author: Beaver, J.,

text:
    Degenhardt v. Aachen & Munich Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Certificate of magistrate — Proofs of loss— Waiver.

    Where a fire insurance policy requires the insured to furnish to the insurance company a certificate of the nearest magistrate as to the loss, and the insured furnishes a certificate of the nearest magistrate, but this is returned to him by the company on the ground that it is insufficient, but without the particular insufficiency being stated, and the magistrate on request refuses to furnish any other certificate, a ruling by the trial judge that the proofs of loss were sufficient in law, and a resultant verdict and judgment for the insured, will not be reversed on appeal.

      Argued April 21, 1910.
    Appeal, No. 76, April T., 1910, by defendants, from judgment of C. P. No. 4. Allegheny County, Fourth Term, 1907, No. 951, on verdict for plaintiff in case of Jacob Degenhardt, Jr., v. Aachen & Munich Fire Insurance Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Cohen, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,100. Defendants appealed.

      Errors assigned were (1) refusal of binding instructions for defendants; (2) refusal of judgment for defendants n. o. v.

      W. K. Jennings, with him D. C. Jennings, for appellants.
    The certificate was insufficient on its face: Johnson v. Ins. Co., 112 Mass. 49; Worsley v. Wood, 6 T. R. 710.
    Our courts have held over and over again that they cannot make contracts for the parties, but are bound by those already made, and every duty is discharged when they construe them: National Surety Co. v. Long, 125 Fed. Repr. 887; Northern Assur. Co. v. Standard Leather Co., 165 Fed. Repr. 602.

      W. A. Hudson, for appellee.
    The clause in a policy of insurance requiring the certificate of a magistrate or notary as to character and circumstances of the assured and the amount of the loss does not require a strict literal compliance more than any ordinary contract: Turley v. North American Fire Ins. Co., 25 Wend. (N. Y.) 374; Frick v. Ins. Co., 218 Pa. 409.
    We say as a matter of law, that the defendants have waived any defects in said certificate.

      December 12, 1910:
    1. Because defendants do not specify wherein there is any defect in Alderman Bleichner’s certificate.
    2. Because the defendants did not call for more specific proofs.
    3. Because the statement “that the certificate of Alderman Bleichner does not comply with the requirements” is not sufficient notice to the plaintiff of any defect therein: Davis Shoe Co. v. Ins. Co., 138 Pa. 73; Susquehanna Mut. Fire Ins. Co. v. Cusick, 109 Pa. 157; Universal Fire Ins. Co. v. Block, 109 Pa. 535; Jacoby v. Ins. Co., 10 Pa. Superior Ct. 366; Coleman v. Ins. Co., 177 Pa. 239.
   Opinion by

Beaver, J.,

This case and one by the same plaintiff against the Atlas Assurance Co., Ltd., were tried together in the court below. Verdicts and judgments were rendered and entered against both defendants. Separate appeals were taken which were argued here together, the questions involved being precisely the same, and their presentation included in the same paper-book. .

Practically a single question is raised for consideration, although presented under two assignments of error. The first assigns for error the refusal of the court to the point that “Under all the evidence, the verdict should be for the defendants,” which was refused. The second, that “The court erred in not directing judgment to be entered non obstante veredicto,” the decree declining to do so being embraced in the second assignment of error.

The defendant, in its argument, says: “The principal legal question involved is in regard to a clause in the policy which provided as follows: ‘The insured .... shall, if required, furnish a certificate of the magistrate or notary public not interested in the claim, as a creditor or otherwise nor related to the insured, living nearest the place of the fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify.’ ” It is not contradicted that the plaintiff furnished a certificate by the nearest magistrate, but it is denied that the said certificate, or the supplemental certificate, was in accordance with the requirements of this provision of the policy. A certificate of G. J. Bleichner, alderman and ex-officio justice of the peace, was furnished with the proofs of loss as follows: “Pittsburg, Pa., July 22nd, 1907. I, G. J. Bleichner, Alderman of the 26th Ward, City of Pittsburg, County of Allegheny and State of Pennsylvania, do hereby certify that I am the nearest Alderman to the building No. 1606 Carson Street, Pitts-burg, Pa., burned July 7th, 1907, in which there was a barber shop owned (as I am told) by Jacob Degenhardt, that I am not interested in the claim as a creditor or otherwise, nor related to the insured; that I have examined the circumstances, and believe the building, with all its contents, was a total loss, that I am not familiar with prices or value of barber shop goods and was never in said shop, and do not know what the loss sustained was, the said building being occupied only recently by said Jacob Degenhardt, as I am informed.”

Complaint was made by the defendant to the attorney of the plaintiff of this certificate, alleging its insufficiency, in the following terms: “You are required to furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest to the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify. See lines 77-80 inclusive of the policy.” The certificate of Aider-man Bleichner does not comply with the requirements. Application, as the testimony shows, was made to the alderman for a more specific certificate, but he declined to accede to the request, for the reasons stated in his first certificate. The failure to furnish this certificate, in accordance with the terms of the policy, as construed by the plaintiff, is the principal ground upon which the court was asked to direct a verdict for the defendant and to enter judgment for the defendant n. o. v., a verdict for the whole amount of the policy having been rendered by the jury.

The court, after declaring the duty of the plaintiff to comply with the provisions of the contract and reciting the clause in the policy relating to the certificate of a magistrate, in its charge to the jury, said: “I say to you as a matter of law that it has never been judicially determined, as far as I can ascertain, in Pennsylvania, positively and absolutely, whether the refusal of an alderman to amplify or to complete a certificate which he has given, or whether the absolute refusal to give a certificate at all, is a release of the assured from liability to respond to that covenant. I believe that the law is, or should be, that, where the assured has used every possible, reasonable and honest endeavor to obtain the certificate of the magistrate, and where the certificate is refused, he has done all that is required of him by that particular covenant of the policy. Or, if the certificate, as in this case, was furnished by the magistrate, and was returned by the company as incomplete, because the magistrate did not designate the amount of loss that he believed the plaintiff has sustained, and the company told the plaintiff to perfect that, and he went back (if you believe the testimony of Degenhardt that he did go back to Bleichner, the alderman) and that he did seek and urge the alderman to perfect that certificate by including in that certificate, or by an additional one, the fact that the amount of the loss of the assured he believed to be so much, and that the alderman refused and said he would have nothing more to do with it, I say to you then that in my judgment he did all that the law requires of him.

“So that, if you believe the testimony before you on the subject of the attempt to get a more perfect certificate, which Jacob Degenhardt has sworn to and if you believe what he says — that the alderman refused so to do — then you cannot throw him out of court and refuse to give him what he is entitled to, because he has not complied with that provision of the contract.”

In this the appellant insists the court committed error and that in the face of an unbroken line of decisions for one hundred years. Numerous English authorities and decisions of the supreme court of the United States and of the courts of appeal in many of our sister states are cited at length and it is shown that our own Supreme Court has not been entirely consistent in its rulings on this question.

Two points were presented by the defendant in the court below. One, asldng the court to direct a verdict for the defendant, was refused. The other, relating to the concealment or misrepresentation by the plaintiff of any material fact or circumstance in relation to the purchase of the property insured or the commission of any fraud or false swearing touching the value of the insured property claimed to have been destroyed by fire, was affirmed. The manner in which the question, regarded by the appellant as the serious one in the case, was submitted to the jury, therefore, is not the subject of complaint.

The argument of the defendant seems to be based entirely upon what it alleges to be a failure on the part of the plaintiff to furnish the certificate of the nearest magistrate in relation to the fact of the fire and the amount or value of the property described. That the plaintiff did furnish a certificate is not denied, but it is alleged that the certificate was not such as was required by the policy. Wherein the certificate furnished was insufficient, or did not meet the requirements of the provision in the policy relating thereto, is not disclosed. The defendant returned the proof of loss, calling attention in general terms to the certificate of the magistrate, and affirming that it was not in accordance with the printed provisions of the policy, but not specifying wherein it differed. We are not dealing with a case in which the plaintiff failed to furnish a certificate of the nearest magistrate, but with one in which the defendant declared that the certificate provided for in the policy was not furnished. Wherein was the certificate furnished insufficient? The defendant failed to notify the plaintiff wherein the certificate was defective, and this we take it to be the real point in the case.

In Kelly v. Sun Fire Office, 141 Pa. 10, the Supreme Court deals with certain alleged dicta contained in Universal Fire Ins. Co. v. Block, 109 Pa. 535, and Davis Shoe Co. v. Insurance Co., 138 Pa. 73, wherein, as to the statement of the opinion in the case first cited: “The company had no right to require a public officer to act in the adjustment of its risks, and the neglect of the assured to even ask a certificate from that officer would have been no default; ” Mr. Chief Justice Paxson, who wrote the opinion, goes on to say: “Fortunately, whether right or wrong, it has done no injury, as each of those cases” (referring to those last mentioned) “was decided upon other sufficient grounds, and the remark may be regarded as dictum. The present seems a fitting time to examine the question, and see if the dictum is law. If not, it is our plain duty, as it is our pleasure, to say so promptly.

“We do not think it was error to say that an insurance company ‘had no right to require a public officer to act in the adjustment of its risks.’ No such officer could be compelled to do so. This is plain enough. It does not follow that the parties to a policy of insurance may not contract that the insured shall procure a certificate from the nearest magistrate, notary, or other officer. Such contract is not forbidden by any law or rule of public policy. It may be a foolish contract on the part of the assured, but we do not reform men’s contracts because of their folly. In the case in hand, the plaintiff did not complain of this clause; on the contrary, he complied with it. While the right of a company to compel a public officer to adjust its loss cannot be successfully claimed, yet, where such a clause exists in a policy by the agreement of the parties, we are not prepared to adopt the expression in Universal Fire Ins. Co. v. Block, 109 Pa. 535, that ‘the neglect of the assured to even ask a certificate from that officer would have been no default.’ We are not dealing with the case of an attempt on the part of the assured to obtain such a certificate, and the refusal of the officer to give it.

