author: CIRILLO, Judge:

text:
    645 A.2d 1366
    COMMONWEALTH of Pennsylvania, Appellant, v. Earl JACKSON.
    Superior Court of Pennsylvania.
    Submitted June 27, 1994.
    Filed Aug. 17, 1994.

      Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellant.
    Shelley Stark, Public Defender, Pittsburgh, for appellee.
    Before McEWEN, CIRILLO and CERCONE, JJ.
   CIRILLO, Judge:

The Commonwealth brings this appeal from an order entered in the Court of Common Pleas of Allegheny County granting appellee Earl Jackson’s motion in arrest of judgment on the charge of possession with intent to deliver a controlled substance. We affirm.

Following a bench trial, Jackson was convicted on one count each of possession of a controlled substance, drug, device, or cosmetic, possession of drug paraphernalia, and possession with intent to deliver a controlled substance, drug, device, or cosmetic. The following facts were adduced at trial. On August 7, 1992, at noon, while on patrol at the 2100 block of Wylie Avenue in Pittsburgh, police officers Cammarata and Strangrecki observed Jackson talking with another man. Jackson was holding a brown paper bag under his left arm and moved his right hand from his mouth to his side. The officers testified that Jackson spit into his own hand and then, upon seeing the police officers, he quickly brought his hand back up to his mouth. He then proceeded to walk away from the officers. The officers followed Jackson until he began to run. Shortly thereafter, Jackson threw away the brown paper bag in a field and was caught by the officers. The brown bag contained seven unused syringes. In Jackson’s mouth were 17 individual balloons of fentanyl weighing a total of 1.17 grams. Jackson also had a $10.00 bill in his pocket.

Following Jackson’s conviction on all charges, Jackson filed a motion in arrest of judgment/new trial, stating, among other things, that there was reasonable doubt as to whether the drugs were for delivery and not personal use. Following a hearing, the trial court granted Jackson’s motion in arrest of judgment on the conviction for possession with intent to deliver, and denied relief with respect to the remaining counts. The Commonwealth now appeals from that order. The following issue has been raised for our review:

Whether the trial court erred in granting appellee’s motion in arrest of judgment on the grounds that the evidence to support the conviction for possession with intent to deliver fentanyl was insufficient to sustain the conviction?

In evaluating a challenge to the sufficiency of the evidence, we must determine whether viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, together with all reasonable inferences therefrom, the trier of the fact could have found that each and every element of the crime charged was established beyond a reasonable doubt. Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992); Commonwealth v. Swann, 431 Pa.Super. 125, 128-29, 635 A.2d 1103, 1105 (1994). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 431 Pa.Super. 453, 458, 636 A.2d 1173, 1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1986)). Further, it matters not whether the appellant finds a witness’s testimony lacking in credibility; such matters are solely within the province of the jury [or trial judge] as trier of fact, and, as such, will not be assailed on review by this court. Swerdlow, 431 Pa.Super. at 458-59, 636 A.2d at 1176 (1994).

The offense of possession of a controlled substance with intent to deliver under 35 P.S. § 780-113(a)(30) provides, in part:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
******
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering, or possessing with intent to deliver, a counterfeit controlled substance.

35 P.S. § 780-133(a)(30) (1993).

The Commonwealth must prove both the possession of the controlled substance and the intent to deliver the controlled substance. It is well settled that all the facts and circumstances surrounding possession are relevant in making a determination of whether contraband was possessed with the intent to deliver. Commonwealth v. Ramos, 392 Pa.Super. 583, 592, 573 A.2d 1027, 1032 (1990); Commonwealth v. Fisher, 316 Pa.Super. 311, 322, 462 A.2d 1366, 1371 (1983); see also Commonwealth v. Macolino, 503 Pa. 201, 205-206, 469 A.2d 132, 134 (1983).

In Pennsylvania, the intent to deliver may be inferred from possession of a large quantity of controlled substances. Commonwealth v. Santiago, 462 Pa. 216, 223, 340 A.2d 440, 444 (1975); Commonwealth v. Smagala, 383 Pa.Super. 466, 476, 557 A.2d 347, 351 (1989); Commonwealth v. Pagan, 315 Pa.Super. 7, 8-9, 461 A.2d 321, 322 (1983); Commonwealth v. Bagley, 296 Pa.Super. 43, 46-47, 442 A.2d 287, 289 (1982). It follows that possession of a small amount of a controlled substance supports a conclusion that there is an absence of intent to deliver. Commonwealth v. Gill, 490 Pa. 1, 5, 415 A.2d 2, 4 (1980); Smagala, 383 Pa.Super. at 476, 557 A.2d at 352; Pagan, 315 Pa.Super. at 11, 461 A.2d at 323.

If, when considering only the quantity of a controlled substance, it is not clear whether the substance is being used for personal consumption or distribution, it then becomes necessary to analyze other factors. In these cases, the quantity of the controlled substance is but one factor that we look to in analyzing whether a defendant had the necessary intent to deliver a controlled substance. Pagan, 315 Pa.Super. at 10, 461 A.2d at 323; Bagley, 296 Pa.Super. at 51, 442 A.2d at 291. Other factors to consider when determining whether a defendant intended to deliver a controlled substance include the manner in which the controlled substance was packaged, the behavior of the defendant, the presence of drug paraphernalia, and large sums of cash found in possession of the defendant. Commonwealth v. Sherrell, 414 Pa.Super. 477, 482, 607 A.2d 767, 769 (1992); Ramos, 392 Pa.Super. at 594, 573 A.2d at 1034-35. The final factor to be considered is expert testimony. “Expert opinion testimony is admissible concerning whether the facts surrounding the possession of controlled substances are consistent with an intent to deliver rather than with an intent to possess it for personal use.” Commonwealth v. Ariondo, 397 Pa.Super. 364, 383, 580 A.2d 341, 350-51 (1990); Sherrell, 414 Pa.Super. at 482, 607 A.2d at 769.

Not all of these factors must be present to prove the intent to deliver a controlled substance, nor must they be given equal weight. When viewing the totality of the circumstances, however, these are the specific factors considered by this court.

The appellate courts of Pennsylvania have, on numerous occasions, found the evidence at trial insufficient to prove a defendant had the intent to deliver a controlled substance. In Gill, supra, the Pennsylvania Supreme Court found that 11 individually wrapped aluminum foil packets containing phenobarbital (like heroin) in a home, together with a syringe, a bottle cap cooker, and tips from an informant about drug sales at the residence were insufficient to prove the defendant intended to deliver the controlled substance. The Court noted that the syringe and bottle cap cooker, coupled with the quantity of drugs reflected personal use and not intent to deliver. Gill, 490 Pa. at 5, 415 A.2d at 4.

In Bagley, supra, this court found that 15.3 grams of heroin in eleven glassine bags found after the defendant, tossed the bags out the window of a moving car, was not sufficient, in and of itself, to prove intent to deliver a controlled substance.

In Commonwealth v. Asbury, 312 Pa.Super. 357, 458 A.2d 999 (1983), this court held that the evidence was insufficient to prove that the defendant intended to deliver a combination of Prazepam and Chlordiaceoxide tablets totalling 31 in number. There, two inmates were treated for drug overdoses. Besides finding 31 drug tablets, it was established that the defendant’s cellmate appeared drowsy when questioned by investigators. No expert testimony was provided, nor did this court find the quantity of controlled substances very large. This court, therefore, reversed the conviction of intent to deliver a controlled substance since the evidence presented was not sufficient to support the conviction.

In Pagan, supra, this court found that 19.9 grams of marijuana did not justify the appellant’s conviction of intent to deliver a controlled substance. This court focused on the quantity of marijuana involved and characterized it as a “small amount.” Pagan, 315 Pa.Super. at 10, 461 A.2d at 322. Also, the packaging of the marijuana, and the lack of additional drug paraphernalia failed to give any insight into the appellant’s intent to deliver the drug. This court reversed the the judgment of sentence for possession with intent to deliver a controlled substance.

Finally, in Smagala, supra, this court found the evidence insufficient to support a conviction for possession with intent to deliver a controlled substance where the evidence presented included 0.8 grams of cocaine, a rolled up twenty dollar bill, a razor blade, $834.00 in United States currency, four index cards with names and numerical values on each of them, small wire mesh screens, several hundred burned matches, a small glass pipe, and 77 small used glassine bags. An expert witness, qualified in the field of narcotics investigation, testified that the evidence was more consistent with possession of a controlled substance with the intent to deliver than with possession of a controlled substance for personal use. Id. at 473, 557 A.2d at 350. Contrary to this expert testimony, we found that the evidence did not reflect an intent to distribute but, rather, reflected personal use. This court noted that there was no marked currency like that used in a controlled buy, the quantity of drugs was not large, there were no weight scales found, and there were no informants identifying appellant as a drug dealer. The evidence presented, the rolled twenty dollar bill, the razor, and the pipe, suggested only personal use. Accordingly, this court found that the evidence was insufficient to prove beyond a reasonable doubt that the appellant possessed a controlled substance with the intent to deliver. But see Commonwealth v. Torres, 421 Pa.Super. 233, 617 A.2d 812 (1992) (this court found sufficient evidence to affirm appellee’s conviction of intent to deliver where appellee’s vehicle contained 4.63 grams of cocaine wrapped in 17 packets, boxes of sandwich bags, $236.00 in cash, and expert testimony indicating an intent to deliver).

In the instant case, the evidence was not sufficient to establish that Jackson had the requisite intent to deliver a controlled substance. Jackson possessed 17 balloons of fentanyl weighing a total of 1.17 grams. This established the first element of the charge of intent to deliver a controlled substance — possession of a controlled substance. However, the Commonwealth failed to establish the second element, the intent to deliver the controlled substance. The Commonwealth’s expert testified that he knew of an addict who used 30 balloons daily. Here, the 17 balloons possessed by Jackson falls well within the amount possible for personal daily consumption. Jackson testified that he consumed about six balloons daily. Seventeen balloons, therefore, might very well represent a few days worth of drugs for his personal consumption. Jackson had a ten dollar bill in his possession at the time of his arrest. This is not a large sum, relatively speaking; such evidence does not contribute to the finding of an intent to distribute. Further, Jackson had seven syringes in a brown bag. These syringes were unused and represent personal use paraphernalia. The evidence did not establish that Jackson was dealing drugs: rather, the testimony presented at trial indicated that Jackson was a drug user. Further, the police officers did not observe Jackson in any type of drug transaction. The police officers could not see anything in Jackson’s hand while they observed him, nor did they see anything pass between Jackson and the man to whom he was speaking. The instant case is clearly more analogous to the cases discussed above, where the quantum of proof required to sustain a conviction for the charge of intent to deliver a controlled substance was lacking.

