text:
    450 A.2d 212
    Commonwealth v. Webb, Appellant.
    Submitted September 9, 1981.
    Hardy Williams, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    450 A.2d 212
    Commonwealth v. West, Appellant.
    Submitted June 23, 1982.

      Elaine DeMasse, Assistant Public Defender, for appellant; Nancy Dena Wasser, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Leonard A. Ivanoski is affirmed.


text:
    450 A.2d 213
    Commonwealth v. Williams, Appellant.
    Submitted April 5, 1982.
    Paul S. Herzberg, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.

CAVANAUGH, J., concurred in the result.


text:
    450 A.2d 213
    Cranston, etc. v. Anderson Equipment et al., Appellants.

      Argued November 9, 1981.
    John M. Wolford, for appellant; James T. Marnen, for appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   Judgment affirmed.


text:
    450 A.2d 213
    Cruse v. Woods, et al. Long, et al. v. Woods, et al. Appeal of Robert Woods.
    Argued April 13, 1982.
    Alan Frank, submitted a brief on behalf of appellant; J. McBride, for appellees.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Order and judgment affirmed.


text:
    450 A.2d 214
    Devlin v. Mullen, et al. Appeal of Patrick Mullen and Margaret Mullen. Appeal of General Motors Corporation. Appeal of Reedman Corporation.
    Argued March 29, 1982.
    James M. Marsh, for appellants (at Nos. 1884 and 1977) and for appellees (at No. 1891); William V. Coleman, for appellant (at No. 1891) and for appellee (at Nos. 1884 and 1977).
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 214
    Estate of Scholl. Appeal of Scholl.
    Petition for Allowance of Appeal Denied Nov. 29, 1982.
    Argued January 25, 1982.
    Irwin S. Rubin and M. Paul Smith, for appellant; Marvin L. Wilenzik, for Isaac Scholl, participating party; Allen R. Keely, for Sarah and Willard Scholl, participating parties; Elvin R. Souder, for Leidy Scholl, participating party.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Order affirmed.


text:
    451 A.2d 1043
    Giovannitti, etc., Appellant v. Robinson, et al. Paul v. Robinson, et ux. Appeal of: Francis Giovannitti a/k/a Frank Giovannitti.
    Reargument Denied Nov. 10, 1982.
    Petition for Allowance of Appeal Denied March 21, 1983.

      Argued April 14, 1982.
    Maurice A. Nernberg, Jr., submitted a brief on behalf of appellant; Edward I. Goldberg, for Robinson, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Orders afirmed.


text:
    450 A.2d 214
    Hanczar, etc., Appellants v. St. Peter & Paul Church.
    Argued April 14, 1982.
    John F. Cambest, for appellants; John A. Metz, Jr., for appellees.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 214
    Johnson v. Johnson, Appellant.
    Submitted January 27, 1981.
    Richard F. Stevens, for appellant; Joel M. Scheer, for appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   Order affirmed.


text:
    450 A.2d 215
    Johnson, Appellant v. Williams, et al.
    Submitted October 5,1981.
    Jay I. Bomze, for appellant; Ronald A. Smith, for Williams, appellee; Mary Louise Dansigny, for O’Neill, et al., appellees.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge John J. McDevitt, III is affirmed.


text:
    450 A.2d 215
    Markey v. Stahl Headers, Appellant.
    Argued March 23, 1982.
    Samuel M. Learned, for appellant; John R. Gailey, for appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 215
    Mosco v. Mosco, Appellant.

      Argued April 12, 1982.
    Allen N. Brunwasser, for appellant; Catherine T. Martin, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   No. 312 affirmed, No. 462 quashed, No. 1079 vacated.


text:
    450 A.2d 216
    Muhammad v. Woodhaven Condominium Assoc., Appellant.
    Submitted May 12, 1982.
    Howard Gershman, for appellant; Khalil " Muhammad, appellee, in propria persona.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   Order affirmed.


text:
    450 A.2d 216
    Noland, Appellant v. Noland.
    Argued March 23, 1982.
    John R. Miller, for appellant; Richard Lee Gingrich, for appellees.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 216
    Penn Cent’l Bank v. Ewing, et al. Appeal of E. Dean Keith.
    Argued January 7, 1982.
    R. Merle Heffner, for appellant; David Alan Ody, for appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   The order of the lower court is hereby affirmed.


text:
    451 A.2d 562
    Pennsylvania Electric Co., et al., Appellants v. Echnoz, et ux.
    Reargument Denied Oct. 28, 1982.
    Petition for Allowance of Appeal Denied March 3, 1983.
    Argued November 10, 1981.
    Wayne A. Kablack, for appellants; H.H. Heilman, Jr., for appellees.
    Before BECK, JOHNSON and POPOVICH, JJ.
   The order of June 8, 1981, is affirmed.


text:
    450 A.2d 216
    Rosedale Memorial Park, Inc., Appellant v. Wilson, et al.
    Argued May 4, 1982.
    Jerry Leonard Cohen, for appellant; Bruce Fox, for appellees.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   The order of the lower court is hereby affirmed.


text:
    450 A.2d 217
    Hunterdon Bank, Appellant v. Penn Franklin Corp.
    Argued January 5, 1982.
    Carl L. Lindsay, for appellant; Richard Wolfe, for appellees.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   The order of the lower court is affirmed.


text:
    450 A.2d 217
    Van Soest, Appellant v. Hanover Ins. Co.

      Argued June 21, 1982.
    James L. Wormer, for appellant; Robert B. Mulhern, Jr., for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   We affirmed the order of the learned Philadelphia County Common Pleas Court Judge Charles P. Mirarchi, Jr. that opened the default judgment and directed that the answer and new matter of defendant attached to defendant’s motion be deemed filed of record.


text:
    450 A.2d 217
    Wilson v. Wilson, Appellant.
    Submitted January 27, 1981.
    John P. Campana, for appellant; William A. Hebe, for appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   Order affirmed.


text:
    454 A.2d 147
    Zueco, et ux. v. Halsted, et ux., Appellants.
    Argued November 13, 1980.
    John W. Pollins, III, for appellants; Thomas Anton, for appellees.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    August 27, 1982.
    450 A.2d 218
    Buchart-Horn v. Grenoble et al. Appeal of Barton A. Pasternak.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.
    Argued September 22, 1981.
    Walter W. Wilt, for appellant; Jerome T. Foerster, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   The order of the learned Dauphin County Common Pleas Court Judge Warren G. Morgan is affirmed.


text:
    450 A.2d 218
    Carbon County Housing Auth. v. Egli, Appellant.
    Argued December 7, 1981.
    George Milner, for appellant; Armin Feldman, for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.


text:
    450 A.2d 218
    Commonwealth v. Acevedo, Appellant.
    Argued April 15, 1980.
    Chester B. Scholl, Jr., for appellant; Harry A. Penich, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 218
    Commonwealth v. Allamena, Appellant.
    Submitted March 30, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 219
    Commonwealth v. Anderson, Appellant.
    Petition for Allowance of Appeal Denied Nov. 30, 1982.

      Submitted March 2, 1982.
    Albert L. Becker, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Judgment of sentence is affirmed.


text:
    452 A.2d 24
    Commonwealth v. Best-Bey, Appellant.
    Reargument Denied Nov. 18, 1982.
    Petition for Allowance of Appeal Denied Feb. 25, 1983.
    Argued December 14, 1981.
    Richard C. Sheehan, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 219
    Commonwealth v. Boswell, Sr., Appellant.
    Submitted December 5, 1980.
    William F. Ochs, Jr., Public Defender, for appellant; J. Michael Morrissey, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., HESTER and WIEAND, JJ.
   Order affirmed.


text:
    450 A.2d 219
    Commonwealth v. Bundridge, Appellant.
    Submitted September 29, 1981.
    Andrew J. Achman, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   Order affirmed.


text:
    450 A.2d 220
    Commonwealth v. Campbell, Appellant.
    Submitted December 5, 1980.
    Roy Davis, Assistant Public Defender, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., HESTER and WIEAND, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    450 A.2d 220
    Commonwealth v. Cek, Appellant.
    Submitted February 19, 1981.
    Frederick S. Wolf, for appellant; David J. Brightbill, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., MONTEMURO and VAN der VOORT, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    450 A.2d 220
    Commonwealth v. Dennis, Appellant.

      Submitted June 2, 1982.
    Aaron Charles Finestone, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Order and judgment of sentence affirmed.


text:
    450 A.2d 220
    Commonwealth v. Dorsey, Appellant.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.
    Submitted March 2, 1982.
    George Howard Eager, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Appeal No. 192 Philadelphia 1981 is dismissed as moot.

Appeals No. 835 Philadelphia 1980 and No. 1243 Philadelphia 1981 are affirmed.


text:
    450 A.2d 221
    Commonwealth v. Fortune, Appellant.

      Submitted June 29, 1979.
    Ronald Keller, for appellant; Daniel L. Howsare, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., SPAETH and STRANAHAN, JJ.

       President Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.

