author: CIRILLO, Judge: JOHNSON, Judge,

text:
    452 A.2d 851
    COMMONWEALTH of Pennsylvania v. Martin I. ASKIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 3, 1982.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Granted April 14, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Stuart M. Niemtzow, Deputy Attorney General, Norris-town, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, whereby the appellant, Martin Askin, was sentenced to terms of imprisonment of not less than 4 months nor more than 23 months and a concurrent term of 5 years probation.

The Commonwealth’s evidence reveals that the appellant, a pharmacist, was the principal operator of the 817 Medical Center from May, 1975 until December, 1977, along with Joseph Martorano, a pharmacist and administrator, and Jesse Gutman, a dentist. During that period, the Commonwealth was billed for Medicaid reimbursements based upon invoices on which the three co-defendants had signed, without authorization, the names of John Taweel and Norman Weiss, two doctors who had worked briefly at the Medical Center. The invoices did not apply to services provided by dentists or pharmacists.

On February 6,1980, following a grand jury investigation, the appellant was arrested on numerous criminal charges. After several pre-trial motions were disposed of, the matter proceeded to trial on February 9, 1981 before the Honorable Alfred DiBona, Jr., sitting without a jury. The appellant was charged with 11 counts of Forgery and one count of Conspiracy, and on February 20, 1981 he was found guilty on all counts. The appellant filed post-trial motions which, after argument, were denied by Judge DiBona. On July 1, 1981 the appellant was sentenced to 10 concurrent terms of 4 to 23 months imprisonment, and terms of 5 years and 3 years probation to be served concurrently with the prison sentence. This appeal now follows.

The appellant contends, on appeal, that the trial court erred in convicting him of conspiracy as the applicable period of limitations had expired. Time limitations for the prosecution of offenses are provided for under 18 Pa.C.S.A. § 108(b) as follows:

(b) Other offenses.—Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:
(1) A prosecution for any of the following offenses under this code must be commenced within five years after it is committed:
Section 3123 (relating to involuntary deviate sexual intercourse)
Section 3301 (relating to arson and related offenses) Section 3502 (relating to burglary)
Section 3701 (relating to robbery)
Section 4101 (relating to forgery)
Section 4902 (relating to perjury)
(2) A prosecution for any other offense under this code must be commenced within two years after- it is committed.

The Bills of Information on which the Commonwealth proceeded to trial averred actions that occurred between July 21, 1975 and June 3, 1976. Clearly, the prosecution for forgery was timely commenced. The appellant asserts, however, that since conspiracy is not specifically listed in section 108(b)(1), it falls within the provision of section 108(b)(2) and, therefore, an action must be commenced within 2 years after the conspiracy is committed, or it is barred.

In Commonwealth v. Eakles, 286 Pa.Super. 146, 428 A.2d 614 (1981), the appellant was found guilty of multiple counts of forgery and theft by unlawful taking, and one count of conspiracy arising out of a scheme to defraud a governmental agency. The trial court subsequently arrested judgment on the convictions for theft by unlawful taking. This Court affirmed the lower court’s ruling as well as the sentences imposed for the conviction of forgery and conspiracy, even though more than 2 years passed between the time of the criminal act and the filing of the Complaint. Likewise, in Commonwealth v. Hawkins, 294 Pa.Super. 57, 439 A.2d 748 (1982), the appellant was convicted by a jury of multiple counts of theft by deception, receiving stolen property and securing execution of documents by deception, and one count of criminal conspiracy. This Court affirmed the appellant’s convictions on all counts of theft by deception and securing execution of documents by deception, and the one count of conspiracy. Again, as in Eakles, these charges also took place more than two years before the filing of the criminal Complaint.

These decisions make it clear that the crime of conspiracy does not carry with it a two-year statute of limitations, but rather carries with it the same statute of limitations as the most serious crime for which the defendant could be properly convicted. Indeed, such an outcome coincides with legislative intent, as expressed in 18 Pa.C.S.A. § 905(a):

(a) Grading.—Except as otherwise provided in this section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit murder or a felony of the first degree is a felony of the second degree.

Thus, in this instance, the statute of limitations for conspiracy was five years, the same period of limitations as for forgery. We therefore find this contention of the appellant to be without merit as the period for prosecuting the charge of conspiracy had not yet expired.

The appellant also contends that the trial court erred by allowing the Commonwealth to introduce evidence of other activity not charged in the Bills of Information. Although, generally, evidence of the commission of offenses not charged in the information is not admissible, there are exceptions where the acts not charged tend to show, inter alia, motive, intent, malice, identity, or a common plan, scheme, or design. Commonwealth v. Styles, 494 Pa. 524, 431 A.2d 978 (1981); Commonwealth v. Stanley, 484 Pa. 2, 398 A.2d 631 (1979).

The theory of the Commonwealth’s case was that the appellant and his co-defendants saw patients and submitted thousands of invoices for Medicaid reimbursement, both for services purportedly rendered and for prescriptions purportedly dispensed, even though there was no licensed physician on the premises. The appellant avers that testimony elicited by the Commonwealth, indicating that controlled substances were being sold, essentially to drug addicts, was irrelevant and highly prejudicial. However, the type of treatment and the type of drugs prescribed was quite relevant to a determination of the motivation of the co-conspirators. All of their activity allowed the trial judge to infer that the motivation of the co-defendants for this scheme was to obtain substantial sums of money to which they were not entitled. Therefore, evidence of other activity not charged in the information was properly admitted, and the trial court did not err in this instance.

Additionally, when the court sits alone as the finder of fact, it is well-settled that the trial judge must be presumed to be able to disregard inflammatory evidence, and to consider evidence only for the legitimate purpose for which it is elicited. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Wright, 234 Pa.Super. 83, 339 A.2d 103 (1975). Consequently, even if the testimony regarding activity not charged in the information was somewhat prejudicial, the trial judge could attribute to the testimony its proper weight, hence negating any deleterious effect.

Accordingly, we affirm the Judgment of Sentence of the Court below.

Judgment of sentence affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I most respectfully dissent. The majority affirms Appellant’s judgment of sentence on convictions for eleven counts of forgery and one count of criminal conspiracy. Although I agree with the majority that the trial court did not err in permitting the introduction of evidence of other criminal activity, I disagree with their determination on the issue of the statute of limitations for conspiracy.

The majority disposes of Appellant’s first issue by determining that the statute of limitations for criminal conspiracy is not two years, but that criminal conspiracy carries with it the limitations period of the most serious crime for which Appellant could be properly convicted, in this case forgery.

The record indicates that a complaint, pursuant to a grand jury presentment, was filed on February 6, 1980. The information filed pursuant to the count of criminal conspiracy states the crimes were committed “.. . on or about July 21,1975 and on divers dates up to and including June 3,1976 ...” It is clear from these facts that the charges were not brought within two years.

The limitations statute on criminal prosecutions, 18 Pa.C. S.A. § 108, states in part:

(b) Other Offenses.—Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:
(1) A prosecution for any of the following offenses under this code must be commenced within five years after it is committed:
Section 3123 (relating to involuntary deviate sexual intercourse)
Section 3301 (relating to arson and related offenses) Section 3502 (relating to burglary)
Section 3701 (relating to robbery)
Section 4101 (relating to forgery)
Section 4902 (relating to perjury)
(2) A prosecution for any other offense under this code must be commenced within two years after it is committed.

Clearly, as criminal conspiracy is not enumerated in the list of crimes having a five year limitations period, subsection (b)(2) must apply. Also, although it is clear that where conspiracy is the crime charged, it is considered to be a continuing offense, Commonwealth v. Volk, 298 Pa.Super. 294, 444 A.2d 1182 (1982), it is also clear that conspiracy must be prosecuted within two years after the commission of the last offense, Commonwealth v. Volk, supra; see also Commonwealth v. Kirk, 340 Pa. 346, 17 A.2d 195 (1941); Commonwealth v. Fabrizio, 197 Pa.Super. 45, 176 A.2d 142 (1961).

The majority cites two recent cases for support of their determination. In neither Commonwealth v. Hawkins, 294 Pa.Super. 57, 439 A.2d 748 (1982), nor Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1981) was this court presented with the issue raised in the instant case. Therefore, I must disagree with the majority that these cases make clear that conspiracy does not carry with it a two-year statute of limitations. In fact, as stated in Commonwealth v. Hawkins, id., 294 Pa.Superior Ct. at 61, 439 A.2d at 749; “[t]he general statute of limitations applicable to the charges upon which Appellant was convicted is two years. 18 Pa.C.S.A. § 108(b)(2).”

I further disagree that the grading provisions of 18 Pa.C. S.A. § 905(a) provide any legislative intent concerning the statute of limitations. Section 905(a) merely states, in part, that conspiracy is a crime of the same grade and degree as the most serious offense which is an object of the conspiracy.

Finally, because neither fraud nor breach of fiduciary obligation is a material element of the offense of conspiracy, the exceptions to the two year limitations period, as found in 18 Pa.C.S.A. § 108(c) do not apply, as proof of fraud is not essential to a conviction for conspiracy. See Commonwealth v. Hawkins, supra.

Appellant further alleges that since the conspiracy conviction is invalid, the convictions for forgery based on invoices signed by Appellant’s co-defendant must also be discharged. Appellant argues that without a valid conspiracy bill, the Commonwealth cannot sustain a forgery conviction based on items signed by someone other than Appellant only by alleging and proving accomplice liability. The information for forgery charges Appellant with all subsections of section 4101:

(a) Offense defined:—A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
(1) alters any writing of another without his authority;
(2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or
(3) utters any writing which he knows to be forged in a manner specified in paragraphs (1) or (2) of this subsection.

