author:
TAMILIA, Judge:
      BECK, Judge,

text:
    595 A.2d 133
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert Charles GRUBB, Jr.
    Superior Court of Pennsylvania.
    Argued January 22, 1991.
    Filed July 25, 1991.

      John M. Eakin, Asst. Dist. Atty., Carlisle, for the Com., appellant.
    Hubert X. Gilroy, Carlisle, for appellee.
    Before OLSZEWSKI, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from an April 30, 1990 Order suppressing physical evidence obtained as a result of a purportedly faulty search warrant. The relevant facts are as follows.

On October 13, 1989, Officer Steven Resser of the East Pennsboro Police Department and Special Agent Jeffrey Mohn of the Pennsylvania State Attorney General’s Office met with a confidential informant, Scott Ohler, to discuss illegal narcotic sales made by appellee, Robert Charles Grubb, Jr., the target of an ongoing police investigation. The focus of the interview and investigation was drug sales allegedly being conducted out of appellee-Grubb’s 829 S. Humer Street home in East Pennsboro, Cumberland County, Pennsylvania.

Commencing at approximately 9:45 p.m., with Ohler’s consent to interception of a phone call, Fairview Township Police Detective Ronald Diller telephoned appellee’s residence several times. The phone calls were received by appellee’s son, Robert Grubb, III. A transcript of the telephone calls admitted into evidence, albeit cryptic, discloses that informant Ohler and appellee’s son discussed completing a drug transaction upon the expected arrival of a drug shipment to appellee’s home that evening. In a phone call placed at approximately 1:00 a.m., Ohler was informed by Grubb the shipment had arrived. Ohler then made plans with Grubb to immediately go to appellee’s home to purchase drugs.

Based on this evidence, the officers secured a night time search warrant from District Justice Ronald Klair. The probable cause affidavit, the subject in dispute in this case, states the following:

That your affiant Steven Resser has been a police officer for over 15 years and has perticipated (sic) in excess of 20 drug related investigations. Your Co-affiant has been a drug agent for over 8 years and has been involved in excess of 400 drug investigations and in excess of 20 search and seizure warrants.
That on 10/18/89 your affiant interviewed a confidential informant who stated that he has within the past 48 hours been to the residence of Robert Grubb and did at that time observe in excess of one ounce of marihuana and in excess of 10 grams of hashish. The confidential informant advises that he has purchased controlled substances from Robert Grubb Jr. at least 25 times over the past several years and has had personnal (sic) knowledge of at least one occasion when Robert Grubb Jr. had in his possession over 20 pounds of marihuana.
That on 10/13/89 and within the past 10 hours the confidential informant under the direction of your co-affiant Jeffrey Mohn and Det. Ronald Diller of Fairview Twp. Police, placed a telephone call to Mr. Robert Grubb, Jr. During the call Robert Grubb Jr. advised the confidential informant that he could obtain controlled substances at Robert Grubb Jr.’s residence, 829 S. Humer St, E. Pennsboro Pa. The C/I was advised to come to the residence for the drugs.
That your affiant and Co-affiant report that it is a normal occurance (sic) for those involved in drug trafficking to keep firearms at or near the location where drugs are kept. In addition controlled substances can be readly (sic) destroyed in the event the person(s) involved in drug trafficking become alarmed to the presence of police. For the purpose of officer safety and to prevent the destruction of evidence, your affiant respectfully requests that a no-knock search warrant be issued. Your affiant and co-affiant additionally report that when drugs are present and drugs are being sold or used the drugs can be sold very quickly. In order to prevent the controlled substances at the Grubb residence from being sold or used your affiant requests that a night time search warrant be granted so that the information in this affidavit can be acted on immeaditally (sic).

(Search warrant, Record at pp. 4-5.)

After securing the search warrant, the Tri County Narcotics Task Force, composed of state and local authorities, conducted a raid on the appellee’s home. Pursuant to the warrant, the police did not knock or announce their identity or purpose, but rather broke down the door without allowing appellee the opportunity to voluntarily surrender the premises. Inside, the police at once announced their identity. Police recovered from the premises a crossbow, an unloaded 12 gauge shotgun as well as an unloaded .45 caliber automatic handgun with loaded clips near appellee’s bed. A stash of cocaine and marijuana, as previously referred to in the phone conversations between Ohler and Grubb, was recovered from inside the-premises, in addition to a scale containing suspected cocaine residue.

On the basis of its finding Pa.R.Crim.P. 2007, Manner of Entry Into Premises, had been violated, the trial court suppressed all the aforementioned evidence as fruit of an illegal search. It is this suppression Order which is now challenged by the Commonwealth.

Our standard of review on appeal from a suppression ruling is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are in error. Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987). Rule 2007, supra, provides in relevant part:

(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.

Pa.R.Crim.P. 2007(a) (emphasis supplied). We hold the statement of probable cause, on its face, provided an insufficient statement of reliable exigent circumstances to allow an unannounced entry into appellee’s home.

While the Commonwealth argues that had the officers knocked and announced themselves and their purpose, they would have alerted appellee to refuse police entry and given him the opportunity to stall for time and destroy the drugs on the premises, this is pure speculation. Noncompliance with the requirement police officers give notice of their identity and purpose before attempting to enter private premises may be justified if the occupant is fleeing or attempting to destroy evidence or if the police are virtually certain the occupant is already aware of their purpose. However, the mere fact that the evidence being sought is easily destroyed does not suspend the requirement. There must be some affirmative indication to support a belief the evidence is being destroyed. Commonwealth v. Clemson, 234 Pa.Super. 191, 338 A.2d 649 (1975). The fourth amendment requires the police to knock and identify themselves and only if their calls are not answered within a reasonable time under the circumstances may force then be used to enter. While there is no constitutional requirement that police afford suspects a reasonable opportunity to destroy evidence, it is only when police actually have reason to believe the evidence is being destroyed while they wait outside the door that they may forcibly enter the premises. Commonwealth v. Early, 236 Pa.Super. 60, 345 A.2d 197 (1975). In the case sub judice, there is no showing the police believed destruction of the evidence was imminent, thus justifying the waiver of the knock and announce rule.

The Commonwealth asserts a knock and announce entry by police would allow the suspected drug dealers the opportunity to arm themselves against police intrusion thereby imperiling the police officers’ safety. They base this argument on the inherent danger armed drug dealers pose to police, as well as the officer’s experience in conducting drug raids. Under limited circumstances, the knock and announce rule has been disregarded where police had reason to believe announcement prior to entry would imperil their safety. See Morgan, supra; Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982); Commonwealth v. Johnson, 223 Pa.Super. 83, 289 A.2d 733 (1972). However, in this case, to accept the Commonwealth’s argument is to recognize a presumption whereby exigent circumstances sufficient to do away with the knock and announce rule would exist any time a search for drugs is conducted. We would, in effect, be taking judicial notice of the fact that drug dealers customarily carry weapons and, therefore, any search of a suspected dealer’s operating base would necessarily endanger the investigating officers. We are unwilling to create this presumption. Such a fundamental change in the knock and announce rule should not be made by judicial determination based on allegations in a particular case but must be addressed in careful and studied deliberation by the legislature. Vague allegations in a probable cause affidavit to a magistrate do little to protect the arresting officer and weaken the safeguards provided to the citizenry by the Constitution. The right, on the scene, under exigent circumstances, to break in unannounced recognizes that the peril to an officer serving a warrant is ever present and he must be able to protect himself. This usually can be done only at the time the warrant is being executed. The circumstances where verified and detailed information is supplied to the magistrate regarding the existence of weaponry which would present unusual danger to the searching officer, thereby permitting authorization of a no-knock entry, need not be considered here as the facts do not warrant it.

To excuse the officers’ failure to announce their identity, purpose and presence and, thereafter, to excuse the necessity of a reasonable passage of time allowing for the voluntary surrender of the premises, there must be more than the presumption that the evidence would be destroyed merely because it could easily be accomplished. See Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). The argument could be made that contraband would be destroyed in every case where it was possible when the actor was aware that search or arrest was imminent. Accordingly, the police failure to announce their identity and allow a reasonable time for the voluntary surrender of the premises will not be excused on the mere presumption drug raids are dangerous and deadly weapons may be used. The fact evidence may be destroyed, or police may be in danger, does not justify the suspension of the fourth amendment. One of the prices we must pay for the security which the fourth amendment bestows upon us is the risk that, occasionally, drug dealers will go free. See generally Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968).

The Commonwealth’s final argument is the police reasonably relied in good faith on the independent judicial determination of the issuing magistrate. Therefore, the Commonwealth argues, the police should not be penalized for relying upon the express authorization of a judicial officer. While this argument has serious merit under rulings promulgated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), unfortunately for the Commonwealth, the Pennsylvania Supreme Court has taken a more restrictive view of the good faith doctrine. We are bound to follow the recent decision of this Commonwealth’s Supreme Court in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), which has effectively terminated the use of the “good faith” exception by police in Pennsylvania. Accordingly, we affirm.

Order affirmed.

Concurring opinion by BECK, J.

BECK, Judge,

concurring:

I concur in the decision of the majority affirming the suppression of evidence obtained during the search of appellee’s residence. The Commonwealth asserts, and I agree, that the primary issue in this case is whether a judicial officer has the authority under Pennsylvania law to issue a “no-knock” search warrant. I write separately because the majority does not address this issue. The majority concludes that “authorization of a no-knock entry, need not be considered here as the facts do not warrant it.” (Majority Opinion, at 84).

