the time of the alleged [crime] and as such would be admissible.” Commonwealth v. Boulden, 179 Pa. Superior Ct. 328, 346-47, 116 A.2d 867, 875 (1955). The hiatus of eighteen days between the two heroin sales is far too long to evidence appellant’s mental state at the time of the initial sale. Evidence of the later sale, therefore, was of no assistance to the jury in reaching its determination. The subsequent sale only served to create an impermissible inference that appellant is a bad person and hence probably committed the crime. See Commonwealth v. Bond, 261 Pa. Superior Ct. 311, 396 A.2d 414 (1978); Commonwealth v. Hude, 256 Pa. Superior Ct. 439, 390 A.2d 183 (1978).

Accordingly, we vacate the judgment of sentence and remand for a new trial.

      . The Controlled Substance, Drug, Device and Cosmetic Act, April 14, 1972, P.L. 233, No. 64, § 13, eff. June 14, 1972; 35 P.S. § 780-113.

      . Appellant raises two additional claims for relief. First, appellant contends that the trial court erred in refusing to grant a mistrial after the prosecutor allegedly implied in his opening statement that appellant would testify. Second, appellant argues that the prosecutor’s misstatement of the legal grounds for entrapment constituted prejudicial error. Since we find that the evidence of appellant’s subsequent criminal activity was improperly admitted, it is unnecessary for us to address these claims.

      . Subsequent laboratory tests conclusively established that the substance in the packet was, in fact, heroin.

      . See note 1 supra.

      . Appellant was subsequently convicted of this second offense. His conviction was affirmed by this court in Commonwealth v. Martinez, 258 Pa. Superior Ct. 633, 427 A.2d 1227 (1980).

      . Pennsylvania has adopted the objective test for entrapment. Commonwealth v. Jones, 242 Pa. Superior Ct. 303, 363 A.2d 1281 (1976). Under this test the focus is police conduct rather than “with the defendant’s prior criminal activity or other indicia of a predisposition to commit crime.” Id, 242 Pa. Superior Ct. at 311, 363 A.2d at 1285, citing Sherman v. United States, 356 U.S. 369, 379, 78 S.Ct. 819, 824, 2 L.Ed.2d 848 (1958). It is, therefore, argued that evidence of other criminal activity to show criminal intent is inadmissible unless more closely connected in time than eighteen days. Since the evidence was presented in the Commonwealth’s case in chief and not on rebuttal we do not address this claim.

      . This general standard is also applicable to the admissibility of prior offenses. See Commonwealth v. Brown, 280 Pa. Superior Ct. 303, 421 A.2d 734 (1980). We note, however, that because evidence of subsequent crimes is less reflective of intent at the time at issue, evidence of subsequent crimes is less likely to pass this rigid standard when the evidence is proffered for the purpose of proving intent.

      . The Commonwealth did not attempt to admit the evidence to establish a common scheme or plan, to establish appellant’s identity as the seller, or to show absence of mistake. Appellant admitted both that he was a regular user of heroin and that the substance he delivered to Officer Hicks was heroin. Record at 71a, 76a-77a.

      . In a case involving credibility such an error clearly is not harmless. Commonwealth v. Walls, 261 Pa. Superior Ct. 321, 396 A.2d 419 (1978).


author: SPAETH, Judge:

text:
    447 A.2d 275
    COMMONWEALTH of Pennsylvania, v. John McCANDLESS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1981.
    Filed June 25, 1982.

      Douglas M. Johnson, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   SPAETH, Judge:

This is an appeal from an order dismissing a P.C.H.A. petition. Appellant claims that he did not knowingly waive his right to appeal the issue of whether his probation revocation hearing was held “as speedily as possible,” as required by Pa.R.Crim.P. 1409. We are unable to resolve this claim on the basis of the record before us, and therefore remand.

On November 28, 1972, appellant pleaded guilty to burglary, larceny, and criminal conspiracy, and was sentenced to a total of nine years probation. On April 23, 1973, appellant pleaded guilty to burglary charges, and as a result, on May 4, 1973, he was charged with violating probation and a detainer was lodged against him. A probation violation hearing was scheduled for November 15, 1974, but was not held until December 5, 1974. Appellant’s probation was revoked and he was sentenced to three to seven years in prison. Then-counsel for appellant filed an appeal from this sentence, but on November 19, 1975, counsel withdrew the appeal.

On May 26,1976, appellant, still by the same counsel, filed a P.C.H.A. petition alleging that the probation violation hearing had not been held “as speedily as possible,” as required by Pa.R.Crim.P. 1409. On August 27, 1976, this petition was denied. However, the petition and the order denying it were improperly cross-indexed and therefore not made part of the record. This error was not discovered and corrected until June 11, 1981.

In the meantime, on June 25,1980, appellant filed pro se a P.C.H.A. petition alleging that his counsel had been ineffective in failing to prosecute the appeal from the judgment of sentence imposed after his probation was revoked. Appellant alleged that he had instructed counsel to file an appeal but “was never informed thereafter about it,” and that the issue he had wanted argued on the appeal was whether his probation violation hearing violated Rule 1409. A public defender was appointed to represent appellant, and a hearing was held on the petition. On October 16,1980, the lower court entered an order denying the petition. This appeal is from that order.

Anyone convicted of a crime has an absolute right to appeal, Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980); Pa. Constitution, Article V, § 9, and is entitled to effective assistance of counsel in perfecting an appeal, Commonwealth v. Blackwell, 258 Pa.Superior Ct. 121, 392 A.2d 714 (1978). However, counsel may not be faulted for failing to perfect an appeal where the right to appeal has been waived. Commonwealth v. Robinson, 487 Pa. 541, 410 A.2d 744 (1980). Here the appeal was perfected but withdrawn. The issue, therefore, is whether appellant waived his right to appeal by agreeing to his previous counsel’s withdrawal of his appeal.

