author: CERCONE, Judge:

text:
    595 A.2d 1258
    COMMONWEALTH of Pennsylvania v. William R. FRANK, Appellant.
    Superior Court of Pennsylvania.
    Argued May 16, 1991.
    Filed Aug. 13, 1991.

      Frank G. Verterano, New Castle, for appellant.
    Annette Hutchison, Asst. Dist. Atty., New Castle, for the Com., appellee.
    Before CAVANAUGH, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Lawrence County on October 19, 1990. We affirm.

Appellant was charged with one count of possession of a controlled substance and one count of possession of drug paraphernalia. Before trial, appellant filed an omnibus pretrial motion to suppress evidence of crack cocaine found on his person at the time of arrest. Appellant argued that the police were unjustified in stopping his automobile and that the search of his person was excessive. The suppression judge denied this motion on July 13,1989 and appellant proceeded to trial. After a jury found appellant guilty on the above-referenced charges, post-verdict motions were filed and denied. This timely appeal followed. Appellant raises three issues for our review:

1. did the lower court commit legal error in concluding that the officers, prior to their seizure, search and arrest of the defendant, had probable cause to believe that he had committed a crime in their presence;
2. were the officers possessed of sufficient articulated facts to give rise to a reasonable belief that criminal activity was afoot;
3. assuming, arguendo, that the officers had a basis for an investigatory stop, did their conduct exceed the intrusion on personal liberty allowable in such circumstances?

In reviewing an order denying a motion to suppress evidence we must determine whether the factual findings of the lower court are supported by the evidence of record. Commonwealth v. Espada, 364 Pa.Super. 604, 607, 528 A.2d 968, 969 (1987). In making this determination, we may only consider the evidence of the Commonwealth witnesses and so much of the witnesses for the defendant as, fairly read in the context of the record as a whole, remains uncontradicted. Id. If the evidence supports the findings of the lower court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are in error. Id.

In light of this standard of review and our independent inspection of the record, we adopt the following findings of fact as enunciated by the suppression court:

On June 15, 1989, Trooper William Chiappini of the Pennsylvania State Police and Officer Thomas Macri of the New Castle Police Department were engaged in an undercover surveillance operation involving the Westview Terrace housing development in New Castle, Pennsylvania. The Westview Terrace housing development is located in an area of known drug activity.
At approximately 12:24 p.m., Trooper Chiappini observed the [appellant’s] vehicle, a white 1978 Jaguar, being operated onto Sankey Street from North Street in the city of New Castle. Both Sankey and North Streets are generally situated within the Westview Terrace area of the city. The officers then observed the [appellant], a middle-aged, white male to be the driver of the vehicle.
After turning onto Sankey Street, the [appellant] was signaled to stop his vehicle by one William Payne, a man whom Trooper Chiappini knew to be a crack cocaine dealer. Payne entered the passenger side of the [appellant’s] vehicle and both Payne and the [appellant] then proceeded to a parking lot located adjacent to Sankey Street in the Westview Terrace housing development. There, three males approached the driver’s side of the [appellant’s] vehicle.
From their position, the officers observed the other males and the [appellant] engage in a conversation and then proceed to conduct an exchange. They could not, however, identify the items which were transferred between the parties.
Remaining in the parking lot area of Westview Terrace for approximately one minute, the [appellant] and Payne left in the [appellant’s] vehicle and proceeded onto Sankey Street. They then drove to the area where Payne had previously entered the [appellant’s] vehicle and Payne then proceeded to exit the [appellant’s] vehicle. The [appellant] then proceeded to West Washington Street.
At this juncture in the scenario, the officers began to follow the [appellant] in an unmarked police vehicle. In an attempt to stop the [appellant], Trooper Chiappini drove his vehicle to the driver’s side of the Frank vehicle, and Officer Macri (who was seated on the passenger’s side of the police vehicle) then lowered the side window of the vehicle and exhibited his police badge to the [appellant]. The [appellant] thereupon operated his vehicle over to the side of the road, but then quickly began to drive away from the scene.
The officers pursued the [appellant] and subsequently succeeded in stopping his vehicle. Chiappini and Macri then exited the police vehicle, and with their weapons drawn, approached the [appellant’s] vehicle. Trooper Chiappini opened the driver’s side door of the [appellant’s] vehicle and ordered the [appellant] to exit his vehicle. The [appellant] initially declined to comply with the request of Trooper Chiappini because of the fortuitous arrival of a television camera crew at the scene. Trooper Chiappini directed the camera crew to leave the area and the camera crew complied with his request. Officer Macri then pulled the [appellant] from this vehicle. Officer Macri immediately arrested the [appellant] and proceeded to cuff his hands behind his back.
The [appellant] was placed against the hood of the police vehicle and his person was then searched by Trooper Chiappini. The [appellant] voluntarily told the officer where the crack cocaine had been placed in his clothing. Trooper Chiappini then found a rock of crack cocaine and a glass pipe stem in the left, rear pocket of the [appellant’s] trousers. The [appellant] was then given his Miranda rights, and placed inside a city police vehicle which had arrived at the scene.

Suppression Court opinion 3/15/90 at 1-4.

Appellant argues that the trial court erred in failing to suppress the evidence of the crack cocaine found when the police officer searched him. Appellant argues that the police officers had no probable cause to arrest or reasonable suspicion to stop appellant to investigate under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and that the subsequent search of appellant’s person exceeded any search permitted by Terry, supra. However, because we find that probable cause to arrest does exist, we only address appellant’s first argument.

In order for a warrantless search to be lawful it must have been made pursuant to a lawful arrest. Commonwealth v. Santiago, 220 Pa.Super. 111, 114, 283 A.2d 709, 711 (1971). An arrest occurs with any act that indicates an intention to take a person into custody and subject him to actual control and will of the person making the arrest. Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963). In this case, the police officers initially handcuffed appellant when they apprehended him. At that point an arrest was made because appellant reasonably believed that he was not free to leave, and, actually was physically restrained by the use of the handcuffs. Moreover, it was after appellant had been arrested that the warrantless search of his person ensued. Therefore, it is incumbent on us to determine whether the police, at that time, had probable cause to arrest appellant.

The established test for determining whether an officer had sufficient probable cause to legally justify a warrant-less arrest involves looking at the facts and circumstances confronting the officer at the time of arrest. Commonwealth v. Chase, 394 Pa.Super. 168, 171, 575 A.2d 574, 575 (1990).
A police officer may arrest without a warrant where there is probable cause to believe that a felony has been committed and that the arrestee is the felon. Probable cause exists where the facts and circumstances within the knowledge of the officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the arrestee has committed the offense. Id., citing Commonwealth v. Travaglia, 502 Pa. 474, 484, 467 A.2d 288, 292 (1983). Furthermore, the standard of probable cause must be applied to the totality of the circumstances facing the police. Thus, “when we examine a particular situation to determine if probable cause exists, we consider all factors and their total effect, and do not concentrate on each individual element____ We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might____ Finally, we must remember that in dealing with questions of probable cause, we are not dealing in certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond a reasonable doubt’ standard which we apply in determining guilt or innocence at trial.” Chase, supra, 394 Pa.Super. at 172, 575 A.2d at 575-76 (emphasis in original).

Applying our standard of review to this case, we find sufficient probable cause to arrest appellant. Initially, we note that Officers Chiappini and Macri were surveying an area with a high concentration of drug activity. During this period of surveillance, they observed appellant drive into the area and stop for a known drug dealer. The drug dealer entered the auto and appellant drove to another area where they met three other men. Appellant exchanged unknown materials with one of the men and then drove off. He subsequently drove the drug dealer back to the place where he had entered and appellant drove off. The arresting officers followed appellant and later pulled alongside his automobile and motioned him to the side of the road.

At this point, we find that the arresting officers had reasonable cause to stop appellant and investigate the episode at Westview Terrace. A police officer must rely on specific and articulable facts which, if taken together with rational inferences from those facts, reasonably warrant a belief that criminal activity is afoot before an initial investigatory stop can be made. Commonwealth v. Martinez, 403 Pa.Super. 125, 127, 588 A.2d 513, 514 (1991). Officers Chiappini and Macri were justified in suspecting that appellant engaged in a drug deal with a known drug dealer and the three other unknown men. In particular, we note that they witnessed appellant enter an area known for drug dealing, allow a known drug dealer to enter his car, and then proceed to make a quick exchange with the other individuals. While the officers did not observe the exact items being exchanged, common sense and the experience of the police officers dictates that the transaction was in all likelihood drug related. On that basis, the officers had reasonable suspicion to stop appellant and investigate the incident further.

Our analysis, however, must go one step further. For while there was reasonable suspicion to conduct a Terry stop, in order to effectuate an arrest, that suspicion must rise to the level of probable cause. After the police motioned appellant to pull off the road, he complied. When the police left their vehicle and began to approach appellant’s automobile, appellant fled in his vehicle. In response, the police radioed for help, subsequently caught appellant and placed him in handcuffs.

Flight, in and of itself, cannot constitute probable cause to arrest. Martinez, supra, 403 Pa.Super. at 127, 588 A.2d at 514. It is equally true, however, that flight, coupled with additional facts which point to a suspect’s guilt may establish probable cause to arrest. Commonwealth v. Woodson, 342 Pa.Super. 392, 395, 493 A.2d 78, 80 (1985). Here, the officers observed a potential drug transaction and attempted to investigate further. However, in exacting the Terry stop, they were met with appellant’s attempt to abscond. Such conduct was sufficient to find probable cause to arrest.