I find Appellant’s argument meritless for two reasons. First, as Appellant was charged with subsection (3), he can be found guilty of forgery if, with intent or the requisite knowledge, he utters a writing which he knows to be forged. Therefore, the actor need not actually sign a writing to be guilty under this statute. See Commonwealth v. Lee, 495 Pa. 461, 434 A.2d 1182 (1981). Also, in Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979) (3-3 decision), now Chief Justice O’BRIEN stated in his OPINION IN SUPPORT OF AFFIRMANCE that one can be convicted as an accessory though only charged as a principal under the Crimes Code, as well as under the old Penal Code. I therefore find no merit to the argument that the forgery convictions based on invoices not signed by Appellant must also be reversed.

In summary, I would reverse Appellant’s judgment of sentence on the conspiracy conviction and affirm the judgment of sentence on the forgery conviction.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 4101.

      . Id.; as amended by the Act of April 28, 1978, P.L. 202, No. 53, § 7(2); 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 4101.

      . Id., § 903.

      . 18 Pa.C.S.A. § 108 was reenacted in 42 Pa.C.S.A. § 5552, effective June 27, 1978.

      . 18 Pa.C.S.A. § 108(c) states:
      (c) Exceptions.—If the period prescribed in subsection (b) of this section has expired, a prosecution may nevertheless be commenced for:
      (1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.
      (2) Any offense committed by a public officer or employee in the course of or in connection with his office or employment at any time when the defendant is in public office or employment or within two years thereafter, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.

      . The information did allege, as required for the exception to be valid, that fraud was a material element of the crime. See Commonwealth v. Eackles, supra.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    452 A.2d 855
    COMMONWEALTH of Pennsylvania v. Gary Lee MILLIGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 14, 1981.
    Filed Nov. 19, 1982.

      Gary Lee Milligan, appellant, in pro. per.
    George Yatron, District Attorney, Reading, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

Appellant was found guilty of conspiracy to commit escape and following the denial of his post-verdict motions, sentenced to two and one-half to five years imprisonment and to pay a fine of $100.00. This appeal followed.

Appellant raises four issues on appeal, namely: (1) whether the trial court committed error by refusing to conduct a timely habeas corpus hearing, pursuant to Appellant’s petition, and for unlawfully aborting such hearing once it had commenced, (2) whether the trial court abused its discretion in severing Appellant’s trial from the trial of co-conspirators, (3) whether sufficient evidence supported the conspiracy conviction, when Appellant’s alleged co-conspirators were both acquitted subsequent to Appellant’s conviction and, (4) whether standby counsel appointed to Appellant rendered ineffective assistance for failing to file meritorious post-verdict motions involving the court’s refusal to allow cross-examination of a Commonwealth witness and the court’s submission of written instructions to the jury after the jury requested clarification of an issue.

The procedural history of this case indicates that Appellant represented himself at trial, with the trial court appointing standby counsel from the Office of the Public Defender. After the rendering of the guilty verdict, Appellant petitioned for appointment of counsel. The trial court, by Order dated April 28,1980, appointed Appellant’s standby counsel “to represent Gary Lee Milligan in the appeal of the above-captioned case.” (emphasis added). Appellant’s counsel then filed post-verdict motions and represented Appellant at argument on said motions and at the sentencing hearings. Appellant then filed a pro se Petition to Modify, Vacate and Reconsider Sentence which the trial court denied. This pro se direct appeal followed, along with Appellant’s pro se brief. No Commonwealth brief appears of record.

This court has often stressed the importance of affording a defendant the opportunity to have assistance of counsel in court proceedings. See e.g. Commonwealth v. Lenhart, 296 Pa.Super. 131, 442 A.2d 331 (1982); Commonwealth v. Hobson, 286 Pa.Super. 271, 428 A.2d 987 (1981). The right to be represented by counsel involves more than mere presence; counsel must act as an advocate. Commonwealth v. Villano, 435 Pa. 273, 256 A.2d 468 (1969). Once retained, counsel is to protect the interests of the accused. Commonwealth v. Volk, 298 Pa.Super. 294, 444 A.2d 1182 (1982).

From our review of the record, including Appellant’s pro se brief, we are unable to establish that Appellant’s court-appointed counsel has assisted Appellant in the prosecution of this appeal. Nor is there any evidence of counsel’s attempt to withdraw. Instead, we are faced only with Appellant’s inartfully drafted pro se brief.

Therefore, we remand this case to the trial court for (1) a determination on the record as to (a) whether Appellant’s court-appointed counsel for appeal remains as counsel of record for Appellant, and (b) whether Appellant desires or requires assistance of counsel and (2) for a review and resubmission of a brief arguing any issues found to exist following consideration and proper consultation by Appellant with his counsel, if any. This remand is ordered without prejudice to Appellant’s right to resubmit this appeal at a different term and number of this court. Jurisdiction is not retained.

      . 18 Pa.C.S.A. §§ 903, 5121.

      . Appellant need not proceed on appeal with counsel, as every defendant has a constitutional right to represent himself if he voluntarily and intelligently elects to do so. Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978).


author: WATKINS, Judge:

text:
    452 A.2d 857
    COMMONWEALTH of Pennsylvania v. Stuart Walter FUNKE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 6, 1980.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Denied July 8, 1983.

      J. Christian Ness, York, for appellant.
    Peter J. Mangan, Assistant District Attorney, York, for the Commonwealth, appellee.

      Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This is an appeal from the conviction and sentence of the Court of Common Pleas of York County by the defendant-appellant, Stuart Walter Funke, Jr. He was convicted by a jury of the manufacture of amphetamines. Post-trial motions were denied by the trial court, and appellant was sentenced to a term of imprisonment of not less than two and one-half nor more than five (2y2-5) years.

The facts as set forth in the opinion of the court below are as follows: Shortly after Christmas, 1977, the defendant moved into real estate in the City of York which he and his wife owned and which was previously occupied by his wife and child. There was a retail establishment on the first floor of the premises. Defendant and his family occupied an apartment on the second and third floors. The defendant owned a great deal of laboratory equipment, had studied chemistry and had practical experience in the field as it was a significant part of his job at American Machine Foundry. On January 3,1978, two boxes from a chemical supply house were delivered to a Mr. Senft. These had been ordered by a Mr. Boring, who requested that Mr. Senft receive them. When notified that the boxes had arrived, Boring picked them up and delivered them to the premises occupied by the defendant. Later that day, Pennsylvania State Police Officers who had the premises under surveillance examined two boxes apparently set out in front of the defendant’s premises for refuse collection. There were several empty bottles in these boxes which contained residue of formaldehyde, formic acid, and phenyl-2-propane. The last was identified by an expert witness as a chemical essential to the illicit manufacture of amphetamines. The other chemicals were identified as ones that could be and frequently were used in such production. A search warrant was obtained and executed on January 6, 1978. The police found a great quantity of laboratory equipment in a room on the third floor. This equipment included a large number of items which contained residue of amphetamines. An expert witness called by the Commonwealth testified that the equipment that had been seized included all of the equipment required to manufacture amphetamines and he further testified that he had made amphetamines by a process that used said equipment, the chemicals found on the premises, and the chemicals in the containers found in the trash.

Appellant’s first contention in this appeal is that the search warrant was invalid, in that there was insufficient information from which the issuing authority could assess the credibility of the informants, there was a failure to set forth the underlying circumstances necessary to judge the validity of the informants’ information, and there was no probable cause to justify issuance of this search warrant at the time of its issuance.

There is a two-pronged test which must be met before a magistrate can issue a search warrant based primarily on information supplied by informants. First, the affidavit must set forth the underlying circumstances from which the informant drew his conclusion. Second, the affidavit must contain some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964).

The appellant contends that the Aguilar test was not met with respect to the three informants involved here. It is true that the affidavit does not set forth adequate information from which one could ascertain that the informant’s were credible or their information reliable. However, one does not have to rely solely on the information supplied by the informants in order to find that there was probable cause to believe that appellant was operating a clandestine laboratory. The affidavit consists of sixteen paragraphs, the majority of which relate the personal observations of the affiant and other police officers resulting from an extensive investigation and the surveillance of appellant’s premises. One must take into consideration the affidavit as a whole, which consists of: (1) information supplied by informants; (2) information which supports the conclusion that appellant is a chemist; (3) observations of police officers that certain chemicals were delivered to appellant’s premises by one George Boring; and (4) the fact that bottles containing chemicals essential to the manufacture of amphetamines were found in front of appellant’s premises. Clearly, all of this taken together is sufficient for a finding of probable cause. Therefore, the search warrant was valid.

The second issue raised on appeal is whether the lower court erred, in failing to remove from the courtroom a large quantity of materials which were never used as exhibits at trial. Appellant cites several cases in which the presence of certain materials within the jury’s view was held to be prejudicial since they were unrelated to the crimes with which the defendants were charged. See State v. Bowman, 8 Wash.App. 61, 504 P.2d 1148 (1972); Adler v. State, 248 Ind. 193, 225 N.E.2d 171 (1967); U.S. v. Kwitek, 433 F.2d 18, later appealed, 467 F.2d 1222 (1972). This case is distinguishable. The materials seized from appellant’s premises consisted of textbooks, magazines, and laboratory equipment. This all supported the fact that appellant is an experienced chemist who performed experiments in his home. Since he was charged with manufacture of amphetamines, these materials were clearly related to the crime charged. This is not comparable to the situation in Adler v. State, supra, in which the crime charged was robbery and a picture of the deceased victim was posted in front of the jury, giving rise to the implication that the defendants were responsible for his death. Counsel for appellant has been unable to show what materials were prejudicial to appellant. Since the materials were all related, however, incidentally to the crime charged, and since there has been no allegation of which materials were prejudicial, the lower court did not err. This is particularly true in light of the fact that the Commonwealth intended to have all the materials admitted into evidence at some time during the trial. The court had no way of knowing at the time of the objection that a large portion of the material would never be admitted.

