author: HOFFMAN, Judge:

text:
    502 A.2d 1317
    Josephine JOHNSON, Appellant, v. GENERAL MOTORS CORPORATION.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed Jan. 3, 1986.

      Laurence S. Berman, Philadelphia, for appellant.
    Francis P. Burns, III, Philadelphia, for appellee.
    Before SPAETH, President Judge, and HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order sustaining appellee’s preliminary objections in the nature of demurrers and dismissing appellant’s complaint. Appellant contends that (1) she has standing to sue appellee for breach of warranty as either a buyer or a third party beneficiary under the Uniform Commercial Code (UCC), 13 Pa.C.S.A. §§ 1101-9507; (2) her warranty action is not barred by the requirement of horizontal privity; (3) she has a cause of action in tort against appellee, manufacturer of an allegedly defective product, because she has sustained economic loss and been subjected to a serious risk of personal injury and property damage; and (4) thé lower court erred in denying her leave to file an amended complaint that, appellant argues, alleges facts that properly state a cause of action in tort against appellee. For the following reasons, we affirm the order of the court below.

On May 22, 1981, appellant instituted this class action against appellee by filing a complaint in assumpsit (breach of express and implied warranties) and in trespass (negligence). Appellant sought damages for allegedly defective automobile transmissions manufactured by appellee. On August 19, 1981, appellee filed preliminary objections to appellant’s complaint alleging, inter alia, that appellant lacked standing to sue for breach of warranty and that she failed to state a cause of action for negligence. On January 27, 1984, before the lower court ruled on appellee’s preliminary objections, appellant moved for leave to file an amended complaint that, inter alia, added a count in strict liability. The lower court denied appellant’s motion on July 19, 1984, and, on December 13, 1984, sustained appellee’s preliminary objections and dismissed appellant’s complaint. This appeal followed.

A plaintiff must state in a concise and summary form the material facts on which a cause of action is based, Pa.R.Civ.P. 1019(a), and is not exempt from so pleading solely because he or she brings suit as a class action, see id. 1701(b) (“the procedure in a class action shall be in accordance with the rules governing the form of action in which relief is sought”). Accordingly, “[t]he defendant may file any applicable preliminary objections ... to the underlying merits of the class action claims____” Id. 1705 explanatory note-1977. Furthermore, “[t]he class action in Pennsylvania is a procedural device designed to promote efficiency and fairness in the handling of large numbers of similar claims; class status or the lack of it is irrelevant to the question whether an action is to be heard____” Lilian v. Commonwealth, 467 Pa. 15, 21, 354 A.2d 250, 253-54 (1976) (footnote omitted). With these principles in mind, we review appellee’s demurrers in accordance with these well-established standards: “[w]e must accept as true all well-pleaded facts and the reasonable inferences therefrom. A demurrer can be sustained if it is certain that no recovery is permitted. Any doubt must be resolved against sustaining the demurrer.” Douglas v. Schwenk, 330 Pa.Superior Ct. 392, 394, 479 A.2d 608, 609 (1984) (citations omitted). Accepting as true appellant’s well-pleaded facts and the reasonable inferences therefrom,1 * we find that, because appellant would not be entitled to any recovery, the demurrers were properly sustained.

Appellant first contends that she has standing to sue appellee as either a buyer under 13 Pa.C.S.A. § 2103(a) or as a third party beneficiary of an express or implied warranty under 13 Pa.C.S.A. § 2318. Appellant’s husband purchased the automobile in question, a 1978 Buick Regal, on November 7, 1977. (Appellant’s Complaint ¶ 3). Appellant alleges that “[he] departed this life on August 18,1978, and the title of the vehicle in question passed to [appellant] by operation of law making [her] a proper party in these proceedings. [Appellant] now owns and continues to use the vehicle in question.” (Id.).

Appellant is obviously not a buyer of the car as that word is defined in the UCC: “[a] person who buys or contracts to buy goods.” 13 Pa.C.S.A. § 2103(a). Appellant’s husband was that person. Appellant, however, points to the comments to § 2103(a) in arguing that she is a “legal successor in interest” which would qualify her as a buyer entitled to bring this warranty action:

The phrase “any legal successor in interest of such person” has been eliminated [in the definition of “buyer”] since § 2210 of this Article, which limits some types of delegation of performance on assignment of a sales contract, makes it clear that not every such successor can be safely included in the definition. In every case, however, such successors are as of course included.

Id. comment 1 (emphasis added). Section 2210 of the UCC “recognizes both delegation of performance and assignability as normal and permissible incidents of a contract for the sale of goods.” Id. § 2210 comment 1. Appellant, however, is not a delegatee; she is performing no “duty” owed by her husband to appellee. Id. § 2210(a). Nor is she an assignee; her husband did not assign to her any of the rights he may have had under his contract of purchase. Id. § 2210(b). Appellant cites no case, and we have found none, in which an heir was held to be a “successor in interest” under § 2103(a). Accordingly, we find this claim meritless.

Appellant alternatively argues that she is a third party beneficiary under § 2318 of the UCC, which provides as follows:

The warranty of a seller whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.

Id. § 2318 (emphasis added). We disagree. Appellant alleges that she “sustained damages which are compensable at law for dimunition in value of [her automobile], for repairs to [the car’s] transmission ], and [she has] been caused to motor in [a] vehicle[] unsafe for the highways.” (Appellant’s Complaint ¶ 11). Nowhere in appellant’s complaint (or in her proposed amended complaint) does appellant allege that she suffered personal injury. Appellant, therefore, is not a third party beneficiary under § 2318.

Appellant contends, however, that § 2318 does not limit the extension of appellee’s warranty to only those who have suffered personal injury. Comment 3 to § 2318 states that “the [first alternative of § 2-318 of the Uniform Commercial Code (the alternative adopted by our Legislature) ] ... is neutral and is not intended to enlarge or restrict the developing case law on whether the seller’s warranties, given to his buyer who resells, extend to other persons in the distributive chain.” (Emphasis added). Assuming, arguendo, that appellant is a person to whom the buyer (her husband) resold the car,'the comment states nothing about extending § 2318 beyond personal injuries. We note that our Legislature did not adopt the so-called “third alternative” of § 2-318 of the Uniform Commercial Code:

A seller’s warranty whether express or implied extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty. A seller may not exclude or limit the operation of this section with respect to injury to the person of an individual to whom the warranty extends.

1A U.C.C. (U.L.A.) § 2-318 (Alternative C) at 53 (1976) (emphasis added). This alternative extends warranty protection the furthest. See 13 Pa.C.S.A. § 2318 comment 3 (third alternative “extend[s] the rule beyond injuries to the person”). While our Supreme Court has enlarged the class of beneficiaries to whom the seller’s warranty extends, see Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974) (holding that a lack of horizontal privity itself may no longer bar an injured party’s suit for breach of warranty), appellant cites no case in this Commonwealth which has extended the warranty to persons (other than, of course, the buyer) who do not sustain personal injury. Appellant’s argument is better addressed to the Legislature and not to this Court. See, e.g., House v. Allegheny County, 153 Pa.Superior Ct. 396, 402, 34 A.2d 48, 51 (1943) (this Court cannot write into a statute a provision obviously and intentionally omitted therefrom by the Legislature). In conclusion, we find that appellant has no standing to bring an action in assumpsit against appellee as either a buyer under 13 Pa.C.S.A. § 2103(a) or as a third party beneficiary under § 2318 and the case law enlarging it.

Appellant next contends that she has a cause of action in tort against appellee for an allegedly defective product that caused her to sustain economic loss and to be subject to a serious risk of personal injury or property damage. The lower court, citing Industrial Uniform Rental Co., Inc. v. International Harvester Co., 317 Pa.Superior Ct. 65, 463 A.2d 1085 (1983), for the proposition “that the law in Pennsylvania does not recognize a claim in tort for the recovery of economic loss alone,” (Lower Court Opinion at 5), found that appellant failed to state a cause of action because “[b]oth [her] original and amended complaints alleged purely economic loss.” (Id. at 6). While we disagree with the court’s reading of Industrial Uniform, we do agree that appellant has failed to state a cause of action in tort.

In Industrial Uniform,

[t]he question before this court [was] whether Pennsylvania courts should recognize a claim in strict liability [under § 402A of the Restatement (Second) of Torts (1965) ] for recovery of economic losses, where the injury is only in the deterioration of the product itself, and is not the result of a defect causing some untoward occurrence thereby damaging the product.

Industrial Uniform Rental Co., Inc. v. International Harvester Co., supra, 317 Pa.Superior Ct. at 66-67, 463 A.2d at 1086 (footnotes omitted). We stated that “[t]he doctrine of products liability was developed primarily as a means by which consumers could be compensated for personal injury and property damage caused by defective products,” id., 317 Pa.Superior Ct. at 71, 463 A.2d at 1089, and that “[t]he warranty theory, however, now governed by the [UCC], provides for liability for losses on bargains and other injuries resulting from failure of the product to meet the expectations of the buyer where the seller has breached express or implied warranties to the buyer,” id., 317 Pa.Superior Ct. at 71, 463 A.2d at 1089. See also Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1172-73 (3d Cir.1981) (distinguishing between the “safety-insurance policy” of tort law and the “expectation-bargain protection policy” of warranty law).

After reviewing the case law in this and other jurisdictions,

we formulate[d] the following rule: In an action between commercial enterprises, where defective design, manufacture and sale of a product is alleged, where there is nothing in the record to indicate that the defect is a condition potentially dangerous to persons or to property, and where the purported defect results in progressive deterioration of the product itself, the buyer’s cause of action for its economic losses against the seller is in breach of warranty under the UCC.