The underlying facts of the instant case are not in dispute. Based upon reliable information obtained from a confidential informant implicating appellee in the sale and distribution of illegal drugs, the police requested a warrant to search the residence of appellee. The affidavit requested that a search warrant be issued allowing both a nighttime and “no-knock” search. The district justice approved the warrant.

The police thereafter executed the search warrant by entering appellee’s home at approximately 1:00 a.m., without first knocking. The police did not announce their authority, that they had a search warrant, or the purpose for their entry. The police uncovered and seized various quantities of cocaine and marijuana, drug paraphernalia, and various firearms. (N.T. for Suppression Hearing held on April 11, 1990, at 7-8).

Appellee filed a motion to suppress all evidence obtained in the search, arguing that the search was executed in violation of Pa.R.Crim.P. 2007, the “knock and announce” rule. Following an evidentiary hearing, the suppression court granted appellee’s motion. The suppression court held that the Pennsylvania Rules of Criminal Procedure provide no authority for a judicial officer to make a determination of exigent circumstances prior to the execution of the search. Therefore, the district justice who issued the instant warrant had no authority to grant a “no-knock” search warrant. (Trial Court Opinion, at 5-6). As such, the court concluded that in the absence of exigent circumstances, the execution of the search warrant, without first knocking and announcing violated Pa.R.Crim.P. 2007. As a consequence the court suppressed all evidence seized during the search.

On appeal the Commonwealth raises three issues: (1) whether a judicial officer has the authority to issue a warrant that dispenses with the knock and announce requirement provided under Pa.R.Crim.P. 2007; (2) whether sufficient evidence was presented at the suppression hearing to conclude the existence of exigent circumstances justified immediate forcible entry into appellee’s home; and (3) whether suppression is the appropriate remedy where the police rely in good faith on the judicial officer’s grant of a “no-knock” search warrant.

Chapter 2000 of the Pennsylvania Rules of Criminal Procedure outlines the requirements for requesting, issuing and executing search warrants. Of particular importance to our rationale in finding no support for “no-knock” warrants are Rule 2006 which describes the information that must be included in the application for a warrant and Rule 2007 which dictates standards to be followed by the police in executing the search warrant.

Rule 2007 provides:

(a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.
(b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry.
(c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

Pa.R.Crim.P. 2007 (emphasis added). Neither Rule 2006, Rule 2007, nor any other Rule in Chapter 2000 contains language authorizing a judicial officer to grant a “no-knock” search warrant.

The language of Rule 2007 is explicit and clear. The police must give notice of their identity, authority, and purpose, and must wait a reasonable period of time for a response, prior to forcing entry into the specified premises. The Rule permits one exception to the general rule requiring notice, i.e., if the police believe exigent circumstances exist, they may enter without notice, immediately and forcibly. I conclude where the Rule intends to make an exception, it does so with particularity. Therefore, no authorization for “no-knock” searches can be found in Rule 2007. By the same reasoning, authority for “no-knock” entry can not be read into Rule 2006. Rule 2006 is primarily a codification of the “particularity” dictates of the fourth amendment. The rule is highly specific. For example, Rule 2006(g) carefully delineates the conditions under which “nighttime” searches are permitted.

Equally important, I find that policy considerations favor the prohibition of “no-knock” warrants. Foremost among these considerations is the fact that the fourth amendment permits only reasonable searches and seizures, and that long-held notions of reasonableness include the requirement that officers expressly announce their purpose and authority prior to effecting entry to execute a warrant. Fundamental minimum requirements of reasonableness must accompany every search including those upon the premises of a known offender. The Supreme Court stated the basis for this requirement as follows:

The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application____ Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house.

Miller v. U.S., 357 U.S. 301, 313, 78 S.Ct. 1190, 1198, 2 L.Ed.2d 1332 (1958).

The purpose of notice is to decrease the potential for violence. An unannounced entry by the police might trigger an occupant to respond in a violent manner. Parsons, 391 Pa.Super. at 277-79, 570 A.2d at 1331. Furthermore, notice is necessary as a protection of privacy in that it minimizes the chance of police entering the wrong premises. In addition, notice minimizes the likelihood of physical destruction to the premises to be entered. If an occupant is informed of the police's presence and purpose, the possibility is increased that he or she will open the door in response to notice, and that the police will not have to use force.

On the other hand, although anxious to protect individual liberties, courts cannot show themselves to be “unaware of the practical demands of effective criminal investigation and law enforcement.” Elkins v. U.S., 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960). Therefore, although notice should routinely be given, we recognize that, in certain circumstances, giving notice increases the danger to persons and increases the risk of destruction of evidence. In these cases notice should not be required. It is this rationale which has created the exigent circumstances exception to the notice rule. However, the “no-knock” warrant advocated by the Commonwealth would permit the issuing authority to determine that exigent circumstances exist at the time the warrant is issued. In my view exigent circumstances by their very nature cannot usually be predetermined. The facts that exist at the time of the issuance of the warrant may no longer exist at its execution. The immediate perception and knowledge of the officer at the scene is ordinarily essential to determine whether notice is required. See Parsley v. Superior Court of Riverside Cty., 9 Cal.3d 934, 109 Cal.Rptr. 563, 513 P.2d 611 (1983); State v. Eminowicz, 21 Ariz.App. 417, 520 P.2d 330 (1974). Even in those jurisdictions which approve the issuance of “no-knock” warrants, the officer still is required to reevaluate the existence of exigent circumstances at the scene.

The valid execution of the “no-knock” warrant is dependent on the contemporaneous existence of exigent circumstances, which must be evaluated afresh at the time of execution. Under these circumstances, unless the police willfully ignored the continuing requirement of exigent circumstances, the availability of the “no-knock” warrant adds little, if anything, to the police officer’s options.

Moreover, I cannot conclude that adherence to Rule 2007 overly inhibits police in the safe and workable execution of search warrants. Upon reviewing the relevant Pennsylvania case law, I find that in order to minimize danger and destruction of evidence the police currently are given wide latitude in deciding at the scene whether exigent circumstances exist. Furthermore, the “reasonable period of time” the police must wait to enter after notice is given is extremely short. See, e.g., Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982); Commonwealth v. Parsons, 391 Pa.Super. 273, 277-79, 570 A.2d 1328, 1331; Commonwealth v. Burstin, 259 Pa.Super. 584, 393 A.2d 979 (1978); see also Commonwealth v. Eliff 300 Pa.Super. 423, 438-44, 446 A.2d 927, 935-38 (1982). Considering the extensive case law that liberally defines “exigent circumstances,” and “reasonable period of time,” I conclude that law enforcement officers are given broad latitude in the execution of search warrants. Within this bounded discretion, law enforcement officers are capable of effectuating search warrants so that personal injuries to either the occupants of a premises or to the police can be minimized and potential destruction of evidence can be forestalled.

The Commonwealth supports its position by referring to case law in sister states that permit “no-knock” warrants. (Appellant’s Brief, at 7-8). I note that these jurisdictions holding that, in the absence of a procedural rule or legislative enactment, a magistrate can issue a “no-knock” warrant are in the distinct minority. LaFave, 2 Search and Seizure § 4.8(g).

Moreover, in the jurisdictions cited by the Commonwealth, the prime reason offered for allowing a magistrate to issue “no-knock” search warrants is because “the informed and deliberate determination of a magistrate” is preferred to the often rushed response of a police officer. Commonwealth v. Scalise, 387 Mass. 413, 439 N.E.2d 818 (1982). While this analysis is proper when deciding whether probable cause exists to issue a warrant, the rationale fails when it is applied to the decision whether exigent circumstances exist such that “immediate forcible entry” is required. The conditions and circumstances justifying an “immediate forcible entry” can only be made at the scene, prior to the time of entry. Parsley v. Superior Court of Riverside Cty., 9 Cal.3d 934, 940, 109 Cal.Rptr. 563, 566, 513 P.2d 611, 614 (1973).

The Commonwealth also contends that sufficient evidence was presented at the suppression hearing to establish that exigent circumstances did exist which warranted immediate forcible entry into appellee’s home. (Appellant’s Brief, at 15-16). As explained by the Commonwealth, “[b]y knocking and announcing themselves and their purpose, the police would have alerted the defendant to refuse the police entry and to stall for time to destroy the drugs on the premises, ... [and to] arm himself against police intrusion.” Id. at 15. The trial court held that although the police explained their general concerns regarding destruction of evidence and danger to their well being, they did not describe any specific or particular facts relating to the search of appellee’s home. (Trial Court Opinion, at 11). The trial court therefore held there was inadequate evidence to establish that the police reasonably believed exigent circumstances existed immediately prior to their forced entry of appellee’s home. I agree with the trial court.

In essence, the Commonwealth requests our recognition of a “blanket rule” that because illegal drugs are involved in a search, exigent circumstances necessarily also exist. I have found no Pennsylvania case law, and the Commonwealth refers us to no authority, holding that because illegal drugs are expected to be discovered during a search, exigent circumstances presumptively exist. Our supreme court has in fact held that generalized expressions of exigencies will not, standing alone, support dispensing with the knock and announce rule. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). Because the Commonwealth in the instant matter could only point to the general information that this search involved illegal drugs, the suppression court correctly concluded there were insufficient particularized facts to establish the existence of exigent circumstances.

