author: VAN der VOORT, Judge:

text:
    441 A.2d 412
    Gary L. SAMSEL, Mason L. Samsel and Joanne A. Samsel, His Wife, Appellants, v. The TRAVELERS INDEMNITY COMPANY, Nationwide Mutual Insurance Company, Universal Underwriters Insurance Company, Pennsylvania Assigned Claims Plan and Assigned Claims Bureau.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Feb. 5, 1982.
    Petition for Allowance of Appeal Denied May 6, 1982.

      John Arnold Crisman, Berwick, for appellants.
    Anthony J. Lumbis, Wilkes-Barre, for Traveler’s, Indem. Co., appellee.
    Joseph J. Musto, Wilkes-Barre, for Nationwide, Mut. Ins. Co., appellee.
    William W. Warren, Jr., Scranton, for Pennsylvania Assigned Claims Plan, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

The issues in this case are whether the operator of a motorcycle who was injured in a collision with an automobile covered under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq., is entitled to recover no-fault benefits from the insurer of the automobile; and if not, whether his exclusion from coverage is constitutional.

The appellant, Gary L. Samsel, was the operator of a motorcycle, and Mason L. and Joanne A. Samsel are his parents. The three Samsels have sued to recover no-fault basic loss benefits based on Gary’s injuries. They have named as defendants Nationwide Mutual Insurance Company, which was the insurance carrier for the operator of the automobile involved in the accident; The Travelers Indemnity Company, the insurance carrier for Mason L. Samsel; Universal Underwriters Insurance Company, the issuer of a motorcycle insurance policy for Gary L. Samsel; and Pennsylvania Assigned Claims Plan and Assigned Claims Bureau. The Bureau is in the same position as the other insurance carriers with respect to appellants’ claim. The Assigned Claims Plan was established under Section 108 of the No-Fault Act, 40 P.S. § 1009.108(b), to provide basic loss benefits to victims with claims covered by the Act, but who were unable to collect such benefits from an insurance carrier for any of the reasons set forth in § 108(b). Universal Underwriters Insurance Company could not be located and was not served with process.

The appellees who were served with process have each filed Preliminary Objections to the Complaint in the nature of demurrers. The lower Court has sustained their objections and dismissed the Complaint.

It is the appellants’ position that the operator of the motorcycle was the “victim” of a collision with an automobile covered by the No-Fault Act as defined in Section 201, 40 P.S. § 1009.201(a), and that as a consequence he is entitled to receive basic loss benefits as defined by Section 103, 40 P.S. § 1009.103.

While a motorcycle is a “motor vehicle” within the scope of the No-Fault Act, Section 103, 40 P.S. § 1009.103, thereby making available basic loss benefits to a “victim” of a motorcycle accident other than the operator or passenger of a motorcycle, Singer vs. Sheppard, 464 Pa. 387, 406 n.29, 346 A.2d 897, 907 n.29 (1975), the operator and passenger are not similarly covered because of their specific exclusion by Section 103, 40 P.S. § 1009.103, which reads in part:

“Basic loss benefits” means benefits provided in accordance with this act for the net loss sustained by a victim, subject to any applicable limitations, exclusions, deductibles, waiting periods, disqualifications, or other terms and conditions provided or authorized in accordance with this act. Basic loss benefits do not include benefits for damage to property. Nor do basic loss benefits include benefits for net loss sustained by an operator or passenger of a motorcycle. (Emphasis added.) However, Section 301 of the No-Fault Act reserves to persons thus excluded the right to bring a tort action outside the scope of the No-Fault Act to recover damages. 40 P.S. § 1009.301(a)(6). The appellants have in fact brought such a tort action against the driver of the automobile involved in the collision with the motorcycle.

Neither are the parents of the operator of the motorcycle entitled to recover basic loss benefits because they are not “victims” of the accident as defined in Section 201 of the No-Fault Act. 40 P.S. § 1009.201.

The appellants call our attention to decisions in Michigan and New York which sustain the right of an injured motorcycle operator to recover No-Fault benefits under the No-Fault statutes of those states: Hill v. Aetna Life & Casualty Company, 79 Mich.App. 725, 263 N.W.2d 27 (1977); Montgomery v. Daniels, 38 N.Y.2d 41, 378 N.Y.S.2d 1, 340 N.E.2d 444 (1979). However, these decisions shed no light on the proper construction of the Pennsylvania No-Fault Act, because neither the Michigan nor the New York statute contains any language comparable to the exclusion of an operator or a passenger of a motorcycle from “basic loss benefits” as defined in Section 103 of the Pennsylvania Act.

We conclude that neither Gary L. Samsel or his parents herein, have any basis for recovery of basic loss benefits under the No-Fault Act.

The constitutionality of the Pennsylvania No-Fault Act was comprehensively reviewed and sustained under both Federal and State Constitutions in Singer. In that opinion, the Court sustained the right of the legislature to make the Act applicable to certain motor accidents and not to others and considered specifically the constitutionality of excluding the operator or passenger of a motorcycle and remitting such persons to a tort action outside the Act for recovery of his damages. It pointed out the reasonableness of such an exclusion because of the greater risk of serious injury to an operator or a passenger of a motorcycle and the resulting increase in No-Fault insurance premiums if such persons were to be included. The Court also sustained the constitutional right of the legislature to deal with the problem of compensation for highway vehicle accidents one step at a time, starting with the lesser accidents and reserving the more serious ones, including those to the operator or passenger of a motorcycle, for another day. Singer, 464 Pa. at 406-07, 346 A.2d 897.

The appellants seek to escape the ruling in Singer by the contention that, while the No-Fault Act is constitutional, its application in this case becomes unconstitutional as a denial of the equal protection of the law if it is construed in such a way as to exclude the operator of a motorcycle from coverage. However, that is exactly the constitutional issue that the Court considered and ruled upon in Singer. 464 Pa. at 406, 346 A.2d 897.

The No-Fault Act being constitutional and having specifically excluded the operator of a motorcycle from the recovery of basic loss benefits, the lower Court was correct in dismissing the Complaint.

Affirmed.


source: Caselaw Access Project

author: STRANAHAN, Judge:

license: Public Domain

text:
    441 A.2d 414
    COMMONWEALTH of Pennsylvania v. John C. MINOSKE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1979.
    Filed Feb. 5, 1982.

      Jonathan DeYoung, King of Prussia, for appellant.
    Colin Hannings, Assistant District Attorney, Lansdale, for Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       Pres. Judge John Q. Stranahan of the Court of Common Pleas of Mercer County, Pennsylvania is sitting by designation.
      Judge Leonard Sugerman of the Court of Common Pleas of Chester County, Pennsylvania is sitting by designation.

   STRANAHAN, Judge:

This matter is on appeal from the Judgment of Sentence imposed on the appellant, John C. Minoske, by the Court of Common Pleas of Montgomery County following the appellant’s conviction for possession of a controlled substance, (marijuana), and possession of a controlled substance, (marijuana), with intent to deliver. We remand for further considerations by the lower court.

At the appellant’s trial, the following evidence was introduced: On August 19, 1977, Trooper Walter T. Zdunowski of The Pennsylvania State Police Force obtained a search warrant for the second story apartment at 205 Forrest Avenue in West Norriton Township, Montgomery Co., Penna. A search of that apartment was conducted the same day.

The apartment had a kitchen, den, bathroom, living room and two bedrooms. In the first bedroom, the following items were found: various articles of men’s clothing, a fake marijuana permit issued in the name of the appellant, a vehicle registration card in the appellant’s name, an attache case containing several packets of marijuana and, in the closet, two paper bags containing several packets of marijuana and a box of plastic baggies. The combined weight of the marijuana found in this bedroom was approximately six pounds. In the other bedroom, Trooper Zdunowski found a triple beam balance scale and a check stub bearing the name of Wayne Roberts.

After the appellant’s arrest, he told Trooper Zdunowski that he knew the marijuana was in the apartment and that it had been supplied by a man named Lavinski. The appellant did not admit, however, that the marijuana was his.

At trial, the appellant testified that the clothing and personal effects found in the bedroom containing the marijuana were his. The appellant also testified that he and Mr. Roberts shared the apartment with two women, Robin McNeil and Carin Honeychuck. The two witnesses called by the appellant at his trial both testified that Ms. McNeil and Ms. Honeychuck were residing at the apartment at the time the search took place.

During the search of the apartment, however, no women’s clothing was found.