   The judgment of sentence of the lower court is affirmed.


text:
    450 A.2d 221
    Commonwealth v. Green, Appellant.
    Argued June 10, 1980.
    John J. Duffy, for appellant; Kristine F. Hughey, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 221
    Commonwealth v. Hassell, Appellant.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.

      Submitted March 1, 1982.
    Marc Welt Reuben, for appellant; Jane Culter Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 222
    Commonwealth v. Herder, Appellant.
    Submitted March 29, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 222
    Commonwealth v. Hill, Appellant.
    Argued December 16, 1981.
    William P. Fedullo, for appellant; Sarah B. Vandenbraak, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Judgment of sentence dated April 13, 1981 is affirmed.


text:
    450 A.2d 222
    Commonwealth v. Hill a/k/a Teddy, Appellant.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.
    Submitted May 22, 1981.
    David G. Metinko, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before PRICE, MONTGOMERY and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 223
    Commonwealth v. Jackson, Appellant.
    Submitted November 30, 1981.
    John M. Glace, Assistant Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 223
    Commonwealth v. Lee, Appellant.
    Submitted March 31, 1982.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant; Gaele M. Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   The order of the learned Philadelphia County Common Pleas Judge Charles L. Durham is affirmed.


text:
    450 A.2d 223
    Commonwealth v. Levenson, Appellant.
    Argued April 13, 1982.
    John Rogers Carroll, for appellant; Kemal Alexander Mericli, Assistant District Attorney, for Commonwealth, appellee.

      Before HESTER, JOHNSON and POPOVICH, JJ.
   The order and judgment of sentence is affirmed.


text:
    450 A.2d 223
    Commonwealth v. Luchi, Appellant.
    Submitted June 13, 1980.
    Ronald J. Wydo, for appellant; Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


text:
    450 A.2d 224
    Commonwealth v. Mannion, Appellant.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.
    Submitted November 10, 1981.
    John H. Corbett, Jr., for appellant; Robert- L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.

      Before BECK, JOHNSON and POPOVICH, JJ.
   Judgment of sentence dated February 24, 1981 is affirmed.


text:
    450 A.2d 224
    Commonwealth v. Montgomery, Appellant.
    Submitted January 11, 1982.
    John W. Hodge, for appellant; Donald E. Williams, District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    450 A.2d 224
    Commonwealth, Appellant v. Ostrum.
    Argued June 24, 1981.
    Maxine J. Stotland, Assistant District Attorney, for Commonwealth, appellant; Leonard N. Sosnov, Assistant Public Defender, for appellee.
    Before CERCONE, P. J., HESTER and CAVANAUGH, JJ.
   Judgment of sentence affirmed.

HESTER, J., filed a memorandum dissenting opinion.


text:
    450 A.2d 225
    Commonwealth v. Rodriguez, Appellant.
    Submitted December 1, 1981.
    Jeffery M. Cook, Assistant Public Defender, for appellant; Gary E. Hartman, District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   Order affirmed.


text:
    450 A.2d 225
    Commonwealth v. Stinson, Appellant.
    Submitted June 7, 1982.
    Samuel R. Kasick, Assistant Public Defender, for appellant; William H. Platt, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Judgments of sentence affirmed.


text:
    450 A.2d 225
    Commonwealth v. Walker, Appellant.
    Petition for Allowance of Appeal Denied March 30, 1983.
    Submitted November 9, 1981.
    Richard S. Levine, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   The judgment of sentence is affirmed.


text:
    451 A.2d 9
    Connell v. Connell, Appellant.
    Reargument Denied Oct. 20, 1982.
    Petition for Allowance of Appeal Denied March 3, 1983.
    Argued January 26, 1982.
    Kathleen Riley Connell, submitted a brief on behalf of appellant, in propria persona; F. Harry Spiess, for appellee.
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   Order affirmed.


text:
    450 A.2d 225
    Farris etc., Appellants v. Pennsbury School District et al.
    Argued June 7, 1982.
    Richard Fink, for appellants; Glenn David Hains, for Pennsbury, appellee; and William T. Renz, for Neiger, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Judgment affirmed.


text:
    450 A.2d 226
    First Mercantile Con. Dis. Co. v. Chandler, Appellant.
    Argued September 10, 1981.
    Paul A. Lockrey, for appellant; Alan B. Liss, for appellee.
    Before HESTER, McEWEN and SHERTZ, JJ.
   The order of the learned Philadelphia County Common Pleas Court President Judge Edward J. Bradley is affirmed.

SHERTZ, J., did not participate in the consideration or decision of this case.


text:
    450 A.2d 226
    Kwiatkowski et al. v. Koury et al., Appellants.
    Petition for Allowance of Appeal Denied March 18,1983.
    Argued March 3, 1982.
    Frank W. Mulderig, for appellants; Edward John Geist, for appellees.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Order and judgment affirmed.


text:
    450 A.2d 226
    Link, Appellant v. Dillon, et ux.
    Argued April 26, 1982.
    Lee C. McCandless, for appellant; Lee A. Montgomery, for appellees.
    Before BECK, MONTEMURO and POPOVICH, JJ.
   Order and judgment affirmed.


text:
    450 A.2d 226
    Moore, Appellant v. Lyster et al.

      Argued April 23, 1982.
    Mary Louise Doherty, for appellant; John L. Digiacomo, for appellees.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Order affirmed.


text:
    450 A.2d 227
    Morena, Appellant v. South Hills Health System et al.
    Petition for Allowance of Appeal Granted Dec. 2, 1982.
    Argued February 10, 1982.
    Alan L. Carb, for appellant; Barbara Clemons, for South Hills, et al., appellees; and John George Shorall, for McDoodle et al., appellees.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   Judgment affirmed.

BROSKY, J., filed a memorandum dissenting opinion.


text:
    450 A.2d 227
    Nehf, Appellant v. Holland, M. D.
    Petition for Allowance of Appeal Denied Nov. 30, 1982.

      Argued December 15, 1981.
    Wesley M. Wasylik, for appellant; Joseph C. Bernstein, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The order of April 29, 1981, is affirmed on the comprehensive opinion of Judge Davison.


text:
    450 A.2d 227
    Phila. Parking Auth., Appellant v. Kinney System, Inc., Appellant.
    Argued January 25, 1982.
    Joseph J. Carlin, for Phila. Parking Auth., appellant (at No. 910) and appellee (at No. 978); John R. Padova, for Kinney, appellant (at No. 978) and appellee (at No. 910).
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Order affirmed.


text:
    451 A.2d 1043
    Philadelphia Parking Auth., Appellant v. Nat’l Garages Inc.
    Reargument Denied Nov. 9, 1982.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.

      Argued December 2, 1980.
    Vincent K. Yakowicz, for appellant; Arnold E. Cohen, for appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    450 A.2d 227
    Riehl et al., Appellants v. Horn et al.
    Submitted June 9, 1982.
    Thomas A. Dittoe, for appellants; Basil A. Disipio, for appellees.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    450 A.2d 228
    Schwartzman, Appellant v. Hankin.
    Argued November 5, 1981.
    Michael B. L. Hepps, for appellant; Philip D. Weiss, for appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   Order affirmed.


text:
    450 A.2d 228
    Unterberg v. Unterberg. Appeal of Miriam Unterberg.
    Petition for Allowance of Appeal Denied Jan. 21, 1983.
    Argued May 12, 1982.
    Michael J. Reiter, for appellant; Sanford D. Beecher, Jr., for appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   Order affirmed.


text:
    450 A.2d 228
    Washington Nat’l Ins. Co. v. Jonnet Dev. Corp., Appellant.
    Petition for Allowance of Appeal Denied Dec. 15, 1982.
    Argued April 14, 1980.
    David Abrams, for appellant; Lawrence N. Ravick, for appellee.
    Before PRICE, HESTER and MONTGOMERY, JJ.
   The appeal at No. 1498 April Term, 1978 is quashed. The judgment appealed at No. 1570 April Term, 1978 is affirmed on the comprehensive opinion of the Honorable Eunice Ross.


text:
    450 A.2d 228
    Watson v. Williams, Appellant.
    Submitted April 5, 1982.
    Arthur Matusow, for appellant; Jane Culter Greenspan, Assistant District Attorney, for appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Order affirmed.


author: PER CURIAM:

text:
    450 A.2d 70
    COMMONWEALTH of Pennsylvania v. George Robert HOLLIS, Sr., Appellant. (Two cases).
    Superior Court of Pennsylvania.
    Argued March 18, 1980.
    Filed Aug. 27, 1982.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.

      Charles J. Weiss, Ambler, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, submitted a brief on behalf of Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   PER CURIAM:

The instant appeals are from the order of the Court of Common Pleas of Montgomery County denying appellant’s Omnibus Pre-Trial Motion to Quash Information and the judgment of sentence imposed following the denial of post-verdict motions on his conviction for driving while under the influence of alcohol. For the reasons that follow, we affirm the order denying appellant’s motion to quash, but vacate the judgment of sentence and remand for proceedings consistent with this opinion.