Industrial Uniform Rental Co., Inc. v. International Harvester Co., supra, 317 Pa.Superior Ct. at 65, 463 A.2d at 1093. Although far from clear, this “is a mercurial, unsettling legal issue,” id., 317 Pa.Superior Ct. at 87, 463 A.2d at 1096 (HESTER, J., dissenting), Industrial Uniform suggests to us that tort liability will be imposed upon a defendant for a defective product which is unreasonably (“potentially”) dangerous (for example, by causing “some untoward occurrence”), thereby endangering people and property. Cf. Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., supra at 1173 (“the line between tort and contract must be drawn by analyzing interrelated factors such as the nature of the defect, the type of risk, and the manner in which the injury arose”). Therefore we must read appellant’s complaint with a view to determining whether she states that the allegedly defective transmission is unreasonably dangerous (thus implicating tort law) or whether it is simply unfit for its intended use or failed to meet appellant’s expectations (thus implicating warranty law).

Appellant alleges that “[s]hortly before February 11, 1981, the date of repair of [her] vehicle, [it] began to exhibit signs of a defective transmission.” (Appellant’s Complaint ¶6).

[S]aid transmission was defective in having:

a) Defective seal components; ’
b) Early and slipping shifts;
c) No dentent down shift;
d) Delayed or full throttel [sic] shifts causing transmission to improperly operate in the high pressure mode;
e) Defective clutch housings which have the snap ring groove formed too deep, reducing the strength of the housing in the snap ring retention area;
f) Higher than normal oil pressures within the transmission which force the snap ring out of the groove and deforms the housing;
g) Direct clutch plate failures (burned) due to cut or rolled seals;
h) Defective “no reverse” conditions;
i) Defective governors causing delayed or no 2-3 up-shifts;
j) Worn or stripped governor “driven gear teeth”;
k) Defective pumps and pump gears;
l) Clutch disengagement (slippage) and engine overrun during turn;
m) Low transmission fluid levels;
n) Defective wire mesh screen;
o) Transmission fluid leaks at the oil cooler line hoses due to loose and/or stripped hose clamps;
p) Low speed first gear growl;
q) Whistle type noise during 1-2 upshift at medium to heavy throttle application;
r) Defective converter units; and
s) Such other and different defects, the full extent of which will be determined by discovery.

(Id. 1Í10). In her amended complaint, appellant adds that “extensive repairs became necessary to remedy the premature wearing of [her] automobile’s transmission and other parts of [her] automobile which were damaged by the defective transmission.” (Appellant’s Amended Complaint ¶ 8 (emphasis added))., As for the damages caused by these defects in the transmission, besides those for repairs to the transmission and her car (the latter unspecified), appellant alleges that she “[has] been caused to motor in [a] vehicle[ ] unsafe for the highways.” (Appellant’s Complaint ¶ 11). This safety “hazard” is explained in greater detail in her amended complaint:

[Appellant] ... [has] been subjected to unreasonably dangerous and hazardous conditions and a high risk of danger. There is a high risk that transmission failure will cause [appellant] ... to suffer physical harm as a result of:
(a) Failure of the transmission to shift;
(b) Failure of transmission during hill climb causing vehicle to suddenly descend hill;
(c) Sudden loss of power while operating the vehicle on the highway;
(d) Loss of vehicle control;
(e) Engine seizure;
(f) Transmission failure;
(g) Fire; and
(h) Propulsion of engine parts into the passenger compartment or onto the highway, etc.

(Appellant’s Amended Complaint ¶ 19 (emphasis added)). And, finally, she alleges that she “[has] suffered or will be unreasonably subjected to a high risk of suffering property damage.” (Id. ¶ 20 (emphasis added)).

Notwithstanding the detailed allegations in her complaints, we do not believe that appellant has stated a cause of action in tort under the Industrial Uniform standard. Appellant has failed to assert that the alleged defects in her automobile’s transmission made it unreasonably dangerous to the detriment of persons or property. The transmission prematurely wore out; appellant pleads no unexpected occurrence that harmed anyone or anything, including the automobile itself. Even without such an occurrence, we do not believe that the progressive deterioration of the transmission made it an unreasonably dangerous product. Again, no one was hurt; no property was damaged. Appellant pleads a variety of “risks” that she faced, yet there is no allegation of even a near occurrence of an accident which almost harmed someone or something. Furthermore, we fail to see how appellant is subjected to any risk given the fact that her transmission has been repaired. (Appellant’s Complaint If 7). We conclude that appellant simply may have received a transmission which failed to perform as expected or was of an unexpected quality.

This case is similar to Industrial Uniform, supra, where trucks purchased by the plaintiffs developed cracks and failures in the frames and were repaired; we held that the complaint failed to state a cause of action in tort. Those cases where an unexpected occurrence did occur, thus creating a real, not a risk of, danger to persons or to property^ are distinguishable. In Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., supra, a front-end loader had an allegedly hazardous defect (a faulty design in that the machine was not equipped with a fire suppression system or with adequate warnings on the steps to be taken if a fire did occur) that caused a sudden and highly dangerous occurrence, a fire which damaged the loader and thus endangered people and property. See also E.J. Stewart, Inc. v. Aitken Products, Inc., No. 81-3792 (E.D.Pa. Oct. 19, 1982) (heating element manufactured by the defendant and incorporated into a heater caused a fire at the plaintiffs building).

Also factually similar to the instant case is East River Steamship Corp. v. Delaval Turbine, Inc., 752 F.2d 903 (3d Cir.) cert. granted, — U.S. —, 106 S.Ct. 56, 88 L.Ed.2d 45 (1985) (applying the federal common law of admiralty and using the Pennsylvania Glass Sand Corp. test), where allegedly defective turbines were installed on supertankers. The court found that, “[b]ecause the defect involved gradual deterioration of the turbine’s inner mechanisms, the defect did not pose a sudden or calamitous injury to persons or property.” Id. at 909. Of particular note is the court’s response to the plaintiffs’ claim that the defective turbine placed one of the tankers and its crew in peril during a storm:
In an unsworn letter, the STUYVESANT’S [the supertanker’s] master noted that because of the turbine’s malfunction, the STUYVESANT could not reach top speed, and thus had difficulty making headway into a storm off the Gulf of Alaska. (App. at 206). The difficulty caused the master to fear that the ship would drift hazardously close to the lee shore of the Gulf. The ship, however, did successfully travel against the storm, and in fact proceeded to Panama, a voyage of some seven weeks. Indeed, after unloading its cargo at Panama, the ship proceeded to San Francisco, where the turbine was examined for problems. As the district court stated, “any nascent allegations of acute peril to the ship or crew resulting from the turbine defect are belied by the course of action undertaken after the defect manifested itself.” (App. at 264).

Id. at 909-10 n.3. The court stated: “Even assuming that such allegations of imminent danger are credible, we nonetheless find that because no persons or property were injured or damaged, no tort recovery is appropriate in this case given the qualitative nature of the defect and the gradual manner in which the defect manifested itself. ” Id. at 909-10 (emphasis added) (footnote three, reproduced supra, omitted). Thus the court appears to be suggesting that, if there had been personal injury or property damage, such damages may have supported an inference that, even though the deterioration was progressive, the turbines were unreasonably dangerous. Here, the allegations of “risk” are even less concrete than those asserted in East River Steamship Corp. We are inclined, in fact, to classify appellant’s allegations of risk as wholly speculative. We believe that the alleged defects in appellant’s automobile transmission involved no more than “internal deterioration and breakdown” of the transmission’s parts, thus “directly implicat[ing] the intended performance level” of the transmission and appellant’s “disappointed expectations” in it. See id. at 909.

It follows that appellant’s final contention is meritless. Because there is no “reasonable possibility that a cause of action may be stated,” Dietrich Industries, Inc. v. Abrams, 309 Pa.Superior Ct. 202, 213, 455 A.2d 119, 125 (1982), we find that the lower court properly denied appellant’s motion for leave to file an amended complaint. No further pleading will transform appellant’s warranty claim into a tort one.

Having found that the lower court properly sustained appellee’s preliminary objections, we affirm the court’s order.

Order affirmed.

      . Appellant refers to the requirement as a “defense.”

        . Pursuant to Pa.R.Civ.P. 1704, appellant included in her complaint a separate section entitled "class action allegations.”

      . The lower court found that “the amended complaint added nothing new factually or otherwise which would support [appellant’s] cause of action” and "in many instances the proposed amended complaint recited identical facts and allegations.” (Lower Court Opinion at 4). While we agree that appellant’s amended complaint does not cure the pleading deficiencies of the original complaint, we will cite to the amended complaint where we believe it differs from the original.

      . Query whether § 2318 may be inapplicable to the instant case on another basis. If appellant is a subsequent purchaser, see infra note 5, then arguably appellee’s warranty cannot "extend[ ] to any natural person who is in the family or household of his buyer” because the buyer, appellant’s husband, no longer owns the automobile in question.

      . Neither party argues the point here, but appellant, as an heir of her husband, may be a subsequent purchaser. See 13 Pa.C.S.A. § 1201 (defining a purchaser as one who, inter alia, takes by a "voluntary transaction creating an interest in property”). But see Brief for Appellant at 13 ("[Appellant] was not a subsequent purchaser against whom a horizontal privity defense arguably could be raised since she acquired the automobile as an heir of the original owner.” (Emphasis and footnote omitted)).

      . Appellant also cites the following language in Salvador for the proposition that our Supreme Court did not distinguish between personal injury and other types of damages: "We have decided that no current societal interest is served by permitting the manufacturer to place a defective article in the stream of commerce and then to avoid responsibility for damages caused by the defect.” Salvador v. Atlantic Steel Boiler Co., supra, 457 Pa. at 32, 319 A.2d at 907 (emphasis added). We disagree. In Salvador, the injured party, an employee of the buyer of a steam boiler, lost about seventy-seven per cent of his hearing ability allegedly as a result of an explosion of the boiler. Neither Salvador, nor any other case in this Commonwealth, indicates that "damages” in this context refers to other than personal injuries.