Various jurisdictions have found probable cause to arrest in similar situations. In State v. Bumpus, — Iowa -, 459 N.W.2d 619 (1990), the supreme court of Iowa arrived at a similar result when faced with a comparable set of facts. In that case, Des Moines police officers were patrolling near a lounge which was a notorious site for drug transactions. The officers recognized two men who were making an exchange of items which they could not see. Based on their past experience with the precise locations, the nature of the actions of the suspects, the notoriety of the lounge and the lateness of the hour, the officers attempted to investigate. Id. at ——, 459 N.W.2d at 621. The appellant and his accomplice then fled. The officers pursued them further. One of the officers seized appellant and arrested him for interference with official acts. Id.

The, Iowa Supreme Court found probable cause existed to arrest the appellant in Bumpus and therefore it was proper to conduct a search incident to the arrest. The Iowa court conceded that while none of the factors cited for the arrest, standing alone, would constitute probable cause, the several factors gave rise to probable cause when part of a pattern which indicates unlawful activity. Id. at -, 459 N.W.2d at 624. The Iowa court also held that once a police officer has the requisite suspicion to make a Terry stop, and the suspect takes flight when approached by the officers, the preexisting suspicion may rise to the requisite Fourth Amendment level of probable cause, thereby justifying the arrest of the suspect. We find this rationale compelling.

Instantly, Officer Chiappini testified that the Westview Terrace housing development was an area known for drug related activity. The officers observed appellant associate with a known drug dealer and subsequently enter into an exchange with unknown individuals, thus indicating behavior consistent with drug transactions. The possession of reasonable suspicion sufficient to investigate, coupled with appellant’s subsequent flight elevated their suspicion to probable cause to arrest, consistent with the Fourth amendment ,of the, United States Constitution.

Appellant directs us to two decisions of this court where probable cause to arrest did not exist. In Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980), a police officer, testified that he and his partner drove to an area in Pittsburgh to investigate an anonymous tip that several people were selling illicit drugs in that location. The officers had previously made narcotics arrests in that area. Id., 280 Pa.Superior Ct. at 208, 421 A.2d at 685. The police officers next observed two unknown individuals making an exchange. Based on this information, the officers proceeded to' investigate the incident and the appellant, Hunt, fled. One of the officers began to chase him. When he caught appellant, he grabbed him by the throat until appellant spit out six packets of heroin. Id., 280 Pa.Superior Ct. at 209, 421 A.2d at 685-86.

A panel of this court determined that the police lacked probable cause to arrest Hunt. The Hunt panel relied upon this court’s holding in Commonwealth v. Santiago, supra, finding that while the officer was experienced in narcotics detection, his observation of two unknown people exchanging unknown things was insufficient to establish probable cause. Hunt, supra, 280 Pa.Super. at 210, 421 A.2d at 686.

In Santiago, supra, this court found that probable cause did not exist to arrest appellant. In that case, the appellant, Santiago, was seen by a police officer carrying two small packets. The police officer knew that the appellant had been arrested previously on narcotics charges. When the officer called the appellant and told him to come over to the patrol car, appellant turned and ran. The police officer chased him and caught him as he was climbing over a fence. As the officer pulled him off, a silver foiled packet containing heroin fell from his hand. The officer subsequently arrested the appellant. Santiago, supra, 220 Pa.Super. at 113, 283 A.2d at 710.

The Santiago court found no probable cause to arrest because the police officer had no reasonable suspicion that the appellant was engaged in criminal activity. As stated:

The fact that a man, who had never been found guilty of a narcotics offense, is walking on a public street in broad daylight with two small plastic packets in his hand would not lead to the conclusion that he was in possession of narcotics. Even to an experienced officer, such circumstances would not be an indication that a crime was being committed. Any suspicions which would arise from these facts amount to a mere surmise.

Id., 220 Pa.Superior Ct. at 114, 283 A.2d at 711.

We find these cases, however, inapposite to the instant case. Hunt, supra, lacks one essential fact which we find present here. That case involved the arrest of an appellant with no individualized suspicion that he or his cohort were involved in drug related activity. In the present case, the police officers observed a known drug dealer enter appellant's automobile which he then drove to meet three unknown men to conduct an exchange. In Santiago, supra, the police merely observed the appellant walking along a public way carrying packets containing unknown items. In the present case, appellant was present in an area known for drug trafficking, was seen associating with a known drug dealer and was conducting an exchange indicative of a drug transaction.

Moreover, this court has taken notice of the pervasiveness and dangerousness of drug related activity within this Commonwealth in recent years. Cf. Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991) (court takes judicial notice of the fact that drug dealers are likely to be armed and dangerous). We cannot expect that our police officers will stand by and observe what in all likelihood is a drug transaction, and be powerless to eradicate the illegal activity. In other words, we cannot deprive police officers the use of their common sense, experience and personal observations to properly assess and evaluate situations that give rise to reasonable suspicion to investigate, and probable cause to arrest. We must caution though that we find sufficient probable cause to arrest based only on the totality of the circumstances presented here. Since sufficient probable cause exists, the police were entitled to conduct a search of appellant because of the always present danger in an arrest situation that the arrestee may seek to use a weapon or to conceal or destroy evidence. Commonwealth v. Tann, 500 Pa. 593, 598 n. 10, 459 A.2d 322, 325 n. 10 (1983). Accordingly, judgment of sentence is affirmed.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(16).

      . Id. § 780-113(a)(32).

      . In fact, the Commonwealth concedes in its brief that the police conduct in this case constituted an arrest.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    595 A.2d 1264
    C.J. BETTERS CORPORATION, Appellant, v. MID SOUTH AVIATION SERVICES, INC., d/b/a Lakeland Air Center and R.E. Shackelford, Appellees. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1991.
    Filed Aug. 20, 1991.

      Joseph T. Moran, Pittsburgh, for appellant.
    Mark F. Haak, Pittsburgh, for Mid South, appellee (at 818) and for Shackelford, appellee (at 1679).
    Before TAMILIA, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

These consolidated appeals are from the orders of the Court of Common Pleas of Beaver County which dismissed the assumpsit complaint against appellees, Mid-South Aviation Services and R.E. Shackelford, for want of in person-am jurisdiction. We reverse and remand for trial.

The record reveals that appellant, C.J. Betters Corporation, is a Pennsylvania Corporation with its principal place of business in Aliquippa, Beaver County, Pennsylvania. Mid-South is a Florida corporation with its principal place of business in Lakeland, Florida. Mid-South is in the business of selling aviation fuel, performing maintenance on aircraft and brokering aircraft. R.E. Shackelford is a resident of North Carolina and original owner of the 1972 Cessna Citation airplane in question.

In 1988, Betters initially contacted Mid-South concerning a turbine driven propeller aircraft in response to one of Mid-South’s advertisements. Mid-South places advertisements similar to newspaper “want-ads”, in three separate national and international aviation trade journals to facilitate its brokerage business. After discussions with Mid-South, Betters determined a jet, rather than a propeller driven plane, would better suit its needs. Mid-South then located the Cessna Citation owned by R.E. Shackelford and informed Betters. The Cessna Citation was then flown to Mid-South’s headquarters in Lakeland, Florida.

Representatives from’ Betters then travelled to Mid-South’s headquarters to inspect the aircraft. The parties discussed various repairs and alterations which were to be performed prior to Betters’ purchase of the aircraft. All of the “face-to-face” negotiations took place in Florida, and additional negotiations took place via letter and telephone correspondence between the parties’ Florida and Pennsylvania headquarters.

On or about January 24, 1989, Mid-South’s Chairman of the Board, Thomas S. Petcoff, executed the subject contract for the sale of the plane at Mid-South’s Florida location. The contract was then sent to Aliquippa, Pennsylvania where it was executed by C.J. Betters, President of C.J. Betters Corporation. No Mid-South representatives travelled to Pennsylvania prior to delivery of the aircraft.

The sales contract provided Betters would pay Mid-South $440,000.00, for the aircraft, which included $55,000.00, for repairs and alterations to be made prior to delivery. The agreement specifically provided that Mid-South was to deliver the aircraft to the Beaver County, Pennsylvania, Airport, where final inspection was to be performed by Betters prior to acceptance. Over the next several months after execution of the sales agreement, Mid-South and Betters were in close contact via telephone and written communications, regarding completion of the repairs and alterations required by the contract. On or about April 5, 1989, Betters accepted delivery of the Cessna Citation at the Beaver County Airport. Simultaneously, Betters directed the escrow agent to release the balance of the funds due to R.E. Shackelford.

Subsequently, on April 13, 1989, the aircraft’s right engine malfunctioned during flight necessitating an emergency landing in Lancaster, Pennsylvania. Mid-South was immediately notified of the problem. However, the parties were unable to negotiate an amicable settlement, and Betters filed suit against Mid-South and R.E. Shackelford in the Court of Common Pleas of Beaver County seeking damages for the cost of repairs and loss of use in the total amount of $181,740.50.

Mid-South and Shackelford filed preliminary objections alleging lack of in personam jurisdiction in Pennsylvania. The lower court relying on Dommel’s Hotel, Inc. v. East-West Helicopter, Inc., 580 F.Supp. 15 (E.D.Pa.1984), agreed and dismissed the cases against Mid-South and Shackelford for want of jurisdiction. This appeal by Betters followed.

