author: CAVANAUGH, Judge:

text:
    448 A.2d 1077
    COMMONWEALTH of Pennsylvania, Appellant, v. ONE ELECTRONIC POKER GAME MACHINE and One Electronic Blackjack Game Machine. COMMONWEALTH of Pennsylvania v. TWO ELECTRONIC POKER GAME MACHINES and One Electronic Blackjack Machine. Appeal of KING AMUSEMENT COMPANY, INC.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1981.
    Filed July 9, 1982.
    Petition for Allowance of Appeal Granted Sept. 30 and Oct. 12, 1982.

      Richard R. Tomsho, Assistant District Attorney, Allentown, for appellant (at No. 1209) and for appellee (at No. 2134).
    William M. Thomas, Allentown, for appellant (at No. 2134) and for One Electronic, appellee (at No. 1209).
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   CAVANAUGH, Judge:

This case involves two appeals at Nos. 1209 Philadelphia, 1980 and 2134 Philadelphia, 1980, which were consolidated for argument before a panel of this court. We shall dispose of both appeals in this opinion.

I

Appeal at No. 1209 Philadelphia, 1980

In January, 1980, the police seized an electronic poker game and an electronic blackjack game located at the Liberty Fire Company Social Club in Allentown, Lehigh County, pursuant to a search warrant. The Commonwealth filed a petition to have the machines forfeited to the state under the authority of The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S.A. § 5513(b). There was no evidence that the machines seized at the Liberty Fire Company Social Club were being used for gambling purposes. The court below found that the machines seized were not gaming devices per se and could be- used for amusement purposes, and therefore dismissed the petition. The Commonwealth has appealed to this court from the order of dismissal.

The machines involved in this appeal simulate the games of poker and blackjack. To play a game the player must either insert from one to eight quarters or have accumulated sufficient “skill points” from previous games. Consideration is required to play the games either in the form of coins or skill points. There are no rewards to the player who wins other than the award of skill points which can be used towards playing future games.

(b) Confiscation of gambling devices.—Any gambling device possessed or used in violation of the provisions of subsection (a) of this section shall be seized and forfeited to the Commonwealth. All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of intoxicating liquor shall apply to seizures and forfeitures under the provisions of this section.

The law is very restrictive as to what type of machine may be forefeited to the Commonwealth under § 5513(b) of The Crimes Code. As pointed out in Nu-Ken Novelty, Inc. v. Heller, 220 Pa.Super. 431, 433, 288 A.2d 919, 920 (1972) unless it is shown that the machines are actually used for gambling then:

the machines cannot be forfeited unless they are so intrinsically connected with gambling as to constitute gaming devices per se. Friedberg Appeal, 208 Pa.Super. 312, 222 A.2d 509 (1966). A machine is a gaming device per se if it can be used for no purpose other than gambling. Friedberg, supra; Commonwealth v. Joyce, 78 York 157 (1965). The mere fact that a machine involves a substantial element of chance is insufficient to condemn it as a gaming device. Wigton’s Return, 151 Pa.Super. 337, 30 A.2d 352 (1943).

The sole question before us is whether the electronic poker and blackjack card game machines involved in this case are illegal gaming devices per se. The court below found that they were not, and we agree. The case before us is controlled by the recent Superior Court decision in Commonwealth v. One Electro-Sport Draw Poker Machine, 297 Pa.Super. 54, 443 A.2d 295 (1981) which determined that an electronic poker machine similar to the one used in this case is not a gaming device per se. This court relied on the decision of Nu-Ken Novelty, Inc. v. Heller, supra.

It is clear to us that the gaming devices in this case could be used for entertainment and amusement purposes and for other purposes besides gambling. Certainly, some skill is required in the playing of blackjack and poker. This court pointed out in Commonwealth of Pennsylvania v. One Electro-Sport Draw Poker Machine, supra, 297 Pa.Superior 59, 443 A.2d at 298:

Draw poker involves far more than a mere glance at the faces of cards, whether they appear on pieces of pasteboard, or on a viewing screen. Skill is exercised in choosing which cards to hold, in deciding which to discard, in considering whether to stand pat and in weighing the probabilities of drawing the desired card. It is disingenuous to compare the Draw Poker Machine to a game in which the player merely inserts a coin and waits for bells, bars, cherries, oranges etc., to match up.
The court below aptly pointed out at page 8 of its opinion: Unlike a slot machine which does operate by pure chance, a knowledge of mathematical probabilities would be an asset in playing either poker or blackjack. To that extent, and for those so inclined, a certain intellectual stimulation can be attained in playing these machines.

We recognize that the Commonwealth Court has reached a conclusion which is diametrically opposed to our own in Commonwealth v. Nine Mills Mechanical Slot Machines, 62 Pa.Commw. 397, 437 A.2d 67 (1981). In that case, The Commonwealth Court found that an electronic draw poker machine is a gambling device per se. The Commonwealth court’s opinion is not persuasive in our case for two reasons. First, the Commonwealth Court ignored the requirement that a machine is a gaming device per se only if it can be used for no purpose other than gambling as set forth in Nu-Ken Novelty Company, Inc. v. Heller, supra. Further, the Commonwealth Court found that the machines forfeited were actually used for gambling purposes and the court noted that even if the draw poker machine was not a gambling device per se it would still be subject to confiscation and forfeiture under § 5513(b) of The Crimes Code. In the case before us there was no evidence that the machines were being used for gambling purposes and in the absence of being gaming devices per se they were not subject to forfeiture.

II

Appeal at No. 2134 Philadelphia, 1980

This appeal involves the seizure (and subsequent forfeiture) of two electronic poker game machines and one electronic blackjack machine at the Franklin Social Club in January, 1980. In addition to the machines seized by the police at the Franklin Club, the officers also seized several slips of paper located in the cash box at the club’s bar. The court below found that the machines were not gambling devices per se but that they were used for the illegal purpose of gambling. Since the intervenor, The King Amusement Machine Company, Inc., appellant in this appeal, did not produce evidence that the machines were being lawfully used the court below directed forfeiture of the machines.

King Amusement Machine Company, Inc. argues that the Commonwealth did not produce sufficient evidence to demonstrate that the machines that were forfeited were used for gambling purposes. Forfeiture proceedings are in rem and the Commonwealth is not held to the same degree of proof required in a criminal trial. Forfeiture is proper if from the testimony the hearing judge could reasonably infer that the seized property was an integral part of gambling activities. Pannulla v. Rosenberg, 171 Pa.Super. 233, 90 A.2d 267 (1952). The court below had no difficulty in concluding that the six slips seized were tallies of the day’s payouts on the various machines. The court noted that the first slip was a list of the amounts of money to be paid for a given number of “skill points” accumulated on the machines. In the court’s opinion there was conclusive evidence that the machines at the Franklin Club were actually used for gambling and we agree.

The appellant has not met its burden of establishing that the machines in question were not used for unlawful purposes. In fact it admits in its brief that it did not “present affirmative evidence of innocence.” It argues that it is clothed with a presumption of innocence and need not introduce evidence to establish that it was unaware that the machines were being used for unlawful purposes. This argument ignores the statute pertaining to forfeiture which places the burden on the property owner of establishing the innocent use of the machines. The grant of a petition for forfeiture is a matter within the discretion of the court of common pleas and we will reverse only if there has been an abuse of discretion. Commonwealth v. One 1972 Ford Pick-up Truck, 49 Pa.Cmwlth. 600, 411 A.2d 892 (1980). See also Commonwealth v. One 1958 Oldsmobile Sedan, 194 Super. 352, 168 A.2d 776 (1961). In the circumstances of this case we find no abuse of discretion.

Orders affirmed.

      . The Crimes Code, 18 Pa.C.S.A. § 5513(b) provides:

      . The Crimes Code, 18 Pa.C.S.A. § 5513(b) provides that forfeiture proceedings in gambling cases shall be the same as in those involving liquor. The Liquor Code, Act of April 12, 1951, P.L. 90 as amended, 47 P.S. § 6-602(e) deals with forfeiture proceedings and provides:
      (e) At the time of said hearing, if the Commonwealth shall produce evidence that the property in question was unlawfully possessed or used, the burden shall be upon the claimant to show (1) that he is the owner of said property, (2) that he lawfully acquired the same, and (3) that it was not unlawfully used or possessed.


source: Caselaw Access Project

author: CERCONE, President Judge: HESTER, Judge,

license: Public Domain

text:
    448 A.2d 1080
    Selwyn CHESLER, Administrator of the Estate of Barry C. Chesler, Deceased, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1981.
    Filed July 23, 1982.
    Petition for Allowance of Appeal Granted Nov. 5, 1982.

      Jeffrey M. Stopford, Philadelphia, for appellant.
    David M. McCormick, Philadelphia, for appellee.
    Before CERCONE, President Judge, and HESTER, CAVANAUGH, WICKERSHAM, BECK, MONTEMURO and POPOVICH, JJ.
   CERCONE, President Judge:

This appeal presents us with two questions under the Pennsylvania No-fault Motor Vehicle Insurance Act.

The first question presented is whether a deceased’s estate, here represented by the deceased’s mother as administrator of the estate, can collect “post mortem work loss benefits” under the No-fault Act. The lower court ruled that it could not. We need not dwell on the matter since our holding in Freeze v. Donegal Mut. Ins. Co., 301 Pa.Superior Ct. 344, 447 A.2d 999 (1982) is controlling here. As mandated by our decision in that case, we reverse the order of the lower court as to work loss benefits.

We cannot so easily dispose of the second question presented here. That question is whether appellant can collect survivor’s loss benefits under the No-fault Act.