“This is not a new question, and we are, therefore, spared an extended discussion of it. It is sufficient to refer to the authorities. In 2 Phillips on Insurance, 472, the rule is thus stated: ‘Fire policies generally have a provision that the assured shall produce certain certificates respecting the loss, which vary considerably, as will appear from the instances to be given. It is, like all express conditions, always to be complied with, unless the right to demand the certificate is expressly or impliedly waived by the insurers.’ This, I believe, is the rule in all the best books on insurance; it is certainly so in Flanders on Insurance, 2d ed., 586, and in Wood on Insurance, 710. It was also declared in the Court of King’s Bench, by Lord Kenyon, C. J., nearly a century ago, in Worsley v. Wood, 6 Term R. 710, and has continued to be the law of England to this day. In Columbian Ins. Co. v. Lawrence, 27 U. S. 25, Chief Justice Marshall sustained a similar provisión, and when the same case came before the same court seven years later, the principle was affirmed by Mr. Justice Story: 35 U. S. 507. The doctrine was squarely affirmed in Gilligan v. Insurance Co., 87 N. Y. 626; Johnson v. Insurance Co., 112 Mass. 49; Daniels v. Insurance Co., 50 Conn. 551. In our own cases of Commonwealth Ins. Co. v. Sennett, 41 Pa. 161, and Mueller v. Insurance Co., 87 Pa. 399, the same rule is recognized, and in the former case the opinion of Lord Kenyon in Worsley v. Wood, 6 Term R. 710, is referred to with approval. The only cases cited against this over-whelming weight of authority were Universal Fire Ins. Co. v. Block, 109 Pa. 535 and Davis Shoe Co. v. Insurance Co., 138 Pa. 73. The dictum of those cases must give way before such an unbroken line of decisions.”

It is to be observed that this case does not determine or decide that the absolute refusal of a magistrate to furnish the certificate required would absolve the plaintiff from the necessity laid upon him by the terms of his policy, but that question does not necessarily arise here and, therefore, requires no discussion on our part.

Did the defendant discharge its duty to the plaintiff in failing to particularize wherein the certificate of the magistrate furnished by the plaintiff was deficient? “If the company intends to insist on defects, it should point out what defects it intends to rely upon, in order that they may be obviated; a mere indefinite objection is not sufficient, but an objection that the insured has failed entirely to comply with the conditions of the policy as to proofs is sufficient”: 19 Cyc. 863.

“It is the duty of an insurance company, upon finding proofs of loss objectionable, to return the same and inform the assured of the particular defects”: Universal Fire Ins. Co. v. Block, 109 Pa. 535. '

Davis Shoe Co. v. Kittanning Ins. Co., 138 Pa. 73, decides, as contained in the syllabus: “It is not a sufficient compliance with this duty to return the proofs with a letter quoting that part of the policy which prescribes the form of the proofs and what they shall contain, and stating merely that the proofs in question are not in accordance therewith.” This was precisely what the defendant did in this case.

So in Sutton v. American Fire Ins. Co,, 188 Pa. 380: “Where the assured under a policy of fire insurance makes an apparently honest effort to specify with particularity his loss, as required by the policy, it is the duty of the insurance company, with reasonable promptness, to particularize wherein the assured fails to meet the condition.”

Ordinarily and primarily “the preliminary proofs and their sufficiency are for the court; if not sufficient, the cause is at an end, unless they have been expressly or impliedly waived by the defendants”: Comth. Ins. Co. v. Sennett et al., 41 Pa. 161; Kittanning Ins. Co. v. O'Neill, 110 Pa. 548; Cole et al. v. Manchester Fire Assurance Co., 188 Pa. 345; Sutton v. American Fire Ins. Co., 188 Pa. 380; Cummins v. German American Ins. Co., 192 Pa. 359; Ulysses Elgin Butter Co. v. Hartford Fire Ins. Co., 20 Pa. Superior Ct. 384.

The sufficiency of the proofs of loss was a question for the court. It decided that the requirements of the policy, relating to the proofs of loss, were substantially complied with. The manner in which this was determined is not complained of, there being no assignment of error based upon the charge of the court. Whether this decision were based upon the substantial compliance of the plaintiff in regard to the certificate by the magistrate, as to which we express no opinion, or upon the failure of the defendant to specify wherein the said certificate was insufficient, we are of the opinion that the ruling of the court in this respect was correct.

On the whole case as presented, we fail to find reversible error.

Judgment affirmed.

Morrison and Porter, JJ., dissent.


source: Caselaw Access Project

license: Public Domain

text:
    Degenhardt v. Atlas Assurance Company, Appellant.
    December 12, 1910:
   Opinion by

Beaver, J.,

This case was tried in the court below, and argued here, in the case of the same plaintiff against the Aachen & Munich Fire Ins. Co., being No. 76 of April Term, 1910, in which an opinion has been this day filed, ante, p. 644.

For the reasons therein stated, the questions involved being precisely the same, we are of the opinion that the court committed no reversible error.

And for the reasons therein stated, judgment affirmed.

Morrison and Porter, JJ., dissent.


author: POPOVICH, Judge:

text:
    654 A.2d 1168
    COMMONWEALTH of Pennsylvania, Appellee, v. Douglas N. KROH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1994.
    Filed Feb. 22, 1995.

      Douglas N. Kroh, pro se.

      Ronald T. Williamson, Deputy Atty. Gen., Norristown, for Com., appellee.
    Before POPOVICH, FORD ELLIOTT and MONTGOMERY, JJ.
   POPOVICH, Judge:

This appeal from the order of the Court of Common Pleas of Perry County denying appellant’s petition for specific performance of his plea agreement, provides us with an opportunity to review an action which is quite different from most attempts by defendants to enforce the terms of a plea agreement. Herein, the lower court actually accepted the bargain and properly sentenced appellant in compliance with the terms of the agreement. Nevertheless, appellant is convinced that the Commonwealth has breached the terms of his plea bargain by seeking to compel him to testify in a civil forfeiture action against the property of one of his co-conspirators. Upon review, we agree with appellant and reverse the order of the court below.

Appellant was charged with four counts of possession of marijuana with the intent to deliver, 35 Pa.S.A. § 780-113(a)(30), two counts of corrupt organizations, 18 Pa.C.S.A. § 911, and one count of criminal conspiracy, 18 Pa.C.S.A. § 903. The charges stemmed from appellant’s involvement in an organization which shipped large quantities of marijuana from Texas to Perry County for repackaging and distribution in central Pennsylvania.

Police intelligence indicated that appellant’s residence was the source of several controlled purchases of one-ounce packages of marijuana. Subsequently, on January 2, 1992, a controlled purchase of a quarter-pound of marijuana from appellant’s residence was made. A search warrant was then obtained, and, on January 3, 1994, police executed the warrant. Appellant and his cousin, Lewis Kroh, were present during the search, and a quarter-pound of marijuana and $721.00 were seized from the person of Lewis Kroh. Later, after being advised of his constitutional rights, appellant gave a detailed confession implicating himself and others, including Victor McCoy, Roberto Mendez and Robert Rose, in an extensive marijuana trafficking enterprise. In addition to confessing, appellant turned over to the authorities eight pounds of marijuana and approximately $13,000.00 in proceeds from the sale of marijuana which he was storing for Victor McCoy.

Appellant agreed to cooperate with the police in their investigation of the involvement of Roberto Mendez, Victor McCoy and Robert Rose in the marijuana distribution scheme. In exchange for his cooperation, appellant was offered the following plea bargain by the Drug Prosecution and Forfeiture Section of the Attorney General’s Office, as set forth in the letter of September 28, 1992, from Deputy Attorney General Ronald T. Williamson:

The purpose of this letter is to notify you directly of the terms and conditions of your guilty plea to and sentence on various criminal offenses with which you have been charged by the Commonwealth of Pennsylvania; these terms and conditions were negotiated on your behalf by your attorney, Mr. Walz. These offenses concern your guilt with respect to marijuana trafficking in violation of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act and the Crimes Code.
It is hereby agreed that you will enter a plea of guilty to three counts of possession with intent to deliver marijuana [35 P.S. Sec. 780-113(a)(30) ]; one count of criminal conspiracy to deliver marijuana [18 Pa.C.S. Sec. 903]; and one count of corrupt organizations conspiracy [18 Pa.C.S. Sec. 911(b)(4) ]. The two remaining counts, one count of corrupt organizations and a count of possession with intent to deliver marijuana will be withdrawn by the Commonwealth. In addition, the Commonwealth will agree to the modification of your bail to one hundred thousand dollars ($100,-000.00) ROR conditioned upon your agreement by signing this letter to cooperate in connection with this matter referred to later on in this letter.
In addition to agreeing to plead guilty to the above mentioned offenses in the preceding paragraph you hereby promise and agree, if requested by the Commonwealth, to testify truthfully, whenever so requested, about your complete knowledge concerning the involvement of Roberto Mendez, James Victor McCoy, Robert C. Rose, and any other individuals involved in marijuana trafficking of which you were a part and a conspirator. In addition to testifying truthfully on behalf of the Commonwealth at any proceeding relating to this matter, you will cooperate and do all things deemed necessary by Pennsylvania law enforcement authorities, including but not limited to being present for any interviews that may be necessary to take of you regarding your knowledge surrounding this marijuana trafficking conspiracy or anything else in connection with any additional investigation that may be required relating to these offenses to which you are pleading guilty. Your sentencing on your guilty plea to your offenses enumerated in this letter will be deferred until such time as your cooperation with the Commonwealth of Pennsylvania is no longer required.
In the event that you fulfill your promise to cooperate and assist in the apprehension and/or conviction of Roberto Mendez, James Victor McCoy, Robert C. Rose and others involved in the marijuana trafficking conspiracy, the Commonwealth has agreed that your total sentence on these charges will not exceed a minimum of twenty nine and a half (29%) months to a maximum of fifty nine and a half (59%) months incarceration. Your sentence is not dependent upon the conviction of the above individuals. The only requirement is that you testify truthfully and fully without withholding any evidence of which you have knowledge. In addition, it is also agreed that you will not contest the forfeiture petition filed against you with regard to the United States currency seized from you in connection with this matter. The amount of currency seized is fourteen thousand six hundred ten ($14,610.00) dollars. By signing this letter you specifically agree to the forfeiture of that amount to the Commonwealth of Pennsylvania.
Your attorney will be free to make an argument to the Court based upon your cooperation that the Court should sentence you to less of a sentence than twenty nine and a half (29$) months to fifty nine and a half (59$) months. By the same token, at sentencing, the Commonwealth, if so inclined, is free to recommend that you be sentenced up to the maximum of twenty nine and a half (29$) months to fifty nine and a half (59$) months as a result of your guilty plea to these charges.
As to your personal safety upon sentencing, the Commonwealth of Pennsylvania also agreed that, if you should so choose, the Commonwealth will take steps to place you in any state penitentiary facility of your choosing if you request that your sentence be served in a state correctional facility as opposed to a county prison.
It is also specifically understood by you that the testimony and evidence that you may be required to give will be in accordance with the affidavit of probable cause marked “Attachment B” in which information attributed to you was provided by you to the police, when you commenced your cooperation on January 3, 1992. A copy of that attachment consisting of twenty (20) pages is made an attachment of this letter and specifically a part of this plea agreement.
If it is determined that you have been dishonest, untruthful, or have withheld information from the Commonwealth of Pennsylvania in connection with the investigation and prosecution of the individuals and criminal offenses referred to in this letter, this guilty plea and sentencing agreement shall be null and void.

