author: CIRILLO, Judge:

text:
    487 A.2d 356
    UNITY SAVINGS ASSOCIATION, Appellant, v. AMERICAN URBAN SCIENCES FOUNDATION INC., and American Bank & Trust Co. of Pa.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1984.
    Filed Dec. 21, 1984.

      Robert J. Hoelscher, Philadelphia, for appellant.
    Joseph M. Hankins, Philadelphia, for appellee.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas, Luzerne County, staying a sheriff’s sale scheduled by appellant, the Unity Savings Association (“Unity”). The stay of execution was granted upon petition of appellee, the American Bank and Trust Company of Pennsylvania (“American”). The subject property scheduled for execution consisted of fifty-six subdivision lots in Plot “B” of the Valley of Lakes Development in Black Creek Township, Luzerne County, Pennsylvania (“B” lots). Both Unity and American maintained mortgage liens on the “B” lots.

The dispute between Unity and American initially arose in October of 1979 when American, in order to foreclose its mortgage liens, filed a writ of execution on the “B” lots. After several continuances the writ was reissued and sheriffs sale scheduled for June 27, 1980. Unity, with the consent of American, was granted leave to intervene in the pending execution proceedings. With mortgage liens of its own on the “B” lots, Unity, as a party in interest, filed a petition to stay the sale scheduled by American. On July 15, 1980 following a hearing, Unity’s petition for stay of execution was denied. On August 1, 1980, American purchased the “B” lots on the writ at a continued sheriff’s sale. The sheriff’s deed was delivered and recorded on August 12, 1980.

Notwithstanding American’s purchase at sheriff’s sale, Unity issued its own writ of execution on the “B” lots. By stipulation of counsel, American intervened, and on November 26 petitioned the court for a stay of execution. The parties agreed that the sale of the “B” lots would be postponed pending the outcome of negotiations.

Protracted settlement discussions over the “B” lots continued for the next ten months. Negotiations eventually broke down.

On October 7, 1981 the hearing on American’s petition to stay sheriff’s sale was held before the Honorable Bernard C. Brominski. Following this hearing, Judge Brominski ordered a permanent stay of Unity’s scheduled sheriff’s sale. He explained that Unity could not proceed with sheriff’s sale on the “B” lots since its mortgage lien on the subject property had been divested by American’s prior execution on August 1, 1980. Unity appealed.

Our concern on appeal is whether the stay of execution was proper. Is the divestiture of Unity’s mortgage lien, as determined by Judge Brominski, a valid basis for staying its execution on the “B” lots? Is a petition to stay execution under Rule 3121(b) of the Pennsylvania Rules of Civil Procedure an appropriate manner in which to determine the respective priority of two competing mortgage liens?

Under the Pennsylvania Rules of Civil Procedure, one way to attack an execution is by a petition for stay. Pa.R. C.P. 3121. Rule 3121 provides that a court may grant a stay of execution upon application of a party in interest, showing “any legal or equitable ground therefor.” Pa.R. C.P. 3121(b). This rule, as presently constituted, does not delineate the grounds for a stay and subsequent case law does little to add definition. Nevertheless, we are convinced that the divestiture of Unity’s lien is a valid ground by which American as an interested party may obtain a stay of Unity’s execution.

As commonly understood, a lien is a charge upon property by which a lien creditor has the right to execute on that property in order to satisfy a debt or other obligation. Associate Financial Services Co., Inc. v. O’Dell, 262 Pa.Super. 584, 396 A.2d 1324 (1977); United States v. Sullivan, 333 F.2d 100 (3rd Cir.Pa.1964). Of course, the right to execute against a debtor’s property, like the right of lien itself, is subject to divestment. Once a creditor’s lien on property is divested, so too is his right to execute on that property. See, Steckel v. Stickland, 50 Pa. D & C 2d 784 (1971); Hirsch v. Bunker Hill Mutual Insurance Co., 8 Pa. D & C 2d 259 (1957) (discharged judgment will not support writ of execution and such writ should be stayed). In such circumstances, a stay of execution is not only correct, but necessary.

Relevant to the instant case is the general rule that a sheriff’s sale of property divests all junior liens on that property. Albert J. Grosser v. Rosen, 436 Pa. 311, 259 A.2d 679 (1969); Borough of McDonald v. Davidson, 128 Pa.Super. 38, 193 A. 472 (1937); Sum.Pa.Jur. Mortgages, § 256. Here, the basis for the order staying the sheriffs sale was Judge Brominski’s finding that Unity’s mortgage lien on the “B” lots had been divested. Judge Brominski ruled that American’s mortgage lien was senior in priority to Unity’s lien, and that American’s purchase of the “B” lots at the sheriff’s sale of August 1, 1980, effectively extinguished Unity’s right to execute on the property.

Unity’s real bone of contention is not whether its mortgage lien was junior to American’s lien, nor whether its lien was divested by American’s prior execution. In fact, Unity voices little challenge to Judge Brominski’s findings as to these issues. Rather, Unity maintains that the determination of lien priority and the attendant finding of lien divestiture were subjects for plenary proceedings in ejectment and were not properly decided in a summary proceeding for stay of execution. Unity urges us to allow its scheduled sheriff’s sale to proceed, and to leave American with the option of litigating questions of title subsequently. We reject Unity’s plea.

Generally, the practice in Pennsylvania has been to allow a judgment creditor to sell any real estate alleged to belong to his debtor, and to have issues of title tried afterwards in an action of ejectment. Bell v. Mock, 413 Pa. 71, 197 A.2d 610 (1963); Mantz v. Kistler, 221 Pa. 142, 70 A. 545 (1908); Davis v. Michener, 106 Pa. 395 (1884). The courts usually do not make such determinations of title in advance of sale. Goodrich Amram 2d § 3102:1:2.

This practice, while time-honored, has not been above reproach. As early as 1908, our Supreme Court noted that the practice of determining questions of title only after execution sale has taken place is “not the best system.” Mantz v. Kistler, supra, 221 Pa. at 144, 70 A. at 546. In Mantz the Court stated that a system in which “the rights of parties are fought out and adjusted in advance of sale ... is very much superior." Id.

Since the promulgation of Rule 3121, the practice of deciding issues of disputed title only after sale no longer seems inviolate. Goodrich Amram 2d § 3102:1:2. The broad language of Rule 3121 permits the trial court to stay execution pending the disposition of a property claim, or on any other legal or equitable ground. Of course, the existence of a proper legal ground for stay of execution must be established in advance of sale. Here, the ground asserted for stay of execution, divestiture of Unity’s lien, is determinable only through an assessment of lien priority. In these circumstances, it is not improper to address questions of title prior to sheriff’s sale.

Clearly in this case, if Unity’s lien was divested, and its right to execute thereby discharged, the scheduled execution sale should not be allowed to proceed. Doubtlessly, a sale under these conditions would work undue hardship on American. Judge Brominski determined that American’s mortgage lien on the “B” lots was senior to Unity’s liens; and moreover, that American, by virtue of its purchase at the previous sheriff’s sale, obtained title free and clear of Unity’s claims. While other recourse may be available to Unity, it may not now execute against the “B” lots.

A second issue raised by Unity concerns a procedural matter. Approximately one week prior to the hearing date scheduled for American’s petition to stay execution, Unity filed a praecipe directing the prothonotary to strike the “B” lots from its writ of execution. Unity contends that its removal of the “B” lots from its writ effectively mooted this case — since there was no longer a sheriff’s sale to be stayed. Following the hearing on American’s petition to stay, Judge Brominski ruled that Unity’s eleventh hour excision of the “B” lots from its writ was harassing, vexatious, and prejudicial to American. We agree with Judge Brominski.

It is generally within the power of an execution creditor to control his writ and to order the writ withdrawn or suspended. 12 Pa.Std. Practice 2d § 72:66. However, as we noted above, the ultimate control of the execution process rests with the trial court. Capozzi v. Antonoplos, 414 Pa. 565, 201 A.2d 420 (1964). It is the trial court’s responsibility to see that the execution process is not abused.

Here, Unity attempted to withdraw its writ of execution one week prior to the date of hearing on American’s petition. A year of negotiations between the parties had passed. Considerable time and expense had been invested. Surely, after the time spent and inconvenience suffered, American is entitled to resolution of its petition.

We find Pa.R.C.P. 229 compelling analogy. The withdrawal of Unity’s writ, like a plaintiff’s praecipe for discontinuance, should not be tolerated where substantial harassment or vexation results to another party. Pa.R.C.P. 229(c). Judge Brominski was correct in disallowing Unity’s withdrawal.

In sum, Judge Brominski properly reached the merits of this case, and correctly found that a valid ground for stay of execution existed.

Order affirmed.

      . The order denying Unity’s petition was affirmed on appeal. American Bank & Trust Co. v. High Vista, 304 Pa.Super. 611, 450 A.2d 1048 (1982).