Previous counsel testified at the P.C.H.A. hearing. His testimony establishes that he had a strategic reason for withdrawing the appeal, but it does not reveal whether this strategy was ever communicated to appellant:

At that particular time I went to Judge Smiliie on a number of occasions waiting for the opinion to be written. Judge Smiliie for I can’t remember why but Judge Smiliie had been the emergency Judge at that time and I can’t remember exactly what it was. Well, as the time was running I contacted Mr. McCandless and I spoke constantly to his parents which are here in the courtroom. I told them about what was going on and that I was waiting for an opinion and how the time was running for Mr. McCandless to reach half of his minimum so that he could possibly be released on parole.
During the period of that the Governor’s administration there were releases at that time being given and at half the parole period. I spoke to the parents and I have one fuzzy recollection and I am not going to say it is specific, I have one fuzzy recollection that I spoke to Mr. McCandless himself the petitioner here when he called from the prison. And I told him what I would like to do and approach the Judge and tell the Judge that we were going to withdraw our appeal from the Superior Court. I know I said it to the parents specifically. That we are going to withdraw our appeal from the Superior Court because he is approaching half of his minimum.
I told him if he kept his nose clean for that period of time and I think it was only a matter of a couple of months. If he kept his nose clean for that period of time I would then request the Court or ask the Court to make— and not to oppose a parole release because at that time if the Judge wrote a letter or said that he did not oppose it it had a lot of weight to it. Governor Thornburgh changed that.
They agreed—Mr. McCandless—
MR. O’SHEA: I will object to that, Your Honor, what they said.
THE WITNESS: All right. I am sorry.
THE COURT: We will allow it. Go ahead.
THE WITNESS: The parents agreed and then subsequently Mr. McCandless got into a fight at the prison and messed that up. I then came back because he was not going to be released early because of the fight at the prison.
N.T. 10/14/80, 18-20 (emphasis supplied).

Appellant also testified at the P.C.H.A. hearing. He acknowledged that counsel had told him that the appeal was going to be withdrawn—not, however, for a strategic reason but on the basis of a conversation with the judge who had conducted the probation violation hearing:

Q. Now, did you ever discuss with Arthur Gutkin an appeal in this case?
A. Yes, I asked for an appeal.
Q. And what happened as a result of your request for an appeal?
A. Said it was supposed to go in but it was left out again. I don’t know.
Q. In other words,—
A. In other words, he told me that—
THE COURT: Don’t tell him what in other words was.
Q. Could you attempt to clarify that supposed to go in but it was left out again?
A. It was supposed to go in and then he came back to me as the sheriffs were taking me out and said he was going to lift the appeal out of it because he talked to Judge Smillie and Judge Smillie admitted that he had made a wrong violation on the period of time that was on me before I had a hearing.
N.T. 10/14/80, 10-11.

In the opinion explaining its order dismissing appellant’s P.C.H.A. petition, the lower court found that counsel was not ineffective because his strategy had a reasonable basis designed to effectuate appellant’s interests. Slip op. at 4. However, the court appears to have overlooked the importance of the issue of whether appellant had agreed to the strategy. In any event, the court did not find that appellant had agreed to the strategy. Thus in its opinion the court said:

An appeal was timely filed but later discontinued in an attempt at improving defendant’s chances for an early parole release. Defendant’s counsel testified that at the time defendant was incarcerated, prisoners could be released on parole upon serving one-half their minimum sentence, that appellant was approaching one-half his minimum and that the record had not yet been forwarded to the Superior Court because the lower Court’s opinion had not yet been written. Defendant’s counsel visited the sentencing Judge on a number of occasions and concluded that if defendant withdrew his appeal the Judge would not oppose defendant’s early release, which would have greatly enhanced his chances of being granted an early parole. Defendant’s counsel contacted defendant and spoke frequently with his parents who agreed with counsel’s strategy. After the appeal was withdrawn, defendant was involved in a fight in prison and was not granted early parole.
Slip op. at 3 (emphasis supplied).

We do not question the lower court’s finding that counsel’s plan was designed to effectuate appellant’s interests by securing appellant’s early release. Whether to adopt this strategy by withdrawing the appeal, however, was not a decision for appellant’s parents but for appellant. As the Supreme Court has said, “The right [to effective assistance of counsel] ... embodies the right to representation on appeal if the defendant so desires, whatever the prospects of success may appear to be to the court or counsel.” Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 243, 220 A.2d 886, 888 (1966), cited with approval, Commonwealth v. Fareri, 271 Pa.Superior Ct. 174, 412 A.2d 632 (1979). This principle is applicable whether the defendant wishes counsel to file an appeal that counsel believes should not be filed or to prosecute an appeal that counsel believes should not be prosecuted.

Nevertheless, we are not persuaded that we should reinstate appellant’s appeal. As we have indicated, at least to a certain extent the proceeding before the lower court seems to have missed the point. Appellant’s petition cannot be properly decided until there has been a finding of fact, supported by evidence, either that appellant did, or that he did not, know about and agree to counsel’s strategic decision to withdraw the appeal. As we have seen, the lower court made no such finding; nor does the record permit us to make it. Perhaps appellant did not know of the strategy.' However, he was never asked in so many words whether he knew, and he never testified in so many words that he did not know. Perhaps appellant’s counsel secured agreement to his strategy only from appellant’s parents. Again, however, he was never asked in so many words whether that was the case; and there is some indication at one point in his testimony that had he been asked, he might have said that that was not the case.

Since we are unable to determine whether appellant was denied his right to appeal or whether he waived it by agreeing to counsel’s strategy, we must remand so that testimony may be taken on this issue. If on the basis of this testimony the lower court finds that appellant was denied his right to appeal, the court shall grant appellant leave to file an appeal nunc pro tunc. As explained in our recent decisions in Commonwealth v. Miranda, 296 Pa.Superior Ct. 441, 442 A.2d 1133 (1982), and Commonwealth v. May, 296 Pa.Superior Ct. 435, 442 A.2d 1129 (1982), once a defendant has shown that he was denied the right to appeal, the merits of his appeal are to be decided on the appeal to which he was entitled all along, and not by the lower court. If, however, the lower court finds that appellant was informed by counsel of his strategy, and agreed to having the appeal withdrawn, then the court shall reinstate its order denying appellant’s P.C.H.A. petition. See Commonwealth v. Robinson, supra.

The order of the lower court is reversed and the case remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Any appeal must be from such further order as the lower court may enter.

      . On January 31, 1975, counsel had filed a petition for reconsideration. The record does not disclose the disposition of this petition.

      . The appeal was not submitted for decision to us until September 10, 1981.

