author: ROWLEY, President Judge:

text:
    629 A.2d 123
    COMMONWEALTH of Pennsylvania v. Alice BARNES, Appellant. COMMONWEALTH of Pennsylvania v. David BARNES, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1993.
    Filed July 22, 1993.

      Dennis G. Kuftic, Edinboro, for appellant in Nos. 210 and 211.
    Kenneth A. Zak, Asst. Dist. Atty., Erie, for Com., appellee.
    Before ROWLEY, President Judge, and JOHNSON and MONTGOMERY, JJ.
   ROWLEY, President Judge:

These consolidated appeals of Alice Barnes and David Barnes, husband and -wife, are taken from the judgments of sentence imposed following their conviction on seven counts of cruelty to animals, 18 Pa.C.S. § 5511(c). Appellants, who ask that the judgments of sentence be vacated and that they be discharged, raise the following issues:

1) Did the trial court err in failing to find that the grant of police power to private corporations such as the Erie Humane Society was an improper delegation of governmental authority and that the search warrants and citations obtained pursuant to that authority were therefore illegal, requiring suppression of the evidence and quashal of the citations?

2) Did the trial court err in failing to find that 18 Pa.C.S. § 5511(c) is unconstitutionally vague and violates due process, as it failed to place appellants on notice that their conduct of neglecting unwanted horses did not fall within the exception for “activity undertaken in normal agricultural operation”?

3) Was the evidence insufficient to sustain appellants’ convictions, where the Commonwealth failed to offer evidence in its case in chief that appellants’ conduct was not “activity undertaken in normal agricultural operation” and failed to rebut evidence offered by appellants that their conduct did in fact constitute such activity?

The events leading up to appellants’ convictions began in May of 1991, when David Philipe, an environmental inspector with the Erie County Health Department, went to appellants’ horse farm, Barnes’ Yard Arabians, to investigate a complaint concerning odors emanating from the farm. Arriving at the farm, where no one was at home, he noticed a strong odor of dead or rotting animals. Mr. Philipe walked around the farm and saw the carcasses of dead animals, including two horses. Looking into the barns, he saw several horses that appeared to be undernourished and poorly groomed. Mr. Philipe notified Dr. Barnes of his violation of Health Department regulations and reported his findings to Merle Wolfgang, chief cruelty officer of the Erie Humane Society.

Ms. Wolfgang went to appellants’ farm the day after Mr. Philipe’s visit there and found conditions to be as he had described them. When she returned several days later with the aim of obtaining appellants’ consent to search the property, appellants informed her that they had given the horses away. After leaving appellants’ property, Ms. Wolfgang saw a number of apparently ill horses in a nearby field and learned from the owner of that property that the horses belonged to appellants, who were renting the field. On the basis of her own affidavit, Ms. Wolfgang then secured a search warrant, which she executed with the assistance of other Humane Society agents and state police officers. Seven horses were taken from the rented field, and subsequent examination by a farrier and a veterinarian revealed that all of these horses were suffering from numerous, severe, and chronic health problems.

Appellants were found guilty before a district justice of ten counts of cruelty to animals. Following sentencing, they appealed to the Court of Common Pleas of Erie County, where they were convicted, following a non-jury trial de novo, of seven counts of the same offense. After their post-verdict motions were denied, Alice Barnes was sentenced to concurrent terms of imprisonment of thirty days on each of the seven counts and to forfeiture of the seven horses involved, and David Barnes was sentenced to concurrent terms of imprisonment of ninety days on each count, forfeiture of the horses, and a $300.00 fine. These timely appeals followed.

Appellants’ first issue concerns the following provisions of the cruelty to animals statute, 18 Pa.C.S. § 5511:

(i) Power to initiate criminal proceedings. — An agent of any society or association for the prevention of cruelty to animals, incorporated under the laws of the Commonwealth, shall have the same powers to initiate criminal proceedings provided for police officers by the Pennsylvania Rules of Criminal Procedure. An agent of any society or association for the prevention of cruelty to animals, incorporated under the laws of this Commonwealth, shall have standing to request any court of competent jurisdiction to enjoin any violation of this section.
(1) Search warrants. — Where a violation of this section is alleged, any issuing authority may, in compliance with the applicable provisions of the Pennsylvania Rules of Criminal Procedure, issue to any police officer or any agent of any society or association for the prevention of cruelty to animals duly incorporated under the laws of this Commonwealth a search warrant authorizing the search of any building or any enclosure in which any violation of this section is occurring or has occurred, and authorizing the seizure of evidence of the violation including, but not limited to, the animals which were the subject of the violation____
(m) Forfeiture. — In addition to any other penalty provided by law, the authority imposing sentence upon a conviction for any violation of this section may order the forfeiture or surrender of any abused, neglected or deprived animal of the defendant to any society or association for the prevention of cruelty to animals duly incorporated under the laws of this Commonwealth.

18 Pa.C.S. § 551 l(i, l, m).

Appellants assert that these provisions are an unconstitutional delegation of governmental authority, violative of the Fourth Amendment to the United States Constitution and of several provisions of the Pennsylvania Constitution, namely, Article I, Section XV (special criminal tribunals); Article II, Section I (legislative power); Article III, Section XXXI (delegation of certain powers prohibited); Article IV, Section II (duties of governor); and Article V, Section X(c) (concerning the power of the Supreme Court to prescribe general rules of judicial administration). In effect, appellants argue, the provisions quoted above

allow[ ] the creation of “vigilante” groups — private individuals who are vested with authority to criminally arrest and prosecute the very citizens to whom they are philosophically opposed — which exceeds the power of the legislature and is contrary to the most basic notions of criminal justice.

Brief for Appellants at 13. In considering the specific arguments made by appellants in support of their claim, we are mindful that

appellants] carr[y] a heavy burden of persuasion. A legislative enactment enjoys a strong presumption in favor of constitutionality and will not be invalidated unless it clearly, palpably, and plainly violates the Constitution. In determining the legislature’s intent in writing the statute at issue, we presume that the legislature did not intend to violate the state or federal Constitution. All doubts must be resolved in favor of a finding of constitutionality.

Jenkins v. Hospital of the Medical College of Pennsylvania, 401 Pa.Super. 604, 616, 585 A.2d 1091 (1991) (en banc), alloc, granted, 529 Pa. 669, 605 A.2d 334 (1992) (citations omitted).

Appellants contend, first, that delegating to the Erie Humane Society the powers enumerated above violates both the grant of executive power to the governor to enforce the criminal laws, set forth in Article IV, Section II of the state Constitution, and the prohibition, contained in Article III, Section XXXI, against the delegation by the legislature of municipal powers to a private corporation. In support of this contention, appellants cite two appellate cases, Kellerman v. City of Philadelphia, 139 Pa.Super. 569, 13 A.2d 84 (1940), and Wilson v. School District of Philadelphia, 328 Pa. 225, 195 A. 90 (1938).

At issue in Kellerman was the constitutionality of a statutory provision giving to the Director of Public Health of the City of Philadelphia the power to issue permits allowing barbershops to operate beyond prescribed hours when, in the Director’s opinion, public necessity required the granting of such permits. This Court upheld the trial court’s decree enjoining the enforcement of the provision. Such a delegation did not violate the Constitution, the Court explained, if “the actual enforcement of the law was controlled by a standard ... in some degree extraneous to and independent of the mind and judgment of the enforcing officer.” 139 Pa.Super. at 575, 13 A.2d at 86. In the case before the Court, there was no such extraneous standard; rather, the legislature had vested in the Director of Public Health sole discretion to determine the meaning of the term “public necessity.” For that reason, this Court held that the challenged provision was an unconstitutional delegation of legislative power.

A similar result was reached in Wilson, where the School District of Philadelphia appealed the trial court’s decree that the Board of Public Education be restrained from levying certain taxes for school purposes. Because the legislature had not enacted a tax rate, but had empowered the Board to establish a rate, this Court concluded that the legislation in question was an unconstitutional delegation of the taxing power to an appointive board.

In both of the cited cases, the concern of this Court was with the delegation of legislative power to an official or group of officials whose decisions would not be guided by any standard “extraneous to or independent of’ their own judgment. The case before us does not present such a situation. The power of agents of the Erie Humane Society to initiate criminal proceedings under 18 Pa.C.S. § 5511(i) is circumscribed by the Rules of Criminal Procedure. Section 5511(1) authorizes “any issuing authority” to issue search warrants to agents of the Society, but only “in compliance with the applicable provisions of the Pennsylvania Rules of Criminal Procedure.” It is “the authority imposing sentence,” not the Humane Society or its agents, who is empowered by § 551 l(m) to order the forfeiture or surrender of an abused animal to the Society.

In none of these situations do agents of the Erie Humane Society operate as “vigilantes,” unconstrained by any external standards. To the contrary, their actions are regulated by the Rules of Criminal Procedure, by the probable cause requirement for the issuance of search warrants, and by the added constraints of case law. Therefore, the cases relied upon by appellants do not persuade us that the challenged provisions effect an unconstitutional delegation of legislative or executive power.