      . See, e.g., 42 Pa.C.S. § 8152. Judicial sale as affecting lien of mortgage.
      (c) Sale on prior lien — A judicial or other sale of real estate in proceedings under a prior judgment ..., or in foreclosure of a prior mortgage shall discharge a mortgage later in lien.
      The purchaser at the sale takes title to the property free and clear of the mortgage, and also of all junior liens. Glenn on Mortgages § 76.

      . The system in New Jersey, for example, allows courts to adjust priorities of competing execution creditors in summary proceedings prior to execution sale. Walton v. Hillier, 128 N.J.L. 7, 24 A.2d 219 (1942); Miller v. Barber, 73 N.J.L. 38, 62 A. 276 (1905).

      . Cf. Fleming v. Quaid, 204 Pa.Super. 19, 201 A.2d 252 (1964) (Rule 3121 does not provide appropriate procedure to determine ownership of attached fund; dispute over debtor’s ownership of property raised in Rule 3121 petition will not prevent attachment). This case is distinguishable from the case at bar. In Fleming the quantity and quality of debtor’s property are at issue, not the creditor’s right to execute. We held that because the debtor’s personal property is fungible, attachment should be allowed to proceed and questions of ownership decided thereafter. In the case at bar, however, the ownership of debtor’s property (B lots) is not at issue. Rather, the concern is whether the creditor/mortgagee (Unity) retains the right to execute or whether this right has been divested. This matter must be resolved in advance of sale.


source: Caselaw Access Project

author: WIEAND, Judge: POPOVICH, Judge,

license: Public Domain

text:
    487 A.2d 360
    LeGARE, INCORPORATED, Appellee, v. BROOKHAVEN RESIDENTIAL SALES, INCORPORATED, Appellant. BROOKHAVEN RESIDENTIAL SALES, INCORPORATED, Appellant, v. LeGARE, INCORPORATED, Appellee. LeGARE, INCORPORATED, Appellant, v. BROOKHAVEN RESIDENTIAL SALES, INCORPORATED, Appellee. BROOKHAVEN RESIDENTIAL SALES, INCORPORATED, Appellee, v. LeGARE, INCORPORATED, Appellant.
    Superior Court of Pennsylvania.
    Argued July 12, 1984.
    Filed Jan. 4, 1985.
    Petition for Allowance of Appeal Denied June 7, 1985.

      C. Steven Miller, Allentown, for Brookhaven, appellant (at 107 and 108) and for appellee (at 109 and 110).
    Michael Prokup, Allentown, for Legare, appellant (at 109 and 110) and for appellee (at 107 and 108).
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

Brookhaven Residential Sales, Inc. (Brookhaven) contracted with LeGare, Inc. (LeGare) to construct eight condominium-type residences on a development tract of land owned by LeGare and known as Kinderwood in Easton, Northampton County. The written agreement provided for periodic payments and required that construction be completed in accordance with a time schedule therein set forth. Completion of the project was late by approximately a year. Le-Gare commenced an action for damages allegedly caused by the delay; and Brookhaven filed a separate action to recover the balance due according to the terms of the contract. The two actions were consolidated for trial and tried without jury before the Honorable Richard D. Grifo. The court found that Brookhaven was entitled to recover a balance due under the contract in the amount of $53,054.70. It also found that LeGare had sustained damages because of Brookhaven’s late performance in the amount of $53,415.74. Exceptions filed by both parties were dismissed by the court en banc, and separate judgments were entered on the verdict in the amounts found by the court. Both parties appealed from the two judgments. Brookhaven contends that the trial court erred in finding that it was liable for delay which, it argues, was caused either by LeGare’s inaction or conditions beyond Brookhaven’s control. Le-Gare argues that the trial court erred in refusing to award damages for lost profits caused by changed market conditions.

“[T]he findings of fact of a trial judge, sitting without a jury, sustained by the court en banc, have the force and effect of a jury’s verdict, and, if based on sufficient evidence, will not be disturbed on appeal.” Girard Trust Bank v. Sweeney, 426 Pa. 324, 330, 231 A.2d 407, 411 (1967). See also: In re Miller, 301 Pa.Super. 511, 515, 448 A.2d 25, 27 (1982). We focus, therefore, on whether the trial court’s findings were supported by competent evidence.

The plan of Kinderwood called for residences to be built on the side of a wooded, rocky and steep hill overlooking the Delaware River. Brookhaven’s representatives, with site plan in hand, had made an inspection of the site before entering the construction agreement. Paragraph 16 of the agreement provided as follows:

16. The work to be performed under this agreement shall be commenced within ten (10) days notice after execution of this agreement, and the first unit shall be ready for occupancy within 240 calendar days thereafter with each subsequent unit to be completed within fourteen (14) day intervals thereafter, unless the Contractor is delayed at any time in the progress of the work by any act or neglect of the Owner or by unavoidable casualties or any causes beyond Contractor’s control.

The first unit was scheduled for completion on or before February 15, 1978. Although the work started promptly, Brookhaven encountered rock, cold weather, lack of maneuverability for its equipment, and a lack of space in which to store excavated rock until it could be used in the construction of residence foundations. Although all contributed to the delay, it was the rock which posed the greatest problem. The court, after reviewing the entire contract, concluded that the presence of rock had been anticipated by the parties, that Brookhaven had assumed the risk of removing the rock within the time constraints of the contract, and that rock removal was not a cause “beyond [the] Contractor’s control” as that phrase was understood by the parties.

In construing a contract, the intention of the parties must be ascertained from the entire agreement, taking into consideration the surrounding circumstances. Mather Estate, 410 Pa. 361, 366-367, 189 A.2d 586, 589 (1963). In the instant case, Brookhaven’s president conceded that his site inspection had disclosed a steep terrain, heavily wooded, with outcroppings of rock and boulders, and that he had been aware that rock would be encountered. Therefore, there was included in the written contract a specific provision establishing the manner in which the contractor was to be compensated for rock excavation. This evidence, coupled with the fact that the agreement did not expressly recognize excavation of rock as an excuse for delay, confirms the trial court’s finding that neither the presence of rock nor the need to excavate it was intended by the parties to excuse performance within the times required by the agreement. The court could properly conclude, therefore, that the presence of rock was not a “cause beyond the Contractor’s control” within the meaning of paragraph 16.

Brookhaven also argued that delay had been caused by minor errors in LeGare’s site plan and because of LeGare’s post-contract request that trees in close proximity to the building site be preserved. The trial court found, however, that the errors in the plan had been corrected early during construction and had not contributed causally to Brookha-ven’s late performance. Similarly, the court found that the inconvenience to the contractor caused by LeGare’s desire to retain certain trees was de minimus and was not responsible for a year’s delay in completing construction. In this respect, the court found that an intent to retain trees had been expressed pre-contract by LeGare and had been included in the architect’s plans. Thus, Brookhaven had been aware of LeGare’s desire to preserve as many trees as possible prior to executing the agreement. The precise trees to be retained were in fact left to Brookhaven’s discretion, and decisions with respect thereto were made according to the needs of its subcontractor. The evidence supports the court’s findings, and they will not be disturbed.

The court found that as a result of delay caused by Brookhaven, LeGare had sustained damages as follows:

Increased cost for paving and curbing $ 3,650.31
Increased cost of landscaping 1,028.43
Increased construction costs 21,266.28
Increased cost of utility installation 27,470.52
$53,415.54

Brookhaven contends that the evidence failed to support the trial court’s finding that the increased cost of utility installation had been caused by Brookhaven’s delay in construction. Our review of the record compels us to agree with this contention.

The utility installation was to be performed by New Enterprises Construction Co., which had a separate contract with LeGare. Although it had been initially contemplated that the work of Brookhaven and New Enterprises would be done simultaneously, it was subsequently agreed that the work of New Enterprises could better be done after Brookhaven’s work was complete. It was agreed, therefore, that New Enterprises would commence work after four units had been completed and within ten days after receiving notice from the owner. When LeGare called upon New Enterprises to perform, the latter, in breach of its contract, failed or refused to perform. Therefore, LeGare was compelled to have the work of utility installation done by another at an increased price. Although the evidence demonstrated that LeGare’s notice to New Enterprises to begin work was later than had been anticipated, there was no evidence that New Enterprises’ failure to perform its contract with LeGare had been caused by Brookhaven’s delay in completing its work. The court en banc recognized this deficiency in LeGare’s proof but concluded that the trial court could nevertheless infer from the total circumstances that Brookhaven’s delay may have contributed to the failure of New Enterprises to perform. This was error. There was neither direct nor circumstantial evidence from which the fact finder could properly find that Brook-haven had been responsible for New Enterprises’ breach of contract. See and compare: Macchia v. Megow, 355 Pa. 565, 50 A.2d 314 (1947). The damages recoverable for that breach may be recoverable from New Enterprises, but the record in this case does not permit recovery of those damages from Brookhaven. LeGare’s recovery in this action, therefore, must be reduced by $27,470.52.