The lower court set out the facts of the case as follows:

On January 9,1979, Dr. Barry Chesler (“Decedent”) was involved in an automobile accident that resulted in his death. At the time of his death he was a duly licensed medical doctor, serving his residency. He was single, without any children, and was survived by his mother who resides in South Africa.
Although the Decedent’s mother was not financially dependent on him at the time of his death, she maintained that Decedent would have contributed some financial support toward her goal to immigrate to the United States. Therefore, she maintains that under the No-Fault Act, 40 P.S. 1009.101, et seq., she is entitled to the $15,000 policy limit covering work loss, and the $5,000 policy limit covering survivor’s loss.

Although the parties had stipulated that appellant would have received in excess of $5,000 from her son had he survived the accident, the court denied both the work loss benefits and survivor’s loss benefits because appellant was not dependent upon him for support at the time of his death. In reaching its decision the court relied on the case of Midboe v. State Farm Mut. Auto. Ins. Co., 8 D. & C.3d 83 (1978), which was affirmed per curiam and without opinion by a panel of this Court at 261 Pa.Superior Ct. 447, 395 A.2d 991 (1978). The lower court’s opinion in Midboe turned on Section 103 of the Act which defines “survivor” thus:

“Survivor” means:
(a) spouse; or
(b) child, parent, brother, sister or relative dependent upon the deceased for support.

The lower court in Midboe reasoned that “dependent” was intended to modify not only “relative” but “child, parent, brother, sister” as well. See Midboe v. State Farm Mut. Auto. Ins. Co., 8 D. & C.3d at 88-89. And see 40 P.S. § 1009.103 (“survivor”). In the instant case the court accepted the reasoning expressed in Midboe as persuasive, and accordingly denied appellant the survivor’s loss benefits as well as the post-mortem work loss benefits she sought.

Subsequent to the lower court’s decision in this case the Supreme Court considered Midboe. That court affirmed by an evenly divided court. See Midboe v. State Farm Mut. Auto. Ins. Co., 495 Pa. 348, 433 A.2d 1342 (1981). (Three justices in support of affirmance and three in support of reversal). However, we are not in any way bound by stare decisis to affirm the instant order based on the Supreme Court’s disposition of Midboe, because the Supreme Court’s split decision there carries no weight as precedent. See Commonwealth v. Covil, 474 Pa. 375, 378 A.2d 841 (1977). Nor are we bound by this Court’s panel decision in Midboe. An appellate court may affirm a lower court’s decision on any basis and is not restricted to a reconsideration of the reasoning or law relied upon by the lower court. Where a decision is rendered by the appellate court without an opinion it is impossible to tell on what that decision was based. Therefore, any reliance on our earlier decision in Midboe, rendered as it was without an opinion, is tenuous at best.

We refer to the rules of statutory construction in order to determine whether the lower court erred in refusing appellant survivor’s loss benefits. In construing the No-fault Act, as in the construction of any statute, we are guided by the dictates of the Statutory Construction Act. Prime among the rules of statutory construction is the rule that “[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). When a statute is not ambiguous and the wording clear then the letter of statute may not be circumvented on the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). Pittsburgh v. Royston Service, Inc., 37 Pa.Cmwlth. 394, 390 A.2d 896 (1978). It follows that where a statute is ambiguous or otherwise unclear then construction of the statute with an eye to the Legislature’s intent is necessary. We are further required by the rules of construction to give effect to all provisions of a statute, 1 Pa.C.S. § 1921(a), except where to do so would yield an absurd or unconstitutional result, 1 Pa.C.S. §§ 1922(1), (2) & (3). We must also keep in mind that the General Assembly is presumed to favor public interests over private ones. 1 Pa.C.S. § 1922(5). Furthermore, insurance statutes are to be construed liberally in order to effect their purpose and promote justice. See Sheppard v. Old Republic Life Ins. Co., 21 Pa.Cmwlth. 360, 346 A.2d 383 (1975); 1 Pa.C.S. § 1928(c). The General Assembly has aided us greatly in our task by including in Section 102 of the No-fault Act a clear statement of its reasoning and purpose in enacting the statute. 40 P.S. § 1009.102. Pertinent portions of that section read:

(a) Findings.—The General Assembly hereby finds and declares that:
(3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce;
(4) to avoid any undue burden on commerce; during the intrastate transportation of individuals, it is necessary and proper to have a Statewide low-cost, comprehensive, and fair system of compensating and restoring motor vehicle accident victims and the survivors of deceased victims;
(b) Purposes.—Therefore, it is hereby declared to be the policy of the General Assembly to establish ... a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.

Because the intent of the General Assembly is clear we need not resort to the other aids to determine its intent in adopting the No-fault Act. Cf. 1 Pa.C.S. § 1921(c).

It is clear that the phrase “dependent upon the deceased for support” in the definition of “survivor” modifies the word immediately preceeding it—“relative.” The question before us however, is whether “dependent” was intended by the General Assembly to modify the words “child, parent, brother, sister” as well.

We look first to the so-called “last antecedent rule.” See Buntz v. General American Life Ins. Co., 136 Pa.Superior Ct. 284, 7 A.2d 93 (1939). And see Midboe v. State Farm Mut. Auto Ins. Co., 495 Pa. at 359, 360, 433 A.2d at 1348, 1349 (Opinion in support of reversal per Nix, J.) (“Dissenting Opinion” per Larson, J., joined by Kauffman, J.). Applying this rule would require us to read “dependent” as modifying “relative” alone, unless such a reading would contradict the Act read as a whole. We believe that reading “dependent” as modifying only “relative” would be fully consonant with the letter and spirit of the No-fault Act. We can find no provision with which such a reading would conflict. To the contrary, however, the reading of “survivor” accepted by the lower court and advocated here by the appellee insurance company, would conflict with other portions of the Act. If dependency were required of all relatives, excluding spouses of course, then the words “child, parent, brother, sister” would be mere redundancies. Such a reading would contradict the settled rule of statutory construction that all words are to be given effect if possible. 1 Pa.C.S. §§ 1921(a), 1922(2); Lukus v. Westinghouse Electric Corp., 276 Pa.Superior Ct. 232, 419 A.2d 431 (1980). Secondly, a requirement that all survivors (excepting spouses) be dependent upon the deceased for support would tend to vitiate the definition of “survivor’s loss” contained in the same section of the Act. The definition of “survivor’s loss” speaks in terms of the deceased’s “contribution” to the survivor or survivors of money and services performed gratis. Nowhere does there appear the indication that to recover the economic loss, or “contribution,” that all survivors show dependency. Furthermore, we do not believe that the reading of “survivor” advanced by the insurance company comports with the General Assembly’s stated purpose in enacting the No-fault Act, which was to secure the prompt and adequate compensation of economic losses arising out of motor vehicle accidents to the maximum extent feasible. 40 P.S. § 1009.102. It would seem that a strict reading of this insurance statute, applying the last antecedent rule and giving effect to all provisions of the statute where possible, results in a construction of the definition of “survivor” different from that accepted by the lower court and proposed by the insurance company. In other words, “dependent” would seem to modify only the word “relative” and no other.

Not only would the insurance company’s reading of “survivor” create internal inconsistencies in the No-fault Act, but moreover, it would conflict with the Pennsylvania Wrongful Death Act. The Wrongful Death Act does not require a survivor-beneficiary to show dependency, but merely economic loss as the result of the deceased’s death. See Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Prince v. Adams, 229 Pa.Superior Ct. 150, 324 A.2d 358 (1974); Migias v. United States, 167 F.Supp. 482 (W.D. of Pa., 1959). Under appellee’s analysis of the No-fault Act, those otherwise entitled to recovery for the wrongful death of their deceased under the Wrongful Death Act who were not dependent upon the deceased but who could show economic loss resulting from the death would be precluded from that recovery if their deceased died as the result of an accident “arising out of the maintenance or use of a motor vehicle.” 40 P.S. § 1009.103 (“Loss”). This is so because the No-fault Act abolishes tort liability in wrongful death actions when the amount of economic detriment visited upon the deceased’s family does not exceed $5,000. Where that detriment is greater than $5,000 tort liability remains as before. See 40 P.S. § 103 (“Survivor’s loss”), 201, 202(c), 301(a)(4). Under appellee’s analysis, those members of the deceased’s immediate family—children and parents—who might be able to demonstrate economic detriment not amounting to “dependency” upon the deceased for support but in excess of $5,000 would be precluded from recovering their losses under the Wrongful Death Act, not because their losses would be less than the $5,000 tort liability threshold in wrongful death cases, but because they would be unable to meet the definition of “survivor” since they could not prove their “dependency” upon the deceased under the No-fault Act. In light of the General Assembly’s stated purpose in enacting the No-fault Act, we believe that they could not have intended such a result. Had the General Assembly intended that result it could easily have drafted the Wrongful Death Act in a way which would have made it clear that such a result was indeed intended, and which would have eliminated the possibility of confusion. That the General Assembly did not perceive a conflict between the two Acts tends to indicate that the General Assembly did not intend the result now favored by the insurance company because conflict between the two Acts is inherent in the result argued by appellee. Furthermore, that the General Assembly did not see a conflict in the two Acts supports our reading of the No-fault Act, which harmonizes the Acts rather than creating a conflict between them. Cf. Heffner v. Allstate Ins. Co., 265 Pa.Superior Ct. 181, 401 A.2d 1160 (1979), aff’d sub nom. Allstate Ins. Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980).

As we view it, the definition of “survivor” accepted by the lower court creates inconsistencies within the No-fault Act, conflicts with the General Assembly’s purpose in enacting the statute, and conflicts with the later enacted Wrongful Death Act as well. By the rules of statutory construction we are logically compelled to read “survivor” otherwise. We hold today that the word “dependent” contained in the definition of “survivor” in Section 103 of the No-fault Act, does not modify the entire sub-section, i.e. the words “child, parent, brother, sister,” but was intended by the General Assembly to modify only the word immediately preceeding it—“relative.” Because the lower court erred in arriving at a different reading of the Act its order denying appellant the survivor’s loss benefits she sought must be reversed.