“[W]hen preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt.” Barber v. Pittsburgh Corning Corp., 317 Pa.Super. 285, 302-03, 464 A.2d 323, 332 (1983), cert. denied 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 346 (1984), citing Botwinck v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965). “Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party.” Barber v. Pittsburgh Corning Corp., supra. ...
A court may exercise in personam jurisdiction over a nonresident if (1) jurisdiction is conferred by the state long-arm statute and (2) the exercise of jurisdiction under the statute meets constitutional standards of due process. Eastern Continuous Forms v. Island Business Forms, 355 Pa.Super. 352, 513 A.2d 466 (1986). Under Pennsylvania’s long-arm statute, the Pennsylvania court may exercise jurisdiction over nonresident defendants “to the fullest extent allowed under the Constitution of the United States” and jurisdiction may be based “on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” 42 Pa.C.S.A. § 5322(b). See Skinner v. Flymo, 351 Pa.Super. 234, 240, 505 A.2d 616, 619 (1986).
“The Due Process Clause of the Fourteenth Amendment to the United States Constitution permits personal jurisdiction over a defendant in any State with which the defendant has ‘certain minimum contacts ... such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ Milliken v. Meyer, 311 U.S. 457, 463, [61 S.Ct. 339, 342, 85 L.Ed. 278 (1940) ].’ ” Eastern Continuous Business Forms, supra, 355 Pa.Super. at 354-55, 513 A.2d at 467, quoting Calder v. Jones, 465 U.S. 783, 787, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804, 810 (1984). In minimum contacts analysis, “talismanic jurisdictional formulas” are rejected and the facts of a each case are weighed in determining whether personal jurisdiction will comport with fair play and substantial justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86, 105 S.Ct. 2174, 2189, 85 L.Ed.2d 528, 549 (1985), quoting Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696-97, 56 L.Ed.2d 132, 141 (1978), reh’g denied 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978)....
While an individual’s contract with an out-of-state party cannot alone establish sufficient contacts with the forum state, negotiations prior to the contract, its contemplated future consequences, the terms of the contract and the parties’ actual course of dealing must be evaluated in determining whether the defendant “purposely availed] itself of the privilege of conducting activities within the forum State.” Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 474-75, 105 S.Ct. at 2183, 85 L.Ed.2d at 542 & 545, quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958)....[]
Once it has been determined that the defendant has purposely established minimum contacts with the forum state, those contacts may be considered in light of other factors to determine whether the exercise of personal jurisdiction will comport with fair play and substantial justice. Burger King v. Rudzewicz, supra, 471 U.S. at 476-77, 105 S.Ct. at 2184, 85 L.Ed.2d at 612. Those factors include the burden on the defendant, the forum state’s interest in adjudicating the dispute; the plaintiff’s interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the “several States in furthering fundamental substantive social policies.” Id.

Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa.Super. 103, 104-08, 568 A.2d 215, 216-217 (1989). See also United Farm Bur. Mut. Ins. v. U.S. Fid. & Guar., 501 Pa. 646, 654-59, 462 A.2d 1300, 1304-1306 (1983); Skinner v. Flymo, Inc., 505 A.2d at 619-621.

Keeping the aforementioned principles in mind, we now address the question of whether, viewing the evidence in a light most favorable to Betters, the non-moving party, the lower court erred in dismissing Mid-South and Shackelford for lack of personal jurisdiction in Pennsylvania. We find that the lower court erred in dismissing the actions against Mid-South and R.E. Shackelford. Initially, we note that it is undisputed that jurisdiction is conferred by the Pennsylvania long-arm statute, 42 Pa.C.S.A. § 5322(a)(1) and (3). Consequently, we need only address the question of whether the exercise of jurisdiction comports with the standards of due process. Kenneth H. Oaks, Ltd., 390 Pa.Superior Ct. 568 A.2d at 216.

Undoubtedly, an out-of-state party’s contract with a forum resident alone is insufficient to establish minimum contacts necessary to satisfy the mandates of due process. Burger King v. Rudzewicz, 471 U.S. at 478, 105 S.Ct. at 2185. However, presently, the contract for the sale of the airplane itself was not the only “contact” with Pennsylvania. Moreover, even a single act can support jurisdiction, so long as it creates a “substantial connection” with the forum, provided the nature, quality and circumstances of the act’s commission create more than a mere attenuated affiliation with the forum. Burger King v. Rudzewicz, 471 U.S. at 475 n. 18, 105 S.Ct. at 2184 n. 18, citing McGee v. International Life Ins Co., 355 U.S. 220 at 223, 78 S.Ct. 199 at 201, 2 L.Ed.2d 223 (1957), International Shoe Co. v. State of Washington, 326 U.S. 310 at 318, 66 S.Ct. 154 at 159, 90 L.Ed. 95 (1945), and World-Wide Volkswagen, 444 U.S. at 299, 100 S.Ct. at 568.

Instantly, Mid-South admits several “contacts” with Pennsylvania: 1) Mid-South entered into a contractual relationship with a resident corporation of Pennsylvania; 2) Betters finally executed the subject contract at its headquarters in Pennsylvania; 3) Pursuant to the contract, Mid-South delivered the aircraft to Betters for final inspection and acceptance at the Beaver County Airport in Pennsylvania.

To those contacts with Pennsylvania, we note several additional contacts with Pennsylvania: 1) Mid-South advertises its aircraft brokerage business in aviation trade journals which are distributed nation-wide and which reached Betters in Pennsylvania; 2) During the course of contract negotiation and after entering into the contract, but prior to delivery, Mid-South communicated extensively via letter and telephone with representatives of Betters at their Pennsylvania headquarters; and 3) The aircraft malfunction from which this contract action arises occurred in Pennsylvania.

Based on the parties’ extensive negotiations and communications, Mid-South knew that the aircraft would be used by the Pennsylvania purchaser in Pennsylvania. Significantly, the contract provided that Mid-South deliver the aircraft to Pennsylvania for final inspection and acceptance. Under the present facts, Mid-South’s single “act” of selling the Cessna Citation to Betters does create a substantial connection with this forum. Mid-South “purposely availed” itself of the privilege of conducting business in Pennsylvania. See Kingsley & Keith, 500 Pa. at 373, 456 A.2d at 1334-1335 (Canadian carrier purposely availed itself of privilege of conducting business in Pennsylvania where it entered into contract to transport goods from Pennsylvania to Canada and, in fact, entered the Commonwealth to perform). This cause of action for, inter alia, breach of warranty certainly arose from Mid-South’s forum related activity, i.e., the sale of the aircraft to a Pennsylvania resident, requiring delivery of the plane to Pennsylvania. Further, the magnitude of this transaction, a sale of an aircraft for $440,000.00 to a Pennsylvania resident corporation, also supports this holding that Mid-South, if sued, should have reasonably anticipated being sued in Pennsylvania.

This exercise of jurisdiction comports with traditional notions of fair play and substantial justice. The burden of litigating in a foreign jurisdiction placed upon Mid-South is not inordinate. Since the aircraft malfunction occurred in Pennsylvania, the aircraft was repaired in Pennsylvania and the aircraft continues to be located in Pennsylvania, many of the key witnesses are from Pennsylvania. In addition, Pennsylvania has an legitimate public interest in policing its air traffic, and thus, has a strong interest in resolving this dispute. Cf., Kingsley & Keith, 500 Pa. at 373, 456 A.2d at 1334-1335 (“The state’s interest in assuring that a contract for the safe transportation of Pennsylvania goods is properly performed must be evident. Not only does Pennsylvania have an interest in highway safety ... ”).

The lower court mistakenly relied upon Dommel’s Hotel, Inc. v. East West Helicopter, Inc., 580 F.Supp. 15 (E.D.Pa.1984), in deciding to dismiss the complaints against Mid-South and R.E. Shackelford. In Dommel’s Hotel, supra, a Pennsylvania purchaser: 1) contacted a Ohio seller regarding purchase of a helicopter; 2) visited the Ohio seller’s headquarters to inspect the helicopter; 3) negotiated the terms of purchase in Ohio; 4) executed the sales agreement in Ohio; and 5) picked up the helicopter in Ohio. Significantly, the Ohio seller never conducted or solicited business in Pennsylvania. The opinion in Dommel’s Hotel, supra, noted that the Ohio seller’s only contact with the forum was the knowledge that the helicopter was being purchased for use primarily in Pennsylvania and held that contact alone was insufficient to support in personam jurisdiction. 580 F.Supp. at 18-19. Basically, the seller’s contacts with the forum required for the exercise of jurisdiction can not be established by the unilateral activities of the purchaser. Dommel’s Hotel, 580 F.Supp. at 19, citing Hanson v. Denckla, 357 U.S. at 253, 78 S.Ct. at 1240. Instantly, however, Mid-South’s contacts with the forum are far more extensive that those of the defendant in Dommel’s Hotel, supra. Most significant is the fact that the contract in question provided that Mid-South must enter Pennsylvania to deliver the aircraft. Thus, it is not the unilateral actions of Betters alone which confer jurisdiction.

We find the analogous case of Furnival Machinery Co. v. Joseph T. Barta Associates, Inc., 470 F.Supp. 735 (E.D.Pa.1979), instructive. Therein, a New York corporation participated in a three party transaction whereby it delivered an airplane to an Illinois corporation knowing that the latter would transfer the plane to a Pennsylvania corporation once it had completed “cosmetic” refurbishing. The New York corporation also knew that the full purchase price had been paid to it by the Pennsylvania corporation. On those facts, the District Court held that personal jurisdiction was proper under Pennsylvania’s then existing long-arm statute. Furnival Machinery, 470 F.Supp. at 739. Similarly, Mid-South knew that the purchaser was a Pennsylvania resident, delivered the plane to Pennsylvania and accepted the full purchase price from Betters, a Pennsylvania corporation.

We also find that the exercise of in personam jurisdiction by Pennsylvania courts over R.E. Shackelford is proper. As found by the court below, Mid-South was acting as Shackelford’s agent. See Opinion and Order, Steege, J., September 25, 1990, p. 1-2. Shackelford admits he paid Mid-South $20,000.00 for its role in the sale of the airplane. Under 42 Pa.C.S.A. § 5322, the long arm statute provides that jurisdiction over a person may be based upon the actions of his agent. In this case, Mid-South, acting as Shackelford’s agent, established the requisite contacts with the forum state necessary to subject Shackelford to in personam jurisdiction in Pennsylvania.

