author: WATKINS, Senior Judge:

text:
    509 A.2d 1279
    Phillip J. SCOTT and Lorraine M. Scott, On Behalf of Themselves And All Others Similarly Situated, Appellants, v. ADAL CORPORATION and Girard Trust Bank, On Behalf Of Itself and All Others Situated, And Joseph A. Sullivan, Sheriff of Philadelphia County. Phillip J. SCOTT and Lorraine M. Scott, v. MELLON BANK (EAST) N.A., (Formerly Girard Trust Bank) and Joseph Sullivan, Sheriff of Philadelphia County. Appeal of MELLON BANK (EAST) N.A.
    Superior Court of Pennsylvania.
    Argued June 19, 1985.
    Filed May 1, 1986.
    Reargument Denied June 16, 1986.

      Henry J. Sommer, Philadelphia, for Scott, appellants in No. 1933 and appellees in No. 2130.

      Walter Weir, Jr., Philadelphia, for appellant in No. 2130 and appellee in No. 1933.
    Andrew P. Bralow, Philadelphia, for Sullivan, appellee.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   WATKINS, Senior Judge:

This appeal and cross-appeal comes to us from an Order entered July 2, 1984 in the Court of Common Pleas of Philadelphia County granting appellant Scott’s Motion for Summary Judgment in part, holding that the notice requirements of the Rules of Civil Procedure for sheriff’s sales of real property did not comport with due process, but denying the motion in all other respects.

This action was commenced by a class action complaint in equity filed in April, 1976, by the Scotts on behalf of themselves and all others similarly situated. The complaint was filed against the creditor, Girard Trust Bank (now Mellon Bank East N.A.) and the collection agency (Adal Corporation) which had exposed the Scott’s real property to a sheriff’s sale. Also named as a defendant was the Sheriff of Philadelphia County, Joseph A. Sullivan.

Mellon Bank and Adal Corporation filed preliminary objections. Sheriff Sullivan filed an Answer with New Matter. At a later stage of the case, Sheriff Sullivan filed a Motion for Judgment on the Pleadings. Several other motions not relevant to this appeal were also filed by various parties. Thereafter, the court below granted Mellon Bank and Adal Corporation’s preliminary objections and Sheriff Sullivan’s Motion for Judgment on the Pleadings, dismissing the case.

This Court, on appeal, reversed that dismissal and remanded the case for a class action determination and further proceedings. See Scott v. Adal Corp., 276 Pa. Superior Ct. 459, 419 A.2d 548 (1980). After our Supreme Court denied review, the remanded case was assigned to Judge White, of the court below, who directed the parties to brief and argue the class action issue. On March 1, 1982, Judge White ruled that the case could proceed as a class action, with a plaintiff class represented by Scott and a defendant class of judgment creditors and sheriffs sale purchasers represented by Girard Trust Bank (Mellon).

Subsequently Scott and the defendants entered into agreements and stipulations to simplify the issues. In return for the satisfaction of the judgment against him, Phillip Scott released Girard Bank (Mellon) from individual monetary claims arising out of this transaction. This release left only the individual and class claims for declaratory and equitable relief to be resolved by the court.

After additional discovery the case was assigned to Judge Goldman, before whom both Girard (Mellon) and Sheriff Sullivan, argued that a class action was improper in the case. Judge Goldman rejected these arguments and on July 27, 1983, held that Judge White had previously certified the class.

The parties then filed cross-motions for summary judgment as to liability on all remaining claims in the lawsuit.

On July 2, 1984, the court below granted Scott’s motion in part, holding that the notice requirements of the Rules of Civil Procedure for sheriff’s sales of real property did not comport with due process. The court denied the Scott’s motion in all other respects. This Order was to become effective October 17, 1984. On July 31, 1984, the court below issued an implementation order.

Thereafter, the parties filed an appeal and a cross appeal to this Court. This Court, on its own motions, questioned its jurisdiction since the order appealed from held a rule of court unconstitutional. We then transferred the appeal to the Supreme Court pursuant to Pa. R.A.P. 751. The Supreme Court remanded the appeal to this Court by an order dated December 14, 1984, to decide whether jurisdiction over this matter lies with this Court or with the Supreme Court pursuant to 42 Pa. C.S.A. § 722(7) which vests jurisdiction in the Supreme Court when a lower court decision holds a statute unconstitutional. Accordingly, we begin with the determination of this issue.

Pursuant to 42 Pa. C.S.A. § 742, the Superior Court has exclusive jurisdiction of all appeals from final orders of the Court of Common Pleas regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this Chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.

Under 42 Pa. C.S.A. § 722(7) the Supreme Court has exclusive jurisdiction of appeals from final orders of the Courts of Common Pleas in:

(7) Matters where the court of common pleas has held invalid as repugnant to the Constitution, treaties or laws of the United States, or to the Constitution of this Commonwealth, any treaty or law of the United States or any provision of the Constitution of, or of any statute of, this Commonwealth, or any provision of any home rule charter.

Although our appellate courts have held that rules of civil procedure have the force or effect of statutes, e.g., Dombrowski v. Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968); In Re: Schofield, 362 Pa. 201, 66 A.2d 675 (1949); Lojeski v. Quirk, 202 Pa.Superior Ct. 471, 198 A.2d 410 (1964), they have not held that rules of court are statutes for purposes of appellate jurisdiction. Indeed, the Supreme Court has, by implication, expressed doubt that rules of court should be treated as statutes for jurisdictional purposes.

In Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 375 A.2d 1285 (1977), the Supreme Court declined to rule on the issue:

Appeals were taken to the Superior Court, which transferred the appeals to this Court. The Superior Court concluded that this Court had exclusive jurisdiction of the appeals pursuant to § 202(9) of the Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, Art. LL, § 202(9) 17 P.S. 211, 202(9) (Supp.1976), now [42 Pa.C.S.A. 722(7)]. Section 202(9) provides that the Supreme Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in matters in which the court has held invalid as repugnant to the Constitution of the United States any act of Assembly of this Commonwealth. Neither party has objected to the jurisdiction of this Court on the grounds that the Superior Court may properly have had jurisdiction over the appeals. Our jurisdiction to decide the appeal is thereby perfected, (citations omitted). By accepting jurisdiction in these circumstances we express no view as to whether § 202(9) vests exclusive jurisdiction in this Court where, as here, the court of common pleas has held unconstitutional a Rule of Court rather than an Act of Assembly. 375 A.2d at 1286 n. 2.

Considering the foregoing, we conclude that the Pennsylvania Supreme Court does not have exclusive jurisdiction when a Rule of Court has been declared unconstitutional. Therefore, this appeal is properly before us.

The questions presented in the appeal and the cross-appeal are as follows:

1. Did the court of common pleas abuse its discretion in failing to afford equitable relief to members of the plaintiffs class from sheriffs sales for grossly inadequate prices?

2. Do sheriffs sales which deprive judgment debtors of property far in excess of the amount they owe deny those debtors substantive due process of law?.

3. May a court deny the benefit of its decision in a class action to class members who are parties to the proceeding?

In the cross appeal, Mellon Bank questions whether the form of notice given to judgment debtors in Philadelphia County in sheriffs sale proceedings against real property fails to satisfy minimum constitutional requirements of procedural due process because the form does not provide notice of the existence of any procedures or rights the judgment debtor may exercise to prevent or set aside such sheriffs sales.

In their first issue appellants’ argue that since sheriff’s sales of a debtor’s property may take place for grossly inadequate prices, the court below was required to find that equitable principles dictate that all future sales be prevented unless a minimum price was bid.

Pennsylvania law is clear that mere inadequacy of price is not sufficient reason to set aside a Sheriff’s Sale. Fidelity Bank v. Pierson, 437 Pa. 541, 264 A.2d 682 (1970). To set aside such a sale, the price must be grossly inadequate. Cappozzi v. Antonoplos, 414 Pa. 565, 201 A.2d 420 (1964); Vend-A-Matic, Inc. v. Frankford Trust Co., 296 Pa. Superior Ct. 492, 442 A.2d 1158 (1982). The courts have traditionally looked at each case on its own facts. It is for this reason that the term “grossly inadequate price” has never been fixed by any court at any given amount or any percentage amount of the sale.

In support of the proposed per se rule appellant Scott offers the case of Home Beneficial Life Ins. Co. v. Blue Rock Shopping Center, 379 A.2d 1147, 1149 (Del.Super.,1977). Under the ruling in that case, the Delaware courts have adopted a standard of fifty percent in determining whether a sheriff’s sale has occurred at a grossly inadequate price; however, this percentage amount is not inflexible. The Delaware courts also look to such factors as the nature and size of the property, the structure on it, and its value, as factors which may lead to a departure from the fifty percent test. See, e.g. Girard Trust Bank v. Castle Apartment, Inc., 379 A.2d 1144 (Del.Super.,1977).

Considering the foregoing, we conclude that the court below did not abuse its discretion in failing to afford the requested equitable relief.

Next, appellant maintains that, equity aside, permitting a sheriffs sale to. proceed where a bid is less than a set percentage of the fair market price of the property violates substantive due process. As authority for this proposition, appellant relies on provisions contained in both the Pennsylvania and United States Constitutions. Appellants alternatively argue that this is an economic regulation enacted in the exercise of police power which cannot be sustained because it is arbitrary.

It is not disputed that both federal and state constitutional law mandate explicitly that private property cannot be taken for public use without compensation. The “taking” clause contained therein imposes a specific substantial standard, i.e., just compensation, when private property is divested to public uses. See, e.g. U.S. v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101 (1945). In the case sub judice, the taking of property is not for public use rather, it is mediating a conflict between private parties.

