author: PER CURIAM: CIRILLO, President Judge

text:
    568 A.2d 1272
    John J. DIETRICH, Jr. and Ernestine Dietrich, His Wife v. J.I. CASE COMPANY and Wick Implement, Inc. Appeal of J.I. CASE COMPANY. John J. DIETRICH, Jr. and Ernestine Dietrich, His Wife, Appellants, v. J.I. CASE COMPANY and Wick Implement, Inc.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1988.
    Filed Jan. 18, 1990.

      John D. Rhodes, Pittsburgh, for J.I. Case Co.
    Mary C. Fairley, Pittsburgh, for Dietrich.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   PER CURIAM:

These are appeals from a judgment and delay damages entered following a jury verdict for plaintiffs in a products liability action. Defendant below, J.I. Case Company (Case), appeals Orders denying its post-trial motions, molding the verdict against it to include delay damages, and entering judgment.

This case arises from a design defect in a machine called a “mini-sneaker,” manufactured by Case. The machine was designed as a “compact self-held cable plow for direct burial of telephone, gas service, cable T.V., electrical, irrigation and sprinkler system installations.” The “mini-sneaker” digs a trench, places conduit and backfills in one continuous motion. It is self-propelled and is “about the size of a golf cart”: approximately seven feet long, three-feet wide, and several feet tall. It is operated by a “monostick” which can be moved in all directions and allows the operator to control its operation while riding on it or walking along its side.

On June 16, 1983, John Dietrich, Jr., who was employed by C.D. MacDonald, Inc., was operating a “mini-sneaker” in the backyard of Nicholas Yacoviello. Dietrich was using the machine to bury telephone cable, which was lying on the ground’s surface. He operated the machine up an incline in an adjoining yard, across the tops of several yards and down the backyard of another neighbor, where he began to lay cable. After he reached the bottom of that yard, he lifted the plow out of the ground and moved toward Yacoviello’s yard. The plow was not pinned, but it could swing loose as the machine moved. As he moved the machine up a slope, he maneuvered it between two shrubs. Because there was not enough room for him to walk beside the machine while it passed between the shrubs, he released the monostick, which caused the stick to spring back into neutral. The side slope upon which Dietrich was operating the machine increased to approximately twelve degrees some twelve feet beyond the shrubs, and, after the accident, a two-inch deep depression in the ground was noted at this point. The machine moved forward at a slow speed for a short distance, and then tipped over on Dietrich, causing damage to his knee. Photographs of the scene showing the fallen machine could be read to indicate that the machine had reached this depression at the time of the accident.

Dietrich and his wife brought suit against J.I. Case Company, the manufacturer, and Wick Implement, Inc., the distributor of the “mini-sneaker,” claiming they were strictly liable for his injuries. The Dietrichs voluntarily discontinued the action against Wick, and it was dismissed from the case. The action against Case went to trial, and the jury returned a verdict for the Dietrichs.

The Dietrichs filed a timely petition for delay damages on December 1, 1986. Case filed an answer and new matter to the Dietrichs’ petition on December 8, 1986, along with a motion for post-trial relief. The Dietrichs replied to the new matter. Oral argument on the delay damages claim was held on January 5, 1987, and the court awarded delay damages in the amount of $72,438.35. At this point, Case petitioned for and was granted a stay of the Order awarding delay damages. The Order was stayed “until such time as a monetary judgment may be authorized by this court.” In November of 1987, the trial court denied Case’s motion for post-trial relief, so that the stay Order ceased to be effective. Judgment was entered on December 30, 1987, and the verdict was molded to include delay damages. These appeals followed; however, as noted in footnote 1, the plaintiff/Dietrichs’ appeal at No. 00082 Pittsburgh, 1988, is quashed.

On appeal, Case argues the trial court erred in denying its motion for judgment notwithstanding the verdict (j.n.o. v.). Case also complains the trial court erred in refusing to instruct the members of the jury that if they found Dietrich had voluntarily assumed the risk, the verdict must be in its favor. Lastly, Case argues the imposition of delay damages was improper. We affirm both the judgment on liability and the award of delay damages.

I. LIABILITY

Case argues the trial court erred in refusing to grant j.n.o.v. because the evidence was insufficient as a matter of law to prove the alleged defect in the product was a substantial factor in causing the injury to Dietrich. The Dietrichs contend this Court cannot properly consider this claim because Case’s motion for post-trial relief did not specifically state insufficiency of the evidence as a ground upon which it moved for j.n.o.v., but rather cited the trial court’s argument to be specious. In its motion for post-trial relief, Case claimed:

82. The Trial Court erred in failing to instruct the jury, in accordance with point No. 1 as submitted by the defendant, that based upon the law and the evidence presented in this matter, the jury verdict must be in favor of the defendant, and against the plaintiffs upon the plaintiffs’ cause of action in strict liability.

WHEREFORE, the defendant respectfully requests that this Honorable Court en banc enter a judgment notwithstanding the verdict in favor of the defendant. An examination of the binding instruction indicates these grounds were also raised there: “Based upon the law and the evidence presented in this matter, your verdict must be in favor of the defendant, J.I. Case Company, and against the plaintiffs, John J. Dietrich, Jr., and Ernestine Dietrich, his wife, upon the plaintiffs’ cause of action in strict liability.” In both the post-trial motion, and in the binding point for charge, Case has cited insufficiency of the evidence as grounds for granting j.n. o.v. We therefore find the issue as to sufficiency of the evidence is preserved for our review.

In order to make out a case of strict products liability, a plaintiff must show there is a defect in the product and that the defect was the cause of an injury. Sherk v. Daisy-Heddon, 498 Pa. 594, 602, 450 A.2d 615, 619 (1982); Vernon v. Stash, 367 Pa.Super. 36, 48, 532 A.2d 441, 447 (1987). In the instant case, while Case concedes the “mini-sneaker” contained a design defect, it argues the expert opinion testimony of the Dietrichs’ expert witness, John Wiss, was insufficient to show causation because he assumed facts which were not of record. Specifically, Case argues Wiss ignored testimony of both Dietrich and Yacoviello, who were eyewitnesses to the accident, that they did not remember vibrations in the machine, any bumping, or any irregularities in the ground over which the machine travelled. Further, Case claims Wiss relocated the accident scene to a place where he had discovered a depression in the ground several months after the accident. Wiss based his opinion on the assumption that the unpinned plow at the back of the machine could swing from left to right as it moved, bumping into the “mini-sneaker,” and that this, in combination with the depression into which the machine’s tires could have slipped, created sufficient dynamic forces to cause the machine to tip over. The “mini-sneaker,” because of its design, was, in fact, “top heavy;” it had a high center of gravity and was susceptible in certain instances to falling on its side.

In reviewing the refusal or grant of j.n.o.v., an appellate court must review the evidence and all inferences to be drawn from the evidence in the light most favorable to the verdict winner. Only evidence favoring the verdict winner must be considered, all other evidence must be rejected. If that evidence is then sufficient to support the verdict, j.n.o.v. was properly refused. Wenrick v. Schloemann-Seimag Aktiengesellschaft, 361 Pa.Super. 137, 145, 522 A.2d 52, 56 (1987), allocatur granted, 518 Pa. 643, 542 A.2d 1371 (1988). Judgment notwithstanding the verdict is proper only when two reasonable minds could not differ that, as a matter of law, the verdict winner could not make out a case. Maravich v. Aetna Life and Casualty Co., 350 Pa.Super. 392, 396, 504 A.2d 896, 898 (1986).

Taking the evidence in the light most favorable to the verdict winner in the instant case, Wiss’ opinion testimony was proper. He had run tests with the “mini-sneaker,” had considered reports of other tests that had been run concerning its stability and had reviewed a tape of the test made by Case of the machine after Dietrich’s accident. He was presented with testimony from both Dietrich and Yacoviello that they did not recall any bumping or vibrations from the machine. Dietrich testified he felt no instability in the machine while he was plowing, the plow was unpinned as he began to go through the bushes, he moved the wheels to the right at that point, the monostick moved in his hand or “felt funny,” and there was not much time between the movement of the monostick and the machine’s falling over. Wiss’ tests and the tests of Case showed the plow, when unpinned, swung heavily back and forth and, at times, bumped into the machine.

Further, Wiss took into account evidence of a depression in the ground, some two inches deep and one foot long found three years later during his examination of the property. Wiss testified it was his opinion the dynamic forces caused by the swinging plow and the depression in the ground were sufficient to topple the machine. Again, Case argues Yacoviello testified he had at the time of the accident recently reseeded and raked his yard and there was no obstacle in the yard. Case also argues, in any case, the pictures taken by Yacoviello at the time of the accident show the machine could not have travelled the distance necessary to reach the depression. Wiss testified he had made no measurements of the yard, but, according to his calculations of the dimensions of the machine and its position relative to the three bushes in the photographs, it could have reached the depression.

Again, taking the evidence in the light most favorable to the Dietrichs and rejecting all evidence against them, Wiss could draw the inference that the loose plow did swing at least once, the machine did reach the depression, it became unstable upon hitting the depression, the stick then moved in Dietrich’s hand, although he had felt no instability he could recall, and the machine fell over on him. We see no speculation on Wiss' part in reaching the conclusion, based on these facts, the defect in the machine caused the accident. If opinion evidence is to have probative value, it must be based on facts proven or assumed which are sufficient to allow the expert to render an intelligent opinion. Facts assumed need not be conclusively proven; it is sufficient for evidence of record to tend to establish those assumptions. Vernon, supra 367 Pa. at 52, 532 A.2d at 449. In this case, the inferences from the facts of record were sufficient to establish the assumptions made. We do not find the basis of the conclusions was inferred from the conclusion itself. Collins v. Hand, 431 Pa. 378, 390, 246 A.2d 398, 404 (1968). Judgment notwithstanding the verdict was properly refused.

