author: POPOVICH, Judge:

text:
    515 A.2d 10
    Gregory TRICE, Appellant v. Robert B. MOZENTER.
    Superior Court of Pennsylvania.
    Argued April 8, 1986.
    Filed Sept. 11, 1986.

      Andrew J. Jackson, Philadelphia, for appellant.
    Ernest Iannelli, Philadelphia, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County granting a motion for judgment on the pleadings against the plaintiff/appellant, Gregory Trice. We affirm.

Under Pa.R.Civ.P. 1034, a motion for judgment on the pleadings may be granted in cases which are so free from doubt that a trial would clearly be a fruitless exercise. Such a motion is in the nature of a demurrer; all of the opposing party’s well-pleaded allegations are viewed as true, but only those facts specifically admitted by him may be considered against him. In making this determination, a court is to consider only the pleadings themselves and any documents properly attached thereto. Moore v. McComsey, 313 Pa.Super. 264, 459 A.2d 841 (1983).

So viewed, the record indicates that in October of 1974, the plaintiff secured the services of Attorney Robert B. Mozenter to defend him in a criminal matter to be tried in the United States District Court for the Eastern District of Pennsylvania. The end result was plaintiff’s conviction and sentence for fifteen (15) years imprisonment, which he immediately began serving.

The conviction was affirmed without opinion by the Third Circuit Court of Appeals in 1976. Four years later, plaintiff’s petition for a writ of habeas corpus, alleging that he had been inadequately assisted by counsel at trial, was found by the same Court to warrant an evidentiary hearing. Following that proceeding, the District Court entered a ruling finding that, albeit trial counsel had been ineffective, the plaintiff had not been prejudiced by counsel’s conduct. On appeal, the Third Circuit reversed and remanded for a new trial. It did so on the basis that trial counsel had been ineffective in failing to conduct an investigation designed to reveal whether a voice exemplar (purportedly of the plaintiff) and an intercepted recording (the sole evidence linking the plaintiff to the crimes charged) contained the same voice. It was this nonfeasance which the Third Circuit concluded prejudiced Trice because:

... the exemplar evidence, if investigated, “might have led to a viable defense and a [favorable] verdict,” [U.S. v. ] Baynes, 622 F.2d [66] at 69 [3d Cir.1980] ... and that the failure of Trice’s trial attorney so to proceed is not harmless “beyond a reasonable doubt,” Chapman, 386 U.S. at 24, 87 S.Ct. at 828.

United States v. Baynes, 687 F.2d 659, 673 (3rd Cir.1982) (Emphasis in original). Baynes was filed on August 11, 1982, and the plaintiff was released from prison on September 17 of the same year. However, it was not until August 9,1984 that a complaint was filed against the defendant/appellee, Robert B. Mozenter.

The first count of the complaint was in assumpsit and alleged that Mozenter breached his “retainer agreement” by failing, inter alia, to obtain a voice exemplar “pivotal” to the case. Further, the plaintiff claimed to have been unable to “discover” whether Mozenter breached his contract until the August 11,1982 ruling by the Third Circuit that counsel was ineffective. Prior to that date, it was averred, the plaintiff did not possess the expertise to discover that such a breach had occurred. Lastly, it was contended, Mozenter’s breach caused the plaintiff to suffer extreme emotional and physical injury, distress and trauma which he would continue to endure.

The second count sounded in trespass and contended that Mozenter’s acts of omission, one of which referred to the failure to secure the voice exemplar, rendered his services less than effective, was the cause of the plaintiff’s conviction and deprived him of his freedom for over five and one-half (5V2) years. Also, such conduct (negligence and carelessness) impaired the plaintiff’s earning capacity and caused him trauma, injury and distress which would continue into the future. In both counts, damages in excess of $20,000.00 were demanded, as well as a separate count for an equal amount in punitive damages for such gross and wanton conduct on the part of Mozenter.

In Mozenter’s answer, he denied in material part all of the plaintiff’s allegations, albeit he did admit to being retained and hired (for a sum certain) to defend the plaintiff in a criminal suit. In the new matter portion of the reply, Mozenter attributed the conviction to the plaintiff’s contravention of the criminal statutes charged and not to any conduct on his part. To the extent that the plaintiff may have been injured by the allegedly tortious conduct or breach of contractual duty by Mozenter, he (the plaintiff) was aware of the same by March 25,1975 (sentencing date), February 17, 1977 (initial appeal of sentence affirmed), October 31, 1978 (date affidavit in support of Motion To Vacate Judgment signed by the plaintiff), November 3, 1978 (date Memorandum in support of Motion To Vacate Judgment filed), June 30, 1980 (per curiam opinion of Third Circuit remanding for ineffectiveness hearing at 622 F.2d 66), or March 30, 1980 (Memorandum Opinion of District Court denying, ineffectiveness claims). Any one of the aforementioned points in time would, as viewed by Mozenter, bar the plaintiffs cause of action as violative of the statutes of limitations as set forth in 42 Pa.C.S. § 5524(2) (providing a two-year limitation period for injury caused by the negligence of another) or § 5525(3) and (4) (allowing a four-year limitation period for a contract implied in law or an express contract not founded upon an instrument).

Trice, in his response to the defendant’s new matter, admitted to having read: 1) the October 31, 1978, Affidavit in Support of Motion to Vacate Judgment, along with signing it (Exhibit C); 2) the Memorandum of Law in support of the same dated November 3, 1978, along with executing it (Exhibit D); 3) the June 10, 1980, opinion of the Third Circuit affording him an evidentiary hearing on his Affidavit (Exhibit E); and 4) the March 19, 1981, Memorandum and Order of District Court denying relief after evidentiary hearing (Exhibit F). In each, counsel’s effectiveness was either called into question or found not to have been prejudicial to the plaintiff. However, the plaintiff specifically denied understanding the contents of any of the aforecited exhibits. (See Points 5, 7, 9 and 11).

Likewise, in Points 12-17, the plaintiff denied having knowledge of the tortious conduct or breach of contractual duty prior to the August 11, 1982 decision of the Third Circuit holding his trial counsel ineffective and awarding a new trial. As for the applicable statute of limitations, the plaintiff asserted that calculating from the August 11, 1982 date would make his cause of action timely regardless to which statute one looked.

On July 12, 1985, the defendant filed a Motion For Judgment on the Pleadings referring to the affirmative defenses (statutes of limitations) raised in his answer and new matter (passim), the plaintiffs responses of lack of knowledge and misunderstanding thereto, and that the plaintiffs cause of action, although denominated in assumpsit in count I of the complaint, was actually a claim for injury to the person controlled by the two-year statute of limitations under 42 Pa.C.S. § 5524(2). Therefore, it was contended, the statute of limitations began to run when the plaintiff was convicted (February 1, 1975) and/or incarcerated (March 25, 1975). Accordingly, with the initiation of the complaint some nine (9) years after what the defendant interpreted to be an “injury to the person” claim, the institution of the suit in assumpsit was time-barred. This was so, the defendant offered, irrespective of whether one viewed the suit as one in assumpsit (two-year limitation) or breach of contract (six-year limitation).

Additionally, the defendant wrote that the plaintiffs trespass count was controlled by a two-year statute of limitations which began to run when the negligent act complained of was “done or discovered”. The defendant continued that here, “[ijnasmuch as plaintiff by Motion filed November 3, 1978, first raised the claim that defendant was negligent, at the very latest he had to have been aware of the negligent act at that time.” Thus, a dismissal of the plaintiffs complaint was requested.

In a Memorandum in support of the Motion, the defendant conceded that “[a] retainer agreement was signed by the parties” in or about October of 1974, with representation terminating with the affirmation of the judgment and, thereafter, the denial of a rehearing on February 17,1977— seven and one-half (7V2) years prior to the commencement of the suit.