After all of the other members of the marijuana distribution organization pleaded guilty and were sentenced on various charges arising out of the drug trafficking, appellant was sentenced on June 28, 1993. This delay in sentencing complied with a term of the plea bargain which expressly deferred appellant’s sentencing until his “cooperation with the Commonwealth [was] no longer required.”

At the sentencing hearing, the Commonwealth confirmed that appellant had “cooperated fully with the Commonwealth” as was required by the plea bargain. The Commonwealth characterized appellant’s cooperation as “substantial.” Further, the Commonwealth recommended a sentence of twenty-four to fifty-nine and one-half months which was lower than the maximum which the Commonwealth could have suggested under the terms of the plea agreement. The lower court then sentenced appellant to twenty-four to fifty-nine and one-half months incarceration in Perry County prison and fined appellant a sum of $1,000.00. In addition, appellant forfeited $14,610.00 in proceeds from the sale of marijuana.

Approximately one month after appellant’s sentencing, the Commonwealth initiated forfeiture proceedings against the property of Victor McCoy. The Commonwealth then sought the aid of appellant in the prosecution of the civil forfeiture action. On January 25, 1994, appellant filed a pro se “Petition for Specific Performance of Plea Agreement”, and an amended petition was later filed with the aid of counsel.

In his petition, appellant argued that it would be a breach of the terms of the plea bargain for the Commonwealth to subpoena him to testify in the forfeiture action against Victor McCoy. Appellant emphasized that the plea agreement required his cooperation only in the criminal prosecutions of McCoy, Mendez and Rose. As further evidence that he could not be compelled to testify in the civil action against McCoy’s property, appellant cited the provision of the plea bargain which stated he would not be sentenced until after his “cooperation with the Commonwealth [was] no longer required.”

On the other hand, the Commonwealth submitted that both parties had fully complied with the terms of the plea agreement. The Commonwealth argued that the plea bargain dealt solely with appellant’s cooperation in criminal actions and did not relate to appellant’s cooperation in any civil forfeiture actions. The Commonwealth contended that appellant is subject to the subpoena powers of the court in the civil forfeiture action, and, if appellant does not desire to testify, he should simply file a motion to quash the subpoena in accordance with Pa.R.C.P. 234.4.

Upon consideration of appellant’s motion, the lower court denied the petition for specific performance. The court reasoned that both appellant and the Commonwealth complied with the terms of the plea agreement, and appellant had been .sentenced accordingly. Nevertheless, the court believed that the Commonwealth could subpoena appellant to testify in the forfeiture action; and it denied appellant’s requested relief.

In this appeal, both parties present the same arguments. Appellant, in essence, asks this court to enter a protective order which estops the Commonwealth from compelling appellant’s attendance and testimony at McCoy’s civil forfeiture proceeding. Appellant does not desire to withdraw his guilty plea but, rather, seeks the benefit of his plea bargain. Thus, the question we must first answer is what exactly were the terms of the plea agreement between appellant and the Commonwealth.

As our Supreme Court stated in Commonwealth v. Zuber, 466 Pa. 453, 457-58, 353 A.2d 441, 443-444 (1976):

“While it is true that the practice of plea bargaining is looked upon with favor, Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966), the integrity of our judicial process demands that certain safeguards be stringently adhered to so that the resultant plea as entered by a defendant and accepted by the trial court will always be one made voluntarily and knowingly, with a full understanding of the consequences to follow. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
% í¡: Ht % % %
Most pertinent to the instant appeal is the requirement that when counsel for both sides enter into a plea agreement, the terms of that agreement must be stated in open court. See, Pa.R.Crim.P. § 319(b)(2), amended and effective March 28, 1973, 19 P.S.Appendix; Commonwealth v. Alvarado, 442 Pa. 516, 519, 276 A.2d 526, 528 (1971); Commonwealth v. Wilkins, 442 Pa. 524, 277 A.2d 341 (1971); Commonwealth v. Barrett, 223 Pa.Super. 163, 299 A.2d 30, 31 (1972).
Moreover, there is an affirmative duty on the part of the prosecutor to honor any and all promises made in exchange for a defendant’s plea. Santobello v. New York, supra; Commonwealth v. Alvarado, supra; Commonwealth v. Wilkins, supra. Our courts have demanded strict compliance with that duty in order to avoid any possible perversion of the plea bargaining system, evidencing the concern that a defendant might be coerced into a bargain or fraudulently induced to give up the very valued constitutional guarantees attendant the right to trial by jury.
Therefore, in Pennsylvania, it is well settled that “where a plea bargain has been entered in to and is violated by the Commonwealth, the defendant is entitled, at least, to the benefit of the bargain.” Commonwealth v. Zakrzewski, 460 Pa. 528, 533, 333 A.2d 898, 900 (1975) (emphasis added).

See also, Commonwealth v. Porreca, 389 Pa.Super. 553, 560, 567 A.2d 1044, 1048 (1989); Commonwealth v. Fruehan, 384 Pa.Super. 156, 158, 557 A.2d 1093, 1094 (1989); Commonwealth v. Williams, 333 Pa.Super. 77, 481 A.2d 1230 (1984).

When determining precisely what the terms of a plea agreement were, we are guided by the analysis concisely set forth in United States v. Hall, 730 F.Supp. 646, 650 (M.D.Pa.1990):

Although a plea agreement occurs in a criminal context, it remains contractual in nature and is to be analyzed under contract-law standards. United States v. Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir.1989). Furthermore, disputes over any particular term of a plea agreement must be resolved by objective standards. United States v. Nelson, 837 F.2d 1519, 1522 (11th Cir.), rehearing denied 845 F.2d 1032 (1988); see also United States v. Read, 778 F.2d 1437, 1441 (9th Cir.1985) cert. denied 479 U.S. 835, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986). A determination of exactly what promises constitute the plea bargain must be based upon the totality of the surrounding circumstances and involves a case-by-case adjudication. United States v. Grant, 622 F.2d 308, 312 (8th Cir.1980).
Any ambiguities in the terms of the plea agreement will be construed against the Government. [United States v. ] Crusco, 536 F.2d [21] at 25 [3d Cir.1976]. Nevertheless, the agreement itself controls where its language sets out the terms of the bargain with specificity. See United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir.1980).

See also, Fruehan, 557 A.2d at 1094-1095, quoting, Paradiso v. United States, 689 F.2d 28, 31 (2d Cir.1982) (per curiam), cert. denied, 459 U.S. 1116, 103 S.Ct. 752, 74 L.Ed.2d 970 (1983), quoting, United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979) (When assessing whether a particular plea agreement has been breached, we look to “what the parties to this agreement reasonably understood to be the terms of the agreement.”).

Thus, we must ascertain the precise terms of the plea agreement. Upon review, certain terms of the bargain are clear. The Commonwealth agreed that appellant’s sentence would not exceed a minimum of twenty-nine and one-half months nor a maximum of fifty-nine and one-half months and that appellant could select his place of incarceration, either a state penitentiary or a county prison. The Commonwealth also agreed that appellant’s bail would be reduced to “$100,-000.00 ROR”, while the charges were pending. In addition, the Commonwealth agreed to withdraw one count of corrupt organizations and one count of possession of a controlled substance with the intent to deliver.

In exchange, appellant agreed to plead guilty to one count of corrupt organizations, one count of criminal conspiracy and three counts of possession of marijuana with the intent to deliver. Appellant also agreed to forfeit $14,610.00, which was seized from appellant in connection with the investigation. Appellant also clearly agreed to cooperate fully in the criminal investigations of McCoy, Mendez and Rose, and to testify truthfully in their prosecutions.

Neither party disputes that both complied with all of the foregoing terms of the plea agreement. However, the question remains whether the plea bargain also governed appellant’s cooperation in any civil forfeiture action which might arise from the marijuana trafficking investigation. Upon review of the written plea agreement, we find the following language is controlling:

In addition to agreeing to plead guilty to the above enumerated offenses in the preceding paragraph you hereby promise and agree, if requested by the Commonwealth, to testify truthfully, whenever so requested, about your complete knowledge concerning the involvement of Roberto Mendez, James Victor McCoy, Robert C. Rose, and any other individuals involved in marijuana trafficking of which you were a part and a conspirator. In addition to testifying truthfully on behalf of the Commonwealth at any proceeding relating to this matter, you will cooperate and do all things deemed necessary by Pennsylvania law enforcement authorities, including but not limited to being present for any interviews that may be necessary to take of you regarding your knowledge surrounding this marijuana trafficking conspiracy or be required relating to these offenses to which you are pleading guilty. Your sentencing on your guilty plea to your offenses enumerated in this letter will be deferred until such time as your cooperation with the Commonwealth is no longer required. (Emphasis added.)

We are convinced that the above-quoted language was sufficiently broad enough to have enabled the Commonwealth to compel appellant to testify in any civil forfeiture proceeding arising out of the marijuana trafficking conspiracy. However, the Commonwealth also included in the plea agreement a very specific time limitation to appellant’s mandatory cooperation: once appellant was sentenced, he was no longer obligated to cooperate with the Commonwealth in any proceeding related to this matter.

Although the agreement is ambiguous in that it does not specifically state that appellant cannot be compelled to testify in civil- forfeiture proceedings after sentencing, we will construe this ambiguity against the Commonwealth. See, Krasn, supra; Hall, supra. It is certainly reasonable that appellant believed his mandatory cooperation in “any proceeding related to this matter” ended upon his sentencing. See, Fruehan, supra (in assessing plea agreement, look to what the parties reasonably understood to be the terms of the agreement).

Undoubtedly, the civil forfeiture action against Victor McCoy is related to his criminal prosecution, see, 42 Pa.C.S.A. § 6801(a)(6)(C) (Controlled substance forfeitures), and the Commonwealth, if appellant’s testimony is necessary, should have proceeded against the McCoy’s property before appellant was sentenced. Simply put, it would be a breach of the plea bargain for the Commonwealth to compel appellant to testify in any proceedings, criminal or civil, now that appellant has been sentenced. Cf. Hall, supra (summary judgment in civil penalty case was granted in favor of defendant who had entered pleas in related criminal action and was informed that no other investigations were known to the authorities; government breached plea agreement by filing civil action).