Appellant, George Robert Hollis, Sr., was charged with the misdemeanor of driving while under the influence of alcohol and the summary offense of fleeing or attempting to elude a police officer following an incident in Whitemarsh Township, Montgomery County. A preliminary hearing was scheduled and, on the appointed day, appellant’s attorney met with the arresting officer and suggested that both charges against his client be dropped and that either the charge of public drunkenness or disorderly conduct be substituted. (N.T. 20). Although this particular suggestion was refused, an agreement was reached nonetheless. The arresting officer agreed to withdraw the summary charge of fleeing or attempting to elude a police officer. The district magistrate was advised that the summary charge was withdrawn and that the only charge thus pending against appellant was driving while under the influence. Appellant thereafter waived his right to a preliminary hearing on the drunken driving charge. The matter came before the court of common pleas and was tried before a judge sitting without a jury on February 6 and 7, 1979.

Prior to trial, appellant filed a motion to quash the information on the driving under the influence charge, claiming that his prosecution for drunk driving was barred on the basis of double jeopardy, Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), explained on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), and/or section 110 of the Crimes Code, 18 Pa. C.S.A. § 110, since the “dismissal” of the summary offense was tantamount to an acquittal. The trial court denied the motion to quash and appellant appealed. Despite receiving notice of the appeal, the trial judge proceeded with the trial and found appellant guilty of driving while under the influence of alcohol. Following the denial of post-verdict motions, appellant was sentenced to pay a fine of $350.00 and costs of prosecution. Thereafter, appellant filed a second appeal which was subsequently consolidated with his appeal from the denial of his motion to quash the information.

Regarding the denial of his motion to quash, appellant posits that, because

a “discharge” is equivalent to an “acquittal,” the only issue herein is whether the summary offense filed against the defendant at the same time as the misdemeanor was “discharged” or “withdrawn.” If “withdrawn,” double jeopardy, sec. 110, Campana, etc., do not come into play. If “discharged,” then defendant’s pre-trial motion to quash the information should have been granted.

Brief for Appellant at 26. Consequently, appellant contends that the charge of fleeing or attempting to elude a police officer was discharged, the equivalent of an acquittal, thus precluding his prosecution for driving while under the influence of alcohol. This contention is ludicrous.

Section 110 of the Crimes Code, 18 Pa. C.S.A. § 110, embodies rules establishing when a prosecution is barred by an earlier prosecution for a different offense. That section provides, in pertinent part:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(B) the second offense was not consummated when the former trial began.

18 Pa. C.S.A. § 110(l)(i)-(iii) (emphasis added). The definition of “acquittal” set forth in section 109 of the Crimes Code includes a prosecution that results “in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction.” 18 Pa. C.S.A. § 109(1).

Appellant strains logic to the extreme in contending that he was “acquitted” of fleeing or attempting to elude a police officer. A preliminary hearing was never held. Absolutely no evidence was presented. Indeed, the only conversation between the parties and the magistrate occurred when the arresting officer informed the magistrate that he had decided not to pursue the summary charge. At that point, appellant’s attorney advised the magistrate that appellant waived the misdemeanor to court. This does not constitute “a finding of not guilty by the trier of fact” or “a determination that there was insufficient evidence to warrant a conviction.” The trial judge thus properly denied appellant’s motion to quash the information.

Appellant also advances several arguments challenging the merits of his conviction for driving while under the influence of alcohol. For purposes of this appeal, however, we need only address one such argument. Appellant contends that the trial judge erred in proceeding to trial after receiving notice that appellant had appealed to this court following the denial of his motion to quash. We agree.

We ruled in Weise v. Goldman, 229 Pa. Super. 187-8, 323 A.2d 31 (1974), that “When an appeal is taken to an appellate court, it is well-established that the jurisdiction of the lower court is removed and the court of first instance may not further proceed with a cause as long as the appeal is still pending.”

Curcio v. Diluzio, 245 Pa. Superior Ct. 578, 580, 369 A.2d 778, 779 (1977). This common law rule has, with several exceptions not here relevant, been codified in the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1701(a). See, e.g., Marlow v. Zoning Hearing Board of Haverford, 52 Pa. Commonwealth Ct. 224, 228, 415 A.2d 946, 947 (1980). Thus, although “the lower court may have properly determined the merits of [appellant’s motion to quash], it should not have acted while an appeal was before this Court.” Weise v. Goldman, 229 Pa. Superior Ct. 187, 189, 323 A.2d 31, 32 (1974). Since jurisdiction no longer existed in the trial court as of the time of trial, moreover, the trial was a nullity, and it is of no consequence that this court was able to consider the merits of both of appellant’s appeals.

Accordingly, the order denying appellant’s motion to quash is affirmed. Because the trial below was a nullity, however, the conviction cannot stand. The judgment of sentence, therefore, is vacated and the case remanded to the trial court for proceedings consistent with this opinion. Jurisdiction of this case is transferred to the Court of Common Pleas of Montgomery County.

      . The appeal at No. 297 October Term, 1979 was taken from the trial court’s order denying appellant’s motion to quash the information charging him with driving while under the influence of alcohol. Subsequently, an appeal at No. 1006 October Term, 1979 was taken from the judgment of sentence imposed following appellant’s conviction for driving while under the influence.

      . 75 Pa. C.S.A. § 3731(a)(1).

      . 75 Pa. C.S.A. § 3733(a).

      . The preliminary hearing was scheduled for October 27, 1978, but was not held because actions taken by the arresting officer and appellant obviated the need for such a hearing. Officer Anhom’s testimony on this point is illustrative.
      Q. On October 27th of last year, did you have occasion to go to District Justice Speers’ office in Lafayette Hill?
      A. Yes, I did.
      Q. What case was that in reference to?
      A. This was the George R. Hollis case.
      Q. For what purpose did you go to the office?
      A. That was the scheduled preliminary hearing time for this particular defendant.
      Q. Was the preliminary hearing held?
      A. No, it was not.

      Q. Was any testimony taken?
      A. No, there was not.
      Q. What charges rested against the defendant at that time? A. At the time of the scheduled preliminary hearing I had the charge of driving under the influence of alcohol or a controlled substance, and fleeing or attempting to elude police officers. Q. What happened with the charge of attempting to elude a police officer?
      A. I withdrew the charge.

      Q. When did you withdraw the charge?
      A. When I arrived at the office of Magistrate Speers I was advised that his attorney, Charles Weiss, wished to talk to me, not in the hearing room. After our conversation, I agreed to withdraw the charge.

      Q. When did you actually withdraw the charge? How did that take place?

        A. Our conversation went on as to Mr. Hollis that—
      Q. What I’m asking you is when did you actually withdraw the charge?
      A. Right after our conversation I made it known to the magistrate that I was withdrawing the charge of fleeing or attempting to elude a police officer.

      Q. And what happened to the charge of operating while under the influence.
      A. The attorney, speaking for his client, agreed to waive that charge right to court and walked in and spoke to Mrs. Speers. Q. Spoke with whom?
      A. Mrs. Speers, who was the clerk and secretary there in the office. No testimony was taken whatsoever.
      (N.T. 18-19) (emphasis added).

      . 18 Pa. C.S.A. § 5505.

      . 18 Pa. C.S.A. § 5503.

      . “An appeal from an order denying a motion to quash on the grounds of successive prosecutions is allowable. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).” Commonwealth v. Breitegan, 276 Pa. Superior Ct. 181, 183 n. 2, 419 A.2d 155, 157 n. 2 (1980).

      . The Code of Professional Responsibility proscribes conduct “involving ... deceit, or misrepresentation” or “conduct that is prejudicial to the administration of justice.” DR 1-102(A)(4) & (5). Furthermore, a lawyer is not only prohibited from “making a false statement of ... fact” but also from “[kjnowingly advancing a claim- or defense that is unwarranted under existing law” unless “it can be supported by good faith argument.” DR 7-102(A)(5) & (2). Because we presume that counsel would not knowingly violate these precepts, we can only assume that, in making such a claim, counsel has been operating under a misapprehension of fact and a concomitant misunderstanding of the ramifications of his entreaty to the arresting officer regarding the charges pending against his client.

      . Appellant attempts to buttress his argument on this issue by referring us to the letter “D” which appears on the magistrate’s Docket Transcript under the “disposition” column for the charge of fleeing or attempting to elude a police officer. There was, however, ample testimony adduced to explain that what should have appeared was “WD” for withdrawn. Even in the absence of such testimony, moreover, the appearance of “D” is of no moment in our disposition of this issue because the testimony of the parties involved clearly establishes that the arresting officer withdrew the summary charge at the behest of appellant’s attorney.
      “Section 110 is intended to prevent harassment by the prosecution; it is not intended to afford a defendant with a procedural expedient to avoid a prosecution.” Commonwealth v. Bartley, 262 Pa. Superior Ct. 390, 396, 396 A.2d 810, 813 (1979) (citation and footnote omitted). This is particularly pertinent in the instant case because there was more than sufficient evidence to support appellant’s conviction on the withdrawn charge and the evidence clearly establishes that the charge was withdrawn at the behest of appellant’s counsel. Further, appellant’s attorney was well aware that no preliminary hearing took place. Counsel could not possibly have advanced an argument in good faith that his client was either acquitted or that the charge was discharged because of insufficient evidence. Thus, any other ruling on this point would not only encourage attorneys to play fast and loose with the courts but also frustrate the purpose for which section 110 was adopted. This we will not do.