Under any of the theories of recovery advanced by the plaintiff, be they in assumpsit (contract) or trespass (tort), the defendant proffered that all causes of action were foreclosed because of untimeliness — an affirmative defense which could not be circumvented by mere allegations of unawareness or lack of expertise on the part of the plaintiff to discover the malpractice, since in 1978 the plaintiff’s affidavit in support of his motion to vacate the judgment indicated knowledge of the alleged impropriety.

In answer, the plaintiff denied in relevant part the allegations of his awareness of any factual basis sufficient to characterize his “discovery” of the breach of any contract before the August 11,1982 Third Circuit ruling in his favor. Similarly, a Memorandum was attached to bolster his position that, despite reasonable diligence, he was unable to ascertain what harm or injury was sustained until the date just stated. Therefore, his suit was timely whether viewed under a two-year (personal injury), four-year or six-year (contract) statute. In any case, the plaintiff urged that his reasonable diligence was a question for the jury to decide.

With all of the aforementioned before the court, the ruling that followed was in favor of the defendant, “it being the opinion of the Court that the statute of limitations in th[e] matter had run.” In support of the one paragraph order and opinion was cited McComsey, supra. A timely appeal followed.

The plaintiff raises five (5) issues for our consideration, all of which can be disposed of after the resolution of when the right of the plaintiff/client to prosecute his cause of action accrued. Once this is determined, the proper statute of limitations can be applied to ascertain the timeliness of the suit.

Under the law of Pennsylvania, it is the duty of one asserting a cause of action against another to use all reasonable diligence to inform himself properly of the facts and circumstances upon which the right of recovery is based and to institute the suit within the prescribed statutory period. Schaffer v. Larzelere, 43.0 Pa. 402, 405, 189 A.2d 267, 269 (1963). As synthesized most recently by our Supreme Court, this means that, “... in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion.” Kapil v. Association of Pennsylvania State College and University Faculties, 504 Pa. 92, 99, 470 A.2d 482, 485 (1983). “Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises[.]” Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983).

A necessary corollary to the aforementioned precepts is the determination of the elements necessary to prove one’s cause of action. As is relevant herein, this Court has had occasion to delineate the criteria which must be established to bring a suit for professional negligence. They are three in number and consist of the following:

1. The employment of the attorney or other basis for duty;
2. The failure of the attorney to exercise ordinary skill and knowledge; and
3. That such negligence was the proximate cause of damage to the plaintiff.

Schenkel v. Monheit, 266 Pa.Super. 396, 399, 405 A.2d 493, 494 (1979). Accord Gans v. Gray, 612 F.Supp. 608, 615 (E.D.Pa.1985); Duke & Co. v. Anderson, 275 Pa.Super. 65, 71, 418 A.2d 613, 616 (1980). Additionally, the plaintiff must establish by a “preponderance of the evidence” that he/she would have prevailed in the underlying action in order to be awarded damages in the malpractice action. This has been interpreted to mean that “ ... when it is alleged that an attorney has breached his professional obligations to his client, an essential element of the cause of action, whether the action be denominated in assumpsit or trespass, is proof of actual loss.” Duke & Co. v. Anderson, supra, 275 Pa.Super. at 73-74, 418 A.2d at 617. Accord Gans v. Gray, supra; Mariscotti v. Tinari, 335 Pa.Super. 599, 485 A.2d 56 (1984); Pashak v. Barish, 303 Pa.Super. 559, 450 A.2d 67 (1982). In the same vein, damages are considered speculative only if the uncertainty concerns the fact of damages rather than the amount. See Pashak v. Barish, supra.

Examining the last element first, no one would dispute that the plaintiff’s incarceration is a harm (“loss”) incurred by him. Cf. Little v. York County Earned Income Tax Bureau, 333 Pa.Super. 8, 18, 481 A.2d 1194, 1200 (1984) (“With [an] intentional tort[ ] such as false imprisonment ..., the harm suffered by plaintiffs is considered to be damage in and of itself.” (Citation omitted)). As a result, this fact of damages cannot be said to be in doubt. On the contrary, the plaintiff commenced serving his sentence immediately after its imposition in 1975.

With his confinement, the plaintiff, acting pro se, decided to advance his own case on the grounds of the ineffectiveness of trial and appellate counsel (Mozenter). This course was pursued, initially, with the filling out of a federal form captioned “Motion To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody”. It was sworn and subscribed to October 31, 1978, and alleged, in detail, three grounds for relief. The first questioned the prosecutorial suppression of evidence supposedly favorable to the plaintiff, which would have warranted a directed verdict. Facts supportive of this claim took up thirteen typed lines on the form. The remaining two contentions centered upon the ineffectiveness of trial counsel in failing to request disclosure of exculpatory evidence (“Spectrogram Voice Exemplar Test”), and in failing to take judicial exception to the trial court’s qualification of an expert on voice identification. Twenty typed lines were expended in setting forth the plaintiff’s legal contentions regarding the ineptness of counsel.

In a document of even date submitted to the trial judge with the legend “Affidavit In Support Of Motion To Vacate Judgment”, the plaintiff averred he had “ineffective assistance rendered” to him in not having had, “through counsel, the opportunity to submit [voice identification] evidence to an independent research facility which specialized in spectrographic analysis, which would have in fact determined [his] total innocence____” (Point 15) Also, this seven-page, fifteen-point typed document made reference to the plaintiff, prior to jury selection, “informing” counsel of his (plaintiffs) request that “a motion for discovery be submitted, so he could obtain the necessary exemplars” to have them tested by an independent firm. This same plea was made by the plaintiff at the close of the government’s case without success. Even after the jury returned its verdict, but prior to sentencing, the “petitioner submitted a pro se motion ... [to] the court, relative to the exemplars.” (Point 10)

The course of events continued after sentencing by assailing counsel’s stewardship for not raising the voice exemplar matter on appeal. This was followed by a “Memorandum of Law in Support of Motion to Vacate Judgment” filed with the Clerk of the United States District Court for the Eastern District of Pennsylvania on November 3, 1978, by the plaintiff, pro se. In subsection [B], counsel’s competency was called into question for permitting, without objection, a government witness (Agent D’Amico) to qualify to identify Trice from voice-prints taken to determine the identity of speakers using the phone to sell/purchase drugs.

Further, it cannot be discounted that this pro se, five-page legal recitation of the law, supportive of the plaintiff's contention relative to prosecutorial suppression of evidence, shows an understanding of the nuances that pervade the law in the area of “voice exemplars”. To state otherwise would be to ignore the obvious grasp by the plaintiff of what was transpiring in his case, from a legal standpoint, and his efforts to ameliorate the perceived wrong.

Suffice it to say, based on our review of the record, the plaintiff knew or should have known that he had sustained an injury by the date he signed the Motion, Affidavit and Memorandum in support of his contention that trial and appellate counsel was ineffective. Cf. Chandler v. Johns-Manville Corp., 352 Pa.Super. 326, 333, 507 A.2d 1253, 1257 (1986) (“... the signing of the workmen’s compensation claim focused on a date by which all of the elements of requisite knowledge came together so that the court could justifiably determine that the appellant had two years from that date in which to file his complaint.”). This is also the point in time by which the plaintiff had lost all confidence in his counsel’s stewardship, and should have prompted him to act. Cf. Held v. Neft, 352 Pa.Super. 195, 202, 507 A.2d 839, 842 (1986) (“ ... the statute of limitations ... began to run from the time Held lost confidence in Dr. Neft____”).

We find that, premised on the defendant’s cessation of representation of the plaintiff in 1977 and the plaintiff’s cognizance of his legal rights, as evidenced by the trio of memorandae filed with the trial court, that the plaintiff’s cause of action bore fruition in 1978. Thus, it matters not which one of the statutes of limitations we use to gauge the timeliness of the plaintiff’s suit, be it the two-year (42 Pa.C.S. § 5524(2)) or four-year (42 Pa.C.S. § 5525(3) and (4)) law, the fact remains that the complaint was filed beyond the strictures of the applicable statutes when presented to the prothonotary of Philadelphia County in August of 1984.