LeGare also failed to show with reasonable certainty that it had sustained a loss of profits because the marketing of residential units had been delayed for a year. The record discloses many possible explanations for LeGare’s inability to market the project as planned. Thus, the trial court could properly conclude, as it did, that a claim for anticipated profits was entirely speculative and unsupported by credible evidence.

The judgment in favor of Brookhaven is affirmed. The judgment in favor of LeGare is reduced to $25,945.02 and as so modified is affirmed.

POPOVICH, J., files a concurring and dissenting statement.

POPOVICH, Judge,

concurring and dissenting:

I dissent to the majority’s reduction of the judgment which was entered in favor of LeGare, Incorporated, and would affirm on the basis of the trial court’s opinion.

      . LeGare's effort to prove a causal connection rested upon hearsay evidence which, upon objection, the trial court properly excluded. The only other reference to this aspect of LeGare’s claim appeared in a letter prepared by its counsel in which he made the bald and unsupported accusation that because of Brookhaven’s delay, LeGare “has found it necessary to obtain the services of another contractor to install sewer lines.”


author: WIEAND, Judge:

text:
    487 A.2d 364
    COMMONWEALTH of Pennsylvania v. Mario GENOVESE Appeal of NEP COMMUNICATIONS, INC., t/d/b/a WNEP-TV News
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1984.
    Filed Jan. 9, 1985.

      Bruce Morgan, Scranton, for appellant.

      Charles W. Johns, Philadelphia, for Commonwealth, ap-pellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WIEAND, Judge:

Can a trial court temporarily restrain the news media from publishing, broadcasting or otherwise disseminating the names and addresses of jurors summoned or selected to hear a homicide case? NEP Communications, Inc., t/a WNEP-TV News (WNEP), the appellant herein, contends that the order entered during the trial of Mario Genovese was entered without cause and constituted an unconstitutional prior restraint upon its right to publish. We are constrained to agree; and, therefore, we reverse.

Mario Genovese, a Lackawanna County physician, was charged with murdering his wife. On the ninth day of trial in October, 1983, defense counsel became seriously ill and was hospitalized. The court declared a mistrial. Prior to retrial, the Court of Common Pleas granted a change of venire; but its order was reversed by the Supreme Court. Jury selection for the second trial commenced on September 4, 1984. The initial pool of venirepersons consisted of forty-three residents of Lackawanna County. Following general instructions to the prospective jurors, the trial judge said:

[T]he media will appreciate that we have not released the name of any individual juror, and we order that you not use the names, for publication purposes, the names of any of these jurors during this time. Later on during the trial, the names of the jurors will be released.

The judge ordered further that “no person or any representative of the news media [shall] contact in any way any prospective juror or anyone who should be selected in this matter.” Defense counsel requested sequestration of the jury, but his request was denied because of the expense that sequestration would entail. As voir dire examination of the prospective jurors proceeded, each stated his or her name in open court, with members of the news media present.

Following a noon recess, the trial judge stated the reasons for his earlier order as follows:

Our experience has been that in major cases too many people have no regard for justice. We want to protect jurors or their families from unnecessary harassment or calls at their home____ The Court feels [that] if they did not impose this type of a protective order, it would otherwise be necessary to sequester the jurors. Of course, we would be then responsible for a lot of additional costs which we feel is unnecessary. It’s very expensive. In addition ..., it’s a tremendous drain on the jurors themselves.

The trial judge observed further that voir dire would not be closed and that the news media would be permitted to receive the names of all the jurors so long as they did not print those names until permitted to do so by the court. Later, the court granted the request of a local television station to interview jurors who had been excused but admonished that neither the names of those excused jurors nor the interviews themselves could be published or broadcast until a jury panel had been selected. This was done “so as to avoid any contamination of people who [sic] we may call in as prospective jurors.”

On the following morning, voir dire examination was suspended when WNEP requested the court to reconsider its order with respect to the names of jurors disclosed in open court. No evidence was received. With respect to the names of jurors who had been excused, the trial judge expressed a concern that if they were interviewed before a jury was empanelled they might contaminate other prospective jurors. With respect to jurors already selected and sworn, he said:

I don’t want jurors to be harassed at their residences which we’ve had in prior cases in this county; telephone calls by survey organizations or people or some clown contacting them and harassing them in any way.

The trial judge summarized:

I take this measure because I find that there are compelling reasons to issue such a protective order. They are to obtain a fair trial for the Commonwealth and for the defendant. I find further that as an alternative, the only alternative that you suggested is the sequestration of a jury. I don’t find that in these circumstances that to be a reasonable alternative in light of the cost that would be involved and in light of the inconvenience intended [sic] with sequestration. I further am fully aware of the fact and fully recognize the great community interest here involved in these proceedings. I fully recognize your rights to be in this courtroom and to object and to have your objections entertained. I think that’s sufficient.

A written memorandum and amended order, dated September 5, was issued the following morning and stated that restraints on publication of names and contact with excused jurors were to be dissolved as soon as the trial jury had been empanelled. With respect to the trial jurors and alternates empanelled, however, the restraint was to continue until the jury retired to deliberate upon its verdict.

WNEP filed a notice of appeal to the Superior Court, petitioned for a supersedeas and moved for an expedited hearing. A supersedeas was denied, but an expedited hearing was granted.

The order of the trial court was a restraining order. It expressly restrained WNEP and other news media from publishing information obtained during a public trial. Pa.R. A.P. 501 provides that “any party who is aggrieved by an appealable order ... may appeal therefrom.” WNEP was “aggrieved by the restraining order of the court and, therefore, was entitled to appeal.” See also: Pa.R.A.P. 311(a)(4).

The criminal trial has now been completed, and a verdict has been returned. The restraining order, therefore, has been dissolved by its own terms. Such an order is technically moot; the restraint on the news media has been terminated. Nevertheless, an appellate court may hear and decide an issue which is technically moot where it is “capable of repetition yet evading review.” Commonwealth v. Buehl, 316 Pa.Super. 215, 220, 462 A.2d 1316, 1319 (1983), quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, 316 (1911). See also: Commonwealth v. Joint Bargaining Committee for the Pennsylvania Social Services Union, 484 Pa. 175, 179, 398 A.2d 1001, 1003 (1979); Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance Co., 335 Pa.Super. 493, 498, 485 A.2d 1, 3 (1984). “[A] case is ‘capable of repetition, yet evading review when (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.’ ” Commonwealth v. Buehl, supra, 316 Pa.Superior Ct. at 220, 462 A.2d at 1319, quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350, 353 (1975). See also: Sherrer v. Lamb, 319 Pa.Super. 290, 296, 466 A.2d 163, 166 (1983). It is conceded that the amended order restraining publication of jurors’ names during voir dire and trial is in its duration too brief to be fully litigated prior to expiration. The time frame thereof is too narrow for full appellate review before it expires. See, e.g.: Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973, 981 (1980) (more often than not criminal trials are of too short duration to outlive full appellate review). Cf. In Re Remley, 324 Pa.Super. 163, 166, 471 A.2d 514, 515 (1984) (90 days too short for review in involuntary commitment cases). It also would be reasonable to expect that WNEP will be subjected to similar restraints in the future. See: Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 103 S.Ct. 3524, 77 L.Ed.2d 1284 (1983) (per Brennan, J., as Circuit Justice) (where a similar prior restraint was imposed upon the media in a murder ease in neighboring Luzerne County).

“ ‘Any system of prior restraints of expression comes to this [or any] Court bearing a heavy presumption against its constitutional validity;’ ” the State “ ‘carries a heavy burden of showing justification for the imposition of such a restraint.’ ” New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822, 824-825 (1971) (per curiam), quoting Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1, 5-6 (1971). See also: Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). As a general rule, the press is free to publish that which transpires during a public hearing and cannot be subjected to prior restraint with respect thereto. Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 311, 97 S.Ct. 1045, 1047, 51 L.Ed.2d 355, 358 (1977). That which occurs in a public courtroom is public property. Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600, 613 (1966); Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546, 1551 (1947). Absent a state interest of the highest order, the state may not prevent or punish the publication of truthful information of public significance which has been lawfully obtained. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 101-102, 99 S.Ct. 2667, 2670, 61 L.Ed.2d 399, 404 (1979). “[E]ven a short-lived ‘gag’ order in a case of widespread, concern to the. community constitutes a substantial prior restraint and causes irreparable injury to First Amendment interests as long as it remains in effect.” Capital Cities Media, Inc. v. Toole, supra 463 U.S. at 1304, 103 S.Ct. at 3525, 77 L.Ed.2d at 1287. Thus, even a temporary delay in publication which causes no serious injury can be tolerated only under the most compelling circumstances. See: Nebraska Press Association v. Stuart, 427 U.S. 539, 560-561, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683, 698 (1976).

