author: CERCONE, Judge:

text:
    498 A.2d 957
    COMMONWEALTH of Pennsylvania v. Thomas CRAIG, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1985.
    Filed Sept. 20, 1985.

      Michael A. Klimpl, Doylestown, for appellant.
    Colin M. Jenei, Assistant District Attorney, Newtown, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   CERCONE, Judge:

On March 24, 1980, pursuant to a plea agreement, appellant entered a plea to second degree murder and robbery. Appellant was sentenced to life imprisonment on April 3, 1980, and to a concurrent term of ten to twenty years on the robbery charge. At the time of his guilty plea and sentencing, appellant was represented by the Bucks County Public Defender’s Office.

In January, 1983, appellant filed a petition for relief under the Post Conviction Hearing Act (PCHA), challenging the propriety of the plea. Private counsel was appointed to represent appellant. Pursuant to the petition, a hearing was held on January 13, 1984, at which time appellant’s request for relief was denied. This appeal followed.

On appeal, appellant is claiming that his trial counsel was ineffective for failing to seek the suppression of inculpatory statements he had given during a custodial interrogation. He challenges the admissibility of those statements by arguing that he had not been given Miranda warnings before making his initial statement, which rendered inadmissible that statement and tainted subsequent post-warning statements. Appellant also argues that he should have been provided private defense counsel because a secretary in the Public Defender’s office was the estranged wife of the prosecuting police officer. Having examined the record, we are satisfied that neither claim has merit and, accordingly, we affirm the order of the court below.

To better understand the holding in this case, we will recite the facts as found by the lower court. This will include evidence of the defense which, read in the context of the overall record, is uncontradicted. See Commonwealth v. Dixon, 475 Pa. 17, 20 n. 1, 379 A.2d 553, 554 n. 1 (1977).

At the hearing it was established and we found as specific facts that the defendant arrived at Warrington Township Police Headquarters on November 7, 1979 at some time shortly after 12 noon. He had been at work that morning and was requested to go to headquarters by a member of the Warrington Township police department. He was not under arrest and could have refused to go to headquarters had he wished. At headquarters he was met by detectives John Rice and John Mullen, both of whom were Bucks County detectives employed by the Bucks County District Attorney’s office. He was not then arrested and was free to leave at any time he wished. The officers advised the defendant that they were investigating the murder involved in this case. Defendant was told that the victim’s body had been found in Easton and that the officers had some information that the defendant had likewise been in Easton. No questions had been asked nor had the defendant been asked to give a statement of any kind. The defendant then advised the officers that he would tell them what happened. The officers then told the defendant not to say anything and they then proceeded to advise him of his various constitutional rights as mandated by Miranda v. Arizona. The defendant then gave an oral statement of an inculpatory nature. When that occurred, the defendant was placed under arrest and he was again advised of his rights under Miranda, both orally and in writing. Defendant acknowledged on both occasions that he understood these rights and after the rights had been given the second time he then gave a written statement in the presence of a court reporter. When the two statements were given the defendant had been neither threatened nor assaulted and was in complete control of his faculties. He gave intelligent answers to all questions and manifested no effects of any drugs or alcohol. He was alert and responsive, in fact he had worked that morning.

In addition, both a Commonwealth witness and appellant testified that upon reaching the police station, appellant made all statements in question after being taken into a room, with the door closed, by the two detectives. Appellant never requested to leave but he testified that he didn’t really feel he could leave because of the way the detectives spoke with authority.

Based on the testimony presented at the P.C.H.A. hearing, the lower court determined that the appellant was not placed under arrest until after he had made the first inculpatory statement and, therefore, was not entitled to Miranda warnings prior to that time. Such a conclusion evidences a misunderstanding of what constitutes a “custodial interrogation”. The test for determining whether a suspect is being subjected to custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation. See Commonwealth v. Chacho, 500 Pa. 571, 577-80, 459 A.2d 311, 314 (1983). See also Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

Appellant had been picked up at his place of work by a police officer and transported to police headquarters. He was met by two detectives, taken into an interrogation room and the door was closed. At that point, appellant was told that he was suspected of being involved in a recent murder. Although appellant had not yet been asked a direct question, we find this scenario is sufficient to constitute custodial interrogation or its functional equivalent as defined in Rhode Island v. Innis, supra. Appellant was entitled to Miranda safeguards at the time he entered the interrogation room with the two detectives. The following opinion is predicated on that factual premise.

In Pennsylvania, there exists a well-established presumption that counsel is effective, and the burden of establishing ineffectiveness of counsel rests on the appellant. See Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). Equally well settled is the proposition that counsel will not be deemed to be ineffective for failing to assert a meritless claim and that counsel’s action or inaction must be prejudicial to the defendant for a finding of ineffectiveness to arise. Commonwealth v. Vesay, 318 Pa.Super. 320, 326, 464 A.2d 1363, 1367 (1983). See also Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Thus, it has been established that the threshold question in this Court’s inquiry is whether the underlying claim is of arguable merit. Commonwealth v. DiVentura, 270 Pa.Super. 471, 473, 411 A.2d 815, 816 (1979). Herein, that claim turns to whether the admission of appellant’s inculpatory statements was proper.

Appellant asserts that his incriminating statement (to the effect that he would tell the detectives everything they wanted to know) was given before he had been warned of his constitutional rights and could have been suppressed had trial counsel made the proper motion. He further asserts that his post-warning oral and written statements could have been suppressed also because they were “tainted” by the earlier, unwarned statements. Finally, appellant argues that the failure of trial counsel to move to suppress these statements induced him to plead guilty and constituted ineffective assistance of counsel.

Although we agree that the first inculpatory statement constituted a technical violation of Miranda and could have been suppressed, we do not believe that this requires a disturbance of the verdict. We reach this conclusion based on our judgment that the subsequent statements, which were more detailed and comprehensive, were not suppressible and thereby rendered any consideration of the initial statement harmless. See Commonwealth v. Garvin, 335 Pa.Super. 560, 566, 485 A.2d 36, 39 (1984) (en banc) (“A finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant.) See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Appellant contends that these later statements were tainted by the illegality found in the eliciting of the original admission. This issue is controlled by the Pennsylvania Supreme Court’s decision in Commonwealth v. Chacko, supra, wherein the court stated:

It is well established that a confession obtained after a suspect has been adequately advised of his constitutional rights is not ipso facto inadmissible because an earlier confession or inculpatory statement was made in the absence of a warning as to those rights, (citations omitted) However, the burden is on the Commonwealth to demonstrate that the subsequent statement was not the product of the exploitation of the original illegality and was obtained under circumstances sufficiently distinguishable to purge it of its original taint, (citations omitted) The causal connection can be broken by a sufficient showing that the confession was “an act of free will.” (citations omitted)

500 Pa. at 581, 459 A.2d at 316.

The question then is whether the Commonwealth has shown that the subsequent statement was not the product of the exploitation of the original illegality. The Commonwealth’s burden has been modified, or defined more narrowly, by the recent United States Supreme Court decision in Oregon v. Elstad, — U.S. —, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). In Elstad, the Court was faced with this same issue in a similar factual situation. There, the Supreme Court stated:

It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

Id. at —, 105 S.Ct. at 1293:

[T]here is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary, (footnote omitted) The relevant inquiry is whether, in fact, the second statement was voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements.

Id. at —, 105 S.Ct. at 1298. The essence of the Elstad opinion is that unless the original illegal statement was not voluntarily made,

“a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible. The warning conveys the relevant information and thereafter the suspect’s choice whether to exercise his unfettered priviledge to remain silent should ordinarily be viewed as an ‘act of free will.’ Wong Sun v. United States, [supra ].”

Id. at —, 105 S.Ct. at 1294.

Based on the reasoning in Oregon v. Elstad, in this situation the Commonwealth is required to show that the initial inculpatory statement was not coerced and that the subsequent waiver was made knowingly and intelligently. The lower court implicitly found that the Commonwealth had met this dual burden when it stated: “When the two statements were given the defendant had been neither threatened nor assaulted and was in complete control of his faculties. He gave intelligent answers to all questions and manifested no effects of any drugs or alcohol.” These findings are supported by the record and appellant does not dispute them. Likewise, the lower court found that appellant had knowingly and voluntarily waived his constitutional rights under Miranda.