Next, appellants argue that “the determination by the General Assembly that an S.P.C.A. agent may act as a police officer under [Pa.R.Crim.P.] 101 [concerning the means of instituting proceedings in court cases] appears to be an improper usurpation of the rule-making authority given to the Pennsylvania judicial branch under Article V, Section 10(c) of the Pennsylvania Constitution” (Brief for Appellant at 16). To support this argument, appellants cite Kremer v. State Ethics Commission, 503 Pa. 358, 469 A.2d 593 (1983), and Commonwealth v. Dumont, 370 Pa.Super. 155, 536 A.2d 342 (1987), alloc. denied, 519 Pa. 659, 546 A.2d 620 (1988).

In Kremer the Supreme Court considered whether the financial disclosure requirement of the state Ethics Act was intended or should be interpreted to apply to judges. The Court concluded that the challenged provision was unconstitutional as applied because it was an infringement by the legislature upon the power of the judiciary, a co-equal branch of government, to supervise the courts.

In Dumont, which involved the seizure of video poker machines pursuant to search warrants issued by police magistrates of the city of Pittsburgh, this Court considered appellants’ claim that because 42 Pa.C.S. § 1143(a)(1), which sets forth the jurisdiction of the Pittsburgh Magistrate. Court, does not specifically authorize Pittsburgh magistrates to issue search warrants, the magistrates have no power to do so. In the course of its decision upholding the magistrates’ authority to issue search warrants, this Court concluded that “the issuance of a search warrant involves a matter of procedure and is, therefore, subject to the rule making power of the Supreme Court, who may, in the exercise of that power, authorize the issuance of a search warrant where the statute in question has not by clear and express language done so.” 370 Pa.Super. at 166, 536 A.2d at 347.

Neither of these opinions speaks directly to the issue at hand, and appellants do not offer any detailed explanation of their relevance. Moreover, appellants’ argument fails to take into account the fact that in the definitions provision of the Rules of Criminal Procedure, Pa.R.Crim.P. 3(o), “police officer” is defined as “any person who is by law given the power to arrest when acting within the scope of the person’s employment” (emphasis added). Accordingly, we conclude that this claim is without merit.

Appellants contend further that “the investment of authority in untrained private agents also appears to be inconsistent with the requirement in both federal and state Constitutional law that all searches and seizures be ‘reasonable’” (Brief for Appellants at 17). Appellants note that Humane Society agents are not required to take an oath, to undergo formal police training, or to learn the Rules of Criminal Procedure. We decline to hold that these omissions render each and every search conducted by such an agent “unreasonable.” Rather, the reasonableness of searches conducted by Humane Society agents, like those conducted by police officers, is a matter to be decided on a case-by-case basis.

Finally, appellants assert that the dangers inherent in authorizing Humane Society agents to search and arrest are magnified because they are shielded from liability by the “good Samaritan” statute, 42 Pa.C.S. § 8332.2(a). Appellees point out, however, that the statute applies to persons who serve without compensation, not to paid employees such as the agents involved in the present case. In addition, subsection (b) of the statute provides that “[njothing in this section shall be construed as affecting or modifying any existing legal basis for determining the liability, or any defense thereto, of any nonprofit association.” 42 Pa.C.S. § 8332.2(b). We conclude, therefore, that this argument does not entitle appellants to relief.

In their second issue, appellants contend that the statutory provision under which they were convicted is unconstitutionally vague and therefore violates due process because it failed to place them on notice that their conduct did not fall within the exception provided for “activity undertaken in normal agricultural operations.” Following is the statutory definition of the offense of which appellants were convicted:

(c) Cruelty to animals. — A person commits a summary offense if he wantonly or cruelly illtreats, overloads, beats, otherwise abuses any animal, or neglects any animal as to which he has a duty of care, whether belonging to himself or otherwise, or abandons any animal, or deprives any animal of necessary sustenance, drink, shelter or veterinary care, or access to clean and sanitary shelter which will protect the animal against inclement weather and preserve the animal's body heat and keep it dry. This subsection shall not apply to activity undertaken in normal agricultural operation.

18 Pa.C.S. § 5511(c). The crucial phrase “normal agricultural operation” is defined as follows:

Normal activities, practices and procedures that farmers adopt, use or engage in year after year in the production and preparation for market of poultry, livestock and their products in the production and harvesting of agricultural, agronomic, horticultural, silvicultural and aquicultural crops and commodities.

18 Pa.C.S. § 5511(q). According to appellants, it is a normal practice in the horse farming business to neglect horses that are no longer wanted and are going to be sent to “killer pens” at the livestock auction and then sold for dog food.

It is the case, as appellants contend, that a statute is unconstitutionally vague if “it fails to provide reasonable notice of the conduct to the person charged with violating its prohibitions.” Commonwealth v. Gonzalez, 403 Pa.Super. 157, 165, 588 A.2d 528, 532 (1991). If persons of common intelligence must necessarily guess at the meaning of the statute’s terms and differ as to the statute’s application, the statute will be held to be violative of due process. Id.

However, the constitutional prohibition against vagueness does not invalidate every statute which could have been drafted with greater precision. Due process requires only that the law give sufficient warning so that individuals may conform their conduct so as to avoid that which the law forbids.

Id. at 166, 588 A.2d at 533 [citing Commonwealth v. Westcott, 362 Pa.Super. 176, 196, 523 A.2d 1140, 1149-50 (1987), appeal denied, 516 Pa. 640, 533 A.2d 712 (1987) ]. Where, as here, the case does not involve a claim that the statute is unconstitutional on its face because it infringes on First Amendment rights, we are required to measure the terms of the statute against the conduct engaged in by appellants. Commonwealth v. Tavares, 382 Pa.Super. 317, 324, 555 A.2d 199, 203 (1989).

Applying these principles to the case at bar, we conclude that the statute is not unconstitutionally vague. Although the term “[n]ormal” is not defined, we are instructed by the Statutory Construction Act, 1 Pa.C.S. § 1903, see Commonwealth v. Tavares, supra, to construe terms in accordance with their “common and approved usage.” The dictionary defines “normal” as “conforming with or constituting an accepted standard, model, or pattern; ... natural; standard; regular.” Webster’s New Universal Unabridged Dictionary, 2d ed. (1983). That the exception for “activity undertaken in normal agricultural operation” applies only to routine and accepted agricultural practices is further emphasized by the definition’s reference to “activities ... engage[d] in year after year ...” (emphasis added). From these definitions, persons of common intelligence could be expected to conclude that appellants’ utter neglect of their horses, as described above, would not fall within the purview of the exception. To insist that the statute provide a detailed list of particular activities that fall within the exception would, we think, be to demand the type of “greater precision” which our case law does not require. Accordingly, appellants’ second claim is without merit.

In their third issue, appellants contend that the evidence was insufficient to support their convictions because the Commonwealth failed to prove beyond a reasonable doubt that their actions did not constitute “activity undertaken in normal agricultural operation.” Central to appellants’ argument is the assertion that their non-inclusion within this exception is a material element of the offense and that the burden of proving their non-inclusion beyond a reasonable doubt therefore falls upon the Commonwealth.

We disagree. In Commonwealth v. Saccol, 384 Pa.Super. 161, 557 A.2d 1095 (1989), this Court analyzed a similar burden-of-proof issue:

When a statute defining an offense contains an exception, in the enacting clause, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception, but if the language of the clause defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the pleader may safely omit any such reference, as the matter contained in the exception is the matter of defense and must be shown by the accused.

Id. at 174, 557 A.2d at 1102 [quoting Commonwealth v. Stoffan, 228 Pa.Super. 127, 323 A.2d 318 (1974)]. Applying this standard, we conclude that the “normal agricultural operation” exception contained in 18 Pa.C.S. § 5511(c) is entirely separable from the clause defining the offense and is therefore a “matter of defense.” Under our case law, the burden is not upon the-Commonwealth to prove a negative, i.e., that appellants do not fall within this exception. Id. at 174, 557 A.2d at 1100. Rather, “where the defendant comes forward with some evidence that he [fell within the exception], the burden shifts to the Commonwealth to prove [that he did not] beyond a reasonable doubt.” Id. at 172, 557 A.2d at 1101.

With this understanding, we turn to the evidence offered at trial to determine whether it was sufficient to sustain appellants’ convictions. A Commonwealth witness, Herbert Miller, testified that, as far as he knew, appellants “were in the market to sell registered horses” (N.T., 10/30/91, at 51). Carrie Morton, who was employed at Dr. Barnes’ veterinary clinic, testified that appellants had several times discussed with her the market for horses and the possibility of selling them at a livestock sale in Herman, New York, where horses are sold “for private buying or for meat” (N.T., 10/30/91, at 26). However, they did not sell any horses there. Ms. Morton testified further that she was familiar with the livestock sale in question:

Q: ... Have you been able to observe any animals that appeared to be in the conditions of [appellants’] horses being sold there for meat?
A: Yes.
Q: Okay, and what — are they put in a pen called a killer pen?
A: Yes.
Q: For the purpose of being sold for meat?
A: Yes.
Q: Are they ... horses that people no longer want?
A: Right.
Q: Okay. Do they [generally] appear in the same condition as [appellants’] horses in terms of being neglected?
A: Yes.
Q: Are you familiar with any practice or procedure in the horse industry regarding the neglecting of horses for sale ... for meat ... ?
A: Yes.
Q: What is that practice, ma’am?
A: Well, once they’re — once you have decided not to keep a horse, you’re not going to spend money on it. And number two, at the killer pen, they are neither fed nor watered until they are taken away.
Q: All right. Prior to getting — those horses getting there, though, is the practice — is there any practice of providing a medical — veterinarian care to them for feeding?
A: I don’t think so.
Q: All right. Are they generally fed just water and hay and spend time in whatever condition they are—
A: Whatever it takes to get them to the pen.

