author: JOHNSON, Judge:

text:
    522 A.2d 641
    ESTATE OF Catherine M. TAYLOR. Appeal of Christina M. SMELTZER.
    Superior Court of Pennsylvania.
    Argued Nov. 20, 1986.
    Filed March 18, 1987.

      Robert B. Manchester, Bellefonte, for appellant.
    Samuel M. Raffensperger, Gettysburg, for appellee.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   JOHNSON, Judge:

On October 10, 1979, Catherine M. Taylor and her husband, Robert B. Taylor executed basically identical agreements of trust with an accountant. The distribution provisions of those respective agreements provided that:

In the event the assets of Settlor’s probate estate or the probate estate of Settlor’s husband, Robert B. Taylor, are insufficient to pay out the specific monetary bequests set forth in the last will and testament of Settlor, or the last will and testament of Settlor’s husband, Robert B. Taylor, or any codicils thereto, Settlor directs that Trustee, after the death of Settlor, her husband, Robert B. Taylor, and the said Gladys D. Henzler, shall pay to the said legatees the amounts of the legacies set forth in said last will and testament (the last to die as between Settlor and her husband) or any Codicils thereto, to the extent that probate assets were insufficient for that purpose.

Trust Agreement of Catherine M. Taylor, dated October 10, 1979 Section 5 ¶ E.

On March 29, 1982 Catherine Taylor executed an amendment to the First Agreement dated October 10, 1979. The amendment provided that:

In the event the assets of Settlor’s probate estate or the probate estate of Settlor’s husband, Robert B. Taylor, are insufficient to pay out the specific monetary bequests set forth in the last will and testament of Settlor, or the last will and testament of Settlor’s husband, Robert B. Taylor, or any Codicils thereto, Settlor directs that Trustee, after the death of Settlor, her husband, Robert B. Taylor, and the said Gladys D. Henzler, shall pay to the said legatees the amounts of the legacies set forth in the last will and testament of the Settlor or the same legacies as set forth in the last will and testament of Settlor’s husband, Robert B. Taylor, or any Codicils thereto, to the extent that probate assets were insufficient for that purpose, it being the intention of Settlor that only one set of those legacies be paid, either from Settlor’s estate or from the the estate of Settlor’s husband, Robert B. Taylor.

Amendment to Trust Agreement of Catherine M. Taylor dated March 29, 1982. Robert Taylor also executed an identical amendment to his trust agreement on the same date as Catherine.

On September 21, 1983 Catherine and Robert executed wills. Each will named 10 persons or groups to receive money under the will. Catherine died on January 26, 1984. However, as a result of the joint ownership of the marital property, Catherine’s will was not probated. On June 5, 1985 Robert revoked the 10 legacies provided in his will by lining out the provisions. Robert died on July 28, 1985 and his will was subsequently probated.

On October 8, 1985 Adams County National Bank, Trustee of the trust estate created by Catherine, filed its First and Final Account and a Statement of Proposed Distribution, wherein the Trustee indicated its intent to distribute approximately $33,000.00 to the 10 legatees listed in Catherine’s will. The balance of the trust, approximately $10,-000.00 would be distributed to Christina M. Smeltzer (appellant herein) as the residuary legatee of the trust. Smelt-zer’s exceptions to the proposed schedule of distribution were denied. The court approved the First and Final Account, confirmed the schedule of distribution and directed that distribution be made accordingly. This timely appeal followed.

In interpreting a trust instrument, the intent of the settlor is paramount and if that intent is not contrary to law, it must prevail. Matter of Estate of Krebs, 334 Pa.Super. 635, 483 A.2d 919 (1984).

In support of its order, the trial court focused on the language of the Trust Agreement of October 10, 1979 and the Amendment to the Trust Agreement of March 29, 1982. In determining that Catherine Taylor’s intent was that the ten legatees be paid the court found the change in the language of the distribution provision to be significant. The original Trust Agreement provided that the legatees be paid the amounts as set forth in the last will and testament of the last to die between Catherine and Robert. Under this provision the court concluded that it was clear that the beneficiaries were to be determined by the will of the last to die. However, the Amendment of the Trust Agreement of Catherine Taylor directed that the Trustee:

shall pay to the said legatees the amounts of the legacies set forth in the last will and testament of Settlor or the same legacies as set forth in the last will and testament of Settlor’s husband, Robert B. Taylor, or any Codicils thereto, to the extent that probate assets were insufficient for that purpose, it being the intention of Settlor that only one set of those legacies be paid, either from Settlor’s estate or from the estate of Settlor’s husband, Robert B. Taylor.

Amendment to Trust Agreement of Catherine Taylor dated March 29, 1982. Section 5 ¶ E. (emphasis added). According to the trial court the language directing the Trustee to pay the legacies set forth in the last will of the Settlor (Catherine Taylor) or the same legacies set forth in the last will of Robert Taylor evidenced Catherine’s intent that the legatees be paid.

Appellant argues that the language of the Amendment to the Trust Agreement of Catherine Taylor is ambiguous. Appellant submits that in order to ascertain the true intent of the trust provisions, the court must place itself in the armchair of both Catherine and Robert Taylor and consider not only the language and the scheme of the instrument but also the facts and circumstances with which they were surrounded. These circumstances include the condition of their family, the natural objects of their bounty and the amount and character of their property. In Re Irrevocable Inter Vivos Trust Agreement of Hanley, 307 Pa.Super. 153, 452 A.2d 1360 (1982). Affirmed sub. nom. Siebert v. Bird, 503 Pa. 119, 468 A.2d 1093 (1983). Appellant asserts that she is the natural object of the bounty of both Catherine and Robert Taylor as demonstrated by the fact that she is single beneficiary of the residue of the trusts. Appellant further argues that a reading of the original Trust Agreements, and Wills of the Taylors clearly reflects an intention by the parties that the survivor of the two (Catherine and Robert) have the authority to declare who would be the ultimate beneficiary of property. In support of this argument appellant points to the facts that, (1) the majority of the Taylors’ property was jointly owned, and (2) the Taylors entered into identical trusts, trust amendments and identical wills. Consequently, appellant contends that the language of the March 29, 1982 amendment to Catherine’s (as well as Robert’s) Trust Agreement was merely stylistic rather than reflective of her intent that the survivor between she and Robert not be able to ultimately determine who would be the beneficiaries of their estate.

Our Supreme Court has sáid that:

A settlor’s intent is to be determined from all the language within the four corners of the trust instrument, the scheme of distribution and the circumstances surrounding the execution of the instrument. Only if a settlor’s intent cannot be ascertained with reasonable certainty will a court apply canons of construction, to attribute a reasonable intention to the settlor in the circumstances.

Farmers Trust Co. v. Bashore, 498 Pa. 146, 150, 445 A.2d 492, 494 (1982). Moreover, where there are two or more instruments relating to a trust they should be construed together to effectuate the settlor’s intent. In Re Blish Trust, 350 Pa. 311, 38 A.2d 9 (1944).

Looking at the trust agreement, its amendment, as well as the will of Catherine Taylor, we are of the opinion that the orphan’s court was correct in concluding that Catherine Taylor intended that the legacies under her will be satisfied from the trust proceeds in the event that the assets of her probate estate were insufficient to pay out the specific monetary bequests. The fact that Robert Taylor revoked the same legacies under his last will and testament cannot be construed to defeat Catherine Taylor’s scheme of distribution under the Trust Agreement.

We agree with the trial court that the change in the wording of the distribution provision effected by the March 29, 1982 amendment is significant. The original provision clearly reflects Catherine Taylor’s intent that the survivor, between she and her husband, have the ability to determine the beneficiaries of their estate. The amendment reflects a change in that intent, by directing the trustee to pay the legacies as set forth in her will or the same legacies as set forth in her husband’s will in the event that the assets of the probate estate were insufficient. We cannot agree with appellant that the change in the wording of the trust agreement’s distribution provision was merely stylistic and not reflective of Catherine Taylor’s intent that the legacies be paid. Accordingly, we affirm the order approving the First and Final Account, confirming the schedule of distribution and directing distribution.

Order affirmed.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    522 A.2d 643
    COMMONWEALTH of Pennsylvania v. Bradley R. BAKER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1984.
    Filed March 19, 1987.

      L. Edward Glass, Johnstown, for appellant.
    David Flower, Assistant District Attorney, Somerset, for Com., appellee.
    Before ROWLEY, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This case is on remand from the Pennsylvania Supreme Court to resolve the remaining issues left open by this panel’s initial decision to suppress a warrant for “staleness”, a decision which was reversed on appeal. Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986).