Moreover, Shackelford’s own contacts with the forum bolster those created by its agent. Shackelford knew the aircraft was to be sold to a Pennsylvania corporation and willingly accepted a check for the purchase price of the plane from Betters. Thus, the case of Furnival Machinery, supra, again provides guidance. Shackelford willingly delivered the airplane to Mid-South knowing full well that after certain cosmetic and mechanical changes, the plane would be delivered to Betters, a Pennsylvania corporation. This is not a case where a defendant having sold an article to one customer may fairly claim surprise when that same article later turns up in a third state. See Johnson v. Helicopter & Airplane Servs. Corp., 389 F.Supp. 509, 530 (D.Md.1974). By taking part in this transaction, Shackelford purposefully availed himself of the privilege of conducting business activities in Pennsylvania. Cf, Furnival Machinery, supra.

In sum, we find that the exercise of in personam jurisdiction over Mid-South and consequently, R.E. Shackelford, to be proper in Pennsylvania. Accordingly, we reverse the decision of the court below and reinstate the suits against Mid-South and R.E. Shackelford.

Order reversed and case remanded for further proceedings. Jurisdiction relinquished.

      . In his affidavit in support of his preliminary objections, R.E. Shackelford states his residence is in Bradenton, Florida. This discrepancy is of no consequence in the present appeal.

      . The concept that a corporation has “purposefully avail[ed] itself of the privilege of conducting activities within the forum state” is inextricably intertwined with that of "forseeability” so that a corporation has clear notice that it is subject to suit in that forum and can structure its conduct accordingly. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980). In other words, the defendant’s conduct and connection to the forum must be such that “he should reasonably anticipate being haled into court there.” 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 501.

      . In Pennsylvania, the foregoing analysis has often been performed by applying the three part test first announced in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 19, 323 A.2d 11, 15 (1974), as follows:
      First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws. Hanson v. Denckla, supra. Secondly, the cause of action must arise from defendant’s activities within the forum state. See Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374 (6th Cir.1968); Electric Regulator Corp. v. Sterling Extruder

        Corp., 280 F.Supp. 550 (D.Conn.1968). Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. International Shoe v. Washington, supra [326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ]; see Southern Mach. Co. v. Mahasco Indus., Inc., supra [401 F.2d 374 (6th Cir.1968) ]; see also In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220 (6th Cir.1972); Kourkene v. American BBR, Inc., 313 F.2d 769 (9th Cir.1963).

        See also Crompton v. Park Ward Motors, Inc., 299 Pa.Super. 40, 44-45, 445 A.2d 137, 139 (1982); Koenig v. International Bro. of Boilermakers, 284 Pa.Super. 558, 426 A.2d 635 (1980).
      However, this three part test was criticized by the Chief Justice Roberts of the Pennsylvania Supreme Court in Kingsley & Keith (Canada) Ltd. v. Mercer International Corp., 500 Pa. 371, 374 n. 1, 456 A.2d 1333, 1335 n. 1 (1983) (affirmance by an equally divided court). Subsequently, in United Farm, supra, six justices, although evenly divided as to the result, adopted a more flexible, minimum contact analysis of jurisdictional due process. By moving towards a more flexible approach, we defer to the admonition of the United States Supreme Court that in personam jurisdiction may not turn on the application of "mechanical" test. See Burger King v. Rudzewicz, 471 U.S. at 478, 105 S.Ct. at 2185.

      . The question of whether and to what extent a contract can constitute a "contact” for the purposes of the due process analysis is a matter of great debate among modern jurist. In Lakeside Bridge & Steel Co. v. Mountain State Construction Co., Inc., 445 U.S. 907, 910-911, 100 S.Ct. 1087, 1089, 63 L.Ed.2d 325, 326 (1980), United States Supreme Court Justice White, joined by Justice Powell, in-his dissent from the denial of certiorari, noted “the question of personal jurisdiction over a nonresident corporate defendant based on contractual dealings with a resident plaintiff has deeply divided the federal and state courts."

      . In fact, the airplane bill of sale listed Shackelford and seller and Betters as buyer. Although not part of the record, counsel for Shackelford produced a copy of the bill of sale at argument on the preliminary objections. See Opinion and order of Steege, J., September 25, 1990, p. 2.


author: HESTER, Judge:

text:
    595 A.2d 1269
    Irene TONKOVIC v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1991.
    Filed Aug. 22, 1991.

      Stephen L. Banko, Harrisburg, for appellant.
    Joseph M. Melillo, Harrisburg, for appellee.
    Before TAMILIA, POPOVICH and HESTER, JJ.
   HESTER, Judge:

State Farm Mutual Insurance Company (“State Farm”) appeals from the July 30, 1990 summary judgment entered by the Court of Common Pleas of Dauphin County in the amount of $5,406.08 in favor of the injured plaintiff, appellee in this action, Irene Tonkovic. The trial court determined that Irene Tonkovic’s claim for reimbursement of replacement prosthetic devices was not barred by the two-year limitation set forth in 40 P.S. § 1009.106(c) of the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. §§ 1009.101, et seq., repealed effective October 1, 1984 (the “Act”). Appellant argues that this determination is directly contrary to the plain meaning and stated intent of the legislature. We find no merit in appellant’s argument, and accordingly, we affirm.

We note initially that the standard for the grant of summary judgment is clear. In Fidelibus v. State Farm Automobile Insurance Association, 315 Pa.Super. 338, 339, 461 A.2d 1309, 1310 (1983), we stated:

Summary judgment is to be granted only in the clearest of eases, where the right is clear and free from doubt. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). Under Pa.R.C.P. 1035(b) summary judgment may be granted only if there is “no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.”

Furthermore, an appellate court will overturn entry of summary judgment by the trial court only if there has been an error of law or a clear abuse of discretion. Pestalozzi v. Philadelphia Flyers, Ltd., 394 Pa.Super. 420, 576 A.2d 72 (1990); Incollingo v. Maurer, 394 Pa.Super. 352, 575 A.2d 939 (1990); McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988).

The record reveals the following. On March 26, 1982, appellee was injured seriously in a head-on collision with another vehicle. As a result of the accident, both her legs were amputated below the knee. Appellant reimbursed appellee for all accident-related medical expenses and lost wages. The medical expenses included reimbursement for prosthetic devices and associated medical supplies. The last reimbursement appellee received was paid on March 5, 1986.

During the next two years, appellee did not incur any additional medical expenses. Subsequently, appellee’s physician prescribed replacement prosthetic devices. These were put in place, and appellee received a bill in the amount of $5,406.00 from Tuefel Ortholic-Prosthetic Associates. She submitted the bill for reimbursement from appellee. Appellee did not contest the reasonableness of the expenses incurred, nor did it contend that appellee filed the claim without the proper proof or contrary to the required procedure. Instead, appellee denied the claim on the basis that it was not timely, citing the statute of limitations set forth in 40 P.S. § 1009.106(c)(1) (repealed effective October 1, 1984) which provides:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If np-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than surviv- or’s benefits, by either the same or another claimant, may be commenced not later than two years after the last payment of benefits.

The trial court acknowledged that in Reed v. Pennsylvania National Mutual Casualty Insurance Co., 342 Pa.Super 517, 493 A.2d 710 (1985), we held that the legislature did not intend for the discovery rule to extend the two-year limitation period from the date of the last payment and thereby extend coverage to include unanticipated expenses incurred by injured motorists for injuries related to the accident but that had not yet manifested themselves. This accords with our Supreme Court’s interpretation that in the Act, the legislature sought to obtain low cost insurance for all motorists by limiting and making claims certain rather than permitting claims to retain future potential liability. See Sachritz v. Pennsylvania National Mutual Casually Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982).

We held in Reed v. Pennsylvania Mutual Casualty Insurance Co., supra, that the discovery rule did not apply to extend the limitations period past two years from the date of the last payment. There, we further quoted with approval language by the trial court interpreting section 106(c)(1) in McGlade v. Ohio Casualty Insurance Co., 18 Pa.D. & C.3d 676, 620 (Philadelphia County) (1980):

Once a benefit has been paid, however, and there is an acknowledged accident-related loss, both the insurance company and the injured party are on notice that a new statute of limitations begins to run from the last payment. This new period may expire prior or subsequent to four years after the accident. If no claim is made for a period of two years, it is presumed that any loss after this trouble-free period is unrelated to the accident and further benefits need not be paid. On the other hand, if a loss is suffered within two years of the last payment, the new loss may be found to have been accident-related.

Reed v. Pennsylvania Mutual Casualty Insurance Co., supra, 342 Pa.Super. at 523-24, 493 A.2d at 713 (emphasis added).

The trial court nevertheless determined that since the expense incurred by appellee at issue resulted from replacement prosthetics, rather than from a new injury related to the accident that did not manifest itself until later, this expense was not a “new” expense but a related “old” expense for continuing treatment. As such, the trial court concluded that appellee’s unreimbursed claim tolled the statute of limitations since it related back to the prior claim. It thus overcame the presumption we found in the statute that any claim brought later than two years from the last reimbursement was unrelated to the accident.

Appellant maintains that the purpose of any statute of limitation is to expedite litigation and to discourage delay in the prosecution of stale claims. Insurance Company of North America v. Carnahan, 446 Pa. 48, 284 A.2d 728 (1971). Furthermore, the statute of limitations set forth in 40 P.S. § 106(c)(1) is mandatory. Fidelibus v. State Farm Automobile Insurance Association, supra. Appellant also relies upon Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982), where our Supreme Court opined that the legislative purpose in the Act was to adhere to a four-year limitation yet to allow flexibility by permitting claims filed two years from the date of the last payment in cases where some payments had been made. Appellant next argues that allowing a claim such as appellee’s would defeat the four-year limitation and the goal of a definite period for claims.