We turn now to appellant’s claim that trial counsel was ineffective because of a potential conflict of interest. This claim is totally without merit. Trial counsel fully disclosed the situation to the appellant as well as to the trial court and the prosecuting attorney prior to participating in appellant’s defense. Appellant raised no objection at the time and, even now, does not point to any specific harm he suffered as a result of the alleged conflict of interest. Therefore, he has failed to adequately raise an ineffectiveness claim. See Commonwealth v. Wallace, 495 Pa. 295, 433 A.2d 856 (1981). This case need not be remanded for an evidentiary hearing for appellant has failed to allege a claim which would be of arguable merit. See Commonwealth v. Smith, 321 Pa.Super. 170, 467 A.2d 1307 (1983).

Accordingly, the order of the court below is affirmed.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . While appellant does not cite it, he is obviously referring to the holding in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and its progeny.


source: Caselaw Access Project

author: TROMMER, Judge:

license: Public Domain

text:
    498 A.2d 961
    Barbara McKNIGHT v. James McKNIGHT, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed Sept. 20, 1985.

      Jules Mermelstein, Hatboro, for appellant.
    Mercer D. Tate, Philadelphia, for appellee.
    Before McEWEN, CERCONE and TROMMER, JJ.

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

   TROMMER, Judge:

Appeal is taken from the judgment entered pursuant to an order of the trial court partitioning land held by the parties as tenants in common. We reverse.

Appellant and appellee were married on February 28, 1953. On June 2, 1959, they purchased the real estate in question as tenants by the entireties. On July 19, 1982, they were granted a divorce, pursuant to which neither party requested equitable distribution of the marital property. On November 4, 1983, appellee filed a Complaint in Partition, seeking partition and division of the premises in accordance with 68 P.S. § 501, et seq. On February 1, 1984, subsequent to a hearing on appellee’s Motion for Judgment on the Pleadings, the trial court ordered that the property be partitioned and the proceeds divided equally between the parties, and appointed a Master in Partition.

Appellant contends on appeal that the trial court erred in granting the motion because he had alleged the equitable defense of lack of clean hands. The defense consisted of his reliance on an oral agreement between the parties that he would keep the subject real estate while appellee would keep some real estate which she had purchased in her name alone.

Initially, we note that subsequent to the parties’ divorce, they owned the real estate as tenants in common pursuant to the partition statute:

Whenever any husband and wife, hereafter acquiring property as tenants by entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value ...

Act of May 17, 1949, P.L. 1394, § 1, 68 P.S. § 501.

The parties’ alleged oral agreement regarding the real estate was to transfer appellee’s share of the property to appellant. As this agreement transferred an interest in the property, it would ordinarily be unenforceable as violative of the statute of frauds. Act of March 21, 1772, 1 Sm.L. 389 Section 1, 33 P.S. § 1. However, an exception is recognized for an oral partition of property held by tenants in common. This Court stated in Bolinger v. Barnhardt, 64 Pa.Super. 243, 255 (1916):

As pointed out by Justice MITCHELL in Byers v. Byers, 183 Pa. 509 [38 A. 1027], the cases have drawn the line between a mere parol agreement and an agreement followed by acts of the parties on the land itself indicating several possessions taken in execution of the agreement. ‘The former is inoperative, but the latter is valid.’ Its validity does not rest alone on the application of equitable principles to the part performance of a parol agreement relating to land but on the nature of tenancy in common. ‘As each tenant has not only title, but joint and several possession of the whole and of every part, the change to a title in severalty in any specified part is not such a transfer of title to land as is within the mischief contemplated by the statute of frauds’: Byers v. Byers, supra; Mellon v. Reed, 114 Pa. 647 [8 A. 227]; McKnight v. Bell, 135 Pa. 358 [19 A. 1036]; Wolf v. Wolf, 158 Pa. 621 [28 A. 164]. ‘The result of such a partition does not convey a merely equitable right, but a right recognized and which will be enforced at law’: McKnight v. Bell, supra.

See also Wenger v. Wenger, 57 Lanc.Rev. 171 (1960), and Williamson v. Williamson, 198 Fayette L.J. 186 (1950).

A judgment on the pleadings should not be entered when there are unknown or disputed issues of fact. Gallo v. J.C. Penney Cas. Inc. Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984). The trial court should have allowed appellant to present evidence regarding the alleged oral partition of the property. Accordingly, the grant of a judgment on the pleadings was premature.

Judgment reversed and case remanded for further proceedings. Jurisdiction relinquished.


author: BROSKY, Judge:

text:
    498 A.2d 963
    COMMONWEALTH of Pennsylvania v. Joseph M. DRAXINGER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed Sept. 27, 1985.

      Alan D. Levy, Pittsburgh, for appellant.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, ROWLEY and FEENEY, JJ.

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

   BROSKY, Judge:

This case is before us on appeal from judgment of sentence imposed following appellant’s conviction of voluntary manslaughter. Appellant argues that the trial court erred in refusing his timely request to charge the jury on involuntary manslaughter, and in precluding appellant from proceeding with a defense of diminished mental capacity. We agree that the trial court erred in refusing to charge the jury on involuntary manslaughter, and we therefore reverse and remand for a new trial.

On February 5, 1982, appellant returned home from work and ate dinner with his wife. After dinner, the two began to consume alcoholic beverages. An argument ensued, lasting nearly two hours, culminating in the shooting death of appellant’s wife. Police were called, and arrived to find appellant outside the building with a bullet wound in his wrist, and appellant’s wife on the living room floor, lying in a pool of blood with a gunshot wound to her face. Appellant was taken to a hospital, and two weeks later was charged with criminal homicide. A jury found him guilty of voluntary manslaughter, and, after the filing and denial of post-trial motions, appellant was sentenced to a term of five to ten years imprisonment.

A person commits the crime of involuntary manslaughter “when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.” 18 Pa. C.S. § 2504. In Commonwealth v. White, 490 Pa. 179, 186, 415 A.2d 399, 402 (1980), and in Commonwealth v. Williams, 490 Pa. 187, 190, 415 A.2d 403, 404 (1980), our Supreme Court held that “in a murder prosecution, an involuntary manslaughter charge shall be given only when requested, and where the offense has been made an issue in the case and the trial evidence would support such a verdict.” In assessing whether or not the charge should have been given, the appellate court will view the evidence in the light most favorable to the defendant. Commonwealth v. Terrell, 482 Pa. 303, 307, 393 A.2d 1117, 1119 (1978).

In the case before us, appellant was the only witness to the shooting. Although he did not take the stand, four separate statements given by appellant to the police were admitted into evidence. At the scene of the shooting, appellant told a police officer that he was sitting at the kitchen table playing with a gun when the gun discharged, the bullet passing through his wrist and striking his wife who was standing in the living room. (The police determined that the bullet did indeed strike appellant’s wrist, but did not exit the wrist).

At the hospital, appellant stated that he had taken a recently purchased gun from a case and was showing it to his wife, when an argument erupted over the merits of the weapon. The wife purportedly took the gun from appellant, and the gun discharged as appellant attempted to retrieve it. When police officers questioned appellant at the hospital the day after the shooting, he stated that his wife began waving the gun around and “fooling” with it. As he attempted to take the gun away from her, it discharged.

Following his arrest two weeks after the incident, appellant stated that he and his wife got into an argument after dinner the night of the incident, whereupon his wife took the gun from a shelf, began waving it around, and knelt on the floor next to the couch on which he was sitting. He heard a click, which he believed was the gun being cocked, whereupon he took the weapon from his wife and attempted to unload it. Before he could unload it, his wife grabbed his arm and pulled him toward her, when the gun discharged.

Although the Commonwealth concedes that the first requirement of White and Williams (that a timely request for the charge be made) has been met, it argues that the trial evidence would not reasonably support a verdict of involuntary manslaughter. In Terrell, supra, the only issue before the Supreme Court was whether the trial court erred in refusing a timely request for an instruction on involuntary manslaughter. The appellant in that case, according to one version of the incident, argued with the deceased, snatched a gun away from him, and shot him. This version is factually similar to the last three versions of the incident given by appellant in the case before us.