Case next argues the trial judge’s instructions constituted error because he failed to include in the charge the statement that if the jury found Dietrich to have assumed the risk, he was barred from recovery. In reviewing contentions a jury charge was erroneous, the appellate court must not review the points in question out of the context of the charge as a whole. Rather, we must determine whether, in the context of the entire charge, and against the background of the evidence in the case, Case has demonstrated the trial court committed prejudicial error. Brandimarti v. Caterpillar Tractor Co., 364 Pa.Super. 26, 29-30, 527 A.2d 134, 136 (1987), allocatur denied, 517 Pa. 629, 539 A.2d 810 (1988). The trial judge is not required to use the exact language of a requested point. He or she may use any language he or she wishes as long as it adequately and clearly covers the subject in question. Id. If the charge is erroneous in a basic sense and the extent to which it might have been prejudicial to the complaining party cannot be determined, the grant of a new trial is proper. Sagala v. Tavares, 367 Pa.Super. 573, 579, 533 A.2d 165, 168 (1987), allocatur denied, 518 Pa. 626, 541 A.2d 1138 (1988).

A review of the charge in the instant case shows the trial judge did not use the words “barred from recovery” in his charge on products liability and assumption of the risk. What he in fact stated was, “assumption of the risk is a defense, and as such, the burden of proof is on the [defendant].” The trial judge then went on to outline the elements of that defense. Case complains this charge failed to present to the jury the legal consequences of finding Dietrich had assumed the risk. Case argues under McGonigal v. Pittsburgh Railways Co., 243 Pa. 47, 89 A. 805 (1914), the trial court must state what the legal results of a determination of fact must be.

While it is axiomatic that a trial court must clarify the issues so the jury may comprehend the questions they are to decide, see Brandimarti, supra 364 Pa.Super. at 29, 527 A.2d at 136, McGonigal does not require the exact result desired by appellant here. In McGonigal, the trial judge charged the jury on what was actually an issue of law for the court and not an issue of fact for the jury:

We think this instruction was erroneous in that it left to the jury to determine the law on a state of facts which convicted the plaintiff of manifest negligence and should have been so stated by the court. If the evidence disclosed the facts stated by the learned trial judge the plaintiff was clearly guilty of negligence and the court should not have told the jury that it was for them to decide whether he was guilty of contributory negligence.

Id., 243 Pa. at 50, 89 A. at 806. In the present case, there is no indication the trial court presented the plaintiffs’ case more persuasively than the defendant’s case in his instructions, see id.; nor are the facts in this case so clear as to require the trial court to make determinations as a matter of law. Rather, the trial court correctly instructed the jury as to the issues on which it was required to make findings of fact and on the law to be applied to those facts. Informing the jury that assumption of risk was a defense was tantamount to stating recovery was barred in that instance. We find the trial court did inform the jury of the legal consequences of its determination.

After an examination of the charge as a whole, we do not find any error prejudicing Case. As the trial court stated in its opinion, “this instruction clearly set out that such a finding of assumption of the risk is a ‘defense’ and the jury was properly instructed on the elements necessary. The defendant was given every opportunity to develop that issue.”

For the above reasons, we find the jury verdict and subsequent judgment entered as to the liability of appellant Case were proper, and we affirm.

II. DELAY DAMAGES

Case next argues delay damages were improperly awarded in this case. It complains the trial court improperly assessed delay damages against it without making a finding it had caused delay in the trial of the case. Case also argues Pa.R.C.P. 238, as applied in this case, is unconstitutional for several reasons: (1) the rule exceeds the rule-making authority granted to the judiciary by the Pennsylvania Constitution; (2) the rule imposes delay damages for future losses and injuries not yet payable, and violates the excessive fines clause of the United States Constitution; (3) the rule treats plaintiffs and defendants differently by requiring defendants to make a settlement offer, but not plaintiffs; and (4) the rule violates the equal protection clauses of the federal and state constitutions by assessing delay damages at a rate in excess of the legal interest rate.

The Dietrichs argue Case failed to properly preserve these issues for our review, relying on Pa.R.C.P. 227.1. An examination of the newly revised Rule 238 indicates that an Order of the court concerning delay damages is not subject to a motion for post-trial relief. See Pa.R.C.P. 238(c)(1), note. Plaintiff need only file a motion requesting delay damages within ten days of the verdict or the notice of the decision. Pa.R.C.P. 238(c)(1). Therefore, it was unnecessary for Case to file post-trial motions concerning delay damages. The issue has not been waived.

Although an examination of the Order entered in this case awarding delay damages to the plaintiffs shows the trial court determined that no fault was attributable to plaintiffs, and then assessed delay damages against Case which is consonant with this Court’s decision in both King v. Southeastern Pennsylvania Transportation Authority, 383 Pa.Super. 420, 557 A.2d 11 (1989), and Ceresini, supra, we believe the constitutional issues raised by Case should be addressed.

The Constitution of the Commonwealth of Pennsylvania gives the Supreme Court of the Commonwealth the authority to:

prescribe general rules governing practice, procedure and the conduct of all courts ... if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant.

Pa. Const, art. V § 10. In Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), the Supreme Court upheld the constitutionality of old Rule 238 against several challenges, among them a claim that the rule exceeded the rule-making authority of the court. Id., 496 Pa. at 62-67, 436 A.2d at 153-155. The Court held the old rule embodied both procedural and substantive elements; “[i]ts purpose and effect are procedural, yet its performance will touch upon substantive rights of both parties. However, the fact that a rule does involve the substantive rights of litigants should not mean that the rule is an inappropriate topic for Supreme Court rule-making. Most rules of procedure will eventually reverberate to the substantive rights and duties of those involved.” Id., 496 Pa. at 66, 436 A.2d at 155.

Some five years later in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), the Supreme Court was again faced with questions concerning the constitutionality of Rule 238 on the grounds of due process, equal protection and separation of powers. At that point, the court questioned the validity of several of its Laudenberger assumptions in the Craig context:

The Laudenberger Court accepted as an underlying reason for the Rule that there was a deliberate, profitable delay on the part of tortfeasors. If one accepts that a refusal to settle is always prompted by such motives, then no wrong is done a wrongdoer, and the rationale of Laudenberger would have settled the argument for then and always.

Id., 512 Pa. at 64, 515 A.2d at 1352. The Craig Court found that the argument was not settled, however, because in Craig the Court was faced with a faultless defendant, and a plaintiff at fault. Id., 512 Pa. at 64, 515 A.2d at 1353. These circumstances caused a reassessment of the earlier decision. While the Court declined to overrule the rationales of Laudenberger, it did find that its prior determinations of the substantive and procedural aspects of the rule were questionable:

There is no point in contending that a procedural rule may exist which punishes without fault, and is yet consistent with Due Process. Neither is there point in arguing that a procedural rule that punishes a defendant qua defendant does not smack of a substantive enlargement of duties owed.

Id. 512 Pa. at 65, 515 A.2d at 1353. Although the Court never specifically stated the precise constitutional grounds upon which it rested, it found enough of a constitutional problem that it suspended the offensive portions of the rule, and laid out a fact-finding procedure to determine fault prior to imposition of delay damages. New Rule 238, which was promulgated to effectuate the Craig decision, provides it is the plaintiffs fault which must be determined before delay damages may be assessed; that fault should be subtracted from the overall delay in the trial and damages should be imposed upon defendants for the remaining period. The fault of the defendant — or lack thereof — is immaterial. See King, supra; see also Pa.R.C.P. 238.

We are now faced with the question of whether the Supreme Court had the-constitutional authority to remake the old rule into a rule which permits an award of delay damages without a consideration of the fault of the defendant. It is immaterial that the defendant does not commit a further act which would delay the case, as he must accept the consequences of the entire extent of litigation which follows because he failed to meet the initial requirement of a bonafide offer of settlement, which would have served to insulate him from delay damages. The dissent, in finding Rule 238 unconstitutional, would have a two-step rule to impose delay damages — first, a defendant’s failure to make a bonafide offer, and second, that defendant was at fault in failing to pursue the litigation expeditiously. The new Rule 238 does, in effect, provide for even-handed fault assessment. On the one hand, defendant is liable for delay damages in failing to make a reasonable settlement offer, on the other hand plaintiff cannot prevail if it has caused the delay. The dissent cites Girard Trust Corn Exchange Bank v. Brinks, Inc., 422 Pa. 48, 220 A.2d 827 (1966), to support its view that the fault of both plaintiff and defendant must be assessed. This observation is misplaced. Girard relies on Pierce v. Lehigh Valley Coal Co. (No. 2), 232 Pa. 170, 81 A. 142 (1911), for this holding. To begin with, those cases predated Rule 238 (old and new) and the broad exercise of the rule-making authority of the Supreme Court, which came about only after the 1968 constitutional amendments and the creation of the Unified Judiciary. Secondly, the holding that delay damages must be assessed against the defendant if he is at fault, and not if the plaintiff was at fault, simply states in judicial language what has been promulgated in Rule 238. Rule 238 has made certain and routine what was formerly a spurious and optional proceeding. It further eliminated the problem of proof in establishing a standard criterion for fixing delay damages thereby making effective a necessary procedure to facilitate resolution of cases without trial and to proceed expeditiously with trial once litigation began.

We, therefore, hold Rule 238 is not patently unconstitutional, and any further determination in this respect can only emanate from the Supreme Court. We also mention the reminders in the Supreme Court’s pointed statements to this Court, expressed in Opinions by that Court, that we may not ignore its decisions (or rules), nor may we ignore the recent holdings of our en banc decisions in Ceresini, King and Miller, supra. See Commonwealth v. David L. Jones, 520 Pa. 385, 554 A.2d 50, 51-52 (1989), (“we take this opportunity to remind our Superior Court colleagues that Superior Court does not have authority to determine that decisions of this Court are ‘no longer controlling in light of [a Superior Court] decision,’ ” and Commonwealth v. Gambal, 522 Pa. 280, 561 A.2d 710 (1989) (Superior Court panel may not ignore a Superior Court en banc decision, Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987), which holds Pa.R.A.P. 2119(f) is a procedural requirement and not a jurisdictional requirement and the court may treat Commonwealth’s failure to object as waiver).