The police in the instant case entered appellee’s home without first knocking and announcing their identity, authorization and purpose, and did not present sufficient specific evidence to establish the existence of exigent circumstances. Therefore, I agree with the majority that exclusion of the evidence obtained in the instant search is mandated. Additionally, I conclude that under current Pennsylvania law, a judicial officer is not authorized to issue a search warrant that dispenses with the Pa.R.Crim.P. 2007 knock and announce requirement.

I concur.

      . We agree with the trial court's finding wherein the court states: "While the conversation was somewhat cryptic, it is clear that both Mr. Ohler and Mr. Grubb were discussing the purchase of a substance which neither of them wished to name over the telephone.” (Slip Op., Hess, J., 4/30/90, p. 2.) We note "hashish” was specifically referred to at one point in a conversation.

      . We would not reach the issue proposed by the Concurring Opinion that Pennsylvania law does not permit a warrant containing a no knock search provision under all circumstances. That issue is not ripe for disposal here and the Concurring Opinion propounds dicta when it attempts to resolve that issue. The rapidly shifting balance in the application of search and seizure principles to recent cases requires that we not extend our holdings beyond what is necessary to resolution of the issue at hand. It is difficult to say how an issuing authority should rule in the case of known terrorists, revolutionaries and drug cartel members.

      . Special Agent Mohn testified that he has been a narcotics agent since 1982 and a patrol officer prior to that. He conservatively estimated that in over 200 searches in which he was involved, weapons were seized in 90 per cent of the cases. In over half of the searches, loaded weapons were readily available to whomever would go after them.

      . "This [Pennsylvania Supreme] Court has long emphasized that, in interpreting a provision of the Pennsylvania Constitution, we are not bound by the decisions of the United States Supreme Court which interpret similar (yet distinct) federal constitutional provisions." Commonwealth v. Edmonds, 526 Pa. 374, 586 A.2d 887, 894. See cases cited therein, including PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987); and Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), which states: "This Court has not hesitated to interpret the Pennsylvania Constitution as affording greater protection to defendants than the federal Constitution. Id., 504 Pa. at 64, 470 A.2d at 467.

      . The affidavit presented by the police officers requested authorization for night time execution and authorization for execution without knocking and announcing because controlled substances were expected to be uncovered during the search. Specifically, the police stated on the affidavit continuation sheet
      [t]hat your affiant and co-affiant report that it is a normal occurance [sic] for those involved in drug trafficking to keep firearms at or near the location where drugs are kept. In addition controlled substances can be readly [sic] destroyed in the event the person(s) involved in drug trafficking become alarmed to the presence of police. For the purpose of officer safety and to prevent the destruction of evidence, your affiant respectfully requests that a no-knock search warrant be issued. Your affiant and co-affiant additionally report that when drugs are present and drugs are being sold or used the drugs can be sold very quickly. In order to prevent the controlled substances at the Grubb residence from being sold or used your affiant requests that a night time search warrant be granted so that the information in this affidavit can be acted on immeaditally [sic].
      (Certified Record, at 5).

      . One police officer testified at the suppression hearing that they announced they were the police "[a]s we went through the front door.” (N.T. for Suppression Hearing held on April 11, 1990, at 6). The police officer noted however, that the front door was forced open in order to gain access to appellee’s home. Id. Even if this testimony satisfied the Rule’s requirement that the police announce their "identity” before entry, there was no testimony that the police announced their authority or purpose for forcefully entering appellee’s home when they entered appellee’s home. See Commonwealth v. Newman, 429 Pa. 441, 444, 240 A.2d 795, 796-97 (1968).

      . With respect to the existence of exigent circumstances, the suppression court noted that the Commonwealth’s only evidence was a "general concern[ ] about the presence of weapons and the destruction of evidence^] there was no specific evidence in this case with regard to those concerns." (Trial Court Opinion, at 11).

      . Rule 2007 codifies the announcement requirement created by the fourth amendment of the United States Constitution. Commonwealth v. Golden, 277 Pa.Super. 180, 184, 419 A.2d 721, 723 (1980). The purpose of the knock and announce rule is “to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectation against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry.” Commonwealth v. Morgan, 517 Pa. 93, 97, 534 A.2d 1054, 1056 (1987); Commonwealth v. Parsons, 391 Pa.Super. 273, 278, 570 A.2d 1328, 1331 (1990).

      . Pa.R.Crim.P. 2006(g) provides “[i]f a ‘nighttime’ search is requested (i.e., 10 p.m. to 6 a.m.), state additional reasonable cause for seeking permission to search in nighttime.”

      . The Commonwealth cites several jurisdictions that permit “no-knock” warrants, see infra. Each of these jurisdictions hold that even if a "no-knock” search warrant is issued, the police must still reconsider the circumstances immediately prior to execution of the warrant. See, e.g., State v. Cleveland, 118 Wis.2d 615, 626-27, 348 N.W.2d 512, 519 (1984); Commonwealth v. Scalise, 387 Mass. 413, 421-22, 439 N.E.2d 818, 823 (1982); State v. Lien, 265 N.W.2d 833, 839 (Minn. 1978).

      . As noted by LaFave, "[t]he prevailing but not unanimous view is that a magistrate may not issue a so-called no-knock search warrant in the absence of ... a statutory provision." LaFave, 2 Search and Seizure § 4.8, at 287 (footnote omitted).

      . As noted by this court in Commonwealth v. Parsons, a review of the procedure followed in executing a search warrant centers on what the police reasonably believed at the scene when they were executing the search warrant. 391 Pa.Super. at 281-82, 570 A.2d at 1333 (citing Ker v. California, 374 U.S. 23, 41 n. 12, 83 S.Ct. 1623, 1633-34 n. 12, 10 L.Ed.2d 726 (1963)).

      . The last argument raised by the commonwealth, that the police relied in good faith on the warrant issued by the district justice, is thoroughly addressed by the majority’s reference to Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). I completely join in the majority’s analysis of this issue.


source: Caselaw Access Project

author: ROWLEY, President Judge.

license: Public Domain

text:
    595 A.2d 141
    COMMONWEALTH of Pennsylvania v. James GAINES, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 8, 1991.
    Filed July 25, 1991.

      Jeremy C. Gelb, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

      Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ.
   ROWLEY, President Judge.

James Gaines appeals from the judgment of sentence entered July 11, 1990 in the Court of Common Pleas of Philadelphia County. He raises the following two issues in this appeal: (1) whether the trial court erred in denying appellant’s motion to dismiss under Pa.R.Crim.P. 1100(d) where more than 120 days elapsed from the date his case was remanded by the Superior Court for retrial, and (2) whether the trial court erred in its instructions to the jury regarding appellant’s alibi defense. After considering these issues, we affirm the judgment of sentence.

The following occurrences led to the filing of charges against appellant. On December 16, 1985, appellant was informed by his stepson, Michael Harris, that appellant’s estranged wife, Hattie Gaines, would not speak with him as he had requested. Appellant reportedly stated, “If she didn’t want to see me then whatever happens will be on her.” In the early morning hours of December 17, 1985, Anthony Harris, Mrs. Gaines’ other son, awoke to the sound of a crash in the livingroom of his apartment. He heard a car with a loud muffler driving away and noted that it sounded like the car his stepfather had been driving. He then saw flames coming from behind a stereo which was in front of a window. After extinguishing the fire, he called the police. During a subsequent investigation, a broken bottle and a wick were found on the floor of the livingroom. The fire marshall determined that the fire was of incendiary origin.

Shortly after the fire, Michael Harris went to visit his mother and informed her that appellant had firebombed.the apartment. Mrs. Gaines then telephoned appellant and asked him why he was trying to kill her children. According to Mrs. Gaines, appellant responded with a death threat to her entire family. Approximately twenty minutes later, appellant appeared at Mrs. Gaines’ home and threatened her family again. Mrs. Gaines’ stepdaughter called the police who arrested appellant about two blocks away from Mrs. Gaines’ home. The police officer reported that the car which appellant was driving smelled like gasoline, and it was later determined that items of clothing confiscated from the car contained gasoline.

Appellant testified that he was asleep in his sister’s home at the time the apartment was firebombed. He also testified that, after his wife called him and he heard how hysterical she was, he drove to her home to make sure that she was alright. Janet Gaines, appellant’s sister, and Humphrey Conix, Janet’s boyfriend, both corroborated appellant’s alibi. Elbert Williams, one of appellant’s friends, testified that he had loaned his car to appellant on the night in question and that previously, after working on the engine of the car, he had poured gasoline on some clothing in order to clean his hands and had put the clothing into the car when he was finished.

Appellant was first tried on June 11, 1986. However, after the jury began deliberating, the trial judge declared a mistrial when one of the jurors informed the forewoman that she knew both appellant and his wife. Appellant filed a motion seeking discharge on the grounds that retrial was barred by double jeopardy. On April 27, 1987, the trial court denied this motion, and appellant filed an appeal in this Court. On March 29, 1989, a panel of this Court affirmed the trial court’s order denying appellant’s motion. The record was returned to the Court of Common Pleas on May 2, 1989. The administrator of the Court of Common Pleas received the record on May 11, 1989. He listed appellant’s case for trial on September 7, 1989 which was the earliest possible date consistent with the trial court’s schedule.