The appellant has raised six issues. Those issues are as follows:

I. The appellant contends that the evidence was insufficient to sustain the verdict in that the Commonwealth failed to prove that the appellant had constructive possession of the marijuana;

II. The appellant contends that the search warrant was defective in that the affiant, Trooper Zdunowski, made a knowing misstatement of a material fact when he obtained the warrant. Hence, the appellant argues, the lower court erred in failing to suppress the evidence obtained as a result of the search of the appellant’s apartment;

III. The appellant contends that the judge presiding over the hearing on his motion to suppress was prejudiced against him when the Commonwealth brought to the judge’s attention that there were other charges pending against the appellant. Hence, the appellant argues, the judge erred in refusing to disqualify himself;

IV. The appellant contends that the trial court judge was prejudiced against him because the judge had presided at a suppression hearing involving the alleged supplier of the marijuana, Mr. Lavinski. Hence, the appellant argues, the trial court judge erred in refusing to disqualify himself;

V. The appellant contends that the lower court erred in instructing the jury that “possession of a controlled substance is unlawful except in certain situations and that the burden of showing an exceptional situation is on the defendant”; and

VI. The appellant contends that the Commonwealth failed to exercise due diligence in attempting to bring him to trial within 180 days after the written complaint was filed as required by Pa.R.Crim.P. 1100. Hence, the appellant argues, the lower court erred in granting the Commonwealth’s petition for an extension of time.

I. SUFFICIENCY OF THE EVIDENCE

The appellant contends that the evidence was insufficient to sustain the verdict. This contention is based on the fact that the appellant did not have actual possession of the marijuana. To be convicted of possession and possession with intent to deliver, therefore, the Commonwealth had to prove beyond a reasonable doubt that the appellant had constructive possession of the marijuana. Commonwealth v. Chenet, 237 Pa.Super. 226, 352 A.2d 502 (1976); reversed on other grounds, 473 Pa. 181, 373 A.2d 1107 (1977). “To prove constructive possession, the Commonwealth is required to demonstrate that the accused had the power to control the contraband and the intent to exercise that power.” Commonwealth v. Jones, 250 Pa.Super. 236, 239, 378 A.2d 914, 915 (1977). The appellant asserts that the evidence presented at trial failed to establish that the room in which the contraband was found was the appellant’s bedroom or that it was under his exclusive possession or control. Hence, the appellant argues, the evidence was insufficient to prove that he had constructive possession of the marijuana.

“The test of sufficiency of the evidence—irrespective of whether it is direct or circumstantial, or both—is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.” Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580, 584 (1969).

Applying that test, it is the opinion of this Court that there was sufficient evidence for a jury to find beyond a reasonable doubt, that the bedroom in which the contraband was found was the appellant’s bedroom. The appellant was living in the apartment at the time the search took place. The clothes found in the bedroom were the appellant’s. The personal effects found in the bedroom bore the appellant’s name. Given those facts, the only logical explanation is that the bedroom in question was the appellant’s. Simply, why would the appellant have his clothing and personal effects in that bedroom if it was not his bedroom?

Where contraband is found among an appellant’s personal effects, in a place normally accessible only to the appellant, then a jury can properly infer that the appellant had both the power and intent to control the contraband and, therefore, that the appellant had constructive possession of the contraband. Commonwealth v. Jones, supra.

In the case at hand, the bulk of the marijuana was found inside two paper bags in a cardboard box on the floor of the appellant’s bedroom closet.

A bedroom closet is not an area of a dwelling that is generally accessible to all residents of or visitors to the dwelling such as a living room or kitchen would be. A bedroom closet is normally accessible only to the person or persons in whose bedroom the closet is located. In this case, the closet in question was located in the appellant’s bedroom.

There is nothing in the record to indicate that the appellant shared this bedroom with anyone else. In the other bedroom, personal effects of Mr. Roberts were found. That would indicate that it was his bedroom and, therefore, that he did not share the bedroom in which the marijuana was found with the appellant. Also, no women’s clothing or personal effects were found in the appellant’s bedroom. Hence, there is no evidence that would indicate that either Ms. McNeil or Ms. Honeychuck shared the bedroom in question with the appellant.

This Court finds, therefore, that the marijuana was found among the appellant’s personal effects and in a place normally accessible only to the appellant. Hence, the evidence was sufficient to prove that the appellant had constructive possession of the marijuana. Commonwealth v. Jones, supra. As a result, this Court finds that there is sufficient evidence to sustain the verdict.

II. VALIDITY OF THE SEARCH WARRANT

The appellant contends that the search warrant was defective. This contention is based on the appellant’s assertion that Trooper Zdunowski made a knowing misstatement of a material fact in the affidavit he used to obtain the search warrant.

The portion of the affidavit that the appellant asserts contains a material misstatement of fact reads as follows: “The informant providing this information has proven reliable in the past and he has provided information that has resulted in three arrests for narcotics violation, all three resulting in convictions in the Montgomery County Court.”

At the suppression hearing in this matter, Trooper Zdunowski testified that the role of the informant in two of the arrests was providing the initial information that started the investigations of the individuals in question. That information was that the individuals in question were selling narcotics. The arrests were made after Trooper Zdunowski made a direct buy of narcotics from the individuals in question. The informant’s role in the other arrest was providing the information necessary to obtain a search warrant. The arrest in that instance was made on the basis of the evidence seized during the search.

The appellant contends that Trooper Zdunowski’s statement in the search warrant affidavit that the informant “has provided information that has resulted in three arrests” was a misstatement of a material fact since two of the arrests were the result of a direct buy of narcotics by Trooper Zdunowski and not the result of information supplied by the informant.

Where a police officer makes a knowing misstatement of a material fact in a search warrant, the warrant is invalid and any evidence obtained pursuant to that warrant is inadmissible. Commonwealth v. D’Angelo, 437 Pa. 331, 263 A.2d 441 (1970). “A material fact is one without which probable cause to search would not exist.” Commonwealth v. Tucker, 252 Pa.Super. 594, 599, 384 A.2d 938, 941 (1978).

Applying that test, this Court finds that the alleged misstatement by Trooper Zdunowski, assuming that it was a misstatement of fact, was not a misstatement of a material fact.

The search warrant in this matter was issued on the basis of hearsay evidence. In such a situation, the search warrant affidavit must set forth “some of the underlying circumstances from which the officer concluded that the informant was ‘credible’ or his information ‘reliable’.” Aguilar v. Texas, 378 U.S. 108, 114-115, 84 S.Ct. 1509, 1513-14, 12 L.Ed.2d 723 (1964).

In the case at hand, the underlying circumstances were, in part, based on the fact that the informant had provided reliable information in the past and that information resulted in three arrests.

Where the underlying circumstances are based on the fact that the informant had provided reliable information in the past and that information had resulted in arrests, for purposes of determining whether or not probable cause existed for issuing the warrant, “ ‘[t]he essential fact is that the informant gave prior information implicating other persons in criminal activity, which information proved to be correct’.” Commonwealth v. Chatman, 275 Pa.Super. 5, 9, 418 A.2d 582, 585 (1980). The fact the information led to an arrest, by itself, is not essential for a determination of whether or not probable cause existed. Commonwealth v. Chatman, supra.

The statement that the informant had provided information that had resulted in three arrests, therefore, does not contain a material fact. Commonwealth v. Tucker, supra. Hence, while the search warrant affidavit may have contained a misstatement of fact, it did not contain a misstatement of a material fact. The Court finds, therefore, that the search warrant was valid.

III. RECUSAL OF THE SUPPRESSION COURT JUDGE

The appellant contends that Judge Robert Honeyman, who presided over the appellant’s suppression hearing, erred in refusing to immediately disqualify himself when the Commonwealth brought to the judge’s attention the fact that there were other charges pending against the appellant. This contention is based on the appellant’s assertion that Judge Honeyman was prejudiced against him by that information.

This Court, however, will not even consider this issue. The Commonwealth made no statement to Judge Honeyman during the suppression hearing that there were other charges pending against the appellant. The specific statement that the appellant objects to is as follows: “There is another file in this case on this individual.” There is nothing in that statement that would even remotely suggest that there were other charges pending against the appellant.

This Court, finds, therefore, that Judge Honeyman did not err in refusing to disqualify himself on the basis set forth by the appellant.

IV. RECUSAL OF THE TRIAL COURT JUDGE

The appellant contends that Judge Joseph H. Stanziani, who presided over the appellant’s trial, erred in refusing to disqualify himself. This contention is based on the fact that Judge Stanziani had presided over and disqualified himself from a suppression hearing involving Mr. Lavinsky, the individual who allegedly supplied the appellant with the marijuana. As a result of presiding over that hearing, the appellant asserts, Judge Stanziani was prejudiced against him. In support of this contention, the appellant has listed several errors Judge Stanziani allegedly committed during the appellant’s trial.