Since we have determined that the Commonwealth has breached (or is about to breach) its plea agreement with appellant, we conclude that appellant did not enter his plea in a knowing and voluntary manner. Cf., Zuber, supra (Commonwealth’s legal inability to fulfill promise made in plea bargain resulted in breach of agreement and defendant’s guilty plea was not knowing and voluntary); Williams, supra (Commonwealth’s act of recommending sentence was a breach of plea agreement whereby Commonwealth agreed to stand mute, and defendant allowed to withdraw guilty plea). We must decide which remedy is best suited for appellant: either to permit him to withdraw his guilty plea or to order specific performance of the plea agreement by the Commonwealth. Herein, appellant merely seeks the benefit of his bargain. Accordingly, we will honor his request by directing the Commonwealth to cease any further attempts to elicit information from appellant concerning events related to his convictions. The Commonwealth agreed that appellant would not be required to testify in matters related to the marijuana trafficking conspiracy after he was sentenced, and, now, it must abide by its agreement as appellant has. See, Santobello, 404 U.S. at 264, 92 S.Ct. at 499; Zuber, supra; Fruehan, supra; Williams, 481 A.2d at 1234, citing, Santobello, 404 U.S. at 267, 92 S.Ct. at 501; Commonwealth v. Walters, 9 D. & C.4th 6 (1990), affirmed, 418 Pa.Super. 638, 606 A.2d 1234 (1991 ), allocatur denied, 530 Pa. 642, 607 A.2d 253 (1992).

Order reversed. Case remanded. Jurisdiction relinquished.

FORD ELLIOTT, J. notes dissent.

      . We treat appellant’s pro se "Petition For Specific Performance Of Plea Agreement” as a petition for post-conviction relief under the terms of the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. Appellant is, in effect, arguing that his guilty plea was unlawfully induced, and, thus, he has proffered a cognizable claim pursuant to 42 Pa.C.S.A. § 9543(a)(2)(iii). Cf., Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976) (post-conviction petition for relief raises cognizable claim where defendant contends his guilty plea was involuntary because of breached plea bargain); Commonwealth v. Shekerko, 432 Pa.Super. 610, 639 A.2d 810 (1994).
      In addition, appellant appears to contend that the evidence was insufficient to sustain his conviction for corrupt organizations, 18 Pa.C.S.A. § 911. Appellant has waived this issue for appellate review by failing to file a motion to withdraw his guilty plea to that charge, failing to file a direct appeal and failing to raise this issue in his original petition now before this court. See generally, 42 Pa.C.S.A. §§ 9543(a)(3), 9544(b).


author: WIEAND, Judge:

text:
    654 A.2d 1174
    COMMONWEALTH of Pennsylvania, v. Miguel COLLAZO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 12, 1994.
    Filed Feb. 24, 1995.

      Robert D. O’Brien, Public Defender, York, for appellant.
    Christy H. Fawcett, Asst. Dist. Atty., York, for Com., appellee.

      Before W1EAND, HUDOCK and HESTER, JJ.
   WIEAND, Judge:

Miguel A. Collazo was tried by jury and was found guilty of possession and delivery of a controlled substance. He was sentenced to serve a term of imprisonment for not less than six (6) years nor more than twelve (12) years. After post-sentence motions had been denied, Collazo filed this appeal in which he argues that the trial court committed reversible error by: (1) failing to suppress a packet of heroin found in the vehicle seized by police following his arrest; and (2) allowing improper hearsay testimony regarding a signal which was given by an informant to signify that a drug transaction had occurred. After careful review, we affirm the judgment of sentence.

On August 12, 1993, at or about 2:20 p.m., members of the York County Drug Task Force met with Jack Fisher, an informant, to finalize details for an undercover purchase of narcotics to be made by Fisher. He was searched by police to make certain that he had no drugs on his person, and he was then provided with $390 in bills whose serial numbers had been pre-recorded by the police. Fisher was instructed by police to drop the newspaper which he was carrying as a signal that the drug transaction had been completed. Fisher was then transported to a location near Thaxton Park in the City of York, where the drug transaction was to take place.

Fisher was observed constantly by members of the task force, who were concealed at various surveillance positions throughout the area. Shortly after Fisher entered the park, police observed appellant arrive in a black and silver Mercury automobile, which he parked nearby. Appellant entered the park, talked with Fisher briefly, and then returned to his vehicle, where he appeared to open the glove compartment. Appellant then returned to the park and again met with Fisher. Police observed appellant hand an object to Fisher, in return for which Fisher handed money to appellant; and when appellant walked away, Fisher dropped the newspaper. All members of the task force were immediately informed via police radio, and appellant was apprehended. At that time police seized from appellant’s person $830 of the pre-recorded currency which had been supplied to Fisher. After the transaction had been completed, Fisher gave police sixteen packets of heroin, together with the unused $60 in pre-recorded currency.

After appellant had been arrested, police seized the vehicle which he had driven to the park. The vehicle was transported to the Schaad Detective Agency, which had an impound lot used by the police to store seized vehicles. When appellant told police that he owned the vehicle but had registered it in another person’s name, the police contacted Edward Gumper, an employee of the detective agency, and asked him to check the vehicle’s identification number. When Gumper was unable to read the vehicle identification number, he looked inside the vehicle for an owner’s card or registration papers. While doing so, he found a packet of heroin stamped “Full Power.” This was the same label as appeared on the sixteen packets of heroin which Fisher had turned over to police after engaging in the transaction with appellant. Gumper informed police of his discovery, and they took possession of the evidence.

At trial, appellant objected to testimony by Gumper on grounds that Gumper had conducted an illegal warrantless search of appellant’s vehicle. A lengthy side bar conference ensued, during which the court heard testimony and the arguments of counsel. At the conclusion thereof, the court held as follows:

All right. The Court refuses the motion to suppress, which, in effect, what the Court is treating that as at this late date, first of all, we find the issue has been waived by the failure of defense counsel to file a motion to suppress prior to trial; and secondly, find that this was a component of an inventory search, that as part of the inventory one would both determine what was in the vehicle, but would also determine who owned the vehicle, so that proper notification could be given to the person who owned the vehicle.
And, therefore, we find that the heroin which was found was in plain view after the lifting up of the tray holding the papers, that was permissible for him to do so to attempt to find an owner’s card and thereby determine the ownership of the vehicle, and, therefore, we refuse the motion to render that testimony inadmissible.

Trial Transcript at pp. 97-99.

Pa.R.Crim.P. 323 provides in pertinent part:

Rule 323. Suppression of Evidence
(a) The defendant or his attorney may make a motion to the court to suppress any evidence alleged to have been obtained in violation of the defendant’s rights.
(b) Unless the opportunity did not previously exist, or the interests of justice otherwise require, such motion shall be made only after a case has been returned to court and shall be contained in the omnibus pretrial motion set forth in Rule 306. If timely motion is not made hereunder, the issue of suppression of such evidence shall be deemed to be waived.

It has been held, therefore, that the “failure to raise a suppression issue prior to trial preclude^] its litigation for the first time at trial, in post-trial motions or on appeal.” Commonwealth v. Scaine, 337 Pa.Super. 72, 75, 486 A.2d 486, 487 (1984). See also: Commonwealth v. Smith, 524 Pa. 72, 83-84, 569 A.2d 337, 342-343 (1990); Commonwealth v. Schneider, 386 Pa.Super. 202, 211, 562 A.2d 868, 872-873 (1989); Commonwealth v. Wright, 354 Pa.Super. 120, 122, 511 A.2d 217, 218 (1986); Commonwealth v. Throckmorton, 241 Pa.Super. 62, 66-67, 359 A.2d 444, 446-447 (1976). Instantly, appellant did not file a pre-trial suppression motion seeking to exclude the packet of heroin found in his vehicle. Therefore, “any objection to the admissibility of the evidence on constitutional grounds is deemed waived under Rule 323(b).” Commonwealth v. Williams, 454 Pa. 261, 263, 311 A.2d 920, 921 (1973). See also: Commonwealth v. Johnson, 484 Pa. 545, 553-554, 400 A.2d 583, 587 (1979) (Opinion in Support of Affirmance); Commonwealth v. Goggans, 455 Pa. 606, 607-608, 317 A.2d 222, 223 (1974); Commonwealth v. Duden, 326 Pa.Super. 73, 88-89, 473 A.2d 614, 622 (1984); Commonwealth v. Weyman, 235 Pa.Super. 116, 118-121, 339 A.2d 78, 80-81 (1975), cert. denied, 423 U.S. 947, 96 S.Ct. 363, 46 L.Ed.2d 282 (1975); Commonwealth v. Williams, 230 Pa.Super. 259, 261, 326 A.2d 420, 421 (1974); Commonwealth v. Porter, 229 Pa.Super. 314, 320, 323 A.2d 128, 131 (1974); Commonwealth v. Valle, 227 Pa.Super. 191, 194, 323 A.2d 74, 76 (1974).

Moreover, appellant’s belated suppression motion was clearly lacking in substantive merit. In Commonwealth v. Nace, 524 Pa. 323, 571 A.2d 1389 (1990), cert. denied, 498 U.S. 966, 111 S.Ct. 426, 112 L.Ed.2d 411 (1990), the Pennsylvania Supreme Court stated:

[IJnventory searches are a well-defined exception to the warrant requirement of the Fourth Amendment and are a recognized part of our law:
... it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station house incident to booking and jailing the suspect. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. Indeed, we have previously established that the inventory search constitutes a well-defined exception to the warrant requirement. See South Dakota v. Opperman, supra [428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) ].
An inventory search is not designed to uncover criminal evidence. Rather, its purpose is to safeguard the- seized items in order to benefit both the police and the defendant. We have recognized inventory searches in the two areas of automobiles and booking procedures. See, Scott; Commonwealth v. Daniels, 474 Pa. 173, 377 A.2d 1376 (1977).
Four goals underlie such searches. First, they protect the defendant’s property while he is in .custody; second, police are protected against theft claims when defendants are given their property upon release; third, they serve to protect the police from physical harm due to hidden weapons; and fourth, when necessary they ascertain or verify the identity of the defendant. Intrusions into impounded vehicles or personal effects taken as part of the booking process are reasonable where the purpose is to identify and protect the seized items.
As long as the search is pursuant to the caretaking functions of the police department, the conduct of the police will not be viewed as unreasonable under the Constitution. See [Commonwealth v. Scott, 469 Pa. 258 at 267, 365 A.2d 140 at 144. (1976) ]

Id. at 327-328, 571 A.2d at 1391. The Superior Court has observed that “two factors must be present in order to justify the reasonableness of an inventory search in the absence of probable cause. The Commonwealth must show: (i) that the vehicle in question was lawfully within the custody of the police, and (2) that the search was in fact an inventory search pursuant to the objectives laid down in [South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).]” Commonwealth v. Germann, 423 Pa.Super. 393, 403, 621 A.2d 589, 594 (1993), citing Commonwealth v. Brandt, 244 Pa.Super. 154, 366 A.2d 1238 (1976). The Court, in Commonwealth v. Germann, supra, observed further that “ ‘motive’ is the sole factor which distinguishes a criminal investigatory search from a noncriminal inventory search of an automobile.” Id. at 404, 621 A.2d at 595, citing United States v. Abbott, 584 F.Supp. 442 (W.D.Pa.1984).