The first issue we shall address concerns Baker's contention that the court below erred in hearing the testimony of an individual (Agent Todoric), other than the affiant on the search warrant, in considering whether probable cause for its issuance existed. This testimony, argues the defendant, “was so exhaustive as to sufficiently taint [sic] the entire proceeding[.]” And, albeit not articulated by the defendant, this would necessitate a suppression of the evidence consisting of forty items of drugs and related paraphernalia as reflected in the receipt/inventory of seized property form. We disagree.

To start with, notwithstanding the testimony of Agent Todoric, the two affiants whose names appear on the face of the application for the search warrant, i.e., Detective Berkebile and Agent Lemon, testified before the court below to supplying the magistrate with all of the information contained in the warrant and affidavit. Their accounting, in and of itself, would be sufficient to establish the sufficiency of information presented to the magistrate to uphold the validity of the warrant. As for the claim by the defendant that the proceedings before the suppression court were somehow infected with the testimony of one not an affiant to the warrant, and not appearing before the magistrate, is unconvincing when analogized to the law relating to the treatment of prejudicial evidence heard by a judge presiding over a criminal case.

In this Commonwealth, the courts have treated such a claim of prejudice by first examining the judge’s remarks as to any disclaimer, e.g., “he disregarded the defendant’s prior criminal record in reaching a conclusion as to guilt.” See Commonwealth v. Brown, 328 Pa.Super. 215, 476 A.2d 969 (1984). The reason is that a judge, as a factfinder, is presumed to disregard inadmissible evidence and consider only competent evidence in making his decision. Commonwealth v. Glover, 266 Pa.Super. 531, 405 A.2d 945 (1979); McCormick on Evidence § 60 (2d Ed.1972). Thus, we have held that a trial court’s express statement at a post-verdict motions hearing negating any affect the evidence of the appellant’s arrests may have had on the verdict was sufficient to purge the taint of the questioned evidence. See Commonwealth v. Guest, 500 Pa. 393, 398, 456 A.2d 1345, 1348 (1983); Brown, supra.

A fortiori, we see no reason not to extend the same rationale to a defendant’s claim of error occurring during the course of a suppression hearing.

Instantly, the court below specifically discounted the testimony of Agent Todoric as a factor in reaching its conclusion in finding the warrant valid and the evidence seized as a result thereof admissible at trial. It did so in footnote 4 of its opinion to us; viz.:

At the suppression hearing, an individual testified, Agent Steven Todoric, who was not present at the magistrate’s office at the time the search warrant was issued and thus gave no sworn information in support of the warrant. However, at the time of the testimony at the hearing, the court was under the mistaken impression that he indeed was present and disclosed the information to the magistrate that he disclosed at the hearing. Since this was not the situation, his testimony cannot be used and was not used, in the decision of this motion.

Given the suppression court’s disclaimer, we have no hesitancy in holding that the defendant’s initial claim to be meritless. See Brown, supra.

The defendant’s last protestation, as to the alleged failure of the police to announce their identity and purpose prior to executing the search warrant, is no more persuasive than his previous argument.

The facts reveal that at approximately 4:30 p.m. on the 12th of March, 1981, Detective Berkebile, Agents Lemon and Caroff of the Bureau of Drug Control and two patrol officers arrived at the defendant’s residence. The police “knocked on the door and received no response.” This caused the police to stand on the defendant’s porch and discuss among themselves what they should do. During this hiatus, the police started conversing with some of the youngsters nearby. At this time, the defendant’s brother came upon the scene. As Detective Berkebile recalls it:

We talked to him. We explained the reason why we were there, that we had a search warrant for his brother’s mobile home. And he said that he would get a key and leave [sic] us in.

Approximately one-half hour after the search began, the defendant arrived and was informed of the purpose of the police activities. Following the search and seizure of contraband, the defendant was arrested and ultimately charged with the offenses which are the subject of his appeal.

As to the execution of the warrant, Detective Berkebile testified that Officer Grattan knocked on the defendant’s door several times without securing a response. Although Detective Berkebile conceded that no one in the search team announced, “Police, open up”, he did go on to recount being informed by the youngsters and the defendant’s brother at the scene that the defendant was not at home. They waited a half-hour before the brother’s arrival.

Counsel for the defendant would have us apply the requirements of Pa.R.Crim.P. 2007 (Knock and Announce Rule) with such rigidity that we disregard the admonition that police are not required to comply with the formalities of procedural due process when to do so would be a “useless act”. We believe the federal statute (18 U.S.C. § 3109), which requires announcement of authority and refusal prior to forcible entry, is similar to our Rule 2007 in that both seek to 1.) prevent violence and physical injury to the police and the occupants; 2.) prevent unnecessary invasion of individual privacy; and 3.) prevent the needless destruction of private property. See Commonwealth v. Duncan, 257 Pa.Super. 277, 285-86, 390 A.2d 820, 825 (1978), citing United States v. Bustamante-Gamez, 488 F.2d 4, 9-10 (9th Cir.1973), cert. denied, 416 U.S. 970, 97 S.Ct. 1993, 40 L.Ed.2d 559 (1974); see also United States v. Little, 753 F.2d 1420, 1435 (9th Cir.1984). We look to it for some guidance.

Section 3109, when it comes to unoccupied dwellings, has been held to be inapposite on the basis that it is futile to require the authorities to knock and announce their identity and purpose and wait for a refusal of entry from someone who is not there. See Payne v. United States, 508 F.2d 1391, 1393-94 (5th Cir.1975) cert. denied, 423 U.S. 933, 96 S.Ct. 287, 46 L.Ed.2d 263 (1975); United States v. LaMonte, 455 F.Supp. 952 (E.D.Pa.1978).

Instantly, the police were informed by children in the vicinity and the defendant’s own brother that he was not at home. In fact, the brother elaborated that the defendant had gone with his parents somewhere and he (the brother) would get the key to let the officers into the mobile home.

Based on the preceding, the entry of the police without complying with the knock and announce requirements of Rule 2007 was not at odds with or violative of the objectives sought to be attained by the Rule’s implementation, i.e., protection of privacy, mitigation of violence and prevention of needless destruction of property by forced entry. None of these was being compromised under the facts here.

In Commonwealth v. Wallace, 293 Pa.Super. 73, 437 A.2d 996 (1981), cited by the defendant in support of his contention that the police’s conduct was reprehensible and constitutionally infirm, “[t]he police officers did not know that [the defendant] was away from his apartment until they entered and searched it.” 293 Pa.Super. at 76-77, 437 A.2d at 998. Such was not the case at bar.

As for the other case proffered by the accused to advance his contention of a Rule 2007 violation, i.e., Commonwealth v. Clemson, 234 Pa.Super. 387, 338 A.2d 649 (1975), the court there was pre-occupied with whether a delay of ten seconds before entry of the defendant’s premises was sufficient time to surrender the premises voluntarily to the authorities, and, thus, is distinguishable from the case instantly in that no occupant was present to be concerned about relinquishing his premises peacefully.

Courts in several jurisdictions have rejected the contention that an effort must be made to locate and bring an absent occupant to the premises before entry can be made. See Payne, supra; United States v. Gervato, 474 F.2d 40 (3rd Cir.1973), cert. denied, 414 U.S. 864, 94 S.Ct. 39, 38 L.Ed.2d 84 (1973); State v. Iverson, 364 N.W.2d 518 (S.D. 1985); Diamond v. State, 363 So.2d 109 (Ala.Cr.App.1978); People v. Peck, 38 Cal.App.3d 993, 113 Cal.Rptr. 809 (1974); Kraft v. State, 19 Md.App. 108, 309 A.2d 643 (1973); State v. Gutierrez, 91 N.M. 542, 577 P.2d 440 (1978), overruled in part on other grounds, State v. Cervantes, 92 N.M. 643, 593 P.2d 478 (1979); State v. Wilson, 41 Ohio App.2d 240, 325 N.E.2d 249 (1974).

We herein deem it appropriate to affirm, by joining the ranks of those jurisdictions permitting the execution of a search warrant in the absence of the occupant of the premises being searched, what our Supreme Court hinted at in Commonwealth v. Harris, 479 Pa. 343, 388 A.2d 688 (1978) (Per Curiam Opinion). We would caution, however, that the police must still prove in court that they took appropriate measures to satisfy themselves that an occupant was not on the premises. And, of course, the sufficiency of the police’s efforts will be for the court to decide.

Our review of the record and case law leads us to deny the defendant’s allegations of error. Accordingly, we affirm the judgment of sentence.

       Rule 2007 reads:
      (a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.
      (b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstancesYequire his immediate forcible entry.
      (c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

       See States v. Nolan, 718 F.2d 589, 598 n. 15 (3rd Cir.1983).

