author: POPOVICH, Judge:

text:
    458 A.2d 533
    COMMONWEALTH of Pennsylvania v. Walter FREEMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1982.
    Filed March 18, 1983.

      Donald E. Havens, Upper Darby, for appellant.
    Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Judgment of Sentence imposed upon appellant, Walter Edward Freeman, for violating 18 Pa.C.S.A. § 5512 (Lotteries, etc.) and 18 Pa.C.S.A. § 5513 (Gambling devices, gambling, etc.) by Judge Melvin G. Levy of the Court of Common Pleas of Delaware County. We reverse.

Viewing the evidence presented to the court below in a light most favorable to the Commonwealth, the verdict winner, Commonwealth v. Coe, 226 Pa.Super. 594, 323 A.2d 213 (1974), the following facts were established: At approximately 3:00 p.m. on the 12th of November, 1980, Pennsylvania State Trooper Donald L. Fredericks, along with Detective Greg Seltzer and other police personnel, executed a search warrant for the residence of Frank and Delores Miller, located at 1000 Conchester Highway, Chester, Pa. The procedure followed consisted of Trooper Fredericks knocking on the door and announcing his identity and purpose. With this, appellant opened the door and was shown identification by Trooper Fredericks, as well as being told that the police had a search warrant for the residence. Appellant was asked if anyone else was on the premises. He advised Trooper Fredericks that Mrs. Miller, his mother-in-law, was the only other person present and she was sick in bed. This was confirmed by the police. Then, appellant was taken to the living room and was read the content of the warrant while the premises were being searched. At one point during this investigation, Detective Seltzer asked Trooper Fredericks if he would go back to the vehicle to get a box which had a camera and film. After Trooper Fredericks had retrieved the box and was returning to the residence, he “noticed a trashcan located near the garage door of the residence. And there was smoke coming from the trashcan.” (N.T. 10) The Trooper, after tipping over the 25 to 50-gallon container, observed “numbers and tallies on sheets of paper.” (N.T. 11) There was nothing else in the trashcan, other than the couple of hundred sheets of paper. (N.T. 40) Thereafter, Trooper Fredericks doused the flames with wet towels secured from inside the home and yelled to Detective Seltzer that he had found “evidence outside burning.” The contents of the trashcan were placed in a bag by Trooper Fredericks, who, in turn, arrested appellant and Mrs. Miller and gave them their Miranda rights.

Next, the police, after having completed their search, were about to leave when Mr. Miller arrived. He was informed of what had transpired. Despite Mr. Miller advising Trooper Fredericks that Mrs. Miller was sick and suffering from a bad back, the Trooper stated that those arrested would be processed at the Pennsylvania State Police barracks and later arraigned. At this time, appellant admitted to Trooper Fredericks that, as for the evidence seized, he had “placed it in a trashcan and set it on fire.” (N.T. 30) As a result of this admission, only appellant was transported to the police station and charged with the commission of various offenses involved with the operation of a lottéry and gambling devices. See note 1, supra.

Following a preliminary hearing, appellant was held over for court.- Thereafter, appellant’s suppression motion was denied and trial, without a jury, was conducted. After the entry of a guilty verdict, post-trial motions were denied and appellant was sentenced. This appeal followed.

The appellant asserts that the lower court erred: 1) in not suppressing his inculpatory statement; 2) in admitting the inculpatory statement into evidence without first having the prosecution establish the corpus delicti of the offenses; 3) in failing to sustain his counsel’s demurrer to the charges; and 4) in imposing a sentence of total confinement.

As for appellant’s argument regarding the suppressability of an inculpatory remark, we need first to review the circumstances attendant to his warrantless arrest.

An examination of the 16-page search warrant and receipt/inventory sheet nowhere reveals appellant’s name. For example, in that portion of the warrant requesting the “Name of owner, occupant or possessor of said premises to be searched ...,” there appears the appellation: “Frank H. Miller, Delores Miller, Patricia nee [sic] Miller Fontaine, Otto Fontaine.” The probable cause section is no more illuminating, for that portion of the warrant only gives an accounting of “an investigation into the Frank Miller gambling organization for a period expanding over two years.” Although the affiants meticulously list the dates that the Miller’s phone was wiretapped, and in some cases the content of the conversations and names of those participating therein, appellant’s name does not appear anywhere in the warrant. Also, during the 2-year period that Frank Miller was being investigated and his residence placed under surveillance, appellant was not mentioned among those associating with the Miller organization. Thus, given the state of the officers’ knowledge of the case at the time the warrant was executed, it is not unusual to find the Assistant District Attorney stating, during his recitation of the facts at the suppression hearing, that:

“The defendant, Freeman, was never considered to be a target of the search. He is not listed on the search warrant or named at any point during the affidavit of probable cause. It was a surprise [to] the police to find the defendant on the premises.” (Emphasis added) (Suppression Hearing 2/23/81 at 6-7)

With the warrant in hand, Trooper Fredericks secured entry into the Miller home and was told by appellant that he and Mrs. Miller, who was sick in bed, were the only persons on the premises. The two were then escorted into the living room and had the warrant read to them. While the search was being conducted inside, Trooper Fredericks retrieved a camera from his vehicle and, on his way back, observed smoke coming from a trashcan located near the driveway. Initially, Trooper Fredericks did not see the receptacle because it was near a truck parked in the driveway and it was situated approximately 40 feet from the entrance to the house.

After the Trooper extinguished the fire in the trashcan, he noticed that its contents consisted solely of numbers and tallies on sheets of paper. Thereafter, he confiscated the evidence and arrested appellant and Mrs. Miller. The two were then given their Miranda rights. When Mr. Miller arrived and was unable to dissuade the police from arresting his wife, appellant, without any prompting, stated that he had removed the “tally sheets” from his automobile and placed them in the barrel in an attempt to destroy the evidence.

In light of the preceding, appellant contends that there was an absence of probable cause to justify his warrantless arrest. To evaluate the propriety of such a position, we need first to examine the provisions appellant was charged with violating; to-wit, subsection (b)(1) & (2) of Section 5512, which reads:

“(b) Offense defined.—A person is guilty of a misdemeanor of the first degree if he:
(1) sets up, or maintains, any lottery or numbers game;
(2) manufactures or prints, or sells, exposes for sale or has in his possession with intent to sell any unlawful lottery or numbers ticket or share, or any writing, token or other device purporting or intending to entitle the holder or bearer, or any other person, to any prize to be drawn or obtained in any lottery, or numbers game;”
18 Pa.C.S.A. § 5512(b)(1) & (2).

Thus, based on the aforesaid, the establishment of appellant’s guilt for violating the lotteries statute is premised upon the determination of whether he was either “maintaining]” such an operation or was in “possession” of “any writing” entitling a person to a prize to be drawn or obtained in any lottery. See Commonwealth v. Adams, 174 Pa.Super. 504, 508, 102 A.2d 202, 203 (1954) (“ ‘It is not necessary for conviction that there be evidence of the actual operation of a lottery. * * * It is sufficient if the defendant be found in possession of the paraphernalia necessary for operation’ ”). However, it must be kept in mind that:

“There is a clear distinction between what is required for purposes of establishing probable cause for a warrantless arrest or search and what is required for proving guilt. ‘The arresting officer need not have had in hand evidence which would suffice to convict’, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), as it is only the probability, and not a prima facie showing of criminal activity that is the standard for justifying arrest. Commonwealth v. Murray, 437 Pa. 326, 263 A.2d 886 (1970). The probable cause necessary to support an arrest ‘... cannot demand the same strictness of proof as the accused’s guilt upon a trial .... ’ Commonwealth v. Bosurgi, [411 Pa. 56, 190 A.2d 304 (1963)].
Sufficiency of evidence to establish guilt must not be confused with the lesser standard necessary to support the legality of an arrest. Commonwealth v. Bosurgi, supra.” Commonwealth v. Anderson, 224 Pa.Super. 19, 24, 302 A.2d 504, 506 (1973).

Consequently, “ ‘[i]f an officer sees the fruits of crime—or what he has good reason to believe to be the fruits of crime—lying freely exposed on the suspect’s property, he is not required to look the other way, or disregard the evidence his senses bring him. Law enforcement is difficult enough, without requiring a police officer to free his mind of clues lying flatly before him.’ ” (Citation omitted) (Emphasis added) Commonwealth v. Calvarese, 199 Pa.Super. 319, 322, 185 A.2d 657, 659 (1962).

