author: PER CURIAM: TAMILIA, Judge,

text:
    531 A.2d 483
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael Allen COOK.
    Superior Court of Pennsylvania.
    Submitted Sept. 30, 1986.
    Filed Aug. 31, 1987.
    David E. Hershey, Assistant District Attorney, Harrisburg, for Com., appellant.
    James P. Sheppard, Harrisburg, for appellee.
    Before CIRILLO , President Judge, and ROWLEY and TAMILIA, JJ.

         Due to the resignation of Judge Wickersham, President Judge Cirillo has replaced him on this panel for purposes of deciding this case.

   PER CURIAM:

The order is reversed and the case is remanded to the trial court for further proceedings consistent with Commonwealth v. Schimelfenig, 361 Pa.Super. 325, 522 A.2d 605 (1987).

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting:

I respectfully dissent to the majority’s decision to reverse the Order of the trial court and remand for proceedings consistent with Commonwealth v. Schimelfenig, 361 Pa. Super. 325, 522 A.2d 605 (1987). Not only do I disagree with the result reached in Schimelfenig, I am not convinced the factual scenario at issue is directly analogous to Schi melfenig such that it must be followed in this particular situation.

This is a Commonwealth appeal from the Order of the trial court denying the Commonwealth's motion for a rule to show cause why a criminal complaint should not be refiled against appellee, Michael Cook.

Appellee was arrested on December 29, 1985 for driving under the influence of alcohol or a controlled substance and was released the same day. A criminal complaint was filed on December 30, 1985, and a summons was issued directing appellee to appear for a February 6, 1986 preliminary hearing. On February 6, 1986 at 11:00 a.m., appellee and his counsel appeared before District Justice Magaro; however, representatives from the police department and the district attorney’s office failed to appear. Accordingly, District Justice Magaro dismissed the criminal complaint against appellee. On February 12, 1986, the complaining officer appeared before District Justice Magaro and requested permission to refile the complaint. This request was denied.

The Commonwealth now contends the trial court erred in denying their petition to refile the criminal, charges. I cannot agree. This issue has been squarely addressed by our Court in Commonwealth v. Hatcher, 345 Pa.Super. 481, 484, 498 A.2d 925, 927 (1985), wherein we held “the dismissal of charges at a preliminary hearing precludes rearrest and subsequent prosecution when the second arrest occurs after the five day period for filing charges pursuant to Pa.R.Crim.P. 130(d).”

The Hatcher Court relied on Commonwealth v. Revtai, 343 Pa.Super. 149, 494 A.2d 399 (1985), allocatur granted, 509 Pa. 496, 503 A.2d 932 (1986) and Commonwealth v. Press, 342 Pa.Super. 507, 493 A.2d 705 (1985), allocatur granted, 509 Pa. 534, 505 A.2d 281 (1986) (both of which were expressly overruled by Schimelfenig) for the proposition that:

Rule 130(d) unequivocally establishes five days from the date of a defendant’s release as the time within which charges must be lodged against a defendant [and that] [t]he sanction for the Commonwealth’s violation of the five day deadline is dismissal of the charges unless the Commonwealth can show due diligence in the fact of the violation.

Id., 345 Pa.Superior Ct. at 484, 498 A.2d at 927. Although Revtai and Press have been overruled, Hatcher and Commonwealth v. Hagerman, 358 Pa.Super. 253, 517 A.2d 189 (1986) have not, and it is those two cases and the factual difference between them and Schimelfenig, Ravtai and Press upon which we rely. The facts here more closely approximate those in Hatcher and Hagerman. In all three of these cases, the Commonwealth did file timely (within five days of release after arrest) charges against the defendant/appellant. It was only after the original charges were dismissed and defendant released that a new charge was not filed within the requisite five days.

In Hagerman, supra, this Court held that if dismissal of the first complaint against the defendant was due to lack of due diligence by the Commonwealth, then the filing of a second complaint beyond the five-day period as required by Rule 130(d) is not proper and must be voided. In Hagerman, the Court could not ascertain from the record the reason for dismissal of the charges against the defendant and the case was remanded for such a determination.

In the instant action, the reason for dismissal of the complaint is clearly stated in the record — failure of representatives from either the district attorney’s office or the police department to attend the preliminary hearing. Thus there was no one present at the preliminary hearing to prosecute this action. Under any standard, due diligence, at the very least, requires the Commonwealth’s presence when prosecuting an action.

The trial court stated the legal principle succinctly and precisely, and we quote verbatim that section of the Opinion by Judge Herbert A. Schaffner which governs this case:

Our order denying the Commonwealth’s motion was based on Pennsylvania Rule of Criminal Procedure 130(b) and 130(d) and Commonwealth v. Hatcher, 345 Pa.Super. 481, 498 A.2d 925 (1985).
Rule 130(b) provides that when a defendant has been arrested without a warrant for driving under the influence of alcohol or controlled substances, the arresting officer may release the defendant from custody. Rule 130(d) states that when a defendant is released pursuant to Rule 130(b), a complaint must be filed against the defendant within five (5) days of the defendant’s release. In Commonwealth v. Hatcher, supra, the court determined that the dismissal of charges at a preliminary hearing precludes rearrest and subsequent prosecution when the second arrest occurs after the five day period for filing charges pursuant to Rule 130(d) Pa.R.Crim.P.
In this case, the refiling of charges could not be done in accordance with Rule 130(d) and for this reason, the Commonwealth’s motion was denied.

Furthermore, in Hagerman, the Court remanded to permit the Commonwealth to establish that dismissal of the complaint was not due to its own dereliction. Such a determination is not appropriate under the circumstances of this case. No greater dereliction exists than failure to appear by either the district attorney or the police. Such failure to appear is a clear lack of due diligence.

Accordingly, I would vacate the judgment of sentence and dismiss appellant.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    531 A.2d 485
    COMMONWEALTH of Pennsylvania v. Charles DENNIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 3, 1987.
    Filed Sept. 21, 1987.

      Joseph J. Yeager, Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, for Com., appellee.
    Before CIRILLO, President Judge, and HOFFMAN and HESTER, JJ.
   HESTER, Judge:

This is a direct appeal from a judgment of sentence entered on February 26, 1987. Appellant was convicted of voluntary manslaughter and burglary and sentenced to a term of imprisonment of two and one-half to five years followed by a five year probationary period. Appellant alleges that the trial court erred by sentencing him to a state correctional institution to be determined by the Bureau of Corrections instead of a county correctional facility. We disagree, and affirm the judgment of sentence.

The record reveals the following. On April 14, 1986, appellant was apprehended for burglarizing a bar. While out on bail on burglary charges, appellant quarreled with his neighbor, Alexander Kaminski, on July 19, 1986. The two men shoved each other, then appellant punched Kaminski in the face and head, killing him.

On December 5, 1986, appellant pled guilty to burglary and voluntary manslaughter. Following his sentencing, appellant filed a motion to modify his sentence on March 6, 1987. The trial court denied this motion on March 24, 1987. This appeal followed.

Appellant’s sole argument is that the trial court abused its discretion in sentencing him to a state institution to be determined by the Bureau of Corrections (hereinafter Bureau) .

The Bureau derives its authority to confine persons in its custody from 42 Pa.C.S. § 9762, which provides:

All persons sentenced to total or partial confinement for:
(1) maximum terms of five or more years shall be committed to the Bureau of Correction for confinement;
(2) maximum terms of two years or more but less than five years may be committed to the Bureau of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court;
(3) maximum terms of less than two years shall be committed to a county prison within the jurisdiction of the court except that as facilities become available on dates and in areas designated by the Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Corrections for confinement.

Any defendant who receives a maximum sentence of five years or more is committed to the Bureau’s custody under subsection (1). “In these cases, there is no discretion to be exercised by the Bureau; rather the legislature has directed where custody is to be vested- and the Bureau has no choice but to provide placement in one of its facilities for confinement.” County of Allegheny v. Commonwealth, 507 Pa. 360, 379, 490 A.2d 402, 412 (1985).

As appellant received a maximum sentence of five years imprisonment, and the legislature has mandated that the place of confinement for such sentences is to be determined by the Bureau, the trial court did not abuse its discretion when imposing appellant’s sentence. The judgment of sentence is affirmed.

      . Appellant has not challenged the legality or length of his sentence.


author: MONTEMURO, Judge:

text:
    531 A.2d 487
    Linda KOVAL, Administratrix of the Estate of Joseph Koval, Deceased and Linda Koval, in her own right, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Filed Sept. 14, 1987.

      Arthur Cutruzzula, Pittsburgh, for appellant.
    Mary Ann Czajkowski, Connellsville, for appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

Appellant Linda Koval, as administratrix of her husband’s estate and in her own right, challenges a grant of summary judgment in favor of appellee Liberty Mutual Insurance Company. We affirm the order of the Allegheny County Court of Common Pleas.