Therefore, our determination that the plaintiff knew or had reason to know of his injury by 1978 dispenses with the need to resort to the “discovery rule”, which permits deferral of the accrual of a cause of action until the injured party knows or should know that he has sustained an injury or knows or should know that an injury of which he is aware is attributable to the fault of another. See Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985). Ergo, the plaintiff need not have waited until the ruling of the Third Circuit on his ineffectiveness claim. Cf. Moore v. McComsey, supra, 313 Pa.Super. at 271, 459 A.2d at 845 (“The fact that appellant filed a P.C.H.A. petition in the criminal action alleging ineffective assistance of counsel was entirely inadequate to toll the running of the statute on the civil action.”).

Finally, we note that it was proper for the court below to have decided whether the statute of limitations had run, since the question was one of law for the judge, and not a factual determination, i.e., what was a reasonable period of time to have delayed in commencing suit, which would have been for a jury to decide. Smith v. Bell Telephone, 397 Pa. 134, 153 A.2d 477 (1959).

We have scrutinized all of the plaintiffs claims, of which the timeliness question is unique in that it has not yet been treated, and found them to be wanting. Accordingly, we will affirm the order of the lower court granting the defendant’s pretrial motion for judgment on the pleadings.

      . The cases on this issue appear to be divided into two categories, one of which is relevant to our concern in that it relates to whether an attorney has been negligent through his actions or inactions. See 32 A.L.R. 4th 260, § 2 at 266.

      . Cf. Levin v. Berley, 728 F.2d 551, 554 (1st Cir.1984) (" ... attorney malpractice cause of action only accrues when attorney-client relationship ends." (Citation omitted)).

      . Unlike the plaintiff, we fail to discern how § 5527(2)’s six-year statute of limitations is applicable to the case at bar, given the absence in the record of an "instrument in writing” and, as referred to in § 5527(6), the fact that the cause of action is subject to another limitation — mainly, § 5524(2) (“An action to recover damages for injuries to the person----”) (Trespass), or § 5525(3) (Express contract not founded upon a writing or § 5525(4) (Contract implied in law) (Assumpsit). See also 2 A.L.R. 4th 284.

      . The plaintiffs ability to pursue his complaint under the appellation of assumpsit or trespass (see Guy v. Liederbach, 501 Pa. 47, 57, 459 A.2d 744, 748 (1983)), requires the assessment of the cause of action under both time-statutes.

      . For the sake of clarification, we wish to note that we did not discuss in detail the first, second and third prongs of a malpractice suit. Rather, we incorporated-proof of same in our discussion of the case as a whole, and as part and parcel of the examination of the "accrual" of the cause of action issue.


source: Caselaw Access Project

author: ROBERTS, Judge:

license: Public Domain

text:
    515 A.2d 16
    Helen Betz McMICKLE, Executrix of Estate of Matilda S. Betz, Appellant, v. GIRARD BANK.
    Superior Court of Pennsylvania.
    Argued May 13, 1986.
    Filed Sept. 15, 1986.

      Donald Hayes, Philadelphia, for appellant.
    Kenneth C. Frazier, Philadelphia, for appellee.
    Before CAVANAUGH, WICKERSHAM and ROBERTS, JJ.
   ROBERTS, Judge:

The sole issue presented for our review is whether a bank properly has made available to its customer a statement of account when the bank has sent this information to an attorney, designated by the customer, who later is found to have forged checks with the customer’s name. If the bank has met its obligation of making the financial records available, then 13 Pa.C.S.A. § 4406(d) imposes a duty on the customer to discover and report to the bank any unauthorized signature that appears on an item listed in the statement within one year. Here, the trial court held that the bank had met its statutory duty of informing the customer and, consequently, the customer was obligated to notify the bank of the challenged payment. Because the customer failed to notify the bank in accordance with the one-year statute of limitation, the trial court concluded that the customer was barred from maintaining an action for unauthorized payment of forged checks. . We agree and, therefore, affirm the order dismissing the present claim.

The relevant undisputed facts are: plaintiff-appellant, Helen Betz McMickle, was appointed executrix of the estate of her mother, Matilda Betz. In carrying out her duties as executrix, McMickle opened a checking account with defendant-appellee, Girard Bank. Additionally, she retained the services of attorney Frederick D. Duden, as counsel for the estate. McMickle designated Duden as the person who should receive bank statements and cancelled checks from Girard.

Duden subsequently forged McMickle’s name on two checks. He perpetrated the fraud by informing McMickle that checks needed to be drawn on the account for the payment of federal and state taxes. Having indicated to McMickle the amounts of the necessary payments, Duden then prepared the forged checks, naming himself as the payee rather than the appropriate government agency. The first check, in the amount of $18,058.50 and dated May 27, 1976, was shown as having been paid in the June 4, 1976 statement sent by Girard to Duden. The second check, in the amount of $22,100.00 and dated June 30, 1976, was reflected in the July 7, 1976 statement. Although the record establishes that McMickle inspected the cancelled checks and statements in late 1976 and again in September of 1979, it was not until January of 1980, after learning of Duden’s disbarment and imprisonment for prior thefts from estates, that McMickle notified Girard and demanded reimbursement for the amount paid on the challenged checks.

Section 4406(d) imposes an absolute one-year time limit for a customer to notify his or her bank of the unauthorized signature. The statute provides:

Without regard to care or lack of care of either the customer or the bank a customer who does not within one year from the time the statement and items are made available to the customer (subsection (a)) discover and report his unauthorized signature or any alteration on the face or back of the item ... is precluded from asserting against the bank such unauthorized signature or indorsement of such alteration.

13 Pa.C.S.A. § 4406(d). See Hardex-Steubenville Corp., Inc. v. Western Pennsylvania National Bank, 446 Pa. 446, 285 A.2d 874 (1971) (applying former codification of § 4406(d) in 12A Pa.S. § 4406(4)). The only prerequisite to the imposition of the one-year statute of limitations is that the bank make “available” to the customer a statement of account and the accompanying items. Here, despite McMickle’s argument to the contrary, it must be concluded that Girard made “available” the necessary financial records in 1976.

As the court found, McMickle had designated a person to receive the statements of account and cancelled checks. It surely now would be patently unjust, as well as a total disregard for the plain language of § 4406, to subject Girard to liability because it in good faith followed McMickle’s instruction. Section 4406(a), in pertinent part, provides that a bank may make the statement and related items available to the customer in a “reasonable manner.” Girard’s sending the required records to Duden, the party designated by the executrix to be the recipient, constitutes a “reasonable manner” in which to make this information “available” to McMickle. Having chosen the means by which Girard should inform her of the financial status of the estate account, McMickle now is precluded from asserting the items and statements were not made “available” in a “reasonable manner.”

By enacting § 4406(d), the legislature has placed the responsibility with the customer to detect unauthorized signatures within one year after a bank provides the necessary financial records. Here, Ms. McMickle did not inform Girard of the perpetrated fraud until January of 1980, approximately three and one-half years after Girard had provided her with the two account statements containing the two challenged payments. Clearly, Ms. McMickle has not met the duty of notifying Girard within one year after she was provided information of the financial activity in the account.

Accordingly, pursuant to 13 Pa.C.S.A. § 4406(d), Ms. McMickle is barred from maintaining a claim of unauthorized payment against Girard.

Order affirmed.

      . 13 Pa.C.S.A. § 4406 codified § 4-406 of the Uniform Commercial Code. See Act of November 1, 1976, P.L. 255, No. 86, § 1, effective Jan. 1, 1980.


author: HOFFMAN, Judge:

text:
    515 A.2d 18
    COMMONWEALTH of Pennsylvania v. Calvin MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1986.
    Filed Sept. 16, 1986.