Having set forth some of the guidelines to assist us in assessing the conduct of the police in the context of an arrest, we now turn our attention to a review of the legitimacy of such an action where no warrant has been secured. In this Commonwealth:

“A police officer may make an arrest for a misdemeanor committed in his presence (the possession of numbers paraphernalia) without a warrant: United States v. Murphy, 3 Cir., 290 F.2d 573, 575. In that case the Court said: ‘The Court made it clear in Carroll v. United States, 1925, 267 U.S. 132, 156-157, 45 S.Ct. 280 [286], 69 L.Ed. 543, that an officer can make an arrest without first securing a warrant where he has probable cause to believe that a misdemeanor is being committed in his presence. Probable cause does not require, as the Supreme Court has so frequently said, that the arresting officers have evidence to establish criminal guilt. Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. On the other hand, a mere inkling or suspicion is not enough. United States v. Walker, 7 Cir., 1957, 246 F.2d 519. “Probable cause,” Justice Douglas said in Henry v. United States, 1959, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134, “exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” ’ ” (Emphasis added) Commonwealth v. Calvarese, supra, 199 Pa.Super. at 324, 185 A.2d at 659-660. Accord Commonwealth v. Laniewski, 427 Pa. 455, 235 A.2d 136 (1967); Commonwealth v. Garrick, 210 Pa.Super. 124, 232 A.2d 8 (1967); Commonwealth v. Adams, supra.

Instantly, we need to determine if the evidence confronting the arresting officer was of sufficient quantity and quality to cause him—a prudent man—to believe that appellant was either “maintaining” a lottery or in “possession” of lottery paraphernalia so as to constitute a violation of 18 Pa.C.S.A. § 5512.

To begin with, the search and subsequent seizure complained of were the culmination of a 2-year investigation of the Frank Miller organization. The warrant, albeit not listing the appellant’s name anywhere therein, set forth, inter alia, the following items to be seized: “Slips of illegal lottery plays, ... Tote sheets, charts of illegal number plays and gambling paraphenalia [sic] ____” Also, the police conducted no surveillance of the premises prior to the search which implicated the appellant in some sort of surreptitious or nefarious activity. In fact, as stated by the Assistant District Attorney at the suppression hearing, the police were “surprise[d]” to see the appellant answer the door to let them in. Thereafter, appellant informed the police that he and his mother-in-law were the only occupants. Following this, Trooper Fredericks, while retrieving something from his vehicle, found “a couple of hundred sheets of paper” burning in a trashcan, which upon closer scrutiny proved to be “tally sheets” customarily associated with a “numbers bank.” Immediately after the seizure of the evidence, the police arrested appellant and his mother-in-law for violating the lottery statute.

In determining if Trooper Fredericks had sufficient information to make an arrest for a misdemeanor committed in his presence without a warrant, we need to decide if appellant was in “possession” of the lottery paraphernalia. In making this evaluation, we look for guidance from drug cases. Since no one saw the appellant in actual possession of the “tally sheets,” the Commonwealth was required to show that the defendant had constructive possession, i.e., “the power to control the contraband and the intent to exercise that control.” Commonwealth v. Luddy, 281 Pa. Super. 541, 547, 422 A.2d 601, 604 (1980). On this exact point, this Court has unequivocally stated:

“Although constructive possession may be inferred from the totality of the circumstances, mere presence, or residence at the scene, is insufficient to prove a conscious dominion over the contraband. 'Undoubtedly, the fact of possession loses all persuasiveness if persons other than the accused had equal access with him to the place in which the property was discovered[.]’ ” (Citations omitted) Commonwealth v. Macolino, 302 Pa.Super. 96, 98, 448 A.2d 543, 545 (1982). Accord Commonwealth v. Keblitis, 500 Pa. 321, 324, 456 A.2d 149, 151 (1983) (“Appellant’s mere presence in the garden of a residence not proven to be his own, under circumstances rendering it clear that the marihuana plants therein were equally accessible to be grown by at least three other persons, to wit the three codefendants, is insufficient to establish guilt [for the manufacture of marihuana by growing, 35 P.S. § 780-113(a)(30) (1977),] beyond a reasonable doubt.” (Emphasis in original)).

In the case at bar, the only evidence of (constructive) possession was the Trooper’s testimony that the contraband was found burning in a trashcan 20-feet from the garage, and some 40-feet from the entrance to the house. While the appellant was present at the scene, we have oft-stated that such evidence alone does not present probable cause to arrest. See Commonwealth v. Keblitis, supra; Commonwealth v. Anderson, supra; see also Commonwealth v. Moore, 180 Pa.Super. 538, 541, 118 A.2d 212, 213 (1955) (“Mere presence, in a numbers headquarters also frequented by players does not support a conviction.”). Although “exclusive control over the contents of a residence may properly be inferred from a showing that the accused is the only occupant or tenant of that residence[,]” Commonwealth v. Stamps, 493 Pa. 530, 539, 427 A.2d 141, 145 (1981), such was not the case here. Mrs. Miller was also on the premises. See Commonwealth v. Nardello, 197 Pa.Super. 165, 177 A.2d 166 (1962) (while the defendant did not appear to own the premises, he was alone in the house except for a domestic when the police found appellant sitting on a bed with sixty-seven slips containing horse plays and number bets). The mere statement by the appellant that his mother-in-law was sick and in bed is not conclusive of her inability to have had access to the “tally sheets.” In fact, the police did not consider Mrs. Miller so incapacitated that they were willing to refrain from transporting her to the station house and then arraigning her.

To reiterate, our review of the facts indicates that appellant was not the owner of the dwelling, nor were there any leases, utility and telephone bills, rent receipts or other indicia that he was other than a visitor with Mrs. Miller. See Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971); Commonwealth v. Fiorini, 202 Pa.Super. 88, 195 A.2d 119 (1963); Commonwealth v. Fisher, 166 Pa.Super. 245, 70 A.2d 372 (1950). In other words, “nothing was evident to associate defendant with the incident except his presence on the [premises] ... [20] or more [feet] away from the [trashcan, located outside the house near the garage].” Commonwealth v. Pincavitch, 206 Pa.Super. 539, 543, 214 A.2d 280, 282 (1965); see Commonwealth v. Marino, 142 Pa.Super. 327, 16 A.2d 314 (1940) and compare Commonwealth v. Calvarese, supra; Commonwealth v. Mattera, 151 Pa.Super. 135, 30 A.2d 168 (1943). Also, persons (Mrs. Miller) other than the accused had equal access with him to the area in which the property was discovered. Commonwealth v. Keblitis, supra; 9 Wig-more on Evidence § 2513 (3rd Ed.). Thus, “[i]t was [not] reasonable [for the police to] conclu[de] that a misdemeanor was then and there being committed in their presence.” Commonwealth v. Calvarese, supra, 199 Pa.Super. at 319, 185 A.2d at 657. Given the paucity of evidence found on the premises by the police prior to the “tally sheets” being discovered, the more logical and acceptable procedure would have been for the authorities to maintain the status quo until they could have questioned those present regarding what they had found or, at least, “'so that the identification and purpose of those present could be ascertained and verified.” (Citations omitted) (Footnote omitted) Commonwealth v. Dennis, 289 Pa.Super. 305, 312, 433 A.2d 79, 82 (1981). Absent such conduct, we conclude that the police had insufficient evidence at the moment of the arrest to validate their actions.

Moreover, “[ujnder these circumstances, the basis of the Commonwealth’s case was the legal theory of constructive or joint possession. The Commonwealth attempted to prove this by proof of the appellant [and Mrs. Miller] at the scene, opportunity to commit or join in the possession or control of the [“tally sheets”], guilt by association, and suspicion or conjecture.” Commonwealth v. Tirpak, 441 Pa. 534, 537, 272 A.2d 476, 478 (1971). Under the particular facts and circumstances of this case, this is not sufficient to prove beyond a reasonable doubt that appellant was guilty of the lottery offense (possession). See Commonwealth v. Saeli, 146 Pa.Super. 555, 22 A.2d 597 (1941); Commonwealth v. Marino, 142 Pa.Super. 327, 16 A.2d 314 (1940); see generally Commonwealth v. Keblitis, supra.