In an appropriate case, of course, the State may have a compelling interest to keep jury information confidential in order to guarantee the defendant’s right to a fair trial or the juror’s right to privacy. However, “[a]s for the State’s concern for the jurors’ privacy, ... restrictions on the publication of information that would have been available to any member of the public who attended an open proceeding in a criminal trial” will not be permitted. Capital Cities Media, Inc. v. Toole, supra 463 U.S. at 1306, 103 S.Ct. at 3526, 77 L.Ed.2d at 1288.

Whether prior restraint is necessary to guarantee a fair trial requires an examination of the evidence before the trial court to determine (a) the nature and extent of the evil to be avoided, (b) whether other measures were likely to mitigate the effects of unrestrained publicity, and (c) how effective a restraining order was to prevent the threatened danger. Nebraska Press Association v. Stuart, supra 427 U.S. at 562, 96 S.Ct. at 2804, 49 L.Ed.2d at 699. A prior restraint, “one of the most extraordinary remedies known to our jurisprudence,” id., may not be based on assertion or conjecture but must be supported in all respects by evidence. A court must make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance sought to be prohibited and then balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 842-843, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1, 13 (1978). Evidence must be presented during a hearing at which all parties are given an opportunity to participate. Capital Cities Media, Inc. v. Toole, 463 U.S. supra at 1307, 103 S.Ct. at 3527, 77 L.Ed.2d at 1289.

The Supreme Court of Iowa, in Des Moines Register and Tribune Co. v. Osmundson, 248 N.W.2d 493 (Iowa 1976) considered an order similar to that entered by the trial court in the instant case. There, the trial court had prohibited disclosure of the names of the jurors during a trial for the murder of a motorcycle gang member. The trial court had concluded, after hearing, that publicity “created a danger that influences might be brought to bear on jurors during the trial if their identifies were known,” and that “[sequestration of the jury is not feasible or practical because of family and business commitments of the jurors who would have been available for selection” and because “the cost of sequestration ... is an expense which the Court in its discretion determines * * * is not desirable in this case.” Id. at 498. The Iowa Supreme Court, having examined the evidence, found it “far short of the kind of showing ... necessary to justify a prior restraint.” The court said:

First, no evidence was adduced to show any danger existed that the trial jurors might be exposed to intimidation during trial. None of them indicated any such apprehension other than vague and undifferentiated disapprobation and suspicion of the Chosen New motorcycle gang or of any group which rides motorcycles. To the limited extent that any apprehension was expressed during voir dire it was founded in unsupported although probably sincere speculation that a not guilty verdict might result in post-verdict harassment. However, there was simply no basis in the record for concluding any danger existed to the jurors or to the parties’ rights to fair trial if the identities of trial jurors were known by the public prior to discharge of the jury after verdict. Therefore the first element under the Stuart test, demonstrating the substantiality of the harm sought to be avoided, was not satisfied.

Id. at 500 (emphasis in original).

Similarly, the record in the instant case does not support the trial court’s conclusion that jurors would be harassed during trial if their names were revealed to the public. Only by conjecture and speculation can we surmise from this record that jurors would be at risk to outside intimidation. Similarly, there is no evidentiary basis on which to conclude that an order of prior restraint was necessary in order to insure the empanelling of an impartial jury. There was no evidence in this case that a fair trial would be impaired or the privacy of the individual jurors invaded in the absence of an order restraining dissemination of the jurors’ names.

Moreover, if it had been necessary to protect the jurors from harassment, the most effective way to insulate them during the trial would have been to sequester them. Neither the temporary inconvenience to the jurors and their families nor the cost of sequestration was an adequate reason to impose a prior restraint upon the freedom of the press to publish information obtained during a public trial. In order to justify a prior restraint there must be a finding, supported by record evidence, that alternative measures are inadequate to protect the jurors and guarantee a fair trial by an impartial jury. Nebraska Press Association v. Stuart, supra, 427 U.S. at 565, 96 S.Ct. at 2806, 49 L.Ed.2d at 701. In the instant case there was no such finding. Moreover, there was no evidence to support such a finding. Restraint of the media was neither the only nor the best restrictive means available to protect the jurors from harassment and to guarantee a fair trial.

Finally, the law is clear that “once a public hearing ha[s] been held, what transpire[s] there [cannot] be subject to prior restraint.” Nebraska Press Association v. Stuart, supra at 568, 96 S.Ct. at 2807, 49 L.Ed.2d at 703. Anyone bent upon intimidating jurors in this case could readily have ascertained their identity by the simple expedient of being present in the courtroom during voir dire and jury selection. The court’s order restraining the news media, although it may have placed limitations upon the public’s right to know the identity of the jurors, was certainly not effective to protect them from intimidation. It is even more difficult to comprehend a good purpose to be achieved by an order restraining dissemination of the names of members of the panel who had been examined and excused from service. The mere disclosure of their names could have had no effect on the defendant’s right to a fair trial.

We are constrained to hold, therefore, that the order preventing publication or other dissemination of the names of jurors in this case was an invalid prior restraint which cannot be permitted to stand.

WNEP argues that the court’s order prohibiting the media from interviewing jurors was also an unconstitutional prior restraint. The premise of this assertion, however, is flawed. Enjoining the press from interviewing or otherwise contacting jurors is not a prior restraint. “A prior restraint prevents publication of information or material in the possession of the press____” Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 499, 387 A.2d 425, 432 (1978), appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877 (1979). Court orders which prevent the media neither “from publishing any information in their possession [n]or from writing whatever they please[ ] ... [do] not constitute a prior restraint upon publication.” Id., 478 Pa. at 499-500, 387 A.2d at 433 (footnote omitted). Thus, to the extent that the amended order merely prevented WNEP temporarily from interviewing or contacting either prospective or em-panelled jurors, it effected no prior restraint. Even so, the record is totally devoid of evidence that would have supported the entry of a restraining order against WNEP to prevent its conducting interviews with jurors. In the absence of some evidence to support what is quite clearly a restraining order, the order cannot stand. It cannot be presumed that WNEP intended to commit a criminal act or a civil wrong. Similarly, it was not shown that such a court order was necessary to protect the jurors or to guarantee a fair trial. Therefore, the order must be deemed an abuse of discretion and subject to reversal.

The order restraining the news media is reversed.

HESTER, J., files a dissenting statement.

HESTER, Judge, dissenting:

I respectfully dissent.

      . Jury selection was completed on September 6, at which time this part of the restraining order was terminated.

      . The trial judge refused a request on September 7 to reconsider his amended order.


author: McEWEN, Judge:

text:
    487 A.2d 369
    Matthew Todd HELINEK, Appellant, v. Frank J. HELINEK, Jr., Delva Associates, Inc., Ronald Landis and Edwin S. Bechtel, Inc. Matthew Todd HELINEK, Appellee v. Frank J. HELINEK, Jr., Delva Associates, Inc., Ronald Landis and Edwin S. Bechtel, Inc. Appeal of Ronald LANDIS and Edwin S. Bechtel, Inc.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1984.
    Filed Jan. 9, 1985.
    Petition for Allowance of Appeal Denied August 2, 1985.

      William H. Kinkhead, Philadelphia, for appellant (at 1306), and appellee (at 1391).
    Richard N. Shapiro, Norristown, for appellant (at 1391).
    Richard T. Abell, Ambler, for appellees (at 1306).
    Before McEWEN, DEL SOLE and POPOVICH, JJ.
   McEWEN, Judge:

Appellant, Matthew Todd Helinek, was a passenger in a car owned by his employer, Delva Associates, Inc., and driven by his father, Frank J. Helinek, an officer/employee of Delva Associates, when the car collided with a truck owned by Edwin S. Bechtel, Inc. and operated by its employee, Ronald Landis. Matthew Helinek instituted suit against Frank J. Helinek, Delva Associates, Ronald Landis and Edwin S. Bechtel, Inc. The trial court, after reviewing the pleadings, depositions, answers to interrogatories and admissions of record, granted summary judgment in favor of Delva Associates and Frank J. Helinek on the ground that suit against them was barred by Section 205 of the Workmen’s Compensation Act. The court concluded that Section 205 of the Act barred suit against these two defendants based upon the court’s finding that Matthew Helinek had been injured while acting within the course and scope of his employment with Delva Associates. Appeals from the order granting summary judgment were undertaken by Edwin S. Bechtel, Inc., Ronald Landis and Matthew Helinek and consolidated by this Court. We now reverse the order entering judgment and remand for further proceedings.

“A motion for summary judgment may properly be granted only ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Pa.R.C.P. 1035(b). See also Rybas v. Wapner, 311 Pa.Super. 50, 53, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 128, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, 481-82, 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra, 313 Pa.Super. at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1971).” Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 141, 476 A.2d 928, 930-931 (1984). Accord Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 202-04, 412 A.2d 466, 468-469 (1979); Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 231, 464 A.2d 1313, 1316 (1983).

