author: BECK, Judge:

text:
    568 A.2d 672
    Robert GEY, Annette Gey, Donald Bindas, Judith Bindas, Thomas W. Jurecko, Janet B. Jurecko, Geoffrey Frey and Charlene Frey v. Dennis BECK and Patricia Beck. Appeal of Donald BINDAS, Judith Bindas, Thomas J. Jurecko, Janet B. Jurecko, Geoffrey Frey and Charlene Frey.
    Superior Court of Pennsylvania.
    Argued April 13, 1989.
    Filed Jan. 8, 1990.

      S. Michael Streib, Pittsburgh, for appellants.
    Marvin A. Fein, Pittsburgh, for appellees.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   BECK, Judge:

The question presented is whether a restrictive covenant that specifies that all lots in a residential development be known and designated as single family residential lots should be specifically enforced by requiring the developers to remove a road they constructed over one of the lots.

Appellants are homeowners who purchased lots in a plan known as the West Gate development. Appellee grantors and developers of the residential plan recorded the plan in 1983 and revised it in 1985. The revision increased the number of lots from 10 to 28. The plan calls for a cul-desac community with one road, bordered by residential lots with no intersecting roads. Appellees gave appellants a document containing “protective covenants,” which provided:

(A) These restrictions and covenants shall run as covenants with the land and shall be binding upon the undersigned [defendants Dennis and Patricia Beck], and all persons claiming under or through them____
(B) That Lot Nos. 1 through 29 [designated as Lots 201 through 228 on the recorded West Gate I Revised Plan], both inclusive, in said Plan shall be known and designated as single family residential lots.

Appellants also observed a large sign at the entrance to the plan stating that the lots came with “protective covenants” and showing a drawing of the plan which corresponded to the recorded plan, except for the numbering system used to identify the lots. One of the appellant purchasers was orally advised that the single road servicing the development would not be connected with or to any other streets or developments.

In 1986, appellees applied for approval of a new subdivision plan calling for a new street, “Cindi Drive.” The street was to be constructed on one of the lots of the West Gate Plan to connect it with other roads. Appellants objected to this plan at a borough meeting to no avail. The plan was approved by the borough and appellees began construction of Cindi Drive.

Subsequently, appellants initiated an equity action seeking preliminary and permanent relief in the form of an injunction prohibiting appellees from using the residential lot to construct a road and directing appellees to record their covenants so as to give notice to all future grantees.

Appellants argued that the covenants restricted the lots to residential use, thus implying that no lot could be used to build a road and the street would remain a cul-de-sac. The Chancellor issued an adjudication in which he found appellants’ right to relief to be clear, noting that (1) the covenants prepared by appellees were binding upon them whether or not they were recorded or noted in the deeds and (2) the language of the covenants forbids the building of a public road on property designated as single family residential lots. A preliminary injunction was ordered granting the relief requested by appellants, contingent upon appellants posting a $100,000 bond for damages that might be suffered by appellees until trial and final adjudication. Appellants did not have the resources to post the bond and therefore the preliminary injunction never became final. The road was built and the matter came before the court for final adjudication.

In its adjudication dated May 19, 1988, the trial court adopted the following statement of facts as set forth in appellants’ brief:

The matter came before the Honorable Martin I. (sic) Wekselman on plaintiffs’ request for preliminary relief. After viewing the written documents and hearing testimony, on April 10, 1987, Judge Wekselman rendered an Adjudication in which he found plaintiffs’ right to relief to be clear. Of import to the instant proceedings is the fact that Judge Wekselman ruled in the course of the Adjudication that the Covenants prepared by defendants are binding upon defendants whether or not they are recorded or noted in defendants’ deeds, and that the language of those covenants forbids the building of a public road upon property designed as “single family residential lots.” Subsequent to Judge Wekselman’s Adjudication, a Preliminary Injunction was issued granting the relief requested by plaintiffs, but contingent upon them posting a bond in the amount of $100,000 for damages that may be suffered by defendants until trial and final adjudication. As plaintiffs did not have the resources to post this bond without jeopardizing their savings and the homes they sought to protect, the preliminary injunction did not become final, the offending road was built, and the matter is now before the Court for final adjudication.

Against this factual backdrop, the court went on to consider whether enforcement of the covenant should be granted. The chancellor noted:

despite the fact that there is no specific mention in the restrictive covenants or in the deeds or anywhere else that the West Gate Plan would always be a development of homes along a one-street cul-de-sac, such specific reference is not required for enforcement. Everyone knew that the lots in the West Gate Plan were reserved for single-family residences only. Defendants had committed themselves to that and the construction of a road on one of the lots is an obvious violation of that negative easement.

Despite this finding, the court went on to conclude:

The Chancellor is, nevertheless, not disposed to grant the relief requested. The restrictive covenants in this case were designed primarily to maintain the overall tone of the community with respect to the types of dwellings to be erected and their value. Although plaintiffs might have been interested in maintaining a cul-de-sac, that does not appear to have been the overall or even principal purpose of the restrictive covenants, although they can be read to require that that condition remain in effect.

The court found that the properties had increased in value, and that appellants had not shown that the presence of Cindi Drive caused an increase in traffic or materially affected the character of the property or appellants’ enjoyment of their property. The court entered an adjudication and decree nisi directing that the restrictive covenant be recorded but denying appellants’ other request. In denying appellants’ motion for post-trial relief, the chancellor concluded “although the covenants appear to have been breached, the specific enforcement sought by appellants would confer no significant benefit and would not be appropriate.” This appeal followed.

Appellants contend that the Chancellor erred in denying injunctive relief where: (1) he found that the covenants did prohibit the building of Cindi Drive, that appellants had relied on the covenants in purchasing their homes and that the covenants had been intentionally and willfully breached; (2) developers/appellees conveyed the property rights to appellants only a short time before the violation; and (8) the facts demonstrated that equitable relief was proper even though appellants could not show financial harm. Appellants also assert error inasmuch as the Chancellor prevented them from showing the injuries they will suffer as a result of the appellees’ violations, holding that this would call for speculation. Appellants maintain that the loss of the cul-de-sac feature of the property resulting from construction of the road has caused and will continue to cause hardship to them in the form of the loss of the benefits originally promised under the restrictive covenant.

Initially, we note that the scope of appellate review from a final decree in equity requires us to determine whether or not the chancellor made an error of law or committed an abuse of discretion. Alderfer v. Pendergraft, 302 Pa.Super. 210, 214, 448 A.2d 601, 603 (1982). More specifically, we note that although the chancellor’s findings of fact have the force of a jury verdict and usually will not be disturbed on appeal, “conclusions of law or fact, being derived from nothing more than the chancellor’s reasoning from underlying facts and not involving a determination of credibility of witnesses, are reviewable.” Krosnar v. Schmidt Krosnar McNaughton Garrett Co., 282 Pa.Super. 526, 534, 423 A.2d 370, 374 (1980); see also Peters v. Davis, 426 Pa. 231, 236, 231 A.2d 748 (1967).

We begin with an analysis of the meaning of the covenant in question. We must construe the meaning of the covenant to determine whether it was breached by appellees’ construction of Cindi Drive, for if it was not, there is obviously no reason for an order enforcing it.

Appellees argue that the trial court was correct in denying the injunction because the covenant in question does not specifically provide for the preservation of a cul-desac. In support of this proposition, appellees cite to a number of cases stating the general principle that a restrictive covenant must be specific if it is to be enforced. Appellees note that the trial court determined that the instant restrictive covenant “might be read to require the maintenance of the cul-de-sac, but that did not appear to be their overall or principal purpose” and urge us to conclude, therefore, that use of the lot to construct a road to another development of single family residential dwellings is a residential use consistent with the restrictions imposed by the covenants.

As we have noted, the instant covenant provided as follows:

(B) That lots Nos. 1 through 29, [designated as Lots 201 through 228 on the recorded West Gate I revised plan] both inclusive, in said Plan shall be known and designated as single family residential lots.

Although restrictive covenants are not favored, they are legally enforceable. Morean v. Duca, 287 Pa.Super. 472, 430 A.2d 988 (1981). Such covenants are strictly construed against the party seeking enforcement of the covenant. Id. In construing a restrictive covenant, we must ascertain the intentions of the parties by examining the language of the covenant in light of the subject matter thereof, the apparent purpose of the parties and the conditions surrounding execution of the covenant. Dreher Township Board v. Solitron Development Co., 333 Pa.Super. 33, 40, 481 A.2d 1207, 1211 (1984).

We, therefore, look first to the express words of the instant covenant, particularly the words “known” and “designated” in section (B) of the covenant stated above, to discern their meaning. Blacks Law Dictionary (5th ed. 1979) defines “known” as “familiar; perceived; recognized; understood; especially, when used absolutely, familiar to all; generally understood or perceived.” “Designate” is defined as “To indicate, select, appoint, nominate, or set apart for a purpose or duty, as to designate an officer for a command. To mark out and make known, to point out; to name; indicate.” As the words in the covenant are defined, then, we read them to mean that the lots in West Gate “are recognized and understood to be set apart as single family residential lots.” Provision A of the restrictive covenant provides that the covenants are to run with the land and bind all successors in interest. Our interpretation of these provisions leads us to agree with the chancellor’s initial conclusion that the appellees clearly breached the covenant when they built a road over a lot which was set aside for single family residential use. As the chancellor stated in his Adjudication:

... despite the fact that there is no specific mention in the restrictive covenants or in the deeds or anywhere else that the West Gate Plan would always be a development of homes along a one-street cul-de-sac, such specific reference is not required for enforcement. Everyone knew that the lots in the West Gate Plan were reserved for single-family residences only. Defendants had committed themselves to that and the construction of a road on one of the lots is an obvious violation of that negative easement____ The Chancellor accepts [appellants’] contention that the existence of the cul-de-sac was a material inducement to them in purchasing their homes in West Gate____

Having concluded that the restrictive covenant in this case was meant to limit the West Gate lots to single family residential use, which would not include the construction of a road over one of the lots, we next consider appellant’s allegations of error as to the trial court’s denial of injunctive relief.