Having determined that the Commonwealth failed to establish that appellant was in “possession” of lottery items, it would be inconsistent to hold that appellant was guilty, under subsection (b)(1) of Section 5512, of “setting up” or “maintaining” a lottery. See Commonwealth v. Fiorini, supra, 202 Pa.Super. at 98, 195 A.2d at 124 (“It is not necessary for conviction of unlawfully managing a lottery that there be evidence of the actual operation of the lottery, but the evidence is sufficient for conviction if the defendant is found in possession of the paraphernalia necessary for such operation. Commonwealth v. Fisher, 192 Pa.Super. 288, 161 A.2d 903 [ (1960) ].”); see also Commonwealth v. Rose, 257 Pa.Super. 514, 390 A.2d 1356 (1978) (possession of gambling devices, per se, is not tantamount to “maintaining”). To elaborate, an examination of the receipt/inventory sheet attached to the search warrant discloses no more than the securement of miscellaneous items (letters addressed to the Millers, phone bills and two shotguns), none of which supplemented what the authorities had seized from the trashcan. Stated differently, the police failed to secure “any tools or boards” indicative of a lottery operation. (N.T. 50) Compare Commonwealth v. Laniewski, supra; Commonwealth v. Bufalini, 223 Pa.Super. 489, 302 A.2d 352 (1973); Commonwealth v. Fiorini, supra; Commonwealth v. Oxman, 173 Pa.Super. 482, 98 A.2d 424 (1953); Commonwealth v. Hall, 173 Pa.Super. 285, 98 A.2d 386 (1953); Commonwealth v. Prezioso, 157 Pa.Super. 80, 41 A.2d 350 (1945); Commonwealth v. Wade, 156 Pa.Super. 88, 39 A.2d 460 (1944). It is to be noted that despite the fact that the police were on the premises for approximately two hours and conducted an exhaustive search of the premises, the only evidence of appellant’s role in conducting a lottery was the “tally sheets.” Since we have concluded that appellant was not in “possession” of such evidence, the total absence of any other evidence indicating the operation of a lottery leads to the conclusion that the evidence was not of such volume or quality as to overcome the presumption of appellant’s innocence and establish his guilt beyond a reasonable doubt. See Commonwealth v. Bufalini, supra.

We seriously question whether, assuming for the sake of argument, appellant’s “possession” of the “tally sheets” on only one occasion would constitute “maintaining]” a lottery or numbers game. 18 Pa.C.S.A. § 5512(b)(1). Maintaining is defined, in the context of a statute prohibiting maintenance of a liquor nuisance, as “denot[ing] continuous or recurrent acts approaching permanence.” Black’s Law Dictionary at 859 (5th Ed.1979). Keeping this in mind, we find that what was stated by this Court in Commonwealth v. Lane, 242 Pa.Super. 283, 288, 363 A.2d 1271, 1273 (1976) to be apposite here. That is, “Appellant’s role as a mere conduit between a player and a writer on only one occasion would not constitute a ‘substantial’ engagement in the operation of a lottery.” (Citation omitted) Likewise, instantly, we do not subscribe to the view that appellant’s “possession” of lottery paraphernalia on just one occasion would be the equivalent of a “continuous or recurrent act” evincing the “maintain[ing]” of a lottery or numbers game.

In light of our holding in the first portion of this Opinion, we cannot sustain appellant’s conviction under 18 Pa.C.S.A. § 5513. Since contravention of Section 5513, as is applicable to the case sub judice, required the Commonwealth to establish beyond a reasonable doubt that appellant “set[] up [or] maintain[ed] ... any device to be used for gambling purposes,” our determination supra that appellant was neither in “possession” of lottery paraphernalia nor “maintaining” a lottery renders his conviction under the statute untenable. See Commonwealth v. Rose, supra (warranted search of appellant’s vehicle produced cases of lottery tickets, punch boards, price lists and a notebook with locations, by name, address and phone number in the vicinity of his arrest; albeit evidence was sufficient to prove a violation of Section 5512(b)(2), court held that judgment of sentence as to maintaining a punch board (Section 5513(a)(1)) was not proven); see generally Commonwealth v. Runkle, 287 Pa.Super. 422, 430 A.2d 676 (1981).

Additionally, having concluded that appellant’s warrantless arrest was improper under the particular circumstances of this case, the other evidence (inculpatory statement) was “come at by the exploitation of that illegality” and hence may not be used against Freeman. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Such a determination by this Court dispenses with the need to address appellant’s remaining issues.

Judgment of sentence reversed and appellant is ordered discharged.

      . Appellant also was charged with tampering with the evidence (18 Pa.C.S.A. § 4910). However, the trial court sustained appellant’s demurrer as to this offense at the close of the Commonwealth’s case.

      . “Tally sheets” are paper containing, basically, a summary of letters in code, followed by numbers, which identify the people who write numbers, as compared to those individuals who actually place a bet on a number with the "writer,” how much money is owed by the “writer” and/or turned in by him to the head of the numbers organization ("bank”). (N.T. 38, 41-42) "Tally sheets” are kept by the head of the numbers organization; in other words, the "bank.” (N.T. 34)

      . Trooper Fredericks’ opinion as to the content and meaning of such evidence was based on his views as an expert in the field, which was not challenged at trial. See Commonwealth v. Lane, 242 Pa.Super. 283, 363 A.2d 1271 (1976); Commonwealth v. Polite, 190 Pa.Super. 329, 154 A.2d 287 (1959).

      . This is not altered by the Commonwealth’s assertion that, inasmuch as the “tally sheets” had not yet been consumed by the flames when the police discovered them, it is reasonable to infer that the fire was of recent origin. (Commonwealth’s Brief at 9) As a result, it was not improbable for Trooper Fredericks to infer from such evidence that appellant was just as culpable of attempting to destroy the evidence as Mrs. Miller. It is true that such efforts at concealment have been considered in other lottery convictions. See Commonwealth v. Gregory, 183 Pa.Super. 53, 127 A.2d 788 (1956); Commonwealth v. Cese, 176 Pa.Super. 650, 109 A.2d 228 (1954). “In all those cases, however, there was additional evidence, such as phone calls from bettors, gambling paraphernalia or money representing bets and the concealment was considered along with such evidence, all of which is absent here.” Commonwealth v. Bondi, 217 Pa.Super. 133, 137, 269 A.2d 398, 400 (1970).

        Under the Commonwealth's argument, if, parenthetically speaking, 20 people were on the Miller’s premises at the time the "tally sheets” were found, the police would have been justified in arresting all those at the scene for violating the lottery statute (possession). We do not countenance such guilt by association as a means to an end, i.e., arresting and prosecuting those suspected of committing a crime. See Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971). Even in arson cases, the amount of circumstantial evidence tolerated to establish one’s guilt exceeds that which was presented here. See, e.g., Commonwealth v. Nasuti, 385 Pa. 436, 123 A.2d 435 (1956).

      . Althdugh the Commonwealth, in the Criminal Information at No. 6142B of 1980, charged appellant with violating subsection (a) paragraphs (1), (2), (3) and (4) of Section 5513, our perusal of the evidence fails even to hint at the presentation of sufficient facts to establish a violation of any of the paragraphs under subsection (a), save for (1). See Commonwealth v. Betres, 237 Pa.Super. 361, 352 A.2d 495 (1975). The relevant provisions of Section 5513 read:
      “§ 5513. Gambling devices, gambling, etc.
      (a) Offense defined.—A person is guilty of a misdemeanor of the first degree if he:
      (1) intentionally or knowingly makes, assembles, sets up, maintains, sells, lends, leases, gives away, or offers for sale, loan, lease or gift, any punch board, drawing card, slot machine or any device to be used for gambling purposes, except playing cards;
      (2) allows persons to collect and assemble for the purpose of unlawful gambling at any place under his control;
      (3) solicits or invites any person to visit any unlawful gambling place for the purpose of gambling; or
      (4) being the owner, tenant, lessee or occupant of any premises, knowingly permits or suffers the same, or any part thereof, to be used for the purpose of unlawful gambling.”
      18 Pa.C.S.A. § 5513.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    458 A.2d 541
    COMMONWEALTH of Pennsylvania v. James BLACKWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 22, 1981.
    Filed March 18, 1983.