Further, appellant analogizes appellee’s realization that a replacement prosthetic was needed with the discovery that a new accident-related injury has manifested itself and thus the consequent application of the discovery rule. Appellant then argues that in Reed v. Pennsylvania Mutual Casualty Insurance Co., supra, we specifically adopted the view that the discovery rule is not an exception to the statute of limitations. Further, appellant argues that the Act clearly provides that a loss accrues when it is sustained. Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). Accordingly, appellant contends that additional claims are barred as new claims and are not tolled. Fidelibus v. State Farm Auto Insurance Association, supra. Appellant notes that this interpretation is buttressed by the fact that a “loss” as defined by 40 P.S. § 1009.103 encompasses an “allowable expense” while an “allowable expense” includes medical products and services, and these in turn include replacement prosthetics. Accordingly, the additional treatment is a “loss” incurred two years after the last reimbursement and thus, is time-barred.

We reject this argument. Replacement prosthetics clearly are contemplated at the time that the initial prosthetics are inserted. Thus, they are foreseeable and should be viewed as related to the initial claim for allowable expenses. The replacement is not an injury that may or may not manifest itself or that may or may not be related to the accident, which is what the legislature intended to preclude. Accordingly, we conclude that the presumption implicit in section 106(c)(1) and relied upon by appellant was not intended to apply since replacement prosthetics are not a new or an additional injury claim. Rather, this claim for reimbursement is a continuation of the prior claim and relates back to it. Consequently, we hold that the bar of the two year statute of limitations set forth in section 106(c)(1) is not applicable. Further, the presumption never was intended to be irrefutable.

We note that in Reed v. Pennsylvania Mutual Casualty Insurance Co., supra, we stated that our discussion concerned application of the discovery rule to the limitations period, and we did not address continuing benefits for known injuries. Id., 342 Pa.Super at 523, 493 A.2d at 712. We further noted that our per curiam memorandum opinion in McGlade v. Ohio Casualty Insurance Co., 295 Pa.Super. 563, 435 A.2d 919 (1981), affirming McGlade v. Ohio Casualty Insurance Co., 18 Pa.D. & C.3d 676 (Philadelphia County) (1980), which held that there is no ambiguity in the language of the statute which permits distinguishing between “old” and “new” claims, is of no precedential value. See Melendez v. Pennsylvania Assigned Claims Plan, 384 Pa.Super. 48, 557 A.2d 767 (1989).

Instantly, in our view, the claim for reimbursement is not a new loss which accrued after the limitations period but is a continuing expense for an existing injury. The four year limitation does not bar continuing expenses incurred many years after the accident; it bars claims for new injuries not brought within four-years of the accident. Accordingly, we agree with the trial court that continuing benefits for known injuries are not barred by section 106(c)(1) and that this treatment advances the stated intention of the Act to provide the maximum restoration of motor vehicle accidents in Pennsylvania. See 40 P.S. § 1009.102; Tubner v. State Farm Mutual Automobile Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981).

Judgment affirmed.


author: HUDOCK, Judge:

text:
    595 A.2d 1272
    Matthew BERWICK and Tina Berwick, his wife, Appellees, v. DANIEL W. KEULER REALTORS, INC., and Herbert Schramm and Inga Schramm, his wife, Appellants.
    Superior Court of Pennsylvania.
    Submitted July 17, 1991.
    Filed Aug. 28, 1991.

      James V. Fareri, Stroudsburg, for appellants.
    David A. Martino, Bangor, for appellees.
    Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
   HUDOCK, Judge:

Daniel W. Keuler Realtors, Inc., and Herbert and Inga Schramm (Appellants) appeal from an order of the Court of Common Pleas of Monroe County granting Matthew and Tina Berwick (Appellees) a judgment of $11,000 with interest thereon from September 18, 1989. We affirm.

On April 22, 1989, Appellant Keuler Realtors prepared an Agreement of Sale (hereinafter “Agreement of Sale” or “Agreement”) which was executed by' Appellees as proposed buyers of a vacant parcel of land from Appellants Schramm, as proposed sellers, for the sum of $34,700. The Appellees paid the sum of $11,000 on deposit toward the purchase price to Appellant Keuler Realtors. The Agreement between the parties contained a mortgage contingency clause, making Appellees’ obligation contingent upon their obtaining a mortgage loan in the amount of $21,000 to be repaid over ten years. The Agreement also contained a provision requiring the Appellees to make their mortgage applications through the office of Appellant Keuler Realtors. The Agreement also contained a clause stating that the Agreement could be altered only by a writing executed by the parties.

The Appellees applied for a mortgage loan at the First National Bank of Palmerton and were advised on June 16, 1989 by the bank that their mortgage loan was approved for the sum of $19,600 and a seven-year repayment period. This mortgage loan differed in amount and term from that specified in the Agreement of Sale. Appellants Schramm, through Appellant Keuler Realtors, offered to provide to the Appellees “gap financing” in the amount of $2,300 on the same terms which the bank had provided, in order to make up the difference between the bank’s offering and the loan requirement. Appellees rejected the proposed financing offered by both the bank and Appellants Schramm, claiming that the monthly payment required by a seven-year mortgage was much higher than that required by a ten-year mortgage. Appellants refused to return the deposit monies to Appellees and Appellees filed a Complaint on September 18, 1989 seeking the return of their $11,000 deposit.

Appellants’ first claim is that the trial court erred in admitting parol testimony into evidence. Appellants contend that statements made by an agent of Appellant Keuler Realtors regarding Appellees’ failure to apply for a mortgage through Appellant Realtor constituted improper parol evidence. Specifically, Appellants claim that Appellees did not prove at trial that the statements in question were made subsequent to the Agreement of Sale. Had the statements been made subsequent to the Agreement, both sides agree, they would not be barred by the parol evidence rule. But since Appellants believe that Appellees failed to prove that the statements were subsequent to the Agreement, Appellant maintains that the statements should have been deemed parol evidence and, therefore, excluded.

This Court’s scope of review in a non-jury trial is limited to whether findings of fact are supported by competent evidence and whether the trial court committed an error of law. Slaseman v. Myers, 309 Pa.Super. 537, 455 A.2d 1213 (1983). In this case, the trial court, in its Finding of Facts, does not directly address the issue of whether the statements of Appellant Keuler Realtors’ agent were contemporaneous with or subsequent to the Agreement of Sale; the court merely states that the Appellees acted “with the knowledge and approval of an agent of [Appellant Keuler Realtors].” Finding of Fact No. 3. However, in its order denying Appellants’ motions for post-trial relief, the trial court suggests that it believed the statements to have been subsequent to the Agreement. Opinion of December 20, 1990, p. 3. Though the record is ambiguous as to whether the statements in question were made contemporaneous with or. subsequent to the Agreement of Sale, we believe that even if the statements were contemporaneous, and therefore inadmissible, the Appellants’ subsequent conduct so clearly modified the Agreement that it is unnecessary for us to determine whether the trial court’s finding (if such a finding was made) is supported by. competent evidence.

The major obstacle to allowing modification by subsequent conduct is the clause in the Agreement which states that the Agreement “shall not be altered, amended, changed or modified except in writing executed by the parties hereto.” Appellees’ Complaint, Exhibit A, Agreement of Sale, Paragraph 13 “Representations”. However, such a clause may be waived by implication, though “the person claiming the waiver to prevail must show that he was misled and prejudiced thereby.” Brown v. City of Pittsburgh, 409 Pa. 357, 361, 186 A.2d 399, 401 (1962). In the present case, it is apparent that Appellees were misled into thinking their mortgage application to the First National Bank of Palmerton was proper; Appellant Keuler Realtors made no protests when they learned that Appellees were not making their mortgage application through their office, and, furthermore, when the bank offered Appellees an inadequate amount of financing, Appellant Keuler Realtors sought supplemental financing from Appellants Schramm in the hope that Appellees could accept the combination bank and seller financing. Appellant Keuler Realtors clearly wanted Appellees to accept the financing and complete the purchase. Appellant Keuler Realtors cannot encourage Appellees to accept the bank financing and then later claim that that financing was somehow objectionable to them. In Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550, 244 A.2d 10 (1968), our Supreme Court held that “the effectiveness of a non-written modification in spite of a contract condition that modifications must be written depends upon whether enforcement of the condition is or is not barred by equitable considerations, not upon the technicality of whether the condition was or was not expressly and separately waived before the non-written modification.” Id. 430 Pa. at 560, 244 A.2d at 16. In the present case, though there was no express waiver of the clause prohibiting non-written modifications, we believe equitable considerations prevent us from enforcing that clause. We hold that Appellants, by their conduct subsequent to the Agreement of Sale, waived the clause of the Agreement prohibiting non-written modifications; Appellants may not now rely on that clause to deny Appellees the return of their deposit.

Furthermore, we believe that there is sufficient evidence to conclude that the subsequent conduct of Appellees and Appellant Keuler Realtors modified the Agreement of Sale to allow the Appellees to decline to use Appellant Keuler Realtors as their agent for the purpose of obtaining a mortgage loan. “[WJhere a written contract is modified by subsequent conduct of the parties, we believe that the extent of the modification must be shown by clear and convincing evidence.” See Tamaqua Borough v. Rush Township Sewer Authority, 85 Pa.Cmwlth. 421, 430, 482 A.2d 1167, 1172 (1984). The testimony of both Tina Berwick (N.T. at 7) and Daniel Keuler (N.T. at 26-27) confirms that both parties knew that Appellees were not using Appellant Keuler Realtors as agent for the purpose of obtaining a mortgage loan, and that Appellants did not object to this conduct at that time.