We conclude that the trial court did not err when it granted the motion of appellee in arrest of judgment on the charge of possession with intent to deliver a controlled substance. The evidence presented at trial was not sufficient to determine beyond a reasonable doubt that the appellee, Earl Jackson, had the requisite intent to deliver fentanyl. Jarman, supra.

Order affirmed.

      . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-113(a)(6).

      . 35 P.S. § 780-113(a)(32).

      . Fentanyl is a drug similar to heroin.


source: Caselaw Access Project

author: WIEAND, Judge.

license: Public Domain

text:
    646 A.2d 573
    John J. BEDNAR, Appellant, v. John E. MARINO, Executor of the Estate of John P. Marino, Deceased (at 1592). John J. BEDNAR, Appellant, v. HEIGHTS PLAZA MATERIALS, INC. and John P. Marino (at 1593).
    Superior Court of Pennsylvania.
    Argued March 15, 1994.
    Filed Aug. 15, 1994.

      Errol S. Miller. Pittsburgh, for appellant.
    Harold Gondelman. Pittsburgh, for appellees.
    Before WIEAND, DEL SOLE and FORD ELLIOTT, JJ.
   WIEAND, Judge.

The history of this litigation is long and tortured. In March, 1977, John Bednar, trading and doing business as Natrona Slag Company, leased real estate from John P. Marino and Alex Marino for the purpose of operating a slag recycling plant thereon. Pursuant to the terms of the parties’ lease agreement, Bednar was to use the demised premises to mine, remove and sell the ferrous materials, scrap metals and aggregate already in, under and upon the leased property, as well as any materials brought onto the premises by Bednar for subsequent processing. Plaintiffs rent was to be determined according to an agreed percentage of the gross income generated from sales of the various processed materials. The term of the lease was for four years, beginning January, 1977; and the agreement gave Bednar an option to renew for another four year period. The agreement provided, in pertinent part, as follows:

After the last day of the term hereof or upon any earlier termination of the term, Bednar shall surrender and yield to Marino the demised premises in good order and condition; provided however, that if termination is by mutual consent, or by expiration of the four (4) year term or any renewal hereof Bednar shall have a period of three (3) months following the last day of the term hereof to remove all fixtures, including equipment, machinery and plant (hereby classified as fixtures) of any kind used by him in his operations from the premises and to sell any materials still held in stock subject to the terms of this Lease including rents; provided however, that no operations of any kind other than removal of said fixtures or sales from stock shall be conducted by Bednar during such nine month period.

In 1978, the lease was amended to extend the term thereof to December 31, 1984.

By letter dated May 7, 1984, Bednar informed John P. Marino that he would not exercise his option to renew the lease. In May, 1985, when Bednar still had not removed his plant, equipment and materials from the premises, as required by the terms of the lease, John P. Marino commenced an action in ejectment against Bednar. In October, 1985, Mari-no commenced a second action against Bednar which sought to enjoin Bednar from resuming any operations on the premises. On February 14, 1986, a preliminary injunction was granted which enjoined Bednar from resuming operations on the premises or from interfering with the property or those lawfully thereon. On June 2, 1986, Bednar was found in contempt of the preliminary injunction and sentenced and committed to jail for a period of thirty days. The ejectment and equity, actions were then consolidated by the court; and, on July 18, 1986, the trial court reaffirmed its preliminary injunction and found that the lease under which Bednar had occupied the Marino premises had expired on September 30, 1985. Specifically, the trial court found that the three month period provided for in the lease for removal of the lessee’s property and for sale of stockpiled goods had been extended for an additional six months by agreement of the parties. Accordingly, the trial court determined that Heights Plaza, the successor to the Marino interests, was entitled to sole and exclusive possession of the subject premises from and after October 1, 1985, and that Bednar had thirty days in which to remove his plant, fixtures and equipment. Bednar again failed to comply with the court’s order. On October 8, 1986, therefore, the trial court entered several orders which, inter alia, (1) held Bednar in contempt for failing to dismantle and remove his plant and equipment; (2) directed the sheriff to employ a company to dismantle the plant, and also remove the machinery and fixtures, and conduct a public sale thereof; and (3) directed the sheriff to bill Heights Plaza for the cost of dismantling and removing the plant and equipment and thereafter to pay the proceeds of the public sale to Heights Plaza with the’ shortfall taxed to Bednar as costs.

Bednar commenced an action against Heights Plaza on June 5, 1992, and an additional action against the estate of John P. Marino on January 6, 1993, to recover damages for the landlord’s alleged interference with his attempt to obtain financing from a bank and also to recover a share of the proceeds resulting from defendants’ alleged sale of inventory which had remained on Heights Plaza’s premises after the lease had terminated. According to the averments of the complaint, at some point in time prior to December 31, 1984, plaintiff attempted to purchase the property adjacent to the leased premises. The property was owned by Burrell Construction Company and Bednar had been storing some of his inventory and by-products thereon with the owner’s permission. Bednar averred he was interested in purchasing the property so that he could relocate and continue his operations when his lease expired in December, 1984. Bednar sought financing from a certain bank in order to purchase the Burrell property, but the requested financing was denied because Marino had allegedly informed the bank that Bednar was a poor credit risk. Thereafter, according to the complaint, Marino purchased the Burrell property himself. Despite Marino’s purchase of the property, Bednar continued to store his inventory and by-products thereon.

The complaint also avers that at the time the lease was terminated in December, 1984, Bednar had leveled off, scraped and stored four hundred thirty-seven thousand (437,-000) tons of aggregate which still required aging, sizing and processing prior to its sale. Following the termination of the lease, Bednar contends, he was not permitted to sell any of the aggregate after it had aged, nor was he paid for the work he had done on the product during the term of the lease. Bednar also contends that as of December 31, 1984, he had stored on the adjacent property twenty five hundred (2,500) tons of “B” pitscrap, over forty (40) tons of stainless steel, over forty (40) tons of “No. 1” steel, and over two thousand (2000) tons of regular pitscrap. According to the complaint, after the lease was terminated, Marino seized the inventory which had been stockpiled on the adjacent property and transferred it to Heights Plaza without his permission. Thereafter, beginning on November 4, 1986, Heights Plaza sold the inventory without providing plaintiff with an accounting of such sales and without paying to plaintiff any portion of the proceeds.

When Bednar commenced the present actions in 1992 and 1993, he sought to recover (1) damages for Marino’s alleged interference with his attempt to obtain financing from the bank; (2) a share of the proceeds from the sale of the inventory left on the adjacent property; (3) a share of the proceeds from the sale of aggregate that plaintiff had prepared for final aging, or alternatively; (4) the quantum meruit value of his services in preparing the aggregate for sale; and (5) punitive damages. The defendants filed answers containing new matter in which they asserted, inter alia, that Bednar’s claims were barred by the applicable statutes of limitations. Thereafter, the defendants filed motions for summary judgment. The trial court applied the four year statute of limitations applicable to actions on contract, 42 Pa.C.S. § 5525(8), and held that all claims based on the lease agreement, including the claim for quantum meruit, were barred after September 30, 1989, or four years after the expiration of the lease. The trial court also determined that the six year statute of limitations appearing at 42 Pa.C.S. § 5527 controlled the action for interference with a potential contract. Therefore, the trial court held that Bednar’s actions were time barred and entered summary judgments in favor of the defendants. Although we disagree with the statutory periods applied by the trial court, we agree that Bednar’s actions were time barred.

A motion for summary judgment may be granted only 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.” Marks v. Tasman, M.D., 527 Pa. 132, 134, 589 A.2d 205, 206 (1991), quoting Pa.R.C.P. 1035(b). In determining whether summary judgment has been properly granted, a reviewing court must examine the record in the light most favorable to the nonmoving party and resolve all doubts against the moving party. E.J.M. v. Archdiocese of Philadelphia, 424 Pa.Super. 449, 453, 622 A.2d 1388, 1390 (1993). Summary judgment is proper only in cases where the right is clear and free from doubt. Marks v. Tasman, M.D., supra, 527 Pa. at 134-135, 589 A.2d at 206. Summary judgment may properly be entered in favor of a defendant where the plaintiffs cause of action is barred by the statute of limitations. Bradley v. Ragheb, M.D., 429 Pa.Super. 616, 620, 633 A.2d 192, 194 (1993); A.McD. v. Rosen, M.D., 423 Pa.Super. 304, 307, 621 A.2d 128, 130 (1993).

The statute of limitations applicable to a claim for tortious interference with a potential contract is found at 42 Pa.C.S. § 5524(3), which provides that “[a]n action for taking, detaining or injuring personal property ...” must be commenced within two years. See: Bender v. McIlhatten, 360 Pa.Super. 168, 173, 520 A.2d 37, 38-39, allocatur denied, 515 Pa. 571, 527 A.2d 533 (1987). In general, the statutory period begins to run when the cause of action accrues, or “as soon as the right to institute and maintain a suit arises.... ” Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). Once the prescribed period of limitations has run, a party is thereafter barred from bringing an action for such damages. Id. See also: Bradley v. Ragheb, M.D., supra, 429 Pa.Super. at 620, 633 A.2d at 194. In this case, any cause of action appellant might have had for Marino’s alleged interference with his ability to obtain financing from the bank in 1984 accrued at the point in time in 1984 when the alleged interference occurred. The time within which appellant had to commence an action expired two years later, more than five years before appellant commenced the instant actions. Thus, appellant’s cause of action for tortious interference with a prospective contract was barred by the running of the statutory period, and summary judgment was properly entered in favor of appellees with respect thereto.

It is clear that appellant’s actions to recover the proceeds from appellees’ alleged sale of his inventory or stockpiles of materials were also barred by the running of the statute of limitations. With respect to these causes of action, the trial court determined that either the four year statute of limitations applicable to contract actions, 42 Pa.C.S. § 5525, or the six year period of limitations applicable to an action for an accounting, 42 Pa.C.S. § 5527, was applicable. Again we disagree. Appellant’s actions for the allegedly wrongful sale of his materials or inventory are more properly characterized as actions in tort, or more specifically, actions for the conversion of his personal property.