In Terrell, the Supreme Court held that the jury could have determined that the appellant’s conduct was criminally reckless in that he consciously disregarded a substantial and unjustifiable risk that death or serious bodily injury might result to the deceased after he snatched the gun; the Supreme Court, therefore, held that the trial court erred in refusing to give the requested instruction on involuntary manslaughter. Similarly, in the case before us, we find that from the evidence presented at trial, the jury could reasonably have determined that appellant acted in a reckless or grossly negligent manner in causing the death of his wife, either by playing with the gun or by grabbing it from his wife. We disagree with the Commonwealth’s argument that no version of the incident evidences reckless or grossly negligent conduct on the part of appellant.

The Commonwealth also argues that appellant failed to make involuntary manslaughter an issue in the course of the trial. We do not interpret White and Williams as requiring that the defendant place the matter in issue. To so interpret the cases would have the effect of shifting the burden of proof to the defendant to establish that the charge of homicide should be downgraded to involuntary manslaughter. In the instant case, the Commonwealth introduced four statements of the appellant which gave conflicting versions of how the shooting of his wife occurred, one or more of which would support a verdict of involuntary manslaughter. That being the case, the offense of involuntary manslaughter was made an issue in the case within the meaning of White. If any version of the evidence in a homicide trial, from whatever source, supports a verdict of involuntary manslaughter, then the offense has been made an issue in the case, and a charge on involuntary manslaughter must be given if requested.

We find that the requirements of White and Williams have been met, and that the trial court therefore erred in refusing to grant the requested charge of involuntary manslaughter. We therefore reverse and remand for a new trial.

ROWLEY, J., notes his dissent.

      . We note that appellant’s counsel did at least raise the issue in his closing argument to the jury, when he argued that appellant’s conduct did not mean that appellant intended to kill his wife although it might have amounted “to a grave recklessness and gross negligence under the circumstances.”

      . Because of our disposition of this case, we do not find it necessary to discuss the issue of the diminished capacity defense.


author: ROWLEY, Judge:

text:
    498 A.2d 966
    MEYERS PLUMBING AND HEATING SUPPLY COMPANY, A Pennsylvania Partnership, Appellant, v. WEST END FEDERAL SAVINGS AND LOAN ASSOCIATION, Albert Vorobyov, individually and trading and doing business as Albert’s Company, Harvey D. Shipkovitz, and Donald Thinnes, Appellees.
    Superior Court of Pennsylvania.
    Argued June 18, 1985.
    Filed Sept. 27, 1985.

      Martha O. Wolf, Pittsburgh, for appellant.
    Alan D. Levy, Pittsburgh, for Shipkovitz and Thinnes, appellees.

      Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an Order granting summary judgment in favor of appellees, Shipkovitz and Thinnes, who are owners of properties in Pittsburgh. Appellant subcontractor supplied materials used in the renovation of appellees’ property. This appeal is concerned solely with the owners’ liability to appellant for unpaid materials as summary judgment was granted only to them. The action is still pending against the other defendants.

The owners entered into a building construction contract with appellee Vorobyov, the general contractor, for renovation of their properties. The contract provided that Vorobyov was to furnish all labor and materials, including plumbing and heating materials. The owners and Vorobyov also entered into a Non-Lien Agreement which stipulated that no claim for work or materials would be made against the owners except as provided in their building construction contract. In addition, Vorobyov signed a Contractor Warranty which provided, inter alia, that he would protect, defend and indemnify the owners from any claims for unpaid work, labor or materials and that final payment would not be made until he delivered to the owners a complete release of all liens arising out of Vorobyov’s performance.

The owners entered into a Construction Loan Agreement with appellee West End Federal Savings and Loan to finance the construction and renovation. Pursuant to the request of Vorobyov and to satisfy any misgivings of appellant, West End Federal sent a letter to appellant informing him that disbursement checks payable jointly to Vorobyov and appellant would be issued in amounts necessary to cover materials purchased and work performed and further, that disbursements would not be made until work was completed and West End Federal had in its possession a satisfactory inspection report.

A dispute arose between the owners and Vorobyov, and the owners instructed West End Federal to stop all construction payments. Appellant filed suit against all parties for plumbing and heating materials ordered by and sold to Vorobyov, and not yet paid for.

The owners filed a Motion for Summary Judgment which the trial court granted. The court found that there was neither a direct contractual relationship between the owners and appellant for purposes of paying for the materials supplied by appellant, nor any provision in the contract between the owners and Vorobyov creating in appellant a third party beneficiary status. In addition, the trial court found that there was no genuine issue of fact as to whether any oral promises had been made to appellant by the owners and that no recovery could be had as a matter of law. We agree.

Appellant presents four issues on appeal: first, whether appellee West End Federal acted as the agent of the owners when it sent the letter outlining the method and conditions for the disbursement of the construction loan proceeds for appellant and Vorobyov; second, whether the fact that the owners sometimes made themselves payees on the construction loan checks, in addition to appellant and Vorobyov, thereby making it necessary to have all three endorsements created a contractual relationship between appellant and the owners making appellant a third party beneficiary; third, whether appellant should be entitled to proceed with his cause of action against the owners on the theory of unjust enrichment; fourth, whether there are any genuine issues of material fact still remaining making it improper for the trial court to have granted the owners’ Motion for Summary Judgment.

Our scope of review on an appeal from the granting of a motion for summary judgment was stated in Toth v. Philadelphia, 213 Pa.Super. 282, 285, 247 A.2d 629, 631 (1968). In that case, this Court said:

It is well established that we can sustain a summary judgment only ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Pa.R.C.P. 1035(b); Michigan Bank v. Steensen, 211 Pa.Super. 405, 236 A.2d 565 (1967). The record must be examined in the light most favorable to the nonmoving party. Schachter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). The court must accept as true all well-pleaded facts in the plaintiff’s pleadings, giving the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Id. Finally, a summary judgment should be granted only when the case is clear and free from doubt. Mallesky v. Stevens, 427 Pa. 352, 235 A.2d 154 (1967).

In light of the foregoing, we address the issues presented by appellant.

Appellant’s first contention is that the owners and West End Federal have established an agency relationship, with the owners as principals and West End Federal as agents. Appellant further maintains that the letter sent him by West End Federal outlining the method and conditions of payment was a contract sent him by the bank in its capacity as the agent of the owners. Appellant thus argues that he had a direct contractual relationship with the owners (principals), with West End Federal acting as the disclosed agent of the principals. He therefore concludes that the owners are liable to him for breach of contract.

Giving appellant the benefit of any reasonable inferences that can be drawn from his pleadings, we will assume there is merit to his claim that an agency relationship existed. Appellant, however, would still not be entitled to recover from appellees for the cost of materials delivered to the job. If the letter is in fact a contract, the terms of the contract are that disbursements would not be made until work was completed and West End Federal had in its possession a satisfactory inspection report. A complete review of the record reveals no evidence that at the time of the dispute between the owners and Vorobyov either of these conditions precedent to payment to appellant had been met. Therefore, by the specific terms of the alleged contract, appellant is not entitled to payment.

Appellant next argues that because the owners sometimes required their own endorsements on the construction loan checks, in addition to those of appellant and Vorobyov, a contractual relationship was created between appellant and the owners making appellant a third party beneficiary either of the contract between the owners and West End Federal or of the contract between the owners and Vorobyov.

Our Supreme Court, in the case of Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983), adopted the Restatement (Second) of Contracts, § 302 (1979) as the guide for determining third party beneficiary status in Pennsylvania. Restatement (Second) of Contracts, § 302, states:

§ 302 Intended and Incidental Beneficiaries
(1) Unless other wise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

The Court in Guy v. Liederbach, 501 Pa. at 60, 459 A.2d at 751 concluded:

There is thus a two part test for determining whether one is an intended third party beneficiary: (1) the recognition of the beneficiary’s right must be “appropriate to effectuate the intention of the parties,” and (2) the performance must “satisfy an obligation of the promisee to pay money to the beneficiary” or “the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.”