On September 7, 1989, the case was continued until September 12 because the trial court was engaged in a jury trial. On September 12 and September 13, defense counsel requested continuances. On September 18, 1989, the trial court denied appellant’s pretrial motions, including his motion to dismiss under Pa.R.Crim.P. 1100, and the case proceeded to a jury trial. Appellant was convicted of four counts of aggravated assault, and one count each of risking a catastrophe, recklessly endangering another person, arson, and possessing an incendiary device. Trial counsel filed timely post-verdict motions. Present counsel then entered his appearance and argued those motions. After denying the motions, the trial court sentenced appellant to an aggregate term of imprisonment of thirty-two and one-half to sixty-five years. Appellant then filed this timely appeal.

In his first issue, appellant contends that he was entitled to be discharged because he was not tried within 120 days after the date his case was remanded by this Court for retrial. The record was remanded to the trial court on May 2, 1989. Accordingly, pursuant to Rule 1100(d)(2), the mechanical run date was August 30, 1989. The case was originally listed for trial on September 7, 1989, eight days after the mechanical run date. At the hearing on appellant’s pretrial motions, the court administrator testified that September 7 was the earliest available trial date consistent with the business of the court. Notes of Testimony (N.T.) 9/18/89 at 91, 92. Furthermore, the administrator testified that September 7 was the earliest date for which a public defender was available. N.T. 9/18/89 at 92, 93.

Clearly, the delay was not caused by a lack of due diligence on the part of the Commonwealth, but rather, congested court dockets. In this situation, the trial court is not automatically obligated to rearrange its docket to accommodate Rule 1100 run dates. Commonwealth v. Wamsher, 395 Pa.Super. 384, 399, 577 A.2d 595, 602 (1990). “While the trial court may be required to rearrange its docket, if possible, when judicial delay has caused a lengthy postponement beyond the period prescribed by Rule 1100, ... it should not be required to do so to avoid a delay of under 30 days as here.” Commonwealth v. Crowley, 502 Pa. 393, 403, 466 A.2d 1009, 1014 (1983) (footnote omitted). In the present case, the eight-day delay was not so lengthy that the trial court was required to rearrange its docket so that appellant would be tried within the 120 day period.

Furthermore, we reject appellant’s argument that “[i]t [was] incumbent upon the Commonwealth to file a timely petition for extension of time pursuant to Rule 1100(c) in the event overcrowded dockets or courtroom unavailability threatened] to delay trial.” Appellant’s Brief at 3. When Rule 1100 was amended, with an effective date of December 31, 1987, the subsection upon which appellant relies was deleted. In addition, the cases which appellant cites to support this argument were decided before the amendments took effect. Nothing in the present rule requires the Commonwealth to file a petition to extend in this situation. The case was listed for trial on the first available date and the Commonwealth was prepared to proceed to trial on that date. For the above reasons, we affirm the order of the trial court denying appellant’s motion to dismiss pursuant to Rule 1100.

In his second issue, appellant contends that the trial court erred in its instruction to the jury regarding appellant’s alibi defense. Appellant cites Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980) in support of his argument. In Pounds, the defendant challenged the absence of an alibi instruction. The Supreme Court held that when a defendant presents alibi evidence he is entitled to an instruction to the jury that it should acquit the defendant “if [his] alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime at the time of its commission and, thus, of his guilt.” Id., 490 Pa. at 633, 417 A.2d at 603 (footnote omitted). Appellant contends that the instruction at issue here was inadequate because it did not contain the “if not wholly believed” language of Pounds. This argument has been unsuccessful in the many cases in which this Court has considered it, such as Commonwealth v. Jones, 386 Pa.Super. 467, 563 A.2d 161 (1989), allocatur granted, 525 Pa. 632, 578 A.2d 926 (1990), in which an en banc panel of this Court held the following:

[A] trial court alibi charge will not per se be deemed erroneous for failing to parrot the language of the Pounds Court. Rather, what is required of the trial court is that it make clear to the jury that the defendant’s failure to prove alibi is not tantamount to guilt.

Id., 386 Pa.Superior Ct. at 472, 563 A.2d at 163. See also Commonwealth v. Woods, 394 Pa.Super. 223, 575 A.2d 601 (1990); Commonwealth v. Payne, 385 Pa.Super. 9, 559 A.2d 951 (1989); Commonwealth v. Bright, 361 Pa.Super. 261, 522 A.2d 573 (1987), allocatur denied, 517 Pa. 597, 535 A.2d 1056 (1987); Commonwealth v. Quarles, 361 Pa.Super. 272, 522 A.2d 579 (1987), allocatur denied, 517 Pa. 592, 535 A.2d 82 (1987); Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984).

In the present case, the trial court gave the following instruction:

Now, members of the jury, obviously the defendant cannot be guilty unless he was at the scene of the alleged crime. Now, you heard from the defendant and from his witnesses and they offered evidence to show that he wasn’t present and you’ll recall what they said. You should consider this evidence along with all other evidence in the case in determining whether or not the Commonwealth has met its burden of proving beyond a reasonable doubt that a crime was committed and that the defendant himself committed those crimes. The defendant’s evidence that he was not present, either itself or together with other evidence, may be sufficient to raise a reasonable doubt of his guilt in your minds. If you have a reasonable doubt of the defendant’s guilt you must find him not guilty.

N.T. 9/25/89 at 98. This instruction is basically identical to those instructions given in the abovementioned cases. Similarly, it was proper as it informed the jury that the Commonwealth retained the burden of proof and that appellant’s alibi evidence should be considered to determine whether the Commonwealth met its burden. See Jones, supra, 386 Pa.Superior Ct. at 472, 563 A.2d at 163. We therefore conclude that the trial court did not err in its instruction regarding appellant’s alibi defense. For the above reasons, the judgment of sentence is affirmed.

Judgment of sentence affirmed.

      . We disagree with the trial court that the date which the court administrator actually received the case is the applicable date on which to commence the running of the 120 days. See Trial Court Opinion 11/9/90 at 5. This determination is in disregard of the clear language of Rule 1100 which provides in relevant part the following:
      When an appellate court ... has affirmed an order of a trial court granting a new trial, the new trial shall commence within one hundred and twenty (120) days after the appellate court remands the record to the trial court____ The date of remand shall be the date as it appears in the appellate court docket.
      Pa.R.Crim.P. 1100(d)(2). The docket entries clearly show that the record was returned to the jurisdiction of the trial court on May 2, 1989 which is therefore the applicable starting date for the computation of time under Rule 1100.

      . Appellant does not take issue with the delay between the initial listing, September 7, 1989, and the date on which trial actually commenced, September 18, 1989, as this delay was due to the trial court's and defense counsel’s unavailability.

      . Because appellant’s case was remanded for a new trial and a new period commenced running after this effective date, appellant’s claim is governed by the amended rule. See Wamsher, supra (holding that the amendments to Rule 1100 apply to a case which is pending so long as the applicable run date under the former version did not expire before the effective date of the amendments.).

      . We also note that those portions of the Comment following the rule which discuss former subsection (c) are now obsolete.

      . In making this determination, we are cognizant of a recent Supreme Court decision, Commonwealth v. Browne, 526 Pa. 83, 584 A.2d 902 (1990), in which the Supreme Court stated the following:
      [W]e have become concerned that the Superior Court is more and more inclined to accept any and every excuse for failure to bring a criminal case to trial within the period prescribed by Rule 1100, and ... this case presented the opportunity to prevent further emasculation of Rule 1100.

        Id., 526 Pa. at 89, 584 A.2d at 905. In Browne, however, the delay was caused by a lack of due diligence on the part of the Commonwealth, unlike the present case which involves an issue of judicial delay.

      . Appellant also cites Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989) in support of his argument that the trial court was required to incorporate the “even if not wholly believed” language of Pounds. In Willis, however, the trial court “made only fleeting references to the existence of an alibi defense. On appeal, the Supreme Court did not address the adequacy of the standard jury instruction.” Commonwealth v. Weinder, 395 Pa.Super. 608, 621, 577 A.2d 1364, 1371 (1990). See also Commonwealth v. Lott, 392 Pa.Super. 371, 374, 572 A.2d 1279, 1280 (1990) (.“Willis does not stand for the proposition that a jury instruction on alibi which fails to include the phrase 'even if not wholly believed’ warrants a new trial____”). Because the Supreme Court did not address the adequacy of the standard instruction such as the one given in the present case in either Pounds or Willis, we do not agree with appellant that the Superior Court, in holding that the “even if not wholly believed" language is not required, has "overrule[d], dilute[d] or ignore[d] a decision of the Supreme Court of Pennsylvania.” Appellant's Brief at 9.


author: ROWLEY, President Judge:

text:
    595 A.2d 145
    E. Cy GURENLIAN, Appellant, v. George GURENLIAN and Pamela Gurenlian. (Two Cases)
    Superior Court of Pennsylvania.
    Argued May 9, 1991.
    Filed July 25, 1991.

      Bill W. Bodager, Media, for appellant.
    William Luskus, Media, for appellees.
    Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ.
   ROWLEY, President Judge:

These consolidated appeals arose from two separate actions brought by E. Cy Gurenlian (“Appellant”) against his son and daughter-in-law, George and Pamela Gurenlian. The appeal which is docketed in this Court as No. 2357 Philadelphia 1990 involves the amount of prejudgment interest to be awarded appellant on a constructive trust imposed in his favor on appellees’ real estate. The appeal docketed in this Court as No. 1940 Philadelphia 1990 involves the statute of limitations in appellant’s action for repayment of an alleged loan to appellees. On October 12, 1990, these appeals were consolidated for our review. The pertinent factual and procedural history of each appeal is as follows.