A third issue raised by the appellant is whether the lower court erred in failing to instruct the jury to limit its deliberations to that period of time for which the defendant was charged. The information charged manufacture of amphetamine on or about January 6, 1978, the date of the search of appellant’s property. Prior to the trial the Commonwealth indicated an intent to prove that the offense occurred between January 3, 1978 and January 6, 1978. In its charge to the jury, the court instructed that the jury could consider activities of appellant from Christmas, 1977 to January 6, 1978, in deciding whether or not the Commonwealth had proved appellant’s guilt beyond a reasonable doubt. Counsel for appellant now contends that this instruction was error since it changed the time frame originally agreed upon. He says that if he had known that such would be the case, he would have made different tactical decisions.

The law is clear that such an instruction is proper. It is provided in Pa.R. Crim.Pro. 213(a)(3) that an indictment or information must contain:

“the date when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient.”

The “on or about” language was employed in the information charging appellant.

In Commonwealth v. Rouse, 207 Pa. Superior Ct. 418, 218 A.2d 100 (1966), it was written that “in the prosecution of . . . crimes in which a particular date or day of the week is not the essence of the offense, the Commonwealth’s burden is to prove the commission of the crime upon some date fixed with reasonable certainty and within the prescribed statutory period.” The court upheld the conviction of the defendant since the trial judge found that “On several occasions during the period from approximately the first week in November to the second week in December, and on or about the New Year” the defendant had committed the acts for which he was charged. In Commonwealth v. Morrison, 180 Pa. Superior Ct. 121, 118 A.2d 258 (1955), it was held that “the jury [can] properly consider and convict upon any evidence that show[s] commission of the crime or crimes charged within [the statutory period].”

The offense in this case is a continuing one. The information properly charged appellant with manufacture of amphetamine “On or about January 6, 1978.” Counsel for the appellant had asked the court during the trial to limit testimony to events which occurred on January 6,1978. The Commonwealth indicated that the testimony elicited would probably concern events which occurred between January 3, 1978, and January 6, 1978. During the course of the trial, however, there was testimony concerning events prior to that time. Therefore, the lower court’s instruction to consider evidence between Christmas, 1977, and January 6, 1978, was not error as that period was within the Statute of Limitations.

Another issue raised on appeal is whether the lower court erred in failing to grant a mistrial when a police officer called by the Commonwealth as a witness commented in the presence of the jury on appellant’s calling his attorney at the time of the search. Before trial, counsel for appellant sought to preclude any reference to this fact, contending that it would suggest to the jury that appellant was guilty. The court agreed that the fact was not relevant and told the District Attorney to tell his witnesses to make no reference to it. One of the police officers, however, did make such reference. The District Attorney stated that he had forgotten to relay this instruction to the witness. The explanation was accepted and the motion for mistrial was denied.

Appellant analogizes this to cases in which it was held that it is error to allow evidence of a defendant’s assertion of his constitutional right to remain silent. The reason behind these holding is that “most lay persons would view an assertion of the constitutional privilege as an admission of guilt.” Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976). Appellant cites no authority to support his contention that a mistrial should be called if reference is made to an attorney’s presence during a search. We agree with the lower court that appellant was not prejudiced by the statement. In all likelihood, the average lay person would probably not conclude that one who calls his attorney upon being confronted by a dozen police officers with a search warrant is admitting his guilt by his actions.

The fifth issue raised by the appellant is whether the lower court erred in its instruction to the jury on the definition of the term “manufacture.” Section 2 of the Controlled Substance Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. Sec. 780-102, defines the term “manufacture” as “the production, preparation, propagation, compounding, conversion or processing of a controlled substance...” None of the elements of the definition are defined in the Act. In its instructions to the jury, the lower court gave the standard dictionary meaning of “processing”. Appellant contends that this was error, since, by elaborating on one element of the definition, it unduly emphasized that element.

One of the duties of a trial judge is “to clarify the issues so that the jury may comprehend the questions they are to decide and not only to state to the jury correct principles of law applicable to the pending case and to endeavor to make such principles understandable in plain language...” Commonwealth v. Zeger, 200 Pa. Superior Ct. 92, 186 A.2d 922 (1962). Appellant contends that all the words of the definition are self-explanatory. The trial judge obviously did not agree. By defining the word “processing” in the common dictionary sense he was only clarifying the definition for the jury. That was not error.

In his next contention, the appellant claims that the court below erred when it refused to permit the appellant’s attorney to ask defense witnesses on re-direct examination whether they had testified truthfully during their direct testimony. This occurred after the Commonwealth, upon cross-examination, had established a relationship between the defense witness and the appellant tending to taint the credibility of the defense witness. The appellant’s attorney asked the witness: Q. Do you understand that you are under oath to tell the truth in this proceeding? A. Right. Q. Are you telling the truth? This question was objected to and the court properly sustained the objection as the issue as to the truthfulness of witnesses’ testimony is a jury question.

Appellant’s seventh contention is that the evidence was insufficient to sustain the verdict that the jury rendered against him. Under the circumstances of this record, this question is totally without merit. If the Commonwealth is entitled to the benefit of all favorable evidence and reasonable inferences therefrom, then the evidence in this case was more than adequate to support the verdict. See Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973).

Appellant’s next contention deals with the admission of certain exhibits by the Commonwealth which were photographs of boxes and labels, a signature form, and an order form. These exhibits tended to show that certain chemicals had been purchased by the appellant from a chemical company and that he had received them. These exhibits were admitted as circumstantial evidence in order to show that the chemicals were used in the manufacture of illegal substances. They were properly admitted.

Appellant’s ninth argument is that the lower court erred in refusing to permit the appellant’s attorney to inquire and argue before the jury the status of certain criminal charges against a third person (James Diehl) which arose out of the same series of events. A review of the cross examination of Trooper J.R. Lokhaiser establishes that the defense counsel did indeed inquire into the charges against Diehl in some detail. Diehl did not testify at appellant’s trial. After the cross examination of Lokhaiser, the District Attorney requested that he be permitted to ask the witness the exact nature of charges pending against Diehl. The court refused this request and stated that it would have to sustain any objection to defense counsel’s questioning of the status regarding Diehl had the Commonwealth voiced an objection. Appellant now argues that he was precluded from showing that Diehl, rather than appellant, committed the offenses because the court precluded him from arguing the status of the charges against Diehl to the jury. However, the appellant desired the information regarding Diehl in order to impeach Diehl in the events should he take the witness stand and not to shift the blame to Diehl. Appellant counsel did not inform the court of the purpose that it now avers at the time of the trial. When trial counsel proposes to introduce evidence for one purpose then he is deemed to have waived any other purpose that he does not present at the time of the proposal but thinks about later after the trial has ended.

The court did permit appellant to argues concerning the missing witness. No error was committed here.

Appellant’s tenth contention is that the lower court erred in refusing to instruct the jury that an expert is qualified to give an opinion based on his expertise, without having direct knowledge about which he is testifying. The chemist who testified for the Commonwealth had manufactured amphetamines from the same chemicals as those found in and around appellant’s property using the same equipment as that found at appellant’s premises. The chemist who testified for appellant had never manufactured amphetamines. He testified on the basis of what he had learned in books. Appellant requested an instruction to the jury that his expert’s opinion could be considered although he lacked practical experience in the manufacture of amphetamines.

The court explained the value of expert testimony by saying that “An expert is permitted to give explanations and draw inferences not within the range of ordinary knowledge, intelligence and experience and to give an opinion and state his reason for it.” The court went on to say that “you are not bound by the testimony of either expert, much like direct and circumstantial evidence, until the last analysis. It is your judgment of what you found persuasive that counts.” It is clear in the instruction that an expert’s testimony is to be considered even though what he says may be an opinion. If the court had given the requested instruction, it might have had the effect of implying that the defense expert’s testimony was to be given more weight than the Commonwealth’s expert. It is not the duty of the court to determine the credibility of witnesses in a jury trial. This is a matter for the jury’s determination and no error was committed by the lower court on this question.

The next question raised by the appellant is that the lower court erred in permitting appellant’s expert to testify to his fees for researching and preparing for trial. A jury may consider the interest of a witness in assessing the witness’s credibility. See Commonwealth v. Dolny, 235 Pa. Superior Ct. 241, 342 A.2d 399 (1975).

The final argument of the appellant is whether the sentence imposed by the court is so manifestly excessive as to inflict too severe a punishment. The court sentenced the appellant on December 26, 1978 to a term of imprisonment of not less than two and one-half nor more than five years and a fine of $15,000. The maximum sentences for this crime was five years and maximum fine of $15,000. Thus, the sentence did not exceed the statutory limits. A review of the record discloses the seriousness of the appellant’s activities in the manufacture, on a large scale, of illegal substances. The evidence at trial indicated that 60,000 to 60,440 dosage units of amphetamine could be manufactured with the fruits of the search of appellant’s premises. This was only a small portion of the total amphetamine manufactured by him. The appellant’s activities in the manufacturing of such a pernicious substance was an extremely serious matter involving great harm to society. Under these circumstances, the sentences were justified.

Judgment of sentence affirmed.


author: WATKINS, Judge: SPAETH, Judge,

text:
    452 A.2d 863
    Linda HATFIELD, Appellant, v. Sheldon HAZELBAKER.
    Superior Court of Pennsylvania.
    Submitted Oct. 28, 1981.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Denied March 4, 1983.
    Steve P. Leskinen, Uniontown, for appellant.
    Franklin Bialon, Monessen, for appellee.

      Before SPAETH, HESTER and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Fayette County, and involves appellant-mother’s appeal of an Order of court dated November 14, 1980 which dismissed her petition seeking support for a minor child born out of wedlock on the grounds that the statute of limitations barred such an action.