      . See N.T. 10/14/80, 24-26, where counsel, over objection, expresses his opinion that appellant had waived, his appellate rights. But cf. this testimony with counsel’s testimony, quoted page 132, supra, of “one fuzzy recollection” of speaking to appellant.


text:
    447 A.2d 279
    Robert D. RAMBO, Appellant, v. COMMISSIONER OF POLICE.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1981.
    Filed June 25, 1982.

      Arthur L. Gutkin, King of Prussia, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, submitted a brief on behalf of appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from an order denying appellant’s petition to expunge his arrest record. We reverse.

Appellant was arrested and tried for possession with intent to deliver a controlled substance, in violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(30). The facts giving rise to the arrest were as follows. Appellant signed and accepted delivery at his apartment of two packages. He left the packages unopened on the floor of his apartment and went out. During his absence, police entered his apartment and seized the packages, which they knew from a prior investigation contained hashish. Appellant was arrested when he reported to the police in response to a note left by them at his apartment.

Appellant was tried before a jury and found guilty of possession with intent to deliver the hashish, and was sentenced to three years imprisonment. He appealed the judgment of sentence to this court, arguing, among other issues, that the evidence was insufficient. A majority of this court affirmed. Commonwealth v. Rambo, 250 Pa.Superior Ct. 314, 378 A.2d 953 (1977). However, three judges, HOFFMAN, J., joined by JACOBS, and SPAETH, JJ., dissented, saying:

The Commonwealth’s evidence did not establish that appellant had discovered the contents of the package or that he intended to exercise control over the hashish. He did not open the package to discover the concealed contraband; he merely placed the unopened packages on the floor and left the apartment. In short, appellant performed no act which demonstrated an intent to exercise conscious dominion and control over the contents of the package.
Id., 250 Pa. Superior Ct. at 329, 378 A.2d at 961.

The Supreme Court granted appellant’s petition for allocatur, and, in a unanimous opinion, reversed. Commonwealth v. Rambo, 488 Pa. 334, 412 A.2d 535 (1980). The Court said that the evidence “f[e]ll far short of establishing appellant’s guilt beyond a reasonable doubt”, and that “the conviction here is based only upon conjecture.” Id., 488 Pa. at 336, 412 A.2d at 536. The Court explained:

At trial appellant provided no inculpatory testimony. Rather, appellant testified that he and his brother had arranged for appellant to accept deliveries of pottery, antiques and tapestry. Appellant testified he never knew that his brother was involved in drugs until after appellant’s arrest and that he did not discuss the presence of drugs in the pottery with his brother until several days after his arrest. Assuming, as we must, that this testimony was disbelieved by the jury, still all the evidence presented by the Commonwealth was insufficient to support a conviction. Indeed, the Commonwealth presented no evidence that prior packages received by appellant from his brother contained contraband, or that drugs were ever discussed by appellant and his brother during their visit. Nor was there any other evidence which would establish, beyond a reasonable doubt, that appellant knew the packages contained hashish. In light of the statutory provisions requiring knowledge and the holdings of Commonwealth v. Fortune, [456 Pa. 365, 318 A.2d 327 (1974)], and Commonwealth v. Sterling, [241 Pa.Superior Ct. 411, 361 A.2d 799 (1976)], the judgment of sentence must be reversed and appellant discharged.
Id., 488 Pa. at 339-340, 412 A.2d at 538.

His conviction having been overturned, appellant petitioned the lower court to have his arrest record expunged. The lower court denied the petition, discounting the Supreme Court’s decision by saying, “Such a miracle result for the defendant is not a compelling reason to expunge the record and encourage the sale of drugs without safeguarding the public from a repeat of defendant’s drug pushing activities.” Slip op. at 7. The court continued:

When examining the strength of the Commonwealth’s evidence of petitioner’s guilt, the Court did not consider appellant’s discharge to be equivalent to a jury’s acquittal. According to a twelve person jury, the trial Court, and a majority of the Superior Court, the Commonwealth did not fail in its proof of appellant’s guilt.
Id.

This reasoning is unacceptable.

In the first place, the lower court’s reasoning implies that the weight of judicial opinion is against appellant. The fact is otherwise. Although five judges (the trial judge and four judges of this court), considered the evidence sufficient, nine (three judges of this court and six of the Supreme Court) considered it conjectural.

Beyond this, and a much more fundamental error, is the fact that the lower court’s reasoning fails to comprehend, or ignores, the significance of the Supreme Court’s decision. Neither this court nor any lower court may dismiss a Supreme Court decision as a “miracle result.” The orderly administration of justice would become impossible if the decisions of the court of last resort could be thus ignored. This is particularly so in a criminal case, for then to ignore a decision of the court of last resort is contrary not only to the hierarchy of judicial authority but to the presumption of innocence, which our criminal justice system extends to everyone. Neither the lower court nor this court is entitled to cleave to a personal belief in appellant’s guilt. It is beside the point that a jury and any number of trial and intermediate appellate court judges thought appellant guilty. The Supreme Court has decided otherwise. The significance of its decision is not that appellant is guilty, and the Commonwealth could not prove it, as the lower court seems to think. Rather, it is that appellant is innocent.

Finally, the lower court’s reasoning is contrary to the principles that we have established for deciding expunction cases.

In an expunction case in which the prosecution was terminated for reasons related to the innocence of the accused, the Commonwealth has the burden of showing a compelling reason why an arrest record should be retained. Compare, Commonwealth v. Rose, 263 Pa.Superior Ct. 349, 397 A.2d 1243 (1979) (Commonwealth has burden where accused acquitted before justice of the peace), with Commonwealth v. Mueller, 258 Pa. Superior Ct. 219, 392 A.2d 763 (1978) (accused has burden where discharged for Rule 1100 violation). In Commonwealth v. Capone, 282 Pa.Superior Ct. 458, 461, 422 A.2d 1383, 1385 (1980), where the appellant had been acquitted by a jury, we said:

It is not disputed that appellant was acquitted by a jury as opposed to being discharged as a result of a procedural irregularity. One of the basic tenets of our system of criminal justice is that the accused is innocent until proven guilty beyond a reasonable doubt. We, therefore, refuse to impose upon the appellant the burden of proving his innocence subsequent to acquittal by requiring him to show nonculpability in an expungement hearing.