      . Appellant contends that: the evidence was insufficient to support his conviction for driving under the influence of alcohol; the trial court erred in proceeding with the trial after he had filed his notice of appeal; the presumption of intoxication contained in the Motor Vehicle Code, 75 Pa. C.S.A. § 1547(d)(3), is unconstitutional; the trial judge erred in allowing the arresting officer to render an opinion on the question whether appellant was intoxicated at the time of his arrest; the trial judge erred in permitting the Commonwealth to introduce certain rebuttal testimony; and the trial judge erred in denying appellant’s motion to suppress evidence obtained when he was stopped by police at the time of his arrest.

      . “Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter.” Pa. R.A.P. § 1701(a).


text:
    450 A.2d 74
    COMMONWEALTH of Pennsylvania v. Larry SCHILDT, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1981.
    Filed Aug. 27, 1982.
    Victor Alfred Neubaum, York, for appellant.
    Floyd Paul Jones, Assistant District Attorney, York, submitted a brief on behalf of Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and MONTEMURO, JJ.
   PER CURIAM:

Larry Schildt was convicted before a magistrate of the summary offense of driving an overweight truck in violation of The Vehicle Code of June 17, 1976, P.L. 162, No. 81, 75 Pa.C.S. § 4943(a). On appeal to the Court of Common Pleas of York County, he was tried de novo and again found guilty. He was sentenced to pay a fine of $1,100.00 plus costs. On direct appeal he argues that his truck was stopped by police and weighed in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. However, because he failed to file post-verdict motions as required by Pa.R.Crim.P. 1123, we cannot decide this issue.

Appellant was found guilty and sentence was imposed immediately following the conclusion of his trial de novo. The record discloses, however, that appellant was not then advised of the necessity for filing post-trial motions. Thus, it cannot be said that he knowingly and intelligently waived the right to raise post-trial the validity of the police stop of his vehicle. This state of the record, as President Judge Cercone observed in Commonwealth v. Picker, 293 Pa.Super. 381, 382, 439 A.2d 162, 163 (1981), “is reflective of the confusion which existed in the legal community before our en banc decision in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981).” Where direct appeals have been taken prior to Koch without post-verdict motions having been filed in the trial court, we have uniformly vacated the judgment of sentence and have remanded to give appellant an opportunity to file post-verdict motions nunc pro tunc. See: Commonwealth v. Kauffman, 298 Pa.Super. 375, 444 A.2d 1222 (1982); Commonwealth v. Grey, 298 Pa.Super. 525, 445 A.2d 112 (1982); Commonwealth v. Dalbon, 296 Pa.Super. 122, 442 A.2d 326 (1982); Commonwealth v. Sims, 296 Pa.Super. 309, 442 A.2d 783 (1982); Commonwealth v. Spitzer, 292 Pa.Super. 466, 437 A.2d 768 (1981); Commonwealth v. Picker, supra.

The judgment of sentence is vacated, and the case is remanded for the filing of post-verdict motions nunc pro tunc within ten (10) days of the filing of this order. Jurisdiction is not retained.


author: HESTER, Judge:

text:
    450 A.2d 75

    John BONCZEK and Mary Bonczek doing business as a partnership Silver Creek Farm v. PASCOE EQUIPMENT COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed Sept. 3, 1982.

      Samuel W. Braver, Pittsburgh, for appellant.
    Robert B. Truel, Pittsburgh, for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   HESTER, Judge:

This appeal from the Allegheny County Court of Common Pleas, Civil Division, involves a tractor leased by appellees Mary and John Bonczek, owners of the Silver Creek Farm, from the Pascoe Equipment Company, appellant.

The principal business of appellees was the production of hay for sale to area farms and stables. Having enjoyed some degree of success in the early days of their venture, the appellees decided to expand their capacity to grow, harvest and sell hay. To accomplish this expansion, the appellees leased a tractor from the appellant who was in the business of selling and leasing farm machinery. The tractor was leased in the name of appellee Mary Bonczek rather than in the name of her brother John due to the fact that John had exhausted his line of credit. The appellees were partners in the Silver Creek Farm and maintained a partnership checking account. However, the expenses for the tractor were paid from the personal account of appellee Mary Bonczek.

The terms of the tractor lease called for appellees to make one year’s pre-payment of $2,800 to be followed by 3 additional annual payments of $2,800. Additionally, appellees were responsible for insurance payments for the tractor. At the end of four years, appellees had the option of purchasing the tractor for $2,800.

At the end of the first year, appellees were unable to pay the second year’s rental on its due date. When appellant asked appellee John Bonczek for the payment, Bonczek explained that inclement weather had delayed the second hay cutting and he did not have the money at the moment but expected to have the total amount due before the end of haying season. Appellant’s (Mr. Pace) allegedly responded, “get me what you can” (R. at 151a). Thirty days later, appellee tendered $1,000 to appellant’s vice-president and general manager, Mr. Pace, and also paid the insurance premium which was due on the policy covering the tractor. Thirteen days later, appellees paid appellant an additional $700 on the balance owed on the lease. This second check, like the first, was cashed by the appellant. Thirty-four days later, on August 28,1977, at the height of the haying season, appellant, without notifying appellee of its intentions, repossessed the tractor from the appellees’ farm. Immediately, appellee John Bonczek called appellant’s vice-president Mr. Pace, who allegedly said if Bonczek paid him the balance owed that day, he could regain possession of the tractor. However, when Bonczek delivered the balance (which he had borrowed from friends) to Pace, Pace refused to accept it and Bonczek did not regain possession of the tractor.

Appellees then instituted this equity action alleging the lease agreement had been modified by a subsequent oral understanding between the parties and that they sustained severe losses as the result of appellant’s breach of said oral modification.

The matter was tried before Judge Narick and a jury. The jury returned a verdict in favor of the appellees in the amount of $10,000 plus interest. Following the argument and denial of motions for a new trial and judgment n.o.v., appellant filed the within appeal.

The legal issue we are presented with in the case is whether there was a waiver of the original lease agreement between the parties caused by an oral modification of the original written instrument. “The Court interpreting a .. . contract can always consider the surrounding circumstances in order to ascertain the intention and the meaning of the parties,” In Re Herr’s Estate, 400 Pa. 90, 161 A.2d 32, 34 (1960). We must examine the circumstances surrounding the original lease agreement and the behavior of the parties pursuant to the lease.

In Pennsylvania, the law is “well settled that a written agreement may be modified by a subsequent (written or) oral agreement and that this modification may be shown by writings or by words or by conduct or by all three,” Dora v. Dora, 392 Pa. 433, 437,141 A.2d 587, 590 (1958); Elliott-Lewis Corp. v. York-Shipley, Inc., 372 Pa. 346, 94 A.2d 47 (1953). The case of Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550, 244 A.2d 10 (1968) held that & written contract could be orally modified even though the written contract provides that modifications must be in writing. Universal cites the other case of Wagner v. Graziano Construction Co., 390 Pa. 445, 136 A.2d 82 (1957) and agrees with the holding of Wagner that:

There is nothing sacrosanct about a written agreement granted that writing makes for specificity and clarity, reduces the chance for errors, and allows for constant reference as to what was agreed upon, it nevertheless holds no superior position over an oral compact in the realm of authoritative utterances, except where the Statute of Frauds intervenes or is invoked. The most ironclad written contract can always be cut into by the acetylene torch of parol modification supported by adequate proof. Wagner, supra, 390 Pa. 448, 136 A.2d at 83.

The Bonczeks had a written agreement, a lease with Pascoe Equipment Company, dated June 11,1976. The terms of the lease agreement calling for yearly payments were met in the first year by a payment of $2,800. The issue is whether the original agreement was orally modified by John Bonczek and Samuel Pace (acting on behalf of Pascoe Equipment Company) when Bonczek could not fulfill or meet the requirements of the lease in the second year of its life.

Two specific criteria must be met in order for an oral modification to be valid: “the law is well settled that a written agreement can be modified by a subsequent oral agreement provided the latter is based upon a valid consideration and is proved by evidence which is clear, precise, and convincing.” Pellegrene v. Luther, 403 Pa. 212, 169 A.2d 298 (1961); National Bank of Fayette County v. Valentich, 343 Pa. 132, 22 A.2d 724, 726 (1941); Stoner v. Sley System Garages, 353 Pa. 532, 46 A.2d 172 (1946).