The chancellor denied appellants’ request for an order requiring removal of the road on the ground that appellants had failed to prove any decrease in value of their properties or any increase in traffic as a result of the road being built. In fact, the chancellor found that appellants’ property had increased in value and that the existence of the road benefitted appellants by providing better access to their homes for emergency vehicles. Based on these findings, the trial court concluded that to order the enforcement of the covenant through removal of the road would not confer any significant benefit on appellants and, therefore, was not appropriate. We must determine whether this conclusion was an abuse of discretion.

Cases addressing the standard for granting injunctive relief to enforce a covenant restricting the use of land are myriad and, if correctly construed, consistent. In some such cases the chancellor is faced with a difficult problem because he or she must balance the rights of the beneficiary of the covenant, who has a legal right and a justifiable expectation that the covenant will be enforced, against the interests of others and the public in general in the free and unrestricted use of land. Thus, it has often been said that restrictive covenants are to be strictly construed and are not favored in the law:

... public policy dictates that land shall not be unnecessarily burdened with permanent or long-continued restrictions and____ equity will not retard improvements simply in order to sustain the literal or technical observance of a covenant which for one reason or another has become useless from the standpoint of any practical utility....

Price v. Anderson, 358 Pa. 209, 218, 56 A.2d 215 (1948) (citations omitted). See also Central Delaware County Authority v. Greyhound, 386 Pa.Super. 423, 563 A.2d 139 (1989); Covey v. Gross, 377 Pa.Super. 580, 547 A.2d 1214, 1215 (1988).

In this case, however, we need not look with any particular disfavor on the restrictive covenant that appellants seek to enforce. The concerns with enforcement of such covenants noted above have no applicability here. We have already indicated that we agree with the chancellor’s conclusion that this covenant, whether broadly or strictly construed, clearly prohibits use of any of the West Gate lots for building a road. Moreover, this is not a case where a burdensome covenant has, through the passage of time or a change of conditions in the neighborhood, lost any utility it once had. Here we deal with a restrictive covenant of very recent vintage and limited scope. Indeed, enforcement of the covenant will not result in any loss of use of the land, for the lot in question clearly can be used to build a dwelling. The only loss is to appellees’ commercial interest in using the lot as a road to service another of appellees’ housing developments.

Of greatest legal significance, however, is the fact that we are not dealing with a violation of a covenant that was either de minimus or unintentional. The violation was deliberate and flagrant. In fact, appellees violated the covenant after the chancellor had already determined that the building of the road would violate the covenant.

Given these crucial facts, we must ascertain what standards the law required the chancellor to apply in determining whether equitable enforcement of the restriction was warranted. First we must emphasize that the law draws a clear distinction between cases involving intentional violations of restrictive covenants and those involving mistaken or inadvertent violations. This principle has been enunciated in several Supreme Court opinions. In Moyerman v. Glanzberg, 391 Pa. 387, 138 A.2d 681 (1958), the court reviewed a chancellor’s refusal to order the removal of a building that encroached by several inches on an easement for a driveway held by appellants. The court found that the chancellor had correctly found that the encroachment did not materially affect appellants’ use of the easement. Given this finding, the court found that the crucial question was whether the violation was intentional. Id., 391 Pa. at 393, 138 A.2d at 685. The court explained the relevance of this question as follows:

We are in accord with appellants’ view that the crux of this case is the validity of the court’s determination in this respect [i.e. as to whether the violation was intentional].
In Kern v. Greensweig, 125 Pa. Superior Ct. 430, 436, 190 A. 182 [1937], the Court stated: “ ‘An injunction is not of right and the chancellor is not bound to make a decree which will do far more mischief and work greater injury than the loss he is asked to redress.’ ‘A suitor must not only appear in a court of equity with clean hands, but he must come with reasonable promptness, in good faith, and with a just and equitable demand____ If an injunction is prayed for where upon consideration of the whole case it ought not in good conscience to issue, a mere legal right in the plaintiff will not move the chancellor’: Power’s Appeal, 125 Pa. 175, 186, 17 A. 254 [1889].” See also: Baugh v. Bergdoll, 227 Pa. 420, 422, 76 A. 207 [1910]. Upon that doctrine the lower court placed reliance, holding that the granting of an injunction in this case which would compel appellee to tear down a portion of a completely constructed dwelling would be creative of more harm to the appellee than of benfit to appellants. With that determination we are in agreement.
However, despite that doctrine, the Court below would have had no choice but to grant the injunction if it had found that the appellee had deliberately and mlfully built upon the appellants’ property or if it believed that he had intentionally taken a chance. This rule was well stated in Ventresca v. Ventresca, 182 Pa.Superior Ct. 248, 253, 126 A.2d 515 [1956], wherein it was said: “Where the defendant’s act is tortious or in bad faith, or where he intentionally takes a chance, injunctive relief should be granted.” ----
In ... [this] situation, the chancellor did not err, ... in finding that the encroachment was the result of an unintentional mistake rather than a wilful and intentional trespass. In the absence of a wilful and intentional encroachment, since the inconvenience suffered by appellants is slight in comparison to the extreme hardship which the granting of an injunction would impose upon appellee, the action of the court below in dismissing the injunction request should be affirmed.

Id., 391 Pa. at 393-5, 138 A.2d at 684-5 (emphasis added).

In sum, Moyerman established that whereas in a case involving an unintentional violation of a restriction on land the chancellor must engage in a balancing of the harm that results from the violation against the harm that would result from issuing an injunction to remedy the violation, in a case involving an intentional violation application of a balancing test is improper.

Later cases, involving situations even more factually analogous to the one presented in the case before us, confirm this principle. In Peters v. Davis, 426 Pa. 231, 231 A.2d 748 (1967), the Supreme Court unanimously reversed the decision of the chancellor who had refused to grant an injunction ordering the removal of a dwelling intentionally constructed in violation of certain setback and sideline restrictions contained in the deed to the property. As in the instant case, the party who violated the restrictions had done so deliberately and had continued construction even after the beneficiaries of the restriction instituted an action in equity to prevent the violation. Id., 426 Pa. at 237, 231 A.2d at 751. The Peters court ordered that the dwelling be removed, finding that where the violation of the restriction was intentional, it did not matter that the value of it to the beneficiary was insignificant in comparison to the advantages associated with its violation since the beneficiary had a positive right to enforcement. Id., 426 Pa. at 237-8, 231 A.2d at 751-2. The court stated the relevant principles as follows:

“Where a building restriction is still of substantial value to a dominant lot equity should restrain its wilful violation. [citing an authority] To restrict the plaintiff to damages is not an adequate remedy____ Where a contract right has been invaded there is generally no question of the amount of damages but simply of the right. Clearly it would be ‘only by conjecture and not by any accurate standard’ that a jury could measure the damages caused to the plaintiff, [citing an authority].” Judge (later Chief Justice) KEPHART in Dodson v. Brown, 70 Pa.Superior Ct. 359 (1918) aptly said: “The aggrieved property owner’s right is absolute. However hard his acts might be regarded, he asks the court for the enforcement of a legal right of a positive character with respect to land which it is conceded was wrongfully taken from him. He is entitled to a decree. The rule in such cases is founded on sound reason. If damages may be substituted for the land, it will amount to an open invitation to those so inclined to follow a similar course and thus secure valuable property rights. The amount of land involved does not change the situation.” ____ If a property owner deliberately and intentionally violates a valid express restriction running with the land or intentionally “takes a chance”, the appropriate remedy is a mandatory injunction to eradicate the violation. See: Ventresca v. Ventresca, supra ....

Id., 426 Pa. at 238, 231 A.2d at 752. See also Loeb v. Watkins, 428 Pa. 480, 240 A.2d 513 (1968) (where restriction on number of buildings to be erected on certain land was intentionally violated and enforcement of covenant would result in benefit to beneficiary thereof, enforcement should be had); Hunsicker v. Katz, 310 Pa.Super. 213, 456 A.2d 576 (1983) (unlike intentional violation cases, where violation is unintentional, equitable enforcement will be refused where balancing of harms reveals that enforcement will cause more harm than good).

In the instant case, although the chancellor took note of certain benefits that might flow from allowing the violation to continue, his Adjudication stated that he did not base his denial of relief on these possible benefits. The chancellor also specifically did not consider the hardship to appellees that would result from an order requiring removal of the road since any such hardship was self-inflicted. Finally, the chancellor did not appear to consider the commercial benefit to appellees that would flow from allowing the road to remain. This suggests that the chancellor acted in a manner consistent with the foregoing authorities insofar as he refused to balance the relative harms and benefits flowing from enforcement as opposed to non-enforcement.

However, the chancellor did impose on appellants the burden of showing that some significant benefit would flow to them if enforcement were granted. Since he found that enforcement would result in no significant benefit to appellants, he refused to order enforcement. Thus, the question posed is whether appellants had to demonstrate that a significant benefit would flow from enforcement and, if so, what the law defines as a “significant benefit”. In other words, do Moyerman and Peters establish that all a beneficiary of a covenant needs to show to obtain injunctive enforcement is the existence of the covenant and an intentional violation thereof, or must the evidence also show that the enforcement of the covenant will result in a demonstrable benefit to the beneficiary? If the latter, what need be shown to support a finding that a significant benefit does exist and on which party does the burden of proof lie?