In the instant case, it is clear that the vehicle which had been operated by appellant was lawfully seized and impounded by police. Under 75 Pa.C.S. § 3352(c)(3), police could remove to a garage or place of safety any vehicle found after “[t]he person driving or in control of the vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before an issuing authority without unnecessary delay.” 75 Pa.C.S. § 3352(c)(3). Here, the vehicle had been seized by police after appellant’s arrest for selling heroin to the informant. The motive for the subsequent search of the vehicle was solely to identify its owner and not to uncover evidence of crime. The search, therefore, was within the caretaking function of the police, and, as such, was properly conducted without a warrant.

Several members of the Drug Task Force testified at trial about the informant’s dropping of a newspaper as a signal that the drug transaction had been completed. Appellant objected to the testimony on grounds that it was hearsay. The court overruled the objection. Appellant contends that this was error.

“A ‘hearsay’ statement is an out-of-court statement offered in court to prove the truth of the matter asserted.” Commonwealth v. Ballard, 430 Pa.Super. 109, 114, 633 A.2d 641, 644 (1993). See also: Commonwealth v. Smith, 436 Pa.Super. 277, 285, 647 A.2d 907, 911.(1994); Commonwealth v. Michaux, 360 Pa.Super. 452, 461, 520 A.2d 1177, 1181 (1987). “[A] settled point of evidence law is the rule that out-of-court non-verbal conduct does constitute an extrajudicial declaration if it functions as a communication, and is therefore hearsay, if introduced to prove the truth of the fact asserted.” L.W.B. v. Sosnowski 117 Pa.Commw. 120, 126, 543 A.2d 1241, 1244 (1988) (en banc). See: Federal Rule of Evidence 801(a)(2) and (c); McCormick on Evidence, Volume 2, Ch. 24, § 250 (4th ed. 1992); Packel and Poulin, Pennsylvania Evidence, Ch. VIII, § 801 (1987). See also: Commonwealth v. Rush, 529 Pa. 498, 504-505, 605 A.2d 792, 795 (1992); B.G. v. Commonwealth, Department of Public Welfare, 132 Pa.Commw. 563, 566, 573 A.2d 672, 673 (1990); G.W.K. v. Commonwealth, Department of Public Welfare, 125 Pa.Commw. 512, 517-518, 558 A.2d 151, 153-154 (1989).

However, “[i]t is well-settled that an out-of-court statement offered to explain a course of conduct is not hearsay.” Commonwealth v. DeHart, 512 Pa. 235, 254, 516 A.2d 656, 666 (1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987). See also: Commonwealth v. Brown, 538 Pa. 410, 423, 648 A.2d 1177, 1183-1184 (1994); Commonwealth v. Cruz, 489 Pa. 559, 565, 414 A.2d 1032, 1035 (1980). The Superior Court has observed that:

This Court has repeatedly upheld the introduction of out-of-court statements for the purpose of showing that based on information contained in the statements, the police followed a certain course of conduct that led to the defendant’s arrest. Commonwealth v. Matthews, 314 Pa.Super. 38, 460 A.2d 362 (1983) (out-of-court statement that contraband was in certain apartment and that Matthews had put it there); Commonwealth v. Stewart, 304 Pa.Super. 382, 450 A.2d 732 (1982) (contents of phone call to police from residence where victim’s body discovered; defendant found leaving premises); Commonwealth v. Ryan, supra [253 Pa.Super. 92, 384 A.2d 1243 (1978) ] (plurality opinion) (police radio calls referring to unrelated holdups); Commonwealth v. Smith, 250 Pa.Super. 436, 378 A.2d 1015 (1977) (allocatur refused), cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978) (declarant told officer he could place bets by calling defendant’s telephone number); Commonwealth v. Tselepis, 198 Pa.Super. 449, 181 A.2d 710 (1962) (allocatur denied) (informant tip that defendant was conducting a lottery); see also Commonwealth v. Sampson,, 454 Pa. 215, 311 A.2d 624 (1973) (alleged co-conspirator’s denial of involvement offered to show why police did not arrest him); [Commonwealth v. Lewis, supra, 314 Pa.Super. 298, 460 A.2d 1149 (1983) ] (admission of out-of-court statement that set wheels in motion for defendant’s capture); State v. McIntosh, 635 S.W.2d 370 (Mo.Ct.App.1982) (phone call identifying defendant admitted to show course of conduct leading to her apprehension); see generally 6 J. Wigmore, Evidence §§ 1788-89 (Chadbourn rev. 1976) (declarations as circumstantial evidence).

Commonwealth v. Underwood, 347 Pa.Super. 256, 261, 500 A.2d 820, 822-823 (1985). See also: Commonwealth v. Sneed, 514 Pa. 597, 606-607, 526 A.2d 749, 754 (1987); Commonwealth v. Rivera, 409 Pa.Super. 120, 129-130, 597 A.2d 690, 695 (1991).

The Pennsylvania Supreme Court has cautioned that such course of conduct testimony must bear close scrutiny prior to being admitted into evidence. The Court said:

Nevertheless, it cannot be said that every out-of-court statement having bearing upon subsequent police conduct is to be admitted, for there is great risk that, despite cautionary jury instructions, certain types of statements will be considered by the jury as substantive evidence of guilt. Further, the police conduct rule does not open the door to unbounded admission of testimony, for such would nullify an accused’s right to cross-examine and confront the witnesses against him.
Clearly, there is need for a balance to be struck between avoiding the dangers of hearsay testimony and the need for evidence that explains why police pursued a given course of action. This balancing process is governed by the sound discretion of the trial court, and, as with other evidentiary decisions, the trial court’s decision will be upheld on appeal unless there has been an abuse of that discretion. See Commonwealth v. Hart, 479 Pa. 84, 87, 387 A.2d 845, 847 (1978) (trial court’s discretion on evidentiary rulings).

Commonwealth v. Palsa, 521 Pa. 113, 118-119, 555 A.2d 808, 810-811 (1989). See also: Commonwealth v. Yates, 531 Pa. 373, 375-377, 613 A.2d 542, 543-544 (1992); Commonwealth v. Thomas, 396 Pa.Super. 92, 101-104, 578 A.2d 422, 426-428 (1990).

Upon carefully reviewing the record in this case, we are satisfied that the trial court did not abuse its discretion or commit an error of law. Testimony by police that the informant had been instructed to give a signal when the drug transaction was consummated and that he dropped a newspaper, the agreed upon signal, was not introduced to prove that appellant had, in fact, sold heroin to the informant. Rather, it was introduced to explain the course of conduct followed by police when they moved in to apprehend the appellant and place him under arrest. The officers’ testimony was based upon their own personal knowledge of the instructions which had been given to the informant and the action of the informant which they had observed. The trial court, moreover, instructed the jury that it was to determine the meaning of the informant’s dropping of the newspaper from all of the evidence in the case, and not merely conclude that a drug transaction had occurred because a pre-arranged signal had been given. Under these circumstances, the trial court’s evidentiary ruling regarding the informant’s dropping of a newspaper was not error.

Having found no merit in the arguments advanced by appellant, the judgment of sentence is, as it must be,

Affirmed.

      . The informant did not testify at appellant’s trial, as he had absconded and could not be found by police.

      . This instruction was given as follows:
      THE COURT: It's up to the jury to determine whether there is sufficient testimony to indicate what Mr. Fisher was doing when he dropped the newspaper.
      We understand there's testimony about the prearranged signal. The question is whether the dropping of the newspaper was in response to that agreement or whether there is some other explanation. Obviously, if he just dropped it because it slipped out of his hand, then it wouldn't be a signal.
      So it’s up to you to determine whether there’s been sufficient testimony to show that his dropping of the newspaper was part of the prearranged signal that indicated that a drug buy had occurred.
      Trial Transcript at p. 125.


text:
    654 A.2d 1179
    In the Interest of Kimani Jaja DIXON. Appeal of Kimani Jaja DIXON.
    Superior Court of Pennsylvania.
    Submitted Dec. 19, 1994.
    Filed Feb. 24, 1995.

      Linda F. Gerencser, Asst. Public Defender, Lancaster, for appellant.

      Joseph C. Madenspacher, Dist. Atty., Lancaster, for Com., participating party.
    Before ROWLEY, P.J., and WIEAND and CERCONE, JJ.
   WIEAND, Judge:

On June 15, 1994, Kimani Jaja Dixon was adjudicated delinquent, based on charges of aggravated assault and recklessly endangering another person. These charges arose from Dixon’s alleged firing of several shots into a van operated by Angel Penzort in the City of Lancaster on the evening of April 28, 1994. A dispositional hearing was held on July 5, 1994, and Dixon was ordered committed to a secure juvenile facility, subject to review in six months, and to make restitution and pay the costs of prosecution. On direct appeal, Dixon argues that the juvenile court erred by unduly restricting his cross-examination of the victim regarding potential bias or motive to testify falsely. In so doing, he argues, the court violated his constitutional right to confront his accuser. After careful review, we reverse the dispositional order of the juvenile court and remand for a new adjudicatory hearing.