These cases are controlling here. It is of course true, as both the Commonwealth and the lower court emphasize, that appellant was not acquitted by a jury, but that fact is of no importance. The Supreme Court has decided that he should have been acquitted.

In order to decide whether the Commonwealth has met its burden of showing a compelling reason why an arrest record should be retained, the Commonwealth’s interest in retention must be balanced against the individual’s interest in expunction. In Commonwealth v. Briley, 278 Pa.Superior Ct. 363, 420 A.2d 582 (1980), we said:

Whether in a particular case justice does compel expungement is determined by balancing the individual’s interest in the expungement of his arrest record against the Commonwealth’s interest in retaining the record. This balancing, in turn, involves consideration of such factors as the strength of the Commonwealth’s evidence of the individual’s guilt, the Commonwealth’s reasons for wishing to retain the arrest record, the type and seriousness of the offense, the individual’s age at the time of the arrest, his employment history, whether he has any other criminal record, whether he has a history of drug or alcohol abuse, his stability in the community, the length of time that has elapsed between the arrest and the petition to expunge, and the adverse consequences the petitioner may suffer should expungement be denied. Commonwealth v. Iacino, 270 Pa.Super. 350, 411 A.2d 754 (1979) (concurring opinion by SPAETH, J., joined by CERCONE, P. J.).
Id., 276 Pa.Superior Ct. at 367, 420 A.2d at 585.

Here the record shows that appellant has a considerable interest in having his record expunged. He is—or was at the time of the expunction hearing—32 years old, and has two children. At the hearing he testified that his arrest caused him to lose his job, and also caused him and his family emotional upset and humiliation. N.T. 8/12/80, 20-21. Although he has found other employment, as a sales manager of a security equipment firm, it appears that his employer did not inquire about his arrest record, and that appellant is apprehensive that he may lose his job if his employer learns of his record.

The Commonwealth argues that it has an interest “in discouraging the sale of drugs in order to protect the public.” Brief for Appellee at 6. This argument, like the lower court’s opinion, begs the question. It assumes that appellant was engaged in the sale of drugs, and ignores the fact that appellant has been vindicated. “Punishment of the innocent is the clearest denial of life, liberty and property without due process of law.” Commonwealth v. Malone, 244 Pa.Superior Ct. 62, 366 A.2d 584 (1976) (lower court ordered to hold expunction hearing). We find no compelling reason why the Commonwealth should retain appellant’s arrest record. Commonwealth v. Hill, supra; Commonwealth v. Rose, supra; Commonwealth v. Malone, supra.

Reversed and remanded with instructions to expunge appellant’s record.

      . It is also in order to note in considering the equities of the case, that one of the issues argued by appellant on his appeal to this court was that the lower court erred in refusing his motion for a new trial based on after-discovered evidence. The evidence in question was the proposed testimony of appellant’s brother regarding appellant’s lack of knowledge of the contents of the two packages. Appellant argued that at the time of his trial, his brother was out of the country and unwilling to testify. In affirming appellant’s conviction, a majority of this court said that “[t]he rule on after-discovered evidence does not apply to evidence which is difficult to obtain but only to evidence which is actually not discovered until after trial.” 250 Superior Ct. at 326, 378 A.2d at 959. Since the Supreme Court found the evidence at trial insufficient, it did not need to consider this issue. 488 Pa. at 336 n. 1, 412 A.2d at 536 n. 1. It is thus apparent from the record, not only that appellant was convicted on insufficient evidence, but that he was unable to offer his brother’s testimony in corroboration of his own, that it was his brother, not he, who was involved in drugs and knew that drugs were in the pottery delivered to the apartment.


author:
      WICKERSHAM, Judge:
      WATKINS, Judge,

text:
    447 A.2d 282
    COMMONWEALTH of Pennsylvania v. Ronald I. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 22, 1982.
    Filed June 25, 1982.
    Steven V. Manbeck, Mifflintown, for appellant.
    Michael Johnston, District Attorney, Mifflintown, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   WICKERSHAM, Judge:

On November 12,1980 a criminal complaint was sworn out against Ronald J. Smith of Port Royal, Juniata County, by Trooper G. L. Eaton of the Pennsylvania State Police on a charge of recklessly endangering another person. Specifically, Smith was charged with having recklessly engaged in conduct which placed Douglas Edward Forry in danger of death or serious bodily injury “by pointing a gun in the direction of the victim Forry, and firing a shot in the direction of said victim.”

On January 22, 1981, trial was commenced against Smith before the Honorable Keith B. Quigley, President Judge, and a jury. Following the presentation of the evidence, the jury returned a verdict of guilty of recklessly endangering another person. Post-trial motions were thereafter denied, and Smith was sentenced on June 16, 1981 to undergo imprisonment in a state institution for a period of not less than one nor more than two years. This appeal followed.

Instantly Ronald J. Smith was charged with recklessly endangering Douglas Edward Forry on October 10, 1980 at 7:00 p. m. in Turbett Township, Juniata County. At trial Douglas Edward Forry testified that he was nineteen years of age and resided with his parents at Port Royal, Juniata County. At the time of the alleged crime, the defendant Ronald J. Smith was visiting his parents who are neighbors of the Forrys. The houses of the Forrys and defendant’s parents were perhaps a hundred yards apart separated by a field. On October 10, 1980 about 7:00 p. m., Forry had been working on his car, a 1969 Chevelle. He was driving the car along the field next to his neighbor Ralph Bomberger. It was dark and he had headlights on. As he came within twenty-five yards, at the most, of the side porch of the home of defendant Ronald J. Smith, he saw Smith whom he had known seven or eight years. His testimony followed:

Q. Exactly what position was he in? I mean was he sitting, standing up, laying down, or what?
A. He was sort of on his knees, or something like that.
Q. Both knees.
A. No, just the one.
Q. All right. What else, if anything, did you notice about him?
A. Well, he had a rifle in his hand.
Q. ... When you first saw him was your car moving?
A. Yes.
Q. Did you continue moving, or did you stop after you saw him?
A. I continued moving.
Q. You said something about a shot next. Did you hear a shot?
A. Yeah.
Q. Now, were you looking at Mr. Smith directly at the time you heard the shot?
A. No.
Q. All right, where were you looking?
A. Where I was going.
Q. How long after the time you first saw Mr. Smith in that posture that you just demonstrated did you hear the shot?
A. A couple of seconds.
Q. At the time you saw Mr. Smith in the posture you described, did you see anybody else in the area?
A. No.
Q. Not only the area of his house but anybody else on the road?
A. No.
Q. Were there any other vehicles around besides yours at that time?
A. No.
Q. Now this shot that you said you heard, what kind of a shot was it?
A. A twenty-two.
Q. Did you see the discharge of a firearm?
A. No.
Q. Did you see or hear a projectile going overhead?
A. No.
Q. Going into the ground?
A. (Shook head no.)