We conclude that even in a case involving an intentional violation of a covenant, enforcement may not be had unless it will result in a significant benefit to the beneficiary of the covenant. However, the benefit shown must only consist in the benefit that the covenant was originally intended to convey. The party opposing enforcement has the burden of showing that significant benefit no longer exists. Thus, enforcement will appropriately be denied if the party opposing enforcement can prove that, through a change of surrounding neighborhood or for other reasons, enforcement of the covenant will no longer result in the benefit it was originally intended to achieve. Further, as we have already indicated, the fact that the benefit to result from enforcement may be relatively small is irrelevant where the violation was intentional.

We have deduced these principles from a review of several pertinent cases. The first is Ventresca v. Ventresca, 182 Pa.Super. 248, 126 A.2d 515 (1956), which was heavily relied upon by the courts in both Moyerman and Peters in deciding that a balancing of harms test in a case involving an intentional violation is inappropriate. In Ventresca, the court analyzed whether enforcement of a deed restriction prohibiting erection of a building within five feet of the sidelines of the lot was appropriate. The defendant had wilfully violated the restriction by building within three feet four inches of the sideline.

The court ordered enforcement after finding no ambiguity in the restriction and no laches chargeable against plaintiff. The court was careful to note that the restriction was still of substantial value to plaintiff. The court held “[w]here a building restriction is still of substantial value to a dominant lot equity should restrain its wilful violation.” Id., 182 Pa.Superior Ct. at 252, 126 A.2d at 518. In so holding the court specifically distinguished cases where the court had refused enforcement. In those cases the Ven tresca court noted that either the restriction was not clearly intended to restrain the type of conduct engaged in by defendant or that enforcement of the restriction would have resulted in no substantial benefit to plaintiff because a change in the neighborhood surrounding the land subject to the restriction had rendered the restriction futile, i.e. enforcement of the restriction could no longer result in the benefit to plaintiff that the restriction was originally intended to convey. Id., 182 Pa.Superior Ct. at 251, 126 A.2d at 517 (citing, inter alia, Price v. Anderson, 358 Pa. 209, 56 A.2d 215 (1948)).

Cases decided more recently than Ventresca have reiterated the requirement of substantial benefit even where the violation was intentional. For example, in S.H. Deitch v. Bier, 460 Pa. 394, 333 A.2d 784 (1975), the Supreme Court reviewed a trial court order enjoining defendant from constructing a barber shop on property restricted to non-commercial uses. The violation of the restriction was intentional. The court reversed and remanded on the ground that the trial court had erred in refusing to consider whether the surrounding neighborhood had changed so that it was no longer residential and, therefore, enforcement of the restriction would not result in the benefit originally intended, i.e. preservation of a residential community. The court stated:

Injunctive relief against violation of the obligations arising out of a promise respecting the use of land cannot be secured if conditions have so changed since the making of the promise as to make it impossible longer to secure in a substantial degree the benefits intended to be secured by the performance of the promise.

Id., 460 Pa. 394 at 397, 333 A.2d at 785 (quoting Restatement (Property) § 64 (1944)). See also Schulman v. Serrill, 432 Pa. 206, 246 A.2d 643 (1968) (order refusing to declare building restriction null & void so as to allow defendant to use land in violation of restriction affirmed; enforcement will be refused only where there is “impossibility of accomplishment” of goal restriction originally intended to achieve and enforcement will result in “far greater hardship” than non-enforcement); Grasso v. Thimons, 384 Pa.Super. 593, 559 A.2d 925, 928 (1989) (“... equity will not enforce a restrictive covenant in the absence of any benefit to the party seeking enforcement of the covenant.”)

These cases demonstrate that the chancellor was correct in requiring that significant benefit accrue to appellants before enforcement can be ordered. However, they also demonstrate beyond cavil that substantial benefit is defined as being only the benefit that the restriction was originally intended to confer. See Ventresca, supra; Schulman, supra. Moreover, recent case law indicates that the burden of proving that enforcement of the restriction would be futile and not confer the benefit originally intended is on the party opposing enforcement. In Dreher Township Board v. Solitron Development Co., Inc., 333 Pa.Super. 33, 481 A.2d 1207 (1984), a panel of this court considered whether a restriction on the type of sewage disposal system to be built on certain property should be declared enforceable. The panel stated:

Cases are legion wherein courts have held that the character of a neighborhood has changed thereby negating the usefulness of the restrictive covenant.
Daniels v. Notor, 389 Pa. 510, 133 A.2d 520, 523 (1957) quoting fr. Henry v. Eves, 306 Pa. 250, 260, 159 A. 857, 860 [1932].
However, notwithstanding any change in character or use of land, “equity will restrain a violation of a building restriction if enforcement remains of substantial value to the dominant tenement.” Daniels v. Notor, supra, 133 A.2d [at] 525. See also Peters v. Davis, 426 Pa. 231, 281 A.2d 748 (1967), Rome v. Rehfuss, 391 Pa. 82, 187 A.2d 283 (1958). Here, the covenants were expressly created by the developer, clearly intended to apply to all subsequent purchasers of lots within the development, and clearly intended to prohibit any future buyer from installing an on-site sewage module.
In order to effect the discharge of the covenants, the burden of proof is on the owners of the servient tenements [those to which the restriction applies] to show that the original purpose and intent of the restrictions “have been materially altered or destroyed” by “changed conditions” and that “substantial benefit and advantage may not inure to the owners of the dominant tenement by the enforcement of the restrictions.” Rieck v. Virginia Manor Co., 251 Pa.Super. 59, 380 A.2d 375, 378 (1977).

Id., 333 Pa.Superior Ct. at 40-41, 481 A.2d 1211-12.

These authorities demonstrate that the chancellor in this case erred in imposing on appellants the burden of showing a significant benefit beyond the benefit that the restriction was originally intended to convey. The chancellor found that the covenant in question did prohibit the building of a road that would destroy the cul-de-sac feature of the development. Given this finding, with which we agree, all appellants needed to show was that they were the beneficiaries of the restriction and that the appellees had intentionally violated the restriction and destroyed the culde-sac feature. It was then the burden of appellees to show that enforcement of the restriction would not confer on appellants the benefit it was originally intended to confer. This appellees failed to do. They offered no proof that removal of the offending road would be futile because for some reason it would not result in restoration of the cul-desac feature. They offered no proof, for example, that the cul-de-sac feature had already been impaired in some other way. Appellees argued only that the loss of the cul-de-sac feature did not harm the general residential quality of the neighborhood or result in a loss of appellants’ property values. This was not enough.

Appellants had a right to the cul-de-sac feature which the chancellor found to be guaranteed by the restriction. This alone is a significant benefit. As the Supreme Court long ago stated, “[t]he value referred to in the authorities is the benefit to the owner of the dominant tenement [i.e. appellants] in the ‘physical use or enjoyment of the land possessed by him.’ ” Price v. Anderson, 358 Pa. 209, 219, 56 A.2d 215, 220 (1948) (quoting Restatement (Property) § 537). This was the benefit the restriction was intended to convey. As long as enforcement of the restriction to remove appellees’ intentional violation thereof would be effective in restoring this benefit, enforcement should have been ordered.

We are not convinced to the contrary by those authorities relied upon by the chancellor in support of his denial of relief. The chancellor relied upon Petry v. Tanglwood Lakes, Inc., 514 Pa. 51, 522 A.2d 1053 (1987) and Food Fair Stores, Inc. v. Kline, 396 Pa. 397, 152 A.2d 661 (1959). Neither case is inconsistent with the result we reach today.

In Petry, the Supreme Court was concerned with the propriety of equitable enforcement of an affirmative covenant requiring a developer of a vacation community to construct a lake near appellant’s home in the community. The court affirmed the trial court’s refusal to order enforcement, concluding that appellant had an adequate remedy at law in the form of a suit for money damages measured by the diminution in value of her home. Id. 514 Pa. at 57-61, 522 A.2d at 1056-57. The court found that appellant’s interest in having the lake built was outweighed by other factors militating against equitable enforcement, such as the fact that appellant was chargeable with having known that the lake construction might never come to fruition and that the evidence showed that ordering enforcement would adversely affect the interests of other lot owners in the community.

Petry is simply inapposite to the case before us. The instant case involves a negative covenant, a situation specifically distinguished by the Petry court. Moreover, there is no basis for finding that appellants had an adequate remedy at law.

We find Food Fair Stores, Inc. v. Kline equally inapposite. First, as the Food Fair court was careful to note, that case involved a de minimus violation of a commercial lease and was a dispute between two lessees who were business competitors. It was not a dispute between an owner of land and the conveyor thereof. Thus, as the court indicated, the interests involved were purely competitive interests of the lessees. The court denied enforcement of the precise terms of the lease because to do so would have required removal of a large structure and would have resulted in no perceptible advantage to the party seeking enforcement. Id. 396 Pa. at 399-400, 152 A.2d at 662-663. Most importantly, there is no indication in the Food Fair opinion that the violation was intentional. In contrast, here we are dealing with a dispute between the conveyor of land and a land owner and the violation of the restriction was intentional and not de minimus. Moreover, the interest of appellants is not competition, but rather their interest in having the kind of community that appellees promised. In fact, it is the appellees who have a purely commercial interest.

In sum, we find that the chancellor clearly abused his discretion in refusing to order removal of the road. Equity is not done where a developer is permitted to make promises concerning the private and exclusive nature of the development he/she is constructing in order to lure people to purchase in that development and is then allowed to commit intentional violations of those promises. It is no answer to appellants to say, as the chancellor here did, that the cul-de-sac feature of their neighborhood is not a significant benefit to them and that all they really need is a generally residential quality in their neighborhood. The cul-de-sac feature of this neighborhood was significant enough for appellees to use it to market the homes in the development and it is significant enough to be protected against intentional violations by appellees.