As a general rule, a tenant does not forfeit or lose title to his personal property by neglecting to remove it from the leased premises after the termination of the lease. This is so even if the tenant fails to remove his personalty within a reasonable time after the expiration of the lease. 49 Am. Jur.2d, Landlord and Tenant, § 1014. Any retention, use or disposal of the tenant’s property by the landlord, or any other exercise of dominion over it to the exclusion of the rights of the tenant, constitutes a conversion of the tenant’s property by the landlord. Id. Here, appellant maintains that appellees sold his goods without his permission. Such action amounts to a disposition of appellant’s property by appellees or an “exercise of dominion over it to the exclusion of the rights of [appellant].” Id. Conversion actions are subject to the two year period of limitation set forth at 42 Pa.C.S. § 5524(3), supra. Accord: William B. Tenny, Builder and Developer v. Dauphin Deposit Bank & Trust Co., 302 Pa.Super. 342, 349, 448 A.2d 1073, 1076 (1982). Thus, any action which appellant may have had to recover the value of his materials or inventory expired two years after they were converted. This is so whether the conversion occurred in 1986 or, as appellant argues, in 1989.

Finally, appellant’s delay in commencing the present action has also precluded any recovery he might otherwise have had on a theory of quantum meruit.

The equitable doctrine of quantum meruit involves a class of obligations imposed by law, regardless of the intention or assent of the parties for reasons dictated by justice and is based on the concept that no one who benefits by the labor and materials of another should be unjustly enriched thereby. To avoid such unjust enrichment, the law implies a promise to pay a reasonable amount for the labor and materials furnished, even absent a specific contract therefor. In short, this doctrine describes the extent of liability on a contract implied-in-law for labor and materials and, while there is no contract per se, the form of action is contract.

Department of Environmental Resources v. Winn, 142 Pa. Commw. 375, 381 n. 3, 597 A.2d 281, 284 n. 3 (1991), allocatur denied, 529 Pa. 654, 602 A.2d 863 (1992) (emphasis in original deleted, emphasis added). Accord: Ragnar Benson, Inc. v. Bethel Mart Assoc., 308 Pa.Super. 405, 414, 454 A.2d 599, 603 (1982). The four year period of limitations applicable to contracts implied-in-law governs an action based upon a theory of quantum meruit. See: 42 Pa.C.S. § 5525(4); Ragnar Benson, Inc. v. Bethel Mart Assoc., supra. In the present case, appellant contends that he was not permitted to sell any of the aggregate which he had cleaned, levelled, stored and processed once the parties’ agreement had terminated. Therefore, the statutory period began to run, at the latest, on October 1, 1985, when appellant was precluded from selling the aggregate. After October 1,1989, any claim for the value of his material and services was barred. Therefore, the summary judgment which was entered in favor of appellees on appellant’s claim for the value of his materials and services was proper.

For the foregoing reasons, we conclude that appellant’s actions were untimely and in violation of the applicable statutes of limitations. The orders entering summary judgments in favor of appellees, Heights Plaza Materials, Inc. and John E. Marino, Executor of the Estate of John P. Marino, are, therefore,

Affirmed.

      . This action was commenced by Marino on his own behalf and as managing partner of a partnership consisting of Lucy Marino, John D. Marino and successors to the interests of Alex Marino.

      . The trial court, in finding Bednar in contempt of its order, also provided that Bednar could purge himself of such contempt and avoid the sanction of incarceration if he would commit and promise in open court that he would "cease and desist from performing any and all conduct in violation of the Court’s Order, including resuming slag processing operations or resuming slag processing operations under premises of the Plaintiffs in this case, and from interfering with the property of the Plaintiff or those lawfully upon the premises acting pursuant to the authority [of] the Plaintiff____” Bednar did not avail himself of this option.

      . The Marinos' interests in the leased premises had been conveyed to Heights Plaza Materials, Incorporated, which was subsequently substituted as the plaintiff in the ejectment and equity actions.

      . In a memorandum opinion, the Superior Court affirmed the trial court’s orders which (1) entered a verdict in favor of Heights Plaza in the ejectment action; and (2) enjoined Bednar from engaging in business on Heights Plaza’s premises or interfering with its property. Heights Plaza Materials, Inc. v. Bednar, 382 Pa.Super. 651, 549 A.2d 1345 (1988), allocatur denied, 521 Pa. 612, 557 A.2d 344 (1989). In a second memorandum opinion, the Superior Court affirmed the trial court's order directing the sheriff to pay the proceeds from the auction of Bednar’s equipment and fixtures to Heights Plaza. Heights Plaza Materials, Inc. v. Bednar, 403 Pa.Super. 641, 579 A.2d 422 (1990), allocatur denied, 526 Pa. 635, 584 A.2d 318 (1990).

      . The actions, which are virtually identical to each other, were consolidated for purposes of the instant appeal.

      . According to the complaint, it is necessary to age the aggregate for a period of two years before it can be sold.


author: TAMILIA, Judge:

text:
    646 A.2d 578
    Susan Castriota HOAG, v. Richard D. HOAG, Appellant. Susan Castriota HOAG, Appellant, v. Richard D. HOAG. Susan Castriota HOAG, v. Richard D. HOAG, Appellant.
    Superior Court of Pennsylvania.
    Argued May 10, 1994.
    Filed Aug. 18, 1994.

      David S. Pollock, Pittsburgh, for Susan C. Hoag.
    James Mahood, Pittsburgh, for Richard D. Hoag.
    Before TAMILIA, HUDOCK and MONTGOMERY, JJ.
   TAMILIA, Judge:

Husband and wife have filed cross-appeals from the Order entered February 24, 1993 which granted wife’s claim for spousal and child support. The relevant facts and procedural history are set forth by the trial court as follows:

On February 16,1992, the parties to this action separated after approximately eleven years of marriage. Thereafter, on March 3, 1992, Susan Castriota Hoag, Wife, filed a complaint against Richard D. Hoag, Husband, for support of herself and their two minor children. The. case was designated complex, and an initial hearing was held on April 14, 1992. The hearing officer made a recommendation for interim support in the amount of $2,100 per month, and Husband’s subsequently filed exceptions were quashed on May 14, 1992.
A second hearing was held on August 14, 1992, resulting in a recommendation for spousal and child support in the amount of $1,030 per month. Both parties filed timely exceptions, which were argued before this court. The resulting order dated February 24, 1993, provides in relevant part that Husband is to pay $1,346 per month for the support of wife and two children, retroactive to March 2, 1992. Additionally, the amount is reduced by $300 per month until July 29, 1994, for the purpose of effectuating recovery by the Husband of overpayments and direct payments in the total amount of $5,292.38 made from March 2, 1992 until August 14, 1992.

(Slip Op., Mazur, J., 6/22/93, pp. 1-2.)

Both husband and wife appealed from this Order (Nos. 00470 and 00508 Pittsburgh, 1993, respectively) raising numerous allegations of trial court error, which were condensed to four basic issues by the trial court in its February 24, 1993 Opinion.

Initially we note that our scope of review from an Order awarding support is very narrow. We can reverse a support Order only if we find that the Order cannot be sustained on any valid ground. The decision of the trial court will not be reversed absent an abuse of discretion or an error of law.

McAuliffe v. McAuliffe, 418 Pa.Super. 39, 42, 613 A.2d 20, 22 (1992) (citations omitted).

Both parties contend the trial court erred in calculating the amount of money husband has available for support income. The trial court determined husband’s income to be $4,352 per month based upon the figures reported in his 1991 federal tax return. Specifically, a portion of husband’s income is generated through his employment as a salesman for a family-owned business operated by his parents. The remainder of his income is through four irrevocable trusts created by his father with the corpus being percentage shares of two family-owned “S” corporations. The “taxable income” of the trust consists of corporate income passed through the trust to husband.

Husband contends this income is never actually received by him, but instead, is intended to be reimbursement of the tax liability generated by reporting this income on his tax return, thus creating a “wash” or zero gain. Therefore, this “taxable income,” although documented on his tax returns, is never actually received and, thus, cannot be attributed to income for calculation of his support obligation. In essence, husband claims the earnings attributed to him as a beneficiary of the trust are “paper income” and significant only for tax purposes. Moreover, he has no control over the amount and timing of the distributions. Accordingly, husband contends the court abused its discretion by failing to “look behind” the reported income on his federal tax return to determine his actual income and cash flow.

After a thorough review of the record, we find the trial court did not err in its determination that husband’s income from the trusts should be included in his net monthly income. Husband’s actual financial condition is determinative. The trial court, in calculating a support award, must consider every aspect of a party’s financial ability to pay, including property interests, stocks and other forms of investment. Blaisure v. Blaisure, 395 Pa.Super. 473, 577 A.2d 640 (1990). When actual net earnings do not reflect earning capacity, the trial court should investigate a variety of sources to determine the party’s true wealth. Heisey v. Heisey, 430 Pa.Super. 16, 633 A.2d 211 (1993). The court should pierce the corporate veil to determine if a spouse’s ability to pay support is enhanced by advantages relating to owning or being a member of a corporation. Id. Presently, the court determined husband’s trusts are mere conduits for the “S” corporations’ income, passing through to the individual beneficiary. Simply because the corporation retained the amount of income attributable to husband does not exclude consideration of this amount in the determination of his support obligations. Husband argues that he had no discretion to manipulate the income, which discretion presumedly was left to his father and/or other directors. However, husband provides no evidence that the attributed earnings reported on his income tax return were not readily available to him. Accordingly, we find the trial court correctly included the amount in its calculation of support. See King v. King, 390 Pa.Super. 226, 568 A.2d 627 (1989).

Wife contends husband’s ability to withdraw the principal from the trust should be attributed to his income. The evidence, however, reveals the principal of the irrevocable trust to be shares of non-transferable stock in a closely held corporation which will produce the same amount of income regardless if it is withdrawn from the trust. Therefore, wife’s argument is without merit as the withdrawal of the principal is immaterial to his production of income.

Next, the parties dispute the trial court’s determination of wife’s net income. Wife claims the court’s calculation of her net income is inadequate, whereas husband claims the court again failed to “look behind” what she reported on her tax return to determine her actual cash flow.