The judgment in favor of appellee is vacated, the order below reversed, and the case remanded for the entry of an order below not inconsistent with this opinion. Our jurisdiction is relinquished.

Reversed and remanded with directives.

HESTER, J., files a dissenting opinion.

HESTER, Judge,

dissenting:

I respectfully dissent.

This is a suit instituted by the estate of a deceased medical doctor to recover work loss and survivors loss benefits under the No-Fault Act. At the time of his death he was a duly licenced medical doctor serving his residency. He was single, without children, survived by his mother. His mother is the administrator of his estate.

I dissent for the reasons set forth in my dissenting opinion in Freeze v. Donegal Mutual Insurance Company, 301 Pa.Superior Ct. 344, 447 A.2d 999 (1982). As set forth in my dissent, the No-Fault Act makes no provisions for the recovery of work loss benefits by the estate of a deceased victim. The estate is not a survivor as defined by the Act.

In the within appeal, the majority fails to distinguish, as did Judge Greenberg of the court below, between the mother as a parent of the deceased victim, and the mother as the administrator of his estate. The appellant is the estate, not the mother as a survivor. The majority obviously considers the mother to be the appellant rather than the estate. The majority thus proceeds to determine that even though the mother was not dependent upon her deceased son at the time of his death, she was entitled to both work loss and survivor’s loss benefits. That issue of dependency is not and should not be involved in this appeal.

The majority should not have proceeded into determining whether the mother was dependent upon her deceased son at the time of his death. The mother is not the appellant. The mother is not a party to this litigation. The estate is the appellant. The estate is a separate and distinct entity. To understate the situation, there is a vast difference. The mother, being a parent, is included in the definition of “survivor” in the No-Fault Act. The estate is not.

On page 1081 the majority states:

Although the Decedent’s mother was not financially dependent on him at the time of his death, she maintained that Decedent would have contributed some financial support toward her goal to immigrate to the United States. Therefore, she maintains that under the No-Fault Act, 40 P.S. 1009.101, et seq., she is entitled to the $15,000 policy limit covering work loss, and the $5,000 policy limit covering survivor’s loss. (Emphasis added).

I respectfully submit this information is irrelevant. The mother is not the appellant-plaintiff. The estate is the appellant.

The majority continues on page 1081 to state:

“Although the parties had stipulated that appellant would have received in excess of $5,000 from her son had he survived the accident, the court denied both the work loss benefits and survivor’s loss benefits because appellant was not dependent upon him for support at the time of his death.” (Emphasis added).

This is not a correct recitation of the facts. The appellant is the estate of the deceased victim. It is obvious that the majority mistakenly considers the mother to be the appellant.

As stated by the majority, the expressed intent of the legislature in enacting the No-Fault Act, 40 P.S. § 1009.102:

(3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways;
(4) to avoid any undue burden on commerce; during the intrastate transportation of individuals, it is necessary and proper to have a Statewide low-cost, comprehensive, and fair system of compensating and restoring motor vehicle accident victims and the survivors of deceased victims;
(b) Purposes.—Therefore, it is hereby declared to be the policy of the General Assembly to establish ... a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims. (Emphasis added).

I direct the majority’s attention to the repetitive use of the term “survivors”. There can be no doubt that the Legislature intended the recovery of the No-Fault benefits only for the “Survivors” as defined in the Act.

As the majority has further pointed out, the legislature defined the term “Survivor” as used in the Act:

“Survivor means
(a) spouse; or
(b) child, parent, brother, sister or dependent upon the deceased for support.”

It is obvious that the estate of a deceased victim cannot be considered a survivor under the provisions of the No-Fault Act. The Legislature has omitted an estate from the definition of “Survivor”.

It is equally obvious that the principle of expressio unius est exclusio alterius must here be applied by this Court. By expressly naming the entities that are to be considered as “Survivors”, the Legislature intended to exclude all parties and/or entities not included in their definition.

The majority goes to great lengths to set aside this Court’s panel Opinion in Midboe v. State Farm Mutual Auto Insurance Company, 261 Pa.Superior Ct. 447, 395 A.2d 991 (1978); affirmed by the evenly divided Supreme Court, 495 Pa. 348, 433 A.2d 1342 (1981).

I respectfully submit the Midboe opinions have no application to the fact situation in the case at bar. In Midboe, the suit to recover No-Fault benefits was instituted by Elizabeth Midboe, the mother of an 18 year old boy killed in a motor vehicle accident. She was clearly a “survivor” under No-Fault and entitled to the benefits provided for in the Act. She sued in her own name, not in the name of the estate of her deceased son. The trial court denied recovery on the basis that the mother was unable to demonstrate that she was dependent upon her 18 year old son at the time of his death. The lower court reasoned that the definition of the term “survivor” in the Act mandated that the mother, as a parent, had the burden of proving that she was dependent upon the deceased son at the time of his death.

There was no question that the appellant-plaintiff was a “survivor” under the Act.

The majority would adopt the “last antecedent rule” and hold that the clause “dependent upon the decedent for support” modified only the word “relative” and not the words “child”, “parent”, “brother”, “sister”. Therefore the parent does not have to prove dependency upon the deceased victim. I concur with this conclusion.

However, I repeat, the majority should not have reached the dependency issue. The estate of a deceased victim, by statute, cannot collect survivors loss benefits under the No-Fault Act. The estate cannot be a “survivor ” within the No-Fault Act definition of survivor. Further, the Act does not provide for the recovery of the basic loss benefits by the estate of a deceased victim. This portion of the Act is not ambiguous. It requires no Judicial interpretation.

I therefore dissent.

      . This case was originally argued before a panel of this Court. Another panel heard argument in Freeze v. Donegal Mut. Ins. Co., 301 Pa.Superior Ct. 344, 447 A.2d 999 (1982) on one of the issues presented in this case. We ordered both cases argued before the Court en banc because of the importance of the questions involved.

      . Act of July 19, 1974, P.L. 489, No. 176; 40 P.S. §§ 1009.101 et seq. (Supp.1980-81). Hereinafter referred to as the Act or the No-fault Act.

      . See Sachritz v. Pennsylvania Nat. Mut. Cas. Ins. Co., 293 Pa.Superior Ct. 483, 439 A.2d 678 (1981) for the coining of this term.

      . The panel consisted of this writer and Judges Spaeth and Lipez.

      . Act of July 19, 1974, P.L. 489, No. 176, § 103; 40 P.S. § 1009.103, (Supp. 1980-81).

      . Cf. Commonwealth v. Mason, 456 Pa. 602, 322 A.2d 357 (1974) (3-2 decision with only 5 members of the Court participating is binding precedent despite fact that majority in case was not a majority of the full Court). And see, Crowell Office Equip. Co. v. Krug, 213 Pa.Superior Ct. 261, 247 A.2d 657 (1968) (Superior Court may not overrule decision of Supreme Court).

      . See, e.g., Baltimore & Ohio R. Co. v. Commonwealth Dept. of Labor & Ind., 461 Pa. 68, 334 A.2d 636 (1975) appeal dismissed 423 U.S. 806, 96 S.Ct. 14, 46 L.Ed.2d 26 (1975); Sones v. Aetna Cas. & Ins. Co., 270 Pa.Superior Ct. 330, 411 A.2d 552 (1979).

      . Even if we had written a memorandum opinion when we considered Midboe, it could carry no weight as precedent. See K. N. v. Cades, 288 Pa.Superior Ct. 555, 432 A.2d 1010 (1981).

      . In any event, even if we were to conclude that the Midboe panel decision constitutes reliable precedent, the Court sitting en banc, as it is today, would have the power to overrule that panel decision. See Toll v. Toll, 293 Pa.Superior Ct. 549, 439 A.2d 712 (1982) (Court en banc overruled an earlier panel decision in a different case).

      . Act of November 25, 1970, P.L. 707, No. 230, repealed and reenacted, Act of December 6, 1972, P.L. 1339, No. 390; 1 Pa.C.S. § 1501 et seq.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 102; 40 P.S. § 1009.102.

      . Black’s Law Dictionary, Fifth Edition, defines the “last antecedent rule” as follows:
      A canon of statutory construction that relative or qualifying words or phrases are to be applied to the words or phrases immediately preceding, and as not extending to or including other words, phrases, or clauses more remote, unless such extension or inclusion is clearly required by the intent and meaning of the context or disclosed by an examination of the entire act.

      . “Survivor’s loss” means the:
      (A) loss of income of a deceased victim which would probably have been contributed to a survivor or survivors, if such victim had not sustained the fatal injury; and
      (B) expenses reasonably incurred by a survivor or survivors, after a victim’s death resulting from injury, in which the victim would have performed, not for income, but for their benefit, if he had not sustained the fatal injury, reduced by expenses which the survivor or survivors would probably have incurred but avoided by reason of the victim’s death resulting from injury.
      40 P.S. § 1009.103.

      . See Wercoch v. Liberty Mut. Ins. Co., 287 Pa.Superior Ct. 45, 429 A.2d 712 (1981) (Estranged wife of the deceased sought survivor’s loss benefits). There a panel of this Court held that once a person has qualified as a “survivor”, the survivor must still plead and prove the amount of the loss, or contribution and expenses incurred. Thus it would seem that the dependency of a relative is an issue separate and apart from the amount of survivor’s loss benefits available to the deceased’s survivors.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 8301, substantially re-enacting the Act of April 15, 1851, P.L. 669, § 19, 12 P.S. § 1601, the Act of April 26, 1855, P.L. 309, § 1, 12 P.S. § 1602, and the Act of May 13, 1927, P.L. 992, No. 480, § 1, 12 P.S. § 16Q4.

      . The Statutory Construction Act provides that where two statutes are irreconcilable then the later enacted statute will prevail. See 1 Pa.C.S. §§ 1935 & 1936. If we were to hold these two Acts irreconcilable the Wrongful Death Act, enacted two years after the No-fault Act, would emerge the victor. That, however, is not our holding since our reading reconciles the two Acts.

