author: McEWEN, Judge:

text:
    651 A.2d 1111
    NATIONAL UNION FIRE INSURANCE OF PITTSBURGH, PENNSYLVANIA v. Ralph A. NICHOLAS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 7, 1994.
    Filed Dec. 15, 1994.

      Michael D. Gallagher, Butler, for appellant.
    John R. Fielding, Pittsburgh, for appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   McEWEN, Judge:

This appeal presents an issue of first impression in Pennsylvania: Whether a foreign judgment, registered in Pennsylvania pursuant to the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S. § 4306, (hereinafter “UEFJA”), more than four years after the judgment was entered in the foreign state, is barred by the four-year statute of limitations set forth at 42 Pa.C.S. § 5525(5). The trial court, following review of decisions from other jurisdictions, found that 42 Pa.C.S. § 5525(5) was applicable only to actions on foreign judgments and not to proceedings to register a foreign judgment pursuant to the UEFJA, an undertaking which, the court concluded, would be subject to the 6-year statute of limitations set forth at 42 Pa.C.S. § 5527. We, however, find that the four-year statute of limitations set forth at Section 5525(5) of the Judicial Code is applicable to proceedings under the UEFJA and that the limitations period commences to run on the date that the judgment is entered in the foreign state. We, therefore, reverse.

Appellee, National Union Fire Insurance of Pittsburgh, Pennsylvania, caused a default judgment to be entered against appellant, Ralph A. Nicholas, Jr., on November 25, 1987, in a civil action filed in the New York County Supreme Court. More than five years later, on March 9, 1993, appellee caused the foreign default judgment to be registered in Butler County, Pennsylvania, pursuant to the UEFJA, 42 Pa.C.S. § 4306. Appellant filed a motion to strike off the judgment based on the expiration of the four-year statute of limitations provided by Section 5525(5) of the Judicial Code, 42 Pa.C.S. § 5525(5). The distinguished Judge John H. Brydon, acknowledging that the issue was one of first impression in Pennsylvania, carefully analyzed the issue and concluded that the four-year statute set forth at Section 5525(5) is applicable only to civil actions on foreign judgments and not to proceedings to register foreign judgments pursuant to the UEFJA. We have reviewed the applicable statutes and case law from this as well as other jurisdictions and are unable to agree that the legislature intended to create two separate statutes of limitations applicable to proceedings to enforce foreign judgments in Pennsylvania.

Our review of a trial court decision on a petition to strike a judgment is limited to whether the trial court manifestly abused its discretion or committed an error of law. Tandy Computer Leasing v. DeMarco, 388 Pa.Super. 128, 131, 564 A.2d 1299, 1301 (1989); Bittenbender v. SEPTA 362 Pa.Super. 243, 248, 523 A.2d 1173, 1176 (1987), allo, denied, 517 Pa. 602, 536 A.2d 1327 (1987). In the absence of such a finding, the decision of the trial court must be affirmed.

The UEFJA, which was adopted in Pennsylvania by the Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, provides:

§ 4306. Enforcement of foreign judgments
(a) Short title of section. — This section shall be known and may be cited as the “Uniform Enforcement of Foreign Judgments Act.”
(b) Piling and status of foreign judgments. — A copy of any foreign judgment including the docket entries incidental thereto authenticated in accordance with an act of Congress or this title may be filed in the office of the clerk of any court of common pleas of this Commonwealth. The clerk shall treat the foreign judgment in the same manner as a judgment of any court of common pleas of this Commonwealth. A judgment so filed shall be a lien as of the date of filing and shall have the same effect and be subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of any court of common pleas of this Commonwealth and may be enforced or satisfied in like manner, (emphasis supplied)
(c) Notice of filing.—
(1) At the time of the filing of the foreign judgment, the judgment creditor or his attorney shall make and file with the office of the clerk of the court of common pleas an affidavit setting forth the name and last known post office address of the judgment debtor, and the judgment creditor. In addition, such affidavit shall include a statement that the foreign judgment is valid, enforceable and unsatisfied.
(2) Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post office address of the judgment creditor and the attorney for the judgment creditor, if any, in this Commonwealth. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.
(d) Stay —
(1) If the judgment debtor shows the court of common pleas that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the State in which it was rendered.
(2) If the judgment debtor shows the court of common pleas any ground upon which enforcement of a judgment' of any court of common pleas of this Commonwealth would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this Commonwealth.
(e) Optional procedure. — The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this section remains unimpaired.
(f) Definition. — As used in this section “foreign judgment” means any judgment, decree, or order of a court of the United States or of any other court requiring the payment of money which is entitled to full faith and credit in this Commonwealth.

42 Pa.C.S. § 4306 (emphasis supplied).

The UEFJA afforded judgment creditors an alternative method of enforcing foreign judgments in Pennsylvania. Heretofore, the sole method of doing so was to commence a civil action by filing a complaint and proceeding through to the entry of the judgment in that action. Prior to 1982, the Judicial Code imposed a six-year statute of limitations on all actions “upon a judgment or decree of any court of the United States or of any state”, 42 Pa.C.S. § 5527(1), as well as a six-year limitation period for “any civil action or proceeding which is neither subject to another limitation specified in this sub-chapter nor excluded from the application of a period of limitation by section 5531”. 42 Pa.C.S. § 5527(6). This Court, in Cohen v. Cohen, 352 Pa.Super. 453, 508 A.2d 561 (1986), held that the six-year statute of limitations provided by Section 5527 applied, as a result of the provisions of the Uniform Statute of Limitations on Foreign Claims Act, 42 Pa.C.S. § 5521, to proceedings to register foreign judgments under the UEFJA. The Court did not specifically decide, however, whether subsection 1 or subsection 6 of Section 5527 applied since both subsections provided for a six-year limitations period. Subsequently, the Pennsylvania legislature, by enactment of Section 5525(5) of the Judicial Code, Act of December 20, 1982, P.L. 1409, No. 326, § 201, reduced the statute of limitations applicable to actions upon a “judgment ... of any state” from six years to four years. See: Vol. II Standard Pa.Pract. § 69:13.

Section 5525 of the Judicial Code, upon which appellant relies in support of his argument that the instant proceeding is time barred, provides, in relevant part:

§ 5525. Four year limitation
The following actions and proceedings must be commenced within four years:
(1) An action upon a contract, under seal or otherwise, for the sale, construction or furnishing of tangible personal property or fixtures.
(2) Any action subject to 13 Pa.C.S. § 2725 (relating to statute of limitations in contracts for sale).
(3) An action upon an express contract not founded upon an instrument in writing.
(4) An action upon a contract implied in law, except an action subject to another limitation specified in this sub-chapter.
(5) An action upon a judgment or decree of any court of the United States or of any state.
(6) An action upon any official bond of a public official, officer or employee.
(7) An action upon a negotiable or nonnegotiable bond, note or other similar instrument in writing. Where such an instrument is payable upon demand, the time within which an action on it must be commenced shall be computed from the later of either demand or any payment of principal of or interest on the instrument.-
(8) An action upon a contract, obligation or liability founded upon a writing not specified in paragraph (7), under seal or otherwise, except an action subject to another limitation specified in this subchapter.

42 Pa.C.S. § 5525 (emphasis supplied throughout).

The trial court, focusing solely upon the absence of the word “proceeding” in subsection 5, concluded that Section 5525(5) is applicable to actions on foreign judgments but not to “proceedings” to register foreign judgments pursuant to the UEF-JA. This conclusion, however, results in an anomalous situation: Where the judgment creditor proceeds with an action on the foreign judgment, the judgment creditor is afforded a four-year statute of limitations whereas when the judgment creditor proceeds under the “simplistic and systematic” procedure provided by the UEFJA, the judgment creditor enjoys a six-year statute of limitations.

The trial court reasoned that a proceeding to register a foreign judgment under the UEFJA was a “proceeding which is neither subject to another limitation specified in this sub-chapter nor excluded from the application of a period of limitation by Section 5531 ...”, 42 Pa.C.S. § 5527, and thus was subject to the catch-all provisions of the six-year statute of limitations.

Pursuant to Section 5521(b) of the Judicial Code, Pennsylvania law, rather than New York law, controls the resolution of the issue of the applicable statute of limitations:

Pennsylvania statutory law provides that for claims accruing outside of Pennsylvania, the period of limitations shall be prescribed by the limitations period of the place where the claim accrued or by the law of Pennsylvania, whichever is shorter. 42 Pa.C.S. § 5521(b);[] Gwaltney v. Stone, 387 Pa.Super. 492, 501, 564 A.2d 498, 503 (1989). Under the terms of the “borrowing statute”, since the Pennsylvania Statute provides for the shorter period of time to bring a claim after accrual, the court was correct in holding that the Pennsylvania statute of limitations applied.
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The long-standing rule of Pennsylvania is that the law of the forum determines the time within which a cause of action shall be commenced. Freeman v. Lawton, 353 Pa. 613, 46 A.2d 205 (1946); AAMCO Transmissions, Inc., 759 F.Supp. 1141 (E.D.Pa.1991). This rule has not been changed despite the adoption of the significant contacts/interest analysis on substantive choice of law matters by the supreme court in Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). Cistone v. Ford Motor Company, 504 F.Supp. 328 (E.D.Pa.1980). Rather, the proper source of analysis is the terms of the borrowing statute at 42 Pa.C.S. § 5521.