I. FACTUAL HISTORY

A. Appeal at No. 2357 Philadelphia 1990

In 1982, appellant and his two sisters sold their interest in property located on Valley View Road to appellant’s son and daughter-in-law, George and Pamela Gurenlian. Pamela typed the agreement of sale which reflected a total purchase price of $45,000.00, consisting of $5,000.00 in cash to appellant and purchase money mortgages of $20,000.00 to each of appellant’s sisters. The settlement sheet, however, indicated consideration of $20,000.00 in purchase money mortgages to each sister, but no consideration to appellant. After George and Pamela moved into the Valley View Road property, appellant ate and slept there approximately three times a week from 1982 to 1985. In early 1985, a dispute arose between George and appellant. On May 1, 1985, George notified appellant by certified letter that he would have to vacate the property on Valley View Road.

On August 12, 1985, appellant brought a suit in equity against George and Pamela and requested that the court establish a constructive trust in his favor. The trial court imposed a constructive trust on appellant’s behalf in the amount of $5,000.00. Both parties filed appeals. The Superior Court, in an unpublished memorandum, affirmed the trial court’s judgment establishing a constructive trust on appellant’s behalf, but remanded the case so that the trial court could fashion a decree specifying the manner in which the judgment should be satisfied. 390 Pa.Super. 660, 561 A.2d 824.

On November 1, 1989, the trial court issued an amended decree awarding appellant $6,500.00, which included the $5,000.00 constructive trust plus an award of 6% interest from May 1, 1985, with interest continuing to accrue at the legal rate. Appellant filed a motion to modify the amended decree, but it was denied, and a final order was entered on August 9, 1990. On August 13, 1990, appellant filed an appeal to this Court which has been docketed at 2357 Philadelphia 1990. On appeal, appellant argues that the trial court abused its discretion when it limited the prejudgment interest on the constructive trust to 6%.

B. Appeal at No. 1940 Philadelphia 1990

In June 1982, appellant learned that George and Pamela owed the Internal Revenue Service $5,782.89 in unpaid income taxes. Appellant paid the debt to the I.R.S. for George and Pamela and gave them a receipt. On April 20, 1988, appellant instituted a second action against George and Pamela alleging that they owed him $6,000.00 which he had paid on their behalf to the I.R.S. in 1982. At trial, appellant testified that he had loaned George and Pamela $6,000.00, N.T. 9/7/89, at 7; that there was no oral or written agreement regarding repayment, N.T. 9/7/89, at 7-8; but that appellant understood that George and Pamela would pay him back when they were able, N.T. 9/7/89, at 8; and that George had never tried to pay appellant back, N.T. 9/7/89, at 11, 63. George testified that appellant gave him $4,000.00, N.T. 9/7/89, at 45-46, and that, although George tried to pay appellant back twice in 1982, appellant refused, N.T. 9/7/89, at 47, 51. The trial court found that George attempted to repay the money to appellant but that appellant refused to accept the money and indicated that he did not expect to be repaid. T.C. Op. 12/13/90, at 2.

On November 14, 1989, the trial court concluded that appellant’s claim was barred by the statute of limitations and entered a verdict in favor of George and Pamela. Appellant filed post-trial motions which were denied in an order entered on June 21, 1990. On July 2, 1990, appellant appealed to this Court. The appeal was docketed at No. 1940 Philadelphia 1990. On August 7, 1990, judgment was entered on the trial court’s order of June 21, 1990. On appeal, appellant argues that the trial court erred in holding that appellant’s cause of action was barred by the statute of limitations.

II. APPEAL AT NO. 2357—PREJUDGMENT INTEREST

Appellant first argues that the trial court abused its discretion when it limited the award of prejudgment interest on the constructive trust to the statutory rate of 6%. Our scope of review of an equity matter is very limited. We must accept the trial court’s findings of fact, and cannot reverse the trial court’s determination absent a clear abuse of discretion or error of law. Walley v. Iraca, 360 Pa.Super. 436, 441, 520 A.2d 886, 889 (1987). A final decree in equity “will not be disturbed unless it is unsupported by the evidence or demonstrably capricious.” Sack v. Feinman, 489 Pa. 152, 166, 413 A.2d 1059, 1066 (1980).

The determination of whether to award pre-judgment interest and the rate of such interest is left to the sound discretion of the trial court in equity. Sack v. Feinman, 489 Pa. at 165, 413 A.2d at 1065-66; Park v. Greater Delaware Valley Sav. & Loan Ass’n, 362 Pa.Super. 54, 60, 523 A.2d 771, 774 (1987). A court of equity is not limited to awarding merely the statutory rate of interest, but may award interest above the statutory rate. Ball v. Rolling Hill Hosp., 359 Pa.Super. 286, 302, 518 A.2d 1238, 1246 (1986); Rizzo v. Haines, 357 Pa.Super. 57, 65, 515 A.2d 321, 325 (1986), aff'd, 520 Pa. 484, 555 A.2d 58 (1989). See also Lexington Ins. Co. v. Abington Co., 621 F.Supp. 18 (E.D.Pa.1985); Peterson v. Crown Financial Corp., 553 F.Supp. 114 (E.D.Pa.1982). “The fairest way for a court is to decide questions pertaining to interest according to a plain and simple consideration of justice and fair dealing.” Murray Hill Estates, Inc. v. Bastin, 442 Pa. 405, 411, 276 A.2d 542, 545 (1971) (quoting McDermott v. McDermott, 130 Pa.Super. 127, 130, 196 A. 889 (1938)).

In the instant suit in equity, appellant acknowledges that the rate of pre-judgment interest to be awarded was within the discretion of the trial court. Appellant claims, however, that the trial court, by awarding interest at the statutory rate of six percent, did not exercise its discretion. He contends that an award of prejudgment interest at a rate higher than the statutory rate was necessary to avoid unjust enrichment to George and Pamela. He also contends that the rate of interest awarded to him should have been either 12%, which his two sisters, the noteholders on the property, received or the market rate of interest which he could have earned on his principal. According to appellant, restitution will not be complete until he is awarded either 12% or the market rate of interest.

Appellant relies on both Pennsylvania and federal cases to support his contention that the trial court abused or failed to exercise its discretion in awarding prejudgment interest at only the statutory rate of six percent. However, the cases on which appellant relies are readily distinguishable from the instant case. In Rizzo v. Haines, 357 Pa.Super. 57, 515 A.2d 321, (1986), aff'd, 520 Pa. 484, 555 A.2d 58 (1989), unlike in the instant case, the defendant's conduct was fraudulent. Rizzo involved a legal malpractice action brought by a client against his attorney, who had wrongfully and fraudulently taken $50,000.00 of the client’s money. The trial court awarded the client prejudgment interest at the statutory rate of six percent. The Superior Court ordered the trial court to compute the interest at the market rate. The Supreme Court affirmed the award of interest at the market rate:

Haines must pay interest at the market rate on the $50,000 that he fraudulently induced his client to transfer to him. Courts in this Commonwealth should not permit a person guilty of fraudulently withholding the funds of another to profit therefrom. Accordingly, where funds are wrongfully and intentionally procured or withheld from one who seeks their restoration, the court should calculate interest on these monies at the market rate.

Rizzo v. Haines, 520 Pa. at 508, 555 A.2d at 70 (citations omitted).

In Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980), the defendant fraudulently converted savings bonds placed in trust for the plaintiff. The chancellor declined to award the plaintiff prejudgment interest. The Supreme Court remanded the case to enable the chancellor to make specific findings. The Court concluded that, although the plaintiff was not entitled to prejudgment interest as a matter of right, the chancellor had erred in failing to place on the record findings of fact and conclusions of law from which the Supreme Court could determine whether the chancellor’s denial of prejudgment interest was supported by the evidence or was demonstrably capricious. After remand, the Supreme Court found that the chancellor had abused his discretion in awarding no prejudgment interest, and the Court again remanded the case for the chancellor to determine the rate of prejudgment interest to be awarded. Sack v. Feinman, 495 Pa. 100, 432 A.2d 971 (1981).

In Lexington Ins. Co. v. Abington Co., 621 F.Supp. 18 (E.D.Pa.1985), the defendants, insurance brokers, improperly and intentionally withheld from the plaintiff insurance company premiums received from third persons. Following the entry of a default judgment against the defendants, the plaintiff sought an award of prejudgment interest at the market rate. The trial court exercised its discretion and awarded the plaintiff a delay award calculated at the market rate of interest:

The intentional nature of defendants’ conduct factors significantly in my decision to apply the market rate. Damages for delay or detention serve the two-fold purpose of affording full compensation to an injured plaintiff and providing a disincentive for a defendant to delay and defend a clearly meritorious lawsuit. In this case, I believe those objections will only be fulfilled by application of the market rate of interest as the basis for calculating a delay award.

Lexington, at 21 (citations omitted).

