text:
    474 A.2d 1172
    Donald F. SWARTZ and Norma H. Swartz, his wife, Appellants, v. GENERAL ELECTRIC COMPANY, Sam Levin Furniture Company v. ROBERTSHAW CONTROLS COMPANY.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1983.
    Decided March 23, 1984.
    Reargument Denied June 4, 1984.

      Barbara Clements, Pittsburgh, for appellants.
    Patrick R. Riley, Pittsburgh, for General Electric, appellee.
    Michael W. Burns, Pittsburgh, for Levin Furniture, appellee.
    William David Geiger, Pittsburgh, for Robertshaw, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   PER CURIAM:

Appellants, Donald F. Swartz and Norma H. Swartz, his wife, bring this appeal from the granting of compulsory non-suits as to the three appellees.

Our standard of review in an appeal from a compulsory non-suit is as follows:

“On appeal from a compulsory nonsuit the plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiffs favor. A compulsory nonsuit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion.” Paul v. Hess Bros., 226 Pa.Super. 92, 94-95, 812 A.2d 65, 66 (1973) (citations omitted). In a trespass case, a plaintiff need not exclude every other reasonable possibility that could have caused the accident. “It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability.” Jones v. Treegoob, 433 Pa. 224 [225], 230, 249 A.2d 352, 355 (1969). See also Cornell Drilling Company v. Ford Motor Company, 241 Pa.Super. 129, 135, 359 A.2d 822, 825 (1976).

Employing this standard, the evidence elicited at trial established the following:

On December 12, 1973, Mr. Swartz began cooking oxtail soup on the range manufactured by appellee General Electric. The range had been purchased from appellee Sam Levin Furniture on February 13, 1973, and was under a one year warranty from General Electric. Mr. Swartz started the cooking process at approximately 1:45 to 2:00 p.m. planning to permit the soup to come to a hard boil and then to simmer for an additional four to five hours or until “tender.”

At approximately 2:40 p.m., the Swartzes left their home. Prior to leaving, Mr. Swartz checked the soup and found it to be simmering properly. Mr. Swartz also indicated that he had on many previous occasions left the oxtails on simmer and had left the residence.

Sometime between 3:30 to 4:00 p.m. on this day, James Fox, the Assistant Fire Chief for the New Stanton Volunteer Fire Company, spotted smoke rising from the direction of the Swartzes’ residence. Mr. Fox then proceeded to the residence and upon arrival, observed that the residence was engulfed in smoke.

After the fire was extinguished, Mr. Fox returned to the dwelling to make an inspection. He found the family room and the kitchen to be almost completely destroyed while the remainder of the house was charred except for the basement which had been virtually untouched.

Carl Metz, a fire investigator for the Pennsylvania State Police, also investigated the fire. Trooper Metz testified that he had been a fire investigator for approximately twenty-one years and that during this time taught at several fire schools. Upon completing his investigation, Trooper Metz made the following conclusions:

“The fire in incident is believed to have started in the first floor kitchen of the one to two story log framed house and then spread from that area to the complete first floor of the house. This house originally was a two-story log cabin-type house, and is presently a one-story frame with aluminum siding section added along with a carport. The house was heated with a fuel oil furnace which was located in the basement. A complete house and antique furniture had been recently gone over, [sic]
A check was made of the wiring and it was found to be in good condition. There was signs of shortening of wiring in the kitchen and the living room, [sic] The fuses in the fuse box were checked and found to be blown, and in the back were signs of arcing. Holes in the area of the floor above the hot water tank and burned down through the floor and not up through the floor, [sic]
Another thing was found on the electric range had been on at the time of the fire, [sic] A hole was burned through in front of the electric range down through the floor, and all the shelves burned off above the electric range were in the area of the range.”

Appellants’ final witness was Timothy Pudlo. Mr. Pudlo, an electrical nuclear and aerospace engineer, had been employed by Pittsburgh Testing Laboratories for ten years. Prior thereto, his employment record included service with Bendix Corporation as a guided missile engineer, and at Westinghouse as an aerospace and nuclear engineer. Also, during employment with Pittsburgh Laboratories, Mr. Pud-lo worked as a manufactured electrical wiring inspector and in this role had examined and tested the electrical wiring in ranges so as to insure their safety. In addition, Mr. Pudlo’s employment experience encompassed the investigation of fires, their origins, and causes. Mr. Pudlo is a registered engineer in Pennsylvania and Illinois, and is a member of the Institute of Electric and Electronic Engineers and the National Fire Protection Association.

Appellants’ trial counsel, so as to elicit an expert opinion as to the origin of the fire, asked the following hypothetical question based upon facts adduced from the appellants’ prior witnesses:

Q. Mr. Pudlo, I’m going to rephrase the hypothetical question I’ve asked you and change a few of the facts that I’d like you to assume. Would you please assume the following sets of facts please: The Swartz home caught on fire December 12, 1973, between 2:40 p.m. and 4:39 p.m. The Swartzes’ home was a residential building of log construction with a frame addition. The frame addition contained interior wooden paneling and exterior aluminum siding. That no one was in the Swartzes’ home when the fire occurred. That a pot of oxtail soup was on the low setting on the back right burner of the Swartzes’ electric range when the Swartzes left their house at 2:40 p.m. that day.
That the range in use had been purchased and installed less than ten months before the fire. That the electric range was plugged into a 220 volt outlet that had been used by the Swartzes for electric ranges for 23 years. That the electric range’s back was against an exterior log wall, and to the left of the electric range is an exterior log wall. There was . a wood floor with a linoleum surfacing, and to the right was a counter top followed by a sink, and above the electric range was a cabinet. Also, assume, please, that the only hole burnt through the first floor of the flooring by the fire was located a few feet in front of the range, and that hole was burned from the first floor downward. That the only hole burned through the log walls of the house was a hole in the exterior kitchen wall behind the electric range at the same height of the electric range and burning from the interior of the house outward.
That there was no fire damage to the electric hot water tank and oil furnace. That the hot water tank and furnace were located in the basement and subsequently used in the new house used and built by the Swartzes after the fire. That the wiring in the stove which you’ve examined was wrapped in mineral insulation and copper wiring that you’ve examined had melted balls at various ends that formed into molten copper.
Based on those assumptions of fact, Mr. Pudlo, are you able to form within a reasonable degree of scientific certainty as to the origin of the fire in the Swartzes’ residence? [sic]
A. Upon Mr. Pudlo’s affirmative response, the following discourse ensued:
Q. Would you please tell us what your opinion is as to the origin of the fire?
A. The origin of the fire was in the vicinity of the range, and its cause was from the inside of the range outward of an electrical origin, [sic]
Q. Would you please explain what caused the fire?
A. From the holes burnt through the walls, I surmised that the origin was in the vicinity of the range. That would be the hottest part of the fire where it was burning for the longest period of time. So it had time to heat through the walls and floors around the area of the range. From the mineral insulation, I concluded that in previous observations in fires that that doesn’t degrade completely inside a normal combustible fire. If there were oxygens or acetylene or some very fancy fire, I would expect that to degrade rapidly. But I see mineral insulation get through an ordinary combustible fire, [sic]
I also found the copper balls. From that I deduced that that was caused by electric origin. That’s about the only thing hot enough around that area to melt the copper. Normal combustibles don’t get that hot in an ordinary fire. So there was some sort of short-circuit in that area that caused the copper balls to melt, and that was not caused by the fire because the mineral insulation would have survived from a normal fire.
If it was laying out, the plastic may have burned and that may have resulted as the cause of the fire, but I concluded that it occurred before the whole house was burning because of this mineral insulation. It didn’t go during a normal combustible fire.

In continued questioning, Mr. Pudlo stated that from his observation and findings, the short-circuit which caused the fire was on the supply side of the range switch, meaning the plug wire running from the wall outlet to the outlet on the range. However, this testimony was stricken upon objection. In justifying its sustaining of this objection, the lower court asked the following questions of Mr. Pudlo:

THE COURT: Incidentally, did you ever see that range? I mean the actual one in the kitchen.
MR. PUDLO: Yes.
THE COURT: Did you look inside of it.
THE WITNESS: Yes.
THE COURT: All right. Did you look at every wire, every nut, every bolt, every part of the circuits of the range system?
THE WITNESS: Not every one individually, no.
THE COURT: Whatever you looked at, did you find anything that was wrong with it — not what you found after the fire, but did you find a broken wire? Did you find wires with no insulation on it? As what you say would cause a short-circuit?
THE WITNESS: No, I didn’t.
Appellants’ Trial Counsel:
Q. What did you find, Mr. Pudlo?
A. I found wires with melted ends that indicated to me that there was some sort of short-circuit inside that range or a big dissipation of energy that shouldn’t have been there.
Q. What would create that energy?
THE COURT: You’ve already been over that half dozen times. (Referring to the fact that the Court would not allow Mr. Pudlo to testify as to the location of the short).

The lower court also prohibited Mr. Pudlo from testifying as to whether the range was defective when sold or at the time of the fire. The trial court, in disallowing this testimony, stated that these are the ultimate issues in the case, and as such are the exclusive province of the jury.

In order to have their claim in strict liability submitted to the jury, appellants were required only to make out a prima facie case that the range was defective, that the defect caused the fire, and that the defect existed in the product at the time it entered the market. See Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); Gill v. McGraw Electric Company, 264 Pa.Super. 368, 399 A.2d 1095 (1979). Restatement (Second) of Torts, § 402A. Appellants could prove the existence of the defect circumstantially. See Cornell Drilling Co. v. Ford Motor Company, 241 Pa.Super. 129, 359 A.2d 822 (1976); Agostino v. Rockwell Mfg. Co., 236 Pa.Super. 434, 345 A.2d 735 (1975); D’Antona v. Hampton Grinding Wheel Co., 225 Pa.Super. 120, 310 A.2d 307 (1973).