N.T., 10/30/91, at 27-29. On cross-examination, Ms. Morton acknowledged that she was not familiar with the conditions under which appellants’ horses had been kept, and that because the weight of the horse would be “a factor in how much the meat person pays” (N.T., 10/30/91, at 37) for the animal at the livestock sale, a seller would receive more money for a larger horse than for a smaller one. On redirect she testified as follows:

Q: ... Is it a common practice among the horsemen to feed ... these animals or care — feed these animals, well, for instance, if they’re going to the pen?
A: Not in — any horse people that I knew that they made there [sic] living from gathering together killer horses, they did not care now [sic] they looked.
Q: These people that gather together these killer horses, they don’t care now [sic] they look. Do you know what they normally feed them?
A: No.
Q: Okay. Would it be — did these horses ever appear to have been fed much at all?
A: Some of the horses that go to the killer pen appear fat.
Q: Okay.
A: Others of them are definitely not.
Q: Okay. Others appear like [appellants’] horses?
A: Yes.

N.T., 10/30/91, at 42.

Linda Reed, who had worked as a stable manager at the establishment where appellants’ horses were taken by the Humane Society, testified for the defense as follows:

Q: Are you familiar with any common practice in the horse industry regarding the — essentially, what could be called the neglect and care of horses that are intended for sale as meat?
A: Yes.
Q: What is that practice?
A: If a person has an animal they no longer want and then intend to sell it for meat, the horse, essentially, isn’t going to get care.
Q: Okay. No vet care or anything like that?
A: No.
Q: What about food?
A: Minimum amounts of food or are you speaking of at the killers or before?
Q: Well, yeah, even before.
A: If the person intends to take the horse to the killers, then [it] depends on what kind of meat they’re intending to sell it for. If it’s going to be dog food, a person isn’t going to certainly put any money into the horse.

N.T., 10/30/91, at 48. According to Ms. Reed, the price for horses being sold for dog food was 47 or 48 cents a pound and that because of the depressed state of the market for Arabian horses, appellants’ horses would have obtained the same price even if sold for other purposes. Ms. Reed also testified as follows:

Q: ... [A]re there any farms that you’re aware of that like collect these animals for dog food?
A: I don’t know of any farms locally. I know that there is — Ohio is supposed to have two meat packing plants____ Supposed to be a new one in Ohio. I don’t know exactly where it is.
Q: The horses that are collected for sale there, are they— would they look similar to the conditions of [appellants’] horse that you saw?
A: It’s possible, certainly.
Q: Okay. Once they’re at these killer pens, okay, do you know how long they’ll stay at these pens sometime?
A: It usually isn’t a very long period. Occasionally you’ll — there would be a horse that can stay there up to a month.
Q: Okay. And during this period of time, what kind of care do they get?
A: Minimal.
Q: And what’s minimal? •
A: Hay, water, just so the horse doesn’t—
Q: Would they get any medical treatment at all?
A: No.
Q: Okay. Any hoof picking?
A: No.
Q: For that matter, any deworming or delousing?
A: No. The horse is there with the intent of being killed shortly.

N.T., 10/30/91, at 49-50. On cross-examination the witness testified as follows:

Q: ... [H]ave you ever gone to those pens, those killer pens?
A: No.
Q: Have you ever been there?
A: And I never want to.
Q: Okay. I’m sure of it. So, this is all based on what you picked up over the years?
A: Yes.
Q: All right. And as far as that aspect of this case, have you ever been involved with any aspect of horse farming in this area, which involved horses being basically not fed, basically left in the condition that you found these horses in, for a length of time prior to being taken to the killer pen?
A: No.
Q: Okay. So, normally from your understanding of the horse industry, that when a horse has decided to be basically sold for purposes of just slaughter for meat, that that period of not feeding, giving minimal or no care, begins once they are — that horse is put in that position — well, is committed ... to that position of being sold for meat?
A: I would have to say that there are instances where the horse arrives that way.
Q: Okay. All right, is that common?
A: No.
Q: Now, if a horse is just simply kept on a horse farm for purposes of breeding and sale, whatnot, just a horse farm—
A: Uh-huh.
Q: —the horses that you found in this case, was that typical of what you would expect to find on your typical horse farm?
A: No.
Q: Okay. In the horse farming industry, as you know it, and you’ve worked in that field, I know you’re interested in horses and the horse farming field as you know it, is there any agricultural purpose that, you’re aware of, for horses to be in the condition that they were found in this case?
A: Not that I know of, and if there were, I certainly wouldn’t want to be involved with it.

N.T., 10/30/91, at 53-54. Asked by defense counsel whether the practice in question existed, the witness replied, “Yes, it does, unfortunately” (N.T., 10/30/91, at 54).

Appellants also refer us to the testimony of Richard Gilmore, a farmer and lawyer, concerning, in defense counsel’s words, “various practices in the farming industry that might be considered cruel except for the fact they are practices within the industry” (N.T., 10/30/91, at 9). These practices include the castration of pigs, the raising of veal calves in confined quarters, and the raising of chickens in cages. Mr. Gilmore acknowledged that he had never been involved in horse farming.

We conclude that the testimony quoted above does not establish appellants’ inclusion within the statutory exception for a “normal agricultural operation.” As to the practice at issue, raising horses to be sent to “killer pens” and then sold for dog food, we have only the testimony of two witnesses, and their testimony is somewhat inconsistent with regard to both the severity and the prevalence of the practice. More importantly, as the trial court noted, appellants cite no testimony indicating that in fact they were in the business of raising horses to be sold for dog food or that they had formed the definite intention of sending the horses in question to “killer pens” for that purpose. Accordingly, we conclude that appellants have failed to bring themselves within the purview of the exception for “normal agricultural operation[s],” and their challenge to the sufficiency of the evidence is without merit.

Judgments of sentence affirmed.

      . Similarly, while appellants contend that under Pa.R.Crim.P. 52 only "law enforcement officers” may file citations, Pa.R.Crim.P. 3(1) defines "law enforcement officer" as "any person, who is by law given the power to enforce the law when acting within the scope of that person's employment” (emphasis added). As explained in the Comment to Rule 52, "[i]t is intended that a wide variety of officials will have the authority to issue citations and shall do so as provided in these rules.”

      . The statute reads as follows:
      (a) General rule. — Except as provided otherwise in this section, no person who serves without compensation, other than reimbursement for actual expenses, as an officer, director or trustee of any nonprofit organization under section 501(c)(3) of the Internal Revenue Code of 1954 (68A Stat. 3, 26 U.S.C. § 501(c)(3)) shall be liable for any civil damages as a result of any acts or omissions relating solely to the performance of his duties as an officer, director or trustee, unless the conduct of the person falls substantially below the standards generally practiced and accepted in like circumstances by similar persons performing the same or similar duties, and unless it is shown that the person did an act or omitted the doing of an act which the person was under a recognized duty to another to do, knowing or having reason to know that the act or omission created a substantial risk of actual harm to the person or property of another. It shall be insufficient to impose liability to establish only that the conduct of the person fell below ordinary standards of care.
      42 Pa.C.S. § 8332.2(a).

      . Appellants did not testify at, or in fact attend, their nonjury trial.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    629 A.2d 133
    COMMONWEALTH of Pennsylvania v. Travis Jerome JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 7, 1993.
    Filed July 29, 1993.

      Timothy A. Lanza, Lancaster, for appellant.
    Joseph C. Madenspacher, Asst. Dist. Atty., Lancaster, for the Com., appellee.
    Before McEWEN, KELLY and CERCONE, JJ.
   KELLY, Judge:

In this case, we are called upon to determine whether an attempted murder conviction merges, for purposes of sentencing, with an aggravated assault conviction (via attempt, pursuant to 18 Pa.C.S.A. § 2702(a)(2)). We hold that these particular crimes do not merge. Therefore, we affirm judgment of sentence.

The facts and procedural history of this case may be summarized as follows. On August 22, 1990, appellant, with the aid of an accomplice, stole a BMW. Using the stolen BMW, the appellant and his accomplice drove to a Domino’s Pizza shop where they attempted a robbery. A locked door, however, thwarted their robbery attempt. Before leaving the scene, though, appellant fired a shot that put a nick in the heavy glass door blocking the entrance to the pizza shop.

Later that evening, Officer Jerry Jack, driving a marked squad car, spotted the stolen BMW backing into a driveway marked with “no trespassing” signs. Shortly thereafter the stolen BMW entered the public roadway and proceeded at a high rate of speed. Officer Jack pursued the stolen BMW. After observing numerous moving violations, Officer Jack activated his overhead emergency lights. During the chase that ensued, Officer Jack saw the appellant rise up through the sunroof of the stolen BMW three times. While appellant elevated himself through the sunroof, the officer got a good view of appellant, watched appellant point what the officer determined was a gun, and observed several flashes. In concert with one of those flashes, the officer felt and heard an impact on the front of his squad car. Later inspection revealed a hole in the front of Officer Jack’s car one inch below the point where the projectile would have penetrated the windshield and struck Officer Jack. Expert analysis determined that a lead object made the hole in Officer Jack’s car.

Appellant was arrested on August 23, 1990, and charged with multiple criminal offenses pursuant to this conduct of August 22,1990. Subsequent to the arrest, appellant’s mother voluntarily consented to a warrantless search of appellant’s bedroom in the family home. During that search, police officers seized evidence.