Appellants’ next claim that Appellees never applied for the type of mortgage contemplated by the mortgage contingency clause of the Agreement of Sale. Specifically, Appellants assert that Appellees’ mortgage application did not indicate the term or the interest rate specified in the Agreement of Sale. However, we note that Tina Berwick testified that she and her husband applied for a loan at ten percent (N.T. at 15), and that the bank’s approval letter of June 16, 1989 indicated that the term of the loan that Appellees applied for was ten years. (Plaintiff’s Exhibit P-5). Therefore, given our limited scope of review, Slaseman v. Myers, supra, we must conclude that there was ample evidence for the trial court to find that Appellees did apply for the type of mortgage specified in the Agreement of Sale.

The third claim of Appellants is that the financing offered by the bank and Appellants Schramm substantially satisfied the mortgage contingency clause of the Agreement of Sale, thereby creating a legal duty on the part of Appellees to close. We believe that both case law and common sense do not support this contention.

In Tieri v. Orbell, 192 Pa.Super. 612, 162 A.2d 248 (1960), Buyers unsuccessfully attempted to obtain twenty-year financing. Seller offered the Buyers a purchase-money mortgage of eleven and one-half years duration. When Buyers refused the Seller’s financing the Seller retained the Buyers’ deposit monies as liquidated damages. This Court held that although the mortgage contingency clause of the Agreement of Sale was silent as to the type of mortgage the Buyers were to obtain, the Buyers’ attempts to secure a twenty-year mortgage indicated the type of mortgage they sought, and that, accordingly, the Seller could not force the Buyers to accept financing of a sort that he had not originally contemplated. Given the Tieri holding and the facts before us in this case, we must conclude that the combined seller-bank financing did not substantially satisfy the mortgage contingency clause of the Agreement of Sale. We note that here, unlike in Tieri, the mortgage contingency clause is specific as to the rate, term, and type of lender sought. The court in Tieri would not allow Seller to force Buyers to accept a type of financing that Buyers had demonstrated, through their actions, was not what they desired; this Court certainly will not allow Seller (Appellants Schramm) to force the Buyers (Appellees) to accept financing that runs counter to the type of financing that both parties had agreed upon and memorialized in the Agreement of Sale.

Appellants would have Appellees accept a mortgage loan of a term significantly less than that provided for in the Agreement—seven years instead of ten years. Additionally, the Agreement calls for Appellees to apply for financing at a “responsible lending institution.” Appellees’ Complaint, Exhibit A, Agreement of Sale, Paragraph 4(e). It is self-evident that Appellants Schramm are not a “responsible lending institution”. Appellant Keuler Realtors even acknowledged this in their testimony below. (N.T., Daniel W. Keuler, at 27). We believe that the nature of the lender is a material element to a proposed purchaser of property for at least two reasons.

First, an institutional lender, like a bank, savings and loan or credit union, will usually appraise the property to be mortgaged in order to determine if its value is sufficient to cover the entire loan. Where, as here, the property is found inadequate to the amount of the loan sought, the institutional lender will not approve the loan. If the institutional lender so denies the loan application or, as here, approves the application but for a lesser amount and at terms less favorable to Buyer, the mortgage contingency clause operates to release Buyer from his obligation to complete the purchase. The requirement that a lender be a “responsible lending institution” ensures that the property will be appraised before the Buyer has to complete the purchase, and that if the property is of significantly less value than the sale price, the loan application will not be approved and Buyer will be released from the contract. Thus, the Buyer is afforded protection by the lending procedures of the institutional lender. Requiring a Buyer to accept “gap financing” from the Seller after an institutional lender has denied a mortgage application in the amount required by the Agreement of Sale would defeat one of the primary purposes behind the requirement that Buyer apply to only “responsible lending institutions”. Second, if Buyer’s mortgage is held by an established lending institution and Buyer defaults, the institutional lender is apt to be more able and willing to adjust matters reasonably than would an individual who held the mortgage. For these reasons, we conclude that the financing offered by the bank and Appellants Schramm did not substantially satisfy the requirements of the mortgage contingency clause. Consequently, Appellees were not obligated to accept that financing and did not, therefore, breach the Agreement of Sale when they rejected that financing.

Finally, Appellants contend that the lower court improperly awarded pre-judgment interest to Appellees. Appellants cite no cases for this argument, for indeed the case law clearly holds that pre-judgment interest on contract disputes is a matter of legal right. Ayoob v. William Penn Trust Company, 132 Pa.Super. 496, 1 A.2d 580 (1938); Penneys v. Pennsylvania Railroad Company, 408 Pa. 276, 183 A.2d 544 (1962); Gold & Company, Inc. v. Northeast Theatre Corporation, 281 Pa.Super. 69, 421 A.2d 1151 (1980). We find that the trial court’s award of pre-judgment interest was correct.

Order affirmed.

      . Having affirmed the trial court on all counts, we note that even if Appellants had prevailed on any of their claims, they would not have been entitled to retain the Appellees’ entire $11,000 deposit. In the event that a Buyer breaches the Agreement of Sale, the usual Seller’s remedy is retention of the Buyer’s deposit monies as liquidated damages. Tudesco v. Wilson, 163 Pa.Super. 352, 60 A.2d 388 (1948). However, in Pennsylvania a Seller may generally not retain as liquidated damages any sum in excess of 10% of the contract price. See Kraft v. Michael, 166 Pa.Super. 57, 70 A.2d 424 (1950), Ellis v. Roberts, 98 Pa.Super. 49 (1929) (retention of 15% of the contract price was excessive and amounted to an attempt to compel specific performance from the Buyer, and was therefore a penalty and unenforceable as such). In the present case, the Appellees’ deposit of $11,000 amounted to over 31% of the sale price of $34,700. The clause requiring Appellees to forfeit the entire $11,000 in the event of their breach would therefore be a penalty. Since the clause amounts to a penalty, we could not have enforced it. Thus, had we found merit to any of Appellants’ arguments on appeal we would have remanded to the trial court where Appellants would have been limited to only those damages they could prove.


author: CAVANAUGH, Judge.

text:
    595 A.2d 1277
    ALLSTATE INSURANCE COMPANY and Mrs. Ressler’s Food Products, Appellants, v. O’Neal McFADDEN, Appellee.
    Superior Court of Pennsylvania.
    Argued June 19, 1991.
    Filed Aug. 28, 1991.

      William S. Steiger, Philadelphia, for appellants.
    Joanne Fishman, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and WIEAND, JJ.
   CAVANAUGH, Judge.

The issue in this case is whether the court below properly entered summary judgment in favor of the appellee, O’Neal McFadden, the defendant below, and against appellant, Allstate Insurance Company and Mrs. Ressler’s Food Products, the plaintiffs below.

The undisputed facts were as follows. On December 29, 1987, O’Neal McFadden, an employee of Mrs. Ressler’s Food Products, was involved in an automobile accident in New Jersey, while acting within the scope of his employment. Mr. McFadden is a resident of Pennsylvania and his employer is a Pennsylvania corporation. He regularly worked in Pennsylvania but also made deliveries for his employer in New Jersey on a regular basis. As a result of the accident, Allstate Insurance Company, which was Mrs. Ressler’s Food Products workmen’s compensation carrier, made payments under the Workmen’s Compensation Act to Mr. McFadden in the amount of $16,691.08. McFadden settled his claim for personal injuries against the owner of the other vehicle involved in the accident for an undisclosed sum.

In January, 1990, Allstate Insurance Company and Mrs. Ressler’s Food Products commenced a civil action in Philadelphia County against Mr. McFadden seeking reimbursement of the workmen’s compensation payments made to him. After the defendant’s answer and new matter were filed and the pleadings closed, the appellants filed a motion for summary judgment on the basis that the New Jersey Workmen’s Compensation Act and the New Jersey Motor Vehicle Act provided for subrogation to the workmen’s compensation carrier for monies recovered from a third-party tortfeasor as a result of a motor vehicle accident. The motion also alleged that New Jersey law applied as it was the state with the most significant contacts with the accident. The motion further stated: “The only issue before this court is a conflict of laws issue. It is an issue of law only and there are no genuine or material factual matters in dispute. Therefore, this matter is appropriate for summary judgment.”

Subsequently, appellee filed a motion for summary judgment which was granted by the court below and the complaint was dismissed with prejudice, order by Doty, J. Allstate Insurance Company and Mrs. Ressler’s Food Products have appealed to this court.

Summary judgment may be granted if the pleadings, depositions, answers to interrogatories and admissions on file show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 452 A.2d 269 (1982); Scheetz v. Borough of Lansdale, 64 Pa.Cmwlth.Ct. 24, 438 A.2d 1048 (1982). Hedlund Manufacturing Co. v. Weiser, Stapler & Spivak, 517 Pa. 522 539 A.2d 357 (1988); Gabovitz v. State Auto Insurance Association, 362 Pa.Super. 17, 523 A.2d 403 (1987). See also, Pa. R.C.P. 1035. Summary judgment may be entered only in cases that are clear and free from doubt. Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782 (1980); Weiss v. Keystone Mack Sales,, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The moving party, in this case the appellee, has the burden of proving that no material issue of fact exists. Billman v. Pennsylvania Assigned Claims Plan, 349 Pa.Super. 448, 503 A.2d 932 (1986). A trial court’s grant of summary judgment will be overturned only if there has been an error of law or clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988). Finally, in summary judgment proceedings, it is not the court’s function to determine facts, but only to determine if a material issue of fact exists. Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984).