      Robert F. Pappano, Assistant Public Defender, Media, for appellant.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   WATKINS, Judge:

Appellant, James Blackwell, takes this appeal from his conviction for robbery. In his appeal, the appellant raises several issues, including: (1) the lower court erred in denying appellant’s petition to dismiss under Pa.R.Crim.Pro. 1100, (2) the court erred in not formally arraigning appellant at least ten days prior to trial, (3) appellant was denied effective assistance of counsel for various reasons, and (4) the court erred in refusing to permit appellant to file pre-trial motions. We find the first three of these issues to have no merit, however, we find appellant’s fourth issue to be valid and we remand for a hearing on appellant’s pre-trial motions.

On July 9, 1977, the Monteo Wholesale Food Warehouse in Chester, Pennsylvania was robbed by two men. Based on a description of the two felons and of the car they drove, the police stopped and arrested appellant two hours after the robbery. In due course, appellant was tried before a jury and convicted of robbery and related offenses.

Appellant first argues that the court erred in denying appellant’s petition to dismiss the charges under Pa.R.Crim. Pro. 1100. A hearing was held on appellant’s petition, and the evidence introduced at this hearing shows that on July 9, 1977, the appellant was arrested and charged, and a preliminary arraignment was held that same day. On July 21, 1977, a preliminary hearing was held, at which time appellant signed a subpoena informing him that he was to appear for a formal arraignment on August 12, 1977 at a specified time and place, whereupon appellant was released on bail. On the designated date, however, appellant failed to appear for the arraignment. Therefore, in keeping with local procedures, the magistrate declared appellant to be a fugitive and recommended to the common pleas court that it issue a bench warrant. The bench warrant was not issued, however, until October 12, 1977, which was the date on which this matter was scheduled to go to trial. Because appellant had moved without notifying the court, appellant was not located until December 29, 1977, when he was arrested under the bench warrant.

At the Rule 1100 hearing, appellant testified that on the date that he was supposed to appear for his arraignment, that is August 12, 1977, he arrived an hour late and went instead to the Public Defender’s Office. Appellant further testified that his public defender assured him that here would be no problem about a bench warrant and that appellant would be notified of a trial date. Appellant said that he never received such notice. Appellant now takes the position that the Commonwealth did not exercise due diligence in locating him and in bringing him to trial. We find this argument to be without merit.

In Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978), the Supreme Court ruled that the Commonwealth does not have to prove due diligence under Rule 1100 where a defendant was out on bail and had notice of a required court appearance but failed to appear as ordered. As the Supreme Court said in Cohen, 481 Pa. at page 354, 392 A.2d at page 1330:

Where a defendant undertakes to accept the status of bail during the pendence of court proceedings he assumes the responsibility of making himself available for any court appearances required of him in connection with the action, upon receipt of reasonable notice. To focus solely upon the conduct of the Commonwealth not only ignores the defendant’s dereliction of an obligation, but also places him in the position of possibly benefiting from his own wrongdoing. Where the delay results from the defendant’s willful failure to appear at the appointed time it is obviously not the type of harm envisioned in the protections sought to be afforded by the speedy trial guarantee. To the contrary, the delay is directly attributable to the fact that he was in a bail status, and not in custody, and that he deliberately abused that prerogative.

We conclude that Cohen applies to appellant’s case and so dismiss his first argument on that basis.

In his next issue, appellant contends that the lower court erred in not arraigning appellant ten days prior to trial. Appellant’s formal arraignment did not take place until the day of trial, April 16, 1980. In 1977, when appellant was arrested, Pa.R.Crim.Pro. 317(b) required that “arraignment shall be in such form and manner as provided by local court rule or practice. It shall take place at least ten (10) days before trial unless provided otherwise by local court rule or waived by a defendant who has counsel.” The Comments to the rule added this: “Although this Rule does not explicitly require formal arraignment, judicial districts must see to it that the purposes for which arraignments are held, as specified in this Rule, are observed in some fashion in all court cases.”

In appellant’s case, appellant was informally arraigned shortly after his arrest. Appellant makes no allegation of prejudice arising from having his formal arraignment at the time of trial. In Commonwealth v. Jennings, 446 Pa. 294, 285 A.2d 143 (1971), the Supreme Court approved an informal method of arraignment at a murder trial, and held that even if the procedure was in error, it was nonetheless harmless. The court noted that the purpose of arraignment is to fix the identity of the accused, to inform him of the nature of the charges against him, and to provide him with the opportunity to plea thereto. In Jennings, the Court found that every purpose of an arraignment was satisfied and no prejudice resulted to the accused as a result of the failure to follow the rules of criminal procedure to the letter. We reach the same conclusion with regard to appellant’s case.

In his next argument, appellant asserts, that he was denied the effective assistance of counsel at trial for various reasons. The first of these is that counsel tried to persuade appellant to plead guilty, saying that if he didn’t he would receive a substantial prison term. However, in view of the fact that appellant elected not to plead guilty, this argument is pointless.

Appellant’s second contention is that trial counsel was ineffective because counsel was aware of, but failed to call, “a witness who would have testified that the appellant was not involved in the commission of this crime.” Appellant, however, does not offer the name of this witness nor relate the substance of this witness’ proposed testimony. In this respect, appellant’s case is comparable to that of Commonwealth v. Oliver, 280 Pa.Superior Ct. 274, 421 A.2d 719 (1980), where we refused to either find counsel ineffective or to remand for a hearing on the question of counsel’s failure to call witnesses in the accused’s behalf. We ruled that where the accused did not identify the witnesses nor indicate what testimony the witnesses would have given, such remedies were not warranted. See also, Commonwealth v. Charleston, 251 Pa. Superior Ct. 311, 380 A.2d 795 (1977).

Lastly, appellant argues that the court erred in refusing to permit appellant to file pre-trial motions. The lower court ruled that since appellant failed to appear at his first scheduled trial date of October 12, 1977, that appellant forever waived his right to file pre-trial motions. On this point, the trial court is in error.

At the time that appellant’s case was pending for trial, Pa.R.Crim.Pro. 305 stated:

Except as provided in these Rules, no pretrial application shall be considered if made less than ten days beofre trial unless opportunity therefor did not exist or the defendant or his attorney was not aware of the grounds for the application.

While Rule 305 was not itself discussed by this Court in Commonwealth v. Throckmorton, 241 Pa. Superior Ct. 62, 359 A.2d 444 (1976), we did address ourselves to an identical time limitation then contained in Pa.R.Crim.Pro. 323(b), which dealt with pre-trial suppression motions. Rule 323 required that a suppression motion be filed ten days before the day the case was listed for trial. The issue in Throckmorton was whether an accused on retrial could file a suppression motion which had not yet been litigated in motions before the first trial. We held that under Rule 323, an accused may file such a motion before his second trial, and we concluded that Rule 323 “by its terms, could equally refer to both a retrial and an initial trial, provided that the issue has not yet been determined.”

Our subsequent opinion in Commonwealth v. Taggart, 291 Pa. Superior Ct. 133, 435 A.2d 604 (1981) is even more to the point. In Taggart, the accused had been granted a new trial; this trial ended with the defendant’s conviction. Subsequently, the defendant filed a PCHA petition in which he alleged that trial counsel was ineffective because, inter alia, he failed to raise certain issues in pre-trial motions. The PCHA hearing judge dismissed this contention and ruled that trial counsel at the second trial acted properly in not filing pre-trial motions because, in the Court’s view, the defendant had no right to file such motions at that stage. The court reasoned that although the defendant had been granted a new trial, the pre-trial stage terminated upon the commencement of the first trial. We found this to be error, based upon our reasoning in Throckmorton. However, despite the error, we did not find that the trial court’s error in refusing the motions automatically entitled the defendant to a new trial. Rather, we noted that trial counsel cannot be found ineffective for failing to assert a meritless claim and we concluded that the proper course for the PCHA court in Taggart would have been to review the pretrial motions sought to be raised by the defendant to determine if they had arguable merit and to further determine whether counsel’s failure to raise these motions had some reasonable basis designed to effectuate his client’s interests.

A similar result must be reached in appellant’s case. Regardless of the reason, appellant’s trial was postponed and appellant was given a new trial date. In keeping with the reasoning in Throckmorton and Taggart, the timeliness of appellant’s pre-trial motions must be determined in relation to his final trial date, not his original trial date. Nevertheless, as we said in Taggart, this does not automatically entitle appellant to a new trial. Instead, appellant’s case must be remanded for a hearing on appellant’s pre-trial motions. If the court finds merit in any of appellant’s issues, it is to grant appropriate relief. If, however, the court finds no merit in any of appellant’s claims, then appellant’s conviction shall stand. In all other respects, we find no merit in appellant’s issues.

