text:
    505 A.2d 255
    COMMONWEALTH of Pennsylvania v. Aaron DUNLAP, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Dec. 20, 1985.
    Reargument Denied March 3, 1986.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BROSKY, WATKINS and HOFFMAN, JJ.
   BROSKY, Judge:

This appeal is from the judgment of sentence imposed after appellant was found guilty in a non-jury trial of receiving stolen property and unauthorized use of automobiles and other vehicles.

Appellant contends that the evidence was insufficient to support his convictions on these crimes and that the crimes should have been merged for sentencing purposes. We agree with appellant’s first contention and, accordingly, reverse the judgment of sentence and discharge appellant.

“The test of sufficiency of the evidence — irrespective of whether it is direct or circumstantial, or both — is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the [trier of fact] could properly have based [the] verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.’ ” In reviewing the evidence, we must consider it in the light most favorable to the Commonwealth, which won the verdict in the trial court.

Commonwealth v. Hogan, 321 Pa.Super. 309, 312, 468 A.2d 493, 495 (1983) (citations omitted).

In the instant case, the Commonwealth presented two witnesses at trial. The first witness, Cleon Scoggins, testified as follows. On July 27, 1984, he observed appellant driving an automobile in the 4500 block of Garnet Street in Philadelphia. Appellant parked the automobile and walked away from the area. Scoggins recognized the automobile as belonging to the complainant, Louise Johnson, because Scoggins had previously done repair work on it. Scoggins thereafter located Mrs. Johnson and returned with her to the parked automobile just as uniformed police officers in a marked car were arriving at the scene. Mrs. Johnson then confirmed that she did own the car. Appellant returned to the automobile within ten or fifteen minutes of his initial departure and asked one of the officers “what was the matter.” The officer then asked appellant whether appellant had been driving the car and when appellant answered in the affirmative, he was arrested.

The other witness presented by the Commonwealth, Louise Johnson, testified to the following. On July 18, 1984, her 1974 Camaro was missing from 29th and Chestnut Streets in Philadelphia. She next saw her car nine days later at appellant’s arrest. At the time of the arrest Johnson saw police confiscate her car keys. These keys had also been missing since July 18. -After inspecting her automobile, Johnson noticed that the left window was broken, the ceiling was “hanging down”, the exhaust pipe was bent and had a hole in it, and the dashboard and steering column were undamaged.

Appellant presented no testimony, and the court, after hearing the testimony of these witnesses found him guilty of receiving stolen property and unauthorized use of an automobile. Post-verdict motions were timely filed and were heard and denied on December 10, 1984, at which time appellant was sentenced to two concurrent terms of time-in to 28 months imprisonment. This appeal timely followed.

Appellant argues that the evidence was insufficient to convict him of either receiving stolen property or unauthorized use of an automobile because the mens rea for neither crime was established by the Commonwealth. We agree.

In order to establish the mens rea element of the crime of receiving stolen property, the Commonwealth must prove that the accused possessed property with “guilty knowledge”, i.e., knowing that it has been stolen, or believing that it has probably been stolen.” 18 Pa.C.S. § 3925(a). In order to establish the mens rea element of the crimes of unauthorized use of automobiles, the Commonwealth must prove that the accused was at least reckless with respect to the owner’s lack of consent to the accused’s operation of the vehicle. Hogan, supra.

The necessary knowledge or recklessness may be demonstrated by circumstantial evidence, and an inference of guilty knowledge may be drawn from unexplained possession of recently stolen goods. Id. Whether possession is recent and whether it is unexplained are normally questions of fact for the trier of fact. Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976).

[O]ther circumstances involved in any given case may also be considered by the trier of fact in determining if the inference [of guilty knowledge] may properly be drawn from the unexplained possession. Amongst such circumstances are the accused’s conduct at arrest and his conduct while in possession of the goods, as well as, the accused’s relationship, if any, with the victim of the theft. Once the inference is properly drawn by the trier of fact and pursuant to the understanding that it cannot be drawn unless he is convinced that the unexplained possession is so recent as to convince him of the inferred fact beyond a reasonable doubt and his conviction of the same is not weakened below this standard by other circumstances, an appellate court may not reverse unless, after considering the evidence, it believes a juror or judge, acting in a reasonable and rational manner, could not have been convinced beyond a reasonable doubt.

Id., 468 Pa. at 368, 362 A.2d 249.

In the instant case, we have no difficulty in determining that the trier of fact reasonably could have found that appellant’s possession of the car was both recent and unexplained. We do, however, have difficulty in believing that a trier of fact, acting in a reasonable and rational manner, could infer that the fact of “guilty knowledge” follows beyond a reasonable doubt from such unexplained possession when the other circumstances involved in this case are considered.

These circumstances include the fact that the car had no damage to the dashboard or steering column which would indicate that it had been started or operated unlawfully. Although the automobile did have a broken window, a broken exhaust pipe and a “hanging” ceiling, such damage is not inconsistent with a car that is 10 years old. Thus, the physical condition of the car itself would not reasonably put an operator on notice that it probably had been stolen.

The most important circumstance present in this case, however, is the fact that after parking the car and remaining away from it for 10 or 15 minutes, appellant voluntarily returned to it despite the fact that it was surrounded by both civilians and uniformed police officers, asked the police what was the matter, and freely admitted to having driven the automobile. We believe that such behavior is inconsistent with the mens rea of “guilty knowledge.”

In Commonwealth v. Stover, 291 Pa.Super. 509, 436 A.2d 232 (1981), an automobile that had been stolen 37 days earlier was parked in front of the defendant’s auto repair shop. A police officer ordered him to move the automobile because it was obstructing traffic. An argument ensued during which the defendant referred to the car as “my vehicle”. The officer arrested him for disorderly conduct at which time appellant volunteered to drive the car to the police station. At trial, he did not explain his possession of the car. This Court found that the evidence would not support an inference that the defendant possessed the car with the required guilty knowledge.

In Commonwealth v. Williams, the accused, who was driving a car stolen 17 days earlier, pulled alongside a parked police vehicle, asked for traffic directions, and departed after receiving the directions. He subsequently parked the car and was arrested while walking about two blocks away from where he had parked. This Court stated that:

In the present case, apart from the fact of possession of the stolen vehicle, which has generally been held insufficient in itself to demonstrate guilty knowledge, the circumstantial evidence is insufficient to support a reasonable inference of guilty knowledge required for a conviction. On the contrary, assuming appellant was the driver of the stolen car, he stopped and asked the police for directions. Normally, a person in possession of a stolen vehicle does not stop to ask the police for directions.