Unisys Finance Corporation v. U.S. Vision, Inc., 428 Pa.Super. 107, 110-12, 630 A.2d 55, 57-58 (1993) (footnote omitted) (emphasis supplied). Accord: Sun Oil Co. v. Wortman, 486 U.S. 717, 722, 108 S.Ct. 2117, 2121, 100 L.Ed.2d 743 (1988); Hamilton v. Seattle Marine and Fishing Supply, 562 P.2d 333, 337 (Alaska, 1977); Johnson Brothers Wholesale Liquor v. Clemmons, 233 Kan. 405, 661 P.2d 1242,1245 (1983). While appellee concedes that Pennsylvania law controls the resolution of the limitations issue, appellee argues that the 4-year statute expressly applicable to actions on foreign judgments is not applicable to UEFJA proceedings. We, however, are unable to discern any basis upon which to hold that there should be two different statute of limitation periods applicable to creditors’ attempts to enforce judgments rendered in foreign states.

The requirement of Article IV, Section 1 of the United States Constitution, that full faith and credit be given in each state to judicial proceedings in other states and the federal courts, precludes retrial in the Pennsylvania courts of the validity of a foreign judgment “except for the limited purpose of determining whether the transferor court had jurisdiction to enter the judgment and whether the judgment was obtained without derogating the judgment debtor’s due process rights”. Tronagun Corporation v. Mizerock, 820 F.Supp. 225, 227 (W.D.Pa.1993). Accord: Commonwealth Capital v. Franklin Square, 423 Pa.Super. 149, 152, 620 A.2d 1154, 1156 (1993); Tandy Computer Leasing v. DeMarco, supra at 131, 564 A.2d at 1301.

A foreign judgement cannot be stricken or opened simply because the party seeking to open or strike can demonstrate that he/she would have a valid defense to the action if brought in Pennsylvania. Only those defenses, like a lack of personal jurisdiction by the rendering court, which destroy the full faith and credit obligation may form the ground for refusing that judgment full faith and credit. Morris Lapidus [v. Airportels, Inc.], 240 Pa.Super. [80] at 85-87, 361 A.2d [660] at 664.

Tandy Computer Leasing v. DeMarco, supra at 133, 564 A.2d at 1302.

Thus, regardless of whether the judgment creditor utilizes the streamlined procedure of the UEFJA or proceeds with a civil action on the foreign judgment, there may be no inquiry into the merits of the original cause of action, since the only issues under either procedure are the validity and the amount of the judgment. The major difference between the two proceedings is that the judgment becomes a lien as of the date of filing under the UEFJA, 42 Pa.C.S. § 4306(b), while in the civil action on the foreign judgment, the judgment does not become a lien until the conclusion of the action. However essentially dissimilar the two procedures for domesticating the foreign judgment, the effect of the judgments obtained is identical. Thus, there would appear to be no logical basis upon which to impose two different periods of limitations.

The Kansas Court of Appeals, applying remarkably similar statutes in Alexander Construction Co. v. Weaver, 3 Kan. App.2d 298, 594 P.2d 248 (1979), ordered stricken a 1968 Colorado money judgment which had been filed in Kansas in 1977 pursuant to the Kansas Uniform Enforcement of Foreign Judgments Act. The Kansas court held that the Colorado judgment had to be filed and “acted upon by enforcement proceedings within the period of limitations as provided by [the Kansas 5-year statute applicable to all judgments]”:

The Uniform Enforcement of Foreign Judgments Act was instituted to provide a more effective and efficient time-saving procedure for the enforcement of judgments obtained in foreign jurisdictions. Our adoption of this Act does not extinguish the judgment creditor’s right to bring or file an action to enforce his foreign judgment in this state. K.S.A. 60-3006. It is merely another method available to the judgment creditor. The statute of limitations applicable to enforcement of a foreign judgment in Kansas should be the same regardless of which of these methods of enforcement is chosen by the judgment creditor.
Hí Hs H* H* Hs H*
The Kansas cases prior to the enactment of the Uniform Enforcement of Foreign Judgments Act adhere to the principle that the law of the forum shall apply to determine the statute of limitations for enforcement of foreign judgments. Green v. Kensinger, 199 Kan. 220, 223, 429 P.2d 95 (1967); Leonard v. Kleitz, 155 Kan. 626, Syl. ¶2, 127 P.2d 421 (1942). K.S.A. 60-511(5), like its predecessor G.S.1949, 60-306 Sixth, provides a five-year limitations period for actions to enforce foreign judgments in Kansas today. K.S.A. 60-516 provides a potentially shorter time period for suits on a foreign cause of action. Foreign judgments, although valid in the state of rendition, are nevertheless subject to the limitations prescribed by K.S.A. 60-511(5) and 60-516.
Once the foreign judgment has been filed in accord with the Uniform Enforcement of Foreign Judgments Act now applicable in Kansas, that foreign judgment shall have the same force and effect for enforcement as a domestic judgment under K.S.A. 60-2403 and 60-2404. The same result would also be mandated where a suit was filed on a foreign judgment rather than merely registered under the Uniform Act.

Alexander Construction Co. v. Weaver, 3 Kan.App.2d 298, 300-01, 594 P.2d 248, 250-251 (1979) (emphasis supplied).

Since we find no basis upon which to exclude proceedings under the UEFJA from the express provisions of Section 5525(5), we are constrained to reverse and remand for the entry of an order striking the foreign judgment.

Order reversed. Case remanded. Jurisdiction relinquished.

      . The litigation which was the subject of review by the Cohen Court was subject to the former statute and thus the Cohen Court did not comment on the effect of the new limitations period provided by 42 Pa.C.S. § 5525(5).

      . Commonwealth Capital v. Franklin Square, 423 Pa.Super. 149, 152, 620 A.2d 1154, 1156 (1993).

      . The trial court noted that an action on the judgment "entails a variety of detailed steps, subject to the Pennsylvania Rules of Civil Procedure, which develop and refine issues of law and of fact which are ultimately resolved by the court. Only after a resolution, that is an award of a judgment, may a party request that the judgment become a lien. Particularly, the provisions of Section 4306(b) differ from an action in that: the applicable notice requirements are considerably less stringent than those for an action; there are no pleadings or preliminary objections as in an action; there is no hearing at which issues of fact and law are resolved; and there are no post-trial motions available when a judgment creditor proceeds pursuant to the UEFJA”. Despite recognizing that there are less safeguards provided to the debtor under the UEFJA than when proceeding with a civil action on a foreign judgment, the court determined that the legislature intended to provide a longer statute of limitations for proceedings under the UEFJA.

      . Section 5521 of the Judicial Code provides:
      § 5521. Limitations on foreign claims
      (a) Short title of section. — This section shall be known and be cited as the "Uniform Statute of Limitations on Foreign Claims Act.”
      (b) General rule. — The period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim.

      (c) Definition. — As used in this section "claim” means any right of action which may be asserted in a civil action or proceeding and includes, but is not limited to, a right of action created by statute.
      42 Pa.C.S. § 5521 (emphasis supplied).


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    651 A.2d 1117
    COMMONWEALTH of Pennsylvania v. Darren BIVENS, a/k/a Shannon R. Hamilton, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1994.
    Filed Dec. 20, 1994.

      Robert M. Maskrey, Stroudsburg, for appellant.
    James P. Gregor, Dist. Atty., Stroudsburg, for Commonwealth, appellee.
    Before POPOVICH, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

In this appeal, we are asked to determine whether it was proper for the trial court to consider a prior out-of-state conviction for simple possession of marijuana as an enhancement factor when imposing sentence for possession of a controlled substance, 35 P.S. § 780-113(a)(16). We conclude that the prior out-of-state conviction could not be considered as an enhancement factor under 35 P.S. § 780-113(b) or 35 P.S. § 780-115, and, therefore, the sentence imposed exceeds the statutorily authorized maximum. Accordingly, we vacate the judgment of sentence and remand this matter for resentencing.

Darren Bivens (Bivens), a/k/a Shannon R. Hamilton, appeals from the judgment of sentence imposed after he pled guilty to possession of a controlled substance (cocaine). Bivens previously had been convicted of possession of marijuana in Florida. The trial court, taking into account Bivens’ prior Florida conviction, sentenced him to a term of imprisonment of 11% to 23 months. Bivens filed a Motion to Reconsider and Modify Sentence. Following a hearing, the trial court denied Bivens’ motion. Bivens now appeals.

Bivens argues that the court erred when it considered his prior Florida conviction as an enhancement factor in sentencing him for possession of cocaine. Bivens contends that the improper consideration of the prior conviction resulted in the imposition of a sentence that exceeds the statutorily authorized maximum.

Sentencing is a matter vested within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Martin, 416 Pa.Super. 507, 611 A.2d 731 (1992). To constitute an abuse of discretion, a sentence must either exceed the statutory limits or be patently excessive. Id.

Pursuant to 35 P.S. § 780-113(b) of the Controlled Substance, Drug, Device and Cosmetic Act (the Act), persons convicted of simple possession of a controlled substance shall be sentenced to a term of imprisonment not exceeding one year. Clearly, Bivens’ sentence exceeds one year. However, § 780-113(b) also provides that, “if the violation is committed after a prior conviction of such person for a violation of this act under this section has become final, such person shall be sentenced to imprisonment not exceeding three years.... ” (Emphasis added). Bivens asserts that, under § 780-113(b), only convictions for violations of the Act under § 780-113 may be considered for sentence-enhancement purposes. We agree. When construing a statute, we are guided by the principle that its words are to be given their plain meaning. 1 Pa.C.S. § 1903; see also Commonwealth v. Neckerauer, 421 Pa.Super. 255, 617 A.2d 1281 (1992). Moreover, penal statutes must be strictly construed in favor of the accused. 1 Pa.C.S. § 1928(b)(1); see also Neckerauer. In light of these principles, we conclude that Bivens’ prior Florida conviction could not be used to enhance punishment under § 780-113(b) because it was not a conviction for a violation of § 780-113.