The trial court determined wife’s net income from her sole proprietorship to be $1,932 per month, which was based on the gross income reported on her 1991 Federal profit and loss statement, less various deductions. Included in this calculation was $400 per month which wife testified was part of her unreported income. Wife contends this figure should be $1,535.17 per month based on her independent calculations. However, she fails to point out to this Court where the trial court erred or how it abused its discretion. We will not examine bald assertions without sufficient proof of abuse of discretion or error of law. On the other hand, husband claims wife’s actual net income, based on actual cash flow, should be $2,057 per month rather than $1,932 per month. According to the record, however, the court documents its consideration of wife’s gross income less deductions for business expenses and individual tax liabilities and interest. (Slip Op. at 4.) Moreover, the court considered the unreported income of $400 per month. Id. Accordingly, we find the court properly considered wife’s financial resources and earning capacity. Blaisure, supra.

Wife further contends the amount of support awarded for herself and the parties’ children is insufficient to provide for their reasonable needs. Although she claims the court erroneously remained within the parameters of the support guidelines and failed to consider the additional needs and obligations of the parties, pursuant to Pa.R.C.P. § 1910.16, wife fails to prove the court ignored these factors. Mere allegations that the award is inadequate are insufficient for this Court to find an abuse of discretion or error of law. The court, in its Opinion, documents that it followed the support guidelines pursuant to section 1910.16. Accordingly, we fail to find an abuse of discretion.

Finally, husband contends the trial court abused its discretion in choosing not to follow the recommendation of the hearing officer, however, he fails to adequately address this issue in his brief. Moreover, the comments to Pa.R.C.P. § 1910.11 state “[a]fter careful consideration, the court ... for a reason which satisfies the court, may enter an order which deviates from the recommendation.” Accordingly, husband’s claim of abuse of discretion is unfounded.

As previously noted, two life insurance policies owned by husband are also at issue. On April 21, 1992, one week after the interim support hearing, wife filed a motion for special relief pursuant to Pa.R.C.P. 1910.25 averring husband had informed her of his intention to change the beneficiary designations on the two policies he owned insuring his life and naming wife and children as beneficiaries. Wife sought to enjoin husband from changing the beneficiary designations or allowing them to lapse, pending further Order of court. The trial court determined Rule 1910.25 grants broad equitable powers to provide interim or special relief and granted the petition entering the injunction pursuant to the rule which states:

At any time after the filing of the complaint, the court may on application issue a preliminary or special injunction, appoint a temporary receiver, order the seizure of property, dispose of seized property or grant other appropriate interim or special relief.

Adopted April 23, 1981, effective July 22, 1981.

Explanatory Comment — 1981

Sections 1 and 2 of the Act 1907, 48 P.S. §§ 131, 132, authorize the bringing of an action at law or in equity to enforce the duty of support. These sections are suspended by these Rules insofar as they provide practice and procedure for an action of support.
However, equitable remedies may still be useful in a case which warrants them. Illustrations are the enjoining of a resident trustee from disbursing funds to a defendant beneficiary outside the Commonwealth or to an improvident defendant or obtaining satisfaction from a spend-thrift trust. The Rules contain a broad provision empowering the court to provide special relief where appropriate.

The court found husband acquired the policies to protect wife and children, and to permit husband to change the policies or allow them to lapse would place wife and children, in the event of an untimely death, without support and potentially impoverished. Moreover, the trial court determined the relief granted posed no substantial hardship to father but merely maintained the status quo.

Following denial of his exceptions to the Order, husband appealed to this Court which quashed the appeal as interlocutory. Hoag v. Hoag, 431 Pa.Super. 627, 631 A.2d 221 (1993) (unpublished memorandum). On May 6, 1993, husband, subsequent to the entry of the final support Order, filed a petition for reconsideration" which was denied by this Court on June 24, 1993. Husband now contends the issue is ripe for review and claims the trial court had no authority whatsoever over a party’s life insurance during the pendency of a support action when no divorce was pending. Specifically, Rule 1910.25 was promulgated to provide a reasonable method to enforce the duty of support and to maintain the availability of income producing or attachable assets to assure the continued payment of spousal and child support. He argues special relief in a support action should only.be utilized to enforce a support obligation.

Before addressing the merits of husband’s argument, however, we must first examine the procedural history to determine if the issue is properly before this Court. According to the record, the Order for special relief was entered April 21, 1992, subsequent to wife’s March 3, 1992 complaint for support. Husband then appealed the Order to this Court in a timely manner, and arguments were heard on January 26, 1993. This Court quashed the appeal as interlocutory on April 29, 1993, however, while the appeal was pending, the second support hearing occurred on August 14, 1992 following which the trial court heard exceptions on December 14, 1992.

As .evidenced by this chronological summary, the Order for special relief was on appeal to this Court during the entire support proceedings. Thus, the trial court no longer had jurisdiction and could not proceed further in the matter. Pa.R.A.P. 1701(a). See Sutliff v. Sutliff, 515 Pa. 393, 528 A.2d 1318 (1987). Moreover, since the appeal was found to be interlocutory only after the appeal from the support Order had been filed, husband’s brief was the first opportunity he had to raise the issue. Accordingly, this Court will address the merits of husband’s argument; appellee’s motion to quash appeal as to the life insurance issue is denied.

A review of Rule 1910.25, together with its explanatory comment, finds the rule grants broad equitable powers to provide interim or temporary relief where appropriate within the context of a support action. The parties had separated shortly prior to the filing of wife’s complaint for support. Wife averred, and husband did not dispute, that he specifically acquired the policies to protect wife and children. The trial court, therefore, granted the injunction to simply preserve the status quo of the marital property pending further proceedings. Accordingly, we find this interim relief granted by the trial court to have been within its equitable powers and not an abuse of discretion.

The Order for special relief was part of the support proceedings but was not specifically addressed during the proceedings or in the final support Order. Accordingly, this Court must conduct an independent analysis to determine the duration of the Order for special relief. As previously noted, Rule 1910.25 utilizes the terms “interim” and “preliminary” implying provisional relief until further resolution. General words and phrases should be construed according to their common and approved usage. Pa.R.C.P. § 103. According to Webster’s Ninth New Collegiate Dictionary, “interim” is defined as an intervening time and “preliminary” is something that precedes or is introductory or preparatory. As such, the equitable powers granted by this rule should be utilized for temporary relief. Moreover, the Order in question utilizes the language “pending further order of court.” (Order of Court, Baer, J., 4/21/92.) Judge Baer addressed the purpose of this Order in his Rule 1925 Opinion: “The sole purpose of the Order from which Father appeals was to protect Mother and Children on an interim basis, pending further proceedings.” (Slip Op., Baer, J., 7/31/92, p. 5.) The Opinion continued by stating the Order was, in and of itself, not final and, if it remained in effect, would form a portion of the final support Order. Id. (As noted above, however, Judge Mazur was unable to incorporate specifically any provision of the injunction into the final support Order as the Order granting the injunction was on appeal.)

Consequently, we find the Order for special relief ceased upon entry of the final support Order. Husband was only required to maintain the life insurance policies from the date of the Order for special relief (April 21, 1992) until the final support Order (February 24, 1993). Since neither party raised the continuance of the life insurance policies beyond the date of the final Order, we find it unnecessary to address the issue. In any case it would require specific agreement by the parties or unusual circumstances relating to the health or status of the husband to require him to maintain an insurance policy naming the wife as beneficiary, as support for wife terminates upon divorce or death of either party or, as in this case, is determined by a final support Order. Since father, through counsel, has requested this Court to vacate the Order of April 21, 1992, thereby permitting him to make his daughters one hundred per cent (100%) beneficiaries of his life insurance policies, instead of wife and daughters (father’s brief at 49; reply brief at 15), we direct him to do so.

Order of February 24,1993, as amended by Order of July 1, 1993, is affirmed.

Order of April 21, 1992, as discussed in this Opinion, terminated as of February 24, 1994, the date of the final support Order. Father is directed to reinstate the life insurance policies naming his daughters as sole beneficiaries.

Jurisdiction relinquished.

MONTGOMERY, J., concurs in the result.

      . In a related matter, which will be addressed by the court infra, husband contests the validity of a separate court Order for special relief relating to two insurance policies.

      . Following the filing of the appeals, the trial court, pursuant to Pa.R.A.P. § 1701(b)(1), entered an amended Order dated July 1, 1993, stating that husband shall pay $1,349 per month to be reduced by $300 per month until July 14, 1994, and then reduced by $129.38 until August 14, 1994, when the $1,346 per month obligation will resume. While the amended Order was entered during the pendency of these appeals, we treat the amended Order to be the trial court’s attempt to clarify and correct the Order of February 24, 1993 and not as a substantive modification. As such, it conforms with Rule 1701(b)(1).


author:
OLSZEWSKI, Judge.
      DEL SOLE, Judge,

text:
    646 A.2d 585
    COMMONWEALTH of Pennsylvania v. Juan GUERRERO, Appellant.
    Superior Court of Pennsylvania.
    Argued May 11, 1994.
    Filed August 19, 1994.

      William P. Wismer, Asst. Public Defender, Allentown, for appellant.

      Theodore R. Racines, Asst. Dist. Atty., Allentown, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   OLSZEWSKI, Judge.

Juan Guerrero appeals the judgment sentencing him to three-to-six years imprisonment for possession and possession with intent to deliver heroin. Guerrero brings only one challenge: he contends that the heroin found in his camera bag should have been suppressed since he had not consented to the police search which revealed it. We agree, and order a new trial.

In reviewing an order from' a suppression court, we consider the Commonwealth’s evidence, and only so much of defendant’s evidence as remains uncontradicted. We accept the suppression court’s factual findings that are supported by this evidence, and may only reverse if the court draws erroneous legal conclusions from them. Commonwealth v. Hendrix, 426 Pa.Super. 616, 627 A.2d 1224 (1993). Here, we accept all of the suppression court’s factual findings, but disagree with its legal conclusion that Guerrero consented to the search of a brown paper bag inside of his camera bag.

Guerrero’s search and arrest were part of an Allentown drug investigation in May of 1990. Investigating an anonymous tip, Allentown police followed two suspected drug dealers to the Allentown bus terminal. The police had reason to suspect that a bus due to arrive from Manhattan might have a drug courier on board. Guerrero was one of the five people disembarking from the Manhattan bus.