The child was born out of wedlock on April 24, 1975. The defendant-appellee had never voluntarily contributed to the support of the child and had not acknowledged his paternity in writing. On July 24,1980, the appellant filed her action against the defendant seeking support of the child. On November 14, 1980, the court below held that the governing statute of limitations was the Act of December 6, 1972, P.L. 1482, No. 334, Section 1, 18 Pa.G.S.A. 4323 which provided for a two year statute of limitations for the maintaining of support actions against a reputed father of a child born out of wedlock. The two year period began to run at the birth of the child or, if the defendant had voluntarily supported the child or acknowledged his paternity in writing, then the two year period began to run at the time of the contribution or the written acknowledgement. See 18 Pa.G.S.A. 4323(b).

In 1978 our Legislature increased the applicable statute of limitations from two years to six years from the date of birth of the child. Act of April 28, 1978, P.L. 106, No. 46, Section 2, 42 Pa.C.S.A. 6704(e). Thus, if the old statute of limitations were to be applied to the instant case the appellant’s cause of action was barred because the statute would have run on April 24, 1977, more than one year prior to the filing of the instant action on July 24,1980. However, if the new Act is applicable to the instant case then the statute would not have run until April 24, 1981 and appellant’s support action was timely. The court below reasoned that the old Act applied to this case because to hold otherwise would be to hold that the 1978 Act breathed new life into a cause of action that had been dead for more than a year prior to its adoption. While that reasoning is plausible and has been adopted by several of our lower courts we must hold that it is incorrect since our Court’s decisions in Williams v. Wolfe, 297 Pa. Superior Ct. 270, 443 A.2d 831 [1982] and Commonwealth ex rel. Lucretia Johnson v. King, 297 Pa. Superior Ct. 431, 444 A.2d 108 [1982], wherein this Court held, in effect, that the new Act was to be applied retroactively, although couching its reasoning in slightly different terms. Thus, we hold that the appellant’s action is not controlled by the 1972 Act but is controlled by the 1978 Act and is, the refore, not barred by the statute of limitations.

Order reversed; the case is remanded for proceedings consistent with this opinion.

SPAETH, J., files a concurring statement.

SPAETH, Judge,

concurring:

I agree that the order must be reversed, and only refrain from joining the majority opinion because of its implied disapproval of Williams v. Wolfe, 297 Pa. Superior Ct. 270, 443 A.2d 831 (1982), and Commonwealth ex rel. Johnson v. King, 297 Pa. Superior Ct. 431, 444 A.2d 108 (1982).


author: HOFFMAN, Judge:

text:
    452 A.2d 865
    Mary NISSLEY, Administratrix of the Estate of Russel K. Nissley, deceased, and Mary Nissley, Individually v. JLG INDUSTRIES, INC. and H.J. Williams Co., Inc., and Helgesteel Corporation. Appeal of HELGESTEEL CORPORATION.
    Superior Court of Pennsylvania.
    Argued May 10, 1982.
    Filed Nov. 19, 1982.

      Joel David Smith, Lancaster, for appellant.
    David C. Keiter, York, for Nissley, appellees.
    Christopher S. Underhill, Lancaster, for JLG, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in finding it subject to jurisdiction pursuant to Pennsylvania’s Long-Arm Statute, 42 Pa.C.S.A. §§ 5322(a)(4) and (b). Because we find appellant’s contacts with Pennsylvania insufficient to establish jurisdiction, we reverse the lower court.

On March 2, 1976, decedent was crushed to death between the basket of a man-lift (cherry picker) he was operating and a steel beam. On August 18, 1977, Mary Nissley, decedent’s widow, filed suit against JLG Industries, Inc. (JLG), manufacturer of the man-lift. On March 4, 1980, the lower court granted JLG’s petition to join both previous owners of the man-lift, H.J. Williams Co., and appellant, Helgesteel Corporation, as additional defendants. Appellant, a Wisconsin corporation, challenged the complaint alleging lack of personal jurisdiction. The lower court, on December 31, 1980, found appellant subject to Pennsylvania’s jurisdiction and pursuant to Pa.R.App.P. 311(b), certified that the question of personal jurisdiction presented a substantial issue of jurisdiction, thus permitting this appeal.

The assertion of personal jurisdiction over a nonresident must fall within the terms of the state long-arm statute and must meet the constitutional standards of due process. Monroeville Land Co., Inc. v. Sonnenblick-Goldman Corp. of Western Pennsylvania, 247 Pa.Superior Ct. 61, 371 A.2d 1326 (1977); Action Industries, Inc. v. Wiedeman, 236 Pa.Superior Ct. 447, 346 A.2d 798 (1975). Because the reach of the Pennsylvania Long-Arm Statute is “co-extensive with requirements of due process under the Fourteenth amendment to the United States Constitution,” our controlling consideration here is “whether appellant had sufficient minimum contacts with this forum to make the exercise of jurisdiction permissible.” Bev-Mark, Inc. v. Summerfield GMC Truck Co., 268 Pa.Superior Ct. 74, 78, 407 A.2d 448, 445 (1979). Due process requires that the defendant have “certain minimum contacts with [the forum] such .that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 826 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).

Those demands may be met by such contacts of the corporation with the state of the forum as make it reasonable in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there... [I]t has been generally recognized that the casual presence of the corporate agent or even his conduct of single or isolated items of activities in a state in the corporation’s behalf are not enough to subject it to suit on causes of action unconnected with the activities there.

Id. at 317, 66 S.Ct. at 158-59. “It is essential in each case that there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1957). Accordingly, “an essential criterion in all cases is whether the ‘quality and nature’ of the defendant’s activity is such that it is ‘reasonable’ and ‘fair’ to require him to conduct his defense in that state.” Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1957). This court arrived at a three-part test integrating these due process considerations:

First, the defendant must have purposely availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws. Secondly, the cause of action must arise from defendant’s activities within the forum state. Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable.

Proctor & Schwartz v. Cleveland Lumber Co., 228 Pa.Superior Ct. 12, 19, 323 A.2d 11, 15 (1974), allocatur refused, (citations omitted); Kingsley and Keith (Canada) Ltd. v. Mercer International Corp., 291 Pa.Superior Ct. 96, 435 A.2d 585 (1981). The Supreme Court recently refined the “due process” requirement in World Wide Volkswagen v. Woodson, 444 U.S. 286, 294, 100 S.Ct. 559, 565, 62 L.Ed.2d 490 (1980), where a New York car dealer and a New York, New Jersey, Connecticut area regional distributor were not required to defend a products’ liability action in Oklahoma brought by plaintiffs who had purchased a car in New York and subsequently moved to Oklahoma. The Court noted that, “the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum state. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. at 297, 100 S.Ct. at 567. The Court stated a need for “a degree of predictability to the legal system that allows potential defendants, to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.” Id. at 297, 100 S.Ct. at 567. See generally Kenny v. Alexson Equipment Co., 495 Pa. 107, 432 A.2d 974 (1981).

Appellant, a Wisconsin corporation engaged in construction work, purchased the man-lift from a distributor in Wisconsin and used the equipment in building projects for approximately two years. After deciding to liquidate some of its excess construction equipment, on a one-time basis, appellant consigned several items to Forke Brothers Auctioneers, located in Lincoln, Nebraska. Forke Brothers advertised the auction throughout the United States and in foreign countries. Appellant had no power to approve bids, withdraw any items from sale, control terms of any sale, or become involved in the auction. (N.T. August 1, 1980, at 72a-83a). H.J. Williams Co., of Pennsylvania, bought the man-lift at the Wisconsin auction and shipped it to Pennsylvania via New York. Williams delivered the man-lift to its subsidiary, L.S. Lee & Sons, which in turn, lent it to H.R. Miller Co., decedent’s employer. Appellant’s sole contact with Pennsylvania was its use of a Nebraska auctioneer that advertised outside of Wisconsin and eventually sold to a Pennsylvania corporation.

We are satisfied that these contacts fall far short of the constitutionally mandated “minimum contacts” necessary to assert personal jurisdiction. First, we do not find that appellant has “purposely availed itself of the privilege” of acting within Pennsylvania, Proctor & Schwartz, supra, through its agent’s Forke Brothers, advertising here. While it is true that an auctioneer is considered an agent, Gardiner v. D.P.S. Nichols, 48 Pa.Superior Ct. 510 (1912); U.S. v. Somerville, 211 F.Supp. 843 (W.D.Pa.1962), aff’d 324 F.2d 712 (3d Cir.1963), it does not necessarily follow that the jurisdictional contacts made by the agent can be imputed back to the principal. Appellees’ contention that the consequence of this relationship is sufficient, standing alone, to satisfy the “minimum contacts” requirement is not tenable. In Russ v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980), Minnesota failed in its attempt to assert quasi in rem jurisdiction over an Indiana resident based on the defendant’s insurance company’s selling insurance in Minnesota. The Supreme Court held that:

the fact that the defendant’s insurer does business in the forum State suggests no further contacts between the defendant and the forum, and the record supplies no evidence of any. State Farm’s decision to do business in Minnesota was completely adventitious as far as [defendant] was concerned. He had no control over that decision, and it is unlikely that he would have expected that by buying insurance in Indiana he had subjected himself to any suit in any State in which a potential future plaintiff might decide to move. In short, it cannot be said that the defendant engaged in any purposeful activity related to the forum that would make the exercise of jurisdiction fair, just or reasonable.

Id. at 328-29, 100 S.Ct. at 577. Similarly, it would be unreasonable and unfair to expect appellant to defend against a suit in any state or country in which Forke Brothers advertised the auction. Moreover, appellant’s president testified at his deposition that he never questioned Forke Brothers about their advertising and did not find out until after the auction that buyers had come from out-of-state. Appellant had no control over the auction or the ultimate destination of the equipment. The present case differs significantly from Koenig v. International Brotherhood of Boilermakers, 284 Pa.Superior Ct. 558, 426 A.2d 635 (1980), where jurisdiction was asserted over appellants’ New York employer because performance of the contract involved was not only foreseeable in Pennsylvania, but the employer “presumably directed appellants to perform here.” Id., 284 Pa.Superior Ct. at 572, 426 A.2d at 642. The court added that “[the employer’s] involvement with Pennsylvania was therefore more deliberate than that of a non-resident defendant that merely foresaw that the plaintiff might perform in Pennsylvania but did not direct such performance.” Id. See Goff v. Armbrecht Motor Truck Sales, Inc., supra. Here, we cannot say that appellant even “foresaw” any consequences of its action, the consignment, in Pennsylvania.