As our review of the evidence indicates, when appellants are given the benefit of every fact and reasonable inference, a jury could properly find that the fire which partially destroyed the Swartzes’ home was caused by a short-circuit which occurred in the plug wire that ran from the electric outlet to the range’s control panel. From the melted ends of the wires which he found upon his examination of the range, Mr. Pudlo concluded that a large dissipation of energy took place in the range itself which would not have occurred if the fire had originated in any place other than the range. Also, Mr. Pudlo was able to indicate that the short-circuit occurred on the supply side of the switch, meaning from the wall-plug wire to the dial controls on the range. The lower court granted a motion to strike this testimony based upon the fact that Mr. Pudlo had not examined these wires. However, Mr. Pudlo indicated that he had examined the range itself and we do not have any indication as to its availability following the fire. Furthermore, Mr. Pudlo indicated that it was not necessary that he examined this plug wire, for the circuitry inside the range indicated that the short-circuit occurred in the supply side of the range, that is, the plug wire.

In Gill v. McGraw Electric Company, 264 Pa.Super. 368, 399 A.2d 1095 (1979), we were confronted with a factual situation very similar to the present case. In denying the plaintiffs’ motion for a new trial, the trial court stated:

“The plaintiffs’ motion for a new trial contains 15 reasons of trial error. Even assuming they are good and cogent reasons for a new trial, there is one basic and fundamental gap in this case that precludes relief to the plaintiffs. It rises from the testimony of Dr. Terry Hockenberry, plaintiffs’ expert witness.
The defect in this case, as contended by Dr. Hockenberry, was the heating unit in the baseboard heater. A properly constructed unit has a resistor wire, surrounded by insulation. The wire and insulation are encompassed in aluminum tubing. Dr. Hockenberry’s theory was that in the unit in question, the resistor wire was improperly installed and came into contact with the aluminum tubing, and this caused the fire. This theory was not based on any examination or testing of the unit, but merely on his vast experience in fire cases and his knowledge of the origination of fire. Insofar as this court is concerned, that was nothing but speculation and conjecture. As an expert he had an obligation to either take this unit apart and verify this finding, or in the alternative, subject the unit to some type of test or examination so that he could tell the jury whether he found the resistor wire up against the tubing. An X-ray examination or some type of fluoroscopic examination was required to support this theory.
The case was lost when Dr. Hockenberry admitted he did nothing with the unit, retrieved from the destroyed premise, to verify his conclusion that this defective part did indeed start the fire.
Counsel for defendant, in his objections to the expert’s testimony, set forth as one of the reasons for objecting to Dr. Hockenberry’s testimony that the expert further admitted he did not examine the element in the baseboard heating unit where he said the defect existed. In retrospect, this should have been sustained and with it the motion for a compulsory non-suit.
Lest the appellate court be tempted to afford plaintiffs a second bite of the apple, it may be in order to point out a fact that is de hors the record, but is persuasive. The unit was examined and it was discovered that the resistor wire was in proper place and surrounded by the requisite insulation. The jury made this examination, and it supplies the knockout punch to Dr. Hockenberry’s credibility.
Under these circumstances, I would not disturb the verdict. Lower Court Opinion at 2-3.”

Gill, supra 264 Pa.Super. at 376-77, 399 A.2d at 1099-1100.

In reversing the lower court’s conclusion that the appellants’ expert testimony was insufficient to withstand the defendant’s motion for non-suit, we stated:

“When appellants are given the benefit of every fact and reasonable inference, and when all conflicts are resolved in their favor, it is apparent that the combined testimony of Dr. Hockenberry and John Brooks showed that the system was installed in the same condition as it was received from appellee, and that the fire was caused by a defect existing in the system when it was installed, specifically, by the heating wire coming into improper contact with the wall of the tube, producing extreme heat. There was no need, in order to make out a prima facie case, for Dr. Hockenberry to produce an X-ray of the tube; his testimony of his visual examination of the resistance readings of the tube was sufficient. The issue of his theory’s correctness, as compared with the theory advanced by appellee’s experts, is not before us and was not before the trial judge in the context of a motion for a non-suit, but was for the jury. We therefore decline the lower court’s invitation to consider “a fact that is de hors the record ... [and] that supplies the knockout punch to Dr. Hockenberry’s credibility.” We shall leave credibility to the jury, and confine ourselves to the record. See McCaffrey v. Pittsburgh Athletic Ass’n., 448 Pa. 151, 293 A.2d 51 (1972); Greene v. Liebergott, 235 Pa.Super. 475, 344 A.2d 501 (1975).” (emphasis added).

Gill, supra, 264 Pa.Super. at 379, 399 A.2d at 1101.

We, as did the Court in Gill, supra, conclude that it was not necessary for Mr. Pudlo to examine the plug wire, (if it was available after the fire), so as to make out a prima facie case. His testimony as to his inspection of the wiring in the range and the results of that inspection, combined with Trooper Metz’s and Mr. Pudlo’s findings as to the origin of the fire, were sufficient. The correctness of Mr. Pudlo’s theory, as compared with any advanced by appellees’ experts is strictly for jury resolution.

The trial court also advanced as a reason for granting appellees’ motions for compulsory nonsuits that appellants did not eliminate the cooking of the oxtail soup as a reasonable secondary cause of the fire. Upon our review of the record, we find that appellants did present testimony that Mr. Swartz had on many previous occasions followed the same procedures for cooking that he had that day and then left the house specifically, first, having the oxtail soup come to a boil, then lowering the dial control to simmer, and finally checking the water before leaving his residence to ensure that the large pot was over half filled with water. Clearly, appellants had placed sufficient evidence into the record to enable the jury to say reasonably that the preponderance of the evidence favors liability. As we have stated in Cornell Drilling Company, supra, 241 Pa.Super. at 135, 359 A.2d at 825, in a trespass case:

“a plaintiff need not exclude every reasonable possibility that could have caused the accident. It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability.” Jones v. Treegoob, 433 Pa. 225, 230, 249 A.2d 352, 355 (1969).

The final issue which we must examine in determining whether the compulsory non-suits should have been granted is whether appellants submitted sufficient evidence to establish that the alleged short-circuit on the supply side of the range was caused by a defect in the range which existed at the time of its sale to appellants ten months prior to the fire. As held by our Supreme Court, the plaintiff must prove that the defect causing the injury was present at the time the product left the seller’s hands. See Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968). See also, Restatement (Second) of Torts, § 402A(1)(b).

Mr. Pudlo stated that from the evidence adduced at trial, and his personal inspection, he could form an opinion with a reasonable degree of scientific certainty as to whether the Swartzes’ range was defective when it was sold to the Swartzes. However, the trial court did not permit Mr. Pudlo to testify as to his opinion on this ultimate issue in the case.

In Lewis v. Mellor, 259 Pa.Super. 509, 522, 393 A.2d 941, 948 (1978), we adopted Rule 704 of the Federal Rules of Evidence which provides:

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

In establishing this law, we also determined that the lower court would not be reversed in ruling upon the admissibility of testimony to the ultimate issue in the case unless the trial court had clearly abused its discretion and actual prejudice had occurred. Lewis v. Mellor, 259 Pa.Super. 509, 398 A.2d 941 (1978).

In the present instance, opinions by experts as to the origin of the fire and whether a defect existed in the range at the time of its purchase are of utmost importance to the jury’s proper resolution of the case due to the complexity of the electric wiring of a range. We have stated that circumstantial evidence such as the occurrence of the fire a relatively short time following the purchase, as in the present case where the fire occurred while the range was still under warranty, may permit the inference that the product was defective when it was purchased. However, one can be insured of a more informed and reasoned verdict if experts are permitted to state their conclusion when a complex issue, such as the one in the present case, is involved. Very few jurors would possess any knowledge as to whether the condition which caused a short-circuit to occur ten months following the purchase of the range would have been present at the time of purchase. Any argument that the jury would place undue emphasis on the opinion of the expert witness is refuted by the fact that if the opinion is not supported by the facts, this may be pointed out by cross-examination and argument, and the jury persuaded to reject the opinion. See Ladd, Expert Testimony, 5 Vand.L. Rev. 414, 415-17 (1952). See also, Lewis v. Mellor, supra, 259 Pa.Super. at 521, 393 A.2d at 948.

Thus, we conclude that Mr. Pudlo’s expert testimony as to whether the short-circuit was present at the time of the range’s purchase from appellee Sam Levin Furniture should have been admitted and therefore there is no question that appellants would have established a prima facie case.

Reversed and remanded for a new trial.


source: Caselaw Access Project

author: BROSKY, Judge: MONTEMURO, Judge, SPAETH, Judge,

license: Public Domain

text:
    475 A.2d 103
    COMMONWEALTH of Pennsylvania v. David Lloyd KUHN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1983.
    Filed March 23, 1984.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.

      John Woodcock, Jr., Public Defender, Hollidaysburg, for appellant.
    Gary A. Caldwell, Assistant District Attorney, Altoona, for Commonwealth, appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

This appeal is from judgment of sentence imposed subsequent to conviction for burglary, theft and causing or risking a catastrophe. Appellant raises seven issues: (1) A Rule 1100 violation. (2) Failure to suppress a confession. (3) Failure to sustain a demurrer. (4) Not permitting a psychologist to testify regarding appellant’s involuntary intoxication due to chronic alcoholism. (5) The amount of restitution exceeding appellant’s ability to pay. (6) The verdict was against the law. (7) The verdict was against the weight of the evidence. We find that issues (3), (5), (6) and (7) are waived; and we find against appellant on issues (1), (2) and (4). Accordingly, judgment of sentence is affirmed.