      Pamela P. Cohen, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order denying appellant’s petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551. Appellant contends that (1) his former counsel were ineffective for failing to raise the following issues: (a) the prosecutor made improper remarks during his closing argument, (b) the trial court failed to recite the entire voluntary manslaughter statute in its instructions to the jury, and (c) the trial court erred in admitting a witness’s testimony that she was threatened by appellant’s friends, and (2) counsel who represented appellant in his appeal from his first PCHA petition was ineffective because he was an assistant district attorney at the time the petition was considered in the trial court. We disagree and, accordingly, affirm.

Appellant was found guilty of first degree murder in July, 1975 and was subsequently sentenced to a term of life imprisonment. On direct appeal our Supreme Court affirmed the judgment of sentence. Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978). Appellant then filed his first PCHA petition, which was denied by the trial court. This court affirmed, Commonwealth v. Martin, 323 Pa. Superior Ct. 619, 470 A.2d 1042 (1984) (per curiam), and our Supreme Court denied allocatur. On August 6,1984, appellant filed the instant petition, which was denied on June 11, 1985, and this appeal followed.

Appellant first contends that the prosecutor made an improper remark during his closing argument, and that all of his former counsel were ineffective for failing to raise this issue. When confronted with a claim of ineffectiveness of counsel, a reviewing court must first determine whether the issue underlying the claim of ineffectiveness is of arguable merit and, if so, whether the course chosen by counsel had a reasonable basis designed to serve the interests of his or her client. Commonwealth v. Buehl, 510 Pa. 363, 377-380, 508 A.2d 1167, 1174-75 (1986). Moreover, appellant must demonstrate that counsel’s ineffectiveness worked to his or her prejudice. Id. (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967)).

Appellant alleges that the following remark was prejudicial:

When I finish my argument I will have done my duty, but it’s all for naught, all for zero, and all for nothing in this case, unless you do you duty and I ask you now as I promised you I would at the outset of this case to find this defendant, Calvin Martin, guilty of first degree murder.

N.T. July 7, 1975 at 383. Comments by a district attorney do not constitute reversible error unless “the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the

defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Beasley, 504 Pa. 485, 492, 475 A.2d 730, 734 (1984). See also Commonwealth v. Pursell, 508 Pa. 212, 226, 495 A.2d 183, 190 (1985). In the instant case, the prosecutor’s remark was entirely proper and we cannot discern any way in which this argument may have prejudiced the jury. Thus appellant’s counsel was not ineffective for failing to raise this issue. See Commonwealth v. Buehl, supra, 510 Pa. at 379, 508 A.2d at 1175 (counsel will not be deemed ineffective for failing to raise meritless claim).

Appellant next contends that all of his former counsel were ineffective for failing to object to the trial court’s jury charge on voluntary manslaughter. Appellant argues that the lower court erred by not including the entire voluntary manslaughter statute in its charge. Specifically, the court did not instruct the jury with respect to unreasonable belief killing. See N.T. July 7, 1975 at 404-05. The statute defining voluntary manslaughter provides:

(a) General rule. — A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
(b) Unreasonable belief killing justifiable. — A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes that circumstances to be such that, if they existed, would justify the killing ... but his belief is unreasonable.

18 Pa.C.S.A. § 2503. Our Supreme Court has held that the “unreasonable belief” manslaughter charge need be given to the jury only when requested, when the offense is an issue in the case, and when there is trial evidence to support such a verdict. Commonwealth v. Carter, 502 Pa. 433, 443, 466 A.2d 1328, 1332-33 (1983). Here, there was no evidence at trial to support a charge based on unreasonable belief killing. Thus, counsel was not ineffective for failing to raise this claim. See Commonwealth v. Buehl, supra.

Appellant next contends that all of his former counsel was ineffective for failing to object to certain testimony that was admitted at trial. Commonwealth witness Maryanne O’Bryant testified at trial that she had overheard certain incriminating information. At the preliminary hearing, however, she had testified that she had not overheard anything. On cross-examination at trial, when asked why she changed her testimony, the witness explained that she had given her first answer because she had been threatened by appellant’s friends. N.T. June 30, 1975 at 148. Appellant argues that the court erred in admitting this testimony.

It is true that ‘[tjhreats by third persons against ... witnesses are not relevant unless it is shown that the defendant is linked in some way to the making of. the threats.’ ” Commonwealth v. Carr, 436 Pa. 124, 127, 259 A.2d 165, 167 (1969) (quoting Commonwealth v. Banker, 211 Pa. Superior Ct. 430, 432, 236 A.2d 530, 531 (1967) (HOFFMAN, J., dissenting) (citations omitted), allocatur denied). When the evidence in question is not offered to prove the defendant’s guilt, but to explain a witness’s prior inconsistent statement, however, it is admissible. Commonwealth v. Carr, supra; Commonwealth v. Bryant, 316 Pa. Superior Ct. 46, 51, 462 A.2d 785, 788 (1983).

Here, we note first that the witness explicitly stated that the threats came from appellant’s friends and in no way attributed them to appellant. See N.T. June 30, 1975 at 148-49. Even assuming that the statements could be linked to appellant, the witness so testified in order to explain her prior inconsistent statement; the testimony was not offered to prove appellant’s guilt. Accordingly, appellant’s former counsel were not ineffective for failing to raise this issue. See Commonwealth v. Buehl, supra.

Appellant last contends that his counsel for his appeal from his first PCHA petition was ineffective because he was a member of the Philadelphia District Attorney’s office at the time appellant’s PCHA petition was heard before the lower court. We cannot conclude that counsel was ineffective on this ground. Appellant has not shown any manner in which he was prejudiced by his counsel’s former employment.

For the foregoing reasons, we affirm the order of the trial court.

Affirmed.

       Appellant’s counsel states in her brief that, "[a]fter a complete and careful review of the record and the pertinent law, counsel is unable to develop facts or arguments which would support Petitioner’s request for relief under the Post Conviction Hearing Act. Counsel respectfully requests permission to withdraw from further representation.” Brief for Appellant at 5.
      Counsel never filed a petition to withdraw with this Court. Thus, we will address the issues appellant has raised without ruling on counsel’s request to withdraw. We note that counsel has purported to withdraw pursuant to the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). In following those requirements, it is improper for counsel to argue against his or her client: flagging the issues would have been sufficient. See Commonwealth v. Thomas, 354 Pa.Superior Ct. 87, 90-93, 511 A.2d 200, 201-02 (1986). We also note that the Commonwealth improperly relied on appellant’s brief and the lower court opinion as its sole support for arguing that this appeal is meritless. ”[T]he Commonwealth should respond to an Anders brief by arguing why the issues set forth therein are meritless.” Id., 354 Pa.Superior Ct. at 95, 511 A.2d at 204.


author: CIRILLO, President Judge: McEWEN, Judge,

text:
    515 A.2d 21
    Charles BORIS and Deborah Boris, H/W, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY and Penna. Trial Lawyers Assoc. (AMICUS CURIAE).
    Superior Court of Pennsylvania.
    Argued May 12, 1986.
    Filed Sept. 18, 1986.

      Mary L. Schmidt, Philadelphia, for appellants.
    Lawrence L. Robinson, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, McEWEN, DEL SOLE, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   CIRILLO, President Judge:

Is an employee who collects workmen’s compensation benefits following a work-related motor vehicle accident precluded from obtaining uninsured motorist benefits under his employer’s fleet policy?

Appellant Charles Boris (his wife, Deborah, is co-appellant) was driving a truck for his employer, Buckley and Company, when he was run off the road by an uninsured motorist. He suffered injuries to his knee and back. Despite extensive medical treatment, he continues to suffer from the pain of those injuries.