Ms. Koval seeks to “stack” the “personal injury protection” coverage on six vehicles that her husband, Joseph Koval, had insured pursuant to the now-defunct Pennsylvania No-Fault Motor Vehicle Insurance Act. Mr. Koval owned an automobile repair shop and used the six vehicles for business purposes. In early 1981, he obtained from Liberty Mutual a comprehensive “Garage Policy” of insurance to cover the numerous risks of his repair shop operation. This 28-page policy contained basic liability, No-fault, uninsured motorist and various types of “garage keepers” and “physical damage” insurance. Among the several documents that comprised the policy was a six-page “Personal Injury Protection Endorsement (Pennsylvania).” Page one of this document contained, in part, the following:

In accordance with Pennsylvania No-Fault Motor Vehicle Insurance Act, [Liberty Mutual] will pay any or all personal injury protection benefits for:
(a) medical expenses,
(b) work loss,
(c) replacement services loss,
(d) funeral expenses and
(e) survivor’s loss.

Affidavit of Linda Koval, exhibit “c,” at 32. Pages three and four contained the following, under the heading “Limits of Liability”:

Regardless of the number of ... insured motor vehicles to which this coverage applies, [Liberty Mutual’s] liability for personal injury protection benefits with respect to bodily injury to any one eligible person in any one motor vehicle accident is limited as follows:
(1) The maximum amount payable for work loss shall not exceed $15,000 ...;
(2) ...;
(3) the maximum amount payable for funeral expenses shall not exceed $1,500;
(4) the maximum amount payable for survivor’s loss shall not exceed $5,000.

Id. at 34-35. The parties appear to agree that the purpose of this language was to prohibit a claimant from cumulating or “stacking” in a single claim for a single injury the No-fault benefits available on each of the six covered vehicles.

On December 23, 1981, during the coverage period of the Garage Policy, Joseph Koval died in a one-car automobile accident. Because Mr. Koval was driving one of the six covered vehicles, Liberty Mutual paid to Linda Koval No-fault “personal injury protection benefits” in the amounts of $15,000 for work loss, $1,500 for funeral expenses and $5,000 for survivor’s loss. These figures represent the maximum amount of per-vehicle No-fault coverage available under the policy. Ms. Koval nevertheless filed this action to recover additional benefits through the No-fault coverages on the five remaining vehicles. Citing the “Limits of Liability” provision in the policy, the trial court granted Liberty Mutual’s motion for summary judgment and dismissed Ms. Koval’s complaint. This timely appeal followed.

On appeal, Ms. Koval does not dispute that the policy issued to her husband by Liberty Mutual contained a prohibition against “stacking” of No-fault benefits. Nor does she challenge the validity of “anti-stacking” provisions in general under the No-fault Act. Ms. Koval instead argues that the prohibition was neither plainly worded nor “conspicuously displayed” and that it therefore would not have defeated an insured’s “reasonable expectation of obtaining stacked benefits.” She also argues that the prohibition is unconscionable and therefore void because Liberty Mutual “buried” the fine print “Limits of Liability” provision in a thicket of confusing insurance documents. We will consider each of these two arguments in turn.

The parties agree that the starting point in the analysis of this case is the decision of our supreme court in Antanovich v. Allstate Ins. Co., 507 Pa. 68, 488 A.2d 571 (1985). The “anti-stacking” clause at issue in Antanovich is identical to the “Limits of Liability” provision presently before us. See, Antanovich v. Allstate Ins. Co., 320 Pa.Super. 322, 325-26, 467 A.2d 345, 347 (1983). The appellants in Antanovich, however, claimed not that the “anti-stacking” language was ambiguous or inconspicuous but that prohibitions against stacking in general undermine the policy of the No-fault Act. Our supreme court rejected this attempt to void all “anti-stacking” clauses in all No-fault policies. The court instead looked to the terms of the policy in question to determine the fairness and clarity of the bargain:

[W]e hold that the No-Fault Act, since repealed, contains no indication of policy clear enough to void a plain, unambiguous provision in an insurance contract which precludes stacking work loss benefits. ■ See Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983). Moreover, in the face of such a plain and unambiguous preclusion, appellants could have had no reasonable expectation of obtaining stacked benefits.

Antanovich, supra 507 Pa. at 76-77, 488 A.2d at 575. The Antanovich court thus reaffirmed the principle that the written contract of insurance “is the true test of the parties’ intention.” Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 307, 469 A.2d 563, 567 (1983). This principal, as our supreme court recognized in Standard Venetian Blind, avoids uncertain results, expedites the resolution of coverage disputes and reduces the costs of obtaining insurance. A limitation on coverage therefore will bind an insured as long as the limitation is “clearly worded and conspicuously displayed,” regardless of whether the insured actually read or understood it. Id., 503 Pa. at 307, 469 A.2d at 567. The court upheld the “anti-stacking” clause at issue in Antanovich because the language was so clear and so conspicuous that the insured could harbor “no reasonable expectation of obtaining stacked benefits.”

Because the language before the court in Antanovich is identical to the language before us today, Ms. Koval cannot and does not challenge the internal clarity of the Liberty Mutual’s “anti-stacking” clause. Instead, she contends that the clause, when read in the context of the whole policy, was too inconspicuous to preclude recovery of stacked benefits. Her argument challenges the structural rather than the semantic ambiguity of the Garage Policy. We certainly agree that we must construe a contract of insurance as a whole and not in discrete units. See Musisko v. Equitable Life Insurance Co., 344 Pa.Super. 101, 496 A.2d 28 (1985); United Fidelity and Guaranty v. Griggs, 341 Pa.Super. 286, 491 A.2d 267 (1985); Huffman v. Aetna Life and Cas. Co., 337 Pa.Super. 274, 486 A.2d 1330 (1984). We disagree, however, that the Garage Policy as a whole obscures the otherwise clear language here at issue.

Ms. Koval points out that the Garage Policy was one of several “lengthy and complex” insurance policies issued to Joseph Koval by Liberty -Mutual in early 1981. Liberty Mutual packaged these policies, which included Worker’s Compensation and Inland Marine insurance, together in a single ring-binder. Although the package as a whole presents more than an evening’s light reading, a reasonable inquiry would enable the average layperson to comprehend the extent of the various coverages. The Garage Policy appears in a discrete and clearly-labeled section of the ring-binder. The “Declarations” portion of the policy contains a single-page, tabular summary of the types of coverage and the limits of Liberty Mutual’s liability on each type. Rather than state a numerical limit on No-fault coverage, the table refers the reader to the “Personal Injury Protection Endorsement.” As we have indicated, the specific per-vehicle limits on No-fault coverage appear in the “anti-stacking” clause on pages three and four of the endorsement, under the boldfaced caption “Limits of Liability.” We find no undue complexity in the structure of the Garage Policy. Mr. Koval owned a business that required him to obtain many varieties of risk protection. Liberty Mutual was and is a large company that could offer Mr. Koval the full panoply of protection needed in the risky environment of modern commerce. Any agreement between a business and a party willing to cover the risks of that business necessarily rests on an intricate infrastructure of words, which the parties hope will define the precise boundaries of the risk coverage. The documents that evidence this kind of agreement are thus lengthy and complex. They need not, however, exceed the grasp of the ordinary layperson. Length alone will not render incomprehensible an otherwise clearly-worded and clearly-organized insurance contract. We agree with the trial court in this case that the Garage Policy was both clearly-worded and clearly-organized. Ms. Koval cannot escape the plain meaning of the “anti-stacking” clause merely because the necessary length and complexity of the policy might have discouraged her husband from reading its provisions. We would not read Antanovich v. Allstate Ins. Co. and Standard Venetian Blind Co. v. American Empire Ins. Co. so narrowly.

On the other hand, our supreme court recognized in Tonkovic v. State Farm Mut. Automobile Ins. Co., 513 Pa. 445, 521 A.2d 920 (1987), that even the clearest-written policy exclusion will not bind the insured if the insured applied for a specific type of coverage or benefit and the insurer issued a policy materially different from the requested type. An insurer cannot unilaterally defeat the expressed expectations of the insured. When the issued coverage differs materially from the coverage for which the insured specifically applied, the insurer must call the difference to the attention of the insured, regardless of whether the policy language by itself is clear. In Tonkovic, the insured had applied and paid for a policy that would provide disability coverage even if he was eligible for worker’s compensation benefits. The insurer nevertheless issued a policy with a worker’s compensation exclusion on disability coverage. At trial, the insured established that the insurer neither furnished the insured with a copy of the policy nor notified the insured of the discrepancy. Our supreme court found “a crucial distinction” between these circumstances and “cases where the insured received precisely the coverage that he requested but failed to read the policy to discover clauses that are the usual incident of the coverage applied for.” Tonkovic, supra, 513 Pa. at 454, 521 A.2d at 925. See also Banker v. Valley Fargo Ins. Co., 363 Pa.Super. 456, 526 A.2d 434 (1987). In the present case, Liberty Mutual did not bear the responsibility for assuring that Joseph Koval understood the prohibition against stacking. Ms. Koval nowhere contends that her husband applied or paid for a policy under which he could stack No-fault coverage. Liberty Mutual’s “anti-stacking” clause, moreover, was faithfully reproduced from the standard No-fault endorsement form promulgated by the Insurance Commissioner for use in Pennyslvania policies. See 31 Pa. Code § 66.102(e). Thus, Liberty Mutual has not attempted to saddle its insured with anything more than the “usual incidents” of the coverage that the insured requested. If Mr. Koval read his policy, he could have entertained “no reasonable expectation of obtaining stacked benefits.” If he failed to read his policy, his ignorance will not void the clear language of the “anti-stacking” clause.