Rule 1100

Appellant argues that he is entitled to discharge as a result of a violation of Pa.R.Crim.P. 1100.

Appellant was charged on January 22, 1978. Prior to the Rule 1100 run date, the prosecution' filed a petition to extend. This was granted until November 3. Trial was commenced before that date.

At the extension hearing, it was brought out that the trial could not be held due to a number of factors creating judicial delay: a backlog of cases, the resignation of the President Judge and construction in the courthouse. Judicial delay constitutes a valid reason justifying a Rule 1100 extension. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976).

Accordingly, we find that appellant does not prevail on this issue.

Suppression

Appellant contends that the court below erred in failing to suppress the statement he gave to a State Police trooper the morning after the commission of the crimes. He contends that this statement was given involuntarily since he was intoxicated at the time it was made.

We note at the outset that this issue was presented to the court below in a tardy fashion, at the day of trial. The trial court noted this lack of timeliness but nonetheless chose to address the issue. As a result, the issue is preserved for appellate review.

In Commonwealth v. Pinno, 433 Pa. 1, 248 A.2d 26 (1968), Justice Roberts considered the effect of a tardily filed suppression motion.

We believe that a proper reading of Rule 2001 compels the conclusion that the question of waiver under 2001(b) is a matter solely for the court. 2001(b) provides four alternative excuses for a failure to meet the “five days before trial” requirement. The drafters’ notes explicitly state that the last of these, if “the interests of justice require it,” gives the court discretionary power to entertain the application after the expiration of the time period.... When the trial judge decided the merits of appellant’s suppression claim, he in effect exercised his discretionary power to excuse appellant’s noncompliance with the five day rule.

Commonwealth v. Pinno, supra, 433 Pa. at 5-6, 248 A.2d at 29.

The rule dealt with in Pinno is not the one presently before us, but it was one of the rules consolidated to form the present rule — Pa.R.Crim.P. 323. The latter also includes the phrase if “the interests of justice” which was crucial to the rationale in Pinno. Pinno is, therefore, applicable to the case before us; and thus the trial court had within its discretion the decision to treat the tardy suppression motion. Given this discretion, “it no longer makes any sense to consider waiver.” Id.

As we have said, appellant alleges that his intoxication at the time he made the statement rendered it involuntary and consequently inadmissible. The effect of such intoxication, if established, has been set out in a number of Pennsylvania Supreme Court cases.

Recent imbibing or the existence of a hangover does not make his confession inadmissible, but only goes to the weight to be accorded to it.

Commonwealth v. Smith, 447 Pa. 457 at 460, 291 A.2d 103 at 104 (1972).

Again, intoxication is a factor to be considered, but it is not sufficient, in and of itself to render the confession involuntary.

Commonwealth v. Jones, 457 Pa. 423 at 432, 322 A.2d 119 at 125 (1974).

In order for the intoxication to render the confession involuntary, it must have had a certain precise impact on the individual.

The test is whether there is sufficient mental capacity for the defendant to know what he was saying and to have voluntarily intended to say it.

Commonwealth v. Culberson, 467 Pa. 424 at 428, 358 A.2d 416 at 417 (1976).

The applicable burden of proof and appellate standard of review in this matter have also been detailed by case law.

The Commonwealth has the burden of proof as to voluntariness; it must be shown by a preponderance of the credible evidence. Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).

The high court has stated that:

... our responsibility upon review is to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. . . . In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Goodwin, 460 Pa. 516 at 522-523, 333 A.2d 892 at 895 (1975).

With these principles in mind, a review of the record reveals the following.

The State Police arrived at appellant’s house the morning after the crimes had been committed. They explained the purpose of their visit and read him his Miranda rights. Appellant did not stand on those rights but made a statement which he later signed. At the suppression hearing, Trooper Behe testified that appellant said that he had been drunk the night before and was not feeling “100%.” On the ultimate issue, the Trooper testified that, while appellant appeared somewhat unkempt and hungover, appellant was not intoxicated at the time of the interrogation. While there was testimony to the contrary—

The trial judge elected to believe the detectives’ testimony as to the appellant’s condition and capacity at the time of giving his statement and not that of appellant and his family. An appellate court does not weigh evidence or pass upon the credibility of witnesses, and there is no basis for us to hold as a matter of law that the court’s finding of voluntariness of the confession was not adequately supported and well within the court’s discretion.

Commonwealth v. Smith, supra, 447 Pa. at 461, 291 A.2d at 104.

The denial of the motion to suppress is not, therefore, reversible.

Demurrer

Appellant claims that the court below erred in not granting his demurrer to the charge of causing or risking a catastrophe. “Since however, the defendant did not rest following this adverse ruling, but elected to put in a case in defense, the correctness of the ruling on the demurrer is no longer an available issue.” Commonwealth v. Ilgenfritz, 466 Pa. 345 at 347, 353 A.2d 387 at 388 (1976).

In Ilgenfritz, the Supreme Court of this Commonwealth chose to “treat the question as if properly framed, namely, whether the trial court erred in refusing defendant’s motion in arrest of judgment. In doing so, of course, we consider all of the evidence at trial, not only that contained in the Commonwealth’s case in chief.” Id. Because appellant has also raised an issue regarding the verdict being against the law, we can address it, the properly framed issue. The choice of addressing the improperly pleaded issue is consequently not before us.

Involuntary Intoxication

Appellant argues that the trial court erred in not allowing a psychologist, Dennis Shapson, to testify. He was to have testified to appellant’s involuntary intoxication at the time of the commission of the crimes. The alleged involuntary intoxication did not come about in the traditional ways the law has recognized such a state: being forced to consume alcohol or drugs, or consuming them without knowledge of their intoxicating contents.

A letter sent to the Public Defender by Shapson, and another staff member of the Altoona Hospital, psychiatrist Pauline Goldschmidt, succinctly states the theory of involuntary intoxication on which Shapson would have based his testimony.

Mr. David L. Kuhn was seen by us on July 18, 1978. Mr. Kuhn is a chronic alcoholic.
In our estimation, he is not capable of voluntarily refraining from the use of alcohol.

Since an appropriate offer of proof was made and the issue otherwise preserved for our review, only one question remains for our determination. If Shapson had testified as his letter and the offer of proof indicated, would it have had legal relevance? In other words, we must decide whether, as a matter of law, involuntary intoxication can be established through the existence of a form of chronic alcoholism which renders him “not capable of voluntarily refraining from the use of alcohol.” In order to make this determination, we will look to the purposes of criminal sentencing.

Perhaps the primary purpose of criminal sentencing is punishment. One rationale underlying the affirmative defense of involuntary intoxication is that a person should not be punished for committing a criminal act due to a condition for which he was not responsible. Following this rationale, if punishment were the only reason for criminal sentencing, we would be obliged to find that an ungovernable compulsion to drink could create the legal state of involuntary intoxication.

However, there are other purposes of criminal sentencing other than punishment. One of these is prevention. In its commonly accepted forms, an involuntarily intoxicated person is not likely to commit another crime as a result of such intoxication. Thus, the prevention purpose of criminal sentencing is not applicable to the person involuntarily intoxicated in the usual sense.

This is not true of a person involuntarily intoxicated as a result of chronic alcoholism. In such a case, the likelihood of repeated intoxication and the resulting repeated commission of crimes, is, in contrast, very high indeed. Thus, criminal liability is appropriate for the purpose of prevention in a case like the one before us.

Another distinction can also be found in one of the other purposes of criminal sentencing: rehabilitation. For example, it would not be logical to impose criminal liability for purposes of rehabilitation on someone who has drunk some coffee which unbeknownst to him contained a hallucinogen and, as a consequence of its effects, committed a crime. Such a person would not be in need of rehabilitation. The person involuntarily intoxicated by virtue of chronic alcoholism is, again in contrast, in drastic need of rehabilitation.

Finally, another purpose of criminal sentencing is also applicable to people in appellant’s alleged condition — restitution. Indeed, this constituted a portion of the sentence imposed on appellant.

To summarize, while it is not appropriate to impose criminal liability and judgment of sentence on a person involuntarily intoxicated through chronic alcoholism for the purpose of punishment, other purposes are served. Among these proper purposes are prevention, rehabilitation and restitution. All three of the latter purposes are served by the judgment of sentence in the case before us.

We conclude, therefore, that involuntary intoxication cannot, as a matter of law, be established through evidence showing that the criminal defendant was a chronic alcoholic incapable of voluntarily refraining from ingestion of alcohol. It follows from this that the evidence which Shapson would have given would not have had legal relevance as an affirmative defense. Consequently, there was no error in the trial court not allowing him to testify.

Restitution

Among the requirements of appellant’s 15-year probation imposed at sentencing was that he pay á monthly minimum of $200 in costs and fines. This sum was to be forwarded to the owner of the burned-down funeral home. Appellant argues that this amount exceeds his ability to pay and is therefore improper under the rule of Commonwealth v. Fuqua, 267 Pa.Super. 504, 407 A.2d 24 (1979).

This issue has not been preserved for our review as no written motion to modify sentence was filed with the court below in accordance with Pa.R.Crim.P. 1410.

Another term of the probation imposed at sentencing was that: “... the defendant shall attend on a weekly basis the Church services at the Emmanuel Baptist Church in Claysburg or such other Church of the defendant’s choosing as he may determine.” At sentencing the Court stated: “The Court is not attempting to put anyone into any particular Church or anything of this nature, I’m trying to keep you within the light you have seen. That’s the reason I have imposed that special condition of some Church service of your choosing.”