In Bev-Mark, Inc. v. Summerfield GMC Truck Co., supra, an Indiana car repair shop on Interstate Route 80 was not held within Pennsylvania long-arm jurisdiction because the defendant did not solicit Pennsylvania customers, a miniscule percentage of defendant’s customers had Pennsylvania license plates, no merchandise was shipped, and defendant “could not have reasonably foreseen that the transaction would have consequences” in Pennsylvania. Supra 268 Pa.Super. at 79, 407 A.2d at 446. Similarly, in Jacobs v. Lakewood Aircraft Service, 498 F.Supp. 46 (E.D.Pa.1980), a New Jersey corporation that repaired aircraft advertised one time in a Pennsylvania flyer for the Reading Air Show, repaired a plane that defendant knew was headed for Pennsylvania and was then sued for negligent repair after an accident in Pennsylvania. The court held that Pennsylvania lacked jurisdiction because “the transportation of the airplane to Pennsylvania was, so far as defendant is concerned, completely fortuitous. It made no difference to defendant whether it went to Maryland or Connecticut or even remained in New Jersey. Defendant’s connection with the aircraft was entirely in New Jersey.” Id. at 48. But see Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 496 (5th Cir.1974) (“defendant’s contacts with the forum were deliberate rather than fortuitous, so that the possible need to invoke the benefits and protections of the forum’s law was reasonably foreseeable, if not forseen, rather than a surprise.”) Here, it was clearly fortuitous that the man-lift was sold to a Pennsylvania company. It could just as easily have been sold to a Wisconsin, mid-western or foreign company. Because appellant could not have reasonably foreseen consequences in Pennsylvania, we find that appellant has not purposely availed itself of the benefits and protections of Pennsylvania law.

Secondly, the cause of action did not arise from appellant’s activity within Pennsylvania. Any modification of the man-lift performed by appellant occurred in Wisconsin and not as a result of any contacts appellant maintained with Pennsylvania. See Union National Bank of Pittsburgh v. L.D. Pankey, 284 Pa.Superior Ct. 537, 426 A.2d 624 (1980) (jurisdiction improper where appellees took no action in Pennsylvania that in any way resulted in appellant’s decedent’s death in Florida) but see Hart v. McCollum, 249 Pa.Superior Ct. 267, 376 A.2d 644 (1977) (jurisdiction proper where New Jersey bar consistently advertised in Philadelphia papers such that “in a meaningful manner, appellant’s cause of action arose from defendant’s activity in this forum. Moreover, the ads contemplated inducing patrons to drive to and from New Jersey to use the lounge. That is, the ads induced the very act which led to the accident.” Id., 249 Pa.Superior Ct. at 274, 376 A.2d at 648.)

Finally, we find the exercise of jurisdiction over appellant unreasonable.

[T]he determination of whether an exercise of jurisdiction is reasonable depends on the burden that would be imposed on the defendant, in light of several factors, including the forum state’s interest in resolving the dispute; the plaintiff’s interest in obtaining convenient and effective relief; the interstate judicial system’s interest in the most efficient resolution of the controversy; and the interest of the several states in furthering substantive social policies.

Kingsley & Keith (Canada) Ltd., supra 291 Pa.Super. at 109, 435 A.2d at 591, quoting World-Wide Volkswagen Corp., supra 444 U.S. at 292, 100 S.Ct. at 564. The inconvenience imposed on appellant should jurisdiction be exercised, coupled with the lack of contacts between appellant and Pennsylvania that due process would require, more than outweigh the other considerations. Appellant does not manufacture or sell products, but instead is engaged only in factory and warehouse construction. Nor has appellant ever constructed a building or solicited business in Pennsylvania. Rather, ninety percent of its construction during the past decade was done in Wisconsin and the remaining ten percent was done in states other than Wisconsin at the request of a local customer. (N.T. August 1, 1980, at 67a.) Even the auction, although conducted by a Nebraska firm, took place in Wisconsin. The man-lift never left Wisconsin while it was owned by appellant. As in Bev-Mark, Inc., supra, “there is nothing to indicate that any contact with [Pennsylvania] by appellant influenced [the parties situated in Pennsylvania] to patronize appellant.” Id. 268 Pa.Super. at 81, 407 A.2d at 446.

Thus, we find it unreasonable to find appellant subject to Pennsylvania’s jurisdiction through such attenuated contacts with the Commonwealth and, accordingly, reverse the order of the lower court.

Reversed.

      . 42 Pa.C.S.A. § 5322(a)(4) is as follows:
      (a) General Rule—
      A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under the subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
      (4) Causing harm or tortious injury by an act or omission in this Commonwealth.

      . 42 Pa.C.S.A. § 5322(b) is as follows:
      (b) Exercise of full constitutional power over nonresidents— In addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.

      . Appellees’ reliance on cases involving indirect shipments of goods through middlemen is misplaced because those cases generally involve, “the manufacture of products presumably sold in contemplation of use [in the forum] ...” such that “it should not matter that the purchase was made from an independent middleman or that someone other than defendant shipped the product into the state.” Goff v. Armbrecht Motor Truck Sales, Inc., 284 Pa.Superior Ct. 544, 554, 426 A.2d 628, 633 (1980), quoting Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). The auction here was an isolated event, not promoting a constant stream of products from Wisconsin to Pennsylvania. Furthermore, unlike the relationship between a manufacturer and a middleman distributor, when both parties are in the business of distributing products to all available markets, appellant desired only to rid itself of excess equipment, which it did not normally sell, and consigned it to a mid-western auction house that invited potential buyers for its own purposes.


author: VAN der VOORT, Judge:

text:
    452 A.2d 870
    Thomas ANFUSO, Administrator of the Estate of Nicole Marie Anfuso, Deceased v. ERIE INSURANCE GROUP, Appellant.
    Superior Court of Pennsylvania.
    Argued April 7, 1981.
    Filed Nov. 19, 1982.

      Michael P. Shay, Bethlehem, for appellant.
    Glenn D. McGogney, Allentown, for appellee.
    Before SPAETH, CAVANAUGH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

The issue in this case is whether the estate of a nine year old child who was killed in an automobile accident is entitled to recover work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. 1009.101, et seq.

The facts are not in dispute. Nicole Marie Anfuso, a nine-year-old girl, was struck and killed by a motor vehicle on August 22, 1979, while operating her bicycle on Middle-town Road in Bethlehem, Pennsylvania. Erie Insurance Group, the appellant herein, had issued a policy of automobile insurance to Thomas Anfuso, father of the child and appellee herein, which provided benefits pursuant to the requirements of the Pennsylvania No-Fault Act. The appel-lee was appointed administrator of his daughter’s estate. In that capacity, he demanded payment from the appellant of work loss benefits of $15,000 because of the death of his daughter. The appellant denied liability and refused payment. The appellee then petitioned for a Declaratory Judgment that, as the administrator of his daughter’s estate, he was entitled to recover work loss benefits on her behalf. The Court below issued a Declaratory Judgment to that effect, but without determining the amount of those benefits because of lack of evidence on the issue. A Court en banc dismissed appellant’s Exceptions and entered the Declaratory Judgment as the final judgment of the Court below.

The appellant has appealed from that ruling, contending: (1) that a nine-year-old child who has never been a member of the labor force would not be entitled to recover for work loss under the No-Fault Act; and, (2) even if she were so entitled, her estate may not recover such compensation on her behalf. We cannot accept either conclusion.

It is the appellant’s argument that had the victim been permanently injured rather than killed, she would not have been entitled to work loss benefits because she obviously had no record of earnings in the work force, and her entry into the work force could not have taken place for at least seven years after the accident. It is appellant’s position that this time lapse would have deprived her of the right to work loss benefits because it would be beyond any of the time periods allowed by the No-Fault Act for the filing of an action to recover benefits. 40 P.S. 1009.106(c).

This argument confuses the limitations on the period within which an action may be filed with the accrual period within which income would presumably have been earned had the accident not intervened. The accrual period, while not defined in the Act, is defined in the Insurance Department regulations as “the number of weeks or fractions of weeks the victim sustains loss of income”. 31 PA. Code 66.1-205(a)(2). The accrual period of work loss for the child in this case would be her entire work-life expectancy, which can be actuarialy calculated. The fact that her work life could not have begun for at least seven years after the accident is no barrier to a suit for work loss benefits if the suit is filed within the period mandated by Section 106(c) of the No-Fault Act. The time limitations of Section 106(c) apply to the filing of a suit, but have no relevancy to the time period within which the child would have been in the work force.

The fact that the victim had never entered the work force prior to her fatal accident is no deterrent to the calculation of a work loss benefit. Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super.Ct. 344, 447 A.2d 999 (1982). Section 205 of the No-Fault Act provides formulas for determining work loss benefits of a victim whether regularly employed, seasonably employed, or unemployed. The Section also provides that in the absence of a showing that income earned would have been some other amount, the income of one without an employment record shall be assumed to be the income of a production or non-supervisory worker in the non-farming industry.