      . 40 P.S. § 1009.103 (“Survivor”).


author: WIEAND, Judge:

text:
    448 A.2d 1087
    In The Matter of Janice JACKSON, A Minor. Appeal of Patricia JACKSON.
    Superior Court of Pennsylvania.
    Submitted March 23, 1981.
    Filed July 23, 1982.

      Patricia Jackson, appellant, in pro. per.
    Spero T. Lappas, Harrisburg, for appellee.

      Before PRICE, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

Patricia Jackson, the appellant, contends that the trial court erred when it adjudicated her daughter, Janice, a dependent child and placed her in the care of a paternal aunt and uncle. We are constrained to agree that the adjudication of dependency is not supported by the record. Therefore, we vacate such adjudication.

The procedural history of this case is complex. Janice Jackson, born September 28, 1971, is the child of the appellant and William Crystal. The parents were not and never have been married. Appellant has two other daughters, whose custody is not in issue in these proceedings. On February 4, 1978, Crystal, the child’s father, filed a petition for habeas corpus seeking to remove Janice from appellant’s custody and place her with Crystal’s sister, Mrs. Arlene Richardson. After hearing, the court awarded custody of the child to Mrs. Richardson, but granted appellant rights of visitation. During one of those visits, on April 29, 1978, Janice complained that her uncle, Robert Richardson, had beaten her, and appellant took the child to the Harrisburg Hospital. An emergency room physician called Child Line which, in turn, contacted Dauphin County Social Services for Children and Youth (hereinafter “the agency”). Following an investigation, the agency filed a petition on May 1, 1978, alleging that Janice Jackson was dependent under the provisions of the Juvenile Act. Janice was taken into custody by the agency and placed in a foster home. After a preliminary hearing before a Juvenile Master, she was continued in foster placement.

At the dependency hearing on August 14, 1978, appellant, the child, and the agency were all represented by counsel. The trial court directed that the custody dispute be consolidated with the dependency hearing; and, therefore, an attorney also appeared on behalf of William Crystal and the Richardsons. The agency presented only one witness, a caseworker, who testified in support of the dependency petition. The Richardsons also presented testimony and called as a witness another caseworker with some knowledge of the child’s history. Appellant and two witnesses on behalf of appellant testified in opposition to the petition. At the conclusion of the hearing, the court (1) found Janice to be a dependent child, and (2) awarded temporary custody to Arlene Richardson, subject to visitation by appellant. Timely appeals from both orders were filed. The appeal from the custody order, filed to No. 185 March Term, 1978, was dismissed per curiam on January 3, 1980, for failure to proceed. Consequently, only the appeal from the adjudication of Janice as a dependent child is presently before us for review.

In order to find a child “dependent” under the Juvenile Act, it must be shown that the child “is without proper parental care or control, subsistence as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals . ...”

However, the Juvenile Act clearly seeks to preserve family unity “whenever possible.” In re Donna W., 284 Pa.Super. 338, 343, 425 A.2d 1132, 1134 (1981); In Interest of Pernishek, 268 Pa.Super. 447, 457, 408 A.2d 872, 877 (1979); In re Jackson, 267 Pa.Super. 428, 431, 406 A.2d 1116, 1118 (1979); In re Whittle, 263 Pa.Super. 312, 316, 397 A.2d 1225, 1226 (1979); In Interest of LaRue, 244 Pa.Super. 218, 223, 366 A.2d 1271, 1284 (1976). To achieve that end, our courts require proof of dependency that is clear and convincing. Thus, in In re A. E. M., 288 Pa.Super. 284, 431 A.2d 1049 (1981), this Court said:

“Before interfering with a parent’s care or control of a child and ordering the intervention of an agency of the state, a court must first determine that the child is dependent.” In the Interest of Theresa E., 287 Pa.Super. 162, 172, 429 A.2d 1150, 1155 (1981). See 42 Pa.C.S.A. § 6341(a). “[T]he fact of dependency must be proved by evidence that is ‘clear and convincing.’ ” In the Interest of Theresa E., supra, 287 Pa.Superior at 172, 429 A.2d at 1155. See 42 Pa.C.S.A. § 6341(c). “[I]n determining whether a child is dependent, the hearing judge should not ask what are the child’s ‘best interests’ but whether the child is presently without proper parental care and, if so, whether such care is immediately available." In the Interest of Pernishek, 268 Pa.Super. 447, 458, 408 A.2d 872, 877-78 (1979) (citing In the Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976)). Accord, In the Interest of Theresa E., supra; In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980). A child who has been adjudicated dependent may not be separated from his parents unless such separation is clearly necessary. 42 Pa.C.S.A. § 6301(b)(3); In the Interest of Theresa E., supra; In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132 (1981) (collecting cases). “To ensure a proper resolution of these issues, separate counsel should represent the child at the dependency hearing, and the hearing judge should conduct a comprehensive inquiry by receiving evidence from both interested and disinterested witnesses and should support his decision in an opinion in which he discusses and analyzes the evidence fully.” In the Interest of Pernishek, supra [268 Pa.Super.] at 457, 408 .2d at 877. Accord, In the Interest of Theresa E., supra; In the Interest of S. M. S., 284 Pa.Super. 9, 424 A.2d 1365 (1981).

Id., 288 Pa.Superior at 288, 431 A.2d at 1051-52 (emphasis added). The standard of “clear and convincing evidence” means “testimony [that] is so clear, direct, weighty, and convincing as to enable the [trier of the facts] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” In re Jackson, supra, 267 Pa.Super. at 431, 406 A.2d at 1118, quoting LaRocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963).

Our review of the record compels us to conclude that in this case the proof of “dependency” was inadequate. Only one witness appeared for the petitioning agency. That witness, caseworker Carol Cooksey, had not become involved in the case until after the report of possible abuse while the child was in the custody of her paternal aunt and uncle. Her testimony was a superficial recitation of conditions existing at the time of her testimony. She testified that both the Richardson and Jackson homes were clean; that she had been told by Janice’s foster mother that the child had “no major problems” while in foster care; and that Janice’s visits with appellant went well. She also referred to a psychiatric report which had been prepared by a Dr. Hume, but that report was not introduced, and its contents were not made a part of the record. Ms. Cooksey had no knowledge of Janice’s situation while she was residing with her mother; she had made no inquiry regarding appellant’s two other children; she could not testify as to the condition of the father’s home; and she was unaware of the length and circumstances of his visits at the Richardson home. Although Janice had been left with a babysitter while the Richardsons worked during the day, the caseworker knew nothing of the babysitter’s identity, age, or qualifications, and had not visited or observed conditions at the sitter’s home. The caseworker also had no knowledge or records regarding Janice’s psychological or emotional state prior to the commencement of the proceedings.

A second caseworker was called by counsel for the child’s father. She had assisted in the investigation concerning suspected child abuse by the Richardsons. Her involvement had terminated when Janice was placed in the foster home. She had no knowledge of the relationship between appellant and her daughter or the care which appellant was able to provide.

Both Mr. and Mrs. Richardson testified, denying that any abuse had occurred. Their testimony was that appellant was hostile to them; that Janice was in need of special educational attention when she came to live with them; that they provided her with religious training; that William Crystal was a frequent visitor at their home; that he loved and was attentive to Janice; and that they too loved Janice and wanted her to remain with them.

It can be seen from this recitation that, although there was evidence to show the adequacy of the Richardson home, there was almost a total absence of evidence regarding appellant’s abilities and/or shortcomings as a parent. Also absent was a professional evaluation of appellant’s parenting abilities and the child’s prospects if permitted to remain with her natural mother. See In Interest of H. B., 293 Pa.Super. 109, 116, 437 A.2d 1229, 1233 (1981). Cf. In Interest of S. M. S., 284 Pa.Super. 9, 424 A.2d 1365 (1981) (virtually unanimous conclusions of social workers, psychiatriste, and psychologists constituted clear and convincing evidence of risk of substandard care if child were returned to parents). A finding of dependency is not the same thing as a determination of the best interests of the child; the question is whether the child is presently without proper parental care and, if so, whether that care is immediately available. In re Pernishek, supra, 268 Pa.Super. at 458, 408 A.2d at 878. Nothing in this record indicates that Janice Jackson, on August 14, 1978, was without proper parental care or that appellant could not provide future care.

The analysis of the evidence made by the trial judge suggests that the adjudication of dependency was based exclusively upon a determination of the best interests of the child. This may have been caused by the consolidation of the dependency and custody proceedings. To prevent this from occurring, the legislature has now provided that “hearings under [Chapter 63, the Juvenile Act] shall be conducted by the court without a jury, in an informal but orderly manner, and separate from other proceedings not included in section 6303 (relating to scope of chapter).” 42 Pa.C.S. § 6336. Habeas corpus proceedings do not fall within the scope of Chapter 63; they are conducted pursuant to Chapter 65 of the Judicial Code. See also In re Jackson, supra 267 Pa.Super. at 432, 406 A.2d at 1118.

Because the evidence does not support the trial court’s finding of dependency, we are obliged to reverse. We observe, however, that custody of Janice Jackson has been with Arlene Richardson since April, 1978. We also observe that there is before us no appeal from the order awarding such custody. Therefore, our decision does not affect the custody of the child. We vacate only the finding of dependency.

The order adjudicating the child dependent is vacated.

      . These proceedings were commenced pursuant to the Juvenile Act of December 6, 1972, P.L. 1464, No. 333, as amended, 11 P.S. § 50-101 et seq. That act has been repealed and codified at 42 Pa.C.S. § 6301 et seq., effective June 27, 1978.