Applying these principles to the case at bar, we find that appellant is not a third party beneficiary of either contract. Existence of the no-lien provision in the Contractor Warranty and of the Non-Lien Agreement itself manifest an obvious intent by the owners to protect themselves from the claims of any of Vorobyov’s subcontractors and to make the subcontractors the sole responsibility of Vorobyov. The Contractor Warranty and Non-Lien Agreement also preclude any duty by the owners to pay money directly to any subcontractors. So far as appellant is concerned, any benefit he may receive from these contracts is at best incidental. As an incidental beneficiary, appellant acquires no rights against the promisor or promisee. Restatement (Second) of Contracts, § 315 (1979).

Appellant’s next argument is that he should be entitled to proceed with his cause of action against the owners on the theory of unjust enrichment. Before going any further, we note that there is considerable question as to whether this argument is properly before us. A review of the record indicates that the first time appellant attempted to introduce a cause of action for unjust enrichment was in his answer to the Motion for Summary Judgment. In order to properly raise a cause of action under the Pennsylvania fact pleading system, it is necessary for a plaintiff to allege facts in his complaint sufficient to support that cause of action. Pa.R.C.P. 1020. We entertain serious doubt as to whether the factual allegations made by appellant in his complaint are sufficient to support a cause of action for unjust enrichment.

Giving appellant the benefit of any reasonable inferences to be drawn from his pleadings, however, we find this argument is without merit. The undisputed facts of this case render it impossible for the owners to have been unjustly enriched by the retention of appellant’s materials which allegedly were never paid for.

A necessary element of unjust enrichment is that a benefit must have been conferred for which no compensation was given. In other words, the enrichment to the owners must be unjust. Myers-Macomber Engineers v. M.L.W. Construction Corp., 271 Pa.Super. 484, 491, 414 A.2d 357 (1979). Such is not the case here. The contract between the owners and Vorobyov set $24,000.00 as the price to complete all plumbing and heating work. The record shows that West End Federal disbursed $23,160.60 to Vorobyov singly and Vorobyov and appellant jointly for plumbing and heating materials and labor, all of which was deposited to the account of Vorobyov. This amount is, of course, included in the amount of the mortgage loan owed by the owners to West End Federal. Thus, to require them to pay appellant in this action would obligate them to pay for the same items twice. As a result of the money having already been paid once, it can hardly be said that the owners’ “enrichment” from the plumbing and heating materials is unjust.

Appellant’s final argument is that there are genuine issues of fact still remaining which render the trial court’s grant of summary judgment improper. Appellant asserts that there are factual disputes outstanding as to whether appellant is a third party beneficiary to any of the contracts, whether West End Federal was the agent of the owners, whether the owners have been unjustly enriched, and whether the appellees as witnesses were credible. As to the first three contentions, we have disposed of them in previous discussion. As to the credibility of the appellees, appellant’s claims are general and not specific. Based on our review of the record and the opinion of the trial court, we find that there are no genuine issues of material fact and that, therefore, the trial court’s grant of summary judgment in favor of the owners was proper.

For all the foregoing reasons, we affirm the Order of the trial court.

Order affirmed.


author: OLSZEWSKI, Judge:

text:
    498 A.2d 970
    COMMONWEALTH of Pennsylvania v. David H. MOORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 18, 1985.
    Filed Sept. 27, 1985.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Allegheny County, imposing a term of life imprisonment upon appellant for the second-degree murder of Robert White. The facts are not in dispute: On the evening of October 29, 1983, appellant approached White from behind and grabbed him around the neck with his right arm. N.T. at 103. After struggling with appellant, Mr. White, a 74-year-old man, fell to the ground. He never regained consciousness and died five days later. Appellant waived his right to a jury trial, Record at 4, and was found guilty of murder in the second degree on June 29, 1984. N.T. at 117. Appellant raises only one issue: whether the lower court erred in finding sufficient evidence on the issue of legal causation to support a verdict of guilty of second-degree murder. Appellee argues that our decision in Commonwealth v. Cotton, 338 Pa.Super. 20, 487 A.2d 830 (1984), is controlling authority for dismissal of the present appeal. We agree and affirm the judgment of the lower court.

Appellant argues that Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971), should apply to his case. In Embry, supra, a 70-year-old woman with a long history of coronary artery disease and prior heart attacks became the victim of a purse-snatching and died of a heart attack. The medical expert who performed the autopsy testified to a reasonable degree of medical certainty that the victim’s struggle with the assailant produced the stress which caused the heart attack, but stated that he was not convinced of this beyond a reasonable doubt. The Supreme Court held that “when only one witness is presented by the Commonwealth to establish causation and the witness cannot do so beyond a reasonable doubt, a necessary element of that crime is missing.” Id., 441 Pa. at 186, 272 A.2d at 179. This decision was based on the holding in Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968). Two cases decided by the Supreme Court subsequent to Embry, supra, indicate further development of the law of causation. Commonwealth v. Webb, 449 Pa. 490, 296 A.2d 734 (1972); Commonwealth v. Floyd, 499 Pa. 316, 453 A.2d 326 (1982). In a footnote to our holding in Cotton, supra, we discussed this development and made the following observation:

(in) Commonwealth v. Floyd, 499 Pa. 316, 453 A.2d 326 (1982), our Supreme Court concluded that the opinion of a medical expert expressed in terms of a reasonable degree of medical certainty was adequate evidence in the record of causation for the finder of fact to conclude beyond a reasonable doubt that the cause of death was a crimina act. Importantly, Floyd can be read as having overruled Embry.

Cotton, supra, 338 Pa.Superior Ct. at 25 n. 2, 487 A.2d at 833 n. 2. Obviously, Embry, supra, is overruled by Floyd, supra, to the extent that it required the relevant medical expert to testify as to causation “beyond a reasonable doubt.” It remains authoritative on the principle that the Commonwealth must present more than an opinion of a medical expert to establish causation in a homicide case.

In the present case, the Commonwealth presented evidence in the testimony of Detective Robert Lazzaro of the Allegheny County Police Department. Detective Lazzaro testified that on December 8, 1983, appellant admitted that on the date in question, he had grabbed the victim around the neck in an attempt to rob him. N.T. at 60. Appellant makes no attempt of record to challenge, suppress or prevent the introduction of this statement, and in fact corroborates this statement by his own direct testimony at trial. N.T. at 103. The Commonwealth also presented Dr. Karl E. Williams, an associate pathologist with the Allegheny County Coroner, who performed the autopsy on the victim. Dr. Williams testified that the victim had a history of heart attack and a severe degree of coronary artery disease. N.T. at 92. He also testified that originally, the manner of death was considered “undetermined.” N.T. at 92. This was changed to “homicide” on the basis of appellant’s statement to Detective Lazarro. Id. Dr. Williams was “not able to say one hundred percent that (the trauma to the victim’s neck) is definitely associated with compression of the neck or one hundred percent that it is definitely associated with CPR (cardiopulmonary resuscitation).” N.T. at 87. But he did testify “with a reasonable degree of medical certainty” that the compression of the neck as presented in appellant’s inculpatory statement “is the precipitating event that ... ultimately precipitated (Mr. White’s) death.” N.T. at 77. With the testimony of the medical expert added to that of Detective Lazzaro, the Commonwealth satisfied its burden to present sufficient evidence of the cause of death. By his own failure to challenge his inculpatory statement contained in Detective Lazzaro’s testimony, his choosing to testify to these same facts, and his failure to present any rebuttal evidence as to the opinion of the Commonwealth’s expert witness, appellant adds significantly to the weight of this already sufficient evidence against him.

We note with respect the dissenting opinion in Cotton, supra, of our learned colleague, Judge Vincent A. Cirillo, and offer that even under the analysis set forth in that dissent, appellant’s conviction would have to stand. See Cotton, supra, 338 Pa.Superior Ct. at 30, 487 A.2d 835, Cirillo, J., concurring and dissenting.

Accordingly, judgment of sentence is affirmed.

      . 18 Pa.C.S. Sec. 2502 (Purdon’s 1983).

      . Although Dr. Williams did not specifically state that his opinion was rendered with a reasonable degree of medical certainty, his answer was given to the following question:
      Q: Now, can you testify to a reasonable degree of medical certainty what caused the trauma to the neck area of Robert White?
      N.T. at 77.


text:
    498 A.2d 972
    COMMONWEALTH of Pennsylvania, Appellee, v. Gerald James ROSS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 18, 1985.
    Filed Sept. 27, 1985.