It is important to note, moreover, that ‘[a]ll doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judg-ment____ A party should not be deprived of an adequate opportunity to fully develop his case by witnesses and a trial, when the issues involved make such procedure the appropriate one____ It is often the case that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts, what the intention of the parties was as shown by the facts____ Under such circumstances the case is not one to be decided by the Trial Judge on a motion for summary judgment.’ ” . Christman v. Dravo Corporation, 319 Pa.Super. 378, 380, 466 A.2d 209, 210 (1983) quoting Wilk v. Haus, supra, 313 Pa.Super. at 482, 460 A.2d at 290 (emphasis supplied). The expressions of this Court in both Christman and Wilk are, of course, basic to our decision of this appeal and it is appropriate to note that the eminent Judge William T. Nicholas did not at the time of his decision have the benefit of those opinions for his consideration.

The pleadings, depositions, affidavits, answers to interrogatories and admissions of record in the instant case establish the following undisputed facts: (1) Matthew Todd Helinek was a passenger in a car owned by his employer and operated by his father, a co-employee, when he was injured; (2) Frank J. Helinek was transporting Matthew Helinek to the home of his brother and co-employee so that he could be transported to the job site in another company car along with other co-employees; (3) nine days prior to the accident the father had begun the practice of transporting Matthew Helinek from the family home where they both resided to his brother’s home each morning due to the revocation of Matthew’s driving privileges; (4) Frank J. Helinek was President of Delva Associates and Matthew Helinek was employed by Delva Associates as a laborer at a weekly salary of $100.00. Based upon these undisputed facts and in reliance upon the majority opinion of this Court in Sylvester v. Peruso, 286 Pa.Super. 225, 428 A.2d 653 (1981), the trial court found that Matthew Helinek was acting within the course and scope of his employment at the time of the accident.

“ ‘As a general rule the act of going to or returning from work does not constitute a furtherance of the employer’s business. As such, an employee so engaged is not engaged in the course of his employment. Susman v. Kaufmann’s Department Store, 182 Pa.Super. 467, 128 A.2d 173 (1957).’ Sylvester v. Peruso, supra 286 Pa.Super. at 227, 428 A.2d at 655. Accord: Pittsburgh Hyatt House, Inc. v. Workmen’s Compensation Appeal Board, 62 Pa.Cmwlth. 556, 559, 437 A.2d 461, 463 (1981); LoPresti v. Workmen’s Compensation Appeal Board, 35 Pa.Cmwlth. 7, 11, 384 A.2d 1017, 1019 (1978); Workmen’s Compensation Appeal Board v. DelCimmuto, 23 Pa.Cmwlth. 43, 45-46, 350 A.2d 459, 460 (1976). See also: Plummer v. Wesner, 217 Pa.Super. 24, 26-27, 268 A.2d 144, 145 (1970) allocatur denied August 24, 1970. ‘This general rule is subject to an exception if the contract of employment includes transportation to and from work, or if the employe does not have a fixed place of work, or if he is on a special mission for the employer.’ Schick v. Newspaper Guild of Greater Philadelphia, 25 Pa.Cmwlth. 108, 111, 358 A.2d 127, 129 (1976), quoting Newman v. Congregation of Mercy and Truth, 196 Pa.Super. 350, 353, 175 A.2d 160, 162 (1961). Accord: Setley v. Workmen’s Compensation Board, 69 Pa.Cmwlth. 241, 243-45, 451 A.2d 10, 11 (1982); Pittsburgh Hyatt House, Inc. v. Workmen’s Compensation Appeal Board, supra, 62 Pa.Cmwlth. at 559, 437 A.2d at 463; Davis v. Workmen’s Compensation Appeal Board, 41 Pa.Cmwlth. 262, 265, 398 A.2d 1105, 1106 (1979); North American Rockwell Corporation v. Workmen’s Compensation Appeal Board, 21 Pa.Cmwlth. 437, 442, 346 A.2d 379, 382 (1975). See also: Crouse v. Workmen’s Compensation Appeal Board, 57 Pa.Cmwlth. 430, 435, 426 A.2d 749, 751 (1981).” Hall v. Midland Insurance Co., 320 Pa.Super. 281, 285-86, 467 A.2d 324, 327 (1983).

The question of whether Matthew Helinek was in the course of his employment when injured is, of course, a question of law to be determined on the basis of the facts of record. Thompson v. Anthony Crane Rental, Inc., 325 Pa.Super. 386, 393, 473 A.2d 120, 124 (1984); English v. Lehigh County Authority, 286 Pa.Super. 312, 320-22, 428 A.2d 1343, 1348-1349 (1981); Davis v. Workmen’s Compensation Board, supra, 41 Pa.Cmwlth. at 263, 398 A.2d at 1106. In passing upon a motion for summary judgment, however, the court is required to give the non-moving party the benefit of all reasonable inferences which may be drawn from the facts. Spain v. Vicente, 315 Pa.Super. 135, 138, 461 A.2d 833, 835 (1983); English v. Lehigh County Authority, supra.

There is no evidence of record which would establish that Matthew Helinek’s oral contract of employment included transportation to and from work. In fact, no such transportation had been provided until nine days prior to the accident when his driving privileges were revoked. Matthew was on the first part of his journey to his fixed place of work and was not on a special mission for his employer at the time of the accident. There is, in fact, no evidence of record which would establish that Matthew Helinek was furthering the business of his employer at the time of the accident. Rather, when viewed in the light most favorable to the non-moving party, the facts of record give rise to an inference that Frank J. Helinek was acting as a parent rather than as an employee of Delva Associates in providing transportation from the family home to Matthew’s brother’s home. Moreover, the facts when viewed in the appropriate light, support an inference that Matthew was not acting in furtherance of the affairs of his employer at the time of the accident and would not therefore be entitled to workmen’s compensation benefit, nor be precluded from a common law action against Frank J. Helinek or Delva Associates, Inc. See and compare Workmen’s Compensation Appeal Board v. Borough of Plum, 20 Pa. Cmwlth. 35, 340 A.2d 637 (1975).

As a result of our determination that this case was “not among the ‘clearest of cases’ ripe for summary judgment”, see Huffman v. Aetna Life and Casualty Co., 337 Pa.Super. 274, 277, 486 A.2d 1330, 1331 (1984), we reverse the order granting summary judgment in favor of Delva Associates, Inc. and Frank J. Helinek and remand for further proceedings.

Jurisdiction relinquished.

      . Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 72.


author: OLSZEWSKI, Judge:

text:
    487 A.2d 373
    ROBINSON PROTECTIVE ALARM COMPANY v. BOLGER & PICKER, Appellee/Cross-appellant (Appellant at No. 1123) v. Richard ROBINSON and Continental Bank, Appellant/Cross-appellee Appeal of CONTINENTAL BANK (at No. 1040)
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1984.
    Filed Jan. 9, 1985.
    Petition for Allowance of Appeal Granted for Appellant June 14, 1985.
    Petition for Allowance of Appeal Denied for Appellee June 14, 1985.

      Ronald H. Surkin, Philadelphia, for appellant (at 1040) and for appellee (at 1123).
    Richard M. Jordan, Philadelphia, for appellant (at 1123) and for appellee (at 1040).
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This case is a subplot in the story of Richard Robinson, a onetime partner in the law firm of Bolger & Picker who, in 1978 and 1979, embezzled funds from an escrow account of the law firm and converted checks belonging to clients. This action deals solely with the embezzlement of funds held for Robinson Protective Alarm Company. The question before us is who shall bear the loss.

Each of the appellants, Bolger & Picker and Continental Bank, contends that the other should bear the loss. The trial court held that the loss should fall on the law firm to the extent of $206,247.75 and on Continental to the extent of $140,000. Both appeal.

The facts are these: Robinson Protective was involved in a tax dispute with the City of Philadelphia, and engaged Bolger & Picker to represent the company. The disputed tax was to go into an escrow account under the control of Bolger & Picker and the tax due would be paid from this account when the parties settled. The account at Continental was opened in the name of “Bolger & Picker, Escrow Agents,” and three partners, including Richard Robinson, signed a signature card enabling any one partner to withdraw funds. Continental was not a party to the escrow agreement and knew nothing of its terms. Lower court opinion at 4.

Robinson Protective paid approximately $50,000 per year into this account from 1972 to 1978; the money was kept in a passbook savings account and in certificates of deposit in the name of “Bolger & Picker, Escrow Agents.”

Richard Robinson, on April 5,1978, requested Continental to redeem a certificate of deposit and put the proceeds into the savings account. On April 6, he directed Continental to draw a check for $100,000 on the account, payable to the order of “BEDCO.” Lower court opinion at 16. The bank issued a treasurer’s check as directed and delivered it to Richard Robinson. On May 4, 1978, at Richard Robinson’s request, the bank redeemed a second certificate, issued a check for $140,000 payable to Blythe, Eastman, Dillon and Company, and delivered it to him. On January 2, 1979, Continental redeemed a third certificate, and issued and delivered a check for $106,247.75, payable to Bolger & Picker, Escrow Agents, again at Richard Robinson’s request. Richard Robinson used these checks for his own purposes.