In Peterson v. Crown Financial Corp., 553 F.Supp. 114 (1982), the trial court found that while the defendant/creditor wrongfully retained plaintiff’s money, the plaintiff was forced to borrow additional money paying interest from 8% to 12.5%. In awarding the plaintiff prejudgment interest measured at 2V2% above the prime rate of interest, the trial court noted:

Unless a rate of interest is assessed which is steep enough to force Crown to disgorge any profit it has made by the use of plaintiffs money, and to compensate plaintiff for the costs he encountered as a result of Crown’s action, Crown will have profited from its wrongful act and plaintiff will remain, despite a judgment on the merits, a substantial loser in the controversy.

Peterson, at 116.

The defendants in the instant case, unlike the defendants in Rizzo, Sack, and Lexington did not fraudulently, intentionally, and wrongfully procure or withhold appellant’s money. Further, unlike the plaintiff in Peterson, appellant has not demonstrated that an award of interest at the market rate is necessary either to compensate him for losses sustained or to force the defendants to disgorge profits realized. Rather, appellant has failed to support the allegations of unjust enrichment contained in his appellate brief with any specific factual averments. The trial court noted that “[a] court, in equity, is accorded maximum flexibility in fashioning a remedy appropriate to the particular circumstances of the case.” T.C. Op. 11/8/90, at 2. However, the trial court concluded that appellant “has suggested no reason nor can this court discern any cause for the imposition of interest in excess of the legal rate which is 6%.” Thus, the trial court acknowledged that it could, in its discretion, award interest at a rate higher than 6%. However, it concluded that such an award was not warranted by the evidence in this case. Finding no abuse of discretion, we affirm the order of the trial court.

III. APPEAL AT NO. 1940—STATUTE OF LIMITATIONS

Appellant next argues that the trial court erred in holding that his cause of action for repayment of a loan was barred by the Statute of Limitations. The parties agree that the oral agreement between appellant and George is governed by the following statute of limitations:

§ 5525. Four year limitation
The following actions and proceedings must be commenced within four years:
$ # # * * #
(3) An action upon an express contract not founded upon an instrument in writing.

42 Pa.C.S.A. § 5525(3). The trial court found that appellant’s loan to George was repayable on demand and that, therefore, the “action for repayment would accrue immediately upon lending the money as payment could be requested at any time.” T.C. Op. 12/13/90, at 3. The trial court also noted that, assuming, arguendo, that appellant intended to allow George a reasonable time period before demanding repayment, “a reasonable amount of time expired when the son sold his house and offered to repay [appellant]____ Hence, by the conclusion of 1982, [appellant’s] cause of action ... commenced.” Id. The trial court concluded that, since appellant did not institute the instant action for repayment until 1988, the action was barred by the statute of limitations.

Appellant contends that the statute of limitations did not begin running until 1) a demand for payment was made, 2) a reasonable time had elapsed, or 3) George was able to repay the debt. He further contends that the statute of limitations was tolled when George acknowledged the debt. Finally, he contends that the family and confidential relationship between himself and George estops George from raising the statute of limitations as a bar to the instant action. We will address each of appellant’s contentions seriatim.

A. Commencement of Limitations

Appellant argues that the statute of limitations did not begin to run until a demand for payment was made. “[W]here the contract is to pay on the future performance of a condition ... or at a certain time after demand, there a demand is necessary to a right of action,” and the statute of limitations does not begin running until demand is made. Cook v. Carpenter (No. 1), 212 Pa. 165, 175, 61 A. 799, 803 (1905). “The statute of limitations on a demand note does not begin to run until demand or a payment on principal or interest is made or until judgment is entered on the debt.” Lazzarotti v. Juliano, 322 Pa.Super. 129, 469 A.2d 216 (1983). See also, 51 Am.Jur.2d Limitation of Actions §§ 113, 127; 22 P.L.E. Limitation of Actions, § 68 (1959). In the instant case, there is no evidence in the record, and appellant has referred to none, which indicates that payment was contingent on the occurrence of a condition precedent or of a demand for payment. Unlike the cases of Cook v. Carpenter, supra, and Lazzarotti v. Juliano, supra, the instant case did not involve a promissory note which conditioned repayment on the making of a demand. Rather, the agreement between appellant and George was oral and contained no conditions precedent or terms for repayment. Having carefully reviewed the record, we conclude that the agreement in the instant case was not one where a demand was necessary to perfect a cause of action, and, thus, the running of the statute of limitations was not contingent on a demand being made.

Appellant also argues that the statute of limitations did not begin to run until either a reasonable time had elapsed or George and Pamela had the ability to repay the debt. Appellant notes that other jurisdictions have held that the statute of limitations accrues after a reasonable period of time or when the debtor is able to pay. See Annotation, When Statute of Limitations Begins to Run Against Action Based on Unwritten Promise to Pay Money Where There is No Condition or Definite Time for Repayment, 14 A.L.R.4th 1385, 1386 (1985). Even assuming, arguendo, that the statute of limitations in the instant case commenced running after a reasonable time or upon George’s ability to pay, this would not benefit appellant. George testified, and the trial court found, that George was able to pay and, in fact offered to pay, the debt in September, 1982. N.T. 9/7/89, at 51; T.C. Op. 12/13/90, at 2-3. If the statute began to run at that time, it would have expired in September, 1986—nineteen months before appellant commenced the instant cause of action.

B. Tolling

Appellant next argues that the statute of limitations was tolled and began to run anew when, at his deposition on October 30, 1985, George acknowledged the debt. A promise to pay a debt may toll the statute of limitations. 22 P.L.E. Limitation of Actions, § 121 (1959). The promise to pay may be express, or it may be implied from an acknowledgement of the debt. Id. However, “[b]oth promises to pay and acknowledgments of indebtedness must be unequivocal and unconditional” to take the case out of the statute of limitations. Receiver of Anthracite Tr. Co. v. Loughran, 341 Pa. 142, 144, 19 A.2d 61, 62 (1941).

A clear, distinct and unequivocal acknowledgment of a debt as an existing obligation, such as is consistent with a promise to pay, is sufficient to toll the statute. There must, however, be no uncertainty either in the acknowledgment or in the identification of the debt; and the acknowledgment must be plainly referable to the very debt upon which the action is based; and also must be consistent with a promise to pay on demand and not accompanied by other expressions indicating a mere willingness to pay at a future time. A simple declaration of an intention to discharge an obligation is not the equivalent óf a promise to pay, but is more in the nature of a desire to do so, from which there is no implication of a promise.

Maniatakis’ Estate, 258 Pa. 11, 15, 101 A. 920, 921 (1917) (citations omitted). Statements which are equivocal concerning a promise to pay or which do not clearly identify the debt do not toll the statute of limitations. See McPhilomy v. Lister, 341 Pa. 250, 19 A.2d 143 (1941); Garland Co., Inc. v. J.L. Miller & Sons, Inc., 395 Pa.Super. 532, 577 A.2d 917 (1990); In re Fix’ Estate, 140 Pa.Super. 60, 12 A.2d 826 (1940). See also, Annotation, Necessity and Sufficiency, in Order to Toll Statute of Limitations as to Debt, of Statement of Amount of Debt in Acknowledgment or New Promise to Pay, 21 A.L.R.4th 1121 (1983).

In the instant case, the following exchange took place during George Gurenlian’s deposition:

Q. [Appellant’s attorney]: In 1981 did you borrow a substantial sum of money from your father for federal income taxes?
A. [George Gurenlian]: Yes.
Q. Do you recall what the sum was?
A. I think it was either five or six thousand dollars, yes.

Deposition 10/30, 1985, at 22. Although George acknowledged borrowing money from appellant, he did not state that he still owed money to appellant and did not, expressly or impliedly, promise to repay money to appellant. Thus, George’s statement at his deposition was not sufficient to toll the statute of limitations.

C. Estoppel

Finally, appellant argues that the family and confidential relationship between himself and George takes this case out of the statute of limitations. In situations where “because, in whole or in part, of the confidential or fiduciary nature of such family relationship, it would be inequitable to permit the action to be barred by limitations,” courts have held that defendants are estopped from pleading the statute of limitations. Annotation, Fiduciary or Confidential Relationship as Affecting Estoppel to Plead Statute of Limitations, 45 A.L.R.3d 630, 645 § 10[a] (1972). However, where courts reject the contention that, due to the confidential or fiduciary nature of the relationship, it would be inequitable to permit the action to be barred by limitations, defendants are not estopped from pleading the statute of limitations. Id., at § 10[b]. A confidential relationship occurs when, because of a family relationship or otherwise, “one occupies toward another such a position of advisor or counselor as reasonably to inspire confidence that he will act in good faith for the other’s interest.” Silver v. Silver, 421 Pa. 533, 537, 219 A.2d 659, 662 (1966) (citations omitted). See also, Truver v. Kennedy, 425 Pa. 294, 306 n. 4, 229 A.2d 468, 474 n. 4 (1967).

In Silver v. Silver, supra, a mother placed the title to her property in the names of her sons, who promised to reconvey the property to her. The Court noted that a mother-son relationship, without more, was insufficient to establish a confidential relationship. However, the Court concluded that evidence of “the mother-son relationship, along with the evidence that the mother depended upon her sons for advice and [had] customarily abided by their decisions” in similar matters in the past, established a confidential relationship warranting the imposition of a constructive trust. Id., 421 Pa. at 538, 219 A.2d at 662. In the instant case, there is no evidence that appellant acted in reliance on George’s or Pamela’s financial advice when lending them the money. There is also no evidence that appellant had relied on their advice about financial matters in the past. Although a family relationship existed between George and appellant, the record is insufficient to support the finding of a confidential relationship as would take the case out of the statute of limitations. Accordingly, the trial court did not err in concluding that appellant’s cause of action was barred by the statute of limitations. For the foregoing reasons, the judgment is affirmed.