With regard to the first requirement, the appellants contend that no new consideration supported the oral modification and therefore, appellees breached the original agreement and that appellants acted within the parameters of the lease when they repossessed the tractor. We disagree. When Pascoe’s agent, Mr. Pace, was informed by appellee John Bonczek that he did not have the money to make the second year’s payment. Pace allegedly replied, “get me what you can.” When Bonczek tendered $1,000 to Pascoe (and there was a factual dispute in the testimony at trial over whether the check for $1,000 was given to the bookkeeper or to Mr. Pace), the check was accepted and deposited. When Bonczek made a second installment payment of $700, the sum was also deposited into the account of Pascoe. Bonczek knew that the lease called for only one payment of a total sum of $2,800. Also Bonczek knew that he would have to pay rent for the tractor or risk losing it. But rather than admit defeat and acquiesce to the repossession of the tractor, Bonczek in good faith asked Pace if payments could be made on account. Pascoe, in turn, could have immediately exercised its right of possession, but chose to accept the partial payments thereby avoiding repossession. The acceptance by Pace of a sum less than that specified in the lease modified the original lease, and such modification was supported by $1,000 consideration. Appellants claim Bonczek only did what he was legally obligated to do under the terms of the original lease and that the alleged modification lacked new consideration. What he was legally obligated to pay was $2,800. The acceptance of a lesser sum and the promise of future payments caused the original lease to be validly modified and caused Mr. Bonczek to act as he was bound to under the modification, that is, to pay what he could when he could.

The evidence of a new consideration is clear, convincing, and precise, when one considers that each of the payment checks were accepted by the appellants and placed under their control. Not only was there an oral modification of the lease, but there was a partial performance of the lease, as modified. Appellants argue that the lease said that time was of the essence in the operation of the agreement. However, the Court in Warner v. MacMullen, 381 Pa. 22, 112 A.2d 74 (1955), held that:

. . . even though the time fixed in an agreement for settlement is stated to be of the essence of the agreement, it may be extended by oral agreement or be waived by the conduct of the parties, and where the parties treat the agreement as in force after the expiration of time specified for settlement, it becomes indefinite as to time and neither can terminate it without reasonable notice to the other. Warner v. MacMullen, supra, 381 Pa. at 29, 112 A.2d at 78; see also DiGiuseppe v. DiGiuseppe, 373 Pa. 556, 96 A.2d 874 (1953).

In that regard, appellant contends the trial court committed “basic, fundamental and prejudicial error” in determining that the equipment lease agreement created a security interest governed by Division Nine of the Uniform Commercial Code, Act of November 1, 1979, P.L. 255, No. 86, 13 Pa.C.S.A. § 9101 et seq. Gimore v. Marsh, 424 Pa. 361, 227 A.2d 881, 882 (1967).

Pursuant to that determination, the court charged on Division Nine Rights of Repossession and Notice of Resale.

A “security interest” is defined in Section 1201 of the Uniform Commercial Code, 13 Pa.C.S.A. § 1201, as follows:

A security interest means an interest in personal property or fixtures which secures payment or performance of an obligation. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer (Section 2401) is limited in effect to a reservation of a “security interest”. The term also includes any interest of a buyer of accounts or chattel paper which is subject to Division 9. The special property interest of a buyer of goods on identification of such goods to a contract for sale under Section 2401 is not a “security interest”, but a buyer may also acquire a “security interest” by complying with Division 9. Unless a lease or consignment is intended as security, reservation of title thereunder is not a “security interest” but a consignment is in any event subject to the provisions on consignment sales (Section 2326). Whether a lease is intended as security is to be determined by the facts of each case; however, (1) the inclusion of an option to purchase does not of itself make the least one intended for security, and (2) an agreement that upon compliance with the terms of the lease the leasee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.

The lease specifically provided:

“Title: Title to the equipment shall at all times be vested in the lessor unless transferred to the lessee through sale ...”

However, 13 Pa.C.S.A. Section 9202 makes it clear that Title to the collateral is immaterial with respect to whether a security interest exists. See also 13 Pa.C.S.A. Section 2401; 13 Pa.C.S.A. 9102 and the official comment thereto; the official comment to 13 Pa.C.S.A. Section 1201; Girard Trust Corn Exchange Bank v. Warren Lepley Ford, Inc., 13 Pa.D & C 2d 119 (1959).

The above-stated definition of a “security interest”, and 13 Pa.C.S.A. Section 9102 make it clear that the determination of whether a security interest exists initially depends upon the intent of the parties to the transaction. The record in the instant case does not specifically address the issue of intent. With the exception of the terms of the Equipment Lease Agreement itself, the only other evidence in the record concerning this issue would be the testimony of Mr. Bonczek, who testified that he understood that he was buying the equipment. He stated, “Yes, after four years of renting it, we received it.”

In ruling that the equipment lease agreement in the instant case did create a security interest, subject to the rights, obligations and remedies specified by Division 9 of the Code, the lower court relied on Karp Brothers, Inc. v. West Ward Savings and Loan, 440 Pa. 583, 271 A.2d 493 (1970). In that case, the Supreme Court held that a bailment lease which provided that the lessees had the option to become the owners of the property at the end of the lease for no additional consideration, created a security interest, as defined by 13 Pa.C.S.A. Section 1201. The appellant in the instant case argues that Karp, supra, is distinguishable from the instant cáse due to the fact that the equipment lease agreement provided for a “total purchase option after lease payments” in the amount of $2,800.

The question thus becomes whether the payment of what amounts to one-year’s additional rent, at the time of exercise of the option, constitutes “nominal consideration” within the meaning of 13 Pa.C.S.A. Section 1201.

Finding no other authority in Pennsylvania concerning this issue, we have reviewed decisions of other states which have adopted the Uniform Commercial Code. We adopt the following compelling reasoning of the Supreme Court of Alabama, in Commerce Union Bank v. John Deere Industrial Equipment Company, 387 So.2d 787, 790 (Ala. 1980):

“Although intent is the principal test under the Code, other factors for consideration have been used by the courts. In re Alpha Creamery Co., Inc., 4 U.C.C.Rep.Serv. 794, 797-98 (W.D.Mich.1967), listed the following indicia for distinguishing a true lease from a security interest.
1. The facts in each case control to show intention of the parties to create a security interest.
2. Reservation of title in a lease or option to purchase appurtenant to or included in the lease does not in and of itself make the lease a security agreement.
3. Lease agreement which permits the lessee to become the owner at the end of the term of the lease for a nominal or for no additional consideration is deemed intended as a security agreement as a matter of law.
4. The percentage that option purchase price bears to the list price, especially if it is less than 25%, is to be considered as showing the intent of the parties to make a lease as security.
5. Where the terms of the lease and option to purchase are such that the only sensible course for the lessee at the end of the lease term is to exercise the option and become the owner of the goods, the lease was intended to create a security interest.
6. The character of a transaction as a true lease is indicated by:
(a) Provision specifying purchase option price which is approximately the market value at the time of the exercise of the option.
(b) Rental charges indicating an intention to compensate lessor for loss of value over the term of the lease due to aging, wear and obsolescence.
(c) Rentals which are not excessive and option purchase price which is not too low.
(d) Facts showing that the lessee is acquiring no equity in leased article during the term of the lease.

On the basis of the criteria listed above, we hold that the Equipment Lease Agreement in this instant case created a “security interest” subject to the rights, obligations and remedies provided by Division 9 of the Code. The Equipment Lease Agreement specified that the tractor, at the time the agreement was executed on June 11, 1976, was worth $12,200. Therefore, the option price of $2,800 would be less than 25% of the stated value of the tractor. Furthermore, the agreement itself makes it clear that the annual rental payments are credited to the ultimate option price, since the agreement states “total purchase option after lease payments $2,800.00”. However, we are most persuaded by criterion No. 5, quoted above, due to the fact that, in the instant case, “. . . the only sensible course for the lessee at the end of the lease term is to exercise the option and become the owner of the goods, ...” It is clear that the Bonczeks could, at the end of 4 years, either pay one year’s additional rent and become the owners of the tractor, or return the tractor to Pascoe. It would appear that the only sensible course would be to take advantage of their equity, which the credited rental payments had created, by exercising the purchase option. See also Arnold Machinery Company v. Balls, 624 P.2d 678, 680 (Utah, 1981); FMA Financial Corporation v. Pro-Printers, 590 P.2d 803 (Utah, 1979); Eimco Corporation v. Sims, 100 Idaho 390, 598 P.2d 538, 542 (1979); Consolidated Equipment Sales, Inc. v. First State Bank and Trust Company, 627 P.2d 432, 435 (Okl.1981).

Judgment affirmed.


author: CAVANAUGH, Judge:

text:
    450 A.2d 80
    Appeal of G. J. A.
    Superior Court of Pennsylvania.
    Argued June 23, 1981.
    Filed Sept. 3, 1982.

      Richard E. Moose, West Chester, for appellant.
    John H. Wollman, West Chester, for participating party.
    Before HESTER, CAVANAUGH and DiSALLE, JJ.
   CAVANAUGH, Judge:

This appeal is taken from an order terminating the parental rights of appellant G. J. A. with respect to his son Eric A. For the reasons discussed below, we vacate the order and remand the case to the lower court for reconsideration in light of a recent decision by The United States Supreme Court.

The petition requesting that appellant’s rights be terminated was filed by Eric’s mother and step-father, appellees herein. The lower court terminated appellant’s parental rights after finding that appellant had, for a period of at least six months, failed to perform parental duties under section 311(1) of the Adoption Act, 1 P.S. § 311(1). Under that section, parental rights may be terminated if:

The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child, or has refused or failed to perform parental duties ....