      George N. Daghir, Saint Marys, for appellant.
    James A. Meyer, District Attorney, Saint Marys, for Commonwealth, appellee.

      Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   OLSZEWSKI, Judge:

This appeal follows judgment of sentence for rape and involuntary deviate sexual intercourse. Appellant was tried by a jury and convicted for an attack upon his daughter. Following denial of his post-trial motions, appellant was sentenced to a term of 11 to 22 years imprisonment. He now appeals.

Appellant raises four challenges to his convictions. The lower court dismissed these claims. After reviewing the record and briefs in this case, we are satisfied that appellant’s contentions lack merit. For the reasons below, we too reject appellant’s claims.

Appellant argues first that the trial court improperly limited his cross-examination of the victim. The girl was 12 years old. Appellant alleges that she may have fabricated the story in order to get attention. At trial he sought to substantiate this claim by asking the girl on cross-examination whether any of her friends had been raped. The prosecution objected. At side bar, counsel explained:

MR. DAGHIR: It’s kind of difficult for a defense attorney in this type of case to—if the witness is not telling the truth, then there has to be some reason, and it’s a defense point. You don’t have to have much ability to show this, whether she fantasizes, maybe one of her friends has been raped, which I think is so, maybe one of her friends got a lot of attention, and she wanted attention. I don’t know. Just probing.
THE COURT: Do you have supporting testimony?
MR. DAGHIR: All I have is through my investigation, Your Honor, I have heard rumors that her best friend Theresa, I believe it was Theresa was raped, and that Joyce Simon and Theresa would not press charges.

N.T. at 36-37. Counsel admitted that he could not offer supporting testimony to establish a basis for his question. The court sustained Commonwealth’s objection.

Counsel may on cross-examination explore the potential bias or interest of the alleged victim in a rape prosecution. See Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985); Commonwealth v. Ervin, 262 Pa.Super. 322, 396 A.2d 776 (1978). The scope of cross-examination, however, lies within the Sound discretion of the trial court. Commonwealth v. Lore, 338 Pa.Super. 42, 487 A.2d 841 (1984). Absent palpable error, its decision will not be reversed. Id., 338 Pa.Superior Ct. at 56, 487 A.2d at 849. In the instant case, Commonwealth produced testimony and physical evidence supporting the girl’s claim that she had been raped. The court properly excluded appellant’s question.

Appellant objects next to the admission of statements made by the victim to a neighbor. After the attack, the girl had run to the neighbor’s home. The neighbor, Joyce Simons, testified to what the girl had told her then. The court admitted testimony under the “excited utterance” exception to the hearsay rule. Appellant argues that too much time had elapsed for the statements to qualify as excited utterances. Further, he contends that the statements had been elicited by Simons and so were not spontaneous.

Simons testified that, at approximately 1:30 that morning, she had answered the door and found the girl standing there in blue jeans and a nightgown. In response to Simons’ query, the girl said “My dad just raped me.” Then, again at Simons’ request, the girl explained what her father had done.

To constitute an “excited utterance,” a statement must be:

a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence in both time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.

Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942), quoted in Commonwealth v. Farrior, 312 Pa.Super. 408, 458 A.2d 1356 (1983). “(T)here is no clear-cut rule as to the time sequence; whether the actual delay between the event and the statement is sufficient to negate 'spontaneity’ must be resolved in light of the particular facts of each case.” Commonwealth v. Pronkoskie, 477 Pa. 132, 142, 383 A.2d 858, 863 (1978) (citations omitted). The victim testified that she went to the Simons’ house at 12:30 a.m.; Joyce Simons testified that the girl arrived at 1:30 a.m. Apart from that apparent discrepancy, nothing in the record refutes the girl’s testimony that immediately after the attack she had run to the neighbor’s house. We are satisfied that the spontaneity requirement has been met. “The mere fact that the statements were made in response to questions does not preclude their being spontaneous.” Commonwealth v. Farrior, 312 Pa.Super. at 413, 458 A.2d at 1359, citing Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973). We dismiss appellant’s third claim.

With respect to appellant’s remaining claim, we note that, at trial, the girl testified appellant was her father. Appellant, in his testimony, acknowledged her as his daughter. Appellant now contends that his convictions for indecent assault, statutory rape and two counts of rape must fall because Commonwealth failed to establish that he and his daughter were not husband and wife. It is true that for each of these offenses Commonwealth must establish that the accused engaged in the proscribed conduct “with another person not his spouse.” 18 Pa.C.S. Secs. 3121 and 3122; see 18 Pa.C.S. Sec. 3126 (“with another not his spouse”).' It is equally true that Commonwealth bears the burden of proof beyond a reasonable doubt as to every material element of the crime charged. Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977). Where, however, positive unrebutted testimony on record established that appellant was the girl’s father, it was unnecessary for the Commonwealth to proceed further to adduce testimony that he was not in fact her husband.

As Commonwealth notes, “To require her to testify that she was not married to him would have been embarrassing and unnecessary.” Additional testimony was unnecessary because, under the marriage laws of Pennsylvania, father and daughter cannot legally wed. 23 P.S. Sec. 204(a)(2) (Purdon’s 1985 Supp.). A marriage within the prohibited degrees of consanguinity is void. “(I)ts invalidity may be declared in any collateral proceeding.” 23 P.S. Sec. 204(b) (Purdon’s 1985 Supp.). Commonwealth need not disprove the existence of an invalid marriage.

Briefly stated, where unrebutted testimony establishes a relationship within the prohibited degrees of consanguinity as defined by 23 P.S. Sec. 204(a)(2), it may be validly inferred that the accused and the alleged victim were not husband and wife under the laws of this Commonwealth. We are satisfied, for the reasons above, that the inference passes constitutional muster. For the purposes of a criminal prosecution, “the constitutionality of a standardized inference invoked to establish an essential element of the crimes charged must be judged by the reasonable doubt standard.” Commonwealth v. DiFrancesco, 458 Pa. 188, 196, 329 A.2d 204, 209 (1974). A fact finder can accept or reject the underlying assertion of a relationship with the prohibited degrees of consanguinity. If the fact finder accepts the evidence, it follows beyond a reasonable doubt that the accused and the alleged victim cannot be legally wed. An invalid marriage is no bar to a prosecution for rape, statutory rape or indecent assault.

Finally, appellant argues that the lower court erred in admitting testimony as to his silence at the time of arrest. The challenged testimony consisted of a prosecution witness’ reference during direct examination to “written statement forms.” From this solitary reference to written statement forms, appellant would infer an impermissible comment on his exercise of his constitutional right to remain silent.

A defendant has the right to remain silent in the face of accusations of wrongdoing. Pa. Const. Article I, Sec. 9. While it is improper to comment on the accused’s silence, Commonwealth v. Williams, 296 Pa.Super. 97, 442 A.2d 314 (1982), the testimony here did not constitute impermissible testimony. The testimony centered on the authorities’ collection of arrest forms and pursuit of the defendant after the incident was reported. While the jury could have inferred from the testimony in dispute that the defendant chose to exercise his constitutional right to remain silent, it would have been an extremely imaginative jury to do so on the information given. The lower court did not err in allowing the testimony, and no cautionary instruction was required.

Judgment of sentence affirmed.

      . The jury returned a guilty verdict on 7 counts: rape by forcible compulsion, 18 Pa.C.S. Sec. 3121(1), rape by threat of forcible compulsion, 18 Pa.C.S. Sec. 3121(2), statutory rape of victim under 14 years of age, 18 Pa.C.S. Sec. 3122(1) involuntary deviate sexual intercourse by forcible compulsion, 18 Pa.C.S. Sec. 3123(1), involuntary deviate sexual intercourse by threat of forcible compulsion, 18 Pa.C.S. Sec. 3123(2), involuntary deviate sexual intercourse with person under 16 years of age, 18 Pa.C.S. Sec. 3123(5), and indecent assault, 18 Pa.C.S. Sec. 3126(1).
      The court, finding merger, sentenced appellant only on one count each of rape, 6 to 12 years imprisonment, and involuntary deviate sexual intercourse, 5 to 10 years imprisonment. Section 9718(a) of the Sentencing Act sets a mandatory minimum sentence of 5 years when the offense involves an infant, “the victim is under 16 years of age,” 42 Pa.C.S. Sec. 9718(a) (Purdon’s 1985 Supp.). Appellant’s daughter, at the time of the attack, was 12 years old.