Similarly, a person in possession of a stolen vehicle does not normally return to the vehicle when it is surrounded by police and civilians, ask what is the matter, and admit to having driven the car. We conclude that in the instant case the circumstances were such that a reasonable trier of fact could not have inferred beyond a reasonable doubt from appellant’s unexplained possession of the recently stolen automobile that he knew that it had been stolen or believed that it probably had been stolen. Thus, we find that the evidence was insufficient to convict appellant of the crime of receiving stolen property.

However, we must still determine whether the evidence was sufficient to support appellant’s conviction of unauthorized use of an automobile. While it is true that if unexplained possession of a recently stolen car supports an inference of guilty knowledge of its theft it will support with even greater strength an inference of recklessness with respect to the owner’s lack of consent to operate the automobile, see Hogan, supra, the converse of this statement is not necessarily true. In other words, there could conceivably be a factual setting in which the circumstances surrounding the unexplained possession of a recently stolen car would permit an inference of recklessness as to the owner’s lack of consent to operate the automobile, but not permit an inference of guilty knowledge as to its theft.

Here, however, we cannot even find that the evidence was sufficient for the trier of fact to draw the inference beyond a reasonable doubt that appellant was reckless with respect to lack of the owner’s consent to operate the automobile. The Commonwealth produced no evidence of additional circumstances such as traffic violations and an inability to produce a driver’s license or registration card which could possibly support even this inference. See Hogan, supra (evidence sufficient to infer at least recklessness where appellant violated traffic signal and was unable to produce license or owner’s card); Commonwealth v. Utter, 279 Pa.Super. 557, 421 A.2d 339 (1980) (evidence sufficient to infer recklessness where appellant was unable to produce license or registration). Absent evidence of any such additional circumstances, we must conclude that the evidence was also insufficient to convict appellant of the crime of unauthorized use of automobile and other vehicles.

Judgment of sentence reversed and appellant discharged.

      . Hogan, which involved only the crime of unauthorized use of automobiles, expressly overruled those earlier cases which had required proof of “guilty knowledge" for that crime. See, e.g., Commonwealth v. Randall, 287 Pa.Super. 479, 430 A.2d 991 (1981); Commonwealth v. Williams, 284 Pa.Super. 244, 425 A.2d 795 (1981). Hogan’s analysis, however, of whether the inference of "guilty knowledge” could be drawn in that case was based on the principle that if the unexplained possession of recently stolen property will support an inference of guilty knowledge of its theft, it will support with even greater strength an inference of recklessness with respect to the owner’s lack of consent to operate a recently stolen automobile. We note that in the instant case, the court below mistakenly applied the more stringent mens rea requirement of “guilty knowledge” rather than the less stringent requirement of “recklessness” as to the offense of unauthorized use of automobiles.

      . Given our holding, we need not reach appellant's claim that the crimes of receiving stolen property and unauthorized use of automobiles should have been merged for sentencing purposes. We note, however, that our Court's decisions on this issue have not been consistent. Compare Commonwealth v. Robinson, 317 Pa.Super. 135, 463 A.2d 1121 (1983) (no merger) with Commonwealth v. Wilcox, 310 Pa.Super. 331, 456 A.2d 637 (1983) (merger). See also, Common

        wealth v. Pemberth, 339 Pa.Super. 428, 489 A.2d 235 (1985). We also note that the issue is before an en banc panel of this Court in Commonwealth v. Campbell, 1614 Philadelphia, 1982.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    505 A.2d 259
    Elton C. TURNER v. LETTERKENNY FEDERAL CREDIT UNION, the Board of Directors of Letterkenny Federal Credit and William T. Grier, Charles G. Hoover, Gaylord L. Peters, Adrian E. Reeder, Doris E. Timmons, James H. Miller, Stanley E. Sprankle, Bruce C. Hershey and Richard E. Baumunk, of the Board of Directors of Letterkenny Federal Credit Union, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1985.
    Filed Dec. 27, 1985.
    Reargument Denied March 10, 1986.

      George F. Douglas, Jr., Carlisle, for appellants.
    Frederic G. Antoun, Jr., Assistant District Attorney, Chambersburg, for appellee.
    Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This an appeal from a judgment entered in the Court of Common Pleas of Franklin County. Appellant asserts that the trial court erred in denying appellant’s motions for judgment n.o.v. and a new trial. A jury rendered a verdict in appellees’ favor, finding that appellant’s credit union had wrongfully discharged him. We reverse.

Appellee was discharged from the credit union in January of 1982 after a six-year employment tenure. During most of appellee’s term of employment, he was given generally favorable evaluations for his performance as a manager. However, beginning in 1978, appellee’s evaluation reports in the categories of supervision and personnel management ranged from “below desired levels” to very disappointing. One particular problem was appellee’s relationship with those employees under his supervision. The board of directors discussed this problem with appellee on one occasion, yet it remained a constant issue with members of the board. Eventually the board called a special meeting at which time the directors voted unanimously to dismiss appellee.

On January 4, 1982, after appellee had returned from vacation and less than one month after the special board meeting, the board president gave appellee notice in the form of a letter from the board that his services were no longer needed by the credit union and that appellee’s employment was to be terminated effective immediately with appellee receiving ninety days termination pay. No reason was given for the termination.

Historically, Pennsylvania has recognized an employer’s unfettered right to discharge an at-will employee for any or no reason in the absence of a contractual or statutory prohibition. Henry v. Pittsburgh and Lake Erie Railroad Company, 139 Pa. 289, 21 A. 157 (1891). That right has been tempered with the emergence of the common law doctrine of wrongful dismissal whereby an employee may premise a cause of action on either tort or contract principles. H. Perritt, Employee Dismissal Law and Practice (1984). Appellee in the instant case only raised the assertion at trial that he was discharged in an abusive manner; he was clearly an at-will employee and there was no contention that a contract, implied or actual, existed between appellee and the credit union. Cf., Richardson v. Charles Cole Memorial Hospital, 320 Pa.Super. 106, 466 A.2d 1084 (1984); Njoku v. University of Pittsburgh, et al., 131 P.L.J. 137 (1983). Accordingly, the only issue before this Court is whether appellee’s discharge falls within the limited exception that has emerged in this State allowing recovery for a termination of employment that has violated a significant and recognized public policy. Novosel v. Nationwide Insurance Company, 721 F.2d 894 (3rd Cir.1983). We find that it does not.