Remanded for a hearing on appellant’s pre-trial motions. If the court finds merit in any of these pre-trial motions, it is to grant appropriate relief. If the court finds no merit in these issues, then appellant’s conviction shall stand. This Court relinquishes jurisdiction.

      . Although Commonwealth v. Oliver, supra, is procedurally different in that it was a case under the Post Conviction Hearing Act, 19 P.S. 1180-1 et seq., we nonetheless find its reasoning to be applicable to the present situation.

      . The rules of procedure had been amended by the time appellant came to trial on April 16, 1980, however, the rules specifically provided that the new time limits were only effective as to cases in which the indictment or information was filed on or after January 1, 1978.


author: SPAETH, Judge:

text:
    458 A.2d 545
    FELD AND SONS, INC., T/A Today’s Man and David Feld, David Klein, Alan Becker and Jake Jacobson, Individually, Appellants, v. PECHNER, DORFMAN, WOLFEE, ROUNICK, AND CABOT, a Pennsylvania Partnership and Stephen J. Cabot, Martin J. Sobol, Julius M. Steiner, John Dorfman, Lenard Wolfee, Sidney J. Smolinsky, Leonard Schaefer, Milton P. King, Walter Lazaroff, Jack A. Rounick, Charles W. Bowser, Emanuel A. Bertin, Edwin N. Barol, Barry H. Frank, and Daniel T. Berkley, indiv. and T/A Pechner, Dorfman, Wolfee, Rounick & Cabot, a Pennsylvania Partnership and Alan M. Dabrow, Barry F. Bevacqua, Robert J. Simmons, Kenneth M. Jarin, and Gerald R. Cureton, Individual Part Defendants.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1982.
    Filed March 25, 1983.
    Petition for Allowance of Appeal Granted Sept. 30, 1983.
    Petition for Allowance of Appeal Denied Sept. 30, 1983.

      Steve Alexander, Philadelphia, for appellants.
    Richard M. Shusterman and Morris R. Brooke, Philadelphia, for appellees.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   SPAETH, Judge:

This is an appeal from an order sustaining appellees’ preliminary objections in the nature of a demurrer and dismissing appellants’ complaint in trespass and assumpsit. Appellees were appellants’ lawyers in a labor dispute. In proceedings before the National Labor Relations Board, the individual appellants committed perjury, falsified exhibits, and offered a potential witness against them a bribe not to testify. As a result they were convicted of a federal crime, and were fined and placed on probation. Appellants allege that they engaged in this criminal conduct on the advice and with the assistance of appellees, and they seek compensatory and punitive damages for professional malpractice (Count I), the infliction of emotional distress (Count II), and deceit (Count III), and compensatory damages for breach of contract (Count IV). The lower court held that appellants are entitled to no relief because they and appellees are in pari delicto. We agree with the lower court that appellants are entitled to no relief, except we think that if they can prove their allegations, they are entitled to recover the legal fees they paid appellees. We shall therefore modify the order of the lower court to provide that appellants’ complaint is dismissed, except as to so much of Count IV as seeks to recover legal fees paid appellees. As so modified, the order will be affirmed.

1

Since the case arises on appellees’ demurrer to appellants’ complaint, we shall assume that the facts pleaded in the complaint are true. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976); DeSantis v. Swigart, 296 Pa.Super. 283, 442 A.2d 770 (1982). The complaint is detailed and diffuse, comprising one hundred and forty six paragraphs. R.R. 6a-55a. Its dispositive allegations may be summarized as follows.

Appellants are engaged in the retail men’s clothing business. One of appellants is a corporation, trading as “Today’s Man;” the other appellants are individuals who are officers or employees of the corporation. Appellees are a law firm, Pechner, Dorfman, Wolffe, Rounick & Cabot, and partners and associates of the firm. In June 1977 the corporation retained the Pechner firm as special labor counsel. The corporation wanted to prevent the Philadelphia Joint Board, Amalgamated Clothing and Textile Workers’ Union, AFL-CIO, from organizing its warehouse employees. As the corporation’s labor counsel, members of the labor section of the Pechner firm devised a plan to prevent unionization of the warehouse employees. Generally stated, the plan was to ensure that a majority of the warehouse employees would vote against being represented by the union. To accomplish this, several warehouse employees suspected of being sympathetic to the union were fired, and certain management personnel, specifically, Larry Feld and appellants Klein and Jacobson, each a vice-president of the corporation, were falsely designated as warehouse employees.

In the ensuing dispute, the union filed a representation petition with the National Labor Relations Board, seeking an order fixing the membership of the warehouse employee bargaining unit. At the hearings on the petition, appellants lied under oath and submitted falsified time cards and payroll records in an effort to convince the hearing officer that the designated warehouse employees were in fact warehouse employees who should be permitted to participate in the union representation election. Appellants engaged in this criminal conduct on the advice and with the assistance of the Pechner firm labor lawyers.

The union also filed an unfair labor practice complaint with the National Labor Relations Board. A warehouse employee, one Tyrone Evans, was subpoenaed to testify at the hearing on the complaint. Evans knew that appellants had lied under oath and had submitted false documents at the hearing on the representation petition. In an attempt to keep him from testifying, several of the Pechner firm labor lawyers and Feld offered Evans a bribe to ignore the subpoena for his appearance.

As a result of their conduct at the representation hearing, the individual appellants were indicted for perjury and interference with an agent of the National Labor Relations Board. Each was convicted of a federal crime, and was fined and placed on probation.

Appellants allege that as a result of the Pechner firm’s representation of them, they suffered various damages, including loss of business, emotional distress, and unnecessary legal expenses. Count I of the complaint seeks compensatory damages “in an amount exceeding $250,000” and punitive damages for professional malpractice; Count II seeks the same damages for the infliction of emotional distress, and Count III, for deceit. Count IV seeks compensatory damages for breach of contract, “in an amount equal to the monies already paid” the Pechner firm, and “in an amount equal to the monies necessarily expended by [appellants] to correct the effects” of the Pechner firm’s breach of contract to provide appellants “competent, professional advice of the quality reasonably to be expected from labor counsel.” Complaint, paras. 145(b), 141.

2

The common law doctrine of in pari delicto (“in equal fault”) is an application of the principle that “ ‘no court will lend its aid to a man who grounds his action upon an immoral or illegal act.’ ” Fowler v. Scully, 72 Pa. 456, 467 (1872) (collecting authorities, and quoting YEATES, J., in Mitchell v. Smith, 1 Binn. 110, 121 (1804), who was in turn quoting Lord Mansfield in Holman v. Johnson, 98 Eng. Rep. 1120 (1775)). When the doctrine is applied, the result is to render the transaction between the parties “absolutely without any force or effect whatever ____ The law will leave the parties just in the condition in which it finds them.” Pittsburg v. Goshorn, 230 Pa. 212, 227 (1911). And see Kuhn v. Buhl, 251 Pa. 348, 371, 96 A. 977 (1916); Burkholder v. Beetem’s Adm’rs, 65 Pa. 496, 505-506 (1870).

The doctrine is subject to qualifications, however, which have been variously stated. In Story Equity Jurisprudence § 423 (14th ed. 1918) it is said:

And indeed in cases where both parties are in delicto, concurring in an illegal act, it does not always follow that they stand in pari delicto; for there may be, and often are, very different degrees in their guilt. One party may act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age; so that his guilt may be far less in degree than that of his associate in the offense. And besides, there may be on the part of the court itself a necessity of supporting the public interests or public policy in many cases, however reprehensible the acts of the parties may be.

Generally stated, appellants’ argument is that they are within Story’s qualification, that is, that their “guilt [is] far less in degree” than appellees’. They compare themselves to “the blind owners of a ship who retained the expert services of navigators [the Pechner firm lawyers] to guide them through potentially dark and troubled waters [the dispute with the union].” Brief for Appellants at 45. “Unbeknowst” to them, they say, the lawyers were “mutinous navigators who were bent on steering [appellants’] uninsured ship into a violent storm.” Id. “Public policy demands,” they conclude, “that [the lawyers] be made to accept civil liability for their mutinous behavior.” Id. at 46.