We are bound by the Supreme Court’s decision in Laudenberger, and as this Court noted in Shellhamer v. Grey, 390 Pa.Super. 122, 129, 568 A.2d 224, 228 (1989), “it would be spurious for us to reconsider the same issues in this appeal.”

Judgment affirmed as to liability and delay damages at No. 00081 Pittsburgh, 1988; appeal No. 00082 Pittsburgh, 1988, is quashed.

CIRILLO, P.J., concurs and dissents.

CIRILLO, President Judge

concurring and dissenting.

I join in Part I of the majority’s decision on the issue of liability. However, I must respectfully dissent to the majority’s resolution of the delay damages issue in Part II.

In my opinion, rule 238, because it operates to modify the substantive rights of the parties, exceeds the rule-making authority of the Pennsylvania Supreme Court, and is therefore unconstitutional. In my view, the supreme court did not have the authority to promulgate a rule which does not consider the fault of both the defendant and the plaintiff. Were a truly fault-based rule to be implemented, which would determine the fault of either party, assessment of damages against a defendant according to his or her fault would be seen as a sanction, a constitutionally permitted act on the part of the supreme court. This rule, however, as conceded by this court, is a prejudgment interest rule which works, not only to facilitate settlement, but to make the plaintiff whole by reimbursing him or her for inability to use funds rightfully his or hers. No other conclusion may be drawn from the assessment of damages against the defendant for delay not caused by that defendant. As such, the rule modifies the substantive rights of the parties involved. Prior to rule 238, prejudgment interest was not permitted in tort actions seeking to recover unliquidated damages. See Girard Trust Corn Exchange Bank v. Brinks, Inc., 422 Pa. 48, 220 A.2d 827 (1966).

Penalizing a plaintiff for his or her fault in delaying the trial process does not insure that a faultless defendant will be insulated from punishment. The rule, as it is now applied, will punish a defendant simply because he or she chooses to litigate a case by assigning to him or her the responsibility for all delay regardless of fault which cannot be directly attributed to the plaintiff. Under new rule 238, the defendant is punished simply because he or she is a defendant. This is an obvious enlargement of the substantive duties owed, an enlargement which, under the constitution of this Commonwealth, requires legislative action. I find the rule as presently written is therefore invalid.

I would reverse the award of delay damages.

      . The Dietrichs, plaintiffs below, appealed from a court Order granting a stay of the Order awarding delay damages “until such time as a money judgment may be authorized by this Court." That judgment was authorized on November 10, 1987. The appeal at No. 00082 Pittsburgh, 1988, therefore, would seem to be moot.
      In any case, an Order temporarily suspending proceedings is not generally appealable. Reynolds Metal Co. v. Berger, 423 Pa. 360, 362, 223 A.2d 855, 856-57 (1966). Whether or not that Order should be considered appealable depends on what practical effect it has on the relief requested by the litigants. If it effectively amounts to a dismissal of the action or a permanent denial of the relief requested, then the aggrieved party should be permitted to appeal. The Order has then, in effect, made a final disposition of those issues. Philco Corp. v. Sunstein, 429 Pa. 606, 609, 241 A.2d 108, 109 (1968).
      The Dietrichs argue J.I. Case improperly preserved the issue of delay damages by requesting a stay of the Order awarding those damages. They present us, not with an appeal alleging an abuse of discretion or other error on the part of the trial court, but rather with an answer to J.I. Case’s claim that delay damages were improperly awarded. Because they have made no argument to us on appeal concerning the validity of the stay Order, the appeal at No. 00082 Pittsburgh, 1988, is quashed. We will, however, consider their arguments concerning the propriety of J.I. Case’s method of issue preservation during our disposition of that appeal.

      . This Court never mechanically applied standards governing the form in which a party requested binding instructions as long as the trial court was presented with the question it was asked to decide. See e.g., Bloom v. Pike Township School Dist., 162 Pa.Super. 148, 150, 56 A.2d 348, 349 (1948) (request stated "under all the evidence, binding instructions are requested and that a verdict be directed for the defendant"); cf. Frank v. Peckich, 257 Pa.Super. 561, 579, 391 A.2d 624, 632 (1978) (issue not preserved where two defendants involved, and request for binding instructions unclear on whose behalf).
      Here, Case conceded the existence of a defect in the machine; the only issue raised at the trial level and in the motion for post-trial relief concerned the question of causation. The trial court was aware of the question before it. We therefore conclude the motion was specific enough to preserve for review the question of whether or not j.n.o.v. should have been granted.

      . We note that the motion filed by Case specified the precise relief requested as required by Pa.R.C.P. 227.1(d). Further, the post-trial motion requesting j.n.o.v. sufficiently specified the grounds for relief, and stated how those grounds were asserted at trial. See Pa.R.C.P. 227.1(b)(1) & (2).

      . Dietrich argues this challenge to the instructions is waived because Case failed to object a second time after the trial judge recharged the jury on products liability. Counsel for Case objected to the instruction immediately following the trial judge's charge to the jury. The products liability charge was not altered on recharge. We have held that a party who fails to object again when the charge is varied on reinstruction loses his or her chance to complain on appeal. See, e.g., Thompson v. Motch & Merryweather Machinery Co., 358 Pa.Super. 149, 156, 516 A.2d 1226, 1229-1230 (1986), allocatur denied, 515 Pa. 584, 527 A.2d 544 (1987) (failure of defendant's counsel to object to the court’s corrected instructions on the issue of substantial alteration effectively precluded him from assigning court’s instructions as basis for new trial); DiSerafino v. Bucyrus-Erie Corp., 323 Pa.Super. 247, 253, 470 A.2d 574, 577 (1983) (failure of defendant’s counsel to object to corrected instructions he had requested did not preserve issue for review). In the present case, we find counsel did not need to reiterate his objection. The charge was not altered in any way, merely repeated. Counsel objected when the charge was first given, and after trial raised the issue in post-trial motions. Cf. Matsko v. Harley Davidson Motor Co., Inc., 325 Pa.Super. 452, 461-462, 473 A.2d 155, 159-160 (1984) (after holding that counsel is required to repeat objections when grounds for objection occur in separate phases of trial, court stated in dicta that once objection had been properly made, counsel was not required to repeatedly voice objections). We find J.I. Case has preserved the issue for our review.

      . The opening portion of the charge stated:
      The plaintiffs claim that the husband/plaintiff ... was injured and sustained damage as a result of using a defective product, that is, the Mini-Sneaker in this case which tipped over and fell upon his leg causing injuries. The plaintiffs have the burden of proving that claim.
      The defendant denies the plaintiffs’ claims, denies that the plaintiff sustained injuries because of any defect and asserts as an affirmative defense that the plaintiff assumed the risk of harm in operating the Mini-Sneaker under the circumstances then and there prevailing. Defendants have the burden of proving an affirmative defense.

      . We find Case’s argument a jury is not sophisticated enough to comprehend the meaning of the term "defense” to be illogical in light of its further contentions that prejudice occurred because it would not be unreasonable to assume most if not all members of the jury were familiar with the concept of comparative negligence. It seems to us not unreasonable to assume the jury would understand a defense to be a bar to recovery unless instructed to the contrary.

      . This Court, in Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988), indicated that where an award of delay damages has been appealed, delay damages have not been finally determined and the newly promulgated Rule 238 is applicable to the case. We are therefore constrained to consider the rule here. In any case, we note that neither the Rules of Appellate Procedure, nor the Rules of Civil Procedure, have ever specifically required issues concerning delay damages to be raised in post-trial motions.

      . I believe that the new rule is also unconstitutional because it is unfair to defendants. See Schrock v. Albert Einstein Medical Center, Daroff Division, 386 Pa.Super. 215, 562 A.2d 875 (1989) (en banc) (Cirillo, P.J., dissenting) (constitutional issues must be reached because there was no mechanism in place for issue preservation).

      . It should be noted that in Marrazzo v. Scranton Nehi Bottling Co., Inc., 438 Pa. 72, 263 A.2d 336 (1970), the supreme court vacated a judgment and remanded for a determination by the trial court of whether damages for delay should be included in the compensation awarded the plaintiff. Id., 438 Pa. at 77, 263 A.2d at 338. The court made it clear, however, that it envisioned a finding of fault on the part of the defendant before he or she could be liable for that delay:
      “If the fault in nonpayment of the claim rests with the defendant, he cannot complain if he is required to compensate for the delay. If on the other hand the fault lies with the plaintiff by reason of an excessive and unconscionable demand, one which the defendant is required to protect himself against by litigation, he should not be penalized for the unwarranted conduct of the plaintiff, and required to pay damages for the delay in the settlement of the claim.”

        Id., 438 Pa. at 75, 263 A.2d at 338 (quoting Pierce v. Lehigh Valley Coal Co. (No. 2), 232 Pa. 170, 172, 81 A. 142, 143 (1911)).


source: Caselaw Access Project

author: KELLY, Judge: MONTEMURO, Judge,

license: Public Domain

text:
    568 A.2d 1281
    COMMONWEALTH of Pennsylvania v. Tyrone Lee WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 23, 1989.
    Filed Jan. 16, 1990.

      Neil J. Marcus, Monongahela, for appellant.
    John C. Pettit, Dist. Atty., Washington, for Com., appellee.
    Before OLSZEWSKI, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

In this appeal we are called upon to determine whether a police officer may formally arrest an individual whom the police officer has viewed committing a summary offense. The legality of the arrest is relevant to the derivative question of whether a search incident to the arrest was permitted under the circumstances. We find both the arrest and the search to have been lawful and affirm.