“(A) decision by a judge against whom a plea of prejudice is made will not be disturbed except for an abuse of discretion.” Commonwealth v. Kane, 199 Pa.Super. 89, 91, 184 A.2d 405, 406 (1962).

It is the opinion of this Court that Judge Stanziani did not abuse his discretion when he refused to disqualify himself. Mr. Lavinsky was not a co-defendant of the appellant’s. The appellant’s case and Mr. Lavinsky’s case arose out of two totally different sets of facts. There is no evidence that the appellant’s name was even mentioned during Mr. Lavinsky’s suppression hearing. Hence, there was no way Judge Stanziani could have been prejudiced against the appellant by presiding over Mr. Lavinsky’s preliminary hearing.

The fact that Judge Stanziani may have committed on errors during the appellant’s trial is not proof that Judge Stanziani was prejudiced against the appellant. If the appellant thought that Judge Stanziani had committed any errors, he should have asked this court to review those errors rather than citing them as examples of prejudice.

This Court finds, therefore, that Judge Stanziani did not err in refusing to disqualify himself.

V. JURY INSTRUCTION

The appellant contends that the lower court erred in instructing the jury that “possession of a controlled substance is unlawful except in certain situations and that the burden of showing an exceptional situation is on the defendant.” This contention is based on the appellant’s assertion that the Commonwealth has the burden of proving that an accused was not licensed to possess a controlled substance. The appellant bases this assertion on the case of Commonwealth v. Sojourner, 268 Pa.Super. 472, 408 A.2d 1100 (1979).

The appellant’s contention is without merit. On reargument, Commonwealth v. Sojourner, 268 Pa.Super. 472, 408 A.2d 1100 (1979) was reversed. Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979). The Commonwealth has the burden of proving non-licensure in cases involving The Controlled Substance, Drug, Device and Cosmetic Act only when the accused comes forward with some credible evidence that he is licensed to possess the controlled substance. Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979).

In the case at hand, the appellant produced no credible evidence that he was licensed to possess marijuana. Hence the lower court did not err in instructing the jury as it did.

VI. RULE 1100

The criminal complaint in this matter was filed on August 19, 1977. Hence, the appellant’s trial was to commence on or before February 15, 1978. Pa.R.Crim.P. 1100. On February 15, 1978, the Commonwealth filed a petition for an extension of time. The lower court granted the Commonwealth’s petition. The appellant’s trial began on February 28, 1978.

The appellant contends that the lower court erred in granting the Commonwealth’s petition for an extension of time. This contention is based on the appellant’s assertion that the Commonwealth failed to exercise due diligence in bringing the appellant to trial.

The Court will not consider that issue at this time. While on bail, the appellant failed to appear for arraignment on October 7,1977. The appellant turned himself in on October 24, 1977.

“(A) defendant on bail who fails to appear at a court proceeding,9of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself. In such a case, the Commonwealth is entitled to an exclusion of this period under section (d)(1) [Pa.R.Crim.P. 1100] without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence.” Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978).

In the case at hand, therefore, 17 days would be excludible from the 180 day period if the appellant was properly notified of his arraignment date without the Commonwealth having to show that they exercised due diligence in attempting to apprehend the appellant. If those 17 days are excluded, then the appellant was brought to trial within 180 days after the complaint was filed as required by Pa.R.Crim.P. 1100.

The Court, therefore, remands this case to the lower court for the purpose of holding an evidentiary hearing to determine if appellant was properly notified of his arraignment date. See Commonwealth v. Snyder, 280 Pa.Super. 127, 421 A.2d 438 (1980). If the appellant was properly notified, then there was no violation of Pa.R.Crim.P. 1100. If the appellant was not properly notified, then this Court will consider the issue of whether or not the Commonwealth exercised due diligence in this matter.

SPAETH, J., concurred in the result.

      . 35 P.S. Sec. 780-113(a)(16).

      . 35 P.S. Sec. 780-113(a)(30).

      . Suppression hearing transcript, p. 38.


author: PER CURIAM:

text:
    441 A.2d 421
    COMMONWEALTH of Pennsylvania v. Paul STRAFF, Appellant.
    Superior Court of Pennsylvania.
    Argued Dee. 5, 1979.
    Filed Feb. 5, 1982.

      Alan E. Kear, Philadelphia, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before PRICE, WATKINS and HOFFMAN, JJ.
   PER CURIAM:

The instant appeal is from the trial court’s order quashing appellant’s timely motions for a new trial and in arrest of judgment following his conviction for speeding. For the reasons stated herein, we reverse the order and remand the case to the court of common pleas for consideration of the merits of appellant’s post-trial motions. Additionally, we vacate the sentence imposed upon completion of appellant’s trial on October 25, 1978.

Appellant was cited for speeding on July 5, 1978. Following a summary trial before a district justice on July 21, 1978, appellant was found guilty and sentenced to pay a fine of $55 and costs of $15. An appeal to the court of common pleas was perfected, see Pa.R.Crim.P. 67, and a nonjury trial was held on October 25, 1978. The trial judge found appellant guilty of violating section 3362(a)(1) of the Vehicle Code and immediately sentenced him to pay the fine of $55 as well as the costs of prosecution. Thereafter, on November 3, 1978, appellant filed motions for a new trial and in arrest of judgment pursuant to Pa.R.Crim.P. 1123(a). The trial court acknowledged receipt of said motions on November 21, 1978 and scheduled argument thereon for December 18, 1978. Following argument, the court below quashed appellant’s motions on December 21, 1978. This appeal followed.

The trial court reasoned that the judgment of sentence entered immediately upon completion of appellant’s trial was the final order from which appellant should have appealed to this court. The trial court thus quashed appellant’s post-verdict motions because there was

no statutory or other authority for the filing of ‘a motion in arrest of judgment and for a new trial,’ after the entry of a sentence or final order of. . .Court. The Pa.Rules of Criminal Procedure in Chapter 1100. . . relate to court cases, i.e. misdemeanors, felonies or murder cases, not to cases under the Vehicle Code.

Slip op. at 2.

This was error. It is clear that Pa.R.Crim.P. 1123 applies to cases involving summary offenses. Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). Indeed, the official Comment to Rule 1123 was recently revised to clarify the applicability of the Rule in the summary case context. The final sentence of the revised comment now provides: “This rule is intended to require post-verdict motions in the court of common pleas after a finding of guilt at a de novo trial in a summary case.” The trial court thus erred in failing to consider the merits of appellant’s post-trial motions.

Accordingly, the judgment of sentence is vacated, the order quashing appellant’s post-verdict motions is reversed, and the case is remanded to the court of common pleas for consideration of the merits of those motions.

      . The Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81, § 3362, 75 Pa.C.S.A. § 3362.

      . Pa.R.Crim.P. 1123(a) provides:

        Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pre-trial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions may be argued. If the grounds asserted do not require a transcript, neither the filing nor argument of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.

      . It is axiomatic that post-verdict motions must be disposed of before sentencing. Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1975); Commonwealth v. Souder, 376 Pa. 78, 101 A.2d 693 (1954);
        Commonwealth v. Middleton, 242 Pa.Superior Ct. 421, 364 A.2d 342 (1976); Commonwealth v. Young, 223 Pa.Superior Ct. 447, 302 A.2d 402 (1973); Commonwealth v. Haimbach, 151 Pa.Superior Ct. 581, 30 A.2d 653 (1943). Thus, it was also error for the court below to impose sentence immediately upon completion of trial and prior to the filing of post-verdict motions. See Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981).


text:
    441 A.2d 422
    NAUS & NEWLYN, INC., v. Andrew M. MASON and Andrew M. Mason Associates, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed Feb. 5, 1982.

      Neil G. Epstein, Philadelphia, for appellants.
    W. Richard Gentry, West Chester, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   PER CURIAM:

Appellee Naus & Newlyn, Inc. (hereafter referred to as “N & N”) is a management consulting firm, specializing in the field of cost reduction for business. Appellant Mason, a management consultant entered into discussions with N & N concerning possible employment with it. Mason accepted employment with N & N and signed an employment agreement dated one week after he commenced such employment. The employment contract contained a provision prohibiting Mason, after leaving N & N, from using “confidential information” and barring him from competing with N & N, for one year, in New York, New Jersey or Pennsylvania. Mason also was prohibited from soliciting or taking employment with N & N’s clients, past or present.