Record at 18-14, 15, 21.

The only other relevant testimony from the Commonwealth came from Jeffrey A. Funk who testified that he was in the home of defendant Smith more than a month after the incident on October 10, 1980 and observed a Mossburg .22 caliber rifle. He also testified that as he was leaving the defendant’s home he noticed “in the grass” a “spent .22 cartridge casing.”

It is from this combination of evidence that the Commonwealth would have us find that Ronald J. Smith was guilty beyond a reasonable doubt of recklessly endangering another person. We are unable to so conclude.

There was evidence that Ronald J. Smith was holding a rifle and there was evidence from which a jury could conclude that the rifle was fired; however, there was no evidence that the rifle was fired at Douglas Forry. Just as plausible would be the conclusion that the rifle was fired into the air. There is no competent evidence from which a jury could conclude that Douglas Forry at any time was placed in danger of death or serious bodily injury. We conclude, therefore, that the evidence presented at trial was insufficient, as a matter of law, to sustain the conviction.

Judgment of sentence reversed and defendant discharged.

WATKINS, J., files a concurring opinion.

WATKINS, Judge,

concurring.

We concur with the Majority’s reasoning to the effect that the evidence in this case was insufficient to sustain the conviction for recklessly endangering because it was impossible to establish that the defendant had fired the shot at Douglas Edward Forry or anyone else and thus, the elements of recklessly endangering have not been established. We did dissent in the case of Commonwealth v. Gouse, 287 Pa.Superior Ct. 120, 429 A.2d 1129 (1981) and would still adhere to the reasoning set forth in that dissent with respect to the facts of that case.

      . § 2705. Recklessly endangering another person
      A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

      . Cf. Commonwealth v. Gouse, 287 Pa.Super. 120, 429 A.2d 1129 (1981) (Opinion by President Judge Cercone) where we had occasion to consider another recklessly endangering conviction. In Gouse the Commonwealth evidence was that appellant was seated in his vehicle and shouted at two men who were in another car. They pulled their vehicle alongside of appellant’s vehicle and an argument ensued. During the argument appellant Gouse raised a shotgun and pointed it at the two men for something less than one minute. There was no evidence that the shotgun was loaded. We held that the evidence was insufficient to convict Gouse of recklessly endangering another person.


author: WICKERSHAM, Judge:

text:
    447 A.2d 284
    Blanche M. GUITON v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 2, 1982.
    Filed June 25, 1982.
    Vacated and remanded Dec. 29, 1982.
    See - A.2d -.

      Charles A. Shaffer, Wilkes-Barre, for appellant.
    Edward Pope Little, Montrose, for appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   WICKERSHAM, Judge:

This is yet another case in which our court is called upon to untangle the knotted language of the Pennsylvania No-Fault Motor Vehicle Insurance Act. The issue in this appeal involves the construction of the statute of limitations provisions contained in section 106(c)(2) of the No-Fault Act.

The facts of this case may be summarized as follows. On March 4, 1977, appellee’s spouse, James W. Guitón, was killed in an automobile accident. At the time of the accident, James Guitón was covered by a no-fault insurance policy issued by appellant, Pennsylvania National Mutual Casualty Insurance Company. Following the accident, appellee, Blanche M. Guitón submitted a claim to appellant for no-fault benefits. On August 4, 1977, appellant paid Blanche Guitón $1,500.00 for funeral expenses, and $10.00 for ambulance expenses, and in October of 1977, appellant made a final payment to Blanche Guitón of $5,000.00 for survivor’s loss benefits.

On November 26, 1979, Blanche Guitón instituted suit against appellant by filing a praecipe for writ of summons, and on January 7, 1980, she filed a complaint in assumpsit against appellant seeking work loss benefits under her deceased spouse’s no-fault insurance policy. Appellant filed an answer and new matter to Blanche Guiton’s complaint in which it raised the defense of the statute of limitations provisions contained in section 106(c)(2) of the No-Fault Act. After the pleadings were closed, appellant filed a motion for judgment on the pleadings in which it again raised the defense of the statute of limitations. The lower court denied appellant’s motion for judgment on the pleadings by order dated May 17,1981, but certified the order for immediate appeal to our court in accordance with 42 Pa.C.S. § 702(b). Thereafter, appellant petitioned our court for permission to take an immediate appeal from the lower court’s order in accordance with Pa.R.A.P. 1311, and we granted the petition by order dated July 9, 1981.

Section 106(c)(2) of the No-Fault Act provides in pertinent part that “If survivor’s benefits have been paid to any survivor, an action for further survivor’s benefits by either the same or another claimant may be commenced not later than two years after the last payment of benefits.” In the instant case, appellant made a final payment to Blanche Guitón of $5,000.00 for survivor’s loss benefits in October of 1977, and Blanche Guitón commenced the instant action for work loss benefits on November 26, 1979—more than two years later.

The lower court found that the limitation contained in section 106(c)(2) on actions for further survivor’s benefits applies only to actions for further survivor’s loss benefits and does not apply to subsequent actions for work loss benefits. The lower court found no limitation in the No-Fault Act on actions for work loss benefits and, consequently, held that the six year limitation period applicable to general contract actions governed this action for work loss benefits. We agree with the findings and holding of the lower court.