Nevertheless, the trial court justified Bivens’ sentence on the basis of 35 P.S. § 780-115(a), which provides, in pertinent part:

(a) Any person convicted of a second or subsequent offense under clause (30) of subsection (a) of section 13 of this act or of a similar offense under any statute of the United States or of any state, may be imprisoned for a term up to twice the term otherwise authorized.... [Emphasis added].

Section 13(a)(30) of the Act makes it illegal to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. Bivens has never been convicted of violating § 13(a)(30). Thus, we must determine whether Bivens’ prior Florida conviction for simple possession of marijuana is an offense “similar” to the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance under § 13(a)(30).

The Commonwealth contends that, because possession of a controlled substance necessarily is an included element of possession with intent to deliver, Commonwealth v. Swavely, 382 Pa.Super. 59, 554 A.2d 946 (1989), appeal denied, 524 Pa. 619, 571 A,2d 382 (1989), the crimes are “similar” for purposes of applying the enhancement provision. We reject this contention because, as previously stated, penal statutes must be strictly construed in favor of the accused, and the statute reads “similar,” not “lesser included.”

Further, the Commonwealth argues that the legislature clearly intended heightened punishment for repeat drug offenders. However, “[w]here certain things are specifically designated in a statute, all omissions should be understood as exclusions.” Commonwealth v. Reeb, 406 Pa.Super. 28, 33, 593 A.2d 853, 855 (1991), appeal denied, 530 Pa. 665, 610 A.2d 45 (1992). Thus, the conclusion may be drawn that, had the legislature intended to enhance the punishment for persons previously convicted of mere possession of a controlled substance, possession would have been included among the offenses listed in § 780-115. Accordingly, we are unable to find that possession of a controlled substance, and the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance are “similar offenses” for purposes of applying the enhancement provision of § 780-115. As a result, we conclude that the trial court improperly considered Bivens’ prior Florida conviction as an enhancement factor.

Based upon the foregoing, we vacate the judgment of sentence and remand this matter for resentencing.

Judgment of Sentence VACATED.

Case REMANDED for resentencing.

POPOVICH, J., concurs in the result.


author: OLSZEWSKI, Judge:

text:
    651 A.2d 1119
    KEN R., on behalf of His Daughter, C.R., Appellant, v. ARTHUR Z. and Mary Jane Z., Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1994.
    Filed Dec. 23, 1994.

      Daylin B. Leach, Allentown, for appellant.
    Elissa J. Griffith, Allentown, for appellees.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

Ken R. and Mary Jane Z. were divorced in 1981. Mary Jane took custody of the couple’s minor child, C.R. Subsequently, Mary Jane married Arthur Z. and the new couple had two daughters, Heather and Alison.

C.R. lived with her mother, stepfather, and two half-sisters until October 1993 when she accused her stepfather of sexual molestation. While Arthur Z. denied the charge, the parties agreed upon a Protection from Abuse Order which sent C.R. to live with her father, Ken R.

Mary Jane Z. did not believe C.R.’s allegations against Arthur Z., and the incident caused a great deal of friction between mother and daughter. Since this incident, Mary Jane Z. has refused to allow C.R. to see her two half-sisters.

In November 1993, appellant Ken R., on behalf of his daughter C.R., sued for visitation rights as to Heather and Alison. C.R. alleges that she and her half-sisters had developed a very close relationship prior to the incident that forced her to leave her mother and stepfather’s household. Appellees Mary Jane and Arthur Z. filed a response alleging that C.R. lacks standing to bring this visitation action. The trial court agreed and the complaint was dismissed. This appeal followed.

The question before us is whether a minor child has standing to sue for visitation privileges as to her half-sisters. The trial , court ruled that in the absence of statutory authority conferring such a right on a sibling, there was no standing. We are constrained to agree.

In third-party suits for visitation or partial custody, the test of standing is a stringent one. See Jackson v. Garland, 424 Pa.Super. 378, 382, 622 A.2d 969, 971 (1993); Weber v. Weber, 362 Pa.Super. 262, 262-66, 524 A.2d 498, 498-99 (1987), appeal dismissed, 517 Pa. 458, 538 A.2d 494 (1988); Herron v. Seizak, 321 Pa.Super. 466, 469, 468 A.2d 803, 805 (1983). The strict requirement for standing has grown out of a respect for the traditionally strong right of parents to raise their children as they see fit. E.g., Weber, 362 Pa.Super. at 262-66, 524 A.2d at 498-99. “The right to raise one’s children has long been recognized as one of our basic civil rights. Freedom of personal choice in matters of family life, and the concomitant freedom from unwarranted governmental intrusion, is a fundamental liberty interest protected by the Fourteenth Amendment.” Id. (citations omitted).

In recognition of this strong parental right, courts have generally found standing in third-party visitation and custody cases only where the legislature has specifically authorized the cause of action. Jackson, 424 Pa.Super. at 382, 622 A.2d at 971 (holding that maternal aunt lacked standing to seek partial custody of her deceased sister’s minor child in the absence of statutory authority); Weber, 362 Pa.Super. at 264, 524 A.2d at 499 (holding that adult sibling lacked standing to seek partial custody of her minor sibling in the absence of statutory authority); He'tron, 321 Pa.Super. at 805, 468 A.2d at 805 (holding that grandparents lacked standing to sue for visitation because case did not fall under one of three circumstances in which the statute provides grandparents with rights to sue). In the absence of legislation, courts have been unwilling to intervene, casting the issue as one of interference in family matters by individuals with no legal rights at issue. E.g., Jackson, 424 Pa.Super. at 971, 622 A.2d at 971. See also In re C.F., 436 Pa.Super. 83, 647 A.2d 253 (1994) (trial court could not compel parents to produce minor daughter for visitation with her minor sibling absent statutory authority justifying the interference). Therefore, the question becomes whether, in the absence of statutory authority, appellant has nonetheless alleged a legal right sufficient to justify interference with a family decision.

In a very similar case, this Court answered that question in the negative. Weber, 362 Pa.Super. at 264, 524 A.2d at 499. In Weber, an adult sibling sought partial custody of her minor sister after the parents of both girls refused to allow unsupervised visits. Id. Based on the strength of the parents’ right to decide how to raise their children, and the lack of statutory authority allowing a court to intervene, this Court held that the adult sibling lacked standing to sue for partial custody. Id. The Court believed that it should refuse to “intervene in this family matter in which no legal rights are at issue.” Id. (citing Herron, 321 Pa.Super. at 469, 468 A.2d at 805). Therefore, the sibling relationship, by itself, failed to give rise to a legal right to sue for partial custody or visitation of a minor child when both parents were united against the requested visitation. Id.

We are bound by the decision in Weber. In the present case, Mary Jane and Arthur Z., both living with their daughters Heather and Alison, have the right to decide how to raise their children. They have the right to decide whether or not their children should be exposed to certain people and influences. As noted in Weber, the parents’ decision not to allow sibling visitation may not be wise, but it is their decision to make. The legislature has not given siblings the statutory authority to interfere with that decision, and C.R. does not have a legal right to interfere in the absence of statutory authority. Therefore, we hold, as we did in Weber, that a sibling lacks standing to maintain a partial custody or visitation action against both parents of a minor sibling.

While we are constrained to decide this case against C.R., this decision should not be interpreted as lowering the value that we place on sibling relationships. The importance of sibling relationships is well established in Pennsylvania. E.g., In re Davis, 502 Pa. 110, 124, 465 A.2d 614, 621 (1988); Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 325, 421 A.2d 157, 160 (1980); Wiskoski v. Wiskoski, 427 Pa.Super. 531, 535, 629 A.2d 996, 998 (1993), allocatur denied, 536 Pa. 646, 639 A.2d 33 (1994). As Judge Brosky wrote in his concurrence in Weber:

The relationships between siblings should be closely guarded and nurtured, since it is those relationships that will provide a harbor from which a child may find her way through the often turbulent waters of life. While it is true that parents may serve this function as well, we must realize that more often than not, parents predecease their children, creating the situation where siblings must comfort, support
and depend upon each other. Even in less drastic circumstances, because siblings are closer in age and have shared life experiences, it would be quite natural for them to seek each other’s counsel and companionship on routine matters as well.

Weber, 362 Pa.Super. at 266, 524 A.2d at 500 (Brosky, J., concurring). We fully agree with this statement as to the importance of the sibling relationship; however, a moral or a personal interest is not a legal interest. Jackson, 424 Pa.Super. at 382-85, 622 A.2d at 971-72 (“[w]e do not question Jackson’s emotional or personal interest in this matter. Nonetheless, the relevant law centers on the concept of legal interest or standing”) (emphasis in original). We urge the legislature to examine this area of law to see if it warrants passage of a statute that would give a legal interest to siblings to sue for visitation, so as to encourage the development of strong sibling relationships.

Order affirmed.

      . C.R. is now 1Ó years old, Heather is 4, and Alison is 1.

      . In custody-related disputes, “third parties” refers to all persons other than the natural parents. Gradwell v. Strausser, 416 Pa.Super. 118, 121, 610 A.2d 999, 1001 (1992).

      . While Weber dealt with a petition for partial custody and the present action is for visitation, the analysis is the same. The interference with the parental right is less in cases of visitation, but this lesser interference does not transform the interest of the sibling into a cognizable one in the absence of statutory authority.


author: HESTER, Judge: OLSZEWSKI, Judge,

text:
    651 A.2d 1121
    COMMONWEALTH of Pennsylvania, Appellant, v. Tamika ROBINSON.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1994.
    Filed Dec. 28, 1994.