      . We note that in other jurisdictions, the legislatures have shifted the burden of persuasion to the accused to establish a valid marriage to the alleged victim. See, e.g., Alaska Stat. Secs. 11.41.445(a), .81.-900(b)(1) (1978); Me.Rev.Stat.Ann. Tit. 17-A, Secs. 5(3), 253.4 (Supp. 1978); see abo Model Penal Code Sec. 213.1.


author: BECK, Judge:

text:
    498 A.2d 975
    COMMONWEALTH of Pennsylvania v. Robert DAVID, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 4, 1985.
    Filed Sept. 27, 1985.

      Albert J. Flora, Jr., Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before SPAETH, President Judge, and MCEWEN and BECK, JJ.
   BECK, Judge:

Arguing that the money he withdrew from his brother and mother’s bank account was the property solely of his brother and mother, appellant contests in this appeal the sufficiency of the evidence and the propriety of the jury instruction used to convict him of theft of bank property by deception. For the following reasons, we affirm the judgment of sentence.

Appellant was charged with theft by deception, 18 Pa.C.S. § 3922, of money belonging to United Penn Bank. At trial, the Commonwealth established that appellant had forged his brother’s signature on an account withdrawal slip and had used the forged slip to withdraw $900 from his brother and mother’s savings account at United Penn Bank. After the Commonwealth closed its case-in-chief, appellant demurred to the sufficiency of the prosecution’s evidence on the ground that the Commonwealth had not proven that the money taken by appellant was the property of the United Penn Bank. Following the trial court’s denial of appellant’s demurrer, the defense rested. The trial court instructed the jury that the money withdrawn by appellant from his brother and mother’s account belonged to United Penn Bank. The jury convicted appellant of taking the bank’s property by deception. Appellant’s post-verdict motions were denied, and appellant was subsequently sentenced to a prison term of eight to twenty-four months and was ordered to pay court costs and make restitution of the $900 within six months after his release from prison. Thereafter, appellant’s motion to modify sentence was denied, and appellant timely filed this appeal.

Because appellant did not present a defense after the trial court’s adverse ruling on his demurrer, the propriety of the ruling on the demurrer constitutes an issue preserved for appellate review. Commonwealth v. Hammock, 319 Pa.Super. 497, 466 A.2d 653 (1983). A trial court is justified in denying a defendant’s demurrer if the Commonwealth has adduced sufficient evidence of each and every element of an offense to support a determination that the defendant is guilty of the offense beyond a reasonable doubt. Commonwealth v. Turner, 491 Pa. 620, 421 A.2d 1057 (1980).

In the present case, appellant was accused of violating Section 3922 of the Crimes Code wherein

[a] person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression ...;
(2) prevents another from acquiring information which would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously created or reinforced____

Appellant’s demurrer attacked the sufficiency of the Commonwealth’s evidence on only one element of the Section 3922 offense, namely, whether the withdrawn money was, as the criminal information charged, the property of United Penn Bank. Thus, appellant’s demurrer impliedly conceded the sufficiency of the Commonwealth’s evidence on the remaining elements of the alleged offense, i.e., of appellant’s intent to deceive United Penn Bank by knowingly presenting a forged withdrawal slip as authorization to take funds to which appellant was not entitled.

Accordingly, we confine our discussion to whether the withdrawn $900 was, as the Commonwealth averred, the property of United Penn Bank or, as appellant contended, the property of appellant’s brother and mother.

It is beyond cavil in Pennsylvania that [m]oney deposited in a bank ceases to be the money of the depositor and becomes the money of the banking institution in which deposited. It is the business of a bank to receive money on deposit and use it as its own, being accountable as debtor to the depositor for the money so deposited which may be subject to check or draft or payment upon notice or demand as the parties may agree____ [T]he relation of a bank to its depositors ... [is] one of debtor and creditor____

Prudential Trust Company’s Assignment, 223 Pa. 409, 413, 72 A. 798, 799 (1909); In re Erie Forge & Steel Corp., 456 F.2d 801 (3rd Cir.1972); Smith’s Estate, 141 Pa.Super. 571, 15 A.2d 523 (1940); Hober’s Estate, 118 Pa.Super. 209, 180 A. 140 (1935). In other words, money deposited in a bank becomes “a part of the general fund of the bank,” New York County National Bank v. Massey, 192 U.S. 138, 145, 24 S.Ct. 199, 200, 48 L.Ed. 380 (1904), and comprises “the property of the bank in the sense that the bank may use it as its own” subject to the obligation to repay a depositor upon receipt of a mutually agreeable demand for repayment. In re Erie Forge & Steel Corp., 456 F.2d at 804.

Therefore, we conclude that the $900 taken by appellant was the property of United Penn Bank and that the trial court properly denied appellant’s demurrer and appropriately instructed the jury to regard the withdrawn money as bank property.

The judgment of sentence is affirmed.


author: POPOVICH, Judge: DEL SOLE, Judge, WIEAND, Judge,

text:
    498 A.2d 977
    Richard A. MAGINLEY, Sr. and Helen E. Maginley, his wife v. ROBERT J. ELLIOTT, INC. and Frederick Poultney. Appeal of ROADWAY EXPRESS.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Filed Sept. 27, 1985.

      David W. Knauer, Stroudsburg, for appellant.
    Ronald J. Mishkin, Stroudsburg, for Maginley, appellees.
    Paul A. Barrett, Scranton, for Elliott, Inc., appellees.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Monroe County denying Roadway Express’ petition to intervene. We remand.

The facts reveal that Roadway Express’ employee, Richard A. Maginley, sustained injuries when the vehicle he was operating collided with a vehicle driven by Frederick Poultney. As a result of the accident, Maginley received $20,000 in workmen’s compensation.

Despite the workmen’s compensation payment, on July 15, 1982, almost fifteen months after the accident, Maginley and his wife brought suit against Poultney and his employer, Robert J. Elliott, Inc., to recover for the damages he incurred. On May 23, 1983, Roadway Express petitioned to intervene in this third-party litigation. However, the trial court denied the requested intervention on the grounds that: 1) Roadway Express had no right of subrogation; 2) the petition was filed two weeks prior to the third-party cause of action being listed for trial; and 3) intervention would jeopardize a resolution of the third-party suit. This appeal followed.

Initially, we treat the appealability of the order in question, for “it is still the affirmative duty of our Court to consider the issue of subject matter jurisdiction.” Marcus v. Diulus, 242 Pa.Super. 151, 157, 363 A.2d 1205, 1208 (1976) (Citation omitted).

Albeit, in general, an appeal from an order refusing a petition to intervene is considered interlocutory, our courts have recognized that in those instances where the practical consequence of the order is to deny the petitioner relief to which he is entitled and which he can secure in no other way, the order has been held to be appealable. Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 446 A.2d 614 (1982).

At bar, this translates into an observation that since the Workmen’s Compensation Act (77 P.S. § 671) entitles an employer to “be subrogated to the right of the employe” to the extent of compensation it paid as a result of an injury caused by a third-party, the employer’s failure to act timely in bringing a separate cause of action against the third-party will result in its inability to recoup monies paid to his employee for a compensable injury sustained at the hands of the third-party. In other words, unless Roadway Express’ petition to intervene is granted, any separate suit against the third-party tortfeasor would be barred by the two-year statute of limitations covering personal injuries. 42 Pa.C.S.A. § 5524(2).

Therefore, given the facts here, the practical effect of the order denying intervention is to preclude the employer from securing relief to which it is entitled and which it cannot otherwise obtain. Accordingly, we hold the order to be appealable.

However, on the present record, we are unable to determine whether the trial court abused its discretion in denying Roadway Express’ petition to intervene under the auspices of Pa.R.Civ.P. 2329. Thus, we need to remand. See Johnson v. Keystone Ins. Co., 299 Pa.Super. 187, 445 A.2d 517 (1982).