Buckley and Company carries both workmen’s compensation and uninsured motorist insurance through appellee Liberty Mutual Insurance Company. Under the latter policy, each of Buckley’s 67 vehicles is insured to the extent of $30,000.00 against injuries caused by uninsured motorists; if there is a dispute between the insurer and insured over coverage liability, a standard arbitration clause in the contract dictates that the controversy be submitted to arbitration. This clause was invoked when Mr. Boris sought uninsured motorist benefits, and pursuant to that clause, the third arbitrator on the panel was appointed by the court, since the parties could not agree on one. The subsequent arbitration resulted in an $841,569.00 award to appellant.

Upon petition by Liberty Mutual, the Honorable Alfred J. DiBona of the Philadelphia Court of Common Pleas reviewed the award and concluded the panel made an egregious error of law in awarding uninsured motorist benefits to Mr. Boris. Judge DiBona found workmen’s compensation to be the sole remedy, and accordingly vacated the award. This is an appeal from that order. In support of appellant’s position, the Pennsylvania Trial Lawyers Association has filed a separate brief as amicus curiae.

Initially, we consider appellants’ contention that Liberty Mutual waived its defense of workmen’s compensation as sole remedy. In appellants’ view, Liberty Mutual improperly waited until the arbitration hearing to present the defense; it should have first been raised under a “new matter” hearing in an answer to Mr. Boris’ petition seeking appointment of an arbitrator.

It is true that Pa.R.Civ.P. 1030 requires all affirmative defenses to be set forth in a responsive pleading. We also agree that Liberty Mutual’s defense is an affirmative one, although it is not one of “immunity”, as appellants suggest. Nonetheless, Liberty Mutual did not waive its defense because Rule 1030 cannot control here. Appellants seek to impose a duty to plead new matter in response to a petition for appointment of an arbitrator. The petition does not set forth any substantive legal arguments, and pursuant to Pa.R.Civ.P. 1007 is not a “pleading” which can properly commence a civil action. It would be anomalous to impose the pleading burdens of a civil action on a party responding to a mere petition, especially since there is no duty to answer such a petition in the first instance. In reaching this conclusion, we observe that the policy itself states only that the proceedings shall be conducted in accordance with the Arbitration Act of 1927, and makes no mention of the applicability of the civil procedure rules. Compare Cassidy v. Keystone Insurance Company, 322 Pa.Super. 168, 469 A.2d 236 (1983) (rules of civil procedure applied to service of process in arbitration setting because insurance policy expressly required such compliance with service rule).

In the alternative, appellants argue that Liberty Mutual, its defense being one of “immunity”, should have simply objected to the petition for appointment of an arbitrator. In other words, the defense was waived because Liberty Mutual submitted to the court’s jurisdiction. This contention is meritless, because the defense is not truly one of immunity, despite the fact that even Liberty Mutual itself refers to it as such in its brief. As Black’s Law Dictionary defines the term, immunity is a “freedom from duty or penalty” such as governmental tort immunity. Here, Liberty Mutual is not patently immune from the duty to pay benefits; to the contrary, it is only relieved of such obligation if its defense is accepted as valid. Thus, a lack of jurisdiction argument would be fruitless.

In the final prong of their multi-faceted waiver argument, appellants maintain that by including an arbitration clause in the insurance policy, Liberty Mutual tacitly admits that employees are entitled to uninsured motorist benefits. Again, we disagree. This position overlooks the fact that at some point in time one of Buckley’s vehicles might be operated by a non-employee who is ineligible for workmen’s compensation.

We turn now to the substantive issues before us. Liberty Mutual, in urging that workmen’s compensation is the sole remedy available, relies primarily on Wagner v. National Indemnity Company, 492 Pa. 154, 422 A.2d 1061 (1980), and Turner v. Septa, 256 Pa.Super. 43, 389 A.2d 591 (1978). These cases and others cited hold that insofar as workmen’s compensation was created to replace suits by employees for damages caused by possibly negligent employers, such litigation will not be allowed when the employee has obtained workmen’s compensation. Further, as the Workmen’s Compensation Act, 77 Pa.S. § 1, specifically provides, the employer’s insurer shall enjoy the same freedom from suit as does the employer-insured. Additionally, Liberty Mutual asserts that the Workmen’s Compensation Act was enacted after the Uninsured Motorist Act, 40 Pa.S § 2000, yet nonetheless stated that workmen’s compensation was an exclusive remedy, making no mention of a possible Uninsured Motorist Act recovery. We reject Liberty Mutual’s contentions, for they misconstrue the purpose and scope of the Workmen’s Compensation Act.

In the face of a proliferation of suits initiated by injured employees, the Workmen’s Compensation Act was enacted to provide an efficient means of compensating aggrieved workers without litigating the issue of employer negligence. Recovery under the Act is a complete replacement for suit against the employer; the employee receives the statutory recompense for his work-related injury, and may not then seek to litigate those same damages. See generally U.S. v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966); 42 Pennsylvania Law Encyclopedia 1 (1975). Further, the Act specifically provides that the employer’s insurance carrier shall enjoy the same freedom from suit as does the employer itself. 77 Pa.S. § 501. This is entirely logical as it relates to the carrier of no-fault insurance benefits, for such coverage ultimately results in litigation of the employer’s negligence despite the fact that the employer was not sued directly by the employee.

However, the employer’s freedom from suit under the Workmen’s Compensation Act does not logically extend to the carrier of uninsured motorist benefits. The injured employee who seeks such coverage asserts only that he was injured at the hands of some third party who was not adequately insured. The employer cannot be implicated in such wrongdoing in the slightest. Indeed, the law is clear that when an employee seeks to recover damages from some third party, the employer may not be joined as an additional defendant or involuntary plaintiff. Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 465 A.2d 609 (1983) ; Anskis v. Fischer, 326 Pa.Super. 374, 474 A.2d 287 (1984) ; Bartley v. Concrete Masonry Corp., 322 Pa.Super. 207, 469 A.2d 256 (1983); Kelly v. The Carborundum Company, 307 Pa.Super. 361, 453 A.2d 624 (1982), aff'd 504 Pa. 238, 470 A.2d 969 (1984).

Naturally, the Workmen’s Compensation Act makes no mention of recovery under the earlier-passed Uninsured Motorist Act. A claim submitted under the latter is wholly unrelated to the employer’s activities and gives no cause for the employer to assert any sort of “immunity”. In turn, there is no freedom from suit for the uninsured motorist carrier to “borrow” in this context. In sum, the fact that an employee’s claim for uninsured motorist benefits only addresses the wrongs of a third party, and not the employer, takes a claim for such benefits outside the scope of the “immunity” created by the Workmen’s Compensation Act. Insofar as Turner and Wagner, supra, addressed workmen’s compensation as it relates to a no-fault claim (which can involve litigation of employer negligence), appellee’s reliance on those cases is entirely misplaced.

In reaching our decision, we keep in mind that the Workmen’s Compensation Act is not as exclusive as Liberty Mutual would have us believe. For example, the Act was never intended to strip from an injured employee the right to maintain an action against a third party tortfeasor. See Gillespie v. Vecenie, 292 Pa.Super. 11, 436 A.2d 695 (1981). Indeed, an action can lie against the employer itself if it harmed its employee through an intentional wrongful act. See Jones v. P.M.A. Insurance Company, 343 Pa.Super. 411, 495 A.2d 203 (1985); see generally Higgins v. Clearing Machine Corp., 344 Pa.Super. 325, 496 A.2d 818 (1985); Annot., 96 A.L.R.3d 1064 (1980). These considerations bolster our conclusion that the “exclusivity” of the workmen’s compensation remedy cannot be read as anything more than a realization that the employee cannot “have his cake and eat it, too”; he obtains the more efficient and expeditious statutory remedy to the exclusion of a suit against his employer. This does not mean he has given up the right to seek redress from an unrelated third party. Consequently, he must be allowed to pursue that same course of action against the carrier of uninsured motorist benefits; despite the fact that the carrier does not represent the interests of the uninsured motorist, it does stand in his shoes as concerns suits by the injured party. See 7 Am.Jur.2d Auto Insurance § 293 et seq. (1980); see also Rhodes v. Auto Ignition Company, 218 Pa.Super. 281, 275 A.2d 846 (1971). For this reason, we reject Liberty Mutual’s argument that since Mr. Boris had no contractual relationship with the insurer, he must settle for suing the motorist directly or nothing at all.