The funds for the first check came from the savings account, which was composed in part of the proceeds of a certificate of deposit, No. 3-91891, owned by “Bolger & Picker, Escrow Agents.” The funds for the second check came from a certificate of deposit, No. 3-94855, owned by “Bolger & Picker, Escrow Agents.” The funds for the third check came from a certificate of deposit, No. 3-99924, owned by “Bolger & Picker, Escrow Agents.” None were endorsed, as required by bank rules. Lower court opinion at 17-19.

The trial court initially held the bank liable for all three withdrawals, but on the bank’s exceptions, held that Continental was liable for only $140,000, the amount of the second certificate. The court based its holding on 13 Pa.C.S. § 3419 (Purdon’s 1984 Pamphlet), stating that the bank had not paid the certificate in accordance with reasonable commercial standards, and thus was liable for its value. The lower court stated:

On May 4, 1984, Continental issued a check in the amount of $140,000 payable to Blythe, Eastman, Dillon & Co., which check bore a typed notation indicating that it represented part of the proceeds of certificate deposit No. 3-94555 in the name of Bolger & Picker, Escrow Agents. It also bore a handwritten notation “A/C Richard Robinson 76090-2.” There is no evidence as to who placed the written notation on the check or when. This Certificate was not endorsed. It is clear that the bank was alerted to the fact that the certificate was in the name of an escrow account and that such funds were being paid to an investment company. No investigation was made by the bank before issuing the check. Such negligence is not consonant with reasonable commercial standards.

Lower court opinion at 30.

In this appeal, each party makes numerous arguments that the other should bear the entire loss. Given the complexity of the situation, we begin our analysis with the broadest assertion — the bank’s claim that it has no liability whatsoever.

The Uniform Fiduciaries Act

The bank argues first that it is completely shielded from all liability for redeeming the certificates, under any theory, because of 7 Pa.S. § 6361 (Purdon’s 1984-85 Supp.). This section of the Uniform Fiduciaries Act states:

A person who, in good faith, pays or transfers to a fiduciary any money or other property, which the fiduciary as such is authorized to receive, is not responsible for the proper application thereof by the fiduciary, and any right or title acquired from the fiduciary in consideration of such payment or transfer is not invalid in consequence of a misapplication by the fiduciary.

7 Pa.S. § 6361. The Act, if applicable, would relieve the bank of liability. The court below, however, held that the UFA did not apply to this case. Lower court opinion at 33.

The key to determining the applicability of the Act lies in the statute and in the intent of its drafters. The UFA’s purpose is:

[To] establish uniform and definite rules in place of the diverse and indefinite rules now prevailing as to “constructive notice” of breaches of fiduciary obligations. In some cases there should be no liability in the absence of actual knowledge or bad faith; in others there should be action at peril. In none of the situations here treated is the standard of due care or negligence made the test.

7A Uniform Laws Annotated 128 (1978).

The Supreme Court held in Davis v. Pennsylvania Company for Insurances on Lives and Granting Annuities, 337 Pa. 456, 12 A.2d 66 (1940), that the bank’s responsibility in a case such as this is to act honestly:

At what point does negligence cease and bad faith begin? The distinction between them is that bad faith or dishonesty, is, unlike negligence, wilful. The mere failure to make inquiry, even though there be suspicious circumstances does not constitute bad faith unless such failure is due to the deliberate desire to evade knowledge because of a belief or fear that inquiry would disclose a vice or defect in the transaction — that is to say when there is an intentional closing of the eyes or stopping of the ears.

Id., 337 Pa. at 460, 12 A.2d at 69 (citation omitted). In Davis, the fiduciary was a trustee and the plaintiffs the beneficiaries of a trust. The trustee sold trust property through the bank, had the proceeds credited to the trust account, and then withdrew the proceeds for his own use. The Court refused to hold the bank liable, stating that there were “no facts or circumstánces which should have made defendant suspicious.” Id., 337 Pa. at 461, 12 A.2d at 69.

This Court held in Gordon v. Hamilton Savings and Loan Ass’n., 207 Pa.Super. 231, 217 A.2d 843 (1966), that where the administrator of an estate had embezzled savings from an estate account, the bank could not be held liable: “The development of our statutory law has been directed toward placing the responsibility for assets held in a fiduciary capacity directly on the fiduciary, where it rightly belongs, and relieving those who deal with fiduciaries from responsibility.” Id., 207 Pa.Superior Ct. at 235, 217 A.2d at 845.

It is obvious that the Act addresses the concepts of both “negligence” and “bad faith.” From the drafters’ comments and the interpretation given the Act by our courts, we conclude that the Act applies when the essence of the complaint is that the defendant has paid money to someone who was authorized to receive it, but who later misapplied it. The Act shields banks from liability when they act honestly in fiduciary relationships, but not when they wink at obvious irregularities.

This is so that the wheels of commerce may roll easily. If banks had a duty, for their own safety, to divine the purpose of every fiduciary’s transaction, expensive and time-consuming exercises in futility would result, since most fiduciary dealings are honest. Additionally, it would seem reasonable to assume that a determined embezzler could falsify the accreditation needed to pass any cursory investigation instituted by a bank.

Although the essence of the law firm’s complaint is that the bank paid certificates of deposit to an authorized person who later misapplied the funds, its complaints aver that the bank is liable in indemnity or contribution, and that the bank breached its contracts with the law firm. The Uniform Fiduciaries Act was not designed to supersede contract law. The lower court correctly held that in this case, with the causes of action before the court, the UFA did not apply.

The Theory of Liability

The UFA protects banks only in actions for negligence. The lower court found for the bank on two of the certificates. Given that the law firm did not plead the bank was liable in negligence, the law firm must have pleaded and proved some other cause of action for us to affirm the relief granted. The law firm originally sued for indemnity or contribution, and breach of contract. The trespass and assumpsit actions were based on the bank’s alleged breach of the escrow agreement, and the breach of contract was based on the terms of the certificates of deposit. We address these issues in order.

The court below held that the bank, having never received a copy of the escrow agreement, was not liable for failing to live up to its terms. Lower court opinion at 28. When the trial court has made a finding of fact, we will not overturn it when evidence in the record supports the finding. Spatz v. Nascone, 283 Pa.Super. 517, 424 A.2d 929 (1981). We agree with the trial court’s determination that Continental did not know of the escrow agreement and therefore had no duty to conform to its terms; we affirm the trial court’s holding that no liability for indemnity or contribution arises from the escrow agreement. Likewise, there was no breach of contractual duties arising from the escrow agreement where the bank knew nothing of the agreement.

The bank’s liability, then, must arise from its breach of the terms of the certificates. Before we address the terms of the contract, we must deal with the bank’s contention that the trial court improperly permitted the law firm to amend its pleadings, on the eve of trial, to state this theory of liability.

A trial court may allow amendment at any time, under Pa.R.Civ.P. 1033. Whether amendment should be allowed is discretionary, but the court should not allow it when surprise or prejudice will result. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975); Berman v. Herrick, 424 Pa. 490, 227 A.2d 840 (1967).

The bank claims it was prejudiced because it had not deposed Richard Robinson as to his customary practices in redeeming certificates, and because a witness it would have called otherwise was not available when the new theory was argued. Appellant’s brief at 36. The bank argues that it would have submitted evidence on a course of dealing between Richard Robinson and the bank that would have established that no breach of the terms of the certificates occurred. The law firm contends that the evidence would not have been admissible. Appellee/Cross-appellant’s brief at 45.

Our examination of the pleadings indicates that the law firm’s claim of breach of the escrow agreement afforded the bank adequate opportunity to prepare for the theory proposed in the amended complaint. The escrow agreement, being a contract, was subject to the same legal arguments about “course of dealing” that the bank states it would have made had it known of the theory premising liability on breach of terms of the certificates. We find no prejudice.

With respect to the alleged breach of the terms of the certificates, the contract of redemption on the face of the certificates clearly states that they “may be redeemed on presentation and surrender duly endorsed.” Record at 743a, 745a. We think that this requires endorsement before redemption. The bank failed to require endorsement before redemption. There was a breach.

The bank, however, is protected in part from liability for its breach by 13 Pa.C.S. § 3419(c). This section of the UCC states:

§ 3419. Conversion of instrument; innocent representative
(c) Limitation on liability of representative. — Subject to the provisions of this title concerning restrictive endorsements a representative, including a depositary or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands.

13 Pa.C.S. § 3419(c).

In our opinion, this shields the bank from liability in breach of contract claims when it acts in accordance with reasonable commercial standards. Since the bank acted reasonably in redeeming the first certificate to the savings account and the third in a check to its owner, it is shielded with respect to those two items. It is not shielded with respect to certificate 3-94855, and is liable in contract to the law firm for its value.