Sgt. Hendricks approached [Guerrero], identified himself as a police officer and showed [Guerrero] his badge. Sgt. Hendricks began to talk with [Guerrero], and it soon became apparent that [Guerrero] had little comprehension of English. Through gestures, Sgt. Hendricks conveyed to [Guerrero] that he wished to see the inside of [Guerrero’s] camera bag.

[Guerrero] did in fact open up the camera bag for Sgt. Hendricks. First, [Guerrero] showed Sgt. Hendricks the side pockets which were empty. Next, [Guerrero] opened the top flap. The bag had three (3) compartments inside. ... [Guerrero] began taking items out of the bag one by one and displaying them to Sgt. Hendricks. There were baseball cards, a camera lens, etc. [Guerrero] took everything out except a brown paper bag the size of a lunch bag. He left his camera bag open but did not pull out this last item. Sgt. Hendricks reached into the open camera bag and opened the brown bag, which contained 400 individual packets of heroin, weighing a total of twelve grams.

Suppression court opinion, 3/22/91 at 3-4. From these factual findings, which are basically a summary of Sergeant Hendricks’ testimony at the suppression hearing, the court drew the following conclusion of law:

The law is not complicated in this area of warrantless searches. The search is valid if the person who is in control of the item consents to the search. Commonwealth v. Elliot, 376 Pa.Super. 536, 546 A.2d 654 (1988). The scope of that consent turns on the mind of the person consenting and not of the officer. Commonwealth v. Poteete, 274 Pa.Super. 490, 498, 418 A.2d 513, 517 (1980). The facts of the instant case are interesting, but again, uncomplicated. Surely [Guerrero’s] mind must have been apprehensive as he voluntarily emptied out the camera bag, item by item, until the last brown bag full of heroin. He hesitated, possibly not knowing what to do. He had affirmatively given his consent up to that point. He did nothing, however, to revoke his consent. He stood at the telephone booth shelf with the bag wide open, making no protest when the officer reached in. He gave no physical or verbal indication that he was revoking his consent at any time.
Furthermore, the nature of what was removed is important. It appeared to be an ordinary brown lunch bag. It was not locked or sealed in any way. The consent to examine the contents of the camera bag necessarily included the consent to examine the nature and content of whatever was found in a normal and unintrusive manner.

Suppression court opinion, 3/22/91 at 4-5. The trial court affirmed the suppression court by adopting this reasoning and opinion at post-trial motions. Trial court opinion, 9/22/93 at 3.

We disagree with the lower court’s legal conclusion, because it ignores the carefully delineated way in which Guerrero permitted Sergeant Hendricks to inspect his bag. There was no verbal grant of consent to search; no license given for the officer to reach into the bag. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (voluntary, if uninformed, verbal grant of consent to search car was a valid waiver of Fourth Amendment rights). Guerrero, however, did not relinquish control of the bag or its contents to Sergeant Hendricks at any time, or even to the slightest degree. Rather, Guerrero allowed the officer to look as he opened the empty side pockets, and then displayed the contents of the main pouch item by item. If any consent to search can be presumed from these actions, the scope of this consent is completely delineated by this specific and carefully controlled course of conduct.

A person’s right to delimit the scope of consent to a search is well established. Florida v. Jimeno, 500 U.S. 248, 251-52, 111 S.Ct. 1801, 1804, 114 L.Ed.2d 297, 303 (1991). If Guerrero had spoken English, he could have explicitly given Sergeant Hendricks permission to look at the camera bag and its contents, except for the brown paper bag inside. This is precisely what Guerrero did through his non-verbal course of conduct. Hence, we cannot accept the lower court’s assertion that any consent to examine the camera bag “necessarily included the consent to examine the nature and content of whatever was found in a normal and unintrusive manner.”

Moreover, the suppression court improperly characterized Sergeant Hendricks’ act of reaching into the camera bag to open the brown paper bag as “normal and unintrusive.” Given the non-verbal manner in which this “search” was proceeding, it was normal for Guerrero to pull an item out of the bag and show it to Sergeant Hendricks; Hendricks’ reaching into the camera bag was not a normal part of this established course of conduct. Likewise, when we consider the complete control over the bag and its contents which Guerrero deliberately maintained, Sergeant Hendricks’ act of reaching in was profoundly intrusive.

Our Supreme Court has recently stressed that it is never incumbent upon a search target to affirmatively resist or repel a police officer’s unwarranted intrusion into a constitutionally protected area. Rather, “in order for consent to an otherwise illegal search to be valid, the consent must be unequivocal, specific, and voluntary.” Commonwealth v. Gibson, 536 Pa. 123, 132, 638 A.2d 203, 207 (1994) (citation omitted). In Gibson, a police officer “maneuvered” himself into an apartment to investigate possible underage drinking inside. The officer had no warrant, nor probable cause to search which could permit an exigent entrance. Our Supreme Court described the non-consensual entrance in terms similar to Sergeant Hendricks’ encounter with Guerrero:

The owner did not give his express consent that the police could enter. Nor did he refuse to let the police in. Instead, he testified that the police chief maneuvered him into the foyer of the apartment, and fellow officers followed him into the apartment. [The apartment owner] testified: “I did not give permission. I was not asked. I didn’t say you cannot come in, or stop; but I didn’t say yes, come on in.”

Id.

Viewing the record in the light most favorable to the Commonwealth, and precisely as characterized by the suppression court, we must conclude that any manifestation of consent to Sergeant Hendricks’ sudden reach into the bag was similarly absent. The suppression court erred in extrapolating some kind of general consent to search the entire bag from Guerrero’s narrow course of conduct. Guerrero’s conduct evidenced his consent to Sergeant Hendricks’ passively gazing upon those items which he chose to display — nothing more. In stating that Guerrero “had affirmatively given his consent up to that point,” the suppression court was exactly correct— the consent ended at that point. Guerrero never manifested any consent to Sergeant Hendricks’ act of reaching into his camera bag; the seizure of the brown paper bag was thus non-consensual, even without an extra protest or gesture from Guerrero.

We also note that because Guerrero did not speak English, he could not verbally express his desire that Sergeant Hendricks stay out of his bag. The suppression court posits that a mere gesture would have sufficed to stop the sudden reach; but for all we know from the record, Guerrero might have had to grab the officer’s hand, or otherwise physically repel him. Law-abiding folk naturally hesitate to physically interfere with a police officer, and we should be wary of defining the law of consent to require such a borderline illegal action in order to protect one’s constitutional right not to be unreasonably searched.

The Commonwealth does not contend that its suspicions that Guerrero might be carrying drugs entitled Sergeant Hendricks to conduct a non-consensual search of the camera bag. Therefore, we must conclude that the act of reaching into Guerrero’s camera bag to seize the brown paper bag violated Guerrero’s Fourth Amendment rights, as well as his rights under Art. I Section 8 of the Pennsylvania Constitution, and the heroin found in it should have been suppressed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). Since the heroin seized through this unconstitutional search formed the basis of the case against him, the failure to suppress is certainly not harmless error. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Judgment of sentence vacated, and case remanded for a new trial. Jurisdiction relinquished.

DEL SOLE, Judge,

concurring.

I concur with the Majority’s decision to suppress the fruits of the search. However, my review of the record convinces me that there is no testimony which would support an initial determination of a consent to search.

Sergeant Hendricks testified that the defendant did not understand English and an interpreter was necessary to give Miranda warnings at the police station. Further, he stated that he did not speak Spanish.

There is no testimony which would supports a finding that the defendant consented to a search, meaning it was with knowledge that a search would not be conducted if refused. As recently as March of this year, our Supreme Court reiterated the need of intelligent waiver. In Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203 (1994) it held:

In order for consent to an otherwise illegal search to be valid, the consent must be unequivocal, specific and voluntary. [citations omitted] It is only where there is an intentional relinquishment or abandonment of a known right or privilege that an effective waiver can be found, [citation omitted] The subject of a search must be made aware of his rights against a warrantless search for a waiver to be intelligent.

131, 638 A.2d at 207.

Given that lack of evidence, I conclude the initial showing by the defendant of the bags contents was without consent. Therefore, I do not find it necessary to hold that the defendant, by his actions, limited the extent of an otherwise valid search.

      . Sergeant Hendricks also testified that after displaying each item, Guerrero put the item back into the bag before pulling out the next item. R. 25-26.

      . Our colleague, Judge Del Sole, would go further and hold that no consent may be presumed at all because Sergeant Hendricks did not inform Guerrero of his right to refuse the search. Both the U.S. and Pennsylvania Supreme Courts have held that a search target need not be informed of his right to refuse a search for the search to be voluntary, though such knowledge is properly considered as one aspect in a totality of the circumstances inquiry. Schneckloth v. Bustamonte, supra; Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
      Our Supreme Court’s most recent discussion of consensual searches cites a pre-Schneckloth standard which would require a knowing waiver for a search to be voluntary. Commonwealth v. Gibson, infra (citing United States v. Blalock, 255 F.Supp. 268 (E.D.Pa.1966)). This standard was considered and rejected in Schneckloth, 412 U.S. at 235-246, 93 S.Ct. at 2051-58, and Hubbard, supra at 274-76, 372 A.2d at 694.

        While the waiver language of Gibson supports Judge Del Sole’s concurrence, we hesitate to apply it to the instant case in light of the contrary holdings in Schneckloth and Hubbard. If our high court meant to interpret Art. I, § 8 of the Pennsylvania Constitution to incorporate the waiver standard, it did not so indicate.

      . Such a carefully delimited grant of consent might focus suspicion on the brown paper bag, but no more so than refusing consent to a complete search focuses suspicion on the entire camera bag. Merely exercising one’s constitutional right to refuse a request for a voluntary search will not create probable cause.