We also observe that the Uninsured Motorist Act is broad in its intentions. It is a reflection of the harsh reality that more and more responsible motorists are injured by careless drivers who wantonly take to the road without obtaining insurance against the harm they might cause. Consequently, every effort is to be made to allow recovery under this Act, so that the injured party can be “made whole” just as if the wreckless motorist had himself obtained no-fault benefits. See Tubner v. State Farm Mutual Auto Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981); Johnson v. Travelers Insurance Co., 343 Pa.Super. 560, 495 A.2d 938 (1985); Gerardi v. Harleysville Insurance Co., 293 Pa.Super. 375, 439 A.2d 160 (1981); Marchese v. Aetna Casualty and Surety Co., 284 Pa.Super. 579, 426 A.2d 646 (1981).

As a matter of public policy, we can find no reason to deny appellants the right to recover for pain and suffering, which is not covered by workmen’s compensation but is recoverable under the Uninsured Motorist Act. Surely, the Workmen’s Compensation Act never intended that the employee be forced into foregoing such recovery. To hold otherwise would be contrary to the voluminous case law demanding broad applicability of the Uninsured Motorist Act.

In sum, we agree with appellants that there is a sound basis for holding the provider of uninsured motorist coverage independently liable. However, we wish to point out that we have taken a slightly different road in arriving at this result. Appellants seek to distinguish the no-fault insurer from the uninsured motorist insurer on the basis that the motor vehicle owner must obtain no-fault insurance, whereas the insurer has an independent legal obligation to provide uninsured motorist coverage. This argument is flawed. While it is true that the Uninsured Motorist Act prohibits an insurer from issuing a policy that does not include uninsured motorist coverage, we see this obligation as secondary: it only arises after the vehicle owner fulfills the primary duty of obtaining no-fault benefits. At no time will an insurer have to provide uninsured motorist coverage separate from a no-fault policy, which the vehicle owner is obligated to obtain.

To conclude on this point, we recognize that two recent opinions from panels of this Court are inconsistent with today’s holding. In Lewis v. School District of Philadel phia, 347 Pa.Super. 32, 500 A.2d 141 (1985), and Vann v. The School District of Philadelphia, 348 Pa.Super. 383, 502 A.2d 260 (1985), the recipient of workmen’s compensation benefits was denied recovery of uninsured motorist benefits. Lewis relied on Turner and Wagner, supra, in precisely the same manner as appellee erroneously did in the case before us. The important distinction between the nature of no-fault and uninsured motorist benefits was overlooked. Vann relied squarely on the Lewis opinion in denying the benefits sought. We are aware that unlike the appellee here, the defendant in Lewis and Vann was a self-insured entity. This, however, is not an important distinction, for the self-insured’s payment into a fund is little different from appellee’s payment of premiums for purposes of our analysis. The self-insured entity pays the plaintiff in a different way, but the nature of the benefits are the same. In each case, the precise issue is whether a workmen’s compensation recovery precludes the receipt of uninsured motorist benefits. Insofar as Lewis and Vann are at odds with our holding today on this point, they are overruled.

We now consider the second substantive issue: whether the arbitration panel acted properly in cumulating or “stacking” the $31,000.00 recoverable under each of Buckley’s trucks to arrive at the $841,569.00 award.. This issue was not passed upon by Judge DiBona, insofar as he vacated the award based solely on the first issue.

In Miller v. Royal Insurance Co., 354 Pa.Super. 20, 510 A.2d 1257 (1986), a three judge panel of this Court recently concluded that uninsured motorist benefits under a corporate fleet policy may not be stacked. In so holding, the panel observed that a contrary finding would make premium costs prohibitive and that such stacking is not within the reasonable expectations of any parties to the insurance agreement. We find this logic compelling and embrace the Miller holding entirely.

Accordingly, the arbitration award is modified to the single vehicle coverage limit of $30,000.00 dollars. We note that the arbitration was conducted pursuant to the 1927 Arbitration Act, 42 Pa.C.S. § 7301. Thus, on appeal we are free to correct any error of law made by the arbitrators in reaching their decision. 42 Pa.C.S. § 7315; see Flamini v. General Accident Fire and Life Assurance Corp., 328 Pa.Super. 406, 477 A.2d 508 (1984).

Additionally, we point out that even absent the Miller decision, supra, appellants would not be entitled to stacked benefits. As an employee, appellant Mr. Boris was not an intended beneficiary of the insurance policy, i.e., he was not a “class one” insured, since that class is limited to “You or any family member”. In our view, “You” refers to the person or entity to whom the policy was issued. We would therefore deny multiple coverage for the reasons set forth in Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), and Flamini, supra.

The order vacating the arbitration award is reversed and the award reinstated. The award is modified to the single vehicle coverage limit of $30,000.00.

McEWEN, J., files a concurring opinion.

McEWEN, Judge,

concurring:

The ruling that uninsured motorist benefits under a corporate fleet policy may not be stacked is so sound as to be beyond dispute and I hasten to join in both the rationale and conclusion upon that issue.

I am now also persuaded that an employee who receives Workmen’s Compensation benefits is not precluded from receiving uninsured motorist benefits under his employer’s policy, a decision which overrules Lewis v. School District of Philadelphia, 347 Pa.Super. 32, 500 A.2d 141 (1985) and Vann v. The School District of Philadelphia, 348 Pa.Super. 383, 502 A.2d 260 (1985). But while angels would fear to express a rationale which varies from one in which all of the other members of this Court en banc have joined, I would rely for that conclusion upon the reasoning set forth in the tersely cogent dissent of our esteemed former President Judge Edmund B. Spaeth, Jr. in Lewis v. School District of Philadelphia, supra, 347 Pa.Super. 32 at 35, 500 A.2d 141 at 143, which, in essence, states:

The exclusivity provision of the Workmen’s Compensation Act is restricted to the “liability of an employer”.
When a carrier provides uninsured motorist coverage to an employer, it is providing coverage not for the liability of the employer but for the liability of someone else who should have had but did not have his own coverage. Thus, uninsured motorist coverage is not coverage for the “liability of an employer”.
Therefore, an employee is not precluded from receiving uninsured motorist benefits under the employer’s policy.

That reasoning is as compelling as it is succinct and, thus it is, that I join in this conclusion of the majority.

      . Appellant, Charles Boris, has already received workmen’s compensation.

      . It appears that appellants may have labelled Liberty Mutual’s defense as one of "immunity" simply to bring it within the scope of Rule 1030. This is unnecessary, for as we held in Sechler v. Ensign-Bick

        ford Co., 322 Pa.Super. 162, 469 A.2d 233 (1983), Rule 1030 applies to all affirmative defenses, not just those explicitly named in the rule.

      . We note that the two cases cited by appellants in this connection, Parsons v. State Farm Mutual Insurance Co., 335 Pa.Super. 394, 484 A.2d 192 (1984), and Aster v. The Jack Aloff Co., 190 Pa.Super. 615, 155 A.2d 627 (1959), have absolutely no relation to the proposition for which they are asserted.

      . In Rhodes, the injured party obtained uninsured motorist benefits after obtaining workmen’s compensation; however, that case does not control the exclusivity of remedy issue, since the uninsured motorist benefits were obtained under the employee’s own auto policy.