Courts have often grappled with the difficult task of determining which activities should be protected in furtherance of public policy. Murg. Scharman, Employment at will: Do the Exceptions Overwhelm the Rule?, 23 B.C.L. Rev. 329 (1982). Some courts look to legislation including administrative rules, regulations and decisions, and also to judicial decisions, in determining whether an employee’s activity is protected by a significant public policy. Pierce v. Ortho Pharmaceutical Corporation, 84 N.J. 58, 72, 417 A.2d 505, 512 (1980). Many other courts have refused to recognize the tort of wrongful discharge absent a legislative enactment protecting the activity of the employed. This Court has found that the precise extent to which public policy limits an employer’s free reign over his business can only be determined on a case by case basis. Yaindl v. Ingersoll Rand Company, 281 Pa.Super. 560, 572, 422 A.2d 611, 617 (1980).

The leading Pennsylvania case on termination of at will employees is Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Our Supreme Court held that where no clear mandate of public policy is violated by a termination, an employee has no right of action against his employer. The court made clear that an essential element in permitting a cause of action for wrongful discharge was a finding of a clearly defined mandate of public policy. Id. 456 Pa. at 185, 319 A.2d at 180. In Geary, the Court found there was no wrongful discharge because the employer did not discharge the employee with the specific intent either to harm him or to coerce him to break any law or otherwise compromise himself. Id. In a case following Geary, this Court upheld a wrongful discharge cause of action because it clearly violates public policy to discharge an employee whose absence from work is due to his serving jury duty. Reuther v. Fowler and Williams, Inc., 255 Pa.Super. 28, 31, 386 A.2d 119, 120 (1978). However, in Yaindl, supra, we expressly denied relief to an employee who had alleged wrongful discharge as a result of a termination which he asserted was personally motivated. Yaindl, supra. Outcomes similar to Yaindl have appeared in two federal district court cases applying Pennsylvania law. Boresen v. Rohmand Haas, Inc., 526 F.Supp. 1230 (E.D.Pa.1981) and Adams v. Buddco, 583 F.Supp. 711 (E.D.Pa.1984).

In Boresen the court held that arguably unfair conduct on the part of an employer when terminating an employee was insufficient to give rise to a cause of action for wrongful discharge. In Adams it was held that Pennsylvania’s narrow public policy exception to the employment at will rule did not apply where an employee was terminated after reporting defects in the company’s products to his superiors.

The trial court in the instant case acted properly in finding the case by case approach applicable. Nonetheless, its implicit conclusion that this case fell within the “at-will public policy exception” was incorrect. It is clear that Geary, Yaindl, Boresen, and Adams demonstrate a pattern of favoring the employer’s interest in running its business. However, in Yaindl we did recognize that when determining whether or not an employee has a cause of action for wrongful discharge, “we must weigh several factors, balancing against an employees interest in making a living, his employers interest in running his business, the motivation for discharging an employee, the manner of effecting the discharge, and any social interests or public policies that may be implicated in the discharge.” Yaindl, supra, 281 Pa.Super. at 577, 422 A.2d at 620.

Nonetheless, to overcome the employer’s interest in running a business, the employee must show a violation of a clearly mandated public policy which “strikes at the heart of a citizen’s social right, duties, and responsibilities.” Novosel, supra at 899. In the instant case, the employee was terminated after an employment tenure of six years. Relations with those who were under his supervision deteriorated significantly during that time. This is important, for our analysis must extend beyond a mere inquiry into whether appellee competently performed his duties. As the Court in Geary recognized, “The problem extends beyond the question of individual competence, for even an unusually gifted person may be of no use to his employer if he cannot work effectively with his fellow employees.” Geary, supra, 456 Pa. at 182, 391 A.2d at 179. We must emphasize that the Pennsylvania Supreme Court in Geary and this Court in Yaindl refused to recognize the exception to the at-will rule when the employees were dismissed because of disputes with management and fellow employees. Geary, supra; Yaindl, supra. The link to a clearly mandated public policy is tenuous in the instant case. The trial court itself realized this in holding that, “the case at bar does not clearly fall within either those cases excluded from the exceptions or those presently identified as exceptions.” The discharge of appellee does not fall within what has been viewed in this state as a clearly mandated public policy.

Accordingly, we reverse the judgment of the Court of Common Pleas of Franklin County and direct that judgment n.o.v. be entered in favor of appellants.


author: ROWLEY, Judge: BROSKY, Judge, WIEAND, Judge, DEL SOLE, Judge,

text:
    505 A.2d 262
    COMMONWEALTH of Pennsylvania v. Charles CAMPBELL, Appellant.
    Superior Court of Pennsylvania.
    Argued April 24, 1985.
    Filed Jan. 31, 1986.

      Jules Epstein, Assistant Public Defender, Philadelphia, for appellant.
    Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before SPAETH, President Judge, and CAVANAUGH, BROSKY, ROWLEY, WIEAND, McEWEN, DEL SOLE, BECK and TAMILIA, JJ.
   OPINION ANNOUNCING JUDGMENT OF THE COURT

ROWLEY, Judge:

This appeal, from the Judgments of Sentence imposed on appellant, is before the Court en banc to consider (1) whether a criminal defendant’s claim that his convictions merge for sentencing purposes is waived by failing to raise the issue in the trial court, and (2) if not, whether appellant’s conviction for unauthorized use of an automobile merges into his conviction for theft.

Following a non-jury trial, appellant was found guilty of theft by unlawful taking or disposition, theft by receiving stolen property and unauthorized use of an automobile. Post-verdict motions were filed and denied. On May 10, 1982, appellant was sentenced to IIV2 to 23 months imprisonment on the conviction for unauthorized use and five years probation on the convictions for theft. The sentences were to be served concurrently. This direct appeal followed. The sole issue raised is whether appellant’s conviction for unauthorized use merges into the convictions for theft.

I.

Appellant first argues that his failure to raise the merger issue in the trial court did not waive the issue for appellate consideration since he is challenging the legality of his sentences, not the lawfulness of the convictions, and, appellant asserts, an illegal sentence can never be waived. While acknowledging a split of authority in this Court, the Commonwealth argues that appellant has waived his merger claim because he did not raise it in the trial court either at sentencing or in a motion to modify his sentences. The Commonwealth maintains that because appellant’s sentence is within the statutory limits and not violative of any specific statutory provision, it would be unjust and inefficient to reward appellant for his failure “to bring [the] alleged error to the attention of the trial judge.” Commonwealth’s brief at 5.

In Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), our Supreme Court refused to find waiver when appellant alleged that his sentences were duplicitous and violated the double jeopardy clause of the United States Constitution. U.S. Const, amend. V. The Court held that

it is beyond the power of a court imposing sentence to impose multiple sentences on a defendant for a single act; those sentences are unlawful____ The lawfulness of those sentences must be viewed together, where, as here, the facts set out in the indictment make out but a single act upon which the charges in the indictment rest.

Id., 468 Pa. at 330 n. 3, 362 A.2d at 230 n. 3 (citations omitted); Commonwealth v. Sparrow, 471 Pa. 490, 501-502 n. 7, 370 A.2d 712, 718 n. 7 (1977). Similarly, in Commonwealth v. Norris, 498 Pa. 308, 319, 446 A.2d 246, 251 (1982), the Commonwealth’s claim of waiver was rejected by the Supreme Court when appellant raised a double jeopardy claim identical to the one advanced in Walker. The Court observed that since appellant challenged only the legality of the sentences, and not the validity of the convictions, his claim had not been waived.

In arguing that appellant has waived his merger claim, the Commonwealth relies in part on Commonwealth v. McCabe, 242 Pa.Super. 413, 364 A.2d 338 (1976), aff'd per curiam, 479 Pa. 273, 388 A.2d 323 (1978) in which this Court distinguished Walker and concluded that appellant had waived his merger claim. The majority in McCabe distinguished Walker on two grounds: in Walker the defendant raised the merger claim on direct appeal whereas the defendant in McCabe raised the claim only after he had exhausted his right of direct appeal; also, in Walker it was clear that the indictment charging the defendant set forth only one act upon which the multiple charges were based, while in McCabe, it was not clear from the indictments that the charges were based upon a single act. In McCabe, the indictments charged the defendant with crimes committed' “ ‘on (or about) July 19, 1972.’ ” Id., 242 Pa.Superior Ct. at 417, 364 A.2d at 340. A Bill of Particulars, requested by the defendant, did not clarify whether the charges were a result of one criminal act or several. The Court declined to look beyond the indictments to resolve the merger issue and concluded:

Under these circumstances, a complete review of the trial testimony would be necessary to determine whether appellant’s conviction for assault with intent to maim and assault with intent to kill were founded upon several criminal acts committed at different times or upon solely one act.
We are reluctant to again consider the totality of evidence introduced against appellant in this case. When the indictments do not indicate that the sentences imposed were based on one act or several acts, we cannot say that the sentences were unlawful on their face. Consequently, we hold that appellant has waived his double punishment claim.

Id.

In Commonwealth v. Tolassi, 303 Pa.Super. 177, 449 A.2d 636 (1982) this Court discussed the distinction made in McCabe and enunciated the requirement that in order to avoid a claim of waiver, the alleged illegality of the sentence must somehow appear “on the face of the record.” Id., 303 Pa.Superior Ct. at 181, 449 A.2d at 638. However, Tolassi did not involve the merger of sentences; therefore, its statement that an illegal sentence must appear on the face of the record in order to avoid a holding of waiver is dictum. Also, in Commonwealth v. Kull, 267 Pa.Super. 55, 405 A.2d 1300 (1979) (per curiam) this Court found the merger claim had been waived, but then proceeded to address the claim on its merits.

In contrast to McCabe, this Court has refused to find waiver where the underlying facts indicated that the sentences merged; in so doing we did not limit our review to the information or indictment but instead cited Walker for the proposition that imposing multiple sentences is beyond the power of the sentencing court. See Commonwealth v. Franklin, 306 Pa.Super. 422, 430 n. 4, 452 A.2d 797, 801 n. 4 (1982); Commonwealth v. Moore, 300 Pa.Super. 488, 493 n. *, 446 A.2d 960, 963 n. * (1982); Commonwealth v. Crocker, 280 Pa.Super. 470, 474 n. 2, 421 A.2d 818, 820 n. 2 (1980).

In the present case, the informations charge that the acts were committed on or about April 27, 1981 in Philadelphia County. The theft and receiving information list the owner or custodian of the property and describe the property as an automobile. The unauthorized use information lists the same owner. As in Commonwealth v. McCabe, supra, it is unclear whether the convictions were “founded upon several criminal acts committed at different times or upon solely one act.” Id., 242 Pa.Super., at 417, 364 A.2d at 340. Thus, if we are to be bound by the rationale in McCabe, it would lead us to conclude that appellant has waived his merger claim.

After a careful review of Commonwealth v. Walker, supra, we are satisfied that it does not compel us to limit our review of the record to the information or indictment in determining whether a merger claim has been waived. In Walker the Supreme Court noted: “The lawfulness of those sentences must be viewed together, where, as here, the facts set out. in the indictment make out but a single act upon which the charges in the indictment rest.” Id., 468 Pa., at 330 n. 3, 362 A.2d at 230 n. 3. However, we do not interpret this language as mandating that our review must be limited to the information or indictment; nor do we read it as limiting the clear holding in Walker that a merger claim is tantamount to a claim that the sentence is unlawful and, as such, cannot be waived. Instead, we interpret the language as making reference only to the case that was then before the Supreme Court. We agree with Judge Hoffman’s dissenting opinion in McCabe: “I recognize that the waiver doctrine is grounded in notions of judicial economy, and that review of the record does require additional judicial effort. However, I find no support in Walker for the Majority’s distinction. In addition, the Majority cites no cases in support of its proposition — there are none.” Id., 242 Pa.Super., at 420, 364 A.2d at 342. We disapprove the language in McCabe which limits appellate review of a sentencing merger claim to either the indictment or information.

The question of the legality of multiple sentences, based on a claim that the convictions should have merged for sentencing, is not waived by the failure to raise it in the trial court. This is because multiple sentences for a single criminal act are unlawful and are beyond the power of the trial court. Commonwealth v. Walker, supra. We hold that a merger of sentencing claim may be raised for the first time on appeal or in a collateral proceeding and that, when so raised, it is incumbent upon this Court to review the entire record, as certified to us, to ascertain whether the convictions merge for sentencing. This Court will not limit itself to the information or indictment in resolving the issue. To the extent that Commonwealth v. McCabe, supra, and cases which follow McCabe hold otherwise, they are overruled.

II.

Having found that appellant has not waived his merger claim by raising it for the first time on appeal, we now turn to the merits of the claim. Appellant argues that his unauthorized use of the same automobile which he had stolen earlier comprised one criminal act and, consequently, only one sentence could lawfully be imposed. Appellant requests that we either vacate his sentence for the lesser offense of unauthorized use or vacate the sentence and remand for resentencing in accordance with the law.