At the adjudicatory hearing in this case, the victim, Angel Penzort, identified appellant as one of the two persons who had been firing handguns into the van which Penzort had been driving. Appellant testified on his own behalf and denied taking part in the shooting. He said he had probably been with friends at another location when the shots were fired. The juvenile court, sitting as the trier of fact, found the victim’s testimony to be credible and did not believe appellant’s denial of involvement. During the hearing, the court limited attempts to cross-examine the victim concerning criminal charges then pending against him. These charges, the defense sought to show, may have demonstrated bias or a motive to testify falsely in the hope of receiving favorable treatment on the outstanding criminal charges against the victim. This occurred as follows:

Q Do you belong to a gang?
A Nope.
Q You don’t? You’re currently incarcerated, isn’t that correct?
' A Yes.
Q Drug charges?
A Yes.
Q You’re a drug dealer?
A Not really. For my own use.
Q You had a scuffle with police also, didn’t you?
MR. HACKMAN [Assistant District Attorney]: I object • at this point, Judge, on relevance.
MR. ENCARNACION [Defense Counsel]: Bias, Your Honor.
THE COURT: I’m sorry?
MR. ENCARNACION: Bias.
MR. HACKMAN: Judge, as far as I know, aggravated assault or resisting arrest is not a crimen falsi crime.
THE COURT: I can’t hear what you said.
MR. HACKMAN: It’s not a crimen falsi crime, Judge. He is trying to impeach him on other bad acts that he may be involved in.
MR. ENCARNACION: Therefore, it’s bias, Your Honor. The fact that he is facing charges.
THE COURT: Well, those are just — he hasn’t been convicted of anything yet.
MR. ENCARNACION: But he might be.
THE COURT: But the fact that he is arrested is not a basis for impeachment. He is in prison. You brought that out. All right. There is an objection. We’ll sustain it.
BY MR. ENCARNACION:
Q Has anybody from the District Attorney’s Office offered you anything in exchange for your testimony?

A No.

N.T. June 15, 1994, at pp. 14-16.

“The scope and limits of cross-examination are largely within the discretion of the trial court and its actions pertaining thereto will not be reversed in the absence of a clear abuse of its discretion or error of law.” Commonwealth v. Buehl, 510 Pa. 363, 388, 508 A.2d 1167, 1179 (1986), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988). See also: Commonwealth v. Wilson, 538 Pa. 485, 505, 649 A.2d 435, 445 (1994); Commonwealth v. Snoke, 525 Pa. 295, 305, 580 A.2d 295, 300 (1990). Nevertheless, “[cjriminal defendants have a constitutional right to confront witnesses against them, which includes the right to cross-examine. Cross-examination may be employed to test a witness’ story, to impeach credibility, and to establish the witness’ motive for testifying.” Commonwealth v. Robinson, 507 Pa. 522, 526, 491 A.2d 107, 109 (1985), citing Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). It is well established, therefore, “that a witness may be cross-examined as to any matter tending to show the interest or bias of that witness.” Commonwealth v. Nolen, 535 Pa. 77, 83, 634 A.2d 192, 195 (1993) (footnote omitted). See also: Commonwealth v. Butler, 529 Pa. 7, 14, 601 A.2d 268, 271 (1991); Commonwealth v. Williams, 524 Pa. 218, 228, 570 A.2d 75, 80 (1990); Commonwealth v. Coades, 454 Pa. 448, 452-453, 311 A.2d 896, 898 (1973). “It is particularly important that, where the determination of a defendant’s guilt or innocence is dependent upon the credibility of a prosecution witness, an adequate opportunity be afforded to demonstrate through cross-examination that the witness is biased.” Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992). See also: Commonwealth v. Lane, 533 Pa. 276, 279-280, 621 A.2d 566, 568 (1993); Commonwealth v. Reed, 435 Pa.Super. 36, 44^8, 644 A.2d 1223, 1227-1228 (1994) (plurality opinion).

Thus, in Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), the Pennsylvania Supreme Court declared:

[Wjhenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.
The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury’s determination of the case.

Id. at 224-225, 512 A.2d at 631-632 (footnote omitted). See also: Commonwealth v. Gentile, 433 Pa.Super. 381, 387-389, 640 A.2d 1309, 1313-1314 (1994); Commonwealth v. Rhodes, 405 Pa.Super. 570, 573-575, 592 A.2d 1360, 1361-1362 (1991). Similarly, the Superior Court has observed:

As a general rule, defense counsel must be permitted to cross-examine a Commonwealth witness on possible favorable treatment or expectations of such favorable treatment in exchange for testimony for the prosecution. Failure to allow cross-examination to reveal possible bias of this nature is error and will require a new trial unless the error can be shown to have had no impact on the outcome of the case. See Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986); Commonwealth v. Jennings, 405 Pa.Super. 590, 592 A.2d 1370 (1991); Commonwealth v. Blassingale, 391 Pa.Super. 395, 571 A.2d 426 (1990). The principle upon which this rule is premised is that the jury should have the opportunity to consider information concerning possible ulterior motives on the part of the witness in order accurately to assess the witness’ credibility.

Commonwealth v. Culmer, 413 Pa.Super. 203, 212, 604 A.2d 1090, 1094-1095 (1992). See also: Commonwealth v. Battiato, 422 Pa.Super. 285, 296-297, 619 A.2d 359, 364-365 (1993).

Instantly, it is clear that the juvenile court erred by disallowing appellant’s cross-examination of the victim regarding pending criminal charges. These charges were relevant to show that the witness’s testimony may have been biased by an expectation of favorable treatment from the Commonwealth if he testified against appellant. The juvenile court, it appears, confused appellant’s attempt to cross-examine the victim to demonstrate bias with impeachment of a witness’s credibility by evidence of prior convictions in the nature of crimen falsi. A similar error was identified by the Supreme Court in Commonwealth v. Lane, supra, 533 Pa. at 276, 621 A.2d at 566, where the Court said:

The trial court improperly intermingled the concepts of impeachment by prior crimen falsi convictions and impeachment for bias stemming from outstanding criminal charges in the same jurisdiction. Impeachment on the latter basis does not depend on the nature of the offense as one evidencing dishonesty, but on the severity of the penalties attending possible conviction of any type of offense, potentially creating a bias due to a motive to aid in the prosecution in order to obtain concessions in the witness’s pending prosecution.

Id. at 278, 621 A.2d at 567. It was error, therefore, for the juvenile court to conclude that appellant could only impeach the victim’s credibility by showing prior convictions for offenses crimen falsi.

Having concluded that the juvenile court erred in disallowing appellant’s cross-examination of the victim regarding pending criminal charges does not end our inquiry. The decided cases have held that such an error is subject to a harmless error analysis. See: Commonwealth v. Nolen, supra 535 Pa. at 85, 634 A.2d at 196; Commonwealth v. Gentile, supra 433 Pa.Super. at 389-390, 640 A.2d at 1314; Common wealth v. Culmer, supra 413 Pa.Super. at 213-214, 604 A.2d at 1095; Commonwealth v. Jennings, 405 Pa.Super. 590, 597-599, 592 A.2d 1370,1374-1375 (1991). In determining whether an error may be deemed harmless, the Supreme Court has established the following guidelines:

In the seminal case of Commonwealth v. Story, 476 Pa. 391, 406, 383 A.2d 155, 162 (1978), this Court stated that “an error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless.” The burden of establishing that the error was harmless beyond a reasonable doubt rests with the Commonwealth. Id., 476 Pa. at 406 n. 11, 383 A.2d at 162 n. 11.
Error is considered to be harmless where: 1) the error did not prejudice the defendant or the prejudice was de minimis; or 2) the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or 3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict. Id., 476 Pa. at 410-15, 383 A.2d at 164-66.

Commonwealth v. Williams, 524 Pa. 404, 409, 573 A.2d 536, 538-539 (1990). See also: Commonwealth v. Nolen, supra 535 Pa. at 85, 634 A.2d at 196; Commonwealth v. Foy, 531 Pa. 322, 327, 612 A.2d 1349, 1352 (1992). “An error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a reasonable possibility that an error might have contributed to the conviction, the error is not harmless.” Commonwealth v. Rush, 529 Pa. 498, 503, 605 A.2d 792, 794 (1992), citing Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978). See also: Commonwealth v. Crews, 536 Pa. 508, 529-530, 640 A.2d 395, 405-406 (1994); Commonwealth v. Lewis, 528 Pa. 440, 451, 598 A.2d 975, 980-981 (1991).

After careful review, we are unable to conclude, beyond a reasonable doubt, that the error of the juvenile court may not have contributed to the adjudication of appellant’s delinquency. Contrary to the Commonwealth’s suggestion, the evidence of appellant’s guilt was not overwhelming. The determination of his guilt of the charges against him rested primarily upon the juvenile court’s finding of credibility regarding the conflicting testimony given by appellant and the victim. When appellant attempted t'o challenge the victim’s credibility by showing that the victim may have been biased because of pending criminal charges against him, the juvenile court erroneously curtailed such cross-examination. The court misapprehended the applicable law by concluding that the victim could be cross-examined only with respect to convictions for crimen falsi offenses. This error prevented appellant from exploring fully the possible bias of the victim. In a case such as this, where credibility was the central issue to be decided by the fact finder, the error may well have influenced the decision and, therefore, cannot be deemed harmless.

The dispositional order of the juvenile court is reversed and the case is remanded for a new adjudicatory hearing. Jurisdiction is not retained.

      . In a delinquency proceeding, the juvenile has no right to trial by jury. See: McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); In the Interest of Davis, 377 Pa.Super. 46, 51, 546 A.2d 1149, 1152 (1988) (en banc), affirmed by an equally divided court, 526 Pa. 428, 586 A.2d 914 (1991).


author: BECK, Judge. BROSKY, Judge, concurring and dissenting.

text:
      654 A.2d 1183

    Ann E. PERRIGE and Thomas M. Goutman, Appellants, v. Elton HORNING, Mark Herr, Elton Horning Farm Agency, Titus Kurtz and Esther Kurtz.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1994.
    Decided Feb. 15, 1995.

      David E. Sandel, Jr., Philadelphia, for appellants.

      Bryon M. Yatron, Reading, for appellees.
    Before BECK, HUDOCK and BROSKY, JJ.
   BECK, Judge.

Plaintiffs-appellants Anne E. Perrige and Thomas M. Gout-man appeal from an order sustaining the preliminary objections of defendants-appellees Elton Horning, Mark Herr, Elton Horning Farm Agency, Titus Kurtz and Esther Kurtz, and dismissing appellants’ Second Amended Complaint in Equity. We reverse and remand.

In reviewing a dismissal based on preliminary objections in the nature of a demurrer, we must accept all well-pleaded material facts in the complaint, and all reasonable inferences therefrom, to decide whether the law will permit recovery. Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 500 A.2d 470 (1985). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Muhammad v. Strassburger, 526 Pa. 541, 548, 587 A.2d 1346, 1349 (1991).