      . The delay between the notice of appeal and the submission of briefs in this case appears to be due to difficulties encountered between appellant and her counsel. The record discloses that a voluntary discontinuance of appeal was filed on October 15, 1979, but later withdrawn. On May 14, 1980, appellant’s counsel petitioned this court to withdraw as counsel. A rule to show cause was issued by this court on May 29, 1980, containing language that counsel would not be permitted to withdraw until the requirements of Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974), had been met. The briefing schedule was thereupon suspended. Appellant’s counsel filed a report to the court on June 23, 1980, indicating that appellant had not responded to the rule and that counsel would file a statement meeting the requirements of Greer. However, appellant’s counsel filed a brief with this court on September 11, 1980, which included an introductory comment that Greer was inapplicable because the appeal was neither frivolous nor meritless; that the reason for withdrawal related to counsel’s inability to secure cooperation of appellant in pursuing the appeal. On September 19, 1980, counsel was permitted to withdraw. Nevertheless, the case continued on our court’s docket, was listed for argument and was submitted for decision.

      . The definition of “dependent child” is identical under both the Juvenile Act, 11 P.S. § 50-102(4) and the codified act, 42 Pa.C.S. § 6302.


author: PRICE, Judge.

text:
    448 A.2d 1090
    COMMONWEALTH of Pennsylvania v. Walter HILL, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed July 30, 1982.

      Richard J. Hodgson, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.

      Before PRICE, CAVANAUGH, and WATKINS, JJ.
   PRICE, Judge.

Appellant, Walter Hill, was convicted of burglary, robbery, aggravated assault and battery, and conspiracy on May 16,1973. The conviction was appealed to this court and affirmed on December 1, 1975, except for a modification from a twenty-three and one half to forty-seven year sentence to a twenty-two and one half to forty-five year sentence. Commonwealth v. Hill, 237 Pa. Superior Ct. 543, 353 A.2d 870 (1975). On December 4, 1978, appellant filed a petition seeking relief under the Post Conviction Hearing Act. The trial court dismissed appellant’s petition without a hearing on the merits, finding that appellant’s claims were “patently frivolous.” Slip op. at 2. Appellant contends that it was error to dismiss his petition without first granting him a hearing on the merits of his claim of ineffectiveness of trial counsel. We agree and thus remand for a hearing limited, however, to the issue whether counsel was derelict in failing to seek a determination by the court regarding the admissibility of appellant’s prior convictions.

At approximately 6:00 p. m. on December 11, 1972, two men robbed Molettiere’s Market in Lansdale, Montgomery County. During the robbery the men beat the proprietor and a sixty-six year old patron. Two men matching the description of the robbers, appellant and Walter Burgess, were apprehended approximately one hour later in the vicinity of the market. At the time of his arrest appellant was carrying the same amount of money as had been stolen from the market.

Appellant was represented both at trial and on appeal by counsel from the Montgomery County Public Defender’s Office. The question of ineffectiveness of trial counsel was first raised in appellant’s petition for relief under the Post Conviction Hearing Act [hereinafter PCHA]. “Because of the inherent conflict of loyalties to one’s client on the one hand and to one’s associates on the other,” an attorney from the same office may be reluctant to raise the issue of ineffectiveness of trial counsel. Commonwealth v. Prowell, 249 Pa.Superior Ct. 435, 439, 378 A.2d 374, 376 (1977). Ineffective assistance of counsel, therefore, must be asserted at the first stage at which the party is represented by counsel not associated with the same public defender’s office. Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979); Commonwealth v. Beasley, 249 Pa. Superior Ct. 162, 375 A.2d 809 (1977). Since appellant was first represented by different counsel in the post conviction proceedings, and because the issue was first raised in his petition for PCHA relief, his claim is properly before us.

“It is by now axiomatic that the test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest.” Commonwealth v. Musi, 486 Pa. 102, 107, 404 A.2d 378, 380 (1979), citing Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. Yocham, 483 Pa. 478, 397 A.2d 766 (1979). In reviewing the facts we are “always mindful of the presumption that counsel is competent.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 603, 235 A.2d 349, 352 (1967). “[Appellant] has the burden to show prejudice. That determination depends on whether adequate representation was actually provided.” Commonwealth v. Garcia, 478 Pa. 406, 416-17, 387 A.2d 46, 51 (1978).

We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

Commonwealth v. Sherard, 483 Pa. 183, 190-91, 394 A.2d 971, 975 (1978), quoting Maroney, 427 Pa. at 604, 235 A.2d at 352 (emphasis in original). Commonwealth v. Bartlett, 486 Pa. 396, 406 A.2d 340 (1979); Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236.

Appellant first claims that he was entitled to a hearing on the merits of his contention that counsel failed to challenge the introduction of illegally obtained evidence. Soon after their arrest, appellant and Burgess contacted the detective investigating the case and informed him that the proprietor of Molettiere’s Market was their accomplice in a counterfeiting operation. The two men were removed from jail without notifying their counsel, and instructed to phone the proprietor in an attempt to implicate him in the alleged counterfeiting scheme. The telephone call, which was monitored by the police, produced no evidence to corroborate their assertions. Indeed, the only related evidence admitted at trial was the proprietor’s comment that he received a telephone call from Burgess when he was out of jail. Since the prosecution did not use any evidence from this incident against appellant, his claim that counsel was ineffective is clearly without merit. The PCHA provides that “the Court may deny a hearing if the Petitioner’s claim is patently frivolous and is without a trace of support either on the record or from the evidence submitted by the Petitioner.” 19 P.S. § 1180-9. We thus concur in the determination of the court below that a hearing on the merits of this claim was not required.

Appellant also contends that he should have been granted a hearing to determine whether trial counsel exercised due diligence in seeking to assure that evidence of appellant’s prior convictions could not be introduced at trial. The determination of admissibility of prior convictions is a matter of judicial discretion. Commonwealth v. Green, 477 Pa. 170, 383 A.2d 877 (1978); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973); Commonwealth v. Flores, 247 Pa.Superior Ct. 140, 371 A.2d 1366 (1977). When the admissibility of prior convictions is an issue, the court must conduct an in camera Bighum hearing prior to the commencement of trial. Once the court has determined the admissibility of prior convictions before trial, a defendant can more intelligently weigh his or her decision to testify at trial. Instantly, without the benefit of a hearing on the merits, we are unable to determine whether counsel’s failure to settle this issue prior to trial constituted a reasonable course of conduct. We thus are constrained to remand for the limited purpose of deciding if counsel was ineffective in failing to seek a determination regarding the admissibility of appellant’s prior convictions.

Accordingly, we remand for a hearing on the merits only on the latter part of .appellant’s claim. Jurisdiction is not retained.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 903.

      . 19 P.S. § 1180-1 et seq.

      . Appellant and Walter Burgess were codefendants at trial.

      . This testimony was elicited in response to a question asked by defense counsel. A motion for mistrial was made and denied and the court gave curative instructions. On appeal, we held that the testimony did not require a mistrial. Commonwealth v. Hill, 237 Pa.Superior Ct. 543, 353 A.2d 870 (1975).

      . Our supreme court has promulgated the following considerations for the judiciary to utilize in making such determinations:
      (1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; (2) the likelihood in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; (3) the age and circumstances of the defendant; (4) the strength of the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and (5) the existence of alternative means of attacking the defendant’s credibility.

        Commonwealth v. Roots, 482 Pa. 33, 39—40, 393 A.2d 364, 367 (1978).


author:
HESTER, Judge:
      MONTGOMERY, Judge, POPOVICH, Judge,

text:
    448 A.2d 1093
    COMMONWEALTH of Pennsylvania, Appellant, v. William W. CLYDE.
    Superior Court of Pennsylvania.
    Submitted May 22, 1981.
    Filed July 30, 1982.

      P. Cortez Bell, Assistant District Attorney, Clearfield, for Commonwealth, appellant.
    Richard Milgrub, Clearfield, for appellee.
    Before HESTER, POPOVICH and MONTGOMERY, JJ.
   HESTER, Judge:

Appellee William W. Clyde was charged with the summary offense of operating an overweight vehicle in violation of the Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81, as amended, 75 Pa.C.S.A. Section 4941, 4942. On October 16, 1979, appellee was found guilty by a District Magistrate and fined $1,890.00, pursuant to 75 Pa.C.S.A. Section 4945.

Appellee appealed to the Court of Common Pleas of Clearfield County. Following a de novo hearing before the Honorable John K. Reilly, Jr., on August 20, 1980, Judge Reilly entered an Order on September 23, 1980 sustaining the appeal and dismissing the charges. The district attorney of Clearfield County has filed this appeal. The Commonwealth of Pennsylvania, Department of Transportation, has also filed an amicus brief in support of appellant’s position.

The underlying facts are not in dispute. Appellee readily acknowledges that his vehicle was in excess of the weight limitations specified by the Vehicle Code. Appellee, as an employee of Sandy Township, was transporting limestone to a highway construction site within Sandy Township at the time. Although appellee was operating the vehicle approximately 7 to 8 miles from the construction site, he never traveled outside of the Township and was retrieving necessary road building materials from their nearest possible site.

The lower court dismissed the charges on the basis of 75 Pa.C.S.A. Section 4963, which states:

“Exemptions for Vehicles Used in State Highway Construction
No special permit shall be required for movement across, upon or along State or State-aid highways for oversized or overweight vehicles of a contractor used for the construction or improvement of such highways.” We affirm.

Chapter 49 of the Vehicle Code regulates the size, weight, and road restrictions concerning vehicles operating on highways within the Commonwealth. Subchapter C of Chapter 49, 75 Pa.C.S.A. Section 4941 et seq., specifies the applicable weight restrictions. Subchapter D, 75 Pa.C.S.A. Section 4961 et seq., allows special permits for excessive size and weight.