In construing the language of the No-Fault Act we are aided by a statement of Legislative findings and purposes. The General Assembly found that “the maximum feasible restoration of all individuals injured and compensation of the economic losses of survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce”. 40 P.S. § 1009.102(a)(3). It therefore declared its purpose “to establish ... a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.” 40 P.S. § 1009.102(b). Additionally, the Pennsylvania Supreme Court recently stated in Allstate Insurance Company v. Heffner, 491 Pa. 447, 455, 421 A.2d 629, 633 (1981), aff’g 265 Pa.Super. 181, 401 A.2d 1160 (1979), that:

Historically, the courts of this Commonwealth have routinely followed this spirit and found coverage for the insured in close or doubtful insurance cases. The tendency has been that if we should err in ascertaining the intent of the legislature or the intendment of an insurance policy, we should err in favor of coverage for the insured. Section 201(a) of the No-Fault Motor Vehicle Act provides

that “any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this act.” Basic loss benefits are listed under section 202 of the act as follows:

(a) Allowable expense limits.—Allowable expense, as defined in section 103 of this act shall be provided or the equivalent in the form of a contract to provide for services required.
(b) Work loss limits.—Work loss, as defined in section 103 shall be provided:
(1) up to a monthly maximum of:
(A) one thousand dollars ($1,000) multiplied by a fraction whose numerator is the average per capita income in this Commonwealth and whose denominator is the average per capita income in the United States, according to the latest available United States Department of Commerce figures; or
(B) the disclosed amount, in the case of a named insured who, prior to the accident resulting in injury, voluntarily discloses his actual monthly earnings to his obligor and agrees in writing with such obligor that such sum shall measure work loss; and
(2) up to a total amount of fifteen thousand dollars ($15,000).
(c) Replacement services losses.—Replacement services loss, as defined in section 103 shall be provided up to a daily maximum of twenty-five dollars ($25) for an aggregate period of one year.
(d) Survivors losses.—Survivors loss, as defined in section 103 shall be provided in an amount not to exceed five thousand dollars ($5,000).

Allowable expenses under section 202(a) are defined in pertinent part in section 103 as follows:

‘Allowable expense’ means reasonable charges incurred for, or the reasonable value of (where no charges are incurred), reasonably needed and used products, services, and accommodations for:
(A) professional medical treatment and care;
(B) emergency health services;
(C) medical and vocational rehabilitation services;
(D) expenses directly related to the funeral, burial, cremation, or other form of disposition of the remains of a deceased victim, not to exceed one thousand five hundred dollars ($1,500);

It is clear under the No-Fault Act and the existing appellate case law that an action for allowable expenses under § 202(a) may be brought by a victim, his estate or any survivor of a deceased victim. Wright v. Allstate Insurance Company, 271 Pa.Super. 559, 414 A.2d 395 (1979). An action for work loss may be brought by a victim, his estate, Pontius v. United States Fidelity and Guaranty Company (Consolidated with Allstate Insurance Company v. Heffner, supra for review by the Pennsylvania Supreme Court); or any survivor of a deceased victim. Allstate Insurance Company v. Heffner, supra. An action for replacement services losses may be brought by a victim and an action for survivors losses may be brought by any survivor of a deceased victim.

In Wright v. Allstate Insurance Company, supra, we held that reimbursement for funeral expenses is not a survivor’s benefit within the meaning of the statute of limitations provisions of the No-Fault Act. In Wright, an action for funeral expenses was instituted by a survivor of a deceased victim against Allstate Insurance Company. Allstate filed a motion for summary judgment in which it raised the defense of the statute of limitations provided in section 106(c)(2) of the No-Fault Act. Allstate contended that the term “survivors benefits” contained in section 106(c)(2) was intended to apply to all actions for any benefits available under the No-Fault Act. The lower court agreed with Allstate and, accordingly, granted its motion for summary judgment. We reversed the holding of the lower court. We found that the victim’s estate is the entity which is primarily liable for funeral expenses and, therefore, although the survivor may indirectly benefit, the reimbursement of funeral expenses is primarily a benefit of the estate and not the survivor. We held, therefore, that the reimbursement of funeral expenses is not a “survivor’s benefit” within the meaning of the statute of limitations provisions of the No-Fault Act. We found that the No-Fault Act provided no limitations period for commencing actions for funeral expenses and that, consequently, the six year statute of limitations for general contract actions applied.

In Allstate Insurance Company v. Heffner, supra, the Pennsylvania Supreme Court affirmed our holding that survivors of deceased victims are entitled to receive work loss benefits under the No-Fault Act. In Heffner, Allstate Insurance Company argued that providing work loss benefits in addition to survivor’s loss benefits would result in overlapping coverage and double payments. The supreme court responded that:

it is probable that the courts will have little difficulty in intermeshing these two forms of basic loss benefits in order to avoid any windfall. In the case of work loss, as already discussed, the Act is simply providing a certain measure of Survival Act damage, on a no-fault basis. The amount will then neatly coordinate with recovery of any excess amount in a tort action under Section 301(a)(4). Similarly, with respect to so much of survivor’s loss recovery as represents contributions to survivors, this is simply no-fáult wrongful death recovery. There is in fact no duplication of recovery in the same sense that third-party recovery in a wrongful death and survival claim involve different economic loss claims. They do not overlap.

Supra, 491 Pa. at 459, 421 A.2d at 635 (quoting D. Shrager, ed., The Pennsylvania No-Fault Motor Vehicle Insurance Act, at 112 (1979)).

The statutory provisions for wrongful death and survival actions may be found at 42 Pa.C.S. §§ 8301 and 8302 respectively. In Miller v. Preitz, 422 Pa. 383, 221 A.2d 320 (1966), the Pennsylvania Supreme Court stated that the wrongful death and survival statutes

‘are entirely dissimilar in nature. The [former] represents a cause of action unknown to the common law * * *. The [latter] is not a new cause of action at all, but merely continues in his personal representative the right of action which accrued to the deceased * * *.’

Id., 422 Pa. at 387, 221 A.2d at 322, quoting from Pezzulli v. D'Ambrosia, 344 Pa. 643, 647, 26 A.2d 659, 661 (1942) (footnote omitted).