       18 U.$.C. § 3109 reads in relevant part:
      The officer may break open anj outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance..-..
      June 25, 1948, c. 645, 62 Stat. 820.

      . But see United States v. Nolan, 718 F.2d 589, 598 n. 15 (3rd Cir. 1983), wherein the Court held that permissibility of the government’s entry of one’s premises in his absence to effectuate a search warrant was an "open" question in the Third Circuit.

      . One could contemplate various scenarios in which the defendant’s intentional absence from his residence would be motivated to frustrate the efforts of the police. For example, the occupant could avoid a search by merely leaving the premises on approach of the police or he could permanently defeat the warrant by staying away from the premises. See Payne v. United States, 508 F.2d 1391, 1394 (5th Cir. 1975), cert. denied, 423 U.S. 933, 96 S.Ct. 287, 46 L.Ed.2d 263 (1975).


text:
    522 A.2d 647
    James I. AMMON, Appellant, v. ARNOLD PONTIAC-GMC, INC. v. Kurt R. SCHUSSLER. James I. AMMON v. ARNOLD PONTIAC-GMC, INC. v. Kurt R. SCHUSSLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1986.
    Filed March 13, 1987.

      Paul A. Tershel, Assistant Public Defender, McMurray, for appellant (at 687) and appellee (at 698).
    Stephen P. McCloskey, Washington, for appellant (at 698) and appellee (at 687).
    Allan M. Cox, Pittsburgh, for Arnold, appellee.
    Before WICKERSHAM , BROSKY and JOHNSON, JJ.

       This decision was reached prior to the resignation of Wickersham, J.

   JOHNSON, Judge:

This case involves an automobile accident in which 17 year old Ammon was a passenger in an automobile operated by Schussler. The automobile collided with a truck which an employee of Arnold Pontiac had parked in the street. Ammon sustained injuries in the accident and executed a release in consideration for payment from Schussler’s insurance company. Ammon brought suit against Arnold Pontiac-GMC, Inc., which joined Schussler as an additional defendant. Following a jury trial Ammon was awarded $325,-000 in damages. The jury attributed 40% of the causal negligence to Arnold Pontiac and 60% to Schussler.

Following post-verdict motions, the court of common pleas en banc on February 8, 1985, ordered a new trial on the issue of damages unless Ammon filed a remittitur with the prothonotary for any amount in excess of $60,000. Ammon appealed to the Superior Court on the excessiveness of verdict issue. Arnold cross-appealed regarding liability issues. Among other things, the Superior Court remanded the case to the trial court to determine the effect of a release which Ammon had executed. The trial court determined that the release did not bar recovery because Schussler and Arnold had effected a waiver of the release. The court directed the prothonotary to enter judgment in favor of Ammon in accordance with the February 8, 1985 order.

Ammon, Arnold and Schussler appeal to this Court. Subsequent to the filing of the appeal Arnold entered a settlement with Ammon and Arnold’s appeals were discontinued.

Two issues remain for our review:

I. A. IS THE CONSIDERATION OF PRE-TRIAL SETTLEMENT OFFERS IMPERMISSABLE IN DETERMINING WHETHER A VERDICT IS EXCESSIVE?
B. DID THE TRIAL COURT RELY UPON OTHER IMPROPER CONSIDERATIONS IN ITS DETERMINATION OF WHETHER THE VERDICT IS EXCESSIVE?
II. DID THE TRIAL COURT ERR: (1) BY FAILING TO FULLY ADDRESS THE ISSUE OF WHETHER THE RELEASE BARRED RECOVERY IN WHOLE OR IN PART AGAINST ARNOLD PONTIAC-GMC, INC. (2) BY FAILING TO FULLY DETERMINE THE LEGAL EFFECT OF THE RELEASE IN THAT IT FAILED TO DETERMINE WHAT TYPE OF JOINT TORTFEASOR RELEASE WAS ENTERED INTO BY THE PLAINTIFF AND (3) BY RULING THAT THE APPELLEES ABANDONED OR WAIVED THE DEFENSE OF RELEASE?

In the first issue, Ammon argues that the lower court erred by relying on pre-settlement offers in finding the jury verdict to be excessive. In the opinion which accompanied the February 8, 1985 order, the court of common pleas en banc reviewed the jury verdict of $325,000 and ordered a new trial on the issue of damages alone unless Ammon filed a remittitur with the prothonotary for any amount in excess of $60,000. We have reviewed that opinion and the applicable case law and find that the lower court improperly-applied the law of this Commonwealth to the facts of this case. We accordingly reverse the trial court’s February 8, 1985 order and reinstate the jury verdict.

We commence our discussion by recognizing that “the granting or refusal of a new trial because of excessiveness is peculiarly within the discretion of the court below and we will not interfere, absent a clear abuse of discretion.” Robert v. Chodoff, 259 Pa.Super. 332, 366, 393 A.2d 853, 871 (1978). A verdict will not be held to be excessive unless the excessive size of the verdict shocks the court’s sense of justice. Id. In Chodoff, id., this Court listed six factors which are considered in determining whether a particular verdict is excessive:

(1) the severity of the injury, (2) whether plaintiff’s injury is manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff, (3) whether the injury will effect the plaintiff permanently, (4) whether the plaintiff can continue with his employment, (5) the size of plaintiff’s out-of-pocket expenses, and (6) the amount plaintiff demanded in the original complaint.

Chodoff, 259 Pa.Super. at 367, 393 A.2d at 871 (citing Kemp v. Philadelphia Transportation Co., 239 Pa.Super. 379, 361 A.2d 362 (1976)). The trial court applied these factors in its February 8 opinion in reaching its conclusion that the verdict was excessive. We disagree with its application of factors four, five and six.

The fourth Chodoff factor is whether the plaintiff can continue with his employment. Ammon did not seek to recover for lost earnings, lost wages or loss of future earning capacity. In Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983), rev’d on other grounds, 506 Pa. 383, 485 A.2d 742 (1984), this Court was confronted with a case in which plaintiffs had not sought damages for lost wages and the jury was not instructed to consider them in arriving at a damage figure. This Court found consideration of the fourth Chodoff factor to be irrelevant to a determination of excessiveness, since the plaintiffs had not sought to recover lost wages.

Ammon similarly did not seek recovery for lost wages. The trial court, however, discussed the fourth Chodoff factor and concluded that lost earnings and lost earning capacity could not be considered as a basis which would support the jury’s verdict. Since Ammon had not sought recovery for these items the fourth Chodoff factor is irrelevant and the trial court should not have discussed it.

The fifth factor under the Chodoff analysis is the size of plaintiff’s out-of-pocket expenses. Under the No-fault Act, which was applicable to the accident in this case, the medical expenses were not presented to the jury. The trial court, however, considered Ammon’s loss of a wrestling scholarship to the University of Kentucky as an “out-of-pocket expense.” The court compared the $14,500 maximum value of the scholarship with the amount of the verdict. The court concluded that when that disparity was considered along with the other factors the verdict had to be set aside. We believe the court should not have even applied the fifth factor to the facts of this case. The No-fault Act prevented Ammon from introducing evidence of his medical expenses. These would have been the bulk of his out-of-pocket expenses. Absent these expenses, a comparison of the value of the lost scholarship to the size of the verdict will necessarily evidence a disparity, since the bulk of his out-of-pocket expenses are not being considered. Where the law prevents the introduction of evidence of out-of-pocket expenses, the fifth Chodoff factor is irrelevant and thus it should not have been considered by the trial court.

The sixth and final Chodoff factor is the amount plaintiff demanded in the original complaint. We noted in Feld v. Merriam, supra, that the Pennsylvania Rules of Civil Procedure prohibit a plantiff who is seeking unliqui-dated damages from demanding a specific sum of money. Such a plaintiff may only set forth whether the amount is or is not in excess of $10,000. Pa.R.C.P. 1021(b). Thus, as were the plaintiffs in Feld, Ammon was prohibited from demanding a specific amount of damages. The sixth Cho-doff factor is then inapplicable to the facts of this case. The court should not have discussed it, or applied it.

During the court’s discussion of the amount claimed in the complaint, the court made explicit reference to the demands which Ammon made during settlement discussions. The court stated “The plaintiff claimed damages in excess of $10,000; at settlement discussions on the morning of trial the plaintiff’s demand ranged from $8,000 to $12,-000. The disparity between these figures and the verdict amount is self-evident.” Opinion, 2/8/85 at 9. It has long been established that an offer to compromise a claim, not accepted, cannot be introduced into evidence. Durant v. McKelvey, 187 Pa.Super. 461, 144 A.2d 527 (1958). Not only is settlement without litigation to be encouraged, but offers to compromise are not, in and of themselves, admissions of liability. Smith v. Leflore, 293 Pa.Super. 149, 437 A.2d 1250 (1981). To consider such a factor when determining the possible excessiveness of a verdict discourages the settlement of disputes. Plaintiffs will be dissuaded from making conservative settlement demands if they know that such demands will be used against them at a later stage in the proceedings. Of equal importance, it is entirely inappropriate to review a jury verdict based upon facts which, as a matter of law, were barred from jury consideration. The court should not have made reference to or considered Ammon’s settlement demands.