      Dennis C. McAndrews, Asst. Dist. Atty., Media, for Commonwealth, appellant.
    Clinton L. Johnson, Chester, for appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

The Commonwealth appeals from the order entered on March 17, 1994, in the Court of Common Pleas of Delaware County in which the trial court suppressed 308 grams of cocaine seized at appellee’s residence as the result of the execution of an arrest warrant at 1114 Norris Drive in Chester, Pennsylvania. For the reasons which follow, we reverse and remand for further proceedings.

The facts of the case may be summarized as follows. On June 8, 1993, at approximately 7:30 a.m., detectives from the Delaware County Criminal Investigation Division (“CID”) and from the Chester City Police Department attempted to execute an arrest warrant for Keith Robinson at 1114 Norris Drive in Chester, Pennsylvania. CID Detective Joseph Ryan and Chester City Detective Stephen Fox went to the front door of the residence while CID Detective Charles List and Chester Police Officer John Vincenzo went to the rear of the residence. The detectives wore jackets and hats with identifying insignia on them, Detective Ryan’s badge was visible outside of his jacket, and Officer Vincenzo was in uniform. Notes of Testimony (“N.T.”), 3/15/94, at 6, 17. Detectives Ryan and Fox knocked on the front door which was opened by Sharon Robinson. The detectives identified themselves as police officers and indicated they had a warrant for the arrest of Keith Robinson. Ms. Robinson stated Keith was her son, but he was not present at that time. Id. at 17. Detective Ryan asked if he could look through the house, and Ms. Robinson assented.

At that point, a teenage black male walked down the steps from the second floor, made eye-contact with Detective Ryan, turned, and ran upstairs. Detective Ryan followed, heard a door close on the second floor, and attempted to obtain identification from the young man who was standing adjacent to the closed door. Detective Ryan then heard a window open behind the closed door. Fearing that Keith Robinson was fleeing the premises, Ryan opened the door. Inside he saw appellee, who was dressing in the bathroom. He told her to get dressed and come out and shut the door. Detective Ryan resumed trying to obtain identification from the black male.

Meanwhile, Detective Fox also had started up the stairs but was re-called by Detective List and Officer Vincenzo, who had come to the front door from the rear of the premises. Detective List told Detective Fox that while he was standing outside in the rear of the residence, he had observed a window open on the second floor, and two female hands place a brown paper bag on the exterior ledge of the window, and then close the window. Detective Fox went upstairs, observed a black female, appellee, exit the bathroom, and went into the bathroom and retrieved the bag on the window ledge. Upon feeling the bag’s contents, and based upon his twenty-three years of experience, Detective Fox suspected that it contained illegal drugs and opened the bag. The bag later was determined to contain 308 grams of cocaine.

Appellee was charged with possession of a controlled substance, possession with intent to deliver a controlled substance, and possession of drug paraphernalia. She filed a motion to suppress the evidence seized in the brown paper bag, and a hearing on the motion was held on March 15, 1994. On March 17, 1994, the suppression court granted the motion, and this appeal followed.

In conformity with the dictates of Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), the Commonwealth has certified that the suppression court’s order terminates or substantially handicaps its prosecution of appellee. Accordingly, we conclude that the present appeal is properly before us and address the merits.

Our standard for reviewing the suppression of evidence is well established. In Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990), we stated:

Where the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Robinson, 518 Pa. 156, 159-160, 541 A.2d 1387, 1389 (1988), citing, Commonwealth v. Hamlin, 503 Pa. 210, 215-216, 469 A.2d 137, 139 (1983). If the evidence supports the court’s factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986).

The suppression court concluded that police were powerless to seize the brown paper bag appellee concealed outside the window and therefore, suppressed its contents. For the reasons which follow, we are constrained to disagree and reverse.

The sole question presented in this case is whether, under all of the circumstances known to police at the time, probable cause existed to seize the brown paper bag.

Probable cause is a flexible, common-sense standard. As the Supreme Court in Texas v. Brown, [460 U.S. 730, [741,] 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) ] commented:

It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” ... that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, non-technical” probability that incriminating evidence is involved is all that is required.

Commonwealth v. Kendrick, 340 Pa.Super. 563, 570-71, 490 A.2d 923, 927 (1985) (citations omitted).

Sharon Robinson had provided lawful consent to the officers to look through her house. N.T., 3/15/94, at 29, 47. The circumstances known to police at the time are as follows: Police did not have a photograph of Keith Robinson and knew of no identifying characteristics. They knew only that Keith Robinson was a black male and that he was to be arrested for selling cocaine. Id. at 28. When the teenage black male fled up the stairs upon seeing police, police had no idea whether he was Keith Robinson. Upon hearing the bathroom window open behind the closed door, police were unaware whether Keith Robinson was inside, trying to flee the premises. Thus, they were permitted lawfully to open the bathroom door to search for Keith. At that point, the officers in the house learned that the occupant of the bathroom, who appeared to be female, had secreted a paper bag outside of the house on the window ledge. Thus, police were confronted by two options: one, ignore the bag and do nothing, thereby creating a risk that contraband or a weapon would go undetected, or two, retrieve the bag, feel its contents, and if further inquiry was justified, open the bag to view its contents. Based upon the circumstances, we conclude that police reasonably were justified in picking up the bag and feeling it.

Detective Fox described his thought process at the time he observed the bag on the ledge.

I went to the window, opened up the window. I observed the brown bag on the window — just outside the window on the sill. I reached for it and picked it up and felt that it was fairly heavy in weight. And in touching it I could feel like a firm substance inside. It wasn’t really hard like a metal object or a brick or a rock of some type, but it was firm and kind of crumbly. It was my opinion at that time that it was narcotics inside. Id. at 32-33. The defense previously had stipulated to Detective Fox’s expertise in the area of narcotics investigation. Id. at 26. Moreover, it is firmly established in federal and Pennsylvania law that an officer’s sense of touch can, as here, provide the facts necessary to establish probable cause. Minnesota v. Dickerson, — U.S. -, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Commonwealth v. Johnson, 429 Pa.Super. 158, 631 A.2d 1335 (1993). Once Detective Fox was able to feel the contents of the brown bag and determine, through his extensive experience, that it likely contained narcotics, he was justified in effectuating a full seizure of the bag and in examining its contents.

In his treatise on the Fourth Amendment, Professor Wayne LaFave discusses the experience and expertise of an officer in the determination of probable cause. LaFave emphasizes, through reference to United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), People v. Symmonds, 18 Ill.App.3d 587, 310 N.E.2d 208 (1974), and United States v. Davis, 458 F.2d 819 (D.C.Cir.1972):

[W]hat constitutes “probable cause” for searches and seizures must be determined from the standpoint of the officer, with his skills and knowledge, rather than from the standpoint of an average citizen under similar circumstances. That is, probable cause “is to be viewed from the vantage point of a prudent, reasonable, cautious police officer.... guided by his experience and training.” The Supreme Court has made it clear that the expertise and experience of the officer are to be taken into account in applying the Fourth Amendment probable cause test. This is as it should be, for there “would be little merit in securing able, trained men to guard the public peace” if their actions were to be “measured by what might be probable cause to an untrained civilian”.

W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 570-71 (2d ed. 1987). Pennsylvania law, likewise, focuses upon the experience of police officers in determining the existence of probable cause.

[PJrobable cause exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing the suspect has committed or is committing a crime. In determining whether probable cause existed in a particular situation a court will look not just at one or two individual factors, but will consider the “totality of the circumstances” as they appeared to the arresting officer:

When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element. We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might. Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent persons act.

Commonwealth v. Burnside, 425 Pa.Super. 425, 430, 625 A.2d 678, 681 (1993) (emphasis in original), quoting Commonwealth v. Quiles, 422 Pa.Super. 153, 167, 619 A.2d 291, 298 (1993) (en banc).

Thus, we conclude that under all of the circumstances of this case, police herein had an obligation to further investigate the bag secreted outside of the bathroom window. It is abundantly clear that Detective Fox possessed at the very least, articulable suspicion that the bag contained contraband.

The within fact situation, while occurring in a different setting, is quite similar to Commonwealth v. Moms, 422 Pa.Super. 343, 619 A.2d 709 (1992). In Moms, the defendant was stopped for a motor vehicle violation. As the police officer approached, he observed Morris attempting to hide a brown paper bag under the seat. The officer seized the bag, opened it, and determined that it contained cocaine. While Moms involved the interpretation and applicability of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), our reasoning in Morris is applicable to the facts herein. In determining that police acted reasonably in Morris, once they saw the defendant attempt to secrete the brown paper bag under the seat, this court stated, “The officer’s observation of Morris’s actions created more than a mere guess; his observations supported a genuine belief that his safety was in jeopardy and, at the very least, articulable suspicion that the bag contained contraband ...” Commonwealth v. Morris, supra, 422 Pa.Super. at 350, 619 A.2d at 712-13.

In the instant case, once reasonable suspicion existed, Detective Fox was justified in assuming control of the bag. Id.; United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983) (“[Wjhere the authorities possess specific and articulable facts warranting a reasonable belief that a traveler’s luggage contains narcotics, the governmental interest in seizing the luggage briefly to pursue further investigation is substantial”); Commonwealth v. Davidson, 389 Pa.Super. 166, 566 A.2d 897 (1989) (police justified in opening purse of companion arrested for drug offenses where woman appeared concerned about purse’s contents).