The U.S. Supreme Court has acknowledged that the requirements for just compensation, in connection with the taking of property, were designed “to ban the Government from forcing some people to carry a public burden” which in all fairness and justice should be borne by the public as a whole. See e.g., Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960). The courts have found government action or laws to be an unconstitutional taking where: (1) property is confiscated by the government, such as in an eminent domain proceeding see e.g. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); (2) where a law totally destroys a pre-existing property right. See e.g. Armstrong v. U.S., supra; or (3) where a physical intrusion results in a taking. See U.S. v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946).

None of the above has occurred in the instant case. There is no “taking” at a sheriffs sale in the constitutional sense because there has not been any appropriation for government use.

Appellants also argue that because there is a transfer of property pursuant to foreclosure proceedings, the relevant Pa. Rule of Civil Procedure constitutes a state economic regulation of property rights and, therefore, is subject to substantive due process constraints.

Despite appellant’s assertions, the Rules of Civil Procedure do not involve a restriction on one’s liberty or property; a prerequisite to finding a violation of substantive due process. See e.g. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

Further, appellant argues that the sheriff’s sale procedure, as it presently operates, fails to meet constitutional requirements because there is no rational basis for the omission of any standard that requires a relationship between the price bid at the sale and the fair market value of the property.

The purpose of the rule is to provide a working mechanism to enforce a judgment. The government has no legitimate interest in setting a price for the property; instead the government allows the market to operate.

Accordingly, we conclude that appellant’s arguments that there has been a “taking” or that the Rule is an arbitrary economic regulation or that a per se rule is constitutionally requied, are without merit.

In their third issue, appellants contend that the holding of the court below, that the sheriff’s sale notice procedures were unconstitutional, should apply to all sheriff’s sales of real property where the deed had not yet passed.

The lower court’s order was dated July 2, 1984, and was to be effective on October 17, 1984. On July 31, 1984, the court below issued its implementation order, effective immediately. Appellants had also sought a stay to prevent any sales from being consummated in which the class members had not been given notice which met constitutional requirements. The stay was denied by both the court below and the Pennsylvania Supreme Court.

It is unclear what relief appellants are seeking but their claim at issue appears to be that the order should have been applied retroactively to void any deed passing from the time of the July 2, 1984, order until the July 31, 1984, implementation order.

Appellant relies on Luskey v. Steffron (II), 469 Pa. 377, 366 A.2d 223 (1976). In Luskey v. Steffron (I), 461 Pa. 305, 336 A.2d 298 (1975), the Supreme Court declared on April 17, 1975, that Pa.R.C.P. 3129 violated the due process clause of the United States Constitution in failing to provide personal notice to the owner of real estate that was the subject of a sheriffs sale. In Luskey v. Steffron (II), supra, the Pennsylvania Supreme Court held that the holding in Luskey (I) was applicable to sheriffs sales initiated after April 17, 1975. In reaching this conclusion, the Supreme Court pointed out that:

Prior to Luskey No. 1, this court and federal courts have found that notice by publication was adequate notice and comported with due process, (citations omitted.) Municipalities and purchasers have relied on such prior decisions and it would be manifestly unjust to negate clear titles to real estate -purchased in good faith at sheriffs sales, based on prior notice provisions, given such reliances. 469 Pa. at 379-380.

The Supreme Court continued:

However, as of April 17, 1985, the date of Luskey no. 1, notice was given to municipalities, courts and the legal profession that notice by publication in sheriffs sales was not longer constitutional.

The court below in its July 31, 1984 implementation order addressed three distinct categories that would require the sending of a new form of notice; all of those sheriffs sales to be scheduled in the future on which no writs of execution had yet been issued, all of those sheriffs sales that had been scheduled by virtue of the issuance of a writ of execution but on which no sale had yet taken place and all of those sheriffs sales where writs of execution had already issued, the sheriffs sale had taken place but the sheriff had not yet delivered a deed to the sheriffs sale purchaser.

As in Luskey, No. 2, the municipalities, courts and the legal profession were on notice that as of July 2, 1984, the notice procedures in Sheriffs sales had been held unconstitutional. However, this was not to be effective until October of 1984. Thus, the creditors relied on the “old” procedure at least until the date of the implementation order. As the Supreme Court pointed out in Luskey No. 2, supra, municipalities and purchases have relied on such prior decisions and it would be manifestly unjust to negate clear titles to real estate purchased in good faith ... based upon prior notice provisions.

Therefore, we conclude that the court below did not err in not applying the order retroactively. Moreover, our disposition of the issue raised in Mellon’s cross-appeal renders this point moot.

In the cross-appeal Mellon contends that Pa.R.C.P. 3129 is not unconstitutional and does not require the form of notice sought by appellant. We agree.

In ruling that Pa.R.C.P. 3129 was unconstitutional, the court below relied on Finberg v. Sullivan, 634 F.2d 50 (3d. Cir.1980).

Finberg involved a post-judgment garnishment proceeding in which the creditor attached a bank account in which there was on deposit proceeds of social security benefits. Although these funds were exempt from execution and attachment under federal law, and although the creditor was advised that these funds were exempt, the creditor refused to release the attachment. Since the garnishment rules did not advise the debtor of her exemptions and did not provide for a prompt hearing for any claimed exemption, the rules were held unconstitutional. Finberg v. Sullivan, supra at 51.

The court in Finberg recognized that the issuance and service of a writ of execution attaching funds on deposit to a debtor’s bank account that were exempt under federal law and which worked an immediate deprivation of constitutionally protected right without notice or hearing, implicated a constitutional interest of great magnitude. The Finberg court noted that knowledge of these exemptions is not widespread and a judgment debtor may not be able to consult with a lawyer before the freeze on his bank account creates serious problems. The court also reasoned that the creditor would not have to incur any additional expense or delay in providing constitutionally adequate notice.

As Mellon Bank points out in its brief, unlike the situation in Finberg, the issuance of a writ of execution against the debtor’s real estate does not work as an immediate seizure of the property. Before the creditor or sheriff’s sale purchaser can take possession of the debtor’s real estate, the debtor must voluntarily vacate the premises or eviction proceedings must be brought against the debtor. The debtor, by this time, has already been advised in writing repeatedly that he should contact a lawyer, that he may lose valuable property rights unless he acts promptly. Unlike the situation in Finberg, a debtor who is served with a writ of execution has ample opportunity to consult a lawyer who can advise him of his rights and protect his interests.

Further, as Mellon points out, due process does not require notification of every possible legal consequence that may flow from any action taken by a creditor. See Texaco, Inc. v. Short, 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982). The right to petition to set aside a sheriff’s sale for a grossly inadequate price is functionally indistinguishable from any of a number of other rights that a debtor has in connection with a sheriff’s sale of his real estate.

Considering the foregoing we conclude that a debtor does not have a constitutionally protected right to be advised that if his property is sold for a grossly inadequate price, he can petition the court to have the sale set aside.

In reaching this conclusion, we cannot ignore the public policy considerations. In promulgating the Rules of Civil Procedure for enforcing money judgments, the Supreme Court balanced the need to provide for procedural safeguards for debtors with the need to provide a method whereby creditors could receive prompt and relatively inexpensive satisfaction of their debts.

Creditors, in fashioning lending policies, take into consideration the method by which they can obtain payment in the event of a default. If we were to make the burden of enforcing money judgments too onerous for creditors this could be reflected in loan policies. Creditors would become more reluctant to make “small” loans, e.g. first home loans, which in turn adversely affects the consumer, particularly the residential home buyer who needs a mortgage in order to purchase a home.

There is no evidence that the procedure suggested by the court below would assist the debtor in securing relief. Rather, it would simply add to the process without attendant benefits. Therefore, we conclude that the court below erred in holding Pa.R.C.P. 3129 unconstitutional.

Order reversed insofar as it concerns the unconstitutionality of Pa.R.C.P. 3129; affirmed in all other respects.

POPOVICH, J., concurs in the result.

      . Although Girard’s (Mellon's) judgment against him was satisfied, appellant Scott remains subject to the challenged sheriff's sale procedures. He is presently the defendant in a mortgage foreclosure proceeding. Fed. Nat'l Mortgage Ass'n. v. Scott C.P. Phila., July Term, 1984, No. 1755.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    509 A.2d 1286
    Russell and Jean MARTIN, H/W and Freddie and Shirley Watkins, Appellants, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN.
    Superior Court of Pennsylvania.
    Submitted Dec. 18, 1985.
    Filed May 8, 1986.
    Reargument Denied June 16, 1986.

      Neal Cohen, Philadelphia, for appellants.
    David M. McCormick, Philadelphia, for appellee.
    Before BROSKY, JOHNSON and HESTER, JJ.
   BROSKY, Judge:

This case is before us on appeal from entry of summary judgment in favor of defendant/appellee. The sole issue for our determination is whether the trial court erred in finding that appellants’ claims under the Pennsylvania No-fault Motor Vehicle Insurance Act (hereinafter the Act) were barred by the statute of limitations contained in the Act. We find that the trial court erred in finding the claims barred, and we therefore reverse and remand for further proceedings consistent with this opinion.

Appellants Freddie Watkins and Russell Martin, on March 17, 1978, were passengers in a motor vehicle owned by the City of Philadelphia (a self-insurer) when the vehicle was allegedly struck from behind by an uninsured motor vehicle. The two men, along with their wives, pursuant to § 108(a)(1) of the Act, presented claims to the defendant/appellee, the Pennsylvania Assigned Claims Plan (hereinafter PACP), for uninsured motorist benefits. The claims were denied, and appellants filed a complaint in trespass, alleging that the PACP was negligent for failing to assign their claims to an appropriate insurance carrier for payment of uninsured motorist benefits. Appellee filed a motion for summary judgment, arguing that appellants’ claims were barred by the statute of limitations and also that the claims were barred because the two men were injured while occupying a self-insured vehicle. The trial court granted the motion for summary judgment, holding that the statute of limitations barred the claims “especially where Plaintiffs admittedly ascertained the uninsured status of the tortfeasor more than two (2) years prior to the institution of the case at bar.” We find that the date appellants learned of the uninsured status of the vehicle which struck theirs is not pertinent to a determination of when the statute of limitations began to run.