      . The Salvador court noted the language in comment 3 (pertaining to the first alternative of § 2-318) to 12A P.S. § 2-318, now 13 Pa.C.S.A. § 2318, allowing for the developing case law to extend the seller’s warranties to other persons. Salvador v. Atlantic Steel Boiler Co., supra, 457 Pa. at 27-29, 319 A.2d at 905-06. Thus the Court enlarged § 2-318 consistently with the § 2-318 alternative adopted by our Legislature. Salvador’s employer purchased the boiler from a retail seller that evidently purchased it from the manufacturers. The manufacturers claimed that, because Salvador did not allege a contractual relationship with them, horizontal privity was lacking and therefore there could be no action in assumpsit.

      . In her brief appellant does not distinguish between negligence and strict liability theories.

      . We do not believe that Industrial Uniform is limited to "action[s] between commercial enterprises.” We believe there is no connection between the question presented here, whether an action can proceed in tort where only economic loss and "risk" are alleged, and whether the plaintiff is an individual or a commercial entity. See Industrial Uniform Rental Co., Inc. v. International Harvester Co., supra, 317 Pa.Superior Ct. at 87, 463 A.2d at 1097 (HESTER, J., dissenting) ("It matters not whether the injured party is a commercial or individual consumer”); cf. Pennsylvania Glass Sand Corp. v. Caterpiller Tractor Co., supra at 1175 (noting that Pennsylvania law would not differentiate between the cases that could be brought under the UCC and those under tort law based on the nature of the plaintiff).

      . Like other courts faced with the instant question, our discussion today applies to product liability cases brought both in negligence and in strict liability. See, e.g., East River Steamship Corp. v. Delaval Turbine, Inc., 752 F.2d 903, 908 n. 2 (3d Cir.1985). This position is entirely reasonable in light of the fact that in both instances a plaintiff seeks recovery for harm caused by unsafe goods and not simply for harms caused by a product which fails to perform to expectations.

      . A product can be unreasonably dangerous without progressively deteriorating. In the latent defect cases, no such deterioration occurs, but the substances involved tire undoubtedly hazardous: they are either known to cause, or are highly suspected of causing, physical harm. See, e.g., Pearl v. Allied Corp., 566 F.Supp. 400 (E.D.Pa.1983) (urea formaldehyde, suspected of causing cancer); School District v. ASARCO, Nos. 1414-15 June Term 1982 (Ct. C.P. Phila. County Dec. 6, 1983) (asbestos); Area Vocational Technical Board v. National Gypsum Co., No. 119 June Term 1982 (Ct. C.P. Lancaster County Sept. 7, 1983) (same).

      . Both E.J. Stewart, Inc., supra, and another case cited by appellant, SEPTA v. General Motors Corp., No. 83-278 (E.D.Pa. June 14, 1983), applied the Pennsylvania Glass Sand Corp. test in determining whether a claim was stated in assumpsit or in tort. Pennsylvania Glass Sand Corp. was a diversity action, and the court did not have the benefit of our decision in Industrial Uniform. The SEPTA case arguably supports appellant’s claim in the instant case. In that case, the court held that the plaintiff stated a cause of action under § 402A of the Restatement (Second) of Torts (1965), where SEPTA asserted that the alleged defect, the placement of air conditioning systems within the engine compartments of SEPTA buses, caused physical harm to other parts and components of the buses and "posed a danger to the health and safety of the riding public and the driver of the bus.” SEPTA v. General Motors Corp., supra slip op. at 2-4. The court, acknowledging that the question was a “close” one, noted that "[t]he underlying dispute between the parties appears to be simply that SEPTA did not receive the quality of the product it expected,” but nonetheless inferred that the product might be unsafe. Id. slip op. at 4. While here appellant does allege in her complaint that “other parts of [her] automobile ... were damaged by the defective transmission,” (Appellant’s Amended Complaint ¶ 8), we decline to make such an inference. Reviewing both how the defects manifested themselves in the instant case and the nature of the harms caused by such defects, we cannot reasonably infer that the allegedly defective transmission was unsafe. In any event, we are bound by Industrial Uniform.


source: Caselaw Access Project

author: BROSKY, Judge: TAMILIA, Judge, McEWEN, Judge,

license: Public Domain

text:
    502 A.2d 1324
    COMMONWEALTH of Pennsylvania v. Donald BYERS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1984.
    Filed Jan. 3, 1986.

      Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.

      Melinda Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, TAMILIA and JOHNSON, JJ.
   BROSKY, Judge:

This appeal is from the judgment of sentence imposed after a jury found appellant guilty of unlawful restraint and criminal conspiracy. Appellant argues that trial counsel, who is from the same public defender’s office as appellate counsel, was ineffective in failing to brief post-verdict motions. We find that counsel’s ineffectiveness is not apparent on the record and, therefore, we vacate the judgment of sentence and remand for appointment of new counsel and for consideration of any claims of ineffective assistance raised by new counsel.

Appellant was tried by a jury and, on September 16, 1980, was found guilty of the charges noted above. The Office of the Public Defender of Allegheny County represented appellant at trial and filed post-verdict motions, which the trial court denied on December 4, 1980, by an order stating: “[AJfter due consideration of oral argument and briefs filed, motion for New Trial and Arrest of Judgment is denied.” In the opinion filed in support of this order, the trial court summarizes the evidence presented at trial, but does not express its view on the sufficiency of the evidence; instead the court states: “[CJounsel did not submit a written brief on the errors allegedly committed by the Court____ [T]he trial Court not having the benefit of counsel’s legal theory underlying the assertion of error can thus consider the claim abandoned.” The Office of the Public Defender of Allegheny County filed a notice of appeal from the judgment of sentence, and this court denied counsel’s petition for leave to withdraw.

Counsel’s general, rather than specific, post-verdict motions challenging the sufficiency of the evidence did not in themselves waive the issue of sufficiency for the trial court’s review, since the motions were filed before this court’s opinion in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). However, issues preserved by post-verdict motions will still be deemed waived if they are neither briefed nor argued to the trial court. See Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); Commonwealth v. Williams, 476 Pa. 557, 570, 383 A.2d 503, 509 (1978); Commonwealth v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370 (1983). It was pursuant to this rule that the trial court declined in its opinion to address the issue of sufficiency. As a result, as the Supreme Court noted in Holzer, supra, when it found itself in the same situation: “[T]his Court has been deprived of the lower court’s analysis and resolution of those issues, review of which would frustrate the policies underlying Blair?[]” Id. 480 Pa. at 101, 389 A.2d at 105.

We recognize that the trial court’s order states that it was entered after “oral argument and briefs filed”, and that this is inconsistent with the statement in the trial court’s opinion that “counsel did not submit a written brief” and that the court “[did] not hav[e] the benefit of counsel’s legal theory____” Nevertheless, since counsel failed to make a copy of his brief or a transcript of the proceedings part of the record, we are unable to determine what issues counsel argued, and the issues raised in the post-verdict motions must therefore be deemed waived. Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173, cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979).

However, appellate counsel, who is from the same office as trial counsel, argues that trial counsel was ineffective for failing to preserve the issue of the sufficiency of the evidence. It is settled that when trial counsel and appellate counsel are from the same defender’s office, and the argument on appeal is that trial counsel was ineffective, we must remand for the appointment of new counsel before we may reject the ineffectiveness claim. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). This rule has most recently been applied by this court in Commonwealth v. Serianni, 337 Pa.Super. 309, 486 A.2d 1349 (1984) (allocatur denied, July 24, 1985) (en banc). The only exception to this rule is that stated in Commonwealth v. Fox, supra:

While this court will entertain a claim of ineffective assistance of counsel on appeal by the same attorney who served as trial counsel if reversible error is apparent on the record before us, we will not reject such a claim without a remand for appointment of new counsel.

Id. 476 Pa. at 479, 383 A.2d at 201.

Thus, we must examine whether reversible error is apparent on the record before us. In order to find reversible error in the context of a claim of ineffective assistance of counsel we must conclude that: (1) the underlying issue is of arguable merit; (2) counsel had no reasonable basis for his actions; and (3) counsel’s actions were prejudicial to the defendant. See Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985) (en banc); Commonwealth v. Larkins, 340 Pa.Super. 56; 489 A.2d 837 (1985).

Our Supreme Court in Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980), stated that if counsel fails to raise an issue in post-verdict motions he is deemed to be ineffective only if the issue is of arguable merit. We believe this holding is equally applicable to a case in which counsel fails to preserve an issue by briefing it for or arguing it to the post-verdict court on the record. Thus, here, a necessary (although not sufficient) condition to finding that reversible error is apparent on record is that the arguable merit of the appellant’s claims regarding the sufficiency of the evidence be apparent on the record.

It is sufficient for our purposes here to simply note that we have thoroughly reviewed the record and arguments of counsel, and conclude that the arguable merit of the claims that trial counsel failed to preserve regarding the sufficiency of the evidence is not apparent from the record before us. We must, therefore, also conclude that reversible error is not apparent from this record.

However, since “we cannot rely on counsel to be a zealous proponent of his or her own ineffectiveness,” Serianni, supra, 337 Pa.Superior Ct. at 314, 486 A.2d at 1351, we will not find that trial counsel’s self-made claim of ineffectiveness is, in fact, without arguable merit without a remand for appointment of and zealous argument by new counsel. Such a remand will allow new counsel not only to argue the claim that trial counsel was ineffective for failing to preserve issues regarding sufficiency of the evidence, but also any other potential claims of ineffective assistance of counsel which might have been overlooked by self-serving counsel. See Serianni, supra. Thus, the purpose of judicial economy will be served by allowing all possible claims of ineffective assistance to be presented at once and in the first instance to the lower court. Id

Accordingly, the judgment of sentence is vacated and the case is remanded to the trial court for appointment of new counsel for appellant other than counsel from the public defender’s office. After such appointment, the trial court shall hold an evidentiary hearing at which it shall determine the merits of the claim of ineffectiveness raised in this appeal and any other claims of trial counsel’s ineffectiveness raised by new counsel. If it is determined that trial counsel was ineffective, the trial court shall grant appropriate relief. If trial counsel is determined not to have been ineffective, the trial court shall reinstate the judgment of sentence. Either party may then appeal from an adverse order of the trial court.