Appellant filed a pre-trial motion on December 21, 1990, to suppress the evidence seized by the police without a warrant. After an evidentiary hearing, the court denied appellant’s motion to suppress. Appellant filed a supplemental pre-trial motion on March 1, 1991, which he later withdrew.

On September 3, 1991, appellant filed two pro se motions. First, appellant moved for and was granted new court-appointed counsel. Second, appellant moved for and was denied nominal bail pursuant to Rule 1100 of Pennsylvania’s Rules of Criminal Procedure.

The case then proceeded to a jury trial where the jury found appellant guilty of all but one of the crimes charged. Appellant filed post-verdict motions for arrest of judgment and a new trial. These motions were timely filed and covered all of appellant’s issues raised herein with the exception of issue V. The court denied appellant’s post-verdict motions.

At sentencing, the court sentenced appellant for six offenses to an aggregate of seventeen to thirty-six years. Appellant subsequently filed this timely appeal.

Appellant raises the following issues for our review:

I. WHETHER THE COURT ERRED IN DENYING [APPELLANT’S] MOTION FOR RELEASE UPON NOMINAL BAIL BECAUSE OF INCARCERATION FOR A PERIOD IN EXCESS OF ONE HUNDRED EIGHTY (180) DAYS.
II. WHETHER THE COURT ERRED IN DENYING [APPELLANT’S] MOTION TO SUPPRESS EVIDENCE SEIZED FROM DEFENDANT’S BEDROOM PURSUANT TO A WARRANTLESS SEARCH WITHOUT DEFENDANT’S CONSENT.
III. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE VERDICT IN THAT THE COMMONWEALTH DID NOT PROVE BEYOND A REASONABLE DOUBT THAT [APPELLANT] POSSESSED THE REQUISITE SPECIFIC INTENT TO KILL OR INFLICT SERIOUS BODILY INJURY UPON OFFICER JERRY JACK.
IV. WHETHER THE VERDICT WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE IN THAT IT WAS NOT PROVEN BEYOND A REASONABLE DOUBT THAT [APPELLANT] INTENDED TO KILL OR INFLICT SERIOUS BODILY INJURY UPON OFFICER JERRY JACK.
V. WHETHER THE SENTENCE IMPOSED UPON [APPELLANT] IS ILLEGAL BECAUSE THE OFFENSE OF AGGRAVATED ASSAULT MERGES
WITH THE OFFENSE OF ATTEMPTED MURDER AND WHETHER THE SENTENCE IS MANIFESTLY EXCESSIVE AND CONSTITUTES AN ABUSE OF DISCRETION.

Appellant’s Brief at 4.

After a thorough review of the record, the briefs of the parties, the applicable law, and the opinion of the trial court, we hold that appellant’s first four questions raised on appeal are without merit. The trial court opinion fully discusses and correctly disposes of appellant’s first four issues. Therefore, with regard to those issues, we affirm on the basis of the trial court opinion.

The trial court reasoned that appellant waived all other issues which he did not address in his post-verdict motions brief. Trial Court Opinion at 3. We disagree. The issue of legality of sentencing is not waived by failure to raise the issue at trial or in post-verdict motions. Hence, we address the contentions presented in appellant’s fifth issue.

Appellant’s fifth argument presents two subissues. First, appellant argues that his aggravated assault conviction merges with his attempted murder conviction for purposes of sentencing. We disagree.

In the companion cases of Commonwealth v. Leon Williams and Commonwealth v. Weakland, our Supreme Court refined the doctrine of merger by instituting a modified two-step analysis. This refinement narrowed the scope of the merger doctrine such that, for sentencing purposes, merger only occurs when the “same facts support convictions of lesser included offenses.” Commonwealth v. Weakland, 521 Pa. 353, 363, 555 A.2d 1228, 1233 (1989) (emphasis added); Commonwealth v. Williams, 521 Pa. 556, 56, 559 A.2d 25, 29 (1989).

A lesser included offense is:

[o]ne composed of some, but not all, of the elements of the greater crime, and which does not have any element not included in the greater offense____ When it is impossible to commit a particular crime without concomitantly committing, by the same conduct another offense of lesser grade or degree, the latter is, with respect to the former, a “lesser included offense.”

Black’s Law Dictionary, 812 (5th Ed.1979) (emphasis added). Accord Commonwealth v. Fuller, 396 Pa.Super. 605, 614-15, 579 A.2d 879, 884 (1990). For two crimes to merge, the Weakland/Williams analysis requires (1) that there exist a lesser included/greater offense relationship between the crimes involved and (2) that the same facts simultaneously establish the basis for both crimes. Commonwealth v. Servich, 412 Pa.Super. 120, 134, 602 A.2d 1338, 1345 (1992), allocatur denied, 531 Pa. 646, 612 A.2d 984 (1992). See also Commonwealth v. Williams, supra; Commonwealth v. Weakland, supra.

Because the shot fired by appellant, striking the front of Officer Jerry Jack’s squad car, is the one act that simultaneously forms the basis for both aggravated assault and attempted murder, only the first step of the Weak-land/Williams test is at issue here. Thus, if aggravated assault is a lesser included offense of attempted murder, the crimes will merge. Commonwealth v. Anderson, 416 Pa.Super. 203, 221, 610 A.2d 1042, 1051 (1992) (en banc) (citing Commonwealth v. Weakland, supra 521 Pa. at 363, 555 A.2d at 1233).

The rubric of aggravated assault includes several distinct crimes. These crimes include both inchoate and completed offenses. See Commonwealth v. Anderson, supra 416 Pa.Super. at 221, 610 A.2d at 1051. The specific facts in this case present a question of first impression — whether a particular form of aggravated assault (via attempt, pursuant to 18 Pa. C.S.A. § 2702(a)(2)) bears a lesser included/greater offense relationship with attempted murder.

The statutory definition of aggravated assault, relevant in the instant case, is as follows:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(2) attempts to cause ... serious bodily injury to a police officer ... in the performance of duty

18 Pa.C.S.A. § 2702(a)(2). Thus, aggravated assault (via attempt, pursuant to § 2702(a)(2)) has three basic elements: (1) an attempt to cause, or the actual causation of, serious bodily injury; (2) to a police officer; and (3) in the performance of his or her duty. See In Re Barry W., 423 Pa.Super. 549, 569, 621 A.2d 669, 680 (1993) (en banc) (that protected class of person act “in the performance of duty” is an essential element of aggravated assault pursuant to § 2702(a)(3)).

Attempted murder, on the other hand, requires an intent to kill another human being. See 18 Pa.C.S.A. § 2501. Therefore, attempted murder does not necessarily involve a police officer in the performance of a duty, as aggravated assault under § 2702(a)(2) does. Hence, by definition, aggravated assault (via attempt, pursuant to § 2702(a)(2)) cannot be a lesser included offense of attempted murder. Because no lesser included/greater offense relationship exists between attempted murder and the form of aggravated assault involved in this case, the crimes do not merge for sentencing purposes under Weakland/Williams, supra. See, e.g., Commonwealth v. Williams, supra 521 Pa. at 564, 559 A.2d at 29. Therefore, appellant was legally sentenced for both crimes.

Second, appellant argues that the sentence imposed by the sentencing court was manifestly excessive and constitutes an abuse of discretion. Appellant has satisfied the technical and minimal requirements set forth by our Supreme Court in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) by designating a portion of his brief, “Statement of the Reasons Relied Upon for Allowance of Appeal With Regard to the Discretionary Aspects of the Sentence.” Appellant’s Brief at 24. Allowance of appeal may be granted only when it appears that there exists a substantial question that the sentence imposed was not appropriate under the sentencing code. Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987). See also 42 Pa.C.S.A. § 9781(b).

In deciding if a substantial question exists, “we may not look beyond the statement of questions presented and the concise prefatory 2119(f) statement.” Commonwealth v. Scullin, 414 Pa.Super. 442, 446, 607 A.2d 750, 752 (1992) (citing Commonwealth v. Felix, 372 Pa.Super. 145, 155, 539 A.2d 371, 376 (1988), allocatur denied, 525 Pa. 642, 581 A.2d 568 (1990)). “A substantial question exists where ‘appellant advances a colorable argument that the trial judge’s actions were either inconsistent with the specific provision of the Sentencing Code, or the sentencing process.’” Id. (quoting Commonwealth v. Zelinski, 392 Pa.Super. 489, 499, 573 A.2d 569, 574 (1990)).

Appellant’s sentences are in compliance with the specific provisions of the Sentencing Code. See Pa.Code §§ 303.1-303.9. Furthermore, appellant fails to raise a colorable claim why the particular sentencing scheme imposed by the sentencing court constitutes an abuse of discretion. Therefore, appellant does not raise a substantial question that his sentence was inappropriately fashioned. Accordingly, we deny allowance of appeal.

Allowance of appeal as to discretionary aspects of sentencing denied. Judgment of sentence affirmed.

      . The court sentenced appellant as follows:
      (1) for theft of a BMW automobile, 18 Pa.C.S.A. § 3921, sentence three to six years;

      (2) for conspiracy to commit theft of BMW, 18 Pa.C.S.A. §§ 903, 3921, sentence one to two years;

      Sentences (1) & (2) to be served concurrently with each other, but consecutively to all other sentences.