Section 106(c)(1) of the No-fault Act provides (in pertinent part):

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

Section 108(c)(1) of the Act provides:

Except as provided in paragraph (2) of this subsection, an individual authorized to obtain basic loss benefits through the assigned claims plan shall notify the assigned claims bureau of his claim within the time that would have been allowed pursuant to section 106(c) of this act for commencing an action for basic loss benefits against any obligor, other than an assigned claims bureau, in any case in which identifiable no-fault insurance coverage was in effect and applicable to the claim.

(Footnote omitted). When these two sections of the Act are read together, it is clear that when no-fault benefits have not been paid in a non-death case (the situation now before us), notice must be given to the PACP within two years of the date the claimant has suffered “loss” and reasonably should know that the loss was caused by the accident. The question which now confronts us is: When does “loss” occur when the compensation being sought is for non-economic loss under uninsured motorist coverage rather than for economic loss which is compensable as no-fault basic loss benefits?

In Zubris v. P.A.C.P., 321 Pa.Super. 83, 467 A.2d 1139 (1983), a panel of our court struggled to determine when “loss” occurred in a case involving a claim filed with the PACP for no-fault basic loss benefits. In reaching its determination, the court relied on Myers v. U.S.A.A. Casualty Ins. Co., 298 Pa.Super. 366, 444 A.2d 1217 (1982). Myers was subsequently reversed by our Supreme Court in Murphy v. Prudential Property and Casualty Ins. Co., 503 Pa. 528, 469 A.2d 1378 (1983). In light of Murphy, Zubris would seem to no longer be valid.

In Murphy, an insured who had not previously been paid any no-fault benefits brought an action against his insurer for no-fault benefits. The Supreme Court applied the no-fault § 103 definition of “loss”, which refers to economic loss, and held that such loss was sustained for purposes of § 106(c)(1) when an allegedly covered service (medical service, replacement service, etc.) was rendered, and that a claimant seeking to recover for such loss had to commence suit within two years of the date that he knew or should have known that the loss was caused by the accident.- Since it was possible that the claimant in that case had sustained part of his loss within the two years preceding the commencement of suit, the court remanded with leave for the parties to present supplemental proof in the trial court as to any loss that had occurred during that two-year period.

Appellants in the case before us are attempting to recover uninsured motorist benefits for such non-economic loss as pain and suffering, mental anguish, and loss of consortium — items which do not fall within the no-fault definition of “loss”. Admittedly, it will be much easier to determine when economic loss is sustained than to determine when non-economic loss is sustained. Nevertheless, in the case before us, analogously to the approach taken in Murphy, we find that appellants are not barred by the statute of limitations from obtaining uninsured motorist benefits for non-economic loss sustained during the two years immediately preceding the date that they gave notice of their claims to the PACP. Appellants in this case will be barred from asserting claims for pain and suffering, mental anguish, loss of consortium, etc., occurring prior to two years before the date they gave the required notice to the assigned claims bureau, except for such losses as appellants did not know and could not reasonably have been expected to know resulted from the accident.

Reversed and remanded to the trial court for further proceedings consistent with this opinion.

      . 40 P.S. § 1009.101 et seq.

      . That section provides:
      If this act is in effect on the date when the accident resulting in injury occurs, a victim or the survivor or survivors of a deceased victim may obtain basic benefits through the assigned claims plan established pursuant to subsection (b) of this section, if basic loss insurance:
      (A) is not applicable to the injury for a reason other than those specified in the provisions on ineligible claimants;
      (B) is not applicable to the injury because the victim converted a motor vehicle while he was under fifteen years of age;
      (C) applicable to the injury cannot be identified;
      (D) applicable to the injury is inadequate to provide the contracted-for benefits because of financial inability of an obligor to fulfill its obligations; or
      (E) benefits are refused by an obligor for a reason other than that the individual is not entitled in accordance with this act to receive the basic loss benefits claimed.

      . Tubner v. State Farm Automobile Insurance Assoc., 496 Pa. 215, 436 A.2d 621 (1981) held that a company assigned to provide no-fault benefits pursuant to the PACP must also pay uninsured motorist benefits pursuant to the Uninsured Motorist Act, Act of August 14, 1963, P.L. 909, § 1, as amended, December 19, 1968, P.L. 1254, No. 397, § 1, 40 P.S. § 2000.

      . See Bragg v. State Automobile Insurance Assoc., 350 Pa.Super. 257, 504 A.2d 344 (1986), for application of the relevant statute of limitations in a non-death case where uninsured motorist benefits were being sought more than two years after no-fault benefits had been paid.

      . See Warren v. Reliance Ins. Co., 318 Pa.Super. 1, 464 A.2d 487 (1983) for a thorough discussion of the time limits for applying for basic loss benefits with the PACP and for commencing suit against the assigned obligor for failure to pay such benefits.

      . "Accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor's loss.” "Allowable expense” is defined in the Act as essentially medical and funeral expense.


author: JOHNSON, Judge:

text:
    509 A.2d 1289
    COMMONWEALTH of Pennsylvania v. Daniel S. ROSKO, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 5, 1986.
    Filed May 8, 1986.
    Reargument Denied June 16, 1986.

      W. Hamlin Neely, Allentown, for appellant.
    John J. Waldron, Assistant District Attorney, Allentown, for Com., appellee.
    Before WICKERSHAM, McEWEN and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant, Daniel Rosko, was convicted following a jury trial of violating two sections of the Vehicle Code which prohibit drunk driving, 75 Pa.C.S. § 3731(a)(1) and (a)(4). He was sentenced for both violations on June 20, 1985 to 8 to 23 months of incarceration, to pay a $500 fine and costs. The trial court did not indicate which portion of the sentence could be attributed to the violation of Section 3731(a)(1) and which portion could be attributed to the violation of Section 3731(a)(4).

Sections 3731(a)(1) and (a)(4) read as follows:

(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving; ...
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

On appeal to this Court, Appellant contends that the jury’s verdict amounted to a conviction for a violation of only Section 3731(a)(1); that the evidence presented was insufficient to support a conviction under Section 3731(a)(1); and that the evidence was insufficient to support a conviction under Section 3731(a)(4).

The facts are succinctly summarized by the trial court in the following manner:

At approximately 3:00 A.M., February 16, 1983, a vehicle operated by the defendant, in which Beverly Sweeney (Miss Sweeney) was a passenger, struck the rear of a tractor trailer while traveling north on Route 100, Upper Macungie Township, Lehigh County, Pennsylvania. Miss Sweeney was killed and the defendant was injured.
The defendant testified at trial that between midnight and 1:30 A.M., he had consumed at least three (3) Scotch and sodas at H.J. Winston’s (Winston’s). He left Winston’s at approximately 2:15 A.M. with Miss Sweeney, an acquaintance, whom he had invited to go for a ride. The defendant testified that although he observed the tractor trailer turning from the southbound lane of Route 100 into a gas station, he thought it would clear his lane of traffic. As a result of the collision which occurred when it did not, the defendant was rendered unconscious and taken by ambulance to the Lehigh Valley Hospital Center (LVHC).
The result of a blood test performed on the defendant at approximately 4:30 A.M. revealed the defendant’s blood alcohol was 0.20 per cent. At 7:00 A.M., a second blood test indicated the blood alcohol level to be 0.15 percent.

Opinion, 4/22/85 at 1, 2.

The first issue raised by Appellant regarding the jury’s verdict has been waived because it was not included in the timely post-trial motions which were filed on November 10, 1983. The first time that Appellant complained about the propriety of the verdict slip was when he filed supplemental post-trial motions approximately one year after the verdict was entered. Appellant did not seek permission of the trial court to raise this additional issue nunc pro tunc. One must either file post-verdict motions within ten days under Pa.R.Crim.P. 1123(a) or seek permission to file post-verdict motions nunc pro tunc under the Post Conviction Hearing Act as required by Pa.R.Crim.P. 1123(f). As we recently reiterated in Commonweath v. Jackson, 336 Pa.Super. 609, 623, 486 A.2d 431, 439 (1984), “[o]ur Court will review only those issues which have been properly preserved for review, i.e., errors which have been raised specifically in written post-trial motions pursuant to Pa.R. Crim.P. 1123(a).”

The second issue raised by Appellant challenges the sufficiency of the evidence to support a conviction under 75 Pa.C.S. § 3731(a)(1). We find this issue to have merit and, therefore, reverse the conviction under 75 Pa.C.S. § 3731(a)(1).

In order to convict Appellant of a violation of Section 3731(a)(1), the Commonwealth must prove not only that Appellant had been driving but that he was “under the influence of alcohol to a degree which renders the person incapable of safe driving.” Appellant’s testimony that he had consumed at least three Scotch and sodas, without more, is not sufficient to demonstrate that he had been rendered incapable of safe driving. In the instant case there is no testimony regarding Appellant’s operation of the vehicle or physical condition which would demonstrate that he was incapable of safe driving. Without such supporting testimony, Appellant’s conviction for violating Section 3731(a)(1) cannot stand.

The only testimony of record concerning the operation of Appellant’s vehicle immediately before the accident was that of the Appellant. He testified that he thought the tractor trailer, which was turning across the northbound lane of traffic, would be clear of his path if he merely decelerated rather than applying the brakes immediately. (R. 179a-80a). The tractor trailer did not clear the roadway in time since its wheels were spinning in the snow alongside the highway. Appellant recounts that he then applied his brakes, but collided with the rear of the trailer since another oncoming tractor trailer prevented him from entering the southbound lane. (R. at 180a). While in hindsight this evidence shows bad judgment on Appellant’s part, it does not demonstrate that he was under the influence of alcohol to a degree which rendered him incapable of safe driving.