Under this standard, our review of the record establishes the following relevant facts. Appellees Kurtzes were the owners of a 127.339 acre farm located in Robeson Township, Berks County, Pennsylvania. The Kurtzes retained surveyors to draft plans for the subdivision of the farm into four parcels (Lots 1 through 4). A plan finally was approved by the Robeson Township Planning Commission on or about February 3, 1992, and by the Robeson Township Board of Supervisors on or about February 18, 1992 (the “Plan”). The Plan also was filed of record in the Office of Recorder of Deeds of Berks County. The Plan contains several printed “General Notes” which provide, in relevant part:

2. TOTAL NUMBER OF LOTS 3 + RESIDUE (TO REMAIN FARM USE) A) LOT NO. 4 (RESIDUE) WILL BE USE [sic] FOR AGRICULTURAL USE ONLY.
9. THE RESIDUE LOT WAS AND WILL REMAIN AGRICULTURAL USE, NO WETLAND DELINEATION IS REQUIRED.
10. IF LOT 4 IS SUBDIVIDED OR DEVELOPED IN THE FUTURE WETLAND DELINEATION, STREAM ENCROACHMENT PERMITS ARE REQUIRED. THE 100 YEAR FLOOD PLAIN MUST BE CALCULATED, BOUNDARIES DELINEATED, AND ELEVATIONS PROVIDED.

Beginning in October 1991, the appellants and the Kurtzes entered into an initial Agreement of Sale for the purchase of Kurtzes’ Lot 3. Appellees Horning, Kerr and Elton Horning Farm Agency were the real estate agents involved in the transaction. Appellants allege in their complaint that “[i]n response to direct questions, ... posed at various times, concerning what [the Kurtzes] planned to do with Lot 4, which abuts Lot 3, [appellees] all represented that the Kurtz[es] purchased the Farm because one of the Kurtz sons had graduated from high school and was now farming with his father.” Appellants also allege that the Kurtzes stated they “intended to use Lot 4 for farming purposes only” and that they were “ ‘going to farm Lot 4,’ and other words to that effect.” Second Amended Complaint, paragraph 23. In addition, appellants allege that appellees knew “if Lot 4 were to be used for any purpose other than agricultural, that [appellants] would not purchase Lot 3.” Second Amended Complaint, paragraph 24.

Over the next several months, the settlement date was postponed numerous times, the purchase price was lowered, and several addenda to the original Agreement were executed, to reflect these and other changes. The parties actually closed on June 11, 1992, as reflected by the deed. The deed describes the lot as that “situate in Robeson Township, Berks County, Pennsylvania, bounded and described according to a Final Plan of the Kurtz Subdivision ... dated August 22, 1991 and last revised February 19, 1992.... ”

Furthermore, the parties also executed an “Addendum to Agreement of Sale” which contains several typewritten conditions, some of which have been crossed out or amended in handwriting, and each change was initialled by the Kurtzes and appellants. In pertinent part, these conditions provide:

d. Titus Kurtz shall comply with any and all township requirements imposed as conditions for approval of subdivision of this property.
g. Buyers shall have the right of first refusal to purchase the approximately seventy-five (75) acres or any portion thereof that are contiguous to this property.

Finally, the following language was cancelled through by a handwritten line and initials: “f. Property retained by Titus Kurtz and Esther Kurtz shall be used for agricultural purposes.”

By July 1992, soon after the closing on the sale of Lot 3 to appellants, the Kurtzes allegedly had completed and submitted to Robeson Township a new subdivision plan, which severed two parcels from Lot 4 “for the purpose of creating and selling residential lots.” Second Amended Complaint, paragraph 39 (emphasis in original). Although this plan was not approved, appellees submitted another plan, this one seeking to sever a total of three parcels from Lot 4, one for residential purposes and two for annexation to other neighboring properties. This plan was not approved. Finally, the township approved a third plan, which included the severing of two lots for annexation to the neighboring properties, allegedly not for agricultural purposes. The appellants were not offered the parcels for purchase.

The appellants filed this injunction action to enforce their “right to reside next to the seventy-five (75) acre agricultural parcel,” which right they allegedly purchased when they bought Lot 3 in June 1992. Second Amended Complaint, paragraph 64.

The trial court sustained the appellees’ preliminary objections and dismissed the Second Amended Complaint. In this appeal, the appellants argue that the trial court erred in holding that the local planning agency has exclusive jurisdiction in this land planning matter. Appellants also challenge the court’s decision that they have no standing, and that they have not been injured by appellees’ actions because there are no enforceable restrictive covenants in the contracts executed by the parties. In addition, the appellants assert that the trial court’s ruling that they did not properly plead agency was error, and that the dismissal of the right of first refusal claim was not sought by appellees’ preliminary objections, and therefore was improper. We address each argument in turn.

JURISDICTION

We first review the issue of subject matter jurisdiction, and the trial court’s holding that the Pennsylvania Municipalities Planning Code, 53 Pa.S. § 10101 et seq., vests exclusive jurisdiction over this matter in the Robeson Township Board of Supervisors. The relevant statute provides that the local planning agency “shall have exclusive jurisdiction to hear and render final adjudications in the following matters: .... (2) All applications.... for approval of subdivisions or land developments .... ” 53 Pa.S. § 10909.1(b)(2). We do not view this matter as an “application for approval of subdivision or land development,” but rather as an action to, inter alia, enforce alleged restrictive covenants in a previously approved subdivision plan, and to enjoin the submission of additional plans which may violate those restrictions.

In fact, landowners properly have invoked our courts’ equity jurisdiction to review such matters in the past. In Ballard v. Heppe, 403 Pa.Super. 441, 589 A.2d 266 (1991), app. den., 529 Pa. 630, 600 A.2d 950 (1991), for example, this court held that landowners could enforce by injunction certain unambiguous notes in a subdivision plan relating to future lot sizes. We also have decided that an injunction should issue to protect lot owners who were granted “protective covenants” to preserve the residential nature of a development. Gey v. Beck, 390 Pa.Super. 317, 568 A.2d 672 (1990). See also Doylestown Township v. Teeling, 160 Pa.Commw. 397, 405-07, 635 A.2d 657, 661 (1993) (conditions attached to subdivision plan as part of approval process constitute restrictive covenants running with the land and may be enforced in equity by owners of other lots in subdivision). We must therefore reverse the trial court’s holding on this issue and proceed to review the other grounds for dismissal.

RESTRICTIVE COVENANT

The court further held that the appellants lacked standing to bring this action, and that the Plan Notes, the deed and the Agreement of Sale Addendum did not create restrictive covenants enforceable in equity. We disagree.

It is clear that a deed for land may incorporate by reference the conditions of a subdivision plan, and the plan conditions then become enforceable in equity by the interested deed holder. Reed v. Reese, 473 Pa. 321, 374 A.2d 665 (1976) (plaintiff landowner was entitled to specific relief or damages in action against later purchasers who sought to violate parkland restriction in subdivision plan). In this case, the deed makes express reference to the subdivision plan in its description of the property; the deed states that the subject land is “bounded and described according to a Final Plan of the Kurtz Subdivision.” We must therefore look to the Plan to decide whether its Notes create unambiguous enforceable covenants. Ballard v. Heppe, supra 403 Pa.Super. at 441, 589 A.2d 266.

Notes 2A and 9 on the Plan clearly state that Lot 4, or “the residue lot,” will remain agricultural use. Appellees argue that Note 10, which sets forth certain requirements for any future subdivision of Lot 4, cancels the otherwise explicit agricultural use condition. We disagree because the land may be subdivided and still remain restricted to agricultural use. We perceive no ambiguity in the Plan Notes and, therefore, a restrictive covenant would appear to exist here. In Ballard v. Heppe, supra 403 Pa.Super. at 441, 589 A.2d at 266, similar notes in a subdivision plan were held to create an enforceable restrictive covenant limiting lot size, despite additional plan language which provided for future changes if approved by the planning commission. 403 Pa.Super. at 441, 589 A.2d at 266.

Furthermore, although restrictive covenants generally are disfavored by the law, and through the passage of time or a change in condition of the neighborhood may lose utility, covenants of “recent vintage” certainly may be enforced by the granting of injunctive relief. Gey v. Beck, 390 Pa:Super. at 326-28, 568 A.2d at 677. See also Grasso v. Thimons, 384 Pa.Super. 593, 559 A.2d 925 (1989), app. den., 525 Pa. 612, 577 A.2d 544 (1987) (property owners could enjoin neighbor from violating residential use only restrictive covenant). Conditions such as those contained in the Plan Notes in this case may be enforceable even when the conditions are not specifically set forth in the deed conveying the subject property. See Teeling, supra 160 Pa.Cmwlth. at 397, 635 A.2d at 672.

In addition to the Plan Notes, which were incorporated into the appellants’ deed, the parties also executed an Agreement of Sale and an Addendum thereto, which contained additional terms. Addendum term (d) provides that “Titus Kurtz shall comply with any and all township requirements imposed as conditions for approval of subdivision of this property.” Through this term, as a condition of the sale to appellants, appellee Kurtz affirmed that he would comply with the Plan Notes, including those regarding the agricultural use restriction.

Another relevant addendum term, however, was cancelled. Term (f) provided that “Property retained by Titus Kurtz and Esther Kurtz shall be used for agricultural purposes,” but it was crossed out and initialled by the parties prior to closing. Appellants aver in the Second Amended Complaint that:

25. Immediately prior to [appellants’] execution of the Agreement of Sale, Defendants Kurtz [sic] counsel Campbell, told [appellants] that it was not necessary for the Agreement to contain the agricultural use language since Defendant Kurtz and his son were going to continue to farm the land.
26. Moreover, at that time Defendants Kurtz had already submitted the first version of the Plan to the Robeson Township Planning Commission.... [T]he Plan stated that the land which the Defendants Kurtz were retaining was to remain in farm use only.

Notwithstanding appellants’ attempt to explain the removal of the agricultural use term from the Addendum, it creates, at the very least, an ambiguity.

Restrictive covenants must be construed in light of their language, their subject matter, the intent or purpose of the parties, and the conditions surrounding their execution. Gey v. Beck, 390 Pa.Super. at 323-25, 568 A.2d at 675. Where an ambiguity exists we may consider extrinsic evidence of the parties’ intent. Id. Cf. Grasso v. Thimons, supra 384 Pa.Super. at 597-99, 559 A.2d at 928. However, a court obviously may not make such factual findings of intent at the preliminary objections stage. The lower court did delve into the parties’ intentions in sustaining the preliminary objections, and this was improper. We therefore must reverse the court’s dismissal of appellants’ action on the basis that there was no enforceable restrictive covenant, and remand for further proceedings on this issue.