At the appeal docketed at No. 1940 Philadelphia 1990, the judgment entered on August 7, 1990 is affirmed; at the appeal docketed at No. 2357 Philadelphia 1990, the order entered on August 9, 1990 is affirmed.

      . In his concurring opinion, Judge Wieand noted that the trial court mistakenly believed that it lacked discretion to award interest at a rate higher than the market rate. See Rizzo v. Haines, 357 Pa.Super. 57, 65, 515 A.2d 321, 325 (Wieand, J. concurring).

      . In such cases where a demand is necessary to perfect the cause of action and the time of the demand is within the plaintiff’s control, the demand must be made within a reasonable time. Bell v. Brady, 346 Pa. 666, 31 A.2d 547 (1943). The plaintiff cannot “arrest the running of the statute ... for his own convenience.” Id., 346 Pa. at 670, 31 A.2d at 550. In the instant case, appellant did not demand repayment prior to instituting the cause of action in April of 1988, over five years after the loan was made. Thus, demand was not made within a reasonable time.

      . As to the accrual of the statute of limitations in actions on written instruments, see 42 Pa.C.S.A. § 5525(7).


author: MONTGOMERY, Judge:

text:
    595 A.2d 152
    Anthony STURKIE, Guardian and Parent for Toni Lynn Sturkie, a Minor, Appellant, v. ERIE INSURANCE GROUP and State Farm Mutual Automobile Insurance Company, Appellees. Anthony STURKIE, Guardian and Parent for Toni Lynn Sturkie, a Minor v. ERIE INSURANCE GROUP and State Farm Mutual Automobile Insurance Company Appeal of: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    Superior Court of Pennsylvania.
    Argued May 23, 1991.
    Filed July 25, 1991.

      William D. Garvin, McKeesport, for appellant (at 1456) and for appellee (at 1457).
    Richard Boyle, Jr., Greensburg, for appellant (at 1457). Leonard R. Reeves, Latrobe, for Erie Ins., appellee (at 1456 & 1457).
    John W. Pollins, III, Greensburg, amicus curiae.

      Before TAMILIA, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeals again bring before our court an issue of whether one may recover damages for personal injuries under both the liability and underinsured motorists coverages of the same motor vehicle insurance policy. The injuries giving rise to the claims in dispute in these appeals occurred in a February 13, 1987 automobile accident in McKeesport, Pennsylvania. On that date, an automobile operated by Eric Lucky, a minor, collided with other vehicles, and the accident caused serious injuries to Toni Lynn Sturkie, a guest passenger in Eric Lucky’s car. Eric Lucky’s automobile was then covered by a motor vehicle insurance policy issued by defendant Erie Insurance Group (“Erie”). At the time of the accident, Ms. Sturkie’s father maintained several separate policies of motor vehicle insurance issued by defendant State Farm Mutual Automobile Insurance Company (“State Farm”). After collecting the limits of the Erie policy liability coverage, claims were submitted to both insurers on behalf of Toni Lynn Sturkie for additional recoveries pursuant to underinsurance coverage provisions in the policies. Upon a refusal of such claims, Ms. Sturkie’s father instituted a declaratory judgment action on her behalf to determine her rights to receive underinsured motorists benefits from either or both defendant insurers. Because there was no factual disagreement to resolve, the matter was submitted to the trial court on briefs. It ruled that because she recovered the liability coverage policy limits from Erie, the tortfeasor’s insurer, the plaintiff could not also recover underinsurance benefits from Erie. Further, the court declared that any underinsurance recovery by the plaintiff could only be sought from State Farm. Both the plaintiff and State Farm filed posttrial motions. After the trial court denied such motions, the plaintiff and State Farm each instituted the instant separate appeals to our court, which have been consolidated for purposes of consideration and decision.

As noted at the outset of this opinion, our court has been called upon in the past to decide whether an injured plaintiff could recover both liability and underinsurance benefits under a single policy of motor vehicle insurance. See, for example, Caldararo v. Keystone Insurance Company, 393 Pa.Super. 103, 573 A.2d 1108 (1990); Newkirk v. United Services Automobile Association, 388 Pa.Super. 54, 564 A.2d 1263 (1989); and Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa.Super. 51, 535 A.2d 1145 (1988). In all of these cases, it has been held that the injured passenger (or her estate) was precluded from recovering under the liability and underinsurance coverages of the same motor vehicle insurance policy.

In each such case, and in others discussed by the parties, the policy of the insurance carrier which paid liability limits contained language which expressly precluded the claimant from recovering both liability benefits and underinsurance benefits under the policy. However, the Erie policy in issue in the instant case contained no language which declared that one could not recover underinsurance benefits after having received payment of the total liability coverage available under the policy. Although they raise other contentions, which will be considered later in this opinion, the primary argument of both the plaintiff and of State Farm, on their respective appeals, is that Erie must provide under-insured motorists benefits to the injured plaintiff, in addition to the liability coverage benefits, because its policy does not explicitly preclude a recovery by the plaintiff against both coverages. The resolution of that issue requires an analysis of the applicable law as well as a review of the prior case decisions bearing on that question.

The Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), Act of February 12, 1984, P.L. 26, No. 11, § 3, 75 Pa.C.S. § 1701, et seq., effective October 1, 1984, contained the first statutory requirement that every motor vehicle insurance policy issued in the Commonwealth of Pennsylvania must provide underinsured motorists coverage. Wolgemuth v. Harleysville Mutual Insurance Co., supra. Section 1731 of the MVFRL (75 Pa.C.S. § 1731) states, in pertinent part:

§ 1731. Scope and amount of coverage
(a) General rule—No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are provided therein or supplemental thereto in amounts equal to the bodily injury liability coverage except as provided in section 1734 (relating to request for lower or higher limits of coverage)____
* * * * &
(c) Underinsured motorist coverage. Underinsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles____

An underinsured motor vehicle is defined in the MVFRL, in Section 1702 (75 Pa.C.S. § 1702), as a “motor vehicle for which the limits of available liability insurance and self-insurance are insufficient to pay losses and damages.”

The leading case which discusses the history and rationale for the underinsurance provisions of the MVFRL is Wolgemuth v. Harleysville Mutual Insurance Co., supra. In that case, the administrator of the estate of a guest passenger killed in a motor vehicle accident brought a declaratory judgment action to determine whether the insurer which provided a policy of liability and underinsured motorists coverage on the host vehicle was responsible for the payment of underinsurance benefits after the limits of liability coverage under the policy had already been received by the passenger or her estate. In an analysis of the issue presented, our court, en banc, stated:

The purpose of underinsured motorist coverage is to protect the insured (and his additional insureds) from the risk that a negligent driver of another vehicle will cause injury to the insured (or his additional insureds) and will have inadequate liability coverage to compensate for the injuries caused by his negligence. Thus, an insured who purchases $100,000.00 of liability coverage to protect others from his negligence, must by law, be offered the option of purchasing up to $100,000.00 of underinsured motorist coverage to protect himself and his additional insureds from the risk that they will be severely injured by a negligent driver who has liability coverage in an amount insufficient to fully compensate them for their injuries.
The language of the statute itself suggests that under-insurance motorist coverage requires the existence of at least two applicable policies of motor vehicle insurance. See 75 Pa.C.S. § 1731(c). An underinsured motor vehicle, must, by definition, be an insured vehicle. Thus, the statute contemplates one policy applicable to the vehicle which is at fault in causing the injury to the claimant and which is the source of liability coverage (which is ultimately insufficient to fully compensate the victim), and a second policy, under which the injured claimant is either an insured or a covered person. It is the second policy which the statute contemplates as the source of underinsured motorist coverage, where the liability coverage provided by the first policy of insurance is insufficient to fully compensate the claimant for his injuries, (emphasis in original) 370 Pa.Super. at 58, 535 A.2d at 1149.

In Wolgemuth, the insurer based its refusal to pay under-insurance benefits on a policy provision which excluded from the definition of underinsured vehicles any owned by, furnished, or available for regular use of the insured or any family member. Our court concluded that such a provision did not violate either the MVFRL or public policy. Although the Erie policy in the instant case did not contain any similar clause precluding the combination of liability and underinsurance coverages sought herein on behalf of Ms. Sturkie, we cannot ignore the Wolgemuth analysis and conclusions that underinsurance coverage contemplates the existence of at least two applicable policies of insurance, with a lack of sufficient liability coverage to fully compensate the victim in the first policy, and a consequential claim against the second policy as the source for underinsured motorist coverage benefits.

Both the plaintiff and State Farm have contended that our court’s decision in Wolgemuth was very limited as it was allegedly based solely upon a construction of specific policy exclusionary language. In that regard, the appellants rely upon the following declaration in our opinion in Wolgemuth: “We are not here asked to determine, and express no opinion upon, whether an insured, as that term is defined by the Motor Vehicle Financial Responsibility Law, could, under certain circumstances, recover under both the liability and underinsured motorist provisions of a single policy.” 370 Pa.Super. at 59, 535 A.2d at 1149. We find no merit in that contention by the appellants. Section 1702 of the MVFRL (75 Pa.C.S. § 1702), defines “insured” as “[a]ny of the following”:

(1) An individual identified by name as an insured in a policy of motor vehicle liability insurance.
(2) If residing in the household of the named insured:
(i) a spouse or other relative of the named insured; or
(ii) a minor in the custody of the named insured or relative of the named insured.