The trial court correctly determined the ambiguity issue without the aid of a jury. Generally, interpretation of unambiguous writings falls within the province of the court, while interpretation of ambiguous writings is a matter for the jury. See Hutchinson v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385 (1986); Standard Venetian Blind Co. v. American Empire Ins. Co., supra; Community College of Beaver Cty. v. Society of the Faculty, 473 Pa. 576, 375 A.2d 1267 (1977). Given this allocation of tasks, the threshold determination of whether a writing is ambiguous necessarily lies with the court. See Hutchinson v. Sunbeam Coal Corp., supra; Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986).

Ms. Koval also argues that the “anti-stacking” clause is “unconscionable.” We bear in mind the observation of our supreme court in Standard Venetian Blind, supra 503 Pa. at 307, 469 A.2d 567, that “in light of the manifest inequality of bargaining power between an insurance company and a purchaser of insurance, a court may on occasion be justified in deviating from the plain language of a contract of insurance.” The supreme court, however, has “refused to hold contracts unconscionable simply because of a disparity in bargaining power.” Witmer v. Exxon Corp., 495 Pa. 540, 551, 434 A.2d 1222, 1228 (1981). The test of “unconscionability” is two-fold. First, one of the parties to the contract must have lacked a “meaningful choice” about whether to accept the provision in question. Second, the challenged provision must “unreasonably favor” the other party to the contract. See Witmer v. Exxon Corp., supra; Germantown Manufacturing Co. v. Rawlinson, 341 Pa.Super. 42, 491 A.2d 138 (1985); Bishop v. Washington, 331 Pa.Super. 387, 480 A.2d 1088 (1984). Thus, even if we assume that Joseph Koval lacked any “meaningful choice” in his dealings with Liberty Mutual on the question of “stacking” No-fault coverages, we must nevertheless determine whether the “anti-stacking” clause “unreasonably favors” Liberty Mutual. See Bishop v. Washington, supra. We find that it does not.

In support of her “unconscionability” argument, Ms. Koval simply rehashes the same points that she offered under her “ambiguity” argument. We have already determined that the “anti-stacking” clause was semantically and structurally clear. We find, moreover, that the clause reasonably allocated the risks of loss between the parties. Liberty Mutual insured Mr. Koval against the personal injury risks attendant to having six motor vehicles on the road. The personal injury protection coverage on each of the six vehicles corresponded to the amounts of coverage prescribed by Section 202 of the now-repealed No-fault Act, 40 P.S. § 1009.202. Nothing in the record suggests that Mr. Koval ever sought or paid for “added benefits” pursuant to Section 207(a)(1) of the Act, 40 P.S. § 1009.207(a)(1). Liberty Mutual therefore acted reasonably and fairly when it refused to extend its risk coverage by exposing itself to full, six-vehicle liability on a single-vehicle claim. We believe that the regulations of the Insurance Department further support the reasonableness and fairness of the “anti-stacking” clause. As we have indicated, the Commissioner has expressly approved of the language used by Liberty Mutual in the Garage Policy endorsement.

We note that the determination of whether a contract or a clause is “unconscionable” is a question of law for the court. See Bishop v. Washington, supra; Restatement (Second) of Contracts § 208, comment f (1981). Thus, on a motion for summary judgment, “a court may conclude, as a matter of law, that a contract or clause is enforceable regardless of an allegation of unconscionability, as long as there is no genuine issue of material fact.” Bishop, supra, 331 Pa.Superior Ct. at 399, 480 A.2d at 1094. As it did with the “ambiguity” argument, the trial court in the present case properly disposed of the “unconscionability” argument without the aid of a jury.

For the foregoing reasons, we affirm the order entering summary judgment in favor of appellee Liberty Mutual Insurance Company and against appellant Linda Koval.

Order affirmed.

      . No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of Feb. 12, 1984, P.L. 26, No. 11, § 8(a), eff. Oct. 1, 1984.

      . Ms. Koval seeks an additional $75,000 in work loss and $25,000 in survivor's loss benefits. These amounts equal five times the maximum amount of "personal injury protection benefits" coverage available on each of the five remaining vehicles. Ms. Koval also seeks an additional $1,547.42 in funeral expenses, which represents the difference between the $3,047.42 in expenses actually incurred for Joseph Koval’s funeral and the 51,500 paid by Liberty Mutual.

      . Ms. Koval lists three issues in the "Statement of Questions Involved” portion of her brief. The "Argument" portion, however, contains only two parts. This failure to correlate the argument with the questions involved transgresses Pa.R.A.P. 2119(a). Although we will overlook the transgression in the interests of justice and judicial economy, we note that Ms. Koval has presented two arguments in her brief, not three. We note also that Liberty Mutual’s brief violates Pa.R.A.P. 124(a)(4). Litigants should not ignore the rules established for appellate practice by our supreme court.

      . Ms. Koval does not question whether the "Personal Injury Protection Endorsement” was part of the insurance contract between her husband and Liberty Mutual. We have held that an endorsement is part of the underlying contract if the parties appear to have so intended and if applicable statutes or regulations allow modification of insurance contracts by endorsement. See Young v. United States Fidelity & Guaranty Co., 299 Pa.Super. 237, 445 A.2d 542 (1982). In the present case, the Garage Policy plainly permitted modification "by endorsement issued by [Liberty Mutual].” Affidavit of Linda Koval, exhibit "c” at 21. The Insurance Commissioner, moreover, has sanctioned modification by endorsement and has expressly approved of the "Personal Injury Protection Endorsement” form used by Liberty Mutual. See 31 Pa. Code § 66.102(a) and (e).

      . In a letter to Mr. Koval on a matter unrelated to No-fault coverage, an agent for Liberty Mutual had indicated that Garage Policies were “one of the hardest coverages to interpret” and that Mr. Koval could telephone the agent with any questions about coverage. Ms. Koval appears to believe that the agent’s characterization of garage policies as difficult to interpret somehow contributed to the "ambiguity" of the policy. We fail to see the connection.

      . This court has recognized that insurance contracts are typically contracts of "adhesion." See Bishop v. Washington, supra. See also Germantown Manufacturing Co. v. Rawlinson, supra (confession of judgment clause).


author: POPOVICH, Judge:

text:
    531 A.2d 492
    COMMONWEALTH of Pennsylvania v. Fonza Harry BLACK, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 21, 1987.
    Filed Sept. 22, 1987.

      Barry F. Feudale, Shamokin, for appellant.
    John P. Muncer, Assistant District Attorney, Sunbury, for Com., appellee.

      Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed upon appellant, Fonza Black, after he entered a plea of guilty to robbery (18 Pa.C.S.A. § 3701), false imprisonment (18 Pa.C.S.A. § 2903), and criminal mischief (18 Pa.C.S.A. § 3304). We must modify the sentence in part and deny appellant permission to appeal in part for the reasons herein stated.

The record reveals the following scenario:

On November 9, 1984, appellant received consecutive prison sentences of not less than three (3) nor more than eight (8) years for robbery, not less than one (1) nor more than two (2) years for unlawful restraint and a fine of $100.00 for criminal mischief. An appeal followed, and we remanded the matter for resentencing because the trial court erred in applying the deadly weapons enhancement section of the sentencing guidelines, 204 Pa.Code, Ch. 303, Section 303.4. Commonwealth v. Black, 355 Pa.Super. 369, 513 A.2d 475 (1986).

On August 26, 1986, appellant was resentenced to consecutive terms of two and one-half (272) to eight (8) years for robbery, one (1) to two (2) years for unlawful restraint, and a fine of $100.00 for criminal mischief. A timely motion for modification of sentence was denied, and this appeal followed.

Appellant raises the following issues: (1) whether the trial court erred in applying deadly weapons enhancement because the court increased appellant’s original sentence and violated the double jeopardy clause in resentencing; (2) whether the trial court abused its discretion in unreasonably deviating from the sentencing guidelines by sentencing within the guidelines at the initial sentencing and outside the guidelines upon resentencing; and (3) whether the trial court erred by sentencing and resentencing appellant for the crime of unlawful restraint when appellant entered a plea of guilty to the crime of false imprisonment.

Recently, our Supreme Court addressed the jurisdictional issues surrounding an appeal which raises sentencing issues and said that “[ajppellate review of sentences is governed statutorily by Subchapter G of the Sentencing Code, 42 Pa.C.S.A. § 9781.” Commonwealth v. Tuladziecki, 513 Pa. 508, 510, 522 A.2d 17, 18 (1987). If a sentence is legislatively permitted, the legality of the sentence is not implicated, and the appeal is discretionary. On the other hand, if the legality of sentence is implicated, then an appeal can be taken as of right under 42 Pa.C.S.A. § 9781(a) which provides:

(a) Right to appeal. — The defendant or the Commonwealth may appeal as of right the legality of the sentence.

Our Supreme Court also has elaborated on the discretionary aspects of an appeal and held that “[i]t is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the-trial court exercised its discretion.” Commonwealth v. Tuladziecki, 513 Pa. at 515, 522 A.2d at 20.