        (3) for attempted murder, 18 Pa.C.S.A. §§ 901, 2502, sentence four to ten years;

      (4) for aggravated assault, 18 Pa.C.S.A. § 2702(a)(2), sentence nine to twenty years;

      (5) for recklessly endangering another person, 18 Pa.C.S.A. § 2705, crime merged with aggravated assault for sentencing purposes;
      (6) for attempt to commit robbery of pizza shop, 18 Pa.C.S.A. §§ 901, 3701, sentence five to ten years;

      (7) for recklessly endangering another person when firing shot at pizza shop door, 18 Pa.C.S.A. § 2705, sentence one to two years;

      (8) for conspiracy to commit robbery, 18 Pa.C.S.A. §§ 903, 3701, no sentence imposed;
      Sentences (6) & (7) to be served concurrently with each other, but consecutively to all other sentences.
      Transcript of Sentencing Proceedings at 25-27.

      . The trial court opinion provides the following reasoning for its disposition regarding appellant’s issues I through IV.
      Issue I: Under Rule 1100 of Pennsylvania’s Rules of Criminal Procedure, a defendant is entitled to immediate release on nominal bail after a period of pre-trial incarceration in excess of one hundred and eighty days. Pa.R.Crim.P. 1100(e). In calculating the one hundred and eighty days, however, certain time is excluded. Each of the following is excludable from the one hundred and eighty day calculation: (1) delay between complaint filing and arrest, (2) delay due to unavailability of defendant or defendant’s counsel or any continuance granted upon request of defendant or defendant's counsel, and (3) time for which defendant waives Rule 1100. Pa.R.Crim.P. 1100(c). After subtracting the time associated with the listed exceptions, the trial was timely held. Therefore, appellant was not entitled to nominal bail.
      Issue II: A warrantless search made pursuant to the voluntary consent of a party with "common authority” over the premises searched, is valid unless the defendant made an effort to exclude other family members from the area searched. Commonwealth v. Gibbons, 379 Pa.Super. 285, 549 A.2d 1296 (1988). Appellant’s mother voluntarily consented to the search of appellant’s bedroom in the family home and appellant never contended that his mother lacked common authority. Moreover, even if the search were unlawful, the evidence was not introduced against appellant at trial. Therefore, appellant would not be entitled to another remedy pursuant to the criminal law.
      Issue III: The Pennsylvania courts have held that the necessary intent for attempted murder may be inferred from a defendant's conduct of taking aim and firing a shot that narrowly misses the vital organs of another human being. See, e.g., Commonwealth v. Cross, 231 Pa.Super. 148, 331 A.2d 813 (1974). See also Commonwealth v. Harris, 194 Pa.Super. 600, 169 A.2d 576 (1961) (shots fired at officer sitting in a police car sufficient to establish intent to kill, even though none of the shots struck the officer). Therefore, a reasonable jury could infer that the lead projectile that struck the front of Officer Jack’s squad car, narrowly missing the officer’s vital organs, was intended by appellant to kill the officer.
      Issue IV: The weight of the evidence is for the fact finder to determine. Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971). For the court to upset a jury’s verdict, it must appear "from the record that the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice.” Commonwealth v. Laing, 310 Pa.Super. 105, 110, 456 A.2d 204, 207 (1983) (quoting Commonwealth v. Bamhardt, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981)). The trial court's conscience was not shocked by the jury’s verdict and neither is ours.

      . Commonwealth v. Anderson, 416 Pa.Super. 203, 210, 610 A.2d 1042, 1045 (1992) (en banc). See also Commonwealth v. Campbell, 351 Pa.Super. 56, 63, 505 A.2d 262, 265 (1986) (en banc), allocatur denied, 517 Pa. 602, 536 A.2d 1327 (1987) ("legality of multiple sentences, based on a claim that the conviction should have merged for sentencing, is not waived by the failure to raise it” at trial); Commonwealth v. Murphy, 405 Pa.Super. 452, 457, n. 8, 592 A.2d 750, 752 n. 8 (1991) (legality of sentencing can be raised on appeal sua sponte); Commonwealth v. Blassingale, 391 Pa.Super. 395, 402, 571 A.2d 426, 430 (1990), allocatur denied, 526 Pa. 627, 584 A.2d 311 (1990) (legality of sentencing issues "may be raised for the first time on appeal”); Commonwealth v. Murphy, supra, (Kelly, J., concurring) (the court may raise the claim of illegality of sentence even if counsel failed to do so).

      . 521 Pa. 556, 559 A.2d 25 (1989).

      . 521 Pa. 353, 555 A.2d 1228 (1989).

      . The statutory definition of aggravated assault provides:
      (a) Offense defined. — A person is guilty of aggravated assault if he:
      (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to human life;
      (2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to a police officer, firefighter, county adult probation or parole officer, county juvenile probation or parole officer or an agent of the Pennsylvania Board of Probation Parole in the performance of duty or to an employee of an agency, company or other entity engaged in public transportation, while in the performance of duty;
      (3) attempts to cause or intentionally or knowingly causes bodily injury to a police officer, firefighter or county adult probation or parole officer, county juvenile probation or parole officer or an agent of the Pennsylvania Board of Probation and Parole in the performance of duty;
      (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon; or
      (5) attempts to cause or intentionally or knowingly causes bodily injury to a teaching staff member, school board member, other employee or student of any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school while acting in the scope of his or her employment or because of his or her employment relationship to the school.
      18 Pa.C.S.A. § 2702 (emphasis added).

      . Both In Re Barry W. and the instant case involve aggravated assaults on a police officer. In Re Barry W. and the instant case involve two different statutory forms of aggravated assault. In In Re Barry W. the completed form of § 2702(a)(3) was at issue, while the attempt form of § 2702(a)(2) is at issue in the instant case. A review of 18 Pa.C.S.A. § 2702 reveals that under the facts of In Re Barry W. and the instant case, only one material difference exists between the elements of these two statutory forms of aggravated assault: the severity of the harm attempted or inflicted upon a police officer. Under § 2702(a)(3), the perpetrator must attempt to cause, or inflict, "bodily injury" upon an on-duty police officer. Under § 2702(a)(2), on the other hand, the perpetrator must attempt to cause, or inflict, "serious bodily injury" upon an on-duty police officer. Because these two subsections evince a legislative concern with the protection of police officers, and the only material difference between their elements is the severity of the bodily injury attempted or inflicted, the holding of In re Barry W. applies herein.

      . We are not presented with the issue left unanswered in Commonwealth v. Anderson: whether the specific intent required to establish attempted murder and that required to establish aggravated assault (via attempt, pursuant to § 2702(a)(1)) are mutually exclusive, precluding the legal sentencing for both crimes on the basis of the same facts. Commonwealth v. Anderson, supra, at 224-25, n. 9, 610 A.2d at 1053, n. 9. Moreover, although the reasoning in Commonwealth v. Anderson for preclusion of merger of attempted murder and aggravated assault (via attempt, pursuant to § 2702(a)(1)) could provide additional support for the conclusion reached sub judice, we do not rely upon that reasoning. Specifically, Commonwealth v. Anderson reasoned that aggravated assault (via attempt, pursuant to § 2702(a)(1)) and attempted murder could not merge for two reasons. First, both crimes require a distinct, specific intent. Second, § 2702(a)(1) is a first degree felony while attempted murder is a second degree felony, and therefore, aggravated assault could not be a lesser included offense since it carries a greater maximum penalty than attempted murder. Id.


author: OLSZEWSKI, Judge.

text:
    629 A.2d 138
    John A. HORNYAK and Frances M. Hornyak, His Wife, Appellees, v. Harry W. SELL, Jr., Appellant, v. Debra Ann SELL, Appellee.
    Superior Court of Pennsylvania.
    Submitted June 22, 1993.
    Filed Aug. 2, 1993.

      Thomas M. Castello, Pittsburgh, for appellant.
    Nancy J. Norkus, Pittsburgh, for Hornyak, appellees.

      Before OLSZEWSKI, HOFFMAN and BROSKY, JJ.
   OLSZEWSKI, Judge.

This is an appeal from a $5,000 judgment entered against appellant, Harry Sell, Jr. [“Harry”], in favor of John and Frances Hornyak [the “Hornyaks”]. Judgment was entered after the Honorable David R. Cashman found that Harry was obligated to repay a loan. Harry, the Hornyaks’ son-in-law, argues that the Hornyaks failed to establish clear and convincing evidence to rebut the presumption that the money was given to him as a gift. We affirm.

Harry married the Hornyaks’ daughter, Debbie, in 1977. In 1981, while Harry was a medical student and Debbie was employed as a registered nurse, the couple decided to purchase a house. Since their income was limited, Harry determined that he would need a supplemental $10,000 to cover closing costs. He approached both his parents and the Horn-yaks and asked for $5,000 from each. Harry’s father complied with the request, giving Harry a check for $5,000 and inscribing “loan for home” on the “memo” portion of the check. According to Debbie, however, she was adamantly opposed to Harry’s solicitation of her father, since he was struggling to pay college expenses for three children and knew that two more would soon require the same. Debbie testified that Harry assured her that although he was currently still in medical school, “you know that when you are a surgeon, you make a lot of money; and I [won’t] have any problem paying it back, and I [will] pay him back at whatever the interest rate would be.” N.T. 12/15/88 at 23.