Neither the Department of Transportation nor appellant, question whether appellee is “a contractor” within the meaning of 75 Pa.C.S.A. Section 4963. Nor do they contest the fact that appellee was moving upon a state highway for the purpose of the construction or improvement of such highway. Appellant and the Department of Transportation contend that 75 Pa.C.S.A. Section 4963 must be read in connection with 75 Pa.C.S.A. Section 4961, which authorizes the issuance of special permits to overweight vehicles only in four circumstances, including “a combination carrying a nondivisible load ...” 75 Pa.C.S.A. Section 4961(a)(2). Appellant contends, that since appellee’s load was divisible, he would not have been entitled to a special permit. Therefore, the exemption from the special-permit requirement, specified by 75 Pa.C.S.A. Section 4963 does not apply. We conclude that this reasoning strains the clear intent of the General Assembly. See 1 Pa.C.S.A. Section 1921.

We have previously stated that the intent of the General Assembly in enacting Chapter 49 of the Vehicle Code was “. . . to preserve the safety of the traveling public and to maintain the roads of the Commonwealth in a suitable condition.” Commonwealth v. Mercer, 294 Pa.Super. 544, 440 A.2d 599, 601 (1982). Although the movement of an overweight vehicle upon a state highway for the construetion or improvement of such highway may not be consistent with the protection and safety of the traveling public, it appears that the General Assembly has found it necessary to totally exempt such a vehicle from the size and weight restriction. Otherwise, the General Assembly would have specified particular situations in which a road construction vehicle is exempt. The General Assembly has also authorized other special permits for construction equipment. See the Act of October 10, 1980, P.L. 791, No. 147, Section 7, 75 Pa.C.S.A. Section 4970(b), which generally authorizes the issuance of an annual permit for an overweight construction truck.

Therefore, under the circumstances of this case, where appellee was operating his vehicle within Sandy Township and within relatively close proximity to the construction site, appellee’s vehicle was exempt from the weight restrictions specified by the Vehicle Code.

Order Affirmed.

MONTGOMERY, J., files a concurring opinion.

POPOVICH, J., files a dissenting opinion.

MONTGOMERY, Judge,

concurring:

I concur with and join the majority, but write separately in order to address the propriety of reaching the merits of the issue before us. This question is raised by the dissent.

In Commonwealth v. Johnson, 270 Pa.Super. 58, 410 A.2d 895 (1979), our court determined that the Commonwealth could not appeal an order sustaining defendant’s appeal from a summary conviction. Johnson is distinguishable from the case at hand, however, as the lower court in Johnson entered a judgment of not guilty when the appeal was sustained. My review of the record before us evinces no entry of such a judgment. Instead, the record reveals that the court below dismissed the charges while sustaining the appeal. I do not find such action to be synonymous with acquittal.

Charges may be dismissed absent a finding of no guilt. The lower court’s disposition of the matter resulted from its finding that the facts of the case as applied to an exemption section of the Motor Vehicle Code rendered appellee exempt from prosecution. An obvious difference exists between a finding of innocence and one of exemption from prosecution. A finding of no guilt results from the valid prosecution for some offense; whereas, an exemption from prosecution gives rise to the premise that no valid prosecution could, or should, have occurred.

In light of the foregoing analysis, taken in conjunction with the fact that the issue before us is a pure question of law, the majority properly reached the merits of the instant matter.

POPOVICH, Judge,

dissenting:

I dissent from the Majority’s Opinion reaching the merits of the instant appeal, inasmuch as the Order appealed from is not “final”. Thus, this Court is without jurisdiction to review the issue proffered.

To explicate, the case at bar is an appeal by the Commonwealth from an Order of the Court of Common Pleas of Clearfield County, Criminal Division, “dismissing]” a summary conviction entered against the appellee, William W. Clyde, by a District Magistrate for operating an overweight vehicle, which was allegedly in violation of 75 Pa.C.S.A. §§ 4941 & 4942.

After conducting a hearing de novo, the lower court issued the following Order:

“NOW, this 23rd day of September, 1980, following hearing into the above-captioned Appeal from Summary Conviction, it is the ORDER of this Court that said Appeal be and is hereby sustained and the charges dismissed.” (Emphasis added)

Most recently, a panel of this Court was confronted with a precisely similar situation, and, in an Opinion authored by President Judge CERCONE, clearly stated:

“This Court has held repeatedly that in an appeal from a summary judgment to the court of common pleas, the judgment of common pleas court should be either ‘guilty’ or ‘not guilty.’ As we wrote in Commonwealth v. Carter, 230 Pa.Superior Ct. 401, 403, 326 A.2d 530, 531 (1974):
A judgment affirming the justice of the peace, dismissing the appeal, or sustaining the appeal, is not sufficient and will be reversed. Commonwealth v. Alton, 209 Pa.Super. 168, 224 A.2d 792 (1966); Commonwealth v. Young, 184 Pa.Super. 658, 135 A.2d 774 (1957); Commonwealth v. Miller, 173 Pa. Super. 168, 96 A.2d 153 (1953).
Furthermore, an order adjudicating guilt must be entered, even though it is implicit in the lower court’s actions and opinion that the court considered the evidence supportive of a finding of guilt. Commonwealth v. Carter, supra; Commonwealth v. Wenyon, 230 Pa.Superior Ct. 342, 326 A.2d 633 (1974).” (Footnote omitted) Commonwealth v. Gula, 300 Pa.Super. 445, 446, 446 A.2d 938, 939 (1982).

In compliance with the dictates of Gula, I would reverse and remand with direction to the lower court to enter either a finding of guilty or not guilty. Since the Commonwealth precipitously places the instant appeal before this Court, we are foreclosed from reaching the merits of the issue raised. Commonwealth v. Gula, supra. Therefore, I respectfully dissent.

      . We are cognizant of the threshold issue involved in this matter, whether the Commonwealth has a right to appeal. The lower court’s order sustained the appeal from the District Magistrate and dismissed the charges. As stated in Commonwealth v. Arnold, 215 Pa.Super. 444, 258 A.2d 885, 886 (1969):
      If the order of the lower court be considered an acquittal, then the Commonwealth has no right to appeal, Commonwealth v. Hollinger, 170 Pa.Super. 180, 84 A.2d 794 (1951); Commonwealth v. Lodge No. 148, L.O.O.M., 188 Pa.Super. 531, 149 A.2d 565 (1959). Where, however, the question involved is purely one of law the Commonwealth may appeal from an adverse ruling in a criminal case. Gaskins Case, 430 Pa. 298, 305, 244 A.2d 662, 666 (1968). For example, the Commonwealth may appeal where an indictment has been quashed, or judgment arrested after verdict of guilty, or from an order quashing the information, [footnotes omitted].
      Since the facts in the instant appeal were not in dispute, we consider the question to be purely one of law, decided solely on the basis of our interpretation of 75 Pa.C.S.A. § 4963. Therefore, the Commonwealth’s appeal was proper.

      . 75 Pa.C.S.A. § 4963.

      . The Commonwealth has the right to appeal pure questions of law. See, Commonwealth v. Davis, 247 Pa.Super. 450, 372 A.2d 912 (1977).


author: HESTER, Judge:

text:
    448 A.2d 1097
    COMMONWEALTH of Pennsylvania, Appellant, v. Phillip W. LIPSCOMB.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1981.
    Filed July 30, 1982.
    John L. Brown, Jr., Assistant District Attorney, Beaver, for the Commonwealth, appellant.

      Arnold Y. Steinberg, Ambridge, for appellee.
    Before SPAETH, HESTER and JOHNSON, JJ.
   HESTER, Judge:

This is a Commonwealth appeal from an Order of the Court of Common Pleas of Beaver County sustaining a demurrer. The procedural history and facts relevant to the issue on appeal are as follows:

On October 17, 1980, at 2:15 a. m., appellee was observed operating a 1975 Pontiac at a high rate of speed travelling south on Merchant Street in Ambridge, in the middle of the street, without lights, by the arresting officer. Since the officer was answering a burglary call at the time, he was unable to pursue the appellee.

At 2:30 a. m. the same day, appelle was again observed by the officer who was seated in a patrol car stopped at a red light in the 1100 block of Merchant Street in Ambridge. The officers heard brakes being applied from behind them and it was necessary to pull forward into the intersection to avoid being struck from the rear. The arresting officer got out of the patrol car, observed appellee’s 1975 Pontiac and went over to the vehicle. He noticed a strong odor of alcohol which continued to be present after appellee stepped out of the car although the odor of alcohol was not appellee’s breath. Appellee then fell against the vehicle and was unable to be given a field sobriety test. He was taken to the police station, where he was given a breathalizer analysis with a result of .14 blood alcohol content. At the close of the Commonwealth’s case, the trial court sustained a demurrer. This appeal followed.

The Commonwealth contends on appeal that the trial court erred in granting the demurrer due to the fact that there was sufficient evidence presented to support a conviction for driving under the influence.

After carefully reviewing the record, we agree.

Accordingly, the Order of the trial court is reversed, and the case is remanded for a new trial.

JOHNSON, J., concurs in the result.


author: CAVANAUGH, Justice:

text:
    448 A.2d 1097
    COMMONWEALTH of Pennsylvania, Appellee, v. Alfred Roy BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 10, 1980.
    Filed July 30, 1982.

      Sally A. Frick, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for the Commonwealth, appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   CAVANAUGH, Justice:

This is an appeal by Alfred Roy Brown from a judgment of sentence for robbery, 18 Pa.C.S.A. § 3701. Appellant argues that he should be discharged because his pre-trial line-up request was improperly denied. Alternatively, appellant urges this Court to grant him a new trial on one or more of several grounds: (a) he was precluded from impeaching two Commonwealth witnesses with their prior inconsistent statements, (b) the guilty verdict was contrary to law and against the weight of the evidence, and (c) the trial court erred in permitting the prosecution to proceed on an accomplice liability theory. Since we agree with appellant that his right to impeach the Commonwealth witnesses was improperly denied, the judgment of sentence is vacated and appellant’s case is remanded for a new trial.