So ordered; jurisdiction is not retained.

TAMILIA, J., files a dissenting opinion which is joined by ROWLEY and McEWEN, JJ.

McEWEN, J., files a dissenting statement.

TAMILIA, Judge,

dissenting:

I respectfully dissent to the rationale used by my colleagues in remanding this case for an evidentiary hearing.

The issue now before us is whether we may adjudicate trial counsel’s ineffectiveness without a remand to the lower court for appointment of new counsel, where the question is raised on appeal by trial counsel’s associate.

The denigration of counsel’s performance at trial stems from his failure to clarify with particularity his allegation of insufficiency of the evidence to support the verdict, and his subsequent failure to argue or brief that issue, causing the lower court to consider it waived. Since both trial and appellate counsel are members of the public defender’s office, withdrawal on grounds of conflict was sought and denied and appellant now prays for remand and appointment of new counsel by way of relief.

Prior to determining the scope of our inquiry on the ineffectiveness issue, however, we must direct our attention to the threshold question of whether the effect of counsel’s acts of omission has been, as he contends, to waive the claim of evidentiary insufficiency on appeal.

Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) supplied a definitive answer to the questions of how and whether boilerplate motions, such as the one under scrutiny here, stating only that “The evidence was insufficient to support the verdict,” preserve the issue for appeal. Until then applicable case law served only to further obfuscate the obscure. On the one hand, boilerplate post-trial motions have been clearly disapproved; on the other, a boilerplate post-trial motion in arrest of judgment, alleging that the evidence is insufficient to sustain the verdict, has been deemed to preserve for appeal a general challenge to the sufficiency of the evidence, at least until the effective date of Holmes. See, Commonwealth v. Cardona, 316 Pa.Super. 381, 463 A.2d 11 (1983). Since this is substantially later than the filing date of appellant’s post-trial motions, I would agree with the Commonwealth’s contention that trial counsel’s failure to submit a brief on his boilerplate post-trial motions did not serve as a waiver of appellant’s right to raise a general sufficiency issue before this Court. Concomitantly, counsel himself is not ineffective, except for failing to brief or argue the motion.

In the majority Opinion much is made of the fact that the issue was waived for not having been briefed. In detailing the evidence, the court in effect made its findings as to what the credible evidence was. Those findings, if supported by the record, establish, for our review purposes, whether or not the evidence was sufficient. The majority cites Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978), Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979) cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979) and Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978) (issues not preserved by post-trial motions, arguments or briefs are deemed waived). I would note that except for Holzer these cases do not involve claims as to the sufficiency of the evidence, which until Holmes, supra, were not deemed waived, at least by this Court. Holzer is inapplicable as a review of sufficiency of evidence is required in first degree murder cases, whether the issue is raised or not. To ignore Holmes, as the majority would have us do, undermines the credibility of this Court and the numerous cases we have decided on its authority. Holmes, because of considerable confusion as to the application of the rule against boilerplate motions, ruled they were to be considered effective until 60 days from the date of decision, June 10, 1983. In light of the Supreme Court’s recent decision in Commonwealth v. Tomasso, 506 Pa. 344, 485 A.2d 395 (1984), (Superior Court may not consider issues waived if presented in accordance with an applicable rule in the court below), we cannot ignore Holmes and Tomasso. Appellant counsel, believing that the sufficiency claim is not subject to review on direct appeal, nevertheless seeks to advance the same claim under the guise of ineffective assistance of counsel. While recognizing that there was no reversible error apparent on the record, the majority which accepts the application of Holmes, would reject a review because of appellant’s failure to file a brief under its misreading of Holzer, which Holmes precludes.

By not considering the ineffectiveness issue now, and the merits of the alleged or forthcoming grounds for an ineffectiveness claim, we are assuring and placing our imprimatur on the continuing excessiveness of such claims. The result of the majority assures litigation on ineffectiveness of trial counsel, ineffectiveness of appellate counsel, and whether or not the record is complete. Also, there must be a remand for appointment of new counsel since appellate counsel is from the same public defender’s office as trial counsel. I would resolve these issues at this time as the state of the record and the state of the law permits such a resolution. It would appear to me to be immaterial that the issue was not preserved by brief when it was adequately preserved by post-trial motions. When trial counsel filed his boilerplate motions, despite failure to brief the motions, the latter ineffectiveness did not invalidate the then properly filed motion as to insufficiency of the evidence. In either case, the issue is reviewable by this Court if the record is sufficient to permit an adequate review. My strong and unequivocal protest lies to the pointless refusal to resolve matters before us on their merits, when the record is complete, while inviting the appellant who alleges ineffectiveness, because of a technical and meaningless procedural error, to start anew in the court below with a PCHA and its assured appeal to this Court, to resolve the issue that is presently before us. Because of the extraordinary circumstances of the ineffectiveness claim, and the inability of our procedures or the courts to control its use by counsel, we should pass on the merits of the faulty motion, if the record permits it. The principles of judicial economy and finality of judgment require it.

To further compound the confusion and questionable validity of lower court review in a PCHA proceeding as suggested by the majority, it will result in consideration by a trial judge who has less knowledge of this case than the en banc panel of this Court. The jury trial judge in this case was our esteemed colleague, Judge Zoran Popovich, who heard the case and properly denied the post-trial motions, subsequently being elevated to this Court before he had an opportunity to conclude all matter relevant to the post-trial proceedings. Judge Thomas Harper, now deceased, filed the Opinion in support of denial of the post-trial motions. The sentencing judge was Judge Robert Dauer, who heard and denied motions to modify sentence.

Under these circumstances, I would adopt the position of Commonwealth v. Lohr, 503 Pa. 130, 139, 468 A.2d 1375, 1379 (1983), “[Njotwithstanding counsel’s dereliction, any relief this court might extend to appellant would be merely duplicitous of the instant review and, thus, consistent with principles of judicial economy, we decline the'opportunity to remand for proceedings consistent with (Commonwealth v.) McClendon. (495 Pa. 467, 434 A.2d 1185 (1981).)”

The time pf the trial courts and appellate courts constitutes one of the most precious and limited commodities of our democracy. There must be a more judicious use of this time if we are to serve the ends of justice rather than take on the appearance of a court out of Alice in Wonderland or permit the endless litigation typified by Jarndyce v. Jarndyce in Bleak House (Dickens). The cost to the government and the taxpayers and the appearance of futility to the victim and the public warrants a more restrictive view of the ineffectiveness issue and elimination of expenditure of additional resources for independent counsel when a public defender is charged with ineffectiveness.

Therefore, I would, on the basis of the unembellished record, proceed to address appellant’s claim on its merits.

The test for sufficiency of the evidence in a criminal case is whether, viewing all the evidence in the light most favorable to the Commonwealth and drawing all reasonable conclusions therefrom, it is sufficient to enable the trier of fact to find every element of the crimes charged beyond a reasonable doubt. Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316 (1983).

Viewed against this standard, the testimony at trial established that on the evening of March 23, 1980 the teenage victim had substituted for her sister in babysitting at the house of a young neighbor whose residence was itself the scene of some social activity. After a number of people had arrived and left, the victim and four young men, including appellant, were left sitting at the diningroom table.

One of the men asked the victim what she would do if they raped her. He then picked her up and carried her into the bedroom and asked her to engage in sexual relations. The victim refused. Shortly thereafter, the other three entered the bedroom and the victim was pushed to the bed and held there, her breasts being fondled and pinched. During this time, appellant held the victims arms and two other men held her legs while a fourth pulled down her jeans. One man left when the phone rang and another followed. The victim was then raped by a third man while appellant restrained her and watched. She was released when, and because, the occupant of the house had returned home.

The commission of unlawful restraint occurs when a person “restrains another unlawfully in circumstances exposing him to risk of serious bodily injury.” Clearly forcible rape presents the possibility of serious bodily injury to the victim. With respect to the conspiracy charge, appellant’s actions in following the victim to the bedroom, holding her down while she was abusively handled and continuing to do so while she was raped, brooks no argument against conspiracy, however silent appellant’s participation and cooperation in commission of the substantive offense. See Commonwealth v. Henderson, 249 Pa.Super. 472, 378 A.2d 393 (1977).

In sum, at the time of its filing, counsel’s boilerplate motion in arrest of judgment was sufficient to preserve for appeal a general claim of insufficiency of the evidence. The failure of counsel to argue or brief that issue does not nullify its effect for review purposes. It is the only issue that could have been preserved for appeal, even if counsel is deemed ineffective for failure to argue or brief the issue. Even should we hold that counsel was ineffective, I believe the Supreme Court in Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982) and Lohr, supra has clearly provided guidance to us permitting an independent review of the record if the record provides an adequate basis for such a review. See Commonwealth v. Serianni, 337 Pa.Super. 309, 486 A.2d 1349 (1984) (Dissenting Opinion by Tamilia, J.). Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052, 52 U.S.L.W. 4565 (1984) and cited favorably in Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984); also cited favorably and quoted extensively in Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984). My review of the record convinces me there was no prejudicial error. The record in this case is complete and provides an adequate basis for review of the motion as to the insufficiency of the evidence. The majority agrees that this is the only appealable issue, even though it would not pass on it. It would remand for appointment of new and “zealous counsel” who might discover other potential claims of ineffectiveness overlooked by previous counsel. Here we were presented with new appellate counsel, albeit from the same Public Defender’s office. There is no evidence of a lack of zeal or independence, and we acknowledge both in the majority and dissent that he raised the only issue that presented itself on the record. The motion was totally without legal merit. This comes to us as an ineffectiveness of counsel issue, and whether resolved now or later, the issue must be resolved. To resolve it now when the record is complete will save judicial time at both the trial and appellate levels. The PCHA procedure was designed to reach those issues which could not or would not be reviewed in the normal appellate process, thus calling for Habeas Corpus or Federal Court intervention. We should not shirk from resolution of an otherwise justiciable PCHA issue because it has not been brought to us under that ruberic. An issue rejected on direct appeal has been finally litigated and would not be addressed on appeal from denial of relief under the Post-Conviction Hearing Act. Commonwealth v. Jones, 324 Pa.Super. 359, 471 A.2d 879 (1984).