The final issue raised by Appellant challenges the sufficiency of the evidence to sustain a conviction for a violation of Section 3731(a)(4). Appellant argues that the test results measuring the blood alcohol content by volume cannot support a conviction where the statute prohibits driving while “the amount of alcohol by weight in the blood of the person is 0.10% or greater.” 75 Pa.C.S. § 3731(a)(4) (emphasis added).

This precise issue was recently addressed by our Court in Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359 (1986) where we held that the results of blood-alcohol tests, which establish alcohol content in the blood by volume rather than by weight, are admissible to support a conviction for driving under the influence. See 75 Pa.C.S. § 1547(d).

Under Section 3731(a)(4) there is no requirement to show that Appellant’s ability to drive safely was impaired as there is under Section 3731(a)(1). The test results alone in the instant case support a conviction under Section 3731(a)(4).

Because the trial court did not differentiate between Section 3731(a)(1) and Section 3731(a)(4) when Appellant was sentenced, we are constrained to vacate the June 20, 1985 judgment of sentence. The conviction for violation of 75 Pa.C.S. § 3731(a)(1) is reversed while the conviction for violation of 75 Pa.C.S. § 3731(a)(4) is affirmed. Remanded to the trial court for resentencing. Jurisdiction is not retained.


author: CERCONE, Judge:

text:
    509 A.2d 1292
    COMMONWEALTH of Pennsylvania, Appellant, v. Norman WILLIAMS. COMMONWEALTH of Pennsylvania, Appellant, v. Thomas V. PORTER.
    Superior Court of Pennsylvania.
    Argued Feb. 26, 1986.
    Filed May 23, 1986.
    Petition for Allowance of Appeal Denied Nov. 18, 1986.

      William A. Behe, Chief Deputy District Attorney, Harrisburg, for Com., appellant.

      Allen C. Welch and John M. Glace, Assistant Public Defenders, Harrisburg, for appellees.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by the Commonwealth from the sentence of the trial court by which both appellees were given concurrent indeterminate sentences under the “Youthful Offenders Act”. 61 P.S. § 485. Appellees pleaded guilty to robbery, 18 Pa.C.S.A. § 3701(a)(l)(i) and (ii) and criminal conspiracy, 18 Pa.C.S.A. § 903, arising from their accosting and striking a victim and taking $3.50 from him. Appellee Williams threatened the victim with what was later discovered to be a pellet gun. This fact is not contested.

In compliance with the section of the Mandatory Minimum Sentencing Act which concerns offenses committed with firearms, 42 Pa.C.S.A. § 9712, the Commonwealth provided notice to appellees of its intention to proceed under the section which mandates a mandatory minimum sentence of five years for convictions of certain enumerated felonies, one of which is the specific robbery section involved in this case. A sentencing hearing was held during which the court expressed difficulties in applying the mandatory minimum sentences. The court refused to include a pellet gun in the definition of firearm of § 9712. It also found § 9712 inapplicable to the accomplice, Porter, who never visibly possessed the gun. The court was also moved to leniency because neither defendant had an adult criminal record; and Williams had no record of any kind. Thus, the court elected to sentence both young men under the Youthful Offenders Act.

The Commonwealth is appealing these sentences under § 9712(d) which provides for appellate review in a situation like the instant one; that is, where the sentencing court refuses to apply this section where applicable. § 9712(b) provides that the applicability of this section shall be determined at sentencing by the court. If the court, from a consideration of the evidence presented at trial, or in this case at the guilty plea proceeding, and at the sentencing hearing, determines by a preponderance of the evidence that a firearm was visibly possessed during the commission of the offense, then it must sentence the defendant to the five year minimum term of imprisonment. In this case, we agree with the Commonwealth that the trial court erred in refusing to impose sentences in accordance with § 9712.

The question of whether a carbon dioxide operated pellet gun is a firearm for purposes of § 9712 was answered in Commonwealth v. Sterling, 344 Pa.Superior Ct. 269, 496 A.2d 789 (1985). The court referred to the definition of firearm contained in § 9712:

—As used in this section ‘firearm’ means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.

In the face of Commonwealth v. Schilling, 288 Pa.Superior Ct. 359, 431 A.2d 1088 (1981) which found that a carbon dioxide pellet gun was not a firearm as defined under the Uniform Firearms Act, the Sterling court acknowledged that various definitions of “firearms” exist for various purposes.

A carbon dioxide powered BB gun clearly fits within the ambit of section 9712(e)____ A carbon dioxide powered gun expels a projectile by the action of an explosive or the expansion of gas. Thus, there is no doubt that it is a firearm for purposes of section 9712 of the Sentencing Code.

Id., 344 Pa.Superior Ct. at 274, 496 A.2d at 792.

In this case, the Commonwealth presented evidence at the hearing held on its motion for reconsideration of sentence that established the gun was a pellet gun that was designed to expel a projectile, or that could readily be converted to do so. The definition in § 9712(e) does not require that the Commonwealth prove that the gun was operable at the time it was used, unlike the proof required under the Uniform Firearms Act. See Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973). The Commonwealth showed all that was necessary under § 9712 to prove by a preponderance of the evidence that a firearm was visibly possessed during the commission of the crimes.

The next issue to be determined is whether an accomplice, Porter in this case, may be sentenced in accordance with § 9712 when he did not visibly possess the firearm himself. Unlike the Deadly Weapon Enhancement of the Sentencing Guidelines which includes accomplices as subject to the 12 to 24 months confinement (204 Pa.Code § 303.4, 42 Pa.C.S.A. § 9712), § 9712 makes no mention of accomplices. Moreover, we have not discovered any case law in Pennsylvania involving the applicability of § 9712 to an unarmed accomplice. Other jurisdictions have grappled with this problem and we consult them for guidance.

New Jersey has enacted a statute which provides for a mandatory minimum term of imprisonment for a person who has been convicted of certain enumerated crimes while in possession of a firearm. N.J.S.A. 2C: 43-6, subd. c. (The Graves Act). In State v. White, 98 N.J. 122, 484 A.2d 691 (1984), the Supreme Court held that an accomplice who is found guilty of one of the felonies enumerated in the Graves Act will be subject to sentencing under that Act’s mandatory provisions. The defendant accompanied three other felons in the perpetration of two armed robberies, but the defendant did not carry the gun. Thus the question to be decided was whether the defendant’s role as an accomplice subjected him to the same mandatory penalties as a principal.

In deciding that the defendant-accomplice was thus subjected, the court referred to the definition of accomplice in the New Jersey Code of Criminal Justice as conferring legal accountability.

An accomplice may be guilty of armed robbery even though he did not personally possess or use the firearm in the course of the commission of the robbery. The accomplice has committed the same crime as the individual who possessed or used the gun if the accomplice had the purpose to promote or facilitate the crime, namely, robbery with the use of a firearm. See N.J.S.A. 2C:15-lb; N.J.S.A. 2C:2-6b; State v. Gantt, 195 NJ.Super. 114, 118, 478 A.2d 422 (App.Div.1984) (certif. pending). One is the alter ego of the other.

Id., 98 N.J. at 129, 484 A.2d at 695. (footnote omitted)

In Key v. State, 563 S.W.2d 104 (Tenn.1978), the court, while refusing to read “if he or Ms accomplice had in his possession" into the statute, concluded that an unarmed participant may be subject to an enhanced penalty under a theory of joint possession, if he had knowledge that the other participant is in possession of a firearm. The record in Key was silent as to this fact.

In State v. Roylston, 135 Ariz. 566, 663 P.2d 250 (1983) the court upheld the enhanced penalty for an unarmed defendant, where the co-defendant used the knife in the aggravated assault and shoplifting, under an accomplice theory.

In People v. Tung Thanh Le, 154 Cal.App.3d 1, 200 Cal.Rptr. 839 (4 Dist.1984), the court found that accomplices of an armed felon were subject to an enhanced penalty under a statute that did not explicitly provide for such. But see People v. Allen, 211 Cal.Rptr. 837, 165 Cal.App.3d 616 (2 Dist.1985) (Defendant must personally use deadly weapon to be subject to enhanced penalty.)

We are persuaded by the case law in those jurisdictions which impose the minimum sentence of confinement on an unarmed accomplice who has knowledge that a firearm is employed in the commission of the pertinent felony. It would be anomalous to sentence the armed felon in accordance with the minimum sentence, while not similarly punishing an accomplice who is otherwise legally accountable for the actions of the armed felon. Especially would this be so in the instant case in which Porter, the unarmed accomplice, saw the gun in question, knew it was to be used in perpetration of the robbery and pleaded guilty to the conspiracy and the robbery. In this case where the gun was the means which the two actors used to accomplish their end of obtaining money from their unsuspecting victim, both perpetrators must bear the mandatory minimum sentence. We therefore hold that an unarmed accomplice to a crime mandating imposition of a sentence under § 9712 of the Mandatory Minimum Sentencing Act shall be sentenced in accordance thereof if it is shown by the proof that the unarmed accomplice had knowledge that the firearm was visibly possessed by his co-felon in the commission of the crime.

Finally, the Commonwealth challenges the sentencing court’s refusal to sentence in accordance with § 9712 when it chose to sentence appellees under the “Youthful Offenders Act.” Both defendants were nineteen when they committed the instant crimes. The court felt it had the discretion to sentence appellees under that Act which provides that any defendant, between ages fifteen and twenty-one years, not known to have been previously sentenced to a State penitentiary, can be sentenced by the court, in lieu of any sentence now provided by law, to the State Correctional Institution at Camp Hill for an indeterminate sentence, not to be in excess of six (6) years. 61 P.S. §§ 483; 485. We conclude that in light of the purpose behind § 9712, that the sentencing court does not have the discretion whether to sentence in accordance with § 9712.

In Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354, 362 (1985) cert. granted, McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 58, 88 L.Ed.2d 47 (1985), the Pennsylvania Supreme Court (Justices Larsen, Concurring) set forth the purpose behind this statute.