Appellants’ self-pity is almost as reprehensible as their conduct before the National Labor Relations Board. Granted that the Pechner firm lawyers advised them to lie under oath, to prepare and to submit false documents, and to attempt to bribe a potential witness not to testify. Still, no one made them engage in such conduct. Appellants plead all sorts of excuses for their conduct. For example, they say—and we take it as true—that the lawyers told them that it was “legal” to fire warehouse employees sympathetic to the union, Complaint, para. 37(a); that they didn’t know “until two or three days before” the first hearing on the representation petition that their testimony would be under oath, id., para. 50; that the lawyers told them “that the best way to counter the expected union lies was to present misstatements of fact” [why is the Union’s evidence “lies” and appellants’ “misstatement of facts?”] and “introduce falsified time cards,” and that “this was the way things were always done,” id., para. 51(d), (f); that they acted on the lawyers’ “coaching, instruction, [and] advice,” id., para. 68; and so on. But these allegations do not diminish in the slightest degree the deliberate wilfulness of appellants’ conduct. They knew exactly what they wanted to do: defeat the union. When the lawyers told them how to do it—that they should commit perjury and falsify documents—they did it.

Given the deliberate wilfulness of appellants’ conduct, we might decide this case by holding that appellants are not within Story’s qualification of the doctrine of in pari delicto: they did not “act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age;” it therefore may not be said that their “guilt [is] far less in degree than that of [appellees as their] associate^] in the offense;” they therefore are in pari delicto with appellees.

If we were to take this approach, however, we should have to ask one more question, in Story’s words, whether “there may be on the part of the court itself a necessity of supporting the public interests or public policy ..., however reprehensible the acts of the parties may be.” In other words: Even though appellants and appellees are in pari delicto, are there considerations of public policy that persuade us that appellants are nevertheless entitled to relief? Appellants, not expressly but by implication, argue that we should ask this further question, for, as we have mentioned, they conclude their brief with the assertion that “[pjublic policy demands that [appellees] be made to accept civil liability” for their conduct. Brief for Appellants at 46. Appellees take the same approach, although not surprisingly, in their view public policy requires that appellants be denied relief.

Distinguished, and recent, precedent supports this traditional two-step, as it may be described, approach. In Tarasi v. Pittsburgh National Bank, 555 F.2d 1152 (3d Cir.) cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 451 (1977), the action was to recover under the Securities Exchange Act. The plaintiffs had received confidential information from an officer of the defendant bank concerning a prospective merger of two corporations. Without disclosing that they were acting on the basis of this information, the plaintiffs bought stock in one of the corporations. When instead of going up in value, the stock went down, the plaintiffs sued the bank officer and the bank for their loss. On the defendants’ plea of in pari delicto, the District Court granted summary judgment in their favor. The Court of Appeals affirmed. In doing so, the court followed the traditional two-step approach. First it asked whether the parties were in pari delicto. Both sides had violated the Securities Exchange Act, the bank officer as a “tipper” and the plaintiffs as “tippees.” While acknowledging that their respective conduct was therefore not the same, the court nevertheless concluded that the plaintiffs’ fault was “substantially equal” to the defendant, and had “a sufficient causal relation with their losses.” 555 F.2d at 1162. In reaching this conclusion, the court emphasized—as we have, in our comments on the nature of appellants’ conduct—that “the plaintiffs in this case willingly committed illegal acts____” Id. Accordingly, the court said, “the concept of in pari delicto ” was “[brought] into play.” Next, the court proceeded to “complete [its] inquiry” by considering whether there were considerations of public policy such that despite their equal fault, the plaintiffs should be entitled to recover their losses from the defendants. Id. at 1162-64. (The court found no such considerations.)

Upon reflection, we have decided not to take this two-step approach. The reason we have decided not to take it is its dependence upon the concept of “public policy.” “[Public policy] is a very unruly horse, and once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail.” Richardson v. Mellish, 130 Eng.Rep. 294, 303 (1824), Burrough, J.

In explaining our conclusion, we may start with a simple case, in which the analysis involves only one step, not two. Consider, for example, Jenkins v. Fowler, 24 Pa. 308 (1859). There the parties were farmers, who owned adjoining lands. To save labor and expense in planting and harvesting their crops, they agreed to enclose their fields. The fence they put up closed off not only their fields but also a public road. “When the defendant got his own crop away, he threw down that part of the fence which he had placed on the road, and thus caused the plaintiff’s grain to be destroyed by the cattle which were let in upon it.” Id. 24 Pa. at 309. In holding that the plaintiff was entitled to no relief, the Supreme Court said that the parties’ agreement “was illegal and void. It was an agreement to commit a nuisance for which both of the parties were liable to an indictment____ The contract being wholly void, one of the parties cannot sue the other for the breach of it.” Id.

In a case such as Jenkins, resort to the doctrine of in pari delicto may be helpful, for one party’s fault may persuasively be characterized as “equal” to the other’s: each party entered into the identical illegal agreement—to close off a public road; and each did the identical illegal act—putting up the fence.

Now consider a case in which one party’s conduct is not the same as the other’s. The “tipper,” who leaks confidential information, does not commit the same wrong as the “tippee,” who acts upon the information. When in such a case the court resorts to the doctrine of in pari delicto, it will be led, as the court in Tarasi v. Pittsburgh National Bank, supra, was led, into taking the traditional two-step approach: Since the respective parties’ conduct was not the same, it cannot be simply equated. Perhaps, however, their conduct was “substantially equal.” If so, are there “considerations of public policy” that should nevertheless permit the plaintiff to recover? We do not find this a useful inquiry.

Suppose, for a moment, that instead of comparing conduct—the plaintiff’s with the defendant’s—we compare something else, say, oranges with potatoes. Since the objects are not identical, we may not say that they are “in pari;” the one-step approach taken in Jenkins is not available. Let us therefore try the two-step approach taken in Tarasí. Taking the first step, we might decide that since both oranges and potatoes are food, they are at least in some sense “substantially equal.” Taking the second step, we might then go on to ask whether there are considerations of policy such that oranges should nevertheless be favored. But how could that question be answered? From one point of view—source of Vitamin C—oranges should be favored, but from another—source of carbohydrates—potatoes should be. Thus the decision which should be favored would depend upon which policy were chosen, and that choice would be essentially arbitrary.

It is all very well to decide that in terms of “fault” the plaintiff’s conduct is “substantially equal” to the defendant’s. But going on to ask whether because of “considerations of public policy” the plaintiff should nevertheless be favored—should be granted relief—is like comparing oranges and potatoes. From one point of view, the plaintiff should be favored, but from another, he shouldn’t be; and choosing which point of view to adopt will often be essentially arbitrary. It is this quality of arbitrariness that justifies the characterization of public policy as “a very unruly horse,” which may carry one “you never know where.”

Consider the facts before us. We may not take the one-step approach of Jenkins, for appellants’ conduct was not the same as appellees’. While appellees advised appellants to lie, it was appellants who did lie. Neither was appellants’ character the same as appellees’ (business men versus professionals); nor were their motives (to defeat the union versus to earn a fee). Suppose then that we take the two-step approach of Tarasí Certainly appellants and appellees were both at fault, and perhaps we might persuasively say that their fault was in some sense “substantially equal.” But what then? We could decide that “considerations of public policy” require that dishonest lawyers be punished, even though that means their dishonest clients recover damages in excess of $250,000. That’s what appellants urge us to decide. Or we could decide that “considerations of public policy” require that adjudicatory proceedings intended to enforce national labor relations be free of perjured testimony, even though that means dishonest lawyers escape paying damages. That’s what appellees urge us to decide. Just as when comparing oranges with potatoes, we could favor either appellants or appellees, depending upon which point of view—which “public policy”—we chose. But it would be difficult to characterize our choice as other than arbitrary. In another action another court might with equal justification make another choice. Cf. Tarasi v. Pittsburgh National Bank, supra, and Nathanson v. Weis, Voisin, Cannon, Inc., 325 F.Supp. 50 (S.D.N.Y.1970), with Kuchnert v. Texstar Corp., 412 F.3d 700 (5th Cir.1969). And see the several opinions in Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134 (1968), 88 S.Ct. 1981, 20 L.Ed.2d 982.

We think we will do better if we altogether avoid resort to the doctrine of in pari delicto. While we acknowledge the doctrine’s usefulness in such uncomplicated cases as Jenkins v. Fowler, supra, here, in our opinion, it causes more difficulties than it resolves.