The relevant factual and procedural history may be summarized as follows. In March of 1987, at approximately 11:30 p.m., Officer James Brice of the Borough of Donora Police Department encountered a car parked with two wheels on the street and two wheels on the sidewalk while on a routine patrol in his police cruiser. Officer Brice approached to investigate, and as he did, he observed appellant standing to the side of the illegally parked car, urinating on an adjacent building. Officer Brice then got out of the police vehicle and, not recognizing appellant, asked him for some identification. Appellant replied by offering a name and an address outside of the Borough of Donora, but conceded that he had no proof of his identity.

Based on these facts, Officer Brice informed appellant that he would be issued a citation for disorderly conduct (for public urination), and apprised appellant that he would have to accompany him back to the police station so that some form of positive identification could be made. In accordance with standard procedure of the Donora Police Department, Officer Brice then conducted a brief weapons search of appellant’s person before allowing him to enter the police vehicle. While patting down appellant’s pocket, Officer Brice felt a long object in the pocket of the jacket. Believing it could be a knife or another dangerous instrument, Officer Brice reached inside appellant’s pocket and found eleven (11) packets of cocaine which had been lined up along the bottom of the jacket pocket. Appellant was then handcuffed and brought to the police station.

Subsequently, appellant was charged with possession and possession with intent to deliver a controlled substance. Appellant filed a motion to suppress, alleging that the police lacked probable cause or reasonable suspicion to conduct the search. The motion was later denied. Following a bench trial, appellant was found guilty of possession of a controlled substance. Timely post-trial motions were filed and denied. Appellant was given a suspended sentence of 1-12 months. This timely appeal followed.

On appeal, appellant raises two issues:

I. DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT’S MOTION TO SUPPRESS THE EVIDENCE?
II. DO THE POLICE HAVE A RIGHT TO SEARCH A DEFENDANT INCIDENT TO AN ARREST FOR A NON-VIOLENT SUMMARY OFFENSE?

(Appellant’s brief at 2).

At the outset, we note that in reviewing a suppression order, our scope of review is limited primarily to questions of law. Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986); Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978); Commonwealth v. Chinea, 246 Pa.Super. 494, 371 A.2d 944 (1977). We must determine whether the record supports the factual findings of the suppression court, as well as whether the inferences and legal conclusions drawn therefrom are reasonable. Commonwealth v. Oglialoro, 377 Pa.Super. 317, 547 A.2d 387 (1988). This Court has previously stated that in measuring support for factual findings,

“... [W]e are to consider all the evidence of record which supports the finding, from whatever source, and only such evidence of record which negates the finding which, as taken in the context of the record as a whole, remains uncontradicted. Moreover, with respect to “uncontradicted” evidence, due regard would have to be given to the fact that a trial court may simply reject evidence offered as “not credible,” even where direct contradiction is not present.”

Commonwealth v. Carelli, 377 Pa.Super. 117, 130 n. 1, 546 A.2d 1185, 1191 n. 1 (1988), allocatur denied 521 Pa. 609, 557 A.2d 341 (1988) (emphasis in original); see also Commonwealth v. Rodriquez, 387 Pa.Super. 271, 275 n. 2, 564 A.2d 174, 176 n. 2 (1989).

Instantly, appellant contends that police are powerless to conduct a search incident to a custodial arrest for a non-violent summary offense. In all such summary offense cases, appellant argues, the correct procedure for the investigating officer is to merely issue a citation. Appellant asserts that in the instant case, the police ignored the limits of their authority by arresting him for the non-violent summary offense of disorderly conduct, and by conducting a search incident to this arrest. Appellant submits, therefore, that any fruits of this search were unlawfully obtained, and therefore must be suppressed to comply with the exclusionary rule.

In response, the Commonwealth contends that appellant was lawfully arrested, and lawfully searched incident to arrest. The Commonwealth argues that the Pennsylvania Rules of Criminal Procedure provide that a defendant may be arrested for a summary offense where there is a danger that the defendant will flee. The Commonwealth reasons that because appellant could not properly identify himself, and did not live in the area of the arrest, there existed the possibility that the appellant would flee without responding to any citations issued against him. Thus, the Commonwealth maintains that the arrest was both necessary and was proper, and that any evidence seized during the arrest was done so legally and properly admitted in trial against him.

In denying appellant’s motion to suppress, and in denying appellant’s post trial motions subsequently, the trial court embraced the position advanced by the Commonwealth. For the reasons which follow, we agree with the trial court’s conclusion that appellant was lawfully arrested and the evidence obtained incident to appellant’s arrest should not have been suppressed. Our reasoning is similar but not identical to that of the trial court. See Commonwealth v. Allem, 367 Pa.Super. 173, 179, 532 A.2d 845, 848 (1987) (an appellate court may affirm on alternate grounds).

We begin our discussion with the observation that the exclusionary rule only bars the introduction of evidence derived from unreasonable searches or seizures. See Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985), citing United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); see generally Commonwealth v. Melson, 383 Pa.Super. 139, 556 A.2d 836 (1989) (Kelly, J., dissenting) (collecting cases). It is well established that a warrantless search incident to a lawful arrest is reasonable, and no justification other than that required for the arrest itself is necessary to conduct such a search. See Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343, 349 (1979); United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427, 440-41 (1973); Commonwealth v. Long, 489 Pa. 369, 374, 414 A.2d 113, 115 (1980); Commonwealth v. Trenge, 305 Pa.Super. 386, 403, 451 A.2d 701, 710 (1982). Stated another way, in all cases of lawful arrests, police may fully search the person incident to the arrest. Chimel v. California, 395 U.S. 752, 756, 89 S.Ct. 2034, 2036, 23 L.Ed.2d 685, 689-90 (1969), citing Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543, 553 (1925); Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652, 655 (1914) (dicta). Moreover, this doctrine encompasses all arrests, including those involving summary offenses. See United States v. Robinson, supra, and its companion, Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Consequently, any evidence seized as a result of a search incident to a lawful arrest is admissible in later proceedings. See Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947).

Applying these rulings instantly, we arrive at a simple proposition — if appellant’s arrest for the summary offense was lawful, then the subsequent search of his person must have been reasonable, and therefore any evidence derived from the search was properly admitted against him. Both of appellant’s contentions rest solely upon the alleged invalidity of the underlying arrest. Accordingly, we turn our discussion to an examination of the lawfulness of appellant’s arrest for the non-violent summary offense of disorderly conduct.

A.

On appeal, appellant relies exclusively on Commonwealth v. Shillingford, 231 Pa.Super. 407, 332 A.2d 824 (1975), in support of his contentions. Reliance on Shilling-ford is severally misplaced.

Quoting a previous version of the Pennsylvania Rules of Civil Procedure regarding summary offenses, the Shilling-ford Court reasoned, in dicta, that police may affect an arrest without a warrant for a non-traffic summary offense only when the summary offense “involves a breach of the peace, [or] endangers property or the safety of any person present.” Commonwealth v. Shillingford, supra, 332 A.2d at 826, quoting Pa.R.Crim.P. 102 (renumbered and amended Sept. 1, 1975). The dicta from Shillingford upon which appellant relies was based on a rule which has since been repealed and materially revised. The present version of the Pennsylvania Rules of Criminal Procedure contains no “breach of the peace” requirement, but instead includes only a mandate that the arrest be “specifically authorized by law.” Pa.R.Crim.P. Rule 51(d). Thus, the Supreme Court, by amending the Rules of Criminal Procedure, has withdrawn the foundation upon which Shillingford rested. Shillingford, therefore, is simply no longer controlling precedent, or persuasive authority.

Moreover, the facts which gave rise to appellant’s arrest here are materially distinguishable from those found in Shillingford. Significantly, the defendant in Shillingford presented proof of his identity at the request of the arresting officer. Having no cause to assume the identification offered was in any manner false, the arresting officer had no reason to suspect the appellant would flee the jurisdiction without responding to a citation. In this case, however, appellant provided no such assurance that he would not flee to avoid prosecution; no evidence, other than appellant’s bald assertions, was offered to prove that a citation, if issued, would bear the offender’s correct name or address. Thus, unlike in Shillingford, the arresting officer was left with no reasonable alternative but to insist upon verification of appellant’s identity before release. Arrest and transport of appellant to the station was manifestly appropriate under the circumstances. In light of this important distinction, the holding in Shillingford is wholly inapplicable instantly.

B.

The appropriate analysis is rather more complex than appellant suggests. The question of whether an officer is authorized to make an arrest depends initially on whether state law authorizes such action. Michigan v. DeFillippo, supra, 448 U.S. at 81, 99 S.Ct. at 560, 58 L.Ed.2d at 647. We begin here.

Statutory authority for law enforcement personnel to enforce laws and effect arrests in the Commonwealth of Pennsylvania may be found in several statutes. See generally, Gardner, Arrest and Search Powers of Special Police in Pennsylvania: Do Your Constitutional Rights Change Depending on the Officer’s Uniform?, 59 Temple Law Quarterly 497 (1986); McCarthy, Warrantless Arrests by Police Officers in Pennsylvania, 92 Dickinson Law Review 105, (Fall 1987). Borough police, such as those involved in the instant case, receive their statutory authority from 53 P.S. § 46121 which provides in pertinent part:

[B]orough policeman, who shall be ex-officio constables of the borough, ... shall and may, within the borough or upon property owned by the borough ... without warrant and upon view, arrest and commit for hearing any and all persons guilty of a breach of the peace, vagrancy, riotous or disorderly conduct or drunkeness, or who may be engaged in the commission of any unlawful act tending to imperil the personal security or endanger the property of citizens, or for violating any ordinances of said borough for the violation of which a fine or penalty is imposed____

53 Pa.S.A. § 46121 (emphasis added). This authority has not otherwise been restricted by the Pennsylvania legislature.

The Pennsylvania Rules of Criminal Procedure define appropriate police action in summary offense cases as follows. Rule 51 provides:

Criminal proceedings in summary cases shall be instituted either by:
(a) issuing a citation to the defendant; or
(b) filing a citation; or
(c) filing a complaint; or
(d) arresting without a warrant when arrest is specifically authorized by law.