When we view the court’s consideration of inadmissable settlement demands together with its improper consideration of the three final Chodoff factors, we conclude that the court has abused its discretion. Where the extent of consideration of irrelevant factors, coupled with inadmissable facts, is as substantial as appears in this case, this Court can only conclude that the trial court has lost its ability to assess the jury award consistent with established Pennsylvania law. On a motion for remittitur the court may only look to those Chodoff factors which reasonably would have been before the jury prior to the time they entered the verdict. Any other approach or analysis results in a reviewing tribunal improperly interfering with the jury function.

We have reviewed the trial transcript at length, including the testimony of Ammon, Dr. Imbriglia and the other witnesses. We find that the evidence supports the verdict. The evidence establishes that Ammon suffered severe injuries as a rear-seat passenger in the accident at the basis of this suit. After the car in which he was riding collided with a parked truck Ammon was knocked unconscious and was covered with blood. When his father was called to the scene of the accident, Ammon was in such a condition that his father thought Ammon was dead. In fact, Ammon’s left hand was crushed in the accident. Various bones in the hand were broken and displaced. After the hand was initially set, using stainless steel pins to hold the bones in place, Ammon underwent surgery two additional times in an attempt to regain complete use of the hand. Even following the surgery and physical therapy Ammon lost 10% of the motion in the hand. At the time of trial the hand not only was scarred but was a source of continuing physical pain and embarrassment to Ammon.

In addition to the severe hand injury, Ammon suffered seven broken ribs, a broken collar bone, lacerations to his shoulder and above his eye and a concussion. Initially, Ammon was in pain with every breath, and was given extensive pain medication during his initial hospital stay. The extensive injuries which Ammon sustained had a significant impact on Ammon’s life. We cannot say that with such evidence before the jury, a verdict of $325,000 was excessive. Nothing in the record suggests, nor has the trial court shown, that the jury was in any way guided by partiality, prejudice, mistake or corruption. Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983). Accordingly, we reverse the order of February 8, 1985. We reinstate the jury’s verdict, and remand for proceedings consistent with this opinion.

In Schussler’s appeal he contends that the trial court ruled improperly on the release issue. Ammon allegedly entered into a release with Schussler prior to commencement of this lawsuit. Schussler asserts that Schussler’s insurance company paid Ammon $14,000 in consideration for Ammon executing a release. After suit was commenced both Arnold and Schussler raised the release as a defense and filed motions for judgment on the pleadings. The lower court did not rule on the motions and the case later proceeded to trial. In post-trial motions Arnold and Schussler raised, among other issues, the effect of the release. The lower court granted a new trial on the excessiveness of verdict issue but did not rule on the release issue because Ammon had commenced a separate equity action after trial to reform the release. Appeal was taken to the Superior Court, which remanded the case to the trial court to determine the legal effect of the release. The trial court held that the release did not bar recovery. The court entered judgment in favor of Ammon in accordance with the February 8, 1985 order which granted a new trial on damages.

The trial court’s rationale for finding that the release does not bar recovery is that defendants waived the defense by failing to properly raise the issue at trial. The court explained that:

from the time of the argument on the motion for judgment on the pleadings in 1983, to a time after the verdict, the defendants did none of the following: (1) They did not offer the release into the record; (2) they did not request the court to make a determination of the validity of the release, or of its effect in the case; (3) they did not, even during settlement negotiations immediately before trial, ask the court to interpret the release.

Opinion, 4/18/86 at 4. The court concluded that “It is disingenuous for the defendants to come forward after the verdict and protest vehemently that there is a general release, the effect of which is to discharge all defendants.” Opinion 4/18/86 at 4. We agree.

A trial court en banc may not give relief on post-verdict motions when such relief was not requested during trial. Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981). It was incumbent upon Schussler to pursue further relief after no ruling was made on his motion for judgment on the pleadings. For him to allow the entire trial to pass, without again raising the complete defense of general release until post-verdict motions, results in the waiver of the defense.

In his brief Schussler argues that the defense of settlement and release was not waived because a joint tortfeasor release may not be admitted into evidence at trial. Schus-sler directs this Court’s attention to 42 Pa.C.S. § 6141 and Weingrad v. Philadelphia Electric Co., 324 Pa.Super. 16, 471 A.2d 100 (1984). The statute upon which Schussler relies, as well as the Weingrad case which interprets it, provide that when a settlement and release regarding personal injuries or property damages have not been pleaded as a complete defense, then they are not admissible at trial. Here the additional defendant Schussler alleged in Paragraph 4 of his Answer and New Matter that the release was a general release barring action against him. As such the case law and statute relied upon by Schussler did not prevent the admission at trial of evidence of the release. We find Schussler’s arguments to be without merit and affirm that portion of the April 18, 1986 order which finds that the release did not. bar recovery.

We reverse the order of February 8, 1985 which granted a new trial on the issue of damages unless plaintiff were to have filed a remittitur and reinstate the jury verdict.

We affirm so much of the April 18, 1986 order as held that the release did not bar recovery. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, § 101 et seq., 40 P.S. § 1009.101 et seq. (repealed 1984).


author: WICKERSHAM, Judge:

text:
    522 A.2d 652
    COMMONWEALTH of Pennsylvania v. Richard E. McAULAY.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1986.
    Decided March 5, 1987.

      James N. Bryant, State College, for appellant.
    Donna Rae, Assistant District Attorney, Lock Haven, for Com., appellee.
    Before WICKERSHAM, ROWLEY and TAMILIA, JJ.
   WICKERSHAM, Judge:

Richard E. McAulay appeals from the judgment of sentence imposed upon him by the Court of Common Pleas of Clinton County.

In the early morning hours of December 30, 1984, appellant was drinking with a friend in a Lock Haven bar known as Sal’s. A few minutes before closing, a female patron of the bar named Theresa Watt approached appellant and struck up a conversation. Appellant, who did not know Ms. Watt, accepted her invitation to accompany her to a party. Realizing that he was too drunk to drive, however, he gave her the keys to his new Ford pickup, after ascertaining that she could drive a standard shift vehicle. Unfortunately, he failed to ascertain her sobriety, or lack thereof. They got into the truck and Ms. Watts proceeded to take off on a 100 foot careening trip into a telephone pole. Witnessing this abortive trip was a nearby Lock Haven police officer, who promptly went to the scene. Appellant suffered a head injury in the accident, but recovered; Ms. Watt was uninjured. The truck and telephone pole were totalled. A consensual blood test performed on Ms. Watt shortly thereafter at the hospital revealed a blood alcohol content of .242 percent. She also revealed to the officer at that time that her driver’s license had been suspended, another fact she had neglected to mention to appellant at the bar.

On January 7, 1985, Ms. Watt was charged with driving under the influence and driving under suspension and eventually was accepted for Accelerated Rehabilitative Disposition.

On January 8, 1985, appellant was charged with the summary offense of permitting on unauthorized person to drive, 75 Pa.C.S. § 1574. He subsequently pled guilty to this offense before a district justice and paid a fine. On January 11, 1985, after appellant had pled guilty to the first offense, he was charged by the same officer with the misdemeanor offense of permitting violation of title, 75 Pa.C.S. § 1575, for letting Ms. Watt drive his truck while intoxicated. Appellant filed a motion to quash which was denied on April 24,1985. Appellant pled not guilty, but was convicted of this offense following a jury trial on September 4, 1985. His post-verdict motions were denied and on March 7, 1986, he was sentenced to serve forty-eight (48) hours to twelve (12) months in jail, to pay a fine of $500 and costs, and to attend and successfully complete an alcohol highway safety school and an alcohol abuse treatment program. This timely appeal followed.

Appellant raises two issues before us:

1. Did the lower court err in refusing to hold that the subsequent prosecution violated either Rule 109 or Rule 110 of the Pennsylvania Crimes Code?
2. Did the lower court err in refusing to hold that the subsequent prosecution violated the Fifth Amendment of the United States Constitution, as well as the Pennsylvania Constitution?

Brief for Appellant at 3.