As we stated in Commonwealth v. Mallory, 418 Pa.Super. 614, 623, 614 A.2d 1174, 1179 (1992) (citation omitted):

It is the “probability” of criminal activity and not its “certainty” which is the measuring rod against which the totality of the circumstances confronting the police are to be weighed in determining the presence of probable cause....
We find that the facts, when viewed in toto, painted a “picture of probable cause” ... To do otherwise would be to take a myopic view of the facts and render a decision totally devoid of common sensical inferences to be drawn by trained police officers with regard to drug activity.

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

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting.

I agree with the majority’s insightful analysis and conclusion that the police did in fact have probable cause to believe that the brown paper bag contained drugs. I must, however, disagree with the majority’s statement that this is the sole question presented on appeal. The next question which we must logically address is what should the police have done next: searched the bag immediately, as they did, or first procured a warrant and then searched the bag?

Since the suppression court concluded that the police lacked probable cause to search the bag, it never reached this purely legal question. Now that we have decided that there was probable cause, we must determine what the officers’ next step should have been. The bag was in a house, the police had no search warrant or consent, and there were no exigent circumstances. Could the police immediately open the bag and examine its contents? The answer is clearly no.

A home and its contents are surrounded by the highest expectation of privacy our law recognizes. Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 1381-1382, 63 L.Ed.2d 639 (1980) (discussing the sanctity of the home); Commonwealth v. Edmunds, 526 Pa. 374, 395-97, 586 A.2d 887, 898-899 (1991) (Pennsylvania Constitution accords even greater weight to privacy interests than federal constitution). This expectation acts as a sort of force field which the police cannot penetrate without a warrant, or a proper exception to the warrant requirement. Payton, supra; see also Commonwealth v. Roland, 535 Pa. 595, 597, 637 A.2d 269, 270 (1994). While probable cause alone might suffice in an automobile search, see, e.g., Commonwealth v. Morris, supra 422 Pa.Super. at 343, 619 A.2d 709, the police needed a warrant to see what Tamika Robinson kept in closed containers in her Chester home.

The majority correctly notes that when the police have an articulable suspicion that something contains drugs, they may be justified in briefly seizing it while they investigate further or obtain a warrant. United States v. Place, supra 462 U.S. 696, 103 S.Ct. 2637 (police properly detained passenger and luggage based on articulable suspicion that the passenger was carrying drugs). But detaining the bag is one thing; searching it is another.

Here, the Commonwealth could have detained Tamika Robinson and the bag while one of them went to a magistrate to obtain a warrant. If a neutral and detached magistrate agreed that the incriminating circumstances surrounding the discovery of the bag constituted probable cause, then the magistrate would issue a warrant and the police could properly open the bag and examine it. If the magistrate disagreed, then the police would have to respect Ms. Robinson’s privacy rights. While the trip to a magistrate may be annoying, especially when the police feel certain about what they will discover, it is still required by the Fourth Amendment and by Article I, Section 8 of the Pennsylvania Constitution.

The record shows that the Commonwealth realized this problem at the suppression hearing, and argued that getting a warrant first was unreasonable under the circumstances because by looking in the bag, the officer would only be “confirming what he already knows.” N.T. 3/15/94 at 63. Of course, the officer did not know for certain that the bag contained drugs — he only had a strong and well-supported suspicion which we have held constituted probable cause. The Commonwealth should remember that the further step of confirming this suspicion with a magistrate is not unreasonable, but a constitutional mandate. Rather, it is searching a home without a warrant which is presumptively unreasonable. Roland, supra.

I would also note that the “plain feel” doctrine has no application in this case. Plain feel has recently emerged as an analogy to the plain view doctrine, under which police may seize contraband in plain view from a lawful vantage point without first procuring a warrant. Minnesota v. Dickerson, supra, — U.S. at-, 113 S.Ct. at 2136, 124 L.Ed.2d at 345. If any further search is needed to confirm the object’s incriminating character, plain view will not apply. Id. (citing Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (moving a stereo to look at its serial number was a search, and precluded application of the plain view doctrine)). To deliberately pick something up and feel it is every bit as much of a search as moving an object to get a better view.

Moreover, just as plain view requires the police to lawfully be in a position to view the object, plain feel requires the same lawful access. Minnesota v. Dickerson, supra at-, 113 S.Ct. at 2137, 124 L.Ed.2d at 346. This is .why the only plain feel cases we have seen, and are likely ever to see, have stemmed from Terry stop-and-frisk situations. Id.; accord, Commonwealth v. Johnson, supra 429 Pa.Super. 158, 631 A.2d 1335. Even if they are lawfully in a home, the police may not go feeling around for contraband any more than they may look for it in closed containers, drawers and cabinets; that is, not without a warrant or a proper warrant exception.

In sum, although I agree with the majority that the police had probable cause to search the bag, I would also hold that their failure to procure a warrant before searching it rendered the search illegal. I would therefore affirm the lower court’s suppression order.

      . At the suppression hearing, Sharon Robinson testified that Keith Robinson was her nephew. N.T., 3/15/94, at 47.

      . We do not characterize Detective Fox’s actions as "feeling around for contraband” as suggested by the dissent. See Dissenting Opinion at 1127.

      . The dissent argues that police were obligated to detain the occupants of the house and seek a search warrant in order to examine the contents of the paper bag. We believe that the police acted reasonably under the totality of circumstances present in this case. As acknowledged by the dissent, See Dissenting Opinion at 1127 n. 2, the issue concerning the lack of a search warrant for the paper bag was not raised or discussed by either the Commonwealth or the appellee on appeal to this court. Moreover, the defendant's position at the suppression hearing focused solely upon whether the police had probable cause to seize the bag. See defense counsel's summation, N.T., 3/15/94, at 66 (“It was a warrantless search, without a warrant, and without sufficient probable cause to conduct the search”).

      . The police had an arrest warrant for Keith Robinson, but as defense counsel established at the hearing, the police could not expect to find Mr. Robinson inside the paper bag. N.T. 3/15/94 at 39. The suppression court specifically found that Ms. Robinson had given the police consent only to search for Keith Robinson, and not to search her house generally. Opinion, 4/5/94 at 1.

      . The Commonwealth does not address the warrant problem in its brief, focusing all its energy on the probable cause issue. Sadly, Ms. Robinson’s brief is equally silent on the warrantless aspect of this search.

      . The majority states that the feel of the bag helped establish probable cause. I would hold that probable cause was sufficiently established before Detective Fox felt the bag’s contents.


author: WIEAND, Judge:

text:
    651 A.2d 1127
    COMMONWEALTH of Pennsylvania v. Darryl F. WASHINGTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1994.
    Filed Dec. 29, 1994.

      John P. McBlain, Media, for appellant.
    William R. Toal, III, Asst. Dist. Atty., Havertown, for Commonwealth, appellee.
    Before WIEAND, McEWEN and SAYLOR, JJ.
   WIEAND, Judge:

Darryl F. Washington was tried by jury and was found guilty of possession of a controlled substance, possession of a controlled substance with intent to deliver and possession of drug paraphernalia. Post-trial motions were denied, and Washington was sentenced to serve an aggregate term of imprisonment for not less than eight (8) months nor more than forty-two (42) months. On direct appeal from the judgment of sentence, Washington argues that: (1) the cocaine seized by police from his vehicle should have been suppressed because there was neither probable cause nor exigent circumstances to justify a warrantless search, nor did he voluntarily give consent for the police to search the vehicle; (2) any incriminating statements which he made to police should have been suppressed because he was not given prior Miranda warnings; and (3) the trial court erred by refusing to order disclosure of the identity of the confidential informant who had provided information to police. After careful review, we affirm the judgment of sentence.

In reviewing the ruling of a suppression court, this Court:

‘must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole,- remains'uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.’

Commonwealth v. Whitney, 511 Pa. 232, 239-240, 512 A.2d 1152, 1156 (1986), quoting Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).

So viewed, the evidence introduced at appellant’s suppression hearing was summarized in the trial court’s post-trial opinion as follows:

On the evening of April 3,1992, Officer Richard Gibney of the Darby Borough Police Department was conducting a routine surveillance of Cook’s Bar, known to be an area of high drug activity in the borough. The officer recognized defendant from prior contact with him at the same location. As the result of Officer Gibney’s habit of checking the active warrant list in the police station every few days, he realized Mr. Washington had outstanding warrants. The record does not reflect for what offenses these warrants were issued. Officer Gibney also had two-day old information from a reliable, confidential informant that defendant was once again transporting illegal drugs by vehicle through Darby Borough. Further, Officer Gibney knew that defendant had a federal civil rights action pending against numerous Darby Borough police officers. (That action has now been resolved in favor of the police officers.)
Officer Gibney noticed defendant exit Cook’s Bar, enter an automobile and drive away. He pursued defendant and defendant stopped the car several blocks away from Cook’s Bar. During pursuit, Officer Gibney observed defendant toss an object into the back seat of the car he was driving. Also during pursuit, Officer Gibney radioed his backup, Officer Daryl Guy of the Darby Borough Police Department, for assistance during the stop.
Once defendant stopped his car, he got out and spoke to Officer Gibney demanding to know what this was all about. Officer Gibney informed him that he had outstanding warrants and that he was the suspect of an active drug investigation due to information the police had recently received. By this time, Officer Guy had arrived at the scene and overheard defendant say, “Well, search me, search my car. I don’t care. I don’t have anything.” Both officers testified that this was the gist of what defendant yelled in a state of rage when, in response to defendant’s question, the officers told him he was being stopped for outstanding warrants and narcotics investigation. Officer Gibney advised defendant that he was under arrest for the outstanding warrants. Previously, Officer Gibney had informed Officer Guy that he observed defendant toss an object into the back seat. Officer Guy searched the car and found a small plastic car with a brown bag protruding from it on the back seat. Officer Guy inspected the plastic car and removed the paper bag from inside it. The paper bag contained forty-five vials of a controlled substance. Subsequent laboratory testing confirmed the vials contained cocaine.
According to both officers, once defendant observed Officer Guy locate the vials, he blurted out words to the effect, “I’m just trying to help my kid. I’m just trying to support my kid.” Both officers also testified that nothing was done or said to elicit this incriminating statement from defendant.