The propriety of this portion of the sentence has not been presented to us on appeal. Nor does it constitute an illegal sentence in the narrow sense of that term such that we can raise it sua sponte. Commonwealth v. Thomas, 291 Pa.Super. 263, 435 A.2d 901 (1981). Nonetheless, we choose to comment as a cautionary note to courts below. Such a requirement is most likely unconstitutional as a violation of the Establishment Clause of the First Amendment of the Constitution of the United States. The possible effectiveness of this probation requirement and its nonrestriction to any particular church do not alter this conclusion.

Verdict against the law and against the weight of the evidence

Appellant argues that the verdict was against the law and against the weight of the evidence. These issues are also not preserved for appellate (or for that matter, post-trial) review.

While these issues were included in the post-verdict motions, they were not argued in the post-verdict brief. As a consequence, they are waived for purposes of appellate review. Commonwealth v. Perry, 279 Pa.Super. 32 at 35-37, 420 A.2d 729 at 731 (1980) (Price, J.).

Judgment of sentence affirmed.

MONTEMURO, J., files a concurring opinion.

SPAETH, J., files a dissenting opinion.

MONTEMURO, Judge,

concurring:

I disagree with both the majority’s and the dissent’s analysis of the issue of involuntary intoxication, and so, although I too would affirm the trial court’s judgment of sentence, I feel constrained to state my view on this issue.

In reaching their respective conclusions, both the majority and the dissent premise their analyses of the issue on the purposes of criminal punishment. The decision of the United States Supreme Court in Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), serves as the conceptual forerunner of both opinions, although it is expressly cited only in the dissent. In my view, the attempt to directly relate the issue of chronic alcoholism as a basis for the defense of involuntary intoxication to the purpose of criminal punishment is an analytical non-sequitur. Rather, the issue herein is primarily an evidentiary question of whether the appellant’s alleged chronic alcoholism was relevant to a defense of involuntary intoxication. Of necessity this inquiry must touch upon the effect of chronic alcoholism on criminal culpability. The question of the propriety of punishing a chronic alcoholic for crimes committed while intoxicated, a question never raised by either party in the trial court or before us, is subordinate to the first two questions. Thus, I do not believe that the issue of the propriety of punishing chronic alcoholics is properly before us. I further believe that this view is supported by the language of Powell. In Powell v. Texas, id, the question before the court was whether the punishment of a chronic alcoholic for the crime of public intoxication constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. In a plurality opinion, the Court held that it did not. However, Powell, by its own terms, is not applicable to the type of situation in this case. In the dissenting opinion of Fortas, J. (joined by Douglas, Brennan and Stewart, JJ.), it is stated:

This case does not raise any question as to the right of the police to stop and detain those who are intoxicated in public, whether as a result of the disease or otherwise; or as to the State’s power to commit chronic alcoholics for treatment. Nor does it concern the responsibility of an alcoholic for criminal acts. We deal here with the mere condition of being intoxicated in public. (Emphasis in original)

Id, 392 U.S. at 559, 88 S.Ct. at 2167. The limited applicability of the decision in Powell is stated even more strongly in the plurality opinion, id, 392 U.S. at 534-35, 88 S.Ct. at 2155-56.

I reiterate my position that the issue of the propriety of punishing chronic alcoholics is not before us because it has not been raised by the parties. If the issue were before us, I would stress the inapplicability of the Powell decision based on the express language therein. The true question before us is whether the trial court erred in excluding testimony regarding the appellant’s chronic alcoholism, which was offered to establish a defense of involuntary intoxication. I would find no error.

It is well-established that questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of discretion. Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976); Commonwealth v. Miller, 303 Pa.Super. 504, 450 A.2d 40 (1982); Commonwealth v. Krajci, 283 Pa.Super. 488, 424 A.2d 914 (1981). The trial court found that the offered testimony “went to the question of voluntary intoxication which is not a valid defense under the law of this Commonwealth. 18 Pa.C.S.A. Sec. 308.” (Lower Court Opinion at 6). Our determination then is whether the trial court abused its discretion in finding that the proffered evidence was not relevant to the issue of involuntary intoxication.

“Evidence which tends to establish a material fact in the case or which tends to make a fact at issue more or less probable is relevant.” Commonwealth v. Brown, 489 Pa. 285, 303, 414 A.2d 70, 79 (1980); Commonwealth v. Scott, 480 Pa. 50, 54, 389 A.2d 79, 82 (1978); Commonwealth v. Myers, 439 Pa. 381, 266 A.2d 756 (1970). Involuntary intoxication as a defense to a crime is addressed by 18 Pa.C.S.A. § 308, which states:

Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative (negate) the element of intent of the offense, except that the evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.

The historical note to this section cited its similarity to § 2.08 of the Model Penal Code. The section addresses only voluntary intoxication, thus it is implied that involuntary intoxication would be a defense to a crime, and that a defendant would be permitted to introduce evidence relevant to involuntary intoxication. No Pennsylvania case has ever held that the defense of involuntary intoxication is a viable one. Cf. Commonwealth v. Todaro, 301 Pa.Super. 1, 446 A.2d 1305 (1982) (defendant not permitted an instruction on involuntary intoxication where he inadvertently mixed alcoholic beverages with prescribed medication). The statute also fails to define “voluntary intoxication.”

Assuming that “involuntary intoxication” is a viable defense to a criminal act in this Commonwealth, the question before us is whether evidence of chronic alcoholism can be a basis for the defense. The question is not whether it is fair to punish chronic alcoholics, but rather whether or not they possessed, at the time of the criminal act, the requisite mens rea to find them criminally culpable. It is the element of mens rea which is most important in distinguishing between voluntary and involuntary inebriates. As stated by one commentator:

The defense of “voluntary” intoxication reflected compelling policy considerations: intoxication impaired the inebriate’s ability to regulate his behavior and therefore made him less culpable than one who acted while sober, but the inebriate was blameworthy because he had freely assumed the impairment, thereby reducing his ability to protect himself and others against the risks created by his conduct. . . . The “involuntary” intoxication defense was based on the assumption that one who consumed an intoxicant against his will or without full awareness of the implications of his conduct was not blameworthy.

Note, Chronic Alcoholism as a Defense to Crime, 61 Minn.L.R. 901, 902-05 (1977). Thus, in the case of the involuntary inebriate there is no mens rea, and hence, no criminal culpability; whereas, in the case of the voluntary inebriate, he is deemed to be able to form a general intent to commit a criminal act, but not a specific intent. Thus, in many jurisdictions, voluntary intoxication will provide a defense to all crimes which require a specific intent, but not those crimes which require a general intent. In fact, the approach was taken by Pennsylvania under former § 308. See Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 P.S. § 308; Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975). This approach, as we know, was changed by the 1976 amendment which limits the effect of voluntary intoxication to negating the specific intent to commit murder. See 18 Pa.C.S.A. § 308. As this court state din Commonwealth v. Rumsey, 309 Pa.Super. 137, 140, 454 A.2d 1121, 1122 (1983):

[I]t is apparent that in amended § 308 the legislature in effect redefined the mens rea element of intentional or knowing crimes to include those cases when the putative offender performed the criminal act but was unable to form the criminal intent otherwise required solely because he was voluntarily drunk or drugged. See Pa. Supreme Ct. Commission on Standard Jury Instruction, Draft Report at 2 (April 24, 1976) (suggesting this interpretation). Cf. Commonwealth v. Pickett, 244 Pa.Superior Ct. 433, 368 A.2d 799 (1976) (amended § 308 is not just a procedural rule because in effect it punishes acts that would not have been criminal under prior § 308 or would have been punishable only as lesser crimes). Redefinition of the kind and quality of mental activity that constitutes the mens rea element of crimes is a permissible part of the legislature’s role in the “constantly shifting adjustment between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man.” Powell v. Texas, 392 U.S. 514, 536, 88 S.Ct. 2145, 2156, 20 L.Ed. 1254, 1269 (1968). In light of the history and nature of the voluntary intoxication defense and the purpose of a mens rea element in crimes, we are satisfied that the legislature has acted within permissible constitutional bounds in enacting amended § 308.

The effect of the amendment to § 308 is that a voluntarily intoxicated person is deemed to have the requisite mens rea to bring upon himself the consequences of criminal responsibility, even though his or her brain was little more than grey mush while performing the criminal act.

We must decide whether a person who drinks under an alleged compulsion of chronic alcoholism is to be classified as a voluntary or involuntary inebriate. In my view, chronic alcoholism is an insufficient basis to establish the defense of involuntary intoxication. In reaching this conclusion, I am persuaded by what I believe to be the weight of authority in other jurisdictions as well as by policy consideration.

My review of the law of other jurisdiction convinces me that involuntary intoxication is intoxication which is compelled by external force; i.e., by physical compulsion by another, trickery, deception or artifice, and not that compelled by some internal compulsion. Evans v. State, 645 P.2d 155 (Alaska 1982); Tacorante v. People, 624 P.2d 1324 (Colo.1981) (heroin addiction); Upshur v. State, 420 A.2d 165 (Del.Sup.1980); State v. McNally, 336 So.2d 713 (Fla. App.1976); McLaughlin v. State, 236 Ga. 577, 224 S.E.2d 412 (1976); Grimes v. Burch, 223 Ga. 856, 159 S.E.2d 69 (1968); People v. Quinn, 46 Ill.App.3d 579, 4 Ill.Dec. 846, 360 N.E.2d 1221 (1977); People v. Walker, 33 Ill.App.3d 681, 338 N.E.2d 449 (1975); People v. Walcher, 42 Ill.2d 159, 246 N.E.2d 256 (1969); State v. Palacio, 221 Kan. 394, 559 P.2d 804 (1977); State v. Seely, 212 Kan. 195, 510 P.2d 115 (1973); Commonwealth v. Sheehan, 376 Mass. 765, 383 N.E.2d 1115 (1978); State v. Patch, 329 N.W.2d 833 (Minn. 1983); State v. Bishop, 632 S.W.2d 255 (Mo.1982); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777 (1973); Baggett v. State, 220 Tenn. 592, 421 S.W.2d 629 (1967); Loveday v. State, 74 Wis.2d 503, 247 N.W.2d 116 (1976) (overruling Staples v. State, 74 Wis.2d 13, 245 N.W.2d 679 (1976), and Roberts v. State, 41 Wis.2d 537, 164 N.W.2d 525 (1969)). See also 10 U.L.A. Model Penal Code § 1.08(5)(6); Michigan Second Revised Criminal Code § 710. See also generally 22 C.J.S. Criminal Law § 69, p. 221, 73 A.L.R.3d 195; 8 A.L.R.3d 1236.