Instead, we shall rely upon the general principle of which the doctrine of in pari delicto is a specific and limited application. That principle, as already remarked, is that “no court will lend its aid to a man who grounds his action upon an immoral or illegal act.” Fowler v. Scully, supra at 467. While we find no persuasive answer to the question whether appellants’ conduct was more, or less, or equally, “immoral or illegal” than was appellees’, that it was immoral or illegal is clear; and that appellants’ action is grounded upon their immoral or illegal conduct is also clear. We find this a sufficient basis for decision.

The reason no court will lend its aid to an action grounded upon immoral or illegal conduct is that “the law will not suffer itself to be prostituted.” Fowler v. Scully, supra at 468. Were we to aid appellants—confessed perjurers—in their attempt to recover compensatory and punitive damages in excess of $250,000, we should indeed “suffer [the law] to be prostituted.” For we should reward appellants, with a great deal of money, for their criminal conduct; we should soften the blow of the fines and sentences imposed upon them; and we should encourage others to believe that if they committed crimes on their lawyers’ advice, and were caught, they too might sue their lawyers and be similarly rewarded.

3

We recognize, however, that the principle that “no court will lend its aid to a man who grounds his action upon an immoral or illegal act” is not some sort of magic wand before which the most complex case dissolves into simple solution. The circumstances may be so tangled that by deciding not to lend its aid to one party, the court will aid the other. In such a case, how should the court proceed? This very question arises here, for one of appellants’ demands is to recover the legal fees they paid appellees, Complaint, para. 145, and if, in refusing to aid appellants, we preclude them from recovering these fees, we shall to that extent aid appellees. We must therefore ask whether we wish to do that.

In considering whether we should aid appellees by enabling them to keep the legal fees appellants paid them, we have found the opinion of Chief Justice Rugg in Berman v. Coakley, 243 Mass. 348, 137 N.E. 667 (1923), especially helpful. There the plaintiff was the proprietor of a hotel in Boston and the defendant was a lawyer. The case arose on demurrer, so the allegations of the plaintiff’s bill in equity were admitted as true. These allegations were as follows. The defendant and one Corcoran formed a conspiracy to cheat the plaintiff. The defendant falsely told the plaintiff that Corcoran was going to complain to the district attorney that the plaintiff had permitted Corcoran’s wife to use his hotel for purposes of unlawful sexual intercourse. The plaintiff thereupon retained the defendant as his lawyer, and the defendant, pretending to act as the plaintiffs lawyer, told the plaintiff that Corcoran would withdraw his complaint if he were paid $35,000. The defendant advised the plaintiff to comply with this demand, and the plaintiff paid the money. The action was to recover the money. The defendant demurred on the ground that the money was paid pursuant to an illegal contract. The trial judge reversed the point, and the Supreme Judicial Court overruled the demurrer.

The Chief Justice opened his discussion with the statement that the contract between the parties was indeed illegal:

It is a doctrine so well settled as not to be open to discussion that courts will not aid in the enforcement, nor afford relief against the evil consequences, of an illegal or immoral contract. One branch of that general princi-' pie is that a private agreement made in consideration of the suppression of a criminal prosecution will neither be enforced nor abrogated by a court of equity. That doctrine is founded upon the public policy that the course of justice cannot be defeated for the benefit of an individual.
Id. at 350, 137 N.E. at 668-669 (citations omitted).

Nevertheless, the court held that the plaintiff should be permitted to maintain his action. After examining a good many cases, the Chief Justice stated:

An attorney at law has been said to be a public officer. He is an officer of the court sworn to aid in the administration of justice and to act with all good fidelity both to his clients and to the court. The public have a deep and vital interest in his integrity, [citations omitted] It is a matter of profound importance from every point of view that members of the bar be men of probity and rectitude, zealous to maintain relations of utmost honesty with their clients and solicitous to protect them against legal wrong. Unflinching fidelity to their genuine interests is the duty of every attorney to his clients. Public policy can hardly touch matters of more general concern than the maintenance of an untarnished standard of conduct by the attorney at law toward his client. The attorney and client do not deal with each other at arms’ length. The client often is in many respects powerless to resist the influence of his attorney. If that influence be vicious, untoward, criminal, the relation of trust is abused and becomes a source of wrong.

Id. at 354-55, 137 N.E. at 670-671.

The Chief Justice went on to say that on the facts before the court, “The plaintiff and the defendants were not in pari delicto. Whatever may be justly said in condemnation of the acts of the plaintiff is less than is necessary touching the acts of the defendant.” Id.

Of course, Berman may be read as holding no more than that where the parties are not in pari delicto—because the client “is in many respects powerless to resist the influence of his attorney”—recovery will be allowed. We acknowledge that the Chief Justice’s discussion adopts the traditional two-step approach of first considering whether the parties’ fault is equal. Indeed, he quotes Story’s formulation, which we have quoted in beginning our discussion. We think, however, that this would be too narrow a reading of Berman, and that the more accurate reading is that it stands for the proposition that even when the client has acted immorally or illegally, the lawyer may not keep money gotten from the client in violation of the lawyer’s professional obligations. We find this proposition implicit in the Chief Justice’s emphasis on “the maintenance of an untarnished standard of conduct by the attorney at law toward his client.”

Our reading of Berman is supported by the decision of our Supreme Court in Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865 (1959), which quoted extensively from Berman. In Peyton the defendant lawyer accepted $5,000 from the plaintiff on the understanding that he would return the money if he did not succeed in having the plaintiffs brother released from prison by Christmas. The lawyer persuaded the Pardon Board that the brother should be released, but the Governor withheld his signature, and the brother was not released from prison until well after Christmas. On the plaintiffs action to recover the $5,000 from the lawyer’s estate, the estate pleaded that as a contingent fee agreement in a criminal case, the lawyer’s promise to return the money was a contract against public policy, and therefore unenforcible. The Supreme Court agreed that the contract was against public policy. Collecting cases, the Court compared the contract to such contracts as a contract to procure a pardon from the Governor, a contract to procure the passage of an Act of the Legislature by using personal influence with the members, and a contract to have a man discharged from the draft. “But,” the Court said, “the law would fall short if it only left the parties where it found them.” Id., 398 Pa. at 92, 156 A.2d at 868. Quoting Berman, the Court concluded “that despite the essential invalidity of the contingent fee agreement the law should be allowed to favor the plaintiffs because of the circumstances.” Id., 398 Pa. at 93, 156 A.2d at 868-869. The Court thus read Berman as we do. For the lawyer in Peyton was not guilty of any fraud or extortion. Indeed, he “achieved] rather spectacular results” for his client. Id., 398 Pa. at 94, 156 A.2d at 369. On a traditional in pari delicto analysis, it would seem that the client’s fault in seeking the lawyer’s services might easily be found equal to the lawyer’s fault. And yet the Court held that the lawyer’s estate had to return the fee.

We therefore hold that when a lawyer has by immoral or illegal conduct violated his professional obligations to his client, an action by the client to recover the lawyer’s fee will not be barred on the lawyer’s plea that the client also engaged in immoral or illegal conduct. The conclusion follows that if appellants can prove the allegations of their complaint, they may recover the fees they paid appellees.

We are aware that this conclusion opens us to a charge of inconsistency: while saying that we will not aid appellants, we yet permit them to recover the fees they paid appellees. We believe, however, that we have been as consistent as possible. On the allegations of the complaint, both appellants and appellees have acted immorally and illegally. We wish to aid none of them, and we have come as close as we can to achieving that result. While appellants will have been aided if they recover the fees they paid appellees, this aid will be very limited. For appellants may recover only the fees they paid; no lost profits or any other sort of damages—whether for legal malpractice, infliction of emotional distress, deceit, or anything else—may be recovered.

The order of the lower court is modified to provide that appellants’ complaint is dismissed, except as to so much of Count IV as seeks to recover legal fees paid appellees. As so modified, the order is affirmed.