Pa.R.Crim.P. 51 (emphasis added). Rule 70, which is intended to ensure that the police will identify their authority, additionally provides:

When an arrest without a warrant in a summary case is authorized by law, a police officer who exhibits some sign of authority may institute proceedings by such an arrest.

Pa.R.Crim.P. 70 (emphasis added).

Although no other Rule of Criminal Procedure further augments or restricts police power to enforce the law in summary offense cases, the explanatory comment to Rule 70 suggests other limitations. In pertinent part the comment provides:

It is intended that these proceedings will be instituted by arrest only in exceptional circumstances such as those involving violence, or the imminent threat of violence, or those involving a danger that the defendant will flee.

Pa.R.Crim.P. 70 comment. The comments, while often helpful in resolving ambiguities, are not controlling. Commonwealth v. Ferrari, 376 Pa.Super. 307, 317, 545 A.2d 1372, 1377 (1988). To the extent the comment purports to restrict express authority to arrest conferred by statute, it must be rejected.

As applied in the instant case, both the relevant statute and the Pennsylvania Rules of Criminal Procedure clearly allow for appellant’s arrest. Appellant was arrested by a borough police officer who, within his jurisdiction, observed appellant committing an offense for which the police officer was specifically authorized to arrest, i.e. disorderly conduct. See 53 P.S. § 46121. Rules 51 and 70 each recognize authority to arrest in summary cases where such arrest is specifically authorized by law. Such authority is found in 53 P.S. § 46121.

Moreover, like the trial court, we find that this arrest also falls within the general intent suggested in the comment to Rule 70. The risk of flight does not end when a suspect is first detained and charged. Here there was no verification of identification; hence, there was no guarantee that a summons would indicate appellant’s true identity or that Officer Brice would have any way to locate appellant to pursue the charge if appellant failed to appear in response to the summons on the appointed day. In this sense, there was a risk of flight within the meaning of the comment to Rule 70. In light of this possibility, and having no other way to verify any necessary information to ensure compliance with a citation, Officer Brice was left with no alternative but to arrest appellant and transport him to the police station for processing in order to adequately verify the offered identification. Had Officer Brice not elected to arrest appellant, his actions would have been tantamount to releasing appellant without charge. Neither law nor reason could justify such a result. Accordingly, we find that under the Pennsylvania law, appellant’s arrest was authorized and that Officer Brice was merely discharging his solemn duty to the community in arresting appellant under the circumstances of this case.

C.

Having concluded that Pennsylvania state law authorizes borough police officers to arrest without a warrant for the non-violent summary offense of disorderly conduct, we turn finally to the question of whether the state law is constitutionally reasonable. We find that it is.

Both the Pennsylvania Constitution and the United States Constitution guarantee the right to be secure from unreasonable searches and seizures. An arrest warrant is not required to render the seizure of a person reasonable. United States v. Miles, 468 F.2d 482, 486 (3d Cir.1972); Wakely v. Hart, 6 Binn 316, 318 (Pa. 1814); Commonwealth v. Westerfer, 294 Pa.Super. 459, 462, 440 A.2d 556, 558 (1982). Rather, both the Pennsylvania Supreme Court and the United States Supreme Court have consistently held that police may arrest without a warrant where the arresting officer has at least probable cause to believe the person arrested has committed or is committing an offense. See e.g. Michigan v. DeFillippo, supra; United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982); Commonwealth v. Bartlett, 486 Pa. 396, 406 A.2d 340 (1979); Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978); Commonwealth v. Douglass, 372 Pa.Super. 227, 539 A.2d 412 (1988); Commonwealth v. Anderson, 360 Pa.Super. 466, 520 A.2d 1184 (1987).

At common law, an officer could arrest for felony offenses upon probable cause whether or not the officer had witnessed the offense, but could arrest for a misdemeanor only with probable cause and upon view. Halsbury ’s Laws of England, 344-345 (3d Ed.1955); I Stephen’s History of Criminal Law of England 193 (1883); IV Blackstone’s Commentaries *292 (Sharswood ed. 1872); II Hale’s Pleas of the Crown, 85-98 (1736); see also Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 547-550 (1924). There was also enhanced authority at common law for night wardens or other officers to arrest and detain any suspicious person out after sunset. See IV Blackstone’s Commentaries, supra, at *292; cf. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985). While the common law authorizations have been displaced by express statutory authorizations and constitutional restrictions, the distinctions of the common law retain some vitality under the current schema. Compare IV Blackstone’s Commentaries at *290 (“When the offender is not likely to abscond before a warrant can be obtained, it is in general better to apprehend him by a warrant than for a private person or officer to arrest him of his own accord, because if the justice should grant his warrant erroneously, no action lies against the party obtaining it.”), with Pa.R.Crim.P. 70 comment, infra.

Any suggestion that the Pennsylvania or United States Constitutions prohibit custodial arrests for misdemeanors or summary offenses as unreasonable per se is wholly unsupported by case law. With regard to the federal constitution, the Fourth Circuit Court of appeals has cogently observed:

While there have been intimations from some members of the Supreme Court that perhaps for some minor offenses no custodial arrest should be considered constitutionally permissible, see Gustafson v. Florida, 414 U.S. 260, 266, 94 S.Ct. 488, 492, 38 L.Ed.2d 456 (1973) (Stewart, J., concurring), the Court has never so held. Robins v. California, 453 U.S. 420, 450 & n. 11, 101 S.Ct. 2841, 2858 & n. 11, 69 L.Ed.2d 744 (1980) (Stevens, J., dissenting). Until such an interpretation of the reasonableness requirement of the fourth amendment is adopted by the Court, we must assume that it applies alike to all criminal offenses — without regard to severity or permitted punishment — to allow reasonable custodial arrests as the traditional means for invoking the criminal process.

Fisher v. Washington Metro. Area Transit Authority, 690 F.2d 1133, 1139, n. 6 (4th Cir.1982); see Michigan v. DeFillippo, supra (probable cause standard utilized in determining reasonableness of warrantless summary offense arrest); United States v. Robinson, supra (same); United States v. Gustafson, supra, (same); see also United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983) (probable cause standard utilized in determining reasonableness of warrantless arrest for felony); United States v. Watson, supra (same).

Similarly, although Pennsylvania statutes and the rules of procedure have provided various restrictions upon arrest for summary offenses (primarily involving a continuance of the common law requirement that the officer view the offense, and further restrictions to limit arrest to those where summons is not likely to be sufficient to preserve the peace and ensure appearance), appellant has not cited, nor have we discovered, any case suggesting constitutional limits in this regard. To the contrary, it has been plainly stated that our constitution enacted no restrictions on common law authority regarding warrantless arrests. See Wakely v. Hart, supra; accord Commonwealth v. Schaeffer, 370 Pa.Super. 179, 238-40, 536 A.2d 354, 383-84 (1987) (Kelly, J. concurring and dissenting), allocatur granted, 520 Pa. 596, 522 A.2d 251 (1988); Commonwealth v. Ryan, 21 Pa. D. & C. 457, 458 (1934); Commonwealth v. Street, 3 Pa.D. & C. 783, 787-88 (1923). Prior cases which have suggested or recognized restrictions upon the authority to arrest for summary offenses have all been decided upon statutory limitations or the more restrictive language of then applicable rules of criminal procedure. See e.g. Commonwealth v. Trefy, 249 Pa.Super. 117, 375 A.2d 786 (1977); Commonwealth v. Gallagher, 242 Pa.Super. 289, 363 A.2d 1274 (1976).

Moreover, where the officer is empowered to affect a reasonable seizure of the person through warrantless arrest, the decision to initiate criminal process falls plainly within the officer’s broad discretion, and the exercise of that discretion is not constitutionally significant absent evidence of an arbitrary, vindictive, or discriminatory motive. United States v. Gustafson, supra, 414 U.S. at 265, 94 S.Ct. at 491-92, 38 L.Ed.2d at 456. (“Though the officer was not required to take the [offender] into custody ... we do not find [this] determinative of the constitutional issue. It is sufficient that the officer had probable cause to arrest____”). Cf. Commonwealth v. Rocco, 375 Pa.Super. 330, 338, 544 A.2d 496, 500 (1988) (holding that there is no duty in Pennsylvania to prosecute, and the decision to prosecute or not to prosecute is within the broad discretion of the prosecutor); Commonwealth v. Stinnett, 356 Pa.Super. 83, 95-96, 514 A.2d 154, 160-61 (1986) (discussing prosecutor’s broad discretion generally). The “conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.” Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446, 453 (1962). Absent a prima facie showing that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, this discretion may not be successfully challenged. Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); Oyler v. Boles, supra; see also Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (discussing harsh treatment for exercise of lawful right); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (same); Commonwealth v. Rocco, supra, citing Bordenkircer v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604. (1978) (discussing discriminatory prosecution).

Conclusion

Appellant admits that the arresting officer witnessed him urinating in public, conduct which incontrovertibly constitutes disorderly conduct. The probable cause to believe appellant was committing an offense was therefore manifest. Moreover, the relevant statute clearly authorizes borough police to arrest upon view for this offense and no relevant Pennsylvania Rule of Criminal Procedure or applicable prior case law mandates otherwise. We conclude, therefore, that appellant’s arrest was authorized by the law of this Commonwealth, and that such law is constitutionally permissible.

In light of the foregoing, we hold that the search incident to appellant’s lawful arrest was valid, and the fruits of that search were properly admitted at trial against him. Accordingly, we AFFIRM judgment of sentence.

MONTEMURO, J., filed a concurring opinion.

MONTEMURO, Judge,

concurring:

Following a careful consideration of the present case, I find that while I agree with the majority that appellant’s judgment of sentence should stand, I must write separately to set forth my views.