While the weight of authority is persuasive, I also think policy considerations strongly support the preclusion of chronic alcoholism as a basis for establishing the defense of involuntary intoxication.

This approach should be rejected. Most inebriated persons do not commit crimes, despite alcohol’s effect of loosening their inhibitions. Those inebriates who do intentionally cause harm deserve punishment. Moreover, it would be extraordinarily difficult to determine when alcoholism is sufficiently “chronic” or which defendant’s drunken violence was sufficiently unanticipated to merit an intoxication defense. Because clear guidelines would be impossible to draw, jury discretion would be substantial. This could lead to inconsistent and discriminatory results, as well as a burdensome increase in spurious claims by defendant hoping for a sympathetic jury. Finally, society’s interest in safety would be illserved by weakening sanctions against inebriates who intentionally cause harm to others, especially since their crimes often involve violent attacks on the person.

Note, Alcohol Abuse and the Law, 94 Harvard L.Rev. 1660, 1685 (1981). Additionally, I believe that the public’s right to safety must be balanced against the rights of criminal defendants. Again, as stated by this court:

Although mere overindulgence or intoxication are not so morally reprehensible as consciously inflicting injury upon another, the legislature may emphasize concerns other than moral culpability in determining the elements of a crime. Powell v. Texas, supra. For instance, in upholding the constitutionality of strict liability crimes, the U.S. Supreme Court noted that the legislature may balance the hardship to offenders against that to the victims, and impose responsibility upon those with a better opportunity to prevent the proscribed consequences. United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943). That the hardship to victims is considerable is well-demonstrated. Drunk or otherwise intoxicated persons have been shown to commit nearly half the violent criminal acts that come to the attention of the police. More, Legal Responsibility and Chronic Alcoholism, 122 Am.J.Psych. 748, 753 (1966)

Commonwealth v. Rumsey, supra, 309 Pa.Super. at 143, 454 A.2d at 1124. There is no question that the chronic alcoholic faces considerable hardship, and that the propriety of incarcerating him is not clearcut. However, in the interest of public safety, and in the absence of legislative direction, I believe that under the present statute, chronic alcoholism is not to be equated with involuntary intoxication.

Consequently, I would hold that the evidence of appellant’s chronic alcoholism was properly excluded by the trial court as irrelevant to the defense of involuntary intoxication. I concur in the result reached by the majority on all other issues.

SPAETH, Judge,

dissenting:

I find myself unable to join either of my colleagues. Although they express themselves somewhat differently, their respective lines of reasoning seem to me essentially the same. Both assume that involuntary intoxication will in some circumstances be a defense to a criminal charge; for one who is involuntarily intoxicated may lack any criminal intent. See opinion by BROSKY, J., at 75; opinion by MONTEMURO, J., at 84. I agree with this assumption; my disagreement is with respect to the definition of the circumstances in which it is applicable.

Judge BROSKY would recognize involuntary intoxication as a defense in the case of “someone who has drunk some coffee which unbeknownst to him contained a hallucinogin and, as a consequence of its effects, committed a crime.” Opinion by BROSKY, J., at 81. And while Judge MONTEMURO does not use such an illustration, nevertheless, as I understand his opinion, he agrees with it. Opinion by MONTEMURO, J., at 84 et seq. Also, it seems fair to say that with Judge BROSKY and JUDGE MONTEMURO would recognize involuntary intoxication as a defense in the case of someone who as a result of being forced to drink alcohol became so involuntarily intoxicated as to. lack any criminal intent. But that is as far as either judge will go; neither will recognize involuntary intoxication as a defense, even if the defendant was so intoxicated as to lack any criminal intent, if the involuntary intoxication occurred because the defendant could not help drinking because he was a chronic alcoholic.

For my part, I see no distinction in principle between these three cases: drinking unknowingly; being forced by another person to drink; and being helpless to stop drinking. I should be somewhat surprised if appellant could prove that because he was a chronic alcoholic he was in fact helpless to stop drinking. However, as Judge BROSKY recognizes, that is what he offered to prove, and at this stage we must assume that he could prove it. Accordingly, I should reverse and remand for a new trial with instructions to let him try to prove it.

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In Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), a plurality of the Supreme Court rejected the argument that the cruel and unusual punishment clause of the eighth amendment to the United States Constitution, made applicable to the states through the fourteenth amendment, prohibited the State of Texas from punishing the appellant, who claimed to be a chronic alcoholic, for public drunkenness. The appellant’s argument was that as a result of his chronic alcoholism, he was incapable of refraining from public drunkenness, and that the cruel and unusual punishment clause prohibited the State of Texas from punishing him for behavior he could not control. In support of this argument, the appellant relied on Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, reh’g denied, 371 U.S. 905, 83 S.Ct. 202, 9 L.Ed.2d 166 (1962), in which the Court had held that the cruel and unusual punishment clause prohibited a state from punishing someone for being a narcotics addict.

A plurality of the Court, in an opinion by Justice Marshall, joined by the Chief Justice and Justices Black and Harlan, concluded that the record was inadequate to support the trial court’s finding that the appellant as a result of his chronic alcoholism was unable to refrain from public drunkenness. The plurality noted that the appellant had called only one expert, whose “testimony consumed a total of 17 pages . . . . [f]ive [of which] were taken up with a recitation of [the expert’s] qualifications,” id. 392 U.S. at 517, 88 S.Ct. at 2147, and that “[t]he State made no effort to obtain expert psychiatric testimony of its own, or even to explore with appellant’s witness the question of appellant’s power to control the frequency, timing, and location of his drinking bouts, or the substantial disagreement within the medical profession concerning the nature of the disease, the efficacy of treatment and the prerequisites for effective treatment," id. at 520, 88 S.Ct. at 2148. Moreover, and of special importance, the appellant’s expert admitted on cross-examination that “when appellant was sober, the act of taking the first drink was ... undertaken under the ‘exceedingly strong influence’ of a ‘compulsion,’ . . . .”, but that the act was nevertheless “a ‘voluntary exercise of his will’ [because] the ‘compulsion’ ... was ‘not completely overpowering.’ ” Id. at 525, 88 S.Ct. at 2151. Confronted with this record, the plurality held:

We are unable to conclude, on the state of this record or on the current state of medical knowledge, that chronic alcoholics in general, and Leroy Powell in particular, suffer from such an irresistible compulsion to drink and to get drunk in public that they are utterly unable to control their performance of either or both of these acts and thus cannot be deterred at all from public intoxication. . . .

Id. at 585, 88 S.Ct. at 2155.

In closing, the plurality said that “[i]t is simply not yet the time” to adopt as a constitutional rule that a chronic alcoholic may not be criminally punished for public drunkenness. Id. at 537, 88 S.Ct. at 2156.

Justices Black and Harlan, in a separate opinion by Justice Black, made it clear that their rejection of the appellant’s argument was not contingent on the inadequacy of the record. They approached the issue much as does Judge BROSKY for this court, stating that “punishment of ... a defendant [for an action that was ‘compelled’] can clearly be justified in terms of deterrence, isolation, and treatment.” Id. at 540-41, 88 S.Ct. at 2158-59. Indeed, they went so far as to say that “the question whether an act is ‘involuntary’ is ... an inherently elusive question, and one which the State may, for good reasons, wish to regard as irrelevant.” Id. at 544, 88 S.Ct. at 2160. Thus they foreclosed the issue of a chronic alcoholic’s criminal responsibility, which the Chief Justice and Justice Marshall had left open.

The “swing vote” was Justice White’s. He concurred in the result reached by the plurality of the Court on the ground that even if the appellant “could not have resisted becoming drunk ..., nothing in the record indicates that he could not have done his drinking in private.” Id. at 553, 88 S.Ct. at 2164. He made it clear, however, that in his opinion a chronic alcoholic who suffers from an irresistible compulsion to drink cannot constitutionally be punished for yielding to that compulsion, without regard to whether the goals of criminal sentencing might be advanced by punishing him. Thus he said: “If it cannot be a crime to have an irresistible compulsion to use narcotics, Robinson v. California, 370 U.S. 660 [82 S.Ct. 1417, 8 L.Ed.2d 758] (1962), I do not see how it can constitutionally be a crime to yield to such a compulsion.” Id. at 548, 88 S.Ct. at 2162.

Justice Fortas, writing for the dissent, joined by Justices Douglas, Brennan, and Stewart, accepted the trial court’s finding that the appellant was unable to refrain from public drunkenness, id. at 569, 88 S.Ct. at 2172, and concluded that Robinson prohibited the imposition of a criminal sentence on the appellant:

Robinson stands upon a principle which, despite it subtlety, must be simply stated and respectfully applied because it is the foundation of individual liberty and the cornerstone of the relations between a civilized state and its citizens: Criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.

Id. at 567, 88 S.Ct. at 2171.