We conclude that Nicole Marie Anfuso would have been entitled to work loss benefits had she been permanently injured rather than killed. Normally all causes of action, other than libel or slander, survive the death of the party and may be pursued by the representative of his estate. Such benefits survived her death and vest in her personal representative by the terms of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. §§ 3371-3. ■

The appellant contends that even if this be true, her estate may not recover work loss compensation on her behalf. The argument runs that at the time the child was killed, the No-Fault Act did not authorize the estate of a victim of a fatal accident to recover work loss benefits; that a recent interpretation of the statute to the contrary by this Court should not be given retroactive application; and that even if such a ruling were to be applied retroactively to this case, work loss benefits are to be treated as an extension of survivor’s benefits, payable only to one who qualifies as a survivor, namely, a spouse, child, parent, brother, sister or relative dependent upon the deceased for support, as defined by Section 103 of the No-Fault Act.

None of these arguments is valid. Both this Court and the Supreme Court have construed the No-Fault Act as vesting in the estate of a deceased victim the right to recover work loss benefits. Freeze, supra.; Chesler v. Government Employees Insurance Company, 302 Pa.Super.Ct. 356, 448 A.2d 1080 (1982); Heffner v. Allstate Insurance, 265 Pa.Super.Ct. 181, 401 A.2d 1160 (1979), affirmed, Allstate Insurance Co. v. Heffner and U.S. Fidelity and Guaranty Co. v. Pontius, 491 Pa. 447, 459-60, 421 A.2d 629, 636 (1980).

Prior to these decisions, the Pennsylvania insurance industry had taken the position that work loss benefits were not recoverable by the estate of a victim of a fatal accident. But their position represented only a litigant’s interpretation of the statute, even though supported by four Common Pleas decisions, two of which were reversed in Heffner.

We ruled in Daniels v. State Farm Mutual Auto Insurance Co., 283 Pa.Super.Ct. 336, 343, 423 A.2d 1284, 1288 (1980) that Heffner did not represent a change in the No-Fault statute. Rather, it was an interpretation of the Act not previously decided by an Appellate Court of this Commonwealth. This interpretation of the statute is to be regarded as part of the legislation from the time of its enactment. We stated (283 Pa.Superior Ct. at 343, 423 A.2d 1284):

However, Heffner did not change the law; it rather decided an issue of statutory construction not previously decided by an appellate court. Such an interpretation of legislative intent is regarded as part of a statute from the time the statute was enacted. Harry C. Erb, Inc. v. Schell Construction Co., Inc., 206 Pa.Super.Ct. 388, 213 A.2d 383 (1975); Buradus v. General Cement Products, 356 Pa. 349, 52 A.2d 205 (1947). Thus our decision in Heffner did not create a new right to work loss benefits. That right existed all along.

Consequently, the basis for the argument that the right of an estate to recover work-loss benefits, first established in Heffner, should not have retroactive application disappears.

The appellant’s next contention is that Heffner should be interpreted simply as an enlargment or redefination of a survivor’s loss benefit, and that the administrator-appellee in this case has no standing to bring suit because he does not qualify as a survivor “dependent upon the deceased for support.” 40 P.S. 1009.103. We ruled otherwise in Freeze and Heffner as well as in Pontius v. U.S. Fidelity and Guaranty Co., which was reversed by us without opinion on the authority of Heffner and affirmed by the Supreme Court as part of its ruling in Allstate Insurance Co. Our position in the matter was explained in Daniels, where we stated 283 Pa.Super. at 343, 423 A.2d 1284:

Contrary to appellee’s suggestion, in Heffner we did not redefine survivor’s loss; we simply analyzed the distinctions between work loss and survivor’s loss, noting that in the case of a deceased victim the work loss claim is comparable to a survival action and the survivor’s loss claim is comparable to a wrongful death action.

A work loss benefit under the No-Fault Act “is simply providing a certain measure of Survival Act damage on a no-fault basis”. Heffner, 491 Pa. 447, 459, 421 A.2d 629. Pursuing this analogy, we note that under the Survivor’s Act, 42 Pa.C.S. § 8302, substantial recoveries have been awarded for work loss to estates of children less than nine years of age. Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971); Weaver v. Ford Motor Co., 382 F.Supp. 1068 (E.D.Pa.1974).

The Declaratory Judgment of the Court below that the appellee, as administrator of the estate of Nicole Marie Anfuso, has the right to recover work loss benefits from the appellant on behalf of the deceased under the Pennsylvania No-Fault Act and the policy of insurance issued by the appellant pursuant thereto, is affirmed.


text:
    October 8, 1982.
    452 A.2d 36
    Commercial Banking Corp. v. Smith, et al., Appellants.
    Petition for Allowance of Appeal Denied Jan. 6, 1983.
    Argued June 21, 1982.
    William S. Huganir, for appellants;
    Marc S. Weisberg, for appellee.

      Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Order affirmed.


text:
    452 A.2d 37
    Commonwealth v. Balliet, Appellant.
    Submitted April 5, 1982.
    Nicholas M. Zanakos, Assistant Public Defender, for appellant, Donald Corriere, District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 37
    Commonwealth v. Bodnar, Appellant.
    Petition for Allowance of Appeal Denied Feb. 17, 1983.
    Submitted February 2, 1982.
    Patrick J. Flannery, Assistant Public Defender; for appellant;
    Chester B. Muroski, District Attorney, for Commonwealth, appellee.

      Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   The order of the learned Luzerne County Common Pleas Court Judge Bernard J. Podcasy is affirmed.


text:
    452 A.2d 37
    Commonwealth v. Forte, Appellant.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.
    Submitted February 18, 1982.
    Robert B. Mozenter, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, ap-pellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 554
    Commonwealth v. Griffin, Appellant.
    Reargument Denied Nov. 30, 1982.
    Petition for Allowance of Appeal Denied March 4, 1983.

      Argued June 2, 1982.
    Stanley M. Shingles, for appellant;
    Marianne E. Cox, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 38
    Commonwealth v. Hale, Appellant.
    Submitted May 5, 1982.
    Daniel A. Rendine, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 38
    Commonwealth v. Hartman, Appellant.
    Submitted December 9, 1981.
    Robert L. Van Hoove, for appellant;
    George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Judgment of sentence is affirmed.


text:
    452 A.2d 38
    Commonwealth v. Hawkins, Jr., Appellant.
    Submitted December 9, 1981.
    Ronald J. Wydo, for appellant;
    Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.


text:
    452 A.2d 38
    Commonwealth v. Jackson, Appellant.
    Submitted April 27, 1982.
    Norman A. Levine, for appellant;
    Donald E. Williams, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 39
    Commonwealth v. Kelly, Appellant.
    Argued May 10, 1982.
    John J. Duffy, for appellant;
    Joseph W. Carroll, III, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Judgment of sentence affirmed.

HOFFMAN, J., filed a memorandum dissenting statement.


text:
    452 A.2d 39
    Commonwealth v. Krajci, Appellant.
    Argued December 8, 1981.
    Malcolm W. Berkowitz, J.D., for appellant;
    Steven J. Cooperstein, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   Affirmed.


text:
    452 A.2d 39
    Commonwealth v. Mays, Appellant.
    Petition for Allowance of Appeal Denied Feb. 11, 1983.
    Submitted May 27, 1981.
    John G. Veith, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and McEWEN, JJ.
   The order of the distinguished Philadelphia Common Pleas Court Judge Edward J. Blake is affirmed.


text:
    452 A.2d 40
    Commonwealth v. McAllister, Appellant.
    Submitted June 2, 1982.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 40
    Commonwealth v. Murphy, Appellant.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.
    Submitted November 10, 1981.
    John H. Corbett, Jr., Assistant Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 40
    Commonwealth v. Rivera, Appellant.
    Submitted November 17, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The judgment of sentence of the learned Lancaster County Common Pleas Court Judge Paul A. Mueller, Jr. is affirmed.


text:
    452 A.2d 40
    Commonwealth v. Royster, Appellant.
    Petition for Allowance of Appeal Denied Feb. 14, 1983.
    Submitted November 6, 1981.
    Barnaby C. Wittels, for appellant;
    Steven J. Cooperstein, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   Affirmed.

SPAETH, J., concurred in the result.


text:
    452 A.2d 41
    Commonwealth v. Santana, Appellant.
    Petition for Allowance of Appeal Denied Feb. 7, 1983.
    Submitted January 12, 1982.
    John H. Corbett, Assistant Public Defender, for appellant;
    Robert L. Eber-hardt, Deputy District Attorney, for Commonwealth, appel-lee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 41
    Commonwealth v. Snipes, Appellant.
    Argued March 30, 1982.
    Alan M. Shpigel, for appellant;
    Deborah Fox, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    453 A.2d 22
    Estate of Schofield, etc. Appeal of Lawrence F. Hitchon.
    Reargument Denied Dec. 20, 1982.
    Petition for Allowance of Appeal Granted Sept. 23, 1983.
    Argued January 11, 1982.
    Peter M. Suwak, for appellant;
    Jerry B. Landis, for Vitullo, participating party;
    Kenneth E. Lewis, for Heirs, participating party.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Order affirmed.


text:
    452 A.2d 555
    In re Property of Anvil. Appeal of Anvil, Inc.
    Reargument Denied Nov. 29, 1982.
    Submitted June 21, 1982.
    Richard D. Abbott, for appellant;
    Maurice M. Green, for participating party.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   The order of the learned Chester County Common Pleas Court Judge Lawrence E. Wood is affirmed.


text:
    452 A.2d 41
    Krippendorff, Appellant v. Krippendorff.
    Argued March 31, 1982.
    Charles C. Shainberg, for appellant,
    Mary Cushing Doherty, for appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge James L. Stern is affirmed.


text:
    452 A.2d 42
    Leisher, et ux., Appellants v. Givens, Jr., ex ux., et al.
    Petition for Allowance of Appeal Denied June 13, 1983.
    Argued December 15, 1981.
    Daniel K. Deardoroff, for appellants;
    Mr. and Mrs. Frank Moore, appellees, in propria persona.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Order affirmed.


text:
    452 A.2d 42
    Manse, et ux. v. Stewart, et ux., Appellants.
    Argued December 14, 1981.
    Richard A. James, for appellants;
    William George, for appellees.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Order affirmed.