Mr. Hornyak testified that Harry initially contacted him, asking for $2,000. Mr. Hornyak replied he could loan him the money. When Harry called later in the month, however, raising the request to $5,000, Mr. Hornyak replied, “you know I don’t have that kind of money on hand.” N.T. 12/15/88 at 8. But after Harry’s expression that he needed the $5,000, Mr. Hornyak arranged to borrow the additional $3,000 against his life insurance policies. He further testified that he gave Harry a $5,000 check with the understanding that Harry would pay the money back at the going rate of interest (14.25% at the time) when he entered practice as a surgeon. N.T. 12/15/88 at 9. Although Mr. Hornyak noted in his checkbook and on his life insurance loan agreements that the funds represented a “loan” to Harry for a down payment on a home, he only wrote the word “house” on the check he made out to Harry. Harry deposited both checks, made out in his name only, into his and Debbie’s joint account.

In 1984, Harry and Debbie separated and later divorced. Pending the divorce, the Hornyaks filed this action against Harry to collect the $5,000 loan. Harry joined Debbie as an additional defendant, claiming that she was liable for contribution if he was ultimately liable to repay the loan. Judge Cashman heard the cause without a jury and found in the Hornyaks’ favor. He entered judgment against Harry alone for $5,000. It is from this judgment that Harry appeals, raising one issue: Did the Hornyaks rebut the presumption that the $5,000 forwarded to a Harry was a gift?

First, we note that applying a presumption of a gift to this case is troublesome. Harry relies on the settled proposition that “[i]f a parent furnishes the purchase money and title to property is taken in the name of a child, a presumption arises that the parent intended the funds to be a gift.” Kohr v. Kohr, 271 Pa.Super. 321, 413 A.2d 687 (1979). The presumption has its genesis in the Restatement (Second) of Trusts, § 443, which provides:

Where a transfer of property is made to one person and the purchase price is paid by another, and the transferee is a wife, child, or other natural object of bounty of the person by whom the purchase price is paid, and the latter manifests an intent that the transferee should not have the beneficial interest in the property, a resulting trust arises.

Id. As Harry correctly notes, § 443 is not limited in its application to the natural children of the party who supplies purchase money, but also applies to persons related by marriage. Mention v. Mention, 257 Pa.Super. 228, 390 A.2d 796 (1978) (applying presumption to a daughter-in-law); Hiester v. Hiester, 228 Pa. 102, 77 A. 419 (1910) (same). The problem, here, however, is that the Hornyaks are not seeking to impose a resulting trust on the property. A resulting trust is an equitable trust, not subject to the statute of frauds, which imposes an obligation on the title holder of property to hold it in trust for the beneficial owner. Here, the Hornyaks sought reimbursement of the $5,000 on the basis of a contractual relationship, which is a distinct, and enforceable, theory of recovery. Kohr, at 329, 413 A.2d at 691. We need not resolve the question of whether the form of relief sought by the Hornyaks should determine whether the presumption applies, however, because we find that even if it did apply, it was rebutted.

In order to rebut the presumption of a gift, the Horn-yaks are obligated to establish their intention to loan the money by clear and convincing evidence. Mention, supra. Our Supreme Court recently explained the “clear and convincing” standard:

[t]he witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts' in issue.

Lessner v. Rubinson, 527 Pa. 393, 592 A.2d 678 (1991). We find that the Hornyaks met this standard.

As we have noted, Mr. Hornyak and Debbie testified that Harry represented that he intended to repay the $5,000 as soon as he graduated from medical school and entered private practice as a surgeon. Mr. Hornyak described in detail the conversations between him and Harry which led up to the day that Harry accepted the check. Moreover, Mr. Hornyak described in detail Harry’s insistence that he not receive the check by mail. Harry thus drove to Mr. Hornyak’s home in State College to accept the check. To all of this, Harry testified only that he “could not recall” the events and that “my perception of [the events surrounding the issuance of the check] in my mind, it was a gift.” N.T. 12/15/88 at 32. Judge Cashman specifically noted that he resolved the issue of credibility against Harry and in favor of the Hornyaks. Trial court opinion at 9.

Furthermore, Mr. Hornyak, a father who works as an insurance salesman and is struggling to pay for five children’s educations, borrowed $3,000 against his life insurance policies in order to collect the money he gave Harry. We agree with the trial court that “it is difficult, if not impossible, for one to contemplate that someone would gift money to a third party who is not their child, even though he might be an in-law, and go into debt to make that ‘gift’ without the expectation that it would be repayed [sic].” Trial court opinion, at 7. Finally, despite the notation on his check that the payment was for a “house,” Mr. Hornyak indicated in his checkbook that the check was drawn as a “loan.” Interestingly, Harry’s father wrote “loan for house” on a check made to Harry for the same purpose as Mr. Hornyak’s. We find this evidence amply sufficient to rebut any presumption that the check was intended as a gift.

We note that Harry places much emphasis on the fact that no writing supported this contract, and that the check contained no indication that it was meant as a loan. First, it is clear that Harry could orally agree to repay the loan, since “the Pennsylvania Statute of Frauds does not contain a provision for agreements that cannot be performed within one year, the principle obstacle confronting such agreements.” Kohr, at 330, 413 A.2d at 691 n. 3. Second, our review of analogous caselaw indicates that Mr. Homyak’s signing a check for deposit in Harry’s account does not conclusively establish that it was meant to be a gift. See Lessner, supra, (depositing money into a joint bank account, standing alone, does not establish a gift); Estate of Chiara, 467 Pa. 586, 359 A.2d 756 (1976) (savings certificates drawn in favor of plaintiff found to be a gift in light of statement by drawer that plaintiff should “keep it for myself to pay for the care of what me and may wife had done for her through the years”). Thus, Judge Cashman did not err in enforcing Harry’s oral agreement to repay the $5,000.

Judgment affirmed.

      . This lawsuit was transferred to the Family Division of the Court of Common Pleas in Allegheny County so that it could be resolved concurrently with Debbie and Harry’s equitable distribution claims as well as a lawsuit filed by the Sells against Debbie for repayment of the $5,000 loan which they made toward the home purchase. No aspect of either related action is before us today.

      . Judge Cashman also found against Harry in his action against Debbie for contribution. Harry does not appeal that determination; we therefore limit our discussion to the issues squarely presented to us.

      . We will apply this standard with equal force to a trial judge who sits as factfinder, as in this case.

      . This prediction certainly came to fruition. The trial judge, who also sat for the parties’ equitable distribution claims, noted in his opinion that Harry, who worked as a hospital resident at the time he and his wife purchased the home earning approximately $28,000 per year, earned an annual income of $127,000 at the time of the trial on this matter. Trial court opinion at 8.

      . We also reject Harry’s corollary argument that there was no meeting of the minds to establish a loan agreement. Our discussion of the evidence above clearly indicates to the contrary.


author: HESTER, Judge.

text:
    629 A.2d 142
    COMMONWEALTH of Pennsylvania, Appellant, v. Brian Dale WHITEHEAD, Jr.
    Superior Court of Pennsylvania.
    Argued April 13, 1993.
    Filed Aug. 3, 1993.

      Henry L. Borger, Asst. Dist. Atty., Warren, for Com., appellant.
    Barry L. Smith, Warren, for appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   HESTER, Judge.

The Commonwealth appeals from the October 12, 1992 order suppressing statements made by Brian Dale Whitehead, Jr., appellee, in which he admitted to drinking before a traffic accident, as well as the results of the blood test taken after he allegedly drove under the influence of alcohol. The Commonwealth contends that this suppression order will terminate or substantially hinder its prosecution. The Commonwealth further contends that the trial court misapprehended the legal consequences of the evidence adduced by the prosecution at the suppression hearing. We affirm in part and reverse in part.

Preliminarily, we note that since the Commonwealth is the party filing this appeal, it is entitled to appellate review when it has certified in good faith that the suppression order, if given effect, would substantially handicap or terminate its prosecution. The Commonwealth has made that certification. Therefore, we conclude we have jurisdiction to entertain this appeal. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Toanone, 381 Pa.Super. 336, 553 A.2d 998 (1989).

Our standard of review for orders suppressing evidence after a hearing is clear. In Commonwealth v. Toanone, 381 Pa.Super. 336, 340, 553 A.2d 998, 999 (1989), we stated:

In reviewing the findings of a suppression order where the Commonwealth is appealing, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (plurality opinion). While we are bound by the lower court’s findings of fact if supported by the record, we are not bound by the court’s legal conclusions which are drawn from the facts of the case. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

Viewed in this manner, the record reveals the following.

On April 22, 1992, Sheffield Township Police Officer George R. Jashurek received a radio dispatch from the Warren County Sheriffs office advising of a vehicular accident. When Officer Jashurek arrived at the scene, he discovered two trucks damaged as the result of a head-on collision. One truck was on the side of the road and the other was located approximately forty feet in a nearby wooded area. He testified that both drivers were injured and that he detected the odor of alcohol on the breath of each driver. He further noted that appellee’s speech was slurred and his eyes were glassy and bloodshot. Officer Jashurek urged appellee to enter the ambulance since he was bleeding but appellee repeatedly insisted that he first needed to check his truck. Meanwhile, Officer Jashurek was occupied fully with ensuring that the other driver also received prompt medical attention. Therefore, Officer Jashurek delayed investigating the scene until after the injured motorists were taken to the hospital. He subsequently recovered a six-pack of sixteen ounce beer within a thirty foot radius of appellee’s vehicle, and he noted that there was blood on one of the beer cans. The other vehicle was not located near appellee’s truck.