Thus, in Powell five Justices agreed that a chronic alcoholic may not be criminally punished for conduct that because of his alcoholism he could not avoid; two Justices would permit him to be punished anyway; and two Justices reserved their decision as to what they would do.

This case is of course different from Powell. First, appellant was not convicted of being intoxicated; he was convicted of criminal acts that he claims to have committed while he was intoxicated. Second, appellant has not argued that the cruel and unusual punishment clause precluded the trial court from punishing him; rather, he has argued that he should have been permitted to prove that because he was a chronic alcoholic, he could not avoid being so intoxicated that he did not know what he was doing when he did the acts in question. I therefore do not suggest that Powell is, in any sense, controlling. But it is instructive. For just as appellant claims here, the appellant in Powell claimed to be a chronic alcoholic, and he relied on the consequent involuntariness of his intoxication in support of his conclusion that he should not be punished.

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Judge BROSKY, in his opinion, properly assumes that appellant could have proved what he offered to prove — that because he was a chronic alcoholic, he could not avoid being so intoxicated that he did not know what he was doing. BROSKY, J., at 80, n. 5. Judge BROSKY then states that “[such] a person should not be punished for committing a criminal act due to a condition for which he was not responsible.” Id. at 80. (footnote omitted). This reasoning seems to be in agreement with the five Justices in Powell who would not criminally punish a chronic alcoholic for conduct that because of his alcoholism he could not avoid. But then Judge BROSKY goes off on a different tack and holds that even so, a chronic alcoholic may be sentenced as a criminal, because “there are ... purposes of criminal sentencing other than punishment.” Id. at 81. These purposes, he explains, are prevention, rehabilitation and restitution; of these, he particularly emphasizes prevention, or public safety. Id. at 82. Since these purposes will be served here, he continues, “involuntary intoxication cannot, as a matter of law, be established through evidence showing that the criminal defendant was a chronic alcoholic incapable of voluntarily refraining from ingestion of alcohol.” Id. at 82.

Judge MONTEMURO’s reasoning is similar. Thus he says that “in the case of the involuntary inebriate, there is no mens rea, and hence, no criminal culpability....” MONTEMURO, J., at 87. In his view, however, the chronic alcoholic may not be classified as an involuntary inebriate. Id. at 89. While acknowledging that “the chronic alcoholic faces considerable hardship, and that the propriety of incarceration is not clear cut,” id. at 91, he concludes, as does Judge BROSKY, that “in the interest of public safety,” id., incarceration may nevertheless be warranted.

I am unpersuaded by this reasoning.

In the first place, any criminal sentence is, so far as the criminal is concerned, a punishment. His pain is lessened not at all by the sentencing judge saying, “I’m not punishing you by committing you to prison; I’m only preventing you from getting drunk again, and helping you get well.” In addition, the purposes the majority says will be served will not be served. For although by committing the alcoholic to prison, the judge will prevent him from getting drunk, the prevention will last only so long as the alcoholic is in prison. I know of no reason — and my colleagues offer none — to suggest that when the alcoholic is released from prison, he will have been rehabilitated, or helped even one step on the way. I agree with what Judge Fortas said in Powell:

It is entirely clear that the jailing of chronic alcoholics is punishment. It is not defended as therapeutic, nor is there any basis for claiming that it is therapeutic (or indeed a deterrent). The alcoholic offender is caught in a “revolving door” — leading from arrest on the street through a brief, unprofitable sojourn in jail, back to the street and, eventually, another arrest. The jails, overcrowded and put to a use for which they are not suitable, have a destructive effect upon alcoholic inmates.
Finally, most commentators, as well as experienced judges, are in agreement that “there is probably no drearier example of the futility of using penal sanctions to solve a psychiatric problem than the enforcement of the laws against drunkenness.”

Id. at 564-65, 88 S.Ct. at 2170-71 (footnotes omitted).

But there is an even greater difficulty with my colleagues’ reasoning. It is not simply that the result anticipated by them will not occur. Assume that the result did occur — that the chronic alcoholic was rehabilitated by being imprisoned. That might be useful. But it would be wrong.

Let us suppose a case in which the evidence shows that the defendant did not know what he was doing because he was dead drunk, and that he was dead drunk because he drank a beverage that he honestly and reasonably believed to be harmless but that in fact had a high alcoholic content. My colleagues agree that such a defendant should not be criminally sentenced, Judge BROSKY giving as the reason that as the incident is not likely to happen again, the purposes of prevention and rehabilitation would not be served. BROSKY, J., at 79-81. But the much more fundamental reason such a defendant should be sentenced is that he has done nothing wrong. A prison is not an institution to educate or to heal, like a school or a hospital. We do not — at least, we should not — commit people to prison “for their own good.” But that is what my colleagues say may be done with appellant. I am by no means unmindful of considerations of public safety. I quite agree that our “legal system [must] respond effectively” to actions committed by chronic alcoholics. BROSKY, J., at 82 n. 8. But it is a mistake, I suggest, to assume that the only effective response is resort to the criminal law.

For my part, I see no distinction in principle — that is, as a matter of law — between the case of someone who became involuntarily intoxicated because he did not know what he was drinking, and someone who became involuntarily intoxicated because, while he did know what he was drinking, he could not help drinking it because he was a chronic alcoholic. Of course, there may be a distinction as a matter of fact: The chronic alcoholic may not be able to prove that he was as powerless as he claims he was. That happened in Powell. But that is not the issue here. The issue here is whether he should be permitted to try to prove it. In Powell, the trial judge did permit him to try. Here, the trial judge did not permit him to try, and I believe that was error. For I agree with the five Justices in Powell, that the “cornerstone of the relations between a civilized state and its citizens” is the principle that “[c]riminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.” Id. at 567, 88 S.Ct. at 2171.

The judgment of sentence should be vacated and the case remanded for a new trial consistent with this opinion.

      . Appellant also argues that the District Attorney did not establish due diligence in that four newer cases were tried before appellant came to trial. We know of no requirement that cases be tried in strict chronological order. Nor do we propose to establish such an unworkable requirement.

      . 18 Pa.C.S.A. § 3302.

      . In a later case, following the above-quoted language in Ilgenfritz, that Court chose not to treat the improperly framed issue. Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980).

      . As will be seen below, that issue is properly framed only in the sense that it is the correct issue post-trial. It had its own defects.

      . The factual accuracy of such a condition is not before us here. For purpose of our review, we must assume that if the testimony had been given the fact finder would have credited it.

      . This is also the reason that voluntary intoxication is not a defense; he is responsible for his condition of intoxication. Even if a criminal act was committed as a consequence of intoxication, if he was voluntarily intoxicated, he is held legally responsible for those acts.

      . The dissent interprets our statement here as a denial that appellant would perceive sentencing as punishment. That is not what we have said here; nor would we gainsay the obvious by using that argument. The point is that, if the defense were proved, punishment would not be a basis for justifying sentencing. However, the other purposes of sentencing are met. Once those other purposes are present, appellant’s personal appraisal of sentencing is quite beside the point.

      . The dissent responds that it is wrong to impose sentence on appellant because, if his defense were proved, he would not have done anything wrong. We are not unappreciative of the weight of this response, but, ultimately, we cannot adopt the result the dissent advocates. The dissent undervalues the interests of society in protecting itself from destructive acts. In the instant case a small businessman’s establishment was burned down. A legal system which did not respond effectively to such acts would soon lose its basic validation— its acceptance by the populace.
      In addition, a legal response to this situation has another purpose— as we have mentioned. While it may be that appellant won’t be rehabilitated in prison it is certain that he won’t be burning down anyone else’s business while incarcerated.
      Finally, the dissent seems to overlook the difference between imposing criminal sentence on a person for a status offense, (being an alcoholic), and allowing the imposition of sentence for the commission of criminal acts by not allowing the defense of being an alcoholic.

      . The record reveals that the owner’s insurance allowed him to recover less than a fifth of the $113,000 loss he sustained.

      . Appellant was sentenced after Rule 1410 was in effect. The sentencing court also properly explained appellant’s rights to him at sentencing; thus removing any valid excuse for this failure. Commonwealth v. Dozier, 294 Pa.Super. 249, 439 A.2d 1185 (1982).

      . We comment only on this matter. Such comments are not part of the holding of this opinion.

      . The issue as stated by the appellant is: "Did the court err in not permitting the defense to present the testimony of Mr. Dennis Shapson?" Mr. Shapson is a Staff Psychologist at the Altoona Hospital Community Mental Health Center. The defense made an offer of proof that Mr. Shapson would testify that the appellant is a chronic alcoholic incapable of refraining from the use of alcohol. (N.T. October 23, 1978 at 194-6).

       It is not foreseeable that findings such as those which are decisive here — namely that the appellant’s being intoxicated in public was a part of the pattern of his disease and due to a compulsion symptomatic of that disease — could or would be made in the case of offenses such as driving a car while intoxicated, assault, theft, or robbery. Such offenses require independent acts or conduct and do not typically flow from and are not part of the syndrome of the disease of chronic alcoholism. If an alcoholic should be convicted for criminal conduct which is not a characteristic and involuntary part of the pattern of the disease as it afflicts him, nothing herein would prevent his punishment.

      . It should be noted, however, that the chronic alcoholic may not be precluded from raising a defense based on his condition. Some jurisdictions have accepted a defense of insanity based on the toxic psychosis which can be triggered by the intensive, long-term use of alcohol. See e.g., State v. Plummer, 117 N.H. 320, 374 A.2d 431 (1977), and cases cited therein. But cf., Commonwealth v. Hicks, 483 Pa. 305, 396 A.2d 1183 (1979). However, because this issue is not before us, we do not decide it, nor do I suggest what the court’s decision would be.