POPOVICH, J., concurred in the result.


text:
    452 A.2d 42
    Mlynek v. Lowry, Appellant.

      Submitted November 4, 1981.
    Chester A. Reybitz, for appellant;
    Emil W. Kantra, III, for appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   Order affirmed.


text:
    452 A.2d 42
    Navoroli v. Garvin, Appellant.
    Petition for Allowance of Appeal Denied March 3, 1983.
    Argued January 12, 1982.
    Ronald M. Buick, for appellant;
    Robert B. Truel, for appellee.
    Before HESTER, BECK and VAN der YOORT, JJ.
   Order affirmed.


text:
    452 A.2d 43
    Pachuki, Appellants v. Lucas.
    Argued November 5, 1981.
    James McGarrity, for appellants;
    Arthur B. Walsh, for appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   Order affirmed.


text:
    452 A.2d 556
    Platts v. U. of Penn., et al., Appellants.
    Reargument Denied Dec. 10, 1982.
    Petition for Allowance of Appeal Denied March 24, 1983.
    Argued June 3, 1982.
    J. Paul Erwin, Jr., for appellants;
    Stephen W. Bruccoliri, for appel-lee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Order affirmed.


text:
    457 A.2d 578
    Solomos v. Septa. Appeal of Southeastern Pennsylvania Transportation.
    Petition for Allowance of Appeal Denied March 22, 1983.
    Argued November 16, 1981.
    Norman Hegge, Jr., for appellant;
    Jill Douthett, Deputy City Solicitor, for City, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Louis G. Hill is affirmed.


text:
    452 A.2d 43
    Sound Entertainment, Appellant v. Cohen, et al.
    Argued April 7, 1982.
    Edward Benoff, for appellant;
    Paul Leon Herron, for Cohen, appellee;
    James W. Sutton, Jr., for Forman, et al., appellees.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Decree affirmed.


text:
    452 A.2d 43
    Williams, Appellant v. Radio Cab Co., et al.
    Submitted May 11, 1982.
    Ronald J. Harper, for appellant;
    Lynn Susan Palenscar, for Penn, appellee;
    Joseph L. Ditomo, Jr., for Jarrett, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Judgment affirmed.


text:
    October 15, 1982.
    452 A.2d 43
    Alamon, etc. v. Marisco, et al., Appellants.
    Argued February 22, 1982.
    Roger Joseph Harrington, for appellants;
    Patrick Geckle, for appellees.
    Before SPAETH, BROSKY and BECK, JJ.
   The order of the court is affirmed.


text:
    452 A.2d 44
    Bank, Appellant v. Bank.
    Argued June 21, 1982.
    Mary Bell Hammerman, for appellant;
    John D’Angelo, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Appeal quashed.


text:
    452 A.2d 44
    Clark v. Fry, Appellant.
    Argued November 9, 1981.
    Charles F. Gilchrest, for appellant;
    Thomas T. Frampton, for appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   Judgments affirmed.


text:
    452 A.2d 44
    Commonwealth v. Abood, Appellant.
    Submitted June 22, 1982.
    Robert T. Gownley, Jr., Assistant Public Defender, for appellant;
    Ernest D. Preate, Sr., District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Judgment of sentence affirmed. The jurisdiction of the Superior Court of Pennsylvania is relinquished and the lower court is directed to enforce its sentence.


text:
    452 A.2d 44
    Commonwealth v. Allen, Appellant.
    Submitted January 27, 1982.
    Mildred A. Molino, for appellant;
    Donald B. Corriere, District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.

WIEAND, J., filed a memorandum dissenting opinion.


text:
    452 A.2d 45
    Commonwealth v. Burgos, Appellant.
    Submitted June 21, 1982.
    Kenneth L. Mirsky, for appellant;
    Deborah Fox, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 45
    Commonwealth v. Colon, Appellant.
    Submitted December 8, 1981.
    Salvatore J. Cucinotta, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appel-lee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   Order affirmed.


text:
    452 A.2d 45
    Commonwealth v. David, Appellant.
    Submitted April 22, 1982.
    Nicholas M. Zanakos, Assistant Public Defender, for appellant;
    Donald B. Corriere, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 46
    Commonwealth v. Davis, Appellant.
    Submitted February 24, 1982.
    Patrick J. Flannery, Assistant Public Defender, for appellant;
    Chester B. Muroski, District Attorney, for Commonwealth, appellee.

      Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   The judgment of sentence of the learned Luzerne County Common Pleas Court Judge Arthur D. D’Alessandro is affirmed.


text:
    452 A.2d 46
    Commonwealth v. Duca, Appellant.
    Petition for Allowance of Appeal Denied Jan. 20, 1983.
    Submitted January 18, 1982.
    Benjamin Lerner, Assistant Public Defender, for appellant;
    Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 46
    Commonwealth v. Ferry, Appellant.
    Submitted January 13, 1982.
    Kurt S. Rishor, for appellant;
    John H. Brydon, District Attorney, for Commonwealth, appellee.

      Before HESTER, BECK and VAN der VOORT, JJ.
   Order affirmed.


text:
    452 A.2d 46
    Commonwealth v. Hamilton, Appellant.
    Petition for Allowance of Appeal Denied Feb. 17, 1983.
    Submitted November 16, 1981.
    Douglas M. Johnson, Assistant Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., McEWEN and HOFFMAN, JJ.
   The judgment of sentence of the learned 44th Judicial District Common Pleas Court Judge Roy A. Gardner is affirmed.


text:
    452 A.2d 47
    Commonwealth v. Jordan, Appellant.
    Submitted January 27, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, CAVANAUGH and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 47
    Commonwealth v. Massie, Appellant.
    Submitted March 16, 1982.
    John Kent Lewis, for appellant;
    Edward J. Tocci, District Attorney, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The order of the court is affirmed.


text:
    452 A.2d 47
    Commonwealth v. Murphy, Appellant.
    Petition for Allowance of Appeal Denied May 12, 1983.
    Submitted April 5, 1982.
    Gary Spohn Fronheiser, Assistant Public Defender, for appellant;
    George C. Yatron, District Attorney, for Commonwealth, appellee.

      Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 48
    Commonwealth v. Richardson, Appellant.
    Argued January 13, 1982.
    David G. Rothey, Assistant Public Defender, for appellant;
    Dara A. DeCourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 48
    Commonwealth v. Rivera, Appellant.
    Submitted June 22, 1982.
    Joseph C. Spaulding, for appellant;
    Nancy Dena Wasser, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Judgment of sentence affirmed. Jurisdiction of the Superior Court of Pennsylvania is relinquished and the lower court is directed to enforce its sentence.


text:
    452 A.2d 48
    Commonwealth v. Ross, Appellant.
    Submitted June 21, 1982.
    Vincent T. Snyder, for appellant;
    Gail Thackery, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Judgment of sentence (Nos. 1533 and 1534 May Term, 1980) affirmed; appeal dismissed with respect to No. 1535 May Term, 1980.


text:
    452 A.2d 48
    Commonwealth, Appellant v. Schratz.
    Submitted January 13, 1982.
    William G. Martin, for appellant;
    Ralph L.S. Montana, for appellee.

      Before HESTER, BECK and VAN der VOORT, JJ.
   Order affirmed.


text:
    452 A.2d 49
    Commonwealth v. Small, Jr., Appellant.
    Submitted February 24, 1982.
    Douglas M. Johnson, Public Defender, for appellant;
    Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   The order of the learned Montgomery County Common Pleas Court Judge Vincent A. Cirillo is affirmed.


text:
    452 A.2d 49
    Commonwealth v. Smith, Appellant.
    Petition for Allowance of Appeal Denied March 3, 1983.
    Argued April 27, 1982.
    Steve Peter Leskinen, for appellant;
    Gerald R. Solomon, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 49
    Commonwealth v. Spiegel. Appeal of Carl D. Potnick.
    Argued December 14, 1981.
    Carl D. Potnick, appellant, in propria persona;
    Michael S. Goodwin, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Order affirmed.


text:
    452 A.2d 50
    Commonwealth v. Spina, Appellant.
    Submitted December 9, 1981.
    John J. Thomas, Assistant Public Defender, for appellant;
    Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The judgment of sentence of the learned Luzerne County Common Pleas Court Judge Arthur D. D’Alessandro is affirmed.


text:
    452 A.2d 50
    Commonwealth v. Stays, Appellant.
    Submitted June 23, 1982.
    Douglas M. Johnson, Public Defender, for appellant;
    Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Judgment of sentence affirmed. Jurisdiction of the Superior Court of Pennsylvania is relinquished and the lower court is directed to enforce its sentence.

LIPEZ, J., filed a memorandum dissenting opinion.


text:
    452 A.2d 50
    Commonwealth v. Terrizzi, Appellant.
    Submitted February 24, 1982.
    Thomas G; Klingensmith, Assistant Public Defender, for appellant;
    Michael H. Ranck, District Attorney, for Commonwealth, ap-pellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   The order of the learned Lancaster County Common Pleas Court Judge D. Richard Eckman is affirmed.


text:
    452 A.2d 51
    Commonwealth v. Walker, Jr., Appellant.
    Submitted February 17, 1982.
    William F. Ochs, Public Defender, for appellant;
    George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   The judgment of sentence is affirmed.


text:
    452 A.2d 51
    Dixon, Jr., Appellant v. Frey, et al. v. Roos.
    Argued June 15, 1982.
    C. Gates, Jr., for appellant;
    John E. Hall, for Frey, appellees;
    Robert L. Federline, for Roos, appellee;
    Robert W. Murdock, for College Apts., appellee;
    William C. Robinson, for Kulbacki, et al., appellees;
    Leo M. Stepanian, for Buck, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   The order of September 28, 1981 is affirmed.


text:
    452 A.2d 51
    Eckert v. Majot, Appellant.
    Petition for Allowance of Appeal Granted Feb. 3, 1983.
    Argued May 19, 1982.
    Russell F. Daiello, Jr., for appellant;
    Perry S. Patterson, for appellees.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Order affirmed.


text:
    452 A.2d 51
    Katz, Appellant v. Mutual of Omaha.
    Argued November 5, 1981.
    Jeffrey S. Kahn, for appellant;
    Richard M. Jordan, for appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   Order affirmed.


text:
    453 A.2d 22
    O’Neill, et al. v. Pretz, et al. Appeal of Glasgow Equipment Corp. Madden v. Glasgow, Inc. Appeal of Glasgow Equipment Corp.
    Reargument Denied Dec. 17, 1982.
    Petition for Allowance of Appeal Denied March 1, 1983.
    Argued February 23, 1982.
    Richard W. Hopkins, for appellant;
    M. Mark Mendel, for O’Neill, appellee (at No. 860);
    Jeffrey M. Freedman, for Madden, appellee (at Nos. 861 & 862).
    Before SPAETH, BROSKY and BECK, JJ.
   Order affirmed.