I would find appellate counsel competent to represent appellant, dismiss the ineffectiveness of counsel claim and affirm the judgment of sentence.

ROWLEY and McEWEN, JJ., join in Judge TAMILIA’s dissenting opinion.

McEWEN, Judge,

dissenting:

Serianni strikes again! This time, Serianni has confined several of our most distinguished members to the confounding chamber of anomaly as the majority here concludes that the record reflects neither ineffectiveness nor reversible error but, nonetheless, remands to see if new counsel and the trial court can unearth such error. Serian ni, having wrought such consternation, is without favorable feature or redeeming vice, and should be overturned.

      . Although these cases do not apply this principle specifically to the issue of sufficiency of the evidence, we see no reason why an issue of sufficiency of the evidence should be an exception to the general rule established by these cases that issues preserved by post-verdict motions must also be briefed or argued in order to preserve them for appeal.

      . Commonwealth v. Blair, 463 Pa. 383, 344 A.2d 884 (1975) (issues not included in post-verdict motions are deemed waived).

      . It should be noted that in addition to raising claims regarding the sufficiency of the evidence, appellant’s post-verdict motions also allege that the trial court erred in admitting certain evidence, in denying certain motions during trial, and in its charge to the jury. Appellant has not pressed these claims on appeal.

      . We believe it appropriate to note here the comments made by this Court in Commonwealth v. Smoyer, 281 Pa.Super. 320, 422 A.2d 189 (1980) (Cavanaugh, J.):
      We do not condone the practice of counsel from the public defender’s office raising the effective assistance of counsel where trial counsel is a different attorney from the same public defender's office. If a genuine issue of the effectiveness of trial counsel exists, then the public defender should request the trial court to appoint appellate counsel who is not a member of the public defender’s office. The allegation of ineffective assistance of counsel is tantamount to an allegation of incompetency on the part of counsel____ The best interest of an appellant is not served where his counsel must establish that an associate from his office acted in an incompetent manner at trial.

        Id., 281 Pa.Superior Ct. at 323, 422 A.2d at 190 (emphasis added).
      "The better practice is for counsel to remove himself and permit different counsel to develop a record on the ineffectiveness issue before the case is removed from the trial court’s jurisdiction by virtue of the filing of a notice of appeal.” Commonwealth v. Smith, 321 Pa.Super. 170, 202 n. 25, 467 A.2d 1307, 1324 n. 25 (1983) (Rowley, J.).

      . In Serianni, trial counsel claimed that he had been ineffective for failing to preserve two issues by including them in post-verdict motions. There, we also found that reversible error was not apparent on the record, although we did not specify which of the three requirements for finding reversible error was not apparent on the record. We do note that even if arguable merit is apparent on the record, a remand for appointment of new counsel and an evidentiary hearing is still the proper procedure if it is not apparent from the record that counsel had no reasonable basis for his actions. See Commonwealth v. Gray, 329 Pa.Super. 347, 478 A.2d 822 (1984) (Johnson, J.).

      . The dissent is apparently attempting to establish two points: (1) the issue of the sufficiency of the evidence has not been waived; and (2) even if the issue has been waived, we may reject appellant’s ineffective assistance claim. As to both points, we fear the dissent's quarrel is not with us, but with the decisions of our Supreme Court.
      The dissent's first point is based on a fundamental misunderstanding of Holmes, supra. We have not ignored Holmes as the dissent claims; it is simply not applicable to this case except to the extent that under Holmes the sufficiency issue was not waived by a boilerplate post-trial motion in arrest of judgment. However, our Supreme Court has held that an issue will not be preserved for appeal unless in addition to filing proper post-verdict motions a defendant briefs or argues the issue to the trial court. See Holzer, supra; Williapts, supra; Pittmann, supra. Holmes does not speak to these two additional requirements for preserving an issue for appeal, but holds only that in regard to an issue of sufficiency, the first requirement is satisfied by a boilerplate motion prior to Holmes effective date.
      The dissent’s second point, that we should reject the claim of ineffective assistance, is in conflict with the mandate of our Supreme Court that we may not reject a self-made claim of ineffective assistance of counsel without a remand for appointment of new counsel. See Fox, supra. While the dissent may feel competent to review the record without the certainty of zealous argument by new counsel, our Supreme Court has held that it may not do so. This conclusion is further buttressed by our Supreme Court’s denial of allocatur in Serianni, supra., in which the dissent advanced a similar argument.

      . As of the effective date, August 9, 1983, challenges to the sufficiency of the evidence must specify the nature of the insufficiency or the issue will be waived.

      . Although it was filed nunc pro tunc, it was considered and ruled on by the trial court.

      . Of those present, one young man was a tenant of the house, a roommate of the woman for whose child the victim was babysitting.

      . 18 Pa.C.S.A. § 2902(1).


author: CIRILLO, Judge:

text:
    502 A.2d 1332
    COMMONWEALTH of Pennsylvania, Appellant, v. Harold A. REHMEYER.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1985.
    Filed Dec. 20, 1985.

      Thomas L. Kearney, Assistant District Attorney, York, for Com., appellant.

      Gerald E. Ruth, York, for appellee.
    Before WICKERSHAM, CIRILLO, and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal by the Commonwealth from an order of the Court of Common Pleas of York County granting a motion to suppress evidence in favor of appellee, Harold Rehmeyer. We reverse.

At approximately 2:00 a.m., on November 19, 1983, Officer Perelman of the York City Police witnessed appellee, Harold Rehmeyer, drive through a red light. Perelman stopped appellee and detected the odor of alcohol on appellee’s breath. Perelman had probable cause to believe that Rehmeyer was driving a vehicle while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1). However, because the officer believed the case was borderline, Perelman decided not to arrest Rehmeyer. Instead, the officer suggested that Rehmeyer either call his home and get a ride from someone in his family or accept a ride from the officer in the patrol car. Rehmeyer refused the first option but accepted the latter. However, before allowing Rehmeyer to enter the patrol car, Perelman advised appellee that he would have to undergo a pat-down search. The officer proceeded to execute a limited pat-down search of Rehmeyer for the purpose of discovering any concealed weapons. Perelman conducted this search to insure that Rehmeyer would pose no danger to the officer during the trip to Rehmeyer’s home. During the search, Perelman discovered a .22 caliber pistol. Rehmeyer was then charged with violating the Uniform Firearms Act.

The sole issue on appeal is whether the trial court erred in granting the motion to suppress. The decision of the trial court will only be upheld if the record supports the factual findings of the court and the legal conclusions drawn from those findings. Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977); Commonwealth v. Carter, 334 Pa.Super. 369, 483 A.2d 495 (1984).

In deciding this issue, the dispositive question is whether a police officer who properly proposes to take a citizen home in his patrol car can subject that citizen to a pat-down search for weapons where there is no reason to believe he is armed and the individual is not under arrest though the officer has probable case to arrest. We hold that an officer may conduct a limited pat-down search for weapons in such a situation.

“A search is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment.” J.W. Hall, Search and Seizures, § 10:3 (1982). These intrusions upon an individual’s constitutionally guaranteed rights must be based on either a probable cause to arrest or a policeman’s reasonable suspicion that the individual with whom he is dealing is armed and dangerous. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). Accord Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).

The trial court held that because Rehmeyer was not placed under arrest, the officer had to be operating under a reasonable belief that appellee was armed and dangerous before conducting the pat-down search. This conclusion is not compelled by Terry and we cannot accept it as valid. It is in direct contradiction to the language of Terry which provides that “a search for weapons in the absence of probable cause to arrest ... must, like any other search, be strictly circumscribed by the exigencies which justify its initiation.” Terry, 392 U.S. at 25-26, 88 S.Ct. at 1882 (emphasis added).

Only in those situations where the officer lacks probable cause to arrest must he reasonábly suspect that the individual with whom he is dealing is armed before conducting a legitimate protective search. The Terry Court framed the issue as a question of “whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause to arrest.” Terry, 392 U.S. at 15, 88 S.Ct. at 1877. Clearly, Terry supports the proposition that where probable cause to arrest exists, regardless of the officer’s decision not to arrest, a search is proper.

Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), is the seminal Pennsylvania case on the limits of permissible searches. Hicks states that “a search and seizure ... is reasonable and legitimate if the police officer has probable cause to arrest.” Hicks, supra, 434 Pa. at 158, 253 A.2d at 279. Nowhere does Hicks qualify or limit the right of an officer to search where he has probable cause to arrest to those situations where the officer effectuates the arrest. For our Court to now so limit or qualify this right would be unreasonable. It would force us to read into Hicks and Terry a requirement that is patently not present in those cases. The rational behind the Hicks decision is to protect citizens from unreasonable searches and seizures in precisely those situations where the officer has no probable cause to arrest nor observes any unusual or suspicious conduct on the part of the individual seized leading the officer to reasonably believe that criminal activity is afoot and that the person with whom he is dealing may be armed and dangerous. Hicks, supra, 434 Pa. at 159, 253 A.2d at 279. Accord Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Neither of these situations is applicable to the case sub judice. Hicks held that an officer has probable cause to arrest “if at the inception of the seizure he has knowledge of sufficient facts and circumstances, gained through trustworthy information, to warrant a prudent man in the belief that the person seized has committed, is committing or is about to commit a crime.” Hicks, supra, 434 Pa. at 158, 253 A.2d at 279.

Appellee correctly argues that police officers have no right to search either the automobile or the occupants when a stop is made for an ordinary traffic offense. Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970). However, it is obvious Perelman had probable cause to arrest Rehmeyer for drunk driving. Perelman saw appellee run a red light, then, after stopping appellee, the officer noticed the heavy smell of alcohol on Rehmeyer’s breath and the difficulty with which Rehmeyer completed the simple task of locating his driver’s license. These facts would lead a prudent man to believe that appellee was driving under the influence in contravention of state law. Perelman’s resolution not to arrest appellee in no way lessens the probable cause upon which Perelman could have based an arrest. Based on these facts, Perelman’s authority to arrest Rehmeyer stemmed not from appellee’s failure to stop for a red light but rather Rehmeyer’s alleged violation of 75 Pa.C.S. § 3731 (driving under the influence) which gives an investigating officer authority to arrest.