Despite our observation that the consequences suffered by appellant as a result of this brief fiasco were more severe than those suffered by the actual perpetrator of the events, careful consideration of the record, the briefs of the parties, and the applicable statutes and caselaw convinces us that the lower court did not err in allowing appellant’s trial on the instant (second) charge to proceed.

Initially appellant was charged with and pled guilty to violating 75 Pa.C.S. § 1574, a summary offense, which states in pertinent part:

§ 1574. Permitting unauthorized person to drive
(a) General rule. — No person shall authorize or permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under this chapter or who is not licensed for the type or class of vehicle to be driven.

Subsequently, he was charged with violating 75 Pa.C.S. § 1575, which states:

§ 1575. Permitting violation of title
(a) General rule. — No person shall authorize or permit a motor vehicle owned by him or under his control to be driven in violation of any of the provisions of this title.
(b) Penalty. — Any person violating the provisions of subsection (a) is guilty of the same offense as the driver of such vehicle and subject to the same penalties including any suspension or revocation of the operating privilege or the assessment of points.

This charge stemmed from Ms. Watt’s violation of 75 Pa. C.S. § 3731(a). Since under the provisions of section 1575(b), appellant is guilty of the same offense as Ms. Watt and is subject to the same penalties, he was charged with a misdemeanor of the second degree. See 75 Pa.C.S. § 3731(e)(l)(i); 18 Pa.C.S. § 1104(2).

Section 109 of the Crimes Code, 18 Pa.C.S. § 109, states in pertinent part:

§ 109. When prosecution barred by former prosecution for the same offense
When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances:
* * * * # *
(3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two cases failure to enter judgment must be for a reason other than a motion of the defendant.

Despite appellant’s arguments to the contrary, we find that section 109 is inapplicable to the instant case. Section 109 concerns consecutive prosecutions for a violation of the same provision of the statutes. Appellant was initially charged with violating 75 Pa.C.S. § 1574; he was subsequently charged with violating 75 Pa.C.S. § 1575. These are clearly two different provisions of the Motor Vehicle Code. While some similarity exists between the sections, we cannot agree with appellant’s contention that he could have been charged under section 1575 for allowing Ms. Watt to drive while her license was suspended. In another case involving the same two sections of the Motor Vehicle Code, our court held that it has long been the law in our state that “a person cannot be charged under general provisions of a penal code where special provisions are available.” Commonwealth v. Burkett, 300 Pa.Super. 72, 75, 445 A.2d 1304, 1306 (1982). Such is the situation herein. Appellant could not have been charged under section 1575 for allowing Ms. Watt to drive while her license was suspended. Nor could he have been charged under section 1574 for allowing her to drive while intoxicated. Therefore, section 109 of the Crimes Code is inapplicable to the instant case.

Section 110 of the Crimes Code, 18 Pa.C.S. § 110, states in pertinent part:

§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title ... and the subsequent prosecution is for:
Hs s}£ * * %
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil[.]

While at first glance, appellant’s reliance upon section 110 seems more promising, our supreme court has ruled to the contrary. In Commonwealth v. Breitegan, 500 Pa. 384, 456 A.2d 1340 (1983), cert. denied, 464 U.S. 991, 104 S.Ct. 480, 78 L.Ed.2d 678 (1983) and Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), the supreme court held that the compulsory joinder rule [of Commonwealth v. Campana ] and section 110 do not apply to prior summary convictions for traffic violations under the Motor Vehicle Code. In both cases, the defendants had pled guilty to summary traffic offenses prior to being prosecuted for more serious crimes (aggravated assault in Beatty and driving under the influence, homicide by vehicle, and involuntary manslaughter in Breitegan) stemming from the same incidents. Since the situation in the instant case is identical, we hold that section 110 does not apply to this case. See also In Interest of R.R., 317 Pa.Super. 334, 464 A.2d 348 (1983); Commonwealth v. Quackenbush, 314 Pa.Super. 324, 460 A.2d 1162 (1983). Cf. Commonwealth v. Meyers, 345 Pa.Super. 520, 498 A.2d 945 (1985); Commonwealth v. Bonczak, 342 Pa.Super. 167, 492 A.2d 445 (1985); Commonwealth v. Kresge, 317 Pa.Super. 405, 464 A.2d 384 (1983).

Our finding that sections 109 and 110 of the Crimes Code do not apply to appellant’s situation does not automatically resolve appellant’s second issue. See Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied, — U.S. —, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985); Commonwealth v. Johnson, 319 Pa.Super. 463, 466 A.2d 636 (1983). However, we find no error by the trial court when it held that the subsequent prosecution did not violate appellant’s double jeopardy rights under either the United States or Pennsylvania Constitution. While we have held that the double jeopardy clause applies to summary traffic violations, see Commonwealth v. Johnson, supra, we find that in accordance with traditional constitutional analysis, there was no double jeopardy violation in prosecuting appellant for permitting Ms. Watts to drive while intoxicated.

Under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the focus is on the proof necessary to prove the statutory elements of each offense. There is no violation of double jeopardy if each statute requires proof of an additional fact that the other does not. Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985); Commonwealth v. Hoburn, 335 Pa.Super. 536, 485 A.2d 24 (1984). Here, the summary offense under section 1574 required proof that appellant authorized or permitted Ms. Watt to operate his truck upon a highway when she was not licensed to do so. The misdemeanor offense under section 1575 required proof that appellant authorized or permitted Ms. Watt to operate his truck while she was under the influence of alcohol to a degree which rendered her incapable of safe driving or when her blood alcohol content was .10% or greater. Each offense required proof of some fact or facts that the other did not. Thus the instant prosecution was not barred by double jeopardy. The offenses in this case are separate both because they serve distinct purposes and because they require different elements of proof even though they arose out of the same-incident or course of conduct. Commonwealth v. Allen, supra. “For double jeopardy, it is not enough that the two offenses be part of the same criminal episode; double jeopardy principles bar double prosecution only for a single offense.” Commonwealth v. Meyers, supra, 345 Pa.Super. at 528, 498 A.2d at 949.

Since the Commonwealth’s prosecution of appellant for permitting violation of title was not barred by either sections 109 or 110 of the Crimes Code or by the double jeopardy provisions of the federal or state constitutions, we must affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Appellant’s description of the events were as follows:
      Q When did you meet Miss Watt?
      A Ten minutes before I left that bar that night.
      Q Would you describe the — to the ladies and gentlemen of the jury, this meeting?
      A It was the last call. I was standing at the end of the bar. I looked at her and she looked up and said, "Do you want to go to a party?” I said, “Sure. Why not?” I wasn’t ready to go home. So, I knew everybody else was going to go get something to eat, but I thought, no, I didn’t want to do that. So, we left. And I can remember very distinctly.
      Q Well, now, you say the opening line was, “Do you want to go to a party?”
      A She asked me to go to a party.
      Q Did you know her name?
      A No. Well, I figured how are you ever going to meet somebody unless you — .
      Q Did she give any indication to you that she was drunk or — ?
      A No, she didn’t. She ran across the street. I asked her, I said, "Can you drive?” She grabbed the keys out of my hands and we run [sic] from on this side of Wendy’s clear to the back where the Dempsey Dumpster sits. She got in, fired up the truck.
      Q And what did you do or say?
      A I didn’t say too much. It was an exciting ride. I saw the devil, I think.
      Q Well, what happened?
      A After she started the truck up, I knew it was running wide open. I could just tell it. And she popped the clutch, and we just missed a car coming out of the parking lot. I thought, Uh-oh. By the time we got out to the intersection to where the 150 is and I thought she had it under control. The next thing I know we’re going across the road at a 45 degree angle, we just missed a parking meter — put the money in — we jumped the curb, we went down the sidewalk, just missed the Junior’s Foodette. And the next thing I — .
      Q What were you doing?
      A I got threw back. I mean I got smashed back against the back of the truck.
      Q Were you telling her to stop or do anything?
      A I was screaming and hollering at her, but it didn’t do any good. It just like happened so fast that it was all — I mean, it just — it was all over. The next thing I know we went across — I remember seeing another vehicle coming up the road on the opposite side. I thought, Oh-no, we’re going to hit that thing head on. The next thing I know, we hit the pole and I was glad it was over.

        Q Did your truck get totalled?
      A Yes, it did.
      Q Did she ever tell you that she didn’t have a driver’s license?
      Q Did she ever give you any indication that she was incapable of operating the vehicle?
      A No.
      Q Until it was too late?
      A No. I figured whenever she said she knew where the party was and could drive, hey, you know, why should I drive. She knew where the party was. I figured everything was okay.
      N.T. at 36-38.