      . Moreover, when we consider the logical import of the lower court’s legal conclusion, we see how it could easily "relegate the Fourth Amendment to the special province of 'the sophisticated, the knowledgeable and the privileged.' ” Schneckloth, 412 U.S. at 248, 93 S.Ct. at 2059. Suppose Guerrero responded to Sergeant Hendricks' search request by turning his front pants' pockets inside-out, as if to signify that he was hiding nothing there. Under the analysis below, Sergeant Hendricks would be entitled to presume a complete consent to search from this gesture, and it would be incumbent upon Guerrero to know that he may resist Sergeant Hendricks' efforts to put his hands against a wall, spread his legs and rifle through his other pockets. No reasonable person would dare resist such a show of apparent authority, especially when, as here, the officer flashed his badge and never communicated the right to refuse the search. We cannot possibly expect someone like Guerrero, who speaks no English and has little or no knowledge of the interaction between constitutional protections and police practices, to know that a search under such a powerful show of authority in fact turns on his continued consent. Cf. Commonwealth v. Danforth, 395 Pa.Super. 1, 18-20, 576 A.2d 1013, 1022 (1990) (consent more likely to be voluntary if "the defendant’s background indicates his understanding of investigating procedures or his understanding of constitutional rights”), aff'd 532 Pa. 152, 615 A.2d 308 (1992).


text:
    646 A.2d 589
    Hardie W. BECK v. David L. BECK and Patricia K. Beck. Appeal of Patricia K. BECK.
    Superior Court of Pennsylvania.
    Argued March 17, 1994.
    Filed June 17, 1994.
    Reargument Denied Aug. 29, 1994.

      Robert L. Potter, Pittsburgh, for appellant.

      D. Keith Melenyzer, Washington, for appellee.
    Before WIEAND, DEL SOLE and HUDOCK, JJ.

       Hudock, J., did not participate in the consideration or decision of this appeal.

   WIEAND, Judge.

Before this court for review is an order of the trial court which struck from the record a satisfaction of judgment.

A petition to strike a satisfaction of judgment is equitable in nature and is governed by equitable principles. Epstein v. Kramer, 365 Pa. 589, 591, 76 A.2d 212, 213 (1950). See also: City Deposit Bank and Trust Co. v. Zoppa, 336 Pa. 379, 9 A.2d 361 (1939). A petition to strike the entry of satisfaction is addressed to the discretion of the trial court, whose exercise thereof will not be disturbed unless there has been an abuse of discretion. Shoup v. Shoup, 205 Pa. 22, 23, 54 A. 476, 476 (1903). The entry of satisfaction of a judgment may be stricken where the satisfaction has been entered by fraud or mistake. Philadelphia v. Simon, 12 Pa.Super. 159, 162 (1899). See also: Epstein v. Kramer, supra; Shoup v. Shoup, supra.

In 1981, Hardie W. Beck made a loan of ninety thousand ($90,000.00) dollars to his son and daughter-in-law, David L. and Patricia K. Beck, to assist them in buying a home. As evidence of the indebtedness, Hardie Beck accepted from his son and daughter-in-law a “mortgage note.” According to the terms of the note, the loan was to be repaid in 360 monthly installments of principal and interest, each in the amount of $429.70. After a default had occurred, Hardie Beck telephoned the Office of the Recorder of Deeds of Allegheny County in order to learn the procedure for imposing a lien against the home of his son and daughter-in-law. He was instructed to take the mortgage note to the Office of the Prothonotary. On April 14, 1989, Hardie Beck went to the Prothonotary’s office and confessed judgment on the note for $81,835.70.

Subsequently, David Beck complained to his father about the entry of judgment, and Hardie Beck told his son that he had wanted only to enter the mortgage note as security for the money owed him. On May 17, 1989, Hardie Beck returned to the Prothonotary’s Office and explained that he didn’t want to enter judgment but only wanted the mortgage note to be entered as a lien against the home of his son and daughter-in-law. An employee of the prothonotary produced a form which the employee completed and asked Hardie Beck to sign. The form directed the prothonotary to satisfy the judgment. Thereafter, Hardie Beck was given the mortgage note and supporting documents, which he then took to the Office of the Recorder of Deeds, where the mortgage note was accepted and filed of record. Thereafter, sporadic payments continued to be made to Hardie Beck until September 27, 1990, when David Beck died. On July 2, 1992, Hardie Beck filed a petition to strike the satisfaction of the judgment. This was submitted to the court for decision on the deposition testimony of Hardie Beck and Patricia Beck, who testified that Hardie Beck had told her he intended by his satisfaction of the judgment to forgive repayment. The trial court found that the satisfaction of the judgment had been entered by mistake, contributed to by officers of the court, and ordered it stricken. Patricia Beck appealed.

After careful review, we are satisfied that the trial court’s findings are supported by competent evidence and that its order does not constitute an abuse of discretion.

Appellant argues, however, that the testimony of Hardie Beck was barred by the Dead Man’s Rule recorded at 42 Pa.C.S. § 5930 and should not have been considered by the trial court. A close examination of the statute, however, discloses that it has no application where the action or proceeding is against a surviving joint promisor and the matter occurred between the surviving promisor and the other party of record. In the instant case, the appellee did not testify to anything about which the deceased joint promisor could contradict him. See: Mozino v. Canuso, 384 Pa. 220, 120 A.2d 300 (1956). The mortgage note on which the judgment was entered had been signed by both David and Patricia Beck and represented an obligation that was joint and several. The circumstances surrounding the entry of judgment, the satisfaction of the judgment and the recording of the mortgage note in the Office of the Recorder of Deeds were not such that David Beck could have testified in refutation of his father. The conversation between appellee and his son prior to the satisfaction of the judgment did not form a basis for the relief which appellee requested from the court, and the substance of the conversation was irrelevant except to demonstrate the son’s displeasure with his father’s entry of judgment. Thereafter, the appellee acted according to his own will and without relying on promises, if any, made by the son. The circumstances surrounding appellee’s subsequent conduct in satisfying the judgment, moreover, were confirmed in large measure by documentary evidence, to which the statute can have no application.

Finally, it is significant that appellant testified that appellee had told her prior to her husband’s death that by satisfying the judgment he intended to forgive repayment of the loan. This testimony made appellee competent to testify in rebuttal thereof and to his intent when he satisfied the judgment, as well as the circumstances which confirmed that intent. See: 42 Pa.C.S. § 5933; Huntley v. Goodyear, 182 Pa. 613, 38 A. 507 (1897).

The Dead Man’s Rule has been frequently criticized because of its obstruction of honest claims and its excessive complexity. Packel and Poulin, Pennsylvania Evidence § 601.5 (1987). It will not be extended to defeat a claim, under the circumstances of this case, which is being asserted not against the estate of a decedent but against a surviving joint obligor who has testified that the obligee told her that he intended to forgive the loan'which he was attempting to enforce.

Order affirmed.

      . To complete the form, the employee had to select one of three listed options; he could either settle, discontinue or satisfy the judgment. The employee selected the option to satisfy the judgment.

      . It is disputed whether the payments were on account of the mortgage note.

      . Appellee's motion to quash the appeal will be denied. Although the appealability of an order striking a satisfaction of judgment was questioned by the Superior Court in Philadelphia v. Simon, supra, the Supreme Court consistently, without comment, has entertained appeals from orders granting or refusing to grant petitions to strike satisfactions of judgment. See: Epstein v. Kramer, supra; City Deposit Bank and Trust Co. v. Zoppa, supra; Shoup v. Shoup, supra. The current Rules of Appellate Procedure do not suggest that such orders are not appealable. Because execution can issue on an unsatisfied judgment, we hold that an order striking the satisfaction of a judgment is sufficiently final to be appealable. This is not altered merely because the judgment debtor may subsequently file a petition to open the judgment. Such a proceeding, which may or may not be attempted, is a separate proceeding, which does not impair the immediate appealability of an order striking satisfaction of the judgment.

      . The provisions of 42 Pa.C.S. § 5930 are as follows:
      § 5930. Surviving party as witness, in case of death, mental incapacity, etc.
      Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased or lunatic party, shall be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy, unless the action or proceeding is by or against the surviving or remaining partners, joint promisors or joint promisees, of such deceased or lunatic party, and the matter occurred between such surviving or remaining partners, joint promisors or joint promisees and the other party on the record, or between such surviving or remaining partners, promisors or promisees and the person having an interest adverse to them, in which case any person may testify to such matters; or, unless the action is a possessory action against several defendants, and one or more of said defendants disclaims of record any title to the premises in controversy at the time the suit was brought and also pays into court the costs accrued at the time of his disclaimer, or gives security therefor as the court in its discretion may direct, in which case such disclaiming defendant shall be a fully competent witness; or, unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy is between parties respectively claiming such property be devolution on the death of such owner, in which case all persons shall be fully competent witnesses.


text:
    646 A.2d 1184
    ESTATE OF Mary H. PINKERTON, Appellee, v. Thomas D. PINKERTON, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1994.
    Filed Aug. 15, 1994.

      John A. Snyder, State College, for appellant.
    Denise M. Bierly-McDermott, State College, for appellee.
    Before CAVANAUGH, WIEAND and SÁYLOR, JJ.
   WIEAND, Judge.

Thomas and Mary Pinkerton were married on December 12, 1965, and were separated in April, 1992. On June 22, 1992, Mary filed a complaint for divorce in which she alleged, inter alia, that Thomas had been guilty of a course of conduct constituting indignities to her person. In her complaint, Mary also requested alimony and an equitable distribution of marital property. After hearings on February 11, 1993, and March 1, 1993, at which neither party requested a determination of economic issues, the master filed a report on April 2, 1993, in which it was recommended that a divorce be granted on grounds of indignities to Mary’s person. On April 13, 1993, Thomas filed exceptions to the master’s report and recommendation. On April 14, 1993, Mary moved to dismiss the exceptions because they had been filed on the morning of the eleventh day. She was able to prevail upon the trial court to issue a rule returnable the following day in open court. At that time the court did not dismiss Thomas’s exceptions but did require the parties to submit briefs on the merits of the exceptions within five days. On April 28, 1993, twelve days later, the trial court entered a decree in divorce.

On May 5, 1993, Thomas filed a notice of appeal from the trial court’s April 28, 1993 order. On May 6, 1993, following a prolonged struggle with cancer. Mary died. The following day, May 7, Thomas filed motions for post-trial relief and for reconsideration of the April 28 decree. Also on May 7, Thomas withdrew his earlier notice of appeal. On May 10, 1993, Mary’s estate filed a motion seeking clarification of the status of the parties’ economic claims. A hearing was held on the pending motions, at which the propriety of bifurcation was argued by counsel for both parties. On May 28,1993, the trial court entered an order which, “in addition to and in clarification of’ its April 28 decree, purported to bifurcate the proceedings nunc pro tunc and retain jurisdiction over the economic issues. On the same day, Thomas appealed from the April 28, 1993 divorce decree.