Although the trial court’s denial of Roadway Express’ petition to intervene is subject to being interpreted as “bottomed” on case law that subsequently was overruled (see discussion infra), we still have the power to affirm the denial on grounds other than those relied upon by the trial court. See McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 455 n. 7, 450 A.2d 991, 1000 n. 7 (1982). For instance, Roadway Express claims to have “justifiably believed” that its subrogation interest would be honored by the third-party tortfeasor. Yet, we are presented with no insight as to what such a “belief” was “bottomed upon”. Even though a hearing on the petition to intervene was held, the record of what happened there, if transcribed, was not forwarded to this Court. Therefore, we believe we should remand for the securement of such testimony to determine what, if anything, occurred at that proceeding. And, if a review of the record reveals that Roadway Express proffered no justification for its delay in acting, it would be held to have waived such a claim. See Zubris v. Pennsylvania Assigned Claims Plan, 321 Pa.Super. 83, 467 A.2d 1139 (1983) (Concurring Opinion by POPOVICH, J.).

Further, we hasten to mention that nowhere is it written that “a valid right of subrogation” cannot be refused when presented in the form of an “intervention petition”, regardless of the intervenor’s unexplained delay in not acting sooner. Ergo, Roadway Express’ unsubstantiated assertion of how it was led to believe its subrogation claim would be honored runs head-on into the undue delay criterion warranting the denial of its intervention petition. The trial court stated as much in its opinion to us, which, interestly enough upon examination, renders questionable the view espoused by some that the trial court’s ruling was predicated upon subsequently overruled case law; to-wit:

It is true that Vespaziani v. Insana,[ ] [293 Pa.Super. 117, 437 A.2d 1234 (1981)], is presently on appeal. That does not affect our obligation to defer completely to the pronouncement of the Superior Court. Furthermore, the status of that appeal in no way affects the validity of Brunelli v. Farelly Bros., [266 Pa.Super. 23, 402 A.2d 1058 (1979)].
Even if these cases’ reasonings were to be rejected, Petitioner still would not be entitled to intervene in the case at bar, due to its inexcusable delay in filing its petition to intervene. It did not file the petition until May 24, 1983, only two weeks before trial.

(Trial Court Opinion at 9-10) (Emphasis added)

The point we wish to make is that a right to seek intervention is not the equivalent of a right to intervene. The former is provided for in the Rules of Civil Procedure, while the latter is regulated by a review of the facts under an abuse of discretion standard and is not to be granted pro forma merely because of one’s filing of a petition to intervene. Toward that end, we would direct that the hearing conducted to assess Roadway Express’ petition to intervene be transcribed and forwarded to this Court so that we can make a jurisprudentially sound decision regarding the trial court’s actions. See Pa.R.App.P. 1926 (“ * * * If anything material to either party is omitted from the record ... the appellate court of its own initiative [ ] may direct that the omission ... be corrected, and if necessary that a supplemental record be certified and transmitted.”); see also Commonwealth v. Rivera, 339 Pa.Super. 242, 488 A.2d 642 (1985) (en banc).

We hereby remand for completion of the record. Jurisdiction is retained.

WIEAND, J., files a concurring and dissenting opinion.

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge,

concurring:

While I concur in the result reached by my colleague, Judge Popovich, in remanding this matter to the trial court for the completion of the record, I am not prepared to join that portion of the analysis expressed in both the majority and dissenting opinions which seem to limit the employer’s right of recovery to a claim against a third-party tortfeasor.

First, had the employee recovered sums in a settlement which represented subrogatable compensation payments, the employer would not be barred from filing a claim against the employee to recoup its subrogation.

In addition, while the employer in this case has made averments that it “justifiably believed” that its subrogation interests would be honored by the third party, we have no record to substantiate the averment. It could very well be that the third party, through its actions, may have waived the defense of statute of limitations. Therefore, it is not clear to me on this record whether the denial of the employer’s petition to intervene is in fact a final order which would bar ultimate recovery or whether the employer may be free to attempt to recover its subrogated interests either from the employee or from the third party.

In my view, the problems presented in this case have been occasioned by the amendments to the Worker’s Compensation Act which still allow an employer a subrogated right against third party recovery but prevents the employer from being joined in the litigation in order to have the employer’s percentage of negligence determined.

WIEAND, Judge,

concurring and dissenting:

The issue in this appeal is whether an employer may intervene in an employee’s third party action to preserve a subrogation claim for workmen’s compensation paid to the employee. The trial court refused to permit intervention (1) because it determined that the employer’s right of subrogation had been abrogated by the Pennsylvania No-fault Motor Vehicle Insurance Act , (2) because intervention would have jeopardized settlement of the action between the employee and third party wrongdoer and (3) because the employer waited too long before moving to intervene. I agree with the majority that the first two reasons given by the trial court were erroneous. In my judgment the third reason was also inadequate. Therefore, I would reverse and remand to allow such intervention.

Richard A. Maginley, an employee of Roadway Express, Inc., was injured when the truck which he was driving came into collision with a vehicle being operated by Frederick Poultney on Interstate Route 80 in Monroe County on March 26, 1981. Maginley was paid workmen’s compensation in the amount of $20,000.00 (Trial court opinion at 3). On July 15, 1982, Maginley and his wife brought a third party action against Poultney and his employer, Robert J. Elliott, Inc., to recover damages for the injuries which Maginley had sustained. On May 23, 1983, Roadway Express petitioned to intervene in the third party action. The trial court denied the petition for the reasons already recited. This appeal followed. The trial court also denied a request for a stay. Therefore, the third party action was settled and discontinued without payment to Roadway Express for workmen’s compensation benefits previously paid to its employee.

As a general rule, an appeal will not lie from an order denying intervention, because such an order is not final. However, in some cases a denial of a petition to intervene will be a practical denial of relief to which the intervenor is entitled and which he can obtain in no other way. In such cases, the order denying intervention is a final order as to the petitioner. Such an order is appealable. Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa. Super. 279, 281, 446 A.2d 614, 615 (1982), quoting Frey’s Estate, 237 Pa. 269, 271, 85 A. 147, 148 (1912). See also: M. London, Inc. v. Fedders Corp., 306 Pa.Super. 103, 106, 452 A.2d 236, 237 (1982); Inryco Inc. v. Helmark Steel Inc., 305 Pa.Super. 239, 243, 451 A.2d 511, 513 (1982). In order to determine the appealability of an order denying intervention, therefore, we must examine the ramifications of the order to determine whether it constitutes “a practical denial of relief to which the petitioner for intervention is entitled.” Boise Cascade Corp. v. East Stroudsburg Savings Association, supra, 300 Pa.Super. at 282, 446 A.2d at 615.

Section 319 of the Workmen’s Compensation Act provides that “the employer shall be subrogated to the right of the employee” to the extent of compensation paid where a compensable injury has been caused by the act or omission of a third party. In Smith v. Yellow Cab Co., 288 Pa. 85, 135 A. 858 (1927), the Supreme Court said that the statute gave the employer a right to maintain a separate action against the third party wrongdoer and that a third party settlement with the employee would not bar a claim by the employer against a third party wrongdoer who had settled with knowledge of the employer’s subrogation rights. With respect to the employer’s possible intervention in an employee’s third party action, the Court said:

“While the course suggested [intervention] would have been a proper one, and might well have been pursued, we find nothing in the statute which compels it, and hence hold that the explicit written notice to defendant, which admittedly was received, was sufficient ... to preserve the employer’s right.”

Id., 288 Pa. at 90-91, 135 A. at 860. See also: Broderick v. Great Lakes Casualty Co., 152 Pa.Super. 449, 450, 33 A.2d 653, 653 (1943).

When a subrogated employer seeks to recover from the third party tortfeasor, however, his rights can rise no higher than those of his employee. See: Brinkley v. Pettier, 341 Pa.Super. 432, 440, 491 A.2d 894, 898 (1985). Therefore, the employer’s claim is subject to the same defenses available against the employee, and the pertinent statute of limitations is that which is applicable to the employee’s cause of action against the third party tortfeasor. Reliance Insurance Co. v. Richmond Machine Co., 309 Pa.Super. 430, 438, 455 A.2d 686, 690 (1983). Thus, if an employer commences a separate action to recover his subrogated claim after the time allowed for an action against the third party tortfeasor, the employer’s claim will be barred just as his employee’s claim would have been barred had he waited too long to file suit. See: Moltz v. Sherwood Brothers, Inc., 116 Pa.Super. 231, 235, 176 A. 842, 844 (1935).