Society can not tolerate the tyranny of armed felons. Recognizing this, the legislature wisely enacted legislation providing for a mandatory minimum five-year jail term for those who visibly use a firearm in the commission of the following serious felonies:

“[m]urder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(1), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes ...” 42 Pa.C.S.A. § 9712(a). It is intended, and it is reasonable to believe, that application of the Mandatory Sentencing Act will deter the dangerous and intimidating use of firearms by felons in the perpetration of crimes. A lengthened incarceration for felons who make visible use of firearms in the execution of their criminal deeds tends to have the effect of maintaining in the citizenry, much needed confidence in our criminal justice system.
Id., 508 Pa. at 42, 494 A.2d at 363.

42 Pa.C.S.A. § 9712(a) provides specifically for its application “notwithstanding any other provision of this title or other statute to the contrary.” The mandatory nature of the Act is what insures the strong deterrent against the use of firearms by defendants. In Commonwealth v. Molina, 344 Pa.Superior Ct. 459, 496 A.2d 1196 (1985) this court reversed the lower court’s refusal to sentence a defendant in accordance with § 9712 when he fell within the mandate of the Act. This court found the trial court to be without authority not to sentence Molina to the five year sentence.

So also in this case. Section 1936 of the Statutory Construction Act of 1972 (1 Pa.C.S. § 1501 et seq.) provides that “[wjhenever the provisions of two or more statutes finally enacted by different General Assemblies are irreconcilable, the statute latest in date of final enactment shall prevail.” Combining this principle of statutory construction with the purpose behind section 9712, we now vacate the sentences imposed below and remand for resentencing. Jurisdiction relinquished.

      . § 9712. Sentences for offenses committed with firearms
      (a) Mandatory Sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years total confinement notwithstanding any other provisions of this title or other statute to the contrary.
      (b) Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
      (c) Authority of court in sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
      (d) Appeal by Commonwealth. — If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.
      (e) Definition of firearm. — As used in this section ‘firearm’ means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.

      . Ohio has held an unarmed accomplice as subject to its mandatory sentence for possession of a firearm. State v. Moore, 16 Ohio St.3d 30, 476 N.E.2d 355 (1985); similarly, provided knowledge of possession of the firearm is established, an accomplice is so held in State v. Rice, 102 Wash.2d 120, 683 P.2d 199 (1984). However, Florida law is evolving contra, as in Taylor v. State, 467 So.2d 367 (Fla.App. 2 Dist. 1985) in which it was held that vicarious possession of a firearm, such as by a cohort, while sufficient to sustain a conviction for robbery, is not sufficient "possession” to justify imposition of a minimum mandatory period of imprisonment under the statute providing for minimum confinement for possession of a firearm.


author: PER CURIAM: BROSKY, Judge,

text:
    509 A.2d 1296
    COMMONWEALTH of Pennsylvania v. James ELIASON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 26, 1985.
    Filed May 27, 1986.

      Stephen L. Shields, Bethlehem, for appellant.
    John F. Spirk, Assistant District Attorney, Easton, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and HESTER, JJ.
   PER CURIAM:

On December 3, 1984, appellant was adjudged guilty of driving under suspension, 75 Pa.C.S. § 1543(b), and driving an unregistered vehicle, 75 Pa.C.S. § 1301, as a result of operating a three-wheeled vehicle on a public highway for approximately ten seconds. Immediately following trial, appellant was sentenced to ninety days incarceration and a $1,000 fine. Post-verdict motions were filed, argued, and denied on May 6, 1985. From that order, appellant filed this appeal.

In appeals from criminal convictions, the notice of appeal must be filed within thirty days of sentence. See Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985); Pa.R.A.P. 903(a). Since appellant was sentenced on December 3, 1984, he should have filed a notice of appeal within thirty days of that date. Instead, appellant filed his post-verdict motions within thirty days of December 3, 1984. These motions were, in fact, timely filed, and were considered and disposed of by the lower court. Nevertheless, his notice of appeal filed June 6, 1985, is untimely since it was beyond the thirty-day time period which began running on December 4, 1984.

We cannot, however, quash this appeal as untimely for the following reasons. The lower court improperly pronounced verdict and sentence simultaneously. Commonwealth v. Martin, supra; Commonwealth v. Ivey, 307 Pa.Super. 274, 453 A.2d 349 (1982). Furthermore, the lower court failed to inform appellant of his appellate rights, although he was apprised of his right to file post-verdict motions. Our rules of appellate procedure require the trial judge to advise a defendant on the record at the time of sentencing of his right to file an appeal and the time within which he must exercise that right. See Pa.R.Crim.P. 1405. In light of these procedural errors, we cannot deny appellant his right to appellate review.

Appellant raises three issues on appeal. First, he contends that his conviction for driving an unregistered motor vehicle cannot stand inasmuch as a three-wheeler is incapable of being registered. Second, he argues that the court erred in convicting him of driving under suspension when a three-wheeler is not a motor vehicle within the meaning of 75 Pa.C.S. § 1543(b). Finally, appellant asserts that the infraction with which he was charged was de minimis, so it does not warrant a conviction. Having closely reviewed appellant’s arguments, we conclude that they lack merit; we therefore affirm.

The offense of driving an unregistered vehicle prohibits

any person to drive or for an owner knowingly to permit to be driven upon any highway any vehicle of a type required to be registered under this chapter which is not registered____

75 Pa.C.S. § 1301(a). “Motor Vehicle” is defined as a “vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated upon rails.” 75 Pa.C.S. § 102. Appellant argues that his three-wheeler cannot be registered because it lacks appropriate equipment needed to comply with the registration laws of this Commonwealth. Consequently, he asserts that he should not be convicted of driving an unregistered vehicle since the vehicle cannot be registered. However, to adopt appellant’s logic would be to permit any type of unregistered vehicle on the public roadway merely because it lacks appropriate equipment. Such a result is ludicrous and renders superfluous those provisions of the Vehicle Code which detail the equipment necessary for a vehicle to be properly registered and operable on public highways.

Appellant argues in the alternative that his three-wheeler does not qualify as a vehicle within the meaning of the Code, and therefore, the registration requirements do not apply. In support of this argument, appellant cites Siefert v. Nationwide Insurance Co., 289 Pa.Super. 160, 432 A.2d 1101 (1981). In that case, we held that a trail bike was not a motor vehicle. However, that characterization involved an interpretation of motor vehicles for purposes of the No-fault Act. Nowhere did the court hold that a dirt bike was not a motor vehicle for purposes of the Vehicle Code. As the lower court correctly noted, the purposes of the No-fault Act and the Vehicle Code are decidedly different. The No-fault Act is concerned with providing prompt and adequate basic loss benefits to motor vehicle victims and the survivors of deceased victims. See Bills v. Nationwide Mutual Insurance Co., 317 Pa.Super. 188, 463 A.2d 1148 (1983). The purpose of the Vehicle Code is to insure public safety upon the streets and highways of the Commonwealth. Thus, we find that the three-wheeler, in that it is a self-propelled vehicle, falls within the definition of “motor vehicle” and should have complied with the registration provisions of the Code or it should not have been driven upon a public street. The conviction for driving an unregistered vehicle was, therefore, proper insofar as appellant’s first argument is concerned.

The above discussion also addresses appellant’s second issue that a three-wheeler does not constitute a motor vehicle for purposes of driving under suspension. Clearly, if the three-wheeler falls within the definition of motor vehicle for one section of the Code, it qualifies under any other provision as well. Appellant concededly was operating the vehicle with a suspended license, and cannot point to error on the part of the lower court for so holding.

Finally, appellant’s third argument must be rejected. Section 312 of the Crimes Code provides:

The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:
(1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense.

18 Pa.C.S. § 312. Appellant argues that the facts of this case do not warrant the stigma of a criminal conviction, and that the trial judge abused his discretion in failing to dismiss the charges.

In Commonwealth v. Houck, 233 Pa.Super. 512, 335 A.2d 389 (1975), the accused was charged with harassment by communication for calling an acquaintance of many years “lower than dirt” and “morally rotten.” We upheld the decision of the trial judge who invoked § 312 and dismissed the charges as a “trifling matter.” That case also upheld the constitutionality of § 312 by finding that there were adequate standards and guidelines for the trial judge to follow in his application of that statute.

Herein, we cannot agree that the trial judge abused his discretion. Appellant, whose license had been suspended for driving under the influence, was seen operating a three-wheeler in a residential district of Northampton County. The entire neighborhood was some distance from the main highway. He drove the three-wheeler from his home, which was the last house in the development, approximately one block on 12th street and turned right into the Bethlehem Township playground. According to the Chief of Police of Bethlehem Township, appellant was traveling the public street for approximately eight seconds.

The use of these vehicles on public highways was recently discussed by this court in Commonwealth v. Predmore, 347 Pa.Super. 195, 500 A.2d 474 (1985). Appellant was similarly operating an unregistered three wheel all terrain vehicle on a public highway while his operating privilege was suspended. In upholding his conviction for driving while under suspension, we stated:

Use of the highways is a privilege. Appellant’s license was originally suspended for abuse of that privilege. It would frustrate the public safety purpose of the operator licensing laws to allow appellant to operate a vehicle on the highway merely because his use of the vehicle off the highway would not require the Commonwealth’s consent.

Id., 347 Pa.Superior Ct. at 199, 500 A.2d at 475-476. We affirmed appellant’s conviction in that instance, and are compelled to reach the same conclusion herein. Notwithstanding the brevity of the offense committed against the Commonwealth, this was the type of conduct which the legislature sought to prevent. Just as we upheld a shoplifting prosecution for $1.59 in Commonwealth v. Campbell, 273 Pa.Super. 407, 417 A.2d 712 (1980), so must we uphold appellant’s momentary infraction of the law. The seriousness of an offense cannot always be determined by the quantity or quality of the injury to the Commonwealth. Appellant’s contention that his offense was de minimis must be rejected.