      . Appellant filed timely and specific post-verdict motions on September 9, 1985. In a letter dated November 8, 1985, which is included in the record, appellant requested that the trial court forgo argument and deny the motions so that the case could proceed immediately to sentencing and an appeal. The trial court’s November 18, 1985 order misinterpreted this letter by appellant as a withdrawal of the post-verdict motions. The court’s March 11, 1986 order, however, amended its interpretation of appellant’s letter to more closely conform to appellant’s request. Accordingly, this order denied the motions as requested, retroactive to November 18, 1985.

      . It should be noted that even if section 110 did apply to the instant case, appellant’s argument would still fail because as the lower court points out in its opinion, the offenses were neither within the jurisdiction of a single court as required by section 110(l)(ii), nor did they fit under section 110(l)(iii)(A) because they required proof of certain facts not required by the other.

      . In discussing the similar textual and policy considerations of the fifth amendment of the United States Constitution and article 1, section 10 of the Pennsylvania Constitution, our court has stated:
      State constitutional provisions define state law and should not automatically be considered a duplicate of an analogous federal provision. However, some state provisions have been determined to be coextensive with their federal counterparts. Commonwealth v. Santner, 308 Pa.Super. 67, 454 A.2d 24 (1982); Commonwealth v. Smyser, 205 Pa.Super. 599, 211 A.2d 59 (1965)....
      In addition, our court in Commonwealth v. Beaver, 317 Pa.Super. 88, 463 A.2d 1097 (1983), observed that to date, our Supreme Court had not given a more restrictive or more expansive interpretation of Pennsylvania’s double jeopardy clause than that given the fifth amendment by the United States Supreme Court.

        Commonwealth v. Meyers, 345 Pa.Super. 520, 528, 498 A.2d 945, 949-50 (1985). See also Commonwealth v. Marconi, 340 Pa.Super. 463, 490 A.2d 871 (1985) (state courts have not given state citizens broader double jeopardy protection than that provided by United States Supreme Court interpreting federal constitution).


author: WIEAND, Judge: BECK, Judge,

text:
    522 A.2d 1107
    COMMONWEALTH of Pennsylvania, Appellant, v. John MELILLI, a/k/a John C. Melilli, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Nicholas DeSTEFANO, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Shirley DORANZO, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. John T. DEVLIN, a/k/a John Thomas Devlin, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Richard D. MASTRO, a/k/a Richard Mastro, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Samuel M. DORAZIO, a/k/a Doranzo, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Frank R. PERRI, a/k/a Frank Perri, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Louis T. PISELLI, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued May 30, 1986.
    Filed Jan. 29, 1987.
    Reargument Denied April 10, 1987.
    April 10, 1987, Order Vacated and Reinstated June 9, 1987.

      Rona S. Totoki, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

      F. Emmett Fitzpatrick, Jr., Philadelphia, for appellees.
    Before WIEAND, BECK and JOHNSON, JJ.
   WIEAND, Judge:

Presently before the Court for review in this consolidated appeal are orders of the trial court suppressing evidence obtained by the Commonwealth via pen registers and telephone intercepts, as well as physical evidence subsequently seized pursuant to warrant. The trial court’s suppression orders were based upon the absence of a neutral determination that probable cause existed for the use of pen registers.

In December, 1982, on the basis of information which had been provided by confidential informants, the Commonwealth began an investigation into illegal gambling operations in Philadelphia. In January, 1983, Pennsylvania State Troopers received information from a confidential informant about an illegal numbers operation that was being conducted in Philadelphia through telephone number (215) 271-7078. Records maintained by Bell Telephone Company of Pennsylvania revealed that this number had been assigned to the defendant, Richard Mastro, at Vollmer Street, in Philadelphia. A dialed number recorder (DNR) was installed on this telephone pursuant to an order entered on January 6, 1983 by the Honorable Michael J. Conroy of the Municipal Court of Philadelphia. In subsequent orders entered on February 25, March 25, and May 24, 1983, Judge Conroy authorized the continued use of the DNR on Mas-tro’s telephone for additional thirty day periods.

In February, 1983, law enforcement officers received further information from a second confidential informant that illegal sports bookmaking was being conducted by a man referred to as “Nick” at telephone number (215) 336-8460. Records maintained by Bell Telephone Company showed that this number had been subscribed to by defendant, Nicholas DeStefano, at 2438 Juniper Street in Philadelphia. On February 17, 1983, law enforcement officers obtained an order from Judge Conroy authorizing the installation of a pen register on DeStefano’s telephone for a period of thirty days. This authorization was extended for additional thirty day periods by orders dated March 17, April 14, and May 4, 1983.

Information obtained through the pen register installed on Mastro’s telephone disclosed a pattern of telephone calls made from Mastro’s telephone to another telephone and transferred through call forwarding to telephone number (215) 389-8903. Bell Telephone Company’s records revealed that this number had been subscribed to by Jerry DiJo-seph, located at 1604 South Clarion Street in Philadelphia. On March 4, 1983, Judge Conroy authorized the installation of a pen register on DiJoseph’s telephone. Additional thirty day extensions were authorized on March 30 and May 4, 1983.

Based upon information obtained through these pen registers and through additional confidential informants and corroborated by independent police investigation and surveillance, law enforcement officials obtained authorization from the Honorable J. Sydney Hoffman of the Superior Court to install wiretaps on the telephones of Messrs. Mastro, DeStefano and DiJoseph. These wiretaps were installed on April 15, 1983. Interception of the telephone calls made on Mastro’s and DeStefano’s telephones terminated on April 26, 1983. Interception of DiJoseph’s telephone conversations continued until May 4, 1983.

The investigation continued, and on May 9, 1983, law enforcement officials obtained search warrants for twenty-three locations, including the residences of each of the eight defendants. Pursuant to these warrants, the police seized physical evidence of corrupt organizations and illegal gambling. The eight defendants were arrested on December 8, 1983, and were charged with conspiracy, corrupt organizations and related offenses. The cases were consolidated on August 1, 1984.

All of the defendants filed pre-trial motions to suppress the evidence which had been obtained pursuant to the pen registers and wiretaps, as well as the physical evidence which had been seized pursuant to the search warrants. A hearing was held and, on September 17, 1984, the suppression court suppressed the evidence which had been obtained pursuant to the Mastro pen register. A decision regarding the remainder of the evidence sought to be suppressed was delayed until briefs could be submitted by the parties. On October 29, 1984, the suppression court ordered that this remaining evidence also be suppressed. On April 18, 1985, the suppression court filed formal findings of fact and conclusions of law.

In Commonwealth v. Beauford, 327 Pa.Super. 253, 269, 475 A.2d 783, 791 (1984), appeal dismissed, 508 Pa. 319, 496 A.2d 1143 (1985), a panel of this Court held that Article 1, section 8 of the Pennsylvania Constitution prohibited the installation and use of pen registers without a warrant issued upon probable cause. The Court rejected the reasoning of the United States Supreme Court in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which had earlier held that the use of a pen register was not a search under the Fourth Amendment of the Constitution of the United States. The Commonwealth contends in the instant appeal that the suppression court erred when it applied the Beauford requirement of probable cause retroactively to the pen registers which had been used in the instant case because these pen registers had been installed prior to the date on which Commonwealth v. Beauford, supra, was decided. We are constrained to disagree. “[W]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question [has been] properly preserved at all stages of adjudication up to and including any direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983). The Beauford court did not declare its ruling to be prospective only; and in the case sub judice, the issue of lack of probable cause has been properly preserved for review at all stages. Therefore, the Beauford rule is applicable to the facts of the instant case.

The Commonwealth also contends that only those defendants upon whose telephones the pen registers were installed have standing to challenge the evidence obtained from the pen registers. However, in Commonwealth v. Beauford, supra, this Court suppressed evidence which had been obtained through the use of pen registers as to each of six defendants despite the fact that all defendants had not had a pen register installed on their telephones. In rejecting the decision of the United States Supreme Court in Smith v. Maryland, supra, the Court said: “[W]e do not hesitate to say that a caller and the person he calls expect and are entitled to as much privacy in the fact that they are talking to one another as in what they say to each other.” Commonwealth v. Beauford, supra 327 Pa.Super. at 266, 475 A.2d at 789 (emphasis added). From this we conclude that all defendants in the instant case have standing to challenge the evidence obtained through the pen registers which were installed on the telephones of Messrs. Mastro, DeStefano and DiJoseph.