Pursuant to our Rules of Criminal Procedure, a police officer is provided with a choice as to the means of instituting proceedings where a case involves the alleged violation of a summary criminal offense. Pa.R.Crim.P. 51. One of these choices is “arrest without a warrant when arrest is specifically authorized by law.” Id. In the present case, this was the course of conduct undertaken by Officer Brice. The trial court, in denying appellant's motion to suppress, found, as a factual matter, that the arrest of the appellant, and subsequent transport to the police department, “was done in order that some form of positive identification could be made of the defendant.” R.R. at 68a. I agree that under the circumstances of this particular case, Officer Brice exercised sound discretion in arresting the appellant. His conduct is authorized by Pa.R.Crim.P. 51, and it did not result in a violation of appellant’s right to be secure from unreasonable searches and seizures.

My concern with the majority’s decision centers upon the treatment of the explanatory comment to Pa.R.Crim.P. 70. In Commonwealth v. Costello, 301 Pa.Super. 537, 448 A.2d 38 (1982), this Court opined:

Although the committee’s comments are not binding on us, they may be considered as effective aids when interpreting the meaning of the rules and amendments thereto. Commonwealth v. Byrd, 250 Pa.Super. 250, 378 A.2d 921 (1977). Additionally, Pa.R.Cr.P. 2 states that the rules shall be construed “as nearly as may be in consonance with the rules of statutory construction.” Those rules authorize us to consider the report of the committee that drafted the amendment. 1 Pa.C.S.A. § 1939.

Id., 301 Pa.Superior Ct. at 540-541, 448 A.2d at 40 (footnote omitted). In addition to the explanatory comment to Pa.R. Crim.P. 70, which explicitly favors institution of summary proceedings through the issuance of a citation as opposed to arrest, the following appears in the committee’s introduction to Chapter 50 of our Rules of Criminal Procedure:

The procedures set out in the following rules governing summary cases (as defined in Rule 3) recognize the importance of prompt notice that a summary offense is being alleged, while also taking account of the minor nature of summary offenses. Although the law recognizes the possibility of an arrest in some summary cases, it is intended under these rules that a citation will be issued to the defendant except in exceptional circumstances (such as those involving violence, or the imminent threat of violence or those involving a danger that the defendant will flee.)
Recent experience with citation procedures indicates that most defendants will obey summary process in summary cases. The rule procedures here, therefore, are generally designed to favor the least intrusive means of instituting a summary proceeding. The general scheme laid out in these rules is that normally summary cases will be instituted not by arrest, but by a law enforcement officer ... handing a citation to the defendant at the time the offense is committed.

Even though I agree that the arrest effected by Officer Brice in the case at bar was authorized both by our Rules of Criminal Procedure and by constitutional law, I believe our Supreme Court’s intent with reference to the use of arrests in summary cases must be clearly set forth and emphasized. In most summary cases, due to the minor nature of these criminal offenses, public policy favors the issuance of a citation to the defendant who, upon receiving the citation, will be free to go. In most cases, arresting the defendant, thus restraining his personal freedom, is not necessary in order to assure that the defendant will obey summary process in summary cases. Encouraging the use of the least intrusive means of instituting summary proceedings will surely benefit the citizens of this Commonwealth as law enforcement officers who can effectively handle an incident involving a summary offense in a prompt manner will then be available to respond to calls concerning more serious criminal incidents.

Based upon all of the foregoing reasons, I concur.

      . 35 Pa.S.A. § 780-113.

        . We note the existence of case law in other jurisdictions in which distinctions based on the threat of avoiding compliance with citations in summary offense arrests have been upheld. See e.g. U.S. v. Rutherford, 824 F.2d 831 (10th Cir.1987) (where defendant does not furnish satisfactory evidence of identity or officer has reasonable grounds to believe the offender would disregard written promise to appear in court, arrest for summary offense is lawful); People v. Clyne, 189 Colo. 412, 541 P.2d 71 (1975) (same); State v. Martin, 253 N.W.2d 404 (Minn.1977) (citation must be issued if the defendant signs the citation agreeing to appear, unless it is reasonably apparent to the officer that arrest is necessary to prevent injury or to prevent further criminal acts, or that it is likely the defendant will fail to respond to the citations and such evidence was not shown).

      . U.S. Const.Amend. IV
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      Pa. Cons.Article I, § 8
      The People shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or thing shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

      . See also, Feldman, The King’s Peace, The Royal Prerogative and Public Order: The Roots and Early Developments of Binding Over Powers, 47 Cambridge L.J. 101, 113 (England 1988).

      . See generally, Uviller, Tempered Zeal, passim (1988); Williams, Police Discretion: The Institutional Dilemma — Who Is In Charge?, 68 Iowa L.Rev. 431 (1983); LaFave, The Police and Nonenforcement of the Law — Part I, 1962 Wis.L.Rev. 104 (1962); Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 Yale L.J. 543 (1960).

      . To the extent that appellant’s claim might arguably be viewed under the auspices of a "pretextual arrest" (an arrest which, though based on probable cause, is employed as a device to investigate or search for evidence of an unrelated offense for which probable cause is lacking) claim, we note that such challenges have not received favorable consideration generally, absent a separate and distinct claim of selective prosecution. See United States v. Trigg, 878 F.2d 1037, 1039 (7th Cir.1989); Haddad, Pretextual Fourth Amendment Activity: Another Viewpoint, 18 U.MichJ.L.Ref. 639 (1985) (collecting cases). Review of an officer’s decision to arrest is limited to an objective assessment of the probable cause to arrest in light of the facts and circumstances confronting the officer at the time, and as such an officer’s uncommunicated intent to do an illegal act is irrelevant. Maryland v. Macon, supra, 472 U.S. at 463, 105 S.Ct. at 2778, 86 L.Ed.2d at 377; see also Graham v. Connor, 490 U.S.-, 109 S.Ct. 54, 104 L.Ed.2d 443 (1989); Scott v. United States, 436 U.S. 128, 137-139, 98 S.Ct. 1717, 1723-24, 56 L.Ed.2d 168, 178 (1978); United States v. Trigg, supra, 878 F.2d 1037, 1041; Cf. Commonwealth v. Melson, supra, (Kelly, J., dissenting). In electing to exercise lawful discretion whether to arrest, legitimate suspicion of further criminal conduct can hardly be deemed an arbitrary, discriminatory, or vindictive motivation. Nonetheless, we need not decide the issue in the present case as appellant has not seen fit to raise it directly or properly preserve it for appeal.


author: BECK, Judge: TAMILIA, Judge, JOHNSON, Judge,

text:
    568 A.2d 1289
    Polly Ann D’HUY, Appellee, v. Gerard J. D’HUY, Appellant. Gerald J. D’HUY, Appellant, v. Polly Ann D’HUY, Appellee.
    Superior Court of Pennsylvania.
    Argued June 19, 1989.
    Filed Jan. 23, 1990.

      Donald B. Corriere, Bethlehem, for appellant.
    Michael C. Deschler, Bethlehem, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   BECK, Judge:

These consolidated appeals are from the final decree of the trial court disposing of two related actions between appellant, Gerald J. D’Huy, and appellee, Polly Ann D’Huy, formerly husband and wife. Both actions concerned wife’s right to continue to receive certain monthly payments pursuant to their pre-divorce property settlement agreement despite her post-divorce cohabitation with another man. The trial court determined that wife was entitled to continue to receive the payments as required by the parties’ agreement. We affirm.

Polly Ann D’Huy (“wife”) and Gerald J. D’Huy (“husband”) were married in 1958. On August 24, 1983, after having separated, husband and wife executed a Property Settlement Agreement (“Agreement”) pursuant to which they resolved all aspects of their economic relationship. Since both of the parties’ children were then adults, the Agreement did not provide for child support, custody or visitation. The Agreement did provide for a division of the parties’ holdings in real estate, consisting of three parcels: a residence, a business property and a third property. As to the first two parcels, the parties agreed that wife would transfer all of her interest therein to husband in exchange for a total payment of $40,000 at the time of execution of the Agreement. This amount represented only a small fraction of the actual value of these properties. As to the third property, the parties agreed that it would be deeded to their children. The Agreement further provided as follows:

THIRD: ALIMONY PAYMENTS TO WIFE
Commencing November 1, 1983, husband shall make periodic payments to wife for her support and maintenance (which obligation shall be separate and apart from and in addition to his obligations under the other provisions of this agreement) of the following amounts at the following times:
A. For One Hundred Four (104) weeks (two full years) husband shall pay the weekly amount of FOUR HUNDRED ($400.00) DOLLARS per week payable every two (2) weeks or every four (4) weeks as the wife shall so elect.
B. From and after November 1, 1985 husband shall pay to wife the sum of ONE THOUSAND SIX HUNDRED FIFTY ($1,650.00) DOLLARS per month payable on the first day of each and every month for One Hundred Twenty (120) months (ten years) at which time all alimony payments shall terminate.
C. The wife acknowledges that said payments in this Article THIRD are in the way of alimony, support and maintenance and as such are taxable income to her and may be deductible by the husband.
D. In the event of husband’s death, husband’s estate shall continue to be liable for the payment of the wife’s support and alimony. The executors may, at their sole option to be exercised at any time, pay in a lump sum all payments thereafter falling due under this Article THIRD discounted to their present worth’s [sic] (at the time of payment) at seven (7%) percent interest. To further secure the payment by the estate, husband agrees to provide life insurance as provided for in Article FOURTH as collateral.

Husband also agreed to pay wife’s tuition and related educational expenses for two years, i.e. the time it would take her to complete a community college program she intended to pursue in order to rehabilitate herself.

Lastly, the Agreement provided that it was the entire agreement between the parties and would remain in full force and effect unless terminated by mutual written consent of the parties or, as to certain aspects of the Agreement, until their death. In this regard, the Agreement specifically provided “[i]n the event that the marriage of the parties hereto is terminated by divorce, this Agreement shall nevertheless remain in full force and effect, and shall survive the decree.”