It is well settled that an action in divorce is personal to the parties, and upon the death of either party prior to a divorce decree, the action abates. Drumheller v. Marcello, 516 Pa. 428, 431, 532 A.2d 807, 808 (1987); Geraghty v. Geraghty, 411 Pa.Super. 53, 59, 600 A.2d 1261, 1264 (1991), allocatur denied, 532 Pa. 656, 615 A.2d 1312 (1992); Haviland v. Haviland, 333 Pa.Super. 162, 163, 481 A.2d 1355, 1356 (1984); Hall v. Hall, 333 Pa.Super. 483, 492, 482 A.2d 974, 979 (1984); Matuszek v. Matuszek, 160 Pa.Super. 526, 528, 52 A.2d 381, 381 (1947); Upperman v. Upperman, 119 Pa.Super. 341, 352, 181 A. 252, 256 (1935). Because a divorce action is abated by the death of one of the parties prior to the entry of a decree, economic claims are also abated by the death of one of the parties prior to the entry of a decree. Geraghty v. Geraghty, supra 411 Pa.Super. at 61, 600 A.2d at 1264; Myers v. Myers, 397 Pa.Super. 450, 452, 580 A.2d 384, 385 (1990); Reese v. Reese, 351 Pa.Super. 521, 526, 506 A.2d 471, 474 (1986); Oswald v. Olds, 342 Pa.Super. 495, 500, 493 A.2d 699, 701 (1985). However, once a final divorce decree has been entered, the right of a subsequently deceased spouse to the distribution of marital property and other economic claims, where these matters have been properly put in issue before the death of the spouse, is vested. Leese v. Leese. 369 Pa.Super. 104, 108, 534 A.2d 1101, 1102-1103 (1987); Taylor v. Taylor, 349 Pa.Super. 423, 429, 503 A.2d 439, 442 (1986); Pastuszek v. Pastuszek, 346 Pa.Super. 416, 426, 499 A.2d 1069, 1074 (1985). See also: 23 Pa.C.S. § 3323(d).

When a divorce decree is entered, it is not final until after the appeal period has expired. Laub v. Laub, 351 Pa.Super. 110, 117, 505 A.2d 290, 294 (1986). This does not mean that a divorce action automatically abates if a party dies within thirty days after a decree has been entered. It does mean that the decree is fully reviewable and subject to possible reconsideration by the trial court or reversal by an appellate court. See: Justice v. Justice, 417 Pa.Super. 581, 586, 612 A.2d 1354, 1357 (1993); Anderson v. Anderson, 375 Pa.Super. 341, 346-348, 544 A.2d 501, 504-505 (1988).

In the instant case, appellant contends that the trial court abused its discretion by entering a bifurcated decree when neither party had requested it and without a hearing to determine whether a bifurcated decree was appropriate. The record reveals, however, that all parties and the court were aware that the appellee-wife was dying and that to refuse bifurcation would preclude the entry óf a divorce decree and cause the action to abate. Under these circumstances, it cannot be said that the trial court abused its discretion by entering a bifurcated decree.

Appellant also contends that appellee failed to prove that he was guilty of a course of conduct constituting indignities to the person of his wife. His argument in this respect is that the trial court improperly rejected testimony that he was suffering from an obsessive compulsive personality disorder. The trial court found, however, that the disorder was insufficient to negate the settled hate and estrangement which was the basis for appellant’s abusive conduct. The credibility and weight to be given to this evidence were for the trier of the facts. Unless the trial court’s findings were arbitrary and capricious or unsupported by competent evidence, they may not be disturbed on appeal. See: Schuback v. Schuback, 412 Pa.Super. 233, 235, 603 A.2d 194, 195-196 (1992); Lasko v. Lasko, 311 Pa.Super. 210, 211, 457 A.2d 569, 570 (1983); Dukmen v. Dukmen, 278 Pa.Super. 530, 534, 420 A.2d 667, 670 (1980). Here, we find no basis for disturbing the trial court’s findings.

Affirmed.

      . By motion filed May 24, 1993, the parties’ children, as co-executors of Mary's estate, were substituted as the plaintiff in the action.

      . Claims for counsel fees may, under certain circumstances, survive the abatement of the underlying divorce action. See: McDonald v. Me-

        Donald, 423 Pa.Super. 422, 621 A.2d 604 (1993), allocatur denied, 535 Pa. 675, 636 A.2d 634 (1993).

      . 23 Pa.C.S. § 3323(d) provides as follows:
      (d) Substitution for deceased party. — If one of the parties dies after the decree of divorce has been entered, but prior to the final determination in such proceeding of the property rights and interests of the parties under this part, the personal representative of the deceased party shall be substituted as a party as provided by law and the action shall proceed.


author: BECK, Judge.

text:
    646 A.2d 1186
    Margaret M. PRESTON v. William Russell PRESTON, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued March 16, 1994.
    Filed Aug. 16, 1994.

      James W. Reid, Scranton, for appellant.
    Joseph J. Notarianni, Scranton, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   BECK, Judge.

The issue is whether a father, a support obligor, is entitled to credit for child support payments for an amount paid by the Social Security Administration directly to his children as a result of his retired status. We remand for the court to reconsider the question in light of Children and Youth Services of Allegheny County v. Chorgo, 341 Pa.Super. 512, 491 A.2d 1374 (1985).

Margaret (mother) and William (father) Preston were married in December, 1973. They adopted two children during their marriage, Bradley, born in 1981 and Ashley, born in 1984 (the children). The parties divorced in April, 1992 and in August of that year, the court issued a temporary order directing father to pay $480.00 per month to mother for support of the children. After hearings before the Master and arguments by the parties, the trial court denied father’s request that the funds paid by Social Security directly to the children be credited against his support obligation. Father now appeals the order requiring him to pay $480 per month.

Father is 68 years old and receives a monthly retirement payment from the Social Security Administration. Father’s benefits also include a payment made directly to his children in the amount of $806.00 per month.

In father’s appeal, he relies on a superior court case which holds that there is a presumption that a father is entitled to receive credit against his child support obligation for Social Security payments made directly to his minor children. See Children and Youth Services of Allegheny County v. Chorgo. A full review of Chorgo is appropriate.

William Chorgo’s children, who were in the custody of the county youth services agency, received monthly Social Security benefits. The agency commenced an action to enforce an outstanding child support order against Chorgo and to compel the payment of arrearages. Chorgo argued that he should receive credit for the Social Security payments paid to his children. The trial court rejected his arguments and ordered that no credit be given. A panel of this court concluded that the trial court erred in disallowing the credit.

After reviewing the case law of several other states that addressed the issue, the Chorgo court concluded that there is a rebuttable presumption that credit will be given for Social Security payments made directly to the child. The opinion’s holding does not require credit in all cases. Instead it advises that “the court still has the ability to alter the presumption and give partial or no credit, should the circumstances justify it.” Id. at 520, 491 A.2d at 1378.

In the instant case, the trial court did not address Chorgo. Father relies on the case, and mother, in her appellate brief, attempts to distinguish it. We however conclude that Chorgo is apposite. Both cases involve the duty of a child support obligor where the children are receiving direct payments from Social Security as a result of the support obligor’s Social Security entitlement.

The trial court erred in not considering Chorgo in reaching its decision. Chorgo does not require that credit always be given, the case merely sets forth a rebuttable presumption that credit is appropriate. A party opposing credit may persuade the court that credit is inappropriate under the specific circumstances of the case. Upon determining that a party should be awarded no credit (or only partial credit), the court must then articulate the reasons for its findings on the record. See Chorgo, supra.

Upon reconsideration of the circumstances in this case, it may be that the trial court concludes that credit is inappropriate and that mother has successfully rebutted the presumption.

We remand this matter to determine whether and to what extent father’s support obligation should be credited.

Order of the trial court reversed, matter remanded. Jurisdiction relinquished.

      . The Social Security Act provides that a dependent child of a person who is entitled to Social Security benefits is also entitled to a monthly insurance benefit. See 42 U.S.C.A. § 402(d)(1).

      . Mother attempts to distinguish Chorgo on three grounds. First, she notes that in Chorgo one of the parties was a governmental entity, while in the instant case the parties are parents. Mother argues the difference is significant because unlike the youth services agency in Chorgo, she contributed to Social Security payments made during the marriage because those payments came from household income. This argument is not persuasive because by federal mandate, Social Security benefits are not marital property at the point that funds are in pay-out status, 5 U.S.C.A. § 8345(h)(i). See Endy v. Endy,. 412 Pa.Super. 398, 603 A.2d 641 (1992); Cornbleth v. Cornbleth, 397 Pa.Super. 421, 580 A.2d 369 (1990). Second, mother asserts that Chorgo involved disability benefits while the instant case involves retirement benefits. She points out that traditionally retirement benefits are subject to equitable distribution while disability benefits are not. Ciliberti v. Ciliberti, 374 Pa.Super. 228, 542 A.2d 580 (1988). This argument is also unpersuasive because the instant case involves child support and the rationale found in equitable distribution cases is inapposite. Chorgo. Lastly, mother attempts to distinguish Chorgo by reference to the definition of income in the support statute. She argues that under 23 Pa.C.S.A. § 4302, the term income includes social security payments. We point out that 42 Pa.C.S.A. § 4302 is inapposite to the issue raised in this appeal. The statute in question defines income for purposes of calculating support obligations and does not address the question raised in Chorgo, i.e., whether a parent may claim credit for Social Security payments made directly to children where such payments are paid under the parent’s Social Security entitlement.

      . Unfortunately, Chorgo gives little direction on what type of evidence may support a finding that credit is inappropriate. Since this type of analysis was not employed by the court below, we are unable to determine whether the ruling was proper. Therefore, we find that the parties should be granted the opportunity to argue for or against a credit in light of the Chorgo analysis and the trial judge should rule thereon.

      . In addition to deciding the general issue of whether a credit is appropriate, the Chorgo court also addressed the issue of excess Social Security benefits, that is, benefits which exceed the amount of support ordered by the court. The Chorgo court found that excess benefits must be considered a "gratuity to the children.” Further, excess benefits cannot be used as a prospective credit nor can they be used as a credit toward arrearages which accrued prior to the obligor’s application for benefits. From the record in this case, it appears that the excess benefits issue may have to be addressed on remand.


author: WIEAND, Judge:

text:
    646 A.2d 1188
    STATE FARM INSURANCE COMPANIES v. Jeanette RIDENOUR and Goodville Mutual Casualty Company. Appeal of Jeanette RIDENOUR.
    Superior Court of Pennsylvania.
    Argued March 15, 1994.
    Filed Aug. 22, 1994.