The matter of probable cause was considered by this Court in Commonwealth v. Doty, 345 Pa.Super. 374, 498 A.2d 870 (1985). There we said:

The standard for determining whether probable cause existed [for a wiretap or a pen register] is the same as that used to determine cause for search warrants. See: United, States v. Talbert, 706 F.2d 464, 467 (4th Cir.1983); United States v. Falcone, 505 F.2d 478, 481 (3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975). The facts contained in the affidavit for a search warrant must be such that an independent, issuing authority, exercising reasonable caution, can conclude that the items sought are connected with criminal activity and that they will be found in the place to be searched. Commonwealth v. Council, 491 Pa. 434, 443, 421 A.2d 623, 627 (1980); Commonwealth v. Ryan, 300 Pa.Super. 156, 167, 446 A.2d 277, 283 (1982). Similarly, in an application for a wiretap [or a pen register], the Commonwealth must establish probable cause to believe that (1) a person has or is about to commit one of the offenses enumerated in the statute, (2) that communications [or information] relating to that offense will be transmitted, and (3) that such communications [or information] will be intercepted on the facility under surveillance. See: United States v. Armocida, [515 F.2d 29, 35 (3d Cir.), cert. denied sub nom., Conti v. United States, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975) ].

Id., 345 Pa.Superior Ct. at 397-398, 498 A.2d at 882.

“[P]en register applications must [also] comply with Pa.R. Crim.P. 2003(a) and (b), which require that evidence establishing probable cause for issuance of a warrant appear in writing within the four corners of the affidavits submitted to the issuing authority ... [and be] ‘supported by oath or affirmation subscribed to by the affiant.’ ” Commonwealth v. Beauford, supra 327 Pa.Super. at 269 n. 7, 475 A.2d at 791 n. 7. As with all searches not falling within one of the recognized exceptions to the warrant requirement, a finding that probable cause exists must be made by a neutral judicial authority before a pen register can be installed.

The magistrate must make a judicial determination, albeit a nontechnical, common sense judgment ... as to whether probable cause exists. It is not enough for a policeman to present an affidavit to the magistrate prior to the search which affidavit the judiciary may consider on the issue of probable cause with complete hindsight after the police have completed their search. The magistrate must actually make a finding of probable cause to validate the warrant before he issues it. Moreover, he must do it by written order.

Commonwealth v. Chandler, 505 Pa. 113, 123-124, 477 A.2d 851, 856 (1984) (emphasis added).

In the instant case, the orders authorizing installation and use of pen registers were not based upon findings of probable cause. At the time when the applications for the use of pen registers were made, both the affiants and Judge Conroy were operating under the belief that a warrant based upon probable cause was not a necessary condition for the use of a pen register. It was for this reason that Judge Conroy made no findings before issuing orders authorizing installation of the pen registers in question. The orders do not suggest that Judge Conroy ever considered whether probable cause existed.

Moreover and in any event, the affidavits accompanying the pen register applications were insufficient to show the existence of probable cause. The affidavits in support of the Mastro and DeStefano pen registers contained vague and conclusory averments in support of the reliability of the tips received from the confidential informants; and police attempts to corroborate the information had been inconclusive. The affidavit in support of the installation of the DiJoseph pen register was based entirely upon information obtained through the Mastro pen register. Absent this information, the affidavit was void of facts showing probable cause.

Despite these errors which occurred in obtaining the prosecution’s evidence, the Commonwealth urges us to adopt the reasoning set forth by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and hold that evidence is not subject to suppression if law enforcement officials have acted in reasonable, good faith reliance upon authorization issued by a neutral magistrate but which later is found to be defective because unsupported by probable cause.

In United States v. Leon, supra, the United States Supreme Court examined the purposes of the exclusionary rule and determined that:

“The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official conduct was pursued in complete good faith, however, the deterrence rationale loses much of its force.”

Id. at 919, 104 S.Ct. at 3419, 82 L.Ed.2d at 696, quoting Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182, 194 (1974). The Supreme Court concluded, therefore, that “suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” Id. 468 U.S. at 918, 104 S.Ct. at 3419, 82 L.Ed.2d at 695 (footnote omitted). See also: Ex parte State v. Crittenden, 476 So.2d 632 (Ala.1985); State v. Anderson, 286 Ark. 58, 688 S.W.2d 947 (1985); Stabenow v. State, 495 N.E.2d 197 (Ind.App.1986); State v. Shannon, 472 So.2d 286 (La.App. 1985); State v. Sweeney, 701 S.W.2d 420 (Mo.1985); State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986); State v. Wilmoth, 22 Ohio St.3d 251, 490 N.E.2d 1236 (1986); McCary v. Commonwealth, 228 Va. 219, 321 S.E.2d 637 (1984); Patterson v. State, 691 P.2d 253 (Wyo.1984), cert. denied sub nom., Spoon v. Wyoming, 471 U.S. 1020, 105 S.Ct. 2048, 85 L.Ed.2d 311 (1985). But see: People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451 (1985); Polk v. State, 704 S.W.2d 929 (Tex.App.1986).

Suppression of the evidence obtained by the installation of the pen registers in the instant case cannot further the purposes of the exclusionary rule. At the time when the pen registers were installed, existing law explicitly told law enforcement officials that the use of pen registers did not constitute a search. Pursuant to the Constitution of the United States, according to Supreme Court interpretation, the use of pen registers did not require a prior showing of probable cause. See: Smith v. Maryland, supra. According to the law then in effect, therefore, law enforcement agencies were not required to obtain a court order or warrant in order to install and make use of a pen register. Nevertheless, in order to comply with telephone company requirements, police in the instant case went further than the law required and requested from a neutral magistrate an order authorizing installation of pen registers. The magistrate, who also acted pursuant to existing law, issued an order authorizing the use of pen registers without a showing of probable cause. It was not until later that the Superior Court, applying principles of state constitutional law, outlawed the use of pen registers without a prior showing of probable cause. It seems clear, therefore, that the use of pen registers by law enforcement authorities was accomplished in good faith, in accordance with statutory authority in the Commonwealth of Pennsylvania, and consistently with procedure explicitly approved by the Supreme Court of the United States. To suppress evidence obtained under these circumstances would not further any of the purposes intended to be served by the exclusionary rule. Indeed, to deprive the Commonwealth of the use of evidence obtained in good faith and in accordance with then existing law as determined by the highest court in the land, would not only fail to serve the purposes of the exclusionary rule but would tend to defeat a substantial public interest in law enforcement. Therefore, we agree with the Commonwealth that an exception to the exclusionary rule must be created which has application narrowly to situations in which law enforcement officials have acted (1) in good faith; (2) in reasonable reliance upon a procedure expressly sanctioned by existing judicial decisions; and (3) pursuant to authorization obtained from a neutral magistrate. Because those prerequisites have been met in the instant case,'we reverse the orders suppressing the evidence obtained by the use of the pen registers.

We also reverse the order suppressing the evidence obtained through the telephone intercepts and the physical evidence seized pursuant to the search warrants. The suppression court’s order was based upon its conclusion that absent the pen register evidence, the affidavits in support of the wiretap applications and search warrants were insufficient to establish probable cause. However, in light of our holding that the pen register evidence should not have been suppressed, it was unnecessary to discount that evidence when determining the existence of probable cause.

Even without a “good faith” exception in this case, we would nonetheless be constrained to reverse that part of the order suppressing evidence obtained via wiretaps installed on the telephones of Mastro and DeStefano. Without evidence obtained through the use of pen registers on their phones, the affidavits in support of the Mastro and DeStefano intercepts were nevertheless sufficient to confirm the existence of probable cause. Both affidavits contained detailed information which had been provided to law enforcement officials by confidential informants. This information was sufficient to permit a reasonable person to conclude that Mastro and DeStefano had engaged in illegal gambling activities and were continuing to do so by using telephones located at their respective residences. The only question concerning these affidavits was whether the reliability of informants’ tips had been sufficiently established. We conclude that the reliability of the informants had been established.

“It is well settled that a 'tip’ from an unnamed informant can properly form the basis for probable cause provided there is adequate evidence of the informant’s credibility.” Commonwealth v. Miller, 334 Pa.Super. 374, 381, 483 A.2d 498, 501 (1984). See: Commonwealth v. Carlisle, 348 Pa.Super. 96, 100, 501 A.2d 664, 666 (1985).