However, because appellant raises issues which involve the legality of sentence, we are able to address those issues. Appellant contends that the trial court violated his double jeopardy rights when he was resentenced. This contention must be rejected because appellant’s aggregate sentence on remand (3l/-> to 8 years) does not exceed the original sentence (4 to 8 years). See Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983).

Additionally, appellant contends that he was sentenced illegally because the trial court sentenced him on the charge of unlawful restraint when he entered a’ plea of guilty to false imprisonment. The .trial court said in its opinion that “the use of the term Unlawful Restraint instead of False Imprisonment did not prejudice the Defendant as the proper section of the Crimes Code was listed.” Trial Court’s Opinion at 2-3.

Because the incorrect crime was listed below, this error should be corrected. See Commonwealth v. Johnston, 348 Pa.Super. 160, 168, n. 10, 501 A.2d 1119, 1123 n. 10 (1985) affirmed (Slip Opinion, J. 68/87, filed August 5, 1987) (“this Court has the option of remanding for resentencing or amending the sentence directly.”) (citation omitted). We, however, need not remand for resentencing because the trial court indicated that the appellant was not prejudiced because “the proper section of the Crimes Code was listed.” See Trial Court’s Opinion at 2-3. Additionally, although the crime of false imprisonment (18 Pa.C.S.A. § 2903), a misdemeanor of the second degree, is a lesser included offense of the crime of unlawful restraint, a misdemeanor of the first degree, the trial court is not required to supply appellant with a lesser sentence. See Commonwealth v. Ostolaza, 282 Pa.Super. 43, 422 A.2d 667 (1980) (resentencing was not required where a defendant received the same sentence as was imposed at the original trial notwithstanding the fact that the more serious robbery conviction was reversed on appeal, and the conviction for the lesser included offense of theft remained).

In this case, appellant received a sentence of not less than one (1) year nor more than two (2) years, which is within the limits of punishment for a misdemeanor of the second degree. 18 Pa.C.S.A. § 106 provides that the sentence for such a crime shall not exceed two (2) years in prison.

With respect to the other issue which appellant raises, we deny appellant permission to appeal this issue. According to appellant, the trial court abused its discretion in unreasonably deviating from the sentencing guidelines by sentencing appellant within the guidelines at the initial sentencing and outside the guidelines upon resentencing. However, because this issue challenges the discretionary aspect of appellant’s sentence and because appellant failed to set forth in his brief that a substantial question was presented, this defect prevents us from granting appellant’s petition to appeal this issue. See Commonwealth v. Tuladziecki, 513 Pa. at 511, 522 A.2d at 19 (“the appellant is to supply his brief, with argument on the merits of the question, at the same time as he provides his concise statement of the reasons relied upon for allowance of appeal”)

We must modify the sentence in part and must deny appellant permission to appeal in part.

JOHNSON, J., concurs in the result.


author: CERCONE, Judge:

text:
    531 A.2d 494
    JACOB’S AIR CONDITIONING AND HEATING, Appellant, v. ASSOCIATED HEATING AND AIR CONDITIONING.
    Superior Court of Pennsylvania.
    Argued June 17, 1987.
    Filed Sept. 22, 1987.

      Scudder G. Stevens, Philadelphia, for appellant.
    William E. Jones, West Grove, for appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   CERCONE, Judge:

The issue before this court is whether the trial court properly denied appellant leave to file an amended complaint after the statute of limitations had run on the underlying action. We hold that the trial court did err in not permitting the amended complaint.

Appellant, Jacob’s Air Conditioning and Heating, commenced this action by filing a summons on November 14, 1984, followed by the filing of a complaint on May 21, 1985 against appellee, Associated Heating and Air Conditioning, for amounts due in connection with appellant’s alleged sale of services and materials regarding installation of certain “Peerless Boilers”. On July 29, 1985, appellee filed preliminary objections to appellant’s complaint to which appellant subsequently filed an amended complaint on September 10, 1985. Appellee then filed preliminary objections to appellant’s amended complaint on September 25, 1985. Included in appellee’s preliminary objections was the objection that appellant did not have legal capacity to bring this action as Jacob’s Air Conditioning and Heating was not registered as either a Pennsylvania corporation or a foreign corporation authorized to do business within the Commonwealth of Pennsylvania. On October 17, 1985, appellant filed an answer to appellee’s preliminary objections contending, inter alia, that appellant is a Pennsylvania corporation and has the capacity to bring this action.

The lower court entered an order on October 6, 1986, neither sustaining nor dismissing appellee’s preliminary objections to the amended complaint and directing the parties, pursuant to Rule 1028(c) of Pennsylvania Civil Procedure, 42 Pa.C.S.A. “to present evidence in compliance with the standard outlined in 42 Pa.C.S.A. § 6103, regarding the status of appellant’s corporate existence under 15 P.S. §§ 1206 and 1207”. Appellee subsequently submitted a Department of State Certificate to the court demonstrating that a search of the relevant Commonwealth records had failed to disclose a corporation entitled Jacob’s Air Conditioning and Heating. Thereafter, on November 5, 1986, the court sustained appellee’s preliminary objections raising the defense of lack of capacity to sue, dismissed appellant’s amended complaint and dismissed the remaining preliminary objections as moot.

In the interval between the time appellant filed an amended complaint, in which he maintained that Jacobs Air Conditioning and Heating was a Pennsylvania corporation, and the time appellant filed a petition for reconsideration, the statute of limitations had expired on the underlying cause of action. On November 17, 1986, appellant filed a petition for reconsideration stating that the statute of limitation on the underlying action had in fact run and that appellant should have been granted the opportunity to amend the complaint to show that the individual, Fred P. Jacobs and the fictitious name Jacob’s Air Conditioning and Heating were one and the same entity or agent, and further that defendant knew of this sameness of capacity as a fact. Appellants request was denied on November 20, 1986, and this timely appeal followed.

The initial focus of our inquiry must begin with Rule 1033 of Pennsylvania Civil Procedure 42 Pa.C.S.A., which states:

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

Pa.R.C.P. § 1033.

Generally, the right to amend a pleading should be liberally granted to secure determination of cases on their merits whenever possible. See Gregg v. Gacon Const. Co., 249 Pa.Super. 377, 378 A.2d 344 (1977). However, amendments will not be permitted where surprise or prejudice to the other party will result. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983); Mancine v. Concord—Liberty Savings and Loan Ass’n., 299 Pa.Super. 260, 445 A.2d 744 (1982) .

In situations where the statute of limitations had run and a party proposes an amendment to a complaint, as in the instant case, the question to be resolved is whether the proposed amendment merely corrects a party name or adds a new party to the litigation. If an amendment constitutes a simple correcting of the name of a party, it should be allowed, Wicker v. Esposito, 500 Pa. 457, 457 A.2d 1260 (1983) , but if the amendment in effect adds a new party, it should be prohibited. Cianchetti v. Kaylen, 241 Pa.Super. 437, 361 A.2d 842 (1976).

Appellee understood that this legal action stemmed from a transaction he allegedly entered into with Jacob’s Air Conditioning and Heating. The fact that Jacob’s Air Conditioning and Heating was a fictitious name or whether the fictitious name was owned by an individual or corporation does not affect appellee’s alleged contractual obligations. There is no change of assets subject to liability by permitting appellant to amend its pleading. This is a common concern in cases where a party has not been permitted to change the form of the business entity. Stated otherwise, appellee could not be prejudiced regardless of the form of the business entity if the assets subject to liability remain the same. Generally, when an appellee will not be prejudiced by the proposed change, courts are inclined to deem the change one of name only, not of party, and will permit the amendment to allow the change.

Waugh v. Steelton Taxicab Co., 371 Pa. 436, 89 A.2d 527 (1952), a case on which the lower court relied, further illustrates the reasoning supporting a decision to permit a party to change the name of a fictitious corporation to that of the owner. In Waugh, plaintiff brought a trespass action against defendant as a corporation. After the statute of limitations had run, plaintiff had learned that the Steelton Taxicab Company was not a corporation but a fictitious name used by defendant. The Pennsylvania Supreme Court held that plaintiff should be allowed to amend the complaint because this was not adding a new party but merely correcting a party already on record. Justice Musmanno, speaking for a majority of the court, stated, “In the case at bar no one other than Kosir (defendant) was ever involved because there was no entity as the Steelton Taxicab Company apart from the personality of Kosir.” Id., 371 Pa. at 440, 89 A.2d at 529 [emphasis in the original].

The reasoning applied by Justice Musmanno in permitting the plaintiff to amend his complaint in Waugh, is directly applicable to the matter before us. As in Waugh, no one other than appellant was ever involved because there was no entity as Jacobs Air Conditioning and Heating apart from the personality of Fred Jacobs.

In Fretts v. Pavetti, 282 Pa. Super. 166, 422 A.2d 881 (1980), the statute of limitations did not prevent an amendment of pleadings directing suit against a sole proprietor rather than the originally designated corporation. The counsel for plaintiff in Fretts assumed that the business was a corporation due to its improper registration under the Fictitious Names Act, 54 P.S. § 28.1 et seq. However, the corporation named did not actually exist and the sole proprietor, as was the situation in Waugh, had been the only person involved from the outset. The court based its decision to permit amendment of the pleading on the reasoning that, “When the original complaint seeks to impose liability against the assets of a business entity and the amendment is designed merely to correct the description of the business entity already made a party to the proceedings ... the amendment is properly permitted.” Id., 282 Pa.Superior Ct. at 171, 422 A.2d at 883.