Judgment of sentence affirmed.

BROSKY, J., files his dissenting opinion.

BROSKY, Judge,

dissenting:

I must respectfully dissent. I would find that under 18 Pa.C.S. § 312, appellant’s conduct amounted to no more than a de minimis infraction and I would, accordingly, reverse the judgment of sentence and discharge appellant.

In this case, the majority holds that appellant’s eight seconds on a public street warrants the condemnation and stigma of a criminal conviction. In so holding, the majority reasons that since this Court upheld a shoplifting prosecution for $1.59 in Commonwealth v. Campbell, 273 Pa.Super. 407, 417 A.2d 712 (1980), we must uphold appellant’s conviction. However, to compare different offenses and different circumstances to determine whether an infraction is de minimis is, to use a cliche, to compare apples to oranges. The application of § 312 must inherently turn on the offense involved in and the circumstances of each particular case. b Other cases are of little value in resolving a § 312 question. The fact that this Court held that § 312 did not apply to a shoplifting prosecution for $1.59 presents no greater reason for affirming appellant’s conviction than the fact that we held that § 312 applied to a harassment prosecution for calling an acquaintance “morally rotten” presents for reversing appellant’s conviction. Thus, a question of whether an infraction is de minimis must be essentially resolved by reference to the provisions of § 312 and the circumstances surrounding the infraction.

In the instant case, I would find that § 312(a)(2) applies to appellant’s conduct. This section provides the following:

(a) General rule. — The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:
(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction;

(emphasis added).

While I have no quarrel with the majority’s conclusion that, under Commonwealth v. Predmore, 347 Pa.Super. 195, 500 A.2d 474 (1985), appellant’s conduct was of the type the legislature has sought to prevent in order to protect the public safety, an inquiry under § 312(a)(2) cannot end with this conclusion. The question that remains to be answered is whether appellant threatened the public safety “only to an extent too trivial to warrant the condemnation of conviction.” I am firmly convinced that the eight seconds appellant spent on a public highway was indeed too trivial a threat to the public safety to warrant the stigma of a criminal conviction. If appellant’s conduct did not constitute a de minimis infraction, I would be hard-pressed to conceive of conduct that would be encompassed by § 312.

Certainly, in recent years our criminal justice system has been criticized for failing to convict those whose conduct deserves such condemnation. However, the prosecution of those whose actions do not warrant conviction leaves the system open to more, not less, of such criticism. Appellant’s actions do not warrant the condemnation of conviction, and, accordingly, I dissent.

      . That rule provides that “the notice of appeal ... shall be filed within 30 days after the entry of the order from which the appeal is taken.”

      . In Commonwealth v. Picker, 293 Pa.Super. 381, 384, 439 A.2d 162, 163 (1981), we suggested that the proper procedure for litigants to follow in this situation would be to file a motion to vacate the improperly imposed judgment of sentence in order to allow for the filing of post-verdict motions.

      . Appellant also challenges the constitutionality of the mandatory sentence provided for a conviction of 75 Pa.C.S. § 1543(a), driving while operating privilege is suspended or revoked. Although appellant did not raise this argument prior to his statement of matters complained of on appeal, a challenge to the legality of a sentence can never be waived. Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985). This issue was recently addressed by this court in Commonwealth v. Hoover, 343 Pa.Super. 372, 494 A.2d 1131 (1985). Therein, we upheld the constitutionality of this provision. Therefore, this issue presents no grounds for relief.

      . See 75 Pa.C.S. §§ 4303(b), 4535(a), to name but a few.

      . I note that in Campbell the entire discussion of the de minimis issue consisted of the following: “Additionally appellant contends that she should be discharged because her violation of section 3929 [retail theft] was de minimis. We find no merit to this contention.”

      . See Commonwealth v. Houck, 233 Pa.Super. 512, 335 A.2d 389 (1975).

      . I note that in Predmore, the issue of whether the defendant’s conduct constituted a de minimis infraction was neither raised nor discussed.


text:
    509 A.2d 1301
    COMMONWEALTH of Pennsylvania, Appellant, v. Harold L. SCOTT, Sr.
    Superior Court of Pennsylvania.
    Submitted March 10, 1986.
    Filed May 19, 1986.
    Kenneth J. Benson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant. Harold C. Scott, Pittsburgh, for appellee.
    Before WICKERSHAM, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by the Commonwealth from the lower court’s grant of appellee’s, Harold Scott, Post Conviction Hearing Act Petition reversing judgment of sentence and ordering appellee discharged.

The Commonwealth urges us to review the following issues: whether appellee’s retrial and conviction of voluntary manslaughter violated the prohibition against double jeopardy; and whether appellee waived his right to assert the claim of double jeopardy.

The facts, stipulated to by the parties, are as follows:

In 1975 appellee was convicted, by a jury, of first degree murder and violation of the Uniform Firearms Act and sentenced to life imprisonment. Upon appeal to the Supreme Court, appellee’s conviction was reversed on grounds that the lower court erred in refusing to allow the defense to present evidence that would negate the specific intent needed for conviction of first degree murder. In January, 1979 appellee’s second trial commenced wherein the jury found him guilty of third degree murder and the firearms violation. On the verdict slip returned by the jury appellee was found not guilty of first degree murder, voluntary manslaughter or involuntary manslaughter, crimes for which evidence was presented at trial and the jury charged. After denial of his post trial motions appellee was sentenced to ten to twenty years imprisonment. Appellee again appealed to the Supreme Court and for the second time his conviction was overturned this time on a finding that appellee was denied a fair trial when the lower court ruled that a defense witness could be cross-examined about defendant’s two prior arrests neither of which led to a conviction. In 1982 appellee was tried a third time by the court sitting without a jury. At this non-jury trial he was adjudged guilty of voluntary manslaughter and the firearms violation. Defense counsel, by oral motion, waived appellee’s right to file post verdict motions and appellee was sentenced to six to twelve years incarceration. He was released from custody shortly thereafter for credit of time served following his first conviction. On October 5, 1985 appellee filed a PCHA petition asserting a claim of double jeopardy and seeking a discharge. Appellee contended that he was acquitted of voluntary manslaughter when at his second trial the jury returned a verdict of “not guilty” of voluntary manslaughter. Thus, he argues, his conviction of voluntary manslaughter after his third trial violated principles of double jeopardy. Without conducting an evidentiary hearing the lower court granted appellee’s petition entering an order vacating the judgment of sentence and discharging appellee. In its opinion in support of the order the lower court stated that the holding of Commonwealth v. Beck, 502 Pa. 78, 464 A.2d 316 (1983) is directly on point and controls appellee’s claim that his third conviction on the charge of voluntary manslaughter violates his constitutional guarantee against being placed twice in jeopardy since he was found not guilty of this charge by a jury in his second trial.

In Beck, supra the appellant was tried on the charges of murder, manslaughter and conspiracy. Following trial, the jury returned the following verdict: not guilty of first degree murder; not guilty of voluntary manslaughter, not guilty of criminal conspiracy; and guilty of third degree murder. After post verdict motions were denied and a sentence of imprisonment imposed, Beck appealed to the Supreme Court. On appeal judgment of sentence was reversed and a new trial granted.

Beck was retried before a jury on charges of third degree murder and voluntary manslaughter. Appellant Beck filed no pretrial motions nor did he make any objection to the voluntary manslaughter charge prior to or during the evidentiary phase of the retrial. The jury returned a verdict of guilty of voluntary manslaughter. The appellant objected to the recording of the verdict on the grounds that his conviction of voluntary manslaughter violated his constitutionally protected right to be free from being twice placed in jeopardy of the same offense. His objection was based on the noteworthy fact that he had been previously found not guilty of the identical crime on the same facts. Appellant’s objection was overruled and his post trial motions which included a motion in arrest of judgment were denied. On appeal to the Supreme Court Beck argues that his conviction on retrial of voluntary manslaughter, a crime of which he previously was found not guilty, and the judgment of sentence imposed by the trial court are invalid. A majority of the Supreme Court reversed Beck’s conviction holding that:

In the former prosecution of the appellant the jury specifically acquitted him of voluntary manslaughter. This acquittal prevents further prosecution for the same offense based on the same facts. “The verdict of a jury, upon a valid indictment, in a court of competent jurisdiction, acquitting the defendant of the fact is an absolute bar to any subsequent prosecution for the same offense.” Commonwealth v. McEvans, 92 Pa.Super. 124, 128 (1927); Commonwealth v. Kroekel, 121 Pa.Super. 423, 183 A. 749 (1936)....
The appellant Beck was found guilty of third degree murder and not guilty of voluntary manslaughter in his first trial. On appeal, the appellant was awarded a new trial. More than a century ago this court said: “[Wjhere there has been an acquittal on one count, and a conviction on another,' a new trial can be granted only on the count on which there has been a conviction----” Hollister v. Commonwealth, 60 Pa. 103 (1869). Since appellant was found not guilty of voluntary manslaughter, he could not be tried again on that charge. The new trial granted to appellant Beck in this case could only be on the charge for which he was convicted-third degree murder. The court does not have the right to grant a new trial on a charge for which the appellant was acquitted. Commonwealth v. Kroekel, supra.

Id., 502 Pa. at 81, 82, 464 A.2d at 317, 318.

In Beck the Commonwealth argued that appellant waived the issue of his prior acquittal of the charge of voluntary manslaughter because he failed to raise the question before the case went to the jury. The Court opined:

We cannot agree with the Commonwealth’s contention under the circumstances of this case. The doctrine of waiver has no application in a situation such as this where the appellant was previously acquitted of the charge against him. The issue of former acquittal is similar to the issue of subject matter jurisdiction. It may be raised at any time, even after the jury returns a verdict. Such a verdict is absolutely invalid as is any resulting sentence which may be imposed. This is so because the conviction of a crime on the same facts for which the accused was formerly acquitted in a prior trial is a nullity.