Appellee’s reliance on Commonwealth v. Sams, 465 Pa. 323, 350 A.2d 788 (1976); Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970); Commonwealth v. Hicks, supra, is misplaced. In these cases, the Supreme Court concluded that the officers lacked probable cause and could not have reasonably believed the seized individuals were armed and dangerous; therefore, the Court held the searches illegal. The case sub judice is easily distinguishable in that Perelman clearly had probable cause to arrest Rehmeyer.

We hold that if probable cause to arrest exists, but the officer does not effectuate the arrest, the officer may nevertheless conduct a protective pat-down search when he decides to transport the individual in the patrol car. United States v. Ricard, 563 F.2d 45 (2d Cir.1977). Accord People v. Otto, 91 Mich.App. 444, 284 N.W.2d 273 (1979). The Court in Ricard held that “the fact that [the officer] had cause to arrest appellant for speeding, even if he initially determined not to do so, was a sufficient predicate for a full search.” Ricard, 563 F.2d at 49. Accord United States v. Jenkins, 496 F.2d 57, 72-73 (2d Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975). Jenkins stated that

the mere fact that the trooper reversed the procedure, conducting the search before the arrest, did not render it illegal as long as probable cause to arrest existed at the time of search ... Any other holding would, without rational basis, exalt form over substance.

Jenkins, 496 F.2d at 73.

The officer in this case acted swiftly, justly, and with compassion. Perelman’s offer to transport appellee to his home was a truly laudable act. It served “to shiel[d] appellee from criminal punishment and preven[t] harm to innocent parties.” Commonwealth v. Bedsaul, 298 Pa.Super. 174, 177, 444 A.2d 717, 718 (1982). Such competent and effective police work should be praised and supported by the courts and not discouraged through dissection and reversal.

Determination of whether the pat-down search of appellee was proper necessarily involves the issue of the reasonableness of the search. As the United States Supreme Court so eloquently stated in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), “the touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security ’.” Mimms, 434 U.S. at 108, 98 S.Ct. at 332. (Emphasis supplied) (footnotes omitted). The Supreme Court set forth the standard of reasonableness in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The Court stated that reasonableness depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Brignoni-Ponce, supra at 878, 95 S.Ct. at 2579. Accord Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

In the case sub judice, we must balance the safety of the officer against Rehmeyer’s right to be free from arbitrary searches. The Supreme Court has expressly acknowledged that the officer’s safety is a legitimate and weighty justification for the search of a properly detained individual. See e.g., Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Pennsylvania v. Mimms, supra; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1968); Terry v. Ohio, supra.

In today’s complex society, police are “charged with the protection of constitutional rights, the maintenance of order, the control of pedestrian and vehicular traffic, the mediation of domestic and other non-criminal conflicts, and supplying emergency help and assistance.” La Fave, Street Encounters and the Constitution; Terry, Sibron, Peters and Beyond, 67 Michigan L.Rev. 40, 61-62 (1968). Accord Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (police engage in community caretaking functions). If during the execution of these tasks an officer determines that “[a] reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger,” the officer may conduct a protective pat-down search. Terry, 392 U.S. at 27, 88 S.Ct. at 1883. The officer is empowered to neutralize the danger posed by the party with whom he is dealing. The search must be limited to the accomplishment of the goal which justified its commencement, namely, protection of the officer. The officer’s action must be confined to a pat-down search for the discovery of weapons. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

Surely, Officer Perelman’s patting-down of appellee fell squarely within the requirements set out above. Though Rehmeyer had not shown any signs of violence, Perelman acted reasonably in assuming that appellee could possibly enter the patrol car with a deadly weapon. Once behind the wheel of the patrol car, Perelman would be an easy mark. A reasonably prudent man in the same situation would believe that his safety was in jeopardy. “It [is] unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry, supra, 392 U.S. at 23, 88 S.Ct. at 1881.

In assuming that Rehmeyer may have a concealed weapon, Perelman was not acting on an “inchoate [or] unarticularized suspicion or hunch” but rather on “the specific reasonable inferences which he [was] entitled to draw from the facts in light of his experience.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883. Cf. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Accord Commonwealth v. O’Neal, 321 Pa.Super. 323, 468 A.2d 500 (1983).

Although Pennsylvania case law does not address directly the question of whether a police officer is justified in conducting a search in the present situation, Commonwealth v. Bedsaul, 298 Pa.Super. 174, 444 A.2d 717 (1982) is quite similar. The defendant, Bedsaul, entered a college women’s dormitory without authority, invitation or privilege in an intoxicated condition causing great apprehension among the women living in the dorm. The officers decided not to arrest Bedsaul but instead agreed to drive him to his home. Before allowing Bedsaul to enter the patrol car, the officers patted his outer clothing. The pat-down led to the discovery of a small plastic vial containing pills and a hypodermic syringe.

This Court held that the pills and syringe were not taken from Bedsaul in violation of his Fourth Amendment rights and were therefore admissible. The Bedsaul Court considered various factors in holding that the search was permissible: defendant was found in the rear of a woman’s dormitory in a stupefied condition, his presence was feared by the young women and defendant had no reason to be in the building. While none of these factors individually would support a search, taken together the court concluded that “[the officer] acted reasonably when assuming that [Bedsaul] may well have entered the patrol car with a concealed deadly weapon.” Bedsaul, supra, 298 Pa.Superior Ct. at 177, 444 A.2d at 718.

Other jurisdictions have been confronted with similar case situations. In the case sub judice, the trial court echoed the analysis of the California Supreme Court in People v. Scott, 16 Cal.3d 242, 128 Cal.Rptr. 39, 546 P.2d 327 (1976). In Scott, officers stopped a man and his son as they stood near the entrance ramp to a freeway. Although the man appeared intoxicated, the officers decided not to arrest him. The officers offered to transport the pair to San Francisco but before allowing the father to enter the patrol car, a pat-down search was, conducted. The search disclosed a bag of marijuana in his pocket. The Court held that the search was illegal because the officer circumscribed the Terry requirement that a pat-down search may only be conducted when the officer reasonably suspects that the individual is armed.

The majority opinion in Scott totally ignored the concept of a legitimate frisk based on probable cause to arrest. See People v. Scott, supra (Richardson, J., Dissenting Opinion). The Court looked only to whether the officer had reason to believe that Scott was armed and dangerous. The presence of the defendant’s young son drastically decreased the possibility of an armed confrontation with police initiated by the defendant. Finally, the search revealed a small bag of marijuana. Such a soft pliable substance could not reasonably be mistaken for a weapon. We find the facts of the present case are distinguishable on these points.

Unlike the trial court, we find the Michigan case of People v. Otto, 91 Mich.App. 444, 284 N.W.2d 273 (1979) to be closely aligned with the facts of the case sub judice. In Otto, the Michigan Court upheld a search by a police officer of a hitchhiker illegally hitchhiking on an interstate highway. The officer decided to transport the hitchhiker to a freeway exit where hitchhiking was not illegal. The officer frisked the hitchhiker before allowing him to enter the patrol car and discovered an automatic pistol inside his jacket pocket.

The Michigan Court concluded that the search was reasonable under the circumstances. The Court relied on Terry and Mimms in concluding that after “looking at ‘all the circumstances of the particular governmental intrusion of [defendant’s] personal security’ ... the frisk of defendant was reasonable.” Otto, supra at 449, 284 N.W.2d at 276. (Citations omitted). Justifying this conclusion, the Court stated that “in such a situation it makes sense to remove the danger, and the resulting limited intrusion on the individual’s privacy is overcome by the public interest of protecting human life.” Otto, supra at 453, 284 N.W.2d at 277.

The Supreme Court has specifically recognized the dangers confronting a police officer during the investigation of traffic violations. Mimms, supra; Terry, supra. See also Bristori, Police Officer Shooting — A Tactical Evaluation, 54 J.Crim. LC & PS 93 (1963). This risk is exacerbated when the officer decides to transport a detained individual in his patrol car. Under the circumstances of the present case — a traffic violation stop which turned into a driving under the influence situation, early morning hours, deserted streets, appellee’s visible intoxication and incapacity to drive safely — Perelman reasonably inferred that Rehmeyer was a potential threat to his safety. This is true even though appellee appeared to be cooperative and orderly. Perelman was “not required to gamble his life by placing [appellee] in the patrol car with him without the precaution of a pat-down for weapons.” Carter v. State, 370 So.2d 1181, 1183 (Fla.Dist.Ct.App.1979).

This important governmental interest must be weighed against the intrusion into Rehmeyer’s right to be free from unreasonable searches. We find that Perelman’s protective pat-down search of appellee was a minimal intrusion. Perelman had already lawfully detained Rehmeyer and the only question was whether Perelman was going to arrest appellee for drunk driving or transport him home. Cf., Mimms, supra. Perelman “confined his search to what was minimally necessary to learn whether [Rehmeyer was] armed and to disarm [him] once he discovered the weapon.” What is at best an extremely limited, short-lived surface search cannot overcome the legitimate and substantial concern for the officer’s safety. Such a search constitutes a minimal invasion of appellee’s privacy. While transporting appellee home involved the questioned protective search, surely the alternative of arrest would constitute a greater intrusion than the pat-down. The arrest would have entitled Perelman to conduct a full search. The questioned search of appellee was limited in its scope to a pat-down of Rehmeyer’s outer clothing to determine if appellee was armed.

While we recognize that such searches may involve a certain level of embarrassment, the courts cannot operate in a vaccuum. The right to be free from unreasonable searches and seizures is a fundamental constitutionally guaranteed right. U.S. Const. Amend. IV. However, police officers must be allowed to neutralize any danger posed by citizens whom the officers have probable cause to arrest and with whom they are in close contact.