Trial Court Opinion at pp. 2-3. Based upon these facts, the trial court concluded that appellant had voluntarily consented to the search of his vehicle.

“Where the driver of a vehicle is arrested pursuant to a warrant, the validity of a warrantless search of the automobile depends upon the officer’s reasonable belief, i.e., probable cause, that its contents offend the law. The right to arrest alone does not determine the permissibility of the search.” Commonwealth v. Mason, 427 Pa.Super. 243, 254, 628 A.2d 1141, 1147 (1993). However, “one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-2044, 36 L.Ed.2d 854, 858 (1973). With respect thereto, the Superior Court has observed:

It is well settled that if a person voluntarily consents to a search, evidence found as a result of that search is admissible against him. See: Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). See also: Commonwealth v. Latshaw, 481 Pa. 298, 303, 392 A.2d 1301, 1304 (1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979); Commonwealth v. Boyer, 455 Pa. 283, 286, 314 A.2d 317, 318 (1974); Commonwealth v. Walsh, 314 Pa.Super. 65, 73, 460 A.2d 767, 771 (1983). The consent, however, must be “given freely, specifically, unequivocally, and voluntarily.” Commonwealth v. Mamon, 449 Pa. 249, 255, 297 A.2d 471, 475 (1972). See also: Commonwealth v. Harris, 429 Pa. 215, 221, 239 A.2d 290, 293 (1968); Commonwealth v. Lowery, 305 Pa.Super. 66, 74, 451 A.2d 245, 248-249 (1982). “[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, supra, 412 U.S. at 227, 93 S.Ct. at 2047-2048, 36 L.Ed.2d at 862-863. See also: Commonwealth v. Hubbard, 472 Pa. 259, 274-275, 372 A.2d 687, 693-694 (1977); Commonwealth v. Smagala, 383 Pa.Super. 466, 474, 557 A.2d 347, 350 (1989); Commonwealth v. Elliott, 376 Pa.Super. 536, 553, 546 A.2d 654, 662 (1988). The burden of proving a valid consent to search rests upon the Commonwealth. Commonwealth v. Griffin, 232 Pa.Super. 163, 167-168, 336 A.2d 419, 421 (1975). See also: United States v. Sebetich, 776 F.2d 412, 424 (3d Cir.1985), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988); Commonwealth v. Woods, 240 Pa.Super. 72, 75, 368 A.2d 304, 306 (1976); Commonwealth v. Tribblett, 242 Pa.Super. 164, 167, 363 A.2d 1212, 1213 (1976).

Commonwealth v. Bagley, 408 Pa.Super. 188, 201, 596 A.2d 811, 817 (1991), cert. denied, — U.S.-, 113 S.Ct. 606, 121 L.Ed.2d 541 (1992).

The fact that a defendant has been placed under arrest and that he has not been informed of his constitutional rights, although factors which must be considered, do not constitute per se a barrier to a finding that consent to search was voluntarily given. See: Commonwealth v. Mason, supra 427 Pa.Super. at 256, 628 A.2d at 1148; Commonwealth v. Danforth, 395 Pa.Super. 1, 19-21 and n. 11, 576 A.2d 1013, 1022-1023 and n. 11 (1990) (en banc), affirmed, 532 Pa. 152, 615 A.2d 308 (1992); Commonwealth v. Mancini, 340 Pa.Super. 592, 603-604, 490 A.2d 1377, 1383-1384 (1985). See also: United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598, 609 (1976) '(“[T]he fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.”). “The question of whether an arrested individual has voluntarily consented to a search ‘is one of fact which must be determined in each case from the totality of the circumstances.’ ” Commonwealth v. Elliott, 376 Pa.Super. 536, 553, 546 A.2d 654, 662 (1988), quoting Commonwealth v. Walsh, 314 Pa.Super. 65, 74, 460 A.2d 767, 771 (1983).

In the instant case, upon being stopped by police, appellant inquired as to the reason for his being stopped. When told that there were warrants outstanding for his arrest and that he was the subject of a drug investigation, appellant angrily told the police that they could search his vehicle. There was no request by police to conduct a search, nor is there any evidence that appellant was coerced in any way. The police had lawful reason to stop appellant’s vehicle; and, thereafter, they merely responded to appellant’s inquiry as to why he was being detained. Under these circumstances, we agree with the trial court that appellant acted voluntarily when he told police that they could search his vehicle. Therefore, the trial court did not err when it refused to suppress the cocaine seized by police from appellant’s vehicle.

There also is no merit in appellant’s contention that his statements to police should have been suppressed because he was not first warned of his Miranda rights. “Miranda warnings are necessary only on those occasions when a suspect is undergoing actual ‘custodial interrogation.’ ” Commonwealth v. Fento, 363 Pa.Super. 488, 492, 526 A.2d 784, 786 (1987). “ ‘Interrogation’ is police conduct ‘calculated to, expected to, or likely to evoke admission.’ ” Commonwealth v. Brantner, 486 Pa. 518, 527, 406 A.2d 1011, 1016 (1979), quoting Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969). See also: Commonwealth v. Whitehead, 427 Pa.Super. 362, 368, 629 A.2d 142, 145 (1993). “Where there is absent any notion of interrogation, the statement is classified as a volunteered statement, gratuitous and not subject to suppression for lack of warnings.” Commonwealth v. Whitley, 500 Pa. 442, 445, 457 A.2d 507, 508 (1983). See also: Commonwealth v. Boone, 467 Pa. 168, 174-175, 354 A.2d 898, 901 (1975); Commonwealth v. Rodgers, 413 Pa.Super. 498, 518, 605 A.2d 1228,1238 (1992). “It is well settled that a spontaneous utterance, unsolicited by the police, is admissible.” Commonwealth v. Hughes, 536 Pa. 355, 368, 639 A.2d 763, 769-770 (1994). See also: Commonwealth v. Clark, 454 Pa. 329, 335, 311 A.2d 910, 913 (1973).

Instantly, although appellant was in police custody at the time he made statements explaining his possession of the cocaine found in his vehicle, it is clear from the record that his statements were wholly unsolicited and not in response to any police interrogation. Rather, as soon as the police had located the cocaine concealed in a toy plastic car on the back seat of appellant’s vehicle, he immediately volunteered statements explaining that he was only selling the cocaine to help support his child. These statements were not preceded by any police questioning, nor did the police otherwise attempt to elicit an incriminating response from appellant. Thus, because police did not interrogate appellant, they were not required to inform him of his Miranda rights. Gratuitous remarks made by appellant were not subject to being suppressed.

In addition to filing a pre-trial suppression motion, appellant sought to discover the identity of the confidential informant who had told police that he was transporting drugs through the Borough of Darby. The Pennsylvania courts have recognized a qualified privilege with respect to confidential informants which “permits the Commonwealth ‘to refrain from disclosing the identity of an informer’ and ‘limits the prosecution’s duty to make available to the defense the names and whereabouts of all material eyewitnesses.’ ” Commonwealth v. Speaks, 351 Pa.Super. 149, 159, 505 A.2d 310, 315 (1986), quoting Commonwealth v. Carter, 427 Pa. 53, 55-56, 233 A.2d 284, 285 (1967). Regarding this privilege, it has been said that:

There is no fixed rule with respect to disclosure of an informant. “The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony and other relevant factors.” Commonwealth v. Carter, 427 Pa. 53, 59, 233 A.2d 284, 287 (1967), quoting Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 627-628, 1 L.Ed.2d 639, 645-16 (1957). See also: Commonwealth v. Pritchett, 225 Pa.Super. 401, 406, 312 A.2d 434, 437 (1973). Before disclosure of an informant’s identity will be required, “... more is necessary than a mere assertion by the defendant that such disclosure might be helpful in establishing a particular defense---- Although the defendant plainly cannot be expected to show that such information will actually be helpful to his defense, the record should at least suggest a reasonable possibility that the information might be helpful, so that it would be unfair to withhold it.” Commonwealth v. Herron, 475 Pa. 461, 466-67, 380 A.2d 1228, 1230 (1977). See also: Commonwealth v. Pritchett, supra, 225 Pa.Super. at 407-08, 312 A.2d at 438.

Commonwealth v. Knox, 273 Pa.Super. 563, 568, 417 A.2d 1192, 1194 (1980).

In discussing situations which might compel the disclosure of an informant’s identity the Superior Court has observed:

Before the Commonwealth will be forced to reveal an informant’s identity, there must be some showing that revelation is necessary. For example, the informant’s identity may be necessary to the defense where the evidence against the defendant proceeds solely from the testimony of police officers, and the only relatively neutral eyewitness to the crime is the informant. See Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967). Other situations where the informant’s identity would be helpful are where the defendant alleges entrapment or where there is an identification issue. See Commonwealth v. Williams, [236 Pa.Super. 184, 345 A.2d 267 (1975) ].