Id., 502 Pa. at 83, 464 A.2d at 318.

In the case sub judice the Commonwealth submits that Beck, supra, was wrongly decided and “to the extent it cannot be distinguished from the instant case, it ought not be followed.” The defect which the Commonwealth views as inherent in the Beck opinion is the majority’s failure to consider the effect a finding of defendant’s guilt on one charge has on a simultaneous finding of not guilty as to a lesser included offense. In other words, the Commonwealth avers that voluntary manslaughter is a lesser included offense of third degree murder, the crime of which appellee was convicted at his second trial. Accordingly, the jury’s verdict of “not guilty of voluntary manslaughter” represents nothing more than a rejection of voluntary manslaughter as an appropriated verdict and is not an acquittal of the crime. The Commonwealth further advances that the court in Beck, supra, relied “too heavily and too instinctively upon a hypertechnical interpretation of the term acquittal.” The Commonwealth’s argument is an adoption of Justice Nix’s (now Chief Justice Nix) dissent in Beck wherein he stated:

The verdict on the charge of voluntary manslaughter is mere surplusage born of the jury’s misunderstanding as to the proper procedure to be followed in announcing its decision; it represents neither a factual resolution nor a finding in appellant’s favor. Thus it cannot be said to have the effect of an acquittal, and was no bar to appellant’s reprosecution for voluntary manslaughter.

Id., 502 Pa. at 86, 464 A.2d at 320.

Our analysis of the record reveals that factually and procedurally this case is on point with Beck, supra. Here, appellee was convicted of third degree murder at his second trial. As the result of a successful appeal, appellee was retried on the same charge arising out of the same set of facts and adjudged guilty of voluntary manslaughter a crime of which he was specifically acquitted at his second trial by the jury. Clearly, appellee’s case falls within the scenario of Beck, supra. While we agree with the Commonwealth that a defendant is not placed twice in jeopardy when he is retried after a successful appeal, the right to be free from successive prosecutions is violated when a defendant is prosecuted for the same offense of which he was acquitted. Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978); Beck, supra. We are not persuaded by the Commonwealth’s argument that Beck, supra, can be deemed inapplicable to the facts-herein merely because its dissent describes another view to the issue raised. Nor can we as an intermediate appellate court alter the decisional law of our Supreme Court. Neither this court nor any lower court may dismiss a Supreme Court decision. The orderly administration of justice would become impossible if the decisions of the Court of last resort could be thus ignored. Rambo v. Commissioner of Police, 301 Pa.Superior Ct. 135, 111, 447 A.2d 279 (1982); Commonwealth v. Butch, 257 Pa.Superior Ct. 242, 390 A.2d 803 (1978).

The Commonwealth also maintains that the issue of appellee being placed twice in jeopardy is not properly before us on appeal as it was waived when defense counsel, at the conclusion of appellee’s third trial, orally waived the right to file post trial motions.

The opinion in Beck, supra, makes it clear that the doctrine of waiver has no application in a situation such as this where appellee was previously acquitted of the charge against him. The court analogized acquittal to subject matter jurisdiction in that it may be raised at any time even after the jury returns a verdict. Cf. Commonwealth v. Helms, 352 Pa.Superior Ct. 65, 506 A.2d 1384 (1986) citing Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974) aff'd. 468 Pa. 13, 359 A.2d 788 (1976) (objections to subject matter jurisdiction may be made at any stage in the proceedings by the parties or the court on its own motion); Commonwealth v. Adams, 350 Pa.Superior Ct. 506, 504 A.2d 1264 (1986) (despite numerous opportunities to do so appellant’s failure to raise claim of illegal sentence does not bar appellate consideration of the issue). Therefore, appellee’s waiver of his right to file post trial motions does not preclude his raising the issue of double jeopardy in a PCHA petition.

For the aforementioned reasons we affirm the lower court’s order vacating the judgment of sentence and discharging appellee.

      . 42 Pa.C.S.A. § 9541 et seq.

      . We note that appellee asserted his double jeopardy claim in a PCHA petition. He did not allege ineffective assistance of trial counsel for failure to preserve appellee's post trial rights.

      . The record indicates that appellee, prior to his third trial, filed a pro se "Motion in prohibition of prosecution and to dismiss the indictment with prejudice to the Commonwealth.” Appellee’s counsel did not pursue the motion and the trial court did not address it.


text:
    509 A.2d 1304
    Henry MAY v. The TRAVELERS INSURANCE COMPANY and Texas Eastern Transmission Corporation. Appeal of the TRAVELERS INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 6, 1986.
    Filed May 29, 1986.

      David M. McCormick, Philadelphia, for appellant.
    Maria Zulick, Philadelphia, for appellee.
    Before CAVANAUGH, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

Henry May sustained injuries when he was involved in a motor vehicle accident on September 25, 1982. At the time of the accident Mr. May was the occupant of a vehicle owned by the United States government and operated as part of an Army Reserve convoy. The Army Reserve truck was struck in the rear by a vehicle owned by Texas Eastern Transmission Corporation (Texas Eastern).

As Mr. May had no insurance of his own, he applied to the Pennsylvania Assigned Claims Plan (the Plan) seeking no-fault benefits. The Plan assigned his claim to the Travelers Insurance Company (Travelers). Travelers denied Mr. May’s claim and he thereafter instituted this action against Travelers. Travelers joined Texas Eastern as an additional defendant contending that, if Mr. May was entitled to benefits, those benefits should be supplied by Texas Eastern.

The case proceeded to arbitration with a resultant award in favor of Mr. May and against only the additional defendant, Texas Eastern. From that award Texas Eastern appealed to the Court of Common Pleas. Thereafter, Texas Eastern filed a Motion for Summary Judgment, which was opposed by Travelers. On July 31, 1985, the lower court entered an order granting judgment in favor of Texas Eastern. From that order Travelers timely appeals, and raises two issues:

I. WHETHER A FEDERAL EMPLOYEE INJURED IN A MOTOR VEHICLE ACCIDENT WHILE OCCUPYING A FEDERALLY OWNED VEHICLE, IS ENTITLED TO RECEIVE BENEFITS UNDER THE PENNSYLVANIA NO-FAULT MOTOR VEHICLE INSURANCE ACT (No-fault Act)
II. WHETHER SUCH EMPLOYEE, IF ENTITLED TO NO-FAULT BENEFITS, IS TO BE TREATED UNDER THAT ACT AS THE OCCUPANT OF AN UNINSURED MOTOR VEHICLE OR IS TO BE TREATED AS A PEDESTRIAN.

We shall discuss the two arguments presented by appellant together. Travelers’ first argument is that the No-fault Act has no application to accidents involving vehicles owned by the federal government. Travelers contends that the federal government is exempt under the Supremacy Clause of the United States Constitution from any of the requirements of the Pennsylvania No-fault Act. It believes that to allow Henry May to receive no-fault benefits would be to grant to the federal government and its employees free coverage for such benefits at the expense of those not exempt from participation in the no-fault system.

Appellant’s second argument is that if Henry May is to receive no-fault benefits, May should be treated as a pedestrian. The other vehicle involved in the accident, that of Texas Eastern, would then pay the benefits.

These same arguments were raised in Bell v. United States of America, Department of Labor, 560 F.Supp. 515 (E.D.Pa.1983), aff'd, 754 F.2d 490 (3rd Cir.1985). In that case the United States Court of Appeals for the Third Circuit was presented with facts strikingly similar to those now before this Court. In Bell, a federal employee was a passenger in a federally owned truck which was involved in an accident. Bell, the federal employee, was acting within the scope of his employment. Bell sustained severe injuries. He had no automobile insurance of his own, as he did not own a vehicle, or reside with the owner of a vehicle, and was not the named insured under any No-fault motor vehicle insurance policy. After Bell received federal workmen’s compensation he filed an application with the Pennsylvania Assigned Claims Plan. The Plan initially rejected the application. Following suit in common pleas court, the Plan assigned Bell’s claim to Travelers Insurance Company. Travelers denied the claim and, when Bell sued in federal district court, Travelers raised arguments similar to those raised in the case now before this Court. After examining the applicable Pennsylvania decisions, as well as the language of the No-fault Act and the policy behind it, the federal district court concluded that Bell was entitled to recover No-fault benefits from Travelers under the Plan. On appeal, the United States Court of Appeals for the Third Circuit affirmed.

The federal district court found that the federal vehicle was a “motor vehicle” as the terms are used in the No-fault Act. The Court of Appeals found that although the federal government could not be compelled to reimburse Travelers, Travelers remained responsible for Bell’s No-fault payments. The Court of Appeals explicitly ruled that the insurer of the other car involved in the accident was not the proper source of recovery; the injured employee was not to be treated as a pedestrian. Rather, the Plan was the proper source of security, and Travelers was required to fulfill its obligations as the insurance company assigned under the Plan.

We find Bell’s interpretation of Pennsylvania law to be accurate and its reasoning to be persuasive. That case is factually similar to the one now before this Court, and appellant has presented no compelling reason to dissuade us from following the rationale and finding of Bell. We believe that federally owned vehicles come within the No-fault Act’s definition of motor vehicles, and that accidents involving these motor vehicles can properly be the subject of assignment under the Assigned Claims Plan.

Accordingly, the trial court’s order granting summary judgment in favor of Texas Eastern Transmission Corporation is affirmed.

Order affirmed.

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


author: MONTEMURO, Judge:

text:
    509 A.2d 1306
    NPW MEDICAL CENTER OF N.E. PENNA., INC. v. LS DESIGN GROUP, P.C., the Ballinger Company, Corbit’s, Inc., Lewis Reuter, IV, Turner Construction Company and Sordoni Construction Company, T/A the Joint Venture of Turner Construction Company and Sordoni Construction Company v. PENNSYLVANIA GAS AND WATER CO., American Casualty Co. of Reading and Republic Steel Co. Appeal of TURNER CONSTRUCTION COMPANY and Sordoni Construction Company T/A the Joint Venture of Turner Construction Co. and Sordoni Construction Co.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1986.
    Filed May 30, 1986.