The Commonwealth argues that appellant’s convictions do not merge because the Crimes Code, as adopted by the Legislature, strongly favors separate sentences for distinct statutory violations; the fact that appellant’s crimes arose out of a single transaction does not by itself require merger.

By arguing that he can be punished only once for a single criminal act, appellant raises the doctrine of common law merger. Common law merger requires us to consider whether, as a practical matter, appellant committed a single criminal act. Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985). Instead of looking solely to the elements of the offenses charged, the court must look to the underlying facts. Also, an examination of the statutes under which appellant has been convicted is essential. It is important to determine whether the facts reveal that the offenses charged caused more than one injury to the Commonwealth. Id., 344 Pa.Superior Ct. at 125, 496 A.2d at 40. In doing so, we must attempt to ascertain the legislative intent.

A punishment, even if it constitutes a duplicitous punishment, is not illegal if the legislature has authorized it. The only principle that can therefore justify the merger doctrine is that, just like the Double Jeopardy Clause, it provides a rule of statutory construction for determining what the legislature intended.

Id., 344 Pa.Superior Ct. at 126, 496 A.2d at 41. If the defendant’s criminal act caused more than one injury to the Commonwealth, the crimes do not merge. “In order to find that separate statutory offenses merge, we must therefore determine not only that the crimes arose out of the same criminal act, transaction, or episode, but also that the statutes defining the crimes charged were directed to substantially the same harm or evil.” Id., 344 Pa.Superior Ct. at 127, 496 A.2d at 41-42.

Because an analysis of the facts surrounding appellant’s convictions is crucial to determining whether the convictions merge, we briefly recite them. On April 27, 1981, at approximately 2:30 p.m., Officer Ryan of the Philadelphia Police Department observed an automobile proceeding just ahead of him on North 15th Street in Philadelphia. The automobile, driven by appellant, was weaving from the left to the right side of the street in a reckless manner. Officer Ryan signaled appellant to stop by turning on his dome light; instead, appellant accelerated and a chase ensued during which appellant passed through a school crossing, causing several children to jump in order to avoid being struck. Appellant’s automobile also crossed a sidewalk and ran over a motorcycle helmet before he was stopped at a roadblock that had been set up in response to Officer Ryan’s call for assistance.

Appellant, two other males, and a female were in the automobile when it was stopped. Upon being questioned by Officer Ryan, appellant stated that he did not know who owned the automobile, but that he had recently obtained it from one of the occupants of the automobile, a Michael Bredell. An examination of the automobile’s interior revealed that the ignition had been forcibly removed. Appellant did not possess a driver’s license.

The victim had parked her automobile on a Philadelphia street at 7:30 a.m. on April 27 and discovered it missing when she returned later that same day at 2:30 p.m. She subsequently identified the automobile appellant had been seen operating as her own. Appellant testified at trial that his girlfriend’s brother, Michael Bredell, had invited him to drive the automobile; it was only after having driven the automobile momentarily that Officer Ryan had signaled him to stop.

As we noted previously, our first task is to determine whether appellant’s convictions arose out of the same criminal act, transaction or episode. Appellant’s uncontradicted testimony established that he came in contact with the automobile only moments before Officer Ryan sighted appellant operating it. Because appellant’s receipt and operation of the automobile occurred close in time, and without interruption, they appear to constitute the same criminal act. See Commonwealth v. Campana, 452 Pa. 233, 248, 304 A.2d 432, 439, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (quoting definition of same criminal episode from Commentary to ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance § 1.3(a) (Approved Draft, 1968): “an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series.”); Commonwealth v. Green, 232 Pa.Super. 134, 335 A.2d 493 (1975).

A determination that appellant’s convictions arose out of a single criminal act does not, however, end our inquiry. “[S]eparate punishments may be imposed for a single, indivisible act where the act includes conduct proscribed by separate statutes each of which seeks to prevent a substantially different harm or evil.” Commonwealth v. Williams, supra, 344 Pa.Superior Ct. at 143, 496 A.2d at 50. We, therefore, must determine how many injuries the Commonwealth sustained as a result of appellant’s criminal act in order to determine whether the convictions merge. In performing this task we “devote close attention to the language the Legislature has used and the scheme it has followed in defining offenses in the Crimes Code and other penal statutes.” Id., 344 Pa.Superior Ct. at 143, 496 A.2d at 50.

The offense of unauthorized use of an automobile is committed when the defendant “operates the automobile ... of another without consent of the owner.” 18 Pa.Cons. Stat. § 3928(a). A theft by unlawful taking or disposition occurs when the defendant “unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.” 18 Pa.Cons.Stat. § 3921(a). Finally, 18 Pa.Cons.Stat. § 3925(a) defines receiving stolen property in the following manner:

A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

The above offenses are contained in Chapter 39 of the Crimes Code which is entitled “Theft and Related Offenses.” Section 3902 of that chapter, entitled “Consolidation of theft offenses,” provides, inter alia, that “[c]onduct denominated theft in this Chapter constitutes a single offense.” The offense of unauthorized use is not denominated as such.

By enacting the unauthorized use statute, the Legislature sought to protect the Commonwealth from harm as a result of the defendant’s operation of an automobile without the owner’s consent. The requirement that the defendant must operate the automobile is an indication of the Legislature’s intent to protect an interest different than the one sought to be protected by the theft statutes. In Commonwealth v. Hogan, 321 Pa.Super. 309, 313, 468 A.2d 493, 495 (1983) this Court noted that the unauthorized use statute

was derived from Section 223.9 of the Model Penal Code and was intended to meet a ‘... need for a nonfelony sanction against the disturbing and dangerous practice of driving off a motor vehicle belonging to another. Such, joyriding jeopardizes the vehicle itself, a considerable amount of temptingly mobile property, and, since the circumstances are conducive to irresponsible behavior in the operation of the vehicle, jeopardizes the lives of the riders and others.’ American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments, 1980) § 223.9, Comment 1, p. 271. [Emphasis supplied.]

Thus, in prohibiting the unauthorized operation of a motor vehicle, the Commonwealth sought, inter alia, to protect from harm those individuals the defendant might come in contact with during the operation of the vehicle. This concern is distinct from the one sought to be protected by the theft statutes which is, primarily, the property rights of owners of personal property.