Based on his observations at the scene, Officer Jashurek went to the Warren County General Hospital. He testified that he did so both because he had not obtained appellee’s license, registration, and insurance information and because he suspected appellee of driving under the influence. During his investigation, he asked appellee how the accident occurred and whether he had been drinking. Appellee conceded he had two beers and some wine prior to the accident. Thereafter, Officer Jashurek placed appellee under arrest premised on his observations at the scene including: appellee’s staggering gait, the strong odor of alcohol, his glassy eyes, the open cans of beer, and, in addition, appellee’s statement. Appellee thereafter signed a consent form granting permission to test his blood. The result revealed a blood alcohol content of .17 percent.

Appellee filed a suppression motion claiming that he was not properly accorded his Miranda rights before being questioned. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He further asserted that he illegally was subjected to a custodial interrogation prior to being given his Miranda rights. On cross-examination, Officer Jashurek stated he gave appellee his Miranda warnings. Thereupon, the following colloquy took place regarding appellee’s questioning at the hospital:

THE COURT: Officer, I want to make it clear, did you say, you did or did not, read the Miranda Rights to the Defendant at the hospital?
THE WITNESS: After I had gotten the information and I placed him under arrest then I read him his Miranda rights.
THE COURT: Well, have I got this right, you arrested him for driving under the influence?
THE WITNESS: Right.
THE COURT: Then you read him the Rights?
THE WITNESS: Yes, sir.
THE COURT: And you questioned him before you read him the Rights about drinking prior to the accident, his statement made at that time drinking wine and a couple of beers?
THE WITNESS: Yes, I asked him for his driver’s license, registration, and insurance and basically what happened at the accident and if he had been drinking.
THE COURT: He tells you what he told you then after that you read him Miranda rights and arrested him; is that right? Have I got that sequence correct?
THE WITNESS: I arrested him, then read him his Miranda rights.
THE COURT: Thank you. You may step down.
MR. BORGER: The Commonwealth rests.
MR. SMITH: Defendant has no witnesses to present, your Honor.

Notes of Testimony, “N.T.”, 10/12/92 at 14-15. Thereupon, the trial court suppressed appellant’s statements as a result of not being given his Miranda rights before being questioned while in custody.

The Commonwealth first contends that Miranda warnings did not apply since the defendant must be both in custody and under interrogation. Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991). It notes that these are two separate requirements and Miranda applies only when they both are present. Id. In this instance, the Commonwealth avers that appellant was not in custody. The Commonwealth argues that custody is defined as physically depriving one of freedom in a significant way so that he is aware his freedom is restricted.

The Commonwealth notes that there were inadequate reasons for appellee to conclude that he was in custody. When Officer Jashurek questioned appellee at the hospital, it began as a general inquiry. During this time, appellee was receiving medical assistance and he never was informed he was not free to leave. There was nothing other than the presence of Officer Jashurek to suggest appellee was in custody. Furthermore, the Commonwealth notes that merely being the focus of an investigation no longer is sufficient to mandate giving Miranda warnings. See Commonwealth v. Schoellhammer, 308 Pa.Super 360, 454 A.2d 576 (1982) {Miranda applies only where one is in custody and subjected to coercive interrogation). Consequently, the Commonwealth argues that the failure to advise appellee of his Miranda rights prior to eliciting statements from him does not warrant suppression of these statements since Miranda was not applicable as appellee was not in custody.

In Commonwealth v. Chacho, 500 Pa. 571, 577-79, 459 A.2d 311, 314 (1983) (citations omitted), the Pennsylvania Supreme Court delineated what constituted custodial interrogation:

The test for determining whether a suspect is being subjected to custodial interrogations as to necessitate Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation —
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.

Applying this authority to the instant facts, we agree with the trial court’s conclusion that a reasonable individual being questioned by Officer Jashurek while on a hospital gurney would conclude that the inquiry was custodial. See Commonwealth v. D’Nicuola, 448 Pa. 54, 292 A.2d 333 (1972) (questioning defendant while confined to a hospital room and where his freedom of action is restricted was “custody,” which coupled with the accusatory nature of the interview, compelled the conclusion that his constitutional rights were violated when he was not given the Miranda warnings before commencing the custodial interrogation); see also Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967) (custodial interrogation is not limited to the police station). Instantly, Officer Jashurek admitted on cross-examination that when he questioned appellee, it was in connection with a criminal investigation. He also admitted that he previously had gathered evidence to support such a proceeding. Moreover, the officer appeared at the hospital on his own initiative.

While the initial questions were general, we agree that the clear intent was to obtain incriminating admissions while appellee was not freely capable of leaving and was fearful of not cooperating. The statement was made after prompting and followed questions designed to obtain incriminating statements. No formal declaration of arrest is required in order for an individual to conclude that he is in custody. Commonwealth v. McGrath, 151 Pa.Commonwealth 1, 617 A.2d 400 (1992).

We find the ease cited by the Commonwealth, Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991), is distinguishable since the suspect’s statements in that case were not elicited with the intent to obtain admissions. Here, in contrast, the suppression court clearly found that Officer Jashurek sought an admission as a result of the questioning since he already had gathered information for the purpose of placing appellee under arrest. It also found that appellee was questioned while he was in custody. Factual findings of a suppression court are upheld on appeal if they are supported by the record. Commonwealth v. Toanone, supra. In this instance, we find the court’s findings are supported by the record. Accordingly, we conclude that trial court properly suppressed the statements in which appellant admitted to driving after consuming alcohol.

Next, the Commonwealth contends the court erred in suppressing the blood alcohol test results. It contends that there was sufficient, independent probable cause to arrest appellee and to seek his consent for a blood test. It notes that even though Officer Jashurek did not observe appellee driving, he observed his unsteady gait, his glassy eyes, slurred speech, and breath smelling of alcohol. An accident involving injuries had occurred and an open beer can was found near appellee’s truck. The Commonwealth contends that less evidence than this has been held sufficient to constitute probable cause and to support a request for a blood test. Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414 (1985) (officer had sufficient probable cause to request a blood test based on an accident involving serious injuries and the smell of alcohol on the suspect’s breath). Further, appellee signed a consent form to the blood test.

The trial court nevertheless suppressed the blood test since it determined that without the evidence contained in appellee’s statements, there was insufficient evidence of driving under the influence. We disagree. While we are bound by a suppression court’s factual determinations, we are not bound by its legal conclusions. Commonwealth v. Cortez, supra. Clearly, Officer Jashurek’s observations prior to appellee’s statement were sufficient to support probable cause to arrest appellee. There was an accident involving personal injuries, the odor of alcohol on appellee’s breath, and the officer’s observations of appellee’s glassy eyes and unsteady gait. Finally, Officer Jashurek recovered open beer cans and observed blood on a beer can. See Commonwealth v. Pelkey, supra (smell of alcohol following an accident constituted sufficient probable cause for arrest). Consequently, police were entitled to obtain a sample of appellee’s blood after establishing probable cause since a blood test is a reasonable search for fleeting evidence regardless of whether he consented. See Commonwealth v. Ellis, 415 Pa.Super. 220, 608 A.2d 1090 (1992); Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1986).

Order affirmed in part and reversed and remanded in part. Jurisdiction relinquished.


author: CAVANAUGH, Judge.

text:
    629 A.2d 146
    Joan PALLANTE and James Pallante, Appellants, v. HARCOURT BRACE JOVANOVICH, INC., Centipede Tours, Inc., Frank Martz Coach Company, Custom Tour and Travel, Inc., Colonial Coach Corporation, Krapf's Coaches, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued March 2, 1993.
    Filed Aug. 4, 1993.

      Daniel L. Lemisch, Philadelphia, for appellants.
    Theodore Winicov, Philadelphia, for appellees.
    Before CAVANAUGH, HUDOCK and HOFFMAN, JJ.
   CAVANAUGH, Judge.

The primary issue presented for resolution in this appeal is whether a release in favor of a vicariously liable principal acts to preclude maintenance of an action against the primarily liable agent. We hold that it does, and, therefore, summary judgment was properly entered in favor of appellee-agent.

Appellant Joan Pallante was injured on April 15, 1986 when a bus on which she was a passenger began to move and caused her to lose her balance and fall. At the time of the accident, Mrs. Pallante was attending a convention of the International Reading Association in Philadelphia. She stayed at the Wyndam-Franklin Plaza Hotel. A reception was hosted by Harcourt Brace Jovanovich, Inc. (“HBJ”) at the Franklin Institute and HBJ had provided buses to transport people from the hotel to the reception. HBJ engaged appellee-Centipede Tours, Inc. (“Centipede”) to arrange for the buses. Centipede contracted with four bus companies to have buses present at the Franklin Plaza Hotel to bring conventioneers to the reception. As Mrs. Pallante was about to take a seat on the bus, she alleges that it moved forward and braked suddenly. The abrupt stop caused her to be thrown from the seat. She went to the HBJ reception and returned to her hotel that evening using the shuttle bus service. After her injury, Mrs. Pallante sought medical treatment for pain she believed to be associated with injury sustained in the accident on the bus.