Commonwealth v. McGinn, 251 Pa.Super. 170, 173, 380 A.2d 431, 433 (1977) (en banc). “Conversely, when an informant has not been an eyewitness to and has no firsthand knowledge of the criminal transaction at issue, the need for disclosure is greatly reduced.” Commonwealth v. Mickens, 409 Pa.Super. 266, 275, 597 A.2d 1196, 1201 (1991). Ultimately, the decision as to whether or not to order disclosure of an informant’s identity is within the discretion of the trial court. Commonwealth v. Bonasorte, 337 Pa.Super. 332, 355, 486 A.2d 1361, 1374 (1984) (en banc). In exercising its discretion, the trial court should “weigh the proof offered by the defendant against the government’s privilege to withhold the identity of the informant.” Commonwealth v. Bonasorte, supra.

After careful review, we conclude that the trial court did not abuse its discretion. The informant in this case was not an eyewitness to the events for which appellant was being prosecuted. Moreover, appellant has made no showing that the testimony of the informant would have been relevant and helpful to any particular theory of defense. Rather, appellant has merely alleged that the informant’s identity may have been helpful to challenge the credibility of the police officers concerning the existence of any confidential informant and the validity of the information provided. In response to a similar argument, the Superior Court has stated:

Of course, if the only “evidence” produced at the suppression hearing is a defendant’s bald assertion (e.g., that the informant does not exist or that the affiant misrepresented information conveyed by informant), then the defendant has failed to meet his threshold burden. In such a situation, since the evidence is clearly insufficient, the suppression court has no reason, or need, to balance the evidence before it against the government’s privilege. Commonwealth v. Williams, [236 Pa.Super. 184, 345 A.2d 267 (1975) ].

Commonwealth v. Bonasorte, supra 337 Pa.Super. at 356, 486 A.2d at 1374. Without any reasonable basis for believing that the informant’s identity would have been helpful to the defense, there are no grounds for disturbing the trial court’s exercise of its discretion in refusing to compel disclosure of the identity of the informant.

The judgment of sentence is affirmed.


author: SAYLOR, Judge.

text:
    651 A.2d 1133
    Mauritia J. ZERCHER and Cleon S. Zercher, Appellants, v. COCA-COLA USA, the Coca-Cola Company and Stainless Ice-Tainer Co. t/d/b/a the Sitco Company, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1994.
    Filed Dec. 29, 1994.

      Daniel H. Shertzer, Jr., Lancaster, for appellants.
    Jeffrey B. Rettig, Harrisburg, for Stainless Retainer Co., appellee.
    Before CAVANAUGH, POPOVICH and SAYLOR, JJ.
   SAYLOR, Judge.

This is an appeal from an order entered in the Court of Common Pleas of Lancaster County which denied the petition of Appellants, Mauritia J. Zercher and Cleon S. Zercher, to amend their complaint. We affirm.

On January 3, 1989, Appellant, Mauritia Zercher, was allegedly injured when she slipped and fell on a puddle of soda water which had leaked from a soda machine. On January 3, 1991, the last day in the limitations period, Ms. Zercher and her husband filed a praecipe for a writ of summons naming as defendants Coca-Cola USA, the Coca-Cola Company (collectively “Coca-Cola”) and Citco, T.M. (“Citco”), a registered trademark. On December 18, 1991, Appellants filed a complaint against Coca-Cola and Citco. No appearance was ever entered on behalf of Citco.

Subsequent investigation by Appellants revealed that the soda machine in question was manufactured by Stainless IceTainer Company (“Ice-Tainer”), t/d/b/a The Sitco Company (“Sitco”). On October 5, 1993, nearly three years after filing the praecipe for a writ of summons and nearly two years after filing the complaint, Appellants filed a document entitled “reinstated complaint.” In the reinstated complaint, Appellants deleted Citco from the caption as a party defendant, and substituted in its place Ice-Tainer. Appellants did not seek permission from the trial court to amend their complaint.

After the reinstated complaint was filed, Appellee, IceTainer, entered its appearance and filed preliminary objections to the reinstated complaint, challenging service and personal jurisdiction over Ice-Tainer on the basis that it was a non-existent company. The preliminary objections also contained a motion to strike based upon the improper addition of a defendant to the complaint. The preliminary objections recited that on December 27, 1989, Ice-Tainer had merged into Schneider Metal Manufacturing Company (“Schneider”) which later merged into IMI Cornelius, Inc. (“IMI”). The preliminary objections further stated that Citco properly referred to a trademark, which is not amenable to suit.

On December 9, 1993, Appellants filed a petition to correct the name of Ice-Tainer to IMI, and the prothonotary issued a rule returnable for argument on the petition. However, on December 10, 1993, the trial court, unaware of Appellants’ petition and rule, granted Appellee’s preliminary objections and dismissed the complaint as against Ice-Tainer. Appellee subsequently contested Appellants’ petition to correct the name on the complaint, claiming that Appellants were attempting to add a new party to the litigation. The trial court agreed and denied the petition by way of an order entered on February 24, 1994. This appeal followed.

On appeal, Appellants contend that the trial court erred in denying their petition because they had originally sued the manufacturer of the soda machine under its tradename and were not attempting to add a new party to the litigation. They argue that absent an allegation of prejudice to the opposing party, their petition should not have been denied on the basis of the length of time which had passed since the date of the accident and the expiration of the statute of limitations.

Our standard of review from the denial of a petition to amend a complaint is as follows:

... [T]he decision to grant or deny permission to amend is within the discretion of the trial court and will be reversed only upon a showing of abuse of discretion.

Pitts v. Port East Pulaski Highway, 399 Pa.Super. 65, 67, 581 A.2d 677, 678 (1990).

Rule 1033 of the Pennsylvania Rules of Civil Procedure addresses corrections to the names of parties in a pleading and states, in pertinent part:

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading.

In order to secure a determination of cases on their merits the trial court should grant, whenever possible, a petition to change the name on a pleading. Jacob’s Air Cond. v. Assoc. Heating, 366 Pa.Super. 430, 531 A.2d 494 (1987). However, if the other party suffers prejudice or surprise, the petition to change the name of a party will not be permitted. Id., 366 Pa.Super. at 433, 531 A.2d at 496, citing Spain v. Vincente, 315 Pa.Super. 135, 461 A.2d 833 (1983); Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 516 A.2d 299 (1986).

Furthermore, a plaintiff may not add a new party after the expiration of the applicable statute of limitations. Hoare v. Bell Tel. Co., 509 Pa. 57, 500 A.2d 1112 (1985). One rationale underlying this rule “... is to insure that assets originally not subject to liability will not become subject to liability through court action after the statute of limitations has run.” Lafferty v. Alan Wexler Agency, Inc., 393 Pa.Super. 400, 407, 574 A.2d 671, 673-674 (1990). Therefore, in cases where the statute of limitations has expired and a party seeks to amend its pleading to correct the name of a party, the issue is whether the proposed amendment adds a new party to the litigation or merely corrects a party name. Jacob’s Air Cond. v. Assoc. Heating, 366 Pa.Super. at 433, 531 A.2d at 496. “If an amendment constitutes a simple correcting of the name of a party, it should be allowed, Wicker v. Esposito, 500 Pa. 457, 457 A.2d 1260 (1983), but if the amendment in effect adds a new party, it should be prohibited. Cianchetti v. Kaylen, 241 Pa.Super. 437, 361 A.2d 842 (1976).” Jacob’s Air Cond. v. Assoc. Heating, 366 Pa.Super. at 433, 531 A.2d at 496.

Rule 2177 of the Pennsylvania Rules of Civil Procedure states that an action shall be prosecuted against a corporation or similar entity in its corporate name. A corporate name is defined as any name, real or fictitious, under which a corporation or similar entity was organized or conducts business, whether or not such name has been filed or registered. Pa.R.C.P. No. 2176.

In both their praecipe for a writ of summons and the December, 1991 complaint, Appellants attempted to sue a trademark, Citco, T.M. A trademark is a word, name, symbol or device, or any combination thereof, which is applicable to and identifies the vendable commodities of a business. See, Ress v. Barent, 378 Pa.Super. 397, 548 A.2d 1259 (1988); Black’s Law Dictionary 776 (abridged 5th ed. 1983). By contrast, a tradename refers to the business itself. Id. Citco, T.M. referred only to a product and, as such, is not amenable to suit. Moreover, neither IMI nor Ice-Tainer were organized or conducting business under a trademark; Ice-Tainer traded and performed its business under the Sitco tradename. Finally, Ice-Tainer, which owned the Citco trademark and manufactured the soda machine, initially merged with Schneider, which then merged with IMI. An entirely new and distinct business entity, IMI, is the product of such mergers and is comprised of assets separate and distinct from IceTainer, which assets would have been subjected to liability if the petition had been granted.

Under these facts, it is obvious that Appellants did not originally institute suit against the soda machine manufacturer under its corporate name, and equally obvious that their petition improperly attempted to add a new party to this litigation under the guise of correcting the name of a trademark contained in the caption of the original action after the applicable statute of limitations had expired. Accordingly, Appellants’ petition was properly denied, and the order of the trial court is affirmed.

      . In Lafferty, the Superior Court held that the statute of limitations was tolled where a defendant actively concealed the identity of the party against whom the plaintiff intended to bring a cause of action. In this case, plaintiffs have not alleged any such concealment.


author: OLSZEWSKI, Judge: BECK, Judge,

text:
    651 A.2d 1135
    COMMONWEALTH of Pennsylvania v. Lee Anthony KONDOR, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1994.
    Filed Dec. 23, 1994.