The major issue in this case is whether the trial court properly excluded the weapon discovered in Rehmeyer’s possession as a result of Perelman’s search. Therefore, we must briefly discuss the purpose of the exclusionary rule. See Amsterdam, Perspectives on The Fourth Amendment, 58 Minn.L.Rev. 349 (1974); Kaplan, The Limits of the Exclusionary Rule, 26 Stan.L.Rev. 1027 (1974). “Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct.” Terry v. Ohio, supra, 392 U.S. at 12, 88 S.Ct. at 1875. Accord Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The rule must be used by the courts “to guard against police conduct which is overbearing or harassing, or which trenches upon personal security.” Terry 392 U.S. at 15, 88 S.Ct. at 1876.

Examining the facts of this case, it becomes clear that the rule, as defined, is not applicable. Perelman did not act in an overbearing manner nor was he harassing Rehmeyer. Perelman’s conduct was based on his reasonable belief that there was a substantial possibility Rehmeyer possessed items which could be used to attack Perelman within the confines of the patrol car. In frisking appellee, Perelman was not conducting a “fishing expedition” hoping to discover evidence to be used against Rehmeyer. Perelman feared that appellee could be armed and he confined his search to the level which was necessary to confirm or dispel that fear.

We are unable to classify Perelman’s conduct as “lawless”. Therefore, we cannot hold that the evidence seized as a result of such conduct should be suppressed. The police officer’s objective was not the prosecution of a crime but to insure his own safety. Perelman’s search was fully justified by the probable cause to arrest for driving under the influence and his reasonable suspicion that appellee could be potentially dangerous.

We find that where an officer has probable cause to arrest but chooses to transport the individual in the officer’s patrol car to the individual’s chosen destination, the officer may conduct a limited pat-down search.for weapons. The justification for this search must be so limited in its scope. The limited intrusion on the individual’s right to privacy is outweighed by the government and society’s interest in protecting the lives of their police officers.

Reversed and remanded. Jurisdiction is relinquished.

      . This section provides that: "a person shall not drive, operate or be in actual physical control of the movement of any vehicle while: (1) under the influence of alcohol to a degree which renders the person incapable of safe driving." 75 Pa.C.S. § 3731(a)(1).

      . Section 3731(c) provides that: "in addition to any other powers of arrest, a police officer is hereby authorized to arrest without a warrant any person who the officer has probable cause to believe has violated the provisions of this section.” Id.

      . Act of December 6, 1972, P.L. 1482, 18 P.S. § 6101 et seq.


author: MONTEMURO, Judge:

text:
    502 A.2d 1339
    COMMONWEALTH of Pennsylvania, Appellant, v. Derrick DAYS, Appellee.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1985.
    Filed Jan. 10, 1986.

      Rona S. Totoki, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Barbara L. Charles, Philadelphia, for appellee.
    Before McEWEN, MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

In August, 1984, appellee Derrick Days was convicted in a non-jury trial of kidnapping, unlawful restraint, robbery, theft by taking and possessing instruments of crime. Appellee’s timely filed post-verdict motions for a new trial and in arrest of judgment were denied.

At the sentencing hearing, the Commonwealth requested that appellee receive a sentence of incarceration and stated to the trial court that eighteen (18) months was the bottom of the mitigated guideline range and that there was nothing to mitigate the offense.

The trial court, while agreeing that the offense was not mitigated, sentenced appellee as follows:

On the Criminal Information charging Robbery —“Time-in” (approximately eight (8) months) to twenty-three (23) months imprisonment;
On the Criminal Information charging Kidnapping —One (1) year probation to run concurrent with the sentence on the robbery conviction and further appellee was forbidden from employment which involved working with children;
On the Criminal Information charging Possessing Instruments of Crime Generally —One (1) year probation to run concurrent with the sentence on the robbery conviction; and
On the Criminal Information charging Theft by Unlawful Taking or Disposition — One (1) year probation to run concurrent with the sentence on the robbery conviction.

The Commonwealth filed a petition for reconsideration of sentence, which was denied without a hearing. This appeal followed.

The Commonwealth claims that the trial court “failed to sufficiently consider the totality of the circumstances in sentencing defendant to the unreasonably lenient sentence imposed, and therefore impermissibly and unreasonably deviated from the guidelines promulgated by the Pennsylvania Commission on Sentencing.” (Commonwealth’s Brief at 3). Since we agree, the judgment of sentence is vacated and the case remanded for resentencing consistent with this opinion.

The facts which led to appellee’s arrest and conviction were accurately summarized by the trial court as follows:

On April 17,1984, Donald Martin, the complainant, was selling newspapers at the corner of 34th Street and Grays Ferry Avenue in Philadelphia. Around 1 p.m., Days, who was driving a yellow cab, stopped at 34th and Grays Ferry and signaled that he wanted to buy a newspaper. Martin approached the cab on the passenger side to hand Days the paper. As Martin reached into the cab to collect his fee, Days grabbed Martin’s arm and told him to get into the cab. With his other hand, Days pointed a gun at Martin. Martin, who was carrying his stack of newspapers, obeyed. Days drove Martin around the city for two to three hours, holding the gun on him the entire time.
Days told Martin to give him the newsboy’s apron, which Martin was wearing. Martin placed the apron on the floor of the cab. It contained the day’s receipts, about $80. Martin kept asking Days where he was being taken. Days repeatedly told him to shut-up or be quiet.
When Days stopped for a red light about two blocks from Broad and Erie Streets, Martin threw the newspapers at him and jumped out of the cab. Martin ran around the corner and crouched behind a car, until he saw Days drive past. When he believed himself to be out of danger, Martin came out of hiding and walked home to West Philadelphia. When he arrived home an hour later, Martin told his parents what had happened. Martin was crying and had an upset stomach.
The next afternoon, Martin, accompanied by his father and two police officers, went to the cab company to observe the drivers. They waited from 5 p.m. to 9 p.m. but Martin did not see the person who robbed him. The police gave him a phone number and instructed him to call if he saw the man again.
The very next day, April 19, 1984, Martin was [on] the cab company premises selling papers from office to office. He saw Days, immediately recognized him, left the building and called the police. When the police arrived, Martin accompanied them to the office and identified Days who was then placed under arrest.

(Slip op. at 1-2).

Although the Commonwealth, in seeking to appeal from the discretionary aspects of the sentence imposed in this case, properly initiated the appeal by the filing of a notice as required by Pa.R.A.P. 902, before proceeding to the merits of the issue raised herein, we must first determine whether or not there is a substantial question that the sentence imposed is not appropriate under the Sentencing Guidelines. Commonwealth v. Drumgoole, 341 Pa.Super. 468, 473, 491 A.2d 1352, 1354 (1985); Commonwealth v. Fluellen, 345 Pa.Super. 167, 169-170, 497 A.2d 1357, 1358 (1985). Since our review of the record convinces us that a substantial question exists in this case, we will permit the Commonwealth’s appeal.

The computation for the Guidelines’ sentence in this case is not in dispute. Since appellee has no prior conviction,' his prior arrest score under the Guidelines was zero. 204 Pa.Code § 303.7. The offense gravity score for kidnapping, the most serious offense for which appellee was convicted, was eight. 204 Pa.Code 303.8. Therefore, the correct sentence range under the Guidelines for the kidnapping conviction, 204 Pa.Code 303.9(b), is:

Minimum Range — 24 to 48 months imprisonment

Aggravated Minimum Range — , 48 to 60 months imprisonment

Mitigated Minimum Range — 18 to 24 months imprisonment

Thus, it is clear that appellee’s sentence of probation on the charge of kidnapping was outside the Guidelines.

The legislature has provided that the appellate court, in reviewing the discretionary aspects of a sentence on appeal shall affirm the trial court's sentence unless it finds: (1) that the guidelines were erroneously applied; (2) that the sentence, even though within the guidelines, is ‘clearly unreasonable’; or (3) that the sentence, if outside the guidelines, ‘is unreasonable.’ In any one of these three circumstances, we are required to vacate the trial court’s sentence and remand the case with instructions. 42 Pa.C.S.A. § 9781(c). In determining whether a particular sentence is ‘clearly unreasonable’ or ‘unreasonable’, the appellate court must consider the defendant’s background and characteristics as well as the particular circumstances of the offense involved, the trial court’s opportunity to observe the defendant, the pre-sentence investigation report, if any, the Sentencing Guidelines as promulgated by the Sentencing Commission, and the ‘findings’ upon which the trial court based its sentence.

Commonwealth v. Drumgoole, supra, 341 Pa.Superior Ct. at 473, 491 A.2d at 1354; see also Commonwealth v. Dixon, 344 Pa.Super. 293, 301, 496 A.2d 802, 805-6 (1985)

Our independent review of the entire record in this case and our consideration of the nature and circumstances of the offense, the history and characteristics of the appellee, the trial court’s “finding” upon which the sentence was based and the Guidelines promulgated by the Commission, compel us to conclude that the sentence was unreasonable.

We shall consider these factors ad seriatim:

1. The nature and circumstances of the offense.

The trial judge herself recognized the seriousness of appellee’s crimes when at the sentencing hearing she said:

... think about that young kid who was terrified while you were driving him around for an hour and a half, he’ll never forget that either. (RR. 56a)
... it’s a serious dreadful thing to take a youngster, and we all saw that kid who testified, and he’ll never get over that. He was scared to death, and it’s only that he’s very bright and resourceful that he managed to escape without physical injury and that he had the intelligence to go and find this defendant and prosecute, but this was an awful experience for a child and it was — it’s not a momentary aberration, heat of passion, nothing at all like that. He knew very well that this kid was the newsboy, had money and there was a plan to steal it — to steal the money from a youngster who has no way of defending himself, and I consider it a pretty miserable crime. (RR. 61a, 62a).

In addition to what the trial judge had to say about the crime, we would also note that the young victim in this case was forced into the taxi-cab by appellee at the point of a gun. (N.T. August 29, 1984, at 19), and was relieved of his money at the point of a gun. (Id. at 28).