The instant charge arose from a robbery at Jean and Stan’s Bar in Pittsburgh on May 11, 1977. According to bar patrons George Despert and Carolyn King, appellant entered the bar with another male and remained by the front door while his companion, holding the bartender at gunpoint, took money from the cash register and the bartender’s pockets. The second male then told appellant to gather some cigarette packets, which he apparently did. The bartender was subsequently forced into the kitchen by his assailant and instructed to forfeit any other money. The several remaining bar patrons, including Despert and King, were told to do likewise when they were herded into a back room. Throughout the incident, appellant stood by the front door ushering in persons entering the bar.

Appellant, who testified in his own defense at trial, disputed the identification of him by Despert and King as mistaken. Instead, appellant testified that he was four and one-half hours away in Bethlehem, Pennsylvania, with his girlfriend Patricia Ganster. Ms. Ganster corroborated appellant’s testimony.

Despert and King were the only bar patrons to identify appellant for the Commonwealth. The stipulated testimony of two other victims, William Faulk and Linwood Spivey, was that they could not identify appellant. A fifth victim, Milton Baker, testified for the defense that appellant was not the male by the front door because appellant’s skin was too light.

The jury, opting to disbelieve appellant and his witnesses, convicted him of robbery on March 8, 1978. Post-verdict motions raising issues identical to those raised in the instant appeal were denied and appellant was thereafter sentenced to one to five years imprisonment.

Appellant first argues that he is entitled to a discharge because the court improperly denied his pre-preliminary hearing line-up request. We disagree. At the outset, we note that an accused does not have a constitutional right to a line-up. Furthermore, in Commonwealth v. Sexton, 246 Pa.Super. 30, 369 A.2d 794 (1977), rev’d, 485 Pa. 17, 25, 400 A.2d 1289, 1293 (1979), the Pennsylvania Supreme Court specifically “. . . declined to accept a per se rule that a pre-trial, pre-hearing lineup is mandatory in all cases.” Nonetheless, the Court continued, “. .. where . . . the issue of identification is legitimately at issue, a timely request for a pre-trial or pre-hearing identification procedure should be granted.” Ibid.

Here, it is beyond question that identification was legitimately at issue. As in Sexton, the sole evidence linking appellant to the barroom robbery was the identification testimony of George Despert and Carolyn King, both of whom had no knowledge of appellant prior to the crime. However, this case differs significantly from Sexton in that both identification witnesses had an opportunity, prior to the preliminary hearing confrontation, to view appellant: Despert made a photograph identification of appellant on May 23, 1977, two weeks before appellant’s line-up request was proffered; King had seen appellant’s picture in a local newspaper. In any event, the record demonstrates that both witnesses had ample opportunity to observe appellant during the robbery. Under these circumstances, while it may have been preferable to conduct a line-up in order to ameliorate any suggestiveness necessarily inherent in a courtroom identification, and to insure the reliability of identification evidence, we cannot say that the lower court lacked justification in disallowing it.

Secondly, appellant contends that the court improperly permitted the Commonwealth to proceed against him on an accomplice theory of criminal liability, 18 Pa.C.S.A. § 306. Appellant was informed against on the charge of robbery, specifically that in the course of committing a theft, namely a theft of $60 from the cash register and 15 cartons of cigarettes, he put the victim (bartender) in fear of immediate serious bodily injury. The information thus charged appellant as a perpetrator of the robbery, and not as an accomplice. However, the descriptive paragraph contained in the information stated “Actor waited by the front door of the bar as co-actor Williams robbed victim at gun point. Actor had his hand in his pocket as if he had a weapon. Actor and Williams then fled from the bar.”

Before trial, the prosecutor indicated his intent to proceed on an accomplice theory of liability and requested a ruling from the court as to whether an accomplice charge would be given. Following a defense objection on the grounds that the Commonwealth, not having charged appellant as an accomplice in the information, could not now go forward on that theory, the court agreed to give the requested jury instruction.

In Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979), an equally divided Supreme Court permitted a jury charge on accomplice liability although defendant was charged by information only as a principal. We think this case falls within the purview of Perkins and, furthermore, does not offend the sentiments of the dissenters in that case whose objection was based solely on the ground that the Commonwealth’s belated effort to pursue an accomplice liability theory prejudiced defendant. In Perkins, the prosecution requested an accomplice charge the evening before the jury was to be instructed notwithstanding the fact that the theory of accomplice liability was apparently expressly rejected throughout the trial. Here, on the other hand, the Commonwealth indicated its intent to proceed on an accomplice liability theory prior to the commencement of trial and requested an accomplice charge at that time. Its trial evidence, clearly directed towards establishing appellant’s guilt as an accomplice, was in conformity with the descriptive paragraph contained in the robbery information. Appellant, therefore, cannot contend that he lacked notice that the Commonwealth intended to establish his guilt of robbery as an accomplice. Compare Commonwealth v. Frey, 271 Pa.Super. 168, 412 A.2d 629 (1979). Finally, appellant has failed to indicate, and we cannot comprehend, how his defense of alibi would have been altered even had he been specifically charged in the information as an accomplice. For these reasons, we do not find that appellant’s second contention entitles him to a new trial.

We do, however, agree with appellant’s third contention that the trial court improperly impeded his efforts to cross-examine George Despert and Carolyn King with their prior inconsistent statements. In this regard, appellant assails the court’s conduct on two separate grounds: (a) its refusal to allow counsel to use, on cross-examination of Despert and King, inconsistent statements allegedly made by those witnesses to police after the robbery, and (b) its refusal to allow counsel to introduce police testimony as to those inconsistent statements. Although the former claim lacks merit, the latter contention is indeed meritorious. For the sake of clarity, we address them both.

Carolyn King was the first Commonwealth witness to identify appellant at trial as the male standing by the barroom door. In her description of appellant, she stated on both direct and cross-examination that he was not wearing glasses during the robbery. Appellant’s counsel thereafter questioned her as to whether she recalled telling police, shortly after the incident, that appellant had been wearing glasses:

Q. Did you give a statement concerning what went on in the bar and also a description of the actors? Do you recall giving that to the police officers?
A. You mean in the bar?
Q. I’m saying after the robbery, do you recall giving a report to the police?
A. Yes.
Q. You do. And, do you recall what in fact you stated as a description of the actors? Do you recall stating that the one at the door had glasses?
Mr. Dobkin [prosecutor]: Your Honor, at this time, I do want to object. Unless the witness adopts the statement as her own, I think it’s a matter of cross examination of a police officer who would take the stand. If she did not adopt that statement as her own, then, it’s not testimony that she gave that indication to the police.
Mr. Bills [defense counsel]: I will show her the statement and see whether that refreshes her recollection.
The Court: Is that a signed statement?
Mr. Bills: No. It’s a statement taken by the police officer.
The Court: You ask the police then.
Mr. Bills: I’ll call the police on direct.
The Court: She can’t take credit for nothing she didn’t sign.
Mr. Bills: I’ll probe that further. (N.T. 60-61).

Although the court refused to allow counsel to cross-examine King with the actual police statement, counsel then proceeded to elicit from King that she did not recall telling police whether or not appellant had been wearing glasses:

By Mr. Bills:
Q. Mrs. King, do you recall giving a statement to the police?
A. In the bar? Or at the preliminary hearing?
Q. No, in the bar.
A. Yes, I talked to two police officers.
Q. Did you state to them—do you recall stating to them that both individuals had glasses on?
A. The one behind the bar had rose-colored glasses on, like I said.
Q. Do you recall stating what the individual at the door had on, whether he had glasses or whether he didn’t?
A. I don’t recall. (N.T. 61).

Appellant now contends that he should have been permitted to cross-examine Ms. King with her statement given to police. We find, however, that the lower court acted properly in refusing this method of cross-examination.

“It is long settled that a prior inconsistent statement may be used to impeach a witness.” Commonwealth v. Hensley, 295 Pa.Super. 225, 233, 441 A.2d 431, 435 (1982) (citations omitted). In order to do so, there must be evidence that the statement was made or adopted by the witness whose credibility is being impeached. Commonwealth v. Baez, 494 Pa. 388, 394, 431 A.2d 909, 912 (1981). Here Ms. King explicitly stated that she did not recall telling police whether or not appellant wore glasses during the robbery. Thus counsel had not yet presented evidence that the witness made or adopted a prior statement inconsistent with her trial testimony. Under these circumstances, the court properly disallowed the use of the statement in counsel’s cross-examination of Carolyn King.

Similar reasons apply to the court’s refusal to permit cross-examination of George Despert with his allegedly inconsistent statement to police. Despert, the second Commonwealth witness to identify appellant at trial, was asked by appellant’s counsel whether he recalled giving a statement to police on the day of the robbery. When Despert indicated that he did not recall having done so, counsel was permitted to show the witness his police statement. When Despert still could not recall having given a statement to police, counsel requested permission to read the statement to the jury. Since no evidence had yet been introduced that Despert made or adopted the statement, the court properly denied counsel’s request. (N.T. 81-82).