The reasoning in Waugh and Fretts is applicable to the instant case. Appellant and Jacob’s Air Conditioning and Heating are one and the same. The amendment will not alter the assets subject to liability.

Accordingly, we find that appellee will not be prejudiced by permitting appellant to amend the pleading. The decision of the lower court is reversed and remanded to allow appellant to amend his complaint and to pursue his claim of recovery for sale of services and materials regarding the installation of boilers.

Jurisdiction is relinquished.


author: ROWLEY, Judge:

text:
    531 A.2d 497
    COMMONWEALTH of Pennsylvania, Appellant, v. William THOMAS.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1986.
    Filed Sept. 23, 1987.

      Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com., appellant.
    Jeffery P. Shender, Assistant Public Defender, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and BECK, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

In this appeal by the Commonwealth, the Commonwealth argues that the trial court unreasonably deviated from the Sentencing Guidelines when it sentenced defendant to 1) 6 to 23 months imprisonment for aggravated assault when the applicable mitigated minimum range, including the deadly weapon enhancement provision [204 Pa.Code § 303.-4], calls for a sentence of 16 to 32 months imprisonment, and 2) a concurrent sentence of 5 years probation for intimidation of a victim or witness when the mitigated minimum sentence range calls for a sentence of 4 to 8 months imprisonment. The Commonwealth submits that the trial court failed adequately to consider the guidelines and the totality of the circumstances in sentencing defendant.

The issues raised by appellant address the discretionary aspects of sentencing, and therefore appellant cannot appeal as of right, but must petition for permission to appeal. 42 Pa.C.S. § 9781. After this case was argued, the Pennsylvania Supreme Court decided Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), which held that an appellant must include a separate section preceding the argument section of the brief setting forth a concise statement of reasons why the sentence imposed is inappropriate under the Sentencing Code and why the Court should exercise its discretionary jurisdiction' to allow the appeal. In response to that decision the Commonwealth filed a motion to supplement its brief in the present case and the motion was granted. The supplement is entitled Reasons for Allowing Appeal and in it the Commonwealth submits only: 1) that the appeal presents a substantial question as to the appropriateness of the sentence; 2) that the trial court failed to provide sufficient reasons for its deviation from the Sentencing Guidelines; and 3) that the sentence calls into question whether the general scheme established by the Sentencing Code was followed.

After having considered the Commonwealth’s supplement to its brief, we conclude that it fails to set forth a substantial question as to the appropriateness of the sentence imposed by the trial court. See Commonwealth v. Tuladziecki, supra. The supplement is conclusory and merely parrots the language of the Sentencing Code and Tuladziecki. Because appellee objected to the Commonwealth’s motion to supplement its brief, and because the Commonwealth’s brief, even as supplemented, is inadequate, appellee has not waived the procedural requirements of Tuladziecki. See Commonwealth v. Rumbaugh, 365 Pa.Super. 388, 529 A.2d 1112 (1987). We therefore deny the Commonwealth’s petition for permission to appeal.

Petition for permission to appeal is denied.

CIRILLO, President Judge, concurs in the result.


author: POPOVICH, Judge: JOHNSON, Judge,

text:
    531 A.2d 498
    COMMONWEALTH of Pennsylvania, Appellant, v. Keith JUNG.
    Superior Court of Pennsylvania.
    Argued April 23, 1987.
    Filed Sept. 24, 1987.

      Patricia E. Coonahan, Assistant District Attorney, Cheltenham, for Com., appellant.
    William A. Davis, Assistant Public Defender, Norristown, for appellee.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal by appellant, the Commonwealth of Pennsylvania, from an order entered in the Montgomery County Court of Common Pleas discharging the defendantappellee, Keith Jung. We quash.

The unusual issue here is unprecedented in this Commonwealth and concerns whether the proceeding below was a suppression hearing or a trial.

On February 6, 1986, appellee was tried before the Honorable Laurence A. Brown and found not guilty of assault charges of his girlfriend, Naomi Ghen. During the course of the trial, a taped telephone conversation, recorded by appellee between Ms. Ghen and himself, was admitted into evidence over the Commonwealth’s objections. Appellee was consequently charged with violations of the Wiretap and Electronic Surveillance Control Act, (hereinafter referred to as “Act”), pursuant to 18 Pa.C.S.A. § 5703(1), (2) and (3), as a result of the February 6, 1986, trial. On August 4, 1986, appellee waived his right to a trial by jury before the Honorable Horace A. Davenport. The Commonwealth called its first witness, Jacqueline Stevens, the official court reporter at appellee’s prior trial, for the purpose of offering into evidence a copy of the transcript from the previous trial and the actual taped recordng of the alleged wiretap. Appellee objected to this testimony being offered into evidence. Said objection was sustained by the trial court which ruled that the Act did not pertain to the conduct of private citizens. The Commonwealth requested the right to take an interlocutory appeal on the issue of the admission into evidence of the official transcript of appellee’s prior trial and the taped recording of appellee’s conversation with Ms. Ghen. The Commonwealth’s motion was denied, and the trial court found the appellee not guilty of violations of the Act. The Commonwealth filed a timely appeal on September 2, 1986. On September 9, 1986, appellee filed a motion to quash the appeal, contending that the Commonwealth’s appeal was not appropriate since the trial court’s ruling was not made pursuant to a pre-trial suppression motion but was an evidentiary ruling made during the course of the trial. On December 30, 1986, this Court denied appellee’s motion.

The Commonwealth presents two issues for our review on appeal: (1) whether the Act prohibits the non-consensual interception of telephone communications by a private individual; and, (2) whether the trial court erred by dismissing the criminal charges against the appellee.

Before considering the merits of the Commonwealth’s appeal, this Court must first address appellee’s contention that the Commonwealth has no right of appeal under the instant circumstance.

In the case at bar, the trial court found the appellee not guilty of violations of the Act, 18 Pa.C.S.A. § 5703(1), (2) and (3), and dismissed the charges against him. (N.T., August 4, 1986, p. 14). Appellee argues that the verdict of acquittal by the trial court terminates subsequent prosecution of the appellee for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution. On the other hand, the Commonwealth argues that the trial court, as the trier of facts in the case, had not yet begun to hear evidence, and, therefore, double jeopardy had not attached. Rather, the Commonwealth contends that the total presentation of its case consisted of an offer of proof as to the testimony of its first witness, Jacqueline Steven, and that defense counsel objected at that point to the admission of said testimony into evidence. Thus, the Commonwealth characterizes defense counsel’s objection as a suppression motion and the proceeding as a pre-trial hearing at which jeopardy had not attached, instead of a trial at which the trial court had begun to hear evidence.

After a careful study of the record and the applicable law, we believe that the Commonwealth’s appeal must be quashed.

Instantly, the trial court’s finding of “not guilty” unequivocally bars reprosecution of appellee for the same offense on the basis of double jeopardy. In Commonwealth v. Tillman, 501 Pa. 395, 397-98, 461 A.2d 795, 796-97 (1983), the Pennsylvania Supreme Court, adopting the numerous rulings of the United States Supreme Court on the importance of not putting a defendant twice in jeopardy following a verdict of acquittal, stated:

“Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘[a] verdict of acquittal ... could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’ ” United States v. Martin Linen Supply Co., 430 U.S. 564, 572, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977), quoting United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). As the Supreme Court of the United States has recently observed, “the factfinder in a criminal case has traditionally been permitted to enter an unassailable but unreasonable verdict of ‘not guilty.’ ” Jackson v. Virginia, 443 U.S. 307, 317 n. 10, 99 S.Ct. 2781, 2788 n. 10, 61 L.Ed.2d 560 (1979). “ ‘[W]e necessarily accord absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision____’” Bullington v. Missouri, 451 U.S. 430, 442, 101 S.Ct. 1852, 1860, 68 L.Ed.2d 270 (1981), quoting Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). Accord, Commonwealth v. Mitchell, 497 Pa. 14, 17, 438 A.2d 596, 597 (1981). Thus, where a defendant has been found not guilty at trial, he may not be retried on the same offense, “even if the legal rulings underlying the acquittal were erroneous.” Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2179, 57 L.Ed.2d 43 (1978). As Justice Rehnquist, speaking on behalf of the Supreme Court of the United States, has stated,
“the law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent, he may be found guilty.’ ”
United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978), quoting Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). See also Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982) (verdict of not guilty “absolutely shields the defendant from retrial”). So, too, no prosecution appeal lies from a not guilty verdict, even where that verdict is “based upon an ‘egregiously erroneous foundation.’ ” Borough of West Ches ter v. Lal, 493 Pa. 387, 392, 426 A.2d 603, 605 (1981), quoting Sanabria v. United States, supra, 437 U.S. at 64, 98 S.Ct. at 2178; see Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962).