Judgment affirmed.

McEWEN, J., concurs in the result.

      . Richard Robinson, a former partner of Bolger & Picker, is not related to Robinson Protective Alarm. Initially, Robinson Protective sued Bolger & Picker for the escrow funds. Bolger & Picker’s insurer paid the amount, $346,247.75, and Bolger & Picker sued Continental for indemnity or contribution. Continental joined Richard Robinson, who has also been sued by Bolger & Picker, and cross-claimed against Bolger & Picker for costs of litigation. Richard Robinson pleaded guilty to embezzlement and related charges before this case was tried, and took no part in this trial. He is without assets. Lower court opinion at 1-2.

      . The alarm company was required to relinquish control over the money in order to gain federal income tax benefits. Appellant’s brief at 7.

      . "BEDCO," or Blythe, Eastman, Dillon & Company, handles investments. Lower court opinion at 22.

      . Richard Robinson endorsed this check and deposited it in his personal account at First Pennsylvania Bank. N.T. 40.1.

      . Reproduced Record at 91a (Opinion of December 24, 1982).

      . The court issued an Opinion Sur Exceptions on March 1, 1983, holding Continental liable for the $140,000.

      . The statute provides:
      § 3419. Conversion of instrument; innocent representative
      (a) Acts constituting conversion. — An instrument is converted when:
      (1) a drawee to whom it delivered for acceptance refuses to return it on demand;
      (2) any person to whom it is delivered for payment refuses on demand either to pay it or to return it; or

        (3) it is paid on a forged instrument.
      (c) Limitation on liability of representative. — Subject to the provisions of this title concerning restrictive endorsements a representative, including a depositary or collecting bank, who has in good faith and in accordance with reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise beyond the amount of any proceeds remaining in his hands.

      . This was apparently a typographical error, as the certificate’s number is 3-94855. N.T. 140.2-141.2.

      . Each party lists numerous supposed errors by the trial court. We will deal with minor points in footnotes as much as possible, to conserve space.

      . When a bank pays money to a person who is not authorized to receive it, it would seem that an action for conversion under 13 Pa.C.S. § 3419 would lie, or that an action based in 13 Pa.C.S. § 4401 would be appropriate. The law firm has argued that § 4401 is an appropriate vehicle for liability here. Appellee/Cross-appellant’s Brief at 14. This is erroneous, since, even if we assume that certificates are "accounts” under the UCC, which we do not, the certificates were properly payable to "Bolger & Picker, Escrow Agents,” or an authorized agent. Richard Robinson was an authorized agent. What the firm really complains of is its former partner’s disposition of the funds once the bank paid them to him.

      . For comments on the drafters’ purposes, see Uniform Fiduciaries Act, 24 Colum.L.Rev. 661 (1924); Uniform Fiduciaries Act, 81 U.Pa.L. Rev. 863 (1933).

      . The law firm’s original complaint demanded indemnity or contribution, basing its claim generally on the escrow agreement. An amended complaint stated causes of action in trespass and assump-sit — trespass for indemnity and contribution, and assumpsit for breach of the escrow agreement. The law firm amended its pleadings again on the eve of trial, for breach of the terms of the certificates, and the bank bitterly contests the propriety of that amendment.

      . The court below stated that with a cause of action in contract, the UFA was inapplicable. Lower court opinion at 33.

      . Although Richard Robinson, in his deposition, stated that he had given the bank a copy of the agreement, the court discarded his testimony as not credible. Lower court opinion at 28.
      The law firm argues that if the escrow agreement was never given the bank, the bank nonetheless accepted the funds as a special deposit, which restricted its capacity to pay them out.
      Appellee/Cross-appellant’s brief at 21. The trial court found that the bank knew nothing of the agreement. We will not overturn that finding. The law firm argues additionally that there was an implied contract with the bank. We reject this theory for the same reason.

      . The Uniform Commercial Code permits a "course of dealing” to "give particular meaning to and supplement or qualify terms of an agreement.” 13 Pa.C.S. § 1205(d) (Purdon’s 1984 Pamphlet). Contracts may be read in the light of a course of conduct even when the terms are clear and unambiguous. Campbell v. Hostetter Farms, Inc., 251 Pa.Super. 232, 380 A.2d 463 (1977).

      . The bank makes spirited arguments that there was no breach because the terms were for its benefit and protection and were waivable by the bank. Appellant’s brief at 31. We cannot say that the law firm did not regard the endorsement requirement as protection for itself, since no evidence was submitted on the issue, and thus cannot hold that one party’s waiver was effective as to both parties.
      The bank additionally argues that it had no duty to investigate Richard Robinson’s authority before paying to him the certificates. Since there is a second basis for relief, we need not hold on this contention.
      The bank, finally, argues that the trial court erred in adopting certain findings of fact and in holding that public policy dictated that the loss fall in part on the bank. The findings of fact appear to be supported by evidence; we do not believe that the public policy of enabling commerce to move freely permits the bank to roll over the rights of all innocent parties all the time.


author: BECK, Judge:

text:
    487 A.2d 380
    COMMONWEALTH of Pennsylvania v. Robert J. SHENKIN.
    Superior Court of Pennsylvania.
    Submitted March 20, 1984.
    Filed Jan. 9, 1985.

      Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellant.
    Robert J. Shenkin, West Chester, appellee, in propria persona.
    Before SPAETH, President Judge, and BECK and TAMI-LIA, JJ.
   BECK, Judge:

While traveling on West Chester Pike in Newtown Township, Delaware County, appellee Robert Shenkin’s vehicle was clocked at 66 miles per hour by an officer of the Newtown Township Police Department using a speed timing device known as the Excessive Speed Preventer (“E.S. P.”) Model TK 100. The posted speed limit at the relevant location on West Chester Pike is 40 miles per hour. Appel-lee was issued a citation for exceeding the posted speed limit in violation of section 3362 of the Vehicle Code, 75 Pa.C.S. § 3362.

Appellee was found guilty of the offense of speeding in a summary trial before a district justice. He filed a timely appeal from the judgment of the District Court. At the non-jury trial de novo in the Court of Common Pleas of Delaware County, Shenkin demurred to the Commonwealth’s evidence. His demurrer raised, inter alia, the issue of whether section 6109(b) of the Vehicle Code, 75 Pa.C.S. § 6109(b), required Newtown Township to enact an ordinance authorizing its police department to use the E.S.P. timing device. Appellee’s demurrer was overruled and he presented a defense in which he continued to attack the legal authority of the Newtown Township police to use the E.S.P. device.

The trial court then found appellee guilty of speeding. Appellee filed timely post-verdict motions for a new trial and in arrest of judgment. In addition to boilerplate challenges to the weight and sufficiency of the evidence, the post-verdict motions renewed appellee’s contention that Newtown Township was without legal authority to enforce speed limits using the E.S.P. device, because no local ordinance was enacted authorizing such actions. On August 17, 1982, the trial court granted appellee’s motion in arrest of judgment by an order which reads as follows: “AND NOW, to wit, this 17th day of August, 1982 having heard testimony, reviewed briefs submitted by both parties, it is hereby ordered that Defendant’s post-verdict motion is granted, the appeal is sustained, and the Defendant is found not guilty.” The Commonwealth brings the instant appeal from this order. For the reasons stated below, we reverse and remand.

We begin our inquiry with a consideration of whether this order is appealable by the Commonwealth. Although neither party briefed or argued the issue, we must address the appealability of the order sua sponte, since it is a question going to the jurisdiction of the appellate court. This Court may not act where it is without jurisdiction, even if the parties consent. See, e.g., Balter v. Balter, 284 Pa.Super. 350, 425 A.2d 1138 (1981).

In the instant case, it is evident from the opinion filed by the trial court that its decision to grant the motion in arrest of judgment was based on the resolution of a question of law, namely whether Newtown Township’s use of the E.S.P. timing device was improper because of the lack of an authorizing ordinance. However, the order entered by the trial court, in addition to granting “Defendant’s post-verdict motion,” also states that “the Defendant is found not guilty ” (emphasis added). We are thus faced with two competing principles in deciding whether the Commonwealth may appeal under these circumstances. The first is the general rule that the Commonwealth may appeal an order arresting judgment where a pure question of law is involved. Commonwealth v. Glendening, 262 Pa.Super. 357, 396 A.2d 793 (1979). On the other hand, a line of cases has held that a verdict of not guilty is not appealable by the Commonwealth. See, e.g., Commonwealth v. Haines, 410 Pa. 601, 190 A.2d 118 (1963); Commonwealth v. Burton, 292 Pa.Super. 73, 436 A.2d 1010 (1981).