The evidence presented to the lower court establishes that Eric was born May 24, 1969. His parents were divorced in January 1972, and Eric has resided continuously with his mother since that time. For the first few years following the divorce, appellant apparently visited Eric on a fairly regular basis. In the summer of 1975, Eric moved to Chester County, Pennsylvania, with his mother and her second husband. Appellant continued to reside in Tennessee, where the parties lived before their divorce. Since Eric moved to Pennsylvania, he has seen his father only three times; once in 1975, once in the fall of 1976, and once in August, 1977, when Eric traveled to Tennessee and stayed with appellant and his new family for one week. That visit was apparently unsuccessful and Eric has refused since then to return to Tennessee to visit appellant despite the fact that appellant has on more than one occasion provided a round-trip airplane ticket for such a visit. Since August of 1977, appellant’s only contact with his son has been through cards and phone calls at Christmas and on Eric’s birthday. Appellant made support payments for several years but, due to a severe financial setback, he has not made a payment since the middle of October, 1979. The instant petition was filed April 30, 1980, six months after appellant stopped making payments.

With regard to the parental duties under section 311(1), the Pennsylvania Supreme Court stated in In re Adoption of

F. D. S. and G. M. S., 490 Pa. 43, 46-47, 415 A.2d 23, 25 (1980):

[W]e have repeatedly held that, for the purposes of this section, “the parental obligation is a positive duty which requires affirmative performance. . . . [citations omitted] .... This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child .... [citations omitted] .... Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child’s life.” In re Involuntary Termination of Parental Rights of S. C. B. and K. T., 474 Pa. 615, 624, 379 A.2d 535, 540 (1977).

The issue in the instant case is whether appellant did enough to satisfy this affirmative duty.

The lower court felt that this case was controlled by the Pennsylvania Supreme Court’s holding in In The Matter of The Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978). That case also involved the termination of parental rights of a father who had lived a considerable distance from his son for several years and who had made few efforts to visit with his son during that time. The lower court in the instant case admitted that “there is perhaps more to be said on behalf of the father here as concerns his attempts to perform his parental duties” than in David C., but stated that it was “nevertheless of the opinion that this situation is controlled by the holding of David C., on the basis of the reasoning of that decision.” (Lower court opinion at 5). The court in David C., emphasizing the parent’s duty to take affirmative steps to maintain a relationship with their child, stated that “An absent parent must make special efforts to overcome the gaps created by geographic separation.” 479 Pa. at 15, 387 A.2d at 811. The lower court in the instant case found that appellant had made only a “perfunctory effort” to perform his parental duties and that this was not enough to satisfy the requirements set forth in David C.

We believe, however, that due to a recent decision of the United States Supreme Court, David C. is no longer controlling law in Pennsylvania. In David C., the Pennsylvania Supreme Court stated that the party attempting to terminate the father’s rights had “clearly met her burden of establishing by a preponderance of the evidence that for a period of at least six months, [the father] ‘has refused or failed to perform parental duties’ within the meaning of section 311(1) of the [Adoption Act].” 479 Pa. at 13, 387 A.2d at 810. (emphasis added). The United States Supreme Court recently struck down a New York law permitting the state to terminate the rights of parents in their natural child upon showing by a “fair preponderance of the evidence” that the child was “permanently neglected.” Santosky v. Kramer, Commissioner, Ulster County Department of Social Services, et al., 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The Supreme Court held that the Due Process Clause of the Fourteenth Amendment required that: “Before a state may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.” 455 U.S. at 746, 102 S.Ct. at 1391, 71 L.Ed.2d at 603. (emphasis added). Since the Pennsylvania statute providing for termination of parental rights does have the effect of severing “completely and irrevocably” the rights of parents in their natural child, our courts are bound by the holding in Santosky.

Henceforth, any party in Pennsylvania attempting to terminate parental fights must establish by clear and convincing evidence the existence of grounds for doing so. It would follow therefore, that any Pennsylvania cases holding otherwise are no longer authority as to the standard of proof required in termination of parental rights cases.

As a matter of policy we cannot disagree with the establishment of a stricter standard of proof in termination of parental rights cases. To the contrary, it can be soundly argued that the standards for involuntarily terminating parental rights heretofore established by Pennsylvania statutory and case law were unduly harsh in that they too easily allowed a legal termination of the closest of blood relationships, that of parent and child, a bond that the law should not hasten to sever as a punishment for repented human frailty. The new “clear and convincing evidence” requirement reflects society’s interest in the preservation of close family relationships and will mean that parental rights will not be terminated in borderline cases.

The lower court in the instant case stated that it was called upon “to decide a particularly close question” and that it was “with some reluctance” that it concluded that appellant’s rights should be terminated. (Lower court opinion at 1). Since this conclusion was based largely on the holding of David C., in which only a preponderance of the evidence was required, we must remand this case to the lower court with instructions to reconsider the case in light of the recent Supreme Court holding that parental rights can be terminated only upon the presentation of clear and convincing evidence that grounds for termination exist.

Order vacated. Case remanded for reconsideration in accordance with this opinion.

DiSALLE, J., did not participate in the consideration or decision of this case.

      . The current version of the Adoption Act is found at 23 Pa.C.S.A. § 2101 et seq. Specifically, the standard for involuntarily terminating parental rights which is relevant to this case is found at 23 Pa.C.S.A. § 2511(a)(1).

      . There can be no doubt that the holding in Santosky applies to cases such as the instant one which were tried before Santosky but in which an appeal was pending at the time of the Santosky decision. As the Pennsylvania Supreme Court recently stated, “a party whose case is pending on direct appeal is entitled to the benefit of changes in law which occur before the judgment becomes final.” Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905, 907 (1981). See also Commonwealth v. Hastings, 301 Pa.Super. 65, 446 A.2d 1337 (1982).

      . Under Pennsylvania law, a petition to terminate parental rights may be filed by an agency, by a parent seeking to terminate the rights of the other parent, or by a person having custody or standing in loco parentis to the child and who intends to adopt the child. 23 Pa.C.S.A. § 2512. The grounds for involuntary termination and, likewise, the burden of proof required to establish the existence of those grounds, are the same whether the petition is brought by a state agency or by a private party. It is irrelevant, therefore, that the petition was filed by a state agency in the Santosky case and by a private party in the instant case and in David C.

      . It is interesting to note that in a footnote in Santosky, The Supreme Court lists Pennsylvania as one of sixteen states which has, by court decision, required clear and convincing evidence or its equivalent. 455 U.S. at 749-750 n. 3,102 S.Ct. at 1392 n. 3, 71 L.Ed.2d at 604 n. 3. The case cited by The Supreme Court only states that:
      When the child is in the home, this ongoing relationship will not be disturbed except upon a showing by clear and convincing evidence that removal is “clearly necessary.”

        In re William L., 447 Pa. 322, 332, 383 A.2d 1228, 1233, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978) (citations omitted). The case can not be read to require clear and convincing evidence in all termination of parental rights cases. In fact, in several Pennsylvania Supreme Court cases decided subsequent to William L., a “preponderance of the evidence” standard was used in determining whether grounds for involuntary termination of parental rights existed. See, e.g., In re Adoption of M. M., 492 Pa. 457, 424 A.2d 1280 (1981); In re Adoption of J. S. M., Jr., 492 Pa. 313, 424 A.2d 878 (1981); In The Interest of T. S. L., 487 Pa. 245, 409 A.2d 332 (1979); In re D. J. Y., 487 Pa. 125, 408 A.2d 1387 (1979).

      . We are aware of the fact that another panel of this court recently declined to remand a case for reconsideration in light of Santosky. Instead, it engaged in an independent review of the record and determined that the evidence presented to the lower court was sufficient to warrant termination of parental rights even under the “clear and convincing evidence” requirement of Santosky. In re Adoption of M. E. T., - Pa.Super. -, slip opinion, No. 415 Pittsburgh 1981 (Pa.Super., filed June 25, 1982). We feel that it is a better practice to remand the case so that the trier-of-fact, who had an opportunity to observe the witnesses and their demeanor, can re-evaluate the evidence in light of the new evidentiary standard.


author: WICKERSHAM, Judge:

text:
    450 A.2d 83
    COMMONWEALTH of Pennsylvania v. Dan-E Lee BOYCE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 23, 1982.
    Filed Sept. 3, 1982.

      William F. Zaun, Bethlehem, for appellant.
    Donald B. Corriere, District Attorney, Easton, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WICKERSHAM, Judge:

On June 8, 1981, appellant appeared before the Honorable Richard D. Grifo in the Court of Common Pleas of Northampton County and entered a plea of guilty to a charge of issuing a bad check, in violation of section 4105 of the Crimes Code of Pennsylvania. Specifically he was charged with having issued check no. 182, dated December 21, 1980, in the amount of $245.98, made payable to the order of Joe’s Market, drawn on the First Valley Bank of Easton, Pennsylvania, which check was subsequently refused for insufficient funds.

At the time of the court proceedings before Judge Grifo on October 1, 1981, Boyce was serving a prison term of not less than one nor more than two years on another conviction.