Mason worked his way up the corporate ladder of N & N and eventually became president of the company. A Share Purchase Agreement was executed by Naus, founder of the company, who held all outstanding capital stock of the corporation; Mason purchased 4,000 shares of non-voting stock. The agreement restricted the transfer of the stock. The corporation subsequently elected to be taxed as a small business corporation; and recapitalized its structure for such purpose. Mason received 4,000 shares of common stock in exchange for his non-voting stock. The new stock certificate did not indicate that transfer of the stock was restricted.

Mason was terminated for reasons not pertinent to this appeal; he refused a redemption of his stock. Mason subsequently started his own management consulting firm, Mason Associates, Inc. (hereafter referred to as Associates) and hired several N & N employees. Mason contacted a number of companies which had been or were current clients of N & N. N & N filed a complaint in equity seeking to enjoin Mason and Associates from continuing correspondence with N & N’s customers. The originally scheduled hearing was postponed at appellant’s request. The parties entered into an Interim Order continuing the hearing and providing that appellants would be enjoined and restrained from contacting N & N’s customers until the rescheduled hearing. After several days of testimony in an Order dated November 20, 1978, the court preliminarily enjoined and restrained appellants from submitting a bid to the Minnesota State Hospital System. N & N was required to post a bond as security. In a subsequent order of December 20, 1978, without further testimony, the court enjoined appellants from: soliciting the business of any of N & N’s past or present customers until July 25, 1979; from disclosing or using, until that time, any confidential information or trade secrets acquired during Mason’s or the Associates’ employees tenure with N & N; and conveying, selling, encumbering or transferring N & N stock held by Mason. The court continued the bond. In a Supplemental Order, dated December 26, 1978, the court defined the term “customer”.

Mason and Associates have appealed from these various orders. Appellants raise five issues. Due to our disposition of appellants’ first contention, we need not address the remaining issues.

Appellants’ first argument goes to the nature of the proceedings. They complain that the court in making definitive findings of fact and legal conclusions transformed what was supposed to be a preliminary injunction proceeding into a final hearing on the merits. Appellants contend, that believing the hearing was of a preliminary nature they did not object to the lack of time to prepare their case thoroughly. They assumed the hearing was to preserve the status quo and that there would be adequate time for discovery before the hearing on the final order.

“It [is] improper for the trial judge to treat the hearing on an application for a preliminary injunction as a final hearing on the merits and as a basis for final decree unless so stipulated by the parties: Northvue Water Company, Incorporated v. Municipal Water and Sewer Authority of Center Township, Butler County, 7 Pa.Commonwealth Ct. 141, 145, 298 A.2d 677, 679 (1972).” Raw v. Lehnert, 238 Pa.Superior Ct. 324, 327 n.1, 357 A.2d 574, 575 n.1 (1976).

During the third day of the hearing the court inquired of the parties whether they would agree to proceed with the hearing as if it was for a permanent injunction. Counsel for N & N indicated that the question of damages still remained to be resolved in a “full-blown hearing”. Appellants’ counsel, while agreeing that a re-hearing on many of the same issues would be a waste of resources and time, expressed concern that “there are very substantive rights involved”. Counsel indicated he wished to discuss the matter with his client Mason and then with opposing counsel. (N.T. 307-309). There is no further discussion on the record of converting the hearing into a proceeding for a permanent injunction.

First, we must determine whether the lower court’s decree was in the nature of a preliminary injunction or a permanent injunction. The label attached by the trial court, to the proceedings and the relief resulting therefrom, is not controlling in determining whether the proceedings were for a preliminary injunction or a permanent injunction. See Walker v. O’Bannon, 487 F.Supp. 1151 (W.D.Pa.1980), affirmed 624 F.2d 1092 (3rd Cir.) (1980). The purpose behind the issuance of a temporary injunction is to preserve the status quo as it exists or previously existed before the acts complained of, preventing irreparable injury or gross injustice which requires instant injunctive relief. Slott v. Plastic Fabricators, Inc., 402 Pa. 433, 167 A.2d 306 (1961); North Penn Gas Co. v. Mahosky, 250 Pa. Superior Ct. 366, 378 A.2d 980 (1977). Reviewing the order of the lower court, we find that its order went beyond merely preserving the status quo to the point where the relief granted was the final relief.

The injunction against conveyance or encumbering N & N stock “until the further order of this Court,” is in the spirit of a temporary injunction as it is a stop-gap measure designed to allow for further detailed proceedings. In contrast, the enjoining of solicitation and disclosure of any confidential information or trade secrets until July 25, 1979 is not an interim measure in the current circumstances. By its order of December 20, 1978, in conjunction with the consent interim order of October 20, 1978, and Mason’s termination on July 25, 1978, the court acknowledged the validity of the restrictive covenants contained in the parties’ employment contract. Such a ruling vitiated the need for a final decree on the merits; interfering with various opportunities available to both parties (such as appellants’ claim pertaining to discovery). See Northvue W. Co. v. Mun. W. & S.A. of Cent. T., 7 Pa.Commonwealth Ct. 141, 298 A.2d 677 (1972).

It is improper to treat the hearing on the application for a preliminary injunction as a final hearing on the merits and as the basis for a final decree, even though counsel do not contemplate the taking of further testimony in the case, unless the parties stipulate that it may be so treated. Thus, it has been held to be premature upon a motion for a preliminary injunction, where no replication has been filed and the case has not been set down for hearing upon the pleadings and answer, to decide the case upon the pleadings, answer, and injunction affidavits as if on final hearing and to grant the permanent relief asked for in the pleadings if the facts are in dispute. 8 Standard Pennsylvania Practice, Chapter 36 § 106 (footnotes deleted).

Without reviewing the merits of the relief granted, we find that the lower court exceeded its authority in granting such relief. We vacate the orders of the lower court and remand the record for proceedings not inconsistent with this opinion.

       The only relief denied N & N was a final determination concerning the stock and an assessment of damages, however this absence does not convert a permanent injunction into a temporary one.


text:
    441 A.2d 425
    COMMONWEALTH of Pennsylvania v. David W. GATES, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1981.
    Filed Feb. 5, 1982.
    Samuel K. Gates, York, for appellant.
    Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.
    Robert C. Bell, Assistant Attorney General, Harrisburg, for Pennsylvania Dept, of Transp., appellee.

      Before PRICE, JOHNSON and SHERTZ, JJ.
   PER CURIAM:

On August 6, 1980, appellant, David Gates, was convicted of driving without a valid Pennsylvania driver’s license. He appealed directly to this court, contending that provision 1501 of the Motor Vehicle Code was unconstitutional and that the evidence was not sufficient to support the conviction. For the following reasons we vacate the judgment of sentence and remand to permit the filing of post verdict motions nunc pro tunc.

At approximately 2:45 p. m. on April 6, 1980, appellant was driving a Ford coupe in North Codorus Township, York County. Officer Henry Doll observed appellant commit a moving traffic violation and stopped his vehicle. The automobile’s registration card listed appellant’s name and a York County address. Appellant’s driver’s license was a Florida license, which listed a Florida address as appellant’s residence. When asked about the discrepancy appellant responded that he had resided in Pennsylvania for several months, but that he did not have a Pennsylvania driver’s license. Appellant was charged with driving without a valid Pennsylvania driver’s license. Following a trial on August 6, 1980, appellant was found guilty and sentenced to a fine of $200 and to pay the costs of prosecution.

A defendant has ten days after a conviction of guilty in which to file post verdict motions. Pa.R.Crim.P. 1123. Any issue not raised by post verdict motion is deemed waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). In Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981), we held that the rule requiring post verdict motions is applicable to summary convictions. Appellant’s appeal, therefore, generally would be barred by his failure to file post verdict motions. The record establishes, however, that the trial judge failed to inform appellant (1) of his right to file post verdict motions; (2) the time within which he could file such motions; and (3) the consequences of his failure to file post verdict motions. Thus, since the trial court failed to inform appellant of his right to file post verdict motions, and because appellant filed his appeal prior to our holding in Koch, we remand for the filing of post verdict motions.

The judgment of sentence is vacated and the case remanded for the filing of post verdict motions nunc pro tunc.

SHERTZ, J., did not participate in the consideration or decision of this case.

      . 75 Pa.C.S.A. 1501(a).

      . Contrary to the explicit mandate of Pa.R.A.P. 2111(a)(6), counsel for appellant has failed to include in his brief an argument for appellant. If this substantial defect is not remedied this case may be quashed on subsequent appeal. Pa.R.A.P. 2101.


author: HESTER, Judge:

text:
    441 A.2d 426
    Ella I. RANKIN, Administratrix of the Estate of Bruce Clark Rankin, a/k/a Bruce C. Rankin, a/k/a B. C. Rankin, Deceased, v. William L. FISCHER and T. H. Compton, Inc. v. EVERETT TRUCKING INC., Appellant. Ella I. RANKIN, Administratrix of the Estate of Bruce Clark Rankin v. William L. FISCHER and T. H. Compton, Inc., Appellant, v. EVERETT TRUCKING COMPANY. Appeal of T. H. COMPTON, INC.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed Feb. 5, 1982.