SPAETH, J., concurred in the result.


text:
    452 A.2d 52
    Rodin v. Dick Mackey Contracting Co., Inc., Appellant.
    Submitted December 8, 1981.
    William Za-charellis, for appellant;
    Myles R. Wren, for appellees.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The order of the learned Lackawanna County Common Pleas Court Judge S. John Cottone is affirmed.


text:
    452 A.2d 52
    Sound Entertainment, Appellant v. Forman, et al.
    Argued April 7, 1982.
    Edward Benoff, for appellant;
    James W. Sutton, Jr., for Forman, et al., appellees;
    John Wickham Berresford, for Bell of PA, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Decree affirmed.


text:
    452 A.2d 52
    Williams & Burkholder v. Rocket Citrus Prod., Appellant.
    Argued May 20, 1982.
    Henry E. Rea, Jr., for appellant;
    John Albert Miller, for appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Judgment affirmed.


text:
    October 22, 1982.
    452 A.2d 52
    Alfrey, et al., Appellants v. Darrah, et al.
    Argued February 22, 1982.
    Catherine M. Harper, for appellants;
    Robert L. White, for Darrah, appellee;
    Robert Adam Sloan, for Home Agency, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Affirmed.


text:
    452 A.2d 53
    Anthony v. Harleysville Ins. Co., Appellant. Anthony, Appellant v. Harleysville Ins. Co.
    Argued June 9, 1982.
    Robert D. Kodak, for appellant (at No. 2955) and for appel-lee (at No. 2956);
    Hubert Xavier Gilroy, for appellant (at No. 2956) and for appellee (at No. 2955).
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Order affirmed.


text:
    452 A.2d 53
    Chechak, Appellant v. Consolidated Rail Corp.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.
    Submitted October 15, 1981.
    Thomas L. Cooper, for appellant;
    Aloysius F. Mahler, for appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   Order affirmed.


text:
    452 A.2d 53
    Commonwealth v. Aaron, Appellant.
    Petition for Allowance of Appeal Denied April 19, 1983.
    Submitted November 10, 1981.
    Ivan S. Abrams, for appellant;
    James Lees, Assistant District Attorney, for Commonwealth, appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 54
    Commonwealth, Appellant v. Black, Sr.
    Argued January 27, 1981.
    James Knoll Gardner, Assistant District Attorney, for Commonwealth, appellant;
    Richard J. Orloski, for appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   Order affirmed.


text:
    452 A.2d 54
    Commonwealth v. Brooks, Appellant.
    Submitted March 15, 1982.
    Wayne S. Lipecky, for appellant;
    Edward J. Tocci, District Attorney, for Commonwealth, ap-pellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The order of the lower court is affirmed.


text:
    452 A.2d 54
    Commonwealth v. Bryant, Appellant.

      Submitted January 13, 1982.
    David G. Metinko, Assistant Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 54
    Commonwealth v. Clarke, Appellant.
    Submitted February 3, 1982.
    Michael Wilder, Assistant Public Defender, for appellant;
    Michael J. Kane, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   The judgment of sentence of the learned Bucks County Common Pleas Judge Isaac S. Garb is affirmed.


text:
    452 A.2d 55
    Commonwealth v. Eakin, Appellant.

      Argued October 26, 1981.
    James M. Greenfield, for appellant;
    William G. Martin, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and JOHNSON, JJ.
   The judgment of sentence is affirmed.


text:
    452 A.2d 55
    Commonwealth v. Gaidos, Appellant.
    Submitted February 19, 1981.
    John D. Enck, for appellant;
    David Brightbill, District Attorney, for Commonwealth, appellee.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.
   Order affirmed.


text:
    452 A.2d 55
    Commonwealth v. Kerins, Appellant.
    Submitted April 21, 1982.
    Donald C. Marino, for appellant;
    Alan Sacks, Assistant District Attorney, for Commonwealth, ap-pellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 56
    Commonwealth v. Kibler, Appellant.
    Petition for Allowance of Appeal Granted April 27, 1983.
    Submitted December 16, 1981.
    Douglas M. Johnson, Assistant Public Defender, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The order of the learned Montgomery County Common Pleas Court President Judge Richard S. Lowe is affirmed.


text:
    452 A.2d 56
    Commonwealth v. Lucas, Appellant.

      Submitted February 3, 1982.
    Gary A. Delafield, for appellant;
    David Edward Grine, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   The judgment of sentence of the learned Centre County President Judge Charles C. Brown, Jr., is affirmed.


text:
    452 A.2d 56
    Commonwealth v. Marrero a/k/a Cruz, Appellant.
    Submitted May 11, 1982.
    Joseph C. Santaguida, for appellant;
    Gail Thackeray, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 56
    Commonwealth v. Matthews, Appellant.

      Submitted June 23, 1982.
    Thomas Bruno, II, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Order affirmed.


text:
    452 A.2d 57
    Commonwealth v. Peluso, Appellant.
    Submitted November 18, 1981.
    Frederick J. Lanshe, for appellant;
    William Platt, District Attorney, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 57
    Commonwealth v. Rhodes, Appellant.
    Argued September 28, 1981.
    Hiram A. Carpenter, Ill, for appellant;
    Oliver E. Mattas, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    October 29, 1982.
    452 A.2d 57
    American Asphalt Pav. v. Wilkes-Barre Redvlp., Appellant.
    Argued December 9, 1981.
    Charles A. Shaffer, for appellant;
    James P. Harris, Jr., for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Judgment affirmed.


text:
    452 A.2d 58
    Arena, etc. et al., Appellants v. Heilman, et al.
    Argued June 10, 1980.
    Edwin L. Guyer, submitted a brief on behalf of appellants;
    Albert R. Subers, for appellees.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    453 A.2d 23
    Bednar, et al., Appellants v. Haywood.
    Reargument Denied Dec. 30, 1982.
    Petition for Allowance of Appeal Denied May 16, 1983.
    Argued January 12, 1982.
    Cleandra Bednar and Todd Burton, appellants, in propria persona;
    Norman G. Haywood, appellee, in propria persona.
    Before HESTER, 'BECK and VAN der VOORT, JJ.
   Order affirmed.


text:
    452 A.2d 58
    Brown, Zajacek & Roth v. Ronca, et al. Appeal of Donald J. Ronca.
    Submitted April 6, 1982.
    Peter Senzer Steinberger, for appellant;
    Kent Herman, for Brown, appellee;
    Joseph M. Reibman, for Wein-Ron, appel-lee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Order affirmed.


text:
    452 A.2d 58
    Commonwealth v. Berman, Appellant.
    Submitted December 14, 1981.
    Vincent A. Couchara, for appellant;
    Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The order of the learned Montgomery County Common Pleas Court Judge Horace A. Davenport is affirmed.


text:
    452 A.2d 58
    Commonwealth v. Brock, Appellant.
    Submitted April 28, 1982.
    John H. Corbett, Jr., Assistant Public Defender, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    452 A.2d 59
    Commonwealth v. Brown, Appellant.
    Submitted February 24, 1982.
    F.F. Troncelliti, for appellant;
    Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   Order affirmed.


text:
    452 A.2d 59
    Commonwealth v. Brown, Appellant.
    Submitted April 22, 1982.
    Douglas M. Johnson, Public Defender, for appellant;
    Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 59
    Commonwealth v. Bruce, Appellant.
    Submitted June 27, 1978.
    Robert A. Longo, for appellant;
    Ronald L. Buckwalter, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., MONTGOMERY and HOFFMAN, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    452 A.2d 60
    Commonwealth v. Campbell, Appellant.
    Petition for Allowance of Appeal Denied Jan. 11, 1983.
    Submitted April 23, 1982.
    Vincent J. Quinn, for appellant;
    Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgments of sentence affirmed.


text:
    452 A.2d 60
    Commonwealth v. Davis, Appellant.
    Submitted April 6, 1982. Louis
    G. Retaceo, for appellant;
    Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 60
    Commonwealth v. Dennis, Appellant.
    Submitted May 10, 1982.
    Rolfe C. Marsh, Assistant Public Defender, for appellant;
    Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 60
    Commonwealth v. Fenning, Appellant.
    Petition for Allowance of Appeal Denied Feb. 24, 1983.
    Submitted March 9, 1982.
    Charles L. Pelletreau, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Order affirmed.


text:
    452 A.2d 61
    Commonwealth v. Fulton, Appellant.
    Submitted April 6, 1982.
    Joseph N. Bongiovanni, III, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.

CAVANAUGH, J., concurred in the result.


text:
    452 A.2d 61
    Commonwealth v. Gordon, Appellant.
    Petition for Allowance of Appeal Denied Feb. 1, 1983.
    Submitted May 11, 1982.
    Norris E. Gelman, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Affirmed.

HOFFMAN, J., dissented.