A survival action is brought by the administrator of the deceased plaintiff’s estate in order to recover damages to the estate, Prince v. Adams, 229 Pa.Super. 150, 324 A.2d 358 (1974), whereas a wrongful death action may be brought by certain designated relatives of the decedent in order to recover their personal damages resulting from decedent’s death. In re Estate of Pozzuolo, 433 Pa. 185, 249 A.2d 540 (1969). Of course, under the No-Fault Act, an individual survivor as well as the administrator of the deceased victim’s estate may bring an action for work loss benefits despite the fact that they are in the nature of Survival Act damages. Allstate Insurance Company v. Heffner, supra (survivor may bring an action for work loss benefits); Pontius v. United States Fidelity and Guaranty Company, supra. The same was true in Wright v. Allstate Insurance Company, supra, where the action for funeral expenses was brought by an individual survivor. As in Wright where we found that reimbursement is primarily a benefit of the deceased victim’s estate, we believe that reimbursement for work loss is also primarily a benefit of the deceased victim’s estate. Accordingly, as in Wright, we do not believe that work loss benefits are “survivor’s benefits” within the meaning of the statute of limitations provisions of the No-Fault Act and, therefore, the six year statute of limitations for general contract actions applies.

Order of court affirmed.

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

      . We note that our holding in the instant case is supported by our recent opinion in Sachritz v. Pennsylvania National Mutual Casualty

        Insurance Company, 293 Pa.Super. 483, 439 A.2d 678 (1981) where we stated that “[pjost-mortem work loss benefits, i.e., those work loss benefits accruing after the date of the deceased victim’s death, are recoverable by the survivors of a deceased victim, but are not considered survivor’s benefits under the Act.” Id, 293 Pa.Superior Ct. at 485, 439 A.2d at 679 (citation omitted). Sachritz involved an action for work loss benefits brought after the insured’s death and more than two years after the payment of no-fault benefits which included work loss benefits. We held in Sachritz that appellant’s action was barred by the two year statute of limitations set forth in section 106(c)(1) of the No-Fault Act. Section 106(c)(1) provides in pertinent part that “[i]f no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits ... may be commenced not later than two years after the last payment of benefits.” (Emphasis added). In Sachritz we stated that “[b]ecause appellant had already received some work loss benefits when she brought this action to recover post-mortem work loss benefits, her action had to be commenced within two years of the date of the last payment of benefits ...” Supra, 293 Pa.Superior Ct. at 486, 439 A.2d at 679. Work loss benefits were not paid prior to the filing of the complaint in the instant case, and, therefore, section 106(c)(1) of the No-Fault Act is not applicable.


author: WICKERSHAM, Judge: CIRILLO, Judge,

text:
    447 A.2d 288
    William MOORE and Barbara Moore, Appellants, v. CLABELL-HICKORY, A General Partnership, and Clabell Company, A General Partnership.
    Superior Court of Pennsylvania.
    Argued March 8, 1982.
    Filed June 25, 1982.

      Daniel H. Shertzer, Lancaster, for appellants.
    Christopher S. Underhill, Lancaster, for appellee.
    Before CAVANAUGH, WICKERSHAM and CIRILLO, JJ.
   WICKERSHAM, Judge:

On May 12, 1978 William and Barbara Moore filed a complaint in trespass in the Court of Common Pleas of Lancaster County against Clabell-Hickory, a general partnership and Clabell Company, a general partnership, defendants. In the complaint it was alleged that the defendants were the operators of a certain apartment complex known as the Village of Old Hickory, in the township of Manheim. Further it was alleged that on June 25, 1976, an agent or employee of the defendants “unlawfully sold a substantial quantity of beer to the plaintiff, William Moore, at the pro shop at the Village of Old Hickory.” Further, plaintiffs allege that as a result of said unlawful sale, the plaintiff William Moore became visibly intoxicated, entered the swimming pool area and jumped into the pool resulting in a cervical spine fracture and other injuries.

According to the sheriff’s return of service, the complaint was served on May 19, 1978 on one Robert Sowers at 45 E. King Street in Lancaster who was described as “manager” in the sheriff’s return. On June 5, 1978 an appearance of counsel was entered by Barley, Snyder, Cooper and Barber “on behalf of the Defendants.” On June 30, 1978 an appearanee of counsel was entered by Hartman, Underhill and Brubaker “on behalf of Clabell-Hickory and Clabell Company, Defendants.”

On July 14, 1978, an answer was filed by Hartman, Underhill and Brubaker, Esquires on behalf of “Defendants” with an affidavit executed by Clyde W. Horst, who identified himself as “a general partner in Clabell-Hickory and Clabell Company.” In the body of the answer so filed, both defendants admitted that they were general partnerships and further that Clabell-Hickory had a place of business at 717 Olde Hickory Road in Lancaster. It was denied, however, that the defendants were the operators of an apartment complex known as the Village of Olde Hickory, Manheim Township. To the contrary, Clabell-Hickory alleged in the answer that it was the owner and the operator of the Olde Hickory Racquet Club only and had no connection whatsoever with the operation of the apartment complex known as the Village of Olde Hickory. It was further alleged that Clabell Company also had no connection with the apartment complex known as the Village of Olde Hickory. Finally it was denied that any employee or agent of “the Defendants” sold beer to the plaintiff William Moore either lawfully or unlawfully on June 25, 1976. In paragraph four of the answer, the defendants opined that “if the Plaintiff obtained beer from anyone on or about June 25, 1976, it was from David Collingwood, who was the golf pro in charge of the Pro Shop at the Village of Olde Hickory Golf Club and who was at the time in question an independent contractor.”

On July 24,1978 plaintiffs William and Barbara Moore, by their attorneys, filed preliminary objections to the defendants’ answer alleging that, inter alia, the plaintiffs had filed their complaint on May 12,1978, which complaint was served on the defendants on May 19, 1978 and that an appearance had been entered “for the defendants” on June 5, 1978 and further that the statute of limitations for the action against the defendants ran out on June 25, 1978 and it was not until July 14, 1978, without leave of court, that the defendants filed an answer to the plaintiffs’ complaint “denying that the defendants were the operators or in any way connected with an apartment complex known as the Village of Olde Hickory and denying that the person who sold beer or any other alcoholic beverages to the plaintiff, William Moore, on or about June 25, 1976, was agent of the defendant’s.” The gravaman of the preliminary objections is found in paragraph six thereof wherein it was alleged that “due to the lapse of time between the service of the plaintiffs’ complaint on the defendant and the defendants’ answer, the plaintiffs are now prejudiced by the defendants’ late answer denying that they are connected with the Village of Olde Hickory and denying agency.” Plaintiffs requested that the defendants’ answer be stricken.