      Mark L. Parisi, Philadelphia, for appellants.
    Thomas Martin, Philadelphia, for appellee.
    Before ROWLEY, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections of a proposed additional defendant to the complaint filed against it.

On March 2, 1984, plaintiff, NPW Medical Center of N.E. Penna., Inc., (hereinafter “NPW”) filed a complaint against several defendants, including appellant, The Joint Venture of Turner Construction Co. and Sordoni Construction Co. (hereinafter “Turner/Sordoni”). The complaint alleged faulty workmanship in the defendants’ design and installation of a water system at NPW which resulted in premature corrosion of the pipes. Service of the complaint was effected on Turner/Sordoni on March 5, 1984. Its answer was filed on August 14, 1984.

On November 20, 1984, the parties of record as of that date entered into a stipulation allowing Turner/Sordoni to file a complaint against an additional defendant, Pennsylvania Gas and Water Co. (hereinafter PG & W), appellee herein. The stipulation was approved by the trial court on November 21, 1984. On the same day, appellant filed its complaint against PG & W alleging that the water which PG & W had supplied to NPW was corrosive and incompatible with the pipes which Turner/Sordoni had installed. The complaint, based on theories of negligence, products liability, and breach of warranty, sought to hold PG & W either solely liable to NPW or liable to Turner/Sordoni for contribution and/or indemnity.

PG & W filed preliminary objections to Turner/Sordoni’s complaint on the basis, inter alia, that its joinder was untimely under Pa.R.C.P. 2253. On March 12, 1985, the trial court, agreeing that the attempted joinder was untimely, entered an order sustaining PG & W’s preliminary objections and dismissing the complaint against it. Turner/Sordoni brought the instant appeal, raising a single question for our review: Did the trial court err in dismissing appellant’s complaint against PG & W on the basis of noncompliance with Pa.R.C.P. 2253? The rule reads as follows:

Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown. (Emphasis added).

The attempted joinder in the instant case was made more than six months beyond the sixty (60) day limit provided by Rule 2253. The trial court refused to allow joinder based on its conclusion that appellant had failed to establish any reasonable explanation for the lengthy delay. Trial court’s opinion at 2.

It is clear that the burden of demonstrating sufficient cause to allow the unseasonable joinder of an additional defendant rests with the defendant. Kovalesky v. Esther Williams Swimming Pools, 345 Pa.Super. 95, 497 A.2d 661 (1985); Welch Foods, Inc. v. Bishopric Products, Co., 254 Pa.Super. 256, 385 A.2d 1007 (1978). Although Rule 2253 neither specifies what constitutes sufficient cause nor delineates the factors to be taken into consideration, our Supreme Court has stated that, in this regard:

The court ... should be guided by the objectives sought to be achieved by use of the additional defendant procedure in conjunction with the purpose for which a 60-day limitation was placed on its unrestricted use. In a capsule, these rules are an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties ... without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation.

Zakian v. Liljestrand, 438 Pa. 249, 256, 264 A.2d 638, 641 (1970)(citation omitted). This court has required that a defendant seeking late joinder must establish some reasonable justification for its delay. Desiderio v. R & R Tire Center, Inc., 242 Pa.Super. 135, 363 A.2d 1197 (1976); Moore v. Howard P. Foley Co., 235 Pa.Super. 310, 340 A.2d 519 (1975). Finally, the question of whether sufficient cause has been established so as to permit an extension of time is a matter resting within the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of that discretion. Zakian v. Liljestrand, supra; Kovalesky v. Esther Williams Swimming Pools, supra; Lamoree v. Penn Central Transportation Co., 238 Pa.Super. 380, 357 A.2d 595 (1976). Therefore, the issue before this court is whether the trial court abused its discretion in concluding that appellant did not establish sufficient cause to permit late joinder. '

Appellant first alleges that sufficient cause was established because, until it had completely investigated the allegations contained in plaintiffs complaint, it could not have known of PG & W’s involvement in the case. Appellant implies that the necessary information regarding PG & W was not obtainable within the sixty (60) days provided for joinder in Rule 2253.

Appellant’s argument is most unconvincing. Plaintiff’s complaint specifically averred that appellant had approved certain materials for the pipes, “[notwithstanding that the incoming water supply to NPW is highly corrosive----” (Plaintiff’s complaint at paragraph 7). Thus, from the date on which it received the complaint, appellant was placed on notice that an issue existed as to a connection between the allegedly corrosive nature of the water supplied to NPW and the premature corrosion of the pipes. The identity of the supplier of the water to NPW was easily discoverable within sixty (60) days, given any kind of reasonably diligent pre-trial investigation. Appellant did not file its complaint against PG & W until November of 1984, more than eight months after its receipt of plaintiff’s complaint. We must agree with the trial court that appellant failed to proffer a reasonable excuse for its delay in attempting to join PG & W as an additional defendant.

Appellant responds with a novel argument. It contends, citing Zakian v. Liljestrand, supra, that the sole purpose of Rule 2253 is to prevent the plaintiff from suffering any prejudice in the prosecution of its lawsuit as a result of the defendant’s delay in joining an additional defendant. Since plaintiff in the instant case agreed to the late joinder of PG & W, appellant would have us hold that it is therefore not required to establish any reasonable cause for its delay. This question, whether the “cause shown” requirement of Rule 2253 should be dispensed with when the plaintiff agrees to late joinder of an additional defendant, is one of first impression in this Commonwealth. After careful consideration of its merits, we must reject appellant’s contention.

First, it is certainly true that Zakian v. Liljestrand, supra, states that, in determining whether sufficient cause has been shown, the court must consider that one of the purposes of Rule 2253 is to prevent the plaintiff from suffering prejudice regarding the prosecution of its portion of the litigation due to the defendant’s delay. However, the rule is clearly premised on a more general purpose as well, i.e., to ensure the expeditious resolution of multi-party lawsuits. As stated in Zakian v. Liljestrand, “these rules are an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties.” Id. 438 Pa. at 256, 264 A.2d at 641 (emphasis added). This purpose would not be furthered by allowing defendants seeking joinder of an additional defendant to procrastinate and respond to the court at their convenience. “Before the defendant can ask the court to help him secure a just, speedy and inexpensive determination of the suit by permitting late joinder, he must have acted expeditiously himself.” Id., 438 Pa. at 258, 264 A.2d at 642-43. It cannot be denied that, in the instant case, appellant did not act expeditiously.

Second, were we to adopt appellant’s position that it need not show any cause for its delay, we would be ignoring the clear language of Rule 2253, which does not limit the requirement that cause be shown only to cases where the plaintiff objects to the joinder.

In concluding that the trial court was correct in denying the late joinder, we are mindful of the general principle that the procedural rules applicable to controversies involving third party procedure should be liberally construed to avoid a multiplicity of lawsuits. Ianni v. Pantalone, 238 Pa.Super. 548, 361 A.2d 772 (1976). However, we believe that to conclude otherwise would be to emasculate Rule 2253 by ignoring its clear requirement that cause must be shown for delay in joinder. We cannot, within the permissible scope of review, hold that the court below abused its discretion in finding that appellant had not established reasonable justification for the late joinder.

Order affirmed.

      . Turner/Sordoni was the general contractor for the NPW project.
        Prescott v. Prescott, 284 Pa.Super. 430, 435, 426 A.2d 123, 126 (1981).

      . The preliminary objections also asserted that Turner/Sordoni’s complaint failed to state a cause of action against PG & W.
      We note that although the trial court approved the stipulation allowing PG & W’s joinder, PG & W was not a party to that stipulation. An additional defendant is entitled to contest his joinder by filing preliminary objections to the original defendant’s complaint. This opportunity is especially necessary where the initial allowance of joinder was ex parte. McDevitt v. Avis Rent-A-Car, 443 Pa. 49, 277 A.2d 815 (1971). See also Welch Foods, Inc. v. Bishopric Products, Co., 254 Pa.Super. 256, 385 A.2d 1007 (1978).

      . Abuse of discretion has been defined as follows:
      An abuse of discretion does not necessarily imply a willful abuse, but if, in reaching a conclusion, the law is overriden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.

      . Appellant is mistaken that this issue was decided by the memorandum opinion supporting this court’s per curiam order in Dilbeck v. Bar-Van Enterprises, Inc., 221 Pa.Super. 756, 289 A.2d 137 (1972). Memorandum opinions are unpublished and "may not be cited as precedent in any brief, argument or subsequent opinion.” Business of the Superior Court of Pennsylvania, Internal Operating Procedures V.8 at 9 (1983).

      . One situation where late joinder may result in prejudice to the plaintiff exists where the original parties have engaged in discovery. Because the additional defendant will not have participated in such proceedings, plaintiff’s suit might have to be delayed in order to allow the additional defendant to conduct discovery. See Zakian v. Liljestrand, 438 Pa. 249, 264 A.2d 638 (1970); Welch Foods, Inc., v. Bishopric Products Co., 254 Pa.Super. 256, 385 A.2d 1007 (1978).

      . Appellant will now have to file a separate lawsuit against PG & W. We note that, unlike the circumstances existing in our recent case, National Liberty Life Ins. Co. v. Kling Partnership, 350 Pa.Super. 524, 504 A.2d 1273 (1986), there are no obstacles to the filing of such a lawsuit. In National Liberty, we found that late joinder was appropriate where the defendant's right to institute a separate action for contribution against the additional defendant was destroyed by a settlement between the plaintiff and the additional defendant. In the instant case, appellant’s substantive rights have not been impaired by the refusal to allow late joinder.