The court sentenced as follows:

The sentence of the Court is that you, Dan Boyce, pay the cost of prosecution. Make restitution in full in the amount of $245.98. And that you be incarcerated in the Northampton County Prison for a period of not less than six months nor more than twelve months. And that six to twelve months shall be consecutive to the present sentence that you are serving.
However, when and if you become eligible for work release under the present sentence that you are serving, namely the one to two years, when you become eligible for work release, if you do under that sentence, this sentence should not impede you from becoming eligible for work release.

Sentencing Record at 4.

From the judgment of sentence rendered October 1, 1981, appellant has taken this direct appeal.

Pennsylvania Rule of Criminal Procedure 1410, entitled “Motion to Modify Sentence,” reads as follows:

A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence.

No such motion to modify sentence was filed in this case, but rather a direct appeal was taken from the judgment of sentence.

The Comment to Pa.R.Crim.P. 1410 reads as follows:

Comment: This rule provides a procedure whereby a motion to modify sentence must be raised in the first instance before the sentencing court, thereby giving that court the first opportunity to modify the sentence. If the case proceeds to an appellate court, the Rule 1405 requirement that the trial judge state on the record the reasons for imposing a sentence will provide a record concerning the sentence. However, this procedure does not affect the court’s inherent power to correct an illegal sentence, or obvious and patent mistakes in its orders, at any time. Cf. Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970).
Adopted May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978.

We hold that where an appellant desires to challenge his sentence on the grounds of harshness and fails to file a motion to modify his sentence, such inaction constitutes waiver. Under the procedure followed instantly, the trial judge did not receive the first opportunity to modify the sentence. Commonwealth v. Ruschel, 280 Pa.Super. 187, 421 A.2d 468 (1980).

We hold therefore that the issue before us has been waived and, accordingly, we affirm the judgment of sentence. Jurisdiction of the Superior Court of Pennsylvania is relinquished and the lower court is directed to enforce its sentence.

      . § 4105. Bad checks
      (a) Offense defined.—A person commits an offense if he issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.
      (b) Presumption.—For the purposes of this section as well as in any prosecution for theft committed by means of a bad check, an issuer is presumed to know that the check or order (other than a post-dated check or order) would not be paid, if:
      (1) the issuer had no account with the drawee at the time the check or order was issued; or
      (2) payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and the issuer failed to make good within ten days after receiving notice of that refusal.
      (c) Grading.—An offense under this section is a misdemeanor of the second degree if the amount of the check or order exceeds $200; otherwise it is a summary offense.
      18 Pa.C.S. § 4105.

      . Appellant’s sole statement of question involved is:
      I. Whether the judgment of sentence rendered in this case was unduly harsh?
      Brief for Appellant at 2.

      . Although the comments by the Supreme Court’s Criminal Rules Committee are not binding on us, they may be considered as effective aides when interpreting the meaning of the rules and amendments thereto. Commonwealth v. Byrd, 250 Pa.Super. 250, 378 A.2d 921 (1977). Additionally, Pa.R.Cr.P. 2 states that the rules shall be construed “as nearly as may be in consonance with the rules of statutory construction.” Those rules authorize us to consult the report of the committee that drafted the amendment. 1 Pa.C.S. § 1939.

      . We note in passing, however, that the sentencing judge fully explained on the record the reasons for his sentence and we note further that the sentence was well within the statutory limits.
      Imposition of a proper sentence under the Sentencing Code, 18 Pa.C.S. Section 1301, et seq. is a matter vested in the sound discretion of the trial court whose determination is to be respected unless it is a manifest abuse of discretion.

        Commonwealth v. Kostka, 276 Pa.Super. 494, 503, 419 A.2d 566, 571 (1980) (citation omitted). In Commonwealth v. Wiggins, 274 Pa.Super. 617, 623, 418 A.2d 577, 580 (1980), we stated that, “ ‘if a sentence imposed is within statutory limits there is no abuse of discretion unless the sentence is so manifestly excessive so as to inflict too severe a punishment.’ ” (Quoting from Commonwealth v. Person, 450 Pa. 1, 4-5, 297 A.2d 460, 462 (1972)).


author: WIEAND, Judge: MONTEMURO, Judge, dissenting:

text:
    450 A.2d 85
    R. B. EQUIPMENT COMPANY, Appellant, v. WILLIAMS, SHIELDS, SNYDER & GOAS; Feeser Supply Co.; Shamokin Ready Mix Concrete Co.; Coplay Cement Manufacturing Co.; and Allentown Portland Cement Co., Division of National Gypsum Co.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1981.
    Filed Sept. 3, 1982.

      Bernadette Barattini, Harrisburg, for appellant.
    Robert Louis Walsh, Sunbury, for appellees.
    Before WICKERSHAM, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

R. B. Equipment Company, an assignee of a general contractor, filed an eleven count complaint in trespass and assumpsit against various manufacturers and suppliers of allegedly defective cement and concrete used in constructing roads, sidewalks, curbing and stairs in a public school project. The complaint contained alternate theories of recovery including breach of contract, breach of implied warranties, and liability under Section 402A of the Restatement (Second) of Torts. Preliminary objections in the nature of a demurrer were sustained to those three counts of the complaint which relied on Section 402A of the Restatement (Second) of Torts because, the trial court held, there were no injuries or damages to third persons and R. B. Equipment Company’s claim, if any, was “not cognizable as a products liability claim.” R. B. Equipment Company filed the instant appeal. We quash.

It is well established that an order dismissing fewer than all counts of a multi-count complaint is interlocutory and unappealable because the appellant is not out of court. See: Veno v. Meredith, 295 Pa.Super. 419, 441 A.2d 1302 (1982); Johnson v. National Life and Accident Insurance Co., 293 Pa.Super. 200, 438 A.2d 1004 (1981); Stengena v. Madden, 291 Pa.Super. 364, 435 A.2d 1269 (1981); Tunstall v. Penn Federal Savings and Loan Association, 287 Pa.Super. 511, 430 A.2d 1007 (1981); Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 430 A.2d 321 (1981); Giannini v. Foy, 279 Pa.Super. 553, 421 A.2d 338 (1980).

In the instant case, although preliminary objections were sustained to counts of the complaint setting forth claims under Section 402A of the Restatement, the breach of contract claims for the same damages remain to be determined. It follows that neither appellant nor its damage claim is out of court. Under these circumstances, the order sustaining preliminary objections to the 402A counts of the complaint is clearly interlocutory and unappealable.

The appeal is quashed.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge, dissenting:

The instant case presents a problem of a complaint sounding in both Assumpsit and Trespass for defective cement and/or concrete used to improve real property belonging to a school authority. The appellant in the instant matter is the assignee of the original plaintiff, the general contractor. Three of the counts in the complaint averred causes of action sounding in tort under Section 402A of the Restatement of Torts 2d. The lower court dismissed those counts on preliminary objections, with leave to amend complaint, but upon argument, the lower court again dismissed the three counts alleging harm under § 402A. From that decision appeal was taken. The majority has decided to quash the appeal as clearly interlocutory and unappealable. Because I would reach the merits of the question, I respectfully dissent.

Appellees, Feeser Supply Co. and Shamokin Ready Mix Concrete Co., question the right to appeal at this time, stating that the order dismissing the counts in trespass is interlocutory and should not be heard, as the case can continue in the court below on the other counts of the complaint.

The case is obviously not utterly “out of court” as it survives on the assumpsit issues. However, this court does not use such a literal interpretation. In Commonwealth v. Osatti, 448 Pa. 72, 74-75, 292 A.2d 313, 315 (1972), the Supreme Court refused to quash an appeal and stated in pertinent part:

... we do not mean to suggest that a final judgment on the original issue raised by the complaint could not have been awaited by the defendants or that upon appealing from such final judgment, the action of the court below . . . could not then have been assigned for error. But, obviously, such a course would not have afforded expeditious procedure for the ultimate disposition of the entire controversy.

The test is whether the order in its “practical aspects” is sufficiently final to be appealable. Bell v. Beneficial Consumer Discount, 465 Pa. 225, 348 A.2d 734 (1975). An order is “final” if it precludes a party from presenting the merits of his claim to the lower court. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). I would therefore consider this cause of action to be appealable because the “practical ramification” is “to completely deprive the litigant of his day in court so far as his claim is concerned.” T. C. R. Realty Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977).

If this action were to be reviewed by the lower court on the assumpsit issues alone, appellant would be deprived of its chance to present any proof or argument on one whole theory of recovery. On that issue, then, its claims would not be examined at the trial level nor would they be available for review on appeal. Therefore I favor discussion of the merits of the argument rather than treating the appeal as interlocutory, and I shall address the issues in this dissenting opinion.

Appellant is the assignee of the general contractor who originally entered into a contract for construction of the Shamokin Area High School Building. A portion of the project included construction of concrete walkways, stairs, curbs, and a roadway. Shortly after construction, these areas began to show serious flaws. The school authority and the contractor went to arbitration on the matter and the authority was awarded $141,998.00 in damages. The contractor then assigned all its causes of action against subcontractors and material suppliers to the appellants, who then instituted this action sounding in both trespass and assumpsit.