Thus, in the case at bar, the trial court’s verdict is insulated from any retrial. The trial court’s verdict of acquittal is final, no matter how erroneous its decision may be. Commonwealth v. Tillman, supra; Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

In Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), the United States Supreme Court accepted the Court of Appeals’ holding that the District Court had erred in various rulings and lacked power to direct a verdict of acquittal before the Government rested its case but still refused to permit a retrial on the same offense, following a verdict of acquittal.

In order to nullify the results of the trial court’s verdict of acquittal, the Commonwealth alleges that, at the time the trial court found appellant not guilty, no trial where double jeopardy attached had actually taken place. In Pennsylvania, double jeopardy attaches in a case without a jury when the accused has been subjected to charge and the trial court has begun to hear the evidence. Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979) (Per Nix, J., with two Justices concurring), cert. denied., 445 U.S. 952, 100 S.Ct. 1602, 63 L.Ed.2d 787 (1980), reh. denied, 446 U.S. 947, 100 S.Ct. 2178, 64 L.Ed.2d 804 (1980); Commonwealth v. Culpepper, 221 Pa.Super. 472, 293 A.2d 122 (1972). Thus, after a careful study of the record in the instant case, we find that, even though the proceeding itself was brief and no witnesses actually testified, a trial in which double jeopardy attached had taken place.

First, the appellee had been subjected to charge, i.e., the Commonwealth stated on the record the charge against appellee (violations of the Act, 18 Pa.C.S.A. § 5703(1), (2) and (3)). Commonwealth v. Klobuchir, supra; Commonwealth v. Culpepper, supra.

Second, the trial court had begun to hear evidence. Commonwealth v. Klobuchir, supra; Commonwealth v. Culpepper, supra. After determining that no pre-trial motions existed, the Commonwealth, at the trial court’s request, called its first witness. An offer of proof as to the witness’ testimony was requested and given.

Within the discretion of the trial court, a party producing a witness may be called upon to state on the record what the witness’ testimony would be and what is proposed to be proved by his testimony in order that the court may determine whether it will be incompetent, irrelevant or inadmissible. Commonwealth v. Evans, 190 Pa.Super. 179, 154 A.2d 57 (1959), affirmed 399 Pa. 387, 160 A.2d 407 (1960), cert. denied 364 U.S. 899, 81 S.Ct. 233, 5 L.Ed.2d 194 (1960), reh. denied 364 U.S. 939, 81 S.Ct. 377, 5 L.Ed.2d 371 (1961). The practice of requiring an offer of proof in certain instances is intended to aid the fair and orderly trial of a case. Id. A very important reason to include an offer of proof in the official trial record is that, in case the trial court’s ruling is appealed, the appellate court may understand the scope and the effect of the proposed testimony in considering whether the trial court’s ruling sustaining an objection was proper.

Thus, we cannot view the Commonwealth’s offer of proof, the following arguments and the trial court’s ruling as anything but part of the evidentiary gathering portion of the trial, i.e., the trial court had begun to hear evidence. Commonwealth v. Klobuchir, supra. Commonwealth v. Culpepper, supra.

In addition, in Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), the United States Supreme Court viewed the waiver of a trial by jury as a crucial factor in determining the start of a trial for double jeopardy purposes. In Commonwealth v. Mitchell, 497 Pa. 14, 438 A.2d 596 (1981), this Court held that double jeopardy had attached despite the fact that the defendant did not execute the written waiver of his right to a jury trial. In the instant case, appellee waived his right to a trial by jury by both oral colloquy and written waiver forms.

Therefore, in the case at bar, we cannot classify the proceedings before the trial court as a pre-trial suppression hearing. The facts at bar show: Appellee had beén subjected to charge. Appellee had waived his right to a trial by jury by both oral colloquy and written waiver forms. . After a determination that there were no pre-trial motions, the Commonwealth was allowed by the trial court to call its first witness. An offer of proof as to the testimony of the Commonwealth’s first witness, Jacqueline Stevens, was presented, argued by both sides and decided by the trial court. We find, that these events were all directly involved with the determination of appellee’s innocence or guilt. Cf. Commonwealth v. Fooks, 345 Pa.Super. 145, 150-55, 497 A.2d 1346, 1348-50 (1985). In Serfass v. United States, supra, 420 U.S. at 391, 95 S.Ct. at 1064, 43 L.Ed.2d at 275-276, the Supreme Court held that the rule that double jeopardy does not attach until a defendant is put to trial before the trier of facts, i.e., jury or judge, is not a mere technicality, nor is it a “rigid, mechanical” rule that frustrates the policies of the double jeopardy clause. Rather, the Court views it like most legal rules, an attempt to impart content to an abstraction.

Finally, despite the fact that the trial court’s verdict of acquittal in this case is insulated from any retrial, we do find the court’s decision concerning the admissibility of the transcript from appellee’s previous trial and the actual taped recording in question to be erroneous. Commonwealth v. Tillman, supra; Fong Foo v. United States, supra.

We disagree with the trial court’s conclusions, both as stated at trial and in its Opinion:

It’s the Court’s opinion that this law was intended to preclude the use of wiretapping by police officers under the circumstances such as was used there in criminal cases, and was not intended to preclude the use of wiretapping or the recording as between individuals, and particularly not as used here. (N.T. August 4, 1986, p. 13).
Even if Ghen was unaware that the conversation was being recorded, this Court does not interpret the Act as a prohibition upon a telephone subscriber from recording his own conversation. A telephone subscriber has an absolute right to record his own communications and to protect the use made of his own telephone. Commonwealth vs. Goldberg, supra. [208 Pa.Super. 513] at 517, 224 A.2d [91] at 92, [ (1966) ] quoting People vs. Applebaum [Appelbaum], 277 App.Div. 43, 97 N.Y.S.2d 807 (1950), aff'd 301 N.Y. 738, 95 N.E.2d 410 (1950). The Antiwiretapping Act was enacted to protect a telephone subscriber’s line from the interceptive devices of a third person; not to safeguard him from his own actions. See Id. (Opinion, pp. 3-4).

18 Pa.C.S.A. § 5703 sets forth the law as it stands today in Pennsylvania on interception, disclosure or use of wire or oral communications:

§ 5703. Interception, disclosure or use of wire or oral communications
Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:
(1) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication;
(2) willfully discloses or endeavors to disclose to any other person the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication; or
(3) willfully uses or endeavors to use the contents of any wire or oral communications, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire or oral communication.

1978, Oct. 4, P.L. 831, No. 164, § 2, effective in 60 days.

18 Pa.C.S.A. § 5702 defines “intercept” as “aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device.” Thus, we find the appellee’s use of a tape recorder in order to record a telephone conversation between himself and his girlfriend, Naomi Ghen, to be an interception pursuant to 18 Pa.C.S.A. §§ 5703 and 5702.

Exceptions to the prohibition on interception and disclosure of wire or oral communications are found in 18 Pa.C. S.A. § 5704. We agree with the Commonwealth that, under 18 Pa.C.S.A. § 5704, it is not unlawful for properly authorized investigative or law enforcement officers to intercept wire or oral communications. Authorized investigative or law enforcement officers are granted an exception from the general prohibition on interception and disclosure of communications under 18 Pa.C.S.A. § 5703, when they meet and follow certain specific criteria for allowance set out in 18 Pa.C.S.A. § 5704. Thus, we find the trial court to be in error when it concludes that 18 Pa.C.S.A. §§ 5702, 5703 and 5704 preclude wiretapping by police officers. (N.T. August 4, 1986, p. 13).

In dealing with private individuals, the only exception which permits a private individual to intercept a wire or oral communication is found in 18 Pa.C.S.A. § 5704(4):

§ 5704. Exceptions to prohibition on interception and disclosure of communications
It shall not be unlawful under this chapter for:
(4) A person, to intercept a wire or oral communication, where all parties to the communication have given prior consent to such interception.

Thus, in the case of a private individual, it is the law of Pennsylvania under 18 Pa.C.S.A. § 5704(4) that all parties to the communication must consent to the interception. In the instant case, the trial court was required to determine whether appellee’s girlfriend, Naomi Ghen, had given prior consent to appellee’s taping of their telephone conversation before deciding whether to admit the transcript of appellee’s previous trial and the taped recording of appellee’s conversation with his girlfriend, Naomi Ghen, into evidence. We find that, in looking at the extent of the proceedings in this case, the trial court could not possibly determine, given the evidence that it possessed at the time, whether Naomi Ghen had given prior consent to appellee’s taping of their telephone conversation without admitting the transcript and the tape into evidence.

In the case at bar, the trial court concluded that, even if Naomi Ghen was aware that the conversation was being recorded, it does not interpret the Act, 18 Pa.C.S.A. § 5701 et seq., as a prohibition upon a telephone subscriber from recording his own conversation. (Opinion, p. 3). Instead, the trial court adopted the reasoning of this Court in Commonwealth v. Goldberg, 208 Pa.Super. 513, 224 A.2d 91 (1966). In Goldberg, the court ruled that a telephone subscriber possesses an absolute right to record his own conversations and to protect the use made of his own telephone. The Goldberg court relied on the principle of a subscriber’s absolute right to record his own communications as set forth in People v. Appelbaum, 277 App.Div. 43, 97 N.Y.S.2d 807, aff'd 301 N.Y. 738, 95 N.E.2d 410 (1950). However, the principle set forth in People v. Appelbaum, id., upon which Commonwealth v. Goldberg, supra., rests, is not the law of Pennsylvania. Accord Commonwealth v. Baldwin, 282 Pa.Super. 82, 93-94, 422 A.2d 838, 844 (1980). To the contrary, in the case of a private individual, it is the law of Pennsylvania under 18 Pa.C.S.A. § 5704(4) that all parties to the communication must consent to the interception.