Appellee’s sole defense was a general denial and he produced three witnesses: his mother, his brother and a close friend, all of whom testified, as he did, that they were together at the time the young victim was abducted. The trial judge found, as she had the right to do, their testimony to be both improbable and incredible.

2. The history and characteristics of the defendant.

Defense counsel advised the trial judge that appellee had no prior convictions and no record or history of any acts of violence and that his present circumstances was sort of an aberration from his normal pattern of behavior. (RR. 52a) Defense counsel stated further that appellee had always been employed, that he was involved with the YMCA, with young groups, that he had no history of mental illness, and that the presentence report does not indicate any serious problems with mental illness other than a recommendation of psychiatric counseling. (RR. 52a). The trial judge was further informed by defense counsel that appellee had been incarcerated for a little over eight (8) months and had not demonstrated any violent behavior in prison and that he himself had been the subject of two alleged attacks while incarcerated. (RR. 52a, 53a).

The appellee testified as to his sorrow about the entire incident and stated he learned a great deal by his incarceration of eight months. (RR. 53a). The appellee, in response to a question from the trial judge, testified that he had received a General Equivalency Diploma and that if put on probation, he would live with his mother. (RR. 56a). When appellee informed the trial judge that he could get his job back with the Yellow Cab Company, the trial judge said she did not think he should be a cab driver (RR. 57a). Appellee then testified that his former boss at the YMCA offered him his old position as a child supervisor; however, the trial judge said “good heavens, that’s not a good job for you either.” (RR. 57a). Appellee then said he could go back into construction and the trial judge indicated that that would be much better. (RR. 58a).

The prosecuting attorney requested a sentence of incarceration within the Sentencing Guidelines for kidnapping and offered the opinion that he questioned the sincerity of appellee’s announced remorsefulness in view of the fact that there was nothing in the pre-sentence report to explain his conduct — he was not a drug addict and he did not have any serious psychological problems. The trial judge then remarked “and he wasn’t hard up.” (RR. 62a).

Our own examination of the pre-sentence investigation reveals that these reports contain essentially the same information alluded to by both defense counsel ánd the prosecutor. We would merely add that the examining psychiatrist diagnosed appellee as a “mixed character disorder with schizoid elements.” (Mental Health Evaluation, p. 2, submitted by Richard B. Saul, M.D.).

3. The trial court’s findings and the Guidelines.

In our discussion of the trial court’s findings, we look to statutory provisions, decisions of this court and, of course, the Guidelines.

42 Pa.C.S. § 9721(b) provides in pertinent part:

... In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 2154 (relating to adoption of guidelines for sentencing) and made effective pursuant to section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

We know also that the legislature has said that a Sentence Guideline Form shall be completed at the court’s direction and shall be made a part of the record no later than twenty (20) days after the date of each sentencing. 204 Pa.Code § 303.1(b).

In Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984), this court held that “the judge’s statement of reasons for the sentence made of record at sentencing in the defendant’s presence constitutes a ‘contemporaneous written statement.’ ” Id., 328 Pa.Superior Ct. at 69, 476 A.2d at 457. However, the court in Royer also said that the contemporaneous statement must contain “the permissible range of sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range.” Id., 328 Pa.Superior Ct. at 71, 476 A.2d at 458.

Further, there can no longer be any doubt that the opinion filed by the court below pursuant to Pa.R.A.P. 1925 does not constitute a contemporaneous written statement. Commonwealth v. Bedley, 325 Pa.Super. 157, 160, 472 A.2d 695, 697 (1984).

We have examined the sentencing transcript and the only reason we can find for the sentence imposed was because appellee had alleged that he was twice sexually assaulted while in detention awaiting sentencing. Although it is not clear from the record, apparently when appellee reported the alleged sexual assaults against him, he asked for and received from the prison authorities protective custody and was removed from the general prison population. (RR. 53a-54a).

That the trial judge sentenced outside the Guidelines solely because of her sympathy for the appellee and a concern for his safety, can best be understood from the following discussion between the prosecutor and the trial judge:

MR. CLARKE [Assistant District Attorney]: Yes, Your Honor. I will very respectfully take exception to any sentence outside of the mandatory range. I don’t know whether or not we’re going to reconsider in this case, I don’t know. If I may now address the guidelines.
The bottom of the guidelines is eighteen months. Now, that’s in the bottom of mitigated range. There is nothing in and of itself mitigated about this offense, just the opposite.
THE COURT: It’s not mitigated. The only mitigating circumstances I see in this crime, is that Mr. Days, himself, has been the victim of two very brutal attacks in the prison, and let me say that if it weren’t for that, I would certainly give him at least eleven and a half to twenty-three but I am very reluctant to put him back in the prison system, in view of what has happened to him.
MR. CLARKE: I understand your point. I guess my response, Your Honor, is from the way the Philadelphia Prison System is and from the people who run Holmes-burg, and the House of Correction, it seems that they have taken care of the problem.
THE COURT: Well, they’re doing the best they can with an impossible situation.
MR. CLARKE: I guess I’m differing with Your Honor as to the impossibility of a situation. The man is now being protected, the man is there because he committed this very, very, very, very, serious crime.
THE COURT: It’s a very serious crime. It’s a very serious crime but the penalty for a serious crime as kidnapping of this youngster, is not to be rape, that’s not policy.
MR. CLARKE: I understand. I understand, Your Honor, and I would ask you to impose a sentence within the guidelines and, of course, I, and perhaps Your Honor as well, should contact the prisons and make sure that the man is safe regardless of what sentence you impose, whether you go within the guidelines or not, and if Your Honor chooses, and only if Your Honor chooses, to break the guidelines in this case, this case is still worth incarceration, not just because the guidelines say incarceration, Your Honor.

RR. 59a-61a.

While we find the trial judge’s sympathy and concern for appellee’s safety to be commendable and possibly a subject for further inquiry by the trial judge to the prison authorities, that is not a sufficient reason for the sentence imposed herein.

As we have already noted, supra p. 1341, the minimum range of the applicable guidelines for appellee’s kidnapping conviction is twenty-four (24) to forty-eight (48) months. In calculating an appropriate sentence under the applicable guidelines, this should have been the starting point. Unfortunately, the only reference the court below ever made to the guidelines was when the court said that the offense gravity score was an eight (8). (RR. 54a). The court was later advised by the prosecutor that the bottom of the mitigated guideline range was eighteen (18) months; however, the trial judge stated the crime was not mitigated. The court went on to say, as we have already indicated, “the only mitigating circumstance I see in this case, is that Mr. Days, himself, has been the victim of two very brutal attacks in the prison, and let me say that if it weren’t for that, I would certainly give him at least eleven and a half to twenty-three but I am very reluctant to put him back in the prison system, in view of what happened to him.” (RR. 60a). This is further evidence that the trial judge never considered the Sentencing Guidelines because even the eleven and a half to twenty-three months she would have given is still less than the mitigated sentence guideline for an offense gravity score of eight (8) such as we have here.

In conclusion, since the only reason offered by the court in support of the sentence imposed was a concern for appellee’s safety in prison, we believe that no adequate reason exists for sentencing outside the Guidelines in this case and we are also convinced that the sentence depreciates the seriousness of the offense. Therefore, we find that the court’s failure to follow the Sentencing Guidelines constitutes an abuse of discretion.

Judgment of sentence is vacated and the case is remanded for resentencing consistent with this opinion. Jurisdiction is relinquished.

      . We note that following his conviction, the trial court increased appellee’s bail from $15,000.00 to $30,000.00 and ordered a pre-sentence investigation and a mental health evaluation.

      . We note that although the formal sentence entered by the court on the kidnapping charge was one (1) year concurrent probation, at the sentencing hearing, the court said that the probationary sentence for kidnapping was to be consecutive and it was to be three (3) years not one year. (RR. 63a, 64a) As a matter of fact, the trial court in its Pa.R.A.P. 1925 opinion, says that the sentence she imposed on the kidnapping charge was "three years strict reporting probation." (Slip Op. p. 2) In its brief, the Commonwealth, quite incorrectly, has the sentences for robbery and kidnapping in reverse. However, since the Commonwealth has not raised the issue of the difference between the sentence for kidnapping as formally entered by the trial court on the criminal information and what was said by the tried court, both at the time of sentencing and again in the opinion, we shall do nothing here to resolve the apparent conflict, especially since we are vacating the sentence imposed and remanding for resentencing.

      . Appellee was not sentenced on his conviction for Unlawful Restraint. The court below properly concluded that for sentencing purposes, this conviction merged with the kidnapping charge.

      . We know from the notes of testimony taken at appellee’s preliminary hearing in this case, which notes are a part of the record before us, that at the time of appellee’s arrest in this case, he had three (3) outstanding arrests. (N.T. April 23, 1984, at 21-22). Two of those arrests involved criminal solicitation and corrupting the morals of minors. We have not considered these arrests in the disposition of this appeal.

      . Although the trial judge ordered a pre-sentence investigation and a mental health evaluation, these reports were not made a part of the record. We, sua sponte, directed the District Attorney to file these reports with the prothonotary and we now have both reports. The better practice would be for the trial judge to make these reports a part of the certified record in all appeals where the sentence is challenged as being outside the Sentencing Guidelines.

      . The record in this case did not contain the form required by 204 Pa.Code § 303.1(b) and we are at a loss to understand why the trial court would not comply with the requirement that it oversee the completion of the Guideline Sentence Form. The form was attached to the pre-sentence investigation which we requested sua sponte; however, the form was never completed. The required form has spaces to indicate whether the sentence is under the minimum guideline range, the aggravated guideline range or the mitigated guideline range as well as space to explain any deviation from the Guidelines. The completion of the form has an obvious desirability when a reviewing court is asked to review a sentence outside the Guidelines.

      . Although it would not change the result we reach, there is nothing in the record before us to support such a characterization of the alleged sexual assaults upon the appellee.