Not only do the statutes protect the Commonwealth from different harms, they also contain different elements. This is another consideration in determining whether the offenses merge. In Commonwealth v. Robinson, 317 Pa.Super. 135, 463 A.2d 1121 (1983) this Court held that unauthorized use did not merge into receiving stolen property for sentencing because each offense required different acts and mental elements. For receiving stolen property, the act is receiving; for unauthorized use, the act is operating an automobile. The mental element for receiving is that the defendant knew the property was stolen. The mental element for unauthorized use requires that the defendant knew that he did not have the owner’s consent to operate the vehicle. Id., 317 Pa.Superior Ct. at 138, 463 A.2d at 1123. Thus, the Court concluded that the offenses did not merge. Contra Commonwealth v. Wilcox, 310 Pa.Super. 331, 456 A.2d 637 (1983) (unauthorized use was necessarily an integral part of receiving stolen property and the two should have merged for sentencing).

In Commonwealth v. Pemberth, 339 Pa.Super. 428, 489 A.2d 235 (1985) this Court held that because neither theft nor receiving stolen property involve the same conduct proscribed by the unauthorized use of a motor vehicle statute, unauthorized use is not a lesser-included offense of the theft charges. The Court observed that a person could steal an automobile without operating it. “A person could push a car, tow the car or receive possession of a previously stolen car, and then exercise control over that car.” Id., 339 Pa.Superior Ct. at 431, 489 A.2d at 236.

We conclude that the unauthorized use statute does not merge into either the theft or receiving statute because (1) the statutes serve to protect the Commonwealth from different harms and (2) the statutes require proof of different elements. To the extent that Commonwealth v. Wilcox, supra, holds otherwise, it is overruled. Therefore, appellant’s convictions do not merge for sentencing and those sentences are affirmed.

Judgments of Sentence affirmed.

BROSKY, J., files a concurring opinion.

WIEAND, J., files a concurring opinion in which CAVA-NAUGH, and McEWEN, JJ., join.

DEL SOLE, J., files a concurring and dissenting statement.

SPAETH, Former President Judge, did not participate in the final decision of this case.

BROSKY, Judge,

concurring:

I join in the well-reasoned opinion of the majority except as to the issue of whether the crimes of theft and unauthorized use of an automobile merged for sentencing purposes in this case. Although I agree with the majority that they did merge, my analysis differs somewhat from that of the majority.

I disagree with the majority’s analysis to the extent that it suggests that crimes which occur in the same criminal episode constitute the same criminal act and thus must be subject to an analysis of how many injuries the Commonwealth has suffered. Although, the majority cites Commonwealth v. Campana, 455 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), Campana merely stands for the proposition that all charges arising from a single criminal episode must be prosecuted in a single proceeding.

While I certainly agree that the theft and the unauthorized use occurred in the same criminal episode in this case, the next question to be answered, as noted by Judge Wieand in his Concurring Opinion, is whether the act of operating the vehicle is also the act of unlawfully taking the vehicle. If it is not, then the two criminal acts are merely successive steps in the same transaction which do not merge unless they necessarily involve one another. See Commonwealth v. Williams, 344 Pa.Super. 108, 122, 496 A.2d 31, 45 (1985) (en banc). If, however, the act of operating the vehicle is also the act of unlawfully taking the vehicle, then the crimes charged grow out of a single act and the question of merger depends upon an analysis of how many injuries the Commonwealth sustained as a result of that single act.

I believe the record indicates that, here, the act of theft was also the act of operating the vehicle. I agree with the majority that this single act resulted in two harms to the Commonwealth. Therefore, I also agree with the majority that these crimes do not merge for sentencing purposes.

WIEAND, Judge,

concurring:

I agree with the majority that the judgments of sentence should be affirmed; and, therefore, I concur in the result.

In recent years, there have not been many issues which have received from this Court a more uneven treatment than claims that offenses have merged for purposes of sentencing. It was in recognition of this and in an effort to bring uniformity and predictability to this substantive area of the criminal law that a court en banc considered the merger of offenses in Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985). The court there traced the history of the doctrine of merger, as well as the several standards applied by the decided cases, and adopted a rule to be followed in the future.

In the instant case, a majority of the court, in my judgment, has again increased the potential for uneven treatment of the merger of offenses. It has done so by holding that separate sentences for merged offenses cannot be waived. The effect of its holding, although the majority does not acknowledge it, is to encourage, if not compel, a reviewing court to decide merger issues sua sponte, without benefit of argument by counsel and without prior consideration by the sentencing court. The issue of merger of offenses for sentencing purposes is frequently a difficult issue. Sometimes it can be determined by examining the face of the record. In other instances, a determination can be made only after a full and complete review and analysis of the facts proved at trial. In the latter situation, I am persuaded that uniformity in the procedural and substantive law, as well as judicial economy, will better be served by requiring the merger issue to be raised in the first instance in the sentencing court.

I would adopt and follow the analysis laid out by Judge (now President Judge) Spaeth in Commonwealth v. Tolassi, 303 Pa.Super. 177, 181, 449 A.2d 636, 638 (1982), as follows:

Typically, the sort of defect that is not subject to waiver — which is what is really meant by saying that a sentence is “illegal” — will appear on the face of the record and will go to the power of the court to impose sentence. Thus the sentence may be outside the statutory limits for the crime of which the defendant was convicted. Commonwealth v. Brunner, 243 Pa.Superior Ct. 55, 364 A.2d 446 (1976). Or it may appear that there was no finding of guilt to support the sentence. Commonwealth v. Paige, 287 Pa.Superior Ct. 133, 429 A.2d 1135 (1981)____ Sometimes the claim is that convictions of two separate crimes should merge for sentencing because there was only one criminal act. In such a case, whether the sentence is illegal depends on whether it is clear from the [information] that there was only one criminal act, in which case the defect is apparent on the face of the record and the sentence is illegal. Commonwealth v. Walker, supra. If it can not be determined from the [information] whether there was only one criminal act, the defect is not apparent and the claim that the sentence was improper is subject to waiver. Commonwealth v. McCabe, 242 Pa.Superior Ct. 413, 364 A.2d 338 (1976), aff'd per curiam, 479 Pa. 273, 388 A.2d 323 (1978).

One who is a thief, whether because he has unlawfully taken or because he has dishonestly received a stolen automobile, commits a separate and additional offense every time he operates the vehicle without the owner’s consent. It is factually possible, however, that there may be only one criminal act, as where the act of operating the vehicle is also the act of unlawfully taking or receiving the vehicle. For the majority to determine in this case whether the several convictions merged has necessarily required a review and analysis of the facts established by the evidence. This, as the majority has conceded, “is crucial to determining whether the convictions merge.” (At p. 64).