In the Mastro affidavit, the existence of probable cause was based upon information which had been provided by three confidential informants. Two of the informants had admitted being numbers writers for an illegal gambling operation. They stated that they had placed bets regularly by dialing the telephone number which police traced to Mastro. Their involvement in the gambling operation provided them with a strong basis for knowledge. Moreover, the first informant’s reliability was adequately shown by the fact that he had previously provided law enforcement officials with information which proved to be reliable and accurate. See: Commonwealth v. Carlisle, supra; Commonwealth v. White, 311 Pa.Super. 146, 151-152, 457 A.2d 537, 539 (1983). The same is true with regard to the third confidential informant. Although the affidavit did not recite that the second informant had previously provided reliable information, the information provided by this informant was corroborated by the information obtained from the other two informants. Thus, it was worthy of consideration. See: Commonwealth v. Jones, 506 Pa. 262, 271, 484 A.2d 1383, 1388 (1984). Finally and most importantly, the statements of the informants had been against their penal interests and, therefore, could be found worthy of belief. See: Commonwealth v. Stickle, 484 Pa. 89, 97-98, 398 A.2d 957, 961-962 (1979); Commonwealth v. Neidig, 340 Pa.Super. 217, 222, 489 A.2d 921, 923-924 (1985); Common wealth v. Yacoubian, 339 Pa.Super. 413, 423-424, 489 A.2d 228, 233 (1985).

Similarly, the affidavit in support of the DeStefano wiretap application was based primarily upon information provided by a confidential informant. Not only was the informant involved in the gambling operation through his role as bettor and numbers writer, thereby establishing a strong basis for knowledge, but he had also provided law enforcement officials with information in the past which had proved to be reliable. His reliability and credibility, therefore, were adequately established. See: Commonwealth v. Carlisle, supra; Commonwealth v. White, supra.

The same cannot be said with respect to the evidence obtained through the use of the wiretap installed upon Jerry DiJoseph’s telephone. The affidavit in support of this wiretap application relied exclusively upon evidence obtained through the pen register which had been installed on Richard Mastro’s telephone. Without this evidence, the affidavit would have been insufficient to establish probable cause. Thus, were we not constrained to recognize a good faith exception to the exclusionary rule, the evidence obtained through this last wiretap would have to be deemed insufficient to show probable cause.

The orders suppressing evidence obtained by using pen registers and wiretaps as well as the physical evidence seized pursuant to search warrants are reversed. The case is remanded for further proceedings. Jurisdiction is not retained.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I respectfully dissent from the majority’s introduction of a broad good-faith exception based on its interpretation of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). I concur with the retroactive application of Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), appeal dismissed, 508 Pa. 319, 496 A.2d 1143 (1985).

I. Good-Faith Exception

Although in principle I endorse the introduction of a narrow Leon good-faith exception into Pennsylvania jurisprudence, I find the instant case is an inappropriate vehicle by which to do it.

The good-faith exception has recently been enunciated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). In Leon the Court applied the good faith exception to admit evidence discovered pursuant to a search warrant not supported by probable cause on the ground that the police who conducted the search had reasonably relied on the issuance of the warrant by a neutral magistrate. In Sheppard, the Court concluded that the exclusionary rule does not require the suppression of evidence seized by law enforcement officials acting in objectively reasonable reliance on a technically defective warrant. In both of those cases, the issuing authority made an objective assessment based on established standards of whether there was probable cause to support the warrant. In hindsight it was determined that probable cause did not support the warrant in Leon, and although probable cause did support the warrant in Sheppard, the warrant was defective because it failed to specify with particularity the kind of items that the search was aimed at uncovering.

In the case sub judice the search involved placing a pen register on the telephone of the appellant. Under the applicable law at the time, the police could legally install a pen register on their own initiative. No warrant was required as a precondition to the installation. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Therefore, no mandated standard existed by which the issuing authority could assess whether to permit the installation of the pen register. In the case sub judice the issuing authority issued the warrant as an accomodation to the telephone company because the company refused to install the pen register without judicial approval.

It appears that the issuing authority in the case sub judice rubber-stamped the request by the police without bringing to bear its independent judgment. I would find the good-faith exception inapplicable because the facts in this case do not support it. Without standards for an independent assessment by the issuing authority of the pre-search actions of the police, the object of a search becomes vulnerable to unsupervised, and perhaps overzealous, law enforcement activity even if performed in good faith. No safeguard exists that the neutral issuing authority assessed the information presented by the police. No pre-search record exists by which a reviewing court can assess the grounds on which the authorization was approved.

Since no warrant was required in this case, the majority’s opinion leads dangerously close to approving a good-faith exception for warrantless searches.

The Leon and Sheppard doctrine creates a narrow good-faith exception, where the issuing authority has assessed the presearch information. To extend the doctrine to situations where the issuing authority is a rubber stamp or to situations where no warrant is necessary would grant the police too broad discretion. In determining whether the police acted in good faith in relying on the authorization, the reviewing court would have to rely on after-the-fact documentation by the police. After the fact, the police would have to assemble a case in favor of good faith. In most cases, the police would not have the pre-search opportunity to document good faith in searches without a warrant because most warrantless searches are conducted in emergency situations. Also, in situations where search-and-seizure doctrine is unclear, the police could rely totally on their interpretation to support a good-faith exception.

Extension of the good-faith exception to warrantless searches would begin seriously to erode the established body of search and seizure law and I fear the majority’s opinion leads to that end.

II. Retroactivity

Although I agree that the rule in Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), appeal dismissed, 508 Pa. 319, 496 A.2d 1143 (1985), is retroactive, I do not agree with the majority’s analysis of the issue of retroactivity. The majority bases its analysis solely on Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983). Cabeza requires that all decisions in criminal cases be retroactive absent a specific statement in the opinion rendering it prospective only. As Beauford declines to determine its own retroactivity, the Cabeza rule would automatically render it retroactive. Although the Cabeza rule establishes a strong presumption of retroactivity, it should not be the end of retroactivity analysis. The rule is too broad. Our Supreme Court has begun to limit its breadth. Commonwealth v. Gillespie, 512 Pa. 349, 516 A.2d 1180 (1986). Rather than adopting a standard of analysis, the rule is conclusory. In providing clear direction as to applicable law, Cabeza hampers the court’s discretion and deprives the court from making equitable considerations. It sacrifices fairness to certainty.

The preferable standard was recently enunciated by Justice Papadakos in his concurrence in Commonwealth v. Harper, 512 Pa. 155, 516 A.2d 319 (1986). Justice Papada-kos refers to Cabeza as our present rule of retroactivity in criminal cases. Yet, realizing that Cabeza is not a tool for analysis, he reiterates the Stovall standard:

The criteria to be employed in determining whether a newly adopted rule should be applied retroactively are: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, [388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967)].

Harper, 512 Pa. at 162, 516 A.2d at 323 (Papadakos, J. concurring).

Pursuant to Harper and Stovall, I review the countervailing considerations. The purpose of the new rule requiring search warrants for use of pen registers is to safeguard the important state constitutional right against unreasonable searches. The reliance by law enforcement authorities on the previous standard which was established in 1979 in Smith v. Maryland, is clear from the facts in the case sub judice. Before Beauford was decided, law enforcement officials used pen registers without court authorization. However, it is not possible to assess the extent of this reliance. Therefore, we cannot determine the impact that retroactive application of the new requirement or standard will have on the administration of justice. Clearly, retroac-tivity will cause the suppression of evidence in some cases. Since retroactivity analysis in criminal decisional law begins with a strong presumption in favor of retroactivity and since the purpose of the new rule is of constitutional dimension, I agree that the Beauford rule should have retroactive application.

Although I find it is proper to apply the Beauford principle retroactively, I conclude that the good-faith exception is inapplicable. I would, therefore, affirm.

      . A DNR is a type of pen register which attaches to a telephone line and records the numbers dialed on that particular telephone and monitors the date, time, and length of time the telephone receiver is off the hook. It does not, however, monitor the contents of any communication or record the origin of any incoming calls. See: 18 Pa.C.S. § 5702; Commonwealth v. Beauford, 327 Pa.Super. 253, 259, 475 A.2d 783, 786 (1984), appeal dismissed, 508 Pa. 319, 496 A.2d 1143 (1985). At the time that this DNR was installed, judicial authorization was not required for the installation of pen registers. However, Bell Telephone Company required law enforcement officials to present a court order before installing pen registers.

      . DiJoseph was not a defendant in any of the cases that form the basis of this appeal.

      . In United States v. Leon, supra, the police had obtained a facially valid search warrant from a magistrate based upon facts found by the magistrate to constitute probable cause. Some of the evidence seized pursuant to the warrant was later suppressed when the district court determined that the affidavit in support of the warrant application had been insufficient to establish probable cause. The Court of Appeals for the Ninth Circuit affirmed this determination. On further appeal, the Supreme Court of the United States reversed, holding that although the magistrate’s issuance of the warrant had been erroneous, "the officers’ reliance on the magistrate’s determination of probable cause [had been] objectively reasonable, and [therefore] the application of the extreme sanction of exclusion [was] inappropriate.” United States v. Leon, supra 468 U.S. at 926, 104 S.Ct. at 3423, 82 L.Ed.2d at 701. The facts in the instant case, although distinguishable from those in Leon, are even more compelling of the result we reach today.