      . There is of course a distinction between voluntary and involuntary intoxication. As regards voluntary intoxication, it has been said that “[t]he usual statement of the rule is that intoxication is admissible when relevant to disprove a ‘specific intent’ which is an element of the crime charged, but not to disprove ‘general intent’ when that is the required mental element.” Toll, Pa.Crimes Code Ann. § 308, Model Penal Code Comment, T.D. No. 9, pp. 2-13 (1974). Voluntary intoxication is no longer a defense to specific intent crimes other than murder. 18 Pa.C.S.A. § 308 (1983). As regards involuntary intoxication, we have assumed that proof of involuntary intoxication will negate the specific intent element of a crime. See Commonwealth v. Scarborough, 313 Pa.Super. 521, 533, 460 A.2d 310, 316 (1983) (evidence did not justify involuntary intoxication defense); Commonwealth v. Todaro, 301 Pa.Super. 1, 4-6, 446 A.2d 1305, 1307-8 (1982) (same). See also Commonwealth v. Bridge, 495 Pa. 568, 573 n. 3, 435 A.2d 151, 154 n. 3 (1981) (Discussion of availability of voluntary intoxication as a defense. "We intentionally exclude from our present consideration any state of intoxication not voluntarily induced.”).

      . There is an enormous literature on the nature and causes of alcoholism, see, generally, G. Vaillant, The Natural History of Alcoholism (1983) but given that appellant’s offer of proof must be accepted, this is not the time to go into it; that should be left for trial.


author: MONTEMURO, Judge:

text:
    475 A.2d 117
    VILLAGE BEER AND BEVERAGE, INC. v. VERNON D. COX AND CO., INC. and Edwin Boyer and Frank Fleming and Neshaminy Valley Beer and Soda Centers, Inc. Appeal of NESHAMINY VALLEY BEER AND SODA CENTERS, INC. VILLAGE BEER AND BEVERAGE, INC. v. VERNON D. COX AND CO., INC.; Edwin Boyer; Frank Fleming; and Neshaminy Valley Beer and Soda Centers, Inc. Appeal of VERNON D. COX & CO., INC., Edwin Boyer and Franklin Fleming.
    Superior Court of Pennsylvania.
    Argued Nov. 23, 1983.
    Filed March 23, 1984.
    Reargument Denied June 5, 1984.

      Charlotte Thurschwell, Plymouth, for appellants.
    Hyman Lovitz, Philadelphia, for appellee.
    Before MONTEMURO, WATKINS and HOFFMAN, JJ.
   MONTEMURO, Judge:

This matter is before this court on the consolidated appeals of Vernon D. Cox and Co., Inc.; Edwin Boyer and Frank Fleming; and Neshaminy Valley Beer & Soda Center, Inc.; defendants below. Plaintiff/appellee, Village Beer and Beverage, Inc., brought this action in equity alleging that it had an exclusive lease with defendant/appellants, Boyer and Fleming, and requesting that all defendant/appellants be enjoined from entering into a separate lease which would violate the exclusivity agreement of appellee’s lease. A non-jury trial was held before the Honorable William H. Rufe, III, and an adjudication primarily in the nature of equitable relief, and an amended adjudication in the nature of a monetary award, were rendered. The lower court, en banc, dismissed the exceptions of appellants, and a final decree was entered on March 24, 1982. Timely appeals were filed from this final decree.

Our scope of review of an adjudication in equity is well established. A chancellor’s findings of fact, affirmed by the court en banc, have all the force and effect of a jury’s verdict and will not be disturbed on appeal if there is sufficient evidence to sustain such findings. Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976). This rule is particularly applicable to findings which are predicated upon the credibility of witnesses, whom the chancellor has had the opportunity to hear and observe. Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975). It is equally well settled that a chancellor’s conclusions, whether of law or ultimate fact, are always reviewable as they are no more than his reasoning from the underlying facts. Chambers v. Chambers, 406 Pa. 50, 176 A.2d 673 (1962).

We do not disturb the findings of fact of the chancellor, there being sufficient evidence to support them. Those findings are extensive and we paraphrase their essence: In the fall of 1975, appellee, Village Beer and Beverage, Inc., (hereinafter “Village Beer”) became interested in renting space at the Village Center Shopping Center, which was then under construction in Bensalem Township, Pennsylvania. Village Beer desired to operate a beer distributor business at Village Center Shopping Center, and in order to do so, it first had to purchase a beer distributor license and then get approval of transfer of the license from the Pennsylvania Liquor Control Board. The parties were aware that for one to apply for approval of a license transfer, the applicant had to have a location for his business. The Village Center Shopping Center is owned by appellants, Boyer and Fleming. Appellant, Vernon D. Cox & Co., Inc. (hereinafter “Cox & Co.”) is the exclusive rental agent for the Village Center Shopping Center.

On December 18, 1975, Village Beer entered into a five year lease for rental of stores Nos. 21 and 22 in the Village Center Shopping Center. The parties stipulated that the lease was their total effective agreement, and the lease was made part of the record below. The parties to the lease ratified a handwritten change in the term of the lease, moving the commencement of the term back to February 1, 1976. The lease provides that monthly installments of rent in the amount of $1,266.66, were to be paid in advance on the first day of each month, said rent to begin on the first day of the term of the lease. The lease further provides:

7. Place of Payment. All rent shall be payable without prior notice or demand at the office of the Lessor____
8. Affirmative Covenants of Lessee (a) Payment of Rent. Lessee covenants and agrees that he will without demand
(a) Pay the rent ... at the times and at the place that the same are payable, without fail____
14. Remedies of Lessor. If the lessee (a) Does not pay in full when due any and all installments of rent ...
(d) ... or if for any other reason Lessor shall, in good faith, believe that Lessee’s ability to comply with the covenants of this lease, including the prompt payment
of rent hereunder, is or may become impaired, thereupon:
(1) The whole balance of rent and other charges ... shall be taken to be due and payable....
(2) At the option of Lessor this lease and the terms hereby created shall become absolutely void ... whereupon, Lessor shall be entitled to recover damages for such breach in an amount equal to the amount of rent reserved for the balance of the term of this lease. . . .

A rider prepared by appellee and made a part of the lease provides:

(a) LESSOR reserves and LESSEE covenants to pay to the LESSOR without prior demand therefor being made, as rent for the demised premises:
(1) The annual sum of FIFTEEN THOUSAND AND TWO HUNDRED 00/1oo DOLLARS in equal monthly installments of TWELVE HUNDRED AND SIXTY SIX 66/ioo DOLLARS each, in advance on the first day of each and every month during the five (5) years hereof; i.e., Feb. 1st 1976 to Jan. 31st 1981, [terms of Feb. 1st 1976, and Jan. 31st 1981, are handwritten replacing crossed out typed terms of November 1st 1975 and October 31st 1980]
42. The term of this lease shall begin on the 1st day of the month next following the date such building is completed, and shall continue for a period of five (5) years, from such date of commencement, and LESSEE is notified that it may take possession thereof.
45. It is understood that LESSEE is making application for the transfer of a certain beer distributors’ license with the Pennsylvania Liquor Control Board; therefore, this Agreement is contingent upon the transfer being approved by the Liquor Control Board of Pennsylvania.
46. It is understood that LESSOR will not enter into any tenancy with anyone for the purpose of establishing another beer distributor business in said shopping center.

On February 19, 1976, the officers of Village Beer met with Frank Cox of Cox & Co. Cox was given a check for $1,266.66, the security deposit to be held under the terms of the lease. At that time, Village Beer related that it had not yet purchased a beer distributor’s license, so it would not be taking possession immediately. Cox acknowledged that he understood the problem.

Village Beer never made any payments to Cox & Co. or to Boyer and Fleming other than the security deposit. By letter dated February 24, 1976, Cox requested from Village Beer a check for rent due on February 1, 1976. By letter dated March 4, 1976, Cox requested from Village Beer a check for rent due on February 1, 1976, and March 1, 1976.

In early April, 1976, Cox & Co. began negotiations with appellant Neshaminy Valley Beer & Soda Center, Inc. (hereinafter “Neshaminy”), concerning a lease in Village Center Shopping Center for a beer distributor store. Counsel for Cox & Co. sent a letter dated May 12, 1976, to Village Beer. That letter stated in pertinent part:

This is notice under Section 14(d)(2) that the lessor is exercising his option that the lease is hereby terminated by reason of your failure to pay rent for any month during the term of the lease.
Be advised that the lessor has moved immediately to mitigate damages by leasing the property to another party.

On May 13, 1976, Neshaminy entered into a ten year lease for possession of store No. 1 at Village Center Shopping Center, and presently conducts a beer distributor business there. Village Beer rented space at another shopping center, obtained a license and approval of transfer, and operated a beer distributor business there until it sold its license on or about March 4, 1977.

From these facts, the chancellor concluded that Village Beer’s failure to pay rent in February, March, April, and May of 1976, did not constitute a breach of the lease, and so that lease was in effect until it was anticipatorily breached by Boyer and Fleming’s letter of repudiation of May 12, 1976, and was also breached by Boyer and Fleming’s execution of the lease with Neshaminy on May 13, 1976. Thus, the chancellor fashioned equitable relief which put Village Beer in Neshaminy’s store at Village Center Shopping Center and enforced the Village Beer lease.

The chancellor focused his analysis on a portion of the lease contained within the rider, at paragraph 45: “this Agreement is contingent upon the transfer [of the beer distributor license] being approved by the Liquor Control Board of Pennsylvania.” After pointing out that the word “contingent” created a condition, the chancellor summarily announced that the condition operated as a condition precedent to Village Beer’s obligation to pay rent, and as a condition precedent to Boyer and Fleming’s obligation to turn over possession. Since approval of transfer of license had not been obtained in February, March, April, and May of 1976, the chancellor concluded that the condition precedent had not been fulfilled and Village Beer had no obligation to pay rent. Curiously, the chancellor held that the condition had no effect on the validity of the lease and its remaining provisions, including Boyer and Fleming’s obligation to forebear from renting to another beer distributor business.