An issue whose determination requires an evidentiary review and determination of the facts should not be raised for the first time on appeal. Similarly, a reviewing court should not be expected to conduct an evidentiary review sua sponte in such cases. In cases of this type, rather, the issue should be raised for the first time in the trial court. Where a review of the evidence is essential to determine whether there has been only one criminal act for sentencing purposes, that determination should be made in the first instance by the court which is responsible for imposing sentence.

If, in imposing sentence, the sentencing court commits an error, a petition to reconsider and/or modify the sentence will enable the court to correct its own error before an appeal is filed. Pa.R.Crim.P. 1410 “establishes that a petition to modify is a preliminary step in the sentence review process. Its purpose is to give the sentencing court an opportunity to reconsider the sentence and correct any mistakes which may have been made. It also makes appellate review more meaningful.” Commonwealth v. Anderson, 304 Pa.Super. 476, 482, 450 A.2d 1011, 1014 (1982).

These same considerations are applicable to claims that two or more convictions merge for sentencing purposes where a careful review of the evidence is necessary to determine whether there was only one criminal act. If such claims are not raised in the sentencing court, they have been waived, and they should not be considered for the first time on appeal. By adhering to this procedure we make the appellate process more meaningful, our task of review less onerous, and the results more predictable. Why should an appellate court, it may be asked, undertake sua sponte to decide difficult merger issues without input by either counsel or the sentencing court?

Moreover, I am unable to comprehend any good reason for refusing to allow a criminal defendant to effect a knowing waiver of a merger issue if he chooses to do so. If two convictions merge for sentencing purposes, the decisions clearly hold that only one sentence may be imposed. If the sentencing court erroneously imposes concurrent sentences on both convictions, however, a defendant may well elect to waive the defect for, in any event, the time which he will be required to serve is the same as if only one sentence had been imposed. The appellate victory which he may be able to achieve under such circumstances may not be worth the cost. Having made a knowing, affirmative waiver of the issue, however, neither he nor an appellate court should be allowed to revive the issue at a later date.

The sentences imposed in this case were concurrent. The sentence for unauthorized use of a vehicle was for not less than 11% nor more than 23 months in prison. The sentence for theft was probation for a period of five years. Appellant did not file a motion to modify the sentence as required by Rule 1410. The issue of the merger of the convictions for sentencing purposes was not at any time raised before the court which imposed sentence. I would hold, therefore, that the issue has been waived. I would not permit appellant to raise the issue for the first time on appeal. To hold otherwise, as the majority does, is to weaken the salutary effect of Rule 1410.

CAVANAUGH and McEWEN, JJ, join.

DEL SOLE, Judge,

concurring and dissenting:

While I join that portion of the Majority Opinion authored by my colleague, Judge Rowley, that a defendant’s claim of convictions merging for sentencing purposes is not waived by failing to raise the issue in the trial court, I cannot join, and therefore respectfully dissent from that portion of the opinion that fails to find a merger from the facts in this case.

      . 18 Pa.Cons.Stat. § 3921.

      . 18 Pa.Cons.Stat. § 3925.

      . 18 Pa.Cons.Stat. § 3928.

      . Appellant was charged at bill No. 2079 with theft by unlawful taking or disposition and receiving stolen property, and at bill No. 2080 with unauthorized use of an automobile. Appellant's sentence for theft and receiving was recorded on bill No. 2079 and his sentence for unauthorized use was recorded on bill No. 2080. By imposing one general sentence on bill No. 2079, the trial court effectively merged the two offenses for sentencing purposes. Both theft and receiving are ranked as third degree felonies, 18 Pa.Cons.Stat. § 3903(a).

      . Appellant does not challenge the sufficiency of the evidence to support his convictions.

      . Although Commonwealth v. Walker, supra, was overruled in part by Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984), Frisbie does not alter the portion of Walker that we address today: whether a claim that convictions merge for sentencing can be waived.

      . This Court also declined to find waiver of a merger claim in Commonwealth v. Neidig, 340 Pa.Super. 217, 489 A.2d 921 (1985); Commonwealth v. Zaengle, 332 Pa.Super. 137, 480 A.2d 1224 (1984); Commonwealth v. Vazquez, 328 Pa.Super. 86, 476 A.2d 466 (1984); Commonwealth v. Newman, 323 Pa.Super. 394, 470 A.2d 976 (1984); Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983); Commonwealth v. Casella, 312 Pa.Super. 375, 458 A.2d 1007 (1983); Commonwealth v. Dieterly, 294 Pa.Super. 25, 439 A.2d 732 (1981); Commonwealth v. Welch, 291 Pa.Super. 1, 435 A.2d 189 (1981); Commonwealth v. Schilling, 288 Pa.Super. 359, 431 A.2d 1088 (1981); Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980); Commonwealth v. Brazzle, 272 Pa.Super. 438, 416 A.2d 536 (1979); Commonwealth v. Lawton, 272 Pa.Super. 40, 414 A.2d 658 (1979);
        Commonwealth v. Reidenbaugh, 266 Pa.Super. 315, 404 A.2d 697 (1978) ; Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979) ; Commonwealth v. Belgrave, 258 Pa.Super. 40, 391 A.2d 662 (1978); Commonwealth v. Guenzer, 255 Pa.Super. 587, 389 A.2d 133 (1978).

      . While Commonwealth v. McCabe, supra, also distinguished Walker on the basis that the defendant in Walker raised his claim on direct appeal, we do not find this distinction valid. See Commonwealth v. Thomas, 335 Pa.Super. 323, 484 A.2d 155 (1984) (merger addressed in appeal from denial of PCHA petition despite failure to raise issue on direct appeal); Commonwealth v. Padden, 335 Pa.Super. 51, 483 A.2d 950 (1984) (merger addressed in appeal from denial of petition to vacate sentence following direct appeal in which merger was not considered); Commonwealth v. Sayko, 333 Pa.Super. 265, 482 A.2d 559 (1984) (merger of sentencing claim addressed on merits after appellant’s failure to raise issue on direct appeal); Commonwealth v. Mitchell, 319 Pa.Super. 170, 465 A.2d 1284 (1983) (merger issue addressed for first time in PCHA petition).


author: DEL SOLE, Judge:

text:
    505 A.2d 271
    Salvatore GRAFFIGNA, Appellant, v. CITY OF PHILADELPHIA and Southeastern Pennsylvania Transportation Authority.
    Superior Court of Pennsylvania.
    Argued May 22, 1985.
    Filed Feb. 7, 1986.