Appellants contend that, the court below erred in failing to recognize the existence of genuine issues of material fact. This argument is waived as the appellants alleged in their own motion for summary judgment that there were no genuine issues of material fact in dispute. In any event, we find that there was no genuine issue of fact and that the resolution of the dispute turned solely on questions of law.

The first issue to be determined is whether New Jersey or Pennsylvania law should be applied in determining the rights of appellants to subrogation. We agree with the court below that in the posture of the case before us, Pennsylvania had the most significant contacts. In the landmark case of Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964) the Supreme Court abandoned the rule in conflict of law cases that the law to be applied was that of the place where the injury occurred, lex loci delicti. In its place, the court adopted the rule that the law of the state having the most significant contacts with the matter in dispute should prevail. The weight of a particular state’s contacts must be measured on a qualitative rather than a quantitative scale. Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970). It is firmly established in our jurisprudence that a less restrictive approach than that of lex loci delicti has been replaced by a government interest analysis and a significant relationship approach. Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 539 A.2d 871 (1988). Under the Pennsylvania choice of law standard, the state having the most interest in the problem, and which is most intimately concerned with the outcome, is the forum whose law should apply. Spratley v. Aetna Casualty & Surety Co., 704 F.Supp. 595 (E.D.Pa.1989).

Pennsylvania has a significant interest in payments under its Workmen’s Compensation Law and the subrogation by Pennsylvania employers to monies paid to its employees by a third party. In addition, the injured employee in this case was a resident of Pennsylvania, he worked for a Pennsylvania corporation in Pennsylvania on a regular basis, although he also regularly worked in New Jersey. He was compensated under a workmen’s compensation insurance policy obtained by his employer as required by the Pennsylvania Workmen’s Compensation Act, 77 Pa.S. § 1 et seq.

The New Jersey relationship to the case is that the motor vehicle accident occurred in that state at a time when the appellee was acting within the scope of his employment and the tortfeasor was a resident of New Jersey.

We determine the state that had the most significant relationship on the basis of the question that we must resolve, and not on the location of the accident or the residence of the tortfeasor. Our inquiry is not who was responsible for the accident but whether the appellants have a right to subrogation of the monies paid to appellee under the Workmen’s Compensation Act when he has made settlement with the tortfeasor. The motor vehicle accident in New Jersey merely triggered appellee’s rights to compensation under the Pennsylvania Workmen’s Compensation Act, but it is not the overriding consideration before us. Pennsylvania is the state with the most significant interest in determining the right of an employer to subrogation where it has made payments to an injured employee. We therefore conclude that the law of Pennsylvania is applicable.

A case that is very analogous to our own is Van Den Heuval v. Wallace, 382 Pa.Super. 242, 555 A.2d 162 (1989). Mr. Van Den Heuval, a resident of Maryland, was employed by Breeding & Day, Inc., a Delaware corporation having offices in Wilmington, Delaware. He was involved in a motor vehicle accident in Chester County on October 26, 1984 while acting within the scope of his employment. Van Den Heuval was paid workmen’s compensation benefits by his employer’s workmen’s compensation carrier, Rockwood Insurance Company. The employee commenced a tort action in Chester County and Rockwood Insurance Company petitioned to intervene to protect its right of subrogation, which it had under Delaware law. The court below denied the petition as under Pennsylvania’s Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1720 there is no right to subrogation for workmen’s compensation benefits paid as a result of injuries sustained in a motor vehicle accident. We reversed, holding that Delaware law applied, as it was the state having the most significant contacts with the workmen’s compensation aspect of the case.

Similarly, in the matter sub judice, the appellants are seeking subrogation of monies paid to the appellee under the Workmen’s Compensation Act. Clearly, the most important aspect of this case is the recapturing of monies paid in accordance with the compensation law.

The Pennsylvania Workmen’s Compensation Act provides at 77 Pa.S. § 671 that when an injury is caused by the act or omission of a third party, the employer shall be subrogated to the rights of the employee. However, this rule is superseded by the Motor Vehicle Financial Responsibility Law (MVFRL) which provides, inter alia, at 75 Pa. C.S. § 1720:

§ 1720. Subrogation

In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits ...

As the law of Pennsylvania prevails, it is of no moment that New Jersey’s Workmen’s Compensation Act, as did Pennsylvania’s prior to the Motor Vehicle Financial Responsibility Law, permit subrogation of monies paid under its Workmen’s Compensation Act, where there is recovery against a third party.

The appellants rely heavily on Wiest v. Eazor Express, 311 Pa.Super. 128, 457 A.2d 527 (1983) to support their contention that subrogation should be permitted if the accident occurred in a state permitting subrogation. Wiest is inapplicable, as it was decided under Pennsylvania’s No Fault Act, 40 Pa.S. § 1009.101, et seq. which has been repealed and replaced by the Motor Vehicle Financial Responsibility Law. Further, as the court noted in Wiest, the No-Fault Act specifically provided for different benefits if an accident occurred within the state or outside the state. 40 Pa.S. § 1009.201. Section 1720 of the MVFRL makes no distinction between accidents occurring within or outside of Pennsylvania.

The Motor Vehicle Financial Responsibility Law is unambiguous in its proviso that there shall be no subrogation of a claimant’s tort recovery with respect to workmen’s compensation benefits, where the benefits received rise from the use of a motor vehicle and this provision has been declared constitutional. Walters v. Kamppi, 118 Pa. Cmwlth. 487, 545 A.2d 975 (1988); allocatur denied 520 Pa. 620, 554 A.2d 512 (1989).

Having concluded that Pennsylvania law applies in determining the right to subrogation where benefits are paid under Pennsylvania’s Workmen’s Compensation Act, we find that appellants are not entitled to subrogation of monies paid to the appellee as a result of his settlement.

Order affirmed.

      . The complaint sought reimbursement in the amount of "$16,691.08, or the amount recovered from the third-party tortfeasor minus one-third (1/3) attorney’s fees and $200.00 in costs.”

      . Appellants also argued in their "Memorandum of Law in Support of Motion for Summary Judgment” that there was no material dispute as to any of the facts and therefore, the matter should be determined by means of a motion for summary judgment. Pa.R.A.P. 302(a) states that:. "issues not raised in the lower court are waived and cannot be raised for the first time on appeal." See also, Tarter v. Linn, 396 Pa.Super. 155, 578 A.2d 453 (1990).

      . Under the significant contact rule, the paramount consideration is: Whether the policies of one state rather than another should be furthered in the event of conflict can only be determined within the matrix of specific litigation. What should be sought is an analysis of the extent to which one state rather than another has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.

        McSwain v. McSwain, 420 Pa. 86, 94, 215 A.2d 677, 682 (1966).

      . It was stated in Brunelli v. Farelly Bros., 266 Pa.Super. 23, 25, 402 A.2d 1058, 1059 (1979).
      "Although the no-fault statute does not specifically prohibit subrogation by a workmen's compensation insurer, a careful analysis of that convoluted, ungrammatical statute leads us to the conclusion that the workmen’s compensation insurer is not subrogated, at least under the facts of the case before us, to any recovery by the injured employee."

      . Walters v. Kamppi, supra, in referring to § 1720 stated: “We find these words to be clear and free of all ambiguity." 118 Pa.Cmwlth. at 488, 545 A.2d at 977.


author: KELLY, Judge:

text:
    595 A.2d 1280
    COMMONWEALTH of Pennsylvania v. Kevin HARVEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 15, 1991.
    Filed Aug. 30, 1991.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge and KELLY and BROSKY, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine whether a guilty plea colloquy which fails to inform a defendant of the possibility of severing consolidated charges is deficient. We find that the absence of this information does not render a guilty plea invalid, and we affirm.

The facts and procedural history may be summarized as follows. On March 22, 1988, after an extensive colloquy, appellant entered a negotiated guilty plea to six counts of burglary, one count of robbery and one count of conspiracy. These crimes stemmed from events which occurred between 1985 and 1988. A negotiated, aggregate sentence of eight years to twenty years incarceration was imposed. No direct appeal was taken, nor was any petition to modify the sentence or to withdraw the guilty plea filed.

On April 27, 1988, appellant filed a pro se PCRA petition alleging, inter alia, ineffective assistance of plea counsel in that counsel had unlawfully induced appellant to plead guilty. Appellant sought the following relief: release from custody and discharge and/or original appellate rights restored. (Post Conviction Hearing Act Petition filed 4/27/ 88, p. 5). On August 18, 1988, an amended PCRA petition was filed by appointed counsel alleging, inter alia, that appellant had not been informed, prior to entering the guilty pleas, that he was entitled to receive a separate trial for each charge. In the amended petition, appellant requested the Court, inter alia, to permit him to withdraw his guilty plea and to order that he be tried separately on each burglary charge.

The Commonwealth filed a motion to dismiss requesting the court to dismiss appellant’s PCRA petition without an evidentiary hearing or, in the alternative, to compel further specific pleadings. The trial court, thereafter, entered an order requiring further specificity of the amended PCRA petition. Appellant filed a response. On February 7, 1989, the trial court held a brief hearing on the Commonwealth’s motion to dismiss, which was attended by both counsel for the Commonwealth and for appellant. On May 29, 1990, the trial court entered an order denying appellant’s petition. This timely appeal followed.

The sole issue for our review raised by appellant is:

I. CAN APPELLANT WITHDRAW HIS GUILTY PLEA IF HIS COUNSEL WAS INEFFECTIVE IN FAILING TO INFORM OR HAVE THE TRIAL COURT INFORM APPELLANT THAT HIS OFFENSES COULD BE SEVERED?

Appellant’s Brief at 6. Appellant requests this Court to enter an order that all guilty pleas entered by him are invalid and to remand this matter to the trial court for new trials. This, we cannot do.