      C. S. Fossee, Pittsburgh, for Everett, appellant.
    James A. Beinkemper, Pittsburgh, for Compton, appellant.
    B. Ernest Long, Greensburg, for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   HESTER, Judge:

A Petition for Declaratory Judgment was filed in the lower court to determine the relative liabilities of the three defendants for payment to the plaintiff of an agreed upon sum of money. The plaintiff is the administratrix of the Estate of Bruce C. Rankin. Rankin was killed when his automobile collided with a tractor-trailer in Westmoreland County on April 25, 1973. The plaintiff filed suit against William L. Fischer (hereinafter “Fischer”), the owner and operator of the tractor-trailer unit and T. H. Compton, Inc. (hereinafter “Compton”), the lessee of the unit under a permanent year-to-year lease. Everett Trucking, Inc. (hereinafter “Everett”), was later joined as an additional defendant.

The suit was settled prior to trial. The insurance company for Compton paid 50% of the settlement figure and the insurance company for Everett paid the balance, pending a determination by the lower court of the relative actual liability of each appellant. The lower court found both Compton and Everett liable for 50% of the damages. Compton and Everett filed this appeal of the lower court decision.

On April 25, 1973, the date of the accident, Fischer and Compton were engaged in a permanent year-to-year lease for the hauling of sand from Berkeley Springs, West Virginia to Washington, Pennsylvania. Compton had the ICC rights to haul sand between Berkeley Springs and Washington. If no load was available for hauling on the trip back to Berkeley Springs, Fischer could haul for another motor carrier, providing he acquired Compton’s permission beforehand. On thirty separate occasions during 1972 and 1973, Compton’s drivers acquired Compton’s permission to trip lease loads of coal for Everett. Everett had a lease with H. W. Brown Coal Company (hereinafter “Brown”), for the purpose of hauling coal from Whitney, Pennsylvania to Lime Kiln, Maryland. When Everett did not have enough tractor-trailer units and drivers to satisfy Brown’s demands, they would enter into trip leases with other trucking companies or individual tractor-trailer owners for the transport of Brown’s coal.

On the day of the accident, Fischer had completed a haul of sand for Compton from West Virginia to Pennsylvania. Compton had no load available for Fischer’s return trip, so Fischer acquired Compton’s permission to haul a load of coal for Everett. At the time of the accident, Fischer was driving his unit to Whitney, Pennsylvania to pick up the load of coal. When Fischer and other Compton drivers hauled coal for Everett under these conditions, payment was made by Brown to Everett, then by Everett to Compton, then to Fischer after Compton deducted a 5% fee.

The written briefs and oral arguments presented by the appellants, Compton and Everett, form two issues to be decided by this Court. The first is whether Everett’s ignorance of the fact that Fischer was driving to Whitney, Pennsylvania to pick up a load of coal from Brown at the time of the accident, releases Everett from any responsibility for Fischer’s negligence. In Rosu v. Law, et al, 193 F.2d 894 (1952), Law, the owner operator of the tractor-trailer unit, was engaged in a lease with Blue Star Foods, Inc., for the hauling of frozen eggs to Sunbury, Pennsylvania and New York. In addition, Law agreed to locate merchandise for the return trip and Blue Star was to receive all compensation for such return haul. On one particular occasion, Law contacted Liberty in Philadelphia after delivering the eggs for Blue Star. He made arrangements to haul goods for Liberty from Wilmington, Delaware to Kansas City, Missouri. Law picked up the lease and other documents from Liberty’s office in preparation for an early start the next morning. While leaving Liberty’s office in his tractor, Law collided with the decendent’s car. Both Blue Star and Liberty were found liable since Long was driving under the authority of both.

Everett argues that Rosu, supra, is not applicable here. Law had spoken with Liberty about the particular haul to Kansas City. He had secured a written lease. We agree with Everett that Liberty was fully cognizant of the arrangements for that specific job. Everett, on the other hand, knew nothing of Fischer’s journey to Whitney, Pennsylvania on April 25, 1973. No documents were prepared and no words were spoken. Everett contends that this undisputed factual distinction renders Rosu, supra, inapposite to the legal dispute here.

We are not predisposed to follow Everett’s contention. The course of dealing between both appellants here, demonstrated that Everett was permitted to use Compton’s drivers under trip leases whenever Compton had no return trip scheduled. Trip leases of this sort were arranged for Compton’s drivers on 30 separate occasions during 1972 and 1973. Although Everett was unaware of the particular haul in question, they were certainly aware that hauls had and would continue to become available for Compton’s drivers. The course of dealing was such that Everett was not always aware of each haul until after completion; but, Everett approved of each haul and received financial benefit from each haul.

The second and final issue is whether the “exclusive possession” requirement found in 49 U.S.C. Section 304, infra, and its corresponding regulations at 49 C.F.R., Section 1057, infra, precludes a finding of joint liability of two motor carriers for a single negligent act committed by one tractor-trailer operator. Everett argues that the permanent year-to-year lease agreement between Compton and Fischer put Compton in a position of “exclusive possession, control and use” of Fischer’s unit and, thereby, necessitates a finding that only Compton can be held liable for Fischer’s negligent acts while the lease is operative. An authorized carrier may only transport goods by equipment that it does not own by, inter alia, operating under a written lease granting it the right to use the equipment. The written lease must provide that “the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease.” 49 U.S.C., Section 304 (1935); 49 C.F.R., Section 1057 (1980). Everett did not enter into a written lease with either Fischer or Compton for the hauling of Brown’s coal.

Compton, of course, takes the opposite position. Compton argues that they had no authority to transport material between Washington and Whitney, Pennsylvania. At the time of the accident, Fischer was travelling that route; he was not operating within the provisions of the written lease executed with Compton. Compton contends that Fischer was en route to Whitney according to arrangements made with Everett; therefore, he was travelling for the “exclusive use” of hauling coal for Everett. Compton alleges that Everett alone should be liable for Fischer’s negligence.

We reject the arguments of each appellant. We adopt reasoning set forth in Allstate Insurance Company v. Liberty Mutual Insurance Company, 368 F.2d 121 (1966) and Baltimore and Pittsburgh Motor Express, Inc. v. Sustrick, 286 F.Supp. 524 (W.D.Pennsylvania, 1968). Both courts held the statutory language in 49 U.S.C., Section 304 and 49 C.F.R., Section 1057, supra, to be not determinative because such language was not necessary for the public’s protection; we maintain that public policy is better served by the joint liability of both carriers here. We cannot expose the public to the indifference of a motor carrier who escapes liability simply because it has either failed to execute a written lease or has not covered the particular activity of the lessor in the written leases.

We are especially persuaded by the decision in Rosu, supra. Both carriers there were found liable due to the fact that the owner/operator was driving under the direction of both carriers at the time of the accident. We recognize that the directions given to the lessor in Rosu, supra, were more immediate and specific. There is no question that Fischer was travelling without directions for the particular haul on April 25, 1973; nevertheless, the directions given by both appellants before Fischer began hauling coal for Everett have been continual. There was no reason to reiterate them before each haul.

We are equally persuaded by the law of Delaware promulgated through Cosmopolitan Mutual Insurance Company v. White, 336 F.Supp. 92 (D.Delaware, 1972). Under a written lease, the motor carrier in Cosmopolitan, supra, had exclusive control of the owner/operator’s truck. The owner/ operator completed one haul for the carrier. The carrier was unable to provide a haul for the return trip. As a result, the owner/operator was travelling to Wilmington, Delaware in anticipation of picking up a load. The accident occurred during that trip. The court recognized that the owner/operator may well have been an independent contractor at the time of the accident; but, the carrier still could not escape liability. The carrier was aware and approved of return hauls for third parties. Since the purpose behind the regulations was to eliminate the abuses of independent contractors and trip leasing, the distinction between independent contractors and employees is no longer recognized. Neither Compton nor Everett can escape liability under this policy.