RIGHT OF FIRST REFUSAL

We next address the trial court’s dismissal of the claim for a right of first refusal. A party may obtain specific performance of a right of first refusal where there is no dispute that the right is valid, that the challenged conveyance was made in derogation of that right, and there is no adequate remedy at law. Warden v. Taylor, 460 Pa. 577, 333 A.2d 922 (1975); Boyd & Mahoney v. Chevron U.S.A., 419 Pa.Super. 24, 614 A.2d 1191 (1992), app. den., 535 Pa. 629, 631 A.2d 1003 (1993). Appellants base their claim to a right of first refusal of Lot 4 on term (g) of the Addendum, which provides “Buyers shall have the right of first refusal to purchase the approximately seventy-five (75) acres or any portion thereof that are contiguous to [Lot 3].” The trial court dismissed the entire Second Amended Complaint without separately discussing the issue of right of first refusal.

Appellants argue that the court improperly disposed of this, issue because appellees’ preliminary objections did not challenge that particular claim. We previously have held that a trial court’s sua sponte assertion of a defense on behalf of a party raising preliminary objections, and thereafter sustaining the preliminary objections, was error and required reversal. Wojciechowski v. Murray, 345 Pa.Super. 138, 497 A.2d 1342 (1985). We hold that the trial court should have allowed the parties to go forward on this issue, since the appellees did not seek to dismiss the complaint on that ground.

AGENCY

Finally, we address the issue of appellants’ allegations against the realtor appellees. The trial court held that agency was not sufficiently pleaded and therefore dismissed these claims. The Second Amended Complaint includes various allegations of conduct by appellees Horning, Herr and Horning Farm Agency in furtherance of the submission of subdivision plans to the planning agency and lot sales to appellants and others. The description of the “agents’ ” conduct is quite specific, and is introduced by the following paragraph:

9. At all times relevant to this case, Horning, Herr, Elton Horning Farm Agency and Attorney David G. Campbell .... acted as the duly authorized agents, servants and/or employees of Titus and Esther Kurtz. Alternatively, Titus and Esther Kurtz, Herr and Campbell acted as agents, servants and employees of Elton Horning and Elton Horning Farm Agency.

R.R. 5. We disagree with the holding below that the allegations of agency were inadequate. Instead, we note that averments of agency generally are considered as admitted facts for the purposes of demurrer, rather than as conclusions of law. Line Lexington Lumber & Millwork, Co. v. Pennsylvania Publishing Corp., 451 Pa. 154, 163, 301 A.2d 684 (1973).

Moreover, the allegations of agency in this case meet the standard set forth in Alumni Ass’n v. Sullivan, 369 Pa.Super. 596, 535 A.2d 1095 (1987), aff'd, 524 Pa. 356, 572 A.2d 1209

(1990). Sullivan requires that, at a minimum, the complainant allege facts which “(1) identify the agent by name or appropriate description; and (2) set forth the agent’s authority, and how the tortious acts of the agent either fell within the scope of that agency, or if unauthorized, were ratified by the principal.” 369 Pa.Super. at 605, 535 A.2d at 1100. In this case, it is clear from the complaint who the alleged agents are, and that they apparently were acting through their authority as realtors for the sellers, appellees Kurtzes. Therefore, we reverse the trial court’s decision on this issue as well.

Reversed and remanded for further proceedings. Jurisdiction relinquished.

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

BROSKY, Judge, concurring and dissenting.

I agree with the majority that the trial court had subject matter jurisdiction to enforce the restrictive covenant and that appellants had standing to institute suit against appellees. I also agree with the majority that the trial court erred in sua sponte dismissing appellants’ request for relief to enforce their right of first refusal, as appellees never requested dismissal on this basis in their preliminary objections. Further, I agree that appellants have set forth sufficient facts establishing an agency relationship between the Kurtzes and the other appellees. I accordingly join in the majority’s disposition of these matters. However, I find it unnecessary to discuss the terms of the addendum to the parties’ agreement of sale and any ambiguities created thereby. Hence, I write separately with respect to this issue.

The majority correctly recognizes that appellants’ deed specifically references the subdivision plan, thereby incorporating the covenant into the deed even though it is not specifically set forth therein. See Majority opinion, ante at 40. The plan notes expressly provide that Lot 4, which is otherwise described therein as the residue, is “to remain farm use,” and that it “will be use[d] for agricultural use only.” As noted by the majority, this statement thus appears to create an unambiguous restrictive covenant regarding the use of lot 4. Majority opinion, ante at 40. A review of appellant’s complaint further reveals that appellants are seeking to enforce the covenant, as incorporated into their deed, rather than the terms of a prior separate agreement. See Second Amended Complaint at paragraphs 33, 34, 65 and 68. Under these circumstances, appellants were not required to raise the merger doctrine with respect to the restrictive covenant, because the merger rule does not affect their right to enforce the covenants incorporated into or contained in their deed. See Elderkin v. Caster, 447 Pa. 118, 124 n. 11, 288 A.2d 771, 774 n. 11 (1972) (merger doctrine holds that all warranties and representations in connection with a sale or other transaction made prior to or contemporaneous with a deed are merged into the deed and that unless therein expressly provided for, they are forever lost); Valvano v. Galardi, 363 Pa.Super. 584, 592 n. 2, 526 A.2d 1216, 1220 n. 2 (merger doctrine provides that as a general rule an agreement of sale merges into the deed and no recovery may be had based upon an earlier agreement; the merger rule does not apply where the expressed intention of the parties is to the contrary nor does it apply as to matters intended not to be consummated by the deed issued pursuant to it and which are collateral to the deed).

Despite its discussion of the restrictive covenant issue and cognizance of the merger doctrine, the majority nonetheless proceeds to discuss paragraph d of the addendum to the parties’ agreement of sale and an alleged ambiguity created by the removal of paragraph f therefrom. Majority opinion, ante at 40-41. In support of its decision to consider the addendum, the majority cites Valvano v. Galardi, supra 363 Pa.Super. at 584, 526 A.2d 1216, and Shawnee Lake Association v. Uhler, 131 Pa.Super. 146, 198 A. 910 (1938) for the proposition that the merger rule does not preclude enforcement of matters which the parties intended not to be consummated by the deed or which are collateral thereto. See Majority opinion, ante at 40 n. 5. Although the proposition of law is correctly stated, these decisions are distinguishable from the instant case. Here, the provisions of the addendum, insofar as they relate to the restrictive covenant, cannot be construed as being collateral to the deed because the deed has incorporated the terms of the restrictive covenant by reference. Compare Valvano v. Galardi, 363 Pa.Super. at 592 n. 2, 526 A.2d at 1220 n. 2 (easement set forth in addendum to agreement of sale did not merge with the deed because the parties expressed an intent to the contrary and the terms of the easement disclosed that it was clearly collateral to the deed); Shawnee Lake Association v. Uhler, 131 Pa.Super. at 152-153, 198 A. at 913 (parties did not intend restrictive covenant contained in a separate agreement to merge with and be superseded by the deed, where none of the lot owners’ deeds contained the restrictive covenant). Because those provisions of the addendum concerning the restrictive covenant merged with and are not collateral to the deed, consideration of paragraphs d and f of the addendum is unnecessary, and any alleged ambiguities created thereby are irrelevant. I therefore am unable to join in the majority’s discussion of this matter.

      . In response to earlier preliminary objections, appellants amended their initial Complaint and their First Amended Complaint.

      . An earlier complaint included an allegation that the Kurtzes "presently” intended to farm the residue lot 4. According to appellees, this proves they did not make any promises about future use. Appellees base this conclusion on the proposition that allegations in previous complaints still are applicable as admissions even where the complaint subsequently has been amended or superseded. Stewart v. Hooks, 372 Pa. 542, 544-45, 94 A.2d 756, 757 (1953).

      . Appellants opposed this new plan before the township representatives.

      . We do not completely understand this decision by the trial court. It appears to hold that, because the subject land has not yet been put to non-agricultural use, the appellants háve not yet suffered a cognizable injury. However, the prevention of injury is in fact the goal of injunctive relief.

      . Generally, an agreement of sale merges into the deed and no recovery may be had based on the earlier agreement. Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972); Valvano v. Galardi, 363 Pa.Super. 584, 526 A.2d 1216 (1987). Although neither the parties nor the court below raised the merger question with regard to the restrictive covenant issue, we do not consider it waived; in this appeal from the grant of a demurrer, we must determine whether the law allows recovery under the facts alleged. Baker, supra 347 Pa.Super. at 188, 500 A.2d 470. Nonetheless, an agreement of sale is not merged as to matters not to be consummated by the deed, or which are collateral to it, such as future use of an easement (Valvano, supra) or enforcement of a restrictive covenant. Shawnee Lake Assn. v. Uhler, 131 Pa.Super. 146, 198 A. 910 (1938) (restrictive covenant regarding use of property contained in agreement transferring property did not merge into deed and covenant remained enforceable).

      . Appellees make much of the "admission” by appellants in an earlier complaint that the Kurtzes merely "presently” intended to farm Lot 4, and that the Kurtzes therefore did not make any promises about future use. See footnote 2, supra. We note, however, that the intent of the parties at the time of contracting is crucial to the construction of the contract terms. Gey v. Beck, supra. Therefore, appellees’ argument on this issue is not persuasive.

      . We note that appellants’ Second Amended Complaint includes no allegation that the lots sold by the Kurtzes to other neighbors for annexation purposes under the newest subdivision plan are "contiguous” to Lot 3. This is an express requirement of the right of first refusal; a broader right of first refusal of all "the remaining acreage” was removed from the Addendum to the Agreement of Sale. R.R. 23.

      . We are unconvinced by the appellees’ argument that their preliminary objections sought dismissal of the entire complaint, despite their failure to raise any specific objections regarding the claimed right of first refusal. Preliminary objections in the nature of a demurrer seek drastic relief, and courts therefore should not presume the existence of unenumerated attacks on the complaint.

      . The only issue before this court is whether the chancellor erred in sustaining appellees’ demurrer and dismissing appellants' complaint. Consequently, nothing in this court’s disposition should be construed as a final adjudication on the merits of the case. Rather, resolution of the issues regarding the existence of an unambiguous and enforceable restrictive covenant are for the chancellor to determine in light of the evidence presented by the parties and the applicable law.