The order of the trial court is reversed. The case is remanded for entry of an order consistent with this opinion. Jurisdiction is relinquished.

      . Appellees' brief also includes a two paragraph argument purportedly aimed at convincing us that the covenants in question are not enforceable because they violate the Statute of Frauds. On closer inspection, however, this argument reveals itself as simply another statement of appellees’ position that the covenants do not prohibit the building of Cindi Drive. In other words, appellees appear to argue that because the covenants are not clear on this point, they are an insufficient written memorialization of any understanding between the parties as to the construction of a road over any of the lots and are, therefore, barred by the Statute of Frauds. Appellees provide no precedent in support of this argument and we are aware of none. In any event, we have found, as did the chancellor, that the covenants are a clear statement of the parties’ understanding and we find them a sufficient written memorialization of an agreement that no lot in West Gate would be used to build a road.

        . Enforcement may also be denied where, for example, the party seeking enforcement has himself violated a similar restriction or has acquiesced in similar violations. Restatement, Property § 560-61.

      . In Grasso v. Thimons, supra, a panel of this court addressed an apparently unintentional violation of a restriction limiting the use of certain property to residential uses. As we have indicated in text above, in finding that injunctive relief was appropriate the Grasso court reiterated that benefit to the party seeking enforcement was necessary. The court cited Loeb v. Watkins, 428 Pa. 480, 240 A.2d 513 (1968), an intentional violation case, in support of this proposition and appended a footnote indicating that the various members of the panel in Loeb had differed as to whether substantial benefit need be shown to secure equitable enforcement of a negative restriction on the use of land. In this footnote, the panel correctly indicated that a majority of the Loeb court would require a showing of benefit even in an intentional violation case. To this discussion we add only that Loeb, in which none of the competing opinions commanded a majority of the court, does not undermine our conclusions that in an intentional violation case the benefit from enforcement need only be that which the restriction was originally intended to convey, that enforcement will be denied only where that benefit can no longer be secured due to changed circumstances, and that to balance the relative harms is generally inappropriate in such a case. '


source: Caselaw Access Project

author: HESTER, Judge: WIEAND, Judge,

license: Public Domain

text:
    568 A.2d 682
    Walter M. MOHNEY, Jr., Appellant, v. George H. McCLURE and Charlotte McClure, his wife and Robert M. Hanak.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1989.
    Filed Jan. 10, 1990.

      John R. Ryan, Clearfield, for appellant.
    Matthew B. Taladay, Reynoldsville, for appellees.
    Before WIEAND, TAMILIA and HESTER, JJ.
   HESTER, Judge:

Walter Mohney, Jr. appeals from the March 1, 1989 order entered by the Court of Common Pleas of Jefferson County granting summary judgment to appellee, Robert M. Hanak, on the issue of appellee’s liability as a corporate officer for the nonpayment of wages. Appellant contends that appellee, as secretary and corporate counsel for McClure Contracts, Inc. (“McClure”), is considered an employer liable for non-payment of wages under the Wage Payment and Collection Law, (“WPCL”), 43 P.S. § 260.9a.

McClure declared bankruptcy on November 14,1986. Appellant brought suit against the officers for personal liability under the WPCL independent of the bankruptcy, alleging that he was owed back wages and that he had no other remedy due to the bankruptcy. Appellee counters that appellant has no remedy under the WPCL since appellant was an independent contractor and his claim for wages was in fact a claim for sales commissions. The trial court concluded that appellant was an employee working for wages but that appellee as a “non-functioning” corporate officer was not included among those liable under the WPCL. This appeal followed. We affirm.

Preliminarily, we note that our standard of review from an order granting summary judgment is well-established.

In determining whether the trial court erred in granting ... a motion for summary judgment, this court must determine whether the “pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” “However, summary judgment may only be entered in those cases which are clear and free from doubt.” We must determine whether there exists any genuine issue of triable fact. The moving party has the burden of proving that no genuine issue exists as to the material facts, and the record must be examined in the light most favorable to the non-moving party.
In making this determination, we must accept as true all properly pleaded facts, as well as the reasonable inferences which might be drawn therefrom. Furthermore, we shall not disturb the trial court’s decision granting summary judgment unless there has been an error of law, or a manifest abuse of discretion.

Overly v. Kass, 382 Pa.Super. 108, 110-11, 554 A.2d 970, 971-72 (1989) (citations omitted).

The record reveals that appellant commenced working for A.T. McClure Glass Company (a predecessor to McClure) in 1948 as a glass glazier. In 1968, he suffered a disabling injury to his right hand in a work-related accident. Thereafter, appellant became an estimator and salesman for A.T. McClure Glass Company and then McClure, until McClure declared bankruptcy. Appellant was paid a biweekly draw calculated by dividing the number of weeks in the current year by a sum of the net profit from completed jobs that had been paid in full by McClure’s clients the prior year. Appellant alleged in his complaint that he had not been compensated for jobs paid in full from the previous year or for jobs partially paid at the time McClure filed for bankruptcy but that were now accrued for bankruptcy purposes. In support of his claim that he was an employee, appellant alleged that McClure had withheld federal, state, and local income taxes from his paychecks, as well as FICA payments. McClure also carried appellant as a member of its hospitalization plan. Appellee’s position is that it was understood that appellant was an independent contractor and controlled his own work and that all these indicia of employment actually were done for appellant as an accommodation by appellee.

The trial court determined that appellant was an employee of McClure and was owed back wages, and this determination has not been challenged by appellee during this appeal. The trial court also determined that appellee was not liable under the WPCL as secretary of McClure, since he was a “non-functioning” officer of the corporation, and therefore, he was not included within the class of those intended to be held liable under the WPCL for nonpayment of wages. Appellant contends that this additional requirement is contrary to the intent of the legislature and the plain meaning of the statutory language.

Appellant argues that the parties liable under the WPCL include those within the definition of “employer,” as set forth in 43 P.S. § 260.2a. He further argues that the statute’s use of “any” should be construed to mean “all” or “every.” Belefski Estate, 413 Pa. 365, 196 A.2d 850 (1964). Finally, he contends that the words in the statute are clear and unambiguous and must be construed according to their plain meaning and common usage. 1 Pa.C.S. § 1903(a); Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986). Consequently, appellant asserts that the insertion of requirements not set forth in the statutory language contravene the clear intent of the legislature.

In support of this argument, appellant notes that we have imposed civil liability on corporate officers for unpaid wages under the WPCL without inquiry into their actual functions or responsibilities. In support, appellant relies upon Amalgamated Cotton Garment and Allied Industries Fund v. Dion, 341 Pa.Super. 12, 491 A.2d 123 (1985), in which a person functioning as a corporate officer and shareholder failed to have his corporation make contributions to a retirement trust fund, and we found him liable under the WPCL but specifically declined to address the question of whether liability was intended to apply only to the highest corporate officers. Subsequently, in Laborers Combined Funds of Western Pennsylvania v. Mattei, 359 Pa.Super. 399, 518 A.2d 1296 (1986), we similarly declined to require any showing of “scienter” by corporate officers, as required by case law interpreting the criminal portions the WPCL, before finding them civilly liable. Compare: Com monwealth v. Giugliano, 351 Pa.Super. 162, 505 A.2d 317 (1986) (criminal WPCL liability requires a showing that corporate officers exercised at least some functions of their office since we refuse to find criminal intent from merely holding an office title). Consequently, appellant contends that the trial court’s requirement that appellee must be a “functioning” officer in order to be civilly liable was error.

Appellee argues that holding any or all officers or agents employing a person liable could be so broad as to include any corporate officer, or agent, regardless of his level or function. Consequently, appellee continues, this interpretation is too broad and unreasonable to be in accord with the legislature’s actual intent. See 1 Pa.C.S. §§ 1921(c)(4-6), 1922(1), (legislature does not intend absurd results); Goodman v. Kennedy, 459 Pa. 313, 329 A.2d 224 (1974). We conclude that this argument has merit, and consequently, we examine pertinent cases to determine how Pennsylvania courts have interpreted the language of this statute.

In Laborers Combined Funds v. Mattei, supra, we stated:

Thus, we see no logic in imposing the brunt of this financial fiasco on those so attenuated from the core of the fault as to be absolved from any wrongdoing, i.e., the union members, and place the obligation on the shoulders of those who make the decisions as to the manner in which the Corporation is managed. The Legislature, in its enactment of the Wage Payment and Collection Law, has not indicated otherwise. See Ward v. Whalen, 18 Pa. D & C.3d 710, 712 (C.P. Allegheny County 1981), wherein it was written, with regard to personal liability of corporate officers for default under the Act,
The Legislature had some purpose for including an agent or officer of a corporation employing persons in the Commonwealth within the definition of employer, and the only apparent purpose was to subject these persons to liability in the event that a corporation or similar entity failed to make wage payments. Its reason for doing so is obvious. Decisions dealing with personnel matters and the expenditure of corporate funds are made by corporate officers and it is far more likely that the limited funds of an insolvent corporation will be used to pay wages and that a work force will be reduced while the corporation is still capable of meeting its obligations to its employees if personal liability is imposed on the persons who make these decisions.
Accord Carpenters Health and Welfare Fund of Philadelphia and Vicinity v. Ambrose, Inc., 727 F.2d 279, 282-83 (3rd Cir.1983); Amalgamated Cotton Garment v. J.B.C. Co. of Media, 608 F.Supp. 158, 168 (W.D.Pa.1984);

In re Johnston, 24 B.R. 685, 687 ([Bkrtcy.W.D.Pa.] 1982). Id., 359 Pa.Super. at 406, 518 A.2d at 1300 (emphasis added) (footnote omitted).