The accident in the instant case occurred on March 26, 1981. The petition for intervention was filed on May 23, 1983, after the employee and the third party had refused to recognize the employer’s claim. This was more than two years after the accident. The employer, in the meantime, had not filed a separate action against the third party because it believed that its subrogation claim would be honored. The likelihood is, therefore, that if intervention in the instant action is disallowed, a separate action .by the employer will be barred by the two year statute of limitations applicable to personal injury claims. Under these circumstances, it would appear that the order denying intervention will have the practical effect of denying relief to which the employer is entitled and which it cannot obtain in any other way. The order, therefore, is appealable.

Rule 2327 of the Pennsylvania Rules of Civil Procedure provides, in part, as follows:

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if
(3) such person could have joined as an original party in the action or could have been joined therein; or
(4) the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.

(Emphasis added). A subrogee is generally entitled to intervene under the provisions of this rule. 8 Goodrich-Am-ram § 2327:6 (1977). See: Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 355, 180 A.2d 414, 421 (1962); Philadelphia v. Philadelphia Rapid Transit Co., 337 Pa. 1, 10 A.2d 434 (1940). An employer may protect his subrogation interest either by bringing suit in the name of his employee against a third party tortfeasor, or he may join as co-plaintiff in an action with the employee or intervene in an action brought by the employee. Scalise v. F.M. Venzie, Inc., 301 Pa. 315, 320, 152 A. 90, 92 (1930); 6 Goodrich-Am-ram § 2002(a):12.1 (1977). Under existing law, therefore, it seems clear that appellant was entitled to intervene.

In denying appellant’s petition to intervene, the trial court relied upon a decision by this Court in Vespaziani v. Insana, 293 Pa.Super. 117, 437 A.2d 1234 (1981) (reargument denied January 4, 1982), which held that a workmen’s compensation carrier could not intervene in an employee’s third party action because the No-fault Motor Vehicle Insurance Act had abolished the right of the workmen’s compensation carrier to share in the third party recovery. Subsequent to the trial court’s decision in the instant case, however, the Supreme Court reversed the decision of the Superior Court. In Vespaziani v. Insana, 501 Pa. 612, 462 A.2d 669 (1983), the Supreme Court held that “[bjeyond the workmen’s compensation carrier’s contribution toward the first $15,000.00 of compensation, the subrogation claim for recovery of benefits payable has not been affected by the No-Fault Act.” Id., 501 Pa. at 620, 462 A.2d at 673. In the instant case, therefore, the trial court’s decision to deny intervention on grounds that appellant’s right of subrogation had been abolished by the No-fault Motor Vehicle Insurance Act was erroneous.

Having concluded, erroneously, that the employer’s right of subrogation had been abolished, the court determined by a natural progression of reasoning that to allow intervention would impair settlement negotiations then underway between the employee and the third party tortfeasors. To allow intervention, the court said, would have “ruined” all chances of settlement. The negotiations, therefore, were allowed to proceed, with the trial court’s blessing, upon the erroneous premise that Roadway would not be allowed to participate in the recovery effected by its employee. This, as we have seen, was error.

Pa.R.C.P. 2329(3) grants discretion to a trial court to refuse intervention, if “the petitioner has unduly delayed in making application for intervention or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties.” It has been said that “[wjhether an application for intervention is timely is a question ‘singularly within the periphery of the trial judge’s discretionary domain.’ ” Jackson v. Hendrick, 498 Pa. 270, 275, 446 A.2d 226, 228 (1982), quoting Templeton Appeal, 399 Pa. 10, 17, 159 A.2d 725, 730 (1960). See also: Lewis v. Pine Township, 27 Pa.Cmwlth. 574, 579, 367 A.2d 742, 745 (1976). As a general rule, the trial court’s order will not be disturbed in the absence of a manifest abuse of discretion. M. London, Inc. v. Fedders Corp., supra, 306 Pa.Super. at 106, 452 A.2d at 237; Taub v. Merriam, 251 Pa.Super. 572, 578, 380 A.2d 1245, 1248 (1977). However, a court will be permitted to find undue delay sufficient to bar intervention only if the delay is unexplained and would prejudice the other party so that it would be an injustice to permit intervention at the time application therefor is made. Esso Standard Oil Co. v. Taylor, 399 Pa. 324, 331-332, 159 A.2d 692, 696 (1960); 8 Goodrich-Amram 2d § 2329:4 (1977).

In the instant case, the petition to intervene was filed approximately two weeks before trial and over ten months after the suit had been commenced by Maginley. Appellant explains that this delay was caused by its justifiable belief that the defendant, Robert J. Elliott, Inc., intended to honor appellant’s subrogation claim. It was not until May, 1983, after the statute of limitations had expired, that the defendant advised appellant that it had decided to refuse to honor appellant’s lien and subrogation claim. Within less than a week thereafter appellant petitioned to intervene in the employee’s action.

Before a petition to intervene may be allowed or denied, a hearing must be held. Pa.R.C.P. 2329. At that hearing, a petitioner may establish factually his right to intervene under Pa.R.C.P. 2327. Hayes v. School District of Pittsburgh, 33 Pa.Cmwlth. 71, 74-75, 381 A.2d 193, 194-195 (1977). It is only after hearing that the trial court can properly exercise its discretion to disallow the petition. Id., 33 Pa.Cmwlth. at 75, 381 A.2d at 195. Although a hearing was in fact held in the instant case, no record thereof was made. Therefore, we cannot review the evidence presented.

Nevertheless, it seems clear from the record before us that appellant should have been permitted to intervene and that it was an abuse of discretion to hold otherwise. Clearly, the requested intervention in this case would not have delayed trial or prejudiced the rights of the parties in any way. Intervention would not have delayed trial because appellant did not wish to participate independently in the trial. Appellant represented to the court, as the parties agree, that it would rely upon the evidence which the employee was prepared to present and would not participate actively in the trial. Its only reason for intervening was to protect the subrogation interest which the employee and the third party had refused to honor. Intervention would not have altered the presentation of evidence, the length of the trial, or the defenses which the third party intended to present. Intervention would have placed the parties in precisely the same position in which they would have been had appellant intervened earlier. There was absolutely no basis, therefore, on which to find that the parties would have been prejudiced by appellant’s delay in seeking to intervene.

For these reasons, I am forced to conclude that the trial court’s refusal to allow intervention in this case was an abuse of discretion. At bottom was the trial court’s erroneous belief that the subrogation rights of the employer had been abolished by the Pennsylvania No-fault Motor Vehicle Insurance Act. The court concluded, therefore, that there was no good reason for allowing the employer to intervene. This was particularly so, reasoned the court, where it would impair and probably prevent amicable settlement of the employee’s third party action which was then awaiting trial. When the trial court refused appellant’s intervention petition, however, it effectively prevented appellant from enforcing a claim which we now know was valid. See: Vespaziani v. Insana, supra. The trial court’s order required appellant to assert its right of subrogation in a separate action, where it will be susceptible to a defense of the statute of limitations. Although Pa.R.C.P. 2329 has vested discretion in the trial court to refuse intervention which would unduly delay or prejudice the trial of an action, the rule was not intended to permit a court to refuse intervention in order to defeat a valid subrogation interest. I would remand, therefore, with instructions to allow appellant to intervene in order to pursue its right of subrogation.

      . Reversed at 501 Pa. 612, 462 A.2d 669 (1983).

      . Act of July 19, 1974, P.L. 489, as amended, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, § 8(a) (effective October 1, 1984).

      . Act of June 2, 1915, P.L. 736, § 319, as amended, 77 P.S. § 671.

      . We are advised that after the parties refused to recognize the employer’s subrogation claim, a separate action was commenced by the employer against the third party. In that action an answer was filed raising the bar of the two year statute of limitations.

      . The ultimate validity of appellant’s claim, of course, depends upon the ability of appellant or its employee to prove that the third party was legally responsible for Maginley’s injuries. See: Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 108, 465 A.2d 609, 613 (1983).