The Pallantes brought suit against HBJ, Centipede, Frank Martz Coach Company, Custom Tour and Travel, Inc., Colonial Coach Corp., and Krapfs Coaches, Inc. on July 7, 1987. Discovery was conducted and the Pallantes determined that they were unable to show the ownership of the bus on which Mrs. Pallante was injured. Therefore, summary judgment was entered in favor of Krapfs Coaches, Inc. and Frank Martz Coach Co. The parties stipulated to the dismissal with prejudice of Custom Tour & Travel and Colonial Coach Corp. At some point prior to trial, the Pallantes settled with HBJ for approximately $50,000 and released HBJ. The sole remaining defendant at the time the case was called for trial was Centipede.

Centipede filed a Motion in Limine, styled as a motion to dismiss, in which it sought dismissal and judgment in its favor. The lower court, the Honorable Bernard J. Avellino, treated this as a motion for summary judgment. After argument by counsel, the court granted the motion in favor of Centipede on the basis that the release with HBJ precluded any further action against Centipede. The court placed primary reliance upon Mamalis v. Atlas Van Lines, Inc., 522 Pa. 214, 560 A.2d 1380 (1989).

The supreme court in Mamalis held that a release between an injured party and an agent precluded an action against the agent’s principal where the principal was only vicariously liable. The supreme court held that an agent and its principal are not joint tortfeasors under the Uniform Contribution Among Tortfeasors Act (UCATA) “when the liability of the principal is vicarious liability and is not based upon the principal’s independent actionable fault.” Id. at 216, 560 A.2d at 1381. Judge Avellino applied the holding to the instant situation, i.e., release of the principal, as a logical extension of the court’s conclusion in Mamalis. It is with this conclusion that the Pallantes take issue on appeal.

The appellants present two questions for review:

1. Whether settlement with a principal acts to discharge the liability of that principal’s independently negligent agent.
2. Whether the failure of a tour company to warn bus drivers, over whom the tour company had a right of control, not to begin to operate their vehicles until all passengers are seated, can constitute negligence on the part of the tour company.

Due to the interrelated nature of the questions, we shall treat them together.

Appellants argue that the release of HBJ is of no legal significance to the validity of their action against Centipede. They contend that since Mamalis involved release of an agent, Judge Avellino’s application of the case is without basis in law. They also argue that Judge Avellino ignored Centipede’s acts of independent negligence, which would have precluded entry of summary judgment.

The supreme court has recently articulated the principles regarding entry of summary judgment:

Summary judgment shall be entered:
... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b). “The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). Summary judgment may be entered only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989).

Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992).

Initially, the Pallantes claim that the motion properly should have been treated as one for a nonsuit. We find no error committed by the trial court in applying the summary judgment standard in determining whether the case against Centipede could be maintained. The issue regarding the effect of the release was a legal one which was ripe for disposition prior to commencement of trial. The pleadings had been closed and Judge Avellino allowed the non-moving party to make an offer of proof, based upon the deposition evidence. Therefore, summary judgment was the proper procedural mechanism for determining the legal validity of appellants’ claim against Centipede.

Appellants maintain that Judge Avellino failed to afford proper weight to their offer of proof regarding the existence of Centipede’s independent negligence in resolution of the summary judgment motion. They fault Judge Avellino for failing to explain his dismissal of the independent ground of negligence against Centipede.

Upon review of the record created during argument on the motion, we find that appellants have misconstrued the basis of Judge Avellino’s ruling. Rather than ignore evidence of Centipede’s independent negligence, the trial judge assumed that Centipede was totally liable for Mrs. Pallante’s injury, for purposes of ruling on the motion.

[THE COURT]:

... Harcourt hired Centepide [sic]. Centepide [sic] was careless. Its carelessness — and this is the analysis that we follow — its carelessness caused the plaintiffs injury.
* * * * * #
As I reviewed your Complaint, it just became more and more apparent to me that your claim against Harcourt is just based upon nothing more than vicarious liability. Harcourt, as I recall — correct me if I’m wrong — they are a publishing company?

APPELLANTS’ COUNSEL:

That’s correct, your Honor.

THE COURT:

They publish books. They’re not in the business of transporting people. They publish books. In my mind, they hired Centepide [sic] to perform a specific task; namely, to transport guests of the convention from one place to another.
For all intents and purposes, we can put Centipede behind the wheel of a bus, and I think that analytically speaking, it might be easier if I did that. We can put Centipede, acting through its own employees, behind the wheel of the bus and we can have their employees being dead bang negligent. I think we can do that. The whole notion of control is that same notion. We can put them behind the wheel of the bus and the result comes out the same. You have the principal being Harcourt, the agent being Centipede and Centipede’s carelessness causing the plaintiffs injury.
Now, there is no independent act of negligence alleged against Harcourt anywhere in your Complaint. It’s all alleged the same thing. We’re blaming Harcourt — frankly, it’s had no contact with the plaintiff — for what Centipede did.

Notes of Testimony, 5/11/92, at 62, 67-69 (emphasis added).

It is clear from the comments made by Judge Avellino that he assumed that Centipede was independently negligent. Judge Avellino assumed that Centipede, HBJ’s agent, committed acts of negligence for which HBJ, as principal, could be held vicariously liable. Therefore, we find appellant’s argument in support of their second issue to be without merit.

The central legal question is whether the holding of Mamalis is applicable to the circumstance where the injured party releases the principal rather than the agent. Given the supreme court’s decision that principal and agent are not joint tortfeasors, we conclude that the release of the principal acts as a release of the agent.

The reasoning of the supreme court in Mamalis was that where one party is only vicariously liable and the other party engages in injurious conduct while acting as its agent, they are not joint tortfeasors because the claim of vicarious liability is inseparable from the claim against the agent and any cause of action is based on the acts of only one tortfeasor. Id. 522 Pa. at 221, 560 A.2d at 1383. We find that this reasoning is equally as applicable to instances of the release of the principal as it is to release of the agent. Regardless of which party is the contracting party to the release, a single tort for which compensation was sought is involved in the action. Once a person settles with the vicariously liable principal the injurious conduct in which the agent engaged has been compensated for. The independent negligent act of the agent is the subject of the settlement with the principal. When the principal receives a release from the injured party for claims based upon the act of the agent, the injured party has been compensated for the harm suffered as a result of that act. Any claim against the agent is thereby extinguished.

The supreme court in Mamalis noted its acknowledgement of the split of authority on the issue of the joint tortfeasor status of a vicariously liable principal and its agent. Id. at 221 n. 1, 560 A.2d at 1384, n. 1. The court stated that it found the better rationale to be that the release of the agent releases the vicariously liable principal. We note that there is authority from other jurisdictions which reaches a result contrary to ours today. In 1988, a plurality of the Supreme Court of Michigan reached the same result as Mamalis in Theophelis v. Lansing General Hospital, 430 Mich. 473, 424 N.W.2d 478 (1988). However, this year the Court of Appeals of Michigan ruled that release of a vicariously liable principal does not act as a release of the agent. Smith v. Childs, 198 Mich.App. 94, 100, 497 N.W.2d 538, 541 (1993). The Smith court found that since the liability of the agent is not dependent upon the agent’s relationship with the principal but is attributable to his own misconduct, the release of the principal was of no effect on the agent’s liability. The court ruled that the Michigan statute based upon UCATA abrogated the common-law rule that release of the principal discharged the liability of the agent.

Similarly, the Supreme Court of Washington has held that although release of an agent results in release of the principal, release of a principal does not require release of the agent. Vanderpool v. Grange Insurance Association, 110 Wash.2d 483, 756 P.2d 111 (1988). In a case involving an employer and employee, the court found that an injured third party’s release of the employer/principal did not automatically release the primarily liable employee/agent. The court stated that there were many situations where a plaintiff might settle with a principal,, but not intend to release the agent.

The 6-3 decision in Vanderpool was subject to a vigorous dissent. The dissent interpreted the decision in the prior case holding that release of the agent required release of the principal, Glover v. Tacoma General Hospital, 98 Wash.2d 708, 658 P.2d 1230 (1983), as follows:

In essence, the court held that the discharge of a principal is discharge of an agent if settlement from one or the other is accepted in full since there is but one tortfeasor and the law simply protects the victim by allowing the victim to proceed against one or the other or both, but not to seek recovery of more than one’s total damages.
******
The disposition is based upon the sensible rationale that acceptance of payment as payment in full from the plaintiffs selected target of either the master or the servant discharges the liability.

Vanderpool v. Grange Insurance Association, 110 Wash.2d 483, 756 P.2d 111, 118 (1988) (Callow, J. dissenting).

We are persuaded that the dissent in Vanderpool articulates the correct application of the law of releases vis-a-vis principal and agent. Because the law seeks to protect an injured party’s right to payment for a single injurious act from either a vicariously liable principal or an independently liable agent, the party’s decision to settle with and release one acts as a release of the other, given their non-joint tortfeasor status. We hold that where a principal who is vicariously liable for the negligent act of its agent is released by the injured party after settlement of the claim, the release is a release of the agent as well and no suit may be maintained against the agent for its independent act of negligence.

Judgment affirmed.

      . Centipede’s alleged independent negligence does not require it to be retained as a party although the bus companies were dismissed. As argued by appellant’s counsel below, the fact that the bus companies were sued and are no longer in the case is of no import. Notes of Testimony, 5/11/92, at 13. Regardless of Centipede’s relationship with the bus companies, it acted as HBJ’s agent at all times and it is the legal effect of that relationship which controls the analysis of Centipede’s entitlement to summary judgment.