Instantly, viewing the uncontroverted evidence concerning appellee’s authority and responsibility in the company, we conclude that the trial court properly found that appellee was not involved in the policy-making decisions of the corporation. Appellee was the attorney for the corporation and received a small monthly retainer for the legal services performed. He was included in the corporation’s hospitalization plan, owned 50 of the 7,000 shares of issued stock, and took minutes at each meeting of the corporation. In addition, he had authorization to sign checks on the corporate checking account. Nevertheless, none of these indicate that he actively participated in decisions or gave advice regarding pay or compensation. Instead, they show that he merely carried out decisions made by others. Therefore, there is no basis for appellee’s liability, other than by virtue of holding office as corporate secretary.

We next address appellant’s argument that the reasoning in Mattei is controlling. The defendant in Mattei was treasurer and secretary of his corporation and one of two brothers who owned all of the corporate stock. He clearly was involved in policy-making as a treasurer, secretary and forty percent shareholder. Although liability in Mattei was not premised on fault, we find that it was premised on active involvement in decision making. The reasoning in Mattel is is not applicable to the instant case since appellee did not undertake to be responsible as a contracting party for the payment of wages in return for labor as a policy-making officer or as an interested owner of the business.

We prefer to adopt the rational of the U.S. District Court in Central Pennsylvania Teamsters Pension Fund v. Burten, 634 F.Supp. 128 (E.D.Pa.1986), which held that “[a]bsent some indication that [the defendant] exercised a policy-making function in the company, he is not among the class of persons who may be liable under the WPCL.” Id. at 131; see also Bowers v. Neti Technologies, Inc. 690 F.Supp. 349 (E.D.Pa.1988).

While we agree that “scienter” concerning nonpayment of wages is not required for civil liability, we hold that evidence of an active role in decision making is required. We thus do not agree with appellant that the legislature intended liability merely by virtue of holding corporate office. See Carpenters Health and Welfare Fund v. Ambrose, Inc., 727 F.2d 279 (3rd Cir.1983) (it is questionable whether the Pennsylvania Legislature in the WPCL intended to impose personal liability on corporate officers merely for implementing a policy at the command of superiors). We also agree with the trial court that appellant did not produce evidence that appellee actively was involved in corporate decision-making and therefore should not be held liable personally for unpaid wages.

Order affirmed.

WIEAND, J., dissents.

WIEAND, Judge,

dissenting:

I respectfully dissent. When the legislature, by statute, imposed personal liability on corporate officers for the wages of corporate employees, it intended, at the very least, to impose such liability upon the secretary of the corporation.

      . 43 P.S. § 260.9a, in pertinent part provides:

        (b) Actions by an employe, labor organization, or party to whom any type of wages is payable ... may be maintained in any court of competent jurisdiction [against his employer].

      . 43 P.S. § 260.2a, (definitions), states:

        "Employer", includes every person, firm, partnership, association, corporation, receiver, or other officer of a court of this Commonwealth and any agent or officer of any of the above classes employing any person in this Commonwealth. [Emphasis added.]

      . 43 P.S. § 260.11a, in pertinent part provides:
      (b) In addition to any other penalty or punishment otherwise pre-
      scribed by law, any employer who violates any provisions of this act shall be guilty of a summary offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars ($300), or by imprisonment up to 90 days, or by both, for each offense____
      (c) Where such employer is a corporation, the president, secretary, treasurer or officers exercising corresponding functions shall each be guilty of such summary offense. (Emphasis added.)


author: MONTEMURO, Judge:

text:
    568 A.2d 686
    COMMONWEALTH of Pennsylvania v. Christopher NOLEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 3, 1989.
    Decided Dec. 22, 1989.

      George Shultz, Asst. Public Defender, Harrisburg, for appellant.
    Julia A. Merl, Asst. Dist. Atty., Harrisburg, for Com.
    Before WIEAND, MONTEMURO and CERCONE, JJ.

      . 18 Pa.C.S.A. § 2501.

   MONTEMURO, Judge:

Appellant, Christopher Nolen, appeals from a judgment of sentence imposed following a jury verdict finding him guilty of second degree murder, criminal conspiracy and robbery. The trial court denied and dismissed appellant’s timely post-trial motions. On appeal, appellant challenges: (1) the admissibility of evidence of appellant’s involvement in two burglaries which were not the offenses charged in this case; (2) the trial court’s denial of appellant’s motion for a mistrial after the Commonwealth made reference to appellant’s silence during his first trial and preliminary hearing; (3) the trial court’s refusal to permit appellant to cross-examine a Commonwealth witness on whether the witness received favorable treatment in exchange for his testimony at trial; and (4) the trial court’s denial of appellant’s motion for a mistrial after the Commonwealth indirectly referred to appellant’s first trial during its opening statement. For the following reasons, we affirm.

Appellant’s convictions arose out of the fatal shooting of Carroll Ritchie during the robbery of Ritchie’s tavern in Londonderry Township, Pennsylvania. During the evening of November 21, 1981, two masked men armed with handguns entered Ritchie’s bar; one threatened, “Don’t move or I’ll shoot.” When Ritchie came out from behind the bar and ordered them to leave, each of the robbers fired his gun, then one fired a third shot which hit and killed Ritchie. The gunmen fled.

While investigating the incident, the police found one .38 caliber bullet and one .32 caliber bullet in the walls of the tavern; the third bullet, .38 caliber, was removed from Ritchie’s body.

The driver of the getaway car, David Crater, confessed to his role in the incident and revealed the identity of the two gunmen as Christopher Nolen, the appellant, and Dauntel Evans. During the trial, Crater testified to the following facts. At about 6:00 p.m. on November 21, 1981, Crater met up with appellant and Evans to carry out the robbery they had planned a few days earlier. When they arrived at Ritchie’s bar, Crater went in, checked the place out, and then returned to the car. Appellant and Evans concealed their faces with clothing and, armed with guns, entered Ritchie’s establishment. Crater waited in the car. Shortly thereafter he heard three gunshots. Appellant and Evans ran back to the car. After driving to their hometown, appellant gave his gun to Crater who later threw it into a nearby creek.

The police recovered the gun from the creek. A ballistics expert identified it as the weapon which had fired the .38 caliber bullet removed from Ritchie’s body.

The first issue before us in this appeal concerns evidence admitted by the trial court of appellant’s participation in two burglaries connected to the Ritchie robbery and shooting. Both appellant and Crater testified that on November 12, 1981, they and two other men burglarized the home of Warren Brubaker. The murder weapon retrieved from the creek after the Ritchie robbery was later identified as a handgun taken during the Brubaker burglary. Crater and appellant also testified that on November 19, 1981, Evans, Crater and appellant burglarized the home of Earl Herring. A handgun was taken during this burglary. An expert testified that the .32 caliber projectile recovered from the wall of Ritchie’s tavern and a .32 caliber cartridge found in the getaway car matched ammunition left behind in the Herring burglary. He also testified that these projectiles could have been used in the type of firearm stolen during the Herring burglary. Appellant argues that the trial court erred in admitting evidence of the Brubaker and Herring burglaries.

As a general rule, evidence of distinct crimes is inadmissible against a defendant who is being tried for another crime if it is admitted merely to show the defendant’s criminal disposition. Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 497 (1988); Commonwealth v. Banks, 513 Pa. 318, 349, 521 A.2d 1, 17 (1987), certiorari denied 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987). Evidence of other crimes may be admissible in special circumstances where the evidence is relevant for some other legitimate purpose and not merely to show the defendant’s bad character and propensity for committing criminal acts. Id., 513 Pa. at 349-50, 521 A.2d at 17. Under the “same transaction” exception, evidence of other crimes may be admissible where the evidence forms part of the chain or sequence of events which is part of the history of the case and it enhances the natural development of the facts. Commonwealth v. Lark, supra 518 Pa. at 303, 543 A.2d at 497; Commonwealth v. Brown, 462 Pa. 578, 591, 342 A.2d 84, 90 (1975); Commonwealth v. Murphy, 346 Pa.Super. 438, 443, 499 A.2d 1080, 1082 (1985).

The trial court held that evidence of the Brubaker and Herring burglaries falls within the “same transaction” exception. We agree. Appellant’s participation in the Brubakér burglary links him to the murder weapon, showing that he had the opportunity for access to, and possession of, the gun. This is a critical link in the history of the case connecting appellant with the Ritchie robbery and murder. Appellant’s participation in the Herring burglary, along with Evans and Crater, is evidence of other activity with the co-conspirators and thus is probative of whether or not a conspiracy existed among the three men. See Commonwealth v. Barnhart, 290 Pa.Super. 182, 186-87, 434 A.2d 191, 192 (1981) (evidence of prior crimes committed together with accomplices was admissible to explain the relationship between alleged co-conspirators); Commonwealth v. Soli, 273 Pa.Super. 158, 163, 417 A.2d 216, 220 (1979).

Once the court establishes that the “same transaction” exception applies, it must balance the prejudicial impact of the evidence against its probative value to determine admissibility. Commonwealth v. Murphy, supra 346 Pa. Super. at 444, 499 A.2d at 1083. On appeal, the trial court’s determination will not be reversed absent an abuse of discretion. Id. The trial court found that the evidence of the Herring and Brubaker burglaries was “extremely” probative, particularly because none of the eye witnesses to the shooting could identify the perpetrators, and the prosecution’s case rested primarily on the testimony of David Crater, a co-conspirator. The trial court minimized the prejudicial impact of the evidence by its cautionary instructions to the jury. N.T. November 17, 1986 at 499-500. See Banks, supra 513 Pa. at 351, 521 A.2d at 18; Murphy, supra 346 Pa.Super. at 446, 499 A.2d at 1084. We hold that the trial court did not err in admitting the evidence of appellant’s involvement in the prior burglaries. Appellant’s reliance on the line of cases concerning evidence of modus operandi is misplaced.