      Evan E. Laine, Philadelphia, for appellant.
    Stephen Dittman, Philadelphia, for appellee.
    Before DEL SOLE, MONTEMURO and BECK, JJ.
   DEL SOLE, Judge:

On December 8, 1978 the Appellant, Salvatore Graffigna, was held up and shot by an unidentified assailant in the SEPTA subway station at Broad and Race Streets in Philadelphia. Approximately two years later he filed suit against both the City of Philadelphia and SEPTA alleging negligence because of inadequate security provisions in the subway concourse. SEPTA filed a motion for judgment on the pleadings, arguing that the Appellant had failed to comply with the six month notice requirement of 42 Pa.C. S.A. § 5522. The statute provides:

§ 5522. Six months limitation
(a) Notice prerequisite to action against government unit.
(1) Within six months from the date that any injury was sustained or any cause of action accrued, any person who is about to commence any civil action or proceeding within this Commonwealth or elsewhere against a government unit for damages on account of any injury to his person or property under Chapter 85 (relating to matters affecting government units) or otherwise shall file in the office of the government unit and if the action is against a Commonwealth agency for damages, then also file in the office of the Attorney General, a statement in writing, signed by or in his behalf, setting forth:
(i) The name and residence address of the person to whom the cause of action has accrued.
(ii) The name and residence address of the person injured.
(iii) The date and hour of the accident.
(iv) The approximate location where the accident occurred.
(v) The name and residence or office address of any-attending physician.

42 Pa.C.S.A. § 5522.

The trial court granted SEPTA’s motion for judgment on the pleadings, finding that SEPTA was a government unit for purposes of the statute and that the Appellant had not provided the required six months notice. Mr. Graffigna then filed this appeal.

Appellant argues that the trial court erred in granting judgment on the pleadings, first, because SEPTA is not a government unit, and alternatively, because even if SEPTA is a government unit, that the full police investigation of the incident fulfills the notice requirement. Because the first issue raised by the Appellant, that is, whether SEPTA is a government unit for purposes of the statute, is an issue which involves the application, interpretation and enforcement of a statute regulating the affairs of political subdivisions, municipalities and other local authorities, 42 Pa.C. S.A. § 762(a)(4)(i)(A), we transfer jurisdiction over the appeal to Commonwealth Court.

The applicable section of the Judicial Code which establishes the jurisdiction of Commonwealth Court provides:

§ 762. Appeals from the courts of common pleas
(a) General rule. — Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
(4) Local government civil and criminal matters.—
(i) All actions or proceedings ... where is drawn in question the application, interpretation or enforcement of any:
(A) statute regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or of the officers, employees or agents thereof ...

42 Pa.C.S.A. § 762(a)(4)(i)(A). (Emphasis supplied).

The instant appeal raises an issue involving the interpretation and application of a statute which regulates the affairs of government agencies, municipalities and other authorities. The statute in question, 42 Pa.C.S.A. § 5522, provides a six months notice requirement when a government unit is the defendant in an action and the reviewing court in this case must decide a question which seems to be one of first impression: whether SEPTA is a government unit for purposes of the statute. We find that this case properly belongs before the Commonwealth Court because that court has been given jurisdiction when such an issue has been drawn into question on appeal from a final order from a court of common pleas.

We note at this point that § 762 of the Commonwealth Court jurisdictional statute has permitted the interpretation of certain statutes dealing with local government units and agencies, for example, the Public Employe’s Relations Act and the Political Subdivision Tort Claims Act to come before our Court or Commonwealth Court. Indeed, some overlapping of appellate jurisdiction was foreseen by the Legislature and thus 42 Pa.C.S.A. § 704 provides that the failure of an appellee to object to the jurisdiction of an appellate court operates to perfect jurisdiction of that appellate court notwithstanding any other provisions of the title —including, obviously, the portion of § 762 cited earlier in this opinion. Sections 704 and 705 also provide that the appellate court can transfer an appeal on its own motion, as we are doing here. The factors to be weighed in reaching a decision to transfer are (1) whether the case has already been transferred; (2) the possibility of establishing two conflicting lines of authority on one subject; and (3) whether the “legislatively ordained division of labor” would be disrupted. Karpe v. Borough of Stroudsburg, 315 Pa.Super. 185, 187, 461 A.2d 859 (1983); Valley Forge Industries, Inc. v. Armand Construction, Inc., 248 Pa.Super. 53, 374 A.2d 1312, 1316 (1977).

Although this case has not been previously transferred, it would be unrealistic to ignore the fact that by exercising our discretion to transfer, we are delaying the disposition of the case. We believe however that the inconvenience caused to the parties by this delay is outweighed by the benefit brought about by providing a consistent body of law in an area which we believe the Legislature clearly intended would be the province of our sister court. Therefore, for the sake of uniformity of decision and to maintain the “legislatively ordained division of labor”, we transfer this case to Commonwealth Court.

This appeal is transferred to Commonwealth Court.

      . The City of Philadelphia is not a party to this appeal.

      . 43 P.S. § 1101.201 etseq. Cases involving PERA issues usually come under the jurisdiction of Commonwealth Court, as in Fouts v. Allegheny County, 64 Pa.Cmwlth. 441, 440 A.2d 698 (1982). But see a Superior Court opinion, Cohen v. Temple University, 299 Pa.Super. 124, 445 A.2d 179, (1982).

      . Now covered by Sections 8541-64 of the Judicial Code, 42 Pa.C.S.A. §§ 8541-64. Both our Court and the Commonwealth Court have contributed to the rapidly evolving body of law interpreting this Act. See Adams v. City of Harrisburg, 78 Pa.Cmwlth. 387, 467 A.2d 657 (1983); Williams By and Through Williams v. Lewis, 319 Pa.Super. 552, 466 A.2d 682 (1983); Lewis by Keller v. Hatboro-Horsham School District, 320 Pa.Super. 59, 465 A.2d 1090 (1983); Vann v. Board of Education of the School District of Philadelphia, 76 Pa.Cmwlth. 604, 464 A.2d 684 (1983).

      . Recently, a panel of our Court filed an opinion which held that 42 Pa.C.S.A. § 8542 precluded municipal liability for injuries caused by the criminal acts of third persons on property under the municipality’s ownership and control. Casey v. Geiger and the Borough of Camp Hill, 346 Pa.Super. 279, 499 A.2d 606 (1985) (Hoffman, J. dissenting). One month earlier, the Commonwealth Court filed an opinion which seems' to reach the opposite result. Johnson v. SEPTA, 91 Pa.Cmwlth. 587, 498 A.2d 22 (1985), (Craig, J. dissenting); (Barry, J. concurring). It is this sort of problem we hope to avoid by transferring this case.