We affirm.


text:
    441 A.2d 429
    Richard A. SLAYBAUGH and Jean T. Slaybaugh, husband and wife, and Steven A. Slaybaugh and Judy L. Slaybaugh, husband and wife, and Mt. Ridge Farm, Inc., Appellants, v. James NEWMAN, individually, Boyd Sieg, individually, Al Flickinger, individually, Shirley Nace, individually, Joseph A. Myers, individually, and Joseph A. Myers Real Estate, Inc.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1981.
    Filed Feb. 5, 1982.
    Kenneth Lee Rotz, Gettysburg, for appellants.
    Scott L. Kelley, Hanover, for appellees.
    Before WICKERSHAM, WIEAND and MONTEMURO, JJ.
   PER CURIAM:

In March of 1980, a complaint in trespass and in assumpsit was filed in the Court of Common Pleas of Adams County by appellants herein, Richard A. Slaybaugh and Jean T. Slaybaugh, his wife, Steven A. Slaybaugh and Judy L. Slaybaugh, his wife and Mt. Ridge Farm, Inc., a corporation, with its principal place of business in Adams County. The suit was against the Joseph A. Myers Real Estate, Inc. firm, as well as various named real estate salespersons or brokers. The complaint consisted of fifty-nine pages and one hundred eighty-six separate paragraphs, including an attached Exhibit A, Exhibit B and Exhibit C. The thrust of the complaint was that in February of 1979, Dean L. Carey and Doris L. Carey, his wife, were the owners of three tracts of real estate located in Adams County and that Wynbrook Farms, Inc., a Pennsylvania corporation, was the owner of three tracts of real estate in Adams County and that plaintiffs desired to purchase some of said real estate and that they had negotiations through the Joseph A. Myers Real Estate, Inc. corporate firm towards that end. The complaint went on to contend that the defendants, individually or jointly, conspired to cheat and defraud plaintiffs in the overall real estate negotiation and as a consequence, plaintiffs sustained certain alleged damage.

Defendants filed preliminary objections in the nature of a demurrer and on October 2, 1980, the defendants’ demurrer was sustained and the complaint dismissed by President Judge Oscar F. Spicer. President Judge Spicer, however, permitted plaintiffs to file an amended complaint within twenty days of the date of his order.

Accordingly, plaintiffs filed an amended complaint of similar length and preliminary objections were filed thereto, including a motion to strike on the basis that the amended complaint was filed two days late, that is, on October 24, 1980, rather than on October 22, 1980.

President Judge Spicer handed down an order dated February 9, 1981 sustaining all of the defendants’ preliminary objections and dismissing the amended complaint, pointing out that:

Defendants have moved to strike the amended complaint because it was not filed within the twenty (20) day period established in the Order pursuant to Pennsylvania Rule of Civil Procedure 1028(e).
Defendants acted promptly in moving to strike. Nonetheless, plaintiffs contend defendants are not entitled to have the motion sustained because defendants have not shown prejudice.
The Court is of the opinion that the motion must be granted.
Plaintiffs have not attempted to offer any reasonable excuse justifying their tardiness and we can find none in the record.

There being no demonstration whatsoever of any possible prejudice to the defendants by virtue of plaintiffs having filed their amended complaint two days late, we feel compelled in the interest of justice to reverse the order dismissing the amended complaint and hereby remand the record back to the Court of Common Pleas of Adams County in order that a determination may be made as to the legal merit and substance of the amended complaint. Jurisdiction is relinquished.

Reversed and remanded for proceedings consistent with this opinion.

      . If the lower court finds that the amended complaint still is insufficient, it may refuse another opportunity to amend, and enter judgment for the defendants. Lewison v. Vitti, 24 Pa.Commonwealth Ct. 331, 356 A.2d 844 (1976) and Framlau Corp. v. County of Delaware, 223 Pa.Super. 272, 299 A.2d 335 (1972), where we said:
      The question then remains, in disposing of defendant’s demurrer, whether or not plaintiffs complaint is so inadequate that it cannot be cured by amendment. A plaintiff is entitled to amend if the complaint doesn’t exclude the possibility of recovery under a better statement of facts. Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954); Adler v. Helsel, 344 Pa. 386, 25 A.2d 714 (1942). This is especially true when a plaintiffs claim is dismissed on a defendant’s demurrer as in the instant case. Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959). If any material fact remains in dispute a judgment cannot be entered on a demurrer. Arcadia Theatre Co. v. Segall, 349 Pa. 412, 37 A.2d 594 (1944). In the event a demurrer is sustained because a complaint is defective in stating a cause of action, if it is evident that the pleading can be cured by amendment, a court may not enter final judgment, but must give the pleader an opportunity to file an amended complaint. Stevens v. Doylestown Bldg, and Loan Assoc., 321 Pa. 173, 183 A. 922 (1936). This is not a matter of discretion with the court but rather a positive duty. Winters v. Penna. R. Co., 304 Pa. 243, 155 A. 486 (1931); United Mercantile Agencies v. Slotsky, 107 Pa.Super. 467, 164 A. 349 (1933). Conversely, if it clearly appears that a defective complaint cannot be cured, a demurrer to it and dismissal of the action is proper. United Societies of Green Catholic Religion v. Klochak, 340 Pa. 159, 16 A.2d 373 (1940); Seitz v. Fulton National Bank, 325 Pa. 14, 188 A. 569 (1936).

        Id., 223 Pa.Super. at 276, 299 A.2d at 337.


author: SPAETH, Judge: HESTER, Judge,

text:
    441 A.2d 431
    COMMONWEALTH of Pennsylvania v. Thomas D. HENSLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 28, 1981.
    Filed Feb. 12, 1982.

      Alphonse P. Lepore, Jr., Uniontown, for appellant.
    Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
    Before SPAETH, HESTER and SHERTZ, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for criminal homicide, 18 Pa.C.S.A. § 2502. Appellant argues that he should be discharged because he was denied his right under Rule 1100 to a speedy trial, and because “the verdict was against the evidence, the weight of the evidence and the law.” In the alternative, appellant argues that he should be granted a new trial because he was not permitted to impeach an important Commonwealth witness by proving the witness’s prior contradictory statements. We are not persuaded by appellant’s arguments for a discharge, but we are persuaded that impeachment should have been permitted. We therefore vacate the judgment of sentence and remand for a new trial.

The charges arise from the shooting to death of two brothers, Charles and Frank Burnsworth. Appellant is married to Charles’s and Frank’s sister, Dora Jean. All the persons involved in the shooting live near one another in the area of Mill Run, Pennsylvania. On July 25, 1979, Dora Jean and Debra, Charles’s wife, had a fight, apparently over getting water from a nearby reservoir. By the time appellant, Charles, and Frank got home that evening, they had heard about the fight, and were angry about it. Charles approached appellant’s house, which was across from his. He was followed by Frank. Gunfire broke out. When it was over, appellant had shot and killed Charles. Frank was severely wounded and died later at a hospital. Appellant immediately left with his wife and child and turned himself over to the police. He gave the police his shotgun and said he was turning himself in to protect himself and his family. He signed a statement that he had shot Charles because Charles had been shooting at him.

In January 1980 appellant was tried on two counts of criminal homicide, one count charging him with the death of Charles, the other, with the death of Frank. The trial ended in a mistrial when the jury was unable to agree on a verdict. In August 1980 appellant was retried. On the count charging him with the death of Charles, the jury returned a verdict, but on the count charging him with the death of Frank, the jury was again unable to agree on a verdict. Timely post-verdict motions were filed, raising the same issues now argued to us. On January 2, 1981, the lower court filed an opinion and order denying the motions, and on January 16, 1981, imposed sentence.

1

Pa.R.Crim.P. 1100(e)(1) provides that “[w]hen a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.” This provision is applicable when, as here, a trial ends in a mistrial because the jury was unable to agree on a verdict. Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980). Appellant’s retrial therefore had to commence within 120 days of the January mistrial, or by May 15, 1980.

On May 1, 1980, appellant requested a continuance to allow new counsel to prepare his defense. Incident to this request, appellant signed a waiver of his Rule 1100 rights. Although this waiver was defective because it failed to state the period of the continuance, Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978), this defect was cured when the court advised appellant on the record of his right under Rule 1100 to a speedy trial, and appellant agreed to a trial date during the first week of July.

On July 7 the court informed counsel that it was unable because of other business to proceed with the trial. As a result, the trial was continued until August 4, 1980. Appellant argues that because this was done without his having signed a waiver of his Rule 1100 rights, he should be discharged. This argument is without merit, for appellant consented on the record to the continuance:

Q. [By appellant’s counsel] The Court has said that because of other commitments, they are unavailable to try this case this week. Have you heard that?
A. Yes, sir.
Q. And the Court is willing to continue this case until the August Term of Court, that would be the first full week in August. Have you heard that?
A. Yes, sir.
Q. That would begin August 3 through August 8—
THE COURT: August 4.
Q. I’m sorry, August 4th through the 8th. Do you, Tom, have any objection to the Judge continuing this case until then?
A. No, sir.
Q. You do understand what the continuance is, they’re setting trial back?
A. Yes, sir.
Q. You understand that on Rule 1100 they must try you within a certain period of time?
A. I think so, yes, sir.
Q. You understand that the continuance during this period of time will not be counted against that rule?
A. Yes, sir.
N.T. 7/7/80 at 9.