The plaintiff in this case was a guest passenger, unrelated to and not a member of the household of the named insured. Thus, she was not an “insured” as defined by the MVFRL. Accordingly, the statement of limitation expressed by the court in its Wolgemuth decision did not render its analysis of the legislative scheme for underinsurance irrelevant to its disposition of the case. We have no basis for finding such reasoning to be inapplicable in our consideration of the plaintiffs claims in the instant case.

The concept that underinsurance coverage was intended to be claimed against a second policy coverage was further reiterated in the case of Newkirk v. United Services Automobile Association, supra. There, a panel of our court addressed a situation in which the injured passenger was the wife of the owner and operator of the vehicle in which she suffered the injuries for which underinsurance coverage was sought. That case also involved a declaratory judgment action, in which the plaintiff claimed a right to recover under both the liability and underinsured benefits provisions of a single motor vehicle insurance policy which had been issued to her husband. The policy in question included a provision that any vehicle owned by or furnished or available for the regular use of a family member could not be considered an uninsured motor vehicle.

In Newkirk, it was held that such a policy provision precluded the recovery under both policy coverages sought by the plaintiff. Inter alia, in discussing the issues presented in the case, the panel in Newkirk offered the following instructive analysis concerning the legislative intent underlying underinsurance motor vehicle coverage in our Commonwealth:

When the legislature created the underinsured motorist coverage provisions of the MVFRL, they simply did not intend for an individual to recover third party liability benefits and first party underinsured motorist benefits from the same automobile insurance policy. See Wolgemuth, 370 Pa.Super. at 56-61, 535 A.2d at 1148-50 (1988).
As we explained in Wolgemuth, our legislature enacted underinsured motorist coverage to resolve the inequities which resulted when only uninsured motorist coverage was mandatory and a claimant who had purchased uninsured motorist coverage was involved in a car accident with an underinsured motorist rather than an uninsured motorist. Our legislature thus intended underinsured motorist coverage to operate in the same manner as uninsured motorist coverage only for motorists who were injured by underinsured motorists.
With uninsured motorist coverage, a claimant cannot recover third party liability benefits and uninsured motorist coverage from a tortfeasor’s policy of insurance. The reason for this is clear. If the tortfeasor has third party liability coverage from which the claimant can recover, then the tortfeasor is not uninsured and the claimant is not eligible to recover any uninsured motorist benefits. See 75 Pa.C.S. § 1701 (uninsured motor vehicle is a motor vehicle for which there is no liability insurance). When the claimant is entitled to recover uninsured motorist benefits because the tortfeasor is uninsured, the claimant recovers those benefits through his or her own policy of insurance.
Applying this manner of operation to underinsured motorist coverage, it follows logically that a claimant cannot recover third party liability benefits and underinsured motorist coverage from the same policy of insurance. Rather, the recovery of underinsured motorist coverage is dependent on the existence of two policies of insurance: the tortfeasor’s policy and the claimant’s policy. When a tortfeasor is underinsured, the claimant recovers third party liability benefits from the tortfeasor’s insurance and supplements this recovery with the underinsured motorist benefits available through his or her own policy of insurance, (emphasis in original) 388 Pa.Super. at 63-64, 564 A.2d at 1267-68.

Thus, in both the Wolgemuth decision in 1988 and the Newkirk decision in 1989, our court expressed very clearly its view that the legislative intent underlying the underinsurance provisions of the MVFRL contemplated underinsurance claims against a second policy, after total liability payments under an initial policy were insufficient to compensate the underinsurance claimant. The same rationale regarding underinsured coverage claims was expressed by another panel of our court in 1990, in our decision in Caldararo v. Keystone Insurance Co., supra. There the record showed that the plaintiff was injured in a motor vehicle accident in which he was a passenger in a vehicle operated by his wife. He owned the vehicle and he and his wife were covered by a motor vehicle insurance policy issued by the defendant insurer. After receiving the full liability coverage limits in the policy, the plaintiff instituted a claim with the insurer for additional payment under the underinsured motorist coverage provisions of the policy. As in Wolgemuth and Newkirk, the policy contained a clause which excluded the type of recovery sought by the plaintiff. In rejecting the plaintiff’s claims in Caldararo, our court again made reference to the declarations in Wolgemuth that the MVFRL suggested that underinsurance motorist coverage requires the existence of at least two applicable policies of motor vehicle insurance.

Our court expressed the same determination with respect to the legislative intent in this area again in 1991, in our panel decision in Marroquin v. Mutual Benefit Insurance Company, 404 Pa.Super. 444, 591 A.2d 290 (1991). That case involved a situation in which the plaintiff was struck by a vehicle owned and operated by his brother, who carried an insurance policy in his name on that vehicle. At the time, both brothers resided with their parents, who had separate policy coverages with the same carrier on two vehicles. The parents’ coverages provided liability coverage for family members. The insurer denied a claim by the plaintiff for underinsured benefits under the parents’ policies after he recovered under the liability coverage of his brother’s policy. In our court’s analysis of the issues presented, reference was made to the Wolgemuth and Newkirk cases, and the principal was reaffirmed that more than one policy of insurance was necessary for a recovery of underinsured motorist benefits.

Our prior analyses of the legislative intent and scheme underlying underinsured motorist coverage in our Commonwealth does not permit us to adopt the position advanced by the appellants that the plaintiff can recover under both the liability and underinsurance coverage provisions of the Erie policy because there is no clause in the policy which specifically precludes such a double recovery. Because the law envisions underinsurance claims being raised against a second policy of insurance, after insufficient liability coverage has been exhausted under a primary policy, there was no need for Erie to insert a provision in its policy precluding the type of double recovery from a single policy sought herein by the plaintiff. We have no basis to hold that the absence of such clause automatically permits a claimant who has received the payment of liability policy limits, in the circumstances of this case, to thereafter pursue and receive benefits under the underinsurance provisions of the same policy. We therefore reject the primary contentions of both appellants.

State Farm suggests that because the Erie policy had no clause specifically prohibiting the dual recoveries sought by the plaintiff, it can be construed that Erie intended to permit one to state claims under both the liability and underinsurance provisions of the same policy. Further, State Farm points out Erie policy language which could arguably be construed to identify the plaintiff as an insured. We recognize the rule that the MVFRL is to be construed liberally to afford the greatest possible coverage to injured claimants. See Wolgemuth, 370 Pa.Super. at 61-63, 535 A.2d at 1151. Further, we are mindful that we are to construe an insurance policy most strongly against the insurer which drafted it. Erie Insurance Exchange v. Transamerica Insurance Co., 516 Pa. 574, 533 A.2d 1363 (1987); Lovering v. Erie Indemnity Co., 412 Pa. 551, 195 A.2d 365 (1963). However, we are not free to arbitrarily rewrite an insurance policy. We would be doing so if we were to rule that the Erie policy in issue evidenced an intent by Erie to permit the dual claims asserted herein by the plaintiff, especially in light of the countervailing case precedents of our court, discussed earlier in this opinion.

Based upon all of the foregoing, it is evident that the plaintiff has no right to recover underinsured motorist benefits under the same Erie policy which afforded her payment of the policy limits under its liability provisions. Thus, the trial court ruled correctly in declaring that any underinsurance claims of the plaintiff should be directed toward State Farm, rather than Erie.

Two additional issues raised by the plaintiff may be quickly resolved. In her brief, the plaintiff argues that State Farm has a duty to arbitrate claims the plaintiff has asserted against it for underinsurance coverage. Further, the plaintiff contends she is entitled to consequential damages from State Farm as a result of its refusal to honor its obligation to arbitrate her underinsured motorist claims. As noted by the trial court, neither of these claims were raised in the plaintiffs complaint, which only sought a declaratory judgment as to the respective liabilities of Erie and State Farm to pay underinsured motorist benefits. Because neither a request to compel arbitration nor any claim for damages was raised in the plaintiffs pleadings, the trial court correctly rejected both claims.

The order of the trial court is affirmed as to both appeals.

POPOVICH, J., concurs in the result.

      . The liability coverage claim against Erie was apparently settled with the consent of State Farm, and without any waiver by the plaintiff of her right to raise subsequent underinsurance claims against either carrier.

      . The Pennsylvania Trial Lawyers Association, with leave of our court, has filed an Amicus Curiae Brief in support of the appellants in both cases.

      . After setting forth this reservation regarding the scope of its decision in Wolgemuth, our court made reference to the fact that the deceased passenger in the case was a “class two" beneficiary, who had no contractual relationship with the insurer, and had paid no premiums. It was explained that to permit the recovery of underinsured motorist benefits from the insurer in that situation would be to convert essentially first party underinsured motorist coverage into third party liability coverage. The three classes or levels of beneficiaries were described by our Supreme Court in Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). As will be discussed later in this opinion, in Newkirk v. United Services Automobile Association, supra., a case involving a “class one” beneficiary who had a contractual relationship with the insurer, our court again stated its conclusion that the legislative scheme of the MVFRL contemplated underinsurance claims to be asserted against a "second” policy after the claimant had received a full recovery of inadequate compensation from the liability coverage of a separate or "first” policy. Therefore, it is evident that the class of beneficiaries into which the victim falls is of no consequence in this case.