      Mark E. Lovett, Lancaster, for appellant.
    Michael J. Barrasse, Dist. Atty., Scranton, for appellee Com.
    Before OLSZEWSKI, DEL SOLE, and BECK, JJ.
   OLSZEWSKI, Judge:

This appeal is the latest round in Lee Anthony Kondor’s fight over a speeding ticket. We admire Kondor’s principled tenacity, and agree with much of his argument. Yet we must affirm his judgment of sentence: a fine and costs, totalling $158.00.

In April of 1992, Kondor was caught speeding on Route 6 in Dickson City, north of Scranton. A police officer clocked Kondor’s red Audi doing 62 m.p.h. in a 35 m.p.h. zone. Rather than challenging the accuracy of the VASCAR unit which measured his speed, Kondor chose to challenge the appropriateness of the posted speed limit.

Kondor is an engineer with some knowledge of traffic study methodology and driver behavior. He feels that his speed of 62 m.p.h. was perfectly safe and reasonable for that particular stretch of Route 6, and the posted speed limit of 35 m.p.h. has no rational justification save as a money-making scheme for the city enforcing the speed trap. Kondor concedes that the amount of the fine is of no moment to him; rather, he takes umbrage at the notion that he, an expert driver and otherwise law-abiding citizen, should be penalized for exceeding an arbitrarily set and unreasonably low speed limit.

Kondor lost his first challenge to the ticket before a district justice, and appealed for a de novo trial in the Court of Common Pleas. To prepare for his hearing, Kondor subpoenaed from the Pennsylvania Department of Transportation (PennDOT) the traffic study upon which the 35 m.p.h. speed limit was based. PennDOT responded that there was no traffic study; the speed was automatically set at 35 m.p.h. because that stretch of Route 6 is in an urban area. See 75 Pa.C.S.A. § 3362(a)(1). Kondor therefore took careful measurements of all of the businesses and structures along the road, and was prepared to prove that it did not meet the requirements for an urban classification. See id., § 102 (defining “urban district”).

The Commonwealth switched tactics at Kondor’s trial. Thomas Ochal, a PennDOT traffic safety engineer, appeared with a copy of a 1985 traffic study on the disputed stretch of Route 6. PennDOT’s practice is to base the speed limit on the 85th percentile speed of traffic, which radar studies showed to be about 43 m.p.h. PennDOT normally rounds this down to the nearest multiple of five, so the appropriate speed limit would be 40 m.p.h. Taking the road’s high accident rate into account, PennDOT lowered the speed limit by another 5 m.p.h., resulting in the posted 35 m.p.h. speed limit. N.T. 4/2/93 at 11-12. PennDOT’s procedures use a speed-determining formula based on federal studies and guidelines. It is complex, but not arbitrary. Id. at 25.

In addition to a high accident rate, Route 6 also suffered from serious congestion. Sometime between 1985 and 1992, PennDOT widened this part of Route 6 from three lanes into five lanes. Ochal testified that the widening relieved the congestion, but probably did not reduce the accidents from the heavy cross traffic. Ochal admitted that PennDOT had done no subsequent studies since the road was widened, and that the 35 m.p.h. speed limit was simply left in place on what was essentially a new road. Id. at 15-16.

Kondor then testified in his own defense. He introduced a federal traffic report which concluded that posted speed limits have little effect on how fast people go. According to the paper, people will drive as fast as they think reasonable given the condition of the road and visibility. The officer who stopped Kondor did not cite him for careless or reckless driving, but only for exceeding the posted speed limit. 75 Pa.C.S.A. § 3362(a)(3). Kondor argued that 35 m.p.h. was unreasonably low, and for an expert driver like himself 62 m.p.h. was a safe and reasonable speed. Id. at 42-50. Kondor did admit that he was doing 62 m.p.h. when stopped, and that the amount of the ticket was not an issue. Id. at 50, 57.

The trial court rejected Kondor’s defense. It ruled that PennDOT has wide discretion in discharging its statutory duties of conducting traffic studies and setting speed limits, and chose not to question the agency’s exercise of discretion. Opinion, 5/6/93. Kondor appeals the trial court’s decision to allow PennDOT’s 1985 traffic study into evidence, since Penn-DOT surprised him with it at trial despite his subpoena. He also argues that the study is no longer valid for the widened road, so the speed limit is arbitrary and invalid. The Commonwealth counters that Kondor cannot win in any event because he admitted to travelling at 62 m.p.h., which is not a legal speed on any road in the Commonwealth. The Commonwealth also points to some minor technical defects in Kondor’s brief, and argues that he has no standing to challenge Penn-DOT’s exercise of its administrative power to set speed limits.

We begin by rejecting the Commonwealth’s second and third arguments. We have read the entire record, and conclude that Kondor did an excellent job of representing himself in the court below. His arguments are cogent, his presentation concise, and he made a solid record for appellate review— far better than the average summary case. Also, we think that if anyone has standing to challenge a posted speed limit, it would be one convicted of a crime for violating it, albeit just a summary offense.

We also agree with Kondor that PennDOT may not set speed limits arbitrarily. If the Commonwealth could offer no justification for posting a 35 m.p.h. sign on Route 6, Kondor would not be guilty of a crime for merely going faster than 35 m.p.h.

But the Commonwealth did offer some justification for its speed limit. PennDOT went to the trouble of producing its regional traffic safety engineer to testify at Kondor’s trial, and explain the minutiae of Route 6’s traffic flow. Kondor may argue that PennDOT’s methodology for setting the initial 35 m.p.h. speed limit in 1985 was less than optimal, but it was certainly not arbitrary. We will not second-guess PennDOT’s traffic safety engineers or re-write the formula they use to set speed limits. Our review of the record also convinces us that PennDOT’s failure to produce the 1985 traffic study did not prejudice Kondor. Even if he had received the report earlier and could have poked more holes in it, we would still not take it upon ourselves to tell PennDOT how to do its job, so long as we are satisfied that the agency is acting rationally.

We thus conclude that PennDOT set a rational speed limit in 1985 for the three-lane Route 6. The interesting question is whether Route 6 essentially became a new road when Penn-DOT added two lanes, calling for a new traffic study and a new speed limit determination. Clearly, most improvements to a road, such as repaving or shoulder widening, would not trigger any duty to recalculate speed limits. Converting something like a narrow, winding two-lane road into a straight, divided multi-lane expressway obviously would call for a reconsideration of speed limits. What of the transformation of Route 6 from a three-lane to a five-lane road?

We need not decide this question, because even if we were to side with Kondor, we would still agree that he is guilty of violating 75 Pa.C.S.A. § 3362. Kondor admitted to travel-ling at 62 m.p.h., and stipulated that the amount of the fine was not important to him. Therefore, we need not worry about what the proper speed limit should have been; Kondor still would be guilty of exceeding it. See 75 Pa.C.S.A. §§ 3362 and 3363 (limiting maximum speeds to 55 m.p.h.). Kondor’s admissions moot his challenge.

We offer one observation for Kondor’s benefit. We acknowledge that Kondor may well be an expert driver, perfectly capable of safely negotiating Route 6 at 62 m.p.h. Perhaps if every driver were as well qualified as Kondor, we would have no need to post speed limits at all, trusting individual drivers’ discretion instead. Such an approach would mandate very high standards for licensing drivers. Indeed, other societies require licensees to demonstrate a far greater mastery of driving skills and knowledge than we do in the United States.

Because of the way that the automobile has woven itself into our social fabric, our nation has decided that drivers’ licenses should be granted upon a much lower showing of minimal competence. In exchange for this liberal access to the road, we allow our government to target its traffic regulations toward the least skilled drivers among us. While an expert driver like Kondor may chafe at what seems an unreasonably low speed limit, other less competent drivers need this kind of regulation; they cannot be trusted to choose an appropriate speed for themselves because they lack the skills to make a prudent choice. Until our legislature decides to grant different classes of drivers’ licenses, or raise the standards for everyone, Kondor will simply have to put up with speed limits aimed at controlling worse drivers than himself. This is one of the many inevitable trade-offs one must make for living in a developed, democratic society.

Judgment of sentence affirmed.

DEL SOLE, J., concurs in the result.

BECK, J., files a concurring statement.

BECK, Judge,

concurring:

I concur in the result. Appellant failed to establish that the posted speed limit on Route 6 does not comply with the requirements of the Vehicle Code. See 75 Pa.C.S.A. § 3111(d) (traffic control devices are presumed to comply with the requirements of the law unless the contrary shall be established by competent evidence). While it is not the Commonwealth’s initial burden to offer evidence of a traffic and engineering study in this type of case, a defendant seeking to challenge the validity of a posted limit must rebut the presumption of validity with competent evidence. See Commonwealth v. Kerns, 278 Pa.Super. 283, 420 A.2d 542, 543 (1980). Here, the Commonwealth’s evidence amply supported the validity of the posted limit on Route 6, particularly in light of the Department of Transportation’s broad discretion in regulating traffic studies. See 75 Pa.C.S.A. § 6105 (department may establish the manner in which traffic and engineering investigations shall be carried out). Further, the PennDOT traffic engineer’s testimony with respect to changes that likely would occur when the road was widened adequately addressed that issue.

Appellant’s self-proclaimed “expert driver” status is not relevant. He simply failed to prove that the posted speed limit was invalid and now must pay the fine he properly was assessed when he broke the law.

      . Like my colleague, I see no prejudice in allowing the admission of the traffic study. The Commonwealth offered a plausible explanation for the error and appellant points to no prejudice he suffered nor any possibly different outcome which would have resulted from his possession of the study at an earlier date.