The provisions of § 402A are based on strict liability, and are set forth as follows:

§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product,
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

The initial problem with permitting this appellant to bring suit under § 402A is the fact that the assignor of the right to sue in this instance was not the school authority which would qualify as the “ultimate user or consumer”, but the contractor who was in charge of the construction project.

Pa.R.C.P. 2354 states that a successor in interest of a party “shall have all the rights and liabilities of a party to the action.” The successor takes the action as it finds it, and ordinarily it cannot file pleadings which the party to whose interest it succeeded could not have filed. Anderson’s Civil Practice, Comment on Rule 2354.

The contractor was not the ultimate user or consumer of either the cement/concrete or of the stairs, walkways, etc. constructed by him from the products supplied by the appellees. By no stretch of the imagination could the alleged defects in the cement or concrete supplied be found to have been “unreasonably dangerous” to the assignor-contractor or his workmen, and even if the raw materials are considered, for sake of argument, to be “unreasonably dangerous” to the finished products made from them, causing harm to the property of the school authority, that would not permit suit by a third party who merely constructed but had no ownership interest in the damaged property. Appellant, as successor to the interest of the contractor cannot assert an interest that would be, if it existed at all, in the school authority, the ultimate owner or consumer of the product.

Suit by this appellant as assignee of the rights of the contractors on a theory of recovery which could never have been sustained by its assignor was of course improper, and the lower court was correct in dismissing the counts based on a cause of action which could not be sustained by the party-appellant.

We do not need, therefore, to discuss at any length the argument appellant urges as to the materials being the “defective product” which caused “physical harm” to property—presumably to the stairs, curbs, etc. themselves and to the general value of the entire school plant as a result of their disintegration. We will merely remark that the argument is ingenious but not convincing.

The Reporter’s Notes, comment (d), following 402A, for instance, state the following:

d. The rule stated in this Section is not limited to the sale of food for human consumption, or other products for intimate bodily use, although it will obviously include them. It extends to any product sold in the condition, or substantially the same condition, in which it is expected to reach the ultimate user or consumer. Thus the rule stated applies to an automobile, a tire, an airplane, a grinding wheel, a water heater, a gas stove, a power tool, a riveting machine, a chair, and an insecticide. It applies also to products which, if they are defective, may be expected to and do cause only “physical harm” in the form of damage to the user’s land or chattels, as in the case of animal food or a herbicide.

It is apparent that a seller of cement or concrete is not vending a product “sold in the condition, or substantially the same condition, in which it is expected to reach the ultimate user or consumer.” A cause of action in strict liability for personal injury or property damage suffered by an individual consumer is a different matter from economic damage sustained by a middle-man handling a product with which he creates improvements to real estate for an ultimate consumer.

As the court in Posttape Associates v. Eastman Kodak Company, 537 F.2d 751 (3rd Cir. 1976), stated:

The superiority of Section 402A to compensate the average consumer for personal injury or property damage from a defective product is commonly acknowledged. However, there is considerably less enthusiasm for its application in a commercial setting when the damages are consequential and arise from a non-dangerous impairment of quality of the product. Id. at 755.

I would therefore agree with the decision of the lower court which sustains the preliminary objections to the counts of the complaint in this action brought under Section 402A of the Restatement.

      . The named defendants include Feeser Supply Co., Shamokin Ready Mix Concrete Co., Coplay Cement Manufacturing Co. and Allentown Portland Cement Co.


author: BECK, Judge:

text:
    450 A.2d 89
    COMMONWEALTH of Pennsylvania v. Harry J. CRISSY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 8, 1981.
    Filed Sept. 3, 1982.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.

      Patrick J. Kronenwetter, Public Defender, Emporium, for appellant.

      Russell F. D’Aiello, Jr., District Attorney, Emporium, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   BECK, Judge:

Appellant was convicted of possession of cocaine in violation of the Controlled Substance, Drug, Device and Cosmetic Act. 35 P.S. 780-113(a)(16). His only contention is that the ■court below erred in denying his motion to suppress the cocaine introduced against him at trial. We disagree and affirm the lower court’s judgment of sentence.

In reviewing the findings of a suppression court, this Court must determine whether the record “supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).

The arresting officer testified that from a nearby roof, he watched through binoculars an exchange between appellant and a second man that occurred in the comer of a gas station lot about thirty five yards away. He saw appellant transfer a blue and white container to a second man who poured from it three plastic triangular packets approximately one half inch on each side, containing a white substance. After some conversation, the second man shook his head, put the triangular packets in the blue and white container, handed the container back to appellant, and walked away. (N.T. 4, 7.)

The arresting officer had been told by another officer that a week earlier, appellant had admitted that he used cocaine. (N.T. 10.) In addition, an informant who had twice previously provided information that led to arrests had told the arresting officer that he had recently seen appellant selling narcotics. (N.T. 13.)

On the basis of his observations and facts conveyed by informants, the arresting officer radioed two other policemen and requested them to stop appellant. The arresting officer then descended from the roof and joined appellant and the two other policemen in a nearby street. The arresting officer immediately read appellant his Miranda rights. He then asked appellant about the three small white triangular packets that appellant had been displaying in the gas station lot. Appellant replied that he had been showing off a roach clip that his sister had sent him from State College for his birthday. (N.T. 8.)

In response to this reply, and without permission, the officer proceeded to conduct a thorough search of appellant’s person. His search produced the blue and white container, with three small triangular plastic bags containing a white substance later found to be cocaine. The officer then “officially” placed appellant under arrest. (N.T. 8.)

Appellant contends that the cocaine should have been suppressed because it was the fruit of a search incident to an illegal arrest. We disagree. As appellant concedes in his brief, ‘there was a constructive arrest prior to the time when the arresting officer verbally informed appellant that he was under arrest. We hold: (1) that appellant was arrested at the time the arresting officer began to search appellant, before any narcotics had been discovered; (2) that there was ample probable cause for this arrest; and (3) that the search was constitutionally justified as a search incident to an arrest.

When an arrest occurs is a fact which depends on an evaluation of all the surrounding circumstances. An arrest may be constructive or actual. Curran v. Dural, 512 F.Supp. 699 (E.D.Pa.1981). An officer is not required to make any formal declaration of arrest, use the word “arrest,” or apply manual force or exercise “physical restraint as to be visible to the eye” in order to arrest a person. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

When appellant was arrested in this case depends on when appellant could reasonably have concluded from the circumstances that the officer intended to take him into custody, i.e. when there were reasonable grounds to believe that the officer had subjected him to his actual control and will. Bosurgi, supra; accord, Commonwealth v. Brown, 230 Pa. Super. 214, 326 A.2d 906 (1974); Commonwealth v. Haggerty, 282 Pa.Super. 369, 422 A.2d 1336 (1981).

Appellant contends that the arrest took place when the arresting officer’s fellow policemen stopped appellant. This contention is meritless. The Commonwealth’s testimony indicates that there was no restraint exercised upon appellant’s person prior to the arrival of the arresting officer on the scene. We need not decide here whether the stop became an “arrest” when appellant was read his Miranda rights. It is clear, however, that when appellant had been read his rights, had been confronted by an officer with detailed knowledge of the size, number and shape of packets of narcotics concealed on appellant’s person, and had been ordered to place his hands against a wall so that he could be searched, appellant could reasonably assume that he was under arrest. Bosurgi, supra.

At the time the arresting officer began to search appellant, there was probable cause to arrest appellant for illegal possession of narcotics. The arresting officer knew inter alia about an informant’s reports about appellant’s drug related activities, about his own observations of appellant’s highly suspicious conduct in the gas station lot, and had reason to believe that appellant was lying about that conduct. This knowledge is at least equivalent to the facts establishing probable cause in Commonwealth v. Norwood, 456 Pa. 330, 319 A.2d 908 (1974).

Since appellant’s arrest was based on probable cause, the search incident to arrest entailed no violation of appellant’s Fourth Amendment rights. Commonwealth v. King, 247 Pa.Super. 443, 372 A.2d 908 (1977). Therefore, the lower court did not err when it refused to suppress the fruits of that search.

Accordingly, the judgment of sentence affirmed.

      . Act of April 14, 1972, P.L. 233, No. 64, as amended, 35 P.S. 780-113(a)(16).

      . We note that the testimony of the arresting officer was that he “frisked” appellant. A frisk is a limited pat down for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). By his own account, the arresting officer conducted not a frisk but a full search. On discovering the plastic container, which could hardly have been a weapon, he seized it and opened it. Moreover, appellant testified that the arresting officer made him place his hands against a wall, searched him several times, and emptied his wallet and pockets. (N.T. 24.)

      . Commonwealth v. Hunt, supra, and Commonwealth v. Santiago, 220 Pa.Super. 111, 283 A.2d 709 (1971), cited by appellant, are distinguishable from the instant case. In those cases, no informant had provided the police with reasonably reliable information concerning the suspect’s activities. Nor did the arresting officer in those cases see, prior to his search, anything as unmistakeably narcotics related as three small white packets in the suspect’s possession.