On February 13, 1984, the parties were divorced. The divorce decree stated “Incorporated herein and made a part of this Divorce Decree is the attached Property Settlement Agreement dated the 24th day of August, 1983 by and between Polly Ann D’Huy and Gerard D’Huy.”

In November 1986, wife began living with another man, whom she intended to marry. In January 1987, wife filed a complaint seeking a declaratory judgment to the effect that her cohabitation and remarriage would not affect husband’s obligation to continue making the payments due under sub-paragraph B above. Husband answered wife’s complaint and countered by filing a petition for special relief in which he sought to be relieved of making such payments. Husband contended that he had no further obligation to make these payments because they were alimony payments being made pursuant to a court order, i.e. the divorce decree, and thus should be terminated upon wife’s cohabitation. Husband relied on Sections 501(e) and 507 of the Divorce Code. Pa.Stat.Ann. tit. 23, §§ 501(e), 507 (Purdon Supp.1989). Section 501(e) provides that remarriage of the recipient of court ordered alimony shall terminate the award of alimony. Section 507 states that a person who cohabits with person of the opposite sex not a member of the first person’s immediate family within the degrees of consanguinity subsequent to divorce may not receive an award of alimony.

The trial court consolidated the two actions and rendered a decree nisi accompanied by an opinion. The court concluded that although the Agreement might well have merged with the divorce decree, thus taking on the attributes of a court order and losing its status as a contract, the payments pursuant to sub-paragraph B should nevertheless continue since they were in fact a distribution to wife of the remaining value of the parties’ joint real estate interests and not alimony subject to termination under Sections 501(e) or 507. In reaching this conclusion, the trial court found the above-quoted portion of the Agreement ambiguous and considered parol evidence pertinent to the intent of the parties concerning the nature of the sub-paragraph B payments.

After post-trial motions were filed, the decree nisi was entered as a final judgment. The trial court en banc authored a new opinion in which it affirmed the original trial court disposition and concurred in its opinion, with some clarifications. The en banc court opined that the Agreement should not be seen as having merged with the decree, but agreed that in any event the sub-paragraph B payments were not alimony. The en banc court agreed that the payments were a distribution of property to wife over time which the parties intended to continue despite cohabitation by Or remarriage of wife.

On appeal, husband argues that the Agreement merged into the divorce decree, thus losing its identity as a contract and becoming a court order providing for alimony which must now terminate under Sections 501(e) and 507 of the Divorce Code. He also argues that the Agreement unambiguously provides that the payments under sub-paragraph B are alimony payments. Thus, he contends that the trial court erred in admitting parol evidence to construe the written terms of the Agreement.

Analysis of whether the Agreement has lost its identity as an enforceable contract by merging into the divorce decree and becoming a court order must begin with a review of this court's most recent and comprehensive opinion on the subject, Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988). In Bonder, we were specifically confronted with a property settlement agreement that provided, inter alia, for child support. The agreement clearly revealed that the parties intended the agreement to remain an enforceable contract after divorce despite the incorporation of the agreement into the divorce decree. The decree itself stated that the agreement was incorporated therein, but not merged. The Bonder court held that the parties’ intent must govern the status of the agreement. Since their intent was clearly that the agreement would remain an enforceable contract after divorce, not subject to modification by the court, this court affirmed the trial court’s refusal to reduce the child support provided for in the agreement. Id., 378 Pa.Superior Ct. at 495, 549 A.2d at 166. See also McGough v. McGough, 361 Pa.Super. 391, 522 A.2d 638 (1987), allocatur denied, 515 Pa. 623, 531 A.2d 431 (1988) (where parties’ intent as expressed in agreement is to preserve agreement beyond divorce, and this intent is also expressed in divorce decree that incorporates but expressly does not merge agreement, agreement survives).

In the instant case, we are once again faced with an Agreement that is patently clear regarding the intent of the parties regarding survival of the Agreement after divorce. The Agreement nowhere uses the technical words of incorporation or merger. Instead, the Agreement states that it is intended to be a complete and integrated resolution of all economic issues between them and that it “shall ... remain in full force and effect, and shall survive ... divorce”. The incorporation/merger issue arises solely because the decree itself provides that the Agreement is incorporated therein. The decree itself does not address merger. In other words, whereas in Sonder the decree provided for incorporation and non-merger, the decree here provides for incorporation but is silent as to merger.

Husband argues this case is distinct from Sonder and is analogous to Commonwealth ex rel. Tokach v. Tokach, 326 Pa.Super. 359, 474 A.2d 41 (1984). In Tokach, the parties entered into an agreement providing for child support. They later were divorced by entry of a decree that stated that the agreement was incorporated into the decree. Merger was not mentioned. The Tokach court held that the incorporation of the agreement into the decree had the effect of merging the agreement into the decree so that the child support obligation was now modifiable on a showing of changed circumstances. The court so concluded without any examination of the parties’ intent. Id., 326 Pa.Superior Ct. at 360-61, 474 A.2d at 41-42.

There is an apparent analogy between this case and Tokach. However, we cannot ascertain from the Tokach opinion itself whether there was in that case any other evidence of the parties’ intent beyond the divorce decree’s incorporation language. The opinion does not discuss anything other than this language. The only clue as to the intent of the parties appears in the concurrence to Tokach, authored by Judge Cavanaugh. There it is posited that since the Tokach parties’ agreement contained language suggesting that the amount of child support agreed to depended upon the financial situation of the parties at the time of agreement, it was appropriate for the contract to be modified when their financial situation changed. In other words, the parties’ contractual intent was to permit modification by court order in this circumstance. Id. at 361, 424 A.2d at 42.

In contrast, the evidence in the case before us is overwhelmingly supportive of a finding that the parties did not intend their Agreement to merge into the decree and to be modifiable as a court order. The Agreement itself says it is the final binding agreement of the parties and shall survive divorce. The Agreement provides for neither incorporation or merger. The only evidence standing against this is the incorporation language of the decree.

To the extent that the holding in Tokach means that the terms of a settlement agreement that are incorporated into the divorce decree are thereby automatically merged into the decree, we overrule Tokach. To do otherwise would be to undermine the holding in Sonder, which focussed on the intent of the parties, and to ignore the dictates of other cases commanding the same analysis. See, e.g., Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981); Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983). We hold that where, as here, the parties to a property settlement agreement have clearly and unambiguously expressed in their agreement an intent that their agreement will survive the entry of the divorce decree, the agreement survives the divorce decree and is not merged therein even where the decree incorporates the terms of the agreement. The property settlement agreement remains an enforceable contract, not subject to unilateral modification as a court order.

Our determination that the Agreement did not merge and remains an enforceable contract leads us to the next question posed by this case. That is, construing the Agreement as a contract, did these parties intend that the sub-paragraph B payments would terminate upon wife’s cohabitation or remarriage. In deciding this question, we will address husband’s argument that the trial court erred in admitting parol evidence to construe the Agreement.

Property settlement agreements between parties involved in or contemplating divorce are contracts like any others. They must be construed in accordance with the rules of law generally applicable to contract construction. Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985); Kleintop v. Kleintop, 291 Pa.Super. 491, 436 A.2d 223 (1981). These rules require that contractual terms that are clear and unambiguous must be given effect without reference to matters outside the contract. Id., 291 Pa.Superior Ct. at 495, 436 A.2d at 225 (citing In re Estate of Breyer, 475 Pa. 108, 115, 379 A.2d 1305, 1309 (1977)). It is equally clear, however, that where the terms of the contract are ambiguous, the court is free to receive extrinsic evidence of the parties’ intent, i.e. parol evidence, to resolve the ambiguity. In re Estate of Breyer, 475 Pa. at 116-17, 379 A.2d at 1309-10.

In this case the difficult issue is not what the parol evidence establishes as to the parties’ intent, because once that evidence is considered, the parties’ intent is unmistakable. They intended the payments to be a property distribution and they did not intend them to terminate. The difficult issue is whether the parol evidence should have been considered in the first place. We conclude that the trial court properly admitted parol evidence.

The question is whether the term “alimony” as used in paragraph third of the Agreement is ambiguous. We conclude that it is. We find support for this view in Kohn v. Kohn, 242 Pa.Super. 435, 364 A.2d 350 (1976). That case also addressed the question of the admissibility of parol evidence to interpret the word “alimony” in a separation agreement. In Kohn, the parties entered into a separation agreement that contained a provision requiring husband to pay wife payments labelled “alimony”. The agreement also provided that in the event husband could not deduct these payments for tax purposes, the payments would be reduced. However, the agreement also revealed that the payments were linked to wife’s responsibility to support the parties’ children, of whom wife had custody. For example, the payments were to cease upon the majority of one of the children. When husband later was awarded custody of the children, he ceased making the payments. When wife sought to enforce the agreement, husband contended that the payments, although designated “alimony”, were really intended to be child support that would end when wife no longer supported the children. Wife countered that the payments were unambiguously alimony which should continue and that the trial court could not receive parol evidence to construe the agreement. The trial court agreed with wife, but this court reversed and directed the trial court to receive the parol evidence. Id., 242 Pa.Superior Ct. at 441-42, 445-47, 364 A.2d at 352-53, 355-56.

The Kohn court concluded that although the agreement was facially clear, it contained a latent ambiguity, stating “[a]t the very least the term ‘alimony’, especially when used in separation agreements, may be described as latently ambiguous.” The court found the ambiguity largely by examining the agreement as a whole and determining that it contained several provisions suggesting that the true intent might have been to provide for child support, not alimony. The court also noted that although parties to settlement agreements often structure the terms of their agreements to achieve certain tax goals, this structuring might not reveal and may actually conceal the true intent of the parties as to the nature of the payments being made. See also VanKirk v. VanKirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984) (court applies standard rules of contract construction in interpreting alimony provisions of separation agreement).

In the instant case, we also find an ambiguity in the use of the word “alimony”. The ambiguity arises both from an examination of the face of the Agreement and from the latently ambiguous nature of the word “alimony” when used in property settlement agreements.