The lower court did, however, abuse its discretion in disallowing police testimony regarding statements given by Despert and King shortly after the robbery. As we have noted, the court stated, during counsel’s attempted cross-examination of King with her allegedly inconsistent statement, that any such statement should be proven by calling the police officer to whom it was made. However, when, at the close of the Commonwealth’s case, counsel requested permission to call as defense witnesses the police officers who interviewed Despert and King, the court declined the request:

Mr. Bills: Could I put it on the record, then, I won’t need the police officers if you are going to deny it. I’ll make the offer, now, put this into evidence. I would ask the Court to permit me to call Detective Jamison as my witness. It’s my understanding that Detective Jamison took a report on 5-11-77 at 5:00 p. m. from Mr. George Despert. I would ask that the Court permit me to call Detective Jamison and elicit whether or not this is a true and correct statement, whether or not he took this down from Mr. Despert. And, I submit that this statement would in fact be a prior inconsistent statement with George Despert’s present trial testimony.
I would also ask the Court to permit me to call another police officer who interviewed Carolyn King, and to elicit the statement from the police report concerning the description of the actors, and also the events in question, and I would also offer this to the Court as a statement of a prior inconsistent statement of Carolyn King. I would do so by calling these individuals as my witnesses and eliciting whether or not they did in fact take the statements and whether or not these statements are true and correct. And, when these statements are read in conjunction with the trial testimony of both George Despert and Carolyn King, they would be shown to be inconsistent with their testimony and, therefore, as impeachable testimony.
Mr. Dobkin: Commonwealth’s position, Your Honor, would be that George Despert viewed the police report on the stand, reviewed it and stated to defense counsel that he doesn’t recall making that statement, therefore, he did not adopt that statement as his own, and I don’t believe it to be a sworn—
Mr. Bills: I would agree with counsel for the Commonwealth, it is not a sworn statement. But my understanding is that as long as the police officer would in fact be permitted to identify this as being a statement taken from George Despert and true and correct and accurate, if indeed they’re inconsistent with George Despert and Carolyn King’s present trial testimony, I would be permitted to do it as a matter of cross-examination and also as a calling of my witnesses in my direct case.
Mr. Dobkin: Just as simply, both witnesses did not adopt the statements as their own, and it’s not a sworn, subscribed statement, therefore, I would object to it, the police report being admitted.
The Court: It will be denied.
Mr. Bills: All right. Can I make this part of the record, then?
The Court: If you want it.
Mr. Bills: All right. I have the four page police report marked as Defense Exhibit 1 and ask to be placed into the record.
The Court: Do you have any objections to that, Mr. Dobkin?
Mr. Dobkin: No, your Honor. (N.T. 98-100).

The common law has long recognized the right of a party to impeach the credibility of an adverse witness by introducing evidence that the witness has made one or more statements inconsistent with his testimony at trial, so long as the inconsistency is not collateral to the issues in the case. Such an inconsistent statement need not be under oath. Nor need it be in writing. It is the substance of the statement, i.e., that it conflicts with the testimony of the witness at trial, that determines its admissibility, not its form.

An inconsistent statement may be proved by getting the witness on the stand to admit making it. But where, as here, the witness does not admit making the inconsistent statement, it may be proved by extrinsic evidence, such as the testimony of the person to whom the statement was made. It does not matter whether the witness denies making the inconsistent statement, or whether he says that he does not recall it. In either event, an adverse party has the right to introduce extrinsic evidence that the witness did, indeed, make the inconsistent statement.

In this case identification testimony of Carolyn King and George Despert was the sole evidence linking appellant to the robbery. It was essential to his defense that he impeach their credibility. Since the identification of appellant was the critical issue at trial, it is quite possible that the excluded testimony of the police that the identifying witnesses had, shortly after the robbery, made statements inconsistent with their testimony at trial would have produced uncertainty in the jury’s mind concerning their credibility at least sufficient to create a reasonable doubt as to the defendant’s guilt. For this reason he is entitled to a new trial.

Judgment of sentence is reversed and the case is remanded for a new trial.

      . On October 11, 1977, appellant’s motion to suppress Despert’s photograph identification on the ground that it was inherently suggestive was denied. That determination has not been challenged in this appeal.

      . This fact was elicited during the October 11, 1977, suppression hearing wherein appellant unsuccessfully sought to suppress King’s preliminary hearing identification.

      . Appellant has not raised an objection to the suppression court’s conclusion that there existed an independent basis for Despert’s and King’s in-court identification of appellant notwithstanding any impropriety in a prior identification procedure.

      . 18 Pa.C.S.A. § 306 provides:
      (a) General rule.—A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
      (b) Conduct of another.—A person is legally accountable for the conduct of another person when:
      (1) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct;
      (2) he is made accountable for the conduct of such other person by this title or by the law defining the offense; or
      (3) . he is an accomplice of such other person in the commission of the offense.
      (c) Accomplice defined.—A person is an accomplice of another person in the commission of an offense if:
      (1) with the intent of promoting or facilitating the commission of the offense,'he:
      (1) solicits such other person to commit it; or
      (ii) aids or agrees or attempts to aid such other person in planning or committing it; or
      (2) his conduct is expressly declared by law to establish his complicity.
      (d) Culpability of accomplice.—When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.
      (e) Status of actor.—In any prosecution for an offense in which criminal liability of the defendant is based upon the conduct of another person pursuant to this section, it is no defense that the offense in question, as defined, can be committed only by a particular class or classes of persons, and the defendant, not belonging to such class or classes, is for that reason legally incapable of committing the offense in an individual capacity.
      (f) Exceptions.—Unless otherwise provided by this title or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:
      (1) he is a victim of that offense;
      (2) the offense is so defined that his conduct is inevitably incident to its commission; or

        (3) he terminates his complicity prior to the commission of the offense and:
      (i) wholly deprives it of effectiveness in the commission of the offense; or
      (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.
      (g) Prosecution of accomplice only.—An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.

      . Pennsylvania adheres to the traditional common law evidential rule that a prior inconsistent statement of a witness may be introduced for impeachment purposes only. It is not substantive evidence. See Commonwealth v. Waller, 498 Pa. 33, 39, 444 A.2d 653, 656 n.2 (1982) in which the contrary rule espoused in this court’s plurality opinion in Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110 (1979) was rejected.
      For a summary and analysis of the law in other jurisdictions see Binder, The Hearsay Handbook, Exception 32.

      . We disapprove, and decline to follow, the dictum in footnote 13 in Commonwealth v. Thomas, 284 Pa.Super. 375, 385, 425 A.2d 1151, 1156 (1981).

      . Because of our disposition of this case, we need not address appellant’s argument that the verdict was contrary to law and against the weight of the evidence.


author: McEWEN, Judge: HESTER, Judge,

text:
    448 A.2d 1104
    Robert A. SIEGLE, Appellant, v. U. S. STEEL CORPORATION.
    Superior Court of Pennsylvania.
    Submitted May 19, 1982.
    Filed July 30, 1982.
    Andrew J. Achman, Pittsburgh, for appellant.
    Richard F. Lerach, Pittsburgh, for appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   McEWEN, Judge:

We here review an Order of the Court of Common Pleas of Allegheny County which sustained preliminary objections in the nature of a demurrer and dismissed the complaint.

Plaintiff brought this action to recover lost earnings and punitive damages from his former employer, the defendantappellee in this lawsuit. The employee filed a complaint in trespass and assumpsit which alleged that the employer committed a tortious act and committed a breach of an oral employment contract when it discharged the plaintiff.

The appellant presents the following questions for our review: (1) whether the trial court properly decided that the complaint failed to state a cause of action upon which relief could be granted?; and (2) whether the plaintiff should be given the opportunity to amend his complaint?

We have carefully reviewed the record and we conclude that the distinguished Allegheny County Common Pleas Court Judge Emil E. Narick has very ably addressed and quite correctly ruled that the complaint failed to state a cause of action.

As a result of this ruling we must now consider whether the plaintiff should be afforded the opportunity to amend his pleading. The defendant-corporation contends that the plaintiff has lost any right to so amend his pleading as a result of the failure of the plaintiff to seek amendment of the complaint in the Common Pleas Court. The Common Pleas Court made no mention in its Order of dismissal of leave to amend the complaint nor did plaintiff himself then seek leave of the couVt to amend the complaint.

While plaintiff would have been better advised to attempt to amend the complaint in the Common Pleas Court, the decision of our Supreme Court in the case of Otto v. American Mutual Insurance Co., 482 Pa. 202, 393 A.2d 450 (1978), dictates that we grant the plaintiff leave to amend his complaint. Associates of Philipsburg v. Hurwitz, 292 Pa.Super. 406, 437 A.2d 447 (1981). Contra Coyne v. Porter-Hayden Co., 286 Pa.Super. 1, 428 A.2d 208 (1981); Smith v. Brown, 283 Pa.Super. 116, 423 A.2d 743 (1980); Snaith v. Snaith, 282 Pa.Super. 450, 422 A.2d 1379 (1980); DiSante v. Russ Financial Co., 251 Pa.Super. 184, 380 A.2d 439 (1977).

In Otto, supra, our Supreme Court allowed the plaintiff the opportunity to file an amended pleading, despite the fact that, as the Superior Court had pointed out in its opinion, the plaintiff did not attempt to amend the complaint at the Common Pleas Court level. In so ruling, the Supreme Court in Otto reiterated the well established rule that, “the right to amend should not be withheld when there is some reasonable possibility that amendment can be accomplished successfully.” Id., 482 Pa. at 205, 393 A.2d at 452. Thus, pursuant to the holding of our Supreme Court in Otto, we will not automatically refuse to allow an amendment even though the plaintiff has not attempted to amend the complaint at the Common Pleas level.

The question remains as to whether “there is some reasonable possibility that the amendment can be accomplished successfully”, or whether it would be futile to grant the plaintiff leave to amend for the reason that it would still be impossible for the plaintiff to state a cause of action. In this case, we cannot conclude that it would be futile to grant the plaintiff leave to amend his complaint.

Accordingly, we affirm that portion of the Order sustaining the preliminary objections of the defendant and vacate that portion of the Order dismissing the complaint of the plaintiff, while remanding this case to the Common Pleas Court for further proceedings consistent with this Opinion. Jurisdiction is relinquished.

Affirmed in part, vacated in part and remanded.

HESTER, J., files a concurring and dissenting statement.

HESTER, Judge,

concurring and dissenting:

I concur with that portion of the majority opinion which affirms the finding of the court below to the effect that the complaint failed to state a cause of action.

I dissent from that portion of the majority opinion which remands in order to permit appellant to amend his complaint.

I would affirm on the opinion of Judge Narick of the court below.

      . Otto v. American Mutual Insurance Co., 241 Pa.Super. 423, 361 A.2d 815 (1976).