Appeal quashed.

JOHNSON, J., files a concurring statement.

JOHNSON, Judge,

concurring:

I join only so much of the majority opinion as determines that the trial court’s verdict of acquittal is final and that the appeal must, therefore, be quashed. Since the verdict is insulated from any retrial, I find no reason to reach the issue of whether the Wiretap and Electronic Surveillance Control Act prohibits a telephone subscriber from recording his own conversation. I cannot join that portion of the majority opinion which seeks, by way of dicta, to interpret Sections 5702, 5703 and 5704 of the Act.

      . McCormick, McCormick on Evidence, Title 3, Chapter 6 § 51 (3d ed. 1984).

        . In Commonwealth v. Fooks, supra, 345 Pa.Super. at 150, 497 A.2d al 1348, this Court held:
      In determining when a trial “commences” for Rule 1100 purposes, this Court has been guided by the comment drafted by the Criminal Procedural Rules Committee:
      It is not intended that preliminary calendar calls should constitute commencement of a trial. A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in the trial. Pa.R.Crim.P., Rule 1100 comment. (Emphasis supplied). In an often cited concurring opinion in Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977), former Chief Justice Eagen discussed the meaning of this comment:
      The words 'some other such’ immediately preceding 'first step in the trial’ clearly indicate that, the events specifically referred to in the comment are to be considered first steps in a trial for the purposes of Rule 1100, see Commonwealth v. Boyle, [470] Pa. [343], 353, 368 A.2d 661, 666 (1977), even though not all of these events are, stricly speaking, directly involved with the determination of guilt or innocence. For example, if a case were called to trial and after determining the parties were present, the trial Judge held a hearing on a Suppression Motion which had been reserved for the time of trial, presumably the trial would have commenced for purposes of Rule 1100. This leads to the conclusion that the principle concern behind Rule 1100 is simply that the commencement of trial be marked by a substantive, rather than a pro forma, event. Moreover, each of the events specifically referred to in the foregoing portions of the comment represents a degree of commitment of the Court’s time and resources such that the process of determining the defendant’s guilt or innocence follows directly therefrom. Accordingly, the beginning of any stage which leads directly into the guilt determining process if a 'first step’ in the trial for the purposes of Rule 1100.

      473 Pa. at 260, 373 A.2d at 1361 (Eagen, C.J., concurring). (Emphasis in original)


author: DEL SOLE, Judge:

text:
    531 A.2d 504
    In the Interest of Enjoli BENDER, a Minor. Appeal of Stephanie BENDER, Lebanon County Children and Youth Services.
    Superior Court of Pennsylvania.
    Submitted June 15, 1987.
    Filed Sept. 25, 1987.

      Robert B. Keys, Jr., Lebanon, for appellant.
    Samuel A. Kline, Lebanon, for appellee.
    Before DEL SOLE, MONTEMURO and HESTER, JJ.
   DEL SOLE, Judge:

Enjoli Bender was declared to be a dependent child by an Order issued by the Court of Common Pleas of Lebanon County on February 10, 1987. In this appeal, Stephanie Bender, (Enjoli’s mother), contends that the dependency of her daughter was not established by clear and convincing evidence at the above noted hearing. In particular, she argues that the trial court erred in permitting Dr. Cal Robinson, a staff clinical psychologist at Philhaven Hospital, to testify on behalf of Lebanon County Children and Youth Services (hereinafter, LCCYS) at the hearing, over her objection.

Mrs. Bender was evaluated by Dr. Robinson, at the request of LCCYS, following a dependency hearing regarding Enjoli’s sister, Amber, which took place on October 30, 1986. Due to concerns which arose at that proceeding, the trial court directed in its October 30th order, that LCCYS begin to monitor Enjoli’s situation at home and school. The record reveals that Mrs. Bender initially consented to having the psychological evaluation,. but at the dependency hearing she revoked her consent to release the evaluation, asserted her client-psychologist privilege and objected to Dr. Robinson’s testimony.

The psychologist-client privilege asserted by Mrs. Bender is set forth in 42 Pa.C.S.A. Section 5944 as follows:

No person who has been licensed under the act of March 23, 1972 (P.C. 136, No. 52) to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client. (Emphasis added).

The Pennsylvania Supreme Court in In Re B, 482 Pa. 471, 394 A.2d 419 (1978), held that a mother who voluntarily submits to an evaluation by a court-appointed expert, who is to evaluate her ability to provide adequate care for her child, would not be detrimentally relying on any statutorily created privilege, and as such the privilege would not bar the admission of such evaluation in a juvenile proceeding. In the case sub judice, the trial court held that since Mrs. Bender had consented to the evaluation, her objection to Dr. Robinson’s testimony was properly overruled.

Furthermore, this court’s recent holding in Matter of Adoption of Embick, 351 Pa.Super. 491, 506 A.2d 455 (1986) is applicable here. In Embick, the appellants also argued that the admission of the testimony of the court appointed psychologist (Dr. Piper) violated their client-psychologist privilege. The Embick court handled the question of whether the privilege should be applicable where appellants agree to be examined by a psychologist at the request of an Agency as follows:

..., there has been no showing that appellants were Dr. Piper’s clients in any sense' of that term. They were not seeking treatment, or counseling, or advice for any mental or emotional problems; ... They went to see Dr. Piper because they were asked to do so by the Agency, and for the limited purpose of examination. We therefore hold that under the facts of this case, the relationship between appellants and Dr. Piper was not the type of relationship contemplated by the statute which confers the privilege. Id., 351 Pa.Superior Ct. at 500, 506 A.2d at 460.

The statutory privilege invoked by Mrs. Bender clearly contemplates the existence of a true psychologist-client relationship before communications revealed to the psychologist must be kept in confidence. Like the parties involved in Embick, there was no such relationship in existence between Mrs. Bender and Dr. Robinson. Mrs. Bender seeks to distinguish Embick from the instant appeal by noting that the appellants therein were told, at the very least, that the psychologist would report the results of the evaluation back to the agency, if not directly to the court. Therefore, unlike herself the Embick appellants had no expectation of privacy. We find no merit to this argument. Regardless of whether or not Dr. Robinson or anyone else did explicitly inform Mrs. Bender, the circumstances under which the tests were requested certainly gave her notice that the results would not be kept in confidence. The tests were requested by LCCYS to aid in the determination of whether Mrs. Bender was able to provide proper parenting for her children. It is self evident that the tests would be of no use if the results could not be disclosed to LCCYS and the court.

We are aware that the proceeding in Embick was an involuntary termination of parental rights, whereas the case sub judice is a dependency action. However, in both situations the court is concerned with proper placement of the child and the possibility of keeping the family together. Therefore, we have no problem applying the reasoning stated therein to dismiss appellant’s arguments.

Finally, even if .we were to concede that a relationship did exist, another reason why appellant’s objection must fail is that there are certain instances where the statutory psychologist-client privilege must yield to disclosure of the communications. If the injury that would inure to the relationship by the disclosure of the communication is less that the benefit thereby gained for the correct disposal of litigation, then disclosure must be permitted. 8 WIGMORE EVIDENCE § 2285 (McNAUGHTON’S rev. ed. 1961). Here, where the court is concerned with whether the child is presently without proper parental care and, if so, whether that care is immediately available, we must hold that the injury that would inure to the relationship by the disclosure of thé communication is not greater than the benefit thereby gained for the correct disposal of the delicate and complicated societal issues before the court in a case such as this. Embick, supra, 506 A.2d at 461.

For all of the above reasons the trial court was correct in its decision to allow the psychologist to testify.

We shall now address appellant’s contention that there was insufficient competent evidence admitted during the dependency hearing to establish the dependency of Enjoli Bender.

The standard of review which this Court employs in cases of dependency is broad. However, the scope of our review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. Relying upon his unique posture, we will not overrule his findings if they are supported by competent evidence.

In Re Frank W.D., 315 Pa.Super. 510, 517, 462 A.2d 708, 711 (1983) (Citations omitted).

In the instant case, the trial court directed in an Order dated October 30, 1986 that LCCYS monitor Enjoli’s situation at home and at school. This directive came as a result of circumstances apprehended in an earlier proceeding involving Mrs. Bender’s other daughter, Amber, who was found to be a dependent child. Mrs. Bender interfered with the Agency’s attempts to fulfill the court’s order, thereby causing the Agency to suspect that Enjoli was without proper parental care and control necessary for her physical well being. It was at this point that the Agency requested Mrs. Bender be evaluated by Dr. Robinson.