      . Appellants have made various factual statements in their brief that go beyond the allegations of their complaint. See, e.g., Brief for Appellants at 12, 13, 14, 39, 42-43, and see Brief for Appellees at 11—12. This is improper, DeSantis v. Swigart, supra ("In ruling on a demurrer, the court may consider only such matters as arise out of the complaint itself; it cannot supply a fact missing in the complaint.”); Coccia v. Coccia, 285 Pa.Super. 259, 427 A.2d 212 (1981) (ibid.); Duffee v. Judson, 251 Pa.Super. 406, 380 A.2d 843 (1977) (ibid.), and we have ignored the statements. Appellees filed with the lower court, and have filed with us, see Supplemental Reproduced Record, portions of the criminal proceedings against appellants in the United States District Court for the Eastern District of Pennsylvania. The lower court took judicial notice of "such matters as the pleas of guilty to certain counts of the indictment and the judgment of conviction of the court." Slip op. at 6 n. 4. We do not take judicial notice of such matters, for it is unnecessary, as the lower court also observed, id., to look beyond the allegations of the complaint.

      . The doctrine of in pari delicto was first applied by Lord Mansfield in Smith v. Bromley, 2 Doug. 606n., 99 Eng.Rep. 441n. (N.P.1760). See generally Wade, Restitution of Benefits Acquired Through Illegal Transactions,” 95 U.Pa.L.Rev. 261 (1947); Grodecki, "In Pari Delicto Potior Est Conditio Defendentis,” 71 L.Q.Rev. 254 (1955). It has been argued that the doctrine has such diverse purposes as preserving the dignity of the courts, expressing a moral principle, and enforcing public policy. See Grodecki, supra at 265-273. Statements comparable to Lord Mansfield’s may be found in Bank of the United States v. Owen, 2 Peter (27 U.S.) 527, 538, 7 L.Ed. 508 (1829) ("No court of justice can in its nature be made the handmaid of iniquity ...” or “become auxiliary to the consummation of violations of law.”); Seagirt Realty Corp. v. Chazanof, 13 N.Y.2d 282, 287, 246 N.Y.S.2d 613, 617, 196 N.E.2d 254, 257 (1963) (dissent) ("No right of action can spring from an illegal contract and ... courts do not sit to give protection to cheaters or to act ‘as paymaster of the wages of crime.’ ’’

      . Story’s qualification itself needs qualification, for duress may not be enough to defeat a plea of in pari delicto. In Union Exchange National Bank of New York v. Joseph, 231 N.Y. 250, 131 N.E. 905 (1921), the plaintiff sued on a promissory note that the defendant had given under duress arising from the plaintiff's threat to prosecute the defendant’s bankrupt brother-in-law for criminal misappropriation of the plaintiff's funds. Cardozo, J., said: "We think the defendant, if a victim of duress, was at the same time a' wrongdoer when he stifled a charge of crime.” Id. at 252. Judge Cardozo continued: "We are urged in apportioning the blame to allot a heavier weight of guilt to the plaintiff who exacted than to the defendant who complied. The same argument was pressed in Haynes v. Rudd (102 N.Y. 372, 7 N.E. 287, reversing 30 Hun. 237). We found no inequality sufficient to set the law in motion at the suit of knowing wrongdoers to undo a known wrong (102 N.Y. at p. 377, 7 N.E. 287). They had chosen to put private welfare above duty to the state. The state would not concern itself with the readjustment of their burdens unless for some better reason than the fact that indifference to duty had followed hard upon temptation. Excuse would seldom fail if temptation could supply it.” Id. 231 N.Y. at 254, 131 N.E. 905.

      . It is arguable that since the doctrine of in pari delicto is itself founded upon considerations of public policy, rather than upon logical deductions from established rules of law, the same criticism is equally applicable to it. Wade, supra at 297. We needn’t, however, get into this argument.

      . See also American Society of Mechanical Engineers, Inc. v. Hydrolevel Corporation, 456 U.S. 556, 568 n. 6, 102 S.Ct. 1935, 1945, n. 6, 72 L.Ed.2d 330, 341 n. 6 (1982) (approving the refusal of Perma Life Mufflers, supra, "to apply the ancient defense of in pari delicto in antitrust cases” inasmuch as “Victorian common law does not define the limits of the antitrust private action.”); E.F. Hutton v. Berns, 682 F.2d 173, 176 n. 6 (8th Cir.1982) (Collecting securities law violation cases which either allow or deny the in pari delicto defense). For additional cases in accord with Tarasi, see, e.g., Lawler v. Gilliam, 569 F.2d 1283 (4th Cir.1978); Haynes v. Anderson and Stridwick, Inc., 508 F.Supp. 1303 (1981); Sostrin v. Altschul, 492 F.Supp. 486 (N.D.Ill.E.D.1980); Federal Dep. Ins. Corp. v. Aroneck, 509 F.Supp. 553 (D.So.Car.1979).

      . Cf. Grodecki, supra at 265.
      [T]he words in pari delicto do not in law mean what they appear to say and are given a technical meaning. A layman might well think that the court, after an inquiry into the respective conduct of the two parties, rewards the less guilty. In fact, it allows recovery where the plaintiff is guilty of no delictum at all, either because he was induced to enter into the bargain by oppression, duress or fraud of the other party or because he belonged to a class protected by a statute or, finally, because he was ignorant of a fact which rendered the contract illegal. The courts wisely refrain from weighing the respective merits and demerits of the parties and from making their decision depend upon the result. The analysis involved would be far too subtle, the result often far too arbitrary.

      . For other cases in which the court has relied, directly or indirectly, on Lord Mansfield’s principle, without taking the two-step approach taken in Tarasi, see Davis v. Pennzoil Company, 438 Pa. 194, 209, 264 A.2d 597 (1970); Dippel v. Brunozzi, 365 Pa. 264, 267, 74 A.2d 112, 114 (1950); Halkias v. Liberty Laundry Co., 361 Pa. 475, 479, 64 A.2d 800, 802 (1949); Tucker v. Binenstock, 310 Pa. 254, 259, 165 A. 247, 248 (1933); Ad-Lee Co. v. Meyer, 294 Pa. 498, 502, 144 A. 540, 541-542 (1928) (quoting Holman v. Johnson and collecting Pennsylvania cases); Kuhn v. Buhl, 251 Pa. 348, 371, 96 A. 977, 984 (1916); Pittsburg v. Goshorn, 230 Pa. 212, 227, 79 A. 505, 510 (1911). Gramby v. Cobb, 282 Pa.Super. 183, 189, 422 A.2d 889, 892 (1980); Shafer v. A.I.I.S., Inc., 285 Pa.Super. 490, 494, 428 A.2d 152 (1981).

      . Had we relied upon, instead of deciding to avoid, the doctrine of in pari delicto, this question might not arise. The full maxim, in pari delicto potior est conditio defendentis, means that where the plaintiff and the defendant are in equal fault, the defendant’s position is stronger. And the reason it is stronger, it has been said, is because the law requires those who seek relief to “draw their justice from pure fountains.” Austin’s Adm’x v. Winston’s Ex’x, 11 Va. 32, 48 (1806).

      . It might be suggested that appellees, unlike appellants, have not brought any "action,” so that it may not be said that they "ground[) [an] action upon an immoral or illegal act.” But appellees have filed preliminary objections, asking that appellants’ complaint be dismissed. They therefore do seek the court’s aid. It is of no importance that they seek it, not to make a recovery, as appellants do, but to defeat a recovery. The applicability of the principle that the court will not aid an action grounded upon an immoral or illegal act should not turn upon whether the aid is sought by complaint or by preliminary objections.

      . And see Ford v. Harrington, 16 N.Y. 285, 293-294 (1857) ("It would be a reproach to our judicial tribunals should they allow their officers [ ] to acquire property by a prostitution of the trust [ ] confided to them, and then to interpose the fraud committed pursuant to their advice as such officers, as a shield to protect them in the possession and enjoyment of that property.”). See also Schermerhorn v. De Chambrun, 64 F. 195 (2nd Cir.1894).

      . Others have struggled with the problem of restitution in illegal contract cases. See generally Wade, supra at 301-305. Wigmore would allow “the plaintiff to recover the full amount of the enrichment but to deduct from that amount a sum to be set by the court and hold this sum for some other purpose.” Id. at 304, citing Wigmore, “A summary of Quasi-Contracts,” 25 Am.L.Rev. 695, 712, n. (k) (1891). St. Thomas Aquinas had a similar solution. He argued that “the giver deserves to lose what he gave, wherefore restitution should not be made to him; and, since the receiver acted against the law in receiving, he must not retain the price but must use it for some pious object.” Summa Theologica, II—II Q. 62, Art. 5, quoted in Grodecki, supra at 267. However desirable these proposals may be, we are not in a position to implement them.