By order of January 18, 1979, the Honorable D. Richard Eckman overruled the plaintiffs’ preliminary objection in the nature of a motion to strike the defendants’ answer. Judge Eckman held that “the equities in the present case favor the Defendants.” In his opinion accompanying his order of January 18, 1979, Judge Eckman stated that:

The general rule is that a lapse of time sufficient to cause the Statute of Limitations to be a bar to a suit against a third party when ownership and agency are denied, results in sufficient prejudice to the plaintiff to allow him to strike a late answer.

Lower ct. op. at 1.

Relying upon a holding from Allegheny County, Judge Eckman concluded that the plaintiffs had contributed “to the late filing of an answer” by their delay in filing their complaint until just before the running of the statute. The simple fact remains, however, that had defendants responded timely to plaintiffs’ complaint, that is by the first week of June 1978, plaintiffs would have had an opportunity to join other defendants who might be liable on their cause of action before the statute of limitations ran on June 25,1978.

The Pennsylvania Rules of Civil Procedure, in effect at the time of the filing of the complaint in this case, provided:

Rule 1026. Time for Filing. Notice to Plead Every pleading subsequent to the complaint shall be filed within twenty (20) days after service of the preceding pleading, but no responsive pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead.

Instantly, the complaint did contain a notice to plead. Furthermore, plaintiffs filed their preliminary objections in the nature of a petition to strike defendants’ answer in timely fashion.

We are unable to conclude, under the facts and circumstances of this particular case, that the equities favor the defendants. To the contrary, justice and fair play favors the position of the plaintiffs and we conclude that the lower court’s failure to grant plaintiffs’ preliminary objection in the nature of a motion to strike the defendants’ answer was an abuse of discretion which has caused manifest and palpable injury to plaintiff. Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971).

Reversed and remanded for further proceedings not inconsistent with this opinion.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent.

The majority holds that the lower court erred in failing to grant the plaintiffs’ Motion to Strike the defendants’ Answer. In its Opinion, the majority found that had the defendants responded timely to the complaint, the plaintiffs would have had time to join other defendants who might be liable in this suit. However, under the Pennsylvania Rules of Civil Procedure, the time within which pleadings may be filed can be extended.

Rules relating to the manner of commencing an action or the time for serving process or for filing or serving pleadings may be waived by agreement of the parties. The court on cause shown may extend or shorten the time within which pleadings shall be filed or process served.

Pa.R.C.P. No. 1003.

This provision is designed to enable the courts to supervise the conduct of litigation and to prevent unfair prejudice to both sides. That purpose was indeed served in this case.

The preliminary objections were briefed and, after argument, the lower court determined that the answer should stand. The Honorable D. Richard Eckman, in his Order of January 18, 1979, stated, “We are of the opinion that the equities in the present case favor the defendants.” I am compelled to agree with Judge Eckman.

If the plaintiff has been prejudiced by the late answer, because of the running of the statute of limitations, the fault lay as much, or even more, with the plaintiffs than with the defendants. The plaintiffs had control of their cause of action for almost two years and had every opportunity to investigate all of the facts, including the identity of potential defendants.

The consequences of the plaintiffs’ failure to sue the right parties was the direct result of their own actions. Therefore, I would hold that the court did not abuse its discretion when it permitted the defendants more than twenty days to file an answer. Compare: Turner v. Hebner, 276 Pa.Super. 341, 419 A.2d 488 (1980).

Additionally, the lower court properly determined that the plaintiffs could not amend their complaint to rectify their error in suing the wrong defendants. The plaintiffs sought to add new and distinct parties to the litigation after the expiration of the statute of limitations.

Rule No. 1033 of the Pennsylvania Rules of Civil Procedure provides for the amendment of a complaint to “change the form of action” or “correct the name of a party.” However, the rule will not permit the addition of new and distinct parties to the litigation, particularly where the statute of limitations has run against the new causes of action. Cianchetti v. Kaylen, 241 Pa.Super. 437, 361 A.2d 842 (1976), Hillbrook Apartments, Inc. v. Nyce Crete Company, 237 Pa.Super. 565, 352 A.2d 148 (1975).

Accordingly, I would affirm the Order of the Court below.

      . An action to recover damages for injuries to the person caused by the wrongful act or neglect or unlawful violence or negligence of another must be commenced within 2 years. (42 Pa.C.S. § 5524(2)). This limitation applies to all injuries, whether inflicted by corporations or individuals. The statute of limitations with respect to personal injury actions does not destroy a personal injury action, but rather creates a waivable defense to the action.

      . Such was not the case in Hahnemann Medical College and Hospital of Philadelphia v. Hubbard, 267 Pa.Super. 436, 406 A.2d 1120 (1979) where we considered an appeal from an order striking preliminary objections to the lower court’s jurisdiction. The appellant in Hahnemann had filed untimely preliminary objections but the appellee’s motion to strike appellant’s preliminary objections was itself untimely. We said:
      When a party, such as appellant here, files untimely preliminary objections, the opposing party may object to them as untimely. In other words, the failure to take a default judgment does not preclude a party from objecting to untimely preliminary objections. However, the procedure prescribed by the rules must be followed. Here, appellee’s counsel did not follow that procedure. Appellee’s motion to strike appellant’s preliminary objections was itself untimely, having not been filed until November 1, 1977, which was after the twenty-day period prescribed by Rule 1026 as the period within which any pleading subsequent to the complaint must be filed; an objection to preliminary objections as untimely is properly characterized as a ‘preliminary objection to preliminary objections,’ and is a pleading, 2 Goodrich-Amram 2d 1017(b):5, 43-44 (1976). Concededly, appellee’s counsel did not actually receive the preliminary objections until October 20, 1977. This was not in any way the fault of appellant’s counsel, however, as service was made in accordance with Rule 1027, and receipt was delayed only because appellee’s counsel failed to provide an adequate forwarding address when he moved his offices.

        In fairness, counsel for both parties should be held to the same standard. While appellant’s preliminary objections were untimely, it was the responsibility of appellee’s counsel to file his own timely preliminary objection to the preliminary objections. 2 Goodrich-Amram 2d 1026:1, 229 (1976). Appellee’s counsel’s failure to do so constituted a waiver of the untimeliness of appellant’s preliminary objections.

        Id., 267 Pa.Superior Ct. at 441, 406 A.2d at 1123 (emphasis added).

       Standard Pennsylvania Practice 2d, § 13:38, 443-14 (footnotes omitted).