A plea of guilty usually constitutes a waiver of all defects and defenses except those concerning the jurisdiction of the court, the legality of the sentence, and the validity of the plea. See Commonwealth v. Coles, 365 Pa.Super. 562, 530 A.2d 453 (1987). A party who seeks to withdraw a plea of guilty must ordinarily file a motion to withdraw the plea in the trial court. See Commonwealth v. Miller, 495 Pa. 177, 179, 433 A.2d 1, 2 (1981); Commonwealth v. Dowling, 482 Pa. 608, 609-610, 394 A.2d 488, 489 (1978); Commonwealth v. Lee, 460 Pa. 324, 327 n. 1, 333 A.2d 749, 750 n. 1 (1975); Pa.R.Crim.P. 319-321. In order to withdraw a guilty plea after sentencing, appellant must show a manifest injustice. Commonwealth v. Khorey, 521 Pa. 1, 8, 555 A.2d 100, 104 (1989), citing Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973).

Instantly, appellant challenges his guilty plea on the basis that it was induced by ineffective assistance of counsel. Specifically, appellant claims that his counsel was ineffective in failing to insure his awareness of the fact that he could have sought to sever the charges brought against him. Because he was not aware of this fact, appellant argues, his plea was unknowingly and unintelligently entered into. We cannot agree.

Claims of unlawfully induced guilty pleas based on ineffective assistance have previously been entertained. See Commonwealth v. Miller, supra; Commonwealth v. Unger, 494 Pa. 592, 597 n. 4, 432 A.2d 146, 148 n. 4 (1980); Commonwealth v. Knox, 304 Pa.Super. 368, 372, 450 A.2d 725, 727 (1982). To be successful, appellant must show that the ineffectiveness caused him to enter an involuntary or unknowing plea. Commonwealth v. Lutz, 492 Pa. 500, 505-506, 424 A.2d 1302, 1305 (1981). To do so, of course, appellant must establish:

by act or omission counsel was arguably ineffective; counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.

Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990) (citations omitted) (collecting cases).

It is well settled that to be lawful, a guilty plea must include inquiry as to whether:

(1) the defendant understood the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has a right to a jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreement.

Commonwealth v. Cole, 387 Pa.Super. 328, 336, 564 A.2d 203, 206-207 (1989) (en banc), citing Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977); Pa.R.Crim.P. 319; see also Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). Although it is clear that appellant’s colloquy comported with all of the above requirements, appellant contends that the possibility of severance should be added to the list.

After a thorough review of the relevant authorities, we have found no support for appellant’s proposition that recitation of this additional information is necessary to establish the validity of a guilty plea colloquy, and no reason to accept appellant’s invitation to make it necessary herein. The trial court has never been required to inform the defendant of the discretionary aspects of the trial proceedings. Nor has the guilty plea colloquy been required to help the defendant set odds on the trial outcome. Rather, as our Supreme Court has made clear, it is “only fundamental rights, such as the right to counsel, [which] require a warning to demonstrate waiver.” Commonwealth v. Khorey, supra, 521 Pa. at 10, 555 A.2d at 105; see also Commonwealth v. Warren, 307 Pa.Super. 221, 224, 453 A.2d 5, 6 (1982); Commonwealth v. Harris, 286 Pa.Super. 601, 608, 429 A.2d 685, 688 (1981).

The possibility of severance is neither a fundamental nor even an absolute right in Pennsylvania. “The decision to consolidate separate indictments or informations is within the discretion of the trial judge and will be reversed only where there has been a manifest abuse of discretion or a showing of prejudice and clear injustice to the defendant.” Commonwealth v. Thomas, 361 Pa.Super. 1, 6, 521 A.2d 442, 445 (1987) (citations omitted); see also Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981); Pa.R.Crim.P. 1127, 1128. It is only where, in the trial court's opinion, the resultant prejudice outweighs the needs of judicial economy that severance is necessary. Commonwealth v. Thomas, supra, 361 Pa.Superior Ct. at 6, 521 A.2d at 445 (1987). Although the knowledge of the possibility of severance might help a potential pleader determine the odds of winning at trial, such information is not in pari passum with the fundamental rights of a defendant. Cf. Commonwealth v. Anthony, 504 Pa. 551, 560 n. 4, 475 A.2d 1303, 1308 n. 4 (1984) (colloquy need not go into all the details of a jury trial, i.e., requirement of unanimity, right to participate in selection of jury, and provenance of juries); Commonwealth v. Chumley, 482 Pa. 626, 632-639, 394 A.2d 497, 503 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979) (need not inform appellant he had a right to a non-jury trial); Commonwealth v. Klinger, 323 Pa.Super. 181, 198, 470 A.2d 540, 549 (1983) (colloquy need not inform appellant on right to petition to withdraw guilty plea); Commonwealth v. Warren, 307 Pa.Super. 221, 224, 453 A.2d 5, 6 (1982) (colloquy not inadequate for failing to include advice concerning right to trial without jury); Commonwealth v. Harris, supra, 286 Pa.Superior Ct. at 608, 429 A.2d at 688 (“[t]he right to a non-jury trial is not a constitutionally guaranteed right and has never been a required part of a colloquy in this Commonwealth.”). Contrary to appellant’s assertion, therefore, his professed ignorance of this fact could not have established that his plea was unknowingly or unintelligently entered. See Commonwealth v. Khorey, supra, 521 Pa. at 10-11, 555 A.2d at 105.

We conclude, therefore, that appellant’s underlying claim of error is without merit. As such, appellant’s contention that his plea counsel was ineffective must fail. For the foregoing reasons, therefore, we find that the trial court did not err in denying appellant’s PCRA petition.

Order AFFIRMED.

      . The Post Conviction Hearing Act has been modified in part, repealed in part and renamed the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541 et seq., effective April 13, 1988. The new provision applies to all actions for collateral relief instituted on or after the effective date. We note that appellant’s petition was filed after April 13, 1988. Thus it will be evaluated under the PCRA, despite the erroneous labels pertaining to the PCHA on the petition and counsel’s subsequent filings.

      . We note additionally that the instant claim is cognizable under the PCRA. Although claims of ineffectiveness based solely on counsel’s failure to file a motion to sever offenses which stem from the same criminal incident have been held as not cognizable under the PCRA, see Commonwealth v. Pitts, 397 Pa.Super. 387, 393, 580 A.2d 352, 355 (1990), this is true only where the ineffectiveness alleged cannot be seen to undermine "the truth determining process so that no reliable adjudication of guilt could have taken place.” Commonwealth v. Pitts, supra, 580 A.2d at 355 (emphasis in original); see 42 Pa.C.S.A. § 9543(a)(2)(h). Here, however, the alleged ineffectiveness is in failing to inform appellant of the possibility of motioning to sever charges based on several separate incidents. In cases such as this, the argument that the jury could have been unduly prejudiced by the sheer number of charges pending before the court at once challenges the truth determining process. See Commonwealth v. Thomas, 361 Pa.Super. 1, 7-8, 521 A.2d 442, 446 (1987); Commonwealth v. Peterson, 453 Pa. 187, 194, 307 A.2d 264, 267-269 (1973).

      . We note additionally that appellant’s extensive colloquy included many items which are not required. See e.g. N.T. 3/22/88 at 10 (jury verdict must be unanimous); Id. at 9-10 (non-jury trial available); Id. at 19 (appealability of guilty plea).

      . The Pennsylvania Supreme Court has stated that the court need not go into all the details of a jury trial in the colloquy. Commonwealth v. Anthony, 504 Pa. 551, 560 n. 4, 475 A.2d 1303, 1308 n. 4 (1984). In this regard, Justice McDermott has noted, "[Ajdding more elements to the colloquy in order to clarify the procedures for the defendant only increases the complexity which causes the confusion. Moreover, the evolving patchwork of colloquy requirements places an onerous burden of uncertainty on the trial court, and affords numerous grounds for challenges to the content of the colloquy. These attacks, all too often, are used to disguise with legalistic formalism, what is, in essence, an attempt to obtain a new trial as relief from the sting of a jail sentence.” Commonwealth v. Shaffer, 498 Pa. 342, 366 n. 1, 446 A.2d 591, 598 n. 1 (1982) (McDermott, J., concurring).

      . We note that cases can be consolidated where the evidence of a separate crime would be admissible at the trial for another crime, such as evidence which tends to prove a common scheme, plan, or design involving incidents so related to each other that proof of one tends to prove the others. Commonwealth v. Thomas, supra, 521 A.2d at 446, citing Commonwealth v. Peterson, 453 Pa. 187, 197-198, 307 A.2d 264, 269 (1973); Commonwealth v. Rhodes, 250 Pa.Super. 210, 216, 378 A.2d 901, 904 (1977). In view of the fact that appellant’s crimes were allegedly committed with a common plan or scheme, it appears that the trial court would have been well within its discretion to deny a motion to sever even if appellant had filed one herein. See Commonwealth v. Thomas, supra, 521 A.2d at 445 (all offenses theft-related, with four of five cases involving the burglary of a private home); Commonwealth v. Lasch, 464 Pa. 573, 583, 347 A.2d 690, 695 (1975) (five alleged burglaries covered by four separate indictments).

      . Moreover, there was a reasonable basis for consolidating all of appellant’s offenses into one guilty plea. Had each offense been tried separately, appellant could have been sentenced to 80 to 160 years in prison. There was a factual basis for each of the six separate incidents, and had appellant been sentenced for the crimes of any one incident, he faced ten to twenty years. However, with the guilty plea, appellant received merely eight to twenty years. There is little doubt that this bargain effectuated appellant’s interests and was not the result of ineffective counsel.