      . The 1927 Act was repealed by the JARA Continuation Act of 1980, Act of October 5, 1980, P.L. 693, No. 142 § 501(c). Thus, any reference to the 1927 Act necessarily incorporates the provisions of the 1980 Act. See Patrick v. Cherokee Insurance Co., 354 Pa.Super. 427, 512 A.2d 24 (1986).


author: WICKERSHAM, Judge:

text:
    515 A.2d 27
    COMMONWEALTH of Pennsylvania v. Juan T. RODRIQUEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued April 23, 1986.
    Filed Sept. 17, 1986.

      Paul W. Kilgore, Lebanon, for appellant.
    Before WICKERSHAM, BROSKY and WATKINS, JJ.
   WICKERSHAM, Judge:

Juan T. Rodriquez appeals from the judgment of sentence entered against him by the Court of Common Pleas of Lebanon County following his conviction for a violation of the Controlled Substance, Drug, Device and Cosmetic Act.

The evidence, viewed in the light most favorable to the Commonwealth as verdict-winner, disclosed that on August 10, 1983, appellant sold for $25.00 a packet of methamphetamine to Vicki Schauer, an individual who at the time was cooperating with Lebanon County law enforcement agencies by making the purchase while wearing electronic surveillance equipment. As a result of that sale, appellant was subsequently arrested and charged with one count of delivery of methamphetamine, in violation of section 13(a)(30) of the above act.

Appellant filed an omnibus pretrial motion seeking suppression of evidence, claiming that the sale was intercepted in violation of the Wiretapping and Electronic Surveillance Control Act and the United States and Pennsylvania Constitutions. He also sought to have the information quashed. On May 10, 1984, following a hearing before the Honorable G. Thomas Gates, P.J., appellant’s motion was dismissed. Appellant’s trial by jury on May 14-15, 1984 resulted in a verdict of guilty. Timely post-trial and supplemental post-trial motions were filed and denied. On July 3, 1985, appellant was sentenced to a term of imprisonment of four (4) to eight (8) years, plus payment of a $100.00 fine, costs, and restitution. This appeal timely followed.

Appellant raises nine issues for our consideration:

I. Did the Commonwealth fail to comply with the “Wiretapping and Electronic Surveillance Control Act” as to securing approval of consensual surveillance under section 5704?
II. Was the alleged consent of Vickie [sic] Schauer to participate in the electronic interception of oral communications the product of undue official coercion and inducement in violation of the “Wiretapping and Electronic Surveillance Act”?
III. Was the interception of communications of appellant made in violation of appellant’s rights under [the] fourth amendment to the United States Constitution and article I, section 8 of the Pennsylvania Constitution?
IV. Does use of the content of the interception of communications of appellant violate appellant’s right against self-incrimination afforded by the fifth amendment of the United States Constitution and article I, section 9 of the Pennsylvania Constitution?
V. Should the methamphetamine allegedly sold by appellant be suppressed under the exclusionary rule?
[VI. Was the defendant’s arrest illegal?]
VII. Did the trial court err in allowing the jury to read an alleged transcript of the taped conversation while listening to the tape?
VIII. Did the trial court err by refusing to allow cross examination of the Commonwealth’s chief witness as to [for] whom she would purchase drugs?
IX. Is the verdict contrary to the evidence, the weight of evidence, contrary to law, and/or is the evidence insufficient to sustain the verdict?

Brief for Appellant at 2-3.

After careful review of the record, the briefs of the parties, and the applicable law, we conclude that the opinion of Judge Gates, dated June 5, 1985, correctly and adequately addresses the last three issues and we see no need to discuss them further.

The first six issues all involve attacks on the ruling of the suppression court; these issues were raised in appellant’s omnibus pretrial motion, and were rejected by the suppression court. “The appropriate standard for appellate review of the finding of a suppression court is for the appellate court to consider the evidence of the Commonwealth and so much of the defense evidence as fairly read in context of the record as a whole, remains uncontradicted.” Commonwealth v. Duffy, 355 Pa.Super. 145, 149, 512 A.2d 1253, 1255 (1986).

When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.

Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985), cert. denied, — U.S. —, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). See also Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986).

Appellant’s basic contention is that the Commonwealth failed to comply with the Wiretapping and Electronic Surveillance Control Act [hereinafter “Wiretap Act”], and because of that failure, the contents of any intercepted conversations, all testimony as to what transpired, and the methamphetamine should have been suppressed. Appellant’s first argument is that the Commonwealth failed to comply with section 5704(2)(ii) of the Wiretap Act. Section 5704(2)(ii) provides an exception to the general prohibition against interception of wire or oral communications:

§ 5704. Exceptions to prohibition on interception and disclosure of communications
It shall not be unlawful under this chapter for:
(1) ...
(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:
(i) such officer or person is a party to the communication; or
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.

18 Pa.C.S. § 5704(2). Appellant contends that the district attorney failed to review any facts as to suspected future criminal activity of appellant, as required by section 5704(2)(ii). We are not persuaded by appellant’s contention.

In order for law enforcement officers to use a civilian informant to intercept or record a conversation or transaction, they must secure the approval of the Attorney General or the district attorney, or their designated assistants. Here, that approval was secured. District Attorney Fee-man testified that he received a written request for such approval on July 25, 1983, and gave his approval on August 10, 1983 in the form of a signed written memorandum. Copies of both writings were admitted at the suppression hearing and at trial. The record also indicates that District Attorney Feeman, while reviewing the written request for approval, discussed it in detail with the county detective and the proposed informant.

There is no requirement in consensual cases, that the target be identified or that probable cause to intercept a particular communication exist. Compare 18 Pa.C.S. § 5712(a)(2). All that is required is that the informant acts consensually, that his or her consent is voluntary, and that the informant acts under the direction of an investigative or law enforcement officer to intercept oral communications involving suspected criminal activities. The identity of the target is not required, but we note in this case that in the written request for approval, a Juan C. Rodriquez of Lebanon Village was listed as a target. While appellant’s middle initial was incorrectly listed, he in fact testified at the suppression hearing that he was the only Juan Rodriquez who lived at that address.

Second, appellant contends that the informant’s alleged consent to the interception of conversations between herself and appellant was a product of undue official coercion and inducement, and thus not voluntarily given as required by section 5704(2) of the Wiretap Act. We are not persuaded by appellant’s argument in this regard either.

District Attorney Feeman interviewed the informant specifically to determine if her consent was voluntary. Aware that there was a pending drug charge against the informant in that county, Mr. Feeman quizzed her thoroughly on whether anyone from a local or state law enforcement agency had ever made any promises, threats, or representations to her to induce her cooperation in the instant case. She answered negatively to all such questions. Mr. Feeman told her that her cooperation would be brought to the court’s attention at the time she was sentenced, but the district attorney’s office would make no further promises. The informant also testified that her consent was voluntary, that no one had promised, threatened, or made representations to her, other than the above statement by Mr. Fee-man, concerning her cooperation in the wiretap,

Although her avowed reason for contacting the police department — because she felt there was too much drug trafficking and young children were starting to get involved in it — is somewhat unusual considering her admitted purchases of drugs prior to the instant transaction, we find support in the record for the suppression court’s finding of fact that her consent was voluntary. The demeanor and credibility of witnesses are issues solely for the trier of fact, Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), and our court must defer to the findings of that trier of fact with respect to witness credibility. Kembel v. Schlegel, 329 Pa.Super. 159, 478 A.2d 11 (1984).