      Donald J. McCue, Connellsville, for appellant.
    William M. Radcliffe, Uniontown, for State Farm, appellee.
    Jeffery D. Wright, Lancaster, for Goodville Mut., appellee.
    Before WIEAND, DEL SOLE and FORD ELLIOTT, JJ.
   WIEAND, Judge:

Jeanette Ridenour, an employee of Mount Pleasant Publishing Company, was injured in a work-related automobile accident while riding as a passenger in a company owned van being operated by Wade Miller, a co-employee, on October 9, 1987. The van was insured by Goodville Mutual Casualty Company (Goodville). State Farm Insurance Companies (State Farm) insured a vehicle owned privately by Jeanette Ridenour. Walter Overly, the driver of the other vehicle involved in the accident, was insured by Nationwide Insurance Company. Following the accident, Ridenour received workmen’s compensation benefits from her employer’s compensation carrier; and, on August 13, 1991, she settled a claim against Overly for fifty thousand ($50,000.00) dollars. This settlement was without Goodville’s consent, and in connection therewith, Ridenour executed and delivered a full release in favor of Overly and his insurance carrier.

Subsequently, Ridenour sought to recover underinsured motorist benefits under the policy which had been written on her own vehicle by State Farm. State Farm denied liability and, on March 1, 1993, commenced an action against Ridenour and Goodville in which it sought a declaratory judgment that it was not liable to Ridenour for underinsured motorist benefits. More specifically, State Farm contended that under the provisions of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1733, Goodville, the carrier providing coverage for the vehicle in which Ridenour had been riding as a passenger, was primarily liable for underinsured motorist coverage. Ridenour filed an answer in which she contended that Goodville was not primarily liable because her claim for underinsured motorist benefits against Goodville was barred by the exclusivity clause of Section 303 of the Workers’ Compensation Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 481(a). Ridenour, nevertheless, filed a cross-claim against Goodville for such underinsured motorist benefits. To this, Goodville filed an answer in which it raised in defense, as new matter, Ridenour’s release of the third party tortfeasor without its consent. This failure by Ridenour to comply with the terms and conditions of Goodville’s policy, it was contended, had extinguished Goodville’s obligation to provide underinsured motorist benefits.

Following the close of the pleadings and the completion of discovery, Goodville and State Farm moved for the entry of summary judgment. These motions were granted by the trial court, which reasoned that: (1) Goodville had primary responsibility for paying underinsured motorist benefits under 75 Pa.C.S. §■ 1733; (2) Ridenour’s receipt of workers’ compensation benefits would not have been a bar to a claim against Goodville for underinsured motorist benefits; and (3) Ridenour’s failure to obtain Goodville’s consent to the settlement of her claim against the third party tortfeasor constituted a defense to Goodville’s liability under its policy. As to State Farm, the court reasoned that it was not primarily liable for underinsured motorist benefits and that Ridenour’s failure to seek such benefits from Goodville, the carrier primarily liable therefor, prevented her from making a claim against State Farm.

A motion for summary judgment may be granted only 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.” Marks v. Tasman, M.D., 527 Pa. 132, 134, 589 A.2d 205, 206 (1991), quoting Pa.R.C.P. 1035(b). In determining whether summary judgment has been properly granted, a reviewing court must examine the record in the light most favorable to the nonmoving party and resolve all doubts against the moving party. E.J.M. v. Archdiocese of Philadelphia, 424 Pa.Super. 449, 453, 622 A.2d 1388,1390 (1993). Summary judgment is proper only in cases where the right is clear and free from doubt. Marks v. Tasman, M.D., supra at 134-135, 589 A.2d at 206. See also: Mariscotti v. Tinari, 335 Pa.Super. 599, 601, 485 A.2d 56, 57 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984).

At the time when the Ridenour claim accrued, i.e., the date of the accident, the provisions of 75 Pa.C.S. § 1733 established the order of liability as follows:

(a) General rule. — Where multiple policies apply, payment shall be made in the following order of priority:

(1) A policy covering a motor vehicle occupied by the injured person at the time of the accident.

(2) A policy covering a motor vehicle not involved in the accident with respect to which the injured person is an insured.

From this it is clear that Goodville, the insurer of the vehicle Ridenour was occupying at the time of the accident, was primarily liable on Ridenour’s claim for underinsured motorist benefits. Therefore, Ridenour’s claim for underinsured motorist benefits should first have been made to Goodville.

Ridenour’s claim against Goodville for underinsured motorist benefits was not barred by the exclusivity clause of the Workers’ Compensation Act. Section 1735 of the Motor Vehicle Financial Responsibility Law provided as follows:

The coverages required by this subchapter [subchapter C; uninsured and underinsured motorist coverage] shall not be made subject to an exclusion or reduction in amount because of any workers’ compensation benefits payable as a result of the same injury.

75 Pa.C.S. § 1735 (repealed July 2. 1993, P.L. 190, No. 44, § 25(a)). In Chatham v. Aetna Life & Casualty Co., 391 Pa.Super. 53, 570 A.2d 509 (1989), the issue was whether the Workmen’s Compensation Act barred an employee, who had sustained injuries in a work-related automobile accident, from recovering uninsured motorist benefits under a policy of automobile insurance which had been issued to the employer and which had covered the vehicle being driven by the employee. The trial court rejected the carrier’s argument that recovery of uninsured motorist benefits was barred by the Workmen’s Compensation Act and entered judgment on the pleadings in favor of the employee. The Superior Court affirmed, relying upon the language of 75 Pa.C.S. § 1735 and dictum in Selected Risks Ins. Co. v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989). Referring to Thompson, the Superior Court said:

We read Thompson to approve the payment of claims for benefits originating, and subject to obtainment by a claimant, through the workmen’s compensation scheme of recovery and the uninsured motorist policy obtained by an employee’s employer. In other words, the high court having spoken on the issue to be resolved, albeit in glancing terms, we read Thompson to embrace the action we take today.
Accordingly, because the Thompson decision, as we read it, is clear on the issue appealed, in addition to the MVFRLs [which permits an employee to recover both workmen’s compensation benefits and uninsured motorist benefits] being later in time than Pennsylvania’s Workmen’s Compensation Law’s exclusivity bar ..., we have no reluctance in affirming the lower court’s judgment on the pleadings.

Chatham v. Aetna Life & Casualty Co., supra 391 Pa.Super. at 60, 570 A.2d at 512-513 (footnotes omitted). The Supreme Court affirmed. See: Chatham v. Aetna Life & Casualty Co., 529 Pa. 494, 605 A.2d 329 (1992). See also: Odom v. Carolina Casualty Ins. Co., 394 Pa.Super. 283, 575 A.2d 631 (1990), aff'd, 529 Pa. 435, 604 A.2d 1023 (1992) (February, 1988 accident); Ferry v. Liberty Mutual Ins. Co., 392 Pa.Super. 571, 573 A.2d 610 (1990) (August, 1985 accident).

Although the claim in Chatham was for uninsured motorist benefits, the same result must obtain where, as here, the claim is for underinsured motorist benefits. Therefore, the trial court did not err when it held that primary liability for underinsured motorist benefits lay with Goodville and that Ridenour was required to seek underinsured motorist benefits from Goodville.

The trial court was also correct when it held that Ridenour’s failure to obtain Goodville’s consent prior to settling with and releasing the third party tortfeasor violated the terms and conditions of the Goodville policy. The uninsured/underinsured motorist endorsement to the policy specifically provided: “This insurance does not apply to ... [a]ny claim settled without our consent.” The policy also provided:

C. OUR RIGHT TO RECOVER FROM OTHERS.

If we make any payment, we are entitled to recover what we paid from other parties. Any person to or for whom we make payment must transfer to us his or her rights of recovery against any other party. This person must do everything necessary to secure these rights and must do nothing that would jeopardize them, (emphasis added).

These provisions were intended to protect Goodville’s right to pursue a cause of action against the person whose fault had caused the loss. When Ridenour released the third party tortfeasor and his liability insurance carrier from all claims arising out of the accident, she extinguished Goodville’s subrogation rights against such parties. When these rights were improperly nullified or impaired by appellant, she no longer was entitled to recover benefits from the insurer. Archer v. State Farm Ins. Co., 419 Pa.Super. 558, 565, 615 A.2d 779, 784 (1992). Thus, it was not error for the trial court to enter summary judgment in favor of Goodville.

What, then, is the effect of this upon Ridenour’s right to recover underinsured motorist benefits from State Farm? First, it is clear that her inability to recover underinsured motorist benefits from Goodville does not entitle her to substitute State Farm as the carrier primarily liable for such benefits. On the other hand, it also does not release State Farm from its secondary liability under the terms of the statute. The limits of liability for underinsured motorist benefits under the Goodville policy were $100,000/$300,000. It follows that if the Ridenour claim for underinsured motorist benefits is less than $100,000, then there can be no recovery from State Farm. On the other hand, if appellant can prove a valid claim for uninsured motorist benefits in excess of $100,-000, there is no reason for disallowing a recovery of such excess from State Farm.

The present state of the record does not enable this Court to determine the amount of the Ridenour claim for underinsured motorist benefits. Therefore, we cannot determine as a matter of law that there can be no recovery of benefits from State Farm. To repeat, however, State Farm’s liability is limited to that amount of underinsured motorist benefits which exceeds $100,000.

The judgment in favor of Goodville Mutual Casualty Company is affirmed. The judgment in favor of State Farm Insurance Companies is reversed, and the claim against it is remanded to the trial court for further proceedings consistent with the foregoing opinion; Jurisdiction is not retained meanwhile.

      . This was Nationwide’s limit of liability under the terms of its policy.

        . The exclusivity provision of the Workmen’s Compensation Act is set forth in Section 303(a), which provides as follows:
      (a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.
      77 P.S. § 481(a) (footnotes omitted).

      . Appellant’s reliance on Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988) and Hackenherg v. Southeastern Pennsylvania Transportation Authority, 526 Pa. 358, 586 A.2d 879 (1991) is misplaced. In those cases, the employees were claiming uninsured motorist benefits and underinsured motorist benefits from a self-insured employer.

      . See: Daley-Sand v. West American Ins. Co., 387 Pa.Super. 630, 564 A.2d 965 (1989) for a discussion of the subrogation rights of an insurance carrier.