The trial court found the child to be dependent based upon the testimony of Dr. Robinson and the testimony and conduct of Mrs. Bender. Dr. Robinson testified at great length about Mrs. Bender’s inability to care for her children and he felt that she was not psychologically mature enough to place the child’s needs above her own. (N.T. 9). Furthermore, he stated that she was manipulative, impulsive, self-centered, and indifferent to the welfare of others and that she is often antagonistic, caustic, and vindictive. (N.T. 8). It was also his opinion that Mrs. Bender was not able to meet the emotional needs of her children. (N.T. 7).

There was also repeated evidence that Mrs. Bender thwarted LCCYS’ access to Enjoli (N.T. 19, 22, 23, 57) and that she would not allow Enjoli to be evaluated at Philhaven, as requested by LCCYS.

We therefore hold that the trial court’s conclusion that there was clear and convincing evidence of the dependency of Enjoli was correct.

Order affirmed.


text:
    531 A.2d 507
    EAST HILLS TV & SPORTING v. Garry DIBERT t/d/b/a Maxum Consumer Services and Summit Bank (Two Cases). Appeal of Garry DIBERT t/d/b/a Maxum Consumer Services (Two Cases).
    Superior Court of Pennsylvania.
    Argued March 18, 1987.
    Filed Sept. 24, 1987.

      David J. Weaver, Johnstown, for appellant.
    Richard J. Russell, Johnstown, for East Hills TV, appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   ROWLEY, Judge:

These are consolidated appeals from orders of the Court of Common Pleas, Cambria County, directing that Summit Bank issue appellee, East Hills TV & Sporting, a check from the account of appellant in the amount of $38,940. We affirm.

Appellee, East Hills TV and Sporting, entered into an oral agreement with appellant, Garry Dibert, t/d/b/a Maxum Consumer Services, for the purchase of a number of video cassette recorders. According to appellant, the recorders were to be obtained by him at a bankruptcy sale in Connecticut. Appellee paid appellant the agreed price for the recorders. Shortly thereafter, upon the basis of information received to the effect that appellant might be unable or unwilling to perform the agreement, appellee instituted a complaint in equity to rescind the contract, alleging that appellant had misrepresented his ability to obtain the recorders in the agreed manner. Simultaneously, appellee filed a motion for special relief in the form of a preliminary injunction requesting that the court enjoin appellant from spending or utilizing any funds paid to him by appellee. The funds were on deposit in appellant’s business account at Summit Bank.

Pursuant to appellee’s motion, the trial court on May 8, 1986, entered a preliminary injunction enjoining appellant from spending or utilizing any of the funds paid him by appellee. Appellee was directed to file a bond in the amount of $20,000. The court further ordered that Summit Bank be “enjoined from honoring any request for withdrawal of [the funds at issue].”

A hearing to consider continuing the preliminary injunction was held on May 13, 1986. Edward C. Reed, owner of appellee East Hills TV & Sporting, testified at this proceeding but defendant/appellant Garry Dibert failed to appear. At the conclusion of the hearing, an order was entered by the trial judge, the Honorable Eugene A. Creany, continuing the preliminary injunction until May 29, 1986, to allow appellant another opportunity to appear and be heard.

All parties appeared on May 29, 1986. By order of court on May 29, 1986, the court made “the injunction previously issued permanent,” and enjoined the appellant “from interfering in any way” with appellee’s money that was on deposit in appellant’s account in Summit Bank. Additionally, Judge Creany ordered Summit Bank to turn over to appellee the sum of $38,940 from appellant’s account.

A further hearing was held on June 9, 1986, pursuant to a petition for contempt filed by appellee against Summit Bank for refusing to pay the funds to appellee as directed by the order of May 29, 1986. At that hearing appellant presented a motion to quash, preliminary objections, a motion to strike, an answer containing a counterclaim, a motion for reconsideration, and a motion to increase the bond. The trial court addressed all of these matters in its order of June 9, 1986.

The following day, June 10, Í986, the trial court entered a revised order, again directing Summit Bank to pay the funds at issue to appellee. The order also required appellee to post a bond in the amount of $45,000.

On June 16, 1986, appellant filed a notice of appeal from the orders entered on May 29, 1986, June 9, 1986, and June 10, 1986. On August 18, 1986, in response to appellee’s Motion to Strike the Notice of Appeal, the Superior Court ordered appellant to file a separate notice of appeal, nunc pro tunc from the June 10 order, struck the appeal as to the June 9 order which is interlocutory, and directed that the appeal from the May 29 order remain docketed at No. 908 Pittsburgh 1986, and that the nunc pro tunc appeal from the June 10 order be docketed at a separate number (No. 1243 Pittsburgh 1986). These two appeals were consolidated. Thus, the only two orders that are before us for review are those of May 29 and June 10.

Appellant raises four issues on appeal: (1) whether the trial court erred in denying, on June 9, 1986, his motion to quash based on allegations that appellant’s business agent was under the control of police officers at the time he received service of process on behalf of the appellant, and those police officers allegedly instructed the agent not to notify appellant of the pendency of the proceedings instituted against him; (2) whether the trial court properly held on June 9, 1986 that a court sitting in equity has jurisdiction over a matter when there is an adequate remedy at law; (3) whether the trial court erred in denying on June 9, 1986 the appellant’s preliminary objections to allow scandalous and impertinent material to mingle with the controversy; and (4) whether the court can direct a summary disposition of funds at a hearing held to determine whether a preliminary ex parte injunction should be continued. The first three issues relate to the order of June 9. Because the appeal from that order was stricken by our Court as interlocutory, those issues are not before us at this time (see footnotes 1, 2 and 3 to this opinion). However, appellant’s fourth issue, which relates to the orders of May 29 and June 10, is properly before us.

Appellant argues that the trial court’s decision to order Summit Bank to pay $38,940 from appellant’s business account to appellee went beyond the bounds of what the trial court statutorially was permitted to order and violated appellant’s right to due process. He contends that he should have been permitted to conduct discovery, introduce documentary evidence and exhibits, call witnesses, and present a case in an orderly “at-law” fashion. Appellee argues that the court was attempting merely to maintain the status quo between the parties pending a decision on the merits. Appellee insists that its filing of the $45,000 bond is sufficient to protect appellant’s interests pending the outcome of the case.

Appellate review of a decree granting a preliminary injunction is limited to whether the action of the court has “any apparently reasonable grounds.” Hospital Associa tion of Pennsylvania v. Commonwealth Department of Public Welfare, 495 Pa. 225, 433 A.2d 450 (1981). The purpose of a preliminary injunction is to preserve the status -quo as it existed before the acts complained of, and thereby prevent irreparable injury or gross injustice. Slott v. Plastic Fabricators, Inc., 402 Pa. 433, 167 A.2d 306 (1961). The act complained of in the instant action is appellant’s allegedly fraudulent representation that he could obtain video cassette recorders through a bankruptcy sale in the state of Connecticut. The “status quo” in the instant action would place appellee’s $38,940 in funds back in its own hands, where it was at the time of appellant’s representation. The irreparable injury is the potential loss of appellee’s funds which are needed to carry on its business.

We note at the outset that the issue of whether the trial court had an adequate basis for enjoining appellant from utilizing appellee’s funds located in the Summit Bank is not before us. Determination of whether appellee properly rescinded the contract, or is in breach of it, will be made at a later date at the trial level. The only issue addressed on the instant appeal is whether the trial court erred in ordering that appellee’s funds on deposit in appellant’s account at Summit Bank, which appellant was enjoined from using, be returned to appellee so that appellee’s business could continue as a going concern. On that issue counsel for both parties had the opportunity to present, examine and cross-examine witnesses. Mr. Reed, who owns the appellee business, provided testimony at the May 29th hearing that much of his line of credit was tied up in the aborted transaction with the appellant. We conclude that Mr. Reed’s testimony provided the necessary “reasonable grounds” upon which the trial court’s decision to return the money was based. It is evident that without that money, the business could not continue. The trial court properly increased appellee’s bond to cover its potential liability to appellant, and ordered Summit Bank to pay out $38,940 to appellee. Since appellant was lawfully enjoined from using the funds, he has not been harmed by virtue of the fact that appellee’s bond has been substituted for cash.

We affirm the orders of May 29, 1986 and June 10, 1986 insofar as they direct the payment of $38,940 by Summit Bank from appellant’s account to appellee. The case is remanded for further proceedings. Jurisdiction is relinquished.

      . In his motion to quash, appellant challenged the validity of service of process. The trial court found that service at appellant’s place of business had been proper. Appellant’s preliminary objections alleged that appellee had failed to exhaust a statutory remedy. The court found that the UCC was not the only remedy available, and on that basis, dismissed the preliminary objections.
      Appellant, in his motion to strike, sought to have paragraphs nine (9) through twelve (12) of the complaint stricken for allegedly raising "scandalous and impertinent matter” (criminal charges). The judge found that the pleadings conformed to law.
      The court noted in its June 9, 1986 order that the counterclaim would be addressed at a final hearing. The motion for reconsideration was denied for reasons given at the hearing on May 29, 1986. The motion to increase bond was granted. New bond was set at 545,000.

      . 908 Pittsburgh, 1986, per curiam order of August 13, 1986.

      . Appellant argues that Pa.R.C.P. 1531(e) limits the court to dissolving, continuing or modifying the injunction, and in no event is the court authorized to order that monies be returned to a party.