Appellant next claims that the trial court erred in denying his motion for a mistrial after the Commonwealth referred to appellant’s failure to testify during his first trial and preliminary hearing. A reference at trial to an accused’s post-arrest silence is a violation of his or her constitutional right against self-incrimination. Commonwealth v. Melvin, 378 Pa.Super. 59, 65, 548 A.2d 275, 277 (1988), appeal denied 522 Pa. 588, 561 A.2d 741 (1989); Commonwealth v. Mays, 361 Pa.Super. 554, 558, 523 A.2d 357, 359 (1987), allocatur denied 516 Pa. 613, 531 A.2d 780 (1987). “Prompt and adequate cautionary instructions by the trial judge can remove what might otherwise be reversible error.” Melvin, supra 378 Pa.Super. at 65, 548 A.2d at 277, quoting Commonwealth v. Mays, supra 361 Pa.Super. at 558, 523 A.2d at 359. Four factors are examined to determine whether curative instructions can cure the error and eliminate the need for a new trial: “1) the nature of the reference to the defendant’s silence; 2) how it was elicited; 3) whether the district attorney exploited it; and 4) the promptness and adequacy of the cautionary instruction.” Id. 378 Pa.Super. at 65-66, 548 A.2d at 278 (citations omitted).

While cross-examining appellant, the district attorney indirectly referred to appellant’s failure to testify at the prior proceedings. The questioning went as follows:

BY MR. KLEINFELTER:
Q. Christopher, you have been present throughout the course of this trial and listened to every witness who has testified, have you not?
A. Yes, I have.
Q. And you were present at another proceeding and listened to the testimony of every witness that testified, did you not?
A. Yes, I have.
Q. And you were present at a preliminary hearing and listened to witnesses from the Commonwealth testify and heard every one of them, didn’t you?
A. Yes, I have.
Q. Prior to your testimony here in this courtroom today, however you have not testified yourself, have you?

N.T. November 17, 1986 at 420.

The district attorney elicited the testimony concerning appellant’s previous silence to point out appellant’s advantage in having heard all of the Commonwealth witnesses’ testimony and appellant’s opportunity to conform his testimony to theirs. It was improper for the district attorney to question appellant on his previous failure to testify, and, thus, the questioning may have prejudiced appellant. The district attorney did not urge the jury to infer appellant’s guilt from his silence at the prior proceedings, and thus did not exploit appellant’s testimony.

The trial judge disallowed any further questioning on appellant’s lack of participation during the prior proceedings. Defense counsel indicated that he did not want any immediate curative instructions on appellant’s right not to testify because he did not want the point emphasized. N.T. November 17, 1986 at 421-22. At the close of the testimony, the judge instructed the jury that appellant had an absolute right not to testify. The trial court’s instructions to the jury cured any error due to the Commonwealth’s reference to appellant’s silence at the prior proceedings. We hold that the trial court did not err in denying appellant’s motion for a mistrial.

Appellant next asserts that the trial court erred in refusing to permit defense counsel to cross-examine Joey Boyer, a Commonwealth witness, concerning two unrelated charges which had been pending against Boyer at the time he agreed to testify, but which had been dismissed shortly before appellant’s trial. Although we find error in the trial court’s ruling, we find that the error was harmless.

Boyer’s trial testimony corroborated portions of Crater’s testimony. Boyer testified that he had been with appellant, Evans and Crater on the evening of the Ritchie incident while they were gathering guns and bullets, but he had gone home before the threesome drove to Ritchie’s bar.

It is well established that defense counsel may cross-examine a prosecution witness on possible favorable treatment received from the prosecution in exchange for the witness’ testimony. Commonwealth v. Evans, 511 Pa. 214, 224, 512 A.2d 626 (1986); Commonwealth v. Coades, 454 Pa. 448, 452, 311 A.2d 896 (1973). In Coades, supra, the Court held that a witness under an indictment stemming from the same crime which is the subject of the case in which he is testifying may be cross-examined about any favorable treatment which the witness may have already received from the prosecution in the witness’ own case. Coades, supra, 454 Pa. at 452-53, 311 A.2d at 898. In Evans, supra, the Court held that defense counsel could cross-examine the Commonwealth’s witness, about any expectations of leniency concerning other charges pending against the witness in the same jurisdiction at the time of trial. Evans, supra 511 Pa. at 226, 512 A.2d at 632. The charges which Boyer faced at the time he agreed to testify for the Commonwealth do not fall precisely within the ambits of either of these cases, since neither of the charges stemmed from the incident which is the subject of the case at bar, and, at the time of appellant’s trial, neither was a charge then pending against Boyer.

A reading of Coades and Evans together, however, requires that a defendant be permitted to cross-examine a prosecution witness as to favorable treatment which the witness may have already received from the prosecution on charges unrelated to the case at bar. In the Coades and Evans cases, the Court was concerned about potential bias on the part of the witness due to the witness’ hopes for leniency or due to favorable treatment already received by the witness. A similar potential for bias exists in the instant situation. When Boyer agreed to testify for the Commonwealth, he was in the Dauphin County Prison facing a theft charge in Dauphin County and facing extradition to Virginia for burglary and theft. Between this time and the start of the trial, the Virginia charges were dropped and the Dauphin County charge was reduced to criminal mischief. Boyer was given a $200 fine and released from prison. These facts raise the inference that when Boyer agreed to testify for the Commonwealth in appellant’s case, he had expectations of leniency concerning his own pending charges, and that when he actually did testify, he felt obliged to tailor his testimony to favor the prosecution. The trial court should have permitted appellant to expose this possible bias to the jury. Instead, the trial court allowed questioning of Boyer and the district attorney outside of the hearing of the jury, and, on the basis of that testimony, determined that Boyer’s previous charges were dropped and reduced without any input from the prosecution. Even in the absence of any agreement between the Commonwealth and Boyer, appellant deserved the opportunity to show that Boyer could have been influenced by feelings of gratitude toward the Commonwealth since the charges pending against Boyer had been dropped shortly after he agreed to testify. “Whatever tends to show the interest or feeling of a witness in a cause is competent by way of cross-examination.” Coades, supra 454 Pa. at 452, 311 A.2d at 898, quoting Commonwealth v. Farrell, 187 Pa. 408, 423, 41 A. 382, 384 (1898). The trial court erred in not allowing the cross-examination of Boyer concerning the charges. See Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Coades, supra 454 Pa. at 452, 311 A.2d at 898.

In deciding to prohibit cross-examination on this question, the trial court incorrectly focused on the fact that there were no pending criminal actions against Boyer at the time of trial. If this were the test, then the Commonwealth need only ensure that its witness receive the favorable treatment before the start of the trial to avoid cross-examination challenging the witness’ bias.

Even though the trial court erred, we are convinced that the error was harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 163 (1978). Boyer’s testimony was not critical to proving appellant’s guilt; his credibility was not a controlling issue at trial. Boyer’s testimony merely corroborated a portion of Crater’s testimony. Boyer testified that he was with the appellant, Crater and Evans during the early evening of November 21, 1981, the date of the incident, but he did not accompany them to Ritchie’s bar. Boyer’s testimony did not place appellant at the scene of the crime; it merely established that the three co-conspirators were together on the day of the robbery. His testimony was corroborative of the testimony provided by Robert Condran and Gentry Smith. N.T. November 17, 1986 at 303-04, 317. The Commonwealth’s case thus did not rest on Boyer’s testimony.

Further, Boyer’s testimony was consistent with his testimony at appellant’s first trial. When Boyer testified at the first trial, he was not facing any charges and there was no question of any possible deals between the Commonwealth and him.

On reviewing the whole record, we conclude that the error of denying defense counsel the opportunity to cross-examine Boyer on possible agreements between the Commonwealth and Boyer was harmless beyond a reasonable doubt.

The trial court also denied defense counsel’s motion for a mistrial following the Commonwealth’s reference to “a pri- or proceeding.” Appellant contends that this was reversible error. During its opening statement, the Commonwealth told the jury that it would become obvious during this trial that there was a prior proceeding in this case and that what happened there need not concern them here. N.T. Opening 13-13.

The opening statement serves to inform the jury how the case will develop, its background, and what will be attempted to be proven at trial. Commonwealth v. Nelson, 311 Pa.Super. 1, 12, 456 A.2d 1383, 1389 (1983). The trial court permitted the statement because it provided the jury with a factual setting for the case and it would aid the jury in understanding any references to the previous proceeding at trial. In fact, there were numerous references to the first trial made by the Commonwealth, defense counsel and the witnesses throughout the entire trial. In this case, it was not error for the court to permit the Commonwealth’s brief reference to the prior proceeding, since the statement fell within the permissible scope of an opening statement.

Even if it were error for the trial court to permit the Commonwealth’s statement, in order for a defendant to obtain judicial relief, the effect of the Commonwealth’s statement during its opening must so prejudice the jury against the accused as to prevent the finding of a true verdict. Commonwealth v. Galloway, 302 Pa.Super. 145, 160, 448 A.2d 568, 576 (1982). Here, the prejudicial impact of the statement was minimal because the Commonwealth did not state that the prior proceeding was a trial or that it resulted in a conviction of appellant. The prejudice in this case, if any, was not so great as to prevent a finding of a true verdict.

For these reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

WIEAND, J., concurs in the result.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 3701. In a first trial in this case, a jury found appellant guilty of second degree murder, robbery and criminal conspiracy. This Court affirmed the convictions. See Commonwealth v. Nolen, 330 Pa.Super. 366, 479 A.2d 595 (1984). The Pennsylvania Supreme Court reversed and remanded the case for a new trial. See Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986).