The “judgments of not guilty” in both Haines and Burton were simply verdicts entered by the trial judge in non-jury trials. Hence, their holdings rest on the fundamental principle that the Commonwealth may not appeal from an acquittal of the defendant, a rule grounded on the Double Jeopardy Clause of the Fifth Amendment. See Commonwealth v. Maurizio, 496 Pa. 584, 437 A.2d 1195 (1981). The issue before us may therefore be restated as whether the post -verdict order entered by the trial court should be considered the equivalent of a verdict of acquittal, thereby barring the Commonwealth’s appeal.

We hold that the trial court’s incorrect use of the words “not guilty” does not convert its ruling on appellee’s motion in arrest of judgment into an unappealable acquittal. This Court sitting en banc, following relevant United States Supreme Court decisions, has held that this is a question of substance, not one of form or of technical interpretation of words. In Commonwealth v. Smalis, 331 Pa.Super. 307, 480 A.2d 1046 (1984), we held that “in determining whether action taken by the trial court has constituted an ‘acquittal’ for double jeopardy purposes, the form of the judge’s action is not controlling.” Smalis, 331 Pa.Super. at 316, 480 A.2d at 1050. Rather, in the words of the United States Supreme Court in United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977), “we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” We also cited with approval the Supreme Court’s holding in United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978), that “[a] judgment of acquittal ... may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.” Applying these principles, we held in Smalis that the Commonwealth may not appeal an order sustaining a defense demurrer grounded on insufficiency of the evidence.

Examining the trial court’s ruling in the instant case in light of Smalis, and reading the trial court’s order in the context of appellee’s motions and the court’s opinion, as Martin Linen allows us, it becomes clear that the sole basis for the arrest of judgment was a legal determination. Therefore we find that the order is not an “acquittal” for double jeopardy purposes, despite its incorrect inclusion of the words “not guilty.”

Applying the Scott test, we further find that the order is appealable, because reversal would not require a retrial. Since the court initially entered a verdict of guilty and reversed itself on post-verdict motions, the result of reversal of the order from which the appeal was taken will simply be the reinstatement of the original guilty verdict. No retrial or any other . “ ‘further proceedings ... devoted to the resolution of factual issues going to the elements of the offense charged,’ ” Smalis, 331 Pa.Super. at 318, 480 A.2d at 1052, quoting Martin Linen, 430 U.S. at 570, 97 S.Ct. at 1354, would be required.

In this latter respect, the instant case is clearly distinguishable from Haines and Burton. In Haines and Burton the ruling appealed from was the original verdict of the trial judge, so a new trial would be required upon reversal.

These distinctions are by no means novel. In the Haines opinion itself, our Supreme Court indicated that it did not intend appeals from arrests of judgment to come within the ambit of its holding. The court cited Commonwealth v. Obenreder, 144 Pa.Super. 253, 254-55, 19 A.2d 497, 498 (1941), in which we stated, “Such a verdict or judgment of acquittal is not to be confused with the quashing of an indictment, or an arrest of judgment following a verdict of guilty ... which raise only questions of law and do not result in a verdict of not guilty or judgment of acquittal” (emphasis added). We believe that the portion of the above quotation beginning with “which” was intended to describe the nature of any arrest of judgment rather than to divide arrests of judgment into two categories, one group to be considered “acquittals” and the other group “non-acquittals”. More recently, in Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983), our Supreme Court, citing Haines, refused to equate the grant of a motion in arrest of judgment with an acquittal.

See also Commonwealth v. Davis, 247 Pa.Super. 450, 372 A.2d 912 (1977), in which we permitted a Commonwealth appeal from the grant of a pre-trial motion to dismiss on the ground of autrefois acquit, despite the court’s statement on sustaining the motion that “we’ll find him not guilty on this charge.” Id., 247 Pa.Super. at 452, 372 A.2d at 913. In support of this holding, we noted that “this was not a case in which the lower court issued no final order or judgment other than the not guilty verdict.” Id., 247 Pa.Super. at 454, 372 A.2d at 912. Another important circumstance in Davis was the fact that jeopardy had not yet attached because trial had not commenced. See id., 247 Pa.Super. at 454 n. 5, 372 A.2d at 914 n. 5.

The principles of Martin Linen and Scott are also not new to Pennsylvania jurisprudence. In Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1979), our Supreme Court applied them to a set of facts which is really the converse of the instant case. In Wimberly, an order which on its face appeared to be an appealable grant of a demurrer was found actually to be a factual resolution of the case, and the Commonwealth’s appeal was dismissed.

We recognize that our holding in Commonwealth v. Thinnes, 263 Pa.Super. 79, 397 A.2d 5 (1979), is contrary to . the foregoing reasoning. At the time Thinnes was decided, the Commonwealth was generally permitted to appeal from an adverse ruling on a demurrer. However, the order of the trial court in Thinnes, in addition to sustaining the defendant’s demurrer, stated that the defendant was found “not guilty” of the offense charged. Although the trial court’s opinion clearly indicated that the decision was based on the determination of a legal issue (the construction of two statutes), we refused to look behind the face of the order and held that even the erroneous entry of a finding of not guilty rendered the order unappealable. To the extent that Thinnes exalts form over substance, making the words of the order dispositive of the appealability question, Smal-is implicitly holds that it is no longer good law. Therefore, we are of the opinion that we are bound by the decisions of our Supreme Court in Wimberly and Rawles and this Court en banc in Smalis which are grounded on principles enunciated by the United States Supreme Court.

Having established that the Commonwealth’s appeal is properly before this Court, we turn to the merits. Appellee argued, and the trial court held, that the Commonwealth’s evidence of speed must be excluded because there was no local ordinance authorizing the use of the E.S.P. Model TK 100 timing device by the Newtown Township police. We disagree. In the recent decision of this Court in Commonwealth v. DePasquale, 327 Pa.Super. 579, 476 A.2d 419 (1984), the admissibility of evidence of speed obtained through use of the E.S.P. TK 100 by local police was also at issue. We held that the Vehicle Code does not require an authorizing ordinance: “Use of the TK 100 to detect speeding violations is not contingent upon enactment of a local ordinance authorizing its use by municipal police. Use of electrical speed timing devices by municipal police officers has been authorized by 75 Pa.C.S. 3368(c)(1).” Id., 327 Pa.Super. at 583, 476 A.2d at 421.

Appellee further argues that the trial court’s decision should be affirmed even if the police’s use of the E.S.P. device itself was properly authorized, because there were no traffic signs warning of the use of this particular enforcement device. This contention is also disposed of by DePasquale. We held that the requirement of 75 Pa.C.S. § 6109(c) that “official traffic control devices” be posted requires only signs informing motorists of the speed limit or other regulation itself, not of the specific means of their enforcement. See DePasquale, 327 Pa.Super. at 583-584, 476 A.2d at 421-22.

Finally, appellee contends that the evidence of speed must be excluded because the Commonwealth failed to prove the existence of an agreement between the New-town Township police and the Pennsylvania State Police pursuant to 75 Pa.C.S. § 6109(a)(ll) authorizing the New-town Township police to enforce speed limits on West Chester Pike, a divided highway. We agree with the Commonwealth that this issue is properly raised as an affirmative defense, and that appellee has therefore waived it because he presented no evidence on the question at trial. The existence of such an agreement is not an element of the offense of speeding as it is defined in 75 Pa.C.A. § 3362. Although the Commonwealth undeniably has the burden of proving every element of the offense charged beyond a reasonable doubt, Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1979), it is not necessary for the Commonwealth to anticipate and rebut all possible defenses. More specifically, the burden of proving an affirmative defense which does not negate an element of the offense may be placed on the defendant. Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978). The non-existence of an agreement allowing local police to enforce speed limits on divided highways does not negate any element of the offense of speeding. Since appellee failed to present any evidence of this affirmative defense at trial, we decline to consider it at this level.

We therefore reverse the order granting appellee’s motion in arrest of judgment. In its opinion, the trial court stated that because it granted the motion in arrest of judgment, it did not consider appellee’s other requests for post-verdict relief. These requests included a motion for a new trial. Appellee is entitled to have the trial court consider his motion for a new trial on remand following our reversal of the order granting the arrest of judgment. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). We therefore direct the trial court to rule on appellee’s outstanding post-verdict motions.

Order reversed and case remanded for consideration of appellee’s outstanding post-verdict motions for a new trial, and further proceedings consistent with this opinion. Jurisdiction is. relinquished.

      . For a complete description of the E.S.P. Model TK 100, see our opinion in Commonwealth v. DePasquale, 327 Pa.Super. 579, 476 A.2d 419 (1984).

      . Appellee also presented evidence on the factual issues. He testified that another vehicle, which was overtaking him in the adjacent lane, passed over the sensors of the E.S.P. device simultaneously with his vehicle. The trial court indicated that it resolved this factual issue against appellee. See N.T. 4/12/82 at 35.

      . The right of the Commonwealth to appeal orders sustaining defense demurrers has been substantially modified by Commonwealth v. Smalis, 331 Pa.Super. 307, 480 A.2d 1046 (1984), discussed elsewhere in this opinion.