Appellant was also questioned by the prosecutor and the court as to his understanding of his Rule 1100 rights. In these circumstances we are satisfied that appellant has no basis to complain now that his right to a speedy trial was violated.

2

Appellant argues that “the verdict was against the evidence, the weight of the evidence, and the law” because the Commonwealth’s only eyewitness to the shooting, Debra Burnsworth, Charles’s wife, gave testimony inconsistent with her testimony at the preliminary hearing, and because the police “systematically left [the case] uninvestigated.” Brief for Appellant at 10, 11.

We acknowledge that Debra Burnsworth’s testimony at trial was indeed inconsistent with her testimony at the preliminary hearing. Appellant proved, by calling the magistrate, that at the preliminary hearing she had said she was not in a position to see, and did not see, the shooting. No doubt this might have persuaded the jury to disbelieve her testimony at trial that she had seen appellant shoot her husband Charles. But it did not, as the jury’s verdict shows. If this were a case where the witness’s testimony at trial was so inconsistent that the jury had to guess at the truth, we should find the evidence insufficient. Commonwealth v. Bennett, 224 Pa.Superior Ct. 238, 303 A.2d 220 (1978). But here the witness’s testimony at trial was consistent. The jury saw her give that testimony, and it was within the jury’s province to decide that she was telling the truth, Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971), even though it would seem that if she told the truth at trial, she did not at the preliminary hearing.

Similarly, it was for the jury to decide whether the manner in which the police investigated the case raised a doubt about appellant’s guilt. By a neutron activation test, made of appellant’s hands, the police determined that he had fired a gun. Appellant’s argument is that this test was superfluous—he had, after all, told the police that he had fired his shotgun—and that what the police should have done was make a test to determine whether Charles or Frank Burnsworth had fired a gun. This argument has considerable force. For in his statement, appellant had told the police that he had fired in self-defense. Common sense suggests that if neutron activation tests were to be conducted, they should have included those who appellant said had fired on him. Then the police would, it seems likely, have had either a powerful corroboration or contradiction of appellant’s statement. But that does not mean that we may declare the verdict “contrary to the weight of the evidence,” as appellant argues we should. Brief for Appellant at 11. It is not our role to tell the police how to investigate a case. Rather, we are to decide whether the evidence that was found by the police and introduced at trial was sufficient. Nor are we persuaded by appellant’s argument that the verdict should be set aside as “shocking to the judicial conscience.” Id. We do not mean to exclude the possibility that in another case we might find an investigation so inadequate as to represent a denial of due process. We only say that on the record here we find no such denial. The police did examine the front of appellant’s house, and found no evidence that it had been hit by gunfire, which one would expect it to have been, if indeed, as appellant said, Charles Burnsworth had fired at him some 15 times. The jury knew that the police had not ordered neutron activation tests to determine whether Charles or Frank Burnsworth had fired a gun, for appellant developed that point at trial. Sometimes, one may be sure, a jury acquits because it is dissatisfied with a police investigation. And the jury might have done so here. But if a jury believes a witness, like Debra Burns-worth, who says she saw the shooting, it may convict. Appellant says that the police “systematically left [the case] uninvestigated,” and “set out to convict a man and accomplished their end.” Brief for Appellant at 11. Unhappily, there have been such cases. Cf. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967). But the record does not show that this is one.

3

Jesse Burnsworth, father of Charles and Frank, testified at both appellant’s first and second trial. At appellant’s first trial, appellant’s counsel elicited the following testimony from him:

Q. Without telling us what somebody else was talking about, did you know—did you hear of some spent shells that were taken from Chuck’s [Charles’s] porch—
A. No, I didn’t.
Q. —and hidden?
A. Not at that time, no.
Q. And later did you?
A. Yes, sir.
N.T. 310.

At appellant’s second trial, Mr. Burnsworth testified differently:

Q. [By appellant’s counsel] Did anyone say anything to you about—did anyone say anything to you about shells?
A. No, no one said anything.
Q. Did you say, at a prior hearing, that someone mentioned some shells around Chuck’s body?
A. What’s that?
Q. Did you say, at a prior proceeding, that someone had mentioned something to you about shells being around Chuck’s body.
A. No, I did not.
Q. You did not. Are you sure of that?
A. I am sure of that.
N.T. 251-52.

When appellant’s counsel sought to impeach Mr. Burnsworth by proving his prior testimony, the lower court sustained the Commonwealth’s objection and did not permit the impeachment. In its opinion, the court explained this ruling as follows:

At that trial [the first trial], the witness was asked if he heard of spent shells being removed from the porch where the body of decedent Charles Burnsworth was located. The witness replied no, but indicated that he was so informed at a later point in time.
At the present trial, the witness was again questioned about the events surrounding the first time he saw the decedent’s body. The witness was asked if anyone informed him of shells near the decedent, to which he replied no. At no time, however, was the witness questioned about information he may have received at a subsequent time.
Consequently, this Court can find no error in refusing to admit the prior testimony of the witness. The answers given at the prior proceeding dealt with a distinctly different point in time than that period about which the witness was questioned at the present trial. Therefore, the answers given by the witness were not inconsistent.
Slip op. at 4

We are unable to accept this explanation. The record does not support but, rather, contradicts the court’s statement that the questions at the first trial “dealt with a distinctly different point in time” than did the questions at the second trial. At the second trial, Mr. Burnsworth was asked, “[D]id anyone say anything to you about shells?” This was a general question, which gave Mr. Burnsworth no reason to assume that counsel meant to limit his inquiry to the time of the incident itself. Further, if Mr. Burnsworth did make such an assumption, it should have been dispelled by counsel’s next question, asking whether at the first trial, he had said that “someone mentioned some shells near Chuck’s body.” At the first trial, Mr. Burnsworth had said that someone had mentioned that there had been spent shells near Charles’s body, not at the time of the shooting but later. It is thus clear that at the second trial counsel was directing Mr. Burnsworth’s attention to the very same period as at the first trial. It is equally clear that Mr. Burnsworth flatly contradicted his prior testimony.

It is long settled that a prior inconsistent statement may be used to impeach a witness. Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976); Commonwealth v. Tucker, 452 Pa. 584, 307 A.2d 245 (1973); Commonwealth v. Loar, 264 Pa. Superior Ct. 398, 412, 399 A.2d 1110, 1117 (1979). Here, the lower court’s error in not permitting impeachment requires the grant of a new trial. Mr. Burnsworth was an important witness. He testified that appellant had threatened to “give [Charles] a bellyful of lead” if he raised the issue of the women’s fight, thus contradicting appellant’s claim that he did not provoke Charles but that Charles started the shooting because he was angry about the women’s fight. N.T. 237. Also, Mr. Burnsworth was among the first to arrive at the scene of the shooting. He testified that there were no shells near Charles’s body. This was particularly damaging to appellant’s claim that Charles had shot at him. Had the jury known that Mr. Burnsworth had said at the first trial that someone had said that there were spent shells near Charles’s body, they might have decided not to believe him. As we have mentioned, Debra Burnsworth was the only eyewitness called by the Commonwealth, and her prior testimony was inconsistent. If Mr. Burnsworth had also been impeached, the verdict might have been different. At least, it was different at the first trial, when the jury heard about spent shells near Charles’s body. In any event, the lower court’s error in not permitting impeachment cannot be declared harmless.

The judgment of sentence is reversed, and the case is remanded for a new trial.

HESTER, J., files a dissenting statement.

The decision in this case was rendered prior to SHERTZ, J., leaving the bench of the Superior Court of Pennsylvania.

HESTER, Judge,

dissenting:

I respectfully dissent. I would affirm on the Opinion of Judge Capuzzi of the court below.

      . Appellant argues that the time from July 7 to August 4 should not be excluded from the 120 day period because the Commonwealth failed to file a petition for extension of time and to show, incident to the petition, that despite due diligence, it was unable to try appellant within 120 days. The Commonwealth’s diligence is not at issue, as appellant waived his Rule 1100 rights.