      . On appeal from his first trial, Appellant challenged the admissibility of the Brubaker and Herring burglaries. Commonwealth v. Nolen, 330 Pa.Super. 366, 376-77, 479 A.2d 595, 600-01 (1984). We held that the Brubaker burglary was admissible under the "identity" exception to the general rule barring admission of prior crimes. Id. We decided the issue, however, without the benefit of Commonwealth v. Perkins, 519 Pa. 149, 546 A.2d 42 (1988). In light of Perkins, the Brubaker burglary does not fit within the identity exception, since there is not a sufficient degree of similarity between the burglary and the Ritchie incident; the methodology is not "unique,” "singular," "highly characteristic,” etc. Id., 519 Pa. at 154-55, 546 A.2d at 44-45. As to the Herring burglary, we found this evidence admissible under the "same transaction" exception. Commonwealth v. Nolen, supra 330 Pa.Super. at 377, 479 A.2d at 600. The Pennsylvania Supreme Court reversed Nolen on other grounds, and thus did not reach the issue of admissibility of the burglaries. Commonwealth v. Evans, 511 Pa. 214, 226 n. 5, 512 A.2d 626, 632 n. 5 (1986).


author: CIRILLO, President Judge:

text:
    568 A.2d 693
    COMMONWEALTH of Pennsylvania v. Daniel CASSIDY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 17, 1989.
    Decided Dec. 28, 1989.

      F. Emmett Fitzpatrick, Philadelphia, for appellant.
    Ann C. Lebowitz, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY and HESTER, JJ.
   CIRILLO, President Judge:

Following a grand jury investigation, appellant Daniel Cassidy and six co-defendants were charged with several offenses involving alleged racketeering activity by members of the Philadelphia Police Department Narcotics Unit. Attorney F. Emmett Fitzpatrick represented Police Officer Leo Ryan in a federal court prosecution in 1987, and was retained by appellant Daniel Cassidy as well. Following his conviction, Ryan began to cooperate with the government and with the Commonwealth. As a result of a perceived conflict of interest, the Commonwealth filed a pre-trial motion to disqualify attorney Fitzpatrick as Cassidy’s trial counsel. The motions court of the Court, of Common Pleas of Philadelphia granted the Commonwealth’s motion. Cassidy appealed this pre-trial order. The Commonwealth then filed a motion to quash the appeal as interlocutory. A single motions judge of the Pennsylvania Superior Court denied the motion to quash. Before us now is the question of whether this pre-trial order is appealable.

A. Appealability of the Order

Section 742 of the Judicial Code confers exclusive appellate jurisdiction on this court of all appeals from final orders of the courts of common pleas. See 42 Pa.C.S. § 742 (1981). Applying the strict definition of the term “final order,” it is abundantly dear that the order disqualifying attorney Fitzpatrick is not a final order; it does not end the litigation nor dispose of the entire case. See Commonwealth v. Wise, 328 Pa.Super. 491, 493, 477 A.2d 552, 553 (1984) (final order is one which ends the litigation or disposes of the entire case). This determination, however, does not end our inquiry.

In Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), our supreme court recognized that the finality and appealability of an order cannot “necessarily be ascertained from the face of the decree alone, nor simply from the technical effect of the adjudication.” Id., 465 Pa. at 228, 348 A.2d at 735. Confronted with this conclusion, the supreme court adopted the approach utilized by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), for determining what constitutes a final order. This approach entails looking to the practical rather than the technical construction of an order. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978).

Pursuant to the Cohen approach, an order that appears interlocutory on its face is considered final and appealable if: (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Cohen, 337 U.S. at 546, 69 S.Ct. at 1225. This three-part test was used by our supreme court in Pugar v, Greco, supra, and more recently in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). In addition, it was applied by this court in Commonwealth v. Bonaparte, 366 Pa.Super. 182, 530 A.2d 1351 (1987).

We find that the order at issue in this case fulfills the requirements of the Cohen test. The first factor of the test is easily met; the order disqualifying Cassidy’s counsel is clearly separable from and collateral to the main cause of action. In addition, because the right to counsel of one’s choice, while not an absolute right, is one guarded by the sixth amendment of the United States Constitution, see Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (sixth amendment provides right to select counsel of one’s choice); Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959) (defendant has the constitutional right to choose at his or her own cost and expense any lawyer he or she desires); Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981) (criminal defendants have the constitutional right to choose at their own cost and expense any counsel they desire), there is no question that the right involved here is too important to be denied review. Thus, the second fact is also present.

The only remaining factor of the test to be met is the third one, namely, that the claimed right will be irreparably lost if review is postponed until final judgment is entered. In Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984), the United States Supreme Court held that a criminal defendant’s right to counsel is not irreparably lost if review of an order denying that right is postponed until the defendant is convicted and sentenced. As a state court, however, we are not bound to follow this holding. Our supreme court was free to ignore, reject, or adopt the Cohen test when it was created by the United States Supreme Court; we are equally free to reject the Supreme Court’s method of applying that test to a specific situation.

The criminal defendant’s right to counsel of choice, as expressed in the sixth amendment of the United States Constitution and in article 1, section 9, of the Pennsylvania Constitution, cannot be effectively protected in our Commonwealth if we postpone review of orders disqualifying a criminal defendant’s counsel of choice until the defendant has been found guilty and sentenced.

Criminal defendants are given numerous rights under our state constitution: the right to counsel; the right to know the charges filed against them; the right to face the witnesses testifying against them; the right to subpoena individuals to testify in their defense; the right to a speedy trial; the right against self-incrimination; and the right to trial by jury. See Pa. Const, art. 1, § 9 (Supp.1989). Of all of these rights, the right to counsel is arguably the most important. It is the key which opens the door to all of a defendant’s other rights. See Genego, Prosecutorial Control Over a Defendant’s Choice of Counsel, 27 Santa Clara L.Rev. 17, 26 (1987) (while other rights are integral to the proper functioning of the adversary process, only the right to counsel enables defendants to assert their other rights). The right to counsel also provides the defendant with the means to develop and present his or her defense. A defendant may have exculpatory information, but, without any knowledge of the law or the skill to present that evidence to the jury, the defendant may not go free. With the aid of one trained in the law, however, the defendant has the means to utilize this information in the light most advantageous to his or her defense. As the United States Supreme Court cogently stated in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932):

Even the intelligent and educated layman has small and sometimes no skill in the science of law ... He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he may be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

Id. at 69, 53 S.Ct. at 64.

The extent to which the right to counsel benefits a defendant, however, is greatly dependent upon the skill and ability of the particular counsel retained by the defendant. Certainly, none of us would disagree that all attorneys do not have the same ability to protect a defendant’s rights, or to develop and present a defense. See United States v. Laura, 607 F.2d 52, 56 (3d Cir.1979) (“We would reject reality if we were to suggest that all lawyers are a homogeneous group.”). Some attorneys are more intelligent than others; some have greater legal experience than others. Some attorneys exude more charisma before a jury than others.

The selection of an attorney is one of the most important decisions, if not the most important decision, made by a defendant in shaping a defense and in attempting to secure his or her release. Id. at 55. Thus, in our judgment a criminal defendant’s right to select counsel of his or her choice cannot be effectively protected if we delay review of orders denying that right until final judgment. By forcing a defendant to proceed to trial without counsel of choice, we are forcing that defendant to reveal his or her defense, as well as the testimony of witnesses, to the Commonwealth. Consequently, even if the defendant is awarded a new trial due to the improper disqualification of his or her attorney, the defendant has already been permanently prejudiced.

Furthermore, while a defendant may be required to bear the cost of a defense in our system of justice, it is fundamentally unfair to force a defendant to proceed to trial without counsel of choice and expend countless dollars in counsel fees, only to be forced to appeal to secure the right to be represented by the attorney initially retained. If awarded a new trial on appeal, the defendant may no longer possess sufficient funds to finance the representation originally desired. See Comment, Immediate Appealability of Orders Disqualifying a Criminal Defendant’s Counsel, Univ.Ill.L.Rev. 135, 150 (1984) (hereinafter “Comment”) (even if a pretrial order disqualifying defense counsel is overturned on appeal, the defendant’s financial situation may eliminate the possibility that his or her originally chosen counsel will represent the defendant in the new trial). In this situation, a defendant has been effectively denied the right to counsel of choice guaranteed by our state constitution.

Moreover, we cannot convincingly protect a defendant’s right to counsel of choice when we force a defendant to bear the anxiety of trial and the humiliation of conviction before appealing the question of his attorney’s disqualification. See Comment, supra at 149 (lack of effective review on appeal becomes apparent if right to counsel of choice is seen as the right to be free from an unfair trial without the services of a chosen lawyer and without the opportunity to test the legality of the disqualification order). The right to counsel of choice is the right to have chosen counsel through the adversarial process to avoid conviction in the first instance. As the Sixth Circuit Court of Appeals stated in United States v. Phillips, 699 F.2d 798 (1983):

To require a defendant in a criminal case to stand trial and risk conviction while deprived of the services of his chosen counsel without an opportunity to test the legality of the order of disqualification is fundamentally unfair____ From the time of disqualification the defendant’s case is affected by the loss of an attorney in whom he has confidence. Even a most competent counsel who enters the picture following a disqualification of the attorney first selected by the defendant labors under severe handicaps. A defendant erroneously deprived of the fundamental constitutional right to counsel of his choice should not be required to endure the rigors of trial and obloquy of conviction before establishing that error has been committed.

Id. at 802.

For these reasons, we hold that the right to counsel of choice cannot be effectively protected in this Commonwealth if review of pretrial orders disqualifying defense counsel is postponed until final judgment. We find therefore that all three factors of the Cohen test have been met and the order disqualifying Mr. Fitzpatrick as Daniel Cassidy’s counsel is appealable.