A thorough examination of the lease compels us to reject this analysis. Without resort to the language of the condition, other provisions of the lease, or the intent of the contracting parties, the chancellor arrived at a definitive interpretation of the condition which dictated his result. Our review of the lease and application of the principles of contract construction lead us to a contrary interpretation. We must reject the chancellor’s conclusions of both ultimate fact and law.

A lease is in the nature of a contract and is controlled by principles of contract law. Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979). In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished. Unit Vending Corp. v. Lacas, 410 Pa. 614, 190 A.2d 298 (1963). Where the words of the contract are clear and unambiguous, the intent of the parties must be determined from the agreement itself. Kennedy v. Erkman, 389 Pa. 651, 133 A.2d 550 (1957). One part of a contract cannot be so interpreted as to annul another part, but, rather, writings which comprise an agreement must be interpreted as a whole. Shehadi v. Northeastern National Bank of Pennsylvania, 474 Pa. 232, 378 A.2d 304 (1977). Ambiguous language in a contract is to be interpreted most strongly against the party who selected the language. West Penn Realty Co. v. Acme Markets, Inc., 224 Pa.Super. 202, 303 A.2d 836 (1973). Finally, where an act or event mentioned in a contract is not expressly made a condition precedent, it will not be so construed unless such clearly appears to be the intention of the parties. American Leasing v. Morrison Co., 308 Pa.Super. 318, 454 A.2d 555 (1982).

Applying these principles, we first look to the express language of the lease. There is no question that the lease expressly provides for the payment of rent, in advance, due on the first day of each month during the term of the lease. This is stipulated several times in the main body of the lease, as well as in paragraph (a)(1) of the rider. It is also clear that the five-year term of the lease commenced on February 1, 1976 — a date which reflected a modification from the original contract term of November 1, 1975. This modification was effected in both the main body of the lease and the rider by crossing out the typed term and writing in February 1, 1976, by hand. The parties ratified this modification. Furthermore, the lease expressly addresses the remedies of the lessor in the event of the lessee’s failure to pay rent. Specifically, paragraph 14 provides for the acceleration of rental payments for the balance of the term, and gives the lessor the option to treat the lease as void and recover damages in the amount of rent reserved for the balance of the term.

Looking only at these undisputed, unambiguous provisions, the lease is a simple instrument which requires payment of monthly rental starting February 1, 1976, and which distinctly gives the lessor the right to consider the lease void upon the lessee’s failure to pay rent when due. Thus, in the absence of paragraph 45 in the rider, Village Beer’s failure to pay rent in February, March, April, and May of 1976, absolutely acts as a breach giving Boyer and Fleming the option to treat the lease as void.

The question then becomes whether the inclusion of paragraph 45 alters the effect of the lessee’s failure to pay rent such that failure to pay rent does not constitute a breach of the lease. We look to the language of that paragraph:

45. It is understood that LESSEE is making application for the transfer of a certain beer distributors’ license with the Pennsylvania Liquor Control Board; therefore, this Agreement is contingent upon the transfer being approved by the Liquor Control Board of Pennsylvania.

We observe immediately that, on its face, this paragraph is not concerned with the precise contractual details of payment of rent and the features of breach. Its thrust, rather, is on the event of approval or disapproval of the license transfer and the impact of the happening of that event on the agreement. We agree with the chancellor that the described impact is a conditional one; the word “contingent” unmistakably creates a condition. We disagree with the chancellor, however, as to exactly what is made conditional by paragraph 45, and how that condition operates.

Paragraph 45 provides that what is made conditional is “this Agreement.” There is no ambiguity in these explicit words — “this Agreement” identifies the lease between the parties of December 18, 1975. It is the lease itself which is subject to the event of approval or disapproval, not any selected performances thereunder. We are bewildered by the chancellor’s construction that what is made conditional is two contractual duties — to pay rent and relinquish possession — but that the remaining provisions of the lease, including the contractual duty to forbear from renting to another beer distributor business, are unaffected by the condition. There is no foundation for an interpretation of “this Agreement” other than its plain and ordinary meaning. Paragraph 45 makes the total agreement of December 18, 1975, subject to the occurrence of the event.

While the express language of paragraph 45 depicts exactly what is made conditional, that language completely fails to delineate how the condition operates. “[T]his Agreement is contingent upon the transfer being approved” sets forth the event which is not certain to occur — approval — but is not informative as to whether the occurrence of approval initiates the agreement, or whether the failure of the transfer to be approved terminates the agreement; i.e. whether the condition is a condition precedent or a condition subsequent. We must look to the intention of the parties as embodied in the whole agreement and the objects it attempts to accomplish.

We start from the recognition that a condition precedent and a condition subsequent are fundamentally different: a condition precedent must occur before performance under a contract arises, while a condition subsequent acts to discharge a contractual duty after it has already occurred. RESTATEMENT (SECOND) OF CONTRACTS §§ 224, 230 (1981). While conditions usually deal with duties of performance, they may relate to the existence of contracts as well. 5 WILLISTON ON CONTRACTS § 666 (3rd ed. 1961). Thus, if the parties intended to create a condition precedent, “this Agreement” would not arise until approval had occurred; if the parties intended to create a condition subsequent, “this Agreement” would have full force and effect unless and until the Liquor Control Board decided not to approve the transfer of license, at which time the lease agreement would terminate. We find that the latter interpretation is the only one which is consistent with the goals of the contracting parties and other provisions of the lease.

Assuming that the parties created a condition precedent, the interests of neither party would be served. The lease agreement would have no force and effect until approval. This would be detrimental to Village Beer’s interests because Boyer and Fleming would not be obligated to forbear from renting to another beer distributorship until approval. For the provision of forbearance to provide Village Beer with the protection of exclusivity, it would have to have been in continuous effect from the time of execution of the lease agreement. This could not be accomplished if the condition is interpreted as a condition precedent. Likewise, it would not be in Boyer and Fleming’s interests to create a condition precedent. To do so would require them to “reserve” stores Nos. 21 and 22 for an indefinite period of time without the payment of any consideration. They could not rent stores Nos. 21 and 22 to another business, for if approval of Village Beer’s license were granted, they would be liable to Village Beer under the lease. If approval were not granted, Boyer and Fleming would have tied up stores Nos. 21 and 22 and restrained from renting space in the shopping center to any other beer distributor business, without any remuneration or advantage whatsoever.

In addition, to consider the condition as a condition precedent would be to totally disregard other provisions of the lease. The lease is specific in several places, including the rider prepared by Village Beer, that the first rental payment was to be made on February 1, 1976. Why would the parties specify and change a date certain if what they really meant was that the rental obligation arose if and when approval was granted. Such an interpretation is contradictory and we cannot interpret the condition so as to annul other provisions of the agreement. Shehadi, supra. There being no clear intent by the parties to establish a condition precedent, we cannot construe paragraph 45 as such. American Leasing, supra.

On the the other hand, an interpretation of the condition as a condition subsequent accomplishes the objectives of the parties to the lease. With the lease in existence until termination by disapproval, Village Beer would be liable for only those rental payments due from February 1, 1976, until disapproval. Its obligation to pay rent at the rate of $1,266.66 per month for five years would be discharged and the acceleration clause would have no effect. More significantly, Village Beer would be protected from another beer distributor business entering Village Center Shopping Center during the period from execution of the lease until the date of approval/disapproval. As for Boyer and Fleming, they would be compensated for their forbearance and reservation of stores Nos. 21 and 22 by rental payments.

Under all the circumstances, therefore, an interpretation of the condition as a condition subsequent ascribes the most reasonable, probable, and natural conduct to the parties. Unit Vending Corp., supra. We find that it was the intention of the parties to create a condition subsequent in paragraph 45. The lease was in full force from the date of execution, and Village Beer had an obligation to pay rent in February, March, April, and May of 1976. Village Beer’s failure to pay rent constituted a breach under the terms of the lease, Boyer and Fleming exercised their option to terminate the lease, and they were thereafter free to contract with Neshaminy.

Accordingly, we reject the conclusions of ultimate fact and law derived by the chancellor, and we remand for modification of the decree in conformity with this opinion. This court does not retain jurisdiction.

      . After the original adjudication was entered, appellee petitioned for reconsideration on the basis that injunctive relief was no longer beneficial to it, as its circumstances had changed since the time of the trial.

      . The lower court did make a minor modification of its award based on one of the exceptions.

      . The lower court’s findings of fact went on to elucidate Village Beer's difficulties in obtaining a beer distributor’s license (problems in obtaining financing); Neshaminy’s attempts in late April, 1976, to purchase the same license which Village Beer was attempting to acquire; and the actions of Cox & Co. in negotiating a lease with Neshaminy. Since the central issue in the case is one of strict contract interpretation — did Village Beer’s failure to pay rent constitute a breach of the lease — these additional facts are irrelevant. The reason for Village Beer’s failure to pay rent and the actions of the various parties exemplifying their beliefs that the lease was either valid or void after the failure to pay rent, are unrelated to a determination of the actual validity of the lease.

      . Village Beer did not acquire a license until May 10, 1976, and so it could not have even applied for Liquor Control Board approval until after that date.

      . The Restatement has discarded the terminology of “condition precedent" and "condition subsequent”, but the principles remain the same. See also Cambria Savings & Loan Association v. Estate of Gross, 294 Pa.Super. 351, 439 A.2d 1236 (1982).