      . We need not decide whether Mr. Bumsworth’s testimony at the first trial was admissible at the second trial for the truth, for appellant only sought its admission for impeachment. But see Commonwealth v. Loar, supra (prior inconsistent statement admissible for truth where declarant testifies and is subject to cross-examination).


author: SHERTZ, Judge:

text:
    441 A.2d 436
    COMMONWEALTH of Pennsylvania v. Gary Allen PITTMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1981.
    Filed Feb. 12, 1982.

      Vincent J. Roskovensky, II, Uniontown, for appellant. Gerald R. Solomon, District Attorney, Uniontown, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SHERTZ, Judge:

Following a jury trial, Appellant was found guilty of Robbery and Terroristic Threats. Appellant waived his right to file post trial motions and trial counsel brought this appeal. Subsequently trial counsel was replaced and Appellant’s present counsel filed a brief raising ineffective assistance as the sole basis for a demand for a new trial.

Although issues not raised in post-verdict motions will not be considered on appeal, there is an exception where ineffective assistance of prior counsel is raised. In such a case, ineffectiveness of counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents Appellant. Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980). In the present case, this appeal presented the first opportunity for Appellant’s present counsel to raise the issue. See e.g., Commonwealth v. Taggert, 258 Pa.Super.Ct. 210, 392 A.2d 758 (1978). Therefore, we shall consider the merits of Appellant’s claim.

When confronted with a claim of ineffective assistance of counsel, we must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and if so, it must be determined whether the course chosen by counsel had some reasonable basis to effectuate his client’s interest. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); Commonwealth v. Burrell, 286 Pa.Super. 502, 429 A.2d 434 (1981); Commonwealth v. Price, 278 Pa.Super. 255, 420 A.2d 527 (1980).

Appellant contends that trial counsel was ineffective for failing to call an alibi witness or for failing to request a continuance “until the witness could have been located.” Further, Appellant suggests that counsel was ineffective for failing to explain to the jury his failure to call the witness.

The Commonwealth’s case was based solely on the identification testimony of a water company clerk who was present during the robbery. A second clerk present during the robbery was unable to make a positive identification.

When the Commonwealth rested, Appellant’s trial counsel, at side bar, requested a recess to wait for a defense witness who had been subpoenaed but had not appeared. Trial counsel indicated that he wished to speak to the witness before he put Appellant on the stand. The trial judge denied the request for a recess, indicating that trial counsel would be permitted to recall Appellant after the witness testified.

Appellant then took the stand and testified that, at the time of the robbery, he was at his cousin’s home and that he had spent the “whole complete day” there. Following cross-examination of Appellant, trial counsel, at side bar, requested a continuance because the subpoenaed witness had not arrived and that trial counsel wanted to speak to the witness to determine if the witness was going to testify. No explanation was offered to the trial judge as to the identity of the witness or the nature of his testimony. The trial judge then recessed for the day informing the jury that a subpoenaed defense witness had failed to appear and that the defense was requesting time to “ascertain the whereabouts of the witness and to bring him on the witness stand if it deems necessary.” When the trial resumed the following morning, the defense and Commonwealth presented closing arguments. No additional explanation was offered for the defense’s failure to call the subpoenaed witness.

It is settled that the failure to call a witness whose testimony would be helpful to the defense, constitutes ineffective assistance of counsel unless counsel had some reasonable basis for his decision not to call the witness. Commonwealth v. Abney, 465 Pa. 304, 350 A.2d 407 (1976); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). See also: Commonwealth v. Burrell, 286 Pa.Super.Ct. 502, 429 A.2d 434 (1981); Commonwealth v. Price, 278 Pa.Super.Ct. 255, 420 A.2d 527 (1980). In a case where virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant, failure to explore all available alternatives to assure that the jury heard the testimony of a known witness who might be capable of casting doubt upon the Commonwealth’s witness’s truthfulness, is ineffective assistance of counsel Commonwealth v. Twiggs, 460 Pa. at 110, 331 A.2d at 443; Commonwealth v. Abney, 465 Pa. at 309, 350 A.2d at 410.

Based on this record we are unable to conclude whether the defense in fact had an alibi witness and, if so, whether counsel failed to explore all alternatives available to assure that the jury heard such testimony. Furthermore, absent additional information about the elusive witness and the nature of his testimony, we cannot discern whether counsel was ineffective for failing to explain to the jury his failure to call the witness following the recess.

Where the reason for counsel’s decision cannot be determined from the record, this court must remand for an evidentiary hearing to determine the basis for counsel’s actions. Commonwealth v. Twiggs, 460 Pa. at 110, 331 A.2d at 443; Commonwealth v. Price, 278 Pa.Super.Ct. 255, 420 A.2d at 530; See, Commonwealth v. Burrell, 286 Pa.Super.Ct. 502, 429 A.2d at 436. Here, it is impossible to determine whether there was an alibi witness and, if so, whether there was a reasonable basis for counsel’s decision not to call such witness or, in the alternative, to request a continuance pending the availability of this witness. Neither can we determine whether there was a reasonable basis for trial counsel’s decision not to offer some explanation for the failure of the witness to testify.

The judgment of sentence is vacated and this case is remanded for an evidentiary hearing to determine whether there was a reasonable basis for trial counsel’s actions. This Court does not retain jurisdiction.

The decision in this case was rendered prior to the expiration of Judge SHERTZ’s commission of office on the Superi- or Court of Pennsylvania.

      . This appeal was timely filed by trial counsel. However, on June 11, 1980, Appellant petitioned for the assignment of new counsel. This petition was denied by the trial judge. Appellant then filed a petition for reconsideration of the petition for the assignment of new counsel. On August 21, 1980, Appellant’s present counsel was appointed by the trial judge.

      . Appellant’s counsel contends that trial counsel “made a statement at the conclusion of the first days testimony that a continuance was being requested so that the defendant could present the testimony of an alibi witness.”- There is nothing in this record which supports that version of the facts.

      . Although it is not expressly stated, appellant implies that the missing witness would corroborate Appellant’s alibi defense.

      . Appellant also alleges ineffectiveness of trial counsel for failure to challenge the trial identification of Appellant by the prosecution’s chief witness when she failed to identify Appellant from a photo array which may or may not have included Appellant’s picture. The record shows that trial counsel, on cross-examination, alertly brought out the fact that the witness did not identify Appellant from pre-trial photographic array. There is no evidence in the record as to whether Appellant’s picture was even included in the photographic array.
      Here there was neither a pre-trial identification resulting from the photo array nor an allegation that the procedure was invalid. Additionally, there was no claim that the in-court identification was impermissibly tainted by the pre-trial procedure. See e.g., Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Commonwealth v. Lavelle, 277 Pa.Super.Ct. 518, 419 A.2d 1269 (1980). Counsel may not be deemed ineffective for failure to raise a meritless claim. Commonwealth v. Tarver, 491 Pa. 253, 420 A.2d 438 (1980).


text:
    441 A.2d 438
    Virginia Ann Buellens KNISELY v. Robert M. KNISELY, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Feb. 12, 1982.

      Deborah E. Gilbert, Waynesburg, for appellant.
    William R. Davis, Waynesburg, for appellee.
    Before CERCONE, President Judge, and WIEAND and SHERTZ, JJ.
   SHERTZ, Judge:

This is an appeal by Robert M. Knisely, Jr., from a lower court order entered pursuant to the Protection from Abuse Act. The order in question directs Appellant to refrain from threats of abuse toward his wife, Virginia Knisely, and to keep the peace toward her. Appellant asserts his actions do not constitute abuse within the purview of the Act. Because Appellant failed to file exceptions to the decision of the lower court, we cannot reach the merits of this appeal and, accordingly, we must affirm.

Section 10189 of the Act in question provides that any proceeding thereunder shall be in accordance with the Rules of Civil Procedure. In addition, Rule 1905, Pa.R.Civ.P., which was promulgated to implement the Act, provides: “The decision of the court and the time for exceptions thereto shall be governed by Rule 1038(b) to (e) inclusive.” Rule 1038(d), Pa.R.Civ.P., in turn, requires the filing of exceptions to the decision of the lower court.

The record in this instance reveals that Appellant failed to file exceptions. Such failure requires us to affirm the decision of the lower court inasmuch as Appellant has waived all issues not raised in exceptions. See e.g., Estate of Kotz, 486 Pa. 444, 406 A.2d 524 (1979); Estate of McGrorey, 474 Pa. 402, 378 A.2d 855 (1977).

Order affirmed.

The decision in this case was rendered prior to SHERTZ, J., leaving the bench of the Superior Court of Pennsylvania.

      . Pa.Stat.Ann. tit. 35, § 10181-10190 (Purdon Supp. 1981-82)

      . See Explanatory Note to Rules 1901-1905, Pa.R.Civ.P.