B. Merits of the Appeal

We turn now to the merits of this appeal, namely, did the motions court err in entering the order disqualifying Cassidy’s chosen counsel. In addressing this issue, we find it necessary to reiterate our previous statement and the well established principle that the right to counsel of choice, while not absolute, is guarded by the sixth amendment of the United States Constitution. Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); United States v. Cunningham, 672 F.2d 1064 (2d Cir.1982); United States v. Laura, 607 F.2d 52 (3d Cir.1979).

The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” This constitutional guarantee generally ensures that a criminal defendant may be represented by any counsel who will agree to take his case. Although “[a] defendant’s right to counsel of his choice is not an absolute one,” United States v. Ostrer, 597 F.2d 337, 341 (2d Cir.1979), we have consistently recognized that the right of a defendant who retains counsel to be represented by that counsel is “ ‘a right of constitutional dimension. ’ ” United States v. Wisniewski, 478 F.2d 274, 285 (2d Cir.1973), quoting United States v. Sheiner, 410 F.2d 337, 342 (2d Cir.), cert. denied, 396 U.S. 825, 90 S.Ct. 68, 24 L.Ed.2d 76 (1969) (emphasis added).

672 F.2d at 1070.

When a defendant’s selection of counsel, under the particular facts and circumstances of a case, places the fairness and integrity of the defendant’s trial in jeopardy, the defendant’s right to counsel of choice may be justifiably denied. Wheat, 486 U.S. at 158, 108 S.Ct. at 1696 (Marshall, J., dissenting). However, a presumption must first be recognized in favor of the defendant’s counsel of choice; to overcome that presumption, there must be a demonstration of an actual conflict or a showing of a serious potential for conflict. Id. at 167, 108 S.Ct. at 1701 (emphasis added). We find that the present state of the record shows neither an actual conflict, nor a serious potential for conflict. The right to counsel of choice “should not be interfered with in cases in where the potential conflicts of interest are highly speculative____” United States v. Flanagan, 679 F.2d 1072, 1076 (3d Cir.1983), rev’d on different grounds, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). See also Rules of Professional Conduct, Comment to Rule 1.7 (“Where a conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment.”)

Thus, we conclude that the motions court failed to afford the defendant the presumption in favor of representation by Mr. Fitzpatrick, counsel of choice. In the Commonwealth’s Petition to Disqualify Counsel, it is alleged that Mr. Fitzpatrick represented former police officer Leo Ryan in a federal prosecution in 1987. Following Ryan’s conviction, he began to cooperate with the federal government and the Commonwealth. The Commonwealth alleges that Leo Ryan “will testify at Cassidy’s trial and his testimony will relate to his personal observations of Cassidy as well as[ ] conversations he had with Cassidy [and that] Mr. Fitzpatrick can not effectly [sic] cross examine Mr. Ryan without revealing confidences he learned by representing Mr. Ryan or at a minimum, appearing to do so.”

This information, without more, does not demonstrate an actual conflict and, in our opinion, does not present a serious potential for conflict. Rule 1.7(b) of the Rules of Professional Conduct provides:

Conflict of Interest: General Rule
$ * * $ * *
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after full disclosure and consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Rule 1.7, Rules of Professional Conduct (emphasis added). Rule 1.9 provides as follows:

Conflict of Interest: Former Client A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after a full disclosure of the circumstances and consultation; or
(b) use the information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

Rule 1.9, Rules of Professional Conduct (emphasis added).

The Commonwealth has not shown that Mr. Fitzpatrick’s representation of Cassidy may be “materially limited” by his responsibilities to Ryan or to himself. See Rule 1.7. In addition, the Commonwealth has not shown that Cassidy’s interests are “materially adverse” to the interests of Ryan. See Rule 1.9. Our review of the record indicates that, in addition to denying the defendant the presumption of representation by counsel of choice, the Commonwealth failed to present any concrete evidence which would overcome this presumption. While Mr. Fitzpatrick did previously act as Leo Ryan’s counsel, there has been no showing that he was made privy to any information that is not of public record or that he could utilize to impeach Ryan. It is not certain that Ryan will testify for the Commonwealth. If he does, it is up to Leo Ryan to raise the attorney-client privilege. “The attorney-client privilege is that of the client, and not of the lawyer.” See Rules of Professional Conduct, Scope. In our opinion, this disqualification motion is premature; the Commonwealth is tilting at windmills when there are no dragons on the horizon.

Furthermore, if the Commonwealth is concerned that Mr. Fitzpatrick, as a result of his representation of Leo Ryan, became aware of information which could be favorable to the accused, of which the Commonwealth is already aware, the Commonwealth is constitutionally required to disclose this information. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see also Pa.R.Crim.P. 305. Finally, we find the Commonwealth’s focus on the issue of a conflict of interest inappropriate. We perceive the issue to be that of Mr. Fitzpatrick’s ethical obligation to hold inviolate the confidences of his former client, Leo Ryan, as a result of his representation of Ryan. See Rules of Professional Conduct, Rule 1.6 and Comment. At this point we must assume that Mr. Fitzpatrick will choose to retain any confidential information he may have regarding his former client, rather than risk disciplinary sanctions. In doing so, we avoid any speculation into potential conflicts.

Consequently, at this time, we find that there is no basis to support a conclusion that Mr. Fitzpatrick’s representation of Daniel Cassidy presents an actual conflict of interest or even a serious potential for conflict. Under these circumstances, protecting the defendant’s right to counsel must be our paramount concern. Accord United States v. Cunningham, 672 F.2d 1064 (1982) (defendant’s right to counsel of choice outweighs government interest in disqualifying his attorney; witness’s interests can be adequately protected where defendant is willing to have counsel’s cross-examination limited to matters of public record). We conclude, therefore, that the motions court erred in granting the Commonwealth’s motion to disqualify Mr. Cassidy’s counsel.

Order reversed; case remanded for trial. Jurisdiction relinquished.

      . A nationwide survey of the members of the National Association of Criminal Defense Lawyers revealed a dramatic increase in recent years of the number of prosecutorial attempts to have defense counsel disqualified. Genego, The New Adversary, 54 Brooklyn L.Rev. 781, 804-10 (1988). See abo Lowenthal, Successive Representation by Criminal Lawyers, 93 Yale LJ. 1, 53-61 (1983) (survey results indicate marked increase in number of attempts by prosecution to have defense counsel disqualified). Two commentators suggest that the government’s primary motive in bringing disqualification motions is "to disqualify the most competent lawyers and firms.” Margolin & Coliver, Pretrial Dbqualification of Criminal Defense Counsel, 20 Am. Crim.L.Rev. 227, 229 (1982). This view, they state, "is bolstered by the government practice of making selective disqualification motions against some of the defense counsel in a given case, and not other, generally less well-known attorneys, engaged in substantially the same potential conflicts." Id. See also Genego, The New Adversary, 54 Brooklyn L.Rev. 781, 814 (1988) (attorneys who are more experienced and earn the highest fees are the most likely to be subject to prosecutorial practices such as IRS summonses, disqualification motions, subpoenas for client-related information, and attempts to forfeit fees which they were paid for legal representation).

      . This was also the view of the majority of the federal courts of appeal prior to the Supreme Court’s pronouncement in Flanagan. See United States v. Phillips, 699 F.2d 798, 801-02 (6th Cir.1983) (despite policy that piecemeal appeals are especially disfavored in criminal cases, order disqualifying defendant’s counsel of choice is immediately appealable order under Cohen test); United States v. Agosto, 675 F.2d 965, 968 n. 1 (8th Cir.1982), cert. den. after remand and affirmance sub nom. Gustafson v. United States, 459 U.S. 834, 103 S.Ct. 77, 74 L.Ed.2d 74 (1982) (order disqualifying defense counsel is final order under collateral order doctrine); United States v. Curio, 694 F.2d 14, 19-20 (2d Cir.1982) (orders disqualifying defense counsel immediately appealable under collateral order doctrine); United States v. Flanagan, 679 F.2d 1072, 1073 n. 1 (3d Cir.1982), rev’d, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (order disqualifying counsel is collateral order and thus immediately appealable); United States v. Garcia, 517 F.2d 272, 275 (5th Cir.1975) (order disqualifying defense counsel is appealable under principles enunciated in Cohen). See also United States v. Hobson, 672 F.2d 825, 826 (11th Cir.1982) (stating in conclusory language that order disqualifying defense counsel is a final order); United States v. Smith, 653 F.2d 126 (4th Cir.1981) (entertaining appeal of pretrial disqualification order without discussion of appealability question).

      . In Flanagan, the Supreme Court placed great emphasis on the need to prevent delay in the criminal justice system. The court reasoned that a "delayed trial is a certain result of interlocutory appellate review" of pretrial disqualification orders. Flanagan, 465 U.S. at 298, 104 S.Ct. at 1073. Rebutting this conclusion, one commentator states:
      [T]he court must give a defendant in a criminal case adequate time to find a new attorney, and the sixth amendment requires that the court grant new counsel sufficient time to advise the client and to become acquainted with the facts and law of the case. During this delay, a court can hear an appeal of the disqualification order without unduly disrupting the litigation.

      Comment, Immediate Appealability of Orders Disqualifying a Criminal Defendant’s Counsel, Univ.Ill.L.Rev. 135, 148 (1984) (footnotes omitted) (emphasis added).

      . Without affording a defendant the benefit of this presumption, we too easily set the stage for disqualification of the most reputable members of the Pennsylvania Bar; bringing a disqualification motion against the most competent lawyers and firms is certainly not a novel idea. "[T]he purpose of the Rules [of Professional Conduct] can be subverted when they are invoked by opposing parties as procedural weapons.” Scope, Rules of Professional Conduct.