Third, appellant contends that the wire interception was a violation of his rights under the fourth amendment to the United States Constitution and article I, section 8 of the Pennsylvania Constitution. He claims that, in order to comply with section 5704(2), the investigating officer must demonstrate to the district attorney that there is probable cause to believe that a particular interception will reveal evidence of a particular crime. In so arguing, he claims that the consensual interception in the instant case is analogous to a warrantless search and seizure. The lower court rejected this analogy, finding that consensual interceptions are not searches and seizures and do not require an initial finding of probable cause to be lawful. Lower ct. op. at 2 n. 2. We agree. Furthermore, as we have noted already, section 5704(2) contains no requirement that probable cause must be shown in a consensual wiretap case.

Appellant appears to argue that, as in Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), law enforcement authorities must seek an order of court upon probable cause before being allowed to use electronic surveillance, even where the use falls under an exception to the strict requirements of the Wiretap Act. While our court held in Beauford that an individual’s expectation of privacy in telephone numbers he calls is protected by article 1, section 8 of the Pennsylvania Constitution against government surveillance and intrusion without probable cause, and thus the use of pen registers and dialed number recorders by law enforcement authorities is limited to those situations in which an order issues upon probable cause, the case involved a non-consensual wiretap. Here we are dealing with a consensual interception; therefore, appellant’s reliance on Beauford is misplaced.

In addition, our court has considered the question of whether a consensual interception under section 5704(2)(ii) constitutes an illegal search and seizure in that law enforcement officials can and did intercept communications without a warrant issued by a neutral and detached judicial officer. In Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985), we held that such an interception does not constitute an illegal search and seizure under either the fourth amendment to the United States Constitution or article 1, section 8 of the Pennsylvania Constitution.

First, it is abundantly clear that the type of wiretap executed here, similar to the one-conversant, consensual tap allowed under federal law, is legal under the United States Constitution. United States v. Caceres, 440 U.S. 741, 744, 99 S.Ct. 1465, 1467, 59 L.Ed.2d 733 (1979) (“Neither the Constitution nor any Act of Congress requires that official approval be secured before conversations are overheard or recorded by Government Agents with the consent of one of the conversants.”); see also United States v. Horton, 601 F.2d 319 (7th Cir.1979); United States v. Shaffer, 520 F.2d 1369 (3d Cir.1975). Thus, to the extent Article I, § 8 incorporates the dictates of the Fourth Amendment, section 5704(2)(ii) is constitutional.
Are there additional guarantees under Article I, § 8, which makes § 5704(2)(ii) constitutionally infirm? Our research has been unable to unearth a Pennsylvania appellate court case which addresses the issue. However, we find instructive a recent federal case wherein the defendant challenged the Wiretap Act under the Pennsylvania Constitution. United States v. Geller, 560 F.Supp. 1309 (E.D.Pa.1983). In Geller as in the instant case the defendant argued that Article I, § 8, went further than the Fourth Amendment guarantees and, in light of this Commonwealth’s jurisprudential history, “ ‘any’ legislation which permits the interception of wire communication is per se violative of Pennsylvania’s Constitution.” Id. at 1315.
$ $ $ >|( $ ‡
While we agree with the Getter court that the Pennsylvania Constitution does not prohibit any and all legislation which permits wiretaps, the question we face here is whether it prohibits this legislation. Previously, this Commonwealth, through legislation known as the “Anti-Wiretap Statute,” banned all consensual wiretaps except where the consent of all the parties to the conversation had been obtained. Commonwealth v. [McCoy], 442 Pa. 234, 238-39, 275 A.2d 28, 30-31 (1971); Commonwealth v. Murray, 423 Pa. 37, 223 A.2d 102 (1966).... [T]he anti-wiretap act was a distinct policy decision by the legislature against allowing one party consensual wiretap. Id., 423 Pa. at 42-43, 223 A.2d at 105. There is no mention or inference that Article I, § 8 is or was more sweeping in its protections than the Fourth Amendment.
Basically, under the then-existing statute, the legislature declined to give “legal responsibility” to law enforcement officers for wiretaps. This prior legislation was a decision, by the legislature, “as a matter of state public policy that the right of any caller to the privacy of his conversation is of greater societal value than the interest served by permitting eavesdropping or wiretapping.” Commonwealth v. [McCoy], supra, 442 Pa. at 239, 275 A.2d at 30. That determination was “within constitutional limits, [and] solely within the discretion of the Legislature.” Id., 442 Pa. at 239, 275 A.2d at 30-31.
Just as clearly, the enactment of § 5704(2)(ii) was within both Constitutional limits and the discretion of the legislature. The General Assembly has given legal responsibility to law enforcement officials to properly conduct wiretaps where one party consents. The function of determining whether or not to permit this type of wiretap was delegated by the Constitution to the General Assembly. Commonwealth v. Baldwin, 282 Pa.Super. 82, 422 A.2d 838 (1980); Commonwealth v. Bennett, 245 Pa.Super. 457, 369 A.2d 493 (1976). In such a situation, we shall not disturb the legislature’s exercise of discretion, especially where the statute does not “clearly, palpably and plainly” violate the Pennsylvania Constitution.

Id., 340 Pa.Superior Ct. at 355-57, 490 A.2d at 457-59 (footnotes omitted). See also United States v. Felton, 753 F.2d 256 (3d Cir.1985); United States v. Mitlo, 714 F.2d 294 (3d Cir.1983), cert. denied, 464 U.S. 1018, 104 S.Ct. 550, 78 L.Ed.2d 724 (1983). Therefore, we find appellant’s search and seizure argument to be meritless.

Nor do we find any merit to appellant’s fourth issue, in which he contends that the intercepted communication was a violation of his right against self-incrimination, protected by the fifth amendment of the United States Constitution and article I, section 9 of the Pennsylvania Constitution. However, he neither explains how this right was violated nor supports his contention with any authority. In any event, it is clear from the record that what was revealed in the intercepted communication was not appellant incriminating himself, but actually committing a crime. Furthermore, he was not under arrest or in custody at the time, and nobody asked him any questions. None of the factors which might give rise to a potential claim of self-incrimination were present in this case.

Appellant’s fifth and sixth issues flow directly from the alleged illegality of the intercepted communications. Appellant claims that the methamphetamine which he sold to the informant should have been suppressed under the “fruit of the poisonous tree” doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). He also claims, for similar reasons, that his arrest was illegal. Because we have found that the electronic interceptions were properly authorized under the Wiretap Act, that the informant’s consent was voluntary, and that there was no violation of appellant’s constitutional rights, these last two arguments are meritless. Since the intercepted drug transaction was legal, there is no question that appellant’s arrest was legal also and without a poisonous tree, there can be no suppression of the fruit on that basis. See, e.g., Commonwealth v. Magwood, 503 Pa.Super. 169, 469 A.2d 115 (1983); Commonwealth v. Davis, 308 Pa.Super. 204, 454 A.2d 92 (1982).

Finding no merit to any of appellant’s claims, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 35 P.S. § 780-101 et seq.

      . 18 Pa.C.S. § 5701 et seq.

      . It appears that appellant inadvertently omitted issue 6 from his "statement of questions involved.” It is clearly listed and addressed by appellant in the body of his argument, however, and is likewise listed and addressed by the Commonwealth in its brief.

      . We note that the Wiretap Act does not require that a written memorandum of approval be executed by the district attorney prior to the commencement of a consensual interception. See 18 Pa.C.S. § 5704(2)(ii). "Surveillance conducted with the consent of a party to the conversation is not subject to the exacting standards of authorization required for non-consensual surveillance under the Wiretap Act.” Commonwealth v. Checca, 341 Pa.Super. 480, 492, 491 A.2d 1358, 1364 (1985).

      . Sometime in the spring of 1983, the informant voluntarily contacted a detective with the Lebanon City Police Department to relay her concern about the amount of drug trafficking going on in the area. In July of 1983, she was arrested for possession of a marijuana plant. In August of 1983, the intercepted transaction between appellant and the informant took place. As of the time of appellant’s trial in May of 1984, she had entered an open plea to the possession charge, but had not yet been sentenced.