Examining the Agreement as a whole, we find that it actually provides for two types of payments to wife, both styled “alimony”. The first, provided for in sub-paragraph A of Article Third (quoted above), were to continue for two years. Later in the Agreement, husband agreed that he would also provide health and accident insurance to wife and pay her tuition and book costs for a two year community college program she intended to enter. These obligations were also to continue for two years. All of these payments appear to be aimed at giving wife a two year period in which to rehabilitate herself. Thus, this type of payment appears truly intended as alimony, paid to support wife while she became self-supporting. See Pacella v. Pacella, 342 Pa.Super. 178, 492 A.2d 707 (1985).

The second type of “alimony” payments are the sub-paragraph B payments, at issue in this case. They stand in sharp contrast to the first type. These payments are extended over a much longer period of time, namely, ten years. They cannot be reasonably construed to be aimed at enabling wife to become self-supporting, both because of their lengthy duration and because the first type of payment and husband’s other obligations for the first two years after separation already provided for her rehabilitation.

It is, therefore, clear to us from the face of the Agreement that the term “alimony” is ambiguous. Used in its first context, it appears clearly to provide for alimony. The meaning to be ascribed in sub-paragraph B is different. When the same word, in this case “alimony”, is used in an agreement to describe different concepts, we cannot say the meaning of the word is clear. While the first use of “alimony” is post-divorce spousal support, it is unclear what the parties intended when they also labelled the sub-paragraph B payments as “alimony”. Further, parol evidence is admissible to determine if the parties’ language was motivated by tax concerns or some other purpose. Parol evidence is required to interpret the meaning of the Agreement, which specifically states that the payments are “in the way of alimony, support and maintenance and as such are taxable income to her [wife] and may be deductible by husband.” Parol evidence will confirm the nature of the payments and whether they were designated as alimony to achieve a desired tax consequence. We note, as did the court in Kohn, that this use of “alimony” to achieve a tax consequence is commonplace in the drafting of property settlement/separation agreements.

We conclude that the Agreement is ambiguous as to the true intended meaning of the word “alimony”. Thus, we find that the trial court did not err in admitting parol evidence to resolve this ambiguity.

We need not tarry long in our review of the conclusion the trial court drew from the parol evidence it received. The trial court’s conclusion is adequately supported by the record. The parol evidence consisted of deposition testimony of husband, wife and the accountant who advised both of them in structuring the Agreement. Both the wife and the accountant unequivocally stated that the sub-paragraph B payments were intended to be a pay out over time of wife’s fifty percent interest in the parties’ real estate. They indicated that the pay out was required because husband was unable to pay the amount required in a lump sum. Moreover, the accountant’s work papers clearly reveal that the amount and duration of the payments was calculated on the basis of the value of wife’s share of the real estate. There is no question that these payments were intended as a property distribution and not as alimony to support or rehabilitate wife.

Since the payments were intended as a property distribution, it is beyond cavil that the parties also did not intend them to terminate upon cohabitation or remarriage of wife. There is no indication in the Agreement itself that they would so terminate. It provides that they are to continue even after husband’s death and the general termination provision of the Agreement allows termination only upon mutual written consent of the parties. Moreover, it is completely unreasonable to imply an intent that the payments would cease on cohabitation or remarriage as neither circumstance has anything to do with wife’s entitlement to her agreed share of the marital property.

In sum, husband and wife freely entered into an enforceable contract which the trial court properly construed to provide for a property distribution to wife that would continue despite cohabitation or remarriage.

Affirmed.

BECK, J.’s majority Opinion is joined by CIRILLO, President Judge, and CAVANAUGH, BROSKY and ROWLEY, JJ.

TAMILIA, J., files a dissenting statement.

JOHNSON, J., files a concurring and dissenting opinion.

MONTEMURO and POPOVICH, JJ., join Judge JOHNSON’S concurring and dissenting opinion.

TAMILIA, Judge,

dissenting.

I would remand this case to the panel with directions that original majority Opinion by Tamilia, J., be filed and that the review by the Court en banc be dismissed as improvidently granted. The review of this case by the Court en banc resulted on a certification by a majority of the panel, Beck, Tamilia, Johnson, JJ., with Tamilia dissenting to certification. In that certification, a proposed memorandum by Johnson, J., would have had the Court en banc consider the effect of amendments to the Divorce Code, section 401.1, having to do with modification of separation agreements. That issue was not raised in the original appeal and was not briefed before the Court en banc. Judge Beck, in her proposed en banc Opinion, held it was not to be considered. In writing to affirm, Judge Beck does not substantially differ from the original proposed panel decision by Tamilia,, J., which was guided by Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988), as is the en banc Opinion. Having decided the basis upon which certification was granted is not reviewable, the only recourse is to return the case to the panel, with instructions, and find that en banc review was improvidently granted.

JOHNSON, Judge,

concurring and dissenting.

In the trial court, Polly D’Huy (Wife) brought a declaratory judgment action seeking a determination as to her continuing right to receive alimony under the terms of a property settlement agreement. Gerard J. D’Huy (Husband) filed a petition for special relief seeking to terminate alimony payments required by the agreement. Husband appeals from the order which sustained Wife’s position and refused to terminate the payments to Wife.

The property settlement agreement provided that Husband would pay alimony to Wife at the rate of $400 per week for two years and at the rate of $1,650 per month for ten years thereafter, with payments to continue to be made, or the balance due under the agreement to be paid out in a lump sum by Husband's estate in the event of his death prior to the completion of the agreement.

The trial court found that the $1,650 monthly payments were not actually alimony as defined by section 104 of the Divorce Code, 23 P.S. § 104, but rather represented a payout of Wife’s share of marital property. The trial court therefore concluded that the payments were not subject to the termination provisions of Section 501(e) of the Divorce Code, 23 P.S. § 501(e) or the bar to alimony of Section 507 of the Code, 23 P.S. § 507, and that Wife’s right to receive those payments was not affected by her admitted cohabitation or intended remarriage.

On appeal, Husband asks us to revisit the question of whether incorporation of the settlement agreement into a divorce decree results in the agreement losing its independent effect, thereby requiring the application of Sections 501 and 507 of the Code. Subsumed under this issue is whether the word “alimony” as set forth in the written property settlement agreement is ambiguous, thus permitting the introduction of parol evidence to explain its meaning.

I must respectfully dissent from the majority’s insistence on revisiting Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988) along with those cases which preceded it, for the purpose of determining whether the agreement merged into the divorce decree or “lost its identity as an enforceable contract.”

On May 11, 1989, this court entered an order listing this case for argument before the court en banc. The only reason for affording en banc consideration was to determine the applicability of Section 2 of the Act of February 12, 1988, P.L. 66, No. 13, effective immediately, 23 P.S. § 401.1, (Act 13). The majority declines to consider the impact of newly enacted § 401.1 since neither party raised the issue on appeal. I must disagree.

Firstly, the appeal was taken on December 24,1987, some two months before the passage of Act 13, for the review of an order entered on December 1, 1987. It therefore is not surprising that the parties did not raise this issue initially. Secondly, the parties were directed to file supplemental briefs on the applicability of newly enacted Section 401.1 and they did so. Thirdly, the analysis in the majority opinion, slip opinion pages 5 — 9, of Sonder v. Sonder, supra; McGough v. McGough, 361 Pa.Super. 391, 522 A.2d 638 (1987); Commonwealth ex rel. Tokach v. Tokach, 326 Pa.Super. 359, 474 A.2d 41 (1984); Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981); and Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983), is exactly the kind of complexity which the legislature sought to obviate by passage of Act 13.

On February 12, 1988, Act 13 was approved, to take effect immediately, amending the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26. The amendatory act added a new section to the Divorce Code, providing as follows:

Section 401.1 Effect of agreement between parties
(a) A party to an agreement regarding matters within the jurisdiction of the court under this act, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this act to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.
(c) In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.

Appellant asks us to find the provisions of the agreement to be alimony. We need not set forth those provisions here, since, in my judgment, Section 401.1(c) of the Code, above, controls this appeal. There being no specific provision to the contrary in the agreement, the provisions regarding the disposition of existing property rights and interests between the parties, as well as alimony, are not subject to modification by the court. Since there exists no ambiguity in those sections of the parties’ agreement upon which Wife sought, and received, a declaratory judgment, we need not consider whether the word “alimony” contains any latent ambiguity. Even if it did, I read Section 401.1(c) as being very clear as to the legislative intent.

Without passing upon the rationale of the trial court, I would find that the order from which these consolidated appeals are taken did not modify the agreement between the parties. The order is in conformity with the statutory mandate.

Accordingly, I concur in the conclusion of the majority that the order should be affirmed. I would do so, however, on the basis of the legislative declaration that agreements regarding the disposition of existing property rights shall not be subject to modification by the court in the absence of a specific provision to the contrary. 23 P.S. § 401.1.

MONTEMURO and POPOVICH, JJ., join.

      . For purposes of clarity, we shall refer to the payments in dispute as the “sub-paragraph B payments” throughout the balance of this opinion.

      . We do not reach the question of whether the amendments to the Divorce Code concerning merger/incorporation, effective February 12, 1988, should be retroactively applied to this case. Although we requested supplemental briefing to the en banc court on this issue, on further consideration we find that since neither party raised the issue on appeal, this case is an inappropriate vehicle for deciding such an important question.

      . Appellant contends that there is language in the Sonder opinion suggesting that where a divorce decree incorporates a settlement agreement, unless the decree also expressly excludes merger, the agreement will be deemed merged without any further examination of the parties’ intent. Our reading of Sonder convinces us that the court did not intend to create such a hard and fast rule. However, to the extent that there is language in Sonder suggesting that the decree must expressly reject merger, such language is disapproved.

      . Husband argues that Kohn is inapplicable because it was decided before the adoption of the Divorce Code. We disagree and find that the reasoning of Kohn is applicable. Despite the definition of alimony in the Code, the term as used in this Agreement contains the latent ambiguity that is described in Kohn.